  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                     Electronically Filed
                                                     Intermediate Court of Appeals
                                                     CAAP-XX-XXXXXXX
                                                     05-JUN-2020
                                                     07:49 AM




                           NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS
                         OF THE STATE OF HAWAI#I


               STATE OF HAWAI#I, Plaintiff-Appellee, v.
             BEVERLY KANANI ESTRADA, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                          (HONOLULU DIVISION)
                       (CASE NO. 1DTA-17-02191)


                      SUMMARY DISPOSITION ORDER
         (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

            Defendant-Appellant Beverly Kanani Estrada (Estrada)

appeals from the Notice of Entry of Judgment and/or Order and

Plea/Judgment,1 filed on November 8, 2017, and the Notice of

Entry of Judgment and/or Order and Plea/Judgment,2 filed on May

29, 2018 (Final Judgment), in the District Court of the First

Circuit, Honolulu Division (District Court).




     1
            The Honorable Melanie M. May presided.
     2
            The Honorable Sherri-Ann L. Iha presided.
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


          Estrada was convicted of Operating a Vehicle Under the

Influence of an Intoxicant (OVUII), in violation of Hawaii

Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2018).3

          Estrada raises two points of error on appeal,

contending that:      (1) the District Court erred by denying her

Motion to Compel Discovery for failure to provide all material or

information mandated by Brady v. Maryland, 373 U.S. 83 (1963);

and (2) there was insufficient evidence to convict her of OVUII.

          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Estrada's points of error as follows:

          (1)   In the Motion to Compel Discovery, relevant to

this appeal, Estrada requested:           "Any and all material or

information which tends to negate the guilt of Defendant as to

the offense charged or would tend to reduce Defendant's

punishment therefore, and all other material as mandated by Brady

v. Maryland, 373 U.S. 83 (1963)"; and specifically, information

relating to Officer Siala Seti (Officer Seti) being previously

charged in an assaultive-type case.




     3
          HRS § 291E-61(a)(1) states:
                § 291E-61 Operating a vehicle under the influence of
          an intoxicant. (a) A person commits the offense of
          operating a vehicle under the influence of an intoxicant if
          the person operates or assumes actual physical control of a
          vehicle:
                (1)     While under the influence of alcohol in an
                        amount sufficient to impair the person's normal
                        mental faculties or ability to care for the
                        person and guard against casualty[.]

                                      2
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


          On appeal, Estrada argues that "Officer Seti's prior

assaultive-type behavior, especially if it involved the use of

excessive force against an arrestee, would provide the context

for Officer Seti's claimed use of a light grab and joint lock on

a 64-year old woman.    In turn, this could explain Estrada's

subsequent reaction, whether it was yelling and screaming or

talking loudly.    This was extremely relevant as the District

Court cited Estrada's alleged post-arrest belligerence as further

evidence of her intoxication."    Estrada contends that, "if
Officer Seti was disciplined for the excessive use of force

against an arrestee previously, it could also explain why he

minimized his behavior in this case or why it was important for

him to exaggerate Estrada's reaction - the records would then be

relevant as evidence of bias, interest, or motive under HRE Rule

609.1 and would be again relevant and material to the issue of

guilt."

          "[S]uppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material either to guilt or punishment, irrespective

of the good faith or bad faith of the prosecution."      Brady, 373

U.S. at 87.   Impeachment evidence falls within the Brady rule

because such evidence is favorable to the accused, and, if used

effectively may make the difference between conviction and

acquittal.    United States v. Bagley, 473 U.S. 667, 676 (1985)

(citations omitted).

          In Birano v. State, 143 Hawai#i 163, 181, 426 P.3d 387,

405 (2018) (quoting State v. Tetu, 139 Hawai#i 207, 219, 386 P.3d

                                  3
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


844, 856 (2016)), the Hawai#i Supreme Court explained that

"[c]entral to the protections of due process is the right to be

accorded a meaningful opportunity to present a complete defense."

(Internal quotation marks omitted).    Therefore, the court held

that "the prosecution has a constitutional obligation to disclose

evidence that is material to the guilt or punishment of the

defendant."   Id. at 182, 426 P.3d at 406.    "The duty to disclose

evidence that is favorable to the accused includes evidence that

may be used to impeach the government's witnesses by showing
bias, self-interest, or other factors that might undermine the

reliability of the witness's testimony."     Id.

          For purposes of using a conviction for impeachment, it

has been long understood that "[i]n every instance where a

witness is sought to be impeached, the only issue that arises is

whether the witness is telling the truth."     Asato v. Furtado, 52

Haw. 284, 292, 474 P.2d 288, 294 (1970).     "It is character and

reputation for truth and veracity, not any other character trait,

that is in issue."   Id.   "Therefore, any evidence adduced on this

issue, in order to be relevant at all, must go to the issue of

truth and veracity."   Id.

          "When the prior crime [or bad act] has nothing to do

with dishonesty, there may be no logical connection whatsoever

between the prior crime and the determination of whether the

defendant may be believed."    State v. Stanley, 110 Hawai#i 116,

128, 129 P.3d 1144, 1156 (App. 2005) (quoting State v. Santiago,

53 Haw. 254, 259, 492 P.2d 657, 661 (1971)).



                                  4
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


          "[T]here are a great many criminal offenses the

conviction of which has no bearing whatsoever upon the witness'

propensity for lying or truth-telling, and that such convictions

ought not to be admitted for purposes of impeachment."             Asato, 52

Haw. at 292, 474 P.2d at 294 (citation omitted).           The court in

Asato went on to state:
                This is true not only of minor offenses like parking
          tickets or driving with loud mufflers or running red lights,
          but also of some major offenses like murder or assault and
          battery. It is hard to see any rational connection between,
          say, a crime of violence and the likelihood that the witness
          will tell the truth. In addition, there is the danger that
          a moralistic jury might decide not to believe a witness who
          has been convicted of a serious crime, even though the crime
          has no rational connection to credibility.

                For these reasons, we think it unwise to admit
          evidence of any and all convictions on the issue of
          credibility. We hold that admission of such evidence should
          be limited to those convictions that are relevant to the
          issue of truth and veracity. A perjury conviction, for
          example, would carry considerable probative value in a
          determination of whether a witness is likely to falsify
          under oath. We also think that other crimes that fall into
          the class of crimes involving dishonesty or false statement
          would have same value in a rational determination of
          credibility.

                The rule we adopt is that a prior conviction may
          come in if, but only if, the trial judge, in his
          discretion, feels that the party offering the evidence
          has satisfactorily shown that the conviction to be
          proved rationally carries probative value on the issue
          of the truth and veracity of the witness.

Id. at 293, 474 P.2d at 295.

          In Stanley, this court discussed United States v.

Geston, 299 F.3d 1130 (9th Cir. 2002), in which a defendant

sought to use a witness's two prior violent incidents to attack

his credibility.   Stanley, 110 Hawai#i at 126, 129 P.3d at 1154.

The first incident involved the witness being attacked by a

security guard and causing severe injury in self defense and the

second incident was when the witness allegedly "choked out"

another person and was charged with assault.         Id.    This court

                                    5
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


noted that, in Geston, the Ninth Circuit Court of Appeals held

that the witness's prior conduct was neither probative of his

character for untruthfulness or his credibility, therefore, the

trial court did not err by excluding the evidence.      Id.   We then

stated:   "Unlike evidence of a witness's past sexual conduct,

improper giving of a gift, or prior violent incidents, evidence

of a witness's forgery has been held to be 'probative of

untruthfulness.'"   Id.   Thus, in Stanley, this court held that

prior violent acts are not probative of untruthfulness.
           In State v. Estrada, 69 Haw. 204, 218-19, 738 P.2d 812,

823 (1987), citing Rule 404(b) of the Hawaii Rules of Evidence,

the supreme court held that an officer's "attitude problem,

without any specific instances of violence, aggression, or abuse

of official powers, did not relate to" a defendant's self-defense

claims.   (Internal quotation marks omitted).    Thus, assaultive

type behavior may be used to impeach a witness if it relates to a

claim of self-defense.

           HRS § 703-304(1) (2014) states:    "Subject to the

provisions of this section and of section 703-308, the use of

force upon or toward another person is justifiable when the actor

believes that such force is immediately necessary for the purpose

of protecting himself against the use of unlawful force by the

other person on the present occasion."     OVUII does not involve

the use of force by any person, thus, self-defense pursuant to

HRS § 703-304 is inapplicable.

           Recently, in Boyd v. State, CAAP-XX-XXXXXXX, 2019 WL

3082992 *4, (Haw. App. July 15, 2019) (SDO), cert. rejected,

                                  6
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


SCWC-XX-XXXXXXX, 2019 WL 6492519 (Haw. Dec. 3, 2019), this court

rejected Lee Ki Boyd's (Boyd) claim that the prosecution violated

the Brady rule when it failed to disclose prior to trial that an

officer was prosecuted for shoplifting.          Boyd argued that such

information could be used to impeach the officer by showing bias,

self-interest, or other factors that might undermine the

credibility or reliability of the officer's testimony in Boyd's

OVUII trial.    This court stated:

                  Boyd provides no legal authority in support, and
            more importantly, fails to explain why Officer Yee's
            actions were deceptive as to affect his credibility as
            a witness or how the information would undermine the
            reliability of Officer Yee's testimony in any way.
            Rather, Boyd simply reiterates the facts underlying
            Officer Yee's shoplifting prosecution.
                  The record also does not support Boyd's
            argument. The subpoenaed documents submitted with the
            September 12, 2017 Filing of Police Documents Under
            Seal chronicle exactly what Boyd describes. They do
            not, however, reflect that Officer Yee's four-year-old
            shoplifting incident had any probative value on the
            truth and veracity of Officer Yee as a witness in
            Boyd's unrelated OVUII trial.

Id. at *4-*5 (format altered).

            Contrary to Estrada's claim, prior assaultive-type

behavior by Officer Seti would not have provided context for an
alleged use of excessive force to arrest Estrada or explained

Estrada's yelling and screaming or talking loudly, which was also

described in testimony by a motorist who was in the car behind

Estrada.4   Officer Seti testified that he had to restrain Estrada

after she kept pulling away while being arrested, and that she

attempted to walk away after being told she was under arrest for

OVUII.    During the incident, both before and after she was

      4
            The motorist's further testimony of her observations of the
incident was consistent with Officer Seti's testimony.

                                      7
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


arrested, Estrada yelled or screamed that she was a driving

instructor, she was a preschool teacher, she was okay to drive,

and she was not drunk.   Thus, the record does not reflect that

Estrada's behavior changed due to force allegedly used to arrest

her and Officer Seti's alleged conduct did not explain Estrada's

yelling and screaming.   In addition, Estrada explained her

conduct as responding back in a loud volume, and described it as,

"I was being myself."

           Estrada also claims that a prior assaultive-type
incident involving Officer Seti would show "bias, interest, or

motive under HRE Rule 609.1" because "it could also explain why

he minimized his behavior in this case or why it was important

for him to exaggerate Estrada's reaction."       Estrada's argument is

merely a claim Officer Seti would not testify truthfully due to a

prior assaultive-type incident.       However, as the supreme court

has observed, "[i]t is hard to see any rational connection

between, say, a crime of violence and the likelihood that the

witness will tell the truth."    Asato, 52 Haw. at 293, 474 P.2d at

295.   Also, contrary to Estrada's claim, the District Court did

not cite Estrada's yelling while in Officer Seti's vehicle as

evidence of intoxication.   Rather, it appears that the District

Court noted her behavior to support its conclusion that Estrada

was intoxicated, because Officer Seti testified that he could

still smell the odor of alcohol coming from Estrada due to her

continued yelling in his vehicle.

           (2)   When the evidence adduced at trial is considered

in the strongest light for the prosecution, there was substantial

                                  8
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


evidence to support Estrada's conviction for OVUII.      See State v.

Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007).

Estrada failed to heed warning flares that Kalanianaole Highway,

which is a public way, road, street, or highway, was closed due

to a traffic accident.   Estrada also attempted to circumvent a

police officer's vehicle blocking the road.     After Officer Seti

stopped Estrada from proceeding further, he noticed Estrada

smelled of alcohol after she rolled down her window, her eyes

were red, and she slurred her speech.     Estrada fell to the ground
while attempting to exit her vehicle, and her vehicle rolled

forward into the nearby mountain, because it had not been

securely parked.   We conclude that there was sufficient evidence

for the trial court to conclude that Estrada operated or assumed

actual physical control of a vehicle while under the influence of

an intoxicant in an amount sufficient to impair her ability to

care for her person and guard against casualty.

          For these reasons, the District Court's May 29, 2018

Final Judgment is affirmed.

          DATED: Honolulu, Hawai#i, June 5, 2020.

On the briefs:                        /s/ Lisa M. Ginoza
                                      Chief Judge
Allen M. Kaneshiro,
for Defendant-Appellant.              /s/ Katherine G. Leonard
                                      Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney,          /s/ Keith H. Hiraoka
City and County of Honolulu,          Associate Judge
for Plaintiff-Appellee.




                                  9
