A prosecutor’s improper closing argument that "overkill" is necessary for a manslaughter verdict warrants a new trial for a man convicted of murder for stabbing his cousin, the Intermediate Court of Appeals ruled yesterday.

The appeals court held that the deputy prosecutor’s "misconduct" in misstating the law by making "overkill" a requirement might have influenced the jury in rejecting the lesser manslaughter verdict.

Tyler Condon, 26, was found guilty of second-degree murder in the stabbing of Jake Ira Hale on July 4, 2007, at an Ewa townhouse.

Condon did not dispute inflicting the fatal wounds, but contended he acted in self-defense and under extreme mental or emotional distress after his cousin tried to rape him.

The jury rejected an acquittal based on self-defense and the lesser manslaughter conviction, which would have acknowledged the distress.

The appeals court ordered the case back to Circuit Court for a new trial.

In the unanimous ruling, the three-judge appeals court panel focused on the argument by Deputy Prosecutor Franklin Pacarro Jr., an announced candidate for city prosecutor this fall.

"When you have a case where a person is extremely emotionally disturbed, you have what is called overkill," Pacarro told the jurors. "They just keep stabbing and stabbing and stabbing. The person is dead and they keep stabbing because they lost it."

That didn’t occur in Condon’s case, Pacarro said, in effect ruling out manslaughter.

The appeals court said Pacarro did not present any testimony to support the argument that "overkill" was a requirement for manslaughter.

Jim Fulton, spokesman for the city prosecutor’s office, said he had no comment and can’t say whether they will ask the Hawaii Supreme Court to review yesterday’s ruling.

Pacarro could not be reached for comment.

According to the defense and prosecution, the two cousins came to Hawaii at different times and had been here for only a few months before the stabbing.

Hale, 28, was here to help raise another cousin’s children at Schofield Barracks. He was house-sitting at the Palm Villas II townhouse at the time of the stabbing.

During the trial, Condon testified he drove Hale to the townhouse in the early morning, fell asleep and awoke to find his cousin trying to molest him. They struggled, Condon said, and his cousin put him in a headlock. Condon testified he then started swinging a knife.

Pacarro argued Condon attacked Hale as he was lying in bed.

Hale suffered five major wounds, including two that were fatal, to his torso and bled to death, according to trial testimony.

The decision sets aside Condon’s second-degree murder conviction and his sentence of life in prison with the possibility of parole. Manslaughter carries a maximum sentence of 20 years in prison.

The ruling was by appeals judges Daniel Foley, Alexa Fujise and Katherine Leonard.