State v. Nofoa., 349 P.3d 327

Background

In 2008 Nofoa was charged with kidnapping and first-degree terroristic threatening for an incident where his ex-girlfriend (CW) alleged he held a gun to her neck and forced her into his car; CW later died (unrelatedly) and was unavailable at trial.
CW testified at a 2008 preliminary hearing (extensive cross-examination occurred there), and the State later sought to admit that preliminary hearing testimony at the 2012 trial because CW was unavailable.
The State also sought admission of a contemporaneous 911 recording made at the gas station during the incident; the recording did not mention a gun.
The circuit court admitted both the preliminary-hearing transcript and the 911 call; during closing, after defense argued jurors could see the defendant but not CW, the court ordered the prosecutor to tell the jury CW was deceased (a fact not in evidence).
The jury convicted Nofoa of kidnapping and second-degree terroristic threatening; the ICA affirmed. The Hawai‘i Supreme Court vacated and remanded, holding (1) the court abused its discretion by permitting the prosecutor to state CW was dead and (2) admitting the preliminary-hearing testimony violated the Confrontation Clause because defense lacked sufficient discovery to conduct meaningful cross-examination at the preliminary hearing. The 911 call was properly admitted as a nontestimonial excited utterance.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Nofoa)	Held
Whether the court abused its discretion by allowing the prosecutor to tell the jury CW was deceased during rebuttal	The court could cure any impropriety from defense argument and explain CW’s unavailability	Revealing CW’s death was a fact not in evidence that unfairly prejudiced Nofoa and improperly injected unrelated matter	Court held the judge abused discretion; permitting the prosecutor to state CW was dead was improper and not harmless beyond a reasonable doubt — new trial required
Whether admitting CW’s preliminary hearing testimony violated the Confrontation Clause	Preliminary hearing cross-examination was adequate; motive/focus matched trial	Defense counsel lacked key discovery at the hearing (HPD statements, recorded interview, 911), so cross-examination was not meaningful	Court held admission violated confrontation rights because defense lacked sufficient discovery to meaningfully cross-examine; error was not harmless — new trial required
Whether the 911 call was admissible under hearsay/excited-utterance and confrontation analysis	911 call was an excited utterance and nontestimonial (ongoing emergency)	Argued not an excited utterance and/or testimonial, implicating confrontation	Court held 911 call admissible as an excited utterance and nontestimonial; Roberts reliability analysis applies and was satisfied
Whether errors were harmless beyond a reasonable doubt	Errors did not affect verdict given corroborating testimony	Errors were prejudicial (death inference and key gun testimony only in preliminary hearing)	Court found errors not harmless; vacated convictions and remanded for new trial

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (2004) (testimonial hearsay barred unless witness unavailable and defendant had prior opportunity to cross-examine)
Davis v. Washington, 547 U.S. 813 (2006) (distinguishes testimonial from nontestimonial statements; 911 calls often nontestimonial when addressing ongoing emergency)
State v. Fields, [citation="115 Hawai'i 503"] (2007) (applies Crawford in Hawai‘i; admissibility of testimonial out-of-court statements requires prior meaningful opportunity for cross-examination)
State v. Tuua, [citation="125 Hawai'i 10"] (2011) (prosecutor may not comment on matters outside the evidence in closing)
State v. Basham, [citation="132 Hawai'i 97"] (2014) (improper prosecutorial comments can implicate confrontation and require reversal if prejudicial)
State v. Faafiti, 54 Haw. 637 (1973) (pre-Crawford: extensive preliminary-hearing cross-examination can support admitting that testimony at trial)
Toledo v. Lam, 67 Haw. 20 (1984) (withholding witness prior statements at preliminary hearing may render cross-examination ineffective and bar later use of that testimony)
People v. Torres, 962 N.E.2d 919 (Ill. 2012) (consider motive/focus of preliminary hearing, discovery available, and restrictions on cross-examination when assessing confrontation issues)