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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
04-JUN-2020
07:53 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
ALEXANDER MIRANDA,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 16-1-0315)
JUNE 4, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
A defendant in a criminal prosecution has a
constitutionally protected right to cross-examine a witness for
potential bias or motive. In this case, the defendant argues
that this right was violated when the circuit court prevented
defense counsel from cross-examining the complainant about
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disciplinary action the complainant might have faced as a United
States Marine for instigating a fight in violation of its code
of conduct provisions. We conclude that because the defense was
precluded from questioning the complainant about this potential
source of bias, the jury did not have sufficient information
from which to make an informed appraisal of the complainant’s
motives or bias. We also provide guidance concerning the
admissibility of other evidence as to the contents of a
destroyed video recording under Hawaii Rules of Evidence Rules
1004 and 403.
I. BACKGROUND AND PROCEDURAL HISTORY
On March 27, 2015, Alexander Miranda was involved in
an altercation in which complainant David Metts’ jaw and nose
were broken. Miranda was subsequently charged by felony
information, on March 2, 2016, in the Circuit Court of the First
Circuit (circuit court) with committing the offense of assault
in the Second Degree, in violation of Hawai‘i Revised Statutes
(HRS) § 707-711(1)(a) or (b).1 Miranda pleaded not guilty to the
charge.
1
HRS § 707-711(1) (2014) provides in relevant part as follows:
(1) A person commits the offense of assault in the second
degree if:
(a) The person intentionally or knowingly causes
substantial bodily injury to another;
(continued . . .)
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A. Pre-Trial Proceedings
Prior to trial, Miranda filed a motion to dismiss the
charge, arguing that the State’s delay in bringing the charge
violated his due process right to a fair trial. In a
declaration submitted with the motion, defense counsel averred
the following facts. The altercation occurred on the sidewalk
in front of an ABC store in Waikīkī around midnight on March 27,
2015. Shortly after, in the early morning of March 28, Miranda
and his friend Steven Rodriguez were arrested for their
involvement in the incident. After their arrest, Officer Arthur
Gazelle of the Honolulu Police Department (HPD) reviewed
security camera footage from the ABC store, which recorded the
altercation. Officer Gazelle took a photograph of the video
screen when it showed Rodriguez and Metts, but not Miranda. HPD
Detective (Det.) Michael Burger was thereafter assigned to
investigate the incident. According to Det. Burger’s closing
report, he contacted Newell Hirata, an ABC employee, sometime
during his investigation and Hirata informed him that the
surveillance video was no longer available.2 Miranda maintained
(. . . continued)
(b) The person recklessly causes serious or substantial
bodily injury to another[.]
2
At the hearing on the motion, Miranda’s counsel argued that he
had contacted Hirata, who would testify that he never received a request for
the video. However, counsel declined the circuit court’s offer to continue
the hearing in order to subpoena Hirata.
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that the loss of the video was caused by the State’s delay in
bringing the charge, and because the video would have shown that
Metts was the first aggressor and Miranda acted in self-defense,
the loss of the video violated his right to a fair trial.
At the hearing on the motion to dismiss,3 Officer
Gazelle testified that the relevant portion of the video lasted
about four minutes and showed an argument between Metts, his
companion Casey Smith, Miranda, Rodriguez, and multiple other
individuals. According to Officer Gazelle, Metts and Smith did
not strike Miranda or Rodriguez, and it did not appear that they
were instigating the fight. Miranda threw the first punch,
striking Metts in the face, and after moving 10 to 15 feet away
from the group, he suddenly ran back to punch Metts again.
Officer Gazelle also stated that he took a photograph of the
video and that it showed Metts and Rodriguez. The court denied
the motion, concluding that Miranda had not proven that he
suffered actual prejudice from the video’s destruction because
the testimony indicated that the video was not exculpatory and
would not have supported his claim of self-defense.
3
The Honorable Dexter D. Del Rosario presided over the hearing.
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B. Trial and Post-Trial Proceedings
A jury trial commenced with motions in limine on April
10, 2017.4 The State sought permission to present Officer
Gazelle’s testimony regarding the contents of the video.
Miranda filed a written opposition and a separate motion in
limine seeking an order precluding Officer Gazelle’s testimony
as to the video’s contents. The court ruled that Officer
Gazelle could testify that he viewed the video, but he would be
precluded from describing its contents.
Defense counsel then informed the court that the
defense would seek to admit the photograph that Officer Gazelle
had taken of the security video screen into evidence. Counsel
asked the court to make a ruling as to the admissibility of the
photograph, which according to the officer’s report showed the
moment before Rodriguez punched Metts’ face. Miranda was not in
the picture, counsel explained, and it was consistent with
Miranda’s defense that he had walked away after throwing one
punch in self-defense to stop the fight. The court stated that
it was unable to determine the relevance of the photograph
without knowing what the testimony of the witnesses would be.
Defense counsel proposed to give an offer of proof, but the
court stated that the issue could be decided at the bench or
4
The Honorable Sherri L. Iha presided over the trial proceedings.
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during recess after the relevant witnesses had testified. The
State maintained that allowing the photograph into evidence
would open the door to Officer Gazelle’s testimony as to the
video’s contents. The court noted that it was “one picture in
an entire video” and that its introduction might open the door
to testimony regarding the contents of the video recording.
The State called Samuel Wight as its first witness.
Wight testified that on the night of the incident, he was
walking in Waikīkī when he heard shouting and cursing. He
turned around and saw three people confronting two other people;
the trio was yelling at the other two individuals, who were not
yelling back. According to Wight, the taller male of the three
individuals, who he later identified as Miranda, was standing
about a meter away from Metts, who had his hands up with his
palms facing forward. Miranda took a step toward Metts and
punched him with an uppercut. Wight said that he heard a loud
cracking sound and saw Metts start spitting blood. Wight ran
over to the group and Miranda was cocking his fist back as if he
was going for another hit, but he did not punch Metts again.
Wight acknowledged that he did not include in his written
statement to police that he witnessed a “fist cocked back” or
heard a loud cracking sound. Wight also stated that he did not
see anyone else punch Metts and did not see Metts push or punch
anyone in the other group or get into a fighting stance.
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Metts, who was enlisted in the United States Marines
at the time of the incident, testified that on the evening of
March 27, 2015, he was at a bar in the Waikīkī area just before
midnight with Smith, also a marine. He stated that he had no
more than three drinks at the bar and was not drunk. Metts said
that he and Smith encountered Miranda and two other men on the
sidewalk in Waikīkī. As they passed the group, he turned his
body to let them by and was shoulder-bumped. When he turned
around to see what had happened, the three males were looking
back at them. One of the three males stood “forehead to
forehead” with Smith, whose shoulder was in a sling. Metts said
that he shifted his focus to Smith when he saw the sling get
ripped off Smith’s shoulder and that he was then struck across
the face. He immediately felt blood fill his mouth and his
mouth felt different. He believed he was struck again, but he
was no longer positive and only remembered being hit once.
Metts testified that he never touched Miranda or any of his
friends.
On cross-examination, Metts acknowledged that he said
he had shoved someone during an interview with a detective, but
that now he did not remember shoving anyone or saying that he
did. He also acknowledged telling the detective in the
interview that he had been punched twice. Metts stated that
during a field lineup, he singled out Miranda as the person who
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punched him and stated that both Miranda and the person next to
him in the lineup were part of the group. Audio from the
recorded interview was played for the jury. In the recording,
Metts stated that he was hit twice by the same person while
trying to keep one of the males away from his friend, and that
during the identification procedure he pointed out two of the
males in the lineup but could not say which one hit him.5
Defense counsel then asked Metts about the “Marine
Corps . . . code of conduct,” (code of conduct) but the State
objected to the question as irrelevant. The following exchange
took place:
[DEFENSE COUNSEL]: What’s the policy--what’s the code of
conduct on alcohol?
[METTS]: I don’t know it verbatim.
[DEFENSE COUNSEL]: Just tell me what your recollection is of it.
[METTS]: Don’t get overly drunk and make a fool of
yourself.
[DEFENSE COUNSEL]: Okay. What are the consequences if you
violate that code of conduct?
[PROSECUTOR]: Objection. Relevance.
THE COURT: Sustained.
Defense counsel asked for a bench conference and argued that the
questions went to bias and motive. The court replied there was
no evidence that Metts was overly drunk or acting out and it
5
Metts acknowledged the inconsistency in his testimony. On re-
direct examination, Metts testified he was on painkillers at the time he gave
his interview, his voice in the audio was “slower and slurrier,” his
“thinking” at the time was slower, and it was harder to focus.
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would not “allow [defense counsel] to place that on trial here.”
The State argued that, because Metts was no longer in the
Marines, “bias, interest, and motive is gone.” Defense counsel
responded, “This is at the time of the offense--” to which the
court replied, while counsel was in mid-sentence, “Right. I
understand,” and ended the bench conference.
Defense counsel then attempted to ask Metts about the
code of conduct with regard to fighting, and the State’s
objection was sustained before Metts could respond:
[DEFENSE COUNSEL]: What is the Marine code of conduct in
terms of fighting?
[PROSECUTOR]: Objection, Your Honor.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Okay. Okay.
Dr. Jerry Beckham, who attended to Metts’ injuries
after the incident, testified that Metts stated he had been hit
twice in the face and complained of jaw and nose pain. Metts
had a jaw fracture in two places and a nose fracture, and his
injuries were consistent with blunt force trauma to the face.
The doctor stated that he could not say how many times Metts had
been hit and that his injuries could be consistent with being
punched once or more than once.
HPD Officer Riley Saunders, who arrived at the scene
after the incident occurred, testified that he apprehended
Miranda, Rodriguez, and Victor Vargas as they were running away
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from the scene. He placed the three men in a field lineup with
a male bystander who had not been involved in the incident.
Wight and Metts both identified Miranda and Rodriguez as males
that had hit Metts. Officer Saunders stated that, at some point
after the identification, Miranda said, “Officer, to be honest,
I did it. I hit the kid.” The officer further testified that
during booking he noticed Rodriguez wince as his handcuffs were
removed and that his right hand “look[ed] a little puffy”; the
officer did not recall observing any injuries to Miranda’s
hands.
Officer Gazelle testified that on the night of the
incident he was flagged down in response to an assault-type case
that occurred in front of an ABC store. The officer stated that
he viewed a surveillance video from the ABC store but was unable
to obtain a copy of it at the time. He left a form with the
manager requesting a copy of the video. Officer Gazelle
indicated that he took one picture of the surveillance video
with his phone.
Det. Burger testified that he interviewed Metts in the
early morning of March 28, 2015, in an emergency room at Tripler
Medical Army Hospital. He prepared two separate photographic
lineups, one containing a photograph of Miranda and the other
containing a photograph of Rodriguez, prior to meeting with
Metts and Smith at the hospital. Neither Metts nor Smith was
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able to identify anyone depicted in the photographs as being a
suspect in the case. Det. Burger testified that he learned
during his investigation that Rodriguez may have assaulted
Metts. The detective also explained that he obtained an
administrative subpoena requesting the video surveillance from
the ABC store and was eventually told the video had been written
over.
Miranda testified that he, Rodriguez, and Vargas were
enlisted in the United States Army and stationed on Oʻahu at the
time of the incident. That evening, as they were walking toward
an ABC store in Waikīkī, one of his friends was teasing him
about an ex-girlfriend and pointing in the direction she used to
live; they began laughing and continued walking. Miranda heard
someone say, “What the fuck? What the fuck did you just say to
me? I’ll fuck you up?” and he, Rodriguez, and Vargas turned
around. Metts and Smith were yelling at them, and Rodriguez
headed toward the two men as they headed toward them, until
Rodriguez and Metts were face to face. Metts shoved and grabbed
Rodriguez, Miranda stated. He told Metts and Smith to relax and
that they were not talking about them. Metts replied that he
“[didn’t] give a fuck, he’ll fuck me up,” and came towards him;
Miranda stated that he then defended himself with one punch to
the right side of Metts’ face, aiming for the nose. He started
to walk away and turned around again when he noticed that
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neither of his two friends had followed him, and he saw
Rodriguez in a scuffle with Metts. He went over to grab
Rodriguez, and the two walked away. Miranda said that they were
stopped by police and after the field lineup he told officers,
“to be honest . . . I hit the kid in self-defense.”
During Miranda’s testimony, defense counsel attempted
to introduce the photograph of the surveillance video into
evidence, and a bench conference was held. The State argued
that if Miranda introduced the photograph, it should be allowed
to call Officer Gazelle in rebuttal to give context as to what
the photograph showed and what was in the video. The court
stated that it agreed. Miranda’s counsel responded that the
photograph’s purpose was to show the area where the incident
happened, there was no dispute as to the photograph’s accuracy,
and testimony would not be elicited about any actions depicted
in the photograph. Rather, the photograph was to explain the
area and to show who was pictured in it. The court ruled that
the officer would be allowed to testify as to the video’s
contents if the photograph was introduced, noting that its
introduction would be prejudicial without the officer’s
testimony and that Miranda was not even in the picture. Counsel
replied, “Right, that supports our defense.” The court stated
it had ruled.
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Miranda was then shown the photograph. The photograph
fairly and accurately depicted the front of the ABC store,
Miranda stated, and Metts, Rodriguez, and Vargas were pictured,
but he was not. Rodriguez was holding a hat in the photograph,
Miranda testified, and Rodriguez had been wearing the hat prior
to the photograph being taken and as they passed the ABC Store.
After Miranda’s testimony, the State called Officer
Gazelle as a rebuttal witness. Defense counsel objected to the
testimony as hearsay and disputed that the introduction of the
photograph had opened the door to Gazelle’s testimony. The
court overruled the objection, and Officer Gazelle testified
that he viewed surveillance video capturing the time frame from
about 11:30 p.m. until 11:34 p.m. The officer testified that at
some point during the video, Metts, Smith, Miranda, Rodriguez,
and Vargas appeared, and that Miranda and Rodriguez seemed to be
“calling out Metts and Smith.” The officer explained that
Miranda’s and Rodriguez’ body language was “more forward” and
they had “clenched fists” while Metts and Smith put their hands
up at some points and their body language indicated that they
did not want trouble. Miranda approached Metts and Rodriguez
approached Smith, the officer testified, and at some point,
Metts had his hands up and stepped to the side, and Miranda
threw a punch toward Metts. At a different point Rodriguez
threw a punch at Smith. The officer could not recall whether
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Miranda or Rodriguez threw the first punch. After the initial
punches were thrown, bystanders began to intervene and broke up
the fight. Miranda, Rodriguez, and Vargas walked away, but
Miranda returned about thirty seconds later and punched Metts
one time before walking away again. The officer saw at least
three, maybe four, punches being thrown in the video, and that
at least two of the punches hit Metts and at least one punch hit
Smith.
Officer Gazelle testified that he was rushed when he
was watching the video and was not in control of the rewinding,
fast-forwarding, pausing, or stopping of the video while he
watched. The officer acknowledged that his report included only
three sentences about the surveillance video, he had testified
to some facts that were not in his report, and he wrote in his
report that the photograph depicted “the moment before Rodrigues
punched Metts’ face.” Officer Gazelle testified, however, that
he did not now remember if Rodriguez actually threw the punch or
not. The officer said that he did not recall taking any notes
while he watched the video, he did not remember seeing any
shoulder bump in the video, and he did not know how the argument
began.
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At the close of the evidence, the court instructed the
jury as to accomplice liability.6 Defense counsel objected to
this instruction as submitted to the jury, arguing that it
misstated the law as set out in applicable precedent.7
The jury found Miranda guilty as charged.
Subsequently, Miranda filed a motion to set aside the verdict
and enter a judgment of acquittal or in the alternative for a
new trial (motion to set aside the verdict). At the hearing on
the motion, defense counsel maintained that an investigator had
contacted Hirata, the ABC employee, following the jury’s verdict
and learned that Hirata did not receive, and had never received,
any administrative subpoena relating to the security video. The
6
The accomplice instruction read as follows:
A defendant charged with committing an offense may be
guilty because he is an accomplice of another person in the
commission of the offense. The prosecution must prove
accomplice liability beyond a reasonable doubt.
A person is an accomplice of another in the
commission of an offense with the intent -- if, with the
intent to promote or facilitate the commission of the
offense, he aids or agrees or attempts to aid the other
person in the planning or commission of the offense.
Mere presence at the scene of an offense or knowledge that
an offense is being committed, without more, does not make a
person an accomplice to an offense. However, if a person plans
or participates in the commission of an offense with the intent
to promote or facilitate the offense, he is an accomplice to the
commission of the offense.
7
During jury deliberations the court received two jury
communications regarding the accomplice liability instruction. In its first
communication to the court, the jury asked: “Reference page 39. Could you
please clarify accomplice.” The court’s reply instructed the jury to “Please
refer to your jury instructions.” In its second communication, the jury
asked: “Is it required to first establish whether or not the defendant caused
the substantial bodily injury before we consider the accomplice provision?”
The court replied: “Please consider your instructions as a whole.”
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court denied the motion, concluding that the defense had
opportunities to contact Hirata both prior to and during trial
but failed to do so.
On July 12, 2017, the circuit court sentenced Miranda
to four years of probation (circuit court judgment). Miranda
timely appealed the circuit court judgment to the Intermediate
Court of Appeals (ICA).
II. ICA PROCEEDINGS
Miranda argued before the ICA that the circuit court
erred, inter alia, in precluding the defense from cross-
examining Metts on the Marine Corps’ code of conduct and for
allowing Officer Gazelle to testify as to the contents of the
security video. The ICA concluded that Miranda had been given a
constitutionally adequate opportunity to demonstrate to the jury
any bias or motive to lie Metts may have had because the jury
knew that Metts was a marine at the time of the incident, that
the Marine Corps has a code of conduct, and that the code
provides that marines should not become overly intoxicated.8 The
ICA also noted that Metts was no longer in the military at the
time of trial and that any bias he may have had with respect to
his military career was no longer relevant. Additionally, the
ICA held that the admission of Officer Gazelle’s testimony about
8
The ICA’s memorandum opinion can be found at State v. Miranda,
No. CAAP-XX-XXXXXXX, 2019 WL 5099617 (App. Oct. 11, 2019) (mem.).
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the contents of the video was not erroneous. The ICA stated
that defense counsel was warned that introduction of the
photograph would open the door to the testimony, the evidence at
trial showed that the video was lost and thus supported the
testimony’s admission, and Miranda had not proven that the video
was lost in bad faith.9
III. STANDARDS OF REVIEW
A. Relevance of Evidence
A trial court’s determination regarding the relevance
of evidence is a conclusion of law. Walsh v. Chan, 80 Hawai‘i
212, 215, 908 P.2d 1198, 1201 (1995). Conclusions of law are
reviewed de novo under the right/wrong standard of review.
State v. Lavoie, 145 Hawai‘i 409, 421, 453 P.3d 229, 241 (2019)
(citing Maria v. Freitas, 73 Haw. 266, 270, 832 P.2d 259, 262
(1992)).
B. Constitutional Questions
Questions of constitutional law are reviewed de novo
under the right/wrong standard. State v. Ui, 142 Hawai‘i 287,
292, 418 P.3d 628, 633 (2018) (quoting State v. Friedman, 93
Hawai‘i 63, 67, 996 P.2d 268, 272 (2000)).
9
Additionally, Miranda appealed the denial of his pre-trial motion
to dismiss, the instruction given to the jury on accomplice liability, and
the denial of the post-trial motion to set aside the verdict. The ICA also
affirmed the circuit court rulings as to these points of error.
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IV. DISCUSSION
A. The Violation of Miranda’s Right of Confrontation Deprived
Him of a Fair Trial.
1. The Circuit Court Erred in Precluding Cross-Examination on
the Source of Metts’ Potential Bias.
The sixth amendment to the United States Constitution
and article I, section 14 of the Hawai‘i Constitution guarantees
an accused the right to confront adverse witnesses. State v.
Balisbisana, 83 Hawai‘i 109, 115, 924 P.2d 1215, 1221 (1996).
“Indeed, the main and essential purpose of confrontation is to
secure for the opponent the opportunity of cross-examination[,]
. . . [and] the exposure of a witness’ motivation in testifying
is a proper and important function of the constitutionally
protected right of cross examination.” Id. (alterations in
original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79
(1986)). Additionally, Hawai‘i Rules of Evidence (HRE) Rule
609.1(a) (2016) provides that the “credibility of a witness may
be attacked by evidence of bias, interest, or motive.” This
court has established that “bias, interest, or motive is always
relevant under HRE Rule 609.1.” State v. Levell, 128 Hawai‘i 34,
40, 282 P.3d 576, 582 (2012) (brackets omitted) (quoting State
v. Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987)).
Our decisions have displayed a commitment to
protecting an accused’s constitutional right to demonstrate the
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bias or motive of a witness in cross-examination. In
Balisbisana, the defendant was charged with abuse of a family or
household member. 83 Hawai‘i at 111, 924 P.2d at 1217. The
trial court excluded reference to the complainant’s conviction
for harassing the defendant, and the defendant was subsequently
convicted. Id. at 112-13, 924 P.2d at 1218-19. On appeal, we
held that the trial court’s exclusion of the prior conviction
violated the defendant’s right to confront the witness and
expose evidence of the complainant’s motive for bringing false
charges against him. Id. at 113-16, 924 P.2d at 1219-22. This
court explained that the appropriate inquiry is whether “the
jury had sufficient information from which to make an informed
appraisal of [the complaining witness’s] motives and bias,
absent evidence of her conviction for harassing [the
defendant].” Id. at 116, 924 P.2d at 1222. In not permitting
defense counsel “to expose the fact from which the jurors could
appropriately draw inferences relating to [the complainant’s]
motive or bias,” we concluded that the trial court abused its
discretion as “a reasonable jury might have received a
significantly different impression” of the complainant’s
credibility. Id.
In State v. Marcos, the defendant, who was convicted
of abuse of a family or household member, was not allowed to
cross-examine the complaining witness about a pending family
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court case concerning the custody of their child. 106 Hawai‘i
116, 117-20, 102 P.3d 360, 361-64 (2004). On appeal, the
defendant argued that the complaining witness had a motive to
fabricate the allegations against him and that his right to
cross-examine the complainant to demonstrate motive was
violated. Id. at 117, 102 P.3d at 361. In vacating the ICA’s
affirmance of defendant’s conviction, we held that the
defendant’s right of confrontation was violated as “the jurors
were entitled to have the benefit of the defense theory before
them so that they could make an informed judgment as to the
weight to place on complainant’s testimony.” Id. (brackets
omitted).
In Levell, we again confirmed “the appropriate inquiry
is whether the trier of fact had sufficient information from
which to make an informed appraisal of the witness’s motives and
bias.” 128 Hawai‘i at 40, 282 P.3d at 582. In that case, the
defendant, who was charged with harassment for allegedly shoving
the complainant, was not permitted to cross-examine the
complainant as to whether she had stolen and used the
defendant’s credit cards after his arrest. Id. at 35, 40, 282
P.3d at 577, 582. The ICA upheld the conviction. On review,
this court concluded that the defendant’s constitutional right
to confront the witness had been violated. Id. We explained
that if the defendant had been allowed to ask about the alleged
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theft, he might have elicited testimony tending to show that the
complainant was biased or motivated to fabricate or exaggerate a
story about harassment, which may have affected the trial
court’s view of the complainant’s testimony and, ultimately,
whether the State had proven its case. Id.
In State v. Acacio, the defendant was convicted of
terroristic threatening based on a domestic dispute between the
defendant and his ex-girlfriend, the complaining witness. 140
Hawaii 92, 94, 398 P.3d 681, 683 (2017). The trial court
precluded the defense from cross-examining the complainant with
regard to her knowledge of the defendant’s immigration status.
Id. The defense had sought to show that the complainant knew
that the defendant could be deported if he was arrested and her
desire to have him deported motivated her to exaggerate or
fabricate her allegation. Id. at 101, 398 P.3d at 690. On
appeal, the ICA affirmed the conviction, holding the jury had
sufficient information to appraise the credibility of the
complaining witness because the court permitted evidence that
the complainant wanted the defendant out of the house and that
she was angry with him for not leaving when asked and before
speaking to police. Id.
On certiorari review, this court held that the trial
court’s exclusion of this evidence violated the defendant’s
right to confrontation. Id. We stated that the “cross-
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examination of the complaining witness is not sufficient if the
defendant is deprived of an opportunity to present evidence
about the source of the complaining witness’s potential bias or
motive.” Id. Since the complaining witness’s knowledge of the
defendant’s immigration status may have motivated the
complainant to fabricate the abuse allegation, the trial court’s
exclusion of the evidence prevented the jury from having
sufficient information from which to make an informed assessment
of the witness’s bias or motive. Id.
These cases demonstrate that the appropriate inquiry
when reviewing an alleged violation of a defendant’s
constitutionally protected right to demonstrate bias or motive
is whether the trier of fact had sufficient information,
including as to its source, from which to make an informed
appraisal of the witness’s potential motive and bias. See
Acacio, 140 Hawaii at 100-01, 398 P.3d at 689-90; State v.
Brown, 145 Hawaii 56, 61-62, 446 P.3d 973, 978-79 (2019)
(complainant’s probation status created a potential interest to
shape her testimony that was different in nature than other
admitted evidence). Once the defendant is afforded the
threshold level of inquiry under the confrontation clause, the
trial court may conduct a balancing test to weigh the probative
value of any additional motive evidence against its potential
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for undue prejudice. Acacio, 140 Hawaii at 99, 398 P.3d at 688
(“[T]he trial court’s discretion becomes operative ‘only after
the constitutionally required threshold level of inquiry has
been afforded the defendant.’” (quoting Levell, 128 Hawaii at
39, 282 P.3d at 681)).
In this case, Metts testified that he had been
drinking at a bar immediately prior to the altercation, he was
not drunk on the evening of the incident, and the altercation
was initiated by a shoulder bump from Miranda’s group. Metts
also stated at trial that Miranda was the person who punched him
and that he did not remember shoving anyone during the incident.
Defense counsel questioned Metts about several inconsistent
statements made to Det. Burger after the incident, including
that Metts could not remember if it was Miranda or Rodriguez
that hit him, whether he was hit twice, and whether he had
shoved someone. Defense counsel then attempted to question
Metts about his knowledge of the consequences he would be
subjected to as a marine for violating its code of conduct on
drinking alcohol. The State objected, and Miranda argued that
the evidence went to Metts’ bias and motive. The court stated
that it would not allow inquiry into this area because there was
no evidence that Metts was overly drunk that night. The court
sustained the objection, thus precluding the defense from
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questioning Metts as to his knowledge of any consequences he
might have suffered as a marine with regard to his alcohol
consumption. Defense counsel then sought to question Metts as
to the code of conduct’s provisions on fighting. The court
sustained the State’s objection before Metts could respond to
the question.
Defense counsel’s questions sought to show that Metts
had an interest or motive to be untruthful in his statements to
police in order to avoid military discipline for his conduct
with regard to alcohol consumption and fighting. The source of
this motive was Metts’ awareness of the consequences he would be
subject to as an enlisted marine for engaging in prohibited
conduct with regard to drinking and fighting.
The circuit court entirely precluded cross-examination
as to the code of conduct with regard to fighting. The jury had
heard conflicting testimony during trial about who was
responsible for instigating the argument, whether Metts shoved
anyone, and how many punches were thrown. However, the jury did
not receive any testimony about Metts’ knowledge of the
discipline that may have been triggered for fighting. Awareness
of the conduct proscribed by the code of conduct regarding
fighting, that may have motivated Metts to exaggerate Miranda’s
participation in instigating the fight and minimize his own
culpability to avoid disciplinary consequences, might have
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affected the jury’s view of the veracity of Metts’ testimony.
In other words, without knowing what Metts knew or believed
regarding the consequences for violating the code of conduct as
to fighting, the jury was not presented with the “source” of
Metts’ potential bias, and it therefore had insufficient
information from which to make an informed appraisal of Metts’
motives and biases. Acacio, 140 Hawaii at 101, 398 P.3d at 690;
Brown, 145 Hawaii at 61-62, 446 P.3d at 978-79.
The ICA nevertheless concluded that Miranda was given
an adequate opportunity to demonstrate Metts’ bias because the
jury was informed that Metts was a marine, the Marine Corps has
a code of conduct, and the code proscribes becoming “overly
intoxicated.” The ICA’s analysis did not discuss the circuit
court’s preclusion of cross-examination as to provisions in the
code of conduct regarding fighting, except to say that any
motive Metts would have had to deflect responsibility for the
fight would have been apparent to the jury. But any assumption
by the ICA that the jury would have necessarily inferred there
were provisions in the code of conduct concerning fighting would
be flawed because the defense was not allowed to elicit this
evidence. Moreover, such an inference would not have informed
the jury as to the source of Metts’ motivation to shape his
testimony because defense counsel was prevented from eliciting
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testimony regarding Metts’ awareness of the consequences he
would face for violating provisions of the code of conduct for
fighting. Had defense counsel been allowed to elicit Metts’
knowledge of such consequences, the jury might have been left
with a different impression about whether Metts had an incentive
to minimize his actions to avoid punishment. The ICA’s reliance
on evidence that did not disclose the source of Metts’ bias or
motive was therefore error. See Brown, 125 Hawaii at 61-62, 446
P.3d at 978-79 (“Giving a defendant ‘considerable latitude’
during cross-examination of the complaining witness is not
sufficient if the defendant is deprived of an opportunity to
present evidence about the source of the complaining witness’s
potential bias or motive.” (brackets omitted) (quoting Acacio,
140 Hawaii at 101, 398 P.3d at 690)).
The ICA also concluded that because Metts was no
longer in the military at the time of trial, any motive or bias
he may have had at the time of the incident was no longer at
issue. However, any motive to fabricate or exaggerate
statements that Metts may have had at the time of the incident
is clearly relevant to the veracity of statements he made at
that time, as is an intent or natural inclination to provide
trial testimony consistent with his prior statements although he
was no longer serving in the military.
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Accordingly, the circuit court erred in precluding the
defense from asking Metts about his knowledge of the code of
conduct regarding fighting and the potential consequences that a
marine would be subject to for violation of its provisions.
Because Miranda was not given an opportunity to present evidence
about the source of Metts’ potential bias or motive, Miranda was
not afforded “the threshold level of inquiry required under the
confrontation clause” that would have provided the jury with
sufficient information from which to make an informed decision
of Metts’ “‘motives and bias’ as to [his] testimony.” Brown,
145 Hawaii at 62, 446 P.3d at 979. Thus, Miranda’s right to
confront adverse witnesses to show bias, interest, or motive
under article I, section 14 of the Hawai‘i Constitution was
violated, and the ICA erred in affirming the circuit court’s
ruling on this issue.10
2. The Error Was Not Harmless Beyond a Reasonable Doubt.
The denial of a defendant’s constitutional right to
impeach the credibility of a witness is subject to harmless
error review. Acacio, 140 Hawaii at 102, 398 P.3d at 691. “In
10
In light of our resolution, we do not address the circuit court’s
restriction of cross-examination regarding provisions in the code of conduct
as to drinking. Additionally, because we conclude that Miranda was not
provided the threshold level of inquiry required under the confrontation
clause, no further inquiry is required regarding application of HRE Rule 403.
Acacio, 140 Hawaii at 101 n.3, 398 P.3d at 690 n.3 (noting that this step in
the analysis is not necessary when the threshold level of inquiry under the
confrontation clause is not met).
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applying the harmless beyond a reasonable doubt standard the
court is required to examine the record and determine whether
there is a reasonable possibility that the error complained of
might have contributed to the conviction.” Id. (quoting State
v. Pond, 118 Hawaii 452, 461, 193 P.3d 368, 377 (2008)).
Several factors may be considered in determining whether a
violation of a defendant’s constitutional right to impeach was
harmless, including: “the importance of the witness’ testimony
in the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution’s case.” Id.
(quoting Levell, 128 Hawaii at 42, 282 P.3d at 584).
Metts testified that the incident was instigated by
Miranda’s group, the group was making derogatory arguments
toward them, and he did not recall shoving anyone. Miranda
stated that Metts and Smith engaged his group first, Metts was
making threatening remarks, and he hit Metts in self-defense.
Metts’ testimony therefore stood in direct conflict with
Miranda’s explanation that he acted in self-defense.
While two other witnesses presented testimony of what
happened during and after the incident, neither witness provided
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evidence as to how the altercation was initiated. Wight stated
that he became aware of the incident when he heard yelling and
that he witnessed the punch soon after he turned around from
about 50 feet away. Officer Gazelle testified that he did not
know how the argument began and did not recall seeing a shoulder
bump in the video. The officer had only seen the video once,
two years prior, and did not take any notes while watching the
video. Additionally, there were several conflicting accounts as
to the number of punches thrown, the types of punches thrown,
the persons who threw the punches, and the number of times Metts
was hit.11 As such, Metts’ account of how the incident began and
unfolded was crucial to rebutting Miranda’s self-defense
testimony, and the case essentially turned on the credibility of
Metts and Miranda.
Because the jury’s perception of Metts’ credibility
could have been affected by the knowledge of a potential bias or
motive to fabricate or shape his testimony, there is a
11
Metts testified that he was hit once and did not remember if he
was hit twice. However, in a recorded interview with Det. Burger played for
the jury, Metts stated he was hit twice. Miranda stated he had only hit
Metts once and that he was aiming for Metts’ nose. Dr. Beckham testified
that Metts said he had been hit twice and that Metts had suffered fractures
to his jaw and nose, which could be consistent with being hit once or more
than once. Wight testified that he saw Miranda “uppercut” Metts once and
that Miranda cocked back his fist as if he were going to strike Metts once
more, but he did not punch Metts again. Officer Gazelle stated that the
video showed Metts getting punched at least two times and Smith getting
punched at least once and that he did not remember whether Rodriguez also
threw any punches, although he acknowledged that his report stated he “took a
screenshot depicting the moment before Rodrigues punched Metts face.”
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reasonable possibility that the circuit court’s error might have
contributed to Miranda’s conviction. The error was therefore
not harmless beyond a reasonable doubt.
B. The Circuit Court Erred in Determining that Miranda “Opened
the Door” to Testimony about the Contents of the Surveillance
Video.12
Miranda argues that the circuit court erred in finding
that the introduction of the photograph “opened the door” to
Officer Gazelle’s testimony regarding the surveillance video.
This court has stated that the doctrine of “opening
the door” is essentially a rule of expanded relevancy.13 State
v. Lavoie, 145 Hawai‘i 409, 422, 453 P.3d 229, 242 (2019)
(quoting State v. James, 677 A.2d 734, 742 (N.J. 1996)).
Pursuant to this doctrine, when one party presents inadmissible
evidence to the jury, the opposing party is permitted to adduce
pertinent evidence that would otherwise be inadmissible in order
to rebut the improperly introduced evidence. Id. The extent of
this doctrine is limited, and it does not allow a party to
12
Although we conclude that the violation of Miranda’s right to
cross-examine the witness denied him a fair trial, we consider the admission
of the testimony about the contents of the video to address the ICA’s
analysis and to provide guidance in the event the issue arises in subsequent
proceedings.
13
This rule has also been referred to as the doctrine of “curative
admissibility” or “fighting fire with fire.” State v. Fukusaku, 85 Hawaii
462, 497, 946 P.2d 32, 67 (1997). This court has not determined whether to
adopt the doctrine. State v. Lavoie, 145 Hawaii 409, 424, 453 P.3d 229, 244
(2019) (“[E]ven if we were to adopt the doctrine of curative admissibility,
it would not be applicable to the present case.” (quoting Fukusaku, 85 Hawaii
at 497, 946 P.2d at 67)).
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adduce inadmissible evidence for the purpose of rebutting
inferences raised by the introduction of admissible evidence.
Id. at 422-23, 453 P.3d at 242-43 (“Admissible evidence
therefore does not ‘open the door’ to otherwise inadmissible
evidence.” (citing State v. Middleton, 998 S.W.2d 520, 528 (Mo.
1999))); State v. Fukusaku, 85 Hawaii 462, 497, 946 P.2d 32, 67
(1997) (holding that defense counsel did not “open the door” to
the introduction of inadmissible evidence by eliciting
admissible evidence).
In this case, defense counsel sought to admit the
photograph Officer Gazelle took of the security video into
evidence. As an offer of proof, counsel stated that the picture
was an accurate depiction of the sidewalk where the altercation
occurred on the night of the incident. The State maintained
that the introduction of this picture would open the door to
testimony as to the rest of the video but did not dispute that
the picture accurately depicted the scene, and Miranda testified
that the picture was a fair and accurate representation of the
scene. It is well-settled that a photograph of the scene should
be admitted so long as a witness who is familiar with the scene
and competent to testify verifies the photograph as an accurate
representation of the scene at the time in question. Territory
v. Hays, 43 Haw. 58, 65 (Haw. Terr. 1958); State v. Sequin, 73
Haw. 331, 338, 832 P.2d 269, 273 (1992) (affirming trial court’s
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exclusion of a photograph that did not accurately depict the
relevant area). The photograph was thus admissible evidence of
the appearance of the area where the altercation occurred on the
night of the incident. Additionally, Officer Gazelle’s police
report stated that the photograph depicted the moment before
Rodriguez punched Metts’ face, and its admissibility was not
disputed at trial. Because Miranda was not attempting to
introduce inadmissible evidence but instead admissible
photographic evidence of the scene, the “opening the door”
doctrine is not applicable.14
It is noted that the prosecutor and the court appeared
to be concerned that the photograph would be misleading to the
jury as it only represented a single snapshot of the entire
incident and Miranda was not shown in the photograph. The
concerns of the prosecutor and the court could have been
addressed by providing a cautionary instruction. See, e.g.,
Hawaii Standard Jury Instruction Criminal 2.01 Cautionary
Instruction--Recess (“[K]eep an open mind until all the evidence
has been presented, the Court has instructed you on the law that
applies in this case and final arguments have been given.”);
14
Because we find that the opening the door doctrine is
inapplicable in this case, we do not reach the issue of whether this court
should adopt the doctrine. See Lavoie, 145 Hawaii at 424, 453 P.3d at 244;
Fukusaku, 85 Hawaii at 497, 946 P.2d at 67.
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2.04 Cautionary Instruction During Trial Regarding Transcript of
a Recording. The prosecutor could have requested and the court
could have fashioned a cautionary instruction that, for example,
informed the jury that the photograph depicted a single snapshot
of the entire incident and the jury must consider the weight to
be given to the photograph in light of all the other evidence
that was admitted for its consideration.
While we conclude that defense counsel did not open
the door to Officer Gazelle’s testimony regarding the
surveillance video, the State argues, and the ICA appears to
have concluded, that the evidence was nevertheless admissible
under HRE Rule 1004 (2016). Under HRE Rule 1004(1), “The
original or a duplicate is not required, and other evidence of
the contents of a writing, recording, or photograph is
admissible if . . . . [a]ll originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad
faith.” We have previously held that testimony can serve as a
duplicate of an original under HRE Rule 1004. State v.
Espiritu, 117 Hawaii 127, 135, 176 P.3d 885, 893 (2008). Here,
Officer Gazelle and Det. Burger testified that they attempted to
get a copy of the surveillance video but were unsuccessful, and
there was no evidence that the surveillance video was destroyed
in bad faith. Additionally, Officer Gazelle’s testimony as to
what he viewed in the video was other evidence of the contents
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of a recording. See Espiritu, 117 Hawaii at 135, 176 P.3d at
893 (stating testimony about the contents of a destroyed text
message was admissible under HRE Rule 1004 as other evidence).
The government accordingly satisfied the criteria for admission
of the testimony under HRE Rule 1004.
But because the circuit court allowed Officer Gazelle
to testify regarding the contents of the video based on its
ruling that the defense had opened the door to this testimony,
it appears that the circuit court did not consider and did not
make any determination on the record as to whether the evidence
should have been excluded under HRE Rule 403 (2016). HRE Rule
403 “applies to all evidence.” State v. Plichta, 116 Hawaii
200, 231 n.15, 172 P.3d 512, 543 n.15 (2007) (Acoba, J.,
dissenting); United States v. Chapman, 765 F.3d 720, 726 n.1
(7th Cir. 2014) (“[Federal Rule of Evidence (FRE)] Rule 403
applies to all evidence[.]”); HRE Rule 403. The rule itself
provides that otherwise admissible 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.
Here, one critical determination in the admission of the
testimony of the contents of the video was whether the probative
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value of the evidence was substantively outweighed by its danger
of unfair prejudice to Miranda.15
Officer Gazelle testified about the contents of the
four-minute video that he viewed once two years earlier. The
officer testified that he was rushed when he was watching the
video and was not in control of the rewinding, fast-forwarding,
pausing, or stopping of the video while he watched. Officer
Gazelle’s testimony was the only evidence of the contents of the
video besides the single photograph of the video taken by the
officer. While Officer Gazelle’s testimony regarding his
recollection of the video clearly has probative value, it served
as essentially an eyewitness account by a law enforcement
officer of the entirety of the incident, potentially raising
concerns that the evidence would be unfairly prejudicial.
This concern is compounded by the fact that Miranda
appeared to have been hampered in cross-examining the officer
about the video’s contents. There is no contention that defense
counsel had viewed the video prior to it being destroyed, and
counsel was without any other effective means--such as
15
“Unfair prejudice . . . means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional
one.” HRE Rule 403 cmt. (quoting Advisory Committee’s Note to Federal Rules
of Evidence 403); see also State v. Rosario, 966 A.2d 249, 259 (Conn. App.
Ct. 2009) (“Unfair prejudice exists when the evidence tends to have some
adverse effect upon [the party against whom the evidence is offered] beyond
tending to prove the fact or issue that justified its admission into
evidence.” (alteration in original)).
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contemporaneous notes or a detailed report--to determine if
there were inconsistencies with the officer’s recollection and
the video or to cross-examine the officer to show that he might
have misremembered, embellished, or omitted facts in recounting
the video’s contents.16
On remand, the court should evaluate the admissibility
of the officer’s testimony of the video’s contents under HRE
Rule 403.17
16
See, e.g., United States v. Brown, No. 08-0098, 2009 WL 2338112,
at *2 (W.D. Pa. July 29, 2009) (reasoning that it would be “extremely
difficult” for defense counsel to cross-examine the witnesses about a video
viewed four years prior because “counsel [had] not viewed the video and [did]
not have any other objective account of the content of the tape with which to
compare” and concluding that the probative value of the evidence was
outweighed by the danger of unfair prejudice and other FRE 403
considerations); United States v. Ortiz, No. 11-251-08, 2013 WL 101727, at *5
(E.D. Pa. Jan. 7, 2013) (holding that it was not unfairly prejudicial for two
witnesses to testify about their recollection of a deleted video recording
because the witnesses had created contemporaneous notes and reports at the
time they watched the video recording, allowing defense counsel to
effectively cross-examine the witnesses); Olabisi v. Farmington Ave. Prof’l
Bldg., LLC, No. CV095028880S, 2012 WL 1139190, at *4 (Conn. Super. Ct. Mar.
19, 2012) (“[T]he witness had viewed the videotape . . . over four years
before the trial. It would have been extremely difficult for the plaintiff’s
attorney to cross-examine her regarding her testimony about what was on the
videotape when he had no opportunity to view it and no means to verify that
the tape was in truth a tape of the plaintiff’s activities on the day of the
incident.”).
17
Miranda also argues that the ICA erred in holding that the loss
of the video did not violate his right to a fair trial. At trial, Officer
Gazelle and Det. Burger testified that they attempted to retrieve the video
but were unsuccessful, and the video was ultimately written over. While
Miranda cites a declaration by Hirata submitted post trial seeming to
contradict these statements, Hirata did not testify at the pre-trial hearing
on the motion to dismiss, during trial, or during post-trial motions. The
record therefore does not establish that the State’s delay caused the loss of
the evidence. See State v. Dunphy, 71 Haw. 537, 543, 797 P.2d 1312, 1315-16
(1990) (holding that the prejudice to the defendant’s defense was caused by
the loss of tapes due to the police department’s unreasonable delay). The
issue may be subject to further hearing on remand. Further, we conclude that
Hirata’s declaration did not provide “new evidence” such that the circuit
(continued . . .)
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V. CONCLUSION
Based on the foregoing, we vacate the ICA’s judgment
on appeal and the circuit court judgment and remand the case to
the circuit court for further proceedings consistent with this
opinion.
Dwight C.H. Lum /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Chad M. Kumagai
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
(. . . continued)
court erred in denying his motion to set aside the verdict and enter a
judgment of acquittal.
In light of our disposition, it is unnecessary to address whether
there was sufficient evidence to support an accomplice instruction and
whether the accomplice instruction was consistent with our law on accomplice
liability. We also reject Miranda’s argument subsumed within his questions
presented in his application for writ of certiorari that there was
insufficient evidence to support his conviction based upon our review of the
evidentiary record viewed in the most favorable light to the State. See
State v. Williams, 146 Hawaii 62, 76, 456 P.3d 135, 149 (2020) (“The test on
appeal is not whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the conclusion of the trier
of fact.” (quoting State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241
(1998))).
37