State v. Cabagbag

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCWC-30682
17-MAY-2012
09:40 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

STEVE C. CABAGBAG, JR., Petitioner/Defendant-Appellant.

NO. SCWC-30682

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30682; CR. NO. 10-1-0240)

May 17, 2012

OPINIONS OF THE COURT
(By: Recktenwald, C.J., Nakayama, Acoba,
Duffy, and McKenna, JJ.)

Petitioner/Defendant-Appellant Steve C. Cabagbag, Jr.

(Petitioner) filed an application for writ of certiorari

(Application) on October 11, 2011 in this court, seeking review

of the July 13, 2011 judgment of the Intermediate Court of

Appeals (ICA), filed pursuant to its June 27, 2011 Summary
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Disposition Order,1 State v. Cabagbag, No. 30682, 2011 WL 2547987

(App. June 27, 2011) (SDO), affirming the Judgment of Conviction

and Probation Sentence filed by the circuit court of the first

circuit (the court).2

PART I: EYEWITNESS IDENTIFICATION JURY INSTRUCTION REQUIREMENT
(By: Acoba, J., with whom all justices concur)

It is concluded unanimously that (1) in criminal cases,

the circuit courts must give the jury a specific eyewitness

identification instruction whenever identification evidence is a

central issue in the case, and it is requested by the defendant,3

(2) a circuit court may, in the exercise of its discretion, give

the instruction if it believes the instruction is otherwise

warranted in a particular case; and (3) the instruction set forth

in this opinion is adopted as a model charge.

A.

Petitioner allegedly stole a truck from a storage

facility on February 3, 2010, as well as several tools from a

construction site on February 18, 2010. On February 22, 2010,

Respondent/Plaintiff-Appellee State of Hawai#i (Respondent)

1
The Summary Disposition Order was filed by Presiding Judge Daniel
R. Foley and Associate Judges Lawrence M. Reifurth and Lisa M. Ginoza.

2
The Honorable Karen S. S. Ahn presided.

3
As set forth in Part III, the dissent would hold that the
instruction should be given sua sponte, i.e., even if not requested by the
defendant.

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charged Petitioner by felony information with two counts: (1)

Unauthorized Control of a Propelled Vehicle, HRS § 708-836 (Supp.

2010)4; and (2) Theft in the Second Degree, HRS § 708-831 (Supp.

2010)5. The court held a two-day jury trial that began on May 18,

2010.

1.

In its opening statement, Respondent stated, in

relevant part, that the evidence would show that Honolulu Police

Department (HPD) Officer Eutiquito Tomimbang (Officer Tomimbang)

identified Petitioner as the man he saw driving a stolen truck

that was discovered with stolen tools. The defense maintained

that Officer Tomimbang’s identification was unreliable, and

claimed that Officer Tomimbang would only testify that “he s[aw]

a male in there, a local male, short dark hair. That’s the

4
HRS § 708-836 provides in relevant part:

§ 708-836. Unauthorized control of propelled vehicle.
(1) A person commits the offense of unauthorized control of
a propelled vehicle if the person intentionally or knowingly
exerts unauthorized control over another’s propelled vehicle
by operating the vehicle without the owner’s consent or by
changing the identity of the vehicle without the owner’s
consent.
(2) “Propelled vehicle” means an automobile, airplane,
motorcycle, motorboat, or other motor-propelled vehicle.

5
HRS § 708-831 provides in relevant part:

§ 708-831. Theft in the second degree. (1) A
person commits the offense of theft in the second
degree if the person commits theft:
(a) Of property from the person of another;
(b) Of property or services the value of which
exceeds $300[.]

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description. That’s what he sees. It’s dark, clearly at 1:07 in

the morning.”

2.

During trial, the jury heard the pertinent evidence

that follows. Leak Master Roofing and Waterproofing (“Leak

Master”) owned a white Ford truck with the license plate number

221-TRD. Around 3:30 p.m. on January 29, 2010, Matthew Kotar

(Kotar), Leak Master’s general manager, parked the truck for the

weekend in the company’s storage “cave” at Waikele Self-Storage

(“Waikele”) in Honolulu.6 Kotar and his foreman were the only

persons who had access to the truck’s keys, and only Kotar was

authorized to drive the vehicle.

On February 3, 2010, Kotar received a phone call from

Waikele. Kotar was told that the truck ran through the front

entrance of the facility. Normally, Waikele requires all persons

driving vehicles out of the facility to stop and provide

identification. When Waikele’s security guards asked the person

driving Leak Master’s truck to stop, the driver sped off.

After receiving the phone call, Kotar went to Waikele

to verify that his truck was no longer in its “cave.” Kotar

determined that the truck was missing. After contacting all of

Leak Master’s employees to ensure that none had taken the truck

6
The storage units are referred to as “caves” because they used to
be military caves that were converted into storage facilities.

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without his knowledge, Kotar filed a police report stating that

the truck had been stolen. Kotar heard nothing from the police

regarding the truck until February 18, 2010.

Around 1:00 a.m. on February 18, 2010, Officer

Tomimbang was on patrol in the Pearl City Highlands area. At

1:12 a.m. he learned that a caller had reported that the “cattle

gate” (gate) at Newtown Recreation Center (recreation center),

which is usually kept closed, was open. Another officer, Officer

Enrico Domingo (Officer Domingo), was the first to arrive at the

scene. Officer Tomimbang arrived shortly after. He noticed that

the gate was completely open and that there was only one lock on

the padlock even though the gate is usually secured with two

locks.

Having verified that the recreation center, which is

located approximately 50 yards from the gate, was secured,

Officer Tomimbang and Officer Domingo proceeded to the

construction area, approximately 20 yards from the gate. At the

time, the construction area was occupied by the Frank Coluccio

Construction Company (Frank Coluccio Construction). Officer

Tomimbang noticed that two of the containers used to store

equipment in the construction area were open. Officer Tomimbang

asked dispatch to contact a representative from the company to

let them know that there was a possible break-in.

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Around 1:40 a.m., Officer Tomimbang was standing near

the office trailer at the construction site when he heard the

sound of a large truck coming up Ka’ahele Street, which is

adjacent to the gate. Officer Tomimbang assumed the truck had

been sent by Frank Coluccio Construction, so he walked toward the

fence near Ka’ahele Street. From his location near the fence,

Officer Tomimbang could observe Ka’ahele Street. A street light

lamp was located on the side of the street where Officer

Tomimbang was standing. Another street lamp was located on the

opposite side of the street.

Officer Tomimbang saw the truck driving slowly up

Ka’ahele Street. He testified that, although his flashlight was

off, he got a good look at the truck driver’s face because the

street was well-lit and the driver stuck his face out the window

and looked in the officer’s direction. Officer Tomimbang watched

as the truck continued to drive up Ka’ahele Street and turned

right on Lulu Street. The truck then stopped and parked on Lulu

Street, approximately 30 feet from Ka’ahele Street. During

trial, Respondent introduced several photographs that purportedly

depicted the way Ka’ahele Street would have appeared to Officer

Tomimbang on February 18, 2010. Defense counsel objected on the

ground that the photos were misleading because they were taken

with a camera that had its flash setting “on,” and therefore may

have depicted more light than was available to Officer Tomimbang

on the night in question. The court admitted the photographs.

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When Officer Tomimbang saw the truck continue on to

Lulu Street, he walked toward a location behind the fence from

which he could get a better view of the truck. Standing just

behind the fence, about 60 to 70 yards from where the truck was

parked, Officer Tomimbang saw a man exit the truck’s driver’s

side door and head toward the construction site. The man

approached the gate, closed it, and continued walking toward

Officer Tomimbang. Once the man was within 20 feet, Officer

Tomimbang shone his flashlight toward the man. According to

Officer Tomimbang, the man froze for a few seconds, looked

straight at him, and then took off running. Officer Tomimbang

testified that although it was dark because there was “no

lighting” where he was standing, he saw the man’s face clearly

and noticed that it was the same man who had driven by earlier on

the truck. During cross-examination, defense counsel asked

Officer Tomimbang about the lighting conditions in the area.

Specifically, defense counsel asked Officer Tomimbang about the

sources of lighting, the strength of lighting, and whether the

lights were functioning. Officer Tomimbang testified that

although he was unsure as to the specific sources of lighting,

“the street was pretty bright from the street lighting.” Officer

Domingo, who was near Officer Tomimbang, testified that he did

not get a good look at the man.

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As soon as the man sped off, Officer Tomimbang said,

“Hey, police. Stop.” Officer Tomimbang jumped over the fence and

followed the man down Lulu Street. The man then dove into some

hedges that led into a residential neighborhood. Officer

Tomimbang decided not to follow and instead asked several other

officers who had since arrived at the scene to form a perimeter

to search the neighborhood. Officer Tomimbang believed that the

man would not be able to escape because the neighborhood was

surrounded by steep embankments. Officer Tomimbang then went

over to the truck and asked dispatch to run its license plates.

Dispatch indicated that the truck had been stolen.

Several other officers arrived within a few minutes.

Approximately eleven officers canvassed the neighborhood.

Officer Tomimbang described the suspect to them as a “local male,

dark clothing,” or possibly “local male, maybe short dark hair,

dark clothing.”

Sergeant Michael Kahikina was one of the officers who

participated in the search. As he was walking along the back of

a residence in the neighborhood, he flashed his light on a

drainage ditch and observed that a man was lying sideways on the

ditch. Sergeant Kahikina said, “Hey, police. Let me see your

hands. Don’t move.”

There was conflicting testimony during trial regarding

exactly what happened next. Sergeant Kahikina first testified

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that the man in the ditch tried to run and had to be tackled.

According to Sergeant Kahikina, the man then stated, “I never do

nothin’,” and became compliant. On cross-examination, however,

Sergeant Kahikina acknowledged that the man had not attempted to

run but rather had tried to get up. Sergeant Kahikina put his

hand on the suspect and held him down. Sergeant Kahikina then

began calling out that he had apprehended a suspect. The suspect

was wearing a brown shirt, dark blue jeans, and “possibly a

hood.”

Officer Tomimbang identified the suspect as the man

whom he had seen driving the truck earlier and who had walked

toward the construction area at the recreation center. In court,

Officer Tomimbang identified the man as Petitioner. During

cross-examination, Officer Tomimbang testified that his initial

identification of the man in the ditch had taken place

approximately thirteen minutes from the time he saw the man

walking toward the construction area. Sergeant Kahikina also

identified Petitioner in court as the man who was lying on the

ditch.

After the suspect was arrested, the officers

investigated the scene further. Officer Tomimbang dusted the

lids of the open containers at the construction site, but found

no fingerprints. Officers Tomimbang and Domingo also examined

the white truck. The truck’s license plate number was 221-TRD,

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the same as the truck reported stolen from Waikele by Kotar on

February 3, 2010. No fingerprints were found on the truck.

In the truck, the police found a duffel bag containing

a combination lock that had been cut and some bolt-cutters.

Richard Shiroma, an employee of the recreation center, identified

the lock as the combination lock that was used to secure the

gate. The police also found a number of construction tools that

were later identified by Grant Kaulback, an employee of Frank

Coluccio Construction, as belonging either to himself or to Frank

Coluccio Construction. Respondent introduced evidence that the

value of the items, together, exceeded $300.00.

The police, having determined that the truck matched

the description of the truck reported stolen by Kotar, called

Kotar and asked him to identify the vehicle. Kotar identified

the truck as belonging to Leak Master. Kotar testified at trial

that the truck was “pretty beat up,” but was still operable.

3.

After Respondent presented its evidence, Petitioner

asked the court to enter a judgment of acquittal. The court

denied the request. The court then instructed the jury.

Relevant here, the court discussed the prosecution’s burden of

proof, explaining that the jury had to presume that Petitioner

was innocent “unless and until the prosecution proves the

defendant guilty beyond a reasonable doubt.” The court also

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instructed the jury as follows:
It is your exclusive right to determine whether and to what
extent a witness should be believed and to give weight to
his or her testimony accordingly. In evaluating the weight
and credibility of a witness’s testimony, you may consider
the witness’s appearance and demeanor; the witness’s manner
of testifying; the witness's intelligence; the witness’s
candor or frankness or lack thereof; the witness’s interest,
if any, in the result of this case; the witness’s relation,
if any, to a party; the witness's temper, feeling, or bias
if any has been shown; the witness’s means and opportunity
of acquiring information; the probability or improbability
of the witness’s testimony; the extent to which the witness
is supported or contradicted by other evidence; the extent
to which the witness has made contradictory statements
whether in trial or at other times; and all other
circumstances surrounding the witness and bearing upon his
or her credibility. Now inconsistencies or discrepancies in
the testimony of a witness or between the testimony of
different witnesses may or may not cause you to discredit
such testimony. In weighing the effect of inconsistencies or
discrepancies, whether they occur within one witness’s
testimony or as between different witnesses, consider
whether they concern matters of importance or only matters
of unimportant detail and whether they result from innocent
error or deliberate falsehood. If you find that a witness
has deliberately testified falsely to any important fact or
deliberately exaggerated or suppressed any important fact,
then you may reject the testimony of that witness except for
those parts which you nevertheless believe to be true. You
are not bound to decide a fact one way or another just
because more witnesses testify on one side than the other.
It is testimony that has a convincing force upon you that
counts, and the testimony of even a single witness, if
believed, can be sufficient to prove a fact.

Subsequently, the parties delivered their closing

arguments. During its closing argument, Respondent stressed that

“Officer Tomimbang saw [Petitioner] with his own eyes as he was

driving the vehicle,” and that Officer Tomimbang “observed

[Petitioner] walk up to him after [Petitioner] . . . walked

towards the Newtown area which is where Officer Tomimbang flashed

his flashlight to his face seeing it’s the same person.”

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Respondent also stated that each “witness testified credibly to

what he saw on the date of the incident.”

During its closing argument, the defense challenged

Officer Tomimbang’s eyewitness identification testimony as

follows:
[Officer Tomimbang’s] observation was actually not
very good. Let’s look at the lighting here. The
testimony is that there’s a light. And there’s pictures
where you can see this light post on the street. The
testimony is also that his vantage point was behind this
post in a very dark courtyard -- uh, construction yard.
No matter all the testimony about where the light was,
it’s clear throughout his testimony in the courtyard
behind this light he indicated several times that it was
really dark.

And let’s look at the time he had to observe what
he observed. He was up on this courtyard on a hill
investigating . . . . [A]nd they hear a truck coming up.
When the truck comes up, both Officers Tomimbang and
Domingo indicated there was nothing really unusual.
Officer Tomimbang said, well, I thought it was maybe one
of the trucks with the employees coming. So their focus
was not on this truck.

Did Officer Tomimbang see this truck and perhaps
sees this driver? I think he did. . . . Did he get a
good look? No. Look at the distance. Officer Tomimbang
laid out the scene for you. Two lanes, median lane,
turning lane, and two more lanes, sidewalk, hill, fence,
grass area. This is all distance. This is at night. This
is one, two o’clock in the morning. . . .

Now from an angle [Officer Tomimbang] says he saw
the person coming out [of the truck]. I don’t think so.
There’s hedges in that corner, and the hill. That Lulu
Street, it goes down. And he -- this truck was parked 30
feet into the street. Any other lighting? Not in the
area. . . .

Now you got some pictures . . . it looks pretty
lit. But it’s not lit. That’s not how it looked like
that night. It looked like that because they’re using
flash on the camera. That is not how it looked when the
officers were there investigating . . . .

Other reasons to question the clarity of Officer
Tomimbang. When he says he observed this male walk
towards him and he put his flashlight to this person and

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he said he got a good look, no, he didn’t. He got a look
but not a good look. His description, what he gave to
dispatch . . . . He got a local male, dark hair, short
hair. That’s it.

This is an officer with a lot of training . . .
. They know what to put in there. . . . They know to
put as much detail as they can. And not even to
dispatch. Somewhere in their report. And it was not
there because there’s nothing to add. They didn’t get
a good look. . . . .

Officer Domingo added maybe about 5'8. But he says
he didn’t get a good look either. He didn’t get to see
the face. There’s testimony that says that Officer
Domingo recovered a hat. Sergeant Kahikina said this guy
was wearing a jacket. There’s a lot more stuff that
could have been mentioned if they saw it.

If this Officer Tomimbang saw this guy and he was
that close, he would have had that information. He
didn’t because he didn’t get a good look. I call it the
“Aha factor.” You got this very broad description that
fits. You’re in Hawai#i, in Aiea, this area. It fits a
lot of people.

(Emphases added.) Neither the court’s oral instructions nor its

written instructions included a specific instruction concerning

eyewitness identification, and neither party requested one.

On May 19, 2010, the jury found Petitioner guilty of

the two charged offenses. On July 19, 2010, the court sentenced

Petitioner to two concurrent five-year terms of probation.

B.

Before the ICA, Petitioner argued that the court

committed plain error by failing to provide a cautionary

instruction stating the factors to be considered by the jury in

assessing eyewitness identification evidence. In a summary

disposition order, the ICA held that whether to give a cautionary

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instruction was within the court’s discretion and that, in this

case, defense counsel’s opening and closing statements, her

cross-examination of Officer Tomimbang, and the court’s general

instructions adequately directed the attention of the jury to the

identification evidence. The ICA therefore affirmed Petitioner’s

conviction.

C.

Petitioner presents the following question in his

Application to this court:
Whether the ICA gravely erred in holding that the circuit court
did not commit plain error by failing to provide a jury
instruction regarding eyewitness identification because the
opening statement by defense counsel, the cross-examination of
Officer Eutiquito Tomimbang Jr. of the Honolulu Police
Department (“HPD”), defense counsel’s closing argument, and the
general jury instructions adequately directed the attention of
the jury to the identification evidence.

Respondent did not file a Response to the Application.

D.

Petitioner argues that a cautionary jury instruction

regarding eyewitness identification should be required in any

case in which eyewitness identification is a “critical” or

“central” issue.7 Petitioner recognizes that this court has

repeatedly held that the giving of special instructions regarding

eyewitness identification is within the discretion of the trial

court. (Citing State v. Padilla, 57 Haw. 150, 162, 552 P.2d 357,

7
However, at oral argument, Petitioner contended that the
instruction should instead be given if there is any evidence that eyewitness
identification evidence is a factor in the prosecution.

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365 (1976); State v. Pahio, 58 Haw. 323, 331-32, 568 P.2d 1200,

1206 (1977); State v. Okumura, 78 Hawai#i 383, 404-05, 894 P.2d

80, 101-02 (1995); State v. Vinge, 81 Hawai#i 309, 316-17, 916

P.2d 1210, 1217-18 (1996)). However, Petitioner urges this court

to reconsider those decisions in light of the widely-recognized

perils of eyewitness identification testimony. Petitioner cites

to several other states that have abandoned the discretionary

approach and adopted the position that a cautionary instruction

must be given whenever an eyewitness’s identification is the

central issue in the case. (Citing State v. Long, 721 P.2d 483

(Utah 1986); State v. Warren, 635 P.2d 1236 (Kan. 1981);

Commonwealth v. Rodriguez, 391 N.E.2d 889 (Mass. 1979)).

In the alternative, Petitioner argues that if this

court does not adopt a rule requiring circuit courts to give a

specific instruction whenever eyewitness identification is the

central issue in the case, we should hold that the ICA

nevertheless gravely erred in concluding that the court had not

committed plain error in not exercising its discretion to provide

such an instruction.

E.

1.

In 1976, this court for the first time considered a due

process challenge to eyewitness identification testimony in

Padilla, 57 Haw. at 153-55, 552 P.2d at 360-61. Following the

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rule announced by the United States Supreme Court in Simmons v.

United States, 390 U.S. 377, 384 (1968), and Neil v. Biggers, 409

U.S. 188 (1972), Padilla held that the use of unreliable

eyewitness identification testimony could violate a defendant’s

due process rights, but that whether constitutional rights were

affected depended on the “totality of the circumstances.”

Padilla, 57 Haw. at 153-55, 552 P.2d at 360-61. The reliability

of eyewitness testimony was said to depend upon:
the opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of attention,
the accuracy of the witness' prior description of the
criminal, the level of certainty demonstrated by the
witness during the confrontation, and the length of time
between the crime and the confrontation[.]

See id. (citing Biggers, 409 U.S. at 199-200).

Simmons and Biggers, on which Padilla relied, were the

Supreme Court’s responses to the risk that unreliable eyewitness

testimony might result in misidentification, undermining the

fairness of trial. See Manson v. Brathwaite, 432 U.S. 98, 113

(1977). The Court was unwilling, however, to go so far as to

adopt a blanket rule barring eyewitness testimony, even in cases

where the police employed unduly suggestive identification

procedures. Id. at 112. The Court expressed concern that the

exclusion of “reliable” eyewitness testimony might result in the

“guilty going free.” Id. Padilla, following the Court’s lead,

also left to the circuit court’s discretion the decision of

whether to give a specific jury instruction in cases where

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eyewitness testimony is “a key issue” in the case. Id. at 161-

62, 552 P.2d at 364-65. In exercising that discretion, Padilla

stated that circuit courts had to consider whether cross-

examination, the arguments made to the jury, and the rest of the

jury instructions adequately directed the jury’s attention to the

identification testimony, rendering the more specific instruction

unnecessary. Id.

More recently, in Perry v. New Hampshire, 132 S. Ct.

716, 720-21 (2012), the Court held that the Due Process Clause

does not require a preliminary judicial inquiry into the

reliability of an eyewitness identification that was not procured

under unnecessarily suggestive circumstances arranged by law

enforcement. Justice Sotomayor dissented and would have held

that it is not necessary for law enforcement to create the

suggestive circumstances in order for a preliminary judicial

inquiry to be warranted. Id. at 733-34 (Sotomayor, J.,

dissenting).

2.

Since the first cases addressing the reliability of

eyewitness testimony were decided in the 1970s, a robust body of

research in the area of eyewitness identification has emerged.

Many studies now confirm that false identifications are more

common than was previously believed. For example, Professor

Brandon L. Garrett concluded in a study involving 250 exonerated

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defendants that “[e]yewitnesses misidentified 76% of the

exonerees (190 of 250 cases).” Brandon L. Garrett, Convicting

the Innocent: Where Criminal Prosecutions Go Wrong, 48 (2011).

Professor Garrett’s original study of 200 such cases in 2008

concluded that eyewitness identification testimony was the

leading contributing factor to wrongful convictions and was four

times more likely to contribute to a wrongful conviction than a

false confession. Brandon L. Garrett, Judging Innocence, 108

Colum. L. Rev. 55, 76 (2008). Other studies have reached similar

results. See, e.g., Edward Connors, et. al., Convicted by Juries,

Exonerated by Science: Case Studies in the Use of DNA Evidence to

Establish Innocence after Trial, 15, 96 (1996), available at

https://www.ncjrs.gov/pdffiles/dnaevid.pdf (reviewing 28 sexual

assault cases in which defendants were later exonerated and

concluding that all cases, except those involving homicide,

“involved victim eyewitness identification both prior to and at

trial,” and that in those cases “eyewitness testimony was the

most compelling evidence”); Gary L. Wells, et. al.,

Recommendations for Properly Conducted Lineup Identification

Tasks, in Adult Eyewitness Testimony: current Trends and

Developments 223-24 (1994) (studying over 1,000 wrongful

convictions and concluding that recall errors by witnesses were

the leading cause of such convictions).

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Researchers have found that several variables tend to affect

the reliability of an eyewitness’s identification. These include

the passage of time,8 witness stress,9 duration of exposure,10

distance,11 “weapon focus”12 (visual attention eyewitnesses give to

a perpetrator’s weapon during crime), and cross-race bias13

(eyewitnesses are more accurate at identifying persons of their

own race). Juries, however, may not be aware of the extent to

which these factors affect an individual’s ability to make an

accurate identification, and thus tend to “over believe” witness

identification testimony. In a 1983 study, for example,

researchers presented individuals with crime scenarios derived

from previous empirical studies. See Brigham & Bothwell, The

Ability of Prospective Jurors to Estimate the Accuracy of

Eyewitness Identifications, 7 Law & Hum. Behav. 19, 22-24 (1983).

Researchers found that the study’s respondents estimated an

average accuracy rate of 71 percent for a highly unreliable

8
See Cutler, A Sample of Witness, Crime, and Perpetrator
Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub.
L. Pol’y & Ethics J. 327, 336 (2006).
9
Deffenbacher, et. al., A Meta-Analytic Review of the Effects of
High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687, 694 (2004)
(analyzing 27 studies).
10
See Memon, et. al., Exposure Duration: Effects on Eyewitness
Accuracy and Confidence, 94 British J. Psychol. 339, 345 tbl. 1 (2003).
11
See Loftus & Harley, Why is it Easier to Identify Someone Close
Than Far Away?, 12 Psychonomic Bull. & Rev. 43, 63 (2005) (concluding that for
people with normal vision the ability to identify faces begins to diminish at
approximately 25 feet).
12
See Wells, et. al., Eyewitness Evidence: Improving Its Probative
Value, 7 Psychol. Sci. in Pub. Int. 45, 53 (2006).
13
See Meissner & Brigham, Thirty Years of Investigating the Own-Race
Bias in Memory for Faces, 7 Psychol., Pub. Pol’y & L. 3, 15, 21 (2001).

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scenario in which only 12.5 percent of eyewitnesses had in fact

made a correct identification. See id.

Empirical research has also undermined the common sense

notion that the confidence of the witness is a valid indicator of

the accuracy of the identification. See Long, 721 P.2d at 490

(explaining that the accuracy of an identification is only poorly

associated with witness confidence and is sometimes inversely

associated with witness confidence) (citing K. Deffenbacher,

Eyewitness Accuracy and Confidence: Can We Infer Anything About

Their Relationship? , 4 Law & Hum. Behav. 243 (1980); Lindsay,

et. al., Can People Detect Eyewitness-Identification Accuracy

Within and Across Situations?, 66 J. Applied Psych. 79, 80-82

(1981)). However, courts and juries continue to place great

weight on the confidence expressed by the witness in assessing

reliability. See Cutler & Penrod, Jury Sensitivity to Witness

Identification Testimony, 14 Law & Hum. Behav. 185, 185 (1990)

(finding that what most affects jurors’ assessment of witness

identification testimony is the confidence expressed by the

witness).

3.

One of the justifications often advanced for the continued

use of eyewitness testimony despite its well-documented

weaknesses is the proposition that any danger that a jury might

give undue weight to an unreliable identification can be

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mitigated by the use of “appropriate jury instructions,” along

with the “strong presumption” that juries will follow such

instructions.14 See, e.g., United States v. Zeiler, 470 F.2d 717,

720 (3d Cir. 1972); see also State v. Klinge, 92 Hawai#i 577, 592,

944 P.2d 509, 524 (2000) (“[J]uries are presumed to follow all of

the trial court’s instructions.”) (internal quotations and

citations omitted).

In Perry, the Court grounded its holding that due process

does not require a preliminary inquiry into the reliability of an

eyewitness identification not arranged by law enforcement, in

part, on the fact that there are “safeguards built into [the]

adversary system that caution juries against placing undue weight

on eyewitness testimony of questionable reliability.” Perry, 132

S. Ct. at 728. According to the Court, one of these safeguards

is the use of “[e]yewitness-specific jury instructions, which

many federal and state courts have adopted, [which] likewise warn

the jury to take care in appraising identification evidence.”

Id. at 728-89.

In this regard, several other jurisdictions have decided to

abandon the discretionary approach to jury instructions and now

require trial courts to give a specific instruction whenever

eyewitness identification is central to the case and the

14
See also Brief for United States as Amicus Curiae Supporting
Respondent at 29-30, Perry, cert. granted, 131 S. Ct. 2932 (filed August 5,
2011) (No. 10-8974).

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defendant requests the instruction.15 For example, in Warren, the

Supreme Court of Kansas held that “in any criminal action in

which eyewitness identification testimony is a critical part of

the prosecution’s case and there is a serious question about the

reliability of the identification, a cautionary instruction

should be given[.]”16 635 P.2d at 1244 (emphasis added). That

court emphasized the need to recognize the “serious nature” of

the “problems inherent” in eyewitness identification testimony,

15
In Perry, the Court explained that many federal and state courts
have adopted jury instructions to warn the jury to take care in apprising
identification evidence. 132 S. Ct. at 728-29. The Court gave the following
as examples:

Model Crim. Jury Instr. No. 4.15 (CA3 2009); United States
v. Holley, 502 F.2d 273, 277–278 (C.A.4 1974); Pattern Crim.
Jury Instr. No. 1.29 (CA5 2001); Pattern Crim. Jury Instr.
No. 7.11 (CA6 2011); Fed.Crim. Jury Instr. No. 3.08 (CA7
1999); Model Crim. Jury Instr. for the District Courts No.
4.08 (CA8 2011); Model Crim. Jury Instr. No. 4.11 (CA9
2010); Crim. Pattern Jury Instr. No. 1.29 (CA10 2011);
Pattern Jury Instr. (Crim.Cases) Spec. Instr. No. 3 (CA11
2010); Rev. Ariz. Jury Instr., Crim., No. 39 (3d ed.2008); 1
Judicial Council of Cal.Crim. Jury Instr. No. 315 (Summer
2011); Conn.Crim. Jury Instr. 2.6–4 (2007); 2 Ga. Suggested
Pattern Jury Instr. (Crim. Cases) No. 1.35.10 (4th ed.2011);
Ill. Pattern Jury Instr., Crim., No. 3.15 (Supp.2011);
Pattern Instr., Kan.3d, Crim., No. 52.20 (2011); 1 Md.Crim.
Jury Instr. & Commentary §§ 2.56, 2.57(A), 2.57(B) (3d
ed.2009 and Supp.2010); Mass.Crim. Model Jury Instr. No.
9.160 (2009); 10 Minn. Jury Instr. Guides, Crim., No. 3.19
(Supp.2006); N.H.Crim. Jury Instr. No. 3.06 (1985);
N.Y.Crim. Jury Instr. “Identification—One Witness” and
“Identification—Witness Plus” (2d ed.2011); Okla. Uniform
Jury Instr., Crim., No. 9–19 (Supp.2000); 1 Pa. Suggested
Standard Crim. Jury Instr. No. 4.07B (2d ed.2010); Tenn.
Pattern Jury Instr., Crim., No. 42.05 (15th ed.2011); Utah
Model Jury Instr. CR404 (2d ed.2010); Model Instructions
from the Vt.Crim. Jury Instr. Comm. Nos. CR5–601, CR5–605
(2003); W. Va.Crim. Jury Instr. No. 5.05 (6th ed. 2003).

Id. at 729 n.7.
16
The Kansas model jury instruction is among the instructions cited
by the Court in Perry. 132 S. Ct. at 729 n.7.

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noting the “great volumes of articles on the subject[,]” and the

“potential for injustice.” Id. at 1239-42.

Likewise, the Supreme Court of Utah, concluding that

there is “no significant division of opinion on the issue” and

that “[t]he studies all lead inexorably to the conclusion that

human perception is inexact[,]” decided to adopt “a more rigorous

approach to cautionary instructions[.]”17 See Long, 721 P.2d at

488. That court explained that although research has

convincingly demonstrated the dangers of eyewitness

identification testimony, “[p]eople simply do not accurately

understand the deleterious effects that certain variables can

have on the accuracy of the memory processes of an honest

eyewitness.” Id. at 490. The Utah court therefore held that a

cautionary jury instruction was required whenever eyewitness

identification testimony is a central issue in the case and the

defendant requests the instruction. Id. at 492.

The Supreme Court of New Jersey also held that “[w]hen

identification is a ‘key issue,’ the trial court must instruct

the jury on identification, even if a defendant does not make

that request.” State v. Cotto, 865 A.2d 660, 665 (N.J. 2005).

In State v. Cromedy, that court more specifically held that when

cross-racial identification testimony is critical to the case and

17
The Utah model jury instruction is among the instructions cited by
the Court in Perry. 132 S. Ct. at 729 n.7.

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the identification is not corroborated, trial courts must give a

cautionary instruction. See 727 A.2d 457, 467-68 (N.J. 1999).

More recently, the New Jersey Supreme Court reconsidered its

position in light of additional research on cross-race bias and

decided to impose a more stringent standard.18 State v.

Henderson, 27 A.3d 872, 926 (N.J. 2011).

New Jersey trial courts are now required to give a

cautionary instruction “whenever cross-racial identification is

in issue at trial[,]” regardless of whether it is a “critical”

issue. Id. In fact, Henderson more broadly held that “enhanced

instructions [must] be given to guide juries about the various

factors that may affect the reliability of an identification in a

particular case.” Id. at 924. The instructions “are to be

included in the court’s comprehensive jury charge at the close of

evidence”--regardless of whether the defendant requests them.

See id. Accord Commonwealth v. Pressley, 457 N.E.2d 1119, 1121

(Mass. 1983) (when the facts permit it and the defendant requests

it, “[f]airness to a defendant compels the trial judge to give an

instruction on the possibility of an honest but mistaken

identification”).

F.

This court has repeatedly reaffirmed Padilla’s holding
18
Justice Sotomayor cites Henderson in her dissent in Perry in
discussing the strength of the empirical evidence that supports the
proposition that eyewitness misidentifications are a leading source of
wrongful convictions. Perry, 132 S. Ct. at 738 (Sotomayor, J., dissenting).

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that the decision to give a cautionary instruction is for the

trial court to make in the exercise of its discretion. See

Pahio, 58 Haw. at 331, 568 P.2d at 1206; Okumura, 78 Hawai#i at

404-05, 894 P.2d at 101-02; Vinge, 81 Hawai#i at 316-17, 916 P.2d

at 1217-18. But none of those cases have considered whether

Padilla’s holding should be re-examined in light of what is now

known about the weaknesses of eyewitness identification

testimony.

The reason stated in our case law in support of the

existing rule is, in essence, that a specific eyewitness

identification instruction would be superfluous in light of the

defendant’s opening statement, cross-examination of the witness,

and closing argument. See Okumura, 78 Hawai#i at 405, 894 P.2d at

80. But if the instruction is merely superfluous, then there is

no harm in giving the instruction when identification is a

critical issue. At most, giving the instruction would take a few

minutes of the court’s time. Warren, 635 P.2d at 1244.

Moreover, requiring trial courts to give cautionary

instructions rather than relying on defense counsel to point out

flaws in the witness’s testimony during opening statements,

cross-examination, or closing arguments has merit. Cross-

examination may not adequately apprise the jury of the factors it

should consider in assessing the reliability of eyewitness

identification testimony or of the deficiencies of eyewitness

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identification testimony. Additionally, court instructions are

more authoritative than lawyers’ opening statements and closing

arguments. Jurors may very well ignore counsel’s admonitions

about the factors that affect reliability, but the law generally

presumes that juries follow court instructions. See Klinge, 92

Hawai#i at 592, 944 P.2d at 524.

Without appropriate instructions from the court, the

jury may be left without sufficient guidance on how to assess

critical testimony, sometimes the only testimony, that ties a

defendant to an offense. Although a jury may intuit some of the

factors that affect the reliability of such testimony, this court

does not “rely on jurors to divine rules themselves from cross-

examination or summation.” Henderson, 27 A.3d at 296. “Even

with matters that may be considered intuitive [such as the

factors that affect the reliability of eyewitness testimony],

courts [should] provide focused jury instructions.” Id.

Most significantly, the impetus for a change in our

approach lies in the empirical research that reveals that people

generally do not understand all of the factors that affect the

reliability of an eyewitness identification. In her dissent in

Perry, Justice Sotomayor cited a great deal of the empirical

evidence that has called into question the reliability of

eyewitness identifications. 132 S. Ct. at 731-40. Justice

Sotomayor recounted how the Court’s precedents had “pointed to

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the ‘formidable’ number of ‘miscarriage[s] of justice from

mistaken identification’ in the annals of criminal law.” Id. at

731 (brackets in original) (citation omitted). Justice

Sotomayor then reasoned:
The empirical evidence demonstrates that eyewitness
misidentification is “‘the single greatest cause of wrongful
convictions in this country.’” Researchers have found that
a staggering 76% of the first 250 convictions overturned due
to DNA evidence since 1989 involved eyewitness
misidentification. Study after study demonstrates that
eyewitness recollections are highly susceptible to
distortion by postevent information or social cues; that
jurors routinely overestimate the accuracy of eyewitness
identifications; that jurors place the greatest weight on
eyewitness confidence in assessing identifications even
though confidence is a poor gauge of accuracy; and that
suggestiveness can stem from sources beyond
police-orchestrated procedures.

Id. at 738-39 (footnotes omitted).

It is apparent from both the majority’s opinion and

Justice Sotomayor’s dissent in Perry that, based on the empirical

studies, it cannot be assumed that juries will necessarily know

how to assess the trustworthiness of eyewitness identification

evidence. See id. Under these circumstances, we hold that when

eyewitness identification is central to the case, circuit courts

must give a specific jury instruction upon the request of the

defendant to focus the jury’s attention on the trustworthiness of

the identification.19 A circuit court may also give a specific

eyewitness instruction, in the exercise of its discretion, if it

19
As previously noted, the dissent would hold that the instruction
should be given sua sponte when eyewitness identification is central to the
case.

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believes the instruction is otherwise warranted in a particular

case.

G.

The following instruction, the earlier requested

version of which was cited in State v. Vinge, 81 Hawai#i 309, 314,

916 P.2d 1210, 1215 (1996), would appropriately address the

general concerns described above. The instruction cited in Vinge

is an older California model instruction, California Jury

Instructions Criminal (CALJIC) 2.29 (1988).20 Vinge does not

contain the entire instruction, but quotes only the factors the

jury should consider. See Vinge, 81 Hawai#i at 314-15, 916 P.2d

at 1215-16. The first paragraph of the instruction reproduced

below is part of an additional instruction given in Vinge, which

is necessary to alert the jury that the prosecution has the

burden of proving a defendant’s identity beyond a reasonable

doubt. The next two paragraphs, adopted with slight

modifications from the current California model instruction, are

quoted for the sake of completeness, and are followed by the

factors mentioned in Vinge.
[T]he burden of proof is on the prosecution with reference
to every element of a crime charged, and this burden
includes the burden of proving beyond a reasonable doubt the
identity of the defendant as the person responsible for the
crime charged.

You have heard eyewitness testimony identifying the

20
The new California model jury instruction, Judicial Council of
California Criminal Jury Instructions (CALCRIM) No. 315 (2011), is among the
instructions cited by the Court in Perry. 132 S. Ct. at 729 n.7.

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defendant. As with any other witness, you must decide
whether an eyewitness gave accurate testimony.

In evaluating identification testimony, consider the
following factors:

The opportunity of the witness to observe the alleged
criminal act and the perpetrator of the act;

The stress, if any, to which the witness was subject at the
time of the observation;

The witness’ ability, following the observation, to provide
a description of the perpetrator of the act;

The extent to which the defendant fits or does not fit the
description of the perpetrator previously given by the
witness;

The cross-racial or ethnic nature of the identification;

The witness’ capacity to make an identification;

[Evidence relating to the witness’ ability to identify other
alleged perpetrators of the criminal act;] 21

[Whether the witness was able to identify the alleged
perpetrator in a photographic or physical lineup;]

The period of time between the alleged criminal act and the
witness’ identification;

Whether the witness had prior contacts with the alleged
perpetrator;

The extent to which the witness is either certain or
uncertain of the identification;

Whether the witness identification is in fact the product of
his own recollection;

Any other evidence relating to the witness’ ability to make
an identification.

Id.; see also CALCRIM No. 315. By identifying this instruction

as sufficient to address the general concerns identified above,

we do not intend to preclude modification of this instruction or

the development of other related instructions. Accordingly, we

21
The bracketed portions of the instruction would only be given if
applicable.

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refer this instruction to the Committee on Pattern Criminal Jury

Instructions for future comments, suggestions, and any

recommended modifications.

/s/ Mark E. Recktenwald

/s/ Paual A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ James E. Duffy, Jr.

/s/ Sabrina S. McKenna

PART II: LIMITATION ON JURY INSTRUCTION RULE
AND APPLICATION TO THIS CASE
(By: Recktenwald, C.J., with whom Nakayama,
Duffy and McKenna, JJ., concur)

A. The new rule is applied prospectively and the instruction is
given at the request of the defendant

This court’s holding that “in criminal cases, the

circuit courts must give the jury a specific eyewitness

identification instruction whenever identification evidence is a

central issue in the case, and it is requested by the defendant,”

marks a departure from the prior approach in this jurisdiction.

Previously, the decision to give a special instruction

on eyewitness identification rested within the sound discretion

of the trial court. See Padilla, 57 Haw. at 162, 552 P.2d at

365; Pahio, 58 Haw. at 331, 568 P.2d at 1206; Okumura, 78 Hawai#i

at 404-05, 894 P.2d at 101-02; Vinge, 81 Hawai#i at 316, 916 P.2d

at 1217. However, as noted in Part I, there is substantial

scholarship and empirical research indicating that there are a

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number of factors that can affect the reliability of eyewitness

identification. Moreover, misidentification is one of the

leading causes of wrongful convictions. Accordingly, we are

exercising our supervisory powers in order to ensure that, upon

request of the defendant when identification is a central issue,

the jury will be specifically instructed as to the potential

factors which can affect the reliability of eyewitness testimony.

See HRS § 602-4.22 This court has previously invoked its

supervisory powers to adopt new procedural requirements to

prevent error in the trial courts, see, e.g., Shak v. Doi, 49

Haw. 404, 406-07, 420 P.2d 100, 102 (1966) (“[T]he court, in the

exercise of its supervisory power, here states that if a

defendant requests a copy of the charge he should be furnished

it, whether the charge be in the form of a written complaint or

an oral charge. This will better assure fulfillment of the

requirement that the court be satisfied defendant understands the

charge against him.”), and we do so here as well.

Our holding does not require a trial court to give the

instruction unless the defendant requests it.23 This recognizes

22
HRS § 602-4 (1993) provides, “The supreme court shall have the
general superintendence of all courts of inferior jurisdiction to prevent and
correct errors and abuses therein where no other remedy is expressly provided
by law.”
23
The model instruction contained herein is different from other
jury instructions that this court has held trial courts are required to give
sua sponte when there is support in the record, because the model instruction
does not articulate a type of defense, but rather directs the jury to consider
certain factors in evaluating identification testimony. Cf. State v. Stenger,
122 Hawai#i 271, 281, 226 P.3d 441, 452 (2010) (holding that the trial court
(continued...)

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that a defendant may legitimately conclude, as a matter of trial

strategy, that the instruction is not necessary or appropriate in

a given case. The truth-seeking function is furthered by giving

the defendant the option of not requesting the instruction, and

accordingly we respectfully disagree with the dissent’s position

that the instruction must be given whether requested or not.24

See Dissenting Opinion at 42-46. For example, where the

circumstances of the identification lend weight to its

23
(...continued)
should have sua sponte instructed the jury on the mistake-of-fact defense
where there was support in the record). Accordingly, we respectfully disagree
with the dissent’s suggestion that the eyewitness instruction should be
required even in the absence of a request by a defendant. Dissenting Opinion
at 41.
24
The dissent relies on State v. Haanio, 94 Hawai#i 405, 16 P.3d 246
(2001), and State v. Davis, 63 Haw. 191, 624 P.2d 376 (1981), for the
proposition that the eyewitness instruction should be given, even in the
absence of a request from the defendant. See Dissenting Opinion at 44-45.
Respectfully, Haanio and Davis are distinguishable.
In Haanio, this court held that “trial courts must instruct juries
as to any included offenses when there is a rational basis in the evidence[.]”
94 Hawai#i at 413, 16 P.3d at 254 (quotation marks omitted). This court noted
that allowing a trial court to forego a required included offense instruction
if the defendant did not want it would result in an “all or nothing” approach
that forces “the jury to choose between conviction and acquittal on the
greater charge[,]” thereby “foreclose[ing] the determination of criminal
liability where it may in fact exist.” Id. at 414, 16 P.3d at 255 (citation
omitted). Here, the absence of an eyewitness jury instruction does not result
in an “all or nothing” approach.
Similarly, Davis is inapposite. In Davis, this court examined the
constitutionality of Hawaii’s notice-of-alibi rule, which imposes certain
notification requirements on the defendant and prosecutor if the defendant
intends to rely upon an alibi defense. 63 Haw. at 193-94, 624 P.2d at 378.
This court stated, “The adversary system of trial is hardly an end in itself;
it is not a poker game in which players enjoy an absolute right always to
conceal their cards until played.” Id. at 194, 624 P.2d at 378 (quoting
Williams v. Florida, 399 U.S. 78, 82 (1970)). “Given the ease with which an
alibi can be fabricated,” the notice-of-alibi rule protects the State against
“an eleventh-hour defense[.]” Id. (quoting Williams, 399 U.S. at 81).
Respectfully, Davis has little relevance because defendants forgoing an
eyewitness jury instruction cannot fairly be described as “players . . .
conceal[ing] their cards until played.” Id. (quoting Williams, 399 U.S. at
82).

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reliability, the defendant may wish to focus the jury’s attention

on other issues in the case.25

Other appellate courts have expressly relied on their

supervisory powers when departing from a discretionary approach

in the giving of a special instruction on eyewitness

identification and have prospectively applied the new rule. The

Supreme Court of Connecticut, in State v. Ledbetter, 881 A.2d

290, 318 (Conn. 2005), exercised its supervisory powers to

fashion a new jury instruction requirement concerning eyewitness

identification. The Connecticut court recognized that it “[had]

invoked [its] supervisory authority to provide guidance

concerning jury instructions in the past.” Id. The Connecticut

court stated, “In light of the importance of eyewitness

identification evidence and the conclusions to be drawn from the

scientific research discussed [supra], we conclude that it is

appropriate to invoke that authority again to mitigate the

potential risk of mistaken identification.” Id. Accordingly,

the Connecticut court “direct[ed] the trial courts of [its] state

25
As noted in Part I, researchers have found that several variables
tend to affect the reliability of an eyewitness’s identification. However,
whether jury instructions on eyewitness identification actually have a
positive effect on juror sensitivity has not been conclusively proven, and
some studies have found that certain instructions may even reduce juror
sensitivity. See Brian L. Cutler & Steven D. Penrod, Mistaken Identification:
The Eyewitness, Psychology, and the Law 263 (1995) (“[T]he evidence indicates
that Telfaire instructions - perhaps because they confuse jurors - actually
reduced juror sensitivity to witnessing and identification conditions compared
to uninstructed jurors.”).

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to incorporate an instruction in the charge to the jury” “for use

by [its] trial courts in such cases in the future[.]” Id.

The Supreme Court of Utah also exercised its

supervisory authority in Long when it abandoned the discretionary

approach. 721 P.2d at 492. The Utah court held, “We therefore

today abandon our discretionary approach to cautionary jury

instructions and direct that in cases tried from this date

forward, trial courts shall give such an instruction whenever

eyewitness identification is a central issue in a case and such

an instruction is requested by the defense.” Id. (emphasis

added). The Utah court further stated:
Given the great weight jurors are likely to give
eyewitness testimony, and the deep and generally
unperceived flaws in it, to convict a defendant on
such evidence without advising the jury of the factors
that should be considered in evaluating it could well
deny the defendant due process of law under article I,
section 7 of the Utah Constitution.
Id.

In a subsequent case, State v. Stilling, 770 P.2d 137,

143 (Utah 1989), the Supreme Court of Utah clarified that the

rule it adopted in Long arose under its supervisory powers rather

than federal or state constitutional principles. In Stilling,

the defendant argued before the Utah court that it should

“retroactively apply” Long’s holding that “cautionary eyewitness

identification instructions must be given ‘whenever eyewitness

identification is a central issue in a case and such an

instruction is requested by the defense.’” Id. (quoting Long,

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721 P.2d at 492). The defendant “cite[d] dicta in Long where

[the court] wrote that failure to provide eyewitness

identification instructions ‘could very well deny the defendant

due process of law under article I, section 7 of the Utah

Constitution.’” Id. The Utah court rejected the defendant’s

equal protection and due process arguments by explaining that the

court “decided Long on neither federal nor state constitutional

principles, but rather as a result of our supervisory capacity

over the lower courts.” Id. (emphasis added). Accordingly, the

Utah court in Stilling explained that “[s]ince defendant’s case

was tried before Long became law, we evaluate defendant’s claim

under the pre-Long standard which left the giving of a cautionary

instruction to the discretion of the trial judge under the

‘totality of the circumstances.’” Id. (quoting State v. Branch,

743 P.2d 1187, 1190 (Utah 1987)).

Similar to the Utah court, the shift in this

jurisdiction’s approach to the giving of a special jury

instruction on eyewitness identification is rooted in our

supervisory powers. Accordingly, we hold that this rule should

be given prospective effect. See id. (clarifying the prospective

effect of the rule in Long); see also State v. Dyle, 899 S.W.2d.

607, 612-13 (Tenn. 1995) (holding that the adopted instruction

“must be given when identification is a material issue and it is

requested by defendant’s counsel[,]” but noting that “[w]e do not

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apply this new rule to the case under submission” because “the

instruction given at trial was correct under the law then in

effect”); Ledbetter, 881 A.2d at 318-19 (stating that the

specific jury instruction the court had adopted was “for use by

[its] trial courts in such cases in the future” and upholding the

conviction in the case before it despite the absence of such an

instruction in the underlying trial). Thus, as to the instant

case and other cases that are currently pending on direct appeal,

this court will apply the rule then in effect when the cases were

tried.26

B. Cabagbag’s conviction is affirmed under the rule then in
effect when he was tried

In analyzing Cabagbag’s case, “we must examine all

26
Our holding does not involve selective application of the new
rule, Dissenting Opinion at 53-55, but rather is consistent with our approach
in other cases. See Haanio, 94 Hawai#i at 407, 407 n.1, 16 P.3d at 248, 248
n.1 (2001) (holding that “in jury trials beginning after the filing date of
this opinion, the trial courts shall instruct juries as to any included
offenses having a rational basis in the evidence” and noting that prospective
application of the new rule “would not involve selective application to
similarly situated defendants” because the “rule is not applied to the instant
case on appeal or any other case in which trial has been completed”) (emphasis
added). To the contrary, under our holding, Cabagbag and all defendants whose
cases are pending on direct appeal will be treated the same, i.e., their
claims will be evaluated under the rule in effect at the time they were tried.
See State v. Garcia, 96 Hawai#i 200, 214, 29 P.3d 919, 933 (2001) (noting that
“when this court announces a new rule that benefits a defendant and applies
the rule to the defendant in the case in which the rule is announced, it must
be applied to all “‘similarly situated defendants’”) (quoting State v.
Jackson, 81 Hawai#i 39, 51, 912 P.2d 71, 83 (1996)).
The cases cited by the dissent are not to the contrary, and stand
for the proposition that it is inequitable to apply a new rule in a case in
which the rule is announced, but not to others on direct appeal. In sum,
“‘the nature of judicial review precludes us from simply fishing one case from
the stream of appellate review, using it as a vehicle for pronouncing new
[rules], and then permitting a stream of similar cases subsequently to flow by
unaffected by that new rule.’” Garcia, 96 Hawai#i at 213, 29 P.3d at 932
(quoting State v. Kekona, 77 Hawai#i 403, 411 n.3, 886 P.2d 740, 748 n.3
(1994) (Levinson, J., concurring and dissenting)).

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aspects of the trial, including the opening statements, the

cross-examination of prosecution witnesses, the arguments to the

jury, and the general instructions given by the court, to

determine whether the jury’s attention was adequately drawn to

the identification evidence.” Okumura, 78 Hawai#i at 405, 894

P.2d at 102; see also Padilla, 57 Haw. at 161-62, 552 P.2d at

364-65 (stating that the cross-examination, the arguments made to

the jury, and the rest of the jury instructions adequately

directed the jury’s attention to the identification evidence,

rendering a more specific instruction unnecessary).

Cabagbag argues that under this rule, the circuit court

“commit[ted] plain error for failing to provide such an

instruction because the jury’s attention was not adequately drawn

to the identification issue.” The record, however, indicates

that the jury’s attention was adequately drawn to the eyewitness

identification issue at trial by the opening statements and

closing arguments of counsel, the cross-examination of

prosecution witnesses, and the general instructions given by the

court.27 Identification was a primary issue in the case, and both

the DPA and defense counsel focused the jury’s attention on this

27
We do not suggest that lawyer argument alone is sufficient to draw
the jury’s attention to factors affecting eyewitness identification.
Dissenting Opinion at 49-50. Rather, we examine all aspects of the trial,
including cross-examination and the court’s instructions, taking into account
the specific factors that could have affected the reliability of the
identification in the instant case. Here, we conclude that the jury’s
attention was adequately focused on the relevant factors affecting eyewitness
identification.

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issue from the start of trial. During her opening statement, the

DPA noted that after Officer Tomimbang “shines his light in

[defendant’s] face” and asks, “‘What are you doing here?,’”

“[t]he defendant freezes for a second then takes off, flees

across the street towards the truck where he had parked[.]”

Later, defense counsel pointed out during her opening statement,

“Now the officer will say that he sees a male in there, a local

male, short dark hair. That’s the description. That’s what he

sees. It’s dark, clearly at 1:07 in the morning.” Defense

counsel concluded her opening statement by saying, “There were no

other witnesses other than Officer Tomimbang who saw the truck

drive up. The evidence will be simply that.” These statements,

among others, alerted the jury that there were potential issues

with Officer Tomimbang’s identification of Cabagbag from the

start of trial.

This focus on the identification issue continued

throughout the examination of witnesses by both the DPA and

defense counsel. During cross-examination of Officer Tomimbang,

defense counsel directed the jury’s attention to the

circumstances surrounding the officer’s viewing of the truck

driver. Defense counsel asked Officer Tomimbang about, inter

alia, the lighting conditions, the angle from which he made his

observation, and his degree of attention. In response to these

questions, Officer Tomimbang testified about the sources of

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lighting and the strength of lighting. Officer Tomimbang also

testified that it was “probably ten minutes” between the time he

saw the driver dive into the hedges until he heard Sergeant

Kahikina call out that he had a possible suspect. Sergeant

Kahikina, who discovered Cabagbag “lying down in the drainage”

after the search commenced, testified that “[a]s soon as Officer

Tomimbang came, he identified the person that [Sergeant Kahikina]

had detained as the suspect that he was running after.”

During closing arguments, defense counsel again

highlighted for the jury the conditions in which Officer

Tomimbang made his observations, as well as perceived weaknesses

in Officer Tomimbang’s testimony. Defense counsel directed the

jury to consider, inter alia, the “lighting” conditions, the

amount of “time” Officer Tomimbang spent viewing the driver, and

the “distance” between Officer Tomimbang and the driver. Defense

counsel specifically asked the jury, “Did he get a good look?

No.” Defense counsel then gave other reasons to question Officer

Tomimbang’s identification, including the general description he

gave of the driver. Thus, the factors that could have affected

the reliability of the identification were pointed out by defense

counsel.

Moreover, we are satisfied that in this particular

case, the court’s general instructions drew adequate attention to

the factors that defense counsel put at issue and Officer

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Tomimbang testified about. Specifically, the court explained

that the jury could consider a number of factors in deciding on

the weight and credibility of a witness’s testimony, including

the witness’s “means and opportunity of acquiring information”

and “the probability or improbability of the witness’s

testimony.” These instructions, taken together with the other

aspects of the trial discussed supra, sufficiently guided the

jury; they apprised the jury that it could consider factors such

as lighting, distance, and timing, in assessing the weight and

credibility of Officer Tomimbang’s testimony. Accordingly,

Cabagbag’s argument that the jury’s attention was not adequately

focused on the identification issue lacks merit, and the trial

court did not abuse its discretion in declining to sua sponte

give an instruction in this particular case.

Thus, we affirm Cabagbag’s Judgment of Conviction and

Probation and Sentence filed on July 19, 2010. Because

Cabagbag’s judgment of conviction is affirmed, we affirm the

ICA’s judgment on appeal for the reasons set forth in this

opinion.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ James E. Duffy, Jr.

/s/ Sabrina S. McKenna

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PART III: DISSENT TO (1) REQUIRING THAT DEFENDANTS REQUEST
EYEWITNESS INSTRUCTION AND (2) PROSPECTIVE APPLICATION OF
INSTRUCTION REQUIREMENT
(By: Acoba, J.)

With the court, I agree that juries must be instructed

on which factors to consider in assessing the reliability of

eyewitness identification testimony. I write separately on two

matters: (1) in my view, the court should give the instruction as

a matter of course whenever eyewitness identification testimony

is critical to the case, and (2) such an instruction should be

given in this case and its omission would not be harmless. I

therefore respectfully dissent in these two respects to the

opinion expressed in Part II (hereinafter “majority”).

A.

When a defendant claims error in the giving or omission

of a jury instruction, the question is whether, when read and

considered as a whole, the instructions given are prejudicially

insufficient, inconsistent, or misleading. State v. Nichols, 111

Hawai#i 327, 334, 141 P.3d 974, 981 (2006). In this case, the

lack of an eyewitness instruction rendered the instructions as a

whole prejudicially insufficient. Since no physical evidence was

collected from the stolen truck or the tools, Petitioner was

connected to the theft of the truck and tools only through

Officer Tomimbang’s testimony. Officer Domingo testified that he

was near Officer Tomimbang when the suspect was seen driving the

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white truck, but Officer Domingo did not get a good look at the

driver and was unable to identify him.

At trial, Officer Tomimbang identified Petitioner as

the man he saw driving the truck, fleeing from the scene, and who

was shortly thereafter found by the police lying in a ditch in

the subdivision to which the suspect fled. The remainder of the

evidence against Petitioner was extremely weak. It consisted of

Officer Tomimbang’s description of the suspect to the dispatch,

“local male, short hair, dark clothing” or “local male, dark

clothing,” which would have fit any number of individuals, and of

the circumstances surrounding Petitioner’s arrest. As to the

latter, Petitioner’s presence in the subdivision at the time of

his arrest was suspicious, but, had Officer Tomimbang not

identified Petitioner as the man who fled into the subdivision,

the jury could have believed that Petitioner was in the wrong

place at the wrong time. Ultimately, it was the testimony of

Officer Tomimbang that established the crucial link between

Petitioner and the man in the stolen truck. Officer Tomimbang’s

testimony was therefore “critical” to Respondent’s case and

necessitated, under the rule we adopt today, an eyewitness

identification instruction.

The majority, however, would only require courts to

give the instruction if the defendant requests it. See Majority

Opinion at 31-32. But trial courts, not the parties, have the

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duty to ensure that juries are properly instructed on issues of

criminal liability.28 Nichols, 111 Hawai#i at 336 n.5, 141 P.3d

at 983 n.5. There are good reasons to require an eyewitness

identification instruction even in the absence of a request by a

defendant. As noted in Part I of the court’s opinion, juries are

generally not aware of the extent to which factors such as the

passage of time, witness stress, duration of exposure, etc.,

affect an individual’s ability to make an accurate

identification, and thus tend to “over believe” witness

identification testimony. See Long, 721 P.2d at 490 (citing

research); see also Perry, 132 S. Ct. at 732 (“‘Regardless of how

the initial misidentification comes about, the witness thereafter

is apt to retain in his memory the image of the photograph rather

than of the person actually seen, reducing the trustworthiness of

subsequent . . . courtroom identification.’”) (Sotomayor, J.,

dissenting) (quoting Simmons v. United States, 390 U.S. 377,

383–384 (1968) (emphasis in original)). Statistical data

demonstrate that jurors place undue weight on eyewitness

28
The majority asserts that the instruction at issue in this case is
different from other jury instructions that this court has held trial courts
are required to give sua sponte, because the instruction here “does not
articulate a type of defense, but rather directs the jury to consider certain
factors in evaluating identification testimony.” Majority Opinion at 31-32
n.23. However, mistaken identification is a type of defense and the jury
instruction here is necessary to assist the jury in assessing the strength or
weakness of such a defense. See, e.g., Commonwealth v. Cuffie, 609 N.E.2d
437, 438, 441 (Mass. 1993) (recognizing that defendant was entitled to jury
instruction when raising misidentification as a defense and modifying pattern
instruction), abrogated in part by Commonwealth v. Santoli, 680 N.E.2d 1116
(Mass. 1997) (modifying content of instruction required by Cuffie).

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testimony, which can greatly influence the outcome of a

prosecution. See Long, 721 P.2d at 490 (citing research). To

avoid prejudice to defendants we, along with many other

jurisdictions, have abandoned the discretionary approach to trial

courts’ cautionary instructions in eyewitness situations. See

Perry, 132 S. Ct. at 729 (citing other jurisdictions that have

rejected a discretionary approach to instructions relating to

eyewitness identification testimony). Inasmuch as courts have

the ultimate responsibility to ensure juries are properly

instructed, courts should give the cautionary instruction when

eyewitness identification is relevant to the case regardless of

whether the defendant requests it.

The majority, however, justifies the additional

requirement that a defendant must ask for the instruction on the

ground that defendants may wish to forgo the instruction as a

matter of strategy. Majority Opinion at 31-33. This is one of

those instances, however, in which the public interest in

ensuring fair outcomes outweighs the interest of any particular

defendant in obtaining a tactical advantage at trial. See State

v. Haanio, 94 Hawai#i 405, 414, 16 P.3d 246, 255 (2001) (holding

that juries must be instructed on lesser included offenses even

against defendants’ wishes because “[t]he judicial objectives

within the context of the criminal system are to assess criminal

liability and to determine the appropriate punishment” and

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allowing the defendant to gamble on an “all or nothing strategy”

runs counter to those objectives); State v. Davis, 63 Haw. 191,

194, 624 P.2d 376, 378 (1981) (“The adversary system of trial is

hardly an end in itself; it is not a poker game in which [the]

players enjoy an absolute right always to conceal their cards

until played.”).29 Nothing undermines our criminal justice system

more than the conviction of innocent defendants based on

unreliable evidence. See Perry, 132 S. Ct. at 732 (“The

empirical evidence demonstrates that eyewitness misidentification

is the single greatest cause of wrongful convictions in this

country.”) (citation and internal quotation marks omitted)

(Sotomayor, J., dissenting). To preserve the integrity of

criminal trials it is therefore necessary that our courts

instruct juries on how to weigh such evidence, in the same way

29
The majority distinguishes these cases, claiming that the absence
of an eyewitness jury instruction does not result in an “all or nothing”
approach, see Majority Opinion at 32 n.24, and that by foregoing an eyewitness
jury instruction, the parties cannot be described as “players concealing their
cards until played,” id. (internal ellipsis and brackets omitted).
Respectfully, this is a narrow reading of the cases inasmuch as the
fundamental principle underlying these cases is that the parties’ strategies
must yield to the imperative of ensuring fair and just outcomes. Eyewitness
misidentification is the leading cause of wrongful convictions, Perry, 132 S.
Ct. at 732, and any party’s desire to deflect the jury’s attention from
identification issues is far outweighed by the need to ensure that juries are
properly instructed on eyewitness identification testimony. Furthermore, in
Haanio, 94 Hawai#i at 414, 16 P.3d at 255 (2001), this court explained more
generally that neither the defendant nor the prosecution had the right to
incomplete instructions. Id. (citing, among others, People v. Barton, 906
P.2d 531, 536 (Cal. 1995) (stating that “neither the defendant nor the People
have a right to incomplete instructions”) (citation omitted); State v.
Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310 (1980) (“[I]t is well settled
that the trial court must correctly instruct the jury on the law. . . . This
requirement is mandatory to insure the jury has proper guidance in its
consideration of the issues before it.”), superseded by statute on other
grounds, HRS § 707-713).

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that courts instruct juries on other fundamental matters, such as

the credibility of witnesses. Here, where eyewitness testimony

was at the crux of Respondent’s case, the jury should have been

instructed on how to assess such testimony, regardless of whether

Petitioner asked for an instruction.

B.

Once an error in the jury instructions is demonstrated,

a defendant’s conviction should be vacated, “without regard to

whether the defendant objected to the erroneous instruction, if

there is a reasonable possibility that the error contributed to

the conviction[.]” Nichols, 111 Hawai#i at 337, 141 P.3d at 984

(emphasis added). Erroneous instructions are presumptively

harmful and are a ground for reversal unless it affirmatively

appears from the record that the error was not prejudicial.

Nichols, 111 Hawai#i at 334, 141 P.3d at 981.

The failure to give an instruction in this case was not

harmless. The circumstances in which Officer Tomimbang’s

identification was made illustrate why a jury instruction was

necessary. On the night in question, Officer Tomimbang was

standing at the recreation center across from Ka#ahele Street when

he saw a man driving a white truck down the road. It was dark

and the only lighting in the area came from two street lamps, but

Officer Tomimbang claimed he saw the man’s face briefly as the

man drove down the street. The man turned off Ka#ahele Street,

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parked the truck about 60 to 70 yards away from Officer

Tomimbang, and began walking towards the recreation center. When

the man was about twenty feet away, Officer Tomimbang shone his

flashlight toward the man and ordered him to stop. Officer

Tomimbang said he observed the man for a few seconds before the

man fled. Officer Tomimbang’s description of the suspect to the

dispatch was vague--“local male, maybe short dark hair, dark

clothing.”

Under these circumstances, the reliability of Officer

Tomimbang’s identification was questionable. In view of the

distance, the lighting, the short time Officer Tomimbang had to

observe the suspect, and, in particular, in view of Officer

Tomimbang’s generic description of the suspect to the dispatch, a

properly instructed jury could have concluded that Officer

Tomimbang did not have an opportunity to commit the features of

the suspect to memory. The centerpiece of Respondent’s case

against Petitioner, Officer Tomimbang’s eyewitness

identification, thus stood on unsure grounds.

Without a cautionary instruction, the jury was left to

assess the reliability of the only testimony linking Petitioner

to the charged offenses without the guidance that we today,

joining many other jurisdictions, have decided is necessary, see

Perry, 132 S. Ct. at 728 (explaining that jury instructions

adopted by many jurisdictions are safeguards built into our

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adversary system that caution juries against placing undue weight

on questionable eyewitness testimony). There is no reason to

believe from the record or otherwise that this jury knew, without

an instruction from the court, the factors to consider in

weighing Officer Tomimbang’s testimony. It is not for us to

speculate about what the jury would have done had it been

properly instructed, for it is the jury’s role, not that of the

appellate courts, to weigh the evidence. See State v. Kikuta,

125 Hawai#i 78, 89, 253 P.3d 639, 650 (2011) (“[A]ssessment of the

credibility of the witnesses and a weighing of the evidence [is]

not within the province of an appellate court, but [is] a

function of the fact finder at trial.”). The failure to provide

a cautionary instruction was thus not harmless.

C.

The majority disagrees on two grounds. First, the

majority asserts that the jury’s attention was adequately drawn

to the eyewitness identification issue at trial. Majority

Opinion at 36-40. Second, the majority contends that because the

supervisory power of the court is the basis for the adoption of

the eyewitness identification instruction, the instruction must

be given prospectively only. Majority Opinion at 33-36.

Respectfully, I cannot concur on either account.

1.

In my view, the jury’s attention was not adequately

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drawn to the eyewitness identification during trial. The

majority maintains that during opening argument, cross-

examination, and closing arguments, Petitioner’s counsel

“highlighted for the jury the conditions in which Officer

Tomimbang made his observations, as well as perceived weaknesses

in Officer Tomimbang’s testimony.” Majority Opinion at 39.

Thus, the majority concludes, “the factors that could have

affected the reliability of the identification were pointed out

by defense counsel.” Id.

Counsel’s ability to focus the jury’s attention on the

issue of identification, however, is the same rationale that was

used in the line of cases beginning with Padilla to justify

giving courts the discretion to decide whether to give a

cautionary instruction.30 See, e.g., Padilla, 57 Haw. at 162, 552

30
The majority states that whether jury instructions on eyewitness
identification actually have a positive effect on juror sensitivity has not
been conclusively proven. See Majority Opinion at 33 n.25. But the research
cited by the majority only appears to allude to the United States v. Telfaire,
469 F.2d 552 558-59 (1972) instruction, whereas the instruction prescribed
herein is modeled after a California model instruction that contains variables
that were not mentioned in Telfaire, such as the witness’s stress and the
cross-racial or ethnic nature of the identification. Further, recognizing
that eyewitness identification evidence may be unreliable, the United States
Supreme Court has emphasized the importance of jury instructions in ensuring
that defendants have an opportunity to test the reliability of such evidence.
Perry, 132 S. Ct. at 721 (“When no improper law enforcement activity is
involved, it suffices to test reliability through the rights and opportunities
generally designed for that purpose, notably, the presence of counsel at
postindictment lineups, vigorous cross-examination, protective rules of
evidence, and jury instructions on both the fallibility of eyewitness
identification and the requirement that guilt be proved beyond a reasonable
doubt.”) (emphasis added). As the Court stated in Perry, the weight of
authority favors specific eyewitness jury instructions. Id. at 729 n.7
(citing twenty-five other jurisdictions that use specific eyewitness
instructions). Finally, in this jurisdiction, we have relied on the long
established proposition that juries are presumed to follow instructions.
(continued...)

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P.2d at 365 (“Here the cross-examination of the prosecution

witnesses, the arguments to the jury, and the general

instructions given by the court adequately directed the jury’s

attention to the identification evidence and made unnecessary the

more specific instructions requested by the defendant.”). This

exclusive reliance on lawyer argument is precisely what today we

hold to be inadequate to protect a defendant’s right to a fair

trial.31 Further, we do not rely on counsel to instruct the jury.

Kassebeer, 118 Hawai#i at 510, 193 P.3d at 426 (“‘Arguments by

counsel are likely to be viewed as statements of advocacy,” as

opposed to “a definitive and binding statement of law[.]”

(quoting Nichols, 111 Hawai#i at 340 n.8, 141 P.3d at 987 n.8)).

It is inconsistent on the one hand to hold that from now on the

court must provide a cautionary instruction upon the defendant’s

request because lawyer argument is insufficient to alert the jury

to the factors it ought to weigh in considering the reliability

of eyewitness testimony, but on the other to hold that the

argument of Petitioner’s counsel was sufficient in this case to

30
(...continued)
Klinge, 92 Hawai#i at 592, 944 P.2d at 524 (2000) (“[J]uries are presumed to .
. . follow all of the trial court’s instructions.”) (citation omitted).
31
Although the majority purports to rely on its examination of “all
aspects of the trial” in concluding that the jury’s attention was “adequately
focused on the relevant factors affecting eyewitness identification,” see
Majority Opinion at 37 n.27., respectfully, it cannot escape the premise of
today’s holding that a specific eyewitness instruction is necessary because
cross-examination, lawyer argument, and general credibility instruction are
insufficient to ensure that juries understand how to assess the reliability of
eyewitness evidence.

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be assured that the jury was informed of all of the relevant

factors.

The same is true of the majority’s contention that the

general witness credibility instruction adequately drew the

jury’s attention to the identification issue. Majority Opinion

at 39-40. The reasoning that underlies our holding is that the

general witness credibility instruction is not sufficient to

apprise the jury when it comes to considering eyewitness

testimony; a more specific instruction is needed to assist juries

in order to safeguard a fair trial. As is apparent from the

discussion, supra, credibility is different from reliability. A

witness may wholeheartedly believe that he or she has identified

the defendant, but may nevertheless be wrong. By highlighting

credibility and nothing else, the jury may have been misled into

thinking that confidence is correlated with reliability, even

though no correlation has been shown between the two. See Long,

721 P.2d at 490 (citing research). Further, with respect to

reliability, the credibility instruction given here only directed

the jury to consider “the witness’s means and opportunity of

acquiring information,” which are only two of the at least ten

factors we now hold juries must be instructed to consider.

In addition to all of this, the general witness

credibility instruction did not apprise the jury that the

Respondent bore the burden of proving Petitioner’s identity

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beyond a reasonable doubt. Although the court did instruct the

jury, generally, that Petitioner was innocent “unless and until

the prosecution proves the defendant guilty beyond a reasonable

doubt,” the court did not draw the jury’s attention specifically

to Respondent’s burden of proving that Officer Tomimbang’s

identification of Petitioner was reliable by proof beyond a

reasonable doubt. The court’s instructions were therefore not

complete in terms of informing the jury how to weigh the

reliability of eyewitness identification testimony--the critical

issue in this case.

2.

The majority holds that because this court is

exercising its supervisory powers to require courts to give a

special jury instruction on eyewitness identification, today’s

ruling will apply only prospectively and not to Petitioner.

Majority Opinion at 33-36. Supervisory powers are derived from

HRS § 602-4 (1993), which states that the supreme court shall

have the general superintendence of all courts of inferior

jurisdiction to prevent and correct errors and abuses where no

other remedy is expressly provided by law. Castro v. Admin. Dir.

of the Courts, 97 Haw. 463, 40 P.3d 865 (2002).

Although the majority suggests that the invocation of

supervisory powers results in the prospective application of a

legal principle, we have, in fact, used our supervisory powers to

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correct errors that occurred in the particular case from which

the appeal arose. Thus, for example, in State v. Pattioay, 78

Hawai#i 455, 469, 896 P.2d 911, 925 (1995), we invoked our

supervisory powers to hold that the “evidence at issue in the

instant case, which was obtained in violation of [a federal

statute] and then proffered in criminal proceedings against the

Defendants-Appellees, must be suppressed under the authority of

this court’s supervisory powers in the administration of criminal

justice in the courts of our state.” (Emphasis added.)

Similarly, in State v. Fields, 67 Haw. 268, 273-77, 281, 686 P.2d

1379, 1385-87, 1390 (1984), this court exercised its supervisory

power to vacate the Petitioner’s sentence and remanded the case

to the trial court where a condition of probation made the

probationer subject at all times during the period of her

probation to a warrantless search. See also State v. Moniz, 69

Haw. 370, 371-74, 742 P.2d 373, 375-77 (1987) (addressing

petitioners’ question of whether court approval was required

before committed person could seek leave from hospital even

though the case was not ripe and remanding for court to determine

whether authorization for leave should be approved); State v.

Estrada, 69 Haw. 204, 227-28, 738 P.2d 812, 828 (1987) (invoking

supervisory powers and holding that judge’s practice of

personally entering jury room to answer questions was improper).

These cases show that this court can and will exercise its

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supervisory powers to correct errors that arise in the case

before it.

Respectfully, it is unfair to craft a new rule in this

case but not give Petitioner the benefit of it.32 In my view, the

better approach would be to apply the new rule to the instant

case and retroactively “to those defendants who are similarly

situated[,]” i.e., defendants in “‘all cases pending on direct

review or not yet final’” where identification is disputed, as of

the date of this decision. State v. Garcia, 96 Hawai#i 200, 214,

29 P.3d 919, 933 (2001) (quoting Griffith v. Kentucky, 479 U.S.

314 (1987)) (brackets, ellipsis, and emphasis omitted). For one,

“‘the nature of judicial review precludes us from simply fishing

one case from the stream of appellate review, using it as a

vehicle for pronouncing new [rules], and then permitting a stream

of similar cases subsequently to flow by unaffected by that new

rule.’” Id. at 213, 29 P.3d at 932 (quoting State v. Kekona, 77

Hawai#i 403, 410 n.3, 886 P.2d 740, 748 n.3 (1994)). Under the

circumstances of this case, “‘selective application of [the] new

rule[] violates the principle of treating similarly situated

defendants the same.’” Id. (citation omitted). Respectfully,

in the instant case, the majority has “‘simply fish[ed this] case

32
It is undisputed that this case establishes a new principle of law
because it overrules our clear precedent as set forth in Padilla. State v.
Ikezawa, 75 Haw. 210, 221, 857 P.2d 593, 598 (1993) (holding that new rule was
established because clear precedent set forth in another opinion had been
overruled).

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from the stream of appellate review’” and “‘us[ed] it as a

vehicle for pronouncing [a] new rule[],’” but then leaves

Petitioner, the one whose efforts resulted in the creation of the

new rule, and the “‘stream of similar cases . . . to flow by

unaffected by that new rule.’”33 Id. Accordingly, I cannot agree

with the majority’s refusal to apply the rule in this case and to

those defendants similarly situated as Petitioner.

John M. Tonaki, /s/ Simeon R. Acoba, Jr.
public defender,
(James S. Tabe, deputy
public defender on the briefs),
for petitioner

Stephen K. Tsushima, deputy
prosecuting attorney,
for respondent

33
The majority disagrees relying on Haanio, 94 Hawai#i 405, 16 P.3d
246, and Garcia, 96 Hawai#i 200, 29 P.3d 919, but, respectfully, those cases
are not of help to the majority. In Haanio, we held that the court must
instruct the jury on lesser included offenses when there is a rational basis
in the evidence for a verdict acquitting the defendant for the offense charged
and convicting the defendant for the included offense. 94 Hawai#i at 413, 16
P.3d at 254. The rule before Haanio was that the court had discretion to
instruct juries on lesser included offenses if the prosecution did not ask for
an instruction and the defendant objected to it. Id. at 412, 16 P.3d at 253.
In that case, we applied the new rule prospectively, inasmuch as the court had
already instructed the jury that convicted the defendant on the lesser
included offense. Id. at 415-16, 16 P.3d at 256-57. In this case, unlike in
Haanio, Petitioner has not had the benefit of the specific eyewitness
instruction, and thus Haanio is distinguishable.
In Garcia, we noted that our decision in State v. Wilson, 92
Hawai#i 45, 987 P.2d 268 (1999), held that blood alcohol test results should
be excluded in driving under the influence of intoxicating liquor (DUI) cases
where the defendant was misinformed by the police of the consequences for
failing to take a chemical test. 96 Hawai#i at 208, 29 P.3d at 927. We said
in Garcia that this exclusionary rule should be applied retroactively to DUI
cases pending when Wilson was decided. Id. Garcia explained that
retroactive application of the Wilson rule would not prejudice the Garcia
defendant and that it would be unfair to give the Garcia defendant the benefit
of the Wilson rule, while denying it to similarly situated defendants. Id. at
214, 29 P.3d at 933. Thus, inasmuch as, in Garcia, this court held that a new
rule benefitting the defendant should be applied retroactively, in this case
too, the rule that the jury should be given a specific eyewitness
identification instruction, which would benefit Petitioner, should be applied
to Petitioner and retroactively to all similarly situated defendants.

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