***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** Electronically Filed Supreme Court SCWC-XX-XXXXXXX 28-JUN-2019 11:06 AM IN THE SUPREME COURT OF THE STATE OF HAWAII ---o0o--- STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. NINO ABRIGO, Petitioner/Defendant-Appellant. SCWC-XX-XXXXXXX CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1DTA-16-01924) JUNE 28, 2019 McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., DISSENTING, WITH WHOM NAKAYAMA, J., JOINS OPINION OF THE COURT BY POLLACK, J. An exception to the evidentiary rule against hearsay typically allows public records to be admitted into evidence to prove the truth of their contents, as such documents are generally presumed to be accurate and reliable. The rule contains two exclusions, however, that collectively prohibit using the public record exception to admit observational and ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** investigative police reports against defendants in criminal cases. These exclusions ensure that law enforcement personnel testify in person when the contents of their police reports are sought to be admitted as evidence in a trial, thereby allowing the defendant an opportunity to confront and cross-examine police officers regarding statements in their reports. However, another hearsay exception in our evidentiary rules permits the previously recorded recollections of a witness to be read into evidence when the witness is unable to sufficiently recall the subject matter of the statements to testify fully and accurately at trial. Applied literally, this second exception would appear to provide a path to circumvent the prohibition on the use of observational and investigative police reports against defendants in criminal cases. This path of circumvention oddly would only occur when the law enforcement official who prepared or signed-off on the report testifies to insufficient recollection of the events underlying the report to be subject to meaningful cross-examination. Such a situation occurred in this case, resulting in the defendant being convicted on the sole basis of a police report authored by a law enforcement officer who testified at trial that he could no longer remember the material facts underlying the defendant’s arrest. 2 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** We now hold that records excluded by the public records exception cannot be read into evidence based on an alternative evidentiary ground. This is to say that litigants may not utilize another hearsay exception as a back door to bypass the restrictions contained in the public records hearsay exception. Accordingly, we vacate the defendant’s conviction and remand the case for further proceedings. I. FACTS AND PROCEDURAL BACKGROUND A. Trial On May 26, 2016, the State filed a criminal complaint against Nino Abrigo in the Hawai‘i District Court of the First Circuit (district court), charging him with operating a vehicle under the influence of an intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).1 Abrigo pleaded not guilty, and a bench trial commenced on August 1, 2016.2 The only witness called by the State was Officer Aaron Ostachuk of the Honolulu Police Department. Due to a series of 1 HRS § 291E-61(a)(1) (2007) ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals