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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000984
                                                               14-APR-2015
                                                               09:06 AM



            IN THE SUPREME COURT OF THE STATE OF HAWAII

                                  ---o0o---
________________________________________________________________

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

                                     vs.

                            TOI NOFOA,
                 Petitioner/Defendant-Appellant.
________________________________________________________________

                             SCWC-12-0000984

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-12-0000984; CR. NO. 08-1-1504)

                              April 14, 2015

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

                  OPINION OF THE COURT BY WILSON, J.

           Three principal issues are presented in this appeal

from Petitioner Toi Nofoa’s convictions for kidnapping and

terroristic threatening in the second degree: 1) whether the

circuit court erred in instructing the prosecutor to inform the

jury during closing arguments that the complaining witness was

unavailable because she was dead—a fact not in evidence, 2)
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whether the admission of the complaining witness’s preliminary

hearing testimony at trial violated Nofoa’s right to

confrontation, and 3) whether the circuit court erred in

admitting the 911 call at trial.          We conclude that the circuit

court committed error in regards to the first two issues.

Because the circuit court’s errors were not harmless beyond a

reasonable doubt, we vacate the judgment of the Intermediate

Court of Appeals (ICA) and remand to the circuit court for a new

trial.

                              I.    Background

A.   Pretrial Proceedings

           In September 2008, Nofoa was charged by complaint in

the District Court of the First Circuit (district court) with

terroristic threatening in the first degree in violation of

Hawaii Revised Statutes (HRS) § 707-716(1)(e)1 and kidnapping in

violation of HRS § 707-720(1)(e).2         The complaining witness (CW)

was Nofoa’s former girlfriend.

           The district court issued a “Judicial Determination of



     1
            At the time of the offense at issue in this case, HRS § 707-
716(1)(e) (Supp. 2007) stated, “[a] person commits the offense of terroristic
threatening in the first degree if the person commits terroristic threatening
. . . [w]ith the use of a dangerous instrument.”
     2
            HRS § 707-720(1)(e) (2014) states, as it did at the time of the
offense, “[a] person commits the offense of kidnapping if the person
intentionally or knowingly restrains another person with intent to . . .
[t]errorize that person or a third person[.]”

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Probable Cause for the Extended Restraint of Liberty of

Warrantless Arrestee” (JDPC) stating that there was probable

cause to arrest Nofoa for the offense of kidnapping.            An

affidavit along with an addendum from the Honolulu Police

Department (HPD) supported the JDPC.         The addendum to the

affidavit contained hearsay statements relaying what CW told a

HPD officer and detective regarding the alleged kidnapping and

terroristic threatening incidents.

           In March 2009, six months after Nofoa was charged with

kidnapping and terroristic threatening in the first degree,

Nofoa was arrested and charged with CW’s murder.            A trial

followed and Nofoa was acquitted of the murder and related

charges.

           Following the murder acquittal, the State filed

notices of intent to introduce at Nofoa’s terroristic

threatening and kidnapping trial 1) a transcript of CW’s

preliminary hearing testimony in the instant case, and 2) a

recording of CW’s 911 call.       Nofoa opposed the admission of this

evidence, arguing that it contained inadmissible hearsay

statements and that use of the evidence during trial would

result in confrontation clause violations.          Following a hearing,




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the Circuit Court of the First Circuit (circuit court)3 ruled in

the State’s favor and allowed the admission of both the

preliminary hearing testimony and the 911 call.

           The contents of the preliminary hearing testimony and

the 911 call, along with the circuit court’s disposition of the

related pretrial motions are discussed further below.

      1.   Preliminary Hearing

           On September 19, 2008, about a week following the

incident in question, CW testified at a preliminary hearing

before the district court4 regarding the events of the evening

leading up to Nofoa’s arrest.

           CW testified that she and Nofoa were in a relationship

for two and a half years.       On September 11, 2008, about a month

after Nofoa and CW’s relationship ended, CW was working at the

Ko Olina resort.     While CW was at work, Nofoa called her and

asked if she “was seeing another guy.”          CW responded that it

“was none of his business.”       At approximately 7:00 p.m., CW

finished work and proceeded to her car in the hotel parking lot.

After entering her car, she saw Nofoa approaching.            Nofoa asked

to speak with CW and she complied.         CW agreed to walk Nofoa to

      3
            The Honorable Randal K.O. Lee presided over the hearing and over
all other circuit court proceedings discussed herein. The Honorable Randal
K.O. Lee also presided over Nofoa’s murder trial.
      4
           The Honorable Leslie Hayashi presided over the preliminary
hearing.

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his car and during the walk, Nofoa became verbally aggressive

and pulled her by the hand.       When she attempted to turn around

and walk away, he grabbed her from the back and started pulling

her by the neck with his forearm.         He then reached into a

backpack that he had been carrying, grabbed a gun, and shoved it

into her neck.     He held the gun to her neck, told her he was

going to shoot her, and ordered her to get into his car.

           Nofoa then drove toward the North Shore.           While he was

driving, Nofoa asked CW why she wouldn’t “give him a chance” and

get back with him and while doing so, cried and hit himself,

saying that CW had made him this way.         Eventually, Nofoa stopped

at a gas station in Haleiwa to buy alcohol.          Nofoa told CW to

stay in the car and walked toward the gas station sundry shop.

CW “jumped out the door” of the car and walked toward the store.

She saw a male working at the gas station and whispered to him

to call the police.      Nofoa noticed CW exit the car and told her

to get back in the car or he would shoot the people in the

store.   When CW refused, Nofoa picked her up and carried her

back into the car.     As Nofoa was shoving CW into the car, she

began yelling and screaming.       CW testified that because she was

resisting, Nofoa tried slamming the door while her hands and

feet were sticking out of the car.         The male she had whispered

to, later identified as James Garcia, approached Nofoa’s car and

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yelled at him to leave CW alone.          Nofoa then jumped on CW’s lap

and tried to close the door while he sat on her.

           A female at the gas station, later identified as Ruby

McNeil, also yelled at Nofoa, telling him to leave CW alone and

informing him that she had called the police.           Nofoa then

released CW, ordered her out of the car, and drove away from the

gas station.    Shortly after, Nofoa returned to the gas station

and said to CW, “this is not my ending, this is not how it’s

supposed to end.”     He then left the gas station.         The police

arrived approximately ten minutes later.

           Defense counsel’s cross-examination of CW at the

preliminary hearing spanned twenty-one pages of the transcript.

Defense counsel asked CW the reason for CW and Nofoa’s break up

and CW responded that it was because she suspected he was seeing

another woman.     Defense counsel then questioned CW further about

the incident.    Regarding the gun, CW stated: “I don’t know if

. . . it was a toy gun, a plastic gun, a play gun.            I knew it

was a gun.”    CW also stated that Nofoa did not hit her during

the altercation.     Defense counsel asked if Nofoa told her their

final destination when they got into his car, to which she

answered: “He just said we were going to die.”           Neither the

court nor the prosecutor interrupted the cross-examination of CW

during the preliminary hearing.


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            Prior to trial, the State filed a notice of intent

to use CW’s preliminary hearing testimony based on her

unavailability.     Nofoa opposed the motion and filed a motion in

limine to exclude the testimony, claiming that the hearing

offered insufficient opportunity for cross-examination.             At the

hearing on the motions, Nofoa’s prior defense counsel, who

represented him at the preliminary hearing, testified that the

only materials available to him to prepare for the hearing were

the complaint and the JDPC.       Defense counsel had not received

and was not aware of 1) a three-page written statement by CW

(known as an HPD-252), 2) a thirty-two-page recorded interview

of CW,3 and 3) a five-page police report that included an oral

statement by CW.     It also appears that defense counsel did not

have access to the recording of the 911 call at this time.

Nofoa argued that he did not have a meaningful opportunity for

cross-examination at the preliminary hearing for two reasons: 1)

because preliminary hearings in Hawaii are confined to the issue

of probable cause, and 2) because he was not given CW’s

statements to police prior to the preliminary hearing.

            The court allowed the admission of the preliminary

hearing testimony, and rejected Nofoa’s argument that he was not

afforded a full and thorough cross-examination.           In reaching its
     3
            The transcription of CW’s recorded interview was not completed
until after the preliminary hearing.

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decision, the court noted that Nofoa’s defense counsel did not

specifically request additional discovery and that Nofoa failed

to demonstrate how the additional documents would have affected

his cross-examination.

           2.    911 Call

           The State also sought a pretrial ruling that the 911

call was admissible at trial.        The 911 call reflects that

McNeil—one of the gas station employees—called the police right

after Nofoa initially left the gas station, stating, “[w]e need

a police here for this domestic dispute, please.”            McNeil told

the 911 operator that a girl had been kidnapped.            CW then took

the phone and stated: “That’s my ex and he just kidnapped me all

the way from work and brought me all the way up here.”             She then

noted: “I jumped out the car over here.          And then I tried to get

away, but he was slamming the door on me.          And these guys over

here called the cops.”      The 911 dispatcher asked what kind of

car Nofoa had been driving, the license plate number, and in

what direction the car was heading.         The dispatcher concluded

the call by stating that someone would be sent to CW’s location.

CW did not mention that Nofoa had a gun during the 911 call.

           At the hearing regarding the 911 call, both

Garcia and McNeil testified about what they witnessed at the




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Haleiwa gas station.     Garcia testified that he saw CW outside of

the gas station through the store window and that he saw Nofoa

grab CW from behind and lift her up while she shouted “‘help me,

help me.’”    Garcia approached Nofoa’s car and witnessed Nofoa

pulling CW onto his lap while she screamed “‘[y]ou’re smashing

my hand.’”    Garcia grabbed the passenger door and said to Nofoa:

“‘Braddah, braddah, let her go, let her go.’”           Nofoa then

released CW, and Garcia took CW to the store instructing McNeil

to call 911.    Garcia described CW as “hysterical,” “scared,” and

“crying.”    Garcia testified that Nofoa returned to the store and

tried to calmly convince CW to leave with him.           At this point,

CW was “pissed off” and refused to leave with Nofoa.            Before

Nofoa left, he told CW: “‘Sole, I’m not done with you yet.’”

            McNeil’s testimony corroborated Garcia’s testimony.

McNeil described CW’s emotional state as “hysterical” and “in

pain” while she was making the 911 call.          McNeil testified that

after the 911 call but before the police arrived at the store,

Nofoa said in a “very threatening” manner, something like,

“‘Sole, I’m gonna come back for you.’”

            After arguments from the parties, the court granted

the State’s request to admit the 911 call, stating that it was

admissible under the excited utterance hearsay exception and was

nontestimonial in nature.


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B.   Trial

             During jury selection, the court noted that it did not

want references made to the prior case in which Nofoa was

acquitted of CW’s murder.        Based on the concern that CW’s

identity might remind the jury of the murder case, defense

counsel requested that the court question the jury panel to

determine if they were familiar with the facts surrounding the

prior case.     Specifically, defense counsel sought to determine

whether the jury panel may have heard about a “Hummer” or

“Humvee” that had been reported in the media as being at the

scene of CW’s murder:

             I understand the Court’s position that the Court doesn’t
             want to refer to the murder case and I understand why,
             . . . and the reason why I’m concerned about it is last
             time when we had voir dire during the murder, the thing
             that struck me that people seemed to remember was the
             Hummer, the incident with the Hummer, and they associated
             that with [CW’s] name.

On this basis, defense counsel requested that the court make a

statement to the jury panel to determine if they recalled “‘an

incident in the Ewa Beach area which involved a Humvee or Hummer

type sports utility vehicle.’”         The court refused, noting: “[I]n

this particular case, no humvee was involved. . . . I don’t want

the jurors to associate -- this case occurred in 2008, so . . .

four years have elapsed.        I don’t want the jurors to, one, refer

to the homicide -- but we’ll play it by ear, we’ll see how it

goes, okay?”

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           Following jury selection, the State began its case by

calling Garcia and McNeil, whose testimonies were similar to

their testimonies at the motion hearing.          Both witnesses

identified Nofoa as the male they saw with CW on September 11,

2008 and testified that they saw Nofoa pushing CW into the car

and slamming the door on her hand because she would not let go.

Garcia testified that CW appeared “scared” when she first

approached the window of the gas station store and that she was

in a “pissed-off state” and “[r]eal mad” after the 911 call.

Garcia also testified that Nofoa told CW before he left the gas

station: “‘Sole, I going get you.         We not done yet.     I not done

with you yet.’”

           A CD of the 911 call was played for the jury and

admitted into evidence.      A CD of CW’s preliminary hearing

testimony was also played for the jury and admitted into

evidence over the defense’s objection.          Before the preliminary

hearing CD was played, the court instructed the jury not to

speculate regarding CW’s unavailability:

           [U]nder certain circumstances the law permits the court to
           receive into evidence the testimony given by a witness in
           another hearing or proceeding who is unavailable to testify
           at trial. In this case the court has determined that [CW]
           is unavailable to testify at trial.

                 You are not to speculate as to the reason why [CW] is
           unavailable to testify at trial. The testimony given by
           [CW] in another hearing or proceeding has been received
           into evidence. Please bear in mind it is your exclusive
           right to determine whether and to what extent a witness
           should be believed and give weight to his or her testimony
           accordingly.
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           Nofoa was the only defense witness.          He contended that

CW contrived the charges to punish him for his infidelity.

Nofoa testified that he met with CW, his ex-fiancé, on September

11, 2008 to drop off a birthday card for her niece.            They

decided to go to the North Shore, and during the ride, CW became

angry with Nofoa, asking him if he was “‘taking us to where you

took those sluts’” in reference to CW’s volleyball teammates he

had “mess[ed] around with” in the past at Turtle Bay.             Nofoa and

CW continued arguing, cursing, and yelling at each other in the

car and eventually arrived at the gas station in Haleiwa.             CW

then stated to Nofoa, “‘[y]ou going to jail, [a]sshole,’” and

walked out of the car headed to the store.          Nofoa saw CW making

a gesture to the gas station store attendants to call 911 and he

then “panicked . . . grabbed her, [and] picked her up” in order

to bring her back to the car.        As he was trying to put CW into

the passenger seat, the cashier came to hold the door and told

Nofoa to let CW go.      Nofoa complied and CW went back to the

store with the cashier.      Nofoa drove away from the gas station

but then returned and told CW, “‘[w]e go home already’” and

“‘[y]ou causing too much dramas.’”         Nofoa denied saying to CW,

“‘[t]his isn’t over,’” and testified that he did not have a gun

on the day of the incident.       The defense rested following

Nofoa’s testimony.


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           Prior to closing arguments, the court repeated the

instruction it had given the jury regarding the preliminary

hearing CD, again stating: “You are not to speculate as to the

reason why [CW] is unavailable to testify at trial.”            The court

also informed the jury that the attorneys’ comments during

closing arguments should not be considered evidence.

           During the prosecutor’s closing argument, he

emphasized the importance of the jury’s credibility

determination in deciding the case.         Regarding Nofoa’s

testimony, the prosecutor stated: “So when you talk about

credibility, you have to ask yourself if that makes sense, or is

he telling a cockamamy story . . . .”         The prosecutor stated

that the jury should think about Nofoa’s “demeanor” and “tone of

voice” during his testimony and stated that Nofoa was “an

arrogant guy.”     The prosecutor also argued: “[Nofoa] had no good

intentions for [CW] at all.       He was there because he wanted her

to be fearful that she’s going to die.          And she had no way out.”

Finally, the prosecutor urged the jury to believe CW’s testimony

from the preliminary hearing, highlighting the testimony that

Nofoa intended to kill CW with his gun: “If you listen to what

[CW] says, he was going to kill her, and himself.            And he put

the gun to her neck.”




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           Defense counsel also emphasized the issue of

credibility during his closing argument.          Specifically, defense

counsel stated that CW’s 911 call, in which she did not mention

a gun, was more credible than her preliminary hearing testimony,

during which she did mention the gun.         Defense counsel also

illustrated CW’s motives for lying, including the fact that CW

and Nofoa had recently ended their engagement after CW

discovered that Nofoa was unfaithful.         Defense counsel then

asked the jury to determine whether CW or Nofoa was telling the

truth, based in part, on the fact that they were able to see

Nofoa testify in person:

                 And the question that we need to ask at this point
           is, if what [CW] is saying is true, okay, if it’s all true,
           then why does absolutely nothing back up her story? Not a
           single witness. Not a single scrap of physical evidence.
           Nothing. Okay. If her horrible kidnapping story is true,
           then why does [CW] not have any physical injuries?

           . . . .

                 The reason why nothing backs up her story is because
           she’s not telling the truth about how this night went down.
           You got to see [Nofoa]. You got to hear him when he
           testified. He had to answer questions from [the
           prosecutor]. And he told you what happened on that night.
           Okay.

                 On the other side of that coin, what do we know about
           [CW]? What do we know about her credibility? Okay. We
           know what kind of car she drives. We know she got a new
           boyfriend a month after she broke up her two and a half --
           well, her two and a half year, long-term relationship broke
           up. That’s about all we know.

                 Okay. Because you don’t know anything about her and
           her credibility, the only thing that you can do to judge
           her credibility is to compare her story to any other
           evidence presented in the trial. That’s the only thing you
           can do, because you didn’t get to see, hear, you know, like
           you did with [Nofoa].

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           At this point, the circuit court interrupted defense

counsel’s closing argument and asked the attorneys to approach

the bench.    The circuit court informed defense counsel that he

could not “comment on the fact that they were unable to see

[CW]” and because defense counsel did so, the jurors should be

informed why CW was not present.          The court found it necessary

to inform the jury regarding CW’s unavailability because it

concluded that defense counsel opened the door by raising the

issue of unavailability during his closing argument:

                 THE COURT: And she’s deceased. The fact of the
           matter is, you made it an issue, because you said, you said
           that he was here. You could see him testify. He could
           answer questions. She -- when you said that there was no
           evidence to back her up, that was fine. But you went over
           the line when you said you never see her testify. You
           couldn’t see how she testified.

           The court stated that the appropriate remedy was to

allow the prosecutor to inform the jury in rebuttal that CW was

“deceased” without saying “how she got deceased.”            Defense

counsel objected, asserting that he did not believe he opened

the door to the issue of CW’s availability and that his

statements related to “arguing about the nature of the hearsay

testimony.”    Defense counsel also objected on the basis that the

court sua sponte raised the issue and recommended as an

alternative remedy to strike his comment and order the jury to

disregard it.    The court responded that “throughout the entire

trial [the court] indicated that nobody should say why” CW was

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not at trial and that by stating that the jury was unable to see

CW, defense counsel was “commenting that she’s available.”

            Defense counsel continued his closing argument, and at

the end of the argument, the court initiated another bench

conference to further discuss its concern that defense counsel

referred to CW’s absence from trial.         The court told counsel

that the defense’s comment could allow for the inference that

Nofoa was more credible than CW, because the jury was able to

see him at trial, but did not see CW.         Defense counsel again

objected, noting that his intention in making the argument at

issue was to comment on the weight the jury should place on CW’s

out-of-court statements in comparison to other evidence adduced

at trial.    Defense counsel repeated his request that the court

strike his comment and give a curative instruction instead of

allowing the prosecutor to state that CW was dead.            The court

denied defense counsel’s request, and invited the prosecutor to

tell the jury that CW was dead: “[The prosecutor] is allowed to

say that [CW] was not available because she’s deceased.             But not

why and how she’s deceased.”

            Consistent with the court’s direction, the prosecutor

then delivered his rebuttal.       He began by introducing to the

jury an additional fact not in evidence: “[CW] is not here

because she’s dead.”      After telling the jury CW was dead, the


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prosecutor immediately drew the jury’s attention to Nofoa’s use

of a gun to threaten CW, citing CW’s preliminary hearing

testimony.

           The jury found Nofoa guilty of kidnapping and

terroristic threatening in the second degree (as an included

offense of terroristic threatening in the first degree).             The

circuit court sentenced Nofoa to 20 years imprisonment for the

kidnapping count and 1 year imprisonment for the terroristic

threatening count, terms to be served concurrently.

C.   ICA Appeal

           In a Summary Disposition Order (SDO), the ICA affirmed

Nofoa’s conviction and sentence.          State v. Nofoa, No. CAAP-12-

984, 2014 WL 406564, at *4 (App. Jan. 31, 2014) (SDO).             The ICA

held, inter alia, that 1) the circuit court did not display

judicial bias by instructing the prosecutor to inform the jury

that CW was dead; 2) Nofoa’s confrontation rights were not

violated when CW’s preliminary hearing testimony was admitted

into evidence because Nofoa had an adequate opportunity to

cross-examine CW at the hearing and had the same motives at

trial as he had at the hearing; and 3) the 911 call was properly

admitted under the excited utterance hearsay exception and was

nontestimonial.     Id. at *1-3.




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                             II.   Discussion

A.   The Circuit Court Abused Its Discretion by Instructing the
     Prosecutor To Introduce a Fact Not in Evidence and the
     Error Was Not Harmless Beyond a Reasonable Doubt

           Nofoa asks us to find judicial bias because the

circuit court’s actions rendered his trial fundamentally unfair.

We need not reach the question of judicial bias, however,

because we hold that the circuit court abused its discretion by

instructing the prosecutor during closing argument to introduce

the fact of CW’s death to the jury, and the resulting error was

not harmless beyond a reasonable doubt.

           A trial judge has broad discretion to control the

scope of closing arguments.        See State v. Adams, 61 Haw. 233,

234, 602 P.2d 520, 521 (1979) (per curiam).           However, as with

other aspects of a trial in which the judge is granted great

latitude, an abuse of discretion occurs if the trial court has

“clearly exceeded the bounds of reason or disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant.”     Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,

74 Haw. 85, 114, 839 P.2d 10, 26 (1992) (citing State v. Akina,

73 Haw. 75, 78, 828 P.2d 269, 271 (1992)); see also Larez v.

Holcomb, 16 F.3d 1513, 1520-21 (9th Cir. 1994) (reviewing

court’s control of closing arguments for abuse of discretion);




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United States v. Diaz, 961 F.2d 1417, 1418 (9th Cir. 1992)

(same); Adams, 61 Haw. at 234, 602 P.2d at 521 (same).

           Here, the circuit court abused its discretion because

its actions permitted the prosecutor to present to the jury a

fact not in evidence that resulted in substantial prejudice to

Nofoa.   To support this conclusion, we draw from our court’s

jurisprudence analyzing the consequence of a prosecutor

introducing facts outside the evidence during closing argument.

Although these cases examine the issue under the framework of

prosecutorial misconduct, they are informative here, where the

effect of the court’s instruction was to allow the State to

introduce to the jury a fact not in evidence.

           During closing arguments, prosecutors are “permitted

to draw reasonable inferences from the evidence and wide

latitude is allowed in discussing the evidence.”            State v.

Clark, 83 Hawaii 289, 304, 926 P.2d 194, 209 (1996) (citing

State v. Apilando, 79 Hawaii 128, 141–42, 900 P.2d 135, 148

(1995)).   However, we have held that a prosecutor’s comments are

improper when they go beyond the record to discuss “matters

outside the evidence adduced at trial.”          State v. Tuua, 125

Hawaii 10, 14, 250 P.3d 273, 277 (2011).          Thus, in State v.

Tuua, we held that a prosecutor’s comments were improper because

they referred to the consequences of the jury’s verdict.               Id.

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Specifically, during closing arguments, the prosecutor stated

that the defendant’s brother could not be successfully

prosecuted at a subsequent proceeding.          Id. at 15, 250 P.3d at

278.   The prosecutor’s apparent purpose in making this comment

was to dissuade the jurors from concluding that if they found

the defendant not guilty, his brother could be held responsible

for the assault at issue.       Id.     The court concluded that the

prosecutor’s comments, although “couched . . . as an attack on

. . . credibility” were improper because they “were not based on

the evidence in the record.”          Id.

           More recently, in State v. Basham, we determined that

a prosecutor’s comment during closing arguments that the

defendant lied to the police bypassed evidentiary rules and was

thus improper.     132 Hawaii 97, 114-15, 319 P.3d 1105, 1122-23

(2014).   We noted with concern that the defendant’s fundamental

right to confront the State’s evidence may be compromised when a

fact not presented at trial is referenced by the prosecutor

during closing.     Id. at 112-13, 319 P.3d at 1120-21 (citing

United States v. Klebig, 600 F.3d 700, 721 (7th Cir. 2009)).

           Here, as in Tuua and Basham, the prosecutor’s comment

that CW was deceased caused the jury to hear a fact—for the

first time—which had intentionally not been presented during

trial by either party.      Indeed, the circuit court specifically

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told the jury both prior to playing CW’s preliminary hearing

testimony and again at the close of evidence “not to speculate

as to the reason why [CW] is unavailable to testify at trial.”

In addition, during jury selection, the court demonstrated

concern that the jurors would associate CW’s death with the

instant case, noting that he did not want any reference to the

Humvee involved in CW’s murder case to be raised before the

prospective jurors.      Nonetheless, the circuit court reversed its

position during closing arguments, instructing the prosecutor to

inform the jury of CW’s death in an apparent attempt to cure the

defense’s “opening the door” on the issue of CW’s availability.5

The court directed the prosecutor to inform the jurors of a

prejudicial fact not in evidence despite defense counsel’s

repeated objections, and in doing so, abused its discretion.

           Because we cannot conclude that the introduction of

the fact not in evidence was harmless beyond a reasonable doubt,

we remand the case for a new trial.         Under the harmless error

standard, we “must ‘determine whether there is a reasonable

possibility that the error complained of might have contributed

to the conviction.’”      State v. Pauline, 100 Hawaii 356, 378, 60

P.3d 306, 328 (2002) (quoting State v. White, 92 Hawaii 192,

     5
            We need not reach the question of whether defense counsel opened
the door during his closing argument. Even assuming the “opening the door”
doctrine would be applicable in this context, the remedy of introducing CW’s
death was inappropriate.

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198, 990 P.2d 90, 96 (1999)).        If there is such a reasonable

possibility, then the error is not harmless beyond a reasonable

doubt, and the conviction must be set aside.           State v. Gano, 92

Hawaii 161, 176, 988 P.2d 1153, 1168 (1999) (citing State v.

Pulse, 83 Hawaii 229, 248, 925 P.2d 797, 816 (1996)); see also

Tuua, 125 Hawaii at 16, 250 P.3d at 279 (“An improper comment

warrants a new trial if ‘there is a reasonable possibility that

the error complained of might have contributed to the

conviction.’” (quoting State v. Hauge, 103 Hawaii 38, 47, 79

P.3d 131, 140 (2003)).      Here, several factors evince a

reasonable possibility that the circuit court’s error

contributed to Nofoa’s conviction.

            For one, there is a reasonable possibility that the

introduction of the fact not in evidence allowed the jury to

infer that Nofoa played a role in CW’s death, resulting in

substantial prejudice to Nofoa.        The State contends such an

inference was unlikely.      However, given the evidence adduced at

trial and the content of the State’s closing arguments, we

disagree.    See Gano, 92 Hawaii at 176, 988 P.2d at 1168 (stating

error “‘must be examined in light of the entire proceedings and

given the effect to which the whole record shows it is

entitled’” (quoting State v. Heard, 64 Haw. 193, 194, 638 P.2d



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307, 308 (1981))).     At trial, the jury heard evidence that Nofoa

used a gun to threaten his ex-girlfriend during the incident: he

“shoved” a gun into her neck; told her that they “were going to

die”; and said to her, “‘Sole, I going get you. . . . I not done

with you yet.’”     Such evidence coupled with hearing that CW was

in fact dead, would allow the jury to improperly infer that

Nofoa indeed acted on his threat to fatally harm CW.

           Moreover, during the State’s closing argument, the

prosecutor emphasized the testimony regarding Nofoa’s threats to

kill CW, stating: “[Nofoa] had no good intentions for CW at all.

He was there because he wanted her to be fearful that she’s

going to die.    And she had no way out.”        The prosecutor also

highlighted the presence of the gun, noting: “If you listen to

what [CW] says, he was going to kill her, and himself.             And he

put the gun to her neck.”       Thus, when the jurors heard that CW

was deceased during the prosecutor’s rebuttal argument, they had

fresh in their minds Nofoa’s purported desire to kill CW as well

as his apparent ability to carry out the threats by using the

gun in his possession.

           Under these circumstances, it would have been

reasonable for the jury to conclude —or at least consider the

possibility—that Nofoa caused CW’s death.           Accordingly, the

circuit court’s error resulted in a risk of undue prejudice to


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Nofoa, because it “divert[ed] [the jurors], by injecting an

issue wholly unrelated to [Nofoa’s] guilt or innocence into

their deliberations, from their duty to decide the case on the

evidence.”     State v. Pacheco, 96 Hawaii 83, 95, 26 P.3d 572, 584

(2001); cf. Hawaii Rules of Evidence (HRE) Rule 404(b) (Supp.

1994) (“Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show

action in conformity therewith.”).

           The timing of the introduction of the fact not in

evidence is also relevant.       We have previously noted that “‘the

prosecutor’s argument is likely to have significant persuasive

force with the jury.’”      Basham, 132 Hawaii at 115, 319 P.3d at

1123 (quoting State v. Klinge, 92 Hawaii 577, 592, 994 P.2d 509,

524 (2000)).     Here, introduction of CW’s death during the

prosecutor’s rebuttal distinguished it as one of the last facts

heard by the jury prior to deliberations, further exacerbating

the risk of prejudice.      That CW’s death was introduced during

the State’s rebuttal precluded Nofoa from confronting it, for

example, by informing the jury that as a matter of law, he was

not responsible for CW’s death.        See, e.g., Lucas v. United

States, 102 A.3d 270, 279 (D.C. 2014) (“‘[I]mproper

prosecutorial comments are looked upon with special disfavor



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when they appear in the rebuttal because at that point defense

counsel has no opportunity to contest or clarify what the

prosecutor has said.’” (quoting Anthony v. United States, 935

A.2d 275, 284 (D.C. 2007))).

           The lack of a limiting instruction also compounded the

effect of the prosecutor’s comment.         Specifically, the court

failed to instruct the jurors that CW’s death should not be

considered as evidence of Nofoa’s guilt in the terroristic

threatening and kidnapping case.6         Cf. State v. Murray, 116

Hawaii 3, 19, 169 P.3d 955, 971 (2007) (holding “[t]he potential

for undue prejudice is so great that failure to give a limiting

instruction with regard to prior convictions” results in error

“even if the defendant has not requested one” (citing Evans v.

Cowan, 506 F.2d 1248, 1249 (6th Cir. 1974))); State v. Cordeiro,

99 Hawaii 390, 416, 56 P.3d 692, 718 (2002) (holding potential

for unfair prejudice related to evidentiary issue “dispelled by

the circuit court’s limiting instruction to the jury”).



     6
             Prior to closing arguments, the circuit court did instruct the
jury that arguments of counsel were not evidence. However, given the generic
nature of the instruction and that the court provided no specific instruction
in relation to the prosecutor commenting on CW’s death, the court’s
instruction failed to mitigate the prejudice to Nofoa. See State v. Rogan,
91 Hawaii 405, 415, 984 P.2d 1231, 1241 (1999) (holding instruction to jury
that counsels’ arguments were not evidence did not “negate[] the prejudicial
effect” of the prosecutor’s inflammatory comments); State v. Marsh, 68 Haw.
659, 661, 728 P.2d 1301, 1302-03 (1986) (holding prejudicial effect of
prosecutor’s comment not “rendered harmless” by court’s general instruction
“that the arguments of counsel are not evidence”).

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           Moreover, the circuit court’s direction to the

prosecutor to present a fact not in evidence refuted the court’s

prior unavailability instruction—twice given—that the jury not

speculate as to the reason for CW’s unavailability.            The

contrast between the prior instruction and the reference to CW’s

death in closing heightened the potential for juror confusion

and prejudice to Nofoa.

           For the foregoing reasons, we conclude that the

circuit court abused its discretion in instructing the State to

introduce a fact not in evidence and there is a reasonable

possibility that the error might have contributed to Nofoa’s

conviction.

B.   Admission of CW’s Preliminary Hearing Testimony at Trial
     Resulted in a Confrontation Clause Violation Requiring
     Remand

           Nofoa additionally contends that the ICA erred when it

found that the preliminary hearing provided him with an

opportunity to effectively cross-examine CW.           In this regard,

Nofoa asks that we create a “bright-line rule” barring the use

of preliminary hearing testimony at trial.          We decline to do so.

Instead we hold that in this case, because only limited

discovery was provided to Nofoa at the preliminary hearing, and

later discovery contained significant inconsistencies, the

preliminary hearing did not provide a meaningful opportunity for


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cross-examination, resulting in a violation of Nofoa’s right to

confrontation under article I, section 14 of the Hawaii

Constitution and the sixth amendment of the United States

Constitution.    Because this error was not harmless beyond a

reasonable doubt, it provides an independent basis for vacating

the ICA’s judgment and remanding to the circuit court for a new

trial.7

           The confrontation clauses of article I, section 14 of

the Hawaii Constitution and the sixth amendment of the United

States Constitution require that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against” him or her.            In Crawford

v. Washington, the Supreme Court of the United States held that

testimonial out-of-court witness statements are barred under the

confrontation clause of the sixth amendment, unless the witness

is 1) unavailable; and 2) the defendant had a prior opportunity

for cross-examination.      541 U.S. 36, 59 (2004).       In State v.

Fields, we explained that under Crawford, “the admissibility of

testimonial hearsay [is] governed by the following standard:

where a hearsay declarant’s unavailability has been shown, the

testimonial statement is admissible for the truth of the matter
     7
            “‘We review questions of constitutional law de novo, under the
right/wrong standard.’” State v. Kalaola, 124 Hawaii 43, 49, 237 P.3d 1109,
1115 (2010) (quoting Jou v. Dai–Tokyo Royal State Ins. Co., 116 Hawaii 159,
164–65, 172 P.3d 471, 476–77 (2007)).

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asserted only if the defendant was afforded a prior opportunity

to cross-examine the absent declarant about the statement.”              115

Hawaii 503, 516, 168 P.3d 955, 968 (2007) (citing Crawford, 541

U.S. at 68).    We additionally determined that Crawford does not

prohibit the admission of a prior out-of-court statement where

“the hearsay declarant is cross-examined at trial about the out-

of-court statement.”      Id. at 523, 168 P.3d at 975.        In so

holding, we noted that even prior to Crawford, our jurisprudence

supported the proposition that “sufficient cross-examination of

the hearsay declarant at trial terminated the [confrontation

clause] inquiry.”     Id. (emphasis added).       Ultimately, we

concluded that Fields was “afforded a meaningful opportunity” to

cross-examine the witness at trial regarding the subject matter

of the out-of-court statement.        Id. at 528, 168 P.3d at 980

(emphasis added).     Unlike Fields, here CW did not appear at

trial to testify as to her out-of-court statement.            Nonetheless,

our discussion in Fields acknowledges that the right to confront

a witness is not satisfied simply by any cross-examination, but

instead, that the cross-examination must be sufficient and

meaningful.

           Preliminary hearing testimony constitutes testimonial

hearsay and is thus subject to the two-part test of

admissibility laid out in Crawford and Fields.           Fields, 115


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Hawaii at 513, 168 P.3d at 965.        Here, because there is no

question as to CW’s unavailability at trial, the admissibility

of CW’s preliminary hearing testimony rests on whether the

preliminary hearing provided Nofoa with a sufficient and

meaningful opportunity for cross-examination.

            Post-Crawford and Fields, our court has not developed

a standard to determine under what circumstances cross-

examination at a preliminary hearing provides the defendant with

a sufficient opportunity to confront a witness.           To advance such

a standard, we are guided by our pre-Crawford cases as well as

cases from other jurisdictions that examined the issue post-

Crawford.

            In State v. Faafiti, for example, we determined that a

preliminary hearing transcript was admissible at trial where

cross-examination of the witness at the preliminary hearing had

been extensive and thorough.       54 Haw. 637, 641, 513 P.2d 697,

701 (1973).    In so holding, we rejected the defendant’s argument

that the cross-examination was not sufficient because a

“‘preliminary hearing in Hawai[]i is limited to [the] question

of probable cause.’”      Id.   However, we recognized the importance

of allowing unrestricted cross-examination at the preliminary

hearing stage, stating: “We also advise the district judges to

permit the counsel for a defendant to examine fully and

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thoroughly witnesses at all preliminary hearings.”            Id. at 641-

42 n.4, 513 P.2d at 701 n.4.

           In Toledo v. Lam, 67 Haw. 20, 22, 675 P.2d 773, 775

(1984), we questioned the admissibility of preliminary hearing

testimony at trial where the defendant did not have access to

relevant discovery during the preliminary hearing.            In Toledo,

during the preliminary hearing at issue, the trial judge denied

the defendant’s request to produce a statement relied upon by a

State witness.     Id.   Toledo filed a writ of prohibition mid-

hearing arguing, inter alia, that she was denied the opportunity

to effectively cross-examine the State’s witness because her

counsel did not have access to the relevant statement.             Id. at

21-22, 675 P.2d at 774-75.       While we denied the extraordinary

writ, we noted that “[n]ormally, a cross-examination cannot be

full and thorough unless counsel is permitted access to the

witness’ [sic] previous statements on the matters on which the

witness is testifying . . . .”        Id. at 22, 675 P.2d at 775.        We

acknowledged that while discovery issues are within the judge’s

discretion, typically, such “disclosure will be necessary to the

exercise of the right of effective cross-examination.”             Id.

Finally, we stated that “withholding of such matters by the

State may well prevent its later use of the witness’ [sic]




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preliminary hearing testimony if the witness is unavailable at

trial.”    Id. at 22-23, 675 P.2d at 776.

           In Faafiti and Toledo, we recognized two relevant

factors in determining the admissibility of preliminary hearing

testimony at trial: 1) the restrictions placed on the cross-

examination by the trial court, and 2) the discovery available

to counsel at the time of the hearing in relation to the

effectiveness of cross-examination.         These factors have also

been recognized by other jurisdictions post-Crawford as relevant

in determining whether sufficient opportunity for cross-

examination is afforded during preliminary hearings, and in turn

whether preliminary hearing testimony is admissible at trial.

           In Chavez v. State, for example, the Nevada Supreme

Court considered the admissibility of preliminary hearing

testimony at trial, and found that the testimony was admissible

where the defendant was able to engage in “wide-ranging cross-

examination” during the preliminary hearing when “nearly all the

discovery was complete.”       213 P.3d 476, 485 (Nev. 2009) (per

curiam).   The court specifically noted that during the

preliminary hearing, the defendant “had a copy of [the

witness’s] videotaped statements to police” and used this to

question the witness about the alleged incident of sexual abuse.

Id.   The court also recognized that the magistrate judge who


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presided over the preliminary hearing provided the defendant

with a full opportunity to cross-examine the relevant witness,

specifically noting that there was no evidence of any

“inappropriate restrictions on the scope” of the cross-

examination placed by the judge.          Id.   Accordingly, the court

held that the defendant was permitted to exercise his right to

confrontation: “Therefore, in this instance, because the

discovery was almost entirely complete and the magistrate judge

allowed [the defendant] unrestricted opportunity to confront

[the witness] on all the pertinent issues, we conclude that [the

defendant’s] [c]onfrontation [c]lause rights were not violated

by the admission of [the witness’s] preliminary hearing

testimony at trial.”      Id. at 485-86.

           Similarly, in People v. Torres, the Supreme Court of

Illinois considered several factors in determining that the

defendant did not have an adequate opportunity for cross-

examination of the prosecution’s key witness during the

preliminary hearing.      962 N.E.2d 919, 932-34 (Ill. 2012).

First, the court considered the motive and focus of the

examination at the preliminary hearing, concluding that at both

the hearing and at trial, “the focus of questioning is whether

the evidence supports a finding that the defendant committed the

charged crime.”     Id. at 931.    The court noted, however, that


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“the motive-and-focus test” could not be the “sole guide to a

resolution” of the case.       Id. at 932.

           Thus, the court considered two additional factors:

defense counsel’s knowledge at the time of the cross-

examination, including access to discovery; and the court’s

restrictions on defense counsel’s cross-examination.            Id. at

932-33.   On the issue of defense counsel’s knowledge at the time

of the preliminary hearing, Torres argued that his counsel did

not have an adequate opportunity for cross-examination, because

he did not have access to certain discovery, “namely police

reports,” which contained the prosecution witness’s statements

to police.    Id. at 923.    Defense counsel referenced several

statements the witness made to police that were inconsistent

with his preliminary hearing testimony.          Id.   The court agreed

with Torres on this issue, stating that the defendant “was not

privy to the inconsistent statements [the prosecution’s witness]

gave to police, statements that counsel might have used to

confront [the witness] and see if further changes in [his]

version of events might be forthcoming.”          Id. at 933.     The court

additionally took issue with the trial court’s restrictions on

counsel during the cross-examination, noting that the trial

court had sustained objections to defense counsel’s cross-

examination that inhibited his ability to adequately cross-


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examine the witness.      Id.   Accordingly, the court concluded that

the trial court erred in admitting the preliminary hearing

testimony at trial.      Id.

           We recognize that some jurisdictions have endorsed a

complete ban on the use of preliminary hearing testimony at

trial, while others have been more permissive of the inclusion

of such testimony, based on the nature of the proceedings.              See,

e.g., People v. Fry, 92 P.3d 970, 972 (Colo. 2004) (en banc)

(holding preliminary hearings in Colorado do not provide

adequate opportunity for cross-examination); State v. Lopez, 258

P.3d 458, 463 (N.M. 2011) (holding admission of preliminary

hearing testimony did not violate the sixth amendment where

defendant’s motive during cross-examination was the same as at

trial).   However, guided by our pre-Crawford cases, we adopt the

approach of Chavez and Torres and consider the admissibility of

preliminary hearing testimony at trial on a case-by-case basis.

           Drawing from these cases, in order to determine

whether Nofoa had a sufficient and meaningful opportunity for

cross-examination at the preliminary hearing, we consider the

following factors: 1) the motive and purpose of the cross-

examination, 2) whether any restrictions were placed on Nofoa’s

cross-examination during the preliminary hearing, and 3) whether




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Nofoa had access to sufficient discovery at trial to allow for

effective cross-examination of CW.

           The first two questions weigh in favor of

admissibility.     First, the motive and purpose of Nofoa’s cross-

examination of CW at the preliminary hearing was sufficiently

similar to the motive and purpose Nofoa would have had to cross-

examine CW at trial, i.e., to discredit the State’s case and

accordingly CW’s testimony.       Second, it does not appear that the

court restricted Nofoa’s cross-examination of CW at the

preliminary hearing.      The cross-examination spanned twenty-one

pages of the transcript and the court did not interrupt during

the questioning nor did the State make any objections.

           However, we agree with Nofoa that in relation to the

third factor, he was denied the opportunity for meaningful

cross-examination because he did not have access to relevant

discovery materials that would have assisted in the cross-

examination of CW.     We have recognized that access to witness

statements may be relevant to determine whether the opportunity

for cross-examination at a preliminary hearing was sufficient.

See Toledo, 67 Haw. at 22, 675 P.2d at 775 (“Normally, a cross-

examination cannot be full and thorough unless counsel is

permitted access to the witness’ [sic] previous statements on

the matters on which the witness is testifying . . . .”); see


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also Torres, 962 N.E.2d at 933 (noting defense counsel at the

preliminary hearing was “not privy” to certain statements given

by the witness to support holding that preliminary hearing

testimony was inadmissible at trial).         Here, at the preliminary

hearing, the only materials in Nofoa’s counsel’s possession were

the JDPC and the complaint.       He lacked several of CW’s

statements, including her handwritten HPD-252 statement, a

thirty-two-page recorded interview, and a five-page police

report that included CW’s oral statement.          It also does not

appear that Nofoa’s counsel had access to or knowledge of the

911 call at the time of the preliminary hearing.

           Access to these discovery materials would have enabled

Nofoa’s defense counsel to pose questions relevant to a central

issue of the defense—CW’s credibility—particularly because

there were inconsistencies and/or discrepancies between CW’s

preliminary hearing testimony and her earlier statements.             For

example, at the preliminary hearing, CW testified that Nofoa

used a gun to threaten her.       However, during the 911 call, no

gun is mentioned.     Further, during the preliminary hearing, CW

stated that on the day of the incident, Nofoa called her at work

to ask her if she was seeing another man, to which she responded

it was “none of his business.”        However, in her HPD-252

statement and the thirty-two-page recorded interview, CW stated


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that when Nofoa asked her if she “was with the [g]uy” or “with

another guy,” she answered Nofoa in the affirmative.

           Had Nofoa’s counsel been aware of these discrepancies,

he “might have used [them] to confront [CW] and see if further

changes in [CW’s] version of events might be forthcoming.”

Torres, 962 N.E.2d at 933.       However, because Nofoa only had

access to the JDPC and the complaint, he was unable to engage in

“effective cross-examination,”        Toledo, 67 Haw. at 22, 675 P.2d

at 775, of two critical defense issues: CW’s credibility and his

use of a gun.    In light of the unrebutted fact of CW’s death

improperly admitted during the prosecutor’s rebuttal argument,

the latter issue was of particular importance, as discussed

supra.   In sum, given the lost opportunity to confront CW in

relation to the unavailable discovery, the admission of the

preliminary hearing testimony at trial violated Nofoa’s right to

confrontation as guaranteed by article I, section 14 of the

Hawaii Constitution and the sixth amendment of the United States

Constitution.

           Thus, we hold that the circuit court erred in allowing

admission of CW’s preliminary hearing testimony at trial.             We

additionally hold that the error was not harmless beyond a

reasonable doubt.     See State v. Mundon, 121 Hawaii 339, 368, 219

P.3d 1126, 1155 (2009) (holding constitutional error may be

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harmless if court can “‘declare a belief that it was harmless

beyond a reasonable doubt’” (quoting State v. Napeahi, 57 Haw.

365, 373, 556 P.2d 569, 574 (1976))).         We are unable to say the

error was harmless beyond a reasonable doubt because CW’s

preliminary hearing testimony was a crucial piece of evidence

presented by the State.      It was the only evidence at trial that

mentioned Nofoa’s possession of a gun and accordingly was the

only evidence to support the State’s first degree terroristic

threatening case.8     Although Garcia’s and McNeil’s testimony and

the 911 call provided evidence corroborating some of the

preliminary hearing testimony, we believe there is at least a

reasonable possibility that the preliminary hearing testimony

might have contributed to Nofoa’s conviction.           See Pauline, 100

Hawaii at 378, 60 P.3d at 328.       This is particularly true

because the case involved a credibility determination between CW

and Nofoa, and CW’s preliminary hearing testimony directly

conflicted with Nofoa’s testimony at trial.           Accordingly,

because there is a reasonable possibility that the admission of
      8
            The jury found Nofoa guilty of the lesser included offense of
terroristic threatening in the second degree, which did not require the use
of “a dangerous instrument.” Compare HRS § 707-716(1)(e) (Supp. 2007) (“A
person commits the offense of terroristic threatening in the first degree if
the person commits terroristic threatening . . . [w]ith the use of a
dangerous instrument.”) with HRS § 707-717(1) (2014) (“A person commits the
offense of terroristic threatening in the second degree if the person commits
terroristic threatening other than as provided in section 707-716.”).
            Notwithstanding, the importance that the State placed on the
preliminary hearing testimony is evinced by its decision to charge Nofoa with
the first degree crime.


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the preliminary hearing testimony at trial might have

contributed to Nofoa’s conviction, we remand to the circuit

court for a new trial.9

C.    The 911 Call Was Properly Admitted as a Hearsay Exception
      and Did Not Result in a Confrontation Clause Violation

            With the purpose of providing guidance to the circuit

court and the parties on remand, we address Nofoa’s claim

regarding the admissibility of the 911 call.           See Basham, 132

Hawaii at 112, 319 P.3d at 1120.

            Nofoa contends that the circuit court erred in

admitting the 911 call because 1) it did not qualify under the

excited utterance hearsay exception; and 2) it was testimonial

in nature and not subject to cross-examination, and thus

violated his right to confrontation.10         We disagree.

            Pursuant to HRE Rule 803(b)(2) (1993), “[a] statement

relating to a startling event or condition made while the

      9
             Because we find error in the court’s admission of the preliminary
hearing testimony, we need not reach Nofoa’s argument that the court abused
its discretion in providing a recording of the preliminary hearing testimony
to the jury during deliberations. However, we note that the trial court is
not required to provide all evidence admitted at trial to the jury during
deliberations. See, e.g., State v. Kassebeer, 118 Hawaii 493, 506, 193 P.3d
409, 422 (2008) (reviewing trial court’s decision to allow handgun that was
admitted into evidence into jury room for abuse of discretion).
      10
             We review both questions de novo under the right/wrong standard.
See State v. Moore, 82 Hawaii 202, 217, 921 P.2d 122, 137 (1996) (“[W]here
the admissibility of evidence is determined by application of the hearsay
rule, there can be only one correct result, and ‘the appropriate standard for
appellate review is the right/wrong standard.’” (quoting Kealoha v. County of
Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 675 (1993))); Kalaola, 124 Hawaii at
49, 237 P.3d at 1115 (holding constitutional questions reviewed de novo under
the right/wrong standard).

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declarant was under the stress of excitement caused by the event

or condition” is admissible hearsay.         In State v. Machado, we

explained that to qualify under this hearsay exception (i.e., an

“excited utterance”), “the proponent of the statement must

establish that: (1) a startling event or condition occurred; (2)

the statement was made while the declarant was under the stress

of excitement caused by the event or condition; and (3) the

statement relates to the startling event or condition.”             109

Hawaii 445, 451, 127 P.3d 941, 947 (2006).          Nofoa only disputes

the second requirement, claiming that CW was not in fact “under

the stress of excitement” during the call.          Garcia’s and

McNeil’s testimony at the hearing regarding the 911 call refute

Nofoa’s claim.     Garcia described CW as “hysterical,” “scared,”

and “crying” at the time of the incident and said that CW was

“pissed” when she was on the phone.         Similarly, at the time

McNeil passed the phone to CW so that she could speak to the 911

dispatcher, McNeil described CW’s emotional state as

“hysterical” and “in pain.”       Considered along with the other

circumstances surrounding the 911 call, this testimony

demonstrates that CW’s statement was not the product of

reflective thought and instead constituted an excited utterance.

See State v. Delos Santos, 124 Hawaii 130, 138, 238 P.3d 162,

170 (2010) (citing evidence that complainant was “‘shaken’”

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“‘crying’” and “‘in a lot of pain’” to determine that

complainant’s “mental and physical condition supports the

prosecution’s argument that her statement was an excited

utterance”).

           Nofoa’s claim that the 911 call violated his right to

confrontation is also unavailing.         To be subject to the

confrontation clause analysis discussed above, the out-of-court

statement must be testimonial in nature.          Fields, 115 Hawaii at

516, 168 P.3d at 968.      Statements are considered

“‘nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary

purpose of the interrogation is to enable police assistance to

meet an ongoing emergency.’”       Id. at 514, 168 P.3d at 966

(quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).

Testimonial statements, in contrast, involve circumstances that

“‘objectively indicate that there is no such ongoing emergency,

and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later

criminal prosecution.’”      Id. (quoting Davis, 547 U.S. at 822).

           CW’s statements during the 911 call were

nontestimonial because “any reasonable listener would recognize

that [CW] . . . was facing an ongoing emergency” and the purpose

of the call was to request police assistance.           Davis, 547 U.S.


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at 827.    At the beginning of the 911 call, McNeil told the

operator: “We need a police here for this domestic dispute,

please.”   CW’s statements occurred outside the presence of

police protection and CW was still facing the threat of violence

from Nofoa when the call was placed, as Nofoa had just left the

gas station.    Moreover, the questions asked by the dispatcher,

i.e., the type of car Nofoa was driving, the direction in which

he was heading, and the car’s license plate number, demonstrate

a purpose of finding Nofoa to prevent further harm or stated

otherwise, to “resolve the present emergency, rather than simply

to learn . . . what had happened in the past.”           Davis, 547 U.S.

at 827.

           Because CW’s statements were nontestimonial, the two-

part test from Ohio v. Roberts, 448 U.S. 56 (1980), applies.

See Fields, 115 Hawaii at 516, 168 P.3d at 968 (“We therefore

reaffirm Roberts’ continued viability with respect to

nontestimonial hearsay.”).11       Under Roberts, a nontestimonial

out-of-court statement is admissible if “(1) the declarant is

‘unavailable,’ and (2) the statement bears some indicia of

reliability.”    Fields, 115 Hawaii at 528, 168 P.3d at 980.           As

previously noted, CW’s unavailability is undisputed.            Regarding

     11
            Roberts was abrogated by Crawford but is still applicable in
relation to nontestimonial hearsay. Fields, 115 Hawaii at 516, 168 P.3d at
968.

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the second requirement, CW’s 911 call statements were

sufficiently reliable because they fell “‘within a firmly rooted

hearsay exception,’” as discussed above.          State v. Sua, 92

Hawaii 61, 71, 987 P.2d 959, 969 (1999) (quoting State v. Ortiz,

74 Haw. 343, 361, 845 P.2d 547, 556 (1993)).           Accordingly, the

911 call was admissible.12

                             III. Conclusion

           For the foregoing reasons, the ICA’s March 3, 2014

judgment on appeal and the circuit court’s October 9, 2012

judgment of conviction and sentence are vacated.            This case is

remanded to the circuit court for a new trial.


Craig W. Jerome and                /s/ Mark E. Recktenwald
Susan L. Arnett
for petitioner                     /s/ Paula A. Nakayama

Sonja P. McCullen                  /s/ Sabrina S. McKenna
for respondent
                                   /s/ Richard W. Pollack

                                   /s/ Michael D. Wilson




     12
            We also agree with the ICA that “Nofoa fails to prove that
portions of the 911 call were inadmissible on other grounds.” Nofoa, SDO at
*3.

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