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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-12-0001011
                                                                21-JUN-2016
                                                                09:56 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

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

                                      vs.

      GREGORY A. KAZANAS, Petitioner/Defendant-Appellant.
________________________________________________________________

                              SCWC-12-0001011

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-12-0001011; CR. NO. 11-1-1592)

                                JUNE 21, 2016

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

                  OPINION OF THE COURT BY McKENNA, J.


I.    Introduction

       This month marks the fiftieth anniversary of the United

States Supreme Court’s landmark decision, Miranda v. Arizona,

384 U.S. 436 (1966).       In that case, the Court held that “the

prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of [a]
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defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-

incrimination.”    384 U.S. at 444.       The Court envisioned the

following procedural safeguard:          “Prior to any questioning, the

person must be warned that he [or she] has a right to remain

silent, that any statement he [or she] does make may be used as

evidence against him [or her], and that he [or she] has a right

to the presence of an attorney, either retained or appointed.”

Id.

      The Miranda advisement provides “concrete constitutional

guidelines for law enforcement agencies and courts to follow.”

384 U.S. at 442.    At the time the Court announced the Miranda

rule, it had become increasingly alarmed by the psychologically

coercive nature of police interrogations.         384 U.S. at 448

(“[C]oercion can be mental as well as physical . . . [T]he blood

of the accused is not the only hallmark of an unconstitutional

inquisition.”) (citing Blackburn v. Alabama, 361 U.S. 199, 206

(1960)).   Although none of the petitioners in the Miranda case

was the victim of “overt physical coercion or patent

psychological ploys,” the Court was nonetheless concerned that

the police officers who questioned the petitioners did not

“undertake to afford appropriate safeguards at the outset of the

interrogation to insure that the statements were truly the

product of free choice.”      384 U.S. at 457.

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      In this appeal, we decide whether an arrestee not advised

of his Miranda rights was “interrogated” in the constitutional

sense.    Briefly stated, Petitioner/Defendant-Appellant Gregory

Kazanas (“Kazanas”) was charged with one count of Criminal

Property Damage in the First Degree and one count of

Unauthorized Entry into Motor Vehicle in the First Degree

(“UEMV”).    The charges stemmed from events alleged to have taken

place on Halloween 2011.        Kazanas was accused of breaking the

back windshield of a car then reaching through the driver’s side

open window to punch the driver in the face.            Kazanas was

identified by the complaining witness and arrested.             The

Honolulu Police Department (“HPD”) police officer assigned to

accompany Kazanas to Queen’s Medical Center knew the reason for

the arrest.     In an apparent effort to make small talk and calm

Kazanas down, she asked him how his Halloween went.             During the

conversation, Kazanas stated, “If people didn’t upset me, I

wouldn’t have to punch them.”         The statement was admitted at

trial, and Kazanas was ultimately convicted of UEMV.

      We hold that, although the officer testified that she did

not intend her small talk to provoke an incriminating response,

she “should have known that her words were reasonably likely to

elicit an incriminating response from the person in custody.”

State v. Joseph, 109 Hawaii 482, 495, 128 P.3d 795, 808 (2006)

(“Interrogation involves any practice reasonably likely to
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invoke an incriminating response without regard to objective

evidence of the intent of the police.”).         The questioning in

this case was reasonably likely to elicit an incriminating

response as the events of the night culminated in Kazanas’s

arrest for UEMV.    The officer knew how Kazanas’s Halloween went.

Thus, her question was reasonably likely to elicit from Kazanas

details about the alleged crime.         In other words, the police

officer subjected Kazanas, a person in custody pursuant to an

arrest, to interrogation; accordingly, Kazanas was entitled to

be advised of his Miranda rights before the small talk

conversation began.     As Kazanas’s right against self-

incrimination was violated, his statement should have been

suppressed at trial.

      On certiorari, Kazanas also argues that the circuit court

abused its discretion in admitting prior bad act evidence that

Kazanas had run, jumped, and punched two people in 2007 and

punched another person in the face, arms, and legs, then struck

her in the face with a cane in 2006, incidents that occurred

before the Halloween 2011 incident.         On certiorari, Kazanas no

longer disputes that he opened the door to the admission of the

evidence when he testified he was physically incapable of

running, jumping, and punching ever since he sustained serious

injuries in a nine-story fall from a hotel balcony in 2005.

Rather, on certiorari, Kazanas challenges the circuit court’s

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weighing of the evidence’s probative value versus the danger of

prejudice under Hawaii Rules of Evidence (“HRE”) Rule 403

(1980).    We hold that the circuit court abused its discretion in

admitting evidence of the 2006 prior bad acts, as only the 2007

incident was necessary to counter Kazanas’s testimony, and the

probative value of the 2006 acts was substantially outweighed by

the danger of unfair prejudice.

      In sum, the ICA erred in concluding that Kazanas’s

statement was not procured in violation of his Miranda rights

and therefore admissible.       The ICA also erred in concluding that

the circuit court properly permitted the State to introduce

evidence of Kazanas’s 2006 prior bad acts.          Therefore, the ICA’s

Judgment on Appeal and the Circuit Court of the First Circuit’s1

(“circuit court”) Judgment of Conviction of Probation Sentence

are vacated, and this case is remanded for a new trial.

II.   Background

      A.   Indictment and Pre-Trial Motions

      On November 3, 2011, Kazanas was charged by Indictment of

one count of Criminal Property Damage in the First Degree, in

violation of Hawaii Revised Statutes (“HRS”) § 708-820(1)(a)




1
      The Honorable Rom A. Trader presided.


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(2014)2, and one count of Unauthorized Entry into Motor Vehicle

in the First Degree, in violation of HRS § 708-836.5(1) (2014).3

      Kazanas filed his Motion in Limine #1 seeking exclusion of

the following evidence:

           (a) Testimonial or documentary evidence relating to the
           defendant’s prior criminal record, including any reference
           to defendant’s conviction and being placed on probation in
           CR. NO. 06-1-0995; and
           . . . .
           (c) Statements made by the defendant to Honolulu Police
           Officer CHRISTY-LYNN AVILLA on November 1, 1011 [sic] at
           approximately 0050 hours at the Queen’s Medical Center. . .
           .

      Before trial, the State filed its Notice of Intent to Use

Evidence of Prior Acts.       Specifically, the State sought to admit

evidence of (1) a 2007 assault in the third degree conviction,

stemming from an incident in which Kazanas and another person

attacked two men from behind, then ran from police and jumped a

fence; and (2) a 2006 abuse of family or household member

conviction, stemming from an incident in which Kazanas ambushed

his ex-girlfriend in her apartment; punched her on her face,

arms, and legs; and struck her in the face with a cane.




2
      HRS § 708-820(1)(a) provides, as it did at the time of the alleged
offense, “A person commits the offense of criminal property damage in the
first degree if by means other than fire . . . [t]he person intentionally or
knowingly damages property and thereby recklessly places another person in
danger of death or bodily injury. . . .”
3
      HRS § 708-836.5(1) provides, as it did at the time of the alleged
offense, “A person commits the offense of unauthorized entry into motor
vehicle in the first degree if the person intentionally or knowingly enters
or remains unlawfully in a motor vehicle, without being invited, licensed, or
otherwise authorized to enter or remain within the vehicle, with the intent
to commit a crime against a person or against property rights.”


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      Before trial, the State also filed a Motion to Determine

the Voluntariness of Defendant’s Statement to the Police.               The

motion sought orders from the court

           1. Finding and concluding that the statements made by
           Defendant Gregory A. Kazanas . . . to Officer Christy-Lynn
           Avilla . . . on November 1, 2011, were voluntarily made.
           2. Prohibiting the defense from commenting upon or making
           reference to the substance of Defendant’s statement to the
           police, unless the prosecution first introduces evidence of
           the same.

The specific statements Kazanas made to Officer Avilla were, “I

wouldn’t have to punch people if they didn’t upset me,” and “If

you didn’t catch me now for this, you would’ve caught me later

for something else.”

      Immediately before trial, the circuit court held a hearing

on the State’s motion.     Officer Avilla testified as follows:

She transported Kazanas to Queen’s Medical Center in the early

morning hours of November 1, 2011.        Kazanas was transported to

the hospital because he had injuries on his right hand.            Officer

Avilla told Kazanas “multiple times” that he was under arrest

for UEMV, first when she handcuffed him, next during transport,

and lastly at the hospital.      Although she did not inform him

that he had the right to remain silent, she did tell him, upon

his arrest, “that he was not allowed to talk about the case or

say anything about what he had been arrested for.”

      She further testified that at the hospital, Kazanas began

“making comments that were rude and other patients could hear


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it. . . .”    Avilla moved Kazanas to an HPD room within the

hospital.    Avilla and Kazanas sat about six feet away from each

other, with Kazanas in handcuffs.        Although Officer Avilla did

not detect alcohol on Kazanas’s breath, his “demeanor made it

seem that he was under the influence of something. . . .”

      In order to “help him calm down and get his mind off of

saying . . . rude things,” she began asking Kazanas “questions

about if he enjoyed Halloween that night, what kind of costumes

did he see, but nothing along the lines in reference to the

investigation. . . .”     Officer Avilla testified she did not know

what his responses would be.

      According to Officer Avilla, it was Kazanas who decided to

“spontaneously utter[], ‘If people didn’t upset me, I wouldn’t

have to punch them.’”     She further testified that Kazanas’s

statement was not in response to any questions she asked him.

Although she was not sure how much time had passed between her

small talk questions and his statements, Officer Avilla

testified that his statements were made “just out of the blue,

that was out of context of what we were talking about,”

referring to the conversation about Halloween and costumes.

After Kazanas made his statement, Officer Avilla told him “his

case was still under investigation and to stop what he was

saying, because it could be used against him in a court of law.”

Kazanas then apologized; about a minute or so later, he then

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stated, “If you didn’t catch me now, you would have caught me

for something else later.”

      The circuit court granted in part and denied in part the

State’s Motion to Determine Voluntariness of Defendant’s

Statement to the Police.      The court granted the motion in part,

finding that “Defendant’s statement to Officer Avilla, ‘I

wouldn’t have to punch people if they didn’t upset me’ was a

voluntary statement and is admissible.”         The circuit court

excluded, however, Kazanas’s second statement to Officer Avilla

(“If you didn’t catch me now for this, you would have caught me

later for something else”); the circuit court reasoned that the

statement, while voluntary, was unfairly prejudicial to Kazanas.

      The circuit court also took up the State’s notice of intent

to use Kazanas’s prior bad acts, namely the 2007 assault and a

2006 abuse of family or household member arrests that led to

convictions.     The circuit court precluded use of Kazanas’s prior

bad acts but stated that it would revisit its ruling if the

defense opened the door to that evidence.

      B.   Trial Testimony

            1.   The State’s Case in Chief

      The State called former HPD Police Officer James Easley.

He testified that he saw Kazanas dressed as a knight on

Halloween in Waikiki.     He recognized Kazanas from his police

officer days.     Years before (in 2005), Easley had responded to

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the Aloha Surf Hotel after Kazanas had fallen from a ninth floor

balcony.   When Easley arrived, Kazanas was still coherent.

Easley testified he would never forget Kazanas’s name or face

because the incident had an impact upon him.

      Easley testified that he saw Kazanas, who was holding

something in his hand, “str[ike] the back window of a white

sedan that was stopped there in traffic, shattering the glass.”

Kazanas then “ran around to the front of the car and he jumped

on the hood of the car, kind of rolling on over, and then he

approached the driver’s side window of the vehicle and began

punching the driver through the . . . open window.”           After the

incident ended, Easley contacted his police officer friends on

duty and identified Kazanas as the suspect.

      The State then called complaining witness Geoffrey Ross.

He testified that it was about midnight on Halloween when he was

driving on Kuhio Avenue with friends, to see “the craziness, the

festivities, what people were doing.”        Ross testified that a

group of about a dozen or two dozen people ran across the street

in front of the car.     They were running to observe a fist fight.

“Out of the blue,” Ross testified, “one more person [came]

charging across the street . . . and ran headlong into the right

front corner of the car. . . .”       Ross wondered if the person was

injured, when the person “[a]ll of a sudden . . . bounce[d] up

and continue[d] right through . . . to where the fight was.”

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Ross sensed that people who had just witnessed what happened

thought he was “a person who had just hit a pedestrian” and

“converged on the car to accuse [him]” and stop him from getting

away.

      As he slowly moved his car over to the curb, a crowd of

people began yelling, pounding on the windows of the car, and

rocking the car.     Someone broke the back windshield, but Ross

could not see who it was; Ross had a passenger in the back seat

at the time.    Someone with heavy shoes or boots was also on the

hood of the car, stomping against the windshield in an attempt

to crack it.    That person “hopped off to the left side of the

car” and came up to Ross’s open window.          He “encircle[d Ross’s]

neck and h[e]ld onto it, and then -- with the one arm, and then

with the other . . . punch[ed] the side of [Ross’s] face with a

closed fist.”    Ross was struck “two, three times” to the “[l]eft

side cheek and ear area, jaw.”

      After the attack, Ross drove slowly up Kuhio Avenue towards

some police cars and reported the incident.           Not long after the

incident, Ross was taken to do a drive-by identification of the

suspect.   He was “[a]s certain as [he] could be” that he

identified Kazanas as his assailant during the drive-by

identification.     On cross-examination, Ross testified that he

“didn’t believe that” the person who punched him was “the person

who broke the glass because [he] couldn’t see how a person could

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break the glass and in that short of a time . . . then appear on

the front of the car.”

      The State next called Officer Avilla, who had been with HPD

for five years at the time of trial.        She testified that on

Halloween night in 2011, she was on patrol when she was

instructed to stand by Kazanas on Kuhio Avenue to await a field

show-up identification.     After a positive identification was

made, Kazanas was placed under arrest.         Officer Avilla’s role

was to transport Kazanas to Queen’s Medical Center.           She noticed

Kazanas had cuts, scrapes, and redness on his right hand.

      At the hospital, Kazanas “was being rude and saying things

that were verbally offensive to other people in the area,” so

Officer Avilla moved him to the HPD patient room away from other

patients.   In order to “take his mind off of what he was

saying,” she engaged Kazanas in conversation.          Officer Avilla

“ask[ed] him how was his Halloween, did he enjoy the costumes,

things along that matter, but never about the investigation.”

Kazanas then stated, “If people didn’t upset me, I wouldn’t have

to punch them.”    Officer Avilla testified that Kazanas made the

statement even though she “was not asking him anything about the

investigation.”    She then immediately told Kazanas “that

whatever he said can be used against him in a court of law, and

to stop what he was saying.”



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            2.   The Defense’s Case in Chief

       Kazanas’s defense was, not only did he not commit the

offenses, he was physically incapable of committing the

offenses.    Kazanas called his friends Simon Farrington and Hans

Kolbisen, who were both with him on Halloween.            Both testified

that Kazanas was not the person who broke the car windshield and

punched the driver.

       Kazanas also testified in his own defense.           He stated that

a group of friends met at his house before heading into Waikiki

on Halloween night.       Kazanas was briefly separated from the

group.    During the time he was separated, someone drop-kicked

him to the ground.      He explained that red marks on his knuckles

were the result of his labored attempts to “[s]tand[] up after

[he] had been kicked. . . .”

       During this part of his testimony, Kazanas elaborated on

his physical condition.       According to Kazanas, his “wrist

doesn’t bend back . . . [due to] a double compound fracture from

falling off the nine-story building,” and his right arm cannot

extend beyond 90 degrees.        Due to the limitations in his wrist

and right arm, Kazanas was “unable to get to the upright

position placing both of [his] hands on the ground, so [he had]

to use [his] knuckles [to] push [himself] off up the ground. . .

.”    His right leg also does not bend beyond 90 degrees.            He

explained that the nine-story fall resulted in “four lumbar

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vertebrae [shattering], double compound fractures on [his]

wrists, double compound fractures on both of [his] thighs and

both of [his] shins, and broke[n] . . . arms and elbows and

shoulders. . . .”     Kazanas recalled that he was in a “medically-

induced coma for three weeks [and] three weeks in recovery, in

traction. . . .”

      He resumed his testimony about Halloween night, stating

that after he got up from being drop-kicked, he “shuffled away”

because he “can’t run.”      Kazanas then returned to his group of

friends and witnessed the incident involving Ross.            Kazanas

testified that he was not the one who smashed the car’s back

window.   He also testified that he did not jump on the hood of

the car, because he would only have been able to “crawl up onto

the hood” because he “can’t jump.”         He elaborated, “My legs

restrict me to jump.      I have about 37 screws and seven rods in

my legs from my hips to my feet; it’s like I’m wearing a pair of

steel-toe boots all the time.        I can barely jump an inch or two

off the ground.”

      Kazanas also denied reaching into the car to punch Ross; he

testified, “I wouldn’t have been able to reach into the car

. . .   I have limited range of motion on my arm, my right arm

specifically.”     Kazanas explained that he has “calcium deposits

in [his] elbow restricting any movement,” as well as calcium

deposits in his knee that render him barely able to “walk up a

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set of steps without kicking the top rung.”          Kazanas

characterized himself as “disabled.”        Kazanas stated that when

the incident was over, he walked away.

      When asked why he told Officer Avilla, “I wouldn’t have to

punch people if they didn’t upset me,” Kazanas explained that he

was “under stress” and “was just speculating to the fact that

[the police officers] said that I was under arrest for an

assault.”   On cross-examination, Kazanas affirmatively answered

the State’s question that he “couldn’t have done this attack

because [he] physically can’t attack a person. . . .”

      As a result of Kazanas’s testimony that he was not

physically capable of committing the charged offenses, the State

sought to revisit the issue of Kazanas’s prior bad acts.            The

State argued that Kazanas “opened the door” to the admission of

prior bad act evidence when he argued that he was physically

incapable of breaking the car windshield and punching Ross

because of injuries he suffered from the nine-story fall.               The

defense counter-argued that the prior bad acts were dissimilar

to the acts for which Kazanas was on trial:          first, Kazanas was

the one injured in the 2007 assault; second, the 2006 abuse of

family or household member involved Kazanas’s striking someone

with a walking stick, and there was no allegation in the instant

case that Kazanas struck anyone with an implement.



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      The circuit court allowed the admission of the prior bad

act evidence as follows:

                 [W]hat is abundantly clear in the record thus far is
           that Mr. Kazanas as a result of the injuries that he
           sustained in 2005 from the fall from the ninth floor lanai
           of I believe it’s the Aloha Surf . . . that he sustained
           some very serious and significant injuries that rendered
           him essentially and in his words disabled and physically
           incapable of engaging in certain types of physical conduct
           or actions.
                 And so given that, the State’s request to question
           the defendant regarding these prior incidents is not the
           typical situation where it’s going to some sort of 404(b)
           type of purpose such as to establish intent, knowledge,
           modus operandi, absence of mistake, any of those things.
           In this particular instance, the Court believes that the
           information that is contained within the State’s notice, at
           least selected and very limited portions of it, would
           appear to be relevant to the jury’s assessment of the
           defendant’s, number one, his credibility, because he’s made
           statements here in court that he doesn’t have certain
           physical capabilities, yet as documented in these reports
           there are several references to him punching individuals,
           to him running away, to him jumping . . . and to the extent
           that the fact that there is contrary evidence that would
           bear upon the credibility of the defendant’s testimony,
           clearly that would be relevant.
                 Also, it would be relevant just squarely on the issue
           of whether he has these physical capabilities or not. It’s
           up to the jury to decide. I’m not going to decide. But
           this evidence in that limited capacity would appear to be
           appropriate.

The circuit court also noted that it was “absolutely crucial

. . . that a cautionary instruction would have to be given. . .

.”    The circuit court further warned the State that the “only

thing that [it was] going to be permitted to ask the defendant

are things that related to his physical actions in those prior

incidents,” as related in the respective police reports, but not

the facts of arrest or conviction.         The circuit court also noted

for the record that it performed a HRE Rule 403 balancing test

and “believe[d] the probative value of the proffered evidence as

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limited by the Court outweigh[ed] any concern of any unfair or

substantial prejudice to the defendant.”

      Before the State cross-examined Kazanas on his prior bad

acts, the circuit court instructed the jury as follows:

                You may hear evidence relating to one or more prior
          incidents involving the defendant. This evidence is
          admitted for a specific limited purpose and only may be
          considered by you as bearing upon the credibility of the
          defendant and whether the defendant may or may not have
          certain physical capabilities.
                You are specifically instructed that you may not
          consider this evidence as establishing any violent or bad
          character of the defendant, or that it proves that he acted
          in conformity therewith during the events underlying the
          alleged offenses in this case.
                You are prohibited from considering this evidence on
          any other issue or for any other purpose besides what the
          Court has ordered.

The State then cross-examined Kazanas about these prior bad

acts, which Kazanas acknowledged happened after his 2005 fall.

Kazanas admitted that in 2007, he ran “as fast as [he could]”

down the street after two men before jumping over a waist-high

picket fence.   Then he and another individual punched the two

men in the face.    Kazanas also admitted that in 2006, he struck

a woman in the face with his cane and punched her on the face,

arms, and legs.

      On redirect examination, Kazanas testified that he used a

cane to get around after his nine-story fall.          With regard to

the punching incidents, Kazanas testified that he punched with

his left arm because his right arm was in a cast.           He also




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testified that in the 2007 incident, he and another individual

were punching a person who had assaulted him earlier.

            3.    Verdict

      The jury acquitted Kazanas of Count 1 (Criminal Property

Damage in the First Degree) and convicted Kazanas of Count 2

(UEMV).    The circuit court entered a Judgment of Acquittal as to

Count 1, and a Judgment of Conviction of Probation Sentence as

to Count 2.      Kazanas was sentenced to five years’ probation,

with a special condition of 90 days’ imprisonment.           Kazanas

timely appealed.

      C.   ICA Appeal

            On appeal, Kazanas raised two points of error:
            A. The trial court erred in allowing Defendant’s statement
            to Officer Avilla into evidence.

            B. The trial court erred in allowing prior incidents
            involving the Defendant into evidence.

      In a published opinion, a majority of the ICA affirmed

Kazanas’s Judgment of Conviction of Probation Sentence,

rejecting both of Kazanas’s points of error, discussed in

greater detail below.       State v. Kazanas, 134 Hawaii 117, 129,

336 P.3d 217, 229 (2014).

            1.   Admission of Statement to Officer

      As to Kazanas’s argument that his incriminating statement

should have been suppressed at trial, the ICA held the

following:


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            We conclude that Officer Avilla did not subject Kazanas to
            “interrogation” for purposes of Miranda and that Kazanas’s
            statement was not in response to “interrogation” by the
            Officer. Therefore, the absence of prior Miranda warnings
            by Officer Avilla did not provide a basis to suppress
            Kazanas’s spontaneous and volunteered statement. Under the
            circumstances presented, we hold that the trial court
            properly permitted the State to introduce Kazanas’s
            statement at trial.

134 Hawaii at 119, 336 P.3d at 219.         The ICA noted that there

was “no dispute that Kazanas was in custody when he made the

challenged statement to Officer Avilla,” thus limiting its

analysis to “whether Kazanas was subjected to ‘interrogation’

when he made the statement.”       134 Hawaii at 126, 336 P.3d at

226.

       The ICA observed, “The United States Supreme Court defines

‘interrogation’ for Miranda purposes as referring to ‘express

questioning or its functional equivalent.’”           Id. (citing Rhode

Island v. Innis, 446 U.S. 291, 300-01 (1980)).           The ICA also

quoted Innis for the proposition that “the definition of

interrogation can extend only to words or actions on the part of

police officers that they should have known were reasonably

likely to elicit an incriminating response.”           Id.   (citing 446

U.S. at 301-02) (footnote omitted; emphasis added by ICA).

According to the ICA, this definition of “interrogation” was

adopted by the Hawaii Supreme Court in Ketchum, 97 Hawaii at

119, 34 P.3d at 1018, as follows:         “[T]he ultimate question

becomes whether the police officer should have known that his or


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her words or actions were reasonably likely to elicit an

incriminating response from the person in custody.”           Id.

(brackets omitted).     The ICA noted that Ketchum held that

whether “interrogation” has occurred depends upon the “totality

of the circumstances . . . with a focus upon the officer’s

conduct, the nature of the question (including whether the

question is a ‘routine booking question’), and any other

relevant circumstance.”     97 Hawaii at 121, 34 P.3d at 1020.

Further, the ICA noted, “[V]olunteered confessions or

admissions, obtained independent of express police questioning

or its functional equivalent, are admissible.”          Kazanas, 134

Hawaii at 126, 336 P.3d at 226 (citing, inter alia, State v.

Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 284 (1985)).

      The ICA then examined Ikaika, a case in which this court

held that the defendant was not subjected to interrogation.             67

Haw. 563, 698 P.2d 281.     In that case, Lieutenant Richard

Bartolome, who was acquainted with the defendant (Ikaika), asked

him while he was booking and fingerprinting him, “What’s

happening?    Must be heavy stuff for two detectives to bring you

down here?”   67 Haw. at 565, 698 P.2d at 283.         Ikaika “responded

that he had been picked up for questioning about [a] murder,”

then, “[w]ithout further comment by Bartolome,” Ikaika blurted

out, “Bartolome I cannot lie to you, you’ve done a lot for me


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and you have been too nice to me.        I shot the haole.”      Id.     This

court held that Bartolome’s question was just a “pleasantry,”

and that Ikaika’s confession “was of the nature of an

unsolicited, spontaneous statement made in the absence of any

police questioning.”     67 Haw. at 567, 698 P.2d at 285.

      Analogizing Ikaika to the instant case, the ICA concluded,

“under the totality of the circumstances, that Kazanas’s

statement, ‘If people didn’t upset me, I wouldn’t have to punch

them,’ was volunteered, unsolicited, and spontaneous, and was

not in response to any interrogation by Officer Avilla.”

Kazanas, 134 Hawaii at 127, 336 P.3d at 227.         Therefore, the ICA

held that prior Miranda warnings were not required.           Id.      The

totality of the circumstances included (1) Officer Avilla’s

warning that Kazanas was not allowed to talk about the case or

say anything about what he had been arrested for; (2) the “small

talk” nature of Officer Avilla’s questions about Halloween, akin

to the “pleasantry” in Ikaika; (3) the non-responsive and “out-

of-the-blue” nature of Kazanas’s statement about punching

people; (4) the period of time that had passed between Officer

Avilla’s small talk questions and Kazanas’s statement; and (5)

Kazanas’s own explanation that he made the statement because he

was “under stress” and “just speculating to the fact that [the

police] said that [he] was under arrest for an assault.”               134



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Hawaii at 127-28, 336 P.3d at 227-28.        The ICA then held that

the circuit court did not err in permitting the State to

introduce Kazanas’s volunteered statement at trial.           134 Hawaii

at 128, 336 P.3d at 228.

      Judge Foley dissented.     134 Hawaii at 129, 336 P.3d at 229

(Foley, J., dissenting).      To Judge Foley, “Kazanas’ statement

was obtained as a result of a custodial interrogation because

Avilla was aware of the circumstances of Kazanas’ detention, and

Avilla asked an open-ended question, the subject matter of which

was the same as that for which Kazanas was detained.”            134

Hawaii at 130, 336 P.3d at 230 (Foley, J., dissenting) (footnote

omitted).   Unlike Lieutenant Bartolome in the Ikaika case,

Officer Avilla “was familiar with [the detainee’s] case, the two

were not previously acquainted, and [the detainee’s] statement .

. . was responsive to the police officer’s question.”            Id.

(Foley, J., dissenting).      Judge Foley considered Officer

Avilla’s explanation that she asked about Halloween to calm

Kazanas down to be “nothing more than a post hoc rationalization

for asking the question.”      Id. (Foley, J., dissenting) (citing

Ketchum, 97 Hawaii at 119, 34 P.3d at 1018.

      Judge Foley then analogized Kazanas’s case to Ketchum, a

case in which this court held that police officers who asked a

detainee for his home address should have reasonably known that


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asking the question would elicit an incriminating response, as

the detainee lived at a residence, which was identified in a

search warrant, in which drugs had just been found.             Id. (Foley,

J., dissenting) (citing Ketchum, 97 Hawaii at 128, 34 P.3d at

1027).    Judge Foley stated, “[S]ince Avilla knew the events of

Halloween night led to Kazanas’ arrest, asking how his night

went invited Kazanas to describe events underlying his arrest.”

134 Hawaii at 131, 336 P.3d at 231 (Foley, J., dissenting).

Judge Foley believed the circuit court erred in admitting the

statement, and that the error was not harmless beyond a

reasonable doubt, as Kazanas’s case rested upon the credibility

of his witnesses versus those of the State.            Id. (Foley, J.,

dissenting).

            2.     Admission of Prior Bad Acts

      As to Kazanas’s second point of error, the ICA held “that

the trial court did not err in permitting the State to introduce

prior incidents involving Kazanas that were relevant to his

physical capabilities, after Kazanas opened the door to such

evidence.”       134 Hawaii at 119, 336 P.3d at 219.       Kazanas opened

the door by testifying that after his 2005 nine-story fall, “he

was physically incapable of engaging in the conduct alleged by

[Ross], namely, jumping on the hood of the car and reaching into

the car and punching [Ross].”         134 Hawaii at 129, 336 P.3d at


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229.    The ICA also concluded, “[W]e cannot say that the Circuit

Court abused its discretion in balancing the probative value of

the evidence regarding the prior incidents against the risk of

unfair prejudice,” further noting that the circuit court’s

limiting instruction “served to mitigate any unfair prejudice

resulting from the evidence of the prior incidents.”             Id.

(citation omitted).      Judge Foley did not dissent to this

holding.

III.    Standards of Review

       A.   Violation of Miranda Rights

       Whether an accused’s right against self-incrimination under

the Hawaii constitution was protected through the use of a

Miranda warning is a question of constitutional law, which this

court reviews de novo under the right/wrong standard.             State v.

Jenkins, 93 Hawaii 87, 100, 997 P.2d 13, 26 (2000) (citations

omitted).     We “exercise our own independent constitutional

judgment[,] based on the facts of the case[,]” to answer

questions of constitutional law.          Id.

       B.   HRE Rules 404(b) and 403

            “Prior bad act” evidence under [HRE] Rule 404(b) . . . is
            admissible when it is 1) relevant and 2) more probative
            than prejudicial. A trial court’s determination that
            evidence is “relevant” within the meaning of HRE Rule 401 .
            . . is reviewed under the right/wrong standard of review.
            However, a trial court’s balancing of the probative value
            of prior bad act evidence against the prejudicial effect of
            such evidence under HRE Rule 403 . . . is reviewed for an
            abuse of discretion. An abuse of discretion occurs when
            the court clearly exceeds the bounds of reason or

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           disregards rules or principles of law to the substantial
           detriment of a party litigant.

State v. Behrendt, 124 Hawaiʻi 90, 102, 237 P.3d 1156, 1168

(2010) (brackets and ellipses in original) (citation omitted).

IV.   Discussion

      A.   Kazanas’s Right against Self-Incrimination Was
           Violated.

      On certiorari, Kazanas argues, “There [were] no exigent

circumstances nor legitimate purpose for Officer Avilla to

engage in such conversation with Petitioner Kazanas while in her

custody which involved ‘Halloween’ events which were related to

the circumstances of his arrest.”        Kazanas argues that Officer

Avilla, who had five years’ experience with HPD at the time of

Kazanas’s arrest, “should have known that such conversation was

reasonably likely to elicit an incriminating response from

Petitioner Kazanas.”     The State, in its Response, counter-argues

that Kazanas “seems to have omitted numerous crucial details

that are part of the ‘totality of the circumstances’ surrounding

his utterance.”    The State endorses the ICA majority’s detailing

of the totality of the circumstances, as well as its conclusions

that Officer Avilla’s questions did not constitute interrogation

and that Kazanas’s statement was volunteered.

      The Fifth Amendment to the United States Constitution

states, in relevant part, that no person “shall be compelled in

any criminal case to be a witness against himself. . . .”

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Similarly, Article I, section 10 of the Hawaii Constitution

provides, in relevant part, that “[n]o person shall . . . be

compelled in any criminal case to be a witness against oneself.”

This section of the Hawaii Constitution “provides ‘an

independent source’ from that of the fifth amendment to the

United States Constitution for the ‘protections which the United

States Supreme Court enumerated’ in Miranda. . . .”           Ketchum, 97

Hawaii at 116, 34 P.3d at 1015 (citing State v. Santiago, 53

Haw. 254, 266, 492 P.2d 657, 664 (1971)).         “[A]s a matter of

state constitutional law,” id., “before the State may use

statements stemming from custodial interrogation, it must first

demonstrate the use of procedural safeguards effective to secure

the privilege against self-incrimination.”         Ikaika, 67 Haw. at

566, 698 P.2d at 283-84 (citing, inter alia, Miranda, 384 U.S.

at 467).

      A critical safeguard is the Miranda warning:          an accused

must be “warned that he or she had a right to remain silent,

that anything said could be used against him or her, that he or

she had a right to the presence of an attorney, and that if he

or she could not afford an attorney one would be appointed for

him or her.”   Ketchum, 97 Hawaii at 116, 34 P.3d at 1015

(brackets and citation omitted).         The Santiago Court held that

“every accused must be informed of the fact that he or she has


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certain rights under the Hawaii Constitution.”          Ketchum, 97

Hawaii at 116, 34 P.3d at 1016 (citing Santiago, 53 Haw. at 267,

492 P.2d at 665) (brackets omitted).        To be thus informed

“maintains the value of protecting the accused’s privilege to

freely choose whether or not to incriminate himself or herself,”

because “to convict a person on the basis of a statement

procured in violation of his or her constitutional rights is

intolerable.”    Ketchum, 97 Hawaii at 116-17, 34 P.3d at 1015-16

(citing Santiago, 53 Haw. at 267, 492 P.2d at 665) (brackets and

ellipsis omitted).

      We have held that the “Miranda rule” is a “constitutionally

prescribed rule of evidence that requires the prosecution to lay

a sufficient foundation” before adducing at trial evidence of

statements made by a defendant subjected to custodial

interrogation.    97 Hawaii at 117, 34 P.3d at 1016 (footnote

omitted).   If a defendant was not Mirandized before providing

such statements, then the statements may not be used either as

direct evidence or to impeach the defendant’s credibility.              See

State v. Hoey, 77 Hawaii 17, 33, 881 P.2d 504, 520 (1994).             A

defendant seeking to suppress his or her statement at trial

“must establish that his or her statement was the result of (1)

‘interrogation’ that occurred while he or she was (2) ‘in




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custody.’”    Ketchum, 97 Hawaii at 118, 34 P.3d at 1017

(citations omitted).

       There is no dispute that Kazanas, who was under arrest by

the time Officer Avilla engaged him in conversation about

Halloween, was “in custody”; therefore, we examine whether

Officer Avilla’s Halloween questions constituted

“interrogation.”

       As a preliminary matter, we clarify that determining

whether “interrogation” has taken place is not measured by the

“totality of the circumstances,” as Ketchum held; rather,

“interrogation” occurs when police know or should know that

their words or actions are reasonably likely to elicit an

incriminating response from the suspect, as Innis held.             The

United States Supreme Court in Innis addressed the situation,

similar to this case, in which a defendant was in custody, and

the only question was whether the police officers “interrogated”

him.    In other words, the Court did not address the meaning of

“custodial interrogation” as a single integrated determinant in

applying Miranda; rather, the court addressed only the meaning

of the “interrogation” prong under Miranda.           See 446 U.S. at 298

(“It is . . . uncontested that the respondent was ‘in custody’

while being transported to the police station.           The issue,

therefore, is whether the respondent was ‘interrogated’ by the

police officers in violation of the respondent’s undisputed
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right under Miranda to remain silent until he had consulted with

a lawyer.”) (footnote omitted).       The Innis Court defined “the

term ‘interrogation’ under Miranda” as “not only . . . express

questioning, but also . . . any words or actions on the part of

the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.”           446 U.S. at

301 (footnotes omitted).      Notably, the United States Supreme

Court did not reference a “totality of the circumstances”

standard for measuring when interrogation has occurred.

      This court first adopted the Innis definition of

“interrogation” in State v. Paahana, 66 Haw. 499, 666 P.2d 592

(1983).   Paahana discussed the distinction between the Innis

test for interrogation and the totality of the circumstances

test as follows:

          To be considered custodial interrogation, an officer’s
          questions or actions must be of such a nature that would
          “‘subjugate the individual to the will of his examiner’ and
          thereby undermine the privilege against compulsory self-
          incrimination.” Rhode Island v. Innis, 446 U.S. 291, 299
          (1980) (quoting Miranda v. Arizona, 384 U.S. 436, 457-58
          (1966). In determining whether the defendant’s statement
          was made in a custodial context, the totality of
          circumstances must be considered, including the time, place
          and length of the interrogation, the nature of the
          questions asked, the conduct of the police at the time of
          the interrogation, and any other pertinent factors. See
          State v. Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544
          (1982), State v. Sugimoto, 62 Haw. 259, 265, 614 P.2d 386,
          391 (1980), State v. Patterson, 59 Haw. 357, 361, 581 P.2d
          752, 755 (1978). In determining whether an officer’s
          questions constitute interrogation, the test is whether the
          officer should have known that his words and actions were
          reasonably likely to elicit an incriminating response from
          defendant. Innis, 446 U.S. at 301.


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Paahana, 66 Haw. at 502-03, 666 P.2d at 595-96 (emphasis added).

This court, like the Innis Court, made no mention of a “totality

of the circumstances” review of the officer’s words and actions

in evaluating whether “interrogation” had taken place.

Instead Paahana cited Melemai, Sugimoto, and Patterson, for the

proposition that the “totality of the circumstances” test

applies in determining when on-the-scene and/or investigative

questioning by the police develops into custodial interrogation,

in the sense that the defendant is deprived of his or her

freedom of action in any significant way.         In other words, in

Melemai, Sugimoto, and Patterson, there was no dispute that the

defendants had been interrogated by the police; at issue in

those cases was whether the defendants were “in custody” as a

result of the defendant being subjugated to the will of the

examining officer by the interrogation.

      In Melemai, a jogger was struck by a pick-up truck.           64

Haw. at 480, 643 P.2d at 485.       Eyewitnesses gave the police the

truck’s license plate number, and the police visited the

residence of the truck’s registered owner, the defendant.               Id.

Without Mirandizing him, the police asked the defendant if he

had hit anyone with his car and why.        Id.   In analyzing whether

the defendant was in custody when the police questioned him, the

Melemai court stated:


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            Since defendant was “interrogated” within the meaning of
            Miranda, the determinative issue is whether defendant was
            in custody or otherwise deprived of his freedom of action
            in any significant way. This determination is to be made
            by objectively appraising the totality of the
            circumstances. These include the place and time of the
            interrogation, the length of the interrogation, the nature
            of the questions asked, the conduct of the police, and all
            other relevant circumstances.

64 Haw. at 481, 643 P.2d at 544 (emphasis added and citations

omitted).

      Similarly, Sugimoto involved police questioning of an

individual who voluntarily came to the police station to speak

about a crime and who was not, at that time, a suspect and was

not Mirandized.     62 Haw. at 265, 614 P.2d at 391.         The defendant

later became a suspect and was charged and tried for the crime,

and he argued that “because the questioning took place at the

police station, Miranda warnings should have been given to him

even though at the time of the interrogation he was not a

suspect in the investigation.”        Id.   In other words,

“interrogation” standing alone was not at issue; rather, at

issue was whether the defendant was “in custody when he was

questioned.”    This court stated

            To determine whether custodial interrogation occurred and
            Miranda warnings were required, we must objectively examine
            the totality of the circumstances at the time of the
            questioning. Factors for our consideration include the
            time and place of the interrogation, the length of the
            interrogation, the questions asked, the behavior of the
            police officer, and any other pertinent circumstances. . .
            We hold that the fact that the questioning occurred in the
            police station is but one factor, albeit an important once,
            in deciding whether the defendant-appellant was in custody
            when he was questioned.

Id. (emphasis added).
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      Lastly, Patterson involved investigative questioning by the

police when they encountered the defendant at the scene of a

burglary in progress.       59 Haw. at 358, 581 P.2d at 366.         The

police asked the defendant if he lived at the property and

whether he had permission to be there; if he owned the car he

was standing next to; and whether personal property seen on the

front seat of the car belonged to him.           Id.   After the defendant

answered the questions in the negative, the police arrested him

upon probable cause that he committed burglary.             Id.   The

defendant successfully moved to suppress these statements,

arguing that he was not Mirandized at the time.             59 Haw. at 366,

581 P.2d at 753.      This court reversed the suppression order,

noting

            Where the police, prior to questioning the individual, are
            in possession of facts sufficient to effect an arrest
            without a warrant based upon probable cause, it is less
            likely that the person confronted would be allowed to come
            and go as he pleases. The degree of this likelihood may,
            of course, depend upon the nature and gravity of the
            offense, as well as other circumstances. In any event,
            whether the defendant was in custody or otherwise deprived
            of his freedom of action for Miranda purposes is to be
            determined from the totality of the circumstances,
            objectively appraised. These would include the place and
            time of the interrogation, the length of the interrogation,
            the nature of the questions asked, the conduct of the
            police, and all other relevant circumstances.

59 Haw. at 361, 581 P.2d at 755 (emphasis added and citations

omitted).    In short, all of these cases utilized a “totality of

the circumstances” test in determining whether defendants, who

were plainly subjected to police questioning, were “in custody.”


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In the instant case, the situation is precisely the reverse:

there is no dispute that Kazanas was “in custody” because he was

under arrest; at issue in this case is whether he was

“interrogated.”    Therefore, the “totality of the circumstances”

test does not apply to this determination.

      We recognize (as did the ICA) that this court stated in

Ketchum, “[W]hether a police officer has subjected a person to

‘interrogation’ is determined by objectively assessing the

‘totality of the circumstances.’”        97 Hawaii at 119, 34 P.3d at

1018 (citing State v. Ah Loo, 94 Hawaii 207, 210, 10 P.3d 728,

731 (2000); and Ikaika, 67 Haw. at 567, 698 P.2d at 284).               The

cases cited for the “totality of the circumstances” standard for

analyzing whether “interrogation” has taken place do not support

the Ketchum court’s statement.       Taking the older case, Ikaika,

first, we note that that case held, “As it is undisputed that

the Defendant in the instant case was in[]custody at the time

his incriminating statements were made, our inquiry will focus

on whether he was subject to interrogation.          The test is whether

the police officer should have known that his words or actions

were reasonably likely to elicit an incriminating response from

the Defendant.”    67 Haw. at 567, 698 P.2d at 284 (citing Innis,

446 U.S. at 301) (footnote omitted).        Ikaika footnoted the

“totality of the circumstances” test, listing “time, place and


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length of interrogation, the nature of the questions asked, the

conduct of the police at the time of the interrogation, and any

other pertinent factors,” but only to note that the test is used

for purposes of “determining whether Defendant’s statements were

made in a custodial context,” i.e., not for purposes of

determining whether a defendant was “interrogated.”           67 Haw. at

567 n.2, 698 P.2d at 284 n.2 (emphasis added).          Far from

adopting a “totality of the circumstances” test for

interrogation, Ikaika reaffirmed that “[t]he test” for

“interrogation” is the Innis test.        67 Haw. at 567, 698 P.2d at

284 (citing Innis, 446 U.S. at 301) (footnote omitted).

      The second case cited by Ketchum, Ah Loo, similarly does

not support the proposition that the “totality of the

circumstances” test is used in determining “interrogation.”              Ah

Loo involved facts similar to Melemai and Sugimoto, in that a

defendant was subjected to on-the-scene express questioning by

police.   In Ah Loo, the defendant was asked his age by a police

officer who encountered him at a scene where underage drinking

was suspected.    94 Hawaii at 209, 10 P.3d at 730.         The police

officer “subjected Ah Loo to ‘express questioning;’” thus, there

was no doubt Ah Loo was “interrogated.”         94 Hawaii at 210, 10

P.3d at 731.   Like Melemai and Sugimoto, and unlike the instant

case, therefore, “the outcome dispositive issue” in the Ah Loo

case was “whether Ah Loo was ‘in custody.’”          Id.   This court
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held, “To determine whether ‘interrogation’ is ‘custodial,’ we

look to the totality of the circumstances, focusing on ‘the

place and time of the interrogation, the length of the

interrogation, the nature of the questions asked, the conduct of

the police, and [any] other relevant circumstances.”             Id.

(citing, inter alia, Melemai, 64 Haw. at 481, 643 P.2d at 544;

Sugimoto, 62 Haw. at 265, 614 P.2d at 391; and Patterson, 59

Haw. at 361, 581 P.2d at 755).        In short, the statement in

Ketchum that “interrogation” is determined by looking at the

“totality of the circumstances” finds no basis in Ikaika or Ah

Loo or this court’s prior case law.4

      Further underscoring the fact that Ketchum misstated the

test for interrogation, we note that we have used the “totality

of the circumstances” test only once since Ketchum’s

publication, see State v. Naititi, 104 Hawaii 224, 236, 87 P.3d

893, 905 (2004), and mentioned it only once in passing in State

v. McKnight, 131 Hawaii 379, 392, 319 P.3d 298, 311 (2013).

Furthermore, we have continued to refer solely to the Innis test

in analyzing interrogation under Miranda without conducting or

even referring to a “totality of the circumstances” review.              See

Joseph, 109 Hawaii at 495, 128 P.3d at 808; Eli, 126 Hawaii at


4
      The Dissent acknowledges that it relies on only what it sees as an
“implicit” application of a “totality of the circumstances” interrogation
test in Innis and Ikaika in supporting Ketchum’s statement. Dissent at 5.


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522, 273 P.3d at 1208. This suggests that Ketchum’s formulation

does not constitute “the clear state of Hawaii law” on

interrogation under Miranda, contrary to the Dissent’s

assertion.5    Dissent at 3.

      There is no need to overrule Ketchum, however, because the

case properly “reaffirm[ed Innis’] principle that

‘interrogation’ consists of any express question – or, absent an

express question, any words of conduct – that the officer knows

or reasonably should know is likely to elicit an incriminating

response.”    97 Hawaii at 121, 34 P.3d at 1020.         Ketchum also

delineated the Innis principle as “the ultimate question” in

evaluating whether the police have interrogated a defendant in

custody.   97 Hawaii at 120, 34 P.3d at 1019.         We agree and

reaffirm that the touchstone in analyzing whether

“interrogation” has taken place is whether the police officer

“should have known that his [or her] words and actions were

reasonably likely to elicit an incriminating response from the

defendant.”    Paahana, 66 Haw. at 503, 666 P.2d at 595-96 (citing

Innis, 446 U.S. at 301).


5
      Further, the Dissent maintains that we “denounce” the totality of the
circumstances test in evaluating whether interrogation has occurred. Dissent
at 1, 8. We do not “denounce” the test; we simply clarify that the
appropriate test to use under a careful reading of our precedent is “whether
the officer should have known that his words and actions were reasonably
likely to elicit an incriminating response from defendant.” Paahana, 66 Haw.
at 503, 666 P.2d at 595-96 (quoting Innis, 446 U.S. at 301)


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      In this case, in analyzing whether Kazanas was

“interrogated,” the majority of the ICA relied heavily upon

Ikaika, a case in which this court held that a defendant’s

confession that he “shot the haole” to his police lieutenant

acquaintance was “of the nature of an unsolicited, spontaneous

statement made in the absence of police questioning.”            67 Haw.

at 565, 698 P.2d at 283.      Indeed, the court held the police

lieutenant’s words (“What’s happening?         Must be heavy stuff for

two detectives to bring you down here?”) were merely a

“pleasantry.” 67 Haw. at 567, 698 P.2d at 285.          Ikaika is

inapposite because under the facts of that case, Ikaika had not

been “interrogated.”     As Judge Foley noted in dissent in this

case, unlike Bartolome and Ikaika, Avilla and Kazanas were not

previously acquainted with each other.         134 Hawaii at 130, 336

P.3d at 230 (Foley, J., dissenting).        Also unlike Bartolome,

Avilla knew the circumstances behind her detainee’s police

involvement.   Id.   (Foley, J., dissenting).        Therefore, when

Avilla asked Kazanas how his night was going, her words cannot

be understood as a mere pleasantry like Bartolome’s; it was

reasonably likely that her question would have elicited

Kazanas’s incriminating statement.        This court in Ikaika noted

that Bartolome, on the other hand, “[a]t most . . . could have

expected that the Defendant respond to his pleasantry by

informing him of the reasons for the Defendant’s being booked
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and the case he was involved in.”         Ikaika, 67 Haw. at 567, 698

P.2d at 284-85.     Instead, Ikaika’s full-blown confession was, in

those circumstances, voluntary.        We agree with the dissent that

Ikaika does not govern this case.

       Rather, Kazanas’s situation is more analogous to Joseph,

109 Hawaii 482, 128 P.3d 795, and State v. Eli, 126 Hawaii 510,

273 P.3d 1196 (2012), which both involved police speaking with

non-Mirandized suspects.       In Joseph, the police engaged the

defendant in a “pre-interview,” in which they asked him

questions about his involvement in a shooting without first

reading him his Miranda rights; after the pre-interview, the

police Mirandized the defendant then audiotaped a formal

interview with him.      109 Hawaii at 484, 487, 128 P.3d at 797,

800.    The defendant was then charged with murder and firearm

offenses, and he successfully moved to suppress his pre-

interview and formal interview statements to the police.             109

Hawaii at 487-88, 492, 128 P.3d at 800-01, 805.           This court

affirmed the circuit court, holding that “it [was] evident

Miranda warnings, as independently grounded in the Hawaii

Constitution, were required prior to the pre-interview.”             109

Hawaii at 495, 128 P.3d at 808.

       Similarly, in Eli, after a defendant had turned himself in

for assaulting his daughter, he was arrested but not Mirandized,


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then invited to give “his side of the story” to an HPD detective

in a pre-interview.      126 Hawaii at 514, 273 P.3d at 1200.           This

court held that “after arrest the police practice of inviting an

arrestee to make a statement and to give his or her ‘side of the

story’ or similar entreaties in a ‘pre-interview’ before Miranda

warnings are given, violates the defendant’s right against self-

incrimination, article I, section 10, and right to due process,

article I, section 5, of the Hawaii Constitution.”            126 Hawaii

at 513, 273 P.3d at 1199 (footnotes omitted).

      Eli and Joseph both involved express police questions about

the circumstances giving rise to offenses later charged.

Kazanas’s case differs only in degree.6         In determining whether

Kazanas was “interrogated,” we look to the test articulated in

Paahana (and Eli and Joseph), which was “whether the officer

should have known that his words and actions were reasonably

likely to elicit an incriminating response from defendant.”

6
      The Dissent argues that Joseph and Eli are distinguishable from this
case, inter alia, because the pre-interviews in those cases “occurred at the
police station in an interview setting,” and “Officer Avilla asked Kazanas
general questions about his Halloween while they were waiting at the
hospital.” Dissent at 16. It is unclear why the location of the questioning
should make a difference in determining, under Innis and Paahana, “whether
the officer should have known that his words and actions were reasonably
likely to elicit an incriminating response from defendant.” Paahana, 66 Haw.
at 503, 666 P.2d at 595-96 (quoting Innis, 446 U.S. at 301). The Dissent’s
distinction wrongly suggests that a court should more readily find that
“interrogation” has taken place if questioning occurs at the police station.
That suggestion finds no support in Innis or Hawaii case law. Further, such
a rule could encourage police officers to question suspects outside the
confines of the police station in order to take advantage of a relaxed
standard for reviewing whether interrogation has occurred based simply upon
where questioning has taken place.


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Paahana, 66 Haw. at 503, 666 P.2d at 595-96 (quoting Innis, 446

U.S. at 301); Eli, 126 Hawaii at 522, 273 P.3d at 1208; Joseph,

109 Hawaii at 495, 128 P.3d at 808.        Under this test, we look to

the words and actions of the police officer, not to the totality

of the circumstances.

      The Dissent argues that the Innis analysis cannot be

performed without a totality of the circumstances review.

Dissent at 8.   There is a difference, however, between

considering the words and actions of the police officer and the

“totality of the circumstances.”         We view a “totality of the

circumstances” review as sweeping in any circumstance, without

limitation, for the court’s consideration.         See, e.g., Ketchum,

97 Hawaii at 119, 34 P.3d at 1018 (listing the following

considerations under a “totality of the circumstances” review:

“the conduct of the police, the nature of the questions asked,

and any other relevant circumstance. . . .” (emphasis added).

The Innis test itself, however, set limits on what courts should

consider in determining whether a police officer “should have

known [his or her words or actions] were reasonably likely to

elicit an incriminating response.”        446 U.S.at 302.     Those

limits were as follows:

          [T]he term “interrogation” under Miranda refers not only to
          express questioning but also to any words or actions on the
          part of the police . . . that the police should know are
          reasonably likely to elicit an incriminating response from
          the suspect. The latter portion of this definition focuses

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          primarily upon the perceptions of the suspect rather than
          the intent of the police. This focus reflects the fact
          that the Miranda safeguards were designed to vest a suspect
          in custody with an added measure of protection against
          coercive police practices, without regard to objective
          proof of the underlying intent of the police.

446 U.S. at 301 (emphasis added).        Thus, a police officer’s

words and actions evaluated under Innis would generally not

include evidence of police intent.        Conducting a “totality of

the circumstances” review to include evidence of Officer

Avilla’s intent, like the Dissent has (Dissent at 13), goes

against Innis’s express holding.

      It is true that the Innis court footnoted that police

intent may be relevant where, for example, “a police practice is

designed to elicit an incriminating response from the accused,”

as it would be “unlikely that the practice will not also be one

which the police should have known was reasonably likely to have

that effect.”   446 U.S. at 301 n.7.       In other words, evidence

that the police know that they have designed a practice

reasonably meant to elicit incriminating responses should be

relevant in analyzing whether interrogation has taken place.

That is not the case here, where evidence of Officer Avilla’s

subjective intent (that she was trying to calm Kazanas down) was

used by the Dissent to excuse the reasonable consequence of her

conduct, which was that her conversation about Halloween

elicited an incriminating response from Kazanas.           Dissent at 12.

Innis’s exception for considering police intent does not stretch

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that far.   See also Joseph, 109 Hawaii at 495, 128 P.3d at 808

(holding that “[i]nterrogation involves any practice reasonably

likely to invoke an incriminating response without regard to

objective evidence of the intent of the police,” and citing

State v. Jenkins, 1 Haw. App. 430, 437-38, 620 P.2d 263, 269

(1980), for the following statement:        “That the matron may not

have subjectively intended the question to yield a confession or

an incriminating statement is irrelevant.”) (emphasis added).

      In short, police intent is one of those circumstances that

would not be considered in reviewing a police officer’s words

and actions.   In this case, the Dissent’s conclusion that

Kazanas was not interrogated relies heavily upon Officer

Avilla’s testimony about her subjective intent: “that the

questions she asked Kazanas were made in an attempt to calm

Kazanas down, and were nothing more than small talk that did not

have to do with the investigation.” Dissent at 12.           The

Dissent’s analysis of the interrogation issue illustrates how

using the improper legal test yields an incorrect result.               The

proper test is “whether the officer should have known that his

words and actions were reasonably likely to elicit an

incriminating response from defendant.”         Paahana, 66 Haw. at

503, 666 P.2d at 595-96 (quoting Innis, 446 U.S. at 301).

      In this case, Officer Avilla took Kazanas alone to HPD’s

private room in the hospital.       Although she did not expressly
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ask Kazanas about punching Ross and smashing the car’s rear

windshield, she did ask him how his Halloween went.           As the ICA

dissent points out, Officer Avilla knew how Kazanas’s Halloween

went, as she encountered him at the tail end of his night at the

field show-up identification, and she was directed to transport

him to Queen’s Medical Center after his UEMV arrest, which had

occurred about an hour earlier.       As such, from Officer Avilla’s

stance, it was “reasonably likely” that Kazanas would answer the

question about how his Halloween went with an incriminating

statement about the events leading to Kazanas’s arrest.

Therefore, Officer Avilla “should have known that [her] words or

actions were reasonably likely to elicit an incriminating

response’ from the person in custody.”         Ketchum, 97 Hawaii at

119, 34 P.3d at 1018 (citation omitted).         In other words,

Officer Avilla subjected Kazanas to “interrogation,” without the

protection of a Miranda advisement, thus rendering inadmissible

his statement.    See Naititi, 104 Hawaii at 237, 87 P.3d at 906

(“[I]f a defendant’s Miranda rights against self-incrimination

have been violated, then any resulting statement will be

inadmissible at trial as a per se matter. . . .”)

      To conclude that Officer Avilla’s question did not

constitute “interrogation” (as the ICA majority and the Dissent

have done) would undermine Kazanas’s right against self-


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incrimination under Article I, Section 10 of the Hawaii

Constitution and encourage police officers to engage suspects in

custody in non-Mirandized and seemingly harmless conversations

about “how their night was going” in the hope that the suspects

may make incriminating statements about the events leading up to

their arrest.     As the United States Supreme Court has observed,

the Miranda warning “may serve to make the individual more

acutely aware that he is faced with a phase of the adversary

system -- that he is not in the presence of persons acting

solely in his interest.”        Miranda, 384 U.S. at 469.       In this

case, Officer Avilla was attending an arrestee at Queen’s

Medical Center; although she testified that she intended her

“small talk” to calm Kazanas down, her role as a police officer

rendered her part of a system that was adversarial to Kazanas at

that moment, and engaging in conversation at that point could

not be “solely in his interest.”           Kazanas had a right to know

that then, via a proper Miranda advisement.

      As Kazanas’s statement was procured without a proper

Miranda advisement, the circuit court erred in admitting the

statement at trial.       See Hoey, 77 Hawaii at 33, 881 P.2d at 520.

We cannot say that this error is harmless beyond a reasonable

doubt.    This case turned on the credibility of the State’s

versus Kazanas’s witnesses.        See State v. Fetelee, 117 Hawaii


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53, 86, 175 P.3d 709, 742 (2008) (“In light of the [improper

admission of evidence] and the fact that this case turns on the

credibility of [the trial witnesses], we cannot say that the

trial court’s admission of the evidence was harmless beyond a

reasonable doubt.”)     There was a reasonable possibility that the

admission of the statement contributed to his conviction.

      Lastly, we address the ICA majority’s incomplete statement

about confessions:

                The use of a criminal defendant’s voluntary
          statements and admissions as evidence at trial is a
          critical component of our criminal justice system.
          Voluntary statements and admissions are reliable. They
          provide key evidence necessary to solve crimes and
          facilitate our search for the truth. They provide
          assurance to the public that the culprit has been brought
          to justice and promote faith and confidence in our judicial
          system.

Kazanas, 134 Hawaii at 118, 336 P.3d at 218.         A defendant’s

statements are only admissible when a defendant, subjected to

custodial interrogation, is first advised of his or her Miranda

rights, and, if so advised, nevertheless voluntarily,

intelligently, and knowingly waives his or her constitutional

rights.   A defendant in custody and subjected to interrogation

has a right to be advised of the consequences of foregoing his

or her right against self-incrimination so “that there can be

any assurance of real understanding and intelligent exercise of

the privilege.”    Miranda, 384 U.S. at 469.       Then, should a

Mirandized defendant decide to waive his or her right against


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self-incrimination, the State must show that the waiver was made

“voluntarily, knowingly, and intelligently.” State v. Amorin, 61

Haw. 356, 358, 604 P.2d 45, 47 (1979).           A court reviewing such

a waiver must “examine the entire record and make an independent

determination of the ultimate issue of voluntariness based on

the totality of circumstances.”         McKnight, 131 Hawaii at 393,

319 P.3d at 312 (citations omitted).          Thus, the use of a

defendant’s statements at trial often requires a rigorous review
                                                            7
beyond a simple determination of “voluntariness.”               Therefore,

the ICA majority’s statement is incomplete.8


7
      In Eli, we explained the difference between the Miranda inquiry and the
voluntariness inquiry as follows:
            It must be emphasized that the Miranda requirement, based
            on article 1, section 10 of the Hawaii Constitution,
            requires warnings to be given prior to questioning in a
            custodial setting, while constitutional due process, based
            on article 1, section 5 of the Hawaii Constitution,
            requires a statement to be “voluntary” in order to be
            admissible. “Put differently, if a defendant’s Miranda
            rights against self-incrimination have been violated, then
            any resulting statement will be inadmissible at trial as a
            per se matter, obviating the need for any [voluntary] due
            process inquiry into whether the defendant’s confession has
            been coerced[.]” “Correlatively, having been properly
            Mirandized, if a defendant who is subjected to custodial
            interrogation makes a statement, then, depending on the
            circumstances, an inquiry into whether the defendant’s
            right to due process of law has been violated via coercion,
            may be warranted.”
Eli, 126 Hawaii at 520 n.17, 273 P.3d at 1206 n.17 (citations omitted).
8
      The Dissent defends the ICA majority’s view that Kazanas’s statement
was voluntary, asserting
            This case does not involve long periods of isolation or
            interrogation, an atmosphere of intimidation, or purposeful
            subjugation of the defendant to the will of the police
            officer. Furthermore, this case does not involve the
            “dangers of false confessions” that accompany an
            intimidating interrogation atmosphere. If anything, the
            majority’s holding in this case undermines the truth
                                                               (continued. . .)

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      B.    The Circuit Court Abused Its Discretion in
            Applying Rule 403.

      Kazanas argues on certiorari that “allowing references to

the prior aggressive conduct [i.e., punching and striking other

persons on separate occasions] was definitely prejudicial and

outweighed the probative value relating to Petitioner Kazanas’s

phsycial [sic] capabilities.”        In other words, Kazanas

challenges the circuit court’s weighing of probative value

versus prejudicial effect of the evidence under HRE Rule 403.

       “[W]hen evidence of other crimes, wrongs, and acts [under

HRE Rule 404(b)] is offered by the prosecution, the problem for


(continued. . .)
             seeking function of the judicial system by suppressing
             statements that were made without the influence of an
             interrogation atmosphere. See State v. Flores, 131 Hawaii
             43, 56, 314 P.3d 120, 133 (2013) (“Our courts are . . .
             forums for the discovery of truth.”); see also Miranda, 384
             U.S. at 478 (“Any statement given freely and voluntarily
             without any compelling influences is, of course, admissible
             in evidence.”)
Dissent at 18-19. First, the constitutional test does not require
proof of an intimidating interrogation atmosphere. The relevant
inquiry is whether Kazanas was subjected to interrogation.
      Second, the Flores case cited by the Dissent does not stand for
the proposition that suppressing statements hinders the truth-seeking
function of trial. Rather, Flores held that a jury should be
instructed of the option of convicting a defendant of a lesser included
offense in order to ascertain the truth and render an accurate verdict.
131 Hawaii at 56, 314 P.3d at 133.
      Lastly, we respectfully believe the Dissent takes the Miranda
proposition about voluntary statements out of context. The Miranda
quotation goes on to state, “There is no requirement that police stop a
person who enters a police station and states that he wishes to confess
a crime, or a person who calls the police to offer a confession or any
other statement he desires to make.” 384 U.S. at 478. The United
States Supreme Court sought to reassure law enforcement that its
decision would not render all voluntary confessions inadmissible in
evidence. Kazanas’s case does not involve a voluntary unburdening of
the offenses committed on Halloween. Rather, his statements were made
in response to Officer Avilla’s interrogation.


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the trial court is one ‘of classifying and then balancing[, if

necessary]. . . the prejudicial impact of the evidence [with]

its probative worth.’”      State v. Castro, 69 Haw. 633, 644, 756

P.2d 1033, 1041 (1988) (first set of brackets in original;

second set of brackets added).        The factors the trial court

balances are:

            the strength of the evidence as to the commission of the
            other crime, the similarities between the crimes, the
            interval of time that has elapsed between the crimes, the
            need for the evidence, the efficacy of alternative proof,
            and the degree to which the evidence probably will rouse
            the jury to overmastering hostility.

Id. (citation omitted).

      In its Response, the State argues that the balance of

Castro factors tipped in favor of admitting the prior bad act

evidence:

                  The strength of the evidence regarding the prior
            incidents was relatively substantial inasmuch as [Kazanas]
            admitted to running jumping, and punching other people.
            The similarities between [Kazanas’s] conduct at issue in
            the prior incidents and the conduct in which he engaged
            while committing the unauthorized entry into the CW’s car
            were readily apparent. The period of time between the
            prior incidents and the crime the jury convicted [Kazanas]
            of committing in the instant case also mitigated in favor
            of allowing the deputy prosecutor to question him about the
            prior incidents. The instant crime occurred after
            [Kazanas’s] fall in 2005 while he was allegedly still
            suffering from the debilitating effects of the fall. The
            record also reveals that the deputy prosecutor demonstrated
            a legitimate and compelling need for the evidence regarding
            the prior incidents, inasmuch as the evidence would refute
            [Kazanas’s] claim that he “couldn’t have done this attack
            because [he] physically [could not] attack a person[.]”
                  Moreover, the record does not reveal and [Kazanas]
            does not contend that the deputy prosecutor had more
            effective alternate proof to refute his claim regarding the
            allegedly lasting and debilitating effects of his fall.
            Significantly, there is no reason to conclude the evidence
            regarding the prior incidents “probably rouse[d] the jury
            to overmastering hostility,” inasmuch as the deputy


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           prosecutor generally limited the questions to that which
           was reasonably necessary to establish [Kazanas’s] physical
           abilities.

Further, the State argues that the jury was given a limiting

instruction on the use of the prior bad act evidence

(immediately before the prosecutor’s questioning of Kazanas

about the prior bad acts, as well as at the end of trial), which

the jury was presumed to have followed, and which dispelled any

potential for unfair prejudice to Kazanas due to the admission

of the evidence.    The State argues, “[T]he ICA concluded

correctly that ‘we cannot say that the Circuit Court abused its

discretion in balancing the probative value of the evidence

regarding the prior incidents against the risk of unfair

prejudice, in allowing the State to introduce evidence of the

prior incidents.”

      In this case, it is clear that evidence of the 2007 assault

was properly admitted under Rule 403 for all the reasons

expounded by the State above.       The 2007 assault incident

involved witness statements that Kazanas and another individual

ran up to two men, punched them in the face, then ran from

police, physical acts Kazanas testified he was incapable of

performing after the 2005 accident.        Kazanas even jumped a fence

in the 2007 incident an attempt to elude the police.

      Upon the admission of the evidence of the 2007 assault,

however, evidence of the 2006 abuse of family or household


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member incident was an abuse of discretion.         Preliminarily, it

should be noted that the 2006 abuse incident involved two sets

of prior bad acts occurring contemporaneously:         first, the

complaining witness stated that Kazanas punched her on the face,

arms, and legs; second, the complaining witness and another

witness stated that Kazanas struck the complaining witness on

the face with his cane.    It is true that the evidence of the

2006 abuse bad acts was strong (based on similar evidence as the

2007 assault incident, namely police reports and witness

statements).   Kazanas’s act of striking the complaining witness

in the face with a cane, however, was not similar to the

physical acts of punching, running, and jumping that he was

accused of in the instant case, and that he denied the physical

ability to perform after the 2005 accident.         Therefore, the

evidence was not needed.     Alternative evidence of the 2007

assault incident, which the State was allowed to present, was

more efficacious on the issue of Kazanas’s physical ability to

punch, run, and jump.    Moreover, the fact that Kazanas struck a

woman in the face with his cane carried with it the potential to

rouse the jury to overmastering hostility against Kazanas.             The

circuit court, in short, abused its discretion in weighing the

probative value versus potential prejudicial effect of the 2006

cane strike bad act evidence.



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      As to the punches to the complaining witness’s face, arms,

and legs in the 2006 abuse incident, while that evidence might

have been similar to the punch in the instant case, it was also

not needed, as the State already had been allowed to present

efficacious, alternative proof of the same physical capabilities

(i.e., evidence of the 2007 assault).        And again, evidence that

Kazanas punched a woman in the face, arms, and legs could have

potentially roused the jury to overmastering hostility against

Kazanas.   Therefore, the circuit court abused its discretion in

weighing the probative value versus potential prejudicial effect

of the 2006 punching bad act evidence.

      Consequently, the ICA erred when it held that it could not

conclude that the circuit court abused its discretion in

performing the HRE Rule 403 balancing test.          We cannot say that

this error is harmless beyond a reasonable doubt.           This case

turned on the credibility of the State’s versus Kazanas’s

witnesses.   See Fetelee, 117 Hawaii at 86, 175 P.3d at 742.

There was a reasonable possibility that the admission of the

2006 bad act evidence contributed to his conviction.

V. Conclusion

      Kazanas was subjected to interrogation when Officer Avilla

asked him about his Halloween.       Article I, Section 10 of the

Hawaii Constitution therefore required Officer Avilla to have



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advised Kazanas of his Miranda rights prior to engaging him in

the conversation.   Further, as his right against self-

incrimination was not safeguarded during the conversation with

Officer Avilla, Kazanas’s statement should have been suppressed.

Therefore, the ICA majority erred in holding that Kazanas’s

statement was voluntary and therefore admissible at trial.             With

respect to the 2006 incident, the ICA also erred in concluding

that it could not be said that the circuit court abused its

discretion in performing its HRE Rule 403 balancing in admitting

evidence of Kazanas’ prior bad acts.       The ICA’s Judgment on

Appeal and the circuit court’s Judgment of Conviction of

Probation Sentence are vacated, and this case is remanded for

further proceedings consistent with this opinion.

                                        /s/ Sabrina S. McKenna

                                        /s/ Richard W. Pollack

                                        /s/ Michael D. Wilson




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