State v. Alkire

468 P.3d 87

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.Lisa E. ALKIRE, Petitioner/Defendant-Appellant.

SCWC-17-0000638

Supreme Court of Hawai‘i.

JUNE 25, 2020

I. Introduction

This certiorari proceeding arises out of Lisa E. Alkire's ("Alkire") conviction for the offense of operating a vehicle under the influence of an intoxicant ("OVUII") in violation of Hawai‘i Revised Statutes ("HRS") § 291E-61(a)(1) (Supp. 2014) on Likelike Highway in the early morning hours of October 15, 2016.

Alkire raises four questions in her application for writ of certiorari, which challenges the Intermediate Court of Appeals’ ("ICA") January 24, 2019 summary disposition order ("SDO"). The ICA's SDO affirmed the District Court of the First Circuit's ("district court") August 30, 2017 judgment.¹

The four questions raised on certiorari are:

I. As a matter of first impression, did the ICA gravely err in finding that the Tachibana admonishment was sufficient where Petitioner was not informed of her right to testify in her consolidated suppression hearing without that testimony being used to determine guilt or innocence and/or where the court specifically declined to inform Petitioner of her right to remain silent?

II. As a matter of first impression, did the ICA gravely err in rejecting Petitioner's HRPP, Rule 48 and/or constitutional speedy trial challenges, where the trial "commenced" with one state witness but was subsequently continued for eight months at no fault of Petitioner?

III. Did the ICA gravely err in holding that HRPP Rule 16 usurps United States Supreme Court precedent that requires individual prosecutors to obtain and disclose impeachment materials rather than merely relying on representations of the police to determine whether and what materials should be disclosed to Defendants?

IV. Did the ICA gravely err in finding that discovery, requested for its potential exculpatory value, was not material because the evidence of guilt was "overwhelming" and/or in affirming the conviction where Ms. Alkire was deprived of an opportunity to establish an appropriate record as to the existence of the video?

The first question on certiorari was resolved through our opinion in State v. Chang, 144 Hawai‘i 535, 445 P.3d 116 (2019).²

With respect to the second question on certiorari, we adopt the California Supreme Court's reasoning in Rhinehart v. Municipal Court, 35 Cal.3d 772, 200 Cal.Rptr. 916, 677 P.2d 1206, 1211-12 (1984), and hold that, in order to effectuate its intent, Hawai‘i Rules of Penal Procedure ("HRPP") Rule 48 (2000) requires a "meaningful" commencement of trial. A trial is "meaningfully" commenced when a trial court reasonably commits its resources to the trial. As this is a "new rule," it will only apply prospectively to events occurring after publication of this decision, i.e., to trials that commence after the date of this opinion.³

With respect to the third question on certiorari, we hold that, under the circumstances of this case, the prosecutor was not required to personally review files of the testifying police officers.

As to the fourth question on certiorari, we hold that because the video recording showing Alkire at the police station after her arrest was material to Alkire's defense and her request was reasonable, the district court abused its discretion in denying her motion to compel. We set out additional parameters the district court must consider. Although the district court may not reach this issue, we also hold that the permissive adverse inference rule, which allows a trier of fact to draw an adverse inference that lost or destroyed evidence was unfavorable to the spoliator, also applies in criminal cases.

Accordingly, we vacate the ICA's February 25, 2019 judgment on appeal, which affirmed the district court's August 30, 2017 judgment, and we remand the case to the district court for further proceedings consistent with this opinion.

II. Background

A. Arrest, request to preserve evidence, and charge

In the early morning of October 15, 2016, Alkire was stopped while driving northbound on Likelike Highway after a Honolulu Police Department ("HPD") officer ("patrol officer") observed her swerve from the traffic lane into the shoulder lane three times. Alkire was later placed under arrest for OVUII and transported to the police station.

On October 20, 2016, Alkire's counsel faxed a five-page, single-spaced letter ("request to preserve") to the HPD Central Receiving Division ("Central Receiving"). In the letter, Alkire's counsel specifically requested that the following information be preserved:

[A]ny and all video or audio recordings that may contain evidence of this case ... (or records of such footage) from any video, audio or traffic cameras maintained, operated, controlled, leased, or accessible by the ... Honolulu Police Department, ... Department of the Prosecuting Attorney and/or any other government entity or sub-department, semi-autonomous or any other department, that may pertain to this incident .... This request also specifically includes, but is not limited to, any and all recordings, captured in whatever manner, of this Defendant by police department employees or contractors whether at the police station, from any in-car recording devices, and/or video or audio recording devices.

The request listed Alkire's identifying information, the date of arrest, citation number, and state ID booking number. Alkire's counsel also emailed the request to preserve to the Department of the Prosecuting Attorney for the City and County of Honolulu ("prosecutor's office"). The following day, Alkire's counsel faxed to Central Receiving an addendum to the October 20, 2016 request to preserve, which specifically requested that the video from the Kalihi Police Station be preserved. Alkire's counsel also emailed the addendum to the prosecutor's office and mailed physical copies of both the request to preserve and the addendum to HPD Headquarters ("Headquarters"), Central Receiving, and the prosecutor's office.

On November 1, 2016, the State filed a complaint charging Alkire with one count of OVUII in violation of HRS § 291E-61(a)(1) and/or (a)(3).⁴

B. District court proceedings relevant to issues on certiorari

1. Motion to compel officer files

On December 5, 2016, Alkire filed a motion to compel files of the police officers the State intended to call as witnesses ("motion to compel officer files"). Alkire requested that (1) the State produce the personnel files of the officers involved in Alkire's case (and any other documentation regarding the officers’ misconduct); and (2) that the prosecutor "be required to review the files of its witnesses to determine whether impeachment materials exist and not shift that burden to police or non-lawyer bureaucrats," as purportedly required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (suppression of evidence favorable to the accused violates due process where the evidence is material to guilt or punishment, regardless of the good faith or bad faith of the prosecution), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (a prosecutor's failure to disclose evidence favorable to the accused constitutes reversible error when the suppressed evidence might have affected the outcome of the trial).

2. Motion to compel video recording

On January 6, 2017, Alkire filed a motion to compel production of the video recording showing her at the police station after her arrest ("motion to compel video recording"). Alkire indicated she had been under surveillance at the Kalihi Police Station after her arrest, and that she had sent the request to preserve a few days after her arrest and "well within the time that the video footage was maintained" to the HPD and to the prosecutor's office.

Alkire attached to her motion the request to preserve and the addendum, which had been sent to Headquarters, Central Receiving, and the prosecutor's office. Alkire also attached a transcript of statements by HPD Police Sergeant Barry Tong ("Sgt. Tong") at one of defense counsel's previous hearings involving another OVUII defendant. Sgt. Tong, who worked at Central Receiving, had explained HPD practice for retaining video surveillance footage:

SGT. TONG: In response to [defense counsel's] request for video surveillance from our detention facility on the date that [redacted] was arrested, unless we actually had a subpoena of some sort within 20 to 25 days –- that is usually when the –- the video recording is written over.

THE COURT: Okay.

SGT. TONG: So it's not destroyed; it's just written over.

THE COURT: Okay. So I think what you're saying –- tell me if I'm correct.

You're saying that the normal course of events is after 20 to 25 days existing material is re –- is recorded over?

SGT. TONG: Correct. With our current system, yes, sir.

Additionally, Sgt. Tong had testified that future requests to preserve evidence should be sent to the Central Receiving and that either he or one of his officers "will go through its proper channels ... to preserve the information."

In addition, Alkire attached (1) a copy of the HPD policy requiring video monitoring of all detainees in holding cells and (2) a letter from Sgt. Tong regarding a discovery request for another case, stating that (a) video recordings from the District 5 Kalihi Police Station "exist[s] for a period of 30 days after the day and time it was recorded;" and (b) "cameras at the District 5 Kalihi Police Station are positioned to get maximum viewing angle of the exterior of the police station and all access points to the station[ ]" and also provide "surveillance viewing of the adult and juvenile processing and cellblock areas."

Alkire also represented that, as of January 6, 2017, the State had not responded to her request, and that the video recording had not been provided in the State's January 5, 2017 disclosure. Alkire argued that her constitutional rights entitled her to access this video footage. Alkire argued that this...