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State v. Matsumoto

Supreme Court of Hawaii

October 29, 2019

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
KEITH T. MATSUMOTO, Petitioner/Defendant-Appellant.


          David M. Hayakawa for petitioner

          Chad M. Kumagai (Stephen K. Tsushima with him on the briefs) for respondent



          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 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.


         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.

         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.

         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 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.

         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 "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]

         Matsumoto argued that because the results of a polygraph test are inadmissible at trial under Hawai'i 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. 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 "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 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 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 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 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 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 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 Hawai'i. 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 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 "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.

(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 ...

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