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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000550
                                                              30-JAN-2014
                                                              09:14 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---



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

                                    vs.

                         SHAUN L. CABINATAN,
                   Petitioner/Defendant-Appellant.



                             SCWC-11-0000550

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
         (CAAP-11-0000550; CR. NOS. 10-1-0904, 09-1-0854)

                            JANUARY 30, 2014

   RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ.; WITH ACOBA, J.,
CONCURRING AND DISSENTING SEPARATELY, WITH WHOM POLLACK, J., JOINS

            OPINION OF THE COURT BY RECKTENWALD, C.J.

           Shaun L. Cabinatan was convicted in the Circuit Court

of the First Circuit of Burglary in the First Degree and

Unauthorized Entry Into Motor Vehicle (UEMV) in the First Degree,

in relation to an incident on June 2, 2010, in which Cabinatan
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and co-defendant Kimo Moore allegedly participated in a burglary

of a Makakilo home and the unauthorized entry into a van at a

separate location.1

              According to the State, Moore entered Jennifer

Kincaid’s garage and Jeffrey Sampson’s van, while Cabinatan was

the “getaway driver.”        Kincaid was the only witness who

identified Cabinatan as the driver in the incidents.

Specifically, Kincaid identified Cabinatan and Moore in a field

show-up procedure conducted at a traffic stop shortly after she

reported the burglary to police.           Cabinatan and Moore, who were

handcuffed, were the only two suspects present at the field show-

up.     According to Kincaid, police informed her prior to the field

show-up that they had stopped a vehicle that matched her

description and contained items she described were stolen.

              At trial, Cabinatan maintained that Kincaid

misidentified him.        Cabinatan also presented testimony from a

witness indicating that Cabinatan was at her home at the time of

the offenses.

              Cabinatan requested specific jury instructions

regarding the reliability of identification testimony,

identification procedure, and field show-up identifications.                   The

circuit court denied Cabinatan’s request.            The jury found

Cabinatan guilty of Burglary in the First Degree and UEMV in the



        1
              The Honorable Edward H. Kubo, Jr., presided.

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First Degree.    Based on the foregoing convictions, the circuit

court found that Cabinatan violated the terms and conditions of

his probation in an unrelated 2009 case in which he was convicted

of Escape in the Second Degree, and thus revoked his probation in

that case.

           The Intermediate Court of Appeals affirmed Cabinatan’s

burglary and UEMV convictions and the circuit court’s probation

revocation order.    State v. Cabinatan, No. CAAP-11-0000550, 2012

WL 6720380, at *4 (Haw. App. Dec. 27, 2012).

           Cabinatan argues that his burglary and UEMV convictions

should be vacated because the circuit court abused its discretion

in refusing to provide specific jury instructions on eyewitness

identification.    Cabinatan argues that the circuit court’s order

revoking his probation based on the burglary and UEMV convictions

should therefore also be vacated.

           For the reasons set forth below, we hold that, under

the particular circumstances of this case, the circuit court

abused its discretion in refusing to give a specific instruction

on field show-up identifications.         Accordingly, we vacate the

ICA’s judgment on appeal, the circuit court’s Judgment of

Conviction and Sentence in Cr. No. 10-1-0904, and the circuit

court’s “Order of Resentencing; Revocation of Probation” in Cr.

No. 09-1-0854, and remand this case to the circuit court for

further proceedings consistent with this opinion.



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                               I.   Background

             The following factual background is taken from the

record on appeal.

A.     Cr. No. 09-1-0854:      Escape conviction

             On August 4, 2009, Cabinatan pleaded guilty to the

charge of Escape in the Second Degree in violation of HRS § 710-

1021 in Cr. No. 09-1-0854, and was sentenced to five years of

probation.     Included among the terms and conditions of

Cabinatan’s probation was the requirement that Cabinatan not

commit another federal or state crime during his probationary

term.

B.     Cr. No. 10-1-0904: Burglary and Unauthorized Entry into
       Motor Vehicle convictions

             On June 15, 2010, Cabinatan and Moore were charged in

Cr. No. 10-1-0904 with Burglary in the First Degree in violation

of HRS § 708-810(1)(c)2 (Count 1), UEMV in the First Degree in

violation of HRS § 708-836.53 (Count 2), Promoting a Dangerous

       2
             HRS § 708-810(1)(c) (1993) provides:

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

             . . . .

                   (c) The person recklessly disregards a risk that
             the building is the dwelling of another, and the
             building is such a dwelling.
       3
             HRS § 708-836.5 (Supp. 2010) provides, in relevant part:

             (1) A person commits the offense of unauthorized entry
                                                                 (continued...)

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Drug in the Third Degree in violation of HRS § 712-1243 (Count

3), and Unlawful Use of Drug Paraphernalia in violation of HRS

§ 329-43.5(a) (Count 4).      Moore entered a no contest plea to the

charges, and was convicted on all counts.

           During his opening statement at trial, the deputy

prosecuting attorney (DPA) stated, in relevant part, that Kincaid

saw a driver and passenger in a gray SUV across the street from

her house, later noticed that her bag in her garage was gone, and

called police.    The DPA stated that police pulled over an SUV

matching Kincaid’s description, and that during the police

investigation, “witnesses [were] brought down to identify

suspects in the case, or potential suspects in the case.”

           Defense counsel contended during his opening statement

that the evidence would show that the State “got the wrong

guy[.]”   Under the defense’s theory, a person named Tommy

committed the charged offenses with Moore.          According to the

defense, Moore then dropped off Tommy and picked up Cabinatan,

who was in the SUV when it was stopped by police.           Defense

counsel told the jury that Kincaid misidentified Cabinatan, and

described the show-up procedure in which Kincaid identified

Cabinatan as “inherently suggestive.”


     3
      (...continued)
           into motor vehicle in the first degree if the person
           intentionally or knowingly enters or remains
           unlawfully in a motor vehicle, without being invited,
           licensed, or otherwise authorized to enter or remain
           within the vehicle, with the intent to commit a crime
           against a person or against property rights.

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           During trial, the jury heard testimony from the

complaining witnesses and witnesses who participated in the field

show-up.   Sampson testified that on the morning of June 2, 2010,

he went into his garage in his Makakilo home and saw the driver’s

side door of his van open.      Sampson saw “a guy” look up at him

from behind the steering wheel.       When Sampson yelled at the

person, the person ran away.       Sampson chased the person, who

appeared to be holding Sampson’s CD case.         The person jumped into

the passenger side of a silver “small sized SUV type Hyundai[.]”

Sampson was able to get the license plate number, but was not

able to “get a good look” at the driver before the vehicle drove

away.

           Sampson called the police, who arrived within about

five minutes.    Sampson stated that “within the same ten minutes

when the police were there, they said that they had stopped a

vehicle, and that they had them . . . held up at the side of the

highway[.]”   Sampson stated that he went to the traffic stop and

saw “two guys sitting on the side of” the road.           Sampson

identified Moore as the person who was in his van.

           On cross-examination, Sampson stated that the incident

occurred “[v]ery close to 8:00” in the morning.           Sampson could

not recall whether, when police asked him to go to the location

where the SUV was stopped, the police said “anything about

suspects may or may not be there[.]”



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           Officer Kaleka Punahele Akana testified that he drove

Sampson to the traffic stop for the “field show-up[.]”            Officer

Akana testified that he followed standard procedure, including

telling Sampson “that they’re potential suspects,” to “[k]eep an

open mind,” and “identify them if they’re the people that [he]

saw that took part in the crime.”         Officer Akana stated that

Sampson identified Moore as the person he saw running from his

van, but did not identify Cabinatan.         Officer Akana also stated

that after Sampson identified Moore, Officer Akana investigated

further and “[r]ecovered a black CD case” from the silver SUV.

           During cross-examination, Officer Akana acknowledged

that his police report regarding the Sampson incident indicated

that the incident occurred at 7:50 a.m., and that police were

notified at 8:05 a.m.     Officer Akana testified that he was the

first officer to respond to Sampson’s house, and that he arrived

“maybe ten, maybe 15 minutes after the call came in” –- “maybe

around” 8:26 a.m.

           Officer Akana answered numerous questions about police

lineups and photographic arrays.        For example, Officer Akana

described police lineups as presenting eight to ten people to a

complainant for possible identification of the suspect and stated

that the reason for having eight to ten people in a lineup is “to

make it fair for the person that . . . we’re trying to positively

ID.”   Officer Akana explained that police also ensure a fair

process by using people who match the description of the suspect

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in the lineup.    Officer Akana also described field show-up

procedures, which he acknowledged do not have the same

“safeguards” as lineups and photographic arrays.

           The circuit court asked Officer Akana if “any of the

persons [were] handcuffed during this show-up,” and Officer Akana

stated that they were handcuffed behind their backs.            On recross-

examination, Officer Akana acknowledged that Sampson would have

seen that both men were handcuffed.

           Kincaid testified that at 8:05 a.m. on June 2, 2010,

she noticed a gray SUV with tinted windows parked across the

street facing the wrong way on the street, which struck her as

“kind of odd[.]” Kincaid stated that she looked at the driver but

didn’t recognize him.     Kincaid stated that she saw the driver

through the open passenger window from her garage, about 25 to 30

feet away.   Nothing blocked her view of the driver.           Kincaid

testified that “it seemed like [the driver] was having [a]

conversation with somebody outside of the vehicle[.]”            Kincaid

started to walk toward her driveway to see “if he was talking to

anybody,” and then saw another person standing in the corner of

her driveway.    The person walked toward the street and looked

towards her but never made eye contact.         After the person looked

toward Kincaid, he talked to the driver of the car.            The person

then entered the SUV, and the SUV went up the street.            Kincaid

estimated that the time between when she first noticed the driver



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and when the SUV drove away was about five minutes.            In court,

Kincaid identified the driver as Cabinatan.

            Kincaid saw her neighbor, Doug Campbell, in his

driveway, and she asked him if he knew who was in the SUV.             While

Kincaid and Campbell talked, the SUV returned and turned onto

another street.    Kincaid said it appeared to her that the person

in her driveway who had gotten into the passenger seat was then

driving the SUV.    When asked if the person who was previously

driving was then in the passenger seat, Kincaid answered:

“Correct.    But well, I couldn’t see that that person --

obviously, because it was on the opposite side.”

            Kincaid went back in her house but shortly afterward

returned to the garage and noticed that her bag and portfolio,

which she left on a couch in her garage, were gone.            That

morning, after Kincaid made a police report, the police informed

her that they had potential suspects.         Kincaid and her husband

followed Sergeant Bryan Loudermilk to the traffic stop, where

Kincaid pointed out the person she first saw driving the SUV, as

well as the person she saw near her garage. Kincaid also

recognized the SUV as the one that was parked near her house, and

identified her bag in the SUV.

            On cross-examination, Kincaid stated that she saw that

the driver was wearing dark sunglasses, a black baseball cap, and

a blue shirt.    Defense counsel questioned Kincaid about her



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initial descriptions to police of the driver.4           Kincaid agreed

that she indicated the driver was wearing a black baseball cap,

and acknowledged that she did not indicate on the police form the

color of the driver’s shirt.        The time indicated on the

description form read “0756.”5

            Defense counsel also questioned Kincaid about the field

show-up.    Kincaid testified that responding officers informed her

that police stopped a vehicle that matched her description and

contained items she described were stolen, and asked her to go to

the site to identify the suspects, the vehicle, and her items.

Defense counsel asked, “So the thing that clued you in was the

vehicle and . . . mainly your personal items then?”            Kincaid

answered in the affirmative.

            Kincaid testified that once she arrived at the traffic

stop, Sergeant Loudermilk told Kincaid that “there would be

individuals there by the car that they would want [her] to look

at to see if [she] could identify whether or not those were the

individuals that were up at [her] house.”



      4
            Kincaid’s “Suspect, Weapon and Vehicle Description” form for the
“man in car[,]” was entered into evidence as Defendant’s Exhibit J. The form,
which referred to the driver of the SUV, indicated, inter alia, that the man’s
ethnicity was Filipino and Portuguese, that he was in his early 20s, and that
he was wearing sunglasses with black frames, a black baseball cap, and a
short-sleeve T-shirt. The words “Tanned” and “Brown” were circled to indicate
the man’s complexion.
      5
            Kincaid was not asked whether she filled in the time on the form.
It is unclear from Kincaid’s testimony whether this time was intended to
indicate the time of the incident or when the form was completed. Another
witness, Officer Akana, appeared to testify that generally, this space was
used to indicate when the form was completed.

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           Defense counsel also asked Kincaid whether she could

see the driver’s arms and neck and whether she indicated on the

police form that he had any tattoos.        Kincaid answered that she

could see his arms but not his neck, and that she did not

indicate on the police form that he had tattoos.

           On redirect examination, Kincaid described the police

form, which provided choices that she could circle with regard

to, inter alia, race, complexion, color of glasses frames, and

color of hats.       In contrast, there was no color choice to circle

with regard to the suspect’s shirt.        The DPA also questioned

Kincaid about the field show-up:
           Q. . . . Now, when you identified the men down near
           the ramp, did you identify them as the suspects or
           because you found your stuff or did you recognize
           them?

           A. I recognized them.

           Q. Okay. So it’s not as if you went, there’s my bag,
           these must be the guys?

           A. Correct.

           Q. Okay. You actually looked at them and decided that
           those were the people who you had seen by your house?

           A. Yes.

           Q. Regardless of whether or not your bags were there?

           A. Correct.

           On direct examination, Sergeant Loudermilk stated that

on the morning of June 2, 2010, he responded to a UEMV case at

Sampson’s house, and that immediately after he arrived, there was

a report of a burglary at Kincaid’s house.          Sergeant Loudermilk

left Sampson’s house and went to Kincaid’s house.           Sergeant


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Loudermilk, who at the time lived in Makakilo and was familiar

with the area, estimated the distance between Sampson’s and

Kincaid’s houses as less than half a mile.          After listening to

Kincaid’s and Campbell’s statements about the incident, Sergeant

Loudermilk learned about possible suspects detained nearby.

           Sergeant Loudermilk described a field show-up:            “If

. . . an offense has occurred and we catch a possible suspect a

short distance away and the time limit is a short amount of time,

we bring a witness or complaining witness to where the possible

suspect is and we do an identification at that time.”            According

to Sergeant Loudermilk, police are trained to inform witnesses

during field show-ups that “these suspects may or may not be

involved” in the case “so the witness doesn’t feel obligated to

say this is the person when indeed it’s not[.]”

           Sergeant Loudermilk described the June 2, 2010 field

show-up in which Kincaid identified Cabinatan and Moore.

Sergeant Loudermilk stated that he and Kincaid were outside of

their vehicles and were about 25 to 30 feet from the suspects

when he asked if she could identify them.         According to Sergeant

Loudermilk, Kincaid had an “unobstructed view.”           Sergeant

Loudermilk informed Kincaid that the persons at the traffic stop

may or may not be the suspects involved in the case.            Kincaid

identified Cabinatan as the driver of the SUV, and stated that

she recognized him from his “facial features.”



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           Sergeant Loudermilk estimated that Sampson’s house is

“just around three miles” from the traffic stop, and that the

drive from Sampson’s house to the traffic stop would take

“[a]nywhere from four to six minutes following all traffic laws.”

           On cross-examination, Sergeant Loudermilk agreed that

he arrived at Sampson’s home at about 8:35 a.m., and arrived at

Kincaid’s home at about 8:40 a.m.         Sergeant Loudermilk was at

Kincaid’s house for about 15 minutes before he proceeded to the

traffic stop.    Sergeant Loudermilk testified about what he told

Kincaid regarding the field show-up:
           When we were [at Kincaid’s house], I asked her if she
           could identify the people that she saw on Limukele
           [Street]. She related she could.
           . . . .
           Then I asked her if she would view some people that we
           have down at the bottom of the hill, see if these
           people were involved or not.
           . . . .
           She related she would.
           . . . .
           And then the husband drove her down to where I
           indicated earlier. I followed. We got out of the car
           and . . . I told her also that . . . just because
           police officers are showing you these people doesn’t
           mean they’re involved or not. If you can identify
           them, let us know.

           Sergeant Loudermilk stated that he was not sure if he

asked Kincaid at her house if she could go to the traffic stop to

see if she could identify her property, but said that he “may

have.”   Sergeant Loudermilk stated that Cabinatan and Moore were

handcuffed during the field show-up, and that Cabinatan had on a

light blue shirt.    Sergeant Loudermilk testified that Cabinatan

was not wearing dark glasses, and Sergeant Loudermilk did not

recall Cabinatan wearing a hat.       Sergeant Loudermilk stated that

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he did not notice tattoos on Cabinatan and did not note the

presence of tattoos on Cabinatan in his police report.

            Sergeant Loudermilk also discussed the differences

between a field show-up and line-ups and photographic arrays.               In

discussing lineups and photographic arrays, Sergeant Loudermilk

stated that police try to include people with similar

characteristics as the suspect, but stated that if the suspect

was described as having a hat and sunglasses on, “I would have

the hats go off and the glasses go off.”          Sergeant Loudermilk

acknowledged that police did not have Kincaid identify Cabinatan

in a line-up or photographic array.         Sergeant Loudermilk also

stated that “because of the time, the distance, the fact that []

Kincaid said she could identify the people, that is why we did a

field lineup.     If she stated that she could not identify who she

saw in front of her house, we would not have taken her down to

the traffic stop.”      Sergeant Loudermilk also stated that he told

Kincaid “because [Cabinatan] was with the police, . . . not to

think that he was the person who did it, it’s an alleged

suspect[.]”

            Defense counsel asked Sergeant Loudermilk whether

seeing Cabinatan in handcuffs would suggest to Kincaid “that this

is the person we’re looking for,” and the following exchange

occurred:
            A. I believe it goes on to the person, if the person
            believes it’s suggestive, yes. If another person
            doesn’t believe it’s suggestive, it’s not.


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           Q. Okay. Isn’t it suggestive to tell a witness that,
           in this case, [] Kincaid, that we found your property
           before she even makes an ID?

           A. I’m not aware that happened.

           Q. Okay.   If it did happen, isn’t that suggestive?

           A. That could be suggestive.

           . . . .

           Q. If there’s a car that is clearly tied to
           perpetrators and the car is present at the scene,
           would that be something that’s suggestive to a
           witness?

           A. If that’s the same car that she saw from --

           Q. Yeah.

           A. I don't know if it’s suggestive. It --

           Q. Kind of?

           A. -- maybe makes her believe the person who committed
           the crime could be in the vehicle ‘cause she saw the
           vehicle, she saw two people inside the vehicle.

           Officer Brandan Ross testified that on June 2, 2010, he

was on Makakilo Drive, responding to the UEMV report at Sampson’s

house and that before he reached Sampson’s house, he saw the

“suspect vehicle . . . coming down the hill.”           Officer Ross

stopped the SUV, which contained Moore, who was driving, and

Cabinatan.   On cross-examination, Officer Ross agreed that he

stopped Moore and Cabinatan at approximately 8:09 a.m.

           Officer Lionel Kawada testified that he accompanied

Kincaid to the SUV to inspect it for her items, and that she

identified a bag and a portfolio.          Kawada did not remember

whether Kincaid identified Cabinatan before or after she

identified her property.



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            Kincaid’s neighbor, Campbell, testified that “anywhere

from 7:35 to eight o’clock” on June 2, 2010, he noticed a male in

Kincaid’s garage and a vehicle he did not recognize parked on the

street.6    When the male “noticed that [Campbell] saw what was

going on, he hid by the wall and he looked at the guy at the

vehicle and [Campbell] heard ‘hurry up, start the car.’”

Campbell was about 50 feet away when he first saw the male, and

about 30 feet away when the male said “start the car[.]”             The

male then got into the car, and the car drove up the street.

            Campbell spoke to responding police officers shortly

afterward, and they informed him that they had “potential

suspects” and asked him to “go down to identify them.”            When

Campbell went to the traffic stop for the field show-up, he saw

that the “police had two suspects. . . . [The officer] asked me

if I could identify the guy and I said, I not a hundred percent

sure, I’m 75 percent sure, and I pointed out one of the guys to

him, and I said, I think that’s the guy” who was on Kincaid’s

property.    Campbell was not able to identify the person driving

the SUV.

            Defense counsel asked Campbell about, inter alia, a

police form that he filled out to describe the suspect, which




     6
            Campbell acknowledged that he wrote “7:35" on his police
statement, but stated that a range between 7:35 to 8:00 a.m. was more
accurate. On cross-examination, Campbell stated that he “didn’t have a watch
on,” presumably at the time of the incident.

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stated “0756” as the time.       Campbell stated that he did not fill

out the time.

            After the State rested, Cabinatan moved for a judgment

of acquittal as to Counts 3 and 4.         The circuit court granted the

motion.7

            The circuit court, upon Cabinatan’s request, entered

into evidence a certified copy of Moore’s No Contest Plea and

Motion to Defer Plea form in the case.8         The circuit court

informed the jury that “the defense attorney and the prosecutor

[have] stipulated or agreed that [the jury] shall be advised that

[] Moore, in addition to pleading no contest, has asked the Court

. . . for a deferred acceptance of no contest [plea].”

            The defense called Pearl Lafaver, who testified, inter

alia, that Cabinatan was at her home in Makakilo the evening of

June 1, 2010 through the morning of June 2, 2010.            Lafaver




      7
            Subsequently, Cabinatan and the State agreed that Exhibits 18
through 20, which pertained to Counts 3 and 4, would not be withdrawn or
stricken, but also would not be provided to the jury during deliberations.
The circuit court later instructed the jury, as agreed to by the parties:

                  In your deliberations, you are only to consider
            [sic] yourself with the guilt or innocence of the
            defendant as to Counts I and II. You shall also only
            consider the evidence pertaining to those counts that
            is being sent back to the jury deliberation room with
            you.

            Although not at issue in this appeal, we note that the given
instruction did not expressly inform the jury that Exhibits 18 through 20
could not be considered, and also may have confused the jury with respect to
the evidence it could consider as to Counts 1 and 2.
      8
            Moore chose not to testify at Cabinatan’s trial, asserting his
Fifth Amendment right against self-incrimination.

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testified that she left her home “close[] to eight o'clock” and

that Cabinatan was still there when she left.

           Cabinatan testified on his own behalf and denied the

charges.   Cabinatan stated that on the evening of June 1, 2010,

he went to Lafaver’s house and slept over.          That night, Moore

stopped by, and Cabinatan asked him for a ride the next morning

“into town.”    On June 2, 2010, between 7:50 and 8:00 in the

morning, Moore called Cabinatan to say “if [Cabinatan] was ready,

he was coming down the road for pick [Cabinatan] up.”            About

three to four minutes later, Moore arrived at Lafaver’s house in

a silver SUV.    Cabinatan jumped in and they left.         Cabinatan was

in the passenger seat when police pulled over the SUV.

           Cabinatan showed the jury that he had tattoos on his

neck and “all over” his left arm and stated that he had those

tattoos for over 10 years.      He stated that on June 2, 2010, he

was wearing a “light blue . . . T-shirt[,]” and that he did not

wear a black baseball cap or dark sunglasses.          Cabinatan also

described his skin color as “[f]air.”

           After the defense rested, the circuit court proceeded

to the settling of jury instructions.         The circuit court denied

Cabinatan’s requested instructions on identification testimony,

identification procedure, and field show-up identifications.

Cabinatan’s Requested Instruction No. 1A regarding in-court and

out-of-court identification testimony read as follows:



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              [] Cabinatan has pled “Not Guilty” to the
        charges against him. The burden of proving the
        identity of the person who committed the offenses is
        upon the State. The State must prove beyond a
        reasonable doubt that this defendant is the person who
        committed the offenses. The defendant has neither the
        burden nor the duty to show that the offenses, if
        committed, were committed by someone else, or to prove
        the identity of that other person. You must
        determine, therefore, not only whether the State has
        proved each and every element of the offenses charged
        beyond a reasonable doubt, but also whether the State
        has proved beyond a reasonable doubt that this
        defendant is the person who committed them.

              The State has presented the testimony of one or
        more witnesses who may have identified the defendant,
        outside-of-court on a prior occasion, or in-court
        during this trial, as the person who committed the
        offenses. This identification was based upon the
        observations and perceptions that the witness made of
        the perpetrator at the time the offenses were being
        committed. It is your function to determine whether
        the witness’ identification of the defendant is
        reliable and believable, or whether it is based on a
        mistake or for any reason is not worthy of belief.
        You must decide whether it is sufficiently reliable
        evidence upon which to conclude that this defendant is
        the person who committed the offenses charged. You
        should consider the observations and perceptions on
        which the identification was based, and the
        circumstances under which the identification was made.
        Although nothing may appear more convincing than a
        witness’s categorical identification of a perpetrator,
        you must critically analyze such testimony. Such
        identifications, even if made in good faith, may be
        mistaken. Therefore, when analyzing such testimony,
        be advised that a witness’s level of confidence,
        standing alone, may not be an indication of the
        reliability of the identification.

              In evaluating the identifications, you should
        consider the observations and perceptions on which the
        identifications were based, and the witness’ ability
        to make those observations and perceptions. If you
        determine that the out-of-court identification is not
        reliable, you may still consider the witness’ in-court
        identification of the defendant if you find it to be
        reliable. However, unless the in-court identification
        resulted from the witness’ observations or perceptions
        of the perpetrator during the commission of the
        offenses, rather than being the product of an
        impression gained at the out-of-court identification
        procedure, it should be afforded no weight. The
        ultimate issues of the trustworthiness of both the
        in-court and out-of-court identifications are for you
        to decide.

              To decide whether the identification testimony
        is sufficiently reliable evidence upon which to

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        conclude that this defendant is the person who
        committed the offenses charged, you should evaluate
        the testimony of the witness in light of the factors
        for considering credibility that I have already
        explained to you. In addition, you may consider the
        totality of circumstances in this case, including:

        (1) The witness’ opportunity to view the person who
        committed the offenses at the time of the offenses.

        (2) The witness’ degree of attention to the
        perpetrator at the time of the offenses.

        (3) The accuracy of any description the witness gave
        to the police prior to identifying the perpetrator.

        (4) The degree of certainty expressed by the witness
        in making any identification.

        (5) The length of time between the witness’
        observation of the offense and the first
        identification.

        (6) Discrepancies or inconsistencies between
        identifications, if any.

        (7) The circumstances under which any out-of-court
        identification was made, and whether or not it was the
        product of a suggestive identification procedure,
        including any words or conduct by the police to the
        witness before, during, or after the identification
        procedure. In making this determination you may
        consider the following circumstances:

           • whether anything was said to the witness prior to
           the identification procedure, and whether that
           procedure was a photo array, line-up, or show-up[;]
           • whether the witness was told by the police that
           they have caught the culprit, or words to that
           effect, after which the witness was brought before
           defendant;
           • whether the defendant was pointed out by words or
           conduct before or during the identification
           procedure;
           • whether the witness’s identification was made
           spontaneously and remained consistent thereafter;
           • whether the police conducting the identification
           procedure either indicated to the witness that a
           suspect was present or failed to warn the witness
           that the perpetrator may or may not be present in
           the procedure;
           • whether the witness was exposed to opinions,
           descriptions, or identifications given by other
           witnesses, or to any other information or influence
           that may have affected the independence of his/her
           identification.

        (8) Any other factor based on the evidence or lack of
        evidence in the case which you consider relevant to


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           your determination whether the identifications were
           reliable.

                 Unless the in-court and out-of-court
           identifications resulted from the witness’s
           observations or perceptions of the perpetrator during
           the commission of the offenses, rather than being the
           product of an impression gained at the in-court and/or
           out-of-court identification procedures, it should be
           afforded no weight. The ultimate issue of the
           trustworthiness of the identification is for you to
           decide.

                 If, after consideration of all of the evidence,
           you determine that the State has not proven beyond a
           reasonable doubt that [] Cabinatan was the person who
           committed these offenses, then you must find him not
           guilty. If, on the other hand, after consideration of
           all of the evidence, you are convinced beyond a
           reasonable doubt that [] Cabinatan was correctly
           identified, you will then consider whether the State
           has proven each and every element of the offenses
           charged beyond a reasonable doubt.

(Emphases in original).

           Cabinatan’s Requested Instruction No. 2A regarding

“Identification Procedures, Risk of Mis-Identification” read:
                 In this case, the state has presented evidence
           that an eyewitness identified the defendant in
           connection with the charged offenses. That
           identification was made during an out-of-court
           identification procedure conducted by the police, and
           in-court during trial[]. The identification procedure
           conducted by the police either indicated to the
           witness that a suspect was present in the procedure or
           failed to warn the witness that the perpetrator may or
           may not be in the procedure.

                 Psychological studies have shown that when the
           police indicate to a witness that a suspect is present
           in an identification procedure, or fail to warn the
           witness that the perpetrator may or may not be in the
           procedure, there is an increased likelihood that the
           witness will select one of the individuals in the
           procedure, even when the perpetrator is not present.
           Thus, such behavior on the part of the police tends to
           increase the probability of a misidentification.

                 This information is not intended to direct you
           to give more or less weight to the eyewitness
           identification evidence offered by the state. It is
           your duty to determine whether that evidence is to be
           believed. You may, however, take into account the
           results of the psychological studies, as just
           explained to you, in making that determination.


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(Emphases in original).

           Finally, Cabinatan’s Requested Instruction No. 3

stated:   “Show-up identifications, such as a field show-up, are

inherently suggestive and raise risks of mis-identification.”

           The circuit court denied Cabinatan’s requested

instructions, citing this court’s decisions in State v. Vinge, 81

Hawai#i 309, 916 P.2d 1210 (1996); State v. Okumura, 78 Hawai#i

383, 894 P.2d 80 (1995); State v. Padilla, 57 Haw. 150, 552 P.2d

357 (1976); and State v. Pahio, 58 Haw. 323, 568 P.2d 1200

(1977).   Based on the cited cases, the circuit court stated that

“because of the amount of intensity which both counsel have

focused the jury on in terms of . . . the identification issue,

the Court’s instructions adequately focuses the jury on

identification, placing the burden squarely on the prosecution’s

shoulder which is to include identification.”          Defense counsel

objected to the circuit court’s general instruction on the

prosecution’s burden of proof, insofar as it would be given in

place of the defense’s requested instructions regarding

eyewitness identification.      The circuit court acknowledged

defense counsel’s arguments, but stated that it was bound by the

cited cases.

           Additionally, the circuit court stated that the factors

a trial court considers in ruling on the admissibility of

identification evidence should not be included in the

instructions as “something that the jury is bound to follow.”

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The court explained that these factors are “a guideline to trial

courts to look for in ruling [on admissibility] as a matter of

law,” and should not be given to the jury.

           The circuit court then instructed the jury.              Relevant

to the instant case, the circuit court instructed the jury

on the prosecution’s burden of proof, explaining that:
           [t]he burden of proof is on the prosecution with
           reference to every element of a crime charged, and
           this burden includes the burden of proving beyond a
           reasonable doubt the identity of the defendant as the
           person responsible for the crimes charged.

(Emphasis added).

           The circuit court also instructed the jury as follows:
                 While you must consider all of the evidence in
           determining the facts in this case, this does not mean
           that you are bound to give every bit of evidence the
           same weight. You are the sole and exclusive judges of
           the effect and value of the evidence and of the
           credibility of the witnesses.

                 It is your exclusive right to determine whether
           and to what extent a witness should be believed and to
           give weight to his or her testimony accordingly. In
           evaluating the weight and credibility of a witness’s
           testimony, you may consider the witness’s appearance
           and demeanor; the witness’s manner of testifying; the
           witness’s intelligence; the witness’s candor or
           frankness, or lack thereof; the witness’s interest, if
           any, in the result of this case; the witness’s
           relation, if any, to a party; the witness’s temper,
           feeling or bias, if any has been shown; the witness’s
           means and opportunity of acquiring information; the
           probability or improbability of the witness’s
           testimony; the extent to which the witness is
           supported or contradicted by other evidence; the
           extent to which the witness has made contradictory
           statements, whether in trial or at other times; and
           all other circumstances surrounding the witness and
           bearing upon his or her credibility.

                 Inconsistencies or discrepancies in the
           testimony of a witness, or between testimony of
           different witnesses, may or may not cause you to
           discredit such testimony. In weighing the effect of
           inconsistencies or discrepancies, whether they occur
           within one witness’s testimony or as between different
           witnesses, consider whether they concern matters of


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           importance or only matters of unimportant detail, and
           whether they result from innocent error or deliberate
           falsehood.

                 If you find that a witness has deliberately
           testified falsely to any important fact or
           deliberately exaggerated, or suppressed any important
           fact, then you may reject the testimony of that
           witness except for those parts which you nevertheless
           believe to be true.

                 You are not bound to decide a fact one way or
           another just because more witnesses testify on one
           side than the other. It is the testimony that has a
           convincing force upon you that counts, and the
           testimony of even a single witness, if believed, can
           be sufficient to prove a fact.

(Emphasis added).

           During closing arguments, the DPA stated that

identification was a critical issue in the case and that “what it

really comes down to, ladies and gentlemen, is identity.”             The

DPA further stated:
                 So how can you as a fair-minded juror be sure
           beyond a reasonable doubt that [] Cabinatan was the
           person that committed these crimes? That’s really,
           what the State would argue, is the most important
           question. How can you guys be sure that it was
           [Cabinatan] behind the wheel?
                 So let’s look at that evidence. [] Kincaid. []
           Kincaid was the victim of the burglary. You heard her
           story about getting up at 6:00 and opening up the
           garage door. So she has five to 10 minutes of contact
           where she comes out, she sees, she said she wasn’t
           exactly sure, but she saw for a couple minutes across
           the street and through the window that was down []
           Cabinatan. Unequivocal identification that morning.
                 She went down with the police officers and they
           said, were you able to identify any of the people
           involved? And there wasn’t a question, yes, that man
           was the one who was driving the vehicle, at least at
           first she did say she recognized that they swapped.
           They drove up the street and came back down. And by
           the time they came back down they were in different
           positions.
                 Now, [Moore] was driving and [Cabinatan] was the
           passenger, which not coincidentally is exactly what
           they found when the police pulled them over just
           minutes later down the hill near the freeway.




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            The DPA stated that Kincaid’s in-court identification

of Cabinatan was “unequivocal.”        The DPA also highlighted the

timing of the events and urged the jury to consider whether it

was reasonable to believe Cabinatan’s theory that Moore “and some

random person robbed the house, robbed the car,” and that Moore

then dropped that person off and picked up Cabinatan.                The DPA

continued:
                  And by the way, this random person has to look
            so much like [Cabinatan] that [] Kincaid, who’s sure
            it was [Cabinatan], . . . mixed up these two people.
            So not enough that it was just timing-wise, but he has
            to also look just like [Cabinatan]. And also that he
            can get back down all the way to the bottom of
            Makakilo by about 8:09 when Officer Ross says he would
            turn up Makakilo Drive and saw the car coming back
            down.

            Finally, the DPA discussed field show-ups, and argued

that “if [field show-ups are] so inherently suggestive . . . why

is it that only one person was willing to say, yes, I recognize

this person.”

            Defense counsel’s closing arguments included a

discussion about Cabinatan being found without dark sunglasses or

a black baseball cap, contrary to Kincaid’s description of the

driver of the SUV.9     Defense counsel also questioned Kincaid’s

reliability as a witness.       Defense counsel discussed the form

Kincaid completed containing her description of the person she

saw with Moore, and argued that “discrepancies” between that

description and Cabinatan raise doubts about the reliability of


      9
            Police officers were not asked at trial whether sunglasses or a
black baseball cap were recovered from the SUV.

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her identification.     For example, defense counsel noted that

Kincaid did not describe the person’s hair or the color of his

shirt, and that her description of the person’s complexion did

not match Cabinatan’s.      Defense counsel also noted, inter alia,

that although Cabinatan has tattoos, Kincaid’s form did not

mention any tattoos.

           Defense counsel also argued that police line-ups and

photographic arrays are more reliable and fairer than the field

show-up, which he described as a “highly, highly suggestive

procedure.”   Defense counsel argued that “the situation was ripe

for [Kincaid’s] misidentification,” stating that police “primed

her” before the field show-up by telling her that they caught the

suspects, and to see if she could identify them, the vehicle, and

her belongings.    Defense counsel also noted that Cabinatan and

Moore were handcuffed and surrounded by officers at the time of

the field show-up.

           On February 1, 2011, the jury found Cabinatan guilty as

to Counts 1 and 2.     The circuit court sentenced Cabinatan to ten

years imprisonment for Count 1 and five years for Count 2, with

both terms to run concurrently to each other.

           Following the jury verdict, the State moved to revoke

Cabinatan’s probation that he was serving in Cr. No. 09-1-0854

because Cabinatan’s burglary and UEMV convictions in Cr. No. 10-

1-0904 constituted violations of the term of his probation

requiring that he obey all laws during his probation period.                The

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circuit court revoked Cabinatan’s probation and resentenced him

to five years imprisonment to be served consecutive to his

sentence in Cr. No. 10-1-0904.

C.     ICA Appeal

             On appeal, Cabinatan argued that his burglary and UEMV

convictions in Cr. No. 10-1-0904 should be vacated because the

circuit court abused its discretion in refusing to provide a jury

instruction stating the factors to be considered in assessing the

accuracy of eyewitness identification.           Cabinatan also argued

that because the circuit court’s order revoking his probation in

Cr. No. 09-1-0854 was based on his burglary and UEMV convictions

in Cr. No. 10-1-0904, the revocation order should be vacated.

             While Cabinatan’s appeal was pending, this court issued

its decision in State v. Cabagbag, 127 Hawai#i 302, 304, 313-15,

277 P.3d 1027, 1029, 1038-40 (2012), which requires circuit

courts to “give the jury a specific eyewitness identification

instruction whenever identification evidence is a central issue

in the case, and it is requested by the defendant[.]”              The above

rule was given prospective effect; accordingly, the new rule

would not apply to cases “currently pending on direct appeal.”

Id. at 317, 277 P.3d at 1042.         Thus, cases pending on direct

appeal at the time Cabagbag was issued would be evaluated under

the pre-Cabagbag standard; that is, that the decision to give a

specific instruction on eyewitness identification rested in the

sound discretion of the trial court. Id. at 315, 277 P.3d at 1040

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(citations omitted).     The appellate court “‘must examine all

aspects of the trial, including the opening statements, the

cross-examination of prosecution witnesses, the arguments to the

jury, and the general instructions given by the court, to

determine whether the jury’s attention was adequately drawn to

the identification evidence.’”       Cabagbag, 127 Hawai#i at 317, 277

P.3d at 1042 (quoting Okumura, 78 Hawai#i at 405, 894 P.2d at

102).

           In its answering brief, the State acknowledged the new

Cabagbag rule but argued that because Cabinatan’s appeal was

pending when this court issued Cabagbag, the new rule did not

apply.   Accordingly, the State argued, the circuit court’s

decision regarding the jury instruction was within its

discretion.   The State also argued that the circuit court’s

revocation of Cabinatan’s probation was therefore proper.

           The ICA affirmed the circuit court’s judgment of

conviction in Cr. No. 10-1-0904 and the circuit court’s “Order of

Resentencing; Revocation of Probation” in Cr. No. 09-1-0854.

Cabinatan, 2012 WL 6720380, at *4.         The ICA first noted that the

new Cabagbag rule regarding specific eyewitness identification

did not apply to the instant case.         Id. at *1-2.    Thus, the ICA

concluded that the pre-Cabagbag rule applied, and that the

circuit court was not required to provide a special eyewitness

jury instruction under that rule.         Id. at *2-3.    The ICA also



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held that therefore, the circuit court did not err in revoking

Cabinatan’s probation in Cr. No. 09-1-0854.          Id. at *4.

           Cabinatan timely filed his Application for Writ of

Certiorari, in which he raises the following questions:
           1. Whether the ICA gravely erred in holding that the
           circuit court did not abuse its discretion in [failing
           to give] a more specific jury instruction on
           eyewitness identification?

           2. Whether the ICA gravely erred in holding that the
           circuit court did not err in revoking Cabinatan’s
           probation in Cr. No. 09-1-0854?


                        II.   Standard of Review

Omission of Jury Instructions

                 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.

State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843, 853 (1996)

(internal quotation marks, brackets, and citations omitted); see

also State v. Nichols, 111 Hawai#i 327, 337, 141 P.3d 974, 984

(2006) (“[O]nce instructional error is demonstrated, we will

vacate, without regard to whether timely objection was made, if

there is a reasonable possibility that the error contributed to

the defendant’s conviction, i.e., that the erroneous jury

instruction was not harmless beyond a reasonable doubt.”).




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                              III.   Discussion

A.     The circuit court abused its discretion by refusing to
       provide a specific jury instruction on field show-up
       identifications

             As a preliminary matter, Cabinatan argues that because

his case was pending on appeal prior to our decision in Cabagbag,

the rule we established in that case should be applied here.

However, the rule we set forth in Cabagbag –- that circuit courts

must give a special jury instruction on eyewitness identification

when identification evidence is a central issue and the defendant

requests it –- was prospective.         127 Hawai#i at 315, 317, 277

P.3d at 1040, 1042.       Indeed, we expressly stated in Cabagbag that

in reviewing cases pending on direct appeal at the time Cabagbag

was issued, appellate courts are to “apply the rule then in

effect when the cases were tried.”          Id. at 317, 277 P.3d at 1042.

Cabinatan’s case was tried months before Cabagbag was decided.

Therefore, we examine Cabinatan’s claim under the pre-Cabagbag

standard.

             Under the pre-Cabagbag standard, “‘we must examine all

aspects of the trial, including the opening statements, the

cross-examination of prosecution witnesses, the arguments to the

jury, and the general instructions given by the court, to

determine whether the jury’s attention was adequately drawn to

the identification evidence.’”         Cabagbag, 127 Hawai#i at 317, 277

P.3d at 1042 (quoting Okumura, 78 Hawai#i at 405, 894 P.2d at


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102).   The jury’s attention must be adequately drawn to the

identification evidence such that specific instructions are

unnecessary.   See Pahio, 58 Haw. at 331, 568 P.2d at 1206

(holding that various aspects of the trial “adequately directed

the jury’s attention to the identification evidence and made

defendant’s requested instruction unnecessary”).

           Here, we cannot say that the arguments of counsel and

the court’s general instructions adequately drew the jury’s

attention to the issues surrounding Kincaid’s identification of

Cabinatan such that more specific instructions regarding field

show-up identifications were unnecessary.         In particular, the

circumstances surrounding Kincaid’s identification of Cabinatan

were sufficiently suggestive as to require the circuit court to

provide further guidance to the jury.

           As stated above, Kincaid identified Cabinatan during a

field show-up.    While show-ups are permissible, they are

inherently suggestive.      See State v. Decenso, 5 Haw. App. 127,

131, 681 P.2d 573, 578 (1984) (“Show-up identifications are

inherently suggestive[.]” (citation omitted)); United States v.

Sanders, 708 F.3d 976, 984 (7th Cir. 2013) (“In a show up, the

police present only one suspect to the identifying witness.

Consequently, show ups are ‘inherently suggestive.’” (citations

omitted)); cf. Okumura, 78 Hawai#i at 392, 894 P.2d at 89

(stating that the identification procedure in which the defendant



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was the only person in the courtroom wearing a prison uniform and

shackles was “suggestive”).

            Moreover, the manner in which this particular show-up

was conducted raises concerns warranting a more specific

instruction to guide the jury in assessing the identification

evidence.    First, Cabinatan and Moore were handcuffed during the

show-up.    Second, Kincaid’s testimony suggests the possibility

that her identification of Cabinatan might have been influenced

by statements police made to her prior to the field show-up.

Kincaid testified that before proceeding to the show-up, she was

informed that police stopped a vehicle that matched her

description and contained items she described were stolen.

Kincaid also stated that police asked her to go to the traffic

stop to identify not only the suspects, but the vehicle and her

items.   When asked by defense counsel whether “the thing that

clued [her] in was the vehicle and . . . mainly your personal

items,” Kincaid answered in the affirmative.          Sergeant Loudermilk

stated that he was not sure if he asked Kincaid if she could go

to the traffic stop to see if she could identify her property,

but acknowledged that he “may have.”        Given the foregoing

circumstances, a more specific instruction to guide the jury on

how to assess such identification testimony was necessary.

            In denying Cabinatan’s request for specific

identification instructions, the circuit court relied on this



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court’s prior cases regarding eyewitness identification

instructions.    Specifically, the circuit court cited Vinge, 81

Hawai#i 309, 916 P.2d 1210; Okumura, 78 Hawai#i 383, 894 P.2d 80;

Pahio, 58 Haw. 323, 568 P.2d 1200; and Padilla, 57 Haw. 150, 552

P.2d 357, and stated that it was “bound” by the decisions in

those cases.    However, while the foregoing cases support the pre-

Cabagbag proposition that a specific jury instruction was not

required under the circumstances of those cases, the pre-Cabagbag

rule ultimately afforded circuit courts discretion in determining

whether to give a specific identification instruction.            See,

e.g., Okumura, 78 Hawai#i at 404, 894 P.2d at 101 (“The giving of

special instructions on identification has been regarded as

within the discretion of the trial judge or superfluous in the

light of adequate general instructions.” (quotation marks and

citations omitted)).     Accordingly, the foregoing cases did not

preclude the circuit court from providing a specific instruction

on show-up identifications.

           The circuit court also indicated it did not believe the

jury should be instructed on factors that relate to the court’s

ruling on the admissibility of identification evidence.            Here,

Cabinatan’s Requested Instruction No. 3 stated: “Show-up

identifications, such as a field show-up, are inherently

suggestive and raise risks of mis-identification.”           This proposed

instruction referred to two factors a court considers in ruling

on the admissibility of a show-up identification: (1) the

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suggestiveness of the identification procedure used, and (2)

whether the circumstances of the identification support its

reliability or create a likelihood of misidentification.             See

DeCenso, 5 Haw. App. at 131-32, 681 P.2d at 578.           Accordingly, it

appears the circuit court may have concluded that Cabinatan’s

Requested Instruction No. 3 addressed matters outside the jury’s

fact-finding role.

           However, questions of suggestiveness and reliability

also may be at issue for the trier of fact.          Put another way, a

trial court may determine that a suggestive show-up

identification is sufficiently reliable to be admissible.

However, the jury is not bound by that determination and is free

to consider the issues of suggestiveness and reliability in

determining whether to credit the identification.           See State v.

Briones, 74 Haw. 442, 464, 848 P.2d 966, 977 (1993) (noting that

the “fact finder is uniquely qualified to evaluate the

credibility of witnesses and to weigh the evidence”).            Given the

particularly suggestive factors present in this case, including

the handcuffing of the defendants and possible statements by

police that may have influenced Kinkaid’s identification of

Cabinatan, the circuit court should have provided an instruction

regarding the inherent suggestiveness of field show-up

identifications.    The failure to do so constituted an abuse of

discretion.



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           Moreover, in light of the circumstances discussed

above, we cannot say that the lack of an instruction concerning

the suggestiveness of show-up identifications was harmless beyond

a reasonable doubt.     Additionally, identification was a critical

issue in the case, and Kincaid was the State’s only witness who

identified Cabinatan and tied him to the crime.           Cabinatan not

only maintained that Kincaid misidentified him, but he presented

testimony from Lafaver indicating that Cabinatan was at her home

at the time of the offenses.       Under these circumstances, there is

a reasonable possibility that the instructional error contributed

to Cabinatan’s conviction.      See Nichols, 111 Hawai#i at 337, 141

P.3d at 984.   Accordingly, we vacate Cabinatan’s burglary and

UEMV convictions in Cr. No. 10-1-0904 and remand for a new trial.

           Because our resolution of this issue is dispositive, we

do not reach the issue of whether the circuit court abused its

discretion in declining to give additional instructions on

eyewitness identification.      However, we note that to the extent

that Cabinatan receives a new trial, this court’s prospective

rule as set forth in Cabagbag will apply; that is, “when

eyewitness identification is central to the case, [the] circuit

court[] must give a specific jury instruction upon the request of

the defendant to focus the jury’s attention on the

trustworthiness of the identification.”         Cabagbag, 127 Hawai#i at

313-14, 277 P.3d at 1038-39.       We further note that although this

court in Cabagbag provided a model jury instruction with respect

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to eyewitness identification evidence, we expressly allowed for

modifications of the instruction as well as the development of

other related instructions.          Id. at 314, 277 P.3d at 1039.

B.     The circuit court’s order revoking Cabinatan’s probation in
       Cr. No. 09-1-0854

             The circuit court revoked Cabinatan’s probation in Cr.

No. 09-1-0854 based on Cabinatan’s burglary and UEMV convictions.

In light of our above holding regarding Cr. No. 10-1-0904, we

vacate the circuit court’s order revoking Cabinatan’s probation

in Cr. No. 09-1-0854.

                               IV.    Conclusion

             For the reasons set forth in this opinion, we vacate

the ICA’s judgment on appeal, the circuit court’s Judgment of

Conviction and Sentence in Cr. No. 10-1-0904, and the circuit

court’s “Order of Resentencing; Revocation of Probation” in Cr.

No. 09-1-0854, and remand the case to the circuit court for

further proceedings.

Edward K. Harada                        /s/ Mark E. Recktenwald
for petitioner
                                        /s/ Paula A. Nakayama
Sonja P. McCullen
for respondent                          /s/ Sabrina S. McKenna




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