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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              18-JUN-2020
                                                              12:23 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                                ---o0o---


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

                                    vs.

                            MUSTAFA BAKER,
                   Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-XX-XXXXXXX; CR. NO. 13-1-0078)

                              JUNE 18, 2020

   McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
  CONCURRING AND DISSENTING, AND WITH NAKAYAMA, J., DISSENTING

                OPINION OF THE COURT BY POLLACK, J.

          In this case, we are called upon to determine whether

one of our most critical procedural safeguards, the

constitutional right against compelled self-incrimination, was

upheld.   The appeal involves the admission at trial of a

confession, given by the defendant during the course of a
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custodial interrogation.       Because we find that the tactics used

by the interrogating police officer were so coercive that they

rendered the defendant’s statement involuntary, we hold that it

should not have been admitted against him at trial.

           I.     BACKGROUND AND CIRCUIT COURT PROCEEDINGS

           Mustafa Baker was arrested on January 8, 2013, based

upon allegations that on December 31, 2012, he committed assault

in the first degree in violation of Hawai‘i Revised Statutes

(HRS) § 707-710.1     Baker was subsequently indicted in the Circuit

Court of the First Circuit (circuit court) on two counts of

sexual assault in the first degree in violation of HRS § 707-

730(1)(a)2 and one count of sexual assault in the third degree

pursuant to HRS § 707-732(1)(f).3

                  A. Motion to Determine Voluntariness

           The State filed a Motion to Determine Voluntariness of

Defendant’s Statement to Law Enforcement (motion to determine


     1
            HRS § 707-710 (1993) provides in relevant part as follows: “(1) A
person commits the offense of assault in the first degree if the person
intentionally or knowingly causes serious bodily injury to another person.”
     2
           HRS § 707-730 (Supp. 2009) provides in relevant part as follows:

           (1) A person commits the offense of sexual assault in the
           first degree if:

                  (a) The person knowingly subjects another person to
                  an act of sexual penetration by strong compulsion[.]
     3
            The circuit court dismissed the third degree sexual assault
charge on the morning of the first day of trial because the charging language
was deficient.




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voluntariness) in accordance with HRS § 621-26.4              In its motion,

the State argued that a statement Baker gave to Honolulu Police

Department (HPD) Detective (Det.) Brian Tokita during the course

of a custodial interrogation on January 8, 2013, was voluntarily

given and should be freely admissible at trial.              A hearing on

the motion was held at which Det. Tokita testified about the

circumstances of Baker’s custodial interrogation, which occurred

on the day Baker was arrested.5           Det. Tokita testified that

before commencing the interrogation he read a standardized form

to Baker that informed him of his constitutional rights.                Baker

said that he understood his rights, Det. Tokita stated, and then

signed the form indicating that he waived his rights.                Det.

Tokita testified that the HPD was in possession of an audio

recording and a written transcript of the interrogation, which

were introduced into evidence.           The court took the State’s

motion under advisement pending its review of the audio

recording and transcript.

               The audio recording of the interrogation discloses

that the interrogation proceeded as follows.              Det. Tokita began

the interrogation by asking Baker several introductory
      4
            HRS § 621-26 (1993) provides as follows: “No confession shall be
received in evidence unless it is first made to appear to the judge before
whom the case is being tried that the confession was in fact voluntarily
made.”
      5
               The Honorable Karen S. S. Ahn presided over the motion and trial
proceedings.




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questions, such as his date of birth, level of educational

attainment, age, and place of employment.          Baker stated that he

was 23 years old and was currently employed at a bakery, but he

had only completed the eighth grade.         Baker did not know his

home address, but he indicated that he was living in Waimanalo

and knew the name of the street on which he lived.

            Det. Tokita then informed Baker that he had “been

working on this case from the time it started,” that Baker

“clearly” did not “know what [Tokita] kn[e]w about this case,”

and that Baker should “trust [him]” when he tells Baker that he

“know[s] a lot about what happened.”         Det. Tokita informed Baker

that he knew Baker met the complaining witness (CW) on New

Year’s Eve in the Kailua District Park.          The detective next told

Baker “now here’s your chance, tell me what happen[ed] from

there in detail.”     Baker responded that he was drinking liquor

in the park with his sister KK6 and the CW, and GK arrived there

and “did something” with the CW.7         Baker explained that “[GK]

told [him] he had sex with her, that’s all.           That’s all I know

. . . I was not involved in this at all.”          This had occurred,

Baker said, when he went with his friends LKG and JKG to get


     6
            All minors referenced in this opinion are referred to by
abbreviation.
     7
            Throughout the trial and Baker’s interrogation, GK and KK were
frequently referred to as Baker’s siblings due to their close relationship,
but he is actually their cousin.



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cigarettes.   When he returned, “[GK]’s getting ready to fight

with this boy.    This boy was that girl’s boyfriend.”

          Det. Tokita interrupted and told Baker “Okay, no, I

know that’s not true. . . .      I know that didn’t happen.        Like I

said I’ve been investigating this case for a long time. . . .

And I know what happened. . . .          I’m just giving you a chance to

see if you going tell me what happened.”

Baker then admitted that he was trying to protect GK, and

explained that GK was bloody when he arrived back at the park.

Det. Tokita interrupted Baker again, stating “I know that’s . .

. not how it went.”     Baker responded that he would not have

sexually assaulted someone because he was “raped as a kid.”

          Det. Tokita expressed that Baker was a “straight up

guy” because, while Baker had a record as a juvenile, he did not

have a record as an adult.      Continuing with a friendly tone,

Det. Tokita stated, “I don’t know if you was doing any other

drugs, but I know you was drinking.         I know you was smoking

weed. . . .   Everyone gets blasted on New Year’s Eve and that’s

where I think everything went wrong because you just made an

error in judgment.”     Without pausing, Det. Tokita then accused

Baker and GK of beating the CW and further accused Baker of

“put[ting] [his] penis in her vagina, and [GK] did after [Baker]

and [Baker] came back and []did it again.”          Baker responded

“Woah” to this accusation.


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           Det. Tokita then offered another mitigating narrative

to Baker, saying “I don’t think you did it or meant to do it.

You were just not in the right frame of mind. . . .           That’s

where people go wrong, when they’re in the wrong frame of mind.

Then, Det. Tokita stated “Alcohol is . . . . where people get

themselves into trouble, cause they lose their inhibitions[.]”

The detective continued, “Women are a lot more promiscuous, you

know.   They flirt more, you know when they’re on alcohol . . .

cause they lose their inhibitions.”        After again discussing

Baker’s juvenile record, Det. Tokita assured Baker that,

compared to other offenders, he was not a “bad dude.”            “I know.

I just want to show that I not like that,” Baker replied.              “So

I’m giving you a chance now, Mustafa.        This is how you’re going

to be remembered,” the detective said.         Baker again denied

committing a crime, repeating his assertion that he was “not

like that.”   Returning to the mitigating narrative, Det. Tokita

stated “Everybody fucks up in life, okay. . . .          [O]ur brains

are programmed a certain way, you know. . . .          Guys are

programmed to procreate.”      “Yeah,” Baker responded.       Det. Tokita

continued, “Even movie stars right?        We all get busted.      This is

how our brains are wired.      You know what I mean?       Now you put

that brain on alcohol and drugs, now you’re all fucked up and

your thinking is all screwed up at that point.”          Before Baker




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could respond, Det. Tokita warned, “So I know what happened. . .

.   [H]ow [do] you want to be remembered, dude?”

            Continuing the interrogation, Det. Tokita changed

tactics again, warning Baker about what it “sounds like on the

outside.”    “The girl’s a minor,” Det. Tokita stated.          “She’s not

an adult. . . .     [I]f this hits the media, it would be . . .

twenty-three year old boy rapes a fucking juvenile and how does

that sound?”    Baker answered “That’s not me.” and Det. Tokita

replied, “Exactly.     Cause when people hear that, what they going

think that juvenile, [] how that juvenile is, you think?”              Baker

again said, “I’m not like that,” prompting Det. Tokita to tell

him, “I know you’re not like that.         I’m being straight with you

cause you haven’t had a record. . . .         You just drank too much,

dude.    You drank too much.     You smoked too much.       Bad error in

judgment.    But it’s time to come clean.”

            Det. Tokita then asked Baker, “When you go to court,

you think people want to hear somebody that’s going to fucking

deny, deny when the evidence is like insurmountable against

them, but they’re just going to deny, deny to the bitter end.”

“No,” Baker responded, and Det. Tokita continued, “they want to

hear somebody that’s you know what, . . . I made a mistake, . .

. that’s not me, but I made a fucking mistake, I did and I’m

sorry.    What do you think they want to hear?”         Baker said that




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people would want to hear the truth, and then Det. Tokita

warned, “I don’t want to be jerked around.”

            At this juncture Baker had not admitted to any

criminal activity, and the detective changed course.             Det.

Tokita told Baker, “we g[o]t physical evidence, so you cannot

deny that you didn’t have sex with her. . . .            We have physical

evidence and nobody can deny physical evidence.”

            Baker repeated his statement that he did not beat the

CW, which prompted Det. Tokita to respond, “Mustafa come on.

Now you’re jerking me around again.”          Baker again repeated that

he did not beat the CW.       Det. Tokita returned to the sexual

assault allegation, telling Baker, “Did she want to fuck?               No. .

. .   So why’d you fuck her then?”         Then, for the first time,

Baker admitted to having sex with the CW, explaining, “[c]ause I

was all fucked up.”       “You wasn’t thinking straight,” Det. Tokita

offered, to which Baker said, “We had four bottles of Jack

Daniels. . . .      I was smoking weed off the chain.         I was all

fucked up.”     After this Baker again denied beating the CW,

stating that GK beat her with a bottle.

            Det. Tokita then provided a sequence of events,

accusing Baker of having sex with the CW against her will three

times.    The detective stated that first Baker had vaginal sex

with the CW, then GK had vaginal sex with her, then Baker

returned and had anal sex and vaginal sex with the CW.              “That’s


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why I know there’s physical evidence that you guys cannot deny

because there’s DNA in there and you know that DNA’s one of [a]

kind,” Det. Tokita said.      After Baker replied “Yeah,” Det.

Tokita stated, “Exactly, so I know what happened already, cause

there’s physical evidence.”

           Baker again stated that he “did not beat her up.”

This prompted Det. Tokita to ask, “so you admit you fucked her,

penis in vagina?”    Baker said “Yes.”       Det. Tokita followed this

admission by trying to get Baker to adopt the detective’s

version of events.    Baker, resisting Det. Tokita’s narrative,

responded, “I only went twice.”          Det. Tokita again recited his

version of events to Baker, telling him “[R]emember you don’t

know what I know now?”     He then warned Baker, “you’re losing me

when you bullshit me.”     Baker repeated his statement that he

only had sex twice, to which Det. Tokita again pressed Baker to

accept the detective’s version of the events.          Baker then

appeared to adopt Det. Tokita’s version, replying, “Okay.”

           To clarify Baker’s possible admission, Det. Tokita

asked “You tell me, am I right or am I wrong?” to which Baker

answered, “I don’t know.”      Det. Tokita responded, “what [do] you

mean you don’t know?”     Baker explained that he had not had anal

sex with the CW because “she was laying on her back the whole

time.”   Det. Tokita again told Baker his version of the events

and warned, “I have the physical proof Mustafa.”           Det. Tokita


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then asked Baker whether he was “going to own up.”           Baker said

“Yes.   I ain’t going to argue with you no more.”          Det. Tokita

once again attempted to get Baker to confess to the version of

events that the detective had set forth.         Baker finally admitted

to Det. Tokita’s narrative.      Det. Tokita demanded to know why

Baker denied having sex with the CW in the manner that Det.

Tokita described up until that point, to which Baker responded,

“I was scared.”    Det. Tokita again warned Baker, “I told you

already, I know what happened. . . .         Once you stray from the

real story, I know already.”      Det. Tokita then reassured Baker

that he was not trying to manipulate him, he was simply seeking

“the straight answers.”     Det. Tokita asked Baker, “look Mustafa,

. . . have I steered you wrong?”         “No,” Baker responded.     “I’m

not playing games with you, right?         What I’m telling you is

straight up.    I’m being straight up with you,” the detective

continued.     Baker responded, “Right, right,” to this, and Det.

Tokita said, “And that’s what I want you to be with me.            You

know what I mean?     Fair is fair.”

           After this exchange, Baker told Det. Tokita, “I didn’t

beat her[,] all I did [was] grab[] her and thr[o]w her to the

ground.”   Det. Tokita rejected this, telling Baker, “I know [GK]

hit [the CW] with the bottle already, but I know the both of you

beat her.”     Baker once more denied beating the CW, which

prompted Det. Tokita to exclaim, “Dude.”         Baker attempted to


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explain further, saying, “I tried to sit her here, she tried to

get up.    So I pushed her, she fell right on her face again[.]”

Det. Tokita again rejected Baker’s response, stating, “[Baker]

the both of you beat her.       I know the both of you beat her.            I

know that for a fact, dude.”        Baker denied, for the thirteenth

time, beating the CW.

            Det. Tokita then presented Baker with an assault

narrative, explaining to him, “You told [GK], smash her head

with the bottle, bash her on the head, okay? . . .            I believe

you, okay, but you start beating her.”          Baker attempted to

explain that GK hit the CW in the face with the bottle, before

saying, “I don’t know why I did ‘um.”          He said that afterwards

he picked the CW up and helped her put her clothes back on.

Apparently accepting this statement, Det. Tokita told Baker,

“See that checks out . . . because you told me you have ADHD

. . . [s]o maybe you got a little bit of that, . . . .

[s]ometimes maybe you snap.”8       Baker agreed that he snaps, saying

“I do.    It’s . . . it’s normal.”        Continuing, Det. Tokita

stated, “when you on alcohol and you’re on drugs, chances of

that happening would be worse . . . you’re not yourself.”

Drawing connections between himself and Baker, Det. Tokita said,


      8
            In the preliminary stages of the interrogation, Baker informed
Det. Tokita that he took Ritalin for “ADHD” as a child, but that he stopped
taking it over ten years prior to the interrogation because his father did
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“I do some fucked up things when I drink, dude, let me tell you

that.”     He further attempted to draw parallels between Baker and

himself, saying, “I do some fucked up things when I drink and

that’s part of the reason why, fuck, I’m divorced, you know what

I mean?     Cause I did some fucked up things.”          “Me, too.”    Baker

responded.      Baker then offered that he was divorced as well.

             After this exchange, Baker once again denied beating

the CW.     This appeared to frustrate Det. Tokita, who responded,

“Dude, come on.       Now this is when I know you’re not being

straight with me.       You know what I mean and when I write my

report, that’s what it’s going to reflect.            That you weren’t

being straight with me about that.”           Baker asked, “What do you

want to hear, officer?        What question do you want to ask?”          “I

want to hear the truth from you,” Det. Tokita stated. “Why did

you hit her and why did you kick her like that?” Det. Tokita

questioned.      “I was scared” Baker responded, and then stated

that he didn’t want to remember, and that he was still scared.

Det. Tokita pressed Baker further, asking, “why did you beat her

up?”    Finally, Baker offered, “I was drinking.           It was in the

moment.     I was fucked off my ass.”

             Det. Tokita once more urged Baker to take

responsibility for directing the attack on the CW, telling him,

“[GK] didn’t want to fuck her either.           He was scared. . . .          But

you told him to [do] it.         Do you remember?”      Baker responded,


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“No.”   Det. Tokita appeared unwilling to drop the point,

stating, “Well that’s what happened[.]”         The detective tried

once more, asking Baker what he would say to GK if he was

present.   Baker responded, “GK had nothing to do with it until I

told him to.”   Det. Tokita responded “you told him to . . . hit

her over the head, right, with the bottle? . . .           To have sex

with her.”   Baker did not respond to this suggestion.           The

interview concluded with Baker affirming that he was not coerced

or forced to make his statement.

           Following the hearing, the circuit court issued a

minute order granting in part the State’s motion to determine

voluntariness and making several findings of fact and

conclusions of law.     The court found that Baker was administered

his Miranda rights, and that he subsequently waived them when

making his statement to the police.        The court further found

that, despite only completing the 8th grade, Baker displayed “no

signs of any inability to understand questions or to respond

appropriately to any given question.”

           Additionally, the circuit court found that Det. Tokita

engaged in “apparently deceptive assertions” and “urged [the]

defendant to tell the truth, sometimes using an insistent tone.”

The court found that these tactics implicated intrinsic facts

and were not deliberate falsehoods extrinsic to the facts of the

case and that Baker was able to deny certain allegations when he


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wanted to.    Considering the totality of the circumstances, the

court concluded that “the State ha[d] proven by a preponderance

of the evidence that [the] defendant gave the bulk of his

January 8, 2013, statement voluntarily, knowingly, and

intelligently.”     The court denied the State’s motion in part,

finding that the State had failed to prove that Baker’s

statement was voluntary as to the final portion of the interview

in which “the detective sought to get the defendant to admit

that he directed [GK] to hit and assault the complaining

witness.”

                               B. The Trial

            At trial, the State called Det. Tokita to testify

about his investigation and interrogation of Baker.            A redacted

version of the audio recording of the interrogation was played

for the jury.9    Regarding the interrogation, Det. Tokita

testified that he told Baker during the interrogation that he

had DNA evidence.     When asked “was that an accurate statement,”

Det. Tokita said, “Not at that time, no.”          Det. Tokita


     9
            Prior to trial, the State produced a redacted transcript of the
interrogation that it sought to have admitted. The State had redacted
Baker’s statement, “I’ve been raped as a kid,” contending that its inclusion
would be unduly prejudicial pursuant to Hawai‘i Rules of Evidence (HRE) Rule
403. The circuit court admitted the redacted transcript over defense
objection, reasoning that the statement should be redacted because it was too
vague and could affect the jury’s decision by arousing sympathy for Baker or,
conversely, causing the jury to assume that Baker would be more likely to
commit sexual assault as a victim of sexual assault. The redacted transcript
of the audio recording was provided to the jury while the recording was
played for the jury.



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acknowledged that he lied to Baker during the interrogation to

“try[] to get the truth out of him.”

             LKG testified that she and her brother, JKG, were at

the park on the afternoon of New Year’s Eve where she saw Baker,

GK, and the CW drinking and having fun.            The CW smoked

marijuana, LKG testified, and kissed Baker while sitting on his

lap.    LKG said she did not see Baker and the CW have sex.              After

the CW kissed Baker, LKG and JKG went to a different part of the

park for approximately 30 minutes, LKG explained.              LKG said that

when they returned to the area where Baker, GK, and the CW had

been, LKG found the CW sitting outside the bathroom by herself,

covered in blood.

             JKG also testified, stating that he did not see anyone

doing drugs, but he did see other people drinking alcohol.                JKG

further testified that he did not see the CW talk to, kiss, or

have sex with Baker.

             The CW then gave her account of what transpired.             She

was with Baker and his cousin KK at the park, the CW explained,

and they were all drinking and smoking marijuana.              The CW denied

ever flirting with, kissing, or asking Baker for sex.               The CW

testified that she fled into a bathroom after police officers

approached the trio in the park.            Baker came into the bathroom

and propositioned her, the CW elaborated.            The CW stated that

she repeatedly told Baker no, but when she started to leave,


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Baker and GK, who had entered the bathroom, began punching,

hitting, and kicking her.       Someone hit her with a bottle,

causing her to lose consciousness, the CW explained.            The CW

testified that, when she awoke, Baker had his penis in her

vagina.    GK then had vaginal sex with her to completion, after

which Baker put his penis in her anus and then her vagina, the

CW stated.    The CW testified that she never consented to sex

with either Baker or GK.       When asked to describe her injuries,

the CW explained that she was “bleeding from head to toe,” had

cuts on her face, a black eye, cuts on her eyelid and lips, and

damage to her jaw that required surgery.

             KK testified that she was with the CW on New Year’s

Eve, when the two of them went to Kailua “to go find drugs” and

“people to go party with[.]”        She said that, before meeting up

with Baker, they got acid, methamphetamine, marijuana, and

alcohol.     The CW and KK consumed “[t]he acid, the

methamphetamine, the alcohol, [and] the marijuana” together, KK

testified.     KK did not see the CW kiss Baker or sit on his lap,

but she did see them sit next to each other and “being pleasant

with each other.”10

             The State also called Officer David Esaki, a

criminalist with the HPD, who had analyzed DNA evidence


     10
            KK indicated that at the time she “couldn’t see anything clearly”
and “couldn’t comprehend what was going on” due to the acid.



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collected from the CW’s breast, mouth, vagina, and anus.            Baker

was conclusively ruled out as a contributor of the DNA from the

CW’s vagina and the results were inconclusive as to the rectal,

chest, and mouth DNA, Officer Esaki testified.

          Doctor (Dr.) Wayne Lee, a licensed physician and

surgeon working at the Sex Abuse Treatment Center, testified on

behalf of the State as an expert in the examination and

treatment of sexual abuse patients.        Dr. Lee examined the CW on

January 1, 2013, wherein he collected the DNA swabs and

conducted a pelvic and anal examination.         The CW had redness,

swelling, and multiple shallow lacerations on her external

genitalia, and multiple acute, tender anal fissures all

consistent with trauma.

          GK, who was called as a witness for the defense,

explained that he was at the park that afternoon with his

brother Baker, LKG, and JKG.      He testified that, along with

drinking with everyone present, he “did acid with [the CW].”

The CW and Baker were kissing, GK explained, before the two went

to the bathroom to have sex.      GK testified that he did not hear

any yells, screams, or the sound of someone being hit while

Baker and the CW were in the bathroom.         GK then propositioned

the CW, who refused to have sex with him.         When the CW refused

to have sex with him, he hit her with a bottle, started beating

her, and then had sex with her, GK testified.          Baker did not hit


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or beat the CW at all, GK testified, nor did he force himself on

the CW.   GK explained that he put his penis in the CW’s anus and

that Baker was not present.

          GK also testified that in January of 2013 he gave a

statement to Det. Tokita in which he said that it was Baker who

told him to hit the CW with a bottle and beat and kick the CW.

At trial, GK admitted that his statements to Det. Tokita were

lies, which he told because he was scared and “thought that by

doing that, [he] would get in less trouble.”          Further, because

Baker had already had consensual sex with the CW, GK testified,

he thought he could blame it on Baker.

          The jury found Baker guilty as charged on both counts.

In determining Baker’s sentence, the circuit court noted that

Baker had no record, was young, and had a family to support.

Among other reasons cited by the court, it stated that it was

greatly concerned by the fact that Baker did not appear to have

told the truth during his interrogation and that Baker had

“taken no responsibility at any time[.]”         Considering these

factors and others, the circuit court sentenced Baker to a

twenty-year term of imprisonment in each count to be served

consecutively.

          Baker appealed from the Judgment of Conviction and

Sentence (circuit court judgment) to the Intermediate Court of

Appeals (ICA).    On appeal, he contended that the circuit court


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erred in finding that his statement to the police was voluntary

and admissible.     Baker also contended that his constitutional

right to present a defense was violated and that the imposition

of a consecutive sentence was an abuse of discretion and

violation of his constitutional rights.

                           II. ICA PROCEEDINGS

            In its opinion affirming the circuit court judgment,11

the ICA first addressed the voluntariness of Baker’s statements

to Det. Tokita.

            The ICA evaluated Det. Tokita’s tactics during the

interrogation and concluded that they were not improperly

coercive.    Det. Tokita, the ICA explained, “refused to accept

Baker’s ‘initial version[s] of events’” and “persistently urged

Baker to ‘come clean’ and ‘own up.’”         (Alteration in original.)

This conduct was permissible, the ICA held, because the

detective “never made any threats or promises to Baker.”             The

ICA was also not convinced that Det. Tokita “raised the threat

of media publicity” during the interrogation because he “never

threatened to publicize the details of the assault if Baker did

not tell a particular story.”        Because Det. Tokita merely

advised Baker that it would be better for him to tell the truth




      11
            The ICA’s opinion can be found at State v. Baker, 142 Hawai‘i 466,
421 P.3d 674 (App. 2017).



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rather than threatening Baker, the detective’s conduct did not

render Baker’s statement involuntary, the ICA concluded.

           The ICA also found that Det. Tokita repeatedly told

Baker that he had physical evidence when no such evidence

existed.   These misrepresentations “were falsehoods intrinsic to

the facts of the alleged offense,” the ICA held, and therefore

were not coercive per se.       The ICA accordingly analyzed the

totality of the circumstances surrounding Baker’s interrogation

in determining the voluntariness of his confession.            The ICA

concluded that Baker’s confession was not involuntary because

“Detective Tokita’s questioning was not of a type that would

reasonably induce a false confession.”12

           The ICA accordingly affirmed the circuit court’s

judgment.13   Baker timely filed an application for writ of

certiorari, which this court accepted.

                        III. STANDARDS OF REVIEW

           We have “applied a ‘clearly erroneous’ standard of

review to the [findings of fact] made by the court in connection


     12
            The ICA also considered whether Baker’s mental and physical
condition rendered his statement involuntary and concluded that it did not.
     13
            Additionally, the ICA concluded that the circuit court did not
abuse its discretion in redacting Baker’s statement, “I’ve been raped as a
kid,” because the statement could have caused the jury to make an
emotionally-based decision and because Baker was able to present a complete
defense. The ICA further held that Baker’s consecutive sentence was properly
imposed under HRS § 706-606, was not cruel and unusual, and did not violate
Baker’s constitutional rights under Apprendi v. New Jersey, 530 U.S. 466
(2000).



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with a voluntariness hearing” to determine whether to admit a

confession into evidence at trial.        State v. Hoey, 77 Hawai‘i 17,

32, 881 P.2d 504, 519 (1994).       This is based on the rationale

that “[w]hether the defendant invoked his right to counsel and

whether he waived the right are primarily questions of fact.”

Id. (alteration in original) (quoting State v. Villeza, 72 Haw.

327, 330-31, 817 P.2d 1054, 1056 (1991)).

            This court has also recognized that “in a . . .

technical sense, waiver is a question that requires application

of constitutional principles to the facts as found.”           Villeza,

72 Haw. at 331, 817 P.2d at 1056 (internal quotation marks

omitted).   Accomplishing this task “requires us to examine the

entire record and make an independent determination of the

ultimate issue of voluntariness based upon that review and the

totality of circumstances surrounding [the defendant’s]

statement.”   State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58,

69 (1993) (alteration in original) (internal quotation marks

omitted).   Thus, we apply a de novo standard of appellate review

to “the ultimate issue [of the] voluntariness” of a confession.

Hoey, 77 Hawai‘i at 32, 881 P.2d at 519 (alteration in original).

                             IV. DISCUSSION

       A. Voluntariness of Confession – General Principles

            Under the Fifth Amendment to the United States

Constitution and article I, section 10 of the Hawai‘i


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Constitution, “no person shall be compelled in any criminal case

to be a witness against himself or herself.”          State v.

Kelekolio, 74 Haw. 479, 501, 849 P.2d 58, 69 (1993) (internal

quotation marks and alterations omitted).         Accordingly, “[t]he

constitutional right against self-incrimination prevents the

prosecution’s use of a defendant’s extrajudicial admissions of

guilt where such admissions are the product of coercion.”              State

v. Matsumoto, 145 Hawai‘i 313, 324, 452 P.3d 310, 321 (2019)

(quoting Kelekolio, 74 Haw. at 502, 849 P.2d at 69).             The

reasons for barring coerced confessions include “the inherent

untrustworthiness of involuntary confessions, a desire that

criminal proceedings be accusatorial rather than

inquisitorial[,] and a desire that the police not become law

breakers in the process of achieving society’s valid law

enforcement objectives.”      Id. (alteration in original).

          In order for a statement to be voluntarily given, the

decision to give the statement must have been a free and

unconstrained choice.     See State v. Yong Shik Won, 137 Hawai‘i

330, 340, 372 P.3d 1065, 1075 (2015) (“Voluntariness means a

‘free and unconstrained choice.’” (quoting State v. Shon, 47

Haw. 158, 166, 385 P.2d 830, 836 (1963))).         A decision to give a

statement is free and unconstrained if it is not coerced.              Id.

at 341, 372 P.3d at 1076.      Generally, determining whether a

defendant’s confession during a custodial interrogation was


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coerced requires case-by-case consideration of the totality of

the circumstances surrounding the defendant’s statement.

Kelekolio, 74 Haw. at 502, 849 P.2d at 69 (citing, inter alia,

Frazier v. Cupp, 394 U.S. 731, 739 (1969)).          Crucially, a court

must not analyze the individual circumstances in isolation, but

must weigh those circumstances in their totality.           Wilson v.

Lawrence Cty., 260 F.3d 946, 953 (8th Cir. 2001) (“[A] totality

of the circumstances analysis does not permit state officials to

cherry-pick cases that address individual potentially coercive

tactics, isolated one from the other, in order to insulate

themselves when they have combined all of those tactics in an

effort to overbear an accused’s will.”).

          Under certain circumstances, however, we have held

that the need for a “totality of circumstances” analysis is

obviated by the inherently coercive nature of the improper

interrogation techniques that were used in a custodial setting.

Kelekolio, 74 Haw. at 511, 849 P.2d at 73.         Specifically, this

court has held that when the police employ a falsehood that is

extrinsic to the facts of the alleged offense and is of a type

reasonably likely to procure an untrue statement or to influence

an accused to make a confession regardless of guilt, any

subsequent statement by the accused is automatically considered

involuntary.   Id.   Thus, Hawai‘i courts evaluate “the legitimacy

of the use of ‘deception’ by the police in eliciting confessions


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or inculpatory statements from suspects and arrestees”

differently depending on whether the deception involved

information intrinsic to the alleged offense or extrinsic to the

alleged offense.    Id.

          Intrinsic falsehoods include, for example, a statement

that a murder victim is still alive, a claim that articles of

clothing were found at a crime scene, or an assertion that

cameras were recording the area of the crime.          Matsumoto, 145

Hawai‘i at 324, 452 P.3d at 321.         Although intrinsic factual

deception is not considered so coercive as to automatically

render the accused’s statement involuntary, it may still be

unduly coercive and its presence is a relevant circumstance that

should be considered as part of the “totality of circumstances.”

Kelekolio, 74 Haw. at 513, 849 P.2d at 74 (finding that

confessions procured through intrinsic factual deception are

subject to a “totality of circumstances” analysis).           In

Kelekolio, this court found that if the police obtain a

confession through the use of intrinsic factual deception that

is of a type reasonably likely to procure an untrue statement,

then the statement will be determined to be involuntary.            See

id. (holding that the misrepresentations used by detectives

“were not of a type that would reasonably induce a false

confession” and therefore did not render the defendant’s

inculpatory statements involuntary).


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             As stated, extrinsic falsehoods are falsehoods that

incorporate considerations beyond the immediate facts of the

alleged offense.       Examples include assurances of divine

salvation in the event of a confession, promises of mental

health treatment instead of imprisonment, and misrepresentations

of legal principles or the results of a polygraph test.               Id. at

512, 849 P.2d at 73; Matsumoto, 145 Hawai‘i at 327, 452 P.3d at

324.    Like intrinsic falsehoods, extrinsic falsehoods are

evaluated based on whether they are “reasonably likely to

procure an untrue statement or to influence an accused to make a

confession regardless of guilt.”            Kelekolio, 74 Haw. at 512, 849

P.2d at 73.      If the police officer’s conduct meets the extrinsic

falsehood test, it will be regarded as coercive per se, and the

statement of the accused is automatically considered

involuntary.      Id. at 511, 849 P.2d at 73.

             In cases when the police’s use of extrinsic deception

does not obviate the need for the inquiry, the totality of the

circumstances surrounding an accused’s statement to the police

must be examined in order to determine whether the statement was

the product of coercion or otherwise involuntary.              Id. at 502,

849 P.2d at 69.       Of the various circumstances that bear on

voluntariness, the use of coercive interrogation tactics by the

police is the most salient in determining whether the confession

was the product of coercion.         See id. at 503, 849 P.2d at 70 (“A


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confession may be rendered involuntary by ‘impermissible police

conduct.’” (quoting State v. Amaya-Ruiz, 800 P.2d 1260, 1272

(Ariz. 1990)).

          In Kelekolio, this court directly addressed the

coercive effect of the interrogating officer’s use of deception.

Kelekolio, 74 Haw. at 505-13, 849 P.2d at 71-74.           As discussed,

we crafted a rule holding that deliberate intrinsic falsehoods

would be evaluated under the totality of the circumstances,

while deliberate extrinsic falsehoods that are of a type

reasonably likely to procure an untrue statement or to influence

an accused to make a confession regardless of guilt would be

considered coercive per se.      Id. at 511, 849 P.2d at 73.        While

our rule specifically addressed falsehoods, our purpose was

broader: to curtail the improper use of manipulative and

deceptive tactics during custodial interrogations.           See id. (“In

our view, the relevant case law and scholarly authority . . . is

amenable to the formulation of a rule by which to measure the

legitimacy of the use of ‘deception’ by the police in eliciting

confessions or inculpatory statements from suspects and

arrestees.”).

          Deception can be “[t]he act of deliberately causing

someone to believe that something is true when the actor knows

it to be false.”    Deception, Black’s Law Dictionary 510 (11th

ed. 2019).   But deception can also be “[a] trick intended to


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make a person believe something untrue.”         Id.    This court has

never held that improperly coercive interrogation techniques

must involve a deliberate misrepresentation to the accused.

Indeed, in Kelekolio, we held that assurances of divine

salvation upon confession are so manipulative and prone to

producing coerced confessions that they are coercive per se--but

we did not require that the assurances be shown to be a

falsehood.   74 Haw. at 512, 848 P.2d at 73.           For example, if the

police induce a confession by promising that the accused will be

released on bail if the defendant admits to the underlying

conduct, such a promise would be impermissibly coercive even if

the accused was released on bail after making the confession.

          As such, we clarify that the relevant inquiry in

determining whether deceptive interrogation tactics are

improperly coercive is whether the deception is reasonably

likely to procure an untrue statement or influence an accused to

make an involuntary confession.       Our law requires us to examine

the entire record and make an independent determination of the

voluntariness of Baker’s custodial statement to the police.

Kelekolio, 74 Haw. at 502, 849 P.2d at 69 (quoting State v.

Villeza, 72 Haw. 327, 330-31, 817 P.2d 1054, 1056 (1991)).

Accordingly, we examine Det. Tokita’s conduct during the




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interview to determine whether deceptive interrogation tactics

were used.14

 1. Baker’s Confession Was Involuntary Under the Totality of the
                           Circumstances.

              a. Detective Tokita’s Interrogation Tactics

           During the interrogation, Det. Tokita suggested what

the public perception of Baker’s conduct would be and the manner

in which the media would report on his offenses.            Specifically,

Det. Tokita asked Baker, “if this hits the media, it would be

. . . twenty-three year old boy rapes a fucking juvenile and how

does that sound?”     “That’s not me.” Baker said in response, and

Det. Tokita replied, “Cause when people hear that, what they

going think that juvenile, [] how that juvenile is, you think?”

Baker replied, “I’m not like that.”

           Comments during a custodial interrogation about how

the public will perceive the conduct of the accused and what the

media coverage will be like “if it hits” the news communicate to

the accused that confessing may result in a better public

perception.    Additionally, such comments convey that the alleged

crime may receive less news coverage if the defendant confesses

     14
            Even though Baker contends that the entirety of his confession
was not voluntarily made, Justice Nakayama’s dissent notes that this opinion
reviews the coerciveness of certain statements made during the interrogation
that Baker did not specifically challenge. Nakayama, J., Dissenting
(Dissent) at 33-34. However, it is well settled that an appellate court is
required to review the entire record and make an independent determination of
the voluntariness of a custodial statement. Kelekolio, 74 Haw. at 502, 849
P.2d at 69.




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because it may not “hit the media.”         Conversely, the parallel

implication is that not confessing may result in a more negative

portrayal of the accused in media coverage and that the extent

of the coverage may be greater.15

           Effectively, Det. Tokita’s question was an implied

promise that Baker would receive a benefit if he chose to

confess and consequences if he did not.          See State v.

Rettenberger, 984 P.2d 1009, 1018 (Utah 1999) (“Promises of

leniency necessarily imply the threat of harsher punishment.”).

A promise, even when merely implied, of more favorable treatment

in the event a confession is made is an interrogation tactic

that is reasonably likely to elicit an untrue statement or to

influence an accused to make an involuntary confession.

Kelekolio, 74 Haw. at 511-12, 849 P.2d at 73 (noting that

promises of more favorable treatment in the event of a

confession are reasonably likely to procure an untrue statement

or to influence an accused to make a confession regardless of

guilt); see also Brady v. United States, 397 U.S. 742, 753

(1970) (“To be admissible, a confession must be free and

voluntary: that is, [it] must not be . . . obtained by any
     15
            The ICA concluded that Det. Tokita’s comments about public
perception were not coercive because Det. Tokita did not explicitly threaten
to personally publicize the details of Baker’s case. The dissent reaches a
similar conclusion. Dissent at 31. However, conveying to a defendant that
confessing may result in a better public perception of the defendant in the
media does not depend on the interrogating officer personally publicizing the
details, nor does it affect the implication that refusing to confess will
result in a negative portrayal.



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direct or implied promises, however slight[.]” (internal

quotation marks omitted) (emphasis added)).           As such, this

tactic of implying more favorable treatment if a confession is

given is an improperly coercive interrogation technique, and its

use by Det. Tokita during the interrogation weighs toward

Baker’s subsequent statement being involuntary.

           The coercive nature of Det. Tokita’s question about

public perception was compounded by his subsequent question

about how Baker’s unwillingness to confess would be perceived in

court.    Immediately after commenting on public perception, Det.

Tokita asked Baker, “when you go to court, you think people want

to hear somebody that’s going to fucking deny, deny when the

evidence is like insurmountable against them, but they’re just

going to deny, deny to the bitter end.”          Det. Tokita implied

that if Baker continued to deny his guilt in the face of the

contrary evidence the jury would hold it against him.             The clear

implication was that, if Baker confessed, the jury would not be

as harsh because “they want to hear somebody that’s you know

what . . . I made a mistake, . . . that’s not me, but I made a

fucking mistake, I did and I’m sorry.”16         Police statements of

     16
            The dissent appears to acknowledge the implication of Det.
Tokita’s comments about public perception and how a confession would be
perceived in court but characterizes the comments as mere advice that it
would be better for Baker to tell the truth. Dissent at 31 (citing
Kelekolio, 74 Haw. at 505, 849 P.2d at 70) (“Detective Tokita’s line of
questioning suggested to Baker that he would be able to salvage his
reputation and improve his chances in court[.]”). Asserting that a jury
                                                             (continued . . .)


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this nature imply to the accused that, by confessing, the

accused will be better off because the jury will treat a

repentant defendant with less severity than an unrepentant one.

Through his implicit threats about how the jury would react to a

defendant that continued to deny guilt, Det. Tokita effectively

communicated to Baker that a confession would result in more

favorable treatment.      This tactic is of a type that is

reasonably likely to procure an untrue statement or to influence

an accused to make an involuntary confession.           Kelekolio, 74

Haw. at 511-12, 849 P.2d at 73.        Thus, Det. Tokita’s use of this

coercive tactic weighs in favor of Baker’s confession not being

voluntary.

            Additionally, throughout the course of the

interrogation, Det. Tokita described Baker’s conduct in ways

that minimized the egregiousness of the alleged crimes.             Early

in the interrogation, Det. Tokita stated, “I don’t know if you

was doing any other drugs, but I know you was drinking.             I know

you was smoking weed. . . .       Everyone gets blasted on New Year’s

Eve and that’s where I think everything went wrong because you

just made an error in judgment.”          Det. Tokita followed up on

(. . . continued)

“want[s] to hear” a defendant confess to the charged crime is not mere advice
to tell the truth; it is an assertion that the defendant will benefit from
confessing. See Kelekolio, 74 Haw. at 505, 849 P.2d at 70 (“[M]ere advice
from the police that it would be better for the accused to tell the truth
when unaccompanied by either a threat or promise does not render a subsequent
confession involuntary.” (emphasis added)).



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this statement by saying that “Alcohol is . . . where people get

themselves into trouble, cause they lose their inhibitions[.]”

Shortly after, the detective told Baker, “I don’t think you did

it or meant to do it.     You were just not in the right frame of

mind. . . .   That’s where people go wrong, when they’re in the

wrong frame of mind.”     Then, Det. Tokita used gender stereotypes

to normalize the alleged conduct by saying that “Women are a lot

more promiscuous, you know.      They flirt more, you know when

they’re on alcohol . . . cause they lose their inhibitions” and,

shortly after, “Guys are programmed to procreate.”           After Det.

Tokita told Baker that it was futile to continue denying that he

had sex with the CW because there was physical evidence, Baker

adopted Det. Tokita’s minimized version of events and admitted

that he had sex with the CW because he “was all fucked up.”

Then, after Baker admitted to having sex with the CW, Det.

Tokita reinforced the narrative by stating, “when you on alcohol

and you’re on drugs, chances of that happening would be worse

. . . you’re not yourself.”      Finally, after Det. Tokita had

repeatedly pushed Baker to admit to beating the CW and explain

why he had done so, Baker relied on the minimized narrative

again, stating, “I was drinking.         It was in the moment.     I was

fucked off my ass.”

          When an interrogating officer suggests that the

commission of the crime was understandable, justifiable, or


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otherwise excusable, it implies to the accused that if a

confession is given and the officer’s version of events is

adopted, the crime will be viewed less seriously and punishment

will be more lenient.      Commonwealth v. DiGiambattista, 813

N.E.2d 516, 527 (Mass. 2004) (citing F.E. Inbau et al., Criminal

Interrogation and Confessions 419-22 (4th ed. 2004)).             Often

referred to as “minimization,” the technique makes an implied

promise that if the suspect adopts this minimized version of

events, the crimes will be seen as less egregious.

Rettenberger, 984 P.2d at 1018 (“[T]he interrogator communicates

that the suspect will receive a reduced level of punishment

. . . if he admits to a description of the offense the

interrogator finds acceptable.” (second alteration in original)

(quoting Richard J. Ofshe & Richard A. Leo, The Decision to

Confess Falsely: Rational Choice and Irrational Action, 74 Denv.

U.L. Rev. 979, 999 (1997) [hereinafter The Decision to Confess

Falsely]); see also Dassey v. Dittmann, 877 F.3d 297, 335 (7th

Cir. 2017) (en banc) (Rovner, J., dissenting) (“Although a court

must exclude a confession obtained by direct promise of

leniency, the research demonstrates that minimization techniques

are the functional equivalent in their impact on suspects.”

(citation omitted)).17


     17
            In response to the many authorities cited above, the dissent
asserts that we are relying solely on DiGiambattista and Rettenberger to
                                                             (continued . . .)


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            In DiGiambattista, the Supreme Court of Massachusetts

observed that the officers repeatedly portrayed the defendant’s

commission of arson as excusable because he was stressed, under

the influence of alcohol, and had not intended to harm anyone.

813 N.E.2d at 526.      The court found that the use of these

minimization techniques alone would not render a confession

involuntary, but the combination of false statements about

irrefutable evidence and minimization techniques, as well as

references to “counseling,” rendered the defendant’s statement

involuntary.      Id. at 528.

            Similarly, in Rettenberger, the Supreme Court of Utah

found that the use of minimization techniques during a custodial

interrogation “strongly weighs against the conclusion that the

confession was voluntary.”       984 P.2d at 1018.      There, the

interrogating officers made several references to the defendant

being charged with capital murder, but they suggested that the

crime could be recast as a less serious offense if he were to

confess.    Id.     The court observed that numerous times during the



(. . . continued)

conclude that the minimization technique implies to the accused that adopting
the minimized narrative will result in favorable treatment. Dissent at 34.
The dissent proceeds to reject the notion that the minimization technique can
make an implied promise. Dissent at 34. The implied promise that the
minimization technique makes, however, is well documented and has been the
subject of scholarly research for decades. See, e.g., Saul M. Kassin et al.,
Police Interrogations and Confessions: Communicating Promises and Threats by
Pragmatic Implication, 15 L. & Hum. Behav. 233, 234-35 (1991); The Decision
to Confess Falsely, supra, at 999; F.E. Inbau et al., supra, at 419-22.



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interrogation, the officers suggested that the killing was

unintentional and that the “officers could ‘explain to the judge

that this thing wasn’t premeditated[.]’”            Id.   Similar to the

court in DiGiambattista, the Rettenberger court found that

minimization techniques alone may not be enough to render a

confession involuntary but that at a minimum they are strong

evidence that the defendant’s confession was coerced.               Id.

             Here, Det. Tokita likewise repeatedly attempted to

portray the commission of the alleged offense as understandable

because of the drugs and alcohol that Baker and the CW had

consumed and because of stereotypes associated with his gender

and the gender of the CW.         In doing so, Det. Tokita implicitly

promised Baker that he would receive more favorable treatment if

he adopted Det. Tokita’s version of events and confessed.                 This

tactic was reasonably likely to influence Baker to make an

involuntary confession, particularly when combined with other

coercive interrogation tactics.          DiGiambattista, 813 N.E.2d at

528.    Therefore, Det. Tokita’s use of this tactic weighs in

favor of Baker’s confession being involuntary.

             Moreover, Det. Tokita’s use of gender stereotypes was

improper not only because it implicitly promised Baker leniency

in exchange for a confession, it was also manifestly

inappropriate gender-based discrimination.            By intimating that

women are “more promiscuous . . . . when they’re on alcohol


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. . . cause they lose their inhibitions” and that “Guys are

programmed to procreate,” Det. Tokita appealed to improper

prejudices about how men and women behave.          It is a fundamental

duty of this court to call attention to those interrogation

techniques that are “so offensive to a civilized system of

justice that they must be condemned under principles of due

process.”    Kelekolio, 74 Haw. at 513-14, 849 P.2d at 74

(internal quotations omitted) (quoting Crane v. Kentucky, 476

U.S. 683, 687 (1986)).      Gender discrimination is expressly

prohibited by our constitution and precedent of the United

States Supreme Court.      State v. Levinson, 71 Haw. 492, 499, 795

P.2d 845, 849-50 (1990) (concluding that a defendant’s use of

peremptory challenges in a criminal case to discriminate against

potential jurors on the basis of gender was prohibited by

article I, section 5 of the Hawai‘i Constitution); Weinberger v.

Wiesenfeld, 420 U.S. 636, 637-39 (1975) (holding that the Social

Security Act’s disparate treatment of men and women on the basis

of economic stereotypes violated due process).           Interrogation

techniques that run afoul of our state’s prohibitions on

discrimination are so offensive that they must not be

countenanced under principles of due process.18           See Kelekolio,

74 Haw. at 513-14, 849 P.2d at 74.

     18
            The dissent agrees that Det. Tokita’s statements were
discriminatory on the basis of gender, but concludes that it was appropriate
                                                             (continued . . .)


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            Additionally, we have not hesitated to exclude

statements or evidence from being used at trial when necessary

to preserve the integrity of the judicial process.            State v.

Bowe, 77 Hawai‘i 51, 59, 881 P.2d 538, 546 (1994) (holding that

even in a situation when an accused is coerced into making a

confession by a private individual, the state participates in

that violation by allowing the coerced statements to be used as

evidence); State v. Torres, 125 Hawai‘i 382, 394, 262 P.3d 1006,

1018 (2011) (“[C]ourts should not place their imprimatur on

evidence that was illegally obtained by allowing it to be

admitted into evidence in a criminal prosecution.”).            Indeed,

this court has resolutely condemned appeals to discriminatory

prejudice used in various contexts.         See, e.g., State v. Pitts,

146 Hawai‘i 120, 137-38, 456 P.3d 484, 501-02 (2019) (stating

that a court’s inherent authority to administer justice would

permit intervention if a peremptory challenge appeared to

discriminate on a prohibited basis); State v. Rogan, 91 Hawai‘i

405, 414, 984 P.2d 1231, 1240 (1999) (stating that appeals to

prejudice “threaten[] our multicultural society and

(. . . continued)

for Det. Tokita to make these statements because he was “attempt[ing] to put
Baker at ease.” Dissent at 37. We do not consider Det. Tokita’s purpose in
making these statements to be relevant. It is deeply troubling that the
dissent endorses the use of discriminatory rhetoric in custodial
interrogations to put a suspect “at ease” in order to induce a confession.
If adopted, the dissent’s view would result in the tacit, indeed express,
approval of discriminatory comments based on gender by a state actor during
custodial interrogations, a position that we do not ascribe to.



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constitutional values”); State v. David, 141 Hawai‘i 315, 327,

409 P.3d 719, 731 (2017) (holding that the circuit court erred

by failing to repudiate a prosecutor’s improper appeal to race

at sentencing).

           In the context of discriminatory interrogation

tactics, the appropriate action may be exclusion of a confession

obtained by the use of such tactics.         Matsumoto, 145 Hawai‘i at

324, 452 P.3d at 321 (“The reasons for barring coerced

admissions include . . . a desire that the police not become law

breakers in the process of achieving society’s valid law

enforcement objectives.” (internal quotation marks omitted)).

Thus, in an effort to deter police interrogators from making

discriminatory statements and to protect the integrity of the

judicial system, we now hold that interrogation techniques that

rely on stereotyping protected classes of persons are inherently

coercive, and strongly weigh against any subsequent statement

being voluntary.19     Here, Det. Tokita’s use of discriminatory


     19
            Although we hold that a police interrogator’s use of a technique
involving a discriminatory narrative is one factor to be examined under the
totality of the circumstances, in extreme cases the discriminatory tactic may
be so odious as to render any subsequent statement involuntary and
inadmissible. Cf. Rogan, 91 Hawai‘i at 411, 984 P.2d at 1237. Additionally,
we clarify that our holding today applies without regard to the source of the
legal protection from discrimination. Compare Haw. Const. art. I, § 5
(proscribing discrimination on the basis of race, religion, sex, or ancestry)
with HRS § 378-2(a)(1) (Supp. 2019) (prohibiting employers from
discriminating on the basis of race, sex including gender identity or
expression, sexual orientation, age, religion, color, ancestry, disability,
marital status, arrest and court record, reproductive health decision, or
domestic or sexual violence victim status). Contrary to the dissent’s
                                                             (continued . . .)


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interrogation tactics strongly weighs toward finding Baker’s

statement involuntary.20

            Det. Tokita also sought to demonstrate his

trustworthiness by assuring Baker that he was not trying to

deceive him.    Early in the interrogation he told Baker, “I’m

being straight with you cause you haven’t had a record.”

Shortly thereafter, Det. Tokita assured Baker that he was not

trying to manipulate Baker and was not “playing games.”             He told

Baker that he was “being straight up” and that, reciprocally,

Baker should be honest with him because “[f]air is fair.”              Soon

after saying this, Det. Tokita drew connections between himself

and Baker by stating that, like Baker, he does “some fucked up

things when I drink, dude, let me tell you that.”            This

statement was followed by Det. Tokita saying, “I do some fucked

up things when I drink and that’s part of the reason why, fuck,




(. . . continued)

assertions, we are not “polic[ing] the language” used by interrogating
officers or “sanitizing” interrogations. Dissent at 36-37. We are simply
refusing to place our imprimatur on the employment of discriminatory language
during police interrogation and hold that its use, while weighing strongly
against a finding of voluntariness, should be examined under the totality of
the circumstances.
      20
            The dissent characterizes our conclusion that the use of such
discriminatory tactics weighs toward a finding of involuntariness as
“bizarre.” Dissent at 35. This conclusion is not surprising in light of the
dissent’s view that the police should be permitted to use discriminatory
rhetoric during custodial interrogations so long as it is for a proper
purpose, such as putting an accused “at ease.” Dissent at 37; see supra note
18.



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I’m divorced, you know what I mean?         Cause I did some fucked up

things.”

            This attempt by Det. Tokita to build a rapport between

himself and Baker during the interrogation is an example of the

“false friend” interrogation technique.          See Rettenberger, 984

P.2d at 1016.     Officers use this technique to represent to the

accused that they are friends who will act in the accused’s best

interest.21   2 Wayne R. LaFave et al., Criminal Procedure §

6.2(c) (4th ed.) (“Another type of deceit is the so-called

‘false friend’ technique, whereby the interrogator represents

that he is a friend acting in the suspect’s best interest.”).

After establishing a rapport, “the suspect is fooled into

trusting that the interrogator’s behavior will conform to the

norms of friendship: the interrogator will loyally help the

suspect out of the jam, advise the suspect to confess only if

confession will be beneficial, and so on.”          Margaret L. Paris,

Trust, Lies, and Interrogation, 3 Va. J. Soc. Pol’y & L. 3, 21-

22 (1995).    Standing alone, this technique is typically not

enough to render a confession involuntary, but its coercive

effect may be exacerbated by its use in conjunction with other

     21
            The dissent rejects the notion that a police officer’s attempts
to build a false rapport with the accused during a custodial interrogation
may be coercive and argues that the tactic is not recognized by our law.
Dissent at 38. In Spano v. New York, a case we cited in Kelekolio as an
example of an extrinsic falsehood, the Supreme Court of the United States
explicitly recognized the coercive nature of such deceptions. Spano, 360
U.S. 315, 323-24 (1959); Kelekolio, 74 Haw. at 513, 849 P.2d at 74.



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coercive interrogation tactics.       Rettenberger, 984 P.2d at 1017

(“The significance of the [false friend] stratagem comes in

relation to other tactics and factors.”).

            Here, Det. Tokita sought to earn Baker’s trust by

assuring Baker that he was being forthright and not “playing

games.”     He implied that since he was “being straight up” with

Baker, he was entitled to reciprocal treatment because “[f]air

is fair.”    In doing so, Det. Tokita implied that there was a

relationship of trust between himself and Baker, and that

relationship created a mutual obligation of honesty.

Additionally, the detective attempted to demonstrate empathy for

Baker by suggesting that he also cannot control his behavior

when intoxicated.     To the extent that Baker believed Det. Tokita

was not his adversary, he was less likely to question the

veracity of Det. Tokita’s statements, more likely to believe any

promises or threats, and more likely to ultimately confess,

regardless of guilt.     Rettenberger, 984 P.2d at 1017.         Because

Det. Tokita used this tactic in conjunction with several other

coercive interrogation techniques, we find that its use was

reasonably likely to influence Baker to make an involuntary

confession.    Therefore, its use weighs toward Baker’s confession

being involuntary.

            During the interrogation, Det. Tokita repeatedly

encouraged Baker to confess to beating the CW, but Baker refused


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to do so.    This culminated with Det. Tokita telling Baker “this

is when I know you’re not being straight with me.           You know what

I mean and when I write my report, that’s what it’s going to

reflect.    That you weren’t being straight with me about that.”

(Emphasis added.)    Baker, who had consistently denied beating

the CW until this comment, asked Det. Tokita, “What do you want

to hear, officer?    What question do you want to ask?”          When Det.

Tokita again repeated the question “why did you beat her up?”

Baker responded, “I was drinking.        It was in the moment.      I was

fucked off my ass.”

            By informing an accused person that any untruthfulness

will be recorded and reported to other persons or entities in

the criminal justice system, the officer is making an implied

threat that denying involvement in the crime will have adverse

consequences.    The coercive nature of this tactic is exacerbated

when, as here, it is deployed after repeated attempts to

convince the accused to adopt the officer’s version of events

have failed.    While “mere advice” from the police that it would

be better for the accused to tell the truth does not render a

subsequent confession involuntary, an interrogating officer’s

exhortations to tell the truth accompanied by threats or

promises are more likely to result in an accused’s subsequent

statement being involuntary.      Kelekolio, 74 Haw. at 505, 849

P.2d at 70.    Det. Tokita warned Baker that the report itself


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would be detrimental to Baker if it showed that he continued to

deny assaulting the CW.       The detective’s statements were an

implicit threat to Baker of adverse consequences if he continued

in his denial, and Baker’s response indicates his clear

understanding of that warning.        Thus, Det. Tokita’s reference to

the report was reasonably likely to influence Baker to make an

involuntary confession, and it also weighs in favor of Baker’s

statement being involuntary.22

          b. Deception About Incontrovertible Physical Evidence

            In addition to the coercive tactics already discussed,

Det. Tokita deliberately and repeatedly told Baker during the

interrogation that DNA evidence tied Baker to the sexual assault

of the CW.    As Officer Esaki testified at trial, however, none

of the DNA evidence recovered could be connected to Baker.              By

Det. Tokita’s own admission, this was a lie designed to elicit

Baker’s confession.      Since the lie was in regard to the facts of

the alleged offense, it was an intrinsic falsehood.            Matsumoto,

145 Hawai‘i at 324, 452 P.3d at 321.         Under Kelekolio, this

tactic would be treated like any other intrinsic factual


     22
            The dissent asserts that Det. Tokita “in no way” was implying
that Baker would suffer adverse consequences for not confessing to the
narrative when the detective told Baker: “You know what I mean and when I
write my report, that’s what it’s going to reflect. That you weren’t being
straight with me about that.” Dissent at 39 (emphasis added). The obvious
implication made by the reference to the report is confirmed by Baker’s
response, in which he replies to Det. Tokita, “What do you want to hear[?]”
The dissent may fail to recognize the implication of Det. Tokita’s reference
to the report, but Baker did not.



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deception.   See Kelekolio, 74 Haw. At 513, 849 P.2d at 74.

However, new developments have augmented our understanding of

the inherently coercive nature of misrepresentations about

incontrovertible physical evidence.        See Corley v. United

States, 556 U.S. 303, 321 (2009) (stating that there is mounting

empirical evidence that the pressures inherent in custodial

interrogations can induce a “frighteningly high percentage of

people to confess to crimes they never committed”) (citing

Steven A. Drizin & Richard A. Leo, The Problem of False

Confessions in the Post–DNA World, 82 N.C. L. Rev. 891, 906–07

(2004)).   As such, we now consider how a court tasked with

determining the voluntariness of an accused’s statement should

weigh an interrogating officer’s use of intrinsic factual

deception about incontrovertible physical evidence.

           The presentation of falsified incontrovertible

evidence is designed to demonstrate to the accused that they

will inevitably be found guilty of the alleged crime.            The

Decision to Confess Falsely, supra, at 1013.          The fact that the

accused has failed to convince the interrogating officer of

their innocence demonstrates that the accused will also be

unable to convince a prosecutor, judge, or jury.           Id.   When

confronted with false evidence such as DNA, which is uniquely

identifying and therefore appears to be truly incontrovertible,

the accused can come to believe that there is no alternative but


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to confess.    Richard J. Ofshe & Richard A. Leo, The Social

Psychology of Police Interrogation: The Theory and

Classification of True and False Confessions, 16 Stud. L. Pol. &

Soc’y 189, 202-203 (1997).      This is especially true when the

false evidence is characterized as scientific because people

generally expect scientific tests to be accurate and

trustworthy.   See Matsumoto, 145 Hawai‘i at 326, 452 P.3d at 323;

see also Miriam S. Gohara, A Lie for a Lie: False Confessions

and the Case for Reconsidering the Legality of Deceptive

Interrogation Techniques, 33 Fordham Urb. L.J. 791, 822 (2006)

(“Suspects tend to believe that ‘scientific’ evidence--such as

DNA, fingerprints, and even lie detector tests--are generally

accepted by juries as infallible proof of guilt.” (footnote

omitted)).    What ultimately makes deception about

incontrovertible evidence insidious is the implied threat that

it carries: independent incriminating evidence exists, so the

accused should confess in order to enter a mitigating statement

into the record.    Gohara, supra, at 825-26.

          Other courts in addressing the coercive nature of

deceptions regarding incontrovertible physical evidence have

found that fabricated physical evidence can render a suspect’s

confession invalid.     One such case is State v. Cayward, a case

this court cited in Kelekolio as an example of when intrinsic

factual deception may render a confession involuntary.            Cayward,


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552 So.2d 971 (Fla. Dist. Ct. App. 1989); Kelekolio, 74 Haw. at

514 n.17, 849 P.2d at 74 n.17.         In Cayward, a Florida District

Court of Appeal invalidated a confession obtained by police

officers who presented the suspect with fabricated lab reports

that purported to show that semen stains recovered from the

victim’s clothes matched the suspect’s DNA.            552 So.2d at 974-

75.   Similarly, in State v. Patton, the suspect’s confession was

deemed per se involuntary under the totality of the

circumstances test because it was induced by a doctored audio

tape.    826 A.2d 783, 784 (N.J. Super. Ct. App. Div. 2003).             The

Supreme Court of Utah recognized the particularly coercive

nature of false evidence “allegedly derived from scientific

technologies” when it held that the police’s repeated and

egregious lies about the existence of physical evidence rendered

a suspect’s confession involuntary.          Rettenberger, 984 P.2d at

1015-16 (quoting The Decision to Confess Falsely, supra, at

1023) (holding a confession involuntary when, although no

physical evidence existed against the defendant, the

interrogating officers falsely told the defendant they had

fingerprint matches, blood matches, recorded phone calls, and

more).

            In regard to coerciveness, there is no meaningful

difference in the impact to an accused between a forgery, as

used in Cayward and Patton, and oral misrepresentations as used


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in Rettenberger and this case.23        To the suspect, who does not

expect the police to lie, there is no meaningful distinction

between being given a piece of paper that purports to document

guilt and an officer’s confident assertion that scientific

evidence incontrovertibly establishes the suspect’s guilt.

           Det. Tokita falsely told Baker several times that

there was physical DNA evidence that would incriminate him.

Prior to being told there was incontrovertible physical evidence

implicating him, Baker refused to confess and repeatedly denied

any wrongdoing.     It was only after Det. Tokita asserted that

physical evidence conclusively established that Baker had sex

with the CW that he began to confess.24         Each time Det. Tokita

repeated his assertion that he had DNA evidence that would

implicate Baker, Baker volunteered more information.            Every

      23
            The Cayward and Patton courts were particularly alarmed by the
use of forgeries because of the “potential for mischief if the fabricated
evidence found its way into the trial.” Patton, 826 A.2d at 800.
     24
            The Chief Justice’s concurring and dissenting opinion
distinguishes Det. Tokita’s statements that “we g[o]t physical evidence, so
you cannot deny that you didn’t have sex with her” and “[w]e have physical
evidence and nobody can deny physical evidence[,]” from the detective’s
statement, “[t]hat’s why I know there’s physical evidence that you guys
cannot deny because there’s DNA in there and you know that DNA’s one of [a]
kind,” concluding that the former was not coercive because Det. Tokita did
not specifically reference DNA. Recktenwald, C.J., Concurring and Dissenting
(Concurrence/Dissent) at 6 n.2. However, an interrogating officer’s false
assertion that the accused’s guilt is incontrovertibly established by
physical evidence can be equally coercive to the accused without mentioning
DNA. In this case, for example, Baker refused to admit any wrongdoing prior
to the detective’s false statement about undeniable physical evidence. See
Rettenberger, 984 P.2d at 1015-16 (holding that an officer’s
misrepresentations that “they had unspecified ‘physical evidence’” that
linked defendant to the crime weighed toward defendant’s confession being
involuntary).




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repetition of this assertion made the implied threat to Baker

that his guilt was conclusively established by incriminating

evidence.    And correlatively, every reiteration made the implied

promise that he could confess now, enter a mitigating statement

into the record, and receive more favorable treatment.25

            Det. Tokita’s misrepresentations about physical DNA

evidence implicate a matter intrinsic to the case and therefore

are considered under the totality of the circumstances.

Kelekolio, 74 Haw. at 511, 849 P.2d at 73.          However, in light of

the various studies and cases that have emerged since Kelekolio,

we recognize that false claims of physical evidence result in an

unsettling number of false or involuntary confessions.26             Gohara,


      25
            Additionally, Det. Tokita previously told Baker that he was being
honest with him because Baker did not have a criminal record as an adult.
This likely aggravated the coercive effect of the detective’s lies about
incontrovertible physical evidence tying Baker to the crime.
     26
            The infamous case of the Central Park Five provides a salient
example. One of the innocent boys who eventually confessed was told by a
detective that his fingerprints would be found on the jogger’s body, even
though the detective knew this was not true. Gohara, supra, at 842 n.9. The
boys were convicted in 1990, based almost entirely on their coerced
confessions. However, in 2002 the Central Park Five’s convictions were
vacated after defense moved to vacate the judgment, with the prosecution
submitting a 57 page affirmation detailing the flaws and errors in the
investigation. People v. Wise, 752 N.Y.S.2d 837 (N.Y. Sup. Ct. 2002).
            The dissent distinguishes the Central Park Five case from this
one because there is corroborating evidence of Baker’s culpability. Dissent
at 37 n.5. The United State Supreme Court has rejected an approach that
considers the existence of corroborating evidence in determining whether a
confession was induced by impermissible methods:

            Indeed, in many of the cases in which the command of the
            Due Process Clause has compelled us to reverse state
            convictions involving the use of confessions obtained by
            impermissible methods, independent corroborating evidence
            left little doubt of the truth of what the defendant had
            confessed. Despite such verification, confessions were
                                                             (continued . . .)


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supra, at 826 (“An innocent person and a guilty person alike are

likely to see the ‘evidence’ for what it appears to be--a threat

of dire consequences awaiting them regardless of whether they

confess. . . .      [B]y any rational calculation, a confession may

ameliorate the otherwise inevitable and unhappy consequences

awaiting the suspect, whether he is guilty or innocent.”);

Drizin & Leo, supra, 906–07.        Thus, we reaffirm our holding in

Kelekolio that intrinsic factual deception is analyzed under the

totality of the circumstances, but we clarify that

misrepresentations about the existence of incontrovertible

physical evidence that directly implicates the accused is an

exceptionally coercive interrogation tactic and its use is a

strong indicator that the suspect’s statement was involuntary.27


(. . . continued)

            found to be the product of constitutionally impermissible
            methods in their inducement. Since a defendant had been
            subjected to pressures to which, under our accusatorial
            system, an accused should not be subjected, we were
            constrained to find that the procedures leading to his
            conviction had failed to afford him that due process of law
            which the Fourteenth Amendment guarantees.

Rogers v. Richmond, 365 U.S. 534, 541 (1961) (emphasis added); see also
Aleman v. Vill. of Hanover Park, 662 F.3d 897, 906 (7th Cir. 2011) (“The
question of coercion is separate from that of reliability. A coerced
confession is inadmissible . . . even if amply and convincingly
corroborated.” (citing Rogers, 365 U.S. at 540-41)).


      27
            The dissent emphasizes the intrinsic nature of Det. Tokita’s
deception “regarding the existence of incriminating evidence” and appears to
conclude that that prevents it from being coercive. Dissent at 41. This is
inconsistent with our law, which provides that intrinsic factual deception is
coercive unless it is not of a type that would reasonably induce a false or
involuntary confession. Kelekolio, 74 Haw. at 513, 849 P.2d at 74 (“[W]e
emphasize that we are not purporting to enunciate a bright line per se rule
                                                             (continued . . .)


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In certain cases, lies about incontrovertible physical evidence

may, standing alone, render the accused’s subsequent confession

involuntary.      See Kelekolio, 74 Haw. at 514 n.17, 849 P.2d at 74

n.17 (citing Cayward, 552 So. 2d at 972-74); Patton, 826 A.2d at

784.    Accordingly, Det. Tokita’s lies to Baker about the

existence of incontrovertible physical evidence implicating him

in the attack on the CW strongly weigh toward Baker’s statement

being involuntary.

             The dissent maintains that Det. Tokita was

constitutionally permitted to use some of the impermissible

tactics that were employed to elicit Baker’s confession because

they had not been explicitly condemned by this court at the time

of the interrogation in this case.           Dissent at 28.     In essence,

the dissent argues that a tactic’s coerciveness is related to

this court’s recognition of it, which is plainly incorrect.

Interrogation tactics may render a confession involuntary if

they are coercive; a tactic does not become coercive only after

it has already been “prohibited by the courts or the Legislature



(. . . continued)

that the use of intrinsic factual deception cannot, given the totality of
circumstances surrounding any given statement, result in an involuntary
confession.”). The Kelekolio court in fact recognized that deception as to
scientific evidence is eminently likely to induce a false or involuntary
confession, even when the deception concerns intrinsic facts. Id. at 513–14,
514 n.17, 849 P.2d at 74, 74 n.17 (citing Cayward as an example for when an
intrinsic factual deception renders a confession involuntary under the
totality of the circumstances).




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of this State.”     Dissent at 28.     The implication of the

dissent’s contention is that coercive tactics previously not

condemned by this court are shielded from review.            This is not

an approach that we have ever taken.         Indeed, this court

recently vacated a defendant’s conviction after we unanimously

held that an interrogating officer’s falsehood about polygraph

results was extrinsic and per se coercive, despite the fact that

our determination was not announced prior to the defendant’s

interrogation.28    Matsumoto, 145 Hawai‘i at 325-27, 452 P.3d at

322-24.

           c. Consideration of the Totality of the Circumstances

             In determining the ultimate issue of voluntariness,

the individual circumstances relevant to the voluntariness of


      28
            The dissent states that we rely on “a law review article” to
support our conclusions as to the coerciveness of Det. Tokita’s interrogation
tactics. Dissent at 38. This disregards the numerous scholarly authorities
cited in this opinion. This court has consistently considered new
developments in social science when deciding critical issues such as the one
presented here. See, e.g., State v. Cabagbag, 127 Hawai‘i 302, 310, 277 P.3d
1027, 1035 (2012) (stating that the “robust body of research” that had
developed in the area of eye witness identifications supported requiring the
circuit courts to give a specific jury instruction upon the request of the
defendant regarding the trustworthiness of an eyewitness identification if
such identification is central to the case); State v. Kaneaiakala, 145 Hawai‘i
231, 242, 450 P.3d 761, 772 (2019) (stating that a “robust body of
scholarship and empirical research has emerged calling into doubt” whether
certain factors previously adopted by the court were “sufficient indicators
of reliability and admissibility”).
            Allowing our understanding of the factual nature of coercion to
be dictated by outmoded and disproven theories of human psychology,
particularly in the face of robust scholarship and empirical research, would
be an abdication of our constitutional duty to uphold a defendant’s right
against self-incrimination. See Matsumoto, 145 Hawai‘i at 327, 452 P.3d at
324 (“Extensive scientific literature and numerous documented cases have
demonstrated the coercive nature of falsified polygraph test results[.]”).




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the accused’s statement must be considered in their totality.

Kelekolio, 74 Haw. at 502, 849 P.2d at 69; Wilson, 260 F.3d at

953.    During the course of the interrogation, Det. Tokita

employed seven separate improperly coercive interrogation

techniques.      They were as follows: (1) the comments suggesting

the public and media would perceive Baker more favorably if he

confessed; (2) the implication that Baker would be perceived

less favorably in court if he continued to deny guilt; (3) the

minimization narratives suggesting the conduct was

understandable because of the drugs and alcohol involved; (4)

the use of unlawfully discriminatory gender-based stereotypes to

excuse or explain conduct; (5) the use of the false friend

technique; (6) the insinuation that Baker’s refusal to admit to

assaulting the CW would be set forth in the detective’s report

and could adversely affect him; and (7) the detective’s false

assertion that there was incontrovertible DNA evidence showing

that Baker had sex with the CW, which, as the detective

testified at trial, was told to Baker to “try[] to get the truth

out of him.”

             An interrogator’s use of multiple coercive

interrogation tactics in conjunction can exacerbate the coercive

effect of the individual tactics.           See DiGiambattista, 813

N.E.2d at 528 (explaining that the coercive effect of an

assertion about irrefutable evidence of guilt is worsened when


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it is combined with minimization tactics); Rettenberger, 984

P.2d at 1017 (“The significance of the [false friend technique]

comes in relation to other tactics and factors.”).            All of the

tactics used here, except for the improper gender stereotyping,

made an implied promise to Baker that he would benefit if he

confessed and suffer adverse consequences if he did not.             The

use of these tactics in conjunction with one another exacerbated

their overall coercive effect on Baker because they ultimately

presented the same implicit promise of gaining a benefit by

confessing--and receiving a detriment by not admitting guilt.29

           The dissent maintains that the surrounding

circumstances of the interview weigh in favor of voluntariness


     29
            The dissent suggests that our analysis requires that any comment
alluding to “positive outcomes for the defendant” is an implied promise of a
benefit from confessing, and it concludes that each tactic Det. Tokita used
was permissible under Kelekolio’s holding that “mere advice from the police
that it would be better for the accused to tell the truth when unaccompanied
by either a threat or promise does not render a subsequent confession
involuntary.” Dissent at 32; Kelekolio, 74 Haw. at 505, 849 P.2d at 70
(brackets omitted). Manifestly, the detective’s insinuations were not “mere
advice” that it would be better for Baker to tell the truth; the detective
repeatedly demanded that Baker confess to committing the crime in a specific
manner, which he supplied through a minimized narrative of the incident.
When Baker failed to conform his confession to the detective’s narrative, the
detective intimidatingly informed Baker that such deviation would be
reflected in his report, prompting Baker to ask the detective “What do you
want to hear, officer? What question do you want to ask?” (Emphasis added.)
Additionally, this court held in Kelekolio that exhortations to tell the
truth are only appropriate if they are “unaccompanied by either a threat or
promise.” Kelekolio, 74 Haw. at 505, 849 P.2d at 70 (emphasis added). Here,
as discussed above, Det. Tokita’s tactics implied to Baker that he would
benefit from confessing and suffer consequences if he did not. It is
incorrect to suggest that the interrogation consisted solely of “mere advice”
that it would be better to tell the truth unaccompanied by either a threat or
promise. With the sole exception of Det. Tokita’s discriminatory comments,
each of the impermissible tactics Det. Tokita employed was accompanied by
implicit threats or promises, which is prohibited under Kelekolio. Id.




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and accordingly concludes that Baker’s confession was not

coerced.   Dissent at 42-44.      The dissent first points to the

fact that Baker was informed of his constitutional rights and

waived them.    However, the question of whether an accused’s

decision to give a statement was a free and unconstrained choice

is distinct from whether Miranda warnings were given and

knowingly and intelligently waived.         Miranda warnings do not

immunize statements obtained during custodial interrogations

from being the product of coercion.         See, e.g., Bowe, 77 Hawai‘i

at 53, 881 P.2d at 540 (holding that defendant’s confession was

involuntary although defendant had been “given Miranda warnings

and subsequently signed an HPD Form 81, waiving his

constitutional rights”).30

           The dissent also contends that Baker’s confession was

voluntary because Det. Tokita “never raised his voice or

vocalized aggressively.”       Dissent at 26 (quoting Kelekolio, 74

Haw. at 489, 849 P.2d at 64).        But psychological coercion does

      30
            The dissent cites to Dassey v. Dittmann, 877 F.3d 297 (7th Cir.
2017) (en banc), for the proposition that an accused’s adoption of a
proffered narrative weighs towards a confession being involuntary if the
accused completely subsumes their will to that of the interrogating officer
and adopts any proffered narrative in its entirety. Dissent at 43. To that
point, the dissent inaccurately asserts that we rely on Baker “entirely”
adopting Det. Tokita’s narrative. Dissent at 43. It is also incorrect that
a confession can only be involuntary if the accused completely subsumes their
will to that of the interrogating officer and adopts any proffered narrative
in its entirety. Yong Shik Won, 137 Hawai‘i at 340, 372 P.3d at 1075
(“Voluntariness means a ‘free and unconstrained choice.’”). The fact that
Baker did not adopt every specific fact that Det. Tokita presented to him
does not demonstrate that his confession was voluntarily given.




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not require an aggressive tone of voice.         See Matsumoto, 145

Hawai‘i at 326, 452 P.3d at 323 (“[F]alse polygraph results may

psychologically prime an innocent suspect to make a

confession.”); State v. Kazanas, 138 Hawai‘i 23, 26, 375 P.3d

1261, 1264 (2016) (“[C]oercion can be mental as well as

physical[.]” (first alteration in original) (quoting Miranda v.

Arizona, 384 U.S. 436, 448 (1966)).        Additionally, the dissent

asserts that Baker was a “mature individual.”          Dissent at 27

(quoting Frazier, 394 U.S. at 739).        Baker had only an eighth-

grade education, and his level of maturity clearly did not

safeguard him from the detective’s psychologically coercive

techniques.   See Clewis v. Texas, 386 U.S. 707, 712 (1967)

(finding that the defendant’s low educational attainment weighed

toward his confession being involuntary).         The dissent concludes

that Baker answered all of Det. Tokita’s questions “with ease”

and there is “no evidence” that the detective coerced Baker’s

confession in any way.     Dissent at 27, 43.      In fact, the circuit

court ruled that Baker’s statements during the final portion of

his interrogation were involuntarily made because of Det.

Tokita’s interrogation techniques, and the concurring and

dissenting opinion concludes that an additional, separate

portion of Baker’s confession was also not voluntarily obtained.

Concurrence/Dissent at 7.




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           Ultimately, the nature and extent of the coercive

interrogation tactics in this case strongly indicate that

Baker’s statement was involuntary.         As extensively discussed,

Det. Tokita utilized multiple coercive tactics in conjunction to

overbear Baker’s will, and it is clear that Baker’s statements

did not result from a free and unconstrained decision to make a

confession. Bowe, 77 Hawai‘i at 59, 881 P.2d at 546 (stating that

the “right to make a meaningful choice between confessing and

remaining silent” is “implicit in a fundamentally fair trial”).

           Accordingly, under the totality of the circumstances,

we conclude that Baker’s confession was not voluntarily

obtained.31   Det. Tokita’s use of multiple coercive interrogation

tactics and their use in conjunction rendered Baker’s confession

involuntary.32    Therefore, the admission of the statement at


     31
            The circuit court suppressed the final portion of the
interrogation “wherein the detective sought to get the defendant to admit
that he directed his brother to hit and assault the complaining witness,
which the brother did not want to do.” We do not see an impactful difference
between the coerciveness of Det. Tokita’s tactics in the final portion of the
interrogation and the rest of the interrogation. Throughout the
interrogation, as discussed, Det. Tokita employed impermissibly coercive
techniques. The dissent apparently disagrees with the circuit court’s
determination that a significant portion of Baker’s confession was
involuntary. Dissent at 4 (“It is clear to me from the audio recording of
Baker’s confession that Detective Tokita did not coerce Baker’s confession
and that it was voluntarily given.”).
     32
            Baker did not contend that any of the coercive tactics used by
Det. Tokita were per se coercive extrinsic falsehoods and thus we do not
address the voluntariness of his statement under that rubric. However, it is
noted that many of the tactics used, such as the comments about public
perception, perception in court, and the detective’s report, implicate facts
extrinsic to the alleged offense and may be extrinsic falsehoods under
Kelekolio.




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trial violated Baker’s right against self-incrimination under

article I, section 10 of the Hawai‘i Constitution.              Matsumoto,

145 Hawai‘i at 324, 452 P.3d at 321 (citing Kelekolio, 74 Haw. at

502, 849 P.2d at 69).        We note, however, that our decision does

not rest solely on Det. Tokita’s use of multiple coercive

tactics.     Although the use of multiple coercive tactics in

conjunction rendered Baker’s statement involuntary, a single

coercive interrogation technique may render a confession

involuntary.      See Kelekolio, 74 Haw. at 511, 514 n.17, 849 P.2d

at 73, 74 n.17 (citing Cayward as an example of when an

intrinsic falsehood would render a confession involuntary);

Patton, 826 A.2d at 784; cf. Matsumoto, 145 Hawai‘i at 325-27,

452 P.3d at 322-24 (holding that an officer’s extrinsic

falsehood about polygraph results was per se coercive and

rendered the defendant’s confession involuntary).


                               B. Harmless Error

             Once it has been determined that a confession was

erroneously admitted into evidence, the appellate court must

consider whether the erroneous admission was harmless beyond a

reasonable doubt.       Matsumoto, 145 Hawai‘i at 327, 452 P.3d at

324.    The erroneous admission of evidence is not harmless when

there is a reasonable possibility that the error might have

contributed to the conviction.          State v. McCrory, 104 Hawai‘i



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203, 210, 87 P.3d 275, 282 (2004).        If such a reasonable

possibility exists, then the error is not harmless beyond a

reasonable doubt and the judgment of conviction on which it may

have been based must be set aside.        Id. (quoting State v. Gano,

92 Hawai‘i 161, 176, 988 P.2d 1153, 1168 (1999)).          When a

conviction is largely dependent on a jury’s determination as to

the credibility of the complainant’s testimony, the erroneous

admission of evidence that contributes to the credibility of

that testimony is not harmless error.        See State v. Underwood,

142 Hawai‘i 317, 329, 418 P.3d 658, 670 (2018) (finding that

prosecutor’s improper statements were not harmless beyond a

reasonable doubt when conviction depended on credibility of

complaining witness).

          In this case, Baker’s statement to Det. Tokita

strongly bolstered the evidence adduced by the State at trial

that Baker was the perpetrator of the crime.          The State’s

evidence as to identity was predicated on the credibility of the

CW’s testimony, particularly because of the lack of physical

evidence that Baker had committed the alleged crime.

Additionally, Baker’s statement to Det. Tokita was contrary to

the exculpatory evidence adduced by the defense and undermined

its credibility.    Accordingly, the admission of Baker’s

statement was not harmless error.        Kazanas, 138 Hawai‘i at 41,

375 P.3d at 1279 (holding that when the case turns on the


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credibility of trial witnesses, the improper admission of a

statement which harmed credibility was not harmless beyond a

reasonable doubt).

            Based on the foregoing, the circuit court erred in

determining that Baker’s confession was voluntarily given, and

the ICA erred in affirming the circuit court’s ruling.33

                               V. CONCLUSION

            We are cognizant of the very serious injuries that

were suffered by the CW in this case and the egregious

circumstances of the offenses.        This court has recognized,

however, that “the more heinous the crime, the more care must be

exercised by the presiding judge to see that defendant’s rights

are protected.”     State v. Uyesugi, 100 Hawai‘i 442, 462, 60 P.3d

843, 863 (2002) (quoting Territory v. Hays, 43 Haw. 58 (Haw.

Terr. 1958)); see also Christopher J. v. Ames, 828 S.E.2d 884,

894 (W. Va. 2019) (“[T]he horrific acts . . . committed against

the victims in this case cannot prevent this Court from carrying


      33
            Our determination that Baker’s confession was involuntary renders
it unnecessary to address Baker’s contention that the circuit court abused
its discretion in redacting from his confession that he was “raped as a kid.”
It is also unnecessary to resolve Baker’s arguments regarding consecutive
sentencing and Apprendi considerations. However, we note that at sentencing
the circuit court considered the fact that Baker had “taken no responsibility
at any time” when deciding to impose consecutive sentences. In relying on
Baker’s unwillingness to take responsibility for the crime, the court
violated the well-established rule that a sentencing court may not consider a
defendant’s refusal to admit guilt in imposing sentence. State v. Barnes,
145 Hawai‘i 213, 219, 450 P.3d 743, 749 (2019); State v. Kamana‘o, 103 Hawai‘i
315, 316, 82 P.3d 401, 402 (2003).




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out its duty to apply the law equally to all litigants.”).

Thus, our application of the law cannot turn on the nature and

circumstances of the charged crime, and the commitment to this

principle is crucial to a defendant’s right to due process.

Uyesugi, 100 Hawai‘i at 462, 60 P.3d at 863.         The Supreme Court

of the United States articulated this obligation many decades

ago and explained that upholding a conviction that follows the

admission into evidence of an involuntary confession is

impermissible, even if the confession is likely to be true,

because the methods used to obtain it offend the underlying

principles of our criminal justice system.

          [C]onvictions following the admission into evidence of
          confessions which are involuntary, i.e., the product of
          coercion, either physical or psychological, cannot stand.
          This is so not because such confessions are unlikely to be
          true but because the methods used to extract them offend an
          underlying principle in the enforcement of our criminal
          law: that ours is an accusatorial and not an inquisitorial
          system—a system in which the State must establish guilt by
          evidence independently and freely secured and may not by
          coercion prove its charge against an accused out of his own
          mouth.

Rogers v. Richmond, 365 U.S. 534, 540–41 (1961) (emphases

added).

          We also recognize that interrogations play an

important role in our criminal justice system.          But police

interrogations must be conducted in conformance with societal

standards, and our society has been long-committed to the

principle that criminal proceedings should be accusatorial

rather than inquisitorial.      The dissent disagrees with the


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outcome of this case and suggests that our holding will render

“police officers wholly unable to question suspects.”            Dissent

at 33.   This is simply not the case.       “Nothing we have said

today affects the powers of the police to investigate ‘an

unsolved crime[]’ by gathering information from witnesses and by

other ‘proper investigative efforts.’”         State v. Kitashiro, 48

Haw. 204, 214, 397 P.2d 558, 564 (1964) (citations omitted)

(quoting Escobedo v. Illinois, 378 U.S. 478, 492 (1964)).             Our

holding requires only that “when the process shifts from

investigatory to accusatory--when its focus is on the accused

and its purpose is to elicit a confession,” the interrogating

officers may not use coercive interrogation techniques to induce

a confession.   Id.   Our decision is an application of a

principle to which we are constitutionally committed, that

confessions should be freely and voluntarily given and must not

be the product of coercion.      State v. Yong Shik Won, 137 Hawai‘i

330, 340, 372 P.3d 1065, 1075 (2015) (“Voluntariness means a

‘free and unconstrained choice.’” (quoting State v. Shon, 47

Haw. 158, 166, 385 P.2d 830, 836 (1963))); see also State v.

Bowe, 77 Hawai‘i 51, 57, 881 P.2d 538, 544 (1994) (“An

involuntary confession is inherently untrustworthy because the

free will of an individual is overborne by the external

influence exerted in obtaining it.”).




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          Accordingly, the ICA’s February 2, 2018 Judgment on

Appeal and the circuit court’s January 29, 2016 judgment are

vacated, and this case is remanded to the circuit court for

further proceedings consistent with this opinion.


Dwight C.H. Lum                          /s/ Sabrina S. McKenna
for petitioner
                                         /s/ Richard W. Pollack
Sonja P. McCullen
for respondent                           /s/ Michael D. Wilson




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