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Electronically Filed
Supreme Court
SCWC-11-0000667
14-FEB-2014
08:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
JOHN WALTON, Petitioner/Defendant-Appellant.
SCWC-11-0000667
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000667; CR. NO. 09-1-0498)
FEBRUARY 14, 2014
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
OPINIONS OF THE COURT
This case arises from an incident in which a taxi
driver (complaining witness or “CW”) was stabbed and robbed after
transporting John Walton and Courage Lee Elkshoulder to Manoa
Valley. According to the State, after CW drove Walton and
Elkshoulder to Manoa, Elkshoulder grabbed CW from behind and
stabbed him in the neck; Walton assisted in the attack by
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reaching over from the rear passenger-side seat and holding CW
down.
Police recovered a backpack from CW’s taxi, searched
the backpack pursuant to a warrant, and recovered a General
Nutrition Center (GNC) membership card. Police then contacted
GNC and learned that the card was registered in Walton’s name.
Police also obtained a surveillance video depicting two men
crossing the street near where CW had picked up Walton and
Elkshoulder. Images from this video were posted on online news
sites and shown on the evening news. Police received tips
identifying the men in the images as Walton and Elkshoulder and
several coworkers identified Walton and Elkshoulder as the men in
the images.
The State indicted both Walton and Elkshoulder for
Attempted Murder in the Second Degree and Robbery in the First
Degree. The Circuit Court of the First Circuit1 consolidated
Walton’s and Elkshoulder’s trials, and subsequently denied both
Walton’s and Elkshoulder’s motions for severance.
During trial, the State maintained that Elkshoulder
stabbed CW while Walton held him down. Elkshoulder and Walton,
however, advanced irreconcilable defenses. Specifically,
Elkshoulder testified that he was not in the taxi when CW was
stabbed. Elkshoulder also introduced a recorded telephone
1
The Honorable Michael A. Town presided until October 1, 2010, when
the case was re-assigned to the Honorable Colette Y. Garibaldi.
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conversation that he had made, in which Walton admitted to
stabbing CW. The State argued the recording was not worthy of
belief. On the other hand, Walton elicited testimony from CW
that it was Elkshoulder who stabbed him. In other words, Walton
and Elkshoulder each argued that the other had stabbed CW. The
jury found Walton guilty of both Attempted Murder in the Second
Degree and Robbery in the First Degree, but found Elkshoulder
guilty of only Assault in the First Degree and Robbery in First
Degree.
The circuit court sentenced Walton to a life term of
incarceration with the possibility of parole for Attempted Murder
in the Second Degree and dismissed the robbery charge without
prejudice because the jury found that the two offenses had
merged, and Walton brought the instant appeal. The Intermediate
Court of Appeals affirmed the circuit court’s judgment of
conviction and sentence.
Walton argues that the circuit court erred in: (1)
denying Walton’s motion for severance; (2) denying Walton’s
motion to suppress evidence (i.e., the information obtained from
GNC) and identification testimony (i.e., the identification of
Walton and Elkshoulder by their co-workers); (3) admitting the
recorded telephone conversation; (4) limiting Walton’s cross-
examination of Elkshoulder concerning the making of the
recording; (5) instructing the jury; and (6) denying Walton’s
motion for judgment of acquittal.
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We hold that, on the facts of this case, the circuit
court erred in denying Walton’s motion for severance. Walton was
forced, in effect, to defend against two prosecutors with two
different theories of his guilt. The State argued that Walton
assisted Elkshoulder by holding CW down, while Elkshoulder argued
that it was Walton who stabbed CW. Elkshoulder relied on the
recorded telephone conversation in support of his theory, and
that evidence appears to have been persuasive. Despite the
State’s theory of the case, and CW’s testimony in support of that
theory, the jury — after hearing Walton’s admission on the
recording — convicted Walton of attempted murder, but convicted
Elkshoulder only of assault in the first degree. In these
circumstances, Walton was prejudiced and denied a fair trial.
The circuit court therefore should have granted Walton’s motion
for severance. Accordingly, we vacate the ICA’s and the circuit
court’s judgments, and remand Walton’s case for a new trial.
Because our resolution of this issue is dispositive, we
do not consider several of Walton’s other arguments. We do,
however, address Walton’s arguments that the circuit court erred
in denying his motion to suppress evidence and identification
testimony and in instructing the jury, because those issues may
arise again on remand in Walton’s separate trial. We also
conclude that because sufficient evidence supported the jury’s
verdict, the circuit court did not err in denying Walton’s motion
for acquittal.
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I. Background
The following factual background is taken from the
record on appeal.
On April 8, 2009, the State indicted Walton for
Attempted Murder in the Second Degree, in violation of HRS
§§ 705-500,2 707-701.5,3 and 706-6564; and Robbery in the First
2
HRS § 705-500 provides that:
(1) A person is guilty of an attempt to commit a crime
if the person:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant circumstances
were as the person believes them to be; or
(b) Intentionally engages in conduct which, under the
circumstances as the person believes them to be,
constitutes a substantial step in a course of conduct
intended to culminate in the person’s commission of
the crime.
(2) When causing a particular result is an element of
the crime, a person is guilty of an attempt to commit
the crime if, acting with the state of mind required
to establish liability with respect to the attendant
circumstances specified in the definition of the
crime, the person intentionally engages in conduct
which is a substantial step in a course of conduct
intended or known to cause such a result.
(3) Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative
of the defendant’s criminal intent.
3
HRS § 707-701.5 provides:
(1) Except as provided in section 707-701, a person
commits the offense of murder in the second degree if
the person intentionally or knowingly causes the death
of another person.
(2) Murder in the second degree is a felony for which
the defendant shall be sentenced to imprisonment as
provided in section 706-656.
4
HRS § 706-656 provides, in relevant part:
(2) Except as provided in section 706-657, pertaining
(continued...)
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Degree, in violation of HRS § 708-840(1)(b)(i).5 The State
indicted Elkshoulder for the same offenses on November 26, 2008.
A. Consolidation of trials
The State filed a motion to consolidate the trials of
Walton and Elkshoulder, stating that the charges involved the
same conduct or series of acts and were connected by a single
scheme or plan. The State explained that the only reason Walton
and Elkshoulder were charged separately was that police had been
unable to locate both defendants at or near the same time. This
4
(...continued)
to enhanced sentence for second degree murder, persons
convicted of second degree murder and attempted second
degree murder shall be sentenced to life imprisonment
with possibility of parole. The minimum length of
imprisonment shall be determined by the Hawaii
paroling authority; provided that persons who are
repeat offenders under section 706-606.5 shall serve
at least the applicable mandatory minimum term of
imprisonment.
If the court imposes a sentence of life imprisonment
without possibility of parole pursuant to section
706-657, as part of that sentence, the court shall
order the director of public safety and the Hawaii
paroling authority to prepare an application for the
governor to commute the sentence to life imprisonment
with parole at the end of twenty years of
imprisonment; provided that persons who are repeat
offenders under section 706-606.5 shall serve at least
the applicable mandatory minimum term of imprisonment.
5
HRS § 708-840(1)(b)(i) provides, in relevant part:
(1) A person commits the offense of robbery in the
first degree if, in the course of committing theft or
non-consensual taking of a motor vehicle:
. . .
(b) The person is armed with a dangerous instrument
and:
(i) The person uses force against the person of anyone
present with intent to overcome that person’s physical
resistance or physical power of resistance[.]
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was a result of the fact that Elkshoulder turned himself in to
authorities approximately one week after the incident, while
Walton fled the state and was not apprehended until mid-March
2010.
The circuit court held a hearing on the consolidation
motion, to which both Walton and Elkshoulder objected. During
the hearing, Walton’s counsel stated that he had just been
informed of a recorded telephone conversation between Walton and
Elkshoulder in which Walton allegedly made incriminating
statements.6 Walton argued that the recording presented a
problem under Bruton v. United States, 391 U.S. 123 (1968).7 The
circuit court granted the State’s motion to consolidate, subject
to review in pretrial motions.
Before the start of trial, Walton filed a motion for
severance, arguing that his rights to confrontation, effective
assistance of counsel, and due process of law would be violated
by a joint trial. Walton argued that Elkshoulder, using the
recorded telephone conversation, would contend that it was Walton
who had stabbed CW. Walton argued that because the recording
appeared to directly implicate him, his defense conflicted with
that of Elkshoulder. The State filed an opposition to the
6
As discussed infra, this recording was made by Elkshoulder.
7
In Bruton, the United States Supreme Court held that a defendant
is deprived of the Sixth Amendment right of confrontation when an
incriminating statement of a non-testifying co-defendant is introduced at
their joint trial. 391 U.S. at 126.
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motion, arguing that the recorded phone conversation included
Walton’s own statements and that Walton’s voice had been verified
by two of Walton’s co-workers, Jeremy Koki and Matthew Rodrigues.
The circuit court denied Walton’s motion to sever.
On the eve of trial, Elkshoulder filed a motion to
sever his and Walton’s trials, in which Walton joined, arguing
that Elkshoulder would be prejudiced if the State argued that the
defendants had engaged in a conspiracy or mutual agreement in
making the recording. The circuit court denied the motion.
After trial began, Walton again moved for severance,
arguing that the strategies adopted by himself and Elkshoulder
were inconsistent and contradictory, and that a joint trial would
deprive him of a fair trial. The circuit court denied the
motion, stating that no additional information had been presented
that would warrant reversal of the prior ruling denying
severance.
After trial, the circuit court issued its Findings of
Fact and Conclusions of Law and Order denying severance of
trials, finding that Walton and Elkshoulder failed to present any
new information that had not already been presented to the
circuit court when it consolidated the trials. The order also
stated that joinder would not be unfair to either defendant.
Specifically, the order stated that the recording did not present
a Bruton issue because “[u]nlike Bruton, this phone conversation
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is not a statement made by a non-testifying co-defendant which
implicates a defendant in a joint trial.” (Emphasis added).
The order further explained that:
[n]either defendant is being prevented from producing
evidence which would have otherwise been inadmissible
in their separate trials. Had Defendant Walton gone
to trial separately, the State could still introduce
the taped phone conversation against Walton as his own
statement. . . . Although both defendants may attempt
to point the finger at the other, the Court does not
find this irreconcilable. There is other evidence
that this court may consider and in its discretion
finds that these matters should be tried together.
B. Suppression of Identification and Evidence
Walton also filed a motion to suppress evidence and
identification testimony. Specifically, Walton sought to
suppress the identification testimony of Jeremy Koki and Matthew
Rodrigues, who identified Walton in still photos taken from a
surveillance video recorded on the day of the incident, and in a
photographic lineup array. Walton argued that Rodrigues’s and
Koki’s identifications were the result of impermissibly
suggestive procedures and not reliable because Rodrigues and Koki
had previously viewed surveillance photos of persons identified
by the news media as alleged suspects in the incident and
discussed with others their belief that Walton was depicted in
those photos.
Walton also sought to suppress information police
obtained using a registration number on the GNC card recovered
from the backpack found in CW’s taxi. Walton acknowledged that
police obtained a warrant to search the backpack, but argued that
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police were required to secure an additional warrant to obtain
from GNC any information associated with the card’s registration
number.
The State opposed Walton’s motion, stating that the
identification procedures used were not unfair or inherently
suggestive, because both Koki and Rodrigues had worked with
Walton and Elkshoulder for nearly a year, were very familiar with
Walton’s and Elkshoulder’s appearances and personal information,
and had already recognized Walton and Elkshoulder in news reports
showing the surveillance photos and video before being contacted
by police to confirm the identities of Walton and Elkshoulder in
photo lineups. The State argued that Koki’s and Rodrigues’s
familiarity with Walton and Elkshoulder supported an unequivocal
recognition of them both in the surveillance images and
photographic lineups. The State noted that Walton and
Elkshoulder were captured on surveillance video while at the
corner of Pensacola and Young streets — the approximate location
where CW told police he picked up Walton and Elkshoulder — and
that police provided the images to television news stations,
which broadcast the images. According to the State, police
subsequently received an anonymous call identifying the men in
the images as Walton and Elkshoulder, and stating that they
worked for the Hawai#i Medical Service Association (HMSA).
Police then contacted HMSA to speak with anyone who might be
familiar with Walton or Elkshoulder.
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Regarding the information obtained using the GNC card,
the State argued that the police’s contact with a GNC store to
ascertain ownership of the card based on the card’s registration
number was allowable under the warrant police obtained to search
the backpack found in CW’s taxi, which contained the card.
During a hearing on Walton’s motion, Rodrigues
testified that on November 20, 2008, he went to a news website to
view photos of two men accused of a crime, after his supervisor
called him and told him to check out the news. Rodrigues
testified that he believed his supervisor told him that
Elkshoulder and Walton might be depicted in the video.
Rodrigues explained that he was a quality assurance
coordinator for HMSA, and that he had supervised Walton for about
five months and Elkshoulder for about seven months. Rodrigues
testified that he looked at the photos on the website about 20
times and consulted with his family, who had met Elkshoulder. At
first, Rodrigues thought that the online images did not depict
Walton and Elkshoulder. However, by the time Rodrigues saw the
images on the evening news, it was clear to him that Walton and
Elkshoulder were the men depicted in the images. Rodrigues
testified that he was able to identify Walton based on his
stature, his overall appearance, the style of his hair, his
glasses, and his backpack.
Rodrigues further testified that a day or two later,
police contacted him and showed him the same surveillance photo.
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About a month after that, Rodrigues was again contacted by police
to view a photographic lineup, from which he identified Walton.
Koki8 testified that he worked for HMSA and that in
November 2008, he received a phone call telling him to look at a
surveillance photo in an online news report. The person told
Koki, “I think it’s one of your guys” but did not identify the
person depicted in the photo by name. Koki stated that he looked
at the online photo about ten times over ten minutes, after
which he called his manager and stated that he believed the men
depicted in the photo were Walton and Elkshoulder. Koki
testified that he concluded on his own that it was Elkshoulder
and Walton in the photo.
Koki further testified that he viewed the photo
repeatedly because he did not want to believe that it was Walton
and Elkshoulder in the photo, but that after he was confident
that it was them, he decided to report it to his manager.
Koki identified Elkshoulder in the photo by his clothing and
hair, and identified Walton by his hair and backpack. Koki
stated that almost a month later, he identified Walton and
Elkshoulder from a lineup of photos.
HPD Detective Michael Ogawa testified that he prepared
a photographic lineup using photos from Hawai#i driver’s licenses
and state IDs, and showed them to Rodrigues, Koki, and Richard
8
Koki did not testify at trial.
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Laumauna, another of Walton’s co-workers.9 Detective Ogawa also
showed Koki and Rodrigues photographs taken from the surveillance
video.
Detective Ogawa explained that CW identified the two
men in the surveillance photo as the men who were involved in the
incident. Although CW was able to identify Elkshoulder from a
photo lineup, he was unable to identify Walton.
Detective Ogawa further testified that another
detective obtained a search warrant to search the contents of the
backpack found in CW’s taxi. Detective Ogawa explained that the
GNC card was found in the backpack, and described the card as a
rewards card attached to a key ring. Detective Ogawa further
explained that the GNC card did not have a name on it, but that
it had an identification number, which he provided to GNC to
determine who might be associated with the number.
The circuit court denied Walton’s suppression motion.
The circuit court found that Koki and Rodrigues identified Walton
and Elkshoulder independently as a result of their familiarity
with Walton and Elkshoulder, and that the photo lineup had not
been impermissibly suggestive. The order noted that Koki and
Rodrigues saw the surveillance images of Walton and Elkshoulder
shown by news media the day before they were contacted by police
9
Walton did not seek to suppress the testimony of Laumauna, who
also testified during the suppression hearing that he met with Detective Ogawa
and identified Walton and Elkshoulder as the men depicted in the surveillance
photos. Laumauna also identified Walton in a photo lineup, based on his
familiarity with Walton as a co-worker.
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to identify Walton and Elkshoulder, and that police did not know
Koki and Rodrigues had seen the photos. Specifically, the order
explained that:
[e]ach of the witnesses identified Elkshoulder and
Walton independently as a result of their contact with
defendants. The fact that the photos used in the
photo lineup array [are] pictures of the defendants
not in the video stills, but pictures of them as they
appeared on different dates and times (i.e., photos
from driver’s license or state identification cards)
is not impermissibly suggestive.
The circuit court also concluded that the police
inquiry to establish ownership of the GNC card found in the
backpack was within the scope of the search warrant and that the
card was not a closed container requiring an additional warrant.
C. Recording of telephone conversation
Prior to trial, the circuit court held an HRE Rule 104
hearing regarding the recorded telephone conversation between
Elkshoulder and Walton. Elkshoulder indicated that he would
offer parts of the recording into evidence as exceptions to the
hearsay rule, as an admission by a party-opponent, or as a
statement against interest.
Walton objected to the admission of the entire
transcript of the recording and the recording itself, arguing
that the recording was irrelevant, prejudicial, and that its
admission would violate Walton’s right of confrontation. The
circuit court ruled that it would admit certain portions of the
recording, including the portion in which Walton stated that he
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stabbed CW two to three times. The circuit court stated that it
would address confrontation and evidentiary issues at trial.
D. Trial
1. State’s Case-in-Chief
CW testified that on November 15, 2008 at approximately
1:00 p.m., two men approached him outside his taxicab near the
corner of Pensacola and Young streets and requested a ride.
There is no dispute that the two men were Walton and Elkshoulder.
CW agreed to give Walton and Elkshoulder a ride, and they entered
his taxi. Elkshoulder sat in the rear seat directly behind CW,
and Walton sat in the rear seat on the passenger side. At their
request, CW drove the men to Manoa.
As the taxi approached Manoa, Elkshoulder asked CW the
cost of a fare to Waianae, and whether CW had change for a $100
bill. CW responded that he was not sure if he had change, and
Elkshoulder told CW that he would not need change. Walton was on
a cell phone during much of the ride and did not speak to CW.
Elkshoulder directed CW to drive to a park in Manoa, then changed
his mind and said he wanted to go to his sister’s home.
Eventually, the taxi reached a dead-end street, and Elkshoulder
told CW to stop because they had arrived at his sister’s house.
CW then stopped the taxi and reached to his right to stop the
taxi meter.
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CW testified that as he turned his head to the right, a
left arm grabbed him around the neck from directly behind, and he
was cut on the right side of his neck. CW was certain that
Elkshoulder had stabbed him, because, at the time, he saw Walton
still seated on the rear passenger side of the taxi. CW
testified that both men then pinned him down between the two
front seats. CW was facing the ceiling of the car and could see
both men pinning him down. CW then saw another hand start
stabbing him a few more times with a knife. CW grabbed the knife
with his left hand, which was cut as he struggled with the person
holding the weapon. CW did not see who was holding the knife,
but saw three hands trying to pin him down while a fourth hand
was trying to stab him. CW was unsure exactly how the struggle
ended. The two men opened the rear doors of the taxi, exited and
ran.
When police arrived at the scene, they recovered
various pieces of evidence, including two knives. One knife was
found in the taxi behind the driver’s seat. The second knife was
found under the taxi, closer to the driver’s side of the vehicle.
The police also recovered a backpack from inside the taxi. The
police obtained a search warrant to search inside the backpack,
and its contents included the GNC card.
CW explained that, following the attack, about $90 to
$100 was missing from one of his pants pockets, and that his
wallet was also missing from another pants pocket. However, CW
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also testified that he received his wallet and cell phone from
the hospital when he was discharged a few days later.
Detective Ogawa testified that on November 17, 2008, he
reviewed evidence recovered from the backpack pursuant to a
search warrant, including the GNC card and a Powerhouse Gym
membership card. Detective Ogawa called the Ala Moana branch of
GNC, provided the store with the number that was printed on the
GNC card, and GNC provided him with a name associated with the
card. Detective Ogawa also called Powerhouse Gym, which provided
him with a name associated with the gym membership card. The GNC
card was associated with Walton and the Powerhouse Gym card was
associated with Elkshoulder.
Detective Ogawa testified that he showed CW the photos
from a surveillance video taken near the corner where CW had
indicated he picked up the passengers who attacked him. CW
identified the men in the photos as the passengers who attacked
him, and Detective Ogawa then released copies of the photos to
news media via Crime Stoppers. Detective Ogawa then received
tips via Crime Stoppers identifying Walton and Elkshoulder. The
tips also revealed that Walton and Elkshoulder worked for
Staffing Partners as temporary workers in the HMSA building.
Detective Ogawa contacted a Staffing Partners employee who
confirmed that Walton and Elkshoulder were employees of the
company. Detective Ogawa then contacted HMSA and interviewed
Koki, Rodrigues, and Laumauna. Detective Ogawa showed the
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surveillance photos to Koki and Rodrigues, who identified Walton
and Elkshoulder. Detective Ogawa also showed Koki and Rodrigues
photographic lineups that included state identification photos of
Walton, Elkshoulder and others with similar appearances. Koki
and Rodrigues each identified Walton and Elkshoulder from the
lineups.
Rodrigues testified that he worked at HMSA and
supervised both Walton and Elkshoulder. On approximately
November 18, 2011, Rodrigues’s supervisor, Koki, directed him to
view photos on an online news site to try to determine who was in
the photos. Rodrigues recognized Elkshoulder and Walton in the
photo, but he did not want to believe that it was them.
Rodrigues looked at the photo on the news site repeatedly because
it appeared fuzzy, but seeing a clearer image on the evening news
confirmed to him that the men in the photo were Elkshoulder and
Walton.
Rodrigues testified that Elkshoulder called him on
November 19, 2011, and Rodrigues asked Elkshoulder if he knew his
face was being shown on the news. According to Rodrigues,
Elkshoulder responded that “he’s sorry, that he messed up” and
that “[t]hings weren’t supposed to go down that way.”
Elkshoulder also told Rodrigues that he did not mean to hurt
anybody.
Rodrigues further testified that Elkshoulder and Walton
always worked together, arrived together, and left together.
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According to Rodrigues, Elkshoulder seemed like an adult leader
and Walton seemed like a follower who was young and clueless.
Elkshoulder would tell Walton what to do, and Walton would listen
and not argue. On cross-examination by Elkshoulder, Rodrigues
stated that during his telephone conversation with Elkshoulder,
Elkshoulder did not discuss details of the incident involving CW,
or refer to who stabbed anyone.
Laumauna testified that he worked with Elkshoulder and
Walton at HMSA, and that he had invited them to his grandniece’s
birthday party at Ala Moana Beach Park on November 15, 2008, but
that neither Elkshoulder nor Walton attended. While Laumauna was
at the party that day, he received a call from Elkshoulder, who
asked him for a ride from his sister’s house in Manoa.
Elkshoulder told Laumauna that “they” needed a ride from Manoa,
which Laumauna understood to mean that Walton was with
Elkshoulder. Laumauna did not pick up Elkshoulder because he was
hosting the party. In court, Laumauna was shown one of the
surveillance video photos, and he identified the two men in the
photo as Elkshoulder and Walton.
Trauma surgeon Frederick Yost, M.D. testified that he
treated CW for two stab wounds to the neck. Dr. Yost testified
that CW also suffered lacerations on his right forearm and left
hand and a puncture wound on his right hand. On cross-
examination, Dr. Yost testified that one of CW’s neck wounds
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could have caused death if untreated, but that death from his
other wounds was unlikely.
After the State rested, Walton and Elkshoulder each
moved for a judgment of acquittal. The circuit court denied the
motions.
2. Elkshoulder’s defense
Elkshoulder testified in his own defense. Elkshoulder
stated that on November 15, 2008, he had planned to go to
Laumauna’s grandniece’s birthday party at Ala Moana Beach with
Elkshoulder’s girlfriend and her friend. According to
Elkshoulder, Walton showed up unexpectedly at Elkshoulder’s
apartment at around 11:30 a.m. According to Elkshoulder, Walton
told him that he needed a place to stay, and asked if he could
stay with Elkshoulder, who declined. At some point,
Elkshoulder’s girlfriend no longer wanted to go to the party, so,
at about 12:30 p.m., Elkshoulder and Walton began walking down
Pensacola Street toward Ala Moana.
According to Elkshoulder, Walton suggested catching a
taxi to go and get some money from a friend, at which point
Walton approached CW’s taxi and asked for a ride. Elkshoulder
testified that Walton directed CW where to go. According to
Elkshoulder, when the taxi stopped in Manoa, “it just happened
real fast.” Elkshoulder explained that Walton whispered to him
to “get my back,” and Elkshoulder thought that Walton was going
to run out of the taxi without paying. Elkshoulder testified
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that Walton then jumped on CW, at which point Elkshoulder exited
the taxi. Elkshoulder stated that once he exited the taxi he
walked away at a fast pace but did not run. Elkshoulder stated
that he heard the taxi’s horn honking repeatedly, and looked back
and saw the taxi shaking. According to Elkshoulder, Walton
exited the cab from the back driver’s side. Elkshoulder
testified that he continued walking, heard running behind him,
turned and saw Walton running toward him. Elkshoulder stated
that he began to run away because he saw what looked like blood
on Walton’s shirt and shorts. Elkshoulder stated that Walton
followed him into a small ravine, and that the following exchange
occurred:
I turned to him and just the look on his face and he
said I can’t believe it, I can’t believe it. And I
said what and he said I stabbed him, I stabbed him.
And my –- my heart just sank when I heard him say
that, especially when I put together that what was on
him when he came out was blood. And I didn’t know if
[CW] was -- I didn’t know what happened to him, if he
was still alive or whatever.
Elkshoulder stated that he kept walking and wanted to
get away from Walton. Elkshoulder stated that he called Laumauna
to ask for a ride, and that Laumauna said he was busy setting up
at the party. According to Elkshoulder, he walked from Manoa to
Kapiolani Park and stayed there for several days. On November
17, 2008, Elkshoulder walked to Walton’s girlfriend’s house, told
Walton he planned to turn himself in to police, and urged Walton
to turn himself in. Elkshoulder stated that Walton refused to
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turn himself in and said he would leave, but did not say where he
would go.
Elkshoulder testified that Rodrigues called him a few
days after the incident, and informed Elkshoulder that his face
was “all over the news and the paper.” Elkshoulder testified
that he told Rodrigues: “I didn’t have anything to do with it.
I messed up by going with John Walton and that was it.”
Elkshoulder further testified that he told Rodrigues that “[i]t
wasn’t supposed to happen that way, I didn’t know it was going to
happen that way,” and that “I said I didn’t hurt anybody and I
would never mean to hurt anybody.” Elkshoulder turned himself in
to authorities and was arrested on November 21, 2008.
According to Elkshoulder, Walton called Elkshoulder’s
cell phone on November 17, 2009 at about 10:00 a.m. from a number
with a Kansas area code. Elkshoulder told Walton that he was
busy and to call back in the evening. After hanging up,
Elkshoulder immediately called his attorney, a deputy public
defender (DPD).10 After consulting with the DPD, Elkshoulder
obtained a tape recorder and audio tape. Elkshoulder stated that
his purpose for getting the tape recorder was to get Walton’s
side of the story and “[t]he truth of what happened that day.”
Walton called back that evening, while Elkshoulder was
at his parents’ home. Elkshoulder put his cell phone on speaker
10
The same DPD served as Elkshoulder’s trial attorney in the instant
case.
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mode and began to record his conversation with Walton.
Elkshoulder stated that he did not record the entire
conversation, because the cassette tape had 60 minutes of
recording capacity and he did not want to waste any recording
space on small talk. Consequently, there were gaps in the tape
that indicated times when Elkshoulder turned the recorder on and
off. Elkshoulder identified his Exhibit C as an accurate but
edited and shortened version of the taped recording. Elkshoulder
offered it into evidence, upon which Walton requested and
conducted a voir dire examination.
During the voir dire examination, Walton asked
Elkshoulder about his conversation with the DPD prior to making
the cassette recording. The DPD objected and, at a bench
conference, stated that such questioning infringed on the
attorney-client privilege. Walton argued that the DPD had made
himself a witness to how the recording was made. Walton also
complained that the recording was not authenticated by any means
other than Elkshoulder’s self-serving statements. Walton asked
the circuit court to allow questioning of the DPD about his
involvement in producing the recording.
The State agreed with Walton that the DPD had made
himself a witness in this case by trying to introduce the
recording. The DPD stated that he was not a witness because he
was not present when the recording was made. The DPD also argued
that an adequate foundation was laid for the recording, and that
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Walton’s and the State’s arguments went to the weight of the
evidence rather than its admissibility. The circuit court stated
that it would be a fair line of questioning to ask Elkshoulder
why the tape had been made, but that the DPD could not be
questioned as a witness.
Walton argued that the DPD made himself a witness by
being directly involved in transferring the tape to CD format.
Walton argued that he should be able to inquire about the
conversation the DPD had with Elkshoulder prior to the making of
the recording.
Walton filed a memorandum in support of his request to
question Elkshoulder regarding his discussions with the DPD
regarding the recording. The court sustained Elkshoulder’s
objection as to attorney-client communications, but ruled that
Elkshoulder was subject to cross-examination concerning his
purpose and motive for recording the conversation, and concerning
various copies of the recording. The circuit court stated that
Elkshoulder laid a proper foundation for the recording, and also
stated that prior to trial, the court listened to the original CD
recording and the enhanced CD recording several times to evaluate
the content of the recording. The circuit court stated that
Walton had no legitimate need to determine what was communicated
between Elkshoulder and the DPD concerning the taped
conversation.
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The circuit court further ruled that Walton’s inquiries
regarding whether the contents of the recording that were
transferred to the CD went to the weight of the evidence and
noted that Elkshoulder had made himself subject to cross-
examination. The circuit court noted that all copies of the
recording had been available for weeks prior to trial to both the
State and Walton’s counsel to listen to and compare. The circuit
court further stated that Walton had moved to continue the trial
date on more than one occasion for the specific purpose of
conducting tests on the recording and had never filed a timely
motion regarding the recordings.
The CD version of the recording was entered into
evidence over objections by Walton and the State. The court
instructed the jury that the recording included portions of a
telephone conversation between Elkshoulder and Walton, noted that
the recording had been edited by the court, instructed that the
jury must not speculate about what may have been edited out, and
explained that the recording would be available to the jury to
listen to during deliberations. The recording was then played
for the jury.
The recording included the following exchange:
ELKSHOULDER: Dude . . . Dude . . . how many
times did you stab that guy, do you remember . . .
between you and me . . .
WALTON: I think 2-3 times . . .
ELKSHOULDER: Oh . . . okay . . . well, the
thing is this . . .
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WALTON: I just remember stabbing like to the
side . . . but 2-3 times.
Elkshoulder testified about the recording on direct
examination as follows:
BY DPD: Okay. . . . [S]o when you made these
recordings, why did you make these recordings?
A: I wanted the truth to come out. I wanted to
basically just the truth to come out.
Q: Is there a way that you had planned to
converse with [Walton] during these conversations?
A: No. When he called me the first time, that’s
when I called you . . . and then we -- we consulted.
And then the second time it wasn’t a plan, it was just
a matter of him calling and just recording and trying
to really put Mr. Walton at ease. And when I say at
ease, there were some things that I had to say that
were not true.
Q: Like what?
A: I told him I took the heat for both of us.
Again, I hadn’t talked to him in a year, I didn’t know
where he was except for the 785 area code, even [if]
it was his phone. So, again, with respect to the
recording of the conversations that we had, there were
other things in there, again to put him at ease, I had
to say that were not true.
Q: So the first recording, this was -- well, the
first phone call was, again, what day?
A: November 17th and that was in the morning --
Q: Yeah.
A: -- on or around about 10 AM. And the second
phone call was the same day that evening.
Q: Okay. The second phone call you called him or
he called you?
A: He called me.
On cross-examination by Walton, Elkshoulder
acknowledged that the backpack found in CW’s taxi had his name
written on it, but testified that he had given the backpack to
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Walton more than one month before the incident. Elkshoulder said
a hair-band and computer flash drive that police found in the
backpack belonged to him, but that he did not know whether a
Powerhouse Gym membership card found in the backpack was the one
Walton had given to him.11
On cross-examination by the State, Elkshoulder
testified that he immediately exited the taxi when Walton jumped
on CW because he was scared, but acknowledged that he did not see
Walton with a knife or other weapon. According to Elkshoulder,
when he was 30 or 40 feet away from the taxi, he heard its horn
honking, turned, and saw Walton running toward him, then
Elkshoulder began running while Walton began calling his name.
Elkshoulder stated that he saw blood on Walton’s shorts and
shirt.
Elkshoulder further testified that he later spoke to
Rodrigues on the telephone and told him that he did not mean for
anyone to get hurt and that he “didn’t have anything to do with
it.” Elkshoulder stated that he recorded his conversation with
Walton because Elkshoulder wanted the truth to come out.
3. Walton’s Defense
Walton did not present evidence or testimony.
11
The State subsequently obtained a stipulation from Walton and
Elkshoulder that HPD Detective Ogawa would testify if recalled that on
November 17, 2008, he contacted Powerhouse Gym owner Alvin Paguio regarding a
gym membership card found in the backpack discovered in CW’s taxi, and that
Paguio told Ogawa that the name the gym associated with a membership number on
the card was Elkshoulder.
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4. State’s Rebuttal
The State recalled Rodrigues, who testified that when
he spoke to Elkshoulder on the telephone regarding Elkshoulder’s
face being on the news, he was certain that Elkshoulder did not
say “I didn’t have anything to do with it.”
5. Jury Instructions
On May 27, 2011, Walton joined Elkshoulder’s running
objection to all jury instructions as to the charged offenses and
lesser included offenses, arguing that the words “as a principal”
should be added to clarify that the instructions regarding
substantive offenses apply to a defendant charged as a principal
rather than as an accomplice. Walton also joined Elkshoulder’s
objection to the circuit court’s instruction regarding accomplice
liability,12 asserting a need to clarify and emphasize that the
intent to promote or facilitate the commission of a specific
offense was required. The circuit court approved the jury
instructions over the above objections and so instructed the
jury. Specifically, the court instructed the jury with regard to
Attempted Murder in the Second Degree as follows:
A person commits the offense of Attempted Murder
in the Second Degree if he intentionally engages in
conduct which, under the circumstances as he believes
them to be, is a substantial step in a course of
conduct intended or known to cause the death of
another person.
There are two material elements of the offense
of Attempted Murder in the Second Degree, each of
12
Specifically, Walton and Elkshoulder objected to Court’s
Supplemental Instruction No. KK.
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which the prosecution must prove beyond a reasonable
doubt.
These two elements are:
1. That on or about November 15, 2008, in the
City and County of Honolulu, State of Hawai#i, the
Defendant John Walton intentionally engaged in
conduct; and
2. That the conduct, under the circumstances as
defendant believed them to be, was a substantial step
in a course of conduct intended or known to be
practically certain by the defendant to cause the
death of another person.
Conduct shall not be considered a substantial
step unless it is strongly corroborative of the
defendant’s intent to commit Murder in the Second
Degree, which is intentionally or knowingly causing
the death of another person.
The circuit court also instructed the jury on the
lesser included offenses of Assault in the First Degree, Assault
in the Second Degree, Assault in the Third Degree, and Reckless
Endangering in the Second Degree and similarly did not include
the words “as a principal” in those instructions.
Finally, the court instructed the jury with regard to
accomplice liability as follows:
A defendant charged with committing an offense
may be guilty because he is an accomplice of another
person in the commission of the offense. The
prosecution must prove accomplice liability beyond a
reasonable doubt.
A person is an accomplice of another in the
commission of an offense if:
1. With the intent to promote or facilitate the
commission of the offense he
a. solicits the other person to commit it; or
b. aids or agrees or attempts to aid the other
person in the planning or commission of the offense.
Mere presence at the scene of an offense or
knowledge that an offense is being committed, without
more, does not make a person an accomplice to the
offense. However, if the person plans or participates
in the commission of an offense with the intent to
promote or facilitate the offense, he is an accomplice
to the commission of the offense.
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6. Closing arguments
The State argued that both Walton and Elkshoulder
participated in the stabbing incident. The State summarized CW’s
testimony:
Who stabbed you? There were only three people
in the car. [CW] was in the front, the two defendants
in the back. Who stabbed you? The Asian guy. Are
you absolutely certain? Yes, it was the Asian guy.
Who held you down with both hands while the knife is
being pushed down on you? He talks about the shorter
guy, meaning [] Walton, pushing him down while he
still saw the knife over him. [CW] says there were
three hands on me and one hand holding the knife.
The State further argued that although there was “no
doubt” that the recorded phone conversation was between
Elkshoulder and Walton, “the circumstances under which they took
place [were] highly suspect” because at the time of the
recording, Elkshoulder was awaiting trial and Walton was “nowhere
to be found.”
The State also highlighted testimony about Elkshoulder
being “the leader and [Walton] being the follower,” and argued
that Walton was guilty as an accomplice.
[W]e don’t need to prove who was the principal
and who was the accomplice. The charge is Attempted
Murder in the Second Degree, one or both of them
stabbed him and one or both of them helped each other.
Now, [] Elkshoulder has accused [] Walton of
doing it and he uses this tape. [] Walton says yeah,
I stabbed him two to three times. On the assumption
that you find the tape credible and you believe that
[] Walton is actually the person who stabbed the
taxicab driver, [CW], two to three times, he says that
right on the tape and you have that tape before you,
[] Elkshoulder was still there and still held.
If [CW] was mistaken in who actually stabbed
him, certainly he was not mistaken that both of them
were in the car, two sets of hands were on him.
Now, when the defense of [] Elkshoulder presents
this tape to you he talks about how many times did you
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stab, two to three times. But listen to that tape
some more as you hear [] Walton saying, you know, he’s
saying they’re talking about the honking of the horn.
[] Walton says, you know, this whole F-ing thing, the
honking of the horn, and then -- and then me and you
skip out. Then me and you skip out. Listen to that
part of that tape.
And when you listen to that tape you’re going
to see [] Elkshoulder has a lot of time to insert his
own defense there, he’s talking about what he did,
what he did, what he did. It’s almost like a setup,
almost like a setup. But [] Walton says yeah, but the
honking of the horn and then you and I got out. That
means . . . [Elkshoulder] was in there, was in there.
By [] Walton’s own admission of himself being
involved, he involves [] Elkshoulder as well.
So if [CW] was mistaken, the bottom line
is so what? If he’s mistaken, then it was [Walton]
that stabbed him and it was [Elkshoulder] who held him
down. Either way they’re both guilty either as the
person who actually stabbed him or an accomplice.
Elkshoulder argued that Walton was the person who
stabbed CW, and that the “sudden and unexpected attack was . . .
a surprise to [] Elkshoulder, who was an unwitting, accidental
spectator and witness to this incident.” Elkshoulder argued that
Walton’s recorded statement that he stabbed CW “about two to
three times . . . explains all the injuries that you see here
that was suffered by [CW].” Elkshoulder also argued that CW’s
recollection of certain details the day of the incident – such as
which passenger directed him where to drive – was inconsistent.
Walton argued that Elkshoulder’s testimony was not
credible, and that he “wasn’t being straightforward and honest
with [the jury] when he attempts to blame [] Walton for doing all
of the bad things that happened later on.” Walton noted CW’s
testimony that the “Asian male” stabbed him, and that he never
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saw “the Caucasian male” with the knife. Walton further argued
that:
there is absolutely no question that [CW] has been
consistent throughout all of his testimony and his --
and his contact with the police and with the court
that it was not [] Walton that did anything. [] Walton
didn’t have a knife, he was seated in the back seat
when [CW] was first stabbed, and that it was the guy,
the fat guy, the big guy, the Asian guy, the guy who
he struggled with with the knife, [] Elkshoulder, who
stabbed him.
Walton also argued that the recording “in which
[Walton] is claimed to have stated that he stabbed [CW]” was not
credible:
. . . First of all, who provided the tape
recorder? . . . It wasn’t . . . [the DPD]. The
testimony was that he didn’t have a hand in actually
setting up the conversation and taping it. Did
Detective Ogawa, the police investigator who was
responsible for being the lead investigator in this
case, did he have a copy of the tape recording so that
he could conduct a police investigation about it?
Well, you heard the detective testify right here
before you that he had been told about the recording
but never got a copy. Never had a chance to duly take
a look at it, examine it forensically or do whatever,
never got a copy.
Well, during the trial did [] Rodrigues or []
Laumauna testify under oath subject to cross-
examination that they listened to the recording and
identified [] Elkshoulder and [] Walton on the
recording? Was there any testimony like that? No,
there wasn’t, there was no such testimony. Did the
prosecutor present the recording as part of its case?
Did [the State] say hey, we have this recording, we
want you to listen to it? No, he did not.
So what is the state of the evidence about the
recording? The only person vouching for it as being
-- as something that accurately and truly reflects
what it purports to be, by testimony here by the
evidence that is before you, ladies and gentlemen of
the jury, is [] Elkshoulder. And you heard about how
you judge credibility and [the State] went through a
whole list, including bias, motive, whatever.
Now, we would submit . . . that [] Elkshoulder
and his tape recording and his claim that it’s
truthful and accurate, is not worthy of your belief.
It’s not worthy of any type of credibility.
. . . .
. . . Was there some type of manipulation going
on with the recording? We certainly don’t know but
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. . . we would submit that given the type of
circumstances in which the recording was presented,
that it lacks credibility and it’s not worthy of your
belief.
In rebuttal, the State argued that although the
recording – which the State characterized as “suspect” – would
indicate that Walton was guilty, “that’s not how the State
believes [] Walton is guilty.”
[The] State believes [] Walton is guilty by the
very words the way [CW] told you what happened, that
upon [CW] being stabbed, he was pulled down by two of
the men and that the knife over him, he struggled with
as a third attempt was made to stab him. Whichever of
the two it may have been, [CW] believes it was
probably still [] Elkshoulder. But, regardless, the
two of them worked in concert together, they were both
participants. It wasn’t one was a witness and one did
everything else, they worked together.
. . . .
With respect to this tape, you know, well, it is
what it is. But we’re not asking you to convict []
Walton for attempted murder based on that tape. That
tape was full of deception. We don’t know what []
Elkshoulder did, but we know he’s a leader, we know
Walton is a follower, kind of clueless. We don’t know
everything about what happened with that tape but that
tape just reeks with suspicion.
If it was anymore substantial and believable,
the State would have presented it in its case-in-chief
but it is not worthy of belief. Exactly what
[Walton’s counsel] said, it is not worthy of belief.
But [CW] is worthy of belief and it is on that
evidence that we ask you to find the defendants, both
of them, guilty for both charges.
7. Verdict and sentencing
The jury found Walton guilty as charged on both counts.
In contrast, the jury found Elkshoulder guilty of Assault in the
First Degree and Robbery in the First Degree. Pursuant to a
special interrogatory, the jury found a merger of Walton’s
offenses. On August 10, 2011, the circuit court entered its
Judgment of Conviction and Sentence, convicting Walton of
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Attempted Murder in the Second Degree and Robbery in the First
Degree. The judgment dismissed the Robbery charge without
prejudice, and sentenced Walton to a life term of incarceration
with the possibility of parole for Attempted Murder in the Second
Degree.
E. ICA Appeal
In his opening brief to the ICA, Walton asserted six
points of error. First, Walton argued that the circuit court
erred in denying his motion for severance, stating that
Elkshoulder’s and his defenses were in irreconcilable conflict
with each other because Elkshoulder sought to blame Walton for
the stabbing. Second, Walton argued that the circuit court erred
in denying his motion to suppress the identifications made by
Koki and Rodrigues, and the information obtained using the GNC
card. Third, Walton argued that the circuit court erred in
admitting certain photographs.13 Fourth, Walton argued that the
circuit court erred when it admitted the recorded phone
conversation because it was not properly authenticated, was
improper hearsay, and he was denied his right to confront
Elkshoulder and the DPD about their conversations regarding the
recording. Fifth, Walton argued that the jury instructions
regarding the charged offense and lesser included offenses
“resulted in prejudicially insufficient, erroneous, inconsistent,
13
Walton does not argue this point in his application to this court.
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or misleading instructions.” Finally, Walton argued that the
State’s evidence was “defective” and that the circuit court thus
erred in denying his motion for a judgment of acquittal at the
conclusion of the State’s case.
In its Memorandum Opinion, the ICA rejected all of
Walton’s claims and affirmed the circuit court’s August 10, 2011
judgment. First, the ICA held that the circuit court did not
abuse its discretion in denying Walton’s motions for severance.
The ICA explained that although Walton’s and Elkshoulder’s
defenses “conflicted to an extent,” Walton failed to demonstrate
that the conflict alone led the jury to infer his guilt. The ICA
further explained that Walton failed to demonstrate that evidence
damaging to his case in the joint trial would not have been
admissible in a separate trial. Second, the ICA held that the
photographic line-up was not impermissibly suggestive, and that
Walton did not have a reasonable expectation of privacy in GNC’s
business records. Third, the ICA held that the recorded
telephone conversation was properly authenticated and admitted as
a statement against interest. Fourth, the ICA held that the
circuit court properly instructed the jury. Finally, the ICA
held that substantial evidence supported Walton’s conviction.14
14
The ICA also held that the circuit court properly admitted
photographs of CW’s injury. Again, Walton does not raise that issue here.
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II. Standards of Review
A. Severance of Defendants
This court reviews the denial of a motion for severance
for an abuse of discretion. State v. Matias, 57 Haw. 96, 98, 550
P.2d 900, 902 (1976); State v. Timas, 82 Hawai#i 499, 512, 923
P.2d 916, 929 (App. 1996). In deciding a motion for severance,
the trial court must “balance possible prejudice to the defendant
from joinder with the public interest in efficient use of
judicial time through joint trial of defendants and offenses
which are connected.” Matias, 57 Haw. at 98, 550 P.2d at 902.
An appellate court “may not conclude that the defendant suffered
prejudice from a joint trial unless it first concludes that a
defendant was denied a fair trial. What might have happened had
the motion for severance been granted is irrelevant speculation.”
Timas, 82 Hawai#i at 512, 923 P.2d at 929 (brackets and ellipsis
omitted) (quoting State v. Gaspar, 8 Haw. App. 317, 327, 801 P.2d
30, 35 (App. 1990)).
B. Motion to Suppress Evidence and Identification Testimony
This court reviews a trial court’s ruling on a motion
to suppress evidence de novo:
to determine whether the ruling was “right” or
“wrong.” The proponent of the motion to suppress has
the burden of establishing, by a preponderance of the
evidence, that the statements or items sought to be
excluded were unlawfully secured and that his or her
right to be free from unreasonable searches or
seizures was violated under the fourth amendment to
the United States Constitution and article I, section
7 of the Hawai#i Constitution.
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State v. Spillner, 116 Hawai#i 351, 357, 173 P.3d 498, 504 (2007)
(citations omitted).
When the defendant challenges admissibility of
eyewitness identification on the grounds of
impermissibly suggestive pre-trial identification
procedure, he or she has the burden of proof, and the
court, trial or appellate, is faced with two
questions: (1) whether the procedure was impermissibly
or unnecessarily suggestive; and (2) if so, whether,
upon viewing the totality of the circumstances, such
as opportunity to view at the time of the crime, the
degree of attention, and the elapsed time, the
witness’s identification is deemed sufficiently
reliable so that it is worthy of presentation to and
consideration by the jury.
State v. Araki, 82 Hawai#i 474, 484, 923 P.2d 891, 901 (1996)
(quoting State v. Okumura, 78 Hawai#i 383, 391, 894 P.2d 80, 88
(1995)).
C. Jury Instructions
It is the circuit court’s duty and ultimate
responsibility to ensure that the jury was properly instructed on
issues of criminal liability. State v. Kikuta, 125 Hawai#i 78,
90, 253 P.3d 639, 651 (2011). “When jury instructions, or the
omission thereof, are at issue on appeal, the standard of review
is whether, when read and considered as a whole, the instructions
given are prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively harmful and
are a ground for reversal unless it affirmatively appears from
the record as a whole that the error was not prejudicial.”
Kobashigawa v. Silva, 129 Hawai#i 313, 320, 300 P.3d 579, 586
(2013).
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D. Motion for Judgment of Acquittal/Sufficiency of Evidence
The standard to be applied by the trial
court in ruling upon a motion for a judgment
of acquittal is whether, upon the evidence
viewed in the light most favorable to the
prosecution and in full recognition of the
province of the [trier of fact], a reasonable
mind might fairly conclude guilt beyond a
reasonable doubt.
State v. Keawe, 107 Hawai#i 1, 4, 108 P.3d 304, 307 (2005). This
court employs the same standard of review in reviewing a motion
for a judgment of acquittal. Id.
III. Discussion
PART I: OPINION OF THE COURT BY RECKTENWALD, C.J.
We hold that the circuit court erred in denying
Walton’s motion for severance because Walton’s and Elkshoulder’s
irreconcilable defenses, combined with the admission of the
recorded telephone conversation, denied Walton his right to a
fair trial. Although our resolution of the severance issue is
dispositive of this appeal, we nevertheless address Walton’s
arguments concerning the suppression of evidence and jury
instructions, because those issues may arise again on remand in
Walton’s separate trial. See, e.g., State v. Solomon, 107
Hawai#i 117, 120, 111 P.3d 12, 15 (2005) (addressing points of
error “in order to provide guidance to the [trial court] on
remand”). Finally, we consider Walton’s argument that the
circuit court erred in denying his motion for a judgment of
acquittal, because the double jeopardy clauses of the United
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States Constitution and Hawai#i Constitution would prohibit
Walton’s retrial if the State had failed to adduce sufficient
evidence for a jury to find guilt beyond a reasonable doubt.
See, e.g., State v. Kalaola, 124 Hawai#i 43, 52, 237 P.3d 1109,
1118 (2010).
A. The circuit court erred in denying Walton’s motion for
severance
Walton argues that the circuit court erred in denying
his motion for severance because his and Elkshoulder’s defenses
were “inconsistent, antagonistic, and irreconcilable,” and
because he was “substantially prejudiced” by evidence admitted at
trial. Specifically, Walton argues that he suffered prejudice
because Elkshoulder was allowed to introduce the recorded
telephone conversation in which Walton admitted that he had
stabbed CW.
As set forth below, the circuit court abused its
discretion in denying Walton’s motion for severance. Under the
circumstances of this case, Walton was denied a fair trial where
he and Elkshoulder not only had irreconcilable defenses, but
Elkshoulder offered a recording containing Walton’s admission
that he stabbed CW. Walton therefore had to defend against
evidence supporting two different theories of his guilt, one
advanced by the State and one by his co-defendant.
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Hawai#i Rules of Penal Procedure (HRPP) Rule
8(b)(2011), permits joinder of two or more defendants in the same
charge:
(1) when each of the defendants is charged with
accountability for each offense included in the
charge;
(2) when each of the defendants is charged with
conspiracy and some of the defendants are also charged
with one or more offenses alleged to be in furtherance
of the conspiracy; or
(3) when, even if conspiracy is not charged and all of
the defendants are not charged in each count, the
several offenses charged:
(i) were part of a common scheme or plan; or
(ii) were so closely connected in respect to time,
place and occasion that it would be difficult to
separate proof of one charge from proof of the others.
However, “[i]f it appears that a defendant or the
government is prejudiced by a joinder of offenses or of
defendants in a charge or by such joinder for trial together, the
court may order an election or separate trials of counts, grant a
severance of defendants or provide whatever other relief justice
requires.” HRPP Rule 14.
In deciding a motion for severance, the trial court
must “balance the possible prejudice to the defendant from
joinder with the public interest in efficient use of judicial
time through joint trial of defendants and offenses which are
connected.” State v. Matias, 57 Haw. 96, 98, 550 P.2d 900, 902
(1976). An appellate court “may not conclude that the defendant
suffered prejudice from a joint trial unless it first concludes
that a defendant was denied a fair trial.” Timas, 82 Hawai#i at
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511, 923 P.2d at 929 (ellipsis and brackets omitted) (quoting
State v. Gaspar, 8 Haw. App. 317, 327, 801 P.2d 30, 35 (1990)).
The defendant bears the burden of proving a denial of a
fair trial. Timas, 82 Hawai#i at 512, 923 P.2d at 928. A joint
trial may be unfair to one defendant when: (1) the core of each
defense is in irreconcilable conflict with the other, (2) the
defendant in question is prevented from introducing evidence that
would have been admissible in that defendant’s separate trial not
involving other defendants, or (3) evidence damaging to the
defendant in question is admitted and it would not have been
admissible in that defendant’s separate trial not involving other
defendants. Gaspar, 8 Haw. App. at 327, 801 P.2d at 35; see also
Timas, 82 Hawai#i at 511, 923 P.2d at 928. As the United States
Supreme Court has observed, however, there is no test or
exclusive list of prejudices because “[t]he risk of prejudice
will vary with the facts in each case.” Zafiro v. United States,
506 U.S. 534, 539 (1993).
It is well settled that defendants are not entitled to
severance merely because their defenses are inconsistent or they
may have a better chance of acquittal in separate trials. Id. at
540. As the Ninth Circuit has explained,
Mere inconsistency in defense positions is
insufficient to find codefendants’ defenses
antagonistic. Inconsistency, alone, seldom produces
the type of prejudice that warrants reversal. The
probability of reversible prejudice increases as the
defenses move beyond the merely inconsistent to the
antagonistic.
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Mutually exclusive defenses are said to exist when
acquittal of one codefendant would necessarily call
for the conviction of the other. The prototypical
example is a trial in which each of two defendants
claims innocence, seeking to prove instead that the
other committed the crime.
United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991)
(internal citations and quotation marks omitted); United States
v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996) (“Antagonism
between defenses or the desire of one defendant to exculpate
himself by inculpating a codefendant . . . is insufficient to
require severance.”).
Although the joinder of trials in which defendants
maintain mutually exclusive defenses produces heightened dangers
of prejudice, there is no per se rule against joinder in such
cases. Tootick, 952 F.2d at 1083; Zafiro, 506 U.S. at 538
(“Mutually antagonistic defenses are not prejudicial per se.”).
Rather, “in order to establish an abuse of discretion, the
defendant[] must demonstrate that clear and manifest prejudice
did occur.” Tootick, 952 F.2d at 1083.
For example, in State v. Mabuti, 72 Haw. 106, 807 P.2d
1264 (1991), two co-defendants were jointly tried and both were
convicted of murder in the beating death of a teenager. 72 Haw.
at 109, 807 P.2d at 1266. One of the defendants, Joefrey Mabuti,
testified that he was not involved in the beating, and the other
defendant, Vicente Acosta, testified that he tried to stop the
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beating, and that he saw Mabuti participate in the beating. Id.
at 109-10, 807 P.2d at 1267.
Before Mabuti and Acosta’s joint trial, another
individual, Enrique Pintoy, confessed to his own participation in
the beating, and stated that Mabuti had participated in the
beating. Id. at at 110, 807 P.2d at 1267. Acosta sought to have
Pintoy’s confession admitted, as a statement against interest,
arguing that it was exculpatory as to himself. Id. Mabuti,
however, objected, because Pintoy’s confession was damaging to
his case. Id. After the parties redacted Pintoy’s statement,
what was left “was of little consequence,” and Acosta chose not
to use it at trial. Id.
Based, in part, on Pintoy’s confession, Acosta made
several attempts to have the trial severed. Id. at 111, 807 P.2d
at 1267. After Acosta’s initial motion was denied by a motions
judge, the trial judge twice stated that the case should have
been severed, but nevertheless denied Acosta’s motions because he
felt bound by the earlier ruling of the motions judge.15 Id. at
15
In the instant case, Judge Town originally consolidated the trial,
and Judge Garibaldi was subsequently asked to sever. In denying Walton’s
March 23, 2011 motion for severance, Judge Garibaldi noted that she was “not
inclined to alter the decision that was made by [Judge Town].” Specifically,
Judge Garibaldi explained that “[u]nless there are cogent reasons to support a
second court’s action, any modification of a prior ruling of another court of
equal and concurrent jurisdiction is deemed –- could be deemed an abuse of
discretion.” In denying Elkshoulder’s May 12, 2011 motion for severance — to
which Walton joined — Judge Garibaldi explained that she was “torn at this
point” and “not quite certain,” and that it was “a very close issue.” Judge
Garibaldi nevertheless concluded that she was not “inclined to set aside [the
court’s] prior order denying the motion to sever the trial.”
As this case makes clear, it is “very difficult for the trial
judge to make a finding on the prejudice issue before trial, as it involves
(continued...)
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110, 807 P.2d at 1267. On appeal, Mabuti and Acosta each argued
that their trials should have been severed. Id. at 113, 807 P.2d
at 1268.
This court concluded that the trial court abused its
discretion in denying Acosta’s motion for severance because he
was prejudiced by not being able to present his exculpatory
evidence, i.e., the unredacted statement of Pintoy. Id. at 114,
807 P.2d at 1269. However, this court rejected Mabuti’s argument
that the trial should have been severed. The court concluded
that Mabuti’s and Acosta’s defenses were not sufficiently
antagonistic because “any combination of guilty or not guilty
verdicts, as to either or both of these defendants, would have
withstood any complaint of inconsistent verdicts.” Id. at 113,
807 P.2d at 1268. The court further noted that Mabuti was
allowed to present all of his evidence. Id. at 113-14, 807 P.2d
at 1269.
In Tootick, three individuals — Moses Tootick, Charles
Frank, and Aaron Hart — drove to a secluded hill, where Hart was
15
(...continued)
speculation about many things which may or may not occur.” Matias, 57 Haw. at
98, 550 P.2d at 902 (quotation marks and citation omitted). Here, for
example, prior to trial it was impossible for the circuit court to know for
certain whether Elkshoulder would testify, and, consequently, whether the
recorded conversation would be offered as evidence. Because of this
difficulty in determining prejudice prior to trial, a pretrial motion for
severance must also be renewed during trial or else any claim of error will be
considered waived. State v. Balanza, 93 Hawai#i 279, 288, 1 P.3d 281, 290
(2000); State v. Hilongo, 64 Haw. 577, 578, 645 P.2d 314, 316 (1982) (“failure
to renew the motion to sever under [HRPP Rule 14] during the course of the
trial waived any claimed error”). Thus, in evaluating each successive motion
for severance, the trial court must consider anew whether “it appears that a
defendant or the government is prejudiced by a joinder of offenses or of
defendants in a charge or by such joinder for trial together.” HRPP Rule 14.
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stabbed. Hart testified that Frank stabbed him. Id. at 1080.
Frank testified that Tootick stabbed Hart. Id. at 1081. Tootick
did not testify, but his lawyer claimed that Tootick was highly
intoxicated and was either passed out or was asleep during the
entire episode. Id. The Ninth Circuit explained that “[b]ecause
only Frank and Tootick were present when Hart was attacked, and
because there was no suggestion that Hart injured himself, the
jury could not acquit Tootick without disbelieving Frank. Each
defense theory contradicted the other in such a way that the
acquittal of one necessitates the conviction of the other.” Id.
The Ninth Circuit held, therefore, that Tootick’s and Frank’s
defenses were irreconcilable. Id.
Like in Tootick, Walton’s and Elkshoulder’s defenses
were irreconcilable. Elkshoulder testified that Walton jumped on
CW and that he immediately got out of the taxi and started
walking away. In short, Elkshoulder argued that he was not in
the taxi when CW was stabbed. Walton, however, also argued that
he did not stab CW. In this regard, during his cross-examination
of CW, Walton elicited testimony confirming that it was
Elkshoulder who had initially grabbed and stabbed CW. Walton
further elicited testimony that CW never saw him holding a knife.
Walton’s and Elkshoulder’s defenses were therefore irreconcilable
because they each maintained that the other person stabbed CW.
See Tootick, 952 F.2d at 1081.
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As stated above, there is no per se rule against
joinder in trials in which defendants maintain mutually exclusive
defenses. Tootick, 952 F.2d at 1083; Zafiro, 506 U.S. at 538.
Here, however, the admission of the recording — in conjunction
with Walton and Elkshoulder’s irreconcilable defenses — deprived
Walton of a fair trial. Courts have recognized that “the primary
danger that [the rule requiring severance based on irreconcilable
defenses] seeks to avoid is a defendant faced with two
prosecutors — the state and his co-defendant.” United States v.
Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1989); United States v.
Lee, 744 F.2d 1124, 1126 (5th Cir. 1984). “The rule is also
designed to prevent a situation in which each defendant is the
government’s best witness against the other.” Lee, 744 F.2d at
1126. Here, Walton was in effect forced to face two prosecutors,
the State and Elkshoulder, each of which offered different
evidence supporting conflicting theories of his culpability.
On the recording, Walton admitted to stabbing CW “2-3
times.” Elkshoulder relied on the recording to argue that Walton
had stabbed CW. In contrast, the State asserted that “it was not
Walton who stabbed . . . [CW], it was Elkshoulder who stabbed
him,” while Walton helped to hold CW down.
Because the recording was inconsistent with the State’s
theory of the case, the State contended that it was “scripted”
and “rehearsed.” The State repeated its position during its
closing argument, arguing that “the tape was rehearsed,”
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specifically noting that the circumstances under which the
recording was made were “highly suspect.” And, during its
rebuttal argument, the State argued that the “tape just reeks
with suspicion,” noting that “[i]f it was anymore substantial and
believable, the State would have presented it in its case in
chief but it is not worthy of belief.” Nevertheless, during its
closing argument, the State argued that the jury could still find
Walton guilty even if the jury found the tape credible. In
effect, the State was able to rely on its primary theory (i.e.,
that Walton held CW down), while simultaneously suggesting that
the jury could accept Elkshoulder’s theory (i.e., that Walton
wielded the knife). Similarly, Walton had to defend against both
theories.
As it turned out, Elkshoulder’s recording appears to
have been persuasive evidence against Walton. Despite the
State’s theory of the case, and CW’s testimony in support of that
theory, the jury — after hearing Walton’s admission on the
recording — convicted Walton of attempted murder, but convicted
Elkshoulder only of assault in the first degree. It is clear,
therefore, that Elkshoulder’s offering of a recording in which
Walton confessed to stabbing CW, where the State challenged the
veracity of the recording, and where Walton’s apparent confession
was inconsistent with the State’s theory of the case, prejudiced
Walton and denied him a fair trial.
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Courts of this State have stated that “speculation
about what might have happened had a motion for severance been
granted is irrelevant,” and that the “only relevant facts are
what actually happened.” Gaspar, 8 Haw. App. at 328, 801 P.2d at
36 (rejecting defendant’s argument that he did not testify
because his testimony would have implicated his co-defendant, who
would have retaliated by testifying and incriminating defendant);
State v. White, 5 Haw. App. 670, 672, 706 P.2d 1331, 1333 (1985)
(finding that trial court did not abuse its discretion in denying
defendant’s motion for severance where defendant was not
prevented from presenting his evidence, and no damaging evidence
was introduced in the joint trial that would not have been
admissible in defendant’s separate trial). In this case “what
actually happened” prejudiced Walton because the admission of the
recording unfairly forced Walton to, in effect, confront two
prosecutors.
Moreover, it appears that, had Walton’s trial been
severed, the recording would not have been offered by the State
in his separate trial. It was Elkshoulder who authenticated the
tape through his own testimony. As stated above, the State
attacked the recording as “rehearsed,” “scripted,” “highly
suspect,” “reek[ing] with suspicion,” and “not worthy of belief.”
Any argument by the State that it would have offered the
recording in Walton’s separate trial, therefore, would appear to
be inconsistent with that position. Moreover, absent the
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testimony of Elkshoulder, it is unclear how the State would have
been able to authenticate the recording.
Accordingly, on the facts of this case, Walton was
denied a fair trial. The circuit court therefore abused its
discretion in denying Walton’s motion for severance.
B. The circuit court correctly denied Walton’s motion to
suppress identification evidence
Walton also challenges the admissibility of
identification evidence from two of his co-workers, Koki and
Rodrigues. Specifically, Walton argues that the “circumstances
leading up to the photographic line-up, including repeated prior
viewings, and prior comments and opinions from others, resulted
in bolstering and tainting the subsequent photo line-up procedure
as well as the in-court trial identifications.”
At trial, Rodrigues testified that he identified Walton
in the surveillance photos. Although Koki did not testify at
trial, Detective Ogawa testified that Koki identified the men in
the surveillance photos as Walton and Elkshoulder, and that Koki
also identified Walton and Elkshoulder in photo line-ups.
Laumauna also testified at trial that the men in the surveillance
photos were Walton and Elkshoulder. Although Walton sought to
suppress the identification evidence from Rodrigues and Koki, he
never sought to suppress Laumauna’s testimony. Given Laumauna’s
identification of Walton and Elkshoulder, it is therefore unclear
what prejudice, if any, Walton suffered as a result of
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Rodrigues’s and Koki’s identifications. Nevertheless, for the
reasons set forth below, we conclude that the circuit court did
not err in denying Walton’s motion to suppress the identification
evidence.
In general, “[a] conviction based on eyewitness
identification at trial will be set aside if a pretrial
identification by photographic display was conducted in a manner
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” State v. Malani,
59 Haw. 167, 170, 578 P.2d 236, 238 (1978). Specifically,
When the defendant challenges admissibility of
eyewitness identification on the grounds of
impermissibly suggestive pretrial identification
procedure, he or she has the burden of proof, and the
court, trial or appellate, is faced with two
questions: (1) whether the procedure was impermissibly
or unnecessarily suggestive; and (2) if so, whether,
upon viewing the totality of the circumstances, such
as opportunity to view at the time of the crime, the
degree of attention, the accuracy of prior
description, the level of certainty, and the elapsed
time, the witness’ identification is deemed
sufficiently reliable so that it is worthy of
presentation to and consideration by the jury.
State v. DeCenso, 5 Haw. App. 127, 131, 681 P.2d 573, 577-78
(1984).
As a preliminary matter, we note that this case does
not raise many of the concerns usually associated with eyewitness
identifications because Koki and Rodrigues did not witness the
incident, and neither of them identified Walton as participating
in the criminal conduct at issue in this case. See, e.g., State
v. Cabagbag, 127 Hawai#i 302, 310-11, 277 P.3d 1027, 1035-36
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(2012) (discussing recent studies on the reliability of
eyewitness identifications). Instead, Rodrigues and Koki merely
confirmed the identity of Elkshoulder and Walton in surveillance
camera photos and photo line-ups, based on their familiarity with
Walton and Elkshoulder from work. In any event, the
identification process used in this case was not improper.
As stated above, at Walton’s motion to suppress
hearing, Rodrigues testified that he went to an online news
website to view photos of two men “accused of a crime” after his
supervisor called him and told him “to check out the news.”
Rodrigues stated that the photos were “kind of blurry but . . .
there’s certain things that you can pick out.” Rodrigues stated
that he looked at the photos on the website “[a]bout 20 times”
and consulted with his family, who had met Elkshoulder.
Rodrigues testified that, although the photos on the website were
“kind of hard,” “once I seen [the photos] on the news I knew
definitely” that the photos depicted Walton and Elkshoulder.
Rodrigues explained that he was able to identify Walton by “[h]is
stature, the way he –- just the overall appearance, the style of
his hair, the glasses, the backpack, just that kind of things in
nature.” Rodrigues further explained that he had been
supervising Walton at work for about five months, and that he had
been supervising Elkshoulder for about seven months. Rodrigues
stated that a day or two later, police contacted him and showed
him the same surveillance photo, and that, about a month later,
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he was contacted by police to view a photographic lineup, from
which he identified Walton.
Koki similarly testified that he received a phone call
from someone who told him to look at a surveillance photo in an
online news report. The person told Koki, “I think it’s one of
your guys” but did not mention any names. Koki stated that he
looked at the photo online about ten times over ten minutes,
after which he called his manager and stated, “I believe this is
[Elkshoulder] and [Walton].” Koki explained that he concluded on
his own that it was Elkshoulder and Walton in the photo. Koki
noted that he identified Elkshoulder in the photo by his
clothing and hair, and identified Walton by his hair and the
backpack. Koki stated that almost a month later, he identified
Walton and Elkshoulder from a lineup of photos.
In other words, Rodrigues and Koki each identified
Walton and Elkshoulder as the men depicted in the surveillance
photograph before they had been contacted by the police. Based
on their regular contact with Elkshoulder and Walton, Rodrigues,
and Koki were able to identify them as the individuals depicted
in the news segment and the photo line-up. The circuit court
correctly concluded, therefore, that Koki and Rodrigues
identified Walton and Elkshoulder independently as a result of
their familiarity with them.
Moreover, the photographic line-up was not
impermissibly suggestive. Detective Michael Ogawa testified that
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he put together a photographic lineup using photos from Hawai#i
driver’s licenses and state IDs, and showed them to Rodrigues and
Koki. Detective Ogawa also stated that he showed Rodrigues and
Koki photographs taken from the surveillance video. The images
included in the photo line-up are not suggestive, and the record
does not indicate that the photo line-up was otherwise conducted
in an impermissibly suggestive manner. In this regard, the
police first showed Rodrigues and Koki the surveillance photo and
then showed them the photo line-up. Rodrigues and Koki then each
identified Walton as a person with whom they had worked. The
circuit court correctly concluded, therefore, that the photo
line-up was not impermissibly suggestive. Finally, even assuming
that the photo line-up was impermissibly suggestive, under the
totality of the circumstances, Rodrigues’s and Koki’s
identifications of Walton were sufficiently reliable because of
their familiarity with Walton and Elkshoulder from work. See
DeCenso, 5 Haw. App. at 131, 681 P.2d at 577-78. For the
foregoing reasons, the circuit court correctly denied Walton’s
motion to suppress.
C. The circuit court properly instructed the jury
Walton argues that the circuit court erred in
instructing the jury because the instructions failed to
distinguish between liability as a principal and liability as an
accomplice. Specifically, Walton asserts that “the words ‘as a
principal’ should [have been] included in all substantive offense
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instructions, and the instruction that the accomplice must have
the specific intent or conscious object to commit the underlying
crime.” Walton argues, therefore, that the instructions were
“prejudicially insufficient, erroneous, inconsistent, or
misleading.”
It is the circuit court’s duty and ultimate
responsibility to ensure that the jury was properly instructed on
issues of criminal liability. State v. Kikuta, 125 Hawai#i 78,
90, 253 P.3d 639, 65 1 (2011).
When jury instructions, or the omission thereof, are
at issue on appeal, the standard of review is whether,
when read and considered as a whole, the instructions
given are prejudicially insufficient, erroneous,
inconsistent, or misleading. Erroneous instructions
are presumptively harmful and are a ground for
reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial.
Kobashigawa v. Silva, 129 Hawai#i 313, 320, 300 P.3d 579, 586
(2013).
Under Hawai#i law, a person is “guilty of an offense if
it is committed by his own conduct or by the conduct of another
person for which he is legally accountable, or both.” HRS § 702-
221(1). A person is “legally accountable” for the conduct of
another person when:
(a) Acting with the state of mind that is sufficient
for the commission of the offense, he causes an
innocent or irresponsible person to engage in such
conduct; or
(b) He is made accountable for the conduct of such
other person by this Code or by the law defining the
offense; or
(c) He is an accomplice of such other person in the
commission of the offense.
HRS § 702-221(2).
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A person is an accomplice of another person in the
commission of an offense if:
(1) With the intention of promoting or facilitating
the commission of the offense, the person:
(a) Solicits the other person to commit it; or
(b) Aids or agrees or attempts to aid the other person
in planning or committing it; or
(c) Having a legal duty to prevent the commission of
the offense, fails to make reasonable effort so to do;
or
(2) The person’s conduct is expressly declared by law
to establish the person’s complicity.
HRS § 702-222 (emphasis added).
Here, the circuit court instructed the jury with
respect to accomplice liability as follows:
A defendant charged with committing an offense
may be guilty because he is an accomplice of another
person in the commission of the offense. The
prosecution must prove accomplice liability beyond a
reasonable doubt.
A person is an accomplice of another in the
commission of an offense if:
1. With the intent to promote or facilitate the
commission of the offense he
a. solicits the other person to commit it; or
b. aids or agrees or attempts to aid the other
person in the planning or commission of the offense.
Mere presence at the scene . . . of an offense
or knowledge that an offense is being committed,
without more, does not make a person an accomplice to
the offense. However, if a person plans or
participates in the commission of an offense with the
intent to promote or facilitate the offense, he is an
accomplice to the commission of the offense.
A person is not guilty of an offense unless the
State proves beyond a reasonable doubt that the person
acted with the required states of mind, as these
instructions specify, with respect to each element of
the offense. The instruction for the offense charged
specifies the states of mind required to be proved.
The circuit court also instructed the jury on the
charged offenses, the lesser included offenses, and the states of
mind associated with each of those offenses. Accordingly, the
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circuit court’s instructions to the jury accurately represented
the relevant law.
Nevertheless, Walton argues that the words “‘as a
principal’ should [have been] included in all substantive offense
instructions.” That argument is unfounded. As the commentary on
HRS § 702-221(1) states, “[d]istinctions between principals and
accessories are dispensed with and a defendant may be convicted
directly of an offense committed by another for whose conduct the
defendant is accountable.” See State v. Fukusaku, 85 Hawai#i
462, 489, 946 P.2d 32, 59 (1997) (same).
Walton’s argument that the circuit court should have
instructed the jury that “the accomplice must have the specific
intent or conscious object to commit the underlying crime” is
similarly without merit, since the circuit court’s instructions
accurately stated the relevant law. The circuit court instructed
the jury that “[a] defendant charged with committing an offense
may be guilty because he is an accomplice of another person in
the commission of the offense.” See HRS § 702-221(1) (“A person
is guilty of an offense if it is committed by his own conduct or
by the conduct of another person for which he is legally
accountable, or both.”); HRS § 702-221(2) (“A person is legally
accountable for the conduct of another person when . . . he is an
accomplice of such other person in the commission of the
offense.”). The circuit court further instructed the jury that:
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A person is an accomplice of another in the commission
of an offense if:
1. With the intent to promote or facilitate the
commission of the offense he
a. solicits the other person to commit it; or
b. aids or agrees or attempts to aid the other
person in the planning or commission of the offense.
This instruction accurately states the law under HRS
§ 702-222. No further instruction, therefore, was required, and
the ICA correctly concluded that the circuit court’s instructions
were not erroneous, misleading, or prejudicially insufficient.
D. The circuit court correctly denied Walton’s motion for
judgment of acquittal since substantial evidence supported
Walton’s conviction
Finally, Walton argues that the circuit court erred in
denying his motion for judgment of acquittal, and that the
evidence was insufficient to support his conviction. Walton’s
arguments in this regard are meritless.
“The standard to be applied by the trial court in
ruling upon a motion for a judgment of acquittal is whether, upon
the evidence viewed in the light most favorable to the
prosecution and in full recognition of the province of the [trier
of fact], a reasonable mind might fairly conclude guilt beyond a
reasonable doubt.” Keawe, 107 Hawai#i at 4, 108 P.3d at 307.
This court employs the same standard of review in reviewing a
motion for a judgment of acquittal. Id.
In reviewing the sufficiency of the evidence supporting
a conviction on appeal, the evidence adduced at trial must be
considered in the strongest light for the prosecution. State v.
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Bailey, 126 Hawai#i 383, 398, 271 P.3d 1142, 1157 (2012). “The
test on appeal is not whether guilt is established beyond a
reasonable doubt, but whether there was substantial evidence to
support the conclusion of the trier of fact.” Id. at 399, 271
P.3d at 1158 (citation omitted). “‘Substantial evidence’ as to
every material element of the offense charged is credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion.”
Id. (quotation marks and citation omitted).
Based on the statutory elements of the offense of
attempted murder in the second degree, the State was required to
establish beyond a reasonable doubt that Walton intentionally
engaged in conduct which, under the circumstances as Walton
believed them to be, constituted a substantial step in a course
of conduct intended or known by Walton to cause the death of CW.
See HRS §§ 705-500 and 707-701.5; State v. Kekona, 120 Hawai#i
420, 443, 209 P.3d 1234, 1257 (App. 2009).
At trial, CW testified that, after his neck was
initially cut, Walton and Elkshoulder pinned him down. CW
further testified that, as the two men were holding him down, he
saw a hand holding a knife start stabbing him.
CW also identified the two men depicted in the
surveillance photos as the men he had picked up and who later
attacked him. Detective Ogawa similarly testified that CW had
identified the two men depicted in the photograph as the two men
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that had attacked him. And Rodrigues and Laumauna each
identified the men in the photograph as Elkshoulder and Walton.
Finally, Dr. Yost testified that CW suffered two stab
wounds to his neck, lacerations on his right forearm and left
hand, and a puncture wound on his right hand. Dr. Yost further
testified that one of CW’s wounds could have caused death if it
had gone untreated.
Viewing this evidence in the light most favorable to
the State, a reasonable mind might fairly conclude Walton’s guilt
beyond a reasonable doubt. The aforementioned testimony placed
Walton in CW’s taxi, and, at the very least, supports the
conclusion that Walton held CW down while he was stabbed. The
circuit court, therefore, correctly denied Walton’s motion for
judgment of acquittal, and Walton’s conviction was supported by
substantial evidence.
IV. Conclusion
For the foregoing reasons, we vacate the ICA’s June 21,
2013 judgment, and the circuit court’s August 10, 2011 judgment
of conviction and sentence, and remand this case to the circuit
court for a new trial.
Richard S. Kawana /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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PART II: MOTION TO SUPPRESS, OPINION OF THE COURT BY ACOBA, J.,
WITH WHOM McKENNA AND POLLACK, J., JOIN
Article 1, section 7 of the Hawai#i Constitution16
protects all information in which individuals have a legitimate
expectation of privacy. Accordingly, the bare assertion that
information was disclosed to a third party does not place such
information outside the parameters of article 1, section 7.
Rather, the protection afforded to information disclosed to a
third party must be determined by examining whether an individual
reasonably expected such information to remain private as to
others and whether society would view such expectation as
reasonable. Thus, we must respectfully disagree with the holding
of the Intermediate Court of Appeals (ICA) that article 1,
section 7 “does not apply to basic information revealed to a
third party, ‘even if the information is revealed on the
assumption that it will be used only for a limited purpose and
the confidence placed in the third party will not be betrayed.’”
State v. Walton, No. CAAP-11-0000667, 2013 WL 2190159, at *5
(App. May 21, 2013) (mem.) (quoting United States v. Miller, 425
U.S. 435, 443 (1976)). This rule is untenable in a technological
16
Article 1, section 7 of the Hawai#i Constitution provides as
follows:
The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches,
seizures and invasions of privacy shall not be violated; and
no warrants shall issue but upon probable cause, supported
by oath or affirmation, and particularly describing the
place to be searched and the persons or things to be seized
or the communications sought to be intercepted.
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age where in the ordinary course of life, individuals will of
necessity have disclosed a boundless amount of information to
third parties.
I.
A.
The search in the instant case involves a General
Nutrition Corporation (GNC) membership card located in a backpack
found at the scene of the crime. To recount briefly, after
stabbing the complaining witness (CW), the assailants fled from
the scene, leaving behind a backpack. Prior to searching the
backpack, police obtained a warrant to search the backpack and
any or all closed containers within the backpack for “[a]rticles
of personal property tending to establish the identity of the
person in control” of the backpack:
You Are Commanded to Search:
A. A black and blue, nylon backpack . . . which was
recovered by Honolulu Police Department . . . officers
at 3291 Pinaoula Street . . . .
B. Any and all closed containers located within Item A,
as described above, capable of concealing the
whereabouts of the below mentioned property:
For the following property:
Any and all evidence pertaining to a Robbery in the First
Degree . . . including, but not limited to:
1. Unknown denominations of United States paper
currencies taken in the aforementioned Robbery in the
First Degree case;
2. One (1) unknown make knife, with an unknown blade
length, and grip;
3. Articles of personal property, tending to establish
the identity of [the] person in control of said
backpack and property, including, but not limited to:
personal identification, bills, bank account
statements, checks, photographs, receipts, agreements,
letters, lists, notes, personal telephone lists,
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photographs, books, and other information and
documents tending to establish ownership of said
backpack, and/or property[.]
[RA, Dkt. 4:106] (Emphasis added.) Inside the backpack, the
police found the GNC card containing a membership number but no
other identifying information. Police officers contacted GNC to
obtain the name17 associated with the number on the membership
card. GNC informed police that the card belonged to
Petitioner/Defendant-Appellant John Walton (Walton).18
B.
Before trial, Walton filed a motion to suppress, inter
alia, the information recovered from GNC regarding the identity
of the card’s owner. Walton maintained that the card constituted
a “paper [or] effect” under article 1, section 7 of the Hawai#i
Constitution and therefore the police were “required to obtain a
warrant to obtain the information represented by the registration
number of the gold card.”
The Circuit Court of the First Circuit (the court19)
concluded that the “inquiry to the Ala Moana GNC store in order
to establish ownership of the GNC card . . . was within the realm
of the search warrant” because “[a] plain reading of the warrant
17
Walton’s motion to suppress also asserted that police obtained his
address from GNC, however, at trial police testified only that the inquiry to
GNC revealed Walton’s name.
18
It appears that no other evidence introduced at trial was the
fruit of the search. In his Application, Walton does not identify any
specific items introduced at trial that was a fruit of the search.
19
The Honorable Collette Y. Garabaldi presided.
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and its specificity with respect to the contents and purposes
including establishing the identification of the owner of the
backpack” showed that the search was permissible. At trial,
Walton was subsequently convicted of attempted murder in the
second degree.20
II.
On appeal to the ICA, Walton again challenged the
inquiry to GNC regarding the ownership of the card as
unconstitutional. Walton again argued that police were required
to obtain a search warrant to “learn the identity of the owner of
the card by using the serial number on it.” The ICA did not
discuss the court’s conclusion that the inquiry to GNC was
“within the realm of the search warrant.” Instead, the ICA
determined that this search was not prohibited by article 1,
section 7 of the Hawai#i Constitution because, inter alia, Walton
“voluntarily disclosed [his name] to GNC as part of a business
transaction.” Walton, 2013 WL 2190159, at *5. In reaching this
conclusion, the ICA relied on Miller and this court’s decision in
State v. Klattenhoff, 71 Haw. 598, 606, 801 P.2d 548, 552 (1990).
20
At trial, Walton’s co-defendant Courage Elkshoulder introduced a
recording of a phone conversation where Walton allegedly confessed to stabbing
CW. [Tr. 5/26/11, Dkt. 35:15] Elkshoulder testified that he spoke to his
attorney prior to recording the conversation. [Tr. 5/24/11, Dkt. 33:106]
However, based on the attorney-client privilege, the court refused to allow
Walton to cross-examine Elkshoulder or to examine Elkshoulder’s attorney.
[Tr. 5/26/11, Dkt. 35:8] Inasmuch as on remand Elkshoulder will not be
Walton’s co-defendant, it is not clear that the recorded conversation will be
introduced into evidence. However, should the conversation be introduced,
limitations on Walton’s examination of Elkshoulder or his attorney would
present serious constitutional issues. See State v. Peseti, 101 Hawai#i 172,
182, 65 P.3d 119, 129 (2003).
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In Miller, in response to subpoenas,21 the presidents
of two different banks produced the defendant’s “records of
accounts,” including “checks, deposit slips, [] financial
statements, and [] monthly statements.” 425 U.S. at 438. The
defendant challenged the subpoenas as invalid under the Fourth
Amendment. Id. at 439.
However, the Supreme Court rejected the defendant’s
contention that he had a legitimate expectation of privacy in the
bank records. Id. at 442. According to the Court, “[t]he checks
are not confidential communications but negotiable instruments to
be used in commercial transactions.” Id. Additionally, “[a]ll
of the documents obtained, including financial statements and
deposit slips, contain only information voluntarily conveyed to
the banks and exposed to their employees in the ordinary course
of business.” Id. The information was not protected by the
United States Constitution because “the Fourth Amendment does not
prohibit the obtaining of information revealed to a third party
and conveyed by him [or her] to government authorities, even if
the information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed in the
third party will not be betrayed.” Id. at 443.
21
The Fifth Circuit had concluded that the subpoenas did not
“constitute adequate legal process” under the Fourth Amendment. Miller, 425
U.S. at 439 (internal quotation marks omitted). The validity of the subpoenas
was not discussed either by the majority or the dissents in light of the
majority’s conclusion that the Fourth Amendment did not apply. See id. at 446
n.9.
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However, the dissenting opinion in Miller referred to a
California Supreme Court opinion where “‘[r]epresentatives of
several banks testified . . . that information in their
possession regarding a customer’s account is deemed by them to be
confidential.” Miller, 425 U.S. at 450 (Brennan, J., dissenting)
(quoting Burrows v. Superior Court, 529 P.2d 590, 593 (1974)).
In that situation, “‘[a] bank customer’s reasonable expectation
is that absent compulsion by legal process, the matters he
reveals to the bank will be utilized by the bank only for
internal banking purposes.’” Id. (quoting Burrows, 529 P.2d at
593). Additionally, “‘the disclosure by individuals or business
firms of their financial affairs to a bank is not entirely
volitional, since it is impossible to participate in the economic
life of contemporary society without maintaining a bank account.”
Id. at 451 (quoting Burrows, 529 P.2d at 596).
Finally, “[f]inancial transactions can reveal much
about a person’s activities, associations, and beliefs.” Id. at
452 (quoting Burrows, 529 P.2d at 595). “‘To permit a police
officer access to these records without any judicial control as
to relevancy or other traditional requirements of the legal
process, and to allow the evidence to be used in any subsequent
criminal prosecution against a defendant, opens the door to a
vast and unlimited range of very real abuses of police power.’”
Id. at 451 (quoting Burrows, 529 P.2d at 596). Thus, Justice
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Brennan would have held that the bank records were entitled to
Fourth Amendment protection.22 Id. at 454.
Similarly, in Smith v. Maryland, 442 U.S. 735 (1979),
the police, acting without a warrant, installed a “pen register”
on the defendant’s phone. Id. at 737. The pen register revealed
to law enforcement the numbers dialed by the defendant’s phone.
Smith, 442 U.S. at 741. The Supreme Court rejected the
defendant’s claim that the warrantless installation of the pen
register constituted an illegal search, because “[t]his Court
consistently has held that a person has no legitimate expectation
of privacy in the information he voluntarily turns over to third
parties.” Id. at 743-44. The Court explained that when the
defendant “used his phone, [he] voluntarily conveyed numerical
information to his telephone company and ‘exposed’ that
information to its equipment in the ordinary course of business.”
22
Justice Brennan also added that the California Supreme Court
decision in Burrows “strikingly illustrates the emerging trend among high
state courts of relying upon state constitutional protections pervading
counterpart provisions of the United States Constitution, but increasingly
being ignored by decisions of this Court.” Miller, 425 U.S. at 454-55
(Brennan, J., dissenting).
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Id. at 744. Thus, the court held that the Fourth Amendment did
not protect the information recovered from the pen register. Id.
But, Justice Stewart’s dissenting opinion argued that
“it is simply not enough to say . . . that there is no legitimate
expectation or privacy in the numbers dialed [on a phone] because
the caller assumes the risk that the telephone company will
disclose them to the police.” Id. at 747 (Stewart, J.,
dissenting). According to Justice Stewart, no telephone user
“would be happy to have broadcast to the world a list of the
local or long distance numbers they have called,” because “such a
list . . . easily could reveal the identities of the persons and
the places called, and thus reveal the most intimate details of a
person’s life.” Id. at 748. Therefore, the “information
obtained by pen register surveillance is information in which the
telephone subscriber has a legitimate expectation of privacy.”
Id.
Additionally, Justice Marshall’s dissenting opinion
explained that “constitutional protections are not abrogated
whenever a person apprises another of facts valuable in criminal
investigations,” because individuals may disclose information to
a third party with the expectation that it will not be disclosed
further. Id. at 748-49 (Marshall, J., dissenting) (citations
omitted). Justice Marshall also noted that “unless a person is
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prepared to forgo use” of a telephone, which “for many has become
a personal or professional necessity, he cannot help but accept
the risk of surveillance.” Smith, 442 U.S. at 750 (Marshall, J.,
dissenting) (citation omitted). Thus, “[i]t is idle to speak of
assuming risks in contexts where, as a practical matter,
individuals have no realistic alternative.” Id.
Justice Marshall explained that, “[m]ore fundamentally,
to make risk analysis dispositive in assessing the reasonableness
of privacy expectations would allow the government to define the
scope of Fourth Amendment protections.” Id. Thus, “law
enforcement officials, simply by announcing their intent to
monitor the content of random samples of first-class mail or
private phone conversations, could put the public on notice of
the risks they would thereafter assume in such communications.”
Id.
Justice Marshall reasoned that “whether privacy
expectations are legitimate . . . depends not on the risks an
individual can be presumed to accept when imparting information
to third parties, but on the risks he should be forced to assume
in a free and open society.” Id. For “those extensive
intrusions that significantly jeopardize individuals’ sense of
security, more than self-restraint by law enforcement officials
is required.” Id. at 751 (internal quotations marks, brackets,
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and punctuation omitted). In light of the “vital role telephonic
communication plays in our personal and professional
relationships,” and “the First and Fourth Amendment interests
implicated by unfettered official surveillance,” Justice Marshall
concluded that “[t]he use of pen registers . . . constitutes such
an extensive intrusion.” Id. Accordingly, Justice Marshall
“would required law enforcement officials to obtain a warrant
before they enlist telephone companies to secure information
otherwise beyond the government’s reach.” Id. at 752.
In State v. Rothman, 70 Haw. 546, 779 P.2d 1 (1989),
this court declined to adopt the Supreme Court’s holding in
Smith. Rothman held that under article 1, section 6 of the
Hawai#i Constitution,23 “persons using telephones in the State of
Hawai#i have a reasonable expectation of privacy, with respect to
the telephone numbers they call on their private lines[.]” 70
Haw. at 556, 779 P.2d at 7. However, in Klattenhoff, decided in
1990, this court adopted Miller. Klattenhoff, 71 Haw. at 606,
801 P.2d at 548. This court stated that defendants had no
reasonable expectation of privacy in bank records, inasmuch as
“[t]he records are owned by the banks because they are business
23
Article 1, section 6 of the Hawai#i Constitution provides as
follows:
The right of the people to privacy is recognized and shall
not be infringed without the showing of a compelling state
interest. The legislature shall take affirmative steps to
implement this right.
(Emphasis added.)
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records, they are not the private papers of the account holder.”
Id. “These records contain information voluntarily conveyed to
the banks and exposed to their employees in the ordinary course
of business.” Id. “Furthermore, ‘[t]he depositor takes the
risk, in revealing his affairs to another, that the information
will be conveyed to the government.’” Id. (quoting Miller, 425
U.S. at 443). Therefore, this court held that “there is no
reasonable expectation of privacy in bank records.” Id.
B.
More recently, it has been explained that the approach
used in Miller and Smith, and previously adopted by this court in
Klattenhoff, “is ill suited to the digital age, in which people
reveal a great deal of information about themselves to third
parties in the course of carrying out mundane tasks.” United
States v. Jones, 132 S. Ct. 945, 957 (Sotomayor, J., concurring).
As declared by Justice Sotomayor, “[p]eople disclose the phone
numbers that they dial or text to their cellular providers; the
URLs that they visit and the e-mail addresses with which they
correspond to their Internet service providers; and the books,
groceries, and medications they purchase to online retailers.”
Id.
In Jones, the use of a GPS attached to the underside of
a vehicle to gather 2000 pages of information about the
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defendant24 led Justice Sotomayor to suggest that “some unique
aspects of GPS surveillance . . . will require particular
attention” inasmuch as “GPS monitoring generates a precise,
comprehensive record of a person’s public movements that reflects
a wealth of detail about her familial, political, professional,
religious, and sexual associations.” Id. at 955. Moreover,
“because GPS monitoring is cheap in comparison to conventional
surveillance techniques, and by design, proceeds surreptitiously,
it evades the ordinary checks that constrain law enforcement
practices: limited police resources and community hostility.”
Id. (internal quotation marks omitted). In light of the immense
amount of information that could be unprotected under the
approach of Miller and Smith, Justice Sotomayor concluded that
“it may be necessary to reconsider the premise that an individual
has no reasonable expectation of privacy in information
voluntarily disclosed to third parties.” Id.
III.
In assessing U.S. Supreme Court opinions construing the
federal constitution, Justice Brennan suggested that “the
decisions of the Court are not, and should not be, dispositive of
questions regarding rights guaranteed by counterpart provisions
24
The police obtained a warrant commanding them to install the GPS
locator within ten days and in the District of Columbia. Jones, 132 S. Ct. at
947 (majority opinion). However, the police installed the GPS locator on the
eleventh day, in Maryland. Id. Thus, the Government conceded that the
warrant did not extend to the installation of the GPS locator. Id. at 947
n.1.
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of state law.” William J. Brennan, State Constitutions and the
Protection of Individual Rights, 90 Harv. L. Rev. 489, 502
(1977). Rather, “such decisions are not mechanically applicable
to state law issues, and state court judges and the members of
the bar seriously err if they so treat them.” Id. In that
regard, he advised that “although in the past it might have been
safe for counsel to raise only federal constitutional issues in
state courts, plainly it would be most unwise these days not also
to raise the state constitutional questions.” Id. Justice
Brennan explained that “state court judges, and also
practitioners, do well to scrutinize constitutional decisions by
federal courts, for only if they are found to be logically
persuasive and well-reasoned, paying due regard to precedent and
the policies underlying specific constitutional guarantees, may
they properly claim persuasive weight as guideposts when
interpreting counterpart state guarantees.” Id.
The hazard in applying Miller, Smith, and Klattenhoff
in the modern age is the fundamental incompatibility of those
cases with the basic precepts of our jurisprudence. It is beyond
question that “in the absence of a warrant or exigent
circumstances, it is unreasonable for the government to search an
area where a person has an expectation of privacy.” State v.
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Cuntapay, 104 Hawai#i 109, 117, 85 P.3d 634, 642 (2004). In
determining “when a person’s expectation of privacy may be deemed
reasonable,” this court considers, first, if a defendant
“exhibit[ed] an actual, subjective expectation of privacy” in the
area searched, and second if “that expectation [is] one that
society would recognize as objectively reasonable.”25 State v.
Bonnell, 75 Haw. 124, 139, 856 P.2d 1265, 1273 (1993).
The rule that an individual has no legitimate
expectation of privacy in any information shared with a third
party cannot be justified in all situations. As explained by
Justice Marshall in Smith, “[p]rivacy is not a discrete
commodity, possessed absolutely or not at all. Those who
disclose certain facts to a bank or phone company for a limited
business purpose need not assume that this information will be
released to other persons for other purposes.” Smith, 442 U.S.
at 749 (Marshall, J., dissenting) (emphasis added) (citations
omitted). Hence, Justice Sotomayor stated that it cannot be said
that “all information voluntarily disclosed to some member of the
public for a limited purpose is, for that reason alone,
25
The exquisite and concise definition of privacy was set forth in
Katz v. United States, 389 U.S. 347 (1967), by Justice Harlan in concurrence:
“My understanding of the rule that has emerged from prior decisions is that
there is a twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation by one
that society is prepared to recognize as ‘reasonable[,]’” thus identifying a
subjective and an objective component of the privacy formulation. 389 U.S. at
361 (Harlan, J., concurring).
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disentitled to Fourth Amendment protection.” Jones, 132 S. Ct.
at 957 (Sotomayor, J., concurring).
For example, although individuals share the addresses
of each Web site they visit with their internet service provider,
it is unlikely that “people would accept without complaint the
warrantless disclosure to the Government a list [containing]
every Web site they had visited in the last week, month, or
year.” Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).
Thus, even when information is disclosed to a third party,
individuals may retain an expectation that such information will
not be disclosed to others for purposes other than that for which
the information had already been revealed.
Moreover, Miller, Smith, and Klattenhoff incorrectly
rely on the principle that individuals who convey information to
a third party have assumed the risk of that party disclosing the
information to the government. In our times individuals may have
no reasonable alternative, Smith, 442 U.S. at 750 (Marshall, J.,
dissenting), but to disclose confidential information to obtain a
necessary service. Jones, 132 S. Ct. at 957 (Sotomayor, J.,
concurring).
The decisions in Miller and Smith, and as adopted by
this court in Klattenhoff, are inconsistent with the recognition
that article 1, section 7 of the Hawai#i Constitution protects
all areas in which an individual possesses a legitimate
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expectation of privacy.26 Even when information is shared with a
third party, an individual may retain a legitimate expectation
that such information will not be further disseminated for
purposes other than those for which they were disclosed in the
first place. Jones, 132 S. Ct. at 957 (Sotomayor, J.,
concurring); Smith, 442 U.S. at 749 (Marshall, J., dissenting);
Miller, 425 U.S. at 449 (Brennan, J., dissenting). Thus, it
cannot be said that information disclosed to another person
automatically loses the protection it would otherwise receive
under the Hawai#i Constitution. Cf. Jones, 132 S. Ct. at 957
(Sotomayor, J., concurring). As Justice Brennan maintained,
“the very premise of the cases that foreclose federal remedies
constitutes a clear call to state courts to step into the breach.
. . . With federal scrutiny [of individual rights] diminished,
26
Relatedly, in State v. Detroy, 102 Hawai#i 13, 72 P.2d 485 (2003),
this court relied in part on the U.S. Supreme Court’s conclusion in Kyllo v.
United States, 533 U.S. 27 (2003), that thermal imagers were “not in general
public use,” 533 U.S. at 34, in concluding that the use of thermal imagery was
a search that required a warrant. Detroy, 102 Hawai#i at 21, 72 P.3d at 493.
Unlike the U.S. Supreme Court, this court noted that “the wide use of a device
such as a thermal imager” would not “be determinative of whether an
individual’s right to privacy is forfeited,” but that “it may be a factor.”
Id. at 22 n.11, 72 P.3d at 494 n.11. However, individuals may retain a
reasonable expectation that some searches will not be reasonable even if a
technological device is in general public use. Thus, this court’s reliance on
the fact that thermal imagers were not widely available in Detroy would
warrant reconsideration.
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state courts must respond by increasing their own.”27 Brennan,
State Constitutions, 90 Harv. L. Rev. at 503.
Respectfully, based on the forgoing, the ICA erred in
concluding that Walton lost all constitutional protection in his
name simply because that information had been previously
disclosed to a third party. Walton, 2013 WL 2190159, at *5.
Rather, under article 1, section 7 of the Hawai#i Constitution,
it must be determined whether Walton held a legitimate
expectation that such information would not be shared with
others. Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring);
Smith, 442 U.S. at 749 (Marshall, J., dissenting); Miller, 425
U.S. at 449 (Brennan, J., dissenting). In making such a
determination, this court should decide whether the individual
considered such information to be private, see Miller, 425 U.S.
at 449 (Brennan, J., dissenting), whether that information
reveals “intimate details of a person’s life,” Smith, 442 U.S. at
748 (Stewart, J., dissenting), whether the individual released
27
Soon and inevitably to come are overflights by drones –- will they
be too numerous in number to sustain a claim of any expectation of privacy?
See Jonathan Olivito, Note, Beyond the Fourth Amendment: Limiting Drone
Surveillance Through the Constitutional Right to Informational Privacy, 74
Ohio St. L.J. 669, 687 (2013). Contained within a person’s luggage is not
only its contents but an expectation of privacy. Yet, it is permissible for
the police to legally ascertain the contents of a suitcase through a sniff by
trained dogs of the air around the suitcase, because there is said to be no
expectation of privacy in the air containing the odor of marijuana. United
States v. Place, 462 U.S.696, 707 (1983). However, the use of a thermal
imager in a marijuana-growing investigation to measure the heat emanating from
the walls of a house, presumably in the air that might surround a suitcase, is
said to violate one’s privacy. Kyllo, 533 U.S. at 37. But a swab of one’s
inner cheek to search for “DNA”, is permissible, even if not connected to any
crime because on balance the intrusion on a person is not discomforting and
identification of an arrestee is a government interest that weighs more
heavily, according to Maryland v. King, 133 S. Ct. 1 (2012).
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the information to a third party to obtain a necessary service,
Smith, 442 U.S. at 750 (Marshall, J., dissenting), whether there
was no realistic alternative but to disclose the information,
id., and the extent to which disclosing such information would
jeopardize an individual’s sense of security.28 Id. If such
information is protected by article 1, section 7 of the Hawai#i
Constitution, the State is not precluded from seeking to
introduce such evidence at trial. Rather, the police simply must
obtain a warrant before conducting such searches, thus subjecting
the issue to the scrutiny of a neutral disinterested magistrate
before a search is conducted. Cf. Katz, 389 U.S. at 357
(“Bypassing a neutral predetermination of the scope of a search
leaves individuals secure from Fourth Amendment violations only
in the discretion of the police.” (internal quotation marks and
citation omitted)).
IV.
28
This court, “[a]s the ultimate judicial tribunal with final,
unreviewable authority to interpret and enforce the Hawai#i Constitution, [is]
free to give broader protection than that given by the federal constitution.”
Detroy, 102 Hawai#i at 22, 72 P.3d at 494 (citations and internal quotation
marks omitted). I would therefore conclude on independent state
constitutional grounds, that information disclosed to third parties may be
entitled to protection under article 1, section 7 of the Hawai#i Constitution.
It must be noted that “state courts are absolutely free to
interpret state constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United States
Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995). “If a state court
chooses merely to rely on federal precedents as it would on the precedents of
all other jurisdictions, then it need only make clear by a plain statement in
its judgment or opinion that the federal cases are being used only for the
purpose of guidance, and do not themselves compel the result that the court
has reached.” Michigan v. Long, 463 U.S. 1032, 1041 (1983). In consonance
with Long, federal cases are cited in this opinion only for the purpose of
guidance. The Hawai#i Constitution, as opposed to federal law, compels the
result reached herein.
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Rapid changes in technology have altered our
lifestyles, creating a dissonance between a mechanical
application of the expectation of privacy test and its core
meaning. The last fifty years have witnessed a significant
period of change in the law pertaining to criminal procedure.
United States Supreme Court and Hawai#i Supreme Court decisions
have diverged29 in the area of constitutional protections against
unreasonable searches and seizures. But as noted, the U.S.
Supreme Court itself recognized, “state courts are absolutely
free to interpret state constitutional provisions to accord
greater protection to individual rights than do similar
provisions of the United States Constitution.” Evans, 514 U.S.
at 8.
29
The most significant difference between the Federal and Hawai#i
decisions, to this point at least, is the Supreme Court’s jettison of two of
the three purposes of the exclusionary rule – protection of privacy and
judicial integrity. The singular focus in United States v. Leon, 468 U.S.
928, 928-929 (1984), on deterring police misconduct, see id. at 910, upended
the tripartite formulation established in Mapp v. Ohio, 367 U.S. 643, 659-60
(1961). The result seemingly reads out of the Fourth Amendment the express
requirement of probable cause for the issuance of warrants. Under Leon,
insofar as a warrant seems valid on its face and the police thus, in “good
faith,” execute it -- the evidence obtained is admissible without regard to
whether the warrant is, as a matter of fact, supported by probable cause or
not. 468 U.S. at 926. On this development, Justice Brennan said, “in case
after case, I have witnessed the Court's gradual but determined strangulation
of the [exclusionary] rule.” Leon, 468 U.S. at 928-929 (Brennan, J.,
dissenting).
Under the Hawai#i Constitution it has been held that “the three
purposes underlying our exclusionary rule” are “judicial integrity, [the]
protection of individual privacy, and [the] deterrence of illegal police
misconduct.” State v. Torres, 125 Hawai#i 382, 394, 262 P.3d 1006, 1019
(2011); see also State v. Lopez, 78 Hawai#i 433, 446, 86 P.2d 889, 902 (1995).
See State v. Matsunaga, 82 Hawai#i 162, 168-69, 920 P.2d 376, 382-83 (App.
1996) (the good faith exception to the warrant requirement is rejected under
the Hawai#i Constitution); compare State v. McKnight, --- Hawai#i ---, --- P.3d
---, 2013 WL 680774 at *17 (Dec. 31, 2013) (holding that an error by the
issuing judge resulting in conflicting dates on the face of the warrant did
not render a search warrant invalid).
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The ascent of state supreme courts’ independence in
interpreting their own constitutions to afford more or broader
rights to individuals than the national minimum standard
established by the Supreme Court, so long as these decisions do
not violate the federal constitution or statutes, reflects a “New
Federalism.” Brennan, State Constitutions, 90 Harv. L. Rev. at
501. In this context, the co-existence of two constitutions –
the federal constitution and the state constitution – in one
jurisdiction can result in contrasting outcomes in federal and
state court, although arising out of the same or similar factual
scenarios, with the concomitant effect on the duties and
authority of law enforcement agencies affected by these
decisions. See Torres, 125 Hawai#i at 397, 262 P.3d at 1021.
The modification or reformulation of a privacy test is
possible, thus, at the state level. It would seem beyond purview
that a reasonable person would not expect that disclosure to
third parties would, ipso facto, permit government scrutiny or
intrusion into otherwise protected privacy zones without at least
some safeguards inhering in the checks among the separate
branches of government. An expectation of privacy, even though
extended to matters exposed to third persons, would be viewed as
reasonable by society, where such exposure is inevitable and
inescapable in the conduct of the necessary affairs of life. The
alternative is to countenance the inexorable diminishment of
personal privacy and the substantial risk of privacy zones
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disappearing altogether. Cf. Griswold v. Connecticut, 381 U.S.
479, 484 (1965) (holding that “specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees
that help give them life and substance,” and that “[v]arious
[constitutional] guarantees create zones of privacy,” such as the
Fourth Amendment’s “protection against all governmental invasions
of the sanctity of a man’s home and the privacies of life”
(internal quotation marks omitted)).
The contours of an expectation of privacy in the
context of disclosure to third persons would be shaped on a case-
by-case basis as guided by the core values of personal dignity
and security grounded in the privacy right. Considerations of
purpose, history, logic, and precedent -- accepted tools of
constitutional construction -- would be pertinent. As explained
by Justice Brandeis, “[i]t is one of the happy incidents of the
federal system that a single courageous state may, if its
citizens choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the country.”
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting).
V.
The majority’s belief that there is no expectation of
privacy in a name, under the facts, may be too broad a construct.
One’s identity is a gateway to information collected by third
persons -- some collection occurring even without a person’s
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knowledge; only context can determine whether the disclosure of
one's name would be the key that unlocks the door to a protected
zone of privacy. For example, in Hiibel v. Sixth Judicial Dist.
Court of Nevada, Humbolt County, 542 U.S. 177 (2004), Justice
Stevens rejected the Supreme Court’s conclusion that the Fifth
Amendment right against self incrimination did not extend to an
individual’s name.30 See 542 U.S. at 195 (Stevens, J.,
dissenting). Justice Stevens believed that it was “clear that
the disclosure of [the defendant’s] identity is protected” by the
Fifth Amendment because “[a] person’s identity obviously bears
informational and incriminating worth, ‘even if the name itself
is not inculpatory.’” Id. at 196 (internal brackets omitted)
(quoting United States v. Hubbell, 530 U.S. 27, 38 (2000)).
Additionally, “[a] name can provide the key to a broad array of
information about the person, particularly in the hands of a
police officer with access to a range of law enforcement
databases.” Id.
However, it is unnecessary to decide whether, under the
circumstances presented here, Walton possessed a legitimate
expectation of privacy in his name because the introduction of
30
In Hiibel, the defendant was arrested pursuant to a Nevada statute
requiring an individual detained by a police officer to identify himself or
herself to the officer. 542 U.S. at 181. The defendant argued, inter alia,
that the statute violated “the Fifth Amendment’s prohibition on compelled
self-incrimination.” Id. at 189.
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that evidence at trial was plainly harmless.31 In determining
whether an error is harmless, this court considers whether “there
is a reasonable possibility that error might have contributed to
conviction.” State v. Machado, 109 Hawai#i 445, 452-53, 127 P.3d
941, 948-49 (2006) (citations and internal quotation marks
omitted). In the instant case, the association of Walton’s name
with the GNC card served only to establish his presence at the
crime scene. However, that fact was also established by a wealth
of other evidence presented at trial.32 Thus, the introduction
of the information obtained from the inquiry to GNC regarding the
ownership of the GNC card was harmless.
31
Additionally, by leaving the backpack and the GNC card at the
scene Walton may have abandoned the card and thus relinquished any expectation
of privacy he had in the card. Cf. State v. Kolia, 116 Hawai#i 29, 35-36, 169
P.3d 981, 987-88 (App. 2007) (holding that a defendant abandoned a fanny pack
by throwing it away while fleeing from police).
32
A surveillance camera captured an image of Walton entering the
taxi where the stabbing occurred, and the taxi driver identified that image as
being one of the perpetrators. Subsequently, in response to a “Crime
Stoppers” tip, two of Walton’s co-workers identified him as the individual in
the picture. Most significantly, Walton’s co-defendant Elkshoulder, also
admitted that Walton was present at the scene of the crime. None of this
evidence was related to the inquiry to GNC, inasmuch as the Crime Stoppers tip
was circulated independently and Elkshoulder turned himself in.
In light of the evidence connecting Walton to the crime scene, it
cannot be said that there is a reasonable possibility that the introduction of
the name connected to the GNC card contributed to Walton’s conviction.
Machado, 109 Hawai#i at 452-53, 127 P.3d at 948-49; see also Territory v.
Chang Tai Kun, 26 Haw. 133, 136 (Terr. 1921) (“[T]he only effect detrimental
to the defendant which this evidence could have had would be to show that
there had been gambling carried on at the premises in question and [] this
fact is so thoroughly proven by other evidence in the case that it could not
have affected the verdict and was therefore not prejudicial to the rights of
the defendant.” (emphasis added)).
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VI.
Based on the foregoing, the court’s September 7, 2011
order denying Walton’s motion to suppress his name as obtained
through the use of the GNC card is affirmed, but for the reasons
set forth herein.
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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State v. Walton.
Court: Hawaii Supreme Court
Date filed: 2014-02-14
Citations: 133 Haw. 66, 324 P.3d 876, 2014 WL 594105, 2014 Haw. LEXIS 79
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