CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-11-0000550; CR. NOS. 10-1-0904, 09-1-0854.
Edward K. Harada, for petitioner.
Sonja P. McCullen, for respondent.
RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ.; WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY, WITH WHOM POLLACK, J., JOINS.
[132 Hawai'i 64] RECKTENWALD, C.J.
Shaun L. Cabinatan was convicted in the Circuit Court of the First Circuit of Burglary in the First Degree and Unauthorized Entry Into Motor Vehicle (UEMV) in the First Degree, in relation to an incident on June 2, 2010, in which Cabinatan and co-defendant
Hawai'i 65] Kimo Moore allegedly participated in a burglary of a Makakilo home and the unauthorized entry into a van at a separate location.
According to the State, Moore entered Jennifer Kincaid's garage and Jeffrey Sampson's van, while Cabinatan was the " getaway driver." Kincaid was the only witness who identified Cabinatan as the driver in the incidents. Specifically, Kincaid identified Cabinatan and Moore in a field show-up procedure conducted at a traffic stop shortly after she reported the burglary to police. Cabinatan and Moore, who were handcuffed, were the only two suspects present at the field show-up. According to Kincaid, police informed her prior to the field show-up that they had stopped a vehicle that matched her description and contained items she described were stolen.
At trial, Cabinatan maintained that Kincaid misidentified him. Cabinatan also presented testimony from a witness indicating that Cabinatan was at her home at the time of the offenses.
Cabinatan requested specific jury instructions regarding the reliability of identification testimony, identification procedure, and field show-up identifications. The circuit court denied Cabinatan's request. The jury found Cabinatan guilty of Burglary in the First Degree and UEMV in the First Degree. Based on the foregoing convictions, the circuit court found that Cabinatan violated the terms and conditions of his probation in an unrelated 2009 case in which he was convicted of Escape in the Second Degree, and thus revoked his probation in that case.
The Intermediate Court of Appeals affirmed Cabinatan's burglary and UEMV convictions and the circuit court's probation revocation order.
State v. Cabinatan, 128 Haw. 499, 291 P.3d 397, 2012 WL 6720380, at *4 (Haw. App. 2012).
Cabinatan argues that his burglary and UEMV convictions should be vacated because the circuit court abused its discretion in refusing to provide specific jury instructions on eyewitness identification. Cabinatan argues that the circuit court's order revoking his probation based on the burglary and UEMV convictions should therefore also be vacated.
For the reasons set forth below, we hold that, under the particular circumstances of this case, the circuit court abused its discretion in refusing to give a specific instruction on field show-up identifications. Accordingly, we vacate the ICA's judgment on appeal, the circuit court's Judgment of Conviction and Sentence in Cr. No. 10-1-0904, and the circuit court's " Order of Resentencing; Revocation of Probation" in Cr. No. 09-1-0854, and remand this case to the circuit court for further proceedings consistent with this opinion.
The following factual background is taken from the record on appeal.
A. Cr. No. 09-1-0854: Escape conviction
On August 4, 2009, Cabinatan pleaded guilty to the charge of Escape in the Second Degree in violation of HRS § 710-1021 in Cr. No. 09-1-0854, and was sentenced to five years of probation. Included among the terms and conditions of Cabinatan's probation was the requirement that Cabinatan not commit another federal or state crime during his probationary term.
B. Cr. No. 10-1-0904: Burglary and Unauthorized Entry into Motor Vehicle convictions
On June 15, 2010, Cabinatan and Moore were charged in Cr. No. 10-1-0904 with Burglary in the First Degree in violation of HRS § 708-810(1)(c) (Count 1), UEMV in the First Degree in violation of HRS § 708-836.5 
Hawai'i 66] (Count 2), Promoting a Dangerous Drug in the Third Degree in violation of HRS § 712-1243 (Count 3), and Unlawful Use of Drug Paraphernalia in violation of HRS § 329-43.5(a) (Count 4). Moore entered a no contest plea to the charges, and was convicted on all counts.
During his opening statement at trial, the deputy prosecuting attorney (DPA) stated, in relevant part, that Kincaid saw a driver and passenger in a gray SUV across the street from her house, later noticed that her bag in her garage was gone, and called police. The DPA stated that police pulled over an SUV matching Kincaid's description, and that during the police investigation, " witnesses [were] brought down to identify suspects in the case, or potential suspects in the case."
Defense counsel contended during his opening statement that the evidence would show that the State " got the wrong guy[.]" Under the defense's theory, a person named Tommy committed the charged offenses with Moore. According to the defense, Moore then dropped off Tommy and picked up Cabinatan, who was in the SUV when it was stopped by police. Defense counsel told the jury that Kincaid misidentified Cabinatan, and described the show-up procedure in which Kincaid identified Cabinatan as " inherently suggestive."
During trial, the jury heard testimony from the complaining witnesses and witnesses who participated in the field show-up. Sampson testified that on the morning of June 2, 2010, he went into his garage in his Makakilo home and saw the driver's side door of his van open. Sampson saw " a guy" look up at him from behind the steering wheel. When Sampson yelled at the person, the person ran away. Sampson chased the person, who appeared to be holding Sampson's CD case. The person jumped into the passenger side of a silver " small sized SUV type Hyundai[.]" Sampson was able to get the license plate number, but was not able to " get a good look" at the driver before the vehicle drove away.
Sampson called the police, who arrived within about five minutes. Sampson stated that " within the same ten minutes when the police were there, they said that they had stopped a vehicle, and that they had them . . . held up at the side of the highway[.]" Sampson stated that he went to the traffic stop and saw " two guys sitting on the side of" the road. Sampson identified Moore as the person who was in his van.
On cross-examination, Sampson stated that the incident occurred " [v]ery close to 8:00" in the morning. Sampson could not recall whether, when police asked him to go to the location where the SUV was stopped, the police said " anything about suspects may or may not be there[.]"
Officer Kaleka Punahele Akana testified that he drove Sampson to the traffic stop for the " field show-up[.]" Officer Akana testified that he followed standard procedure, including telling Sampson " that they're potential suspects," to " [k]eep an open mind," and " identify them if they're the people that [he] saw that took part in the crime." Officer Akana stated that Sampson identified Moore as the person he saw running from his van, but did not identify Cabinatan. Officer Akana also stated that after Sampson identified Moore, Officer Akana investigated further and " [r]ecovered a black CD case" from the silver SUV.
During cross-examination, Officer Akana acknowledged that his police report regarding the Sampson incident indicated that the incident occurred at 7:50 a.m., and that police were notified at 8:05 a.m. Officer Akana testified that he was the first officer to respond to Sampson's house, and that he arrived " maybe ten, maybe 15 minutes after the call came in" -- " maybe around" 8:26 a.m.
Officer Akana answered numerous questions about police lineups and photographic arrays. For example, Officer Akana described police lineups as presenting eight to
Hawai'i 67] ten people to a complainant for possible identification of the suspect and stated that the reason for having eight to ten people in a lineup is " to make it fair for the person that . . . we're trying to positively ID." Officer Akana explained that police also ensure a fair process by using people who match the description of the suspect in the lineup. Officer Akana also described field show-up procedures, which he acknowledged do not have the same " safeguards" as lineups and photographic arrays.
The circuit court asked Officer Akana if " any of the persons [were] handcuffed during this show-up," and Officer Akana stated that they were handcuffed behind their backs. On recross-examination, Officer Akana acknowledged that Sampson would have seen that both men were handcuffed.
Kincaid testified that at 8:05 a.m. on June 2, 2010, she noticed a gray SUV with tinted windows parked across the street facing the wrong way on the street, which struck her as " kind of odd[.]" Kincaid stated that she looked at the driver but didn't recognize him. Kincaid stated that she saw the driver through the open passenger window from her garage, about 25 to 30 feet away. Nothing blocked her view of the driver. Kincaid testified that " it seemed like [the driver] was having [a] conversation with somebody outside of the vehicle[.]" Kincaid started to walk toward her driveway to see " if he was talking to anybody," and then saw another person standing in the corner of her driveway. The person walked toward the street and looked towards her but never made eye contact. After the person looked toward Kincaid, he talked to the driver of the car. The person then entered the SUV, and the SUV went up the street. Kincaid estimated that the time between when she first noticed the driver and when the SUV drove away was about five minutes. In court, Kincaid identified the driver as Cabinatan.
Kincaid saw her neighbor, Doug Campbell, in his driveway, and she asked him if he knew who was in the SUV. While Kincaid and Campbell talked, the SUV returned and turned onto another street. Kincaid said it appeared to her that the person in her driveway who had gotten into the passenger seat was then driving the SUV. When asked if the person who was previously driving was then in the passenger seat, Kincaid answered: " Correct. But well, I couldn't see that that person --obviously, because it was on the opposite side."
Kincaid went back in her house but shortly afterward returned to the garage and noticed that her bag and portfolio, which she left on a couch in her garage, were gone. That morning, after Kincaid made a police report, the police informed her that they had potential suspects. Kincaid and her husband followed Sergeant Bryan Loudermilk to the traffic stop, where Kincaid pointed out the person she first saw driving the SUV, as well as the person she saw near her garage. Kincaid also recognized the SUV as the one that was parked near her house, and identified her bag in the SUV.
On cross-examination, Kincaid stated that she saw that the driver was wearing dark sunglasses, a black baseball cap, and a blue shirt. Defense counsel questioned Kincaid about her initial descriptions to police of the driver. Kincaid agreed that she indicated the driver was wearing a black baseball cap, and acknowledged that she did not indicate on the police form the color of the driver's shirt. The time indicated on the description form read " 0756." 
Defense counsel also questioned Kincaid about the field show-up. Kincaid testified
Hawai'i 68] that responding officers informed her that police stopped a vehicle that matched her description and contained items she described were stolen, and asked her to go to the site to identify the suspects, the vehicle, and her items. Defense counsel asked, " So the thing that clued you in was the vehicle and . . . mainly your personal items then?" Kincaid answered in the affirmative.
Kincaid testified that once she arrived at the traffic stop, Sergeant Loudermilk told Kincaid that " there would be individuals there by the car that they would want [her] to look at to see if [she] could identify whether or not those were the individuals that were up at [her] house."
Defense counsel also asked Kincaid whether she could see the driver's arms and neck and whether she indicated on the police form that he had any tattoos. Kincaid answered that she could see his arms but not his neck, and that she did not indicate on the police form that he had tattoos.
On redirect examination, Kincaid described the police form, which provided choices that she could circle with regard to, inter alia, race, complexion, color of glasses frames, and color of hats. In contrast, there was no color choice to circle with regard to the suspect's shirt. The DPA also questioned Kincaid about the field show-up:
Q. . . . Now, when you identified the men down near the ramp, did you identify them as the suspects or because you found your stuff or did you recognize them?
A. I recognized them.
Q. Okay. So it's not as if you went, there's my bag, these must be the guys?
Q. Okay. You actually looked at them and decided that those were the people who you had seen by your house?
Q. Regardless of whether or not your bags were there?
On direct examination, Sergeant Loudermilk stated that on the morning of June 2, 2010, he responded to a UEMV case at Sampson's house, and that immediately after he arrived, there was a report of a burglary at Kincaid's house. Sergeant Loudermilk left Sampson's house and went to Kincaid's house. Sergeant Loudermilk, who at the time lived in Makakilo and was familiar with the area, estimated the distance between Sampson's and Kincaid's houses as less than half a mile. After listening to Kincaid's and Campbell's statements about the incident, Sergeant Loudermilk learned about possible suspects detained nearby.
Sergeant Loudermilk described a field show-up: " If . . . an offense has occurred and we catch a possible suspect a short distance away and the time limit is a short amount of time, we bring a witness or complaining witness to where the possible suspect is and we do an identification at that time." According to Sergeant Loudermilk, police are trained to inform witnesses during field show-ups that " these suspects may or may not be involved" in the case " so the witness doesn't feel obligated to say this is the person when indeed it's not[.]"
Sergeant Loudermilk described the June 2, 2010 field show-up in which Kincaid identified Cabinatan and Moore. Sergeant Loudermilk stated that he and Kincaid were outside of their vehicles and were about 25 to 30 feet from the suspects when he asked if she could identify them. According to Sergeant Loudermilk, Kincaid had an " unobstructed view." Sergeant Loudermilk informed Kincaid that the persons at the traffic stop may or may not be the suspects involved in the case. Kincaid identified Cabinatan as the driver of the SUV, and stated that she recognized him from his " facial features."
Sergeant Loudermilk estimated that Sampson's house is " just around three miles" from the traffic stop, and that the drive from Sampson's house to the traffic stop would take " [a]nywhere from four to six minutes following all traffic laws."
On cross-examination, Sergeant Loudermilk agreed that he arrived at Sampson's home at about 8:35 a.m., and arrived at Kincaid's home at about 8:40 a.m. Sergeant Loudermilk was at Kincaid's house for about 15 minutes before he proceeded to the traffic stop. Sergeant Loudermilk testified about
Hawai'i 69] what he told Kincaid regarding the field show-up:
When we were [at Kincaid's house], I asked her if she could identify the people that she saw on Limukele [Street]. She related she could.. . . .Then I asked her if she would view some people that we have down at the bottom of the hill, see if these people were involved or not.. . . .She related she would.. . . .And then the husband drove her down to where I indicated earlier. I followed. We got out of the car and . . . I told her also that . . . just because police officers are showing you these people doesn't mean they're involved or not. If you can identify them, let us know.
Sergeant Loudermilk stated that he was not sure if he asked Kincaid at her house if she could go to the traffic stop to see if she could identify her property, but said that he " may have." Sergeant Loudermilk stated that Cabinatan and Moore were handcuffed during the field show-up, and that Cabinatan had on a light blue shirt. Sergeant Loudermilk testified that Cabinatan was not wearing dark glasses, and Sergeant Loudermilk did not recall Cabinatan wearing a hat. Sergeant Loudermilk stated that he did not notice tattoos on Cabinatan and did not note the presence of tattoos on Cabinatan in his police report.
Sergeant Loudermilk also discussed the differences between a field show-up and line-ups and photographic arrays. In discussing lineups and photographic arrays, Sergeant Loudermilk stated that police try to include people with similar characteristics as the suspect, but stated that if the suspect was described as having a hat and sunglasses on, " I would have the hats go off and the glasses go off." Sergeant Loudermilk acknowledged that police did not have Kincaid identify Cabinatan in a line-up or photographic array. Sergeant Loudermilk also stated that " because of the time, the distance, the fact that  Kincaid said she could identify the people, that is why we did a field lineup. If she stated that she could not identify who she saw in front of her house, we would not have taken her down to the traffic stop." Sergeant Loudermilk also stated that he told Kincaid " because [Cabinatan] was with the police, . . . not to think that he was the person who did it, it's an alleged suspect[.]"
Defense counsel asked Sergeant Loudermilk whether seeing Cabinatan in handcuffs would suggest to Kincaid " that this is the person we're looking for," and the following exchange occurred:
A. I believe it goes on to the person, if the person believes it's suggestive, yes. If another person doesn't believe it's suggestive, it's not.
Q. Okay. Isn't it suggestive to tell a witness that, in this case,  Kincaid, that we found your property before she even makes an ID?
A. I'm not aware that happened.
Q. Okay. If it did happen, isn't that suggestive?
A. That could be suggestive.
. . . .
Q. If there's a car that is clearly tied to perpetrators and the car is present at the scene, would that be something ...