State v. TetuState v. Tetu
- Reporters:
- , ,
- Before:
- Pollack, McKenna, Wilson, Recktenwald, Nakayama
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OPINION OF THE COURT BY POLLACK, J.
This case presents the question of whether a defendant charged with committing a criminal offense on private property has a right to visit the crime scene. We hold that the constitutional provisions providing for effective assistance of counsel and a fair trial afford a defendant, subject to appropriate restrictions, with the right to access the scene of the alleged offense.
I. BACKGROUND
A. Circuit Court Proceedings
On March 25, 2010, at about 2:00 a.m., a surveillance camera filmed Robert Tetu, who was wearing a backpack, entering the uninhabited basement area of Maunaihi Terrace, a private condominium building in Honolulu. The video footage recorded Tetu entering into two locked utility closets with an unknown tool and wiping the door knobs afterwards with his jacket.1 Tetu is then seen leaving the closet with a backpack-type bag in one hand, a black plastic garbage bag in the other hand, and a “mini mag light type flash light” in his mouth. The next day, after reviewing the video footage, the condominium manager inspected the storage closets and noticed that an electric grinder and several emergency lights and batteries were missing.
On May 24, 2010, Tetu was charged with burglary in the second degree in violation of Hawaii Revised Statutes (HRS) § 708-811 (1993).2 As part of discovery, the defense received the police reports, which included copies of the surveillance footage, eight photographs, and two diagrams of the basement where the utility closets were located. The photographs showed the fire-exit door through which Tetu entered, the short hallway where the surveillance camera was located, the exterior doors to the utility closets, and a few items on the shelves inside one of the storage closets. Tetu‘s counsel went to Maunaihi Terrace on November 18, 2010 in order to inspect the premises, but he was denied access and told to “coordinate an inspection through the resident manager.” Thereafter, defense counsel sent an email to the condominium manager to arrange a visit. The email, which was copied to the prosecutor, informed the manager that the prosecutor was also interested in visiting the condominium. In response to the email, the manager told Tetu‘s counsel that the request would be presented to the condominium homeowner‘s association or board of directors. Counsel, however, did not receive a further response.
Tetu filed a pretrial motion to compel discovery in the Circuit Court of the First Circuit (circuit court)3 requesting access to the condominium premises, arguing that “location is everything” and that “[t]he defense must examine the area from its own perspective.” The motion provided four reasons why access to the condominium was necessary. First, “[t]he State‘s diagrams, video[,] and photograph discovery d[id] not adequately orient [Tetu] and [his] counsel to the area in question for purposes of cogently presenting this case to a jury.” Second, the footage only included a “partial photo” of the interior of one of the utility closets. Third, noting that the diagrams were not drawn to scale, the defense requested access to “help counsel to intelligently question and cross-examine witnesses, present visual evidence to the jury and to understand the account” of Tetu, who was in custody. Fourth, access was needed to
The State opposed the motion, arguing that Rule 16 of the Hawai‘i Rules of Penal Procedure (HRPP) (2012) only required the prosecution to deliver material and information within the prosecutor‘s possession or control or in the possession or control of other governmental personnel. The State also argued that because eight months had passed before defense counsel first attempted to access the condominium and fifteen months had elapsed since the incident, any inspection or photographs taken of the premises would not accurately depict the scene at the time of the offense and would not be relevant or admissible under
A hearing was held on the motion to compel discovery. No representatives from Maunaihi Terrace were present. Defense counsel argued that Tetu‘s constitutional rights to effective representation and to confront witnesses would override any privacy considerations. The circuit court concluded, however, that any evidence at the condominium would not be relevant under
Approximately two months later, the prosecution—without defense counsel‘s knowledge—visited the crime scene with the condominium manager to inspect the basement and take additional photographs. When the defense was provided with these new photographs prior to trial, Tetu sought to exclude their admission into evidence. The defense argued that fairness demanded that the prosecution not be allowed to visit the crime scene and collect evidence for presentation at trial after the defense‘s request to do the same was denied. The prosecutor stated that she went to the condominium to take additional photographs so that the jurors could have “a bigger or a better idea” of what the condominium building looked like. Tetu‘s counsel argued that this was inconsistent with the State‘s earlier position that there was “no need” to take additional photographs of the alleged crime scene.7
In response to the court‘s question regarding the two sets of photographs, defense counsel stated that while the new photographs showed differences in the closets’ contents, major differences were not apparent.
At trial, the State‘s first witness was the condominium manager. Using a blueprint of the condominium, the prosecution asked the manager to orient the court to the location of the elevators and the utility closets in the basement of the building.
[Manager]: Well, there‘s elevator mauka and elevator makai, and it‘s called electrical closet and it‘s called stor[age], but it‘s another electrical closet.
[Prosecutor]: Okay. So they‘re right across from each other, the two utility rooms?
[Manager]: Yes, and that‘s the little hallway there.
The prosecution used the photographs that the defense had moved to exclude to identify several objects and rooms shown in the photographs. Next, the prosecution played the surveillance video for the jury and asked the manager to narrate what he saw and to place the events of the video in context with the building‘s layout.
[Prosecution]: And what part of the basement is that?
[Manager]: He just headed towards the laundromat, the laundry room.
[Prosecution]: And is there a hallway that connects all sides of the basement to the elevators?
[Manager]: Sorry, yes. There‘s another hallway just like this right on that side where he just emerged from.
The manager described Tetu breaking into two of the closets with some kind of tool, wiping the door handles with his jacket, and leaving the closets with a bag of “stuff” and a flashlight in his mouth. The manager testified that the wood around the door knobs was damaged after the incident and that only those persons with keys had access to the storage closets, as he always kept the doors to the closets locked.
Tetu‘s counsel cross-examined the condominium manager and likewise attempted to establish the layout of the basement area where the utility closets were located.
[Defense]: When we went over the photographic evidence, you made reference to a makai utility room and a mauka utility room, correct?
[Manager]: Yes.
[Defense]: Okay. And when I saw some reports referenced to east and northeast utility closets, do you ever use those distinctions?
[Manager]: I don‘t, no.
[Defense]: So if there‘s a reference to an east closet, would you be able to tell us if that‘s the mauka or makai one?
[Manager]: I‘ve never heard it referred to as the east or—or what did you say?
[Defense]: Northeast. So your distinction is mauka-makai?
[Manager]: Yes.
. . . .
[Defense]: Okay. Sir, I‘m going to show you Exhibits 23 and 24 in evidence. I‘ll ask you—this is 23. Which—which utility closet is this one?
[Manager]: This is the mauka utility closet.
[Defense]: And, okay, and 24 would be makai?
[Manager]: It‘s the same—no, it‘s the same one.
[Defense]: It‘s the same closet?
[Manager]: Yeah.
[Defense]: Oh, okay. Sorry. Oh, my mistake. Okay.
Tetu‘s former wife testified as a rebuttal witness for the State. She related that she never asked Tetu to pick up a bag of her clothes and that she had never been to Maunaihi Terrace or stored anything there.
In its closing argument, the defense argued that because Tetu entered with the intent to retrieve his former wife‘s clothing and not to steal anything, Tetu was a trespasser, not a burglar. The court instructed the jury on the elements of burglary in the second degree and criminal trespass in the first degree under
B. Appellate Proceedings
Tetu appealed the judgment of conviction to the Intermediate Court of Appeals (ICA), arguing that (1) the circuit court erred in denying his discovery request to access the crime scene and that (2) the verdict was not supported by the evidence adduced at trial. The State responded that the right to discovery in a felony case is the right to receive material and information possessed by the prosecution and its agents concerning the case. Because the State did not possess or have control over Maunaihi Terrace, the State maintained that defense counsel did not have a right under HRPP Rule 16 to compel discovery of the condominium. Further, the State argued that the appearance and configuration of the condominium more than a year after the incident rendered Tetu‘s reasons for requesting access irrelevant. In response, Tetu contended that the passage of time alone does not diminish the importance of accessing the crime scene and that inspecting areas of the property would have likely shown an exit-only door with no signs of forced entry, corroborating that his former wife let him into the condominium.
The ICA issued a memorandum opinion affirming Tetu‘s conviction. Citing case law from other states, the ICA observed that the court must balance the defendant‘s need for access to the crime scene with the private party‘s right to privacy. The ICA noted, “A speculative or conclusory showing, or the failure to explain how the proposed inspection would yield information different from that already disclosed in discovery, is insufficient to overcome the privacy rights of the private party.” The ICA held that a defendant must “make a prima facie showing of how the proposed inspection would be relevant and material to his or her defense” and “demonstrate sufficient ‘plausible justification’ and ‘good cause’ for the intrusion.‘” The ICA ruled that Tetu did not sufficiently explain to the circuit court how becoming familiar with the scene was relevant to his defense. Thus, it affirmed the circuit court‘s order denying Tetu‘s motion to compel discovery. The ICA also rejected Tetu‘s claim that there was insufficient evidence to support his conviction.
II. STANDARD OF REVIEW
[1, 2] This court reviews questions of constitutional law “by exercising our own independent constitutional judgment based on the facts of the case.” State v. Phua, 135 Hawai‘i 504, 511-12, 353 P.3d 1046, 1053-54 (2015); accord State v. Mundon, 121 Hawai‘i 339, 349, 219 P.3d 1126, 1136 (2009). Therefore, questions of constitutional law are reviewed under the right/wrong standard. Phua, 135 Hawai‘i at 512, 353 P.3d at 1054; accord State v. Auld, 136 Hawai‘i 244, 250, 361 P.3d 471, 477 (2015).
III. DISCUSSION
A. Motion to Compel Discovery
1. Right to Access the Crime Scene Under HRPP Rule 16
[REDACTED] The issue of whether a defendant has a right to inspect the crime scene is one of first impression before this court. A defendant has a right under HRPP Rule 1610 to discover “material and information within the prosecutor‘s possession or control.” HRPP Rule 16 (2012). Because the State was not in possession of Maunaihi Terrace, HRPP Rule 16 does not expressly provide the defense with access to the crime scene.11 However, the HRPP Rule 16 discovery right does not purport to set an outer limit on the court‘s power to ensure a defendant‘s constitutional rights. See United States v. Yoshimura, 831 F.Supp. 799, 805 (D. Haw. 1993) (“In criminal cases discovery is limited to that required by the due process clause of the Constitution, which requires that the Government make available evidence that is material to guilt or punishment.“); see also United States v. Richter, 488 F.2d 170, 173 (9th Cir. 1973) (stating that although discovery was not allowed under Federal Rules of Criminal Procedure Rule 16, “the rules themselves do not purport to set outer limits on the power of the court“). Accordingly, we consider whether there is a constitutional right to access a crime scene when the defendant is alleged to have committed the offense on private property.12
a. Right to Effective Assistance of Counsel
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A review of several jurisdictions’ codes and performance standards for defense attorneys indicates that in order to assure competent representation, defense counsel should investigate the crime scene and consider seeking access as early as possible, unless circumstances suggest it would be unnecessary in a given case. The American Bar Association‘s ABA Standards for Criminal Justice: Prosecution and Defense Function (ABA Standards) states, “Many important rights of a criminal client can be protected and preserved only by prompt legal action.” Id. § 4-3.7(a) (4th ed. 2015). Thus, “[d]efense counsel should promptly seek to obtain and review all information relevant to the criminal matter, including but not limited to requesting materials from the prosecution.” Id. § 4-3.7(b). In addition to seeking information from other sources aside from law enforcement, see also id. § 4-4.1(c), counsel for a defendant has a specific duty with regard to investigating a case. “Defense counsel‘s investigative efforts should commence promptly and should explore appropriate avenues that reasonably might lead to information relevant to the merits of the matter ....” Id.14
The National Legal Aid and Defender Association‘s (NLADA) Performance Guidelines for Criminal Defense Representations, which was adopted by the Defender Services Advisory Group in 2015, also recommends early inspection of the crime scene:
Counsel should consider seeking access to the scene as soon as possible, accompanied by appropriate personnel to assist in documenting conditions. Counsel should consider seeking access to the scene under circumstances as similar as possible to those existing at the time of the alleged incident (e.g., weather, time of day, and lighting conditions), if different from the initial view of the scene.
Nat‘l Legal Aid & Def. Ass‘n, NLADA‘s Performance Guidelines for Criminal Defense Representations § 4.1(b)(6), at 10 (1995).
Chapter 211D of the Massachusetts General Laws establishes the Committee for Public Counsel Services that is responsible for establishing standards and monitoring the performance of counsel “in order to insure competent representation of defendants.”
Similarly, Louisiana Revised Statutes section 15:146 (2014) establishes the Louisiana Public Defender Board that is charged with, inter alia, “[c]reating mandatory qualification standards for public defenders that ensure that the public defender services are provided by competent counsel.”
[c]ounsel should attempt to view the scenes of the alleged offense and other relevant
events as soon as possible after counsel is assigned [and] . . . should extensively, precisely, and accurately document the condition of any relevant scene using the most appropriate and effective means, including audio-visual recordings, diagrams, charts, measurements, and descriptive memoranda. The condition of the scenes should always be documented in a manner that will permit counsel to identify and prove the condition of the scenes without personally becoming a witness.
Id. § 1907(B)(8)(f)(i).
The State Bar of Texas in its Performance Guidelines for Non-Capital Criminal Defense Representation likewise states that “[w]hen appropriate, counsel or an investigator should attempt to view the scene of the alleged offense as soon as possible after counsel is appointed or retained. . . . Counsel should consider the taking of photographs and the creation of diagrams or charts of the actual scene of the offense.” State Bar of Tex., Performance Guidelines for Non-Capital Criminal Defense Representation § 4.1(B)(8) (2011). Many other states have developed similar performance standards recommending that defense counsel visit the crime scene as appropriate. See, e.g., N.D. Comm‘n on Legal Counsel for Indigents, Minimum Attorney Performance Standards: Criminal Matters § 7.1 (6) (“Where appropriate, counsel should attempt to view the scene of the alleged offense as soon as possible after counsel is appointed. . . . Counsel should consider the taking of photographs and creation of diagrams or charts of the actual scene of the offense.“); accord Va. Indigent Def. Comm‘n, Commonwealth of Virginia Standards of Practice for Indigent Defense § 4.1(b)(5) (2015); N.M. Pub. Def. Comm‘n & the Law Offices of the Pub. Def., Performance Standards for Criminal Defense Representation § 4.1(b)(7) (2014); S.C. Comm‘n on Indigent Def., Performance Standards for Public Defenders and Assigned Counsel (Non-Capital) § 4.1(b)(7) (2013); Ga. Pub. Def. Standards Council, State of Georgia Performance Standards for Criminal Defense Representation in Indigent Criminal Cases § 4.A(B)(f) (2004). Thus, defense counsel‘s investigation of the crime scene has been widely recognized as an essential task in providing legal assistance within the range of competence demanded of attorneys in criminal cases.
Some courts have concluded that defense counsel‘s access to the crime scene implicates a defendant‘s right to effective assistance of counsel. In affirming a family court‘s discovery and inspection order, the New Jersey Supreme Court in State in Interest of A.B., 219 N.J. 542, 99 A.3d 782, 789, 794 (2014), held that a defendant‘s constitutional right to a fair trial allowed the defendant‘s counsel to access the residence where a sexual assault had allegedly occurred. The court determined that “[t]he right to the effective assistance of counsel in a criminal proceeding includes the right to conduct a reasonable investigation to prepare a defense,” id. at 785, and that a “defense attorney‘s visit to the scene of the crime . . . might constitute a professional obligation.” Id. at 793. The court further noted that “[v]isiting the scene of the crime can be critical in preparing a defense” and “the failure of a defense attorney ‘to conduct an investigation of the crime scene’ can constitute ineffective assistance of counsel.” Id. at 790 (quoting Thomas v. Kuhlman, 255 F.Supp.2d 99, 112 (E.D.N.Y. 2003)); see also Williams v. Washington, 59 F.3d 673, 680-82 (7th Cir. 1995) (determining that failure to investigate and visit the scene rendered defense counsel‘s performance deficient and violated the defendant‘s Sixth Amendment rights); Thomas, 255 F.Supp.2d at 109 (“[I]f properly armed with the easily discoverable facts concerning the layout of the victim‘s apartment building, counsel would likely have chosen to highlight the implausibility of the prosecution‘s theory of the crime.“).
These standards show that visiting the crime scene is integral to providing an effective defense. Indeed, in this case, defense counsel‘s reasons for requesting access to Maunaihi Terrace primarily concerned his ability to effectively represent Tetu.16 Tetu‘s
In contrast, Tetu‘s counsel spent the first part of his cross-examination asking the manager to help him understand the orientation of the utility closets. At one point, Tetu‘s counsel confused the positioning of the storage closets and apologized to the manager, “It‘s the same closet? . . . Oh, okay. Sorry. Oh, my mistake. Okay.” Thus, the trial record reflects that the specific reasons Tetu‘s counsel asserted for requesting access to the condominium were substantiated.
[REDACTED] The circuit court‘s reliance on
[REDACTED] In sum, under
b. Due Process Right
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[REDACTED] On several occasions, this court has stated that “[c]entral to the protections of due process is the right to be accorded a meaningful opportunity to present a complete defense.” Id. (quoting Matafeo, 71 Haw. at 185, 787 P.2d at 672). These decisions are consistent with the well-established principle that “all defendants must be provided with the ‘basic tool[s] of an adequate defense.‘” State v. Scott, 131 Hawai‘i 333, 352, 319 P.3d 252, 271 (2013) (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971)); see also Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (determining that a “fundamental element of due process” is the right to “present the defendant‘s version of the facts“).
Discovery is at the very foundation of the fact finding process. Faithful adherence to discovery obligations serves the public interest: Discovery provides the basic information which is necessary to expedite trials and plea decisions in an already overburdened court system and promotes fairness in the adversary system.
State v. Valeros, 126 Hawai‘i 370, 379, 271 P.3d 665, 674 (2012) (quoting State v. Dowsett, 10 Haw.App. 491, 498, 878 P.2d 739, 743 (1994), overruled on other grounds by State v. Rogan, 91 Hawai‘i 405, 423 n.10, 984 P.2d 1231, 1249 n.10 (1999)); see also Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (“[A] criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that [the defendant] has access to the raw materials integral to the building of an effective defense.“).
Due process contemplates mutual obligations of the government and the defense as it relates to the discovery process. See State v. Davis, 63 Haw. 191, 195-96, 624 P.2d 376, 379-80 (1981) (stating that discovery under HRPP Rule 12.1 is a “two-way street“). “Although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, it does speak to the balance of forces between the accused and his accuser.” Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) (citation omitted).
Other jurisdictions have concluded that a defendant has a right under the due process clause to investigate a crime scene. In Henshaw v. Commonwealth, 19 Va.App. 338, 451 S.E.2d 415, 416 (1994), the appellant was denied access to the site of the crime scene located at a private residence, and he was subsequently convicted of voluntary manslaughter. The court concluded that the “due process rights of . . . the Virginia Constitution give a criminal defendant a right to view, photograph, and take measurements of the crime scene.”21 Id. at 419. A similar conclusion
Review of the case law thus demonstrates that due process includes the right of the defendant to access the crime scene to obtain the raw materials integral to building an effective defense. Here, even though surveillance footage was available, it did not show the inside of the closets or how Tetu entered the building. Tetu‘s counsel requested access to the property so that he could photograph areas not depicted in the discovery already produced. A defendant‘s right to due process is infringed when defense counsel is forced to rely on materials provided by the government based on what the police or the prosecution deems relevant at a crime scene—that is, what is photographed, what is included in diagrams, or what is depicted in a video and then disclosed in discovery. In an adversarial system, the right to a fair trial may be compromised when the defendant is required to build a defense based upon the State‘s investigation.
The performance standards and guidelines previously discussed emphasize that counsel should investigate or have adequately considered inspection of the crime scene. A visit to the crime scene may help counsel document and photograph relevant characteristics of the scene, explore avenues of possible defenses, determine if proceeding to trial would be appropriate, enable a cohesive presentation to the factfinder, and understand the defendant‘s account of the events. The prosecution will generally have access to the crime scene via police investigation or independent prosecutorial inquiry. A defendant is therefore likely to be at a disadvantage to a prosecution that has more information about, and more familiarity with, the crime scene. See Dowsett, 10 Haw.App. at 498, 878 P.2d at 743 (“The ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases....” (quoting Wardius, 412 U.S. at 473, 93 S.Ct. 2208)).
Here, Tetu‘s due process right under the Hawai‘i Constitution to access the materials vital to building an effective defense and to have an opportunity similar to the State to obtain information was impaired: first, by the denial of defense counsel‘s initial request for access to the crime scene, and second, by the prosecutor‘s visit to the scene despite opposing Tetu‘s motion on the basis that the defense would not gain anything from an investigation of the scene. As this court has previously stated, “the growth of . . . discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system.” State v. Pond, 118 Hawai‘i 452, 464, 193 P.3d 368, 380 (2008) (quoting Wardius, 412 U.S. at 474, 93 S.Ct. 2208). In this case, however, the circuit court‘s decision to not utilize one such discovery device to allow Tetu access to the crime scene diminished the fairness of the adversary system. See id.
[REDACTED] In short, under
[REDACTED] In Hawai‘i, the right to privacy is also a constitutionally protected right.22 Recognition of a defendant‘s constitutional right to access the crime scene may intrude upon the privacy interests of those directly affected by a crime, property owners, or other occupants of the premises, and an inspection of the scene may be stressful to an alleged victim.
[REDACTED] The drafters of
[REDACTED] Other jurisdictions that have recognized a defendant‘s right to investigate the crime scene have employed such restrictions to minimize governmental intrusion on a property owner‘s privacy rights. The Court of Appeals of Minnesota took this approach in State v. Lee, 461 N.W.2d 245 (Minn. Ct. App. 1990), holding that the trial court abused its discretion in denying the defendant‘s motion to compel access to a private residence, which was the scene of an alleged murder. Id. at 247. The prosecution opposed the defense‘s motion in Lee because it was no longer in “possession or control” of the crime scene and had already provided the defense with photographs, diagrams, and videotapes of the residence. Id. at 246. The appellate court held that “[a] brief inspection of the residence by defense investigators, regulated as to time, place and manner, could be less intrusive upon the victims’ family than a defense effort to obtain equivalent information by compulsory process.” Id. at 247 (citation omitted).23 In Commonwealth v. Matis, 446 Mass. 632, 915 N.E.2d 212, 215 (2006), a case involving the sexual assault of a minor, the court remanded the case to the trial court and specified that the trial court needed to consider the “privacy interests and logistical concerns of the homeowner” and could craft the terms of the order allowing access to the crime scene through time, place, and manner restrictions. The appellate court‘s instructions on remand provided examples of restrictions that the trial court could apply to protect privacy rights. Id. The Matis court instructed as follows:
The order [allowing access to the crime scene] should be specific as to scope, and may include, among other things, conditions as to who may have access on behalf of the defense, when that access may occur and for how long, and whether additional persons should be permitted or required to attend to ensure the peaceable nature of the inspection, the integrity of the evidence, and the privacy of matters beyond the scope of the order.
In this case, the circuit court could have placed restrictions on defense counsel‘s access to investigate and photograph the basement area in and around the utility closets.25 Such appropriate time, place, and manner restrictions would have minimized any infringement on the condominium owners’ privacy rights without impairing Tetu‘s constitutional rights to effective assistance of counsel and a fair trial.26
4. Relevancy and Materiality Requirement
[REDACTED] The concurrence acknowledges that a defendant in Hawai‘i has a constitutional due process right to access the crime scene, but it would make the right conditional. In order to exercise the right under the concurrence‘s proposed test, the defendant would be required to “make a threshold showing” that “inspection of the [crime] scene will lead to relevant evidence on a material issue.” Concurrence at 227, 229, 386 P.3d at 864, 866.
In jurisdictions that have required a defendant to satisfy a relevancy and materiality test (or some alternative standard) to justify access to the crime scene, a primary concern has been the right to privacy of complainants or third parties.27 This concern can be readily addressed by application of time, place, and manner restrictions imposed by a court to protect the privacy interests of property owners or occupants without the imposition of an evidentiary threshold test.28 There may
Additionally, requiring a defendant to demonstrate that access to the crime scene “will lead” to relevant evidence on a material issue undermines the defendant‘s constitutional rights to effective assistance of counsel and to a fair trial. The time necessary for defense counsel to obtain discovery in order to establish that accessing the crime scene would lead to relevant evidence on a material issue conflicts with the previously cited professional standards that defense counsel should access the scene without delay to inspect it, take measurements, and record relevant conditions.29 The defendant‘s inability to make a threshold showing of relevancy and materiality to justify inspecting the crime scene at an early point in the proceedings30 may be the result of a delay in the State‘s required disclosure of discovery under HRPP Rule 16 because of uncompleted investigative reports, pending test results, or even administrative backlog.
Further, the reasons put forward by the defense to access the crime scene are likely to be challenged by the State as to whether they demonstrate that access ”will lead to relevant evidence on a material issue.” Concurrence at 227, 386 P.3d at 864 (emphasis added). That is, counsel for the State, who will generally have ready access to the crime scene, may contend that opposing counsel should not be granted access because of relevance, passage of time, or cumulativeness of evidence—which were precisely the grounds of the State‘s objections in this case. If a trial court is required to determine whether access to a crime scene would lead to relevant evidence not previously disclosed on a material issue, the court would need to be cognizant of the contents of all discovery previously provided by the State, any other materials obtained by the defense‘s investigation, and the possible defenses to be asserted at trial.31
[REDACTED] Although the inherent difficulty of such a judicial calculation is plainly evident, the concurrence suggests that its proposed threshold burden is necessary in part to counter requests for access that have no “legitimate purpose.” Concurrence at 228, 386 P.3d at 865. To the extent that the concurrence portends that counsel will submit frivolous or illegitimate requests for access
The concurrence also maintains that, under the proposed relevancy and materiality test, “in the vast majority of cases, a defendant should easily be able to” exercise his or her constitutional right to access the crime scene. Concurrence at 228, 386 P.3d at 865. However, as described above, there are numerous reasons why this prediction is dubious. In fact, it is likely that defense counsel would frequently be denied the opportunity to investigate the scene of the crime and thus be prevented from fulfilling professional standards. This case is a prime example. Defense counsel provided the following reasons for seeking access to the condominium premises: (1) to make best use of cross-examination and impeachment of witnesses at trial; (2) to understand the account of his client; (3) to take photographs of areas not shown in the discovery that “may be significant to the defense“; and (4) to coherently present the case to a jury. The circuit court determined that Tetu‘s counsel had presented “no real plausible justification” for access to the crime scene and that the request for access was speculative “with a hope to turn up something.” Similarly, the ICA concluded that Tetu‘s reasons did not satisfy its requirement that counsel “make a prima facie showing of how the proposed inspection would be relevant and material to [his] defense.” These court rulings indicate that Tetu would not have satisfied the concurrence‘s threshold test that “inspection of the crime scene would lead to relevant evidence on a material issue,”35 despite the fact that the reasons provided
[REDACTED] While the reasons that Tetu‘s counsel provided are inherent to providing effective assistance of counsel and apply in nearly all criminal cases, they did not demonstrate that access to the scene would satisfy the concurrence‘s test that it “will lead to relevant evidence on a material issue.” This case thus manifests the fundamental point that the duties required of defense counsel by virtue of the obligation to render effective assistance are not limited to seeking relevant evidence on a material issue, and, in fact, encompass a range of litigation efforts that are fundamental to an effective defense—yet do not solely involve pursuing such evidence.37 Rather, as established by the professional standards for defense counsel, a meaningful opportunity to present a complete defense secures allowance for counsel to timely inspect and investigate the crime scene in order to provide effective assistance. See State v. Kaulia, 128 Hawai‘i 479, 487, 291 P.3d 377, 385 (2013) (“Central to the protections of due process is the right to be accorded a meaningful opportunity to present a complete defense.” (quoting State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990))). Requiring counsel to satisfy a court that granting access to the crime scene will lead to relevant evidence on a material issue forces a defendant to justify the exercise of the rights given by our constitution to present an effective defense and to receive a fair trial.
5. Harmless Error
[REDACTED] The circuit court erred in not allowing Tetu‘s counsel to inspect and photograph the crime scene, a private condominium building, subject to appropriate restrictions that would have properly considered the condominium owners’ privacy rights. However, a violation of a constitutional right is subject to the harmless-beyond-a-reasonable-doubt standard. See State v. Peseti, 101 Hawai‘i 172, 178, 65 P.3d 119, 125 (2003) (noting that a violation of the constitutional right to confront witnesses is subject to the harmless beyond a reasonable doubt standard). This standard requires a court to “examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction.” Id. (quoting State v. Balisbisana, 83 Hawai‘i 109, 113-14, 924 P.2d 1215, 1219-20 (1996)); see also State v. Aplaca, 96 Hawai‘i 17, 25, 25 P.3d 792, 800 (2001) (“This court applies the harmless error doctrine to
Here, the evidence presented against Tetu at trial was compelling. The jury observed surveillance footage that showed Tetu breaking into two storage closets with a tool and using his jacket to wipe the door knobs. Tetu testified that he used a piece of wire to open the locked closets. The jury also observed in the footage Tetu leaving the closets carrying a garbage bag of items with a flashlight in his mouth. The condominium manager testified that he had checked the utility closets a few days before the incident and that on the day after the incident, an electric grinder and several emergency lights and batteries were missing. The manager further testified that the closets were always locked and only individuals with keys had access to the closets. Finally, Tetu‘s testimony that the bag contained his former wife‘s clothing, instead of stolen property, was wholly contradicted by the testimony of his former wife.
In light of the evidence adduced at trial, the trial court‘s error in denying access to the crime scene in this case was harmless beyond a reasonable doubt.
B. Sufficiency of the Evidence
This court will “not overturn a conviction by a jury if ‘viewing the evidence in the light most favorable to the [prosecution], there is substantial evidence to support the conclusion of the trier of fact.‘” State v. Matavale, 115 Hawai‘i 149, 158, 166 P.3d 322, 331 (2007) (alteration in original) (quoting State v. Moniz, 92 Hawai‘i 472, 476, 992 P.2d 741, 744 (App. 1999)). Substantial evidence is “credible evidence which is of sufficient quality and probative value to enable [a person] of reasonable caution to support a conclusion.” Id. at 158, 166 P.3d at 331 (alteration in original) (quoting State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992)). Further, when considering the legal sufficiency of evidence to support a conviction, such “evidence adduced in the trial court must be considered in the strongest light for the prosecution.” Id. at 157, 166 P.3d at 330. It is not the role of the appellate court to weigh credibility or resolve conflicting evidence. State v. Wallace, 80 Hawai‘i 382, 418, 910 P.2d 695, 731 (1996).
[REDACTED] A person commits burglary in the second degree if the person “intentionally enters or remains unlawfully in a building with intent to commit therein a crime against a person or against property rights.”
IV. CONCLUSION
A defendant‘s right to due process under
In this case, although Tetu was wrongly denied access to the crime scene, the error was harmless beyond a reasonable doubt. Therefore, the judgment on appeal of the ICA is affirmed for the reasons stated herein.
I. Introduction
The due process clause of the Hawai‘i Constitution provides a criminal defendant with the right to access the crime scene to prepare for trial. However, I respectfully dissent from the Majority‘s conclusion that a defendant is entitled to access a crime scene that is located on private property, without any showing of need. In my view, a defendant should be required to demonstrate why inspection of the scene will lead to relevant evidence on a material issue. This is not a difficult burden, and in most cases a defendant‘s request for access to the scene should be granted. In contrast, the Majority‘s approach—which recognizes an absolute right of access, subject only to “time, place, and manner” restrictions—does not adequately protect the privacy of victims or other third parties. Specifically, in some cases, a defendant‘s request to access the crime scene may lack a valid evidentiary purpose. Moreover, it may cause additional trauma for victims who could be compelled to allow defendants access to their home, if it was the scene of the crime.
In the instant case, Tetu made a sufficient showing and thus, the circuit court should have granted him access. However, the circuit court‘s error in denying Tetu access to the crime scene was harmless beyond a reasonable doubt. Thus, I concur in the result reached by the Majority.
II. Discussion
The due process clause of the Hawai‘i Constitution provides a criminal defendant with the right to access the crime scene. Such access ensures that the defendant has an opportunity to be heard in his or her defense, which is a “basic ingredient[ ] of due process of law.” Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, I respectfully disagree with the Majority‘s conclusion that a defendant is entitled to access the crime scene without any showing of need. The situations in which these requests will arise—involving access to private property which is no longer in police control—implicate significant privacy concerns. See In Interest of A.B., 99 A.3d 782, 793 (N.J. 2014) (in a case involving an alleged sexual assault on a six-year old girl in her home, court notes that “[t]he right to privacy in one‘s home is a basic right, and all alleged victims of crime have an interest in not revisiting a traumatic event.“). These concerns are not alleviated by the Majority‘s “time, place, and manner” restrictions.
Indeed,
Rather, I would require the defendant to make a threshold showing that the inspection of the crime scene would lead to relevant evidence on a material issue. This requirement is not novel or groundbreaking. Nearly every jurisdiction to address this issue requires some type of threshold showing by the defendant. See, e.g., A.B., 99 A.3d at 793 (“The burden rests with the defendant to show a reasonable basis to believe the inspection will lead to relevant evidence on a material issue.“); State v. Muscari, 807 A.2d 407, 417 (Vt. 2002) (requiring “some showing that the requested intrusion is relevant and material“); Henshaw v. Commonwealth, 451 S.E.2d 415, 420 (Va. Ct. App. 1994) (requiring a “prima facie showing of relevance“); People v. Nicholas, 599 N.Y.S.2d 779, 783 (N.Y. Sup. Ct. 1993) (requiring a “prima facie showing . . . [of] relevant [and necessary] material evidence . . . not already provided“); Bullen v. Superior Ct., 204 Cal.App.3d 22, 251 Cal. Rptr. 32, 34 (1988) (requiring sufficient “plausible justification” and “good cause” for the intrusion).
The Majority acknowledges these cases, but instead would grant all requests for access, and then have trial courts apply “time, place, and manner” restrictions. I respectfully believe that the Majority‘s approach will not provide sufficient protection for the interests of victims and private citizens who, through no choice of their own, find that their home or other property has become a crime scene. Further, trial courts should be empowered to deny requests for access that do not appear to have a legitimate purpose. See A.B., 99 A.3d at 793 (“Any discovery request that has as its objective causing intimidation, harassment, or abuse of an alleged victim is wholly illegitimate and must be denied.“).
To be clear, most requests for access will be legitimate, and in the vast majority of cases, a defendant should easily be able to show why inspection of a crime scene will lead to relevant evidence on a material issue. However, in some cases, a defendant‘s request may not have a valid evidentiary purpose and may have the potential to cause additional trauma for victims. See A.B., 99 A.3d at 794 (stating that in a sexual assault case, the complaining witness‘s family desired to “not to suffer the traumatizing effect of the [defendant‘s] presence in their home“).2
In my view, Tetu has made a threshold showing that an inspection of the crime scene would lead to relevant evidence on a material issue. Therefore, I agree with the Majority that Tetu had a right to access to the crime scene. The instant case involved an alleged burglary where the physical conditions of the premises were relevant to whether Tetu intentionally entered a building, a required element of both first and second degree burglary. Since the fire-exit door was “exit-only” and had no signs of forced entry, inspection of the crime scene would have provided Tetu with evidence to support his theory that Itada led him to Maunaihi Terrace and held the fire-exit door open for him, and that he entered the building to retrieve her clothing, not to take anything that did not belong to him.
Additionally, Tetu noted in his motion to compel discovery that the photographs that police provided him omitted relevant parts of the property, including one of the utility closets. Tetu‘s counsel argued that the State‘s photographs, diagrams, and video surveillance did not adequately orient him to the area in question. Tetu‘s counsel desired access to the crime scene to measure distances between objects and acclimate himself to the crime scene to be able to cross-examine witnesses and understand Tetu‘s account of events. A visit to the crime scene would have helped Tetu‘s counsel acquire a more complete understanding of Tetu‘s account of events, document and photograph relevant parts of the crime scene, and develop Tetu‘s possible defenses. At trial, as the Majority
The Majority acknowledges “rare cases” in which its “time, place, and manner restrictions” will not be sufficient. See Majority Opinion at 222-23, 386 P.3d at 859-60. However, the Majority does not offer any further explanation, leaving trial courts without guidance on how to identify those cases. Therefore, I respectfully disagree with the Majority and would require the defendant to demonstrate that access to the crime scene will lead to relevant evidence on a material issue.
III. Conclusion
I dissent from the Majority‘s holding that a defendant‘s access to the crime scene is absolute and subject only to “time, place, and manner” restrictions. Rather, I would require the defendant to make a threshold showing that the inspection of the crime scene would lead to relevant evidence on a material issue—a standard adopted by nearly every other state to have considered this issue. Requiring that showing is particularly appropriate in Hawai‘i, since our Constitution specifically protects an individual‘s privacy. Respectfully, the Majority‘s approach does not sufficiently protect a victim‘s privacy rights.
However, since I agree with the Majority that Tetu‘s conviction should be affirmed, I concur in the result.
Notes
(1) A person commits the offense of burglary in the second degree if the person intentionally enters or remains unlawfully in a building with intent to commit therein a crime against a person or against property rights.
(2) Burglary in the second degree is a class C felony.
On appeal to the Colorado Supreme Court, the court rejected the Court of Appeals’ holding that there was a due process right of access. See E.G., 368 P.3d 946, 954 (2016). Thus, it held that “neither a criminal defendant, nor anyone else, including the prosecuting attorney, has a constitutional right to force a third party to open her private home for investigation,” but affirmed the Court of Appeals and trial court‘s result. Id.
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
All relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States and the State of Hawai‘i, by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
(1) A person commits the offense of criminal trespass in the first degree if:
(a) That person knowingly enters or remains unlawfully:
(i) In a dwelling; or
(ii) In or upon the premises of a hotel or apartment building.
. . . .
(2) Criminal trespass in the first degree is a misdemeanor.
HRPP Rule 16 (2012).(b) Disclosure by the Prosecution.
(1) Disclosure of Matters Within Prosecution‘s Possession. The prosecutor shall disclose to the defendant or the defendant‘s attorney the following material and information within the prosecutor‘s possession or control:
. . . .
(2) Disclosure of Matters Not Within Prosecution‘s Possession. Upon written request of defense counsel and specific designation by defense counsel of material or information which would be discoverable if in the possession or control of the prosecutor and which is in the possession or control of other governmental personnel, the prosecutor shall use diligent good faith efforts to cause such material or information to be made available to defense counsel; and if the prosecutor‘s efforts are unsuccessful the court shall issue suitable subpoenas or orders to cause such material or information to be made available to defense counsel.
While HRPP Rule 17 is “not a rule providing for an additional means of discovery,” Town, 122 Hawai‘i at 214, 225 P.3d at 656 (quoting State v. Pacarro, 61 Haw. 84, 86, 595 P.2d 295, 297 (1979)), the features of a crime scene are routinely admissible into evidence.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against the accused . . . and to have the assistance of counsel for the accused‘s defense.
“Counsel‘s investigation should also include evaluation of the prosecution‘s evidence (including possible re-testing or re-evaluation of physical, forensic, and expert evidence) and consideration of inconsistencies, potential avenues of impeachment of prosecution witnesses, and other possible suspects and alternative theories that the evidence may raise.” Id. § 4-4.1(c).
No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person‘s civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.
The several circuit courts shall have power:
(1) To make and issue all orders and writs necessary or appropriate in aid of their original or appellate jurisdiction;
. . . .
(6) To make and award such judgments, decrees, orders, and mandates, issue such executions and other processes, and do such other acts and take such other steps as may be necessary to carry into full effect the powers which are or shall be given to them by law or for the promotion of justice in matters pending before them.