NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAR-2021
07:56 AM
Dkt. 48 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
GEORGE CALVENTAS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(Case No. 1DTA-16-04139)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
After a bench trial, Defendant-Appellant George
Calventas, also known as George C. Kalventas (Calventas) was
convicted of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1).1 He appeals from the Notice of Entry of
Judgment and/or Order and Plea/Judgment (Judgment) entered by the
District Court of the First Circuit, Honolulu Division,2 on
February 6, 2018. He contends: (1) the district court erred by
1
HRS § 291E-61 (Supp. 2014) provides, in relevant part:
§291E-61 Operating a vehicle under the influence of an
intoxicant. (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[.]
2
The Honorable James C. McWhinnie presided over the trial.
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denying his motions to compel discovery; and (2) there was
insufficient evidence to convict him of OVUII. For the reasons
explained below, we vacate the Judgment and remand for further
proceedings consistent with this memorandum opinion.
(1) The district court abused its discretion
by denying the motions to compel discovery.
Discovery in criminal proceedings is governed by
Rule 16 of the Hawai#i Rules of Penal Procedure (HRPP). The rule
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.
. . . .
(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.
(Underscoring added.)
Calventas was charged with OVUII, a petty misdemeanor.3
Accordingly, HRPP Rule 16 gave the district court discretion to
grant his motion to compel discovery "[u]pon a showing of
materiality and if the request is reasonable[.]" State v.
Alkire, 148 Hawai#i 73, 89, 468 P.3d 87, 103 (2020) (citing HRPP
3
See HRS § 701-107(4) (2014) (crime is petty misdemeanor if statute
defining crime provides for punishment not to exceed thirty days in prison);
HRS § 291E-61(b), (b)(1) (Supp. 2014) (first offense OVUII is punishable by up
to five days of imprisonment).
2
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Rule 16(d)).
The State argues that "[a]bsent a court order, the
State is not obligated to provide any discovery materials to a
defendant in a petty misdemeanor case." HRPP Rule 16 does not,
however, set an outer limit on the court's power to ensure a
defendant's constitutional rights. State v. Tetu, 139 Hawai#i
207, 214, 386 P.3d 844, 851 (2016). The State is required to
disclose, upon request, evidence favorable to the defendant that
is material to the defendant's guilt. Brady v. Maryland, 373
U.S. 83, 87 (1963) (holding that "the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution."); Alkire, 148 Hawai#i at 88, 468 P.3d
at 102. "[E]vidence is material if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." Id. at
89, 468 P.3d at 103 (cleaned up).
The Hawai#i Supreme Court has extended Brady to apply
to impeachment evidence. "The duty to disclose evidence that is
favorable to the accused includes evidence that may be used to
impeach the government's witnesses by showing bias, self-
interest, or other factors that might undermine the reliability
of the witness's testimony." Birano v. State, 143 Hawai#i 163,
182, 426 P.3d 387, 406 (2018) (citing Giglio v. United States,
405 U.S. 150, 154 (1972)). "The duty to disclose material
impeachment evidence is compelled not only by due process, but
also the constitutional right to confrontation." Birano, 143
Hawai#i at 183, 426 P.3d at 407.
In this case, Calventas was cited by Honolulu Police
Department (HPD) officer Ty Ah Nee. Officer Ah Nee had
previously issued a speeding citation to a person identified as
Adam Wong. According to a news media report, then-Honolulu
Prosecuting Attorney Keith Kaneshiro (Kaneshiro) said that Wong's
ticket was dismissed because it was part of an "investigation
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into whether HPD officers were writing 'ghost tickets' to
motorists so that they could collect more overtime pay by being
called into court to testify." Kaneshiro reportedly said he had
authorized the dismissal of Wong's ticket "as part of a plea
agreement[.]" A representative of the Department of the
Prosecuting Attorney acknowledged the existence of the plea
agreement, and said it "was not part of Wong's case, but the
department's ongoing investigation into the police." The
department refused a media request for a copy of the plea
agreement, saying "it would jeopardize the ongoing
investigation."
Calventas requested discovery of, among other things:
2. The case number(s) and/or investigative reports for
any other individual(s) who were either investigated
or charged, or whom the State expects to investigate
or charge, in connection with the [Adam Wong] traffic
incident . . . as potentially exculpatory evidence
under Brady v. Maryland, 373 U.S. 83, 83 S.[]Ct. 1194
(1963);
3. Any other traffic citations issued by Officer Ty
Ah Nee that the State has either suspected or
investigated as potentially or actually erroneous or
fraudulent ("ghost citations"), as potentially
exculpatory evidence under Brady v. Maryland, 373 U.S.
83, 83 S.[]Ct. 1194 (1963); [and]
4. Any other District Court cases that the State has
requested to dismiss due to an erroneous or fraudulent
citation issued by Officer Ty Ah Nee[.]
The State responded that it was "unaware of the existence of any
such materials."
Calventas filed a motion to compel discovery. The
motion was supported by copies of the ticket that had been issued
by Officer Ah Nee to Wong and the media account of Kaneshiro's
statements about his office's investigation into "ghost tickets."
The State did not argue, in its memorandum in opposition, that
the ghost ticket investigation or the related plea agreement
never existed. The State did not submit an affidavit or
declaration from a qualified witness attesting that
notwithstanding Kaneshiro's statements, none of the requested
documents exist. The State did not offer to submit the Adam Wong
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plea agreement — the existence of which had been confirmed by the
Department of the Prosecuting Attorney — to the district court
for in camera review to determine whether, and under what
conditions, the information should be revealed to Calventas. See
United States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991)
("If the prosecution is uncertain about the materiality of
information within its possession, it may submit the information
to the trial court for an in camera inspection and evalua-
tion[.]"). Instead, the State's memorandum argued that the
district court "should adopt a threshold of materiality showing
before requiring the State to perform Henthorn checks or produce
materials requested by Defendant." The district court denied the
motion to compel.4
Calventas later filed a renewed motion to compel,
making an offer of proof that Officer Ah Nee would testify that
he was the subject of Kaneshiro's statement to the press about
"ghost citations." During the hearing on Calventas's renewed
motion, the deputy prosecuting attorney represented that after
asking superiors about the discovery request, "what has always
been said is there is no investigation." The renewed motion was
denied.5
On appeal, State argues that Calventas failed to prove
that the requested information existed. "To challenge the
government's representation that it lacks Brady information, [a
defendant] must either make a showing of materiality under
Rule 16 [of the Federal Rules of Criminal Procedure] or otherwise
demonstrate that the government improperly withheld favorable
evidence." United States v. Lucas, 841 F.3d 796, 808 (9th Cir.
2016). Calventas made such a showing by providing the district
court with evidence that Kaneshiro referred to an ongoing "ghost
ticket" investigation, and that the Department of the Prosecuting
Attorney admitted the existence of a related plea agreement but
4
The Honorable James S. Kawashima presided.
5
The Honorable William M. Domingo presided.
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refused a media request for a copy saying "it would jeopardize
the ongoing investigation."
"An abuse of discretion occurs where the trial court
has clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant." Kobashigawa v. Silva, 129 Hawai#i 313, 320, 300
P.3d 579, 586 (2013) (cleaned up). We hold that the district
court abused its discretion by denying Calventas's motions to
compel discovery of the Prosecuting Attorney's investigation into
invalid "ghost tickets" allegedly written by Officer Ah Nee.
Such an investigation could be relevant to Officer Ah Nee's
credibility, which in turn could be material to Calventas's
guilt. Thus, the information requested by Calventas was
material, the request was reasonable, and the district court's
denial of Calventas's motions to compel discovery deprived
Calventas of his constitutional rights to due process and
confrontation. Birano, 143 Hawai#i at 183, 426 P.3d at 407.
(2) The evidence was sufficient
to support the OVUII conviction.
When reviewing the sufficiency of evidence on appeal,
we apply the following standard of review:
[E]vidence adduced in the trial court must be con-
sidered in the strongest light for the prosecution
when the appellate court passes on the legal suf-
ficiency of such evidence to support a conviction; the
same standard applies whether the case was before a
judge or jury. The test on appeal is not whether
guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citations omitted). "'Substantial evidence' as to every
material element of the offense charged is credible evidence
which is of sufficient quality and probative value to enable a
person of reasonable caution to support a conclusion." Id.
(citation omitted).
At trial Calventas and the State stipulated to Officer
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Ah Nee's training, experience, and qualifications to administer
and evaluate the standardized field sobriety tests in accordance
with National Highway Traffic Safety Administration standards and
HPD protocols, and that Officer Ah Nee would be testifying as a
lay witness about his observations of Calventas's performance on
the walk-and-turn and one-leg-stand tests.
Officer Ah Nee testified that he was on H-1 speed
enforcement duty on October 27, 2016. At about 1:08 a.m. he
observed a silver Mercedes traveling eastbound in the far left
lane near the Bingham Street off ramp. The Mercedes was
traveling faster than other cars.
While Officer Ah Nee was attempting to stop the
Mercedes, it exited H-1 and turned onto Harding Avenue. The car
drifted to the right, heading directly toward some trash
receptacles placed on the sidewalk. The passenger-side wheels
appeared to have gone onto the sidewalk. The Mercedes "jerked
back to his left and back into the lane" somewhere around the 7th
Avenue intersection.
Over his vehicle's loudspeaker Officer Ah Nee
instructed the Mercedes driver to turn into the next available
side street. The Mercedes turned right into 8th Avenue. Both
passenger-side wheels rolled onto the curb as it turned. The
Mercedes stopped in the roadway. Officer Ah Nee approached the
Mercedes. Calventas was the only occupant. Officer Ah Nee had
to ask Calventas several times for his driver's license.
Calventas's speech was thick and slurred. His eyes appeared to
be red, watery, and glassy. Officer Ah Nee noticed "a very
strong odor of an alcoholic[-]type beverage coming out of the
vehicle[.]"
Calventas agreed to participate in the field sobriety
test. He held onto his car door for balance as he came out of
the vehicle. Calventas answered "no" to the medical rule-out
questions. He appeared to be unstable during the horizontal gaze
nystagmus test, swaying "about two to three inches or so in all
directions . . . throughout the whole time."
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During the instructional stage of the walk-and-turn
test Calventas stepped out of position four times. During the
first nine heel-to-toe steps he missed heel-to-toe a few times,
stepped off the line, raised his arms, and only took eight steps.
He failed to execute the turn as instructed. On the return he
again missed heel-to-toe and stepped off the line "a couple of
times."
During the one-leg-stand test Calventas swayed the
entire time. He put his raised foot down three times during the
first ten seconds, but he put it back up. During the second ten
seconds he started to hop and both arms came out from his sides.
During the last ten seconds he put his raised foot down for three
or four seconds.
While announcing its decision the district court stated
that Officer Ah Nee testified he "quote, smelled a very strong
odor of alcohol from defendant" (underscoring added). Calventas
correctly contends the finding is clearly erroneous because
Officer Ah Nee actually testified that he noticed "a very strong
odor of an alcoholic[-]type beverage coming out of the vehicle"
(underscoring added). However, "[i]t matters not if a conviction
under the evidence as so considered might be deemed to be against
the weight of the evidence so long as there is substantial
evidence tending to support the requisite findings for
conviction." State v. Summers, 62 Haw. 325, 332, 614 P.2d 925,
930 (1980) (citations omitted). "This standard of review is the
same whether the case was tried before a judge or jury." State
v. Hernandez, 61 Haw. 475, 478, 605 P.2d 75, 77 (1980) (citations
omitted). Officer Ah Nee's testimony about his other
observations of Calventas's driving and performance on the SFST,
considered in the strongest light for the prosecution, was
sufficient to support the trier of fact's conclusion that
Calventas operated the Mercedes "[w]hile under the influence of
alcohol in an amount sufficient to impair [his] normal mental
faculties or ability to care for [himself] and guard against
casualty[.]" HRS § 291E-61(a)(1).
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Based upon the foregoing, the Judgment entered by the
district court on February 6, 2018, is vacated and this matter is
remanded for further proceedings consistent with this memorandum
opinion.
DATED: Honolulu, Hawai#i, March 31, 2021.
On the briefs:
/s/ Katherine G. Leonard
Stephen K. Tsushima, Presiding Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
William K. Li, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge
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