State v. Walsh

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
29790
23-AUG-2011
08:24 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Petitioner/Plaintiff-Appellee

vs.

TIMOTHY A. WALSH, Respondent/Defendant-Appellant

NO. 29790

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 08-1-0418(3))

AUGUST 23, 2011

ACOBA, DUFFY, JJ., AND CIRCUIT JUDGE SAKAMOTO, ASSIGNED
DUE TO A VACANCY; WITH RECKTENWALD, C.J., CONCURRING
IN THE RESULT, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY ACOBA, J.

We hold that (1) in the criminal trial of a defendant,

the prosecution’s statements that a testifying defendant

“benefitted” from his trial presence and, thus, is less credible

because he heard the testimony of other witnesses and heard

during voir dire that eye contact with the jurors was an

indicator of trustworthiness, constitute prohibited “generic

tailoring” arguments; (2) prohibited generic tailoring arguments
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are reviewable as plain error inasmuch as they affect a

defendant’s substantial constitutional rights; (3) standard jury

instructions regarding witness testimony and counsel’s arguments

do not cure such improper arguments; (4) accordingly, whenever a

defendant testifies, the jury must be instructed that the

defendant has a right to be present during trial; and (5) in this

case the error is not harmless beyond a reasonable doubt. Based

on the reasons set forth herein, we affirm the June 10, 2010

judgment of the Intermediate Court of Appeals (ICA) filed

pursuant to its May 26, 2010 published opinion1 vacating the

March 31, 2009 judgment of the Circuit Court of the Second

Circuit (the court)2 adjudging Respondent/Defendant-Appellant

Timothy A. Walsh (Respondent) guilty of Assault in the Second

Degree, Hawai#i Revised Statutes (HRS) § 707-711(1)(b) (Supp.

2008),3 see State v. Walsh, 123 Hawai#i 284, 231 P.3d 1001 (App.

2010), and remand the case for a new trial, consistent with this

opinion.

I.

On May 31, 2008, two groups of people were involved in

an altercation outside of an all-in-one restaurant, sports bar,

1
The opinion was authored by Associate Judge Lawrence M. Reifurth
and joined by Presiding Judge Daniel R. Foley. Associate Judge Alexa D.M.
Fujise filed a separate concurring opinion.

2
The Honorable Joseph E. Cardoza presided.

3
HRS § 707-711(1)(b) provides that “[a] person commits the offense
of assault in the second degree if[] . . . [t]he person recklessly causes
serious or substantial bodily injury to another[.]”

2
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and nightclub called “Oceans Beach Bar and Grille” (the bar) in

Kukui Mall in Kihei, Maui. One group consisted of Respondent,

his sister Stephanie Walsh (Stephanie), and friends Lucy Mapson

(Lucy) and Ilia Pikaki (Ilia). The other group consisted of

Kapena Kramer (Kapena), his brother Iopeka Kramer (Kepa), their

friend Donald, known as Kala, and other men who were celebrating

Kepa’s upcoming wedding. Both groups had been drinking alcoholic

beverages. Respondent argued with Kala, and Ilia became involved

in a fight with Kepa. Kapena attempted to stop the conflict

between Ilia and Kepa. At some point, Respondent punched Kapena

in the jaw.

A.

Respondent was present throughout the trial, including

voir dire during jury selection.4 Respondent, Stephanie, Lucy,5

Kapena, Kepa, two police officers, and John Cooprider, the

general manager of the bar, among others, testified at trial.

Respondent testified last. The following relevant matters, some

verbatim, are adduced from the testimony of witnesses at trial as

indicated.

4
A transcript of the voir dire proceedings is not part of the
record. Voir dire is a “preliminary examination of a prospective juror by a
judge or lawyer to decide whether the prospect is qualified and suitable to
serve on a jury.” Black’s Law Dictionary 1710 (9th ed. 2009).

5
Because Lucy and Stephanie testified to a similar version of the
events, their testimony are discussed together.

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1. Lucy Lei Mapson and Stephanie Marie Walsh

On the evening in question, Stephanie and Lucy arrived

at the bar at approximately 11:30 p.m. They left the bar when it

closed, met Respondent and Ilia, and together they headed towards

Lucy’s car, which was parked near Paradise Photo. On the way to

Lucy’s car, which was parked in front of the photo shop,

Stephanie argued with Respondent. They stopped when males parked

in the row behind them started yelling at them. According to

Stephanie, Kala “told [Respondent] to shut the F up[,]” and

Respondent replied, “[M]ind [your] own business[,]” to which Kala

responded, “[S]hut the F up you stupid haole[.]”6 The males

walked towards Respondent, Stephanie, Lucy, and Ilia.

According to Lucy, Kala, who was “angry [and] pumped

up,” and Respondent then stood “[f]ace to face[]” and yelled at

each other. Five men attacked Respondent. To defend himself,

Respondent “[t]hrew [a] couple [of] punches[]” but was backed

into a corner. Stephanie was with Respondent and sought to

prevent the men from striking him. According to Stephanie, the

men took Respondent into a corner and “[p]unched and kicked and

stomped on[]” Respondent “30 times[,]” and, as a result,

Respondent had “bumps on his face[,]” “big lumps” on “the back of

his head” and a “black and blue[]” mouth. Respondent “curled up

in a ball” about 15 feet from the car. He was punched and kicked

for three or four minutes. No security guard became involved.

6
“Haole” is a Hawaiian word for a white person or “Caucasian.”
Mary K. Pukui & Samuel H. Elbert, Hawaiian Dictionary 58 (rev. ed. 1986).

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At some point, four men approached Ilia and started

attacking him. Lucy attempted to prevent them from doing so, but

she was hit in the face and fell to the ground. According to

Lucy, the fight between Ilia and the men seemed to last for five

minutes.

After the confrontation between Ilia and the other men

had tapered off, Respondent escaped from the corner and was in

the parking lot near Lucy’s car. He was still being punched. At

some point, Respondent “slipped out,” “ducked under[,] and moved

away[,]” to where he was steps away from Ilia and a male who was

yelling at Ilia and using his hands to explain a point.

Respondent came up to the male, apparently Kapena, and struck

Kapena. The male fell and hit Lucy’s car. At the time Kapena

was struck, other men were continuing to brawl. Lucy did not see

any “bouncers” or security guards in the parking lot during the

altercation.

Respondent fled and one of the bouncers from the bar

held him on the ground. The police arrested Respondent, who,

according to Lucy, had blood on his mouth and whose “head was

lumped up pretty bad.”

2. Kapena Jonah Kramer

According to Kapena, he, Kepa, Kala, and another

friend7 drank at the bar, left the bar when it closed, and headed

toward their vehicles in the parking lot. By that time, Kapena

7
Kapena stated that approximately ten friends had been at the bar
to celebrate Kepa’s bachelor party.

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was intoxicated, as he had imbibed tequila and eight to nine

beers throughout the night. Kala had a “verbal confrontation”

with Respondent, who initially was with two females, near the

corner of the photo shop. Kala and Respondent fought and

wrestled for about five minutes. No staff or security guards

became involved.

At the time Respondent and Kala began to clash, Kala

was ten to fifteen yards away from Kapena. Shortly after Kala

and Respondent began to fight, Kepa, who was standing next to

Kapena, became involved in a confrontation with Ilia. This

confrontation occurred at the corner of Paradise Photo. Kepa and

Ilia fought for about thirty seconds before Kapena stepped in and

stopped Kepa from continuing. Kapena recalled that he attempted

to calm his brother and Ilia. At that point Kapena had his hands

up, indicating that the conflict had ended. Kapena did not

recall the location of the females. The next thing Kapena

remembered, he was “waking up lying on the ground” near the

corner of the photo shop.

3. Kepa Kramer

Kepa was intoxicated due to his consumption of beers,

whiskey, and tequila. When he, Kapena, Kala, and another friend

left the bar and headed toward the vehicle in the parking lot,

Kepa saw a male and a female arguing. Kepa did not see any

security guards or staff near the male and female. One of Kepa’s

friends asked Respondent, “[W]hy do you have to pick on a girl?”

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Kepa saw Kala argue and fight8 with Respondent. Kepa and Ilia

began to fight. The altercation between Kepa and Ilia started in

the parking lot, and ended on the sidewalk near the corner of the

photo shop. Someone pulled Kepa away, and “it was done.”

According to Kepa, at that point, no other clashes were

occurring. Kepa had begun to walk to his vehicle when Kapena was

struck. Kepa did not see what happened but saw Kapena on the

ground. Kepa chased Respondent and hit him in the face and head.

4. Respondent

Respondent and Ilia met Stephanie and Lucy outside the

bar. Respondent, Stephanie, Lucy, and Ilia walked to the car, at

which time Respondent argued with Stephanie. When Respondent was

in front of Lucy’s car, “some guys across the street started

yelling[,]” and Respondent “told them to mind their own

business[,]” to which one of the men responded, “[S]hut the F up,

you stupid haole.”

The men approached, and Kala started arguing with

Respondent, who put up his hands because he believed Kala was

going to attack him. Respondent initially was in front of Lucy’s

car. He was punched and “everything kind of went black.”

Respondent “tried to duck and kind of run away,” but he was

continually “side blinded[.]” He tripped on the curb six feet

from the car and fell into the photo shop doorway. Respondent

was kicked and struck “at least ten” times during the thirty-to-

8
On cross examination, Kepa changed his story and stated that he
“never saw [the fight between Respondent and Kala] get physical.”

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forty-five seconds he was in the doorway. Stephanie attempted to

pull Respondent’s attackers away, which allowed Respondent to

escape.

Respondent “scrambled out of the doorway[]” when he was

struck on the back of his head and he fell forward seven to eight

feet from Lucy’s car. Respondent made an effort to stand, but he

was kicked and he “curled up” on the ground. Respondent

attempted to leave, and “crawled[]” around the car. He “got up

and stumbled and just swung a punch.”

According to Respondent, he “swung blindly, and just

[attempted] to hit whoever was around [him] because [he] was

getting attacked.” He put his head down and was in a crouched

position, and “just swung blindly[.]” Respondent struck Kapena.

Respondent struggled to move away but was hit in the back of the

head. Respondent sought to defend himself, but the kicking and

punching continued. At some point, the police arrested him.

5. John Cooprider

According to Cooprider, the bar closes at approximately

1:15 a.m. Once customers leave, they may socialize in the

parking lot. Bar employees attempt to clear the parking lot to

“make sure no one is stumbling, . . . fighting, [or] drinking[.]”

Cooprider’s duties included overseeing activities and ensuring

people were safe, and not “over intoxicated.” If patrons are

stumbling and intoxicated, Cooprider and his staff find them a

taxi or a ride home.

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That night, everyone was out of the bar by 1:30.

Cooprider walked, with another security guard, across the parking

lot to the corner of Paradise Photo. There, he noticed Kapena

and another male standing close to each other and speaking

loudly. Kapena was not with a group of people, but “was by

himself[]” when he was taking with the male. According to

Cooprider, the man conversing with Kapena appeared to be with

Respondent.

He also noticed a “commotion” among a group consisting

of mostly males and security guards twenty yards away from him.

Security guards were “trying to get people to leave[,]” as if

“there [had been] an altercation[.]” Cooprider did not feel that

he had to help because the situation was “under control.”

Instead, Cooprider turned his attention to the two men having a

conversation. Cooprider was five or six feet from them, and

although Cooprider was “concerned enough” to pay attention, he

did not think their conversation would result in a physical

confrontation. According to Cooprider, “it seemed like they were

arguing about something” and were “a little passionate,” but the

males’ hands were down at their sides. He did not notice any

women.

About thirty seconds later, Cooprider observed

Respondent, who was by himself, walk away from the commotion,

towards the two men, in a “calm, cool, collective [sic]” manner.

Cooprider observed Respondent move to the corner of Paradise

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Photo. Respondent “did not have any cuts, bruises, [or] bleeding

whatsoever[.]” Respondent “walked approximately 30 inches in

front of [Cooprider], and [] looked over to the left[,] saw

[Kapena,] and hit him” “with everything he had[.]” According to

Cooprider, Kapena “did not see [Respondent] coming[.]” In his

view, Respondent “blind sided a helpless person.”

After Respondent struck the man, he defended himself

from approximately fifteen people who “charge[d] him.” Cooprider

noticed two women defending Respondent and pushing other men off

of him. Cooprider and the security guards attempted to

intervene, but the fight continued. At one point, Cooprider

pulled Respondent off of someone else and put him on the ground.

6. Police officers

Maui police officers arrived at the scene at

approximately 2:00 a.m. By that time, the affray had ended.

Kapena was taken to the hospital where he was treated for two

fractures. An officer noticed that Respondent had a cut lip and

bruises.

B.

In closing argument, the prosecutor maintained that the

“issue” was whether Respondent acted in self defense; Respondent

did not act in self defense and the defense witnesses,

Respondent, Stephanie, and Lucy, were not credible; particularly,

Respondent was not credible because he had been present and heard

voir dire and the testimony of other witnesses:

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So, you find out a little bit more about the character of
the individual we’re talking about.
Well, [Lucy] got CPR training, yada, yada, yada, but
she doesn’t take the time to dial 911. What was brought up
about her on the stand is if you notice, you folks had a
chance to see her demeanor. When we’re asking about
somebody, regardless of the reason why, even if they want to
claim self-defense, there’s somebody, a boy injured on the
ground, knocked out, blood coming out of his head with his
jaw busted in two places. How does she react? Doesn’t that
tell you a lot about the character of the individual?
Some of you during voir dire and jury selection were
asked about what you would look at, and the defense went
into great detail. Remember one thing that was asked by me
to [Respondent]? You know, [Respondent], first of all, is
entitled, since he’s on trial here, is entitled to hear and
see all the witnesses. But with that becomes the facts
[sic] that he’s benefitted from seeing all these witnesses.
Before he got up on that stand, he saw each and every one of
the witnesses, heard what they were going to say.
What’s important about that is not only that, he heard
the voir-diring questions, which some of you had mentioned,
I believe you said, well, you know, if they looked me in the
eye. Okay, so he gets up here and looks each one of you in
the eye. See how sincere I am? Does that mean you’re
sincere? Well, what about, you know, Kepa got up there, and
he was nervous. Remember Iokepa and Kapena, they had never
been in trouble before and never testified before. They get
up here. They were nervous. Yeah, think about it. You
have to come up here for the first time in this kind of
atmosphere, you’re going to be nervous.
. . . .
. . . [W]hy it is important that you remember that
testimony that was given to you last week from [Cooprider],
the only sober, the only independent witness that was there,
what he saw, what axe did he have to grind. We’ll get into
that.
But the fact of the matter is it is important that
when the [c]ourt has read you those instructions about . . .
the credibility of witnesses, yes, you take into
consideration all those items such as their appearance and
demeanor, their manner of testifying, the intelligence,
candor and frankness, the lack thereof, the interest in
[sic] bias and motives for testifying, the opportunity for
acquiring information, the probability or improbability of
the witness’ testimony[,] the extent to which a witness is
supported or contradicted by other evidence and supported
[sic] the extent to which a witness gave contradictory
statements and whether at trial or at other times and all
other circumstances surrounding it.
But don’t get fooled into a position where somebody
can look you in the eye, they must be telling the truth. If
you know how to look somebody in the eye, you can still lie.
If we look at the independent witnesses [sic] [Cooprider],
what axe did he have to grind? What does he tell you? It
corroborates everybody’s testimony, even corroborates even
[sic] [Respondent’s] own testimony. What does [Cooprider]
say? He’s sitting there. He watches [Respondent], not, oh,
crawling on the ground getting up. . . .

(Emphases added.)

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Respondent’s counsel in part responded to the

prosecutor’s attack on Respondent’s credibility by emphasizing

that Respondent had been “upfront” and had “told . . . the

truth.” Respondent’s counsel urged the jury not to “speculat[e]”

or reach a verdict by “looking at [Respondent] and thinking . . .

[that Kapena and Kepa] looked a lot nicer[.]” In rebuttal, the

prosecutor maintained, among other things, that Respondent “was

lying” and, in contrast, “Cooprider did tell . . . the full

story[.]”

On January 26, 2009, the jury found Respondent guilty.

II.

A.

On appeal to the ICA, Respondent argued, inter alia,9

that the court erred in (1) “allowing the prosecutor to make the

constitutionally impermissible argument during closing argument

that [Respondent] heard the testimony of all other witnesses and

tailored his testimony to match the evidence[,]” and in

(2) “allowing the prosecutor to argue that [Respondent’s]

presence during jury selection allowed him to adapt his manner of

testifying based on the jurors’ answers during voir dire in order

to appear more credible to the jury.” According to Respondent,

the statements regarding Respondent’s attendance during voir dire

9
Respondent also argued that the prosecutor’s statements during
closing argument deprived Respondent of his rights to due process and a fair
trial, and that the court “plainly erred in failing to instruct the jury that
[Respondent] had a constitutional right to be present throughout trial, . . .
and that the jury must not draw any unfavorable presence based simply on his
presence throughout the trial.”

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and testimony “impermissibly infringed on [Respondent’s]

constitutional right to be present during the trial . . . and had

a chilling effect on [Respondent’s] right to testify on his own

behalf[.]” Petitioner/Plaintiff-Appellee State of Hawai#i

(Petitioner or the prosecution) countered that the prosecutor’s

comments were proper.

Both parties relied on Portuondo v. Agard, 529 U.S. 61,

64 (2000), which held that a defendant’s Fifth,10 Sixth,11 and

Fourteenth Amendment12 rights were not violated when the

prosecutor, in her summation, highlighted that “the defendant has

a benefit and the benefit that he has, unlike all the other

witnesses, is . . . to sit here and listen to the testimony of

all the other witnesses before he testifies.” Indeed, the

Portuondo majority stated that the truth-seeking function of

trial is served by the prosecutor commenting on a defendant’s

“opportunity” to tailor his testimony. Id. at 73.

Justice Stevens concurred, disagreeing with the

majority’s implicit endorsement of the prosecutor’s argument

which, in his view, demeaned the truth-seeking function of the

adversary process, violated the defendant’s individual dignity,

10
The defendant argued that his Fifth Amendment right to testify on
his own behalf was violated. 529 U.S. at 65.

11
The defendant argued that the prosecutor’s comments unlawfully
burdened his Sixth Amendment rights to be present at trial, to testify on his
own behalf, and to be confronted with the witnesses against him. Id.

12
The defendant argued that because New York law required him to be
present at trial, the prosecution violated his right to due process by
commenting on that presence. Id. at 74.

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and ignored the presumption of innocence. Id. at 76 (Stevens,

J., concurring, joined by Breyer, J.). However, Justice Stevens

suggested that the states could prohibit such argument or

instruct the jury that a defendant had a right to be present at

trial:
The Court’s final conclusion, . . . that the argument
survives constitutional scrutiny does not, of course,
deprive States 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.

Id. (emphasis added). Justice Ginsburg dissented, concluding

that the majority’s holding transformed the defendant’s presence

at trial “from a Sixth Amendment right into an automatic burden

on his credibility[,]” id. at 76 (Ginsburg, J., dissenting,

joined by Souter, J.), and that “[i]n the end, we are left with a

prosecutorial practice that burdens the constitutional 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.” Id. at 88 (Ginsburg, J.,

dissenting, joined by Souter, J.). The Portuondo dissent

reasoned that a generic tailoring argument during summation was

improper:
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.
Nor can a jury measure a defendant’s credibility by
evaluating the defendant's response to the accusation, for
the broadside is fired after the defense has submitted its
case .

Id. at 77-78 (emphasis added).

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According to the Portuondo dissent, generic tailoring

comments occur when the prosecutor uses “the mere fact of the

defendant’s presence at his trial as the basis for impugning his

credibility.” Id. at 78. In the dissent’s view, a prosecutor,

during closing argument, should not be permitted to comment on a

defendant’s trial presence “where there is no particular reason

to believe that tailoring has occurred and where the defendant

has no opportunity to rebut the accusation.” Id. On the other

hand, the dissent by Justice Ginsburg would have permitted the

prosecutor during summation to make a specific tailoring argument

that the defendant tailored “specific elements of his testimony

to fit with particular testimony given by other witnesses[.]”

Id.

Justice Ginsburg noted that several state courts had

found it improper for prosecutors to make accusations of

tailoring based solely on “the defendant’s constant attendance at

trial.” Id. at 83 n.5. In sum, according to her, a defendant’s

Sixth Amendment rights are burdened when a prosecutor, during

summation, suggests that the defendant tailored his testimony

without pointing to specific facts indicating tailoring. Id. at

77.

Respondent “urge[d the ICA] to reject the holding of

the Portuondo majority, as its reasoning does not adequately

preserve a criminal defendant’s right to confrontation[.]”

According to Respondent, “[o]ther state courts have addressed

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this issue and concluded that prosecutorial comments made during

closing arguments regarding the presence of criminal defendants

during trial do, in fact, infringe upon a defendant’s right to

confrontation.” (Citing State v. Jones, 580 A.2d 161, 163 (Me.

1990);13 Commonwealth v. Person, 508 N.E.2d 88, 90-92 (Mass.

1987);14 Commonwealth v. Elberry, 645 N.E.2d 41, 42-43 (Mass.

App. Ct.), cert or review denied, 646 N.E.2d 1071 (Mass. 1995);15

State v. Hemingway, 528 A.2d 746, 747-48 (Vt. 1987); State v.

13
In Jones, the prosecutor during closing argument stated that “[the
defendant] had the benefit of knowing what everybody else said before he
testified. What opportunity did that give [the defendant] to testify as he
did?” 580 A.2d at 162 (emphasis added). The Maine Supreme Court held that
the comment infringed on the defendant’s right to confront witnesses and be
present at trial, stating, “A direct comment by the prosecutor that invites
the jury to draw an adverse inference from the defendant’s presence at trial
and his corresponding opportunity to hear all the witnesses testify is error.”
Id. at 163.

14
In Person, the defendant’s attorney, during summation, argued that
there were several deficiencies in the prosecutor’s case. During summation,
the prosecutor questioned whether “it [is] just a little bit odd that after
sitting here for six days and listening to all the testimony[, the defendant]
comes in and gives a completely tailored cover story covering every single
aspect” of the case. 508 N.E.2d at 90. According to Person, the statement
was improper because a defendant is entitled to hear the evidence and confront
the witnesses against him. Id. Although the defense criticized the
prosecution’s case, the prosecutor was not “justified in making th[e]
argument.” Id. at 90-91.

15
In Elberry, the prosecutor in his closing argument stated that
inconsistencies in stories were natural among witnesses who had not lied and
who had not heard one another’s testimony. 645 N.E.2d at 42. The prosecutor
then emphasized,

Did any of the witnesses have the opportunity to see exactly
how every other witness testified in this case and then
tailor their testimony to that evidence? Some of you are
shaking your heads. One person did, one witness did, one
witness saw every other person testify, the defendant
(pointing).

Id. Defense counsel objected, and the court gave a curative instruction. Id.
at 43. The Appeals Court of Massachusetts, relying on Person, held that the
prosecutor’s remark was “out of bounds and should not have been made[,]” but
the curative instruction, to which no party objected, “disposed of the
matter.” Id.

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Johnson, 908 P.2d 900, 903 (Wash. Ct. App. 1996).16 Petitioner

countered that Portuondo was “consistent with Hawai#i case law.”

B.

After the briefs were submitted, this court decided

Mattson, which addressed the application of Portuondo in this

jurisdiction. The Mattson majority essentially adopted the

reasoning of Justice Ginsburg’s dissent in Portuondo and held

that, “it would be improper under article I, section 14 of the

Hawai#i 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.” 122

Hawai#i at 326, 226 P.3d at 496. In line with the Portuondo

dissent, the majority said generic tailoring accusations “cannot

sort those who tailor their testimony from those who do not, much

16
Johnson noted that a prosecutor’s comments that the defendant had
a “unique opportunity to be present at trial and hear all the testimony
against him” impermissibly infringed on the defendant’s Sixth Amendment rights
under the United States Constitution. 908 P.2d at 903. No state
constitutional issues were raised in Johnson. Id. at 902 n.1. “Portuondo
effectively overrule[d] Johnson[.]” State v. Miller, 40 P.3d 692, 693 (Wash.
Ct. App. 2002). However, where tailoring questions were asked during cross
examination, the Washington Supreme Court determined that “suggestions of
tailoring are appropriate during cross-examination[.]” State v. Martin, 252
P.3d 872, 879 (Wash. 2011). The Martin dissent maintained that “all
accusations of tailoring at any stage of the trial, including
cross-examination and summation,” should be prohibited. Id. at 884 (Sanders,
J., dissenting); see id. at 883 (explaining that tailoring arguments “afford
no meaningful protection of a criminal defendant’s constitutional” rights, and
prohibiting them allows the jury to “‘draw its own reasonable inferences based
on the evidence, rather than rely, even in part, on accusations that the
defendant was able to shape his testimony simply because [the defendant] was
present, as he had a right to be, at his own trial[]’” (quoting State v.
Mattson, 122 Hawai#i 312, 343, 226 P.3d 482, 499 (2010) (Acoba, J.,
dissenting, joined by Duffy, J.)). The concurrence “agree[d] with the dissent
that . . . [the Washington Constitution] does not permit the State to suggest
the defendant has tailored his testimony[,]” but agreed with the majority’s
result because the error was harmless. Id. at 880 (Stephens, J., concurring
in part and dissenting in part, joined by Chambers and Fairhurst, JJ.).

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less the guilty from the innocent.” Id. (internal quotation

marks and citation omitted). Moreover, generic tailoring

arguments “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 a true version of the events.” Id.

(emphasis in original).

According to the majority, the prosecutor in Mattson

did not make a generic tailoring argument. In Mattson, two

witnesses testified that the defendant had threatened an

individual with a knife. Id. at 315-17, 226 P.3d at 485-87. A

911 recording of a phone call of one of the witnesses explaining

that the defendant was “pulling a knife” on another person was

“admitted into evidence” and played for the jury at trial. Id.

at 317 n.4, 226 P.3d at 487 n.4. The defendant had previously

told the police that he held a lighter during the incident. Id.

at 320, 226 P.3d at 490. Contrary to the statement to the police

and similar to the witnesses’ testimony, at trial, the defendant

testified that he held an unopened knife during the incident but

had not used it in a threatening manner. Id. at 319-20, 226 P.3d

at 489-90. He also explained that he had “made up” part of the

story he had told the police because he “only wanted to make the

statement that help[ed him].” Id. at 320, 226 P.3d at 490

(brackets in original). During summation, the prosecutor

emphasized that the defendant’s trial testimony contradicted the

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defendant’s prior statement to the police and the testimony of

other witnesses:

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. . . . He sat through
the evidence. There is a 911 tape. [A witness’s]
statement. [Another witness’s] statement. Based on all
that, he is not telling the truth. All of a sudden he
remembered that he grabbed that knife.

Id. (some emphases added, some emphases in original). According

to the Mattson majority, because the prosecutor “identified and

relied upon specific evidence adduced at trial” in addition to

the defendant’s presence when attacking the defendant’s

credibility, the prosecutor did not improperly argue the

defendant “tailored his testimony based solely on his presence at

trial.”17 Id. at 327, 226 P.3d at 497 (emphasis in original).

C.

In a similar vein as the majority, the Mattson dissent

noted that generic comments “debase the ‘truth-seeking function

of the adversary process,’ violate the ‘respect for the

17
The concurrence herein contends that Mattson prohibited only “bare
accusation[s]” or argument in the form of “[h]e was here, therefore he
tailored[.]” Concurring opinion at 17. Respectfully, we disagree with this
narrow characterization of Mattson. Mattson forbade accusing a defendant of
tailoring because his presence was “conduct as consistent with innocence as
with guilt,” and such an argument would not help the jury “in determining
whether a defendant has tailored his testimony or simply related a true
version of the events.” 122 Hawai#i at 326, 226 P.3d at 496. Moreover, the
Mattson majority was “persuaded by the reasoning of the Portuondo dissent[,]”
id., which maintained that a prosecutor may not argue that a defendant’s
testimony, “consistent with [the] other evidence in the case[,]” was due to
his presence, 529 U.S. at 77, because “[t]he implication of th[at] argument
seems to be that the more a defendant’s story hangs together, the more likely
it is that he is lying[,]” id. at 79 n.1, an argument that does not help to
“distinguish the guilty from the innocent[,]” id. at 79. By stating that
generic tailoring only occurs when it is asserted that the defendant tailored
his testimony because “[h]e was here,” the dissent restricts, and unduly
confines, Mattson and the objection to generic tailoring.

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defendant’s individual dignity,’ and ignore ‘the presumption of

innocence that survives until a guilty verdict is returned[.]’”

Id. at 340, 226 P.3d at 510 (Acoba, J., dissenting, joined by

Duffy, J.) (quoting State v. Daniels, 861 A.2d 808, 819 (N.J.

2004) (quoting Portuondo, 529 U.S. at 76 (Stevens, J.,

concurring, joined by Breyer, J.))).18 The dissent explained

that a generic tailoring argument occurs when “a prosecutor

states that the defendant was able to sit through the trial and

hear the testimony of other witnesses, thereby allowing the

defendant the opportunity to shape his or her testimony to fit

that of other witnesses, even when there is no evidence that

defendant has actually done so.” Id. at 336, 226 P.3d at 506.

Thus, while a prosecutor may cast doubt on the substance of a

defendant’s testimony, “where the exercise of constitutional

rights 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.” Id. at

338, 226 P.3d at 508 (quoting Portuondo, 529 U.S. at 77

(Ginsburg, J., dissenting, joined by Souter, J.)).

Hence, generic tailoring comments on summation

“suggesting that a defendant tailored his testimony inverts those

rights, permitting the prosecutor to punish the defendant for

18
The Mattson dissent would have held that “all accusations of
tailoring at any stage of the trial, including cross examination and
summation, impermissibly burden a defendant’s right to be present at trial and
to confront witnesses against him.” 122 Hawai#i at 329, 226 P.3d at 499
(Acoba, J. dissenting, joined by Duffy, J.).

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exercising that which the Constitution guarantees.” Id. at 340,

226 P.3d at 510.19 (internal quotation marks, citation, and

emphasis omitted). Additionally, “[a]lthough the constitutional

right to confront witnesses should be sufficient to justify a

rule barring accusations of tailoring, the additional fact that

Hawai#i Rules of Penal Procedure (HRPP) Rule 43 (2008) mandates

defendants . . . to be present at all stages of the trial further

compels prohibiting such accusations.”20 Id. at 329, 226 P.3d at

499. The Mattson dissent explained that “a specific tailoring

argument is made when the prosecution alludes to facts indicating

that a defendant has tailored specific elements of his testimony

to fit with particular testimony given by other witnesses.” Id.

at 336, 226 P.3d at 506 (internal quotation marks, brackets, and

citation omitted).

In sum, the prosecution should be prohibited from

“referring to the fact that the defendant was in the courtroom or

that he heard the testimony of other witnesses, and was thus able

to tailor his testimony.” Id. at 328, 226 P.3d at 498 (internal

19
With respect to a prosecutor’s specific tailoring remarks during
summation, the Mattson dissent noted that allowing such comments “afford no
meaningful protection of a criminal defendant’s constitutional right to
confrontation.” Id. at 343, 226 P.3d at 513. As it is permissible for a
prosecutor to “state, discuss, and comment on the evidence as well as draw all
reasonable inferences” therefrom, it is unnecessary to allow comment on the
defendant’s trial presence in connection with remarks on the evidence during
summation. Id. at 345, 226 P.3d at 515 (internal quotation marks and citation
omitted).

20
HRPP Rule 43(a) generally provides that in felony cases “[t]he
defendant shall be present at the arraignment, at the time of the plea, at
evidentiary pretrial hearings, at every stage of the trial including the
impaneling of the jury and the return of the verdict, and at the imposition of
sentence, except as otherwise provided by this rule.” (Emphasis added.)

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quotation marks and citation omitted). Consequently, in Mattson,

“the prosecutor’s general statements directly attacking [the

defendant’s] presence at trial, and his concomitant ability

therefore to make his story gibe [sic] wrongly infringed on [the

defendant’s] rights to be present at trial and to testify.” Id.

at 341, 226 P.3d at 511 (internal quotation marks omitted).

III.

Following the rule established in Mattson, the ICA

majority in this case found the prosecutor’s remarks were “a

generic accusation” that Respondent tailored his testimony

because they did not “reference any evidence and relate[d] only

to [Respondent’s] presence in the courtroom.” Walsh, 123 Hawai#i

at 289, 231 P.3d at 1006. According to the ICA majority, the

prosecutor “drew attention to [Respondent’s] presence during

witness testimony and jury voir dire, emphasized that

[Respondent] had heard all of the testimony prior to testifying

himself, and implied that [Respondent] tailored his testimony to

appear more credible.” Id. While the prosecutor did not

explicitly state that Respondent tailored his testimony,

according to the ICA, the “implication of the prosecutor’s

argument . . . was such that the jury was left with the

inescapable conclusion that because [Respondent] exercised his

right to be present during jury voir dire and other witnesses’

testimony, he was tailoring his testimony.” Id. Thus, the ICA

vacated the judgment and remanded the case.

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Although the ICA majority analyzed the prosecutor’s

comments as a whole, the concurrence reasoned that some of the

prosecutor’s comments were proper and some were not. The

concurrence agreed that the prosecutor’s remarks that Respondent

“benefitted from seeing all these witnesses[]” because “[b]efore

he got up on that stand, he saw each and every one” of them, were

improper because they were not “premised on any evidence

presented during trial to support the inference that [Respondent]

had tailored his testimony based on what he had heard.” Id. at

290-91, 231 P.3d at 1007-08 (Fujise, J., concurring).

However, the concurrence maintained the prosecutor made

the “separate point[]” that Respondent, “having heard some of the

jurors state that they took eye contact as indicative of

truthfulness[,] actually took their cue and looked at the jurors

during his testimony.” Id. at 291, 231 P.3d at 1008.21

According to the concurrence, because the “jurors heard the

responses given during voir dire and witnessed [Respondent’s]

21
Respectfully, there is no evidence that Respondent “actually”
“took [the juror(s)] cue,” assuming that there was such a “cue.” 123 Hawai#i
at 291, 231 P.3d at 1008. Nowhere in the record is this matter noted or
discussed. “It is very difficult for an appellate court to review an issue
that is not grounded in the record.” United States v. Schuler, 813 F.2d 978,
980 (9th Cir. 1987). Thus, Schuler aptly advised, “[i]f counsel considers
such an [action] to be significant, he or she should ask the trial court to
have it included in the record.” Id.
The principle that appellate review requires a complete record of
the events relied upon is salutary and well-established, irrespective of
whether the demeanor challenged on appeal was that of a witness on the stand
or that of a witness off the stand, or whether the case was a criminal or
civil one. Consequently, if a litigator seeks appellate review based on
particular “demeanor” that occurred during trial, when there is no record that
such occurred, it is not unexpected that it would be “very difficult for an
appellate court to review an issue that is not grounded in the record[.]”
Schuler, 813 F.2d at 980. In that circumstance, there can be no reasonable
expectation that the occurrence itself will be unquestionably accepted for
purposes of appellate review.

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trial testimony[,]” “they were in the best position to judge

whether [Respondent] tailored his comportment to their

comments[.]” Id. However, the concurrence apparently agreed the

case should be remanded for a new trial based on the prosecutor’s

remarks referring to Respondent’s “benefit” of being present

during the testimony of other witnesses.

IV.

Petitioner applied for certiorari, asking
[w]hether the ICA gravely erred when it held, that the
prosecutor’s comments during closing argument, implying that
[Respondent] tailored his testimony to be more credible
after being present at jury voir dire and during other
witnesses’ testimony, constituted plain error and thus,
violated [Respondent’s] State of Hawai#i Constitutional
right to be present during trial.

V.

In support of the question presented in its

Application, Petitioner argues that (1) the alleged improper

comments did not constitute plain error affecting Respondent’s

substantial rights; (2) the prosecutor “did not rely solely on

[Respondent’s] exercise of his right to be present at trial[,]”

but referred to “specific evidence adduced at trial” and a jury

instruction regarding the credibility of witnesses, and,

therefore, the statements were permissible under Mattson; (3) the

prosecutor’s comments that Respondent tailored his demeanor based

on juror answers during voir dire were not improper because they

were an attempt to discredit the manner in which Respondent

testified; (4) the jury did not dismiss Respondent’s testimony

based on an implication of tailoring; and (5) “although the issue

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in this case was the credibility of the witnesses, the evidence

against [Respondent] indicating that [Respondent] recklessly

caused substantial bodily injury to [Kapena] was overwhelming.”

VI.

A.

Petitioner’s first argument that the ICA gravely erred

by reviewing the statements under plain error is incorrect

because the statements affected Respondent’s constitutional

rights to confront witnesses, to be present at trial, to testify,

and to a fair trial. See State v. Miller, 122 Hawai#i 92, 100,

223 P.3d 157, 165 (2010) (noting that, if error in the

proceedings adversely affected the substantial rights of the

defendant, the error is plain error). It is established that,

under the plain error doctrine, “where plain error has been

committed and substantial rights have been affected thereby, the

error may be noticed even though it was not brought to the

attention of the trial court.” Id. (internal quotation marks and

citation omitted); see HRPP Rule 52(b) (2008) (“Plain errors or

defects affecting substantial rights may be noticed although they

were not brought to the attention of the court.”); State v.

Wakisaka, 102 Hawai#i 504, 513, 78 P.3d 317, 326 (2003) (“If

defense counsel does not object at trial to prosecutorial

misconduct,” “[w]e may recognize plain error when the error

committed affects substantial rights of the defendant.”)

(Internal quotation marks and citations omitted.). Moreover,

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this court will apply the plain error standard of review “to

correct errors which seriously affect the fairness, integrity, or

public reputation of judicial proceedings, to serve the ends of

justice, and to prevent the denial of fundamental rights.” State

v. Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642 (1998).

“The purpose of plain error is to allow the court to

vindicate substantial rights and to uphold the integrity of the

judicial system, regardless of the venue in which the appellant

failed to present the argument.” Miller, 122 Hawai#i at 119-20,

223 P.3d at 184-85. This court’s ability to review for plain

error stems from its inherent power to recognize such error sua

sponte. Id. at 122 n.31, 223 P.3d at 187 n.31. Of course, we

can employ the power to review an error that allegedly affects

substantial rights, but upon such review conclude that no error

had occurred. Id.

B.

In holding that it is improper for the prosecution “to

make generic” tailoring accusations during closing argument, 122

Hawai#i at 326, 226 P.3d at 496, Mattson emphasized that

“upholding a defendant’s rights under the confrontation clause is

essential to providing a defendant with a fair trial[]” and that

“a prosecutor’s comments may not infringe on a defendant’s

constitutional rights[,]” id. at 325, 226 P.3d at 495 (emphasis

in original). The right of confrontation is a substantial right.

See State v. Kassebeer, 118 Hawai#i 493, 516, 193 P.3d 409, 432

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(2008) (holding that prohibiting a complainant from answering a

defendant’s question “inhibited [the defendant] from confronting

the complainant” and therefore “adversely affected his

substantial right to confrontation[]”). The “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 a jury, and guaranteeing the right to

face-to-face confrontation.” Mattson, 122 Hawai#i at 325, 226

P.3d at 594 (quoting State v. Apilando, 79 Hawai#i 128, 132, 900

P.2d 135, 139 (1995) (brackets in original)) (other citation

omitted).

Generic accusations of tailoring also “discourage a

defendant from exercising his constitutional right to testify[22]

on his own behalf.” Id. at 326, 226 P.3d at 496. This court,

based on an independent review of the record, has held that

“[b]ecause the circuit court’s error infringed upon [the

defendant’s] constitutional right to testify, we address it as

22
The right of a defendant to testify is guaranteed by sections 5,
14, and 10 of article I of the Hawai#i Constitution. Tachibana v. State, 79
Hawai#i 226, 231, 900 P.2d 1293, 1298 (1995). The right is “essential to due
process of law” as guaranteed under section 5 of article 1. Id. (internal
citation omitted). The right to testify is also guaranteed through the
compulsory process clause of section 14, which states in pertinent part that
the accused shall “have compulsory process for obtaining witnesses in the
accused’s favor[.]” Haw. Const. art. 1, § 14. “Logically included in the
accused's right to call witnesses . . . is a right to testify himself, should
he decide it is in his favor to do so[,]” since “the most important witness
for the defense in many criminal cases is the defendant himself.” Rock v.
Arkansas, 483 U.S. 44, 52 (1987). The opportunity to testify is a necessary
corollary to the guarantee, under section 10, against compelled testimony
since every criminal defendant is privileged to testify in his or her defense.
Tachibana, 79 Hawai#i at 231, 900 P.2d at 1298.

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plain error.” State v. Staley, 91 Hawai#i 275, 286, 982 P.2d

904, 915 (1999); see also Wakisaka, 102 Hawai#i at 516, 78 P.3d

at 329 (holding that prosecutor’s comment on the defendant’s

failure to testify constituted plain error affecting the

defendant's substantial rights).

Additionally, “[i]t is well settled that an accused has

a fundamental right to be present at each critical stage of the

criminal proceeding.” Onaka v. Onaka, 112 Hawai#i 374, 380, 146

P.3d 89, 95 (2006) (citations omitted). “The right of a criminal

defendant to be present at his trial is of no less than

constitutional magnitude, and is founded upon the Confrontation

and Due Process clauses of both the United States and Hawai#i

Constitutions.” State v. Okumura, 58 Haw. 425, 427, 570 P.2d

848, 851 (1977). It is a right of “fundamental importance[.]”

State v. Caraballo, 62 Haw. 309, 320, 615 P.2d 91, 99 (1980).23

23
Other jurisdictions have held that the right to be present is a
fundamental or substantial right. See Rushen v. Spain, 464 U.S. 114, 117
(1983) (stating that the “right to personal presence at all critical stages of
the trial” is a fundamental right of a criminal defendant); see also People v.
Wilkinson, 110 Cal. Rptr. 3d 776, 781 (Cal. Ct. App. 2010) (noting that an
attorney cannot “authorize relinquishment of substantial rights, such as the
right to be present, without the client’s consent”); State v. Calderon, 13
P.3d 871, 879 (Kan. 2000) (articulating that the “right to be present at one’s
criminal trial is a fundamental right[]”); People v. Mallory, 365 N.W.2d 673,
681 n.10, 682 (Mich. 1984) (explaining that a defendant has a right to be
present during any stage of trial where his substantial rights might be
adversely affected); State v. Finnegan, 784 N.W.2d 243, 255 (Minn. 2010)
(defining the right to be present at trial as a fundamental right); State v.
Muse, 967 S.W.2d 764, 766 (Tenn. 1998) (“The right of an accused to be present
at his own trial is a fundamental trial right.”); but see People v. McLaurin,
922 N.E.2d 344, 352 (Ill. 2009) (noting that the right to be present at trial
“is not itself a substantial right under the Illinois Constitution[,]” but a
“lesser right[,] the observance of which is a means to securing the
substantial rights of a defendant”) (internal quotation marks and citations
omitted).

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Finally, the right to a fair trial is a substantial

right for which this court has reviewed alleged violations of

plain error. State v. Rapoza, 95 Hawai#i 321, 326, 22 P.3d 968,

973 (2001) (noting that an erroneous jury instruction that has

affected the “defendant’s substantial right[] -- to wit, his or

her constitutional right[] to a trial by an impartial jury . . .

-- may be recognized as plain error”); State v. Marsh, 68 Haw.

659, 661, 728 P.2d 1301, 1303 (1986) (concluding that the

prosecutor’s conduct impacted the defendant’s “right to a fair

trial as to amount to ‘plain error’”). Because fundamental

rights are infringed when generic tailoring arguments are made,

generic tailoring arguments are subject to plain error review.

C.

In support of its first argument, Petitioner maintains

that the prosecutor’s statements did not “expressly” accuse

Respondent of tailoring, and, therefore, the ICA extended Mattson

to “tailoring by implication.” But there are no specific words

or phrases that must be employed to accuse a defendant of

tailoring. In Mattson, this court found the prosecutor “made an

accusation that [the defendant] 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.’” 122 Hawai#i at 327,

226 P.3d at 497 (brackets in original). Courts have found

generic tailoring arguments based on a wide range of comments,

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not all expressly arguing that the defendant engaged in

tailoring.

In Jones, 580 A.2d at 162, the prosecutor stated:
I suggest when you evaluate the credibility of these
witnesses and their testimony you also consider something
very important; the only witness who testified in this case
who heard everybody else's testimony before he gave his
reason was the defendant. [The defendant] had the benefit
of knowing what everybody else said before he testified.
What opportunity did that give [the defendant] to testify as
he did?

Because these comments were “tied only to the defendant's

presence in the courtroom and not to his actual testimony[,]”

Portuondo, 529 U.S. at 77 (Ginsburg, J., dissenting), they

invited “the jury to draw an adverse inference from the

defendant’s presence at trial and his corresponding opportunity

to hear all the witnesses testify[,]” Jones, 580 A.2d at 163.

In Hart v. United States, 538 A.2d 1146, 1149 (D.C.C.A.

1988), the prosecutor during rebuttal “suggested that [the

defendant’s] testimony was fabricated[]” by stating:
Does that appear ridiculous? . . . [T]he most amazing thing
happened . . . during the course of [the defendant’s]
testimony. He started rapping and telling the story . . .
just popping into his head as he was going along. . . . He
sits there and then he says the most incredible thing. . . .
Does that make any sense? . . . Does that sound like a
person telling the truth? Gets on the stand and tells the
truth? You will have to decide that. . . . Would you bank
on that story?

According to Hart, “[t]he likely inference from the prosecutor's

remarks in [that] case was that he believed [] [the defendant’s]

testimony was fabricated[,]” which was “especially troubling”

because of the prosecutor’s “reference to [the defendant’s]

listening to other testimony at trial.” Id.

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Similar to Jones and Hart, here, the prosecutor accused

Respondent of tailoring his testimony when, in discussing

credibility, she argued that Respondent “benefitted” from hearing

the testimony of the other witnesses before he testified.

Manifestly the prosecutor’s remarks drew “the jury’s attention to

[Respondent’s] presence at trial and his resultant opportunity to

tailor his testimony[,]” Martinez v. People, 244 P.3d 135, 141

(Colo. 2010), and submitted to the jurors that Respondent was

less believable as a result. As in Portuondo, the prosecutor

encouraged the jury to draw from the “fact” of the defendant’s

opportunity to testify, the “inference” that he had actually

tailored his testimony. 529 U.S. at 86 n.6 (Ginsburg, J.,

dissenting, joined by Souter, J.) (emphases in original). The

prosecutor’s comments in the instant case that Respondent

“benefitted” from his trial presence are nearly identical to the

comments that were found by the Portuondo dissent to be

unconstitutional and improper. The prosecutor in Portuondo

argued that “the defendant has a benefit and the benefit that he

has[] [is that] he gets to sit here and listen to the testimony

of all the other witnesses before he testifies.” Id. at 64

(emphases added).

It also cannot be disputed reasonably, as the ICA

majority said, that “the prosecutor’s argument[] . . . was such

that the jury was left with the inescapable conclusion that

because [Respondent] exercised his right to be present during

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. . . other witnesses’ testimony, he was tailoring his

testimony.” Walsh, 123 Hawai#i at 289, 231 P.3d at 1006. The

contention that Respondent benefitted from listening to all the

other witnesses before testifying plainly conveyed to the jury

that Respondent’s testimony therefore should be discredited.24

Inasmuch as the comments that Respondent had benefitted were

based “solely” on Respondent’s presence at trial, they were

generic tailoring comments prohibited by Mattson.25

VII.

Petitioner’s second argument contends the prosecutor

“did not rely solely on [Respondent’s] exercise of his right to

be present at trial[,]” but (1) “included references to specific

evidence adduced at trial,” when she “immediately argued why the

jury should believe [Kapena and Kepa] over [Respondent,]”

subsequently argued that Cooprider was credible, and tried to

“discredit” Respondent, and (2) reminded the jury of the standard

jury instruction on evaluating witnesses.

24
Hence, under the circumstances, it was not necessary that the
prosecution also argue that Respondent was able to think about “what [he was]
going to say” and how he would “fit [his testimony] into the evidence[,]”
Portuondo, 529 U.S. at 64 (Ginsburg, J., dissenting, joined by Souter, J.), or
that Respondent had to make his story “gibe,” [sic] as in Mattson, 122 Hawai#i
at 327, 226 P.3d at 497.

25
Although the concurrence agrees that the prosecution’s statement
regarding Respondent’s “benefit[]” is improper generic tailoring under
Mattson, it maintains that such a conclusion is “dispositive,” and, therefore,
the remainder of the prosecutor’s closing argument need not be discussed.
Concurring opinion at 3. However, as shown in part VII, the prosecutor’s
entire closing argument, including the prosecution’s argument that Respondent
maintained eye contact with jurors because he heard during voir dire that such
conduct is indicative of credibility, is part and parcel of the prosecutor’s
argument that Respondent benefitted from being at trial. Moreover, inasmuch
as the case is remanded for retrial, this issue must be addressed to avoid a
similar argument being raised at the new trial.

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A.

The prosecutor’s closing argument built upon the

contention that Respondent was less credible because of his

attendance. Immediately after stating that Respondent

“benefitted” from his presence by hearing the witnesses, the

prosecutor continued, “[w]hat’s important about that[, i.e.,

Respondent’s presence,] is . . . [that] he heard [] voir-dir[e]”

where allegedly it was mentioned that a witness appears credible

by maintaining eye contact with the jurors. According to the

prosecutor, although Respondent supposedly “look[ed] each one of

[the members of the jury] in the eye[,]” and appeared

“sincere[,]” Kepa and Kapena, who had “never testified before[]”

and were “nervous” and “inexperienced testifiers,” actually “told

it like it was.” The prosecutor differentiated Respondent from

Kepa and Kapena, suggesting that Respondent may have appeared

“sincere” because of information gained through other witnesses’

testimony and voir dire.26 By contrasting Respondent from other

26
The concurrence characterizes the voir dire argument as made “in
the context of a larger argument regarding the credibility of the witnesses,
and in particular, their demeanor while testifying.” Concurring opinion at
3-4. According to the concurrence, the prosecutor “sought to dispel the
notion that the jurors should accordingly find [Respondent’s] testimony
credible, by (1) suggesting that [Respondent] may have testified in that
manner in order to appear sincere, and (2) comparing [Respondent’s] demeanor
on the stand to that of the State’s witnesses.” Id. at 4. But, according to
the prosecutor, Respondent purportedly adopted a sincere “manner” because he
was present when jurors identified such a “manner” as credible. Likewise, the
“comparison” that Respondent exhibited a false appearance of sincerity because
he had been present throughout the proceedings, whereas Kapena and Kepa
appeared nervous due to the fact that they had never testified before and had
not been present, improperly made “[Respondent’s] presence at trial an
automatic burden on his credibility.” Mattson, 122 Hawai#i at 323, 226 P.3d
at 493 (internal quotation marks and citation omitted). Thus, it is plain
that the voir dire reference improperly relies on Respondent’s presence.

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witnesses because of his trial presence, the prosecutor assailed

Respondent’s exercise of his constitutional rights, and

“disregard[ed] the truth-seeking purpose of a trial” inasmuch as

the “generic accusations of tailoring d[id] not aid the jury in

any way in determining whether [Respondent] . . . tailored his

testimony or simply related a true version of the events.”27

Mattson, 122 Hawai#i at 326, 226 P.3d at 496. Respondent’s

“version of the events,” id., was automatically discredited to

the extent that it was “tied only to [his] presence” in the

courtroom[,] Portuondo, 529 U.S. at 77 (Ginsburg, J., dissenting,

joined by Souter, J.).

B.

Immediately after arguing that Kapena and Kepa were

believable whereas Respondent was not, the prosecutor discussed

the standard jury instruction on witness credibility, stating,

“But the fact of the matter is that [the jury may consider] the

27
The concurrence maintains that the “truth-seeking function[]” of
the jury was furthered by “focusing the jury’s attention on . . .
[Respondent’s] demeanor[,]” and providing an explanation for Respondent’s
demeanor “based on more than” his presence throughout trial. Concurring
opinion at 5. Respectfully, the concurrence provides no authority for its
statement. Insofar as the prosecutor’s explanation for Respondent’s demeanor
was based purely on Respondent’s attendance at trial, it is difficult to
discern how that function is furthered. To reiterate, “[a] trial ideally is a
search for the truth,” but that search is not advanced when a prosecutor
accuses a defendant during closing argument of tailoring his testimony based
on his presence, inasmuch as a jury is not aided thereby in sorting the
“guilty from the innocent[,]” or in evaluating the “defendant’s
credibility[.]” Portuondo, 529 U.S. at 77 (Ginsburg, J., dissenting, joined
by Souter, J.). Additionally, in the instant case, the jury was not aided in
determining whether Respondent was guilty or innocent, and could not “measure
[Respondent’s] credibility by evaluating . . . [his] response to the
accusation [of tailoring], for the broadside [was] fired after the defense
ha[d] submitted its case[,]” inasmuch as the statement came during closing
arguments. Id. at 78 (Ginsburg, J., dissenting, joined by Souter, J.) (noting
that statements made during summation were improper because the defendant had
submitted his case and could not respond).

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credibility of witnesses, [taking] into consideration all those

items such as their appearance and demeanor, their manner of

testifying, . . . [and] the opportunity for acquiring

information[.]”28 The prosecutor then linked the jury

instruction with the previous argument that Respondent lacked

credibility because he was present during voir dire by stating,

“But don’t get fooled into a position where because somebody can

look you in the eye, they must be telling the truth. If you know

how to look somebody in the eye, you can still lie.”29

28
Hawai#i Jury Instructions Criminal (HAWJIC) § 3.09 states as
follows:

It is your exclusive right to determine whether and to
what extent a witness should be believed and to give weight
to his or her testimony accordingly. In evaluating the
weight and credibility of a witness’s testimony, you may
consider the witness’s appearance and demeanor; the
witness’s manner of testifying; the witness’s intelligence;
the witness’s candor or frankness, or lack thereof; the
witness’s interest, if any, in the result of this case; the
witness’s relation, if any, to a party; the witness’s
temper, feeling, or bias, if any has been shown; the
witness’s means and opportunity of acquiring information;
the probability or improbability of the witness’s testimony;
the extent to which the witness is supported or contradicted
by other evidence; the extent to which the witness has made
contradictory statements, whether in trial or at other
times; and all other circumstances surrounding the witness
and bearing upon his credibility.
Inconsistencies or discrepancies in the testimony of a
witness, or between the testimony of different witnesses,
may or may not cause you to discredit such testimony. In
weighing the effect of inconsistencies or discrepancies,
whether they occur within one witness’s testimony or as
between different witnesses, consider whether they concern
matters of importance or only matters of unimportant detail,
and whether they result from innocent error or deliberate
falsehood.

(Emphasis added.)

29
The prosecutor’s reference to the jury instruction did not
mitigate any impropriety. The directive in the instruction that the jury can
consider the demeanor and appearance of witnesses was undermined by the
prosecutor’s following warning that the jury should not “get fooled into a
position where because somebody can look you in the eye, they must be telling
(continued...)

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In doing so, the prosecutor told the jury that even

though Respondent may have appeared truthful, Respondent should

not be believed because he had employed knowledge about the jury,

that he had gained during voir dire. In essence, the prosecutor

told the jury to “assess [Respondent’s] credibility in [the]

light of this improper comment[,]” Hemingway, 528 A.2d at 748,

thereby infringing on Respondent’s exercise of his right to

testify, and “detract[ing] from, rather than ensur[ing,

Respondent’s] ability to obtain a fair judgment[,]” id.

Following that assertion, the prosecutor’s comment,

“But John Cooprider tells it like it is[,]” again linked

Respondent’s presence during voir dire and the testimony of other

witnesses with Respondent’s lack of credibility, thereby

“bolstering” Cooprider’s testimony. The prosecution’s assertion

that Respondent’s credibility30 must be viewed in the context of

his trial presence permeated her closing argument. The comments

thus “transform[ed Respondent’s] presence at trial from a

29
(...continued)
the truth.” The jury instruction served only as a platform to state that
Respondent’s demeanor was feigned based on information received during voir
dire. Thus, the prejudicial impact of the argument was exacerbated, not
mitigated, by the reference to the jury instruction.

30
It is established that a prosecutor may attack the credibility of
a defendant who chooses to testify. Apilando, 79 Hawai#i at 149, 900 P.2d at
142 (“This court has held that, when a defendant takes the stand to testify,
his or her credibility can be tested in the same manner as any other
witness.”). In that regard, “[t]he credibility of a witness may be attacked
by evidence of bias, interest, or motive.” Hawai#i Rules of Evidence Rule
609.1(a) (1993). Thus, a prosecutor may challenge the defendant’s credibility
by commenting on evidence of bias, interest, or motive. But here, the
prosecutor suggested that Respondent was not believable due to his attendance
at voir dire and the testimony of other witnesses at trial. Remarking that
Respondent has “benefitted” from being at trial, including voir dire, is not a
comment on any evidence of bias, interest, or motive.

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[constitutional] right into an automatic burden on his

credibility[.]” Portuondo, 529 U.S. at 76 (Ginsburg, J.,

dissenting, joined by Souter, J.).31

VIII.

A.

Petitioner’s third argument maintains the prosecutor’s

argument that Respondent “tailored” his demeanor based on juror

answers during voir dire was not improper. In this regard, the

ICA concurrence concluded that the prosecutor’s argument was

proper because it “was not merely a generic accusation of

tailoring, but was based on [Respondent’s] actions after he

witnessed the juror’s comments.” Walsh, 123 Hawai#i at 291, 231

P.3d at 1008 (Fujise, J., concurring) (emphasis added).

Ordinarily, juror statements during voir dire are not

evidence. See State v. Ashley, 22 So. 3d 1045, 1059 (La. Ct.

App. 2009) (“Jury voir dire is not evidence.”); see also United

States v. Khoury, 901 F.2d 948, 955 (11th Cir. 1990) (the

district court instructed the jurors “that the statements [by one

juror] made during voir dire were not evidence and had nothing to

31
According to the concurrence, Respondent could “rebut
[Petitioner’s] argument during his own closing, by suggesting that his
demeanor was in fact sincere, by contrasting it to the demeanor of other
witnesses, or otherwise[,]” concurring opinion at 5, and did so, id. at 19.
But such a response would only confirm the legitimacy of the generic tailoring
argument by Petitioner. The inference that Respondent was less credible as a
result of his presence is the very inference the Portuondo dissent and Mattson
condemned. Although Respondent could contrast Respondent’s demeanor to that
of other witnesses, doing so would do nothing to counter the inference planted
by the prosecution that Respondent’s demeanor was shaped because of his
presence, whereas other witnesses appeared honest because they had not been in
attendance throughout trial.

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do with the case[]”); Shaw v. State, No. CR 05-235, 2005 WL

1533548, at *1 (Ark. June 30, 2005) (“Matters discussed during

voir dire are not considered evidence.”); Estate of Burton v.

Trover Clinic Found., Inc., No. 2009-CA-001595, 2010 WL 6816338,

at *3 (Ky. Ct. App. June 10, 2010) (“[I]n light of the

instructions given by the court that the jury was to consider the

evidence presented at trial, and . . . that statements made

during opening, arguments during closing, and the questions

presented in voir dire are not evidence to be considered by the

jury[,]” a party’s concerns “over what thoughts might be raised

in the minds of the jury by . . . questions on voir dire are

without sound basis[.]”); Gillespie v. Wilkinson, No. 08-1675,

2010 WL 5373931, at *4 n.19 (E.D. La. Nov. 22, 2010) (stating

that trial judge explained to the potential jurors that the “voir

dire process was not evidence in any way”); Francis v. Miller,

No. 07-0140-CV-W-ODS, 2007 WL 4178609, at *6 (W.D. Mo. Nov. 19,

2007) (“[Q]uestions asked during voir dire are not evidence[.]”);

Brown v. State, No. 09-09-00137-CR, 2010 WL 3041317, at *5 (Tex.

Ct. App. Aug. 4, 2010) (noting that, a potential juror “indicated

he understood that what he heard during voir dire was not

evidence[ inasmuch as] no evidence had been presented yet[]”);

cf. HAWJIC 3.07 (“[T]here are two types of evidence -- direct

evidence, such as the testimony of witnesses who assert actual

knowledge of a fact, and circumstantial evidence, which permits a

reasonable inference from the existence of another fact.”);

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HAWJIC 1.01 (“After [the jury has] heard all the evidence in this

case and the arguments of counsel, and have received written

instructions of the court as to the law that applies[,]” the jury

has the duty of determining guilt or innocence and its “decision

must be based solely on the evidence . . . receive[d] in this

room and the court’s instructions.”); HAWJIC 1.02A (noting that

the instruction regarding note taking must be given “prior to

evidence being presented”); HAWJIC 3.03 (directing the jury to

“consider only the evidence which has been presented,” “such

inferences therefrom as may be justified by reason and common

sense[,]” but emphasizing that “[s]tatements or remarks made by

counsel are not evidence[,]” and the jury “should consider their

arguments” but “are not bound by their recollections or

interpretations of the evidence[]”). Thus, if Petitioner sought

to impeach Respondent through the use of voir dire comments, it

should have proffered the comments into evidence.

As noted before, there is no record of the voir dire of

the venire herein.32 Accordingly, there is no verification of

32
The concurrence maintains that Respondent had the responsibility
of requesting a transcript of voir dire. Concurring opinion at 4 n.1 (citing
Hawai#i Rules of Appellate Procedure (HRAP) Rule 10(b)(1)(A)). Respectfully,
first, the purported statements of potential jurors were not offered in
evidence but were, nonetheless, relied on by the prosecution to challenge
Respondent’s truthfulness. In that instance the prosecutor incorrectly sought
to impeach Petitioner based on statements not in evidence.
Second, the voir dire transcript was unnecessary for Respondent’s
argument. HRAP 10(b)(1)(A) provides that an appellant, here, Respondent, must
“request . . . a [] transcript of such parts of the proceedings as the
appellant [(Respondent)] deems necessary that are not already on file.”
(Emphasis added.) In the instant case, Petitioner argued on appeal that the
ICA should disregard Respondent’s argument concerning voir dire inasmuch as
Respondent had not filed a transcript of the voir dire. However, Respondent
did not deem the transcript of voir dire “necessary,” arguing before the ICA
(continued...)

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what was said by potential jurors with respect to eye contact.

Inasmuch as the venire’s comments were not in evidence, the

prosecutor impermissibly commented on matters outside the

evidence. A prosecutor is allowed to “state, discuss, and

comment on the evidence as well as to draw all reasonable

inferences from the evidence.” State v. Clark, 83 Hawai#i 289,

304, 926 P.2d 194, 209 (1996) (emphasis added); see State v.

Mainaaupo, 117 Hawai#i 235, 253, 178 P.3d 1, 19 (2008) (“Although

a prosecutor has wide latitude in commenting on the evidence

32
(...continued)
that the juror statements were not evidence and the prosecutor’s comments on
Respondent’s ability “to listen to the jurors[]” “did not connect any of its
accusations to specific evidence of tailoring at trial[,]” but instead, made a
general accusation “that relied on innuendo rather than evidentiary support.”
Respondent maintained that “the substantive content of voir dire
is entirely irrelevant” inasmuch as the voir dire transcript would “either
support or contradict the prosecutor’s recollection of the events,” which, in
either event, “would not affect the validity of [Respondent’s] arguments.”
According to the concurrence, Respondent took the “position[]” that he did not
dispute the prosecutor’s description of voir dire, a position “contrary” to
this opinion’s assertion that there was no “verification” of what was said
during voir dire. Contrary to the concurrence’s assertion, Respondent’s
position was not that he “verif[ied,]” concurring opinion at 4 n.1, that the
prosecution’s characterization of voir dire was correct, but that he deemed
voir dire to be entirely irrelevant, irrespective of whether the transcript
was consistent with the prosecutor’s statement, a position that is not
“contrary” to the statement that there is no verification of what was said.
The ICA majority agreed with Respondent, determining that it was “not the jury
voir dire itself, but the prosecutor’s comment during closing argument
regarding [Respondent’s] right to witness jury voir dire[]” that was relevant,
and therefore, the record of jury voir dire was not necessary. Walsh, 123
Hawai#i at 288 n.2, 231 P.3d at 1005 n.2.
Finally, the concurrence quotes from Ek v. Boggs, 102 Hawai#i 289,
292 n.3, 75 P.3d 1180, 1183 n.3 (2003), a civil case where this court declined
to address the petitioner-appellant’s contention that a circuit court’s
“prefiling order” requiring the petitioner-appellant to obtain court approval
before filing future pleadings was unsupported by the evidence. Concurring
opinion at 4 n.1. This court merely reiterated that it would not address that
argument, 102 Hawai#i at 292 n.3, 75 P.3d at 1183 n.3, inasmuch as petitioner-
appellant failed to include “a transcript” of the evidentiary hearing where
“all evidence relevant” to the prefiling order was proffered, HRAP Rule
10(b)(3). In the instant case, Respondent was only required to designate
parts of the transcript that were “necessary” to his “point of appeal” before
the ICA, HRAP 10(b)(1)(A); a point that did not require a transcript of the
voir dire. See Walsh, 123 Hawai#i at 288 n.2, 231 P.3d at 1005 n.2.

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during closing argument, it is not enough that . . . his comments

are based on testimony ‘in evidence’; his comments must also be

‘legitimate.’”) (Internal citation omitted.). A prosecutor’s

comment on matters “outside the evidence” is improper. State v.

Tuua, 125 Hawai#i 10, 14, 250 P.3d 273, 277 (2011) (holding that,

the prosecutor’s remarks, hypothesizing on the consequences of

the verdict, were improper because they commented on matters

outside the evidence adduced at trial). Here, the prosecutor

discussed statements by potential members of the jury elicited

during voir dire that she did not offer in evidence and, thus,

did not permissibly “state, discuss, and comment” on what was in

evidence. Clark, 83 Hawai#i at 304, 926 P.2d at 209.

A defendant’s right to be present during voir dire is

analogous to a defendant’s right to be present during testimony

of witnesses, and, thus, a defendant’s mere presence during voir

dire cannot be used against the defendant to attack his

credibility. Cf. Mattson, 122 Hawai#i at 314, 226 P.3d at 484

(noting that it is improper to allow a defendant’s presence at

trial to be used as an attack on his credibility). Mattson

allows a prosecutor to comment on a defendant’s presence in

connection with “specific evidence”33 that the defendant tailored

33
The concurrence argues that Mattson did not state that only
evidence “which is noted in the record” can be used to make a proper tailoring
argument, and therefore, it is proper to refer to a defendant’s demeanor or
jury statements, even if they are not in the record. Concurring opinion at 13
n.4 (emphasis omitted). However, in Mattson, the “specific evidence” that was
“adduced at trial” was undeniably in the record. Mattson, 122 Hawai#i at 314,
226 P.3d at 484; see id. at 314, 317 n.4, 320, 226 P.3d at 314, 487 n.4., 490
(noting that the testimony of the witnesses was “evidence adduced at trial”;
(continued...)

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his testimony to the evidence. Id. at 327, 226 P.3d at 497. In

this case, the prosecutor argued that Respondent shaped his

demeanor to appear truthful to the jury, based on statements made

by potential jurors regarding credibility.34 However, inasmuch

as the statements were not in evidence, they could not be relied

on as “specific evidence”35 to support the contention that the

defendant engaged in tailoring.36 As with respect to testimony,

33
(...continued)
stating that the 911 tape was “admitted into evidence, [and] was played for
the jury at trial, but was not simultaneously transcribed into the record”;
and explaining that the prosecutor argued that the defendant sat “through the
evidence”). Respectfully, if evidence of a specific nature is not in the
record, it would be impossible for an appellate court to review whether there
was specific “evidence” of tailoring.

34
With all due respect, the concurrence’s argument that the voir
dire remark in the instant case is “similar” to the argument that was
permitted in Mattson is incorrect. Concurring opinion at 19. To reiterate,
the Mattson prosecutor referred to several items of “specific evidence,” in
arguing that the defendant tailored his testimony to the evidence presented.
122 Hawai#i at 327, 226 P.3d at 497. Contrastingly, the prosecutor herein did
not refer to any evidence suggesting that Respondent actually shaped his
demeanor to conform to supposed juror statements, but only referred to his
presence during voir dire as being the reason for the alleged tailoring.

35
The concurrence agrees that the voir dire statements are not in
evidence, concurring opinion at 13, but maintains that in the instant case the
statements regarding eye contact are not a “type” of information that needed
to be entered into evidence insofar as they “derive[] from common knowledge
and experience[,]” to which the prosecutor can “refer” in summation, id. at
15-17. With all due respect, eye contact alone as a measure of credibility is
not at issue in this case. What is at issue is the prosecutor’s argument that
Respondent lacked credibility because his allegedly credible demeanor was
derived from his presence at trial during which he supposedly heard jurors
refer to credibility traits and had mimicked those traits. In that regard,
the prosecutor employed voir dire statements regarding eye contact as evidence
that Respondent had an advantage that he gained solely from his presence. The
prosecutor’s attack on Respondent’s credibility due to his presence is at
issue, not any “common knowledge” of the jurors. Additionally, Mattson
requires that, in seeking to attack a defendant’s credibility based on his
presence during voir dire, a prosecutor must put voir dire statements in
evidence, insofar as a prosecutor must refer to specific “evidence”, i.e.,
voir dire statements, indicating a defendant engaged in tailoring to make a
tailoring argument. 122 Hawai#i at 327, 226 P.3d at 497.

36
The concurrence states that a defendant’s demeanor on the stand is
“information which both the jury and counsel were able to observe at trial and
which the jury can appropriately consider as evidence in its deliberations[,]”
Concurring opinion at 7 (emphasis added), and therefore is not an improper
(continued...)

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a generic tailoring argument is objectionable with respect to

voir dire comments by the venire because there is “no evidence

that [the] defendant ha[d] actually” changed his demeanor in

response to such supposed comments. Mattson, 122 Hawai#i at 336,

226 P.3d at 506 (Acoba, J., dissenting, joined by Duffy, J.).

Significantly, there is nothing in the record with

respect to Respondent’s demeanor during his testimony, or any

confirmation that Respondent looked the jurors “in the eye” or,

if he did, the nature of the gaze. But more to the point, the

“action” of looking at the jury when questioned on the witness

stand in and of itself is not an unnatural or extraordinary act

and, thus, is “‘conduct as consistent with innocence as with

guilt[.]’” Mattson, 122 Hawai#i at 326, 226 P.3d at 496 (quoting

Portuondo, 529 U.S. at 79 (Ginsburg, J., dissenting, joined by

Souter, J.)). To reiterate, “allowing a prosecutor . . . to

invite the jury to convict on the basis of conduct as consistent

with innocence as with guilt,” “would not only be improper, but

would also disregard the truth-seeking purpose of trial[.]” Id.

(internal quotation marks and citation omitted).37

36
(...continued)
subject of comment, id. at 8-9 (citing many cases for the proposition that a
witness’ testimonial demeanor is a type of evidence subject to proper
comment). Of course, generally, comment on testimonial demeanor is entirely
proper. See infra note 39.
However, an explanation of the defendant’s demeanor simply tied to
his observations at voir dire is not a proper ground upon which to attack
credibility. The concurrence fails to cite any case that allows a prosecutor
to argue that a defendant tailored his demeanor to conform to comments made by
the venire during voir dire.

37
The concurrence asserts that this opinion “undercuts the basic
principle of Mattson” inasmuch as the prosecutor’s voir dire remark “could
(continued...)

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It is also manifest that the prosecutor’s comments

regarding Respondent’s manner of testifying transformed his

presence at trial into an “automatic burden on his credibility,”

Portuondo, 529 U.S. at 76, (Ginsburg, J., dissenting, joined by

Souter, J.), inasmuch as attendance during voir dire was a reason

advanced by the prosecution for the jury to treat his testimony

as unbelievable. The prosecutor may permissibly cast doubt about

the “substance” of a defendant’s testimony by referring to

specific evidence suggesting that the defendant engaged in

tailoring. Hemingway, 528 A.2d at 748. However, the prosecutor

cannot ask the “jury to infer the defendant's lack of credibility

from the manner in which he presented his testimony[,]” id.,

because that inference, “related only to the defendant's presence

in the courtroom[,]” “burdens the constitutional rights of

defendants,” specifically the right to be present at trial,

Mattson, 122 Hawai#i at 325-26, 226 P.3d at 495-96. Here, the

inference that Respondent was not credible was not drawn from

testimony, but from his rightful presence during voir dire.38

37
(...continued)
have aided a reasonable juror in assessing [Respondent’s] credibility by
providing an explanation for [his] demeanor on the stand.” Concurring opinion
at 19-20. But because Respondent’s eye contact is conduct “as consistent with
innocence as with guilt,” Mattson, 122 Hawai#i at 326, 226 P.3d at 495
(internal quotation marks and citation omitted), the prosecutor could not
unfairly encumber Respondent’s right to be present by urging the jury to
construe the ambiguity against Respondent. Portuondo, 529 U.S. at 77
(Ginsburg, J., dissenting, joined by Souter, J.). Respectfully, it is the
concurrence that misapplies Mattson. The argument proffered by the prosecutor
does not relate to anything other than Respondent’s demeanor inferred from his
presence throughout trial.

38
The concurrence suggests that requiring counsel to note demeanor
on the record, if to be used in a tailoring accusation, will result in
(continued...)

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Cf. Hemingway, 528 A.2d at 748 (holding as improper a

prosecutor’s generic tailoring argument that asked the jury to

infer, without referring to any testimony, that the defendant

lacked credibility because of the manner in which he presented

his testimony).

The ICA concurrence quoted People v. Edelbacher, 766

P.2d 1, 30 (Cal. 1989), for the proposition that “‘prosecutorial

comment in argument on an accused’s courtroom demeanor . . . [was

not prohibited where] the defendant has testified and put his

credibility in issue.’” Walsh, 123 Hawai#i at 291, 231 P.3d at

1008 (Fujise, J., concurring (ellipsis and brackets in

original)). In that case, the prosecutor stated during summation

that the defendant, while testifying, did not “act emotionally,

[the jury] saw him sitting on the witness stand, he didn’t have

any emotion.” 766 P.2d at 30. The California court concluded

that “[c]omment on a defendant’s demeanor as a witness is clearly

38
(...continued)
“additional interruptions” during trial by counsel seeking to note for the
record a witness’s demeanor, and asserts that “some non-verbal cues” are “not
susceptible to verbal description.” Concurring opinion at 11. If the
argument is tied to a purported advantage the defendant gained via his
presence at trial, the argument implicates the defendant’s constitutional
rights, which predictably may be raised on appeal. In that regard, the
prosecution is free to choose to note the specific demeanor for the record or
not, (as it would with respect to any evidence), knowing that the matter
potentially may be an issue for appeal. As to “additional interruptions” from
litigators and the courts, it appears that litigators and the courts
frequently and correctly note behavior in the record without considering these
to be significant “interruptions.” See State v. Kiese, No. 29792, 2011 WL
682258, at *4 (App. Feb. 25, 2011), cert. accepted (July 29, 2011) (“Your
Honor, if the record will reflect the witness is shaking his head.”); see also
In re Doe, 108 Hawai#i 144, 149, 118 P.3d 54, 59 (2005) (“Let the record
reflect that [the court is] looking at the letter[.]”); Schutter v. Soong, 76
Hawai#i 187, 191-92, 873 P.2d 66, 70-71 (1994) (“And the record will reflect,
[counsel], that you are yelling at the court.”). Finally, if “non-verbal
cues” are not subject to verbal description, it is unclear how the prosecution
could verbally discuss such cues during closing argument to the jury.

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proper[.]” Id.39 However, Edelbacher did not involve any

argument that the defendant was incredible because his demeanor

resulted from the exercise of his right to be at trial. Because

Edelbacher did not connect any comment on the defendant’s

demeanor with the defendant’s presence during trial, it has no

bearing on the issue here.40

B.

As recounted, Petitioner argues that the prosecutor’s

reminder to the jury of the standard instruction on evaluating

witness testimony during her “eye contact” argument was proper.

However, that argument is unavailing because the standard jury

instruction on witness testimony did not counteract the improper

inference that Respondent was less credible because of his

39
Similar to the ICA concurrence in Walsh, the concurrence maintains
that counsel may comment on a criminal defendant’s demeanor while on the
stand, citing numerous cases that involve comment on a testifying defendant’s
demeanor. Concurring opinion at 7-10. As noted, that general proposition is
not disputed in the instant case. Additionally, the cases cited by the
concurrence are plainly distinguishable because they do not involve any
argument that the defendant’s demeanor resulted from, or was tied to, being at
trial. For example, Patty v. State, 6 So. 2d 399, 400 (Ala. 1942), involved
the determination that the prosecutor’s characterization of the defendant as a
“hard man to get along with” who had a “high temper” and “bad disposition” was
based on the “appearance of the defendant as a witness in his own behalf” and
“was a proper observation and the subject of argument to the jury.” However,
the prosecutor did not link the defendant’s “bad disposition” or “high temper”
to his presence during trial. Thus, Patty, and the cases cited by the
concurrence, have no relevance to the case at hand.

40
The prosecution may comment on the defendant’s testimonial
demeanor at trial. See Edelbacher, 766 P.2d at 30 (allowing comment on
defendant’s testimonial demeanor); see also Schuler, 813 F.2d at 981 n.3
(“When a defendant chooses to testify, a jury must necessarily consider the
credibility of the defendant[, and] courtroom demeanor has been allowed as one
factor to be taken into consideration.”); Good v. State, 723 S.W.2d 734, 736
(Tex. Crim. App. 1986) (“Admittedly, appellant’s demeanor during his own
testimony was properly in evidence by the mere fact that it was a part of his
sworn testimony.”); contra State v. Smith, 91 Hawai#i 450, 460, 984 P.2d 1276,
1286 (App. 1999) (“Unless and until [the defendant’s non-testimonial] reaction
during the trial was lawfully introduced as evidence, it was not a proper
subject for argument to the jury.”).

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presence, inasmuch as the instruction “made no mention of the

prosecutor’s accusations of tailoring.” Daniels, 861 A.2d at

821.

Because the prosecutor argued Respondent’s trial

presence when referring to the instruction, the jury could draw

the conclusion that Respondent’s “means and opportunity of

acquiring information,” as stated in the instruction, see supra

note 27, included his presence throughout the trial. Similarly,

in Daniels, the defendant failed to object to the prosecutor’s

improper tailoring comments during summation. 861 A.2d at 810.

After the prosecutor’s summation, the trial court instructed the

jury it may consider, among other things, a witness’s “means of

obtaining knowledge of facts to which [he] testified,” when

judging the credibility of that witness. Id. at 812. Although

the instruction was not “intended to signal to the jury that

defendant’s presence during trial was among the potential sources

of his testimony[,]” the New Jersey Supreme Court noted that the

charge did not cure the prosecutor’s improper remarks. Id.

According to that court, the trial court’s failure to give an

adequate curative instruction was plain error that “raised a

reasonable doubt as to whether the error led the jury to a result

it otherwise might not have reached.” Id. (internal quotation

marks and citation omitted).

The court in the instant case also told the jury,

albeit prior to the closing arguments, that the jury may consider

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the “witness’[s] means and opportunity of acquiring

information[,]” when assessing credibility. Because the jury was

instructed to consider a witness’s “means” and “opportunity” of

obtaining information, the charge “did not cure the prosecutor’s

comments.” Id. In light of the standard instruction on witness

testimony, and to mitigate what may be a jury’s “natural and

irresistible” inclination to “have in mind and weigh in the

balance” that the defendant heard the testimony of others who

preceded him, Portuondo, 529 U.S. at 67-68, “instructions that

explain the necessity, and the justifications, for the

defendant’s attendance at trial[]” should be given whenever the

defendant testifies to inform the jury that the defendant had a

right and legal duty to be present at trial, id. at 76 (Stevens,

J. concurring, joined by Breyer, J.) (explaining that states and

trial judges have the power to provide juries with such

instructions).41

41
The concurrence maintains that such an instruction should be given
only when the defense requests it, because where the prosecutor does not make
tailoring arguments, the instruction “would needlessly emphasize to the jury
that the defendant’s presence at trial creates a tactical advantage.”
Concurring opinion at 22. However, if it is “natural” for a jury to draw
“adverse inferences from a defendant’s presence[,]” Portuondo, 529 U.S. at 84
(Ginsburg, J., dissenting, joined by Souter, J.), the jury must be “instructed
not to draw [such inferences,]” id. at 84-85 (emphasis added), in order that
the jury’s understanding of the trial process is a correct one. Furthermore,
this court has rejected similar assertions that instructions be given at the
behest of the parties’ “tactical or strategic reasons[.]” State v. Haanio, 94
Hawai#i 405, 414, 16 P.3d 246, 255 (2001) (rejecting the assertion that a
lesser-included offense instruction should be given only upon request). A
contrary approach “impairs the truth seeking function of the judicial
system[,]” id., because juries may improperly have in mind and weigh in the
balance a defendant’s presence when assessing “criminal liability” in the
absence of such an instruction. Id.
Moreover, “the trial courts, not the parties, have the duty and
ultimate responsibility to insure that juries are properly instructed[.]” Id.
at 415, 16 P.3d at 256. Party “tactics” must give way to the “broader
(continued...)

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Additionally, in Daniels the trial court instructed the

jury that “[a]ny arguments, statements, remarks in the opening or

summations of counsel are not evidence and must not be treated by

you as evidence.” 861 A.2d at 812. The New Jersey Supreme Court

concluded that “[t]his charge properly reminded the jury to

differentiate argument from evidence, but the court made no

mention of the prosecutor’s accusations of tailoring[,]” and,

therefore, the charge “did not cure the prosecutor’s [tailoring]

comments.” Id. In the instant case, the jury was similarly

instructed that “[s]tatements or remarks made by counsel are not

evidence.”42 Likewise, as in Daniels, this instruction would not

remedy the lack of a curative instruction. See State v.

Espiritu, 117 Hawai#i 127, 143-44, 176 P.3d 885, 901-02 (2008)

(noting that the failure to correct a prosecutor’s misstatement

of the law in final argument may result in reversal of the

defendant’s conviction).

In Daniels, because the failure to give an adequate

curative instruction amounted to plain error, the case was

remanded for a new trial. 861 A.2d at 810. Similarly, as a jury

41
(...continued)
interests” and governing principles described above. Id. at 414, 16 P.3d at
255; cf. State v. Pond, 118 Hawai#i 452, 467, 193 P.3d 368, 383 (2008)
(holding that, the requirement that the parties provide reasonable notice
before trial of the evidence intended to be introduced at trial of other
crimes, wrongs, or acts, “protects parties and the jury trial system from
falling prey to opposing counsel’s trial tactics and strategies that do not
promote a fair trial”). Finally, requiring the instruction potentially
precludes future error, such as the error that occurred in the instant case.

42
See HAWJIC 3.03, which states in part that “[s]tatements or
remarks made by counsel are not evidence. You should consider their arguments
to you, but you are not bound by their recollections or interpretations of the
evidence.”

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may draw the improper and unreasonable inference that a defendant

who testified may lack credibility simply because the defendant

was present at trial, such an instruction is warranted whenever a

defendant testifies.43 Hence, the jury should be instructed that

a defendant has a constitutional right to be present throughout

trial and while other witnesses are testifying, and that the jury

must not draw any unfavorable inference regarding the credibility

of the defendant’s testimony simply on the basis of the

defendant’s presence at trial.44 Consequently, on remand, if

Respondent testifies, the court must give the jury such an

instruction.45

43
The requirement of such an instruction is also a salutary one
inasmuch as a defendant charged with a felony is obligated to be present at
all stages of trial, including “the impaneling of the jury.” HRPP Rule 43(a).
HRPP Rule 43 compounds the burden placed on the right to testify. In the
absence of an instruction, mandated presence by court rule becomes a detriment
to a defendant because the prosecution is otherwise free to impugn a
defendant’s credibility should he choose to testify. See Mattson, 122 Hawai#i
at 345, 226 P.3d at 515 (noting that HRPP Rule 43 “compounds the burden”
placed “on the right of confrontation[,]” and mandated presence would
otherwise be a detriment to a defendant).

44
In that regard, “[o]nce all the evidence has been presented, it
becomes the court’s fundamental duty to properly instruct the jury on the
law[.]” Montalvo v. Lapez, 77 Hawai#i 282, 291, 884 P.2d 345, 354 (1994).
Indeed, as the “sole source of all definitions and statements of law
applicable to an issue to be resolved by the jury[,]” the court has the duty
“to see to it that the case goes to the jury [sic] in a clear and intelligent
manner, so that they may have a clear and correct understanding of what it is
they are to decide[.]” State v. Hoey, 77 Hawai#i 17, 38, 881 P.2d 504, 525
(1994) (internal quotation marks and citation omitted).

45
Other jurisdictions have required that an instruction regarding
presence be given. See State v. Rose, 622 A.2d 78, 79 (Me. 1993) (explaining
to the jury, after defense counsel objected to the prosecutor’s improper
tailoring questions asked of the defendant on cross examination, that the
defendant had “an absolute legal right afforded all defendants by law . . . to
be present through the entire trial”); Elberry, 645 N.E.2d at 43 (instructing
the jury that the “defendant, who was a witness in this case, was here during
the testimony of other witnesses, but he’s got every right to be here,” and
“there is nothing untoward about the defendant being present when other
witnesses are testifying”); see also Hemingway, 528 A.2d at 748 (stating that
a cautionary instruction to disregard the improper tailoring remarks was
(continued...)

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Our holding does not hamstring the prosecution’s

ability to comment directly on the evidence presented. In that

regard, the prosecution is free to refer to the specific

inconsistencies and contradictions in a defendant’s testimony or

with other evidence, without referring to his presence at trial.

Even in cases where there are no inconsistencies, the “close or

perfect symmetry between a defendant’s testimony and other

witnesses’ testimony, or other evidence of tailoring, may prompt

the jury’s scrutiny.” Daniels, 861 A.2d at 820. Prosecutors may

already cite to specific facts indicating a defendant’s lack of

trustworthiness; there is no reasonable justification for placing

a tailoring burden on testimony.

IX.

Petitioner’s third argument maintains the prosecutor’s

comment that Respondent looked the jury in the eye was “an

attempt by [the prosecutor] to discredit [Respondent] by the

manner in which [Respondent] testified.” (Emphasis in original.)

But, as indicated supra, such a comment was improper because the

suggestion that Respondent’s demeanor was fashioned to conform

with comments heard during voir dire amounted to an attack on

Respondent’s credibility on the basis of his trial attendance.

Furthermore, comment on the “manner” of testifying that

rests on the defendant’s being at trial should be prohibited.

See Hemingway, 528 A.2d at 748. In Hemingway, the defendant,

45
(...continued)
necessary).

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while testifying, gave two versions of the incident at issue, one

that conformed to the testimony of a witness who had previously

testified, and one that differed. In closing argument, the

prosecutor stated that the defendant had “the opportunity, unlike

any other witness, to sit here and hear all the other

evidence[,]” had a chance to “fill in gaps[,]” and “modify

testimony[,]” and urged the jury, upon review of the evidence, to

“come back with a guilty verdict.” Id. at 747 (emphasis added).

The Vermont court noted that the prosecutor could have commented

on the defendant’s change in testimony, but the prosecutor “went

beyond casting this doubt about the substance of the defendant’s

testimony, and asked the jury to infer the defendant’s lack of

credibility from the manner in which he presented his testimony.”

Id. at 748 (emphases added).

Because “[t]here was no testimony that the defendant

and [the witness] had collaborated, or that the defendant

purposefully used the timing of his testimony to ensure his story

coincided with that of [the witness,]” the inference that the

defendant was not credible “was not drawn from the testimony, and

was improper.” Id. Similarly, in the instant case, the

prosecutor’s comment on Respondent’s alleged manner in presenting

his testimony, i.e., looking the jury in the eye, did nothing to

“cast[] doubt on the substance” of Respondent’s testimony, but

erroneously urged that Respondent was less believable as a result

of having been at voir dire. Id.

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X.

Petitioner’s fourth argument, that the jury “likely did

not summarily conclude that [Respondent] tailored his testimony”

because the jury, during deliberations, inquired about

Cooprider’s location during the incident, is unpersuasive.

According to Petitioner, the question shows that the jury “did

not simply dismiss [Respondent’s] testimony based upon an

implication of tailoring, but properly weighed all of the

evidence presented.” First, this jury question is not

determinative of whether a prosecutor’s improper comments affect

a defendant’s substantial rights. Second, the question does not

indicate whether the jury disregarded the improper tailoring

comments or not. Rather, the jury question may indicate that the

jury was considering whether Cooprider was credible; or the jury

could have been questioning whether Cooprider had the best view

of the incident, as opposed to Stephanie or other witnesses. In

either instance, the prosecutor’s comments on Respondent’s

credibility would have weighed improperly in the balance of the

jurors’ deliberations.

XI.

Petitioner asserts in its fifth argument that, assuming

the prosecutor’s statements constituted misconduct, “the evidence

against [Respondent]” was overwhelming and weighs against

remanding for a new trial. To determine whether there is a

reasonable possibility that the misconduct contributed to the

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conviction, this court considers (1) the nature of the conduct;

(2) the promptness of a curative instruction; and (3) the

strength or weakness of the evidence against the defendant.46

Mainaaupo, 117 Hawai#i at 252, 178 P.3d at 18. Upon review, all

three factors weigh in favor of Respondent.

A.

As to the first factor, the nature of the misconduct,

the effect of the misconduct is assessed.47 To reiterate, in

asserting that Respondent “benefitted” from hearing the testimony

of other witnesses before he took the stand, and looked the

jurors in the eye to establish credibility as a result of

comments during voir dire, the prosecutor improperly argued that

Respondent was not credible based on his presence throughout

trial. When the misconduct attacks the credibility of the

defendant, this factor has been weighed in favor of remanding for

a new trial. For example, when the prosecutor “question[ed the

defendant’s] credibility” by wrongly asking the defendant on

cross examination about “unsworn, unimpeachable statements

allegedly attributable” to his brother, this factor weighed in

46
Respondent’s counsel did not object to the misconduct at trial.
“If defense counsel does not object at trial to prosecutorial misconduct, this
court may nevertheless recognize such misconduct if plainly erroneous.”
Wakisaka, 102 Hawai#i at 513, 78 P.3d at 326. “Plainly erroneous” misconduct
is that which affects the substantial rights of the defendant. Id. “In order
to determine whether a defendant's substantial rights have been affected[,]
the court must determine ‘whether there is a reasonable possibility that the
error might have contributed to conviction.’” State v. Murray, 116 Hawai#i 3,
14 n.9, 169 P.3d 955, 966 n.9 (2007) (quoting State v. Gonsalves, 108 Hawai#i
289, 293, 119 P.3d 597, 601 (2005)).

47
Of course, as stated supra, the prosecution’s summation infringed
on several of Respondent’s constitutional rights.

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favor of remand. State v. Knight, 80 Hawai#i 318, 327, 909 P.2d

1133, 1142 (1996). Similarly, when the prosecutor made the

“illegitimate” and “unreasonable” argument that the defendant was

guilty because of his post-arrest silence, “[t]he nature of the

[prosecutor’s] conduct--the first factor--weigh[ed] in favor of

granting [the defendant] a new trial.” Mainaaupo, 117 Hawai#i at

254-55, 178 P.3d at 21. Also, when the prosecutor erroneously

expressed her personal opinion as to the defendant’s guilt and

credibility, this error weighed in favor of remand. State v.

Marsh, 68 Haw. 659, 660-62, 728 P.2d 1301, 1301-03 (1986).

Additionally, the statements diverted the jury from its

duty to decide the instant case on the evidence, by “invit[ing]

the jury to convict on the basis of conduct as consistent with

innocence as with guilt[.]” Mattson, 122 Hawai#i at 326, 226

P.3d at 496 (internal quotation marks and citation omitted).

Finally, the statements were also made during closing argument, a

crucial part of trial.48 The prosecutor argued that Respondent

was not credible due to the exercise of his right to be present

at trial, without referencing any specific evidence, “at a time

when [Respondent] c[ould not] respond[,]” id., with any evidence.

In sum, this factor plainly weighs in favor of Respondent.

48
The prosecutor did state that Respondent is entitled to “hear and
see” the witnesses. However, this statement was undermined by the
prosecutor’s comment that followed, in which she stated, “But with that
becomes the fact that [Respondent] benefitted from seeing all these
witnesses.” The reference to “hear and see” served only as the starting point
to emphasize that, as a result of his presence, Respondent was not to be
believed.

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B.

As to the second factor, the nature of the curative

instruction, the court gave no curative instruction. Thus, this

factor also weighs in Respondent’s favor. Wakisaka, 102 Hawai#i

at 516, 78 P.3d at 329 (finding that this factor weighs in favor

of the defendant when no curative instruction was given even

though defense counsel did not object).

C.

As to the third factor, the strength of the evidence,

when a prosecution’s case against the defendant is not

overwhelming but turns on the credibility of the defendant, it is

likely that the error might have contributed to the conviction.

See State v. Pacheco, 96 Hawai#i 83, 97, 26 P.3d 572, 586 (2001)

(noting that, when acquittal or conviction turned on whether the

jury credited the defendant’s testimony or the state’s evidence,

the evidence was not overwhelming); see also Marsh, 68 Haw. at

661, 728 P.2d at 1302 (stating that the pivotal issue was the

credibility of witnesses and in such a case it cannot be

concluded that “the prosecutor’s remarks had little likelihood of

influencing this critical choice”).

Cooprider testified that Respondent punched Kapena for

no reason, whereas Stephanie, Lucy, and Respondent testified that

Respondent was attempting to flee and to defend himself from the

attackers. As the prosecutor stated in closing argument, “[t]he

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issue [was whether Respondent struck Kapena] in self-defense.”49

Cooprider’s testimony, standing alone, does not present

overwhelming evidence that there was no reasonable possibility

that the “tailoring” error might have contributed to the

conviction.

A jury is instructed to evaluate the weight and

credibility of a witness’s testimony, considering, among other

things, “the extent to which the witness is supported or

contradicted by other evidence[.]” HAWJIC No. 3.09. At points,

Cooprider’s testimony was contradicted by the testimony of the

prosecution’s other witnesses, Kapena and Kepa, in addition to

the testimony of Lucy, Stephanie, and Respondent. Cooprider

testified that he noticed Kapena had his hands at his sides

during his argument with Ilia. In contrast, Kapena testified

that he “had [his] hands up[,]” and Lucy believed “the [male] had

his hands like this (indicating), and he was explaining things,

how would you talk to somebody, have your hands[]” in a

“[y]elling kind of thing.”

Cooprider indicated that Kapena was alone, whereas

Kapena and Kepa explained that they were together. Cooprider

49
HRS § 703-304 (1993), the self defense statute, states in
pertinent part as follows:

Use of force in self-protection. (1) Subject to the
provisions of this section and of section 703-308, the use
of force upon or toward another person is justifiable when
the actor believes that such force is immediately necessary
for the purpose of protecting himself against the use of
unlawful force by the other person on the present occasion.

(Emphasis added.)

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also said that Respondent was “completely by himself[,]” whereas

Kapena, Kepa, Lucy, and Stephanie testified that Respondent was

near Stephanie and Lucy during the incident.

Cooprider noted that Respondent came from a

“commotion.” However, Cooprider also testified that “security

guards” were involved in the “commotion” and were “brushing

people away[,]” “trying to get people to leave.” In contrast,

Kapena testified that there were no security guards in the area.

Lucy testified she did not see any bouncers in the parking lot.

Stephanie testified that no security guard, bouncer, police

officer, or any individual assisted them.

Finally, Cooprider testified that Respondent “walked up

[to Kapena in a] calm, cool, collective[] [sic]” manner, which

was seemingly inconsistent with the testimonies of Kapena, Kepa,

Stephanie, and Respondent. Kapena confirmed that he recalled

Respondent and Kala “wrestling on the ground.” According to

Kapena, Respondent and Kala were “fighting.” Kepa stated that

Respondent fought with Kala. Stephanie testified that

Respondent, after being beaten in a corner, escaped and then fell

“[s]teps away” from Ilia and Kapena, where he continued to be

beaten while he was on the ground. According to Stephanie,

Respondent “stumbled[,]” slipped out, and at that point, punched

Kapena. Respondent testified that he was “crawl[ing] and

stumbl[ing]” in an attempt to escape from his attackers. After

he “crawled and stumbled” to the car, he “got up” and “just swung

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blindly[]” because he “was getting attacked.” Cooprider also

testified that Respondent had no marks on him from the fight, but

Stephanie testified that he had “bumps on his face[,]” big lumps

on “the back of his head” and a “black and blue[]” mouth from the

blows he had received before he struck Kapena.

Thus, Cooprider’s testimony concerning Respondent’s

demeanor and physical condition contrasted sharply with the

circumstances related by the other witnesses. No one, not even

Petitioner’s other witnesses, except Cooprider, testified that

Respondent was “calm, cool, and collect[ed],” and had no marks on

him from the altercation. Cooprider’s testimony was

“contradicted by other evidence,” which raised an issue of

whether his testimony was “worthy of belief.” See Black’s Law

Dictionary at 423 (defining credibility as “[t]he quality that

makes something (a witness or some evidence) worthy of belief”).

Finally, had the prosecutor not tied Respondent’s

credibility to his presence at trial, the jury “may well have

harbored a reasonable doubt,” Pacheco, 96 Hawai#i at 97, 26 P.3d

at 586, of whether Petitioner had negated the defense of self

defense. See State v. Van Dyke, 101 Hawai#i 377, 386, 69 P.3d

88, 97 (2003) (“[O]nce the issue of self-protection is raised,

the burden is on the prosecution to disprove the facts that have

been introduced or to prove facts negativing the defense and to

do so beyond a reasonable doubt.” (Quoting State v. Lubong, 77

Hawai#i 429, 431, 886 P.2d 766, 768 (App. 1994).)). Under the

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self defense statute, “the critical factor in determining whether

an actor’s conduct is justified is the actor’s state of mind or

belief respecting facts and circumstances.” Supplemental

Commentary on HRS § 703-300 (1993). HRS § 703-304(1), governing

the defense of self defense, provides in relevant part that “the

use of force upon or toward another person is justifiable when

the actor believes[50] that such force is immediately necessary

for the purpose of protecting himself against the use of unlawful

force by the other person on the present occasion.” (Emphasis

added.)

With respect to this defense, State v. Augustin, 101

Hawai#i 127, 127, 63 P.3d 1097, 1097 (2002), noted that it was

proper to instruct the jury to consider the defendant’s

self-defense claim “from the viewpoint of a reasonable person in

[the defendant’s] position under the circumstances of which [the

defendant] was aware or as [the defendant] reasonably believed

them to be[.]” In the majority’s view, that defendant may only

be “charged with ‘knowledge’ of those ‘circumstances’ of which he

or she is actually ‘aware.’” Id. at 128, 63 P.3d at 1098 (citing

HRS § 702-206(2)(b) (1993)). Therefore, it is “error to judge

the reasonableness of a defendant’s viewpoint based on

circumstances ‘shown in the evidence’ but of which the defendant

50
HRS § 703-300, which defines “believes,” states that “‘[b]elieves’
means reasonably believes[,]” and applies the “reasonable man standard with
respect to justification for the use of force in self protection, in the
protection of property, and in the protection of others[,]” Commentary on HRS
§ 703-300 (quotation marks omitted).

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is not ‘aware.’” Id. (quoting State v. Pemberton, 71 Haw. 466,

477-78, 796 P.2d 80, 85 (1990)). Thus, a defendant’s belief as

to the surrounding circumstances of the incident is crucial to

the defense.

In this regard, Respondent’s credibility was at the

crux of his defense. The jury must “consider the circumstances

as [the defendant] subjectively believed them to be at the time

he tried to defend himself.” Id. at 132, 63 P.3d at 1102

(brackets, quotation marks, and internal citation omitted). In

doing so, of course, the jury is to decide whether the defendant

was truthful about his subjective belief of the circumstances.

Respondent testified he was aware that he was dazed, confused,

stumbling, and under attack. He “swung blindly” “because he was

getting attacked[.]” To determine whether it was “reasonable”

for Respondent to act that way, the jury must assess Respondent’s

credibility.

Pacheco, 96 Hawai#i at 87, 26 P.3d at 576, where the

defendant was charged with second degree escape, is instructive

in this regard. There, the defendant attempted to run away from

police officers, one of whom had allegedly “intimidated” the

defendant in a previous encounter. Id. at 91, 26 P.3d at 580.

The issue at trial was whether the defendant sought to escape as

a means of avoiding custody, which would support the charge, or

to avoid assault by the police officer, which would not support

the charge. Id. at 97, 26 P.3d at 586.

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As to the strength of the evidence, this court

“observe[d] that whether the prosecution succeeded in

establishing that [the defendant] possessed the requisite state

of mind at the time he fled . . . hinged entirely upon whether

the jury believed or disbelieved [the defendant’s] testimony and,

thus, depended upon winning a credibility contest.” Id. at 96,

26 P.3d at 585. According to this court,
had the jury believed [the defendant’s] testimony, it may
well have harbored a reasonable doubt as to whether [the
defendant] had possessed the state of mind requisite to
committing the offense of second degree escape. As such,
. . . we cannot say that the evidence against [the
defendant] was so overwhelming as to render the
[prosecutor’s] personal disparagements of him and vigorous
and improper attack on his credibility harmless beyond a
reasonable doubt.

Id. at 97, 26 P.3d at 586 (emphasis added).

Similarly, in the instant case, but for the

prosecutor’s “improper attack on his credibility[,]” id., the

jury could have found that Respondent reasonably believed he was

under continuous attack and acted to defend himself, raising a

reasonable doubt as to whether Petitioner had disproved

Respondent’s defense of self defense beyond a reasonable doubt.

In short, like Pacheco, the evidence was not so overwhelming so

as to overcome the prosecutor’s statements, which served to

discredit Respondent and bolster the credibility of the

prosecution’s witnesses. Therefore, all three factors weigh in

Respondent’s favor and there is a reasonable possibility that the

error might have contributed to the conviction. State v. Maluia,

107 Hawai#i 20, 24, 108 P.3d 974, 978 (2005).

62
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

XII.

For the foregoing reasons, the ICA’s June 10, 2010

judgment is affirmed, and the case is remanded to the court for a

new trial in accordance with this opinion.51

Peter A. Hanano, Deputy /s/ Simeon R. Acoba, Jr.
Prosecuting Attorney,
County of Maui (Renee /s/ James E. Duffy, Jr.
Ishikawa Delizo, Deputy
Prosecuting Attorney, /s/ Karl K. Sakamoto
County of Maui, on the
brief), for petitioner/
plaintiff-appellee.

Craig Jerome, Deputy
Public Defender, for
respondent/defendant-
appellee.

51
Because the ICA majority is affirmed and the case is remanded for
a new trial, the ICA’s decision that any question about the restitution order
need not be addressed is also affirmed. As a new trial is warranted, the
restitution order is vacated.

63