1. Introduction

State v. Brown is a “no-corpse” homicide appeal arising from the 2022 jury conviction of Bernard Brown for Murder in the Second Degree for the disappearance of his former girlfriend, Moreira Monsalve, last seen on January 12, 2014. The State’s case was entirely circumstantial: Monsalve abruptly vanished, her personal effects were found discarded (including a smashed cellphone), and electronic-account activity suggested her phone and accounts were used in a way inconsistent with Brown’s account of her leaving his apartment.

The appeal presented a wide array of issues: (1) sufficiency of evidence in a no-body murder; (2) whether Brown’s January 14, 2014 interview required Miranda warnings under Hawaiʻi’s “bright-line” custody doctrine; (3) whether a prosecutor-issued subpoena could lawfully obtain basic ISP subscriber information (especially Brown’s subscriber name linked to an IP address) under Hawaiʻi’s heightened privacy protections; (4) alleged prosecutorial misconduct in closing argument (“we know”); (5) whether the trial court plainly erred by omitting unanimity and lesser-included-offense instructions; (6) alleged defects in the indictment under State v. Jardine; (7) due process prejudice from pre-indictment delay; and (8) claimed grand jury irregularities (hearsay, victim-impact testimony, and “re-shopping”).

2. Summary of the Opinion

3. Analysis

3.1. Precedents Cited and Their Role

No-corpse murder and circumstantial proof. The court anchored sufficiency analysis in:

• Territory v. Duvauchelle (1925): confirms a murder conviction may rest on strong circumstantial evidence even without a body and without an eyewitness to the killing.
• State v. Torres (Torres I) (App. 2009), affirmed and corrected on other grounds by, State v. Torres (Torres II) (2011): provides a framework for proving death and causation from (a) a sudden, unplanned disappearance inconsistent with the victim’s habits and (b) defendant conduct supporting inference of culpability.
• State v. Batson (1992): reiterates that intent/knowledge is commonly proven by circumstantial evidence and inferences from conduct.
• The sufficiency standard itself is drawn from State v. Kalaola (2010), with deference principles from State v. Taliferro (App. 1994), State v. Naeole (1980), and State v. Yabusaki (1977).

Miranda and Hawaiʻi’s “bright-line” custody doctrine. The decision is built around:

• State v. Ketchum (2001): sets the “bright-line rule” for when a person is “in custody” for article I, section 10 purposes, including (i) sustained and coercive questioning implying accusation, or (ii) arrival of the “point of arrest” through probable cause or unlawful de facto arrest.
• State v. Hewitt (2023): reaffirms Ketchum and identifies totality factors (place/time, length, nature of questions, police conduct).
• State v. Hoffman (2024): restates suppression requirement for statements obtained in custodial interrogation without Miranda.
• State v. Ah Loo (2000): distinguishes brief, investigatory questioning from sustained coercive interrogation requiring warnings.

Digital privacy, subpoenas, and the burden to prove an expectation of privacy. The court’s analysis interweaves state and federal sources:

• State v. Walton (2014): (i) confirms the proponent of suppression bears the burden; (ii) applies Hawaiʻi’s legitimate-expectation-of-privacy framework; and (iii) recognizes harmlessness can resolve even constitutional-search issues where evidence is cumulative.
• State v. Spillner (2007): cited via Walton for suppression standards and burden.
• State v. Bonnell (1993): supplies the two-part test (subjective expectation + objectively reasonable expectation).
• State v. Biggar (1986): illustrates how a defendant can show subjective expectation through conduct (closing a stall door).
• State v. Curtis (2017): confirms Hawaiʻi may provide greater privacy protections than federal law.
• Federal “no expectation” authorities cited include United States v. Perrine (10th Cir. 2008) and United States v. Forrester (9th Cir. 2008), and the court distinguishes Carpenter v. United States (2018) as involving comprehensive location tracking unlike a subscriber name/IP linkage.

Prosecutorial misconduct and closing argument boundaries. The court frames the inquiry through:

• State v. Hirata (2022): plain error review for unobjected prosecutorial misconduct; no practical difference from harmless-beyond-a-reasonable-doubt in this context.
• State v. Willis (2025) and State v. Udo (2019): prosecutors have wide latitude to argue evidence and reasonable inferences but must seek justice.
• State v. Conroy (2020): used as a contrast—impermissible argument involves significant departures from evidence or injection of personal experiences/office authority.
• The opinion references the ICA’s unpublished SDO in State v. Browder (2023) as part of the parties’ dispute, but ultimately treats the “we know” phrasing here as non-problematic given its tether to evidence.
• Additional latitude cases: State v. Pasene (2019) and State v. Mainaaupo (2008).

Unanimity and lesser-included-offense instructions. The decision rests on:

• State v. Arceo (1996) as interpreted by State v. Valentine (2000): a specific unanimity instruction is necessary only when the prosecution adduces proof of “two or more separate and distinct culpable acts” but charges only one offense.
• State v. Angei (2023): clarifies lesser-included instructions must be given only when there is a “rational basis” under HRS § 701-109(5).

Charging sufficiency after conviction and liberal construction. Key authorities:

• State v. Jardine (2022): charges must contain essential elements and relevant statutory definitions; reviewed de novo.
• State v. Motta (1983) and State v. Wells (1995): untimely (first-on-appeal) challenges trigger liberal construction.
• State v. Wheeler (2009): conviction stands unless prejudice is shown or the charge cannot reasonably be construed to charge a crime.
• State v. Aganon (2001): explains second-degree murder elements, including that “any voluntary act ... or omission may satisfy the conduct element.”

Pre-indictment delay. The governing framework comes from:

• State v. Higa (2003): balancing requires the defendant first show actual substantial prejudice; without it, the claim fails.
• State v. Martinez (2003) and State v. Keliiheleua (2004): standard of review and requirement that prejudice be definite, not speculative.
• State v. Levi (1984): rejects presumed prejudice from generalized “memory loss” arguments even over substantial delays.

Grand jury dismissal standards and hearsay practice.

• State v. Mendonca (1985), State v. Borge (2023), State v. Taylor (2011), and State v. Shaw (2021): collectively frame abuse-of-discretion review, “flagrant case” requirement for dismissal, and inference-in-favor-of-indictment review for sufficiency.
• State v. Murphy (1978) and State v. Layton (1972): hearsay is permitted; dismissal generally requires deliberate substitution of hearsay for better evidence to improve the indictment case.

“Victim impact” distinctions. The defense’s victim-impact framing was rejected by comparison to:

• State v. Riveira (2021) and State v. Lora (2020): at trial, after-effects/impact evidence is rarely relevant, but in this no-corpse context the victim’s routines and family ties were relevant to proving death via disappearance inconsistent with habits.

3.2. Legal Reasoning

(a) Sufficiency in a no-body murder. The court’s sufficiency holding follows a two-step inference chain endorsed by Torres I:

• Death inference: Monsalve’s sudden cessation of contact, abandonment of work, family, commitments, and financial activity—paired with disposal of her personal items—supported an inference of death rather than voluntary disappearance.
• Causation and state of mind inference: Brown’s status as last known person with Monsalve, contradictions (e.g., alleged son pickup denied by the son), post-disappearance behavior (e.g., selling furniture, “burner phone” request, computer wiping inquiry), and electronic activity tying her device/accounts to his IP address supported inference that he intentionally or knowingly caused death.

Importantly, the court reiterated the State need not prove the precise “how” of death to sustain a second-degree murder conviction where the evidence reasonably supports death and culpable causation.

(b) Miranda and custody under Hawaiʻi’s bright-line rule. Applying Ketchum as reaffirmed by Hewitt, the court emphasized:

• No probable cause to arrest had developed during the interview;
• The interview was relatively brief (about thirty minutes);
• Questioning was consistent with missing-person fact-finding rather than sustained, coercive accusatorial interrogation;
• Brown came voluntarily and left at the end.

The decision underscores that stationhouse questioning alone is not dispositive; custody turns on objective totality and the Ketchum “point of arrest/accusation” criteria.

(c) ISP subscriber name subpoena and Hawaiʻi privacy. The opinion’s most operationally significant privacy reasoning is burden-based:

• Federal law: Subscriber information (including name) is generally unprotected by the Fourth Amendment when provided to an ISP; the court relied on United States v. Perrine and United States v. Forrester, and treated Carpenter v. United States as a narrow location-tracking carveout.
• State law (article I, section 7): Even assuming Hawaiʻi can protect third-party-disclosed information more broadly (State v. Curtis), suppression still requires the defendant to prove a legitimate expectation of privacy using the Bonnell/Walton test.
• Critical failure: Brown presented no evidence (e.g., testimony, affidavit, ISP privacy policies) showing he actually believed his subscriber name/IP assignment link was private. Without that threshold showing, the court did not reach (or need to resolve) the objective-reasonableness prong.
• Backstop harmlessness: Even if a privacy interest existed, admission of the name was harmless because other evidence (including Brown’s own statements placing Monsalve at his apartment when the IP address was used) made the name-to-IP linkage non-outcome-determinative.

This approach effectively proceduralizes digital-privacy suppression litigation in Hawaiʻi: defendants must build an evidentiary record of subjective privacy expectations, not merely assert them in briefing.

(d) “We know” as argument, not vouching. The court treated “we know” as a rhetorical device tied to record evidence and reasonable inferences (e.g., IP logs, Brown’s admissions), distinguishing the improper arguments condemned in State v. Conroy. It reaffirmed “wide latitude” under State v. Udo and State v. Willis while warning against assertions of personal knowledge.

(e) No Arceo unanimity and no lesser-included instruction absent evidentiary predicates.

• Unanimity: Consistent with State v. Valentine, there was no evidence of “two or more separate and distinct culpable acts” presented as alternative bases for guilt; the State’s proof was a single circumstantial narrative of intentional/knowing causation.
• Lesser included: Under HRS § 701-109(5) and State v. Angei, the court required a rational evidentiary basis to acquit of murder but convict of reckless homicide; none existed in this record.

(f) Charging sufficiency without manner-of-death allegations. Applying the post-conviction liberal-construction regime (State v. Motta; State v. Wells; State v. Wheeler), the court held the indictment’s core allegations—time period, location, mental state, and result (“cause the death”)—adequately pleaded second-degree murder. Drawing on State v. Aganon, the court reiterated that the “conduct” element can be satisfied by “any voluntary act ... or omission,” and thus pleading the precise “how” was not required to “state an offense” in this no-corpse context.

(g) Pre-indictment delay and prejudice. Under State v. Higa, the threshold requirement is actual substantial prejudice, proven definitively rather than speculatively (State v. Keliiheleua). Brown’s generalized assertions about fading memory were insufficient, and the court credited the investigative realities of establishing probable cause in a no-body homicide.

3.3. Impact

• Digital-evidence suppression practice: The decision’s practical impact is procedural and strategic: a defendant seeking suppression under Hawaiʻi’s broader privacy doctrine must present evidence establishing a subjective expectation of privacy in the specific category of digital identifier sought (here, an ISP subscriber name linked to an IP address). Unsupported assertions are inadequate.
• Subpoena use for subscriber identifiers: By affirming admission of the subscriber name obtained via subpoena (and citing HRS § 803-47.6(d)(2)(D) and HRS § 28-2.5 in the background), the opinion reinforces the State’s ability—at least in this posture—to obtain basic subscriber identity information without a warrant, absent a developed Hawaiʻi constitutional privacy record.
• No-corpse prosecutions: The opinion strengthens Torres I’s analytic structure and confirms that death and intent/knowledge can be inferred from disappearance patterns and defendant conduct without proof of manner of death.
• Closing argument boundaries: The ruling signals that “we know” phrasing will not be treated as per se improper; courts will look to whether the phrase is tethered to evidence and inferences rather than personal belief or vouching.
• Instructional duties: The decision narrows the circumstances for sua sponte Arceo and lesser-included instructions in circumstantial homicide cases where alternative, discrete acts or lower-culpability theories are not supported by record evidence.

4. Complex Concepts Simplified

• No-corpse (no-body) murder: A homicide case where the victim’s body is not recovered. The State must still prove (1) the victim is dead and (2) the defendant caused the death with the required mental state—often through circumstantial evidence (patterns, conduct, digital traces).
• “Substantial evidence” on appeal: The appellate court does not re-try the case; it asks whether enough credible evidence exists that a reasonable factfinder could reach the verdict when viewed in the light most favorable to the prosecution (State v. Kalaola).
• Custody for Miranda in Hawaiʻi: Under State v. Ketchum, custody exists when questioning becomes sustained and coercive (implying accusation) or when the “point of arrest” arrives (probable cause or de facto arrest), even if no formal arrest occurs.
• Expectation of privacy (Hawaiʻi test): Under State v. Bonnell and State v. Walton, the defendant must prove (1) they actually expected privacy (subjective) and (2) society would view that expectation as reasonable (objective).
• Arceo unanimity instruction: A special instruction needed when jurors might convict based on different separate acts—e.g., some jurors think act A happened, others think act B happened—yet only one count is charged. Without proof of multiple distinct culpable acts, no special unanimity instruction is required (State v. Valentine).
• Lesser included offense instruction: A jury is instructed on a lesser crime (e.g., manslaughter) only when there is a “rational basis” in the evidence to acquit of the greater charge but convict of the lesser (HRS § 701-109(5); State v. Angei).

5. Conclusion

State v. Brown affirms a no-corpse second-degree murder conviction and clarifies several recurring issues in modern prosecutions. Most notably, it reinforces that suppression of basic ISP subscriber identity information under Hawaiʻi’s constitution requires an evidentiary showing of a subjective expectation of privacy, not mere argument. The court also reaffirms Hawaiʻi’s Ketchum custody framework for stationhouse interviews, rejects categorical attacks on common closing-argument phrasing when tied to evidence, and limits sua sponte unanimity and lesser-included instructions to cases where the evidentiary predicates are actually present. In the broader legal landscape, the opinion strengthens the operational viability of circumstantial and digital-trace proof in no-body homicide cases while emphasizing disciplined burdens of proof in constitutional suppression litigation.