State v. Cabagbag

Decision Date17 May 2012
Docket NumberNo. SCWC–30682.,SCWC–30682.
Citation277 P.3d 1027,127 Hawai'i 302
Parties STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Steve C. CABAGBAG, Jr., Petitioner/Defendant–Appellant.
CourtHawaii Supreme Court

John M. Tonaki, public defender, (James S. Tabe, deputy public defender on the briefs), for petitioner.

Stephen K. Tsushima, deputy prosecuting attorney, for respondent.



Petitioner/DefendantAppellant Steve C. Cabagbag, Jr. (Petitioner) filed an application for writ of certiorari (Application) on October 11, 2011 in this court, seeking review of the July 13, 2011 judgment of the Intermediate Court of Appeals (ICA), filed pursuant to its June 27, 2011 Summary Disposition Order,1 State v. Cabagbag, No. 30682, 2011 WL 2547987 (App. June 27, 2011) (SDO), affirming the Judgment of Conviction and Probation Sentence filed by the circuit court of the first circuit (the court).2


(By: ACOBA, J., with whom all justices concur)

It is concluded unanimously that (1) in criminal cases, the circuit courts must give the jury a specific eyewitness identification instruction whenever identification evidence is a central issue in the case, and it is requested by the defendant,3 (2) a circuit court may, in the exercise of its discretion, give the instruction if it believes the instruction is otherwise warranted in a particular case; and (3) the instruction set forth in this opinion is adopted as a model charge.


Petitioner allegedly stole a truck from a storage facility on February 3, 2010, as well as several tools from a construction site on February 18, 2010. On February 22, 2010, Respondent/PlaintiffAppellee State of Hawai‘i (Respondent) charged Petitioner by felony information with two counts: (1) Unauthorized Control of a Propelled Vehicle, HRS § 708–836 (Supp.2010)4 ; and (2) Theft in the Second Degree, HRS § 708–831 (Supp.2010)5 . The court held a two-day jury trial that began on May 18, 2010.


In its opening statement, Respondent stated, in relevant part, that the evidence would show that Honolulu Police Department (HPD) Officer Eutiquito Tomimbang (Officer Tomimbang) identified Petitioner as the man he saw driving a stolen truck that was discovered with stolen tools. The defense maintained that Officer Tomimbang's identification was unreliable, and claimed that Officer Tomimbang would only testify that "he s[aw] a male in there, a local male, short dark hair. That's the description. That's what he sees. It's dark, clearly at 1:07 in the morning."


During trial, the jury heard the pertinent evidence that follows. Leak Master Roofing and Waterproofing ("Leak Master") owned a white Ford truck with the license plate number 221–TRD. Around 3:30 p.m. on January 29, 2010, Matthew Kotar (Kotar), Leak Master's general manager, parked the truck for the weekend in the company's storage "cave" at Waikele Self–Storage ("Waikele") in Honolulu.6 Kotar and his foreman were the only persons who had access to the truck's keys, and only Kotar was authorized to drive the vehicle.

On February 3, 2010, Kotar received a phone call from Waikele. Kotar was told that the truck ran through the front entrance of the facility. Normally, Waikele requires all persons driving vehicles out of the facility to stop and provide identification. When Waikele's security guards asked the person driving Leak Master's truck to stop, the driver sped off.

After receiving the phone call, Kotar went to Waikele to verify that his truck was no longer in its "cave." Kotar determined that the truck was missing. After contacting all of Leak Master's employees to ensure that none had taken the truck without his knowledge, Kotar filed a police report stating that the truck had been stolen. Kotar heard nothing from the police regarding the truck until February 18, 2010.

Around 1:00 a.m. on February 18, 2010, Officer Tomimbang was on patrol in the Pearl City Highlands area. At 1:12 a.m. he learned that a caller had reported that the "cattle gate" (gate) at Newtown Recreation Center (recreation center), which is usually kept closed, was open. Another officer, Officer Enrico Domingo (Officer Domingo), was the first to arrive at the scene. Officer Tomimbang arrived shortly after. He noticed that the gate was completely open and that there was only one lock on the padlock even though the gate is usually secured with two locks.

Having verified that the recreation center, which is located approximately 50 yards from the gate, was secured, Officer Tomimbang and Officer Domingo proceeded to the construction area, approximately 20 yards from the gate. At the time, the construction area was occupied by the Frank Coluccio Construction Company (Frank Coluccio Construction). Officer Tomimbang noticed that two of the containers used to store equipment in the construction area were open. Officer Tomimbang asked dispatch to contact a representative from the company to let them know that there was a possible break-in.

Around 1:40 a.m., Officer Tomimbang was standing near the office trailer at the construction site when he heard the sound of a large truck coming up Ka‘ahele Street, which is adjacent to the gate. Officer Tomimbang assumed the truck had been sent by Frank Coluccio Construction, so he walked toward the fence near Ka‘ahele Street. From his location near the fence, Officer Tomimbang could observe Ka‘ahele Street. A street light lamp was located on the side of the street where Officer Tomimbang was standing. Another street lamp was located on the opposite side of the street.

Officer Tomimbang saw the truck driving slowly up Ka‘ahele Street. He testified that, although his flashlight was off, he got a good look at the truck driver's face because the street was well-lit and the driver stuck his face out the window and looked in the officer's direction. Officer Tomimbang watched as the truck continued to drive up Ka‘ahele Street and turned right on Lulu Street. The truck then stopped and parked on Lulu Street, approximately 30 feet from Ka‘ahele Street. During trial, Respondent introduced several photographs that purportedly depicted the way Ka‘ahele Street would have appeared to Officer Tomimbang on February 18, 2010. Defense counsel objected on the ground that the photos were misleading because they were taken with a camera that had its flash setting "on," and therefore may have depicted more light than was available to Officer Tomimbang on the night in question. The court admitted the photographs.

When Officer Tomimbang saw the truck continue on to Lulu Street, he walked toward a location behind the fence from which he could get a better view of the truck. Standing just behind the fence, about 60 to 70 yards from where the truck was parked, Officer Tomimbang saw a man exit the truck's driver's side door and head toward the construction site. The man approached the gate, closed it, and continued walking toward Officer Tomimbang. Once the man was within 20 feet, Officer Tomimbang shone his flashlight toward the man. According to Officer Tomimbang, the man froze for a few seconds, looked straight at him, and then took off running. Officer Tomimbang testified that although it was dark because there was "no lighting" where he was standing, he saw the man's face clearly and noticed that it was the same man who had driven by earlier on the truck. During cross-examination, defense counsel asked Officer Tomimbang about the lighting conditions in the area. Specifically, defense counsel asked Officer Tomimbang about the sources of lighting, the strength of lighting, and whether the lights were functioning. Officer Tomimbang testified that although he was unsure as to the specific sources of lighting, "the street was pretty bright from the street lighting." Officer Domingo, who was near Officer Tomimbang, testified that he did not get a good look at the man.

As soon as the man sped off, Officer Tomimbang said, "Hey, police. Stop." Officer Tomimbang jumped over the fence and followed the man down Lulu Street. The man then dove into some hedges that led into a residential neighborhood. Officer Tomimbang decided not to follow and instead asked several other officers who had since arrived at the scene to form a perimeter to search the neighborhood. Officer Tomimbang believed that the man would not be able to escape because the neighborhood was surrounded by steep embankments. Officer Tomimbang then went over to the truck and asked dispatch to run its license plates. Dispatch indicated that the truck had been stolen.

Several other officers arrived within a few minutes. Approximately eleven officers canvassed the neighborhood. Officer Tomimbang described the suspect to them as a "local male, dark clothing," or possibly "local male, maybe short dark hair, dark clothing."

Sergeant Michael Kahikina was one of the officers who participated in the search. As he was walking along the back of a residence in the neighborhood, he flashed his light on a drainage ditch and observed that a man was lying sideways on the ditch. Sergeant Kahikina said, "Hey, police. Let me see your hands. Don't move."

There was conflicting testimony during trial regarding exactly what happened next. Sergeant Kahikina first testified that the man in the ditch tried to run and had to be tackled. According to Sergeant Kahikina, the man then stated, "I never do nothin'," and became compliant. On cross-examination, however, Sergeant Kahikina acknowledged that the man had not attempted to run but rather had tried to get up. Sergeant Kahikina put his hand on the suspect and held him down. Sergeant Kahikina then began calling out that he had apprehended a suspect. The suspect was wearing a brown shirt, dark blue jeans, and "possibly a hood."

Officer Tomimbang identified the suspect as the man whom he had seen driving the truck earlier and who had walked toward the construction area at the recreation center. In court,...

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