Refusing to Reenact Something is the Equivalent to Invoking the Right to Remain Silent

State v. Beaudet-Close (HSC June 24, 2020)

Background. One night in Kailua-Kona, Anthony Beaudet-Close got into an altercation with Luke Ault. Ault was severely injured with life-threatening injuries. Beaudet-Close turned himself into the police and while he was held in police custody, he met with Detective Walter Ah Mow. Det. Ah Mow advised Beaudet-Close of his right to remain silent, his right to counsel, and his right to refuse answering any questions.

Beaudet-Close said he was willing to talk to him. He told Det. Ah Mow he was on foot when Ault approached him with a knife. Ault said “there you are, we got some shit to settle.” He lunged at him with the knife. Beaudet-Close kicked and punched Ault and got the knife out of his hand. He admitted to kicking Ault seven to eight times, including two or three kicks to the head. He said he never met Ault before, but he heard Ault was on the lookout for him because of Beaudet-Close’s ex-girlfriend. Det. Ah Mow asked Beaudet-Close if he would go to the scene with him and walk him through what happened. He said he felt uncomfortable about that. Det. Ah Mow then asked if he would reenact the beating. He again declined.

The interrogation was recorded on a video. Beaudet-Close was charged with attempted murder in the second degree and assault in the first degree. The jury saw the video in its entirety—including the part where Beaudet-Close refused to reenact the fight. Beaudet-Close moved for a mistrial on the grounds that the jury saw evidence of him exercising his right to remain silent. The circuit court with the Hon. Judge Melvin Fujino presiding denied the motion. Beaudet-Close was found guilty and sentenced to life in prison. The ICA affirmed.

Refusing to Reenact Something is an Invocation of the Right to Remain Silent. No person “shall be compelled in any criminal case to be a witness against oneself[.]” Haw. Const. Art. I, Sec. 10. During a custodial interrogation, the suspect may invoke his or her right to remain silent at any time. The HSC was persuaded by the logic and rationale in Hurd v. Terhune, 619 F.3d 1080 (9th Cir. 2010).

There, the police detained and interrogated Hurd after his wife was found shot dead in their home. Id. at 1083. Hurd waived his right to remain silent and told the police the firearm accidentally discharged. Id. When the dectives asked him to show them how it happened, he refused. Id. The Ninth Circuit Court of Appeals held that Hurd “unambiguously invoked his right to silence.” Id. at 1088-1089. That silence cannot be used against him at trial and the prosecutor’s reference to his refusal to show the police how it happened was not a harmless error. Id. at 1087, 1091.

The HSC applied the same analysis here. Beaudet-Close was in custody and questioned by the police after he waived his right to remain silent. According to the HSC, unambiguously invoked his right to remain silent when he refused to show Det. Ah Mow how the beating happened.

Invoking the Right to Remain Silent Stays Outside the Presence of the Jury. “A concomitant of the right to remain silent is the prohibition on the prosecution from commenting on a person’s exercise of that right.” State v. Tsujimura, 140 Hawai'i 299, 314, 400 P.3d 500, 515 (2017). Moreover, introducing undisputed evidence of the defendant’s right to remain silent at trial infringes on the right to remain silent itself. State v. Domingo, 69 Haw. 68, 69, 773 P.2d 690, 691 (1987). The HSC explained that Domingo presents a test to determine if the evidence infringes on the defendant’s right.

[I]n a situation where the prosecution publishes evidence that a defendant has invoked the right to remain silent, the controlling inquiry is whether or not the jury would infer from that evidence that the defendant invoked that right. If the jury can make such an inference, the prosecutor has impermissibly used silence against the defendant at trial.

The HSC applied this test to Beaudet-Close’s case. The jury saw the video in which Beaudet-Close refused to participate in the reenactment. It was not told that this constituted an invocation of the right to remain silent, but it is likely that the jury could infer that Beaudet-Close was hiding something by refusing to cooperate. This was close enough for the HSC to determine that it was the equivalent of telling the jury that he invoked his right to remain silent. The HSC held that using the evidence at trial infringed on the right to remain silent and vacated the judgment.