State v. Walsh

260 P.3d 350 Hawai'i,

STATE Petitioner/Plaintiff-

Appellee

Timothy WALSH, A.

Respondent/Defendant-Appellant.

No. 29790.

Supreme Court of Hawai'i.

Aug.

274 ACOBA,

Opinion J. Court criminal trial of We hold defendant, prosecution’s statements that testifying “benefitted” from his and, thus, is credible less be cause he heard the of other wit eye and heard voir dire nesses with the was an indicator of contact trustworthiness, prohibited “ge constitute arguments; tailoring” prohibited ge neric tailoring arguments are reviewable neric as a plain error inasmuch as affect defen (3) rights; dant’s substantial constitutional regarding witness standard instructions arguments and do counsel’s improper arguments; cure such accord testifies, ingly, whenever defendant be must instructed trial; present during and has a beyond in case the not harmless error is Based on the a reasonable doubt. reasons herein, forth affirm the June set we judgment Ap of the Intermediate Court (ICA) pursuant May filed peals to its vacating March opinion1 published judgment of Court of the Circuit (the court)2 adjudging Circuit Re Second Timothy spondent/Defendant-Appellant A (Respondent) in guilty of Assault Walsh Degree, Second Hawaii Revised Statutes (HRS) 707-711(1)(b) (Supp.2008),3 § see Walsh, 284, 231 State v. (App.2010), remand the case for and opinion. new with this consistent Hanano, Prosecuting Deputy A. At- Peter (Renee County De- torney, of Maui Ishikawa I. lizo, County Deputy Prosecuting Attorney, brief), Maui, petitioner/plaintiff- for on 31, 2008, May groups people On two appellee. were involved an altercation outside bar, restaurant, night- sports all-in-one Jerome, Defender, Craig Deputy Public Bar and club called “Oceans Beach Grille” respondent/defendant appellee. (the bar) Kihei, in Kukui Maui. One Mall DUFFY, ACOBA, JJ., Judge group Respondent, consisted of sister and Circuit SAKAMOTO,assigned vacancy; Stephanie (Stephanie), and due to a Walsh friends (Ilia). C.J., RECKTENWALD, concurring Lucy Mapson (Lucy) and Ilia Pikaki with J., result, NAKAYAMA, group Kapena with whom The other consisted of Kramer (Kapena), Iokepa (Kepa), Kramer joins. brother 1(1)(b) person Judge provides § opinion "[a] 707-71 was authored Associate 3. HRS joined by Presiding Lawrence M. Reifurth and commits the of assault second offense Judge Judge Foley. R. Daniel Associate Alexa recklessly degree person [t]he ] causes iff Fujise concurring opinion. separate filed a D.M. bodily injury to another[.]” serious substantial presided. Joseph 2. The Honorable E. Cardoza Donald, Kala, ple

their friend known oth- punehes[]” but was backed into a [of] celebrating upcom- Stephanie er men Kepa’s Respondent who were corner. was with ing wedding. groups sought prevent striking had drink- Both been men from him. beverages. Respondent argued According Stephanie, alcoholic the men took Re- Kala, spondent “[p]unehed with fight and Ilia became into corner and involved in a stomped Kepa. attempted stop Respondent kicked and “30 Kapena on[]” times[,]” and, result, Respondent as a conflict Kepa. between Ilia and some At faee[,]” “bumps lumps” “big on “the point, punched Respondent Kapena back of his head” and a and blue[ ]” “black jaw. Respondent up

mouth. “curled in a ball” A. punched about 15 feet the car. He was and kicked for three or minutes. four No Respondent throughout security guard became involved. trial, including dire selec- voir tion.4 Respondent, Stephanie, Lucy,5 Kape- point, approached At some four men Ilia na, officers, Kepa, police attacking Lucy two attempted and John Coo- and started him. bar, so, prider, general manager prevent doing them from she was others, among ground. hit in at trial. the face fell to the Ac- testified cording Lucy, fight testified to Ilia following last. The mat- between and relevant ters, verbatim, the men to five seemed last for minutes. some are adduced from testimony of witnesses at trial as indicated. After the Ilia confrontation between and off, tapered Respondent had other men Lucy Mapson Stephanie Lei and 1. Marie escaped from the corner was in and Walsh parking Lucy’s near lot ear. He was still evening question, Stephanie On the in and being punched. point, Respondent At some Lucy approximately out,” under[,] arrived at the bar at “slipped and “ducked moved closed, p.m. 11:30 They left the bar when away[,]” away it steps to where he was from Ilia, Respondent met together and and yelling Ilia and male who at Ilia a was and ear, Lucy’s headed using towards was to explain point. Respon- which his hands male, parked way up Kape- near Paradise Photo. On to dent apparently came na, car, Lucy’s Kapena. parked which of the and struck male fell and was front The photo shop, argued Lucy’s Kapena hit car. Stephanie Respon- -with At the time was struck, They continuing dent. men were to stopped parked brawl. males Lucy security see or the row did not “bouncers” yelling behind them started them. guards parking during the in the lot alterca- According Stephanie, [Respon- to Kala “told tion. up[,]” Respondent dent] to shut the F and business[,]” replied, [your] own to “[MJind Respondent fled and one of bouncers up you responded, “[S]hut Kala the F ground. from held him the bar stupid The males haole[.]”6 walked towards who, police Respondent, according arrested Respondent, Lucy, Stephanie, and Ilia. Lucy, to blood on and his mouth whose lumped up pretty “head was bad.” Kala,

According Lucy, “angry to who was pumped Respondent and up,” [and] then Kapena Jonah Kramer 2. “[fjace yelled stood and each face[]” Kala, he, other. Respondent. According Kapena, Kepa, Five men attacked To and himself, bar, Respondent defend cou- drank left the “[t]hrew [a] another friend7 at the bar transcript person proceedings 4. A voir dire is not is a a white 6. "Haole” Hawaiian word for part "preliminary Voir dire Mary record. is a & Samuel H. or "Caucasian.” K. Pukui juror prospective by judge Elbert, (rev. examination of a or 1986). Dictionary Hawaiian ed. lawyer quali- prospect to decide whether jury.” fied and suitable serve on a Black’s approximately Kapena 7. stated ten friends (9th 2009). Dictionary Law ed. Kepa's the bar had been at to celebrate bachelor party. Lucy Stephanie 5. simi- Because and testified to a events, lar are version of the their together. discussed closed, ground. Kepa Kapena on the chased Re- headed toward their vehi-

when it and time, spondent hit him in the face and head. and By Kape- parking lot. cles intoxicated, tequila he had imbibed na was Respondent throughout night. eight and nine beers with Re- Kala had “verbal confrontation” Stephanie and Ilia met Respondent females, initially who was with two spondent, Stepha- Lucy Respondent, outside the bar. shop. car, photo nie, corner Kala and near the Lucy, and Ilia walked to the Respondent fought Stepha- and wrestled for about Respondent argued with which time security guards minutes. front Respondent five No staff nie. was in When car, Lucy’s guys became involved. the street “some across yelling[,]” Respondent “told started began Respondent At the time and Kala business[,]” their own to which them to mind clash, yards away fifteen Kala was ten to F responded, up, “[S]hut one of the men Shortly Kapena. after Kala and Re- from you stupid haole.” began Kepa, spondent fight, who was approached, Kala started The men standing Kapena, next to became involved up Respondent, put arguing with who Ilia. This confrontation a confrontation with going he believed Kala hands Photo. at the corner Paradise occurred Respondent initially attack him. front thirty Ilia about Kepa fought seconds “every- punched He was Lucy’s car. Kepa Kapena stepped stopped in and before thing kind of went black.” continuing. Kapena recalled that he away,” kind ran “tried to duck and attempted to his brother and Ilia. At calm continually tripped “side He blinded[.]” Kapena point up, had his hands indicat- fell curb six feet from the car and into Kapena had ended. did conflict photo shop doorway. Respondent was not recall the location of females. The kicked struck “at least ten” times and remembered, thing Kapena next he was thirty-to-forty-five seconds he was “waking up ground” near the lying on pull doorway. Stephanie attempted to Re- photo shop. corner of the spondent’s away, attackers which allowed Respondent escape. to Kepa Kramer 3. Respondent out of the door- “scrambled Kepa consump- to was intoxicated due his way[]” he was struck on the back of beers, tequila. whiskey, tion of and When eight to and he fell forward seven head he, Kala, Kapena, another left the and friend Lucy’s made Respondent feet car. an in the bar and headed toward vehicle stand, but he kicked and effort to he lot, a male female parking Kepa saw and a ground. up” Respondent on the at- “curled arguing. Kepa any security not see did leave, tempted and around the “crawled[ ]” to guards or staff near the male and female. up just and “got car. He and stumbled Kepa’s Respondent, One of friends asked swung punch.” girl?” “[W]hy pick Kepa do have to on a According Respondent, “swung to he blind- argue fight8 Respondent. saw Kala and with ly, just [attempted] to hit whoever was and fight. Kepa began and Ilia to The alterca- getting around at- [him] [he] Kepa tion between and Ilia started put and was tacked.” He his head down lot, parking near and ended sidewalk blindly[.]” “just swung position, crouched and photo shop. the corner Someone Respondent Kapena. Respondent struck Kepa away, pulled and “it done.” away move hit struggled to but was sought According Kepa, point, Respondent no other back of the head. to himself, Kepa kicking punching but the occurring. begun clashes were had defend and point, Kapena police At some arrest- walk to vehicle when was struck. continued. Kepa happened did not but saw ed see what him. examination, get Kepa changed story Respondent physical.” Kala]

8. On cross fight and stated he "never saw between Cooprider 5. John According Cooprider, Kapena had[.]” [Respondent] “did not see eoming[.]” In his According Cooprider, the bar closes at view, Respondent helpless “blind sided a per- approximately 1:15 a.m. Once customers son.” leave, they may parking socialize in the lot. employees Bar attempt to parking clear the Respondent man, After struck the he de- lot to “make sure no stumbling, one is fended himself from approximately fifteen fighting, drinking[.]” Cooprider’s [or] duties people “eharge[d] who Cooprider him.” no- overseeing included activities ensuring ticed two women defending Respondent and safe, people were and not “over intoxicated.” pushing other men Cooprider off of him. patrons intoxicated, If stumbling are security guards attempted to inter- Cooprider and his staff find them a taxi or a vene, fight but the continued. point, At one ride home. Cooprider pulled Respondent off of someone put else and night, ground. That him on the everyone was out of the bar walked, Cooprider 1:30. with another securi- ty guard, parking across the Police lot to the corner officers There, of Paradise Photo. Kape- he noticed police Maui officers arrived at the scene at na and another standing male close to each approximately By time, 2:00 a.m. speaking other and loudly. Kapena was not affray Kapena had ended. was taken to the group with a people, but “was him- hospital where he was treated for two frac- taking self[]” when he was with the male. tures. An officer Respondent noticed that According Cooprider, conversing the man lip a cut and bruises. Kapena appeared Respon- to be with dent. B. He also noticed a among “commotion” In closing argument, main- group consisting mostly males and securi- tained that the Respon- “issue” was whether ty guards twenty yards away from him. Se- defense; dent acted in self did curity guards “trying get people act self defense and the defense wit- leave[,]” if “there [had been] alterea- nesses, Respondent, Stephanie, Lucy, Cooprider tion[.]” did not feel that he had to credible; were not particularly, Respondent help because the situation was “under con- was not credible pres- because he had been Instead,

trol.” Cooprider turned his atten- ent and heard voir testimony dire and the tion to the having two men a conversation. other witnesses: Cooprider them, was five or six feet from and So, you find out a little bit more although about the Cooprider enough” was “concerned character attention, of the individual pay talking we’re did he not think them con- about. versation would physical result in a confron-

tation. According Cooprider, “it seemed Well, [Lucy] got training, yada, CPR they like arguing something” about and yada, yada, but she doesn’t take the time were “a passionate,” little the males’ to dial 911. brought up What was about hands were down at their sides. He did not notice, her on the you you stand is if folks any notice women. had a chance to see her demeanor. When we’re asking somebody, about regardless later, thirty About Cooprider seconds ob- why, they reason even if want to Respondent, himself, served who was self-defense, claim somebody, boy there’s commotion, away walk from the towards the injured out, ground, knocked blood men, “calm, cool, two in a [sic]” collective coming jaw out of his head with his busted Cooprider manner. Respondent observed places. in two How does she react? move to the corner of Paradise Photo. Re- you Doesn’t that tell a lot about the char- cuts, spondent bruises, “did not have [or] acter of the individual? bleeding Respondent whatsoever[.]” approximately “walked 30 inches in front you during Some voir dire and left[,] [Cooprider], and looked over [ ] you selection were asked about what would [Kapena,] at, saw and hit him” everything “with great look and the went into defense at other at trial or and whether thing that was statements one Remember

detail. know, sur- all other circumstances times and [Respondent]? You by me to asked entitled, all, rounding since it. [Respondent], first of here, hear and is entitled to on trial he’s position get into But don’t fooled be- But with that witnesses. see all the eye, somebody you look in the can where that he’s [sic] comes benefitted facts you telling the truth. they must be If seeing these witnesses. all Before from somebody eye, you know how to look stand, each and he saw got up on that independent If we look at the can still lie. witnesses, what heard every one of did [Cooprider], what axe [sic] witnesses going say. they were you? he tell grind? does he have to What only important about that is What’s testimony, everybody’s corroborates It that, voir-diring questions, he heard [Respon- [sic] even even corroborates mentioned, I be- you some testimony. [Coopri- What does own dent’s] know, said, well, you you lieve if sitting there. He watches say? He’s der] up Okay, gets eye. so he me in the looked oh, not, crawling [Respondent], eye. you in the each one here and looks up.... ground getting that mean I am? Does how sincere See added.) (Emphases about, Well, you what you’re sincere? part responded there, Respondent’s counsel know, got up and he Kepa Respondent’s attack on Iokepa Kapena, Remember nervous. credibility by emphasizing been in trouble before they had never ... had “told They get up “upfront” here. had been testified before. never Yeah, urged it. think about counsel They were nervous. truth.” a verdict “speeulat[e]” the first time or reach up come here for not to You have to thinking ... you’re going [Respondent] atmosphere, “looking at in this kind of Kapena Kepa] nicer[.]” looked a lot nervous. [that maintained, rebuttal, Respondent “was things, that among other you important re- [W]hy it is (cid:127) (cid:127) (cid:127) and, contrast, “Cooprider did tell lying” given member story[.]” ... the full [Cooprider], you last week sober, only independent witness 26, 2009, Re- January found On saw, there, axe did he what he what guilty. spondent get that. grind. into have to We’ll impor- matter is it is But the fact of II. [cjourt has read when the tant about the credibili- those instructions A. witnesses, yes, you take into consid- ty of ICA, Respondent argued, appeal to the On ap- as their all those items such eration alia,9 “allow- the court erred demeanor, inter that their manner pearance of the constitution- ing prosecutor to make the intelligence, candor and testifying, the during closing thereof, argument frankness, ally impermissible the interest the lack heard the testi- [Respondent] testifying, argument the that for bias and motives [sic] and tailored his mony all witnesses of other information, acquiring opportunity for evidence!,]” and in the testimony to match of the wit- improbability or probability the argue [Re- to “allowing testimony!,] extent to which ness’ during jury selection by spondent’s] presence supported or contradicted witness is testifying adapt his manner allowed him to supported the ex- [sic] evidence and other dire during voir jurors’ answers contradictory based on gave to which a witness tent trial, throughout right present to be argued stitutional Respondent also unfavor- closing argument deprived Re- not draw ... and that the must statements spondent rights process a fair simply presence to due of his on his presence based able failing "plainly court erred and that the throughout trial." [Respondent] a con- to instruct jury.” justifications, appear ty, order to more credible to the and the for defen- According Respondent, the re- trial. statements dant’s attendance at garding Respondent’s attendance voir added). (emphasis Ginsburg Justice dis- infringed testimony “impermissibly dire and sented, concluding majority’s hold- [Respondent’s] right be constitutional ing presence transformed the defendant’s present during the ... and trial had a chill- right trial a Sixth into an “from Amendment right testify [Respondent’s] effect on eredibility[,]” burden id. automatic on his on his own behalf[.]” Petitioner/Plaintiff- J., (Ginsburg, dissenting, S.Ct. 1119 (Petitioner Appellee State Hawañ or Souter, J.), end, joined by and that “[i]n the prosecution) countered that the prosecutorial practice we are left with a proper. were comments rights burdens constitutional of defen- dants, justified by that cannot be reference parties Agard, Both relied on Portuondo sorting guilty to the trial’s aim of defendants 529 U.S. 120 S.Ct. 146 L.Ed.2d ones, supported from innocent and that is not (2000), which held that a defendant’s our case law.” Id. 120 S.Ct. 1119 Fifth,10 Sixth,11 and Fourteenth Amendm J., Souter, (Ginsburg, dissenting, joined by rights ent12 not violated when J.). that a The Portuondo dissent reasoned summation, prosecutor, in her highlighted generic tailoring argument during summa- “the defendant has a benefit and improper: tion was has, he all benefit that unlike the other wit nesses, is ... sit here and listen to the issue, prosecutorial comment at tied all the other witnesses before presence to the defendant’s Indeed, majority testifies.” the Portuondo courtroom and not to actual testimo- truth-seeking stated that the function of trial ny, no tarnishes the innocent less than prosecutor commenting is served aon guilty. Nor can a defen- measure a “opportunity” to defendant’s tailor his testi credibility by evaluating defen- dant’s 73, 120 mony. Id. at S.Ct. 1119. accusation, response for the dant’s broadside is fired after the defense has concurred, disagreeing Justice Stevens submitted its case. majority’s implicit with the endorsement 77-78, (emphasis Id. at add- which, view, S.Ct. prosecutor’s argument in his ed). truth-seeking demeaned the function of adversary process, violated defendant’s dissent, According ge to the Portuondo dignity, ignored presump- individual tailoring occur when the neric comments tion of innocence. Id. at 120 S.Ct. 1119 defen prosecutor uses “the mere fact of the (Stevens, J., concurring, joined by Breyer, presence dant’s at his as the basis J.). However, suggested Justice Stevens credibility.” impugning Id. at prohibit that the states could such view, prosecu 1119. In the S.Ct. dissent’s instruct the that a defendant had tor, during closing argument, not be should at trial: permitted to on a defendant’s trial comment conclusion, particular is no rea

The Court’s final “where there scrutiny argument survives constitutional son to believe that has occurred not, course, opportunity no deprive does States or trial where the defendant has Id. On judges power prevent rebut the accusation.” either such hand, provide Ginsburg would argument entirely juries or to the dissent Justice during explain permitted prosecutor sum with instructions that the necessi- have argued argued defendant that because New York 10. The defendant that his Fifth Amend- 12.The trial, right testify prose- ment on behalf was required present to his own violat- at law him to be 65, ed. 529 at 120 1119. U.S. S.Ct. right process violated his to due com- cution 74, menting presence. Id. S.Ct. on that at 120 argued prosecutor's 11. The defendant 1119. unlawfully his Sixth Amend- comments burdened trial, rights present testify to be to ment at on behalf, and wit- own to be confronted with the against him. nesses Id. 280 right to specific tailoring confrontation[.]” to a criminal defendant’s

mation make “[ojther “specific According Respondent, tailored elements state defendant to testimony particular to fit testi of his have this issue and conclud courts addressed Id. mony given by witnesses[.]” prosecutorial during ed that comments made closing arguments regarding presence of Ginsburg noted Justice that several state do, fact, criminal defendants trial improper prosecutors it courts had found infringe upon right confron a defendant’s to tailoring solely to make accusations of based Jones, 161, State v. A.2d (Citing tation.” 580 attendance at on “the defendant’s constant Person, (Me.1990));13 5, sum, trial.” Id. at 83 n. Commonwealth v. In 120 S.Ct. 1119. 163 her, according 88, (1987);14 136, a defendant’s Sixth Amend to 400 Mass. 508 N.E.2d 90-92 rights prosecutor, ment burdened a are Elberry, Mass.App.Ct. Commonwealth v. summation, suggests the defen 42-43, 912, 41, cert. or review 645 N.E.2d testimony pointing dant tailored his without denied, 1107, 419 Mass. 646 N.E.2d Id. specific indicating tailoring. to facts 90, (1995);15 Hemingway, State v. 148 Vt. 77, 120 S.Ct. 1119. (1987); John 746, State v. 528 A.2d 747-48 son, Wash.App. reject Respondent “urge[d ICA] (1996).16 countered that Portuon- of the Portuondo holding majority, as Petitioner its reasoning adequately law.” preserve a do was “consistent with Hawai'i case does Jones, closing argu- objected, gave prosecutor during 13. In Id. Defense counsel and the court Appeals curative Id. at The Person, "[the defendant] ment stated that had the a instruction. 43. benefit Massachusetts, knowing everybody relying held what else said before he Court of on opportunity give [the remark of bounds testified. What did that was "out made[,]” testify cura- as he 580 A.2d at 162 and should have been but the defendant] to did?” instruction, added). (emphasis Supreme party objected, The tive to which no "dis- Maine Court infringed posed held that comment on the defen- of the matter.” Id. right present be dant's to confront witnesses and prosecutor's stating, prose- "A direct comment 16. Johnson noted that a comments “unique opportunity had a cutor invites the draw an adverse defendant testimony presence at and hear inference from the defendant’s at trial all corresponding opportunity against impermissibly infringed de and his to hear all him” rights testify Amendment under the witnesses is error.” Id. at 163. fendant’s Sixth 903. United Constitution. 908 P.2d at States state issues raised in No constitutional Person, attorney, during 14. In the defendant’s effectively Johnson. at 902 n. 1. "Portuondo Id. summation, argued that there were several defi- Miller, overrule[d] State Johnsonf.]" v. During ciencies in the case. summa- (2002). Wash.App. How 40 P.3d tion, questioned prosecutor "it whether [is] ever, tailoring questions where dur were asked just sitting a little bit odd that after here for six examination, Supreme Washington cross days listening testimonyL to all the the de- "suggestions tailoring Court determined that gives completely fendant] in and comes tailored appropriate during cross-examination[.]” are story covering every single aspect” cover Martin, v. 171 Wash.2d 252 P.3d State Person, According case. at 90. 508 N.E.2d (2011). The Martin dissent maintained that the statement was because defendant any stage "all accusations of is entitled to hear the evidence and confront the trial, including cross-examination and summa Although against witnesses him. Id. the defense tion,” (Sanders, prohibited. should be Id. at 884 case, prosecution's criticized J., dissenting); (explaining that see id. at 883 "justified making argument.” was not th[e] pro tailoring arguments meaningful "afford no 90-91. of a tection criminal defendant’s constitutional” rights, prohibiting them allows the argu- closing Elberry, in his " on 'draw its reasonable inferences based own ment stated that inconsistencies in stories were evidence, rely, part, rather than even among not lied natural witnesses who had shape able to accusations that the testimony. who had one not heard another’s testimony simply [the defendant] emphasized, N.E.2d at 42. The then be, present, as at his own he had ” Mattson, (quoting opportunity trial[ ]’ Did of the witnesses have the State J., (Acoba, every exactly to see how other witness testified J.))). dissenting, by Duffy, joined concur in this and then their case tailor shaking your "agree[d] Some of are rence with the dissent that evidence? did, did, Washington permit person the Constitution] heads. witness one does not One one every person testify, suggest his witness the de- State to the defendant has tailored saw testimonyf,]” majority’s agreed re- (pointing). with the fendant

B. 226 P.3d 4. The at 487 n. defendant had police previously told the that he held a submitted, After the briefs were this court lighter 320, during incident. Id. the at Mattson, appli- which the decided addressed Contrary P.3d at 490. to the statement jurisdiction. cation of Portuondo in this police and to the similar witnesses’ testi- essentially majority adopted Mattson mony, at the defendant he testified that reasoning Ginsburg’s of Justice dissent in unopened an held knife the incident that, Portuondo and held “it would be im- threatening but had not used it in a manner. I, proper under article 14 of section 319-20, at at Id. 226 P.3d 489-90. He also Constitution, prosecution Hawai'i for the explained up” part that he had “made generic closing make accusations ar- story police “only he had told the because he gument that a defendant tailored his testimo- help[ed wanted to make the statement ny solely based on the defendant’s exercise of (brackets 320, him].” Id. at 226 P.3d at 490 present during his constitutional to be summation, original). During prosecu- in the trial.” 122 Hawai'i 226 P.3d at emphasized tor that the defendant’s trial tes- dissent, 496. In line with the Portuondo timony prior contradicted defendant’s majority generic tailoring said accusations police testimony statement to the and the testimony sort those them “cannot who tailor other witnesses: not, guilty from those who do much less the He told he lied He a (internal quotation from the innocent.” Id. before. omitted). through Moreover, chance to sit the evidence. He ge- marks citation story gibe had to make his tailoring arguments “disregard [sic] with what neric you’ve is in He truth-seeking heard. What evidence.... purpose of trial inasmuch a as through sat generic tailoring the evidence. There is accusations of do not aid a tape. any way determining [A witness’s] in in statement. [Another whether a that, testimony witness’s] defendant has tailored or statement. Based on all he his sim- ply a telling related true version of the events.” Id. is not the truth. All a he sudden original). grabbed in (emphasis remembered that knife. (some added, emphases emphases Id. some

According majority, original). According in to the Mattson ma- generic tailoring in Mattson did not make a jority, because the Mattson, “identified and argument. witnesses testi- two upon specific tri- relied evidence adduced at fied that defendant had threatened an presence addition defendant’s 315-17, al” with a individual knife. credibility, attacking the defendant’s recording phone 485-87. A 911 of a improperly explaining argue did call of one of the not witnesses testimony “tailored his “pulling the defendant was knife” on anoth- defendant based sole- ly on person presence er his at trial.”17 Id. at was “admitted into evidence” and original). played (emphasis for the at trial. Id. at 317 n. P.3d at 497 “persuaded majority suit because the error was harmless. Id. at 880 Mattson the rea- J., dissentf,]” id., (Stephens, concurring part dissenting soning of the Portuondo Fairhurst, JJ.). joined by part, prosecutor may argue Chambers maintained testimony, a defendant’s "consistent with [the] casef,]” other evidence in was due his 17. The concurrence herein contends that Matt- presence, 529 U.S. at S.Ct. because prohibited only argu- accusationfs]” or son "bare argument implication here, "ft]he thfat] seems to in the form of "fh]e ment therefore he story hangs together, -, that the more a defendant’s Concurring opinion at tailoredf.]” likely lyingf,]” he is n. more it is that id. at 79 disagree Respectfully, 385. P.3d at we 120 S.Ct. that does characterization narrow of Mattson. Mattson help "distinguish guilty inno- accusing be- forbade cent),]” By stating id. at 120 S.Ct. cause was "conduct consistent generic tailoring only occurs when it is guilt,” argu- asserted and such an with innocence as with testimony that the defendant help determining "in tailored ment would not here,” restricts, unduly "fh]e was the dissent a defendant has whether tailored confines, objection simply generic Mattson and the related a true version of the events.” Moreover, tailoring. at 496. Hawai'i citation, marks, (internal quotation at 510.19 C. omitted). Additionally, “[al- emphasis the Matt- majority, vein as In a similar right to confront though the constitutional generic comments noted that dissent son justify a should be sufficient witnesses ‘truth-seeking function of “debase ad- tailoring, the barring accusations of rule ‘respect for violate the adversary process,’ Rules of Penal that Hawai'i ditional fact ig dignity,’ and individual the defendant’s (HRPP) mandates Rule 43 Procedure innocence that sur presumption of nore ‘the stages all present be at defendants ” Id. guilty returned!.]’ verdict is vives until a compels prohibiting such further the trial J., (Acoba, 340, dissenting, 226 P.3d at 510 at 329, at 499. Id. at 226 P.3d accusations.”20 Daniels, J.) by Duffy, (quoting State joined spe- “a explained that Mattson dissent (quoting N.J. 861 A.2d is made when tailoring cific Portuondo, at 120 S.Ct. 529 U.S. indicating that a alludes to facts prosecution by Breyer, (Stevens, J., concurring, joined elements of specific tailored defendant has J.))).18 generic explained that a The dissent testimo- testimony particular fit with prosecu “a argument occurs when tailoring at witnesses.” Id. ny given other was able to sit the defendant tor states that (internal marks, quotation P.3d at 506 testimony of trial and hear the through the omitted). brackets, and citation witnesses, thereby allowing the defen sum, prohibit- should be prosecution shape or her opportunity to dant defen- “referring to the fact that the ed from witnesses, even testimony to fit that of other that he heard in the courtroom or dant was has that defendant there is no evidence witnesses, testimony of other 336, 226 P.3d at actually so.” Id. at done testimony.” Id. at to tailor his thus able Thus, may east a while (internal quotation marks at 498 226 P.3d testi of a defendant’s on the substance doubt omitted). Consequently, and citation of constitutional mony, “where the exercise Mattson, general state- prosecutor’s “the ‘insolubly ambiguous’ as between rights is directly attacking defendant’s] [the ments may not guilt, innocence and trial, ability concomitant at and his by urging the unfairly rights those encumber wrong- story gibe [sic] to make his therefore against the ambiguity jury to construe rights to be infringed defendant’s] ly on 338, 226 P.3d at 508 Id. at defendant.” testify.” Id. at trial and to present at 77, 120 Portuondo, U.S. at S.Ct. (quoting (internal quotation marks J., joined by (Ginsburg, dissenting, omitted). J.)). Souter, Hence, on tailoring comments generic III. tai- “suggesting that a defendant summation Mattson, Following established the rule testimony rights, those inverts lored his case found the majority in this the ICA punish the de- permitting the generic “a accusa- remarks were exercising that which the Con- fendant tailored his tion” guarantees.” Id. at stitution therefrom, unnecessary to allow it is enees” have held that "all Mattson dissent would 18. The stage presence in trial at on the defendant’s accusations of comment summation, im- including cross examination evidence with remarks on the connection right be permissibly (internal a defendant’s burden 226 P.3d at 515 summation. Id. against witnesses present at trial and to confront omitted). quotation and citation marks 329, 226 P.3d at 499 122 Hawai'i at him.” J.). (Acoba, by Duffy, dissenting, joined J. 43(a) generally provides that in 20.HRPP Rule felony defendant shall ”[t]he cases specific respect tailor- 19. With plea, arraignment, at evi- at the time of the summation, dis- the Mattson remarks every stage hearings, dentiary pretrial allowing comments "afford such sent noted that jwy impaneling and the including meaningful protection of a criminal defen- no verdict, imposition and at return to confrontation.” dant’s constitutional sentence, provided by except permissible for as otherwise As it is 226 P.3d at 513. discuss, added.) "state, (Emphasis and comment prosecutor to rule.” reasonable infer- well as draw all the evidence as truthfulness[,] they any actually because not did “reference evidence indicative of took [Respondent’s] presence and jurors during relatefd] their cue and at the his looked Walsh, the courtroom.” 123 Hawai'i at testimony.” Id. 1008.21 According 231 P.3d at 1006. to the ICA concurrence, According to the because majority, “drew attention to “jurors responses given during heard the [Respondent’s] presence during witness testi- [Respondent’s] voir dire and witnessed dire, mony and voir emphasized that testimony[,]” “they position were in the best [Respondent] testimony heard all of the judge [Respondent] tailored whether his himself, prior testifying implied that comportment their comments[.]” Id. [Respondent] testimony ap- tailored his However, agreed apparently the concurrence pear prosecu- more credible.” Id. While the case remanded a new trial should be for Respondent tor explicitly did not state that prosecutor’s referring based remarks ICA, testimony, according tailored his being present “benefit” of “implication prosecutor’s argument of the during testimony of other witnesses. was such that the left with the inescapable [Respon- conclusion that because IV. right present during dent] exercised his to be jury voir other dire and witnesses’ testimo- certiorari, asking applied Petitioner for ny, testimony.” he was gravely when [w]hether the ICA erred it Thus, judgment the ICA vacated the held, that comments dur- remanded the case. ing closing argument, implying that [Re- Although analyzed ICA majority testimony spondent] to be tailored whole, prosecutor’s comments as a the con being present more after credible prosecu currence reasoned that some of the voir dire and testi- witnesses’ proper tor’s were some comments were thus, mony, plain constituted error agreed prose not. The concurrence that [Respondent’s] violated of Hawai'i State Respondent cutor’s that remarks “benefitted right present during to be Constitutional seeing witnesses[]” all these because trial. “[bjefore stand, up got on that he saw them, every each and one” were V. they “premised not on were presented during support evidence trial to support question presented In in its [Respondent] the inference that had tailored (1) Application, argues Petitioner that based on what he had heard.” alleged not improper comments did consti- 290-91, J., (Fujise, Id. at P.3d at 1007-08 plain affecting Respondent’s tute error sub- concurring). rights; “did stantial not However, rely solely [Respondent’s] on exercise of his maintained concurrence trial[,]” referred to “separate point[]” made the to be “specific adduced and a Respondent, “having that heard some of the evidence at trial” regarding credibility of eye state took contact instruction challenged appeal Respectfully, there is no evidence that Re- whether the demeanor 21. cue,” spondent "actually” juror(s)] "took [the that of the stand or of a witness a witness on stand, assuming was such a "cue.” there off a criminal or whether the case was Hawai'i at Nowhere in litigator Consequently, or civil one. if a seeks matter "It record is this noted or discussed. appellate particular based on "demean- review very appellate an is difficult for court to review there is no or" that occurred grounded an the record.” issue that is occurred, unexpected record it is that such Schuler, (9th United States v. 813 F.2d "very appellate an that it would be difficult for Cir.1987). Thus, advised, aptly "[i]f Schuler grounded in court to review issue that is not signifi- counsel considers such an [action] Schuler, 813 F.2d at 980. record[.]” cant, he or she ask the trial court to have should circumstance, expec- can be no there reasonable it included in the record.” Id. unques- tation that itself will be the occurrence appellate requires principle review appellate tionably accepted purposes re- complete upon record events relied view. well-established, salutary irrespective of therefore, witnesses, and, Sawyer, rights.” the statements State (1998). Mattson; permissible under comments tai- juror based on answers purpose lored demeanor error is plain “The to improper voir were not rights dire allow court to vindicate substantial they attempt uphold judicial were an to discredit the manner integrity and to (4) testified; in which system, regardless venue in which the Respondent’s did not dismiss appellant present argument,” to failed (5) Miller, implication tailoring; 119-20, based on an 122 P.3d Hawai'i at 223 at “although the issue this case ability 184-85. court’s to review for This witnesses, credibility of the the evidence power error from its plain stems inherent to against indicating [Re- [Respondent] recognize sponte. at 122 such error sua Id. spondent] recklessly 31, course, caused bodi- substantial n. 223 at 187 n. 31. Of we can P.3d injury overwhelming.” ly [Kapena] employ to the power to review an error that

allegedly rights, upon affects substantial such review conclude that no error oc VI. Id. curred. A. B.

Petitioner’s first holding that it is for by reviewing gravely ICA erred the state prosecution generic” tailoring “to make plain ments error is under incorrect because during closing 122 argument, accusations Ha the statements affected consti 326, 496, empha at wai'i Mattson witnesses, rights to tutional to confront be rights “upholding sized that a defendant’s testify, fair and to a trial. under the clause is essential 100, confrontation Miller, 92, See State v. 122 Hawai'i 223 providing ]” with a fair (2010) trial[ defendant 157, that, (noting P.3d if error in 165 may that “a comments not in proceedings adversely affected sub fringe on a defendant’s constitutional defendant, rights error stantial 325, (empha rights[,]” id. at 226 P.3d at 495 error). that, plain It is established under the original). right sis in of confrontation is doctrine, plain error plain “where error has Kassebeer, right. See a substantial State v. rights been committed and substantial have (2008) 493, 516, 409, 118 Hawai'i 193 P.3d 432 thereby, may been affected the error be no (holding prohibiting complainant from though brought ticed even it was question answering (internal a defendant’s “inhibited attention of trial Id. court.” confronting [the defendant] com omitted); quotation marks citation see “adversely plainant” and therefore affected 52(b) (2008) (“Plain HRPP errors Rule or ]”). right to eonfrontation[ his substantial affecting may rights defects substantial be right provides The “confrontation the crimi brought although noticed were not opportunity nal defendant with defend court.”); v. the attention of the State Waki through adversary [or herself] himself our saka, 504, 513, 102 78 P.3d Hawai'i 326 trials, (“If system by parte grant prohibiting ex object counsel does not defense opportunity an to test the misconduct,” prosecutorial may “[w]e trial to jury, guaranteeing evidence front of a recognize plain error the error commit right to face-to-face confrontation.” rights affects ted substantial of the defen Mattson, dant.”) (Internal 122 P.3d at Hawai'i 495 quotation marks cita omitted.). (quoting Apilando, v. 79 Hawai'i Moreover, State tions this court will (1995) (brackets plain apply the error standard of review “to (other omitted). original)) citation seriously correct errors which affect the fair ness, judi integrity, public reputation of proceedings, justice,

cial accusations of also to serve the ends Generic prevent “discourage exercising and to the denial of fundamental a defendant from constitutional right testify ^[22] on his own Finally, right to a fair trial is a behalf.” right P.3d at 496. This substantial court has court, alleged based independent plain on an review of the reviewed violations of error. “[bjeeause record, Rapoza, v. 321, 326, State has held the circuit P.3d infringed upon court’s error (noting an erroneous defendant’s] testify, instruction that has affected the constitutional we address “defen it wit, Staley, error.” State plain right[ as dant’s substantial his or ] her Hawai'i —to 275, 286, (1999); right[ constitutional see also impar ] to a Wakisaka, may recognized plain tial 102 Hawai'i at 78 P.3d at 329 ...— Marsh, error”); State v. 659, 661, (holding Haw. comment on the (1986) 1301, 728 P.2d (concluding 1303 testify plain defendant’s failure to constituted impacted conduct the defen affecting error the defendant’s substantial “right dant’s to a fair trial as to amount to rights). ”). error’ ‘plain rights Because fundamental infringed generic tailoring argu are when Additionally, “[i]t is well settled made, generic tailoring ments are arguments that an right accused has a fundamental to subject plain to are error review. present be stage at each critical Onaka, Onaka v. proceeding.” criminal 112 C. 374, 89, (2006) (ci 380, Hawai'i 146 95 omitted). right tations support argument, “The of a criminal In of its first Pe present defendant to at be his trial is of no titioner maintains that the state magnitude, less than constitutional did “expressly” Respondent is ments accuse upon and, therefore, founded tailoring, the Confrontation and Due the ICA extended Process States Mattson implication.” clauses of both the United to “tailoring by But State v. and Hawai'i Constitutions.” Oku specific phrases there are no words mura, 425, 427, 848, 58 Haw. 570 P.2d employed 851 must be to accuse defendant of (1977). Mattson, right impor tailoring. It is a of “fundamental In court this found the Caraballo, tance^]” State v. 309, 62 Haw. “made an that [the accusation de 320, 91, (1980).23 615 P.2d testimony 99 fendant] tailored his to the evi right testify guaran right 22. The of a to of defendant); is the trial” is a fundamental of a criminal 5, 14, Wilkinson, teed Hawai'i sections 10 of I article of the People see also v. 185 State, 543, 776, Constitution. Tachibana v. 79 Ha Cal.Rptr.3d Cal.App.4th 110 781 226, 231, 1293, (1995). wai'i 900 P.2d 1298 The (noting attorney that an "authorize cannot relin right process is "essential to due of law” as quishment rights, right such substantial as the (inter guaranteed 5 of under section article 1. Id. consent”); present, to be client’s without omitted). right testify nal citation The to is also 241, Calderon, 871, State v. 270 Kan. 13 P.3d 879 guaranteed through compulsory process (2000) (articulating "right present to be that the 14, pertinent clause of section which states ]”); right[ at one’s criminal fundamental trial is a part compulsory that the accused shall "have 229, People Mallory, v. 421 Mich. 365 N.W.2d process obtaining witnesses accused’s 673, 10, (1984) (explaining 681 n. 682 that a Const, 1, § "Logically favor[.]” Haw. art. right present during any defendant has a to be right included in the accused’s to call witnesses stage rights might of trial where his substantial himself, right testify is a he should decide affected); adversely Finnegan, be State v. 784 so[,]” it is in his favor important since "the to do most 243, (Minn.2010) (defining right N.W.2d many witness for the defense in crimi present right); to be at trial fundamental nal cases is the defendant himself.” Rock v. 764, Muse, (Tenn.1998) Arkansas, 52, 2704, State v. 967 S.W.2d 483 U.S. 107 S.Ct. ("The right (1987). present to be opportunity testify an accused L.Ed.2d 37 right.”); necessary guarantee, own corollary trial is a trial but see under fundamental McLaurin, compelled against testimony People section since v. 337 Ill.Dec. 235 Ill.2d every privileged testify criminal defendant is (noting 922 N.E.2d Tachibana, in his or her defense. 79 Hawai'i at right present to be "is not itself a substan 231, 900 P.2d at 1298. right tial under Constitution^]” the Illinois but a right[,] "lesser the observance of which is a jurisdictions 23. Other held that the have securing rights means to of a the substantial right. is a or substantial fundamental defendant”) (internal quotation marks and cita 114, 117, Spain, See Rushen v. U.S. S.Ct. omitted). tions (1983) (stating 78 L.Ed.2d 267 "right personal presence stages at all critical argued [] [the defendant’s] when she was he believed presented ‘[h]e dence fabrieated[,]” testimony “es- story gibe [sic] had make his with what ” pecially troubling” prosecu- because of the you’ve 226 P.3d heard.’ listening defendant’s] tor’s to [the “reference (brackets original). have Courts testimony to other at trial.” arguments generic tailoring based on a found comments, expressly Hart, here, range of all prose wide Similar to Jones and engaged in tailor arguing that the defendant cutor accused ing. when, testimony discussing credibility, she argued Respondent “benefitted” from Jones, A.2d at hearing testimony the other witnesses stated: Manifestly prosecu before testified. I evaluate the suggest jury’s tor’s drew “the attention to remarks testimony you witnesses and their of these [Respondent’s] presence at trial and his re something very important; also consider testimony[,]” opportunity sultant to tailor case only witness who testified (Colo. People, Martinez everybody else’s be- who heard 2010), that Re submitted gave fore he his reason the defendant. as a spondent less believable result. As was knowing had the [The defendant] benefit of Portuondo, prosecutor encouraged everybody said else before he testi- what jury to draw from the the defen “fact" opportunity give did that [the fied. What ” testify, opportunity to dant’s “inference testify as he defendant] to did? testimony. actually he tailored his that had these comments were “tied Because (Ginsburg, U.S. S.Ct. 1119 at 86 n. presence in the defendant’s the courtroom J.) Souter, J., by (emphas dissenting, joined testimony[,]” and actual Portuon not to his original). prosecutor’s es in The comments do, (Ginsburg, 120 S.Ct. 529 U.S. at Respondent in the instant case that “benefit- J., dissenting), they jury invited draw “the presence nearly ted” from are identi his trial from an adverse inference the defendant’s cal to the comments that were found op corresponding at trial and his to be unconstitutional and Portuondo dissent portunity testify[,]” all the to hear witnesses improper. prosecutor in ar The Portuondo Jones, A.2d at 163. gued has a and that “the defendant benefit States, A.2d In Hart v. United gets has[ ] [is that] that he he benefit (D.C.C.A.1988), prosecutor during testimony sit here and listen to the of all the “suggested [the defendant’s] that rebuttal testifies.” before he Id. at witnesses by stating: testimony fabricated[ ]” was added). 64, 120 (emphases S.Ct. 1119 appear ... [T]he Does that ridiculous? disputed reasonably, It also be cannot thing happened amazing ... most said, prosecutor’s ICA that “the majority testimony. [the defendant’s] the course of argument[ jury that the ... was such ] story rapping telling and He started inescapable left with conclusion that be just popping into his as he was ... head right [Respondent] cause exercised to be along.... He sits he going there and then present during ... other witnesses’ testimo thing.... incredible Does says the most Walsh, ny, testimony.” tailoring any make sense? ... Does that that The Hawai'i at 1006. person telling like a the truth? sound Respondent from contention that benefitted tells You on the stand and the truth? Gets listening to all the other witnesses before will have to decide that.... Would testifying conveyed jury to the that plainly story? on that bank Respondent’s testimony therefore should Hart, likely inference Inasmuch as comments According “[t]he discredited.24 Respondent remarks case had benefitted were based from in [that] J., circumstances, Hence, (Ginsburg, it was not argue U.S. 120 S.Ct. 1119 dissent- under the Souter, J.), prosecution necessary ing, joined Respondent also Respondent Mattson, to think [he was able about "what story "gibe,” as in [sic] to make his going say” and how he "fit [his would was] Hawai'i 226 P.3d at 497. evidence[,]” Portuondo, testimony] into the that[, i.e., “solely” Respondent’s presence important Respon on “[w]hat’s about pro presence,] dent’s is ... he heard generic [that] [ ] comments allegedly where it was mentioned voir-dir[e]” by Mattson.25 hibited appears that a witness credible maintain ing eye jurors. According contact VII. Respondent prosecutor, although sup Petitioner’s second contends the posedly each “look[ed] one of members rely solely [Respon- “did not jury] eye[,]” appeared and “sin- dent’s] exercise of his to be eere[,]” Kepa Kapena, and who had “never trial[,]” but specif- “included references to testified before[]” were “nervous” and trial,” ic evidence adduced at “im- when she testifiers,” “inexperienced actually “told it mediately argued why should believe like it was.” The differentiated [Kapena Kepa] [Respondent,]” Respondent Kepa Kapena, sub- suggest over Respondent sequently argued Cooprider may appeared have was credi- ble, gained “sincere” because information Respondent, tried to “discredit” through other witnesses’ and voir reminded the of the standard By contrasting dire.26 Respondent from oth evaluating instruction on witnesses. presence, er witnesses because of assailed exer A. rights, cise of his constitutional and “disre closing argument built garded] truth-seeking purpose of a trial” upon Respondent the contention that “generic inasmuch as the accusations of tai less credible because of his Im attendance. loring aid way d[id] mediately stating after determining [Respondent] whether tai presence hearing by “benefitted” from his testimony lored or simply his related a true Mattson, witnesses, continued, prosecutor the the version the events.”27 of Ha Likewise, Although agrees "compari 25. the concurrence the that "manner" as credible. the prosecution’s regarding Respondent’s statement Respondent appear son” that a false exhibited generic improper tailoring "benefit[]” is under sincerity present ance of because he been Mattson, it maintains that such a is conclusion throughout proceedings, Kapena the whereas and, therefore, “dispositive," the of remainder appeared Kepa to the and nervous due fact that prosecutor’s closing argument the need not be they and had never testified before had not been at -, Concurring opinion discussed. "[Respondent’s] present, improperly pres made However, VII, part at 380. shown in the as ence at trial an automatic burden on his credibil closing argument, including entire Mattson, ity.” Hawai'i at prosecution’s argument Respondent the that (internal quotation and citation omit marks eye jurors maintained contact with because he Thus, ted). plain it is voir dire reference during heard voir dire that such conduct indic is presence. improperly Respondent’s relies on part credibility, parcel ative of is and the of argument Respondent that benefit- Moreover, being that the "truth- ted at trial. inasmuch as 27.The concurrence maintains retrial, case for must seeking jury the is remanded this issue was function[]” of the furthered argument being be addressed to avoid similar jury's "focusing [Respon the ... attention on raised at the new trial. demeanor[,]” providing explana dent's] Respondent’s "based on tion for demeanor more The dire 26. concurrence characterizes the voir throughout Concurring trial. than” his argument larger as made "in context of a at -, opinion Respectfully, P.3d at argument regarding credibility of wit authority provides the concurrence no for its nesses, particular, and in their demeanor while prosecutor's explana Insofar as the statement. at ---, testifying." Concurring opinion Respondent's pure tion for demeanor was based concurrence, According 260 P.3d at 380. to the ly Respondent’s diffi on attendance it is prosecutor dispel "sought to that the notion cult to discern how that function is furthered. jurors accordingly [Respondent’s] find should reiterate, ideally To truth,” is a search for the "[a] credible, testimony suggesting [Re that advanced when a search is not spondent] may have testified in that manner in during prosecutor closing accuses a defendant sincere, appear comparing [Re order spondent’s] testimony argument of based on his on the stand demeanor to that at -, presence, jury thereby inasmuch as a not aided is State’s witnesses.” Id. 260 P.3d at 380. innocent[,]” But, sorting "guilty or in prosecutor, from the according Respondent credibility[.]” evaluating tuondo, adopted Por purportedly sincere "defendant’s "manner” because (Ginsburg, present identified U.S. at 120 S.Ct. 1119 such you truth. If know Respondent’s telling must be 226 P.3d at 496. wai'i at id., events,” you somebody eye, automatically to look in the can how “version it was to the extent “tied lie.”29 discredited still eourtroom[,] presence” in the [his] so, doing jury told prosecutor In Portuondo, U.S. 120 S.Ct. 1119 may though ap- Respondent even have J., Souter, joined by (Ginsburg, dissenting, truthful, Respondent should not be peared J.). knowledge employed because he had believed jury, gained during that he had about B. essence, voir dire. told Kapena Immediately arguing after [Respondent’s] credibility in jury to “assess Respon- whereas Kepa believable comment[,]” light [the] not, discussed the dent was Hemingway, thereby in- 528 A.2d witness credibil- standard instruction on Respondent’s fringing exercise ity, the matter stating, “But the fact of from, testify, “detracting] rather than credibility may that [the consider] Respondent’s] ability to ensuring, obtain a witnesses, [taking] all into consideration id. judgment[,]” fair appearance those items such their assertion, demeanor, testifying, Following prose their manner of ... comment, Cooprider “But John tells it opportunity acquiring informa- cutor’s [and] is[,]” again Respondent’s pres linked like it linked The then tion[.]”28 testimony voir dire and the previous instruction with the ence Respondent’s witnesses with lack of Respondent lacked because credibility, “bolstering” stating, thereby Cooprider’s dire he was voir get position testimony. prosecution’s assertion that fooled into a where “But don’t eye, credibility30 somebody can must viewed look times; statements, J., Souter, J.). dissenting, joined by Additionally, in trial or at other whether case, surrounding was not aided in in the instant and all other circumstances determining innocent, guilty bearing upon credibility. whether or witness and [Respon and could "measure discrepancies Inconsistencies or the testi- credibility by evaluating witness, [his] dent’s] re mony of a between the tailoring], sponse witnesses, [of to the accusation the may may you not different or cause ha[d] fired the defense sub [was] broadside after testimony. weighing discredit In the such case[,]” mitted its inasmuch as the statement discrepancies, effect of or inconsistencies during closing arguments. Id. at came they within one testi- whether occur witness’s J., (Ginsburg, joined dissenting, by S.Ct. 1119 witnesses, mony or as different con- between Souter, J.) (noting during made that statements they impor- sider whether concern matters of the because defen summation detail, only unimportant tance or matters of could not dant had submitted case and re they innocent and whether result from error or spond). deliberate falsehood. added.) (Emphasis (HAWJIC) Jury Criminal 28.Hawaii Instructions § follows: 3.09 states as jury reference to the instruc- 29. your right exclusive determine wheth- It is mitigate any impropriety. tion did not The di- to what a witness should be er and extent jury that the can con- rective instruction give weight or her believed and to to his testi- appearance of sider the witnesses demeanor evaluating weight mony accordingly. the following prosecutor's was undermined testimony, you credibility of a and may demeanor; witness’s "get warning jury should not fooled into appearance consider the witness’s somebody position can a where because look testifying; the witness’s manner of telling eye, in the truth.” The must intelligence; the witness’s the witness’s candor platform a instruction served to state thereof; frankness, or lack the witness’s or feigned was based demeanor case; interest, any, if result of this Thus, during voir information dire. received relation, any, party; if a the wit- witness's prejudicial argument impact exac- the erbated, bias, feeling, temper, if has been ness’s mitigated, by the reference to the shown; opportunity the witness's means jury instruction. information; acquiring probability or im- testimony; probability of the witness’s ex- prosecutor may supported attack which the or con- It is established that a tent to witness is evidence; who extent of a defendant chooses tradicted Apilando, contradictory testify. at 79 Hawai’i which the witness has made — Found., Inc., presence permeated the context of his trial ic S.W.3d (“[I]n closing argument. -, -(Ky.Ct.App.2010) light her The comments thus of the instructions Respondent’s] “transform[ed at tri given by court was to al from a into an auto [constitutional] presented consider evidence credibility[.]” matic burden on his Portuon during opening, ... statements made do, 529 U.S. (Ginsburg, 120 S.Ct. 1119 arguments closing, during questions and the J.).31 Souter, J., dissenting, joined by presented voir dire are evidence to be party’s jury[,]”

considered concerns might “over thoughts what be raised in the VIII. jury by questions minds of the on voir basis[.]”); are Gillespie dire without sound v. A. Wilkinson, 08-1675, No. 2010 WL argument Petitioner’s third main (E.D.La. Nov.22, 2010) *4 n. 19 (stating Respon tains judge potential explained juror dent “tailored” his demeanor based on jurors process dire the “voir was not during improper. answers voir was not dire Miller, any way”); evidence Francis v. regard, In this the ICA concurrence conclud 07-0140-CV-W-ODS, No. 2007 WL prosecutor’s argument prop ed that the (W.D.Mo. Nov.19, 2007) *6 (“[Questions merely generic er it “was not during evidence[.]”); asked voir dire are not of tailoring, accusation but was based on State, 09-09-00137-CR, Brown v. No. [Respondent’s] actions after witnessed the 4,2010) (Tex.Ct.App. Aug. WL at *5 Walsh, juror’s comments.” 123 Hawai'i at that, (noting potential juror “indicated he J., (Fujise, concurring) 231 P.3d at 1008 during understood that what he heard voir added). (emphasis [inasmuch dire not evidence no evi as] ]”); presented yet[ had been dence Ordinarily, juror during statements cf. (“[T]here types HAWJIC 3.07 are two dire voir are not evidence. See State v. evidence, such evidence —direct as the testi Ashley, 1045, 1059 (La.Ct.App.2009) So.3d mony of assert evidence.”); witnesses who actual knowl (“July voir dire is not see also fact, evidence, edge of a and circumstantial Khoury, v. United States F.2d (11th Cir.1990) (the permits a reasonable inference from court district instructed fact.”); existence of another HAWJIC [by ju “that the one statements (“After 1.01 heard all has] made voir dire were not evidence ror] arguments ease[]”); evidence this case and nothing and had with the to do counsel, State, 05-235, have received written instruc Shaw No. CR 2005 WL (Ark. (“Matters 30, 2005) ap at *1 June tions court as law that duty plies[,]” determining voir are not has the discussed dire considered evidence.”); guilt Estate Burton v. Trover Clin or innocence and its “decision must be ("This that, closing, by suggesting 142 court has when a own that his held demeanor sincere, testify, credibility the takes stand to his or her by contrasting inwas fact it to the de any witnesses, be tested in the manner as otherwise!,]” can same other meanor of other or con witness.”). regard, "[t]he that of a 380, at -, curring opinion 260 P.3d at and did bias, may by witness be attacked evidence of so, at -, id. at 385-86. 260 P.3d But such a interest, or motive.” Hawai'i Rules of Evidence response only legitimacy would the confirm Thus, 609.1(a) (1993). prosecutor may Rule challenge a generic argument by tailoring Petitioner. credibility by com- defendant’s Respondent The inference that was less credible bias, interest, menting on evidence of or motive. very as a result of his is the inference here, suggested prosecutor Respon- But that Mattson Portuondo dissent and condemned. was not to his dent believable due attendance at Although Respondent Respon could contrast testimony voir dire and the of other witnesses at witnesses, doing dent's demeanor to that Remarking Respondent trial. that has "benefit- nothing counter so would do the inference dire, including being from voir is ted” planted by Respondent’s prosecution that de bias, interest, any anot comment on evidence of shaped presence, meanor was motive. appeared whereas other honest be witnesses concurrence, through cause in attendance According Respondent had not been to the argument during out trial. [Petitioner's] could "rebut

290 respect by potential jurors with solely receive[d] ... in was said based evidence venire’s com instructions.”); eye contact. Inasmuch as the room and the court’s evidence, ments were not (noting 1.02A that the instruction HAWJIC outside impermissibly commented on matters given “prior regarding taking note must be A allowed to the evidence. is being presented”); evidence HAWJIC discuss, “state, the evidence comment on (directing jury to “consider 3.03 inferences well as to draw all reasonable as presented,” “such which has been evidence Clark, Ha the evidence.” from State may justified by inferences therefrom as (em (1996) 289, 304, 194, wai'i P.2d sense[,]” emphasiz and common but reason added); Mainaaupo, see phasis State v. made ing that or remarks “[statements (“Al 235, 253, 1, 19 Hawai'i 178 P.3d evidence[,]” are not and the counsel though a has wide latitude arguments” consider but “are “should their commenting during closing on evidence interpre bound their recollections or not not ... com argument, enough it is ]”). Thus, if Petition tations of the evidenee[ evidence’; are based on ‘in ments impeach through sought Respondent er ”) ‘legitimate.’ must his comments also be comments, of voir dire it should have the use (Internal omitted.). prosecutor’s citation A into evidence. proffered comments on matters the evidence” comment “outside before, Tuua, no rec improper. As noted there is is State v. that, 273, 277 (holding herein.32 250 P.3d of the voir dire of the venire

ord remarks, hypothesizing on the Accordingly, there no verification of what Respondent during assertion, Contrary voir dire. to the concurrence’s 32. The concurrence maintains requesting transcript Respondent’s position of voir not that he had the of Concurring opinion dire. Appellate “verified,]” Rules of concurring opinion Hawai'i at - n. first, (HRAP) 10(b)(1)(A). Procedure Rule prosecution’s n. character P.3d at 380 purported potential correct, statements of not ization of voir dire was but that were, nonetheless, but relied on evidence irrelevant, entirely irre deemed voir dire to be prosecution truthfulness. In that spective transcript of whether was consistent sought prosecutor incorrectly instance the im- statement, position prosecutor's that is with the peach not in Petitioner based on statements evi- "contrary” no not to the that there is statement dence. majority verification of what The ICA was said. Second, transcript the voir dire unneces- agreed Respondent, determining that it was 10(b)(1)(A) sary argument. provides HRAP itself, prosecutor's voir but "not the dire here, "request appellant, Respondent, must regarding closing comment transcript parts proceed- a[ ] of such [Respondent’s] dire[]" to witness voir ings appellant (Respondent) deems nec- [ ] as the relevant, therefore, the record of that was essary already (Emphasis are not file.” on Walsh, necessary. voir dire added.) argued In the Petitioner instant case. 288 n. 1005 n. 2. Hawai'i at Respon- appeal disregard that the ICA should Finally, quotes Ek v. the concurrence argument concerning dire dent’s voir inasmuch Boggs, Hawai'i n. transcript filed a (2003), court n. 3 case where this civil However, Respondent voir dire. did not deem petitioner-appellant’s to address declined transcript "necessary,” arguing of voir dire "prefiling that a order” contention circuit court’s juror the ICAthat statements were not before requiring petitioner-appellant to obtain court and the comments on evidence Re- approval filing pleadings was un before future ability jurorsf]” spondent’s "to listen "did supported by Concurring opinion the evidence. specific not connect of its accusations court at - n. at 380 n. 1. This instead, trial[,]” evidence of made merely reiterated would not address that it general relied on a accusation “that innuendo 3, argument, at 102 Hawai'i at 292 n. 75 P.3d evidentiary support.” rather than 3, petitioner-appellant 1183 n. inasmuch as Respondent maintained that "the substantive evidentiary transcript” include "a of the failed to entirely content of voir irrelevant” inas dire is hearing where "all relevant” to the evidence transcript the voir would "either much as dire prefiling proffered, HRAP Rule order was support or contradict the recollec 10(b)(3). Respondent In the instant events,” which, event, case. the in either tion of transcript only required designate parts to validity [Respondent’s] "would not affect the "necessaiy” "point appeal” concurrence, that were to his arguments.” According the Re to ICA, 10(b)(1)(A); point a that before the HRAP spondent “position[]” the he did took that not dire, require transcript dire. See did not Walsh, a of the voir dispute prosecutor’s description the of voir 2, 1005 opinion’s n. 231 P.3d at position "contrary” at 288 a to this assertion 2. was no of what was said n. that there "verification”

291 verdict, consequences (noting improper that it is to allow a defen- they commented matters outside presence dant’s at trial to be used as an trial). Here, adduced the evidence at Mattson allows credibility). attack on his prosecutor by potential discussed statements prosecutor to on a defendant’s comment during members of the elicited voir dire in presence “specific evi- connection thus, and, that she not offer in did evidence dence” that the his tes- defendant tailored “state, discuss, permissibly did not and com Id. at 327, timony 226 P.3d to evidence. Clark, ment” on was in what evidence. case, prosecutor argued In at 497. 304, Hawai'i at 926 P.2d at 209. Respondent ap- shaped that his demeanor to peal’ jury, to state- truthful based on right

A defendant’s to be by potential jurors regarding made ments during analogous voir dire is to a defendant’s However, credibility.34 inasmuch as present during testimony to be of wit evidence, they nesses, and, thus, statements were not in could pres a defendant’s mere “specific not be relied on as evidence”35 to during against ence voir dire be used cannot credibility. support defendant attack his contention that the defendant Cf. Mattson, 314, respect in engaged tailoring.36 Hawai'i at 226 P.3d at As with argues they knowledge "derive[ ] The concurrence that Mattson did not from and ex common only perience[,]” prosecutor state that evidence "which is noted in to which "refer” can summation, at ---, proper tailoring record’’ can be used to amake in at id. 260 P.3d 383— therefore, argument, proper it is to refer to a respect, eye 85. With all due as a contact alone statements, defendant’s demeanor or if even credibility measure of not at issue in this case. is Concurring opinion are in the record. argument prosecutor's at issue that What is is the - (emphasis at omitted). However, n. 260 P.3d n. 4 at 384 credibility alleg Respondent lacked because his Mattson, "specific in edly credible was derived from his demeanor evidence” at trial” that "adduced was unde- presence during supposedly at Mattson, niably in the record. 122 Hawai'i at credibility heard refer and had traits 484; at at 226 P.3d see id. 317 n. regard, prose mimicked those traits. that (noting 487 n. employed regarding cutor voir dire statements testimony of the witnesses was "evidence eye contact as evidence that had an trial”; stating tape was adduced at that the 911 advantage gained solely pres that he his evidence, played "admitted [and] into for ence. The attack on simultaneously at but was not tran- issue, credibility presence any due to is at record”; explaining scribed into the knowledge” jurors. “common Additional argued prosecutor the defendant sat that, ly, requires seeking in attack a Mattson evidence”). "through Respectfully, if evi- based on defendant’s record, specific dence not in it of a nature is dire, put prosecutor voir voir dire must impossible appellate would an court evidence, in insofar as a statements specific review whether there was "evidence” "evidence”, i.e., specific voir dire must refer tailoring. statements, engaged indicating a tailoring argument. to make a argu- respect, 34. With all due the concurrence’s at at 497. Hawai'i ment voir dire remark instant case permitted is "similar” to the that was Concurring that a de opinion at 36.The concurrence states defendant’s Mattson is incorrect. -, reiterate, both meanor stand is "information which 260 P.3d 385-86. To the Matt- "spe- jury and at trial son referred to several items of counsel were able to observe evidence,” arguing juiy appropriately cific the defendant and which the can consider as Concurring presented. opinion tailored evidence in its deliberations^]” evidence ---, added), (emphasis Hawai'i 497. Contrast- P.3d at ingly, improper subject herein did not refer to of com and therefore ment, not an at -, (cit Respondent actually suggesting evidence 260 P.3d at 381-82 id. shaped supposed many proposition his demeanor to conform to cases for the that wit statements, juror pres- referred to his type evidence demeanor is a ness’ testimonial subject comment). course, being general ence alleged tailoring. voir dire as the reason for proper Of entirely ly, comment on testimonial demeanor is proper. See note 39. infra agrees 35. The the voir concurrence dire However, evidence, explanation of the defendant’s concurring opinion statements are not -, 383, simply his at voir demeanor tied to observations but at maintains that proper ground upon eye a which to attack regarding dire is not in the instant case the statements credibility. any cite "type” fails to contact not a information concurrence are that argue that a as allows a to needed to be entered into evidence insofar case that 292 tailoring It manifest the

testimony, argument a is is also that generic Respondent’s manner of objectionable respect regarding to voir dire com- with comments by “no presence the venire because there is at trial testifying ments transformed his actually” credibility,” that defendant ha[d] evidence burden his [the] into an “automatic on response 1119, changed his in to such Portuondo, 76, demeanor at S.Ct. 529 U.S. 120 Mattson, supposed Souter, 122 Hawai'i comments. J., dissenting, by joined (Ginsburg, (Acoba, J., 336, dissenting, 226 J.), at P.3d at 506 during voir dire inasmuch as attendance J.). by joined Duffy, by for prosecution was a advanced the reason his as unbelieva the to treat nothing Significantly, in record there is the cast prosecutor may permissibly ble. The respect Respondent’s demeanor dur- with to doubt the “substance” of a defendant’s about any that testimony, his confirmation referring testimony by specific evidence to or, eye” “in Respondent looked the the in suggesting engaged defendant did, gaze. more if he the nature of the But Hemingway, tailoring. 528 A.2d at point, looking “action” of at the to the However, cannot ask questioned jury when witness stand “jury of credibil to infer the defendant’s lack itself unnatural or extraordi- and of is not an “ ity presented manner which he and, from the thus, nary ‘conduct act is as consistent ” inference, id., testimony[,]” Mattson, 122 guilt[.]’ with innocence as with only presence 326, “related to defendant’s (quoting at Hawai'i at 226 P.3d 496 courtroom[,]” Portuondo, 79, “burdens the constitutional 120 U.S. at S.Ct. 1119 defendants,” Souter, J., rights specifically the joined (Ginsburg, dissenting, by J.)). trial, Mattson, reiterate, at “allowing prosecutor present be 122 Hawai'i To Here, 325-26, the infer invite the to convict on the basis of 226 P.3d 495-96. with ence was not credible conduct as consistent with innocence as testimony, from his improper, be not drawn from but guilt,” “would not rightful dire.38 disregard truth-seeking pur- presence during also voir would Cf. (internal (holding as Hemingway, 528 A.2d at 748 pose quotation trial[.]” omitted).37 tailoring ar prosecutor’s generic marks and citation meanor, cues” and asserts that “some non-verbal defendant tailored his demeanor to conform susceptible description.” by dire. are Con comments made the venire voir "not verbal at -, If curring opinion at 382. 260 P.3d argument advantage purported opinion is tied to 37. The concurrence asserts that "un " gained principle of inas via his dercuts the basic Mattson prosecutor's implicates voir constitu much as the dire remark defendant’s juror assessing rights, predictably may have raised on "could aided a reasonable be tional credibility by expla [Respondent’s] providing appeal. regard, prosecution free to In that is specific Con [his] nation curring opinion demeanor stand.” demeanor for the choose to note at ---, not, (as respect at 385. record or evidence), it would with eye Respondent's knowing potentially But because contact is conduct that the matter guilt,” may appeal. "as consistent with innocence be an issue for As to “additional 326, Mattson, courts, Hawai'i at P.3d at litigators interruptions” from it and the omitted), (internal quotation marks and citation appears litigators frequently and the courts unfairly could not encumber Re correctly behavior in record without note spondent’s right urging to be “interrup considering significant these to be ambiguity against Respondent. Kiese, 29792, to construe the 125 Ha v. No. tions.” See State Portuondo, (Gins 529 U.S. S.Ct. (App. Feb. wai'i 2011), WL at *4 J., Souter, J.). burg, dissenting, joined Re 29, 2011) ("Your accepted (July Hon cert. spectfully, misapplies it the concurrence that or, shaking will witness is if the record reflect the argument proffered by prose Mattson. The Doe, head.”); also In re 108 Hawai'i see anything cutor does relate to other than (2005) ("Let the record pres inferred demeanor letter[.]”); looking is] court at the reflect that throughout ence trial. 191-92, Soong, Schutter (1994) ("And will the record P.2d reflect, [counsel], 70-71 yelling at the are suggests requiring 38. The concurrence court.”). record, Finally, if cues” are not "non-verbal if counsel to note demeanor on accusation, subject description, how verbal it is unclear will in "ad used in a result verbally prosecution such cues interruptions” could discuss counsel ditional during closing argument jury. seeking to the record a de note for witness's gument infer, jury that asked the without standard evaluating instruction on witness referring any testimony, that the defen testimony during “eye her argument contact” credibility dant lacked because of the manner However, proper. argument that is una- in which presented testimony). he vailing jury because the standard instruction testimony on witness did not counteract the quoted The ICA People concurrence improper inference that was less Edelbacher, 988, Cal.Rptr. Cal.3d credible presence, because of his inasmuch as 586, (1989), 766 P.2d “ proposition for the the instruction “made no mention of the ‘prosecutorial that argument comment in on prosecutor’s tailoring.” accusations of Dan- an accused’s courtroom demeanor ... [was iels, 861 A.2d at 821. prohibited where] the defendant has tes ” tified put his credibility in issue.’ Because argued Respon- Walsh, 123 Hawai'i at 231 P.3d at 1008 presence dent’s trial referring when to the J., (Fujise, concurring (ellipsis and brackets instruction, jury could draw the conclu- original)). case, sion that “means opportu- stated during defendant, summation that the nity acquiring information,” as stated in while testifying, did emotionally, not “act [the instruction, supra see note included jury] sitting stand, saw him on the witness presence throughout the trial. Similarly, any didn’t have Cal.Rptr. emotion.” 254 Daniels, the defendant object failed to 766 P.2d at 30. The California court conclud improper tailoring com- ed that “[c]omment a defendant’s demean- during ments summation. 861 A2d at 810. or as a witness clearly proper[.]” is Id.39 prosecutor’s summation, After the the trial However, any Edelbacher did not involve ar consider, court instructed the may it gument the defendant was incredible among things, a witness’s “means of because his demeanor resulted from the ex obtaining knowledge of facts to which [he] ercise of his to be at trial. Because testified,” judging the credibility Edelbacher did any not connect comment on Although the defendant’s witness. Id. at 812. demeanor with the in- the defen presence during dant’s struction was not signal it “intended to has no bear to the ing on the issue here.40 presence during defendant’s among potential sources of his testi-

B. mony[,]” the Jersey Supreme New Court recounted, As argues Petitioner noted charge did not prose- cure the reminder to the cutor’s According remarks. Walsh, concurrence, 39. Similar to the ICA concurrence have no relevance to the case at may concurrence maintains that counsel com hand. ment on a criminal defendant’s demeanor while stand, citing numerous cases that involve prosecution may 40. comment on the de- testifying comment on a defendant's demeanor. fendant’s testimonial demeanor at trial. See at ---, Concurring opinion Edelbacher, Cal.Rptr. 766 P.2d at 30 noted, general proposition 381-82. As (allowing comment on defendant’s testimonial disputed Additionally, in the instant case. demeanor); Schuler, see also 813 F.2d at 981 plainly cases cited the concurrence are ("When testify, n. 3 a defendant chooses to distinguishable do not involve necessarily must consider the argument that the defendant’s demeanor resulted defendant!) and] courtroom demeanor has from, to, being example, or was tied at trial. For been allowed as one factor to be taken into State, Patty v. 242 Ala. 6 So.2d consideration."); State, Good v. 723 S.W.2d (1942), pros involved the determination that the (Tex.Crim.App.1986) ("Admittedly, ap- ecutor's characterization defendant as a pellant’s during demeanor his own get along "high "hard man to with” who had a properly in evidence the mere fact that temper” disposition” and "bad was based on the part testimony.”); it was a of his sworn contra "appearance Smith, 450, 460, of the defendant as a witness State v. proper ("Unless own behalf” and “was a observation and (App.1999) until However, subject argument jury.” to the defendant’s non-testimonial] reaction evidence, did not link the defendant’s "bad lawfully the trial was introduced as it disposition” "high temper” proper subject to his was not a Thus, Patty, trial. jury.”). and the cases cited 294 court, Additionally, in Daniels trial give an the

that trial court’s failure to the jury “[a]ny argu that court the instructed adequate plain instruction was error curative ments, statements, opening in the or remarks that reasonable doubt as to wheth- “raised a counsel are not evidence and summations of jury the to a it other- er the error led result you (internal by as must not be treated evidence.” might wise not have reached.” Id. Jersey Supreme 861 A.2d The New omitted). at 812. quotation marks and citation charge properly Court that “[t]his concluded in the instant case also told the court jury reminded the differentiate jury, prior closing arguments, to the albeit evidence, fi’om the court made no men but jury may “witnesses] that consider the the prosecutor’s tion of accusations of tailor opportunity acquiring means informa and therefore, and, charge ing[,]” “did not tion[,]” assessing credibility. Because when [tailoring] prosecutor’s cure the comments.” jury to consider a wit was instructed case, jury similarly In Id. the instant “opportunity” ness’s “means” and of obtain “[statements instructed that or remarks information, charge “did not cure the by not Like made counsel are evidence.”42 Id. light comments.” In wise, Daniels, as this instruction not would testimony, standard instruction witness remedy curative the lack of a instruction. may jury’s be a “natural mitigate and to what 117 143- Espiritu, See v. Hawai'i State and inclination to “have in mind irresistible” (noting 901-02 P.3d the balance” that defendant weigh in the failure to correct a misstate preceded heard of others who argument may ment of law in final result him, Portuondo, 67-68, 529 U.S. at 120 S.Ct. conviction). in reversal of the defendant’s explain necessity, “instructions justifications, Daniels, for the at and the defendant’s because the failure given should be whenev trial[ ]” tendance at give adequate curative an instruction jury error, er the defendant testifies inform the plain re amounted to case was duty legal had a the defendant manded trial. 861 at 810. for a new A.2d 76, 120 trial, present may to be at id. at S.Ct. 1119 Similarly, jury draw as a J.) (Stevens, joined concurring, by Breyer, J. inference a defendant unreasonable (explaining judges may simply and trial have that states who testified lack be juries power provide with such instruct cause the defendant was ions).41 an is warranted such instruction whenever assessing 41. maintains an in- dant’s "criminal liabili- The concurrence that such ty” given only the absence of such instruction. struction should be when the defense it, requests where the does because courts, Moreover, parties, trial not "the tailoring arguments, not instruction make duty responsibility have ultimate to in- needlessly emphasize jury that the "would properly juries Id. at instructed[.]” sure that are presence at trial creates a tactical defendant's Party give 16 P.3d at 256. "tactics” must -, Concurring opinion advantage." way governing "broader interests” and However, P.3d if it is "natural” for a at 386. principles above. Id. at described inferences a defen- to draw "adverse from 255; 452, 467, Pond, State v. 118 Hawai'i cf. Portuondo, presence[,]” 529 U.S. at dant's that, (2008) (holding the re- P.3d J., (Ginsburg, dissenting, joined S.Ct. quirement parties provide that the reasonable Souter, J.), by jury must be not to "instructed notice trial of the evidence intended to be before inferences,]” 84-85, draw id. 120 S.Ct. [such crimes, wrongs, or introduced at trial of other acts, added), jury’s (emphasis in order "protects parties system and the understanding process of the trial a correct falling opposing prey tac- counsel’s trial Furthermore, rejected court one. has simi- promote strategies tics that do a fair given at the lar assertions that instructions be trial”). Finally, requiring poten- the instruction strategic parties’ "tactical rea- error, behest tially precludes future such the error Haanio, 405, 414, sons[.]” State instant case. that occurred in the (2001) (rejecting the assertion 3.03, offense instruction should be part lesser-included which states in See HAWJIC given only upon request). contrary approach A made are "[statements or remarks counsel seeking judi- "impairs argu- the truth function of the You should consider their evidence. id., juries may improperly you, systemf,]” ments are not their cial bound interpretations weigh a defen- recollections or the evidence." have in mind and balance Hence, eye attempt testifies.43 should “an looked the [Respondent] instructed that a defendant has a prosecutor] eonstitu- to discredit present right throughout tional to by be [Respondent] the manner which testi- and while testifying, But, other witnesses are and (Emphasis in original.) fied.” as indi- jury the not draw must unfavorable supra, improper cated such a comment was inference the regarding credibility of the de- suggestion because the de- simply fendant’s testimony on the basis meanor was fashioned to conform com- the presence defendant’s at trial.44 Conse- ments heard voir dire amounted to an remand, testifies, quently, on if Respondent Respondent’s credibility attack on on the ba- jury the court give must the such an instruc- sis of his trial attendance.

tion.45 Furthermore, comment on the “manner” of Our holding hamstring prose- does testifying being that rests on the defendant’s ability directly cution’s to comment prohibited. Heming- trial should be See presented. evidence regard, In that the way, A.2d at Hemingway, 748. In prosecution to specific is free refer to the defendant, while testifying, gave two versions inconsistencies and in defen- contradictions a issue, of the incident at one that conformed evidence, testimony dant’s or with other testimony previ- to the of a who had witness referring presence without to his at trial. testified, ously and one that differed. Even in eases there where are no inconsis- closing argument, stated that tencies, perfect symmetry “close be- the defendant had opportunity, “the unlike tween a testimony defendant’s and witness, any other to sit here and hear all ” testimony, witnesses’ or other evidence of the other had a chance to “fill in evidence[J tailoring, may prompt jury’s scrutiny.” gaps[,]” “modify testimonyU” urged and Daniels, may 820. A.2d at Prosecutors upon evidence, jury, review of the to already specific cite indicating to facts a de- guilty “come back with a verdict.” Id. at 747 trustworthiness; fendant’s lack of there is added). (emphasis court noted Vermont justification no reasonable a tai- placing that the could have commented on loring testimony. burden on change testimony, the defendant’s but the beyond casting “went this doubt

IX. about the of the defendant’s testi- substance mony, Petitioner’s third maintains the and asked the infer the to defen- credibility comment dant’s lack from the manner in requirement understanding 43. The of such an is also it instruction correct of what is are salutary charged 17, 38, one inasmuch as defendant Hoey, State v. Hawai'i decide[.]” felony obligated with a stages to be at all (internal quotation 881 P.2d including impaneling "the omitted). marks and citation 43(a). jury.” HRPP Rule HRPP com- Rule 43 pounds right testify. placed on the burden jurisdictions required in- 45.Other have that an instruction, pres- In the absence of an mandated given. regarding presence See struction be State ence becomes court rule a detriment Rose, (Me.1993) (explaining 622 A.2d prosecution defendant because the is otherwise objected jury, after defense counsel to the impugn free to should a defendant’s questions prosecutor’s improper tailoring asked Mattson, testify. he choose to See Hawai'i examination, of the defendant on cross (noting 226 P.3d at 515 that HRPP Rule 43 legal right had "an afforded defendant absolute "compounds placed right the burden" "on the present through all defendants law ... to be confrontation!,]” mandated would (in- trial”); Elberry, defendant). at 43 the entire 645 N.E.2d otherwise be a detriment to a "defendant, structing who was a regard, "[o]nce In that all has the evidence case, the testimo- witness in here presented, been becomes the funda- it court’s witnesses, every ny got of other he’s duty properly mental instruct here,” nothing and "there is untoward about 282, 291, Lapez, law[.]” Montalvo v. being present when other wit- the defendant Indeed, (1994). as the “sole testifying”); Hemingway, nesses are see also source of law of all definitions statements (stating cautionary A.2d at 748 that a instruction applicable to an to be resolved issue disregard remarks was jury[J" duty it that the court has "to see to necessary). goes the case [sic] a clear manner, intelligent they may clear so have a testimony.” weighed improperly Id. at have in the balance presented added). jurors’ deliberations. (emphases testimony Because was no “[t]here XI. collaborated, witness] defendant and [the ar Petitioner in its fifth asserts purposefully or that used that, gument assuming story timing of his to ensure his misconduct, evi constituted “the statements witness,]” the coincided with that of [Respondent]” against dence was overwhelm inference that the defendant not credible against remanding for a new weighs testimony, not from the and was “was drawn a rea trial. determine whether there is To case, improper.” Similarly, in the Id. instant possibility that misconduct con sonable the prosecutor’s Respondent’s on the comment conviction, consid this court tributed testimony, alleged presenting in manner (2) (1) conduct; of the ers the nature the i.e., looking eye, nothing jury the the did (3) instruction; promptness of a curative of Re- “cast[ ] to doubt on the substance” strength the or of the evidence weakness testimony, erroneously urged spondent’s but against Mainaaupo, defendant.46 117 the Respondent less as a believable 252, 178 review, Upon P.3d Hawai'i at at 18. voir dire. having result of been at weigh Respon all three factors in favor of dent. X. A. argument, jury

Petitioner’s fourth that the factor, of the “likely summarily did As the first the nature [Re- not conclude that to misconduct, is the effect of misconduct spondent] testimony” tailored deliberations, reiterate, inquired asserting that jury, about To during assessed.47 incident, Respondent hearing the Cooprider’s is “benefitted” from location Petitioner, he took unpersuasive. According to of other witnesses before stand, eye simply “did looked the question jury that the not shows [Respondent’s] testimony upon credibility as a of comments dismiss based establish result dire, prosecutor improperly tailoring, implication properly voir argued Respondent credible weighed presented.” all evidence was not First, presence throughout trial. jury question this is not determinative based on his credibility prosecutor’s improper whether com- When the misconduct attacks the defendant, rights. this has been ments affect defendant’s substantial factor Second, new weighed remanding does indicate in favor of for a question not example, jury disregarded whether the trial. For when the Rather, credibility” by jury “questionfed defendant’s] comments or not. may jury asking the cross exam question wrongly indicate that the was con- defendant on “unsworn, credible; state sidering Cooprider unimpeachable or ination whether about brother, questioning allegedly been wheth- ments attributable” to could have weighed in of remand. Cooprider the best view of the inci- this factor favor er 318, 327, dent, P.2d opposed Stephanie Knight, or wit- State 80 Hawai'i 909 (1996). instance, 1133, 1142 prose Similarly, when the nesses. In either credibility “illegitimate” cutor and “unreason comments on would made might Respondent's object bility error have contributed 46. counsel did that the ” 3, "If defense does Murray, misconduct at trial. counsel 14 State v. conviction.’ misconduct, object prosecutorial trial to (quoting n. 966 169 P.3d n. 9 recognize may court mis- nevertheless such Gonsalves, 119 108 State v. Hawai'i Wakisaka, plainly if 102 conduct erroneous.” (2005)). P.3d "Plainly erro- Hawai'i neous” that which affects the misconduct course, supra, prosecution’s 47. Of as stated rights of the defendant. Id. "In or- substantial infringed Respondent's on several of summation whether a defendant's substan- der determine rights. constitutional affected[,j rights tial have been the court must possi- determine there is a reasonable 'whether defendant, guilty able” likely defendant was it is silence, might post-arrest because of his na that the error have contributed to the “[t]he Pacheco, See [prosecutor’s] ture of the conduct —the first conviction. State v. Hawai'i 83, 97, that, weighted] (noting P.3d granting [the favor of factor — acquittal trial.” turned Mainaaupo, defendant] a new conviction on 254-55, Also, Hawai'i at whether at 21. credited the defendant’s evidence, testimony or the prosecutor erroneously expressed when the state’s the evi- overwhelming); personal opinion her as to dence was not see also the defendant’s Marsh, guilt credibility, 68 Haw. at P.2d at weighed this error Marsh, (stating pivotal favor of State v. Haw. was the remand. issue credi- (1986). 659, 660-62, bility and in 1301-03 witnesses such ease it cannot concluded that “the Additionally, the statements diverted the influencing remarks had little likelihood duty from its decide the instant case choice”). this critical evidence, by “invit[ing] convict on the of conduct basis as consistent Cooprider testified Mattson, guilt[.]” with innocence as with reason, Kapena punched for no whereas Ste- (internal Hawai'i at 226 P.3d at 496 phanie, Lucy, Respondent and testified that omitted). quotation Fi- marks and citation Respondent was attempting to flee and to nally, were statements also made defend himself from the attackers. As the closing argument, part a crucial trial.48 of argument, in closing stated “[t]he prosecutor argued Respondent that Respondent issue whether struck [was not credible due to the exercise of his Kapena] Cooprider’s in self-defense.”49 tes- trial, present referencing without alone, timony, standing present not does evidence, any specific “at a time [Re- overwhelming evidence that there was no id., spondent] respond[,]” not] e[ould possibility “tailoring” reasonable er- sum, any plainly evidence. In this factor might ror have contributed to conviction. weighs Respondent. in favor of weight A is instructed to evaluate credibility testimony, and of a witness’s con- B. sidering, among things, other “the extent to factor, As to the of the second the nature or supported which the witness is contradict- instruction, gave curative the court cura- no by evidenee[.]” ed other No. 3.09. HAWJIC Thus, tive instruction. this factor also Cooprider’s testimony points, At was contra- Wakisaka, weighs in Respondent’s favor. by testimony prosecution’s dicted (finding 102 Hawai'i at 78 P.3d at 329 witnesses, Kepa, in Kapena other and addi- weighs that this in favor defen- factor Stephanie, testimony Lucy, tion to the of and given dant when no curative instruction was Cooprider Respondent. testified that he no- object). though even counsel defense did not Kapena ticed had his at his sides hands contrast, In with Ilia. C. Kapena [his] testified that he “had hands factor, Lucy As strength up[,]” [male] to the third believed “the had his evidence, prosecution’s against (indicating), when a case hands like this and he was ex- things, overwhelming plaining turns how would talk to some- defendant is (1993), Respondent § 48. The did state that is 49. HRS 703-304 the self defense stat- ute, pertinent part as follows: states entitled to "hear ever, see” the How- witnesses. pros- Subject self-protection. was undermined Use of force statement followed, provisions and of to the 703-308, this section section that ecutor’s comment in which she upon or stated, the use of force toward an- "But with that becomes the fact that person justifiable other when the actor be- [Respondent] seeing benefitted from all these immediately necessary such force is lieves that witnesses.” The reference to "hear and see” against purpose protecting for the himself starting point emphasize served that, as the person of unlawful other the use force presence, Respondent as a result of occasion. not to be believed. added.) (Emphasis concerning Thus, Cooprider’s kind “[yjelling in a your hands[ ]” body, have physical condi demeanor and thing.” the circum sharply with tion contrasted Kapena was Cooprider indicated No witnesses. related the other stances alone, Kepa explained Kapena and whereas witnesses, one, not even Petitioner’s Cooprider also said together. were except Cooprider, testified by him- “completely Respondent was eolleet[ed],” “calm, cool, had no self[,]” Kepa, Lucy, and Kapena, whereas Coopri altercation. him from the marks on near’ Respondent was Stephanie testified that by other testimony was “contradicted der’s Lucy during the incident. Stephanie evidence,” whether raised an issue of “worthy of belief.” See testimony was Respondent came Cooprider noted (defining Dictionary at 423 Black’s Law However, Cooprider from a “commotion.” some credibility quality that makes “[t]he in- “security guards” also testified evidence) (a worthy of or some thing witness and were “brush- in the “commotion” volved belief’). people to away[,]” “trying get ing people contrast, Kapena testified that tied Re- Finally, leave.” had security guards in the area. presence at there were no to his spondent’s not see bouncers a reason- Lucy jury “may testified she did well have harbored Pacheco, Stephanie doubt,” testified that parking lot. Hawai'i at able bouncer, officer, police security guard, negat- no whether Petitioner P.3d at them. any individual assisted See State v. defense of self defense. ed the ingly According Kapena, from Ilia and be beaten bled[,]” eollective[][sie]” dent and Kala dent corner, dent Kapena, Kepa, Kapena confirmed punched he was he “crawled attempt to cording “got up” and Finally, Cooprider testified “walked Respondent, after fought “fighting.” inconsistent escaped and then fell “crawlfing] and Kapena. Respondent testified slipped while he was on the escape from his attackers. Stephanie, with and stumbled” up [to “just swung Kapena, where he continued Stephanie, and “wrestling manner, which was seem- out, Kepa Kala. that he recalled with Kapena in Respondent and Kala and at stated Respondent “stum- being beaten in a the testimonies of Stephanie stumblfing]” in an blindly[ on the “[s]teps that a] ground. Ac- Respondent. calm, cool, ]” because ground.” testified Respon- Respon- Respon- car, away” point, After he is is the ing facts and P.2d ing State v. to do so mining or to person is disprove the facts defense “the use of force self Van for the Commentary §HRS ^[50] raised, (2003) (“[0]nce use of unlawful defense, Dyke, 101 Hawai'i prove actor’s state of whether purpose 703-304(1), governing the defense of statute, beyond a reasonable such force is justifiable when Lubong, 77 Hawai'i facts burden provides in relevant circumstances.” (App.1994).)). Under occasion.” an actor’s conduct “the critical factor negativing the issue that have been protecting HRS upon or toward force is on the mind or belief immediately necessary 377, 386, § (Emphasis the actor believes the other 703-300 the defense doubt.” himself self-protection prosecution to Supplemental 429, 431, 886 introduced is part that in deter- justified respect- the self another added.) against person (1993). (Quot- defense, v. State respect to this Cooprider also With getting “was attacked.” 127, 127,63 P.3d Augustin, 101 Hawai'i no marks on Respondent had testified that (2002), proper to it was noted Stephanie testified fight, but him from facet,]” jury the defendant’s to consider big lumps instruct “bumps on his that he had viewpoint of a claim “from the self-defense and a “black and of his head” on “the back posi defendant’s] person [the he had re- reasonable the blows mouth from blue[]” which [the circumstances of tion under the Kapena. he struck ceived before (quo- § 703-300, protection 703-300 property, § "bel means which defines 50. HRS omitted). believes[,]” respect applies reasonably marks tation protection of of force justification for the use defendant] [the was aware or as ... hinged entirely defendant] mind the time he fled reasonably believed In upon be[.]” them whether the believed or disbe- view, majority’s may only that defendant and, thus, [the lieved defendant’s] “charged ‘knowledge’ those ‘circum depended upon winning credibility contest.” actually of which she stances’ he or is According Id. at 26 P.3d at 585. to this ” (citing ‘aware.’ Id. at 63 P.3d at 1098 court, 702-206(2)(b) (1993)). Therefore, § HRS it had the believed defendant’s] judge is “error the reasonableness of a testimony, may it well have harbored a viewpoint defendant’s based on circum reasonable doubt as whether [the defen- stances ‘shown in the evidence’ but of which possessed req- dant] had the state of mind ” the defendant is not ‘aware.’ Id. (quoting uisite to committing offense of second Pemberton, 466, 477-78, State 71 Haw. such, degree escape. As we cannot (1990)). Thus, a defendant’s be say against that the evidence [the defen- to the surrounding lief as circumstances of overwhelming dant] was so as to render the incident is crucial to the defense. [prosecutor’s] personal disparage- vigorous ments him and In regard, Respondent’s credi beyond attack on his harmless bility was at the crux of his defense. The a reasonable doubt. jury must “consider the circumstances as subjectively [the defendant] believed them to added). (emphasis 26 P.3d at 586 be at time he defend tried to himself.” case, Similarly, in the instant for the (brackets, quota Id. at 63 P.3d at 1102 prosecutor’s “improper attack on his credibil marks, omitted). tion internal citation id., ity[,]” could have found that so, course, doing In to decide Respondent reasonably believed he was un whether the defendant was truthful about his der continuous and acted attack to defend subjective belief of the Re circumstances. himself, raising a reasonable doubt as to spondent testified he was aware that he was disproved Respon whether Petitioner had dazed, confused, stumbling, and under at beyond dent’s defense of self defense a rea “swung blindly” tack. He “because he was short, Pacheco, like sonable doubt. getting attaeked[.]” To determine whether it overwhelming evidence was not so so as to “reasonable” for Respondent was to act that statements, prosecutor’s overcome the way, the must cred assess served to discredit and bolster ibility. credibility prosecution’s of the witnesses. Pacheco, Therefore, weigh Respon all three factors in charged where defendant with sec is possi dent’s favor and there a reasonable degree escape, ond in is instructive this re bility might that the error have contributed There, gard. attempted the defendant Maluia, to the conviction. Ha State officers, away police run one of whom 20, 24, 108 (2005). wai'i allegedly “intimidated” defendant in previous encounter. XII. 580. The issue at was whether trial reasons, foregoing For the the ICA’s June sought escape as a means of affirmed, judgment and the is case is avoiding custody, support which would remanded to the for a new trial in court charge, police or to avoid assault opinion.51 with accordance this officer, support charge. which would not 97, 26 P.3d at Id. at RECKTENWALD, C.J., By Joined evidence, strength As to the NAKAYAMA,J., Concurring In The Result. prosecu- “observe[d] court that whether the establishing agree in I I tion succeeded de- concur in the result. with the possessed requisite majority fendant] state of that the statement that majority 51. Because the ICA is affirmed and need not be addressed also affirmed. As a new is trial, warranted, is remanded for the ICA’sdeci- trial is the restitution order is vacat- case a new any question the restitution order ed. sion about up to come here for the first time Timothy You have respondent/defendant-appellant you’re going atmosphere, kind of seeing all wit- in this [the] “benefitted from Walsh be nervous. generic accusation nesses” was an tailoring, and conviction must that Walsh’s However, respect- I accordingly be vacated. fact matter is it is im- But the majority’s conclusion fully disagree with the the Court has read portant when re- comments additional about, I you those instructions believe it’s presence during voir dire garding Walsh’s the credibili- Instruction Number about Finally, I believe improper. witnesses, also were yes, you take into consid- ty of inference” instruction relat- an “unfavorable ap- all those such as their eration items presence at ing to the defendant’s trial demeanor, their manner pearance re- given only be the defense should testifying, intelligence, candor and it, quests rather than in all cases in which the frankness, thereof, the interest lack defendant testifies. testifying, op- in bias and motives for information, portunity acquiring charged Assault The State in Walsh probability improbability wit- Degree, violation of HRS the Second testimony, extent to which a ness’ 707-711(l)(b). charge based on § supported is or contradicted witness physical altercation involvement Walsh’s supported other evidence and extent club, night men of a with several outside gave contradictory to which a witness severely injured punched where he or at oth- statements and whether at trial At Walsh Kapena (Kapena). Kramer and all sur- er times other circumstances argued punching Kapena, but he admitted rounding it. closing argu- During did so self-defense. position get But don’t into a fooled ment, prosecutor, discussing after you somebody can look where sis- demeanor Walsh’s telling eye, the truth. If must Stephanie, say: went ter on to somebody eye, you how to know look you during dire and Some of voir indepen- you still can lie. If we look at were asked about what would selection Cooprider, what axe dent witnesses John at, great and the went into look defense grind? did he have to does tell What thing that detail. Remember one you? everybody’s It testimo- corroborates know, You me to [Walsh]? asked ny, own [Walsh’s] even corroborates even entitled, [Walsh], all, since first of he’s say? testimony. John He’s What does here, hear and see all on trial is entitled to not, [Walsh], oh, sitting there. He watches becomes [sic] the witnesses. But with that up. crawling ground getting I’m benefitted from [sic] the facts that he’s think, well, sorry you why making if is she got seeing these Before he all witnesses. that. this evidence light of Because stand, every each and up on that he saw support story. that’s a doesn’t it. Because witnesses, they one heard what of exactly It’s [Walsh’s] That’s what it is. say. going to you try story, because he to make wants important that is not about What’s mind and doesn’t believe he out of his that, voir-diring your ques- he heard the doing just know what he was and blind- mentioned, tions, you which some of I ly reached out. said, know, well, you you they if believe object, did The defense did not and gets eye. Okay, up me in the so he looked during directly to respond the remarks its you eye. and looks of here each one closing. prosecutor The did not mention own Does that mean See how sincere I am? during the presence at trial rebuttal Walsh’s about, Well, you’re sincere? what closing. there, know, Kepa got and he up Kapena, majority with the that the refer- Iokepa agree and I nervous. Remember seeing they having before ence to Walsh “benefitted had never been in trouble and improper generic They get up witnesses” was an testified here. all these never before. Mattson, accusation, Yeah, State v. They were think about it. nervous.

3Q1 (2010), Kramer, Hawai'i 226 P.3d 482 and that Iokepa whom she characterized as error understandably was not Accordingly, harmless. nervous.

Walsh’s conviction must be vacated and the portion This closing case remanded for a new trial. proper and did not type constitute the of generic tailoring prohib- accusation that was dispositive, Because that issue is the court by ited Mattson. Rather than undercutting need not reach the comments jury’s function, truth-seeking argu- regarding event, any voir In dire. the re- ment by furthered that properly function marks did not constitute improper generic an focusing jury’s aspect attention on an tailoring argument Mattson, under and were (his the defendant’s demeanor looking at the Thus, improper. otherwise respectfully I testified) jurors as he providing expla- disagree majority’s with the analysis of that nation that was based on more than his mere issue. presence part, trial. For his the defen- The dant could argument during comments were rebut made context of closing, own larger argument by suggesting that his regarding demeanor sincere, witnesses, was in fact contrasting it particular, their de- witnesses, demeanor of meanor testifying. while or otherwise. prosecutor The Respectfully, I jury’s noted believe that the jurors that some of truth- during stated seeking furthered, function is voir rather they dire that than would consider whether a hindered, by this testing, adversarial witness eye looked them in the in determin- defendant’s to be ing dur- whether that witness was credible.1 The ing unduly trial is not burdened as a result. argued further that Walsh looked jurors at the during testimony, and then conclusion, In reaching ques- three sought dispel the notion 1) whether, tions must be answered: as a accordingly should find Walsh’s matter, general prosecutors are entitled in credible, suggesting may that Walsh closing to testify- discuss the demeanor of a have testified in that manner in 2) order to defendant; whether, in closing argu- sincere, appear comparing ment, Walsh’s prosecutors may refer to statements demeanor on the stand to that of 3) the State’s dire; made voir and whether the particular, witnesses. In con- comments here nevertheless constituted an trasted Walsh’s pros- demeanor with those of improper generic tailoring prohib- accusation ecution Kapena witnesses his brother ited Mattson.

1. The transcript order.”) record does not contain supporting (citing evidence HRAP majority suggests 10(b)(1)(A)). the voir dire. The that because provide requisite Walsh did not transcript, there was no there is "no verification transcripts appellate for the record. by potential jurors event, respect what was said appellate briefing, in his Walsh did not contact,” eye and the therefore dispute the State’s characterization of the state impermissibly commented on matters outside the proceedings. ments made the voir dire at ---, Majority Opinion record. majority concludes that Walsh was not Respectfully, P.3d at 368-69. the absence of the responsible providing transcripts conclusion, transcripts support cannot since voir dire because Walsh contended at the ICA responsibility providing the voir dire tran "necessary” appeal. were not to him on Walsh, scripts appellant. rested with Ha- Majority Opinion at --- n. 260 P.3d at (HRAP) Appellate wai'i Rules of Procedure Rule 10(b)(1)(A)). (quoting 368-69 ever, HRAP Rule How 10(b)(1)(A)("When appellant an desires to raise transcripts to the extent Walsh deemed the any point appeal requires on consideration because, unnecessary, acknowledged it was as he proceedings agen of the oral before the court or ICA, from, reply dispute in his brief cy he did appealed appellant not the shall file with the dire; description appellate the DPA’s of request the voir "Walsh requests pre clerk ... a is contesting pare reporter's prosecu not 'the transcript parts factual basis for the of such proceedings appellant jurors necessary the tor’s comments’ that some as deems said would file.”); already eye that are Boggs, not on look at whether a witness looked Ek v. 102 them in the 289, 3, 1180, Thus, judging credibility.” Hawai'i (2003) ("Inasmuch 292 n. 75 P.3d his or her 1183 n. 3 the majority’s position Ek has failed to include that "there is no verification 3, transcripts February evidentiary by potential jurors[,j” of Majority the 1999 of what said order, at --, hearing regarding 369, prefiling Opinion the we will not is con any regarding trary address contention position. the lack of to Walsh’s own

302 issue, nothing “there starting point majority is The notes that is

As to the first respect to de jurors [Walsh’s] in the record with may consid proposition basic testimony, or meanor his confir er a manner and demeanor on the witness’s mation looked the ‘in the credibility. [Walsh] assessing his or stand in her or, did, 128, 131, eye’ gaze.” the nature of if he his 900 Apilando, State v. at -, (“ (1995) Majority 260 P.3d at 371. 135, Opinion ‘The of confron 138 However, defendant’s on the demeanor opportuni the accused both the tation affords is which both the stand information ty veracity of challenge to observe at trial and counsel were able prosecution’s witnesses and an occasion appropriately can consider as jury weigh the demeanor of those (citation omitted) ”) As evidence in its deliberations. the Court (emphasis in witnesses.’ aptly Texas Jury Appeals of Criminal observed: original); Pattern Hawaii Instructions- Criminal, so Instr. 3.09. here was [The defendant’s] demeanor 7, Jury at # instructed. Instructions properly in own evidence 08-1-0418(3) (Hawai'i Walsh, No. State Cr. v. part it was a the mere fact that of his (“In 2009) 26, evaluating 2d Cir. Jan. presume testimony. sworn can We weight credibility of a witness’s testimo equal opportunity to ob- ny, you may appear consider witness’s Therefore, serve his demeanor. [defen- demeanor; the manner of ance and witness’s demeanor al- dant’s] testimonial could be testifying....”). in final luded to the State on guilt. decided, courts Although Hawaii have not Good, (emphasis at 736-37 add- 723 S.W.2d may opinion, in a whether published counsel ed). a criminal defendant’s demeanor comment on stand, Likewise, jurisdictions many jurisdictions while have other charac terize conduct on witness question the affirmative. nonverbal answered Edelbacher, 983, 47 254 stand as United States v. Modi E.g., People v. Cal.3d “evidence.” (2d 1981) (“A (1989) ca, 586, 1, (“Com 1173, Cir. 30 663 F.2d 1180 Cal.Rptr. upon free to comment the evi ment a defendant’s demeanor as a witness is on dence, demeanor.”), denied, State, including clearly proper[.]”); Patty is see also cert. 2269, 304, 399, 989, (holding U.S. 73 1284 242 So.2d 400 456 102 S.Ct. L.Ed.2d Ala. 6 (1982); Yates, No. CV 07-729-DSF characterization of the Chan v. (C.D.Cal. (OP), get along at *10 as a “hard man with” 2010 WL (“[T]he Feb.8, 2010) high temper disposi prosecutor’s comments and man of and bad “a on neither nor assumed facts proper tion” was comment the defendant’s miseharaeterized evidence, merely testifying); Fogg, State v. N.H. commented on manner of (1923) (“The respon this case the demeanor 119 A. evidence —in per testifying the two witnesses —and made appearance on witness stand dent’s demeanor.”) testifying legitimate missible inferences from their matters manner added) (emphasis (citing Woodford, Allen v. jury, bearing on for the consideration (9th Cir.2004), subjects F.3d credibility, proper and thei’efore amended comment.”); Parente, superseded grounds by, on other Commonwealth v. (9th Cir.2005)); Florez Pa.Super. 440 A.2d F.3d v. United (CPS), (“[T]he States, prosecution 07-CV-4965 2009 WL reference of No. (E.D.N.Y. 2009) July appellant was reversible at *19 arrogance of (“[The solely prosecutor’s] comment on witness’s in that this comment referred error stand.”); during appellant demeanor and conduct examina demeanor (Tex. State, hardly based on extraneous evi 723 S.W.2d tion Good v. dence.”); Carroll, (“During jury M.J. argument, a States v. Crim.App.1986) United (A.C.M.R.1992) 843, (“However, wit de 845 a party may testifying allude to a witness’ ‘ States equal opportunity had an ness demeanor is evidence. United if the meanor (A.C.M.R.1990). 526, .”) Felton, (emphasis origi in 31 M.J. the witness observe such, nal). improper subject of As it is not an Here, 38; comment. the trial counsel’s Majority remarks n. see also during 39, reflected an appellant’s] Opinion [the incident at-n. at 372 n. 39 cross-examination[.]”) added); (emphasis (distinguishing that eases which held com L., 226, State v. 292 Conn. A.2d Gilberto proper ments testimonial on demeanor are 205, (2009) (holding prosecutorial 219-20 that grounds on eases the these did not comment on complaining a -witness’sdemean- arguments linking involve the defendant’s de proper or was her “behavior while trial). presence during his meanor to Re testifying she was was not visible unduly spectfully, such a rule is restrictive. jurors properly but was them as evi lawyers compelled before Trial -willbe to ask the added); credibility.”) (emphasis dence of her court, testimony, in the midst of to note Nitz, 82, 431, People v. Ill.2d 157 Ill.Dec. may of possibly observations demeanor which (1991) (“[I]t 572 N.E.2d ais Moreover, fair useful summation. such de argue comment-on the evidence to scriptions likely objections are to be met with witness is believable because her demean- of counter-descriptions opposing from coun or while testifying because her testimo Finally, sel. even disregarding the addition corroborated.”) added); ny (emphasis was cues, al interruptions, some non-verbal such Commonwealth, Watkins v. No.2008-SC- distinctly appearance, uncomfortable are 000177-MR, (Ky. 2009 WL at *5 susceptible not description. verbal Nov.25, 2009) (“Although prosecutor the cer case, In the instant the com- tainly strayed [stating thin onto ice maintaining eye mented on Walsh contact the complaining jurors witness told the testimony. jury during with the Walsh truth], given emphasis objected has not to this characterization of basis, placed on evidentiary the comment’s on Although demeanor the stand. i.e., complaining witness’s] demeanor eye Walsh’s contact was not noted stand, on say the witness we cannot record, court it was testimonial con- comment palpable amounted ren error stand, duct that occurred on the witness dering manifestly unjust.”) Watkins’s that all of the counsel added); Wesson, (emphasis People v. No. Thus, opportunity to observe. it was evi- (Mich.Ct. *2 WL dence in the ease and the (“[T]he Feb.23, 1999) App. prosecutor’s com during entitled to discuss it summation. ments about the and demeanor of argu permissible whether, one its witnesses inquiry The next comment- of evidence.”) (emphasis ment based on add demeanor, ing on the defendant’s testimonial ed); State, Dodd v. 1044 prosecutors may refer to statements made (“[The (Okla.Crim.App.2004) prosecutor’s] agree majority voir dire. I with the comment on the demeanor that statements made in voir dire are not confrontational of witness, Appellant’s cellmate as a may “evidence” sense that the State former photographs, references to the crime-scene rely place pro- such on statements in implication Appellant and his bur proof viding evidentiary factual glary apartment, of the victims’ these were However, phase of the trial. use in all guilt-stage reasonable illustrations, analogies, summation and the inferences evidence, objected and were jurors’ experience legal common to make the defense.”) added). (emphasis Non-verbal concepts and factual at trial understandable stand, therefore, conduct on the witness can lay jury appropriate though can be even properly closing argument. be the basis such are not in matters evidence. U.S. v. (2d Cir.1986) Biasucci, 786 F.2d majority acknowledges that “comment (holding of an use “ice- on entirely proper”, testimonial demeanor is metaphor berg” proper where it was Majority Opinion at - n. P.3d at used of the loan- propose 370 n. coun to describe “structure appears sharking operation: ‘tip’ ‘iceberg’ sel should note demeanor testimonial on front, submerged being business plans record if counsel to use it in a view, representing may segment, accusation concealed from predictably “which be raised Shelton, appeal[,]” Opinion enterprise”); Majority at - n. the rest of the Scott v. 304 291, 294, (D.Kan.2003) 124, 1244, State, P.2d 79 Okla.Crim. 152 F.Supp.2d 1252-53

295 (“The (holding suggested (Okla.Crim.App.1944) that that prosecutor merely 295-96 experience common to consider in a theft case could not prosecutor use its horse (if any) impact [resulting the trauma in closing what that in that state might abuse] [on have from sexual in two which were not case and related cases memory].”); State v. complaining witness’s in record that the defendants indicated (2000) 290, 345, Jones, Ariz. 4 P.3d 361 197 alternately cases blamed each oth the three (“The by referring to famous se- prosecutor, Simmons, theft); 292 v. Kan. er for State cf. killers[, Wayne Bundy John Ted rial (2011) 406, 410, (holding that 254 P.3d 97 completely Gaey], did not introduce evidence prospective prosecutor improperly told the trial, but rather the realm of the outside during jury to view the kid jurors selection analogy [the between defendant’s drew rape light “in of the Stock napping and case of well- politeness] [the] and that 1) Syndrome[,]” there was holm because no politeness [to murderers indicate that known general, regarding syndrome in evidence innocence].”); People v. did not indicate 2) into jury may mislead be have been 1, Friend, 1, Cal.Rptr.3d 211 47 Cal.4th 97 recognized syndrome is a lieving that (“The (2009) 520, use 549 of 3) meaning, and medical term with a settled analogy permissi- in golf his rebuttal prosecutor implied that the comment held, are enti- prosecutors we have ble. As authority Syn Stockholm “was an on the to state matters not tled summation [it]”). diagnosing capable and was drome evidence, knowl- in but which are common general principles, Consistent with these edge drawn from common or are illustrations in voir dire reflect (foot- where statements literature.”) history, experience, or experience jurors, prosecu- common of the marks, notes, quotation internal brackets the statements in tors are entitled refer to Kell, omitted); v. and citation State U.S., A.2d (Utah 2002) (“While Glymph 490 summation. v. 1033 n. 11 it (the (D.C.1985) did not prosecutor en- permitted in prosecutor true that a is not referred gage in when she in ‘to matters misconduct closing allude trial,’ jurors prosecu- summation to fact that none [the introduced evidence recounting in responded stories] of childhood in the affirmative to tor’s in voir dire matter, offered new factual question physical [was] case not as whether violence her concep- simply as illustrations to make expected intimate should be in an relation- (citation omitted). point.”) tual Danback, v. ship); State 886 S.W.2d (the properly (Mo.App.1994) drew they arguments are Such experiences” “common beyond experience go common referring closing to a number women and, example, the law misstate or having stated voir dire ei- matters which purport to establish factual been knew someone who raped ther have See, proof. part of the burden of are State’s raped and instances that these Cal.App.4th People Katzenberger, v. e.g., Davis, State 116 Ohio St.3d (2009) reported); v. 1260, 101 122, 128 Cal.Rptr.3d (holding (2008) (hold- 31, 50-51, N.E.2d 84-85 puzzle jigsaw that the use of ing prosecutor permissibly referred explain concept of reason illustration alia, hypothetical to a which the used improper, inter able doubt dire, in voir the reference summa- believing where likely misled the into it explaining means that the inquiry tion was “a quantitative doubt is a reasonable weight little defendant’s give should jury may guilt find where the and that disadvantaged] background”).2 showing); Hamilton made a 75% v. state guilty persons Georgia that sometimes courts remarks clos- venire believed have held that guilt, go generally free was but hold- ing argument regarding are must a concession voir dire harmless); State, Joseph Sterling v. improper. Ga. that the remark was State, Ga.App. prosecu- S.E.2d (holding that the S.E.2d improperly (holding argued improperly outside of the tor matters stating closing of the evidence commented on matters outside defen- evidence arguing race and regarding was not about question in whether case dant’s voir dire

305 Similarly, jurors’ juror the DPA here referred to cause and the remaining instructed ex- jurors during statements which reflected their common statements made voir dire knowledge. According and perience nothing evidence and had to do with not DPA, case). jurors eye some indicated that contact credibility. be

would an indicia of The use of Lastly, I consider whether the comment eye credibility contact as a measure of de- improper was because it was tied to Walsh’s knowledge experi- rives from common and presence inquiry at trial. gov- This final something It is to which all can ence. in erned court’s decision Mattson. and which relate cannot characterized as case, this court struck a balance be- misleading.3 Significantly, the DPA was not protection tween the of criminal defendants’ attempting to voir dire to use the establish rights and the constitutional avoidance of point prove factual which the State had at prosecutions. undue on criminal burdens See Hamilton, trial. 295-96 Cf. 326-27, (placing id. 226 496-97 at P.3d at (holding prosecutor that the in a theft horse “moderate warranted” restriction on closing could in case not state that defen- accusations, “general” tailoring permit- while eases, in two in dants related which were not accusations). ting “specific” Mattson set out record, indicated that the defen- identify proper tailoring a test to accusations theft). Thus, engaged dant in this is not improper ones. Id. noted that ac- We type of information the DPA which should cusations are “based on a defen- using to enter in have into evidence before trial[,]” i.e., throughout presence dant’s summation. accusations, generic tailoring are improper. Therefore, majority’s position Id. The prosecuting at at 496. regarding attorney’s tailoring argument DPA’s comment what occurred at in Mattson was justified by dire generic, voir was cannot be not since the referred to proposition in dire pieces sup- that statements voir several of information which Majority Opinion ported not are evidence. at accusation. See id. at ---, Namely, Respectfully, prosecu- P.3d at 369-71. 226 P.3d at 497. majority inapplica pre-trial decisions cited are tor relied on Mattson’s statement in this ble case because none of them dealt which was inconsistent with his what allowed to in as a tape with counsel are discuss as well the state- See, closing argument. e.g., States v. ments two witnesses which also United contra- (11th Cir.1990) Khoury, testimony. 901 F.2d dicted Mattson’s Id. We held (holding that defendants were not entitled reference this evi- referring jury panel the entire struck one addition to have where dence “in Mattson’s juror charged presence said trial” that her son had been meant that accusation presence drug-related solely a crime and in a was “based on his with murdered therefore, cry and, began improper.4 incident trial” was not panel (emphasis original). but trial court where the struck brought closing argument prospective race into dur- some defense counsel the case discuss dire, holding ing jurors’ frequen- voir that the about the remark statements in voir dire cases, harmless). however, cy reported deal which sexual These did not with abuse Bettenhausen, schools) with voir dire statements which derived from the and United States v. (10th Cir.1974) (in jurors' experience knowledge. charg- common F.2d a case making with false statements on defendants returns, holding prosecutor improp- tax Although may disagree people as to 3. reasonable erly prospective jurors' referred summation to propositions whether some derive from common expe- having dire indicated voir that their Danback, e.g., compare experience, 886 S.W.2d the Internal Revenue Service was not rience with (the prosecutor properly drew on the "com- eye unpleasant), the as a use of contact measure experiences” jurors by referring in mon proposition. is not such a closing having to a number of women stated raped or voir that either have been raped Although in these Pitts, Mattson we relied on the fact that knew someone who pointed People reported) to other "evidence” of instances were not closing, Cal.App.3d Cal.Rptr. tailoring in the did decide we here, i.e., question prosecu- (holding presented whether a could not simply related a true version hand, testimony or Thus, prohibited pros- we on the one Indeed, events.”) original). (emphasis in accusing criminal defendants from ecutors sup- facts undercuts the basic Majority Opinion tailoring without reference at by preventing prosecu- Id. such an accusation. porting principle of Mattson hand, clarified the other we at 496. On in its “truth-seek- aiding P.3d from tors that, supports a tailor- prosecutor where the 226 P.3d at 496. Id. at ing” function. than mere facts other ing accusation with testifies is “every defendant who Whereas “ will not an accusation presence at such “a comment that is ‘equally susceptible’ at 226 P.3d improper. be held in presence only to the defendant’s related ease, the voir dire re- the instant In not to his actual testimo- courtroom and argument that we mark is similar case in the instant ny[,]” the voir dire remark Mattson, in in Mattson. As permitted testimony. actual instead referred Walsh’s not a bare argument here was (emphasis in at 495 See id. at fact that buttressed accusation supra, the remark original). As discussed dire. The the voir observed Walsh juror in as- reasonable could have aided a here, therefore form “He was not of the was by providing an sessing Walsh’s in prohibited Mattson. which we he tailored” demeanor explanation Walsh’s Rather, facts relied on two sum, at issue here In the accusation stand. presence: mere wholly separate from Walsh’s Mattson because under 1) during the jurors mentioned that some to mat- supported it reference be an indicia eye contact would voir dire presence which mere ters other than Walsh’s 2) trustworthiness; main- Walsh entitled to consid- jury observed and was testimony. during his eye tained contact er. you “[S]ome the DPA stated: Specifically, Moreover, said, well, a case where the mentioned, you this is not I believe respond to know, eye. Okay, opportunity so me in the had no if looked defendant Mattson, you in one of In we ex- gets up tailoring here and looks each accusation. allowing generic accu- eye.” The pressed concern about testimony, and could therefore as- the defendant cannot Walsh’s “at a time when sations characteriza- whether the P.3d at sess them. Id. at respond” to They their own recollection. case, tion matched the voir dire instant since 496. In the whether de- determine Walsh’s could also prosecutor’s initial during the remark came including any efforts meanor on the have rebutted closing, counsel could defense stand — eye contact with them— part to make on by disput- closing argument in her own sincerity pandering. or indicative of or prosecutor’s characterization short, find this in- juror could a reasonable instance, aspects of Walsh’s pointing, for assessing credi- in Walsh’s formation useful supported on the stand demeanor bility. trustworthiness, testimony admitting un- facts, of his testi- or corroboration favorable precluding Respectfully, Indeed, mony by other evidence. not advance making argument does Majority Opinion at majority acknowledges, against gener- prohibition purpose of the -, did defense counsel 260 P.3d at See id. at tailoring ic accusations. closing, arguing that Walsh respond in her (“[Gjenerie tailor- accusations of at 496 drinking” “having been “upfront” about any way in in deter- aid the ing do not “speculat[e]” or urging the defendant has tailored mining whether a Moreover, prohibiting refer- experience in stitutes evidence. may jurors' common tor use Mattson, communications non-verbal testimonial tailoring ences to support accusation. of a Moreover, prohibition purpose of the we would not advance 226 P.3d at 497. Hawai'i at tailoring id. against generic See accusations. only evidence which is noted in did not state ("[G]eneric tailoring do not aid accusations of proper can be used to make the record determining any way whether a against prohibition accu- argument. Id. The simply has tailored his "solely” presence trial. which relied sations events.”) (emphasis supra, a true version of related 496. As discussed 226 P.3d at Id. at original). con- on the witness stand non-verbal demeanor by “looking reach a verdict [Walsh] trial creates tactical advan tage. Accordingly, such instruction thinking ... [that] the Kramer brothers given only requests should if the defense looked a lot nicer[.]” it. Finally, requiring I believe that the “unfa

vorable given inference” instruction to be testifies,

all cases where the defendant Ma at ---,

jority Opinion

373-74, may counterproductive. Assum tailoring argu avoids

ments, needlessly would instruction em

phasize defendant’s

Case Details

Case Name: State v. Walsh

Court Name: Hawaii Supreme Court

Date Published: Aug 23, 2011

Citation: 260 P.3d 350

Docket Number: 29790

Court Abbreviation: Haw.