Prosecution must Disclose Name, Address of Witness to Rebut Alibi Defense (even if he was Initially an Alibi Witness)
State v. Valeros (HSC January 27, 2012)
Background. Brandon Valeros was charged with assault in the 2d degree. HRS § 707-711(1)(d). Valeros allegedly beat Kenneth Ring with a collapsible metal baton outside Exotic Nights, a stripclub near Ward Avenue and Halekauwila Street on November 6, 2006. Before trial, Valeros filed a notice of alibi pursuant to Hawai'i Rules of Penal Procedure Rule 12.1. The prosecution, pursuant to the rule, responded that it would rely on Ring and his friend, who was with Ring when he was assault at 2:20 a.m. Valeros further responded that at that date and time, he was in the Club Electro parking lot in Pearl City with Jamison Benavides and Timothy Santiago. Valeros provided their contact information.
During pretrial, Valeros reported having a hard time getting in contact with Santiago. In the meantime, the prosecution's investigator found Santiago in Kalihi and Santiago told the investigator a statement that rebutted the alibi defense. The investigator's findings were never disclosed to Valeros. Shortly before trial, Valeros announced that he could not rely on Santiago because he could not be reached and that he would rely only on Benavides. During another conference held two days after Valeros' announcement, the prosecution found Santiago on the Big Island, but never told Valeros.
At trial, Ring testified that he and his friends started out at Femme Nu and then moved on to Exotic Nights. After that, he was hit by a "Polynesian" man with a collapsible metal baton. The man had others with him. Ring and his friends gave different descriptions of the assailant. After giving a description to the police, Miller caught a cab to the Zanzabar nightclub in Waikiki. There, he saw one of the men he believed to be involved in the assault. He told a nearby police officer and it turned out that one of the men Miller identified was Benavides. At 5:00 that morning, the three men rounded up in Waikiki were presented to Ring and Miller. Ring identified Valeros as his attacker.
Benavides and Valeros testified. According to them, they were with Santiago and Ryan Yamashita. They did not have a truck that night. They were at Club Electro until 2:00 a.m. They smoked cigarettes in the parking lot and piled into Yamashita's Honda Civic to Big Kahua, a nightclub in Waikiki. They parked by the zoo. Yamashita left and then the three of them were stopped by the police.
The prosecution wanted to present a rebuttal witness that was flown in for one day. This was the first time Valeros learned that Santiago was going to testify as a rebuttal witness. Valeros spoke with Santiago in order to ascertain what he would say, and Valeros objected to his testimony as a violation of HRPP Rule 12.1. Valeros argued that the prosecution had to provide written notice of its intent to call him. The prosecution argued that it was not required to provide any notice because Santiago was part of the initial disclosure by Valeros. The objection was overruled.
Santiago testified that he was at Club Electro with Valeros and Benavides. He was very drunk, but could recall chasing some guy on Ala Moana Boulevard. Because his testimony was so disjointed, the circuit court permitted the prosecution to call the investigator who interviewed Santiago in Kalihi. The investigator testified that Santiago told him that he was a passenger in a pickup truck and that they were chasing two guys toward Exotic Nights. Valeros was found guilty as charged. The ICA affirmed.
Special Procedures of Discovery for Alibi Defenses. When a defendant relies on an alibi defense, "the defendant shall . . . notify the prosecutor in writing of such intention and file a copy of such notice with the court." HRPP Rule 12.1(a). After that, the prosecutor and the defendant narrow down the disputed date, time, and place of defendant's presence. HRPP Rule 12.1(b). The defendant must also disclose the names and addresses of the alibi witnesses. "The prosecutor shall then inform the defendant in writing of the names and addresses of the witnesses upon whom [sic] the government intends to rely to establish the defendant's presence at the scene of the alleged offense." Id.
Prosecution must Disclose Name and Address of Rebuttal Witness
After the "defendant has furnished to the government the names and addresses of his [or her] alibi witnesses, defendant has a reciprocal right to discover the names and addresses of witnesses the government intends to rely on to rebut or discredit" the alibi witnesses. State v. Davis, 63 Haw. 191, 196, 624 P.2d 376, 380 (1981). Here, the HSC held that the prosecution had to disclose to the defense Santiago's name and address as soon as it realized that it was going to rely on him to rebut the Valeros' alibi. The fact that Santiago was originally an alibi witness was irrelevant.
. . . and be Quick About it. The prosecution's obligation to notify the defendant about rebuttal witnesses must be given "promptly." HRPP Rule 12.1(d). The record showed that the prosecution first contacted Santiago months before trial in Kalihi. The record also shows that at the latest, the prosecution knew it was going to use Santiago during the pretrial conference two days after it learned that Valeros announced he could not find him. Instead, it waited for the defense to start its case before making this announcement. It was clear to the HSC that Valeros lost contact with its alibi witness, the prosecution found him, and then used him for its case. According to the HSC, the prosecution "concealed Santiago's new status as its new alibi-rebuttal witness" in violation of HRPP Rule 12.1(b). The HSC noted that "trial is hardly an end in itself; it is not a poker game in which players enjoy an absolute right always to conceal their cards until played[.]" State v. Sherman, 70 Haw. 334, 341, 770 P.2d 789, 793 (1989).
The Circuit Court's Last-Minute Interview is not a Proper Remedy. The HSC next held that the circuit court's solution--allowing Valeros' counsel to interview Santiago in the middle of trial--did not cure the discovery violation. HRPP Rule 12.1(d) imposes a continuing duty to promptly disclose witnesses. This, according to the HSC, is designed to "precisely avoid such mid-trial surprises." Moreover, the HSC noted that if Valeros knew about Santiago before trial, it could have adjusted the trial strategy to avoid an alibi at all. The vast discrepancies in the prosecution's witnesses in chief showed that it could have used an unreliable-identity defense. But by the time Santiago was revealed, that defense was forfeited. Given this prejudice, the mid-trial meeting and a continuance of trial would not have remedied the violation.
Fall on your Sword: the Good Cause Exception. HRPP Rule 12.1 is not ironclad. The court may grant an exception to the specific disclosure requirements under the rule "[f]or good cause shown[.]" HRPP Rule 12.1(f). In determining whether good cause, the court "balance[s] the interests of both the government and the defendant to give both an opportunity to discover on equal terms." State v. Davis, 63 Haw. at 198, 624 P.2d at 380-81. Here, no good cause was shown by the prosecution for its violation. Thus, the circuit court abused its discretion in exempting it from discovery obligations. This should provide some hope for any party that finds itself in this bind. If there is a good reason for it, the circuit court can make exceptions to the requirements. But that would require acknowledgement of a violation. Here, it seems unlikely that the prosecution did such a thing.The Error is not Harmless. An error cannot be harmless if there is "a reasonable possibility that [the] error might have contributed to the conviction." State v. Veikoso. Here, the HSC held that the error was not harmless because there was no "direct testimony" that overwhelmingly contradicted the alibi defense. See State v. Ah Choy, 70 Haw. 618, 780 P.2d 1097 (1989). The prosecution's witnesses in chief had multiple inconsistencies in their descriptions of the assailant despite their identification of Valeros, and no metal baton was found. Santiago's testimony--albeit indirectly--provided evidence that they were chasing two men near Exotic Nights. This, according to the HSC, proved to be a pivotal role in the case and reasonably might have contributed to Valeros' conviction.