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Electronically Filed
Supreme Court
SCWC-13-0003062
05-DEC-2016
10:24 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
ROBERT TETU,
Petitioner/Defendant-Appellant.
SCWC-13-0003062
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0003062; CR. NO. 10-1-0833)
DECEMBER 5, 2016
McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J.,
CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J.
This case presents the question of whether a defendant
charged with committing a criminal offense on private property
has a right to visit the crime scene. We hold that the
constitutional provisions providing for effective assistance of
counsel and a fair trial afford a defendant, subject to
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appropriate restrictions, with the right to access the scene of
the alleged offense.
I. BACKGROUND
A. Circuit Court Proceedings
On March 25, 2010, at about 2:00 a.m., a surveillance
camera filmed Robert Tetu, who was wearing a backpack, entering
the uninhabited basement area of Maunaihi Terrace, a private
condominium building in Honolulu. The video footage recorded
Tetu entering into two locked utility closets with an unknown
tool and wiping the door knobs afterwards with his jacket. 1 Tetu
is then seen leaving the closet with a backpack-type bag in one
hand, a black plastic garbage bag in the other hand, and a “mini
mag light type flash light” in his mouth. The next day, after
reviewing the video footage, the condominium manager inspected
the storage closets and noticed that an electric grinder and
several emergency lights and batteries were missing.
On May 24, 2010, Tetu was charged with burglary in the
second degree in violation of Hawaii Revised Statutes
(HRS) § 708-811 (1993). 2 As part of discovery, the defense
1
“Storage closets” and “utility closets” are used interchangeably.
2
HRS § 708-811 provides in relevant part,
(1) A person commits the offense of burglary in the second
degree if the person intentionally enters or remains
unlawfully in a building with intent to commit therein a
crime against a person or against property rights.
(continued. . .)
2
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received the police reports, which included copies of the
surveillance footage, eight photographs, and two diagrams of the
basement where the utility closets were located. The
photographs showed the fire-exit door through which Tetu
entered, the short hallway where the surveillance camera was
located, the exterior doors to the utility closets, and a few
items on the shelves inside one of the storage closets. Tetu’s
counsel went to Maunaihi Terrace on November 18, 2010 in order
to inspect the premises, but he was denied access and told to
“coordinate an inspection through the resident manager.”
Thereafter, defense counsel sent an email to the condominium
manager to arrange a visit. The email, which was copied to the
prosecutor, informed the manager that the prosecutor was also
interested in visiting the condominium. In response to the
email, the manager told Tetu’s counsel that the request would be
presented to the condominium homeowner’s association or board of
directors. Counsel, however, did not receive a further
response.
Tetu filed a pretrial motion to compel discovery in
the Circuit Court of the First Circuit (circuit court) 3
(. . .continued)
(2) Burglary in the second degree is a class C felony.
HRS § 708-811.
3
The Honorable Colette Y. Garibaldi presided.
3
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requesting access to the condominium premises, arguing that
“location is everything” and that “[t]he defense must examine
the area from its own perspective.” The motion provided four
reasons why access to the condominium was necessary. First,
“[t]he State’s diagrams, video[,] and photograph discovery d[id]
not adequately orient [Tetu] and [his] counsel to the area in
question for purposes of cogently presenting this case to a
jury.” Second, the footage only included a “partial photo” of
the interior of one of the utility closets. Third, noting that
the diagrams were not drawn to scale, the defense requested
access to “help counsel to intelligently question and cross-
examine witnesses, present visual evidence to the jury and to
understand the account” of Tetu, who was in custody. Fourth,
access was needed to “photograph areas which may be significant
to the defense if they are not already depicted in the discovery
already produced.” The motion requested that the court issue an
order directing the prosecution “to make Maunaihi Terrace
available for inspection, measurement, and photographs” or
directing the complaining witness to make the premises available
under reasonable conditions.
The State opposed the motion, arguing that Rule 16 of
the Hawaiʻi Rules of Penal Procedure (HRPP) (2012) only required
the prosecution to deliver material and information within the
prosecutor’s possession or control or in the possession or
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control of other governmental personnel. The State also argued
that because eight months had passed before defense counsel
first attempted to access the condominium and fifteen months had
elapsed since the incident, any inspection or photographs taken
of the premises would not accurately depict the scene at the
time of the offense and would not be relevant or admissible
under Rule 401 4 and Rule 402 5 of the Hawaii Rules of Evidence
(HRE). Alternatively, the State contended that, even if access
to the premises was relevant, access should be barred under HRE
Rule 403 6 because it would be cumulative of the materials already
provided to Tetu by the prosecution.
4
HRE Rule 401 states in pertinent part,
“Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.
HRE Rule 401 (1993).
5
HRE Rule 402 provides,
All relevant evidence is admissible, except as otherwise
provided by the Constitutions of the United States and the
State of Hawaii, by statute, by these rules, or by other
rules adopted by the supreme court. Evidence which is not
relevant is not admissible.
HRE Rule 402 (1993).
6
HRE Rule 403 states,
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
HRE Rule 403 (1993).
5
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A hearing was held on the motion to compel discovery.
No representatives from Maunaihi Terrace were present. Defense
counsel argued that Tetu’s constitutional rights to effective
representation and to confront witnesses would override any
privacy considerations. The circuit court concluded, however,
that any evidence at the condominium would not be relevant under
HRE Rule 401. The court also determined that because there was
video surveillance, there was “no real plausible justification”
for access to the crime scene. The court stated that Tetu’s
request for access “appears to be speculative and conjecture
with a hope to turn up something.” Additionally, the court
noted that because time had passed since March 2010, access to
the condominium might not have been helpful. Accordingly, the
court held that HRPP Rule 16 did not apply to Tetu’s request for
access and denied the motion to compel.
Approximately two months later, the prosecution--
without defense counsel’s knowledge--visited the crime scene
with the condominium manager to inspect the basement and take
additional photographs. When the defense was provided with
these new photographs prior to trial, Tetu sought to exclude
their admission into evidence. The defense argued that fairness
demanded that the prosecution not be allowed to visit the crime
scene and collect evidence for presentation at trial after the
defense’s request to do the same was denied. The prosecutor
6
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stated that she went to the condominium to take additional
photographs so that the jurors could have “a bigger or a better
idea” of what the condominium building looked like. Tetu’s
counsel argued that this was inconsistent with the State’s
earlier position that there was “no need” to take additional
photographs of the alleged crime scene. 7
In response to the court’s question regarding the two
sets of photographs, defense counsel stated that while the new
photographs showed differences in the closets’ contents, major
differences were not apparent. The court concluded that because
of the existence of the video footage and the facts of the case,
it stood by its original ruling denying the motion to compel
discovery. 8 The court also denied the defense’s motion to
exclude admission of the prosecution’s newly obtained
photographs.
7
There was a change in the assigned prosecutor between the
defense’s motion to compel discovery and the hearing to exclude the
additional photographs.
8
The circuit court noted, “I do recall the earlier motion [to
compel discovery] as well since the Court presided over it.” The court
referenced Henshaw v. Commonwealth, 451 S.E.2d 415 (Va. Ct. App. 1994), a
case in which the defense counsel requested access to the crime scene based
on reasons very similar to those Tetu’s counsel had articulated. There, the
Court of Appeals of Virginia held that although defense counsel should have
been granted access to the crime scene, the error was harmless. Id. at 420.
The circuit court distinguished Henshaw from Tetu’s request because, in
Henshaw, there was no video surveillance and one of the claims was self-
defense in which specifications of a room’s height, width, and length were
relevant.
7
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At trial, the State’s first witness was the
condominium manager. Using a blueprint of the condominium, the
prosecution asked the manager to orient the court to the
location of the elevators and the utility closets in the
basement of the building.
[Manager]: Well, there’s elevator mauka and elevator makai,
and it’s called electrical closet and it’s called
stor[age], but it’s another electrical closet.
[Prosecutor]: Okay. So they’re right across from each
other, the two utility rooms?
[Manager]: Yes, and that’s the little hallway there.
The prosecution used the photographs that the defense had moved
to exclude to identify several objects and rooms shown in the
photographs. Next, the prosecution played the surveillance
video for the jury and asked the manager to narrate what he saw
and to place the events of the video in context with the
building’s layout.
[Prosecution]: And what part of the basement is that?
[Manager]: He just headed towards the laundromat, the
laundry room.
[Prosecution]: And is there a hallway that connects all
sides of the basement to the elevators?
[Manager]: Sorry, yes. There’s another hallway just like
this right on that side where he just emerged from.
The manager described Tetu breaking into two of the closets with
some kind of tool, wiping the door handles with his jacket, and
leaving the closets with a bag of “stuff” and a flashlight in
his mouth. The manager testified that the wood around the door
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knobs was damaged after the incident and that only those persons
with keys had access to the storage closets, as he always kept
the doors to the closets locked.
Tetu’s counsel cross-examined the condominium manager
and likewise attempted to establish the layout of the basement
area where the utility closets were located.
[Defense]: When we went over the photographic evidence, you
made reference to a makai utility room and a mauka utility
room, correct?
[Manager]: Yes.
[Defense]: Okay. And when I saw some reports referenced to
east and northeast utility closets, do you ever use those
distinctions?
[Manager]: I don’t, no.
[Defense]: So if there’s a reference to an east closet,
would you be able to tell us if that’s the mauka or makai
one?
[Manager]: I’ve never heard it referred to as the east or -
- or what did you say?
[Defense]: Northeast. So your distinction is mauka-makai?
[Manager]: Yes.
. . . .
[Defense]: Okay. Sir, I’m going to show you Exhibits 23
and 24 in evidence. I’ll ask you -- this is 23. Which --
which utility closet is this one?
[Manager]: This is the mauka utility closet.
[Defense]: And, okay, and 24 would be makai?
[Manager]: It’s the same -- no, it’s the same one.
[Defense]: It’s the same closet?
[Manager]: Yeah.
[Defense]: Oh, okay. Sorry. Oh, my mistake. Okay.
9
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Tetu testified that he did what was shown on the
video, but that he entered the building to retrieve his then-
wife’s clothing and not to steal anything. Tetu explained that
he had been arguing with his former wife, with whom there was a
substantial language barrier, when he dropped her off near
Manauihi Terrace a few hours prior to the incident. He
testified that she called him to pick her up and that when he
arrived, she let him into the building. Tetu stated that he
went in to help her pick up her bag, and she told him that it
was in a closet by an elevator. Tetu explained that he used a
piece of wire to open the closet, which is where he found his
former wife’s bag. He related that he looked inside the bag to
make sure it contained her clothes and left without taking
anything else. Tetu testified that there were more valuable
things in the closet, such as a computer, and that if he had
intended to take anything, it would not have been a flashlight
and some batteries.
Tetu’s former wife testified as a rebuttal witness for
the State. She related that she never asked Tetu to pick up a
bag of her clothes and that she had never been to Maunaihi
Terrace or stored anything there.
In its closing argument, the defense argued that
because Tetu entered with the intent to retrieve his former
wife’s clothing and not to steal anything, Tetu was a
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trespasser, not a burglar. The court instructed the jury on the
elements of burglary in the second degree and criminal trespass
in the first degree under HRS § 708-813 (Supp. 2000). 9 The jury
found Tetu guilty of burglary in the second degree, and he was
sentenced to five years of imprisonment.
B. Appellate Proceedings
Tetu appealed the judgment of conviction to the
Intermediate Court of Appeals (ICA), arguing that (1) the
circuit court erred in denying his discovery request to access
the crime scene and that (2) the verdict was not supported by
the evidence adduced at trial. The State responded that the
right to discovery in a felony case is the right to receive
material and information possessed by the prosecution and its
agents concerning the case. Because the State did not possess
9
HRS § 708-813 provides in relevant part,
(1) A person commits the offense of criminal trespass
in the first degree if:
(a) That person knowingly enters or remains
unlawfully:
(i) In a dwelling; or
(ii) In or upon the premises of a hotel or
apartment building.
. . . .
(2) Criminal trespass in the first degree is a
misdemeanor.
HRS § 708-813.
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or have control over Maunaihi Terrace, the State maintained that
defense counsel did not have a right under HRPP Rule 16 to
compel discovery of the condominium. Further, the State argued
that the appearance and configuration of the condominium more
than a year after the incident rendered Tetu’s reasons for
requesting access irrelevant. In response, Tetu contended that
the passage of time alone does not diminish the importance of
accessing the crime scene and that inspecting areas of the
property would have likely shown an exit-only door with no signs
of forced entry, corroborating that his former wife let him into
the condominium.
The ICA issued a memorandum opinion affirming Tetu’s
conviction. Citing case law from other states, the ICA observed
that the court must balance the defendant’s need for access to
the crime scene with the private party’s right to privacy. The
ICA noted, “A speculative or conclusory showing, or the failure
to explain how the proposed inspection would yield information
different from that already disclosed in discovery, is
insufficient to overcome the privacy rights of the private
party.” The ICA held that a defendant must “make a prima facie
showing of how the proposed inspection would be relevant and
material to his or her defense” and “demonstrate sufficient
‘plausible justification’ and ‘good cause’ for the intrusion.’”
The ICA ruled that Tetu did not sufficiently explain to the
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circuit court how becoming familiar with the scene was relevant
to his defense. Thus, it affirmed the circuit court’s order
denying Tetu’s motion to compel discovery. The ICA also
rejected Tetu’s claim that there was insufficient evidence to
support his conviction.
This court granted certiorari to address the following
questions raised by Tetu: (1) whether the ICA erred in affirming
the circuit court’s denial of the motion to compel discovery;
and (2) whether the ICA erred in finding that Tetu’s conviction
was supported by substantial evidence.
II. STANDARD OF REVIEW
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); accord State v. Mundon, 121
Hawaiʻi 339, 349, 219 P.3d 1126, 1136 (2009). Therefore,
questions of constitutional law are reviewed under the
right/wrong standard. Phua, 135 Hawaiʻi at 512, 353 P.3d at
1054; accord State v. Auld, 136 Hawaiʻi 244, 250, 361 P.3d 471,
477 (2015).
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III. DISCUSSION
A. Motion to Compel Discovery
1. Right to Access the Crime Scene Under HRPP Rule 16
The issue of whether a defendant has a right to
inspect the crime scene is one of first impression before this
court. A defendant has a right under HRPP Rule 16 10 to discover
“material and information within the prosecutor’s possession or
control.” HRPP Rule 16 (2012). Because the State was not in
possession of Maunaihi Terrace, HRPP Rule 16 does not expressly
provide the defense with access to the crime scene. 11 However,
10
HRPP Rule 16 provides in relevant part,
(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:
. . . .
(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.
HRPP Rule 16 (2012).
11
The State cited Honolulu Police Dep’t v. Town, 122 Hawaiʻi 204,
225 P.3d 646 (2010), in which this court stated that “the discovery right is
governed and limited by HRPP Rule 16.” Id. at 214, 225 P.3d at 656.
However, the discovery right under HRPP Rule 16 cannot limit a constitutional
(continued. . .)
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the HRPP Rule 16 discovery right does not purport to set an
outer limit on the court’s power to ensure a defendant’s
constitutional rights. See United States v. Yoshimura, 831 F.
Supp. 799, 805 (D. Haw. 1993) (“In criminal cases discovery is
limited to that required by the due process clause of the
Constitution, which requires that the Government make available
evidence that is material to guilt or punishment.”); see also
United States v. Richter, 488 F.2d 170, 173 (9th Cir. 1973)
(stating that although discovery was not allowed under Federal
Rules of Criminal Procedure Rule 16, “the rules themselves do
not purport to set outer limits on the power of the court”).
Accordingly, we consider whether there is a constitutional right
to access a crime scene when the defendant is alleged to have
committed the offense on private property. 12
(. . .continued)
right. See State v. Pond, 118 Hawaiʻi 452, 481, 193 P.3d 368, 397 (2008)
(“The impairment of a defendant’s constitutional rights must be considered
and weighed against the imposition of a rule excluding evidence. Failure to
do so impermissibly relegates the defendant’s constitutional rights to that
of rule status.”); cf. State v. Calbero, 71 Haw. 115, 124, 785 P.2d 157, 161
(1989) (noting that an evidence rule “cannot override the constitutional
rights of the accused”). To the extent that Town indicated that the
discovery right is “governed and limited” by HRPP Rule 16, it is overruled.
12
Although it is not necessary to determine in this case, HRPP Rule
17 may allow a court to use its subpoena power to grant access to a crime
scene. HRPP Rule 17(b) authorizes a court to issue a subpoena to “command
the person to whom it is directed to produce the books, papers, documents or
other objects . . . prior to the time when they are to be offered in evidence
and may upon their production permit . . . [the objects] to be inspected by
the parties and their attorneys.” HRPP Rule 17(b) (2007). In Commonwealth
v. Matis, 915 N.E.2d 212 (Mass. 2006), the Supreme Judicial Court of
Massachusetts interpreted Massachusetts Rules of Criminal Procedure Rule
17(a)(2), which is nearly identical to HRPP Rule 17(b), to authorize the
court to compel access to the complainant’s home where a sexual assault
(continued. . .)
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2. Constitutional Right to Access the Crime Scene
a. Right to Effective Assistance of Counsel
Article I, section 14 of the Hawaiʻi Constitution
guarantees a defendant in a criminal prosecution the right “to
have the assistance of counsel for the accused’s defense.” 13
Haw. Const. art I, § 14. The constitutional right to the
assistance of counsel is satisfied “only when such assistance is
‘effective.’” State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977,
979 (1972) (internal citations omitted). A counsel’s
effectiveness is not determined only by what happens at trial,
and a court may find a counsel’s assistance is ineffective if
(. . .continued)
allegedly occurred. Id. at 634-35. “The fact that the object here cannot be
physically brought to court by the third party makes no difference. Its
features can be introduced in evidence, and an order for pretrial access
under rule 17(a)(2) will expedite the use of such evidence at trial.” Id. at
635. The Massachusetts court noted that requests under Rule 17(a)(2) must
be, inter alia, evidentiary and relevant. Id.
While HRPP Rule 17 is “not a rule providing for an additional
means of discovery,” Town, 122 Hawaiʻi at 214, 225 P.3d at 656 (quoting State
v. Pacarro, 61 Haw. 84, 86, 595 P.2d 295, 297 (1979)), the features of a
crime scene are routinely admissible into evidence.
13
Article I, section 14 of the Hawaiʻi Constitution provides in
relevant part,
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial by an impartial jury of
the district wherein the crime shall have been committed,
which district shall have been previously ascertained by
law, or of such other district to which the prosecution may
be removed with the consent of the accused; to be informed
of the nature and cause of the accusation; to be confronted
with the witnesses against the accused . . . and to have
the assistance of counsel for the accused’s defense.
Haw. Const. art I, § 14.
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counsel failed to conduct adequate pretrial investigations.
State v. Aplaca, 74 Haw. 54, 67-71, 67 n.2, 837 P.2d 1298, 1305-
07, 1305 n.2 (1992) (noting that “under Hawaii’s Constitution,
defendants are clearly afforded greater protection of their
right to effective assistance of counsel” than under the United
States Constitution). Additionally, this court observed in
Aplaca that “[i]f counsel does not adequately investigate the
underlying facts of a case[,] . . . counsel’s performance cannot
fall within the ‘wide range of reasonable professional
assistance.’ This is because a decision not to investigate
cannot be considered a tactical decision.” Id. at 71, 837 P.2d
at 1307 (quoting State v. Templin, 805 P.2d 182, 188 (Utah
1990)). The standard for determining the adequacy of counsel’s
representation is “whether, when viewed as a whole, the
assistance provided is ‘within the range of competence demanded
of attorneys in criminal cases.’” State v. Antone, 62 Haw. 346,
348, 615 P.2d 101, 104 (1980) (quoting Kahalewai, 54 Haw. at 30,
501 P.2d at 979). Thus, a defendant in a criminal case is
entitled to counsel who will represent him or her with the
competence generally demanded of defense attorneys. See id.
A review of several jurisdictions’ codes and
performance standards for defense attorneys indicates that in
order to assure competent representation, defense counsel should
investigate the crime scene and consider seeking access as early
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as possible, unless circumstances suggest it would be
unnecessary in a given case. The American Bar Association’s ABA
Standards for Criminal Justice: Prosecution and Defense Function
(ABA Standards) states, “Many important rights of a criminal
client can be protected and preserved only by prompt legal
action.” Id. § 4-3.7(a) (4th ed. 2015). Thus, “[d]efense
counsel should promptly seek to obtain and review all
information relevant to the criminal matter, including but not
limited to requesting materials from the prosecution.” Id. § 4-
3.7(b). In addition to seeking information from other sources
aside from law enforcement, see also id. § 4-4.1(c), counsel for
a defendant has a specific duty with regard to investigating a
case. “Defense counsel’s investigative efforts should commence
promptly and should explore appropriate avenues that reasonably
might lead to information relevant to the merits of the matter .
. . .” Id. 14
14
“The duty to investigate is not terminated by factors such as the
apparent force of the prosecution’s evidence, a client’s alleged admissions
to others of facts suggesting guilt, a client’s expressed desire to plead
guilty or that there should be no investigation, or statements to defense
counsel supporting guilt.” ABA Standards § 4-4.1(b).
“Counsel’s investigation should also include evaluation of the
prosecution’s evidence (including possible re-testing or re-evaluation of
physical, forensic, and expert evidence) and consideration of
inconsistencies, potential avenues of impeachment of prosecution witnesses,
and other possible suspects and alternative theories that the evidence may
raise.” Id. § 4-4.1(c).
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The commentary to the ABA Standards emphasizes that
“without adequate investigation[,] the lawyer is not in a
position to make the best use of such mechanisms as cross-
examination or impeachment of adverse witnesses at trial.” 15 Am.
Bar Ass’n, ABA Standards for Criminal Justice: Prosecution
Function and Defense Function § 4-4.1 Commentary, at 183 (3d ed.
1993). The commentary further states that if there were
eyewitnesses to the alleged crime, then “the lawyer needs to
know conditions at the scene that may have affected their
opportunity as well as their capacity for observation.” Id.
The National Legal Aid and Defender Association’s
(NLADA) Performance Guidelines for Criminal Defense
Representations, which was adopted by the Defender Services
Advisory Group in 2015, also recommends early inspection of the
crime scene:
Counsel should consider seeking access to the scene as soon
as possible, accompanied by appropriate personnel to assist
in documenting conditions. Counsel should consider seeking
access to the scene under circumstances as similar as
possible to those existing at the time of the alleged
incident (e.g., weather, time of day, and lighting
conditions), if different from the initial view of the
scene.
Nat’l Legal Aid & Def. Ass’n, NLADA’s Performance Guidelines for
Criminal Defense Representations § 4.1(b)(6), at 10 (1995).
15
The commentary for the most recent fourth edition of the ABA
Standards, published in 2015, is not yet available. Thus, the prior
edition’s commentary for the predecessor standard is referenced.
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Chapter 211D of the Massachusetts General Laws
establishes the Committee for Public Counsel Services that is
responsible for establishing standards and monitoring the
performance of counsel “in order to insure competent
representation of defendants.” Mass. Gen. Laws ch. 211D, §§ 1,
10 (1990). In its Performance Standards Governing
Representation of Indigents in Criminal Cases, the Committee
states, “Counsel should go to the scene of the alleged crime in
a timely manner--prior to the pre‐trial hearing when necessary--
or prior to an evidentiary hearing or trial. Counsel should
consider obtaining fair and accurate photographs, fair and
accurate maps of the area and, where relevant, measurements.”
Comm. for Pub. Counsel Servs., Criminal: Performance Standards
and Complaint Procedures, in Assigned Counsel Manual Policies
and Procedures Ch. 4, Part I (IV)(A) (2011).
Similarly, Louisiana Revised Statutes section 15:146
(2014) establishes the Louisiana Public Defender Board that is
charged with, inter alia, “[c]reating mandatory qualification
standards for public defenders that ensure that the public
defender services are provided by competent counsel.” La. Rev.
Stat. § 15:148(B)(2) (2008). The Public Defender Board’s Trial
Court Performance Standards provides, “Where appropriate,
counsel should attempt to view the scene of the alleged offense
as soon as possible after counsel is appointed. This should be
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done under circumstances as similar as possible to those
existing at the time of the alleged incident.” La. Pub. Def.
Bd., Louisiana Public Defender Board Trial Court Performance
Standards § 717(B)(6), at 14 (2010). Further, in its
performance standards for representation in capital cases, the
Public Defender Board states that “[c]ounsel should conduct a
high quality, independent and exhaustive investigation of all
available sources of information utilizing all available tools
including live witness interviews, compulsory process, public
records law, discovery, [and] scene visits[.]” La. Pub. Def.
Bd., Performance Standards for Criminal Defense Representation
in Indigent Capital Cases § 1907(B)(1) (2015). The Board
elaborates that counsel should take full advantage of the direct
observations of relevant locations, noting that
[c]ounsel should attempt to view the scenes of the alleged
offense and other relevant events as soon as possible after
counsel is assigned [and] . . . should extensively,
precisely, and accurately document the condition of any
relevant scene using the most appropriate and effective
means, including audio-visual recordings, diagrams, charts,
measurements, and descriptive memoranda. The condition of
the scenes should always be documented in a manner that
will permit counsel to identify and prove the condition of
the scenes without personally becoming a witness.
Id. § 1907(B)(8)(f)(i).
The State Bar of Texas in its Performance Guidelines
for Non-Capital Criminal Defense Representation likewise states
that “[w]hen appropriate, counsel or an investigator should
attempt to view the scene of the alleged offense as soon as
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possible after counsel is appointed or retained. . . . Counsel
should consider the taking of photographs and the creation of
diagrams or charts of the actual scene of the offense.” State
Bar of Tex., Performance Guidelines for Non-Capital Criminal
Defense Representation § 4.1(B)(8) (2011). Many other states
have developed similar performance standards recommending that
defense counsel visit the crime scene as appropriate. See, e.g,
N.D. Comm’n on Legal Counsel for Indigents, Minimum Attorney
Performance Standards: Criminal Matters § 7.1 (6) (“Where
appropriate, counsel should attempt to view the scene of the
alleged offense as soon as possible after counsel is appointed.
. . . Counsel should consider the taking of photographs and
creation of diagrams or charts of the actual scene of the
offense.”); accord Va. Indigent Def. Comm’n, Commonwealth of
Virginia Standards of Practice for Indigent Defense § 4.1(b)(5)
(2015); N.M. Pub. Def. Comm’n & the Law Offices of the Pub.
Def., Performance Standards for Criminal Defense Representation
§ 4.1(b)(7) (2014); S.C. Comm’n on Indigent Def., Performance
Standards for Public Defenders and Assigned Counsel (Non-
Capital) § 4.1(b)(7) (2013); Ga. Pub. Def. Standards Council,
State of Georgia Performance Standards for Criminal Defense
Representation in Indigent Criminal Cases § 4.A(B)(f) (2004).
Thus, defense counsel’s investigation of the crime scene has
been widely recognized as an essential task in providing legal
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assistance within the range of competence demanded of attorneys
in criminal cases.
Some courts have concluded that defense counsel’s
access to the crime scene implicates a defendant’s right to
effective assistance of counsel. In affirming a family court’s
discovery and inspection order, the New Jersey Supreme Court in
State in Interest of A.B., 99 A.3d 782, 789, 794 (N.J. 2014),
held that a defendant’s constitutional right to a fair trial
allowed the defendant’s counsel to access the residence where a
sexual assault had allegedly occurred. The court determined
that “[t]he right to the effective assistance of counsel in a
criminal proceeding includes the right to conduct a reasonable
investigation to prepare a defense,” id. at 785, and that a
“defense attorney’s visit to the scene of the crime . . . might
constitute a professional obligation.” Id. at 793. The court
further noted that “[v]isiting the scene of the crime can be
critical in preparing a defense” and “the failure of a defense
attorney ‘to conduct an investigation of the crime scene’ can
constitute ineffective assistance of counsel.” Id. at 790
(quoting Thomas v. Kuhlman, 255 F. Supp. 2d 99, 112 (E.D.N.Y.
2003)); see also Williams v. Washington, 59 F.3d 673, 680-82
(7th Cir. 1995) (determining that failure to investigate and
visit the scene rendered defense counsel’s performance deficient
and violated the defendant’s Sixth Amendment rights); Thomas,
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255 F. Supp. 2d at 109 (“[I]f properly armed with the easily
discoverable facts concerning the layout of the victim’s
apartment building, counsel would likely have chosen to
highlight the implausibility of the prosecution’s theory of the
crime.”).
These standards show that visiting the crime scene is
integral to providing an effective defense. Indeed, in this
case, defense counsel’s reasons for requesting access to
Maunaihi Terrace primarily concerned his ability to effectively
represent Tetu. 16 Tetu’s counsel requested access to the crime
scene so that he could cogently present the case to a jury,
cross-examine witnesses, and understand Tetu’s account of the
events. A review of the transcript at trial indicates a
disparity between the prosecution’s direct examination and the
defense counsel’s cross-examination of the condominium manager.
During direct examination, the prosecutor--who had access to the
premises--asked the manager to describe what he saw while the
surveillance footage played before the jury. As the manager
described the layout of the basement, the prosecutor added to
the manager’s narrative, asking, “And is there a hallway that
16
Although not mentioned in the motion to compel discovery, Tetu’s
counsel at oral argument to this court stated that he wanted access to the
crime scene “on a personal level” because he “tend[s] to be directionally
challenged” and struggles with telling where things are by looking at a map
or diagram. See Oral Argument at 10:25-50, State v. Tetu, SCWC-13-0003062
(argued July 2, 2015),
http://oaoa.hawaii.gov/jud/oa/15/SCOA_070215_13_3062.mp3.
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connects all sides of the basement to the elevators?” The
manager responded, “Sorry, yes. There’s another hallway just
like this right on that side where he just emerged from.”
In contrast, Tetu’s counsel spent the first part of
his cross-examination asking the manager to help him understand
the orientation of the utility closets. At one point, Tetu’s
counsel confused the positioning of the storage closets and
apologized to the manager, “It’s the same closet? . . . Oh,
okay. Sorry. Oh, my mistake. Okay.” Thus, the trial record
reflects that the specific reasons Tetu’s counsel asserted for
requesting access to the condominium were substantiated.
The circuit court’s reliance on HRE Rule 401 to deny
Tetu’s motion to compel discovery was misplaced. This rule
defines what evidence is relevant and consequently admissible.
See HRE Rule 401. It does not contemplate a limit on the
defense’s ability to discover potentially admissible evidence.
See id. As stated by the ABA Standards, defense counsel’s
investigative efforts “should explore appropriate avenues that
reasonably might lead to information relevant to the merits of
the matter.” ABA Standards § 4-4.1(c). HRE Rule 401 is also
inapplicable because several of the reasons Tetu’s counsel
offered for obtaining access to the property did not indicate a
desire to introduce evidence but were related to obtaining an
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understanding of the building’s layout so that counsel could
effectively present the case to the jury. 17
In sum, under article I, section 14 of the Hawaiʻi
Constitution, a defendant is entitled to the assistance of an
attorney whose representation falls within the range of
performance demanded of attorneys in criminal cases. There is a
broad consensus across the United States that competent defense
counsel should access the crime scene unless, after a careful
investigation of the underlying facts of a case, counsel makes a
reasonable determination that access is not necessary to provide
effective assistance of counsel. 18 Thus, a defendant’s ability
to access the crime scene inheres within the right to effective
assistance of counsel guaranteed by article I, section 14 of the
Hawaiʻi Constitution. 19
17
The State’s argument concerning HRE Rule 403, which allows a
court to exclude evidence that will cause “undue delay, waste of time or
needless presentation of cumulative evidence,” is also not germane. Tetu’s
counsel moved to compel discovery, not to admit evidence. Arguing that the
evidence will cause “undue delay, waste of time, or needless presentation of
cumulative evidence” prior to the defense even requesting that the evidence
be admitted is inapposite.
18
The decision not to investigate a crime scene can constitute an
error or omission that reflects counsel’s lack of skill, judgment, or
diligence. See Aplaca, 74 Haw. at 71, 837 P.2d at 1307 (electing not to
investigate without adequate inquiry of the facts is not considered a
tactical decision); see also Antone, 62 Haw. at 348-49, 615 P.2d at 104-05
(stating the two-fold standard to establish ineffective assistance of
counsel).
19
Allowing defense counsel access to the crime scene may impinge on
the privacy rights of property owners. Accordingly, as discussed infra, a
court may place appropriate time, place, and manner restrictions on the
defendant’s access.
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b. Due Process Right
Article I, section 5 of the Hawaiʻi Constitution
provides, “No person shall be deprived of life, liberty or
property without due process of law[.]” 20 Haw. Const.
art. I, § 5. A primary reason that a defendant is guaranteed
effective assistance of counsel is to ensure that the defendant
is not denied due process. State v. Reed, 135 Hawaiʻi 381, 387,
351 P.3d 1147, 1153 (2015) (“The Constitution guarantees a fair
trial through the Due Process Clauses, but it defines the basic
elements of a fair trial largely through the several provisions
of the [s]ixth [a]mendment, including the [c]ounsel [c]lause.”
(alterations in original) (quoting United States v. Gonzalez-
Lopez, 548 U.S. 140, 150 (2006))). Thus, while defense
counsel’s ability to visit the crime scene is a component of a
defendant’s right to effective assistance of counsel for the
reasons stated above, due process provides a separate guarantee
to a fair trial pursuant to which such access may be afforded.
See State v. Kaulia, 128 Hawaiʻi 479, 487, 291 P.3d 377, 385
20
Article 1, section 5 of the Hawaiʻi Constitution provides,
No person shall be deprived of life, liberty or
property without due process of law, nor be denied
the equal protection of the laws, nor be denied the
enjoyment of the person’s civil rights or be
discriminated against in the exercise thereof
because of race, religion, sex or ancestry.
Haw. Const. art. I, § 5.
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(2013) (“The due process guarantee of the . . . Hawaii
constitution [] serves to protect the right of an accused in a
criminal case to a fundamentally fair trial.” (alterations in
original) (quoting State v. Matafeo, 71 Haw. 183, 185, 787 P.2d
671, 672 (1990))).
On several occasions, this court has stated that
“[c]entral to the protections of due process is the right to be
accorded a meaningful opportunity to present a complete
defense.” Id. (quoting Matafeo, 71 Haw. at 185, 787 P.2d at
672). These decisions are consistent with the well-established
principle that “all defendants must be provided with the ‘basic
tool[s] of an adequate defense.’” State v. Scott, 131 Hawaiʻi
333, 352, 319 P.3d 252, 271 (2013) (quoting Britt v. North
Carolina, 404 U.S. 226, 227 (1971)); see also Washington v.
Texas, 388 U.S. 14, 19 (1967) (determining that a “fundamental
element of due process” is the right to “present the defendant’s
version of the facts”).
Discovery is at the very 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.
State v. Valeros, 126 Hawaiʻi 370, 379, 271 P.3d 665, 674 (2012)
(quoting State v. Dowsett, 10 Haw. App. 491, 498, 878 P.2d 739,
743 (1994), overruled on other grounds by State v. Rogan, 91
Hawaiʻi 405, 423 n.10, 984 P.2d 1231, 1249 n.10 (1999)); see also
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Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (“[A] criminal trial is
fundamentally unfair if the State proceeds against an indigent
defendant without making certain that [the defendant] has access
to the raw materials integral to the building of an effective
defense.”).
Due process contemplates mutual obligations of the
government and the defense as it relates to the discovery
process. See State v. Davis, 63 Haw. 191, 195-96, 624 P.2d 376,
379-80 (1981) (stating that discovery under HRPP Rule 12.1 is a
“two-way street”). “Although the Due Process Clause has little
to say regarding the amount of discovery which the parties must
be afforded, it does speak to the balance of forces between the
accused and his accuser.” Wardius v. Oregon, 412 U.S. 470, 474
(1973) (citation omitted).
Other jurisdictions have concluded that a defendant
has a right under the due process clause to investigate a crime
scene. In Henshaw v. Commonwealth, 451 S.E.2d 415, 416 (Va. Ct.
App. 1994), the appellant was denied access to the site of the
crime scene located at a private residence, and he was
subsequently convicted of voluntary manslaughter. The court
concluded that the “due process rights of . . . the Virginia
Constitution give a criminal defendant a right to view,
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photograph, and take measurements of the crime scene.” 21 Id. at
419. A similar conclusion was reached in State v. Gonsalves,
661 So. 2d 1281 (Fla. Dist. Ct. App. 1995), in which the court
determined that a defendant charged with attempted burglary had
a due process right to inspect the crime scene. Id. at 1282.
Likewise, in State v. Brown, 293 S.E.2d 569 (N.C. 1982), the
Supreme Court of North Carolina held that it was “a denial of
fundamental fairness and due process for [a] defendant to be
denied, under police prosecutorial supervision, a limited
inspection of the premises of the crime scene” in a capital case
in which the defendant’s counsel was denied access to a murder
scene. Id. at 577-78.
Review of the case law thus demonstrates that due
process includes the right of the defendant to access the crime
scene to obtain the raw materials integral to building an
effective defense. Here, even though surveillance footage was
available, it did not show the inside of the closets or how Tetu
entered the building. Tetu’s counsel requested access to the
property so that he could photograph areas not depicted in the
discovery already produced. A defendant’s right to due process
21
The Henshaw court held that the due process rights of article I,
section 8 of the Virginia Constitution give a criminal defendant a right to
view, photograph, and take measurements of the crime scene, provided that the
defendant makes a showing that a substantial basis exists for claiming that
the proposed inspection and observation will enable the defendant to obtain
evidence relevant and material to his defense or to be able to meaningfully
defend himself. Henshaw, 451 S.E.2d at 419.
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is infringed when defense counsel is forced to rely on materials
provided by the government based on what the police or the
prosecution deems relevant at a crime scene--that is, what is
photographed, what is included in diagrams, or what is depicted
in a video and then disclosed in discovery. In an adversarial
system, the right to a fair trial may be compromised when the
defendant is required to build a defense based upon the State’s
investigation.
The performance standards and guidelines previously
discussed emphasize that counsel should investigate or have
adequately considered inspection of the crime scene. A visit to
the crime scene may help counsel document and photograph
relevant characteristics of the scene, explore avenues of
possible defenses, determine if proceeding to trial would be
appropriate, enable a cohesive presentation to the factfinder,
and understand the defendant’s account of the events. The
prosecution will generally have access to the crime scene via
police investigation or independent prosecutorial inquiry. A
defendant is therefore likely to be at a disadvantage to a
prosecution that has more information about, and more
familiarity with, the crime scene. See Dowsett, 10 Haw. App. at
498, 878 P.2d at 743 (“The ends of justice will best be served
by a system of liberal discovery which gives both parties the
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maximum possible amount of information with which to prepare
their cases . . . .” (quoting Wardius, 412 U.S. at 473)).
Here, Tetu’s due process right under the Hawaiʻi
Constitution to access the materials vital to building an
effective defense and to have an opportunity similar to the
State to obtain information was impaired: first, by the denial
of defense counsel’s initial request for access to the crime
scene, and second, by the prosecutor’s visit to the scene
despite opposing Tetu’s motion on the basis that the defense
would not gain anything from an investigation of the scene. As
this court has previously stated, “the growth of . . . discovery
devices is a salutary development which, by increasing the
evidence available to both parties, enhances the fairness of the
adversary system.” State v. Pond, 118 Hawaiʻi 452, 464, 193 P.3d
368, 380 (2008) (quoting Wardius, 412 U.S. at 474). In this
case, however, the circuit court’s decision to not utilize one
such discovery device to allow Tetu access to the crime scene
diminished the fairness of the adversary system. See id.
In short, under article I, section 5 of the Hawaiʻi
Constitution, a defendant has a due process right to a fair
trial. Due process requires that a defendant be given a
meaningful opportunity to present a complete defense and that
discovery procedures provide the maximum possible amount of
information and a level-playing field in the adversarial
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process. Thus, the due process clause of the Hawaiʻi
Constitution provides a defendant with the right to access the
crime scene in order to secure the promises that a fair trial
affords.
3. Privacy Concerns
In Hawaiʻi, the right to privacy is also a
constitutionally protected right. 22 Recognition of a defendant’s
constitutional right to access the crime scene may intrude upon
the privacy interests of those directly affected by a crime,
property owners, or other occupants of the premises, and an
inspection of the scene may be stressful to an alleged victim.
The drafters of article I, section 6 of the Hawaiʻi
Constitution envisioned that the interests of the criminal
justice system would, at times, be significant enough to justify
intrusion on one’s right to privacy. See Stand. Comm. Rep. No.
69 in 1 Proceedings of the Constitutional Convention of Hawaiʻi
of 1978, at 675 (1980) (“[A]t times the interests of national
security, law enforcement, the interest of the State to protect
the lives of citizens or other similar interests will be strong
enough to override the right to privacy.”). The New Jersey
Supreme Court similarly observed in State in Interest of A.B.
22
Article I, section 6 of the Hawaiʻi Constitution provides, “The
right of the people to privacy is recognized and shall not be infringed
without the showing of a compelling state interest.” Haw. Const. art. I, §
6.
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that despite the fact that “[p]articipation in the criminal
justice process will undoubtedly be a source of inconvenience
and anxiety, and will result in some incursion into privacy
rights of witnesses[,]” these “adverse consequences are the
inevitable price that must be paid to ensure the accused
receives a fair trial.” 99 A.3d 782, 793 (N.J. 2014). Given
these competing interests, a defendant’s constitutional right to
access and investigate a crime scene is not unlimited and does
not provide unfettered access to private property. Rather, the
anxiety and inconvenience that governmental intrusion may cause
can be largely reduced through the court’s application of time,
place, and manner restrictions without jeopardizing the
defendant’s right to effective assistance of counsel and right
to a fair trial.
Other jurisdictions that have recognized a defendant’s
right to investigate the crime scene have employed such
restrictions to minimize governmental intrusion on a property
owner’s privacy rights. The Court of Appeals of Minnesota took
this approach in State v. Lee, 461 N.W.2d 245 (Minn. Ct. App.
1990), holding that the trial court abused its discretion in
denying the defendant’s motion to compel access to a private
residence, which was the scene of an alleged murder. Id. at
247. The prosecution opposed the defense’s motion in Lee
because it was no longer in “possession or control” of the crime
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scene and had already provided the defense with photographs,
diagrams, and videotapes of the residence. Id. at 246. The
appellate court held that “[a] brief inspection of the residence
by defense investigators, regulated as to time, place and
manner, could be less intrusive upon the victims’ family than a
defense effort to obtain equivalent information by compulsory
process.” Id. at 247 (citation omitted). 23 In Commonwealth v.
Matis, 915 N.E.2d 212, 215 (Mass. 2006), a case involving the
sexual assault of a minor, the court remanded the case to the
trial court and specified that the trial court needed to
consider the “privacy interests and logistical concerns of the
homeowner” and could craft the terms of the order allowing
access to the crime scene through time, place, and manner
restrictions. The appellate court’s instructions on remand
provided examples of restrictions that the trial court could
apply to protect privacy rights. Id. The Matis court
instructed as follows:
The order [allowing access to the crime scene] should be
specific as to scope, and may include, among other things,
conditions as to who may have access on behalf of the
defense, when that access may occur and for how long, and
whether additional persons should be permitted or required
to attend to ensure the peaceable nature of the inspection,
the integrity of the evidence, and the privacy of matters
beyond the scope of the order.
23
Restriction to a single visit will generally be sufficient to
address the defense’s request to investigate the premises. See State in
Interest of A.B., 99 A.3d at 794 (requiring the “giving [of] articulable
reasons why the initial inspection was not adequate for investigative
purposes”).
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Id. 24
In this case, the circuit court could have placed
restrictions on defense counsel’s access to investigate and
photograph the basement area in and around the utility closets. 25
Such appropriate time, place, and manner restrictions would have
minimized any infringement on the condominium owners’ privacy
rights without impairing Tetu’s constitutional rights to
effective assistance of counsel and a fair trial. 26
4. Relevancy and Materiality Requirement
The concurrence acknowledges that a defendant in
Hawaiʻi has a constitutional due process right to access the
crime scene, but it would make the right conditional. In order
to exercise the right under the concurrence’s proposed test, the
defendant would be required to “make a threshold showing” that
24
The Matis court held that the defendant had a constitutional
right to investigate the crime scene under the Sixth Amendment to the United
States Constitution but required a showing that the crime scene was
“evidentiary and relevant” to authorize the use of the court’s subpoena
power. Matis, 915 N.E.2d at 213-14.
25
Before moving to compel access to the crime scene, defense
counsel may seek access without the aid of the court, i.e., requesting
permission through the prosecution or directly from the property owner.
However, if access is denied, HRS § 603-21.9 (1993) provides the circuit
courts with the authority “[t]o make and award . . . orders . . . for the
promotion of justice in matters pending before them,” and thus a court may
order a complainant or third party to allow access to the crime scene with
appropriate restrictions.
26
At the hearing on Tetu’s motion to compel access to the
condominium, no one from Maunaihi Terrace was present to represent the
condominium’s privacy interests. It is assumed that in establishing time,
place, and manner restrictions, the property owner or persons with privacy
interests will be notified of the request for access. The court may then
consider such privacy interests in establishing appropriate restrictions.
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“inspection of the [crime] scene will lead to relevant evidence
on a material issue.” Concurrence at 2, 8.
In jurisdictions that have required a defendant to
satisfy a relevancy and materiality test (or some alternative
standard) to justify access to the crime scene, a primary
concern has been the right to privacy of complainants or third
parties. 27 This concern can be readily addressed by application
of time, place, and manner restrictions imposed by a court to
protect the privacy interests of property owners or occupants
without the imposition of an evidentiary threshold test. 28 There
27
See, e.g., Bullen v. Superior Court of Sacramento Cty., 251 Cal.
Rptr. 32, 35 (Cal. Ct. App. 1988) (“Resolution of this issue implicates
competing fundamental interests involving petitioner’s right to privacy in
her own home and defendant’s right to a fair trial and a defense informed by
all relevant and reasonably accessible information.”); State in Interest of
A.B., 99 A.3d 782, 789 (N.J. 2014) (“The issue presents a balancing of the
right of the accused to a fair trial and the right of an alleged victim and
her family to privacy in their home.”); People v. Nicholas, 599 N.Y.S.2d 779,
782 (N.Y. App. Div. 1993) (“Unless defense counsel can make a prima facie
showing how his proposed inspection and observation would be relevant and
material to his defense, the defendant’s right to prepare his defense cannot
outweigh the victim’s constitutional right to privacy.”); Henshaw v.
Commonwealth, 451 S.E.2d 415, 420 (Va. Ct. App. 1994) (“If an accused
establishes that inspecting, photographing, or measuring the crime scene is
relevant and material, he is entitled to access, subject to such reasonable
limitations and restrictions as the trial judge may impose, unless due to
special circumstances the private citizen’s constitutional right to privacy
outweighs the accused’s right to view or inspect the premises.”); State v.
Muscari, 807 A.2d 407, 418 (Vt. 2002) (holding that an occupant’s right to
privacy must be balanced with a defendant’s need to access the crime scene
“by requiring a defendant to make some showing that the requested intrusion
is relevant and material to the defense”).
28
The need for a defense counsel to understand the crime scene’s
layout and to explore all possible defenses does not vary based on whether
the crime occurred on public or private property. Consequently, under a
relevancy and materiality test, the need to persuade a court to allow crime
scene access unfairly burdens defendants accused of a crime on private rather
than on public property. All defendants under the Hawaiʻi and United States
Constitutions are presumed to be innocent, and the ability to prepare a
(continued. . .)
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may be rare cases where it is demonstrated that such
restrictions are inadequate to protect an individual’s privacy
rights and that an intrusion upon these privacy rights outweighs
the defendant’s rights to due process and effective assistance
of counsel. However, a court’s broad authority to circumscribe
the scope of access--including, for example, prescribing the
physical area of the inspection, setting the time frame and
other conditions of the visit, and specifying the persons to be
present--will provide the requisite protection of privacy rights
in virtually all cases.
Additionally, requiring a defendant to demonstrate
that access to the crime scene “will lead” to relevant evidence
on a material issue undermines the defendant’s constitutional
rights to effective assistance of counsel and to a fair trial.
The time necessary for defense counsel to obtain discovery in
order to establish that accessing the crime scene would lead to
relevant evidence on a material issue conflicts with the
previously cited professional standards that defense counsel
should access the scene without delay to inspect it, take
(. . .continued)
defense should not depend on the location of the offense charged. See In re
Winship, 397 U.S. 358, 363 (1970) (The reasonable-doubt standard “provides
concrete substance for the presumption of innocence--that bedrock ‘axiomatic
and elementary’ principle whose ‘enforcement lies at the foundation of the
administration of our criminal law’” (quoting Coffin v. United States, 156
U.S. 432, 453 (1895))).
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measurements, and record relevant conditions. 29 The defendant’s
inability to make a threshold showing of relevancy and
materiality to justify inspecting the crime scene at an early
point in the proceedings 30 may be the result of a delay in the
State’s required disclosure of discovery under HRPP Rule 16
because of uncompleted investigative reports, pending test
results, or even administrative backlog.
Further, the reasons put forward by the defense to
access the crime scene are likely to be challenged by the State
as to whether they demonstrate that access “will lead to
relevant evidence on a material issue.” Concurrence at 2
(emphasis added). That is, counsel for the State, who will
generally have ready access to the crime scene, may contend that
opposing counsel should not be granted access because of
29
Requiring the defense to show that investigation of the crime
scene will lead to relevant and material evidence may, in certain instances,
infringe on the attorney-client privilege. The attorney-client privilege
protects all “‘confidential communication made for the purpose of
facilitating the rendition of professional legal services’ between
appropriate parties.” Save Sunset Beach Coalition v. City & Cty. of
Honolulu, 102 Hawaiʻi 465, 484-85, 78 P.3d 1, 20-21 (2003) (quoting HRE Rule
503(b)). Satisfying a relevancy and materiality test may inferentially
reveal the contents of a privileged communication from the defendant.
30
A relevancy and materiality requirement may also create an
anomalous result based on the timing of a defense counsel’s request to compel
discovery. If defense counsel moves to compel access when the police or the
State is in “possession or control” of a crime scene, a defendant would
appear to have an automatic right under HRPP Rule 16 to investigate the crime
scene. See State v. Townsend, 7 Haw. App. 560, 563, 784 P.2d 881, 883
(1989). Requiring a defendant to satisfy a higher burden to exercise his or
her constitutional right to access the crime scene solely because of the
timing of the request may “impermissibly relegate[] the defendant’s
constitutional rights to that of rule status.” State v. Pond, 118 Hawaiʻi
452, 481, 193 P.3d 368, 397 (2008).
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relevance, passage of time, or cumulativeness of evidence--which
were precisely the grounds of the State’s objections in this
case. If a trial court is required to determine whether access
to a crime scene would lead to relevant evidence not previously
disclosed on a material issue, the court would need to be
cognizant of the contents of all discovery previously provided
by the State, any other materials obtained by the defense’s
investigation, and the possible defenses to be asserted at
trial. 31
Although the inherent difficulty of such a judicial
calculation is plainly evident, the concurrence suggests that
its proposed threshold burden is necessary in part to counter
requests for access that have no “legitimate purpose.”
Concurrence at 5. To the extent that the concurrence portends
that counsel will submit frivolous or illegitimate requests for
access to the scene with the intent to intimidate, harass, or
abuse private citizens, such requests for access would require
defense counsel to knowingly violate multiple provisions of the
Hawaiʻi Rules of Professional Conduct (HRPC). See HRPC Rule
31
Requiring counsel to definitively show that access “will” lead to
relevant evidence on a material issue would also make no accommodation for
counsel to inspect the crime scene for general investigatory purposes or
because counsel believes the inspection itself may provide a basis for a
defense. In this likely scenario, the very information needed to make a
showing that access to the crime scene would yield relevant and material
evidence would remain undiscovered because it would only be accessible by
inspecting the crime scene in the first place.
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3.4(f) (2014) (prohibiting a lawyer from “mak[ing] a frivolous
discovery request”); HRPC Rule 3.1 (2014) (prohibiting a lawyer
from “bring[ing] or defend[ing] a proceeding, or assert[ing] or
controvert[ing] an issue therein, unless there is a basis for
doing so that is not frivolous”). Further, the trial court has
“inherent equity, supervisory, and administrative powers” to
“curb abuses and promote a fair process.” Richardson v. Sport
Shinko (Waikiki Corp.), 76 Hawaiʻi 494, 507, 880 P.2d 169, 182
(1994); Kaina v. Gellman, 119 Hawaiʻi 324, 330, 197 P.3d 776, 782
(App. 2008) (noting that HRS §§ 603-21.9(1) and (6) 32 are the
“legislative restatement of the inherent powers doctrine”). 33
32
HRS § 603-21.9 reads in relevant part:
The several circuit courts shall have power:
(1) To make and issue all orders and writs necessary or
appropriate in aid of their original or appellate
jurisdiction;
. . . .
(6) To make and award such judgments, decrees, orders, and
mandates, issue such executions and other processes, and do
such other acts and take such other steps as may be
necessary to carry into full effect the powers which are or
shall be given to them by law or for the promotion of
justice in matters pending before them.
HRS § 603-21.9(1), (6) (1993).
33
See also State v. Mattson, 122 Hawaiʻi 312, 342 n.6, 226 P.3d 482,
512 n.6 (2010) (noting that this court could invoke its inherent supervisory
authority to prohibit a broad category of impermissible prosecutorial
comments even when not all subsets of such comments were raised on appeal);
State v. Jess, 117 Hawaiʻi 381, 411, 184 P.3d 133, 163 (2008) (circuit court’s
inherent authority includes the power to reform sentencing statute to comport
with Hawaiʻi Constitution and re-empanel jury to make factual findings for
sentencing); State v. Pattioay, 78 Hawaiʻi 445, 468 n.28, 896 P.2d 911, 924
(continued. . .)
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Therefore, trial courts are indeed empowered with the tools to
curb the concurrence’s hypothetical requests of counsel for
access that have no legitimate purpose, even assuming the
unlikely fact that such requests would be submitted in direct
violation of the Hawaiʻi Rules of Professional Conduct. 34
Concurrence at 5.
The concurrence also maintains that, under the
proposed relevancy and materiality test, “in the vast majority
of cases, a defendant should easily be able to” exercise his or
her constitutional right to access the crime scene. Concurrence
at 5. However, as described above, there are numerous reasons
why this prediction is dubious. In fact, it is likely that
defense counsel would frequently be denied the opportunity to
investigate the scene of the crime and thus be prevented from
fulfilling professional standards. This case is a prime
example. Defense counsel provided the following reasons for
seeking access to the condominium premises: (1) to make best use
of cross-examination and impeachment of witnesses at trial; (2)
(. . .continued)
n.28 (1995) (circuit court’s inherent authority includes power to exclude
evidence obtained in violation of federal statute relating to military and
civilian law enforcement because such action is “reasonably necessary to
vindicate the court’s authority”).
34
The regulations imposed by the HRPC, the court’s inherent
authority to deny illegitimate requests for access, and the limitations
imposed by use of time, place, and manner restrictions evince that, contrary
to the concurrence’s characterization, a defendant’s access to the crime
scene is not “absolute.” Concurrence at 8.
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to understand the account of his client; (3) to take photographs
of areas not shown in the discovery that “may be significant to
the defense”; and (4) to coherently present the case to a jury.
The circuit court determined that Tetu’s counsel had presented
“no real plausible justification” for access to the crime scene
and that the request for access was speculative “with a hope to
turn up something.” Similarly, the ICA concluded that Tetu’s
reasons did not satisfy its requirement that counsel “make a
prima facie showing of how the proposed inspection would be
relevant and material to [his] defense.” These court rulings
indicate that Tetu would not have satisfied the concurrence’s
threshold test that “inspection of the crime scene would lead to
relevant evidence on a material issue,” 35 despite the fact that
the reasons provided by defense counsel coincide with numerous
performance standards established by the American Bar
Association, state jurisdictions, and other legal professional
standards organizations. 36
35
In concluding otherwise, the concurrence states that inspection
of the crime scene would have revealed that the fire-exit door, which was
“exit only,” had no signs of forced entry and would have corroborated Tetu’s
account that he could have only entered the premises with his former wife’s
aid. Concurrence at 6-7. However, this argument was not made before the
circuit court as the ICA noted in its memorandum opinion. The other reasons
relied upon by the concurrence are generally applicable in all criminal
cases.
36
See, e.g., Va. Indigent Def. Comm’n, Commonwealth of Virginia
Standards of Practice for Indigent Defense § 7.1 (b)(5) (2015) (trial
preparation should include consideration of “[o]btaining photographs and
preparing charts, maps, diagrams, or other visual aids of all scenes,
persons, objects, or information which may assist the fact finder in
(continued. . .)
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While the reasons that Tetu’s counsel provided are
inherent to providing effective assistance of counsel and apply
in nearly all criminal cases, they did not demonstrate that
access to the scene would satisfy the concurrence’s test that it
“will lead to relevant evidence on a material issue.” This case
thus manifests the fundamental point that the duties required of
defense counsel by virtue of the obligation to render effective
assistance are not limited to seeking relevant evidence on a
material issue, and, in fact, encompass a range of litigation
efforts that are fundamental to an effective defense--yet do not
solely involve pursuing such evidence. 37 Rather, as established
by the professional standards for defense counsel, a meaningful
(. . .continued)
understanding the defense . . . ”); id. at § 8.2(g) (“Counsel should attempt
to view and photograph the scene of the alleged offense.”); Nat’l Legal Aid &
Def. Ass’n, NLADA’s Performance Guidelines for Criminal Defense
Representations § 4.1(b)(6), at 10 (1995) (“Counsel should consider seeking
access to the scene under circumstances as similar as possible to those
existing at the time of the alleged incident.”); Am. Bar Ass’n, ABA Standards
for Criminal Justice: Prosecution Function and Defense Function § 4-4.1(b)
Commentary, at 183 (3d ed. 1993) (“Without adequate investigation[,] the
lawyer is not in a position to make the best use of such mechanisms as cross-
examination or impeachment of adverse witnesses at trial,” and where there
are eyewitnesses, “[t]he lawyer needs to know conditions at the scene that
may have affected their opportunity as well as their capacity for
observation.”).
37
For example, the record in this case demonstrates that defense
counsel’s concerns regarding cross-examination of witnesses at trial was
well-founded. A review of the trial transcript indicates that defense
counsel, unlike the prosecution, struggled to cross-examine the condominium
manager regarding the layout of the basement. As any seasoned litigator
knows, there is no substitute to viewing the crime scene in person. Had
defense counsel been permitted to inspect and familiarize himself with the
condominium basement, counsel likely would have been able to make “be[tter]
use” of cross-examination. Am. Bar Ass’n, supra note 36, at 183.
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opportunity to present a complete defense secures allowance for
counsel to timely inspect and investigate the crime scene in
order to provide effective assistance. See State v. Kaulia, 128
Hawaiʻi 479, 487, 291 P.3d 377, 385 (2013) (“Central to the
protections of due process is the right to be accorded a
meaningful opportunity to present a complete defense.” (quoting
State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990)).
Requiring counsel to satisfy a court that granting access to the
crime scene will lead to relevant evidence on a material issue
forces a defendant to justify the exercise of the rights given
by our constitution to present an effective defense and to
receive a fair trial.
5. Harmless Error
The circuit court erred in not allowing Tetu’s counsel
to inspect and photograph the crime scene, a private condominium
building, subject to appropriate restrictions that would have
properly considered the condominium owners’ privacy rights.
However, a violation of a constitutional right is subject to the
harmless-beyond-a-reasonable-doubt standard. See State v.
Peseti, 101 Hawaiʻi 172, 178, 65 P.3d 119, 125 (2003) (noting
that a violation of the constitutional right to confront
witnesses is subject to the harmless beyond a reasonable doubt
standard). This standard requires a court to “examine the
record and determine whether there is a reasonable possibility
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that the error complained of might have contributed to the
conviction.” Id. (quoting State v. Balisbisana, 83 Hawaiʻi 109,
113-14, 924 P.2d 1215, 1219-20 (1996)); see also State v.
Aplaca, 96 Hawaiʻi 17, 25, 25 P.3d 792, 800 (2001) (“This court
applies the harmless error doctrine to errors that . . .
implicate an accused’s constitutional rights.”). In assessing
whether an error is harmless, “[a] crucial if not determinative
consideration . . . is the strength of the prosecution’s case on
the defendant’s guilt.” State v. Fukusaku, 85 Hawaiʻi 462, 482-
83, 946 P.2d 32, 52-53 (1997) (quoting State v. Pokini, 55 Haw.
640, 645, 526 P.2d 94, 101 (1974)).
Here, the evidence presented against Tetu at trial was
compelling. The jury observed surveillance footage that showed
Tetu breaking into two storage closets with a tool and using his
jacket to wipe the door knobs. Tetu testified that he used a
piece of wire to open the locked closets. The jury also
observed in the footage Tetu leaving the closets carrying a
garbage bag of items with a flashlight in his mouth. The
condominium manager testified that he had checked the utility
closets a few days before the incident and that on the day after
the incident, an electric grinder and several emergency lights
and batteries were missing. The manager further testified that
the closets were always locked and only individuals with keys
had access to the closets. Finally, Tetu’s testimony that the
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bag contained his former wife’s clothing, instead of stolen
property, was wholly contradicted by the testimony of his former
wife.
In light of the evidence adduced at trial, the trial
court’s error in denying access to the crime scene in this case
was harmless beyond a reasonable doubt.
B. Sufficiency of the Evidence
This court will “not overturn a conviction by a jury
if ‘viewing the evidence in the light most favorable to the
[prosecution], there is substantial evidence to support the
conclusion of the trier of fact.’” State v. Matavale, 115
Hawaiʻi 149, 158, 166 P.3d 322, 331 (2007) (alteration in
original) (quoting State v. Moniz, 92 Hawaiʻi 472, 476, 992 P.2d
741, 744 (App. 1999)). Substantial evidence is “credible
evidence which is of sufficient quality and probative value to
enable [a person] of reasonable caution to support a
conclusion.” Id. at 158, 166 P.3d at 331 (alteration in
original) (quoting State v. Batson, 73 Haw. 236, 248-49, 831
P.2d 924, 931 (1992)). Further, when considering the legal
sufficiency of evidence to support a conviction, such “evidence
adduced in the trial court must be considered in the strongest
light for the prosecution.” Id. at 157, 166 P.3d at 330. It is
not the role of the appellate court to weigh credibility or
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resolve conflicting evidence. State v. Wallace, 80 Hawaiʻi 382,
418, 910 P.2d 695, 731 (1996).
A person commits burglary in the second degree if the
person “intentionally enters or remains unlawfully in a building
with intent to commit therein a crime against a person or
against property rights.” HRS § 708-811(1). Because Tetu
admitted that he was the person depicted in the surveillance
footage, the question before the jury concerned Tetu’s intent
when entering or while remaining at Maunaihi Terrace. Although
Tetu argues that he lacked the intent to commit burglary, in
viewing the evidence in the most favorable light to the State,
the evidence demonstrating that the circuit court’s error was
harmless beyond a reasonable doubt also establishes substantial
evidence to support Tetu’s conviction.
IV. CONCLUSION
A defendant’s right to due process under article I,
section 5 and the right to effective assistance of counsel under
article I, section 14 of the Hawaiʻi Constitution independently
provide a defendant with the right to access a crime scene.
When the crime scene is located on private property, the court
should impose time, place, and manner restrictions to protect
the privacy interests of those who may be affected by the
intrusion. The court’s authority to employ such restrictions to
address the specific circumstances in each case reflects a
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careful balance between personal privacy, due process, and the
effective assistance of counsel and assures protection of these
constitutional rights.
In this case, although Tetu was wrongly denied access
to the crime scene, the error was harmless beyond a reasonable
doubt. Therefore, the judgment on appeal of the ICA is affirmed
for the reasons stated herein.
Stuart N. Fujioka /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Donn Fudo /s/ Michael D. Wilson
for respondent
49
State v. Tetu.
Court: Hawaii Supreme Court
Date filed: 2016-12-05
Citations: 139 Haw. 207, 386 P.3d 844, 2016 Haw. LEXIS 303
Copy CitationsCombined Opinion