Prosecutor's Accusation that Defendant "Benefited" from Attending his own Trial Violated Confrontation Clause

State v. Walsh (HSC August 23, 2011)

Background. Timothy Walsh was charged with assault in the second degree. HRS § 707-711(1)(b). Walsh was present at trial, including jury selection. At trial, there was evidence that Walsh was outside of Ocean's Grill and Bar in Kihei at around 1:30 in the morning arguing with his sister, Stephanie Walsh. A different group intervened and five men attacked Walsh. Walsh was punched, kicked, pushed and stomped on. Walsh started to slump away from the fracas and as he started moving away he swung at Kapena Kramer. Kramer broke his jaw. Walsh testified that he swung blindly as he was trying to get away from the mob attacking him. The bouncer at Ocean's testified. According to him, Walsh was calm, cool, and collected. Walsh was not cut or hurt when he approached Kramer and punched him. The bouncer believed that Walsh "blind sided a helpless person." By the time the police showed up, the entire affray was over.

During her closing argument, the prosecutor commented on Walsh's testimony:

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 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 at 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?

. . . .

But the fact of the matter is it is important that when the Court 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 opportunity for acquiring information . . . .

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.

Walsh's counsel did not object. The jury found Walsh guilty as charged. Walsh appealed and the ICA vacated the conviction and remanded for new trial on the grounds that the prosecutor committed misconduct that was plain error. The prosecution petitioned for certiorari.

The Prosecutor's Comments were Plain Error (still). The HSC first rejected the prosecution's claim that the comments about Walsh's testimony and his demeanor were not plain error. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Hawai'i Rules of Penal Procedure Rule 52(b); State v. Wakisaka, 102 Hawai'i 504, 513, 78 P.3d 317, 326 (2003) ("If defense counsel does not object at trial to prosecutorial misconduct," court may recognize plain error "when the error committed affects substantial rights of the defendant."). According to the HSC, the issue here was whether the prosecutor's comments violated the Confrontation Clause in the Hawai'i Constitution. The right of confrontation is a substantial right. State v. Kassebeer, 118 Hawai'i 493, 516, 193 p.3d 409, 432 (2008). The HSC also noted that the comment could potentially chill the defendant's right to be present at every critical stage of the trial. That right is also a substantial one. See Onaka v. Onaka, 112 Hawai'i 374, 380, 146 P.3d 89, 95 (2006).

The Prosecutor Cannot Suggest that a Defendant Tailored his or her Testimony to the Evidence Presented at Trial. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused[.]" Haw. Const. Art. I, Sec. 14. Under the state confrontation clause, a prosecutor cannot "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." State v. Mattson, 122 Hawai'i 312, 326, 226 P.3d 482, 496 (2010).

The prosecution argued here that there was no generic accusation because there was no express accusation. The HSC rejected this argument based on cases from other jurisdictions. Portuondo v. Agard, 529 U.S. 61 (2000) (Ginsburg, J., dissenting); Hart v. United States, 538 A.2d 1146, 1149 (D.C.C.A. 1988); State v. Jones, 580 A.2d 161 (Me. 1990); Martinez v. People, 244 P.3d 135, 141 (Colo. 2010). According to the HSC, the prosecutor may not have expressly accused Walsh of tailoring his testimony, but she did argue that he benefitted from hearing the evidence presented at trial. This comment left the jurors with the impression that Walsh was tailoring his testimony because he exercised his right to be present at trial.

Prosecutor also Shouldn't have Referred back to Voir Dire Answers. The HSC also examined the prosecutor's reliance on voir dire answers during her closing argument. Prosecutors may "state, discuss, and comment on the evidence as well as . . . draw all reasonable inferences from the evidence." State v. Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209 (1996). Relying on cases from other jurisdictions and implicit in the standard jury instructions, the HSC held that juror's responses or even a potential juror's response are not evidence. State v. Ashley, 22 So.3d 1045, 1059 (La. Ct. App. 2009). Thus, if the prosecution wanted to impeach Walsh "through the use of voir dire comments, it should have proffered the comments into evidence." And because it was not evidence, the prosecutor cannot rely on voir dire responses in her accusation against Walsh that he was tailoring his testimony. The HSC made it clear that Mattson requires the prosecutor to base the accusation on evidence, not on the mere fact that the defendant was present throughout the trial.

Looking at the Jury is not a Crime. The HSC also took issue with the fact that the prosecutor attacked Walsh's ability to look at the jury while he testified. Looking at the jury, according to the HSC, "is not an unnatural or extraordinary act[.]" This kind of argument would "invite the jury to convict on the basis of conduct as consistent with innocence as with guilt[.]" Portuondo, 529 U.S. at 79 (Ginsburg, J. dissenting, joined by Souter, J.). It is "not only improper, but would also disregard the truth-seeking purpose of trial[.]" Id.

The Error is not Harmless. Lastly, the HSC examined whether the prosecutorial misconduct was harmless beyond a reasonable doubt. Plainly erroneous misconduct affects the substantial rights of the defendant. State v. Wakisaka, 102 Hawai'i at 513, 78 P.3d at 326. "In order to determine whether a defendant's substantial rights have been affected[,] the court must determine whether there is a reasonable possibility that the error might have contributed to conviction." State v. Murray, 116 Hawai'i 3, 14 n. 9, 169 P.3d 955, 966 n. 9 (2007). This is based on three factors (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. State v. Mainaaupo, 117 Hawai'i 235, 252, 178 P.3d 1, 18 (2008). The HSC held that all three factors weighed in Walsh's favor.

First, the misconduct directed the jury away from the evidence and invited them to assess Walsh's credibility based on his presence throughout the trial. This infringed on his constitutional rights. Second, there was no curative instruction. Finally, the evidence against Walsh is not overwhelming. It turned largely on Walsh's credibility. Thus, it was likely that the error might have contributed to the conviction. State v. Pacheco, 96 Hawai'i 83, 97, 26 P.3d 572, 586 (2001); State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986).

A Double Plain Error Analysis? The majority's structure of this opinion is a bit different. It starts off with a plain error analysis because the defense did not object to the comment. At first, it seems that if the error affects a defendant's "substantial rights," then the court can recognize plain error. Seems simple enough, but first there must be an error. So what should come first? The ICA applied the plain error analysis at the end of the analysis. To confuse things further, the HSC applied a harmless error analysis after finding that the comment was erroneous. Does this mean that plain error and harmless error are two different tests? Not really, in footnote, the HSC explained how the plain error analysis leads to the three-step harmless error analysis. Which then makes the initial plain-error analysis even more troubling.

Chief Justice Recktenwald's Concurrence. Chief Justice Recktenwald took a very different approach, but arrived to the same conclusion. For him, the first issue was whether a prosecutor could comment on the demeanor of a testifying defendant and whether a prosecutor can comment on voir dire statements. Finally, Chief Justice Recktenwald examined the comments in light of Mattson. Justice Nakayama joined.

CJ: Prosecutors Should not have to Characterize "Testimonial Conduct" on the Record. The Chief Justice believed that a prosecutor can comment on a testifying defendant's demeanor and mannerisms during closing argument. He relied primarily on cases from other jurisdictions. People v. Edelbacher, 766 P.2d 1, 30 (Cal. 1989); Patty v. State, 6 So.2d 399, 400 (Ala. 1942); State v. Fogg, 119 A. 799, 801 (N.H. 1923); Commonwealth v. Parente, 440 A.2d 549, 554 (Pa. Super. Ct. 1982); Good v. State, 723 S.W.2d 734, 736 (Tex. Crim. App. 1986). There are a line of other cases, noted the Chief Justice, that have held that the demeanor while testifying is also evidence in addition to the actual testimony. United States v. Modica, 663 F.2d 1173, 1180 (2d Cir. 1981). And although the majority agreed that commenting on the demeanor of the defendant while on the stand was within bounds, the CJ disagreed with the majority's notion that the demeanor should be placed on the record.

According to the CJ, this "rule is unduly restrictive. Trial lawyers will be compelled to ask the court, in the midst of testimony, to note observations of demeanor which may be possible to be useful in summation. Moreover, such descriptions are likely to be met with objections and counter-descriptions from opposing counsel. Finally, even disregarding the additional interruptions, some non-verbal cues, such as distinctly uncomfortable appearance, are not susceptible to verbal description." Thus, the CJ believed that the prosecutor's comments about Walsh's ability to look the jurors in the eye was "testimonial conduct" that constituted evidence worthy of comment during her closing argument.

CJ: References to Voir Dire Statements that Reflect the Common Experience of Jurors are Fair Game for Prosecutors. The CJ also agreed that statements during voir dire are not evidence. However, trial lawyers can appeal to the common experience of the jurors. If statements during voir dire reflect that common experience, then the CJ believed that a prosecutor should be able to refer to these statements during summation. Here, the comment had to do with eye contact. The CJ wrote that this should be within bounds of a prosecutor's summation.

So Why is this a Concurrence? The CJ, and Justice Nakayama, believed that the prosecutor's comment that Walsh "benefitted from seeing all [the] witnesses" was an improper generic tailoring in violation of the Confrontation Clause. There was no other explanation.


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