State v. Gabriel

• Decision Date: 29 April 2022
• Docket Number: CAAP-19-0000609
• Citation: 151 Hawai‘i 130,508 P.3d 1216 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Bradley GABRIEL, Defendant-Appellant, and Chynna Robello-Passi and James Malgana, Defendants-Appellees
• Court: Hawaii Court of Appeals

151 Hawai‘i 130

508 P.3d 1216 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v. Bradley GABRIEL, Defendant-Appellant,andChynna Robello-Passi and James Malgana, Defendants-Appellees

NO. CAAP-19-0000609

Intermediate Court of Appeals of Hawai‘i.

April 29, 2022

On the briefs:

Randal I. Shintani, for Defendant-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, for Plaintiff-Appellee.

(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

MEMORANDUM OPINION

Defendant-Appellant Bradley Gabriel (Gabriel ) appeals from the July 30, 2019 "Judgment of Conviction and Sentence; Notice of Entry" (Judgment of Conviction and Sentence ) entered by the Circuit Court of the First Circuit (Circuit Court ).¹ A jury found Gabriel guilty of one count of Burglary in the First Degree, in violation of Hawaii Revised Statutes (HRS ) § 708-810(1)(c)(2014).² Gabriel was sentenced to ten years incarceration, to run concurrent with any other sentence currently being served.

The complaining witness's home surveillance camera captured two videos of the burglary, which occurred on November 27, 2018. The key issue at trial was the identity of the burglars. Two police officers, whose testimony was admitted as lay witness opinion testimony under Hawaii Rules of Evidence (HRE ) Rule 701, identified Gabriel as one of the individuals in one of the surveillance videos and a still frame photograph taken from that video.

On appeal, Gabriel raises the following points of error: (1) the trial court erred in allowing Honolulu Police Department (HPD ) officer Garret Maekawa (Officer Maekawa ) and officer Darren Soto (Officer Soto ) to testify as to the identity of Gabriel in a surveillance video and a photograph taken from the video; (2) the trial court erred and abused its discretion in its HRE Rule 403 analysis in allowing the police officers' identification testimony; and (3) the trial court erred in failing to give an eyewitness identification instruction to the jury.

Given the evidence of the police officers' prior interactions with Gabriel and the Circuit Court's limiting instructions to the jury, the Circuit Court did not err in admitting Officer Soto's and Officer Maekawa's lay opinion testimony as to the identity of Gabriel through the surveillance video and photograph. We therefore affirm.

I. Background

Plaintiff-Appellee State of Hawai‘i (State ) charged Gabriel by felony information with Burglary in the First Degree, alleging that "[o]n or about November 27, 2018, ... [Gabriel and co-Defendants] Chynna Robello-Passi [(Robello-Passi )] ... and James Malgana [(Malgana )] did intentionally enter unlawfully ... the residence of Jason Hirata ... with intent to commit therein a crime against a person or property rights ... in violation of Section 708-810(1)(c) of the Hawaii Revised Statutes."³

On May 20, 2019, Gabriel filed a motion in limine to exclude, among other things, "lay testimony by any police officer attempting to identify [Gabriel] and based on video or photographs in this case" because "[s]uch identification evidence is unfairly prejudicial and invades the province of the jury to make factual determinations based on observation of evidence." Gabriel asserts the record does not support why the police officers' identification would be more correct than the jury's when the police officers' familiarity with Gabriel is based only on encounters with Gabriel in the past. The jury can determine from the evidence the identification of the burglar; thus, the police officers' identification testimony lacks probative value.

On the same day, the State filed a motion in limine and requested, inter alia , the trial court to allow identification testimony by Officer Maekawa and Officer Soto pursuant to HRE Rule 701, or require a hearing on admission of such testimony prior to trial.

At the motions in limine hearing on May 28, 2019, the Circuit Court indicated it would hold an HRE Rule 104⁴ hearing ( Rule 104 Hearing ) before trial on the issue of identification of Gabriel. On May 29, 2019, after the Rule 104 Hearing and argument, the Circuit Court concluded that the identification testimony of Officer Soto and Officer Maekawa identifying Gabriel as one of the burglars in a surveillance video and photograph was admissible. The Circuit Court also concluded, after an HRE Rule 403 balancing analysis, that the probative value of the police officers' testimony was not substantially outweighed by the danger of prejudice. The Circuit Court advised it would issue a limiting instruction that "the jury can't draw any adverse inferences from the contacts with the law enforcement."

Furthermore, in settling jury instructions, the parties agreed that the Circuit Court would issue a limiting instruction as to the identification testimony and an instruction pertaining to the credibility of witnesses.

On May 29, 2019, the jury found Gabriel guilty of Burglary in the First Degree. On July 30, 2019, the Circuit Court entered the Judgment of Conviction and Sentence.

II. Discussion

A. The Circuit Court did not err in allowing Officer Maekawa and Officer Soto to give lay opinion testimony identifying Gabriel in a surveillance video and photograph.

In his first point of error, Gabriel contends the trial court erred in allowing Officer Soto and Officer Maekawa to offer lay opinions identifying Gabriel as the individual in a surveillance video and photograph when the "high-def" surveillance video contained an obscured, but not grainy, depiction of the person therein. Gabriel argues that because the surveillance video was "not of poor quality[,]" the Circuit Court's admission of the police officers' lay testimony identifying him infringed upon the province of the jury, as the trier of fact, to determine for itself the identity of the individual in the surveillance video and photograph.⁵

In turn, the State argues that HRE Rule 701, regarding lay witness testimony, is materially identical to its federal counterpart and that Hawai‘i courts should look to federal case law in construing this Hawai‘i rule. The State contends federal courts have interpreted Federal Rules of Evidence (FRE ) Rule 701 as permitting lay opinion identification testimony from police officers so long as certain factors are met, and that the relevant factors were met in this case such that the Circuit Court properly allowed the police officers to identify Gabriel from the surveillance video and photograph evidence.

In reviewing the Circuit Court's admission of the police officers' identification testimony, we consider the following:

[D]ifferent standards of review must be applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue. When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. However, the traditional abuse of discretion standard should be applied in the case of those rules of evidence that require a "judgment call" on the part of the trial court.

Ching v. Dung, 148 Hawai‘i 416, 427, 477 P.3d 856, 867 (2020) (quoting State v. West, 95 Hawai‘i 452, 456-57, 24 P.3d 648, 652-53 (2001) ). "A trial court's determination that evidence is ‘relevant’ within the meaning of HRE ... Rule 401 (1993) is reviewed under the right/wrong standard of review." Id. (quoting State v. St. Clair, 101 Hawai‘i 280, 286, 67 P.3d 779, 785 (2003) ).

Our analysis begins with HRE Rule 701, which provides:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

The commentary for HRE Rule 701 states as follows:

This rule is identical with Fed. R. Evid. 701.^[6] The rule retains the common-law requirement that lay opinion be based upon firsthand knowledge, McCormick § 10, but liberalizes the traditional doctrine of "strict necessity," which allowed such testimony only where "all the facts cannot be placed before the jury with such clearness as to enable them to draw a correct inference...." Tsuruoka v. Lukens, 32 Haw. 263, 264 (1932). The present rule adopts in its place the more liberal "convenience" test, McCormick § 11, allowing such testimony when it is "helpful" to the trier of fact in determining or clarifying facts in issue.

...

Several considerations support substitution of the "convenience" standard for the "strict necessity" test. As the Advisory Committee's Note to Fed. R. Evid. 701 puts it: "[N]ecessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration." The committee also cited the "practical impossibility" of distinguishing fact from opinion.

The danger that such liberalization might open the door to factually unsupported, conjectural, or biased inferences is averted by the explicit requirement of firsthand knowledge, by implicit judicial discretion under the rule to exclude opinions for lack of "helpfulness," and by express judicial discretion under Rule 403 ... to exclude because of the danger of prejudice, confusion, or misleading the jury. The adversary system itself provides still another safeguard, allowing detailed cross-examination on the factual bases of such opinions.

(Emphasis added.)

Because HRE Rule 701 is materially similar to FRE Rule 701, case law interpreting the federal rule is persuasive authority in interpreting HRE Rule 701. See State v. Abrigo, 144 Hawai‘i 491, 500 n.14, 445 P.3d 72, 81 n.14 (2019) ("Federal cases interpreting the [FRE] serve as ‘persuasive authority in interpreting similar provisions of the [HRE].’ " (second alteration in original) (citation omitted)).

Gabriel cites United States v. LaPierre, 998 F.2d 1460 (9th Cir. 1993),...