NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 10-1-2051)
Randall K. Hironaka, (Miyoshi & Hironaka) for Defendant-Appellant.
Sonja P. McCullen, Deputy Prosecuting Attorney, City & County of Honolulu, Plaintiff-Appellee.
Fujise, Presiding Judge, Reifurth and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Kaleookalani K. Kekaualua, also known as Kurt K. Kekaualua and Aunty Kaleo ("Kekaualua"), appeals from the February 1, 2 012 Judgment of Conviction and Sentence entered in the Circuit Court of the First Circuit ("Circuit Court") .
On appeal, Kekaualua argues that: (1) he was denied his constitutional right to effective assistance of counsel when his trial counsel (a) failed to object to hearsay evidence establishing identification and (b) moved into evidence the report authored by Honolulu Police Department ("HPD") Officer Khan Le; and (2) the deputy prosecutor engaged in misconduct when she made statements regarding Officer Le's integrity during closing arguments.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Kekaualua's points as follows:
(1) Kekaualua argues that his trial counsel was ineffective because counsel did not object to hearsay statements made by HPD Officer Chad Tanaka, and moved Officer Le's follow-up report regarding a photographic lineup into evidence.
a. Officer Tanaka's Hearsay Testimony
Kekaualua contends that his counsel's "fail[ure] to object to . . . hearsay statements establishing [Kekaualua] as the person who sold drugs to Officer Le" impaired his defense, in which he sought to show that Officer Le had mistakenly identified Kekaualua as the seller. He focuses on two statements made during the prosecutor's direct examination of Officer Tanaka: (a) "[Officer Le] said he conducted a transaction with a male known as Kaleo[, ]" and (b) "I conducted a photographic lineup with Officer Le, at which time he pointed out the defendant as the same male with whom he purchased drugs from." Kekaualua argues that because these hearsay statements served to bolster Officer Le's later testimony, and that no other witness testified as to the seller's identity, counsel's performance was deficient for failing to have them excluded under Hawai'i Rules of Evidence ("HRE") Rule 801.
For Kekaualua to prevail, he must establish, in part, "specific errors or omissions of defense counsel reflecting counsel's lack of skill, judgment, or diligence." State v. Antone, 62 Haw. 346, 348, 615 P.2d 101, 104 (1980) (citing State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 979 (1972)). Kekaualua fails, however, to identify any error, as Officer Tanaka's two unchallenged statements, while hearsay, were exempt as prior identification from the rule against hearsay under HRE Rule 802.1 (3)
"A police officer may testify as to the prior identification by a witness, but only where the person making the identification 'is present at trial, testifies to the prior identification, and is subject to cross-examination.'" State v. Tafokitau, 104 Hawai'i 285, 290, 88 P.3d 657, 662 (App. 2004) (quoting State v. Naeole, 62 Haw. 563, 570, 617 P.2d 820, 826 (1980)) . Similarly, if these conditions are satisfied, an "officer who conducted [a] photographic lineup may also testify to such identification[.]" Naeole, 62 Haw. at 570, 617 P.2d at 826. Here, the hearsay declarant, Officer Le, testified at trial as to each of his identifications of Kekaualua to Officer Tanaka and was, thereafter, subject to cross-examination. Thus, Officer Tanaka's statements about Officer Le's prior ...