State v. Valeros. Â , 126 Haw. 370 ( 2012 )

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Electronically Filed
Supreme Court
SCWC-29044
27-JAN-2012
11:17 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
BRANDON VALEROS, Petitioner/Defendant-Appellant.
NO. SCWC-29044
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29044; CR. NO. 06-1-2281)
January 27, 2012
RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold in this case that the failure of Plaintiff-
Appellee State of Hawai#i (the prosecution) to disclose an alibi-
rebuttal witness was a violation of Hawai#i Rules of Penal
Procedure (HRPP) Rule 12.1,1 even though the witness had been
1
HRPP Rule 12.1 (2007) provides, in relevant part as follows:
(a) Notice by Defendant. If a defendant intends to
rely upon the defense of alibi, the defendant shall, within
the time provided for the filing of pretrial motions or at
such later time as the court may direct, notify the
prosecutor in writing of such intention and file a copy of
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previously listed as the alibi witness of Petitioner/Defendant-
Appellant Brandon Valeros (Defendant), but apparently unbeknownst
to Defendant became the prosecution’s witness. Hence, in the
absence of a showing of good cause under HRPP Rule 12.1(f) for
granting an exception to the requirements of HRPP Rule 12.1, it
was error for the circuit court of the first circuit2 (the court)
to allow that witness to testify in order to rebut Defendant’s
alibi defense. For the reasons stated herein then, we vacate the
court’s February 5, 2008 judgment of conviction and sentence of
such notice with the court.
(b) Disclosure of Information and Witnesses. Upon
receipt of notice that the defendant intends to rely upon an
alibi defense, the prosecutor shall inform the defendant in
writing of the specific time, date, and place at which the
offense is alleged to have been committed. The defendant
shall then inform the prosecutor in writing of the specific
place at which the defendant claims to have been at the time
of the alleged offense and the names and addresses of the
witnesses upon whom the defendant intends to rely to
establish such alibi. The prosecutor shall then inform the
defendant in writing of the names and addresses of the
witnesses upon whom the government intends to rely to
establish defendant's presence at the scene of the alleged
offense.
. . . .
(d) Continuing Duty to Disclose. If prior to or
during trial, a party learns of an additional witness whose
identity, if known, should have been included in the
information furnished under section (b) of this rule, the
party shall promptly notify the other party or the party’s
attorney of the existence and identity of such additional
witness.
(e) Failure to Comply. Upon the failure of either
party to comply with the requirements of this rule, the
court may exclude the testimony of any undisclosed witness
offered by such party as to the defendant's absence from, or
presence at, the scene of the alleged offense. This rule
shall not limit the right of the defendant to testify in the
defendant’s own behalf.
(f) Exceptions. For good cause shown, the court may
grant an exception to any of the requirements of this rule.
(Emphases added.)
2
The Honorable Virginia L. Crandall presided.
2
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Defendant and the Intermediate Court of Appeals’s (ICA) June 3,
2011 judgment filed pursuant to its May 16, 2011 Summary
Disposition Order3 affirming the February 5, 2008 judgment, and
remand the case for a new trial.
I.
On November 6, 2006, Defendant allegedly assaulted
Kenneth Ring, the complaining witness (CW), with a collapsible
metal baton outside the “Exotic Nights” nightclub (Exotic
Nights), near the Ward Avenue and Halekauwila Street intersection
in Honolulu. On November 13, 2006, Defendant was charged by
Felony Information with Assault in the Second Degree, HRS § 707-
711(1)(d) (Supp. 2006).4
A.
The following essential matters, some verbatim, are
from the record and the submissions of the parties.
On March 20, 2007, before trial,5 Defendant filed a
Notice of Alibi pursuant to HRPP Rule 12.1. The prosecution
replied that it would rely on CW and CW’s friend Robert Miller
(Miller), who was with CW on the night in question, to establish
that the offense was “committed on November 6, 2006, at
3
State v. Valeros, No. 29044, 2011 WL 1909109 (Haw. App. May 16,
2011). The SDO was filed by Presiding Judge Daniel R. Foley and Associate
Judges Alexa D.M. Fujise and Katherine G. Leonard.
4
HRS § 707-711(1) provides in relevant part: “(1) A person commits
the offense of assault in the second degree if[] . . . . (d) [t]he person
intentionally or knowingly causes bodily injury to another person with a
dangerous instrument[.]”
5
Trial was originally scheduled to commence on June 25, 2007, but
was continued. Trial began on November 9, 2007.
3
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approximately 2:20 a.m.[,] at or near the intersection of
Halekau[w]ila Street and Ward Avenue[.]” On April 11, 2007,
Defendant filed a response, stating that on the date and time of
the offense, Defendant was in the “Club Electro” (Club Electro)
parking lot in Pearl City, Oahu, with alibi witnesses Jamison
Benavides (Benavides) and Timothy Santiago (Santiago). Defendant
provided addresses and phone numbers for these witnesses.
Defendant’s trial counsel declared that on June 15,
2007, the prosecution informed the court and Defendant that it
was having difficulty contacting Defendant’s alibi witnesses. On
July 18, 2007, David Lee, an investigator for the prosecution
(investigator), visited Santiago in the Kalihi area on Oahu and
obtained a verbal statement from him, which the prosecution
apparently believed rebutted Defendant’s alibi. Santiago refused
to give a written statement. The prosecution did not notify or
disclose this information to Defendant.
According to Defendant’s trial counsel’s later
declaration in support of Defendant’s motion for a new trial, on
August 24, 2007, the prosecution informed the court and opposing
counsel that it could not confirm the alibi and that the
prosecution would be proceeding to trial. Then, “[a]t a
scheduling conference prior to trial,” on November 6, 2007,
Defendant informed all parties that he would only call Benavides
because Defendant could no longer locate Santiago.
4
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However, at the November 15, 2007 post-trial conference
to settle jury instructions, the prosecution disclosed that
within “two days” of being informed that Defendant could not
locate Santiago, Santiago was discovered on the Big Island, and
“was [thereafter] returned to Oahu to testify in [Respondent’s]
rebuttal case.” The record does not reflect the exact dates when
Respondent located Santiago on the Big Island (as opposed to July
18 in the Kalihi area on Oahu), but “two days” from the time
Defendant told the prosecution that Santiago could not be located
would have fallen on November 8, 2007.
B.
1.
On November 8, 2007, jury selection commenced. The
case proceeded to trial the next day, November 9, 2007.
During its opening statement, the prosecution told the
jury that the evidence would show that Defendant committed the
charged offense, and that Defendant would be relying on an alibi
defense:
Now we expect that the defense which is under no obligation
to put on any defense at all but will present witnesses that
will say that [Defendant and his associates] weren’t [at the
scene], so-called alibi witnesses, but those very witnesses
are Jamison Benavides and perhaps Timothy Santiago which the
State will show are simply not believable witnesses and have
every reason to make up this story, to make up this alibi,
[sic] will not be credible.
During his opening statement, Defendant told the jury that at the
time of the incident, Defendant was “miles away in Pearl City
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. . . with his own friends, doing his own thing, having his own
fun.”
2.
At trial, CW testified that around 10:30 or 11:00 p.m.
on November 6, 2006, he and two associates, Miller and Durham,
went to club “Femme Nu” (Femme Nu) where they had four to five
drinks. Approximately three hours later, CW and his friends went
to Exotic Nights, located on Ward Avenue. CW testified that he
was not “completely intoxicated” but had a “buzz.” After
spending fifteen minutes at Exotic Nights, the trio left and
walked towards Ward Avenue, near Sports Authority, to hail a
taxi.
As CW and his two friends were walking, they saw a
“flat bed pickup truck with two gentlemen on the back” and one
man in the front cabin. The truck stopped approximately twelve
feet from CW, and three men exited the vehicle. When the men,
whom CW described as “Polynesian, maybe Samoan,” were about ten
feet away, one of them deployed a metal baton. Miller and Durham
ran away, but CW sat on the sidewalk “right in front” of the
pickup truck and watched the men chase his friends.6
After chasing Miller and Durham for about five seconds,
the three men returned to the truck and saw CW. The man holding
6
CW’s friends were Caucasian; CW, who was half white and half
Asian, felt that he could avoid any confrontation.
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the collapsible metal baton7 approached CW and asked him if he was
“looking for trouble.” CW said he was looking for a taxi, and
the man struck CW on the head with the baton saying, “Don’t go
looking for trouble.” CW believed that he suffered a slight
concussion. The men then drove off and Durham and Miller called
the police.
Officer Tanita testified that he responded to a call
around 2:23 in the morning requesting assistance regarding an
incident on Ward Avenue. When Officer Tanita arrived at the
scene, CW said that a man had “hit” him. CW then gave Officer
Tanita a description of the assailant.
There were some discrepancies between the description
of the assailant noted by Officer Tanita and that offered by CW
during trial. At trial, CW testified that he verbally told
Officer Tanita that his assailant was a large Polynesian male,
approximately five feet nine inches to five feet ten inches in
height, weighing approximately 200 to 220 pounds, who had
“tribal” tattoos “running down both sides of his arms and that he
also had a chain.” He denied telling Officer Tanita that the
suspect had long hair. CW also testified that he told Officer
Tanita that he believed the truck in which his attacker and the
other men had ridden was a black Ford pickup truck.
7
CW testified that he was familiar with collapsible batons. He
testified that a collapsible baton is six inches in length, can expand to 12
or 16 inches, and can have three or four sections.
7
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Officer Tanita testified that, after hearing CW’s
version of events, he filled out a “252” statement8 because CW was
not “calm” enough to write it himself. Officer Tanita recalled
that CW told him that the vehicle in which four (not three) male
suspects rode was a black Ford “F150,” and that the man who
struck CW was a local “Polynesian,” five feet nine inches tall,
who was wearing a white shirt. Officer Tanita remembered that CW
did not mention that the suspect had earrings, piercings on his
face, floppy shoelaces, or a chain hanging from his clothing.
Officer Tanita could not recall if CW told him that the suspect
had tattoos. Officer Tanita indicated, however, that he may have
been mistaken about the description because he “[u]sually . . .
ha[s] eight to a dozen” reports to fill out in a night. Officer
Tanita stated CW appeared to be under the influence of alcohol,
but seemed coherent.
At the scene, CW’s friend Miller also provided a
description of the assailant and completed a “252" statement.
At trial, Miller admitted that in his 252 statement he indicated
that the suspect had black hair and was wearing shorts. He did
not say that the suspect had tattoos. He also stated, “[w]e may
be able to identify but it would be difficult. I was not able to
get the license plate number. My opinion is that it was . . .
[a] short bed pickup truck with a bedliner.”
8
According to Officer Tanita, a “252" statement is an “official
statement form which the victim . . . writes their [sic] statement of what
happened[.]”
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After giving a statement to the police, Miller caught a
taxi with CW and Durham back to Waikiki. Miller then decided to
go to club “Zanzabar” (Zanzabar). As he was walking toward
Zanzabar, Miller noticed that the men “that were involved with
the assault on [CW] were just standing there.” Miller then
walked over to a police officer and told the officer that the men
had assaulted his friends. The officer then asked the two men
“to come with [him].” A third suspect, later identified as
Benavides, was apprehended by a second officer.
According to Miller, the officers then drove him to
CW’s hotel. At approximately 5:00 a.m., CW and Miller were
separately brought to a three person field show-up9 in Waikiki,
consisting of Defendant, Benavides, and Santiago. CW identified
Defendant as his attacker. After Defendant was arrested, an
officer searched Defendant but did not find any weapons or
batons.
Miller then completed another “252" form. At trial, he
acknowledged that in his “252" form he did not indicate that the
suspect had orange hair, big boots, jeans, a “hippy chain” or
tattoos. Nonetheless, Miller testified that he “remember[ed]”
“very clear[ly]” the man that hit CW, and described him as having
“orange hair, a black shirt, a hippy chain, big boots, and
jeans.” According to Miller, the assailant was a “heavyset
9
A showup is “a pretrial identification procedure in which a
suspect is confronted with a witness or the victim of the crime.” B LACK ’ S L AW
D ICTIONARY 1506 (9th ed. 2009).
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Polynesian,” “probably 250 pounds[,]” that had “tattoos up and
down on his arms[.]”
3.
Defendant and his friend Benavides also testified at
trial to their version of the events. According to Benavides,
who was six feet and 290 pounds, on the night in question he
drove himself, Defendant, Santiago and his friend Ryan Yamashita
[(Yamashita)] in a Honda Civic to Club Electro.” Benavides
testified he did not own a truck.10
After leaving Club Electro at approximately 2:00 a.m.,
the men smoked cigarettes in the club’s parking lot. Benavides
then drove Defendant, Yamashita, and Santiago in his Honda Civic
to the “Big Kahuna” nightclub (Big Kahuna) in Waikiki. He
traveled down Kamehameha Highway, entered the H-1 freeway, and
took the King Street exit to Kapahulu. He did not stop anywhere
between Club Electro and Waikiki, and parked by the zoo. Upon
leaving Big Kahuna, Yamashita left the group. The three
remaining men were then stopped by the police and were told to
sit down because they were being placed in a lineup.
Defendant’s testimony was consistent with that of
Benavides. Defendant, who was five feet nine inches tall and
weighed 320 pounds, testified that on the night in question he
was wearing a black shirt, cut off jeans, and combat boots with
10
However, he owned a “tow truck” that has “the equipment for towing
and whatnot in it.” He owned, and ran, “Kinetic Towing.”
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red laces that laced up to the bottom of his calf. His hair was
almost white, or bleach blonde with streaks, and he had a goatee
down to the bottom of his chin. He had seven earrings and two
piercings on his lips. On the night in question, he had been
carrying a chain wallet connecting his wallet to his belt loop.
He also had tattoos, consisting of a “skull with a dagger,
covered in spider webs[,]” “random old school style tattoos[,]”
“a man engulfed in flames, and a woman.”
Defendant testified that after spending some time in
Waikiki, he was walking back to Benavides’s vehicle when one of
his friends pulled up with a tow truck. Defendant talked to his
friend for a second, and when Defendant turned around, the police
asked him to step away from the vehicle. Defendant also
testified that he had never been to Exotic Nights and did not
know where it was located, was not in the area of Ward and
Halekauwila on the night in issue, had never seen CW prior to
seeing him in court, had never held a baton, and never struck CW.
II.
On November 14, 2007, during the testimony of the
prosecution’s last witness, the court recessed trial for fifteen
minutes. According to the declaration of Defendant’s trial
counsel, at that point, “the court met in chambers with both
parties[.]” The prosecution stated that it would object if
Defendant was allowed to present his case on the following day
because a “‘rebuttal’ witness [the prosecution] had flown in” was
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scheduled to fly out that day. “It was only at this time the
defense learned [the prosecution] had intended to call []
Santiago” to “rebut [Defendant’s] alibi.”
After the testimony of the last witness, the
prosecution rested and the court released the jury for its lunch
break. When the jury was no longer in the courtroom, Defendant
orally moved for a judgment of acquittal, which the court denied.
Defendant then asked that the prosecution make Santiago available
for Defendant’s counsel to speak to him. Counsel was concerned
that, if Santiago’s testimony was inconsistent with what he had
previously related to counsel, counsel might have to become a
witness to rebut Santiago’s testimony and, as a consequence,
counsel would have to move for a mistrial.11 Defendant’s counsel
was permitted to speak to Santiago.
After talking to Santiago, Defendant objected to the
prosecution calling Santiago to testify as a rebuttal witness, as
a violation of HRPP Rule 12.1. Defendant maintained that the
prosecution was required to give Defendant “written notice and
[the] contact information of the names of people [the
prosecution] intend[ed] to call.” Defendant also objected on the
ground that Santiago was not a proper rebuttal witness because
11
During this exchange, it also appears that Defendant sought to
compel the prosecution to turn over Santiago’s statement under HRPP Rule
16(b)(1) (requiring the prosecution to disclose “the names and last known
addresses of persons whom the prosecutor intends to call as witnesses in the
presentation of the evidence in chief, together with any relevant written or
recorded statements”). The court denied the request to turn over the
statement. Since other issues are dispositive in this case, we need not
address HRPP Rule 16.
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Defendant believed Santiago’s testimony would reinforce
Defendant’s alibi. The prosecution replied that it did not have
to disclose Santiago because Santiago had been disclosed to the
prosecution by Defendant. Further, according to the prosecution,
Santiago’s statement to the prosecution rebutted Defendant’s
alibi. The court overruled Defendant’s objection.
Defendant then renewed his objection:
[DEFENSE COUNSEL]: [The prosecution] is right,
partially right, okay, insofar as we give our notice. They
respond. We respond with specific names. And then after
their investigation, if they’re going to have specific
witnesses to rebut us, they need to give us written notice
of that. And the way [the prosecution] is trying to hedge
around that rule is by saying he’s a rebuttal witness. He
doesn’t have to give us notice. Because it’s specifically
to rebut our alibi we’re entitled to that notice.
And furthermore, [the prosecution] knew we were
looking for this guy. And [I] told the [c]ourt as much when
[the prosecution] was present that I lost him. I can’t find
him. [The prosecution] . . . obviously knew where he was to
the point where they had to make arrangements to fly him in.
[THE PROSECUTION]: We didn’t know where he was. We
thought along until last -- when our status conference was,
I think last week sometime, whenever it was when you said
you weren’t calling [] Santiago is when I realized that you
weren’t calling [] Santiago. And I had to go look for him.
And that was based on defense’s representation. They gave
us an alibi witness name and then they don’t call him.
[THE COURT]: Overruled at this time.
(Emphases added.)
III.
Over Defendant’s objection, Santiago testified as a
rebuttal witness. Santiago stated that on the night in question
he went to Club Electro. He knew Defendant as a friend of
Benavides. Santiago said he was “drunk” when he left the club,
at which point he and Defendant entered Benavides’s car.
According to Santiago, there was no one else in the car.
Santiago could not recall what kind of car it was.
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Santiago testified that he “dozed” and “woke up chasing
some guy[]”12 on “Ala Moana Boulevard[,]” but could not recall why
he was chasing the man, and could not remember the location of
Benavides and Defendant. Santiago then returned to the vehicle,
went back to sleep, and woke up in Waikiki. He did not know what
happened from the time he left the club to the time he awoke in
Waikiki. Santiago said he could not remember because he had “a
lot” to drink.
Santiago recalled that an investigator subsequently
asked him about the incident, but he could not recall telling the
investigator what kind of vehicle Benavides was driving or what
happened on the way to Waikiki. Santiago remembered that the
investigator asked him questions, including whether Santiago
would complete a statement on a piece of paper. Santiago refused
because he “didn’t really trust” the investigator and felt that
the investigator was trying to put words in his mouth.
Santiago also said he did not want to fill out a form
because he did not want his statement to be different from what
he might have said to a “lady attorney[.]” Santiago was “not too
sure” what he told the investigator. When pressed by the
prosecutor, Santiago could not recall chasing a male or males
toward Exotic Nights, did not remember being near Sports
12
On redirect, Santiago was asked, “[D]o you remember chasing some
guys[?]” He responded, “Yes.”
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Authority, and did not remember telling the investigator that he
was chasing males with Defendant.
During Santiago’s testimony, the court asked counsel to
approach the bench and told the prosecution that if Santiago
could not remember what he told the investigator, the
investigator’s testimony regarding what Santiago said was hearsay
and would only be admitted in evidence to impeach Santiago.
When Santiago finished testifying, the prosecution called its
investigator as a witness. Before the investigator testified,
the court gave the jury a limiting instruction, telling the jury
that it could only consider the investigator’s testimony to weigh
Santiago’s credibility.
The investigator testified that Santiago said he had
been a passenger in a pickup truck that had stopped at the Sports
Authority intersection. The investigator was asked, “Did
[Santiago] indicate what he was doing specifically at that stop
light?” The court again instructed the jury that the
investigator’s statements were “not allowed for the truth of what
is being stated, but for credibility purposes of a prior
witness.” The investigator related that Santiago said that he
was a “passenger in a pickup” and that “he doesn’t know why, but
[Defendant] and he started chasing two guys down the road away
from Sports Authority towards Exotic Nights.”
IV.
The next day, while discussing jury instructions,
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Defendant’s counsel asked that the limiting instruction regarding
the investigator’s testimony be included in the final jury
instructions. The court denied the request, but cautioned the
prosecutor that Santiago’s statements to the investigator could
not be used as “rebuttal evidence” during closing argument.
In closing argument, the prosecutor argued to the jury
that Santiago had testified to a “half-truth” because he
remembered “chasing two guys” with another person, and that
Santiago’s testimony placed him and Defendant “on Ward Avenue,
near Sports Authority, chasing guys.” The prosecution then told
the jury, “That right there does in their alibi. That alone
kills the defense.” After deliberation, the jury found Defendant
guilty as charged of the offense of Assault in the Second Degree.
V.
On appeal to the ICA, Defendant argued in pertinent
part that (1) the prosecution’s last minute disclosure of
Santiago’s alibi rebuttal testimony violated HRPP Rule 12.1 and
Defendant’s constitutional rights; and (2) the prosecution
committed misconduct in closing argument by violating the court’s
instruction that Santiago’s statements to the investigator could
be considered by the jury for impeachment purposes only. The ICA
rejected Defendant’s points of error, affirmed the court’s
decision, and denied Defendant’s request to reverse his
conviction or remand for a new trial. Valeros, 2011 WL 1909109,
at *1-2.
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VI.
In his Application, Defendant presents the following
two questions:
(1) Whether the ICA gravely erred in affirming the . . .
court’s admission of Santiago’s testimony as an alibi
rebuttal witness.
(2) Whether the ICA gravely erred in concluding that the
prosecutor did not violate the . . . court’s limiting
instruction during closing argument.
Our resolution of the first question is dispositive,
and thus we do not reach the second question posed by Defendant.
VII.
A.
As to his first question, Defendant asserts that the
prosecution should have disclosed Santiago to the defense as an
“additional witness” under HRPP Rule 12.1(b) and (d) when the
prosecution learned that Santiago would provide evidence to rebut
Defendant’s alibi. Noting that HRPP Rule 12.1(e) nevertheless
gave the court discretion to admit the testimony, Defendant
argues that the “opportunity to conduct an on-the-spot interview
in the middle of trial did not cure the undeniably prejudicial
effect on the defense strategy when defense counsel had prepared
for trial on the assumptions that (1) Santiago’s prior statement
to her confirmed the alibi, but despite her best efforts to
locate him, she (2) had to proceed to trial without Santiago
because she was unable to locate him.”
According to Defendant, “a judicial finding that
defense counsel’s last-minute, during-trial interview of a
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possibly recanting witness as an adequate remedy for the
prosecution’s nondisclosure is hugely problematic” because it
“compels the lawyer to make herself a witness[.]” Finally,
Defendant contends that the prosecution’s “tactics” “violated
Defendant’s right to present his alibi defense, [his] due process
right to a fair trial, and were not harmless beyond a reasonable
doubt, where the alibi defense was Defendant’s sole defense.”
The prosecution counters that HRPP Rule 12.1(e) gives
the court discretion to allow the testimony of the undisclosed
witness. HRPP Rule 12.1(e) provides that “[u]pon the failure of
either party to comply with the requirements of this rule, the
court may exclude the testimony of any undisclosed
witness . . . .” (Emphasis added). According to the
prosecution, “[a]s such it is clear . . . that the circuit court
is provided the discretion of allowing or disallowing the
testimony of any undisclosed witness.” The prosecution also
argues that, assuming arguendo that Defendant is correct that the
prosecution should have disclosed Santiago as a witness pursuant
to HRPP Rule 12.1(b), the court did not abuse its discretion in
allowing Santiago to testify because Defendant had interviewed
Santiago prior to trial regarding the night in question;
Defendant was allowed to interview Santiago before he testified;
and Defendant failed to request a continuance based on the
allowance of Santiago’s testimony. (Citing State v. Miller, 67
Haw. 121, 680 P.2d 251 (1984)).
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B.
The ICA held that the “HRPP Rule 12.1(b) does not
initially require disclosure unless a party intends to rely on a
witness[;] and it does not appear from the record that [the
prosecution] intended to rely on Santiago as a witness at the
time of its initial disclosure.” Valeros, 2011 WL 1909109, at
*1. As to HRPP Rule 12.1(d), the ICA held that Rule 12.1(d)
“only applies to an ‘additional witness whose identity, if known
should have been included in the information furnished’ pursuant
to the required disclosures under HRPP Rule 12.1(b).” Id.Because Santiago had already been disclosed by the defense, the
ICA concluded that “he was not an ‘additional witness’ within the
meaning of [HRPP Rule 12.1(d)].” Id. Finally, the ICA concluded
that Rule 12.1(e) did not require the exclusion of the offending
testimony. Id. According to the ICA, “[w]here Santiago was
originally [Defendant’s] own witness and the [] court gave
[Defendant] an opportunity to re-interview Santiago prior to the
latter’s testimony at trial, it was not an abuse of discretion to
allow Santiago’s testimony.” Id.VIII.
It is undisputed from the record that the prosecution
did not disclose to Defendant that it would use Santiago as an
“additional witness” to CW and Miller to counteract the alibi
defense. Disclosure was to have been “promptly” made, HRPP Rule
12.1(d), when (1) the prosecution obtained Santiago’s verbal
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statement to the investigator that Defendant was present at the
scene of the crime; and (2) when it determined that it would call
Santiago as its witness, which occurred, at the latest, when it
located Santiago on the Big Island and arranged to fly Santiago
from the Big Island to testify. At such points, Santiago,
although previously listed on Defendant’s list, became an
“additional witness,” HRPP Rule 12.1(d), for the prosecution, and
Santiago “should have been included in the information furnished
under [HRPP Rule 12.1,] section (b)[.]”
To reiterate, HRPP Rule 12.1(b) states that the
prosecution “shall . . . inform the defendant in writing of the
names and addresses of the witnesses upon whom the government
intends to rely to establish defendant’s presence at the scene of
the alleged offense.” (Emphasis added.) In State v. Davis, 63
Haw. 191, 194-95, 624 P.2d 376, 379 (1981), this court adopted
the reasoning in Wardius v. Oregon, 412 U.S. 470 (1973), and held
that HRPP Rule 12.1 provides for reciprocal discovery in
conformance with due process and that discovery under HRPP Rule
12.1 is a “two-way street.13 Cf. State v. Dowsett, 10 Haw. App.
491, 498, 878 P.2d 739, 743 (1994) (“Discovery is at the very
13
In Wardius, the United States Supreme Court reasoned that (1) the
Due Process Clause speaks “to the balance of forces between the accused and
his accuser” and thus “[i]t would be fundamentally unfair to require a
defendant to divulge the details of his own case while at the same time
subjecting him to the hazard of surprise concerning refutation of the very
pieces of evidence which he disclosed to the State,” 412 U.S. at 476; and (2)
that because the prosecution has greater financial and personnel resources
with which to investigate and scientifically analyze evidence, in addition to
a number of other tactical advantages, if there is to be any imbalance in
discovery rights, it should work in the defendant’s favor. id. at 476 n.9.
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foundation of the fact finding process. Faithful adherence to
discovery obligations serves the public interest: Discovery
provides the basic information which is necessary to expedite
trials and plea decisions in an already overburdened court system
and promotes fairness in the adversary system.”).
Davis held “that once defendant has furnished to the
government the names and addresses of his alibi witnesses,
defendant has a reciprocal right to discover the names and
addresses of witnesses the government intends to rely on to rebut
or discredit defendant’s alibi witness.” 63 Haw. at 196, 624
P.2d at 380 (emphasis added). Consequently, when the prosecution
realized it was going to rely on Santiago to place Defendant at
the scene of the offense, disclosure was required even though
Santiago was not listed as such a witness in the prosecution’s
initial notice of its witnesses under HRPP Rule 12.1(b). Under
Davis, the prosecution was required to disclose that it would use
Santiago to rebut or discredit Defendant’s alibi even though
Santiago had been listed as a witness by the defense. See id.A.
1.
A plain reading of HRPP Rules 12.1(b) and 12.1(d)
indicates that the prosecution had a continuing duty to disclose
Santiago as an “additional witness.” See Davis, 63 Haw. at 194,
196, 624 P.2d at 378, 380 (noting that “the government is
required to disclose the identity of the witnesses on whom it
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will rely to establish the defendant's presence at the scene of
the offense and of any other witnesses who will be used to rebut
the testimony of defendant’s alibi witnesses[,]” and holding that
once the “defendant has furnished to the government the names and
addresses of his alibi witnesses, [the] defendant has a
reciprocal right to discover the names and addresses of witnesses
the government intends to rely on to rebut or discredit
defendant's alibi witnesses”) (internal citation omitted).
The ICA interpreted the words “should have been
included” in HRPP Rule 12.1(d) as limiting the duty to disclose a
witness who was not disclosed “at the time of its initial
disclosure[,]” under HRPP Rule 12.1(b), Valeros, 2011 WL 1909109,
at *1, but whom the party knew at that time would place a
defendant at the scene of the offense. However, this
interpretation would defeat the purpose of HRPP Rule 12.1
inasmuch as it would preclude disclosure of witnesses who were
discovered after initial disclosure, i.e., “learn[ed]” of “prior
to or during trial,” and would be inconsistent with the
“[c]ontinuing duty to disclose,” (emphasis added), imposed by
HRPP Rule 12.1(d).
2.
The obligation to notify the defendant of “the
existence and identity” of additional witnesses must be exercised
“promptly,” HRPP Rule 12.1(d). The prosecution first contacted
Santiago on July 18, 2007. At the latest, by November 8, 2007,
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the prosecution knew that it would call Santiago as a witness,
but it did not disclose his status as an alibi-rebuttal witness
until November 14, just before the defense was to start its case,
and after the prosecution had already flown Santiago from Hawai#i
to Honolulu. Cf. State v. Sherman, 70 Haw. 334, 340, 770 P.2d
789, 793 (1989) (noting that “the prosecution is obliged, within
a reasonable time, to make available the specifics required by
[HRPP Rule 12.1(b)]”); see also Paul’s Elec. Serv., Inc. v.
Befitel, 104 Hawai#i 412, 420, 91 P.3d 494, 502 (2004) (noting
that this court has imported the reasonableness standard into
HRPP Rule 12.1, even though the “time frame [i]s not specified”
in that rule).
3.
HRPP Rule 12.1(b) does not state that a party is
excused from disclosing a witness it intends to rely upon to
rebut the defendant’s alibi, except as set forth in HRPP Rule
12.1(f). According to the record, while Defendant had listed
Santiago as an alibi witness, he had lost track of Santiago and
was unaware that Santiago would instead be appearing as a
rebuttal witness for the prosecution. Under these circumstances
the prosecution concealed Santiago’s new status as its alibi-
rebuttal witness. See Sherman, 70 Haw. at 341, 770 P.2d at 793(noting that the “purpose of the rule was to provide reciprocal
discovery between the prosecution and the defense,” (emphasis in
original), and that “[t]he adversary system of trial is hardly an
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end in itself; it is not a poker game in which [the] players
enjoy an absolute right always to conceal their cards until
played”) (internal quotation marks and citation omitted). Thus,
the prosecution’s failure to disclose Santiago as its rebuttal
witness violated HRPP Rule 12.1. Id.
4.
The court had the option, under HRPP Rule 12.1(e), to
exclude Santiago’s testimony. The ICA reasoned that because the
court gave Defendant an opportunity to re-interview Santiago
before he testified at trial, the court did not abuse its
discretion when it did not exclude Santiago. The prosecution
adds that Defendant had interviewed Santiago before trial and
could have asked for a continuance.
However, the fact that Santiago was interviewed by
defense counsel before trial only magnified the prejudice to
Defendant caused by the prosecution’s failure to name Santiago as
its witness. Defendant had listed Santiago as his own alibi
witness but was unable to subsequently locate him and was thus
caught by surprise upon learning that Santiago was going to be
called by the prosecution instead.
The opportunity to interview Santiago during the middle
of trial did not cure the prejudice to Defendant from the
prosecution’s failure to abide by HRPP Rule 12.1. HRPP Rule
12.1(d) imposes a continuing duty to promptly disclose witnesses.
Its purpose is precisely to avoid such mid-trial surprises.
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Additionally, had Defendant known before trial that the
prosecution intended to call Santiago as a rebuttal witness,
Defendant could have adjusted his trial strategy to avoid an
alibi defense at all. Given the inconsistencies in the testimony
of the prosecution’s eyewitnesses, CW and Miller, Defendant might
have chosen to focus solely on calling into question the
reliability of their identification testimony. That avenue was
no longer open to Defendant when the prosecution belatedly
revealed that it was going to call Santiago. By then, as
Defendant asserted in oral argument before this court, Defendant
was already committed to an alibi defense; both parties had
discussed the alibi defense during their opening statements, and
Defendant had pursued the defense during trial. In fact, at the
time of its opening statement, the prosecution apparently knew
Defendant could not locate Santiago and knew that it had obtained
a statement from Santiago on July 18. The opportunity to
interview Santiago during the middle of trial therefore did not
mitigate the prejudice to Defendant. For the same reason, a
continuance would not have mitigated the prejudice to Defendant.
Accordingly, we reject the prosecution’s suggestion that
Defendant was required to request a continuance in these
circumstances.
B.
Under HRPP Rule 12.1(f), “the court may grant an
exception to any . . . requirements of [the] rule[]” only “[f]or
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good cause shown[.]” The exception clause was not invoked by the
prosecution and no showing of good cause was made at trial under
HRPP Rule 12.1(f).
Davis is instructive in this regard. In Davis, the
defendant failed to notify the prosecution and the circuit court
that he intended to rely on an alibi defense before trial, as
required under HRPP Rule 12.1(a). 63 Haw. at 197, 624 P.2d at
381. Instead, the defendant notified the court and the parties
that he would use an alibi defense only after the jury was
selected. Id. The defendant testified at trial to such a
defense and sought to have an alibi witness testify. Id. The
circuit court disallowed the defendant’s alibi witness from
testifying and imposed a sanction on the defendant because he
failed to comply with HRPP Rule 12.1. Id.This court determined that the circuit court did not
abuse its discretion under HRPP Rule 12.1(e) in excluding the
alibi witness. According to Davis, the circuit court had
“discretion, upon a showing of good cause, to make exceptions to
the rule so as to balance the interests of both the government
and the defendant to give both an opportunity to discover on
equal terms.” 63 Haw. at 198, 624 P.2d at 380-81 (emphasis
added). Because there was no “good cause” shown for the
defendant’s failure to comply with HRPP Rule 12.1, this court
held the circuit court properly exercised its discretion in
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excluding the alibi witness from testifying. Id. at 197, 624
P.2d at 380-81.
IX.
In the instant case, as explained supra, the
prosecution failed to abide by HRPP Rule 12.1 inasmuch as it had
interviewed Santiago on July 18, 2007, and then discovered “two
days” after the pretrial conference of November 6, 2007 that
Santiago was on Hawai#i, but only disclosed Santiago as a rebuttal
witness on November 14, the day that Defendant was to present his
case at trial. This disclosure of Santiago, when it appears that
the prosecution had obtained a statement on July 18, 2007, and
knew of Santiago’s whereabouts before trial began and five days
into the trial, was not made “promptly,” HRPP Rule 12.1(d), and
was a violation of HRPP Rules 12.1(b) and (d). The record does
not reflect any “showing of good cause” or an inquiry by the
court as to why the prosecution failed to disclose Santiago
sooner as a basis for granting an exception to the requirements
of HRPP Rule 12.1. See HRPP Rule 12.1(f).
Instead, the court overruled Defendant’s objection14
that Santiago should not be allowed to testify because of the
late disclosure, without providing any reasons. Respectfully,
inasmuch as the court did not determine that “good cause” existed
for applying an exception to the prosecution’s duty to adhere to
14
To reiterate, Defendant objected on two grounds: that the
prosecution violated HRPP Rule 12.1, and that Santiago was not a proper
rebuttal witness. However, Defendant does not argue the latter on appeal,
and, as such, it is not addressed further.
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HRPP Rule 12.1, the court’s overruling of Defendant’s objection
was in error. See Davis, 63 Haw. at 195-97, 624 P.2d at 379-81(determining that a court may “make exceptions to the rule” only
“upon a showing of good cause”). What matters is not whether
Defendant knew about the existence of Santiago, but whether
Defendant knew that the prosecution was going to use Santiago as
a rebuttal witness to the alibi defense. See id. To avoid
unfairly surprising Defendant, it was necessary for the
prosecution to comply with its obligation to notify Defendant
that it intended to use Santiago as a rebuttal witness. See id.The prosecution did not do so. In this case, therefore,
discovery was not a “two-way street,” and the prosecution’s
failure to provide reciprocal discovery infringed upon
Defendant’s due process rights. See id. at 195; 624 P.2d at 379.
X.
The remaining issue is whether the error was harmless.
When assessing whether an error is harmless, the question is
whether, in light of the entire proceedings, there is “a
reasonable possibility that [the] error might have contributed to
the conviction.” State v. Veikoso, No. SCWC-30138, 2011 WL
4037979, at *10 (Haw. Sept. 12, 2011) (internal quotation marks
and citation omitted). State v. Ah Choy, 70 Haw. 618, 780 P.2d
1097 (1989), is relevant in this regard. In Ah Choy, the
defendant was convicted after a jury trial of attempted murder
and robbery. Id. at 618-19, 780 P.2d at 1098-99. The defendant
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filed a motion for a new trial on, inter alia, the ground that
the prosecution failed to list an alibi rebuttal witness pursuant
to HRPP Rule 12.1. Id. at 620, 780 P.2d at 1099. The circuit
court denied the motion. On appeal, in pertinent part, the
defendant argued that the circuit court abused its discretion in
allowing the prosecution’s witness to rebut the defendant’s alibi
witness testimony since the prosecution failed to name its
rebuttal witness before trial. Id. at 623-24, 780 P.2d at 1102-
03. This court decided the error was harmless because the
“direct testimony” of the prosecution’s witnesses “overwhelmingly
contradicted” the defendant’s alibi witness.
Though we are deeply troubled by the prosecutor’s failure to
abide by our rules of discovery, State v. Davis, 63 Haw.
191, 196-97, 624 P.2d 376, 380 (1981), we cannot ignore the
direct testimony of the store cashier who positively
identified Appellant as her attacker, nor the direct
testimony of the off-duty hotel security guard who saw
Appellant crossing from the hotel . . . . This testimony
identifying Appellant overwhelmingly contradicted
Appellant’s alibi witness. Accordingly, we hold the trial
court’s admission of the rebuttal witness’ harmless error.
Id. at 625, 780 P.2d at 1103.
Unlike Ah Choy, there was no “direct testimony” that
“overwhelmingly contradicted” Defendant’s alibi. As shown supra,
although CW and Miller ultimately identified Defendant as CW’s
assailant, their descriptions to the police contained
inconsistencies, and Benavides and Defendant testified Defendant
was elsewhere. The vehicle identified by the police was not tied
to Defendant, and although a wooden baton was located, it was not
the instrument used in the incident.
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The court’s error allowed Santiago’s testimony into
evidence wherein he testified that he and Defendant were chasing
an individual on Ala Moana Boulevard. Without Santiago’s
testimony, the investigator’s testimony would not have been
admissible, inasmuch as the investigator was called upon to
impeach Santiago.15 The investigator testified that Santiago said
he and Defendant were on Ward Avenue chasing individuals,
contradicting Defendant’s alibi defense. It follows that the
admission of Santiago’s testimony had a pivotal role in the case
and reasonably might have contributed to his conviction. As a
result, the admission of Santiago’s testimony was not harmless
beyond a reasonable doubt, see Veikoso, 2011 WL 4037979, at *10,
and thus, the ICA gravely erred when it held that HRPP Rule 12.1
was not violated.
XI.
Accordingly, the court’s February 5, 2008 judgment of
conviction and sentence of Defendant and the ICA’s June 3, 2011
judgment are vacated and the case is remanded for a new trial.
Karen T. Nakasone, Deputy /s/ Mark E. Recktenwald
Public Defender for
petitioner/defendant- /s/ Paula A. Nakayama
appellant.
/s/ Simeon R. Acoba, Jr.
Stephen K. Tsushima, Deputy
Prosecuting Attorney, City /s/ James E. Duffy, Jr.
and County of Honolulu for
respondent/plaintiff- /s/ Sabrina S. McKenna
appellee.
15
We do not reach the question of whether it was proper for the
court to allow the investigator to testify to “impeach” Santiago.
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