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State v. Tetu

Supreme Court of Hawaii

December 5, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
ROBERT TETU, Petitioner/Defendant-Appellant.




          POLLACK, J.

         This case presents the question of whether a defendant charged with committing a criminal offense on private property has a right to visit the crime scene. We hold that the constitutional provisions providing for effective assistance of counsel and a fair trial afford a defendant, subject to appropriate restrictions, with the right to access the scene of the alleged offense.

         I. BACKGROUND

         A. Circuit Court Proceedings

         On March 25, 2010, at about 2:00 a.m., a surveillance camera filmed Robert Tetu, who was wearing a backpack, entering the uninhabited basement area of Maunaihi Terrace, a private condominium building in Honolulu. The video footage recorded Tetu entering into two locked utility closets with an unknown tool and wiping the door knobs afterwards with his jacket.[1] Tetu is then seen leaving the closet with a backpack-type bag in one hand, a black plastic garbage bag in the other hand, and a "mini mag light type flash light" in his mouth. The next day, after reviewing the video footage, the condominium manager inspected the storage closets and noticed that an electric grinder and several emergency lights and batteries were missing.

         On May 24, 2010, Tetu was charged with burglary in the second degree in violation of Hawaii Revised Statutes (HRS) § 708-811 (1993).[2] As part of discovery, the defense received the police reports, which included copies of the surveillance footage, eight photographs, and two diagrams of the basement where the utility closets were located. The photographs showed the fire-exit door through which Tetu entered, the short hallway where the surveillance camera was located, the exterior doors to the utility closets, and a few items on the shelves inside one of the storage closets. Tetu's counsel went to Maunaihi Terrace on November 18, 2010 in order to inspect the premises, but he was denied access and told to "coordinate an inspection through the resident manager." Thereafter, defense counsel sent an email to the condominium manager to arrange a visit. The email, which was copied to the prosecutor, informed the manager that the prosecutor was also interested in visiting the condominium. In response to the email, the manager told Tetu's counsel that the request would be presented to the condominium homeowner's association or board of directors. Counsel, however, did not receive a further response.

         Tetu filed a pretrial motion to compel discovery in the Circuit Court of the First Circuit (circuit court)[3] requesting access to the condominium premises, arguing that "location is everything" and that "[t]he defense must examine the area from its own perspective." The motion provided four reasons why access to the condominium was necessary. First, "[t]he State's diagrams, video[, ] and photograph discovery d[id] not adequately orient [Tetu] and [his] counsel to the area in question for purposes of cogently presenting this case to a jury." Second, the footage only included a "partial photo" of the interior of one of the utility closets. Third, noting that the diagrams were not drawn to scale, the defense requested access to "help counsel to intelligently question and cross-examine witnesses, present visual evidence to the jury and to understand the account" of Tetu, who was in custody. Fourth, access was needed to "photograph areas which may be significant to the defense if they are not already depicted in the discovery already produced." The motion requested that the court issue an order directing the prosecution "to make Maunaihi Terrace available for inspection, measurement, and photographs" or directing the complaining witness to make the premises available under reasonable conditions.

         The State opposed the motion, arguing that Rule 16 of the Hawai'i Rules of Penal Procedure (HRPP) (2012) only required the prosecution to deliver material and information within the prosecutor's possession or control or in the possession or control of other governmental personnel. The State also argued that because eight months had passed before defense counsel first attempted to access the condominium and fifteen months had elapsed since the incident, any inspection or photographs taken of the premises would not accurately depict the scene at the time of the offense and would not be relevant or admissible under Rule 401[4] and Rule 402[5] of the Hawaii Rules of Evidence (HRE). Alternatively, the State contended that, even if access to the premises was relevant, access should be barred under HRE Rule 403[6] because it would be cumulative of the materials already provided to Tetu by the prosecution.

         A hearing was held on the motion to compel discovery. No representatives from Maunaihi Terrace were present. Defense counsel argued that Tetu's constitutional rights to effective representation and to confront witnesses would override any privacy considerations. The circuit court concluded, however, that any evidence at the condominium would not be relevant under HRE Rule 401. The court also determined that because there was video surveillance, there was "no real plausible justification" for access to the crime scene. The court stated that Tetu's request for access "appears to be speculative and conjecture with a hope to turn up something." Additionally, the court noted that because time had passed since March 2010, access to the condominium might not have been helpful. Accordingly, the court held that HRPP Rule 16 did not apply to Tetu's request for access and denied the motion to compel.

         Approximately two months later, the prosecution--without defense counsel's knowledge--visited the crime scene with the condominium manager to inspect the basement and take additional photographs. When the defense was provided with these new photographs prior to trial, Tetu sought to exclude their admission into evidence. The defense argued that fairness demanded that the prosecution not be allowed to visit the crime scene and collect evidence for presentation at trial after the defense's request to do the same was denied. The prosecutor stated that she went to the condominium to take additional photographs so that the jurors could have "a bigger or a better idea" of what the condominium building looked like. Tetu's counsel argued that this was inconsistent with the State's earlier position that there was "no need" to take additional photographs of the alleged crime scene.[7]

         In response to the court's question regarding the two sets of photographs, defense counsel stated that while the new photographs showed differences in the closets' contents, major differences were not apparent. The court concluded that because of the existence of the video footage and the facts of the case, it stood by its original ruling denying the motion to compel discovery.[8] The court also denied the defense's motion to exclude admission of the prosecution's newly obtained photographs.

         At trial, the State's first witness was the condominium manager. Using a blueprint of the condominium, the prosecution asked the manager to orient the court to the location of the elevators and the utility closets in the basement of the building.

[Manager]: Well, there's elevator mauka and elevator makai, and it's called electrical closet and it's called stor[age], but it's another electrical closet.
[Prosecutor]: Okay. So they're right across from each other, the two utility rooms?
[Manager]: Yes, and that's the little hallway there.

         The prosecution used the photographs that the defense had moved to exclude to identify several objects and rooms shown in the photographs. Next, the prosecution played the surveillance video for the jury and asked the manager to narrate what he saw and to place the events of the video in context with the building's layout.

[Prosecution]: And what part of the basement is that?
[Manager]: He just headed towards the laundromat, the laundry room.
[Prosecution]: And is there a hallway that connects all sides of the basement to the elevators?
[Manager]: Sorry, yes. There's another hallway just like this right on that side where he just emerged from.

         The manager described Tetu breaking into two of the closets with some kind of tool, wiping the door handles with his jacket, and leaving the closets with a bag of "stuff" and a flashlight in his mouth. The manager testified that the wood around the door knobs was damaged after the incident and that only those persons with keys had access to the storage closets, as he always kept the doors to the closets locked.

         Tetu's counsel cross-examined the condominium manager and likewise attempted to establish the layout of the basement area where the utility closets were located.

[Defense]: When we went over the photographic evidence, you made reference to a makai utility room and a mauka utility room, correct?
[Manager]: Yes.
[Defense]: Okay. And when I saw some reports referenced to east and northeast utility closets, do you ever use those distinctions?
[Manager]: I don't, no.
[Defense]: So if there's a reference to an east closet, would you be able to tell us if that's the mauka or makai one?
[Manager]: I've never heard it referred to as the east or -- or what did you say?
[Defense]: Northeast. So your distinction is mauka-makai?
[Manager]: Yes.
. . . .
[Defense]: Okay. Sir, I'm going to show you Exhibits 23 and 24 in evidence. I'll ask you -- this is 23. Which --which utility closet is this one?
[Manager]: This is the mauka utility closet.
[Defense]: And, okay, and 24 would be makai?
[Manager]: It's the same -- no, it's the same one.
[Defense]: It's the same closet?
[Manager]: Yeah.
[Defense]: Oh, okay. Sorry. Oh, my mistake. Okay.

         Tetu testified that he did what was shown on the video, but that he entered the building to retrieve his then-wife's clothing and not to steal anything. Tetu explained that he had been arguing with his former wife, with whom there was a substantial language barrier, when he dropped her off near Manauihi Terrace a few hours prior to the incident. He testified that she called him to pick her up and that when he arrived, she let him into the building. Tetu stated that he went in to help her pick up her bag, and she told him that it was in a closet by an elevator. Tetu explained that he used a piece of wire to open the closet, which is where he found his former wife's bag. He related that he looked inside the bag to make sure it contained her clothes and left without taking anything else. Tetu testified that there were more valuable things in the closet, such as a computer, and that if he had intended to take anything, it would not have been a flashlight and some batteries.

         Tetu's former wife testified as a rebuttal witness for the State. She related that she never asked Tetu to pick up a bag of her clothes and that she had never been to Maunaihi Terrace or stored anything there.

         In its closing argument, the defense argued that because Tetu entered with the intent to retrieve his former wife's clothing and not to steal anything, Tetu was a trespasser, not a burglar. The court instructed the jury on the elements of burglary in the second degree and criminal trespass in the first degree under HRS § 708-813 (Supp. 2000).[9] The jury found Tetu guilty of burglary in the second degree, and he was sentenced to five years of imprisonment.

         B. Appellate Proceedings

         Tetu appealed the judgment of conviction to the Intermediate Court of Appeals (ICA), arguing that (1) the circuit court erred in denying his discovery request to access the crime scene and that (2) the verdict was not supported by the evidence adduced at trial. The State responded that the right to discovery in a felony case is the right to receive material and information possessed by the prosecution and its agents concerning the case. Because the State did not possess or have control over Maunaihi Terrace, the State maintained that defense counsel did not have a right under HRPP Rule 16 to compel discovery of the condominium. Further, the State argued that the appearance and configuration of the condominium more than a year after the incident rendered Tetu's reasons for requesting access irrelevant. In response, Tetu contended that the passage of time alone does not diminish the importance of accessing the crime scene and that inspecting areas of the property would have likely shown an exit-only door with no signs of forced entry, corroborating that his former wife let him into the condominium.

         The ICA issued a memorandum opinion affirming Tetu's conviction. Citing case law from other states, the ICA observed that the court must balance the defendant's need for access to the crime scene with the private party's right to privacy. The ICA noted, "A speculative or conclusory showing, or the failure to explain how the proposed inspection would yield information different from that already disclosed in discovery, is insufficient to overcome the privacy rights of the private party." The ICA held that a defendant must "make a prima facie showing of how the proposed inspection would be relevant and material to his or her defense" and "demonstrate sufficient 'plausible justification' and 'good cause' for the intrusion.'" The ICA ruled that Tetu did not sufficiently explain to the circuit court how becoming familiar with the scene was relevant to his defense. Thus, it affirmed the circuit court's order denying Tetu's motion to compel discovery. The ICA also rejected Tetu's claim that there was insufficient evidence to support his conviction.

         This court granted certiorari to address the following questions raised by Tetu: (1) whether the ICA erred in affirming the circuit court's denial of the motion to compel discovery; and (2) whether the ICA erred in finding that Tetu's conviction was supported by substantial evidence.


         This court reviews questions of constitutional law "by exercising our own independent constitutional judgment based on the facts of the case." State v. Phua, 135 Hawai'i 504, 511-12, 353 P.3d 1046, 1053-54 (2015); accord State v. Mundon, 121 Hawai'i 339, 349, 219 P.3d 1126, 1136 (2009). Therefore, questions of constitutional law are reviewed under the right/wrong standard. Phua, 135 Hawai'i at 512, 353 P.3d at 1054; accord State v. Auld, 136 Hawai'i 244, 250, 361 P.3d 471, 477 (2015).


         A. Motion to Compel Discovery

         1. Right to Access the Crime Scene Under HRPP Rule 16

         The issue of whether a defendant has a right to inspect the crime scene is one of first impression before this court. A defendant has a right under HRPP Rule 16[10] to discover "material and information within the prosecutor's possession or control." HRPP Rule 16 (2012). Because the State was not in possession of Maunaihi Terrace, HRPP Rule 16 does not expressly provide the defense with access to the crime scene.[11] However, the HRPP Rule 16 discovery right does not purport to set an outer limit on the court's power to ensure a defendant's constitutional rights. See United States v. Yoshimura, 831 F.Supp. 799, 805 (D. Haw. 1993) ("In criminal cases discovery is limited to that required by the due process clause of the Constitution, which requires that the Government make available evidence that is material to guilt or punishment."); see also United States v. Richter, 488 F.2d 170, 173 (9th Cir. 1973) (stating that although discovery was not allowed under Federal Rules of Criminal Procedure Rule 16, "the rules ...

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