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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000667
                                                              14-FEB-2014
                                                              08:45 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


          STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

           JOHN WALTON, Petitioner/Defendant-Appellant.


                             SCWC-11-0000667

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-11-0000667; CR. NO. 09-1-0498)

                            FEBRUARY 14, 2014

  RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.

                         OPINIONS OF THE COURT

           This case arises from an incident in which a taxi

driver (complaining witness or “CW”) was stabbed and robbed after

transporting John Walton and Courage Lee Elkshoulder to Manoa

Valley.   According to the State, after CW drove Walton and

Elkshoulder to Manoa, Elkshoulder grabbed CW from behind and

stabbed him in the neck; Walton assisted in the attack by
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reaching over from the rear passenger-side seat and holding CW

down.

            Police recovered a backpack from CW’s taxi, searched

the backpack pursuant to a warrant, and recovered a General

Nutrition Center (GNC) membership card.          Police then contacted

GNC and learned that the card was registered in Walton’s name.

Police also obtained a surveillance video depicting two men

crossing the street near where CW had picked up Walton and

Elkshoulder.    Images from this video were posted on online news

sites and shown on the evening news.         Police received tips

identifying the men in the images as Walton and Elkshoulder and

several coworkers identified Walton and Elkshoulder as the men in

the images.

            The State indicted both Walton and Elkshoulder for

Attempted Murder in the Second Degree and Robbery in the First

Degree.    The Circuit Court of the First Circuit1 consolidated

Walton’s and Elkshoulder’s trials, and subsequently denied both

Walton’s and Elkshoulder’s motions for severance.

            During trial, the State maintained that Elkshoulder

stabbed CW while Walton held him down.          Elkshoulder and Walton,

however, advanced irreconcilable defenses.          Specifically,

Elkshoulder testified that he was not in the taxi when CW was

stabbed.    Elkshoulder also introduced a recorded telephone


      1
            The Honorable Michael A. Town presided until October 1, 2010, when
the case was re-assigned to the Honorable Colette Y. Garibaldi.

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conversation that he had made, in which Walton admitted to

stabbing CW.   The State argued the recording was not worthy of

belief.   On the other hand, Walton elicited testimony from CW

that it was Elkshoulder who stabbed him.         In other words, Walton

and Elkshoulder each argued that the other had stabbed CW.             The

jury found Walton guilty of both Attempted Murder in the Second

Degree and Robbery in the First Degree, but found Elkshoulder

guilty of only Assault in the First Degree and Robbery in First

Degree.

           The circuit court sentenced Walton to a life term of

incarceration with the possibility of parole for Attempted Murder

in the Second Degree and dismissed the robbery charge without

prejudice because the jury found that the two offenses had

merged, and Walton brought the instant appeal.           The Intermediate

Court of Appeals affirmed the circuit court’s judgment of

conviction and sentence.

           Walton argues that the circuit court erred in: (1)

denying Walton’s motion for severance; (2) denying Walton’s

motion to suppress evidence (i.e., the information obtained from

GNC) and identification testimony (i.e., the identification of

Walton and Elkshoulder by their co-workers); (3) admitting the

recorded telephone conversation; (4) limiting Walton’s cross-

examination of Elkshoulder concerning the making of the

recording; (5) instructing the jury; and (6) denying Walton’s

motion for judgment of acquittal.

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           We hold that, on the facts of this case, the circuit

court erred in denying Walton’s motion for severance.            Walton was

forced, in effect, to defend against two prosecutors with two

different theories of his guilt.        The State argued that Walton

assisted Elkshoulder by holding CW down, while Elkshoulder argued

that it was Walton who stabbed CW.        Elkshoulder relied on the

recorded telephone conversation in support of his theory, and

that evidence appears to have been persuasive.           Despite the

State’s theory of the case, and CW’s testimony in support of that

theory, the jury — after hearing Walton’s admission on the

recording — convicted Walton of attempted murder, but convicted

Elkshoulder only of assault in the first degree.           In these

circumstances, Walton was prejudiced and denied a fair trial.

The circuit court therefore should have granted Walton’s motion

for severance.    Accordingly, we vacate the ICA’s and the circuit

court’s judgments, and remand Walton’s case for a new trial.

           Because our resolution of this issue is dispositive, we

do not consider several of Walton’s other arguments.            We do,

however, address Walton’s arguments that the circuit court erred

in denying his motion to suppress evidence and identification

testimony and in instructing the jury, because those issues may

arise again on remand in Walton’s separate trial.           We also

conclude that because sufficient evidence supported the jury’s

verdict, the circuit court did not err in denying Walton’s motion

for acquittal.

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                             I.   Background

           The following factual background is taken from the

record on appeal.

           On April 8, 2009, the State indicted Walton for

Attempted Murder in the Second Degree, in violation of HRS

§§ 705-500,2 707-701.5,3 and 706-6564; and Robbery in the First


     2
           HRS § 705-500 provides that:

           (1) A person is guilty of an attempt to commit a crime
           if the person:

           (a) Intentionally engages in conduct which would
           constitute the crime if the attendant circumstances
           were as the person believes them to be; or

           (b) Intentionally engages in conduct which, under the
           circumstances as the person believes them to be,
           constitutes a substantial step in a course of conduct
           intended to culminate in the person’s commission of
           the crime.

           (2) When causing a particular result is an element of
           the crime, a person is guilty of an attempt to commit
           the crime if, acting with the state of mind required
           to establish liability with respect to the attendant
           circumstances specified in the definition of the
           crime, the person intentionally engages in conduct
           which is a substantial step in a course of conduct
           intended or known to cause such a result.

           (3) Conduct shall not be considered a substantial step
           under this section unless it is strongly corroborative
           of the defendant’s criminal intent.
     3
           HRS § 707-701.5 provides:

           (1) Except as provided in section 707-701, a person
           commits the offense of murder in the second degree if
           the person intentionally or knowingly causes the death
           of another person.

           (2) Murder in the second degree is a felony for which
           the defendant shall be sentenced to imprisonment as
           provided in section 706-656.
     4
           HRS § 706-656 provides, in relevant part:

           (2) Except as provided in section 706-657, pertaining
                                                               (continued...)

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Degree, in violation of HRS § 708-840(1)(b)(i).5            The State

indicted Elkshoulder for the same offenses on November 26, 2008.

A.     Consolidation of trials

             The State filed a motion to consolidate the trials of

Walton and Elkshoulder, stating that the charges involved the

same conduct or series of acts and were connected by a single

scheme or plan.      The State explained that the only reason Walton

and Elkshoulder were charged separately was that police had been

unable to locate both defendants at or near the same time.               This



       4
        (...continued)
             to enhanced sentence for second degree murder, persons
             convicted of second degree murder and attempted second
             degree murder shall be sentenced to life imprisonment
             with possibility of parole. The minimum length of
             imprisonment shall be determined by the Hawaii
             paroling authority; provided that persons who are
             repeat offenders under section 706-606.5 shall serve
             at least the applicable mandatory minimum term of
             imprisonment.

             If the court imposes a sentence of life imprisonment
             without possibility of parole pursuant to section
             706-657, as part of that sentence, the court shall
             order the director of public safety and the Hawaii
             paroling authority to prepare an application for the
             governor to commute the sentence to life imprisonment
             with parole at the end of twenty years of
             imprisonment; provided that persons who are repeat
             offenders under section 706-606.5 shall serve at least
             the applicable mandatory minimum term of imprisonment.
       5
             HRS § 708-840(1)(b)(i) provides, in relevant part:

             (1) A person commits the offense of robbery in the
             first degree if, in the course of committing theft or
             non-consensual taking of a motor vehicle:
             . . .

             (b) The person is armed with a dangerous instrument
             and:

             (i) The person uses force against the person of anyone
             present with intent to overcome that person’s physical
             resistance or physical power of resistance[.]

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was a result of the fact that Elkshoulder turned himself in to

authorities approximately one week after the incident, while

Walton fled the state and was not apprehended until mid-March

2010.

            The circuit court held a hearing on the consolidation

motion, to which both Walton and Elkshoulder objected.             During

the hearing, Walton’s counsel stated that he had just been

informed of a recorded telephone conversation between Walton and

Elkshoulder in which Walton allegedly made incriminating

statements.6    Walton argued that the recording presented a

problem under Bruton v. United States, 391 U.S. 123 (1968).7                The

circuit court granted the State’s motion to consolidate, subject

to review in pretrial motions.

            Before the start of trial, Walton filed a motion for

severance, arguing that his rights to confrontation, effective

assistance of counsel, and due process of law would be violated

by a joint trial.     Walton argued that Elkshoulder, using the

recorded telephone conversation, would contend that it was Walton

who had stabbed CW.      Walton argued that because the recording

appeared to directly implicate him, his defense conflicted with

that of Elkshoulder.      The State filed an opposition to the



      6
            As discussed infra, this recording was made by Elkshoulder.
      7
            In Bruton, the United States Supreme Court held that a defendant
is deprived of the Sixth Amendment right of confrontation when an
incriminating statement of a non-testifying co-defendant is introduced at
their joint trial. 391 U.S. at 126.

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motion, arguing that the recorded phone conversation included

Walton’s own statements and that Walton’s voice had been verified

by two of Walton’s co-workers, Jeremy Koki and Matthew Rodrigues.

The circuit court denied Walton’s motion to sever.

           On the eve of trial, Elkshoulder filed a motion to

sever his and Walton’s trials, in which Walton joined, arguing

that Elkshoulder would be prejudiced if the State argued that the

defendants had engaged in a conspiracy or mutual agreement in

making the recording.     The circuit court denied the motion.

           After trial began, Walton again moved for severance,

arguing that the strategies adopted by himself and Elkshoulder

were inconsistent and contradictory, and that a joint trial would

deprive him of a fair trial.       The circuit court denied the

motion, stating that no additional information had been presented

that would warrant reversal of the prior ruling denying

severance.

           After trial, the circuit court issued its Findings of

Fact and Conclusions of Law and Order denying severance of

trials, finding that Walton and Elkshoulder failed to present any

new information that had not already been presented to the

circuit court when it consolidated the trials.           The order also

stated that joinder would not be unfair to either defendant.

Specifically, the order stated that the recording did not present

a Bruton issue because “[u]nlike Bruton, this phone conversation



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is not a statement made by a non-testifying co-defendant which

implicates a defendant in a joint trial.”           (Emphasis added).

             The order further explained that:
             [n]either defendant is being prevented from producing
             evidence which would have otherwise been inadmissible
             in their separate trials. Had Defendant Walton gone
             to trial separately, the State could still introduce
             the taped phone conversation against Walton as his own
             statement. . . . Although both defendants may attempt
             to point the finger at the other, the Court does not
             find this irreconcilable. There is other evidence
             that this court may consider and in its discretion
             finds that these matters should be tried together.

B.     Suppression of Identification and Evidence

             Walton also filed a motion to suppress evidence and

identification testimony.        Specifically, Walton sought to

suppress the identification testimony of Jeremy Koki and Matthew

Rodrigues, who identified Walton in still photos taken from a

surveillance video recorded on the day of the incident, and in a

photographic lineup array.        Walton argued that Rodrigues’s and

Koki’s identifications were the result of impermissibly

suggestive procedures and not reliable because Rodrigues and Koki

had previously viewed surveillance photos of persons identified

by the news media as alleged suspects in the incident and

discussed with others their belief that Walton was depicted in

those photos.

             Walton also sought to suppress information police

obtained using a registration number on the GNC card recovered

from the backpack found in CW’s taxi.           Walton acknowledged that

police obtained a warrant to search the backpack, but argued that


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police were required to secure an additional warrant to obtain

from GNC any information associated with the card’s registration

number.

           The State opposed Walton’s motion, stating that the

identification procedures used were not unfair or inherently

suggestive, because both Koki and Rodrigues had worked with

Walton and Elkshoulder for nearly a year, were very familiar with

Walton’s and Elkshoulder’s appearances and personal information,

and had already recognized Walton and Elkshoulder in news reports

showing the surveillance photos and video before being contacted

by police to confirm the identities of Walton and Elkshoulder in

photo lineups.    The State argued that Koki’s and Rodrigues’s

familiarity with Walton and Elkshoulder supported an unequivocal

recognition of them both in the surveillance images and

photographic lineups.     The State noted that Walton and

Elkshoulder were captured on surveillance video while at the

corner of Pensacola and Young streets — the approximate location

where CW told police he picked up Walton and Elkshoulder — and

that police provided the images to television news stations,

which broadcast the images.       According to the State, police

subsequently received an anonymous call identifying the men in

the images as Walton and Elkshoulder, and stating that they

worked for the Hawai#i Medical Service Association (HMSA).

Police then contacted HMSA to speak with anyone who might be

familiar with Walton or Elkshoulder.

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           Regarding the information obtained using the GNC card,

the State argued that the police’s contact with a GNC store to

ascertain ownership of the card based on the card’s registration

number was allowable under the warrant police obtained to search

the backpack found in CW’s taxi, which contained the card.

           During a hearing on Walton’s motion, Rodrigues

testified that on November 20, 2008, he went to a news website to

view photos of two men accused of a crime, after his supervisor

called him and told him to check out the news.           Rodrigues

testified that he believed his supervisor told him that

Elkshoulder and Walton might be depicted in the video.

           Rodrigues explained that he was a quality assurance

coordinator for HMSA, and that he had supervised Walton for about

five months and Elkshoulder for about seven months.            Rodrigues

testified that he looked at the photos on the website about 20

times and consulted with his family, who had met Elkshoulder.               At

first, Rodrigues thought that the online images did not depict

Walton and Elkshoulder.      However, by the time Rodrigues saw the

images on the evening news, it was clear to him that Walton and

Elkshoulder were the men depicted in the images.           Rodrigues

testified that he was able to identify Walton based on his

stature, his overall appearance, the style of his hair, his

glasses, and his backpack.

           Rodrigues further testified that a day or two later,

police contacted him and showed him the same surveillance photo.

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About a month after that, Rodrigues was again contacted by police

to view a photographic lineup, from which he identified Walton.

           Koki8 testified that he worked for HMSA and that in

November 2008, he received a phone call telling him to look at a

surveillance photo in an online news report.          The person told

Koki, “I think it’s one of your guys” but did not identify the

person depicted in the photo by name.         Koki stated that he looked

at the   online photo about ten times over ten minutes, after

which he called his manager and stated that he believed the men

depicted in the photo were Walton and Elkshoulder.           Koki

testified that he concluded on his own that it was Elkshoulder

and Walton in the photo.

           Koki further testified that he viewed the photo

repeatedly because he did not want to believe that it was Walton

and Elkshoulder in the photo, but that after he was confident

that it was them, he decided to report it to his manager.

Koki identified Elkshoulder in the photo by his clothing and

hair, and identified Walton by his hair and backpack.            Koki

stated that almost a month later, he identified Walton and

Elkshoulder from a lineup of photos.

           HPD Detective Michael Ogawa testified that he prepared

a photographic lineup using photos from Hawai#i driver’s licenses

and state IDs, and showed them to Rodrigues, Koki, and Richard



     8
           Koki did not testify at trial.

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Laumauna, another of Walton’s co-workers.9          Detective Ogawa also

showed Koki and Rodrigues photographs taken from the surveillance

video.

            Detective Ogawa explained that CW identified the two

men in the surveillance photo as the men who were involved in the

incident.    Although CW was able to identify Elkshoulder from a

photo lineup, he was unable to identify Walton.

            Detective Ogawa further testified that another

detective obtained a search warrant to search the contents of the

backpack found in CW’s taxi.        Detective Ogawa explained that the

GNC card was found in the backpack, and described the card as a

rewards card attached to a key ring.         Detective Ogawa further

explained that the GNC card did not have a name on it, but that

it had an identification number, which he provided to GNC to

determine who might be associated with the number.

            The circuit court denied Walton’s suppression motion.

The circuit court found that Koki and Rodrigues identified Walton

and Elkshoulder independently as a result of their familiarity

with Walton and Elkshoulder, and that the photo lineup had not

been impermissibly suggestive.        The order noted that Koki and

Rodrigues saw the surveillance images of Walton and Elkshoulder

shown by news media the day before they were contacted by police

      9
            Walton did not seek to suppress the testimony of Laumauna, who
also testified during the suppression hearing that he met with Detective Ogawa
and identified Walton and Elkshoulder as the men depicted in the surveillance
photos. Laumauna also identified Walton in a photo lineup, based on his
familiarity with Walton as a co-worker.

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to identify Walton and Elkshoulder, and that police did not know

Koki and Rodrigues had seen the photos.           Specifically, the order

explained that:
             [e]ach of the witnesses identified Elkshoulder and
             Walton independently as a result of their contact with
             defendants. The fact that the photos used in the
             photo lineup array [are] pictures of the defendants
             not in the video stills, but pictures of them as they
             appeared on different dates and times (i.e., photos
             from driver’s license or state identification cards)
             is not impermissibly suggestive.

             The circuit court also concluded that the police

inquiry to establish ownership of the GNC card found in the

backpack was within the scope of the search warrant and that the

card was not a closed container requiring an additional warrant.

C.     Recording of telephone conversation

             Prior to trial, the circuit court held an HRE Rule 104

hearing regarding the recorded telephone conversation between

Elkshoulder and Walton.        Elkshoulder indicated that he would

offer parts of the recording into evidence as exceptions to the

hearsay rule, as an admission by a party-opponent, or as a

statement against interest.

             Walton objected to the admission of the entire

transcript of the recording and the recording itself, arguing

that the recording was irrelevant, prejudicial, and that its

admission would violate Walton’s right of confrontation.               The

circuit court ruled that it would admit certain portions of the

recording, including the portion in which Walton stated that he



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stabbed CW two to three times.         The circuit court stated that it

would address confrontation and evidentiary issues at trial.

D.     Trial

       1.      State’s Case-in-Chief

               CW testified that on November 15, 2008 at approximately

1:00 p.m., two men approached him outside his taxicab near the

corner of Pensacola and Young streets and requested a ride.

There is no dispute that the two men were Walton and Elkshoulder.

CW agreed to give Walton and Elkshoulder a ride, and they entered

his taxi.       Elkshoulder sat in the rear seat directly behind CW,

and Walton sat in the rear seat on the passenger side.              At their

request, CW drove the men to Manoa.

               As the taxi approached Manoa, Elkshoulder asked CW the

cost of a fare to Waianae, and whether CW had change for a $100

bill.       CW responded that he was not sure if he had change, and

Elkshoulder told CW that he would not need change.             Walton was on

a cell phone during much of the ride and did not speak to CW.

Elkshoulder directed CW to drive to a park in Manoa, then changed

his mind and said he wanted to go to his sister’s home.

Eventually, the taxi reached a dead-end street, and Elkshoulder

told CW to stop because they had arrived at his sister’s house.

CW then stopped the taxi and reached to his right to stop the

taxi meter.




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           CW testified that as he turned his head to the right, a

left arm grabbed him around the neck from directly behind, and he

was cut on the right side of his neck.         CW was certain that

Elkshoulder had stabbed him, because, at the time, he saw Walton

still seated on the rear passenger side of the taxi.            CW

testified that both men then pinned him down between the two

front seats.   CW was facing the ceiling of the car and could see

both men pinning him down.      CW then saw another hand start

stabbing him a few more times with a knife.          CW grabbed the knife

with his left hand, which was cut as he struggled with the person

holding the weapon.     CW did not see who was holding the knife,

but saw three hands trying to pin him down while a fourth hand

was trying to stab him.      CW was unsure exactly how the struggle

ended.   The two men opened the rear doors of the taxi, exited and

ran.

           When police arrived at the scene, they recovered

various pieces of evidence, including two knives.           One knife was

found in the taxi behind the driver’s seat.          The second knife was

found under the taxi, closer to the driver’s side of the vehicle.

The police also recovered a backpack from inside the taxi.             The

police obtained a search warrant to search inside the backpack,

and its contents included the GNC card.

           CW explained that, following the attack, about $90 to

$100 was missing from one of his pants pockets, and that his

wallet was also missing from another pants pocket.           However, CW

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also testified that he received his wallet and cell phone from

the hospital when he was discharged a few days later.

           Detective Ogawa testified that on November 17, 2008, he

reviewed evidence recovered from the backpack pursuant to a

search warrant, including the GNC card and a Powerhouse Gym

membership card.    Detective Ogawa called the Ala Moana branch of

GNC, provided the store with the number that was printed on the

GNC card, and GNC provided him with a name associated with the

card.   Detective Ogawa also called Powerhouse Gym, which provided

him with a name associated with the gym membership card.             The GNC

card was associated with Walton and the Powerhouse Gym card was

associated with Elkshoulder.

           Detective Ogawa testified that he showed CW the photos

from a surveillance video taken near the corner where CW had

indicated he picked up the passengers who attacked him.            CW

identified the men in the photos as the passengers who attacked

him, and   Detective Ogawa then released copies of the photos to

news media via Crime Stoppers.       Detective Ogawa then received

tips via Crime Stoppers identifying Walton and Elkshoulder.             The

tips also revealed that Walton and Elkshoulder worked for

Staffing Partners as temporary workers in the HMSA building.

Detective Ogawa contacted a Staffing Partners employee who

confirmed that Walton and Elkshoulder were employees of the

company.   Detective Ogawa then contacted HMSA and interviewed

Koki, Rodrigues, and Laumauna.       Detective Ogawa showed the

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surveillance photos to Koki and Rodrigues, who identified Walton

and Elkshoulder.    Detective Ogawa also showed Koki and Rodrigues

photographic lineups that included state identification photos of

Walton, Elkshoulder and others with similar appearances.             Koki

and Rodrigues each identified Walton and Elkshoulder from the

lineups.

           Rodrigues testified that he worked at HMSA and

supervised both Walton and Elkshoulder.         On approximately

November 18, 2011, Rodrigues’s supervisor, Koki, directed him to

view photos on an online news site to try to determine who was in

the photos.   Rodrigues recognized Elkshoulder and Walton in the

photo, but he did not want to believe that it was them.

Rodrigues looked at the photo on the news site repeatedly because

it appeared fuzzy, but seeing a clearer image on the evening news

confirmed to him that the men in the photo were Elkshoulder and

Walton.

           Rodrigues testified that Elkshoulder called him on

November 19, 2011, and Rodrigues asked Elkshoulder if he knew his

face was being shown on the news.         According to Rodrigues,

Elkshoulder responded that “he’s sorry, that he messed up” and

that “[t]hings weren’t supposed to go down that way.”

Elkshoulder also told Rodrigues that he did not mean to hurt

anybody.

           Rodrigues further testified that Elkshoulder and Walton

always worked together, arrived together, and left together.

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According to Rodrigues, Elkshoulder seemed like an adult leader

and Walton seemed like a follower who was young and clueless.

Elkshoulder would tell Walton what to do, and Walton would listen

and not argue.    On cross-examination by Elkshoulder, Rodrigues

stated that during his telephone conversation with Elkshoulder,

Elkshoulder did not discuss details of the incident involving CW,

or refer to who stabbed anyone.

           Laumauna testified that he worked with Elkshoulder and

Walton at HMSA, and that he had invited them to his grandniece’s

birthday party at Ala Moana Beach Park on November 15, 2008, but

that neither Elkshoulder nor Walton attended.          While Laumauna was

at the party that day, he received a call from Elkshoulder, who

asked him for a ride from his sister’s house in Manoa.

Elkshoulder told Laumauna that “they” needed a ride from Manoa,

which Laumauna understood to mean that Walton was with

Elkshoulder.   Laumauna did not pick up Elkshoulder because he was

hosting the party.     In court, Laumauna was shown one of the

surveillance video photos, and he identified the two men in the

photo as Elkshoulder and Walton.

           Trauma surgeon Frederick Yost, M.D. testified that he

treated CW for two stab wounds to the neck.          Dr. Yost testified

that CW also suffered lacerations on his right forearm and left

hand and a puncture wound on his right hand.          On cross-

examination, Dr. Yost testified that one of CW’s neck wounds



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could have caused death if untreated, but that death from his

other wounds was unlikely.

           After the State rested, Walton and Elkshoulder each

moved for a judgment of acquittal.        The circuit court denied the

motions.

     2.    Elkshoulder’s defense

           Elkshoulder testified in his own defense.           Elkshoulder

stated that on November 15, 2008, he had planned to go to

Laumauna’s grandniece’s birthday party at Ala Moana Beach with

Elkshoulder’s girlfriend and her friend.         According to

Elkshoulder, Walton showed up unexpectedly at Elkshoulder’s

apartment at around 11:30 a.m.       According to Elkshoulder, Walton

told him that he needed a place to stay, and asked if he could

stay with Elkshoulder, who declined.        At some point,

Elkshoulder’s girlfriend no longer wanted to go to the party, so,

at about 12:30 p.m., Elkshoulder and Walton began walking down

Pensacola Street toward Ala Moana.

           According to Elkshoulder, Walton suggested catching a

taxi to go and get some money from a friend, at which point

Walton approached CW’s taxi and asked for a ride.           Elkshoulder

testified that Walton directed CW where to go.           According to

Elkshoulder, when the taxi stopped in Manoa, “it just happened

real fast.”   Elkshoulder explained that Walton whispered to him

to “get my back,” and Elkshoulder thought that Walton was going

to run out of the taxi without paying.         Elkshoulder testified

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that Walton then jumped on CW, at which point Elkshoulder exited

the taxi.    Elkshoulder stated that once he exited the taxi he

walked away at a fast pace but did not run.           Elkshoulder stated

that he heard the taxi’s horn honking repeatedly, and looked back

and saw the taxi shaking.       According to Elkshoulder, Walton

exited the cab from the back driver’s side.           Elkshoulder

testified that he continued walking, heard running behind him,

turned and saw Walton running toward him.          Elkshoulder stated

that he began to run away because he saw what looked like blood

on Walton’s shirt and shorts.        Elkshoulder stated that Walton

followed him into a small ravine, and that the following exchange

occurred:
            I turned to him and just the look on his face and he
            said I can’t believe it, I can’t believe it. And I
            said what and he said I stabbed him, I stabbed him.
            And my –- my heart just sank when I heard him say
            that, especially when I put together that what was on
            him when he came out was blood. And I didn’t know if
            [CW] was -- I didn’t know what happened to him, if he
            was still alive or whatever.

            Elkshoulder stated that he kept walking and wanted to

get away from Walton.      Elkshoulder stated that he called Laumauna

to ask for a ride, and that Laumauna said he was busy setting up

at the party.     According to Elkshoulder, he walked from Manoa to

Kapiolani Park and stayed there for several days.            On November

17, 2008, Elkshoulder walked to Walton’s girlfriend’s house, told

Walton he planned to turn himself in to police, and urged Walton

to turn himself in.      Elkshoulder stated that Walton refused to




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turn himself in and said he would leave, but did not say where he

would go.

             Elkshoulder testified that Rodrigues called him a few

days after the incident, and informed Elkshoulder that his face

was “all over the news and the paper.”           Elkshoulder testified

that he told Rodrigues:        “I didn’t have anything to do with it.

I messed up by going with John Walton and that was it.”

Elkshoulder further testified that he told Rodrigues that “[i]t

wasn’t supposed to happen that way, I didn’t know it was going to

happen that way,” and that “I said I didn’t hurt anybody and I

would never mean to hurt anybody.”          Elkshoulder turned himself in

to authorities and was arrested on November 21, 2008.

             According to Elkshoulder, Walton called Elkshoulder’s

cell phone on November 17, 2009 at about 10:00 a.m. from a number

with a Kansas area code.        Elkshoulder told Walton that he was

busy and to call back in the evening.          After hanging up,

Elkshoulder immediately called his attorney, a deputy public

defender (DPD).10     After consulting with the DPD, Elkshoulder

obtained a tape recorder and audio tape.           Elkshoulder stated that

his purpose for getting the tape recorder was to get Walton’s

side of the story and “[t]he truth of what happened that day.”

             Walton called back that evening, while Elkshoulder was

at his parents’ home.       Elkshoulder put his cell phone on speaker


        10
             The same DPD served as Elkshoulder’s trial attorney in the instant
case.

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mode and began to record his conversation with Walton.

Elkshoulder stated that he did not record the entire

conversation, because the cassette tape had 60 minutes of

recording capacity and he did not want to waste any recording

space on small talk.     Consequently, there were gaps in the tape

that indicated times when Elkshoulder turned the recorder on and

off.   Elkshoulder identified his Exhibit C as an accurate but

edited and shortened version of the taped recording.            Elkshoulder

offered it into evidence, upon which Walton requested and

conducted a voir dire examination.

           During the voir dire examination, Walton asked

Elkshoulder about his conversation with the DPD prior to making

the cassette recording.      The DPD objected and, at a bench

conference, stated that such questioning infringed on the

attorney-client privilege.      Walton argued that the DPD had made

himself a witness to how the recording was made.           Walton also

complained that the recording was not authenticated by any means

other than Elkshoulder’s self-serving statements.           Walton asked

the circuit court to allow questioning of the DPD about his

involvement in producing the recording.

           The State agreed with Walton that the DPD had made

himself a witness in this case by trying to introduce the

recording.   The DPD stated that he was not a witness because he

was not present when the recording was made.          The DPD also argued

that an adequate foundation was laid for the recording, and that

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Walton’s and the State’s arguments went to the weight of the

evidence rather than its admissibility.         The circuit court stated

that it would be a fair line of questioning to ask Elkshoulder

why the tape had been made, but that the DPD could not be

questioned as a witness.

           Walton argued that the DPD made himself a witness by

being directly involved in transferring the tape to CD format.

Walton argued that he should be able to inquire about the

conversation the DPD had with Elkshoulder prior to the making of

the recording.

           Walton filed a memorandum in support of his request to

question Elkshoulder regarding his discussions with the DPD

regarding the recording.      The court sustained Elkshoulder’s

objection as to attorney-client communications, but ruled that

Elkshoulder was subject to cross-examination concerning his

purpose and motive for recording the conversation, and concerning

various copies of the recording.        The circuit court stated that

Elkshoulder laid a proper foundation for the recording, and also

stated that prior to trial, the court listened to the original CD

recording and the enhanced CD recording several times to evaluate

the content of the recording.       The circuit court stated that

Walton had no legitimate need to determine what was communicated

between Elkshoulder and the DPD concerning the taped

conversation.



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           The circuit court further ruled that Walton’s inquiries

regarding whether the contents of the recording that were

transferred to the CD went to the weight of the evidence and

noted that Elkshoulder had made himself subject to cross-

examination.    The circuit court noted that all copies of the

recording had been available for weeks prior to trial to both the

State and Walton’s counsel to listen to and compare.             The circuit

court further stated that Walton had moved to continue the trial

date on more than one occasion for the specific purpose of

conducting tests on the recording and had never filed a timely

motion regarding the recordings.

           The CD version of the recording was entered into

evidence over objections by Walton and the State.             The court

instructed the jury that the recording included portions of a

telephone conversation between Elkshoulder and Walton, noted that

the recording had been edited by the court, instructed that the

jury must not speculate about what may have been edited out, and

explained that the recording would be available to the jury to

listen to during deliberations.        The recording was then played

for the jury.

           The recording included the following exchange:
                 ELKSHOULDER: Dude . . . Dude . . . how many
           times did you stab that guy, do you remember . . .
           between you and me . . .

                 WALTON:   I think 2-3 times . . .

                 ELKSHOULDER: Oh . . . okay . . . well, the
           thing is this . . .


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                 WALTON: I just remember stabbing like to the
           side . . . but 2-3 times.


           Elkshoulder testified about the recording on direct

examination as follows:
                 BY DPD: Okay. . . . [S]o when you made these
           recordings, why did you make these recordings?

                 A: I wanted the truth to come out. I wanted to
           basically just the truth to come out.

                 Q: Is there a way that you had planned to
           converse with [Walton] during these conversations?

                 A: No. When he called me the first time, that’s
           when I called you . . . and then we -- we consulted.
           And then the second time it wasn’t a plan, it was just
           a matter of him calling and just recording and trying
           to really put Mr. Walton at ease. And when I say at
           ease, there were some things that I had to say that
           were not true.

                 Q: Like what?

                 A: I told him I took the heat for both of us.
           Again, I hadn’t talked to him in a year, I didn’t know
           where he was except for the 785 area code, even [if]
           it was his phone. So, again, with respect to the
           recording of the conversations that we had, there were
           other things in there, again to put him at ease, I had
           to say that were not true.

                 Q: So the first recording, this was -- well, the
           first phone call was, again, what day?

                 A: November 17th and that was in the morning --

                 Q: Yeah.

                 A: -- on or around about 10 AM. And the second
           phone call was the same day that evening.

                 Q: Okay. The second phone call you called him or
           he called you?

                 A: He called me.

           On cross-examination by Walton, Elkshoulder

acknowledged that the backpack found in CW’s taxi had his name

written on it, but testified that he had given the backpack to



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Walton more than one month before the incident.           Elkshoulder said

a hair-band and computer flash drive that police found in the

backpack belonged to him, but that he did not know whether a

Powerhouse Gym membership card found in the backpack was the one

Walton had given to him.11

            On cross-examination by the State, Elkshoulder

testified that he immediately exited the taxi when Walton jumped

on CW because he was scared, but acknowledged that he did not see

Walton with a knife or other weapon.         According to Elkshoulder,

when he was 30 or 40 feet away from the taxi, he heard its horn

honking, turned, and saw Walton running toward him, then

Elkshoulder began running while Walton began calling his name.

Elkshoulder stated that he saw blood on Walton’s shorts and

shirt.

            Elkshoulder further testified that he later spoke to

Rodrigues on the telephone and told him that he did not mean for

anyone to get hurt and that he “didn’t have anything to do with

it.”    Elkshoulder stated that he recorded his conversation with

Walton because Elkshoulder wanted the truth to come out.

       3.   Walton’s Defense

            Walton did not present evidence or testimony.



      11
            The State subsequently obtained a stipulation from Walton and
Elkshoulder that HPD Detective Ogawa would testify if recalled that on
November 17, 2008, he contacted Powerhouse Gym owner Alvin Paguio regarding a
gym membership card found in the backpack discovered in CW’s taxi, and that
Paguio told Ogawa that the name the gym associated with a membership number on
the card was Elkshoulder.

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      4.      State’s Rebuttal

              The State recalled Rodrigues, who testified that when

he spoke to Elkshoulder on the telephone regarding Elkshoulder’s

face being on the news, he was certain that Elkshoulder did not

say “I didn’t have anything to do with it.”

      5.      Jury Instructions

              On May 27, 2011, Walton joined Elkshoulder’s running

objection to all jury instructions as to the charged offenses and

lesser included offenses, arguing that the words “as a principal”

should be added to clarify that the instructions regarding

substantive offenses apply to a defendant charged as a principal

rather than as an accomplice.          Walton also joined Elkshoulder’s

objection to the circuit court’s instruction regarding accomplice

liability,12 asserting a need to clarify and emphasize that the

intent to promote or facilitate the commission of a specific

offense was required.        The circuit court approved the jury

instructions over the above objections and so instructed the

jury.      Specifically, the court instructed the jury with regard to

Attempted Murder in the Second Degree as follows:
                    A person commits the offense of Attempted Murder
              in the Second Degree if he intentionally engages in
              conduct which, under the circumstances as he believes
              them to be, is a substantial step in a course of
              conduct intended or known to cause the death of
              another person.
                    There are two material elements of the offense
              of Attempted Murder in the Second Degree, each of



      12
            Specifically, Walton and Elkshoulder objected to Court’s
Supplemental Instruction No. KK.

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           which the prosecution must prove beyond a reasonable
           doubt.
                  These two elements are:
                  1. That on or about November 15, 2008, in the
           City and County of Honolulu, State of Hawai#i, the
           Defendant John Walton intentionally engaged in
           conduct; and
                  2. That the conduct, under the circumstances as
           defendant believed them to be, was a substantial step
           in a course of conduct intended or known to be
           practically certain by the defendant to cause the
           death of another person.
                  Conduct shall not be considered a substantial
           step unless it is strongly corroborative of the
           defendant’s intent to commit Murder in the Second
           Degree, which is intentionally or knowingly causing
           the death of another person.

           The circuit court also instructed the jury on the

lesser included offenses of Assault in the First Degree, Assault

in the Second Degree, Assault in the Third Degree, and Reckless

Endangering in the Second Degree and similarly did not include

the words “as a principal” in those instructions.

           Finally, the court instructed the jury with regard to

accomplice liability as follows:
                 A defendant charged with committing an offense
           may be guilty because he is an accomplice of another
           person in the commission of the offense. The
           prosecution must prove accomplice liability beyond a
           reasonable doubt.
                 A person is an accomplice of another in the
           commission of an offense if:
                 1. With the intent to promote or facilitate the
           commission of the offense he
                 a. solicits the other person to commit it; or
                 b. aids or agrees or attempts to aid the other
           person in the planning or commission of the offense.
                 Mere presence at the scene of an offense or
           knowledge that an offense is being committed, without
           more, does not make a person an accomplice to the
           offense. However, if the person plans or participates
           in the commission of an offense with the intent to
           promote or facilitate the offense, he is an accomplice
           to the commission of the offense.




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     6.    Closing arguments

           The State argued that both Walton and Elkshoulder

participated in the stabbing incident.         The State summarized CW’s

testimony:
                 Who stabbed you? There were only three people
           in the car. [CW] was in the front, the two defendants
           in the back. Who stabbed you? The Asian guy. Are
           you absolutely certain? Yes, it was the Asian guy.
           Who held you down with both hands while the knife is
           being pushed down on you? He talks about the shorter
           guy, meaning [] Walton, pushing him down while he
           still saw the knife over him. [CW] says there were
           three hands on me and one hand holding the knife.

           The State further argued that although there was “no

doubt” that the recorded phone conversation was between

Elkshoulder and Walton, “the circumstances under which they took

place [were] highly suspect” because at the time of the

recording, Elkshoulder was awaiting trial and Walton was “nowhere

to be found.”

           The State also highlighted testimony about Elkshoulder

being “the leader and [Walton] being the follower,” and argued

that Walton was guilty as an accomplice.
                 [W]e don’t need to prove who was the principal
           and who was the accomplice. The charge is Attempted
           Murder in the Second Degree, one or both of them
           stabbed him and one or both of them helped each other.
                 Now, [] Elkshoulder has accused [] Walton of
           doing it and he uses this tape. [] Walton says yeah,
           I stabbed him two to three times. On the assumption
           that you find the tape credible and you believe that
           [] Walton is actually the person who stabbed the
           taxicab driver, [CW], two to three times, he says that
           right on the tape and you have that tape before you,
           [] Elkshoulder was still there and still held.
                 If [CW] was mistaken in who actually stabbed
           him, certainly he was not mistaken that both of them
           were in the car, two sets of hands were on him.
                 Now, when the defense of [] Elkshoulder presents
           this tape to you he talks about how many times did you


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           stab, two to three times. But listen to that tape
           some more as you hear [] Walton saying, you know, he’s
           saying they’re talking about the honking of the horn.
           [] Walton says, you know, this whole F-ing thing, the
           honking of the horn, and then -- and then me and you
           skip out. Then me and you skip out. Listen to that
           part of that tape.
                 And when you listen to that tape you’re going
           to see [] Elkshoulder has a lot of time to insert his
           own defense there, he’s talking about what he did,
           what he did, what he did. It’s almost like a setup,
           almost like a setup. But [] Walton says yeah, but the
           honking of the horn and then you and I got out. That
           means . . . [Elkshoulder] was in there, was in there.
           By [] Walton’s own admission of himself being
           involved, he involves [] Elkshoulder as well.
                 So if [CW] was mistaken, the bottom line
           is so what? If he’s mistaken, then it was [Walton]
           that stabbed him and it was [Elkshoulder] who held him
           down. Either way they’re both guilty either as the
           person who actually stabbed him or an accomplice.

           Elkshoulder argued that Walton was the person who

stabbed CW, and that the “sudden and unexpected attack was . . .

a surprise to [] Elkshoulder, who was an unwitting, accidental

spectator and witness to this incident.”         Elkshoulder argued that

Walton’s recorded statement that he stabbed CW “about two to

three times . . . explains all the injuries that you see here

that was suffered by [CW].”       Elkshoulder also argued that CW’s

recollection of certain details the day of the incident – such as

which passenger directed him where to drive – was inconsistent.

           Walton argued that Elkshoulder’s testimony was not

credible, and that he “wasn’t being straightforward and honest

with [the jury] when he attempts to blame [] Walton for doing all

of the bad things that happened later on.”          Walton noted CW’s

testimony that the “Asian male” stabbed him, and that he never




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saw “the Caucasian male” with the knife.          Walton further argued

that:
            there is absolutely no question that [CW] has been
            consistent throughout all of his testimony and his --
            and his contact with the police and with the court
            that it was not [] Walton that did anything. [] Walton
            didn’t have a knife, he was seated in the back seat
            when [CW] was first stabbed, and that it was the guy,
            the fat guy, the big guy, the Asian guy, the guy who
            he struggled with with the knife, [] Elkshoulder, who
            stabbed him.

            Walton also argued that the recording “in which

[Walton] is claimed to have stated that he stabbed [CW]” was not

credible:
                  . . . First of all, who provided the tape
            recorder? . . . It wasn’t . . . [the DPD]. The
            testimony was that he didn’t have a hand in actually
            setting up the conversation and taping it. Did
            Detective Ogawa, the police investigator who was
            responsible for being the lead investigator in this
            case, did he have a copy of the tape recording so that
            he could conduct a police investigation about it?
            Well, you heard the detective testify right here
            before you that he had been told about the recording
            but never got a copy. Never had a chance to duly take
            a look at it, examine it forensically or do whatever,
            never got a copy.
                  Well, during the trial did [] Rodrigues or []
            Laumauna testify under oath subject to cross-
            examination that they listened to the recording and
            identified [] Elkshoulder and [] Walton on the
            recording? Was there any testimony like that? No,
            there wasn’t, there was no such testimony. Did the
            prosecutor present the recording as part of its case?
            Did [the State] say hey, we have this recording, we
            want you to listen to it? No, he did not.
                  So what is the state of the evidence about the
            recording? The only person vouching for it as being
            -- as something that accurately and truly reflects
            what it purports to be, by testimony here by the
            evidence that is before you, ladies and gentlemen of
            the jury, is [] Elkshoulder. And you heard about how
            you judge credibility and [the State] went through a
            whole list, including bias, motive, whatever.
                  Now, we would submit . . . that [] Elkshoulder
            and his tape recording and his claim that it’s
            truthful and accurate, is not worthy of your belief.
            It’s not worthy of any type of credibility.
            . . . .
                  . . . Was there some type of manipulation going
            on with the recording? We certainly don’t know but

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            . . . we would submit that given the type of
            circumstances in which the recording was presented,
            that it lacks credibility and it’s not worthy of your
            belief.

            In rebuttal, the State argued that although the

recording – which the State characterized as “suspect” – would

indicate that Walton was guilty, “that’s not how the State

believes [] Walton is guilty.”
                  [The] State believes [] Walton is guilty by the
            very words the way [CW] told you what happened, that
            upon [CW] being stabbed, he was pulled down by two of
            the men and that the knife over him, he struggled with
            as a third attempt was made to stab him. Whichever of
            the two it may have been, [CW] believes it was
            probably still [] Elkshoulder. But, regardless, the
            two of them worked in concert together, they were both
            participants. It wasn’t one was a witness and one did
            everything else, they worked together.
            . . . .
                  With respect to this tape, you know, well, it is
            what it is. But we’re not asking you to convict []
            Walton for attempted murder based on that tape. That
            tape was full of deception. We don’t know what []
            Elkshoulder did, but we know he’s a leader, we know
            Walton is a follower, kind of clueless. We don’t know
            everything about what happened with that tape but that
            tape just reeks with suspicion.
                  If it was anymore substantial and believable,
            the State would have presented it in its case-in-chief
            but it is not worthy of belief. Exactly what
            [Walton’s counsel] said, it is not worthy of belief.
            But [CW] is worthy of belief and it is on that
            evidence that we ask you to find the defendants, both
            of them, guilty for both charges.

     7.     Verdict and sentencing

            The jury found Walton guilty as charged on both counts.

In contrast, the jury found Elkshoulder guilty of Assault in the

First Degree and Robbery in the First Degree.           Pursuant to a

special interrogatory, the jury found a merger of Walton’s

offenses.    On August 10, 2011, the circuit court entered its

Judgment of Conviction and Sentence, convicting Walton of


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Attempted Murder in the Second Degree and Robbery in the First

Degree.       The judgment dismissed the Robbery charge without

prejudice, and sentenced Walton to a life term of incarceration

with the possibility of parole for Attempted Murder in the Second

Degree.

E.     ICA Appeal

               In his opening brief to the ICA, Walton asserted six

points of error.        First, Walton argued that the circuit court

erred in denying his motion for severance, stating that

Elkshoulder’s and his defenses were in irreconcilable conflict

with each other because Elkshoulder sought to blame Walton for

the stabbing.        Second, Walton argued that the circuit court erred

in denying his motion to suppress the identifications made by

Koki and Rodrigues, and the information obtained using the GNC

card.       Third, Walton argued that the circuit court erred in

admitting certain photographs.13          Fourth, Walton argued that the

circuit court erred when it admitted the recorded phone

conversation because it was not properly authenticated, was

improper hearsay, and he was denied his right to confront

Elkshoulder and the DPD about their conversations regarding the

recording.       Fifth, Walton argued that the jury instructions

regarding the charged offense and lesser included offenses

“resulted in prejudicially insufficient, erroneous, inconsistent,



       13
               Walton does not argue this point in his application to this court.

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or misleading instructions.”       Finally, Walton argued that the

State’s evidence was “defective” and that the circuit court thus

erred in denying his motion for a judgment of acquittal at the

conclusion of the State’s case.

            In its Memorandum Opinion, the ICA rejected all of

Walton’s claims and affirmed the circuit court’s August 10, 2011

judgment.    First, the ICA held that the circuit court did not

abuse its discretion in denying Walton’s motions for severance.

The ICA explained that although Walton’s and Elkshoulder’s

defenses “conflicted to an extent,” Walton failed to demonstrate

that the conflict alone led the jury to infer his guilt.             The ICA

further explained that Walton failed to demonstrate that evidence

damaging to his case in the joint trial would not have been

admissible in a separate trial.        Second, the ICA held that the

photographic line-up was not impermissibly suggestive, and that

Walton did not have a reasonable expectation of privacy in GNC’s

business records.     Third, the ICA held that the recorded

telephone conversation was properly authenticated and admitted as

a statement against interest.       Fourth, the ICA held that the

circuit court properly instructed the jury.          Finally, the ICA

held that substantial evidence supported Walton’s conviction.14




     14
            The ICA also held that the circuit court properly admitted
photographs of CW’s injury. Again, Walton does not raise that issue here.

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                         II.   Standards of Review

A.     Severance of Defendants

             This court reviews the denial of a motion for severance

for an abuse of discretion.         State v. Matias, 57 Haw. 96, 98, 550

P.2d 900, 902 (1976); State v. Timas, 82 Hawai#i 499, 512, 923

P.2d 916, 929 (App. 1996).        In deciding a motion for severance,

the trial court must “balance possible prejudice to the defendant

from joinder with the public interest in efficient use of

judicial time through joint trial of defendants and offenses

which are connected.”       Matias, 57 Haw. at 98, 550 P.2d at 902.

An appellate court “may not conclude that the defendant suffered

prejudice from a joint trial unless it first concludes that a

defendant was denied a fair trial.          What might have happened had

the motion for severance been granted is irrelevant speculation.”

Timas, 82 Hawai#i at 512, 923 P.2d at 929 (brackets and ellipsis

omitted) (quoting State v. Gaspar, 8 Haw. App. 317, 327, 801 P.2d

30, 35 (App. 1990)).

B.     Motion to Suppress Evidence and Identification Testimony

             This court reviews a trial court’s ruling on a motion

to suppress evidence de novo:
             to determine whether the ruling was “right” or
             “wrong.” The proponent of the motion to suppress has
             the burden of establishing, by a preponderance of the
             evidence, that the statements or items sought to be
             excluded were unlawfully secured and that his or her
             right to be free from unreasonable searches or
             seizures was violated under the fourth amendment to
             the United States Constitution and article I, section
             7 of the Hawai#i Constitution.



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State v. Spillner, 116 Hawai#i 351, 357, 173 P.3d 498, 504 (2007)

(citations omitted).
                   When the defendant challenges admissibility of
             eyewitness identification on the grounds of
             impermissibly suggestive pre-trial identification
             procedure, he or she has the burden of proof, and the
             court, trial or appellate, is faced with two
             questions: (1) whether the procedure was impermissibly
             or unnecessarily suggestive; and (2) if so, whether,
             upon viewing the totality of the circumstances, such
             as opportunity to view at the time of the crime, the
             degree of attention, and the elapsed time, the
             witness’s identification is deemed sufficiently
             reliable so that it is worthy of presentation to and
             consideration by the jury.

State v. Araki, 82 Hawai#i 474, 484, 923 P.2d 891, 901 (1996)

(quoting State v. Okumura, 78 Hawai#i 383, 391, 894 P.2d 80, 88

(1995)).

C.     Jury Instructions

             It is the circuit court’s duty and ultimate

responsibility to ensure that the jury was properly instructed on

issues of criminal liability.         State v. Kikuta, 125 Hawai#i 78,

90, 253 P.3d 639, 651 (2011).         “When jury instructions, or the

omission thereof, are at issue on appeal, the standard of review

is whether, when read and considered as a whole, the instructions

given are prejudicially insufficient, erroneous, inconsistent, or

misleading.     Erroneous instructions are presumptively harmful and

are a ground for reversal unless it affirmatively appears from

the record as a whole that the error was not prejudicial.”

Kobashigawa v. Silva, 129 Hawai#i 313, 320, 300 P.3d 579, 586

(2013).



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D.     Motion for Judgment of Acquittal/Sufficiency of Evidence

                  The standard to be applied by the trial
             court in ruling upon a motion for a judgment
             of acquittal is whether, upon the evidence
             viewed in the light most favorable to the
             prosecution and in full recognition of the
             province of the [trier of fact], a reasonable
             mind might fairly conclude guilt beyond a
             reasonable doubt.

State v. Keawe, 107 Hawai#i 1, 4, 108 P.3d 304, 307 (2005).               This

court employs the same standard of review in reviewing a motion

for a judgment of acquittal.         Id.

                              III.   Discussion

          PART I: OPINION OF THE COURT BY RECKTENWALD, C.J.

             We hold that the circuit court erred in denying

Walton’s motion for severance because Walton’s and Elkshoulder’s

irreconcilable defenses, combined with the admission of the

recorded telephone conversation, denied Walton his right to a

fair trial.     Although our resolution of the severance issue is

dispositive of this appeal, we nevertheless address Walton’s

arguments concerning the suppression of evidence and jury

instructions, because those issues may arise again on remand in

Walton’s separate trial.        See, e.g., State v. Solomon, 107

Hawai#i 117, 120, 111 P.3d 12, 15 (2005) (addressing points of

error “in order to provide guidance to the [trial court] on

remand”).     Finally, we consider Walton’s argument that the

circuit court erred in denying his motion for a judgment of

acquittal, because the double jeopardy clauses of the United


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States Constitution and Hawai#i Constitution would prohibit

Walton’s retrial if the State had failed to adduce sufficient

evidence for a jury to find guilt beyond a reasonable doubt.

See, e.g., State v. Kalaola, 124 Hawai#i 43, 52, 237 P.3d 1109,

1118 (2010).

A.     The circuit court erred in denying Walton’s motion for
       severance

             Walton argues that the circuit court erred in denying

his motion for severance because his and Elkshoulder’s defenses

were “inconsistent, antagonistic, and irreconcilable,” and

because he was “substantially prejudiced” by evidence admitted at

trial.    Specifically, Walton argues that he suffered prejudice

because Elkshoulder was allowed to introduce the recorded

telephone conversation in which Walton admitted that he had

stabbed CW.

             As set forth below, the circuit court abused its

discretion in denying Walton’s motion for severance.              Under the

circumstances of this case, Walton was denied a fair trial where

he and Elkshoulder not only had irreconcilable defenses, but

Elkshoulder offered a recording containing Walton’s admission

that he stabbed CW.       Walton therefore had to defend against

evidence supporting two different theories of his guilt, one

advanced by the State and one by his co-defendant.




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           Hawai#i Rules of Penal Procedure (HRPP) Rule

8(b)(2011), permits joinder of two or more defendants in the same

charge:
           (1) when each of the defendants is charged with
           accountability for each offense included in the
           charge;
           (2) when each of the defendants is charged with
           conspiracy and some of the defendants are also charged
           with one or more offenses alleged to be in furtherance
           of the conspiracy; or
           (3) when, even if conspiracy is not charged and all of
           the defendants are not charged in each count, the
           several offenses charged:
           (i) were part of a common scheme or plan; or
           (ii) were so closely connected in respect to time,
           place and occasion that it would be difficult to
           separate proof of one charge from proof of the others.

           However, “[i]f it appears that a defendant or the

government is prejudiced by a joinder of offenses or of

defendants in a charge or by such joinder for trial together, the

court may order an election or separate trials of counts, grant a

severance of defendants or provide whatever other relief justice

requires.”    HRPP Rule 14.

           In deciding a motion for severance, the trial court

must “balance the possible prejudice to the defendant from

joinder with the public interest in efficient use of judicial

time through joint trial of defendants and offenses which are

connected.”    State v. Matias, 57 Haw. 96, 98, 550 P.2d 900, 902

(1976).   An appellate court “may not conclude that the defendant

suffered prejudice from a joint trial unless it first concludes

that a defendant was denied a fair trial.”          Timas, 82 Hawai#i at




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511, 923 P.2d at 929 (ellipsis and brackets omitted) (quoting

State v. Gaspar, 8 Haw. App. 317, 327, 801 P.2d 30, 35 (1990)).

           The defendant bears the burden of proving a denial of a

fair trial.   Timas, 82 Hawai#i at 512, 923 P.2d at 928.           A joint

trial may be unfair to one defendant when: (1) the core of each

defense is in irreconcilable conflict with the other, (2) the

defendant in question is prevented from introducing evidence that

would have been admissible in that defendant’s separate trial not

involving other defendants, or (3) evidence damaging to the

defendant in question is admitted and it would not have been

admissible in that defendant’s separate trial not involving other

defendants.   Gaspar, 8 Haw. App. at 327, 801 P.2d at 35; see also

Timas, 82 Hawai#i at 511, 923 P.2d at 928.         As the United States

Supreme Court has observed, however, there is no test or

exclusive list of prejudices because “[t]he risk of prejudice

will vary with the facts in each case.”         Zafiro v. United States,

506 U.S. 534, 539 (1993).

           It is well settled that defendants are not entitled to

severance merely because their defenses are inconsistent or they

may have a better chance of acquittal in separate trials.             Id. at

540.   As the Ninth Circuit has explained,
           Mere inconsistency in defense positions is
           insufficient to find codefendants’ defenses
           antagonistic. Inconsistency, alone, seldom produces
           the type of prejudice that warrants reversal. The
           probability of reversible prejudice increases as the
           defenses move beyond the merely inconsistent to the
           antagonistic.



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           Mutually exclusive defenses are said to exist when
           acquittal of one codefendant would necessarily call
           for the conviction of the other. The prototypical
           example is a trial in which each of two defendants
           claims innocence, seeking to prove instead that the
           other committed the crime.


United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991)

(internal citations and quotation marks omitted); United States

v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996) (“Antagonism

between defenses or the desire of one defendant to exculpate

himself by inculpating a codefendant . . . is insufficient to

require severance.”).

           Although the joinder of trials in which defendants

maintain mutually exclusive defenses produces heightened dangers

of prejudice, there is no per se rule against joinder in such

cases.   Tootick, 952 F.2d at 1083; Zafiro, 506 U.S. at 538

(“Mutually antagonistic defenses are not prejudicial per se.”).

Rather, “in order to establish an abuse of discretion, the

defendant[] must demonstrate that clear and manifest prejudice

did occur.”   Tootick, 952 F.2d at 1083.

           For example, in State v. Mabuti, 72 Haw. 106, 807 P.2d

1264 (1991), two co-defendants were jointly tried and both were

convicted of murder in the beating death of a teenager.            72 Haw.

at 109, 807 P.2d at 1266.      One of the defendants, Joefrey Mabuti,

testified that he was not involved in the beating, and the other

defendant, Vicente Acosta, testified that he tried to stop the




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beating, and that he saw Mabuti participate in the beating.              Id.

at 109-10, 807 P.2d at 1267.

            Before Mabuti and Acosta’s joint trial, another

individual, Enrique Pintoy, confessed to his own participation in

the beating, and stated that Mabuti had participated in the

beating.    Id. at at 110, 807 P.2d at 1267.        Acosta sought to have

Pintoy’s confession admitted, as a statement against interest,

arguing that it was exculpatory as to himself.           Id.   Mabuti,

however, objected, because Pintoy’s confession was damaging to

his case.    Id.   After the parties redacted Pintoy’s statement,

what was left “was of little consequence,” and Acosta chose not

to use it at trial.      Id.

            Based, in part, on Pintoy’s confession, Acosta made

several attempts to have the trial severed.           Id. at 111, 807 P.2d

at 1267.    After Acosta’s initial motion was denied by a motions

judge, the trial judge twice stated that the case should have

been severed, but nevertheless denied Acosta’s motions because he

felt bound by the earlier ruling of the motions judge.15            Id. at

      15
            In the instant case, Judge Town originally consolidated the trial,
and Judge Garibaldi was subsequently asked to sever. In denying Walton’s
March 23, 2011 motion for severance, Judge Garibaldi noted that she was “not
inclined to alter the decision that was made by [Judge Town].” Specifically,
Judge Garibaldi explained that “[u]nless there are cogent reasons to support a
second court’s action, any modification of a prior ruling of another court of
equal and concurrent jurisdiction is deemed –- could be deemed an abuse of
discretion.” In denying Elkshoulder’s May 12, 2011 motion for severance — to
which Walton joined — Judge Garibaldi explained that she was “torn at this
point” and “not quite certain,” and that it was “a very close issue.” Judge
Garibaldi nevertheless concluded that she was not “inclined to set aside [the
court’s] prior order denying the motion to sever the trial.”
            As this case makes clear, it is “very difficult for the trial
judge to make a finding on the prejudice issue before trial, as it involves
                                                                (continued...)

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110, 807 P.2d at 1267.      On appeal, Mabuti and Acosta each argued

that their trials should have been severed.           Id. at 113, 807 P.2d

at 1268.

            This court concluded that the trial court abused its

discretion in denying Acosta’s motion for severance because he

was prejudiced by not being able to present his exculpatory

evidence, i.e., the unredacted statement of Pintoy.            Id. at 114,

807 P.2d at 1269.     However, this court rejected Mabuti’s argument

that the trial should have been severed.          The court concluded

that Mabuti’s and Acosta’s defenses were not sufficiently

antagonistic because “any combination of guilty or not guilty

verdicts, as to either or both of these defendants, would have

withstood any complaint of inconsistent verdicts.”            Id. at 113,

807 P.2d at 1268.     The court further noted that Mabuti was

allowed to present all of his evidence.          Id. at 113-14, 807 P.2d

at 1269.

            In Tootick, three individuals — Moses Tootick, Charles

Frank, and Aaron Hart — drove to a secluded hill, where Hart was

      15
       (...continued)
speculation about many things which may or may not occur.” Matias, 57 Haw. at
98, 550 P.2d at 902 (quotation marks and citation omitted). Here, for
example, prior to trial it was impossible for the circuit court to know for
certain whether Elkshoulder would testify, and, consequently, whether the
recorded conversation would be offered as evidence. Because of this
difficulty in determining prejudice prior to trial, a pretrial motion for
severance must also be renewed during trial or else any claim of error will be
considered waived. State v. Balanza, 93 Hawai#i 279, 288, 1 P.3d 281, 290
(2000); State v. Hilongo, 64 Haw. 577, 578, 645 P.2d 314, 316 (1982) (“failure
to renew the motion to sever under [HRPP Rule 14] during the course of the
trial waived any claimed error”). Thus, in evaluating each successive motion
for severance, the trial court must consider anew whether “it appears that a
defendant or the government is prejudiced by a joinder of offenses or of
defendants in a charge or by such joinder for trial together.” HRPP Rule 14.

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stabbed.   Hart testified that Frank stabbed him.          Id. at 1080.

Frank testified that Tootick stabbed Hart.          Id. at 1081.     Tootick

did not testify, but his lawyer claimed that Tootick was highly

intoxicated and was either passed out or was asleep during the

entire episode.    Id.   The Ninth Circuit explained that “[b]ecause

only Frank and Tootick were present when Hart was attacked, and

because there was no suggestion that Hart injured himself, the

jury could not acquit Tootick without disbelieving Frank.             Each

defense theory contradicted the other in such a way that the

acquittal of one necessitates the conviction of the other.”             Id.

The Ninth Circuit held, therefore, that Tootick’s and Frank’s

defenses were irreconcilable.       Id.

           Like in Tootick, Walton’s and Elkshoulder’s defenses

were irreconcilable.     Elkshoulder testified that Walton jumped on

CW and that he immediately got out of the taxi and started

walking away.    In short, Elkshoulder argued that he was not in

the taxi when CW was stabbed.       Walton, however, also argued that

he did not stab CW.      In this regard, during his cross-examination

of CW, Walton elicited testimony confirming that it was

Elkshoulder who had initially grabbed and stabbed CW.            Walton

further elicited testimony that CW never saw him holding a knife.

Walton’s and Elkshoulder’s defenses were therefore irreconcilable

because they each maintained that the other person stabbed CW.

See Tootick, 952 F.2d at 1081.



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            As stated above, there is no per se rule against

joinder in trials in which defendants maintain mutually exclusive

defenses.    Tootick, 952 F.2d at 1083; Zafiro, 506 U.S. at 538.

Here, however, the admission of the recording — in conjunction

with Walton and Elkshoulder’s irreconcilable defenses — deprived

Walton of a fair trial.      Courts have recognized that “the primary

danger that [the rule requiring severance based on irreconcilable

defenses] seeks to avoid is a defendant faced with two

prosecutors — the state and his co-defendant.”           United States v.

Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1989); United States v.

Lee, 744 F.2d 1124, 1126 (5th Cir. 1984).         “The rule is also

designed to prevent a situation in which each defendant is the

government’s best witness against the other.”          Lee, 744 F.2d at

1126.   Here, Walton was in effect forced to face two prosecutors,

the State and Elkshoulder, each of which offered different

evidence supporting conflicting theories of his culpability.

            On the recording, Walton admitted to stabbing CW “2-3

times.”   Elkshoulder relied on the recording to argue that Walton

had stabbed CW.    In contrast, the State asserted that “it was not

Walton who stabbed . . . [CW], it was Elkshoulder who stabbed

him,” while Walton helped to hold CW down.

            Because the recording was inconsistent with the State’s

theory of the case, the State contended that it was “scripted”

and “rehearsed.”    The State repeated its position during its

closing argument, arguing that “the tape was rehearsed,”

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specifically noting that the circumstances under which the

recording was made were “highly suspect.”         And, during its

rebuttal argument, the State argued that the “tape just reeks

with suspicion,” noting that “[i]f it was anymore substantial and

believable, the State would have presented it in its case in

chief but it is not worthy of belief.”         Nevertheless, during its

closing argument, the State argued that the jury could still find

Walton guilty even if the jury found the tape credible.            In

effect, the State was able to rely on its primary theory (i.e.,

that Walton held CW down), while simultaneously suggesting that

the jury could accept Elkshoulder’s theory (i.e., that Walton

wielded the knife).     Similarly, Walton had to defend against both

theories.

            As it turned out, Elkshoulder’s recording appears to

have been persuasive evidence against Walton.          Despite the

State’s theory of the case, and CW’s testimony in support of that

theory, the jury — after hearing Walton’s admission on the

recording — convicted Walton of attempted murder, but convicted

Elkshoulder only of assault in the first degree.           It is clear,

therefore, that Elkshoulder’s offering of a recording in which

Walton confessed to stabbing CW, where the State challenged the

veracity of the recording, and where Walton’s apparent confession

was inconsistent with the State’s theory of the case, prejudiced

Walton and denied him a fair trial.



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           Courts of this State have stated that “speculation

about what might have happened had a motion for severance been

granted is irrelevant,” and that the “only relevant facts are

what actually happened.”      Gaspar, 8 Haw. App. at 328, 801 P.2d at

36 (rejecting defendant’s argument that he did not testify

because his testimony would have implicated his co-defendant, who

would have retaliated by testifying and incriminating defendant);

State v. White, 5 Haw. App. 670, 672, 706 P.2d 1331, 1333 (1985)

(finding that trial court did not abuse its discretion in denying

defendant’s motion for severance where defendant was not

prevented from presenting his evidence, and no damaging evidence

was introduced in the joint trial that would not have been

admissible in defendant’s separate trial).          In this case “what

actually happened” prejudiced Walton because the admission of the

recording unfairly forced Walton to, in effect, confront two

prosecutors.

           Moreover, it appears that, had Walton’s trial been

severed, the recording would not have been offered by the State

in his separate trial.      It was Elkshoulder who authenticated the

tape through his own testimony.       As stated above, the State

attacked the recording as “rehearsed,” “scripted,” “highly

suspect,” “reek[ing] with suspicion,” and “not worthy of belief.”

Any argument by the State that it would have offered the

recording in Walton’s separate trial, therefore, would appear to

be inconsistent with that position.        Moreover, absent the

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testimony of Elkshoulder, it is unclear how the State would have

been able to authenticate the recording.

             Accordingly, on the facts of this case, Walton was

denied a fair trial.       The circuit court therefore abused its

discretion in denying Walton’s motion for severance.

B.     The circuit court correctly denied Walton’s motion to
       suppress identification evidence

             Walton also challenges the admissibility of

identification evidence from two of his co-workers, Koki and

Rodrigues.     Specifically, Walton argues that the “circumstances

leading up to the photographic line-up, including repeated prior

viewings, and prior comments and opinions from others, resulted

in bolstering and tainting the subsequent photo line-up procedure

as well as the in-court trial identifications.”

             At trial, Rodrigues testified that he identified Walton

in the surveillance photos.         Although Koki did not testify at

trial, Detective Ogawa testified that Koki identified the men in

the surveillance photos as Walton and Elkshoulder, and that Koki

also identified Walton and Elkshoulder in photo line-ups.

Laumauna also testified at trial that the men in the surveillance

photos were Walton and Elkshoulder.          Although Walton sought to

suppress the identification evidence from Rodrigues and Koki, he

never sought to suppress Laumauna’s testimony.             Given Laumauna’s

identification of Walton and Elkshoulder, it is therefore unclear

what prejudice, if any, Walton suffered as a result of


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Rodrigues’s and Koki’s identifications.          Nevertheless, for the

reasons set forth below, we conclude that the circuit court did

not err in denying Walton’s motion to suppress the identification

evidence.

            In general, “[a] conviction based on eyewitness

identification at trial will be set aside if a pretrial

identification by photographic display was conducted in a manner

impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.”           State v. Malani,

59 Haw. 167, 170, 578 P.2d 236, 238 (1978).           Specifically,
            When the defendant challenges admissibility of
            eyewitness identification on the grounds of
            impermissibly suggestive pretrial identification
            procedure, he or she has the burden of proof, and the
            court, trial or appellate, is faced with two
            questions: (1) whether the procedure was impermissibly
            or unnecessarily suggestive; and (2) if so, whether,
            upon viewing the totality of the circumstances, such
            as opportunity to view at the time of the crime, the
            degree of attention, the accuracy of prior
            description, the level of certainty, and the elapsed
            time, the witness’ identification is deemed
            sufficiently reliable so that it is worthy of
            presentation to and consideration by the jury.

State v. DeCenso, 5 Haw. App. 127, 131, 681 P.2d 573, 577-78

(1984).

            As a preliminary matter, we note that this case does

not raise many of the concerns usually associated with eyewitness

identifications because Koki and Rodrigues did not witness the

incident, and neither of them identified Walton as participating

in the criminal conduct at issue in this case.            See, e.g., State

v. Cabagbag, 127 Hawai#i 302, 310-11, 277 P.3d 1027, 1035-36


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(2012) (discussing recent studies on the reliability of

eyewitness identifications).       Instead, Rodrigues and Koki merely

confirmed the identity of Elkshoulder and Walton in surveillance

camera photos and photo line-ups, based on their familiarity with

Walton and Elkshoulder from work.         In any event, the

identification process used in this case was not improper.

           As stated above, at Walton’s motion to suppress

hearing, Rodrigues testified that he went to an online news

website to view photos of two men “accused of a crime” after his

supervisor called him and told him “to check out the news.”

Rodrigues stated that the photos were “kind of blurry but . . .

there’s certain things that you can pick out.”           Rodrigues stated

that he looked at the photos on the website “[a]bout 20 times”

and consulted with his family, who had met Elkshoulder.

Rodrigues testified that, although the photos on the website were

“kind of hard,” “once I seen [the photos] on the news I knew

definitely” that the photos depicted Walton and Elkshoulder.

Rodrigues explained that he was able to identify Walton by “[h]is

stature, the way he –- just the overall appearance, the style of

his hair, the glasses, the backpack, just that kind of things in

nature.”   Rodrigues further explained that he had been

supervising Walton at work for about five months, and that he had

been supervising Elkshoulder for about seven months.            Rodrigues

stated that a day or two later, police contacted him and showed

him the same surveillance photo, and that, about a month later,

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he was contacted by police to view a photographic lineup, from

which he identified Walton.

            Koki similarly testified that he received a phone call

from someone who told him to look at a surveillance photo in an

online news report.     The person told Koki, “I think it’s one of

your guys” but did not mention any names.         Koki stated that he

looked at the photo online about ten times over ten minutes,

after which he called his manager and stated, “I believe this is

[Elkshoulder] and [Walton].”       Koki explained that he concluded on

his own that it was Elkshoulder and Walton in the photo.             Koki

noted   that he identified Elkshoulder in the photo by his

clothing and hair, and identified Walton by his hair and the

backpack.    Koki stated that almost a month later, he identified

Walton and Elkshoulder from a lineup of photos.

            In other words, Rodrigues and Koki each identified

Walton and Elkshoulder as the men depicted in the surveillance

photograph before they had been contacted by the police.             Based

on their regular contact with Elkshoulder and Walton, Rodrigues,

and Koki were able to identify them as the individuals depicted

in the news segment and the photo line-up.          The circuit court

correctly concluded, therefore, that Koki and Rodrigues

identified Walton and Elkshoulder independently as a result of

their familiarity with them.

            Moreover, the photographic line-up was not

impermissibly suggestive.      Detective Michael Ogawa testified that

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he put together a photographic lineup using photos from Hawai#i

driver’s licenses and state IDs, and showed them to Rodrigues and

Koki.    Detective Ogawa also stated that he showed Rodrigues and

Koki photographs taken from the surveillance video.              The images

included in the photo line-up are not suggestive, and the record

does not indicate that the photo line-up was otherwise conducted

in an impermissibly suggestive manner.           In this regard, the

police first showed Rodrigues and Koki the surveillance photo and

then showed them the photo line-up.          Rodrigues and Koki then each

identified Walton as a person with whom they had worked.               The

circuit court correctly concluded, therefore, that the photo

line-up was not impermissibly suggestive.           Finally, even assuming

that the photo line-up was impermissibly suggestive, under the

totality of the circumstances, Rodrigues’s and Koki’s

identifications of Walton were sufficiently reliable because of

their familiarity with Walton and Elkshoulder from work.               See

DeCenso, 5 Haw. App. at 131, 681 P.2d at 577-78.             For the

foregoing reasons, the circuit court correctly denied Walton’s

motion to suppress.

C.     The circuit court properly instructed the jury

             Walton argues that the circuit court erred in

instructing the jury because the instructions failed to

distinguish between liability as a principal and liability as an

accomplice.     Specifically, Walton asserts that “the words ‘as a

principal’ should [have been] included in all substantive offense

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instructions, and the instruction that the accomplice must have

the specific intent or conscious object to commit the underlying

crime.”   Walton argues, therefore, that the instructions were

“prejudicially insufficient, erroneous, inconsistent, or

misleading.”

           It is the circuit court’s duty and ultimate

responsibility to ensure that the jury was properly instructed on

issues of criminal liability.       State v. Kikuta, 125 Hawai#i 78,

90, 253 P.3d 639, 65 1 (2011).
           When jury instructions, or the omission thereof, are
           at issue on appeal, the standard of review is whether,
           when read and considered as a whole, the instructions
           given are prejudicially insufficient, erroneous,
           inconsistent, or misleading. Erroneous instructions
           are presumptively harmful and are a ground for
           reversal unless it affirmatively appears from the
           record as a whole that the error was not prejudicial.

Kobashigawa v. Silva, 129 Hawai#i 313, 320, 300 P.3d 579, 586

(2013).

           Under Hawai#i law, a person is “guilty of an offense if

it is committed by his own conduct or by the conduct of another

person for which he is legally accountable, or both.”               HRS § 702-

221(1).   A person is “legally accountable” for the conduct of

another person when:
           (a) Acting with the state of mind that is sufficient
           for the commission of the offense, he causes an
           innocent or irresponsible person to engage in such
           conduct; or
           (b) He is made accountable for the conduct of such
           other person by this Code or by the law defining the
           offense; or
           (c) He is an accomplice of such other person in the
           commission of the offense.

HRS § 702-221(2).

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           A person is an accomplice of another person in the

commission of an offense if:
           (1) With the intention of promoting or facilitating
           the commission of the offense, the person:
           (a) Solicits the other person to commit it; or
           (b) Aids or agrees or attempts to aid the other person
           in planning or committing it; or
           (c) Having a legal duty to prevent the commission of
           the offense, fails to make reasonable effort so to do;
           or
           (2) The person’s conduct is expressly declared by law
           to establish the person’s complicity.

HRS § 702-222 (emphasis added).

           Here, the circuit court instructed the jury with

respect to accomplice liability as follows:
                 A defendant charged with committing an offense
           may be guilty because he is an accomplice of another
           person in the commission of the offense. The
           prosecution must prove accomplice liability beyond a
           reasonable doubt.

                 A person is an accomplice of another in the
           commission of an offense if:
                 1. With the intent to promote or facilitate the
           commission of the offense he
                 a. solicits the other person to commit it; or
                 b. aids or agrees or attempts to aid the other
           person in the planning or commission of the offense.

                 Mere presence at the scene . . . of an offense
           or knowledge that an offense is being committed,
           without more, does not make a person an accomplice to
           the offense. However, if a person plans or
           participates in the commission of an offense with the
           intent to promote or facilitate the offense, he is an
           accomplice to the commission of the offense.

                 A person is not guilty of an offense unless the
           State proves beyond a reasonable doubt that the person
           acted with the required states of mind, as these
           instructions specify, with respect to each element of
           the offense. The instruction for the offense charged
           specifies the states of mind required to be proved.

           The circuit court also instructed the jury on the

charged offenses, the lesser included offenses, and the states of

mind associated with each of those offenses.          Accordingly, the


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circuit court’s instructions to the jury accurately represented

the relevant law.

           Nevertheless, Walton argues that the words “‘as a

principal’ should [have been] included in all substantive offense

instructions.”    That argument is unfounded.        As the commentary on

HRS § 702-221(1) states, “[d]istinctions between principals and

accessories are dispensed with and a defendant may be convicted

directly of an offense committed by another for whose conduct the

defendant is accountable.”      See State v. Fukusaku, 85 Hawai#i

462, 489, 946 P.2d 32, 59 (1997) (same).

           Walton’s argument that the circuit court should have

instructed the jury that “the accomplice must have the specific

intent or conscious object to commit the underlying crime” is

similarly without merit, since the circuit court’s instructions

accurately stated the relevant law.        The circuit court instructed

the jury that “[a] defendant charged with committing an offense

may be guilty because he is an accomplice of another person in

the commission of the offense.”       See HRS § 702-221(1) (“A person

is guilty of an offense if it is committed by his own conduct or

by the conduct of another person for which he is legally

accountable, or both.”); HRS § 702-221(2) (“A person is legally

accountable for the conduct of another person when . . . he is an

accomplice of such other person in the commission of the

offense.”).   The circuit court further instructed the jury that:



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             A person is an accomplice of another in the commission
             of an offense if:
                   1. With the intent to promote or facilitate the
             commission of the offense he
                   a. solicits the other person to commit it; or
                   b. aids or agrees or attempts to aid the other
             person in the planning or commission of the offense.

             This instruction accurately states the law under HRS

§ 702-222.     No further instruction, therefore, was required, and

the ICA correctly concluded that the circuit court’s instructions

were not erroneous, misleading, or prejudicially insufficient.

D.     The circuit court correctly denied Walton’s motion for
       judgment of acquittal since substantial evidence supported
       Walton’s conviction

             Finally, Walton argues that the circuit court erred in

denying his motion for judgment of acquittal, and that the

evidence was insufficient to support his conviction.              Walton’s

arguments in this regard are meritless.

             “The standard to be applied by the trial court in

ruling upon a motion for a judgment of acquittal is whether, upon

the evidence viewed in the light most favorable to the

prosecution and in full recognition of the province of the [trier

of fact], a reasonable mind might fairly conclude guilt beyond a

reasonable doubt.”       Keawe, 107 Hawai#i at 4, 108 P.3d at 307.

This court employs the same standard of review in reviewing a

motion for a judgment of acquittal.          Id.

             In reviewing the sufficiency of the evidence supporting

a conviction on appeal, the evidence adduced at trial must be

considered in the strongest light for the prosecution.                State v.


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Bailey, 126 Hawai#i 383, 398, 271 P.3d 1142, 1157 (2012).              “The

test on appeal is not whether guilt is established beyond a

reasonable doubt, but whether there was substantial evidence to

support the conclusion of the trier of fact.”          Id. at 399, 271

P.3d at 1158 (citation omitted).        “‘Substantial evidence’ as to

every material element of the offense charged is credible

evidence which is of sufficient quality and probative value to

enable a person of reasonable caution to support a conclusion.”

Id. (quotation marks and citation omitted).

           Based on the statutory elements of the offense of

attempted murder in the second degree, the State was required to

establish beyond a reasonable doubt that Walton intentionally

engaged in conduct which, under the circumstances as Walton

believed them to be, constituted a substantial step in a course

of conduct intended or known by Walton to cause the death of CW.

See HRS §§ 705-500 and 707-701.5; State v. Kekona, 120 Hawai#i

420, 443, 209 P.3d 1234, 1257 (App. 2009).

           At trial, CW testified that, after his neck was

initially cut, Walton and Elkshoulder pinned him down.            CW

further testified that, as the two men were holding him down, he

saw a hand holding a knife start stabbing him.

           CW also identified the two men depicted in the

surveillance photos as the men he had picked up and who later

attacked him.    Detective Ogawa similarly testified that CW had

identified the two men depicted in the photograph as the two men

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that had attacked him.      And Rodrigues and Laumauna each

identified the men in the photograph as Elkshoulder and Walton.

           Finally, Dr. Yost testified that CW suffered two stab

wounds to his neck, lacerations on his right forearm and left

hand, and a puncture wound on his right hand.          Dr. Yost further

testified that one of CW’s wounds could have caused death if it

had gone untreated.

           Viewing this evidence in the light most favorable to

the State, a reasonable mind might fairly conclude Walton’s guilt

beyond a reasonable doubt.      The aforementioned testimony placed

Walton in CW’s taxi, and, at the very least, supports the

conclusion that Walton held CW down while he was stabbed.             The

circuit court, therefore, correctly denied Walton’s motion for

judgment of acquittal, and Walton’s conviction was supported by

substantial evidence.
                             IV.   Conclusion

           For the foregoing reasons, we vacate the ICA’s June 21,

2013 judgment, and the circuit court’s August 10, 2011 judgment

of conviction and sentence, and remand this case to the circuit

court for a new trial.

Richard S. Kawana                         /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent                            /s/ Simeon R. Acoba, Jr.

                                          /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

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PART II:   MOTION TO SUPPRESS, OPINION OF THE COURT BY ACOBA, J.,
              WITH WHOM McKENNA AND POLLACK, J., JOIN

           Article 1, section 7 of the Hawai#i Constitution16

protects all information in which individuals have a legitimate

expectation of privacy.      Accordingly, the bare assertion that

information was disclosed to a third party does not place such

information outside the parameters of article 1, section 7.

Rather, the protection afforded to information disclosed to a

third party must be determined by examining whether an individual

reasonably expected such information to remain private as to

others and whether society would view such expectation as

reasonable.   Thus, we must respectfully disagree with the holding

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

section 7 “does not apply to basic information revealed to a

third party, ‘even if the information is revealed on the

assumption that it will be used only for a limited purpose and

the confidence placed in the third party will not be betrayed.’”

State v. Walton, No. CAAP-11-0000667, 2013 WL 2190159, at *5

(App. May 21, 2013) (mem.) (quoting United States v. Miller, 425

U.S. 435, 443 (1976)).      This rule is untenable in a technological


      16
           Article 1, section 7 of the Hawai#i Constitution provides as
follows:

           The right of the people to be secure in their persons,
           houses, papers and effects against unreasonable searches,
           seizures and invasions of privacy shall not be violated; and
           no warrants shall issue but upon probable cause, supported
           by oath or affirmation, and particularly describing the
           place to be searched and the persons or things to be seized
           or the communications sought to be intercepted.

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age where in the ordinary course of life, individuals will of

necessity have disclosed a boundless amount of information to

third parties.

                                     I.

                                     A.

           The search in the instant case involves a General

Nutrition Corporation (GNC) membership card located in a backpack

found at the scene of the crime.          To recount briefly, after

stabbing the complaining witness (CW), the assailants fled from

the scene, leaving behind a backpack.          Prior to searching the

backpack, police obtained a warrant to search the backpack and

any or all closed containers within the backpack for “[a]rticles

of personal property tending to establish the identity of the

person in control” of the backpack:

           You Are Commanded to Search:

           A.    A black and blue, nylon backpack . . . which was
                 recovered by Honolulu Police Department . . . officers
                 at 3291 Pinaoula Street . . . .
           B.    Any and all closed containers located within Item A,
                 as described above, capable of concealing the
                 whereabouts of the below mentioned property:

           For the following property:

           Any and all evidence pertaining to a Robbery in the First
           Degree . . . including, but not limited to:

           1.    Unknown denominations of United States paper
                 currencies taken in the aforementioned Robbery in the
                 First Degree case;
           2.    One (1) unknown make knife, with an unknown blade
                 length, and grip;
           3.    Articles of personal property, tending to establish
                 the identity of [the] person in control of said
                 backpack and property, including, but not limited to:
                 personal identification, bills, bank account
                 statements, checks, photographs, receipts, agreements,
                 letters, lists, notes, personal telephone lists,


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                    photographs, books, and other information and
                    documents tending to establish ownership of said
                    backpack, and/or property[.]

[RA, Dkt. 4:106] (Emphasis added.)           Inside the backpack, the

police found the GNC card containing a membership number but no

other identifying information.          Police officers contacted GNC to

obtain the name17 associated with the number on the membership

card.      GNC informed police that the card belonged to

Petitioner/Defendant-Appellant John Walton (Walton).18

                                       B.

              Before trial, Walton filed a motion to suppress, inter

alia, the information recovered from GNC regarding the identity

of the card’s owner.        Walton maintained that the card constituted

a “paper [or] effect” under article 1, section 7 of the Hawai#i

Constitution and therefore the police were “required to obtain a

warrant to obtain the information represented by the registration

number of the gold card.”

              The Circuit Court of the First Circuit (the court19)

concluded that the “inquiry to the Ala Moana GNC store in order

to establish ownership of the GNC card . . . was within the realm

of the search warrant” because “[a] plain reading of the warrant



      17
            Walton’s motion to suppress also asserted that police obtained his
address from GNC, however, at trial police testified only that the inquiry to
GNC revealed Walton’s name.
      18
            It appears that no other evidence introduced at trial was the
fruit of the search. In his Application, Walton does not identify any
specific items introduced at trial that was a fruit of the search.
      19
              The Honorable Collette Y. Garabaldi presided.

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and its specificity with respect to the contents and purposes

including establishing the identification of the owner of the

backpack” showed that the search was permissible.            At trial,

Walton was subsequently convicted of attempted murder in the

second degree.20

                                     II.

            On appeal to the ICA, Walton again challenged the

inquiry to GNC regarding the ownership of the card as

unconstitutional.     Walton again argued that police were required

to obtain a search warrant to “learn the identity of the owner of

the card by using the serial number on it.”           The ICA did not

discuss the court’s conclusion that the inquiry to GNC was

“within the realm of the search warrant.”          Instead, the ICA

determined that this search was not prohibited by article 1,

section 7 of the Hawai#i Constitution because, inter alia, Walton

“voluntarily disclosed [his name] to GNC as part of a business

transaction.”     Walton, 2013 WL 2190159, at *5.        In reaching this

conclusion, the ICA relied on Miller and this court’s decision in

State v. Klattenhoff, 71 Haw. 598, 606, 801 P.2d 548, 552 (1990).


      20
            At trial, Walton’s co-defendant Courage Elkshoulder introduced a
recording of a phone conversation where Walton allegedly confessed to stabbing
CW. [Tr. 5/26/11, Dkt. 35:15] Elkshoulder testified that he spoke to his
attorney prior to recording the conversation. [Tr. 5/24/11, Dkt. 33:106]
However, based on the attorney-client privilege, the court refused to allow
Walton to cross-examine Elkshoulder or to examine Elkshoulder’s attorney.
[Tr. 5/26/11, Dkt. 35:8] Inasmuch as on remand Elkshoulder will not be
Walton’s co-defendant, it is not clear that the recorded conversation will be
introduced into evidence. However, should the conversation be introduced,
limitations on Walton’s examination of Elkshoulder or his attorney would
present serious constitutional issues. See State v. Peseti, 101 Hawai#i 172,
182, 65 P.3d 119, 129 (2003).

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           In Miller, in response to subpoenas,21 the presidents

of two different banks produced the defendant’s “records of

accounts,” including “checks, deposit slips, [] financial

statements, and [] monthly statements.”         425 U.S. at 438.      The

defendant challenged the subpoenas as invalid under the Fourth

Amendment.    Id. at 439.

           However, the Supreme Court rejected the defendant’s

contention that he had a legitimate expectation of privacy in the

bank records.    Id. at 442.     According to the Court, “[t]he checks

are not confidential communications but negotiable instruments to

be used in commercial transactions.”         Id.   Additionally, “[a]ll

of the documents obtained, including financial statements and

deposit slips, contain only information voluntarily conveyed to

the banks and exposed to their employees in the ordinary course

of business.”    Id.   The information was not protected by the

United States Constitution because “the Fourth Amendment does not

prohibit the obtaining of information revealed to a third party

and conveyed by him [or her] to government authorities, even if

the information is revealed on the assumption that it will be

used only for a limited purpose and the confidence placed in the

third party will not be betrayed.”         Id. at 443.


     21
            The Fifth Circuit had concluded that the subpoenas did not
“constitute adequate legal process” under the Fourth Amendment. Miller, 425
U.S. at 439 (internal quotation marks omitted). The validity of the subpoenas
was not discussed either by the majority or the dissents in light of the
majority’s conclusion that the Fourth Amendment did not apply. See id. at 446
n.9.


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           However, the dissenting opinion in Miller referred to a

California Supreme Court opinion where “‘[r]epresentatives of

several banks testified . . . that information in their

possession regarding a customer’s account is deemed by them to be

confidential.”    Miller, 425 U.S. at 450 (Brennan, J., dissenting)

(quoting Burrows v. Superior Court, 529 P.2d 590, 593 (1974)).

In that situation, “‘[a] bank customer’s reasonable expectation

is that absent compulsion by legal process, the matters he

reveals to the bank will be utilized by the bank only for

internal banking purposes.’”       Id. (quoting Burrows, 529 P.2d at

593).   Additionally, “‘the disclosure by individuals or business

firms of their financial affairs to a bank is not entirely

volitional, since it is impossible to participate in the economic

life of contemporary society without maintaining a bank account.”

Id. at 451 (quoting Burrows, 529 P.2d at 596).

           Finally, “[f]inancial transactions can reveal much

about a person’s activities, associations, and beliefs.”              Id. at

452 (quoting Burrows, 529 P.2d at 595).         “‘To permit a police

officer access to these records without any judicial control as

to relevancy or other traditional requirements of the legal

process, and to allow the evidence to be used in any subsequent

criminal prosecution against a defendant, opens the door to a

vast and unlimited range of very real abuses of police power.’”

Id. at 451 (quoting Burrows, 529 P.2d at 596).           Thus, Justice



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Brennan would have held that the bank records were entitled to

Fourth Amendment protection.22       Id. at 454.

            Similarly, in Smith v. Maryland, 442 U.S. 735 (1979),

the police, acting without a warrant, installed a “pen register”

on the defendant’s phone.       Id. at 737.     The pen register revealed

to law enforcement the numbers dialed by the defendant’s phone.

Smith, 442 U.S. at 741.       The Supreme Court rejected the

defendant’s claim that the warrantless installation of the pen

register constituted an illegal search, because “[t]his Court

consistently has held that a person has no legitimate expectation

of privacy in the information he voluntarily turns over to third

parties.”    Id. at 743-44.     The Court explained that when the

defendant “used his phone, [he] voluntarily conveyed numerical

information to his telephone company and ‘exposed’ that

information to its equipment in the ordinary course of business.”




      22
            Justice Brennan also added that the California Supreme Court
decision in Burrows “strikingly illustrates the emerging trend among high
state courts of relying upon state constitutional protections pervading
counterpart provisions of the United States Constitution, but increasingly
being ignored by decisions of this Court.” Miller, 425 U.S. at 454-55
(Brennan, J., dissenting).

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Id. at 744.      Thus, the court held that the Fourth Amendment did

not protect the information recovered from the pen register.                   Id.

              But, Justice Stewart’s dissenting opinion argued that

“it is simply not enough to say . . . that there is no legitimate

expectation or privacy in the numbers dialed [on a phone] because

the caller assumes the risk that the telephone company will

disclose them to the police.”          Id. at 747 (Stewart, J.,

dissenting).      According to Justice Stewart, no telephone user

“would be happy to have broadcast to the world a list of the

local or long distance numbers they have called,” because “such a

list . . . easily could reveal the identities of the persons and

the places called, and thus reveal the most intimate details of a

person’s life.”       Id. at 748.     Therefore, the “information

obtained by pen register surveillance is information in which the

telephone subscriber has a legitimate expectation of privacy.”

Id.

              Additionally, Justice Marshall’s dissenting opinion

explained that “constitutional protections are not abrogated

whenever a person apprises another of facts valuable in criminal

investigations,” because individuals may disclose information to

a third party with the expectation that it will not be disclosed

further.      Id. at 748-49 (Marshall, J., dissenting) (citations

omitted).      Justice Marshall also noted that “unless a person is




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prepared to forgo use” of a telephone, which “for many has become

a personal or professional necessity, he cannot help but accept

the risk of surveillance.”         Smith, 442 U.S. at 750 (Marshall, J.,

dissenting) (citation omitted).          Thus, “[i]t is idle to speak of

assuming risks in contexts where, as a practical matter,

individuals have no realistic alternative.”              Id.

              Justice Marshall explained that, “[m]ore fundamentally,

to make risk analysis dispositive in assessing the reasonableness

of privacy expectations would allow the government to define the

scope of Fourth Amendment protections.”            Id.    Thus, “law

enforcement officials, simply by announcing their intent to

monitor the content of random samples of first-class mail or

private phone conversations, could put the public on notice of

the risks they would thereafter assume in such communications.”

Id.

              Justice Marshall reasoned that “whether privacy

expectations are legitimate . . . depends not on the risks an

individual can be presumed to accept when imparting information

to third parties, but on the risks he should be forced to assume

in a free and open society.”          Id.    For “those extensive

intrusions that significantly jeopardize individuals’ sense of

security, more than self-restraint by law enforcement officials

is required.”       Id. at 751 (internal quotations marks, brackets,




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and punctuation omitted).        In light of the “vital role telephonic

communication plays in our personal and professional

relationships,” and “the First and Fourth Amendment interests

implicated by unfettered official surveillance,” Justice Marshall

concluded that “[t]he use of pen registers . . . constitutes such

an extensive intrusion.”        Id.   Accordingly, Justice Marshall

“would required law enforcement officials to obtain a warrant

before they enlist telephone companies to secure information

otherwise beyond the government’s reach.”           Id. at 752.

             In State v. Rothman, 70 Haw. 546, 779 P.2d 1 (1989),

this court declined to adopt the Supreme Court’s holding in

Smith.     Rothman held that under article 1, section 6 of the

Hawai#i Constitution,23 “persons using telephones in the State of

Hawai#i have a reasonable expectation of privacy, with respect to

the telephone numbers they call on their private lines[.]”                  70

Haw. at 556, 779 P.2d at 7.         However, in Klattenhoff, decided in

1990, this court adopted Miller.          Klattenhoff, 71 Haw. at 606,

801 P.2d at 548.      This court stated that defendants had no

reasonable expectation of privacy in bank records, inasmuch as

“[t]he records are owned by the banks because they are business



      23
             Article 1, section 6 of the Hawai#i Constitution provides as
follows:
             The right of the people to privacy is recognized and shall
             not be infringed without the showing of a compelling state
             interest. The legislature shall take affirmative steps to
             implement this right.

(Emphasis added.)

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records, they are not the private papers of the account holder.”

Id.     “These records contain information voluntarily conveyed to

the banks and exposed to their employees in the ordinary course

of business.”       Id.   “Furthermore, ‘[t]he depositor takes the

risk, in revealing his affairs to another, that the information

will be conveyed to the government.’”            Id. (quoting Miller, 425

U.S. at 443).       Therefore, this court held that “there is no

reasonable expectation of privacy in bank records.”               Id.

                                        B.

              More recently, it has been explained that the approach

used in Miller and Smith, and previously adopted by this court in

Klattenhoff, “is ill suited to the digital age, in which people

reveal a great deal of information about themselves to third

parties in the course of carrying out mundane tasks.”               United

States v. Jones, 132 S. Ct. 945, 957 (Sotomayor, J., concurring).

As declared by Justice Sotomayor, “[p]eople disclose the phone

numbers that they dial or text to their cellular providers; the

URLs that they visit and the e-mail addresses with which they

correspond to their Internet service providers; and the books,

groceries, and medications they purchase to online retailers.”

Id.

              In Jones, the use of a GPS attached to the underside of

a vehicle to gather 2000 pages of information about the




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defendant24 led Justice Sotomayor to suggest that “some unique

aspects of GPS surveillance . . . will require particular

attention” inasmuch as “GPS monitoring generates a precise,

comprehensive record of a person’s public movements that reflects

a wealth of detail about her familial, political, professional,

religious, and sexual associations.”         Id. at 955.    Moreover,

“because GPS monitoring is cheap in comparison to conventional

surveillance techniques, and by design, proceeds surreptitiously,

it evades the ordinary checks that constrain law enforcement

practices: limited police resources and community hostility.”

Id. (internal quotation marks omitted).         In light of the immense

amount of information that could be unprotected under the

approach of Miller and Smith, Justice Sotomayor concluded that

“it may be necessary to reconsider the premise that an individual

has no reasonable expectation of privacy in information

voluntarily disclosed to third parties.”         Id.

                                    III.

           In assessing U.S. Supreme Court opinions construing the

federal constitution, Justice Brennan suggested that “the

decisions of the Court are not, and should not be, dispositive of

questions regarding rights guaranteed by counterpart provisions



      24
            The police obtained a warrant commanding them to install the GPS
locator within ten days and in the District of Columbia. Jones, 132 S. Ct. at
947 (majority opinion). However, the police installed the GPS locator on the
eleventh day, in Maryland. Id. Thus, the Government conceded that the
warrant did not extend to the installation of the GPS locator. Id. at 947
n.1.

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of state law.”    William J. Brennan, State Constitutions and the

Protection of Individual Rights, 90 Harv. L. Rev. 489, 502

(1977).   Rather, “such decisions are not mechanically applicable

to state law issues, and state court judges and the members of

the bar seriously err if they so treat them.”          Id.   In that

regard, he advised that “although in the past it might have been

safe for counsel to raise only federal constitutional issues in

state courts, plainly it would be most unwise these days not also

to raise the state constitutional questions.”          Id.   Justice

Brennan explained that “state court judges, and also

practitioners, do well to scrutinize constitutional decisions by

federal courts, for only if they are found to be logically

persuasive and well-reasoned, paying due regard to precedent and

the policies underlying specific constitutional guarantees, may

they properly claim persuasive weight as guideposts when

interpreting counterpart state guarantees.”          Id.

           The hazard in applying Miller, Smith, and Klattenhoff

in the modern age is the fundamental incompatibility of those

cases with the basic precepts of our jurisprudence.            It is beyond

question that “in the absence of a warrant or exigent

circumstances, it is unreasonable for the government to search an

area where a person has an expectation of privacy.”            State v.




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Cuntapay, 104 Hawai#i 109, 117, 85 P.3d 634, 642 (2004).             In

determining “when a person’s expectation of privacy may be deemed

reasonable,” this court considers, first, if a defendant

“exhibit[ed] an actual, subjective expectation of privacy” in the

area searched, and second if “that expectation [is] one that

society would recognize as objectively reasonable.”25           State v.

Bonnell, 75 Haw. 124, 139, 856 P.2d 1265, 1273 (1993).

            The rule that an individual has no legitimate

expectation of privacy in any information shared with a third

party cannot be justified in all situations.          As explained by

Justice Marshall in Smith, “[p]rivacy is not a discrete

commodity, possessed absolutely or not at all.           Those who

disclose certain facts to a bank or phone company for a limited

business purpose need not assume that this information will be

released to other persons for other purposes.”           Smith, 442 U.S.

at 749 (Marshall, J., dissenting) (emphasis added) (citations

omitted).    Hence, Justice Sotomayor stated that it cannot be said

that “all information voluntarily disclosed to some member of the

public for a limited purpose is, for that reason alone,




      25
            The exquisite and concise definition of privacy was set forth in
Katz v. United States, 389 U.S. 347 (1967), by Justice Harlan in concurrence:
“My understanding of the rule that has emerged from prior decisions is that
there is a twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation by one
that society is prepared to recognize as ‘reasonable[,]’” thus identifying a
subjective and an objective component of the privacy formulation. 389 U.S. at
361 (Harlan, J., concurring).

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disentitled to Fourth Amendment protection.”          Jones, 132 S. Ct.

at 957 (Sotomayor, J., concurring).

           For example, although individuals share the addresses

of each Web site they visit with their internet service provider,

it is unlikely that “people would accept without complaint the

warrantless disclosure to the Government a list [containing]

every Web site they had visited in the last week, month, or

year.”   Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).

Thus, even when information is disclosed to a third party,

individuals may retain an expectation that such information will

not be disclosed to others for purposes other than that for which

the information had already been revealed.

           Moreover, Miller, Smith, and Klattenhoff incorrectly

rely on the principle that individuals who convey information to

a third party have assumed the risk of that party disclosing the

information to the government.       In our times individuals may have

no reasonable alternative, Smith, 442 U.S. at 750 (Marshall, J.,

dissenting), but to disclose confidential information to obtain a

necessary service.     Jones, 132 S. Ct. at 957 (Sotomayor, J.,

concurring).

           The decisions in Miller and Smith, and as adopted by

this court in Klattenhoff, are inconsistent with the recognition

that article 1, section 7 of the Hawai#i Constitution protects

all areas in which an individual possesses a legitimate



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expectation of privacy.26      Even when information is shared with a

third party, an individual may retain a legitimate expectation

that such information will not be further disseminated for

purposes other than those for which they were disclosed in the

first place.      Jones, 132 S. Ct. at 957 (Sotomayor, J.,

concurring); Smith, 442 U.S. at 749 (Marshall, J., dissenting);

Miller, 425 U.S. at 449 (Brennan, J., dissenting).            Thus, it

cannot be said that information disclosed to another person

automatically loses the protection it would otherwise receive

under the Hawai#i Constitution.       Cf. Jones, 132 S. Ct. at 957

(Sotomayor, J., concurring).        As Justice Brennan maintained,

“the very premise of the cases that foreclose federal remedies

constitutes a clear call to state courts to step into the breach.

. . .      With federal scrutiny [of individual rights] diminished,




      26
            Relatedly, in State v. Detroy, 102 Hawai#i 13, 72 P.2d 485 (2003),
this court relied in part on the U.S. Supreme Court’s conclusion in Kyllo v.
United States, 533 U.S. 27 (2003), that thermal imagers were “not in general
public use,” 533 U.S. at 34, in concluding that the use of thermal imagery was
a search that required a warrant. Detroy, 102 Hawai#i at 21, 72 P.3d at 493.
Unlike the U.S. Supreme Court, this court noted that “the wide use of a device
such as a thermal imager” would not “be determinative of whether an
individual’s right to privacy is forfeited,” but that “it may be a factor.”
Id. at 22 n.11, 72 P.3d at 494 n.11. However, individuals may retain a
reasonable expectation that some searches will not be reasonable even if a
technological device is in general public use. Thus, this court’s reliance on
the fact that thermal imagers were not widely available in Detroy would
warrant reconsideration.

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state courts must respond by increasing their own.”27            Brennan,

State Constitutions, 90 Harv. L. Rev. at 503.

            Respectfully, based on the forgoing, the ICA erred in

concluding that Walton lost all constitutional protection in his

name simply because that information had been previously

disclosed to a third party.       Walton, 2013 WL 2190159, at *5.

Rather, under article 1, section 7 of the Hawai#i Constitution,

it must be determined whether Walton held a legitimate

expectation that such information would not be shared with

others.   Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring);

Smith, 442 U.S. at 749 (Marshall, J., dissenting); Miller, 425

U.S. at 449 (Brennan, J., dissenting).          In making such a

determination, this court should decide whether the individual

considered such information to be private, see Miller, 425 U.S.

at 449 (Brennan, J., dissenting), whether that information

reveals “intimate details of a person’s life,” Smith, 442 U.S. at

748 (Stewart, J., dissenting), whether the individual released


      27
            Soon and inevitably to come are overflights by drones –- will they
be too numerous in number to sustain a claim of any expectation of privacy?
See Jonathan Olivito, Note, Beyond the Fourth Amendment: Limiting Drone
Surveillance Through the Constitutional Right to Informational Privacy, 74
Ohio St. L.J. 669, 687 (2013). Contained within a person’s luggage is not
only its contents but an expectation of privacy. Yet, it is permissible for
the police to legally ascertain the contents of a suitcase through a sniff by
trained dogs of the air around the suitcase, because there is said to be no
expectation of privacy in the air containing the odor of marijuana. United
States v. Place, 462 U.S.696, 707 (1983). However, the use of a thermal
imager in a marijuana-growing investigation to measure the heat emanating from
the walls of a house, presumably in the air that might surround a suitcase, is
said to violate one’s privacy. Kyllo, 533 U.S. at 37. But a swab of one’s
inner cheek to search for “DNA”, is permissible, even if not connected to any
crime because on balance the intrusion on a person is not discomforting and
identification of an arrestee is a government interest that weighs more
heavily, according to Maryland v. King, 133 S. Ct. 1 (2012).

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the information to a third party to obtain a necessary service,

Smith, 442 U.S. at 750 (Marshall, J., dissenting), whether there

was no realistic alternative but to disclose the information,

id., and the extent to which disclosing such information would

jeopardize an individual’s sense of security.28           Id.   If such

information is protected by article 1, section 7 of the Hawai#i

Constitution, the State is not precluded from seeking to

introduce such evidence at trial.          Rather, the police simply must

obtain a warrant before conducting such searches, thus subjecting

the issue to the scrutiny of a neutral disinterested magistrate

before a search is conducted.        Cf. Katz, 389 U.S. at 357

(“Bypassing a neutral predetermination of the scope of a search

leaves individuals secure from Fourth Amendment violations only

in the discretion of the police.” (internal quotation marks and

citation omitted)).

                                     IV.


      28
            This court, “[a]s the ultimate judicial tribunal with final,
unreviewable authority to interpret and enforce the Hawai#i Constitution, [is]
free to give broader protection than that given by the federal constitution.”
Detroy, 102 Hawai#i at 22, 72 P.3d at 494 (citations and internal quotation
marks omitted). I would therefore conclude on independent state
constitutional grounds, that information disclosed to third parties may be
entitled to protection under article 1, section 7 of the Hawai#i Constitution.
            It must be noted that “state courts are absolutely free to
interpret state constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United States
Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995). “If a state court
chooses merely to rely on federal precedents as it would on the precedents of
all other jurisdictions, then it need only make clear by a plain statement in
its judgment or opinion that the federal cases are being used only for the
purpose of guidance, and do not themselves compel the result that the court
has reached.” Michigan v. Long, 463 U.S. 1032, 1041 (1983). In consonance
with Long, federal cases are cited in this opinion only for the purpose of
guidance. The Hawai#i Constitution, as opposed to federal law, compels the
result reached herein.

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            Rapid changes in technology have altered our

lifestyles, creating a dissonance between a mechanical

application of the expectation of privacy test and its core

meaning.    The last fifty years have witnessed a significant

period of change in the law pertaining to criminal procedure.

United States Supreme Court and Hawai#i Supreme Court decisions

have diverged29 in the area of constitutional protections against

unreasonable searches and seizures.          But as noted, the U.S.

Supreme Court itself recognized, “state courts are absolutely

free to interpret state constitutional provisions to accord

greater protection to individual rights than do similar

provisions of the United States Constitution.”            Evans, 514 U.S.

at 8.


      29
             The most significant difference between the Federal and Hawai#i
decisions, to this point at least, is the Supreme Court’s jettison of two of
the three purposes of the exclusionary rule – protection of privacy and
judicial integrity. The singular focus in United States v. Leon, 468 U.S.
928, 928-929 (1984), on deterring police misconduct, see id. at 910, upended
the tripartite formulation established in Mapp v. Ohio, 367 U.S. 643, 659-60
(1961). The result seemingly reads out of the Fourth Amendment the express
requirement of probable cause for the issuance of warrants. Under Leon,
insofar as a warrant seems valid on its face and the police thus, in “good
faith,” execute it -- the evidence obtained is admissible without regard to
whether the warrant is, as a matter of fact, supported by probable cause or
not. 468 U.S. at 926. On this development, Justice Brennan said, “in case
after case, I have witnessed the Court's gradual but determined strangulation
of the [exclusionary] rule.” Leon, 468 U.S. at 928-929 (Brennan, J.,
dissenting).
             Under the Hawai#i Constitution it has been held that “the three
purposes underlying our exclusionary rule” are “judicial integrity, [the]
protection of individual privacy, and [the] deterrence of illegal police
misconduct.” State v. Torres, 125 Hawai#i 382, 394, 262 P.3d 1006, 1019
(2011); see also State v. Lopez, 78 Hawai#i 433, 446, 86 P.2d 889, 902 (1995).
See State v. Matsunaga, 82 Hawai#i 162, 168-69, 920 P.2d 376, 382-83 (App.
1996) (the good faith exception to the warrant requirement is rejected under
the Hawai#i Constitution); compare State v. McKnight, --- Hawai#i ---, --- P.3d
---, 2013 WL 680774 at *17 (Dec. 31, 2013) (holding that an error by the
issuing judge resulting in conflicting dates on the face of the warrant did
not render a search warrant invalid).

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           The ascent of state supreme courts’ independence in

interpreting their own constitutions to afford more or broader

rights to individuals than the national minimum standard

established by the Supreme Court, so long as these decisions do

not violate the federal constitution or statutes, reflects a “New

Federalism.”   Brennan, State Constitutions, 90 Harv. L. Rev. at

501.   In this context, the co-existence of two constitutions –

the federal constitution and the state constitution – in one

jurisdiction can result in contrasting outcomes in federal and

state court, although arising out of the same or similar factual

scenarios, with the concomitant effect on the duties and

authority of law enforcement agencies affected by these

decisions.   See Torres, 125 Hawai#i at 397, 262 P.3d at 1021.

           The modification or reformulation of a privacy test is

possible, thus, at the state level.        It would seem beyond purview

that a reasonable person would not expect that disclosure to

third parties would, ipso facto, permit government scrutiny or

intrusion into otherwise protected privacy zones without at least

some safeguards inhering in the checks among the separate

branches of government.      An expectation of privacy, even though

extended to matters exposed to third persons, would be viewed as

reasonable by society, where such exposure is inevitable and

inescapable in the conduct of the necessary affairs of life.                The

alternative is to countenance the inexorable diminishment of

personal privacy and the substantial risk of privacy zones

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disappearing altogether.      Cf. Griswold v. Connecticut, 381 U.S.

479, 484 (1965) (holding that “specific guarantees in the Bill of

Rights have penumbras, formed by emanations from those guarantees

that help give them life and substance,” and that “[v]arious

[constitutional] guarantees create zones of privacy,” such as the

Fourth Amendment’s “protection against all governmental invasions

of the sanctity of a man’s home and the privacies of life”

(internal quotation marks omitted)).

           The contours of an expectation of privacy in the

context of disclosure to third persons would be shaped on a case-

by-case basis as guided by the core values of personal dignity

and security grounded in the privacy right.          Considerations of

purpose, history, logic, and precedent -- accepted tools of

constitutional construction -- would be pertinent.           As explained

by Justice Brandeis, “[i]t is one of the happy incidents of the

federal system that a single courageous state may, if its

citizens choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the country.”

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting).

                                     V.

           The majority’s belief that there is no expectation of

privacy in a name, under the facts, may be too broad a construct.

One’s identity is a gateway to information collected by third

persons -- some collection occurring even without a person’s

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knowledge; only context can determine whether the disclosure of

one's name would be the key that unlocks the door to a protected

zone of privacy.     For example, in Hiibel v. Sixth Judicial Dist.

Court of Nevada, Humbolt County, 542 U.S. 177 (2004), Justice

Stevens rejected the Supreme Court’s conclusion that the Fifth

Amendment right against self incrimination did not extend to an

individual’s name.30     See 542 U.S. at 195 (Stevens, J.,

dissenting).    Justice Stevens believed that it was “clear that

the disclosure of [the defendant’s] identity is protected” by the

Fifth Amendment because “[a] person’s identity obviously bears

informational and incriminating worth, ‘even if the name itself

is not inculpatory.’”      Id. at 196 (internal brackets omitted)

(quoting United States v. Hubbell, 530 U.S. 27, 38 (2000)).

Additionally, “[a] name can provide the key to a broad array of

information about the person, particularly in the hands of a

police officer with access to a range of law enforcement

databases.”    Id.

            However, it is unnecessary to decide whether, under the

circumstances presented here, Walton possessed a legitimate

expectation of privacy in his name because the introduction of




      30
            In Hiibel, the defendant was arrested pursuant to a Nevada statute
requiring an individual detained by a police officer to identify himself or
herself to the officer. 542 U.S. at 181. The defendant argued, inter alia,
that the statute violated “the Fifth Amendment’s prohibition on compelled
self-incrimination.” Id. at 189.

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that evidence at trial was plainly harmless.31          In determining

whether an error is harmless, this court considers whether “there

is a reasonable possibility that error might have contributed to

conviction.”    State v. Machado, 109 Hawai#i 445, 452-53, 127 P.3d

941, 948-49 (2006) (citations and internal quotation marks

omitted).    In the instant case, the association of Walton’s name

with the GNC card served only to establish his presence at the

crime scene.    However, that fact was also established by a wealth

of other evidence presented at trial.32         Thus, the introduction

of the information obtained from the inquiry to GNC regarding the

ownership of the GNC card was harmless.




      31
            Additionally, by leaving the backpack and the GNC card   at the
scene Walton may have abandoned the card and thus relinquished any   expectation
of privacy he had in the card. Cf. State v. Kolia, 116 Hawai#i 29,   35-36, 169
P.3d 981, 987-88 (App. 2007) (holding that a defendant abandoned a   fanny pack
by throwing it away while fleeing from police).
      32
            A surveillance camera captured an image of Walton entering the
taxi where the stabbing occurred, and the taxi driver identified that image as
being one of the perpetrators. Subsequently, in response to a “Crime
Stoppers” tip, two of Walton’s co-workers identified him as the individual in
the picture. Most significantly, Walton’s co-defendant Elkshoulder, also
admitted that Walton was present at the scene of the crime. None of this
evidence was related to the inquiry to GNC, inasmuch as the Crime Stoppers tip
was circulated independently and Elkshoulder turned himself in.
            In light of the evidence connecting Walton to the crime scene, it
cannot be said that there is a reasonable possibility that the introduction of
the name connected to the GNC card contributed to Walton’s conviction.
Machado, 109 Hawai#i at 452-53, 127 P.3d at 948-49; see also Territory v.
Chang Tai Kun, 26 Haw. 133, 136 (Terr. 1921) (“[T]he only effect detrimental
to the defendant which this evidence could have had would be to show that
there had been gambling carried on at the premises in question and [] this
fact is so thoroughly proven by other evidence in the case that it could not
have affected the verdict and was therefore not prejudicial to the rights of
the defendant.” (emphasis added)).

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                                    VI.

           Based on the foregoing, the court’s September 7, 2011

order denying Walton’s motion to suppress his name as obtained

through the use of the GNC card is affirmed, but for the reasons

set forth herein.

                                     /s/ Simeon R. Acoba, Jr.

                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack




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