Monday, March 22, 2010

HSC Rejects SCOTUS Interpretation of Sixth Amendment, Adopts new Standard for Hawai'i

State v. Mattson (HSC March 19, 2010)

Background. Mattson was charged with terroristic threatening in the first degree. HRS § 707-715. During the three-day jury trial, the State called various witnesses. Mattson testified in his defense. At closing the prosecutor said this:

He told you a lie before. He had a chance to sit through the evidence. He had to make his story gibe [sic] with what you've heard. . . . He sat through the evidence. There is a 911 tape. [One 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.

This case is about credibility.

The jury found Mattson guilty of terroristic threatening. The ICA affirmed.

Sixth Amendment not Offended by Accusations of Tailored Testimony by Defendant. Mattson argued that the prosecutor's comments infringed upon his rights under the Hawai'i Constitution to be present at trial and testify on his own behalf. The case hinged upon the HSC's acceptance of Justice Ginsburg's dissent in Portuondo v. Agard, 529 U.S. 61 (2000). In that case, the prosecutor argued at closing that the defendant had "the benefit" of listening to all the other witnesses before he testified. Id. 529 U.S. at 63-64. The SCOTUS majority held that this comment did not infringe upon his right to be present and testify at trial. Id. at 68, 71. Justice Ginsburg, joined by Justice Souter, dissented. Justice Ginsburg wrote that the comment "transforms a defendant's presence at trial from a Sixth Amendment right into an automatic burden on his credibility." Id. at 76. Justice Ginsburg believed that "every defendant who testifies is equally susceptible to a generic accusation about his opportunity for tailoring [his or her testimony]." Id. at 77-78.

But HSC Departs from Federal Interpretations of the Constitution. The HSC--"as the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai'i Constitution"--can "give broader protection under the Hawai'i Constitution than that given by the federal constitution." State v. Arceo, 84 Hawai'i 1, 28, 928 P.2d 843, 870 (1996). Even "when the United States Supreme Court's interpretation of a provision present in both the United States and Hawai'i Constitutions does not adequately preserve the rights and interests sought to be protected, we will not hesitate to recognize the appropriate protections as a matter of state constitutional law." State v. Bowe, 77 Hawai'i 51, 57, 881 P.2d 538, 544 (1994). The only issue for the HSC to decide was whether to adopt the majority in Portuondo.

It didn't. The defendant's rights under the confrontation clause is essential to a fair trial. See State v. Peseti, 101 Hawai'i 172, 180, 65 P.3d 119, 127 (2003); State v. Apilando, 79 Hawai'i 128, 131, 900 P.2d 135, 138 (1995). Like the SCOTUS, under prosecutor is not permitted to comment on the defendant's right to remain silent at trial. State v. Wakisaka, 102 Hawai'i 504, 515, 78 P.3d 317, 328 (2003). The HSC characterized Wakisaka broadly and noted that "a prosecutor's comments may not infringe on a defendant's constitutional rights."

The HSC agreed with the dissent and held that under Article I, section 14 of the Hawai'i Constitution, it is improper "for the prosecution to make generic accusations during closing argument that a defendant tailored his [or her] testimony based solely on the defendant's exercise of his [or her] constitutional right to be present during the trial."

Not a "Generic Accusation" Because Prosecutor Referred to Specific Evidence Contradicting the Defendant's Testimony. Turning to the facts, the HSC held that the prosecutor's comments did not arise to a violation of the Hawai'i confrontation clause. Although the prosecutor argued to the jury that Mattson had a chance to sit through the other witnesses' testimony and although she specifically accused Mattson of tailoring his testimony, the prosecutor did refer to specific evidence adduced at trial that directly contradicted Mattson's testimony. This reference, according to the HSC, indicated that it was not a "generic accusation" that the testimony was tailored based solely on the defendant's presence. Thus, there was no violation of the Hawai'i Constitution and no prosecutorial misconduct.

Justice Acoba's Dissent. Justice Acoba did not agree with the SCOTUS majority and it did not think that the HSC went far enough. "[T]his approach, as shown by several state decisions, provides little protection to defendants who not only have the constitutional right to be present at trial, but, as in our jurisdiction, are required by law to do so." Justice Acoba was referring to Hawai'i Rules of Penal Procedure (HRPP) Rule 43, which requires the defendant's presence at all stages of the trial. Justice Acoba believed that the better approach came from New Jersey in State v. Daniels, 861 A.2d 808 (N.J. 2004), which prohibits the prosecution from referring to "the fact that the defendant was in the courtroom or that he heard the testimony from other witnesses, and was thus able to tailor his [or her] testimony." Id. at 819. According to Justice Acoba, the prohibition is not limited to closing argument. "[A]ll accusations of tailoring at any stage at trial, including cross examination and summation, impermissibly burden a defendant's right to be present at trial and confront witnesses[.]" Justice Duffy joined.

An Unworkable Standard? The majority adopted a test, which prohibits the prosecutor from arguing at making a "generic accusation" that the defendant narrowly tailored his or her testimony based solely on the exercise of the right to be present at trial. So when would the majority's standard protect the defendant? It seems that so long as the prosecutor argues that there was direct evidence contradicting the defendant's testimony, the prosecutor is in the clear. But what if there was something less than direct evidence of something contradictory? What if there was simply an inference or a logical fallacy? Would that be closer to a "generic accusation" based solely on the right to be present? And even if it was, in how many cases would those circumstances arise?

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