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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              24-JUN-2020
                                                              08:14 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


                          STATE OF HAWAII,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                      ANTHONY G. BEAUDET-CLOSE,
                   Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 16-0368K)

                              JUNE 24, 2020

  RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY NAKAYAMA, J.

          We held in State v. Mainaaupo, 117 Hawaii 235, 178

P.3d 1 (2008), that the foundational privilege against self-

incrimination, commonly referred to as the “right to remain

silent,” attaches during post-arrest police interrogation.             We
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later expanded the scope of this privilege to pre-arrest

detainment.    State v. Tsujimura, 140 Hawaii 299, 400 P.3d 500

(2017).     This case explores if a suspect’s refusal to reenact

the incident for which the suspect is being interviewed invokes

the right to remain silent and if the prosecution’s reference to

the suspect’s refusal at trial violates that right.

            In 2016, Petitioner/Defendant-Appellant Anthony G.

Beaudet-Close (Beaudet-Close) was involved in an altercation

with Luke Ault (Ault) during which Beaudet-Close allegedly

punched and kicked Ault multiple times.         As a result of the

altercation, Ault sustained permanent and life-threatening

injuries.     Beaudet-Close was charged with Attempted Murder in

the Second Degree and Assault in the First Degree.

            At trial, the State played for the jury a video of a

detective interviewing Beaudet-Close (police interview video).

The police interview video concluded with Beaudet-Close

declining the detective’s request that Beaudet-Close reenact the

altercation.

            Beaudet-Close filed a motion for a mistrial after the

jury viewed the police interview video, arguing that it was an

impermissible comment on his invocation of his right to remain

silent.     The circuit court denied Beaudet-Close’s motion and

trial continued.


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          The jury convicted Beaudet-Close of Attempted Murder

in the Second Degree and the circuit court sentenced Beaudet-

Close to life in prison.      The ICA affirmed the Judgment of

Conviction and Sentence on appeal.

          In his application for writ of certiorari, Beaudet-

Close argues that he invoked his right to remain silent when he

refused to participate in a reenactment and that the

prosecutor’s decision to play a video of that refusal before the

jury was an improper comment on his invocation of that right.

          We agree.     We hold that Beaudet-Close invoked his

right to remain silent when he declined to participate in a

reenactment of the encounter and that his right to do so was

infringed when the prosecution played the police interview video

before the jury at trial.

                             I.   BACKGROUND

          On November 9, 2016, the State of Hawaii (the State)

charged Beaudet-Close by complaint with Attempted Murder in the

Second Degree and Assault in the First Degree.          The charge arose

from an altercation that took place between Beaudet-Close and

Ault on October 28, 2016 in Kailua Kona on the island of Hawaii.

Ault was seriously injured during the altercation.




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A.    Trial

            Beaudet-Close’s jury trial began on July 11, 2017.1

During opening statements, the State presented its theory that

on the night of the incident, Beaudet-Close hit Ault in the face

so hard that he put him into a coma.          Beaudet-Close attacked

Ault with so much force, the State argued, because he intended

to kill Ault.     The State asserted that multiple witnesses who

saw the attack would testify that Beaudet-Close kicked and

punched Ault, but that Ault never struck Beaudet-Close back or

tried to defend himself.        The State explained that Ault, who

remained in a coma for weeks after the incident, suffered

multiple facial fractures, a subdural hematoma, and a traumatic

brain injury.

            In Beaudet-Close’s opening statements, his counsel

explained that Beaudet-Close was walking through a dangerous

area where drugs were frequently sold and consumed when Ault

approached him with a knife and said “[w]e got shit to settle.”

Beaudet-Close argued that he acted in self-defense and did not

intend to kill Ault.

      1.    Detective Walter Ah Mow’s Testimony

            The State called retired Hawaii Police Department

(HPD) Detective Walter Ah Mow (Detective Ah Mow).             Detective



1     The Honorable Melvin H. Fujino presided.

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Ah Mow worked for the Criminal Investigation Section in Kona in

2016 and was assigned to the “assault investigation” that is the

subject of this appeal.     He testified that Beaudet-Close became

a person of interest after a witness identified Beaudet-Close as

the assailant.    Detective Ah Mow stated that on November 7,

2016, he interviewed Beaudet-Close, who had already turned

himself in for the assault and was confined to a cellblock.

Detective Ah Mow video recorded the interview.

          According to Detective Ah Mow, Beaudet-Close told him

that on the night of the incident, Ault had brandished a knife.

Detective Ah Mow testified that Beaudet-Close’s statement did

not make sense and that he was never able to corroborate

Beaudet-Close’s assertion that Ault had brandished a knife.

Detective Ah Mow stated, “[t]here was no knife involved.”

          Detective Ah Mow explained that he advised Beaudet-

Close of his “rights regarding the making or not making of a

statement . . . [and] his rights regarding an attorney” using

the standard Hawaii Police Department Advice of Rights form

(Advice of Rights Form).      Detective Ah Mow read the Advice of

Rights Form to Beaudet-Close, who initialed it in various

places.   Beaudet-Close’s initials and verbal statements

indicated that he understood the Advice of Rights Form, that he

waived his right to an attorney, and that he was willing to


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answer questions and to make a statement.            The State moved a

copy of the Advice of Rights Form into evidence.

              The State then moved to place Exhibit 13A, a copy of

the police interview video, into evidence.            Beaudet-Close

objected as to foundation and on Hawaiʿi Rules of Evidence (HRE)

Rule 4032 grounds.       The circuit court overruled those objections

in the following exchange:

              [BEAUDET-CLOSE’S COUNSEL]: Uh, just as to foundation,
              Your Honor, I don’t know – I haven’t reviewed that
              disc but otherwise that’s my objection.

              THE COURT: Court will receive 13A.

              . . . .

              [BEAUDET-CLOSE’S COUNSEL]: And if I could, Your
              Honor, I also object to 13A on 403 prior to
              publication.

              THE COURT: Overruled.

The State published the video to the jury.

        2.    The Police Interview Video

              The police interview video depicts Detective Ah Mow

interviewing Beaudet-Close at the Kona Police Station on

November 7, 2016.       First, Detective Ah Mow confirmed with

Beaudet-Close that Beaudet-Close had turned himself in and had


2   HRE Rule 403 provides,

        Exclusion of relevant evidence on grounds of prejudice,
        confusion, or waste of time. Although relevant, evidence may be
        excluded if its probative value is substantially outweighed by
        the danger of unfair prejudice, confusion of the issues, or
        misleading the jury, or by considerations of undue delay, waste
        or time, or needless presentation of cumulative evidence.


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reviewed the Advice of Rights Form with the detective.            Beaudet-

Close verbally waived his right to remain silent and his right

to the presence of an attorney, and signed the Advice of Rights

Form, indicating that he waived those rights.          Detective Ah Mow

informed Beaudet-Close that if he chose to answer questions, he

had the right to stop answering questions at any time.            Beaudet-

Close stated that he was willing to answer Detective Ah Mow’s

questions.

            Next, Detective Ah Mow showed Beaudet-Close a photo

lineup.    Beaudet-Close was unable to identify Ault.         Beaudet-

Close stated that on the night of the incident he was walking

when a man said his name, said “there you are, we got some shit

to settle,” identified himself as Ault, and lunged at Beaudet-

Close with a knife.     Beaudet-Close explained that he kicked and

punched Ault and succeeded in kicking the knife out of Ault’s

hand.     Beaudet-Close asserted that he did not use any weapons,

but that he punched Ault once and kicked Ault seven to eight

times, including two or three kicks to the head.           Beaudet-Close

stated that he then called the police.

            Beaudet-Close stated that he had never met Ault

before, but that he had heard Ault was “out to look for him”

because of Beaudet-Close’s ex-girlfriend.

            After Beaudet-Close explained the altercation and the



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events surrounding it, Detective Ah Mow requested that Beaudet-

Close participate in a video reconstruction of the altercation

at the scene “because I want your side of the story.”            Detective

Ah Mow explained that Beaudet-Close did not have to participate

if he did not want to participate.        After Beaudet-Close stated

that he was scared, Detective Ah Mow again told him that he did

not have to participate in the reenactment.          Beaudet-Close

continued that he was afraid for his life and for his family

because he thought Ault’s friends might try to seek revenge.

          Detective Ah Mow stated, “[s]o how do you feel about

doing a video reconstruction.       Like I say, we don’t have to.”

Beaudet-Close replied, “right now I’m not comfortable with

that.”

          Beaudet-Close continued that if he had known Ault

would be at the scene of the altercation that night, he would

have parked somewhere else and walked a different way.

Detective Ah Mow told Beaudet-Close that he had no further

questions and told Beaudet-Close that since the authorities were

not sure about the extent of Ault’s injuries, the investigation

was still ongoing.    Beaudet-Close again expressed that he feared

for his family.    Detective Ah Mow ended the interview.

    3.    Motion for Mistrial

          On July 13, 2017, the day the jury saw the video of



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Beaudet-Close’s interview, Beaudet-Close filed a Motion for

Mistrial.    Beaudet-Close argued that the admission of his

“refusal to provide statements and cooperate in a ‘scene

reconstruction’” in the police interview video was “plainly

impermissible.”     Beaudet-Close asserted that the only reason the

prosecutor would have played the portion of the video where

Beaudet-Close refuses to participate in the scene reconstruction

was to imply Beaudet-Close’s guilt.         Beaudet-Close concluded

that when “the State knowingly played for the jury [footage of

Beaudet-Close] choosing to invoke his right to remain silent,

refuse [to answer] future statements and decline to participate

in furthering the Hawaii Police Department’s investigation,” the

State “violated [Beaudet-Close’s] rights against compelled self-

incrimination guaranteed by article I, section 10 of the Hawaii

Constitution.”

            At trial the following morning, the circuit court

denied Beaudet-Close’s motion.        The circuit court observed that

Beaudet-Close did not object to the video at the motion for

voluntariness hearing.      The circuit court then stated:

            Further, the court would find as far as State’s
            Exhibit 13A, which was received yesterday, that the
            defendant had already waived his rights, gave his
            story and towards the end of the State’s Exhibit 13A,
            the Detective is asking if he would like to do a
            reconstruction and go physically show so he can tell
            his side of the story, meaning what he just told the
            Detective. So the court would deny the defendant’s
            motion for mistrial



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       4.    Beaudet-Close’s Testimony

             Beaudet-Close testified last.         Beaudet-Close testified

that on the night of the incident, he went to the Aloha Gas

Station near the scene of the incident at around 9:00 p.m.

Beaudet-Close began to walk down a road near the gas station

when someone said “[t]here you are.           We got some shit to

settle.”     Beaudet-Close stated that the person identified

himself as “Luke” and lunged at Beaudet-Close with a knife that

was no more than three inches long.           Beaudet-Close testified

that after Ault fell to the ground, “I kicked him in his stomach

maybe two times and I noticed the knife in his hand so I kicked

it.    And it was still in his hand, I kicked it again.             And from

there I kicked him in his face and he stopped moving right

there.”     Beaudet-Close stated that he feared he was still in

danger, so he started to yell.          Beaudet-Close explained that he

then called 911.       Beaudet-Close testified that he left when he

heard the police arrive because he was still scared.              Beaudet-

Close stated that he did not intend to kill Ault.

B.     Verdict and Sentencing

             On July 19, 2017, the jury found Beaudet-Close guilty

of Attempted Murder in the Second Degree.            On September 13,

2017, the circuit court sentenced Beaudet-Close to life in

prison and ordered that he pay $3,041.66 in restitution.



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C.    Appeal

            The ICA affirmed the circuit court’s Judgment of

Conviction and Sentence.

            With respect to the police interview video, the ICA

held that Beaudet-Close’s statements declining to participate in

the reconstruction did not invoke his right to remain silent.

The ICA distinguished the facts of this case from those of State

v. Rodrigues, 113 Hawaii 41, 147 P.3d 825 (2006), by observing

that in this case, Beaudet-Close “was not refusing to speak

further on the matter.”       The ICA continued, “rather than remain

silent, [Beaudet-Close] continued to speak and explain his fear

of returning back to the scene and his ongoing discomfort with

the situation.”      Therefore, the ICA held, Beaudet-Close did not

invoke his right to remain silent and the circuit court did not

err in admitting the video.        The ICA affirmed the circuit

court’s Judgment of Conviction and Sentence and entered its

Judgment on Appeal on July 9, 2019.

            Beaudet-Close filed a timely Application for Writ of

Certiorari on July 11, 2019.         In his application, Beaudet-Close

asserts that, contrary to the ICA’s conclusion that Beaudet-

Close did not assert his right to remain silent, the Ninth

Circuit’s holding in Hurd v. Terhune, 619 F.3d 1080 (9th Cir.

2010) makes clear that when police request that a suspect


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reenact an incident, the suspect’s refusal is an unambiguous

invocation of the right to remain silent.           Beaudet-Close

continues that the facts of this case are even worse than those

of Hurd because in Hurd the prosecutor merely made references to

the defendant’s refusal to reenact the incident, but here, the

prosecutor played a video of Beaudet-Close refusing to reenact

the altercation before the jury.           Therefore, Beaudet-Close

concludes, “[t]his visual is equally, if not more, prejudicial

to [Beaudet-Close’s] constitutional right to remain silent.”

                          II. STANDARD OF REVIEW

A.    Constitutional Issues

            “Issues of constitutional interpretation present

questions of law that are reviewed de novo.”            Sierra Club v.

Dep’t of Transp. of State of Hawaii, 120 Hawaii 181, 196, 202

P.3d 1226, 1241 (2009).

                              III. DISCUSSION

            We hold that Beaudet-Close unambiguously invoked his

right to remain silent3 when he declined Detective Ah Mow’s




3     Both the United States Constitution and the Hawaii Constitution protect
a criminal defendant’s privilege against self-incrimination, or “right to
remain silent.” See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
      The Fifth Amendment to the United States Constitution provides: “No
person shall . . . be compelled in any criminal case to be a witness against
himself[.]” U.S. Const. amend. V.
      Likewise, article 1, section 10 of the Hawaii Constitution states, “nor
shall any person be compelled in any criminal case to be a witness against
oneself.” Haw. Const. art. 1 § 10.

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request that Beaudet-Close participate in a reenactment of the

incident.      Moreover, consistent with this court’s holding in

State v. Domingo, 69 Haw. 68, 733 P.2d 690 (1987), Beaudet-

Close’s privilege against self-incrimination was infringed when,

over his objection, the circuit court permitted the jury to view

a video of Beaudet-Close invoking that privilege.

A.     Beaudet-Close invoked his right to remain silent when
       he refused to participate in the reenactment.

             Beaudet-Close argues that the ICA erred in concluding

that Beaudet-Close’s decision not to participate in the

reenactment did not constitute an invocation of his right to

remain silent.4      This assessment is correct as a matter of

federal law.      See Hurd, 619 F.3d 1080.

             In Hurd, the United States Court of Appeals for the




4     The ICA held that, under Rodrigues, 113 Hawaii at 49, 147 P.3d at 833,
Beaudet-Close did not invoke his right to remain silent because he was not
“refusing to speak further on the matter.” However, the ICA’s application of
Rodrigues was incorrect. In holding that a defendant’s refusal to repeat his
statement on tape was an invocation of his right to remain silent, the
Rodrigues court explained that

             when the questioning of a suspect is otherwise complete,
             and the police request that the suspect reiterate his or
             her statement in order to memorialize it electronically,
             the suspect’s refusal to do so amounts to an invocation of
             the right to remain silent precisely because the suspect is
             refusing to speak further on the matter.

Id.
      Here, Detective Ah Mow ceased questioning after Beaudet-Close stated
that he did not want to go back over his statement by reenacting it.
Beaudet-Close continued to speak, but only about his fear for himself and his
family. Therefore, under the Rodrigues analysis, Beaudet-Close invoked his
right to remain silent.

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Ninth Circuit (Ninth Circuit) analyzed the prosecution’s use at

trial of defendant Hurd’s refusal to participate in a

reenactment of how he shot his wife.          619 F.3d at 1082.      There,

police took Hurd into custody after his wife was killed in a

shooting at his home.      Id. at 1083.      Hurd expressed his

willingness to speak to police without an attorney, to answer

detectives’ questions, and to give his side of what had

happened.    Id.   Hurd explained that he had offered to lend his

gun to his estranged wife, but that it had accidentally

discharged while he attempted to load it for her.            Id.     When

detectives asked Hurd to reenact how the shooting had occurred,

Hurd refused.      Id. at 1084.   The Ninth Circuit held that

            Hurd unambiguously invoked his right to silence when
            the officers requested that he reenact the shooting
            [and] Hurd responded to the officers’ requests by
            saying, among other things, “I don’t want to do
            that,” “No,” “I can’t,” and “I don’t want to act it
            out because that – it’s not that clear.”

Id. at 1088-89 (emphasis added).          Because “a suspect may invoke

his right to silence at any time during questioning and that []

silence cannot be used against him at trial,” id. at 1087, the

Ninth Circuit held that the prosecutor’s reference to Hurd’s

invocation of his right to silence was not harmless.               Id. at

1090.   The Ninth Circuit therefore vacated Hurd’s conviction.

Id. at 1091.

            Applying the Hurd analysis to this case, Beaudet-Close



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clearly invoked his right to remain silent when he refused to

participate in a reenactment of Ault’s beating.           Here, Beaudet-

Close turned himself in to police as the perpetrator of Ault’s

beating.     In custody, Beaudet-Close waived his right to an

attorney and agreed to answer questions and provide his side of

the story.    After Beaudet-Close provided his statement and

answered Detective Ah Mow’s questions, Detective Ah Mow asked

Beaudet-Close if he would return to the scene of the incident to

reenact the events that had transpired.          Beaudet-Close stated

that he did not feel comfortable doing so and explained that he

was scared.    Detective Ah Mow again asked Beaudet-Close if he

would reenact the events and Beaudet-Close again said that he

would not, because he was scared.         At that point, Detective Ah

Mow ended the interview.5       Pursuant to the Hurd analysis,

Beaudet-Close invoked his right to silence when he refused to

reenact the incident.      See Hurd, 619 F.3d at 1088-89.

           Because we are persuaded by the Ninth Circuit’s

interpretation in Hurd, we hold that a suspect’s refusal to

reenact the incident for which the suspect is in custody is an

unambiguous invocation of the suspect’s right to remain silent.

Beaudet-Close invoked his right to remain silent when he


5     That Detective Ah Mow ceased questioning when Beaudet-Close declined to
participate in the reenactment might indicate that Detective Ah Mow
considered that refusal an invocation of Beaudet-Close’s right to remain
silent.

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repeatedly indicated to Detective Ah Mow that he did not wish to

reenact his altercation with Ault.

B.    Beaudet-Close’s right to remain silent was infringed
      when video footage of him invoking that right was
      shown, over his objection, to the jury.

            Beaudet-Close argues that his invocation of his right

to remain silent was impermissibly used against him at trial

when the prosecutor played before the jury a video of him

invoking that right.

            Article 1, section 10 of the Hawaii Constitution,

which states “nor shall any person be compelled in any criminal

case to be a witness against oneself[,]” provides for a criminal

defendant’s right to remain silent.           Haw. Const. art 1, § 10.

We have held that “[a] concomitant of the right to remain silent

is the prohibition on the prosecution from commenting on a

person’s exercise of that right.”           Tsujimura, 140 Hawaii at 314,

400 P.3d at 515.      As such, “the prosecution may not comment on a

defendant’s failure to testify.”           State v. Wakisaka, 102 Hawaii

504, 514, 78 P.3d 317, 327 (2003).

            In State v. Domingo, this court analyzed when the

introduction of evidence showing that a defendant invoked

certain constitutional rights infringes upon those rights.               69

Haw. at 69, 733 P.2d at 691.         There, we held that “[t]he

introduction, over objection, of evidence that as [sic]


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defendant had invoked his rights under Sections 10 and 14 of

Article 1 of the Constitution of the State of Hawaii, where

there was no issue as to whether the defendant had done so,

would infringe on those rights.”            Id. (citing Doyle v. Ohio, 426

U.S. 610 (1976)).       We went on to explain that the introduction

of this evidence would infringe the defendant’s right to remain

silent because a jury would likely infer the defendant’s guilt

from his invocation of his right.           Id. at 70, 733 P.2d at 691-

92.

             In Domingo, the defendant signed an Advice of Rights

Form, which was introduced as evidence.            Id. at 69, 733 P.2d at

691.     The sections where the defendant had invoked his

constitutional rights were redacted.            Id.   Nevertheless, this

court held that given the context of the rest of the evidence,

the jury could and probably did infer that the defendant had

invoked his constitutional rights.           Id. at 70, 733 P.2d at 691-

92.    In other words, in 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




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at trial.6

             The introduction of the police interview video

infringed Beaudet-Close’s right to remain silent under the

Domingo test.     The jury was shown the portion of the video in

which Beaudet-Close refused to participate in the reenactment.

The jury was not told that Beaudet-Close’s refusal to reenact

the incident constituted an invocation of his right to remain

silent.   However, like in Domingo, it is likely that the jury

inferred from seeing this video that Beaudet-Close invoked this

right, because up until the moment Beaudet-Close declined to

cooperate with the reenactment, Beaudet-Close had answered all

of Detective Ah Mow’s questions.          Even if the jury did not infer

that Beaudet-Close officially invoked his right to remain

silent, the jury could have nevertheless made the inference,

based on Beaudet-Close’s refusal to cooperate with Detective Ah

Mow in this way, that Beaudet-Close was hiding something.



6     The Domingo court held that the introduction of evidence that a
defendant has invoked his right to remain silent infringes that right. 69
Haw. at 69, 733 P.2d at 691. However, the Domingo court proceeded to analyze
the introduction of that evidence under the HRE Rule 403 probative value
versus prejudicial effect balancing test. Id. at 70, 733 P.2d at 691-92.
The court stated that if the jury can infer that the defendant invoked his
constitutional rights, the likelihood that the jury will make an
impermissible inference therefrom far outweighs the probative value of the
evidence. Id. The Domingo court therefore held that the introduction of the
evidence was an abuse of discretion under HRE Rule 403. Id.
      It appears that after implying that the defendant’s constitutional
right was infringed, the Domingo court did not need to address the HRE Rule
403 test. However, either inquiry results in the same conclusion - that the
introduction of the subject evidence at trial necessitated vacating the
defendant’s conviction.

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Beaudet-Close’s right to remain silent was infringed because his

decision not to testify against himself by reenacting the

incident was used against him at trial.

                            IV.    CONCLUSION

          Beaudet-Close’s right to remain silent was infringed

when video footage of his invocation of that right was published

to the jury over his objection.       The jury likely inferred from

the video that Beaudet-Close invoked his right to remain silent

when he refused to participate in a reenactment of the incident

at the close of his interview.       Therefore, pursuant to the

standard we set forth in Domingo, Beaudet-Close’s invocation of

his right to remain silent was used against him at trial in

violation of article 1, section 10 of the Hawaii Constitution.

          We vacate the ICA’s July 9, 2019, Judgment on Appeal,

which affirmed the circuit court’s September 13, 2017, Judgment

of Conviction and Sentence and remand for a new trial.

Victor M. Cox                            /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Stephen L. Frye
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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