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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              29-OCT-2019
                                                              09:22 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

                                    vs.

       KEITH T. MATSUMOTO, Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 12-1-0918)

                            OCTOBER 29, 2019

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

                OPINION OF THE COURT BY POLLACK, J.

          The defendant in this case confessed to a crime after

an interrogating officer informed him, untruthfully, that he did

not pass a polygraph test.      Our case law has established that

deliberate falsehoods extrinsic to the facts of the alleged

offense, which are of a type reasonably likely to procure an
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untrue statement or to influence an accused to make a confession

regardless of guilt, will be regarded as coercive per se.

            The trial court in this case determined that

defendant’s confession was voluntarily made and admitted it into

evidence over defense objection.         The court also ruled that the

defendant during his trial testimony, when discussing the

circumstances of his confession, could not mention the word

“polygraph,” the word “test,” or that the interrogating officer

gave him inaccurate test results before his confession was

elicited.

       In this appeal, we consider whether a deliberate

falsehood regarding polygraph results impermissibly taints a

confession.    We also address whether the court-imposed

limitations on defendant’s testimony violated his constitutional

rights to present a defense and to confront witnesses.            Lastly,

we determine the propriety of the court’s instruction to the

jury that defined an element of the charged offense.

            Based upon our review, we conclude that the circuit

court erred in its rulings on these three issues and accordingly

vacate the defendant’s conviction and remand the case for

further proceedings consistent with this opinion.




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             I. BACKGROUND AND CIRCUIT COURT PROCEEDINGS

             Keith T. Matsumoto was arrested at a wrestling

tournament at Farrington High School (Farrington HS) on the

island of Oahu on June 9, 2012, based upon allegations that he

committed a sexual offense during the tournament.             Matsumoto was

subsequently indicted in the Circuit Court of the First Circuit

(circuit court) for sexual assault in the third degree in

violation of Hawaii Revised Statutes (HRS) § 707-732(1)(c).1

                          A. Motion to Suppress

          Matsumoto moved to suppress statements that he made

during and after a polygraph examination conducted while he was

in police custody on June 10, 2012, as well as any other item of

evidence recovered by the Honolulu Police Department (HPD) after

that date.


     1
          HRS § 707-732 (2009) provides as follows:

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

                 . . .

                 (c) The person knowingly engages in sexual contact
                 with a person who is at least fourteen years old but
                 less than sixteen years old or causes the minor to
                 have sexual contact with the person; provided that:

                         (i) The person is not less than five years
                         older than the minor; and

                         (ii) The person is not legally married to the
                         minor.




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           A hearing on the motion was held at which Matsumoto,

Detective (Det.) Allan Kuaana, and Det. Kim McCumsey testified

about the events surrounding a series of custodial

interrogations that took place following Matsumoto’s arrest.2

           Matsumoto testified that he was the State Coordinator

for Wrestling for the Hawai‘i High School Athletic Association,

that his daughter was a wrestler, and that he had gone to

Farrington HS with his daughter on June 9, 2012, to volunteer

for a wrestling tournament.       Matsumoto stated that at about

12:30 p.m. he was asked to step outside, where police officers

placed him under arrest.       He was taken to the HPD main station,

he testified, where he was booked and held in custody.             At

approximately 8:30 p.m. that evening, Det. McCumsey removed him

from his cell and took him to an interview room.            Matsumoto

stated that Det. McCumsey, after going over a waiver of rights

form with him, proceeded to interview him about the events of

that morning, told him he would have to take a polygraph test,3

and then returned him to his cell.




     2
            The Honorable Randal K.O. Lee presided over all circuit court
proceedings referenced in this opinion.
     3
            During her testimony, Det. McCumsey testified that Matsumoto had
agreed to take a polygraph test on his own volition when she asked if he was
willing to submit to the test.




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           The next morning Det. McCumsey escorted Matsumoto to a

polygraph room, he testified, where she introduced him to Det.

Kuaana before leaving the room.4          Det. Kuaana gave Matsumoto a

polygraph waiver form, Matsumoto stated, that indicated

Matsumoto would be provided with the results of the polygraph

immediately following the conclusion of the examination.             Det.

Kuaana then put electrodes on Matsumoto and hooked him up to the

polygraph machine, he testified.          Det. Kuaana asked a series of

questions, unrelated to the events resulting in Matsumoto’s

arrest, to calibrate the polygraph.          Among other things, Det.

Kuaana asked Matsumoto about his divorce and told Matsumoto to

say he was holding a $5 bill when he was holding a $20 bill.

Det. Kuaana then showed Matsumoto the results, Matsumoto stated,

pointing out where the machine indicated Matsumoto was

untruthful.

           Matsumoto testified that Det. Kuaana then interviewed

him regarding the events of the previous day.           Matsumoto stated

     4
            Matsumoto testified that while being held at the HPD main
station, he was placed in a concrete cell without an adequate blanket to
shield against the cold temperature, which aggravated an existing spinal
injury for which he had previously had surgery. He further stated that he
had eaten very little, had not slept much, and had become dehydrated because
it was difficult to drink from the fountain in his cell, which caused his
contact lenses to dry out and scratch his cornea. Matsumoto testified that
he informed Det. Kuaana of his physical state prior to taking the polygraph
examination. Detectives McCumsey and Kuaana testified that Matsumoto
appeared well-rested and did not seem to be in any extreme pain or
discomfort.




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that, upon completion of the test, Det. Kuaana removed the

electrodes and told Matsumoto that he did not pass the polygraph

test.   Det. Kuaana never used the term “inconclusive,” Matsumoto

testified, and he did not show Matsumoto the test results.

          According to Matsumoto, Det. Kuaana continued to

interrogate him and refused to accept his answers, stating that

“there had to have been more on the basis that [Matsumoto] had

failed the polygraph [test].”       Matsumoto testified that Det.

Kuaana told him that he needed to make another statement, and

then told Det. McCumsey upon her return that Matsumoto wished to

speak with her.

          Following the conclusion of Matsumoto’s testimony,

Det. McCumsey testified.      Det. McCumsey stated that she

initially asked Matsumoto if he would be willing to take a

polygraph test because she offers every suspect who denies

committing a crime the opportunity to take an examination.             She

testified that she believed Det. Kuaana told her that the

results of Matsumoto’s polygraph test were inconclusive when she

returned to the polygraph room after the test had concluded.

Det. McCumsey stated that, following the polygraph examination,

she brought Matsumoto to an interview room, obtained a waiver of

his Miranda rights, and interrogated him a second time.




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          Det. Kuaana testified that there are three phases to a

polygraph examination: the pre-test, the in-test, and the post-

test--the last of which includes further interrogation “if

someone doesn’t pass an exam or fails an exam.”          Before giving

Matsumoto constitutional warnings, Det. Kuaana stated, he

explained the three phases to Matsumoto and said that he would

give him the results of the examination during the post-test

phase.   He did not tell Matsumoto that the post-test phase could

include further interrogation.

          Det. Kuaana testified that during the pre-test phase

he discussed with Matsumoto the difference between truth and

lies, the test questions, and the allegations against him.             The

detective stated that, during this phase, he interacted with

Matsumoto as though he believed Matsumoto was innocent and that

it was his job to assist him in getting through the process.

Det. Kuaana testified that he also explained to Matsumoto during

the pre-test phase how a polygraph works, informing him that it

“is a pass/fail test, either you pass or you don’t.”

          After conducting a practice test, Det. Kuaana

testified, he moved on to the in-test phase.          He testified that

he asked Matsumoto a series of questions regarding the

allegations against him and determined that the results of the

polygraph test were “inconclusive,” meaning that Matsumoto’s



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“score” was “right in the middle” and did not fall within the

range needed to pass or to fail the examination.            Det. Kuaana

testified that he nonetheless told Matsumoto that he “did not

pass the test.”     He did not tell Matsumoto that the test was

inconclusive, but he testified that he believed his statement

was accurate because “for the sake of the polygraph, an

inconclusive result is not passing.”

           Det. Kuaana stated that he then moved to the post-test

phase, in which he began to ask accusatory questions and told

Matsumoto that he knew Matsumoto was not telling him the truth.

He explained that he intentionally shifted his attitude during

this post-test phase as “an interrogation tactic”:

           When I go into the post-test phase, obviously I have
           results from my polygraph; he didn’t pass. I know there’s
           some other things about the case, so then it becomes more
           accusatory. I become more confident in my accusations.
           It’s no longer about whether or not you’ve done it; we know
           you did it. It’s just a question of why did you do it.

Det. Kuaana testified that throughout the polygraph test,

Matsumoto appeared to be in “disbelief” and was calm in a way

that indicated that Matsumoto could not believe he was in the

position that he was in.       The State rested following the

conclusion of Det. Kuaana’s testimony.5



     5
            Det. Kuaana’s Polygraph Examination Report was accepted into
evidence at the hearing. In the post-test section of the report, Det. Kuaana
wrote that he “explained the importance to tell the truth so that whenever a

                                                             (continued . . .)


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            Matsumoto argued that because the results of a

polygraph test are inadmissible at trial under Hawaiʻi caselaw,

he would be unable to explain the basis and context of the

statements he made during the in-test and post-test phases of

the polygraph examination, and accordingly these statements

should be inadmissible.       Matsumoto also argued that his

statements during the post-test phase should be suppressed

because they were the result of Det. Kuaana intentionally

leading him to falsely believe that he had failed the polygraph

examination, which is an issue extrinsic to the facts of the

case, and his statements were thus per se coerced and

inadmissible under Hawai‘i law.6

            In response, the State argued that, although results

of a polygraph test are inadmissible, the omission of the

circumstances surrounding Matsumoto’s statements should not

render the statements inadmissible because they were supported

by valid waivers of Matsumoto’s constitutional rights.


(. . . continued)

‘reasonable person’ were to review the facts of the case, that person would
be able to understand the subject account of the incident.”
      6
            Matsumoto also contended that Det. Kuaana’s cautionary advisory
to him of what a “reasonable person” would be able to understand from the
facts of the case, in addition to other circumstances that Matsumoto asserted
amounted to a promise of leniency, resulted in his statements not having been
knowingly, intelligently, and voluntarily given.




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Matsumoto’s statements, the State contended, were not obtained

through coercion or trickery.        According to the State, Det.

Kuaana did not lie when he told Matsumoto that he did not pass

the polygraph examination because the results were inconclusive

and did not indicate that Matsumoto had passed.7

           The circuit court orally denied the motion to suppress

at the conclusion of the hearing and later issued findings of

fact and conclusions of law.        The court concluded that, while

the results of the polygraph examination were inadmissible at

trial, the post-polygraph interview was distinguishable from the

polygraph test results, and the statements made during the post-

polygraph interview were therefore admissible.           The court

further found that Det. Kuaana’s statement that Matsumoto did

not pass the polygraph test was not a falsehood because it was

technically true that Matsumoto did not obtain a passing result.

And, even assuming the statement could be considered to be

deceptive, the court continued, it would not be a falsehood

extrinsic to the facts of the alleged offense that would be

reasonably likely to procure an untrue statement.            Matsumoto



      7
            The State also contended that Det. Kuaana’s advice that it would
be better for Matsumoto to tell the truth was not deceptive or coercive and
was calculated to enhance the trustworthiness of any subsequent statement by
Matsumoto. The State thus argued that Matsumoto’s waiver of his
constitutional rights was knowing, intelligent, and voluntary.




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“could have insisted that the test was wrong and that he had

been telling the truth,” the court stated.          The court thus ruled

all of Matsumoto’s statements were admissible.8

        B. Prohibition Against Mentioning Polygraph at Trial

            Prior to trial, Matsumoto filed a motion in limine

regarding the statements he made following the polygraph

examination.    At the hearing, Matsumoto again argued that Det.

Kuaana’s statement to him that he did not pass the polygraph

test was a “material misrepresentation.”          Matsumoto argued that

the fact that he took a polygraph examination should be

admissible, as should the fact that he was told that he did not

pass.    Otherwise, Matsumoto argued, the jury would not know the

context in which the statements were made, including that his

statements were motivated by his false belief that he had failed

the polygraph examination.

            The circuit court ruled that there was to be no

mention of the word “polygraph” or the word “test.”            The court

further ruled that Det. Kuaana would only be allowed to testify

that he made a statement to Matsumoto that was not “totally



      8
            The court did not independently address Det. Kuaana’s advice to
Matsumoto that it was important to tell the truth so that a reasonable person
could follow his account or Matsumoto’s testimony that Det. Kuaana’s promised
him leniency if he confessed, but it ruled that Matsumoto’s statements were
intelligently, knowingly, and voluntarily made without police coercion.




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true.”   The parties were also not permitted to say to the jury

that the statement was a material misrepresentation, the court

held.

                                 C. Trial

            Trial commenced on January 17, 2014, and included the

following testimony.      The complaining witness (CW) testified

that, on the day of the tournament at Farrington HS, Matsumoto

touched her two times in ways that made her feel uncomfortable.9

The first time occurred when she was getting pre-match

paperwork.    Matsumoto bumped into her and his hand slid across

her buttocks, she stated.       The CW testified that there were many

people in the area and she believed at the time that it was an

accident.

            The second time took place while the CW was coaching

one of her friends, she stated.        The CW testified that she

remembered Matsumoto walking up behind her and talking to her

“about wrestling stuff” as he massaged her shoulders and touched

her stomach.    When the CW tried to leave, she testified,

Matsumoto slapped and grabbed her buttocks with both hands.                 The

CW said that, after Matsumoto touched her this second time, she

went straight to her father to tell him what happened because

     9
            The CW described these incidents as a touch, a slap, a slide, or
a grab of her buttocks.




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she felt uncomfortable.       The CW testified that the touch was not

to congratulate her for anything.

           William Ullom, who was a volunteer wrestling coach at

Radford High School and was familiar with the complainant

through his experience in the wrestling community, testified for

the State.10    Ullom stated that he saw Matsumoto “inappropriately

touch[]” the CW by grabbing her buttocks and moving his hands to

her groin and down the sides of her back.          The CW reacted by

getting up immediately, acting distraught, and leaving, Ullom

testified.     According to Ullom, as part of his mandatory

reporting obligations as a coach, he insisted the police be

called.

           Det. Kuaana testified that his post-polygraph

interrogation of Matsumoto lasted three and a half hours.11

During the first part of his interrogation, Det. Kuaana

testified that he attempted to develop a rapport with Matsumoto

to get him to relax and communicate, and that he then asked


     10
            Ullom was also familiar with Matsumoto from two interactions at
previous wrestling tournaments. In the first incident, a student wrestler
did not have a doctor’s note allowing him to participate in a match; Ullom
attempted to have a tournament doctor clear the student to participate, but
Matsumoto opposed this effort as it was against the tournament rules. In the
second incident, one of Ullom’s students was initially prevented from
participating for failure to weigh in but was eventually allowed to compete.
     11
            The interrogation was not recorded, but Det. Kuaana testified
that he took notes of what was said.




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Matsumoto for the facts of the case as Matsumoto understood them

to be.    Matsumoto stated that he did not touch the CW’s butt in

any way.

           Det. Kuaana testified that he then switched to a

“direct confrontation technique” in which he “exud[ed]

confidence” in the fact that the person he was interrogating

committed an offense.      Det. Kuaana acknowledged that during the

interrogation he provided some information to Matsumoto that was

“not completely accurate” but explained that interrogators are

permitted to use deception within guidelines set by case

precedent.    Det. Kuaana indicated that his goal was to get

Matsumoto to admit that he had grabbed the CW’s buttocks, if

Matsumoto had done so.      Det. Kuaana testified that, although he

knew there were inconsistencies in the police reports, he told

Matsumoto that he had solid evidence and that based on what he

had seen and what he knew, there was no doubt that the

allegations against him were true.12

           Det. Kuaana then showed Matsumoto a diagram of the

gym, and he pointed out where Matsumoto was when the touching

     12
            Det. Kuaana also used an “alternative question” technique in
which he said to Matsumoto: “Okay, look you know, there’s no doubt that you
touched her, but what I want to know is did you touch her just one time or
more than once?” According to Det. Kuaana, that question had “three possible
answers: more than once, just once, or never.” Det. Kuaana testified that
Matsumoto answered that he had only touched the CW once and was dejected
after saying so.




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occurred.    Matsumoto said that the CW was crouched down and he

had patted and grabbed her buttocks.

            Det. McCumsey testified that she observed and listened

to Det. Kuaana’s post-polygraph interrogation of Matsumoto

through a viewing window.       According to Det. McCumsey, by the

end of Det. Kuaana’s interrogation, Matsumoto admitted to

“grabbing” the CW’s buttocks while she was bent over by the

wrestling mat watching one of her friends.          Det. McCumsey stated

that, following Det. Kuaana’s interrogation and with Matsumoto

present, Det. Kuaana told her what Matsumoto said in the

interrogation as if she had not heard it before.            Det. McCumsey

testified that Matsumoto agreed to submit to a second

interrogation by her.13

            During Det. McCumsey’s testimony concerning her

interrogations of Matsumoto, two video recordings of those

interrogations were played for the jury.14          In the second

     13
            The substance of these recordings was consistent with Det.
McCumsey’s testimony at trial.
     14
            These videos had been edited to remove matters the court had
ruled were inadmissible. Before the recording of the first interrogation was
played, Matsumoto objected to giving the jury redacted transcripts of these
videos. The deleted text was replaced by large black lines varying in size
from several lines, with some lines covering nearly a full page. Matsumoto
argued that the large number of redactions were prejudicial because the jury
would speculate as to the substance of the redacted words, and he requested
that the jurors just watch the videos and not be provided with the
transcripts. The court overruled Matsumoto’s objection, allowed the jury to
use the redacted transcripts, and instructed the jurors not to speculate
regarding the redacted content.




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interrogation, Det. McCumsey testified, Matsumoto made

statements about not remembering how any touching could have

happened but said that he must have touched the CW.           Det.

McCumsey stated that when she tried to “lock [Matsumoto] in” to

get him to “commit to something[,]” regarding touching the CW,

Matsumoto responded, “I’m not gonna say I didn’t.           But if

anything, I would characterize it as a ‘good job’ slap.”              After

Matsumoto later said that it might have been a “‘good job’ pat

on the butt,” Det. McCumsey stated, she asked if the reason that

Matsumoto touched the CW that way was because it was a moment of

“bad judgment,” and Matsumoto said it was “weakness.”            Det.

McCumsey testified that Matsumoto also agreed that he grabbed

the CW’s buttocks “because the opportunity was there.”            In the

interrogation, according to Det. McCumsey, Matsumoto

demonstrated a slapping-type motion, not a grabbing motion.

          Following the State’s last witness, Matsumoto made a

motion for a judgment of acquittal.        The court denied the motion

and Matsumoto proceeded with his case.

          Darren Reyes, head coach for the Farrington HS

wrestling team, was the site director and host for the

tournament where the alleged incident took place.           During the

tournament, Reyes coached the CW on a wrestling move.            He

testified that the CW never told him that she had been



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inappropriately touched by Matsumoto and that she appeared

“jolly” and “cheerful” subsequent to the match when the alleged

touching occurred.

            Corey Taniguchi, a volunteer coach at the wrestling

tournament, testified that he was standing near the CW during

the second alleged touching.        He testified that he saw nothing

unusual during the match.       R.G., a student from Waipahu High

School, refereed the match when the second alleged incident

occurred.    He testified that he did not see Matsumoto touch the

CW at any time.

            Matsumoto testified on his own behalf.          He indicated

that he was the technical director for the Hawai‘i Technology

Development Venture, a federal program that develops the

technology industry in Hawaiʻi.        Matsumoto stated that he

wrestled in high school and in college and had been coaching

since 1979.15    At the time of the tournament, Matsumoto said that

he was a certified USA wrestling coach and was involved in




     15
            Matsumoto also testified to previous incidents with Ullom, which
Matsumoto portrayed as negative. Matsumoto stated that he blocked Ullom’s
student from participating in a tournament for failing to have a doctor’s
note. According to Matsumoto, Ullom reacted poorly to this decision.
Additionally, Matsumoto testified that, at a separate tournament, he was
required to block a student from wrestling for failing to weigh in. He was
forced to ask Ullom to leave the coach’s table, Matsumoto related, due to
Ullom’s disruptive reaction to his decision.




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running wrestling tournaments and managing the state wrestling

weight monitoring program.

            Matsumoto testified that he arrived at the tournament

around 10:30 a.m.     He explained that one of his two daughters

was a wrestler at the tournament.         According to Matsumoto, the

first time he saw the CW was at the scoring table; she was

standing next to one of Matsumoto’s daughters and other female

wrestlers.    Matsumoto stated that he just said “hi” to the CW

but did not want to bother her because she was “running the

clock” for a match.

            Matsumoto testified that, during the first alleged

touching, he was focused on coaching, did not interact with the

CW, and did not have any physical contact with the CW.

Regarding the second alleged incident, Matsumoto admitted making

contact with CW’s buttocks but stated that it was a “good job

pat on the butt and not a grab as alleged.”

            According to Matsumoto, Det. Kuaana suggested that, if

he gave the police something, apologized, and quit coaching, the

case might not proceed.16      Based upon Det. Kuaana telling him

about the strength of the case and providing him with

     16
            Matsumoto also testified that Det. Kuaana told him that if he did
not tell the police what he did, he would spend another night in the cell
block, but that if he admitted something, they could try “to work something
out.”




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“misleading or inaccurate information,” Matsumoto testified, he

began to doubt his memory.       Matsumoto stated that he never told

Det. Kuaana that he grabbed the CW’s buttocks, but acknowledged

that it was possible that he may have touched the CW.             Matsumoto

testified that he found out later that Det. Kuaana gave him

information that was not completely accurate and that there was

“no doubt” that the information was not completely accurate.

           During the third interrogation, Matsumoto testified,

he told Det. McCumsey that he could not recall touching the CW’s

butt but gave various examples of how it could have occurred.

                    1. Jury Instructions and Verdict

           During the settlement of the jury instructions, the

circuit court considered its proposed supplemental jury

instruction 2 to define “sexual contact”17:

                 “Sexual contact” means any touching, other than acts
           of “sexual penetration,” of the sexual or other intimate
           parts of a person not married to the actor, or of the
           sexual or other intimate parts of the actor by the person,
           whether directly or through the clothing or other material
           intended to cover the sexual or other intimate parts.

                 “Sexual parts” means the sex organs.

                 “Intimate parts” means the buttocks and those parts
           of the body typically associated with sexual relations.

                 In considering whether the part of the body touched
           is a “sexual or other intimate part,” you must consider the
           context in which the touching occurred.


     17
            Sexual assault in the third degree, HRS § 707-732(1)(c), requires
proof of sexual contact. See supra note 1.




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(Emphases added.)

            Matsumoto argued that case law had limited

consideration of “context” to the circumstances underlying

the incident at issue and that context must exclude

subsequent conduct in a different setting.          Accordingly, he

proposed his own instruction as to the applicable law.18

Matsumoto contended that it was “critical for the jury to

understand that not any touching of the buttocks is

automatically sexual contact” as the instruction indicated.

            The court during the conference with counsel

provided the parties with a modified supplemental jury

instruction 2, which proposed substituting a single word.19

Matsumoto also objected to this instruction, maintaining

that he still requested his proposed instruction 3 because

it more accurately reflected the statement in State v.

     18
            Matsumoto’s proposed instruction 3 reads as follows:

     In determining whether an alleged touching of [the CW’s] “sexual or
     other intimate parts” occurred, you must consider the context in which
     the alleged touching occurred. A body part which might be a “sexual or
     other intimate part” in one context might not be in another context.
     “Sexual parts” refers to the sex organs. “Intimate parts” refers to
     those parts of the body typically associated with sexual relations.
     The “context” refers only to the particular situation in which the
     alleged touching occurred. In evaluating the “context” in which the
     alleged touching occurred, you must only consider the circumstances of
     the particular incident, not the circumstances that occurred in prior
     or subsequent incidents.
     19
            The court modified supplemental instruction 2 to replace the word
“touching” in the last paragraph with “contact.”




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Silver, 125 Hawaii 1, 249 P.3d 1141 (2011), that “a body

part which might be a sexual or other intimate part in one

context might not be in another.”         The court refused

Matsumoto’s proposed instruction 3 and submitted, over

defense objection, its supplemental jury instructions 2 to

the jury.

            The jury found Matsumoto guilty as charged.           Matsumoto

was sentenced to five years of probation, which included a jail

term of six months as a condition.         Matsumoto appealed from the

judgment of conviction and probation sentence to the

Intermediate Court of Appeals (ICA).

                          II. ICA PROCEEDINGS

            The ICA in its summary disposition order (SDO),20 first

addressed the voluntariness of Matsumoto’s statements.             The ICA

held that Det. Kuaana’s statement that Matsumoto did not pass

the polygraph test was not a deliberate falsehood because

“strictly speaking” Matsumoto “did not score well enough to

‘pass’ nor did he score well enough to fail.”           The ICA also

concluded that the challenged statements of Det. Kuaana

regarding the polygraph test results were intrinsic to the



     20
            The ICA’s SDO can be found at State v. Matsumoto, No. CAAP-14-
0000933, 2017 WL 3720456 (Aug. 29, 2017).




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charge because they related to the strength of the evidence

against Matsumoto and thus were not coercive per se.

           Next, the ICA analyzed the totality of the

circumstances surrounding Matsumoto’s post-polygraph statements

and held that Matsumoto’s post-polygraph statements were

voluntary.    The ICA determined that it was “far from clear that

hearing he did not pass the polygraph exam caused Matsumoto to

make his post-polygraph statements.”         In addition, the ICA

pointed to the detectives’ descriptions of Matsumoto as not

appearing physically impaired and Matsumoto’s level of education

as supporting the determination of Matsumoto’s post-polygraph

statement as voluntary.21

           The ICA then addressed the circuit court’s exclusion

of evidence that Matsumoto’s post-polygraph statements were

induced by Det. Kuaana’s representation that Matsumoto did not

pass the polygraph test.       The ICA concluded that “Hawaiʻi case

law does not provide for an exception to the prohibition against

polygraph results,” and Det. Kuaana’s assessment of the

polygraph results and his statements to Matsumoto were therefore

properly excluded.



     21
            The ICA did not address Matsumoto’s argument that his confession
was induced by Det. Kuaana’s implied promise of leniency.




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            As to the court’s instruction on “intimate parts,” the

ICA concluded that the jury instructions adequately conveyed the

need to consider the context in which a body part was touched as

required by State v. Silver.        Matsumoto’s argument, the ICA

stated, “hinges on the supposition that the jury followed the

[“intimate parts” of the instruction] but ignored the [“context

part of the instruction”] and fails to provide any evidence in

support of this assumption.”        Without such evidence, the ICA

held that Matsumoto could not overcome the presumption that a

jury generally follows court instructions and did so in this

case.

            Lastly, as to the sufficiency of the evidence, the ICA

noted that both the CW and Ullom “testified that the touching

was more than a swat on the buttocks but consisted of squeezing

and moving his hands to the front of [the CW’s] body.”             Viewing

the testimony of the CW and Ullom in the strongest light for the

prosecution, the ICA held that there was substantial evidence

such that a reasonable juror could have found Matsumoto guilty.22

            The ICA thus affirmed the circuit court’s judgment of

conviction and probation sentence.         Matsumoto timely filed an

application for writ of certiorari, which this court accepted.

     22
            The ICA also rejected Matsumoto’s argument regarding the
prejudicial presentation of the redacted transcripts.




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                      III. STANDARDS OF REVIEW

                        A. Conclusions of Law

          Conclusions of law are reviewed de novo, under the

right/wrong standard of review.       Maria v. Freitas, 73 Haw. 266,

270, 832 P.2d 259, 262 (1992).

                  B. Voluntariness of a Statement

          The admissibility of a confession or an inculpatory

statement, that is “whether the confession or inculpatory

statement was voluntarily given,” is a “purely legal question”

decided by the trial court by “assess[ing] the manner in which a

confession or inculpatory statement [was] extracted.”            State v.

Kelekolio, 74 Haw. 479, 518, 849 P.2d 58, 76 (1993).

                         C. Jury Instructions

          The propriety of jury instructions is a question of

law reviewed de novo using the following standard: whether,

“when read and considered as a whole, the instructions given are

prejudicially insufficient, erroneous, inconsistent, or

misleading.”   State v. Bovee, 139 Hawaii 530, 537, 394 P.3d 760,

767 (2017) (quoting State v. Frisbee, 114 Hawaii 76, 79, 156

P.3d 1182, 1185 (2007)).

                     D. Sufficiency of Evidence

          A jury verdict must be upheld if there is substantial

evidence to support the conclusion of the trier of fact.



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“‘Substantial evidence’ as to every material element of the

offense charged is credible evidence which is of sufficient

quality and probative value to enable a [person] of reasonable

caution” to reach a conclusion.       State v. Batson, 73 Haw. 236,

248-49, 831 P.2d 924, 931 (1992).        Such evidence is viewed in

the light most favorable to the prosecution.          Id.

                            IV. DISCUSSION

                  A. Voluntariness of Statements

          “The 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. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58,

69 (1993) (citing State v. Wakinekona, 53 Haw. 574, 576, 499

P.2d 678, 680 (1972)).     The reasons for barring coerced

admissions 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.   (citing

Wakinekona, 53 Haw. at 576, 499 P.2d at 680).

          A police officer’s use of subterfuge to induce a

suspect to make an incriminating statement may rise to the level

of coercion, rendering the statement involuntary, untrustworthy,




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and inadmissible.       See id. at 508-09, 849 P.2d 72.         When

measuring “the legitimacy of the use of ‘deception’ by the

police in eliciting confessions or inculpatory statements from

suspects and arrestees,” Hawai‘i courts evaluate the use of

falsehoods regarding information intrinsic to the case

differently from deception that is extrinsic to the facts of the

alleged offense.       Id. at 511, 849 P.2d at 73.        When the police

use “deliberate falsehoods extrinsic to the facts of the alleged

offense, which are of a type reasonably likely to procure an

untrue statement or to influence an accused to make a confession

regardless of guilt, [they] will be regarded as coercive per

se.”    Id. (emphasis omitted).

             Examples of extrinsic falsehoods include assurances of

divine salvation upon confession; promises of mental health

treatment in exchange for a confession; assurances of treatment

in a “nice hospital” in lieu of incarceration, in exchange for a

confession; promises of more favorable treatment in the event of

a confession; and misrepresentations of legal principles, such

as misrepresenting the consequences of a “habitual offender”

conviction and holding out that the defendant’s confession

cannot be used against the defendant at trial.             Id. at 512–13,

849 P.2d at 73–74.




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          When the police use “deliberate falsehoods intrinsic

to the facts of the alleged offense in question[, they] will be

treated as one of the totality of circumstances surrounding the

confession or statement to be considered in assessing its

voluntariness.”    Id. at 511, 849 P.2d at 73.        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 argues that, because Det. Kuaana employed an

extrinsic falsehood to induce him to make incriminating

statements, the circuit court should have concluded that his

post-polygraph interviews were the result of coercion.

              1. Deception as to the Polygraph Results

a. Det. Kuaana’s statement to Matsumoto that he did not pass the
               polygraph was an objective falsehood

          Matsumoto contends that Det. Kuaana telling him that

he did not pass the polygraph test was a falsehood that should

have led the circuit court to preclude his statements at trial.

The circuit court concluded, and the ICA agreed, that telling

Matsumoto that he did not pass the polygraph test was not a

falsehood, and even if it were, the falsehood was intrinsic to

the offense and therefore his confession was admissible.




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          Det. Kuaana told Matsumoto that a polygraph

examination is “a pass/fail test, either you pass or you don’t.”

This was an incorrect and misleading characterization of a

polygraph test, Det. Kuaana admitted, as the results may be

inconclusive.   Det. Kuaana acknowledged that there was a third

possible outcome by explaining that Matsumoto did not score well

enough to pass, nor “well enough to fail”; Matsumoto was “right

in the middle.”    Despite previously explaining to Matsumoto that

he would receive the results of the polygraph test, Det. Kuaana

never disclosed to Matsumoto that his test results were

inconclusive.

          Det. Kuaana’s statement that Matsumoto did not pass

the polygraph test, taken in conjunction with the earlier

misstatement that a polygraph test could only be passed or

failed, necessarily implied that Matsumoto had failed the

polygraph examination, which was objectively false.           Det. Kuaana

then reinforced this false impression by “confident[ly]” telling

Matsumoto that he was not telling the truth, which Det. Kuaana

described as “an interrogation tactic” to inform Matsumoto that

he had obtained objective proof from the polygraph test that

Matsumoto was lying.     Matsumoto would thus have logically

concluded that Det. Kuaana was communicating the results that he

was promised and which represented the entirety of the



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information gleaned from the polygraph test.          Det. Kuaana never

corrected this impression by fulfilling his pledge to disclose

the actual results of the polygraph examination--that the test

results were inconclusive.

          Taken in context, Det. Kuaana’s statements to

Matsumoto amounted to an objective falsehood.          And, in light of

Det. Kuaana’s testimony that he was “allowed to use deception”

within “strict guidelines” and was acting “within these

guidelines” when he made the inaccurate statements to Matsumoto,

they were deliberate falsehoods.         Thus, Det. Kuaana used

deliberate deception when interrogating Matsumoto.

b. Det. Kuaana’s deliberate falsehood was an extrinsic falsehood
                      that was coercive per se

          As stated, a deliberate falsehood will be regarded as

coercive per se if the falsehood 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.       Kelekolio, 74 Haw. at 511, 849

P.2d at 73.   A deception of this nature obviates the need for a

“totality of circumstances” analysis of the voluntariness of the

statement by the court in order to determine admissibility.                Id.

          The deliberate falsehood in this case was Det.

Kuaana’s statements regarding the results of Matsumoto’s

polygraph test.    This falsehood was not a lie by the officer


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about any “facts of the alleged offense.”          It was not, for

example, a falsehood about the existence of bystanders to the

crime, of witnesses coming to the station to give a statement,

or the discovery of a weapon used to commit the offense.

Instead of being a lie about the facts of the offense, it was a

lie about the test results of a scientific instrument that was

avowed to accurately determine whether the subject of the test

was telling the truth.23      But lying about the results of a

scientific test is unequivocally not a lie about the facts of

the offense, and the falsehood in this case was thus extrinsic

to the facts of the alleged offense.

            Additionally, to be coercive per se, the deliberate

falsehood also must be of a type that is reasonably likely to

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

confession regardless of guilt.        In addressing this factor, we

consider the nature of the polygraph test itself and the effects

of its results on the examinee.

            The polygraph is a scientific instrument that purports

to accurately determine whether the subject of the test is

telling the truth.      See United States v. Scheffer, 523 U.S. 303,

313 (1998) (“The common form of polygraph test measures a

     23
            During Matsumoto’s test, the polygraph indicated that Matsumoto
lied about having $20 in his hand, emphatically external to the fact.




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variety of physiological responses to a set of questions asked

by the examiner, who then interprets these physiological

correlates of anxiety and offers an opinion . . . about whether

. . . the accused--was deceptive in answering questions.”).                An

examinee who has not lied does not expect to be given falsified

polygraph test results from the police.         It is thus not

surprising that the presentation of falsified results may have

serious and substantial effects on a suspect.          “[E]xperiments

have shown that . . . counterfeit test results . . . can

substantially alter subjects’ . . . beliefs, perceptions of

other people, behaviors toward other people, emotional states, .

. . self-assessments, [and] memories for observed and

experienced events.”     Saul M. Kassin et. al, Police-Induced

Confessions: Risk Factors and Recommendations, 34 L. & Hum.

Behav. 3, 17 (2010) (citing studies that have tracked the

effects of counterfeit test results, along with other deceptive

tactics) (internal citations omitted).

          Falsified polygraph results may pressure a suspect

into changing the suspect’s pre-test narrative.          This pressure

is intensified when an officer expresses confidence that the

suspect is lying and is aggressive in pushing the suspect to

confess on the basis of the officer’s pre-formed belief of the




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suspect’s guilt.24    Richard A. Leo & Richard J. Ofshe, The Truth

About False Confessions and Advocacy Scholarship, 37 Crim. L.

Bull. 293, 293-370 (2001).      Falsified polygraph results are

geared towards making the suspect believe in one’s own guilt or

believing that the officer will not stop the interrogation until

the suspect confesses guilt.      See Klara Stephens, Misconduct and

Bad Practices in False Confessions: Interrogations in the

Context of Exonerations, 11 Ne. U. L. Rev. 593, 596 (2019)

(finding that false polygraph results are “bad practices” that

produce both true and false confessions).

          Once a suspect believes that a confession of guilt is

inevitable, the individual is cognitively geared to accept,

comply with, and even approve of that outcome.          Kassin et. al.,

supra, at 17, (citing Elliot Aronson, The Social Animal (1999))

(exploring how human beings cognitively respond once they view

an outcome as inevitable).      That is, false polygraph results may

psychologically prime an innocent suspect to make a confession.




     24
          Det. Kuaana described the post-polygraph phase as follows:

          When I go into the post-test phase, obviously I have
          results from my polygraph; he didn’t pass. I know there’s
          some other things about the case, so then it becomes more
          accusatory. I become more confident in my accusations.
          It’s no longer about whether or not you’ve done it; we know
          you did it. It’s just a question of why did you do it.




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            The case of “The Norfolk Four” is emblematic of how

falsified polygraph results can coerce a suspect into making a

confession.     See Tom Wells & Richard A. Leo, The Wrong Guys

(2008) (detailing the backgrounds, arrests, interrogations, and

court proceedings of the Norfolk Four).           The Norfolk Four were

young men, each without criminal records, each enlisted in the

Navy, and each trained to endure highly stressful situations.

Id.   These men were subjected to intense interrogations in which

they were repeatedly accused of lying and fed information about

the case.     During their interrogations, the men each took a

polygraph test and were presented with falsified polygraph test

results.    Only then did the men confess, in graphic detail, to a

brutal “gang” rape and murder that they did not commit.              Id.

Shortly after their confessions, DNA evidence conclusively

showed that none of these men was the donor of the semen sample

recovered from the victim.        Nevertheless, their cases were still

prosecuted: one of the men was convicted by a jury of the murder

and rape, another was convicted of rape, and two took plea

agreements to avoid the death penalty.25          Id.   Subsequent to

their trials, the sole perpetrator of the crimes, who was

      25
            One of these men, Joseph Dick, became so convinced of his guilt
after the false polygraph results that he would go on to testify against the
other defendants and even wrote apology letters to the family of the victim
professing his guilt. Wells & Leo, supra, at 187, 244.




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already in prison for sexual assault, confessed to the crime and

a DNA match was obtained from him.         It took over 20 years for

the Norfolk Four to be granted clemency.          Priyanka Boghani,

“Norfolk Four” Pardoned 20 Years after False Confessions, PBS

(Mar. 22, 2017).26

           Extensive scientific literature and numerous

documented cases have demonstrated the coercive nature of

falsified polygraph test results; they can change a suspect’s

beliefs, pressure a suspect to confess, and even cause the

suspect to believe they committed the crime when they did not.

We thus conclude that providing falsified polygraph test results

to a suspect as part of a custodial interrogation is an

extrinsic falsehood that poses an unacceptable risk of inducing

an untrue statement or influencing an accused to make a

confession regardless of guilt.        See State v. Cabagbag, 127

Hawaii 302, 277 P.3d 1027 (2012) (relying on scientific studies

to require a specific jury instruction regarding factors to

consider in evaluating the reliability of eyewitness

identifications).     Thus, inculpatory statements elicited during

a custodial interrogation from a suspect whom has previously

been given falsified polygraph results in the interrogation

     26
            https://www.pbs.org/wgbh/frontline/article/norfolk-four-pardoned-
20-years-after-false-confessions/ [https://perma.cc/J929-N96Y].




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process are coercive per se and are inadmissible at trial.

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

          Accordingly, based on the foregoing, the circuit court

erred in determining that Det. Kuaana’s falsification of the

polygraph test results was not a falsehood and in admitting

evidence of Matsumoto’s confession.

2. The Admission of Matsumoto’s Confession Was Not Harmless Error

          Erroneously admitted evidence is evaluated under the

harmless beyond a reasonable doubt standard.          State v. McCroy,

104 Hawaii 203, 210, 87 P.3d 275, 282 (2004).          Under this

standard, “[t]he relevant question . . . is whether there is a

reasonable possibility that error might have contributed to

[the] conviction.”    State v. Kim, 140 Hawaii 421, 434 n.15, 402

P.3d 497, 510 n.15 (2017) (quoting State v. Han, 130 Hawaii 83,

93, 306 P.3d 128, 138 (2013)).       Here, Matsumoto’s confession was

contrary to his testimony at trial in which he denied the sexual

nature of his conduct in touching the CW.         The confession likely

detrimentally affected Matsumoto’s credibility in the minds of

the jury and thus there is a reasonable possibility that this

evidence may have contributed to Matsumoto’s conviction.             State

v. Kazanas, 138 Hawaii 23, 41, 375 P.3d 1261, 1279 (2016)

(holding that where the case turned on the credibility of the

defense’s witness versus the State’s, the improper admission of


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a statement which harmed credibility was not harmless beyond a

reasonable doubt).      Accordingly, the circuit court’s error was

not harmless beyond a reasonable doubt.27

 B. Exclusion of Evidence of the Circumstances Surrounding the
               Eliciting of Matsumoto’s Confession28

            The due process guarantee of the Hawaiʻi Constitution

serves “to protect the right of an accused in a criminal case to

a fundamentally fair trial,” and “[c]entral to the protections

of due process is the right to be accorded ‘a meaningful

opportunity to present a complete defense.’”29           State v. Tetu,

      27
            Matsumoto asserts that the court erroneously denied his motion
for judgment of acquittal. However, by presenting evidence after his motion
was denied, Matsumoto waived any error made by the circuit court in denying
the motion. State v. Calaycay, No. SCWC-XX-XXXXXXX, 2019 WL 4010192, at *6
(Haw. Aug. 26, 2019). Accordingly, we instead review whether the State
presented sufficient evidence to support the conviction. We review the trial
record to determine whether, when considered in the strongest light for the
prosecution, there was substantial evidence to support the conviction. State
v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992). Here, Ullom
testified that he saw Matsumoto “inappropriately touch” the CW’s buttocks and
the CW testified that Matsumoto grabbed her buttocks in a manner that
made her uncomfortable. This evidence is of “sufficient quality and
probative value to enable a [person] of reasonable caution” to reach a
conclusion as to the elements of the charged offense and to support the
conviction. Id.
      28
            Our determination that police deception as to the polygraph test
results was coercive per se essentially resolves the appeal in this case.
Nonetheless, we address whether the circuit court erred in excluding
Matsumoto from testifying as to the totality of the circumstances surrounding
his confession to enable the jury to assess its probative weight and
reliability because of the likelihood of the recurrence of this issue in
future cases and in light of the ICA’s resolution of this point on appeal.
      29
            Article I, sections 5 and 14 of the Hawai‘i Constitution provide
in relevant part the following:

            Section 5. No person shall be deprived of life, liberty
            or property without due process of law[.]


                                                             (continued . . .)


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139 Hawaii 207, 219, 386 P.3d 844, 856 (2016); State v. Matafeo,

71 Haw. 183, 185, 787 P.2d 671, 672 (1990) (quoting California

v. Trombetta, 467 U.S. 479, 485 (1984)).          Matsumoto asserts that

the failure to allow him to adduce the facts and circumstances

surrounding his confession violated his rights to present a

defense and to confront witnesses under the United States

Constitution and the Hawaiʻi Constitution.

            Matsumoto argues that the circuit court abused its

discretion in precluding him from adducing evidence at trial

that his post-polygraph statements were induced by Det. Kuaana’s

misrepresentation that he did not pass the polygraph test.

Despite the general rule that evidence of polygraph test results

or a defendant’s refusal or willingness to submit to a polygraph

examination is inadmissible, Matsumoto argues, there should be

an exception to that prohibition “where such evidence is

relevant to the credibility of a confession that is introduced

by the State” based on this court’s decision in State v.


(. . . continued)

            . . . .

            Section 14. In all criminal prosecutions, the accused
            shall enjoy the right . . . to be confronted with the
            witnesses against the accused, . . . to have compulsory
            process for obtaining witnesses in the accused’s favor[.]

Haw. Const. art I, §§ 5, 14.




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Kelekolio, 74 Haw. 479, 505, 849 P.2d 58, 70 (1993).            In

response, the State points to the “per se rule of exclusion”

regarding polygraph test evidence and contends that “the

potential for prejudice resulting from the jury knowing

[Matsumoto] had an inconclusive result with regard to the

polygraph test would far outweigh any probative value that such

evidence might have in determining the voluntariness or

involuntariness of his subsequently obtained statement.”

          In Kelekolio, this court explained the difference

between determining a statement’s “admissibility (i.e., whether

the confession or inculpatory statement was voluntarily given),”

which is a question for the court, and determining the weight

and effect of the confession or inculpatory statement with

regard to its credibility and reliability (i.e., its worthiness

of belief),” which is a question for the jury.          See 74 Haw. at

518, 849 P.2d at 76 (emphasis omitted).         Consequently, a

defendant has “the right to put before the jury, as the trier of

fact, all evidence, including the facts and circumstances

surrounding the making of his confession, ‘relevant to weight or

credibility.’”    Id. at 516, 849 P.2d at 75 (quoting Hawai’i Rules

of Evidence (HRE) Rule 104(e) (1985)).

          The Supreme Court in Crane v. Kentucky emphasized that

credibility questions, “whether of a witness or of a confession,



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are for the jury,” and a defendant has a “traditional

prerogative to challenge the confession’s reliability during the

course of the trial.”30        476 U.S. 683, 688 (1986) (citing Jackson

v. Denno, 378 U.S. 368, 386 n.13 (1964)).            Accordingly,

“evidence about the manner in which a confession was secured

will often be germane to its probative weight, a matter that is

exclusively for the jury to assess.”           Id.   Specifically, “the

physical and psychological environment that yielded the

confession can [] be of substantial relevance to the ultimate

factual issue of the defendant’s guilt or innocence.”               Id. at

689.    Even voluntary confessions “are not conclusive of guilt[,]

[a]nd, as with any other part of the prosecutor’s case, a

confession may be shown to be ‘insufficiently corroborated or

otherwise . . . unworthy of belief.’”           Id. (last alteration in

original) (quoting Lego v. Twomey, 404 U.S. 477, 485–86 (1972)).

             The Crane court explained that “a defendant’s case may

stand or fall on [the defendant’s] ability to convince the jury

that the manner in which the confession was obtained casts doubt

on its credibility.”        Id.   Thus, if a defendant is “stripped of



      30
            Crane involved a juvenile whose confession was admitted at trial.
476 U.S. at 684-85. At trial, the juvenile sought to introduce testimony
about the environment in which he made the confession to show that the
confession was unworthy of belief, but the trial court ruled the testimony
inadmissible. Id. at 685-86.




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the power to describe to the jury the circumstances that

prompted [the] confession, the defendant is effectively disabled

from answering the one question every rational juror needs

answered: If the defendant is innocent, why did [the defendant]

previously admit [] guilt?”      Id.

            At the suppression hearing, Det. Kuaana and Matsumoto

both testified that Det. Kuaana told Matsumoto that he “did not

pass” the polygraph test.      Before the trial began, the circuit

court ruled that there was to be no mention of the word

“polygraph” or the word “test” and that the parties were not to

say that the statement was a “material misrepresentation.”             The

court stated it would only allow witnesses to say that Det.

Kuaana made a statement that was not “totally true.”            The court

did not permit Matsumoto to testify or elicit from Det. Kuaana

that the not “totally true” statement was in regard to

Matsumoto’s polygraph test results.

            At trial, within the strictures of the court’s ruling,

Det. Kuaana testified that he provided Matsumoto “with some

information that was not completely accurate.”          Matsumoto

likewise testified that Det. Kuaana gave him “information that

[he] later on found out was not completely accurate” and that

there was “no doubt” that the information was not completely

accurate.    Based, in part, on this “misleading or inaccurate



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information,” Matsumoto testified that he “started doubting what

[he] could recall.”     There was no other testimony concerning

what Det. Kuaana told Matsumoto regarding the polygraph test.

          The jury also heard testimony from Det. McCumsey and

Det. Kuaana that Matsumoto admitted to grabbing the CW’s

buttocks while she was watching one of the wrestling matches and

heard from Det. Kuaana that Matsumoto had “change[d] his

statement and admitted to” grabbing the CW’s buttocks.            These

statements, the jury further heard, were made after Matsumoto

was told something that was not “completely accurate.”

          Thus, the jury received the testimony of the

detectives that Matsumoto admitted to grabbing the CW’s buttocks

while she was watching the match, and they heard testimony that

Matsumoto was told something that was not “completely accurate.”

What the jury did not have, however, was exactly what Matsumoto

was told before he made inculpatory statements: that he did not

pass the polygraph test.

          The jury was not able to hear from Matsumoto as to the

physical and mental effect of first being attached to a machine

that purports to discern lies from the truth, being subjected to

the polygraph test, and then being told that he did not pass the

test, essentially indicating that Matsumoto lied.           There is no

comparison between, on the one hand, an explanation that



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Matsumoto confessed because he was told something that was not

“completely accurate,” and, on the other, an explanation that he

confessed because he was told that he did not pass a polygraph

test conducted by a police detective who specifically questioned

him on the nature of his conduct.

           As a result of the circuit court’s ruling, Matsumoto

was unable to exercise his “right to put before the jury . . .

all evidence, including the facts and circumstances surrounding

the making of his confession, ‘relevant to weight or

credibility.’”     Kelekolio, 74 Haw. at 516, 849 P.2d at 75

(quoting HRE Rule 104(e) (1985)).         Matsumoto was not permitted

to adequately explain why he made the inculpatory statements,

“the one question every rational juror needs answered.”             Crane,

476 U.S. at 689.31     Without being allowed to fully explain the


     31
            This court has observed that, “It would appear, at least in the
absence of stipulation, that the courts almost uniformly reject the results
of lie detector tests when offered in evidence for the purpose of
establishing the guilt or innocence of one accused of a crime, whether the
accused or the prosecution seeks its introduction.” State v. Chang, 46 Haw.
22, 32, 374 P.2d 5, 11 (1962), overruled on other grounds by State v.
Okumura, 78 Hawaii 383, 894 P.2d 80 (1995). The Chang court explained that,
“Courts do not consider the polygraph or lie detector sufficiently perfected
nor the interpretation of results in its use reliable enough to permit
testimony respecting such a test to be admitted in evidence.” Id. at 31, 374
P.2d at 11; accord Okumura, 78 Hawaii at 397, 894 P.2d at 94 (“According to
well-established precedent in this jurisdiction, polygraph results are not
admissible at trial whether offered by the prosecution or the defense
. . . .”) abrogated on other grounds by State v. Cabagbag, 127 Hawaii 302,
277 P.3d 1027 (2012); State v. Antone, 62 Haw. 346, 357, 615 P.2d 101, 109
(1980) (same).
            None of these cases, however, concerned the “right to put before
the jury . . . all evidence, including the facts and circumstances

                                                             (continued . . .)


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circumstances surrounding his confession, the jury was unable to

make an informed determination regarding the credibility,

reliability, and the weight to be given to Matsumoto’s

inculpatory statements.       Kelekolio, 74 Haw. at 518, 849 P.2d at

76.   The circuit court’s decision to preclude Matsumoto from

adducing evidence that his post-polygraph test statements were

induced by Det. Kuaana, including being told that he did not

pass the polygraph test, severely compromised Matsumoto’s

constitutional right to a fair trial under article I, section 5

and to present a complete defense under article I, section 14 of

the Hawaii Constitution.32       Therefore, the circuit court erred

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


(. . . continued)

surrounding the making of his confession, ‘relevant to weight or
credibility.’” Kelekolio, 74 Haw. at 516, 849 P.2d at 75. Any concerns of
possible prejudice to the parties may be met by a limiting instruction to the
jury that the evidence as to the polygraph was admitted solely for the jurors
to consider the circumstances surrounding the making of the confession in
order to determine weight or credibility of the confession. See, e.g.,
People v. Melock, 599 N.E.2d 941, 960 (Ill. 1992); People v. Rosemond, 790
N.E.2d 416, 425 (Ill. App. Ct. 2003); State ex rel. Kemper v. Vincent, 191
S.W.3d 45, 52 (Mo. 2006); State v. Melvin, 319 A.2d 450, 460 n.2 (N.J. 1974);
Crumpton v. Commonwealth, 384 S.E.2d 339, 343 (Va. Ct. App. 1989).
      32
            Several courts in other jurisdictions have considered cases
involving circumstances similar to this case. Crumpton, 384 S.E.2d at 343
(holding that a jury cannot appreciate the significance of a confession
unless the defendant was able to “fully explain the surrounding circumstances
and reasons” that he altered his prior statement after a polygraph had been
conducted); State v. Schaeffer, 457 N.W.2d 194, 196 (Minn. 1990) (holding
that “if the trial court admits the confession, the trial court ‘must permit
the jury to hear evidence on the circumstances surrounding the making of the
confession . . . for a determination of weight and credibility’” thus
allowing the defense to present evidence that the defendant confessed only

                                                              (continued . . .)


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                          C. Jury Instruction

              A. “Intimate Parts” Instruction Was Flawed

            “It has long been held that it is the judge’s duty to

ensure that all jury instructions cogently explain the law

applicable to the facts in the case before it.”           State v.

Taylor, 130 Hawaii 196, 210, 307 P.3d 1142, 1156 (2013).             “This

court has repeatedly stated that ‘it is the duty of the circuit

judge to see to it that the case goes to the jury in a clear and

intelligent manner,’” so that the jurors may have a clear and

correct understanding of what it is they are to decide.              Id.

(. . . continued)

after being told he failed a polygraph test); Melock, 599 N.E.2d at 956, 960
(holding that “a defendant in a criminal case has a right at trial to present
evidence concerning the circumstances of his confession” and that “polygraph
evidence should have been admitted for the limited purpose of determining the
credibility and reliability of the confession”).
      33
            Matsumoto also argues that the circuit court abused its
discretion in providing the jury with obviously redacted transcripts of the
video recordings of his interrogations as there is a possibility that the
redactions invited speculation from the jury as to the omitted content and
that there is a substantial risk that the jury would ignore the court’s
limiting instruction not to speculate. While we decline to resolve the issue
in light of our disposition on other issues, we note that a redacted
transcript does not guarantee a defendant protection from prejudice created
by the redactions. Redacted transcripts, particularly where the redactions
are as pronounced as in this case, may have the effect of drawing the jury’s
attention to those omitted portions and may invite speculation on the part of
the jury as to the omitted content. Because of this legitimate risk, a trial
court should evaluate the nature of a transcript redaction in accordance with
the general standards of HRE Rule 403’s probative value test. In this case,
for example, the court may have considered whether the video recordings were
easily understandable without the transcript, whether the State could have
readily modified the transcript to make the redactions of the transcript less
prominent or minimize any potential prejudice (as was done with the
meticulously modified video recording of the interrogations), and whether the
blacked out passages could have been interpreted by the jury in a manner
prejudicial to the defense.




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(quoting State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310

(1980)); accord State v. Bovee, 139 Hawaii 530, 540, 394 P.3d

760, 770 (2017).

            In this case, the circuit court gave, over Matsumoto’s

objection, the following instruction to the jury:

                  “Sexual contact” means any touching other than acts
            of sexual penetration of the sexual or other intimate parts
            of a person not married to the actor or of the sexual or
            other intimate parts of the actor by the person, whether
            directly or through the clothing or other material intended
            to cover the sexual or other intimate parts.

                 “Sexual parts” means sexual organs.

                  “Intimate parts” means the buttocks and those parts
            of the body typically associated with sexual relations.

                  In considering whether the part of the body touched
            is a sexual or other intimate part, you must consider the
            context in which the contact occurred.

(Emphasis added.)     Matsumoto objected, maintaining that he was

requesting his proposed instruction because it more accurately

reflected the statement in State v. Silver that “a body part

which might be a sexual or other intimate part in one context

might not be in another.”       Matsumoto further argued that the

court’s instruction was not specific enough, it did not fully

describe context, and it did not include the limiting language

relating to consideration of context for each individual

incident.    In setting forth his objection to the court’s

instruction, Matsumoto specifically incorporated his written

arguments submitted in support of his proposed instruction 3,




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which emphasized that “it is critical that [the] jury understand

that not any touching of the buttocks is automatically sexual

contact.”

          a. The instruction contained a misstatement of law

            It appears that the initial error in the circuit

court’s instruction originates from its misapprehension of our

decision in State v. Silver, 125 Hawaii 1, 249 P.3d 1141 (2011).

There, the defendant argued that there was nothing in the sexual

assault statutes that suggested that the legislature considered

the buttocks to be an “intimate part” within the meaning of

“sexual contact” as defined in HRS § 707-700.            Id. at 6, 249

P.3d at 1146.     This court examined the plain language of HRS

§ 707–700 and concluded that the provision “does not indicate

whether the legislature considered the buttocks to be a part of

the body typically associated with sexual relations.”              Id. at 7,

249 P.3d at 1147.      However, in reviewing the legislative history

of section 707–700, as well as engaging in an in pari materia

reading of HRS § 712–1210, we concluded that “the legislature

intended the buttocks to be an ‘intimate part’ for purposes of

‘sexual contact’ as that phrase is defined in section 707–700.”

Id.   In support of its conclusion, the Silver court cited the

following statement from State v. Kalani: “This court has noted

that the definitions of ‘sexual contact’ under HRS § 707–700 and



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‘sexual conduct’ under HRS § 712–1210 were both ‘adopted

expressly for use in penal statutes regulating conduct with

sexual connotations’ and construed the two statutes with

reference to one another.”      Id. (emphasis added) (quoting 108

Hawaii 279, 286, 118 P.3d 1222, 1229 (2005)).          Thus, the Silver

court held that the buttocks may be an intimate part under the

definition of “sexual contact” provided the conduct involving

the buttocks is associated with “sexual connotations” or “sexual

relations.”   Id.   The Silver court emphasized this holding by

quoting from the ICA decision in the same case, which

“cautioned” that “a ‘body part which might be intimate in one

context, might not be in another [context].’”          Id.   (citing

State v. Silver, 123 Hawaii 299, 233 P.3d 719 (App. 2010)

(unpublished table decision)).       This court further quoted from

the ICA decision as follows:

          with respect to the buttocks, it is not uncommon for youth
          team coaches to give their players a congratulatory pat on
          the buttocks in recognition of a good play or outstanding
          effort. Parents hugging or carrying a young child may also
          place their hands on the child’s buttocks. In these
          situations, adults are knowingly touching the buttocks of
          another person who is less than fourteen years old. But
          because of the context, it would be unreasonable to regard
          the child’s buttocks as an “intimate part” for purposes of
          applying the sexual assault statutes. In these contexts,
          the child’s buttocks would not be a body part “typically
          associated with sexual relations.”




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Id. (emphasis added) (quoting Kalani, 108 Hawaii at 284–85, 118

P.3d at 1227–28).34

           In this case, the circuit court instructed the jury

that intimate parts means the buttocks.          In doing so, the court

effectively told the jury that, as a matter of law, the buttocks

is an intimate part of the body.          This statement is plainly

contrary to our holding in Silver.          The circuit court apparently

relied upon statements in the Silver decision that indicate that

the legislature intended the buttocks to be included within

“intimate parts” as that term is used in “sexual contact.”35                See

Silver, 125 Hawaii at 7, 249 P.3d at 1147.          But the fact that


     34
            The Silver court next considered whether there was substantial
evidence to support the defendant’s convictions. 125 Hawaii at 7, 249 P.3d
at 1147. With regard to the late night massages, the minor testified that,
while the defendant slept next to him, the defendant woke him up at least
three different times by rubbing his buttocks and whispering to him. Id.
Based on such evidence, this court concluded that the defendant’s conduct
“constituted the touching of an ‘intimate part’ of Minor’s body.” Id. On
the other hand, as to conduct in the pool that the minor described as the
defendant holding “[k]ind of like my crotch to throw me or under my butt to
throw me,” the context of the conduct as occurring during horseplay in a pool
was insufficient as a matter of law to support a conviction. Id. at 8, 249
P.3d at 1148. The key to this court’s ruling was that the conduct was not
demonstrated to have sexual connotations or be associated with sexual
relations but, instead, involved horseplay. Id. at 8-9, 249 P.3d at 1148-49.
     35
            We have repeatedly cautioned, “It is not every statement of the
law found in a text-book or opinion of a judge, however well and accurately
put, which can properly be embodied in an instruction.” Territory v. Cutad,
37 Haw. 182, 186 (Haw. Terr. 1945) (quoting Garfield v. State, 74 Ind. 60,
63-64 (1881)); State v. Clyde, 47 Haw. 345, 357, 388 P.2d 846, 853 (1964);
accord In re Estate of Herbert, 90 Hawaii 443, 468, 979 P.2d 39, 64 (1999).
This caveat is even more salient when the statement is not a statement of law
but, instead, is a part of the court’s reasoning leading to the court’s
decision.




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the legislature had no intention to exclude the buttocks from

“intimate parts” is a completely different proposition than the

conclusive statement that “intimate parts” means the buttocks.

The circuit court’s instruction therefore misstated the law

insofar as it necessarily included the buttocks within the

meaning of “[i]ntimate parts.”36

           b. The instruction was ambiguous and incomplete

           Matsumoto also argues that the circuit court’s

instruction was not specific enough and did not provide the

meaning of context.

           As stated, the circuit court instructed the jury as

follows:

                 “Intimate parts” means the buttocks and those parts
           of the body typically associated with sexual relations.

                 In considering whether the part of the body touched
           is a sexual or other intimate part, you must consider the
           context in which the contact occurred.

(Emphasis added.)

           The court’s instruction was deficient in that the

court failed to inform the jury that the touching of the

buttocks must be associated with sexual relations or have sexual

connotations in order for the buttocks to be an intimate part.

     36
            The circuit court’s misstatement of law that “‘[i]ntimate parts’
means the buttocks” was not corrected. The jury was never expressly
instructed that an intimate part does not mean the buttocks under certain
circumstances.




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See Silver, 125 Hawaii at 7, 249 P.3d at 1147 (concluding that

for a part of the body to be considered an “intimate part” as

used in HRS § 707-700, it must be associated with sexual

relations); Kalani, 108 Hawaii at 284-85, 118 P.3d at 1227-28

(same).   Thus, the context the jury considered may have had

nothing to do with whether the conduct was associated with

sexual relations or sexual connotations, and the fact that the

touching occurred in a high school athletic setting may have

been considered as a context sufficient to render the buttocks

an intimate part.37

           Relatedly, the jury was also never instructed that a

part of the body which might be sexual or intimate in one

context might not be in another.          This was a significant

omission given the circuit court’s erroneous statement that the


     37
            Matsumoto also argues that the jury should have been instructed,
pursuant to Silver, to limit its consideration of “context” to the alleged
touching at the wrestling mat. In Silver, this court disagreed with the
ICA’s conclusion that a rational jury could infer a connection between
touching in a pool and late night massages in the home. 125 Hawaii at 4, 8-
9, 249 P.3d at 1144, 1148-49. The defendant’s subsequent conduct during the
massages, we reasoned, did not turn the defendant’s earlier conduct in the
pool--which was “otherwise not actionable”--into a criminal offense. Id. at
8-9, 249 P.3d at 1148-49. The ICA’s conclusion, this court stated, relied on
“conduct that occurred at a later time, in a different setting, and which was
the basis for three separate counts of sexual assault.” Id. at 8, 249 P.3d
at 1148.
            In this case, the CW testified about two occasions when Matsumoto
touched her; however, she characterized one of those occasions as
“accidental.” It does not appear that the State sought to infer a connection
from the conduct that occurred by the wrestling mat to the conduct that the
CW testified was accidental. However, on remand, the circuit court should
address this aspect of context in its instructions.




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buttocks is an intimate part as a matter of law.            The omission

had the detrimental effect of increasing the ambiguity of the

instruction.

          Here, the circuit court’s jury instruction contained a

misstatement of law and was ambiguous and incomplete.             Thus, the

ICA erred in concluding that Matsumoto’s argument pertaining to

the jury instructions was without merit.38          On remand, the

instruction on “intimate part” should cogently explain the law

applicable to the facts in this case.         Taylor, 130 Hawaii at

210, 307 P.3d at 1156.

                              V. CONCLUSION

            Accordingly, the ICA’s September 26, 2017 Judgment on

Appeal and the circuit court’s June 27, 2014 Judgment of Guilty

Conviction and Probation Sentence are vacated, and this case is



     38
            The ICA ruled that Matsumoto’s argument relied on the assumption
that the jury only followed the first part of the court’s instruction that
“‘[i]ntimate parts’ means the buttocks” and disregarded the second part
requiring consideration of the context in which the contact occurred. The
ICA held that Matsumoto failed “to provide any evidence in support of this
assumption” and that the jury is presumed to follow the court’s instructions.
            Whether a jury instruction is flawed is not determined by whether
the defendant is able “to provide any evidence in support of [an] assumption”
that the jury followed a flawed portion of the instruction. Even assuming
that the circuit court’s instruction in its entirety was not technically
flawed, “[t]he ‘(q)uestion on review of instructions is not whether they were
technically correct but whether defendant could have suffered prejudice on
their account.’” State v. Napeahi, 57 Haw. 365, 377, 556 P.2d 569, 576
(1976). Given the contradictory nature of the court’s instruction, it is not
possible to determine which portion of the instruction the jury followed.
Additionally, the instruction was ambiguous and incomplete for the reasons
discussed.




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remanded to the circuit court for further proceedings consistent

with this opinion.



David M. Hayakawa                        /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Chad M. Kumagai
(Stephen K. Tsushima with him            /s/ Sabrina S. McKenna
on the briefs)
for respondent                           /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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