State v. Tetu (HSC December 5, 2016)
Background. Robert Tetu was charged with burglary in the second degree. Specifically, it was alleged that Tetu burglarized the basement of Maunaihi Terrace, a condominium in Honolulu. Throughout the discovery process, the defense received relevant police reports, surveillance footage, eight photographs, and two diagrams of the scene. Before trial, Tetu’s lawyer went to the condominium to inspect the scene but was barred entry and instructed to coordinate with the property manager. Tetu’s lawyer emailed a request and cc’d the prosecuting attorney to the property manager. The manager responded that it would present the request to the board of directors for the condominium. Counsel received no further response.
Tetu filed a motion to compel discovery on the grounds that it sought access to inspect the premises. Specifically, he argued that the “defense must examine the area from its own perspective.” He also argued that the disclosed reports, diagrams, and photographs did not accurately portray the scene and further inspection was needed. The prosecution opposed. A hearing was held on the motion. No representative from the condominium appeared. The motion was denied.
Two months later the prosecution, without informing the defense, visited the scene and took additional photographs. When the photographs were presented as additional evidence, Tetu objected and sought its exclusion. The request was denied and the photographs were used at trial. Tetu was found guilty and he was sentenced to prison for five years. Tetu appealed and the ICA affirmed. The Hawaii Supreme Court accepted certiorari.
The (Constitutional) Right to Access the Scene. As a matter of first impression, the HSC examined the constitutional dimension of the right to access the scene. Criminal defendants have the right to effective assistance of counsel. Haw. Const. Art. I, Sec. 14. This right includes the right to ensure that counsel conducted adequate pretrial investigations. See State v. Aplaca, 74 Haw. 54, 67-71, 67 n. 2, 837 P.2d 1298, 1305-1307, 1305 n. 2 (1992). According to the HSC, “defense counsel should investigate the crime scene and consider seeking access as early as possible, unless circumstances suggest it would be unnecessary in a given case.” The HSC arrived as this conclusion after reviewing extensive statutes from other jurisdictions and treatises. Here is what the HSC concluded for defense counsel:
In sum, under Article I, Section 14 of the Hawaii Constitution, a defendant is entitled to the assistance of an attorney whose representation falls within the range of performance demanded of attorneys in criminal cases. There is a broad consensus across the United States that competent defense counsel should access the crime scene unless, after a careful investigation of the underlying facts of a case, counsel makes a reasonable determination that access is not necessary to provide effective assistance of counsel.
Check your Notes, Counsel! And so the HSC has held that the failure to inspect the scene can—in some cases—result in ineffective assistance of counsel. When is that? Future cases, unfortunately, will have to flesh it out.
The Additional Due Process Problem. The HSC also examined a due process element to the issues presented by Tetu. The HSC further held that due process requires the right for the defendant to access the scene of the alleged crime. It is not enough to rely on what the prosecution gives the defense. “A defendant’s right to due process is infringed when defense counsel is forced to rely on materials provided by the government based on what the police or the prosecution deems relevant at the crime scene—that is, what is photographed, what is included in diagrams, or what is depicted in a video and then disclosed in discovery.”
The HSC held that Tetu’s due process rights were violated. He tried to access the scene, but was denied. On top of that, the prosecution got to go to the scene, take more pictures, and then use them over his objection at trial.
But it’s Harmless. The HSC may have found a constitutional violation, but it also examined whether the error was harmless beyond a reasonable doubt. There was strong evidence of a burglary thanks to the surveillance footage and testimony of witnesses. The HSC held that the pretrial discovery violations were harmless beyond a reasonable doubt.
So Where do we go from here? The HSC provided some guideposts for courts in the future. First, it noted that when it comes to investigating private property, some limitations should be imposed in order to preserve the third party’s constitutional right to privacy. For example, the circuit court could have imposed some reasonable time, place, and manner restrictions instead of an outright ban from the premises.
Chief Justice Recktenwald’s Concurrence and Dissent. The CJ concurred with the result. He wrote separately to point out the standard for discovery requests in criminal cases. In the CJ’s view, before accessing the scene, the defense should be required to show why inspection of the scene will lead to relevant evidence on a material issue. He opined that this is not a high standard and that Tetu showed it here. But like the majority, he believed that the error was one of harmlessness. The CJ’s concern is that if there is no showing of materiality and all that is required are reasonable time, place, and manner restrictions, the access of private property by the defendant could infringe upon the rights of victims and third parties. Justice Nakayama joined.