Lead
Opinion of the Court by
We hold that (1) in the criminal trial of a defendant, the prosecution’s statements that a testifying defendant “benefitted” from his trial presence and, thus, is less credible because he heard the testimony of other witnesses and heard during voir dire that eye contact with the jurors was an indicator of trustworthiness, constitute prohibited “generic tailoring” arguments; (2) prohibited generic tailoring arguments are reviewable as plain error inasmuch as they affect a defendant’s substantial constitutional rights; (3) standard jury instructions regarding witness testimony and counsel’s arguments do not cure such improper arguments; (4) accordingly, whenever a defendant testifies, the jury must be instructed that the defendant has a right to be present during trial; and (5) in this case the error is not harmless beyond a reasonable doubt. Based on the reasons set forth herein, we affirm the June 10, 2010 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its May 26, 2010 published opinion
I.
On May 31, 2008, two groups of people were involved in an altercation outside of an all-in-one restaurant, sports bar, and nightclub called “Oceans Beach Bar and Grille” (the bar) in Kukui Mall in Kihei, Maui. One group consisted of Respondent, his sister Stephanie Walsh (Stephanie), and friends Lucy Mapson (Lucy) and Ilia Pikaki (Ilia). The other group consisted of Kapena Kramer (Kapena), his brother Iokepa Kramer (Kepa),
A.
Respondent was present throughout the trial, including voir dire during jury selection.
1. Lucy Lei Mapson and Stephanie Marie Walsh
On the evening in question, Stephanie and Lucy arrived at the bar at approximately 11:30 p.m. They left the bar when it closed, met Respondent and Ilia, and together they headed towards Lucy’s ear, which was parked near Paradise Photo. On the way to Lucy’s car, which was parked in front of the photo shop, Stephanie argued -with Respondent. They stopped when males parked in the row behind them started yelling at them. According to Stephanie, Kala “told [Respondent] to shut the F up[,]” and Respondent replied, “[MJind [your] own business[,]” to which Kala responded, “[S]hut the F up you stupid haole[.]”
According to Lucy, Kala, who was “angry [and] pumped up,” and Respondent then stood “[fjace to face[]” and yelled at each other. Five men attacked Respondent. To defend himself, Respondent “[t]hrew [a] couple [of] punehes[]” but was backed into a corner. Stephanie was with Respondent and sought to prevent the men from striking him. According to Stephanie, the men took Respondent into a corner and “[p]unehed and kicked and stomped on[]” Respondent “30 times[,]” and, as a result, Respondent had “bumps on his faee[,]” “big lumps” on “the back of his head” and a “black and blue[ ]” mouth. Respondent “curled up in a ball” about 15 feet from the car. He was punched and kicked for three or four minutes. No security guard became involved.
At some point, four men approached Ilia and started attacking him. Lucy attempted to prevent them from doing so, but she was hit in the face and fell to the ground. According to Lucy, the fight between Ilia and the men seemed to last for five minutes.
After the confrontation between Ilia and the other men had tapered off, Respondent escaped from the corner and was in the parking lot near Lucy’s ear. He was still being punched. At some point, Respondent “slipped out,” “ducked under[,] and moved away[,]” to where he was steps away from Ilia and a male who was yelling at Ilia and using his hands to explain a point. Respondent came up to the male, apparently Kape-na, and struck Kapena. The male fell and hit Lucy’s car. At the time Kapena was struck, other men were continuing to brawl. Lucy did not see any “bouncers” or security guards in the parking lot during the altercation.
Respondent fled and one of the bouncers from the bar held him on the ground. The police arrested Respondent, who, according to Lucy, had blood on his mouth and whose “head was lumped up pretty bad.”
2. Kapena Jonah Kramer
According to Kapena, he, Kepa, Kala, and another friend
At the time Respondent and Kala began to clash, Kala was ten to fifteen yards away from Kapena. Shortly after Kala and Respondent began to fight, Kepa, who was standing next to Kapena, became involved in a confrontation with Ilia. This confrontation occurred at the corner of Paradise Photo. Kepa and Ilia fought for about thirty seconds before Kapena stepped in and stopped Kepa from continuing. Kapena recalled that he attempted to calm his brother and Ilia. At that point Kapena had his hands up, indicating that the conflict had ended. Kapena did not recall the location of the females. The next thing Kapena remembered, he was “waking up lying on the ground” near the corner of the photo shop.
3. Kepa Kramer
Kepa was intoxicated due to his consumption of beers, whiskey, and tequila. When he, Kapena, Kala, and another friend left the bar and headed toward the vehicle in the parking lot, Kepa saw a male and a female arguing. Kepa did not see any security guards or staff near the male and female. One of Kepa’s friends asked Respondent, “[W]hy do you have to pick on a girl?” Kepa saw Kala argue and fight
According to Kepa, at that point, no other clashes were occurring. Kepa had begun to walk to his vehicle when Kapena was struck. Kepa did not see what happened but saw Kapena on the ground. Kepa chased Respondent and hit him in the face and head.
4. Respondent
Respondent and Ilia met Stephanie and Lucy outside the bar. Respondent, Stephanie, Lucy, and Ilia walked to the car, at which time Respondent argued with Stephanie. When Respondent was in front of Lucy’s car, “some guys across the street started yelling[,]” and Respondent “told them to mind their own business[,]” to which one of the men responded, “[S]hut the F up, you stupid haole.”
The men approached, and Kala started arguing with Respondent, who put up his hands because he believed Kala was going to attack him. Respondent initially was in front of Lucy’s car. He was punched and “everything kind of went black.” Respondent “tried to duck and kind of ran away,” but he was continually “side blinded[.]” He tripped on the curb six feet from the car and fell into the photo shop doorway. Respondent was kicked and struck “at least ten” times during the thirty-to-forty-five seconds he was in the doorway. Stephanie attempted to pull Respondent’s attackers away, which allowed Respondent to escape.
Respondent “scrambled out of the doorway[]” when he was struck on the back of his head and he fell forward seven to eight feet from Lucy’s car. Respondent made an effort to stand, but he was kicked and he “curled up” on the ground. Respondent attempted to leave, and “crawled[ ]” around the car. He “got up and stumbled and just swung a punch.”
According to Respondent, he “swung blindly, and just [attempted] to hit whoever was around [him] because [he] was getting attacked.” He put his head down and was in a crouched position, and “just swung blindly[.]” Respondent struck Kapena. Respondent struggled to move away but was hit in the back of the head. Respondent sought to defend himself, but the kicking and punching continued. At some point, the police arrested him.
According to Cooprider, the bar closes at approximately 1:15 a.m. Once customers leave, they may socialize in the parking lot. Bar employees attempt to clear the parking lot to “make sure no one is stumbling, ... fighting, [or] drinking[.]” Cooprider’s duties included overseeing activities and ensuring people were safe, and not “over intoxicated.” If patrons are stumbling and intoxicated, Cooprider and his staff find them a taxi or a ride home.
That night, everyone was out of the bar by 1:30. Cooprider walked, with another security guard, across the parking lot to the corner of Paradise Photo. There, he noticed Kape-na and another male standing close to each other and speaking loudly. Kapena was not with a group of people, but “was by himself[]” when he was taking with the male. According to Cooprider, the man conversing with Kapena appeared to be with Respondent.
He also noticed a “commotion” among a group consisting of mostly males and security guards twenty yards away from him. Security guards were “trying to get people to leave[,]” as if “there [had been] an altereation[.]” Cooprider did not feel that he had to help because the situation was “under control.” Instead, Cooprider turned his attention to the two men having a conversation. Cooprider was five or six feet from them, and although Cooprider was “concerned enough” to pay attention, he did not think them conversation would result in a physical confrontation. According to Cooprider, “it seemed like they were arguing about something” and were “a little passionate,” but the males’ hands were down at their sides. He did not notice any women.
About thirty seconds later, Cooprider observed Respondent, who was by himself, walk away from the commotion, towards the two men, in a “calm, cool, collective [sic]” manner. Cooprider observed Respondent move to the corner of Paradise Photo. Respondent “did not have any cuts, bruises, [or] bleeding whatsoever[.]” Respondent “walked approximately 30 inches in front of [Cooprider], and [ ] looked over to the left[,] saw [Kapena,] and hit him” “with everything he had[.]” According to Cooprider, Kapena “did not see [Respondent] eoming[.]” In his view, Respondent “blind sided a helpless person.”
After Respondent struck the man, he defended himself from approximately fifteen people who “eharge[d] him.” Cooprider noticed two women defending Respondent and pushing other men off of him. Cooprider and the security guards attempted to intervene, but the fight continued. At one point, Cooprider pulled Respondent off of someone else and put him on the ground.
6. Police officers
Maui police officers arrived at the scene at approximately 2:00 a.m. By that time, the affray had ended. Kapena was taken to the hospital where he was treated for two fractures. An officer noticed that Respondent had a cut lip and bruises.
B.
In closing argument, the prosecutor maintained that the “issue” was whether Respondent acted in self defense; Respondent did not act in self defense and the defense witnesses, Respondent, Stephanie, and Lucy, were not credible; particularly, Respondent was not credible because he had been present and heard voir dire and the testimony of other witnesses:
So, you find out a little bit more about the character of the individual we’re talking about.
Well, [Lucy] got CPR training, yada, yada, yada, but she doesn’t take the time to dial 911. What was brought up about her on the stand is if you notice, you folks had a chance to see her demeanor. When we’re asking about somebody, regardless of the reason why, even if they want to claim self-defense, there’s somebody, a boy injured on the ground, knocked out, blood coming out of his head with his jaw busted in two places. How does she react? Doesn’t that tell you a lot about the character of the individual?
Some of you during voir dire and jury selection were asked about what you would look at, and the defense went into greatdetail. Remember one thing that was asked by me to [Respondent]? You know, [Respondent], first of all, is entitled, since he’s on trial here, is entitled to hear and see all the witnesses. But with that becomes the facts [sic] that he’s benefitted from seeing all these witnesses. Before he got up on that stand, he saw each and every one of the witnesses, heard what they were going to say.
What’s important about that is not only that, he heard the voir-diring questions, which some of you had mentioned, I believe you said, well, you know, if they looked me in the eye. Okay, so he gets up here and looks each one of you in the eye. See how sincere I am? Does that mean you’re sincere? Well, what about, you know, Kepa got up there, and he was nervous. Remember Iokepa and Kapena, they had never been in trouble before and never testified before. They get up here. They were nervous. Yeah, think about it. You have to come up here for the first time in this kind of atmosphere, you’re going to be nervous.
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• • • [W]hy it is important that you remember that testimony that was given to you last week from [Cooprider], the only sober, the only independent witness that was there, what he saw, what axe did he have to grind. We’ll get into that.
But the fact of the matter is it is important that when the [cjourt has read you those instructions about ... the credibility of witnesses, yes, you take into consideration all those items such as their appearance and demeanor, their manner of testifying, the intelligence, candor and frankness, the lack thereof, the interest in [sic] bias and motives for testifying, the opportunity for acquiring information, the probability or improbability of the witness’ testimony!,] the extent to which a witness is supported or contradicted by other evidence and supported [sic] the extent to which a witness gave contradictory statements and whether at trial or at other times and all other circumstances surrounding it.
But don’t get fooled into a position where somebody can look you in the eye, they must be telling the truth. If you know how to look somebody in the eye, you can still lie. If we look at the independent witnesses [sic] [Cooprider], what axe did he have to grind? What does he tell you? It corroborates everybody’s testimony, even corroborates even [sic] [Respondent’s] own testimony. What does [Coopri-der] say? He’s sitting there. He watches [Respondent], not, oh, crawling on the ground getting up....
(Emphases added.)
Respondent’s counsel in part responded to the prosecutor’s attack on Respondent’s credibility by emphasizing that Respondent had been “upfront” and had “told ... the truth.” Respondent’s counsel urged the jury not to “speeulat[e]” or reach a verdict by “looking at [Respondent] and thinking ... [that Kapena and Kepa] looked a lot nicer[.]” In rebuttal, the prosecutor maintained, among other things, that Respondent “was lying” and, in contrast, “Cooprider did tell ... the full story[.]”
On January 26, 2009, the jury found Respondent guilty.
II.
A.
On appeal to the ICA, Respondent argued, inter alia,
Both parties relied on Portuondo v. Agard,
Justice Stevens concurred, disagreeing with the majority’s implicit endorsement of the prosecutor’s argument which, in his view, demeaned the truth-seeking function of the adversary process, violated the defendant’s individual dignity, and ignored the presumption of innocence. Id. at 76,
The Court’s final conclusion, ... that the argument survives constitutional scrutiny does not, of course, deprive States or trial judges of the power either to prevent such argument entirely or to provide juries with instructions that explain the necessity, and the justifications, for the defendant’s attendance at trial.
Id. (emphasis added). Justice Ginsburg dissented, concluding that the majority’s holding transformed the defendant’s presence at trial “from a Sixth Amendment right into an automatic burden on his eredibility[,]” id. at 76,
The prosecutorial comment at issue, tied only to the defendant’s presence in the courtroom and not to his actual testimony, tarnishes the innocent no less than the guilty. Nor can a jury measure a defendant’s credibility by evaluating the defendant’s response to the accusation, for the broadside is fired after the defense has submitted its case.
Id. at 77-78,
According to the Portuondo dissent, generic tailoring comments occur when the prosecutor uses “the mere fact of the defendant’s presence at his trial as the basis for impugning his credibility.” Id. at 78,
Justice Ginsburg noted that several state courts had found it improper for prosecutors to make accusations of tailoring based solely on “the defendant’s constant attendance at trial.” Id. at 83 n. 5,
Respondent “urge[d the ICA] to reject the holding of the Portuondo majority, as its reasoning does not adequately preserve a criminal defendant’s right to confrontation[.]” According to Respondent, “[ojther state courts have addressed this issue and concluded that prosecutorial comments made during closing arguments regarding the presence of criminal defendants during trial do, in fact, infringe upon a defendant’s right to confrontation.” (Citing State v. Jones,
After the briefs were submitted, this court decided Mattson, which addressed the application of Portuondo in this jurisdiction. The Mattson majority essentially adopted the reasoning of Justice Ginsburg’s dissent in Portuondo and held that, “it would be improper under article I, section 14 of the Hawai'i Constitution, for the prosecution to make generic accusations during closing argument that a defendant tailored his testimony based solely on the defendant’s exercise of his constitutional right to be present during the trial.”
According to the majority, the prosecutor in Mattson did not make a generic tailoring argument. In Mattson, two witnesses testified that the defendant had threatened an individual with a knife. Id. at 315-17,
He told you he lied before. He had a chance to sit through the evidence. He had to make his story gibe [sic] with what you’ve heard. What is in evidence.... He sat through the evidence. There is a 911 tape. [A witness’s] statement. [Another witness’s] statement. Based on all that, he is not telling the truth. All of a sudden he remembered that he grabbed that knife.
Id. (some emphases added, some emphases in original). According to the Mattson majority, because the prosecutor “identified and relied upon specific evidence adduced at trial” in addition to the defendant’s presence when attacking the defendant’s credibility, the prosecutor did not improperly argue the defendant “tailored his testimony based solely on his presence at trial.”
In a similar vein as the majority, the Matt-son dissent noted that generic comments “debase the ‘truth-seeking function of the adversary process,’ violate the ‘respect for the defendant’s individual dignity,’ and ignore ‘the presumption of innocence that survives until a guilty verdict is returned!.]’ ” Id. at 340,
Hence, generic tailoring comments on summation “suggesting that a defendant tailored his testimony inverts those rights, permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees.” Id. at 340,
In sum, the prosecution should be prohibited from “referring to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony.” Id. at 328,
III.
Following the rule established in Mattson, the ICA majority in this case found the prosecutor’s remarks were “a generic accusation” that Respondent tailored his testimony
Although the ICA majority analyzed the prosecutor’s comments as a whole, the concurrence reasoned that some of the prosecutor’s comments were proper and some were not. The concurrence agreed that the prosecutor’s remarks that Respondent “benefitted from seeing all these witnesses[]” because “[bjefore he got up on that stand, he saw each and every one” of them, were improper because they were not “premised on any evidence presented during trial to support the inference that [Respondent] had tailored his testimony based on what he had heard.” Id. at 290-91,
However, the concurrence maintained the prosecutor made the “separate point[]” that Respondent, “having heard some of the jurors state that they took eye contact as indicative of truthfulness[,] actually took their cue and looked at the jurors during his testimony.” Id. at 291,
IV.
Petitioner applied for certiorari, asking
[w]hether the ICA gravely erred when it held, that the prosecutor’s comments during closing argument, implying that [Respondent] tailored his testimony to be more credible after being present at jury voir dire and during other witnesses’ testimony, constituted plain error and thus, violated [Respondent’s] State of Hawai'i Constitutional right to be present during trial.
V.
In support of the question presented in its Application, Petitioner argues that (1) the alleged improper comments did not constitute plain error affecting Respondent’s substantial rights; (2) the prosecutor “did not rely solely on [Respondent’s] exercise of his right to be present at trial[,]” but referred to “specific evidence adduced at trial” and a jury instruction regarding the credibility of
VI.
A.
Petitioner’s first argument that the ICA gravely erred by reviewing the statements under plain error is incorrect because the statements affected Respondent’s constitutional rights to confront witnesses, to be present at trial, to testify, and to a fair trial. See State v. Miller,
“The purpose of plain error is to allow the court to vindicate substantial rights and to uphold the integrity of the judicial system, regardless of the venue in which the appellant failed to present the argument,” Miller,
B.
In holding that it is improper for the prosecution “to make generic” tailoring accusations during closing argument,
Generic accusations of tailoring also “discourage a defendant from exercising his
Additionally, “[i]t is well settled that an accused has a fundamental right to be present at each critical stage of the criminal proceeding.” Onaka v. Onaka,
Finally, the right to a fair trial is a substantial right for which this court has reviewed alleged violations of plain error. State v. Rapoza,
C.
In support of its first argument, Petitioner maintains that the prosecutor’s statements did not “expressly” accuse Respondent of tailoring, and, therefore, the ICA extended Mattson to “tailoring by implication.” But there are no specific words or phrases that must be employed to accuse a defendant of tailoring. In Mattson, this court found the prosecutor “made an accusation that [the defendant] tailored his testimony to the evidence
In Jones,
I suggest when you evaluate the credibility of these witnesses and their testimony you also consider something very important; the only witness who testified in this case who heard everybody else’s testimony before he gave his reason was the defendant. [The defendant] had the benefit of knowing what everybody else said before he testified. What opportunity did that give [the defendant] to testify as he did?
Because these comments were “tied only to the defendant’s presence in the courtroom and not to his actual testimony[,]” Portuondo,
In Hart v. United States,
Does that appear ridiculous? ... [T]he most amazing thing happened ... during the course of [the defendant’s] testimony. He started rapping and telling the story ... just popping into his head as he was going along.... He sits there and then he says the most incredible thing.... Does that make any sense? ... Does that sound like a person telling the truth? Gets on the stand and tells the truth? You will have to decide that.... Would you bank on that story?
According to Hart, “[t]he likely inference from the prosecutor’s remarks in [that] case was that he believed [] [the defendant’s] testimony was fabrieated[,]” which was “especially troubling” because of the prosecutor’s “reference to [the defendant’s] listening to other testimony at trial.” Id.
Similar to Jones and Hart, here, the prosecutor accused Respondent of tailoring his testimony when, in discussing credibility, she argued that Respondent “benefitted” from hearing the testimony of the other witnesses before he testified. Manifestly the prosecutor’s remarks drew “the jury’s attention to [Respondent’s] presence at trial and his resultant opportunity to tailor his testimony[,]” Martinez v. People,
It also cannot be disputed reasonably, as the ICA majority said, that “the prosecutor’s argument[ ] ... was such that the jury was left with the inescapable conclusion that because [Respondent] exercised his right to be present during ... other witnesses’ testimony, he was tailoring his testimony.” Walsh,
VII.
Petitioner’s second argument contends the prosecutor “did not rely solely on [Respondent’s] exercise of his right to be present at trial[,]” but (1) “included references to specific evidence adduced at trial,” when she “immediately argued why the jury should believe [Kapena and Kepa] over [Respondent,]” subsequently argued that Cooprider was credible, and tried to “discredit” Respondent, and (2) reminded the jury of the standard jury instruction on evaluating witnesses.
A.
The prosecutor’s closing argument built upon the contention that Respondent was less credible because of his attendance. Immediately after stating that Respondent “benefitted” from his presence by hearing the witnesses, the prosecutor continued, “[w]hat’s important about that[, i.e., Respondent’s presence,] is ... [that] he heard [ ] voir-dir[e]” where allegedly it was mentioned that a witness appears credible by maintaining eye contact with the jurors. According to the prosecutor, although Respondent supposedly “look[ed] each one of [the members of the jury] in the eye[,]” and appeared “sin-eere[,]” Kepa and Kapena, who had “never testified before[]” and were “nervous” and “inexperienced testifiers,” actually “told it like it was.” The prosecutor differentiated Respondent from Kepa and Kapena, suggesting that Respondent may have appeared “sincere” because of information gained through other witnesses’ testimony and voir dire.
B.
Immediately after arguing that Kapena and Kepa were believable whereas Respondent was not, the prosecutor discussed the standard jury instruction on witness credibility, stating, “But the fact of the matter is that [the jury may consider] the credibility of witnesses, [taking] into consideration all those items such as their appearance and demeanor, their manner of testifying, ... [and] the opportunity for acquiring information[.]”
In doing so, the prosecutor told the jury that even though Respondent may have appeared truthful, Respondent should not be believed because he had employed knowledge about the jury, that he had gained during voir dire. In essence, the prosecutor told the jury to “assess [Respondent’s] credibility in [the] light of this improper comment[,]” Hemingway,
Following that assertion, the prosecutor’s comment, “But John Cooprider tells it like it is[,]” again linked Respondent’s presence during voir dire and the testimony of other witnesses with Respondent’s lack of credibility, thereby “bolstering” Cooprider’s testimony. The prosecution’s assertion that Respondent’s credibility
VIII.
A.
Petitioner’s third argument maintains the prosecutor’s argument that Respondent “tailored” his demeanor based on juror answers during voir dire was not improper. In this regard, the ICA concurrence concluded that the prosecutor’s argument was proper because it “was not merely a generic accusation of tailoring, but was based on [Respondent’s] actions after he witnessed the juror’s comments.” Walsh,
Ordinarily, juror statements during voir dire are not evidence. See State v. Ashley,
As noted before, there is no record of the voir dire of the venire herein.
A defendant’s right to be present during voir dire is analogous to a defendant’s right to be present during testimony of witnesses, and, thus, a defendant’s mere presence during voir dire cannot be used against the defendant to attack his credibility. Cf. Mattson,
Significantly, there is nothing in the record with respect to Respondent’s demeanor during his testimony, or any confirmation that Respondent looked the jurors “in the eye” or, if he did, the nature of the gaze. But more to the point, the “action” of looking at the jury when questioned on the witness stand in and of itself is not an unnatural or extraordinary act and, thus, is “ ‘conduct as consistent with innocence as with guilt[.]’ ” Mattson,
It is also manifest that the prosecutor’s comments regarding Respondent’s manner of testifying transformed his presence at trial into an “automatic burden on his credibility,” Portuondo,
The ICA concurrence quoted People v. Edelbacher,
B.
As recounted, Petitioner argues that the prosecutor’s reminder to the jury of the standard instruction on evaluating witness testimony during her “eye contact” argument was proper. However, that argument is unavailing because the standard jury instruction on witness testimony did not counteract the improper inference that Respondent was less credible because of his presence, inasmuch as the instruction “made no mention of the prosecutor’s accusations of tailoring.” Daniels,
Because the prosecutor argued Respondent’s trial presence when referring to the instruction, the jury could draw the conclusion that Respondent’s “means and opportunity of acquiring information,” as stated in the instruction, see supra note 27, included his presence throughout the trial. Similarly, in Daniels, the defendant failed to object to the prosecutor’s improper tailoring comments during summation.
The court in the instant case also told the jury, albeit prior to the closing arguments, that the jury may consider the “witnesses] means and opportunity of acquiring information[,]” when assessing credibility. Because the jury was instructed to consider a witness’s “means” and “opportunity” of obtaining information, the charge “did not cure the prosecutor’s comments.” Id. In light of the standard instruction on witness testimony, and to mitigate what may be a jury’s “natural and irresistible” inclination to “have in mind and weigh in the balance” that the defendant heard the testimony of others who preceded him, Portuondo,
Additionally, in Daniels the trial court instructed the jury that “[a]ny arguments, statements, remarks in the opening or summations of counsel are not evidence and must not be treated by you as evidence.”
In Daniels, because the failure to give an adequate curative instruction amounted to plain error, the case was remanded for a new trial.
Our holding does not hamstring the prosecution’s ability to comment directly on the evidence presented. In that regard, the prosecution is free to refer to the specific inconsistencies and contradictions in a defendant’s testimony or with other evidence, without referring to his presence at trial. Even in eases where there are no inconsistencies, the “close or perfect symmetry between a defendant’s testimony and other witnesses’ testimony, or other evidence of tailoring, may prompt the jury’s scrutiny.” Daniels,
IX.
Petitioner’s third argument maintains the prosecutor’s comment that Respondent looked the jury in the eye was “an attempt by [the prosecutor] to discredit [Respondent] by the manner in which [Respondent] testified.” (Emphasis in original.) But, as indicated supra, such a comment was improper because the suggestion that Respondent’s demeanor was fashioned to conform with comments heard during voir dire amounted to an attack on Respondent’s credibility on the basis of his trial attendance.
Furthermore, comment on the “manner” of testifying that rests on the defendant’s being at trial should be prohibited. See Hemingway,
Because “[t]here was no testimony that the defendant and [the witness] had collaborated, or that the defendant purposefully used the timing of his testimony to ensure his story coincided with that of [the witness,]” the inference that the defendant was not credible “was not drawn from the testimony, and was improper.” Id. Similarly, in the instant case, the prosecutor’s comment on Respondent’s alleged manner in presenting his testimony, i.e., looking the jury in the eye, did nothing to “cast[ ] doubt on the substance” of Respondent’s testimony, but erroneously urged that Respondent was less believable as a result of having been at voir dire. Id.
X.
Petitioner’s fourth argument, that the jury “likely did not summarily conclude that [Respondent] tailored his testimony” because the jury, during deliberations, inquired about Cooprider’s location during the incident, is unpersuasive. According to Petitioner, the question shows that the jury “did not simply dismiss [Respondent’s] testimony based upon an implication of tailoring, but properly weighed all of the evidence presented.” First, this jury question is not determinative of whether a prosecutor’s improper comments affect a defendant’s substantial rights. Second, the question does not indicate whether the jury disregarded the improper tailoring comments or not. Rather, the jury question may indicate that the jury was considering whether Cooprider was credible; or the jury could have been questioning whether Cooprider had the best view of the incident, as opposed to Stephanie or other witnesses. In either instance, the prosecutor’s comments on Respondent’s credibility would have weighed improperly in the balance of the jurors’ deliberations.
XI.
Petitioner asserts in its fifth argument that, assuming the prosecutor’s statements constituted misconduct, “the evidence against [Respondent]” was overwhelming and weighs against remanding for a new trial. To determine whether there is a reasonable possibility that the misconduct contributed to the conviction, this court considers (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant.
A.
As to the first factor, the nature of the misconduct, the effect of the misconduct is assessed.
Additionally, the statements diverted the jury from its duty to decide the instant case on the evidence, by “invit[ing] the jury to convict on the basis of conduct as consistent with innocence as with guilt[.]” Mattson,
B.
As to the second factor, the nature of the curative instruction, the court gave no curative instruction. Thus, this factor also weighs in Respondent’s favor. Wakisaka,
C.
As to the third factor, the strength of the evidence, when a prosecution’s case against the defendant is not overwhelming but turns on the credibility of the defendant, it is likely that the error might have contributed to the conviction. See State v. Pacheco,
Cooprider testified that Respondent punched Kapena for no reason, whereas Stephanie, Lucy, and Respondent testified that Respondent was attempting to flee and to defend himself from the attackers. As the prosecutor stated in closing argument, “[t]he issue [was whether Respondent struck Kapena] in self-defense.”
A jury is instructed to evaluate the weight and credibility of a witness’s testimony, considering, among other things, “the extent to which the witness is supported or contradicted by other evidenee[.]” HAWJIC No. 3.09. At points, Cooprider’s testimony was contradicted by the testimony of the prosecution’s other witnesses, Kapena and Kepa, in addition to the testimony of Lucy, Stephanie, and Respondent. Cooprider testified that he noticed Kapena had his hands at his sides during his argument with Ilia. In contrast, Kapena testified that he “had [his] hands up[,]” and Lucy believed “the [male] had his hands like this (indicating), and he was explaining things, how would you talk to somebody,
Cooprider indicated that Kapena was alone, whereas Kapena and Kepa explained that they were together. Cooprider also said that Respondent was “completely by himself[,]” whereas Kapena, Kepa, Lucy, and Stephanie testified that Respondent was near’ Stephanie and Lucy during the incident.
Cooprider noted that Respondent came from a “commotion.” However, Cooprider also testified that “security guards” were involved in the “commotion” and were “brushing people away[,]” “trying to get people to leave.” In contrast, Kapena testified that there were no security guards in the area. Lucy testified she did not see any bouncers in the parking lot. Stephanie testified that no security guard, bouncer, police officer, or any individual assisted them.
Finally, Cooprider testified that Respondent “walked up [to Kapena in a] calm, cool, eollective[ ][sie]” manner, which was seemingly inconsistent with the testimonies of Kapena, Kepa, Stephanie, and Respondent. Kapena confirmed that he recalled Respondent and Kala “wrestling on the ground.” According to Kapena, Respondent and Kala were “fighting.” Kepa stated that Respondent fought with Kala. Stephanie testified that Respondent, after being beaten in a corner, escaped and then fell “[s]teps away” from Ilia and Kapena, where he continued to be beaten while he was on the ground. According to Stephanie, Respondent “stumbled[,]” slipped out, and at that point, punched Kapena. Respondent testified that he was “crawlfing] and stumblfing]” in an attempt to escape from his attackers. After he “crawled and stumbled” to the car, he “got up” and “just swung blindly[ ]” because he “was getting attacked.” Cooprider also testified that Respondent had no marks on him from the fight, but Stephanie testified that he had “bumps on his facet,]” big lumps on “the back of his head” and a “black and blue[]” mouth from the blows he had received before he struck Kapena.
Thus, Cooprider’s testimony concerning Respondent’s demeanor and physical condition contrasted sharply with the circumstances related by the other witnesses. No one, not even Petitioner’s other witnesses, except Cooprider, testified that Respondent was “calm, cool, and eolleet[ed],” and had no marks on him from the altercation. Cooprider’s testimony was “contradicted by other evidence,” which raised an issue of whether his testimony was “worthy of belief.” See Black’s Law Dictionary at 423 (defining credibility as “[t]he quality that makes something (a witness or some evidence) worthy of belief’).
Finally, had the prosecutor not tied Respondent’s credibility to his presence at trial, the jury “may well have harbored a reasonable doubt,” Pacheco,
With respect to this defense, State v. Augustin,
In this regard, Respondent’s credibility was at the crux of his defense. The jury must “consider the circumstances as [the defendant] subjectively believed them to be at the time he tried to defend himself.” Id. at 132,
Pacheco,
As to the strength of the evidence, this court “observe[d] that whether the prosecution succeeded in establishing that [the defendant] possessed the requisite state of mind at the time he fled ... hinged entirely upon whether the jury believed or disbelieved [the defendant’s] testimony and, thus, depended upon winning a credibility contest.” Id. at 96,
had the jury believed [the defendant’s] testimony, it may well have harbored a reasonable doubt as to whether [the defendant] had possessed the state of mind requisite to committing the offense of second degree escape. As such, ... we cannot say that the evidence against [the defendant] was so overwhelming as to render the [prosecutor’s] personal disparage-ments of him and vigorous and improper attack on his credibility harmless beyond a reasonable doubt.
Id. at 97,
Similarly, in the instant case, but for the prosecutor’s “improper attack on his credibility[,]” id., the jury could have found that Respondent reasonably believed he was under continuous attack and acted to defend himself, raising a reasonable doubt as to whether Petitioner had disproved Respondent’s defense of self defense beyond a reasonable doubt. In short, like Pacheco, the evidence was not so overwhelming so as to overcome the prosecutor’s statements, which served to discredit Respondent and bolster the credibility of the prosecution’s witnesses. Therefore, all three factors weigh in Respondent’s favor and there is a reasonable possibility that the error might have contributed to the conviction. State v. Maluia,
XII.
For the foregoing reasons, the ICA’s June 10, 2010 judgment is affirmed, and the case is remanded to the court for a new trial in accordance with this opinion.
Notes
. The opinion was authored by Associate Judge Lawrence M. Reifurth and joined by Presiding Judge Daniel R. Foley. Associate Judge Alexa D.M. Fujise filed a separate concurring opinion.
. The Honorable Joseph E. Cardoza presided.
. HRS § 707-711(1)(b) provides that "[a] person commits the offense of assault in the second degree iff ] ... [t]he person recklessly causes serious or substantial bodily injury to another[.]”
. A transcript of the voir dire proceedings is not part of the record. Voir dire is a "preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury.” Black’s Law Dictionary 1710 (9th ed. 2009).
. Because Lucy and Stephanie testified to a similar version of the events, their testimony are discussed together.
. "Haole” is a Hawaiian word for a white person or "Caucasian.” Mary K. Pukui & Samuel H. Elbert, Hawaiian Dictionary 58 (rev. ed. 1986).
. Kapena stated that approximately ten friends had been at the bar to celebrate Kepa's bachelor party.
. On cross examination, Kepa changed his story and stated that he "never saw [the fight between Respondent and Kala] get physical.”
. Respondent also argued that the prosecutor’s statements during closing argument deprived Respondent of his rights to due process and a fair trial, and that the court "plainly erred in failing to instruct the jury that [Respondent] had a constitutional right to be present throughout trial, ... and that the jury must not draw any unfavorable presence based simply on his presence throughout the trial."
. The defendant argued that his Fifth Amendment right to testify on his own behalf was violated.
. The defendant argued that the prosecutor's comments unlawfully burdened his Sixth Amendment rights to be present at trial, to testify on his own behalf, and to be confronted with the witnesses against him. Id.
.The defendant argued that because New York law required him to be present at trial, the prosecution violated his right to due process by commenting on that presence. Id. at 74,
. In Jones, the prosecutor during closing argument stated that "[the defendant] had the benefit of knowing what everybody else said before he testified. What opportunity did that give [the defendant] to testify as he did?”
. In Person, the defendant’s attorney, during summation, argued that there were several deficiencies in the prosecutor’s case. During summation, the prosecutor questioned whether "it [is] just a little bit odd that after sitting here for six days and listening to all the testimonyL the defendant] comes in and gives a completely tailored cover story covering every single aspect” of the case.
. In Elberry, the prosecutor in his closing argument stated that inconsistencies in stories were natural among witnesses who had not lied and who had not heard one another’s testimony.
Did any of the witnesses have the opportunity to see exactly how every other witness testified in this case and then tailor their testimony to that evidence? Some of you are shaking your heads. One person did, one witness did, one witness saw every other person testify, the defendant (pointing).
Id. Defense counsel objected, and the court gave a curative instruction. Id. at 43. The Appeals Court of Massachusetts, relying on Person, held that the prosecutor’s remark was "out of bounds and should not have been made[,]” but the curative instruction, to which no party objected, "disposed of the matter.” Id.
. Johnson noted that a prosecutor's comments that the defendant had a “unique opportunity to be present at trial and hear all the testimony against him” impermissibly infringed on the defendant’s Sixth Amendment rights under the United States Constitution.
. The concurrence herein contends that Matt-son prohibited only "bare accusationfs]” or argument in the form of "fh]e was here, therefore he tailoredf.]” Concurring opinion at -,
. The Mattson dissent would have held that "all accusations of tailoring at any stage of the trial, including cross examination and summation, im-permissibly burden a defendant’s right to be present at trial and to confront witnesses against him.”
. With respect to a prosecutor’s specific tailoring remarks during summation, the Mattson dissent noted that allowing such comments "afford no meaningful protection of a criminal defendant’s constitutional right to confrontation.” Id. at 343,
.HRPP Rule 43(a) generally provides that in felony cases ”[t]he defendant shall be present at the arraignment, at the time of the plea, at evi-dentiary pretrial hearings, at every stage of the trial including the impaneling of the jwy and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” (Emphasis added.)
. Respectfully, there is no evidence that Respondent "actually” "took [the juror(s)] cue,” assuming that there was such a "cue.”
The principle that appellate review requires a complete record of the events relied upon is salutary and well-established, irrespective of whether the demeanor challenged on appeal was that of a witness on the stand or that of a witness off the stand, or whether the case was a criminal or civil one. Consequently, if a litigator seeks appellate review based on particular "demean- or" that occurred during trial, when there is no record that such occurred, it is not unexpected that it would be "very difficult for an appellate court to review an issue that is not grounded in the record[.]” Schuler,
. The right of a defendant to testify is guaranteed by sections 5, 14, and 10 of article I of the Hawai'i Constitution. Tachibana v. State,
. Other jurisdictions have held that the right to be present is a fundamental or substantial right. See Rushen v. Spain,
. Hence, under the circumstances, it was not necessary that the prosecution also argue that Respondent was able to think about "what [he was] going to say” and how he would "fit [his testimony] into the evidence[,]” Portuondo,
. Although the concurrence agrees that the prosecution’s statement regarding Respondent’s "benefit[]” is improper generic tailoring under Mattson, it maintains that such a conclusion is “dispositive," and, therefore, the remainder of the prosecutor’s closing argument need not be discussed. Concurring opinion at -,
. The concurrence characterizes the voir dire argument as made "in the context of a larger argument regarding the credibility of the witnesses, and in particular, their demeanor while testifying." Concurring opinion at ---,
.The concurrence maintains that the "truth-seeking function[]” of the jury was furthered by "focusing the jury's attention on ... [Respondent's] demeanor[,]” and providing an explanation for Respondent’s demeanor "based on more than” his presence throughout trial. Concurring opinion at -,
.Hawaii Jury Instructions Criminal (HAWJIC) § 3.09 states as follows:
It is your exclusive right to determine whether and to what extent a witness should be believed and to give weight to his or her testimony accordingly. In evaluating the weight and credibility of a witness’s testimony, you may consider the witness’s appearance and demeanor; the witness’s manner of testifying; the witness’s intelligence; the witness’s candor or frankness, or lack thereof; the witness’s interest, if any, in the result of this case; the witness's relation, if any, to a party; the witness’s temper, feeling, or bias, if any has been shown; the witness's means and opportunity of acquiring information; the probability or improbability of the witness’s testimony; the extent to which the witness is supported or contradicted by other evidence; the extent to which the witness has made contradictory statements, whether in trial or at other times; and all other circumstances surrounding the witness and bearing upon his credibility.
Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit such testimony. In weighing the effect of inconsistencies or discrepancies, whether they occur within one witness’s testimony or as between different witnesses, consider whether they concern matters of importance or only matters of unimportant detail, and whether they result from innocent error or deliberate falsehood.
(Emphasis added.)
. The prosecutor’s reference to the jury instruction did not mitigate any impropriety. The directive in the instruction that the jury can consider the demeanor and appearance of witnesses was undermined by the prosecutor's following warning that the jury should not "get fooled into a position where because somebody can look you in the eye, they must be telling the truth.” The jury instruction served only as a platform to state that Respondent’s demeanor was feigned based on information received during voir dire. Thus, the prejudicial impact of the argument was exacerbated, not mitigated, by the reference to the jury instruction.
. It is established that a prosecutor may attack the credibility of a defendant who chooses to testify. Apilando, 79 Hawai’i at 149, 900 P.2d at 142 ("This court has held that, when a defendant takes the stand to testify, his or her credibility can be tested in the same manner as any other witness.”). In that regard, "[t]he credibility of a witness may be attacked by evidence of bias, interest, or motive.” Hawai'i Rules of Evidence Rule 609.1(a) (1993). Thus, a prosecutor may challenge the defendant’s credibility by commenting on evidence of bias, interest, or motive. But here, the prosecutor suggested that Respondent was not believable due to his attendance at voir dire and the testimony of other witnesses at trial. Remarking that Respondent has "benefit-ted” from being at trial, including voir dire, is not a comment on any evidence of bias, interest, or motive.
. According to the concurrence, Respondent could "rebut [Petitioner's] argument during his own closing, by suggesting that his demeanor was in fact sincere, by contrasting it to the demeanor of other witnesses, or otherwise!,]” concurring opinion at -,
. The concurrence maintains that Respondent had the of requesting a transcript of voir dire. Concurring opinion Hawai'i Rules of Appellate Procedure (HRAP) Rule 10(b)(1)(A). first, the purported statements of potential jurors were not evidence but were, nonetheless, relied on by the prosecution Respondent’s truthfulness. In that instance the prosecutor incorrectly sought to impeach Petitioner based on statements not in evidence.
Second, the voir dire transcript was unnecessary argument. HRAP 10(b)(1)(A) provides that an appellant, here, Respondent, must "request ... a[ ] transcript of such parts of the proceedings as the appellant [ (Respondent) ] deems necessary that are not already on file.” (Emphasis added.) In the instant case. Petitioner argued on appeal that the ICA should disregard Respondent’s argument concerning voir dire inasmuch as Respondent had not filed a transcript of the voir dire. However, Respondent did not deem the transcript of voir dire "necessary,” arguing before the ICA that the juror statements were not evidence and the prosecutor’s comments on Respondent’s ability "to listen to the jurorsf]” "did not connect any of its accusations to specific evidence of tailoring at trial[,]” but instead, made a general accusation “that relied on innuendo rather than evidentiary support.”
Respondent maintained that "the substantive content of voir dire is entirely irrelevant” inasmuch as the voir dire transcript would "either support or contradict the prosecutor’s recollection of the events,” which, in either event, "would not affect the validity of [Respondent’s] arguments.” According to the concurrence, Respondent took the “position[]” that he did not dispute the prosecutor’s description of voir dire, a position "contrary” to this opinion’s assertion that there was no "verification” of what was said during voir dire. Contrary to the concurrence’s assertion, Respondent’s position was not that he “verified,]” concurring opinion at - n. 1,
Finally, the concurrence quotes from Ek v. Boggs,
. The concurrence argues that Mattson did not state that only evidence "which is noted in the record’’ can be used to make a proper tailoring argument, and therefore, it is proper to refer to a defendant’s demeanor or jury statements, even if they are not in the record. Concurring opinion at - n. 4,
. With all due respect, the concurrence’s argument that the voir dire remark in the instant case is "similar” to the argument that was permitted in Mattson is incorrect. Concurring opinion at -,
. The concurrence agrees that the voir dire statements are not in evidence, concurring opinion at -,
.The concurrence states that a defendant’s demeanor on the stand is "information which both the jury and counsel were able to observe at trial and which the juiy can appropriately consider as evidence in its deliberations^]” Concurring opinion at ---,
However, an explanation of the defendant’s demeanor simply tied to his observations at voir dire is not a proper ground upon which to attack credibility. The concurrence fails to cite any case that allows a prosecutor to argue that a defendant tailored his demeanor to conform to comments made by the venire during voir dire.
. The concurrence asserts that this opinion "undercuts the basic principle of Mattson " inasmuch as the prosecutor's voir dire remark "could have aided a reasonable juror in assessing [Respondent’s] credibility by providing an explanation for [his] demeanor on the stand.” Concurring opinion at ---,
. The concurrence suggests that requiring counsel to note demeanor on the record, if to be used in a tailoring accusation, will result in "additional interruptions” during trial by counsel seeking to note for the record a witness's demeanor, and asserts that “some non-verbal cues” are "not susceptible to verbal description.” Concurring opinion at -,
. Similar to the ICA concurrence in Walsh, the concurrence maintains that counsel may comment on a criminal defendant’s demeanor while on the stand, citing numerous cases that involve comment on a testifying defendant's demeanor. Concurring opinion at ---,
. The prosecution may comment on the defendant’s testimonial demeanor at trial. See Edelbacher,
. The concurrence maintains that such an instruction should be given only when the defense requests it, because where the prosecutor does not make tailoring arguments, the instruction "would needlessly emphasize to the jury that the defendant's presence at trial creates a tactical advantage." Concurring opinion at -,
Moreover, "the trial courts, not the parties, have the duty and ultimate responsibility to insure that juries are properly instructed[.]” Id. at 415,
. See HAWJIC 3.03, which states in part that "[statements or remarks made by counsel are not evidence. You should consider their arguments to you, but you are not bound by their recollections or interpretations of the evidence."
. The requirement of such an instruction is also a salutary one inasmuch as a defendant charged with a felony is obligated to be present at all stages of trial, including "the impaneling of the jury.” HRPP Rule 43(a). HRPP Rule 43 compounds the burden placed on the right to testify. In the absence of an instruction, mandated presence by court rule becomes a detriment to a defendant because the prosecution is otherwise free to impugn a defendant’s credibility should he choose to testify. See Mattson,
. In that regard, "[o]nce all the evidence has been presented, it becomes the court’s fundamental duty to properly instruct the jury on the law[.]” Montalvo v. Lapez,
.Other jurisdictions have required that an instruction regarding presence be given. See State v. Rose,
. Respondent's counsel did not object to the misconduct at trial. "If defense counsel does not object at trial to prosecutorial misconduct, this court may nevertheless recognize such misconduct if plainly erroneous.” Wakisaka,
. Of course, as stated supra, the prosecution’s summation infringed on several of Respondent's constitutional rights.
. The prosecutor did state that Respondent is entitled to "hear and see” the witnesses. However, this statement was undermined by the prosecutor’s comment that followed, in which she stated, "But with that becomes the fact that [Respondent] benefitted from seeing all these witnesses.” The reference to "hear and see” served only as the starting point to emphasize that, as a result of his presence, Respondent was not to be believed.
. HRS § 703-304 (1993), the self defense statute, states in pertinent part as follows:
Use of force in self-protection. (1) Subject to the provisions of this section and of section 703-308, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.
(Emphasis added.)
. HRS § 703-300, which defines "bel means reasonably believes[,]” and applies the respect to justification for the use of force protection of property, and in the protection § 703-300 (quotation marks omitted).
. Because the ICA majority is affirmed and the case is remanded for a new trial, the ICA’s decision that any question about the restitution order need not be addressed is also affirmed. As a new trial is warranted, the restitution order is vacated.
Concurrence Opinion
Joined By NAKAYAMA, J., Concurring In The Result.
I concur in the result. I agree with the majority that the prosecutor’s statement that
The State charged Walsh with Assault in the Second Degree, in violation of HRS § 707-711(l)(b). The charge was based on Walsh’s involvement in a physical altercation with several men outside of a night club, where he punched and severely injured Kapena Kramer (Kapena). At trial, Walsh admitted punching Kapena, but argued he did so in self-defense. During closing argument, the prosecutor, after discussing the credibility and trial demeanor of Walsh’s sister Stephanie, went on to say:
Some of you during voir dire and jury selection were asked about what you would look at, and the defense went into great detail. Remember one thing that was asked by me to [Walsh]? You know, [Walsh], first of all, is entitled, since he’s on trial here, is entitled to hear and see all the witnesses. But with that becomes [sic] the facts [sic] that he’s benefitted from seeing all these witnesses. Before he got up on that stand, he saw each and every one of the witnesses, heard what they were going to say.
What’s important about that is not only that, he heard the voir-diring your questions, which some of you had mentioned, I believe you said, well, you know, if they looked me in the eye. Okay, so he gets up here and looks each one of you in the eye. See how sincere I am? Does that mean you’re sincere? Well, what about, you know, Kepa got up there, and he was nervous. Remember Iokepa and Kapena, they had never been in trouble before and never testified before. They get up here. They were nervous. Yeah, think about it. You have to come up here for the first time in this kind of atmosphere, you’re going to be nervous.
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But the fact of the matter is it is important that when the Court has read you those instructions about, I believe it’s Instruction Number 7, about the credibility of witnesses, yes, you take into consideration all those items such as their appearance and demeanor, their manner of testifying, the intelligence, candor and frankness, the lack thereof, the interest in bias and motives for testifying, the opportunity for acquiring information, the probability or improbability of the witness’ testimony, the extent to which a witness is supported or contradicted by other evidence and supported the extent to which a witness gave contradictory statements and whether at trial or at other times and all other circumstances surrounding it.
But don’t get fooled into a position where because somebody can look you in the eye, they must be telling the truth. If you know how to look somebody in the eye, you still can lie. If we look at the independent witnesses John Cooprider, what axe did he have to grind? What does he tell you? It corroborates everybody’s testimony, even corroborates even [Walsh’s] own testimony. What does John say? He’s sitting there. He watches [Walsh], not, oh, crawling on the ground getting up. I’m sorry if you think, well, why is she making light of that. Because this evidence doesn’t support it. Because that’s a story. That’s exactly what it is. It’s [Walsh’s] story, because he wants to try to make you believe he was out of his mind and doesn’t know what he was doing and he just blindly reached out.
The defense did not object, and did not respond directly to the remarks during its own closing. The prosecutor did not mention Walsh’s presence at trial during the rebuttal closing.
I agree with the majority that the reference to Walsh having “benefitted from seeing all these witnesses” was an improper generic tailoring accusation, State v. Mattson, 122
Because that issue is dispositive, the court need not reach the prosecutor’s comments regarding voir dire. In any event, the remarks did not constitute an improper generic tailoring argument under Mattson, and were not otherwise improper. Thus, I respectfully disagree with the majority’s analysis of that issue.
The comments were made in the context of a larger argument regarding the credibility of the witnesses, and in particular, their demeanor while testifying. The prosecutor noted that some of the jurors stated during voir dire that they would consider whether a witness looked them in the eye in determining whether that witness was credible.
This portion of the prosecutor’s closing was proper and did not constitute the type of generic tailoring accusation that was prohibited by Mattson. Rather than undercutting the jury’s truth-seeking function, the argument furthered that function by properly focusing the jury’s attention on an aspect of the defendant’s demeanor (his looking at the jurors as he testified) and providing an explanation that was based on more than his mere presence at trial. For his part, the defendant could rebut that argument during his own closing, by suggesting that his demeanor was in fact sincere, by contrasting it to the demeanor of other witnesses, or otherwise. Respectfully, I believe that the jury’s truth-seeking function is furthered, rather than hindered, by this adversarial testing, and that the defendant’s right to be present during trial is not unduly burdened as a result.
In reaching that conclusion, three questions must be answered: 1) whether, as a general matter, prosecutors are entitled in closing to discuss the demeanor of a testifying defendant; 2) whether, in closing argument, prosecutors may refer to statements made during voir dire; and 3) whether the comments here nevertheless constituted an improper generic tailoring accusation prohibited by Mattson.
Although Hawaii courts have not decided, in a published opinion, whether counsel may comment on a criminal defendant’s demeanor while on the stand, other jurisdictions have answered the question in the affirmative. E.g., People v. Edelbacher,
The majority notes that “there is nothing in the record with respect to [Walsh’s] demeanor during his testimony, or any confirmation that [Walsh] looked the jurors ‘in the eye’ or, if he did, the nature of his gaze.” Majority Opinion at -,
[The defendant’s] demeanor during his own testimony was properly in evidence by the mere fact that it was a part of his sworn testimony. We can presume that the jury had an equal opportunity to observe his demeanor. Therefore, [defendant’s] testimonial demeanor could be alluded to by the State in final argument on guilt.
Good,
Likewise, many other jurisdictions characterize nonverbal conduct on the witness stand as “evidence.” United States v. Modica,
The majority acknowledges that “comment on testimonial demeanor is entirely proper”, Majority Opinion at - n. 36,
In the instant case, the prosecutor commented on Walsh maintaining eye contact with the jury during his testimony. Walsh has not objected to this characterization of his demeanor on the stand. Although Walsh’s eye contact was not noted by the court in the record, it was testimonial conduct that occurred on the witness stand, and that all of the jurors and counsel had the opportunity to observe. Thus, it was evidence in the ease and the prosecutor was entitled to discuss it during summation.
The next inquiry is whether, in commenting on the defendant’s testimonial demeanor, prosecutors may refer to statements made during voir dire. I agree with the majority that statements made in voir dire are not “evidence” in the sense that the State may not rely on such statements in place of providing factual proof during the evidentiary phase of the trial. However, the use in summation of analogies, illustrations, and the jurors’ common experience to make the legal and factual concepts at trial understandable to a lay jury can be appropriate even though such matters are not in evidence. U.S. v. Biasucci,
Such arguments are improper when they go beyond the common experience of the jury and, for example, misstate the law or purport to establish factual matters which are part of the State’s burden of proof. See, e.g., People v. Katzenberger, 178 Cal.App.4th 1260,
Consistent with these general principles, where statements in voir dire reflect the common experience of the jurors, prosecutors are entitled to refer to the statements in summation. Glymph v. U.S.,
Therefore, the majority’s position that the DPA’s comment regarding what occurred at voir dire was improper cannot be justified by the proposition that statements in voir dire are not evidence. Majority Opinion at ---,
Lastly, I consider whether the comment was improper because it was tied to Walsh’s presence at trial. This final inquiry is governed by this court’s decision in Mattson. In that case, this court struck a balance between the protection of criminal defendants’ constitutional rights and the avoidance of undue burdens on criminal prosecutions. See id. at 326-27,
Rather, the prosecutor relied on two facts wholly separate from Walsh’s mere presence: 1) that some jurors mentioned during the voir dire that eye contact would be an indicia of trustworthiness; and 2) that Walsh maintained eye contact during his testimony. Specifically, the DPA stated: “[S]ome of you had mentioned, I believe you said, well, you know, if they looked me in the eye. Okay, so he gets up here and looks each one of you in the eye.” The jurors were present during Walsh’s testimony, and could therefore assess whether the prosecutor’s characterization matched their own recollection. They could also determine whether Walsh’s demeanor on the stand — including any efforts on his part to make eye contact with them— was indicative of sincerity or pandering. In short, a reasonable juror could find this information useful in assessing Walsh’s credibility.
Respectfully, precluding the prosecutor from making that argument does not advance the purpose of the prohibition against generic tailoring accusations. See id. at 326,
Moreover, this is not a case where the defendant had no opportunity to respond to the tailoring accusation. In Mattson, we expressed concern about allowing generic accusations “at a time when the defendant cannot respond” to them. Id. at 326,
Finally, I believe that requiring the “unfavorable inference” instruction to be given in all cases where the defendant testifies, Majority Opinion at ---,
. The record does not contain the transcript of the voir dire. The majority suggests that because there was no transcript, there is "no verification of what was said by potential jurors with respect to eye contact,” and the prosecutor therefore impermissibly commented on matters outside the record. Majority Opinion at ---,
The majority concludes that Walsh was not responsible for providing the transcripts of the voir dire because Walsh contended at the ICA that they were not "necessary” to him on appeal. Majority Opinion at --- n. 32,
. Georgia courts have held that remarks in closing argument regarding voir dire are generally improper. Sterling v. State,
. Although reasonable people may disagree as to whether some propositions derive from common experience, e.g., compare Danback,
. Although in Mattson we relied on the fact that the prosecutor pointed to other "evidence” of tailoring in the closing, we did not decide the question presented here, i.e., whether a prosecutor may use the jurors' common experience in support of a tailoring accusation. Mattson,