Prosecutor's Comments on Defendant's Presence in Courtroom Cost State the Conviction


State v. Walsh (ICA May 26, 2010)

Background. Walsh was charged with assault in the second degree. HRS § 707-711(1)(b). Walsh was arguing with his sister outside Ocean's Bar and Grill in Kihei, Maui at around 1:30 in the morning, when a group of four or five men interrupted. The men yelled at Walsh and started fighting with him. They kicked, pushed, and punched Walsh in the parking lot until he was down on the ground. Walsh crawled away from them and stumbled as he stood up. At his trial, Walsh testified that he swung blindly upon standing up and punched Kapena Kramer in the face. The manager at Oceans, however, testified that Walsh was cool and collected when he punched Kramer. The punch fractured Kramer's jaw in two places and knocked him unconscious.

At closing argument, the prosecutor argued that before he testified, Walsh

benefitted from seeing all these witnesses, heard what they were going to say. What's important about that is not only that, he heard the voir-dire [sic] 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?

Walsh did not object. The jury found Walsh guilty as charged.

Good Timing on the Confrontation Clause Issue. Walsh argued that the prosecutor's accusation that Walsh was tailoring his testimony at closing violated his rights under the Confrontation Clause in the Hawai'i Constitution. At the time the briefs were filed, the arguments relied on a United States Supreme Court case called Portuondo v. Agard, 529 U.S. 61 (2000), in which Justice Ginsberg dissented. The ICA observed that while the case was pending, the HSC in State v. Mattson, 122 Hawai'i 312, 226 P.3d 482 (2010), adopted Justice Ginsberg's reasoning and held that under the Hawai'i confrontation clause, "generic accusations of tailoring during closing argument that are based only on a defendant's presence throughout the trial burden the defendant's constitutional right to be present at trial and could discourage a defendant from exercising his constitutional right to testify on his own behalf." Id. at 326, 226 P.3d at 496. That, according to the ICA, became the issue.

Generic Comments Standing Alone Violate Confrontation Clause. In Mattson itself, the HSC held that the prosecutor's comments did not arise to a "generic accusation of tailoring" because the prosecutor alluded to evidence at trial that directly contradicted the defendant's testimony. That, according to the ICA, did not happen here. The ICA, in applying the Mattson standard, found that the prosecutor here made only generic accusations and did not refer to any of the evidence adduced at trial. According to the ICA, "the statement addressed only the possible nefarious consequences associated with Walsh exercising his constitutionally [-]protected rights."

Not Objecting is not a Problem . . . at Least here. When defense counsel fails to object to improper remarks by the prosecutor at closing, the court must "determine whether the statements were improper and, if so, whether they constituted plain error that affected [Defendant's] substantial rights." State v. Suan, 121 Hawai'i 169, 174, 214 P.3d 1159, 1164 (App. 2009). The ICA noted that the generic accusations were indeed improper. The ICA also concluded that the evidence against Walsh was not overwhelming and that "the pivotal issue was the credibility of the witnesses." The ICA, thus, recognized plain error and remanded the case for a new trial. See State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986).

Voir dire not the Issue, so Nevermind the Transcript. In a footnote, the ICA rejected the State's claim that this issue of prosecutorial misconduct was not properly before the court. A transcript of the voir dire was not part of the record. That didn't matter, according to the ICA, because the issue pertained to what the prosecutor said at closing, not what happened during voir dire.

Editor's Note. This is the first published opinion authored by Judge Lawrence Reifurth.

Judge Fujise's Concurrence. Judge Fujise divided the prosecutor's comments into two parts. In the first part, the prosecutor said that Walsh "benefited 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." That first part, according to Judge Fujise, did not pass the Mattson test because it was not based on any of the evidence supporting the inference that Walsh tailored his testimony. The second part, believed Judge Fujise, made a second point. According to Judge Fujise, the prosecutor commented that during voir dire jurors stated that they find those who make eye contact more believable so it is only natural for Walsh to take that cue and look the jurors in the eye during his testimony. This second part for Judge Fujise did not arise to a violation of Confrontation Clause. It was not a "generic accusation" but was based on Walsh's conduct after he heard voir dire.

A Healthy Intermediate Court. Mattson may have given us the standard--prosecutors cannot make "generic accusations" that the defendant tailored his or her testimony after seeing all of the evidence--but the HSC did not find a violation of the Confrontation Clause. This is the first application of the Mattson test, and it is important to see a different outcome. It suggests that a rigorous application of the test is a fair and durable standard. This case also shows the classic role of an intermediary appellate court in a certorari system, like ours. Leave the announcing of standards to the HSC, but leave application of those standards to the ICA.

Update: The Maui News revealed the prosecutor.


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