Officer’s False Testimony Prompts New Trial Even Though it did not Pertain to the Defendant’s Guilt

State v. Stone (HSC June 15, 2020)

Background. Kentaru Stone was charged with promoting a dangerous drug in the third degree. The prosecution provided five Honolulu Police Department reports to the defense in discovery. The lead officer in the police investigation was HPD Officer Douglas Korenic II. The police department also has a “found property policy.” Property recovered after an arrest that does not belong to the arrestee is itemized and listed a “found property” for others to claim. The only found property report here was an iPhone.

In the prosecution’s opening statement, the prosecutor said that Officer Korenic approached a man at a picnic table at Ala Moana Beach Park at 3:45 in the morning. He talked to the man “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 . . . recognizes this substance to possibly be crystal methamphetamine.”

The defense posed an alternative theory. Counsel in her opening statement told the jury that they would see a picture of the scene. That picture shows Stone’s things strewn all over the picnic bench—his identification card, “various debit cards, credit cards, store cards, strewn all over the table.” She also said that “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 Kenatru Stone’s possession. He did not know it was there.”

According to the defense, Officer Korenic could have easily ascertained Stone’s identification because his ID card was strewn on the table with his debit and credit cards. Thus, if Officer Korenic testified that he could not ascertain Stone’s identity, he would not be testifying truthfully.

Officer Korenic testified that he was on patrol going through Honolulu parks. He came across a man sitting on top of a picnic table within the park at 3:45 in the morning. Officer Korenic approached the man and saw several items on his lap and picnic table. It looked to Officer Korenic like he was going through them. Officer Korenic asked for the man’s information, but the man was not forthcoming. At that point, Officer Korenic saw the man throw a small baggie onto the picnic table. In the bag was a substance resembling crystal methamphetamine. Officer Korenic testified about several pictures shown to the jury—including a picture with all of the cards and items on it. He also testified about the “found property policy,” in which officers itemize property recovered that did not belong to the arrestee. He testified that none of the items on the table belonged to Stone.

On cross-examination Officer Korenic said that he generated several found property reports stemming from the run-in with Stone. He testified he inventoried more than the iPhone. Counsel had Officer Korenic go through all of the reports disclosed during discovery and he testified “there is a report number that’s not here.”

The jury was excused and held a bench conference. The defense pointed out that Officer Korenic testified about police reports that were not turned over in discovery. The prosecution responded that the defense received everything it received from the police and there was no reference to other report numbers. Stone moved for a mistrial. The circuit court, with the Hon. Judge Jeffrey Crabtree presiding, did not rule on the motion and wanted more evidence on the motion.

Officer Korenic returned to the stand outside the presence of the jury. He testified that there were six other found property reports. The circuit court recessed trial so the defense could review the reports. The prosecution procured the reports and the defense reviewed them. The prosecution then argued that the reports were irrelevant because they referred to a different incident with another defendant. It is unclear what happened to the motion for mistrial.

Cross-examination resumed and Officer Korenic admitted that the other reports had nothing to do with Stone—but that the reports were still there. He did testify that the identification cards were not Stone’s and belonged to other people. Stone was found guilty.

Stone then filed a motion for new trial. The motion made it clear that Officer Korenic was wrong. There were no other “found property reports” relating to Stone. The motion was nonetheless denied and Stone was sentenced to five years of imprisonment. The ICA affirmed.

When a New Trial is Required Based on Evidence. A new trial should be granted based on a four-part test

[U]pon 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.

State v. Teves, 5 Haw. App. 90, 96, 679 P.2d 136, 141 (1984). The HSC agreed with the ICA about the first part—testimony at trial of a material prosecution was false. The ICA concluded that Officer Korenic’s testimony was false because he testified about found property reports that were never referenced in his own reports. The HSC, however, disagreed with the rest of the ICA’s analysis. The falsity was not discovered at trial. It was not until the motion for new trial when it became clear that Officer Korenic’s testimony was false. And because the falsity was not discovered until after trial, the late discovery was not caused by any lack of diligence by Stone or his counsel. Finally, the testimony was not harmless because the HSC found that it might have contributed to the conviction. The new trial should have been ordered.

The Due Process Right to a Fair Trial. The HSC also examined if the false testimony deprived him of the right to a fair trial. “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 Hawai'i Constitution.” Birano v. State, 143 Hawai'i 163, 181, 426 P.3d 387, 405 (2018). When a conviction is obtained with “false evidence, known to be such by representatives of the State,” due process has been violated. Id. “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id.

Here, Officer Korenic falsely testified that he had generated other found property reports for the miscellaneous items on the picnic table. During cross-examination he persisted in his false testimony. Then he later admitted when the prosecution questioned him that he made some mistakes in his report—the listing of six completely unrelated police reports in his incident report about Stone. This still left the jury with the false impression that he had six other property reports.

Even though it was tangential to the charges, the HSC held that the prosecutor had a constitutional obligation to set the record straight.

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.

Id. at 189, 426 P.3d at 413.

The HSC acknowledged that it looked like the prosecutor was unaware of Officer Korenic’s falsity at least during trial. Nonetheless, the good faith of a prosecutor in failing to correct false testimony “has no bearing on whether a defendant received a fair trial as required by due process.” Id. Thus, Stone’s due process rights were violated.