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Electronically Filed
Supreme Court
SCWC-11-0000550
30-JAN-2014
09:14 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
SHAUN L. CABINATAN,
Petitioner/Defendant-Appellant.
SCWC-11-0000550
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000550; CR. NOS. 10-1-0904, 09-1-0854)
JANUARY 30, 2014
RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ.; WITH ACOBA, J.,
CONCURRING AND DISSENTING SEPARATELY, WITH WHOM POLLACK, J., JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.
Shaun L. Cabinatan was convicted in the Circuit Court
of the First Circuit of Burglary in the First Degree and
Unauthorized Entry Into Motor Vehicle (UEMV) in the First Degree,
in relation to an incident on June 2, 2010, in which Cabinatan
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and co-defendant Kimo Moore allegedly participated in a burglary
of a Makakilo home and the unauthorized entry into a van at a
separate location.1
According to the State, Moore entered Jennifer
Kincaid’s garage and Jeffrey Sampson’s van, while Cabinatan was
the “getaway driver.” Kincaid was the only witness who
identified Cabinatan as the driver in the incidents.
Specifically, Kincaid identified Cabinatan and Moore in a field
show-up procedure conducted at a traffic stop shortly after she
reported the burglary to police. Cabinatan and Moore, who were
handcuffed, were the only two suspects present at the field show-
up. According to Kincaid, police informed her prior to the field
show-up that they had stopped a vehicle that matched her
description and contained items she described were stolen.
At trial, Cabinatan maintained that Kincaid
misidentified him. Cabinatan also presented testimony from a
witness indicating that Cabinatan was at her home at the time of
the offenses.
Cabinatan requested specific jury instructions
regarding the reliability of identification testimony,
identification procedure, and field show-up identifications. The
circuit court denied Cabinatan’s request. The jury found
Cabinatan guilty of Burglary in the First Degree and UEMV in the
1
The Honorable Edward H. Kubo, Jr., presided.
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First Degree. Based on the foregoing convictions, the circuit
court found that Cabinatan violated the terms and conditions of
his probation in an unrelated 2009 case in which he was convicted
of Escape in the Second Degree, and thus revoked his probation in
that case.
The Intermediate Court of Appeals affirmed Cabinatan’s
burglary and UEMV convictions and the circuit court’s probation
revocation order. State v. Cabinatan, No. CAAP-11-0000550, 2012
WL 6720380, at *4 (Haw. App. Dec. 27, 2012).
Cabinatan argues that his burglary and UEMV convictions
should be vacated because the circuit court abused its discretion
in refusing to provide specific jury instructions on eyewitness
identification. Cabinatan argues that the circuit court’s order
revoking his probation based on the burglary and UEMV convictions
should therefore also be vacated.
For the reasons set forth below, we hold that, under
the particular circumstances of this case, the circuit court
abused its discretion in refusing to give a specific instruction
on field show-up identifications. Accordingly, we vacate the
ICA’s judgment on appeal, the circuit court’s Judgment of
Conviction and Sentence in Cr. No. 10-1-0904, and the circuit
court’s “Order of Resentencing; Revocation of Probation” in Cr.
No. 09-1-0854, and remand this case to the circuit court for
further proceedings consistent with this opinion.
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I. Background
The following factual background is taken from the
record on appeal.
A. Cr. No. 09-1-0854: Escape conviction
On August 4, 2009, Cabinatan pleaded guilty to the
charge of Escape in the Second Degree in violation of HRS § 710-
1021 in Cr. No. 09-1-0854, and was sentenced to five years of
probation. Included among the terms and conditions of
Cabinatan’s probation was the requirement that Cabinatan not
commit another federal or state crime during his probationary
term.
B. Cr. No. 10-1-0904: Burglary and Unauthorized Entry into
Motor Vehicle convictions
On June 15, 2010, Cabinatan and Moore were charged in
Cr. No. 10-1-0904 with Burglary in the First Degree in violation
of HRS § 708-810(1)(c)2 (Count 1), UEMV in the First Degree in
violation of HRS § 708-836.53 (Count 2), Promoting a Dangerous
2
HRS § 708-810(1)(c) (1993) provides:
(1) A person commits the offense of burglary in the
first 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, and:
. . . .
(c) The person recklessly disregards a risk that
the building is the dwelling of another, and the
building is such a dwelling.
3
HRS § 708-836.5 (Supp. 2010) provides, in relevant part:
(1) A person commits the offense of unauthorized entry
(continued...)
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Drug in the Third Degree in violation of HRS § 712-1243 (Count
3), and Unlawful Use of Drug Paraphernalia in violation of HRS
§ 329-43.5(a) (Count 4). Moore entered a no contest plea to the
charges, and was convicted on all counts.
During his opening statement at trial, the deputy
prosecuting attorney (DPA) stated, in relevant part, that Kincaid
saw a driver and passenger in a gray SUV across the street from
her house, later noticed that her bag in her garage was gone, and
called police. The DPA stated that police pulled over an SUV
matching Kincaid’s description, and that during the police
investigation, “witnesses [were] brought down to identify
suspects in the case, or potential suspects in the case.”
Defense counsel contended during his opening statement
that the evidence would show that the State “got the wrong
guy[.]” Under the defense’s theory, a person named Tommy
committed the charged offenses with Moore. According to the
defense, Moore then dropped off Tommy and picked up Cabinatan,
who was in the SUV when it was stopped by police. Defense
counsel told the jury that Kincaid misidentified Cabinatan, and
described the show-up procedure in which Kincaid identified
Cabinatan as “inherently suggestive.”
3
(...continued)
into motor vehicle in the first degree if the person
intentionally or knowingly enters or remains
unlawfully in a motor vehicle, without being invited,
licensed, or otherwise authorized to enter or remain
within the vehicle, with the intent to commit a crime
against a person or against property rights.
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During trial, the jury heard testimony from the
complaining witnesses and witnesses who participated in the field
show-up. Sampson testified that on the morning of June 2, 2010,
he went into his garage in his Makakilo home and saw the driver’s
side door of his van open. Sampson saw “a guy” look up at him
from behind the steering wheel. When Sampson yelled at the
person, the person ran away. Sampson chased the person, who
appeared to be holding Sampson’s CD case. The person jumped into
the passenger side of a silver “small sized SUV type Hyundai[.]”
Sampson was able to get the license plate number, but was not
able to “get a good look” at the driver before the vehicle drove
away.
Sampson called the police, who arrived within about
five minutes. Sampson stated that “within the same ten minutes
when the police were there, they said that they had stopped a
vehicle, and that they had them . . . held up at the side of the
highway[.]” Sampson stated that he went to the traffic stop and
saw “two guys sitting on the side of” the road. Sampson
identified Moore as the person who was in his van.
On cross-examination, Sampson stated that the incident
occurred “[v]ery close to 8:00” in the morning. Sampson could
not recall whether, when police asked him to go to the location
where the SUV was stopped, the police said “anything about
suspects may or may not be there[.]”
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Officer Kaleka Punahele Akana testified that he drove
Sampson to the traffic stop for the “field show-up[.]” Officer
Akana testified that he followed standard procedure, including
telling Sampson “that they’re potential suspects,” to “[k]eep an
open mind,” and “identify them if they’re the people that [he]
saw that took part in the crime.” Officer Akana stated that
Sampson identified Moore as the person he saw running from his
van, but did not identify Cabinatan. Officer Akana also stated
that after Sampson identified Moore, Officer Akana investigated
further and “[r]ecovered a black CD case” from the silver SUV.
During cross-examination, Officer Akana acknowledged
that his police report regarding the Sampson incident indicated
that the incident occurred at 7:50 a.m., and that police were
notified at 8:05 a.m. Officer Akana testified that he was the
first officer to respond to Sampson’s house, and that he arrived
“maybe ten, maybe 15 minutes after the call came in” –- “maybe
around” 8:26 a.m.
Officer Akana answered numerous questions about police
lineups and photographic arrays. For example, Officer Akana
described police lineups as presenting eight to ten people to a
complainant for possible identification of the suspect and stated
that the reason for having eight to ten people in a lineup is “to
make it fair for the person that . . . we’re trying to positively
ID.” Officer Akana explained that police also ensure a fair
process by using people who match the description of the suspect
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in the lineup. Officer Akana also described field show-up
procedures, which he acknowledged do not have the same
“safeguards” as lineups and photographic arrays.
The circuit court asked Officer Akana if “any of the
persons [were] handcuffed during this show-up,” and Officer Akana
stated that they were handcuffed behind their backs. On recross-
examination, Officer Akana acknowledged that Sampson would have
seen that both men were handcuffed.
Kincaid testified that at 8:05 a.m. on June 2, 2010,
she noticed a gray SUV with tinted windows parked across the
street facing the wrong way on the street, which struck her as
“kind of odd[.]” Kincaid stated that she looked at the driver but
didn’t recognize him. Kincaid stated that she saw the driver
through the open passenger window from her garage, about 25 to 30
feet away. Nothing blocked her view of the driver. Kincaid
testified that “it seemed like [the driver] was having [a]
conversation with somebody outside of the vehicle[.]” Kincaid
started to walk toward her driveway to see “if he was talking to
anybody,” and then saw another person standing in the corner of
her driveway. The person walked toward the street and looked
towards her but never made eye contact. After the person looked
toward Kincaid, he talked to the driver of the car. The person
then entered the SUV, and the SUV went up the street. Kincaid
estimated that the time between when she first noticed the driver
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and when the SUV drove away was about five minutes. In court,
Kincaid identified the driver as Cabinatan.
Kincaid saw her neighbor, Doug Campbell, in his
driveway, and she asked him if he knew who was in the SUV. While
Kincaid and Campbell talked, the SUV returned and turned onto
another street. Kincaid said it appeared to her that the person
in her driveway who had gotten into the passenger seat was then
driving the SUV. When asked if the person who was previously
driving was then in the passenger seat, Kincaid answered:
“Correct. But well, I couldn’t see that that person --
obviously, because it was on the opposite side.”
Kincaid went back in her house but shortly afterward
returned to the garage and noticed that her bag and portfolio,
which she left on a couch in her garage, were gone. That
morning, after Kincaid made a police report, the police informed
her that they had potential suspects. Kincaid and her husband
followed Sergeant Bryan Loudermilk to the traffic stop, where
Kincaid pointed out the person she first saw driving the SUV, as
well as the person she saw near her garage. Kincaid also
recognized the SUV as the one that was parked near her house, and
identified her bag in the SUV.
On cross-examination, Kincaid stated that she saw that
the driver was wearing dark sunglasses, a black baseball cap, and
a blue shirt. Defense counsel questioned Kincaid about her
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initial descriptions to police of the driver.4 Kincaid agreed
that she indicated the driver was wearing a black baseball cap,
and acknowledged that she did not indicate on the police form the
color of the driver’s shirt. The time indicated on the
description form read “0756.”5
Defense counsel also questioned Kincaid about the field
show-up. Kincaid testified that responding officers informed her
that police stopped a vehicle that matched her description and
contained items she described were stolen, and asked her to go to
the site to identify the suspects, the vehicle, and her items.
Defense counsel asked, “So the thing that clued you in was the
vehicle and . . . mainly your personal items then?” Kincaid
answered in the affirmative.
Kincaid testified that once she arrived at the traffic
stop, Sergeant Loudermilk told Kincaid that “there would be
individuals there by the car that they would want [her] to look
at to see if [she] could identify whether or not those were the
individuals that were up at [her] house.”
4
Kincaid’s “Suspect, Weapon and Vehicle Description” form for the
“man in car[,]” was entered into evidence as Defendant’s Exhibit J. The form,
which referred to the driver of the SUV, indicated, inter alia, that the man’s
ethnicity was Filipino and Portuguese, that he was in his early 20s, and that
he was wearing sunglasses with black frames, a black baseball cap, and a
short-sleeve T-shirt. The words “Tanned” and “Brown” were circled to indicate
the man’s complexion.
5
Kincaid was not asked whether she filled in the time on the form.
It is unclear from Kincaid’s testimony whether this time was intended to
indicate the time of the incident or when the form was completed. Another
witness, Officer Akana, appeared to testify that generally, this space was
used to indicate when the form was completed.
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Defense counsel also asked Kincaid whether she could
see the driver’s arms and neck and whether she indicated on the
police form that he had any tattoos. Kincaid answered that she
could see his arms but not his neck, and that she did not
indicate on the police form that he had tattoos.
On redirect examination, Kincaid described the police
form, which provided choices that she could circle with regard
to, inter alia, race, complexion, color of glasses frames, and
color of hats. In contrast, there was no color choice to circle
with regard to the suspect’s shirt. The DPA also questioned
Kincaid about the field show-up:
Q. . . . Now, when you identified the men down near
the ramp, did you identify them as the suspects or
because you found your stuff or did you recognize
them?
A. I recognized them.
Q. Okay. So it’s not as if you went, there’s my bag,
these must be the guys?
A. Correct.
Q. Okay. You actually looked at them and decided that
those were the people who you had seen by your house?
A. Yes.
Q. Regardless of whether or not your bags were there?
A. Correct.
On direct examination, Sergeant Loudermilk stated that
on the morning of June 2, 2010, he responded to a UEMV case at
Sampson’s house, and that immediately after he arrived, there was
a report of a burglary at Kincaid’s house. Sergeant Loudermilk
left Sampson’s house and went to Kincaid’s house. Sergeant
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Loudermilk, who at the time lived in Makakilo and was familiar
with the area, estimated the distance between Sampson’s and
Kincaid’s houses as less than half a mile. After listening to
Kincaid’s and Campbell’s statements about the incident, Sergeant
Loudermilk learned about possible suspects detained nearby.
Sergeant Loudermilk described a field show-up: “If
. . . an offense has occurred and we catch a possible suspect a
short distance away and the time limit is a short amount of time,
we bring a witness or complaining witness to where the possible
suspect is and we do an identification at that time.” According
to Sergeant Loudermilk, police are trained to inform witnesses
during field show-ups that “these suspects may or may not be
involved” in the case “so the witness doesn’t feel obligated to
say this is the person when indeed it’s not[.]”
Sergeant Loudermilk described the June 2, 2010 field
show-up in which Kincaid identified Cabinatan and Moore.
Sergeant Loudermilk stated that he and Kincaid were outside of
their vehicles and were about 25 to 30 feet from the suspects
when he asked if she could identify them. According to Sergeant
Loudermilk, Kincaid had an “unobstructed view.” Sergeant
Loudermilk informed Kincaid that the persons at the traffic stop
may or may not be the suspects involved in the case. Kincaid
identified Cabinatan as the driver of the SUV, and stated that
she recognized him from his “facial features.”
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Sergeant Loudermilk estimated that Sampson’s house is
“just around three miles” from the traffic stop, and that the
drive from Sampson’s house to the traffic stop would take
“[a]nywhere from four to six minutes following all traffic laws.”
On cross-examination, Sergeant Loudermilk agreed that
he arrived at Sampson’s home at about 8:35 a.m., and arrived at
Kincaid’s home at about 8:40 a.m. Sergeant Loudermilk was at
Kincaid’s house for about 15 minutes before he proceeded to the
traffic stop. Sergeant Loudermilk testified about what he told
Kincaid regarding the field show-up:
When we were [at Kincaid’s house], I asked her if she
could identify the people that she saw on Limukele
[Street]. She related she could.
. . . .
Then I asked her if she would view some people that we
have down at the bottom of the hill, see if these
people were involved or not.
. . . .
She related she would.
. . . .
And then the husband drove her down to where I
indicated earlier. I followed. We got out of the car
and . . . I told her also that . . . just because
police officers are showing you these people doesn’t
mean they’re involved or not. If you can identify
them, let us know.
Sergeant Loudermilk stated that he was not sure if he
asked Kincaid at her house if she could go to the traffic stop to
see if she could identify her property, but said that he “may
have.” Sergeant Loudermilk stated that Cabinatan and Moore were
handcuffed during the field show-up, and that Cabinatan had on a
light blue shirt. Sergeant Loudermilk testified that Cabinatan
was not wearing dark glasses, and Sergeant Loudermilk did not
recall Cabinatan wearing a hat. Sergeant Loudermilk stated that
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he did not notice tattoos on Cabinatan and did not note the
presence of tattoos on Cabinatan in his police report.
Sergeant Loudermilk also discussed the differences
between a field show-up and line-ups and photographic arrays. In
discussing lineups and photographic arrays, Sergeant Loudermilk
stated that police try to include people with similar
characteristics as the suspect, but stated that if the suspect
was described as having a hat and sunglasses on, “I would have
the hats go off and the glasses go off.” Sergeant Loudermilk
acknowledged that police did not have Kincaid identify Cabinatan
in a line-up or photographic array. Sergeant Loudermilk also
stated that “because of the time, the distance, the fact that []
Kincaid said she could identify the people, that is why we did a
field lineup. If she stated that she could not identify who she
saw in front of her house, we would not have taken her down to
the traffic stop.” Sergeant Loudermilk also stated that he told
Kincaid “because [Cabinatan] was with the police, . . . not to
think that he was the person who did it, it’s an alleged
suspect[.]”
Defense counsel asked Sergeant Loudermilk whether
seeing Cabinatan in handcuffs would suggest to Kincaid “that this
is the person we’re looking for,” and the following exchange
occurred:
A. I believe it goes on to the person, if the person
believes it’s suggestive, yes. If another person
doesn’t believe it’s suggestive, it’s not.
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Q. Okay. Isn’t it suggestive to tell a witness that,
in this case, [] Kincaid, that we found your property
before she even makes an ID?
A. I’m not aware that happened.
Q. Okay. If it did happen, isn’t that suggestive?
A. That could be suggestive.
. . . .
Q. If there’s a car that is clearly tied to
perpetrators and the car is present at the scene,
would that be something that’s suggestive to a
witness?
A. If that’s the same car that she saw from --
Q. Yeah.
A. I don't know if it’s suggestive. It --
Q. Kind of?
A. -- maybe makes her believe the person who committed
the crime could be in the vehicle ‘cause she saw the
vehicle, she saw two people inside the vehicle.
Officer Brandan Ross testified that on June 2, 2010, he
was on Makakilo Drive, responding to the UEMV report at Sampson’s
house and that before he reached Sampson’s house, he saw the
“suspect vehicle . . . coming down the hill.” Officer Ross
stopped the SUV, which contained Moore, who was driving, and
Cabinatan. On cross-examination, Officer Ross agreed that he
stopped Moore and Cabinatan at approximately 8:09 a.m.
Officer Lionel Kawada testified that he accompanied
Kincaid to the SUV to inspect it for her items, and that she
identified a bag and a portfolio. Kawada did not remember
whether Kincaid identified Cabinatan before or after she
identified her property.
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Kincaid’s neighbor, Campbell, testified that “anywhere
from 7:35 to eight o’clock” on June 2, 2010, he noticed a male in
Kincaid’s garage and a vehicle he did not recognize parked on the
street.6 When the male “noticed that [Campbell] saw what was
going on, he hid by the wall and he looked at the guy at the
vehicle and [Campbell] heard ‘hurry up, start the car.’”
Campbell was about 50 feet away when he first saw the male, and
about 30 feet away when the male said “start the car[.]” The
male then got into the car, and the car drove up the street.
Campbell spoke to responding police officers shortly
afterward, and they informed him that they had “potential
suspects” and asked him to “go down to identify them.” When
Campbell went to the traffic stop for the field show-up, he saw
that the “police had two suspects. . . . [The officer] asked me
if I could identify the guy and I said, I not a hundred percent
sure, I’m 75 percent sure, and I pointed out one of the guys to
him, and I said, I think that’s the guy” who was on Kincaid’s
property. Campbell was not able to identify the person driving
the SUV.
Defense counsel asked Campbell about, inter alia, a
police form that he filled out to describe the suspect, which
6
Campbell acknowledged that he wrote “7:35" on his police
statement, but stated that a range between 7:35 to 8:00 a.m. was more
accurate. On cross-examination, Campbell stated that he “didn’t have a watch
on,” presumably at the time of the incident.
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stated “0756” as the time. Campbell stated that he did not fill
out the time.
After the State rested, Cabinatan moved for a judgment
of acquittal as to Counts 3 and 4. The circuit court granted the
motion.7
The circuit court, upon Cabinatan’s request, entered
into evidence a certified copy of Moore’s No Contest Plea and
Motion to Defer Plea form in the case.8 The circuit court
informed the jury that “the defense attorney and the prosecutor
[have] stipulated or agreed that [the jury] shall be advised that
[] Moore, in addition to pleading no contest, has asked the Court
. . . for a deferred acceptance of no contest [plea].”
The defense called Pearl Lafaver, who testified, inter
alia, that Cabinatan was at her home in Makakilo the evening of
June 1, 2010 through the morning of June 2, 2010. Lafaver
7
Subsequently, Cabinatan and the State agreed that Exhibits 18
through 20, which pertained to Counts 3 and 4, would not be withdrawn or
stricken, but also would not be provided to the jury during deliberations.
The circuit court later instructed the jury, as agreed to by the parties:
In your deliberations, you are only to consider
[sic] yourself with the guilt or innocence of the
defendant as to Counts I and II. You shall also only
consider the evidence pertaining to those counts that
is being sent back to the jury deliberation room with
you.
Although not at issue in this appeal, we note that the given
instruction did not expressly inform the jury that Exhibits 18 through 20
could not be considered, and also may have confused the jury with respect to
the evidence it could consider as to Counts 1 and 2.
8
Moore chose not to testify at Cabinatan’s trial, asserting his
Fifth Amendment right against self-incrimination.
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testified that she left her home “close[] to eight o'clock” and
that Cabinatan was still there when she left.
Cabinatan testified on his own behalf and denied the
charges. Cabinatan stated that on the evening of June 1, 2010,
he went to Lafaver’s house and slept over. That night, Moore
stopped by, and Cabinatan asked him for a ride the next morning
“into town.” On June 2, 2010, between 7:50 and 8:00 in the
morning, Moore called Cabinatan to say “if [Cabinatan] was ready,
he was coming down the road for pick [Cabinatan] up.” About
three to four minutes later, Moore arrived at Lafaver’s house in
a silver SUV. Cabinatan jumped in and they left. Cabinatan was
in the passenger seat when police pulled over the SUV.
Cabinatan showed the jury that he had tattoos on his
neck and “all over” his left arm and stated that he had those
tattoos for over 10 years. He stated that on June 2, 2010, he
was wearing a “light blue . . . T-shirt[,]” and that he did not
wear a black baseball cap or dark sunglasses. Cabinatan also
described his skin color as “[f]air.”
After the defense rested, the circuit court proceeded
to the settling of jury instructions. The circuit court denied
Cabinatan’s requested instructions on identification testimony,
identification procedure, and field show-up identifications.
Cabinatan’s Requested Instruction No. 1A regarding in-court and
out-of-court identification testimony read as follows:
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[] Cabinatan has pled “Not Guilty” to the
charges against him. The burden of proving the
identity of the person who committed the offenses is
upon the State. The State must prove beyond a
reasonable doubt that this defendant is the person who
committed the offenses. The defendant has neither the
burden nor the duty to show that the offenses, if
committed, were committed by someone else, or to prove
the identity of that other person. You must
determine, therefore, not only whether the State has
proved each and every element of the offenses charged
beyond a reasonable doubt, but also whether the State
has proved beyond a reasonable doubt that this
defendant is the person who committed them.
The State has presented the testimony of one or
more witnesses who may have identified the defendant,
outside-of-court on a prior occasion, or in-court
during this trial, as the person who committed the
offenses. This identification was based upon the
observations and perceptions that the witness made of
the perpetrator at the time the offenses were being
committed. It is your function to determine whether
the witness’ identification of the defendant is
reliable and believable, or whether it is based on a
mistake or for any reason is not worthy of belief.
You must decide whether it is sufficiently reliable
evidence upon which to conclude that this defendant is
the person who committed the offenses charged. You
should consider the observations and perceptions on
which the identification was based, and the
circumstances under which the identification was made.
Although nothing may appear more convincing than a
witness’s categorical identification of a perpetrator,
you must critically analyze such testimony. Such
identifications, even if made in good faith, may be
mistaken. Therefore, when analyzing such testimony,
be advised that a witness’s level of confidence,
standing alone, may not be an indication of the
reliability of the identification.
In evaluating the identifications, you should
consider the observations and perceptions on which the
identifications were based, and the witness’ ability
to make those observations and perceptions. If you
determine that the out-of-court identification is not
reliable, you may still consider the witness’ in-court
identification of the defendant if you find it to be
reliable. However, unless the in-court identification
resulted from the witness’ observations or perceptions
of the perpetrator during the commission of the
offenses, rather than being the product of an
impression gained at the out-of-court identification
procedure, it should be afforded no weight. The
ultimate issues of the trustworthiness of both the
in-court and out-of-court identifications are for you
to decide.
To decide whether the identification testimony
is sufficiently reliable evidence upon which to
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conclude that this defendant is the person who
committed the offenses charged, you should evaluate
the testimony of the witness in light of the factors
for considering credibility that I have already
explained to you. In addition, you may consider the
totality of circumstances in this case, including:
(1) The witness’ opportunity to view the person who
committed the offenses at the time of the offenses.
(2) The witness’ degree of attention to the
perpetrator at the time of the offenses.
(3) The accuracy of any description the witness gave
to the police prior to identifying the perpetrator.
(4) The degree of certainty expressed by the witness
in making any identification.
(5) The length of time between the witness’
observation of the offense and the first
identification.
(6) Discrepancies or inconsistencies between
identifications, if any.
(7) The circumstances under which any out-of-court
identification was made, and whether or not it was the
product of a suggestive identification procedure,
including any words or conduct by the police to the
witness before, during, or after the identification
procedure. In making this determination you may
consider the following circumstances:
• whether anything was said to the witness prior to
the identification procedure, and whether that
procedure was a photo array, line-up, or show-up[;]
• whether the witness was told by the police that
they have caught the culprit, or words to that
effect, after which the witness was brought before
defendant;
• whether the defendant was pointed out by words or
conduct before or during the identification
procedure;
• whether the witness’s identification was made
spontaneously and remained consistent thereafter;
• whether the police conducting the identification
procedure either indicated to the witness that a
suspect was present or failed to warn the witness
that the perpetrator may or may not be present in
the procedure;
• whether the witness was exposed to opinions,
descriptions, or identifications given by other
witnesses, or to any other information or influence
that may have affected the independence of his/her
identification.
(8) Any other factor based on the evidence or lack of
evidence in the case which you consider relevant to
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your determination whether the identifications were
reliable.
Unless the in-court and out-of-court
identifications resulted from the witness’s
observations or perceptions of the perpetrator during
the commission of the offenses, rather than being the
product of an impression gained at the in-court and/or
out-of-court identification procedures, it should be
afforded no weight. The ultimate issue of the
trustworthiness of the identification is for you to
decide.
If, after consideration of all of the evidence,
you determine that the State has not proven beyond a
reasonable doubt that [] Cabinatan was the person who
committed these offenses, then you must find him not
guilty. If, on the other hand, after consideration of
all of the evidence, you are convinced beyond a
reasonable doubt that [] Cabinatan was correctly
identified, you will then consider whether the State
has proven each and every element of the offenses
charged beyond a reasonable doubt.
(Emphases in original).
Cabinatan’s Requested Instruction No. 2A regarding
“Identification Procedures, Risk of Mis-Identification” read:
In this case, the state has presented evidence
that an eyewitness identified the defendant in
connection with the charged offenses. That
identification was made during an out-of-court
identification procedure conducted by the police, and
in-court during trial[]. The identification procedure
conducted by the police either indicated to the
witness that a suspect was present in the procedure or
failed to warn the witness that the perpetrator may or
may not be in the procedure.
Psychological studies have shown that when the
police indicate to a witness that a suspect is present
in an identification procedure, or fail to warn the
witness that the perpetrator may or may not be in the
procedure, there is an increased likelihood that the
witness will select one of the individuals in the
procedure, even when the perpetrator is not present.
Thus, such behavior on the part of the police tends to
increase the probability of a misidentification.
This information is not intended to direct you
to give more or less weight to the eyewitness
identification evidence offered by the state. It is
your duty to determine whether that evidence is to be
believed. You may, however, take into account the
results of the psychological studies, as just
explained to you, in making that determination.
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(Emphases in original).
Finally, Cabinatan’s Requested Instruction No. 3
stated: “Show-up identifications, such as a field show-up, are
inherently suggestive and raise risks of mis-identification.”
The circuit court denied Cabinatan’s requested
instructions, citing this court’s decisions in State v. Vinge, 81
Hawai#i 309, 916 P.2d 1210 (1996); State v. Okumura, 78 Hawai#i
383,
894 P.2d 80 (1995); State v. Padilla,
57 Haw. 150,
552 P.2d
357 (1976); and State v. Pahio,
58 Haw. 323,
568 P.2d 1200
(1977). Based on the cited cases, the circuit court stated that
“because of the amount of intensity which both counsel have
focused the jury on in terms of . . . the identification issue,
the Court’s instructions adequately focuses the jury on
identification, placing the burden squarely on the prosecution’s
shoulder which is to include identification.” Defense counsel
objected to the circuit court’s general instruction on the
prosecution’s burden of proof, insofar as it would be given in
place of the defense’s requested instructions regarding
eyewitness identification. The circuit court acknowledged
defense counsel’s arguments, but stated that it was bound by the
cited cases.
Additionally, the circuit court stated that the factors
a trial court considers in ruling on the admissibility of
identification evidence should not be included in the
instructions as “something that the jury is bound to follow.”
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The court explained that these factors are “a guideline to trial
courts to look for in ruling [on admissibility] as a matter of
law,” and should not be given to the jury.
The circuit court then instructed the jury. Relevant
to the instant case, the circuit court instructed the jury
on the prosecution’s burden of proof, explaining that:
[t]he burden of proof is on the prosecution with
reference to every element of a crime charged, and
this burden includes the burden of proving beyond a
reasonable doubt the identity of the defendant as the
person responsible for the crimes charged.
(Emphasis added).
The circuit court also instructed the jury as follows:
While you must consider all of the evidence in
determining the facts in this case, this does not mean
that you are bound to give every bit of evidence the
same weight. You are the sole and exclusive judges of
the effect and value of the evidence and of the
credibility of the witnesses.
It is your exclusive right to determine whether
and to what extent a witness should be believed and to
give weight to his or her testimony accordingly. In
evaluating the weight and credibility of a witness’s
testimony, you may consider the witness’s appearance
and demeanor; the witness’s manner of testifying; the
witness’s intelligence; the witness’s candor or
frankness, or lack thereof; the witness’s interest, if
any, in the result of this case; the witness’s
relation, if any, to a party; the witness’s temper,
feeling or bias, if any has been shown; the witness’s
means and opportunity of acquiring information; the
probability or improbability of the witness’s
testimony; the extent to which the witness is
supported or contradicted by other evidence; the
extent to which the witness has made contradictory
statements, whether in trial or at other times; and
all other circumstances surrounding the witness and
bearing upon his or her credibility.
Inconsistencies or discrepancies in the
testimony of a witness, or between testimony of
different witnesses, may or may not cause you to
discredit such testimony. In weighing the effect of
inconsistencies or discrepancies, whether they occur
within one witness’s testimony or as between different
witnesses, consider whether they concern matters of
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importance or only matters of unimportant detail, and
whether they result from innocent error or deliberate
falsehood.
If you find that a witness has deliberately
testified falsely to any important fact or
deliberately exaggerated, or suppressed any important
fact, then you may reject the testimony of that
witness except for those parts which you nevertheless
believe to be true.
You are not bound to decide a fact one way or
another just because more witnesses testify on one
side than the other. It is the testimony that has a
convincing force upon you that counts, and the
testimony of even a single witness, if believed, can
be sufficient to prove a fact.
(Emphasis added).
During closing arguments, the DPA stated that
identification was a critical issue in the case and that “what it
really comes down to, ladies and gentlemen, is identity.” The
DPA further stated:
So how can you as a fair-minded juror be sure
beyond a reasonable doubt that [] Cabinatan was the
person that committed these crimes? That’s really,
what the State would argue, is the most important
question. How can you guys be sure that it was
[Cabinatan] behind the wheel?
So let’s look at that evidence. [] Kincaid. []
Kincaid was the victim of the burglary. You heard her
story about getting up at 6:00 and opening up the
garage door. So she has five to 10 minutes of contact
where she comes out, she sees, she said she wasn’t
exactly sure, but she saw for a couple minutes across
the street and through the window that was down []
Cabinatan. Unequivocal identification that morning.
She went down with the police officers and they
said, were you able to identify any of the people
involved? And there wasn’t a question, yes, that man
was the one who was driving the vehicle, at least at
first she did say she recognized that they swapped.
They drove up the street and came back down. And by
the time they came back down they were in different
positions.
Now, [Moore] was driving and [Cabinatan] was the
passenger, which not coincidentally is exactly what
they found when the police pulled them over just
minutes later down the hill near the freeway.
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The DPA stated that Kincaid’s in-court identification
of Cabinatan was “unequivocal.” The DPA also highlighted the
timing of the events and urged the jury to consider whether it
was reasonable to believe Cabinatan’s theory that Moore “and some
random person robbed the house, robbed the car,” and that Moore
then dropped that person off and picked up Cabinatan. The DPA
continued:
And by the way, this random person has to look
so much like [Cabinatan] that [] Kincaid, who’s sure
it was [Cabinatan], . . . mixed up these two people.
So not enough that it was just timing-wise, but he has
to also look just like [Cabinatan]. And also that he
can get back down all the way to the bottom of
Makakilo by about 8:09 when Officer Ross says he would
turn up Makakilo Drive and saw the car coming back
down.
Finally, the DPA discussed field show-ups, and argued
that “if [field show-ups are] so inherently suggestive . . . why
is it that only one person was willing to say, yes, I recognize
this person.”
Defense counsel’s closing arguments included a
discussion about Cabinatan being found without dark sunglasses or
a black baseball cap, contrary to Kincaid’s description of the
driver of the SUV.9 Defense counsel also questioned Kincaid’s
reliability as a witness. Defense counsel discussed the form
Kincaid completed containing her description of the person she
saw with Moore, and argued that “discrepancies” between that
description and Cabinatan raise doubts about the reliability of
9
Police officers were not asked at trial whether sunglasses or a
black baseball cap were recovered from the SUV.
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her identification. For example, defense counsel noted that
Kincaid did not describe the person’s hair or the color of his
shirt, and that her description of the person’s complexion did
not match Cabinatan’s. Defense counsel also noted, inter alia,
that although Cabinatan has tattoos, Kincaid’s form did not
mention any tattoos.
Defense counsel also argued that police line-ups and
photographic arrays are more reliable and fairer than the field
show-up, which he described as a “highly, highly suggestive
procedure.” Defense counsel argued that “the situation was ripe
for [Kincaid’s] misidentification,” stating that police “primed
her” before the field show-up by telling her that they caught the
suspects, and to see if she could identify them, the vehicle, and
her belongings. Defense counsel also noted that Cabinatan and
Moore were handcuffed and surrounded by officers at the time of
the field show-up.
On February 1, 2011, the jury found Cabinatan guilty as
to Counts 1 and 2. The circuit court sentenced Cabinatan to ten
years imprisonment for Count 1 and five years for Count 2, with
both terms to run concurrently to each other.
Following the jury verdict, the State moved to revoke
Cabinatan’s probation that he was serving in Cr. No. 09-1-0854
because Cabinatan’s burglary and UEMV convictions in Cr. No. 10-
1-0904 constituted violations of the term of his probation
requiring that he obey all laws during his probation period. The
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circuit court revoked Cabinatan’s probation and resentenced him
to five years imprisonment to be served consecutive to his
sentence in Cr. No. 10-1-0904.
C. ICA Appeal
On appeal, Cabinatan argued that his burglary and UEMV
convictions in Cr. No. 10-1-0904 should be vacated because the
circuit court abused its discretion in refusing to provide a jury
instruction stating the factors to be considered in assessing the
accuracy of eyewitness identification. Cabinatan also argued
that because the circuit court’s order revoking his probation in
Cr. No. 09-1-0854 was based on his burglary and UEMV convictions
in Cr. No. 10-1-0904, the revocation order should be vacated.
While Cabinatan’s appeal was pending, this court issued
its decision in State v. Cabagbag, 127 Hawai#i 302, 304, 313-15,
277 P.3d 1027, 1029, 1038-40 (2012), which requires circuit
courts to “give the jury a specific eyewitness identification
instruction whenever identification evidence is a central issue
in the case, and it is requested by the defendant[.]” The above
rule was given prospective effect; accordingly, the new rule
would not apply to cases “currently pending on direct appeal.”
Id. at 317,
277 P.3d at 1042. Thus, cases pending on direct
appeal at the time Cabagbag was issued would be evaluated under
the pre-Cabagbag standard; that is, that the decision to give a
specific instruction on eyewitness identification rested in the
sound discretion of the trial court. Id. at 315,
277 P.3d at 1040
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(citations omitted). The appellate court “‘must examine all
aspects of the trial, including the opening statements, the
cross-examination of prosecution witnesses, the arguments to the
jury, and the general instructions given by the court, to
determine whether the jury’s attention was adequately drawn to
the identification evidence.’” Cabagbag, 127 Hawai#i at 317, 277
P.3d at 1042 (quoting Okumura, 78 Hawai#i at 405,
894 P.2d at
102).
In its answering brief, the State acknowledged the new
Cabagbag rule but argued that because Cabinatan’s appeal was
pending when this court issued Cabagbag, the new rule did not
apply. Accordingly, the State argued, the circuit court’s
decision regarding the jury instruction was within its
discretion. The State also argued that the circuit court’s
revocation of Cabinatan’s probation was therefore proper.
The ICA affirmed the circuit court’s judgment of
conviction in Cr. No. 10-1-0904 and the circuit court’s “Order of
Resentencing; Revocation of Probation” in Cr. No. 09-1-0854.
Cabinatan, 2012 WL 6720380, at *4. The ICA first noted that the
new Cabagbag rule regarding specific eyewitness identification
did not apply to the instant case. Id. at *1-2. Thus, the ICA
concluded that the pre-Cabagbag rule applied, and that the
circuit court was not required to provide a special eyewitness
jury instruction under that rule. Id. at *2-3. The ICA also
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held that therefore, the circuit court did not err in revoking
Cabinatan’s probation in Cr. No. 09-1-0854. Id. at *4.
Cabinatan timely filed his Application for Writ of
Certiorari, in which he raises the following questions:
1. Whether the ICA gravely erred in holding that the
circuit court did not abuse its discretion in [failing
to give] a more specific jury instruction on
eyewitness identification?
2. Whether the ICA gravely erred in holding that the
circuit court did not err in revoking Cabinatan’s
probation in Cr. No. 09-1-0854?
II. Standard of Review
Omission of Jury Instructions
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.
State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843, 853 (1996)
(internal quotation marks, brackets, and citations omitted); see
also State v. Nichols, 111 Hawai#i 327, 337,
141 P.3d 974, 984
(2006) (“[O]nce instructional error is demonstrated, we will
vacate, without regard to whether timely objection was made, if
there is a reasonable possibility that the error contributed to
the defendant’s conviction, i.e., that the erroneous jury
instruction was not harmless beyond a reasonable doubt.”).
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III. Discussion
A. The circuit court abused its discretion by refusing to
provide a specific jury instruction on field show-up
identifications
As a preliminary matter, Cabinatan argues that because
his case was pending on appeal prior to our decision in Cabagbag,
the rule we established in that case should be applied here.
However, the rule we set forth in Cabagbag –- that circuit courts
must give a special jury instruction on eyewitness identification
when identification evidence is a central issue and the defendant
requests it –- was prospective. 127 Hawai#i at 315, 317, 277
P.3d at 1040, 1042. Indeed, we expressly stated in Cabagbag that
in reviewing cases pending on direct appeal at the time Cabagbag
was issued, appellate courts are to “apply the rule then in
effect when the cases were tried.” Id. at 317,
277 P.3d at 1042.
Cabinatan’s case was tried months before Cabagbag was decided.
Therefore, we examine Cabinatan’s claim under the pre-Cabagbag
standard.
Under the pre-Cabagbag standard, “‘we must examine all
aspects of the trial, including the opening statements, the
cross-examination of prosecution witnesses, the arguments to the
jury, and the general instructions given by the court, to
determine whether the jury’s attention was adequately drawn to
the identification evidence.’” Cabagbag, 127 Hawai#i at 317, 277
P.3d at 1042 (quoting Okumura, 78 Hawai#i at 405, 894 P.2d at
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102). The jury’s attention must be adequately drawn to the
identification evidence such that specific instructions are
unnecessary. See Pahio, 58 Haw. at 331,
568 P.2d at 1206
(holding that various aspects of the trial “adequately directed
the jury’s attention to the identification evidence and made
defendant’s requested instruction unnecessary”).
Here, we cannot say that the arguments of counsel and
the court’s general instructions adequately drew the jury’s
attention to the issues surrounding Kincaid’s identification of
Cabinatan such that more specific instructions regarding field
show-up identifications were unnecessary. In particular, the
circumstances surrounding Kincaid’s identification of Cabinatan
were sufficiently suggestive as to require the circuit court to
provide further guidance to the jury.
As stated above, Kincaid identified Cabinatan during a
field show-up. While show-ups are permissible, they are
inherently suggestive. See State v. Decenso, 5 Haw. App. 127,
131,
681 P.2d 573, 578 (1984) (“Show-up identifications are
inherently suggestive[.]” (citation omitted)); United States v.
Sanders,
708 F.3d 976, 984 (7th Cir. 2013) (“In a show up, the
police present only one suspect to the identifying witness.
Consequently, show ups are ‘inherently suggestive.’” (citations
omitted)); cf. Okumura, 78 Hawai#i at 392,
894 P.2d at 89
(stating that the identification procedure in which the defendant
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was the only person in the courtroom wearing a prison uniform and
shackles was “suggestive”).
Moreover, the manner in which this particular show-up
was conducted raises concerns warranting a more specific
instruction to guide the jury in assessing the identification
evidence. First, Cabinatan and Moore were handcuffed during the
show-up. Second, Kincaid’s testimony suggests the possibility
that her identification of Cabinatan might have been influenced
by statements police made to her prior to the field show-up.
Kincaid testified that before proceeding to the show-up, she was
informed that police stopped a vehicle that matched her
description and contained items she described were stolen.
Kincaid also stated that police asked her to go to the traffic
stop to identify not only the suspects, but the vehicle and her
items. When asked by defense counsel whether “the thing that
clued [her] in was the vehicle and . . . mainly your personal
items,” Kincaid answered in the affirmative. Sergeant Loudermilk
stated that he was not sure if he asked Kincaid if she could go
to the traffic stop to see if she could identify her property,
but acknowledged that he “may have.” Given the foregoing
circumstances, a more specific instruction to guide the jury on
how to assess such identification testimony was necessary.
In denying Cabinatan’s request for specific
identification instructions, the circuit court relied on this
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court’s prior cases regarding eyewitness identification
instructions. Specifically, the circuit court cited Vinge, 81
Hawai#i 309, 916 P.2d 1210; Okumura, 78 Hawai#i 383,
894 P.2d 80;
Pahio,
58 Haw. 323,
568 P.2d 1200; and Padilla,
57 Haw. 150,
552
P.2d 357, and stated that it was “bound” by the decisions in
those cases. However, while the foregoing cases support the pre-
Cabagbag proposition that a specific jury instruction was not
required under the circumstances of those cases, the pre-Cabagbag
rule ultimately afforded circuit courts discretion in determining
whether to give a specific identification instruction. See,
e.g., Okumura, 78 Hawai#i at 404,
894 P.2d at 101 (“The giving of
special instructions on identification has been regarded as
within the discretion of the trial judge or superfluous in the
light of adequate general instructions.” (quotation marks and
citations omitted)). Accordingly, the foregoing cases did not
preclude the circuit court from providing a specific instruction
on show-up identifications.
The circuit court also indicated it did not believe the
jury should be instructed on factors that relate to the court’s
ruling on the admissibility of identification evidence. Here,
Cabinatan’s Requested Instruction No. 3 stated: “Show-up
identifications, such as a field show-up, are inherently
suggestive and raise risks of mis-identification.” This proposed
instruction referred to two factors a court considers in ruling
on the admissibility of a show-up identification: (1) the
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suggestiveness of the identification procedure used, and (2)
whether the circumstances of the identification support its
reliability or create a likelihood of misidentification. See
DeCenso, 5 Haw. App. at 131-32,
681 P.2d at 578. Accordingly, it
appears the circuit court may have concluded that Cabinatan’s
Requested Instruction No. 3 addressed matters outside the jury’s
fact-finding role.
However, questions of suggestiveness and reliability
also may be at issue for the trier of fact. Put another way, a
trial court may determine that a suggestive show-up
identification is sufficiently reliable to be admissible.
However, the jury is not bound by that determination and is free
to consider the issues of suggestiveness and reliability in
determining whether to credit the identification. See State v.
Briones, 74 Haw. 442, 464,
848 P.2d 966, 977 (1993) (noting that
the “fact finder is uniquely qualified to evaluate the
credibility of witnesses and to weigh the evidence”). Given the
particularly suggestive factors present in this case, including
the handcuffing of the defendants and possible statements by
police that may have influenced Kinkaid’s identification of
Cabinatan, the circuit court should have provided an instruction
regarding the inherent suggestiveness of field show-up
identifications. The failure to do so constituted an abuse of
discretion.
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Moreover, in light of the circumstances discussed
above, we cannot say that the lack of an instruction concerning
the suggestiveness of show-up identifications was harmless beyond
a reasonable doubt. Additionally, identification was a critical
issue in the case, and Kincaid was the State’s only witness who
identified Cabinatan and tied him to the crime. Cabinatan not
only maintained that Kincaid misidentified him, but he presented
testimony from Lafaver indicating that Cabinatan was at her home
at the time of the offenses. Under these circumstances, there is
a reasonable possibility that the instructional error contributed
to Cabinatan’s conviction. See Nichols, 111 Hawai#i at 337, 141
P.3d at 984. Accordingly, we vacate Cabinatan’s burglary and
UEMV convictions in Cr. No. 10-1-0904 and remand for a new trial.
Because our resolution of this issue is dispositive, we
do not reach the issue of whether the circuit court abused its
discretion in declining to give additional instructions on
eyewitness identification. However, we note that to the extent
that Cabinatan receives a new trial, this court’s prospective
rule as set forth in Cabagbag will apply; that is, “when
eyewitness identification is central to the case, [the] circuit
court[] must give a specific jury instruction upon the request of
the defendant to focus the jury’s attention on the
trustworthiness of the identification.” Cabagbag, 127 Hawai#i at
313-14, 277 P.3d at 1038-39. We further note that although this
court in Cabagbag provided a model jury instruction with respect
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to eyewitness identification evidence, we expressly allowed for
modifications of the instruction as well as the development of
other related instructions. Id. at 314, 277 P.3d at 1039.
B. The circuit court’s order revoking Cabinatan’s probation in
Cr. No. 09-1-0854
The circuit court revoked Cabinatan’s probation in Cr.
No. 09-1-0854 based on Cabinatan’s burglary and UEMV convictions.
In light of our above holding regarding Cr. No. 10-1-0904, we
vacate the circuit court’s order revoking Cabinatan’s probation
in Cr. No. 09-1-0854.
IV. Conclusion
For the reasons set forth in this opinion, we vacate
the ICA’s judgment on appeal, the circuit court’s Judgment of
Conviction and Sentence in Cr. No. 10-1-0904, and the circuit
court’s “Order of Resentencing; Revocation of Probation” in Cr.
No. 09-1-0854, and remand the case to the circuit court for
further proceedings.
Edward K. Harada /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Sabrina S. McKenna
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