TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0003062; CR.
McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J.,
CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
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.
Circuit Court Proceedings
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. 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.
24, 2010, Tetu was charged with burglary in the second degree
in violation of Hawaii Revised Statutes (HRS) § 708-811
(1993). 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.
filed a pretrial motion to compel discovery in the Circuit
Court of the First Circuit (circuit court) 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
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 and Rule 402 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 because it would be
cumulative of the materials already provided to Tetu by the
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.
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
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. The court also denied the
defense's motion to exclude admission of the
prosecution's newly obtained photographs.
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.
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
[Prosecution]: And what part of the basement is that?
[Manager]: He just headed towards the laundromat, the laundry
[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.
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.
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
[Defense]: Okay. And when I saw some reports referenced to
east and northeast utility closets, do you ever use those
[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
[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?
[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?
[Defense]: Oh, okay. Sorry. Oh, my mistake. Okay.
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.
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.
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). The jury found Tetu guilty of burglary in
the second degree, and he was sentenced to five years of
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
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
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.
STANDARD OF REVIEW
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).
Motion to Compel Discovery
Right to Access the Crime Scene Under HRPP Rule 16
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 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. 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 ...