State v. Luke

464 P.3d 914

STATE of Hawai‘i, Plaintiff-Appellant,

v.Alik LUKE, Defendant-Appellee

NO. CAAP-15-0000950

Intermediate Court of Appeals of Hawai‘i.

April 17, 2020

On the briefs:

James M. Anderson, Deputy Prosecuting Attorney, Honolulu, for Plaintiff-Appellant.

Phyllis J. Hironaka, Deputy Public Defender, for Defendant-Appellee.

GINOZA, CHIEF JUDGE, FUJISE AND CHAN, JJ.

OPINION OF THE COURT BY GINOZA, CHIEF JUDGE

This appeal arises from a jury trial in the Circuit Court of the First Circuit (Circuit Court )¹ in which Plaintiff-Appellant State of Hawai‘i (State ) alleged that Defendant-Appellee Alik Luke (Luke ) committed, inter alia ,² the following offenses: Count I, Attempted Burglary in the First Degree in violation of Hawaii Revised Statutes (HRS ) §§ 705-500 (2014)³ and 708-810(1)(c) (2014) ;⁴ Count II, Burglary in the First Degree in violation of HRS § 708-810(1) (c) ; and Count III, Unauthorized Possession of Confidential Personal Information in violation of HRS § 708-839.55 (2014).⁵

A jury trial ultimately concluded with the Circuit Court declaring a mistrial due to comments by the prosecutor in rebuttal closing argument identifying Luke as the source for information about a "cousin Jeff", which violated the Circuit Court's prior evidentiary ruling that Luke's statements were inadmissible.

Given the mistrial, Luke filed "Defendant's Motion to Dismiss with Prejudice" (Motion to Dismiss ) seeking dismissal of Counts I through III with prejudice. The Circuit Court granted dismissal with prejudice after considering the factors discussed in State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982) and entered its "Findings of Fact, Conclusions of Law, and Order Granting Defendant's Motion to Dismiss with Prejudice" (Dismissal Order ). An important part of the Circuit Court's Moriwake analysis was that the State had failed to present sufficient foundation to admit surveillance videos from the residence where Luke allegedly committed the burglary offense.

On appeal, the State contends that the Circuit Court erred in dismissing the case with prejudice. The State asserts that in dismissing with prejudice, the Circuit Court's Findings of Fact (FOF ) 8, 11, and 13 were clearly erroneous; and the Circuit Court's Conclusions of Law (COL ) 5, 7, 8, 9, 10, 12 and its evaluation of the factors set forth in Moriwake were wrong.

We conclude the Circuit Court erred in its analysis in precluding surveillance videos taken at the residence Luke is alleged to have burglarized. In turn, because the Circuit Court relied heavily on the State's failure to obtain admission of those surveillance videos in ruling under Moriwake to dismiss this case with prejudice, we conclude that the Circuit Court abused its discretion in dismissing this case with prejudice.

We thus vacate the Dismissal Order and remand the case for further proceedings.

I. Background

The State's charges against Luke are based on an investigation conducted by the Honolulu Police Department (HPD ) of an alleged attempted burglary of the residence of Cindy and Derek Yamamoto (the Yamamotos ), and an alleged burglary of the residence of Lori Kohara (Kohara ) and Kyle Shimoda (Shimoda ), which led to Luke's arrest. When arrested, Luke was allegedly in possession of items that implicated his involvement in the alleged burglary of the Kohara/Shimoda residence, including a suitcase belonging to Kohara and Shimoda that was taken from their residence containing various personal effects and Shimoda's credit cards, a purple backpack containing more items belonging to Kohara and Shimoda, and a jacket holding certain items identified as Kohara and Shimoda's property.

A. Jury Trial

At trial, the State attempted to proffer evidence against Luke, including: (1) evidence of statements made by Luke to an HPD officer at the time he was detained; (2) video evidence recorded by the Yamamotos' security system which allegedly recorded Luke in the backyard of the Yamamoto residence during the alleged attempted burglary (Yamamoto Video ); (3) video evidence recorded by the security system at Kohara and Shimoda's residence showing a person entering their property and leaving with a suitcase (Shimoda Videos ); and (4) evidence of Luke's possession of various items at the time of his arrest.

1. Luke's Statements About Cousin Jeff

Prior to jury selection, the Circuit Court heard Luke's motion in limine, including Luke's Evidentiary Request No. 6 (Request no. 6 ), "Exclusion of Involuntary Confessions". In Request no. 6, Luke sought an order excluding from evidence any statements that he allegedly made when he was detained by an HPD officer on the day of the alleged offenses.

At the hearing on Luke's motion in limine, the State asserted that Luke's statements in question were spontaneous utterances made to HPD Corporal Edlin Kam (Officer Kam ). The State represented that such utterances included statements such as "oh, I don't know who this suitcase that I'm holding belongs to", "I just saw the battery in the guy's yard", "I was looking at the battery", and "you're stopping me because he saw me." The State also acknowledged Luke's assertion that Luke had also "said something about cousin Jeff at a storage locker[.]" The Circuit Court took Request no. 6 under advisement subject to a hearing on the voluntariness of these statements.

The Circuit Court later conducted a voluntariness hearing on whether Luke's alleged statements to Officer Kam would be admissible. At the hearing, Officer Kam testified that on April 13, 2015, at approximately 11:30 AM, he responded to a burglary case reported in the Kapahulu area. Officer Kam was apprised by the initial responding officer of the details of the alleged attempted burglary, and was given a description of the suspect. Officer Kam then testified that he patrolled the nearby area in search of an individual that matched the description given to him.

Officer Kam testified that during this search he observed a male in the nearby area who matched the physical description of the suspect. Officer Kam observed the individual trying to cross the street towards a public storage facility. Officer Kam testified that he proceeded to stop the individual and asked him for his name and identification. The individual provided Officer Kam with his name but was not able to produce any form of identification.

Officer Kam then testified that the individual spontaneously uttered: "I didn't take anything", "[I] was looking at this car battery that was there". Officer Kam asked Luke where he was going, to which Luke responded he was "going to meet his cousin at the Public Storage". Officer Kam then indicated that before he could ask Luke about the bags in his possession, Luke uttered "this is not my bag, this is not my luggage." Officer Kam then identified Luke in court as the individual he had stopped that day and who had made such utterances.

On cross-examination in the voluntariness hearing, Officer Kam testified that he was in an HPD vehicle and was wearing an HPD uniform at the time he stopped Luke. Officer Kam further testified that before Luke made any statements, Officer Kam had verbally related to Luke that he was being stopped because he was a suspect in a burglary case. Officer Kam also acknowledged that at some point during the stop he asked Luke where he was going. Officer Kam indicated that at the time he stopped Luke, he believed that he had enough information to hold Luke until a witness could potentially identify Luke, and at that point of his investigation he was not going to let Luke leave the area.

Based on Officer Kam's testimony in the voluntariness hearing, the Circuit Court granted Luke's Request no. 6 and precluded the State from introducing into evidence Luke's alleged statements.

Although the State was precluded from introducing Luke's alleged statements to Officer Kam, the possible existence of a "cousin Jeff" was later introduced at trial by Luke's defense counsel in his cross-examination of HPD Detective Jon Yoshida (Detective Yoshida ), the lead investigator for the case, and Officer Kam. During cross-examination, Detective Yoshida was questioned extensively on whether any follow-up investigation had been conducted at the public storage facility for a cousin Jeff. Detective Yoshida testified that the possible existence of a cousin Jeff was not brought to his attention. Detective Yoshida thus indicated that no follow-up investigation was ordered and no HPD officers were sent to the public storage facility to collect any evidence, including evidence relating to the existence of a cousin Jeff. Officer Kam also testified under cross-examination that he did not conduct any further investigation at the public storage facility and did not search for a cousin Jeff as part of his investigation. In the cross-examination of both Detective Yoshida and Officer Kam, Luke's counsel specifically instructed both witnesses to address his questions relating to cousin Jeff without speaking to the source of that information, i.e. Luke's statements to Officer Kam.

2. Evidence of attempted burglary at Yamamoto residence

During trial, the State presented testimony by Derek Yamamoto (Yamamoto ), an occupant of the residence that Luke had allegedly attempted to burglarize and who had reported the incident to HPD. Yamamoto testified that he was inside his residence and was on a conference call at the time of the incident. In response to receiving an e-mail, Yamamoto testified that he walked to his kitchen and looked into his backyard through the jalousie windows in his back exterior door. Yamamoto testified that he saw a silhouette of a person through the window, which prompted him to yell out to the person "something like[,] what are you doing?" Yamamoto testified that the individual was startled, and said "something like[,] oh", and then left the premises.

After observing the unidentified person in his backyard, Yamamoto called 911 and reported that someone had tried to break into his residence....