State v. Matsumoto. ( 2019 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
29-OCT-2019
09:22 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
KEITH T. MATSUMOTO, Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 12-1-0918)
OCTOBER 29, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
The defendant in this case confessed to a crime after
an interrogating officer informed him, untruthfully, that he did
not pass a polygraph test. Our case law has established that
deliberate falsehoods extrinsic to the facts of the alleged
offense, which are of a type reasonably likely to procure an
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untrue statement or to influence an accused to make a confession
regardless of guilt, will be regarded as coercive per se.
The trial court in this case determined that
defendant’s confession was voluntarily made and admitted it into
evidence over defense objection. The court also ruled that the
defendant during his trial testimony, when discussing the
circumstances of his confession, could not mention the word
“polygraph,” the word “test,” or that the interrogating officer
gave him inaccurate test results before his confession was
elicited.
In this appeal, we consider whether a deliberate
falsehood regarding polygraph results impermissibly taints a
confession. We also address whether the court-imposed
limitations on defendant’s testimony violated his constitutional
rights to present a defense and to confront witnesses. Lastly,
we determine the propriety of the court’s instruction to the
jury that defined an element of the charged offense.
Based upon our review, we conclude that the circuit
court erred in its rulings on these three issues and accordingly
vacate the defendant’s conviction and remand the case for
further proceedings consistent with this opinion.
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I. BACKGROUND AND CIRCUIT COURT PROCEEDINGS
Keith T. Matsumoto was arrested at a wrestling
tournament at Farrington High School (Farrington HS) on the
island of Oahu on June 9, 2012, based upon allegations that he
committed a sexual offense during the tournament. Matsumoto was
subsequently indicted in the Circuit Court of the First Circuit
(circuit court) for sexual assault in the third degree in
violation of Hawaii Revised Statutes (HRS) § 707-732(1)(c).1
A. Motion to Suppress
Matsumoto moved to suppress statements that he made
during and after a polygraph examination conducted while he was
in police custody on June 10, 2012, as well as any other item of
evidence recovered by the Honolulu Police Department (HPD) after
that date.
1
HRS § 707-732 (2009) provides as follows:
(1) A person commits the offense of sexual assault in the
third degree if:
. . .
(c) The person knowingly engages in sexual contact
with a person who is at least fourteen years old but
less than sixteen years old or causes the minor to
have sexual contact with the person; provided that:
(i) The person is not less than five years
older than the minor; and
(ii) The person is not legally married to the
minor.
3
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A hearing on the motion was held at which Matsumoto,
Detective (Det.) Allan Kuaana, and Det. Kim McCumsey testified
about the events surrounding a series of custodial
interrogations that took place following Matsumoto’s arrest.2
Matsumoto testified that he was the State Coordinator
for Wrestling for the Hawai‘i High School Athletic Association,
that his daughter was a wrestler, and that he had gone to
Farrington HS with his daughter on June 9, 2012, to volunteer
for a wrestling tournament. Matsumoto stated that at about
12:30 p.m. he was asked to step outside, where police officers
placed him under arrest. He was taken to the HPD main station,
he testified, where he was booked and held in custody. At
approximately 8:30 p.m. that evening, Det. McCumsey removed him
from his cell and took him to an interview room. Matsumoto
stated that Det. McCumsey, after going over a waiver of rights
form with him, proceeded to interview him about the events of
that morning, told him he would have to take a polygraph test,3
and then returned him to his cell.
2
The Honorable Randal K.O. Lee presided over all circuit court
proceedings referenced in this opinion.
3
During her testimony, Det. McCumsey testified that Matsumoto had
agreed to take a polygraph test on his own volition when she asked if he was
willing to submit to the test.
4
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The next morning Det. McCumsey escorted Matsumoto to a
polygraph room, he testified, where she introduced him to Det.
Kuaana before leaving the room.4 Det. Kuaana gave Matsumoto a
polygraph waiver form, Matsumoto stated, that indicated
Matsumoto would be provided with the results of the polygraph
immediately following the conclusion of the examination. Det.
Kuaana then put electrodes on Matsumoto and hooked him up to the
polygraph machine, he testified. Det. Kuaana asked a series of
questions, unrelated to the events resulting in Matsumoto’s
arrest, to calibrate the polygraph. Among other things, Det.
Kuaana asked Matsumoto about his divorce and told Matsumoto to
say he was holding a $5 bill when he was holding a $20 bill.
Det. Kuaana then showed Matsumoto the results, Matsumoto stated,
pointing out where the machine indicated Matsumoto was
untruthful.
Matsumoto testified that Det. Kuaana then interviewed
him regarding the events of the previous day. Matsumoto stated
4
Matsumoto testified that while being held at the HPD main
station, he was placed in a concrete cell without an adequate blanket to
shield against the cold temperature, which aggravated an existing spinal
injury for which he had previously had surgery. He further stated that he
had eaten very little, had not slept much, and had become dehydrated because
it was difficult to drink from the fountain in his cell, which caused his
contact lenses to dry out and scratch his cornea. Matsumoto testified that
he informed Det. Kuaana of his physical state prior to taking the polygraph
examination. Detectives McCumsey and Kuaana testified that Matsumoto
appeared well-rested and did not seem to be in any extreme pain or
discomfort.
5
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that, upon completion of the test, Det. Kuaana removed the
electrodes and told Matsumoto that he did not pass the polygraph
test. Det. Kuaana never used the term “inconclusive,” Matsumoto
testified, and he did not show Matsumoto the test results.
According to Matsumoto, Det. Kuaana continued to
interrogate him and refused to accept his answers, stating that
“there had to have been more on the basis that [Matsumoto] had
failed the polygraph [test].” Matsumoto testified that Det.
Kuaana told him that he needed to make another statement, and
then told Det. McCumsey upon her return that Matsumoto wished to
speak with her.
Following the conclusion of Matsumoto’s testimony,
Det. McCumsey testified. Det. McCumsey stated that she
initially asked Matsumoto if he would be willing to take a
polygraph test because she offers every suspect who denies
committing a crime the opportunity to take an examination. She
testified that she believed Det. Kuaana told her that the
results of Matsumoto’s polygraph test were inconclusive when she
returned to the polygraph room after the test had concluded.
Det. McCumsey stated that, following the polygraph examination,
she brought Matsumoto to an interview room, obtained a waiver of
his Miranda rights, and interrogated him a second time.
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Det. Kuaana testified that there are three phases to a
polygraph examination: the pre-test, the in-test, and the post-
test--the last of which includes further interrogation “if
someone doesn’t pass an exam or fails an exam.” Before giving
Matsumoto constitutional warnings, Det. Kuaana stated, he
explained the three phases to Matsumoto and said that he would
give him the results of the examination during the post-test
phase. He did not tell Matsumoto that the post-test phase could
include further interrogation.
Det. Kuaana testified that during the pre-test phase
he discussed with Matsumoto the difference between truth and
lies, the test questions, and the allegations against him. The
detective stated that, during this phase, he interacted with
Matsumoto as though he believed Matsumoto was innocent and that
it was his job to assist him in getting through the process.
Det. Kuaana testified that he also explained to Matsumoto during
the pre-test phase how a polygraph works, informing him that it
“is a pass/fail test, either you pass or you don’t.”
After conducting a practice test, Det. Kuaana
testified, he moved on to the in-test phase. He testified that
he asked Matsumoto a series of questions regarding the
allegations against him and determined that the results of the
polygraph test were “inconclusive,” meaning that Matsumoto’s
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“score” was “right in the middle” and did not fall within the
range needed to pass or to fail the examination. Det. Kuaana
testified that he nonetheless told Matsumoto that he “did not
pass the test.” He did not tell Matsumoto that the test was
inconclusive, but he testified that he believed his statement
was accurate because “for the sake of the polygraph, an
inconclusive result is not passing.”
Det. Kuaana stated that he then moved to the post-test
phase, in which he began to ask accusatory questions and told
Matsumoto that he knew Matsumoto was not telling him the truth.
He explained that he intentionally shifted his attitude during
this post-test phase as “an interrogation tactic”:
When I go into the post-test phase, obviously I have
results from my polygraph; he didn’t pass. I know there’s
some other things about the case, so then it becomes more
accusatory. I become more confident in my accusations.
It’s no longer about whether or not you’ve done it; we know
you did it. It’s just a question of why did you do it.
Det. Kuaana testified that throughout the polygraph test,
Matsumoto appeared to be in “disbelief” and was calm in a way
that indicated that Matsumoto could not believe he was in the
position that he was in. The State rested following the
conclusion of Det. Kuaana’s testimony.5
5
Det. Kuaana’s Polygraph Examination Report was accepted into
evidence at the hearing. In the post-test section of the report, Det. Kuaana
wrote that he “explained the importance to tell the truth so that whenever a
(continued . . .)
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Matsumoto argued that because the results of a
polygraph test are inadmissible at trial under Hawaiʻi caselaw,
he would be unable to explain the basis and context of the
statements he made during the in-test and post-test phases of
the polygraph examination, and accordingly these statements
should be inadmissible. Matsumoto also argued that his
statements during the post-test phase should be suppressed
because they were the result of Det. Kuaana intentionally
leading him to falsely believe that he had failed the polygraph
examination, which is an issue extrinsic to the facts of the
case, and his statements were thus per se coerced and
inadmissible under Hawai‘i law.6
In response, the State argued that, although results
of a polygraph test are inadmissible, the omission of the
circumstances surrounding Matsumoto’s statements should not
render the statements inadmissible because they were supported
by valid waivers of Matsumoto’s constitutional rights.
(. . . continued)
‘reasonable person’ were to review the facts of the case, that person would
be able to understand the subject account of the incident.”
6
Matsumoto also contended that Det. Kuaana’s cautionary advisory
to him of what a “reasonable person” would be able to understand from the
facts of the case, in addition to other circumstances that Matsumoto asserted
amounted to a promise of leniency, resulted in his statements not having been
knowingly, intelligently, and voluntarily given.
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Matsumoto’s statements, the State contended, were not obtained
through coercion or trickery. According to the State, Det.
Kuaana did not lie when he told Matsumoto that he did not pass
the polygraph examination because the results were inconclusive
and did not indicate that Matsumoto had passed.7
The circuit court orally denied the motion to suppress
at the conclusion of the hearing and later issued findings of
fact and conclusions of law. The court concluded that, while
the results of the polygraph examination were inadmissible at
trial, the post-polygraph interview was distinguishable from the
polygraph test results, and the statements made during the post-
polygraph interview were therefore admissible. The court
further found that Det. Kuaana’s statement that Matsumoto did
not pass the polygraph test was not a falsehood because it was
technically true that Matsumoto did not obtain a passing result.
And, even assuming the statement could be considered to be
deceptive, the court continued, it would not be a falsehood
extrinsic to the facts of the alleged offense that would be
reasonably likely to procure an untrue statement. Matsumoto
7
The State also contended that Det. Kuaana’s advice that it would
be better for Matsumoto to tell the truth was not deceptive or coercive and
was calculated to enhance the trustworthiness of any subsequent statement by
Matsumoto. The State thus argued that Matsumoto’s waiver of his
constitutional rights was knowing, intelligent, and voluntary.
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“could have insisted that the test was wrong and that he had
been telling the truth,” the court stated. The court thus ruled
all of Matsumoto’s statements were admissible.8
B. Prohibition Against Mentioning Polygraph at Trial
Prior to trial, Matsumoto filed a motion in limine
regarding the statements he made following the polygraph
examination. At the hearing, Matsumoto again argued that Det.
Kuaana’s statement to him that he did not pass the polygraph
test was a “material misrepresentation.” Matsumoto argued that
the fact that he took a polygraph examination should be
admissible, as should the fact that he was told that he did not
pass. Otherwise, Matsumoto argued, the jury would not know the
context in which the statements were made, including that his
statements were motivated by his false belief that he had failed
the polygraph examination.
The circuit court ruled that there was to be no
mention of the word “polygraph” or the word “test.” The court
further ruled that Det. Kuaana would only be allowed to testify
that he made a statement to Matsumoto that was not “totally
8
The court did not independently address Det. Kuaana’s advice to
Matsumoto that it was important to tell the truth so that a reasonable person
could follow his account or Matsumoto’s testimony that Det. Kuaana’s promised
him leniency if he confessed, but it ruled that Matsumoto’s statements were
intelligently, knowingly, and voluntarily made without police coercion.
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true.” The parties were also not permitted to say to the jury
that the statement was a material misrepresentation, the court
held.
C. Trial
Trial commenced on January 17, 2014, and included the
following testimony. The complaining witness (CW) testified
that, on the day of the tournament at Farrington HS, Matsumoto
touched her two times in ways that made her feel uncomfortable.9
The first time occurred when she was getting pre-match
paperwork. Matsumoto bumped into her and his hand slid across
her buttocks, she stated. The CW testified that there were many
people in the area and she believed at the time that it was an
accident.
The second time took place while the CW was coaching
one of her friends, she stated. The CW testified that she
remembered Matsumoto walking up behind her and talking to her
“about wrestling stuff” as he massaged her shoulders and touched
her stomach. When the CW tried to leave, she testified,
Matsumoto slapped and grabbed her buttocks with both hands. The
CW said that, after Matsumoto touched her this second time, she
went straight to her father to tell him what happened because
9
The CW described these incidents as a touch, a slap, a slide, or
a grab of her buttocks.
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she felt uncomfortable. The CW testified that the touch was not
to congratulate her for anything.
William Ullom, who was a volunteer wrestling coach at
Radford High School and was familiar with the complainant
through his experience in the wrestling community, testified for
the State.10 Ullom stated that he saw Matsumoto “inappropriately
touch[]” the CW by grabbing her buttocks and moving his hands to
her groin and down the sides of her back. The CW reacted by
getting up immediately, acting distraught, and leaving, Ullom
testified. According to Ullom, as part of his mandatory
reporting obligations as a coach, he insisted the police be
called.
Det. Kuaana testified that his post-polygraph
interrogation of Matsumoto lasted three and a half hours.11
During the first part of his interrogation, Det. Kuaana
testified that he attempted to develop a rapport with Matsumoto
to get him to relax and communicate, and that he then asked
10
Ullom was also familiar with Matsumoto from two interactions at
previous wrestling tournaments. In the first incident, a student wrestler
did not have a doctor’s note allowing him to participate in a match; Ullom
attempted to have a tournament doctor clear the student to participate, but
Matsumoto opposed this effort as it was against the tournament rules. In the
second incident, one of Ullom’s students was initially prevented from
participating for failure to weigh in but was eventually allowed to compete.
11
The interrogation was not recorded, but Det. Kuaana testified
that he took notes of what was said.
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Matsumoto for the facts of the case as Matsumoto understood them
to be. Matsumoto stated that he did not touch the CW’s butt in
any way.
Det. Kuaana testified that he then switched to a
“direct confrontation technique” in which he “exud[ed]
confidence” in the fact that the person he was interrogating
committed an offense. Det. Kuaana acknowledged that during the
interrogation he provided some information to Matsumoto that was
“not completely accurate” but explained that interrogators are
permitted to use deception within guidelines set by case
precedent. Det. Kuaana indicated that his goal was to get
Matsumoto to admit that he had grabbed the CW’s buttocks, if
Matsumoto had done so. Det. Kuaana testified that, although he
knew there were inconsistencies in the police reports, he told
Matsumoto that he had solid evidence and that based on what he
had seen and what he knew, there was no doubt that the
allegations against him were true.12
Det. Kuaana then showed Matsumoto a diagram of the
gym, and he pointed out where Matsumoto was when the touching
12
Det. Kuaana also used an “alternative question” technique in
which he said to Matsumoto: “Okay, look you know, there’s no doubt that you
touched her, but what I want to know is did you touch her just one time or
more than once?” According to Det. Kuaana, that question had “three possible
answers: more than once, just once, or never.” Det. Kuaana testified that
Matsumoto answered that he had only touched the CW once and was dejected
after saying so.
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occurred. Matsumoto said that the CW was crouched down and he
had patted and grabbed her buttocks.
Det. McCumsey testified that she observed and listened
to Det. Kuaana’s post-polygraph interrogation of Matsumoto
through a viewing window. According to Det. McCumsey, by the
end of Det. Kuaana’s interrogation, Matsumoto admitted to
“grabbing” the CW’s buttocks while she was bent over by the
wrestling mat watching one of her friends. Det. McCumsey stated
that, following Det. Kuaana’s interrogation and with Matsumoto
present, Det. Kuaana told her what Matsumoto said in the
interrogation as if she had not heard it before. Det. McCumsey
testified that Matsumoto agreed to submit to a second
interrogation by her.13
During Det. McCumsey’s testimony concerning her
interrogations of Matsumoto, two video recordings of those
interrogations were played for the jury.14 In the second
13
The substance of these recordings was consistent with Det.
McCumsey’s testimony at trial.
14
These videos had been edited to remove matters the court had
ruled were inadmissible. Before the recording of the first interrogation was
played, Matsumoto objected to giving the jury redacted transcripts of these
videos. The deleted text was replaced by large black lines varying in size
from several lines, with some lines covering nearly a full page. Matsumoto
argued that the large number of redactions were prejudicial because the jury
would speculate as to the substance of the redacted words, and he requested
that the jurors just watch the videos and not be provided with the
transcripts. The court overruled Matsumoto’s objection, allowed the jury to
use the redacted transcripts, and instructed the jurors not to speculate
regarding the redacted content.
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interrogation, Det. McCumsey testified, Matsumoto made
statements about not remembering how any touching could have
happened but said that he must have touched the CW. Det.
McCumsey stated that when she tried to “lock [Matsumoto] in” to
get him to “commit to something[,]” regarding touching the CW,
Matsumoto responded, “I’m not gonna say I didn’t. But if
anything, I would characterize it as a ‘good job’ slap.” After
Matsumoto later said that it might have been a “‘good job’ pat
on the butt,” Det. McCumsey stated, she asked if the reason that
Matsumoto touched the CW that way was because it was a moment of
“bad judgment,” and Matsumoto said it was “weakness.” Det.
McCumsey testified that Matsumoto also agreed that he grabbed
the CW’s buttocks “because the opportunity was there.” In the
interrogation, according to Det. McCumsey, Matsumoto
demonstrated a slapping-type motion, not a grabbing motion.
Following the State’s last witness, Matsumoto made a
motion for a judgment of acquittal. The court denied the motion
and Matsumoto proceeded with his case.
Darren Reyes, head coach for the Farrington HS
wrestling team, was the site director and host for the
tournament where the alleged incident took place. During the
tournament, Reyes coached the CW on a wrestling move. He
testified that the CW never told him that she had been
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inappropriately touched by Matsumoto and that she appeared
“jolly” and “cheerful” subsequent to the match when the alleged
touching occurred.
Corey Taniguchi, a volunteer coach at the wrestling
tournament, testified that he was standing near the CW during
the second alleged touching. He testified that he saw nothing
unusual during the match. R.G., a student from Waipahu High
School, refereed the match when the second alleged incident
occurred. He testified that he did not see Matsumoto touch the
CW at any time.
Matsumoto testified on his own behalf. He indicated
that he was the technical director for the Hawai‘i Technology
Development Venture, a federal program that develops the
technology industry in Hawaiʻi. Matsumoto stated that he
wrestled in high school and in college and had been coaching
since 1979.15 At the time of the tournament, Matsumoto said that
he was a certified USA wrestling coach and was involved in
15
Matsumoto also testified to previous incidents with Ullom, which
Matsumoto portrayed as negative. Matsumoto stated that he blocked Ullom’s
student from participating in a tournament for failing to have a doctor’s
note. According to Matsumoto, Ullom reacted poorly to this decision.
Additionally, Matsumoto testified that, at a separate tournament, he was
required to block a student from wrestling for failing to weigh in. He was
forced to ask Ullom to leave the coach’s table, Matsumoto related, due to
Ullom’s disruptive reaction to his decision.
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running wrestling tournaments and managing the state wrestling
weight monitoring program.
Matsumoto testified that he arrived at the tournament
around 10:30 a.m. He explained that one of his two daughters
was a wrestler at the tournament. According to Matsumoto, the
first time he saw the CW was at the scoring table; she was
standing next to one of Matsumoto’s daughters and other female
wrestlers. Matsumoto stated that he just said “hi” to the CW
but did not want to bother her because she was “running the
clock” for a match.
Matsumoto testified that, during the first alleged
touching, he was focused on coaching, did not interact with the
CW, and did not have any physical contact with the CW.
Regarding the second alleged incident, Matsumoto admitted making
contact with CW’s buttocks but stated that it was a “good job
pat on the butt and not a grab as alleged.”
According to Matsumoto, Det. Kuaana suggested that, if
he gave the police something, apologized, and quit coaching, the
case might not proceed.16 Based upon Det. Kuaana telling him
about the strength of the case and providing him with
16
Matsumoto also testified that Det. Kuaana told him that if he did
not tell the police what he did, he would spend another night in the cell
block, but that if he admitted something, they could try “to work something
out.”
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“misleading or inaccurate information,” Matsumoto testified, he
began to doubt his memory. Matsumoto stated that he never told
Det. Kuaana that he grabbed the CW’s buttocks, but acknowledged
that it was possible that he may have touched the CW. Matsumoto
testified that he found out later that Det. Kuaana gave him
information that was not completely accurate and that there was
“no doubt” that the information was not completely accurate.
During the third interrogation, Matsumoto testified,
he told Det. McCumsey that he could not recall touching the CW’s
butt but gave various examples of how it could have occurred.
1. Jury Instructions and Verdict
During the settlement of the jury instructions, the
circuit court considered its proposed supplemental jury
instruction 2 to define “sexual contact”17:
“Sexual contact” means any touching, other than acts
of “sexual penetration,” of the sexual or other intimate
parts of a person not married to the actor, or of the
sexual or other intimate parts of the actor by the person,
whether directly or through the clothing or other material
intended to cover the sexual or other intimate parts.
“Sexual parts” means the sex organs.
“Intimate parts” means the buttocks and those parts
of the body typically associated with sexual relations.
In considering whether the part of the body touched
is a “sexual or other intimate part,” you must consider the
context in which the touching occurred.
17
Sexual assault in the third degree, HRS § 707-732(1)(c), requires
proof of sexual contact. See supra note 1.
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(Emphases added.)
Matsumoto argued that case law had limited
consideration of “context” to the circumstances underlying
the incident at issue and that context must exclude
subsequent conduct in a different setting. Accordingly, he
proposed his own instruction as to the applicable law.18
Matsumoto contended that it was “critical for the jury to
understand that not any touching of the buttocks is
automatically sexual contact” as the instruction indicated.
The court during the conference with counsel
provided the parties with a modified supplemental jury
instruction 2, which proposed substituting a single word.19
Matsumoto also objected to this instruction, maintaining
that he still requested his proposed instruction 3 because
it more accurately reflected the statement in State v.
18
Matsumoto’s proposed instruction 3 reads as follows:
In determining whether an alleged touching of [the CW’s] “sexual or
other intimate parts” occurred, you must consider the context in which
the alleged touching occurred. A body part which might be a “sexual or
other intimate part” in one context might not be in another context.
“Sexual parts” refers to the sex organs. “Intimate parts” refers to
those parts of the body typically associated with sexual relations.
The “context” refers only to the particular situation in which the
alleged touching occurred. In evaluating the “context” in which the
alleged touching occurred, you must only consider the circumstances of
the particular incident, not the circumstances that occurred in prior
or subsequent incidents.
19
The court modified supplemental instruction 2 to replace the word
“touching” in the last paragraph with “contact.”
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Silver, 125 Hawaii 1, 249 P.3d 1141 (2011), that “a body
part which might be a sexual or other intimate part in one
context might not be in another.” The court refused
Matsumoto’s proposed instruction 3 and submitted, over
defense objection, its supplemental jury instructions 2 to
the jury.
The jury found Matsumoto guilty as charged. Matsumoto
was sentenced to five years of probation, which included a jail
term of six months as a condition. Matsumoto appealed from the
judgment of conviction and probation sentence to the
Intermediate Court of Appeals (ICA).
II. ICA PROCEEDINGS
The ICA in its summary disposition order (SDO),20 first
addressed the voluntariness of Matsumoto’s statements. The ICA
held that Det. Kuaana’s statement that Matsumoto did not pass
the polygraph test was not a deliberate falsehood because
“strictly speaking” Matsumoto “did not score well enough to
‘pass’ nor did he score well enough to fail.” The ICA also
concluded that the challenged statements of Det. Kuaana
regarding the polygraph test results were intrinsic to the
20
The ICA’s SDO can be found at State v. Matsumoto, No. CAAP-14-
0000933, 2017 WL 3720456 (Aug. 29, 2017).
21
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charge because they related to the strength of the evidence
against Matsumoto and thus were not coercive per se.
Next, the ICA analyzed the totality of the
circumstances surrounding Matsumoto’s post-polygraph statements
and held that Matsumoto’s post-polygraph statements were
voluntary. The ICA determined that it was “far from clear that
hearing he did not pass the polygraph exam caused Matsumoto to
make his post-polygraph statements.” In addition, the ICA
pointed to the detectives’ descriptions of Matsumoto as not
appearing physically impaired and Matsumoto’s level of education
as supporting the determination of Matsumoto’s post-polygraph
statement as voluntary.21
The ICA then addressed the circuit court’s exclusion
of evidence that Matsumoto’s post-polygraph statements were
induced by Det. Kuaana’s representation that Matsumoto did not
pass the polygraph test. The ICA concluded that “Hawaiʻi case
law does not provide for an exception to the prohibition against
polygraph results,” and Det. Kuaana’s assessment of the
polygraph results and his statements to Matsumoto were therefore
properly excluded.
21
The ICA did not address Matsumoto’s argument that his confession
was induced by Det. Kuaana’s implied promise of leniency.
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As to the court’s instruction on “intimate parts,” the
ICA concluded that the jury instructions adequately conveyed the
need to consider the context in which a body part was touched as
required by State v. Silver. Matsumoto’s argument, the ICA
stated, “hinges on the supposition that the jury followed the
[“intimate parts” of the instruction] but ignored the [“context
part of the instruction”] and fails to provide any evidence in
support of this assumption.” Without such evidence, the ICA
held that Matsumoto could not overcome the presumption that a
jury generally follows court instructions and did so in this
case.
Lastly, as to the sufficiency of the evidence, the ICA
noted that both the CW and Ullom “testified that the touching
was more than a swat on the buttocks but consisted of squeezing
and moving his hands to the front of [the CW’s] body.” Viewing
the testimony of the CW and Ullom in the strongest light for the
prosecution, the ICA held that there was substantial evidence
such that a reasonable juror could have found Matsumoto guilty.22
The ICA thus affirmed the circuit court’s judgment of
conviction and probation sentence. Matsumoto timely filed an
application for writ of certiorari, which this court accepted.
22
The ICA also rejected Matsumoto’s argument regarding the
prejudicial presentation of the redacted transcripts.
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III. STANDARDS OF REVIEW
A. Conclusions of Law
Conclusions of law are reviewed de novo, under the
right/wrong standard of review. Maria v. Freitas, 73 Haw. 266,
270, 832 P.2d 259, 262 (1992).
B. Voluntariness of a Statement
The admissibility of a confession or an inculpatory
statement, that is “whether the confession or inculpatory
statement was voluntarily given,” is a “purely legal question”
decided by the trial court by “assess[ing] the manner in which a
confession or inculpatory statement [was] extracted.” State v.
Kelekolio, 74 Haw. 479, 518, 849 P.2d 58, 76 (1993).
C. Jury Instructions
The propriety of jury instructions is a question of
law reviewed de novo using the following standard: whether,
“when read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading.” State v. Bovee, 139 Hawaii 530, 537, 394 P.3d 760,
767 (2017) (quoting State v. Frisbee, 114 Hawaii 76, 79, 156
P.3d 1182, 1185 (2007)).
D. Sufficiency of Evidence
A jury verdict must be upheld if there is substantial
evidence to support the conclusion of the trier of fact.
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“‘Substantial evidence’ as to every material element of the
offense charged is credible evidence which is of sufficient
quality and probative value to enable a [person] of reasonable
caution” to reach a conclusion. State v. Batson, 73 Haw. 236,
248-49, 831 P.2d 924, 931 (1992). Such evidence is viewed in
the light most favorable to the prosecution. Id.
IV. DISCUSSION
A. Voluntariness of Statements
“The constitutional right against self-incrimination
prevents the prosecution’s use of a defendant’s extrajudicial
admissions of guilt where such admissions are the product of
coercion.” State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58,
69 (1993) (citing State v. Wakinekona, 53 Haw. 574, 576, 499
P.2d 678, 680 (1972)). The reasons for barring coerced
admissions include “the inherent untrustworthiness of
involuntary confessions, a desire that criminal proceedings be
accusatorial rather than inquisitorial[,] and a desire that the
police not become law breakers in the process of achieving
society’s valid law enforcement objectives.” Id. (citing
Wakinekona, 53 Haw. at 576, 499 P.2d at 680).
A police officer’s use of subterfuge to induce a
suspect to make an incriminating statement may rise to the level
of coercion, rendering the statement involuntary, untrustworthy,
25
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and inadmissible. See id. at 508-09, 849 P.2d 72. When
measuring “the legitimacy of the use of ‘deception’ by the
police in eliciting confessions or inculpatory statements from
suspects and arrestees,” Hawai‘i courts evaluate the use of
falsehoods regarding information intrinsic to the case
differently from deception that is extrinsic to the facts of the
alleged offense. Id. at 511, 849 P.2d at 73. When the police
use “deliberate falsehoods extrinsic to the facts of the alleged
offense, which are of a type reasonably likely to procure an
untrue statement or to influence an accused to make a confession
regardless of guilt, [they] will be regarded as coercive per
se.” Id. (emphasis omitted).
Examples of extrinsic falsehoods include assurances of
divine salvation upon confession; promises of mental health
treatment in exchange for a confession; assurances of treatment
in a “nice hospital” in lieu of incarceration, in exchange for a
confession; promises of more favorable treatment in the event of
a confession; and misrepresentations of legal principles, such
as misrepresenting the consequences of a “habitual offender”
conviction and holding out that the defendant’s confession
cannot be used against the defendant at trial. Id. at 512–13,
849 P.2d at 73–74.
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When the police use “deliberate falsehoods intrinsic
to the facts of the alleged offense in question[, they] will be
treated as one of the totality of circumstances surrounding the
confession or statement to be considered in assessing its
voluntariness.” Id. at 511, 849 P.2d at 73. Intrinsic
falsehoods include, for example, a statement that a murder
victim is still alive, a claim that articles of clothing were
found at a crime scene, or an assertion that cameras were
recording the area of the crime.
Matsumoto argues that, because Det. Kuaana employed an
extrinsic falsehood to induce him to make incriminating
statements, the circuit court should have concluded that his
post-polygraph interviews were the result of coercion.
1. Deception as to the Polygraph Results
a. Det. Kuaana’s statement to Matsumoto that he did not pass the
polygraph was an objective falsehood
Matsumoto contends that Det. Kuaana telling him that
he did not pass the polygraph test was a falsehood that should
have led the circuit court to preclude his statements at trial.
The circuit court concluded, and the ICA agreed, that telling
Matsumoto that he did not pass the polygraph test was not a
falsehood, and even if it were, the falsehood was intrinsic to
the offense and therefore his confession was admissible.
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Det. Kuaana told Matsumoto that a polygraph
examination is “a pass/fail test, either you pass or you don’t.”
This was an incorrect and misleading characterization of a
polygraph test, Det. Kuaana admitted, as the results may be
inconclusive. Det. Kuaana acknowledged that there was a third
possible outcome by explaining that Matsumoto did not score well
enough to pass, nor “well enough to fail”; Matsumoto was “right
in the middle.” Despite previously explaining to Matsumoto that
he would receive the results of the polygraph test, Det. Kuaana
never disclosed to Matsumoto that his test results were
inconclusive.
Det. Kuaana’s statement that Matsumoto did not pass
the polygraph test, taken in conjunction with the earlier
misstatement that a polygraph test could only be passed or
failed, necessarily implied that Matsumoto had failed the
polygraph examination, which was objectively false. Det. Kuaana
then reinforced this false impression by “confident[ly]” telling
Matsumoto that he was not telling the truth, which Det. Kuaana
described as “an interrogation tactic” to inform Matsumoto that
he had obtained objective proof from the polygraph test that
Matsumoto was lying. Matsumoto would thus have logically
concluded that Det. Kuaana was communicating the results that he
was promised and which represented the entirety of the
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information gleaned from the polygraph test. Det. Kuaana never
corrected this impression by fulfilling his pledge to disclose
the actual results of the polygraph examination--that the test
results were inconclusive.
Taken in context, Det. Kuaana’s statements to
Matsumoto amounted to an objective falsehood. And, in light of
Det. Kuaana’s testimony that he was “allowed to use deception”
within “strict guidelines” and was acting “within these
guidelines” when he made the inaccurate statements to Matsumoto,
they were deliberate falsehoods. Thus, Det. Kuaana used
deliberate deception when interrogating Matsumoto.
b. Det. Kuaana’s deliberate falsehood was an extrinsic falsehood
that was coercive per se
As stated, a deliberate falsehood will be regarded as
coercive per se if the falsehood is extrinsic to the facts of
the alleged offense and is of a type reasonably likely to
procure an untrue statement or to influence an accused to make a
confession regardless of guilt. Kelekolio, 74 Haw. at 511, 849
P.2d at 73. A deception of this nature obviates the need for a
“totality of circumstances” analysis of the voluntariness of the
statement by the court in order to determine admissibility. Id.
The deliberate falsehood in this case was Det.
Kuaana’s statements regarding the results of Matsumoto’s
polygraph test. This falsehood was not a lie by the officer
29
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about any “facts of the alleged offense.” It was not, for
example, a falsehood about the existence of bystanders to the
crime, of witnesses coming to the station to give a statement,
or the discovery of a weapon used to commit the offense.
Instead of being a lie about the facts of the offense, it was a
lie about the test results of a scientific instrument that was
avowed to accurately determine whether the subject of the test
was telling the truth.23 But lying about the results of a
scientific test is unequivocally not a lie about the facts of
the offense, and the falsehood in this case was thus extrinsic
to the facts of the alleged offense.
Additionally, to be coercive per se, the deliberate
falsehood also must be of a type that is reasonably likely to
induce an untrue statement or to influence an accused to make a
confession regardless of guilt. In addressing this factor, we
consider the nature of the polygraph test itself and the effects
of its results on the examinee.
The polygraph is a scientific instrument that purports
to accurately determine whether the subject of the test is
telling the truth. See United States v. Scheffer, 523 U.S. 303,
313 (1998) (“The common form of polygraph test measures a
23
During Matsumoto’s test, the polygraph indicated that Matsumoto
lied about having $20 in his hand, emphatically external to the fact.
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variety of physiological responses to a set of questions asked
by the examiner, who then interprets these physiological
correlates of anxiety and offers an opinion . . . about whether
. . . the accused--was deceptive in answering questions.”). An
examinee who has not lied does not expect to be given falsified
polygraph test results from the police. It is thus not
surprising that the presentation of falsified results may have
serious and substantial effects on a suspect. “[E]xperiments
have shown that . . . counterfeit test results . . . can
substantially alter subjects’ . . . beliefs, perceptions of
other people, behaviors toward other people, emotional states, .
. . self-assessments, [and] memories for observed and
experienced events.” Saul M. Kassin et. al, Police-Induced
Confessions: Risk Factors and Recommendations, 34 L. & Hum.
Behav. 3, 17 (2010) (citing studies that have tracked the
effects of counterfeit test results, along with other deceptive
tactics) (internal citations omitted).
Falsified polygraph results may pressure a suspect
into changing the suspect’s pre-test narrative. This pressure
is intensified when an officer expresses confidence that the
suspect is lying and is aggressive in pushing the suspect to
confess on the basis of the officer’s pre-formed belief of the
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suspect’s guilt.24 Richard A. Leo & Richard J. Ofshe, The Truth
About False Confessions and Advocacy Scholarship, 37 Crim. L.
Bull. 293, 293-370 (2001). Falsified polygraph results are
geared towards making the suspect believe in one’s own guilt or
believing that the officer will not stop the interrogation until
the suspect confesses guilt. See Klara Stephens, Misconduct and
Bad Practices in False Confessions: Interrogations in the
Context of Exonerations, 11 Ne. U. L. Rev. 593, 596 (2019)
(finding that false polygraph results are “bad practices” that
produce both true and false confessions).
Once a suspect believes that a confession of guilt is
inevitable, the individual is cognitively geared to accept,
comply with, and even approve of that outcome. Kassin et. al.,
supra, at 17, (citing Elliot Aronson, The Social Animal (1999))
(exploring how human beings cognitively respond once they view
an outcome as inevitable). That is, false polygraph results may
psychologically prime an innocent suspect to make a confession.
24
Det. Kuaana described the post-polygraph phase as follows:
When I go into the post-test phase, obviously I have
results from my polygraph; he didn’t pass. I know there’s
some other things about the case, so then it becomes more
accusatory. I become more confident in my accusations.
It’s no longer about whether or not you’ve done it; we know
you did it. It’s just a question of why did you do it.
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The case of “The Norfolk Four” is emblematic of how
falsified polygraph results can coerce a suspect into making a
confession. See Tom Wells & Richard A. Leo, The Wrong Guys
(2008) (detailing the backgrounds, arrests, interrogations, and
court proceedings of the Norfolk Four). The Norfolk Four were
young men, each without criminal records, each enlisted in the
Navy, and each trained to endure highly stressful situations.
Id. These men were subjected to intense interrogations in which
they were repeatedly accused of lying and fed information about
the case. During their interrogations, the men each took a
polygraph test and were presented with falsified polygraph test
results. Only then did the men confess, in graphic detail, to a
brutal “gang” rape and murder that they did not commit. Id.
Shortly after their confessions, DNA evidence conclusively
showed that none of these men was the donor of the semen sample
recovered from the victim. Nevertheless, their cases were still
prosecuted: one of the men was convicted by a jury of the murder
and rape, another was convicted of rape, and two took plea
agreements to avoid the death penalty.25 Id. Subsequent to
their trials, the sole perpetrator of the crimes, who was
25
One of these men, Joseph Dick, became so convinced of his guilt
after the false polygraph results that he would go on to testify against the
other defendants and even wrote apology letters to the family of the victim
professing his guilt. Wells & Leo, supra, at 187, 244.
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already in prison for sexual assault, confessed to the crime and
a DNA match was obtained from him. It took over 20 years for
the Norfolk Four to be granted clemency. Priyanka Boghani,
“Norfolk Four” Pardoned 20 Years after False Confessions, PBS
(Mar. 22, 2017).26
Extensive scientific literature and numerous
documented cases have demonstrated the coercive nature of
falsified polygraph test results; they can change a suspect’s
beliefs, pressure a suspect to confess, and even cause the
suspect to believe they committed the crime when they did not.
We thus conclude that providing falsified polygraph test results
to a suspect as part of a custodial interrogation is an
extrinsic falsehood that poses an unacceptable risk of inducing
an untrue statement or influencing an accused to make a
confession regardless of guilt. See State v. Cabagbag, 127
Hawaii 302, 277 P.3d 1027 (2012) (relying on scientific studies
to require a specific jury instruction regarding factors to
consider in evaluating the reliability of eyewitness
identifications). Thus, inculpatory statements elicited during
a custodial interrogation from a suspect whom has previously
been given falsified polygraph results in the interrogation
26
https://www.pbs.org/wgbh/frontline/article/norfolk-four-pardoned-
20-years-after-false-confessions/ [https://perma.cc/J929-N96Y].
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process are coercive per se and are inadmissible at trial.
Kelekolio, 74 Haw. at 511, 849 P.2d at 73.
Accordingly, based on the foregoing, the circuit court
erred in determining that Det. Kuaana’s falsification of the
polygraph test results was not a falsehood and in admitting
evidence of Matsumoto’s confession.
2. The Admission of Matsumoto’s Confession Was Not Harmless Error
Erroneously admitted evidence is evaluated under the
harmless beyond a reasonable doubt standard. State v. McCroy,
104 Hawaii 203, 210, 87 P.3d 275, 282 (2004). Under this
standard, “[t]he relevant question . . . is whether there is a
reasonable possibility that error might have contributed to
[the] conviction.” State v. Kim, 140 Hawaii 421, 434 n.15, 402
P.3d 497, 510 n.15 (2017) (quoting State v. Han, 130 Hawaii 83,
93, 306 P.3d 128, 138 (2013)). Here, Matsumoto’s confession was
contrary to his testimony at trial in which he denied the sexual
nature of his conduct in touching the CW. The confession likely
detrimentally affected Matsumoto’s credibility in the minds of
the jury and thus there is a reasonable possibility that this
evidence may have contributed to Matsumoto’s conviction. State
v. Kazanas, 138 Hawaii 23, 41, 375 P.3d 1261, 1279 (2016)
(holding that where the case turned on the credibility of the
defense’s witness versus the State’s, the improper admission of
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a statement which harmed credibility was not harmless beyond a
reasonable doubt). Accordingly, the circuit court’s error was
not harmless beyond a reasonable doubt.27
B. Exclusion of Evidence of the Circumstances Surrounding the
Eliciting of Matsumoto’s Confession28
The due process guarantee of the Hawaiʻi Constitution
serves “to protect the right of an accused in a criminal case to
a fundamentally fair trial,” and “[c]entral to the protections
of due process is the right to be accorded ‘a meaningful
opportunity to present a complete defense.’”29 State v. Tetu,
27
Matsumoto asserts that the court erroneously denied his motion
for judgment of acquittal. However, by presenting evidence after his motion
was denied, Matsumoto waived any error made by the circuit court in denying
the motion. State v. Calaycay, No. SCWC-XX-XXXXXXX, 2019 WL 4010192, at *6
(Haw. Aug. 26, 2019). Accordingly, we instead review whether the State
presented sufficient evidence to support the conviction. We review the trial
record to determine whether, when considered in the strongest light for the
prosecution, there was substantial evidence to support the conviction. State
v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992). Here, Ullom
testified that he saw Matsumoto “inappropriately touch” the CW’s buttocks and
the CW testified that Matsumoto grabbed her buttocks in a manner that
made her uncomfortable. This evidence is of “sufficient quality and
probative value to enable a [person] of reasonable caution” to reach a
conclusion as to the elements of the charged offense and to support the
conviction. Id.
28
Our determination that police deception as to the polygraph test
results was coercive per se essentially resolves the appeal in this case.
Nonetheless, we address whether the circuit court erred in excluding
Matsumoto from testifying as to the totality of the circumstances surrounding
his confession to enable the jury to assess its probative weight and
reliability because of the likelihood of the recurrence of this issue in
future cases and in light of the ICA’s resolution of this point on appeal.
29
Article I, sections 5 and 14 of the Hawai‘i Constitution provide
in relevant part the following:
Section 5. No person shall be deprived of life, liberty
or property without due process of law[.]
(continued . . .)
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139 Hawaii 207, 219, 386 P.3d 844, 856 (2016); State v. Matafeo,
71 Haw. 183, 185, 787 P.2d 671, 672 (1990) (quoting California
v. Trombetta, 467 U.S. 479, 485 (1984)). Matsumoto asserts that
the failure to allow him to adduce the facts and circumstances
surrounding his confession violated his rights to present a
defense and to confront witnesses under the United States
Constitution and the Hawaiʻi Constitution.
Matsumoto argues that the circuit court abused its
discretion in precluding him from adducing evidence at trial
that his post-polygraph statements were induced by Det. Kuaana’s
misrepresentation that he did not pass the polygraph test.
Despite the general rule that evidence of polygraph test results
or a defendant’s refusal or willingness to submit to a polygraph
examination is inadmissible, Matsumoto argues, there should be
an exception to that prohibition “where such evidence is
relevant to the credibility of a confession that is introduced
by the State” based on this court’s decision in State v.
(. . . continued)
. . . .
Section 14. In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against the accused, . . . to have compulsory
process for obtaining witnesses in the accused’s favor[.]
Haw. Const. art I, §§ 5, 14.
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Kelekolio, 74 Haw. 479, 505, 849 P.2d 58, 70 (1993). In
response, the State points to the “per se rule of exclusion”
regarding polygraph test evidence and contends that “the
potential for prejudice resulting from the jury knowing
[Matsumoto] had an inconclusive result with regard to the
polygraph test would far outweigh any probative value that such
evidence might have in determining the voluntariness or
involuntariness of his subsequently obtained statement.”
In Kelekolio, this court explained the difference
between determining a statement’s “admissibility (i.e., whether
the confession or inculpatory statement was voluntarily given),”
which is a question for the court, and determining the weight
and effect of the confession or inculpatory statement with
regard to its credibility and reliability (i.e., its worthiness
of belief),” which is a question for the jury. See 74 Haw. at
518, 849 P.2d at 76 (emphasis omitted). Consequently, a
defendant has “the right to put before the jury, as the trier of
fact, all evidence, including the facts and circumstances
surrounding the making of his confession, ‘relevant to weight or
credibility.’” Id. at 516, 849 P.2d at 75 (quoting Hawai’i Rules
of Evidence (HRE) Rule 104(e) (1985)).
The Supreme Court in Crane v. Kentucky emphasized that
credibility questions, “whether of a witness or of a confession,
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are for the jury,” and a defendant has a “traditional
prerogative to challenge the confession’s reliability during the
course of the trial.”30 476 U.S. 683, 688 (1986) (citing Jackson
v. Denno, 378 U.S. 368, 386 n.13 (1964)). Accordingly,
“evidence about the manner in which a confession was secured
will often be germane to its probative weight, a matter that is
exclusively for the jury to assess.” Id. Specifically, “the
physical and psychological environment that yielded the
confession can [] be of substantial relevance to the ultimate
factual issue of the defendant’s guilt or innocence.” Id. at
689. Even voluntary confessions “are not conclusive of guilt[,]
[a]nd, as with any other part of the prosecutor’s case, a
confession may be shown to be ‘insufficiently corroborated or
otherwise . . . unworthy of belief.’” Id. (last alteration in
original) (quoting Lego v. Twomey, 404 U.S. 477, 485–86 (1972)).
The Crane court explained that “a defendant’s case may
stand or fall on [the defendant’s] ability to convince the jury
that the manner in which the confession was obtained casts doubt
on its credibility.” Id. Thus, if a defendant is “stripped of
30
Crane involved a juvenile whose confession was admitted at trial.
476 U.S. at 684-85. At trial, the juvenile sought to introduce testimony
about the environment in which he made the confession to show that the
confession was unworthy of belief, but the trial court ruled the testimony
inadmissible. Id. at 685-86.
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the power to describe to the jury the circumstances that
prompted [the] confession, the defendant is effectively disabled
from answering the one question every rational juror needs
answered: If the defendant is innocent, why did [the defendant]
previously admit [] guilt?” Id.
At the suppression hearing, Det. Kuaana and Matsumoto
both testified that Det. Kuaana told Matsumoto that he “did not
pass” the polygraph test. Before the trial began, the circuit
court ruled that there was to be no mention of the word
“polygraph” or the word “test” and that the parties were not to
say that the statement was a “material misrepresentation.” The
court stated it would only allow witnesses to say that Det.
Kuaana made a statement that was not “totally true.” The court
did not permit Matsumoto to testify or elicit from Det. Kuaana
that the not “totally true” statement was in regard to
Matsumoto’s polygraph test results.
At trial, within the strictures of the court’s ruling,
Det. Kuaana testified that he provided Matsumoto “with some
information that was not completely accurate.” Matsumoto
likewise testified that Det. Kuaana gave him “information that
[he] later on found out was not completely accurate” and that
there was “no doubt” that the information was not completely
accurate. Based, in part, on this “misleading or inaccurate
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information,” Matsumoto testified that he “started doubting what
[he] could recall.” There was no other testimony concerning
what Det. Kuaana told Matsumoto regarding the polygraph test.
The jury also heard testimony from Det. McCumsey and
Det. Kuaana that Matsumoto admitted to grabbing the CW’s
buttocks while she was watching one of the wrestling matches and
heard from Det. Kuaana that Matsumoto had “change[d] his
statement and admitted to” grabbing the CW’s buttocks. These
statements, the jury further heard, were made after Matsumoto
was told something that was not “completely accurate.”
Thus, the jury received the testimony of the
detectives that Matsumoto admitted to grabbing the CW’s buttocks
while she was watching the match, and they heard testimony that
Matsumoto was told something that was not “completely accurate.”
What the jury did not have, however, was exactly what Matsumoto
was told before he made inculpatory statements: that he did not
pass the polygraph test.
The jury was not able to hear from Matsumoto as to the
physical and mental effect of first being attached to a machine
that purports to discern lies from the truth, being subjected to
the polygraph test, and then being told that he did not pass the
test, essentially indicating that Matsumoto lied. There is no
comparison between, on the one hand, an explanation that
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Matsumoto confessed because he was told something that was not
“completely accurate,” and, on the other, an explanation that he
confessed because he was told that he did not pass a polygraph
test conducted by a police detective who specifically questioned
him on the nature of his conduct.
As a result of the circuit court’s ruling, Matsumoto
was unable to exercise his “right to put before the jury . . .
all evidence, including the facts and circumstances surrounding
the making of his confession, ‘relevant to weight or
credibility.’” Kelekolio, 74 Haw. at 516, 849 P.2d at 75
(quoting HRE Rule 104(e) (1985)). Matsumoto was not permitted
to adequately explain why he made the inculpatory statements,
“the one question every rational juror needs answered.” Crane,
476 U.S. at 689.31 Without being allowed to fully explain the
31
This court has observed that, “It would appear, at least in the
absence of stipulation, that the courts almost uniformly reject the results
of lie detector tests when offered in evidence for the purpose of
establishing the guilt or innocence of one accused of a crime, whether the
accused or the prosecution seeks its introduction.” State v. Chang, 46 Haw.
22, 32, 374 P.2d 5, 11 (1962), overruled on other grounds by State v.
Okumura, 78 Hawaii 383, 894 P.2d 80 (1995). The Chang court explained that,
“Courts do not consider the polygraph or lie detector sufficiently perfected
nor the interpretation of results in its use reliable enough to permit
testimony respecting such a test to be admitted in evidence.” Id. at 31, 374
P.2d at 11; accord Okumura, 78 Hawaii at 397, 894 P.2d at 94 (“According to
well-established precedent in this jurisdiction, polygraph results are not
admissible at trial whether offered by the prosecution or the defense
. . . .”) abrogated on other grounds by State v. Cabagbag, 127 Hawaii 302,
277 P.3d 1027 (2012); State v. Antone, 62 Haw. 346, 357, 615 P.2d 101, 109
(1980) (same).
None of these cases, however, concerned the “right to put before
the jury . . . all evidence, including the facts and circumstances
(continued . . .)
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circumstances surrounding his confession, the jury was unable to
make an informed determination regarding the credibility,
reliability, and the weight to be given to Matsumoto’s
inculpatory statements. Kelekolio, 74 Haw. at 518, 849 P.2d at
76. The circuit court’s decision to preclude Matsumoto from
adducing evidence that his post-polygraph test statements were
induced by Det. Kuaana, including being told that he did not
pass the polygraph test, severely compromised Matsumoto’s
constitutional right to a fair trial under article I, section 5
and to present a complete defense under article I, section 14 of
the Hawaii Constitution.32 Therefore, the circuit court erred
and the ICA also erred in affirming the circuit court’s ruling.33
(. . . continued)
surrounding the making of his confession, ‘relevant to weight or
credibility.’” Kelekolio, 74 Haw. at 516, 849 P.2d at 75. Any concerns of
possible prejudice to the parties may be met by a limiting instruction to the
jury that the evidence as to the polygraph was admitted solely for the jurors
to consider the circumstances surrounding the making of the confession in
order to determine weight or credibility of the confession. See, e.g.,
People v. Melock, 599 N.E.2d 941, 960 (Ill. 1992); People v. Rosemond, 790
N.E.2d 416, 425 (Ill. App. Ct. 2003); State ex rel. Kemper v. Vincent, 191
S.W.3d 45, 52 (Mo. 2006); State v. Melvin, 319 A.2d 450, 460 n.2 (N.J. 1974);
Crumpton v. Commonwealth, 384 S.E.2d 339, 343 (Va. Ct. App. 1989).
32
Several courts in other jurisdictions have considered cases
involving circumstances similar to this case. Crumpton, 384 S.E.2d at 343
(holding that a jury cannot appreciate the significance of a confession
unless the defendant was able to “fully explain the surrounding circumstances
and reasons” that he altered his prior statement after a polygraph had been
conducted); State v. Schaeffer, 457 N.W.2d 194, 196 (Minn. 1990) (holding
that “if the trial court admits the confession, the trial court ‘must permit
the jury to hear evidence on the circumstances surrounding the making of the
confession . . . for a determination of weight and credibility’” thus
allowing the defense to present evidence that the defendant confessed only
(continued . . .)
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C. Jury Instruction
A. “Intimate Parts” Instruction Was Flawed
“It has long been held that it is the judge’s duty to
ensure that all jury instructions cogently explain the law
applicable to the facts in the case before it.” State v.
Taylor, 130 Hawaii 196, 210, 307 P.3d 1142, 1156 (2013). “This
court has repeatedly stated that ‘it is the duty of the circuit
judge to see to it that the case goes to the jury in a clear and
intelligent manner,’” so that the jurors may have a clear and
correct understanding of what it is they are to decide. Id.
(. . . continued)
after being told he failed a polygraph test); Melock, 599 N.E.2d at 956, 960
(holding that “a defendant in a criminal case has a right at trial to present
evidence concerning the circumstances of his confession” and that “polygraph
evidence should have been admitted for the limited purpose of determining the
credibility and reliability of the confession”).
33
Matsumoto also argues that the circuit court abused its
discretion in providing the jury with obviously redacted transcripts of the
video recordings of his interrogations as there is a possibility that the
redactions invited speculation from the jury as to the omitted content and
that there is a substantial risk that the jury would ignore the court’s
limiting instruction not to speculate. While we decline to resolve the issue
in light of our disposition on other issues, we note that a redacted
transcript does not guarantee a defendant protection from prejudice created
by the redactions. Redacted transcripts, particularly where the redactions
are as pronounced as in this case, may have the effect of drawing the jury’s
attention to those omitted portions and may invite speculation on the part of
the jury as to the omitted content. Because of this legitimate risk, a trial
court should evaluate the nature of a transcript redaction in accordance with
the general standards of HRE Rule 403’s probative value test. In this case,
for example, the court may have considered whether the video recordings were
easily understandable without the transcript, whether the State could have
readily modified the transcript to make the redactions of the transcript less
prominent or minimize any potential prejudice (as was done with the
meticulously modified video recording of the interrogations), and whether the
blacked out passages could have been interpreted by the jury in a manner
prejudicial to the defense.
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(quoting State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310
(1980)); accord State v. Bovee, 139 Hawaii 530, 540, 394 P.3d
760, 770 (2017).
In this case, the circuit court gave, over Matsumoto’s
objection, the following instruction to the jury:
“Sexual contact” means any touching other than acts
of sexual penetration of the sexual or other intimate parts
of a person not married to the actor or of the sexual or
other intimate parts of the actor by the person, whether
directly or through the clothing or other material intended
to cover the sexual or other intimate parts.
“Sexual parts” means sexual organs.
“Intimate parts” means the buttocks and those parts
of the body typically associated with sexual relations.
In considering whether the part of the body touched
is a sexual or other intimate part, you must consider the
context in which the contact occurred.
(Emphasis added.) Matsumoto objected, maintaining that he was
requesting his proposed instruction because it more accurately
reflected the statement in State v. Silver that “a body part
which might be a sexual or other intimate part in one context
might not be in another.” Matsumoto further argued that the
court’s instruction was not specific enough, it did not fully
describe context, and it did not include the limiting language
relating to consideration of context for each individual
incident. In setting forth his objection to the court’s
instruction, Matsumoto specifically incorporated his written
arguments submitted in support of his proposed instruction 3,
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which emphasized that “it is critical that [the] jury understand
that not any touching of the buttocks is automatically sexual
contact.”
a. The instruction contained a misstatement of law
It appears that the initial error in the circuit
court’s instruction originates from its misapprehension of our
decision in State v. Silver, 125 Hawaii 1, 249 P.3d 1141 (2011).
There, the defendant argued that there was nothing in the sexual
assault statutes that suggested that the legislature considered
the buttocks to be an “intimate part” within the meaning of
“sexual contact” as defined in HRS § 707-700. Id. at 6, 249
P.3d at 1146. This court examined the plain language of HRS
§ 707–700 and concluded that the provision “does not indicate
whether the legislature considered the buttocks to be a part of
the body typically associated with sexual relations.” Id. at 7,
249 P.3d at 1147. However, in reviewing the legislative history
of section 707–700, as well as engaging in an in pari materia
reading of HRS § 712–1210, we concluded that “the legislature
intended the buttocks to be an ‘intimate part’ for purposes of
‘sexual contact’ as that phrase is defined in section 707–700.”
Id. In support of its conclusion, the Silver court cited the
following statement from State v. Kalani: “This court has noted
that the definitions of ‘sexual contact’ under HRS § 707–700 and
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‘sexual conduct’ under HRS § 712–1210 were both ‘adopted
expressly for use in penal statutes regulating conduct with
sexual connotations’ and construed the two statutes with
reference to one another.” Id. (emphasis added) (quoting 108
Hawaii 279, 286, 118 P.3d 1222, 1229 (2005)). Thus, the Silver
court held that the buttocks may be an intimate part under the
definition of “sexual contact” provided the conduct involving
the buttocks is associated with “sexual connotations” or “sexual
relations.” Id. The Silver court emphasized this holding by
quoting from the ICA decision in the same case, which
“cautioned” that “a ‘body part which might be intimate in one
context, might not be in another [context].’” Id. (citing
State v. Silver, 123 Hawaii 299, 233 P.3d 719 (App. 2010)
(unpublished table decision)). This court further quoted from
the ICA decision as follows:
with respect to the buttocks, it is not uncommon for youth
team coaches to give their players a congratulatory pat on
the buttocks in recognition of a good play or outstanding
effort. Parents hugging or carrying a young child may also
place their hands on the child’s buttocks. In these
situations, adults are knowingly touching the buttocks of
another person who is less than fourteen years old. But
because of the context, it would be unreasonable to regard
the child’s buttocks as an “intimate part” for purposes of
applying the sexual assault statutes. In these contexts,
the child’s buttocks would not be a body part “typically
associated with sexual relations.”
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Id. (emphasis added) (quoting Kalani, 108 Hawaii at 284–85, 118
P.3d at 1227–28).34
In this case, the circuit court instructed the jury
that intimate parts means the buttocks. In doing so, the court
effectively told the jury that, as a matter of law, the buttocks
is an intimate part of the body. This statement is plainly
contrary to our holding in Silver. The circuit court apparently
relied upon statements in the Silver decision that indicate that
the legislature intended the buttocks to be included within
“intimate parts” as that term is used in “sexual contact.”35 See
Silver, 125 Hawaii at 7, 249 P.3d at 1147. But the fact that
34
The Silver court next considered whether there was substantial
evidence to support the defendant’s convictions. 125 Hawaii at 7, 249 P.3d
at 1147. With regard to the late night massages, the minor testified that,
while the defendant slept next to him, the defendant woke him up at least
three different times by rubbing his buttocks and whispering to him. Id.
Based on such evidence, this court concluded that the defendant’s conduct
“constituted the touching of an ‘intimate part’ of Minor’s body.” Id. On
the other hand, as to conduct in the pool that the minor described as the
defendant holding “[k]ind of like my crotch to throw me or under my butt to
throw me,” the context of the conduct as occurring during horseplay in a pool
was insufficient as a matter of law to support a conviction. Id. at 8, 249
P.3d at 1148. The key to this court’s ruling was that the conduct was not
demonstrated to have sexual connotations or be associated with sexual
relations but, instead, involved horseplay. Id. at 8-9, 249 P.3d at 1148-49.
35
We have repeatedly cautioned, “It is not every statement of the
law found in a text-book or opinion of a judge, however well and accurately
put, which can properly be embodied in an instruction.” Territory v. Cutad,
37 Haw. 182, 186 (Haw. Terr. 1945) (quoting Garfield v. State, 74 Ind. 60,
63-64 (1881)); State v. Clyde, 47 Haw. 345, 357, 388 P.2d 846, 853 (1964);
accord In re Estate of Herbert, 90 Hawaii 443, 468, 979 P.2d 39, 64 (1999).
This caveat is even more salient when the statement is not a statement of law
but, instead, is a part of the court’s reasoning leading to the court’s
decision.
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the legislature had no intention to exclude the buttocks from
“intimate parts” is a completely different proposition than the
conclusive statement that “intimate parts” means the buttocks.
The circuit court’s instruction therefore misstated the law
insofar as it necessarily included the buttocks within the
meaning of “[i]ntimate parts.”36
b. The instruction was ambiguous and incomplete
Matsumoto also argues that the circuit court’s
instruction was not specific enough and did not provide the
meaning of context.
As stated, the circuit court instructed the jury as
follows:
“Intimate parts” means the buttocks and those parts
of the body typically associated with sexual relations.
In considering whether the part of the body touched
is a sexual or other intimate part, you must consider the
context in which the contact occurred.
(Emphasis added.)
The court’s instruction was deficient in that the
court failed to inform the jury that the touching of the
buttocks must be associated with sexual relations or have sexual
connotations in order for the buttocks to be an intimate part.
36
The circuit court’s misstatement of law that “‘[i]ntimate parts’
means the buttocks” was not corrected. The jury was never expressly
instructed that an intimate part does not mean the buttocks under certain
circumstances.
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See Silver, 125 Hawaii at 7, 249 P.3d at 1147 (concluding that
for a part of the body to be considered an “intimate part” as
used in HRS § 707-700, it must be associated with sexual
relations); Kalani, 108 Hawaii at 284-85, 118 P.3d at 1227-28
(same). Thus, the context the jury considered may have had
nothing to do with whether the conduct was associated with
sexual relations or sexual connotations, and the fact that the
touching occurred in a high school athletic setting may have
been considered as a context sufficient to render the buttocks
an intimate part.37
Relatedly, the jury was also never instructed that a
part of the body which might be sexual or intimate in one
context might not be in another. This was a significant
omission given the circuit court’s erroneous statement that the
37
Matsumoto also argues that the jury should have been instructed,
pursuant to Silver, to limit its consideration of “context” to the alleged
touching at the wrestling mat. In Silver, this court disagreed with the
ICA’s conclusion that a rational jury could infer a connection between
touching in a pool and late night massages in the home. 125 Hawaii at 4, 8-
9, 249 P.3d at 1144, 1148-49. The defendant’s subsequent conduct during the
massages, we reasoned, did not turn the defendant’s earlier conduct in the
pool--which was “otherwise not actionable”--into a criminal offense. Id. at
8-9, 249 P.3d at 1148-49. The ICA’s conclusion, this court stated, relied on
“conduct that occurred at a later time, in a different setting, and which was
the basis for three separate counts of sexual assault.” Id. at 8, 249 P.3d
at 1148.
In this case, the CW testified about two occasions when Matsumoto
touched her; however, she characterized one of those occasions as
“accidental.” It does not appear that the State sought to infer a connection
from the conduct that occurred by the wrestling mat to the conduct that the
CW testified was accidental. However, on remand, the circuit court should
address this aspect of context in its instructions.
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buttocks is an intimate part as a matter of law. The omission
had the detrimental effect of increasing the ambiguity of the
instruction.
Here, the circuit court’s jury instruction contained a
misstatement of law and was ambiguous and incomplete. Thus, the
ICA erred in concluding that Matsumoto’s argument pertaining to
the jury instructions was without merit.38 On remand, the
instruction on “intimate part” should cogently explain the law
applicable to the facts in this case. Taylor, 130 Hawaii at
210, 307 P.3d at 1156.
V. CONCLUSION
Accordingly, the ICA’s September 26, 2017 Judgment on
Appeal and the circuit court’s June 27, 2014 Judgment of Guilty
Conviction and Probation Sentence are vacated, and this case is
38
The ICA ruled that Matsumoto’s argument relied on the assumption
that the jury only followed the first part of the court’s instruction that
“‘[i]ntimate parts’ means the buttocks” and disregarded the second part
requiring consideration of the context in which the contact occurred. The
ICA held that Matsumoto failed “to provide any evidence in support of this
assumption” and that the jury is presumed to follow the court’s instructions.
Whether a jury instruction is flawed is not determined by whether
the defendant is able “to provide any evidence in support of [an] assumption”
that the jury followed a flawed portion of the instruction. Even assuming
that the circuit court’s instruction in its entirety was not technically
flawed, “[t]he ‘(q)uestion on review of instructions is not whether they were
technically correct but whether defendant could have suffered prejudice on
their account.’” State v. Napeahi, 57 Haw. 365, 377, 556 P.2d 569, 576
(1976). Given the contradictory nature of the court’s instruction, it is not
possible to determine which portion of the instruction the jury followed.
Additionally, the instruction was ambiguous and incomplete for the reasons
discussed.
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remanded to the circuit court for further proceedings consistent
with this opinion.
David M. Hayakawa /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Chad M. Kumagai
(Stephen K. Tsushima with him /s/ Sabrina S. McKenna
on the briefs)
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
52