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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
24-JUN-2020
08:14 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
ANTHONY G. BEAUDET-CLOSE,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 16-0368K)
JUNE 24, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
We held in State v. Mainaaupo, 117 Hawaii 235, 178
P.3d 1 (2008), that the foundational privilege against self-
incrimination, commonly referred to as the “right to remain
silent,” attaches during post-arrest police interrogation. We
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later expanded the scope of this privilege to pre-arrest
detainment. State v. Tsujimura, 140 Hawaii 299, 400 P.3d 500
(2017). This case explores if a suspect’s refusal to reenact
the incident for which the suspect is being interviewed invokes
the right to remain silent and if the prosecution’s reference to
the suspect’s refusal at trial violates that right.
In 2016, Petitioner/Defendant-Appellant Anthony G.
Beaudet-Close (Beaudet-Close) was involved in an altercation
with Luke Ault (Ault) during which Beaudet-Close allegedly
punched and kicked Ault multiple times. As a result of the
altercation, Ault sustained permanent and life-threatening
injuries. Beaudet-Close was charged with Attempted Murder in
the Second Degree and Assault in the First Degree.
At trial, the State played for the jury a video of a
detective interviewing Beaudet-Close (police interview video).
The police interview video concluded with Beaudet-Close
declining the detective’s request that Beaudet-Close reenact the
altercation.
Beaudet-Close filed a motion for a mistrial after the
jury viewed the police interview video, arguing that it was an
impermissible comment on his invocation of his right to remain
silent. The circuit court denied Beaudet-Close’s motion and
trial continued.
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The jury convicted Beaudet-Close of Attempted Murder
in the Second Degree and the circuit court sentenced Beaudet-
Close to life in prison. The ICA affirmed the Judgment of
Conviction and Sentence on appeal.
In his application for writ of certiorari, Beaudet-
Close argues that he invoked his right to remain silent when he
refused to participate in a reenactment and that the
prosecutor’s decision to play a video of that refusal before the
jury was an improper comment on his invocation of that right.
We agree. We hold that Beaudet-Close invoked his
right to remain silent when he declined to participate in a
reenactment of the encounter and that his right to do so was
infringed when the prosecution played the police interview video
before the jury at trial.
I. BACKGROUND
On November 9, 2016, the State of Hawaii (the State)
charged Beaudet-Close by complaint with Attempted Murder in the
Second Degree and Assault in the First Degree. The charge arose
from an altercation that took place between Beaudet-Close and
Ault on October 28, 2016 in Kailua Kona on the island of Hawaii.
Ault was seriously injured during the altercation.
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A. Trial
Beaudet-Close’s jury trial began on July 11, 2017.1
During opening statements, the State presented its theory that
on the night of the incident, Beaudet-Close hit Ault in the face
so hard that he put him into a coma. Beaudet-Close attacked
Ault with so much force, the State argued, because he intended
to kill Ault. The State asserted that multiple witnesses who
saw the attack would testify that Beaudet-Close kicked and
punched Ault, but that Ault never struck Beaudet-Close back or
tried to defend himself. The State explained that Ault, who
remained in a coma for weeks after the incident, suffered
multiple facial fractures, a subdural hematoma, and a traumatic
brain injury.
In Beaudet-Close’s opening statements, his counsel
explained that Beaudet-Close was walking through a dangerous
area where drugs were frequently sold and consumed when Ault
approached him with a knife and said “[w]e got shit to settle.”
Beaudet-Close argued that he acted in self-defense and did not
intend to kill Ault.
1. Detective Walter Ah Mow’s Testimony
The State called retired Hawaii Police Department
(HPD) Detective Walter Ah Mow (Detective Ah Mow). Detective
1 The Honorable Melvin H. Fujino presided.
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Ah Mow worked for the Criminal Investigation Section in Kona in
2016 and was assigned to the “assault investigation” that is the
subject of this appeal. He testified that Beaudet-Close became
a person of interest after a witness identified Beaudet-Close as
the assailant. Detective Ah Mow stated that on November 7,
2016, he interviewed Beaudet-Close, who had already turned
himself in for the assault and was confined to a cellblock.
Detective Ah Mow video recorded the interview.
According to Detective Ah Mow, Beaudet-Close told him
that on the night of the incident, Ault had brandished a knife.
Detective Ah Mow testified that Beaudet-Close’s statement did
not make sense and that he was never able to corroborate
Beaudet-Close’s assertion that Ault had brandished a knife.
Detective Ah Mow stated, “[t]here was no knife involved.”
Detective Ah Mow explained that he advised Beaudet-
Close of his “rights regarding the making or not making of a
statement . . . [and] his rights regarding an attorney” using
the standard Hawaii Police Department Advice of Rights form
(Advice of Rights Form). Detective Ah Mow read the Advice of
Rights Form to Beaudet-Close, who initialed it in various
places. Beaudet-Close’s initials and verbal statements
indicated that he understood the Advice of Rights Form, that he
waived his right to an attorney, and that he was willing to
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answer questions and to make a statement. The State moved a
copy of the Advice of Rights Form into evidence.
The State then moved to place Exhibit 13A, a copy of
the police interview video, into evidence. Beaudet-Close
objected as to foundation and on Hawaiʿi Rules of Evidence (HRE)
Rule 4032 grounds. The circuit court overruled those objections
in the following exchange:
[BEAUDET-CLOSE’S COUNSEL]: Uh, just as to foundation,
Your Honor, I don’t know – I haven’t reviewed that
disc but otherwise that’s my objection.
THE COURT: Court will receive 13A.
. . . .
[BEAUDET-CLOSE’S COUNSEL]: And if I could, Your
Honor, I also object to 13A on 403 prior to
publication.
THE COURT: Overruled.
The State published the video to the jury.
2. The Police Interview Video
The police interview video depicts Detective Ah Mow
interviewing Beaudet-Close at the Kona Police Station on
November 7, 2016. First, Detective Ah Mow confirmed with
Beaudet-Close that Beaudet-Close had turned himself in and had
2 HRE Rule 403 provides,
Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time. Although relevant, evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
or time, or needless presentation of cumulative evidence.
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reviewed the Advice of Rights Form with the detective. Beaudet-
Close verbally waived his right to remain silent and his right
to the presence of an attorney, and signed the Advice of Rights
Form, indicating that he waived those rights. Detective Ah Mow
informed Beaudet-Close that if he chose to answer questions, he
had the right to stop answering questions at any time. Beaudet-
Close stated that he was willing to answer Detective Ah Mow’s
questions.
Next, Detective Ah Mow showed Beaudet-Close a photo
lineup. Beaudet-Close was unable to identify Ault. Beaudet-
Close stated that on the night of the incident he was walking
when a man said his name, said “there you are, we got some shit
to settle,” identified himself as Ault, and lunged at Beaudet-
Close with a knife. Beaudet-Close explained that he kicked and
punched Ault and succeeded in kicking the knife out of Ault’s
hand. Beaudet-Close asserted that he did not use any weapons,
but that he punched Ault once and kicked Ault seven to eight
times, including two or three kicks to the head. Beaudet-Close
stated that he then called the police.
Beaudet-Close stated that he had never met Ault
before, but that he had heard Ault was “out to look for him”
because of Beaudet-Close’s ex-girlfriend.
After Beaudet-Close explained the altercation and the
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events surrounding it, Detective Ah Mow requested that Beaudet-
Close participate in a video reconstruction of the altercation
at the scene “because I want your side of the story.” Detective
Ah Mow explained that Beaudet-Close did not have to participate
if he did not want to participate. After Beaudet-Close stated
that he was scared, Detective Ah Mow again told him that he did
not have to participate in the reenactment. Beaudet-Close
continued that he was afraid for his life and for his family
because he thought Ault’s friends might try to seek revenge.
Detective Ah Mow stated, “[s]o how do you feel about
doing a video reconstruction. Like I say, we don’t have to.”
Beaudet-Close replied, “right now I’m not comfortable with
that.”
Beaudet-Close continued that if he had known Ault
would be at the scene of the altercation that night, he would
have parked somewhere else and walked a different way.
Detective Ah Mow told Beaudet-Close that he had no further
questions and told Beaudet-Close that since the authorities were
not sure about the extent of Ault’s injuries, the investigation
was still ongoing. Beaudet-Close again expressed that he feared
for his family. Detective Ah Mow ended the interview.
3. Motion for Mistrial
On July 13, 2017, the day the jury saw the video of
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Beaudet-Close’s interview, Beaudet-Close filed a Motion for
Mistrial. Beaudet-Close argued that the admission of his
“refusal to provide statements and cooperate in a ‘scene
reconstruction’” in the police interview video was “plainly
impermissible.” Beaudet-Close asserted that the only reason the
prosecutor would have played the portion of the video where
Beaudet-Close refuses to participate in the scene reconstruction
was to imply Beaudet-Close’s guilt. Beaudet-Close concluded
that when “the State knowingly played for the jury [footage of
Beaudet-Close] choosing to invoke his right to remain silent,
refuse [to answer] future statements and decline to participate
in furthering the Hawaii Police Department’s investigation,” the
State “violated [Beaudet-Close’s] rights against compelled self-
incrimination guaranteed by article I, section 10 of the Hawaii
Constitution.”
At trial the following morning, the circuit court
denied Beaudet-Close’s motion. The circuit court observed that
Beaudet-Close did not object to the video at the motion for
voluntariness hearing. The circuit court then stated:
Further, the court would find as far as State’s
Exhibit 13A, which was received yesterday, that the
defendant had already waived his rights, gave his
story and towards the end of the State’s Exhibit 13A,
the Detective is asking if he would like to do a
reconstruction and go physically show so he can tell
his side of the story, meaning what he just told the
Detective. So the court would deny the defendant’s
motion for mistrial
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4. Beaudet-Close’s Testimony
Beaudet-Close testified last. Beaudet-Close testified
that on the night of the incident, he went to the Aloha Gas
Station near the scene of the incident at around 9:00 p.m.
Beaudet-Close began to walk down a road near the gas station
when someone said “[t]here you are. We got some shit to
settle.” Beaudet-Close stated that the person identified
himself as “Luke” and lunged at Beaudet-Close with a knife that
was no more than three inches long. Beaudet-Close testified
that after Ault fell to the ground, “I kicked him in his stomach
maybe two times and I noticed the knife in his hand so I kicked
it. And it was still in his hand, I kicked it again. And from
there I kicked him in his face and he stopped moving right
there.” Beaudet-Close stated that he feared he was still in
danger, so he started to yell. Beaudet-Close explained that he
then called 911. Beaudet-Close testified that he left when he
heard the police arrive because he was still scared. Beaudet-
Close stated that he did not intend to kill Ault.
B. Verdict and Sentencing
On July 19, 2017, the jury found Beaudet-Close guilty
of Attempted Murder in the Second Degree. On September 13,
2017, the circuit court sentenced Beaudet-Close to life in
prison and ordered that he pay $3,041.66 in restitution.
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C. Appeal
The ICA affirmed the circuit court’s Judgment of
Conviction and Sentence.
With respect to the police interview video, the ICA
held that Beaudet-Close’s statements declining to participate in
the reconstruction did not invoke his right to remain silent.
The ICA distinguished the facts of this case from those of State
v. Rodrigues, 113 Hawaii 41, 147 P.3d 825 (2006), by observing
that in this case, Beaudet-Close “was not refusing to speak
further on the matter.” The ICA continued, “rather than remain
silent, [Beaudet-Close] continued to speak and explain his fear
of returning back to the scene and his ongoing discomfort with
the situation.” Therefore, the ICA held, Beaudet-Close did not
invoke his right to remain silent and the circuit court did not
err in admitting the video. The ICA affirmed the circuit
court’s Judgment of Conviction and Sentence and entered its
Judgment on Appeal on July 9, 2019.
Beaudet-Close filed a timely Application for Writ of
Certiorari on July 11, 2019. In his application, Beaudet-Close
asserts that, contrary to the ICA’s conclusion that Beaudet-
Close did not assert his right to remain silent, the Ninth
Circuit’s holding in Hurd v. Terhune, 619 F.3d 1080 (9th Cir.
2010) makes clear that when police request that a suspect
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reenact an incident, the suspect’s refusal is an unambiguous
invocation of the right to remain silent. Beaudet-Close
continues that the facts of this case are even worse than those
of Hurd because in Hurd the prosecutor merely made references to
the defendant’s refusal to reenact the incident, but here, the
prosecutor played a video of Beaudet-Close refusing to reenact
the altercation before the jury. Therefore, Beaudet-Close
concludes, “[t]his visual is equally, if not more, prejudicial
to [Beaudet-Close’s] constitutional right to remain silent.”
II. STANDARD OF REVIEW
A. Constitutional Issues
“Issues of constitutional interpretation present
questions of law that are reviewed de novo.” Sierra Club v.
Dep’t of Transp. of State of Hawaii, 120 Hawaii 181, 196, 202
P.3d 1226, 1241 (2009).
III. DISCUSSION
We hold that Beaudet-Close unambiguously invoked his
right to remain silent3 when he declined Detective Ah Mow’s
3 Both the United States Constitution and the Hawaii Constitution protect
a criminal defendant’s privilege against self-incrimination, or “right to
remain silent.” See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
The Fifth Amendment to the United States Constitution provides: “No
person shall . . . be compelled in any criminal case to be a witness against
himself[.]” U.S. Const. amend. V.
Likewise, article 1, section 10 of the Hawaii Constitution states, “nor
shall any person be compelled in any criminal case to be a witness against
oneself.” Haw. Const. art. 1 § 10.
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request that Beaudet-Close participate in a reenactment of the
incident. Moreover, consistent with this court’s holding in
State v. Domingo, 69 Haw. 68, 733 P.2d 690 (1987), Beaudet-
Close’s privilege against self-incrimination was infringed when,
over his objection, the circuit court permitted the jury to view
a video of Beaudet-Close invoking that privilege.
A. Beaudet-Close invoked his right to remain silent when
he refused to participate in the reenactment.
Beaudet-Close argues that the ICA erred in concluding
that Beaudet-Close’s decision not to participate in the
reenactment did not constitute an invocation of his right to
remain silent.4 This assessment is correct as a matter of
federal law. See Hurd, 619 F.3d 1080.
In Hurd, the United States Court of Appeals for the
4 The ICA held that, under Rodrigues, 113 Hawaii at 49, 147 P.3d at 833,
Beaudet-Close did not invoke his right to remain silent because he was not
“refusing to speak further on the matter.” However, the ICA’s application of
Rodrigues was incorrect. In holding that a defendant’s refusal to repeat his
statement on tape was an invocation of his right to remain silent, the
Rodrigues court explained that
when the questioning of a suspect is otherwise complete,
and the police request that the suspect reiterate his or
her statement in order to memorialize it electronically,
the suspect’s refusal to do so amounts to an invocation of
the right to remain silent precisely because the suspect is
refusing to speak further on the matter.
Id.
Here, Detective Ah Mow ceased questioning after Beaudet-Close stated
that he did not want to go back over his statement by reenacting it.
Beaudet-Close continued to speak, but only about his fear for himself and his
family. Therefore, under the Rodrigues analysis, Beaudet-Close invoked his
right to remain silent.
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Ninth Circuit (Ninth Circuit) analyzed the prosecution’s use at
trial of defendant Hurd’s refusal to participate in a
reenactment of how he shot his wife. 619 F.3d at 1082. There,
police took Hurd into custody after his wife was killed in a
shooting at his home. Id. at 1083. Hurd expressed his
willingness to speak to police without an attorney, to answer
detectives’ questions, and to give his side of what had
happened. Id. Hurd explained that he had offered to lend his
gun to his estranged wife, but that it had accidentally
discharged while he attempted to load it for her. Id. When
detectives asked Hurd to reenact how the shooting had occurred,
Hurd refused. Id. at 1084. The Ninth Circuit held that
Hurd unambiguously invoked his right to silence when
the officers requested that he reenact the shooting
[and] Hurd responded to the officers’ requests by
saying, among other things, “I don’t want to do
that,” “No,” “I can’t,” and “I don’t want to act it
out because that – it’s not that clear.”
Id. at 1088-89 (emphasis added). Because “a suspect may invoke
his right to silence at any time during questioning and that []
silence cannot be used against him at trial,” id. at 1087, the
Ninth Circuit held that the prosecutor’s reference to Hurd’s
invocation of his right to silence was not harmless. Id. at
1090. The Ninth Circuit therefore vacated Hurd’s conviction.
Id. at 1091.
Applying the Hurd analysis to this case, Beaudet-Close
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clearly invoked his right to remain silent when he refused to
participate in a reenactment of Ault’s beating. Here, Beaudet-
Close turned himself in to police as the perpetrator of Ault’s
beating. In custody, Beaudet-Close waived his right to an
attorney and agreed to answer questions and provide his side of
the story. After Beaudet-Close provided his statement and
answered Detective Ah Mow’s questions, Detective Ah Mow asked
Beaudet-Close if he would return to the scene of the incident to
reenact the events that had transpired. Beaudet-Close stated
that he did not feel comfortable doing so and explained that he
was scared. Detective Ah Mow again asked Beaudet-Close if he
would reenact the events and Beaudet-Close again said that he
would not, because he was scared. At that point, Detective Ah
Mow ended the interview.5 Pursuant to the Hurd analysis,
Beaudet-Close invoked his right to silence when he refused to
reenact the incident. See Hurd, 619 F.3d at 1088-89.
Because we are persuaded by the Ninth Circuit’s
interpretation in Hurd, we hold that a suspect’s refusal to
reenact the incident for which the suspect is in custody is an
unambiguous invocation of the suspect’s right to remain silent.
Beaudet-Close invoked his right to remain silent when he
5 That Detective Ah Mow ceased questioning when Beaudet-Close declined to
participate in the reenactment might indicate that Detective Ah Mow
considered that refusal an invocation of Beaudet-Close’s right to remain
silent.
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repeatedly indicated to Detective Ah Mow that he did not wish to
reenact his altercation with Ault.
B. Beaudet-Close’s right to remain silent was infringed
when video footage of him invoking that right was
shown, over his objection, to the jury.
Beaudet-Close argues that his invocation of his right
to remain silent was impermissibly used against him at trial
when the prosecutor played before the jury a video of him
invoking that right.
Article 1, section 10 of the Hawaii Constitution,
which states “nor shall any person be compelled in any criminal
case to be a witness against oneself[,]” provides for a criminal
defendant’s right to remain silent. Haw. Const. art 1, § 10.
We have held that “[a] concomitant of the right to remain silent
is the prohibition on the prosecution from commenting on a
person’s exercise of that right.” Tsujimura, 140 Hawaii at 314,
400 P.3d at 515. As such, “the prosecution may not comment on a
defendant’s failure to testify.” State v. Wakisaka, 102 Hawaii
504, 514, 78 P.3d 317, 327 (2003).
In State v. Domingo, this court analyzed when the
introduction of evidence showing that a defendant invoked
certain constitutional rights infringes upon those rights. 69
Haw. at 69, 733 P.2d at 691. There, we held that “[t]he
introduction, over objection, of evidence that as [sic]
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defendant had invoked his rights under Sections 10 and 14 of
Article 1 of the Constitution of the State of Hawaii, where
there was no issue as to whether the defendant had done so,
would infringe on those rights.” Id. (citing Doyle v. Ohio, 426
U.S. 610 (1976)). We went on to explain that the introduction
of this evidence would infringe the defendant’s right to remain
silent because a jury would likely infer the defendant’s guilt
from his invocation of his right. Id. at 70, 733 P.2d at 691-
92.
In Domingo, the defendant signed an Advice of Rights
Form, which was introduced as evidence. Id. at 69, 733 P.2d at
691. The sections where the defendant had invoked his
constitutional rights were redacted. Id. Nevertheless, this
court held that given the context of the rest of the evidence,
the jury could and probably did infer that the defendant had
invoked his constitutional rights. Id. at 70, 733 P.2d at 691-
92. In other words, in a situation where the prosecution
publishes evidence that a defendant has invoked the right to
remain silent, the controlling inquiry is whether or not the
jury would infer from that evidence that the defendant invoked
that right. If the jury can make such an inference, the
prosecutor has impermissibly used silence against the defendant
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at trial.6
The introduction of the police interview video
infringed Beaudet-Close’s right to remain silent under the
Domingo test. The jury was shown the portion of the video in
which Beaudet-Close refused to participate in the reenactment.
The jury was not told that Beaudet-Close’s refusal to reenact
the incident constituted an invocation of his right to remain
silent. However, like in Domingo, it is likely that the jury
inferred from seeing this video that Beaudet-Close invoked this
right, because up until the moment Beaudet-Close declined to
cooperate with the reenactment, Beaudet-Close had answered all
of Detective Ah Mow’s questions. Even if the jury did not infer
that Beaudet-Close officially invoked his right to remain
silent, the jury could have nevertheless made the inference,
based on Beaudet-Close’s refusal to cooperate with Detective Ah
Mow in this way, that Beaudet-Close was hiding something.
6 The Domingo court held that the introduction of evidence that a
defendant has invoked his right to remain silent infringes that right. 69
Haw. at 69, 733 P.2d at 691. However, the Domingo court proceeded to analyze
the introduction of that evidence under the HRE Rule 403 probative value
versus prejudicial effect balancing test. Id. at 70, 733 P.2d at 691-92.
The court stated that if the jury can infer that the defendant invoked his
constitutional rights, the likelihood that the jury will make an
impermissible inference therefrom far outweighs the probative value of the
evidence. Id. The Domingo court therefore held that the introduction of the
evidence was an abuse of discretion under HRE Rule 403. Id.
It appears that after implying that the defendant’s constitutional
right was infringed, the Domingo court did not need to address the HRE Rule
403 test. However, either inquiry results in the same conclusion - that the
introduction of the subject evidence at trial necessitated vacating the
defendant’s conviction.
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Beaudet-Close’s right to remain silent was infringed because his
decision not to testify against himself by reenacting the
incident was used against him at trial.
IV. CONCLUSION
Beaudet-Close’s right to remain silent was infringed
when video footage of his invocation of that right was published
to the jury over his objection. The jury likely inferred from
the video that Beaudet-Close invoked his right to remain silent
when he refused to participate in a reenactment of the incident
at the close of his interview. Therefore, pursuant to the
standard we set forth in Domingo, Beaudet-Close’s invocation of
his right to remain silent was used against him at trial in
violation of article 1, section 10 of the Hawaii Constitution.
We vacate the ICA’s July 9, 2019, Judgment on Appeal,
which affirmed the circuit court’s September 13, 2017, Judgment
of Conviction and Sentence and remand for a new trial.
Victor M. Cox /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen L. Frye
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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