HSC Distinguishes Between DNA and Laser Guns and Electronic Scales

State v. Texeira (HSC June 19, 2020)

Background. Koma Texeira was charged with the murder of Jon Togioka. Togioka was shot on Halloween night with a .22-caliber firearm near Hanapepe, Kauai. Texiera and four others were arrested. Texeria was indicted for murder in the second degree and firearms offenses. In the same indictment, Clayton Kona was charged with firearms offenses. Kona pleaded guilty to hindering prosecution in the first degree and a firearms charge in exchange for testifying in the case against Texeira.

Prior to trial, the prosecution filed a motion to determine the voluntariness of a statement purported to be by Texeira. It was a letter written in jail. The prosecution included a declaration stating that the letter states that Texeira shot Togioka in self-defense and that the letter was given to Kona. Texeira opposed the motion on the grounds that the letter was not disclosed until 280 days after the prosecution learned about the letter and one month before trial. At the hearing, Texeria maintained that he did not write the letter—it was written by Kona. The prosecution argued that it turned over the letter as soon as it received it from Kona’s attorney. Kona also testified that Texeria gave him the letter and that Texeira confessed to killing Togioka. The circuit court with the Hon. Judge Randal Valenciano presiding granted the prosecution’s motion.

Texeria filed a motion in limine seeking the exclusion of DNA evidence at trial. Texeira maintained that the DNA expert’s procedures were unreliable. The circuit court denied the motion.

At trial, Texeira tried to present evidence through cross-examianation of the police that other people might have killed Togioka. The circuit court sustained the prosecution’s objections on the grounds that there was no “legitimate tendency” linking others to the offense. The circuit court sustained the objections. The prosecution presented its DNA evidence. The jury found Texeira guilty of murder and the other offenses. He was sentenced to life imprisonment with the possibility of parole. He appealed. The ICA affirmed.

The “Late” Disclosure of the Texeira Letter was Admissible. The prosecution must disclose to the defense “any written or recorded statements . . . made by the defendant” that the are in the “possession or control” of the prosecution. HRPP Rule 16(b)(1)(ii). Texeira argues that the prosecution knew about the letter very early on, but did not disclose it until one month before trial. Investigators at the prosecutor’s office interviewed Kona, who discussed the letter. A transcript of that interview was disclosed to Texeira, which revealed the existence of the letter. At that point, the prosecution did not have the letter. It received it later on and immediately turned it over to Texeira. Texeira contended that it had constructive possession of the letter when it began to negotiate with Kona.

The HSC held that constructive possession of a document by the prosecution hinges on the factual circumstances of each case. See United States v. Reyeros, 537 F.3d 270, 281-282 (3d Cir. 2008); United States v. Graham, 484 F.3d 413, 417-418 (6th Cir. 2007). The HSC here held that there was no control over Kona by the prosecution. The mere fact that a witness is cooperating with the prosecution does not, according to the HSC, show that the witness or his documents are int eh possession or control of the prosecution. The timing of the prosecution’s disclosure of the confession did not violate HRPP Rule 16.

Distinguishing Laser Guns and Electronic Scales Used by the Police to Allow DNA Evidence. Admitting scientific evidence pursuant to HRE Rules 702 and 703 is governed by five factors: (1) the evidence will assist the trier of fact to understand the evidence or determine a fact in issue; (2) the evidence will add to the common understanding of the jury; (3) the underlying theory is generally accepted as valid; (4) the procedures used are generally accepted as reliable if performed properly; and (5) the procedures were applied and conduct properly in the present instance. State v. Montalbo, 73 Haw. 130, 140, 828 P.2d 1274, 1280-1281 (1992). Texeira challenged the fifth element and argued that in order to meet this fifth factor the procedure must be conducted in accordance with the manufacturer’s recommended procedures.

The “foundational prerequisite for the reliability of a test result is a showing that the measuring instrument is in proper working order.” State v. Wallace, 80 Hawai'i 382, 407, 910 P.2d 695, 720 (1996). Texeira argued that the line of cases relating to laser speed devices and scales to establish the foundation must apply here. See State v. Manewa, 115 Hawai'i 343, 162 P.3d 336 (2007); State v. Assaye, 121 Hawai'i 204, 216 P.3d 1227 (2009); and State v. Fitzwater, 122 Hawai'i 354, 227 P.3d 520 (2010).

The HSC disagreed. The HSC explained that this was not a case where the expert lacked personal knowledge as to whether the device had been properly calibrated. In this case, the prosecution called an expert who testified about the training requirements for lab employees, accreditation processes, and introducing the business record to show that the devices were in working order at the time they were used.

The Trial Court Erred in Preventing Texeria from Establishing Third-Party Culpability. The HSC applied the very recent holding in State v. Kato and held that the circuit court erred in preventing Texeria from presenting evidence that a third-party was the killer. The HSC held that the circuit court erred in precluding the evidence, but this error was harmless due to the “wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt.” State v. Rivera, 62 Haw. 120, 127, 612 P.2d 526, 532 (1980).

Justice Nakayama’s Concurrence and Dissent. Justice Nakayama agreed with the majority about admitting the confession letter and the DNA, but disagreed about rejecting the legitimate-tendency test as she did in Kato. Chief Justice Recktenwald joined.