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SCWC-16-0000429

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

STATE OF HAWAI#I,

Respondent/Plaintiff-Appellee,

vs.

ANTHONY K. CHATMAN,

Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000429; FC-CR. NO. 02-1-0011; CR. NO. 02-1-2353)

SUMMARY DISPOSITION ORDER

(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,

and Circuit Judge Chang, in place of Pollack, J., recused)

Petitioner/Defendant-Appellant Anthony K. Chatman

(Chatman) seeks review of the Intermediate Court of Appeals’

(ICA) Judgment on Appeal, which affirmed the Circuit Court of the

First Circuit’s (circuit court) order denying Chatman’s motion

for correction of the record and motion for disqualification.1

We affirm the ICA’s Judgment with respect to Chatman’s motion for

We construe these motions as Hawai#i Rules of Penal Procedure (HRPP)

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Rule 40 petitions for post-conviction relief.

Electronically Filed

Supreme Court

SCWC-16-0000429

22-FEB-2019

08:22 AM
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disqualification, but we vacate the Judgment with respect to

Chatman’s motion for correction, vacate the circuit court’s order

denying his motion for correction, and remand to the circuit

court for a HRPP Rule 40 evidentiary hearing on the motion for

correction.

On April 25, 2002, Respondent/Plaintiff-Appellee State

of Hawai#i (the State) filed a complaint charging Chatman with

attempted murder in the second degree when he,

being the parent or guardian or any other person having

legal or physical custody of [Minor], a person less than 18

years of age, did intentionally engage in conduct which is a

substantial step in a course of conduct intended or known to

cause the death of [Minor], thereby committing the offense

of Attempted Murder in the Second Degree

in violation of Hawai#i Revised Statutes (HRS) §§ 705-500 (1993),

707-701.5 (1993), and 707-656 (Supp. 1996). A jury trial

commenced on May 29, 2003.2

On June 17, 2003, Dr. Victoria Schneider 

(Dr. Schneider), a pediatrician, was called by the State to

testify as an expert on child abuse. After describing the

injuries that the Minor suffered, Dr. Schneider asked if she

could share a slide show presentation on shaken baby syndrome

with the jury to explain how shaking could have caused the

Minor’s injuries. Defense Counsel objected. After examining the

slides and concluding that they would not be misleading, the

The Honorable Karen S.S. Ahn presided over the trial and the HRPP

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Rule 40 proceedings.

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circuit court allowed Dr. Schneider to testify in conjunction

with the slide presentation, and asked her to return the

following morning on June 18, 2003 to begin her presentation. 

The court then adjourned for the day.

The June 18, 2003 trial transcript in the Record on

Appeal does not contain Dr. Schneider’s testimony on the slide

show presentation. Instead, the first page of the transcript 3

begins with Defense Counsel’s objection to Dr. Schneider’s

testimony. The trial transcript indicates Defense Counsel stated

that Dr. Schneider “was rambling on and on, and it looked like a

lecture [rather] than testimony in court.” Defense Counsel

therefore argued that “[Dr. Schneider’s] rambling narrative had

This omission in the trial transcript contrasts with the HAJIS case

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summary in the Record on Appeal, which notes that on June 18, 2013, the

following occurred:

9:04 A.M. CASE CALLED IN PRESENCE OF COUNSEL, DPA/D.

OYASATO, CA/C. KANAI AND DEFT ONLY RE: COURT’S INQUIRY

OF STATE’S OFFER OF PROOF AS TO WHAT DR. SCHNEIDER’S

OPINION WILL BE. COURT NOTED IT WAS NOT AWARE DOCTOR

WAS ALSO THE TREATING PHYSICIAN.

COURT’S RECORD MADE. DOCTOR WILL BE PROHIBITED FROM

EXPRESSING AN OPINION AS TO THE CREDIBILITY OF THE

MOTHER OR WHO MAY HAVE CAUSED INJURIES.

9:21 A.M. JURY PRESENT; CASE CALLED; APPEARANCES NOTED.

9:22-10:31 A.M. FURTHER TESTIMONY OF DR. SCHNEIDER.

9:23-9:32 A.M. [SHAKEN BABY SYNDROME] SLIDE SHOW

PRESENTATION PREPARED BY DR. SCHNEIDER.

10:31 A.M. RECESS.

10:49 A.M. RECONVENED W/COUNSEL & DEFT ONLY RE: DEFT’S

OBJECTION TO WITNESS TESTIFYING AS TO THE “HISTORY”

PROVIDED BY MOTHER AND DEFT’S FURTHER OBJECTION TO THE

WITNESS “RAMBLING NARRATIVE” DURING THE SLIDE SHOW

PRESENTATION. DEFENDANT’S ORAL MOTION FOR JUDGMENT OF

ACQUITTAL - DENIED.

10:55 A.M. JURY PRESENT.

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an undue prejudicial impact on the Defense. And for that reason,

I would request a mistrial –- in this area or in combination with

other areas.” The circuit court denied Chatman’s motion for

mistrial, but stated “your record is preserved.” At that point,

Defense Counsel began his cross-examination of Dr. Schneider. 

On June 30, 2003, the jury found Chatman guilty of

attempted murder in the second degree. Chatman appealed his

conviction and sentence to this court. We denied Chatman’s

ineffective assistance of counsel claims, without prejudice to

filing a HRPP Rule 40 petition on those claims in the future, and

we affirmed his attempted murder in the second degree conviction. 

State v. Chatman, No. 26763, 2006 WL 2236740 (Haw. Aug. 3, 2006)

(mem.).

Chatman filed his first HRPP Rule 40 petition for postconviction relief in 2008. Therein, Chatman alleged that trial

counsel was ineffective for failing to secure the presence or

testimony of a witness at trial. The circuit court denied

Chatman’s petition without a hearing. The ICA affirmed. Chatman

v. State, No. 29504, 2010 WL 1056079 (App. Mar. 24, 2010) (SDO). 

Chatman did not apply for a writ of certiorari at that time.

In 2015, Chatman filed two motions in the circuit court

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which we construe as additional HRPP Rule 40 petitions. On 4

May 18, 2015, Chatman filed a Motion for Correction or

Modification of the Record (Motion for Correction), and on

September 10, 2015, Chatman filed a Motion for Disqualification. 

On April 28, 2016, the circuit court denied both motions without

holding a hearing. The ICA affirmed. Chatman filed an

application for writ of certiorari.

We vacate in part the ICA’s Judgment on Appeal with

respect to Chatman’s Motion for Correction. Chatman argued in

his Motion for Correction that the record contained no evidence

of Dr. Schneider’s testimony on the slide show presentation. 

Chatman further stated:

[A]s a result of the missing transcript, his due process

right to a record on appeal; which includes a complete

transcript of the proceedings at trial, will continue to be

prejudiced by his inability to make substantive claims,

relating to Dr. Schneider’s Powerpoint presentation, in any

future post-conviction or habeas proceedings.

In his application for writ of certiorari, Chatman contends that

he “met his burden of proving the existence of ‘extraordinary

circumstances’ pursuant to H.R.P.P., Rule 40 (a)(3)” because he

was unaware of the missing part of Dr. Schneider’s June 18, 2003

testimony until approximately two years after he filed his first

Because HRPP Rule 40(a) specifically provides that “[t]he post4

conviction proceeding established by this rule shall encompass all common law

and statutory procedures for the same purpose,” we agree with the ICA that

Chatman’s Motion for Correction and Motion for Disqualification should be

construed as petitions for post-conviction relief pursuant to HRPP Rule 40.

(Emphasis added.)

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HRPP Rule 40 Petition.

Because Chatman did not knowingly or understandingly

fail to raise this issue in a prior proceeding, and because he

has asserted a colorable claim that this missing trial transcript

prejudiced his appeal, we conclude that Chatman is entitled to an

evidentiary hearing pursuant to HRPP Rule 40(f) on his Motion for

Correction.5

HRPP Rule 40 (2006) provides in relevant part:

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(a) Proceedings and grounds. The post-conviction

proceeding established by this rule shall encompass all

common law and statutory procedures for the same purpose,

including habeas corpus and coram nobis; provided that the

foregoing shall not be construed to limit the availability

of remedies in the trial court or on direct appeal. Said

proceeding shall be applicable to judgments of conviction

and to custody based on judgments of conviction, as follows:

(1) From Judgment. At any time but not prior to final

judgment, any person may seek relief under the

procedure set forth in this rule from the judgment of

conviction . . . .

. . . .

(3) Inapplicability. Rule 40 proceedings shall not be

available and relief thereunder shall not be granted

where the issues sought to be raised have been

previously ruled upon or were waived. Except for a

claim of illegal sentence, an issue is waived if the

petitioner knowingly and understandingly failed to

raise it and it could have been raised before the

trial, at the trial, on appeal, in a habeas corpus

proceeding or any other proceeding actually conducted,

or in a prior proceeding actually initiated under this

rule, and the petitioner is unable to prove the

existence of extraordinary circumstances to justify

the petitioner’s failure to raise the issue. There is

a rebuttable presumption that a failure to appeal a

ruling or to raise an issue is a knowing and

understanding failure.

. . . .

(f) Hearings. If a petition alleges facts that if

(continued...)

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It is true that Chatman did not attempt to correct the

record on direct appeal or in his first HRPP Rule 40 petition. 

HRPP Rule 40(a)(3) provides that “Rule 40 proceedings shall not

be available and relief thereunder shall not be granted where the

issues sought to be raised have been previously ruled upon or

were waived.” There is also “a rebuttable presumption that a

failure to appeal a ruling or to raise an issue is a knowing and

understanding failure.” HRPP Rule 40(a)(3).

But here, Chatman presents facts sufficient to rebut

the presumption that he “knowingly and understandably” failed to

raise the claim previously. Chatman notes that he was only made

aware of the missing portion of the June 18, 2003, trial

transcript when his appellate attorney released the transcripts

of the proceedings to him in 2010, after his first HRPP Rule 40

petition was denied without a hearing.

Chatman could not have raised any claim that the trial

transcript was incomplete, nor could he have filed a motion for

correction of the record under Hawai#i Rules of Appellate

(...continued)

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proven would entitle the petitioner to relief, the court

shall grant a hearing which may extend only to the issues

raised in the petition or answer. However, the court may

deny a hearing if the petitioner’s claim is patently

frivolous and is without trace of support either in the

record or from other evidence submitted by the petitioner.

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Procedure (HRAP) Rule 10(e), until he saw the trial transcripts. 6

Therefore, on this record, Chatman has presented facts sufficient

to rebut the presumption that he knowingly and understandably

waived the right to correct the record. See De La Garza v.

State, 129 Hawai#i 429, 443, 302 P.3d 697, 711 (2013)

(determining that because the HRPP Rule 40 petitioner did not

have any opportunity to raise the issue of the Hawai#i Paroling

Authority’s nondisclosure of evidence in any other proceeding

actually conducted, he “presented facts sufficient to rebut the

presumption that he knowingly and understandingly waived the

issue”).

Furthermore, we conclude that Chatman has asserted a

colorable claim that Dr. Schneider’s missing trial testimony may

have specifically prejudiced his appeal. On the issue of

incomplete trial records, this court has previously stated that

“[t]he general rule is that where the transcripts of a

defendant’s trial are incomplete because they omit portions of

HRAP Rule 10(e) (2012) provides in relevant part:

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(e) Correction or modification of the record.

. . . .

(2) If anything material to any party is omitted from the record

by error or accident or is misstated therein, corrections or

modifications may be as follows:

(A) by the stipulation of the parties; or

(B) by the court or agency appealed from, either before or

after the record is transmitted; or

(C) by direction of the appellate court before which the

case is pending, on proper suggestion or its own initiative.

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the trial proceedings, such omissions do not mandate reversal

unless they specifically prejudice the defendant’s appeal.” 

State v. Kiese, 126 Hawai#i 494, 508, 273 P.3d 1180, 1194 (2012).

Here, while Defense Counsel made an oral motion for a

mistrial following Dr. Schneider’s testimony and the circuit

court assured Chatman that “your record is preserved,” the

testimony which was objected to was not preserved. This omission

may have specifically prejudiced Chatman’s appeal. See id. As

such, Chatman’s Motion for Correction alleges facts that if

proven would entitle Chatman to relief, i.e., correction or

modification of the record. The circuit court erred in denying

Chatman’s Motion for Correction without a hearing. The ICA

similarly erred in affirming the circuit court’s order on this

claim.

However, the ICA did not err in affirming the circuit

court’s order denying Chatman’s Motion for Disqualification. 

Because the circuit court judge in this case has retired, the

judge will not preside over any further proceedings involving

Chatman. Accordingly, Chatman’s Motion for Disqualification is

moot. See State v. Fukusaku, 85 Hawai#i 462, 474-75, 946 P.2d

32, 44-45 (1997) (“[T]he mootness doctrine is properly invoked

where events have so affected relations between the parties that

the two conditions for justiciability relevant on appeal—adverse

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interest and effective remedy—have been compromised.” (emphasis

added)).

Accordingly, we vacate in part the ICA’s May 14, 2018

Judgment on Appeal and vacate in part the circuit court’s “Order

Denying Motion for Correction or Modification of the Record Filed

May 18, 2015 and Motion for Disqualification Filed September 10,

2015.” We remand the case to the circuit court for a HRPP Rule

40 evidentiary hearing on Chatman’s Motion for Correction, in

which the circuit court should determine, pursuant to HRAP Rule

10(e), whether correction or modification of the record is

appropriate. We affirm in part the ICA’s Judgment on Appeal

affirming the circuit court’s order denying Chatman’s Motion for

Disqualification.

DATED: Honolulu, Hawai#i, February 22, 2019.

Anthony K. Chatman,

petitioner/defendant-appellant

pro se

Stephen K. Tsushima for 

respondent State of Hawai#i

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna 

/s/ Michael D. Wilson

/s/ Gary W.B. Chang

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