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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2022
09:06 AM
Dkt. 76 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
BRADLEY GABRIEL, Defendant-Appellant, and
CHYNNA ROBELLO-PASSI and JAMES MALGANA, Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Bradley Gabriel (Gabriel) appeals
from the July 30, 2019 "Judgment of Conviction and Sentence;
Notice of Entry" (Judgment of Conviction and Sentence) entered by
the Circuit Court of the First Circuit (Circuit Court).1 A jury
found Gabriel guilty of one count of Burglary in the First
Degree, in violation of Hawaii Revised Statutes (HRS) § 708-
810(1)(c)(2014).2 Gabriel was sentenced to ten years
1
The Honorable Todd W. Eddins presided.
2
HRS § 708-810 reads in relevant part:
Burglary in the first degree. (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:
(continued...)
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incarceration, to run concurrent with any other sentence
currently being served.
The complaining witness's home surveillance camera
captured two videos of the burglary, which occurred on November
27, 2018. The key issue at trial was the identity of the
burglars. Two police officers, whose testimony was admitted as
lay witness opinion testimony under Hawaii Rules of Evidence
(HRE) Rule 701, identified Gabriel as one of the individuals in
one of the surveillance videos and a still frame photograph taken
from that video.
On appeal, Gabriel raises the following points of
error: (1) the trial court erred in allowing Honolulu Police
Department (HPD) officer Garret Maekawa (Officer Maekawa) and
officer Darren Soto (Officer Soto) to testify as to the identity
of Gabriel in a surveillance video and a photograph taken from
the video; (2) the trial court erred and abused its discretion in
its HRE Rule 403 analysis in allowing the police officers'
identification testimony; and (3) the trial court erred in
failing to give an eyewitness identification instruction to the
jury.
Given the evidence of the police officers' prior
interactions with Gabriel and the Circuit Court's limiting
instructions to the jury, the Circuit Court did not err in
admitting Officer Soto's and Officer Maekawa's lay opinion
testimony as to the identity of Gabriel through the surveillance
video and photograph. We therefore affirm.
I. Background
Plaintiff-Appellee State of Hawai#i (State) charged
Gabriel by felony information with Burglary in the First Degree,
alleging that "[o]n or about November 27, 2018, . . . [Gabriel
(...continued)
....
(c) The person recklessly disregards a risk that the
building is the dwelling of another, and the building is
such a dwelling.
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and co-Defendants] Chynna Robello-Passi [(Robello-Passi)]. . .
and James Malgana [(Malgana)] did intentionally enter unlawfully
. . . the residence of Jason Hirata . . . with intent to commit
therein a crime against a person or property rights . . . in
violation of Section 708-810(1)(c) of the Hawaii Revised
Statutes."3
On May 20, 2019, Gabriel filed a motion in limine to
exclude, among other things, "lay testimony by any police officer
attempting to identify [Gabriel] and based on video or
photographs in this case" because "[s]uch identification evidence
is unfairly prejudicial and invades the province of the jury to
make factual determinations based on observation of evidence."
Gabriel asserts the record does not support why the police
officers' identification would be more correct than the jury's
when the police officers' familiarity with Gabriel is based only
on encounters with Gabriel in the past. The jury can determine
from the evidence the identification of the burglar; thus, the
police officers' identification testimony lacks probative value.
On the same day, the State filed a motion in limine and
requested, inter alia, the trial court to allow identification
testimony by Officer Maekawa and Officer Soto pursuant to HRE
Rule 701, or require a hearing on admission of such testimony
prior to trial.
At the motions in limine hearing on May 28, 2019, the
Circuit Court indicated it would hold an HRE Rule 1044 hearing
(Rule 104 Hearing) before trial on the issue of identification of
Gabriel. On May 29, 2019, after the Rule 104 Hearing and
argument, the Circuit Court concluded that the identification
testimony of Officer Soto and Officer Maekawa identifying Gabriel
3
Although Gabriel, Robello-Passi, and Malgana were charged together,
Robello-Passi entered a no contest plea to the charge and Malgana failed to
appear for trial. Trial proceeded only as to Gabriel. Robello-Passi and
Malgana are not parties to this appeal.
4
HRE Rule 104 permits the trial court to determine "[p]reliminary
questions concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence[.]"
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as one of the burglars in a surveillance video and photograph was
admissible. The Circuit Court also concluded, after an HRE Rule
403 balancing analysis, that the probative value of the police
officers' testimony was not substantially outweighed by the
danger of prejudice. The Circuit Court advised it would issue a
limiting instruction that "the jury can't draw any adverse
inferences from the contacts with the law enforcement."
Furthermore, in settling jury instructions, the parties
agreed that the Circuit Court would issue a limiting instruction
as to the identification testimony and an instruction pertaining
to the credibility of witnesses.
On May 29, 2019, the jury found Gabriel guilty of
Burglary in the First Degree. On July 30, 2019, the Circuit
Court entered the Judgment of Conviction and Sentence.
II. Discussion
A. The Circuit Court did not err in allowing Officer
Maekawa and Officer Soto to give lay opinion testimony
identifying Gabriel in a surveillance video and
photograph.
In his first point of error, Gabriel contends the
trial court erred in allowing Officer Soto and Officer Maekawa to
offer lay opinions identifying Gabriel as the individual in a
surveillance video and photograph when the "high-def"
surveillance video contained an obscured, but not grainy,
depiction of the person therein. Gabriel argues that because the
surveillance video was "not of poor quality[,]" the Circuit
Court's admission of the police officers' lay testimony
identifying him infringed upon the province of the jury, as the
trier of fact, to determine for itself the identity of the
individual in the surveillance video and photograph.5
5
The State published seven exhibits to the jury including: Exhibits 5
and 6, surveillance video clips of what Hirata identified as his living room
with each showing two individuals rummaging through items; and Exhibit 18, a
still frame captured from the Exhibit 5 surveillance video, which the officers
reviewed to identify Robello-Passi and Gabriel in what Hirata identified as
his living room.
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In turn, the State argues that HRE Rule 701, regarding
lay witness testimony, is materially identical to its federal
counterpart and that Hawai#i courts should look to federal case
law in construing this Hawai#i rule. The State contends federal
courts have interpreted Federal Rules of Evidence (FRE) Rule 701
as permitting lay opinion identification testimony from police
officers so long as certain factors are met, and that the
relevant factors were met in this case such that the Circuit
Court properly allowed the police officers to identify Gabriel
from the surveillance video and photograph evidence.
In reviewing the Circuit Court's admission of the
police officers' identification testimony, we consider the
following:
[D]ifferent standards of review must be applied
to trial court decisions regarding the admissibility
of evidence, depending on the requirements of the
particular rule of evidence at issue. When
application of a particular evidentiary rule can yield
only one correct result, the proper standard for
appellate review is the right/wrong standard.
However, the traditional abuse of discretion standard
should be applied in the case of those rules of
evidence that require a "judgment call" on the part of
the trial court.
Ching v. Dung, 148 Hawai#i 416, 427, 477 P.3d 856, 867 (2020)
(quoting State v. West, 95 Hawai#i 452, 456-57,
24 P.3d 648,
652-53 (2001)). "A trial court's determination that evidence is
'relevant' within the meaning of HRE . . . Rule 401 (1993) is
reviewed under the right/wrong standard of review."
Id. (quoting
State v. St. Clair, 101 Hawai#i 280, 286,
67 P.3d 779, 785
(2003)).
Our analysis begins with HRE Rule 701, which provides:
If the witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences is limited
to those opinions or inferences which are (1) rationally
based on the perception of the witness, and (2) helpful to a
clear understanding of the witness' testimony or the
determination of a fact in issue.
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The commentary for HRE Rule 701 states as follows:
This rule is identical with Fed. R. Evid. 701.[6] The
rule retains the common-law requirement that lay opinion be
based upon firsthand knowledge, McCormick § 10, but
liberalizes the traditional doctrine of "strict necessity,"
which allowed such testimony only where "all the facts
cannot be placed before the jury with such clearness as to
enable them to draw a correct inference...." Tsuruoka v.
Lukens, 32 Haw. 263, 264 (1932). The present rule adopts in
its place the more liberal "convenience" test, McCormick
§ 11, allowing such testimony when it is "helpful" to the
trier of fact in determining or clarifying facts in issue.
. . .
Several considerations support substitution of the
"convenience" standard for the "strict necessity" test. As
the Advisory Committee's Note to Fed. R. Evid. 701 puts it:
"[N]ecessity as a standard for permitting opinions and
conclusions has proved too elusive and too unadaptable to
particular situations for purposes of satisfactory judicial
administration." The committee also cited the "practical
impossibility" of distinguishing fact from opinion.
The danger that such liberalization might open the door to
factually unsupported, conjectural, or biased inferences is
averted by the explicit requirement of firsthand knowledge,
by implicit judicial discretion under the rule to exclude
opinions for lack of "helpfulness," and by express judicial
discretion under Rule 403 . . . to exclude because of the
danger of prejudice, confusion, or misleading the jury. The
adversary system itself provides still another safeguard,
allowing detailed cross-examination on the factual bases of
such opinions.
(Emphasis added.)
6
HRE Rule 701 was adopted in 1980. Since then, FRE Rule 701 was
amended in 1987, 2000, and 2011. For purposes of the issue in this case, the
Hawai#i and Federal versions of Rule 701 are materially similar.
FRE Rule 701 now reads:
If a witness is not testifying as an expert, testimony in
the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony
or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
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Because HRE Rule 701 is materially similar to FRE Rule
701, case law interpreting the federal rule is persuasive
authority in interpreting HRE Rule 701. See State v. Abrigo, 144
Hawai#i 491, 500 n.14, 445 P.3d 72, 81 n.14 (2019) ("Federal
cases interpreting the [FRE] serve as 'persuasive authority in
interpreting similar provisions of the [HRE].'" (second
alteration in original) (citation omitted)).
Gabriel cites United States v. LaPierre, 998 F.2d 1460
(9th Cir. 1993), where the Ninth Circuit Court of Appeals (Ninth
Circuit) held that the district court had improperly admitted
identification testimony of a police officer because of the
testimony's "dubious value."
998 F.2d at 1465. The Ninth
Circuit explained, however:
[W]e have held that while lay opinion testimony of this sort
is sometimes permissible, "the use of lay opinion
identification by policemen or parole officers is not to be
encouraged, and should be used only if no other adequate
identification testimony is available to the prosecution."
United States v. Butcher, 557 F.2d 666, 670 (9th Cir.1977).
Our cases upholding the use of testimony of this type have
been limited to two types. The first type is those in which
the witness has had substantial and sustained contact with
the person in the photograph. United States v. Langford,
802 F.2d 1176, 1178–79 (9th Cir.1986) (one witness had met
with defendant over 50 times and another had known him most
of his life); United States v. Barrett, 703 F.2d 1076,
1085–86 (9th Cir.1983) (witness was defendant's girlfriend).
The second type is those in which the defendant's appearance
in the photograph is different from his appearance before
the jury and the witness is familiar with the defendant as
he appears in the photograph. Barrett, 703 F.2d at 1086
(defendant had a full beard and mustache at time of the
robbery but was clean-shaven at trial); United States v.
Saniti, 604 F.2d 603, 604–05 (9th Cir.1979) (witnesses knew
defendant well and were familiar with defendant's clothing,
which defendant was wearing in photo but not wearing before
the jury). The common thread binding these two types of
cases is that in both there is reason to believe that the
witness is more likely to identify correctly the person than
is the jury.
Id. In LaPierre, the Ninth Circuit noted there was no evidence
the defendant's appearance at trial was significantly different
than at the time of the alleged offense.
Id. Moreover, the
police officer who testified as to the defendant's identification
did not know the defendant, had never seen the defendant in
person, and the officer's knowledge of the defendant's appearance
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was based entirely on review of photographs and witness
descriptions of the defendant. Id. Thus, the court concluded
the police officer's level of familiarity with the defendant's
appearance fell far short of the requirement of helpfulness under
FRE Rule 701, and thus, whether the person in the surveillance
photographs was the defendant was properly left to the jury.
Id.
As for the element of "helpfulness," the Eighth Circuit
Court of Appeals, like the Ninth Circuit, noted that: "A
witness's opinion concerning the identity of a person depicted in
a surveillance photograph is admissible if there is some basis
for concluding that the witness is more likely to correctly
identify the defendant from the photograph than is the jury."
United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984);
see also United States v. Allen,
787 F.2d 933, 936 (4th Cir.
1986), cert. granted, judgment vacated on other grounds by
479
U.S. 1077 (1987); United States v. Barrett,
703 F.2d 1076, 1086
(9th Cir. 1983); United States v. Borrelli,
621 F.2d 1092, 1095
(10th Cir. 1980), cert. denied,
449 U.S. 956 (1980); United
States v. Brannon,
616 F.2d 413, 417 (9th Cir. 1980), cert.
denied,
447 U.S. 908 (1980). The Tenth Circuit Court of Appeals
noted that "[t]he witness's prior familiarity with the
defendant's appearance is the most critical factor to determine
if such a basis exists." United States v. Contreras,
536 F.3d
1167, 1170 (10th Cir. 2008) (citing Allen,
787 F.2d at 935-36).
The Ninth Circuit, in United States v. Henderson, 68
F.3d 323 (9th Cir. 1995), rejected the defendant's argument that
FRE Rule 701 requires the lay witness to have had "substantial
[and sustained] contact with the defendant[.]"
68 F.3d at 326.
Rather, the Ninth Circuit stated "[i]nstead of any particular
amount of sustained contact, we require a lay witness to have
sufficient contact with the defendant to achieve a level of
familiarity that renders the lay opinion helpful."
Id. (emphasis
added) (citations omitted). The Seventh Circuit Court of Appeals
held it was permissible to allow a witness who had only seen the
defendant once prior to testifying that the defendant was the
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robber in bank surveillance photographs. United States v.
Jackson, 688 F.2d 1121, 1123 n.1, 1125 (7th Cir. 1982). The
Ninth Circuit has held that nine contacts, before and after the
incident, were "sufficient contact with the defendant to achieve
a level of familiarity that renders the lay opinion helpful."
United States v. Payne,
165 F.3d 36,
1998 WL 788872, at *1 (9th
Cir. 1998) (quoting Henderson,
68 F.3d at 326).
Here, in ruling that the lay witness testimony of
Officer Soto and Officer Maekawa was admissible under HRE Rule
701, the Circuit Court noted its reliance on several federal and
state cases that addressed the admissibility of lay witness
testimony identifying defendants in surveillance videos or
photographs.7
Based on the overwhelming authority in other
jurisdictions, we conclude the applicable test is the "totalityof-the-circumstances" approach employed by the Circuit Court and
adopted in other jurisdictions, which analyzes several factors,
including: (1) the witness's familiarity with the defendant; (2)
the witness's familiarity with the defendant's appearance at the
time the surveillance photograph was taken or whether the
defendant was dressed in a manner similar to the individual
depicted; (3) whether the defendant disguised his appearance at
the time of the offense; (4) whether the defendant had altered
his appearance prior to trial; and (5) the degree of clarity of
the surveillance recording and the quality and completeness of
the subject's depiction in the recording. People v. Thompson, 49
N.E.3d 393, 403-04 (Ill. 2016), as modified on denial of reh'g
(Mar. 28, 2016) (citations omitted). The Thompson court
explained:
7
At the HRE 104 hearing, the Circuit Court referenced various federal
cases and cases from other jurisdictions, including: United States v. Dixon,
413 F.3d 540, 545-46 (6th Cir. 2005); Henderson,
68 F.3d at 326; Allen,
787
F.2d at 935-37; Farnsworth,
729 F.2d at 1160-62; People v. Thompson,
49 N.E.3d
393, 403-06 (Ill. 2016), as modified on denial of reh'g (Mar. 28, 2016);
People v. Leon,
352 P.3d 289, 312–13 (Cal. 2015).
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The existence of one or more of these factors indicates
there is some basis for concluding that the witness is more
likely to correctly identify the defendant from the
photograph than is the jury. Moreover, it has often been
held that the extent of a witness's opportunity to observe
the defendant goes to the weight to be given the testimony,
not its admissibility.
Id. at 405 (citations and internal quotation marks omitted). The
Thompson court further recognized:
[T]estimony by those who knew defendants over a period of
time and in variety [sic] of circumstances offers to the
jury a perspective it could not acquire in its limited
exposure to defendants. Human features develop in the
mind's eye over time. These witnesses had interacted with
defendants in a way the jury could not, and in natural
settings that gave them a greater appreciation of
defendants' normal appearance. Thus, their testimony
provided the jury with the opinion of those whose exposure
was not limited to three days in a sterile courtroom
setting.
Id. at 404 (other citations omitted) (quoting Allen,
787 F.2d at
936).
Here, at the Rule 104 Hearing, testimony by Officer
Soto and Officer Maekawa addressed the first and most critical
factor — their general level of familiarity or sufficient
contacts with Gabriel. Officer Soto testified that he identified
Gabriel in November 2018 from a video and a photograph provided
by Detective Samuel Delovio (Detective Delovio). Prior to the
positive identification, Officer Soto had encountered Gabriel at
a minimum of five stops, but had never arrested him, and the most
recent interaction occurred within a few months before the
November 2018 burglary. Officer Soto testified that these
interactions were friendly, lasted about fifteen minutes, and
from about five to ten feet away. Officer Soto testified that
Gabriel, Robello-Passi, and Malgana usually hang out with each
other because they are friends, but he had never stopped all of
them at once. Officer Soto testified that once he identified the
individuals in the photograph in this case, he made a follow-up
report, which required that he be sure of the identification.
From the ten-second surveillance video, Officer Soto testified
that he was able to identify Gabriel and the co-Defendants "based
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on their mannerisms, their facial features, and their general
appearance[.]"
In addition, the Circuit Court requested that the State
elicit testimony as to the identification of Robello-Passi and
Malgana, as their identification would be made through Officer
Soto. Accordingly, the State elicited testimony from Officer
Soto that he had over twenty interactions with Robello-Passi "at
her home, game rooms, hotspots, and [Gabriel's girlfriend's]
house," and had arrested Robello-Passi for a warrant. These
interactions lasted between thirty to forty-five minutes and were
mostly friendly. As for Malgana, Officer Soto testified that
prior to viewing the photograph in this case he had interacted
with Malgana over ten times, but made no arrests. Each
interaction lasted around twenty minutes. Officer Soto testified
that he last saw Robello-Passi and Malgana within a couple of
months of the positive identification in November 2018.
Officer Maekawa testified he received the surveillance
video through Detective Delovio. Like Officer Soto, Officer
Maekawa testified that he had to be sure of his identification in
notifying Detective Delovio of the positive identification made
through the surveillance video. Prior to identifying the co-Defendants, Officer Maekawa had seen Robello-Passi in November
2018, and Gabriel and Malgana in October 2018.
Officer Maekawa testified that he had never encountered
all three co-Defendants together but from his experience he knew
they were friends. Also based on numerous prior occasions,
Officer Maekawa testified that his identification of the co-Defendants was "based off of their--their facial features and
just overall appearance, their mannerisms, the way they--they
moved in the--the surveillance video." Officer Maekawa testified
that he met Gabriel in 2016 at a homeless camp that Gabriel
frequented, and since then they built "a bit of a rapport where
we would see each other here and there on the street and just
kind of say what's up to each other. . . . I wouldn't say they
were all through official capacities. Some of them were through
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arrests, but it was also times that I would just see [Gabriel]
and kind of say hi."
Officer Maekawa testified that he could identify
Gabriel through his "mannerisms":
Just meaning like the way they carry themselves,
I guess, the way they walk, the way their arms swing,
types of things like that. That's kind of what we do
for our job, is to kind of pick up on things like
that. Everyone has a kind of distinct way of walking,
way of moving about, and that's what I meant by
mannerisms. . . . I--I would describe it as swagger,
like just the way, I guess, he kind of moves about.
And not only in this--this specific incident but the
way he kind of walks and--and carries himself is with
a bit of confidence, I guess you could say. . . . I
would describe it as confident, comfortable. . . .
[L]ike I explained, from a distance, I could easily
say in past encounters like, eh, that's [Gabriel]
right there based off of his mannerisms.
Similarly, as for the second factor, the witness's
familiarity with the defendant's appearance at the time the
surveillance photograph was taken or whether the defendant was
dressed in a manner similar to the individual depicted, the
Circuit Court was satisfied that Officer Soto and Officer Maekawa
had sufficient contact with Gabriel in close temporal proximity
to the November 2018 burglary. The Rule 104 Hearing testimony
supports this factor. There was no implication and no testimony
about Gabriel's attire, and likewise, no implication about
whether Gabriel disguised his appearance at the time of the
offense (third factor), or whether Gabriel had altered his
appearance prior to trial (fourth factor).
As to the fifth factor, the degree of clarity of the
surveillance recording and the quality and completeness of the
subject's depiction in the recording, the Circuit Court reviewed
the short surveillance video clip beforehand and concluded:
[I]t's not necessarily grainy. It is high-def.
But what is depicted is it is hard--or I think
it's more in the lines of an obscuring of the
person depicted in the video, if it is indeed
Mr. Gabriel, to these witnesses. But it's more
obscured than, say, grainy. And that does mean,
in my view, that there is a helpful aspect to
the testimony.
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(Emphases added.) While a witness need not have specialized
knowledge of a defendant's appearance that is unavailable to a
jury, Henderson, 68 F.3d at 326, "such knowledge makes an
identification particularly valuable." United States v.
Henderson,
241 F.3d 638, 651 (9th Cir. 2000), as amended (Mar. 5,
2001) (citing Henderson,
68 F.3d at 326) (other citation
omitted).
Given the testimony elicited in the Rule 104 Hearing
and the Circuit Court's analysis of the totality of the
circumstances pertaining to the police officers' sufficient
contact and subsequent positive identification of Gabriel through
a surveillance video and photograph, the Circuit Court did not
err in admitting the officers' lay opinions as helpful to the
jury under HRE Rule 701.
B. The Circuit Court did not abuse its discretion in
allowing the testimony of the police officers under HRE
Rule 403.
In his second assertion of error, Gabriel challenges
the Circuit Court's ruling that the police officers'
identification testimony was admissible under HRE Rule 403
balancing. Gabriel contends the Circuit Court abused its
discretion because Officer Soto and Officer Maekawa "testifying
as police officers who investigate crimes and identify suspects
will reasonably persuade the jury to favor their testimony[,]"
making their testimonies unfairly prejudicial. We conclude the
Circuit Court did not abuse its discretion in its HRE Rule 403
analysis.
"A trial court's balancing of the probative value of
relevant evidence against the prejudicial effect of such evidence
under HRE Rule 403 is reviewed for an abuse of discretion."
State v. Pasene, 144 Hawai#i 339, 362, 439 P.3d 864, 887 (2019)
(citing State v. Klafta,
73 Haw. 109, 115,
831 P.2d 512, 516
(1992)).
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HRE Rule 403 provides:
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.
In Henderson, the Ninth Circuit Court rejected the
defendant's argument that the testimony of a detective familiar
with him should have been excluded under FRE Rule 403,8 noting:
Although there is a danger of unfair prejudice
whenever an officer identifies a defendant
because "[the defendant is] presented as a
person subject to a certain degree of police
scrutiny," [United States v. Butcher, 557 F.2d
666, 669 (9th Cir. 1977)], there is no per se
rule against such testimony. See Henderson, 68
F.3d at 327. Rather, a court should consider
"the interrelationship of lay identifications by
police officers, other identification evidence,
and the probative value requirement of Federal
Rule of Evidence 403." Id. "[I]f the only
identification evidence is the officer's lay
opinion testimony ... a district court will not
abuse its discretion if it determines the
probative value of the evidence outweighs its
prejudicial effect." Id.
Henderson,
241 F.3d at 651 (some alternation in original)
(emphases added).
In Thompson, the defendant argued there would be
prejudice by allowing identification testimony from law
enforcement officers because a complete and uninhibited
cross-examination regarding the witness's familiarity is not
possible since questions could reveal information about the
defendant's criminal past and unfairly cause the jury to focus on
that. 49 N.E.3d at 406. The defendant thus argued law
enforcement officers should not be allowed to offer lay opinion
identification testimony.
Id. The Supreme Court of Illinois
rejected this argument. Instead, it acknowledged the
"precautionary procedures" approved by the Fourth Circuit Court
of Appeals in Allen, 787 F.2d at 937–38, and held:
8
FRE Rule 403 and HRE Rule 403 are materially similar.
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when the State seeks to introduce lay opinion identification
testimony from a law enforcement officer, the circuit court
should afford the defendant an opportunity to examine the
officer outside the presence of the jury. This will provide
the defendant with an opportunity to explore the level of
the witness's familiarity as well as any bias or prejudice.
Moreover, it will allow the circuit court to render a more
informed decision as to whether the probative value of the
testimony is substantially outweighed by the danger of
unfair prejudice. Although a witness may identify himself
as a law enforcement officer, his testimony involving his
acquaintance with the defendant should consist only of how
long he knew the defendant and how frequently he saw him or
her. Moreover, to lessen any concerns regarding invading
the province of the jury or usurping its function, the
circuit court should properly instruct the jury, before the
testimony and in the final charge to the jury, that it need
not give any weight at all to such testimony and also that
the jury is not to draw any adverse inference from the fact
the witness is a law enforcement officer if that fact is
disclosed.
Thompson, 49 N.E.3d at 407 (emphases added) (citing Henderson,
68
F.3d at 328 (approving a cautionary instruction that stated
officer's identification "was simply an opinion and if it did
'not assist you, then you need not give it any weight at all" and
further instruction that jury "should not draw any adverse
inference from the fact [the identifying witness] is a police
officer.").
Here, the only identification evidence was Officer
Soto's and Officer Maekawa's lay opinion testimony. The Circuit
Court further concluded, after an HRE Rule 403 balancing
analysis, that the probative value of this testimony was not
substantially outweighed by the danger of unfair prejudice. In
its analysis, the Circuit Court addressed whether the evidence
would be cumulative, stating:
I don't believe that if Ms. Robello-Passi[9] testifies, that
would preclude Mr. Soto or Mr. Maekawa from testifying. The
State's able to proffer as much evidence as it feels is
sufficient to prove a case. It does have the burden of
proof. The defense might engage in a vigorous
cross-examination of Ms. Robello-Passi which would undermine
her testimony and, therefore, making the testimony of
officers Soto and Maekawa more critical. But even if the
defense didn't undermine Robello-Passi's credibility, the
State is permitted to satisfy its burden of proof through
this testimony. Now, I certainly wouldn't allow six
9
The State called Robello-Passi as a witness in Gabriel's trial, but
Robello-Passi asserted her right not to testify.
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officers to come in. But two officers, in my view, is
reasonable and is not cumulative.
In addressing whether the probative value of the police officers'
testimony is substantially outweighed by the danger of unfair
prejudice, the Circuit Court reasoned:
I do feel that the prejudice [sic] is not
substantially outweighed also because of Soto's
contacts really being not contacts in the sense of
we've arrested this guy and he's in the interrogation
room with us. In fact, he said he never did arrest
him. It was just sort of in public areas.
Now, Maekawa, on the other hand, did say he
arrested Mr. Gabriel one time. And I'm not going to
permit any testimony about the arrest. You can talk
about interactions. I want you to use the phrases
interactions or contacts. Any other term is liable to
perhaps result in unfair prejudice. I'm not saying it
would, but that's how we got to keep it. So as far as
the parameters of the testimony of these witnesses,
we'll refer to it as interactions, not any arrests.
Keep it to the -- sort of the number of times, the
duration of the contact with the defendants, and keep
it at that.
I am going to instruct the jury so that it's
crystal clear, . . . I'm open to giving an instruction
that the jury can't draw any adverse inferences from
the contacts with the law enforcement. I think I'm
going to give it, and I'll entertain any suggestion
the defense might have as to any limiting instruction
I would give, but I think it would be warranted.
Defense made an assertion that if the evidence
is permitted that it might thwart its ability to fully
cross-examine the officers. I'm not thwarting you at
all. I think if you look at the Van Arsdall[10] case –
that's a U.S. Supreme Court case on the Sixth
Amendment and the right to confrontation -- is that as
long as the defense has the right to confront the
defense [sic], it's not foreclosed from establishing
any bias or prejudice through cross-examination. So
you can cross them as much as you want on these
issues. Your defense is not foreclosed in any way in
cross-examining the witnesses as to their basis of
their lay opinion testimony.
So for all those reasons, the officers'
testimony will be permitted.
I do want to caution the prosecution. When you're
talking about interactions between Gabriel, Malgana,
10
Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986) ("[E]xposure of
a witness' motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.") (citation omitted).
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Robello-Passi, again, similar to the other point, we want to
stay away from arrests or any type of criminality.
(Emphases added.) During the Rule 104 Hearing and subsequent
trial, the precautionary procedures outlined in Thompson were
observed. The police officers' testimony was confined to
interactions only, not arrests. The details of these
interactions included the number of times with each defendant,
their duration, and when discussing Gabriel, the police officers'
distance from Gabriel. Moreover, the Circuit Court issued two
cautionary instructions regarding each of the police officers'
testimony about previous contacts with Gabriel and the co-Defendants, in accordance with HRE Rule 105.11 The jury was told
before each police officer's testimony and in the final charge
not to draw an adverse inference from the fact that the
identification was made by police officers.
Given this record and the Circuit Court's HRE Rule 403
balancing analysis, we conclude the Circuit Court did not abuse
its discretion in admitting the police officers' identification
evidence under HRE Rule 403.
C. The Circuit Court did not err in failing to provide the
jury with an eyewitness identification instruction.
In his third assertion of error, Gabriel contends the
Circuit Court erred in not instructing the jury, sua sponte, on
eyewitness identification, thus affecting Gabriel's substantial
rights to a fair trial. Gabriel also contends that because there
was no eyewitness to the burglary, the Circuit Court erred in
failing to exercise its discretion to provide the jury a
"specific eyewitness instruction" under the circumstances of
"this particular case."
11
HRE Rule 105 provides:
When evidence which is admissible as to one party or
for one purpose but not admissible as to another party
or for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper
scope and instruct the jury accordingly.
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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. Error is
not to be viewed in isolation and considered
purely in the abstract. It must be examined in
the light of the entire proceedings and given
the effect which the whole record shows it to be
entitled. In that context, the real question
becomes whether there is a reasonable
possibility that error might have contributed to
conviction. If there is such a reasonable
possibility in a criminal case, then the error
is not harmless beyond a reasonable doubt, and
the judgment of conviction on which it may have
been based must be set aside.
Stanley v. State, 148 Hawai#i 489, 500–01, 479 P.3d 107, 118–19
(2021) (citation omitted).
Gabriel relies on the holding in State v. Cabagbag, 127
Hawai#i 302, 277 P.3d 1027 (2012), that "in criminal cases, the
circuit courts must 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,
. . . [however,] a circuit court may, in the exercise of its
discretion, give the instruction if it believes the instruction
is otherwise warranted in a particular case[.]" Id. at 304,
277
P.3d at 1029 (emphases added) (footnote omitted).
In Cabagbag, the Hawai#i Supreme Court considered the
problems of eyewitness identification testimony and acknowledged
research findings of variables that affect the accuracy and
reliability of eyewitness identification, such as "passage of
time, witness stress, duration of exposure, distance, 'weapon
focus' (visual attention eyewitnesses give to a perpetrator's
weapon during crime, and cross-race bias (eyewitness more
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accurate at identifying persons of their own race)." Id. at 310-
11,
277 P.3d at 1035-36 (footnotes omitted). The Hawai#i Supreme
Court reasoned that "[w]ithout appropriate instructions from the
court, the jury may be left without sufficient guidance on how to
assess critical testimony, sometimes the only testimony, that
ties a defendant to an offense." Id. at 313,
277 P.3d at 1038.
Gabriel's reliance on Cabagbag is misplaced. Although
the identification of Gabriel as one of the burglars was a
central issue in this case, Gabriel did not request an eyewitness
identification instruction during the settling of instructions.
Accordingly, the Circuit Court was not required to issue an
eyewitness identification instruction and committed no error.
Moreover, there were no eyewitnesses to the burglary and the
police officers did not testify as eyewitnesses to the burglary,
rendering an eyewitness identification instruction inconsistent
with the evidence in the case. As noted in Cabagbag, the
reliability of eyewitness testimony depended, in part, on "the
opportunity . . . to view the criminal at the time of the
crime[.]" Cabagbag, 127 Hawai#i at 309, 277 P.3d at 1034
(citation omitted). The circumstances in this case are
different.
We recognize, however, that the Hawai#i Supreme Court
has emphasized the requirement that trial courts "issue a legally
correct limiting instruction," derived from "the trial courts'
. . . duty and ultimate responsibility to insure that juries are
properly instructed on issues of criminal liability." State v.
Gallagher, 146 Hawai#i 462, 475, 463 P.3d 1119, 1132 (2020)
(quoting State v. Adviento, 132 Hawai#i 123, 137,
319 P.3d 1131,
1145 (2014)); see also HRE Rule 105. Here, the Circuit Court
fulfilled this duty and issued nearly identical limiting
instructions during the direct examinations of Officer Maekawa
and Officer Soto, stating:
You have heard evidence that the defendant, Bradley
Gabriel, at another time may have had a prior contact
or interaction with a Honolulu Police Department
officer. The evidence, if believed by you, may be
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considered only on the issue of the defendant's
identity as the person who committed the offense
charged. Do not consider the evidence for any other
purpose. You must not use this evidence to conclude
because the defendant, at another time, may have had
prior interactions or contacts with the Honolulu
Police Department officer that he is a person of bad
character and, therefore, must have committed the
offense charged in this case. You must not draw any
adverse inference against Mr. Gabriel from the fact
that the witness is a law enforcement officer. In
considering the evidence for the limited purpose for
which it has been received or will be received, you
must weigh it in the same manner as you would all
other evidence in the case and consider it along with
all other evidence in this case. If believed, you may
give the evidence such weight as you feel it deserves
but only for the limited purpose that I described to
you.
(Emphases added.) In addition, the Circuit Court's final
instructions reminded the jury about the limiting instructions
the court had previously given,12 and included an instruction
pertaining to the credibility of witnesses.13
12
Court's Instruction No. 1.5, Direct and Circumstantial Evidence;
Weight of the Evidence states, in pertinent part:
During the course of the trial, I instructed you that
certain evidence was received for a particular and limited
purpose. Therefore, you must consider that evidence only
for that limited purpose and not for any other purpose.
13
Court's Instruction No. 1.6, Credibility of Witnesses, provides, in
part:
You are the exclusive judges of the credibility, or
"believability," of each witness and the weight and value to
be given to the witness' testimony.
In evaluating the credibility, accuracy, weight,
value, and effect of a witness' testimony, you may want to
consider such questions as:
1. What was the general reasonableness,
probability, or improbability of the witness' testimony in
light of all the evidence?
2. What was the extent to which the witness'
testimony was supported or contradicted by other evidence?
(continued...)
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Considering the instructions as a whole, we conclude
the Circuit Court did not commit plain error by not giving a
specific jury instruction on eyewitness identification.
(...continued)
3. Did the witness testify in a candid, frank,
upfront, forthright or open way or testify in a way lacking
these qualities.
4. What was the witness' demeanor and manner of
testifying?
5. Was the witness' testimony uncertain, confused,
or evasive?
6. Did the witness clearly see or hear things about
which she or he testified?
7. Did the witness have a good memory of the things
about which she or he testified?
8. Was the witness' ability to see, hear, remember
or describe the matters about which she or he testified
affected by youth, old age, any physical, mental or
intellectual deficiency, or intoxication?
9. What was the witness' relation, if any, to a
party or other witness?
10. What was the witness' bias, if any was shown?
11. What was the witness' means and opportunity of
acquiring information?
12. What was the extent to which the witness made
contradictory statements, whether in trial or at other
times?
13. Did any inconsistencies or discrepancies in the
testimony of the witness or between the testimony of
different witnesses concern matters of importance, or only
matters of unimportant details, and did they result from
innocent mistake, mis-recollection or lapse of memory, or
from an intentional or deliberate falsehood?
These questions are not placed in any order of
importance and are not meant to be all-inclusive with regard
to your evaluation of the credibility of a witness and the
weight and value to be given to the witness' testimony. You
should consider all circumstances and factors surrounding
the witness and bearing upon her or his credibility.
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III. Conclusion
Based on the foregoing, the "Judgment of Conviction and
Sentence; Notice of Entry," entered by the Circuit Court of the
First Circuit on July 30, 2019, is affirmed.
DATED: Honolulu, Hawai#i, April 29, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Randal I. Shintani,
for Defendant-Appellant /s/ Keith K. Hiraoka
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee Associate Judge
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