State v. Alkire.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
25-JUN-2020
08:01 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

LISA E. ALKIRE,
Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1DTA-16-03825)

JUNE 25, 2020

McKENNA, POLLACK, AND WILSON, JJ., WITH
NAKAYAMA, J., DISSENTING AS TO SECTION IV.A.,
WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This certiorari proceeding arises out of Lisa E. Alkire’s

(“Alkire”) conviction for the offense of operating a vehicle

under the influence of an intoxicant (“OVUII”) in violation of
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Hawaiʻi Revised Statutes (“HRS”) § 291E-61(a)(1) (Supp. 2014) on

Likelike Highway in the early morning hours of October 15, 2016.

Alkire raises four questions in her application for writ of

certiorari, which challenges the Intermediate Court of Appeals’

(“ICA”) January 24, 2019 summary disposition order (“SDO”). The

ICA’s SDO affirmed the District Court of the First Circuit’s

(“district court”) August 30, 2017 judgment.1

The four questions raised on certiorari are:

I. As a matter of first impression, did the ICA gravely err
in finding that the Tachibana admonishment was sufficient
where Petitioner was not informed of her right to testify
in her consolidated suppression hearing without that
testimony being used to determine guilt or innocence and/or
where the court specifically declined to inform Petitioner
of her right to remain silent?

II. As a matter of first impression, did the ICA gravely
err in rejecting Petitioner’s HRPP, Rule 48 and/or
constitutional speedy trial challenges, where the trial
“commenced” with one state witness but was subsequently
continued for eight months at no fault of Petitioner?

III. Did the ICA gravely err in holding that HRPP Rule 16
usurps United States Supreme Court precedent that requires
individual prosecutors to obtain and disclose impeachment
materials rather than merely relying on representations of
the police to determine whether and what materials should
be disclosed to Defendants?

IV. Did the ICA gravely err in finding that discovery,
requested for its potential exculpatory value, was not
material because the evidence of guilt was “overwhelming”
and/or in affirming the conviction where Ms. Alkire was
deprived of an opportunity to establish an appropriate
record as to the existence of the video?

1 The Honorable James H. Ashford presided.

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The first question on certiorari was resolved through our

opinion in State v. Chang, 144 Hawaiʻi 535, 445 P.3d 116 (2019).2

With respect to the second question on certiorari, we adopt

the California Supreme Court’s reasoning in Rhinehart v.

Municipal Court, 677 P.2d 1206, 1211-12 (Cal. 1984), and hold

that, in order to effectuate its intent, Hawaiʻi Rules of Penal

Procedure (“HRPP”) Rule 48 (2000) requires a “meaningful”

commencement of trial. A trial is “meaningfully” commenced when

a trial court reasonably commits its resources to the trial. As

this is a “new rule,” it will only apply prospectively to events

occurring after publication of this decision, i.e., to trials

that commence after the date of this opinion.3

With respect to the third question on certiorari, we hold

that, under the circumstances of this case, the prosecutor was

not required to personally review files of the testifying police

officers.

As to the fourth question on certiorari, we hold that

because the video recording showing Alkire at the police station

2 In Chang, we noted that because the defendant had the right to testify
for the purpose of his motion to suppress without having that testimony used
against him at trial, it was essential that the defendant be informed of
those rights in order to ensure that his decision on whether to testify at
the suppression hearing was knowingly and intelligently made. 144 Hawaiʻi at
545, 445 P.3d at 126. Overruling State v. Texeira, 62 Haw. 44, 609 P.2d 131
(1980), we also prospectively held that trial courts could no longer
consolidate a motion to suppress hearing with a trial. 144 Hawaiʻi at 546,
445 P.3d at 127. We therefore need not further address this issue.

3 See also infra note 8.

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after her arrest was material to Alkire’s defense and her

request was reasonable, the district court abused its discretion

in denying her motion to compel. We set out additional

parameters the district court must consider. Although the

district court may not reach this issue, we also hold that the

permissive adverse inference rule, which allows a trier of fact

to draw an adverse inference that lost or destroyed evidence was

unfavorable to the spoliator, also applies in criminal cases.

Accordingly, we vacate the ICA’s February 25, 2019 judgment

on appeal, which affirmed the district court’s August 30, 2017

judgment, and we remand the case to the district court for

further proceedings consistent with this opinion.

II. Background

A. Arrest, request to preserve evidence, and charge

In the early morning of October 15, 2016, Alkire was

stopped while driving northbound on Likelike Highway after a

Honolulu Police Department (“HPD”) officer (“patrol officer”)

observed her swerve from the traffic lane into the shoulder lane

three times. Alkire was later placed under arrest for OVUII and

transported to the police station.

On October 20, 2016, Alkire’s counsel faxed a five-page,

single-spaced letter (“request to preserve”) to the HPD Central

Receiving Division (“Central Receiving”). In the letter,

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Alkire’s counsel specifically requested that the following

information be preserved:

[A]ny and all video or audio recordings that may contain
evidence of this case . . . (or records of such footage)
from any video, audio or traffic cameras maintained,
operated, controlled, leased, or accessible by the . . .
Honolulu Police Department, . . . Department of the
Prosecuting Attorney and/or any other government entity or
sub-department, semi-autonomous or any other department,
that may pertain to this incident . . . . This request also
specifically includes, but is not limited to, any and all
recordings, captured in whatever manner, of this Defendant
by police department employees or contractors whether at
the police station, from any in-car recording devices,
and/or video or audio recording devices.

The request listed Alkire’s identifying information, the date of

arrest, citation number, and state ID booking number. Alkire’s

counsel also emailed the request to preserve to the Department

of the Prosecuting Attorney for the City and County of Honolulu

(“prosecutor’s office”). The following day, Alkire’s counsel

faxed to Central Receiving an addendum to the October 20, 2016

request to preserve, which specifically requested that the video

from the Kalihi Police Station be preserved. Alkire’s counsel

also emailed the addendum to the prosecutor’s office and mailed

physical copies of both the request to preserve and the addendum

to HPD Headquarters (“Headquarters”), Central Receiving, and the

prosecutor’s office.

On November 1, 2016, the State filed a complaint charging

Alkire with one count of OVUII in violation of HRS § 291E-

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61(a)(1) and/or (a)(3).4

B. District court proceedings relevant to issues on certiorari

1. Motion to compel officer files

On December 5, 2016, Alkire filed a motion to compel files

of the police officers the State intended to call as witnesses

(“motion to compel officer files”). Alkire requested that (1)

the State produce the personnel files of the officers involved

in Alkire’s case (and any other documentation regarding the

officers’ misconduct); and (2) that the prosecutor “be required

to review the files of its witnesses to determine whether

impeachment materials exist and not shift that burden to police

or non-lawyer bureaucrats,” as purportedly required by Brady v.

Maryland, 373 U.S. 83 (1963) (suppression of evidence favorable

to the accused violates due process where the evidence is

material to guilt or punishment, regardless of the good faith

or bad faith of the prosecution), and United States v. Bagley,

4 HRS § 291E-61(a) (Supp. 2014) provides in relevant part,

(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person’s normal
mental faculties or ability to care for the
person and guard against casualty;

. . . .

(3) With .08 or more grams of alcohol per two
hundred ten liters of breath[.]

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473 U.S. 667 (1985) (a prosecutor’s failure to disclose evidence

favorable to the accused constitutes reversible error when the

suppressed evidence might have affected the outcome of the

trial).

2. Motion to compel video recording

On January 6, 2017, Alkire filed a motion to compel

production of the video recording showing her at the police

station after her arrest (“motion to compel video recording”).

Alkire indicated she had been under surveillance at the Kalihi

Police Station after her arrest, and that she had sent the

request to preserve a few days after her arrest and “well within

the time that the video footage was maintained” to the HPD and

to the prosecutor’s office.

Alkire attached to her motion the request to preserve and

the addendum, which had been sent to Headquarters, Central

Receiving, and the prosecutor’s office. Alkire also attached a

transcript of statements by HPD Police Sergeant Barry Tong (“Sgt.

Tong”) at one of defense counsel’s previous hearings involving

another OVUII defendant. Sgt. Tong, who worked at Central

Receiving, had explained HPD practice for retaining video

surveillance footage:

SGT. TONG: In response to [defense counsel’s] request
for video surveillance from our detention facility on the
date that [redacted] was arrested, unless we actually had a
subpoena of some sort within 20 to 25 days –- that is
usually when the –- the video recording is written over.
THE COURT: Okay.

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SGT. TONG: So it’s not destroyed; it’s just written
over.
THE COURT: Okay. So I think what you’re saying –-
tell me if I’m correct.
You’re saying that the normal course of events is
after 20 to 25 days existing material is re –- is recorded
over?
SGT. TONG: Correct. With our current system, yes,
sir.

Additionally, Sgt. Tong had testified that future requests to

preserve evidence should be sent to the Central Receiving and

that either he or one of his officers “will go through its

proper channels . . . to preserve the information.”

In addition, Alkire attached (1) a copy of the HPD policy

requiring video monitoring of all detainees in holding cells and

(2) a letter from Sgt. Tong regarding a discovery request for

another case, stating that (a) video recordings from the

District 5 Kalihi Police Station “exist[s] for a period of 30

days after the day and time it was recorded;” and (b) “cameras

at the District 5 Kalihi Police Station are positioned to get

maximum viewing angle of the exterior of the police station and

all access points to the station[]” and also provide

“surveillance viewing of the adult and juvenile processing and

cellblock areas.”

Alkire also represented that, as of January 6, 2017, the

State had not responded to her request, and that the video

recording had not been provided in the State’s January 5, 2017

disclosure. Alkire argued that her constitutional rights

entitled her to access this video footage. Alkire argued that

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this video footage was “an ‘essential ingredient’ to demonstrate

to [the district court] the Defendant’s version of the facts,

i.e., that Defendant was not impaired and that the purported

indicia of impairment simply were not present.”

Alkire further contended that even if her constitutional

rights were not implicated, under HRPP Rule 16 (2012),5 her

5 HRPP Rule 16 provides in relevant part:

(a) Applicability. Subject to subsection (d) of this rule,
discovery under this rule may be obtained in and is limited
to cases in which the defendant is charged with a felony,
and may commence upon the filing in circuit court of an
indictment, an information, or a complaint.

(b) Disclosure by the prosecution.

(1) Disclosure of matters within prosecution’s
possession. The prosecutor shall disclose to the
defendant or the defendant’s attorney the following
material and information within the prosecutor’s
possession or control:

. . . .

(vii) any material or information which tends
to negate the guilt of the defendant as to the
offense charged or would tend to reduce the
defendant’s punishment therefor.

(2) Disclosure of matters not within prosecution’s
possession. Upon written request of defense counsel
and specific designation by defense counsel of
material or information which would be discoverable
if in the possession or control of the prosecutor and
which is in the possession or control of other
governmental personnel, the prosecutor shall use
diligent good faith efforts to cause such material or
information to be made available to defense counsel;
and if the prosecutor’s efforts are unsuccessful the
court shall issue suitable subpoenas or orders to
cause such material or information to be made
available to defense counsel.

. . . .

(continued . . .)

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request for the video footage was both “reasonable” and

“material.” Finally, Alkire argued that if the video footage

had been destroyed despite her request that the footage be

preserved, her case should be dismissed.

On January 9, 2017, the State filed a memorandum in

opposition. The State argued that pursuant to HRPP Rule 16,

discovery in misdemeanor cases is allowed “only if defendant

makes a showing of materiality and if defendant’s request is

reasonable.” The State argued that Alkire was requesting the

video recordings “with no good faith basis” and that her request

was in the nature of a “fishing expedition.” The State

contended that any surveillance video would not be material

because Alkire arrived at the Kalihi Police Station nearly forty

minutes after the initial car stop and it was speculative that

the video would show the signs and symptoms of possible

impairment that the officers had observed earlier.

(. . . continued)
(d) Discretionary Disclosure. Upon a showing of
materiality and if the request is reasonable, the court
in its discretion may require disclosure as provided for
in this Rule 16 in cases other than those in which the
defendant is charged with a felony, but not in cases
involving violations.

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3. January 10, 2017 proceedings

a. Pretrial matters

On the afternoon of January 10, 2017, Alkire’s case was

called, and before starting trial, the district court addressed

Alkire’s motions to compel officer files and the video recording.

The district court asked the State whether it was in possession

or control of any potentially exculpatory or sentence-reducing

information that had not yet been turned over to the defense.

The State responded that it was not. The State further stated:

And I can put on the record, Your Honor, that in regards to
this matter, we did –- we are not aware of any exculpatory
evidence as I’ve already indicated, however, we also did
make affirmative inquiries on –- into both of these
officers, both to HPC [Honolulu Police Commission] and HPD,
and in each case we were told that there are no records re
–- or on either officer. And from HPC, Your Honor, from
the commission we received that response November 30th and
from HPD rather we received that response November 28th.
So as of that time, Your Honor, not only do we not have any
information, but we have made affirmative checks and found
nothing to turn over.

At defense counsel’s request, the State clarified that it had

made standard requests for information pertaining to the

witnesses’ truth or veracity and argued it therefore met its

burden under Brady and its progeny to disclose exculpatory

evidence. The district court then denied Alkire’s motion to

compel officer files.

With respect to the motion to compel video recording,

Alkire argued that, based on HPD policy and Sgt. Tong’s

testimony, a video should exist and that it was material because

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the alleged indicia of impairment should have been observable

when Alkire arrived at the Kalihi Police Station. The district

court denied this motion also, on the grounds Alkire had not

shown that a video recording of her actually existed, or, if it

existed, that it was material.

b. Patrol officer’s testimony

After both the State and defense waived opening statements,

the State called its first witness, the patrol officer, who

testified as follows.

While driving north on Likelike Highway on October 15, 2016,

he observed a red Jeep suddenly veer into the right shoulder,

veer back into the driving lane, and veer into the right

shoulder again. After observing the Jeep veer into the shoulder

a third time “just slightly,” he decided to stop the vehicle.

After approaching Alkire, who was seated in the Jeep while he

stood two feet away from it, he smelled a strong odor of alcohol

emanating from her.

c. Trial continuance

Following cross-examination, the patrol officer was excused.

The court and the parties briefly went off, then came back on

the record. Although the record states Alkire’s counsel agreed

to continue trial to March 16, 2017, it appears the continuance

was due to chronic court congestion.

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4. March 16, 2017 proceedings

On March 16, 2017, the State called to the stand the HPD

officer who conducted a standardized field sobriety test

(“SFST”) on Alkire (“SFST officer”). He testified in relevant

part as follows.

When he arrived on the scene, the patrol officer told him

that Alkire was possibly under the influence of an intoxicant

and asked him to administer a SFST. When the SFST officer

approached the vehicle, Alkire was seated in the driver’s seat.

He observed that “[s]he had some redness and watery –- watery

eyes. And from outside the window, I could smell an odor of an

alcoholic-type beverage coming from her person.”

Alkire then consented to the SFST. After it was

administered, Alkire was arrested and transported to the Kalihi

Police Station.

The district court then interrupted the SFST officer’s

testimony and asked him to leave the courtroom so he could

discuss with counsel how they wished to proceed, considering

that the officer was not likely to finish his testimony that day.

The district court stated it wanted to give defense counsel some

time to cross-examine the SFST officer that day, stating:

Because by the time we continue this -- because it doesn’t
look like we’re going to finish, is my guess, today. I
don’t want memory to be kicking in if we have another six
or eight weeks of delay.

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Further, the district court stated that it was not allowing the

State “to pursue the (a)(3) [violation] if you don’t have your

necessary evidence today.”6 Defense counsel then stated that he

wanted to get transcripts to finish his cross-examination.

The SFST officer was called back into the courtroom and the

State’s direct examination continued. The officer clarified

that Alkire’s arrest was based on “[his] observations of

[Alkire] in the driver’s seat, coming out, and then the

performance of the standardized field sobriety test[,]” as well

as the odor of alcohol coming from her.

Defense counsel then began cross-examination. After a few

questions, the district court interrupted and stated that the

trial would be continued to a later date. Defense counsel

requested that the district court allow him “some time . . . to

get the transcript” prior to the next day of trial and that,

based on his past experience, a six-week continuance would

likely not be sufficient. The State objected, arguing that if

defense counsel was “concerned about memory, it’s very, very

easy to obtain audio of this . . . hearing.” The district court

agreed that defense counsel could obtain an audio CD promptly

6 This was in reference to HRS § 291E-61(a)(3), which prohibits operating
a vehicle “[w]ith .08 or more grams of alcohol per two hundred ten liters of
breath[.]” As in Alkire’s case, defendants arrested for OVUII after being
pulled over are often charged with OVUII under both HRS § 291E-61(a)(1),
which prohibits operating a vehicle “[w]hile under the influence of alcohol
in an amount sufficient to impair the person’s normal mental faculties or
ability to care for the person and guard against casualty” as well as HRS §
291E-61(a)(3). See supra text accompanying note 4.

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and noted that “transcripts often take several months,” which

would only exacerbate potential memory issues. Thus, the

district court declined the defense request for a delay to

obtain the transcript.

The district court then inquired whether the SFST officer

would have any scheduling issues in the next three months. The

officer indicated the month of April would not work for him due

to a significant personal family issue, and that he probably

would not be available until the second half of May or until

June. Alkire indicated a preference for an afternoon trial time.

The district court stated the first date it would be available

would be the afternoon of June 8th, and trial was continued

until that date.

5. June 8, 2017

On June 8, 2017, the defense and the prosecutor, with her

witnesses, appeared for trial. Unbeknownst to the parties,

however, the district court had entered an order on May 19, 2017

stating that “[t]his matter, currently scheduled for further

trial on June 8, 2017, at 1:30 p.m., is hereby rescheduled for

status/no witnesses at 8:30 a.m. on August 2, 2017[.]” On June

23, 2017, another order was filed by the district court, stating

that “[f]urther trial of this matter is hereby rescheduled to

August 4, 2017 at 8:30 a.m.” and “[t]he previously scheduled

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status/no witnesses at 8:30 a.m. on August 2, 2017, is hereby

cancelled.”

6. Motion to dismiss

On July 21, 2017, Alkire filed a motion to dismiss,

claiming the State had violated her constitutional right to a

speedy trial and/or HRPP Rule 48. Alkire argued that “[s]imply

‘commencing’ trial and continuing the proceedings beyond the

time permitted by Rule 48 in the first place allows the State to

present one witness and toll Rule 48 in perpetuity without any

inclination as to when trial will finally conclude.”7

Alkire contended that defendants are entitled to a

meaningful commencement of trial and that the spirit of HRPP

Rule 48 was violated because, although the trial technically

“commenced” on January 10, 2017, ten months had passed since her

arrest and the trial had not yet concluded. Alkire argued that

even if HRPP Rule 48 was not violated, the ten-month delay from

arrest to the August 2017 continued trial date was presumptively

prejudicial for speedy trial purposes, citing Barker v. Wingo,

407 U.S. 514, 530 (1972). Alkire contended that the district

court was therefore required to consider the three other Barker

7 Alkire also argued that “[t]his is an ongoing issue in District Court.
Due to the current practices in District Court, when ‘commenced’ [trials]
have been scheduled months later because no other openings are available due
to the chronic congestion resulting from these exact practices. This is
exactly what Rule 48 dismissals are designed to prevent. This case should be
dismissed.”

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factors to determine whether her constitutional rights were

violated: (1) reason for the delay; (2) defendant’s assertion of

her right; and (3) prejudice to the defendant. 407 U.S. at 530.

Alkire claimed that all three factors “weigh heavily in favor of

dismissal.”

In its memorandum in opposition, the State countered that

HRPP Rule 48 did not apply because the rule “addresses delays

prior to trial.” The State also argued that the constitutional

right to a speedy trial similarly contemplates only pre-trial

delays. The State also argued that the defense had filed

several motions.

7. August 4, 2017 proceedings

On August 4, 2017, before trial resumed, the district court

orally denied Alkire’s motion to dismiss. It found that neither

HRPP Rule 48 nor Alkire’s constitutional rights to a speedy

trial were violated. With respect to HRPP Rule 48, the district

court stated:

Completing this trial less than nine months from the
date of arraignment is reasonable in my view under the
circumstances, particularly given that in this case the
defense has filed nine motions of one sort or another, the
State has filed one motion of its own, and also given that
the defense has formally waived Rule 48 and speedy trial
rights in this particular case.

In addition, I would note that certainly at the March
16, 2017 trial, the defense also orally requested a
lengthier delay in further trial than I actually allowed.
That request was to obtain transcripts. Candidly, I think
defense counsel has unclean hands in this matter because of
the waiver of time and because of the request for lengthier
delays than the court was willing to allow. The point

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being the court has tried when it can to bring this case to
trial and completion sooner rather than later.

The district court then ruled Alkire’s constitutional

rights to a speedy trial were also not violated because (1) the

reasons for the delay were to address numerous motions, the

defense waived time, and the judge had temporarily been assigned

to another court; (2) Alkire did not specifically assert her

speedy trial rights; and (3) Alkire was not prejudiced because

there was no significant pretrial incarceration. Additionally,

with respect to Alkire’s claim of possible prejudice, the

district court stated that “if counsel was genuinely concerned

about a loss of recollection, it would make no sense to request

lengthier than normal delays for -- to obtain transcripts.”

After the district court denied the motion to dismiss, the

SFST officer was recalled for defense counsel to continue his

cross-examination. Defense counsel questioned the officer with

respect to his training on conducting SFSTs and whether Alkire

was properly instructed in performing her SFST. The officer was

then excused.

The district court found Alkire guilty of the OVUII charge

based on HRS § 291E-61(a)(1). It found that Alkire

was under the influence –- influence of alcohol in an
amount sufficient to impair her ability to care for herself
and guard against casualty. That is basically evidenced by
the three swerves so to speak and the quote-unquote indicia.
So I do not find that she was impaired by alcohol in an
amount sufficient to impair her normal mental faculties,
but I do find on the alterna –- alternative ground to guard
against casualty. I also find that the defendant was at a

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minimum reckless in all instances required to be proven by
the State.

The district court stated its finding of guilt was based on the

police officers’ observations of Alkire’s driving and other

indicia of impairment. The district court indicated that even

without considering the results of the SFST, it would have

adjudged Alkire guilty. A notice of entry of judgment was

entered on August 30, 2017.

C. ICA proceedings

Alkire appealed her conviction to the ICA, asserting the

four points of error also raised on certiorari. The ICA

affirmed Alkire’s conviction in a summary disposition order

(“SDO”). State v. Alkire, CAAP-XX-XXXXXXX, 2019 WL 312155 (App.

Jan. 24, 2019) (SDO).

With respect to the three remaining issues we address on

certiorari, first, the ICA concluded that Alkire’s speedy trial

rights were not violated. Alkire, SDO at 2. The ICA concluded

that HRPP Rule 48 was not violated because Alkire was arrested

on October 15, 2016, and trial commenced on January 10, 2017 —

within the six months allowed by the rule. Id. As to Alkire’s

constitutional speedy trial rights under the Sixth Amendment to

the United States Constitution, and article I, section 14 of the

Hawaiʻi Constitution, the ICA rejected Alkire’s claim that the

district court erred by failing to consider the period of time

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between arrest and the conclusion of trial. Alkire, SDO at 2-3.

The ICA reasoned that because only three months elapsed between

the time when Alkire was arrested and the beginning of trial,

the delay was not presumptively prejudicial, and no further

analysis under Barker was required to determine whether Alkire’s

constitutional speedy trial rights were preserved. Alkire, SDO

at 3.

Next, with respect to Alkire’s request that the prosecutor

more thoroughly investigate whether impeachment evidence existed,

the ICA concluded that Alkire was urging the ICA to promulgate a

new discovery rule requiring prosecutors to personally review

officers’ personnel files for impeachment evidence, which the

ICA declined to impose. Id.

With respect to the video recording, the ICA concluded that

the district court did not err by denying Alkire’s motion to

compel because it did not appear the video footage was material.

Alkire, SDO at 4 (citing Kyles v. Whitley, 514 U.S. 419, 434-35

(1995)). The ICA so concluded based on its understanding of the

lack of evidence that any video existed at the time of Alkire’s

request and its view of the overwhelming evidence of impairment

in support of the conviction. Id.

The ICA thus affirmed the district court’s August 30, 2017

judgment of conviction.

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III. Standards of Review

A. HRPP Rule 48 dismissal

An appellate court reviews a trial court’s decision on

a HRPP Rule 48 motion to dismiss under both the “clearly

erroneous” and “right/wrong” tests:

A trial court’s findings of fact (FOFs) in deciding an HRPP
48(b) motion to dismiss are subject to the clearly
erroneous standard of review. An FOF is clearly erroneous
when, despite evidence to support the finding, the
appellate court is left with the definite and firm
conviction that a mistake has been committed. However,
whether those facts fall within HRPP 48(b)’s exclusionary
provisions is a question of law, the determination of which
is freely reviewable pursuant to the “right/wrong” test.

State v. Samonte, 83 Hawaiʻi 507, 514, 928 P.2d 1, 8 (1996)

(citation omitted).

B. Constitutional questions

This court reviews questions of constitutional law by

exercising our own independent constitutional judgment based on

the facts of the case. State v. Phua, 135 Hawaiʻi 504, 511-12,

353 P.3d 1046, 1053-54 (2015) (quotation marks omitted).

Therefore, questions of constitutional law are reviewed under

the right/wrong standard. Phua, 135 Hawaiʻi at 512, 353 P.3d at

1054.

C. Discovery requests

The scope of discovery is reviewed for an abuse of

discretion. State v. Fukusaku, 85 Hawaiʻi 462, 477-78, 946 P.2d

32, 47-48 (1997). “An abuse of discretion occurs when the

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decisionmaker exceeds the bounds of reason or disregards rules

or principles of law or practice to the substantial detriment of

a party.” State v. Fukuoka, 141 Hawaiʻi 48, 55, 404 P.3d 314,

321 (2017) (internal quotation marks and citations omitted).

IV. Discussion

The issues on certiorari for our consideration are:

II. As a matter of first impression, did the ICA gravely
err in rejecting Petitioner’s HRPP, Rule 48 and/or
constitutional speedy trial challenges, where the trial
“commenced” with one state witness but was subsequently
continued for eight months at no fault of Petitioner?

III. Did the ICA gravely err in holding that HRPP Rule 16
usurps United States Supreme Court precedent that requires
individual prosecutors to obtain and disclose impeachment
materials rather than merely relying on representations of
the police to determine whether and what materials should
be disclosed to Defendants?

IV. Did the ICA gravely err in finding that discovery,
requested for its potential exculpatory value, was not
material because the evidence of guilt was “overwhelming”
and/or in affirming the conviction where Ms. Alkire was
deprived of an opportunity to establish an appropriate
record as to the existence of the video?

A. The interests sought to be protected by HRPP Rule 48
require a “meaningful” commencement of trial

With respect to Alkire’s second question on certiorari, we

have held that “[u]nder the sixth amendment to the United States

Constitution and article I, section 14 of the Hawaiʻi

Constitution, an accused is guaranteed the right to a speedy

trial in all criminal prosecutions.” State v. Lau, 78 Hawaiʻi 54,

62, 890 P.2d 291, 299 (1995). This court applies the four-part

test set forth by the United States Supreme Court in Barker, 407

U.S. 514, and adopted in State v. Almeida, 54 Haw. 443, 509 P.2d

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549 (1973), to determine whether the government has violated a

defendant’s federal and state constitutional rights to a speedy

trial. Lau, 78 Hawaiʻi at 62, 890 P.2d at 299. These factors

are: “(1) length of the delay; (2) reasons for the delay; (3)

defendant’s assertion of his right to speedy trial; and (4)

prejudice to the defendant.” Id. (citing Barker, 407 U.S. at

533).

The United States Supreme Court indicated in Barker that

“[t]he States, of course, are free to prescribe a reasonable

period consistent with constitutional standards[.]” 407 U.S. at

523. Many states have such speedy trial rules, and HRPP Rule 48

is our version of a rule so prescribed, which, in Alkire’s case,

required that her trial “commence” within six months of her

arrest:

Rule 48. Dismissal.

. . . .

(b) By Court. Except in the case of traffic offenses
that are not punishable by imprisonment, the court shall,
on motion of the defendant, dismiss the charge, with or
without prejudice in its discretion, if trial is not
commenced within six months:

(1) from the date of arrest . . . .

Although Alkire’s trial started three months after her

arrest, Alkire alleges that her speedy trial rights under the

federal and state constitutions as well as HRPP Rule 48 were

violated because the district court failed to “meaningfully”

commence trial. This is because her trial was continued for

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months at a time and was not concluded until almost seven months

after it began and ten months after her arrest.

Because HRPP Rule 48 “is intended to provide broader

protections than the analogous constitutional [speedy trial]

guarantee,” Fukuoka, 141 Hawaiʻi at 64, 404 P.3d at 330, we

address Alkire’s assertion that HRPP Rule 48 requires a

“meaningful” commencement of trial. Alkire urges this court to

adopt the California Supreme Court’s interpretation of its

speedy trial rule. In Rhinehart, 677 P.2d at 1208, a jury was

impaneled on the day before California’s speedy trial rule would

have been violated, and the judge announced that, due to court

congestion, there would be a five or six day delay before

evidence would be presented. The California Supreme Court held

that “brought to trial” does not mean when a jury is impaneled,

but rather,

an accused is “brought to trial” within the meaning of
[California’s speedy trial rule] when a case has been
called for trial by a judge who is normally available and
ready to try the case to conclusion. The court must have
committed its resources to the trial, and the parties must
be ready to proceed and a panel of prospective jurors must
be summoned and sworn.

677 P.2d at 1211-12.

The language of HRPP Rule 48 differs from the California

rule. HRPP Rule 48 requires that a trial be “commenced” within

a certain time period while the California rule requires that an

accused by “brought to trial” within a certain time. Both rules,

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however, are state rules designed “to prescribe a reasonable

period consistent with constitutional standards[.]” Barker, 407

U.S. at 523. Although “separate and distinct from [the]

constitutional protection to a speedy trial[,]” State v.

Estencion, 63 Haw. 264, 268, 625 P.2d 1040, 1043 (1981), HRPP

Rule 48 is intended to ensure an accused a speedy trial.

Fukuoka, 141 Hawaiʻi at 55, 404 P.3d at 321.

Further,

[s]peedy trial rules are intended to prevent unreasonable
delay in the determination of criminal actions that subvert
the public good and disgrace the administration of justice.
To accomplish this end, HRPP Rule 48(b) requires a court to
dismiss the charge upon the defendant’s motion if trial is
not commenced within 6 months of a relevant triggering
date. The six-month period under HRPP Rule 48 is
equivalent to 180 days. Under HRPP Rule 48(c), there are
eight categories of delay that are to be excluded from
calculating the time within which trial must commence.

State v. Hernane, 145 Hawaiʻi 444, 450, 454 P.3d 385, 391 (2019)

(internal citations, alterations, and quotation marks omitted).

Accordingly, “HRPP Rule 48 operates to ‘ensure an accused a

speedy trial’ and to further ‘policy considerations to relieve

congestion in the trial court, to promptly process all cases

reaching the courts, and to advance the efficiency of the

criminal justice process.’” Fukuoka, 141 Hawaiʻi at 62-63, 404

P.3d at 328-29 (citations omitted).

Thus, HRPP Rule 48 “is intended to provide broader

protections than the analogous constitutional [speedy trial]

guarantee,” Fukuoka, 141 Hawaiʻi at 64, 404 P.3d at 330, but also

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seeks to effectuate constitutional speedy trial interests, which

include the following:

(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.
Of these, the most serious is the last, because the
inability of a defendant adequately to prepare his case
skews the fairness of the entire system. If witnesses die
or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to
recall accurately events of the distant past.

Lau, 78 Hawaiʻi at 64, 890 P.2d at 301 (quoting Barker, 407 U.S.

at 532).

Therefore, we now hold that, in order to effectuate its

intent, HRPP Rule 48 requires a “meaningful” commencement of

trial. We also hold that a trial is “meaningfully” commenced

when a trial court has “reasonably” committed its resources to

the trial, which also requires that the parties be ready to

proceed, and, if applicable, a panel of prospective jurors

summoned and sworn, as held by Rhinehart, 677 P.2d at 1211-12.

As this is a “new rule,” State v. Kaneaiakala, 145 Hawaiʻi 231,

235, 450 P.3d 761, 765 (2019), however, it will only

apply prospectively to events occurring after publication of

this decision, i.e., to trials that commence after the date of

this opinion.8 Thus, this holding does not apply to Alkire’s

case.9

8 As we stated in Lewi v. State, 145 Hawaiʻi 333, 346 n.21, 452 P.3d 330,
349 n.21 (2019):

(continued . . .)

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(. . . continued)
We recognize that we announce a new rule in this case, and
that we are “[f]ree to apply” this new rule “with or
without retroactivity.” State v. Jess, 117 Hawai‘i 381, 401,
184 P.3d 133, 153 (2008) (citation omitted). This court
has generally considered three primary alternatives in
deciding to what degree a new rule is to have retroactive
effect. Id. First, this court may give a new rule “purely
prospective effect, which means that the rule is applied
neither to the parties in the law-making decision nor to
those others against or by whom it might be applied to
conduct or events occurring before that
decision.” Id. (internal quotation marks and citations
omitted). Second, this court may give a new rule “limited
or ‘pipeline’ retroactive effect, under which the rule
applies to the parties in the decision and all cases that
are on direct review or not yet final as of the date of the
decision.” Id. (citations omitted). Third, this court
may give a new rule “full retroactive effect, under which
the rule applies both to the parties before the court and
to all others by and against whom claims may be
pressed.” Id. (internal quotation marks and citations
omitted). Lastly, this court has recognized a fourth
alternative, in which a new rule is given “selective
retroactive effect,” meaning the court applies the new rule
“in the case in which it is pronounced, then return[s] to
the old [rule] with respect to all [other cases] arising on
facts predating the pronouncement.” 117 Hawai‘i at 401 n.19,
184 P.3d at 153 n.19. We have declined to apply this
fourth alternative, as it “violates the principles of
treating similarly situated defendants the same.” Id.
(citations omitted).

In exercising our discretion in deciding the effect of a
new rule, we “weigh the merits and demerits” of retroactive
application of the particular rule in light of “(a) the
purpose of the newly announced rule, (b) the extent of
reliance by law enforcement authorities on the old
standards, and (c) the effect on the administration of
justice of a retroactive application of the new
standards.” 117 Hawai‘i at 401-02, 184 P.3d at 153-
54 (internal quotation marks and citations omitted).

The first factor, the purpose of the newly announced rule, would appear
to counsel against a purely prospective application of this new rule, as the
purpose of the newly announced rule is to protect a defendant’s speedy trial
rights. On the other hand, the second factor (reliance by law enforcement on
the old standards) counsels against a full retroactive application of this
new rule, as our trial courts have not been required to consider a
“meaningful commencement” standard for HRPP Rule 48 when setting continued
trial dates. The third factor (the effect on the administration of justice
of the new standards) also counsels against a full retroactive application of
this new rule, as HRPP Rule 40 petitions challenging trial commencements
based on an alleged lack of “meaningful commencement” could arise.
(continued . . .)

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B. Under the circumstances of this case, the prosecutor was
not required to personally review the personnel files of
the testifying police officers to satisfy Brady obligations

In her third question on certiorari, Alkire asks whether

“HRPP Rule 16 usurps United States Supreme Court precedent that

requires individual prosecutors to obtain and disclose

impeachment materials rather than merely relying on

representations of the police to determine whether and what

materials should be disclosed to Defendants.”

As noted in Sections II.B.1 and II.B.3, the district court

denied Alkire’s motion to compel the personnel files of the

testifying police officers based on the prosecutor’s

representation that she had made standard written inquiries to

HPC and HPD and had been informed no exculpatory evidence,

(. . . continued)
See, e.g., Jess, 117 Hawai‘i at 403, 184 P.3d at 155 (concluding that the
third factor counseled against full retroactive effect of new rule, because
“our courts would be inundated with HRPP Rule 40 (2006) petitions filed by
defendants who were sentenced to extended terms from as long ago as 1978[.]”).

On balance, based on the second and third factors, we determine that a
prospective-only application of the new rule is most appropriate. We
anticipate, however, that adoption of this new rule will encourage meaningful
trial commencements.
9 We must therefore also address Alkire’s constitutional speedy trial
claim. This court applies the four-part test set forth by the United States
Supreme Court in Barker, 407 U.S. 514, and adopted in Almeida, 54 Haw. 443,
509 P.2d 549, to determine whether the government has violated a defendant’s
federal and state constitutional rights to a speedy trial. Lau, 78 Hawaiʻi at
62, 890 P.2d at 299. These factors are: “(1) length of the delay; (2)
reasons for the delay; (3) defendant’s assertion of his right to speedy
trial; and (4) prejudice to the defendant.” Id. (citing Barker, 407 U.S. at
533). We have stated that, unless there is a delay in bringing a defendant
that is presumptively prejudicial under factor (1), it is not necessary to
inquire into the other factors. Almeida, 54 Haw. at 447, 509 P.2d at 552.
As Alkire was brought to trial three months after her arrest, there was no
violation of her constitutional rights to speedy trial.

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including evidence regarding truth or veracity, existed in the

files of the testifying police officers. Alkire maintains that

despite this representation, the prosecutor was required to

investigate further by personally reviewing the files for

impeachment materials to satisfy Brady, which, as noted above,

held that “[t]he suppression by the prosecution of evidence

favorable to the accused violates due process where the evidence

is material to guilt or punishment, regardless of the good faith

or bad faith of the prosecution.” Fukusaku, 85 Hawai‘i at 479,

946 P.2d at 49 (quoting State v. Matafeo, 71 Haw. 183, 185, 787

P.2d 671, 672 (1990)).

Under Brady, the government must disclose evidence

favorable to the defense “where the evidence is material either

to guilt or to punishment[.]” Kyles, 514 U.S. at 432 (citing

Brady, 373 U.S. at 87). “[F]avorable evidence is material, and

constitutional error results from its suppression by the

government, ‘if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.’” Kyles, 514 U.S. at 433

(quoting Bagley, 473 U.S. at 682).

In Kyles, the United State Supreme Court stated that “the

individual prosecutor has a duty to learn of any favorable

evidence known to the others acting on the government’s behalf

in the case, including the police.” 514 U.S. at 437. In Kyles,

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a federal habeas case arising out of a capital murder conviction,

the State had failed to turn over numerous pieces of evidence

favorable to the defendant. 514 U.S. at 431-32. The State

argued that because “some of the favorable evidence in issue

here was not disclosed even to the prosecutor until after trial,”

the State “should not be held accountable under Bagley and Brady

for evidence known only to police investigators and not to the

prosecutor.” 514 U.S. at 438. The Supreme Court rejected this

argument and explained that its precedent imposes on the

prosecutor a “duty to learn of any favorable evidence known to

the others acting on the government’s behalf in the case,

including the police.” 514 U.S. at 437.

Thus, Kyles imposes an affirmative duty on a prosecutor to

learn of favorable evidence known to other government agents,

which must be disclosed if it is “material,” i.e., gives rise to

a reasonable probability that the evidence could lead to a

different result at trial. Youngblood v. West Virginia, 547 U.S.

867, 869-70 (2006) (per curiam). “Material” evidence includes

that pertaining to witness credibility, as when the “reliability

of a given witness may well be determinative of guilt or

innocence,” the nondisclosure of evidence affecting that

witness’s credibility is material. Giglio v. United States, 405

U.S. 150, 154 (1972) (citation omitted). Put another way,

evidence is material “if there is a reasonable probability that,

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had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” State v. Moriwaki,

71 Haw. 347, 356, 791 P.2d 392, 397 (1990) (quoting Bagley, 473

U.S. at 676).

In Kyles, the Court acknowledged that police investigators

sometimes fail to fully inform prosecutors of all that they know,

but it also stated that “procedures and regulations can be

established to carry [the prosecutor’s] burden and to insure

communication of all relevant information on each case to every

lawyer who deals with it.” 514 U.S. at 438 (quoting Giglio, 405

U.S. at 154). Thus, pursuant to Kyles, states may set out

procedural rules to address a prosecutor’s discovery obligations.

We therefore address whether the district court’s refusal to

order the prosecutor to personally review the testifying police

officers’ files in Alkire’s case met the requirements of our

discovery rules.

With respect to discovery obligations under our procedural

rules, “[d]isclosure in criminal cases is governed by HRPP Rule

16, which limits discovery ‘to cases in which the defendant is

charged with a felony,’ . . . except as provided in HRPP Rule

16(d).” State v. Lo, 116 Hawaiʻi 23, 26, 169 P.3d 975, 978

(2007). HRPP Rule 16(d) prescribes rules for discovery when a

defendant is charged with nonfelony and criminal traffic

offenses, and provides that, “[u]pon a showing of materiality

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and if the request is reasonable, the court in its discretion

may require disclosure as provided for in this Rule 16 in cases

other than those in which the defendant is charged with a felony,

but not in cases involving violations.” (Emphasis added.)

Because Alkire was charged with a criminal traffic offense,

HRPP Rule 16(d) applies. HRPP Rule 16(d) provides courts with

discretion to allow discovery in misdemeanor matters upon a

showing of “materiality” and if a request is “reasonable.”

Being that the patrol officer and SFST officer were to be the

only witnesses presented by the State to establish its case

against Alkire, the request for exculpatory impeachment evidence

with respect to these officers was “material” and “reasonable”

for purposes of our discovery rules.

As an officer of the court, the prosecutor in this case

represented that the prosecutor’s office was not in possession

or control of any potentially exculpatory or impeachment

information that had not yet been turned over to the defense.

But under HRPP Rule 16(b)(2), even if discoverable matters are

not within a prosecutor’s possession or control, the prosecutor

has additional obligations:

Upon written request of defense counsel and specific
designation by defense counsel of material or information
which would be discoverable if in the possession or control
of the prosecutor and which is in the possession or control
of other governmental personnel, the prosecutor shall use
diligent good faith efforts to cause such material or
information to be made available to defense counsel; and if
the prosecutor’s efforts are unsuccessful the court shall

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issue suitable subpoenas or orders to cause such material
or information to be made available to defense counsel.

(Emphasis added.) Thus, because the officers’ files were not

within the prosecutor’s possession, she was obligated to

exercise “diligent good faith efforts to cause such material or

information to be made available to defense counsel[,]” if such

material was “in the possession or control of other governmental

personnel.” HRPP Rule 16(b)(2).

In this regard, the prosecutor further represented she had

made affirmative inquiries to both the HPC and the HPD for

information pertaining to the truth or veracity of the

testifying police officers and was informed that no such

information existed. Under the circumstances of this case, we

conclude these efforts of the prosecutor constituted “diligent

good faith efforts to cause such material or information to be

made available to defense counsel[,]” satisfying HRPP Rule

16(d)(2) and Kyles.

Our analysis does not, however, end here. As we stated in

State v. Tetu, 139 Hawaiʻi 207, 386 P.3d 844 (2016), HRPP Rule 16

does not set an outer limit on this court’s power to ensure a

defendant’s Hawaiʻi Constitution, article I, section 5 due

process right to a fair trial, which requires that

“a defendant be given a meaningful opportunity to present a

complete defense and that discovery procedures provide the

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maximum possible amount of information and a level-playing field

in the adversarial process.” 139 Hawaiʻi at 214, 220, 386 P.3d

at 851, 857. And as noted in State v. Bowe, 77 Hawaiʻi 51, 881

P.2d 538 (1994), we are not bound to give the state due process

clause the same interpretation as given under the United States

Constitution. 77 Hawaiʻi at 58, 881 P.2d at 545. Thus, state

due process rights are also implicated in discovery requests.

We have also stated, however, that “due process is flexible

and calls for such procedural protections as the particular

situation demands.” State v. Mundon, 121 Hawaiʻi 339, 359, 219

P.3d 1126, 1146 (2009) (citation omitted). Under the

circumstances, we conclude that the State satisfied its

obligations with respect to Alkire’s rights under Hawaiʻi’s due

process clause with its inquiries of HPD and HPC, which came

back negative.

For all of these reasons, the district court did not abuse

its discretion in not requiring the prosecutor to personally

review the testifying officers’ personnel files.

C. As the video recording was material to Alkire’s defense and
her request was reasonable, the district court abused its
discretion in denying her motion to compel the video
recording

1. The video recording was material and Alkire’s request
was reasonable

In the fourth and last question on certiorari, Alkire

contends that the district court abused its discretion with

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respect to her motion to compel production of the video

recording. As discussed in Section IV.B above, HRPP Rule 16(d)

allows a trial court in a criminal traffic case to, in its

discretion, require disclosure as provided by HRPP Rule 16,

“[u]pon a showing of materiality and if the request is

reasonable.” The district court denied Alkire’s motion to

compel video recording on the grounds Alkire had not shown that

a “video recording of [Alkire] exists or that it is material[.]”

Because Alkire’s request was both “reasonable” and “material,”

the district court abused its discretion in denying her motion

to compel video recording.

First, Alkire’s request was reasonable. We first note that

the State does not even argue that Alkire’s request was

unreasonable. And with respect to reasonableness, contrary to

the district court’s ruling, Alkire showed that the video

recording should have existed at the time she sent her request

to preserve evidence. Alkire attached as exhibits to her motion

(1) a copy of the HPD policy requiring video monitoring of all

detainees in holding cells; (2) a transcript from a prior

unrelated hearing where Sgt. Tong from the HPD Central Receiving

Division explained that HPD retains video recordings for “20 to

25 days” before it is written over, unless a request to preserve

or subpoena is received; (3) a letter from Sgt. Tong regarding a

discovery request for another case where Sgt. Tong stated that

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(a) video recordings of the Kalihi Police Station “exist for a

period of 30 days after the day and time it was recorded;” and

(b) “cameras at the District 5 Kalihi Police Station are

positioned to get maximum viewing angle of the exterior of the

police station and all access points to the station[]” and

provide “surveillance viewing of the adult and juvenile

processing and cellblock areas[]”; and (4) Alkire’s request to

preserve evidence, which was sent to the HPD Central Receiving

Division just five days after her arrest. Thus, the HPD under

its procedures would have possessed the video recording when it

received a request to preserve evidence, and it would not have

been burdensome for the State to preserve and then produce the

video recording. Thus, Alkire’s request was reasonable.

Second, the video recording of Alkire at the Kalihi Police

Station is “material” to challenging the police officers’

testimony that Alkire demonstrated indicia of intoxication. See

Lo, 116 Hawaiʻi at 27, 169 P.3d at 979 (holding that information

regarding the calibration of laser units operated by the police

was “material to challenging the accuracy of the particular

laser unit,” which provided the sole basis for the defendant’s

charge of excessive speeding).10 Here, the district court found

10 Other jurisdictions have also concluded that police video recordings
are material to the defense when the defendant is charged with impairment or
intoxication. See, e.g., Koonce v. District of Columbia, 111 A.3d 1009, 1015
(D.C. 2015) (“[V]ideo of a person just arrested for driving under the
(continued . . .)

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Alkire guilty based solely on the indicia of impairment observed

by the police officers. Thus, the video recording of Alkire at

the Kalihi Police Station shortly after her arrest is material

to challenging the police officers’ testimony about the indicia

of impairment that they allegedly observed. Moreover, the video

recording could lead to the discovery of other admissible

evidence.11

2. Before any retrial, the district court must conduct
another hearing regarding the video recording

On remand, before any retrial, the district court must hold

a hearing to determine if the video recording was preserved. As

we stated in Matafeo:

In Brady v. Maryland, the United States Supreme Court held
that the suppression by the prosecution of evidence
favorable to the accused violates due process where the
evidence is material to guilt or punishment, regardless of
the good faith or bad faith of the prosecution. The Brady
rule has been incorporated into the Hawaiʻi due
process jurisprudence and relied upon frequently by this
court.

. . . .

(. . . continued)
influence or operating a vehicle while impaired is material in that it may
assist in showing whether the person was acting in a way consistent with
intoxication or impairment.”); State v. Ferguson, 2 S.W.3d 912, 918 (Tenn.
1999) (concluding that videotape of sobriety test at police station was “at
least material to the preparation of defendant’s defense”). See also State v.
Zinsli, 966 P.2d 1200, 1205 (Or. Ct. App. 1998) (holding that a dashboard
camera video of a defendant performing a field sobriety test was material to
the defense “because its replay would have given defendant a unique
opportunity to permit the jurors to form their own opinions as to defendant’s
intoxication level.”).
11 As discovery of the video recording should have been permitted under
HRPP Rule 16, we need not reach the issue of whether state constitutional due
process also mandated its discovery under Tetu, 139 Hawaiʻi 207, 386 P.3d 844.

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This court has held that the duty of disclosure is
operative as a duty of preservation, and that principle
must be applied on a case-by-case basis[.]

In certain circumstances, regardless of good or bad faith,
the State may lose or destroy material evidence which is so
critical to the defense as to make a criminal trial
fundamentally unfair without it.

71 Haw. at 185, 187, 787 P.2d at 672-73 (citations, alterations,

and quotation marks omitted).

Thus, based on due process considerations, if the video

recording was not preserved, as indicated in Matafeo, the

district court must first determine whether it was so critical

to Alkire’s defense as to make a criminal trial fundamentally

unfair without it. If the district court determines that it was,

regardless of good or bad faith, it must dismiss the charge

against Alkire. State v. Steger, 114 Hawaiʻi 162, 169-70, 158

P.3d 280, 287-88 (App. 2006) (citing Matafeo, 71 Haw. at 187,

787 P.2d at 673). If the recording was not preserved and the

district court determines, however, that the video recording is

not so critical to Alkire’s defense as to make a criminal trial

fundamentally unfair without it, the district court should then

fashion an appropriate remedy.

In civil cases, this court has recognized that trial courts

have authority “to fashion a remedy to cure prejudice suffered

by one party as a result of another party’s loss or destruction

of evidence.” Stender v. Vincent, 92 Hawai‘i 355, 362, 992 P.2d

50, 57 (2000) (internal quotation marks and citation omitted).

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Where evidence has been lost or destroyed, the trier of fact may

draw an adverse inference that the lost evidence was unfavorable

to the spoliator. 92 Hawai‘i at 364-65, 992 P.2d at 59-60.

We therefore now hold that the permissive adverse inference

rule also applies to criminal cases where, as here, the State

should have had a recording in its possession and, despite the

accused’s timely request to preserve the evidence, the video

recording was apparently lost or destroyed. See People v.

Strife, 167 A.D.3d 1095, 1098 (N.Y. App. Div. 2018) (holding

that the trial court “erred by failing to provide a permissive

adverse inference charge based upon the [State’s] failure to

preserve a copy of the booking room video on the night of

defendant’s arrest”); People v. Handy, 988 N.E.2d 879, 882 (N.Y.

2013) (“[A] permissive adverse inference charge should be given

where a defendant, using reasonable diligence, has requested

evidence reasonably likely to be material, and where that

evidence has been destroyed by agents of the State.”).

V. Conclusion

Based on the reasons discussed above, we vacate the ICA’s

February 25, 2019 judgment on appeal, which affirmed the

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district court’s August 30, 2017 judgment, and we remand to the

district court for further proceedings in accordance with this

opinion.

Richard L. Holcomb /s/ Sabrina S. McKenna
for petitioner/defendant-
appellant /s/ Richard W. Pollack

Donn Fudo /s/ Michael D. Wilson
for respondent/plaintiff-
appellee

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