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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-JUN-2020
08:43 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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________________________________________________________________
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
SAMUEL JOO RIM SU, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-18-00252)
JUNE 15, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Samuel Joo Rim Su (“Su”) was convicted of Operating a
Vehicle under the Influence of an Intoxicant (“OVUII”). At
trial, his counsel sought to impeach the credibility of one of
the State’s witness, Honolulu Police Department (“HPD”) Officer
Jared Spiker (“Officer Spiker”), under Hawaiʻi Rules of Evidence
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(“HRE”) Rule 608(b). That rule states, in relevant part, as
follows:
Specific instances of conduct. Specific instances of the
conduct of a witness, for the purpose of attacking the
witness’ credibility, if probative of untruthfulness, may
be inquired into on cross-examination of the witness and,
in the discretion of the court, may be proved by extrinsic
evidence. . . .
Defense counsel contended that the “specific instances of
conduct” evincing Officer Spiker’s untruthfulness were contained
in transcripts from three other proceedings in which Officer
Spiker was a witness for the State: State v. Kuni, State v.
Lee, and State v. Thomas. The District Court of the First
Circuit (“district court”)1 did not allow defense counsel to
cross-examine Officer Spiker concerning these proceedings,
ruling that none were probative of Officer Spiker’s
untruthfulness.
The Intermediate Court of Appeals (“ICA”) upheld the
evidentiary rulings in a summary disposition order (“SDO”).
State v. Su, CAAP-XX-XXXXXXX, 2019 WL 2296467 (Haw. App. May 30,
2019) (SDO). The ICA further stated that the district court
“was able to review all the materials” submitted by defense
counsel concerning the Kuni, Lee, and Thomas proceedings. Su,
SDO at 6. Therefore, the ICA held, the district court “had ‘in
its possession sufficient information to appraise the biases and
motivations of the witness’ and did not abuse its discretion by
1 The Honorable Trish K. Morikawa presided.
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preventing further cross-examination of Officer Spiker”
concerning his testimony in those proceedings. Id.
We accepted certiorari to clarify that admissibility of
evidence under HRE Rule 608(b)2 involves a two-step
inquiry: (1) whether the specific conduct evidence proffered for
the “purpose of attacking the witness’[s] credibility” is
“probative of untruthfulness,” and, if so, (2) whether the
probative value of the specific conduct 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 pursuant to HRE Rule 403. An appellate court reviews
the trial court’s two-step admissibility determination under the
right/wrong standard as to the first step, and under the abuse
of discretion standard as to the second step. We also accepted
certiorari to correct the ICA’s SDO to the extent that it
suggests that a trial court can consider excluded evidence in
reaching judgment.
We therefore vacate the ICA’s July 2, 2019 Judgment on
Appeal, as well as the district court’s August 2, 2018 Judgment.
2 We are addressing the evidentiary rule. A defendant also has a
constitutional right to cross-examine a witness and elicit testimony upon
matters bearing upon the witness’s credibility. See State v. Jones, 62 Haw.
572, 578, 617 P.2d 1214, 1219 (1980).
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This case is remanded to the district court for further
proceedings consistent with this opinion.
II. Background
A. District court proceedings
On January 24, 2018, the State charged Su via Complaint
with one count of OVUII, in violation of HRS § 291E-61(a)(1)
and/or (a)(3) (2007).3
1. Defense notices of intent to use impeachment evidence
a. First notice of intent (Kuni ADLRO proceedings)
On May 1, 2018, Su filed three Notices of Intent to Use
Impeachment Evidence against the State’s witness, Officer
Spiker. The first notice of intent informed the court that Su
intended to use extrinsic evidence, in the form of transcripts
of a proceeding, from an unrelated ADLRO hearing involving
Respondent Selina Kuni, to show that Spiker had “admitted to
submitting a false sworn statement” to ADLRO. The transcript
read as follows, with emphasis added:
ATTORNEY BURK [counsel for Selina Kuni]: Okay. And after
going to the police station, taking Ms. Kuni to the police
station, you went over the notice of administrative
revocation with her?
OFFICER SPIKER: Yes.
ATTORNEY BURK: Okay. And following, I guess after going
over the notice of administrative revocation with her you
also signed the fourth page, correct?
OFFICER SPIKER: Yes.
3 Su was ultimately tried on just the HRS § 291E-61(a)(1) charge.
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ATTORNEY BURK: Okay. And on the fourth page you swear and
affirm that the pages one to four of the form that you
handed in provided to the ADLRO were read to her and was
issued to her?
OFFICER SPIKER: Yes.
. . . .
ATTORNEY BURK: Yeah. So I am handing you exhibit A for
identification. Do you recognize that?
OFFICER SPIKER: Yes.
ATTORNEY BURK: Okay. And what do you recognize that to
be?
OFFICER SPIKER: Appears to be the revocation paper I read
to Ms. Kuni.
ATTORNEY BURK: The first page only.
OFFICER SPIKER: The first page, yeah.
ATTORNEY BURK: Okay.
. . . .
ATTORNEY BURK: Okay. Now and this was the form that you
gave to Ms. Kuni?
OFFICER SPIKER: I believe so, yes.
ATTORNEY BURK: Okay. Now could you look at the form which
was handed to the ADLRO?
OFFICER SPIKER: Uh huh.
. . . .
ATTORNEY BURK: And we direct you to part one, paragraph
two.
OFFICER SPIKER: Yes.
ATTORNEY BURK: Those are different, correct?
OFFICER SPIKER: Yes.
ATTORNEY BURK: Okay. So the form that you issued, the
form that you issued to Ms. Kuni is in fact not the form
that you provided to the ADLRO? It is not identical to the
one you provided to ADLRO?
OFFICER SPIKER: Yes.
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ATTORNEY BURK: Okay. And the form that you issued or gave
to the A[D]LRO, handed in to the ADLRO you had altered the
form after giving it to Ms. Kuni, correct?
OFFICER SPIKER: I believe so, yes.
ATTORNEY BURK: Explain, if you have an explanation, or if
you recall.
OFFICER SPIKER: I can’t recall why I did that because
normally I normally check it off and then make the copies
but I can’t recall why, I know she initialed everything
that she refused. I just made an error on my part. As I
recall she did initial a refusal . . . I guess it is just
–-
ATTORNEY BURK: But whenever, on the form when you swear
and affirm that you handed that form to her, that is not in
fact true then, correct?
OFFICER SPIKER: Yes, in this instance, yes, not true.
ATTORNEY BURK: Thank you. No further questions.
(Emphases added.)
b. Second notice of intent: Lee OVUII trial
In the second notice of intent, Su asked the district court
to take judicial notice of the records and files in an unrelated
OVUII case, State v. Lee. He intended to use, as extrinsic
evidence, testimony Officer Spiker provided about how the
defendant in that case, Michelle Lee, had been driving on the
wrong side of the road. The judge in the Lee case, Judge Lanson
Kupau, specifically found that Officer Spiker’s testimony did
not make “physical sense” and acquitted the defendant. Spiker’s
testimony had proceeded as follows:
Q [by the State on direct examination]: And, Officer
Spiker, on . . . October 26, 2016, what did you initially
stop the defendant for?
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A [Spiker]: The defendant was driving on the wrong side of
the road, crossing the double solid yellow lines on
Kapiʻolani Boulevard just prior to Piʻikoi Street.
. . . .
Q: And what was your vantage point when you observed [the
vehicle going on the wrong side of the road]?
A: I’d say about maybe 20 yards away.
. . . .
A: It was traveling head-on in the opposite direction. I
was traveling east on Kapiʻolani Boulevard and the -- and
the vehicle was traveling west in the furthest makai lane.
Q: All right. And about how far away was the vehicle when
you first made this observation?
A: I’d say about 20 yards.
Q: Okay. And do you recall, you said also that you saw
the vehicle cross over double solid yellow lines?
A: Yes.
Q: When did you see that in the sequence of events?
A: . . . . [W]hat caught my attention was I observed a
white BMW, it was about -- from my estimation about three
to five yards over the double solid yellow line, traveling
west in the eastbound side of Kapiʻolani Boulevard.
Q: Okay.
A: For about four to eight seconds. That’s what caught my
attention.
. . . .
Q: . . . . And which lane were you in on the eastbound
direction?
A: On the middle lane.
On cross-examination, the defense attorney elicited the
following testimony from Officer Spiker about his observations
of the defendant’s driving:
Q: On October 26 you said you were 20 yards away, correct,
when you first observe[d] Miss Lee?
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A: It’s an estimate around there, yes.
Q: About 20 yards. And but you were traveling, correct?
A: Yes.
Q: You were driving?
A: Yes.
Q: Okay. And what is the speed limit in the area?
A: Thirty-five miles per hour.
Q: And were you going [the] speed limit or were you going
slower or faster would you estimate when you first saw [the
defendant driving]?
A: Maybe -- maybe a little slower than the speed limit.
Q: So about 30 maybe?
A: I can’t speculate. Maybe 25.
Q: Okay. Is -- well, and would you estimate Miss Lee was
driving at about the speed limit?
A: I’d say around there. I can’t recall her speed.
Q: She was -- but speeding wasn’t an issue?
A: She was not traveling -- she was not speeding, no.
At the close of evidence, defense counsel moved for a
judgment of acquittal, arguing that Officer Spiker’s testimony
“just doesn’t make sense.” Defense counsel argued there should
have been a collision between the defendant and Officer Spiker
if, as Officer Spiker testified, (1) both were separated by a
distance of 20 yards; (2) he was traveling at 25 miles an hour;
(3) she was traveling at 35 miles an hour; (4) the defendant was
“three to five yards” over the double solid yellow line, meaning
in Officer Spiker’s lane of travel; and (5) Officer Spiker
observed her driving towards him for four to eight seconds. The
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district court granted the defendant’s motion for judgment of
acquittal, stating the following:
Looking in the light most favorable to [the] State and
resting solely upon the testimony of Officer Spiker at this
point in time, the Court agrees with defense counsel.
Officer Spiker’s testimony simply does not make sense as he
was -- he testified that she crossed the double solid line
three to five yards, which is nine to fifteen feet, at
approximately 20 yards away from him in the opposite
direction.
And if she was going the speed limit, and even if he
was going at 25 miles an hour, within seconds that places
her not only in the direct lane oncoming Officer Spiker,
but at 15 feet at his outside estimate would place her in
the -- partially the middle lane. So and in the event at
that speed and if we listen to Officer Spiker and that she
was at that distance for four to eight seconds simply
doesn’t make physical sense.
As a result, the Court cannot take his testimony and
grants the motion for judgment of acquittal.
c. Third notice of intent: Thomas harassment trial
Lastly, in the third notice of intent, Su’s counsel asked
the district court to take judicial notice of the records and
files in an unrelated harassment case involving defendant
Darrell Thomas, whom the district court found not guilty after a
bench trial. Su’s counsel intended to introduce extrinsic
evidence of Officer Spiker’s police report, recounting Thomas’s
actions during a brawl in the lobby of the Ala Moana Hotel.
Su’s counsel alleged the details in the police report “d[id] not
match the video evidence from the case.” Specifically, Officer
Spiker’s police report related that, during the brawl, he
encountered Thomas, who “had a fighting stance and his fists
were clenched.” The police report stated Thomas refused to
comply when Officer Spiker placed him under arrest for
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harassment, so Officer Spiker “did a double-leg take down and
took [Thomas] to the ground.” According to the police report,
Thomas then told Officer Spiker, “[F]uck you pig.”
Su’s counsel asserted that video evidence showed Thomas
assisting a person who had been knocked out and was lying on the
ground. According to Su’s counsel, a third party pushed Thomas
into Officer Spiker, who then tackled Thomas to the ground and
ran out of the hotel lobby. Su’s counsel stated Officer Spiker
then returned to the hotel lobby and confronted Thomas, who held
his open palms out and appeared to be pleading with Officer
Spiker. Su’s counsel contended Officer Spiker then arrested and
handcuffed Thomas without incident.
To support his argument, Su’s counsel appended a
declaration from Thomas’s counsel, William Li, averring that the
still photos (appended as exhibits to the notice of intent)
accurately depicted the incident that was captured on a video-
recording of the Ala Moana Hotel lobby, which had been entered
into evidence in Thomas’s case. Su’s counsel represented that
the video-recording was “later destroyed by the prosecution.”
Su’s counsel also appended as exhibits the trial
transcripts in Thomas’s case, in which Officer Spiker testified
consistently with his police report. Su’s counsel argued that,
on cross-examination, Officer Spiker stated that the video-
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recording did not show Thomas with clenched fists or throwing
punches. Thomas was ultimately acquitted.
2. The State’s memorandum in opposition to
Defendant’s notices of intent #1, #2, and #3
In its memorandum in opposition to the defense’s three
notices of intent, the State asked the district court to
preclude introduction of the evidence from the Kuni, Lee, and
Thomas proceedings. The State quoted State v. Torres, 85 Hawaiʻi
417, 425, 945 P.2d 849, 857 (App. 1997), for the following
proposition about HRE Rule 608: “[W]itness character evidence
may be defined as evidence that directly relates to general
credibility of the witness, rather than the believability of
specific testimony, and conveys some judgment about the ethics
or moral qualities of that witness.” The ICA in Torres went on
to note that, “in many circumstances, a witness’s misstatements
may be due to defects in memory or knowledge, or attributable to
bias, rather than indicative of untruthfulness.” 85 Hawaiʻi at
427, 945 P.2d at 859. The State argued that Officer Spiker’s
testimony in the Kuni, Lee, and Thomas proceedings “only show
that Officer Spiker is a human being” who makes mistakes; may
not accurately estimate distances and speeds; and may not
remember the exact details of an incident that occurred months
earlier, lasted two minutes, and involved over 60 people
brawling in a hotel lobby. First, the State argued that Officer
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Spiker’s testimony in the Kuni proceeding showed only that he
checked off a box on Kuni’s paperwork later and that he
“admit[ted] to making a mistake.” Second, the State contended
that Officer Spiker’s testimony in the Lee case was “rejected
because ‘it didn’t make sense’ to Judge Kupau, not because
Officer Spiker had a reputation or character for
untruthfulness.” Third, the State asserted that discrepancies
in Officer Spiker’s police report and the video-recording in the
Thomas case, at most, called into question his “credibility as
to personal knowledge,” but did not give rise to a “character of
untruthfulness.”
3. Trial
Disposition of Su’s notices of intent was consolidated with
trial on the HRS § 291E-61(a)(1) charge. The district court
proposed calling Officer Spiker to the stand for direct
examination, after which it would address the defense’s notices
of intent; counsel for the State and for Su agreed.
Before Officer Spiker was called to testify, however, the
State called Officer Mitchell Cadena (“Officer Cadena”) to
testify. Officer Cadena testified that on January 6, 2018, at
approximately 12:55 a.m., he saw Su on a moped on Wilder Avenue
going eastbound, prior to Keʻeaumoku Street. Su was “driving
like ‘S’ pattern in the lane,” meaning he was “[g]oing side to
side within the lane,” before crossing into an adjacent
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eastbound lane of travel twice, and then crossing the double-
yellow line into the westbound lanes of travel once. Officer
Cadena then initiated a traffic stop and called for back-up;
Officer Spiker would arrive in a few minutes to assist Officer
Cadena. Upon speaking with Su, Officer Cadena “detected an odor
of some sort of an alcoholic beverage emitting from [Su’s]
breath,” and noted Su’s “eyes were red, watery, and glassy.”
The State then called Officer Spiker, who testified on
direct examination that he covered Officer Cadena on a traffic
stop; Officer Cadena had pulled over Su, and Officer Spiker
asked Su to perform three standardized field sobriety tests:
the Horizontal Gaze Nystagmus test, the Walk-and-Turn test, and
the One-Leg Stand test. Officer Spiker testified that he
detected a strong odor of an alcoholic type beverage coming from
Su’s breath, and Su had red, glassy, watery eyes; slurred
speech; and a red, flushed face. Officer Spiker testified that
Su was unsteady on his feet throughout the tests, for example,
swaying during the Horizontal Gaze Nystagmus test, missing
several steps and not following instructions on the Walk-and-
Turn test, and hopping about with his arms extended to balance
himself on the One-Leg Stand test. Officer Spiker then arrested
Su on suspicion of OVUII.
After Officer Spiker’s direct examination, he was excused
from the courtroom so that the district court could address the
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defense’s notices of intent. As to the first notice of intent,
the district court ruled that it would not allow defense counsel
to impeach Officer Spiker with the Kuni ADLRO proceedings,
explaining as follows:
So the court’s going to note that the court does agree with
the State in a sense that [Officer Spiker] did make the
markings. He looked at it. He -- in his testimony, he
explained why he did it. He said it was an error on his
part. He did -- he recalled he did initial a refusal. And
so based on that, the court’s going to note that he
admitted that the form was altered after giving it to her.
So while -- I guess -- well, technically, they signed the
forms. He did explain what he did and that he made an
error, and he explained it. So based on that, the court is
going to not allow counsel to cross-examine him in regard
to the ADLRO. . . .
Defense counsel registered his objection to the ruling. The
district court then went into greater detail about how it was
applying the evidence rules to the notices of intent, stating
the following:
[T]here’s a whole bunch of rules that the court has to look
at in regard to this, relevancy, 402, 404 -- . . . . 608.
[S]pecifically, for 608(b), the court has to look for
specific instances of conduct of a witness for the -- for
the purpose of attacking the witness’s credibility if
probative of untruthfulness. That’s when it can be
inquired into on cross-examination. So in light of the
fact that at the time when he was questioned about it, he
explained it and -- and -- and that -- and of that nature,
then the court is going to -- that’s why the court’s
denying it. . . .
With respect to the second notice of intent, the district
court ruled that defense counsel could not cross-examine Officer
Spiker about the Lee proceedings, rejecting defense counsel’s
assertion that Judge Kupau found Officer Spiker “not credible”
as follows:
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I don’t know that [Judge Kupau] didn’t find [Officer
Spiker’s testimony] credible. I think he just said that
the testimony didn’t make sense in light of the distances
and the time, you know. And so based on that, it does
sound -- the court doesn’t -- at no point does the court
see [Judge Kupau] say that he finds [Officer Spiker] not
credible. The court just notes that he says that the
testimony does not make sense. He thinks it’s an
impossibility to travel four to eight seconds at a speed of
35 miles an hour while he’s going 25 miles an hour 20 miles
-- 20 yards away and then to cross over for that amount of
time. It didn’t make sense to the court. . . . Officer
Spiker was very clear when he said a number of times, you
know, I’m not sure, I think it’s about this amount or this
distance. He never particularly said yes, I’m a hundred
percent sure . . . . [T]he court’s going to note that he
was trying to be honest, you know, and unfortunately, you
know, what his testimony was didn’t make sense.
Defense counsel noted his objection for the record.
With respect to the third notice of intent, the district
court ruled that defense counsel could not cross-examine Officer
Spiker about the Thomas proceedings:
THE COURT: [L]ooking at . . . what was printed, the
court’s not going to find that [Officer Spiker] lied that
-- or that he misrepresented in his police report. That
was his version of what occurred. It may not be exactly
how it all played out, but that’s what he saw. And -- the
court’s going to say that based on the photos, it’s not --
it’s not a hundred percent clear that he was lying or that
he was making something up. There was clearly some kind of
confrontation. . . .
[DEFENSE COUNSEL]: Well, I mean, I don’t know if I want to
say he’s lying, but . . . what he puts in his reports is
very inaccurate of what actually transpired. At no time in
the video do you ever see the person squaring up with
clenched fists.
. . . .
THE COURT: I only have stills. The court does not see any
clenched fist. But the court does see body language that
could indicate that he -- the defendant was squaring up
. . . .
The court doesn’t have the entire video. The court --
. . . . the pictures that the court has, I can’t see
clearly his fists. . . .
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But nevertheless, just because someone’s not in a typical
boxing stance, doesn’t mean that they’re not in a stance to
fight.
. . . .
So that’s why the court is going to deny that.
Defense counsel noted his objection for the record. After the
district court ruled on all three of the defense’s notices of
intent, cross-examination of Officer Spiker proceeded.
The district court ultimately found Su guilty of OVUII. In
issuing its ruling from the bench, the district court made a
specific finding that Officer Spiker’s testimony was credible.
As to whether Su’s driving indicated he was impaired, the
district court noted “for some reason, it seems to be that a lot
of people on mopeds seem to like to do that little ‘S’ thing,”
so that manner of operating the moped “in and of itself wasn’t a
strong indicator” of impaired driving to the district court.
However, the district court expressed its concern that Su had
crossed over into other lanes of travel and could have gotten
hurt. The district court also explained how it weighed the
officers’ testimonies as follows:
[I]n making the decision on the impairment, the court
weighs the driving with the field sobriety test so that
everyone understands that the court -- if there’s really
bad driving, the court doesn’t expect -- doesn’t need to
expect too much of a bad field sobriety test in order to
find that there was impairment. And vice versa, if the
driving wasn’t too bad, then the -- then the court would be
looking for some type of -- I guess worse type of -- or not
as doing well on the field sobriety test.
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Under the totality of the circumstances, the district court
found Su guilty. Su timely appealed.
B. ICA appeal
1. Su’s opening brief
On appeal, Su argued the district court erred by precluding
cross-examination of Officer Spiker as to his testimony in the
Kuni, Lee, and Thomas proceedings. Su’s argument on appeal
appears in two paragraphs at the end of his opening brief:
Despite having given prior notice of 3 different
instances of past untruthfulness of Officer Spiker, the
trial court did not allow cross examination of any of the
notice of intents. Absent Spiker’s testimony, the court
would not have concluded that SU was guilty.
In denying each of the Notice of Intents, it was the
court’s position that because Spiker tried to explain away
his inconsistencies at the time, they were not false. Yet,
that is what cross examination is for. The alleged
falsifications were relevant towards determining Spiker’s
credibility. The court could have given whatever weight it
wanted to the falsifications, but should have allowed cross
examination on the issues raised in the notice of intents
in order for it to do so under HRE 608(b). See State v.
Estrada, 69 Haw. 204, 219, 738 P.2d 812, 823 (1987).
Su then asked the ICA to “reverse”4 his conviction and remand his
case for a new trial, as the cumulative effect of any individual
errors warranted a new trial.
2. The State’s answering brief
The State first noted that HRE Rule 608(b) “allows cross-
examination of a witness concerning specific instances of
4 Under Hawaiʻi Rules of Appellate Procedure Rule 35(e) (2010), “[w]hen
used in an opinion or dispositional order, the word ‘reverse’ ends litigation
on the merits, and the phrase ‘vacate and remand’ indicates the litigation
continues in the court or agency in accordance with the appellate court’s
instruction.” Su’s opening brief appears to have requested that the ICA
vacate and remand the district court’s judgment.
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conduct that are relevant to the trait of credibility” and
“governs attack of a witness by revelation of that witness’
relevant misdeeds,” quoting the Supplemental Commentary to HRE
Rule 608. The State argued that the district court did not
abuse its discretion in disallowing cross-examination of Officer
Spiker concerning the Kuni, Lee, and Thomas proceedings. First,
with respect to the Kuni proceedings, the State argued that the
Kuni transcripts showed that Officer Spiker “made a mistake as
opposed to showing that Officer Spiker was untruthful.” Second,
with respect to the Lee proceedings, the State pointed out that
the transcripts do not bear out any express finding by Judge
Kupau that Officer Spiker was “uncredible”; rather, Judge Kupau
found Officer Spiker’s testimony concerning distances and speeds
did not make physical sense. Third, with respect to the Thomas
proceedings, the State argued that defense counsel had not put
the video-recording into evidence at Su’s trial5; therefore,
there was no basis to argue that the video-recording would
demonstrate Officer Spiker’s untruthfulness. Further, the State
pointed out that Su’s counsel himself argued that Officer Spiker
may not necessarily be untruthful, as follows: “Well, I mean, I
don’t know if I want to say [Officer Spiker is] lying, but . . .
5 The State did not appear to acknowledge Su’s counsel’s assertion in his
Notice of Intent #3 that the prosecution had destroyed the Thomas video-
recording.
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what he puts in his report is very inaccurate of what actually
transpired.”
3. The ICA’s summary disposition order
The ICA affirmed the district court’s judgment in an SDO.
Su, SDO at 1. The ICA stated it “d[id] not disagree” with the
district court’s finding that “each instance did not constitute
examples of untruthfulness under HRE Rule 608(b).” Su, SDO at
5. As to the first instance, the ICA concluded, “The transcript
of ADLRO proceedings submitted by Su reflected that Officer
Spiker had been shown the Notice of Revocation form, which he
acknowledged he marked after making copies and that he made a
mistake and did not follow his normal procedure.” Id. The ICA
footnoted the fact that neither the purportedly inconsistent
ADLRO forms, nor further transcripts in the Kuni proceedings
about the purportedly inconsistent ADLRO forms, were entered
into the record with Su’s first notice of intent. Su, SDO at 3
n.2.
As to the second instance, the ICA concluded, “The
transcript of Officer Spiker’s testimony in the Lee case showed
that he testified as to estimates of distance and speed and that
he was not certain of these numbers.” Su, SDO at 5.
As to the third instance, the ICA concluded, “Finally,
although the screen shots of the surveillance videos in the
Thomas case did not depict, for example, the clenched fist or a
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classic fighting stance that Officer Spiker maintained Thomas
displayed during the incident, neither the screen shots nor the
video recordings themselves purported to be a complete
documentation of the incident.” Su, SDO at 5-6. The ICA
considered each of the instances to be “fairly . . .
characterized as mistakes, inaccuracies in memory or differences
in interpretations of another’s actions.” Su, SDO at 5.
The ICA went on to observe the following:
Furthermore, the District Court, having consolidated the
hearing on the Notices of Intent with trial was able to
review all the materials included in those Notices and the
additional exhibits presented, and had “in its possession
sufficient information to appraise the biases and
motivations of the witness” and did not abuse its
discretion by preventing further cross-examination of
Officer Spiker on these incidents.
Su, SDO at 6 (citing State v. Sabog, 108 Hawaiʻi 102, 107, 117
P.3d 834, 839 (App. 2005)).
C. Certiorari proceedings
On certiorari, Su argues that the ICA erred in ruling that
the district court properly precluded cross-examination of
Officer Spiker about the Kuni, Lee, and Thomas proceedings.
Before this court, Su repeats, verbatim, the two-paragraph
argument made before the ICA. Su further argues that the ICA
erred in “agree[ing] with the [district] court that because
Spiker tried to explain [the purported discrepancy between Kuni
ADLRO forms] away in another proceeding, he had already been
questioned about the form and explained it.” As to the notices
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of intent involving the Lee and Thomas proceedings, Su merely
states that he had shown prima facie evidence of untruthfulness
on the part of Officer Spiker in these other proceedings;
therefore, the ICA erred in concluding that the district court
did not abuse its discretion in disallowing cross-examination
about Officer Spiker’s testimony in those proceedings.
Su also criticizes the ICA’s SDO for stating, “Furthermore,
the District Court, having consolidated the hearings on the
Notices of Intent with trial was able to review all the
materials included in those Notices and the additional exhibits
presented, and had ‘in its possession sufficient information to
appraise the biases and motivations of the witness’ and did not
abuse its discretion by preventing further cross-examination of
Officer Spiker on these incidents.” Su, SDO at 6 (citing Sabog,
108 Hawaiʻi at 107, 117 P.3d at 839). Su contends that the
district court excluded the evidence; therefore, it could not
have appraised the biases and motivations of Officer Spiker
using that evidence. Su argues that limiting his cross-
examination of Officer Spiker was not harmless error, because
the district court “ruled[6] that absen[t] Spiker’s testimony,
she would not have concluded that SU was guilty.”
6 The district court made no such ruling. It stated that it balanced
Officer Cadena’s testimony concerning Su’s manner of driving with Officer
Spiker’s testimony concerning Su’s performance on the standardized field
sobriety tests to determine Su operated his moped while impaired; both
(continued. . .)
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The State’s Response does not engage with the merits of
Su’s arguments; rather, the State contends that Su’s application
merely re-litigates his ICA appeal.
III. Standard of review
[D]ifferent standards of review must be applied to trial
court decisions regarding the admissibility of evidence,
depending on the requirements of the particular rule of
evidence at issue. When application of a particular
evidentiary rule can yield only one correct result, the
proper standard for appellate review is the right/wrong
standard. However, the traditional abuse of discretion
standard should be applied in the case of those rules of
evidence that require a “judgment call” on the part of the
trial court.
Kealoha v. Cty. of Hawaiʻi, 74 Haw. 308, 319-20, 844 P.2d 670,
676 (1993). An abuse of discretion occurs where the trial court
“clearly exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant.” State v. Kupihea, 80 Hawaiʻi 307, 312, 909 P.2d
1122, 1127 (1996).
IV. Discussion
Defense counsel sought to impeach Officer Spiker through
cross-examining him then introducing extrinsic evidence
regarding his testimony in Kuni, Lee, and Thomas under HRE Rule
608(b), which allows the credibility of a witness to be attacked
using “[s]pecific instances of conduct” that are “probative of
(continued. . .)
officers testified that Su smelled of alcohol and had red, watery, glassy
eyes. Officer Cadena’s testimony provides substantial evidence supporting
Su’s OVUII conviction.
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untruthfulness.” The relevant portion of HRE Rule 608(b) states
the following:
Specific instances of conduct. Specific instances of the
conduct of a witness, for the purpose of attacking the
witness’ credibility, if probative of untruthfulness, may
be inquired into on cross-examination of the witness and,
in the discretion of the court, may be proved by extrinsic
evidence. . . .
The original Commentary to HRE Rule 608(b) states that this
subsection “allows cross-examination of the witness relative to
specific collateral conduct to the extent that such conduct is
relevant to veracity.”7 (Emphasis added.) The Supplemental
Commentary goes on to state that the intent of the rule is “to
invest the trial judge with discretion to admit the extrinsic
evidence in such a case, assuming the witness is confronted on
cross-examination and denies the material.”
Professor Bowman explains that HRE Rule 608(b) governs
misbehavior other than criminal convictions, which are governed
7 The 1992 Supplemental Commentary to HRE Rule 608(b) states that the
rule “allows cross-examination of a witness concerning specific instances of
conduct that are relevant to the “trait of credibility.” (Emphasis added.)
This reference to the word “trait” here should not confuse HRE Rule 608(b)
with HRE Rule 608(a), which generally covers the “character trait” of
truthfulness or untruthfulness. HRE Rule 608(a) provides:
(a) Opinion and reputation evidence of character. The
credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject
to these limitations:
(1) The evidence may refer only to character for
truthfulness or untruthfulness, and
(2) Evidence of truthful character is admissible only after
the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
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by HRE Rule 609. Addison M. Bowman, Hawaii Rules of Evidence
Manual § 608-2[1][A] at 6-42 (2018–2019 ed.) (“Bowman”). Bowman
provides examples of the kinds of conduct we have deemed
admissible under HRE Rule 608(b), which includes conduct
regarding lies and falsifications. Bowman, § 608-2[1][B] at
6-42-43 (citing, e.g., In re Estate of Herbert, 90 Hawaiʻi 443,
465, 979 P.2d 39, 61 (1999) (misrepresentation to probate court
in application for probate of will and to administer decedent’s
estate), and Cozine v. Hawaiian Catamaran, Ltd., 49 Haw. 77, 412
P.2d 669 (1966) (false affidavit)). As further explained in
Bowman, “[t]he primary factor [in determining admissibility
under HRE Rule 608(b)] is the relevance of the proffered
impeaching material to affect the witness’ credibility.”
Bowman, § 608-2[1][C] at 6-43.
In examining the ICA’s SDO, it is unclear what standard was
used to review the trial court’s admissibility determination.
The ICA stated that it “d[id] not disagree” with the trial court
that the Kuni, Lee, and Thomas proceedings “did not constitute
examples of untruthfulness under HRE Rule 608(b).” Su, SDO at
5. It then concluded that the district court “did not abuse its
discretion by preventing further cross-examination of Officer
Spiker on these incidents.” Su, SDO at 6.
We take this opportunity to clarify that, under the plain
language of HRE Rule 608(b), admissibility of evidence under HRE
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Rule 608(b) involves a two-step inquiry: (1) whether the
specific conduct evidence proffered for the purpose of attacking
the witness’s credibility is probative of untruthfulness, and,
if so, (2) whether the probative value of the evidence of the
specific conduct 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 pursuant to HRE
Rule 403. An appellate court reviews the trial court’s two-step
admissibility determination under the right/wrong standard as to
the first step, and under the abuse of discretion standard as to
the second step.
Thus, under the first step, a witness may generally be
cross-examined8 about specific instances of conduct relevant to
8 However, when the “witness” is a defendant in a criminal case, allowing
cross-examination about specific instances of conduct probative of
untruthfulness may not survive an HRE Rule 403 balancing test because they
are more prejudicial than probative. State v. Culkin, 97 Hawaiʻi 206, 35 P.3d
233 (2001), provides an instructive example. In that case, the prosecution
filed a notice of intent to confront the defendant with evidence of using
another individual’s name to open a checking account and rent a house. 97
Hawaiʻi at 219, 35 P.3d at 246. Several other false identification cards were
discovered in the search of the house. Id. The defense argued admission of
that evidence would be prejudicial because of the defendant’s upcoming
forgery trial stemming from his use of false identification in the other
individual’s name to open a bank account and rent a house. Id. Before
trial, the circuit court ruled that if the defendant took the stand, the
prosecution could question him about using the other individual’s name to
open a bank account and rent a house, but it could not cross-examine him
about the other false identification cards. 97 Hawaiʻi at 219-20, 35 P.3d at
246-47. The defendant took the stand and testified that he only posed for
the picture for the false identification in the other individual’s name but
did, in fact, open up a bank account and rent a house under that name. 97
Hawaiʻi at 220, 35 P.3d at 247. The circuit court allowed cross-examination
as to the other false identification cards, then the defendant exercised his
(continued. . .)
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credibility, if probative of untruthfulness. A trial court’s
decision to allow or preclude cross-examination on specific
instances of conduct, based upon relevance under HRE Rules 401
and 402,9 is thus reviewed under the right/wrong standard.
An example of the erroneous admission of irrelevant
specific instances of conduct occurred in State v. Stanley, 110
Hawaiʻi 116, 129 P.3d 1144 (App. 2005). There, the ICA concluded
that the trial court erred in allowing defense counsel to cross-
examine the complaining witness about instances in which the
complaining witness stuck his middle finger at the defendant, as
such conduct was not for the purpose of attacking the witness’s
credibility under HRE Rule 608(b) and “had nothing to do with
dishonesty.” 110 Hawaii at 128, 129 P.3d at 1156.
(continued. . .)
right against self-incrimination as to that line of questioning. Id. We
initially held that the “possession of false identification cards, and
assorted activities undertaken therewith, were probative of untruthfulness.”
97 Hawaiʻi at 221, 35 P.3d at 248. We then noted the unfair prejudice
engendered by compelling the defendant to assert his fifth amendment
privilege in front of the jury. Id. We went on to hold that “under the
circumstances of this case, the circuit court abused its discretion in
permitting the prosecution to cross-examine [the defendant] about multiple
false identification cards discovered at his house with foreknowledge that
[the defendant] intended to invoke his fifth amendment privilege if
questioned about them” because he had an upcoming trial on a forgery charge
involving the false identification cards. 97 Hawaiʻi at 211, 219, 35 P.3d at
238, 246.
9 HRE Rule 401 provides, “‘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 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.”
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An example of the erroneous preclusion of relevant specific
instances of conduct occurred in State v. Estrada, 69 Haw. 204,
738 P.2d 812 (1987). In that case, defense counsel sought to
cross-examine a complaining witness Maui Police Department
(“MPD”) police officer, Officer Taguma, alleging that a
confidential HPD internal affairs division (“IAD”) file would
reveal that the officer lied in his application for employment
with MPD. 69 Haw. at 211, 738 P.2d at 818. The circuit court
in that case reviewed the IAD file in camera, ruled it
irrelevant, and sealed it, without the prosecutor or defense
counsel ever viewing the file. 69 Haw. at 211, 738 P.2d at 818.
This court concluded that Officer Taguma’s “alleged
falsifications [on his application for employment with MPD] were
relevant towards a determination of his credibility” and “should
have been admitted under the guidelines established in HRE Rule
608(b).” 69 Haw. at 219, 738 P.2d at 823. We added that the
finder of fact “should possess all relevant evidence” concerning
the falsifications, and that it was “for the [finder of fact] to
decide how much weight to give the falsifications.” Id.
Once confronted on cross-examination with specific
instances of conduct probative of untruthfulness, the witness
may either admit or deny the misdeed. We then turn to the
second step of the HRE Rule 608(b) analysis with respect to the
admission of extrinsic evidence regarding the specific instance
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of conduct. Even when the witness admits the misdeed, pursuant
to the plain language of HRE Rule 608(b), the court has
discretion to permit or exclude extrinsic evidence of the
misbehavior. The admission of extrinsic evidence is subject to
the trial court’s balancing of the probative value of that
evidence against 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, under HRE Rule 403.10 The trial court’s
ruling on the admission of extrinsic evidence is thus reviewed
for an abuse of discretion.
Applying the two-step analysis to this case, we note that
the district court stopped at the first step of the HRE Rule
608(b) analysis, concluding that none of the three specific
instances of conduct were relevant and probative of Officer
Spiker’s untruthfulness. The ICA generally agreed. In
reviewing this determination de novo, we conclude that the
district court erred in finding that the Kuni and Thomas
proceedings were not probative of Officer Spiker’s credibility.
As to the Lee proceeding, the district court correctly found the
10 HRE Rule 403 provides, “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.”
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proffered evidence not relevant to, and probative of, Officer
Spiker’s untruthfulness.
The district court erred in precluding defense counsel from
cross-examining Officer Spiker as to the Kuni ADLRO proceedings
because it was a specific instance of conduct clearly relevant
to Officer Spiker’s credibility that was probative of
untruthfulness. The transcripts of the Kuni proceedings show
that Officer Spiker submitted a license revocation form to
ADLRO, which he signed, swearing and affirming that it was the
same form he gave to the defendant, Kuni. On cross-examination,
he admitted that he altered the form after having given it to
Kuni and before submitting it to ADLRO. The following
transcript shows that Officer Spiker submitted a falsely sworn
statement to ADLRO:
ATTORNEY BURK: [counsel for Kuni]: Okay. So the form that
you issued, the form that you issued to Ms. Kuni is in fact
not the form that you provided to the ADLRO? It is not
identical to the one you provided to ADLRO?
OFFICER SPIKER: Yes.
ATTORNEY BURK: Okay. And the form that you issued or gave
to the A[D]LRO, handed in to the ADLRO you had altered the
form after giving it to Ms. Kuni, correct?
OFFICER SPIKER: I believe so, yes.
ATTORNEY BURK: Explain, if you have an explanation, or if
you recall.
OFFICER SPIKER: I can’t recall why I did that because
normally I normally check it off and then make the copies
but I can’t recall why, I know she initialed everything
that she refused. I just made an error on my part. As I
recall she did initial a refusal. . . I guess it is just
-–
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ATTORNEY BURK: But whenever, on the form when you swear
and affirm that you handed that form to her, that is not in
fact true then, correct?
OFFICER SPIKER: Yes, in this instance, yes, not true.
ATTORNEY BURK: Thank you. No further questions.
(Emphases added.)
A law enforcement officer’s credibility is clearly called
into question where he admits to submitting a falsely sworn
document in an administrative proceeding due to a departure from
his usual practice. Therefore, the district court erred in
precluding cross-examination of Officer Spiker on the Kuni ADLRO
proceedings. We also cannot say that such error was harmless
beyond a reasonable doubt, as the outcome of Su’s trial hinged
upon the credibility of the two HPD witnesses against him. See
State v. Pond, 118 Hawaiʻi 452, 469, 193 P.3d 368, 385 (2008)
(holding trial court’s preclusion of defendant’s cross-
examination of complaining witnesses as to her marijuana use was
not harmless beyond a reasonable doubt because there was a
reasonable possibility of a different trial outcome had the
factfinders been able to judge the credibility of the
complaining witness upon cross-examination). Thus, on this
basis, Su’s conviction must be vacated.
With respect to the Thomas proceedings, the still
photographs of the video-recording apparently show that,
contrary to Officer Spiker’s police report and trial testimony,
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Thomas did not have his fists clenched and was not throwing
punches. Thus, the Thomas proceedings were relevant to Officer
Spiker’s credibility and probative of untruthfulness.
With regard to the Lee proceedings, the trial court simply
rejected Officer Spiker’s estimates of distance and speed as
“not mak[ing] sense,” as related below:
Looking in the light most favorable to State and resting
slowly upon the testimony of Officer Spiker at this point
in time, the Court agrees with defense counsel. Officer
Spiker’s testimony simply does not make sense as he was --
he testified that she crossed the double solid line three
to five yards, which is nine to fifteen feet, at
approximately 20 yards away from him in the opposite
direction.
And if she was going the speed limit, and even if he
was going at 25 miles an hour, within seconds that places
her not only in the direct lane oncoming Officer Spiker,
but at 15 feet at his outside estimate would place her in
the -- partially the middle lane. So and in the event at
that speed and if we listen to Officer Spiker and that she
was at that distance for four to eight seconds simply
doesn’t make physical sense.
As a result, the Court cannot take his testimony and
grants the motion for judgment of acquittal.
Indeed, in the Lee case, Officer Spiker conceded on cross-
examination that he was “estimating,” “c[ould]n’t speculate” as
to his speed, and “c[ould]n’t recall” Lee’s speed. Thus, the
district court did not err in disallowing use of this evidence
in cross-examining Officer Spiker. The proffered evidence was
not relevant to Officer Spiker’s credibility and was therefore
inadmissible under HRE Rule 608(b).
Thus, on remand, based on the first step of the HRE Rule
608(b) analysis, Su is entitled to cross-examine Officer Spiker
as to the Kuni and Thomas matters. The extent of the cross-
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examination, as well as the admissibility of extrinsic evidence,
if offered, is subject to an HRE Rule 403 analysis.
Lastly, we address the ICA’s statement that the district
court “had ‘in its possession sufficient information to appraise
the biases and motivations of the witness’ and did not abuse its
discretion by preventing further cross-examination of Officer
Spiker” concerning his testimony in the Kuni, Lee, and Thomas
proceedings. Su, SDO at 6. To the extent the ICA suggests that
the district court reached its judgment by taking into account
evidence it had excluded, such suggestion is wrong. It is “well
established that a judge [in a bench trial] is presumed not to
be influenced by incompetent evidence.” State v. Vliet, 91
Hawaiʻi 288, 298, 983 P.2d 189, 199 (1999).
V. Conclusion
For the foregoing reasons, we vacate the ICA’s July 2, 2019
Judgment on Appeal, as well as the district court’s August 2,
2018 Judgment. This case is remanded to the district court for
further proceedings consistent with this opinion.
Jonathan Burge /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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