State v. Texeira, Jr. ( 2020 )

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
19-JUN-2020
12:36 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAI‘I,
Plaintiff-Appellee,
vs.
KOMA KEKOA TEXEIRA, JR.,
Defendant-Appellant,
and
CLAYTON KALANI KONA,
Defendant-Appellee.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CAAP-XX-XXXXXXX; CR. NO. 5PC161000398)
JUNE 19, 2020
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
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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 Hanapēpē on the
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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
1
HRS § 707-701.5(1) (2014) provides as follows:
(1) Except as provided in section 707-701, a person commits
the offense of murder in the second degree if the person
intentionally or knowingly causes the death of another
person.
2
HRS § 134-21 (2011) provides in relevant part as follows:
(a) It shall be unlawful for a person to knowingly carry on
the person or have within the person’s immediate control or
intentionally use or threaten to use a firearm while
engaged in the commission of a separate felony, whether the
firearm was loaded or not, and whether operable or not[.]
3
HRS § 134-7 (2011) provides in relevant part as follows:
(b) No person who is under indictment for, or has waived
indictment for, or has been bound over to the circuit court
for, or has been convicted in this State or elsewhere of
having committed a felony, or any crime of violence, or an
illegal sale of any drug shall own, possess, or control any
firearm or ammunition therefor.
4
Kona was charged as an accomplice to murder in the second degree
in violation of HRS § 707-701.5, carrying or use of firearm in commission of
separate felony in violation of HRS § 134-21, two counts of ownership or
possession prohibited in violation of HRS § 134-7(b), and place to keep
pistol or revolver in violation of HRS § 134-25.
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agreement with the State in which he pleaded 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
5
The Honorable Judge Randal G.B. Valenciano presided over all
proceedings in this case.
6
The letter stated that Togioka found a gun belonging to Texeira
under the driver’s seat of Texeira’s car and began threatening him with the
weapon. A struggle ensued and resulted in Texeira fatally shooting Togioka.
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its existence.7 Texeira maintained that on May 5, 2017, Kona
gave a statement to KPD in which he stated that Texeira wrote
7
HRPP Rule 16 (2012) provides in pertinent part as follows:
(b) Disclosure by the prosecution.
(1) Disclosure of Matters Within Prosecution’s
Possession. The Prosecutor shall disclose to the
defendant or the defendant’s attorney the following
material and information within the prosecutor’s
possession or control:
. . . .
(ii) any written or recorded statements and the
substance of any oral statements made by the
defendant, or made by a co-defendant if
intended to be used in a joint trial, together
with the names and last known addresses of
persons who witnessed the making of such
statements;
. . . .
(e) Regulation of Discovery.
(1) Performance of Obligations. Except for matters
which are to be specifically designated in writing by
defense counsel under this rule, the prosecution
shall disclose all materials subject to disclosure
pursuant to subsection (b)(1) of this rule to the
defendant or the defendant’s attorney within ten (10)
calendar days following arraignment and plea of the
defendant. The parties may perform their obligations
of disclosure in any manner mutually agreeable to the
parties or by notifying the attorney for the other
party that material and information, described in
general terms, may be inspected, obtained, tested,
copied or photographed at specified reasonable times
and places.
(2) Continuing Duty to Disclose. If subsequent to
compliance with these rules or orders entered
pursuant to these rules, a party discovers additional
material or information which would have been subject
to disclosure pursuant to this Rule 16, that party
shall promptly disclose the additional material or
information, and if the additional material or
information is discovered during trial, the court
shall also be notified.
(continued . . .)
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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
(. . . continued)
HRPP Rule 16 (2012) (some formatting omitted).
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the second letter allegedly written by Texeira upon receiving it
and thus did not violate 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
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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
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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
8
The court redacted two lines in the letter, starting with the
sentence “I lied to detectives.” Further, the court permitted the State to
reference that the first letter was written, but it excluded the contents of
any communications between Texeira and his attorney.
9
Jeskie, who testified via videoconference, stated that she had a
bachelor of science in molecular biology from Brigham Young University, had
participated in a six-month training program in forensic DNA casework, and
had testified in approximately 48 cases as an expert in DNA testing.
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Collaborative Testing Services (CTS). Sorenson has never lost
its accreditation, been placed on probation, or had its
accreditation 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 the results should be and if the control “doesn’t type
correctly,” then it shows there was a problem in the testing.
A second hearing on Texeira’s motion was conducted to
allow the State to supplement the record regarding the
reliability of the DNA evidence.10 Jeskie testified that every
machine used by Sorenson is required to be “validated” under the
Federal Bureau of Investigation’s (FBI) quality assurance
standards. Validation entails a study conducted to ensure that
the machine is reliable and its results are reproducible. The
validation process shows whether each test was done correctly
and if there was contamination. Validation is done at each step
of the testing to ensure that the control was passed. The FBI
quality assurance standards require Sorenson to validate its
equipment and train its employees using certain methods. Jeskie
explained that all employees are required to complete a standard
10
All of the witnesses at the second hearing testified via
videoconference.
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training program on the equipment and that the training program
and validation method Sorenson uses is reviewed as part of the
ASCLD accreditation process.
Each machine and piece of equipment is subject to
controls to ensure they are working properly and are regularly
maintained, Jeskie testified. Logs are kept of the maintenance
and if a machine is not in working order, it is taken out of
commission. The State introduced into evidence a certificate of
authenticity and a maintenance record for the machines used to
test the DNA evidence to show that they were in proper working
order at the time the analyses of the evidence in this case were
conducted. The maintenance record was a 48-page log that
detailed equipment maintenance on several machines dating as far
back as June 24, 2011, and through February 2018. The log
recorded daily, weekly, monthly, and annual maintenance,
performance checks, error corrections, adjustments, preventative
maintenance, calibrations, and time periods when the machines
were removed from and placed back into service.
The State called several other Sorenson employees that
were involved in analyzing the DNA evidence in this case. All
of the witnesses testified that the machines utilized to conduct
the DNA tests were in working order and that they conducted the
testing in compliance with Sorenson’s standard training program
and operating procedures. Several Sorenson employees testified
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that Sorenson did not itself manufacture any of the machines
they used and that they did not know the manufacturer’s
identity. The witnesses also testified that the machines were
not manufactured by ASCLD, CTS, or the FBI.
Texeira maintained that the DNA evidence should not be
admitted at trial because the State could not lay a proper
foundation establishing that the equipment used to conduct the
analyses produced accurate results, unless the user was trained
to operate it in the manner recommended by the machine’s
manufacturer. Since the State had not adduced any evidence that
the machines Sorenson used to analyze the DNA evidence were
operated in compliance with the manufacturer’s recommendations,
Texeira contended that none of the results were proven to be
reliable.
In its written order denying the motion, the circuit
court found that the Sorenson employees used valid and reliable
techniques to obtain DNA profiles, the instruments were in
proper working order, and the employees were trained to use, and
did use, accepted procedures. The court recognized Jeskie as an
expert in DNA testing and profiling and additionally found that
the use of DNA evidence to generate a DNA profile and identify a
person is reliable science, the DNA test results were relevant
to the issue of the identity of the perpetrator, and the results
would assist the trier of fact.
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B. Trial Proceedings
Leana Contrades, Kona’s girlfriend and the mother of
his daughter, testified that at the time of the events in
question she was living at Kona’s house along with five other
people, including Texeira. Contrades stated that at about 9:00
a.m. on October 30, 2016, she went to Wailua with Kona and
Roberta Bactad, a relative of Kona’s, and they returned to their
home sometime that evening. The next day, October 31, Kona
slept until about 6:00 p.m. Contrades testified that Texeira
attempted to speak to Kona several times that day but was unable
to do so while he was sleeping. When Kona woke up, she told him
that Togioka had stolen a cell phone from Kona’s house. Kona
was upset by this, and he asked her to “find out where [Togioka
was] and tell him to come over.” Contrades called Texeira on
Kona’s cell phone and told him that Kona wanted Togioka to come
to their house and “settle it.”
Togioka arrived at the house shortly after, and
Contrades heard Kona say, “Where’s the phone?” She saw Kona
“have [Togioka] against the wall, chest against the wall and his
hand behind his back,” while Togioka repeatedly said that he did
not steal the phone. Contrades then went into her bedroom, and
Kona came in upset and angry. According to Contrades, Texeira
entered the room and asked Kona, “So what do you want to do
about it?” and Kona said, “just get him out of here.” After
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this exchange, Kona, Contrades, and their infant daughter went
to a Halloween party around 7:00 p.m.11 They stayed at the party
until around 10:00 p.m., dropped Kona’s cousin off in Kekaha,
and then went home.12 Kona left for 20 minutes to return
Bactad’s car, which they had borrowed.
Contrades stated that Kona kept a firearm in the
house. Specifically, she saw one gun and three different types
of bullets in the house prior to October 31, 2016. Also, a
couple of days after October 31, Trish Flores and Brandon Pagala
came to Kona’s house around 3:00 a.m. Contrades described
Flores as “paranoid” and stated that she “didn’t seem herself.”
Kapena Wilson, a KPD police officer who investigated
Togioka’s murder, testified on behalf of the State. During
cross-examination, defense counsel asked, “do you know if Trish
Flores was arrested in connection with this case?” The State
objected on the grounds of “legitimate tendency,” arguing that
Texeira was “starting to put it on somebody else without any
11
Dina Akutagawa, who was living with Kona’s brother during October
and November 2016, testified that Kona was at the Halloween party from 8:00
to 10:00 p.m. At the beginning of the Halloween party, Akutagawa stated,
Kona had a scrape on his middle right hand knuckle which Kona said came from
punching Togioka.
12
Bactad testified that on October 31, 2016, Kona borrowed her car
around 7:00 p.m. and returned it around 10:30 p.m. Kona stayed at her house
until 11:00 or 11:30 p.m. and then went straight home. Texeira came to her
house while Kona was there but left after saying “he had something to do.”
Bactad testified that it would only take about ten minutes to walk between
her house and Kona’s, and that she knew Kona went straight home because she
talked to Contrades that evening.
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connection to this.” Defense counsel responded that Flores
“gave a fake motive and was arrested with .22-caliber bullets,”
which were the same caliber as the bullets that killed Togioka,
and Contrades had testified that Flores came over to Kona’s
house soon after the killing and was acting strangely. The
court sustained the objection but added that if Flores became a
suspect, Texeira could recall Wilson.
Brandon Pagala was also called as a witness by the
State. During cross-examination, defense counsel attempted to
ask Pagala about his arrest on November 2, 2016, but the State
objected, arguing “there’s been no established legitimate
tendency . . . . [h]e’s getting into the area of [Pagala] having
a firearm and bullets.” Defense counsel responded, “we’re not
saying he shot him. We’re saying he’s part of a group of people
covering up who shot him. And the fact that they had
.22-caliber bullets, which is the caliber used in this case, the
day after the body was found is relevant to show that.” The
State replied, “it’s already an inference that [] he’s been
arrested for something. But we don’t need to get into what the
reasons why he was arrested is.” The court ruled that Texeira
would be allowed to show “that [Pagala] was arrested,” but the
inquiry would have to end there.
Pagala testified that he had been friends with Kona
for over 18 years but did not hang out with him. He was friends
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with Flores, Pagala explained, and hung out with her regularly.
Defense counsel attempted to ask Pagala if “some people
fear[ed]” Flores or if she “can get violent,” but the court
sustained the State’s objection. Counsel argued that he should
be allowed to ask these questions:
Well, that all goes to the fact that these people do fear
certain people, and it’s not my client, and that those
people were involved with having .22 caliber bullets at the
time, had a problem with Jon Togioka, and all associated
with Clayton Kona, who was the one who punched Jon Togioka
before his death, and that if they’re -- so who they blame
is going to be away from their group and blame the new guy,
the smallest guy, the -- or the youngest guy anyway. And
that there are certain people who are feared -- my client’s
not one of them -- and that that’s why they would do all of
this.
The court ruled that defense counsel could ask Pagala if he was
involved in the conspiracy, and if Pagala admitted involvement,
then counsel could ask further questions.13
Dela Cruz testified that in October and November 2016,
he was actively using crystal methamphetamine. On October 31,
2016, Texeira asked Dela Cruz to ride with him to “go see []
Togioka.” Texeira told him to bring a bat, but he did not do
so. Dela Cruz rode in the front passenger side of Texeira’s
vehicle, and when they found Togioka he got into the backseat.
The three smoked methamphetamine and cigarettes before going to
Kona’s house. When they arrived, Texeira and Togioka went in,
but he did not after Kona told him not to.
13
Defense counsel commented that no one would admit they were in a
conspiracy, and counsel did not ask Pagala if he was in one.
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Texeira then drove the three of them to Burns Field,
an area near the airport in Hanapēpē. Togioka said he wanted to
go home, but Dela Cruz encouraged him to stay with them and
“just cruise.” Dela Cruz testified that around 8 or 9 p.m.,
Texeira and Togioka got out of the car; he stayed in because
“[Texeira] wanted to talk to [Togioka] only.” Dela Cruz turned
the stereo up loudly because he didn’t want to listen to the
conversation, but he was still able to hear Togioka say, “[I]
never do anything.” He then heard a gunshot coming from in
front of the vehicle towards the driver’s side, followed by two
or three more. Immediately after the first gunshot, Dela Cruz
heard Togioka yell “don’t shoot me” and “you shot me.” He saw
Togioka was face down on the ground, 15 to 20 feet in front of
the car. Dela Cruz admitted that he did not tell the police or
grand jury about Togioka’s statements prior to trial. He stated
that he did not shoot Togioka nor did he see Texeira shoot
Togioka.
Dela Cruz testified that he did not see Texeira or
Togioka with a gun when they exited the vehicle, but when
Texeira came back to the car he placed a “revolver with a long
barrel” on the driver side floor. They then drove away, and
Texeira told Dela Cruz that he shot Togioka because “he had to.”
Dela Cruz stated that he did not know Texeira was going to shoot
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Togioka and that he didn’t go to the police because he was
scared.
Kona testified that Texeira was living with him on
October 29, 2016, when Togioka came to his house. Togioka got
into a fight with a housemate that Kona broke up, but he later
learned that Togioka re-incited the fight away from Kona’s
house. This upset Kona because he thought he had settled
everything, so he asked Texeira to bring Togioka back to the
house. When asking him to do this, Kona admitted, he “probably”
said something along the lines of “I like shoot this fucker” to
Texeira. Kona testified that he told Texeira to bring Togioka
to the river behind his house. As he went to meet Texeira, he
received a text message from him stating, “I wouldn’t shoot just
yet. He get interesting things to say.” Kona testified that he
had a .22-caliber revolver belonging to Texeira on him at the
time, which he shot into the air. The shot scared Togioka, but
they settled their problems and went fishing together. Kona
stated that he put the gun on a shelf at his house.
On October 31, 2016, Kona woke up to learn that
Togioka was accused of taking a housemate’s phone. He doubted
that Togioka had the phone because they had been fishing
together all night. He asked Contrades to contact Texeira in
order for him to bring Togioka back to “clear up this phone
situation.” Texeira brought Togioka to the house and Togioka
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attempted to lie and say the phone was his, so Kona punched and
wrestled with him. Contrades broke up the fight, Kona stated,
and Texeira made Togioka leave the house. Texeira then asked
him “if I seen his gun or if I knew where his gun was,” and he
told Texeira where to find it. Later that evening at the
Halloween party, Texeira called Kona and asked what he wanted
done about Togioka. Kona testified that he said, “I don’t
care,” and hung up without giving any directions. Later, but
still at the Halloween party, he received a text message from
Texeira saying, “Aw pau,” which meant “done.” After the party,
he returned the car to Bactad’s house and then went home with
Texeira, who arrived at Bactad’s house around the same time.
Texeira “started to say something about the gun was–-misfired at
first,” Kona explained, but he cut Texeira off. Kona stated
that the revolver tends to “jam from time to time.”
Kona testified that he first learned that Togioka had
been killed on November 1, 2016. That day, Texeira told Kona
that he hid the gun under the hood of a white Ford truck on
Kona’s property. Kona retrieved the gun and hid it in a pipe
down by the river. Kona said that he didn’t initially go to the
police because he was afraid of Texeira. He was questioned by
the police on November 3, 2016, and denied any involvement with
Togioka’s death. Kona admitted that he lied to the officers;
specifically he told them that he hadn’t seen Togioka on October
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31, 2016, that he did not hit Togioka on October 31, 2016, and
that he did not own or possess a firearm and one was not on his
property. On November 4, 2016, after he had been arrested and
charged as an accomplice to the murder charge, Kona showed the
police where the firearm was hidden on his property. Kona
stated that he subsequently signed a plea agreement in which he
pled guilty to hindering prosecution in the first degree and
ownership or possession prohibited of a firearm. Kona admitted
that at the time he made the plea agreement he was facing a
possible life sentence, but the sentence was reduced to a
maximum of ten years; it ultimately could be five years or even
probation based on his cooperation with the State.
While he was incarcerated at Kauaʻi Community
Correctional Center (KCCC) with Texeira, Pagala, and two other
men, Kona stated that Texeira confessed to killing Togioka.
Texeira said that he, Togioka, and Dela Cruz were looking to buy
drugs but were unsuccessful. Texeira stated that he had asked
Togioka about the phone, but Togioka denied having it. Kona
testified that Texeira said that he then shot at Togioka but the
gun misfired, so Texeira said he was joking. Texeira told him
that he pulled the trigger again, shooting Togioka in the arm
and causing him to collapse to the ground. Texeira said that
Togioka yelled to Dela Cruz for help but Dela Cruz stayed in the
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car, and that he shot Togioka in the head. According to Kona,
Texeira told this story several times in a bragging manner.
Kona also testified that Texeira wrote two letters
containing these details, the first of which Texeira sent to his
attorney to help Kona in his case. Texeira was neither forced
nor told to write the letters, Kona said. Texeira gave him the
second letter, which Kona passed on to his own attorney.
Texeira knew this letter would be given to his attorney, Kona
testified, and Texeira wrote the letter “because he felt bad
that I was in there for something I didn’t even do.” Kona
stated that Texeira made the statements about killing Togioka
and wrote the letters before he had a cooperation agreement with
the prosecution.
During his direct examination, Pagala testified about
his confinement in the same cellblock as Texeira and Kona at
KCCC. While they were in jail, Texeira casually told him and
Kona several times what occurred. According to Pagala, Texeira
told him that he attempted to shoot Togioka but that the gun
would not fire. Texeira then told him that he shot Togioka in
the hand and head. After being shot in the hand, Togioka asked
Dela Cruz, who was in the car, for help. Pagala did not
remember when Texeira made these statements, but he told the
police about them several months after they were made. He never
discussed the killing with Kona, but he did see Texeira write
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letters about the case while in jail. Pagala said that he
couldn’t remember what he and Kona talked about when they were
in jail and only remembered some of the things Texeira said to
him. He stated that he does not have memory problems, but he
does forget things and did not remember saying some of the
things he said in his police interview.
Ronnie Schmidt, a friend of Kona, testified that he
was working on Kona’s house on October 31, 2016, around 4 or 5
p.m. He was working in an area behind the house where he found
a .22-caliber revolver on a shelf. He played with the gun
before wrapping it in a cloth and putting it down on a table
near his work crew. Texeira came out of Kona’s house looking
for the weapon, so he gave it to him. Texeira then got into a
car with Togioka and Dela Cruz, Schmidt stated, and the three
drove off.14
FBI Special Agent Edwin Nam testified as an expert in
the field of historical cell site analysis. He testified about
data collection techniques used to determine where a cell phone
was at various points in time, including cell tower coverage and
call detail records. Nam testified that he received Verizon
14
Flores was granted transactional immunity and was initially
expected to testify. During the course of trial the State filed an ex parte
motion to withdraw Flores’ immunity, which the court granted. Flores’
attorney then informed the court that she would invoke her right against
self-incrimination if she were called to testify.
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call detail records for phones belonging to Texeira and Kona and
text messages from Texeira’s phone number. The records, which
contained the contents of certain text messages, indicated that
a text message from Texeira’s phone was sent at 6:19 p.m. on
October 31, 2016, which said “[g]rab a bat.” There was also a
message sent from Texeira’s phone to Kona’s phone at 8:22 p.m.,
which said, “all pau.”15 KPD provided Nam with the latitude and
longitude of where Togioka’s body was recovered and the address
of Kona’s house. Based on phone calls made by Kona’s phone
between 7:55 and 9:10 p.m. on October 31, 2016, Kona’s phone
could not have been near Togioka’s body because it was near
Kona’s house. Nam further testified that Texeira’s phone was in
the same area as Togioka’s body at 7:54 p.m., and that it
remained there for at least 16 to 18 minutes and potentially up
to 30 minutes. By 8:55 p.m., Texeira’s phone was moving in a
way consistent with it leaving Kekaha and going towards Waimea.
Between 8:59 and 10:29 p.m., Texeira’s phone was in a position
consistent with it being at Kona’s residence based on its
interaction with cell phone towers.
Stephanie Regan, a crime scene and laboratory
supervisor for the KPD, testified that she was the KPD ParaDNA
15
Nam’s testimony regarding this message is consistent with Kona’s
testimony as to a message he received from Texeira that evening with the
exception that Kona stated the message was spelled, “Aw pau.”
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administrator, a position in which she conducts presumptive
screening of DNA evidence that gives a partial, but not full,
DNA profile.16 In addition to analyzing DNA evidence, Regan
stated that she conducts digital forensics for KPD, using the
Cellebrite Universal Forensic Extraction Device (UFED) to
extract digital evidence from cell phones, tablets, or external
drives.
Regan testified that she used Cellebrite UFED on a
blue colored Verizon Samsung Galaxy phone, identified as
Texeira’s phone. She was able to extract text messages,
including the contacts to whom the messages were sent and the
times of sending. On October 30, 2016, at 3:16 a.m., Texeira
sent, and later deleted, a text message to Kona’s phone stating,
“I get Jon”. This was followed by a further deleted message
from Texeira, “I bringing him,” and a response from Kona’s phone
stating, “To the back. Crispy.” Texeira sent, and deleted, a
text message to Kona at 3:30 a.m., “I wouldn’t shoot just yet.
He get interesting things to say.” On October 31, 2016, at 6:06
p.m., Texeira received a text message from a contact identified
in the phone as “Lei,” asking, “You know where [Togioka] stay?”
16
Regan testified that she has a bachelor’s degree in human
development and biology from Harvard University, was pursuing a master’s
degree in digital forensics from the University of Central Florida, was a
certified crime scene investigator, and had been with the KPD for
approximately three and a half years. The court recognized Regan as an
expert in the field of digital forensics.
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Regan stated that on November 2, 2016, she
investigated the scene of Togioka’s death. She observed several
cigarettes next to his body. In order to perform DNA testing,
these cigarettes, along with buccal swabs from Texeira, Kona,
Pagala, and Flores were collected. Regan personally conducted
ParaDNA tests on several of these cigarettes before sending the
cigarettes, Texeira and Kona’s buccal swabs, and a blood sample
from Togioka to Sorenson.
Regan stated that on November 4, 2016, she recovered a
.22-caliber revolver hidden in a drainage pipe by the river
behind Kona’s house. Six rounds, five of which were spent, were
recovered from the revolver. KPD was not able to test the
revolver to determine if it was the weapon used to kill Togioka.
Regan stated that she also observed an injury on Kona’s middle
right hand knuckle, which appeared to be a few days old as of
November 4, 2016.
Jeskie, the Sorenson employee who testified at the
pretrial HRE Rule 104 hearing, testified as an expert in DNA
forensic testing.17 She analyzed the cigarette butt found near
Togioka’s calf against a DNA reference from Texeira. The
cigarette butt had a single source of DNA, which was matched to
17
Defense counsel objected to Jeskie’s expert testimony at trial,
incorporating by reference the grounds asserted in Texeira’s motion in limine
to exclude DNA evidence.
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Texeira and no other individuals. Jeskie testified that the
odds that the DNA would come from someone other than Texeira was
one in 24.1 octillion for Caucasians, one in 4.16 octillion for
African-Americans, and one in 1.63 octillion for Hispanics.18
Even if Texeira was not Caucasian, African, or Hispanic, the
results would not change drastically. Jeskie stated that she
did not receive DNA samples from Dela Cruz or Flores. DNA tests
were also conducted on swabs taken from the .22-caliber
revolver. The grip area DNA result was inconclusive, Jeskie
stated, and the barrel end had no DNA. Jeskie did not analyze
the trigger, hammer area, ejector rod, or cylinder area of the
revolver.
Detective (Det.) Christopher Calio, an officer with
KPD, testified that no bullet casings were found at the location
of Togioka’s body. This was consistent with either a weapon
that did not eject its casings, such as a revolver, or with
someone picking up the casings. He recovered a firearm with the
help of Kona, but attempts to test fire it were unsuccessful.
Det. Calio also testified that on November 7, 2016, he assisted
Texeira with filling out some paperwork. The detective
identified a document as one of the forms that Texeira filled
18
Jeskie explained that an octillion is “a one with 27 zeros after
it.”
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out and signed at that time. Det. Calio knew that Texeira had
signed the document because he personally saw him do so.
Det. Eric Caspillo, an officer with the KPD, testified
that he went over some paperwork with Texeira shortly after
Texeira was arrested and observed him sign multiple forms. Det.
Caspillo identified two exhibits as copies of those forms and
stated that he recognized Texeira’s signature on the exhibits.
KPD Lieutenant (Lt.) Darren Rose also testified that he observed
Texeira sign and write on several documents. When asked to
compare Texeira’s signature on those documents with the one on
the second confession letter, Lt. Rose testified that they were
the same signature.
Lt. Christian Jenkins of the KPD testified that he
interviewed Texeira on November 4, 2016, at the police
substation in Waimea. A recording of the interview was played
before the jury. In the interview, Texeira stated that on
October 31, 2016, he went to Kona’s house in the morning, spent
the day with his grandfather, and stopped at Kona’s house again
around 9:00 or 10:00 p.m. He left because no one was home, and
he went to pick up his brother at “Shark’s Bay.” Texeira
estimated that he picked his brother up between 9:00 and 10:00
p.m. He took his brother back to Shark’s Bay on November 1,
2016, around 8:00 a.m., because his brother had left his car
there. Texeira stated that he had not been near the Burns
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Field-side of Shark’s Bay, but that instead he was on the other
side of the bay near the tennis courts.
Dr. Lindsey Harle, a forensic pathologist, conducted
the autopsy on Togioka. She observed a gunshot entry wound on
Togioka’s head and on his right forearm. The shooter was facing
Togioka when he shot him in the forearm, but the right forearm
wound was not fatal. Based on the nature of the forearm and
head wounds, Dr. Harle explained, she was unable to determine
how far away the gun had been from Togioka’s forearm or head
when he was shot. It could have been a distant shot, or it
could have been a close shot that passed through an intervening
material like a hat or a T-shirt. In addition to the gunshot
wounds, Togioka had multiple injuries across his body indicating
blunt force trauma and falling onto rocks. Dr. Harle stated
that the condition of Togioka’s body was consistent with his
having died between 8:00 and 9:00 p.m. on October 31, 2016.
At the end of the State’s case-in-chief, Texeira moved
for a judgment of acquittal, which the court denied. Texeira
also filed a Trial Memorandum Regarding Witness Trish Flores in
which he elucidated the evidence he would present to show there
was a legitimate tendency in the evidence to show that Flores
killed Togioka and was intimidating the other witnesses into
testifying falsely. Texeira cited statements that an individual
named Shannon Breen made to KPD officers, Kona’s statements to
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the police during interviews on November 3 and November 6, 2016,
Flores’ statements to the police during interviews on November 2
and November 5, 2016, certain evidence obtained by KPD, and
Flores’ actions around the time of the murder.
Texeira argued that, during a police interview, Breen
stated that she saw Flores and Pagala in Pagala’s residence on
October 31, 2016, around 3:00 a.m., and they were in possession
of a box of .22-caliber bullets. Breen heard Flores ask Pagala
if he had the bullets she “gave him,” and Pagala said that he
did. Breen further stated that she had heard that Togioka owed
Flores money, and that she saw Flores and Pagala watching a
video on Flores’ phone in which Flores had tied up a man who
owed her money and was shocking him for up to ten minutes at a
time with an electroshock weapon.
Texeira also proffered a statement Flores gave to the
police on November 2, 2016, in which she stated that Togioka had
assaulted a friend of hers on October 29, 2016. Flores told the
police that she learned on October 30 that Togioka had claimed
to be in a sexual relationship with her at some time in the past
and she had confronted him about his claims that day.
Additionally, Flores acknowledged she and Pagala had a .22-
caliber rifle in her car on either the night of October 31 or
November 1, but when pressed for details she claimed that she
could not recall which day it was and could not recall her
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whereabouts on the evening of October 31.19 Texeira also pointed
to the facts that Flores and Pagala were in possession of .22-
caliber bullets when they were arrested two days after Togioka’s
murder; KPD had observed Pagala arrive at a residence with
Flores on the morning of November 2 and Pagala had entered the
residence carrying a small caliber rifle; and Flores was a
person of interest in KPD’s investigation of Togioka’s death.
Texeira asserted that Flores gave a false alibi to the police
about her whereabouts on the evening of October 31, 2016, and
her whereabouts remained unverified.
19
Texeira pointed to the following exchange in particular:
DETECTIVE: You have a rifle. What caliber is it? Okay.
Let me say it again. Jon’s dead.
FLORES: Yeah
DETECTIVE: Now, before you say anything to me again, think
about it. Okay? I want you to think about it. Why is
Detective Calio asking you this? Why? Okay. I want you
to think hard because, right now, you’re – you’re kind of
cloudy on Monday evening, Halloween. I want you to think
about it, yeah. So do you need me to step out so you can
think?
FLORES: No.
DETECTIVE: Okay. Now, I just want to say to you again, Jon
Togioka is dead, you have a .22-caliber rifle in your car.
FLORES: I don’t know what for say. I don’t know. I don’t
know what for say.
DETECTIVE: Where were you the evening that Jon died?
After repeatedly saying she could not recall her whereabouts that evening,
Flores ultimately stated that she and Pagala were alone at her house.
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Texeira further noted that Kona or someone else would
call or go see Flores after “almost every incident with []
Togioka.” Texeira cited numerous incidents, including one Kona
described in a police interview on November 6, 2016, in which
Kona told the police that he called Flores immediately after
shooting at Togioka on October 29, 2016, and Flores said
something about wanting to shoot Togioka at that time.20
Finally, Texeira pointed to the fact that Flores had come to
Kona’s house the night after Togioka’s death and was acting
paranoid. These facts, Texeira contended, established a
legitimate tendency that Flores had killed Togioka, and he
should therefore be permitted to argue at trial that Flores was
the culprit.
Texeira moved to introduce at trial the proffered
evidence outlined in the memorandum. The State opposed the
introduction, maintaining that since the evidence did not
indicate Flores could have committed the crime, such evidence
was irrelevant. The court denied Texeira’s motion, finding that
there could be evidence of motive for Flores, but there was no
20
After telling the interviewing officers that he called Flores
immediately after firing the shot, the officers asked Kona what exactly she
said to him on the phone and specifically whether she said anything about
wanting to shoot Togioka. Kona responded that she “did say something there”
but could not recall the exact words, and he suggested that she was not
serious.
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direct connection. The court thus excluded the evidence Texeira
proffered.
Texeira recalled Det. Caspillo in his case-in-chief.
Det. Caspillo testified that there were no shell casings around
the body, which meant that the gun used could have been a
revolver or a rifle. The shooter also could have used a
semiautomatic pistol and then picked up the shells. Det.
Caspillo further testified that on November 3, 2016, he took
Kona’s statement, and Kona denied having a gun. On November 4,
2016, Det. Caspillo executed a search warrant on Kona’s
residence where he discovered one round of .22-caliber
ammunition, one .250 SAV caliber round, one 7-millimeter live
ammunition round, gun cleaning solution, a handgun holster, over
seven cell phones, three of which were associated with Kona, and
SIM cards in an interior bedroom. The defense rested after Det.
Caspillo’s testimony. Texeira moved for a judgment of
acquittal, which the court denied.
The jury found Texeira guilty of murder in the second
degree, carrying or use of firearm in the commission of a
separate felony, and ownership or possession prohibited.21
Texeira was sentenced to life imprisonment with the possibility
21
The parties stipulated that Texeira was prohibited from owning,
possessing, or controlling any firearms or ammunition, and that Texeira knew
of this prohibition.
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of parole with a mandatory minimum of 15 years in count one, 20
years imprisonment in count two, and an extended term of ten
years in count three, all terms to run concurrently.
C. Appellate Proceedings
Texeira appealed the July 25, 2018 Judgment and
Sentence of Conviction to the Intermediate Court of Appeals
(ICA). On August 26, 2019, Texeira filed an application for
transfer of the appeal to this court, which this court granted.
Texeira raises three points of error on appeal. He
argues that the circuit court erred by (1) admitting the
confession letter allegedly written by Texeira into evidence;
(2) admitting DNA evidence that allegedly placed Texeira at the
crime scene; and (3) excluding evidence that a third-party,
Flores, killed Togioka.
II. STANDARDS OF REVIEW
A. Questions of Law
Questions of law are reviewable de novo, under the
right/wrong standard. Ass’n of Apt. Owners of Royal Aloha v.
Certified Mgmt., Inc., 139 Hawai‘i 229, 233, 386 P.3d 866, 870
(2016) (citing Ditto v. McCurdy, 90 Hawai‘i 345, 351, 978 P.2d
783, 789 (1999)).
B. Findings of Fact
We review a circuit court’s findings of fact under a
“clearly erroneous standard.” State v. Rodrigues, 145 Hawai‘i
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487, 494, 454 P.3d 428, 435 (2019). “A finding of fact is
clearly erroneous when (1) the record lacks substantial evidence
to support the finding, or (2) despite substantial evidence in
support of the finding, the appellate court is nonetheless left
with a definite and firm conviction that a mistake has been
made.” State v. Kaneaiakala, 145 Hawai‘i 231, 240, 450 P.3d 761,
770 (2019).
III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting the
Second Confession Letter at Trial.
Under HRPP Rule 16, the State must disclose to the
defendant or defendant’s attorney “any written or recorded
statements . . . made by the defendant” that the State has in
its “possession or control.” HRPP Rule 16(b)(1)(ii). Texeira
contends that the State violated its obligations under HRPP Rule
16 by failing to timely produce the second confession letter to
the defense. He maintains the State had possession or control
of the letter as early as May 19, 2017, when it became aware of
the letter’s existence. Alternatively, Texeira argues that Kona
was an agent of the State after entering into a plea agreement
on June 2, 2017, and thus the State had control over Kona and
any documents in Kona’s possession, including the second
confession letter. Under either alternative, contends Texeira,
the fact that the second letter was not turned over to the
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defense until ten months later, which was one month before
trial, meant that the State had not met its HRPP Rule 16
obligations. Texeira notes that the circuit court did not
expressly rule on his contention that the letter had not been
timely disclosed to the defense pursuant to HRPP Rule 16.
This court discussed the prosecution’s disclosure
obligations under HRPP Rule 16 in State v. Moriwaki, 71 Haw.
347, 354, 791 P.2d 392, 396 (1990). In Moriwaki, the defendant
was charged with murder for fatally stabbing his sister’s
boyfriend. Id. at 349, 791 P.2d at 393-94. At trial, the
defendant argued that he acted in self-defense after the
boyfriend initiated an altercation with him. Id. at 350-51, 791
P.2d at 394-95. In rebuttal, the prosecution adduced evidence
of the boyfriend’s peaceful character. Id. The jury found the
defendant guilty of manslaughter. Id. at 349, 791 P.2d at 393-
94. Subsequently, the defendant moved to set aside the verdict
or, alternatively, for a new trial based on newly discovered
evidence and prosecutorial misconduct. Id. at 351, 791 P.2d at
394. The defendant presented testimony from his sister that
prior to testifying at trial she had told the prosecutor that a
week before her boyfriend’s death, he had assaulted a neighbor
whom she believed had been looking in her bedroom window. Id.
at 353-54, 791 P.2d at 396. The sister testified that the
prosecutor told her not to mention it so as to not make the
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boyfriend look bad. Id. The circuit court denied the
defendant’s motion. Id. at 351, 791 P.2d at 394.
On appeal, this court concluded that the prosecution
had a duty to disclose its knowledge of the incident of violence
under HRPP Rule 16, and the failure to make such a disclosure
was a violation of that rule. Id. at 355-56, 791 P.2d at 396-
97. Since the violation substantially prejudiced the
defendant’s self-defense argument and it was not discovered
until after the completion of trial, we vacated the defendant’s
conviction and remanded the case for a new trial. Id.In this case, it appears the State became aware of the
second confession letter during a May 5, 2017 interview of Kona
by investigating officers.22 The State disclosed the existence
of the letter and its nature to the defense on May 23, 2017,
when it provided defendant with the transcript of Kona’s
interview. Accordingly, Texeira was aware of the second
confession letter once he received Kona’s interview statements.
The State then came in physical possession of the letter upon
receiving it from Kona’s counsel, and it appears the State
promptly provided a copy of the letter to the defense upon
receipt.
22
At minimum, the State was aware of the letter after the May 19,
2017 interview in which Kona’s attorney discussed the contents of the letter
with investigating officers.
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Texeira contends, however, that the State had
constructive possession of the letter and therefore an
obligation to disclose it as soon as Kona began negotiating a
plea deal with the prosecution. The issue of whether the
prosecution is in possession of documents that are in the
possession of other individuals involved in the prosecution of a
defendant was considered, under Federal Rules of Criminal
Procedure Rule 16, in United States v. Smukler.23 No. 17-563-02,
2018 WL 3632148 (E.D. Pa. July 31, 2018). The defendant in
Smukler relied solely on the fact that the relevant witnesses
were cooperating with the prosecution to support the conclusion
that the witnesses, and thus the documents they possessed, were
under the prosecution’s control. Id. at *3. The Smukler court
23
Federal Rule of Criminal Procedure Rule 16 (2013) provides in
relevant part as follows:
(a) Government’s Disclosure.
(1) Information Subject to Disclosure.
. . . .
(B) Defendant’s Written or Recorded Statement. Upon a
defendant’s request, the government must disclose to
the defendant, and make available for inspection,
copying, or photographing, all of the following:
(i) any relevant written or recorded statement by
the defendant if:
• the statement is within the government’s
possession, custody, or control; and
• the attorney for the government knows--or
through due diligence could know--that the
statement exists[.]
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rejected this contention and found that the mere fact that a
witness was cooperating with the government did not place the
witness or any documents in the witness’s possession under the
government’s control.24 Id. at *3-4.
Whether the prosecution has constructive possession of
a document will depend on the factual circumstances of each
case. See United States v. Reyeros, 537 F.3d 270, 281-82 (3d
Cir. 2008) (noting that a case-by-case analysis is appropriate
when considering the prosecution’s constructive knowledge of
exculpatory evidence under Brady). In United States v. Graham,
for example, the Sixth Circuit considered the particular facts
of the case and concluded that the prosecution’s constitutional
24
The court in Smukler determined that the analysis for whether
documents in the possession of other government agencies or individuals
involved in the prosecution of a defendant were in the possession of the
prosecution under Brady v. Maryland, 373 U.S. 83 (1963), was applicable to
the prosecution’s possession of documents for purposes of Federal Rule of
Criminal Procedure Rule 16. No. 17-563-02, 2018 WL 3632148, at *3 (citing
United States v. Graham, 484 F.3d 413, 417-18 (6th Cir. 2007)).
The Brady rule has been incorporated into the Hawai‘i due process
jurisprudence and applied by this court. See, e.g., State v. Estrada, 69
Haw. 204, 215, 738 P.2d 812, 821 (1987). Under this rule, “[t]he suppression
by the prosecution of evidence favorable to the accused violates due process
where the evidence is material to guilt or punishment, regardless of the good
faith or bad faith of the prosecution.” State v. Fukusaku, 85 Hawai‘i 462,
479, 946 P.2d 32, 49 (1997) (quoting State v. Matafeo, 71 Haw. 183, 185, 787
P.2d 671, 672 (1990)). There is no contention by Texeira that the letter
provided favorable evidence to him. We do not, however, restrict our
interpretation of HRPP Rule 16 to the Brady standard. In some cases, for
example, due process will require the State to disclose evidence beyond the
disclosures required by the rules of penal procedure. See State v. Tetu, 139
Hawai‘i 207, 214, 386 P.3d 844, 851 (2016) (“[T]he HRPP Rule 16 discovery
right does not purport to set an outer limit on the court’s power to ensure a
defendant's constitutional rights.” (citing United States v. Yoshimura, 831
F. Supp. 799, 805 (D. Haw. 1993)).
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disclosure obligations did not extend to a cooperating witness
who “remained an independent actor.” United States v. Graham,
484 F.3d 413, 417-18 (6th Cir. 2007). The court noted that the
prosecution had to obtain approval from the witness’s counsel
before interviewing the witness, the prosecution had to serve
the witness with a subpoena to compel production of documents,
and the witness refused to produce materials covered by the
attorney-client privilege to the prosecution. Id. The State’s
possession of documents for purposes of HRPP Rule 16 will
similarly depend on multiple factors and the specific facts of
each case. Cf. Reyeros, 537 F.3d at 282 (noting that a relevant
factor is whether the entity charged with constructive
possession had “ready access” to the evidence).
In this case, the record does not demonstrate that the
State exerted any control over Kona’s actions in relation to
other witnesses or matters related to the case, other than he
was a cooperating witness. Texeira cites the fact that Kona had
negotiated for and ultimately received a plea deal, but the mere
fact that a witness is cooperating with the prosecution does not
show that the witness or the documents in the witness’s
possession are under the prosecution’s control for purposes of
the prosecution’s disclosure obligations under HRPP Rule 16.
Therefore, we hold that Texeira has not shown that the State had
possession of the second confession letter for purposes of HRPP
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Rule 16, and the State was not obligated to obtain the letter
from Kona’s counsel before it received the letter.25
Accordingly, Texeira has not demonstrated that the
timing of the State’s disclosure of the confession letter was a
violation of HRPP Rule 16, and therefore exclusion was not shown
to be the appropriate remedy. Cf. Moriwaki, 71 Haw. at 356, 791
P.2d at 397 (concluding that a new trial was the proper remedy
for an HRPP Rule 16 violation when it was the only remedy
available to cure the prejudice defendant suffered).
B. The Circuit Court Did Not Err by Permitting the
Introduction of DNA Evidence Without a Showing that the DNA
Tests Were Conducted in Accordance with Manufacturer
Specifications.
The admissibility of scientific evidence under HRE
Rules 70226 and 70327 is governed by five factors: whether (1) the
25
Additionally, the record does not show that the timing of the
State’s disclosure of the letter was prejudicial such that it compelled
Texeira to elect between waiving his right to a speedy trial and conducting
fingerprint or handwriting analysis on the letter. During the State’s motion
to determine voluntariness, Texeira did not state that he had retained or
made an effort to retain an expert to analyze the authenticity of the second
confession letter, indicate the length of time needed to obtain an analysis
by an expert, or make any showing that the analysis could not be completed
before the trial date. Consequently, the record does not show that the
timing of the State’s disclosure of the letter impaired Texeira’s ability to
present his defense. See Tetu, 139 Hawai‘i at 220, 386 P.3d at 857 (“Due
process requires that a defendant be given a meaningful opportunity to
present a complete defense and that discovery procedures provide the maximum
possible amount of information and a level-playing field in the adversarial
process.”).
26
HRE Rule 702 (2016) provides as follows:
Testimony by experts. If scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
(continued . . .)
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evidence will assist the trier of fact to understand the
evidence or to determine a fact in issue; (2) the evidence will
add to the common understanding of the jury; (3) the underlying
theory is generally accepted as valid; (4) the procedures used
are generally accepted as reliable if performed properly; and
(5) the procedures were applied and conducted properly in the
present instance. State v. Montalbo, 73 Haw. 130, 140, 828 P.2d
1274, 1280-81 (1992). This court has previously taken judicial
notice of the fact that DNA evidence is not controversial and is
“widely accepted in the relevant scientific community” and that
the “basic techniques underlying the analysis” are also widely
accepted. Id. at 141, 828 P.2d at 1281. DNA evidence has also
(. . . continued)
witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in
the form of an opinion or otherwise. In determining the
issue of assistance to the trier of fact, the court may
consider the trustworthiness and validity of the scientific
technique or mode of analysis employed by the proffered
expert.
27
HRE Rule 703 (2016) provides as follows:
Bases of opinion testimony by experts. The facts or data
in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence. The
court may, however, disallow testimony in the form of an
opinion or inference if the underlying facts or data
indicate lack of trustworthiness.
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been recognized as adding to the common knowledge of the jury
and will assist the trier of fact to understand evidence. Id.Texeira argues that the State was required to show
that the DNA analyses of the evidence in this case were
conducted in accordance with the manufacturer’s recommended
procedures in order to establish a proper foundation for
admission of the test results. Accordingly, the pertinent
inquiry in this case is Montalbo’s fifth element: whether
Sorenson’s DNA analyses were “applied and conducted properly.”
73 Haw. at 140, 828 P.2d at 1281.
When considering Montalbo’s fifth element, we have
held that a “foundational prerequisite for the reliability of a
test result is a showing that the measuring instrument is in
proper working order.” State v. Wallace, 80 Hawai‘i 382, 407,
910 P.2d 695, 720 (1996) (internal quotation marks omitted).
“Therefore, a proper foundation for the introduction of a
scientific test result would necessarily include expert
testimony regarding: (1) the qualifications of the expert; (2)
whether the expert employed valid techniques to obtain the test
result; and (3) whether the measuring instrument is in proper
working order.” State v. Long, 98 Hawai‘i 348, 355, 48 P.3d 595,
602 (2002) (internal quotation marks omitted) (holding that the
State failed to establish a sufficient foundation that a
laboratory instrument was in proper working order when it did
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not ask any questions regarding the instrument’s accuracy).
This court has previously considered, in certain contexts,
whether the State must show that a measuring device was used in
accordance with the manufacturer’s recommended procedures before
allowing the measurement into evidence. Wallace, 80 Hawai‘i at
412, 910 P.2d at 725 (calibration of electronic balance for
measuring the weight of narcotics); State v. Manewa, 115 Hawai‘i
343, 167 P.3d 336 (2007) (electronic balance and gas
chromatograph mass spectrometers used to measure and identify
controlled substances); State v. Assaye, 121 Hawai‘i 204, 210-14,
216 P.3d 1227, 1233-37 (2009) (calibration of laser gun for
measuring a vehicle’s speed); State v. Fitzwater, 122 Hawai‘i
354, 227 P.3d 520 (2010) (calibration of speedometers for speed
check results).
In Wallace, we held that the State failed to lay a
sufficient foundation as to the accuracy of an electronic
balance that was used to weigh the amount of cocaine found in
the defendant’s car. 80 Hawai‘i at 411-12, 910 P.2d at 724-25.
We noted that the expert witness through which the State
introduced the results of the electronic balance into evidence
lacked personal knowledge as to whether the balance was properly
calibrated at the time it was used to weigh the cocaine. Id. at
412, 910 P.2d at 725. The manufacturer’s service
representative, who conducted annual calibrations of the
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balance, did not testify regarding maintenance of the device,
and the State did not offer any “business record of the
manufacturer reflecting proper calibration of the balance.” Id.Accordingly, we held that the State had failed to establish that
the balance measured weight accurately at the time it was used
to measure the cocaine, and thus the admission of the expert’s
testimony regarding its weight was erroneous. Id.In Manewa, we similarly held that the prosecution had
laid an inadequate foundation for the introduction of an
electronic balance’s measurement of methamphetamine purchased
from the defendant by an undercover officer. 115 Hawai‘i at 355,
167 P.3d at 348 (“Moreover, as in Wallace, [the State] did not
offer any business records of the manufacturer indicating a
correct calibration of the balance.”). Also at issue was the
reliability of gas chromatograph mass spectrometers (GCMSs) that
the State’s expert witness used to identify the substance as
methamphetamine. Id. at 350, 167 P.3d at 343. We concluded
that the expert’s testimony that the devices were operating
within the manufacturer’s specifications “supported the
conclusion that the GCMSs were in proper working order at the
time the evidence was tested.” Id. at 354, 167 P.3d at 347
(citing Wallace, 80 Hawai‘i at 407, 910 P.2d at 720). As such,
the State had laid an adequate foundation as to the identity of
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the methamphetamine, and the testimony was properly admitted.
Id.We again considered the relevance of manufacturer-
recommended procedures for the operation of a measuring device
in Assaye. 121 Hawai‘i at 210-14, 216 P.3d at 1233-37. The
defendant in Assaye was convicted of excessive speeding after a
bench trial at which the citing police officer testified that he
used a laser gun to determine that the defendant was speeding.
Id. at 205, 216 P.3d at 1228. The officer testified that he was
certified to use the laser gun through a one hour class taught
by another police officer and he performed four tests to ensure
the accuracy of the laser gun before using it. Id. at 212, 216
P.3d at 1235. There was no expert testimony that the tests the
officer performed were reliable, and the State did not show that
the laser gun’s manufacturer recommended using these tests to
ensure the reliability of the laser gun’s measurements. Id.The defendant objected that there was an insufficient foundation
for the officer’s testimony, but the circuit court overruled the
objection. Id. at 207-09, 216 P.3d at 1230-32.
On appeal, we held that there was an inadequate
foundation to show the laser gun’s measurements were reliable.
Id. at 214, 216 P.3d at 1237. Additionally, we noted that with
regard to our conclusion that the GCMSs in Manewa were reliable,
it was “[c]rucial” that the record indicated the device
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manufacturer had established parameters to ensure the machine
was in working order, and the expert testimony indicated that
the devices were operating within those parameters. Id. at 212-
13, 216 P.3d at 1235-36. In contrast, the Assaye court stated
that the record in that case was silent as to what procedures
the laser gun’s manufacturer recommended, and there was no
expert testimony that the procedures the officer had used were
reliable. Id. at 213, 216 P.3d at 1236. After observing that
courts in other jurisdictions had considered evidence as to the
manufacturer-recommended procedures to maintain a laser gun and
ensure its accuracy, we concluded that the State had not laid an
adequate foundation to show that the laser gun’s measurement was
reliable because the State had not adduced any evidence as to
the procedures the manufacturer recommended to ensure the
device’s accuracy. Id. at 213-14, 213 n.7, 216 P.3d at 1236-37,
1236 n.7; accord State v. Apollonio, 130 Hawai‘i 353, 359-62, 311
P.3d 676, 682-85 (2013); see also Fitzwater, 122 Hawai‘i at 375,
227 P.3d at 541 (noting that because the record did not indicate
what kind of test was performed to ensure the speedometer in the
officer’s vehicle was reliable, the foundational requirements
set forth with respect to the electronic balance in Wallace and
Manewa were applicable).
Texeira contends that these prior holdings required
the State to demonstrate that the analyses conducted in this
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case were done in accordance with the manufacturer’s established
recommendations. First, this is not a case where the expert
witness lacked personal knowledge as to whether the device was
properly calibrated at the time it was used, as was the
situation with the electronic balances discussed in Wallace and
Manewa. Furthermore, our holding in Manewa with respect to the
GCMSs does not require that the State prove calibration in
compliance with the manner recommended by the manufacturer. 115
Hawai‘i at 354, 167 P.3d at 347. The Manewa court held that the
expert’s testimony established that the devices were in working
order according to the manufacturer’s specifications, and
accordingly an adequate foundation was laid. Id. Nor is this
case similar to Assaye, where the only evidence as to the
reliability of the laser gun’s measurement was the officer’s lay
testimony. 121 Hawai‘i at 214, 216 P.3d at 1237. Here, the
State sought to demonstrate the reliability of the instruments
used to conduct the DNA analyses by presenting expert testimony
as to the operating procedures employed by Sorenson, the
training requirements for its employees, its accreditation
process, and by introducing a business record to prove the
devices were in working order at the time they were used.
As stated, the test for determining whether a party
has laid a sufficient foundation for the admissibility of an
expert’s testimony as to scientific test results is that
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established in Long. 98 Hawai‘i at 355, 48 P.3d at 602. The
proponent of the evidence must present expert testimony as to
the qualifications of the expert, whether the expert employed
valid techniques to obtain the test result, and whether the
measuring instrument was in proper working order at the time it
was used. Id.In this case, Jeskie testified that all of the
instruments used to analyze the samples in this case were
validated. She explained that validation is a process used to
ensure that the data produced by the device is reliable and
reproducible. Jeskie further testified that the validation
process used by Sorenson was consistent with the validation
process required by the FBI’s quality assurance standards.
Sorenson’s compliance with the FBI’s quality assurance standards
is necessary for its accreditation by ASCLD, and Sorenson’s
laboratory and equipment were subject to regular audits by ASCLD
in order for Sorenson’s accreditation to be maintained.
Additionally, Jeskie testified that all the Sorenson laboratory
employees are required to complete a training program on the
proper use of the laboratory equipment, and that the program is
reviewed as part of the ASCLD accreditation process. Jeskie
indicated that Sorenson had never lost its ASCLD accreditation
or had its accreditation withheld or suspended. Jeskie also
explained that each machine used in this case was subject to a
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control, which would have revealed whether there was a mistake
or error in the test. Finally, the State presented a certified
business record at the pretrial HRE Rule 104 hearing to prove
the machines were properly maintained at the time of testing by
showing that they underwent daily, weekly, monthly, and annual
maintenance, and they were properly calibrated to ensure the
test results were accurate.
Based on the foregoing, we conclude the State has
proven by a preponderance of the evidence that the machines used
to analyze the DNA evidence in this case were in proper working
order at the time they were used, and thus the State laid a
sufficient factual foundation for Jeskie’s testimony as to the
results of those analyses. Long, 98 Hawai‘i at 355, 48 P.3d at
602; State v. Gano, 92 Hawai‘i 161, 172, 988 P.2d 1153, 1164
(1999) (noting that when the facts necessary for admissibility
are contested, the proponent of the evidence must show it is
admissible by a preponderance of the evidence); accord State v.
Martin, No. SCWC-XX-XXXXXXX, 2020 WL 1934475, at *14 (Haw. April
22, 2020) (noting that this court “adopted the preponderance of
the evidence standard for foundation factfinding in HRE Rule
104(a) admissibility hearings”) (alterations omitted) (quoting
State v. McGriff, 76 Hawai‘i 148, 871 P.2d 782 (1994)).
A review of decisions from other jurisdictions that
have addressed the admissibility of DNA test results from
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laboratories that operate under ASCLD and FBI standards lends
support to the reliability of the standards used in this case.
For example, in State v. Powell, the Tennessee Court of Criminal
Appeals concluded that an expert was properly allowed to testify
regarding the laboratory’s DNA analysis because the laboratory
had “complied with the rigorous protocols necessary to obtain
and maintain ASCLD accreditation.”28 Powell, No. W2013-00844-
CCA-R3-CD, 2014 WL 1329233 (Tenn. Crim. App. April 3, 2014).
Similarly, Nebraska courts have found that the Daubert framework
was satisfied by a DNA expert’s testimony that the laboratory in
question was (1) accredited by ASCLD, (2) complied with the
FBI’s testing requirements, and (3) the expert was “required to
pass a proficiency examination twice a year.” State v. Warner,
No. A-15-858, 2016 WL 4443559, at *5 (Neb. App. Aug. 23, 2016);
see also State v. Tolliver, 689 N.W.2d 567, 576 (Neb. 2004);
State v. Fernando-Granados, 682 N.W.2d 266, 281-82 (Neb. 2004).
The Ohio Court of Appeals addressed the issue in State v. Bruce,
concluding that an expert was qualified to testify regarding a
28
In United States v. Morgan, the court detailed the extensive
process a laboratory must engage in to receive ASCLD accreditation. 53
F.Supp.3d 732, 738-39 (S.D. N.Y. 2014). The court noted that a laboratory is
required to submit an application to ASCLD, who conducts an on-site
assessment that entails interviewing all relevant employees, observing the
employees perform their job functions, reviewing records accompanying the
application, and analyzing case records to determine whether the laboratory’s
results are accurate and appropriate. Id. at 738. ASCLD then issues a
report detailing whether the laboratory has met accreditation requirements;
if accreditation is granted, the laboratory is required to provide records
demonstrating conformity with accreditation requirements and submit an annual
report detailing compliance. Id. at 739.
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DNA analysis after noting that the laboratory in that case was
ASCLD accredited and that the expert passed FBI proficiency
tests. Bruce, No. 2006-CA-45, 2008 WL 4801648, at *12 (Ohio
App. Oct. 31, 2008). A New Mexico district court similarly
found that a machine’s DNA test results were admissible because
the laboratory was ASCLD accredited, followed FBI Quality
Assurance Standards, and established “rigorous standards for
technical procedures and policies, undergoing proficiency
testing, internal validation, and performance checks.” United
States v. McCluskey, 954 F.Supp.2d 1224, 1256 (D. N.M. 2013).
In addition to caselaw, California and Indiana have
passed statutes mandating that DNA laboratories either use
quality assurance standards approved by ASCLD or meet FBI
Quality Assurance Standards. See Cal. Penal Code § 297(a)(1)
(2007) (requiring DNA laboratories to meet the FBI Quality
Assurance Standards); Ind. Code Ann. § 10-13-6-14 (2003)
(requiring a “laboratory conducting forensic DNA analysis” to
“implement and follow nationally recognized standards for DNA
quality assurance and proficiency testing, such as those
approved by the American Society of Crime Laboratory Directors
Laboratory Accreditation Board”).29 In sum, several
29
Texeira argues that State v. Tankersley stands for the
proposition that a laboratory must comply with a manufacturer’s specification
in order for its tests to be admissible. However, the Tankersley court held
(continued . . .)
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jurisdictions consider ASCLD accreditation as foundational
evidence that DNA tests conducted in the accredited laboratory
are reliable.30
Here, as discussed above, the record establishes by a
preponderance of the evidence that the machines Sorenson used to
conduct the DNA analysis in this case were reliable. The State
laid a proper foundation to the introduction of this evidence by
proving that Jeskie was properly qualified, the techniques
Sorenson used were valid, and the machines were in proper
working order at the time they were used. Long, 98 Hawai‘i at
355, 48 P.3d at 602 (2002). Accordingly, the circuit court did
(. . . continued)
that the “appropriate inquiry is whether a lab’s techniques have deviated so
far from generally accepted practices that the tests results cannot be
accepted as reliable.” 956 P.2d 486, 493 (Ariz. 1998), abrogated on other
grounds by State v. Machado, 246 P.3d 632 (Ariz. 2011). The Tankersley court
specifically noted that ASCLD accreditation can “provide a useful gauge of
reliability, but it is not required” as a “prerequisite for admitting any
lab’s test results.” Id. (citation omitted). The court then noted that the
trial court did not abuse its discretion by qualifying expert witnesses and
admitting laboratory test results at issue where they complied sufficiently
with “the protocols of [the laboratory in question], other labs, and the
kit’s manufacturer.” Id. Thus, Tankersley does not appear to require
compliance with a manufacturer’s protocols as a prerequisite to admission of
the test results.
30
We note, however, that the ASCLD/LAB accreditation process has
been subject to criticism, namely that (1) “inspectors can be employed by
crime labs that are themselves reviewed by ASCLD/LAB,” (2) the “ASCLD/LAB
relies on annual self-audits” between inspections, (3) “ASCLD/LAB procedures
permit each analyst to select five cases for review during an audit” and (4)
ASCLD/LAB “require[s] inspectors to destroy their notes of inspections.”
Paul C. Giannelli, Regulating DNA Laboratories: The New Gold Standard?, 69
N.Y.U. Ann. Surv. Am. L. 617, 636-37 (2014).
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not err in permitting Jeskie to testify as to the results of the
DNA tests.
C. Evidence of Flores’ Culpability Was Improperly Excluded by
the Trial Court but the Exclusion Was Harmless Beyond a
Reasonable Doubt.
1. Portions of Texeira’s Third-Party Culpability Evidence Were
Admissible Under HRE Rules 401 and 403.
Texeira asserts that the circuit court erred by
precluding him from adducing third-party culpability evidence
showing that Flores killed Togioka. The circuit court
determined that the evidence should be excluded because Texeira
had not proven there was a “legitimate tendency” that Flores
could have committed the crime, as required by our holding in
State v. Rabellizsa. 79 Hawai‘i 347, 903 P.2d 43 (1995). This
court recently determined in State v. Kato, No. SCWC-XX-XXXXXXX
(Haw. June 18, 2020), that the admissibility of third-party
culpability evidence is governed by the HRE Rule 401 relevancy
standard and the limitations provided by HRE Rule 403 and is not
subject to a legitimate tendency test.31
31
Justice Nakayama’s concurring and dissenting opinion (dissent)
states that “motive alone is collateral and irrelevant,” citing several cases
for this proposition. Dissent at 9-10. This was not our decision in Kato
nor is it our decision today. As we explained in Kato,
The dissent misapprehends the holding of this opinion,
contending that our decision would allow “third-party
motive evidence alone” to establish relevancy. Instead,
our opinion applies HRE Rule 401’s relevancy standard to
proffered third-party culpability evidence in the same
manner as that rule applies to all other evidence. It
(continued . . .)
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Texeira argues that Flores either killed Togioka
herself or ordered another person to kill him.32 Texeira
contends the following evidence that Flores killed Togioka was
relevant and admissible: (1) Flores, while on the phone with
Kona two days before Togioka’s death, made a comment about
wanting to shoot Togioka; (2) Flores was upset at Togioka, after
learning the day before his death, that he had previously
claimed to be in a sexual relationship with her; (3) Flores was
in possession of a .22-caliber rifle that could have been used
to kill Togioka before his death; (4) Flores was arrested two
days after the killing with .22-caliber bullets; (5) Flores went
(. . . continued)
rejects the higher burden adopted in Rabellizsa, which is
not consistent with the Hawaiʻi Rules of Evidence. . . . As
stated, we do not hold that evidence of a third party’s
motive on its own will ipso facto allow admissibility of
such evidence, instead HRE Rule 401 and Rule 403 govern.
No. SCWC-XX-XXXXXXX, at 40 n.29 (citations omitted).
32
At trial, defense counsel argued that Kona, Pagala, or Flores
killed Togioka. On appeal, Texeira only challenges the circuit court’s
refusal to admit evidence tending to show Flores killed Togioka. Texeira was
not precluded from introducing evidence that Kona killed Togioka, so we do
not consider whether evidence of his culpability should have been admitted.
Additionally, defense counsel expressly stated at trial that he was not
claiming that Pagala killed Togioka, and he thus did not preserve this
contention. Even under a plain error review, Texeira does not identify on
appeal evidence he would have used to show Pagala killed Togioka. As part of
the proffer of Flores’ culpability, Texeira stated that Flores gave Pagala
.22-caliber bullets, Pagala was arrested the day after the murder with Flores
and in possession of a .22-caliber rifle and bullets, and Pagala came to
Kona’s house the night of the murder with Flores. As this evidence was
actually proffered as evidence of Flores’ culpability, the determination of
whether the evidence should have been admitted ultimately depends on the
resolution of the admissibility of the third-party culpability evidence
regarding Flores, and this evidence is thus considered in that light.
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to Kona’s home the night after Togioka’s death and was
“paranoid” and “did not seem herself”; (6) Flores’ lawyer stated
that the evidence implicated her in Togioka’s killing; (7)
Flores had previously tortured a person who owed her money; and
(8) Flores gave a false alibi to the police and her whereabouts
were not verified.33 We first consider the relevance of each
proffered piece of evidence.
“‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” HRE Rule
401 (2016). The evidence that Flores told Kona she wanted to
shoot Togioka a few days before he died is probative of her
motive to kill Togioka and is therefore relevant to a fact of
consequence to the determination of the action: that Flores was
responsible for killing Togioka, making it less probable that
Texeira committed the offense of which he was charged. See
Tibbs v. State, 59 N.E.3d 1005, 1011 (Ind. Ct. App. 2016)
(“Evidence which tends to show that someone else committed the
crime makes it less probable that the defendant committed the
33
The KPD reviewed surveillance footage from a McDonald’s in Eleʻele
to corroborate a statement Flores made during her November 2 interview
regarding her whereabouts on the night that Togioka was killed, and the
police report noted that she was not shown in the footage. However, Flores
had told the interviewing officers that she was at the McDonald’s on the
night of either October 29 or 30, 2016, and it appears KPD mistakenly
reviewed the footage from October 31.
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crime and is therefore relevant under [Evidence] Rule 401.”)
(alteration in original); see also State v. Pepin, 940 A.2d 221(N.H. 2007) (upholding trial court’s finding that defendant’s
prior threat was relevant to show his intent when directed at
the same victim). Similarly, the evidence that Flores was angry
with Togioka at that time and had confronted him because she had
recently learned that he had claimed to be in a sexual
relationship with her would tend to make it more probable that
Flores had a motive to kill Togioka. Thus, it is relevant
evidence under HRE Rule 401.
Texeira also argued that Flores had access to a gun
that was potentially the murder weapon and was arrested with
.22-caliber bullets that could have been used to kill Togioka
two days after Togioka’s death. Generally, the mere fact that
an allegedly culpable third-party possessed a weapon of the same
caliber as the one used in the crime has minimal probative
value, but this value is significantly enhanced if the
surrounding circumstances permit the jury to infer that the gun
was in fact used in the crime. See, e.g., People v. Brown, 697
N.Y.S.2d 892 (N.Y. App. Div. 1999) (defendant’s possession of a
silver .380-caliber handgun four days before the charged crime
was properly admitted in view of evidence that one of the
participants in the crime carried a silver .380-caliber
handgun); People v. Sheriff, 652 N.Y.S.2d 916, 917 (N.Y. App.
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Div. 1996) (holding that defendant’s possession of a distinctive
chrome-plated handgun subsequent to alleged murder was
admissible). Here, although the .22-caliber rifle and
ammunition in Flores’ possession were not distinctive, the fact
that evidence indicated Flores was in possession of the weapon
the day before Togioka’s death, coupled with the other proffered
evidence, has “a tendency, either directly or circumstantially,”
to show that Flores may have been the person who killed Togioka,
and thus the evidence is relevant under HRE Rule 401.34 Kato,
No. SCWC-XX-XXXXXXX, at 41.
The evidence that Flores was acting “paranoid” and
“did not seem herself” shortly after Togioka’s death also has a
tendency to show the existence of a fact of consequence--that
Flores killed Togioka--and thus is relevant under HRE Rule 401.
See Brunson v. State, 245 S.W.3d 132, 141 (Ark. 2006) (evidence
showing defendant’s strange behavior towards victim was relevant
to his murder conviction); Horton v. State, 217 So.3d 27, 57-58
(Ala. Crim. App. 2016) (stating that evidence of strange
34
Although Texeira’s argument that Flores gave a false alibi was
not substantiated by the KPD, Texeira correctly notes that her whereabouts on
the night of Togioka’s death were unverified. The only evidence of Flores’
whereabouts on that evening is Flores’ statement to the police in which she
repeatedly stated she could not recall where she was or what she was doing on
the evening of October 31, 2016. After repeatedly denying any recollection,
Flores finally stated that she was at her home alone with Pagala that evening
after the officers told her that the evidence implicated her in Togioka’s
death.
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behavior before and after the murder was relevant, but
concluding the specific evidence at issue was properly excluded
as it was collateral); Harris v. State, No. 14-16-00282-CR, 2018
WL 1004879, at *3 (Tex. Ct. App. 2018) (finding that appellant’s
strange behavior before a murder contributed to the sufficiency
of the evidence in his conviction).35
Texeira also appears to argue on appeal that he should
have been able to introduce into evidence a declaration that
Flores’ counsel attached to the notice of intent to claim the
privilege against self-incrimination, which Flores filed after
the State revoked her immunity. However, a personal opinion by
Flores’ counsel as to whether or not the evidence implicated
Flores does not tend to make it more or less likely that Flores
killed Togioka or was responsible for his death. Accordingly,
Flores’ counsel’s statement is not relevant.
35
The dissent asserts that Flores’ paranoid behavior is not
probative of a guilty mind because Flores was acquainted with Togioka and
speculates that her paranoid behavior was merely an expression of grief.
Dissent at 16 n.11. The dissent’s speculative explanation for Flores’
conduct is unsupported by any evidence and, more importantly, the fact that
evidence is consistent with more than one narrative does not mean that it is
irrelevant. To be relevant, evidence need only have any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
HRE Rule 401. The evidence does not need to conclusively demonstrate the
existence of a fact to the exclusion of all other possible explanations, as
the dissent essentially asserts. The dissent also appears to argue that
evidence of Flores’ guilty mind is measured differently because she was a
third party. Dissent at 16 n.11. As explained, however, evidence of a third
party’s culpability is not a special species of evidence and is governed like
other evidence by the Hawaiʻi Rules of Evidence. Kato, No. SCWC-XX-XXXXXXX,
at 34.
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Finally, Texeira maintains the evidence that Flores
had previously tortured a person who owed her money is relevant
to show that Flores had a motive to kill Togioka or intimidated
other witnesses into testifying falsely. Breen, who allegedly
saw a video of Flores torturing someone, would have testified
that in the video Flores used an electroshock weapon to torture
a debtor. Standing alone, this testimony is not relevant.
Because of the absence of evidence connecting Breen’s statements
about the video to the other witnesses at trial, this evidence
is not relevant to whether Flores intimidated any of the
witnesses into testifying falsely.
The dissent maintains that “third-party culpability
evidence is a different species than evidence of the defendant’s
own guilt.” Dissent at 8; see also dissent at 12-13. We
rejected this categorization of evidence in Kato, noting that
the Hawaiʻi Rules of Evidence “govern proceedings in the courts
of the State of Hawaii.” No. SCWC-XX-XXXXXXX, at 33 (quoting
HRE Rule 101 (2016)). We further explained that “the basic
precondition for admissibility of all evidence is that it is
relevant as that term is defined in HRE Rule 401.” Id. (quoting
Medeiros v. Choy, 142 Hawaiʻi 233, 245, 418 P.3d 574, 586
(2018)); People v. Hall, 718 P.2d 99, 104 (Cal. 1986) (“[C]ourts
should simply treat third-party culpability evidence like any
other evidence: if relevant it is admissible (§ 350) unless its
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probative value is substantially outweighed by the risk of undue
delay, prejudice, or confusion (§ 352).” (emphasis added)); see
also People v. Young, 445 P.3d 591, 614–15 (Cal. 2019) (“In
other words, courts treat third party culpability evidence ‘like
any other evidence: if relevant it is admissible, . . . unless
its probative value is substantially outweighed by the risk of
undue delay, prejudice, or confusion.’” (quoting People v.
Lewis, 28 P.3d 34 (Cal. 2001))).
As stated, we reconsidered the appropriateness of the
legitimate tendency test in Kato and held that the admissibility
of third-party culpability evidence is governed by HRE Rule 401
and HRE Rule 403. No. SCWC-XX-XXXXXXX, at 34-40. Under HRE
Rule 401, the standard is whether the evidence has any tendency,
“either directly or circumstantially,” to show the third person
was responsible for the charged offense.36 Id. at 37.
Evidence that is relevant under HRE Rule 401 may still
be excluded under HRE Rule 403 if its probative value is
36
The dissent relies upon State v. R.Y., No. 081706, 2020 WL
2182230 (N.J. May 6, 2020), dissent at 14, which held that, for third-party
culpability evidence to be relevant, “[s]omewhere in the total circumstances
there must be some thread capable of inducing reasonable men to regard the
event as bearing upon the State’s case.” R.Y., No. 081706, 2020 WL 2182230,
at *9 (alteration in original) (emphasis added) (holding that the trial court
erred in excluding third-party culpability evidence because the proffered
evidence was not “mere conjecture” and pertained to an essential feature of
the State’s case). Rather than importing a standard from another
jurisdiction for one species of evidence, we apply the relevancy standard set
forth in the Hawaiʻi Rules of Evidence to ensure consistent application of our
rules to all categories of evidence, as indeed HRE Rule 101 requires.
Medeiros, 142 Hawaiʻi at 245, 418 P.3d at 586.
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substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.37 HRE Rule 403; Medeiros,
142 Hawai‘i at 248, 418 P.3d at 589. When weighing probative
value versus prejudicial effect in this context, a court must
consider a variety of factors, including “the need for the
evidence, the efficacy of alternative proof, and the degree to
which the evidence probably will rouse the jury to overmastering
hostility.” State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273
(1992). As stated in Kato, a trial court should resolve a close
question of admissibility in favor of the defendant. No. SCWC-
XX-XXXXXXX, at 36 (citing Winfield v. United States, 676 A.2d 1,
6-7 (D.C. 1996)).
Evidence that Flores told Kona she’d like to shoot
Togioka a few days before his death is highly probative because
it demonstrates Flores’ desire to have Togioka killed.38 State
37
HRE Rule 403 (2016) provides as follows: “Although relevant,
evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
38
The dissent criticizes our consideration of Kona’s statement that
Flores said something to him about wanting to shoot Togioka during a
telephone conversation two days before the killing because, according to the
dissent, Texeira did not draw “the circuit court’s attention” to Kona’s
statement in his trial memorandum. Dissent at 11 n.7. Contrary to the
dissent’s assertion, Texeira attached Kona’s statement to the police as an
exhibit to his trial memorandum, cited the precise page on which Kona related
(continued . . .)
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v. Cordeiro, 99 Hawai‘i 390, 417, 56 P.3d 692, 719 (2002)
(threats to shoot victim were highly probative where murder
weapon wasn’t recovered). The evidence that Flores was upset at
Togioka for claiming to be in a sexual relationship with her is
also probative of Flores’ motive. See Renon, 73 Haw. at 39, 828
P.2d at 1274 (“[B]ecause a motive is ordinarily the incentive
for criminal behavior, its probative value generally exceeds its
prejudicial effect[.]” (alterations in original)). The
probative value of the proffered evidence is increased by the
fact that Flores learned of Togioka’s claim and made a
threatening type of statement only two days before Togioka’s
death. Martin, No. SCWC-XX-XXXXXXX, 2020 WL 1934475, at *18
(Haw. April 22, 2020) (noting that the challenged statement was
made only an hour before the charged crime occurred).
Conversely, the State would not be prejudiced by this evidence
because there is minimal concern that it would constitute a
waste of time or confuse the jury. Thus, the probative value of
this evidence is not substantially outweighed by its prejudicial
effect, and its exclusion was not supported by HRE Rule 403.
(. . . continued)
Flores’ comment, and sought the admission of Kona’s statement into evidence.
Accordingly, the statement was presented to the circuit court for its
consideration, and the dissent’s contention is unavailing.
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As noted, Flores’ possession of a .22-caliber rifle
and bullets is only mildly probative in and of itself. However,
when considered in light of the other evidence, namely that
Togioka was killed by a .22-caliber firearm, the fact that the
murder weapon is contested, and that there is evidence Flores
possessed the weapon the day of Togioka’s death and was still in
possession of .22-caliber ammunition two days later, the
probative value of Texeira’s proffered evidence is heightened
and is not substantially outweighed by its prejudicial effect.39
Evidence that Flores was acting “paranoid” and “not
herself” the night after Togioka was killed arguably may be
probative as evidence of a guilty state of mind. The timing of
when the observation of Flores was made and that it was observed
in Kona’s home--where the gun was taken from and returned--lends
probative value to the evidence and it posed little risk of
wasting time or confusing the jury. Thus, the admission of this
evidence would not be substantially more prejudicial than
probative.
39
The probative value of this evidence is further enhanced by the
fact that Flores was unable to recall her whereabouts on the night Togioka
was killed and the only alibi she offered, after multiple denials of any
recollection of her whereabouts, was that she was alone at home with Pagala.
Kato, No. SCWC-XX-XXXXXXX, at 35-36 (“A defendant need not place the third
party at or near the scene of the crime; it is sufficient for relevancy
considerations that the defendant has provided direct or circumstantial
evidence tending to show that the third person committed the crime.”).
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Finally, although we have already concluded that the
evidence that Flores tortured a debtor with an electroshock
weapon is irrelevant, we note that even assuming marginal
relevance of this evidence, its probative value is exceedingly
low because it is unclear when the alleged incident occurred,
the debtor was not Togioka, the motive to harm may have been
different, and the weapon used is not the same type of weapon
used in this case. Admitting this evidence would also require
consideration of ancillary evidence, such as circumstances
relating to the reliability and the contents of the video, which
would involve confusion of the issues. The probative value is
thus substantially outweighed by the factors set forth in HRE
Rule 403.
Accordingly, the circuit court erred in excluding the
evidence that Flores (1) told Kona she would like to shoot
Togioka two days before his death; (2) was angry and upset at
Togioka shortly before his death because she found out that he
had claimed previously to be in a sexual relationship with her;
(3) was in possession of a .22-caliber rifle the day of
Togioka’s death, (4) was arrested two days after Togioka’s death
with .22-caliber bullets; and (5) went to Kona’s home the
following evening after Togioka’s death and was “paranoid” and
“did not seem herself.” See Medeiros, 142 Hawai‘i at 248, 418
P.3d at 589.
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2. The Exclusion of Texeira’s Third-Party Culpability Evidence
Was Harmless Beyond a Reasonable Doubt.
“In applying the harmless beyond a reasonable doubt
standard, the court is required to examine the record and
determine whether there is a reasonable possibility that the
error complained of might have contributed to the conviction.”
State v. Souza, 142 Hawai‘i 390, 402, 420 P.3d 321, 333 (2018)
(brackets omitted) (quoting State v. Mundon, 121 Hawai‘i 339,
368, 219 P.3d 1126, 1155 (2009)).
This is a case where there appears to be a “wealth of
overwhelming and compelling evidence tending to show the
defendant guilty beyond a reasonable doubt.” State v. Rivera,
62 Haw. 120, 127, 612 P.2d 526, 532 (1980). Dela Cruz testified
that he and Texeira picked up Togioka, they drove together to
Kona’s house, and Togioka and Texeira went into the home. Kona
testified that Texeira asked him if he knew where Texeira’s gun
was at that time, and he told Texeira where to find it. Schmidt
testified that Texeira retrieved the gun from the shelf behind
the house and then Texeira, Dela Cruz, and Togioka left Kona’s
house together in a car. Dela Cruz testified that after they
parked near Burns Field, Texeira and Togioka left the car and
walked a short distance away. Dela Cruz then heard gunshots and
heard Togioka yell, “you shot me.” He saw Togioka face down on
the ground, only 15-20 feet in front of the vehicle. Dela Cruz
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stated that he saw Texeira return to the car with a .22-caliber
revolver, then he and Texeira drove away, and Texeira told Dela
Cruz that he shot Togioka.
Kona and Pagala testified that Texeira confessed to
killing Togioka. Kona testified that Texeira told him in prison
that he shot Togioka in the arm and the head, accurately
identifying where the bullet wounds on Togioka were found.
Pagala similarly testified that Texeira said he shot Togioka in
the head and arm.
The State introduced a confession letter, as well as
evidence that indicated that Texeira was its author. The
confession letter stated that Texeira had wrestled his gun away
from Togioka and then shot Togioka twice.40 Texeira’s cell phone
was shown to be in the area where Togioka was killed at the time
of his death. Texeira also acknowledged being in the general
area at that time during his November 4, 2016 interview with Lt.
Jenkins. Texeira sent a text message stating “All pau” to Kona
about the time that the evidence indicated Togioka’s death
occurred. Most significantly, DNA evidence on a cigarette
recovered next to Togioka’s right calf matched Texeira’s DNA
40
Although the writer of the letter stated that the killing of
Togioka was an act committed in self-defense, this defense was not raised or
argued at trial; instead Texeira contended the killing was committed by Kona,
Pagala, or Flores.
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profile with the odds that the DNA belonged to a different
individual being in the octillions.
On this record, there is no reasonable possibility
that the exclusion of the third-party culpability evidence
contributed to Texeira’s conviction. Accordingly, the circuit
court’s error in excluding the third-party culpability evidence
was harmless beyond a reasonable doubt.
IV. CONCLUSION
For the foregoing reasons, the circuit court’s
Judgment and Sentence of Conviction is affirmed.
Craig A. De Costa /s/ Sabrina S. McKenna
Daniel G. Hempey
for appellant /s/ Richard W. Pollack
Tracy Murakami /s/ Michael D. Wilson
for appellee
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