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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0003062
                                                              05-DEC-2016
                                                              10:24 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                             ROBERT TETU,
                   Petitioner/Defendant-Appellant.


                            SCWC-13-0003062

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-13-0003062; CR. NO. 10-1-0833)

                            DECEMBER 5, 2016

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

                OPINION OF THE COURT BY POLLACK, J.

          This case presents the question of whether a defendant

charged with committing a criminal offense on private property

has a right to visit the crime scene.        We hold that the

constitutional provisions providing for effective assistance of

counsel and a fair trial afford a defendant, subject to
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appropriate restrictions, with the right to access the scene of

the alleged offense.

                            I.   BACKGROUND

                       A. Circuit Court Proceedings

          On March 25, 2010, at about 2:00 a.m., a surveillance

camera filmed Robert Tetu, who was wearing a backpack, entering

the uninhabited basement area of Maunaihi Terrace, a private

condominium building in Honolulu.        The video footage recorded

Tetu entering into two locked utility closets with an unknown

tool and wiping the door knobs afterwards with his jacket. 1               Tetu

is then seen leaving the closet with a backpack-type bag in one

hand, a black plastic garbage bag in the other hand, and a “mini

mag light type flash light” in his mouth.         The next day, after

reviewing the video footage, the condominium manager inspected

the storage closets and noticed that an electric grinder and

several emergency lights and batteries were missing.

          On May 24, 2010, Tetu was charged with burglary in the

second degree in violation of Hawaii Revised Statutes

(HRS) § 708-811 (1993). 2    As part of discovery, the defense


     1
          “Storage closets” and “utility closets” are used interchangeably.
     2
          HRS § 708-811 provides in relevant part,

          (1) A person commits the offense of burglary in the second
          degree if the person intentionally enters or remains
          unlawfully in a building with intent to commit therein a
          crime against a person or against property rights.

                                                             (continued. . .)

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received the police reports, which included copies of the

surveillance footage, eight photographs, and two diagrams of the

basement where the utility closets were located.            The

photographs showed the fire-exit door through which Tetu

entered, the short hallway where the surveillance camera was

located, the exterior doors to the utility closets, and a few

items on the shelves inside one of the storage closets.              Tetu’s

counsel went to Maunaihi Terrace on November 18, 2010 in order

to inspect the premises, but he was denied access and told to

“coordinate an inspection through the resident manager.”

Thereafter, defense counsel sent an email to the condominium

manager to arrange a visit.        The email, which was copied to the

prosecutor, informed the manager that the prosecutor was also

interested in visiting the condominium.           In response to the

email, the manager told Tetu’s counsel that the request would be

presented to the condominium homeowner’s association or board of

directors.       Counsel, however, did not receive a further

response.

            Tetu filed a pretrial motion to compel discovery in

the Circuit Court of the First Circuit (circuit court) 3


(. . .continued)
            (2) Burglary in the second degree is a class C felony.

HRS § 708-811.
      3
             The Honorable Colette Y. Garibaldi presided.



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requesting access to the condominium premises, arguing that

“location is everything” and that “[t]he defense must examine

the area from its own perspective.”        The motion provided four

reasons why access to the condominium was necessary.           First,

“[t]he State’s diagrams, video[,] and photograph discovery d[id]

not adequately orient [Tetu] and [his] counsel to the area in

question for purposes of cogently presenting this case to a

jury.”   Second, the footage only included a “partial photo” of

the interior of one of the utility closets.          Third, noting that

the diagrams were not drawn to scale, the defense requested

access to “help counsel to intelligently question and cross-

examine witnesses, present visual evidence to the jury and to

understand the account” of Tetu, who was in custody.           Fourth,

access was needed to “photograph areas which may be significant

to the defense if they are not already depicted in the discovery

already produced.”    The motion requested that the court issue an

order directing the prosecution “to make Maunaihi Terrace

available for inspection, measurement, and photographs” or

directing the complaining witness to make the premises available

under reasonable conditions.

           The State opposed the motion, arguing that Rule 16 of

the Hawaiʻi Rules of Penal Procedure (HRPP) (2012) only required

the prosecution to deliver material and information within the

prosecutor’s possession or control or in the possession or

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control of other governmental personnel.             The State also argued

that because eight months had passed before defense counsel

first attempted to access the condominium and fifteen months had

elapsed since the incident, any inspection or photographs taken

of the premises would not accurately depict the scene at the

time of the offense and would not be relevant or admissible

under Rule 401 4 and Rule 402 5 of the Hawaii Rules of Evidence

(HRE).    Alternatively, the State contended that, even if access

to the premises was relevant, access should be barred under HRE

Rule 403 6 because it would be cumulative of the materials already

provided to Tetu by the prosecution.

      4
            HRE Rule 401 states in pertinent part,

            “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 (1993).
      5
            HRE Rule 402 provides,

            All relevant evidence is admissible, except as otherwise
            provided by the Constitutions of the United States and the
            State of Hawaii, by statute, by these rules, or by other
            rules adopted by the supreme court. Evidence which is not
            relevant is not admissible.

HRE Rule 402 (1993).
      6
            HRE Rule 403 states,

            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.

HRE Rule 403 (1993).


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          A hearing was held on the motion to compel discovery.

No representatives from Maunaihi Terrace were present.            Defense

counsel argued that Tetu’s constitutional rights to effective

representation and to confront witnesses would override any

privacy considerations.     The circuit court concluded, however,

that any evidence at the condominium would not be relevant under

HRE Rule 401.   The court also determined that because there was

video surveillance, there was “no real plausible justification”

for access to the crime scene.       The court stated that Tetu’s

request for access “appears to be speculative and conjecture

with a hope to turn up something.”        Additionally, the court

noted that because time had passed since March 2010, access to

the condominium might not have been helpful.          Accordingly, the

court held that HRPP Rule 16 did not apply to Tetu’s request for

access and denied the motion to compel.

          Approximately two months later, the prosecution--

without defense counsel’s knowledge--visited the crime scene

with the condominium manager to inspect the basement and take

additional photographs.     When the defense was provided with

these new photographs prior to trial, Tetu sought to exclude

their admission into evidence.       The defense argued that fairness

demanded that the prosecution not be allowed to visit the crime

scene and collect evidence for presentation at trial after the

defense’s request to do the same was denied.          The prosecutor

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stated that she went to the condominium to take additional

photographs so that the jurors could have “a bigger or a better

idea” of what the condominium building looked like.            Tetu’s

counsel argued that this was inconsistent with the State’s

earlier position that there was “no need” to take additional

photographs of the alleged crime scene. 7

            In response to the court’s question regarding the two

sets of photographs, defense counsel stated that while the new

photographs showed differences in the closets’ contents, major

differences were not apparent.        The court concluded that because

of the existence of the video footage and the facts of the case,

it stood by its original ruling denying the motion to compel

discovery. 8   The court also denied the defense’s motion to

exclude admission of the prosecution’s newly obtained

photographs.




      7
            There was a change in the assigned prosecutor between the
defense’s motion to compel discovery and the hearing to exclude the
additional photographs.
      8
            The circuit court noted, “I do recall the earlier motion [to
compel discovery] as well since the Court presided over it.” The court
referenced Henshaw v. Commonwealth, 451 S.E.2d 415 (Va. Ct. App. 1994), a
case in which the defense counsel requested access to the crime scene based
on reasons very similar to those Tetu’s counsel had articulated. There, the
Court of Appeals of Virginia held that although defense counsel should have
been granted access to the crime scene, the error was harmless. Id. at 420.
The circuit court distinguished Henshaw from Tetu’s request because, in
Henshaw, there was no video surveillance and one of the claims was self-
defense in which specifications of a room’s height, width, and length were
relevant.



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          At trial, the State’s first witness was the

condominium manager.     Using a blueprint of the condominium, the

prosecution asked the manager to orient the court to the

location of the elevators and the utility closets in the

basement of the building.

          [Manager]: Well, there’s elevator mauka and elevator makai,
          and it’s called electrical closet and it’s called
          stor[age], but it’s another electrical closet.

          [Prosecutor]: Okay. So they’re right across from each
          other, the two utility rooms?

          [Manager]: Yes, and that’s the little hallway there.

The prosecution used the photographs that the defense had moved

to exclude to identify several objects and rooms shown in the

photographs.   Next, the prosecution played the surveillance

video for the jury and asked the manager to narrate what he saw

and to place the events of the video in context with the

building’s layout.

          [Prosecution]: And what part of the basement is that?

          [Manager]: He just headed towards the laundromat, the
          laundry room.

          [Prosecution]: And is there a hallway that connects all
          sides of the basement to the elevators?

          [Manager]: Sorry, yes. There’s another hallway just like
          this right on that side where he just emerged from.

The manager described Tetu breaking into two of the closets with

some kind of tool, wiping the door handles with his jacket, and

leaving the closets with a bag of “stuff” and a flashlight in

his mouth.   The manager testified that the wood around the door


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knobs was damaged after the incident and that only those persons

with keys had access to the storage closets, as he always kept

the doors to the closets locked.

          Tetu’s counsel cross-examined the condominium manager

and likewise attempted to establish the layout of the basement

area where the utility closets were located.

          [Defense]: When we went over the photographic evidence, you
          made reference to a makai utility room and a mauka utility
          room, correct?

          [Manager]: Yes.

          [Defense]: Okay. And when I saw some reports referenced to
          east and northeast utility closets, do you ever use those
          distinctions?

          [Manager]: I don’t, no.

          [Defense]: So if there’s a reference to an east closet,
          would you be able to tell us if that’s the mauka or makai
          one?

          [Manager]: I’ve never heard it referred to as the east or -
          - or what did you say?

          [Defense]: Northeast.     So your distinction is mauka-makai?

          [Manager]: Yes.

                . . . .

          [Defense]: Okay. Sir, I’m going to show you Exhibits 23
          and 24 in evidence. I’ll ask you -- this is 23. Which --
          which utility closet is this one?

          [Manager]: This is the mauka utility closet.

          [Defense]: And, okay, and 24 would be makai?

          [Manager]: It’s the same -- no, it’s the same one.

          [Defense]: It’s the same closet?

          [Manager]: Yeah.

          [Defense]: Oh, okay.    Sorry.   Oh, my mistake.   Okay.



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          Tetu testified that he did what was shown on the

video, but that he entered the building to retrieve his then-

wife’s clothing and not to steal anything.         Tetu explained that

he had been arguing with his former wife, with whom there was a

substantial language barrier, when he dropped her off near

Manauihi Terrace a few hours prior to the incident.           He

testified that she called him to pick her up and that when he

arrived, she let him into the building.         Tetu stated that he

went in to help her pick up her bag, and she told him that it

was in a closet by an elevator.       Tetu explained that he used a

piece of wire to open the closet, which is where he found his

former wife’s bag.    He related that he looked inside the bag to

make sure it contained her clothes and left without taking

anything else.    Tetu testified that there were more valuable

things in the closet, such as a computer, and that if he had

intended to take anything, it would not have been a flashlight

and some batteries.

          Tetu’s former wife testified as a rebuttal witness for

the State.   She related that she never asked Tetu to pick up a

bag of her clothes and that she had never been to Maunaihi

Terrace or stored anything there.

          In its closing argument, the defense argued that

because Tetu entered with the intent to retrieve his former

wife’s clothing and not to steal anything, Tetu was a

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trespasser, not a burglar.        The court instructed the jury on the

elements of burglary in the second degree and criminal trespass

in the first degree under HRS § 708-813 (Supp. 2000). 9            The jury

found Tetu guilty of burglary in the second degree, and he was

sentenced to five years of imprisonment.

                            B. Appellate Proceedings

            Tetu appealed the judgment of conviction to the

Intermediate Court of Appeals (ICA), arguing that (1) the

circuit court erred in denying his discovery request to access

the crime scene and that (2) the verdict was not supported by

the evidence adduced at trial.        The State responded that the

right to discovery in a felony case is the right to receive

material and information possessed by the prosecution and its

agents concerning the case.        Because the State did not possess


      9
            HRS § 708-813 provides in relevant part,

                  (1) A person commits the offense of criminal trespass
            in the first degree if:

                  (a) That person knowingly enters or remains
            unlawfully:

                      (i) In a dwelling; or

                      (ii) In or upon the premises of a hotel or
                           apartment building.

                  . . . .

                  (2) Criminal trespass in the first degree is a
            misdemeanor.

HRS § 708-813.



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or have control over Maunaihi Terrace, the State maintained that

defense counsel did not have a right under HRPP Rule 16 to

compel discovery of the condominium.        Further, the State argued

that the appearance and configuration of the condominium more

than a year after the incident rendered Tetu’s reasons for

requesting access irrelevant.       In response, Tetu contended that

the passage of time alone does not diminish the importance of

accessing the crime scene and that inspecting areas of the

property would have likely shown an exit-only door with no signs

of forced entry, corroborating that his former wife let him into

the condominium.

           The ICA issued a memorandum opinion affirming Tetu’s

conviction.   Citing case law from other states, the ICA observed

that the court must balance the defendant’s need for access to

the crime scene with the private party’s right to privacy.             The

ICA noted, “A speculative or conclusory showing, or the failure

to explain how the proposed inspection would yield information

different from that already disclosed in discovery, is

insufficient to overcome the privacy rights of the private

party.”   The ICA held that a defendant must “make a prima facie

showing of how the proposed inspection would be relevant and

material to his or her defense” and “demonstrate sufficient

‘plausible justification’ and ‘good cause’ for the intrusion.’”

The ICA ruled that Tetu did not sufficiently explain to the

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circuit court how becoming familiar with the scene was relevant

to his defense.    Thus, it affirmed the circuit court’s order

denying Tetu’s motion to compel discovery.         The ICA also

rejected Tetu’s claim that there was insufficient evidence to

support his conviction.

          This court granted certiorari to address the following

questions raised by Tetu: (1) whether the ICA erred in affirming

the circuit court’s denial of the motion to compel discovery;

and (2) whether the ICA erred in finding that Tetu’s conviction

was supported by substantial evidence.

                    II.       STANDARD OF REVIEW

          This court reviews questions of constitutional law “by

exercising our own independent constitutional judgment based on

the facts of the case.”     State v. Phua, 135 Hawaiʻi 504, 511-12,

353 P.3d 1046, 1053-54 (2015); accord State v. Mundon, 121

Hawaiʻi 339, 349, 219 P.3d 1126, 1136 (2009).          Therefore,

questions of constitutional law are reviewed under the

right/wrong standard.     Phua, 135 Hawaiʻi at 512, 353 P.3d at

1054; accord State v. Auld, 136 Hawaiʻi 244, 250, 361 P.3d 471,

477 (2015).




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                            III.     DISCUSSION

                          A. Motion to Compel Discovery

           1. Right to Access the Crime Scene Under HRPP Rule 16

             The issue of whether a defendant has a right to

inspect the crime scene is one of first impression before this

court.     A defendant has a right under HRPP Rule 16 10 to discover

“material and information within the prosecutor’s possession or

control.”     HRPP Rule 16 (2012).      Because the State was not in

possession of Maunaihi Terrace, HRPP Rule 16 does not expressly

provide the defense with access to the crime scene. 11            However,


      10
             HRPP Rule 16 provides in relevant part,

                   (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:

                       . . . .

                     (2) Disclosure of Matters Not Within Prosecution’s
             Possession. Upon written request of defense counsel and
             specific designation by defense counsel of material or
             information which would be discoverable if in the
             possession or control of the prosecutor and which is in the
             possession or control of other governmental personnel, the
             prosecutor shall use diligent good faith efforts to cause
             such material or information to be made available to
             defense counsel; and if the prosecutor’s efforts are
             unsuccessful the court shall issue suitable subpoenas or
             orders to cause such material or information to be made
             available to defense counsel.

HRPP Rule 16 (2012).

      11
            The State cited Honolulu Police Dep’t v. Town, 122 Hawaiʻi 204,
225 P.3d 646 (2010), in which this court stated that “the discovery right is
governed and limited by HRPP Rule 16.” Id. at 214, 225 P.3d at 656.
However, the discovery right under HRPP Rule 16 cannot limit a constitutional
                                                              (continued. . .)

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the 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.      See United States v. Yoshimura, 831 F.

Supp. 799, 805 (D. Haw. 1993) (“In criminal cases discovery is

limited to that required by the due process clause of the

Constitution, which requires that the Government make available

evidence that is material to guilt or punishment.”); see also

United States v. Richter, 488 F.2d 170, 173 (9th Cir. 1973)

(stating that although discovery was not allowed under Federal

Rules of Criminal Procedure Rule 16, “the rules themselves do

not purport to set outer limits on the power of the court”).

Accordingly, we consider whether there is a constitutional right

to access a crime scene when the defendant is alleged to have

committed the offense on private property. 12


(. . .continued)
right. See State v. Pond, 118 Hawaiʻi 452, 481, 193 P.3d 368, 397 (2008)
(“The impairment of a defendant’s constitutional rights must be considered
and weighed against the imposition of a rule excluding evidence. Failure to
do so impermissibly relegates the defendant’s constitutional rights to that
of rule status.”); cf. State v. Calbero, 71 Haw. 115, 124, 785 P.2d 157, 161
(1989) (noting that an evidence rule “cannot override the constitutional
rights of the accused”). To the extent that Town indicated that the
discovery right is “governed and limited” by HRPP Rule 16, it is overruled.
      12
            Although it is not necessary to determine in this case, HRPP Rule
17 may allow a court to use its subpoena power to grant access to a crime
scene. HRPP Rule 17(b) authorizes a court to issue a subpoena to “command
the person to whom it is directed to produce the books, papers, documents or
other objects . . . prior to the time when they are to be offered in evidence
and may upon their production permit . . . [the objects] to be inspected by
the parties and their attorneys.” HRPP Rule 17(b) (2007). In Commonwealth
v. Matis, 915 N.E.2d 212 (Mass. 2006), the Supreme Judicial Court of
Massachusetts interpreted Massachusetts Rules of Criminal Procedure Rule
17(a)(2), which is nearly identical to HRPP Rule 17(b), to authorize the
court to compel access to the complainant’s home where a sexual assault
                                                              (continued. . .)

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           2. Constitutional Right to Access the Crime Scene

            a.    Right to Effective Assistance of Counsel

            Article I, section 14 of the Hawaiʻi Constitution

guarantees a defendant in a criminal prosecution the right “to

have the assistance of counsel for the accused’s defense.” 13

Haw. Const. art I, § 14.       The constitutional right to the

assistance of counsel is satisfied “only when such assistance is

‘effective.’”     State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977,

979 (1972) (internal citations omitted).          A counsel’s

effectiveness is not determined only by what happens at trial,

and a court may find a counsel’s assistance is ineffective if


(. . .continued)
allegedly occurred. Id. at 634-35. “The fact that the object here cannot be
physically brought to court by the third party makes no difference. Its
features can be introduced in evidence, and an order for pretrial access
under rule 17(a)(2) will expedite the use of such evidence at trial.” Id. at
635. The Massachusetts court noted that requests under Rule 17(a)(2) must
be, inter alia, evidentiary and relevant. Id.

            While HRPP Rule 17 is “not a rule providing for an additional
means of discovery,” Town, 122 Hawaiʻi at 214, 225 P.3d at 656 (quoting State
v. Pacarro, 61 Haw. 84, 86, 595 P.2d 295, 297 (1979)), the features of a
crime scene are routinely admissible into evidence.

      13
            Article I, section 14 of the Hawaiʻi Constitution provides in
relevant part,

            In all criminal prosecutions, the accused shall enjoy the
            right to a speedy and public trial by an impartial jury of
            the district wherein the crime shall have been committed,
            which district shall have been previously ascertained by
            law, or of such other district to which the prosecution may
            be removed with the consent of the accused; to be informed
            of the nature and cause of the accusation; to be confronted
            with the witnesses against the accused . . . and to have
            the assistance of counsel for the accused’s defense.

Haw. Const. art I, § 14.



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counsel failed to conduct adequate pretrial investigations.

State v. Aplaca, 74 Haw. 54, 67-71, 67 n.2, 837 P.2d 1298, 1305-

07, 1305 n.2 (1992) (noting that “under Hawaii’s Constitution,

defendants are clearly afforded greater protection of their

right to effective assistance of counsel” than under the United

States Constitution).     Additionally, this court observed in

Aplaca that “[i]f counsel does not adequately investigate the

underlying facts of a case[,] . . . counsel’s performance cannot

fall within the ‘wide range of reasonable professional

assistance.’   This is because a decision not to investigate

cannot be considered a tactical decision.”         Id. at 71, 837 P.2d

at 1307 (quoting State v. Templin, 805 P.2d 182, 188 (Utah

1990)).   The standard for determining the adequacy of counsel’s

representation is “whether, when viewed as a whole, the

assistance provided is ‘within the range of competence demanded

of attorneys in criminal cases.’”        State v. Antone, 62 Haw. 346,

348, 615 P.2d 101, 104 (1980) (quoting Kahalewai, 54 Haw. at 30,

501 P.2d at 979).    Thus, a defendant in a criminal case is

entitled to counsel who will represent him or her with the

competence generally demanded of defense attorneys.           See id.

           A review of several jurisdictions’ codes and

performance standards for defense attorneys indicates that in

order to assure competent representation, defense counsel should

investigate the crime scene and consider seeking access as early

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as possible, unless circumstances suggest it would be

unnecessary in a given case.        The American Bar Association’s ABA

Standards for Criminal Justice: Prosecution and Defense Function

(ABA Standards) states, “Many important rights of a criminal

client can be protected and preserved only by prompt legal

action.”    Id. § 4-3.7(a) (4th ed. 2015).        Thus, “[d]efense

counsel should promptly seek to obtain and review all

information relevant to the criminal matter, including but not

limited to requesting materials from the prosecution.”             Id. § 4-

3.7(b).    In addition to seeking information from other sources

aside from law enforcement, see also id. § 4-4.1(c), counsel for

a defendant has a specific duty with regard to investigating a

case.    “Defense counsel’s investigative efforts should commence

promptly and should explore appropriate avenues that reasonably

might lead to information relevant to the merits of the matter .

. . .”    Id. 14




      14
            “The duty to investigate is not terminated by factors such as the
apparent force of the prosecution’s evidence, a client’s alleged admissions
to others of facts suggesting guilt, a client’s expressed desire to plead
guilty or that there should be no investigation, or statements to defense
counsel supporting guilt.” ABA Standards § 4-4.1(b).

            “Counsel’s investigation should also include evaluation of the
prosecution’s evidence (including possible re-testing or re-evaluation of
physical, forensic, and expert evidence) and consideration of
inconsistencies, potential avenues of impeachment of prosecution witnesses,
and other possible suspects and alternative theories that the evidence may
raise.” Id. § 4-4.1(c).



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             The commentary to the ABA Standards emphasizes that

“without adequate investigation[,] the lawyer is not in a

position to make the best use of such mechanisms as cross-

examination or impeachment of adverse witnesses at trial.” 15               Am.

Bar Ass’n, ABA Standards for Criminal Justice: Prosecution

Function and Defense Function § 4-4.1 Commentary, at 183 (3d ed.

1993).     The commentary further states that if there were

eyewitnesses to the alleged crime, then “the lawyer needs to

know conditions at the scene that may have affected their

opportunity as well as their capacity for observation.”              Id.

             The National Legal Aid and Defender Association’s

(NLADA) Performance Guidelines for Criminal Defense

Representations, which was adopted by the Defender Services

Advisory Group in 2015, also recommends early inspection of the

crime scene:

             Counsel should consider seeking access to the scene as soon
             as possible, accompanied by appropriate personnel to assist
             in documenting conditions. Counsel should consider seeking
             access to the scene under circumstances as similar as
             possible to those existing at the time of the alleged
             incident (e.g., weather, time of day, and lighting
             conditions), if different from the initial view of the
             scene.

Nat’l Legal Aid & Def. Ass’n, NLADA’s Performance Guidelines for

Criminal Defense Representations § 4.1(b)(6), at 10 (1995).


      15
            The commentary for the most recent fourth edition of the ABA
Standards, published in 2015, is not yet available. Thus, the prior
edition’s commentary for the predecessor standard is referenced.



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          Chapter 211D of the Massachusetts General Laws

establishes the Committee for Public Counsel Services that is

responsible for establishing standards and monitoring the

performance of counsel “in order to insure competent

representation of defendants.”       Mass. Gen. Laws ch. 211D, §§ 1,

10 (1990).   In its Performance Standards Governing

Representation of Indigents in Criminal Cases, the Committee

states, “Counsel should go to the scene of the alleged crime in

a timely manner--prior to the pre‐trial hearing when necessary--

or prior to an evidentiary hearing or trial.          Counsel should

consider obtaining fair and accurate photographs, fair and

accurate maps of the area and, where relevant, measurements.”

Comm. for Pub. Counsel Servs., Criminal: Performance Standards

and Complaint Procedures, in Assigned Counsel Manual Policies

and Procedures Ch. 4, Part I (IV)(A) (2011).

          Similarly, Louisiana Revised Statutes section 15:146

(2014) establishes the Louisiana Public Defender Board that is

charged with, inter alia, “[c]reating mandatory qualification

standards for public defenders that ensure that the public

defender services are provided by competent counsel.”            La. Rev.

Stat. § 15:148(B)(2) (2008).      The Public Defender Board’s Trial

Court Performance Standards provides, “Where appropriate,

counsel should attempt to view the scene of the alleged offense

as soon as possible after counsel is appointed.          This should be

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done under circumstances as similar as possible to those

existing at the time of the alleged incident.”          La. Pub. Def.

Bd., Louisiana Public Defender Board Trial Court Performance

Standards § 717(B)(6), at 14 (2010).        Further, in its

performance standards for representation in capital cases, the

Public Defender Board states that “[c]ounsel should conduct a

high quality, independent and exhaustive investigation of all

available sources of information utilizing all available tools

including live witness interviews, compulsory process, public

records law, discovery, [and] scene visits[.]”          La. Pub. Def.

Bd., Performance Standards for Criminal Defense Representation

in Indigent Capital Cases § 1907(B)(1) (2015).          The Board

elaborates that counsel should take full advantage of the direct

observations of relevant locations, noting that

          [c]ounsel should attempt to view the scenes of the alleged
          offense and other relevant events as soon as possible after
          counsel is assigned [and] . . . should extensively,
          precisely, and accurately document the condition of any
          relevant scene using the most appropriate and effective
          means, including audio-visual recordings, diagrams, charts,
          measurements, and descriptive memoranda. The condition of
          the scenes should always be documented in a manner that
          will permit counsel to identify and prove the condition of
          the scenes without personally becoming a witness.

Id. § 1907(B)(8)(f)(i).

          The State Bar of Texas in its Performance Guidelines

for Non-Capital Criminal Defense Representation likewise states

that “[w]hen appropriate, counsel or an investigator should

attempt to view the scene of the alleged offense as soon as


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possible after counsel is appointed or retained. . . .            Counsel

should consider the taking of photographs and the creation of

diagrams or charts of the actual scene of the offense.”            State

Bar of Tex., Performance Guidelines for Non-Capital Criminal

Defense Representation § 4.1(B)(8) (2011).         Many other states

have developed similar performance standards recommending that

defense counsel visit the crime scene as appropriate.            See, e.g,

N.D. Comm’n on Legal Counsel for Indigents, Minimum Attorney

Performance Standards: Criminal Matters § 7.1 (6) (“Where

appropriate, counsel should attempt to view the scene of the

alleged offense as soon as possible after counsel is appointed.

. . .   Counsel should consider the taking of photographs and

creation of diagrams or charts of the actual scene of the

offense.”); accord Va. Indigent Def. Comm’n, Commonwealth of

Virginia Standards of Practice for Indigent Defense § 4.1(b)(5)

(2015); N.M. Pub. Def. Comm’n & the Law Offices of the Pub.

Def., Performance Standards for Criminal Defense Representation

§ 4.1(b)(7) (2014); S.C. Comm’n on Indigent Def., Performance

Standards for Public Defenders and Assigned Counsel (Non-

Capital) § 4.1(b)(7) (2013); Ga. Pub. Def. Standards Council,

State of Georgia Performance Standards for Criminal Defense

Representation in Indigent Criminal Cases § 4.A(B)(f) (2004).

Thus, defense counsel’s investigation of the crime scene has

been widely recognized as an essential task in providing legal

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assistance within the range of competence demanded of attorneys

in criminal cases.

          Some courts have concluded that defense counsel’s

access to the crime scene implicates a defendant’s right to

effective assistance of counsel.         In affirming a family court’s

discovery and inspection order, the New Jersey Supreme Court in

State in Interest of A.B., 99 A.3d 782, 789, 794 (N.J. 2014),

held that a defendant’s constitutional right to a fair trial

allowed the defendant’s counsel to access the residence where a

sexual assault had allegedly occurred.         The court determined

that “[t]he right to the effective assistance of counsel in a

criminal proceeding includes the right to conduct a reasonable

investigation to prepare a defense,” id. at 785, and that a

“defense attorney’s visit to the scene of the crime . . . might

constitute a professional obligation.”         Id. at 793.    The court

further noted that “[v]isiting the scene of the crime can be

critical in preparing a defense” and “the failure of a defense

attorney ‘to conduct an investigation of the crime scene’ can

constitute ineffective assistance of counsel.”          Id. at 790

(quoting Thomas v. Kuhlman, 255 F. Supp. 2d 99, 112 (E.D.N.Y.

2003)); see also Williams v. Washington, 59 F.3d 673, 680-82

(7th Cir. 1995) (determining that failure to investigate and

visit the scene rendered defense counsel’s performance deficient

and violated the defendant’s Sixth Amendment rights); Thomas,

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255 F. Supp. 2d at 109 (“[I]f properly armed with the easily

discoverable facts concerning the layout of the victim’s

apartment building, counsel would likely have chosen to

highlight the implausibility of the prosecution’s theory of the

crime.”).

            These standards show that visiting the crime scene is

integral to providing an effective defense.           Indeed, in this

case, defense counsel’s reasons for requesting access to

Maunaihi Terrace primarily concerned his ability to effectively

represent Tetu. 16    Tetu’s counsel requested access to the crime

scene so that he could cogently present the case to a jury,

cross-examine witnesses, and understand Tetu’s account of the

events.    A review of the transcript at trial indicates a

disparity between the prosecution’s direct examination and the

defense counsel’s cross-examination of the condominium manager.

During direct examination, the prosecutor--who had access to the

premises--asked the manager to describe what he saw while the

surveillance footage played before the jury.           As the manager

described the layout of the basement, the prosecutor added to

the manager’s narrative, asking, “And is there a hallway that
      16
            Although not mentioned in the motion to compel discovery, Tetu’s
counsel at oral argument to this court stated that he wanted access to the
crime scene “on a personal level” because he “tend[s] to be directionally
challenged” and struggles with telling where things are by looking at a map
or diagram. See Oral Argument at 10:25-50, State v. Tetu, SCWC-13-0003062
(argued July 2, 2015),
http://oaoa.hawaii.gov/jud/oa/15/SCOA_070215_13_3062.mp3.



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connects all sides of the basement to the elevators?”            The

manager responded, “Sorry, yes.       There’s another hallway just

like this right on that side where he just emerged from.”

           In contrast, Tetu’s counsel spent the first part of

his cross-examination asking the manager to help him understand

the orientation of the utility closets.         At one point, Tetu’s

counsel confused the positioning of the storage closets and

apologized to the manager, “It’s the same closet? . . .            Oh,

okay.   Sorry.    Oh, my mistake.    Okay.”    Thus, the trial record

reflects that the specific reasons Tetu’s counsel asserted for

requesting access to the condominium were substantiated.

           The circuit court’s reliance on HRE Rule 401 to deny

Tetu’s motion to compel discovery was misplaced.           This rule

defines what evidence is relevant and consequently admissible.

See HRE Rule 401.     It does not contemplate a limit on the

defense’s ability to discover potentially admissible evidence.

See id.   As stated by the ABA Standards, defense counsel’s

investigative efforts “should explore appropriate avenues that

reasonably might lead to information relevant to the merits of

the matter.”     ABA Standards § 4-4.1(c).      HRE Rule 401 is also

inapplicable because several of the reasons Tetu’s counsel

offered for obtaining access to the property did not indicate a

desire to introduce evidence but were related to obtaining an



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understanding of the building’s layout so that counsel could

effectively present the case to the jury. 17

            In sum, under article I, section 14 of the Hawaiʻi

Constitution, a defendant is entitled to the assistance of an

attorney whose representation falls within the range of

performance demanded of attorneys in criminal cases.            There is a

broad consensus across the United States that competent defense

counsel should access the crime scene unless, after a careful

investigation of the underlying facts of a case, counsel makes a

reasonable determination that access is not necessary to provide

effective assistance of counsel. 18       Thus, a defendant’s ability

to access the crime scene inheres within the right to effective

assistance of counsel guaranteed by article I, section 14 of the

Hawaiʻi Constitution. 19

      17
            The State’s argument concerning HRE Rule 403, which allows a
court to exclude evidence that will cause “undue delay, waste of time or
needless presentation of cumulative evidence,” is also not germane. Tetu’s
counsel moved to compel discovery, not to admit evidence. Arguing that the
evidence will cause “undue delay, waste of time, or needless presentation of
cumulative evidence” prior to the defense even requesting that the evidence
be admitted is inapposite.
      18
            The decision not to investigate a crime scene can constitute an
error or omission that reflects counsel’s lack of skill, judgment, or
diligence. See Aplaca, 74 Haw. at 71, 837 P.2d at 1307 (electing not to
investigate without adequate inquiry of the facts is not considered a
tactical decision); see also Antone, 62 Haw. at 348-49, 615 P.2d at 104-05
(stating the two-fold standard to establish ineffective assistance of
counsel).
      19
            Allowing defense counsel access to the crime scene may impinge on
the privacy rights of property owners. Accordingly, as discussed infra, a
court may place appropriate time, place, and manner restrictions on the
defendant’s access.



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                           b.   Due Process Right

           Article I, section 5 of the Hawaiʻi Constitution

provides, “No person shall be deprived of life, liberty or

property without due process of law[.]” 20        Haw. Const.

art. I, § 5.    A primary reason that a defendant is guaranteed

effective assistance of counsel is to ensure that the defendant

is not denied due process.       State v. Reed, 135 Hawaiʻi 381, 387,

351 P.3d 1147, 1153 (2015) (“The Constitution guarantees a fair

trial through the Due Process Clauses, but it defines the basic

elements of a fair trial largely through the several provisions

of the [s]ixth [a]mendment, including the [c]ounsel [c]lause.”

(alterations in original) (quoting United States v. Gonzalez-

Lopez, 548 U.S. 140, 150 (2006))).         Thus, while defense

counsel’s ability to visit the crime scene is a component of a

defendant’s right to effective assistance of counsel for the

reasons stated above, due process provides a separate guarantee

to a fair trial pursuant to which such access may be afforded.

See State v. Kaulia, 128 Hawaiʻi 479, 487, 291 P.3d 377, 385


     20
           Article 1, section 5 of the Hawaiʻi Constitution provides,

                 No person shall be deprived of life, liberty or
                 property without due process of law, nor be denied
                 the equal protection of the laws, nor be denied the
                 enjoyment of the person’s civil rights or be
                 discriminated against in the exercise thereof
                 because of race, religion, sex or ancestry.

Haw. Const. art. I, § 5.



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(2013) (“The due process guarantee of the . . . Hawaii

constitution [] serves to protect the right of an accused in a

criminal case to a fundamentally fair trial.” (alterations in

original) (quoting State v. Matafeo, 71 Haw. 183, 185, 787 P.2d

671, 672 (1990))).

            On several occasions, this court has stated that

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

accorded a meaningful opportunity to present a complete

defense.”    Id. (quoting Matafeo, 71 Haw. at 185, 787 P.2d at

672).   These decisions are consistent with the well-established

principle that “all defendants must be provided with the ‘basic

tool[s] of an adequate defense.’”         State v. Scott, 131 Hawaiʻi

333, 352, 319 P.3d 252, 271 (2013) (quoting Britt v. North

Carolina, 404 U.S. 226, 227 (1971)); see also Washington v.

Texas, 388 U.S. 14, 19 (1967) (determining that a “fundamental

element of due process” is the right to “present the defendant’s

version of the facts”).

            Discovery is at the very foundation of the fact finding
            process. Faithful adherence to discovery obligations
            serves the public interest: Discovery provides the basic
            information which is necessary to expedite trials and plea
            decisions in an already overburdened court system and
            promotes fairness in the adversary system.

State v. Valeros, 126 Hawaiʻi 370, 379, 271 P.3d 665, 674 (2012)

(quoting State v. Dowsett, 10 Haw. App. 491, 498, 878 P.2d 739,

743 (1994), overruled on other grounds by State v. Rogan, 91

Hawaiʻi 405, 423 n.10, 984 P.2d 1231, 1249 n.10 (1999)); see also

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Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (“[A] criminal trial is

fundamentally unfair if the State proceeds against an indigent

defendant without making certain that [the defendant] has access

to the raw materials integral to the building of an effective

defense.”).

           Due process contemplates mutual obligations of the

government and the defense as it relates to the discovery

process.   See State v. Davis, 63 Haw. 191, 195-96, 624 P.2d 376,

379-80 (1981) (stating that discovery under HRPP Rule 12.1 is a

“two-way street”).    “Although the Due Process Clause has little

to say regarding the amount of discovery which the parties must

be afforded, it does speak to the balance of forces between the

accused and his accuser.”      Wardius v. Oregon, 412 U.S. 470, 474

(1973) (citation omitted).

           Other jurisdictions have concluded that a defendant

has a right under the due process clause to investigate a crime

scene.   In Henshaw v. Commonwealth, 451 S.E.2d 415, 416 (Va. Ct.

App. 1994), the appellant was denied access to the site of the

crime scene located at a private residence, and he was

subsequently convicted of voluntary manslaughter.           The court

concluded that the “due process rights of . . . the Virginia

Constitution give a criminal defendant a right to view,




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photograph, and take measurements of the crime scene.” 21              Id. at

419.    A similar conclusion was reached in State v. Gonsalves,

661 So. 2d 1281 (Fla. Dist. Ct. App. 1995), in which the court

determined that a defendant charged with attempted burglary had

a due process right to inspect the crime scene.             Id. at 1282.

Likewise, in State v. Brown, 293 S.E.2d 569 (N.C. 1982), the

Supreme Court of North Carolina held that it was “a denial of

fundamental fairness and due process for [a] defendant to be

denied, under police prosecutorial supervision, a limited

inspection of the premises of the crime scene” in a capital case

in which the defendant’s counsel was denied access to a murder

scene.      Id. at 577-78.

              Review of the case law thus demonstrates that due

process includes the right of the defendant to access the crime

scene to obtain the raw materials integral to building an

effective defense.       Here, even though surveillance footage was

available, it did not show the inside of the closets or how Tetu

entered the building.        Tetu’s counsel requested access to the

property so that he could photograph areas not depicted in the

discovery already produced.         A defendant’s right to due process
       21
            The Henshaw court held that the due process rights of article I,
section 8 of the Virginia Constitution give a criminal defendant a right to
view, photograph, and take measurements of the crime scene, provided that the
defendant makes a showing that a substantial basis exists for claiming that
the proposed inspection and observation will enable the defendant to obtain
evidence relevant and material to his defense or to be able to meaningfully
defend himself. Henshaw, 451 S.E.2d at 419.



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is infringed when defense counsel is forced to rely on materials

provided by the government based on what the police or the

prosecution deems relevant at a crime scene--that is, what is

photographed, what is included in diagrams, or what is depicted

in a video and then disclosed in discovery.          In an adversarial

system, the right to a fair trial may be compromised when the

defendant is required to build a defense based upon the State’s

investigation.

          The performance standards and guidelines previously

discussed emphasize that counsel should investigate or have

adequately considered inspection of the crime scene.           A visit to

the crime scene may help counsel document and photograph

relevant characteristics of the scene, explore avenues of

possible defenses, determine if proceeding to trial would be

appropriate, enable a cohesive presentation to the factfinder,

and understand the defendant’s account of the events.            The

prosecution will generally have access to the crime scene via

police investigation or independent prosecutorial inquiry.             A

defendant is therefore likely to be at a disadvantage to a

prosecution that has more information about, and more

familiarity with, the crime scene.        See Dowsett, 10 Haw. App. at

498, 878 P.2d at 743 (“The ends of justice will best be served

by a system of liberal discovery which gives both parties the



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maximum possible amount of information with which to prepare

their cases . . . .” (quoting Wardius, 412 U.S. at 473)).

          Here, Tetu’s due process right under the Hawaiʻi

Constitution to access the materials vital to building an

effective defense and to have an opportunity similar to the

State to obtain information was impaired: first, by the denial

of defense counsel’s initial request for access to the crime

scene, and second, by the prosecutor’s visit to the scene

despite opposing Tetu’s motion on the basis that the defense

would not gain anything from an investigation of the scene.                As

this court has previously stated, “the growth of . . . discovery

devices is a salutary development which, by increasing the

evidence available to both parties, enhances the fairness of the

adversary system.”    State v. Pond, 118 Hawaiʻi 452, 464, 193 P.3d

368, 380 (2008) (quoting Wardius, 412 U.S. at 474).           In this

case, however, the circuit court’s decision to not utilize one

such discovery device to allow Tetu access to the crime scene

diminished the fairness of the adversary system.           See id.

          In short, under article I, section 5 of the Hawaiʻi

Constitution, a defendant has a due process right to a fair

trial.   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

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process.    Thus, the due process clause of the Hawaiʻi

Constitution provides a defendant with the right to access the

crime scene in order to secure the promises that a fair trial

affords.

                             3. Privacy Concerns

            In Hawaiʻi, the right to privacy is also a

constitutionally protected right. 22       Recognition of a defendant’s

constitutional right to access the crime scene may intrude upon

the privacy interests of those directly affected by a crime,

property owners, or other occupants of the premises, and an

inspection of the scene may be stressful to an alleged victim.

            The drafters of article I, section 6 of the Hawaiʻi

Constitution envisioned that the interests of the criminal

justice system would, at times, be significant enough to justify

intrusion on one’s right to privacy.         See Stand. Comm. Rep. No.

69 in 1 Proceedings of the Constitutional Convention of Hawaiʻi

of 1978, at 675 (1980) (“[A]t times the interests of national

security, law enforcement, the interest of the State to protect

the lives of citizens or other similar interests will be strong

enough to override the right to privacy.”).           The New Jersey

Supreme Court similarly observed in State in Interest of A.B.

      22
            Article I, section 6 of the Hawaiʻi Constitution provides, “The
right of the people to privacy is recognized and shall not be infringed
without the showing of a compelling state interest.” Haw. Const. art. I, §
6.



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that despite the fact that “[p]articipation in the criminal

justice process will undoubtedly be a source of inconvenience

and anxiety, and will result in some incursion into privacy

rights of witnesses[,]” these “adverse consequences are the

inevitable price that must be paid to ensure the accused

receives a fair trial.”        99 A.3d 782, 793 (N.J. 2014).         Given

these competing interests, a defendant’s constitutional right to

access and investigate a crime scene is not unlimited and does

not provide unfettered access to private property.              Rather, the

anxiety and inconvenience that governmental intrusion may cause

can be largely reduced through the court’s application of time,

place, and manner restrictions without jeopardizing the

defendant’s right to effective assistance of counsel and right

to a fair trial.

             Other jurisdictions that have recognized a defendant’s

right to investigate the crime scene have employed such

restrictions to minimize governmental intrusion on a property

owner’s privacy rights.        The Court of Appeals of Minnesota took

this approach in State v. Lee, 461 N.W.2d 245 (Minn. Ct. App.

1990), holding that the trial court abused its discretion in

denying the defendant’s motion to compel access to a private

residence, which was the scene of an alleged murder.              Id. at

247.    The prosecution opposed the defense’s motion in Lee

because it was no longer in “possession or control” of the crime

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scene and had already provided the defense with photographs,

diagrams, and videotapes of the residence.           Id. at 246.    The

appellate court held that “[a] brief inspection of the residence

by defense investigators, regulated as to time, place and

manner, could be less intrusive upon the victims’ family than a

defense effort to obtain equivalent information by compulsory

process.”    Id. at 247 (citation omitted). 23       In Commonwealth v.

Matis, 915 N.E.2d 212, 215 (Mass. 2006), a case involving the

sexual assault of a minor, the court remanded the case to the

trial court and specified that the trial court needed to

consider the “privacy interests and logistical concerns of the

homeowner” and could craft the terms of the order allowing

access to the crime scene through time, place, and manner

restrictions.     The appellate court’s instructions on remand

provided examples of restrictions that the trial court could

apply to protect privacy rights.          Id.   The Matis court

instructed as follows:

            The order [allowing access to the crime scene] should be
            specific as to scope, and may include, among other things,
            conditions as to who may have access on behalf of the
            defense, when that access may occur and for how long, and
            whether additional persons should be permitted or required
            to attend to ensure the peaceable nature of the inspection,
            the integrity of the evidence, and the privacy of matters
            beyond the scope of the order.

      23
            Restriction to a single visit will generally be sufficient to
address the defense’s request to investigate the premises. See State in
Interest of A.B., 99 A.3d at 794 (requiring the “giving [of] articulable
reasons why the initial inspection was not adequate for investigative
purposes”).



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Id. 24

              In this case, the circuit court could have placed

restrictions on defense counsel’s access to investigate and

photograph the basement area in and around the utility closets. 25

Such appropriate time, place, and manner restrictions would have

minimized any infringement on the condominium owners’ privacy

rights without impairing Tetu’s constitutional rights to

effective assistance of counsel and a fair trial. 26

                  4. Relevancy and Materiality Requirement

              The concurrence acknowledges that a defendant in

Hawaiʻi has a constitutional due process right to access the

crime scene, but it would make the right conditional.             In order

to exercise the right under the concurrence’s proposed test, the

defendant would be required to “make a threshold showing” that

         24
            The Matis court held that the defendant had a constitutional
right to investigate the crime scene under the Sixth Amendment to the United
States Constitution but required a showing that the crime scene was
“evidentiary and relevant” to authorize the use of the court’s subpoena
power. Matis, 915 N.E.2d at 213-14.
         25
            Before moving to compel access to the crime scene, defense
counsel may seek access without the aid of the court, i.e., requesting
permission through the prosecution or directly from the property owner.
However, if access is denied, HRS § 603-21.9 (1993) provides the circuit
courts with the authority “[t]o make and award . . . orders . . . for the
promotion of justice in matters pending before them,” and thus a court may
order a complainant or third party to allow access to the crime scene with
appropriate restrictions.
         26
            At the hearing on Tetu’s motion to compel access to the
condominium, no one from Maunaihi Terrace was present to represent the
condominium’s privacy interests. It is assumed that in establishing time,
place, and manner restrictions, the property owner or persons with privacy
interests will be notified of the request for access. The court may then
consider such privacy interests in establishing appropriate restrictions.



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“inspection of the [crime] scene will lead to relevant evidence

on a material issue.”      Concurrence at 2, 8.

              In jurisdictions that have required a defendant to

satisfy a relevancy and materiality test (or some alternative

standard) to justify access to the crime scene, a primary

concern has been the right to privacy of complainants or third

parties. 27    This concern can be readily addressed by application

of time, place, and manner restrictions imposed by a court to

protect the privacy interests of property owners or occupants

without the imposition of an evidentiary threshold test. 28            There


      27
            See, e.g., Bullen v. Superior Court of Sacramento Cty., 251 Cal.
Rptr. 32, 35 (Cal. Ct. App. 1988) (“Resolution of this issue implicates
competing fundamental interests involving petitioner’s right to privacy in
her own home and defendant’s right to a fair trial and a defense informed by
all relevant and reasonably accessible information.”); State in Interest of
A.B., 99 A.3d 782, 789 (N.J. 2014) (“The issue presents a balancing of the
right of the accused to a fair trial and the right of an alleged victim and
her family to privacy in their home.”); People v. Nicholas, 599 N.Y.S.2d 779,
782 (N.Y. App. Div. 1993) (“Unless defense counsel can make a prima facie
showing how his proposed inspection and observation would be relevant and
material to his defense, the defendant’s right to prepare his defense cannot
outweigh the victim’s constitutional right to privacy.”); Henshaw v.
Commonwealth, 451 S.E.2d 415, 420 (Va. Ct. App. 1994) (“If an accused
establishes that inspecting, photographing, or measuring the crime scene is
relevant and material, he is entitled to access, subject to such reasonable
limitations and restrictions as the trial judge may impose, unless due to
special circumstances the private citizen’s constitutional right to privacy
outweighs the accused’s right to view or inspect the premises.”); State v.
Muscari, 807 A.2d 407, 418 (Vt. 2002) (holding that an occupant’s right to
privacy must be balanced with a defendant’s need to access the crime scene
“by requiring a defendant to make some showing that the requested intrusion
is relevant and material to the defense”).
      28
            The need for a defense counsel to understand the crime scene’s
layout and to explore all possible defenses does not vary based on whether
the crime occurred on public or private property. Consequently, under a
relevancy and materiality test, the need to persuade a court to allow crime
scene access unfairly burdens defendants accused of a crime on private rather
than on public property. All defendants under the Hawaiʻi and United States
Constitutions are presumed to be innocent, and the ability to prepare a
                                                              (continued. . .)

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may be rare cases where it is demonstrated that such

restrictions are inadequate to protect an individual’s privacy

rights and that an intrusion upon these privacy rights outweighs

the defendant’s rights to due process and effective assistance

of counsel.    However, a court’s broad authority to circumscribe

the scope of access--including, for example, prescribing the

physical area of the inspection, setting the time frame and

other conditions of the visit, and specifying the persons to be

present--will provide the requisite protection of privacy rights

in virtually all cases.

            Additionally, requiring a defendant to demonstrate

that access to the crime scene “will lead” to relevant evidence

on a material issue undermines the defendant’s constitutional

rights to effective assistance of counsel and to a fair trial.

The time necessary for defense counsel to obtain discovery in

order to establish that accessing the crime scene would lead to

relevant evidence on a material issue conflicts with the

previously cited professional standards that defense counsel

should access the scene without delay to inspect it, take



(. . .continued)
defense should not depend on the location of the offense charged. See In re
Winship, 397 U.S. 358, 363 (1970) (The reasonable-doubt standard “provides
concrete substance for the presumption of innocence--that bedrock ‘axiomatic
and elementary’ principle whose ‘enforcement lies at the foundation of the
administration of our criminal law’” (quoting Coffin v. United States, 156
U.S. 432, 453 (1895))).



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measurements, and record relevant conditions. 29          The defendant’s

inability to make a threshold showing of relevancy and

materiality to justify inspecting the crime scene at an early

point in the proceedings 30 may be the result of a delay in the

State’s required disclosure of discovery under HRPP Rule 16

because of uncompleted investigative reports, pending test

results, or even administrative backlog.

            Further, the reasons put forward by the defense to

access the crime scene are likely to be challenged by the State

as to whether they demonstrate that access “will lead to

relevant evidence on a material issue.”          Concurrence at 2

(emphasis added).     That is, counsel for the State, who will

generally have ready access to the crime scene, may contend that

opposing counsel should not be granted access because of
      29
            Requiring the defense to show that investigation of the crime
scene will lead to relevant and material evidence may, in certain instances,
infringe on the attorney-client privilege. The attorney-client privilege
protects all “‘confidential communication made for the purpose of
facilitating the rendition of professional legal services’ between
appropriate parties.” Save Sunset Beach Coalition v. City & Cty. of
Honolulu, 102 Hawaiʻi 465, 484-85, 78 P.3d 1, 20-21 (2003) (quoting HRE Rule
503(b)). Satisfying a relevancy and materiality test may inferentially
reveal the contents of a privileged communication from the defendant.
      30
            A relevancy and materiality requirement may also create an
anomalous result based on the timing of a defense counsel’s request to compel
discovery. If defense counsel moves to compel access when the police or the
State is in “possession or control” of a crime scene, a defendant would
appear to have an automatic right under HRPP Rule 16 to investigate the crime
scene. See State v. Townsend, 7 Haw. App. 560, 563, 784 P.2d 881, 883
(1989). Requiring a defendant to satisfy a higher burden to exercise his or
her constitutional right to access the crime scene solely because of the
timing of the request may “impermissibly relegate[] the defendant’s
constitutional rights to that of rule status.” State v. Pond, 118 Hawaiʻi
452, 481, 193 P.3d 368, 397 (2008).



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relevance, passage of time, or cumulativeness of evidence--which

were precisely the grounds of the State’s objections in this

case.      If a trial court is required to determine whether access

to a crime scene would lead to relevant evidence not previously

disclosed on a material issue, the court would need to be

cognizant of the contents of all discovery previously provided

by the State, any other materials obtained by the defense’s

investigation, and the possible defenses to be asserted at

trial. 31

              Although the inherent difficulty of such a judicial

calculation is plainly evident, the concurrence suggests that

its proposed threshold burden is necessary in part to counter

requests for access that have no “legitimate purpose.”

Concurrence at 5.      To the extent that the concurrence portends

that counsel will submit frivolous or illegitimate requests for

access to the scene with the intent to intimidate, harass, or

abuse private citizens, such requests for access would require

defense counsel to knowingly violate multiple provisions of the

Hawaiʻi Rules of Professional Conduct (HRPC).           See HRPC Rule


      31
            Requiring counsel to definitively show that access “will” lead to
relevant evidence on a material issue would also make no accommodation for
counsel to inspect the crime scene for general investigatory purposes or
because counsel believes the inspection itself may provide a basis for a
defense. In this likely scenario, the very information needed to make a
showing that access to the crime scene would yield relevant and material
evidence would remain undiscovered because it would only be accessible by
inspecting the crime scene in the first place.



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3.4(f) (2014) (prohibiting a lawyer from “mak[ing] a frivolous

discovery request”); HRPC Rule 3.1 (2014) (prohibiting a lawyer

from “bring[ing] or defend[ing] a proceeding, or assert[ing] or

controvert[ing] an issue therein, unless there is a basis for

doing so that is not frivolous”).         Further, the trial court has

“inherent equity, supervisory, and administrative powers” to

“curb abuses and promote a fair process.”            Richardson v. Sport

Shinko (Waikiki Corp.), 76 Hawaiʻi 494, 507, 880 P.2d 169, 182

(1994); Kaina v. Gellman, 119 Hawaiʻi 324, 330, 197 P.3d 776, 782

(App. 2008) (noting that HRS §§ 603-21.9(1) and (6) 32 are the

“legislative restatement of the inherent powers doctrine”). 33


      32
            HRS § 603-21.9 reads in relevant part:

            The several circuit courts shall have power:

                  (1) To make and issue all orders and writs necessary or
                  appropriate in aid of their original or appellate
                  jurisdiction;

                  . . . .

                  (6) To make and award such judgments, decrees, orders, and
                  mandates, issue such executions and other processes, and do
                  such other acts and take such other steps as may be
                  necessary to carry into full effect the powers which are or
                  shall be given to them by law or for the promotion of
                  justice in matters pending before them.

HRS § 603-21.9(1), (6) (1993).

      33
            See also State v. Mattson, 122 Hawaiʻi 312, 342 n.6, 226 P.3d 482,
512 n.6 (2010) (noting that this court could invoke its inherent supervisory
authority to prohibit a broad category of impermissible prosecutorial
comments even when not all subsets of such comments were raised on appeal);
State v. Jess, 117 Hawaiʻi 381, 411, 184 P.3d 133, 163 (2008) (circuit court’s
inherent authority includes the power to reform sentencing statute to comport
with Hawaiʻi Constitution and re-empanel jury to make factual findings for
sentencing); State v. Pattioay, 78 Hawaiʻi 445, 468 n.28, 896 P.2d 911, 924
                                                              (continued. . .)

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Therefore, trial courts are indeed empowered with the tools to

curb the concurrence’s hypothetical requests of counsel for

access that have no legitimate purpose, even assuming the

unlikely fact that such requests would be submitted in direct

violation of the Hawaiʻi Rules of Professional Conduct. 34

Concurrence at 5.

            The concurrence also maintains that, under the

proposed relevancy and materiality test, “in the vast majority

of cases, a defendant should easily be able to” exercise his or

her constitutional right to access the crime scene.            Concurrence

at 5.   However, as described above, there are numerous reasons

why this prediction is dubious.        In fact, it is likely that

defense counsel would frequently be denied the opportunity to

investigate the scene of the crime and thus be prevented from

fulfilling professional standards.         This case is a prime

example.    Defense counsel provided the following reasons for

seeking access to the condominium premises: (1) to make best use

of cross-examination and impeachment of witnesses at trial; (2)


(. . .continued)
n.28 (1995) (circuit court’s inherent authority includes power to exclude
evidence obtained in violation of federal statute relating to military and
civilian law enforcement because such action is “reasonably necessary to
vindicate the court’s authority”).
      34
            The regulations imposed by the HRPC, the court’s inherent
authority to deny illegitimate requests for access, and the limitations
imposed by use of time, place, and manner restrictions evince that, contrary
to the concurrence’s characterization, a defendant’s access to the crime
scene is not “absolute.” Concurrence at 8.


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to understand the account of his client; (3) to take photographs

of areas not shown in the discovery that “may be significant to

the defense”; and (4) to coherently present the case to a jury.

The circuit court determined that Tetu’s counsel had presented

“no real plausible justification” for access to the crime scene

and that the request for access was speculative “with a hope to

turn up something.”      Similarly, the ICA concluded that Tetu’s

reasons did not satisfy its requirement that counsel “make a

prima facie showing of how the proposed inspection would be

relevant and material to [his] defense.”          These court rulings

indicate that Tetu would not have satisfied the concurrence’s

threshold test that “inspection of the crime scene would lead to

relevant evidence on a material issue,” 35 despite the fact that

the reasons provided by defense counsel coincide with numerous

performance standards established by the American Bar

Association, state jurisdictions, and other legal professional

standards organizations. 36

      35
            In concluding otherwise, the concurrence states that inspection
of the crime scene would have revealed that the fire-exit door, which was
“exit only,” had no signs of forced entry and would have corroborated Tetu’s
account that he could have only entered the premises with his former wife’s
aid. Concurrence at 6-7. However, this argument was not made before the
circuit court as the ICA noted in its memorandum opinion. The other reasons
relied upon by the concurrence are generally applicable in all criminal
cases.
      36
            See, e.g., Va. Indigent Def. Comm’n, Commonwealth of Virginia
Standards of Practice for Indigent Defense § 7.1 (b)(5) (2015) (trial
preparation should include consideration of “[o]btaining photographs and
preparing charts, maps, diagrams, or other visual aids of all scenes,
persons, objects, or information which may assist the fact finder in
                                                              (continued. . .)

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            While the reasons that Tetu’s counsel provided are

inherent to providing effective assistance of counsel and apply

in nearly all criminal cases, they did not demonstrate that

access to the scene would satisfy the concurrence’s test that it

“will lead to relevant evidence on a material issue.”             This case

thus manifests the fundamental point that the duties required of

defense counsel by virtue of the obligation to render effective

assistance are not limited to seeking relevant evidence on a

material issue, and, in fact, encompass a range of litigation

efforts that are fundamental to an effective defense--yet do not

solely involve pursuing such evidence. 37        Rather, as established

by the professional standards for defense counsel, a meaningful



(. . .continued)
understanding the defense . . . ”); id. at § 8.2(g) (“Counsel should attempt
to view and photograph the scene of the alleged offense.”); Nat’l Legal Aid &
Def. Ass’n, NLADA’s Performance Guidelines for Criminal Defense
Representations § 4.1(b)(6), at 10 (1995) (“Counsel should consider seeking
access to the scene under circumstances as similar as possible to those
existing at the time of the alleged incident.”); Am. Bar Ass’n, ABA Standards
for Criminal Justice: Prosecution Function and Defense Function § 4-4.1(b)
Commentary, at 183 (3d ed. 1993) (“Without adequate investigation[,] the
lawyer is not in a position to make the best use of such mechanisms as cross-
examination or impeachment of adverse witnesses at trial,” and where there
are eyewitnesses, “[t]he lawyer needs to know conditions at the scene that
may have affected their opportunity as well as their capacity for
observation.”).
      37
            For example, the record in this case demonstrates that defense
counsel’s concerns regarding cross-examination of witnesses at trial was
well-founded. A review of the trial transcript indicates that defense
counsel, unlike the prosecution, struggled to cross-examine the condominium
manager regarding the layout of the basement. As any seasoned litigator
knows, there is no substitute to viewing the crime scene in person. Had
defense counsel been permitted to inspect and familiarize himself with the
condominium basement, counsel likely would have been able to make “be[tter]
use” of cross-examination. Am. Bar Ass’n, supra note 36, at 183.



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opportunity to present a complete defense secures allowance for

counsel to timely inspect and investigate the crime scene in

order to provide effective assistance.         See State v. Kaulia, 128

Hawaiʻi 479, 487, 291 P.3d 377, 385 (2013) (“Central to the

protections of due process is the right to be accorded a

meaningful opportunity to present a complete defense.” (quoting

State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990)).

Requiring counsel to satisfy a court that granting access to the

crime scene will lead to relevant evidence on a material issue

forces a defendant to justify the exercise of the rights given

by our constitution to present an effective defense and to

receive a fair trial.

                             5. Harmless Error

          The circuit court erred in not allowing Tetu’s counsel

to inspect and photograph the crime scene, a private condominium

building, subject to appropriate restrictions that would have

properly considered the condominium owners’ privacy rights.

However, a violation of a constitutional right is subject to the

harmless-beyond-a-reasonable-doubt standard.          See State v.

Peseti, 101 Hawaiʻi 172, 178, 65 P.3d 119, 125 (2003) (noting

that a violation of the constitutional right to confront

witnesses is subject to the harmless beyond a reasonable doubt

standard).   This standard requires a court to “examine the

record and determine whether there is a reasonable possibility

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that the error complained of might have contributed to the

conviction.”   Id. (quoting State v. Balisbisana, 83 Hawaiʻi 109,

113-14, 924 P.2d 1215, 1219-20 (1996)); see also State v.

Aplaca, 96 Hawaiʻi 17, 25, 25 P.3d 792, 800 (2001) (“This court

applies the harmless error doctrine to errors that . . .

implicate an accused’s constitutional rights.”).           In assessing

whether an error is harmless, “[a] crucial if not determinative

consideration . . . is the strength of the prosecution’s case on

the defendant’s guilt.”     State v. Fukusaku, 85 Hawaiʻi 462, 482-

83, 946 P.2d 32, 52-53 (1997) (quoting State v. Pokini, 55 Haw.

640, 645, 526 P.2d 94, 101 (1974)).

          Here, the evidence presented against Tetu at trial was

compelling.    The jury observed surveillance footage that showed

Tetu breaking into two storage closets with a tool and using his

jacket to wipe the door knobs.       Tetu testified that he used a

piece of wire to open the locked closets.         The jury also

observed in the footage Tetu leaving the closets carrying a

garbage bag of items with a flashlight in his mouth.           The

condominium manager testified that he had checked the utility

closets a few days before the incident and that on the day after

the incident, an electric grinder and several emergency lights

and batteries were missing.      The manager further testified that

the closets were always locked and only individuals with keys

had access to the closets.      Finally, Tetu’s testimony that the

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bag contained his former wife’s clothing, instead of stolen

property, was wholly contradicted by the testimony of his former

wife.

          In light of the evidence adduced at trial, the trial

court’s error in denying access to the crime scene in this case

was harmless beyond a reasonable doubt.

                     B. Sufficiency of the Evidence

          This court will “not overturn a conviction by a jury

if ‘viewing the evidence in the light most favorable to the

[prosecution], there is substantial evidence to support the

conclusion of the trier of fact.’”        State v. Matavale, 115

Hawaiʻi 149, 158, 166 P.3d 322, 331 (2007) (alteration in

original) (quoting State v. Moniz, 92 Hawaiʻi 472, 476, 992 P.2d

741, 744 (App. 1999)).     Substantial evidence is “credible

evidence which is of sufficient quality and probative value to

enable [a person] of reasonable caution to support a

conclusion.”   Id. at 158, 166 P.3d at 331 (alteration in

original) (quoting State v. Batson, 73 Haw. 236, 248-49, 831

P.2d 924, 931 (1992)).     Further, when considering the legal

sufficiency of evidence to support a conviction, such “evidence

adduced in the trial court must be considered in the strongest

light for the prosecution.”      Id. at 157, 166 P.3d at 330.         It is

not the role of the appellate court to weigh credibility or



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resolve conflicting evidence.       State v. Wallace, 80 Hawaiʻi 382,

418, 910 P.2d 695, 731 (1996).

          A person commits burglary in the second degree if the

person “intentionally enters or remains unlawfully in a building

with intent to commit therein a crime against a person or

against property rights.”      HRS § 708-811(1).      Because Tetu

admitted that he was the person depicted in the surveillance

footage, the question before the jury concerned Tetu’s intent

when entering or while remaining at Maunaihi Terrace.            Although

Tetu argues that he lacked the intent to commit burglary, in

viewing the evidence in the most favorable light to the State,

the evidence demonstrating that the circuit court’s error was

harmless beyond a reasonable doubt also establishes substantial

evidence to support Tetu’s conviction.

                         IV.      CONCLUSION

          A defendant’s right to due process under article I,

section 5 and the right to effective assistance of counsel under

article I, section 14 of the Hawaiʻi Constitution independently

provide a defendant with the right to access a crime scene.

When the crime scene is located on private property, the court

should impose time, place, and manner restrictions to protect

the privacy interests of those who may be affected by the

intrusion.   The court’s authority to employ such restrictions to

address the specific circumstances in each case reflects a

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careful balance between personal privacy, due process, and the

effective assistance of counsel and assures protection of these

constitutional rights.

          In this case, although Tetu was wrongly denied access

to the crime scene, the error was harmless beyond a reasonable

doubt.   Therefore, the judgment on appeal of the ICA is affirmed

for the reasons stated herein.

Stuart N. Fujioka                     /s/ Sabrina S. McKenna
for petitioner
                                      /s/ Richard W. Pollack
Donn Fudo                             /s/ Michael D. Wilson
for respondent




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