HSC Rethinks What it Means to Conduct Police Interrogation

State v. Baker (HSC June 18, 2020)

Background. Mustafa Baker was indicted with two counts of sexual assault in the first degree and one count of sexual assault in the third degree. Prior to trial, the prosecution filed a motion to determine the voluntariness of Baker’s statement to the police.

At the hearing, the prosecution called Det. Brian Tokita. Det. Tokita testified that he met with Baker while Baker was in custody. He went over his constitutional rights using a form. According to Det. Tokita, Baker said that he understood his rights and signed the form showing that he would waive them and speak to the police.

The prosecution then presented evidence of an audio recording of Det. Tokita’s interrogation. The recording starts with Det. Tokita asking basic introductory questions: Baker’s date of birth, level of education, age, and place of employment. Baker was 23 and worked at, of all places, a bakery. He also said he never finished the eighth grade. He did not know his address, but aid he was living in Waimanalo.

Det. Tokita moved onto the case itself. He said that he had been “working on this case from the time it started.” He told Baker to trust him when he said that he knew “a lot about what happened.” He confronted Baker that he knew Baker met the complainant on New Year’s Eve in a park in Kailua and that this was Baker’s chance to “tell me what happen[ed] from there in detail.”

Baker said he was drinking liquor in the park with his sister, the complainant, and another person, GK. Baker said that GK told Baker he had sex with the complainant, “that’s all. That’s all I know.” Baker said it happened when he went with some friends to get cigarettes. When he came back, GK was ready to fight the complainant’s boyfriend. Det. Tokita interrupted.

“I know that’s not true . . . I know that didn’t happen. Like I said I’ve been investigating this case for a long time. . . . And I know what happened. . . . I’m just given you a chance to see if you going tell me what happened.”

Baker told Det. Tokita he was trying to protect GK. GK was bloody when he got back to the park. Det. Tokita again interrupted. “I know that’s not how it went.” Baker said he didn’t sexually assault anyone.

Det. Tokita changed his approach. He told Baker he thought he was a “straight up guy” because he had no record as an adult. He acknowledged that “everyone gets blasted on New Year’s Eve and that’s where I think everything went wrong because you just made an error in judgment.” Det. Tokita went on to accuse Baker of sexually assaulting the complainant with GK. Baker did not admit it.

Det. Tokita went on and commented that he didn’t “think you did it or meant to do it. You were just not in the right frame of mind. . . . That’s where people go wrong, when they’re in the wrong frame of mind.” He added that alcohol is how “people get themselves into trouble, cause they lose their inhibitions[.]”

Det. Tokita moved on to talk about women. “Women,” he said “are a lot more promiscuous, you know. They flirt more, you know when they’re on alcohol . . . cause they lose their inhibitions.” Det. Tokita assured Baker that compared to the others, he was not a “bad dude.” Baker agreed.

“So I’m giving you a chance now, Mustafa. This is how you’re going to be remembered,” said the detective. Baker still denied it.

Det. Tokita kept going. “Our brains are programmed a certain way,” he said. “Guys are programmed to procreate.” Baker still denied it and Det. Tokita changed his tactics once more.

“She’s not an adult,” he said, “if this hits the media, it would be . . . twenty-three year old boy raps a f#$%ing juvenile and how does that sound?” Baker answered, “That’s not me.” Det. Tokita replied, “Exactly. Cause when people hear that, what they going think that juvenile, how that juvenile is, you think?” He urged Baker to come clean. “When you go to court,” said the detective, “you think people ant to hear somebody that’s going to . . . deny, deny when the evidence is like insurmountable against them, but they’re just going to deny, deny to the bitter end. . . . They want to hear somebody that’s you know what, . . . I made a mistake, . . . that’s not me, but I made a . . . mistake, I did and I’m sorry.” Baker still made no admissions.

Det. Tokita kept at it. “We get physical evidence, so you cannot deny that you didn’t have sex with her. . . . We have physical evidence and nobody can deny physical evidence.”

Baker repeated that he did not beat the complainant. Det. Tokita responded, “Mustafa, come on. Now you’re jerking me around again.” “Did she want to fuck? No. . . . So why’d you fuck her then?”

Baker finally responded “cause I was all fucked up.” Baker confessed to having sex with the complainant.

The circuit court presided by Hon. Judge Karen S. S. Ahn, granted the motion in part and at trial most of the confession was presented at trial. Baker was found guilty as charged and sentenced to twenty years imprisonment on each count running consecutively. The ICA affirmed in a published opinion.

Involuntary Confessions are Inadmissible. “[N]o person shall be compelled in any criminal case top be a witness against himself or herself.” Haw. Const. Art. I, Sec. 10. See also U.S. Const. Am. V. This 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. Matsumoto, 145 Hawai'i 313, 324, 452 P.3d 310, 321 (2019). The rule comes from “a desire that the police not become law breakers in the process of achieving society’s valid law enforcement objectives.” Id. And so for a statement to be voluntarily given, the decision to make a statement to the police must be an unconstrained choice free from coercion. State v. Won, 137 Hawai'i 330, 340, 372 P.3d 1065, 1075 (2015).

Improper interrogation techniques are per se coercive when the police employ a falsehood extrinsic to the facts of the alleged offense and is, according to the HSC, “of a type reasonably likely to procure an untrue statement or to influence an accused to make a confession regardless of guilt.” See State v. Kelekolio, 74 Haw. 479, 511, 849 P.2d 58, 73 (1993). If the police ploy is intrinsic, then the court must conduct a case-by-case examination of the totality of the circumstances. Id. at 502, 849 P.2d at 69.

Extrinsic falsehoods go beyond the immediate facts of the alleged offense. They include assurances of divine salvation in the event of a confession, promises of mental health treatment instead of prison, and misrepresentations of legal principles or the results of a polygraph test. Id. at 512, 849 P.2d at 73. Examples of intrinsic deceptions include telling the suspect that the murder victim is still alive, a claim that clothes were found at the crime scene, or an assertion that cameras were recording the area at the time of the crime. See State v. Matsumoto, 145 Hawai'i 313, 324, 452 P.3d 310, 321 (2019).

The HSC clarified the analysis here into a single question:

We clarify that the relevant inquiry in determining whether deceptive interrogation tactics are improperly coercive is whether the deception is reasonably likely to procure an untrue statement or influence an accused to make an involuntary confession. Our law requires us to examine the entire record and make an independent determination of the voluntariness of Baker’s custodial statement to the police.

The HSC then took on Det. Tokita’s tactics.

Det. Tokita’s Tactics Weigh Toward Involuntariness. The HSC addressed Det. Tokita’s comment that if this case “hits the media” and the perception of his involvement in the case. The HSC concluded that this tactic was an “implied promise that Baker would receive a benefit if he chose to confess and consequences if he did not.” See State v. Rettenberger, 984 P.2d 1009, 1018 (Utah 1999). According to the HSC, a promise for lenient treatment in the event of a confession is a tactic that is reasonably likely to elicit an untrue statement or influence the accused to make an involuntary confession. This technique weighs against voluntariness.

Det. Tokita also sought to minimize Baker’s conduct by blaming drugs, alcohol, and the promiscuity of intoxicated women. According to the HSC, “when an interrogating officer suggests that the commission of the crime was understandable, justifiable, or otherwise excusable, it implies to the accused that if a confession is given and the officer’s version of events is adopted, the crime will be viewed less seriously and punishment will be more lenient.” This technique known as “minimization” is another implied promise that if the suspect adopts this minimized version of events, the crime itself will be less egregious. Relying on cases from other jurisdictions, the HSC noted that while minimization would not necessarily throw out the confession, it is a factor weighed against voluntariness.

Resorting to Gender Stereotypes to Extract a Confession is Condemned. The HSC took special note on Det. Tokita’s use of gender stereotypes. The detective’s comments that women are “more promiscuous” when drunk and that men are “programmed to procreate” promote improper prejudices and stereotypes about how men and women behave. According to the HSC, “it is a fundamental duty of this court to call attention to those interrogation techniques that are so offensive to a civilized system of justice that they must be condemned under principles of due process.”

The HSC made it clear that “[g]ender discrimination is expressly prohibited by our constitution and precedent of the United States Supreme Court.” State v. Levinson, 71 Haw. 492, 499, 795 P.2d 845, 849-850 (1990); Weinberger v. Wiesenfeld, 420 U.S. 636, 637-639 (1975). The HSC held that when interrogation techniques “run afoul to our state’s prohibitions on discrimination are so offensive that they must not be countenanced under principles of due process.” Moreover, the HSC noted that it has never hesitated in excluding evidence when it is necessary to preserve the integrity of our judicial process. State v. Bowe, 77 Hawai'i 51, 59, 881 P.2d 538, 546 (1994).

And so, “in an effort to deter police interrogators from making discriminatory statements and to protect the integrity of the judicial system, we now hold that interrogation techniques that rely on stereotyping protected classes of persons are inherently coercive, and strongly weigh against any subsequent statement being voluntary.” Here, Det. Tokita’s use of discriminatory tactics weigh strongly against voluntariness.

The “False Friend” Tactic. Det. Tokita also resorted to the “false friend” tactic in which he presented himself as a friend who was there to help Baker out. The interrogator will loyally help the suspect, advise him to confess only if it will be beneficial. This technique, according to the HSC, is not enough to render a confession involuntary but it is one of the circumstances pushing toward coercion.

The Deliberate Falsehood of Physical Evidence. Det. Tokita also told Baker that he had physical evidence—DNA—that linked him to the sex crimes. There was none. It was a lie about the facts of the case and intrinsic. The HSC took issue with the officer’s lies about incontrovertible physical evidence. Det. Tokita’s lies about the physical evidence again weighed strongly toward involuntariness.

The Strong-Arm Tactics were Involuntary. In the end, the HSC held that Det. Tokita’s combined tactics weighed toward coercion. The HSC vacated the judgment and remanded the case for a new trial. 

Justice Nakayama’s Dissent. Justice Nakayama went into detail about the brutality of the attack on a runaway girl on New Year’s Eve in 2012. She had been hospitalized for a month after being found bleeding from head to toe in a park bathroom. She suffered trauma all over her body, including her genital opening and anus. She testified that Baker had repeatedly kicked and punched her face and stomach before she was knocked unconscious by a glass bottle being smashed on her head. She awoke to find herself naked with Baker on top of her sexually assaulting her.

Justice Nakayama took issue with the majority’s analysis. She disagreed that this was coercive. “It is clear to me from the audio recording of Baker’s confession that it was voluntarily given.” She wrote that the majority’s expectations about how an interview should occur “distorts the reality of human conversation.” She declared the majority of exaggerating and misconstruing Det. Tokita’s tactics in order to “create the specter of coercion where there is none.”

Her dissent also focused on what she called the “bizarre” holding about using gender discrimination as a way of building rapport with the suspect. “We have never before policed the language used by officers who are interrogating defendants by a state action standard. . . . While I agree that the sentiments expressed by Detective Tokita reflect unfortunate generalizations about how men and women behave, I do not agree that Detective Tokita erred by employing them in an attempt to put Baker at ease and encourage Baker to tell the truth about what happened.” In the end, she “respectfully but strongly” dissented.

Chief Justice Recktenwald’s Concurrence and Dissent. The Chief Justice agreed with the majority that the lies about the DNA evidence was unduly coercive. Any statements made after that lie was given should have been excluded at trial. However, the error was harmless on one of the counts. The CJ also agreed with Justice Nakayama’s analysis about Det. Tokita’s tactics and found no error.

This is a Big Case. The majority was well aware of the implications in this case. In its lengthy conclusion it acknowledged that the complainant suffered very serious injuries but maintained that “the more heinous the crime, the more care must be exercised by the presiding judge to see that defendatn’s rights are protected.” State v. Uyesugi, 100 Hawai'i 442, 462, 60 P.3d 843, 863 (2002).