NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-FEB-2023
07:57 AM
Dkt. 57 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
BRYAN MEYER, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee,
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-16-03836; 1SD191000004)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Petitioner-Appellant Bryan Meyer (Meyer) appeals from
the Findings of Fact (FOFs), Conclusions of Law (COLs), and Order
Denying [Hawai#i Rules of Penal Procedure (HRPP)] Rule 40
Petition for Post Conviction Relief (Order Denying Rule 40
Petition), filed January 3, 2020 by the District Court of the
First Circuit (District Court).1
On appeal, Meyer contends the District Court erred in
concluding: (1) that his due process rights were not violated by
Respondent-Appellee State of Hawai#i's (State) failure to produce
information favorable to him in violation of Brady v. Maryland,
373 U.S. 83 (1963),2 and (2) that he was not denied effective
assistance of counsel. Meyer requests that the Order Denying
1
The Honorable Clarence A. Pacarro presided in the Rule 40 post-conviction proceedings.
2
In Brady, the United States Supreme Court held that under the due
process clause, the prosecution was required to disclose evidence favorable to
the accused where the evidence is material to guilt or to punishment, and that
failure to disclose would deprive the accused of a fair trial. 373 U.S. at
87-88.
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Rule 40 Petition and his conviction be vacated, and this matter
be remanded for a new trial.
We hold that the State's failure to disclose the report
at issue, which consisted of material impeachment evidence under
Brady, violated due process, and the Rule 40 Petition should have
been granted. We thus vacate and remand.
I. BACKGROUND
The pertinent background, some of which is derived from
the uncontested FOFs3 in the Order Denying Rule 40 Petition, is
as follows:
OVUII trial
On November 1, 2016, Meyer was charged, via Complaint,
with Operating a Vehicle Under the Influence of an Intoxicant
(OVUII) in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1). FOFs 1-2. At trial,4 two Honolulu Police
Department (HPD) officers testified as follows: Officer Russell
Maeshiro (Officer Maeshiro) testified as to observing Meyer veer
out of lane three times and indicia of alcohol consumption;
Officer Lordy Cullen (Officer Cullen) testified as to indicia of
Meyer's alcohol consumption, to the instruction and demonstration
of the standardized field sobriety test (SFST), and as to Meyer's
performance on the SFST. FOF 4.5 Meyer testified. FOF 5.
After closing arguments, the trial court made the
following findings:6
THE COURT: . . . . So as has already been discussed at
length, there was almost no testimony inconsistent between
3
Unchallenged FOFs are binding on the parties and on appeal.
State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435 (2019) (quoting
Kelly v. 1250 Oceanside Partners, 111 Hawai#i 205, 227,
140 P.3d 985, 1007
(2006)).
4
The Honorable James H. Ashford presided over the underlying OVUII
proceedings. For clarity, the proceedings before Judge Ashford are referred
to as "trial court," while the proceedings before Judge Pacarro are referred
to as "District Court."
5
The Order Denying Rule 40 Petition contains typographical error
consisting of two separate FOFs numbered as "4."
6
The transcript of the March 16, 2017 trial was supplied as an
exhibit to Meyer's Rule 40 Petition.
2
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Officer Maeshiro and defendant. So I do take as credible
and accurate everything that Officer Maeshiro testified to.
. . . .
So that takes us away from Maeshiro's testimony into
–- into Officer Cullen and the defendant's testimony
regarding the field sobriety test. . . .
. . . .
Candidly I'm not saying that Mr. Meyer is lying, but I'm
very concerned about his ability to accurately perceive and
accurately recall what transpired.
So on balance I accept Officer Cullen's testimony. And to
the extent it –- defendant's testimony is inconsistent on these
points, I reject the defendant's testimony.
. . . .
So, Mr. Meyer, I think you understand this, but to be
perfectly clear, you're convicted. I buy the State's–- I
accept as true what the officers testified to.
On March 16, 2017, Meyer was convicted as charged. FOF 6.
OVUII appeal
Meyer appealed his judgment of conviction and sentence
to this court on May 16, 2017. FOF 7. On February 19, 2019, we
affirmed the judgment "without prejudice to any subsequent
petition under [HRPP] Rule 40, to the District Court addressing
the ineffective assistance of counsel claim raised herein."
State v. Meyer, No. CAAP-XX-XXXXXXX, 2019 WL 181144, at *5
(App. Jan. 14, 2019) (SDO).
HRPP Rule 40
On May 16, 2019, Meyer filed a Rule 40 Petition for
Post Conviction Relief (Rule 40 Petition) with the District
Court. In his Rule 40 Petition, Meyer argued that the State was
in possession of a seventeen-page report summarizing an internal
investigation of Officer Cullen (Cullen Report)7 for Unauthorized
Computer Access in the First Degree (Unauthorized Computer Access
7
The Cullen Report detailed allegations that Officer Cullen used
another officer's computer login credentials to request special duty
assignments. The Honolulu Department of the Prosecuting Attorney declined to
prosecute the case.
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First)8 that occurred in 2010, and that the State failed to
disclose the report to Meyer's trial counsel9 during the pendency
of Meyer's OVUII trial. Meyer argued that the State's
withholding of the report was a violation of the rule in Brady,10
as "this information would have been favorable to [Meyer] giving
[Meyer] the opportunity to cross examine [Officer] Cullen on the
favorable materials pursuant to Hawai#i Rules of Evidence [(HRE)]
Rule 608(b) . . . ."11 Meyer's Rule 40 Petition also included an
8
A person commits Unauthorized Computer Access First under HRS §
708-895.5 (2001) if:
the person knowingly accesses a computer, computer system,
or computer network without authorization and thereby
obtains information, and:
(a) The offense was committed for the
purpose of commercial or private financial
gain;
(b) The offense was committed in
furtherance of any other crime;
(c) The value of the information obtained
exceeds $5,000; or
(d) The information has been determined by
statute or rule of court to require
protection against unauthorized
disclosure.
(2) Unauthorized computer access in the first degree is a
class B felony.
9
Meyer was represented by new counsel (Appellate Counsel) for the
appeal in CAAP-XX-XXXXXXX, during the Rule 40 proceeding, and in the instant
appeal.
10
Hawai#i has incorporated the Brady rule into Hawai#i "due process
jurisprudence": "due process requires that the prosecution disclose evidence
favorable to the accused that, if suppressed, would deprive the defendant of a
fair trial." Birano v. State, 143 Hawai#i 163, 181, 426 P.3d 387, 405 (2018)
(internal quotation marks omitted) (quoting State v. Matafeo,
71 Haw. 183,
185-86,
787 P.2d 671, 672 (1990)).
11
HRE Rule 608(b) permits the credibility of witnesses to be
attacked by specific instances of conduct probative of untruthfulness. The
rule provides in pertinent part:
(b) Specific instances of conduct. Specific instances of
the conduct of a witness, for the purpose of attacking the
witness' credibility, if probative of untruthfulness, may be
inquired into on cross-examination of the witness and, in
the discretion of the court, may be proved by extrinsic
evidence. . . .
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ineffective assistance of counsel claim. According to Meyer,
upon the filing of the Rule 40 Petition, the State had not yet
turned over the Cullen Report to Meyer's Appellate Counsel.12
Following a subpoena duces tecum filed by Meyer, the
State submitted to the District Court the records regarding
Officer Cullen for in camera review. The District Court held a
hearing on the Rule 40 Petition on November 18, 2019. At the
hearing, the District Court asked the State whether the Cullen
Report was turned over to Meyer because it was potentially Brady
material:
THE COURT: I did have a question. I forgot
to bring this up since [Appellate Counsel] made this
representation that after this, those 17 pages were
disclosed based on this prosecutor's understanding they
were Brady material. Do you have a position on that?
Were they turned over because your office considers that
Brady material?
[PROSECUTOR]: So I -- I'll note that the statute
of limitations didn't expire for the particular
investigate --
THE COURT: And I saw that --
[PROSECUTOR]: -- (indiscernible) the facts --
THE COURT: -- in your argument but.
[PROSECUTOR]: Right, up until 2018. And so I
think there, you know, once we're disclosing it, there's
less of a question about what -- I think before 2018, it's
quite clear that it may not have even come in, and there's
a -- there's a serious barrier to admissibility. And the
test that our court uses in terms of evaluating Brady
material is that it's got to be at least admissible
because it's got to be relevant. So if you don't have
that baseline of admissibility, because the defendant
would be able to have an absolute privilege, I think that
changes in 2018, becomes maybe a question. As I said,
it's never really been litigated whether or not this
particular charge is, and I think just to be safe, we're
releasing it. But I think prior to 2018, there's a strong
argument that with the statute of limitations still open,
that material is not going to be admissible because the
defendant could just take a Fifth Amendment privilege.
THE COURT: But --
12
In his Declaration included with the Rule 40 Petition, Meyer's
Appellate Counsel stated that he received the Cullen Report from the State as
part of initial discovery disclosures during Appellate Counsel's
representation of a different client in a separate, unrelated criminal
proceeding.
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[APPELLATE COUNSEL]: May I --
THE COURT: -- but you're not saying you
accept this Brady material? You're just saying as a
matter of caution, you're turning it over because the
statute has run?
[PROSECUTOR]: No, no, no, because the statute
has run.
THE COURT: That's why you're turning it
over. That's --
[PROSECUTOR]: Turning it over.
THE COURT: Yeah.
[PROSECUTOR]: And in this case, yeah, as a
matter of caution because it hasn't been litigated yet.
It is not clear from the above exchange whether the State agreed
that the Cullen Report was Brady material that should have been
disclosed.
The District Court issued its Order Denying Rule 40
Petition on January 3, 2020, from which Meyer timely appealed.
II. STANDARDS OF REVIEW
"We consider a court's conclusions of law regarding a
petition for post-conviction relief de novo[.]" Grindling v.
State, 144 Hawai#i 444, 449, 445 P.3d 25, 30 (2019) (citing
Fragiao v. State, 95 Hawai#i 9, 15,
18 P.3d 871, 877 (2001)).
"A court's findings of fact in connection with a petition for
post-conviction relief are reviewable under the clearly erroneous
standard."
Id. (citing Wilton v. State, 116 Hawai#i 106, 110
n.7,
170 P.3d 357, 361 n.7 (2007)).
III. DISCUSSION
Meyer contends that his due process rights were
violated by the failure of the State to disclose the Cullen
Report before his OVUII trial. Meyer argues that the District
Court erred in: (1) its COL 5, and that the District Court should
have found that Meyer was "entitled to discover the past instance
which may permit . . . Meyer to develop the bias, interest, or
motive as well as reputation for truthfulness on cross-examination"; (2) its COL 4, and that the District Court should
have found that the State should have disclosed the Cullen Report
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even if the materials would have been deemed inadmissible for
purposes of impeachment; and (3) erred in its COL 2, which
applies an incorrect "'harmless error' type analysis."13
The Cullen Report contained admissible, material
impeachment evidence
Meyer argues that the Cullen Report should have at
least been admissible at trial under HRE Rule 608(b).14 This
argument has merit.
13
The challenged COLs state:
2. The Hawai#i State Constitution requires the
proponent of a Brady claim to show that "the suppressed
evidence would create a reasonable doubt about the
Appellant's guilt that would not otherwise exist."
State v. Jenkins, 93 Hawai#i 87, 104, 997 P.2d 13, 30 (2000);
State v. Fukusaku, 85 Hawai#i 462, 479, 946 P.2d 32, 49 (1997).
. . . .
4. The subpoenaed documents do not reflect that the
alleged conduct of Officer Cullen affected his credibility
as a witness in Petitioner's unrelated OVUII trial. See
State v. Pacheco, 96 Hawai#i 83, 99-l00, 26 P.3d 572, 588-89
(2001) (declining to treat shoplifting from a church as
conduct relevant to or probative of defendant's veracity as
a witness); State v. Pudiquet, 82 Hawai#i 419, 427, 922 P.2d
1032, 1040 (declining to admit a nine-year-old theft
conviction as too collateral, too remote, and irrelevant to
dishonesty).
5. The subpoenaed documents do not demonstrate bias,
self-interest, or any other factor that would undermine the
reliability of Officer Cullen's testimony against
Petitioner. The documents do not show Officer Cullen had any
personal stake in Petitioner's OVUII trial or that the
declined case against him affected the reliability of his
testimony. Cf. Birano v. State, 143 Hawai#i 163, l9l, 426
P.3d 387, 415 (2018) (finding relevant to a witness's
credibility the possibility of a favorable sentencing
recommendation from the State). See also Boyd v. State, No.
CAAP-XX-XXXXXXX, 2019 WL 3082992, at *5 (App. July 15, 2019)
(SDO) (declining to treat four-year-old prosecution against
officer for shoplifting as probative of his SFST testimony
in unrelated OVUII trial), cert. denied, SCWC-XX-XXXXXXX,
2019 WL 6492519 (Dec. 3, 2019).
14
Meyer points to the State's statement at the Rule 40 hearing that
the Cullen Report was not released at the time of Meyer's OVUII trial because
the statute of limitations on the alleged claim against Officer Cullen had not
yet expired. Meyer argues that even if Officer Cullen pleaded the Fifth
Amendment while testifying during trial, the evidence "should be held
admissible at least until the witness denied the conduct." The State did not
address this argument in its Answering Brief.
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Under HRE Rule 608(b), the credibility of a witness may
be attacked using "[s]pecific instances of conduct" that are
"probative of untruthfulness." HRE Rule 608(b); see also State
v. Su, 147 Hawai#i 272, 282, 465 P.3d 719, 729 (2020). The types
of conduct deemed admissible under HRE Rule 608(b) are "conduct
regarding lies and falsifications." Su, 147 Hawai#i at 282,
465
P.3d at 729 (citing Addison M. Bowman, Hawaii Rules of Evidence
Manual § 608-2[1][B] at 6-42-43 (2018–2019 ed.)). In Su, the
supreme court clarified that the admissibility of evidence under
HRE Rule 608(b) involves a two-step inquiry:
(1) whether the specific conduct evidence proffered for the
purpose of attacking the witness's credibility is probative
of untruthfulness, and, if so, (2) whether the probative
value of the evidence of the specific conduct 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 pursuant to HRE Rule
403.
Id. at 283, 465 P.3d at 730. "[U]nder the first step, a [nondefendant] witness may generally be cross-examined about specific
instances of conduct probative to credibility, if probative of
untruthfulness."
Id. (footnote omitted). If the witness denies
the conduct during cross-examination, then "the court has
discretion to permit or exclude extrinsic evidence of the
misbehavior" subject to the HRE Rule 403 balancing test. Id. at
284,
465 P.3d at 731.
Here, based on our review of the Cullen Report, the
allegations against the officer contained in the report were
probative of untruthfulness. The evidence qualified for
admissibility for purposes of impeachment under HRE Rule 608(b).
See Birano, 143 Hawai#i at 183 n.35, 426 P.3d at 407 n.35.
A "[v]iolation of the constitutional right to confront
adverse witnesses is subject to the harmless beyond a reasonable
doubt standard." Id. at 190, 426 P.3d at 414 (quoting State v.
Balisbisana, 83 Hawai#i 109, 113-14,
924 P.2d 1215, 1219-20
(1996)). The failure of the State to disclose impeachment
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evidence warrants a new trial if the evidence is material either
to guilt or punishment, and when the reliability of a witness may
be determinative of guilt or innocence. State v. Alkire, 148
Hawai#i 73, 88, 468 P.3d 87, 102 (2020).
Here, Officer Cullen's testimony was material to
Meyer's conviction. The trial court stated, "I buy the State's–-
I accept as true what the officers testified to." The trial
court concluded that the inconsistencies between Meyer's
testimony and Officer Cullen's testimony weighed in favor of
Officer Cullen being more credible. Thus, the failure to
disclose was material and was not harmless beyond a reasonable
doubt where the outcome of Meyer's trial turned on the
credibility of Meyer and Officer Cullen. See Su, 147 Hawai#i at
285, 465 P.3d at 732 (citing State v. Pond, 118 Hawai#i 452, 469,
193 P.3d 368, 385 (2008)); Birano, 143 Hawai#i at 190,
426 P.3d
at 414.
The State had a duty to disclose the Cullen Report
Meyer argues that he did not receive a fair trial
because the Cullen Report was "necessary to bolster his own
credibility over that of Officer Cullen," especially because the
trial court found Officer Cullen's testimony more credible.
Meyer argues that the Cullen Report should have been disclosed to
Meyer during his trial proceedings because the report was
indicative of Officer Cullen's fraudulent conduct; indicative of
Officer Cullen's motive, and would constitute evidence pertaining
to Office Cullen's "truthfulness, veracity, and/or credibility."
Meyer's argument regarding Officer Cullen's credibility has
merit.
"Under Brady, the government must disclose evidence
favorable to the defense 'where the evidence is material either
to guilt or to punishment.'" Alkire, 148 Hawai#i at 88, 468 P.3d
at 102 (brackets omitted) (quoting Kyles v. Whitley,
514 U.S.
419, 432 (1995)). "'Material' evidence includes that pertaining
to witness credibility, as when the 'reliability of a given
witness may well be determinative of guilt or innocence,' the
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nondisclosure of evidence affecting that witness's credibility is
material." Id. at 89, 468 P.3d at 103 (quoting Giglio v. United
States,
405 U.S. 150, 154 (1972)). "[F]avorable evidence is
material, and constitutional error results from its suppression
by the government, if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different."
Id. (internal quotation
marks omitted) (quoting Kyles,
514 U.S. at 433). Impeachment
evidence falls under Brady because impeachment evidence is
"'evidence favorable to an accused' . . . [and] if disclosed and
used effectively, it may make the difference between conviction
and acquittal." U.S. v. Bagley,
473 U.S. 667, 676 (1985)
(citation omitted).
"[C]entral to the protections of due process is the
right to be accorded a meaningful opportunity to present a
complete defense." Birano, 143 Hawai#i at 181, 426 P.3d at 405
(quoting State v. Tetu, 139 Hawai#i 207, 219,
386 P.3d 844, 856
(2016)). Our supreme court recognized that "the prosecution has
a constitutional obligation to disclose evidence that is material
to the guilt or punishment of the defendant." Id. at 182,
426 P.3d at 406 (quoting Matafeo,
71 Haw. at 185,
787 P.2d at
672). "The duty to disclose evidence that is favorable to the
accused includes evidence that may be used to impeach the
government's witnesses by showing bias, self-interest, or other
factors that might undermine the reliability of the witness's
testimony."
Id. (citing Giglio,
405 U.S. at 154). In Birano,
our supreme court recognized that the duty to disclose is
triggered when "the government possesses information that may
have a potential negative impact on a key witness's credibility .
. . ."
Id. at 183,
426 P.3d at 407. The evidence, however, must
be "admissible evidence affecting witness credibility[.]"
Id. at
183 n.35,
426 P.3d at 407 n.35 (explaining that examples of
evidence affecting witness credibility that may trigger the duty
to disclose as including "a witness's ulterior motive for
testifying, a relevant sensory or mental defect, inconsistent
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past statements, or previous acts indicating dishonesty.")
(citing Milke v. Ryan, 711 F.3d 998, 1001 (9th Cir. 2013); United
States v. Kohring,
637 F.3d 895, 907 (9th Cir. 2011)).
Further, "[t]he duty to disclose material impeachment
evidence is compelled not only by due process, but also the
constitutional right to confrontation." Birano, 143 Hawai#i at
183, 426 P.3d at 407. A defendant's right to cross-examination
of the state's witnesses to demonstrate bias or motive is
protected by the sixth amendment of the United States
Constitution and by Article I, section 14 of the Hawai#i
Constitution.
Id.
Discovery obligations for non-felony and criminal
traffic offenses, such as OVUII, are governed by HRPP Rule 16(d),
which requires that, "[u]pon a showing of materiality and if the
request is reasonable, the court in its discretion may require
disclosure as provided for in this Rule 16 in cases other than
those in which the defendant is charged with a felony, but not in
cases involving violations." HRPP Rule 16(d); see also Alkire,
148 Hawai#i at 89, 468 P.3d at 103 (citing State v. Lo, 116
Hawai#i 23, 26,
169 P.3d 975, 978 (2007)). However, "[i]n some
cases . . . due process will require the State to disclose
evidence beyond the disclosures required by the rules of penal
procedure." State v. Texeira, 147 Hawai#i 513, 528 n.24,
465 P.3d 960, 975 n.24 (2020) (citing Tetu, 139 Hawai#i at 214,
386 P.3d at 851 ("[T]he HRPP Rule 16 discovery right does not
purport to set an outer limit on the court's power to ensure a
defendant's constitutional rights.")).
Here, the Cullen Report contained potentially
admissible impeachment material that should have been disclosed
to Meyer by the State. The trial court found Officer Cullen's
testimony to be more credible than Meyer's testimony. The State
was in possession of information that may have had a potential
negative impact on Officer Cullen's credibility. See Birano,
143 Hawai#i at 182, 426 P.3d at 406. The State had a duty to
disclose the credibility evidence pertaining to Officer Cullen to
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allow Meyer the opportunity to present a meaningful defense and
to cross-examine. See id.; Alkire, 148 Hawai#i at 89, 468 P.3d
at 103. The District Court's conclusion in COL 4 that the Cullen
Report did not contain conduct that "affected [the officer's]
credibility as a witness," and thus not subject to disclosure as
Brady material was erroneous. See Grindling, 144 Hawai#i at 449,
445 P.3d at 30. The Rule 40 Petition should have been granted.
In light of the above, we need not address Meyer's
remaining contentions.
IV. CONCLUSION
For the foregoing reasons, we (1) vacate the Findings
of Fact, Conclusions of Law, and Order Denying Rule 40 Petition
for Post Conviction Relief, filed January 3, 2020 by the District
Court of the First Circuit; and (2) remand for entry of an order
granting the Rule 40 Petition filed on May 16, 2019 for the
reasons set forth in this Memorandum Opinion, vacating the
March 16, 2017 Judgment of Conviction and Sentence, and ordering
a new trial.
DATED: Honolulu, Hawai#i, February 23, 2023.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Richard L. Holcomb,
(Holcomb Law, LLLC) /s/ Keith K. Hiraoka
for Petitioner-Appellant Associate Judge
Stephen K. Tsushima, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
for Respondent-Appellee
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