holding that the introduction of evidence by the prosecutor during closing argument violated the defendant's right to confront the evidence
How later courts described this case
- holding that the introduction of evidence by the prosecutor during closing argument violated the defendant's right to confront the evidence
- holding that it was error for the court to instruct the prosecutor that evidence could be offered to the jury during the state’s rebuttal argument
- noting prejudice associated with improper rebuttal argument
- only a meaningful right to cross-examination satisfies the right to confrontation
Written by the judges who cited it.
The opinion
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Electronically Filed
Supreme Court
SCWC-12-0000984
14-APR-2015
09:06 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
________________________________________________________________
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
TOI NOFOA,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-12-0000984
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000984; CR. NO. 08-1-1504)
April 14, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
Three principal issues are presented in this appeal
from Petitioner Toi Nofoa’s convictions for kidnapping and
terroristic threatening in the second degree: 1) whether the
circuit court erred in instructing the prosecutor to inform the
jury during closing arguments that the complaining witness was
unavailable because she was dead—a fact not in evidence, 2)
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whether the admission of the complaining witness’s preliminary
hearing testimony at trial violated Nofoa’s right to
confrontation, and 3) whether the circuit court erred in
admitting the 911 call at trial. We conclude that the circuit
court committed error in regards to the first two issues.
Because the circuit court’s errors were not harmless beyond a
reasonable doubt, we vacate the judgment of the Intermediate
Court of Appeals (ICA) and remand to the circuit court for a new
trial.
I. Background
A. Pretrial Proceedings
In September 2008, Nofoa was charged by complaint in
the District Court of the First Circuit (district court) with
terroristic threatening in the first degree in violation of
Hawaii Revised Statutes (HRS) § 707-716(1)(e)1 and kidnapping in
violation of HRS § 707-720(1)(e).2 The complaining witness (CW)
was Nofoa’s former girlfriend.
The district court issued a “Judicial Determination of
1
At the time of the offense at issue in this case, HRS § 707-
716(1)(e) (Supp. 2007) stated, “[a] person commits the offense of terroristic
threatening in the first degree if the person commits terroristic threatening
. . . [w]ith the use of a dangerous instrument.”
2
HRS § 707-720(1)(e) (2014) states, as it did at the time of the
offense, “[a] person commits the offense of kidnapping if the person
intentionally or knowingly restrains another person with intent to . . .
[t]errorize that person or a third person[.]”
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Probable Cause for the Extended Restraint of Liberty of
Warrantless Arrestee” (JDPC) stating that there was probable
cause to arrest Nofoa for the offense of kidnapping. An
affidavit along with an addendum from the Honolulu Police
Department (HPD) supported the JDPC. The addendum to the
affidavit contained hearsay statements relaying what CW told a
HPD officer and detective regarding the alleged kidnapping and
terroristic threatening incidents.
In March 2009, six months after Nofoa was charged with
kidnapping and terroristic threatening in the first degree,
Nofoa was arrested and charged with CW’s murder. A trial
followed and Nofoa was acquitted of the murder and related
charges.
Following the murder acquittal, the State filed
notices of intent to introduce at Nofoa’s terroristic
threatening and kidnapping trial 1) a transcript of CW’s
preliminary hearing testimony in the instant case, and 2) a
recording of CW’s 911 call. Nofoa opposed the admission of this
evidence, arguing that it contained inadmissible hearsay
statements and that use of the evidence during trial would
result in confrontation clause violations. Following a hearing,
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the Circuit Court of the First Circuit (circuit court)3 ruled in
the State’s favor and allowed the admission of both the
preliminary hearing testimony and the 911 call.
The contents of the preliminary hearing testimony and
the 911 call, along with the circuit court’s disposition of the
related pretrial motions are discussed further below.
1. Preliminary Hearing
On September 19, 2008, about a week following the
incident in question, CW testified at a preliminary hearing
before the district court4 regarding the events of the evening
leading up to Nofoa’s arrest.
CW testified that she and Nofoa were in a relationship
for two and a half years. On September 11, 2008, about a month
after Nofoa and CW’s relationship ended, CW was working at the
Ko Olina resort. While CW was at work, Nofoa called her and
asked if she “was seeing another guy.” CW responded that it
“was none of his business.” At approximately 7:00 p.m., CW
finished work and proceeded to her car in the hotel parking lot.
After entering her car, she saw Nofoa approaching. Nofoa asked
to speak with CW and she complied. CW agreed to walk Nofoa to
3
The Honorable Randal K.O. Lee presided over the hearing and over
all other circuit court proceedings discussed herein. The Honorable Randal
K.O. Lee also presided over Nofoa’s murder trial.
4
The Honorable Leslie Hayashi presided over the preliminary
hearing.
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his car and during the walk, Nofoa became verbally aggressive
and pulled her by the hand. When she attempted to turn around
and walk away, he grabbed her from the back and started pulling
her by the neck with his forearm. He then reached into a
backpack that he had been carrying, grabbed a gun, and shoved it
into her neck. He held the gun to her neck, told her he was
going to shoot her, and ordered her to get into his car.
Nofoa then drove toward the North Shore. While he was
driving, Nofoa asked CW why she wouldn’t “give him a chance” and
get back with him and while doing so, cried and hit himself,
saying that CW had made him this way. Eventually, Nofoa stopped
at a gas station in Haleiwa to buy alcohol. Nofoa told CW to
stay in the car and walked toward the gas station sundry shop.
CW “jumped out the door” of the car and walked toward the store.
She saw a male working at the gas station and whispered to him
to call the police. Nofoa noticed CW exit the car and told her
to get back in the car or he would shoot the people in the
store. When CW refused, Nofoa picked her up and carried her
back into the car. As Nofoa was shoving CW into the car, she
began yelling and screaming. CW testified that because she was
resisting, Nofoa tried slamming the door while her hands and
feet were sticking out of the car. The male she had whispered
to, later identified as James Garcia, approached Nofoa’s car and
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yelled at him to leave CW alone. Nofoa then jumped on CW’s lap
and tried to close the door while he sat on her.
A female at the gas station, later identified as Ruby
McNeil, also yelled at Nofoa, telling him to leave CW alone and
informing him that she had called the police. Nofoa then
released CW, ordered her out of the car, and drove away from the
gas station. Shortly after, Nofoa returned to the gas station
and said to CW, “this is not my ending, this is not how it’s
supposed to end.” He then left the gas station. The police
arrived approximately ten minutes later.
Defense counsel’s cross-examination of CW at the
preliminary hearing spanned twenty-one pages of the transcript.
Defense counsel asked CW the reason for CW and Nofoa’s break up
and CW responded that it was because she suspected he was seeing
another woman. Defense counsel then questioned CW further about
the incident. Regarding the gun, CW stated: “I don’t know if
. . . it was a toy gun, a plastic gun, a play gun. I knew it
was a gun.” CW also stated that Nofoa did not hit her during
the altercation. Defense counsel asked if Nofoa told her their
final destination when they got into his car, to which she
answered: “He just said we were going to die.” Neither the
court nor the prosecutor interrupted the cross-examination of CW
during the preliminary hearing.
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Prior to trial, the State filed a notice of intent
to use CW’s preliminary hearing testimony based on her
unavailability. Nofoa opposed the motion and filed a motion in
limine to exclude the testimony, claiming that the hearing
offered insufficient opportunity for cross-examination. At the
hearing on the motions, Nofoa’s prior defense counsel, who
represented him at the preliminary hearing, testified that the
only materials available to him to prepare for the hearing were
the complaint and the JDPC. Defense counsel had not received
and was not aware of 1) a three-page written statement by CW
(known as an HPD-252), 2) a thirty-two-page recorded interview
of CW,3 and 3) a five-page police report that included an oral
statement by CW. It also appears that defense counsel did not
have access to the recording of the 911 call at this time.
Nofoa argued that he did not have a meaningful opportunity for
cross-examination at the preliminary hearing for two reasons: 1)
because preliminary hearings in Hawaii are confined to the issue
of probable cause, and 2) because he was not given CW’s
statements to police prior to the preliminary hearing.
The court allowed the admission of the preliminary
hearing testimony, and rejected Nofoa’s argument that he was not
afforded a full and thorough cross-examination. In reaching its
3
The transcription of CW’s recorded interview was not completed
until after the preliminary hearing.
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decision, the court noted that Nofoa’s defense counsel did not
specifically request additional discovery and that Nofoa failed
to demonstrate how the additional documents would have affected
his cross-examination.
2. 911 Call
The State also sought a pretrial ruling that the 911
call was admissible at trial. The 911 call reflects that
McNeil—one of the gas station employees—called the police right
after Nofoa initially left the gas station, stating, “[w]e need
a police here for this domestic dispute, please.” McNeil told
the 911 operator that a girl had been kidnapped. CW then took
the phone and stated: “That’s my ex and he just kidnapped me all
the way from work and brought me all the way up here.” She then
noted: “I jumped out the car over here. And then I tried to get
away, but he was slamming the door on me. And these guys over
here called the cops.” The 911 dispatcher asked what kind of
car Nofoa had been driving, the license plate number, and in
what direction the car was heading. The dispatcher concluded
the call by stating that someone would be sent to CW’s location.
CW did not mention that Nofoa had a gun during the 911 call.
At the hearing regarding the 911 call, both
Garcia and McNeil testified about what they witnessed at the
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Haleiwa gas station. Garcia testified that he saw CW outside of
the gas station through the store window and that he saw Nofoa
grab CW from behind and lift her up while she shouted “‘help me,
help me.’” Garcia approached Nofoa’s car and witnessed Nofoa
pulling CW onto his lap while she screamed “‘[y]ou’re smashing
my hand.’” Garcia grabbed the passenger door and said to Nofoa:
“‘Braddah, braddah, let her go, let her go.’” Nofoa then
released CW, and Garcia took CW to the store instructing McNeil
to call 911. Garcia described CW as “hysterical,” “scared,” and
“crying.” Garcia testified that Nofoa returned to the store and
tried to calmly convince CW to leave with him. At this point,
CW was “pissed off” and refused to leave with Nofoa. Before
Nofoa left, he told CW: “‘Sole, I’m not done with you yet.’”
McNeil’s testimony corroborated Garcia’s testimony.
McNeil described CW’s emotional state as “hysterical” and “in
pain” while she was making the 911 call. McNeil testified that
after the 911 call but before the police arrived at the store,
Nofoa said in a “very threatening” manner, something like,
“‘Sole, I’m gonna come back for you.’”
After arguments from the parties, the court granted
the State’s request to admit the 911 call, stating that it was
admissible under the excited utterance hearsay exception and was
nontestimonial in nature.
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B. Trial
During jury selection, the court noted that it did not
want references made to the prior case in which Nofoa was
acquitted of CW’s murder. Based on the concern that CW’s
identity might remind the jury of the murder case, defense
counsel requested that the court question the jury panel to
determine if they were familiar with the facts surrounding the
prior case. Specifically, defense counsel sought to determine
whether the jury panel may have heard about a “Hummer” or
“Humvee” that had been reported in the media as being at the
scene of CW’s murder:
I understand the Court’s position that the Court doesn’t
want to refer to the murder case and I understand why,
. . . and the reason why I’m concerned about it is last
time when we had voir dire during the murder, the thing
that struck me that people seemed to remember was the
Hummer, the incident with the Hummer, and they associated
that with [CW’s] name.
On this basis, defense counsel requested that the court make a
statement to the jury panel to determine if they recalled “‘an
incident in the Ewa Beach area which involved a Humvee or Hummer
type sports utility vehicle.’” The court refused, noting: “[I]n
this particular case, no humvee was involved. . . . I don’t want
the jurors to associate -- this case occurred in 2008, so . . .
four years have elapsed. I don’t want the jurors to, one, refer
to the homicide -- but we’ll play it by ear, we’ll see how it
goes, okay?”
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Following jury selection, the State began its case by
calling Garcia and McNeil, whose testimonies were similar to
their testimonies at the motion hearing. Both witnesses
identified Nofoa as the male they saw with CW on September 11,
2008 and testified that they saw Nofoa pushing CW into the car
and slamming the door on her hand because she would not let go.
Garcia testified that CW appeared “scared” when she first
approached the window of the gas station store and that she was
in a “pissed-off state” and “[r]eal mad” after the 911 call.
Garcia also testified that Nofoa told CW before he left the gas
station: “‘Sole, I going get you. We not done yet. I not done
with you yet.’”
A CD of the 911 call was played for the jury and
admitted into evidence. A CD of CW’s preliminary hearing
testimony was also played for the jury and admitted into
evidence over the defense’s objection. Before the preliminary
hearing CD was played, the court instructed the jury not to
speculate regarding CW’s unavailability:
[U]nder certain circumstances the law permits the court to
receive into evidence the testimony given by a witness in
another hearing or proceeding who is unavailable to testify
at trial. In this case the court has determined that [CW]
is unavailable to testify at trial.
You are not to speculate as to the reason why [CW] is
unavailable to testify at trial. The testimony given by
[CW] in another hearing or proceeding has been received
into evidence. Please bear in mind it is your exclusive
right to determine whether and to what extent a witness
should be believed and give weight to his or her testimony
accordingly.
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Nofoa was the only defense witness. He contended that
CW contrived the charges to punish him for his infidelity.
Nofoa testified that he met with CW, his ex-fiancé, on September
11, 2008 to drop off a birthday card for her niece. They
decided to go to the North Shore, and during the ride, CW became
angry with Nofoa, asking him if he was “‘taking us to where you
took those sluts’” in reference to CW’s volleyball teammates he
had “mess[ed] around with” in the past at Turtle Bay. Nofoa and
CW continued arguing, cursing, and yelling at each other in the
car and eventually arrived at the gas station in Haleiwa. CW
then stated to Nofoa, “‘[y]ou going to jail, [a]sshole,’” and
walked out of the car headed to the store. Nofoa saw CW making
a gesture to the gas station store attendants to call 911 and he
then “panicked . . . grabbed her, [and] picked her up” in order
to bring her back to the car. As he was trying to put CW into
the passenger seat, the cashier came to hold the door and told
Nofoa to let CW go. Nofoa complied and CW went back to the
store with the cashier. Nofoa drove away from the gas station
but then returned and told CW, “‘[w]e go home already’” and
“‘[y]ou causing too much dramas.’” Nofoa denied saying to CW,
“‘[t]his isn’t over,’” and testified that he did not have a gun
on the day of the incident. The defense rested following
Nofoa’s testimony.
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Prior to closing arguments, the court repeated the
instruction it had given the jury regarding the preliminary
hearing CD, again stating: “You are not to speculate as to the
reason why [CW] is unavailable to testify at trial.” The court
also informed the jury that the attorneys’ comments during
closing arguments should not be considered evidence.
During the prosecutor’s closing argument, he
emphasized the importance of the jury’s credibility
determination in deciding the case. Regarding Nofoa’s
testimony, the prosecutor stated: “So when you talk about
credibility, you have to ask yourself if that makes sense, or is
he telling a cockamamy story . . . .” The prosecutor stated
that the jury should think about Nofoa’s “demeanor” and “tone of
voice” during his testimony and stated that Nofoa was “an
arrogant guy.” The prosecutor also argued: “[Nofoa] had no good
intentions for [CW] at all. He was there because he wanted her
to be fearful that she’s going to die. And she had no way out.”
Finally, the prosecutor urged the jury to believe CW’s testimony
from the preliminary hearing, highlighting the testimony that
Nofoa intended to kill CW with his gun: “If you listen to what
[CW] says, he was going to kill her, and himself. And he put
the gun to her neck.”
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Defense counsel also emphasized the issue of
credibility during his closing argument. Specifically, defense
counsel stated that CW’s 911 call, in which she did not mention
a gun, was more credible than her preliminary hearing testimony,
during which she did mention the gun. Defense counsel also
illustrated CW’s motives for lying, including the fact that CW
and Nofoa had recently ended their engagement after CW
discovered that Nofoa was unfaithful. Defense counsel then
asked the jury to determine whether CW or Nofoa was telling the
truth, based in part, on the fact that they were able to see
Nofoa testify in person:
And the question that we need to ask at this point
is, if what [CW] is saying is true, okay, if it’s all true,
then why does absolutely nothing back up her story? Not a
single witness. Not a single scrap of physical evidence.
Nothing. Okay. If her horrible kidnapping story is true,
then why does [CW] not have any physical injuries?
. . . .
The reason why nothing backs up her story is because
she’s not telling the truth about how this night went down.
You got to see [Nofoa]. You got to hear him when he
testified. He had to answer questions from [the
prosecutor]. And he told you what happened on that night.
Okay.
On the other side of that coin, what do we know about
[CW]? What do we know about her credibility? Okay. We
know what kind of car she drives. We know she got a new
boyfriend a month after she broke up her two and a half --
well, her two and a half year, long-term relationship broke
up. That’s about all we know.
Okay. Because you don’t know anything about her and
her credibility, the only thing that you can do to judge
her credibility is to compare her story to any other
evidence presented in the trial. That’s the only thing you
can do, because you didn’t get to see, hear, you know, like
you did with [Nofoa].
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At this point, the circuit court interrupted defense
counsel’s closing argument and asked the attorneys to approach
the bench. The circuit court informed defense counsel that he
could not “comment on the fact that they were unable to see
[CW]” and because defense counsel did so, the jurors should be
informed why CW was not present. The court found it necessary
to inform the jury regarding CW’s unavailability because it
concluded that defense counsel opened the door by raising the
issue of unavailability during his closing argument:
THE COURT: And she’s deceased. The fact of the
matter is, you made it an issue, because you said, you said
that he was here. You could see him testify. He could
answer questions. She -- when you said that there was no
evidence to back her up, that was fine. But you went over
the line when you said you never see her testify. You
couldn’t see how she testified.
The court stated that the appropriate remedy was to
allow the prosecutor to inform the jury in rebuttal that CW was
“deceased” without saying “how she got deceased.” Defense
counsel objected, asserting that he did not believe he opened
the door to the issue of CW’s availability and that his
statements related to “arguing about the nature of the hearsay
testimony.” Defense counsel also objected on the basis that the
court sua sponte raised the issue and recommended as an
alternative remedy to strike his comment and order the jury to
disregard it. The court responded that “throughout the entire
trial [the court] indicated that nobody should say why” CW was
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not at trial and that by stating that the jury was unable to see
CW, defense counsel was “commenting that she’s available.”
Defense counsel continued his closing argument, and at
the end of the argument, the court initiated another bench
conference to further discuss its concern that defense counsel
referred to CW’s absence from trial. The court told counsel
that the defense’s comment could allow for the inference that
Nofoa was more credible than CW, because the jury was able to
see him at trial, but did not see CW. Defense counsel again
objected, noting that his intention in making the argument at
issue was to comment on the weight the jury should place on CW’s
out-of-court statements in comparison to other evidence adduced
at trial. Defense counsel repeated his request that the court
strike his comment and give a curative instruction instead of
allowing the prosecutor to state that CW was dead. The court
denied defense counsel’s request, and invited the prosecutor to
tell the jury that CW was dead: “[The prosecutor] is allowed to
say that [CW] was not available because she’s deceased. But not
why and how she’s deceased.”
Consistent with the court’s direction, the prosecutor
then delivered his rebuttal. He began by introducing to the
jury an additional fact not in evidence: “[CW] is not here
because she’s dead.” After telling the jury CW was dead, the
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prosecutor immediately drew the jury’s attention to Nofoa’s use
of a gun to threaten CW, citing CW’s preliminary hearing
testimony.
The jury found Nofoa guilty of kidnapping and
terroristic threatening in the second degree (as an included
offense of terroristic threatening in the first degree). The
circuit court sentenced Nofoa to 20 years imprisonment for the
kidnapping count and 1 year imprisonment for the terroristic
threatening count, terms to be served concurrently.
C. ICA Appeal
In a Summary Disposition Order (SDO), the ICA affirmed
Nofoa’s conviction and sentence. State v. Nofoa, No. CAAP-12-
984, 2014 WL 406564, at *4 (App. Jan. 31, 2014) (SDO). The ICA
held, inter alia, that 1) the circuit court did not display
judicial bias by instructing the prosecutor to inform the jury
that CW was dead; 2) Nofoa’s confrontation rights were not
violated when CW’s preliminary hearing testimony was admitted
into evidence because Nofoa had an adequate opportunity to
cross-examine CW at the hearing and had the same motives at
trial as he had at the hearing; and 3) the 911 call was properly
admitted under the excited utterance hearsay exception and was
nontestimonial. Id. at *1-3.
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II. Discussion
A. The Circuit Court Abused Its Discretion by Instructing the
Prosecutor To Introduce a Fact Not in Evidence and the
Error Was Not Harmless Beyond a Reasonable Doubt
Nofoa asks us to find judicial bias because the
circuit court’s actions rendered his trial fundamentally unfair.
We need not reach the question of judicial bias, however,
because we hold that the circuit court abused its discretion by
instructing the prosecutor during closing argument to introduce
the fact of CW’s death to the jury, and the resulting error was
not harmless beyond a reasonable doubt.
A trial judge has broad discretion to control the
scope of closing arguments. See State v. Adams, 61 Haw. 233,
234, 602 P.2d 520, 521 (1979) (per curiam). However, as with
other aspects of a trial in which the judge is granted great
latitude, an abuse of discretion occurs if the trial court has
“clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,
74 Haw. 85, 114, 839 P.2d 10, 26 (1992) (citing State v. Akina,
73 Haw. 75, 78, 828 P.2d 269, 271 (1992)); see also Larez v.
Holcomb, 16 F.3d 1513, 1520-21 (9th Cir. 1994) (reviewing
court’s control of closing arguments for abuse of discretion);
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United States v. Diaz, 961 F.2d 1417, 1418 (9th Cir. 1992)
(same); Adams, 61 Haw. at 234, 602 P.2d at 521 (same).
Here, the circuit court abused its discretion because
its actions permitted the prosecutor to present to the jury a
fact not in evidence that resulted in substantial prejudice to
Nofoa. To support this conclusion, we draw from our court’s
jurisprudence analyzing the consequence of a prosecutor
introducing facts outside the evidence during closing argument.
Although these cases examine the issue under the framework of
prosecutorial misconduct, they are informative here, where the
effect of the court’s instruction was to allow the State to
introduce to the jury a fact not in evidence.
During closing arguments, prosecutors are “permitted
to draw reasonable inferences from the evidence and wide
latitude is allowed in discussing the evidence.” State v.
Clark, 83 Hawaii 289, 304, 926 P.2d 194, 209 (1996) (citing
State v. Apilando, 79 Hawaii 128, 141–42, 900 P.2d 135, 148
(1995)). However, we have held that a prosecutor’s comments are
improper when they go beyond the record to discuss “matters
outside the evidence adduced at trial.” State v. Tuua, 125
Hawaii 10, 14, 250 P.3d 273, 277 (2011). Thus, in State v.
Tuua, we held that a prosecutor’s comments were improper because
they referred to the consequences of the jury’s verdict. Id.
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Specifically, during closing arguments, the prosecutor stated
that the defendant’s brother could not be successfully
prosecuted at a subsequent proceeding. Id. at 15, 250 P.3d at
278. The prosecutor’s apparent purpose in making this comment
was to dissuade the jurors from concluding that if they found
the defendant not guilty, his brother could be held responsible
for the assault at issue. Id. The court concluded that the
prosecutor’s comments, although “couched . . . as an attack on
. . . credibility” were improper because they “were not based on
the evidence in the record.” Id.
More recently, in State v. Basham, we determined that
a prosecutor’s comment during closing arguments that the
defendant lied to the police bypassed evidentiary rules and was
thus improper. 132 Hawaii 97, 114-15, 319 P.3d 1105, 1122-23
(2014). We noted with concern that the defendant’s fundamental
right to confront the State’s evidence may be compromised when a
fact not presented at trial is referenced by the prosecutor
during closing. Id. at 112-13, 319 P.3d at 1120-21 (citing
United States v. Klebig, 600 F.3d 700, 721 (7th Cir. 2009)).
Here, as in Tuua and Basham, the prosecutor’s comment
that CW was deceased caused the jury to hear a fact—for the
first time—which had intentionally not been presented during
trial by either party. Indeed, the circuit court specifically
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told the jury both prior to playing CW’s preliminary hearing
testimony and again at the close of evidence “not to speculate
as to the reason why [CW] is unavailable to testify at trial.”
In addition, during jury selection, the court demonstrated
concern that the jurors would associate CW’s death with the
instant case, noting that he did not want any reference to the
Humvee involved in CW’s murder case to be raised before the
prospective jurors. Nonetheless, the circuit court reversed its
position during closing arguments, instructing the prosecutor to
inform the jury of CW’s death in an apparent attempt to cure the
defense’s “opening the door” on the issue of CW’s availability.5
The court directed the prosecutor to inform the jurors of a
prejudicial fact not in evidence despite defense counsel’s
repeated objections, and in doing so, abused its discretion.
Because we cannot conclude that the introduction of
the fact not in evidence was harmless beyond a reasonable doubt,
we remand the case for a new trial. Under the harmless error
standard, we “must ‘determine whether there is a reasonable
possibility that the error complained of might have contributed
to the conviction.’” State v. Pauline, 100 Hawaii 356, 378, 60
P.3d 306, 328 (2002) (quoting State v. White, 92 Hawaii 192,
5
We need not reach the question of whether defense counsel opened
the door during his closing argument. Even assuming the “opening the door”
doctrine would be applicable in this context, the remedy of introducing CW’s
death was inappropriate.
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198, 990 P.2d 90, 96 (1999)). If there is such a reasonable
possibility, then the error is not harmless beyond a reasonable
doubt, and the conviction must be set aside. State v. Gano, 92
Hawaii 161, 176, 988 P.2d 1153, 1168 (1999) (citing State v.
Pulse, 83 Hawaii 229, 248, 925 P.2d 797, 816 (1996)); see also
Tuua, 125 Hawaii at 16, 250 P.3d at 279 (“An improper comment
warrants a new trial if ‘there is a reasonable possibility that
the error complained of might have contributed to the
conviction.’” (quoting State v. Hauge, 103 Hawaii 38, 47, 79
P.3d 131, 140 (2003)). Here, several factors evince a
reasonable possibility that the circuit court’s error
contributed to Nofoa’s conviction.
For one, there is a reasonable possibility that the
introduction of the fact not in evidence allowed the jury to
infer that Nofoa played a role in CW’s death, resulting in
substantial prejudice to Nofoa. The State contends such an
inference was unlikely. However, given the evidence adduced at
trial and the content of the State’s closing arguments, we
disagree. See Gano, 92 Hawaii at 176, 988 P.2d at 1168 (stating
error “‘must be examined in light of the entire proceedings and
given the effect to which the whole record shows it is
entitled’” (quoting State v. Heard, 64 Haw. 193, 194, 638 P.2d
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307, 308 (1981))). At trial, the jury heard evidence that Nofoa
used a gun to threaten his ex-girlfriend during the incident: he
“shoved” a gun into her neck; told her that they “were going to
die”; and said to her, “‘Sole, I going get you. . . . I not done
with you yet.’” Such evidence coupled with hearing that CW was
in fact dead, would allow the jury to improperly infer that
Nofoa indeed acted on his threat to fatally harm CW.
Moreover, during the State’s closing argument, the
prosecutor emphasized the testimony regarding Nofoa’s threats to
kill CW, stating: “[Nofoa] had no good intentions for CW at all.
He was there because he wanted her to be fearful that she’s
going to die. And she had no way out.” The prosecutor also
highlighted the presence of the gun, noting: “If you listen to
what [CW] says, he was going to kill her, and himself. And he
put the gun to her neck.” Thus, when the jurors heard that CW
was deceased during the prosecutor’s rebuttal argument, they had
fresh in their minds Nofoa’s purported desire to kill CW as well
as his apparent ability to carry out the threats by using the
gun in his possession.
Under these circumstances, it would have been
reasonable for the jury to conclude —or at least consider the
possibility—that Nofoa caused CW’s death. Accordingly, the
circuit court’s error resulted in a risk of undue prejudice to
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Nofoa, because it “divert[ed] [the jurors], by injecting an
issue wholly unrelated to [Nofoa’s] guilt or innocence into
their deliberations, from their duty to decide the case on the
evidence.” State v. Pacheco, 96 Hawaii 83, 95, 26 P.3d 572, 584
(2001); cf. Hawaii Rules of Evidence (HRE) Rule 404(b) (Supp.
1994) (“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith.”).
The timing of the introduction of the fact not in
evidence is also relevant. We have previously noted that “‘the
prosecutor’s argument is likely to have significant persuasive
force with the jury.’” Basham, 132 Hawaii at 115, 319 P.3d at
1123 (quoting State v. Klinge, 92 Hawaii 577, 592, 994 P.2d 509,
524 (2000)). Here, introduction of CW’s death during the
prosecutor’s rebuttal distinguished it as one of the last facts
heard by the jury prior to deliberations, further exacerbating
the risk of prejudice. That CW’s death was introduced during
the State’s rebuttal precluded Nofoa from confronting it, for
example, by informing the jury that as a matter of law, he was
not responsible for CW’s death. See, e.g., Lucas v. United
States, 102 A.3d 270, 279 (D.C. 2014) (“‘[I]mproper
prosecutorial comments are looked upon with special disfavor
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when they appear in the rebuttal because at that point defense
counsel has no opportunity to contest or clarify what the
prosecutor has said.’” (quoting Anthony v. United States, 935
A.2d 275, 284 (D.C. 2007))).
The lack of a limiting instruction also compounded the
effect of the prosecutor’s comment. Specifically, the court
failed to instruct the jurors that CW’s death should not be
considered as evidence of Nofoa’s guilt in the terroristic
threatening and kidnapping case.6 Cf. State v. Murray, 116
Hawaii 3, 19, 169 P.3d 955, 971 (2007) (holding “[t]he potential
for undue prejudice is so great that failure to give a limiting
instruction with regard to prior convictions” results in error
“even if the defendant has not requested one” (citing Evans v.
Cowan, 506 F.2d 1248, 1249 (6th Cir. 1974))); State v. Cordeiro,
99 Hawaii 390, 416, 56 P.3d 692, 718 (2002) (holding potential
for unfair prejudice related to evidentiary issue “dispelled by
the circuit court’s limiting instruction to the jury”).
6
Prior to closing arguments, the circuit court did instruct the
jury that arguments of counsel were not evidence. However, given the generic
nature of the instruction and that the court provided no specific instruction
in relation to the prosecutor commenting on CW’s death, the court’s
instruction failed to mitigate the prejudice to Nofoa. See State v. Rogan,
91 Hawaii 405, 415, 984 P.2d 1231, 1241 (1999) (holding instruction to jury
that counsels’ arguments were not evidence did not “negate[] the prejudicial
effect” of the prosecutor’s inflammatory comments); State v. Marsh, 68 Haw.
659, 661, 728 P.2d 1301, 1302-03 (1986) (holding prejudicial effect of
prosecutor’s comment not “rendered harmless” by court’s general instruction
“that the arguments of counsel are not evidence”).
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Moreover, the circuit court’s direction to the
prosecutor to present a fact not in evidence refuted the court’s
prior unavailability instruction—twice given—that the jury not
speculate as to the reason for CW’s unavailability. The
contrast between the prior instruction and the reference to CW’s
death in closing heightened the potential for juror confusion
and prejudice to Nofoa.
For the foregoing reasons, we conclude that the
circuit court abused its discretion in instructing the State to
introduce a fact not in evidence and there is a reasonable
possibility that the error might have contributed to Nofoa’s
conviction.
B. Admission of CW’s Preliminary Hearing Testimony at Trial
Resulted in a Confrontation Clause Violation Requiring
Remand
Nofoa additionally contends that the ICA erred when it
found that the preliminary hearing provided him with an
opportunity to effectively cross-examine CW. In this regard,
Nofoa asks that we create a “bright-line rule” barring the use
of preliminary hearing testimony at trial. We decline to do so.
Instead we hold that in this case, because only limited
discovery was provided to Nofoa at the preliminary hearing, and
later discovery contained significant inconsistencies, the
preliminary hearing did not provide a meaningful opportunity for
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cross-examination, resulting in a violation of Nofoa’s right to
confrontation under article I, section 14 of the Hawaii
Constitution and the sixth amendment of the United States
Constitution. Because this error was not harmless beyond a
reasonable doubt, it provides an independent basis for vacating
the ICA’s judgment and remanding to the circuit court for a new
trial.7
The confrontation clauses of article I, section 14 of
the Hawaii Constitution and the sixth amendment of the United
States Constitution require that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against” him or her. In Crawford
v. Washington, the Supreme Court of the United States held that
testimonial out-of-court witness statements are barred under the
confrontation clause of the sixth amendment, unless the witness
is 1) unavailable; and 2) the defendant had a prior opportunity
for cross-examination. 541 U.S. 36, 59 (2004). In State v.
Fields, we explained that under Crawford, “the admissibility of
testimonial hearsay [is] governed by the following standard:
where a hearsay declarant’s unavailability has been shown, the
testimonial statement is admissible for the truth of the matter
7
“‘We review questions of constitutional law de novo, under the
right/wrong standard.’” State v. Kalaola, 124 Hawaii 43, 49, 237 P.3d 1109,
1115 (2010) (quoting Jou v. Dai–Tokyo Royal State Ins. Co., 116 Hawaii 159,
164–65, 172 P.3d 471, 476–77 (2007)).
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asserted only if the defendant was afforded a prior opportunity
to cross-examine the absent declarant about the statement.” 115
Hawaii 503, 516, 168 P.3d 955, 968 (2007) (citing Crawford, 541
U.S. at 68). We additionally determined that Crawford does not
prohibit the admission of a prior out-of-court statement where
“the hearsay declarant is cross-examined at trial about the out-
of-court statement.” Id. at 523, 168 P.3d at 975. In so
holding, we noted that even prior to Crawford, our jurisprudence
supported the proposition that “sufficient cross-examination of
the hearsay declarant at trial terminated the [confrontation
clause] inquiry.” Id. (emphasis added). Ultimately, we
concluded that Fields was “afforded a meaningful opportunity” to
cross-examine the witness at trial regarding the subject matter
of the out-of-court statement. Id. at 528, 168 P.3d at 980
(emphasis added). Unlike Fields, here CW did not appear at
trial to testify as to her out-of-court statement. Nonetheless,
our discussion in Fields acknowledges that the right to confront
a witness is not satisfied simply by any cross-examination, but
instead, that the cross-examination must be sufficient and
meaningful.
Preliminary hearing testimony constitutes testimonial
hearsay and is thus subject to the two-part test of
admissibility laid out in Crawford and Fields. Fields, 115
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Hawaii at 513, 168 P.3d at 965. Here, because there is no
question as to CW’s unavailability at trial, the admissibility
of CW’s preliminary hearing testimony rests on whether the
preliminary hearing provided Nofoa with a sufficient and
meaningful opportunity for cross-examination.
Post-Crawford and Fields, our court has not developed
a standard to determine under what circumstances cross-
examination at a preliminary hearing provides the defendant with
a sufficient opportunity to confront a witness. To advance such
a standard, we are guided by our pre-Crawford cases as well as
cases from other jurisdictions that examined the issue post-
Crawford.
In State v. Faafiti, for example, we determined that a
preliminary hearing transcript was admissible at trial where
cross-examination of the witness at the preliminary hearing had
been extensive and thorough. 54 Haw. 637, 641, 513 P.2d 697,
701 (1973). In so holding, we rejected the defendant’s argument
that the cross-examination was not sufficient because a
“‘preliminary hearing in Hawai[]i is limited to [the] question
of probable cause.’” Id. However, we recognized the importance
of allowing unrestricted cross-examination at the preliminary
hearing stage, stating: “We also advise the district judges to
permit the counsel for a defendant to examine fully and
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thoroughly witnesses at all preliminary hearings.” Id. at 641-
42 n.4, 513 P.2d at 701 n.4.
In Toledo v. Lam, 67 Haw. 20, 22, 675 P.2d 773, 775
(1984), we questioned the admissibility of preliminary hearing
testimony at trial where the defendant did not have access to
relevant discovery during the preliminary hearing. In Toledo,
during the preliminary hearing at issue, the trial judge denied
the defendant’s request to produce a statement relied upon by a
State witness. Id. Toledo filed a writ of prohibition mid-
hearing arguing, inter alia, that she was denied the opportunity
to effectively cross-examine the State’s witness because her
counsel did not have access to the relevant statement. Id. at
21-22, 675 P.2d at 774-75. While we denied the extraordinary
writ, we noted that “[n]ormally, a cross-examination cannot be
full and thorough unless counsel is permitted access to the
witness’ [sic] previous statements on the matters on which the
witness is testifying . . . .” Id. at 22, 675 P.2d at 775. We
acknowledged that while discovery issues are within the judge’s
discretion, typically, such “disclosure will be necessary to the
exercise of the right of effective cross-examination.” Id.
Finally, we stated that “withholding of such matters by the
State may well prevent its later use of the witness’ [sic]
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preliminary hearing testimony if the witness is unavailable at
trial.” Id. at 22-23, 675 P.2d at 776.
In Faafiti and Toledo, we recognized two relevant
factors in determining the admissibility of preliminary hearing
testimony at trial: 1) the restrictions placed on the cross-
examination by the trial court, and 2) the discovery available
to counsel at the time of the hearing in relation to the
effectiveness of cross-examination. These factors have also
been recognized by other jurisdictions post-Crawford as relevant
in determining whether sufficient opportunity for cross-
examination is afforded during preliminary hearings, and in turn
whether preliminary hearing testimony is admissible at trial.
In Chavez v. State, for example, the Nevada Supreme
Court considered the admissibility of preliminary hearing
testimony at trial, and found that the testimony was admissible
where the defendant was able to engage in “wide-ranging cross-
examination” during the preliminary hearing when “nearly all the
discovery was complete.” 213 P.3d 476, 485 (Nev. 2009) (per
curiam). The court specifically noted that during the
preliminary hearing, the defendant “had a copy of [the
witness’s] videotaped statements to police” and used this to
question the witness about the alleged incident of sexual abuse.
Id. The court also recognized that the magistrate judge who
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presided over the preliminary hearing provided the defendant
with a full opportunity to cross-examine the relevant witness,
specifically noting that there was no evidence of any
“inappropriate restrictions on the scope” of the cross-
examination placed by the judge. Id. Accordingly, the court
held that the defendant was permitted to exercise his right to
confrontation: “Therefore, in this instance, because the
discovery was almost entirely complete and the magistrate judge
allowed [the defendant] unrestricted opportunity to confront
[the witness] on all the pertinent issues, we conclude that [the
defendant’s] [c]onfrontation [c]lause rights were not violated
by the admission of [the witness’s] preliminary hearing
testimony at trial.” Id. at 485-86.
Similarly, in People v. Torres, the Supreme Court of
Illinois considered several factors in determining that the
defendant did not have an adequate opportunity for cross-
examination of the prosecution’s key witness during the
preliminary hearing. 962 N.E.2d 919, 932-34 (Ill. 2012).
First, the court considered the motive and focus of the
examination at the preliminary hearing, concluding that at both
the hearing and at trial, “the focus of questioning is whether
the evidence supports a finding that the defendant committed the
charged crime.” Id. at 931. The court noted, however, that
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“the motive-and-focus test” could not be the “sole guide to a
resolution” of the case. Id. at 932.
Thus, the court considered two additional factors:
defense counsel’s knowledge at the time of the cross-
examination, including access to discovery; and the court’s
restrictions on defense counsel’s cross-examination. Id. at
932-33. On the issue of defense counsel’s knowledge at the time
of the preliminary hearing, Torres argued that his counsel did
not have an adequate opportunity for cross-examination, because
he did not have access to certain discovery, “namely police
reports,” which contained the prosecution witness’s statements
to police. Id. at 923. Defense counsel referenced several
statements the witness made to police that were inconsistent
with his preliminary hearing testimony. Id. The court agreed
with Torres on this issue, stating that the defendant “was not
privy to the inconsistent statements [the prosecution’s witness]
gave to police, statements that counsel might have used to
confront [the witness] and see if further changes in [his]
version of events might be forthcoming.” Id. at 933. The court
additionally took issue with the trial court’s restrictions on
counsel during the cross-examination, noting that the trial
court had sustained objections to defense counsel’s cross-
examination that inhibited his ability to adequately cross-
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examine the witness. Id. Accordingly, the court concluded that
the trial court erred in admitting the preliminary hearing
testimony at trial. Id.
We recognize that some jurisdictions have endorsed a
complete ban on the use of preliminary hearing testimony at
trial, while others have been more permissive of the inclusion
of such testimony, based on the nature of the proceedings. See,
e.g., People v. Fry, 92 P.3d 970, 972 (Colo. 2004) (en banc)
(holding preliminary hearings in Colorado do not provide
adequate opportunity for cross-examination); State v. Lopez, 258
P.3d 458, 463 (N.M. 2011) (holding admission of preliminary
hearing testimony did not violate the sixth amendment where
defendant’s motive during cross-examination was the same as at
trial). However, guided by our pre-Crawford cases, we adopt the
approach of Chavez and Torres and consider the admissibility of
preliminary hearing testimony at trial on a case-by-case basis.
Drawing from these cases, in order to determine
whether Nofoa had a sufficient and meaningful opportunity for
cross-examination at the preliminary hearing, we consider the
following factors: 1) the motive and purpose of the cross-
examination, 2) whether any restrictions were placed on Nofoa’s
cross-examination during the preliminary hearing, and 3) whether
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Nofoa had access to sufficient discovery at trial to allow for
effective cross-examination of CW.
The first two questions weigh in favor of
admissibility. First, the motive and purpose of Nofoa’s cross-
examination of CW at the preliminary hearing was sufficiently
similar to the motive and purpose Nofoa would have had to cross-
examine CW at trial, i.e., to discredit the State’s case and
accordingly CW’s testimony. Second, it does not appear that the
court restricted Nofoa’s cross-examination of CW at the
preliminary hearing. The cross-examination spanned twenty-one
pages of the transcript and the court did not interrupt during
the questioning nor did the State make any objections.
However, we agree with Nofoa that in relation to the
third factor, he was denied the opportunity for meaningful
cross-examination because he did not have access to relevant
discovery materials that would have assisted in the cross-
examination of CW. We have recognized that access to witness
statements may be relevant to determine whether the opportunity
for cross-examination at a preliminary hearing was sufficient.
See Toledo, 67 Haw. at 22, 675 P.2d at 775 (“Normally, a cross-
examination cannot be full and thorough unless counsel is
permitted access to the witness’ [sic] previous statements on
the matters on which the witness is testifying . . . .”); see
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also Torres, 962 N.E.2d at 933 (noting defense counsel at the
preliminary hearing was “not privy” to certain statements given
by the witness to support holding that preliminary hearing
testimony was inadmissible at trial). Here, at the preliminary
hearing, the only materials in Nofoa’s counsel’s possession were
the JDPC and the complaint. He lacked several of CW’s
statements, including her handwritten HPD-252 statement, a
thirty-two-page recorded interview, and a five-page police
report that included CW’s oral statement. It also does not
appear that Nofoa’s counsel had access to or knowledge of the
911 call at the time of the preliminary hearing.
Access to these discovery materials would have enabled
Nofoa’s defense counsel to pose questions relevant to a central
issue of the defense—CW’s credibility—particularly because
there were inconsistencies and/or discrepancies between CW’s
preliminary hearing testimony and her earlier statements. For
example, at the preliminary hearing, CW testified that Nofoa
used a gun to threaten her. However, during the 911 call, no
gun is mentioned. Further, during the preliminary hearing, CW
stated that on the day of the incident, Nofoa called her at work
to ask her if she was seeing another man, to which she responded
it was “none of his business.” However, in her HPD-252
statement and the thirty-two-page recorded interview, CW stated
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that when Nofoa asked her if she “was with the [g]uy” or “with
another guy,” she answered Nofoa in the affirmative.
Had Nofoa’s counsel been aware of these discrepancies,
he “might have used [them] to confront [CW] and see if further
changes in [CW’s] version of events might be forthcoming.”
Torres, 962 N.E.2d at 933. However, because Nofoa only had
access to the JDPC and the complaint, he was unable to engage in
“effective cross-examination,” Toledo, 67 Haw. at 22, 675 P.2d
at 775, of two critical defense issues: CW’s credibility and his
use of a gun. In light of the unrebutted fact of CW’s death
improperly admitted during the prosecutor’s rebuttal argument,
the latter issue was of particular importance, as discussed
supra. In sum, given the lost opportunity to confront CW in
relation to the unavailable discovery, the admission of the
preliminary hearing testimony at trial violated Nofoa’s right to
confrontation as guaranteed by article I, section 14 of the
Hawaii Constitution and the sixth amendment of the United States
Constitution.
Thus, we hold that the circuit court erred in allowing
admission of CW’s preliminary hearing testimony at trial. We
additionally hold that the error was not harmless beyond a
reasonable doubt. See State v. Mundon, 121 Hawaii 339, 368, 219
P.3d 1126, 1155 (2009) (holding constitutional error may be
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harmless if court can “‘declare a belief that it was harmless
beyond a reasonable doubt’” (quoting State v. Napeahi, 57 Haw.
365, 373, 556 P.2d 569, 574 (1976))). We are unable to say the
error was harmless beyond a reasonable doubt because CW’s
preliminary hearing testimony was a crucial piece of evidence
presented by the State. It was the only evidence at trial that
mentioned Nofoa’s possession of a gun and accordingly was the
only evidence to support the State’s first degree terroristic
threatening case.8 Although Garcia’s and McNeil’s testimony and
the 911 call provided evidence corroborating some of the
preliminary hearing testimony, we believe there is at least a
reasonable possibility that the preliminary hearing testimony
might have contributed to Nofoa’s conviction. See Pauline, 100
Hawaii at 378, 60 P.3d at 328. This is particularly true
because the case involved a credibility determination between CW
and Nofoa, and CW’s preliminary hearing testimony directly
conflicted with Nofoa’s testimony at trial. Accordingly,
because there is a reasonable possibility that the admission of
8
The jury found Nofoa guilty of the lesser included offense of
terroristic threatening in the second degree, which did not require the use
of “a dangerous instrument.” Compare HRS § 707-716(1)(e) (Supp. 2007) (“A
person commits the offense of terroristic threatening in the first degree if
the person commits terroristic threatening . . . [w]ith the use of a
dangerous instrument.”) with HRS § 707-717(1) (2014) (“A person commits the
offense of terroristic threatening in the second degree if the person commits
terroristic threatening other than as provided in section 707-716.”).
Notwithstanding, the importance that the State placed on the
preliminary hearing testimony is evinced by its decision to charge Nofoa with
the first degree crime.
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the preliminary hearing testimony at trial might have
contributed to Nofoa’s conviction, we remand to the circuit
court for a new trial.9
C. The 911 Call Was Properly Admitted as a Hearsay Exception
and Did Not Result in a Confrontation Clause Violation
With the purpose of providing guidance to the circuit
court and the parties on remand, we address Nofoa’s claim
regarding the admissibility of the 911 call. See Basham, 132
Hawaii at 112, 319 P.3d at 1120.
Nofoa contends that the circuit court erred in
admitting the 911 call because 1) it did not qualify under the
excited utterance hearsay exception; and 2) it was testimonial
in nature and not subject to cross-examination, and thus
violated his right to confrontation.10 We disagree.
Pursuant to HRE Rule 803(b)(2) (1993), “[a] statement
relating to a startling event or condition made while the
9
Because we find error in the court’s admission of the preliminary
hearing testimony, we need not reach Nofoa’s argument that the court abused
its discretion in providing a recording of the preliminary hearing testimony
to the jury during deliberations. However, we note that the trial court is
not required to provide all evidence admitted at trial to the jury during
deliberations. See, e.g., State v. Kassebeer, 118 Hawaii 493, 506, 193 P.3d
409, 422 (2008) (reviewing trial court’s decision to allow handgun that was
admitted into evidence into jury room for abuse of discretion).
10
We review both questions de novo under the right/wrong standard.
See State v. Moore, 82 Hawaii 202, 217, 921 P.2d 122, 137 (1996) (“[W]here
the admissibility of evidence is determined by application of the hearsay
rule, there can be only one correct result, and ‘the appropriate standard for
appellate review is the right/wrong standard.’” (quoting Kealoha v. County of
Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 675 (1993))); Kalaola, 124 Hawaii at
49, 237 P.3d at 1115 (holding constitutional questions reviewed de novo under
the right/wrong standard).
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declarant was under the stress of excitement caused by the event
or condition” is admissible hearsay. In State v. Machado, we
explained that to qualify under this hearsay exception (i.e., an
“excited utterance”), “the proponent of the statement must
establish that: (1) a startling event or condition occurred; (2)
the statement was made while the declarant was under the stress
of excitement caused by the event or condition; and (3) the
statement relates to the startling event or condition.” 109
Hawaii 445, 451, 127 P.3d 941, 947 (2006). Nofoa only disputes
the second requirement, claiming that CW was not in fact “under
the stress of excitement” during the call. Garcia’s and
McNeil’s testimony at the hearing regarding the 911 call refute
Nofoa’s claim. Garcia described CW as “hysterical,” “scared,”
and “crying” at the time of the incident and said that CW was
“pissed” when she was on the phone. Similarly, at the time
McNeil passed the phone to CW so that she could speak to the 911
dispatcher, McNeil described CW’s emotional state as
“hysterical” and “in pain.” Considered along with the other
circumstances surrounding the 911 call, this testimony
demonstrates that CW’s statement was not the product of
reflective thought and instead constituted an excited utterance.
See State v. Delos Santos, 124 Hawaii 130, 138, 238 P.3d 162,
170 (2010) (citing evidence that complainant was “‘shaken’”
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“‘crying’” and “‘in a lot of pain’” to determine that
complainant’s “mental and physical condition supports the
prosecution’s argument that her statement was an excited
utterance”).
Nofoa’s claim that the 911 call violated his right to
confrontation is also unavailing. To be subject to the
confrontation clause analysis discussed above, the out-of-court
statement must be testimonial in nature. Fields, 115 Hawaii at
516, 168 P.3d at 968. Statements are considered
“‘nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to
meet an ongoing emergency.’” Id. at 514, 168 P.3d at 966
(quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
Testimonial statements, in contrast, involve circumstances that
“‘objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later
criminal prosecution.’” Id. (quoting Davis, 547 U.S. at 822).
CW’s statements during the 911 call were
nontestimonial because “any reasonable listener would recognize
that [CW] . . . was facing an ongoing emergency” and the purpose
of the call was to request police assistance. Davis, 547 U.S.
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at 827. At the beginning of the 911 call, McNeil told the
operator: “We need a police here for this domestic dispute,
please.” CW’s statements occurred outside the presence of
police protection and CW was still facing the threat of violence
from Nofoa when the call was placed, as Nofoa had just left the
gas station. Moreover, the questions asked by the dispatcher,
i.e., the type of car Nofoa was driving, the direction in which
he was heading, and the car’s license plate number, demonstrate
a purpose of finding Nofoa to prevent further harm or stated
otherwise, to “resolve the present emergency, rather than simply
to learn . . . what had happened in the past.” Davis, 547 U.S.
at 827.
Because CW’s statements were nontestimonial, the two-
part test from Ohio v. Roberts, 448 U.S. 56 (1980), applies.
See Fields, 115 Hawaii at 516, 168 P.3d at 968 (“We therefore
reaffirm Roberts’ continued viability with respect to
nontestimonial hearsay.”).11 Under Roberts, a nontestimonial
out-of-court statement is admissible if “(1) the declarant is
‘unavailable,’ and (2) the statement bears some indicia of
reliability.” Fields, 115 Hawaii at 528, 168 P.3d at 980. As
previously noted, CW’s unavailability is undisputed. Regarding
11
Roberts was abrogated by Crawford but is still applicable in
relation to nontestimonial hearsay. Fields, 115 Hawaii at 516, 168 P.3d at
968.
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the second requirement, CW’s 911 call statements were
sufficiently reliable because they fell “‘within a firmly rooted
hearsay exception,’” as discussed above. State v. Sua, 92
Hawaii 61, 71, 987 P.2d 959, 969 (1999) (quoting State v. Ortiz,
74 Haw. 343, 361, 845 P.2d 547, 556 (1993)). Accordingly, the
911 call was admissible.12
III. Conclusion
For the foregoing reasons, the ICA’s March 3, 2014
judgment on appeal and the circuit court’s October 9, 2012
judgment of conviction and sentence are vacated. This case is
remanded to the circuit court for a new trial.
Craig W. Jerome and /s/ Mark E. Recktenwald
Susan L. Arnett
for petitioner /s/ Paula A. Nakayama
Sonja P. McCullen /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
12
We also agree with the ICA that “Nofoa fails to prove that
portions of the 911 call were inadmissible on other grounds.” Nofoa, SDO at
*3.
43