CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000647; CR. NO. 15-1-0108)
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
appeal arises from an impermissibly suggestive field show-up
identification. Midday on Saturday, January 24, 2015, Mari
Laraway ("Laraway") was walking with her minor son
from their apartment building on Date Street to her car. As
she walked alongside the apartment building, she saw a man
crouching beneath the window of a ground-floor apartment.
Once at her car, she looked up and saw the man entering the
apartment through a window. Laraway called 911 to report the
Police Department ("HPD") officers later found
Petitioner/Defendant-Apellant Bronson Kaneaiakala
("Kaneaiakala") naked in the laundry room of the
apartment building with items missing from the apartment, and
they arrested him. Two-and-a-half hours after she had seen a
man enter the ground-floor apartment through a window,
Laraway met the officers on the street outside the apartment
building. Kaneaiakala was shirtless, handcuffed, and standing
beside a police car, surrounded by police. Laraway looked at
Kaneaiakala and told the officers she was "almost
positive" Kaneaiakala was the man she saw at the window
earlier. After she had identified Kaneaiakala as the suspect,
Laraway was asked to complete a suspect description form and
she gave the officers a written statement.
State of Hawai'i ("State") charged Kaneaiakala
with one count of Burglary in the First Degree in violation
of Hawai'i Revised Statutes ("HRS") §
708-810 (1) (c) (2014). Before trial, Kaneaiakala filed a
motion to suppress Laraway's show-up identification.
Circuit Court of the First Circuit ("circuit
court")conducted a hearing on the motion to
suppress. The State stipulated that the procedure employed by
HPD was impermissibly suggestive. The circuit court found
Laraway's identification nonetheless sufficiently
reliable and denied the motion. At jury trial, the State
presented testimony from Laraway, one of the residents of the
burglarized apartment, and two police officers. The jury
found Kaneaiakala guilty as charged.
appeal, the Intermediate Court of Appeals ("ICA")
affirmed the conviction and, in a summary disposition order,
held that the circuit court did not err in concluding that
Laraway's identification was sufficiently reliable for
admission in evidence and consideration by the jury.
State v. Kaneaiakala, No. CAAP-16-0000647 at 2-5
(App. Nov. 7, 2017) (SDO). On certiorari, Kaneaiakala argues
Laraway's identification should have been suppressed
because it was unreliable and tainted by HPD's show-up
Justice Brennan stated in 1967, "[t]he vagaries of
eyewitness identification are well-known; the annals of
criminal law are rife with instances of mistaken
identification." United States v. Wade, 388
U.S. 218, 228 (1967). In the half-century since
Wade, science on human memory has advanced even
further, and it has become widely accepted that unreliable
eyewitness identifications are the leading cause of wrongful
this, in State v. Cabagbag, 127 Hawai'i 302,
313-14, 277 P.3d 1027, 1038-39 (2012), we held that when the
trustworthiness or reliability of eyewitness identification
is central to a case, trial courts must give a specific jury
instruction when requested by the defense to focus the
jury's attention on the reliability of the
identification. 127 Hawai'i at 313-14, 277 P.3d at
1038-39. We also proposed a model jury instruction to address
reliability concerns with eyewitness identifications,
including thirteen reliability factors that a judge should
consider including in a jury instruction. 127 Hawai'i at
314, 277 P.3d at 1039.
ruling that trial courts no longer had discretion to reject
defense requests for a jury instruction regarding the
trustworthiness of eyewitness identifications, we abrogated
the holding in State v. Padilla, 57 Haw. 150, 552
P.2d 357 (1976), that a trial court had discretion to decide
whether to give such an instruction.
overruling Padilla on that point in
Cabagbag, we did not address another holding of
Padilla. In Padilla, we also adopted a test
set out by the United States Supreme Court in Neil v.
Biggers, 409 U.S. 188 (1972), for trial courts to apply
to determine whether an eyewitness identification procured
through an impermissibly suggestive procedure should be
admissible in evidence. We held that when an eyewitness
identification is procured through an impermissibly
suggestive procedure, the trial court must evaluate five
factors under the totality of the circumstances to determine
whether the identification is nonetheless sufficiently
reliable to be admitted in evidence. Padilla, 57
Haw. at 154, 552 P.2d at 360.
five factors are: (1) the opportunity of the witness to view
the defendant at the time of the crime, (2) the witness's
degree of attention, (3) the accuracy of the witness's
prior description of the defendant, (4) the level of
certainty demonstrated by the witness at the identification,
and (5) the length of time between the crime and the
thirteen factors we held in Cabagbag that a judge
should consider including in a jury instruction regarding
reliability of eyewitness identifications include the five
factors delineated in Padilla for a judge to
consider in addressing admissibility.
Cabagbag, in State v. Cabinatan, 132
Hawai'i 63, 76, 319 P.3d 1071, 1084 (2014), we noted that
although field show-up identifications can be admissible,
they are inherently suggestive. We cited to various
United States Supreme Court opinions criticizing
identifications of only one person presented as a possible
perpetrator of a crime, including Stovall v. Denno,
388 U.S. 293, 302 (1967) abrogated on other grounds by
Griffith v. Kentucky, 479 U.S. 314 (1987), which had
stated that "[t]he practice of showing suspects singly
to persons for the purpose of identification, and not as part
of a lineup, has been widely condemned."
Cabinatan, 132 Hawai'i at 83, 319 P.3d 1091. We
held that under the circumstances of that case, where the
eyewitness's testimony suggested her identification of
the defendant in a show-up might have been influenced by
suggestive procedures, even under the pre-Cabagbag
discretionary standard, the trial court abused its discretion
in denying a defense request for a jury instruction regarding
the inherent suggestiveness of show-up identifications.
Cabinatan, 132 Hawai'i at 77, 319 P.3d at 1085.
But because the issue before us was the need for a jury
instruction and not admissibility, we did not address whether
trial courts must also consider additional factors when
addressing the admissibility of show-up identifications.
defendant is denied due process of law, however, when the
procedure used to obtain an eyewitness identification
admitted at trial is "unnecessarily suggestive and
conducive to irreparable mistaken identification."
State v. Masaniai, 63 Haw. 354, 362, 628 P.2d 1018,
1024 (1981) (citations omitted). In this case, we therefore
address whether, in determining whether an eyewitness
identification procured through an impermissibly suggestive
procedure is nonetheless sufficiently reliable under the
totality of the circumstances to be admitted in evidence, a
trial judge must also consider factors we have held the judge
must consider including in a jury instruction regarding the
reliability of the eyewitness identification.
doing so, we set forth new rules that expressly overrule
precedent upon which parties have regulated their conduct;
therefore, our holdings will only apply prospectively to
events occurring after publication of this decision, i.e., to
admissibility determinations or jury instructions given after
the date of this opinion. See State v. Auld, 136
Hawai'i 244, 256, 361 P.3d 471, 483 (2015) (citations
omitted) ("The 'paradigm case' warranting a
prospective-only application of a new rule arises 'when a
court expressly overrules a precedent upon which the contest
would otherwise be decided differently and by which the
parties may previously have regulated their
to be applied in addressing eyewitness and show-up
identifications should not differ based on whether it is a
judge or jury considering them for purposes of admissibility
or, if admitted into evidence, for purposes of determining
reliability. As further discussed below, and to summarize, we
therefore prospectively hold that trial courts must, at
minimum, consider any relevant factors set out in the
Hawai'i Pattern Jury Instructions--Criminal
("Hawai'i Standard Instructions" or
"HAWJIC") governing eyewitness and show-up
identification testimony,  as may be amended, as well as any other
relevant factors that may be set out in binding precedent in
addressing whether, under a totality of circumstances, an
impermissibly suggestive eyewitness or show-up identification
is nonetheless sufficiently reliable to be admissible in
prospectively hold that in addressing the admissibility of a
suggestive eyewitness or show-up identification, trial courts
must also consider the effect of any suggestiveness on the
reliability of the identification in determining whether it
should be admitted into evidence.
we prospectively hold that when an eyewitness or show-up
identification is central to a case or has been procured
through a suggestive eyewitness or show-up identification,
the jury must also be instructed to consider the impact of
any suggestive procedure on the reliability of the eyewitness
or show-up identification.
Kaneaiakala's case, however, the trial judge did not err
in applying the Padilla factors that governed the
admissibility determination at the time it was made. As our
holdings are prospective, we therefore affirm the ICA's
judgment on appeal affirming Kaneaiakala's conviction and
the denial of his motion to suppress.
Additional Factual and Procedural Background
Circuit Court Proceedings
January 26, 2015, the State charged Kaneaiakala via felony
information with one count of Burglary in the First Degree,
in violation of HRS § 708-810(1) (c) .
Pretrial Motion to Suppress Eyewitness
9, 2015, Kaneaiakala filed a motion to suppress Laraway's
identification and argued the identification was obtained
through an impermissibly suggestive and unreliable show-up.
Kaneaiakala maintained that as a result of the process used
by the officers to conduct the field show-up, there was an
"inordinately high" likelihood that Laraway
incorrectly identified him as the man she saw at the window.
Kaneaiakala also asserted Laraway's identification was
unreliable because Laraway (1) viewed the man at the window
briefly in passing, and (2) she later "admitted she had
bad eye sight and was not wearing her glasses" when she
witnessed the man at the window.
State responded that even if the show-up was impermissibly
suggestive, Laraway's identification was still admissible
as reliable because: (1) Laraway saw the man at the window in
broad daylight; (2) her view was not obstructed; (3) she
"was able to provide at least a partial description of
[the suspect] to 911" that was consistent with how
Kaneaiakala looked when the police arrested him; (4) the
show-up took place just a few hours after Laraway saw the man
at the window; and (5) Laraway was "almost
positive" that Kaneaiakala was the man she saw at the
window based on his body shape, scruffy face, and short,
circuit court held a two-day hearing on the motion to
suppress on September 1, 2015 and September 8, 2015. Two
witnesses testified at the hearing: Laraway and Officer Kanoa
Hose ("Officer Hose"). The following relevant
testimony was presented at the hearing.
a Japanese interpreter, Laraway testified as follows.
lived in the 2904 Date Street Apartments on January 24, 2015.
At around 12:30 p.m. that day, she left her apartment to walk
to her car, which was parked on Date Street across from the
apartment building. As she and her son walked on the sidewalk
alongside the apartment building before crossing Date Street,
Laraway saw a man crouched beneath the window of a corner,
ground-floor unit of the apartment building. Laraway was
about four meters away from the man when she also noticed
that the window's screen was rolled up.
could only see the side of the man's face as she walked
by, but she observed the man had short, curly hair and a
"scruffy face." She also noted he was "not
black, but he seemed to be suntanned, Caucasian with light
brown . . . skin." She did not recognize him. She took
note of the man because "[i]t was quite unusual"
for someone to be crouched there. The man was wearing a hat
covering a portion of his face, but at the hearing she could
not remember whether the hat cast a shadow over his face.
Laraway got into her car, which was parked facing towards the
apartment, she looked up and saw the man's upper body was
through the window and into the apartment. She immediately
day of the incident, Laraway spoke and wrote in English when
interacting with HPD. Laraway had given the following
description of the man to the 911 dispatcher: "a skinny
black guy," who was also "muscular" and
"stout," and who was wearing a white or light blue
hearing, Laraway thought the shirt the man was wearing was
long-sleeved. She also clarified that she did not describe
the man's hair to the 911 dispatcher or tell the 911
dispatcher that the man's face was "scratchy or
calling 911, Laraway drove to her son's soccer game.
While at the park, at around 2:00 p.m., Laraway received a
call from an officer, but did not further describe the man
she saw at the window at that time.
returned home at around 3:00 p.m. and saw four police cars
outside the apartment building. The police told Laraway they
had "captured the guy in the laundromat." She
thought that meant they had caught the man she had seen
earlier at the window. Laraway agreed to participate in a
field show-up outside the apartment building sometime between
3:00 p.m. and 4:00 p.m. The officers did not provide her with
any forms or instructions before conducting the show-up.
officers asked Laraway to look at Kaneaiakala, who was
standing on the sidewalk, shirtless, handcuffed, and
surrounded by police officers. It was a "clear day"
and she stood ten to fifteen feet away from him. On June 24,
2015, Laraway told the police she was "[p]retty
sure" Kaneaiakala was the same man she had seen earlier.
She "got the same impression" from Kaneaiakala as
she did from the man at the window, because of the
"structure and the face and the hair color . . . the
image itself, and also [the] complexion of his skin."
admitted she did not see anything distinct about the eyes or
nose of the man at the window, and if shown someone with
similar body shape and complexion, it might have been hard
for her to identify the correct person. She further
testified, however, that she was sure that Kaneaiakala was
the man she saw at the window.
she identified Kaneaiakala, Laraway completed a written
statement on which she wrote, "I almost positive the guy
was him." After identifying Kaneaiakala, she also filled
out a suspect description form, checking various boxes
describing the suspect as a Caucasian male, 5'6" to
5'8" feet tall with a medium build, dark brown hair,
brown facial hair, and wearing a long-sleeved white polo
shirt and long blue pants. She wrote in the word
"scruffy" to describe the man at the window's
explained that on June 24, 2015, she had checked the box
indicating the man at the window was wearing pants, but she
now recalled the man at the window was wearing shorts. She
also explained she checked the box for long-sleeved shirt,
but testified that the man might have been wearing a
short-sleeved shirt. She acknowledged she checked the box
indicating the man at the window's height based on later
seeing Kaneaiakala at the show-up.
January 24, 2015, Laraway had spoken English with the
officers and completed all forms in English. At some point
that day, she told the police that she has "bad
eyesight" and that she was not wearing her glasses when
she saw the man at the window. Laraway testified she was born
and raised in Japan and grew up interacting mostly with
Japanese people. At her workplace, she predominately
interacts with ethnically Japanese people. During her past
decade in Hawai'i, however, she has seen and interacted
with diverse people, and she is married to a Caucasian man.
hearing, Laraway also identified Kaneaiakala, who was present
in the courtroom, as the man she had seen at the window.
Officer Hose's Testimony
Hose testified that on January 24, 2015, at around 12:38
p.m., he responded to a "suspicious circumstances type
case" at the apartment building. Upon his arrival, he
noticed that a window screen of a ground-floor, corner
apartment had been cut. He contacted the owner of the
apartment, who arrived around 1:00 p.m. The owner looked in
the apartment and identified missing items.
Hose left the apartment, but was called back thirty minutes
later to investigate a situation involving "a nude male
in the laundry room." When he returned, Officer Abe
Kamanao ("Officer Kamanao") was in the laundry room
with the man, whom Officer Hose identified in court as
Kaneaiakala. The officers found a long-sleeved, light-blue
collared shirt and a pair of black shorts near Kaneaiakala
and instructed Kaneaiakala to put on the shorts. Officer Hose
observed that several items the apartment owner reported
missing were in the laundry room, including the watch
Kaneaiakala was wearing.
Hose then called Laraway, who said she was returning to the
apartment building soon. When she returned, he asked her if
she would be able to identify the man she saw at the window
and whether she would "be willing to participate in a
conduct the show-up, Officer Hose had Kaneaiakala stand next
to a parked police car on the street outside the apartment
building. He had Laraway stand "no more than about 40
feet" away from Kaneaiakala, from where she had a clear,
unobstructed view of Kaneaiakala. Laraway calmly and quickly
identified Kaneaiakala as the man she saw at the window.
Hose testified that Laraway was never given any instructions
and was never told that the person she viewed may or may not
be a suspect. He denied telling Laraway that Kaneaiakala was
the man she had seen earlier. He admitted that Laraway did
not record her description of the man at the window until
after the show-up.
Officer Hose's cross-examination, the State stipulated
that the show-up was impermissibly suggestive.
The Circuit Court's Findings of Fact, Conclusions of Law,
and Order Denying Motion to Suppress
October 27, 2015, the circuit court entered findings of fact
and conclusions of law denying Kaneaiakala's motion to
suppress. The court's findings of fact were based largely
on Laraway's testimony of the events that occurred on
January 24, 2015. The findings of fact included, among other
things, that Laraway (1) participated in a field show-up, (2)
recognized Kaneaiakala based on his build, body shape,
complexion, and hair, and (3) told the officers she was
"almost positive" that Kaneaiakala was the man she
saw at the window.
on those findings, the circuit court concluded that: (1)
although the show-up procedure was impermissibly suggestive,
(2) Laraway's identification of Kaneaiakala was
nonetheless admissible because the totality of the
circumstances, including the five Biggers factors,
indicated the identification was reliable.
case then proceeded to jury trial.
jury trial was held from April 18, 2016 to April 20, 2016.
The State called four witnesses: Laraway, Officer Hose, Kip
Praissman ("Praissman"), and Officer Kamanao.
Kaneaiakala did not present any witnesses. Laraway's
testimony was substantially similar to her testimony at the
hearing on the motion to suppress. At trial, she added that
she lived with her husband and son at the 2904 Date Street
apartment building on January 24, 2015, and that she had left
their apartment that day with her twelve-year-old son to go
to her son's soccer game at Kapiolani Park. Officer
Hose's testimony was substantially similar to his
testimony at the hearing on the motion to suppress.
a resident of the ground-floor apartment that was broken
into, testified in pertinent part as follows. He had locked
the apartment when he left it the morning of January 24,
2015. He returned around 1:00 p.m. after receiving a call
from HPD that his apartment had been burglarized and met with
HPD officers to identify what items were missing from the
apartment and to provide a statement.
time after the officers left, Praissman discovered a naked
man standing in the laundry room of the apartment building
and wearing Praissman's watch. Praissman immediately
called the police. Praissman later identified other items the
officers found in the laundry room with the man as items
missing from his apartment. At trial, Praissman identified
the man he saw in the laundry room as Kaneaiakala.
Kamanao testified that on January 24, 2015, he had responded
to a call regarding an attempted burglary at the apartment
with Officer Hose and returned that same day in response to a
call regarding a naked man in the building's laundry
room. Kamanao testified that, along with clothing and some of
Praissman's missing items, the officers also found a
kitchen mitt, pair of scissors, pair of pliers, knife, dental
floss, and a screwdriver on the washing machine near
Kaneaiakala. At trial, Officer Kamanao identified Kaneaiakala
as the man he saw in the laundry room.
recording of Laraway's phone call to 911 on the day of
the incident was also introduced and played for the jury.
jury found Kaneaiakala guilty as charged of one count of
Burglary in the First Degree in violation of HRS §
708-810(1)(c). On September 20, 2016, the circuit court
entered a Judgment of Conviction and Sentence ("circuit
court judgment") sentencing Kaneaiakala to a ten-year
term of imprisonment with a mandatory minimum sentence of
three years and four months as a repeat offender. Kaneaiakala
timely appealed from the circuit court judgment to the ICA.
appeal to the ICA, Kaneaiakala argued the circuit court erred
by denying his motion to suppress because the field show-up
was impermissibly suggestive and Laraway's identification
of Kaneaiakala was unreliable. Kaneaiakala also argued there
was insufficient evidence for the State to convict him of
first degree burglary because the State did not present
substantial evidence that Kaneaiakala burglarized the
response, the State conceded the show-up procedure was
impermissibly suggestive. The State argued, as it did in
opposition to the motion to suppress, that Laraway's
identification was nevertheless admissible because it was
reliable based on the totality of the circumstances. The
State maintained that based on the totality of the
circumstances test set ...