State v. Mattson

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IN THE SUPREME COURT OF THE STATE OF HAWAfI

~-- 000 ~--

STATE oF HAWA:‘I, Respondent/Plainciff-Appellee,

vs.
JOSEPH MATTSON, III, Petitioner/Defendant-Appellant.

y |*'*J

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§§

No. 29170 §§

V §

CERTIORARI TO THE INTERMEDIATE COURT OF APPht S ;§
(CR. NO. 07-l~l984) " ::

MARCH 18, 2010 3

MOON, C.J., NAKAYAMA, and RECKTENWALD, JJ.; ACOBA, J.,
DISSENTING, WITH WHOM DUFFY, J., JOINS

OPINION OF THE COURT BY MOON, C.J.

On October l4, 2009, this court accepted a timely

application for a writ of certiorari, filed on September 9, 2009,

by petitioner/defendant-appellant Joseph Mattson, III, seeking

review of the Intermediate Court of Appeals' (ICA) June l2, 2009

judgment on appeal, entered pursuant to its May 2l, 2009, summary
disposition order (SDO).

Therein, the ICA affirmed the Circuit

Court of the First Circuit’sl April 22, 2008 judgment, convicting

Mattson of and sentencing him for one count of terroristic

threatening in the first degree, in violation of HRS §§ 707~7l5

1 The Honorable Randal K.O. Lee presided.

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(l993)2 and 707-7l6(l)(e) (Supp. 2008).3 Oral argument was held
on December 3, 2009.

Briefly stated, Mattson was arrested and charged based
on an incident that occurred between Mattson and his son, Joey
Hayashi, on the night of October l3, 2007. During the three-day
jury trial, the witnesses testified to conflicting versions of
the events that occurred on the night in guestion, including
Mattson, who testified on his own behalf. During its closing
argument, respondent/plaintiff-appellant State of Hawaid.(the
prosecution) commented on the fact that Mattson had a chance to
sit through all of the evidence presented at trial prior to
testifying and argued that Mattson knew he had to “make his story
gibe [sic]” with the evidence. Mattson was convicted and
subsequently appealed, arguing, in;§; alia, that the
prosecution's comments during its closing argument violated his
federal and state constitutional rights to be present at trial
and to testify on his own behalf. The ICA held that the
prosecutor's comments were not improper under the federal and

state constitutions and affirmed Mattson's conviction.

2 HRS § 707-715 provides in relevant part that:

A person commits the offense of terroristic
threatening if the person threatens, by word or conduct, to
cause bodily injury to another person or serious damage to
property of another or to commit a felony:
(l) With the intent to terrorize, or in reckless disregard
of the risk of terrorizing, another person[.]

3 HRS § 707~7l6(l)(e) provides that “[a] person commits the offense of

terroristic threatening in the first degree if the person commits terroristic
threatening . . . [w]ith the use of a dangerous instrument.”

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On application, Mattson contends that the ICA erred in
holding that the prosecutor's remarks were not improper under the
HawaiU.Constitution. Mattson maintains that such remarks
constituted a direct and impermissible attack on his
constitutional right to be present at trial and to testify on his
own behalf guaranteed by the confrontation clause of the HawaiU_
Constitution. Mattson further contends that the ICA erred in
concluding that the trial court did not commit plain error when
it failed to instruct the jury that Mattson “had a constitutional
right to be present throughout the trial and [that] the jury must
not draw any unfavorable inference regarding Mattson’s
credibility simply on the basis of his presence at trial.” Based
on the discussion below, we adopt the reasoning of the dissent in
Portuondo v. Agard, 529 U.S. 61 (2000), and hold that it would be
improper, under article I, section l4 of the HawaFi Constitution
for a prosecutor to make generic accusations during closing
argument that a defendant has tailored his or her testimony based
solely on the defendant's exercise of his or her constitutional
right to be present at trial. Accordingly, we also hold that,
inasmuch as the prosecutor's closing argument in the instant case
did not constitute a “generic accusation” of tailoring based
solely on Mattson's presence at trial, the prosecutor's comments
were not improper under the HawaFi Constitution. Conseguently,
we affirm the ICA's judgment on appeal that, in turn, affirmed

the trial court's judgment of conviction and sentence.

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l . BACKGROUND

A. Trial Court Proceedings
On October 24, 2007, Mattson was charged ~~ via
complaint ~~ with one count of terroristic threatening in the

first degree and one count of abuse of family or household
members, in violation of HRS § 709-906(l) and (5) (Supp. 2008),
arising out of an incident that occurred between Mattson and his
adult-son, Hayashi, on the night of October l3, 2007. A jury
trial commenced on January 9j 2008 and lasted three days, until
January ll, 2008. The following evidence was adduced at trial.
1. Prosecution's Case in Chief

a. testiomonV of HaVashi

Hayashi testified that, around the time of the
incident, he had been staying at Mattson's apartment in Wahiawa
for about two weeks in order to do a short-term construction job
in nearby Haleiwa. Hayashi indicated that, during that time, he
was borrowing Mattson's cell phone because he had left his own
cell phone at his house in Waianae.

Hayashi stated that, on October l3, 2007, he got off
work, went back to Mattson's apartment, and consumed at least two
vodka and soda cocktails. When Mattson came home, he and Hayashi
watched television while Hayashi waited for his friend, “Josh,”
to pick him up. Hayashi indicated that Mattson’s roommate,
valerie Kumia, was also at the apartment and that, by 9:00 or

9:30 p.m., he, Mattson, and Kumia had all “had a drink or two.”

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Hayashi explained that, at some point during the
evening, Mattson's cell phone rang, but the caller hung up when
Mattson answered. The caller identification (ID) on Mattson's
cell phone indicated the call was from Hayashi's friend, Josh.
Because Mattson apparently heard the sound of a female talking
when he answered the phone, Mattson assumed that Josh had a girl
with him. At that point, Mattson started yelling and swearing at
Hayashi, saying “vulgar” things about his friend, apparently
because he believed Josh had hung up on him. Hayashi suspected
that it was his girlfriend who had called and that Josh's number
appeared because they had called at the same time, Hayashi then
grabbed the phone from Mattson and tried to call Josh to
determine whether he had called and hung up, but Mattson took the
phone away from Hayashi. Hayashi tried to take the phone back
when a “scuffle” ensured. Hayashi put Mattson in a headlock.
Mattson then screamed for Kumia to come and help him. Kumia came
into the room, yelled at Hayashi to let go of Mattson, and
Hayashi complied.

According to Hayashi, Mattson then got up, ran to a
table behind Hayashi, and grabbed a knife. Mattson opened the
knife, came toward Hayashi, and “started slashing it” at him. As
Hayashi started backing away from Mattson, he tripped and fell
over something on the floor. Mattson swung the knife at Hayashi
and missed, stabbing some cardboard behind Hayashi. Mattson

continued to swing the knife in front of him and toward Hayashi's

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legs, coming within a few inches of Hayashi’s body. Hayashi
testified that, while Mattson was wielding the knife, he swore
and said things like, “You tried to kill me, and I'm going to
kill you now.” Hayashi tried to defend himself and told Mattson
to drop the knife and “fight him like a man.” At one point,
Hayashi grabbed Mattson's arm that was holding the knife, and
Mattson punched Hayashi in the face with his free hand.

At that point, Mattson's cell phone rang again, and the
caller ID indicated that it was Hayashi's girlfriend. Mattson
threw the phone at Hayashi, who answered it, but Mattson
continued to stand over him, swearing and saying threatening
things about Josh. Just then, the headlights of a vehicle
appeared through the window. Mattson stepped away from Hayashi
and walked toward the door. Hayashi got up and tried to stop
him, believing it was Josh who was outside, but Mattson swung the
knife at him again, so Hayashi backed off. Mattson then walked
outside. Hayashi looked out the window, noticed that it was not
Josh's car, and closed and locked the front door while Mattson
was still outside,

Hayashi then ran to Kumia and told her to call the
police and lock the back door. Hayashi went into Kumia’s room
and saw Mattson reaching through an open window with the knife in
his hand. According to Hayashi, Mattson had cut the window
screen and was attempting to pull out the louvers of the jalousie

windows so he could get into the apartment. Kumia came into the

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room and tried to close the window, but Mattson slashed the knife
at her. Hayashi tried to help Kumia, but Mattson continued to
slash the knife at both of them.

Hayashi went to the living room and grabbed a gun that
he knew was not loaded. He testified that he did not load the 1
gun because he was only trying to scare Mattson and did not
intend to hurt or injure him. He also picked up a hatchet before
going back to Kumia's room. Once near the open window, Hayashi
pointed the gun at Mattson and told him to get away from the
window, but Mattson just laughed at Hayashi, telling him he was
going to get arrested for using a gun; Hayashi put the gun down
and walked to the window to help Kumia close it, but Mattson
continued to swing his knife at them. Hayashi then took the
hatchet and started hitting Mattson/s hand with the back of the
hatchet. After being hit by the hatchet, Mattson pounded on the
window, demanding to be let in. Hayashi ran to the living room,
and, at that point, the police arrived and placed Mattson under
arrest.

On cross-eXamination, Hayashi admitted that he spoke to
Honolulu Police Department (HPD) officers Ashley Gormley and
Theodore Merrill, but did not tell them that he had brandished a
gun. Hayashi additionally testified that, in a telephone
interview with HPD Detective Thomas Smith, he told Detective
Smith about the argument with Mattson, the knife, and Mattson’sa

threatening remarks, but did not mention his use of the gun.

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Hayashi admitted that he did not mention that a gun was involved
until he received a second phone call from Detective Smith,
specifically asking him if he had pointed a gun at Mattson,
Hayashi also admitted on cross-examination that, on the night in
question, he was involved in a heated argument with Mattson about
the cell phone and that he had used “vulgar” and “hurtful” words
toward Mattson. Further, although he initially testified that
Mattson did not ask him to leave at any point that evening, he
later admitted that Mattson, prior to using the knife, had asked
him to leave and that he had refused.

b. Kumia”s testimony

Kumia testified that she lived in a one-bedroom
apartment with Mattson and that, in October 2007, Hayashi stayed
with them for about two weeks. According to Kumia; at around
3:l5 p.m. on October l3, 2007, she came into the living room of
the apartment and observed Hayashi to be intoxicated, stating
that his speech was slurred and he was unsteady on his feet. She
also indicated that she did not see Mattson have anything to
drink that day.

Kumia testified that, on the night in question, she was
outside on the porch smoking a cigarette while Mattson and
Hayashi watched television in the living room. Kumia heard
Mattson call her name, but she ignored it, She heard Mattson
call her name a second time and, because he sounded desperate,

she went running into the living room. Once there, she saw

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Hayashi bent over Mattson, choking him. She started yelling at
Hayashi to get off of Mattson. Eventually, Hayashi freed
Mattson; however, it took a few seconds before Mattson could move
from his bent over position. Upon standing, Mattson walked to a
table in the living room and grabbed a pocket knife. He then
turned and walked toward Hayashi. Kumia testified that Mattson
was holding the knife at his side and that “[i]t wasn’t open.”
However, upon further guestioning, she stated, “I did not see it
open,” but admitted that it could have been open. As Mattson
continued to walk toward Hayashi, Kumia observed Hayashi back
away from him and fall into the corner of the living room. After
Hayashi fell, Mattson continued to stand over him. Kumia
observed Hayashi try to get up and yell, “Dad, don’t cut me.”
Kumia testified that, while she was in the room, she did not see
Mattson swing the knife at Hayashi.

Kumia stated that, at that point, she left the room and
went into her bedroom to call 911 because she wanted to “diffuse
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the situation.” While in her bedroom, she heard loud yelling

4 The 911 tape, which was admitted into evidence, was played for the
jury at trial, but was not simultaneously transcribed into the record.
Although a written transcript of the call is also not contained in the record,
our review of the audio tape reveals that the following conversation
transpired between the 911 operator and Kumia:

911 OPERATOR: Police Emergency. Hello this is
Police.

KUMIA: 1 need a police officer, 231C Lehua Street in
Wahiawa now.

911 OPERATOR: What's going on?

KUMIA: Um, my roommate pulling {sic] a knife on his
son.

911 OPERATOR: Where are they at?

(continued...)

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from both Mattson and Hayashi and specifically heard Mattson
yell, “What? You want to choke me out?” As she finished the 911
call, she heard the front door slam. She walked into the living
room and heard Mattson outside yelling, “Now you’re going to lock
me out of my own house?” and asking for his keys and his cell
phone.

According to Kumia, Hayashi then told her to lock the
back door, and she complied. She testified that she also closed
one of the back windows in her bedroom, but Mattson tried to

»enter through another window in her room. Kumia stated that she

‘noticed that Mattson had cut the screen, but indicated that she

4(...continued)

KUMIA: They are in my living room.

911 OPERATOR: What kind of knife?

KUMIA: Um, a pocket knife. I don't know what kind of knife

it is.
911 OPERATOR: Stay on the line with me, okay?
KUMIA: Alright. Knock it off Joe [(referring to
Mattson)]! Joe! “ 1

911 OPERATOR: ls his name Joe?

KUMIA: Yes.

911 OPERATOR: Okay, what is your name?

KUMIA: Val.

911 OPERATOR: What is your last name, Val?
KUMIA: Kumia.

911 OPERATOR: What's Joe's last name?

KUMIA: MattSOn.

911 OPERATOR: He still has the knife right?
KUMIA: Yes.

911 OPERATOR: What’s the son's name?

KUMIA: Joey.

911 OPERATOR: Same last name, right?

KUMIA: Hayashi.

911 OPERATOR: Okay, and you are in apartment Charlie?
KUMIA: YeS.

911 OPERATOR: Okay. Has Joey been injured at all?

Do you need an ambulance?
KUMIA: Um no, 1 don't think so. They are still
arguing.

911 OPERATOR: Alright, officers are on the way.
KUMIA: Okay, thank you.

911 OPERATOR: Thank you.

KUM1A: Bye.

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did not see him cut it. Kumia explained that she tried to close
the window, but Mattson was sticking his arm through the window
with the knife in his hand, trying to take out the louvers. As
she was trying to close the window, Kumia heard Hayashi in the
living room yelling, “Dad, I'm getting my gun. I’m going to
shoot you.” Kumia also heard Hayashi say that he was loading his
gun and testified that, at some point, she went into the living
room and saw Hayashi load the gun. Kumia stated that the gun
belonged to her, but that the ammunition did not.

After seeing Hayashi load the gun, Kumia went back to
her bedroom to, again, try to close the window. Kumia testified
that Mattson continued to ask for his keys and his cell phone
through the window. At that point, Hayashi came in and pointed
the gun at Mattson, but did not fire. Hayashi then approached
the window with a hatchet in one hand and the gun in the other
and started hitting Mattson's hands with the back of the hatchet.
Mattson pulled his hands out of the window, and Kumia and Hayashi
were able to close it. Kumia heard the police coming and heard
Hayashi say, “There, dad, there. Now they’re coming. Now you’re
going down.”

As previously indicated, Kumia testified on direct
examination that she did not see Mattson swing the knife at
Hayashi. She admitted, however, that her statement contained in
the police report indicates that she saw Mattson swinging the

knife at Hayashi and that Mattson was threatening Hayashi while

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holding the knife. On cross-examination, Kumia testified that,
while she was preparing her written statement, the police were
“coaching her” and explained that the police interviewed Hayashi
and her at the same time. Kumia explained that the differences
between her written statement and her testimony at trial resulted

from the coaching by the police and having heard Hayashi's

version of the events immediately prior to writing the statement..

c. testimonies of Officers GormleV and Merrill

HPD Officers Gormley and Merrill both testified that,
on the night of October 13, 2007, they were dispatched to
Mattson's home, after being advised that there was an argument
and a possible suspect with a knife. Upon arriving at Mattson’s
apartment, Officer Gormley observed Hayashi come out the front
door yelling, “He's got a knife, he's got a knife.” Officer
Merrill testified that he heard Hayashi say, “He tried to stab
me.” Both officers testified that, after Hayashi came out of the
apartment, they saw Mattson come around the corner of the
building without the knife. Officer Gormley ordered Mattson to
stop, and Officer Merrill pulled out his duty pistol and pointed
it at Mattson. Officer Merrill instructed Mattson to lie down;
Mattson complied and was thereafter detained.

Officer Gormley testified that Hayashi was upset and
“shaken up.” After calming Hayashi down, she interviewed him
about what happened and then interviewed Kumia. Officer Gormley

indicated that Hayashi and Kumia also provided written

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statements. when asked what instructions were given to them
regarding the preparation of their written statements, Officer

Gormley stated:

l said basically write everything that you just told me, you
got to write it in story form. So you can start like on
today's date at about what time. And then you’re going to
write down in chronological order everything that happened.
what was said, what was stated, how you felt, everything.

when asked, “Do you at any time tell them exactly what to
write[,]” Officer Gormley responded, “No, ma'am.”

Officer Gormley further testified, that while she took
statements, Officer Merrill went to search for the knife. He
subsequently recovered the knife that Mattson had used, stating
that it was partially hidden underneath the corner of a washing
machine on the rear lanai of Mattson's apartment. Thereafter,
the officers arrested Mattson and transported him to the hospital
because he had complained of pain and cuts on his hands and
fingers.

d. testimony of HPD Detective Smith

Detective Smith testified that, on October 14, 2007, he
interviewed Mattson regarding the incident that occurred on
October 13, 2007. He further testified that he had recorded the
interview and identified the compact disc that contained the
interview. Thereafter, Detective Smith's interview with Mattson
was played for the jury.

In relevant part, Mattson stated during the interview

that, at around 8:00 p.m. on October 13, 2007, he and Hayashi

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were relaxing and watching television when Mattson's cell phone
rang, Because the phone call was from Hayashi’s girlfriend,
Mattson gave Hayashi the phone. Hayashi argued with the girl on
the phone and hung up. The phone rang a couple more times, and
Hayashi continued to argue with the person on the phone and
started getting “snappy” with Mattson. Mattson told him that if
he did not stop being disrespectful, he would have to leave.
Mattson stood up and tried to walk past Hayashi to get his
roommate, but Hayashi pulled him sideways and placed him in a
chokehold. Mattson then yelled for his roommate and felt himself
blackout for a few seconds. Mattson stated that, after Hayashi
released him, he walked to a table in the living room, grabbed
his lighter, and walked back over to Hayashi and yelled at him.
He and Hayashi continued to yell at each other, and Mattson again
told Hayashi to leave. Mattson explained that he grabbed a
lighter from the table in the apartment because, due the
commotion of the argument, his mistook his lighter for his keys.
Mattson then saw a car pull up, so he went outside,

thinking it was Hayashi's friend coming to pick him up. After
Mattson stepped outside, Hayashi locked him out of the apartment.
Mattson explained that he intended to leave, but needed his keys

and cell phone. He, therefore, went around to the side of the

_apartment where there was an open window. Mattson explained that

he saw a knife outside, picked it up, and started cutting the

screen on the open window to try and get inside. After a

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confrontation with Hayashi where Hayashi hit Mattson's hand,
threatened to chop off his fingers, and pointed a gun at him,
Mattson gave up and came around the corner of the apartment,
where he encountered police who told him to get down on the
ground.
2. Defendant's Case
Mattson -- the sole witness for the defense --

testified on his own behalf. He testified that, on October 13,
2007, he arrived at his apartment around 5:00 p.m. with
cigarettes for himself, Hayashi, and Kumia. He noticed that
Hayashi had been drinking and admitted that he started to drink
as well. Mattson testified that he and Hayashi were relaxing and
watching television and, at some point, Hayashi passed out next
to him. Mattson explained that the cell phone he had loaned to
Hayashi rang three separate times, Two of the phone calls were
from Hayashi's girlfriend, and, each time Mattson gave Hayashi
the phone, Hayashi raised his voice, argued and swore at the
girl, and threw the phone on the ground. Mattson stated that,
each time Hayashi threw down the phone, he warned Hayashi not to
use bad language and told him not to disrespect Mattson's
property by throwing the phone on the ground. Hayashi then asked
Mattson if he could call his friend, Josh, who was supposed to
pick him up. Mattson gave the phone to Hayashi, who called Josh

and asked him why he was not there yet. Mattson testified that,

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after Hayashi hung up the phone, he returned it “nicely,” with no
anger or agression.

Mattson stated that, when the phone rang a third time,
Hayashi grabbed for it, but Mattson answered it. Mattson heard a
girl on the other end, but the girl did not say anything, so he
hung up. According to Mattson, Hayashi became angry with him,
yanked the phone out of his hand, and yelled at him for hanging
up the phone because he thought it was Josh calling to come pick
him up. Hayashi started swearing and calling Mattson a “liar”
and other names. Mattson also began to raise his voice and, at
some point, told Hayashi to leave the apartment. Hayashi began
acting aggressively toward Mattson by standing up, making
fighting gestures, and calling him bad names. Hayashi then bent
over Mattson and put him in a choke hold, pulling on his neck and
squeezing his throat. Mattson yelled for Kumia several times and
felt himself blackout for a few seconds. Mattson testified that
he did not see Kumia enter the room, and, when he awoke, he saw
Hayashi standing over him, still looking “pissed off.”

Mattson explained that he thought Hayashi would attempt
to jump on him again, so he leaned towards a nearby table (from a
kneeling position) and grabbed a knife. He then stood up, yelled
at Hayashi, and told him to leave the apartment. Mattson
testified that he did not open the knife or swing it at Hayashi.
Hayashi continued calling Mattson names and, at some point,

lunged forward at Mattson. Mattson started to walk towards

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Hayashi, but Hayashi backed away from Mattson and ended up
tripping over stuff on the floor. Mattson yelled at Hayashi for
breaking his stuff and for disrespecting him. He then walked
over to where Hayashi had fallen and reached out to Hayashi to
try to help him up. Hayashi was screaming at Mattson not to stab
him and flailed his arms and legs so that Mattson was unable to
help him up. Mattson again stated that the knife was not open at
any time and indicated that, when he was trying to help Hayashi
get up from the floor, the knife was closed and in his pocket.

At that point, Mattson saw the headlights of a car and,
believing it to be Hayashi's friend, headed towards the front
door. Because he thought Hayashi would run outside and make a
scene, he told Hayashi to shut up and stay inside. He then
walked outside, but realized that the car did not belong to
Hayashi’s friend. Mattson turned around to go back inside and
discovered that Hayashi had locked the front door. He yelled
through the door for someone to give him his keys and cell phone
so that he could leave.

Mattson testified that, when no one answered, he walked
around the back of the building to an open window and again
yelled for his keys and cell phone. ln an attempt to get inside,
Mattson used the knife in his pocket to cut the window screen and
reach the louvres to pull them out. Mattson then saw Kumia come
to the window, and he repeated his request for his keys and cell

phone, but she told him to go away and tried to close it.

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Mattson closed the knifeg but kept his hands in the window area
to prevent Kumia from closing it. Mattson stated that, at some
point, Hayashi came into the room and told Mattson to go away or
he would chop his fingers off. Although Mattson did not see what
Hayashi was using, he felt a hard metal object banging on his
fingers. Mattson indicated that, as he pulled his hands slightly
back from the window, he noticed that Hayashi had a gun pointed
at him. He further indicated that he saw Hayashi pull back the
hammer of the gun. He claimed that he did not remember whether
he told Hayashi that he would get arrested for using a gun.
Mattson eventually gave up and walked back around to the front of
the apartment. At that point, he encountered the police, who
told him to get down on the ground and handcuffed him.

On cross-examination, Mattson admitted to telling ar
different version of the story during his interview with
Detective Smith. Among other discrepancies, he admitted that he
told Detective Smith that he did not have a knife inside the
apartment, only a lighter. He also indicated that he “made up”
some of the story he told Detective Smith because, at that time,
he “only wanted to make the statement that help[ed him].” Also
on cross-examination, the prosecution drew attention to the fact
that Mattson had the opportunity to sit through the evidence
presented at trial. Mattson's counsel objected to this portion

of the cross-examination on the basis that such questioning

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violated Mattson's constitutional rights, but the court overruled
the objection.5
3. C1osing Argument

During its closing argument, the prosecution commented
on the fact that Mattson had the opportunity to sit through all
of the evidence presented at trial. More specifically, the

prosecution stated:

He told you he lied before. He had a chance to sit
through the evidence. He had to make his story gibe [sic]
with what you've heard. what is in evidence. what [Kumia]

even had to admit to, because she -- . . . He sat through
the evidence. There is a 911 tape. [Kumia's] statement.

[Hayashi's] statement, Based on all that, he is not telling
the truth. All of a sudden he remembered that he grabbed
that knife.

This case is about credibility. 1n order to believe
the defendant, you have to be able to answer why didn't
[Kumia] just give him the key? why did [Kumia] lock him out
of the house that night? why lie the day after the event?

5 Specifically, Mattson testified as follows:

Q [By the prosecution] Your memory of what happened,
would you agree with me, was better the day after it
happened than it is today?

A [By Mattson] Yes and no.

Q How is it not better?

A 1 didn't get no sleep.

Q Okay. Or is it that you had an opportunity to see
what the state does have in evidence?

A NO.

Q So you haven't had an opportunity to see what the
state has in evidence?

A Only until the [c]ourt.

Q Okay. And you have had the opportunity to sit
through the evidence that's been presented?

[By defense counsel]: Objection, Your Honor. That's
going into Maluia.

THE COURT: Overruled.

Q [By the prosecution] You had the opportunity to
sit through the evidence that's been presented?

A [By Mattson] Yes.

Q And you’re now testifying in court, right?

A Yes, ma’am.

Q Okay.

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(Emphases added.) Mattson objected to this portion of the
prosecution's closing argument, indicating that such statements
constituted burden shifting.
4. Jury’s verdict and Sentencing

The jury returned its verdict on January 14, 2008,
finding Mattson guilty of one count of terroristic threatening in
the first degree and acquitting Mattson of the remaining charge
of abuse of family or household members. On April 22, 2008,
Mattson was sentenced to a five-year open term of imprisonment,
and the trial court filed the judgment of conviction and sentence
on the same day. On May 20, 2008, Mattson timely filed a notice
of appeal.
B. Appeal Before the 1CA

On direct appeal, Mattson argued that the prosecutor's
remark that Mattson had “the unique opportunity to tailor his
testimony to match the evidence because he was present in the
courtroom during the entire trial” during closing argument
“impermissibly infringed” upon his: (1) constitutional right to
be present at trial and to testify on his own behalf guaranteed
by the Hawafi Constitution; and (2) federal and state
constitutional rights to due process and a fair trial.6 1n his

opening brief, Mattson acknowledged that the United States

6 we observe that Mattson also argued before the ICA that the
prosecutor's line of cross-examination regarding Mattson’s presence at trial
also infringed upon his constitutional rights. However, Mattson does not
assert such argument on application and, as such, we do not further address it
here.

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Supreme Court, in Portuondo v. Agard, 529 U.S. 61 (2000), held
that a prosecutor's comments regarding a defendant's ability to
tailor his testimony based on his presence at trial did not
violate a defendant's federal constitutional rights, but argued
-- as he does on application -- that the reasoning of the
Portuondo dissent is persuasive and should be adopted by this
court in order to give criminal defendants greater protection
than that afforded under the federal constitution. Additionally,
Mattson argued that, “[b]ecause the prosecutor was permitted to
imply . . . that Mattson’s presence during trial permitted
Mattson to tailor his testimony to match the evidence,” the trial
court plainly erred in failing to instruct the jury that Mattson
had a constitutional right to be present throughout the whole
trial and that the jury must not draw any unfavorable inference
regarding Mattson’s credibility on the basis of his presence at
trial.

1n response, the prosecution argued that the Portuondo
majority should be followed by this court and that, under
Portuondo, the prosecutor's remarks during closing argument did
not violate Mattson's constitutional rights because such remarks
were “based entirely upon the evidence” and “reflected [the
prosecutor’s] legitimate attempt to draw attention to the
incredibility of [Mattson’s] version of the incident against the
testimony of all of the other witnesses.” The prosecution

recognized that this court is “free to give broader protection

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under the Hawafi Constitution than that given by the federal
constitution” (citing State v. Viglielmo, 105 HawaFi 197, 211,
95 P.3d 952, 966 (2004), but argued that Mattson “has not shown
in this case that additional protection is warranted.” The
prosecution further argued that, even assuming the Portuondo
dissent is adopted, the prosecutor's comments were not improper
because they were “narrowly tailored to the specific evidence
adduced at trial, including the 911 call[], the other witnesses’
statements[,] and even [Mattson's] own conflicting statements.”
with respect to the jury instructions, the prosecution argued
that the trial court did not plainly err in failing to give an
additional instruction regarding Mattson’s right to be present at
trial because the instructions given in the instant case, “when
read and considered as a whole, were not prejudicially
insufficient, erroneous, inconsistent, or misleading.”
The 1CA rejected all of Mattson's contentions and held

that:

(1) The United States Supreme Court's decision in
Portuondo v. Agard, 529 U.S. 61 (2000), forecloses Mattson's
claim that the prosecutor's argument violated his rights
under the U.S. Constitution.

(2) The prosecutor's argument in this case was not
improper under the Hawaid.Constitution. §§§ State v.
Apilando, 79 Hawafi 128, 142, 900 P.2d 135, 149 (1995)
(holding that “when a defendant takes the stand to testify,
his or her credibility can be tested in the same manner as
any other witness,” and therefore, it was not improper for
the prosecutor to comment that “because [the defendant] had
the highest stake in the outcome of the case, he had the
greatest motive to lie”).

(3) we decline to conclude that the circuit court
committed plain error in failing to instruct the jury, sua
sponte, that Mattson had a constitutional right to be
present throughout trial and the jury must not draw any

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unfavorable inference regarding Mattson's credibility simply
on the basis of his presence at trial.

SDO at 2-3 (brackets in original). Consequently, the 1CA
affirmed the trial court's judgment of conviction and sentence.
;d; at 3.

The 1CA filed its judgment on appeal on June 12, 2009.
Thereafter, this court accepted Mattson's application on October
14, 2009 and heard oral argument on December 3, 2009.

Il. STANDARD 0F REVIEW

“[This court] review[s] questions of constitutional law
de nQyg, under the ‘right/wrong' standard” and, thus, “exercises
[its] own independent constitutional judgment based on the facts
of the case.” State v. Jenkins, 93 HawaiU_87, 100, 997 P.2d 13,
26 (2000) (citation omitted).

III. DlSCUSSION

As previously stated, Mattson contends on application
that the 1CA erred in holding that the prosecutor's remarks
during closing argument were not improper under the HawaiU_
Constitution because the statement that Mattson's presence during
trial enabled him to tailor his testimony to match the evidence
constituted an impermissible and direct attack on Mattson's state
constitutional right to be present at trial and to testify on his
own behalf. As Mattson recognized on appeal to the 1CA, his
argument that his constitutional rights were violated hinges

entirely on this court's approval and adoption of the reasoning

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in the Portuondo dissent. 1ndeed, it is clear that, if this
court were to follow the holding of the Portuondo majority --
which held that, because all testifying witnesses should be
treated the same, the prosecutor's comments regarding a
defendant's ability to tailor his testimony based on his presence
throughout trial did nQ; violate a defendant's constitutional
rights, Portuondo, 529 U.S. at 73, -- then Mattson's argument
would be wholly without merit. Consequently, we now turn to
examine Portuondo. - 2

1n Portuondo, the prosecutor commented on the
defendant's presence at trial during closing argument, stating in

relevant part that,

unlike all the other witnesses in this case[,] the defendant
has a benefit and the benefit that he has, unlike all the
other witnesses, is he gets to sit here and listen to the
testimony of all the other witnesses before he

testifies. . . . That gives you a big advantage, doesn't
it. You get to sit here and think what am 1 going to say
and how am 1 going to say it? How am 1 going to fit it into
the evidence?

529 U.S. at 63-64 (internal quotation marks omitted) (ellipses in
original) (format altered). The defense counsel objected,
claiming that such comments violated the defendant's
constitutional right to be present at trial, but the trial court
for the state of New York rejected such argument and concluded
that the defendant's “presence during the entire trial, and the
advantage that this afforded him, may fairly be commented on.”
;Q; at 64 (citation and internal quotation marks omitted).

Following his conviction, the defendant filed a petition for

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habeas corpus, arguing that the prosecutor's comments violated
his Fifth and Sixth Amendment rights to be present at trial and
confront his accusers, as well as his Fourteenth Amendment right
to due process. ld4 at 64-65. The United States Dihtrict Court
for the Eastern District of New York denied his petition in an
unpublished order. ;Q4 at 65. On appeal from the denial, a
divided panel of the United States Court of Appeals for the
Second Circuit (Second Circuit) reversed his conviction, holding
that the prosecutor's comments violated the defendant's Fifth,
Sixth, and Fourteenth Amendment rights. ;Q4
The Supreme Court granted certiorari and concluded

that: (1) the defendant's claims “ha[d] no historical
foundation,” id; at 65; and (2) “lacking any historical support

for the constitutional rights that he asserts, [the defendant]

must rely entirely upon our opinion in Griffin [v. California,

'380 U.S. 609 (1965) (holding that a prosecutor's comments about a

defendant's refusal to testify were improper and
unconstitutional)], which “is a poor analogue . . . for several
reasons.” ;Q; at 67. The Portuondo majority went on to
distinguish Griffin, differentiating between a prosecutor's
comment on a defendant's refusal to testify, which the majority
determined would impermissibly result in the jury's counting the
defendant's silence at trial against him, and a prosecutor's
comment on the defendant's presence at trial, which the majority

stated would merely result in the jury evaluating the credibility

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of the defendant as a witness -- an evaluation that the majority
stated was both “natural and irresistible” for the jury to make.
1QL at 67-68. The majority further distinguished Griffin,
stating that “Griffin prohibited comments that suggest a
defendant's silence is evidence of guilt,” iQ4 at 69 (emphasis in
original) (citations and internal quotation marks omitted), and,
by contrast, “the prosecutor's comments in this case

concerned [the defendant’s] credibility as a witness, and were
therefore in accord with our longstanding rule that[,] when a
defendant takes the stand, ‘his credibility may be impeached and
his testimony assailed like that of any other witness.’” 1Q;
(quoting Brown v. United States, 356 U.S. 148, 154 (1958))
(emphasis in original). As a result, the Portuondo majority

concluded that

the principle [the defendant] asks us to adopt here[, i.e.,
that the prosecution is precluded from commenting on the
defendant's presence at trial,] differs from what we adopted
in Griffin in one or the other of the following respects:

1t either prohibits inviting the jury to do what the jury is
perfectly entitled to do; or it requires the jury to do what
is practically impossible.

lQ4 at 68 (emphasis added) (footnote omitted).

The majority additionally rejected the defendant's
contention that the prosecutor's comments were impermissible
because they were “generic” rather than based upon any specific
indication of tailoring, concluding that “this Court has approved
of such ‘generic’ comment before.” lQ4 at 71 (citing Reagan v.

United States, 157 U.S. 301 (1895)). Consequently, the majority

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declined to extend the reasoning in Griffin to the defendant's

case and ultimately held that:

1n sum, we see no reason to depart from the practice of
treating testifying defendants the same as other witnesses.
A witness's ability to hear prior testimony and to tailor
his account accordingly, and the threat that ability
presents to the integrity of the trial, are no different
when it is the defendant doing the listening. Allowing
comment upon the fact that a defendant's presence in the
courtroom provides him a unique opportunity to tailor his
testimony is appropriate -- and[,] indeed, given the
inability to sequester the defendant, sometimes essential --
to the central function of the trial, which is to discover
the truth.[U

1Q; at 73. Accordingly, the majority reversed the judgment of
the Second Circuit. lQ4 at 75. 1n a concurring opinion, Justice
Stevens, although agreeing with the majority that the
prosecutor's comments “survived constitutional scrutiny,”
“register[ed] his disagreement with the {majority's] implicit
endorsement” of the prosecutor's closing argument. lQ4 at 76
(Stevens, J., concurring, joined by Breyer, J.). 1nasmuch as the
concurrence fundamentally disapproved of the prosecutor's
comments, it stressed that the majority's final conclusion did
not “deprive [s]tates or trial judges of the power either to
prevent such argument entirely or to provide juries with
instructions that explain the necessity, and the justifications,

for the defendant's attendance at trial.” 1d.

7 The Court also addressed the issue whether the prosecutor's comments
violated the defendant's Fourteenth Amendment right to due process.
Portuondo, 529 U.S. at 74. However, such issue was based on a state statute
that the defendant argued required him to be present at trial. 1d4 at 74-75.
Although we acknowledge that Mattson asserted during oral argument that he was
required to be present at trial, there is no statute in this jurisdiction that
compels the attendance of criminal defendants at trial. Consequently, we do
not further discuss the majority’s reasoning regarding the Fourteenth
Amendment right to due process.

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The dissent in Portuondo disapproved of the majority's
holding, asserting that “[t]he [majority] today transforms a
defendant's presence at trial from a Sixth Amendment right into
an automatic burden on his credibility ” 1Q4 at 76 (Ginsburg,
J., dissenting, with whom Souter, J., joined). The dissent
characterized the majority's attempt to distinguish Griffin as
“unconvincing,” iQ; at 84, and instead opined that both Griffin
and Doyle v. Ohio, 426 U.S. 610 (1976) (holding that a
defendant's silence after receiving Miranda warnings did not
warrant a prosecutor's attack on his credibility) were analagous
to the case before it. ;Q; at 77. More specifically, the
dissent stated that Griffin and Qgyl§ “stem from the principle
that where the exercise of a constitutional right is ‘insolubly
ambiguous' as between innocence and guilt, a prosecutor may not
unfairly encumber those rights by urging the jury to construe the
ambiguity against the defendant” and argued, contrary to the
majority's view, that “the same principle should decide [the
defendant’s] case.” 1d; (internal citation omitted).

Examining the facts in Portuondo, the dissent reasoned:

[The defendant] attended his trial, as was his
constitutional right and his statutory duty, and he
testified in a manner consistent with other evidence in the
case, One evident explanation for the coherence of his
testimony cannot be ruled out: [the defendant] may have
been telling the truth. It is no more possible to know.
whether [the defendant] used his presence at trial to figure
out how to tell potent lies from the witness stand than it
is to know whether an accused who remains silent had no

exculpatory story to tell.

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1QL The dissent further reasoned that “every defendant who
testifies is equally susceptible to a generic accusation about
his opportunity for tailoring” and “the prosecutorial comment at
issue, tied only to the defendant's presence in the courtroom and
not to his actual testimony, tarnishes the innocent no less than
the guilty.” ;Q; at 77-78. As a result, the dissent concluded

that

the interests of truth are not advanced by allowing a
prosecutor, at a time when the defendant cannot respond, to
invite the jury to convict on the basis of conduct as
consistent with innocence as with guilt. where burdening a
constitutional right will not yield a compensating benefit,
as in the present case, there is no justification for
imposing the burden.

;QA at 79. 1n other words, the dissent espoused the belief that
a generic accusation of tailoring based solely on a defendant's
presence at trial would burden the constitutional right of a
defendant to be present throughout his or her trial.

The dissent further disapproved of the majority's
holding that to prohibit generic accusations of tailoring at
summation would “prohibit[] prosecutors from inviting the jury to
do what the jury is perfectly entitled to do.” 1Q4 at 86
(citation and internal quotation marks omitted). More
specifically, the dissent pointed out that the majority
“offer[ed] no prior authority . . . for the proposition that a

jury may constitutionally draw the inference now at issue,” i.e.,

infer that a defendant who is present at trial tailored his

testimony to match the evidence presented, and argued that, “even

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if juries were permitted to draw the inference in question, it
would not follow that prosecutors could urge juries to draw it.”
1Q; (emphasis added).

Ultimately, the dissent concluded that the majority's

holding produced a “prosecutorial practice that burdens the

iconstitutional rights of defendants, that cannot be justified by

reference to the trial's aim of sorting guilty defendants from
innocent ones, and that is not supported by our case law.” 1d.
at 88. Consequently, the dissent endorsed the reasoning of the

Second Circuit and concluded that:

The restriction that the [Second Circuit] placed on generic
accusations of tailoring is both moderate and warranted.
That court declared it permissible for the prosecutor to
comment on what the defendant testified to regarding
pertinent events -- the fit between the testimony of the
defendant and other witnesses. what is impermissible, the
Second Circuit held, is simply and only a summation
bolstering the prosecution witnesses’ credibility vis-a-vis
the defendant's based solely on the defendant's exercise of

a constitutional right to be present during the trial.

;Q; (emphases added) (citation, internal quotations marks, and
ellipsis omitted).

On application, Mattson argues that, “{i]n rendering
its decision, the 1CA failed to address the Portuondo dissent's
persuasive arguments and this [c]ourt's long-standing principle
that the HawaFi Constitution may afford the people of the State
of Hawafi more protection than by the federal constitution ”
More specifically, Mattson points to the rationale from the
Portuondo dissent that the majority's holding “transform[s] a

defendant's presence at trial from a Sixth Amendment right into

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an automatic burden on his credibility” (citing Portuondo, 529
U.S. at 76 (Ginsburg, J., dissenting, with whom Souter, J.,
joined)) and argues that the Portuondo dissent more adequately
protects the constitutional rights of defendants. Accordingly,
Mattson argues that this court “should reject the Portuondo
majority, as its reasoning does not adequately preserve the right
to confrontation guaranteed under article 1, section 14 of the
HawaiH Constitution, or the right to testify under various state
constitutional guarantees.” Consequently, Mattson urges this
court to adopt the reasoning set forth in the Portuondo dissent
and hold that “a prosecutor's generic accusation during summation
that a defendant tailored testimony to evidence presented [i]s
improper and unconstitutional ”

1n its answering brief, the prosecution essentially
contended that the Portuondo majority is well-reasoned and should
be followed and that, under Portuondo, it is clear that the
prosecutor's remarks during closing argument did not violate
Mattson's constitutional rights. Although acknowledging that
this court has often given broader protection under the Hawafi
Constitution than that given by the federal constitution, the
prosecution argued that Mattson “has not shown in this case that
additional protection is warranted.”

As acknowledged by the parties, we have consistently
stated that, “as the ultimate judicial tribunal with final,

unreviewable authority to interpret and enforce the HawaiU_

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Constitution,” this court is free to “give broader protection
under the Hawaid.Constitution than that given by the federal
constitution.” State v. Arceo, 84 Hawaid.1, 28, 928 P.2d 843,
870 (l996) (quoting State v. wallace, 80 HawaiH.382, 397 n.14,
910 P.2d 695, 710 n.14 (1996)) (internal quotation marks
omitted). we have also previously concluded that, “when the
United States Supreme Court's interpretation of a provision
present in both the United States and Hawaid.Constitutions does
not adequately preserve the rights and interests sought to be
protected, we will not hesitate to recognize the appropriate
protections as a matter of state constitutional law.” State v.
§Qw§, 77 HawaFi 51, 57, 881 P.2d 538, 544 (1994) (citations,
internal quotation marks, and original brackets omitted).

Upon careful consideration of the reasoning set forth
in Portuondo and the arguments of the parties, we believe that
the holding of the Portuondo majority does not provide adequate
protection of defendant's rights under article 1, section 14 of
the HawaFi Constitution, i;§4, the confrontation clause. 1t is
well-settled that upholding a defendant's rights under the
confrontation clause is essential to providing a defendant with a
fair trial. See State v. Peseti, 101 HawaiH.172, 180, 65 P.3d
119, 127 (2003) (stating that the confrontation clause “provides
two types of protections for a criminal defendant: the right
physically to face those who testify against him [or her], and

the right to conduct cross-examination” (brackets in original));

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see also Apilando, 79 HawaFi at 131, 900 P.2d at 138 (stating
that “[t]he confrontation right provides the criminal defendant
with the opportunity to defend himself [or herself] through our
adversary system by prohibiting ex parte trials, granting the
defendant an opportunity to test the evidence in front of the
jury, and guaranteeing the right to face-to-face confrontation”
(quoting O. weinstein, Coy v. 1owa: Reconciling a Defendant's
Right to Confrontation with a Child-witness' 1nterest in Avoiding
Undue PsVchological Trauma, 23 Loy. L.A. L. Rev. 415, 437 (1989)
(brackets in original)). Further, although this court has
previously allowed the prosecution wide latitude when making
closing remarks, we have also concluded that a prosecutor's
comments may nQ; infringe on a defendant's constitutional rights.
For example, in State v. wakisaka, 102 HawaiH.504, 78 P.3d 317
(2003), this court held that it is “a bedrock principle of the
Hawafi Constitution” that “the prosecution cannot comment on the
defendant's failure to testify because this infringes on the
defendant's right not to be a witness against her - or himself.”
1d$ at 515, 78 P.3d at 328.

As aptly observed by the Portuondo dissent, the holding
of the Portuondo majority “transforms a defendant's presence at
trial from a {constitutional] right into an automatic burden on
his credibility.” Portuondo, 529 U.S. at 76 (Ginsburg, J.,
dissenting, with whom Souter, J., joined). 1ndeed, under the

reasoning of the majority, the prosecution can permissibly make a

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comment that is related Qnly to the defendant's presence in the
courtroom and not to his actual testimony. 1d; at 73. As a
result, every defendant who testifies is “equally susceptible” to
such a generic accusation that he or she has tailored his or her
testimony, regardless of the content of the testimony. 1d. at 77
(Ginsburg, J., dissenting, with whom Souter, J., joined). Thus,
we believe -- as also observed by the Portuondo dissent -- that
applying the majority's reasoning would produce a “prosecutorial
practice that burdens the constitutional rights of defendants,'

that cannot be justified by reference to the trial's aim of

d sorting guilty defendants from innocent ones[.]” 1d. at 88.

we are instead persuaded by the reasoning of the
Portuondo dissent. More specifically, we agree that a
restriction placed on the prosecutor's ability to make generic
accusations of tailoring during closing argument is “both
moderate and warranted,” id4 at 88, because such accusations
“cannot sort those who tailor their testimony from those who do
not, much less the guilty from the innocent.” 1d; at 78. we
also agree that “allowing a prosecutor, at a time when the

defendant cannot respond, to invite the jury to convict on the

basis of conduct as consistent with innocence as with guilt,” id.

at 79, would not only be improper, but would also disregard the
truth-seeking purpose of a trial inasmuch as generic accusations
of tailoring do not aid the jury in any way in determining

whether a defendant has tailored his testimony or simply related

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a true version of the events. Consequently, we agree with the
Portuondo dissent, as indicated above, that generic accusations
of tailoring during closing argument that are based only on a
defendant's presence throughout the trial burden the defendant's
constitutional right to be present at trial and could discourage
a defendant from exercising his constitutional right to testify
on his own behalf. Accordingly, we adopt the reasoning of the
Portuondo dissent and conclude that it would be improper, under
article 1, section 14 of the Hawafi Constitution, for the
prosecution to make generic accusations during closing argument
that a defendant tailored his testimony based solely on the
defendant's exercise of his constitutional right to be present
during the trial. we now turn to examine whether the
prosecutor's remarks in the instant case were constitutionally
improper.
Mattson contends on application that the prosecutor in

the present case made the very kind of “generic accusation during
summation” that the HawaFi Constitution prohibits. More

specifically, Mattson argues:

The prosecutor did not indicate that Mattson’s opportunity
to tailor his statements was in any way evidenced by
Mattson's testimony or connected to its cross-examination of
Mattson. The prosecutor did not connect any accusation to
specific evidence of tailoring at trial, but instead, made a
general accusation resting not on evidentiary support, but
only innuendo. This kind of argument invited the jury to
infer that any consistency in Mattson's testimony with the
testimony of other witnesses derived from Mattson's presence
at trial, rather than allowing the jury to weigh the
evidence and credibility of the testimony on the merits.
Consequently, the prosecutor's comments violated Mattson's

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right to be present at trial for the purpose of confronting
witnesses and to testify in his defense.

1n its answering brief, the prosecution argued that,
even assuming this court adopts the rationale of the Portuondo
dissent, the prosecutor's comments did not violate Mattson's
constitutional rights because “the prosecutor's remark[s], based
entirely upon the evidence, reflected [her] legitimate attempt to
draw attention to the incredibility of [Mattson's] version of the
incident against the testimony of all of the other witnesses.”
The prosecution further argued that such comments were clearly
“narrowly tailored to the specific evidence adduced at trial,
including the 911 call[], the other witnesses’ statements[fl and
even [Mattson's] own conflicting statements.”

As previously indicated, the prosecutor, during

closing argument, stated:

He told you he lied before. He had a chance to sit
through the evidence. He had to make his story gibe with
what you've heard. what is in evidence. what [Kumia] even
had to admit to, because she --. . . . He sat through the
evidence. There is a 911 tape. [Kumia's] statement,
[Hayashi’s] statement{ Based on all that, he is not telling
the truth. All of a sudden he remembered that he grabbed
that knife. '

This case is about credibility. 1n order to believe
the defendant, you have to be able to answer why didn't
[Kumia] just give him the key? why did [Kumia] lock him out
of the house that night? why lie the day after the event?

Thank you.
(Emphases added.) we first acknowledge that the prosecutor, in
making the above-quoted argument: (1) clearly drew attention to

Mattson's presence throughout the trial when she argued that
“[h]e had a chance to sit through the evidence” and later

repeated that “he sat through the evidence”; and (2) specifically

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made an accusation that Mattson tailored his testimony to the
evidence presented when she argued that “[h]e had to make his
story gibe [sic] with what you've heard.” However, the
prosecutor also referred to specific evidence adduced at trial
that was directly contradictory to Mattson’s testimony.

Specifically, the prosecutor referenced the 911 tape
that was played for the jury, Kumia's statement, and Hayashi's
statement. As previously indicated, the 911 tape included
evidence that Mattson was threatening Hayashi with a knife on
October 13, 2007. §§§ §up;a note 4. Additionally, Kumia's and
Hayashi’s statements established that, on the night in question,
Mattson grabbed a knife, swung it at Hayashi, and threatened him
with it. The aforementioned evidence directly contradicted
Mattson’s own testimony that the knife was closed and that he did
not threaten Hayashi with it.

The prosecutor also relied on the fact that Mattson's
testimony at trial conflicted with the interview he gave
Detective Smith on October 14, 2007. More specifically, the
prosecutor referenced the fact that Mattson told the jury that he
“lied before.”4 Such an argument logically refers to Mattson's
admission at trial that he “made up” parts of the interview with
Detective Smith because he “only wanted to make the statement
that help[ed him] ” Additionally, the prosecution specifically
highlighted the fact that Mattson “[a]ll of a sudden

remembered that he grabbed that knife.” 1t is reasonable to

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infer that the prosecutor was referring to the inconsistency
between Mattson's interview with Detective Smith, at which time
he stated that he never had a knife inside the apartment, and his
version of the events after he heard the evidence presented at
trial, iy§4, his testimony that he grabbed a knife on a table in
his apartment but did not open it.

0 Based on the foregoing, it is evident that, in addition
to citing the fact that Mattson was present at trial and heard
testimony of other witnesses, the prosecutor identified and
relied upon specific evidence adduced at trial that demonstrated
the inconsistencies between Mattson's testimony at trial and
Kumia's 911 call, Kumia's statement, Hayashi's statement, and
Mattson's own prior statements, Because the prosecution referred
to specific evidence presented at trial in addition to referring
to Mattson's presence at trial, it cannot be said that the
prosecutor's remarks during closing argument constituted a
“generic accusation” that Mattson tailored his testimony based
solely on his presence at trial. Consequently, given these
circumstances, we conclude that the prosecutor's comments did not
violate Mattson's constitutional right to be present at trial
under article 1, section 14 of the Hawafi Constitution. 1t,
therefore, follows that the prosecutor's comments did not

constitute prosecutorial misconduct.

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. * * * F()R PUBLICATION * * *
in West’s Hawai‘i Reports and the Pacific Reporter

1nasmuch the prosecutor's comments did not violate
Mattson's constitutional rights, it was not necessary for the
trial court to §ua sponte instruct the jury regarding Mattson's
constitutional right to be present at trial. Accordingly, there
is no need to address Mattson's remaining argument that the trial
court committed plain error in failing to instruct the jury that
Mattson “had a constitutional right to be present throughout the
trial and the jury must not draw any unfavorable inference
regarding Mattson's credibility simply on the basis of his
presence at trial.”
l\/' . CONCLUSION
Based on the foregoing, we adopt the reasoning of the

dissent in Portuondo v. Agard, 529 U.S. 61 (2000) (Ginsburg, J.,
dissenting, with whom Souter, J., joined) and conclude that it
would be improper, under article 1, section 14 of the HawaiU_
Constitution for the prosecution to make generic accusations
during closing argument that a defendant has tailored his or her
testimony based solely on the defendant's exercise of his or her
constitutional right to be present at trial. 1n the instant`
case, however, we conclude that the prosecutor's comments were
based on specific evidence adduced at trial -- not solely on
Mattson's exercise of his right to be present at trial -- and,
thus, such comments were not improper under the HawaiU_

Constitution. Consequently, we affirm the 1CA’s June 12, 2009

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t t t FoR PUBLICAT!QN t t t
in West’s Hawai‘i Reports and the Pacii`ic Reporter

judgment on appeal that, in turn, affirmed the trial court's

April 22, 2008 judgment of conviction and sentence.

Susan L. Arnett (James S. Tabe, ';:

on the app1ication), Deputy

Public Defenders, for in £, f
Detitioner/defendant- a"`j\M£LM4Hd7Lp
appellant ~ mae/1 5

Anne K. Clarkin, Deputy
Prosecuting Attorney,
for respondent/plaintiff-
appellee

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