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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

TYLER K. WAKAMOTO, Petitioner/Defendant-Appellant.

________________________________________________________________

SCWC-16-0000873

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000873; CASE NO. 1DTA-15-05435)

DECEMBER 13, 2018

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

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This appeal arises from the Defendant Tyler K. Wakamoto’s 

conviction for the offense of “Operating a Vehicle under the 

Influence of an Intoxicant” (“OVUII”) in violation of Hawaiʻi 

Electronically Filed

Supreme Court

SCWC-16-0000873

13-DEC-2018

09:47 AM
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Revised Statutes (“HRS”) § 291E-61(a)(1).1 The issue on 

certiorari concerns foundational requirements for the admission 

of testimony under Hawaiʻi Rules of Evidence (“HRE”) Rule 612, 

when a witness testifies after reviewing a “Writing used to 

refresh memory.”

After Honolulu Police Department (“HPD”) Officer Manueli 

Kotobalavu (“Officer Kotobalavu” or “the Officer”) reviewed his 

report for the second time while testifying over defense 

objection, the District Court of the First Circuit (“district 

court”)2 allowed the Officer to testify regarding Wakamoto’s 

field sobriety test without a foundation having been laid that 

his memory had been refreshed by reviewing the report. In its 

October 20, 2017 Summary Disposition Order (“SDO”), the 

Intermediate Court of Appeals (“ICA”) affirmed Wakamoto’s 

conviction, stating that no legal authority requires the laying 

 

1 HRS § 291E-61(A)(1) (Supp. 2014) provides:

§291E-61 Operating a vehicle under the influence of an 

intoxicant. (a) A person commits the offense of operating 

a vehicle under the influence of an intoxicant if the 

person operates or assumes actual physical control of a 

vehicle:

 (1) While under the influence of alcohol in an amount 

sufficient to impair the person's normal mental faculties 

or ability to care for the person and guard against 

casualty;

. . . .

2 The Honorable Dyan K. Mitsuyama presided.
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of such a foundation. See State v. Wakamoto, No. CAAP-16-

0000873, at 4 (App. Oct. 20, 2017) (SDO). 

In his certiorari application (“Application”), Wakamoto 

reasserts a question he had posed to the ICA:

Whether the ICA gravely erred in holding that the district 

court did not err in denying Wakamoto’s objection to an 

officer’s testimony in an OVUII case as refreshed memory 

when the officer had already reviewed his report once to 

answer the prosecutor’s questions about the standardized 

field sobriety test? 

Legal authority requires that before testimony is admitted 

pursuant to HRE Rule 612 after a witness reviews a writing while 

testifying for the purpose of refreshing memory, an evidentiary

foundation must be laid establishing that the witness’s memory 

has actually been refreshed.

3 Therefore, the ICA erred by 

indicating that no legal authority exists requiring that such a 

foundation be laid, and the district court erred by admitting 

Officer Kotobalavu’s testimony regarding Wakamoto’s field 

sobriety test over defense objection without requiring the 

proper evidentiary foundation.

Despite evidentiary error, an appellate court may affirm a 

judgment of a lower court on any ground in the record that 

supports affirmance. See State v. Fukagawa, 100 Hawaiʻi 498, 

506, 60 P.3d 899, 907 (2002) (citations omitted). After the 

 

3 Before the witness reviews the writing, a foundation should be laid 

that the witness does not recall a fact or event and that the writing will 

help the witness refresh the witness’s memory. See Edward J. Imwinkelried, 

Evidentiary Foundations 466 (9th ed. 2015). 
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defense objected to Officer Kotobalavu again reviewing his 

report and questioned whether he had an independent 

recollection, the deputy prosecuting attorney raised the 

possibility that the officer’s testimony would be admissible 

under HRE Rule 802.1(4) governing “Past recollection recorded”4

if it was not otherwise admissible under HRE Rule 612. The 

State of Hawaiʻi (“the State”), however, did not alternatively 

argue HRE Rule 802.1(4) to the ICA or to this court, and it is 

unclear whether the testimony at issue would have been 

admissible on this basis. In addition, the erroneous admission 

of evidence is not harmless beyond a reasonable doubt if there 

is a reasonable possibility that the error might have 

contributed to the conviction. See State v. Subia, 139 Hawaiʻi 

62, 69, 383 P.3d 1200, 1207 (2016). In this case, the district 

court specifically stated it relied in part on Officer 

 

4 HRE Rule 802.1(4) provides:

Rule 802.1 Hearsay exception; prior statements by 

witnesses. The following statements previously made by 

witnesses who testify at the trial or hearing are not 

excluded by the hearsay rule:

. . .

(4) Past recollection recorded. A memorandum or record 

concerning a matter about which the witness once had 

knowledge but now has insufficient recollection to enable 

the witness to testify fully and accurately, shown to have 

been made or adopted by the witness when the matter was 

fresh in the witness’[s] memory and to reflect that 

knowledge correctly. If admitted, the memorandum or record 

may be read into evidence but may not itself be received as 

an exhibit unless offered by an adverse party.
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Kotobalavu’s improperly admitted testimony as a basis for 

convicting Wakamoto — thus, the improperly admitted testimony 

contributed to the conviction. Therefore, the evidentiary error 

cannot be deemed harmless beyond a reasonable doubt. 

Accordingly, we vacate the ICA’s November 22, 2017 Judgment 

on Appeal entered pursuant to its SDO, as well as the district 

court’s Notice of Entry of Judgment and/or Order 

and Plea/Judgment, and we remand this case to the district court 

for further proceedings consistent with this opinion. 

II. Background

A. Factual Background and District Court Proceedings

In a complaint dated December 21, 2015, the State charged 

Wakamoto with committing the offense of OVUII on December 2, 

2015, in violation of HRS § 291E-61(a)(1). A bench trial took 

place on September 20, 2016 and November 17, 2016. At trial, 

HPD Officer Jesse Takushi (“Officer Takushi”) and Officer 

Kotobalavu testified for the State. 

According to the officers’ testimonies, on December 2, 

2015, at about 2:35 a.m., on Kalakaua Avenue fronting the Moana 

Surfrider Hotel, Officer Takushi conducted a traffic stop on a 

vehicle he observed twice unsafely crossing a broken white line. 

When Officer Takushi approached the vehicle, he observed that 

Wakamoto’s eyes were red and watery and that his pupils appeared 

dilated, and he noticed a strong alcoholic-type odor coming from 
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Wakamoto. According to Officer Takushi, Wakamoto’s responses 

were delayed and slurred, and he could not locate his 

registration paperwork. Wakamoto apparently repeatedly picked 

up and dropped his license and insurance paperwork, but he did 

hand them to Officer Takushi in a timely manner. 

Officer Takushi testified that when Wakamoto stepped out of 

the vehicle, he stated on his own accord that he “didn’t have 

anything to drink,” but Officer Takushi continued to smell an 

alcoholic odor. At about this point of the traffic stop, 

Officer Kotobalavu, responding to Officer Takushi’s radio 

request for assistance, arrived on the scene. 

At the start of his trial testimony more than nine months 

after the arrest, Officer Kotobalavu could not recall the 

location of the traffic stop:

[By the Prosecutor:]

Q. Do you recall the location of this traffic 

stop?

A. No, sir, I don’t recall at this time.

Q. Is there something that would help to refresh your 

memory?

A. Yes, my report.

Q. Okay.

[Prosecutor]: And may the record reflect that 

I’m showing defense counsel.

By [the Prosecutor]:

Q. So, Officer, I’m going to hand you your 

police report. Just go ahead and look at it silently 

and look up at me when you’re done.

A. Okay.

Q. And I’m taking the report back.

Officer, has your memory been refreshed?

A. Yes.

Q. Okay. And do you recall where the location of the 

traffic stop was?
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A. Yes.

Q. Okay. And where was that, sir?

A. Was front -- was on Kalakaua fronting the Moana 

Surfrider hotel.

The record does not reflect how long Officer Kotobalavu reviewed 

his report before resuming his testimony, but he testified that 

he thought Wakamoto’s car was a black two-door Lancer. 

Officer Kotobalavu then testified that as he spoke to 

Wakamoto, he smelled alcohol and saw that Wakamoto had red, 

watery eyes. He testified that Wakamoto was then directed to 

walk about fifteen feet away from his car so that Officer 

Kotobalavu could conduct a field sobriety test on the dry 

concrete sidewalk in front of the Moana Surfrider, which was 

free of debris, well lit, and did not have much foot traffic. 

He further testified that before conducting the field sobriety 

test, Officer Kotobalavu asked Wakamoto a series of questions 

regarding Wakamoto’s health. Officer Kotobalavu also repeatedly 

asked Wakamoto whether he understood his instructions regarding 

the tests. As Wakamoto spoke, Officer Kotobalavu continued to

detect the odor of alcohol coming from him. 

Regarding the walk-and-turn test, Officer Kotobalavu 

testified that he instructed Wakamoto on how to place his feet, 

the direction he should face, and where to place his arms. 

Officer Kotobalavu testified that he also demonstrated the test 

and that after Wakamoto got in the correct position to begin the 

test, he instructed him not to move until he was told to start. 
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Officer Kotobalavu testified that before being told to start, 

however, Wakamoto swayed about six inches in both directions and 

started the test on his own. 

Officer Kotobalavu further testified that during the walkand-turn test, Wakamoto raised his arms at least once about six 

inches away from his body in order to keep his balance while 

walking and that Wakamoto took ten steps instead of the 

instructed nine, and missed a few heel-to-toes, where his heel 

missed his toe by about one inch. According to Officer 

Kotobalavu, contrary to instructions, Wakamoto stopped in the 

middle of the test. He testified that after the ninth step,

Wakamoto appeared unsure whether he was to turn, and then took 

an extra step to turn. 

After testifying to the foregoing, the following exchange 

occurred: 

[By the Prosecutor:]

Q Okay. Is there anything that you recall as far as

his performance other than the turn and the things 

that you had testified about to this point?

A No.

Q Okay. Is there something that would help refresh

your memory?

A My report.

Q Okay. And --

[Defense counsel]: Your Honor, at this time

defense would object. At this point the Officer had two

opportunities to review the document. I’m sure once 

before. At this point I’m asking is the officer -- does

the officer have an independent recollection of the events, 

or he’s just going off what he’s written right now? He’s 

had -- I believe he has had multiple opportunities to look 

at the document, and there is -- I do believe there’s a 

difference between the two.
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[Prosecutor]: Your Honor, if that’s an

issue, I understand [Defense counsel’s] point. If that’s 

an issue, you know, we can make this a past recollection

recorded. I mean, this was in December of last year, your 

Honor, and the officer conducts these traffic stops

routinely, so --

THE COURT: Overruled.

BY [the Prosecutor]:

Q Officer, I’m going to hand you your -- your

report. Go ahead and take that -- a look at that

silently, and then just let me know when you’re done.

A Okay.

Q And let the record reflect I’m taking the report

back.

Okay. Officer, so any other observations that

you made of the defendant during just -- just the

walk-and-turn just portion of the test?

A Yes. As he took the -- his turn, he did take one

more extra step, so he turned the wrong way, but as 

he turned, it wasn’t as instructed, short, choppy 

steps. He spun on his right foot to turn himself 

around.

Q Okay. When you say that he turned the wrong way,

which way did he turn?

A To the right.

Q Okay. And which way did you instruct for him to

turn?

A To the left. If you took nine steps, you would

automatically turn to the left.

Q Okay. Anything else happened or any other

observation that you made during this portion of the

test?

A No.

Officer Kotobalavu then went on to testify regarding the oneleg-stand test.

Officer Kotobalavu testified that, in performing the oneleg-stand test, Wakamoto was required to lift either his right 

or left leg about six inches from the ground, with his foot 

remaining parallel to the ground, and with his hands at his 

sides. Simultaneously, Wakamoto was required to look down at 

his feet and count until Officer Kotobalavu told him to stop. 
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Officer Kotobalavu testified that he then demonstrated the test 

and Wakamoto stated that he understood. 

According to Officer Kotobalavu, however, Wakamoto also 

began this test before being instructed to start. He testified 

that, throughout the test, Wakamoto kept his arms raised further 

than six inches away from his body to keep his balance and that 

he hopped to maintain his balance and set his foot down twice,

primarily during the first twenty (20) seconds of the test. The 

officer testified that Wakamoto also swayed at least three times 

throughout the test. Officer Kotobalavu stopped the test after 

thirty (30) seconds, and arrested Wakamoto. 

During Officer Kotobalavu’s cross-examination, defense 

counsel began a line of questioning regarding the specific 

circumstances of the traffic stop, such as whether the vehicle 

had four or two doors. After the prosecutor objected, defense 

counsel explained:

[Defense counsel]: This goes to my -- the -- this 

goes to the witness’s ability to recall -- recall

information. What he puts down is pertinent. I believe 

that there is no independent recollection (indiscernible) 

problems, and my only -- this is my opportunity to cross to 

make sure -- to show proof that there are inconsistencies 

in his report and in his testimony.

THE COURT: I’m going to allow it. Go ahead.

Officer Kotobalavu then explained that he had previously 

testified and had written in his report that the vehicle was a 

two-door, but according to HPD’s vehicle license plate search, 

Wakamoto’s vehicle was a four-door. Defense counsel asked 
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Officer Kotobalavu whether he had asked Wakamoto whether he had 

allergies and whether he had just finished a double shift at 

work. Officer Kotobalavu also testified on cross-examination 

that he remembered Wakamoto saying that he had just come from a 

bar to pick up a friend and Wakamoto could have actually been 

outside the car when he first approached instead of inside, as 

he had earlier testified. 

During additional cross-examination on the second trial 

date, Officer Kotobalavu testified during cross-examination that 

the space between the missed heel-to-toes may have been a halfinch instead of an inch, as he had earlier testified. He also 

reiterated that he told Wakamoto which way to turn and 

demonstrated how to execute the test correctly. 

Wakamoto then also testified. During direct examination, 

Wakamoto testified that Officer Kotobalavu did not specify the 

foot on which he needed to step first or which direction to turn 

during the walk-and-turn test. Wakamoto testified that the 

officer also only instructed him to keep his arms at his side. 

He also testified that he was driving on the night in question 

because he gave a ride home to a friend who was intoxicated, the 

most direct route between the bar and his friend’s home was down 

Kalakaua Avenue, and he was familiar with the area. 

After considering all of the testimony, the court found 

Wakamoto guilty as charged. The district court explained its
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ruling at length. In considering the testimony, the court found 

that Wakamoto’s breath smelled like alcohol, and that he had 

red, watery eyes. As to the use of Officer Kotobalavu’s report 

to refresh his recollection, the court stated: 

It is true Officer Kotobalavu indicated sometimes he needed 

to reference his report and he couldn’t remember. Granted 

that this happened in December of 2015, I totally 

understand that. He did indicate, though, that when he 

performs these [field sobriety tests], he specifically 

instructs, demonstrates, and then instructs again. 

 

The court noted several aspects of the walk-and-turn test that 

Officer Kotobalavu had testified to before reviewing his report

a second time: that Wakamoto had started the walk-and-turn test 

too soon, missed the heel-to-toe by one inch at least one time, 

raised his arms away from his body by at least six inches at 

least one time, stopped in the middle of the test, and took ten 

steps instead of the instructed nine. 

The court also referenced as a basis for the conviction, 

however, Officer Kotobalavu’s testimony after his second review 

of his report, i.e., that because Wakamoto took an extra step, 

it followed that he turned the wrong way. 

The court then discussed the results of the one-leg-stand 

test, and found that Wakamoto started the test before 

instructed, consistently raised his arms through the test, 

hopped, and put his foot down before the end of the test. The 

court sentenced Wakamoto to a one-year revocation of license, a 
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minimum fourteen-hour substance abuse assessment program, and 

various fines and fees. His sentence was stayed pending appeal. 

B. Appeal to the ICA and Application for Writ of Certiorari

Wakamoto timely filed a Notice of Appeal to the ICA, and 

presented a single argument, which he again raises on 

certiorari:

The district court erred in denying Wakamoto’s 

request to determine if the [standard field sobriety test] 

officer was testifying from his memory or from a past 

recollection recorded.

Wakamoto argued:

In this case, Officer Kotobatavu [sic] was permitted 

to see his report a second time to try to refresh his 

memory of Wakamoto’s [field sobriety test] over defense 

objection that it was unclear if his memory was actually 

refreshed or he was testifying to a past recollection for 

which he had no present personal knowledge. Instead of 

overruling the defense objection, the district court should 

have asked, or let defense counsel ask, if his memory was 

actually refreshed or not. It was error for the court not 

to do, and it involved a critical piece of evidence.

 

The ICA rejected the challenge. The ICA indicated that there 

was “no evidence, such as an admission that he relied solely on 

his report or a failure to recall other details about his 

arrival on the scene, to suggest that [Officer Kotobalavu] based 

his testimony only on what he read in the report.” Wakamoto, 

SDO at 2 (citations omitted). The ICA also stated that before

looking at his report the second time, Officer Kotobalavu 

“recalled numerous details about the incident, including 

Wakamoto’s appearance and odor, how he conducted and Wakamoto 

performed the [horizontal gaze] test, and other aspects of 
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Wakamoto’s performance of the Walk-and-Turn test.” Wakamoto,

SDO at 3 (citations omitted). The ICA then stated, "It is 

reasonable under the circumstances to infer that the [field 

sobriety test] report merely jogged Officer Kotobalavu’s memory. 

Wakamoto provides no authority for the contention that an 

officer is required to say whether his recollection was 

refreshed after looking at the report, and we find none.” 

Wakamoto, SDO at 4 (emphasis added). 

In his Application, Wakamoto reasserts the argument made to 

the ICA:

Whether the ICA gravely erred in holding that the district 

court did not err in denying Wakamoto’s objection to an 

officer’s testimony in an OVUII case as refreshed memory 

when the officer had already reviewed his report once to 

answer the prosecutor’s questions about the standardized 

field sobriety test?

(some capitalization removed). Wakamoto asserts in his 

Application that “no foundation had been laid” for Officer 

Kotobalavu’s testimony regarding the field sobriety test after

his second review of his police report. 

III. Standard of Review

Errors on evidentiary rulings are subject to the abuse of 

discretion standard unless the application of the evidentiary 

rule in question can produce only one correct answer, in which 

case, we review the alleged error under the “right/wrong” 

standard. Kealoha v. County of Hawaiʻi, 74 Haw. 308, 315, 319–

20, 844 P.2d 670, 674, 676 (1993); State v. Dibenedetto, 80 
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Hawaiʻi 138, 145, 906 P.2d 624, 631 (App. 1995) (citing Kealoha, 

74 Haw. at 315, 844 P.2d at 674). Because a witness cannot be 

permitted to testify if the witness has no present recollection, 

we apply the “right/wrong” standard in determining the 

correctness of a ruling regarding the admissibility of testimony 

under HRE Rule 612. See Kealoha, 74 Haw. at 319–20, 844 P.2d at

676. 

IV. Discussion

A. Evidentiary foundation required by HRE Rule 612

As indicated above, the first time Officer Kotobalavu 

reviewed his report, he testified in response to the deputy 

prosecuting attorney’s question that his memory had been 

refreshed before continuing to testify. The second time he 

asked to see his report, defense counsel objected, raising 

questions regarding whether the officer actually had a present 

memory or whether he was testifying off of his report. The 

court overruled the objection, and the officer continued to 

testify regarding Wakamoto’s field sobriety test without stating 

that his memory had been refreshed by reviewing his report.

Wakamoto asserts that the district court erred by 

overruling his objection and allowing Officer Kotobalavu to 

testify regarding the field sobriety test after reviewing his 

report the second time because HRE Rule 612 requires a 

foundation to have been laid that the Officer’s memory was 
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actually refreshed before he resumed his testimony. The ICA 

stated “Wakamoto provides no authority for the contention that 

an officer is required to say whether his memory was refreshed 

after looking at the report, and we find none.” Wakamoto, SDO 

at 4. As explained below, however, legal authority does require 

such a foundation.

First, the language of HRE Rule 612 provides in relevant 

part:

If a witness uses a writing to refresh the witness’[s] 

memory for the purpose of testifying, either:

 (1) While testifying, or

 (2) Before testifying, if the court in its discretion 

determines it is necessary in the interests of justice, an 

adverse party is entitled to have the writing produced at 

the hearing, to inspect it, to cross-examine the witness 

thereon, and to introduce in evidence those portions which 

relate to the testimony of the witness. . . . .

HRE Rule 612 sets out procedural requirements that must be 

followed when a writing is used to refresh a witness’s testimony

while testifying. At first blush, the rule does not seem to 

address whether a foundation must be laid that a witness’s 

memory has been refreshed after reviewing the writing. However, 

a witness’s memory is not necessarily refreshed after reviewing 

a writing, and the plain language of the rule indicates it 

governs a writing used to refresh a witness’s memory. In other 

words, HRE Rule 612 is triggered only when a writing actually 

refreshes the witness’s memory. Thus, the language of HRE Rule 
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612 alone requires that a foundation be laid that a witness’s 

memory has been refreshed after reviewing a writing.

In Dibenedetto, the ICA provided further guidance on this 

issue. That appeal arose out of a defendant’s conviction by a 

jury for Driving Under the Influence of Intoxicating Liquor 

(“DUI”) under HRS § 291-4, the law in effect at the time. See

Dibenedetto, 80 Hawaiʻi at 141, 906 P.2d at 627. A police 

officer testified regarding the defendant’s performance on a 

field sobriety test. See id. Based on the officer’s responses, 

defense counsel argued that the officer was not testifying from 

his present recollection but off of the written police report, 

and moved to strike the officer’s testimony. See id. The trial 

court denied the motion to strike, ruling that the matter was 

for the jury to determine, see 80 Hawaiʻi at 142, 906 P.2d at 

628, which was one of the issues on appeal addressed by the 

ICA, 80 Hawaiʻi at 144-45, 906 P.2d at 630-31. 

After reviewing the officer’s testimony, in which the 

officer indicated that his testimony was based on what he had 

recently read in his report, the ICA concluded that the officer 

did not have a “present recollection” of the field sobriety test 

at the time he testified, then addressed whether the trial court 

had erred in failing to strike the officer’s testimony regarding 

the field sobriety test. Dibenedetto, 80 Hawaiʻi at 144, 906 

P.2d at 630. 
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The ICA then discussed HRE Rule 612, stating: 

[HRE] Rule 612 indicates that a witness may use a writing 

to refresh his memory for the purpose of testifying. A 

writing, such as a police report, used to refresh a 

witness’s memory is ordinarily not submitted into evidence. 

3 J. Wigmore, Evidence in Trial at Common Law § 763, at 142 

(Chadbourn rev. ed. 1970). When used to refresh the 

witness’s present recollection, a writing is solely 

employed to jog the memory of the testifying witness. 1 J. 

Strong, McCormick on Evidence § 9, at 29 (4th ed. 1992). 

Accordingly, when a writing is used to refresh a witness’s 

recollection, the witness should testify from a memory thus 

revived, resulting in testimony from present recollection, 

not a memory of the writing itself. Id. A witness’s 

recollection must be revived after he or she consults the 

particular writing or object offered as a stimulus so that 

the resulting testimony relates to a present recollection. 

3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 612[01], 

at 612-16 (1995). If the writing fails to rekindle the 

witness’s memory, the witness cannot be permitted to 

testify as to the contents of the writing unless the 

writing is otherwise admitted into evidence. 28 C. Wright 

& V. Gold, Federal Practice and Procedure: Evidence § 6183, 

at 463 (1993).

80 Hawaiʻi at 144, 906 P.2d at 630 (internal quotation marks, 

brackets, and ellipses omitted).

The ICA held that the question of whether the officer was 

properly allowed to testify about the field sobriety test was 

not a question of credibility for the jury to decide, as the 

State maintained, but one of admissibility for the judge to 

determine pursuant to HRE Rule 104(a), which mandates that 

preliminary questions concerning the admissibility of evidence 

be determined by the court. See 80 Hawaiʻi at 144-45, 906 P.2d 

at 630-31. The ICA further cited to HRE Rule 601, which 

provides that “[e]very person is competent to be a witness 

except as otherwise provided in the [HRE].” Id. The ICA then 

cited to HRE Rule 602, which provides in relevant part:
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Rule 602 Lack of personal knowledge. A witness may not 

testify to a matter unless evidence is introduced 

sufficient to support a finding that the witness has 

personal knowledge of the matter. Evidence to prove 

personal knowledge may, but need not, consist of the 

witness’ own testimony. . . .

The ICA further noted that the Commentary to HRE Rule 602 (1993) 

defines “personal knowledge” of a witness to “mean[] that the 

witness perceived the event about which [the witness] testifies

and [the witness] has a present recollection of that 

perception.” Commentary to HRE Rule 602 (citations omitted). 

Based on its review of the officer’s testimony, the ICA 

concluded that the requisite foundation of personal knowledge 

based on a presently refreshed memory had not been met and that 

under the “right/wrong” standard of review, the trial court had 

erred by not striking the officer’s testimony regarding the 

field sobriety test. Dibenedetto, 80 Hawaiʻi at 145, 906 P.2d at 

631.5

Thus, as indicated by the ICA and the authorities it cited 

in Dibenedetto, and as stated in the language of HRE Rule 612, 

testimony of a witness is admissible under that rule only when 

 

5 This court cited to Dibenedetto’s analysis of HRE Rule 612 in State v. 

Espiritu, 117 Hawaiʻi 127, 137, 176 P.3d 885, 895 (2008). In Espiritu, the 

defendant alleged various mistakes in the admission of testimony under HRE 

Rule 612, including that, on one occasion, the prosecutor never asked if the 

complaining witness’s memory had been refreshed after reviewing the police 

report. See Espiritu, 117 Hawaiʻi at 138, 176 P.3d at 896. This court ruled

that, despite this omission, the witness’s testimony “was nearly identical 

both before and after viewing the [police] report” and thus the evidence 

showed that the witness was not “merely reading from the report.” 117 Hawaiʻi 

at 137, 176 P.3d at 895. In this case, however, the requisite foundation 

that Officer Kotobavalu was testifying from a refreshed memory after 

reviewing his report is not demonstrated by his testimony. 
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the writing has actually refreshed the witness’s memory. A 

witness must testify based on personal knowledge, which by 

definition means the witness perceived an event and has a 

present recollection of that perception. See Commentary to HRE 

Rule 602. Therefore, after reviewing a writing while 

testifying, testimony of the witness laying a foundation that 

the witness’s memory has actually been refreshed after reviewing 

the writing is required before the witness’s testimony can be 

admitted under HRE Rule 612. 

This conclusion is supported by HRE Rule 104(a), which

provides in relevant part: “(a) Questions of admissibility 

generally. Preliminary questions concerning . . . the 

admissibility of evidence shall be determined by the court. . . .” 

1 Kenneth S. Broun et al., McCormick on Evidence § 9 (7th ed. 

2016) (“It is a preliminary question for [the trial judge] under 

Rule 104(a) whether the memorandum actually does refresh.”).

Actual refreshment of memory is a preliminary question 

concerning the admissibility of testimony under HRE Rule 612, 

which the court must determine prior to allowing the witness to 

testify pursuant to that rule. Thus, HRE Rule 104(a) also 

requires a showing that a witness’s memory has been refreshed 

before testimony can be admitted under HRE Rule 612. 

In addition, Professor Addison Bowman discusses HRE Rule 

612 in his Hawaii Rules of Evidence Manual as follows:
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21

Refreshing a witness’[s] recollection at trial is an 

alternative to leading. . . . When a witness experiences a 

memory lapse or omits to mention a detail expected by the 

proponent, the witness can be led or refreshed. The 

material used to refresh can be anything that awakens a 

memory or prods a current awareness of a detail that should 

be included in the witness’[s] narrative. See, e.g., State 

v. Keohokapu, 127 Hawai[ʻ]i 91, 276 P.3d 660 (2012) (police 

report that contained witness’[s] statements); State v. 

Espiritu, 117 Hawai[ʻ]i 127, 176 P.3d 885 (2008) (police

report that recited contents of text messages the 

complaining witness received from the defendant). 

Typically, the refreshing document will be a prior 

statement of the witness.

Admissibility of the refreshing material is of no 

concern if the technique succeeds because the witness will 

be instructed to read the document to herself and then will 

be asked if her memory is refreshed. See State v. Lam, 75 

Haw. 195, 207 n.10, 857 P.2d 585, 592 n.10 (1993) (authentication of document unnecessary because it “merely serves 

to refresh the witness’[s] present memory and is not 

evidence”). If she answers “Yes,” then the examination 

will proceed in the usual fashion . . . . If, on the other 

hand, the effort to refresh fails to stimulate an 

independent, present recollection in the witness, testimony 

that merely parrots the contents of the document will not 

be admitted over a rule 602 objection asserting lack of 

personal knowledge. State v. Espiritu, 117 Hawai[ʻ]i 127, 

137, 176 P.3d 885, 895 (2008) (dictum). For this 

proposition, Espiritu cited State v. Dibenedetto, 80 

Hawai[ʻ]i 138, 906 P.2d 624 (App. 1995) (police officer had 

his report but no memory of a field sobriety test he had 

conducted); compare State v. Ferrer, 95 Hawai[ʻ]i 409, 431-

33, 23 P.3d 744, 766-68 (App. 2001) (officer remembered 

administering Intoxilyzer test with result “over.08” 

although he needed refreshing about the accused’s “exact 

score on the test”). . . . 

Addison M. Bowman, Hawaii Rules of Evidence Manual, at 6-82 to 

6-83 (2016-2017 ed.) (emphasis added).

Professor Imwinkelried’s text, Evidentiary Foundations, is 

also in accord, indicating that “[t]he witness states that 

viewing the document . . . refreshes his or her memory” before 

the witness then testifies from revived memory. Imwinkelried, 

supra, at 466.
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22

As in Dibenedetto, a review of Officer Kotobalavu’s

testimony regarding Wakamoto’s field sobriety test after the 

defense objection renders it unclear whether he was testifying 

from a present recollection of what he had perceived, or whether 

he was testifying from his memory of what he had read regarding 

his report. Proper foundation was not laid for his continued 

testimony regarding Wakamoto’s field sobriety test that Officer 

Kotobalavu’s recollection had been refreshed because the trial 

court did not require that he be asked whether his recollection 

had been refreshed after the defense raised the HRE Rule 612 

objection. 

Therefore, the district court erred by overruling the 

defense objection and by admitting Officer Kotobalavu’s

continued testimony without requiring a foundation that Officer 

Kotobalavu’s memory had been refreshed after reviewing his 

report. The ICA also erred by affirming the district court and 

by indicating that no legal authority exists requiring such an 

evidentiary foundation.
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23

B. The error was not harmless beyond a reasonable doubt

The erroneous admission of evidence is not harmless beyond 

a reasonable doubt if there is a reasonable possibility that the 

error might have contributed to the conviction. See State v. 

Subia, 139 Hawaiʻi at 69, 383 P.3d at 1207. In this case, the 

district court specifically stated it partly relied on Officer 

Kotobalavu’s testimony after his second review of his report 

(that because Wakamoto took an extra step, it followed that he 

turned the wrong way) as a basis for convicting Wakamoto of 

OVUII. Therefore, despite the existence of additional evidence 

for the conviction, the evidentiary error cannot be deemed 

harmless beyond a reasonable doubt. 

V. Conclusion

For the foregoing reasons, we vacate the ICA’s November 22, 

2017 Judgment on Appeal entered pursuant to its SDO, as well as 

the district court’s Notice of Entry of Judgment and/or Order 

and Plea/Judgment, and we remand this case to the district court 

for further proceedings consistent with this opinion. 

Earle A. Partington, /s/ Mark E. Recktenwald

for petitioner

 /s/ Paula A. Nakayama

Justin P. Haspe, DPA

for respondent /s/ Sabrina S. McKenna

 /s/ Richard W. Pollack

 /s/ Michael D. Wilson