Boyd v. State

444 P.3d 321 (Table)

Lee Ki BOYD, Petitioner-Appellant,

v.STATE of Hawai‘i, Respondent-Appellee

NO. CAAP-18-0000056

Intermediate Court of Appeals of Hawai‘i.

July 15, 2019

On the briefs:

Jonathan Burge, for Petitioner-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City & County of Honolulu, for Respondent-Appellee.

(By: Fujise, Presiding Judge, and Leonard and Reifurth, JJ.)

SUMMARY DISPOSITION ORDER

Petitioner-Appellant Lee Ki Boyd appeals from the January 3, 2018 Findings of Fact, Conclusions of Law, and Order Denying Rule 40 Petition for Post Conviction Relief ("Order") entered by the District Court of the First Circuit ("District Court").¹ The Order denied Boyd's Hawai‘i Rules of Penal Procedure ("HRPP") Rule 40 Petition for Post Conviction Relief ("Petition"), in which Boyd challenged his conviction for Operating a Vehicle Under the Influence of an Intoxicant ("OVUII"),² in violation of Hawaii Revised Statutes ("HRS") 291E-61(a)(1) (Supp. 2014),³ and sought to have the case dismissed or set for a new trial.

On May 29 and June 23, 2015, the trial court conducted a bench trial in the underlying case, in which Honolulu Police Department Officer James Yee testified with regard to Boyd's performance on the horizontal gaze nystagmus test, the "walk-and-turn" test, and the "one-leg stand" test.⁴ The trial court found Boyd guilty as charged, and convicted him of OVUII.

On July 16, 2015, Boyd filed a notice of appeal to this court. In State v. Boyd, No. CAAP-15-0000528,⁵ 2016 WL 3369242 (Haw. Ct. App. June 15, 2016), this court vacated Boyd's conviction for OVUII under HRS section 291E-61(a)(3), and affirmed Boyd's conviction under HRS section 291E-61(a)(1). We held that Officer Yee's testimony represented substantial evidence to establish that Boyd "operated or assumed actual physical control of a vehicle while under the influence of alcohol in an amount sufficient to impair a person's normal mental faculties or ability to care for the person and guard against casualty in violation of HRS § 291E61(a)(1)."

Boyd filed an Application for Writ of Certiorari, which the Hawai‘i Supreme Court rejected on September 19, 2016.⁶ See State v. Boyd, No. SCWC-15-0000528, 2016 WL 4990250 (Haw. Sept. 19, 2016).

On June 19, 2017, Boyd filed his Petition with the District Court. Boyd alleged in relevant part that, prior to his trial, Officer Yee was "prosecuted by the Honolulu Prosecuting Attorney for Shoplifting"; that the State failed to disclose Officer Yee's prosecution in violation of Boyd's rights under Brady v. Maryland, 373 U.S. 83 (1963), "as this information would have been favorable to [Boyd], giving [him] the opportunity to cross examine [Officer] Yee on the favorable materials pursuant to Hawaii Rules of Evidence Rule 608(b) [regarding specific instances of conduct going to witness credibility] and other statutory provisions"; and that, therefore, Boyd's state and federal due process rights were violated, and his conviction should be reversed, and the case dismissed and/or set for a new trial.

On July 12, 2017, the State filed its answer to Boyd's Petition. The State denied Boyd's allegation in the Petition that prior to trial in the underlying case, "[Officer] Yee was prosecuted by the Honolulu Prosecuting Attorney for Shoplifting,"⁷ but acknowledged that

According to records in JIMS, James Yee was charged with one count of Theft in the Fourth Degree under Case No. 1P21000004 63 with HPD Report No. 10437532 in the District court of [ ] the First Circuit, Wahiawa Division.

a. A&P was January 4, 2011

b. On May 19, 2011 James Yee was represented by Guy Matsunaga and entered a plea of no contest. He was granted a deferred acceptance of no contest plea of six months.

c. On October 11, 2011, his case was dismissed[.]

On August 28, 2017, the District Court granted Boyd a continuance of the hearing on the Petition to subpoena both the criminal and administrative investigations by HPD against Officer Yee. A Stipulated Protective Order was filed on September 12, 2017 along with a Filing of Police Documents Under Seal with the subpoenaed documents. The documents provided, in relevant part, that on May 19, 2011, Officer Yee received a twenty-day suspension for "Theft (Felony)" and a three-day suspension for "Commission of a Criminal Act (Other) - Conviction for Theft," that the incident took place on December 7, 2010, and that the incident involved Officer Yee walking into a supermarket, concealing poi, honey, and meat in his pants, and exiting the store without paying for the concealed items.

On November 6, 2017, the continued-hearing on the Petition took place. On January 3, 2018, the District Court entered the Order denying the Petition. In the Order, the District Court made the following conclusion of law, which Boyd now challenges: "5. The Court finds that [Boyd] failed to show that the shoplifting offense by Officer Yee carries probative value on the issue of the truth and veracity of [Officer] Yee as a witness against [Boyd] in [Boyd's] OVUII trial."

On appeal, Boyd asserts that: (1) The State's wilful withholding of the information surrounding Officer Yee's shoplifting prosecution constituted a Brady violation; and (2) had the State disclosed Officer Yee's prosecution, the discovery that records had been purged would have led to the exclusion of Officer Yee as a witness.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments they advance and the issues they raise, as well as the relevant statutory and case law, we affirm.

(1) Boyd argues that the State's wilful withholding of the information surrounding Officer Yee's shoplifting prosecution constituted a Brady violation because, had it been brought to Boyd's attention prior to trial, he could have used such information to impeach Officer Yee.

In extending Brady to impeachment evidence, the Hawai‘i Supreme Court has articulated that "[t]he duty to disclose evidence that is favorable to the accused includes evidence that may be used to impeach the government's witnesses by showing bias, self-interest, or other factors that might undermine the reliability of the witness's testimony." Birano v. State, 143 Hawai‘i 163, 182, 426 P.3d 387, 406 (2018) (citing Giglio v. United States, 405 U.S. 150, 154 (1972) ). "The duty to disclose material impeachment evidence is compelled not only by due process, but also the constitutional right to confrontation." Birano, 143 Hawai‘i at 183, 426 P.3d at 407.

"Violation of the constitutional right to confront adverse witnesses is subject to the harmless beyond a reasonable doubt standard." Additionally, the failure of the prosecution to disclose impeachment evidence warrants a new trial if the evidence is "material ." When the "reliability of a given witness may well be determinative of guilt or innocence," the nondisclosure of evidence affecting that witness's credibility is material. Put another way, evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Thus, the nondisclosure of impeachment evidence bearing on [a witness'] credibility warrants granting [a defendant] a new trial if [the witness'] testimony was material in the obtainment of [the defendant's] convictions.

Birano, 143 Hawai‘i at 190-91, 426 P.3d at 414-15 (emphasis added) (citations omitted).

Relying on State v. Pacheco, 96 Hawai‘i 83, 26 P.3d 572 (2001), the District Court concluded that because of the nature of Officer Yee's offense, there was no reasonable probability that, had the information been disclosed, the result of the proceeding could have been any different:

CONCLUSIONS OF LAW

1. [Boyd] comes before this court seeking relief pursuant to HRPP Rule 40, essentially alleging that the State failed to notify counsel of the prosecution of [Officer] Yee and as such violated Brady, and in turn violated his State and Federal Rights to Due Process.

2. Specifically, [Boyd] claims that had the State provided information regarding Officer Yee's prosecution of shoplifting, he would have used that information to impeach Officer Yee, State's witness in his OVUII trial, relating to truthfulness or credibility.

3. A petty theft conviction is not, per se, a "crime of dishonesty," such that it is admissible for impeachment purposes.State v. Pacheco, 96 Hawaii 83, 98, 26 P.3d 572, 587 (2001).

....

5. The Court finds that [Boyd] failed to show that the shoplifting offense by Officer Yee carries probative value on the issue of the truth and veracity of [Officer] Yee as a witness against [Boyd] in [Boyd's] OVUII trial.

(Emphasis added.)

In Pacheco, the Hawai‘i Supreme Court held that the trial court erred in allowing the prosecution to introduce the defendant's prior theft conviction for impeachment purposes under Hawaii Rules of Evidence ("HRE") Rule 609(a).⁸ 96 Hawai‘i at 99, 26 P.3d at 588. The court noted that "[i]n every instance where a witness is sought to be impeached, the only issue that arises is whether the witness is telling the truth," and that as a preliminary matter, "if a party proffers evidence of a prior conviction to impeach the credibility of a witness, the trial court must first expressly determine whether the proffering party has ‘shown that the conviction ... rationally carries probative value on the issue of the truth and veracity of the witness .’ " Id. (emphasis added) (ellipses in original) (quoting Asato v. Furtado, 52 Haw. 284, 292, 293, 474 P.2d 288, 294, 295 (1970) ). The supreme court held that "a theft offense is not, per se, a ‘crime of dishonesty’ such that it is admissible to impeach a criminal defendant's credibility. Rather, to be admissible impeachment evidence pursuant to HRE Rule 609(a), the defendant must have committed the prior theft offense under circumstances that, by their very nature, render his or her prior conviction of the offense relevant to and probative of...