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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-29044
                                                               27-JAN-2012
                                                               11:17 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


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

                                    vs.

         BRANDON VALEROS, Petitioner/Defendant-Appellant.


                              NO. SCWC-29044

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (ICA NO. 29044; CR. NO. 06-1-2281)

                            January 27, 2012

   RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.

                  OPINION OF THE COURT BY ACOBA, J.

           We hold in this case that the failure of Plaintiff-

Appellee State of Hawai#i (the prosecution) to disclose an alibi-

rebuttal witness was a violation of Hawai#i Rules of Penal

Procedure (HRPP) Rule 12.1,1 even though the witness had been

     1
           HRPP Rule 12.1 (2007) provides, in relevant part as follows:

                 (a) Notice by Defendant. If a defendant intends to
           rely upon the defense of alibi, the defendant shall, within
           the time provided for the filing of pretrial motions or at
           such later time as the court may direct, notify the
           prosecutor in writing of such intention and file a copy of
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previously listed as the alibi witness of Petitioner/Defendant-

Appellant Brandon Valeros (Defendant), but apparently unbeknownst

to Defendant became the prosecution’s witness.             Hence, in the

absence of a showing of good cause under HRPP Rule 12.1(f) for

granting an exception to the requirements of HRPP Rule 12.1, it

was error for the circuit court of the first circuit2 (the court)

to allow that witness to testify in order to rebut Defendant’s

alibi defense.      For the reasons stated herein then, we vacate the

court’s February 5, 2008 judgment of conviction and sentence of



            such notice with the court.
                  (b) Disclosure of Information and Witnesses. Upon
            receipt of notice that the defendant intends to rely upon an
            alibi defense, the prosecutor shall inform the defendant in
            writing of the specific time, date, and place at which the
            offense is alleged to have been committed. The defendant
            shall then inform the prosecutor in writing of the specific
            place at which the defendant claims to have been at the time
            of the alleged offense and the names and addresses of the
            witnesses upon whom the defendant intends to rely to
            establish such alibi. The prosecutor shall then inform the
            defendant in writing of the names and addresses of the
            witnesses upon whom the government intends to rely to
            establish defendant's presence at the scene of the alleged
            offense.
                  . . . .
                  (d) Continuing Duty to Disclose. If prior to or
            during trial, a party learns of an additional witness whose
            identity, if known, should have been included in the
            information furnished under section (b) of this rule, the
            party shall promptly notify the other party or the party’s
            attorney of the existence and identity of such additional
            witness.
                  (e) Failure to Comply. Upon the failure of either
            party to comply with the requirements of this rule, the
            court may exclude the testimony of any undisclosed witness
            offered by such party as to the defendant's absence from, or
            presence at, the scene of the alleged offense. This rule
            shall not limit the right of the defendant to testify in the
            defendant’s own behalf.
                  (f) Exceptions. For good cause shown, the court may
            grant an exception to any of the requirements of this rule.

(Emphases added.)

      2
            The Honorable Virginia L. Crandall presided.

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Defendant and the Intermediate Court of Appeals’s (ICA) June 3,

2011 judgment filed pursuant to its May 16, 2011 Summary

Disposition Order3 affirming the February 5, 2008 judgment, and

remand the case for a new trial.

                                     I.

           On November 6, 2006, Defendant allegedly assaulted

Kenneth Ring, the complaining witness (CW), with a collapsible

metal baton outside the “Exotic Nights” nightclub (Exotic

Nights), near the Ward Avenue and Halekauwila Street intersection

in Honolulu.    On November 13, 2006, Defendant was charged by

Felony Information with Assault in the Second Degree, HRS § 707-

711(1)(d) (Supp. 2006).4

                                    A.

           The following essential matters, some verbatim, are

from the record and the submissions of the parties.

           On March 20, 2007, before trial,5 Defendant filed a

Notice of Alibi pursuant to HRPP Rule 12.1.          The prosecution

replied that it would rely on CW and CW’s friend Robert Miller

(Miller), who was with CW on the night in question, to establish

that the offense was “committed on November 6, 2006, at

      3
            State v. Valeros, No. 29044, 2011 WL 1909109 (Haw. App. May 16,
2011). The SDO was filed by Presiding Judge Daniel R. Foley and Associate
Judges Alexa D.M. Fujise and Katherine G. Leonard.

      4
            HRS § 707-711(1) provides in relevant part: “(1) A person commits
the offense of assault in the second degree if[] . . . . (d) [t]he person
intentionally or knowingly causes bodily injury to another person with a
dangerous instrument[.]”

      5
            Trial was originally scheduled to commence on June 25, 2007, but
was continued. Trial began on November 9, 2007.

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approximately 2:20 a.m.[,] at or near the intersection of

Halekau[w]ila Street and Ward Avenue[.]”         On April 11, 2007,

Defendant filed a response, stating that on the date and time of

the offense, Defendant was in the “Club Electro” (Club Electro)

parking lot in Pearl City, Oahu, with alibi witnesses Jamison

Benavides (Benavides) and Timothy Santiago (Santiago).            Defendant

provided addresses and phone numbers for these witnesses.

           Defendant’s trial counsel declared that on June 15,

2007, the prosecution informed the court and Defendant that it

was having difficulty contacting Defendant’s alibi witnesses.               On

July 18, 2007, David Lee, an investigator for the prosecution

(investigator), visited Santiago in the Kalihi area on Oahu and

obtained a verbal statement from him, which the prosecution

apparently believed rebutted Defendant’s alibi.           Santiago refused

to give a written statement.       The prosecution did not notify or

disclose this information to Defendant.

            According to Defendant’s trial counsel’s later

declaration in support of Defendant’s motion for a new trial, on

August 24, 2007, the prosecution informed the court and opposing

counsel that it could not confirm the alibi and that the

prosecution would be proceeding to trial.          Then, “[a]t a

scheduling conference prior to trial,” on November 6, 2007,

Defendant informed all parties that he would only call Benavides

because Defendant could no longer locate Santiago.




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           However, at the November 15, 2007 post-trial conference

to settle jury instructions, the prosecution disclosed that

within “two days” of being informed that Defendant could not

locate Santiago, Santiago was discovered on the Big Island, and

“was [thereafter] returned to Oahu to testify in [Respondent’s]

rebuttal case.”    The record does not reflect the exact dates when

Respondent located Santiago on the Big Island (as opposed to July

18 in the Kalihi area on Oahu), but “two days” from the time

Defendant told the prosecution that Santiago could not be located

would have fallen on November 8, 2007.

                                     B.

                                     1.

           On November 8, 2007, jury selection commenced.            The

case proceeded to trial the next day, November 9, 2007.

           During its opening statement, the prosecution told the

jury that the evidence would show that Defendant committed the

charged offense, and that Defendant would be relying on an alibi

defense:
           Now we expect that the defense which is under no obligation
           to put on any defense at all but will present witnesses that
           will say that [Defendant and his associates] weren’t [at the
           scene], so-called alibi witnesses, but those very witnesses
           are Jamison Benavides and perhaps Timothy Santiago which the
           State will show are simply not believable witnesses and have
           every reason to make up this story, to make up this alibi,
           [sic] will not be credible.

During his opening statement, Defendant told the jury that at the

time of the incident, Defendant was “miles away in Pearl City




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. . . with his own friends, doing his own thing, having his own

fun.”

                                       2.

              At trial, CW testified that around 10:30 or 11:00 p.m.

on November 6, 2006, he and two associates, Miller and Durham,

went to club “Femme Nu” (Femme Nu) where they had four to five

drinks.     Approximately three hours later, CW and his friends went

to Exotic Nights, located on Ward Avenue.             CW testified that he

was not “completely intoxicated” but had a “buzz.”              After

spending fifteen minutes at Exotic Nights, the trio left and

walked towards Ward Avenue, near Sports Authority, to hail a

taxi.

              As CW and his two friends were walking, they saw a

“flat bed pickup truck with two gentlemen on the back” and one

man in the front cabin.         The truck stopped approximately twelve

feet from CW, and three men exited the vehicle.              When the men,

whom CW described as “Polynesian, maybe Samoan,” were about ten

feet away, one of them deployed a metal baton.              Miller and Durham

ran away, but CW sat on the sidewalk “right in front” of the

pickup truck and watched the men chase his friends.6

              After chasing Miller and Durham for about five seconds,

the three men returned to the truck and saw CW.              The man holding




        6
            CW’s friends were Caucasian; CW, who was half white and half
Asian, felt that he could avoid any confrontation.

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the collapsible metal baton7 approached CW and asked him if he was

“looking for trouble.”      CW said he was looking for a taxi, and

the man struck CW on the head with the baton saying, “Don’t go

looking for trouble.”     CW believed that he suffered a slight

concussion.   The men then drove off and Durham and Miller called

the police.

           Officer Tanita testified that he responded to a call

around 2:23 in the morning requesting assistance regarding an

incident on Ward Avenue.      When Officer Tanita arrived at the

scene, CW said that a man had “hit” him.         CW then gave Officer

Tanita a description of the assailant.

           There were some discrepancies between the description

of the assailant noted by Officer Tanita and that offered by CW

during trial.    At trial, CW testified that he verbally told

Officer Tanita that his assailant was a large Polynesian male,

approximately five feet nine inches to five feet ten inches in

height, weighing approximately 200 to 220 pounds, who had

“tribal” tattoos “running down both sides of his arms and that he

also had a chain.”     He denied telling Officer Tanita that the

suspect had long hair.      CW also testified that he told Officer

Tanita that he believed the truck in which his attacker and the

other men had ridden was a black Ford pickup truck.




      7
            CW testified that he was familiar with collapsible batons. He
testified that a collapsible baton is six inches in length, can expand to 12
or 16 inches, and can have three or four sections.

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           Officer Tanita testified that, after hearing CW’s

version of events, he filled out a “252” statement8 because CW was

not “calm” enough to write it himself.         Officer Tanita recalled

that CW told him that the vehicle in which four (not three) male

suspects rode was a black Ford “F150,” and that the man who

struck CW was a local “Polynesian,” five feet nine inches tall,

who was wearing a white shirt.        Officer Tanita remembered that CW

did not mention that the suspect had earrings, piercings on his

face, floppy shoelaces, or a chain hanging from his clothing.

Officer Tanita could not recall if CW told him that the suspect

had tattoos.    Officer Tanita indicated, however, that he may have

been mistaken about the description because he “[u]sually . . .

ha[s] eight to a dozen” reports to fill out in a night.             Officer

Tanita stated CW appeared to be under the influence of alcohol,

but seemed coherent.

           At the scene, CW’s friend Miller also provided a

description of the assailant and completed a “252" statement.

At trial, Miller admitted that in his 252 statement he indicated

that the suspect had black hair and was wearing shorts.             He did

not say that the suspect had tattoos.         He also stated, “[w]e may

be able to identify but it would be difficult.           I was not able to

get the license plate number.       My opinion is that it was . . .

[a] short bed pickup truck with a bedliner.”


      8
             According to Officer Tanita, a “252" statement is an “official
statement form which the victim . . . writes their [sic] statement of what
happened[.]”

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           After giving a statement to the police, Miller caught a

taxi with CW and Durham back to Waikiki.            Miller then decided to

go to club “Zanzabar” (Zanzabar).           As he was walking toward

Zanzabar, Miller noticed that the men “that were involved with

the assault on [CW] were just standing there.”              Miller then

walked over to a police officer and told the officer that the men

had assaulted his friends.        The officer then asked the two men

“to come with [him].”       A third suspect, later identified as

Benavides, was apprehended by a second officer.

           According to Miller, the officers then drove him to

CW’s hotel.    At approximately 5:00 a.m., CW and Miller were

separately brought to a three person field show-up9 in Waikiki,

consisting of Defendant, Benavides, and Santiago.               CW identified

Defendant as his attacker.        After Defendant was arrested, an

officer searched Defendant but did not find any weapons or

batons.

           Miller then completed another “252" form.              At trial, he

acknowledged that in his “252" form he did not indicate that the

suspect had orange hair, big boots, jeans, a “hippy chain” or

tattoos.    Nonetheless, Miller testified that he “remember[ed]”

“very clear[ly]” the man that hit CW, and described him as having

“orange hair, a black shirt, a hippy chain, big boots, and

jeans.”    According to Miller, the assailant was a “heavyset


      9
               A showup is “a pretrial identification procedure in which a
suspect is confronted with a witness or the victim of the crime.” B LACK ’ S L AW
D ICTIONARY 1506 (9th ed. 2009).

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Polynesian,” “probably 250 pounds[,]” that had “tattoos up and

down on his arms[.]”

                                     3.

           Defendant and his friend Benavides also testified at

trial to their version of the events.         According to Benavides,

who was six feet and 290 pounds, on the night in question he

drove himself, Defendant, Santiago and his friend Ryan Yamashita

[(Yamashita)] in a Honda Civic to Club Electro.”            Benavides

testified he did not own a truck.10

           After leaving Club Electro at approximately 2:00 a.m.,

the men smoked cigarettes in the club’s parking lot.            Benavides

then drove Defendant, Yamashita, and Santiago in his Honda Civic

to the “Big Kahuna” nightclub (Big Kahuna) in Waikiki.            He

traveled down Kamehameha Highway, entered the H-1 freeway, and

took the King Street exit to Kapahulu.         He did not stop anywhere

between Club Electro and Waikiki, and parked by the zoo.             Upon

leaving Big Kahuna, Yamashita left the group.          The three

remaining men were then stopped by the police and were told to

sit down because they were being placed in a lineup.

           Defendant’s testimony was consistent with that of

Benavides.   Defendant, who was five feet nine inches tall and

weighed 320 pounds, testified that on the night in question he

was wearing a black shirt, cut off jeans, and combat boots with



      10
            However, he owned a “tow truck” that has “the equipment for towing
and whatnot in it.” He owned, and ran, “Kinetic Towing.”

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red laces that laced up to the bottom of his calf.           His hair was

almost white, or bleach blonde with streaks, and he had a goatee

down to the bottom of his chin.       He had seven earrings and two

piercings on his lips.     On the night in question, he had been

carrying a chain wallet connecting his wallet to his belt loop.

He also had tattoos, consisting of a “skull with a dagger,

covered in spider webs[,]” “random old school style tattoos[,]”

“a man engulfed in flames, and a woman.”

           Defendant testified that after spending some time in

Waikiki, he was walking back to Benavides’s vehicle when one of

his friends pulled up with a tow truck.         Defendant talked to his

friend for a second, and when Defendant turned around, the police

asked him to step away from the vehicle.         Defendant also

testified that he had never been to Exotic Nights and did not

know where it was located, was not in the area of Ward and

Halekauwila on the night in issue, had never seen CW prior to

seeing him in court, had never held a baton, and never struck CW.

                                    II.

           On November 14, 2007, during the testimony of the

prosecution’s last witness, the court recessed trial for fifteen

minutes.   According to the declaration of Defendant’s trial

counsel, at that point, “the court met in chambers with both

parties[.]”   The prosecution stated that it would object if

Defendant was allowed to present his case on the following day

because a “‘rebuttal’ witness [the prosecution] had flown in” was


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scheduled to fly out that day.       “It was only at this time the

defense learned [the prosecution] had intended to call []

Santiago” to “rebut [Defendant’s] alibi.”

            After the testimony of the last witness, the

prosecution rested and the court released the jury for its lunch

break.     When the jury was no longer in the courtroom, Defendant

orally moved for a judgment of acquittal, which the court denied.

Defendant then asked that the prosecution make Santiago available

for Defendant’s counsel to speak to him.         Counsel was concerned

that, if Santiago’s testimony was inconsistent with what he had

previously related to counsel, counsel might have to become a

witness to rebut Santiago’s testimony and, as a consequence,

counsel would have to move for a mistrial.11         Defendant’s counsel

was permitted to speak to Santiago.

            After talking to Santiago, Defendant objected to the

prosecution calling Santiago to testify as a rebuttal witness, as

a violation of HRPP Rule 12.1.       Defendant maintained that the

prosecution was required to give Defendant “written notice and

[the] contact information of the names of people [the

prosecution] intend[ed] to call.”         Defendant also objected on the

ground that Santiago was not a proper rebuttal witness because


      11
            During this exchange, it also appears that Defendant sought to
compel the prosecution to turn over Santiago’s statement under HRPP Rule
16(b)(1) (requiring the prosecution to disclose “the names and last known
addresses of persons whom the prosecutor intends to call as witnesses in the
presentation of the evidence in chief, together with any relevant written or
recorded statements”). The court denied the request to turn over the
statement. Since other issues are dispositive in this case, we need not
address HRPP Rule 16.

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Defendant believed Santiago’s testimony would reinforce

Defendant’s alibi.     The prosecution replied that it did not have

to disclose Santiago because Santiago had been disclosed to the

prosecution by Defendant.      Further, according to the prosecution,

Santiago’s statement to the prosecution rebutted Defendant’s

alibi.   The court overruled Defendant’s objection.

           Defendant then renewed his objection:
                 [DEFENSE COUNSEL]: [The prosecution] is right,
           partially right, okay, insofar as we give our notice. They
           respond. We respond with specific names. And then after
           their investigation, if they’re going to have specific
           witnesses to rebut us, they need to give us written notice
           of that. And the way [the prosecution] is trying to hedge
           around that rule is by saying he’s a rebuttal witness. He
           doesn’t have to give us notice. Because it’s specifically
           to rebut our alibi we’re entitled to that notice.
                 And furthermore, [the prosecution] knew we were
           looking for this guy. And [I] told the [c]ourt as much when
           [the prosecution] was present that I lost him. I can’t find
           him. [The prosecution] . . . obviously knew where he was to
           the point where they had to make arrangements to fly him in.
                 [THE PROSECUTION]: We didn’t know where he was. We
           thought along until last -- when our status conference was,
           I think last week sometime, whenever it was when you said
           you weren’t calling [] Santiago is when I realized that you
           weren’t calling [] Santiago. And I had to go look for him.
           And that was based on defense’s representation. They gave
           us an alibi witness name and then they don’t call him.
                 [THE COURT]: Overruled at this time.

(Emphases added.)

                                    III.

           Over Defendant’s objection, Santiago testified as a

rebuttal witness.    Santiago stated that on the night in question

he went to Club Electro.      He knew Defendant as a friend of

Benavides.   Santiago said he was “drunk” when he left the club,

at which point he and Defendant entered Benavides’s car.

According to Santiago, there was no one else in the car.

Santiago could not recall what kind of car it was.

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            Santiago testified that he “dozed” and “woke up chasing

some guy[]”12 on “Ala Moana Boulevard[,]” but could not recall why

he was chasing the man, and could not remember the location of

Benavides and Defendant.       Santiago then returned to the vehicle,

went back to sleep, and woke up in Waikiki.           He did not know what

happened from the time he left the club to the time he awoke in

Waikiki.    Santiago said he could not remember because he had “a

lot” to drink.

            Santiago recalled that an investigator subsequently

asked him about the incident, but he could not recall telling the

investigator what kind of vehicle Benavides was driving or what

happened on the way to Waikiki.        Santiago remembered that the

investigator asked him questions, including whether Santiago

would complete a statement on a piece of paper.            Santiago refused

because he “didn’t really trust” the investigator and felt that

the investigator was trying to put words in his mouth.

            Santiago also said he did not want to fill out a form

because he did not want his statement to be different from what

he might have said to a “lady attorney[.]”           Santiago was “not too

sure” what he told the investigator.         When pressed by the

prosecutor, Santiago could not recall chasing a male or males

toward Exotic Nights, did not remember being near Sports




      12
             On redirect, Santiago was asked, “[D]o you remember chasing some
guys[?]”   He responded, “Yes.”

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Authority, and did not remember telling the investigator that he

was chasing males with Defendant.

            During Santiago’s testimony, the court asked counsel to

approach the bench and told the prosecution that if Santiago

could not remember what he told the investigator, the

investigator’s testimony regarding what Santiago said was hearsay

and would only be admitted in evidence to impeach Santiago.

When Santiago finished testifying, the prosecution called its

investigator as a witness.      Before the investigator testified,

the court gave the jury a limiting instruction, telling the jury

that it could only consider the investigator’s testimony to weigh

Santiago’s credibility.

            The investigator testified that Santiago said he had

been a passenger in a pickup truck that had stopped at the Sports

Authority intersection.      The investigator was asked, “Did

[Santiago] indicate what he was doing specifically at that stop

light?”   The court again instructed the jury that the

investigator’s statements were “not allowed for the truth of what

is being stated, but for credibility purposes of a prior

witness.”    The investigator related that Santiago said that he

was a “passenger in a pickup” and that “he doesn’t know why, but

[Defendant] and he started chasing two guys down the road away

from Sports Authority towards Exotic Nights.”

                                    IV.

            The next day, while discussing jury instructions,


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Defendant’s counsel asked that the limiting instruction regarding

the investigator’s testimony be included in the final jury

instructions.    The court denied the request, but cautioned the

prosecutor that Santiago’s statements to the investigator could

not be used as “rebuttal evidence” during closing argument.

           In closing argument, the prosecutor argued to the jury

that Santiago had testified to a “half-truth” because he

remembered “chasing two guys” with another person, and that

Santiago’s testimony placed him and Defendant “on Ward Avenue,

near Sports Authority, chasing guys.”         The prosecution then told

the jury, “That right there does in their alibi.           That alone

kills the defense.”     After deliberation, the jury found Defendant

guilty as charged of the offense of Assault in the Second Degree.

                                    V.

           On appeal to the ICA, Defendant argued in pertinent

part that (1) the prosecution’s last minute disclosure of

Santiago’s alibi rebuttal testimony violated HRPP Rule 12.1 and

Defendant’s constitutional rights; and (2) the prosecution

committed misconduct in closing argument by violating the court’s

instruction that Santiago’s statements to the investigator could

be considered by the jury for impeachment purposes only.             The ICA

rejected Defendant’s points of error, affirmed the court’s

decision, and denied Defendant’s request to reverse his

conviction or remand for a new trial.         Valeros, 2011 WL 1909109,

at *1-2.


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                                    VI.

           In his Application, Defendant presents the following

two questions:
           (1) Whether the ICA gravely erred in affirming the . . .
           court’s admission of Santiago’s testimony as an alibi
           rebuttal witness.
           (2) Whether the ICA gravely erred in concluding that the
           prosecutor did not violate the . . . court’s limiting
           instruction during closing argument.

           Our resolution of the first question is dispositive,

and thus we do not reach the second question posed by Defendant.

                                    VII.

                                     A.

           As to his first question, Defendant asserts that the

prosecution should have disclosed Santiago to the defense as an

“additional witness” under HRPP Rule 12.1(b) and (d) when the

prosecution learned that Santiago would provide evidence to rebut

Defendant’s alibi.     Noting that HRPP Rule 12.1(e) nevertheless

gave the court discretion to admit the testimony, Defendant

argues that the “opportunity to conduct an on-the-spot interview

in the middle of trial did not cure the undeniably prejudicial

effect on the defense strategy when defense counsel had prepared

for trial on the assumptions that (1) Santiago’s prior statement

to her confirmed the alibi, but despite her best efforts to

locate him, she (2) had to proceed to trial without Santiago

because she was unable to locate him.”

           According to Defendant, “a judicial finding that

defense counsel’s last-minute, during-trial interview of a


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possibly recanting witness as an adequate remedy for the

prosecution’s nondisclosure is hugely problematic” because it

“compels the lawyer to make herself a witness[.]”           Finally,

Defendant contends that the prosecution’s “tactics” “violated

Defendant’s right to present his alibi defense, [his] due process

right to a fair trial, and were not harmless beyond a reasonable

doubt, where the alibi defense was Defendant’s sole defense.”

           The prosecution counters that HRPP Rule 12.1(e) gives

the court discretion to allow the testimony of the undisclosed

witness.   HRPP Rule 12.1(e) provides that “[u]pon the failure of

either party to comply with the requirements of this rule, the

court may exclude the testimony of any undisclosed

witness . . . .”    (Emphasis added).      According to the

prosecution, “[a]s such it is clear . . . that the circuit court

is provided the discretion of allowing or disallowing the

testimony of any undisclosed witness.”         The prosecution also

argues that, assuming arguendo that Defendant is correct that the

prosecution should have disclosed Santiago as a witness pursuant

to HRPP Rule 12.1(b), the court did not abuse its discretion in

allowing Santiago to testify because Defendant had interviewed

Santiago prior to trial regarding the night in question;

Defendant was allowed to interview Santiago before he testified;

and Defendant failed to request a continuance based on the

allowance of Santiago’s testimony.        (Citing State v. Miller, 67

Haw. 121, 680 P.2d 251 (1984)).


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                                     B.

            The ICA held that the “HRPP Rule 12.1(b) does not

initially require disclosure unless a party intends to rely on a

witness[;] and it does not appear from the record that [the

prosecution] intended to rely on Santiago as a witness at the

time of its initial disclosure.”           Valeros, 2011 WL 1909109, at

*1.   As to HRPP Rule 12.1(d), the ICA held that Rule 12.1(d)

“only applies to an ‘additional witness whose identity, if known

should have been included in the information furnished’ pursuant

to the required disclosures under HRPP Rule 12.1(b).”             Id.

Because Santiago had already been disclosed by the defense, the

ICA concluded that “he was not an ‘additional witness’ within the

meaning of [HRPP Rule 12.1(d)].”           Id.   Finally, the ICA concluded

that Rule 12.1(e) did not require the exclusion of the offending

testimony.    Id.   According to the ICA, “[w]here Santiago was

originally [Defendant’s] own witness and the [] court gave

[Defendant] an opportunity to re-interview Santiago prior to the

latter’s testimony at trial, it was not an abuse of discretion to

allow Santiago’s testimony.”        Id.

                                    VIII.

            It is undisputed from the record that the prosecution

did not disclose to Defendant that it would use Santiago as an

“additional witness” to CW and Miller to counteract the alibi

defense.    Disclosure was to have been “promptly” made, HRPP Rule

12.1(d), when (1) the prosecution obtained Santiago’s verbal


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statement to the investigator that Defendant was present at the

scene of the crime; and (2) when it determined that it would call

Santiago as its witness, which occurred, at the latest, when it

located Santiago on the Big Island and arranged to fly Santiago

from the Big Island to testify.       At such points, Santiago,

although previously listed on Defendant’s list, became an

“additional witness,” HRPP Rule 12.1(d), for the prosecution, and

Santiago “should have been included in the information furnished

under [HRPP Rule 12.1,] section (b)[.]”

           To reiterate, HRPP Rule 12.1(b) states that the

prosecution “shall . . . inform the defendant in writing of the

names and addresses of the witnesses upon whom the government

intends to rely to establish defendant’s presence at the scene of

the alleged offense.”     (Emphasis added.)      In State v. Davis, 63

Haw. 191, 194-95, 624 P.2d 376, 379 (1981), this court adopted

the reasoning in Wardius v. Oregon, 412 U.S. 470 (1973), and held

that HRPP Rule 12.1 provides for reciprocal discovery in

conformance with due process and that discovery under HRPP Rule

12.1 is a “two-way street.13      Cf. State v. Dowsett, 10 Haw. App.

491, 498, 878 P.2d 739, 743 (1994) (“Discovery is at the very


      13
            In Wardius, the United States Supreme Court reasoned that (1) the
Due Process Clause speaks “to the balance of forces between the accused and
his accuser” and thus “[i]t would be fundamentally unfair to require a
defendant to divulge the details of his own case while at the same time
subjecting him to the hazard of surprise concerning refutation of the very
pieces of evidence which he disclosed to the State,” 412 U.S. at 476; and (2)
that because the prosecution has greater financial and personnel resources
with which to investigate and scientifically analyze evidence, in addition to
a number of other tactical advantages, if there is to be any imbalance in
discovery rights, it should work in the defendant’s favor. id. at 476 n.9.

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foundation of the fact finding process.         Faithful adherence to

discovery obligations serves the public interest: Discovery

provides the basic information which is necessary to expedite

trials and plea decisions in an already overburdened court system

and promotes fairness in the adversary system.”).

           Davis held “that once defendant has furnished to the

government the names and addresses of his alibi witnesses,

defendant has a reciprocal right to discover the names and

addresses of witnesses the government intends to rely on to rebut

or discredit defendant’s alibi witness.”         63 Haw. at 196, 624

P.2d at 380 (emphasis added).       Consequently, when the prosecution

realized it was going to rely on Santiago to place Defendant at

the scene of the offense, disclosure was required even though

Santiago was not listed as such a witness in the prosecution’s

initial notice of its witnesses under HRPP Rule 12.1(b).             Under

Davis, the prosecution was required to disclose that it would use

Santiago to rebut or discredit Defendant’s alibi even though

Santiago had been listed as a witness by the defense.            See id.

                                    A.

                                    1.

           A plain reading of HRPP Rules 12.1(b) and 12.1(d)

indicates that the prosecution had a continuing duty to disclose

Santiago as an “additional witness.”        See Davis, 63 Haw. at 194,

196, 624 P.2d at 378, 380 (noting that “the government is

required to disclose the identity of the witnesses on whom it


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will rely to establish the defendant's presence at the scene of

the offense and of any other witnesses who will be used to rebut

the testimony of defendant’s alibi witnesses[,]” and holding that

once the “defendant has furnished to the government the names and

addresses of his alibi witnesses, [the] defendant has a

reciprocal right to discover the names and addresses of witnesses

the government intends to rely on to rebut or discredit

defendant's alibi witnesses”) (internal citation omitted).

           The ICA interpreted the words “should have been

included” in HRPP Rule 12.1(d) as limiting the duty to disclose a

witness who was not disclosed “at the time of its initial

disclosure[,]” under HRPP Rule 12.1(b), Valeros, 2011 WL 1909109,

at *1, but whom the party knew at that time would place a

defendant at the scene of the offense.         However, this

interpretation would defeat the purpose of HRPP Rule 12.1

inasmuch as it would preclude disclosure of witnesses who were

discovered after initial disclosure, i.e., “learn[ed]” of “prior

to or during trial,” and would be inconsistent with the

“[c]ontinuing duty to disclose,” (emphasis added), imposed by

HRPP Rule 12.1(d).

                                    2.

           The obligation to notify the defendant of “the

existence and identity” of additional witnesses must be exercised

“promptly,” HRPP Rule 12.1(d).       The prosecution first contacted

Santiago on July 18, 2007.      At the latest, by November 8, 2007,


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the prosecution knew that it would call Santiago as a witness,

but it did not disclose his status as an alibi-rebuttal witness

until November 14, just before the defense was to start its case,

and after the prosecution had already flown Santiago from Hawai#i

to Honolulu.   Cf. State v. Sherman, 70 Haw. 334, 340, 770 P.2d

789, 793 (1989) (noting that “the prosecution is obliged, within

a reasonable time, to make available the specifics required by

[HRPP Rule 12.1(b)]”); see also Paul’s Elec. Serv., Inc. v.

Befitel, 104 Hawai#i 412, 420, 91 P.3d 494, 502 (2004) (noting

that this court has imported the reasonableness standard into

HRPP Rule 12.1, even though the “time frame [i]s not specified”

in that rule).

                                     3.

           HRPP Rule 12.1(b) does not state that a party is

excused from disclosing a witness it intends to rely upon to

rebut the defendant’s alibi, except as set forth in HRPP Rule

12.1(f).   According to the record, while Defendant had listed

Santiago as an alibi witness, he had lost track of Santiago and

was unaware that Santiago would instead be appearing as a

rebuttal witness for the prosecution.         Under these circumstances

the prosecution concealed Santiago’s new status as its alibi-

rebuttal witness.    See Sherman, 70 Haw. at 341, 770 P.2d at 793

(noting that the “purpose of the rule was to provide reciprocal

discovery between the prosecution and the defense,” (emphasis in

original), and that “[t]he adversary system of trial is hardly an


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end in itself; it is not a poker game in which [the] players

enjoy an absolute right always to conceal their cards until

played”) (internal quotation marks and citation omitted).             Thus,

the prosecution’s failure to disclose Santiago as its rebuttal

witness violated HRPP Rule 12.1.          Id.

                                   4.

           The court had the option, under HRPP Rule 12.1(e), to

exclude Santiago’s testimony.       The ICA reasoned that because the

court gave Defendant an opportunity to re-interview Santiago

before he testified at trial, the court did not abuse its

discretion when it did not exclude Santiago.          The prosecution

adds that Defendant had interviewed Santiago before trial and

could have asked for a continuance.

           However, the fact that Santiago was interviewed by

defense counsel before trial only magnified the prejudice to

Defendant caused by the prosecution’s failure to name Santiago as

its witness.   Defendant had listed Santiago as his own alibi

witness but was unable to subsequently locate him and was thus

caught by surprise upon learning that Santiago was going to be

called by the prosecution instead.

           The opportunity to interview Santiago during the middle

of trial did not cure the prejudice to Defendant from the

prosecution’s failure to abide by HRPP Rule 12.1.           HRPP Rule

12.1(d) imposes a continuing duty to promptly disclose witnesses.

Its purpose is precisely to avoid such mid-trial surprises.


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           Additionally, had Defendant known before trial that the

prosecution intended to call Santiago as a rebuttal witness,

Defendant could have adjusted his trial strategy to avoid an

alibi defense at all.     Given the inconsistencies in the testimony

of the prosecution’s eyewitnesses, CW and Miller, Defendant might

have chosen to focus solely on calling into question the

reliability of their identification testimony.           That avenue was

no longer open to Defendant when the prosecution belatedly

revealed that it was going to call Santiago.          By then, as

Defendant asserted in oral argument before this court, Defendant

was already committed to an alibi defense; both parties had

discussed the alibi defense during their opening statements, and

Defendant had pursued the defense during trial.           In fact, at the

time of its opening statement, the prosecution apparently knew

Defendant could not locate Santiago and knew that it had obtained

a statement from Santiago on July 18.         The opportunity to

interview Santiago during the middle of trial therefore did not

mitigate the prejudice to Defendant.        For the same reason, a

continuance would not have mitigated the prejudice to Defendant.

Accordingly, we reject the prosecution’s suggestion that

Defendant was required to request a continuance in these

circumstances.

                                   B.

           Under HRPP Rule 12.1(f), “the court may grant an

exception to any . . . requirements of [the] rule[]” only “[f]or


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good cause shown[.]”       The exception clause was not invoked by the

prosecution and no showing of good cause was made at trial under

HRPP Rule 12.1(f).

             Davis is instructive in this regard.          In Davis, the

defendant failed to notify the prosecution and the circuit court

that he intended to rely on an alibi defense before trial, as

required under HRPP Rule 12.1(a).           63 Haw. at 197, 624 P.2d at

381.    Instead, the defendant notified the court and the parties

that he would use an alibi defense only after the jury was

selected.     Id.    The defendant testified at trial to such a

defense and sought to have an alibi witness testify.              Id.   The

circuit court disallowed the defendant’s alibi witness from

testifying and imposed a sanction on the defendant because he

failed to comply with HRPP Rule 12.1.           Id.

             This court determined that the circuit court did not

abuse its discretion under HRPP Rule 12.1(e) in excluding the

alibi witness.       According to Davis, the circuit court had

“discretion, upon a showing of good cause, to make exceptions to

the rule so as to balance the interests of both the government

and the defendant to give both an opportunity to discover on

equal terms.”       63 Haw. at 198, 624 P.2d at 380-81 (emphasis

added).    Because there was no “good cause” shown for the

defendant’s failure to comply with HRPP Rule 12.1, this court

held the circuit court properly exercised its discretion in




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excluding the alibi witness from testifying.          Id. at 197, 624

P.2d at 380-81.

                                    IX.

           In the instant case, as explained supra, the

prosecution failed to abide by HRPP Rule 12.1 inasmuch as it had

interviewed Santiago on July 18, 2007, and then discovered “two

days” after the pretrial conference of November 6, 2007 that

Santiago was on Hawai#i, but only disclosed Santiago as a rebuttal

witness on November 14, the day that Defendant was to present his

case at trial.    This disclosure of Santiago, when it appears that

the prosecution had obtained a statement on July 18, 2007, and

knew of Santiago’s whereabouts before trial began and five days

into the trial, was not made “promptly,” HRPP Rule 12.1(d), and

was a violation of HRPP Rules 12.1(b) and (d).           The record does

not reflect any “showing of good cause” or an inquiry by the

court as to why the prosecution failed to disclose Santiago

sooner as a basis for granting an exception to the requirements

of HRPP Rule 12.1.     See HRPP Rule 12.1(f).

           Instead, the court overruled Defendant’s objection14

that Santiago should not be allowed to testify because of the

late disclosure, without providing any reasons.           Respectfully,

inasmuch as the court did not determine that “good cause” existed

for applying an exception to the prosecution’s duty to adhere to

      14
            To reiterate, Defendant objected on two grounds: that the
prosecution violated HRPP Rule 12.1, and that Santiago was not a proper
rebuttal witness. However, Defendant does not argue the latter on appeal,
and, as such, it is not addressed further.

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HRPP Rule 12.1, the court’s overruling of Defendant’s objection

was in error.    See Davis, 63 Haw. at 195-97, 624 P.2d at 379-81

(determining that a court may “make exceptions to the rule” only

“upon a showing of good cause”).          What matters is not whether

Defendant knew about the existence of Santiago, but whether

Defendant knew that the prosecution was going to use Santiago as

a rebuttal witness to the alibi defense.          See id.   To avoid

unfairly surprising Defendant, it was necessary for the

prosecution to comply with its obligation to notify Defendant

that it intended to use Santiago as a rebuttal witness.            See id.

The prosecution did not do so.       In this case, therefore,

discovery was not a “two-way street,” and the prosecution’s

failure to provide reciprocal discovery infringed upon

Defendant’s due process rights.       See id. at 195; 624 P.2d at 379.

                                     X.

           The remaining issue is whether the error was harmless.

When assessing whether an error is harmless, the question is

whether, in light of the entire proceedings, there is “a

reasonable possibility that [the] error might have contributed to

the conviction.”    State v. Veikoso, No. SCWC-30138, 2011 WL

4037979, at *10 (Haw. Sept. 12, 2011) (internal quotation marks

and citation omitted).     State v. Ah Choy, 70 Haw. 618, 780 P.2d

1097 (1989), is relevant in this regard.          In Ah Choy, the

defendant was convicted after a jury trial of attempted murder

and robbery.    Id. at 618-19, 780 P.2d at 1098-99.         The defendant


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filed a motion for a new trial on, inter alia, the ground that

the prosecution failed to list an alibi rebuttal witness pursuant

to HRPP Rule 12.1.      Id. at 620, 780 P.2d at 1099.        The circuit

court denied the motion.       On appeal, in pertinent part, the

defendant argued that the circuit court abused its discretion in

allowing the prosecution’s witness to rebut the defendant’s alibi

witness testimony since the prosecution failed to name its

rebuttal witness before trial.        Id. at 623-24, 780 P.2d at 1102-

03.   This court decided the error was harmless because the

“direct testimony” of the prosecution’s witnesses “overwhelmingly

contradicted” the defendant’s alibi witness.
            Though we are deeply troubled by the prosecutor’s failure to
            abide by our rules of discovery, State v. Davis, 63 Haw.
            191, 196-97, 624 P.2d 376, 380 (1981), we cannot ignore the
            direct testimony of the store cashier who positively
            identified Appellant as her attacker, nor the direct
            testimony of the off-duty hotel security guard who saw
            Appellant crossing from the hotel . . . . This testimony
            identifying Appellant overwhelmingly contradicted
            Appellant’s alibi witness. Accordingly, we hold the trial
            court’s admission of the rebuttal witness’ harmless error.

Id. at 625, 780 P.2d at 1103.

            Unlike Ah Choy, there was no “direct testimony” that

“overwhelmingly contradicted” Defendant’s alibi.            As shown supra,

although CW and Miller ultimately identified Defendant as CW’s

assailant, their descriptions to the police contained

inconsistencies, and Benavides and Defendant testified Defendant

was elsewhere.     The vehicle identified by the police was not tied

to Defendant, and although a wooden baton was located, it was not

the instrument used in the incident.



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           The court’s error allowed Santiago’s testimony into

evidence wherein he testified that he and Defendant were chasing

an individual on Ala Moana Boulevard.         Without Santiago’s

testimony, the investigator’s testimony would not have been

admissible, inasmuch as the investigator was called upon to

impeach Santiago.15    The investigator testified that Santiago said

he and Defendant were on Ward Avenue chasing individuals,

contradicting Defendant’s alibi defense.         It follows that the

admission of Santiago’s testimony had a pivotal role in the case

and reasonably might have contributed to his conviction.             As a

result, the admission of Santiago’s testimony was not harmless

beyond a reasonable doubt, see Veikoso, 2011 WL 4037979, at *10,

and thus, the ICA gravely erred when it held that HRPP Rule 12.1

was not violated.

                                    XI.

           Accordingly, the court’s February 5, 2008 judgment of

conviction and sentence of Defendant and the ICA’s June 3, 2011

judgment are vacated and the case is remanded for a new trial.

Karen T. Nakasone, Deputy                  /s/ Mark E. Recktenwald
Public Defender for
petitioner/defendant-                      /s/ Paula A. Nakayama
appellant.
                                           /s/ Simeon R. Acoba, Jr.
Stephen K. Tsushima, Deputy
Prosecuting Attorney, City                 /s/ James E. Duffy, Jr.
and County of Honolulu for
respondent/plaintiff-                      /s/ Sabrina S. McKenna
appellee.


      15
            We do not reach the question of whether it was proper for the
court to allow the investigator to testify to “impeach” Santiago.

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