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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000569
                                                              19-MAR-2018
                                                              08:21 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


                         ALBERT BATALONA,
         Petitioner and Respondent/Petitioner-Appellant,

                                    vs.

                         STATE OF HAWAII,
          Respondent and Petitioner/Respondent-Appellee.


                            SCWC-15-0000569

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
    (CAAP-15-0000569; S.P.P. NO. 10-1-0096; CR. NO. 99-1549)

                             MARCH 19, 2018

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

                OPINION OF THE COURT BY POLLACK, J.

          This case arises from a challenge by Albert Batalona

to the order of the Circuit Court of the First Circuit (circuit

court) that denied without a hearing Batalona’s post-conviction

petition, which raises twenty-four grounds for relief.

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            On appeal, the Intermediate Court of Appeals (ICA)

held that the circuit court erred in denying without a hearing

Batalona’s claims in his petition relating to defense counsel’s

failure to challenge a prospective juror for cause and to secure

at trial the attendance of a co-participant in the robbery whose

out-of-court statement was admitted against Batalona.            The ICA

otherwise affirmed the circuit court’s order denying the

petition.

            Both the State of Hawaii and Batalona applied to this

court for a writ of certiorari.          In his certiorari application,

Batalona contests the ICA’s decision insofar as it affirmed the

circuit court’s order as to the other twenty-two grounds raised

in his petition.    The State’s application challenges the ICA’s

determination that defense counsel’s failure to attempt to

obtain the co-participant’s attendance at trial raises a

colorable claim for relief.

            First, with regard to Batalona’s certiorari

application, we hold that grounds 8 and 10 of his petition,

which assert that defense counsel’s failure to challenge the

denial of Batalona’s request for a copy of discovery materials

resulted in the impairment of his right to present a complete

defense and adversely affected his waiver of the right to

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testify, raise colorable claims for relief.          We otherwise affirm

the ICA’s denial of a hearing with regard to the remaining

grounds set forth in the petition except as to ground 18, which

we dismiss without prejudice.

          Second, with respect to the State’s certiorari

application, we affirm the ICA’s determination that ground 20(f)

of Batalona’s petition, which asserts that defense counsel

failed to exercise a good faith effort to obtain the co-

participant’s attendance at trial, raises a colorable claim for

relief.

          Accordingly, we remand this case to the circuit court

for further proceedings in accordance with this opinion.

                              I. BACKGROUND

          On July 12, 1999, Batalona, Sean Matsunaga, and Jacob

Hayme were charged by complaint with bank robbery, in violation

of 18 United States Code § 2113(a), in the United States

District Court for the District of Hawaii.         Matsunaga and Hayme

were additionally charged with firearm violations.           The

complaint against Batalona was subsequently dismissed without

prejudice at the request of the United States Attorney.

          On August 11, 1999, a circuit court grand jury

indicted Batalona on seventeen counts under state law, including


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the following: robbery in the first degree in violation of

Hawaii Revised Statutes (HRS) § 708-840(1)(b)(ii)1 (count 1);

attempted murder in the first degree in violation of HRS §§ 705-

500,2 707-701(1)(b),3 and 706-6564 (count 2); carrying, using, or



      1
            A person commits the offense of robbery in the first degree
            if, in the course of committing theft:
                  . . .
                  (b) The person is armed with a dangerous instrument
            and:
                        . . .
                        (ii) The person threatens the imminent use of
            force against the person of anyone who is present with
            intent to compel acquiescence to the taking of or escaping
            with the property.

HRS § 708-840(1)(b)(ii) (Supp. 1998).
      2
            (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.

HRS § 705-500 (1993).
      3
            “A person commits the offense of murder in the first degree if
the person intentionally or knowingly causes the death of: . . . A peace

                                                             (continued . . .)
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threatening to use a firearm in the commission of a separate

felony in violation of HRS § 134-6(a) and (e)5 (count 3); and

possession of a prohibited firearm in violation of HRS § 134-

8(a)6 (count 17).      The State thereafter filed a motion for nolle


(. . . continued)

officer, judge, or prosecutor arising out of the performance of official
duties[.]” HRS § 707-701(1)(b) (1993).
      4
            “Persons convicted of first degree murder or first degree
attempted murder shall be sentenced to life imprisonment without the
possibility of parole.” HRS § 706-656(1) (1993).
      5
            HRS § 134-6 (repealed 2006) provided in relevant part as follows:

                  (a) It shall be unlawful for a person to knowingly
            carry on the person or have within the person’s immediate
            control or intentionally use or threaten to use a firearm
            while engaged in the commission of a separate felony,
            whether the firearm was loaded or not, and whether operable
            or not . . . .
                   . . .
                  (e) Any person violating subsection (a) or (b) shall
            be guilty of a class A felony. Any person violating this
            section by carrying or possessing a loaded firearm or by
            carrying or possessing a loaded or unloaded pistol or
            revolver without a license issued as provided in section
            134-9 shall be guilty of a class B felony. Any person
            violating this section by carrying or possessing an
            unloaded firearm, other than a pistol or revolver, shall be
            guilty of a class C felony.

HRS § 134-6(a), (e).
      6
            The manufacture, possession, sale, barter, trade, gift,
            transfer, or acquisition of any of the following is
            prohibited: assault pistols, except as provided by section
            134-4(e); automatic firearms; rifles with barrel lengths
            less than sixteen inches; shotguns with barrel lengths less
            than eighteen inches; cannons; mufflers, silencers, or
            devices for deadening or muffling the sound of discharged
            firearms; hand grenades, dynamite, blasting caps, bombs, or
            bombshells, or other explosives; or any type of ammunition
            or any projectile component thereof coated with teflon or

                                                             (continued . . .)
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prosequi of counts 4 through 16, which the circuit court

granted.

                    A. Pretrial Request for Discovery

            At a pretrial hearing, defense counsel requested

permission from the circuit court to give Batalona a redacted

copy of the discovery that defense counsel had received.7

Defense counsel indicated that he had been provided

approximately 3,000 pages of discovery and that it was important

for Batalona to receive the discovery because each witness was

going to testify as to events that occurred on the day of the

incident.    The circuit court denied defense counsel’s request,

expressing its concern that, if Batalona were permitted to have

a copy of the discovery, then the court will “have every

defendant always asking for information.”          The court added that

“there’s very few information that any defendant really needs to

understand in terms of the details of a case” and that defense

(. . . continued)

            any other similar coating designed primarily to enhance its
            capability to penetrate metal or pierce protective armor;
            and any type of ammunition or any projectile component
            thereof designed or intended to explode or segment upon
            impact with its target.

HRS § 134-8(a) (1993).
      7
            Counsel informed the court that the discovery materials would be
redacted to remove any personal information of the witnesses.



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counsel “can go to the prison and discuss it with [Batalona].”

Defense counsel responded that it would probably take about one

to two months to review the discovery with Batalona because he

was incarcerated and argued that Batalona was entitled to review

the reports and witness statements against him “word by word.”

The court responded that “[t]here are other ways” and denied

counsel permission to provide a copy of the redacted discovery

to Batalona.

                           B. Pretrial Motions

            Hayme and Matsunaga, who were co-participants in the

robbery, both reached plea agreements with the federal

government.    In Matsunaga’s Memorandum of Plea Agreement, he

admitted his involvement in the robbery and identified Batalona

as the person who was responsible for shooting at the officer.

Two days later, Matsunaga provided a recorded statement in which

he implicated himself as the person who shot at the officer.

Hayme also provided a recorded statement, in accordance with his

Memorandum of Plea Agreement, which was both inculpatory and

exculpatory as to his involvement in the charged offenses in

this case.8


     8
            In their respective plea agreements, Hayme and Matsunaga agreed
to plead guilty to bank robbery and a firearm offense in exchange for the

                                                             (continued . . .)
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            On July 17, 2000, the State filed a motion in limine

seeking to preclude, inter alia, the admission of Matsunaga’s

recorded statement at trial.        In its motion, the State noted

that it did not appear that either Hayme or Matsunaga would be

testifying at trial.      Batalona opposed the State’s motion,

arguing, inter alia, that Matsunaga’s recorded statement was

admissible pursuant to the hearsay exceptions regarding public

records and reports and statements against interest.

            The State’s motion was heard on July 20, 2000, and the

State reiterated that Matsunaga would not testify at trial.9                The

State contended, alternatively, if Matsunaga’s statement was

admitted into evidence, his Memorandum of Plea Agreement, as

well as Hayme’s recorded statement, would also have to be

admitted.    In response, Batalona maintained that Matsunaga’s

recorded statement was admissible and additionally noted that it


(. . . continued)

United States’ agreement to dismiss one count of the information, to not
charge them with any additional charges arising from the July 7, 1999 bank
robbery, and, in its discretion, to move the sentencing court to reduce the
sentence based on the assistance provided. Hayme and Matsunaga also agreed
to testify truthfully at any federal or state trials, hearings, or other
proceedings involving codefendants and others. They further agreed not to
assert any privilege to refuse to testify in any federal or state trial
involving or related to the crimes for which they were charged.
      9
            The Honorable Marie N. Milks presided over all proceedings
related to the trial in this case.



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was the defense’s desire to call Hayme and Matsunaga to

determine whether they would invoke their privilege against

self-incrimination.     Batalona argued that he had a

constitutional right to confront witnesses and a constitutional

right to present his defense.

            The circuit court ruled that, if Batalona introduced

Matsunaga’s recorded statement, both that statement and

Matsunaga’s Memorandum of Plea Agreement would be admitted as

evidence.   As to Hayme’s recorded statement, the court

determined that the introduction of that statement alone--so

long as the statement was inculpatory to Hayme and fell within a

hearsay exception--would be permitted.         The court suggested that

both parties should attempt to get live witnesses, to which the

State responded, “We can’t get them.”        The court reiterated that

“you should first try that,” and the State responded, “We’ve

tried that.”

            On July 24, 2000, the State filed a motion for

redaction of Hayme’s and Matsunaga’s statements, attaching both

statements and requesting that specific pages and lines be

redacted.    The following day, Batalona filed a second

supplemental motion in limine, seeking an order precluding any

references to portions of any statement that do not fall within


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an exception to the hearsay rule or that violate Batalona’s

constitutional right to confrontation.

            A hearing on both parties’ motions was held on July

31, 2000.   The transcript of this portion of the hearing is not

part of the record on appeal.

                          C. Trial and Appeal

            A jury trial took place from July 27, 2000, through

August 11, 2000.    At trial, the following evidence was adduced.

On July 7, 1999, Batalona, Hayme, Matsunaga, and Roger Dailey

were involved in an armed robbery of the American Savings Bank

located at 1215 Hunakai Street in Kahala, Hawaii.          At

approximately 10:00 a.m., Batalona, Hayme, Matsunaga, and Dailey

entered the bank wearing ski masks and dark clothes; bank

employees and customers were ordered to get on the floor and

keep their eyes on the ground.       The four men removed

approximately $120,000 from the cash drawers and the tellers’

cash dispensers and exited the bank.        Batalona and Matsunaga

were each carrying an AR-15 military assault rifle, Dailey held

a .357 revolver, and Hayme was armed with an AK-47 military

assault rifle.

            At approximately 10:03 a.m. on that day, Honolulu

Police Department (HPD) Officer Frederick Rosskopf--who was on

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duty and in uniform--was dispatched to the American Savings Bank

in Kahala to investigate the activation of the bank’s silent

alarm.     Officer Rosskopf parked his car on the side of the

street on which the bank was located and then walked along the

sidewalk toward the bank.         As he approached the bank’s parking

lot, Officer Rosskopf saw a male wearing a dark ski mask and

dark clothing, who appeared to be standing behind a vehicle--

“like a roof of a car in front of him.”            The masked male had a

rifle to his right shoulder, which was aimed directly at Officer

Rosskopf.      The masked male immediately opened fire upon seeing

Officer Rosskopf, causing Officer Rosskopf to dive for cover

behind a white compact car.         The rate of fire quickened, pinning

Officer Rosskopf behind the car.            Some of the rounds hit the car

that Officer Rosskopf used as cover.            Officer Rosskopf returned

fire but took cover again as the masked male continued firing at

him.    The rate of fire eventually slowed to a stop.            Officer

Rosskopf received some scratches and bruises as a result of the

incident.

             Dailey testified that Batalona stood “in the door jamb

on the passenger side” of the vehicle during the exchange of

gunfire, Batalona’s weapon was pointed in the direction of




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Officer Rosskopf’s car, Batalona fired first, and Hayme and

Matsunaga were still in the bank when the shooting started.10

           Siosaia Talakai, a friend whom Batalona stayed with

following the robbery, and who was called as a witness by the

State, testified that Batalona told him that he did not intend

to kill Officer Rosskopf and that his main concern was to get

away.

           Following the exchange of gunfire, Officer Rosskopf

saw a white Blazer--which was used as a getaway car--exiting the

parking lot of the American Savings Bank driven by a man wearing

a black ski mask and dark clothing.         After providing dispatch

with a description of the vehicle and the vehicle’s direction of

travel, Officer Rosskopf proceeded toward the bank parking lot.

Upon reaching a wooden fence, Officer Rosskopf saw another male

wearing a dark ski mask running toward Kahala Mall.            Officer

Rosskopf could not tell whether that masked male was the same

person who shot at him.




     10
            Dailey also reached a plea agreement with the federal government
in which he agreed to plead guilty to bank robbery in exchange for the United
States’ agreement to not charge him with any additional charges arising from
the July 7, 1999 bank robbery, and, in its discretion, to move the sentencing
court to reduce the sentence based on the assistance provided. The other
terms of the plea agreement were similar to Hayme’s and Matsunaga’s plea
agreements. See supra note 8.


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          Hiroshi Inouye, a delivery driver for the Makiki Bake

Shop, was delivering bread and other baked goods using the

shop’s van when a man wearing a ski mask came in front of the

vehicle, causing Inouye to stop the van.         The masked man, who

was carrying what appeared to be an automatic rifle, opened the

van door, asked for the keys, and ordered Inouye out of the van;

Inouye complied.    The masked man then drove off with the van.

The State argued in closing argument that Batalona was the

masked man who shot at Officer Rosskopf and who took the van.

          The van was recovered by police and returned to the

owner of the Makiki Bake Shop the day after the robbery.

Approximately two weeks later, a rifle magazine was discovered

in the passenger side door of the van.         The magazine, which had

four remaining cartridges, was turned over to police by the Bake

Shop owner and later admitted into evidence at trial.

          Pursuant to an investigation conducted by HPD, it was

discovered that two weapons were fired on the day of the

robbery: the AK-47 that was later recovered from Hayme’s home

and one of the AR-15s.     In addition, officers learned that,

about two or three weeks prior to the bank robbery, Batalona,

Dailey, Hayme, and Matsunaga went pig hunting at Waiahole Ranch,

where Batalona fired an AR-15 rifle.        Police also learned that


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Batalona was a range instructor at the Diamond Head Gun Shop.

HPD recovered, inter alia, twenty-nine cartridge casings and a

magazine containing thirty cartridges from the bank parking lot

and twenty shell casings from Waiahole Ranch.           The two AR-15

rifles that were apparently used in the course of the robbery

were not recovered.

           Hayme did not testify, but a redacted version of his

recorded statement was offered by the State, admitted into

evidence,11 and played for the jury.12        The recorded statement was

given--as part of his plea agreement with the federal

government--the day after Hayme pled guilty to robbery and a

firearm violation in federal court.         In his statement, Hayme

said that all four robbers were on the passenger side of the

Blazer during the exchange of gunfire.          Hayme stated that he did

not fire his weapon until after shots were fired.            He also

stated that one person was mounted on top of the Blazer; that

     11
            The redacted version of Hayme’s recorded statement was admitted
into evidence on August 2, 2000. Defense counsel indicated that there was no
objection to its admission into evidence except for whatever had been
discussed previously. The previous discussions regarding Hayme’s statement
appear to relate to the hearings that were held on July 20, 2000 and July 31,
2000.
     12
            The redacted version of Hayme’s recorded statement that was
admitted into evidence is not included in the record on appeal and is not
available. As a result, the substance of Hayme’s admitted statement is drawn
from the State’s and the defense’s closing arguments.



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person--who was not Hayme--was firing at Officer Rosskopf.

Hayme further said that he fired about two rounds “[m]aybe just

in the air” and that he did not shoot at Officer Rosskopf.

            The State also presented the testimony of Curtis Kubo

and Charles Davis, experts in firearms and ballistics.             The

firearms and ballistics evidence indicated that the magazines

recovered from the bakery van and the bank parking lot were

manufactured to function with either an AR-15 or an M-16 rifle.

In addition, twenty-five of the twenty-nine cartridge casings

recovered from the bank parking lot were fired from an AR-15,

which was the same AR-15 that fired the twenty cases recovered

from the ranch.     The AR-15 is also chambered for the type of

ammunition found in the magazine recovered from the bakery van.

            Following the conclusion of the State’s case-in-chief,

the defense moved for judgment of acquittal, which motion the

court denied.     The defense offered a redacted version of the

recorded statement of Matsunaga, who did not testify.             The

redacted statement was admitted into evidence and played for the

jury.13   In his statement, Matsunaga said that on the day of the

     13
            Matsunaga’s redacted statement, as admitted at trial, is also not
included in the record on appeal and is not available. Hence, the substance
of Matsunaga’s recorded statement that was played for the jury is drawn from
the parties’ closing arguments.



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incident he was the last person out of the bank, he had an AR-15

rifle, and he shot at Officer Rosskopf.          Matsunaga’s recorded

statement contradicted his version of events as set forth in his

Memorandum of Plea Agreement, in which he stated that Batalona

fired numerous rounds at Officer Rosskopf.14

           The circuit court subsequently advised Batalona of his

rights to testify and not to testify; Batalona elected not to

testify, and the defense rested.

           The circuit court instructed the jury on the lesser

included offenses of attempted murder in the first degree,

attempted assault in the first and second degree, and reckless

endangering in the first degree.          Batalona requested that the

court also instruct the jury on attempted murder in the second

degree, attempted reckless manslaughter, and assault against a

police officer, which instructions the court refused.             The

parties then presented closing arguments.

           The jury found Batalona guilty as charged on all four

counts.   The circuit court sentenced Batalona to the following:

count 1, twenty years imprisonment with a mandatory minimum term

     14
            During the State’s case-in-chief, Matsunaga’s Memorandum of Plea
Agreement and the proffer letter he received from the United States
Attorney’s Office were stipulated into evidence--subject to Batalona’s prior
objections.



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of fifteen years imprisonment; count 2, life imprisonment

without the possibility of parole; count 3, twenty years

imprisonment with a mandatory minimum term of fifteen years

imprisonment; and count 17, five years imprisonment with a

mandatory minimum term of five years.        All of the terms of

imprisonment were ordered to run concurrently unless there were

other sentences for which Batalona was already serving.            The

court also imposed restitution in the amount of $6,244.02.

Judgment of conviction and sentence was entered on October 11,

2000, from which Batalona appealed.        On October 9, 2003, this

court affirmed the judgment of conviction and sentence in a

summary disposition order.      State v. Batalona, No. 23820, 2003

WL 22311769 (Haw. Oct. 9, 2003) (SDO).

               D. Petition for Post-Conviction Relief

          On December 8, 2010, Batalona--proceeding pro se--

filed a petition for post-conviction relief pursuant to Hawaii

Rules of Penal Procedure Rule 40 (petition), asserting twenty-

two grounds for relief.     Batalona filed a motion to supplement

his petition with ground 23, which the circuit court granted.

Batalona later filed a supplemental ground 24.          Of the twenty-

four grounds raised in the petition, nineteen involve

allegations of ineffective assistance of counsel; three involve

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allegations of illegality in the sentence Batalona received; one

involves an allegation of post-conviction denial of access to

discovery; and one involves an allegation of cumulative errors

and omissions that would preclude instructions on lesser

included offenses in a retrial.

             Following a series of ex parte motions by the State to

extend the time to file its response, which were primarily

related to the State’s ongoing efforts to obtain a declaration

from defense counsel, the State filed its answer to the petition

on November 17, 2011.15        Batalona thereafter filed a reply to the

State’s answer.

             On January 25, 2012, the State filed a supplemental

answer to the petition, which includes a declaration from

defense counsel (Declaration).16          In his Declaration, defense

counsel stated that any error or omission on his part relating

to Batalona’s claims of ineffective assistance of counsel, as

alleged in grounds 1-6, 8-9, 13-17, 19-21, and 23 of the

petition, did not result in the substantial impairment of a


      15
             After the State filed its answer to the petition, it moved for
issuance of an order to show cause in order to obtain defense counsel’s
declaration.
       16
             Batalona’s counsel at trial and on direct appeal was David Klein,
Esq.


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meritorious claim or defense and/or was the result of a

strategic or tactical decision.        As to ground 10, which involves

an allegation relating to counsel’s advice that Batalona should

not testify at trial, defense counsel stated that the circuit

court conducted a colloquy with Batalona regarding his right to

testify as required by Tachibana v. State, 79 Hawaii 226, 900

P.2d 1293 (1995), adding that any privileged communications

between Batalona and him would not be disclosed without a court

order indicating the privilege was waived.          As to grounds 7, 11-

12, 18, and 22, which involve allegations regarding the

propriety of Batalona’s sentence, post-conviction denial of

access to discovery, and cumulative errors and omissions

relating to a retrial, defense counsel declared that these

allegations did not relate to a claim of ineffective assistance

of counsel.

           On July 1, 2015, the circuit court issued its

“Findings of Fact, Conclusions of Law, and Order Denying

Petition for Post-Conviction Relief Without a Hearing” (Order).17

The court concluded that Batalona’s claims of ineffective

assistance of counsel in grounds 1-6, 8-10, 13-17, 19-21, and 23
     17
            The Honorable Colette Y. Garibaldi presided over the post-
conviction proceedings.



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were “patently frivolous and without a trace of support” because

Batalona failed to point to specific errors or omissions by

defense counsel resulting from a lack of skill, judgment, or

diligence.18    The circuit court also concluded that grounds 7,

11, 12, 18, and 22 were patently frivolous and without a trace

of support either in the record or from the evidence submitted

by Batalona.    Concluding that Batalona failed to demonstrate the

existence of a colorable claim that would have required a

hearing before the circuit court, the court denied Batalona’s

petition without a hearing.19       Batalona filed a notice of appeal

to the ICA.

                           II. ICA PROCEEDINGS

           In his opening brief, Batalona asserted that the

circuit court erred in denying a hearing on twenty-one of the

twenty-three grounds raised in the petition and in not

addressing ground 24.20      Specifically, with regard to ground 1,


     18
            The circuit court provided no further explanation for its ruling
on Batalona’s claims relating to ineffective assistance of counsel.
     19
            The circuit court did not address supplemental ground 24, in
which Batalona argues that defense counsel was ineffective for failing to
call witnesses to show that Batalona was inside the bank when shots were
fired.
     20
            Batalona did not challenge the circuit court’s denial of a
hearing on grounds 11 and 12. With regard to the other twenty-two grounds,
Batalona’s contentions on appeal parallel those stated in his petition. The

                                                             (continued . . .)
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Batalona argued that defense counsel provided ineffective

assistance by being compelled to use peremptory challenges--that

Batalona wanted to use to excuse other jurors--on two

prospective jurors who should have been challenged and excused

for cause.

            As to ground 20(f), Batalona argued that defense

counsel provided ineffective assistance by failing to secure the

attendance of Hayme and Matsunaga at trial.           Batalona submitted

that Hayme and Matsunaga gave investigators recorded statements

that were both favorable and contrary to Batalona’s interests.

Redacted versions of those statements, Batalona continued, were

admitted into evidence and published to the jury in violation of

his right to confrontation of witnesses.

            In its answering brief, the State argued, inter alia,

that Batalona’s claim in ground 1 failed as a matter of fact

because Batalona did not demonstrate that the prospective jurors

who allegedly should have been excused for cause were in fact

selected as jury members in Batalona’s trial.           In the


(. . . continued)

ICA’s memorandum opinion individually addressed grounds 1 and 20(f), and
therefore these grounds are summarized here. The remaining grounds in the
petition that were denied without a hearing and that Batalona raised on
appeal and certiorari will be addressed infra.



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alternative, the State contended that Batalona’s claim failed as

a matter of law because Batalona did not show that the

prospective jurors had biases favoring law enforcement.

           As to ground 20(f) of Batalona’s petition, the State

asserted that the transcripts and the recordings of Hayme’s and

Matsunaga’s statements were admitted into evidence as defense

exhibits.21   In addition, the State argued that defense counsel

used Hayme’s and Matsunaga’s statements in closing argument to

support the defense theory that Batalona was not the person who

shot at Officer Rosskopf.       The State contended that the decision

to call a witness to testify is a tactical one that is typically

within the judgment of defense counsel.

           In his reply brief, Batalona contended that the issue

in ground 1 was not whether the prospective jurors actually

served on the jury, but rather, counsel’s expending of

peremptory challenges on prospective jurors whom the circuit

court should have excused for cause had they been so challenged.

Thus, according to Batalona, he was left with no peremptory

challenges to use on other jurors having ties to law enforcement

and who ended up serving on the jury in his case.


     21
            The transcript indicates that Hayme’s redacted statement was
admitted as State’s Exhibit 160.


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          As to ground 20(f), Batalona replied that the use of

the recordings and the transcripts of Hayme’s and Matsunaga’s

statements would have been permitted if Hayme and Matsunaga were

unavailable, which they were not.        Batalona reiterated that

defense counsel’s failure to secure the attendance of Hayme and

Matsunaga violated his right to confrontation.

          In its memorandum opinion, the ICA determined as to

ground 1 that it was unclear whether defense counsel would have

succeeded in having the first of the two prospective jurors

identified by Batalona excused for cause, as the juror showed no

bias in favor of law enforcement.        However, the ICA concluded

that the second prospective juror may have demonstrated

sufficient bias against Batalona that defense counsel could have

succeeded in challenging that juror for cause, thus preserving

one of his peremptory challenges to excuse another prospective

juror.   Concluding that defense counsel’s basis for not

challenging the second prospective juror for cause was unclear

and that his Declaration did not provide an adequate

explanation, the ICA held that Batalona raised a colorable claim

and that the circuit court therefore erred in denying ground 1

of Batalona’s petition without a hearing.




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          Turning to ground 20(f), the ICA held that the

admission of Matsunaga’s recorded statement did not violate

Batalona’s Sixth Amendment right to confrontation because

Batalona himself introduced Matsunaga’s statement at trial.                As

to Hayme’s statement, the ICA determined that the statement was

testimonial and that the record was unclear whether Hayme was

really unavailable.     The ICA found that, while Hayme apparently

refused to testify, there did not appear to be any evidence that

the State made an effort in good faith to secure Hayme’s

attendance at trial.     Had Hayme testified, the ICA continued,

Batalona may have cast reasonable doubt on the State’s theory

that Batalona shot at Officer Rosskopf because, as the State

conceded, Hayme also fired his weapon during the robbery.             As a

result, if defense counsel did not subpoena Hayme, the ICA

determined that such a failure may have resulted in the

withdrawal or the substantial impairment of a potentially

meritorious defense.     Because defense counsel’s Declaration did

not adequately address his decision not to subpoena Hayme, the

ICA concluded that the circuit court should have held a hearing

on this portion of ground 20(f) of Batalona’s petition.

          Accordingly, the ICA vacated the circuit court’s Order

and remanded the case for a hearing on grounds 1 and 20(f).                As


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to the remaining grounds, the ICA affirmed the circuit court’s

denial of a hearing, concluding--without individually

addressing--that “the other twenty-one separate grounds, as well

as the other subparts of Ground 20 in Batalona’s Rule 40

Petition . . . are patently frivolous and [are] without a trace

of support either in the record or from other evidence submitted

by [Batalona].”

           Batalona filed an application for a writ of certiorari

challenging the ICA’s decision that affirmed the circuit court’s

denial of a hearing on the other twenty-one grounds.            The State

also filed an application, arguing that the ICA erred in holding

that the circuit court should have held a hearing on ground

20(f) regarding defense counsel’s failure to subpoena Hayme.22

                         III. STANDARD OF REVIEW

           “The question on appeal of a denial of a Rule 40

petition without a hearing is whether the trial record indicates

that Petitioner’s application for relief made such a showing of

a colorable claim as to require a hearing before the lower

court.”   Dan v. State, 76 Hawaii 423, 427, 879 P.2d 528, 532


     22
            The State did not challenge the ICA’s ruling on ground 1 that
defense counsel’s failure to challenge a juror for cause raises a colorable
claim.



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(1994) (emphasis omitted) (quoting State v. Allen, 7 Haw. App.

89, 92-93, 744 P.2d 789, 792-93 (1987)).          In determining whether

a Rule 40 petition raises a colorable claim, “the appellate

court steps into the trial court’s position, reviews the same

trial record, and redecides the issue.”          Id.

                              IV. DISCUSSION

          A. Batalona’s Application for Writ of Certiorari

                   1.    Colorable Claims for Relief

           In his application, Batalona asserts twenty-two of the

twenty-four grounds for relief that are raised in his petition.23

Among those grounds is a claim that defense counsel provided

ineffective assistance at trial for failing to challenge the

circuit court’s denial of Batalona’s request for a copy of

discovery materials.      Based on this failure, Batalona

respectively contends in grounds 8 and 10 that his right to

participate in his own defense was impaired and his right to

voluntarily waive the right to testify was affected.

           Batalona specifically asserts in ground 8 that defense

counsel erred in asking the court’s permission to release

discovery materials to him when Rule 16(e)(3) of the Hawaii

     23
            Although the grounds are numbered differently in the petition and
the application, they are identical in substance and will be referenced as
numbered in the petition.


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Rules of Penal Procedure (HRPP) places the burden on the State

to show cause why Batalona should not be provided a copy of the

discovery materials.

           Batalona’s counsel, on February 15, 2000, made a

pretrial request to provide Batalona with a redacted copy of the

discovery that had been disclosed by the prosecutor.           The

request was denied by the circuit court.         At the time of

Batalona’s pretrial request, HRPP Rule 16(e)(3) provided as

follows:

           Any material furnished to an attorney pursuant to these
           rules shall remain in the attorney’s exclusive custody and
           be used only for the purposes of conducting the attorney’s
           side of the case, and shall be subject to such other terms
           and conditions as the court may provide.

HRPP Rule 16(e)(3) (1993).      Hence, HRPP Rule 16(e)(3) stated

that discovery materials were to remain in an attorney’s

exclusive custody but that they “shall be subject to such other

terms and conditions as the court may provide.”          Counsel

informed the court that the discovery consisted of approximately

3,000 pages and that it was important for Batalona to receive

the discovery because each witness was going to testify as to

events that occurred on the day of the incident.           Defense

counsel also explained that it would probably take about one to

two months to review the discovery with Batalona.           In denying

defense counsel’s request, the court stated that, if Batalona’s
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request was granted, then every defendant will be asking for a

copy of discovery and that counsel could instead go to the

prison to discuss the discovery materials with Batalona.

           Effective July 1, 2000, HRPP Rule 16(e)(3) was amended

to read as follows:

           Except as otherwise provided in this subsection, any
           discovery material furnished to an attorney pursuant to
           these rules shall remain in the attorney’s exclusive
           custody and be used only for the purposes of conducting the
           attorney’s side of the case, and shall be subject to such
           other terms and conditions as the court may provide. The
           attorney may provide the defendant with a copy of any
           discovery material obtained if the attorney gives the
           prosecutor written notice of the attorney’s intent to do so
           and the prosecutor does not file a motion for protective
           order within ten (10) days of the receipt of the notice.

HRPP Rule 16(e)(3) (2000) (emphasis added).           Based on the rule

amendment, an attorney was authorized without court permission

to provide a defendant with a copy of discovery materials, so

long as notice of the intent to do so was communicated to the

prosecutor in writing and the prosecutor did not move for a

protective order within ten days of receiving notice.24

     24
            The dissent argues that ground 8 of Batalona’s petition relates
only to the pre-2000 version of HRPP Rule 16(e)(3). Dissent at 8. On the
contrary, Batalona contends in ground 8 that HRPP Rule 16(e)(3) “places the
burden on the prosecution to show cause why Batalona should not be provided
with discovery.” (Capitalization omitted.) And indisputably, it was the
2000 amendment to HRPP Rule 16(e)(3) that allowed a defense counsel to
provide a copy of the discovery to the defendant, placing the burden on the
prosecutor to move for a protective order upon receiving notice from a
defense counsel that a copy of the discovery was to be provided to the
defendant. Thus, Batalona’s reliance on the 2000 amendment to HRPP Rule
16(e)(3) is markedly apparent.



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            Trial in this case did not commence until July 27,

2000.     Following the amendment to HRPP Rule 16(e)(3) on July 1,

2000, defense counsel could have notified the prosecutor in

writing that he was going to provide Batalona with a copy of the

obtained discovery while also requesting the circuit court to

modify its prior ruling in light of the amended rule.             Notice to

the prosecutor would have allowed the State ten days to file a

motion for a protective order.        If the prosecutor had objected,

the circuit court would have decided, based upon a showing of

cause, whether to deny, limit, or postpone Batalona’s access to

the discovery, or “make such other order as is appropriate.”

HRPP Rule 16(e)(4) (2000).25       However, nothing in the record

indicates that defense counsel gave the prosecutor written

notice of an intent to provide Batalona with copies of the

discovery, renewed Batalona’s request for discovery after HRPP

Rule 16(e)(3) was amended, or requested that the circuit court

modify its previous ruling.


     25
            HRPP Rule 16(e)(4) provides in relevant part as follows:

            Upon a showing of cause, the court may at any time order
            that specified disclosures or investigatory procedures be
            denied, restricted, or deferred, or make such other order
            as is appropriate, provided that all material and
            information to which a party is entitled shall be disclosed
            in time to permit counsel to make beneficial use thereof.



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             “The constitutional right to the assistance of counsel

in a criminal case . . . is satisfied only when such assistance

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

977, 979 (1972) (quoting Powell v. Alabama, 287 U.S. 45, 71

(1932)).     This court has recognized that “effective” counsel

means “counsel whose assistance is ‘within the range of

competence demanded of attorneys in criminal cases.’”               Id.

(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).                 “A

primary requirement is that counsel must conduct careful factual

and legal investigations and inquiries with a view to developing

matters of defense in order that he [or she] may make informed

decisions on [the] client’s behalf, . . . both at pretrial

proceedings . . . and at trial.”            State v. Aplaca, 74 Haw. 54,

70, 837 P.2d 1298, 1307 (1992) (third and fourth alterations in

original) (quoting Kahalewai, 54 Haw. at 30-31, 501 P.2d at 979-

80).    In a similar fashion, Standard 4-1.2(b) of the American

Bar Association (ABA) Defense Function Standards for Criminal

Justice (3d ed. 1993) [hereinafter ABA Defense Function

Standards] provides that the basic duty of defense counsel is

“to render effective, quality representation.”

             Additionally, to fulfill their duty as advocates,

“lawyers must take pains to guarantee that . . . their knowledge


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[is] up-to-date.”     ABA Defense Function Standards § 4-1.2 cmt.

at 123.   Defense counsel in this case thus had a duty in the

course of representing Batalona to keep apprised of rules and

amendments that were in place at the time of Batalona’s trial

and to act accordingly.       See ABA Defense Function Standards § 4-

1.2 cmt. at 123.

           The record does not support a finding that defense

counsel acted in response to the amendment to HRPP Rule

16(e)(3), which related critically to the ability of Batalona

and counsel to prepare for trial upon a charge that carried a

sentence of mandatory life imprisonment without parole upon

conviction.    Batalona contends that the denial of access to

discovery violated his right to present a complete defense and

also adversely impacted his waiver of the right to testify.26


     26
            The dissent maintains that the 2000 amendment to HRPP Rule
16(e)(3) “permitted, but did not require, defense counsel to provide the
defendant with copies of discovery materials.” Dissent at 9 (emphases
omitted). In this case, there were approximately 3,000 pages of discovery,
which included reports and statements of witnesses adverse to Batalona who
would testify at trial regarding the incident. Defense counsel underscored
to the court the importance for Batalona to review these reports and
statements “word by word” and contended that Batalona was entitled to review
the discovery materials. The circuit court summarily rejected counsel’s
reasons, stating that “there’s very few information that any defendant really
needs to understand in terms of the details of a case.” But it was
Batalona’s inability to review the discovery that he asserts later played a
pivotal role in the trial. Batalona states in ground 10 of his petition that
although he wanted to testify, defense counsel told him that his testimony
would jeopardize defense counsel’s trial strategy because “Batalona was
prohibited from having any discovery.” Thus, while HRPP Rule 16(e)(3) may

                                                             (continued . . .)
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              i.    Right to Present a Complete Defense

            “Central to the protections of due process is the

right to be accorded a meaningful opportunity to present a

complete defense.”      State v. Tetu, 139 Hawaii 207, 219, 386 P.3d

844, 856 (2016) (quoting State v. Kaulia, 128 Hawaii 479, 487,

291 P.3d 377, 385 (2013)).       This court has recognized “the well-

established principle that ‘all defendants must be provided with

the basic tool[s] of an adequate defense.’”           Id. (alteration in

original) (quoting State v. Scott, 131 Hawaii 333, 352, 319 P.3d

252, 271 (2013)).

            Batalona contends in ground 8 that the discovery

materials consisted of crucial evidence, including witness

statements, indicating that he was not the shooter and that all

four robbers carried rifles.        Batalona states that because he

was denied access to copies of discovery materials, he had no

knowledge of the extent of the State’s evidence against him.

Without the discovery materials, Batalona asserts that he was

unable to exercise his right to defend himself with the

(. . . continued)

not “require” a defense counsel to provide a copy of discovery to a defendant
in every case, it was plainly imperative under the circumstances of this case
for Batalona’s counsel to have taken the necessary steps to provide the
discovery to Batalona, particularly when Batalona was charged with an offense
carrying a sentence of life imprisonment without parole.


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effective assistance of counsel.         Batalona submits that, had he

been provided access to discovery, he could have used the

knowledge gained to guide defense counsel toward viable defense

options, including the presentation of factual evidence that

would disprove that he was the shooter.

           As counsel for Batalona failed to act in response to

the amendment to HRPP Rule 16(e)(3), ground 8 presents a

colorable claim of ineffective assistance of counsel “because if

the facts therein were taken as true, they could change the

verdict” given the crucial information described by Batalona to

be in the discovery materials, of which he was not aware.             See

Wilton v. State, 116 Hawaii 106, 122, 170 P.3d 357, 373 (2007)

(citing Barnett v. State, 91 Hawaii 20, 26, 979 P.2d 1046, 1052

(1999)).   Defense counsel’s Declaration did not address

Batalona’s contentions in ground 8 except to state that any

omission on his part “did not substantially impair a meritorious

claim or defense, and/or resulted from a strategic or tactical

decision.”   Therefore, the circuit court erred in denying

without a hearing ground 8 of Batalona’s petition.

              ii.    Waiver of the Right to Testify

           Batalona asserts in ground 10 that he wanted to

testify but defense counsel repeatedly urged him not to do so.

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According to Batalona, defense counsel told him that his

testimony “would jeopardize [counsel’s] trial strategy” because

“Batalona was prohibited from having any discovery.”            Batalona

contends that defense counsel told him “the state will cut you

to pieces – just let me do my job.”         “But for counsel’s repeated

urging of Batalona not to testify,” Batalona continues, he would

not have waived his right to testify and his testimony could

have established a defense that he was not the shooter.27

            It is a fundamental constitutional guarantee that a

defendant in a criminal trial has a right to testify and a right

not to testify.     State v. Monteil, 134 Hawaii 361, 369, 341 P.3d

567, 575 (2014) (citing Tachibana v. State, 79 Hawaii 226, 900

P.2d 1293 (1995)).      Consistent with these rights, this court has

recognized that a defendant’s waiver of the right to testify

must be voluntary, knowing, and intelligent.           Tachibana, 79

Hawaii at 236, 900 P.2d at 1303 (citation omitted).            The

decision whether to relinquish the right to testify “must . . .

not [be] the product of coercion or undue influence.”             State v.


      27
            Batalona states that counsel never informed him about the “many”
eyewitness accounts indicating that all four robbers had rifles. According
to Batalona, he told counsel prior to trial that he modified an AR-15 rifle
for Dailey in exchange for proceeds from the robbery and that the modified
AR-15 rifle was used by Dailey at Waiahole Ranch and during the robbery.



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Silva, 78 Hawaii 115, 123, 890 P.2d 702, 710 (App. 1995)

(citation omitted), abrogated on other grounds by Tachibana, 79

Hawaii 226, 900 P.2d 1293.

            Batalona contends that defense counsel repeatedly

urged him not to testify because he had not been provided any of

the discovery materials and, as a result, counsel’s trial

strategy would be jeopardized.       If taken as true, the alleged

facts in ground 10 of the petition indicate that Batalona’s

waiver of the right to testify may not have been voluntary.

Defense counsel’s Declaration did not specifically address

Batalona’s contentions in ground 10 except to say that the court

conducted a colloquy pursuant to Tachibana and that any

privileged communications between counsel and Batalona would not

be disclosed without an order from the court.          Hence, ground 10

raises a colorable claim of ineffective assistance of counsel,

as Batalona’s waiver of the right to testify may have been “the

product of coercion or undue influence” because he had not been

provided a copy of the discovery due to defense counsel’s

failure to act in response to the amendment to HRPP Rule

16(e)(3).   See Silva, 78 Hawaii at 123, 890 P.2d at 710, see

Barnett v. State, 91 Hawaii 20, 26, 979 P.2d 1046, 1052 (1999)



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(citing HRPP Rule 40(f)).      Therefore, the circuit court erred in

denying without a hearing ground 10 of Batalona’s petition.

              2.    Batalona’s Other Claims for Relief

          In ground 19 of his petition, Batalona asserts that

defense counsel provided ineffective assistance on appeal by

failing to raise a claim that the circuit court erred in not

instructing the jury on the included offense of assault against

a police officer.    Batalona contends that there was ample

evidence at trial to permit a jury instruction on this offense.

          At trial, Batalona orally requested that the circuit

court instruct the jury on the offense of assault against a

police officer.28   The court denied the requested instruction on

the basis that the offense was not supported by the evidence.



     28
          The requested instruction read as follows:

                If and only if you find the defendant not guilty of
          Assault in the Second Degree, or are unable to reach a
          unanimous verdict as to this offense, then you must
          determine whether the defendant is guilty or not guilty of
          the included offense of Assault against a Police Officer.
                A person commits the offense of Assault against a
          Police Officer if he intentionally engages in conduct which
          is a substantial step in a course of conduct intended or
          known to cause bodily injury to a police officer who is
          engaged in the performance of duty.
                There are 4 material elements of this offense each of
          which the prosecution must prove beyond a reasonable doubt.
                These 4 elements are:
                1. That, on or about the 7th day of July, 1999, in
          the City and County of Honolulu, State of Hawaii, the
          Defendant intentionally engaged in conduct; and

                                                            (continued . . .)
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            HRS § 701-109(5) provides that the court is not

obligated to instruct the jury on an included offense “unless

there is a rational basis in the evidence for a verdict

acquitting the defendant of the offense charged and convicting

the defendant of the included offense.”          HRS § 701-109(5)

(1993).29   As applied in this case, the circuit court was

required to consider whether there was a rational basis in the

evidence that Batalona “[i]ntentionally, knowingly, or

(. . . continued)

                  2. That the Defendant’s conduct was a substantial
            step in a course of conduct intended or known by the
            Defendant to cause bodily injury to Frederick Rosskopf, a
            police officer; and
                  3. That the Defendant was aware, at the time, that
            Frederick Rosskopf was a police officer; and
                  4. That the Defendant acted intentionally or
            knowingly to cause bodily injury to Frederick Rosskopf
            because of the police officer’s performance of official
            duties.

While Batalona orally requested an instruction for “assault against a police
officer,” the instruction included language both for the substantive offense
and for the attempt offense.
      29
            Assault against a police officer is an included offense of
attempted murder in the first degree pursuant to HRS § 701-109(4) (1993).
Under HRS § 701-109(4), an offense is included in another when

            (a) It is established by proof of the same or less than all
            the facts required to establish the commission of the
            offense charged;
            (b) It consists of an attempt to commit the offense charged
            or to commit an offense otherwise included therein; or
            (c) It differs from the offense charged only in the respect
            that a less serious injury or risk of injury to the same
            person, property, or public interest or a different state
            of mind indicating lesser degree of culpability suffices to
            establish its commission.



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recklessly cause[d] bodily injury to [Officer Rosskopf] who

[wa]s engaged in the performance of duty” and that the statutory

requirements for attempted murder in the first degree were not

met.    HRS § 707-712.5(1)(a) (1993); HRS § 701-109(5).

             Batalona argued that the evidence showed that the jury

could reasonably find that he did not intend to shoot at Officer

Rosskopf but that his firing in Officer Rosskopf’s direction

recklessly placed the officer at risk of bodily injury.               The

evidence adduced at trial showed that Officer Rosskopf had

received abrasions as a result of the shooting that had occurred

outside of the bank.        In addition, Batalona was a range

instructor who taught shooting and thus, Batalona argued, a jury

could reasonably infer that he may have deliberatively shot in

the direction of, but not directly at, the officer.              Further,

according to the State’s witness, Talakai, Batalona informed him

that he was just trying to get away.           Thus, there was a rational

basis in the evidence for a verdict acquitting Batalona of

attempted murder in the first degree and convicting Batalona of

assault against a police officer.           See HRS § 701-109(5).

             On direct appeal, defense counsel did not challenge

the circuit court’s refusal to instruct on the offense of

assault against a police officer.           To determine whether defense


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counsel rendered ineffective assistance on appeal, a petitioner

must show that counsel did not raise an “appealable issue,”

which is an error or omission by counsel that results in the

withdrawal or substantial impairment of a potentially

meritorious defense.     Briones v. State, 74 Haw. 442, 465-66, 848

P.2d 966, 977 (1993).     If an appealable issue is omitted, the

question becomes whether, “in light of the entire record, the

status of the law, and the space and time limitations inherent

in the appellate process, a reasonably competent, informed and

diligent criminal attorney would not have omitted that issue.”

Domingo v. State, 76 Hawaii 237, 242, 873 P.2d 775, 780 (1994)

(citing Briones, 74 Haw. at 466-67, 848 P.2d at 977-78).

          In this case, there was a rational basis in the

evidence for the circuit court to instruct the jury on the

included offense of assault against a police officer.            The

failure by the court to submit this instruction to the jury was

an “appealable issue” in Batalona’s appeal.          However, in 2001,

while Batalona’s case was on direct appeal, this court held that

a trial court’s error in failing to give an appropriate

instruction on an included offense was harmless when the

defendant was convicted of the greater offense.          State v.

Haanio, 94 Hawaii 405, 415, 16 P.3d 246, 256 (2001), overruled

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by State v. Flores, 131 Hawaii 43, 314 P.3d 120 (2013).             The

decision in Haanio overruled State v. Kupau, 76 Hawaii 387, 879

P.2d 492 (1994), as to the effect of a trial court’s error in

not instructing on an included offense having a rational basis

in the evidence.     As applied to Batalona’s case, Haanio would

thus hold that the circuit court’s error in not instructing the

jury on assault against a police officer was harmless, given

that the jury convicted Batalona of attempted murder in the

first degree.30    Because Haanio was controlling law that was

recently established at the time of Batalona’s direct appeal,

Batalona has not shown a colorable claim that defense counsel’s

failure to challenge the circuit court’s refusal to instruct on

assault against a police officer constituted ineffective

assistance of counsel.31      Accordingly, the circuit court did not

err in denying ground 19 without a hearing.




     30
            The record reveals that counsel for Batalona was aware of Haanio
at the time he filed the direct appeal, as he questioned the harmless error
holding of Haanio in challenging the circuit court’s refusal to instruct on
two other offenses.
     31
            As set forth in the State’s answering brief, “Haanio was in turn
overruled by State v. Flores, 131 Hawaii 43, 314 P.3d 120 (2013).” The
Flores decision was issued after Batalona filed his petition, and thus we do
not address this decision in our consideration of the petition.



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           The remaining grounds for relief that are asserted in

the petition, which Batalona restates in his application, fall

into five groups.     First, in grounds 2, 4, and 20(c), Batalona

raises claims of ineffective assistance of counsel on appeal.32

Second, in grounds 3, 6, 9, 13, 14, 15, and supplemental grounds

23 and 24, Batalona raises claims of ineffective assistance of

counsel at trial as it relates to his state and federal

prosecution and the evidence at trial.33         Third, Batalona

challenges in grounds 5, 16, 17, and 21 counsel’s failure to




     32
            Ground 2 challenges the circuit court’s purported delay in
responding to a jury communication; however, the record lacks any showing of
prejudice. Ground 4 maintains that Batalona could not have been convicted of
count 17 because it is an included offense of counts 1 and 3; however, this
assertion is incorrect, see HRS § 701-109(4). Ground 20(c) submits that
counsel wasted space on a frivolous issue in the opening brief on appeal, but
Batalona does not indicate in this ground specific issues that should have
been argued instead.
     33
            Batalona’s allegation in ground 3 of improper dismissal of
federal charges is not properly before this court, and his prosecution in
federal and state court is not barred by HRS § 701-112 (1993). Ground 6
incorrectly contends that count 3 improperly joined two offenses in a single
count. Grounds 9 and 13 maintain that counsel failed to argue selective
prosecution; however, these grounds fail to assert a factual basis for a
showing of selective prosecution, see State v. Kailua Auto Wreckers, Inc., 62
Haw. 222, 225-27, 615 P.2d 730, 734-35 (1980). Ground 14 contends, without
requisite factual allegations, that counsel failed to challenge the State’s
use of Dailey’s testimony, which counsel purportedly knew to contain false
statements. Ground 15 also fails to present factual allegations in support
of Batalona’s contention regarding counsel’s failure to move to suppress the
AR-15 rifle magazine recovered from the bake shop van. Supplemental grounds
23 and 24 relate to the calling of witnesses and the presentation of evidence
at trial, but the grounds do not identify who counsel should have called and
how such witnesses’ testimonies would have helped the defense.



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contest the adequacy of several jury instructions.34            Fourth, in

grounds 20(a), 20(b), 20(d), 20(e), and 20(g), Batalona claims

that counsel failed to raise matters that were of “critical

importance” to his defense.35       And fifth, in grounds 7, 18, and

22, Batalona challenges matters relating to post-conviction, his

sentence of life imprisonment without parole, and a potential

retrial.36   Inasmuch as the aforementioned grounds do not raise a



     34
            Ground 5 contends that the circuit court failed to instruct the
jury that Batalona cannot be convicted of both count 1 and count 2; however,
Batalona was charged with count 1 under HRS § 708-840(1)(b)(ii), not HRS §
708-840(1)(b)(i). See State v. Ah Choy, 70 Haw. 618, 622, 780 P.2d 1097,
1100-01 (1989). Grounds 16, 17, and 21 challenge the jury instructions on
attempted murder in the first degree, proof beyond a reasonable doubt, and
criminal attempt; however, when read and considered as a whole, the
instructions were not prejudicially erroneous or insufficient.
     35
            Ground 20(a) incorrectly contends that the AK-47 rifle should not
have been taken inside the jury room during deliberations. See State v.
Robinson, 79 Hawaii 468, 473, 903 P.2d 1289, 1294 (1995). Ground 20(b) lacks
factual support for its assertion that the State did not have a good faith
basis for its PowerPoint presentation. Ground 20(d) asserts error in
counsel’s failure to call a ballistics expert without identifying who counsel
should have called and how that expert’s testimony would have been favorable
to Batalona’s defense. Ground 20(e) pertains to the sufficiency of the
evidence on the attempted first-degree murder conviction, upon which this
court has previously ruled. See State v. Batalona, No. 23820, 2003 WL
22311769, at *2 (Haw. Oct. 9, 2003) (SDO). Ground 20(g) erroneously
maintains that counsel failed to challenge the State’s ballistics evidence.
     36
            Ground 7 relates to Batalona’s inability to timely file a federal
habeas corpus petition, which is not properly before this court. Ground 18
maintains that Batalona’s sentence of life imprisonment without parole is
unlawful because the commutation provision is injudiciously applied and the
sentence is cruel and unusual. We do not address ground 18 at this time in
light of the remand for a hearing; therefore, ground 18 is dismissed without
prejudice. Finally, ground 22 incorrectly asserts that cumulative errors and
omissions would preclude instructions on lesser included offenses in a
retrial.



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colorable claim for relief, the circuit court did not err in

denying a hearing on these grounds.

           B. State’s Application for Writ of Certiorari

           In its application, the State contends that the ICA

erred in holding that the circuit court should have held a

hearing on ground 20(f) of Batalona’s petition on the basis that

there was a colorable claim that defense counsel was ineffective

for not attempting to secure the attendance of Hayme at trial.

At trial, the circuit court admitted as evidence the redacted

statement of Hayme, a co-participant in the robbery who was not

present to testify.      Hayme’s statement had the extremely

prejudicial effect of implicating Batalona in the offense of

attempted murder in the first degree while exculpating himself

as to involvement in that offense.         See infra.

           Under the Hawaii Rules of Evidence, hearsay is

generally inadmissible at trial unless it qualifies as an

exception to the hearsay rule.37        Hawaii Rules of Evidence (HRE)

Rule 802 (1993).     Hayme’s redacted statement was admitted as a


     37
            Pursuant to Rule 802 (1993) of the Hawaii Rules of Evidence
(HRE), “[h]earsay is not admissible except as provided by these rules, or by
other rules prescribed by the Hawaii supreme court, or by statute.” As
defined, “‘[h]earsay’ is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” HRE Rule 801 (1993).



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statement against interest.       An out-of-court statement may

potentially be admitted as a statement against interest under

HRE Rule 804(b)(3) (1993) if the declarant is unavailable as a

witness.    “Unavailability as a witness” includes, in relevant

part, situations in which the declarant “[i]s exempted by ruling

of the court on the ground of privilege from testifying

concerning the subject matter of the declarant’s statement.”

HRE Rule 804(a)(1) (1993).

           To demonstrate a declarant’s unavailability, a showing

must be made that good faith efforts were expended to locate and

produce the declarant.      State v. Moore, 82 Hawaii 202, 223, 921

P.2d 122, 143 (1996) (citing State v. Ortiz, 74 Haw. 343, 363,

845 P.2d 547, 556-57 (1993)).        In establishing good faith

efforts, the party “must confirm on the record at the time of

trial both the declarant’s unavailability and that vigorous and

appropriate steps were taken to procure the declarant’s presence

at trial.”38    Id. (quoting Ortiz, 74 Haw. at 363, 845 P.2d at

556-57).



      38
            While the caselaw in this jurisdiction has focused on the
prosecution as the party having the burden to locate and produce a declarant,
under the circumstances of this case, counsel’s duty to provide effective
representation included, as the ICA held, efforts to secure Hayme’s presence
at trial to allow Batalona to cross-examine him regarding his account of the

                                                             (continued . . .)
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            The admission of Hayme’s recorded statement was the

subject of some discussion at a hearing on the State’s first

motion in limine.      At that hearing, counsel for Batalona

informed the court that the defense wanted to call Hayme as a

witness to determine whether he would invoke his privilege

against self-incrimination.        Counsel’s duty to render effective

representation in this case included attempting to secure

Hayme’s attendance at trial so as to prevent the admission of

Hayme’s statement without the opportunity to cross-examine him.

The record indicates that counsel was aware that the court had

determined in the pretrial hearing to admit Hayme’s statement,

as counsel responded at trial that there was no objection to the

statement’s introduction into evidence except for what had been

discussed previously.       However, there is no indication that

defense counsel took any steps to procure Hayme’s attendance at

trial, whether by process or by other reasonable means.              Nor did

counsel establish on the record that he made a good faith

attempt to secure the presence of Hayme at trial.             Counsel’s




(. . . continued)

incident.   Because Hayme did not appear, his recorded statement was admitted
at trial.



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Declaration did not explain why he took no steps to obtain

Hayme’s presence at trial.

            The State argues that Hayme was unavailable to testify

at trial because he had personally invoked his privilege against

self-incrimination at the hearing that was held on July 31, 2000

and that the circuit court indicated as much at that hearing.

However, the transcript of the July 31, 2000 hearing is not part

of the record on appeal.      Therefore, it is unclear whether Hayme

was unavailable to testify at trial, as the ICA observed.

            Even assuming that Hayme invoked his privilege against

self-incrimination at the hearing and the court declared him

unavailable to testify, it was imperative for defense counsel to

undertake all feasible measures to secure Hayme’s live testimony

two days later at trial in order to cross-examine him.            Hayme as

part of his plea agreement with the federal government had

agreed to testify truthfully at any hearing or trial if called

to do so.    Additionally, Batalona contends that Hayme was in

federal custody during the course of his trial.          There is no

indication in the record, however, that defense counsel

exercised a good faith attempt to subpoena or otherwise procure

Hayme’s attendance at trial.      Engaging in such effort was

critical to Batalona’s defense, given that Hayme’s absence at


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trial allowed for the admission of Hayme’s recorded statement,

which was immensely prejudicial to Batalona.          See infra.

Defense counsel should not have assumed that because Hayme had

invoked his privilege against self-incrimination two days prior

to the admission of his statement, he would again invoke the

privilege if called to testify.       This assumption is even more

problematic in light of Hayme’s plea agreement that required him

to testify at any hearing or trial if called to do so and his

express agreement not to assert any privilege to refuse to

testify in a state trial involving a co-participant.

          The State cites to State v. McGriff, 76 Hawaii 148,

871 P.2d 782 (1994), in support of its argument that Hayme was

unavailable to testify, maintaining that, like the co-defendant

in McGriff, Hayme invoked his Fifth Amendment privilege against

self-incrimination.     However, in McGriff, the State served a

trial subpoena on the co-defendant, which the co-defendant’s

attorney moved to quash.      76 Hawaii at 153, 871 P.2d at 787.

The court denied the motion to quash, and the co-defendant

appeared at trial.    Id.   Upon being called as the State’s next

witness, the co-defendant took the stand and thereafter invoked

his Fifth Amendment privilege.       Id.   Unlike the co-defendant in

McGriff, Hayme was not served with a subpoena requiring his

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attendance at trial, and Hayme did not appear at trial to invoke

his Fifth Amendment privilege.

            A failure to subpoena Hayme may have substantially

impaired a potentially meritorious defense in this case.             The

State conceded and the evidence showed that Hayme fired his

weapon during the robbery, and as the ICA concluded, if Hayme

had testified, Batalona may have cast reasonable doubt on the

State’s theory that it was Batalona who shot at Officer

Rosskopf.    Accordingly, Batalona’s contention in ground 20(f) of

his petition that defense counsel was ineffective for failing to

secure Hayme’s attendance at trial raises a colorable claim for

relief.

            In addition to the unavailability prong that must be

satisfied before Hayme’s statement could have been admitted at

trial, the statement must qualify as a “statement against

interest.”    A statement against interest is one

            which was at the time of its making so far contrary to the
            declarant’s pecuniary or proprietary interest, or so far
            tended to subject the declarant to civil or criminal
            liability, or to render invalid a claim by the declarant
            against another, that a reasonable person in the
            declarant’s position would not have made the statement
            unless the declarant believed it to be true.

HRE Rule 804(b)(3) (emphases added).         In Williamson v. United

States, the United States Supreme Court held that the statement

against interest exception to the hearsay rule “does not allow

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admission of non-self-inculpatory statements, even if they are

made within a broader narrative that is generally self-

inculpatory.”    512 U.S. 594, 600-01 (1994).         Thus, each

statement within the broader narrative must be carefully

examined to determine if it is against the declarant’s interest.

Id. at 600-04.     If an individual declaration is not a statement

against the declarant’s interest, then that particular

declaration is not admissible.        Id.

           As noted, the record does not contain Hayme’s redacted

statement that was admitted at trial.         However, the parties’

closing arguments indicate that portions of Hayme’s statement

were not truly inculpatory.39       For example, Hayme’s statement

recounted that he did not shoot at Officer Rosskopf.            Hayme also

said in his statement that the person who was shooting at

Officer Rosskopf was mounted on top of the Blazer.            These

declarations implicated Batalona given Dailey’s testimony that

Batalona stood “in the door jamb on the passenger side of the

Blazer,” that Batalona’s weapon was pointed in the direction of

Officer Rosskopf’s car, and that Hayme and Matsunaga were the

last to exit the bank.      Additionally, Hayme stated that he did

     39
            We do not address the circumstances under which the recorded
statement was elicited with respect to its inculpatory nature.



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not fire his weapon until after shots were fired.            Hayme also

stated that he fired maybe two rounds “just in the air,” which

would have excluded him as the person shooting at Officer

Rosskopf.    Unquestionably, each of these statements within

Hayme’s narrative did not implicate Hayme as the person who

fired multiple rounds at Officer Rosskopf.          Rather, many of

Hayme’s statements in his broader account--whether standing

alone or in conjunction with other evidence introduced by the

State--directly implicated Batalona and were “non-self-

inculpatory statements.”       Williamson, 512 U.S. at 600-01.

Therefore, the admission of Hayme’s statement as a statement

against interest under HRE Rule 804(b)(3) raises a colorable

claim for relief.40

            The receiving into evidence of Hayme’s recorded

statement may also have violated the federal and state

constitutions.     Batalona contends in ground 20(f) that he had

state and federal rights to confront Hayme at trial and that

     40
            HRE Rule 804(b)(3) is identical with Federal Rules of Evidence
(FRE) Rule 804(b)(3). The Advisory Committee Notes of FRE Rule 804(b)(3)
warn that “a statement admitting guilt and implicating another person, made
while in custody, may well be motivated by a desire to curry favor with the
authorities and hence fail to qualify as against interest.” Hayme’s recorded
statement was provided to investigators in the presence of the Assistant
United States Attorney who was prosecuting him in federal court. The
statement was provided the day after Hayme reached a plea agreement with the
United States Attorney’s Office.



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confrontation of Hayme would have allowed the jury to assess

Hayme’s truthfulness.     This court has recognized that the Sixth

Amendment to the United States Constitution and article I,

section 14 of the Hawaii Constitution “guarantee criminal

defendants the right to confront and cross-examine adverse

witnesses.”     State v. Haili, 103 Hawaii 89, 103, 79 P.3d 1263,

1277 (2003) (citing Moore, 82 Hawaii at 222, 921 P.2d at 142).

“The right of confrontation affords the accused both the

opportunity to challenge the credibility and veracity of the

prosecution’s witnesses and an occasion for the jury to weigh

the demeanor of those witnesses.”        State v. Sua, 92 Hawaii 61,

70, 987 P.2d 959, 968 (1999) (quoting Ortiz, 74 Haw. at 360, 845

P.2d at 555).     Thus, the right to cross-examine one’s accuser is

chief among the interests secured by the confrontation clause.

McGriff, 76 Hawaii at 155, 871 P.2d at 789 (citing Ohio v.

Roberts, 448 U.S. 56, 63 (1980)).

          For testimonial hearsay to be admissible, the

confrontation clause demands a showing that the declarant is




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unavailable.41    State v. Fields, 115 Hawaii 503, 513, 168 P.3d

955, 965 (2007) (citing Crawford v. Washington, 541 U.S. 36, 59

(2004)).   The discussion set forth supra regarding

unavailability is fully pertinent here.          To reiterate, the

record fails to establish that defense counsel made a good faith

attempt to obtain Hayme’s attendance at trial.           Nor did defense

counsel confirm on the record at trial that Hayme was

unavailable or that vigorous steps had been taken to procure his

attendance at trial.      And, as the ICA found, the record also

does not indicate that the State made a good faith attempt to

secure Hayme’s attendance at trial.

           The confrontation clause restricts the admission of

testimonial hearsay in a second way.         At the time of Batalona’s

trial, the standard pursuant to Roberts, 448 U.S. 56, was as

follows: “[u]pon demonstrating that a witness is unavailable,”

the party must show that the statement to be admitted “bear[s]

adequate indicia of reliability.”         Sua, 92 Hawaii at 71, 987

P.2d at 969.     Reliability may be inferred if the statement falls

within a firmly rooted exception to the hearsay rule, or it “may


     41
            Statements provided as a result of police interrogations are
testimonial under the Sixth Amendment. Crawford v. Washington, 541 U.S. 36,
68 (2004).



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be demonstrated ‘upon a showing of particularized guarantees of

trustworthiness.’”      Id. (quoting Ortiz, 74 Haw. at 361, 845 P.2d

at 556).   In 2004, the United States Supreme Court held in

Crawford that for testimonial hearsay to be admissible the

confrontation clause demands a showing of unavailability and a

prior opportunity for cross-examination.          541 U.S. at 68.      Thus,

under the second part of the confrontation analysis, instead of

determining whether an unavailable declarant’s statement bears

“adequate indicia of reliability,” the analysis is whether the

defendant had a meaningful opportunity to cross-examine the

declarant about the statement.42        See id.

           If the Roberts test is applied to Batalona’s case, the

circumstances under which Hayme’s statement was made and the

non-self-inculpatory statements within its general narrative may

raise a question as to the reliability of Hayme’s statement.                 If

the Crawford test is applicable, the record does not indicate

that Batalona had a prior opportunity to cross-examine Hayme

about his statement.      Thus, under either test, Batalona has

raised a colorable claim for relief.


     42
            This court has not addressed the applicability of the Crawford
rule to cases in which the underlying conviction was already final at the
time the Crawford decision was rendered.



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          In sum, the record does not indicate that defense

counsel exercised a good faith attempt to procure Hayme’s

attendance at trial, which was critical to Batalona’s defense.

If counsel failed to do so, such failure may have resulted in

the substantial impairment of a potentially meritorious defense

because, if Hayme had testified, Batalona may have cast

reasonable doubt on the State’s theory that Batalona was the

person who fired multiple rounds at Officer Rosskopf.            In

addition, as a result of Hayme’s absence at trial, his recorded

statement--although only partly self-inculpatory and at the same

time extremely prejudicial to Batalona--was admitted as a

“statement against interest,” and it may also have been admitted

in violation of Batalona’s right to confrontation.           Counsel’s

Declaration did not adequately respond to Batalona’s claims

regarding the failure to obtain Hayme’s presence at trial.

Therefore, the ICA correctly concluded that the portion of

ground 20(f) of Batalona’s petition regarding Hayme’s statement

raises a colorable claim for relief that warrants a hearing

before the circuit court.

                              V. CONCLUSION

          Accordingly, we affirm the ICA’s Judgment on Appeal

insofar as it held that grounds 1 and 20(f) of Batalona’s


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petition raise colorable claims for relief.          We vacate the ICA’s

Judgment on Appeal in its affirmance of the circuit court’s

Order denying the petition with regard to the following grounds:

as to grounds 8 and 10, Batalona has raised colorable claims for

relief such that he is entitled to a hearing, and as to ground

18 it is dismissed without prejudice.        We otherwise affirm the

ICA Judgment on Appeal to the extent that it denied a hearing on

the remaining grounds in the petition.         This case is remanded to

the circuit court for further proceedings consistent with this

opinion.

Albert Batalona                          /s/ Sabrina S. McKenna
pro se
                                         /s/ Richard W. Pollack
Brandon H. Ito
for respondent                           /s/ Michael D. Wilson




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