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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-OCT-2022
08:01 AM
Dkt. 65 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
WILLIAM TOOHER, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Chan, JJ.)
In this interlocutory appeal, Defendant-Appellant
William Tooher (Tooher) appeals from the: (1) Findings of Fact
(FOFs), Conclusions of Law (COLs) and Order Denying Defendant's
Motion to Dismiss for Destruction of Evidence and Tampering with
Evidence entered on October 15, 2021 (FOFs, COLs, and Order
Denying Motion to Dismiss); and (2) Findings of Fact, Conclusions
of Law and Order Denying Defendant's Second Motion to Suppress
Evidence entered on October 15, 2021 (FOFs, COLs, and Order
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Denying Second Motion to Suppress), both entered by the Circuit
Court of the First Circuit (Circuit Court).1
Tooher raises two points of error on appeal, contending
that the Circuit Court erred in entering: (1) the FOFs, COLs,
and Order Denying Motion to Dismiss, specifically FOFs 8, 9, 14,
15, 16, and 17, and COLs 3, 5, 6, 7, 9, 10, and 11; and (2) the
FOFs, COLs, and Order Denying Second Motion to Suppress,
specifically FOFs 6, 7, 9(a-f), 10, 11(a-g), and 12, and COLs 8
(a-h), 9, and 10.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, as well as the
relevant legal authorities, we resolve Tooher's points of error
as follows:
(1) Tooher argues that his right to a fair trial has
been compromised because exculpatory evidence from both a video
surveillance system and Tooher's cellular phone was lost or
destroyed while in the actual or constructive possession of the
Honolulu Police Department (HPD).
In some instances, the government's failure to preserve
evidence can violate a defendant's due process rights. In
Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988), the United
States Supreme Court evaluated the due process implications of
the prosecution's inadvertent loss or destruction of potentially
1
The Honorable Kevin A. Souza presided.
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exculpatory evidence that law enforcement had collected. The
Supreme Court held that "unless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of
law." Id. at 58.
The Hawai#i Supreme Court reviewed and refined
Youngblood's protections in State v. Matafeo, 71 Haw. 183, 787
P.2d 671 (1990), where it evaluated whether the destruction of
evidence implicated the defendant's opportunity to present a
complete defense where there was no showing of bad faith by the
government. Id. at 185, 787 P.2d at 672. In Matafeo, the
defendant, who was charged with kidnapping and sexual assault,
filed an interlocutory appeal from the trial court's denial of
his motion to dismiss stemming from the inadvertent destruction
of evidence by the police. Id. at 183-84, 787 P.2d at 671-72.
Due to a mistake in the HPD records department, HPD destroyed
physical evidence related to Matafeo's case, including the
complainant's panties with a ripped crotch. Id. at 184, 787 P.2d
at 672. Matafeo argued that the complainant's clothing was
material evidence favorable to him, as it corroborated his
defense that the sex was consensual, and thus its destruction
violated his right to due process under Brady v. Maryland, 373
U.S. 83 (1963), and its progeny. Matafeo, 71 Haw. at 185, 787
P.2d at 672.
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The supreme court held that in Hawai#i, "[i]n 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." Id. at 187, 787 P.2d at 673 (citation omitted). However,
the supreme court held that the complainant's clothing in that
case did not rise to such a level as to make a criminal trial
fundamentally unfair without it. Id. The supreme court
reasoned, inter alia, that testimony and a description of the
garments did not support a reasonable inference that the
condition of the garments would have favored the defense, that
the State had disclosed the evidence report and other records
relating to the destruction of the evidence, and that Matafeo
would be able to cross-examine the State's witnesses on the
condition of the clothing. Id. at 187-88, 787 P.2d at 673-74.
Since Matafeo, Hawai#i appellate courts have
consistently held that speculative prejudice to a defendant does
not automatically trigger due process relief. See, e.g., State
v. Diaz, 100 Hawai#i 210, 225-26, 58 P.3d 1257, 1272-73 (2002)
(holding that there was no due process violation where the
defendant failed to demonstrate how a copy of a police officer's
lost report was material to her guilt or innocence); State v.
Barnes, No. CAAP-XX-XXXXXXX, 2019 WL 3526425, at *6-7 (App. Aug.
2, 2019) (SDO) (in a case involving shoplifting, holding that the
defendant-appellant's argument that lost security footage from
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the scene went to the asset protection investigator's credibility
was too speculative because it was unclear whether the evidence
would benefit either party); State v. Steger, 114 Hawai#i 162,
170, 158 P.3d 280, 288 (App. 2006) (holding that the loss of
photographs of the crime scene did not violate the defendant-
appellant's due process rights because, inter alia, the
defendant-appellant had never seen the photographs and a police
officer testified that at least one would have corroborated the
charges).
Failure to preserve evidence can violate a defendant's
due process rights when the harm is identifiable, and not merely
speculative. See State v. Dunphy, 71 Haw. 537, 542-44, 797 P.2d
1312, 1315-16 (1990). If, however, a trial court determines that
the lost or destroyed evidence is not so critical to a defense
that lack of the evidence would not render a criminal trial
fundamentally unfair, the trial court has the authority to
fashion an appropriate remedy. See State v. Alkire, 148 Hawai#i
73, 91, 468 P.3d 87, 105 (2020).
Here, the Circuit Court found that there was no bad
faith on the part of HPD. This determination is supported by the
Circuit Court's FOFs.
Tooher challenges FOFs 8, 9, 14, 15, 16, and 17 and
COLs 3, 5, 6, 7, 9, 10, and 11 of the FOFs, COLs, and Order
Denying Motion to Dismiss. The Circuit Court's FOF 8 found that
property manager/landlord Glenn Martinez (Martinez), had entered
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Tooher's cabin without the knowledge or direction of HPD
Detective Chadwick Lee (Detective Lee) or HPD Corporal Cory
Shiraishi (Corporal Shiraishi).2 FOF 9 found that Martinez gave
a handwritten note to Detective Lee, but may have kept Tooher's
cellular phone. FOF 14 found that Detective Lee's decision to
retrieve only portions of the available video footage was made in
good faith and after reviewing all of the available footage. In
FOF 15, the Circuit Court acknowledged that it was "conceivable"
that Martinez removed and disposed of Tooher's cellular phone,
but even if he did so, it was without the knowledge,
authorization, or approval of HPD. These FOFs were supported by
Detective Lee and Corporal Shiraishi's testimony, which the
Circuit Court found credible.3 In FOFs 16 and 17, the Circuit
Court found that Tooher presented no evidence, only vague
assertions, as to what specific exculpatory information was
contained on the missing cellular phone.
2
In FOF 14, the Circuit Court found, in part, that HPD Detective
Lee and HPD Corporal Shiraishi's testimony was credible and reliable. To the
extent that Tooher invites this court to evaluate the credibility of the
witnesses, we decline. It is axiomatic that "[a]n appellate court will not
pass upon the trial judge's decisions with respect to the credibility of
witnesses and the weight of the evidence, because this is the province of the
trial judge." State v. Kwong, 149 Hawai#i 106, 112, 482 P.3d 1067, 1073
(2021) (quoting State v. Eastman, 81 Hawai #i 131, 139, 913 P.2d 57, 65
(1996)).
3
Tooher points out conflicting statements by Martinez and Detective
Lee regarding the location of Tooher's cellular phone and urges this court to
interpret these conflicting statements as "unassailable [evidence] that
[Martinez] absolutely, not allegedly, took the Cell Phone[.]" These
inconsistencies were properly the subject of cross-examination, but they do
not render the Circuit Court's FOFs clearly erroneous.
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The challenged FOFs were supported by the evidence
before the Circuit Court at the time of the court's ruling,
although Tooher later presented some evidence in his Motion to
Reconsider the Motion to Dismiss in the form of a declaration
from Tooher and documents from his civil action against Martinez.
However, Tooher's declaration did not identify what exculpatory
evidence was allegedly contained on the cellular phone or in the
surveillance video. Instead, Tooher stated generally that the
cellular phone "contained messages, photos, and videos . . . that
exonerate me" and the video surveillance "would have shown anyone
outside the front door of my cabin, as well as anyone who entered
my cabin while I was in custody." Likewise, Martinez's
responses in the civil litigation, including referring to himself
as a State witness, did not render FOFs 16 and 17 clearly
erroneous.4
The Circuit Court's COLs were supported by its FOFs and
correctly stated the rule of law. COL 3 accurately summarized
the supreme court's holding in Matafeo. COL 5 accurately stated
that Tooher did not present any evidence as to what exculpatory
communications were contained on his cellular phone.5 COL 6 was
supported by the Circuit Court's finding that Detective Lee and
4
There is evidence in the record that Martinez located Tooher's
cellular phone, but there is no clear evidence (a) that Martinez "took" the
phone, and/or (b) that Martinez and/or HPD took possession of Tooher's phone.
5
Even considering the evidence presented in Tooher's Motion to
Reconsider the Motion to Dismiss, we conclude that the Circuit Court's COL 5
was correct.
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Corporal Shiraishi made the good faith decision to only recover a
portion of the footage available and that Tooher did not present
any evidence as to the specific exculpatory information allegedly
contained on the overwritten video footage. In COLs 7, 9, 10,
and 11, the Circuit Court applied the applicable case law to its
FOFS and concluded that the loss of the video surveillance
footage and Tooher's cellular phone were not "so critical to
[Tooher's] defense as to make a criminal trial fundamentally
unfair without it." We conclude that the Circuit Court's COLs
are supported by its FOFs, that it applied the correct rule of
law, and accordingly, the FOFs and COLs will not be overturned.
(2) Tooher also argues that the handwritten note
should be suppressed because Martinez and Detective Lee conspired
to enter and search Tooher's cabin, and that Martinez did so as
an agent of the State. To support his argument, Tooher relies,
inter alia, on Martinez's responses in Tooher's civil action
against him. Tooher specifically argues that the following is
evidence of Martinez's role as an agent of the State:
So, the responsibility [to care for Tooher's dogs after his
arrest] went to Glenn Martinez, who contacted the police and
explained the situation. It was decided to invite William
Tooher's sister Christine or friend Kathleen Connor to take
the dogs. Christine originally, agreed and it was okay by
the police.
The Fourth Amendment protects individuals against
unreasonable searches and seizures by the government or its
agents. State v. Boynton, 58 Haw. 530, 534-35, 574 P.2d 1330,
1333-34 (1978). "[W]here private individuals 'act as agents of
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the police . . . the full panoply of constitutional provisions
and curative measures applies.'" State v. Kahoonei, 83 Hawai#i
124, 127, 925 P.2d 294, 297 (1996) (quoting Boynton, 58 Haw. at
536, 574 P.2d at 1334)). In determining whether a private
individual acted as an agent of the government, courts consider
the totality of the circumstances and examine the relevant
government actions to determine whether government actions
rendered the "otherwise private individual a mere arm, tool, or
instrumentality of the state." Id. at 130, 925 P.2d at 300. As
part of the totality of the circumstances analysis, courts
consider several factors, "including whether the private
individual: (1) was actively recruited by a governmental agency
to assist in its investigations; (2) was directed by a government
agent; (3) acted for a private purpose; and (4) received any
payment for his or her services." State v. Locquiao, 100 Hawai#i
195, 204, 58 P.3d 1242, 1251 (2002) (citing Kahoonei, 83 Hawai#i
at 127, 925 P.2d at 297)).
In Kahoonei, the supreme court held that the
defendant's wife was an agent of the government when she
retrieved a handgun and ammunition from Kahoonei's bedroom.
Kahoonei, 83 Hawai#i at 131, 925 P.2d at 301. There, police told
Kahoonei's wife that a search warrant "could be gotten to search
the house" and that a search "would be done anyway." Id. The
supreme court highlighted that when a police officer "accompanied
Mrs. Kahoonei to Kahoonei's bedroom and stood in the doorway
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watching her retrieve the handgun and ammunition, [the officer]
knew that Mrs. Kahoonei was engaging in an activity that a police
officer could not effect without a search warrant." Id.; see
also Boynton, 58 Haw. at 536-37, 574 P.2d at 1334-35 (holding
that an informant recruited and paid by police was an agent of
the government when he trespassed on the defendant-appellee's
property and searched an area of their property enclosed by a
high fence).
Private individuals are not, however, government agents
when they act on their own initiative. State v. Araki, 82
Hawai#i 474, 481, 923 P.2d 891, 898 (1996). In Araki, the
defendant rented explicit adult videos to minors. Id. at 476,
923 P.2d at 893. One of the minors' mother "acting on her own
initiative, secured the videotape and voluntarily transferred its
possession to the police," and as such, "there was no seizure
within the meaning of the fourth amendment." Id. at 481, 923
P.2d at 898; see also Coolidge v. New Hampshire, 403 U.S. 443,
488-89 (1971) (holding that the suspect's wife was not an agent
of the government where the police asked her whether guns were in
the home and the wife responded affirmatively, then offered to
let the police take the guns and various articles of her
husband's clothing).
Similarly, in Locquiao, the defendant entered a local
pool hall and walked directly into the single-stall bathroom.
Locquiao, 100 Hawai#i at 199, 58 P.3d at 1246. Young Soo Kim
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(Kim), the owner of the pool hall, followed him, demanded he open
the door, and observed Locquiao put an item in his pocket. Id.
Kim discovered the item was a glass pipe, detained Locquiao, and
called the police. Id. Locquiao moved to suppress the evidence
and argued that Kim had previously entered into a plea agreement
with the Honolulu Department of the Prosecuting Attorney that
required Kim to actively assist law enforcement agencies in any
narcotics investigation. Id. at 200, 58 P.3d at 1247. At a
hearing on the motion to suppress, Kim testified that he had
voluntarily detained Locquiao "as an American citizen," not in
his role as an informant. Id. The HPD officer who handled Kim
as an informant additionally testified that Kim had terminated
all contact with HPD prior to the incident, that he had acted
"strictly on his own," that he had not requested nor received
money in exchange for his actions, and that Kim's role as an
informant focused on large-scale drug operations, not small
possession cases. Id.
The supreme court held that "Kim's actions in detaining
and searching Locquiao were private in nature and, therefore,
immune from constitutional scrutiny." Id. at 204-05, 58 P.3d at
1251-52. In doing so, it reasoned that Kim was in breach of his
plea agreement when he detained Locquiao, he did not inform his
HPD handler of his actions until nearly one month after the
incident, and therefore it was "simply not possible that Kim's
detention and search of Locquiao was directed by a government
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agent pursuant to Kim's plea agreement." Id. at 205, 58 P.3d at
1252.
Here, the Circuit Court evaluated the totality of the
circumstances and found that Martinez was not rendered "a mere
arm, tool, or instrumentality of the state." The Circuit Court's
FOFs 6, 7, 9, and 11 in the FOFs, COLs, and Order Denying Second
Motion to Suppress (and their subparagraphs) were supported by
substantial evidence that is of sufficient quality and probative
value to enable a person of reasonable caution to support a
conclusion.6 See State v. Yamashita, 151 Hawai#i 390, 396-97,
515 P.3d 207, 213-14 (2022). Detective Lee and Corporal
Shiraishi testified that they did not direct Martinez to enter
Tooher's cabin. Both HPD officers additionally testified that
they did not direct Martinez to recover evidence on behalf of
HPD. The only direction that Martinez received from HPD was
related to HPD's recovery of footage from the subject video
surveillance system. And while Tooher attempts to characterize
Martinez's cooperation with HPD as evidence of Martinez being a
State agent, the cooperation in this case does not render
Martinez "a mere arm, tool, or instrumentality of the state."
See Locquiao, 100 Hawai#i at 205, 58 P.3d at 1252.
6
In FOFs 10 and 12, the Circuit Court found Detective Lee and
Corporal Shiraishi's testimony credible. We again decline to pass upon the
trial judge's decisions with respect to witness credibility and the weight of
the evidence. Kwong, 149 Hawai#i at 112, 482 P.3d at 1073.
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COLs 8 (including its subparagraphs), 9, and 10 were
supported by the FOFs and correctly applied the rule of law. The
Circuit Court distinguished this case from Kahoonei. In COL 8,
the Circuit Court evaluated the totality of the circumstances and
applied the Kahoonei factors to the immediate case. In COLs 9
and 10, the Circuit Court concluded that, based on the totality
of the circumstances, Martinez acted "on his own accord" and had
not been rendered "a mere arm, tool, or instrumentality of the
state," and thus did not act as an agent of the State. We
conclude that the Circuit Court's COLs were supported by its FOFs
and the application of the correct rule of law.
For these reasons, we affirm the Circuit Court's
October 15, 2021 FOFs, COLs, and Order Denying Motion to Dismiss
and October 15, 2021 FOFs, COLs, and Order Denying Second Motion
to Suppress.
DATED: Honolulu, Hawai#i, October 21, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Myles S. Breiner,
Kyle T. Dowd, /s/ Katherine G. Leonard
Sean Fitzsimmons, Associate Judge
(Law Offices of Myles S.
Breiner & Associates), /s/ Derrick H.M. Chan
for Defendant-Appellant. Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.
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