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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-XX-XXXXXXX
                                                              19-JUN-2020
                                                              12:36 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                           STATE OF HAWAI‘I,
                          Plaintiff-Appellee,

                                    vs.

                       KOMA KEKOA TEXEIRA, JR.,
                         Defendant-Appellant,

                                    and

                         CLAYTON KALANI KONA,
                          Defendant-Appellee.


                            SCAP-XX-XXXXXXX

       APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
             (CAAP-XX-XXXXXXX; CR. NO. 5PC161000398)

                              JUNE 19, 2020

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

                OPINION OF THE COURT BY POLLACK, J.

          The defendant in this case was convicted of murder in

the second degree.    At trial, he sought to introduce evidence
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tending to show that a third-party committed the offense, but

the trial court excluded the evidence.         This appeal contends

that the evidence was improperly excluded.         The defendant also

challenges the trial court’s admission into evidence of a

confession letter allegedly written by him because of its late

disclosure to the defense, arguing that the State had control

over the letter through a cooperating co-defendant nine months

before the disclosure was made.       Lastly, the defendant argues

that DNA results showing his presence at the crime scene were

improperly admitted at trial, as the State failed to show that

the instruments used to conduct the DNA analyses were operated

in compliance with the manufacturer’s recommendations.

          Upon review, we hold that the timing of the State’s

disclosure did not require the exclusion of the letter at trial.

We also conclude that a sufficient foundation to admit the

results of the DNA analyses was established to allow their

admission into evidence.      Finally, we hold that third-party

culpability evidence was erroneously excluded, but the error was

harmless beyond a reasonable doubt under the circumstances of

this case.

                           I.     BACKGROUND

                A.      Arrest and Pre-Trial Motions

          On the night of October 31, 2016, Jon Togioka was

fatally shot by a .22-caliber firearm near Hanapēpē on the

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island of Kaua‘i.     Kaua‘i Police Department (KPD) officers later

arrested Koma Texeira Jr., Trish Flores, Brandon Pagala, Robert

“Bobby” Dela Cruz, and Clayton Kona in connection with Togioka’s

death.   Texeira was subsequently indicted for murder in the

second degree in violation of Hawai‘i Revised Statutes (HRS)

§ 707-701.5,1 carrying or use of a firearm in commission of a

separate felony in violation of HRS § 134-21,2 and two counts of

ownership of possession prohibited in violation of HRS § 134-

7(b).3   Kona was also charged in the same indictment with

multiple offenses.4     Prior to trial, Kona entered into a plea


     1
           HRS § 707-701.5(1) (2014) provides as follows:

           (1) Except as provided in section 707-701, a person commits
           the offense of murder in the second degree if the person
           intentionally or knowingly causes the death of another
           person.
     2
           HRS § 134-21 (2011) provides 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[.]
     3
           HRS § 134-7 (2011) provides in relevant part as follows:

           (b) No person who is under indictment for, or has waived
           indictment for, or has been bound over to the circuit court
           for, or has been convicted in this State or elsewhere of
           having committed a felony, or any crime of violence, or an
           illegal sale of any drug shall own, possess, or control any
           firearm or ammunition therefor.
     4
            Kona was charged as an accomplice to murder in the second degree
in violation of HRS § 707-701.5, carrying or use of firearm in commission of
separate felony in violation of HRS § 134-21, two counts of ownership or
possession prohibited in violation of HRS § 134-7(b), and place to keep
pistol or revolver in violation of HRS § 134-25.



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agreement with the State in which he pleaded guilty only to

hindering prosecution in the first degree in violation of HRS §

710-1029 and ownership or possession prohibited in violation of

HRS § 134-7(b), in exchange for, inter alia, testifying at

hearings, trials, re-trials following appeal, or other

proceedings connected with Togioka’s death.

      1. Motion to Determine Voluntariness of Confession Letter
                      Allegedly Written by Texeira

            On February 13, 2018, the State filed a motion in the

Circuit Court of the Fifth Circuit (circuit court) to determine

the voluntariness of statements that Texeira allegedly wrote in

a letter while in jail.5      In a declaration accompanying its

motion, the prosecutor stated that Texeira wrote a letter saying

he shot Togioka in self-defense and gave that letter to Kona.6

Texeira filed a memorandum in opposition in which he argued,

inter alia, that the State had violated Hawai‘i Rules of Penal

Procedure (HRPP) Rule 16 because the State had not produced the

letter to the defense until February 9, 2018, which was one

month before trial and 280 days after the State was informed of




     5
            The Honorable Judge Randal G.B. Valenciano presided over all
proceedings in this case.
      6
            The letter stated that Togioka found a gun belonging to Texeira
under the driver’s seat of Texeira’s car and began threatening him with the
weapon. A struggle ensued and resulted in Texeira fatally shooting Togioka.




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its existence.7     Texeira maintained that on May 5, 2017, Kona

gave a statement to KPD in which he stated that Texeira wrote


     7
          HRPP Rule 16 (2012) provides in pertinent part as follows:

          (b)     Disclosure by the prosecution.

                  (1) Disclosure of Matters Within Prosecution’s
                  Possession. The Prosecutor shall disclose to the
                  defendant or the defendant’s attorney the following
                  material and information within the prosecutor’s
                  possession or control:

                        . . . .

                        (ii) any written or recorded statements and the
                        substance of any oral statements made by the
                        defendant, or made by a co-defendant if
                        intended to be used in a joint trial, together
                        with the names and last known addresses of
                        persons who witnessed the making of such
                        statements;

                        . . . .

          (e)     Regulation of Discovery.

                  (1) Performance of Obligations. Except for matters
                  which are to be specifically designated in writing by
                  defense counsel under this rule, the prosecution
                  shall disclose all materials subject to disclosure
                  pursuant to subsection (b)(1) of this rule to the
                  defendant or the defendant’s attorney within ten (10)
                  calendar days following arraignment and plea of the
                  defendant. The parties may perform their obligations
                  of disclosure in any manner mutually agreeable to the
                  parties or by notifying the attorney for the other
                  party that material and information, described in
                  general terms, may be inspected, obtained, tested,
                  copied or photographed at specified reasonable times
                  and places.

                  (2) Continuing Duty to Disclose. If subsequent to
                  compliance with these rules or orders entered
                  pursuant to these rules, a party discovers additional
                  material or information which would have been subject
                  to disclosure pursuant to this Rule 16, that party
                  shall promptly disclose the additional material or
                  information, and if the additional material or
                  information is discovered during trial, the court
                  shall also be notified.
                                                             (continued . . .)


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two letters confessing to Togioka’s murder while they were both

in jail.    Subsequently, Kona’s attorney discussed the contents

of the letter purportedly written by Texeira in a May 19, 2017

interview with investigating officers.           Accordingly, Texeira

argued that the State was aware of the letter and its nature on

that date.

            Additionally, Texeira contended that Kona was

negotiating a plea deal prior to his interviews and thus was an

agent of the State before May 19, 2017.           Because the letter was

in the possession of a State agent as of May 19, 2017, Texeira

argued, the State had an obligation to obtain the letter in a

timely manner and disclose its contents to the defense.

Alternatively, Texeira maintained that Kona became a state agent

as soon as he entered into a plea deal on June 2, 2017, and thus

the State had control over the letter at that time.            The State’s

failure to produce the letter until a month before trial was a

violation of HRPP Rule 16, Texeira concluded, and therefore the

State should be precluded from introducing the letter into

evidence.

            The State responded that it provided the transcript of

Kona’s interview to the defense on May 23, 2017, and provided


(. . . continued)

HRPP Rule 16 (2012) (some formatting omitted).



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the second letter allegedly written by Texeira upon receiving it

and thus did not violate HRPP Rule 16(b)(1)(ii).           The State

further argued that Kona was not a government agent under its

control.

           On February 27, 2018, the circuit court heard

arguments and testimony on the State’s motion.          In addition to

the arguments made in his memorandum in opposition, Texeira

contended that he did not write the letter and that it was

actually written by Kona.      Texeira maintained that the signature

was suspect because it was at the top of the page and had

hesitation marks that indicated it was someone trying to copy a

signature.   Texeira also maintained that there was no way to

determine the letter’s authenticity or have fingerprint or

handwriting analysis conducted because it was too close to trial

to retain an expert, and that he should not be compelled to

choose between a fair trial and his right to a speedy trial.

The State responded that it provided the letter as soon as

Kona’s attorney provided it to the State, and that Kona would

testify during the hearing as to the letter’s authenticity.

           Kona testified at the hearing that, after being

arrested in connection with the death of Togioka, he had been

placed in the same cell as Texeira in November 2016.            During

this time, Texeira wrote a letter confessing to the murder and

stating that Kona had nothing to do with it.          Kona said that he

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personally saw Texeira write and mail the letter to Texeira’s

attorney.   According to Kona, this letter was apparently not

useful for Kona’s defense, so Texeira wrote a second letter.

Kona stated that he also saw Texeira write the second letter and

that he did not force him to write the letter.          Texeira gave him

a copy of the second letter, which Kona gave to his own

attorney.   When shown a copy of the second letter, Kona said

that it was a true and accurate copy of the letter he saw

Texeira write.    He believed the second letter was written about

a month after he had been arrested.        Kona further testified that

neither the police nor the prosecution asked him to get Texeira

to confess to Togioka’s murder and he told the State about the

letter prior to signing a plea deal on June 2, 2017.

            Following the hearing, the circuit court issued an

order granting the State’s motion to determine voluntariness.

The court found that in December 2016, Texeira voluntarily wrote

a second letter, witnessed but not directed by Kona, after

discovering that his first letter would not help Kona.            The

court found Kona was not an agent of the State when Texeira gave

him the second letter and was not directed to obtain a

confession from Texeira.      The court thus permitted the second




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letter to be admitted into evidence.8          The court did not rule

upon Texeira’s contention that the second letter had been

untimely disclosed.

     2.    Texeira’s Motion in Limine to Exclude DNA Evidence

           Prior to trial, Texeira filed a motion in limine

seeking the exclusion of DNA evidence at trial based on the

unreliability of the procedures that the State’s DNA expert had

used to obtain the DNA results.           At the hearing, the State

called Emily Jeskie, an employee of Sorenson Forensics

(Sorenson), a private DNA testing laboratory that had conducted

DNA tests on buccal swabs and cigarette butts recovered at the

crime scene.9    Jeskie testified that each Sorenson lab employee

is proficiency tested every six months by an outside agency and

Sorenson is accredited by the American Society of Crime

Laboratory Directors International (ASCLD) accreditation board.

Jeskie explained that the accreditation process entails ASCLD

auditing the laboratory, ensuring that the tests are performed

to standard, and verifying that the employees are competent to

perform the tests.      The competency testing is conducted by

      8
            The court redacted two lines in the letter, starting with the
sentence “I lied to detectives.” Further, the court permitted the State to
reference that the first letter was written, but it excluded the contents of
any communications between Texeira and his attorney.
      9
            Jeskie, who testified via videoconference, stated that she had a
bachelor of science in molecular biology from Brigham Young University, had
participated in a six-month training program in forensic DNA casework, and
had testified in approximately 48 cases as an expert in DNA testing.



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Collaborative Testing Services (CTS).         Sorenson has never lost

its accreditation, been placed on probation, or had its

accreditation withheld or suspended, Jeskie testified.

            Jeskie further explained that each test is subject to

a “control,” which confirms that the testing process worked

correctly and did not have contamination.          Sorenson has positive

controls used in each step of its testing process to indicate

what the results should be and if the control “doesn’t type

correctly,” then it shows there was a problem in the testing.

            A second hearing on Texeira’s motion was conducted to

allow the State to supplement the record regarding the

reliability of the DNA evidence.10        Jeskie testified that every

machine used by Sorenson is required to be “validated” under the

Federal Bureau of Investigation’s (FBI) quality assurance

standards.    Validation entails a study conducted to ensure that

the machine is reliable and its results are reproducible.              The

validation process shows whether each test was done correctly

and if there was contamination.        Validation is done at each step

of the testing to ensure that the control was passed.             The FBI

quality assurance standards require Sorenson to validate its

equipment and train its employees using certain methods.               Jeskie

explained that all employees are required to complete a standard

     10
            All of the witnesses at the second hearing testified via
videoconference.



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training program on the equipment and that the training program

and validation method Sorenson uses is reviewed as part of the

ASCLD accreditation process.

          Each machine and piece of equipment is subject to

controls to ensure they are working properly and are regularly

maintained, Jeskie testified.       Logs are kept of the maintenance

and if a machine is not in working order, it is taken out of

commission.    The State introduced into evidence a certificate of

authenticity and a maintenance record for the machines used to

test the DNA evidence to show that they were in proper working

order at the time the analyses of the evidence in this case were

conducted.    The maintenance record was a 48-page log that

detailed equipment maintenance on several machines dating as far

back as June 24, 2011, and through February 2018.           The log

recorded daily, weekly, monthly, and annual maintenance,

performance checks, error corrections, adjustments, preventative

maintenance, calibrations, and time periods when the machines

were removed from and placed back into service.

          The State called several other Sorenson employees that

were involved in analyzing the DNA evidence in this case.             All

of the witnesses testified that the machines utilized to conduct

the DNA tests were in working order and that they conducted the

testing in compliance with Sorenson’s standard training program

and operating procedures.      Several Sorenson employees testified

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that Sorenson did not itself manufacture any of the machines

they used and that they did not know the manufacturer’s

identity.    The witnesses also testified that the machines were

not manufactured by ASCLD, CTS, or the FBI.

            Texeira maintained that the DNA evidence should not be

admitted at trial because the State could not lay a proper

foundation establishing that the equipment used to conduct the

analyses produced accurate results, unless the user was trained

to operate it in the manner recommended by the machine’s

manufacturer.   Since the State had not adduced any evidence that

the machines Sorenson used to analyze the DNA evidence were

operated in compliance with the manufacturer’s recommendations,

Texeira contended that none of the results were proven to be

reliable.

            In its written order denying the motion, the circuit

court found that the Sorenson employees used valid and reliable

techniques to obtain DNA profiles, the instruments were in

proper working order, and the employees were trained to use, and

did use, accepted procedures.       The court recognized Jeskie as an

expert in DNA testing and profiling and additionally found that

the use of DNA evidence to generate a DNA profile and identify a

person is reliable science, the DNA test results were relevant

to the issue of the identity of the perpetrator, and the results

would assist the trier of fact.

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                       B.     Trial Proceedings

          Leana Contrades, Kona’s girlfriend and the mother of

his daughter, testified that at the time of the events in

question she was living at Kona’s house along with five other

people, including Texeira.      Contrades stated that at about 9:00

a.m. on October 30, 2016, she went to Wailua with Kona and

Roberta Bactad, a relative of Kona’s, and they returned to their

home sometime that evening.      The next day, October 31, Kona

slept until about 6:00 p.m.      Contrades testified that Texeira

attempted to speak to Kona several times that day but was unable

to do so while he was sleeping.       When Kona woke up, she told him

that Togioka had stolen a cell phone from Kona’s house.            Kona

was upset by this, and he asked her to “find out where [Togioka

was] and tell him to come over.”         Contrades called Texeira on

Kona’s cell phone and told him that Kona wanted Togioka to come

to their house and “settle it.”

          Togioka arrived at the house shortly after, and

Contrades heard Kona say, “Where’s the phone?”          She saw Kona

“have [Togioka] against the wall, chest against the wall and his

hand behind his back,” while Togioka repeatedly said that he did

not steal the phone.     Contrades then went into her bedroom, and

Kona came in upset and angry.       According to Contrades, Texeira

entered the room and asked Kona, “So what do you want to do

about it?” and Kona said, “just get him out of here.”            After

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this exchange, Kona, Contrades, and their infant daughter went

to a Halloween party around 7:00 p.m.11         They stayed at the party

until around 10:00 p.m., dropped Kona’s cousin off in Kekaha,

and then went home.12     Kona left for 20 minutes to return

Bactad’s car, which they had borrowed.

            Contrades stated that Kona kept a firearm in the

house.    Specifically, she saw one gun and three different types

of bullets in the house prior to October 31, 2016.            Also, a

couple of days after October 31, Trish Flores and Brandon Pagala

came to Kona’s house around 3:00 a.m.         Contrades described

Flores as “paranoid” and stated that she “didn’t seem herself.”

            Kapena Wilson, a KPD police officer who investigated

Togioka’s murder, testified on behalf of the State.            During

cross-examination, defense counsel asked, “do you know if Trish

Flores was arrested in connection with this case?”            The State

objected on the grounds of “legitimate tendency,” arguing that

Texeira was “starting to put it on somebody else without any


     11
            Dina Akutagawa, who was living with Kona’s brother during October
and November 2016, testified that Kona was at the Halloween party from 8:00
to 10:00 p.m. At the beginning of the Halloween party, Akutagawa stated,
Kona had a scrape on his middle right hand knuckle which Kona said came from
punching Togioka.
     12
            Bactad testified that on October 31, 2016, Kona borrowed her car
around 7:00 p.m. and returned it around 10:30 p.m. Kona stayed at her house
until 11:00 or 11:30 p.m. and then went straight home. Texeira came to her
house while Kona was there but left after saying “he had something to do.”
Bactad testified that it would only take about ten minutes to walk between
her house and Kona’s, and that she knew Kona went straight home because she
talked to Contrades that evening.



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connection to this.”     Defense counsel responded that Flores

“gave a fake motive and was arrested with .22-caliber bullets,”

which were the same caliber as the bullets that killed Togioka,

and Contrades had testified that Flores came over to Kona’s

house soon after the killing and was acting strangely.            The

court sustained the objection but added that if Flores became a

suspect, Texeira could recall Wilson.

          Brandon Pagala was also called as a witness by the

State.   During cross-examination, defense counsel attempted to

ask Pagala about his arrest on November 2, 2016, but the State

objected, arguing “there’s been no established legitimate

tendency . . . . [h]e’s getting into the area of [Pagala] having

a firearm and bullets.”     Defense counsel responded, “we’re not

saying he shot him.     We’re saying he’s part of a group of people

covering up who shot him.      And the fact that they had

.22-caliber bullets, which is the caliber used in this case, the

day after the body was found is relevant to show that.”            The

State replied, “it’s already an inference that [] he’s been

arrested for something.     But we don’t need to get into what the

reasons why he was arrested is.”         The court ruled that Texeira

would be allowed to show “that [Pagala] was arrested,” but the

inquiry would have to end there.

          Pagala testified that he had been friends with Kona

for over 18 years but did not hang out with him.           He was friends

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with Flores, Pagala explained, and hung out with her regularly.

Defense counsel attempted to ask Pagala if “some people

fear[ed]” Flores or if she “can get violent,” but the court

sustained the State’s objection.           Counsel argued that he should

be allowed to ask these questions:

            Well, that all goes to the fact that these people do fear
            certain people, and it’s not my client, and that those
            people were involved with having .22 caliber bullets at the
            time, had a problem with Jon Togioka, and all associated
            with Clayton Kona, who was the one who punched Jon Togioka
            before his death, and that if they’re -- so who they blame
            is going to be away from their group and blame the new guy,
            the smallest guy, the -- or the youngest guy anyway. And
            that there are certain people who are feared -- my client’s
            not one of them -- and that that’s why they would do all of
            this.

The court ruled that defense counsel could ask Pagala if he was

involved in the conspiracy, and if Pagala admitted involvement,

then counsel could ask further questions.13

            Dela Cruz testified that in October and November 2016,

he was actively using crystal methamphetamine.            On October 31,

2016, Texeira asked Dela Cruz to ride with him to “go see []

Togioka.”     Texeira told him to bring a bat, but he did not do

so.   Dela Cruz rode in the front passenger side of Texeira’s

vehicle, and when they found Togioka he got into the backseat.

The three smoked methamphetamine and cigarettes before going to

Kona’s house.     When they arrived, Texeira and Togioka went in,

but he did not after Kona told him not to.

      13
            Defense counsel commented that no one would admit they were in a
conspiracy, and counsel did not ask Pagala if he was in one.



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           Texeira then drove the three of them to Burns Field,

an area near the airport in Hanapēpē.        Togioka said he wanted to

go home, but Dela Cruz encouraged him to stay with them and

“just cruise.”    Dela Cruz testified that around 8 or 9 p.m.,

Texeira and Togioka got out of the car; he stayed in because

“[Texeira] wanted to talk to [Togioka] only.”          Dela Cruz turned

the stereo up loudly because he didn’t want to listen to the

conversation, but he was still able to hear Togioka say, “[I]

never do anything.”     He then heard a gunshot coming from in

front of the vehicle towards the driver’s side, followed by two

or three more.    Immediately after the first gunshot, Dela Cruz

heard Togioka yell “don’t shoot me” and “you shot me.”            He saw

Togioka was face down on the ground, 15 to 20 feet in front of

the car.   Dela Cruz admitted that he did not tell the police or

grand jury about Togioka’s statements prior to trial.            He stated

that he did not shoot Togioka nor did he see Texeira shoot

Togioka.

           Dela Cruz testified that he did not see Texeira or

Togioka with a gun when they exited the vehicle, but when

Texeira came back to the car he placed a “revolver with a long

barrel” on the driver side floor.        They then drove away, and

Texeira told Dela Cruz that he shot Togioka because “he had to.”

Dela Cruz stated that he did not know Texeira was going to shoot



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Togioka and that he didn’t go to the police because he was

scared.

             Kona testified that Texeira was living with him on

October 29, 2016, when Togioka came to his house.              Togioka got

into a fight with a housemate that Kona broke up, but he later

learned that Togioka re-incited the fight away from Kona’s

house.     This upset Kona because he thought he had settled

everything, so he asked Texeira to bring Togioka back to the

house.     When asking him to do this, Kona admitted, he “probably”

said something along the lines of “I like shoot this fucker” to

Texeira.     Kona testified that he told Texeira to bring Togioka

to the river behind his house.          As he went to meet Texeira, he

received a text message from him stating, “I wouldn’t shoot just

yet.    He get interesting things to say.”          Kona testified that he

had a .22-caliber revolver belonging to Texeira on him at the

time, which he shot into the air.           The shot scared Togioka, but

they settled their problems and went fishing together.               Kona

stated that he put the gun on a shelf at his house.

             On October 31, 2016, Kona woke up to learn that

Togioka was accused of taking a housemate’s phone.              He doubted

that Togioka had the phone because they had been fishing

together all night.        He asked Contrades to contact Texeira in

order for him to bring Togioka back to “clear up this phone

situation.”      Texeira brought Togioka to the house and Togioka

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attempted to lie and say the phone was his, so Kona punched and

wrestled with him.    Contrades broke up the fight, Kona stated,

and Texeira made Togioka leave the house.         Texeira then asked

him “if I seen his gun or if I knew where his gun was,” and he

told Texeira where to find it.       Later that evening at the

Halloween party, Texeira called Kona and asked what he wanted

done about Togioka.     Kona testified that he said, “I don’t

care,” and hung up without giving any directions.           Later, but

still at the Halloween party, he received a text message from

Texeira saying, “Aw pau,” which meant “done.”          After the party,

he returned the car to Bactad’s house and then went home with

Texeira, who arrived at Bactad’s house around the same time.

Texeira “started to say something about the gun was–-misfired at

first,” Kona explained, but he cut Texeira off.          Kona stated

that the revolver tends to “jam from time to time.”

          Kona testified that he first learned that Togioka had

been killed on November 1, 2016.         That day, Texeira told Kona

that he hid the gun under the hood of a white Ford truck on

Kona’s property.    Kona retrieved the gun and hid it in a pipe

down by the river.    Kona said that he didn’t initially go to the

police because he was afraid of Texeira.         He was questioned by

the police on November 3, 2016, and denied any involvement with

Togioka’s death.    Kona admitted that he lied to the officers;

specifically he told them that he hadn’t seen Togioka on October

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31, 2016, that he did not hit Togioka on October 31, 2016, and

that he did not own or possess a firearm and one was not on his

property.    On November 4, 2016, after he had been arrested and

charged as an accomplice to the murder charge, Kona showed the

police where the firearm was hidden on his property.            Kona

stated that he subsequently signed a plea agreement in which he

pled guilty to hindering prosecution in the first degree and

ownership or possession prohibited of a firearm.           Kona admitted

that at the time he made the plea agreement he was facing a

possible life sentence, but the sentence was reduced to a

maximum of ten years; it ultimately could be five years or even

probation based on his cooperation with the State.

            While he was incarcerated at Kauaʻi Community

Correctional Center (KCCC) with Texeira, Pagala, and two other

men, Kona stated that Texeira confessed to killing Togioka.

Texeira said that he, Togioka, and Dela Cruz were looking to buy

drugs but were unsuccessful.      Texeira stated that he had asked

Togioka about the phone, but Togioka denied having it.            Kona

testified that Texeira said that he then shot at Togioka but the

gun misfired, so Texeira said he was joking.          Texeira told him

that he pulled the trigger again, shooting Togioka in the arm

and causing him to collapse to the ground.         Texeira said that

Togioka yelled to Dela Cruz for help but Dela Cruz stayed in the



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car, and that he shot Togioka in the head.         According to Kona,

Texeira told this story several times in a bragging manner.

          Kona also testified that Texeira wrote two letters

containing these details, the first of which Texeira sent to his

attorney to help Kona in his case.        Texeira was neither forced

nor told to write the letters, Kona said.         Texeira gave him the

second letter, which Kona passed on to his own attorney.

Texeira knew this letter would be given to his attorney, Kona

testified, and Texeira wrote the letter “because he felt bad

that I was in there for something I didn’t even do.”            Kona

stated that Texeira made the statements about killing Togioka

and wrote the letters before he had a cooperation agreement with

the prosecution.

          During his direct examination, Pagala testified about

his confinement in the same cellblock as Texeira and Kona at

KCCC.   While they were in jail, Texeira casually told him and

Kona several times what occurred.        According to Pagala, Texeira

told him that he attempted to shoot Togioka but that the gun

would not fire.    Texeira then told him that he shot Togioka in

the hand and head.    After being shot in the hand, Togioka asked

Dela Cruz, who was in the car, for help.         Pagala did not

remember when Texeira made these statements, but he told the

police about them several months after they were made.            He never

discussed the killing with Kona, but he did see Texeira write

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letters about the case while in jail.           Pagala said that he

couldn’t remember what he and Kona talked about when they were

in jail and only remembered some of the things Texeira said to

him.    He stated that he does not have memory problems, but he

does forget things and did not remember saying some of the

things he said in his police interview.

             Ronnie Schmidt, a friend of Kona, testified that he

was working on Kona’s house on October 31, 2016, around 4 or 5

p.m.    He was working in an area behind the house where he found

a .22-caliber revolver on a shelf.           He played with the gun

before wrapping it in a cloth and putting it down on a table

near his work crew.        Texeira came out of Kona’s house looking

for the weapon, so he gave it to him.           Texeira then got into a

car with Togioka and Dela Cruz, Schmidt stated, and the three

drove off.14

             FBI Special Agent Edwin Nam testified as an expert in

the field of historical cell site analysis.             He testified about

data collection techniques used to determine where a cell phone

was at various points in time, including cell tower coverage and

call detail records.        Nam testified that he received Verizon

       14
            Flores was granted transactional immunity and was initially
expected to testify. During the course of trial the State filed an ex parte
motion to withdraw Flores’ immunity, which the court granted. Flores’
attorney then informed the court that she would invoke her right against
self-incrimination if she were called to testify.




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call detail records for phones belonging to Texeira and Kona and

text messages from Texeira’s phone number.          The records, which

contained the contents of certain text messages, indicated that

a text message from Texeira’s phone was sent at 6:19 p.m. on

October 31, 2016, which said “[g]rab a bat.”           There was also a

message sent from Texeira’s phone to Kona’s phone at 8:22 p.m.,

which said, “all pau.”15      KPD provided Nam with the latitude and

longitude of where Togioka’s body was recovered and the address

of Kona’s house.     Based on phone calls made by Kona’s phone

between 7:55 and 9:10 p.m. on October 31, 2016, Kona’s phone

could not have been near Togioka’s body because it was near

Kona’s house.     Nam further testified that Texeira’s phone was in

the same area as Togioka’s body at 7:54 p.m., and that it

remained there for at least 16 to 18 minutes and potentially up

to 30 minutes.     By 8:55 p.m., Texeira’s phone was moving in a

way consistent with it leaving Kekaha and going towards Waimea.

Between 8:59 and 10:29 p.m., Texeira’s phone was in a position

consistent with it being at Kona’s residence based on its

interaction with cell phone towers.

            Stephanie Regan, a crime scene and laboratory

supervisor for the KPD, testified that she was the KPD ParaDNA

      15
            Nam’s testimony regarding this message is consistent with Kona’s
testimony as to a message he received from Texeira that evening with the
exception that Kona stated the message was spelled, “Aw pau.”




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administrator, a position in which she conducts presumptive

screening of DNA evidence that gives a partial, but not full,

DNA profile.16    In addition to analyzing DNA evidence, Regan

stated that she conducts digital forensics for KPD, using the

Cellebrite Universal Forensic Extraction Device (UFED) to

extract digital evidence from cell phones, tablets, or external

drives.

           Regan testified that she used Cellebrite UFED on a

blue colored Verizon Samsung Galaxy phone, identified as

Texeira’s phone.     She was able to extract text messages,

including the contacts to whom the messages were sent and the

times of sending.     On October 30, 2016, at 3:16 a.m., Texeira

sent, and later deleted, a text message to Kona’s phone stating,

“I get Jon”.     This was followed by a further deleted message

from Texeira, “I bringing him,” and a response from Kona’s phone

stating, “To the back.      Crispy.”      Texeira sent, and deleted, a

text message to Kona at 3:30 a.m., “I wouldn’t shoot just yet.

He get interesting things to say.”          On October 31, 2016, at 6:06

p.m., Texeira received a text message from a contact identified

in the phone as “Lei,” asking, “You know where [Togioka] stay?”
     16
            Regan testified that she has a bachelor’s degree in human
development and biology from Harvard University, was pursuing a master’s
degree in digital forensics from the University of Central Florida, was a
certified crime scene investigator, and had been with the KPD for
approximately three and a half years. The court recognized Regan as an
expert in the field of digital forensics.




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           Regan stated that on November 2, 2016, she

investigated the scene of Togioka’s death.          She observed several

cigarettes next to his body.       In order to perform DNA testing,

these cigarettes, along with buccal swabs from Texeira, Kona,

Pagala, and Flores were collected.         Regan personally conducted

ParaDNA tests on several of these cigarettes before sending the

cigarettes, Texeira and Kona’s buccal swabs, and a blood sample

from Togioka to Sorenson.

           Regan stated that on November 4, 2016, she recovered a

.22-caliber revolver hidden in a drainage pipe by the river

behind Kona’s house.      Six rounds, five of which were spent, were

recovered from the revolver.       KPD was not able to test the

revolver to determine if it was the weapon used to kill Togioka.

Regan stated that she also observed an injury on Kona’s middle

right hand knuckle, which appeared to be a few days old as of

November 4, 2016.

           Jeskie, the Sorenson employee who testified at the

pretrial HRE Rule 104 hearing, testified as an expert in DNA

forensic testing.17     She analyzed the cigarette butt found near

Togioka’s calf against a DNA reference from Texeira.             The

cigarette butt had a single source of DNA, which was matched to

      17
            Defense counsel objected to Jeskie’s expert testimony at trial,
incorporating by reference the grounds asserted in Texeira’s motion in limine
to exclude DNA evidence.




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Texeira and no other individuals.           Jeskie testified that the

odds that the DNA would come from someone other than Texeira was

one in 24.1 octillion for Caucasians, one in 4.16 octillion for

African-Americans, and one in 1.63 octillion for Hispanics.18

Even if Texeira was not Caucasian, African, or Hispanic, the

results would not change drastically.           Jeskie stated that she

did not receive DNA samples from Dela Cruz or Flores.               DNA tests

were also conducted on swabs taken from the .22-caliber

revolver.      The grip area DNA result was inconclusive, Jeskie

stated, and the barrel end had no DNA.            Jeskie did not analyze

the trigger, hammer area, ejector rod, or cylinder area of the

revolver.

             Detective (Det.) Christopher Calio, an officer with

KPD, testified that no bullet casings were found at the location

of Togioka’s body.       This was consistent with either a weapon

that did not eject its casings, such as a revolver, or with

someone picking up the casings.          He recovered a firearm with the

help of Kona, but attempts to test fire it were unsuccessful.

Det. Calio also testified that on November 7, 2016, he assisted

Texeira with filling out some paperwork.            The detective

identified a document as one of the forms that Texeira filled



       18
             Jeskie explained that an octillion is “a one with 27 zeros after
it.”



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out and signed at that time.         Det. Calio knew that Texeira had

signed the document because he personally saw him do so.

             Det. Eric Caspillo, an officer with the KPD, testified

that he went over some paperwork with Texeira shortly after

Texeira was arrested and observed him sign multiple forms.                Det.

Caspillo identified two exhibits as copies of those forms and

stated that he recognized Texeira’s signature on the exhibits.

KPD Lieutenant (Lt.) Darren Rose also testified that he observed

Texeira sign and write on several documents.             When asked to

compare Texeira’s signature on those documents with the one on

the second confession letter, Lt. Rose testified that they were

the same signature.

             Lt. Christian Jenkins of the KPD testified that he

interviewed Texeira on November 4, 2016, at the police

substation in Waimea.        A recording of the interview was played

before the jury.       In the interview, Texeira stated that on

October 31, 2016, he went to Kona’s house in the morning, spent

the day with his grandfather, and stopped at Kona’s house again

around 9:00 or 10:00 p.m.         He left because no one was home, and

he went to pick up his brother at “Shark’s Bay.”              Texeira

estimated that he picked his brother up between 9:00 and 10:00

p.m.    He took his brother back to Shark’s Bay on November 1,

2016, around 8:00 a.m., because his brother had left his car

there.     Texeira stated that he had not been near the Burns

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Field-side of Shark’s Bay, but that instead he was on the other

side of the bay near the tennis courts.

          Dr. Lindsey Harle, a forensic pathologist, conducted

the autopsy on Togioka.     She observed a gunshot entry wound on

Togioka’s head and on his right forearm.         The shooter was facing

Togioka when he shot him in the forearm, but the right forearm

wound was not fatal.     Based on the nature of the forearm and

head wounds, Dr. Harle explained, she was unable to determine

how far away the gun had been from Togioka’s forearm or head

when he was shot.     It could have been a distant shot, or it

could have been a close shot that passed through an intervening

material like a hat or a T-shirt.        In addition to the gunshot

wounds, Togioka had multiple injuries across his body indicating

blunt force trauma and falling onto rocks.         Dr. Harle stated

that the condition of Togioka’s body was consistent with his

having died between 8:00 and 9:00 p.m. on October 31, 2016.

          At the end of the State’s case-in-chief, Texeira moved

for a judgment of acquittal, which the court denied.            Texeira

also filed a Trial Memorandum Regarding Witness Trish Flores in

which he elucidated the evidence he would present to show there

was a legitimate tendency in the evidence to show that Flores

killed Togioka and was intimidating the other witnesses into

testifying falsely.     Texeira cited statements that an individual

named Shannon Breen made to KPD officers, Kona’s statements to

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the police during interviews on November 3 and November 6, 2016,

Flores’ statements to the police during interviews on November 2

and November 5, 2016, certain evidence obtained by KPD, and

Flores’ actions around the time of the murder.

             Texeira argued that, during a police interview, Breen

stated that she saw Flores and Pagala in Pagala’s residence on

October 31, 2016, around 3:00 a.m., and they were in possession

of a box of .22-caliber bullets.            Breen heard Flores ask Pagala

if he had the bullets she “gave him,” and Pagala said that he

did.    Breen further stated that she had heard that Togioka owed

Flores money, and that she saw Flores and Pagala watching a

video on Flores’ phone in which Flores had tied up a man who

owed her money and was shocking him for up to ten minutes at a

time with an electroshock weapon.

             Texeira also proffered a statement Flores gave to the

police on November 2, 2016, in which she stated that Togioka had

assaulted a friend of hers on October 29, 2016.             Flores told the

police that she learned on October 30 that Togioka had claimed

to be in a sexual relationship with her at some time in the past

and she had confronted him about his claims that day.

Additionally, Flores acknowledged she and Pagala had a .22-

caliber rifle in her car on either the night of October 31 or

November 1, but when pressed for details she claimed that she

could not recall which day it was and could not recall her

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whereabouts on the evening of October 31.19          Texeira also pointed

to the facts that Flores and Pagala were in possession of .22-

caliber bullets when they were arrested two days after Togioka’s

murder; KPD had observed Pagala arrive at a residence with

Flores on the morning of November 2 and Pagala had entered the

residence carrying a small caliber rifle; and Flores was a

person of interest in KPD’s investigation of Togioka’s death.

Texeira asserted that Flores gave a false alibi to the police

about her whereabouts on the evening of October 31, 2016, and

her whereabouts remained unverified.



     19
           Texeira pointed to the following exchange in particular:

           DETECTIVE: You have a rifle. What caliber is it?     Okay.
           Let me say it again. Jon’s dead.

           FLORES: Yeah

           DETECTIVE: Now, before you say anything to me again, think
           about it. Okay? I want you to think about it. Why is
           Detective Calio asking you this? Why? Okay. I want you
           to think hard because, right now, you’re – you’re kind of
           cloudy on Monday evening, Halloween. I want you to think
           about it, yeah. So do you need me to step out so you can
           think?

           FLORES: No.

           DETECTIVE: Okay. Now, I just want to say to you again, Jon
           Togioka is dead, you have a .22-caliber rifle in your car.

           FLORES: I don’t know what for say.   I don’t know.   I don’t
           know what for say.

           DETECTIVE: Where were you the evening that Jon died?

After repeatedly saying she could not recall her whereabouts that evening,
Flores ultimately stated that she and Pagala were alone at her house.




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            Texeira further noted that Kona or someone else would

call or go see Flores after “almost every incident with []

Togioka.”    Texeira cited numerous incidents, including one Kona

described in a police interview on November 6, 2016, in which

Kona told the police that he called Flores immediately after

shooting at Togioka on October 29, 2016, and Flores said

something about wanting to shoot Togioka at that time.20

Finally, Texeira pointed to the fact that Flores had come to

Kona’s house the night after Togioka’s death and was acting

paranoid.    These facts, Texeira contended, established a

legitimate tendency that Flores had killed Togioka, and he

should therefore be permitted to argue at trial that Flores was

the culprit.

            Texeira moved to introduce at trial the proffered

evidence outlined in the memorandum.         The State opposed the

introduction, maintaining that since the evidence did not

indicate Flores could have committed the crime, such evidence

was irrelevant.     The court denied Texeira’s motion, finding that

there could be evidence of motive for Flores, but there was no




     20
            After telling the interviewing officers that he called Flores
immediately after firing the shot, the officers asked Kona what exactly she
said to him on the phone and specifically whether she said anything about
wanting to shoot Togioka. Kona responded that she “did say something there”
but could not recall the exact words, and he suggested that she was not
serious.



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direct connection.      The court thus excluded the evidence Texeira

proffered.

           Texeira recalled Det. Caspillo in his case-in-chief.

Det. Caspillo testified that there were no shell casings around

the body, which meant that the gun used could have been a

revolver or a rifle.      The shooter also could have used a

semiautomatic pistol and then picked up the shells.            Det.

Caspillo further testified that on November 3, 2016, he took

Kona’s statement, and Kona denied having a gun.           On November 4,

2016, Det. Caspillo executed a search warrant on Kona’s

residence where he discovered one round of .22-caliber

ammunition, one .250 SAV caliber round, one 7-millimeter live

ammunition round, gun cleaning solution, a handgun holster, over

seven cell phones, three of which were associated with Kona, and

SIM cards in an interior bedroom.         The defense rested after Det.

Caspillo’s testimony.      Texeira moved for a judgment of

acquittal, which the court denied.

           The jury found Texeira guilty of murder in the second

degree, carrying or use of firearm in the commission of a

separate felony, and ownership or possession prohibited.21

Texeira was sentenced to life imprisonment with the possibility


      21
            The parties stipulated that Texeira was prohibited from owning,
possessing, or controlling any firearms or ammunition, and that Texeira knew
of this prohibition.



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of parole with a mandatory minimum of 15 years in count one, 20

years imprisonment in count two, and an extended term of ten

years in count three, all terms to run concurrently.

                     C.         Appellate Proceedings

          Texeira appealed the July 25, 2018 Judgment and

Sentence of Conviction to the Intermediate Court of Appeals

(ICA).   On August 26, 2019, Texeira filed an application for

transfer of the appeal to this court, which this court granted.

          Texeira raises three points of error on appeal.             He

argues that the circuit court erred by (1) admitting the

confession letter allegedly written by Texeira into evidence;

(2) admitting DNA evidence that allegedly placed Texeira at the

crime scene; and (3) excluding evidence that a third-party,

Flores, killed Togioka.

                     II.         STANDARDS OF REVIEW

                           A. Questions of Law

          Questions of law are reviewable de novo, under the

right/wrong standard.          Ass’n of Apt. Owners of Royal Aloha v.

Certified Mgmt., Inc., 139 Hawai‘i 229, 233, 386 P.3d 866, 870

(2016) (citing Ditto v. McCurdy, 90 Hawai‘i 345, 351, 978 P.2d

783, 789 (1999)).

                          B.       Findings of Fact

          We review a circuit court’s findings of fact under a

“clearly erroneous standard.”          State v. Rodrigues, 145 Hawai‘i

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487, 494, 454 P.3d 428, 435 (2019).        “A finding of fact is

clearly erroneous when (1) the record lacks substantial evidence

to support the finding, or (2) despite substantial evidence in

support of the finding, the appellate court is nonetheless left

with a definite and firm conviction that a mistake has been

made.”   State v. Kaneaiakala, 145 Hawai‘i 231, 240, 450 P.3d 761,

770 (2019).

                          III.    DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Admitting the
                Second Confession Letter at Trial.

           Under HRPP Rule 16, the State must disclose to the

defendant or defendant’s attorney “any written or recorded

statements . . . made by the defendant” that the State has in

its “possession or control.”      HRPP Rule 16(b)(1)(ii).        Texeira

contends that the State violated its obligations under HRPP Rule

16 by failing to timely produce the second confession letter to

the defense.   He maintains the State had possession or control

of the letter as early as May 19, 2017, when it became aware of

the letter’s existence.     Alternatively, Texeira argues that Kona

was an agent of the State after entering into a plea agreement

on June 2, 2017, and thus the State had control over Kona and

any documents in Kona’s possession, including the second

confession letter.    Under either alternative, contends Texeira,

the fact that the second letter was not turned over to the


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defense until ten months later, which was one month before

trial, meant that the State had not met its HRPP Rule 16

obligations.      Texeira notes that the circuit court did not

expressly rule on his contention that the letter had not been

timely disclosed to the defense pursuant to HRPP Rule 16.

             This court discussed the prosecution’s disclosure

obligations under HRPP Rule 16 in State v. Moriwaki, 71 Haw.

347, 354, 791 P.2d 392, 396 (1990).           In Moriwaki, the defendant

was charged with murder for fatally stabbing his sister’s

boyfriend.      Id. at 349, 791 P.2d at 393-94.         At trial, the

defendant argued that he acted in self-defense after the

boyfriend initiated an altercation with him.             Id. at 350-51, 791

P.2d at 394-95.       In rebuttal, the prosecution adduced evidence

of the boyfriend’s peaceful character.            Id.   The jury found the

defendant guilty of manslaughter.           Id. at 349, 791 P.2d at 393-

94.    Subsequently, the defendant moved to set aside the verdict

or, alternatively, for a new trial based on newly discovered

evidence and prosecutorial misconduct.            Id. at 351, 791 P.2d at

394.    The defendant presented testimony from his sister that

prior to testifying at trial she had told the prosecutor that a

week before her boyfriend’s death, he had assaulted a neighbor

whom she believed had been looking in her bedroom window.                Id.

at 353-54, 791 P.2d at 396.         The sister testified that the

prosecutor told her not to mention it so as to not make the

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boyfriend look bad.       Id.   The circuit court denied the

defendant’s motion.       Id. at 351, 791 P.2d at 394.

            On appeal, this court concluded that the prosecution

had a duty to disclose its knowledge of the incident of violence

under HRPP Rule 16, and the failure to make such a disclosure

was a violation of that rule.         Id. at 355-56, 791 P.2d at 396-

97.   Since the violation substantially prejudiced the

defendant’s self-defense argument and it was not discovered

until after the completion of trial, we vacated the defendant’s

conviction and remanded the case for a new trial.             Id.

            In this case, it appears the State became aware of the

second confession letter during a May 5, 2017 interview of Kona

by investigating officers.22        The State disclosed the existence

of the letter and its nature to the defense on May 23, 2017,

when it provided defendant with the transcript of Kona’s

interview.     Accordingly, Texeira was aware of the second

confession letter once he received Kona’s interview statements.

The State then came in physical possession of the letter upon

receiving it from Kona’s counsel, and it appears the State

promptly provided a copy of the letter to the defense upon

receipt.

      22
            At minimum, the State was aware of the letter after the May 19,
2017 interview in which Kona’s attorney discussed the contents of the letter
with investigating officers.




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            Texeira contends, however, that the State had

constructive possession of the letter and therefore an

obligation to disclose it as soon as Kona began negotiating a

plea deal with the prosecution.        The issue of whether the

prosecution is in possession of documents that are in the

possession of other individuals involved in the prosecution of a

defendant was considered, under Federal Rules of Criminal

Procedure Rule 16, in United States v. Smukler.23           No. 17-563-02,

2018 WL 3632148 (E.D. Pa. July 31, 2018).          The defendant in

Smukler relied solely on the fact that the relevant witnesses

were cooperating with the prosecution to support the conclusion

that the witnesses, and thus the documents they possessed, were

under the prosecution’s control.           Id. at *3.   The Smukler court

     23
            Federal Rule of Criminal Procedure Rule 16 (2013) provides in
relevant part as follows:

            (a) Government’s Disclosure.

               (1) Information Subject to Disclosure.

                  . . . .

                  (B) Defendant’s Written or Recorded Statement. Upon a
                  defendant’s request, the government must disclose to
                  the defendant, and make available for inspection,
                  copying, or photographing, all of the following:

                     (i) any relevant written or recorded statement by
                     the defendant if:

                        • the statement is within the government’s
                        possession, custody, or control; and

                        • the attorney for the government knows--or
                        through due diligence could know--that the
                        statement exists[.]




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rejected this contention and found that the mere fact that a

witness was cooperating with the government did not place the

witness or any documents in the witness’s possession under the

government’s control.24      Id. at *3-4.

            Whether the prosecution has constructive possession of

a document will depend on the factual circumstances of each

case.     See United States v. Reyeros, 537 F.3d 270, 281-82 (3d

Cir. 2008) (noting that a case-by-case analysis is appropriate

when considering the prosecution’s constructive knowledge of

exculpatory evidence under Brady).         In United States v. Graham,

for example, the Sixth Circuit considered the particular facts

of the case and concluded that the prosecution’s constitutional


     24
            The court in Smukler determined that the analysis for whether
documents in the possession of other government agencies or individuals
involved in the prosecution of a defendant were in the possession of the
prosecution under Brady v. Maryland, 373 U.S. 83 (1963), was applicable to
the prosecution’s possession of documents for purposes of Federal Rule of
Criminal Procedure Rule 16. No. 17-563-02, 2018 WL 3632148, at *3 (citing
United States v. Graham, 484 F.3d 413, 417-18 (6th Cir. 2007)).
            The Brady rule has been incorporated into the Hawai‘i due process
jurisprudence and applied by this court. See, e.g., State v. Estrada, 69
Haw. 204, 215, 738 P.2d 812, 821 (1987). Under this rule, “[t]he suppression
by the prosecution of evidence favorable to the accused violates due process
where the evidence is material to guilt or punishment, regardless of the good
faith or bad faith of the prosecution.” State v. Fukusaku, 85 Hawai‘i 462,
479, 946 P.2d 32, 49 (1997) (quoting State v. Matafeo, 71 Haw. 183, 185, 787
P.2d 671, 672 (1990)). There is no contention by Texeira that the letter
provided favorable evidence to him. We do not, however, restrict our
interpretation of HRPP Rule 16 to the Brady standard. In some cases, for
example, due process will require the State to disclose evidence beyond the
disclosures required by the rules of penal procedure. See State v. Tetu, 139
Hawai‘i 207, 214, 386 P.3d 844, 851 (2016) (“[T]he HRPP Rule 16 discovery
right does not purport to set an outer limit on the court’s power to ensure a
defendant's constitutional rights.” (citing United States v. Yoshimura, 831
F. Supp. 799, 805 (D. Haw. 1993)).




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disclosure obligations did not extend to a cooperating witness

who “remained an independent actor.”        United States v. Graham,

484 F.3d 413, 417-18 (6th Cir. 2007).        The court noted that the

prosecution had to obtain approval from the witness’s counsel

before interviewing the witness, the prosecution had to serve

the witness with a subpoena to compel production of documents,

and the witness refused to produce materials covered by the

attorney-client privilege to the prosecution.          Id.   The State’s

possession of documents for purposes of HRPP Rule 16 will

similarly depend on multiple factors and the specific facts of

each case.   Cf. Reyeros, 537 F.3d at 282 (noting that a relevant

factor is whether the entity charged with constructive

possession had “ready access” to the evidence).

          In this case, the record does not demonstrate that the

State exerted any control over Kona’s actions in relation to

other witnesses or matters related to the case, other than he

was a cooperating witness.      Texeira cites the fact that Kona had

negotiated for and ultimately received a plea deal, but the mere

fact that a witness is cooperating with the prosecution does not

show that the witness or the documents in the witness’s

possession are under the prosecution’s control for purposes of

the prosecution’s disclosure obligations under HRPP Rule 16.

Therefore, we hold that Texeira has not shown that the State had

possession of the second confession letter for purposes of HRPP

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Rule 16, and the State was not obligated to obtain the letter

from Kona’s counsel before it received the letter.25

           Accordingly, Texeira has not demonstrated that the

timing of the State’s disclosure of the confession letter was a

violation of HRPP Rule 16, and therefore exclusion was not shown

to be the appropriate remedy.        Cf. Moriwaki, 71 Haw. at 356, 791

P.2d at 397 (concluding that a new trial was the proper remedy

for an HRPP Rule 16 violation when it was the only remedy

available to cure the prejudice defendant suffered).

     B.    The Circuit Court Did Not Err by Permitting the
   Introduction of DNA Evidence Without a Showing that the DNA
      Tests Were Conducted in Accordance with Manufacturer
                         Specifications.

           The admissibility of scientific evidence under HRE

Rules 70226 and 70327 is governed by five factors: whether (1) the


     25
            Additionally, the record does not show that the timing of the
State’s disclosure of the letter was prejudicial such that it compelled
Texeira to elect between waiving his right to a speedy trial and conducting
fingerprint or handwriting analysis on the letter. During the State’s motion
to determine voluntariness, Texeira did not state that he had retained or
made an effort to retain an expert to analyze the authenticity of the second
confession letter, indicate the length of time needed to obtain an analysis
by an expert, or make any showing that the analysis could not be completed
before the trial date. Consequently, the record does not show that the
timing of the State’s disclosure of the letter impaired Texeira’s ability to
present his defense. See Tetu, 139 Hawai‘i at 220, 386 P.3d at 857 (“Due
process requires that a defendant be given a meaningful opportunity to
present a complete defense and that discovery procedures provide the maximum
possible amount of information and a level-playing field in the adversarial
process.”).
     26
           HRE Rule 702 (2016) provides as follows:

           Testimony by experts. If scientific, technical, or other
           specialized knowledge will assist the trier of fact to
           understand the evidence or to determine a fact in issue, a
                                                            (continued . . .)


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evidence will assist the trier of fact to understand the

evidence or to determine a fact in issue; (2) the evidence will

add to the common understanding of the jury; (3) the underlying

theory is generally accepted as valid; (4) the procedures used

are generally accepted as reliable if performed properly; and

(5) the procedures were applied and conducted properly in the

present instance.     State v. Montalbo, 73 Haw. 130, 140, 828 P.2d

1274, 1280-81 (1992).      This court has previously taken judicial

notice of the fact that DNA evidence is not controversial and is

“widely accepted in the relevant scientific community” and that

the “basic techniques underlying the analysis” are also widely

accepted.    Id. at 141, 828 P.2d at 1281.        DNA evidence has also




(. . . continued)

            witness qualified as an expert by knowledge, skill,
            experience, training, or education may testify thereto in
            the form of an opinion or otherwise. In determining the
            issue of assistance to the trier of fact, the court may
            consider the trustworthiness and validity of the scientific
            technique or mode of analysis employed by the proffered
            expert.
      27
            HRE Rule 703 (2016) provides as follows:

            Bases of opinion testimony by experts. The facts or data
            in the particular case upon which an expert bases an
            opinion or inference may be those perceived by or made
            known to the expert at or before the hearing. If of a type
            reasonably relied upon by experts in the particular field
            in forming opinions or inferences upon the subject, the
            facts or data need not be admissible in evidence. The
            court may, however, disallow testimony in the form of an
            opinion or inference if the underlying facts or data
            indicate lack of trustworthiness.



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been recognized as adding to the common knowledge of the jury

and will assist the trier of fact to understand evidence.             Id.

          Texeira argues that the State was required to show

that the DNA analyses of the evidence in this case were

conducted in accordance with the manufacturer’s recommended

procedures in order to establish a proper foundation for

admission of the test results.       Accordingly, the pertinent

inquiry in this case is Montalbo’s fifth element: whether

Sorenson’s DNA analyses were “applied and conducted properly.”

73 Haw. at 140, 828 P.2d at 1281.

          When considering Montalbo’s fifth element, we have

held that a “foundational prerequisite for the reliability of a

test result is a showing that the measuring instrument is in

proper working order.”     State v. Wallace, 80 Hawai‘i 382, 407,

910 P.2d 695, 720 (1996) (internal quotation marks omitted).

“Therefore, a proper foundation for the introduction of a

scientific test result would necessarily include expert

testimony regarding: (1) the qualifications of the expert; (2)

whether the expert employed valid techniques to obtain the test

result; and (3) whether the measuring instrument is in proper

working order.”    State v. Long, 98 Hawai‘i 348, 355, 48 P.3d 595,

602 (2002) (internal quotation marks omitted) (holding that the

State failed to establish a sufficient foundation that a

laboratory instrument was in proper working order when it did

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not ask any questions regarding the instrument’s accuracy).

This court has previously considered, in certain contexts,

whether the State must show that a measuring device was used in

accordance with the manufacturer’s recommended procedures before

allowing the measurement into evidence.         Wallace, 80 Hawai‘i at

412, 910 P.2d at 725 (calibration of electronic balance for

measuring the weight of narcotics); State v. Manewa, 115 Hawai‘i

343, 167 P.3d 336 (2007) (electronic balance and gas

chromatograph mass spectrometers used to measure and identify

controlled substances); State v. Assaye, 121 Hawai‘i 204, 210-14,

216 P.3d 1227, 1233-37 (2009) (calibration of laser gun for

measuring a vehicle’s speed); State v. Fitzwater, 122 Hawai‘i

354, 227 P.3d 520 (2010) (calibration of speedometers for speed

check results).

          In Wallace, we held that the State failed to lay a

sufficient foundation as to the accuracy of an electronic

balance that was used to weigh the amount of cocaine found in

the defendant’s car.     80 Hawai‘i at 411-12, 910 P.2d at 724-25.

We noted that the expert witness through which the State

introduced the results of the electronic balance into evidence

lacked personal knowledge as to whether the balance was properly

calibrated at the time it was used to weigh the cocaine.            Id. at

412, 910 P.2d at 725.     The manufacturer’s service

representative, who conducted annual calibrations of the

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balance, did not testify regarding maintenance of the device,

and the State did not offer any “business record of the

manufacturer reflecting proper calibration of the balance.”                Id.

Accordingly, we held that the State had failed to establish that

the balance measured weight accurately at the time it was used

to measure the cocaine, and thus the admission of the expert’s

testimony regarding its weight was erroneous.          Id.

          In Manewa, we similarly held that the prosecution had

laid an inadequate foundation for the introduction of an

electronic balance’s measurement of methamphetamine purchased

from the defendant by an undercover officer.          115 Hawai‘i at 355,

167 P.3d at 348 (“Moreover, as in Wallace, [the State] did not

offer any business records of the manufacturer indicating a

correct calibration of the balance.”).         Also at issue was the

reliability of gas chromatograph mass spectrometers (GCMSs) that

the State’s expert witness used to identify the substance as

methamphetamine.    Id. at 350, 167 P.3d at 343.        We concluded

that the expert’s testimony that the devices were operating

within the manufacturer’s specifications “supported the

conclusion that the GCMSs were in proper working order at the

time the evidence was tested.”       Id. at 354, 167 P.3d at 347

(citing Wallace, 80 Hawai‘i at 407, 910 P.2d at 720).           As such,

the State had laid an adequate foundation as to the identity of



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the methamphetamine, and the testimony was properly admitted.

Id.

            We again considered the relevance of manufacturer-

recommended procedures for the operation of a measuring device

in Assaye.     121 Hawai‘i at 210-14, 216 P.3d at 1233-37.           The

defendant in Assaye was convicted of excessive speeding after a

bench trial at which the citing police officer testified that he

used a laser gun to determine that the defendant was speeding.

Id. at 205, 216 P.3d at 1228.         The officer testified that he was

certified to use the laser gun through a one hour class taught

by another police officer and he performed four tests to ensure

the accuracy of the laser gun before using it.            Id. at 212, 216

P.3d at 1235.     There was no expert testimony that the tests the

officer performed were reliable, and the State did not show that

the laser gun’s manufacturer recommended using these tests to

ensure the reliability of the laser gun’s measurements.              Id.

The defendant objected that there was an insufficient foundation

for the officer’s testimony, but the circuit court overruled the

objection.     Id. at 207-09, 216 P.3d at 1230-32.

            On appeal, we held that there was an inadequate

foundation to show the laser gun’s measurements were reliable.

Id. at 214, 216 P.3d at 1237.         Additionally, we noted that with

regard to our conclusion that the GCMSs in Manewa were reliable,

it was “[c]rucial” that the record indicated the device

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manufacturer had established parameters to ensure the machine

was in working order, and the expert testimony indicated that

the devices were operating within those parameters.           Id. at 212-

13, 216 P.3d at 1235-36.      In contrast, the Assaye court stated

that the record in that case was silent as to what procedures

the laser gun’s manufacturer recommended, and there was no

expert testimony that the procedures the officer had used were

reliable.   Id. at 213, 216 P.3d at 1236.        After observing that

courts in other jurisdictions had considered evidence as to the

manufacturer-recommended procedures to maintain a laser gun and

ensure its accuracy, we concluded that the State had not laid an

adequate foundation to show that the laser gun’s measurement was

reliable because the State had not adduced any evidence as to

the procedures the manufacturer recommended to ensure the

device’s accuracy.    Id. at 213-14, 213 n.7, 216 P.3d at 1236-37,

1236 n.7; accord State v. Apollonio, 130 Hawai‘i 353, 359-62, 311

P.3d 676, 682-85 (2013); see also Fitzwater, 122 Hawai‘i at 375,

227 P.3d at 541 (noting that because the record did not indicate

what kind of test was performed to ensure the speedometer in the

officer’s vehicle was reliable, the foundational requirements

set forth with respect to the electronic balance in Wallace and

Manewa were applicable).

            Texeira contends that these prior holdings required

the State to demonstrate that the analyses conducted in this

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case were done in accordance with the manufacturer’s established

recommendations.    First, this is not a case where the expert

witness lacked personal knowledge as to whether the device was

properly calibrated at the time it was used, as was the

situation with the electronic balances discussed in Wallace and

Manewa.   Furthermore, our holding in Manewa with respect to the

GCMSs does not require that the State prove calibration in

compliance with the manner recommended by the manufacturer.                115

Hawai‘i at 354, 167 P.3d at 347.         The Manewa court held that the

expert’s testimony established that the devices were in working

order according to the manufacturer’s specifications, and

accordingly an adequate foundation was laid.          Id.   Nor is this

case similar to Assaye, where the only evidence as to the

reliability of the laser gun’s measurement was the officer’s lay

testimony.   121 Hawai‘i at 214, 216 P.3d at 1237.          Here, the

State sought to demonstrate the reliability of the instruments

used to conduct the DNA analyses by presenting expert testimony

as to the operating procedures employed by Sorenson, the

training requirements for its employees, its accreditation

process, and by introducing a business record to prove the

devices were in working order at the time they were used.

          As stated, the test for determining whether a party

has laid a sufficient foundation for the admissibility of an

expert’s testimony as to scientific test results is that

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established in Long.      98 Hawai‘i at 355, 48 P.3d at 602.        The

proponent of the evidence must present expert testimony as to

the qualifications of the expert, whether the expert employed

valid techniques to obtain the test result, and whether the

measuring instrument was in proper working order at the time it

was used.    Id.

            In this case, Jeskie testified that all of the

instruments used to analyze the samples in this case were

validated.    She explained that validation is a process used to

ensure that the data produced by the device is reliable and

reproducible.      Jeskie further testified that the validation

process used by Sorenson was consistent with the validation

process required by the FBI’s quality assurance standards.

Sorenson’s compliance with the FBI’s quality assurance standards

is necessary for its accreditation by ASCLD, and Sorenson’s

laboratory and equipment were subject to regular audits by ASCLD

in order for Sorenson’s accreditation to be maintained.

Additionally, Jeskie testified that all the Sorenson laboratory

employees are required to complete a training program on the

proper use of the laboratory equipment, and that the program is

reviewed as part of the ASCLD accreditation process.            Jeskie

indicated that Sorenson had never lost its ASCLD accreditation

or had its accreditation withheld or suspended.          Jeskie also

explained that each machine used in this case was subject to a

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control, which would have revealed whether there was a mistake

or error in the test.     Finally, the State presented a certified

business record at the pretrial HRE Rule 104 hearing to prove

the machines were properly maintained at the time of testing by

showing that they underwent daily, weekly, monthly, and annual

maintenance, and they were properly calibrated to ensure the

test results were accurate.

          Based on the foregoing, we conclude the State has

proven by a preponderance of the evidence that the machines used

to analyze the DNA evidence in this case were in proper working

order at the time they were used, and thus the State laid a

sufficient factual foundation for Jeskie’s testimony as to the

results of those analyses.      Long, 98 Hawai‘i at 355, 48 P.3d at

602; State v. Gano, 92 Hawai‘i 161, 172, 988 P.2d 1153, 1164

(1999) (noting that when the facts necessary for admissibility

are contested, the proponent of the evidence must show it is

admissible by a preponderance of the evidence); accord State v.

Martin, No. SCWC-XX-XXXXXXX, 2020 WL 1934475, at *14 (Haw. April

22, 2020) (noting that this court “adopted the preponderance of

the evidence standard for foundation factfinding in HRE Rule

104(a) admissibility hearings”) (alterations omitted) (quoting

State v. McGriff, 76 Hawai‘i 148, 871 P.2d 782 (1994)).

          A review of decisions from other jurisdictions that

have addressed the admissibility of DNA test results from

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laboratories that operate under ASCLD and FBI standards lends

support to the reliability of the standards used in this case.

For example, in State v. Powell, the Tennessee Court of Criminal

Appeals concluded that an expert was properly allowed to testify

regarding the laboratory’s DNA analysis because the laboratory

had “complied with the rigorous protocols necessary to obtain

and maintain ASCLD accreditation.”28        Powell, No. W2013-00844-

CCA-R3-CD, 2014 WL 1329233 (Tenn. Crim. App. April 3, 2014).

Similarly, Nebraska courts have found that the Daubert framework

was satisfied by a DNA expert’s testimony that the laboratory in

question was (1) accredited by ASCLD, (2) complied with the

FBI’s testing requirements, and (3) the expert was “required to

pass a proficiency examination twice a year.”           State v. Warner,

No. A-15-858, 2016 WL 4443559, at *5 (Neb. App. Aug. 23, 2016);

see also State v. Tolliver, 689 N.W.2d 567, 576 (Neb. 2004);

State v. Fernando-Granados, 682 N.W.2d 266, 281-82 (Neb. 2004).

The Ohio Court of Appeals addressed the issue in State v. Bruce,

concluding that an expert was qualified to testify regarding a
     28
            In United States v. Morgan, the court detailed the extensive
process a laboratory must engage in to receive ASCLD accreditation. 53
F.Supp.3d 732, 738-39 (S.D. N.Y. 2014). The court noted that a laboratory is
required to submit an application to ASCLD, who conducts an on-site
assessment that entails interviewing all relevant employees, observing the
employees perform their job functions, reviewing records accompanying the
application, and analyzing case records to determine whether the laboratory’s
results are accurate and appropriate. Id. at 738. ASCLD then issues a
report detailing whether the laboratory has met accreditation requirements;
if accreditation is granted, the laboratory is required to provide records
demonstrating conformity with accreditation requirements and submit an annual
report detailing compliance. Id. at 739.



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DNA analysis after noting that the laboratory in that case was

ASCLD accredited and that the expert passed FBI proficiency

tests.   Bruce, No. 2006-CA-45, 2008 WL 4801648, at *12 (Ohio

App. Oct. 31, 2008).      A New Mexico district court similarly

found that a machine’s DNA test results were admissible because

the laboratory was ASCLD accredited, followed FBI Quality

Assurance Standards, and established “rigorous standards for

technical procedures and policies, undergoing proficiency

testing, internal validation, and performance checks.”             United

States v. McCluskey, 954 F.Supp.2d 1224, 1256 (D. N.M. 2013).

           In addition to caselaw, California and Indiana have

passed statutes mandating that DNA laboratories either use

quality assurance standards approved by ASCLD or meet FBI

Quality Assurance Standards.        See Cal. Penal Code § 297(a)(1)

(2007) (requiring DNA laboratories to meet the FBI Quality

Assurance Standards); Ind. Code Ann. § 10-13-6-14 (2003)

(requiring a “laboratory conducting forensic DNA analysis” to

“implement and follow nationally recognized standards for DNA

quality assurance and proficiency testing, such as those

approved by the American Society of Crime Laboratory Directors

Laboratory Accreditation Board”).29        In sum, several


      29
            Texeira argues that State v. Tankersley stands for the
proposition that a laboratory must comply with a manufacturer’s specification
in order for its tests to be admissible. However, the Tankersley court held
                                                             (continued . . .)


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jurisdictions consider ASCLD accreditation as foundational

evidence that DNA tests conducted in the accredited laboratory

are reliable.30

            Here, as discussed above, the record establishes by a

preponderance of the evidence that the machines Sorenson used to

conduct the DNA analysis in this case were reliable.             The State

laid a proper foundation to the introduction of this evidence by

proving that Jeskie was properly qualified, the techniques

Sorenson used were valid, and the machines were in proper

working order at the time they were used.          Long, 98 Hawai‘i at

355, 48 P.3d at 602 (2002).       Accordingly, the circuit court did




(. . . continued)

that the “appropriate inquiry is whether a lab’s techniques have deviated so
far from generally accepted practices that the tests results cannot be
accepted as reliable.” 956 P.2d 486, 493 (Ariz. 1998), abrogated on other
grounds by State v. Machado, 246 P.3d 632 (Ariz. 2011). The Tankersley court
specifically noted that ASCLD accreditation can “provide a useful gauge of
reliability, but it is not required” as a “prerequisite for admitting any
lab’s test results.” Id. (citation omitted). The court then noted that the
trial court did not abuse its discretion by qualifying expert witnesses and
admitting laboratory test results at issue where they complied sufficiently
with “the protocols of [the laboratory in question], other labs, and the
kit’s manufacturer.” Id. Thus, Tankersley does not appear to require
compliance with a manufacturer’s protocols as a prerequisite to admission of
the test results.
      30
            We note, however, that the ASCLD/LAB accreditation process has
been subject to criticism, namely that (1) “inspectors can be employed by
crime labs that are themselves reviewed by ASCLD/LAB,” (2) the “ASCLD/LAB
relies on annual self-audits” between inspections, (3) “ASCLD/LAB procedures
permit each analyst to select five cases for review during an audit” and (4)
ASCLD/LAB “require[s] inspectors to destroy their notes of inspections.”
Paul C. Giannelli, Regulating DNA Laboratories: The New Gold Standard?, 69
N.Y.U. Ann. Surv. Am. L. 617, 636-37 (2014).




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not err in permitting Jeskie to testify as to the results of the

DNA tests.

C.      Evidence of Flores’ Culpability Was Improperly Excluded by
       the Trial Court but the Exclusion Was Harmless Beyond a
                          Reasonable Doubt.

     1. Portions of Texeira’s Third-Party Culpability Evidence Were
                  Admissible Under HRE Rules 401 and 403.

            Texeira asserts that the circuit court erred by

precluding him from adducing third-party culpability evidence

showing that Flores killed Togioka.          The circuit court

determined that the evidence should be excluded because Texeira

had not proven there was a “legitimate tendency” that Flores

could have committed the crime, as required by our holding in

State v. Rabellizsa.       79 Hawai‘i 347, 903 P.2d 43 (1995).         This

court recently determined in State v. Kato, No. SCWC-XX-XXXXXXX

(Haw. June 18, 2020), that the admissibility of third-party

culpability evidence is governed by the HRE Rule 401 relevancy

standard and the limitations provided by HRE Rule 403 and is not

subject to a legitimate tendency test.31


       31
            Justice Nakayama’s concurring and dissenting opinion (dissent)
states that “motive alone is collateral and irrelevant,” citing several cases
for this proposition. Dissent at 9-10. This was not our decision in Kato
nor is it our decision today. As we explained in Kato,

            The dissent misapprehends the holding of this opinion,
            contending that our decision would allow “third-party
            motive evidence alone” to establish relevancy. Instead,
            our opinion applies HRE Rule 401’s relevancy standard to
            proffered third-party culpability evidence in the same
            manner as that rule applies to all other evidence. It
                                                             (continued . . .)


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            Texeira argues that Flores either killed Togioka

herself or ordered another person to kill him.32           Texeira

contends the following evidence that Flores killed Togioka was

relevant and admissible: (1) Flores, while on the phone with

Kona two days before Togioka’s death, made a comment about

wanting to shoot Togioka; (2) Flores was upset at Togioka, after

learning the day before his death, that he had previously

claimed to be in a sexual relationship with her; (3) Flores was

in possession of a .22-caliber rifle that could have been used

to kill Togioka before his death; (4) Flores was arrested two

days after the killing with .22-caliber bullets; (5) Flores went

(. . . continued)

            rejects the higher burden adopted in Rabellizsa, which is
            not consistent with the Hawaiʻi Rules of Evidence. . . . As
            stated, we do not hold that evidence of a third party’s
            motive on its own will ipso facto allow admissibility of
            such evidence, instead HRE Rule 401 and Rule 403 govern.

No. SCWC-XX-XXXXXXX, at 40 n.29 (citations omitted).
      32
            At trial, defense counsel argued that Kona, Pagala, or Flores
killed Togioka. On appeal, Texeira only challenges the circuit court’s
refusal to admit evidence tending to show Flores killed Togioka. Texeira was
not precluded from introducing evidence that Kona killed Togioka, so we do
not consider whether evidence of his culpability should have been admitted.
Additionally, defense counsel expressly stated at trial that he was not
claiming that Pagala killed Togioka, and he thus did not preserve this
contention. Even under a plain error review, Texeira does not identify on
appeal evidence he would have used to show Pagala killed Togioka. As part of
the proffer of Flores’ culpability, Texeira stated that Flores gave Pagala
.22-caliber bullets, Pagala was arrested the day after the murder with Flores
and in possession of a .22-caliber rifle and bullets, and Pagala came to
Kona’s house the night of the murder with Flores. As this evidence was
actually proffered as evidence of Flores’ culpability, the determination of
whether the evidence should have been admitted ultimately depends on the
resolution of the admissibility of the third-party culpability evidence
regarding Flores, and this evidence is thus considered in that light.




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to Kona’s home the night after Togioka’s death and was

“paranoid” and “did not seem herself”; (6) Flores’ lawyer stated

that the evidence implicated her in Togioka’s killing; (7)

Flores had previously tortured a person who owed her money; and

(8) Flores gave a false alibi to the police and her whereabouts

were not verified.33     We first consider the relevance of each

proffered piece of evidence.

            “‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”             HRE Rule

401 (2016).    The evidence that Flores told Kona she wanted to

shoot Togioka a few days before he died is probative of her

motive to kill Togioka and is therefore relevant to a fact of

consequence to the determination of the action: that Flores was

responsible for killing Togioka, making it less probable that

Texeira committed the offense of which he was charged.             See

Tibbs v. State, 59 N.E.3d 1005, 1011 (Ind. Ct. App. 2016)

(“Evidence which tends to show that someone else committed the

crime makes it less probable that the defendant committed the
      33
            The KPD reviewed surveillance footage from a McDonald’s in Eleʻele
to corroborate a statement Flores made during her November 2 interview
regarding her whereabouts on the night that Togioka was killed, and the
police report noted that she was not shown in the footage. However, Flores
had told the interviewing officers that she was at the McDonald’s on the
night of either October 29 or 30, 2016, and it appears KPD mistakenly
reviewed the footage from October 31.



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crime and is therefore relevant under [Evidence] Rule 401.”)

(alteration in original); see also State v. Pepin, 940 A.2d 221

(N.H. 2007) (upholding trial court’s finding that defendant’s

prior threat was relevant to show his intent when directed at

the same victim).    Similarly, the evidence that Flores was angry

with Togioka at that time and had confronted him because she had

recently learned that he had claimed to be in a sexual

relationship with her would tend to make it more probable that

Flores had a motive to kill Togioka.        Thus, it is relevant

evidence under HRE Rule 401.

          Texeira also argued that Flores had access to a gun

that was potentially the murder weapon and was arrested with

.22-caliber bullets that could have been used to kill Togioka

two days after Togioka’s death.       Generally, the mere fact that

an allegedly culpable third-party possessed a weapon of the same

caliber as the one used in the crime has minimal probative

value, but this value is significantly enhanced if the

surrounding circumstances permit the jury to infer that the gun

was in fact used in the crime.       See, e.g., People v. Brown, 697

N.Y.S.2d 892 (N.Y. App. Div. 1999) (defendant’s possession of a

silver .380-caliber handgun four days before the charged crime

was properly admitted in view of evidence that one of the

participants in the crime carried a silver .380-caliber

handgun); People v. Sheriff, 652 N.Y.S.2d 916, 917 (N.Y. App.

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Div. 1996) (holding that defendant’s possession of a distinctive

chrome-plated handgun subsequent to alleged murder was

admissible).    Here, although the .22-caliber rifle and

ammunition in Flores’ possession were not distinctive, the fact

that evidence indicated Flores was in possession of the weapon

the day before Togioka’s death, coupled with the other proffered

evidence, has “a tendency, either directly or circumstantially,”

to show that Flores may have been the person who killed Togioka,

and thus the evidence is relevant under HRE Rule 401.34            Kato,

No. SCWC-XX-XXXXXXX, at 41.

           The evidence that Flores was acting “paranoid” and

“did not seem herself” shortly after Togioka’s death also has a

tendency to show the existence of a fact of consequence--that

Flores killed Togioka--and thus is relevant under HRE Rule 401.

See Brunson v. State, 245 S.W.3d 132, 141 (Ark. 2006) (evidence

showing defendant’s strange behavior towards victim was relevant

to his murder conviction); Horton v. State, 217 So.3d 27, 57-58

(Ala. Crim. App. 2016) (stating that evidence of strange


     34
            Although Texeira’s argument that Flores gave a false alibi was
not substantiated by the KPD, Texeira correctly notes that her whereabouts on
the night of Togioka’s death were unverified. The only evidence of Flores’
whereabouts on that evening is Flores’ statement to the police in which she
repeatedly stated she could not recall where she was or what she was doing on
the evening of October 31, 2016. After repeatedly denying any recollection,
Flores finally stated that she was at her home alone with Pagala that evening
after the officers told her that the evidence implicated her in Togioka’s
death.




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behavior before and after the murder was relevant, but

concluding the specific evidence at issue was properly excluded

as it was collateral); Harris v. State, No. 14-16-00282-CR, 2018

WL 1004879, at *3 (Tex. Ct. App. 2018) (finding that appellant’s

strange behavior before a murder contributed to the sufficiency

of the evidence in his conviction).35

           Texeira also appears to argue on appeal that he should

have been able to introduce into evidence a declaration that

Flores’ counsel attached to the notice of intent to claim the

privilege against self-incrimination, which Flores filed after

the State revoked her immunity.        However, a personal opinion by

Flores’ counsel as to whether or not the evidence implicated

Flores does not tend to make it more or less likely that Flores

killed Togioka or was responsible for his death.            Accordingly,

Flores’ counsel’s statement is not relevant.


       35
            The dissent asserts that Flores’ paranoid behavior is not
probative of a guilty mind because Flores was acquainted with Togioka and
speculates that her paranoid behavior was merely an expression of grief.
Dissent at 16 n.11. The dissent’s speculative explanation for Flores’
conduct is unsupported by any evidence and, more importantly, the fact that
evidence is consistent with more than one narrative does not mean that it is
irrelevant. To be relevant, evidence need only have any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
HRE Rule 401. The evidence does not need to conclusively demonstrate the
existence of a fact to the exclusion of all other possible explanations, as
the dissent essentially asserts. The dissent also appears to argue that
evidence of Flores’ guilty mind is measured differently because she was a
third party. Dissent at 16 n.11. As explained, however, evidence of a third
party’s culpability is not a special species of evidence and is governed like
other evidence by the Hawaiʻi Rules of Evidence. Kato, No. SCWC-XX-XXXXXXX,
at 34.



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            Finally, Texeira maintains the evidence that Flores

had previously tortured a person who owed her money is relevant

to show that Flores had a motive to kill Togioka or intimidated

other witnesses into testifying falsely.         Breen, who allegedly

saw a video of Flores torturing someone, would have testified

that in the video Flores used an electroshock weapon to torture

a debtor.   Standing alone, this testimony is not relevant.

Because of the absence of evidence connecting Breen’s statements

about the video to the other witnesses at trial, this evidence

is not relevant to whether Flores intimidated any of the

witnesses into testifying falsely.

            The dissent maintains that “third-party culpability

evidence is a different species than evidence of the defendant’s

own guilt.”    Dissent at 8; see also dissent at 12-13.          We

rejected this categorization of evidence in Kato, noting that

the Hawaiʻi Rules of Evidence “govern proceedings in the courts

of the State of Hawaii.”      No. SCWC-XX-XXXXXXX, at 33 (quoting

HRE Rule 101 (2016)).     We further explained that “the basic

precondition for admissibility of all evidence is that it is

relevant as that term is defined in HRE Rule 401.”           Id. (quoting

Medeiros v. Choy, 142 Hawaiʻi 233, 245, 418 P.3d 574, 586

(2018)); People v. Hall, 718 P.2d 99, 104 (Cal. 1986) (“[C]ourts

should simply treat third-party culpability evidence like any

other evidence: if relevant it is admissible (§ 350) unless its

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probative value is substantially outweighed by the risk of undue

delay, prejudice, or confusion (§ 352).” (emphasis added)); see

also People v. Young, 445 P.3d 591, 614–15 (Cal. 2019) (“In

other words, courts treat third party culpability evidence ‘like

any other evidence: if relevant it is admissible, . . . unless

its probative value is substantially outweighed by the risk of

undue delay, prejudice, or confusion.’” (quoting People v.

Lewis, 28 P.3d 34 (Cal. 2001))).

            As stated, we reconsidered the appropriateness of the

legitimate tendency test in Kato and held that the admissibility

of third-party culpability evidence is governed by HRE Rule 401

and HRE Rule 403.     No. SCWC-XX-XXXXXXX, at 34-40.         Under HRE

Rule 401, the standard is whether the evidence has any tendency,

“either directly or circumstantially,” to show the third person

was responsible for the charged offense.36          Id. at 37.

            Evidence that is relevant under HRE Rule 401 may still

be excluded under HRE Rule 403 if its probative value is

      36
            The dissent relies upon State v. R.Y., No. 081706, 2020 WL
2182230 (N.J. May 6, 2020), dissent at 14, which held that, for third-party
culpability evidence to be relevant, “[s]omewhere in the total circumstances
there must be some thread capable of inducing reasonable men to regard the
event as bearing upon the State’s case.” R.Y., No. 081706, 2020 WL 2182230,
at *9 (alteration in original) (emphasis added) (holding that the trial court
erred in excluding third-party culpability evidence because the proffered
evidence was not “mere conjecture” and pertained to an essential feature of
the State’s case). Rather than importing a standard from another
jurisdiction for one species of evidence, we apply the relevancy standard set
forth in the Hawaiʻi Rules of Evidence to ensure consistent application of our
rules to all categories of evidence, as indeed HRE Rule 101 requires.
Medeiros, 142 Hawaiʻi at 245, 418 P.3d at 586.



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substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.37         HRE Rule 403; Medeiros,

142 Hawai‘i at 248, 418 P.3d at 589.         When weighing probative

value versus prejudicial effect in this context, a court must

consider a variety of factors, including “the need for the

evidence, the efficacy of alternative proof, and the degree to

which the evidence probably will rouse the jury to overmastering

hostility.”    State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273

(1992).   As stated in Kato, a trial court should resolve a close

question of admissibility in favor of the defendant.             No. SCWC-

XX-XXXXXXX, at 36 (citing Winfield v. United States, 676 A.2d 1,

6-7 (D.C. 1996)).

           Evidence that Flores told Kona she’d like to shoot

Togioka a few days before his death is highly probative because

it demonstrates Flores’ desire to have Togioka killed.38             State

     37
            HRE Rule 403 (2016) provides as follows: “Although relevant,
evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
     38
            The dissent criticizes our consideration of Kona’s statement that
Flores said something to him about wanting to shoot Togioka during a
telephone conversation two days before the killing because, according to the
dissent, Texeira did not draw “the circuit court’s attention” to Kona’s
statement in his trial memorandum. Dissent at 11 n.7. Contrary to the
dissent’s assertion, Texeira attached Kona’s statement to the police as an
exhibit to his trial memorandum, cited the precise page on which Kona related
                                                             (continued . . .)


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v. Cordeiro, 99 Hawai‘i 390, 417, 56 P.3d 692, 719 (2002)

(threats to shoot victim were highly probative where murder

weapon wasn’t recovered).       The evidence that Flores was upset at

Togioka for claiming to be in a sexual relationship with her is

also probative of Flores’ motive.         See Renon, 73 Haw. at 39, 828

P.2d at 1274 (“[B]ecause a motive is ordinarily the incentive

for criminal behavior, its probative value generally exceeds its

prejudicial effect[.]” (alterations in original)).            The

probative value of the proffered evidence is increased by the

fact that Flores learned of Togioka’s claim and made a

threatening type of statement only two days before Togioka’s

death.   Martin, No. SCWC-XX-XXXXXXX, 2020 WL 1934475, at *18

(Haw. April 22, 2020) (noting that the challenged statement was

made only an hour before the charged crime occurred).

Conversely, the State would not be prejudiced by this evidence

because there is minimal concern that it would constitute a

waste of time or confuse the jury.         Thus, the probative value of

this evidence is not substantially outweighed by its prejudicial

effect, and its exclusion was not supported by HRE Rule 403.




(. . . continued)

Flores’ comment, and sought the admission of Kona’s statement into evidence.
Accordingly, the statement was presented to the circuit court for its
consideration, and the dissent’s contention is unavailing.



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           As noted, Flores’ possession of a .22-caliber rifle

and bullets is only mildly probative in and of itself.             However,

when considered in light of the other evidence, namely that

Togioka was killed by a .22-caliber firearm, the fact that the

murder weapon is contested, and that there is evidence Flores

possessed the weapon the day of Togioka’s death and was still in

possession of .22-caliber ammunition two days later, the

probative value of Texeira’s proffered evidence is heightened

and is not substantially outweighed by its prejudicial effect.39

           Evidence that Flores was acting “paranoid” and “not

herself” the night after Togioka was killed arguably may be

probative as evidence of a guilty state of mind.            The timing of

when the observation of Flores was made and that it was observed

in Kona’s home--where the gun was taken from and returned--lends

probative value to the evidence and it posed little risk of

wasting time or confusing the jury.         Thus, the admission of this

evidence would not be substantially more prejudicial than

probative.




     39
            The probative value of this evidence is further enhanced by the
fact that Flores was unable to recall her whereabouts on the night Togioka
was killed and the only alibi she offered, after multiple denials of any
recollection of her whereabouts, was that she was alone at home with Pagala.
Kato, No. SCWC-XX-XXXXXXX, at 35-36 (“A defendant need not place the third
party at or near the scene of the crime; it is sufficient for relevancy
considerations that the defendant has provided direct or circumstantial
evidence tending to show that the third person committed the crime.”).



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            Finally, although we have already concluded that the

evidence that Flores tortured a debtor with an electroshock

weapon is irrelevant, we note that even assuming marginal

relevance of this evidence, its probative value is exceedingly

low because it is unclear when the alleged incident occurred,

the debtor was not Togioka, the motive to harm may have been

different, and the weapon used is not the same type of weapon

used in this case.    Admitting this evidence would also require

consideration of ancillary evidence, such as circumstances

relating to the reliability and the contents of the video, which

would involve confusion of the issues.         The probative value is

thus substantially outweighed by the factors set forth in HRE

Rule 403.

            Accordingly, the circuit court erred in excluding the

evidence that Flores (1) told Kona she would like to shoot

Togioka two days before his death; (2) was angry and upset at

Togioka shortly before his death because she found out that he

had claimed previously to be in a sexual relationship with her;

(3) was in possession of a .22-caliber rifle the day of

Togioka’s death, (4) was arrested two days after Togioka’s death

with .22-caliber bullets; and (5) went to Kona’s home the

following evening after Togioka’s death and was “paranoid” and

“did not seem herself.”     See Medeiros, 142 Hawai‘i at 248, 418

P.3d at 589.

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   2. The Exclusion of Texeira’s Third-Party Culpability Evidence
                Was Harmless Beyond a Reasonable Doubt.

       “In applying the harmless beyond a reasonable doubt

standard, the court is required to examine the record and

determine whether there is a reasonable possibility that the

error complained of might have contributed to the conviction.”

State v. Souza, 142 Hawai‘i 390, 402, 420 P.3d 321, 333 (2018)

(brackets omitted) (quoting State v. Mundon, 121 Hawai‘i 339,

368, 219 P.3d 1126, 1155 (2009)).

          This is a case where there appears to be a “wealth of

overwhelming and compelling evidence tending to show the

defendant guilty beyond a reasonable doubt.”          State v. Rivera,

62 Haw. 120, 127, 612 P.2d 526, 532 (1980).          Dela Cruz testified

that he and Texeira picked up Togioka, they drove together to

Kona’s house, and Togioka and Texeira went into the home.             Kona

testified that Texeira asked him if he knew where Texeira’s gun

was at that time, and he told Texeira where to find it.            Schmidt

testified that Texeira retrieved the gun from the shelf behind

the house and then Texeira, Dela Cruz, and Togioka left Kona’s

house together in a car.      Dela Cruz testified that after they

parked near Burns Field, Texeira and Togioka left the car and

walked a short distance away.       Dela Cruz then heard gunshots and

heard Togioka yell, “you shot me.”        He saw Togioka face down on

the ground, only 15-20 feet in front of the vehicle.            Dela Cruz


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stated that he saw Texeira return to the car with a .22-caliber

revolver, then he and Texeira drove away, and Texeira told Dela

Cruz that he shot Togioka.

            Kona and Pagala testified that Texeira confessed to

killing Togioka.     Kona testified that Texeira told him in prison

that he shot Togioka in the arm and the head, accurately

identifying where the bullet wounds on Togioka were found.

Pagala similarly testified that Texeira said he shot Togioka in

the head and arm.

            The State introduced a confession letter, as well as

evidence that indicated that Texeira was its author.             The

confession letter stated that Texeira had wrestled his gun away

from Togioka and then shot Togioka twice.40          Texeira’s cell phone

was shown to be in the area where Togioka was killed at the time

of his death.    Texeira also acknowledged being in the general

area at that time during his November 4, 2016 interview with Lt.

Jenkins.    Texeira sent a text message stating “All pau” to Kona

about the time that the evidence indicated Togioka’s death

occurred.    Most significantly, DNA evidence on a cigarette

recovered next to Togioka’s right calf matched Texeira’s DNA



      40
            Although the writer of the letter stated that the killing of
Togioka was an act committed in self-defense, this defense was not raised or
argued at trial; instead Texeira contended the killing was committed by Kona,
Pagala, or Flores.



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profile with the odds that the DNA belonged to a different

individual being in the octillions.

          On this record, there is no reasonable possibility

that the exclusion of the third-party culpability evidence

contributed to Texeira’s conviction.        Accordingly, the circuit

court’s error in excluding the third-party culpability evidence

was harmless beyond a reasonable doubt.

                           IV.    CONCLUSION

          For the foregoing reasons, the circuit court’s

Judgment and Sentence of Conviction is affirmed.



Craig A. De Costa                        /s/ Sabrina S. McKenna
Daniel G. Hempey
for appellant                            /s/ Richard W. Pollack

Tracy Murakami                           /s/ Michael D. Wilson
for appellee




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