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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-JUN-2020
08:38 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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________________________________________________________________
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,
vs.
KENTARU KRISTOPHER STONE, also known as KENTARO K. STONE,
Petitioner/Defendant-Appellant
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1PC161000543)
JUNE 15, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal arises from a jury trial in the First Circuit
of the Circuit Court (“circuit court”)1 in which Kentaru
Kristopher Stone (“Stone”) was convicted by a jury on the charge
of promoting a dangerous drug in the third degree.
1
The Honorable Jeffrey P. Crabtree presided.
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At around 3:45 a.m. on April 5, 2016, Stone was approached
at Ala Moana Beach Park by Honolulu Police Department (“HPD”)
Officer Douglas Korenic II (“Officer Korenic”). Stone was
seated on a picnic table with various items strewn around him,
including one or more identification cards (“IDs”). Based on
discovery provided by the State of Hawaiʻi (“State”), Officer
Korenic’s testimony was anticipated to be that he approached
Stone for a park closure or rules violation, that Stone would
not provide information regarding his identity, and that Stone
then threw a small “baggie” containing methamphetamine, which
landed on the picnic table.
Based on provided discovery, defense counsel’s theory of
the case during opening statement was that, because the only
found property report related to an iPhone, the other items on
the picnic table shown in photographs belonged to Stone and
included Stone’s ID. Defense counsel theorized that Officer
Korenic’s testimony that he had been unable to ascertain Stone’s
identity would therefore be untruthful. The defense theory was
also that Officer Korenic had searched Stone’s bag and had
strewn Stone’s belongings all over the table, as shown in the
photographic exhibits; that Officer Korenic must have planted
the methamphetamine baggie after rifling through Stone’s bag or
that the methamphetamine baggie was already there but did not
belong to Stone; and that Officer Korenic did not seek a search
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warrant for the bag because, based on his search, he already
knew there was no drug paraphernalia therein.
During trial, however, Officer Korenic, who was the only
witness to Stone’s alleged methamphetamine possession, testified
in cross-examination that in addition to the found property
report regarding the iPhone, he had generated additional found
property reports as to the other miscellaneous items on the
picnic table, including other people’s IDs. He also testified
the IDs and other items on the picnic table did not belong to
Stone.
The circuit court therefore called a mid-trial recess. The
State procured and the defense reviewed additional police
reports referenced in Officer Korenic’s incident report that had
not been produced in discovery. The additional reports
referenced in the incident report were, however, completely
unrelated to Stone’s case. Yet, in his resumed testimony,
Officer Korenic persisted in his testimony that additional found
property reports existed pertaining to Stone's case.
The jury found Stone guilty of promoting a dangerous drug
in the third degree.
Stone moved for a new trial pursuant to Hawaiʻi Rules of
Penal Procedure (“HRPP”) Rule 33 (2012),2 arguing he was deprived
2
HRPP Rule 33 states in relevant part: “A motion for a new trial shall
be made within 10 days after verdict or finding of guilty or within such
(continued. . .)
3
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of a fair trial because he had expected no dispute that the ID
on the picnic table belonged to him. This was because discovery
had not indicated items other than the iPhone belonged to
others. On December 27, 2016, the circuit court denied Stone’s
motion for new trial, sentenced Stone to a five-year term of
imprisonment, and entered its judgment on January 18, 2017.
Stone appealed to the Intermediate Court of Appeals
(“ICA”), arguing that the circuit court erred in denying his
motion for new trial. He asserted he met this court’s four-part
test for a new trial based on newly discovered evidence. See
State v. McNulty, 60 Haw. 259,
588 P.2d 438 (1978), overruled on
other grounds by Raines v. State, 79 Hawaiʻi 219,
900 P.2d 1286
(1995).3 He also asserted he met the ICA's four-part test for a
new trial based on false testimony from a material prosecution
witness. See State v. Teves,
5 Haw. App. 90,
679 P.2d 136
(. . .continued)
further time as the court may fix during the 10-day period. The finding of
guilty may be entered in writing or orally on the record.”
3
In McNulty, in relevant part, this court established a four-part test
for granting motions for new trial based on newly discovered evidence:
A motion for new trial based on newly discovered evidence
will be granted only if all of the following requirements
have been satisfied: (1) the evidence has been discovered
after trial; (2) such evidence could not have been
discovered before or at trial through the exercise of due
diligence; (3) the evidence is material to the issues and
not cumulative or offered solely for purposes of
impeachment; and (4) the evidence is of such a nature as
would probably change the result of a later trial.
60 Haw. at 267-68,
588 P.2d at 445.
4
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(1984).4 Stone also argued his right to a fair trial was
violated.
In its November 27, 2019 summary disposition order, the ICA
rejected Stone’s arguments, ruling the circuit court did not
abuse its discretion in denying the motion for new trial because
Stone failed to satisfy the McNulty and Teves tests. See State
v. Stone, CAAP-XX-XXXXXXX, 2019 WL 6359162 (App. Nov. 27, 2019)
(SDO). The ICA did not address this court’s opinion in Birano
v. State, 143 Hawaiʻi 163, 182,
426 P.3d 387, 406 (2018), which
was issued after Stone’s 2017 reply brief, but before its SDO.
We hold the ICA erred in affirming the circuit court’s
denial of the motion for new trial because Stone satisfied the
Teves test. Because the Teves test governs the circumstances of
this case, we need not and do not address whether Stone
satisfied the McNulty test.
We also hold Stone’s right to a fair trial was violated
because, as the ICA correctly noted, Officer Korenic testified
4
In Teves, the ICA set out a four-part test for granting a new trial
based on a prosecution witness giving false testimony at trial:
We hold that upon a proper and timely motion under Rule 33,
HRPP, a new trial must be granted by the trial court when
it decides that (1) it is reasonably satisfied that the
testimony at trial of a material prosecution witness is
false; (2) defendant and his agents did not discover the
falseness of the testimony until after the trial; (3) the
late discovery is not due to a lack of due diligence by
defendant or his agent; and (4) the false testimony is not
harmless because there is a reasonable possibility that it
contributed to the conviction.
5 Haw. App. at 96,
679 P.2d at 141 (footnote omitted).
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falsely concerning the existence of other found property
reports. As there is a reasonable possibility the false
testimony contributed to Stone’s conviction, however, the ICA
erred in ruling it harmless beyond a reasonable doubt.
Accordingly, we vacate the ICA’s February 5, 2020 judgment
on appeal and the circuit court’s January 18, 2017 judgment of
conviction and sentence, and remand this case to the circuit
court for further proceedings consistent with this opinion.
II. Factual and procedural background
A. Circuit court proceedings
1. Charge and pretrial
On April 6, 2016, Stone was charged via felony information
with promoting a dangerous drug in the third degree in violation
of HRS § 712-1243 (2014).5
5
HRS § 712-1243 states: “(1) A person commits the offense of promoting a
dangerous drug in the third degree if the person knowingly possesses any
dangerous drug in any amount. (2) Promoting a dangerous drug in the third
degree is a class C felony.”
HRS § 712-1240 (2014) states in relevant part: “‘Dangerous drugs’ means
any substance or immediate precursor defined or specified as a ‘Schedule I
substance’ or a ‘Schedule II substance’ by chapter 329, or a substance
specified in section 329-18(c)(14), except marijuana or marijuana
concentrate.”
HRS § 329-16 (2010) provides in relevant part:
(a) The controlled substances listed in this section are
included in schedule II.
. . . .
(e) Stimulants. Any material, compound, mixture, or
preparation which contains any quantity of the following
(continued. . .)
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The State provided five HPD reports to the defense in
discovery. These reports, identified as Court’s Exhibits A
through E, were included in the record for appellate purposes
only. Court’s Exhibit A is Officer Korenic’s April 5, 2016
four-page incident report numbered 16-136877, which listed six
“Related Reports/Comments” numbered 16-121055, 16-121057, 16-
121058, 16-121059, 16-121060, and 16-121061 (“six related
reports”) on its face page, and two related reports numbered 16-
136880 (park closure) and 16-136878 (found property) in the
narrative of the report. Court’s Exhibit B is Officer Korenic’s
follow-up report numbered 16-136877. Court’s Exhibit C is
Officer Korenic’s April 5, 2016 two-page incident report
numbered 16-136880, which listed related reports numbered
16-136877 (Court’s Exhibit A) and 16-136878 (Court’s Exhibit D).
Court’s Exhibit D is an April 5, 2016 found property report
numbered 16-136878 that lists an iPhone. Court’s Exhibit E is a
one-page handwritten found property report (or receipt) numbered
16-136878, listing only an iPhone (Court’s Exhibits D and E are
collectively referred to as the “iPhone Found Property Report”).
(. . .continued)
substances having a danger or probable danger associated
with a stimulant effect on the central nervous system:
. . . .
(2) Any substance which contains any quantity of
methamphetamine, including its salts, isomers,
and salts of isomers[.]
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2. Jury trial
The circuit court held a jury trial on October 27 and 28,
2016.
a. Opening statements
In its opening statement, the State described what the
evidence would show:
Knowingly possess. Ladies and gentlemen, what the
evidence is going to show us through the course of this
trial is that on April 5th, 2016, the defendant knew that
he possessed methamphetamine, and that he tried to hide it.
On April 5th, 2016 at about 3:45 in the morning,
Officer Douglas Korenic was on patrol, and we're going to
meet him during this trial and he’s going to tell us about
how that day he was patrolling the Ala Moana Beach Park
here in Honolulu, State of Hawaii, and at that time he
observed this defendant sitting at a park bench. Well, not
at a park bench, he was on the bench. He was sitting on
the table, on the picnic table, with his feet on the bench.
There’s things on the table.
And Officer Korenic is going to tell us how he
approached the defendant. He started asking him some
questions and he’s talking to the defendant, when all of a
sudden the defendant makes a arm gesture. He uses his arm
and he flicks away a small baggie, which Officer Korenic
knows and recognizes from his training and experience as a
Honolulu Police Department officer, it contains a white
crystalline substance, and he recognizes this substance to
possibly be crystal methamphetamine.
. . . .
And ladies and gentlemen, what the evidence is going
to show you is that that substance was, in fact, crystal
methamphetamine, and even more so, that on April 5th, 2016,
this defendant knew he had it, and then he tried to hide
it. Thank you.
In her opening statement, defense counsel explained the
defense theory of the case:
Now, at 3:45 in the morning, at Ala Moana Beach Park,
I mean, it’s still dark, it’s not the safest place to be at
that time. You will see a picture, and in that picture it
will show Mr. Stone’s belongings, including his
identification, various debit cards, credit cards, store
cards, strewn all over the table. Use your reason and
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common sense. Would anybody have all of their property
thrown all over the table at 3:45 in Ala Moana Beach Park
all by himself? He’s not the biggest guy. You can see
him.
The evidence will show that the very people charged
with protecting us planted –- well, rifled through his
belongings, and who knows, the baggie might have been there
before, but it was not in Kentaru Stone’s possession. He
did not know it was there.
I ask you to pay specific attention to those pictures
because the pictures are neutral; they don’t take any
sides, they just show what is.
And the evidence will show that Mr. Stone, he
probably upset the officers. He has difficulty in hearing
and in speaking, so when Officer Korenic approached him and
asked for his identification, he probably didn’t respond.
But Officer Korenic will testify that he was on bike
patrol. He came across Mr. Stone at approximately 3:45 in
the morning. He started asking him for his identification,
and at approximately 10 minutes later, or 3:55 in the
morning, that’s when he observes Mr. Stone throwing the
baggie.
Now, the baggie is the only evidence in this case,
but I’d also take you –- I’d also ask you to look closely
at those pictures, because on that bench table there’s a
clearly visible Hawaii driver’s license with Mr. Stone’s –-
identifying Mr. Stone, so if the Officer was questioning
him on his identification for ten minutes, when his
identification was clearly in view, because the ID is a lot
bigger and you can see the scale of it, it’s a lot bigger
than the little plastic baggie, which is approximately 1
and a half inches by 1 and 1/4 inches, so, I mean, he
would’ve surely seen his identification on the table.
And as you hear the evidence, also consider that
after recovering the baggie –- I mean, ‘cause there were
other items, there was a –- the bag. The police officers
did not request a search warrant to see if there were other
drug paraphernalia or implementations. They did not
recover a lighter, they did not recover a scraper, they did
not recover anything else related to that drug
paraphernalia.
And ask yourself why they didn’t get a search
warrant. Because they had already rifled through his
stuff, they knew that there wasn’t anything more, and
Kentaru will testify to that.[6]
At the end of this case, there will be reasonable
doubt, and we’ll ask that you find Mr. Stone not guilty.
Thus, based on the discovery provided, defense counsel’s
theory of the case during opening statement was that because the
iPhone Found Property Report was the only found property report
6
Stone ultimately decided not to testify.
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produced in discovery, the other items on the picnic table shown
in the photographic exhibits, which included an ID, belonged to
Stone, and that Officer Korenic would therefore not be
testifying truthfully by testifying he was unable to ascertain
Stone’s identity, when Stone’s ID was visible right in front of
him. The defense theory was also that Officer Korenic had
searched Stone’s bag and had strewn Stone’s belongings all over
the table, as shown in the photographic exhibits, that Officer
Korenic must have planted the methamphetamine baggie after
rifling through Stone’s bag or that the methamphetamine baggie
was already there but did not belong to Stone, and that Officer
Korenic did not seek a search warrant of the bag because he
already knew there was no drug paraphernalia contained therein
because he had already searched Stone’s bag.
b. Officer Korenic’s testimony
On October 27, 2016, Officer Korenic testified as follows.
On April 5, 2016, Officer Korenic was assigned to patrol
Honolulu parks for park closure and rules violations. At
approximately 3:45 a.m., he was walking along the edge of the
Ala Moana Beach Park when he saw a male, later identified as
Stone, sitting on top of a picnic table approximately sixty feet
inside the park boundary. To address the park closure
violation, he approached Stone, who was faced towards him.
While approaching Stone, he saw many items on Stone’s lap and on
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the picnic table, and Stone was “[j]ust touching them, and I
imagine he was maybe going through them or looking for
something[.]” The area was well lit by lights from the walkway.
Officer Korenic stopped approximately six feet away from
Stone. Because the HPD typically issued citations for park
closure violations, but because it was also an arrestable
offense, Officer Korenic asked Stone for his information. Stone
responded that he did not have identification, and when Officer
Korenic asked “what his information was,” Stone stated he had
the right to remain silent. After ten minutes of trying to get
Stone’s information, Officer Korenic told Stone that he would be
arrested if he did not provide his identity. Stone remained
uncooperative.
Stone then threw “like a press seal type baggie, maybe an
inch by an inch, maybe inch and a half at the largest, with his
right hand,” which landed to Stone’s right on the picnic table.
Inside the baggie was “a white crystalline substance that, due
to [his] training and experience,” Officer Korenic “recognize[d]
to be –- [] a narcotic.” He clearly saw the baggie because the
area was well lit by lights from the walkway and his flashlight.
Officer Korenic placed Stone under arrest, and the baggie stayed
on the table throughout the entire investigation.
Officer Korenic identified State’s Exhibits 14 through 17,
which were then admitted into evidence and published to the
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jury. State’s Exhibit 16 is a photograph of the top of the
picnic table with various IDs, membership cards, bank cards, and
a bag strewn about on its surface.7 Stone was sitting in the
area without items in State’s Exhibit 16. Officer Korenic
verified ownership of the items depicted in State's Exhibit 16
through a “found property policy”; the items did not belong to
Stone. None of the individuals who owned these items were
present in the park, none of those individuals approached the
table when he saw Stone, and “they had to come later.”
On cross-examination, Officer Korenic testified he could
not have charged Stone for being in possession of other people’s
confidential personal information because Stone was not in
possession of the items on the picnic table, as they were on the
table. He generated multiple found property reports for those
items, as he had been trained in the academy to detail
everything recovered. When defense counsel asked about the
iPhone Found Property Report being the only such report, Officer
Korenic claimed there were several other found property reports
for the other recovered items.
Defense counsel then showed Officer Korenic the five HPD
reports that had been provided to the defense in discovery.
7
State’s Exhibit 14 is a photograph of the picnic table in relation to
the sidewalk. State’s Exhibit 15 is a photograph of the park bench at a
closer view. State’s Exhibit 17 is a photograph of the methamphetamine
baggie placed next to a penny for comparative size.
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After reviewing the reports, Officer Korenic stated, “There is a
report number that’s not here.”
The circuit court excused the jury, then held a bench
conference regarding Officer Korenic’s testimony that there was
a missing report. Defense counsel stated that it appeared
Officer Korenic was testifying to discovery that had not been
provided to the defense. The State responded, “[T]he defense is
in receipt of all reports received by the State from the police
department. In reviewing the reports as turned over, there is
no reference to other report numbers.” Defense counsel then
moved for mistrial:
And generally in this situation, my understanding is if
there are reports generated out of the same incident, there
should be connecting reports referred to in the discovery,
and there are not any.
So I don’t know if the officer is deliberately trying
to fabricate something at this point or hiding additional
reports, I don’t know, but at this point, you know, we’d
rely to our detriment in terms of questioning the officer.
I mean, I feel compelled to move for a mistrial. I mean, I
don’t think the officer’s been up front in –- or I mean HPD
has been up front with disclosing everything to the defense
at this point.
The circuit court did not rule on the oral motion for
mistrial, instead stating:
THE COURT: I mean, I understand your position. I’m not -- I
don’t think the record’s there yet. I think I need more
information. We can put the witness on the stand outside
the presence of the jury, and you can try and establish a
record for what you’re arguing. Right now we’re just
speculating. He could just be wrong, we don’t know. I
mean, I think -- personally I’d like to know why does he
think there’s a report that's not here, and follow that
trail wherever it leads.
[DEPUTY PROSECUTING ATTORNEY]: Well, first, the State does
acknowledge that usually if there is a connecting report,
there’s a reference to it, the State would receive it, and
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then turn it over in discovery. All reports received by
the State have been provided to the defense.
THE COURT: I understand what you’re saying, [deputy
prosecuting attorney], but the witness has said something
that’s concerning, and I need to get to the bottom of it.
Officer Korenic was brought back for defense counsel to
conduct voir dire. Defense counsel asked, “So in the report
that you submitted for this case, there is no mention of any
connecting reports, correct?” Having reviewed Court’s Exhibits
A-E, Officer Korenic responded, “Incorrect,” stating there were
six related reports listed on the front page of the incident
report. Because the State had not received the six related
reports from HPD, the circuit court recessed for the State to
procure them for defense review.
During the mid-trial recess, the State procured, and
defense counsel reviewed, the six related reports. The State
indicated the missing related reports were irrelevant because
they referred to another incident with another defendant.
Defense counsel responded:
Just so that the jury is not left with the belief that it
pertains to my client, I would like the opportunity to at
least clarify with the officer and –- because he had
related that there were other reports that were, I guess,
created with respect to the found property, and that these
are not them basically.
. . . .
And these are not them, and they don’t have to deal with my
client.
Upon resuming cross-examination, Officer Korenic, having
reviewed the six related reports procured during the mid-trial
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recess, admitted they had nothing to do with Stone. With
respect to whether there were additional found property reports,
however, the following exchange occurred:
Q. Also in your report, the last page of your report,
there is a section entitled Related Reports, correct?
A. Yes, ma’am.
Q. And there are two report numbers under that report,
correct?
A. Can I see it? (Reviewing.) Yes, ma’am.
Q. And those reports are for Park Closure under 16-136880
and Found Property, 16-136878, correct?
A. Yes, ma’am.
Q. And the found property report is the report that I had
previously shown you, correct?
A. Yes, ma’am, I remember that.
Q. And the only item that was detailed in that report is
the iPhone, correct?
A. Yes, ma’am.
Q. Other than that, there are no other found property
reports in your –-
A. That’s correct.
Q. So there’s no other itemization of any items that were
recovered in your report, correct?
A. Not in that report, no.
(Emphasis added.) Thus, Officer Korenic’s testimony indicated
there were other found property reports containing itemization
of the items. Officer Korenic also conceded there was no
mention in his report that Stone had other people’s IDs around
him.
Despite seeing other people’s IDs around Stone, Officer
Korenic did not obtain a search warrant to search Stone’s
belongings. He also did not obtain a search warrant to search
for drug related paraphernalia after he saw the methamphetamine
baggie. There were no drug paraphernalia items on the picnic
table, and there was no mention of drug paraphernalia, such as a
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scraper, straw, lighter, or pipe, in his report; the only
indication of a presence of drugs was the baggie.
On redirect examination, Officer Korenic clarified that the
six related reports were not referenced in the narrative of his
incident report, and only two related reports (park closure and
iPhone Found Property Report) were referenced in the narrative.
Although he was trained to document things like his observations
or the elements of a crime, there were times he did not document
some details, either through oversight or mistake. In this
case, he had testified about what he did and observed from
memory. He also answered in the affirmative when the State
said, “I think it would be fair to say at this point that maybe
there’s some things that your report had that were mistakes.”
He did not, however, correct his previous testimony regarding
the existence of other found property reports.
On recross-examination, Officer Korenic stated there was
“some form of ID” in State’s Exhibit 16 and he did not document
that it was not Stone’s ID and did not identify whose ID it was.
c. Officer Paclib’s testimony
HPD Officer Nichole Paclib (“Officer Paclib”), a bike
detail officer, testified as follows.
On April 5, 2016, at approximately 4:15 a.m., she responded
to an incident at the Ala Moana Beach Park. Upon arrival,
Officer Paclib saw Stone sitting on the picnic table, who was
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with Officer Korenic. Officer Korenic informed her Stone was
being arrested; he pointed to the baggie on the picnic table and
instructed her to recover it. Officer Paclib placed the baggie
into a manila envelope and sealed it with red evidence tape; she
also took pictures of the scene.
On cross-examination, Officer Paclib testified that had she
seen IDs or other cards not belonging to Stone, it would have
raised a “red flag” and she would have documented those
circumstances in her police report “[i]f it was pertaining to
the case[.]” She explained there were some personal items
around the methamphetamine baggie, but she could not recall
exactly what they were. Her report did not state anything about
IDs. She did not see what transpired between Stone and Officer
Korenic before her arrival.
On re-direct examination, Officer Paclib stated she did not
spend time looking at the other items on the picnic table
because her assignment was to recover the methamphetamine
baggie.
d. Other testimony
The State’s other witnesses testified as to the chain of
custody and identification of the substance in the baggie, which
are not at issue in this case.
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e. Closing arguments and verdict
In its closing argument, the State argued that whether
Officer Korenic made mistakes in the incident report did not
matter:
Now, the standard we know is beyond a reasonable
doubt. And you might be wondering in your mind, well, in
order to know that the defendant was in possession of the
baggie, we have to rely on Officer Korenic’s testimony.
And we do know that, you know, he made some mistakes in
that report, so how can I believe what he said?
You know, he admitted that there were some mistakes.
He left out maybe some related report numbers for the stuff
that was on the table, maybe he didn’t fully describe in
his report, you know, what was on the table, what IDs there
were, who they belonged to, but remember he told us that
the purpose of these reports, it’s meant to record the
circumstances about what happened, what’s relevant for that
case. And this is what Officer Paclib told us too, you
know, the purpose of that part of the report is to talk
about what is relevant for what the issue is.
And this case is, and always has been, about the
possession of methamphetamine. And Officer Korenic told us
that he was testifying from his memory, that he wasn’t
relying on what he had written six months ago, because he
remembered what happened. But the report that he wrote
recorded who the defendant was, where he was, what time it
was, what was going on, what he was doing, what the
defendant was doing, what the circumstances were, all
related to this baggie of methamphetamine.
Now defense might get up here and they might want you
to believe that, you know, Officer Korenic and HPD, maybe
they planted it, maybe they have nothing better to do with
their time than to plant evidence, that they’re not busy
dealing with real crime, that they have to make up
something, that Officer Korenic isn’t busy enough
patrolling the gigantic area that is Ala Moana Beach Park,
as well as the other city and county public parks that he
patrols, that he carries around little baggies of meth to
plant on people. Seriously?
They might want you to believe though that because
there’s mistakes in his report, that you can’t believe
anything that Officer Korenic said. And, yeah, you know
what, he admitted he made some mistakes. He came back, he
testified. He seemed a little embarrassed, maybe a little
sheepish that these mistakes were pointed out, but he was
clear about what he remembered, and making a mistake in
your report does not make a conspiracy.
Let’s also talk a little bit about that other stuff
on the picnic table. Officer Korenic told us that they
weren’t the defendant’s. Defense might come up here and
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say that we don’t really know whose it was. But does it
even matter? . . . .
(Emphasis added.)
In her closing statement, defense counsel maintained the
defense theory of the case, emphasizing the lack of found
property reports for the other items found on the picnic table:
So let’s take a look at the evidence presented in
this case. One of the key pieces of evidence in this case
is this picture, a picture of the bench that Kentaru Stone
was sitting at on –- in the early morning of April 5th.
Now, if we take Officer Korenic’s explanation as to where
everything was positioned, Kentaru was sitting someplace
around here, where there was no –- nothing on the table.
Officer Korenic was positioned someplace over here, right
in between the driver’s license and Mr. Stone.
Now, the driver’s license is clearly visible in this
picture, and it would’ve been right in front of Officer
Korenic, and he was questioning Kentaru for approximately
ten minutes. And what you can see in the picture too is
also the size of the ID versus the size of the little
baggie, and there’s a clear difference in size. And,
basically, if you’re focused on getting someone’s
identification at this point, I mean, and an ID is clearly
in front of you, you’re going to see it. It just doesn’t
make sense.
It doesn’t make sense that Kentaru would basically
empty his wallet in Ala Moana Beach Park at 3:45 in the
morning. I mean, it’s dark, it’s dangerous, it’s close to
a bus stop. He could get robbed at any time. It just
doesn’t make sense that he would do this at 3:45 in the
morning.
It doesn’t make any sense that Officer Korenic
testified that the various cards and ID belonged to other
people, because there’s no inventory that was done, which
would clearly have been relevant to this case or the other
cases if he were going to return it. There’s no police
reports for any of the IDs. There’s no mention of people’s
IDs, bank cards or club cards mentioned anywhere in his
police report.
And he did mention doing a found property receipt,
and I questioned him, and you got to see his response on
the record. The only found property receipt that he put in
his report was of the iPhone, nothing else.
And why do you think he did that? He probably saw
this ID after the fact and had to come up with an
explanation as to why it was right there and he didn’t see
it. Officer Korenic basically went into Kentaru’s things
and rifled through it and just –- it was on the table, he
took a picture of it, and only after the fact did he
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realize that the ID was right there. After all, a picture
does say a thousand words.
. . . .
Officer Korenic is not credible. Officer Korenic
knew he had to lie to tie Kentaru to the baggie and to
establish knowing possession, and he distinguished that by
–- in his testimony that said that’s why they couldn’t
arrest him for sitting in a pile of other people’s IDs,
because he wasn’t in possession of it.
The empty baggie did not belong to Kentaru Stone. It
might have been on the table, it might have been someplace
in the area, but it’s not defense’s burden to say exactly
where it came from. It didn’t belong to Kentaru, and
Kentaru wasn’t in knowing position [sic] of the meth
residue in the bag.
. . . .
Officer Korenic’s testimony is contradicted by his
own report, the fact that it doesn’t mention that the IDs
belonged to other people. Officer Korenic’s testimony is
contradicted by the picture which shows Kentaru’s ID
clearly right in front of where he would’ve been –-
. . . .
So you can consider the picture and where Officer Korenic
would’ve been right in front of where the ID is.
Officer Korenic’s testimony is contradicted by his
own actions, not obtaining a search warrant to search
Kentaru’s belongings for other IDs and related drug
paraphernalia.
And Officer Korenic’s testimony is contradicted by
Officer Paclib, who testified that it would raise a red
flag if she saw an ID that belonged to another individual.
She took pictures of the picnic table with all of those IDs
sprawled out. Nothing about the IDs that were scattered on
the table seemed to raise a red flag with her.
And in weighing credibility, you can consider whether
they concern matters of importance or matters of
unimportant detail, and whether they result from innocent
error or deliberate falsehood. Clearly, Officer Korenic’s
testimony regarding the IDs present on the table are an
important detail, and he deliberately lied on the stand
about them.
. . . .
Hold the State to their burden in this case, proof
beyond a reasonable doubt. Not only do those discrepancies
go to judging Officer Korenic’s credibility, they go to the
lack of evidence as well. And let’s talk a little bit
about the lack of evidence.
Don’t fill in the holes for the State. Require them
to provide you with enough credible evidence. Where are
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these reports for these other IDs? Where are they? The
State has not proven their case beyond a reasonable doubt.
In rebuttal, the State again argued that it did not matter
who the items belonged to, and that Officer Korenic was credible
despite the mistakes made in his incident report:
Ladies and gentlemen, the defense seems to revolve
around this photograph, which is State’s Exhibit 16, and
they’re asking you to look at what’s in it and identify
what they are, who they belong to. But the reality is it
doesn’t actually matter, because even if the defendant had
been sitting right next to his driver’s license, if an
officer asks you for your identification, how’s he supposed
to know that that’s yours without you picking it up and
handing it to him?
All of that is to distract you from what the real
question in this case was, is if the defendant possessed
methamphetamine on April 5th, 2016. No ques—- it’s not
about if he possessed other IDs or if he possessed the bag
that’s sitting on the bench, if he possessed any of the
other cards that are depicted in State’s Exhibit 16, but
it’s whether or not he did possess this little baggie. And
we do know exactly where it came from. It came from the
defendant’s hand, his hand attached to him.
. . . .
And if we believe what the defense is arguing, that
Officer Korenic isn’t believable because he made some
mistakes in his report, then we are actually holding him to
a different standard, a higher standard, a standard where
his report would need to be flawless in order for us to
believe him.
. . . .
Officer Korenic, you know, he made some mistakes in
his report, he admitted that to you, but he’s human, and he
is not to be held to a different standard just because he
wears a uniform.
On October 28, 2016, the jury found Stone guilty of the
charged offense.
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3. Motion for new trial
a. Motion
Stone filed his motion for new trial under HRPP Rule 33.
In relevant part, Stone argued he was entitled to a new trial
because “‘justice’ was not served.” He contended he did not
have the benefit of newly discovered evidence, namely Officer
Korenic’s found property reports, or, in the alternative,
information regarding the lack thereof. He also argued trial
courts have an affirmative duty to grant a new trial if they are
convinced that a miscarriage of justice would result by allowing
the verdict to stand.
b. Memorandum in opposition
In her declaration attached to the State’s opposition
memorandum, the deputy prosecuting attorney stated:
Officer Korenic pointed out that on the face page of his
report there were listed six (6) additional police report
numbers that were not included in the body of Officer
Korenic’s report and were not in the State’s possession.
The State was not aware of these reports prior to Officer
Korenic pointing them out.
The deputy prosecuting attorney also stated: “Subsequent to
trial, this Declarant looked for the alleged property reports
and, as of this filing [November 23, 2016], has been unable to
locate them.” (Emphasis added.)
The State contended, however, that the jury was the sole
judge of the credibility of the witnesses and the weight of the
evidence, and Stone did not present any new information
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warranting a new trial. The State maintained that after being
cross-examined, Officer Korenic later retracted his position and
admitted he may have made mistakes in his incident report.
Stone then continued with his theory and, during closing
argument, argued Officer Korenic was not credible because of the
mistakes he made in his report, and the miscellaneous items
belonged to him and that Officer Korenic could have easily
looked at them when questioning him.8 According to the State,
because Stone proceeded to trial with a specific theory centered
on his ownership of the items on the picnic table and was able
to fully present that defense to the jury, there was no
miscarriage of justice.9
The State also asserted that ownership of the miscellaneous
items and IDs was not material or relevant to this drug
possession case. It argued that it was only required to
disclose material and relevant evidence and the six missing
related reports were not material because they would not have
affected the outcome of trial.
The State also noted that in the declaration of counsel in
support of Stone’s motion for new trial, defense counsel stated
8
The State also asserted that had Officer Korenic examined the IDs on
the picnic table, that examination may have raised possible privacy and
suppression issues before trial.
9
The State also argued Stone was not entitled to a new trial under
HRS § 635-56 (2016), as the jury’s verdict was not “manifestly against the
weight of the evidence.”
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“the miscellaneous IDs were not mentioned in Officer Korenic’s
police report, no inventory of the ID[]s were included in the
discovery provided to Defense, in fact the miscellaneous ID[]s
were not mentioned anywhere in the discovery.” The State noted
that during the mid-trial recess, it located the missing related
reports and provided them to Stone. It argued those reports
proved to be irrelevant, that Stone acknowledged there was no
mention of any other reports in Officer Korenic’s incident
report, and that Officer Korenic’s incident report neither
confirmed nor denied Stone’s ownership of the miscellaneous
items and IDs. Instead, the State contended, the only evidence
the other found property reports existed was Officer Korenic’s
testimony, which he admitted could have been a mistake. It also
noted Stone did not request additional discovery be conducted
during trial.
Arguing that ownership of the IDs was irrelevant, the State
contended Stone failed to establish how his mistaken belief
impacted his right to a fair trial. Although conceding Officer
Korenic’s reports did not state who owned the miscellaneous
items, the State argued that Stone making an erroneous inference
did not equate to the denial of a fair trial; his choice to
build his defense around a “belief” was his trial strategy.
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c. Hearing on motion for new trial
On December 27, 2016, the circuit court heard Stone’s
motion for new trial. Stone argued that Officer Korenic’s
testimony “caught the defense quite off guard” and came as
“quite a shock to the defense”:
[DEFENSE COUNSEL]: Yes, Your Honor. In light of the
evidence that came out at trial, namely the testimony of –-
THE COURT: The officer.
[DEFENSE COUNSEL]: -- the officer, Officer [Korenic’s]
testimony that, I guess, he had prepared these reports
regarding the found property of other people that were
located on the picnic table, I realized that we did take a
recess in order to research the connecting reports that he
had referenced on the front sheet of his report, and they
were unrelated in nature.
This caught the defense quite off guard as it was not
–- these found property reports were not disclosed in the
discovery that was received. In talking with my client and
in preparation for trial, it was defense’s argument and
belief and position that the IDs and the various cards that
were on the picnic table belonged to him. Officer
[Korenic’s] testimony on the stand was in direct contrast
of –- with that –- with our –- with the argument that we
were going to present. It did come as quite a shock to the
defense since we were provided absolutely no notice.
In addition, I believe in the State’s response to our
motion, they had indicated that there were no found
property reports that the State could find when researching
this particular case, which is significant for the jury
because I believe that the State argued to the jury that
these cards did not belong to the defendant.
Defense would be in a much stronger position if the
defense could argue to the jury that there were actually no
reports that were generated by the police officer that
could be found within the HPD system. I believe it
directly goes to Officer [Korenic’s] credibility as he
would have basically been caught in a lie in terms of his
response to defense’s question regarding those found
property receipts.
The defense did do a partial impeachment of him, but
without the jury or without being able to establish to the
jury that there were actually no reports generated, I
believe that puts us at a disadvantage because I don’t know
what the jury believed in terms of if they believed the
officer that he actually did do these reports or –- and
there was no way to establish at that point that these
reports, in fact, did not exist.
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And I believe that it would be outcome determinative.
I think it does go –- this is basically a credibility
contest between the defense and the officer. And I believe
that his testimony contained a significant lie which was
argued by the State in its closing argument to the jury in
light of the fact that they did do the research afterwards
and established that there was no found property reports
that was ever prepared by this officer.
So for those reasons, defense is arguing for a new
trial in this case because it was basically only
established mid-trial after Officer [Korenic's] response to
defense’s question that there was any reference to any of
this found property reports.
THE COURT: Okay. It’s not that –- I mean, I understand
that was –-
[DEFENSE COUNSEL]: And there was no way for us to prepare.
The circuit court indicated its doubt as to how the other
found property reports would have impacted Stone’s case:
[THE COURT]: Let me finish my thought, bear with me. I
understand things didn’t unfold the way I think anyone
would want them to unfold. But what I’m trying to get a
grasp on is what difference would it really have made? I
mean, this case came down to the officer comes upon the
defendant in the park, he’s asking him about ID. The
officer’s testimony is clear that he was getting resistance
to his request for ID. It was after hours so he was –-
whoever was there, regardless of ID or not, he was not
supposed to be there so the officer had a legitimate basis
to be asking for ID. And then when he informed the
defendant he was going to arrest him, he throws the packet
away that has drugs in it.
So that’s a pretty simple story so I’m trying to see
how the found property reports might have really had an
impact on any of that.
Defense counsel responded that Officer Korenic’s testimony
concerning the existence of other found property reports
undermined the defense theory:
And the defense’s whole theory of the case and its argument
to the jury was premised on the fact that there was an ID
that was right between where the defendant was seated and
the officer, and he was asking my client for an ID for a
period of about ten minutes. If the jury were to believe
that the ID on the picnic table was my client’s ID, that
would raise serious questions as to the credibility of the
officer’s testimony that he was asking for –- my client for
an ID and the ID was right in front of him.
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. . . .
And, again, this all happened, you know, like midway
through the trial, during questioning that happened. I was
unprepared for the officer’s response and they got the
benefit of the fact that the State was able to argue that
this property did not belong to the defendant and was
unable –- and –- and defense was unable to establish that
there was actually no report that was generated at all by
this officer.
The State then responded to Stone’s arguments:
First, the State did not argue in closing argument that the
property did, in fact, belong to the defendant. The
closing argument of the State in part was that we don’t
actually know who the owner –- what the ownership of these
IDs and other miscellaneous items truly was because Officer
[Korenic] testified at first it was the defendant, but upon
being pointed out that may have been erroneous, he did
concede that his report does not contain, in fact, who it
belonged to.
So his reports were, in fact, silent as to whether or
not those items did or did not believe –- belong to the
defendant. Any inferences drawn therefrom is not the
responsibility of the State.
Secondly, the defense did present argument during
closing argument that the ID on the picnic table did, in
fact, belong to the defendant. She pointed to the
photograph and asked the jury to draw their own conclusions
as to who they truly belonged to. So the defense was not,
in fact, precluded from presenting their arguments as
originally anticipated.
Furthermore, even if their argument had, I guess,
relied on the fact that the ID on the table belonged to the
defendant, Officer [Korenic] would not have been in a
position legally to simply just look at that ID out of
privacy concerns for the items. Under the law there are
proper procedures for doing so.
Basically, what it comes down to is the defense does
not point to any specific prejudice suffered as a result of
the trial and, thus, the motion for new trial should not be
granted.
In rebuttal, Stone argued that whether Officer Korenic
filed other found property reports was material because it went
to Officer Korenic’s credibility, whether Officer Korenic
followed proper police procedure, and prevented Stone from fully
presenting his defense to the jury.
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The circuit court denied the motion for new trial, stating:
THE COURT: But what’s the big deal about whether or not
there’s a found property report? I mean, basically there
was testimony that there was stuff on the table. Whether
there was a found property report or not might be of
interest to –-
[DEFENSE COUNSEL]: Because he –-
THE COURT: -- might be of interest to attorneys, but is the
jury really going to care?
. . . .
THE COURT: All right. All right, I’ve got it. All right.
The motion is denied. I mean, I just don’t –- you know, an
appellate court wants to correct me, that’s fine, I stand
corrected. But I’m just not seeing how this information
would have changed the heart –- I mean, the heart of this
trial was police officer comes across Mr. Stone in the
park, it’s after hours, tries to get ID, testifies that Mr.
Stone is resisting him, he tells him I’m going to arrest
you, throws away the drugs.
It’s a very simple picture. And, you know, whether
he should have done a closing report or shouldn’t have done
a closing report, I just do not –- I cannot find that it
was –- there’s any reasonable possibility that that would
have made any difference to the jury’s determination.
Motion is denied.
4. Sentence and appeal
On January 18, 2017, the circuit court sentenced Stone to a
five-year imprisonment term and filed its judgment of conviction
and sentence. On February 16, 2017, Stone appealed the circuit
court’s judgment of conviction and sentence to the ICA.
B. ICA proceedings
In his appeal to the ICA, Stone raised a single point of
error:
The trial court erred in denying Stone’s motion for new
trial based on the post-trial revelation that Officer
Korenic had not written any “found property” reports for
the several ID and credit-type cards shown in photo S-
Exh.16, contrary to his unrebutted trial testimony that (1)
he had written such reports; (2) that the cards did not
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belong to Stone; and (3) the cards were reclaimed by their
owners, because his credibility was critical to the State’s
case, and Stone was prejudiced by his inability to marshal
this information before the jury.
Specifically, Stone argued that he met the four-part test
the ICA established in Teves for granting a new trial based on a
prosecution witness giving false testimony at trial:
We hold that upon a proper and timely motion under Rule 33,
HRPP, a new trial must be granted by the trial court when
it decides that (1) it is reasonably satisfied that the
testimony at trial of a material prosecution witness is
false; (2) defendant and his agents did not discover the
falseness of the testimony until after the trial; (3) the
late discovery is not due to a lack of due diligence by
defendant or his agent; and (4) the false testimony is not
harmless because there is a reasonable possibility that it
contributed to the conviction.
5 Haw. App. at 96,
679 P.2d at 141 (footnote omitted). Stone
also argued his right to a fair trial was violated because the
State failed to correct Officer Korenic’s false testimony.10
In its November 27, 2019 SDO, the ICA ruled in relevant
part as follows.
The ICA concluded Stone met the first Teves requirement.
Stone, SDO at 5. The ICA noted Officer Korenic was a material
prosecution witness, as he was the only witness to Stone’s
possession of the methamphetamine. Id. The ICA concluded
10
Stone also argued he met the McNulty test, see supra note 3, which we
do not further address due to applicability of the Teves test to the
circumstances of this case.
For the first time on appeal, Stone also argued the evidence of the
other people’s IDs was prejudicial evidence of other crimes under Hawaiʻi
Rules of Evidence (“HRE”) Rule 404(b) (1994) that should have been excluded
under HRE Rule 403 (1980). Because we vacate Stone's conviction on other
grounds, we do not address this argument.
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Officer Korenic’s testimony was false,11 as he testified to the
existence of found property reports which were not referenced in
his reports. Id. Stating there was no evidence these reports
existed other than Officer Korenic’s testimony, the ICA
concluded Stone demonstrated a material prosecution witness
provided false testimony. Id.
As to the second Teves requirement, the ICA concluded the
falsity of the testimony was discovered during trial. Id. The
ICA stated that during a mid-trial recess, after Officer Korenic
testified he had submitted found property reports for the IDs,
the State caused a search for the related reports Officer
Korenic testified were missing, but the related reports had
nothing to do with Stone’s case. Id. The ICA noted Stone
cross-examined Officer Korenic on the fact that his written
reports did not corroborate his assertion that found property
reports were submitted for the IDs found at the scene and the
only found property report mentioned in Officer Korenic’s report
was for an iPhone. Id. As such, the ICA concluded Stone failed
to meet the second Teves requirement, and the fact that the
State conducted a further search and still found no reports did
not change its conclusion. Id.
11
The ICA stated that false testimony is “[t]estimony that is not
true[,]” and is broader than perjury because it lacks a state of mind
element. Stone, SDO at 5 (alterations in original) (quoting False Testimony,
Black’s Law Dictionary (11th ed. 2019)).
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As to the third Teves requirement, the ICA concluded that
even if the false testimony had not been discovered at trial,
any failure of the defense to discover the false testimony may
have been due to a lack of diligence. Stone, SDO at 5-6.
Noting that although defense counsel seemed to be surprised by
the lack of the found property reports, the ICA stated discovery
provided to the defense clearly showed IDs belonging to
different people were found at the scene, and the incident
report identified related reports numbers for which no copies
were provided. Stone, SDO at 6. The ICA stated that, had the
defense requested discovery of those missing reports, it would
have discovered no found property reports regarding the IDs were
created, which would have placed the defense in a better
position to challenge Officer Korenic’s testimony that found
property reports for the IDs existed. Id.
As to the fourth Teves requirement, the ICA concluded there
was no reasonable possibility Officer Korenic’s false testimony
contributed to Stone’s conviction because Stone was able to
fully cross-examine Officer Korenic on the absence of the found
property reports. Id. The ICA reasoned Officer Korenic’s false
testimony provided an avenue for attacking his credibility that
otherwise would not have been open to Stone. Id. It noted that
in closing argument, Stone “thoroughly attacked” Officer
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Korenic’s testimony and the lack of reports supporting the
existence of other people’s IDs. Id.
Accordingly, the ICA ruled that the circuit court did not
abuse its discretion by denying Stone’s motion for new trial and
affirmed the circuit court’s January 18, 2017 judgment. Id.
The ICA filed its judgment on appeal on February 5, 2020.
C. Certiorari application
In his March 5, 2020 application for writ of certiorari,
Stone asks this court to vacate the ICA’s February 5, 2020 SDO.
III. Standard of review
A. Motion for new trial
As a general matter, the granting or denial of a
motion for new trial is within the sound discretion of the
trial court and will not be disturbed absent a clear abuse
of discretion. . . . . The trial court abuses its
discretion when it clearly exceeds the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant.
State v. Yamada, 108 Hawaiʻi 474, 478, 122 P.3d 254, 258 (2005).
IV. Discussion
A. The ICA erred in ruling that Stone failed to meet the Teves
test
As held by the ICA in Teves,
upon a proper and timely motion under Rule 33, HRPP, a new
trial must be granted by the trial court when it decides
that (1) it is reasonably satisfied that the testimony at
trial of a material prosecution witness is false; (2)
defendant and his agents did not discover the falseness of
the testimony until after the trial; (3) the late discovery
is not due to a lack of due diligence by defendant or his
agent; and (4) the false testimony is not harmless because
there is a reasonable possibility that it contributed to
the conviction.
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5 Haw. App. at 96,
679 P.2d at 141 (footnote omitted).
The ICA correctly concluded that Stone satisfied the first
Teves requirement, that “[the trial court] is reasonably
satisfied that the testimony at trial of a material prosecution
witness is false[.]”
As to the second Teves requirement, that “defendant and his
agents did not discover the falseness of the testimony until
after the trial,” however, the ICA incorrectly concluded Stone
discovered the falsity of Officer Korenic’s testimony during
trial. After Officer Korenic falsely testified, the circuit
court took a mid-trial recess so the State could search for the
six related reports that the HPD did not provide to the State
after he asserted a report number was missing. The six related
reports were irrelevant to Stone’s case. Stone cross-examined
Officer Korenic regarding the inconsistency of his written
reports with his testimony that other found property reports
existed. However, Officer Korenic persisted in his testimony
that there was at least one additional found property report.
Stone then filed a motion for new trial, indicating a lack of
awareness of whether additional found property reports actually
existed. It was not until the State’s response to the motion
for new trial that the lack of any additional found property
reports was established. Therefore, Stone discovered Officer
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Korenic’s false testimony after trial, meeting the second Teves
requirement.12
The ICA also incorrectly ruled as to the third Teves
requirement, that “the late discovery is not due to a lack of
due diligence by defendant or his agent.” The ICA stated that
although defense counsel was apparently surprised by the lack of
the found property reports, discovery provided to the defense
showed the IDs belonged to different people. State’s Exhibit
16, which showed the top of the picnic table and the various
cards strewn about it, showed at least three IDs. Noting that
Officer Korenic’s incident report identified the six related
reports not provided in discovery, the ICA concluded that had
the defense requested discovery of those missing reports, it
would have discovered that no found property reports regarding
the IDs were created, and if the defense had done so, it would
have been in a better position to better challenge Officer
Korenic’s false testimony.
The ICA’s analysis is misfocused. The third Teves
requirement pertains to whether the late discovery of Officer
Korenic’s false testimony was due to a lack of due diligence by
Stone or defense counsel. Even if Stone had requested the six
missing related reports, which had nothing to do with his case,
12
As the ICA also correctly stated, the fact that the State conducted a
further search and still did not find reports related to his case does not
change this conclusion.
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and therefore assumed that there were no additional found
property reports generated regarding the items on the table, he
would not have been able to ascertain through due diligence that
Officer Korenic would testify falsely at trial that he had
generated additional found property reports for the other items.
The ICA also erred as to the fourth Teves requirement, that
“the false testimony is not harmless beyond a reasonable doubt
because there is a reasonable possibility that it contributed to
the conviction.” The ICA stated Officer Korenic’s false
testimony “provided an avenue for attacking his credibility that
otherwise would not have been open to Stone.” Stone, SDO at 6.
Yet, Officer Korenic’s persistence in his false testimony
directly undermined the defense’s theory of the case.
Therefore, there was a reasonable possibility that the false
testimony could have contributed to Stone’s conviction. Hence,
Officer Korenic’s false testimony was not harmless beyond a
reasonable doubt.
Therefore, the ICA erred in ruling Stone failed to meet the
Teves test and in affirming the circuit court’s denial of his
motion for new trial. The circuit court abused its discretion
because Stone was entitled to a new trial based on the Teves
test.
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B. Stone’s due process right to a fair trial was violated
Stone also argues that his due process rights were violated
because Officer Korenic’s false testimony deprived him of his
right to fair trial. In 2018, after Stone’s reply brief but
before the ICA’s SDO and Stone’s certiorari application, we
decided Birano. Although Birano was decided after Stone’s reply
brief, due process principles regarding Stone’s right to a fair
trial are fundamental, and we address his contention that his
right to a fair trial was violated.
“A defendant’s right to due process is guaranteed by the
Fourteenth Amendment to the United States Constitution and
article I, section 5 of the Hawaiʻi Constitution.” Birano, 143
Hawaiʻi at 181, 426 P.3d at 405. “‘[I]t is established that a
conviction obtained through use of false evidence, known to be
such by representatives of the State, must fall under the’
constitutional dictates of due process.”
Id. “The same result
obtains when the State, although not soliciting false evidence,
allows it to go uncorrected when it appears.”
Id.
Officer Korenic falsely testified that he had generated
other found property reports for the miscellaneous items on the
picnic table. During Stone’s cross-examination, Officer Korenic
persisted in his false testimony that other found property
reports existed for the other items on the picnic table.
Although Officer Korenic later admitted upon State questioning
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that “there’s some things that [his] report had that were
mistakes,” that testimony related to the fact that he listed six
completely unrelated police reports in his incident report
regarding Stone. Officer Korenic's cross-examination testimony
that other found property reports existed was therefore never
corrected.
With respect to a prosecutor's obligations, we have noted
that “[t]he most rudimentary of the access-to-evidence cases
impose upon the prosecution a constitutional obligation to
report to the defendant and to the trial court whenever
government witnesses lie under oath.” 143 Hawaiʻi at 189, 426
P.3d at 413 (alteration in original). “This principle ‘does not
cease to apply merely because the false testimony goes only to
the credibility of witnesses.’”
Id. We have stated:
It is of no consequence that the falsehood bore upon
the witness’ credibility rather than directly upon
defendant’s guilt. A lie is a lie, no matter what its
subject, and, if it is in any way relevant to the case, the
district attorney has the responsibility and duty to
correct what he [or she] knows to be false and elicit the
truth. . . . That the district attorney’s silence was not
the result of guile or a desire to prejudice matters
little, for its impact was the same, preventing, as it did,
a trial that could in any real sense be termed fair.
Id. (ellipsis and alteration in original). “‘[T]he crux’ of a
due process violation arising from a prosecutor’s failure to
correct false testimony is the ‘deception’ of the finder of
fact[.]”
Id. (first alteration in original). “[A] prosecutor’s
constitutional duty to correct testimony is triggered even when
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a witness’s testimony is ‘at best misleading.’” 143 Hawaiʻi at
190, 426 P.3d at 414.
In this case, it appears the deputy prosecuting attorney
did not know about the falsity of Officer Korenic’s testimony
that additional found property reports existed before trial
concluded. As we stated in Birano, however, “the good faith of
the prosecutor in failing to correct false testimony regarding
impeachment material has no bearing on whether a defendant
received a fair trial as required by due process[.]” 143 Hawaiʻi
at 189, 426 P.3d at 413. Thus, Stone’s due process right to a
fair trial was implicated by the lack of a correction of Officer
Korenic’s false testimony before conclusion of trial.
The violation of Stone’s right to a fair trial is also
subject to the harmless beyond a reasonable doubt analysis.
“[A] violation of a constitutional right is subject to the
harmless-beyond-a-reasonable-doubt standard. This standard
requires a court to ‘examine the record and determine whether
there is a reasonable possibility that the error complained of
might have contributed to the conviction.’” State v. Tetu, 139
Hawaiʻi 207, 225, 386 P.3d 844, 862 (2016) (citation omitted).
For the reasons discussed in our analysis of the fourth Teves
requirement as applied in this case, there was a reasonable
possibility that Officer Korenic’s false testimony contributed
to Stone’s conviction. Hence, Officer Korenic’s false testimony
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was not harmless beyond a reasonable doubt, resulting in the
violation of Stone’s due process right to a fair trial.
V. Conclusion
For the reason above, we vacate the ICA’s February 5, 2020
judgment on appeal and the circuit court's January 18, 2017
judgment of conviction and sentence and remand to the circuit
court for further proceedings consistent with this opinion.
Shawn A. Luiz, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brandon H. Ito
(on the briefs), /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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