____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

IN THE SUPREME COURT OF THE STATE OF HAWAII 

---o0o---

________________________________________________________________

STATE OF HAWAII, 

Respondent/Plaintiff-Appellee,

vs.

TOI NOFOA, 

Petitioner/Defendant-Appellant.

________________________________________________________________

SCWC-12-0000984 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-12-0000984; CR. NO. 08-1-1504)

April 14, 2015

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

OPINION OF THE COURT BY WILSON, J.

Three principal issues are presented in this appeal 

from Petitioner Toi Nofoa’s convictions for kidnapping and 

terroristic threatening in the second degree: 1) whether the 

circuit court erred in instructing the prosecutor to inform the 

jury during closing arguments that the complaining witness was 

unavailable because she was dead—a fact not in evidence, 2) 

Electronically Filed

Supreme Court

SCWC-12-0000984

14-APR-2015

09:06 AM
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

2

whether the admission of the complaining witness’s preliminary 

hearing testimony at trial violated Nofoa’s right to 

confrontation, and 3) whether the circuit court erred in

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

court committed error in regards to the first two issues. 

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

reasonable doubt, we vacate the judgment of the Intermediate 

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

trial. 

I. Background

A. Pretrial Proceedings

In September 2008, Nofoa was charged by complaint in 

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

terroristic threatening in the first degree in violation of 

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

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

was Nofoa’s former girlfriend.

The district court issued a “Judicial Determination of 

 

1 At the time of the offense at issue in this case, HRS § 707-

716(1)(e) (Supp. 2007) stated, “[a] person commits the offense of terroristic 

threatening in the first degree if the person commits terroristic threatening 

. . . [w]ith the use of a dangerous instrument.”

2 HRS § 707-720(1)(e) (2014) states, as it did at the time of the 

offense, “[a] person commits the offense of kidnapping if the person 

intentionally or knowingly restrains another person with intent to . . . 

[t]errorize that person or a third person[.]”
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

3

Probable Cause for the Extended Restraint of Liberty of 

Warrantless Arrestee” (JDPC) stating that there was probable 

cause to arrest Nofoa for the offense of kidnapping. An 

affidavit along with an addendum from the Honolulu Police 

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

affidavit contained hearsay statements relaying what CW told a 

HPD officer and detective regarding the alleged kidnapping and 

terroristic threatening incidents. 

In March 2009, six months after Nofoa was charged with 

kidnapping and terroristic threatening in the first degree, 

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

followed and Nofoa was acquitted of the murder and related 

charges.

Following the murder acquittal, the State filed 

notices of intent to introduce at Nofoa’s terroristic 

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

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

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

evidence, arguing that it contained inadmissible hearsay 

statements and that use of the evidence during trial would 

result in confrontation clause violations. Following a hearing, 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

4

the Circuit Court of the First Circuit (circuit court)

3 ruled in 

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

preliminary hearing testimony and the 911 call. 

The contents of the preliminary hearing testimony and 

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

related pretrial motions are discussed further below.

1. Preliminary Hearing

On September 19, 2008, about a week following the 

incident in question, CW testified at a preliminary hearing 

before the district court4 regarding the events of the evening 

leading up to Nofoa’s arrest. 

CW testified that she and Nofoa were in a relationship 

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

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

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

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

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

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

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

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

 

3 The Honorable Randal K.O. Lee presided over the hearing and over 

all other circuit court proceedings discussed herein. The Honorable Randal 

K.O. Lee also presided over Nofoa’s murder trial.

4 The Honorable Leslie Hayashi presided over the preliminary 

hearing.
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

5

his car and during the walk, Nofoa became verbally aggressive 

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

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

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

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

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

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

Nofoa then drove toward the North Shore. While he was

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

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

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

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

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

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

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

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

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

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

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

began yelling and screaming. CW testified that because she was 

resisting, Nofoa tried slamming the door while her hands and 

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

to, later identified as James Garcia, approached Nofoa’s car and 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

6

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

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

A female at the gas station, later identified as Ruby 

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

informing him that she had called the police. Nofoa then

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

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

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

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

arrived approximately ten minutes later. 

Defense counsel’s cross-examination of CW at the

preliminary hearing spanned twenty-one pages of the transcript. 

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

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

another woman. Defense counsel then questioned CW further about 

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

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

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

the altercation. Defense counsel asked if Nofoa told her their

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

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

court nor the prosecutor interrupted the cross-examination of CW 

during the preliminary hearing.
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

7

Prior to trial, the State filed a notice of intent 

to use CW’s preliminary hearing testimony based on her 

unavailability. Nofoa opposed the motion and filed a motion in 

limine to exclude the testimony, claiming that the hearing 

offered insufficient opportunity for cross-examination. At the

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

represented him at the preliminary hearing, testified that the 

only materials available to him to prepare for the hearing were 

the complaint and the JDPC. Defense counsel had not received 

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

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

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

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

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

Nofoa argued that he did not have a meaningful opportunity for 

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

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

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

statements to police prior to the preliminary hearing. 

The court allowed the admission of the preliminary 

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

afforded a full and thorough cross-examination. In reaching its 

 

3

The transcription of CW’s recorded interview was not completed 

until after the preliminary hearing. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

8

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

specifically request additional discovery and that Nofoa failed 

to demonstrate how the additional documents would have affected 

his cross-examination. 

2. 911 Call

The State also sought a pretrial ruling that the 911 

call was admissible at trial. The 911 call reflects that 

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

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

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

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

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

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

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

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

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

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

what direction the car was heading. The dispatcher concluded 

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

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

At the hearing regarding the 911 call, both

Garcia and McNeil testified about what they witnessed at the
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

9

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

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

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

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

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

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

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

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

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

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

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

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

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

McNeil’s testimony corroborated Garcia’s testimony. 

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

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

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

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

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

After arguments from the parties, the court granted 

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

admissible under the excited utterance hearsay exception and was 

nontestimonial in nature. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

10

B. Trial

During jury selection, the court noted that it did not 

want references made to the prior case in which Nofoa was 

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

identity might remind the jury of the murder case, defense 

counsel requested that the court question the jury panel to 

determine if they were familiar with the facts surrounding the 

prior case. Specifically, defense counsel sought to determine 

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

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

scene of CW’s murder:

I understand the Court’s position that the Court doesn’t 

want to refer to the murder case and I understand why, 

. . . and the reason why I’m concerned about it is last 

time when we had voir dire during the murder, the thing 

that struck me that people seemed to remember was the 

Hummer, the incident with the Hummer, and they associated 

that with [CW’s] name.

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

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

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

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

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

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

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

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

goes, okay?” 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

11

Following jury selection, the State began its case by

calling Garcia and McNeil, whose testimonies were similar to 

their testimonies at the motion hearing. Both witnesses 

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

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

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

Garcia testified that CW appeared “scared” when she first 

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

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

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

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

with you yet.’” 

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

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

testimony was also played for the jury and admitted into 

evidence over the defense’s objection. Before the preliminary 

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

speculate regarding CW’s unavailability:

[U]nder certain circumstances the law permits the court to 

receive into evidence the testimony given by a witness in 

another hearing or proceeding who is unavailable to testify 

at trial. In this case the court has determined that [CW] 

is unavailable to testify at trial. 

You are not to speculate as to the reason why [CW] is 

unavailable to testify at trial. The testimony given by 

[CW] in another hearing or proceeding has been received 

into evidence. Please bear in mind it is your exclusive 

right to determine whether and to what extent a witness 

should be believed and give weight to his or her testimony 

accordingly.
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

12

Nofoa was the only defense witness. He contended that 

CW contrived the charges to punish him for his infidelity. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

on the day of the incident. The defense rested following 

Nofoa’s testimony. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

13

Prior to closing arguments, the court repeated the 

instruction it had given the jury regarding the preliminary 

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

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

also informed the jury that the attorneys’ comments during 

closing arguments should not be considered evidence. 

During the prosecutor’s closing argument, he 

emphasized the importance of the jury’s credibility

determination in deciding the case. Regarding Nofoa’s 

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

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

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

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

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

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

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

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

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

from the preliminary hearing, highlighting the testimony that 

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

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

the gun to her neck.” 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

14

Defense counsel also emphasized the issue of 

credibility during his closing argument. Specifically, defense 

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

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

during which she did mention the gun. Defense counsel also 

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

and Nofoa had recently ended their engagement after CW 

discovered that Nofoa was unfaithful. Defense counsel then 

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

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

Nofoa testify in person:

And the question that we need to ask at this point 

is, if what [CW] is saying is true, okay, if it’s all true, 

then why does absolutely nothing back up her story? Not a 

single witness. Not a single scrap of physical evidence. 

Nothing. Okay. If her horrible kidnapping story is true, 

then why does [CW] not have any physical injuries?

. . . . 

The reason why nothing backs up her story is because 

she’s not telling the truth about how this night went down. 

You got to see [Nofoa]. You got to hear him when he 

testified. He had to answer questions from [the 

prosecutor]. And he told you what happened on that night. 

Okay.

On the other side of that coin, what do we know about 

[CW]? What do we know about her credibility? Okay. We 

know what kind of car she drives. We know she got a new 

boyfriend a month after she broke up her two and a half --

well, her two and a half year, long-term relationship broke 

up. That’s about all we know.

Okay. Because you don’t know anything about her and 

her credibility, the only thing that you can do to judge 

her credibility is to compare her story to any other 

evidence presented in the trial. That’s the only thing you 

can do, because you didn’t get to see, hear, you know, like 

you did with [Nofoa].
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

15

At this point, the circuit court interrupted defense 

counsel’s closing argument and asked the attorneys to approach 

the bench. The circuit court informed defense counsel that he 

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

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

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

to inform the jury regarding CW’s unavailability because it 

concluded that defense counsel opened the door by raising the 

issue of unavailability during his closing argument:

THE COURT: And she’s deceased. The fact of the 

matter is, you made it an issue, because you said, you said 

that he was here. You could see him testify. He could 

answer questions. She -- when you said that there was no 

evidence to back her up, that was fine. But you went over 

the line when you said you never see her testify. You 

couldn’t see how she testified.

The court stated that the appropriate remedy was to 

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

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

counsel objected, asserting that he did not believe he opened 

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

statements related to “arguing about the nature of the hearsay 

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

court sua sponte raised the issue and recommended as an 

alternative remedy to strike his comment and order the jury to 

disregard it. The court responded that “throughout the entire 

trial [the court] indicated that nobody should say why” CW was 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

16

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

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

Defense counsel continued his closing argument, and at 

the end of the argument, the court initiated another bench 

conference to further discuss its concern that defense counsel 

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

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

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

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

objected, noting that his intention in making the argument at 

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

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

at trial. Defense counsel repeated his request that the court 

strike his comment and give a curative instruction instead of 

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

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

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

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

why and how she’s deceased.” 

Consistent with the court’s direction, the prosecutor

then delivered his rebuttal. He began by introducing to the 

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

because she’s dead.” After telling the jury CW was dead, the 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

17

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

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

testimony. 

The jury found Nofoa guilty of kidnapping and 

terroristic threatening in the second degree (as an included 

offense of terroristic threatening in the first degree). The 

circuit court sentenced Nofoa to 20 years imprisonment for the 

kidnapping count and 1 year imprisonment for the terroristic 

threatening count, terms to be served concurrently. 

C. ICA Appeal

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

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

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

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

judicial bias by instructing the prosecutor to inform the jury 

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

violated when CW’s preliminary hearing testimony was admitted 

into evidence because Nofoa had an adequate opportunity to 

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

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

admitted under the excited utterance hearsay exception and was 

nontestimonial. Id. at *1-3. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

18

II. Discussion

A. The Circuit Court Abused Its Discretion by Instructing the 

Prosecutor To Introduce a Fact Not in Evidence and the 

Error Was Not Harmless Beyond a Reasonable Doubt

Nofoa asks us to find judicial bias because the 

circuit court’s actions rendered his trial fundamentally unfair. 

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

because we hold that the circuit court abused its discretion by 

instructing the prosecutor during closing argument to introduce 

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

not harmless beyond a reasonable doubt. 

A trial judge has broad discretion to control the 

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

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

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

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

“clearly exceeded the bounds of reason or disregarded rules or 

principles of law or practice to the substantial detriment of a 

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

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

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

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

court’s control of closing arguments for abuse of discretion);
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

19

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

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

Here, the circuit court abused its discretion because 

its actions permitted the prosecutor to present to the jury a 

fact not in evidence that resulted in substantial prejudice to 

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

jurisprudence analyzing the consequence of a prosecutor 

introducing facts outside the evidence during closing argument. 

Although these cases examine the issue under the framework of 

prosecutorial misconduct, they are informative here, where the 

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

introduce to the jury a fact not in evidence.

During closing arguments, prosecutors are “permitted 

to draw reasonable inferences from the evidence and wide 

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

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

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

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

improper when they go beyond the record to discuss “matters 

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

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

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

they referred to the consequences of the jury’s verdict. Id. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

20

Specifically, during closing arguments, the prosecutor stated 

that the defendant’s brother could not be successfully

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

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

was to dissuade the jurors from concluding that if they found 

the defendant not guilty, his brother could be held responsible 

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

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

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

the evidence in the record.” Id. 

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

a prosecutor’s comment during closing arguments that the 

defendant lied to the police bypassed evidentiary rules and was 

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

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

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

fact not presented at trial is referenced by the prosecutor 

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

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

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

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

first time—which had intentionally not been presented during 

trial by either party. Indeed, the circuit court specifically 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

21

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

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

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

In addition, during jury selection, the court demonstrated 

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

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

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

prospective jurors. Nonetheless, the circuit court reversed its 

position during closing arguments, instructing the prosecutor to 

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

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

The court directed the prosecutor to inform the jurors of a

prejudicial fact not in evidence despite defense counsel’s 

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

Because we cannot conclude that the introduction of 

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

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

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

possibility that the error complained of might have contributed 

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

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

 

5 We need not reach the question of whether defense counsel opened 

the door during his closing argument. Even assuming the “opening the door”

doctrine would be applicable in this context, the remedy of introducing CW’s 

death was inappropriate. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

22

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

possibility, then the error is not harmless beyond a reasonable 

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

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

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

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

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

the error complained of might have contributed to the 

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

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

reasonable possibility that the circuit court’s error

contributed to Nofoa’s conviction. 

For one, there is a reasonable possibility that the 

introduction of the fact not in evidence allowed the jury to 

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

substantial prejudice to Nofoa. The State contends such an 

inference was unlikely. However, given the evidence adduced at 

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

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

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

given the effect to which the whole record shows it is 

entitled’” (quoting State v. Heard, 64 Haw. 193, 194, 638 P.2d 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

23

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

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

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

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

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

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

Nofoa indeed acted on his threat to fatally harm CW.

Moreover, during the State’s closing argument, the 

prosecutor emphasized the testimony regarding Nofoa’s threats to 

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

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

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

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

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

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

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

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

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

gun in his possession.

Under these circumstances, it would have been 

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

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

circuit court’s error resulted in a risk of undue prejudice to 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

24

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

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

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

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

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

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

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

action in conformity therewith.”).

The timing of the introduction of the fact not in 

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

prosecutor’s argument is likely to have significant persuasive 

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

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

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

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

heard by the jury prior to deliberations, further exacerbating 

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

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

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

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

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

prosecutorial comments are looked upon with special disfavor 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

25

when they appear in the rebuttal because at that point defense 

counsel has no opportunity to contest or clarify what the 

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

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

The lack of a limiting instruction also compounded the 

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

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

considered as evidence of Nofoa’s guilt in the terroristic 

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

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

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

instruction with regard to prior convictions” results in error

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

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

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

for unfair prejudice related to evidentiary issue “dispelled by 

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

 

6 Prior to closing arguments, the circuit court did instruct the 

jury that arguments of counsel were not evidence. However, given the generic 

nature of the instruction and that the court provided no specific instruction 

in relation to the prosecutor commenting on CW’s death, the court’s 

instruction failed to mitigate the prejudice to Nofoa. See State v. Rogan, 

91 Hawaii 405, 415, 984 P.2d 1231, 1241 (1999) (holding instruction to jury 

that counsels’ arguments were not evidence did not “negate[] the prejudicial 

effect” of the prosecutor’s inflammatory comments); State v. Marsh, 68 Haw. 

659, 661, 728 P.2d 1301, 1302-03 (1986) (holding prejudicial effect of 

prosecutor’s comment not “rendered harmless” by court’s general instruction 

“that the arguments of counsel are not evidence”). 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

26

Moreover, the circuit court’s direction to the 

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

prior unavailability instruction—twice given—that the jury not 

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

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

death in closing heightened the potential for juror confusion 

and prejudice to Nofoa. 

For the foregoing reasons, we conclude that the 

circuit court abused its discretion in instructing the State to 

introduce a fact not in evidence and there is a reasonable 

possibility that the error might have contributed to Nofoa’s 

conviction. 

B. Admission of CW’s Preliminary Hearing Testimony at Trial 

Resulted in a Confrontation Clause Violation Requiring 

Remand

Nofoa additionally contends that the ICA erred when it 

found that the preliminary hearing provided him with an 

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

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

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

Instead we hold that in this case, because only limited 

discovery was provided to Nofoa at the preliminary hearing, and 

later discovery contained significant inconsistencies, the 

preliminary hearing did not provide a meaningful opportunity for 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

27

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

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

Constitution and the sixth amendment of the United States 

Constitution. Because this error was not harmless beyond a 

reasonable doubt, it provides an independent basis for vacating 

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

trial.

7 

The confrontation clauses of article I, section 14 of 

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

States Constitution require that “[i]n all criminal 

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

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

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

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

confrontation clause of the sixth amendment, unless the witness 

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

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

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

testimonial hearsay [is] governed by the following standard: 

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

testimonial statement is admissible for the truth of the matter 

 

7 “‘We review questions of constitutional law de novo, under the 

right/wrong standard.’” State v. Kalaola, 124 Hawaii 43, 49, 237 P.3d 1109, 

1115 (2010) (quoting Jou v. Dai–Tokyo Royal State Ins. Co., 116 Hawaii 159, 

164–65, 172 P.3d 471, 476–77 (2007)). 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

28

asserted only if the defendant was afforded a prior opportunity 

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

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

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

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

“the hearsay declarant is cross-examined at trial about the outof-court statement.” Id. at 523, 168 P.3d at 975. In so 

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

supported the proposition that “sufficient cross-examination of 

the hearsay declarant at trial terminated the [confrontation 

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

concluded that Fields was “afforded a meaningful opportunity” to 

cross-examine the witness at trial regarding the subject matter 

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

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

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

our discussion in Fields acknowledges that the right to confront 

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

instead, that the cross-examination must be sufficient and 

meaningful. 

Preliminary hearing testimony constitutes testimonial 

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

admissibility laid out in Crawford and Fields. Fields, 115
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

29

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

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

of CW’s preliminary hearing testimony rests on whether the 

preliminary hearing provided Nofoa with a sufficient and

meaningful opportunity for cross-examination. 

Post-Crawford and Fields, our court has not developed

a standard to determine under what circumstances crossexamination at a preliminary hearing provides the defendant with 

a sufficient opportunity to confront a witness. To advance such 

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

cases from other jurisdictions that examined the issue postCrawford. 

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

preliminary hearing transcript was admissible at trial where 

cross-examination of the witness at the preliminary hearing had 

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

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

that the cross-examination was not sufficient because a

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

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

of allowing unrestricted cross-examination at the preliminary 

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

permit the counsel for a defendant to examine fully and 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

30

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

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

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

(1984), we questioned the admissibility of preliminary hearing 

testimony at trial where the defendant did not have access to 

relevant discovery during the preliminary hearing. In Toledo, 

during the preliminary hearing at issue, the trial judge denied 

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

State witness. Id. Toledo filed a writ of prohibition midhearing arguing, inter alia, that she was denied the opportunity 

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

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

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

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

full and thorough unless counsel is permitted access to the 

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

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

acknowledged that while discovery issues are within the judge’s 

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

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

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

State may well prevent its later use of the witness’ [sic]
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

31

preliminary hearing testimony if the witness is unavailable at 

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

In Faafiti and Toledo, we recognized two relevant 

factors in determining the admissibility of preliminary hearing 

testimony at trial: 1) the restrictions placed on the crossexamination by the trial court, and 2) the discovery available

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

effectiveness of cross-examination. These factors have also

been recognized by other jurisdictions post-Crawford as relevant 

in determining whether sufficient opportunity for crossexamination is afforded during preliminary hearings, and in turn 

whether preliminary hearing testimony is admissible at trial.

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

Court considered the admissibility of preliminary hearing 

testimony at trial, and found that the testimony was admissible 

where the defendant was able to engage in “wide-ranging crossexamination” during the preliminary hearing when “nearly all the 

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

curiam). The court specifically noted that during the 

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

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

question the witness about the alleged incident of sexual abuse. 

Id. The court also recognized that the magistrate judge who 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

32

presided over the preliminary hearing provided the defendant 

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

specifically noting that there was no evidence of any 

“inappropriate restrictions on the scope” of the crossexamination placed by the judge. Id. Accordingly, the court 

held that the defendant was permitted to exercise his right to 

confrontation: “Therefore, in this instance, because the 

discovery was almost entirely complete and the magistrate judge 

allowed [the defendant] unrestricted opportunity to confront 

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

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

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

testimony at trial.” Id. at 485-86.

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

Illinois considered several factors in determining that the 

defendant did not have an adequate opportunity for crossexamination of the prosecution’s key witness during the 

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

First, the court considered the motive and focus of the 

examination at the preliminary hearing, concluding that at both 

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

the evidence supports a finding that the defendant committed the 

charged crime.” Id. at 931. The court noted, however, that 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

33

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

resolution” of the case. Id. at 932. 

Thus, the court considered two additional factors: 

defense counsel’s knowledge at the time of the crossexamination, including access to discovery; and the court’s 

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

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

of the preliminary hearing, Torres argued that his counsel did 

not have an adequate opportunity for cross-examination, because 

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

reports,” which contained the prosecution witness’s statements

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

statements the witness made to police that were inconsistent 

with his preliminary hearing testimony. Id. The court agreed 

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

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

gave to police, statements that counsel might have used to 

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

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

additionally took issue with the trial court’s restrictions on 

counsel during the cross-examination, noting that the trial 

court had sustained objections to defense counsel’s crossexamination that inhibited his ability to adequately cross-
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

34

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

the trial court erred in admitting the preliminary hearing 

testimony at trial. Id.

We recognize that some jurisdictions have endorsed a 

complete ban on the use of preliminary hearing testimony at 

trial, while others have been more permissive of the inclusion 

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

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

(holding preliminary hearings in Colorado do not provide

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

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

hearing testimony did not violate the sixth amendment where

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

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

approach of Chavez and Torres and consider the admissibility of 

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

Drawing from these cases, in order to determine 

whether Nofoa had a sufficient and meaningful opportunity for 

cross-examination at the preliminary hearing, we consider the 

following factors: 1) the motive and purpose of the crossexamination, 2) whether any restrictions were placed on Nofoa’s

cross-examination during the preliminary hearing, and 3) whether 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

35

Nofoa had access to sufficient discovery at trial to allow for 

effective cross-examination of CW. 

The first two questions weigh in favor of 

admissibility. First, the motive and purpose of Nofoa’s crossexamination of CW at the preliminary hearing was sufficiently 

similar to the motive and purpose Nofoa would have had to crossexamine CW at trial, i.e., to discredit the State’s case and 

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

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

preliminary hearing. The cross-examination spanned twenty-one

pages of the transcript and the court did not interrupt during 

the questioning nor did the State make any objections.

However, we agree with Nofoa that in relation to the 

third factor, he was denied the opportunity for meaningful

cross-examination because he did not have access to relevant 

discovery materials that would have assisted in the crossexamination of CW. We have recognized that access to witness 

statements may be relevant to determine whether the opportunity 

for cross-examination at a preliminary hearing was sufficient. 

See Toledo, 67 Haw. at 22, 675 P.2d at 775 (“Normally, a crossexamination cannot be full and thorough unless counsel is 

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

the matters on which the witness is testifying . . . .”); see 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

36

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

preliminary hearing was “not privy” to certain statements given 

by the witness to support holding that preliminary hearing 

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

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

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

statements, including her handwritten HPD-252 statement, a

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

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

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

911 call at the time of the preliminary hearing. 

Access to these discovery materials would have enabled 

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

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

there were inconsistencies and/or discrepancies between CW’s

preliminary hearing testimony and her earlier statements. For 

example, at the preliminary hearing, CW testified that Nofoa 

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

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

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

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

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

statement and the thirty-two-page recorded interview, CW stated 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

37

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

another guy,” she answered Nofoa in the affirmative. 

Had Nofoa’s counsel been aware of these discrepancies, 

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

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

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

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

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

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

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

improperly admitted during the prosecutor’s rebuttal argument, 

the latter issue was of particular importance, as discussed 

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

relation to the unavailable discovery, the admission of the 

preliminary hearing testimony at trial violated Nofoa’s right to 

confrontation as guaranteed by article I, section 14 of the 

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

Constitution. 

Thus, we hold that the circuit court erred in allowing 

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

additionally hold that the error was not harmless beyond a 

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

P.3d 1126, 1155 (2009) (holding constitutional error may be 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

38

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

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

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

error was harmless beyond a reasonable doubt because CW’s 

preliminary hearing testimony was a crucial piece of evidence 

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

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

only evidence to support the State’s first degree terroristic 

threatening case.

8 Although Garcia’s and McNeil’s testimony and

the 911 call provided evidence corroborating some of the 

preliminary hearing testimony, we believe there is at least a 

reasonable possibility that the preliminary hearing testimony 

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

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

because the case involved a credibility determination between CW 

and Nofoa, and CW’s preliminary hearing testimony directly 

conflicted with Nofoa’s testimony at trial. Accordingly, 

because there is a reasonable possibility that the admission of 

 

8 The jury found Nofoa guilty of the lesser included offense of 

terroristic threatening in the second degree, which did not require the use 

of “a dangerous instrument.” Compare HRS § 707-716(1)(e) (Supp. 2007) (“A 

person commits the offense of terroristic threatening in the first degree if 

the person commits terroristic threatening . . . [w]ith the use of a 

dangerous instrument.”) with HRS § 707-717(1) (2014) (“A person commits the 

offense of terroristic threatening in the second degree if the person commits 

terroristic threatening other than as provided in section 707-716.”). 

Notwithstanding, the importance that the State placed on the 

preliminary hearing testimony is evinced by its decision to charge Nofoa with 

the first degree crime. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

39

the preliminary hearing testimony at trial might have 

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

court for a new trial.

9 

C. The 911 Call Was Properly Admitted as a Hearsay Exception 

and Did Not Result in a Confrontation Clause Violation

With the purpose of providing guidance to the circuit 

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

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

Hawaii at 112, 319 P.3d at 1120. 

Nofoa contends that the circuit court erred in 

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

excited utterance hearsay exception; and 2) it was testimonial 

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

violated his right to confrontation.

10 We disagree. 

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

relating to a startling event or condition made while the 

 

9 Because we find error in the court’s admission of the preliminary 

hearing testimony, we need not reach Nofoa’s argument that the court abused 

its discretion in providing a recording of the preliminary hearing testimony 

to the jury during deliberations. However, we note that the trial court is 

not required to provide all evidence admitted at trial to the jury during 

deliberations. See, e.g., State v. Kassebeer, 118 Hawaii 493, 506, 193 P.3d 

409, 422 (2008) (reviewing trial court’s decision to allow handgun that was 

admitted into evidence into jury room for abuse of discretion).

 

10 We review both questions de novo under the right/wrong standard. 

See State v. Moore, 82 Hawaii 202, 217, 921 P.2d 122, 137 (1996) (“[W]here 

the admissibility of evidence is determined by application of the hearsay 

rule, there can be only one correct result, and ‘the appropriate standard for 

appellate review is the right/wrong standard.’” (quoting Kealoha v. County of 

Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 675 (1993))); Kalaola, 124 Hawaii at 

49, 237 P.3d at 1115 (holding constitutional questions reviewed de novo under 

the right/wrong standard). 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

40

declarant was under the stress of excitement caused by the event 

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

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

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

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

the statement was made while the declarant was under the stress 

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

statement relates to the startling event or condition.” 109 

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

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

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

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

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

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

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

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

dispatcher, McNeil described CW’s emotional state as 

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

circumstances surrounding the 911 call, this testimony 

demonstrates that CW’s statement was not the product of 

reflective thought and instead constituted an excited utterance. 

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

170 (2010) (citing evidence that complainant was “‘shaken’” 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

41

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

complainant’s “mental and physical condition supports the 

prosecution’s argument that her statement was an excited 

utterance”).

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

confrontation is also unavailing. To be subject to the 

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

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

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

“‘nontestimonial when made in the course of police interrogation 

under circumstances objectively indicating that the primary 

purpose of the interrogation is to enable police assistance to 

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

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

Testimonial statements, in contrast, involve circumstances that 

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

and that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later 

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

CW’s statements during the 911 call were 

nontestimonial because “any reasonable listener would recognize

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

of the call was to request police assistance. Davis, 547 U.S. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

42

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

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

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

police protection and CW was still facing the threat of violence 

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

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

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

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

a purpose of finding Nofoa to prevent further harm or stated 

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

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

at 827. 

Because CW’s statements were nontestimonial, the twopart test from Ohio v. Roberts, 448 U.S. 56 (1980), applies. 

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

reaffirm Roberts’ continued viability with respect to 

nontestimonial hearsay.”).

11 Under Roberts, a nontestimonial 

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

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

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

previously noted, CW’s unavailability is undisputed. Regarding 

 

11 Roberts was abrogated by Crawford but is still applicable in 

relation to nontestimonial hearsay. Fields, 115 Hawaii at 516, 168 P.3d at 

968. 
____*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***____

43

the second requirement, CW’s 911 call statements were 

sufficiently reliable because they fell “‘within a firmly rooted 

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

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

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

911 call was admissible.12 

III. Conclusion

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

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

judgment of conviction and sentence are vacated. This case is 

remanded to the circuit court for a new trial.

Craig W. Jerome and /s/ Mark E. Recktenwald

Susan L. Arnett

for petitioner /s/ Paula A. Nakayama

Sonja P. McCullen /s/ Sabrina S. McKenna

for respondent

/s/ Richard W. Pollack

/s/ Michael D. Wilson

 

12 We also agree with the ICA that “Nofoa fails to prove that 

portions of the 911 call were inadmissible on other grounds.” Nofoa, SDO at 

*3.