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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,

Respondent/Plaintiff-Appellee,

vs.

ROBERT TETU,

Petitioner/Defendant-Appellant.

SCWC-13-0003062

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-13-0003062; CR. NO. 10-1-0833)

DECEMBER 5, 2016

McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J., 

CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY POLLACK, J.

This case presents the question of whether a defendant 

charged with committing a criminal offense on private property 

has a right to visit the crime scene. We hold that the 

constitutional provisions providing for effective assistance of 

counsel and a fair trial afford a defendant, subject to 

Electronically Filed

Supreme Court

SCWC-13-0003062

05-DEC-2016

10:24 AM
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appropriate restrictions, with the right to access the scene of 

the alleged offense.

I. BACKGROUND

A. Circuit Court Proceedings

On March 25, 2010, at about 2:00 a.m., a surveillance 

camera filmed Robert Tetu, who was wearing a backpack, entering

the uninhabited basement area of Maunaihi Terrace, a private 

condominium building in Honolulu. The video footage recorded 

Tetu entering into two locked utility closets with an unknown 

tool and wiping the door knobs afterwards with his jacket.1

 Tetu 

is then seen leaving the closet with a backpack-type bag in one 

hand, a black plastic garbage bag in the other hand, and a “mini 

mag light type flash light” in his mouth. The next day, after 

reviewing the video footage, the condominium manager inspected 

the storage closets and noticed that an electric grinder and

several emergency lights and batteries were missing.

On May 24, 2010, Tetu was charged with burglary in the 

second degree in violation of Hawaii Revised Statutes 

(HRS) § 708-811 (1993).2

 As part of discovery, the defense 

 1 “Storage closets” and “utility closets” are used interchangeably.

2 HRS § 708-811 provides in relevant part,

(1) A person commits the offense of burglary in the second 

degree if the person intentionally enters or remains 

unlawfully in a building with intent to commit therein a 

crime against a person or against property rights.

(continued. . .)
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received the police reports, which included copies of the 

surveillance footage, eight photographs, and two diagrams of the 

basement where the utility closets were located. The 

photographs showed the fire-exit door through which Tetu 

entered, the short hallway where the surveillance camera was 

located, the exterior doors to the utility closets, and a few 

items on the shelves inside one of the storage closets. Tetu’s 

counsel went to Maunaihi Terrace on November 18, 2010 in order 

to inspect the premises, but he was denied access and told to 

“coordinate an inspection through the resident manager.” 

Thereafter, defense counsel sent an email to the condominium 

manager to arrange a visit. The email, which was copied to the 

prosecutor, informed the manager that the prosecutor was also 

interested in visiting the condominium. In response to the 

email, the manager told Tetu’s counsel that the request would be 

presented to the condominium homeowner’s association or board of 

directors. Counsel, however, did not receive a further 

response.

Tetu filed a pretrial motion to compel discovery in 

the Circuit Court of the First Circuit (circuit court)3

 

(. . .continued)

(2) Burglary in the second degree is a class C felony.

HRS § 708-811.

3 The Honorable Colette Y. Garibaldi presided.
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requesting access to the condominium premises, arguing that 

“location is everything” and that “[t]he defense must examine 

the area from its own perspective.” The motion provided four 

reasons why access to the condominium was necessary. First, 

“[t]he State’s diagrams, video[,] and photograph discovery d[id]

not adequately orient [Tetu] and [his] counsel to the area in 

question for purposes of cogently presenting this case to a 

jury.” Second, the footage only included a “partial photo” of 

the interior of one of the utility closets. Third, noting that 

the diagrams were not drawn to scale, the defense requested 

access to “help counsel to intelligently question and crossexamine witnesses, present visual evidence to the jury and to

understand the account” of Tetu, who was in custody. Fourth, 

access was needed to “photograph areas which may be significant 

to the defense if they are not already depicted in the discovery 

already produced.” The motion requested that the court issue an 

order directing the prosecution “to make Maunaihi Terrace 

available for inspection, measurement, and photographs” or

directing the complaining witness to make the premises available 

under reasonable conditions.

The State opposed the motion, arguing that Rule 16 of 

the Hawaiʻi Rules of Penal Procedure (HRPP) (2012) only required

the prosecution to deliver material and information within the 

prosecutor’s possession or control or in the possession or 
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control of other governmental personnel. The State also argued 

that because eight months had passed before defense counsel

first attempted to access the condominium and fifteen months had 

elapsed since the incident, any inspection or photographs taken 

of the premises would not accurately depict the scene at the 

time of the offense and would not be relevant or admissible 

under Rule 4014 and Rule 4025 of the Hawaii Rules of Evidence 

(HRE). Alternatively, the State contended that, even if access 

to the premises was relevant, access should be barred under HRE 

Rule 4036 because it would be cumulative of the materials already 

provided to Tetu by the prosecution.

 4 HRE Rule 401 states in pertinent part, 

“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 (1993).

5 HRE Rule 402 provides,

All relevant evidence is admissible, except as otherwise 

provided by the Constitutions of the United States and the 

State of Hawaii, by statute, by these rules, or by other 

rules adopted by the supreme court. Evidence which is not 

relevant is not admissible.

HRE Rule 402 (1993).

6 HRE Rule 403 states,

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.

HRE Rule 403 (1993).
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A hearing was held on the motion to compel discovery. 

No representatives from Maunaihi Terrace were present. Defense 

counsel argued that Tetu’s constitutional rights to effective 

representation and to confront witnesses would override any 

privacy considerations. The circuit court concluded, however,

that any evidence at the condominium would not be relevant under 

HRE Rule 401. The court also determined that because there was 

video surveillance, there was “no real plausible justification”

for access to the crime scene. The court stated that Tetu’s 

request for access “appears to be speculative and conjecture 

with a hope to turn up something.” Additionally, the court 

noted that because time had passed since March 2010, access to 

the condominium might not have been helpful. Accordingly, the 

court held that HRPP Rule 16 did not apply to Tetu’s request for 

access and denied the motion to compel.

Approximately two months later, the prosecution--

without defense counsel’s knowledge--visited the crime scene 

with the condominium manager to inspect the basement and take 

additional photographs. When the defense was provided with 

these new photographs prior to trial, Tetu sought to exclude 

their admission into evidence. The defense argued that fairness 

demanded that the prosecution not be allowed to visit the crime 

scene and collect evidence for presentation at trial after the 

defense’s request to do the same was denied. The prosecutor 
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stated that she went to the condominium to take additional 

photographs so that the jurors could have “a bigger or a better 

idea” of what the condominium building looked like. Tetu’s

counsel argued that this was inconsistent with the State’s 

earlier position that there was “no need” to take additional 

photographs of the alleged crime scene.7

In response to the court’s question regarding the two 

sets of photographs, defense counsel stated that while the new 

photographs showed differences in the closets’ contents, major 

differences were not apparent. The court concluded that because 

of the existence of the video footage and the facts of the case, 

it stood by its original ruling denying the motion to compel 

discovery.8 The court also denied the defense’s motion to 

exclude admission of the prosecution’s newly obtained

photographs.

 7 There was a change in the assigned prosecutor between the 

defense’s motion to compel discovery and the hearing to exclude the 

additional photographs.

8 The circuit court noted, “I do recall the earlier motion [to 

compel discovery] as well since the Court presided over it.” The court 

referenced Henshaw v. Commonwealth, 451 S.E.2d 415 (Va. Ct. App. 1994), a 

case in which the defense counsel requested access to the crime scene based 

on reasons very similar to those Tetu’s counsel had articulated. There, the 

Court of Appeals of Virginia held that although defense counsel should have 

been granted access to the crime scene, the error was harmless. Id. at 420. 

The circuit court distinguished Henshaw from Tetu’s request because, in 

Henshaw, there was no video surveillance and one of the claims was selfdefense in which specifications of a room’s height, width, and length were 

relevant.
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At trial, the State’s first witness was the 

condominium manager. Using a blueprint of the condominium, the 

prosecution asked the manager to orient the court to the 

location of the elevators and the utility closets in the

basement of the building.

[Manager]: Well, there’s elevator mauka and elevator makai, 

and it’s called electrical closet and it’s called 

stor[age], but it’s another electrical closet.

[Prosecutor]: Okay. So they’re right across from each 

other, the two utility rooms?

[Manager]: Yes, and that’s the little hallway there.

The prosecution used the photographs that the defense had moved 

to exclude to identify several objects and rooms shown in the 

photographs. Next, the prosecution played the surveillance 

video for the jury and asked the manager to narrate what he saw 

and to place the events of the video in context with the 

building’s layout.

[Prosecution]: And what part of the basement is that?

[Manager]: He just headed towards the laundromat, the 

laundry room.

[Prosecution]: And is there a hallway that connects all 

sides of the basement to the elevators?

[Manager]: Sorry, yes. There’s another hallway just like 

this right on that side where he just emerged from.

The manager described Tetu breaking into two of the closets with 

some kind of tool, wiping the door handles with his jacket, and 

leaving the closets with a bag of “stuff” and a flashlight in 

his mouth. The manager testified that the wood around the door 
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knobs was damaged after the incident and that only those persons 

with keys had access to the storage closets, as he always kept 

the doors to the closets locked.

Tetu’s counsel cross-examined the condominium manager 

and likewise attempted to establish the layout of the basement 

area where the utility closets were located.

[Defense]: When we went over the photographic evidence, you 

made reference to a makai utility room and a mauka utility 

room, correct?

[Manager]: Yes.

[Defense]: Okay. And when I saw some reports referenced to 

east and northeast utility closets, do you ever use those 

distinctions?

[Manager]: I don’t, no.

[Defense]: So if there’s a reference to an east closet, 

would you be able to tell us if that’s the mauka or makai 

one?

[Manager]: I’ve never heard it referred to as the east or -

- or what did you say?

[Defense]: Northeast. So your distinction is mauka-makai? 

[Manager]: Yes.

. . . .

[Defense]: Okay. Sir, I’m going to show you Exhibits 23 

and 24 in evidence. I’ll ask you -- this is 23. Which --

which utility closet is this one?

[Manager]: This is the mauka utility closet.

[Defense]: And, okay, and 24 would be makai?

[Manager]: It’s the same -- no, it’s the same one.

[Defense]: It’s the same closet?

[Manager]: Yeah.

[Defense]: Oh, okay. Sorry. Oh, my mistake. Okay.
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Tetu testified that he did what was shown on the 

video, but that he entered the building to retrieve his thenwife’s clothing and not to steal anything. Tetu explained that 

he had been arguing with his former wife, with whom there was a 

substantial language barrier, when he dropped her off near 

Manauihi Terrace a few hours prior to the incident. He

testified that she called him to pick her up and that when he 

arrived, she let him into the building. Tetu stated that he 

went in to help her pick up her bag, and she told him that it 

was in a closet by an elevator. Tetu explained that he used a 

piece of wire to open the closet, which is where he found his

former wife’s bag. He related that he looked inside the bag to 

make sure it contained her clothes and left without taking 

anything else. Tetu testified that there were more valuable 

things in the closet, such as a computer, and that if he had 

intended to take anything, it would not have been a flashlight 

and some batteries.

Tetu’s former wife testified as a rebuttal witness for 

the State. She related that she never asked Tetu to pick up a 

bag of her clothes and that she had never been to Maunaihi 

Terrace or stored anything there.

In its closing argument, the defense argued that 

because Tetu entered with the intent to retrieve his former 

wife’s clothing and not to steal anything, Tetu was a 
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trespasser, not a burglar. The court instructed the jury on the 

elements of burglary in the second degree and criminal trespass 

in the first degree under HRS § 708-813 (Supp. 2000).9 The jury 

found Tetu guilty of burglary in the second degree, and he was 

sentenced to five years of imprisonment.

B. Appellate Proceedings

Tetu appealed the judgment of conviction to the 

Intermediate Court of Appeals (ICA), arguing that (1) the 

circuit court erred in denying his discovery request to access 

the crime scene and that (2) the verdict was not supported by 

the evidence adduced at trial. The State responded that the 

right to discovery in a felony case is the right to receive 

material and information possessed by the prosecution and its 

agents concerning the case. Because the State did not possess 

 9 HRS § 708-813 provides in relevant part,

(1) A person commits the offense of criminal trespass 

in the first degree if:

(a) That person knowingly enters or remains 

unlawfully:

 (i) In a dwelling; or

 (ii) In or upon the premises of a hotel or 

 apartment building.

. . . .

(2) Criminal trespass in the first degree is a 

misdemeanor.

HRS § 708-813.
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or have control over Maunaihi Terrace, the State maintained that

defense counsel did not have a right under HRPP Rule 16 to 

compel discovery of the condominium. Further, the State argued 

that the appearance and configuration of the condominium more 

than a year after the incident rendered Tetu’s reasons for 

requesting access irrelevant. In response, Tetu contended that 

the passage of time alone does not diminish the importance of 

accessing the crime scene and that inspecting areas of the 

property would have likely shown an exit-only door with no signs 

of forced entry, corroborating that his former wife let him into 

the condominium.

The ICA issued a memorandum opinion affirming Tetu’s 

conviction. Citing case law from other states, the ICA observed

that the court must balance the defendant’s need for access to 

the crime scene with the private party’s right to privacy. The 

ICA noted, “A speculative or conclusory showing, or the failure 

to explain how the proposed inspection would yield information 

different from that already disclosed in discovery, is 

insufficient to overcome the privacy rights of the private 

party.” The ICA held that a defendant must “make a prima facie

showing of how the proposed inspection would be relevant and 

material to his or her defense” and “demonstrate sufficient 

‘plausible justification’ and ‘good cause’ for the intrusion.’” 

The ICA ruled that Tetu did not sufficiently explain to the 
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circuit court how becoming familiar with the scene was relevant 

to his defense. Thus, it affirmed the circuit court’s order

denying Tetu’s motion to compel discovery. The ICA also 

rejected Tetu’s claim that there was insufficient evidence to 

support his conviction. 

This court granted certiorari to address the following 

questions raised by Tetu: (1) whether the ICA erred in affirming 

the circuit court’s denial of the motion to compel discovery;

and (2) whether the ICA erred in finding that Tetu’s conviction 

was supported by substantial evidence.

II. STANDARD OF REVIEW

This court reviews questions of constitutional law “by 

exercising our own independent constitutional judgment based on 

the facts of the case.” State v. Phua, 135 Hawaiʻi 504, 511-12, 

353 P.3d 1046, 1053-54 (2015); accord State v. Mundon, 121 

Hawaiʻi 339, 349, 219 P.3d 1126, 1136 (2009). Therefore, 

questions of constitutional law are reviewed under the 

right/wrong standard. Phua, 135 Hawaiʻi at 512, 353 P.3d at 

1054; accord State v. Auld, 136 Hawaiʻi 244, 250, 361 P.3d 471, 

477 (2015).
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III. DISCUSSION

A. Motion to Compel Discovery

1. Right to Access the Crime Scene Under HRPP Rule 16

The issue of whether a defendant has a right to 

inspect the crime scene is one of first impression before this 

court. A defendant has a right under HRPP Rule 1610 to discover 

“material and information within the prosecutor’s possession or 

control.” HRPP Rule 16 (2012). Because the State was not in 

possession of Maunaihi Terrace, HRPP Rule 16 does not expressly 

provide the defense with access to the crime scene.11 However,

 10 HRPP Rule 16 provides in relevant part,

(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:

 . . . .

 (2) Disclosure of Matters Not Within Prosecution’s 

Possession. Upon written request of defense counsel and 

specific designation by defense counsel of material or 

information which would be discoverable if in the 

possession or control of the prosecutor and which is in the 

possession or control of other governmental personnel, the 

prosecutor shall use diligent good faith efforts to cause 

such material or information to be made available to 

defense counsel; and if the prosecutor’s efforts are 

unsuccessful the court shall issue suitable subpoenas or 

orders to cause such material or information to be made 

available to defense counsel.

HRPP Rule 16 (2012).

11 The State cited Honolulu Police Dep’t v. Town, 122 Hawaiʻi 204, 

225 P.3d 646 (2010), in which this court stated that “the discovery right is 

governed and limited by HRPP Rule 16.” Id. at 214, 225 P.3d at 656. 

However, the discovery right under HRPP Rule 16 cannot limit a constitutional 

(continued. . .)
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the 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. See United States v. Yoshimura, 831 F.

Supp. 799, 805 (D. Haw. 1993) (“In criminal cases discovery is 

limited to that required by the due process clause of the 

Constitution, which requires that the Government make available 

evidence that is material to guilt or punishment.”); see also

United States v. Richter, 488 F.2d 170, 173 (9th Cir. 1973) 

(stating that although discovery was not allowed under Federal 

Rules of Criminal Procedure Rule 16, “the rules themselves do 

not purport to set outer limits on the power of the court”). 

Accordingly, we consider whether there is a constitutional right 

to access a crime scene when the defendant is alleged to have 

committed the offense on private property.12

 

(. . .continued)

right. See State v. Pond, 118 Hawaiʻi 452, 481, 193 P.3d 368, 397 (2008) 

(“The impairment of a defendant’s constitutional rights must be considered 

and weighed against the imposition of a rule excluding evidence. Failure to 

do so impermissibly relegates the defendant’s constitutional rights to that 

of rule status.”); cf. State v. Calbero, 71 Haw. 115, 124, 785 P.2d 157, 161 

(1989) (noting that an evidence rule “cannot override the constitutional 

rights of the accused”). To the extent that Town indicated that the 

discovery right is “governed and limited” by HRPP Rule 16, it is overruled.

12 Although it is not necessary to determine in this case, HRPP Rule 

17 may allow a court to use its subpoena power to grant access to a crime 

scene. HRPP Rule 17(b) authorizes a court to issue a subpoena to “command 

the person to whom it is directed to produce the books, papers, documents or 

other objects . . . prior to the time when they are to be offered in evidence 

and may upon their production permit . . . [the objects] to be inspected by 

the parties and their attorneys.” HRPP Rule 17(b) (2007). In Commonwealth 

v. Matis, 915 N.E.2d 212 (Mass. 2006), the Supreme Judicial Court of 

Massachusetts interpreted Massachusetts Rules of Criminal Procedure Rule 

17(a)(2), which is nearly identical to HRPP Rule 17(b), to authorize the 

court to compel access to the complainant’s home where a sexual assault 

(continued. . .)
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2. Constitutional Right to Access the Crime Scene

a. Right to Effective Assistance of Counsel

Article I, section 14 of the Hawaiʻi Constitution

guarantees a defendant in a criminal prosecution the right “to 

have the assistance of counsel for the accused’s defense.”13 

Haw. Const. art I, § 14. The constitutional right to the 

assistance of counsel is satisfied “only when such assistance is 

‘effective.’” State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 

979 (1972) (internal citations omitted). A counsel’s 

effectiveness is not determined only by what happens at trial,

and a court may find a counsel’s assistance is ineffective if 

 

(. . .continued)

allegedly occurred. Id. at 634-35. “The fact that the object here cannot be 

physically brought to court by the third party makes no difference. Its 

features can be introduced in evidence, and an order for pretrial access 

under rule 17(a)(2) will expedite the use of such evidence at trial.” Id. at 

635. The Massachusetts court noted that requests under Rule 17(a)(2) must 

be, inter alia, evidentiary and relevant. Id.

While HRPP Rule 17 is “not a rule providing for an additional 

means of discovery,” Town, 122 Hawaiʻi at 214, 225 P.3d at 656 (quoting State 

v. Pacarro, 61 Haw. 84, 86, 595 P.2d 295, 297 (1979)), the features of a 

crime scene are routinely admissible into evidence.

13 Article I, section 14 of the Hawaiʻi Constitution provides in 

relevant part,

In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial by an impartial jury of 

the district wherein the crime shall have been committed, 

which district shall have been previously ascertained by 

law, or of such other district to which the prosecution may 

be removed with the consent of the accused; to be informed 

of the nature and cause of the accusation; to be confronted 

with the witnesses against the accused . . . and to have

the assistance of counsel for the accused’s defense.

Haw. Const. art I, § 14.
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counsel failed to conduct adequate pretrial investigations. 

State v. Aplaca, 74 Haw. 54, 67-71, 67 n.2, 837 P.2d 1298, 1305-

07, 1305 n.2 (1992) (noting that “under Hawaii’s Constitution, 

defendants are clearly afforded greater protection of their 

right to effective assistance of counsel” than under the United 

States Constitution). Additionally, this court observed in 

Aplaca that “[i]f counsel does not adequately investigate the 

underlying facts of a case[,] . . . counsel’s performance cannot 

fall within the ‘wide range of reasonable professional 

assistance.’ This is because a decision not to investigate 

cannot be considered a tactical decision.” Id. at 71, 837 P.2d 

at 1307 (quoting State v. Templin, 805 P.2d 182, 188 (Utah 

1990)). The standard for determining the adequacy of counsel’s 

representation is “whether, when viewed as a whole, the 

assistance provided is ‘within the range of competence demanded 

of attorneys in criminal cases.’” State v. Antone, 62 Haw. 346, 

348, 615 P.2d 101, 104 (1980) (quoting Kahalewai, 54 Haw. at 30, 

501 P.2d at 979). Thus, a defendant in a criminal case is 

entitled to counsel who will represent him or her with the 

competence generally demanded of defense attorneys. See id.

A review of several jurisdictions’ codes and 

performance standards for defense attorneys indicates that in 

order to assure competent representation, defense counsel should 

investigate the crime scene and consider seeking access as early 
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as possible, unless circumstances suggest it would be 

unnecessary in a given case. The American Bar Association’s ABA

Standards for Criminal Justice: Prosecution and Defense Function

(ABA Standards) states, “Many important rights of a criminal 

client can be protected and preserved only by prompt legal 

action.” Id. § 4-3.7(a) (4th ed. 2015). Thus, “[d]efense 

counsel should promptly seek to obtain and review all 

information relevant to the criminal matter, including but not 

limited to requesting materials from the prosecution.” Id. § 4-

3.7(b). In addition to seeking information from other sources

aside from law enforcement, see also id. § 4-4.1(c), counsel for

a defendant has a specific duty with regard to investigating a 

case. “Defense counsel’s investigative efforts should commence 

promptly and should explore appropriate avenues that reasonably 

might lead to information relevant to the merits of the matter .

. . .” Id.14

 14 “The duty to investigate is not terminated by factors such as the 

apparent force of the prosecution’s evidence, a client’s alleged admissions 

to others of facts suggesting guilt, a client’s expressed desire to plead 

guilty or that there should be no investigation, or statements to defense 

counsel supporting guilt.” ABA Standards § 4-4.1(b). 

“Counsel’s investigation should also include evaluation of the 

prosecution’s evidence (including possible re-testing or re-evaluation of 

physical, forensic, and expert evidence) and consideration of 

inconsistencies, potential avenues of impeachment of prosecution witnesses, 

and other possible suspects and alternative theories that the evidence may 

raise.” Id. § 4-4.1(c). 
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The commentary to the ABA Standards emphasizes that 

“without adequate investigation[,] the lawyer is not in a 

position to make the best use of such mechanisms as crossexamination or impeachment of adverse witnesses at trial.”15 Am.

Bar Ass’n, ABA Standards for Criminal Justice: Prosecution 

Function and Defense Function § 4-4.1 Commentary, at 183 (3d ed. 

1993). The commentary further states that if there were

eyewitnesses to the alleged crime, then “the lawyer needs to 

know conditions at the scene that may have affected their 

opportunity as well as their capacity for observation.” Id. 

The National Legal Aid and Defender Association’s 

(NLADA) Performance Guidelines for Criminal Defense 

Representations, which was adopted by the Defender Services 

Advisory Group in 2015, also recommends early inspection of the 

crime scene:

Counsel should consider seeking access to the scene as soon 

as possible, accompanied by appropriate personnel to assist 

in documenting conditions. Counsel should consider seeking 

access to the scene under circumstances as similar as 

possible to those existing at the time of the alleged 

incident (e.g., weather, time of day, and lighting 

conditions), if different from the initial view of the 

scene. 

Nat’l Legal Aid & Def. Ass’n, NLADA’s Performance Guidelines for 

Criminal Defense Representations § 4.1(b)(6), at 10 (1995).

 15 The commentary for the most recent fourth edition of the ABA 

Standards, published in 2015, is not yet available. Thus, the prior 

edition’s commentary for the predecessor standard is referenced. 
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Chapter 211D of the Massachusetts General Laws 

establishes the Committee for Public Counsel Services that is 

responsible for establishing standards and monitoring the 

performance of counsel “in order to insure competent 

representation of defendants.” Mass. Gen. Laws ch. 211D, §§ 1,

10 (1990). In its Performance Standards Governing 

Representation of Indigents in Criminal Cases, the Committee 

states, “Counsel should go to the scene of the alleged crime in 

a timely manner--prior to the pre‐trial hearing when necessary--

or prior to an evidentiary hearing or trial. Counsel should 

consider obtaining fair and accurate photographs, fair and 

accurate maps of the area and, where relevant, measurements.” 

Comm. for Pub. Counsel Servs., Criminal: Performance Standards 

and Complaint Procedures, in Assigned Counsel Manual Policies 

and Procedures Ch. 4, Part I (IV)(A) (2011).

Similarly, Louisiana Revised Statutes section 15:146

(2014) establishes the Louisiana Public Defender Board that is 

charged with, inter alia, “[c]reating mandatory qualification

standards for public defenders that ensure that the public 

defender services are provided by competent counsel.” La. Rev. 

Stat. § 15:148(B)(2) (2008). The Public Defender Board’s Trial 

Court Performance Standards provides, “Where appropriate, 

counsel should attempt to view the scene of the alleged offense 

as soon as possible after counsel is appointed. This should be 
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done under circumstances as similar as possible to those 

existing at the time of the alleged incident.” La. Pub. Def. 

Bd., Louisiana Public Defender Board Trial Court Performance 

Standards § 717(B)(6), at 14 (2010). Further, in its

performance standards for representation in capital cases, the 

Public Defender Board states that “[c]ounsel should conduct a 

high quality, independent and exhaustive investigation of all 

available sources of information utilizing all available tools 

including live witness interviews, compulsory process, public 

records law, discovery, [and] scene visits[.]” La. Pub. Def. 

Bd., Performance Standards for Criminal Defense Representation 

in Indigent Capital Cases § 1907(B)(1) (2015). The Board

elaborates that counsel should take full advantage of the direct 

observations of relevant locations, noting that

[c]ounsel should attempt to view the scenes of the alleged 

offense and other relevant events as soon as possible after 

counsel is assigned [and] . . . should extensively, 

precisely, and accurately document the condition of any 

relevant scene using the most appropriate and effective 

means, including audio-visual recordings, diagrams, charts, 

measurements, and descriptive memoranda. The condition of 

the scenes should always be documented in a manner that 

will permit counsel to identify and prove the condition of 

the scenes without personally becoming a witness.

Id. § 1907(B)(8)(f)(i). 

The State Bar of Texas in its Performance Guidelines 

for Non-Capital Criminal Defense Representation likewise states

that “[w]hen appropriate, counsel or an investigator should 

attempt to view the scene of the alleged offense as soon as 
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possible after counsel is appointed or retained. . . . Counsel 

should consider the taking of photographs and the creation of 

diagrams or charts of the actual scene of the offense.” State 

Bar of Tex., Performance Guidelines for Non-Capital Criminal 

Defense Representation § 4.1(B)(8) (2011). Many other states 

have developed similar performance standards recommending that 

defense counsel visit the crime scene as appropriate. See, e.g, 

N.D. Comm’n on Legal Counsel for Indigents, Minimum Attorney 

Performance Standards: Criminal Matters § 7.1 (6) (“Where 

appropriate, counsel should attempt to view the scene of the 

alleged offense as soon as possible after counsel is appointed. 

. . . Counsel should consider the taking of photographs and 

creation of diagrams or charts of the actual scene of the 

offense.”); accord Va. Indigent Def. Comm’n, Commonwealth of 

Virginia Standards of Practice for Indigent Defense § 4.1(b)(5) 

(2015); N.M. Pub. Def. Comm’n & the Law Offices of the Pub.

Def., Performance Standards for Criminal Defense Representation

§ 4.1(b)(7) (2014); S.C. Comm’n on Indigent Def., Performance 

Standards for Public Defenders and Assigned Counsel (NonCapital) § 4.1(b)(7) (2013); Ga. Pub. Def. Standards Council, 

State of Georgia Performance Standards for Criminal Defense 

Representation in Indigent Criminal Cases § 4.A(B)(f) (2004). 

Thus, defense counsel’s investigation of the crime scene has 

been widely recognized as an essential task in providing legal 
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assistance within the range of competence demanded of attorneys 

in criminal cases.

Some courts have concluded that defense counsel’s 

access to the crime scene implicates a defendant’s right to 

effective assistance of counsel. In affirming a family court’s 

discovery and inspection order, the New Jersey Supreme Court in 

State in Interest of A.B., 99 A.3d 782, 789, 794 (N.J. 2014), 

held that a defendant’s constitutional right to a fair trial 

allowed the defendant’s counsel to access the residence where a 

sexual assault had allegedly occurred. The court determined 

that “[t]he right to the effective assistance of counsel in a 

criminal proceeding includes the right to conduct a reasonable 

investigation to prepare a defense,” id. at 785, and that a 

“defense attorney’s visit to the scene of the crime . . . might 

constitute a professional obligation.” Id. at 793. The court 

further noted that “[v]isiting the scene of the crime can be 

critical in preparing a defense” and “the failure of a defense 

attorney ‘to conduct an investigation of the crime scene’ can 

constitute ineffective assistance of counsel.” Id. at 790

(quoting Thomas v. Kuhlman, 255 F. Supp. 2d 99, 112 (E.D.N.Y. 

2003)); see also Williams v. Washington, 59 F.3d 673, 680-82 

(7th Cir. 1995) (determining that failure to investigate and 

visit the scene rendered defense counsel’s performance deficient 

and violated the defendant’s Sixth Amendment rights); Thomas, 
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255 F. Supp. 2d at 109 (“[I]f properly armed with the easily 

discoverable facts concerning the layout of the victim’s 

apartment building, counsel would likely have chosen to 

highlight the implausibility of the prosecution’s theory of the 

crime.”).

These standards show that visiting the crime scene is 

integral to providing an effective defense. Indeed, in this 

case, defense counsel’s reasons for requesting access to 

Maunaihi Terrace primarily concerned his ability to effectively 

represent Tetu.16 Tetu’s counsel requested access to the crime 

scene so that he could cogently present the case to a jury,

cross-examine witnesses, and understand Tetu’s account of the 

events. A review of the transcript at trial indicates a 

disparity between the prosecution’s direct examination and the 

defense counsel’s cross-examination of the condominium manager. 

During direct examination, the prosecutor--who had access to the 

premises--asked the manager to describe what he saw while the 

surveillance footage played before the jury. As the manager 

described the layout of the basement, the prosecutor added to 

the manager’s narrative, asking, “And is there a hallway that

 16 Although not mentioned in the motion to compel discovery, Tetu’s 

counsel at oral argument to this court stated that he wanted access to the 

crime scene “on a personal level” because he “tend[s] to be directionally 

challenged” and struggles with telling where things are by looking at a map 

or diagram. See Oral Argument at 10:25-50, State v. Tetu, SCWC-13-0003062

(argued July 2, 2015), 

http://oaoa.hawaii.gov/jud/oa/15/SCOA_070215_13_3062.mp3.
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connects all sides of the basement to the elevators?” The 

manager responded, “Sorry, yes. There’s another hallway just 

like this right on that side where he just emerged from.”

In contrast, Tetu’s counsel spent the first part of 

his cross-examination asking the manager to help him understand 

the orientation of the utility closets. At one point, Tetu’s 

counsel confused the positioning of the storage closets and 

apologized to the manager, “It’s the same closet? . . . Oh, 

okay. Sorry. Oh, my mistake. Okay.” Thus, the trial record 

reflects that the specific reasons Tetu’s counsel asserted for 

requesting access to the condominium were substantiated. 

The circuit court’s reliance on HRE Rule 401 to deny 

Tetu’s motion to compel discovery was misplaced. This rule 

defines what evidence is relevant and consequently admissible. 

See HRE Rule 401. It does not contemplate a limit on the 

defense’s ability to discover potentially admissible evidence. 

See id. As stated by the ABA Standards, defense counsel’s 

investigative efforts “should explore appropriate avenues that 

reasonably might lead to information relevant to the merits of 

the matter.” ABA Standards § 4-4.1(c). HRE Rule 401 is also 

inapplicable because several of the reasons Tetu’s counsel 

offered for obtaining access to the property did not indicate a 

desire to introduce evidence but were related to obtaining an 
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understanding of the building’s layout so that counsel could

effectively present the case to the jury.17

In sum, under article I, section 14 of the Hawaiʻi

Constitution, a defendant is entitled to the assistance of an 

attorney whose representation falls within the range of 

performance demanded of attorneys in criminal cases. There is a 

broad consensus across the United States that competent defense 

counsel should access the crime scene unless, after a careful

investigation of the underlying facts of a case, counsel makes a 

reasonable determination that access is not necessary to provide 

effective assistance of counsel.18 Thus, a defendant’s ability

to access the crime scene inheres within the right to effective 

assistance of counsel guaranteed by article I, section 14 of the 

Hawaiʻi Constitution.19 

 17 The State’s argument concerning HRE Rule 403, which allows a 

court to exclude evidence that will cause “undue delay, waste of time or 

needless presentation of cumulative evidence,” is also not germane. Tetu’s 

counsel moved to compel discovery, not to admit evidence. Arguing that the 

evidence will cause “undue delay, waste of time, or needless presentation of 

cumulative evidence” prior to the defense even requesting that the evidence 

be admitted is inapposite.

18 The decision not to investigate a crime scene can constitute an 

error or omission that reflects counsel’s lack of skill, judgment, or 

diligence. See Aplaca, 74 Haw. at 71, 837 P.2d at 1307 (electing not to 

investigate without adequate inquiry of the facts is not considered a 

tactical decision); see also Antone, 62 Haw. at 348-49, 615 P.2d at 104-05 

(stating the two-fold standard to establish ineffective assistance of 

counsel). 

19 Allowing defense counsel access to the crime scene may impinge on 

the privacy rights of property owners. Accordingly, as discussed infra, a 

court may place appropriate time, place, and manner restrictions on the 

defendant’s access.
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b. Due Process Right

Article I, section 5 of the Hawaiʻi Constitution 

provides, “No person shall be deprived of life, liberty or 

property without due process of law[.]”20 Haw. Const. 

art. I, § 5. A primary reason that a defendant is guaranteed 

effective assistance of counsel is to ensure that the defendant 

is not denied due process. State v. Reed, 135 Hawaiʻi 381, 387, 

351 P.3d 1147, 1153 (2015) (“The Constitution guarantees a fair 

trial through the Due Process Clauses, but it defines the basic 

elements of a fair trial largely through the several provisions 

of the [s]ixth [a]mendment, including the [c]ounsel [c]lause.”

(alterations in original) (quoting United States v. GonzalezLopez, 548 U.S. 140, 150 (2006))). Thus, while defense 

counsel’s ability to visit the crime scene is a component of a 

defendant’s right to effective assistance of counsel for the 

reasons stated above, due process provides a separate guarantee

to a fair trial pursuant to which such access may be afforded. 

See State v. Kaulia, 128 Hawaiʻi 479, 487, 291 P.3d 377, 385 

 20 Article 1, section 5 of the Hawaiʻi Constitution provides,

No person shall be deprived of life, liberty or 

property without due process of law, nor be denied 

the equal protection of the laws, nor be denied the 

enjoyment of the person’s civil rights or be 

discriminated against in the exercise thereof 

because of race, religion, sex or ancestry.

Haw. Const. art. I, § 5.
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(2013) (“The due process guarantee of the . . . Hawaii

constitution [] serves to protect the right of an accused in a 

criminal case to a fundamentally fair trial.” (alterations in 

original) (quoting State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 

671, 672 (1990))). 

On several occasions, this court has stated that 

“[c]entral to the protections of due process is the right to be 

accorded a meaningful opportunity to present a complete 

defense.” Id. (quoting Matafeo, 71 Haw. at 185, 787 P.2d at 

672). These decisions are consistent with the well-established 

principle that “all defendants must be provided with the ‘basic 

tool[s] of an adequate defense.’” State v. Scott, 131 Hawaiʻi

333, 352, 319 P.3d 252, 271 (2013) (quoting Britt v. North 

Carolina, 404 U.S. 226, 227 (1971)); see also Washington v. 

Texas, 388 U.S. 14, 19 (1967) (determining that a “fundamental 

element of due process” is the right to “present the defendant’s 

version of the facts”).

Discovery is at the very 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.

State v. Valeros, 126 Hawaiʻi 370, 379, 271 P.3d 665, 674 (2012)

(quoting State v. Dowsett, 10 Haw. App. 491, 498, 878 P.2d 739, 

743 (1994), overruled on other grounds by State v. Rogan, 91 

Hawaiʻi 405, 423 n.10, 984 P.2d 1231, 1249 n.10 (1999)); see also
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Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (“[A] criminal trial is 

fundamentally unfair if the State proceeds against an indigent

defendant without making certain that [the defendant] has access 

to the raw materials integral to the building of an effective 

defense.”). 

Due process contemplates mutual obligations of the

government and the defense as it relates to the discovery 

process. See State v. Davis, 63 Haw. 191, 195-96, 624 P.2d 376, 

379-80 (1981) (stating that discovery under HRPP Rule 12.1 is a 

“two-way street”). “Although the Due Process Clause has little 

to say regarding the amount of discovery which the parties must 

be afforded, it does speak to the balance of forces between the 

accused and his accuser.” Wardius v. Oregon, 412 U.S. 470, 474 

(1973) (citation omitted).

Other jurisdictions have concluded that a defendant 

has a right under the due process clause to investigate a crime 

scene. In Henshaw v. Commonwealth, 451 S.E.2d 415, 416 (Va. Ct. 

App. 1994), the appellant was denied access to the site of the 

crime scene located at a private residence, and he was

subsequently convicted of voluntary manslaughter. The court 

concluded that the “due process rights of . . . the Virginia 

Constitution give a criminal defendant a right to view, 
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photograph, and take measurements of the crime scene.”21 Id. at 

419. A similar conclusion was reached in State v. Gonsalves,

661 So. 2d 1281 (Fla. Dist. Ct. App. 1995), in which the court 

determined that a defendant charged with attempted burglary had 

a due process right to inspect the crime scene. Id. at 1282. 

Likewise, in State v. Brown, 293 S.E.2d 569 (N.C. 1982), the

Supreme Court of North Carolina held that it was “a denial of 

fundamental fairness and due process for [a] defendant to be 

denied, under police prosecutorial supervision, a limited 

inspection of the premises of the crime scene” in a capital case 

in which the defendant’s counsel was denied access to a murder 

scene. Id. at 577-78. 

Review of the case law thus demonstrates that due 

process includes the right of the defendant to access the crime 

scene to obtain the raw materials integral to building an 

effective defense. Here, even though surveillance footage was 

available, it did not show the inside of the closets or how Tetu 

entered the building. Tetu’s counsel requested access to the 

property so that he could photograph areas not depicted in the 

discovery already produced. A defendant’s right to due process 

 21 The Henshaw court held that the due process rights of article I, 

section 8 of the Virginia Constitution give a criminal defendant a right to 

view, photograph, and take measurements of the crime scene, provided that the 

defendant makes a showing that a substantial basis exists for claiming that 

the proposed inspection and observation will enable the defendant to obtain 

evidence relevant and material to his defense or to be able to meaningfully 

defend himself. Henshaw, 451 S.E.2d at 419.
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is infringed when defense counsel is forced to rely on materials 

provided by the government based on what the police or the 

prosecution deems relevant at a crime scene--that is, what is

photographed, what is included in diagrams, or what is depicted 

in a video and then disclosed in discovery. In an adversarial 

system, the right to a fair trial may be compromised when the 

defendant is required to build a defense based upon the State’s

investigation. 

The performance standards and guidelines previously 

discussed emphasize that counsel should investigate or have 

adequately considered inspection of the crime scene. A visit to 

the crime scene may help counsel document and photograph 

relevant characteristics of the scene, explore avenues of 

possible defenses, determine if proceeding to trial would be 

appropriate, enable a cohesive presentation to the factfinder, 

and understand the defendant’s account of the events. The 

prosecution will generally have access to the crime scene via 

police investigation or independent prosecutorial inquiry. A

defendant is therefore likely to be at a disadvantage to a 

prosecution that has more information about, and more 

familiarity with, the crime scene. See Dowsett, 10 Haw. App. at 

498, 878 P.2d at 743 (“The ends of justice will best be served 

by a system of liberal discovery which gives both parties the 
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maximum possible amount of information with which to prepare 

their cases . . . .” (quoting Wardius, 412 U.S. at 473)). 

Here, Tetu’s due process right under the Hawaiʻi

Constitution to access the materials vital to building an 

effective defense and to have an opportunity similar to the 

State to obtain information was impaired: first, by the denial 

of defense counsel’s initial request for access to the crime 

scene, and second, by the prosecutor’s visit to the scene 

despite opposing Tetu’s motion on the basis that the defense 

would not gain anything from an investigation of the scene. As 

this court has previously stated, “the growth of . . . discovery 

devices is a salutary development which, by increasing the 

evidence available to both parties, enhances the fairness of the 

adversary system.” State v. Pond, 118 Hawaiʻi 452, 464, 193 P.3d 

368, 380 (2008) (quoting Wardius, 412 U.S. at 474). In this 

case, however, the circuit court’s decision to not utilize one 

such discovery device to allow Tetu access to the crime scene 

diminished the fairness of the adversary system. See id.

In short, under article I, section 5 of the Hawaiʻi

Constitution, a defendant has a due process right to a fair 

trial. 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 
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process. Thus, the due process clause of the Hawaiʻi

Constitution provides a defendant with the right to access the 

crime scene in order to secure the promises that a fair trial 

affords.

3. Privacy Concerns

In Hawaiʻi, the right to privacy is also a 

constitutionally protected right.22 Recognition of a defendant’s 

constitutional right to access the crime scene may intrude upon 

the privacy interests of those directly affected by a crime, 

property owners, or other occupants of the premises, and an 

inspection of the scene may be stressful to an alleged victim.

The drafters of article I, section 6 of the Hawaiʻi 

Constitution envisioned that the interests of the criminal 

justice system would, at times, be significant enough to justify 

intrusion on one’s right to privacy. See Stand. Comm. Rep. No. 

69 in 1 Proceedings of the Constitutional Convention of Hawaiʻi 

of 1978, at 675 (1980) (“[A]t times the interests of national 

security, law enforcement, the interest of the State to protect 

the lives of citizens or other similar interests will be strong 

enough to override the right to privacy.”). The New Jersey 

Supreme Court similarly observed in State in Interest of A.B.

 22 Article I, section 6 of the Hawaiʻi Constitution provides, “The 

right of the people to privacy is recognized and shall not be infringed 

without the showing of a compelling state interest.” Haw. Const. art. I, § 

6.
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that despite the fact that “[p]articipation in the criminal 

justice process will undoubtedly be a source of inconvenience 

and anxiety, and will result in some incursion into privacy 

rights of witnesses[,]” these “adverse consequences are the 

inevitable price that must be paid to ensure the accused 

receives a fair trial.” 99 A.3d 782, 793 (N.J. 2014). Given 

these competing interests, a defendant’s constitutional right to 

access and investigate a crime scene is not unlimited and does 

not provide unfettered access to private property. Rather, the 

anxiety and inconvenience that governmental intrusion may cause 

can be largely reduced through the court’s application of time, 

place, and manner restrictions without jeopardizing the 

defendant’s right to effective assistance of counsel and right 

to a fair trial.

Other jurisdictions that have recognized a defendant’s 

right to investigate the crime scene have employed such 

restrictions to minimize governmental intrusion on a property 

owner’s privacy rights. The Court of Appeals of Minnesota took 

this approach in State v. Lee, 461 N.W.2d 245 (Minn. Ct. App. 

1990), holding that the trial court abused its discretion in 

denying the defendant’s motion to compel access to a private 

residence, which was the scene of an alleged murder. Id. at 

247. The prosecution opposed the defense’s motion in Lee

because it was no longer in “possession or control” of the crime 
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scene and had already provided the defense with photographs, 

diagrams, and videotapes of the residence. Id. at 246. The 

appellate court held that “[a] brief inspection of the residence 

by defense investigators, regulated as to time, place and 

manner, could be less intrusive upon the victims’ family than a 

defense effort to obtain equivalent information by compulsory 

process.” Id. at 247 (citation omitted).23 In Commonwealth v. 

Matis, 915 N.E.2d 212, 215 (Mass. 2006), a case involving the

sexual assault of a minor, the court remanded the case to the 

trial court and specified that the trial court needed to 

consider the “privacy interests and logistical concerns of the 

homeowner” and could craft the terms of the order allowing 

access to the crime scene through time, place, and manner 

restrictions. The appellate court’s instructions on remand

provided examples of restrictions that the trial court could

apply to protect privacy rights. Id. The Matis court

instructed as follows: 

The order [allowing access to the crime scene] should be 

specific as to scope, and may include, among other things, 

conditions as to who may have access on behalf of the 

defense, when that access may occur and for how long, and 

whether additional persons should be permitted or required 

to attend to ensure the peaceable nature of the inspection, 

the integrity of the evidence, and the privacy of matters

beyond the scope of the order.

 23 Restriction to a single visit will generally be sufficient to 

address the defense’s request to investigate the premises. See State in 

Interest of A.B., 99 A.3d at 794 (requiring the “giving [of] articulable 

reasons why the initial inspection was not adequate for investigative 

purposes”).
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Id.24 

In this case, the circuit court could have placed 

restrictions on defense counsel’s access to investigate and 

photograph the basement area in and around the utility closets.25 

Such appropriate time, place, and manner restrictions would have 

minimized any infringement on the condominium owners’ privacy 

rights without impairing Tetu’s constitutional rights to 

effective assistance of counsel and a fair trial.26

4. Relevancy and Materiality Requirement

The concurrence acknowledges that a defendant in 

Hawaiʻi has a constitutional due process right to access the 

crime scene, but it would make the right conditional. In order 

to exercise the right under the concurrence’s proposed test, the 

defendant would be required to “make a threshold showing” that 

 24 The Matis court held that the defendant had a constitutional 

right to investigate the crime scene under the Sixth Amendment to the United 

States Constitution but required a showing that the crime scene was 

“evidentiary and relevant” to authorize the use of the court’s subpoena 

power. Matis, 915 N.E.2d at 213-14.

25 Before moving to compel access to the crime scene, defense 

counsel may seek access without the aid of the court, i.e., requesting 

permission through the prosecution or directly from the property owner. 

However, if access is denied, HRS § 603-21.9 (1993) provides the circuit 

courts with the authority “[t]o make and award . . . orders . . . for the 

promotion of justice in matters pending before them,” and thus a court may 

order a complainant or third party to allow access to the crime scene with 

appropriate restrictions. 

26 At the hearing on Tetu’s motion to compel access to the 

condominium, no one from Maunaihi Terrace was present to represent the 

condominium’s privacy interests. It is assumed that in establishing time, 

place, and manner restrictions, the property owner or persons with privacy 

interests will be notified of the request for access. The court may then 

consider such privacy interests in establishing appropriate restrictions. 
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“inspection of the [crime] scene will lead to relevant evidence 

on a material issue.” Concurrence at 2, 8.

In jurisdictions that have required a defendant to 

satisfy a relevancy and materiality test (or some alternative 

standard) to justify access to the crime scene, a primary 

concern has been the right to privacy of complainants or third

parties.27 This concern can be readily addressed by application 

of time, place, and manner restrictions imposed by a court to 

protect the privacy interests of property owners or occupants

without the imposition of an evidentiary threshold test.28 There 

 27 See, e.g., Bullen v. Superior Court of Sacramento Cty., 251 Cal. 

Rptr. 32, 35 (Cal. Ct. App. 1988) (“Resolution of this issue implicates 

competing fundamental interests involving petitioner’s right to privacy in 

her own home and defendant’s right to a fair trial and a defense informed by 

all relevant and reasonably accessible information.”); State in Interest of 

A.B., 99 A.3d 782, 789 (N.J. 2014) (“The issue presents a balancing of the 

right of the accused to a fair trial and the right of an alleged victim and 

her family to privacy in their home.”); People v. Nicholas, 599 N.Y.S.2d 779, 

782 (N.Y. App. Div. 1993) (“Unless defense counsel can make a prima facie 

showing how his proposed inspection and observation would be relevant and 

material to his defense, the defendant’s right to prepare his defense cannot 

outweigh the victim’s constitutional right to privacy.”); Henshaw v. 

Commonwealth, 451 S.E.2d 415, 420 (Va. Ct. App. 1994) (“If an accused 

establishes that inspecting, photographing, or measuring the crime scene is 

relevant and material, he is entitled to access, subject to such reasonable 

limitations and restrictions as the trial judge may impose, unless due to 

special circumstances the private citizen’s constitutional right to privacy 

outweighs the accused’s right to view or inspect the premises.”); State v. 

Muscari, 807 A.2d 407, 418 (Vt. 2002) (holding that an occupant’s right to 

privacy must be balanced with a defendant’s need to access the crime scene 

“by requiring a defendant to make some showing that the requested intrusion 

is relevant and material to the defense”).

28 The need for a defense counsel to understand the crime scene’s 

layout and to explore all possible defenses does not vary based on whether 

the crime occurred on public or private property. Consequently, under a 

relevancy and materiality test, the need to persuade a court to allow crime 

scene access unfairly burdens defendants accused of a crime on private rather 

than on public property. All defendants under the Hawaiʻi and United States 

Constitutions are presumed to be innocent, and the ability to prepare a 

(continued. . .)
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may be rare cases where it is demonstrated that such

restrictions are inadequate to protect an individual’s privacy 

rights and that an intrusion upon these privacy rights outweighs 

the defendant’s rights to due process and effective assistance 

of counsel. However, a court’s broad authority to circumscribe 

the scope of access--including, for example, prescribing the 

physical area of the inspection, setting the time frame and 

other conditions of the visit, and specifying the persons to be 

present--will provide the requisite protection of privacy rights

in virtually all cases.

Additionally, requiring a defendant to demonstrate 

that access to the crime scene “will lead” to relevant evidence 

on a material issue undermines the defendant’s constitutional 

rights to effective assistance of counsel and to a fair trial. 

The time necessary for defense counsel to obtain discovery in 

order to establish that accessing the crime scene would lead to 

relevant evidence on a material issue conflicts with the 

previously cited professional standards that defense counsel 

should access the scene without delay to inspect it, take 

 

(. . .continued)

defense should not depend on the location of the offense charged. See In re 

Winship, 397 U.S. 358, 363 (1970) (The reasonable-doubt standard “provides 

concrete substance for the presumption of innocence--that bedrock ‘axiomatic 

and elementary’ principle whose ‘enforcement lies at the foundation of the 

administration of our criminal law’” (quoting Coffin v. United States, 156 

U.S. 432, 453 (1895))). 
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measurements, and record relevant conditions.29 The defendant’s 

inability to make a threshold showing of relevancy and 

materiality to justify inspecting the crime scene at an early 

point in the proceedings30 may be the result of a delay in the 

State’s required disclosure of discovery under HRPP Rule 16 

because of uncompleted investigative reports, pending test 

results, or even administrative backlog.

Further, the reasons put forward by the defense to 

access the crime scene are likely to be challenged by the State 

as to whether they demonstrate that access “will lead to 

relevant evidence on a material issue.” Concurrence at 2 

(emphasis added). That is, counsel for the State, who will

generally have ready access to the crime scene, may contend that 

opposing counsel should not be granted access because of 

 29 Requiring the defense to show that investigation of the crime 

scene will lead to relevant and material evidence may, in certain instances, 

infringe on the attorney-client privilege. The attorney-client privilege 

protects all “‘confidential communication made for the purpose of 

facilitating the rendition of professional legal services’ between 

appropriate parties.” Save Sunset Beach Coalition v. City & Cty. of 

Honolulu, 102 Hawaiʻi 465, 484-85, 78 P.3d 1, 20-21 (2003) (quoting HRE Rule 

503(b)). Satisfying a relevancy and materiality test may inferentially 

reveal the contents of a privileged communication from the defendant.

30 A relevancy and materiality requirement may also create an 

anomalous result based on the timing of a defense counsel’s request to compel 

discovery. If defense counsel moves to compel access when the police or the 

State is in “possession or control” of a crime scene, a defendant would 

appear to have an automatic right under HRPP Rule 16 to investigate the crime 

scene. See State v. Townsend, 7 Haw. App. 560, 563, 784 P.2d 881, 883 

(1989). Requiring a defendant to satisfy a higher burden to exercise his or 

her constitutional right to access the crime scene solely because of the 

timing of the request may “impermissibly relegate[] the defendant’s 

constitutional rights to that of rule status.” State v. Pond, 118 Hawaiʻi 

452, 481, 193 P.3d 368, 397 (2008).
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relevance, passage of time, or cumulativeness of evidence--which

were precisely the grounds of the State’s objections in this 

case. If a trial court is required to determine whether access 

to a crime scene would lead to relevant evidence not previously 

disclosed on a material issue, the court would need to be 

cognizant of the contents of all discovery previously provided 

by the State, any other materials obtained by the defense’s

investigation, and the possible defenses to be asserted at 

trial.31 

Although the inherent difficulty of such a judicial 

calculation is plainly evident, the concurrence suggests that 

its proposed threshold burden is necessary in part to counter

requests for access that have no “legitimate purpose.” 

Concurrence at 5. To the extent that the concurrence portends 

that counsel will submit frivolous or illegitimate requests for

access to the scene with the intent to intimidate, harass, or 

abuse private citizens, such requests for access would require 

defense counsel to knowingly violate multiple provisions of the 

Hawaiʻi Rules of Professional Conduct (HRPC). See HRPC Rule 

 31 Requiring counsel to definitively show that access “will” lead to 

relevant evidence on a material issue would also make no accommodation for 

counsel to inspect the crime scene for general investigatory purposes or 

because counsel believes the inspection itself may provide a basis for a 

defense. In this likely scenario, the very information needed to make a 

showing that access to the crime scene would yield relevant and material 

evidence would remain undiscovered because it would only be accessible by 

inspecting the crime scene in the first place. 
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3.4(f) (2014) (prohibiting a lawyer from “mak[ing] a frivolous 

discovery request”); HRPC Rule 3.1 (2014) (prohibiting a lawyer 

from “bring[ing] or defend[ing] a proceeding, or assert[ing] or 

controvert[ing] an issue therein, unless there is a basis for 

doing so that is not frivolous”). Further, the trial court has

“inherent equity, supervisory, and administrative powers” to 

“curb abuses and promote a fair process.” Richardson v. Sport 

Shinko (Waikiki Corp.), 76 Hawaiʻi 494, 507, 880 P.2d 169, 182 

(1994); Kaina v. Gellman, 119 Hawaiʻi 324, 330, 197 P.3d 776, 782 

(App. 2008) (noting that HRS §§ 603-21.9(1) and (6)32 are the 

“legislative restatement of the inherent powers doctrine”).33 

 32 HRS § 603-21.9 reads in relevant part: 

The several circuit courts shall have power:

(1) To make and issue all orders and writs necessary or 

appropriate in aid of their original or appellate 

jurisdiction; 

. . . .

(6) To make and award such judgments, decrees, orders, and 

mandates, issue such executions and other processes, and do 

such other acts and take such other steps as may be 

necessary to carry into full effect the powers which are or 

shall be given to them by law or for the promotion of 

justice in matters pending before them.

HRS § 603-21.9(1), (6) (1993). 

33 See also State v. Mattson, 122 Hawaiʻi 312, 342 n.6, 226 P.3d 482, 

512 n.6 (2010) (noting that this court could invoke its inherent supervisory 

authority to prohibit a broad category of impermissible prosecutorial 

comments even when not all subsets of such comments were raised on appeal); 

State v. Jess, 117 Hawaiʻi 381, 411, 184 P.3d 133, 163 (2008) (circuit court’s 

inherent authority includes the power to reform sentencing statute to comport 

with Hawaiʻi Constitution and re-empanel jury to make factual findings for 

sentencing); State v. Pattioay, 78 Hawaiʻi 445, 468 n.28, 896 P.2d 911, 924 

(continued. . .)
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Therefore, trial courts are indeed empowered with the tools to 

curb the concurrence’s hypothetical requests of counsel for 

access that have no legitimate purpose, even assuming the 

unlikely fact that such requests would be submitted in direct 

violation of the Hawaiʻi Rules of Professional Conduct.34 

Concurrence at 5.

The concurrence also maintains that, under the 

proposed relevancy and materiality test, “in the vast majority 

of cases, a defendant should easily be able to” exercise his or 

her constitutional right to access the crime scene. Concurrence 

at 5. However, as described above, there are numerous reasons 

why this prediction is dubious. In fact, it is likely that 

defense counsel would frequently be denied the opportunity to 

investigate the scene of the crime and thus be prevented from 

fulfilling professional standards. This case is a prime 

example. Defense counsel provided the following reasons for 

seeking access to the condominium premises: (1) to make best use 

of cross-examination and impeachment of witnesses at trial; (2) 

 

(. . .continued)

n.28 (1995) (circuit court’s inherent authority includes power to exclude 

evidence obtained in violation of federal statute relating to military and 

civilian law enforcement because such action is “reasonably necessary to 

vindicate the court’s authority”). 

34 The regulations imposed by the HRPC, the court’s inherent 

authority to deny illegitimate requests for access, and the limitations 

imposed by use of time, place, and manner restrictions evince that, contrary 

to the concurrence’s characterization, a defendant’s access to the crime 

scene is not “absolute.” Concurrence at 8. 
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to understand the account of his client; (3) to take photographs

of areas not shown in the discovery that “may be significant to 

the defense”; and (4) to coherently present the case to a jury. 

The circuit court determined that Tetu’s counsel had presented 

“no real plausible justification” for access to the crime scene

and that the request for access was speculative “with a hope to 

turn up something.” Similarly, the ICA concluded that Tetu’s 

reasons did not satisfy its requirement that counsel “make a 

prima facie showing of how the proposed inspection would be 

relevant and material to [his] defense.” These court rulings 

indicate that Tetu would not have satisfied the concurrence’s 

threshold test that “inspection of the crime scene would lead to 

relevant evidence on a material issue,”35 despite the fact that 

the reasons provided by defense counsel coincide with numerous 

performance standards established by the American Bar 

Association, state jurisdictions, and other legal professional 

standards organizations.36

 35 In concluding otherwise, the concurrence states that inspection 

of the crime scene would have revealed that the fire-exit door, which was 

“exit only,” had no signs of forced entry and would have corroborated Tetu’s 

account that he could have only entered the premises with his former wife’s 

aid. Concurrence at 6-7. However, this argument was not made before the 

circuit court as the ICA noted in its memorandum opinion. The other reasons 

relied upon by the concurrence are generally applicable in all criminal 

cases. 

36 See, e.g., Va. Indigent Def. Comm’n, Commonwealth of Virginia 

Standards of Practice for Indigent Defense § 7.1 (b)(5) (2015) (trial 

preparation should include consideration of “[o]btaining photographs and 

preparing charts, maps, diagrams, or other visual aids of all scenes, 

persons, objects, or information which may assist the fact finder in 

(continued. . .)
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While the reasons that Tetu’s counsel provided are 

inherent to providing effective assistance of counsel and apply 

in nearly all criminal cases, they did not demonstrate that

access to the scene would satisfy the concurrence’s test that it 

“will lead to relevant evidence on a material issue.” This case 

thus manifests the fundamental point that the duties required of 

defense counsel by virtue of the obligation to render effective 

assistance are not limited to seeking relevant evidence on a 

material issue, and, in fact, encompass a range of litigation 

efforts that are fundamental to an effective defense--yet do not 

solely involve pursuing such evidence.37 Rather, as established 

by the professional standards for defense counsel, a meaningful 

 

(. . .continued)

understanding the defense . . . ”); id. at § 8.2(g) (“Counsel should attempt 

to view and photograph the scene of the alleged offense.”); Nat’l Legal Aid & 

Def. Ass’n, NLADA’s Performance Guidelines for Criminal Defense 

Representations § 4.1(b)(6), at 10 (1995) (“Counsel should consider seeking 

access to the scene under circumstances as similar as possible to those 

existing at the time of the alleged incident.”); Am. Bar Ass’n, ABA Standards 

for Criminal Justice: Prosecution Function and Defense Function § 4-4.1(b) 

Commentary, at 183 (3d ed. 1993) (“Without adequate investigation[,] the 

lawyer is not in a position to make the best use of such mechanisms as crossexamination or impeachment of adverse witnesses at trial,” and where there 

are eyewitnesses, “[t]he lawyer needs to know conditions at the scene that 

may have affected their opportunity as well as their capacity for 

observation.”). 

37 For example, the record in this case demonstrates that defense 

counsel’s concerns regarding cross-examination of witnesses at trial was 

well-founded. A review of the trial transcript indicates that defense 

counsel, unlike the prosecution, struggled to cross-examine the condominium 

manager regarding the layout of the basement. As any seasoned litigator 

knows, there is no substitute to viewing the crime scene in person. Had 

defense counsel been permitted to inspect and familiarize himself with the 

condominium basement, counsel likely would have been able to make “be[tter] 

use” of cross-examination. Am. Bar Ass’n, supra note 36, at 183. 
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opportunity to present a complete defense secures allowance for 

counsel to timely inspect and investigate the crime scene in 

order to provide effective assistance. See State v. Kaulia, 128 

Hawaiʻi 479, 487, 291 P.3d 377, 385 (2013) (“Central to the 

protections of due process is the right to be accorded a 

meaningful opportunity to present a complete defense.” (quoting 

State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990)). 

Requiring counsel to satisfy a court that granting access to the 

crime scene will lead to relevant evidence on a material issue

forces a defendant to justify the exercise of the rights given 

by our constitution to present an effective defense and to 

receive a fair trial. 

5. Harmless Error

The circuit court erred in not allowing Tetu’s counsel 

to inspect and photograph the crime scene, a private condominium 

building, subject to appropriate restrictions that would have 

properly considered the condominium owners’ privacy rights. 

However, a violation of a constitutional right is subject to the 

harmless-beyond-a-reasonable-doubt standard. See State v. 

Peseti, 101 Hawaiʻi 172, 178, 65 P.3d 119, 125 (2003) (noting 

that a violation of the constitutional right to confront 

witnesses is subject to the harmless beyond a reasonable doubt

standard). This standard requires a court to “examine the 

record and determine whether there is a reasonable possibility 
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that the error complained of might have contributed to the 

conviction.” Id. (quoting State v. Balisbisana, 83 Hawaiʻi 109, 

113-14, 924 P.2d 1215, 1219-20 (1996)); see also State v. 

Aplaca, 96 Hawaiʻi 17, 25, 25 P.3d 792, 800 (2001) (“This court 

applies the harmless error doctrine to errors that . . . 

implicate an accused’s constitutional rights.”). In assessing 

whether an error is harmless, “[a] crucial if not determinative 

consideration . . . is the strength of the prosecution’s case on 

the defendant’s guilt.” State v. Fukusaku, 85 Hawaiʻi 462, 482-

83, 946 P.2d 32, 52-53 (1997) (quoting State v. Pokini, 55 Haw. 

640, 645, 526 P.2d 94, 101 (1974)). 

Here, the evidence presented against Tetu at trial was 

compelling. The jury observed surveillance footage that showed 

Tetu breaking into two storage closets with a tool and using his 

jacket to wipe the door knobs. Tetu testified that he used a 

piece of wire to open the locked closets. The jury also 

observed in the footage Tetu leaving the closets carrying a 

garbage bag of items with a flashlight in his mouth. The 

condominium manager testified that he had checked the utility 

closets a few days before the incident and that on the day after 

the incident, an electric grinder and several emergency lights 

and batteries were missing. The manager further testified that 

the closets were always locked and only individuals with keys 

had access to the closets. Finally, Tetu’s testimony that the 
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bag contained his former wife’s clothing, instead of stolen 

property, was wholly contradicted by the testimony of his former 

wife.

In light of the evidence adduced at trial, the trial 

court’s error in denying access to the crime scene in this case 

was harmless beyond a reasonable doubt.

B. Sufficiency of the Evidence

This court will “not overturn a conviction by a jury 

if ‘viewing the evidence in the light most favorable to the 

[prosecution], there is substantial evidence to support the 

conclusion of the trier of fact.’” State v. Matavale, 115 

Hawaiʻi 149, 158, 166 P.3d 322, 331 (2007) (alteration in 

original) (quoting State v. Moniz, 92 Hawaiʻi 472, 476, 992 P.2d 

741, 744 (App. 1999)). Substantial evidence is “credible 

evidence which is of sufficient quality and probative value to 

enable [a person] of reasonable caution to support a 

conclusion.” Id. at 158, 166 P.3d at 331 (alteration in 

original) (quoting State v. Batson, 73 Haw. 236, 248-49, 831 

P.2d 924, 931 (1992)). Further, when considering the legal 

sufficiency of evidence to support a conviction, such “evidence 

adduced in the trial court must be considered in the strongest 

light for the prosecution.” Id. at 157, 166 P.3d at 330. It is 

not the role of the appellate court to weigh credibility or 
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resolve conflicting evidence. State v. Wallace, 80 Hawaiʻi 382, 

418, 910 P.2d 695, 731 (1996).

A person commits burglary in the second degree if the 

person “intentionally enters or remains unlawfully in a building 

with intent to commit therein a crime against a person or 

against property rights.” HRS § 708-811(1). Because Tetu 

admitted that he was the person depicted in the surveillance 

footage, the question before the jury concerned Tetu’s intent 

when entering or while remaining at Maunaihi Terrace. Although 

Tetu argues that he lacked the intent to commit burglary, in 

viewing the evidence in the most favorable light to the State, 

the evidence demonstrating that the circuit court’s error was 

harmless beyond a reasonable doubt also establishes substantial 

evidence to support Tetu’s conviction.

IV. CONCLUSION

A defendant’s right to due process under article I, 

section 5 and the right to effective assistance of counsel under 

article I, section 14 of the Hawaiʻi Constitution independently 

provide a defendant with the right to access a crime scene. 

When the crime scene is located on private property, the court 

should impose time, place, and manner restrictions to protect 

the privacy interests of those who may be affected by the 

intrusion. The court’s authority to employ such restrictions to 

address the specific circumstances in each case reflects a 
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careful balance between personal privacy, due process, and the 

effective assistance of counsel and assures protection of these

constitutional rights. 

In this case, although Tetu was wrongly denied access

to the crime scene, the error was harmless beyond a reasonable 

doubt. Therefore, the judgment on appeal of the ICA is affirmed 

for the reasons stated herein.

Stuart N. Fujioka

for petitioner

Donn Fudo

for respondent

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack 

/s/ Michael D. Wilson