State v. Cabinatan, SCWC–11–0000550.
| Citation | 132 Hawai'i 63,319 P.3d 1071 |
| Decision Date | 30 January 2014 |
| Docket Number | No. SCWC–11–0000550.,SCWC–11–0000550. |
| Court | Supreme Court of Hawai'i |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Shaun L. CABINATAN, Petitioner/Defendant–Appellant. |
Jon N. Ikenaga, for petitioner.
Sonja P. McCullen, for respondent.
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 Kimo Moore allegedly participated in a burglary of a Makakilo home and the unauthorized entry into a van at a separate location.1
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, No. CAAP–11–0000550, 2012 WL 6720380, at *4 (Haw.App. Dec. 27, 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.
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.
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)2 (Count 1), UEMV in the First Degree in violation of HRS § 708–836. 53 (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 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...
To continue reading
Request your trial
-
State v. Kaneaiakala
...the five factors delineated in Padilla for a judge to consider in addressing admissibility.After 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 ......
-
State v. Correia
...is a reasonable possibility that erroneous jury instructions contributed to the conviction. See State v. Cabinatan, 132 Hawai‘i 63, 78, 319 P.3d 1071, 1086 (2014) (vacating convictions and remanding for new trial where the court concluded "there is a reasonable possibility that the instruct......
-
State v. Mews
...argument is without merit. As the court made clear, Cabagbag was intended for prospective application only. State v. Cabinatan, 132 Hawai‘i 63, 319 P.3d 1071 (2014). The jury was instructed and verdict was rendered in this case two months before the opinion in Cabagbag was issued and, in an......