State v. Alkire. ( 2020 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
25-JUN-2020
08:01 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
LISA E. ALKIRE,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1DTA-16-03825)
JUNE 25, 2020
McKENNA, POLLACK, AND WILSON, JJ., WITH
NAKAYAMA, J., DISSENTING AS TO SECTION IV.A.,
WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This certiorari proceeding arises out of Lisa E. Alkire’s
(“Alkire”) conviction for the offense of operating a vehicle
under the influence of an intoxicant (“OVUII”) in violation of
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Hawaiʻi Revised Statutes (“HRS”) § 291E-61(a)(1) (Supp. 2014) on
Likelike Highway in the early morning hours of October 15, 2016.
Alkire raises four questions in her application for writ of
certiorari, which challenges the Intermediate Court of Appeals’
(“ICA”) January 24, 2019 summary disposition order (“SDO”). The
ICA’s SDO affirmed the District Court of the First Circuit’s
(“district court”) August 30, 2017 judgment.1
The four questions raised on certiorari are:
I. As a matter of first impression, did the ICA gravely err
in finding that the Tachibana admonishment was sufficient
where Petitioner was not informed of her right to testify
in her consolidated suppression hearing without that
testimony being used to determine guilt or innocence and/or
where the court specifically declined to inform Petitioner
of her right to remain silent?
II. As a matter of first impression, did the ICA gravely
err in rejecting Petitioner’s HRPP, Rule 48 and/or
constitutional speedy trial challenges, where the trial
“commenced” with one state witness but was subsequently
continued for eight months at no fault of Petitioner?
III. Did the ICA gravely err in holding that HRPP Rule 16
usurps United States Supreme Court precedent that requires
individual prosecutors to obtain and disclose impeachment
materials rather than merely relying on representations of
the police to determine whether and what materials should
be disclosed to Defendants?
IV. Did the ICA gravely err in finding that discovery,
requested for its potential exculpatory value, was not
material because the evidence of guilt was “overwhelming”
and/or in affirming the conviction where Ms. Alkire was
deprived of an opportunity to establish an appropriate
record as to the existence of the video?
1 The Honorable James H. Ashford presided.
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The first question on certiorari was resolved through our
opinion in State v. Chang, 144 Hawaiʻi 535, 445 P.3d 116 (2019).2
With respect to the second question on certiorari, we adopt
the California Supreme Court’s reasoning in Rhinehart v.
Municipal Court, 677 P.2d 1206, 1211-12 (Cal. 1984), and hold
that, in order to effectuate its intent, Hawaiʻi Rules of Penal
Procedure (“HRPP”) Rule 48 (2000) requires a “meaningful”
commencement of trial. A trial is “meaningfully” commenced when
a trial court reasonably commits its resources to the trial. As
this is a “new rule,” it will only apply prospectively to events
occurring after publication of this decision, i.e., to trials
that commence after the date of this opinion.3
With respect to the third question on certiorari, we hold
that, under the circumstances of this case, the prosecutor was
not required to personally review files of the testifying police
officers.
As to the fourth question on certiorari, we hold that
because the video recording showing Alkire at the police station
2 In Chang, we noted that because the defendant had the right to testify
for the purpose of his motion to suppress without having that testimony used
against him at trial, it was essential that the defendant be informed of
those rights in order to ensure that his decision on whether to testify at
the suppression hearing was knowingly and intelligently made. 144 Hawaiʻi at
545, 445 P.3d at 126. Overruling State v. Texeira, 62 Haw. 44, 609 P.2d 131(1980), we also prospectively held that trial courts could no longer
consolidate a motion to suppress hearing with a trial. 144 Hawaiʻi at 546,
445 P.3d at 127. We therefore need not further address this issue.
3 See also infra note 8.
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after her arrest was material to Alkire’s defense and her
request was reasonable, the district court abused its discretion
in denying her motion to compel. We set out additional
parameters the district court must consider. Although the
district court may not reach this issue, we also hold that the
permissive adverse inference rule, which allows a trier of fact
to draw an adverse inference that lost or destroyed evidence was
unfavorable to the spoliator, also applies in criminal cases.
Accordingly, we vacate the ICA’s February 25, 2019 judgment
on appeal, which affirmed the district court’s August 30, 2017
judgment, and we remand the case to the district court for
further proceedings consistent with this opinion.
II. Background
A. Arrest, request to preserve evidence, and charge
In the early morning of October 15, 2016, Alkire was
stopped while driving northbound on Likelike Highway after a
Honolulu Police Department (“HPD”) officer (“patrol officer”)
observed her swerve from the traffic lane into the shoulder lane
three times. Alkire was later placed under arrest for OVUII and
transported to the police station.
On October 20, 2016, Alkire’s counsel faxed a five-page,
single-spaced letter (“request to preserve”) to the HPD Central
Receiving Division (“Central Receiving”). In the letter,
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Alkire’s counsel specifically requested that the following
information be preserved:
[A]ny and all video or audio recordings that may contain
evidence of this case . . . (or records of such footage)
from any video, audio or traffic cameras maintained,
operated, controlled, leased, or accessible by the . . .
Honolulu Police Department, . . . Department of the
Prosecuting Attorney and/or any other government entity or
sub-department, semi-autonomous or any other department,
that may pertain to this incident . . . . This request also
specifically includes, but is not limited to, any and all
recordings, captured in whatever manner, of this Defendant
by police department employees or contractors whether at
the police station, from any in-car recording devices,
and/or video or audio recording devices.
The request listed Alkire’s identifying information, the date of
arrest, citation number, and state ID booking number. Alkire’s
counsel also emailed the request to preserve to the Department
of the Prosecuting Attorney for the City and County of Honolulu
(“prosecutor’s office”). The following day, Alkire’s counsel
faxed to Central Receiving an addendum to the October 20, 2016
request to preserve, which specifically requested that the video
from the Kalihi Police Station be preserved. Alkire’s counsel
also emailed the addendum to the prosecutor’s office and mailed
physical copies of both the request to preserve and the addendum
to HPD Headquarters (“Headquarters”), Central Receiving, and the
prosecutor’s office.
On November 1, 2016, the State filed a complaint charging
Alkire with one count of OVUII in violation of HRS § 291E-
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61(a)(1) and/or (a)(3).4
B. District court proceedings relevant to issues on certiorari
1. Motion to compel officer files
On December 5, 2016, Alkire filed a motion to compel files
of the police officers the State intended to call as witnesses
(“motion to compel officer files”). Alkire requested that (1)
the State produce the personnel files of the officers involved
in Alkire’s case (and any other documentation regarding the
officers’ misconduct); and (2) that the prosecutor “be required
to review the files of its witnesses to determine whether
impeachment materials exist and not shift that burden to police
or non-lawyer bureaucrats,” as purportedly required by Brady v.
Maryland, 373 U.S. 83 (1963) (suppression of evidence favorable
to the accused violates due process where the evidence is
material to guilt or punishment, regardless of the good faith
or bad faith of the prosecution), and United States v. Bagley,
4 HRS § 291E-61(a) (Supp. 2014) provides in relevant part,
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person’s normal
mental faculties or ability to care for the
person and guard against casualty;
. . . .
(3) With .08 or more grams of alcohol per two
hundred ten liters of breath[.]
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473 U.S. 667 (1985) (a prosecutor’s failure to disclose evidence
favorable to the accused constitutes reversible error when the
suppressed evidence might have affected the outcome of the
trial).
2. Motion to compel video recording
On January 6, 2017, Alkire filed a motion to compel
production of the video recording showing her at the police
station after her arrest (“motion to compel video recording”).
Alkire indicated she had been under surveillance at the Kalihi
Police Station after her arrest, and that she had sent the
request to preserve a few days after her arrest and “well within
the time that the video footage was maintained” to the HPD and
to the prosecutor’s office.
Alkire attached to her motion the request to preserve and
the addendum, which had been sent to Headquarters, Central
Receiving, and the prosecutor’s office. Alkire also attached a
transcript of statements by HPD Police Sergeant Barry Tong (“Sgt.
Tong”) at one of defense counsel’s previous hearings involving
another OVUII defendant. Sgt. Tong, who worked at Central
Receiving, had explained HPD practice for retaining video
surveillance footage:
SGT. TONG: In response to [defense counsel’s] request
for video surveillance from our detention facility on the
date that [redacted] was arrested, unless we actually had a
subpoena of some sort within 20 to 25 days –- that is
usually when the –- the video recording is written over.
THE COURT: Okay.
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SGT. TONG: So it’s not destroyed; it’s just written
over.
THE COURT: Okay. So I think what you’re saying –-
tell me if I’m correct.
You’re saying that the normal course of events is
after 20 to 25 days existing material is re –- is recorded
over?
SGT. TONG: Correct. With our current system, yes,
sir.
Additionally, Sgt. Tong had testified that future requests to
preserve evidence should be sent to the Central Receiving and
that either he or one of his officers “will go through its
proper channels . . . to preserve the information.”
In addition, Alkire attached (1) a copy of the HPD policy
requiring video monitoring of all detainees in holding cells and
(2) a letter from Sgt. Tong regarding a discovery request for
another case, stating that (a) video recordings from the
District 5 Kalihi Police Station “exist[s] for a period of 30
days after the day and time it was recorded;” and (b) “cameras
at the District 5 Kalihi Police Station are positioned to get
maximum viewing angle of the exterior of the police station and
all access points to the station[]” and also provide
“surveillance viewing of the adult and juvenile processing and
cellblock areas.”
Alkire also represented that, as of January 6, 2017, the
State had not responded to her request, and that the video
recording had not been provided in the State’s January 5, 2017
disclosure. Alkire argued that her constitutional rights
entitled her to access this video footage. Alkire argued that
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this video footage was “an ‘essential ingredient’ to demonstrate
to [the district court] the Defendant’s version of the facts,
i.e., that Defendant was not impaired and that the purported
indicia of impairment simply were not present.”
Alkire further contended that even if her constitutional
rights were not implicated, under HRPP Rule 16 (2012),5 her
5 HRPP Rule 16 provides in relevant part:
(a) Applicability. Subject to subsection (d) of this rule,
discovery under this rule may be obtained in and is limited
to cases in which the defendant is charged with a felony,
and may commence upon the filing in circuit court of an
indictment, an information, or a complaint.
(b) Disclosure by the prosecution.
(1) Disclosure of matters within prosecution’s
possession. The prosecutor shall disclose to the
defendant or the defendant’s attorney the following
material and information within the prosecutor’s
possession or control:
. . . .
(vii) any material or information which tends
to negate the guilt of the defendant as to the
offense charged or would tend to reduce the
defendant’s punishment therefor.
(2) Disclosure of matters not within prosecution’s
possession. Upon written request of defense counsel
and specific designation by defense counsel of
material or information which would be discoverable
if in the possession or control of the prosecutor and
which is in the possession or control of other
governmental personnel, the prosecutor shall use
diligent good faith efforts to cause such material or
information to be made available to defense counsel;
and if the prosecutor’s efforts are unsuccessful the
court shall issue suitable subpoenas or orders to
cause such material or information to be made
available to defense counsel.
. . . .
(continued . . .)
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request for the video footage was both “reasonable” and
“material.” Finally, Alkire argued that if the video footage
had been destroyed despite her request that the footage be
preserved, her case should be dismissed.
On January 9, 2017, the State filed a memorandum in
opposition. The State argued that pursuant to HRPP Rule 16,
discovery in misdemeanor cases is allowed “only if defendant
makes a showing of materiality and if defendant’s request is
reasonable.” The State argued that Alkire was requesting the
video recordings “with no good faith basis” and that her request
was in the nature of a “fishing expedition.” The State
contended that any surveillance video would not be material
because Alkire arrived at the Kalihi Police Station nearly forty
minutes after the initial car stop and it was speculative that
the video would show the signs and symptoms of possible
impairment that the officers had observed earlier.
(. . . continued)
(d) Discretionary Disclosure. Upon a showing of
materiality and if the request is reasonable, the court
in its discretion may require disclosure as provided for
in this Rule 16 in cases other than those in which the
defendant is charged with a felony, but not in cases
involving violations.
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3. January 10, 2017 proceedings
a. Pretrial matters
On the afternoon of January 10, 2017, Alkire’s case was
called, and before starting trial, the district court addressed
Alkire’s motions to compel officer files and the video recording.
The district court asked the State whether it was in possession
or control of any potentially exculpatory or sentence-reducing
information that had not yet been turned over to the defense.
The State responded that it was not. The State further stated:
And I can put on the record, Your Honor, that in regards to
this matter, we did –- we are not aware of any exculpatory
evidence as I’ve already indicated, however, we also did
make affirmative inquiries on –- into both of these
officers, both to HPC [Honolulu Police Commission] and HPD,
and in each case we were told that there are no records re
–- or on either officer. And from HPC, Your Honor, from
the commission we received that response November 30th and
from HPD rather we received that response November 28th.
So as of that time, Your Honor, not only do we not have any
information, but we have made affirmative checks and found
nothing to turn over.
At defense counsel’s request, the State clarified that it had
made standard requests for information pertaining to the
witnesses’ truth or veracity and argued it therefore met its
burden under Brady and its progeny to disclose exculpatory
evidence. The district court then denied Alkire’s motion to
compel officer files.
With respect to the motion to compel video recording,
Alkire argued that, based on HPD policy and Sgt. Tong’s
testimony, a video should exist and that it was material because
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the alleged indicia of impairment should have been observable
when Alkire arrived at the Kalihi Police Station. The district
court denied this motion also, on the grounds Alkire had not
shown that a video recording of her actually existed, or, if it
existed, that it was material.
b. Patrol officer’s testimony
After both the State and defense waived opening statements,
the State called its first witness, the patrol officer, who
testified as follows.
While driving north on Likelike Highway on October 15, 2016,
he observed a red Jeep suddenly veer into the right shoulder,
veer back into the driving lane, and veer into the right
shoulder again. After observing the Jeep veer into the shoulder
a third time “just slightly,” he decided to stop the vehicle.
After approaching Alkire, who was seated in the Jeep while he
stood two feet away from it, he smelled a strong odor of alcohol
emanating from her.
c. Trial continuance
Following cross-examination, the patrol officer was excused.
The court and the parties briefly went off, then came back on
the record. Although the record states Alkire’s counsel agreed
to continue trial to March 16, 2017, it appears the continuance
was due to chronic court congestion.
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4. March 16, 2017 proceedings
On March 16, 2017, the State called to the stand the HPD
officer who conducted a standardized field sobriety test
(“SFST”) on Alkire (“SFST officer”). He testified in relevant
part as follows.
When he arrived on the scene, the patrol officer told him
that Alkire was possibly under the influence of an intoxicant
and asked him to administer a SFST. When the SFST officer
approached the vehicle, Alkire was seated in the driver’s seat.
He observed that “[s]he had some redness and watery –- watery
eyes. And from outside the window, I could smell an odor of an
alcoholic-type beverage coming from her person.”
Alkire then consented to the SFST. After it was
administered, Alkire was arrested and transported to the Kalihi
Police Station.
The district court then interrupted the SFST officer’s
testimony and asked him to leave the courtroom so he could
discuss with counsel how they wished to proceed, considering
that the officer was not likely to finish his testimony that day.
The district court stated it wanted to give defense counsel some
time to cross-examine the SFST officer that day, stating:
Because by the time we continue this -- because it doesn’t
look like we’re going to finish, is my guess, today. I
don’t want memory to be kicking in if we have another six
or eight weeks of delay.
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Further, the district court stated that it was not allowing the
State “to pursue the (a)(3) [violation] if you don’t have your
necessary evidence today.”6 Defense counsel then stated that he
wanted to get transcripts to finish his cross-examination.
The SFST officer was called back into the courtroom and the
State’s direct examination continued. The officer clarified
that Alkire’s arrest was based on “[his] observations of
[Alkire] in the driver’s seat, coming out, and then the
performance of the standardized field sobriety test[,]” as well
as the odor of alcohol coming from her.
Defense counsel then began cross-examination. After a few
questions, the district court interrupted and stated that the
trial would be continued to a later date. Defense counsel
requested that the district court allow him “some time . . . to
get the transcript” prior to the next day of trial and that,
based on his past experience, a six-week continuance would
likely not be sufficient. The State objected, arguing that if
defense counsel was “concerned about memory, it’s very, very
easy to obtain audio of this . . . hearing.” The district court
agreed that defense counsel could obtain an audio CD promptly
6 This was in reference to HRS § 291E-61(a)(3), which prohibits operating
a vehicle “[w]ith .08 or more grams of alcohol per two hundred ten liters of
breath[.]” As in Alkire’s case, defendants arrested for OVUII after being
pulled over are often charged with OVUII under both HRS § 291E-61(a)(1),
which prohibits operating a vehicle “[w]hile under the influence of alcohol
in an amount sufficient to impair the person’s normal mental faculties or
ability to care for the person and guard against casualty” as well as HRS §
291E-61(a)(3). See supra text accompanying note 4.
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and noted that “transcripts often take several months,” which
would only exacerbate potential memory issues. Thus, the
district court declined the defense request for a delay to
obtain the transcript.
The district court then inquired whether the SFST officer
would have any scheduling issues in the next three months. The
officer indicated the month of April would not work for him due
to a significant personal family issue, and that he probably
would not be available until the second half of May or until
June. Alkire indicated a preference for an afternoon trial time.
The district court stated the first date it would be available
would be the afternoon of June 8th, and trial was continued
until that date.
5. June 8, 2017
On June 8, 2017, the defense and the prosecutor, with her
witnesses, appeared for trial. Unbeknownst to the parties,
however, the district court had entered an order on May 19, 2017
stating that “[t]his matter, currently scheduled for further
trial on June 8, 2017, at 1:30 p.m., is hereby rescheduled for
status/no witnesses at 8:30 a.m. on August 2, 2017[.]” On June
23, 2017, another order was filed by the district court, stating
that “[f]urther trial of this matter is hereby rescheduled to
August 4, 2017 at 8:30 a.m.” and “[t]he previously scheduled
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status/no witnesses at 8:30 a.m. on August 2, 2017, is hereby
cancelled.”
6. Motion to dismiss
On July 21, 2017, Alkire filed a motion to dismiss,
claiming the State had violated her constitutional right to a
speedy trial and/or HRPP Rule 48. Alkire argued that “[s]imply
‘commencing’ trial and continuing the proceedings beyond the
time permitted by Rule 48 in the first place allows the State to
present one witness and toll Rule 48 in perpetuity without any
inclination as to when trial will finally conclude.”7
Alkire contended that defendants are entitled to a
meaningful commencement of trial and that the spirit of HRPP
Rule 48 was violated because, although the trial technically
“commenced” on January 10, 2017, ten months had passed since her
arrest and the trial had not yet concluded. Alkire argued that
even if HRPP Rule 48 was not violated, the ten-month delay from
arrest to the August 2017 continued trial date was presumptively
prejudicial for speedy trial purposes, citing Barker v. Wingo,
407 U.S. 514, 530 (1972). Alkire contended that the district
court was therefore required to consider the three other Barker
7 Alkire also argued that “[t]his is an ongoing issue in District Court.
Due to the current practices in District Court, when ‘commenced’ [trials]
have been scheduled months later because no other openings are available due
to the chronic congestion resulting from these exact practices. This is
exactly what Rule 48 dismissals are designed to prevent. This case should be
dismissed.”
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factors to determine whether her constitutional rights were
violated: (1) reason for the delay; (2) defendant’s assertion of
her right; and (3) prejudice to the defendant. 407 U.S. at 530.
Alkire claimed that all three factors “weigh heavily in favor of
dismissal.”
In its memorandum in opposition, the State countered that
HRPP Rule 48 did not apply because the rule “addresses delays
prior to trial.” The State also argued that the constitutional
right to a speedy trial similarly contemplates only pre-trial
delays. The State also argued that the defense had filed
several motions.
7. August 4, 2017 proceedings
On August 4, 2017, before trial resumed, the district court
orally denied Alkire’s motion to dismiss. It found that neither
HRPP Rule 48 nor Alkire’s constitutional rights to a speedy
trial were violated. With respect to HRPP Rule 48, the district
court stated:
Completing this trial less than nine months from the
date of arraignment is reasonable in my view under the
circumstances, particularly given that in this case the
defense has filed nine motions of one sort or another, the
State has filed one motion of its own, and also given that
the defense has formally waived Rule 48 and speedy trial
rights in this particular case.
In addition, I would note that certainly at the March
16, 2017 trial, the defense also orally requested a
lengthier delay in further trial than I actually allowed.
That request was to obtain transcripts. Candidly, I think
defense counsel has unclean hands in this matter because of
the waiver of time and because of the request for lengthier
delays than the court was willing to allow. The point
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being the court has tried when it can to bring this case to
trial and completion sooner rather than later.
The district court then ruled Alkire’s constitutional
rights to a speedy trial were also not violated because (1) the
reasons for the delay were to address numerous motions, the
defense waived time, and the judge had temporarily been assigned
to another court; (2) Alkire did not specifically assert her
speedy trial rights; and (3) Alkire was not prejudiced because
there was no significant pretrial incarceration. Additionally,
with respect to Alkire’s claim of possible prejudice, the
district court stated that “if counsel was genuinely concerned
about a loss of recollection, it would make no sense to request
lengthier than normal delays for -- to obtain transcripts.”
After the district court denied the motion to dismiss, the
SFST officer was recalled for defense counsel to continue his
cross-examination. Defense counsel questioned the officer with
respect to his training on conducting SFSTs and whether Alkire
was properly instructed in performing her SFST. The officer was
then excused.
The district court found Alkire guilty of the OVUII charge
based on HRS § 291E-61(a)(1). It found that Alkire
was under the influence –- influence of alcohol in an
amount sufficient to impair her ability to care for herself
and guard against casualty. That is basically evidenced by
the three swerves so to speak and the quote-unquote indicia.
So I do not find that she was impaired by alcohol in an
amount sufficient to impair her normal mental faculties,
but I do find on the alterna –- alternative ground to guard
against casualty. I also find that the defendant was at a
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minimum reckless in all instances required to be proven by
the State.
The district court stated its finding of guilt was based on the
police officers’ observations of Alkire’s driving and other
indicia of impairment. The district court indicated that even
without considering the results of the SFST, it would have
adjudged Alkire guilty. A notice of entry of judgment was
entered on August 30, 2017.
C. ICA proceedings
Alkire appealed her conviction to the ICA, asserting the
four points of error also raised on certiorari. The ICA
affirmed Alkire’s conviction in a summary disposition order
(“SDO”). State v. Alkire, CAAP-XX-XXXXXXX, 2019 WL 312155 (App.
Jan. 24, 2019) (SDO).
With respect to the three remaining issues we address on
certiorari, first, the ICA concluded that Alkire’s speedy trial
rights were not violated. Alkire, SDO at 2. The ICA concluded
that HRPP Rule 48 was not violated because Alkire was arrested
on October 15, 2016, and trial commenced on January 10, 2017 —
within the six months allowed by the rule. Id. As to Alkire’s
constitutional speedy trial rights under the Sixth Amendment to
the United States Constitution, and article I, section 14 of the
Hawaiʻi Constitution, the ICA rejected Alkire’s claim that the
district court erred by failing to consider the period of time
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between arrest and the conclusion of trial. Alkire, SDO at 2-3.
The ICA reasoned that because only three months elapsed between
the time when Alkire was arrested and the beginning of trial,
the delay was not presumptively prejudicial, and no further
analysis under Barker was required to determine whether Alkire’s
constitutional speedy trial rights were preserved. Alkire, SDO
at 3.
Next, with respect to Alkire’s request that the prosecutor
more thoroughly investigate whether impeachment evidence existed,
the ICA concluded that Alkire was urging the ICA to promulgate a
new discovery rule requiring prosecutors to personally review
officers’ personnel files for impeachment evidence, which the
ICA declined to impose. Id.With respect to the video recording, the ICA concluded that
the district court did not err by denying Alkire’s motion to
compel because it did not appear the video footage was material.
Alkire, SDO at 4 (citing Kyles v. Whitley, 514 U.S. 419, 434-35
(1995)). The ICA so concluded based on its understanding of the
lack of evidence that any video existed at the time of Alkire’s
request and its view of the overwhelming evidence of impairment
in support of the conviction. Id.The ICA thus affirmed the district court’s August 30, 2017
judgment of conviction.
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III. Standards of Review
A. HRPP Rule 48 dismissal
An appellate court reviews a trial court’s decision on
a HRPP Rule 48 motion to dismiss under both the “clearly
erroneous” and “right/wrong” tests:
A trial court’s findings of fact (FOFs) in deciding an HRPP
48(b) motion to dismiss are subject to the clearly
erroneous standard of review. An FOF is clearly erroneous
when, despite evidence to support the finding, the
appellate court is left with the definite and firm
conviction that a mistake has been committed. However,
whether those facts fall within HRPP 48(b)’s exclusionary
provisions is a question of law, the determination of which
is freely reviewable pursuant to the “right/wrong” test.
State v. Samonte, 83 Hawaiʻi 507, 514, 928 P.2d 1, 8 (1996)
(citation omitted).
B. Constitutional questions
This court reviews questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. State v. Phua, 135 Hawaiʻi 504, 511-12,
353 P.3d 1046, 1053-54 (2015) (quotation marks omitted).
Therefore, questions of constitutional law are reviewed under
the right/wrong standard. Phua, 135 Hawaiʻi at 512, 353 P.3d at
1054.
C. Discovery requests
The scope of discovery is reviewed for an abuse of
discretion. State v. Fukusaku, 85 Hawaiʻi 462, 477-78, 946 P.2d
32, 47-48 (1997). “An abuse of discretion occurs when the
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decisionmaker exceeds the bounds of reason or disregards rules
or principles of law or practice to the substantial detriment of
a party.” State v. Fukuoka, 141 Hawaiʻi 48, 55, 404 P.3d 314,
321 (2017) (internal quotation marks and citations omitted).
IV. Discussion
The issues on certiorari for our consideration are:
II. As a matter of first impression, did the ICA gravely
err in rejecting Petitioner’s HRPP, Rule 48 and/or
constitutional speedy trial challenges, where the trial
“commenced” with one state witness but was subsequently
continued for eight months at no fault of Petitioner?
III. Did the ICA gravely err in holding that HRPP Rule 16
usurps United States Supreme Court precedent that requires
individual prosecutors to obtain and disclose impeachment
materials rather than merely relying on representations of
the police to determine whether and what materials should
be disclosed to Defendants?
IV. Did the ICA gravely err in finding that discovery,
requested for its potential exculpatory value, was not
material because the evidence of guilt was “overwhelming”
and/or in affirming the conviction where Ms. Alkire was
deprived of an opportunity to establish an appropriate
record as to the existence of the video?
A. The interests sought to be protected by HRPP Rule 48
require a “meaningful” commencement of trial
With respect to Alkire’s second question on certiorari, we
have held that “[u]nder the sixth amendment to the United States
Constitution and article I, section 14 of the Hawaiʻi
Constitution, an accused is guaranteed the right to a speedy
trial in all criminal prosecutions.” State v. Lau, 78 Hawaiʻi 54,
62, 890 P.2d 291, 299 (1995). This court applies the four-part
test set forth by the United States Supreme Court in Barker, 407
U.S. 514, and adopted in State v. Almeida, 54 Haw. 443, 509 P.2d
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549 (1973), to determine whether the government has violated a
defendant’s federal and state constitutional rights to a speedy
trial. Lau, 78 Hawaiʻi at 62, 890 P.2d at 299. These factors
are: “(1) length of the delay; (2) reasons for the delay; (3)
defendant’s assertion of his right to speedy trial; and (4)
prejudice to the defendant.” Id. (citing Barker, 407 U.S. at
533).
The United States Supreme Court indicated in Barker that
“[t]he States, of course, are free to prescribe a reasonable
period consistent with constitutional standards[.]” 407 U.S. at
523. Many states have such speedy trial rules, and HRPP Rule 48
is our version of a rule so prescribed, which, in Alkire’s case,
required that her trial “commence” within six months of her
arrest:
Rule 48. Dismissal.
. . . .
(b) By Court. Except in the case of traffic offenses
that are not punishable by imprisonment, the court shall,
on motion of the defendant, dismiss the charge, with or
without prejudice in its discretion, if trial is not
commenced within six months:
(1) from the date of arrest . . . .
Although Alkire’s trial started three months after her
arrest, Alkire alleges that her speedy trial rights under the
federal and state constitutions as well as HRPP Rule 48 were
violated because the district court failed to “meaningfully”
commence trial. This is because her trial was continued for
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months at a time and was not concluded until almost seven months
after it began and ten months after her arrest.
Because HRPP Rule 48 “is intended to provide broader
protections than the analogous constitutional [speedy trial]
guarantee,” Fukuoka, 141 Hawaiʻi at 64, 404 P.3d at 330, we
address Alkire’s assertion that HRPP Rule 48 requires a
“meaningful” commencement of trial. Alkire urges this court to
adopt the California Supreme Court’s interpretation of its
speedy trial rule. In Rhinehart, 677 P.2d at 1208, a jury was
impaneled on the day before California’s speedy trial rule would
have been violated, and the judge announced that, due to court
congestion, there would be a five or six day delay before
evidence would be presented. The California Supreme Court held
that “brought to trial” does not mean when a jury is impaneled,
but rather,
an accused is “brought to trial” within the meaning of
[California’s speedy trial rule] when a case has been
called for trial by a judge who is normally available and
ready to try the case to conclusion. The court must have
committed its resources to the trial, and the parties must
be ready to proceed and a panel of prospective jurors must
be summoned and sworn.
677 P.2d at 1211-12.
The language of HRPP Rule 48 differs from the California
rule. HRPP Rule 48 requires that a trial be “commenced” within
a certain time period while the California rule requires that an
accused by “brought to trial” within a certain time. Both rules,
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however, are state rules designed “to prescribe a reasonable
period consistent with constitutional standards[.]” Barker, 407
U.S. at 523. Although “separate and distinct from [the]
constitutional protection to a speedy trial[,]” State v.
Estencion, 63 Haw. 264, 268, 625 P.2d 1040, 1043 (1981), HRPP
Rule 48 is intended to ensure an accused a speedy trial.
Fukuoka, 141 Hawaiʻi at 55, 404 P.3d at 321.
Further,
[s]peedy trial rules are intended to prevent unreasonable
delay in the determination of criminal actions that subvert
the public good and disgrace the administration of justice.
To accomplish this end, HRPP Rule 48(b) requires a court to
dismiss the charge upon the defendant’s motion if trial is
not commenced within 6 months of a relevant triggering
date. The six-month period under HRPP Rule 48 is
equivalent to 180 days. Under HRPP Rule 48(c), there are
eight categories of delay that are to be excluded from
calculating the time within which trial must commence.
State v. Hernane, 145 Hawaiʻi 444, 450, 454 P.3d 385, 391 (2019)
(internal citations, alterations, and quotation marks omitted).
Accordingly, “HRPP Rule 48 operates to ‘ensure an accused a
speedy trial’ and to further ‘policy considerations to relieve
congestion in the trial court, to promptly process all cases
reaching the courts, and to advance the efficiency of the
criminal justice process.’” Fukuoka, 141 Hawaiʻi at 62-63, 404
P.3d at 328-29 (citations omitted).
Thus, HRPP Rule 48 “is intended to provide broader
protections than the analogous constitutional [speedy trial]
guarantee,” Fukuoka, 141 Hawaiʻi at 64, 404 P.3d at 330, but also
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seeks to effectuate constitutional speedy trial interests, which
include the following:
(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.
Of these, the most serious is the last, because the
inability of a defendant adequately to prepare his case
skews the fairness of the entire system. If witnesses die
or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to
recall accurately events of the distant past.
Lau, 78 Hawaiʻi at 64, 890 P.2d at 301 (quoting Barker, 407 U.S.
at 532).
Therefore, we now hold that, in order to effectuate its
intent, HRPP Rule 48 requires a “meaningful” commencement of
trial. We also hold that a trial is “meaningfully” commenced
when a trial court has “reasonably” committed its resources to
the trial, which also requires that the parties be ready to
proceed, and, if applicable, a panel of prospective jurors
summoned and sworn, as held by Rhinehart, 677 P.2d at 1211-12.
As this is a “new rule,” State v. Kaneaiakala, 145 Hawaiʻi 231,
235, 450 P.3d 761, 765 (2019), however, it will only
apply prospectively to events occurring after publication of
this decision, i.e., to trials that commence after the date of
this opinion.8 Thus, this holding does not apply to Alkire’s
case.9
8 As we stated in Lewi v. State, 145 Hawaiʻi 333, 346 n.21, 452 P.3d 330,
349 n.21 (2019):
(continued . . .)
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(. . . continued)
We recognize that we announce a new rule in this case, and
that we are “[f]ree to apply” this new rule “with or
without retroactivity.” State v. Jess, 117 Hawai‘i 381, 401,
184 P.3d 133, 153 (2008) (citation omitted). This court
has generally considered three primary alternatives in
deciding to what degree a new rule is to have retroactive
effect. Id. First, this court may give a new rule “purely
prospective effect, which means that the rule is applied
neither to the parties in the law-making decision nor to
those others against or by whom it might be applied to
conduct or events occurring before that
decision.” Id. (internal quotation marks and citations
omitted). Second, this court may give a new rule “limited
or ‘pipeline’ retroactive effect, under which the rule
applies to the parties in the decision and all cases that
are on direct review or not yet final as of the date of the
decision.” Id. (citations omitted). Third, this court
may give a new rule “full retroactive effect, under which
the rule applies both to the parties before the court and
to all others by and against whom claims may be
pressed.” Id. (internal quotation marks and citations
omitted). Lastly, this court has recognized a fourth
alternative, in which a new rule is given “selective
retroactive effect,” meaning the court applies the new rule
“in the case in which it is pronounced, then return[s] to
the old [rule] with respect to all [other cases] arising on
facts predating the pronouncement.” 117 Hawai‘i at 401 n.19,
184 P.3d at 153 n.19. We have declined to apply this
fourth alternative, as it “violates the principles of
treating similarly situated defendants the same.” Id.(citations omitted).
In exercising our discretion in deciding the effect of a
new rule, we “weigh the merits and demerits” of retroactive
application of the particular rule in light of “(a) the
purpose of the newly announced rule, (b) the extent of
reliance by law enforcement authorities on the old
standards, and (c) the effect on the administration of
justice of a retroactive application of the new
standards.” 117 Hawai‘i at 401-02, 184 P.3d at 153-
54 (internal quotation marks and citations omitted).
The first factor, the purpose of the newly announced rule, would appear
to counsel against a purely prospective application of this new rule, as the
purpose of the newly announced rule is to protect a defendant’s speedy trial
rights. On the other hand, the second factor (reliance by law enforcement on
the old standards) counsels against a full retroactive application of this
new rule, as our trial courts have not been required to consider a
“meaningful commencement” standard for HRPP Rule 48 when setting continued
trial dates. The third factor (the effect on the administration of justice
of the new standards) also counsels against a full retroactive application of
this new rule, as HRPP Rule 40 petitions challenging trial commencements
based on an alleged lack of “meaningful commencement” could arise.
(continued . . .)
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B. Under the circumstances of this case, the prosecutor was
not required to personally review the personnel files of
the testifying police officers to satisfy Brady obligations
In her third question on certiorari, Alkire asks whether
“HRPP Rule 16 usurps United States Supreme Court precedent that
requires individual prosecutors to obtain and disclose
impeachment materials rather than merely relying on
representations of the police to determine whether and what
materials should be disclosed to Defendants.”
As noted in Sections II.B.1 and II.B.3, the district court
denied Alkire’s motion to compel the personnel files of the
testifying police officers based on the prosecutor’s
representation that she had made standard written inquiries to
HPC and HPD and had been informed no exculpatory evidence,
(. . . continued)
See, e.g., Jess, 117 Hawai‘i at 403, 184 P.3d at 155 (concluding that the
third factor counseled against full retroactive effect of new rule, because
“our courts would be inundated with HRPP Rule 40 (2006) petitions filed by
defendants who were sentenced to extended terms from as long ago as 1978[.]”).
On balance, based on the second and third factors, we determine that a
prospective-only application of the new rule is most appropriate. We
anticipate, however, that adoption of this new rule will encourage meaningful
trial commencements.
9 We must therefore also address Alkire’s constitutional speedy trial
claim. This court applies the four-part test set forth by the United States
Supreme Court in Barker, 407 U.S. 514, and adopted in Almeida, 54 Haw. 443,
509 P.2d 549, to determine whether the government has violated a defendant’s
federal and state constitutional rights to a speedy trial. Lau, 78 Hawaiʻi at
62, 890 P.2d at 299. These factors are: “(1) length of the delay; (2)
reasons for the delay; (3) defendant’s assertion of his right to speedy
trial; and (4) prejudice to the defendant.” Id. (citing Barker, 407 U.S. at
533). We have stated that, unless there is a delay in bringing a defendant
that is presumptively prejudicial under factor (1), it is not necessary to
inquire into the other factors. Almeida, 54 Haw. at 447, 509 P.2d at 552.
As Alkire was brought to trial three months after her arrest, there was no
violation of her constitutional rights to speedy trial.
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including evidence regarding truth or veracity, existed in the
files of the testifying police officers. Alkire maintains that
despite this representation, the prosecutor was required to
investigate further by personally reviewing the files for
impeachment materials to satisfy Brady, which, as noted above,
held that “[t]he suppression by the prosecution of evidence
favorable to the accused violates due process where the evidence
is material to guilt or punishment, regardless of the good faith
or bad faith of the prosecution.” Fukusaku, 85 Hawai‘i at 479,
946 P.2d at 49 (quoting State v. Matafeo, 71 Haw. 183, 185, 787
P.2d 671, 672 (1990)).
Under Brady, the government must disclose evidence
favorable to the defense “where the evidence is material either
to guilt or to punishment[.]” Kyles, 514 U.S. at 432 (citing
Brady, 373 U.S. at 87). “[F]avorable evidence is material, and
constitutional error results from its suppression by the
government, ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Kyles, 514 U.S. at 433(quoting Bagley, 473 U.S. at 682).
In Kyles, the United State Supreme Court stated that “the
individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s behalf
in the case, including the police.” 514 U.S. at 437. In Kyles,
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a federal habeas case arising out of a capital murder conviction,
the State had failed to turn over numerous pieces of evidence
favorable to the defendant. 514 U.S. at 431-32. The State
argued that because “some of the favorable evidence in issue
here was not disclosed even to the prosecutor until after trial,”
the State “should not be held accountable under Bagley and Brady
for evidence known only to police investigators and not to the
prosecutor.” 514 U.S. at 438. The Supreme Court rejected this
argument and explained that its precedent imposes on the
prosecutor a “duty to learn of any favorable evidence known to
the others acting on the government’s behalf in the case,
including the police.” 514 U.S. at 437.
Thus, Kyles imposes an affirmative duty on a prosecutor to
learn of favorable evidence known to other government agents,
which must be disclosed if it is “material,” i.e., gives rise to
a reasonable probability that the evidence could lead to a
different result at trial. Youngblood v. West Virginia, 547 U.S.
867, 869-70 (2006) (per curiam). “Material” evidence includes
that pertaining to witness credibility, as when the “reliability
of a given witness may well be determinative of guilt or
innocence,” the nondisclosure of evidence affecting that
witness’s credibility is material. Giglio v. United States, 405
U.S. 150, 154 (1972) (citation omitted). Put another way,
evidence is material “if there is a reasonable probability that,
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had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” State v. Moriwaki,
71 Haw. 347, 356, 791 P.2d 392, 397 (1990) (quoting Bagley, 473
U.S. at 676).
In Kyles, the Court acknowledged that police investigators
sometimes fail to fully inform prosecutors of all that they know,
but it also stated that “procedures and regulations can be
established to carry [the prosecutor’s] burden and to insure
communication of all relevant information on each case to every
lawyer who deals with it.” 514 U.S. at 438 (quoting Giglio, 405
U.S. at 154). Thus, pursuant to Kyles, states may set out
procedural rules to address a prosecutor’s discovery obligations.
We therefore address whether the district court’s refusal to
order the prosecutor to personally review the testifying police
officers’ files in Alkire’s case met the requirements of our
discovery rules.
With respect to discovery obligations under our procedural
rules, “[d]isclosure in criminal cases is governed by HRPP Rule
16, which limits discovery ‘to cases in which the defendant is
charged with a felony,’ . . . except as provided in HRPP Rule
16(d).” State v. Lo, 116 Hawaiʻi 23, 26, 169 P.3d 975, 978
(2007). HRPP Rule 16(d) prescribes rules for discovery when a
defendant is charged with nonfelony and criminal traffic
offenses, and provides that, “[u]pon a showing of materiality
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and if the request is reasonable, the court in its discretion
may require disclosure as provided for in this Rule 16 in cases
other than those in which the defendant is charged with a felony,
but not in cases involving violations.” (Emphasis added.)
Because Alkire was charged with a criminal traffic offense,
HRPP Rule 16(d) applies. HRPP Rule 16(d) provides courts with
discretion to allow discovery in misdemeanor matters upon a
showing of “materiality” and if a request is “reasonable.”
Being that the patrol officer and SFST officer were to be the
only witnesses presented by the State to establish its case
against Alkire, the request for exculpatory impeachment evidence
with respect to these officers was “material” and “reasonable”
for purposes of our discovery rules.
As an officer of the court, the prosecutor in this case
represented that the prosecutor’s office was not in possession
or control of any potentially exculpatory or impeachment
information that had not yet been turned over to the defense.
But under HRPP Rule 16(b)(2), even if discoverable matters are
not within a prosecutor’s possession or control, the prosecutor
has additional obligations:
Upon written request of defense counsel and specific
designation by defense counsel of material or information
which would be discoverable if in the possession or control
of the prosecutor and which is in the possession or control
of other governmental personnel, the prosecutor shall use
diligent good faith efforts to cause such material or
information to be made available to defense counsel; and if
the prosecutor’s efforts are unsuccessful the court shall
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issue suitable subpoenas or orders to cause such material
or information to be made available to defense counsel.
(Emphasis added.) Thus, because the officers’ files were not
within the prosecutor’s possession, she was obligated to
exercise “diligent good faith efforts to cause such material or
information to be made available to defense counsel[,]” if such
material was “in the possession or control of other governmental
personnel.” HRPP Rule 16(b)(2).
In this regard, the prosecutor further represented she had
made affirmative inquiries to both the HPC and the HPD for
information pertaining to the truth or veracity of the
testifying police officers and was informed that no such
information existed. Under the circumstances of this case, we
conclude these efforts of the prosecutor constituted “diligent
good faith efforts to cause such material or information to be
made available to defense counsel[,]” satisfying HRPP Rule
16(d)(2) and Kyles.
Our analysis does not, however, end here. As we stated in
State v. Tetu, 139 Hawaiʻi 207, 386 P.3d 844 (2016), HRPP Rule 16
does not set an outer limit on this court’s power to ensure a
defendant’s Hawaiʻi Constitution, article I, section 5 due
process right to a fair trial, which requires that
“a defendant be given a meaningful opportunity to present a
complete defense and that discovery procedures provide the
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maximum possible amount of information and a level-playing field
in the adversarial process.” 139 Hawaiʻi at 214, 220, 386 P.3d
at 851, 857. And as noted in State v. Bowe, 77 Hawaiʻi 51, 881
P.2d 538 (1994), we are not bound to give the state due process
clause the same interpretation as given under the United States
Constitution. 77 Hawaiʻi at 58, 881 P.2d at 545. Thus, state
due process rights are also implicated in discovery requests.
We have also stated, however, that “due process is flexible
and calls for such procedural protections as the particular
situation demands.” State v. Mundon, 121 Hawaiʻi 339, 359, 219
P.3d 1126, 1146 (2009) (citation omitted). Under the
circumstances, we conclude that the State satisfied its
obligations with respect to Alkire’s rights under Hawaiʻi’s due
process clause with its inquiries of HPD and HPC, which came
back negative.
For all of these reasons, the district court did not abuse
its discretion in not requiring the prosecutor to personally
review the testifying officers’ personnel files.
C. As the video recording was material to Alkire’s defense and
her request was reasonable, the district court abused its
discretion in denying her motion to compel the video
recording
1. The video recording was material and Alkire’s request
was reasonable
In the fourth and last question on certiorari, Alkire
contends that the district court abused its discretion with
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respect to her motion to compel production of the video
recording. As discussed in Section IV.B above, HRPP Rule 16(d)
allows a trial court in a criminal traffic case to, in its
discretion, require disclosure as provided by HRPP Rule 16,
“[u]pon a showing of materiality and if the request is
reasonable.” The district court denied Alkire’s motion to
compel video recording on the grounds Alkire had not shown that
a “video recording of [Alkire] exists or that it is material[.]”
Because Alkire’s request was both “reasonable” and “material,”
the district court abused its discretion in denying her motion
to compel video recording.
First, Alkire’s request was reasonable. We first note that
the State does not even argue that Alkire’s request was
unreasonable. And with respect to reasonableness, contrary to
the district court’s ruling, Alkire showed that the video
recording should have existed at the time she sent her request
to preserve evidence. Alkire attached as exhibits to her motion
(1) a copy of the HPD policy requiring video monitoring of all
detainees in holding cells; (2) a transcript from a prior
unrelated hearing where Sgt. Tong from the HPD Central Receiving
Division explained that HPD retains video recordings for “20 to
25 days” before it is written over, unless a request to preserve
or subpoena is received; (3) a letter from Sgt. Tong regarding a
discovery request for another case where Sgt. Tong stated that
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(a) video recordings of the Kalihi Police Station “exist for a
period of 30 days after the day and time it was recorded;” and
(b) “cameras at the District 5 Kalihi Police Station are
positioned to get maximum viewing angle of the exterior of the
police station and all access points to the station[]” and
provide “surveillance viewing of the adult and juvenile
processing and cellblock areas[]”; and (4) Alkire’s request to
preserve evidence, which was sent to the HPD Central Receiving
Division just five days after her arrest. Thus, the HPD under
its procedures would have possessed the video recording when it
received a request to preserve evidence, and it would not have
been burdensome for the State to preserve and then produce the
video recording. Thus, Alkire’s request was reasonable.
Second, the video recording of Alkire at the Kalihi Police
Station is “material” to challenging the police officers’
testimony that Alkire demonstrated indicia of intoxication. See
Lo, 116 Hawaiʻi at 27, 169 P.3d at 979 (holding that information
regarding the calibration of laser units operated by the police
was “material to challenging the accuracy of the particular
laser unit,” which provided the sole basis for the defendant’s
charge of excessive speeding).10 Here, the district court found
10 Other jurisdictions have also concluded that police video recordings
are material to the defense when the defendant is charged with impairment or
intoxication. See, e.g., Koonce v. District of Columbia, 111 A.3d 1009, 1015
(D.C. 2015) (“[V]ideo of a person just arrested for driving under the
(continued . . .)
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Alkire guilty based solely on the indicia of impairment observed
by the police officers. Thus, the video recording of Alkire at
the Kalihi Police Station shortly after her arrest is material
to challenging the police officers’ testimony about the indicia
of impairment that they allegedly observed. Moreover, the video
recording could lead to the discovery of other admissible
evidence.11
2. Before any retrial, the district court must conduct
another hearing regarding the video recording
On remand, before any retrial, the district court must hold
a hearing to determine if the video recording was preserved. As
we stated in Matafeo:
In Brady v. Maryland, the United States Supreme Court held
that the suppression by the prosecution of evidence
favorable to the accused violates due process where the
evidence is material to guilt or punishment, regardless of
the good faith or bad faith of the prosecution. The Brady
rule has been incorporated into the Hawaiʻi due
process jurisprudence and relied upon frequently by this
court.
. . . .
(. . . continued)
influence or operating a vehicle while impaired is material in that it may
assist in showing whether the person was acting in a way consistent with
intoxication or impairment.”); State v. Ferguson, 2 S.W.3d 912, 918 (Tenn.
1999) (concluding that videotape of sobriety test at police station was “at
least material to the preparation of defendant’s defense”). See also State v.
Zinsli, 966 P.2d 1200, 1205 (Or. Ct. App. 1998) (holding that a dashboard
camera video of a defendant performing a field sobriety test was material to
the defense “because its replay would have given defendant a unique
opportunity to permit the jurors to form their own opinions as to defendant’s
intoxication level.”).
11 As discovery of the video recording should have been permitted under
HRPP Rule 16, we need not reach the issue of whether state constitutional due
process also mandated its discovery under Tetu, 139 Hawaiʻi 207, 386 P.3d 844.
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This court has held that the duty of disclosure is
operative as a duty of preservation, and that principle
must be applied on a case-by-case basis[.]
In certain circumstances, regardless of good or bad faith,
the State may lose or destroy material evidence which is so
critical to the defense as to make a criminal trial
fundamentally unfair without it.
71 Haw. at 185, 187, 787 P.2d at 672-73 (citations, alterations,
and quotation marks omitted).
Thus, based on due process considerations, if the video
recording was not preserved, as indicated in Matafeo, the
district court must first determine whether it was so critical
to Alkire’s defense as to make a criminal trial fundamentally
unfair without it. If the district court determines that it was,
regardless of good or bad faith, it must dismiss the charge
against Alkire. State v. Steger, 114 Hawaiʻi 162, 169-70, 158
P.3d 280, 287-88 (App. 2006) (citing Matafeo, 71 Haw. at 187,
787 P.2d at 673). If the recording was not preserved and the
district court determines, however, that the video recording is
not so critical to Alkire’s defense as to make a criminal trial
fundamentally unfair without it, the district court should then
fashion an appropriate remedy.
In civil cases, this court has recognized that trial courts
have authority “to fashion a remedy to cure prejudice suffered
by one party as a result of another party’s loss or destruction
of evidence.” Stender v. Vincent, 92 Hawai‘i 355, 362, 992 P.2d
50, 57 (2000) (internal quotation marks and citation omitted).
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Where evidence has been lost or destroyed, the trier of fact may
draw an adverse inference that the lost evidence was unfavorable
to the spoliator. 92 Hawai‘i at 364-65, 992 P.2d at 59-60.
We therefore now hold that the permissive adverse inference
rule also applies to criminal cases where, as here, the State
should have had a recording in its possession and, despite the
accused’s timely request to preserve the evidence, the video
recording was apparently lost or destroyed. See People v.
Strife, 167 A.D.3d 1095, 1098 (N.Y. App. Div. 2018) (holding
that the trial court “erred by failing to provide a permissive
adverse inference charge based upon the [State’s] failure to
preserve a copy of the booking room video on the night of
defendant’s arrest”); People v. Handy, 988 N.E.2d 879, 882 (N.Y.
2013) (“[A] permissive adverse inference charge should be given
where a defendant, using reasonable diligence, has requested
evidence reasonably likely to be material, and where that
evidence has been destroyed by agents of the State.”).
V. Conclusion
Based on the reasons discussed above, we vacate the ICA’s
February 25, 2019 judgment on appeal, which affirmed the
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district court’s August 30, 2017 judgment, and we remand to the
district court for further proceedings in accordance with this
opinion.
Richard L. Holcomb /s/ Sabrina S. McKenna
for petitioner/defendant-
appellant /s/ Richard W. Pollack
Donn Fudo /s/ Michael D. Wilson
for respondent/plaintiff-
appellee
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