State v. Tetu, SCWC–13–0003062
| Decision Date | 05 December 2016 |
| Docket Number | SCWC–13–0003062 |
| Parties | State of Hawai'i, Respondent/Plaintiff–Appellee, v. Robert Tetu, Petitioner/Defendant–Appellant. |
| Court | Hawaii Supreme Court |
Stuart N. Fujioka, Honolulu, for petitioner.
Donn Fudo, Honolulu, for respondent.
Opinion
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.
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 4014 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 4036 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.
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.
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.
Tetu testified that...
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