State v. Was in Possession Koma Kekoa Texeira, SCAP-18-0000632

CourtSupreme Court of Hawai'i
Writing for the CourtOPINION OF THE COURT BY POLLACK, J.
Citation465 P.3d 960
Decision Date19 June 2020
Docket NumberSCAP-18-0000632
Parties STATE of Hawai‘i, Plaintiff-Appellee, was in possession Koma Kekoa TEXEIRA, Jr., Defendant-Appellant, and Clayton Kalani Kona, Defendant-Appellee.

465 P.3d 960

STATE of Hawai‘i, Plaintiff-Appellee,
was in possession
Koma Kekoa TEXEIRA, Jr., Defendant-Appellant,
and
Clayton Kalani Kona, Defendant-Appellee.

SCAP-18-0000632

Supreme Court of Hawai‘i.

JUNE 19, 2020


Craig A. De Costa, Daniel G. Hempey, Lihue, for appellant

Tracy Murakami, for appellee

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY POLLACK, J.

The defendant in this case was convicted of murder in the second degree. At trial, he sought to introduce evidence tending to show that a third-party committed the offense, but the trial court excluded the evidence. This appeal contends that the evidence was improperly excluded. The defendant also challenges the trial court's admission into evidence of a confession letter allegedly written by him because of its late disclosure to the defense, arguing that the State had control over the letter through a cooperating co-defendant nine months before the disclosure was made. Lastly, the defendant argues that DNA results showing his presence at the crime scene were improperly admitted at trial, as the State failed to show that the instruments used to conduct the DNA analyses were operated in compliance with the manufacturer's recommendations.

Upon review, we hold that the timing of the State's disclosure did not require the exclusion of the letter at trial. We also conclude that a sufficient foundation to admit the results of the DNA analyses was established to allow their admission into evidence. Finally, we hold that third-party culpability evidence was erroneously excluded, but the error was harmless beyond a reasonable doubt under the circumstances of this case.

I. BACKGROUND

A. Arrest and Pre-Trial Motions

On the night of October 31, 2016, Jon Togioka was fatally shot by a .22-caliber firearm near Hanapepe on the island of Kaua‘i. Kaua‘i Police Department (KPD) officers later arrested Koma Texeira Jr., Trish Flores, Brandon Pagala, Robert "Bobby" Dela Cruz, and Clayton Kona in connection with Togioka's death. Texeira was subsequently indicted for murder in the second degree in violation of Hawai‘i Revised Statutes (HRS) § 707-701.5,1 carrying or use of a firearm in commission of a separate felony in violation of HRS § 134-21,2 and two counts of ownership of possession prohibited in violation of HRS § 134-7(b).3 Kona was also charged in the same indictment with multiple offenses.4 Prior to trial, Kona entered into a plea agreement with the State in which he pleaded

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guilty only to hindering prosecution in the first degree in violation of HRS § 710-1029 and ownership or possession prohibited in violation of HRS § 134-7(b), in exchange for, inter alia, testifying at hearings, trials, re-trials following appeal, or other proceedings connected with Togioka's death.

1. Motion to Determine Voluntariness of Confession Letter Allegedly Written by Texeira

On February 13, 2018, the State filed a motion in the Circuit Court of the Fifth Circuit (circuit court) to determine the voluntariness of statements that Texeira allegedly wrote in a letter while in jail.5 In a declaration accompanying its motion, the prosecutor stated that Texeira wrote a letter saying he shot Togioka in self-defense and gave that letter to Kona.6 Texeira filed a memorandum in opposition in which he argued, inter alia, that the State had violated Hawai‘i Rules of Penal Procedure (HRPP) Rule 16 because the State had not produced the letter to the defense until February 9, 2018, which was one month before trial and 280 days after the State was informed of its existence.7 Texeira maintained that on May 5, 2017, Kona gave a statement to KPD in which he stated that Texeira wrote two letters confessing to Togioka's murder while they were both in jail. Subsequently, Kona's attorney discussed the contents of the letter purportedly written by Texeira in a May 19, 2017 interview with investigating officers. Accordingly, Texeira argued that the State was aware of the letter and its nature on that date.

Additionally, Texeira contended that Kona was negotiating a plea deal prior to his interviews and thus was an agent of the State before May 19, 2017. Because the letter was in the possession of a State agent as of May 19, 2017, Texeira argued, the State had an obligation to obtain the letter in a timely manner and disclose its contents to the defense. Alternatively, Texeira maintained that Kona became a state agent as soon as he entered into a plea deal on June 2, 2017, and thus the State had control over the letter at that time. The State's failure to produce the letter until a month before trial was a violation of HRPP Rule 16, Texeira concluded, and therefore the State should be precluded from introducing the letter into evidence.

The State responded that it provided the transcript of Kona's interview to the defense on May 23, 2017, and provided the second letter allegedly written by Texeira upon receiving it and thus did not violate

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HRPP Rule 16(b)(1)(ii). The State further argued that Kona was not a government agent under its control.

On February 27, 2018, the circuit court heard arguments and testimony on the State's motion. In addition to the arguments made in his memorandum in opposition, Texeira contended that he did not write the letter and that it was actually written by Kona. Texeira maintained that the signature was suspect because it was at the top of the page and had hesitation marks that indicated it was someone trying to copy a signature. Texeira also maintained that there was no way to determine the letter's authenticity or have fingerprint or handwriting analysis conducted because it was too close to trial to retain an expert, and that he should not be compelled to choose between a fair trial and his right to a speedy trial. The State responded that it provided the letter as soon as Kona's attorney provided it to the State, and that Kona would testify during the hearing as to the letter's authenticity.

Kona testified at the hearing that, after being arrested in connection with the death of Togioka, he had been placed in the same cell as Texeira in November 2016. During this time, Texeira wrote a letter confessing to the murder and stating that Kona had nothing to do with it. Kona said that he personally saw Texeira write and mail the letter to Texeira's attorney. According to Kona, this letter was apparently not useful for Kona's defense, so Texeira wrote a second letter. Kona stated that he also saw Texeira write the second letter and that he did not force him to write the letter. Texeira gave him a copy of the second letter, which Kona gave to his own attorney. When shown a copy of the second letter, Kona said that it was a true and accurate copy of the letter he saw Texeira write. He believed the second letter was written about a month after he had been arrested. Kona further testified that neither the police nor the prosecution asked him to get Texeira to confess to Togioka's murder and he told the State about the letter prior to signing a plea deal on June 2, 2017.

Following the hearing, the circuit court issued an order granting the State's motion to determine voluntariness. The court found that in December 2016, Texeira voluntarily wrote a second letter, witnessed but not directed by Kona, after discovering that his first letter would not help Kona. The court found Kona was not an agent of the State when Texeira gave him the second letter and was not directed to obtain a confession from Texeira. The court thus permitted the second letter to be admitted into evidence.8 The court did not rule upon Texeira's contention that the second letter had been untimely disclosed.

2. Texeira's Motion in Limine to Exclude DNA Evidence

Prior to trial, Texeira filed a motion in limine seeking the exclusion of DNA evidence at trial based on the unreliability of the procedures that the State's DNA expert had used to obtain the DNA results. At the hearing, the State called Emily Jeskie, an employee of Sorenson Forensics (Sorenson), a private DNA testing laboratory that had conducted DNA tests on buccal swabs and cigarette butts recovered at the crime scene.9 Jeskie testified that each Sorenson lab employee is proficiency tested every six months by an outside agency and Sorenson is accredited by the American Society of Crime Laboratory Directors International (ASCLD) accreditation board. Jeskie explained that the accreditation process entails ASCLD auditing the laboratory, ensuring that the tests are performed to standard, and verifying that the employees are competent to perform the tests. The competency testing is conducted by Collaborative Testing Services (CTS). Sorenson has never lost its accreditation, been placed on probation, or had its accreditation

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withheld or suspended, Jeskie testified.

Jeskie further explained that each test is subject to a "control," which confirms that the testing process worked correctly and did not have contamination. Sorenson has positive controls used in each step of its testing process to indicate what...

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