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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI, 

Respondent/Plaintiff-Appellee, 

vs.

ALEXANDER MIRANDA, 

Petitioner/Defendant-Appellant.

SCWC-17-0000660

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-17-0000660; CR. NO. 16-1-0315)

JUNE 4, 2020

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

OPINION OF THE COURT BY POLLACK, J.

A defendant in a criminal prosecution has a 

constitutionally protected right to cross-examine a witness for 

potential bias or motive. In this case, the defendant argues 

that this right was violated when the circuit court prevented

defense counsel from cross-examining the complainant about 

Electronically Filed

Supreme Court

SCWC-17-0000660

04-JUN-2020

07:53 AM
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disciplinary action the complainant might have faced as a United 

States Marine for instigating a fight in violation of its code 

of conduct provisions. We conclude that because the defense was 

precluded from questioning the complainant about this potential 

source of bias, the jury did not have sufficient information 

from which to make an informed appraisal of the complainant’s 

motives or bias. We also provide guidance concerning the 

admissibility of other evidence as to the contents of a 

destroyed video recording under Hawaii Rules of Evidence Rules

1004 and 403. 

I. BACKGROUND AND PROCEDURAL HISTORY

On March 27, 2015, Alexander Miranda was involved in 

an altercation in which complainant David Metts’ jaw and nose 

were broken. Miranda was subsequently charged by felony 

information, on March 2, 2016, in the Circuit Court of the First 

Circuit (circuit court) with committing the offense of assault 

in the Second Degree, in violation of Hawai‘i Revised Statutes 

(HRS) § 707-711(1)(a) or (b).1 Miranda pleaded not guilty to the 

charge.

 

1 HRS § 707-711(1) (2014) provides in relevant part as follows: 

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

degree if:

(a) The person intentionally or knowingly causes 

substantial bodily injury to another; 

(continued . . .)
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A. Pre-Trial Proceedings

Prior to trial, Miranda filed a motion to dismiss the 

charge, arguing that the State’s delay in bringing the charge 

violated his due process right to a fair trial. In a 

declaration submitted with the motion, defense counsel averred 

the following facts. The altercation occurred on the sidewalk 

in front of an ABC store in Waikīkī around midnight on March 27, 

2015. Shortly after, in the early morning of March 28, Miranda 

and his friend Steven Rodriguez were arrested for their 

involvement in the incident. After their arrest, Officer Arthur 

Gazelle of the Honolulu Police Department (HPD) reviewed 

security camera footage from the ABC store, which recorded the 

altercation. Officer Gazelle took a photograph of the video 

screen when it showed Rodriguez and Metts, but not Miranda. HPD 

Detective (Det.) Michael Burger was thereafter assigned to 

investigate the incident. According to Det. Burger’s closing 

report, he contacted Newell Hirata, an ABC employee, sometime

during his investigation and Hirata informed him that the 

surveillance video was no longer available.2 Miranda maintained 

 

(. . . continued)

(b) The person recklessly causes serious or substantial 

bodily injury to another[.]

2 At the hearing on the motion, Miranda’s counsel argued that he 

had contacted Hirata, who would testify that he never received a request for 

the video. However, counsel declined the circuit court’s offer to continue 

the hearing in order to subpoena Hirata. 
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that the loss of the video was caused by the State’s delay in 

bringing the charge, and because the video would have shown that 

Metts was the first aggressor and Miranda acted in self-defense, 

the loss of the video violated his right to a fair trial. 

At the hearing on the motion to dismiss,

3 Officer 

Gazelle testified that the relevant portion of the video lasted 

about four minutes and showed an argument between Metts, his 

companion Casey Smith, Miranda, Rodriguez, and multiple other 

individuals. According to Officer Gazelle, Metts and Smith did 

not strike Miranda or Rodriguez, and it did not appear that they 

were instigating the fight. Miranda threw the first punch, 

striking Metts in the face, and after moving 10 to 15 feet away 

from the group, he suddenly ran back to punch Metts again. 

Officer Gazelle also stated that he took a photograph of the 

video and that it showed Metts and Rodriguez. The court denied 

the motion, concluding that Miranda had not proven that he 

suffered actual prejudice from the video’s destruction because 

the testimony indicated that the video was not exculpatory and 

would not have supported his claim of self-defense. 

 

3 The Honorable Dexter D. Del Rosario presided over the hearing. 
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B. Trial and Post-Trial Proceedings

A jury trial commenced with motions in limine on April 

10, 2017.4 The State sought permission to present Officer 

Gazelle’s testimony regarding the contents of the video. 

Miranda filed a written opposition and a separate motion in 

limine seeking an order precluding Officer Gazelle’s testimony 

as to the video’s contents. The court ruled that Officer 

Gazelle could testify that he viewed the video, but he would be 

precluded from describing its contents. 

Defense counsel then informed the court that the 

defense would seek to admit the photograph that Officer Gazelle 

had taken of the security video screen into evidence. Counsel

asked the court to make a ruling as to the admissibility of the 

photograph, which according to the officer’s report showed the 

moment before Rodriguez punched Metts’ face. Miranda was not in 

the picture, counsel explained, and it was consistent with 

Miranda’s defense that he had walked away after throwing one 

punch in self-defense to stop the fight. The court stated that 

it was unable to determine the relevance of the photograph 

without knowing what the testimony of the witnesses would be. 

Defense counsel proposed to give an offer of proof, but the 

court stated that the issue could be decided at the bench or 

 

4 The Honorable Sherri L. Iha presided over the trial proceedings. 
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during recess after the relevant witnesses had testified. The 

State maintained that allowing the photograph into evidence 

would open the door to Officer Gazelle’s testimony as to the 

video’s contents. The court noted that it was “one picture in 

an entire video” and that its introduction might open the door 

to testimony regarding the contents of the video recording. 

The State called Samuel Wight as its first witness. 

Wight testified that on the night of the incident, he was 

walking in Waikīkī when he heard shouting and cursing. He 

turned around and saw three people confronting two other people;

the trio was yelling at the other two individuals, who were not 

yelling back. According to Wight, the taller male of the three 

individuals, who he later identified as Miranda, was standing 

about a meter away from Metts, who had his hands up with his 

palms facing forward. Miranda took a step toward Metts and

punched him with an uppercut. Wight said that he heard a loud 

cracking sound and saw Metts start spitting blood. Wight ran 

over to the group and Miranda was cocking his fist back as if he 

was going for another hit, but he did not punch Metts again. 

Wight acknowledged that he did not include in his written 

statement to police that he witnessed a “fist cocked back” or 

heard a loud cracking sound. Wight also stated that he did not 

see anyone else punch Metts and did not see Metts push or punch 

anyone in the other group or get into a fighting stance. 
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Metts, who was enlisted in the United States Marines 

at the time of the incident, testified that on the evening of

March 27, 2015, he was at a bar in the Waikīkī area just before 

midnight with Smith, also a marine. He stated that he had no 

more than three drinks at the bar and was not drunk. Metts said 

that he and Smith encountered Miranda and two other men on the 

sidewalk in Waikīkī. As they passed the group, he turned his 

body to let them by and was shoulder-bumped. When he turned 

around to see what had happened, the three males were looking 

back at them. One of the three males stood “forehead to 

forehead” with Smith, whose shoulder was in a sling. Metts said 

that he shifted his focus to Smith when he saw the sling get 

ripped off Smith’s shoulder and that he was then struck across 

the face. He immediately felt blood fill his mouth and his 

mouth felt different. He believed he was struck again, but he 

was no longer positive and only remembered being hit once. 

Metts testified that he never touched Miranda or any of his 

friends.

On cross-examination, Metts acknowledged that he said

he had shoved someone during an interview with a detective, but 

that now he did not remember shoving anyone or saying that he 

did. He also acknowledged telling the detective in the

interview that he had been punched twice. Metts stated that 

during a field lineup, he singled out Miranda as the person who 
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punched him and stated that both Miranda and the person next to 

him in the lineup were part of the group. Audio from the 

recorded interview was played for the jury. In the recording, 

Metts stated that he was hit twice by the same person while 

trying to keep one of the males away from his friend, and that 

during the identification procedure he pointed out two of the 

males in the lineup but could not say which one hit him.5

Defense counsel then asked Metts about the “Marine 

Corps . . . code of conduct,” (code of conduct) but the State 

objected to the question as irrelevant. The following exchange 

took place: 

[DEFENSE COUNSEL]: What’s the policy--what’s the code of 

conduct on alcohol?

[METTS]: I don’t know it verbatim.

[DEFENSE COUNSEL]: Just tell me what your recollection is of it.

[METTS]: Don’t get overly drunk and make a fool of 

yourself.

[DEFENSE COUNSEL]: Okay. What are the consequences if you 

violate that code of conduct?

[PROSECUTOR]: Objection. Relevance.

THE COURT: Sustained.

Defense counsel asked for a bench conference and argued that the 

questions went to bias and motive. The court replied there was 

no evidence that Metts was overly drunk or acting out and it 

 

5 Metts acknowledged the inconsistency in his testimony. On redirect examination, Metts testified he was on painkillers at the time he gave 

his interview, his voice in the audio was “slower and slurrier,” his 

“thinking” at the time was slower, and it was harder to focus. 
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would not “allow [defense counsel] to place that on trial here.” 

The State argued that, because Metts was no longer in the 

Marines, “bias, interest, and motive is gone.” Defense counsel 

responded, “This is at the time of the offense--” to which the 

court replied, while counsel was in mid-sentence, “Right. I 

understand,” and ended the bench conference.

Defense counsel then attempted to ask Metts about the 

code of conduct with regard to fighting, and the State’s 

objection was sustained before Metts could respond:

[DEFENSE COUNSEL]: What is the Marine code of conduct in 

terms of fighting?

[PROSECUTOR]: Objection, Your Honor.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Okay. Okay.

Dr. Jerry Beckham, who attended to Metts’ injuries 

after the incident, testified that Metts stated he had been hit 

twice in the face and complained of jaw and nose pain. Metts 

had a jaw fracture in two places and a nose fracture, and his

injuries were consistent with blunt force trauma to the face. 

The doctor stated that he could not say how many times Metts had 

been hit and that his injuries could be consistent with being 

punched once or more than once.

HPD Officer Riley Saunders, who arrived at the scene 

after the incident occurred, testified that he apprehended 

Miranda, Rodriguez, and Victor Vargas as they were running away 
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from the scene. He placed the three men in a field lineup with 

a male bystander who had not been involved in the incident. 

Wight and Metts both identified Miranda and Rodriguez as males 

that had hit Metts. Officer Saunders stated that, at some point 

after the identification, Miranda said, “Officer, to be honest, 

I did it. I hit the kid.” The officer further testified that 

during booking he noticed Rodriguez wince as his handcuffs were 

removed and that his right hand “look[ed] a little puffy”; the 

officer did not recall observing any injuries to Miranda’s 

hands. 

Officer Gazelle testified that on the night of the 

incident he was flagged down in response to an assault-type case

that occurred in front of an ABC store. The officer stated that 

he viewed a surveillance video from the ABC store but was unable 

to obtain a copy of it at the time. He left a form with the 

manager requesting a copy of the video. Officer Gazelle

indicated that he took one picture of the surveillance video 

with his phone.

Det. Burger testified that he interviewed Metts in the 

early morning of March 28, 2015, in an emergency room at Tripler 

Medical Army Hospital. He prepared two separate photographic 

lineups, one containing a photograph of Miranda and the other 

containing a photograph of Rodriguez, prior to meeting with 

Metts and Smith at the hospital. Neither Metts nor Smith was 
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able to identify anyone depicted in the photographs as being a 

suspect in the case. Det. Burger testified that he learned 

during his investigation that Rodriguez may have assaulted 

Metts. The detective also explained that he obtained an 

administrative subpoena requesting the video surveillance from 

the ABC store and was eventually told the video had been written 

over. 

Miranda testified that he, Rodriguez, and Vargas were 

enlisted in the United States Army and stationed on Oʻahu at the 

time of the incident. That evening, as they were walking toward

an ABC store in Waikīkī, one of his friends was teasing him 

about an ex-girlfriend and pointing in the direction she used to 

live; they began laughing and continued walking. Miranda heard 

someone say, “What the fuck? What the fuck did you just say to 

me? I’ll fuck you up?” and he, Rodriguez, and Vargas turned 

around. Metts and Smith were yelling at them, and Rodriguez

headed toward the two men as they headed toward them, until 

Rodriguez and Metts were face to face. Metts shoved and grabbed 

Rodriguez, Miranda stated. He told Metts and Smith to relax and 

that they were not talking about them. Metts replied that he 

“[didn’t] give a fuck, he’ll fuck me up,” and came towards him; 

Miranda stated that he then defended himself with one punch to 

the right side of Metts’ face, aiming for the nose. He started 

to walk away and turned around again when he noticed that 
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neither of his two friends had followed him, and he saw 

Rodriguez in a scuffle with Metts. He went over to grab 

Rodriguez, and the two walked away. Miranda said that they were 

stopped by police and after the field lineup he told officers, 

“to be honest . . . I hit the kid in self-defense.” 

During Miranda’s testimony, defense counsel attempted 

to introduce the photograph of the surveillance video into 

evidence, and a bench conference was held. The State argued 

that if Miranda introduced the photograph, it should be allowed 

to call Officer Gazelle in rebuttal to give context as to what 

the photograph showed and what was in the video. The court 

stated that it agreed. Miranda’s counsel responded that the 

photograph’s purpose was to show the area where the incident 

happened, there was no dispute as to the photograph’s accuracy, 

and testimony would not be elicited about any actions depicted

in the photograph. Rather, the photograph was to explain the 

area and to show who was pictured in it. The court ruled that 

the officer would be allowed to testify as to the video’s 

contents if the photograph was introduced, noting that its

introduction would be prejudicial without the officer’s 

testimony and that Miranda was not even in the picture. Counsel 

replied, “Right, that supports our defense.” The court stated 

it had ruled.
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Miranda was then shown the photograph. The photograph 

fairly and accurately depicted the front of the ABC store, 

Miranda stated, and Metts, Rodriguez, and Vargas were pictured, 

but he was not. Rodriguez was holding a hat in the photograph, 

Miranda testified, and Rodriguez had been wearing the hat prior 

to the photograph being taken and as they passed the ABC Store. 

After Miranda’s testimony, the State called Officer 

Gazelle as a rebuttal witness. Defense counsel objected to the 

testimony as hearsay and disputed that the introduction of the 

photograph had opened the door to Gazelle’s testimony. The 

court overruled the objection, and Officer Gazelle testified 

that he viewed surveillance video capturing the time frame from 

about 11:30 p.m. until 11:34 p.m. The officer testified that at 

some point during the video, Metts, Smith, Miranda, Rodriguez, 

and Vargas appeared, and that Miranda and Rodriguez seemed to be 

“calling out Metts and Smith.” The officer explained that 

Miranda’s and Rodriguez’ body language was “more forward” and 

they had “clenched fists” while Metts and Smith put their hands 

up at some points and their body language indicated that they 

did not want trouble. Miranda approached Metts and Rodriguez

approached Smith, the officer testified, and at some point, 

Metts had his hands up and stepped to the side, and Miranda 

threw a punch toward Metts. At a different point Rodriguez

threw a punch at Smith. The officer could not recall whether 
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Miranda or Rodriguez threw the first punch. After the initial 

punches were thrown, bystanders began to intervene and broke up 

the fight. Miranda, Rodriguez, and Vargas walked away, but 

Miranda returned about thirty seconds later and punched Metts 

one time before walking away again. The officer saw at least 

three, maybe four, punches being thrown in the video, and that 

at least two of the punches hit Metts and at least one punch hit 

Smith. 

Officer Gazelle testified that he was rushed when he 

was watching the video and was not in control of the rewinding, 

fast-forwarding, pausing, or stopping of the video while he 

watched. The officer acknowledged that his report included only 

three sentences about the surveillance video, he had testified 

to some facts that were not in his report, and he wrote in his 

report that the photograph depicted “the moment before Rodrigues

punched Metts’ face.” Officer Gazelle testified, however, that 

he did not now remember if Rodriguez actually threw the punch or 

not. The officer said that he did not recall taking any notes

while he watched the video, he did not remember seeing any 

shoulder bump in the video, and he did not know how the argument

began.
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At the close of the evidence, the court instructed the 

jury as to accomplice liability.6 Defense counsel objected to 

this instruction as submitted to the jury, arguing that it 

misstated the law as set out in applicable precedent.

7 

The jury found Miranda guilty as charged. 

Subsequently, Miranda filed a motion to set aside the verdict 

and enter a judgment of acquittal or in the alternative for a 

new trial (motion to set aside the verdict). At the hearing on 

the motion, defense counsel maintained that an investigator had 

contacted Hirata, the ABC employee, following the jury’s verdict 

and learned that Hirata did not receive, and had never received, 

any administrative subpoena relating to the security video. The 

 

6 The accomplice instruction read as follows:

A defendant charged with committing an offense may be 

guilty because he is an accomplice of another person in the 

commission of the offense. The prosecution must prove 

accomplice liability beyond a reasonable doubt.

A person is an accomplice of another in the 

commission of an offense with the intent -- if, with the 

intent to promote or facilitate the commission of the 

offense, he aids or agrees or attempts to aid the other 

person in the planning or commission of the offense.

Mere presence at the scene of an offense or knowledge that 

an offense is being committed, without more, does not make a 

person an accomplice to an offense. However, if a person plans 

or participates in the commission of an offense with the intent 

to promote or facilitate the offense, he is an accomplice to the 

commission of the offense.

7 During jury deliberations the court received two jury 

communications regarding the accomplice liability instruction. In its first 

communication to the court, the jury asked: “Reference page 39. Could you 

please clarify accomplice.” The court’s reply instructed the jury to “Please 

refer to your jury instructions.” In its second communication, the jury 

asked: “Is it required to first establish whether or not the defendant caused 

the substantial bodily injury before we consider the accomplice provision?” 

The court replied: “Please consider your instructions as a whole.” 
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court denied the motion, concluding that the defense had 

opportunities to contact Hirata both prior to and during trial 

but failed to do so. 

On July 12, 2017, the circuit court sentenced Miranda 

to four years of probation (circuit court judgment). Miranda 

timely appealed the circuit court judgment to the Intermediate 

Court of Appeals (ICA). 

II. ICA PROCEEDINGS

Miranda argued before the ICA that the circuit court 

erred, inter alia, in precluding the defense from crossexamining Metts on the Marine Corps’ code of conduct and for 

allowing Officer Gazelle to testify as to the contents of the 

security video. The ICA concluded that Miranda had been given a 

constitutionally adequate opportunity to demonstrate to the jury

any bias or motive to lie Metts may have had because the jury 

knew that Metts was a marine at the time of the incident, that 

the Marine Corps has a code of conduct, and that the code 

provides that marines should not become overly intoxicated.

8 The 

ICA also noted that Metts was no longer in the military at the 

time of trial and that any bias he may have had with respect to 

his military career was no longer relevant. Additionally, the 

ICA held that the admission of Officer Gazelle’s testimony about 

 

8 The ICA’s memorandum opinion can be found at State v. Miranda, 

No. CAAP-17-0000660, 2019 WL 5099617 (App. Oct. 11, 2019) (mem.).
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the contents of the video was not erroneous. The ICA stated 

that defense counsel was warned that introduction of the 

photograph would open the door to the testimony, the evidence at 

trial showed that the video was lost and thus supported the 

testimony’s admission, and Miranda had not proven that the video 

was lost in bad faith.9 

III. STANDARDS OF REVIEW

A. Relevance of Evidence

A trial court’s determination regarding the relevance 

of evidence is a conclusion of law. Walsh v. Chan, 80 Hawai‘i

212, 215, 908 P.2d 1198, 1201 (1995). Conclusions of law are 

reviewed de novo under the right/wrong standard of review. 

State v. Lavoie, 145 Hawai‘i 409, 421, 453 P.3d 229, 241 (2019)

(citing Maria v. Freitas, 73 Haw. 266, 270, 832 P.2d 259, 262 

(1992)). 

B. Constitutional Questions

Questions of constitutional law are reviewed de novo 

under the right/wrong standard. State v. Ui, 142 Hawai‘i 287, 

292, 418 P.3d 628, 633 (2018) (quoting State v. Friedman, 93 

Hawai‘i 63, 67, 996 P.2d 268, 272 (2000)).

 

9 Additionally, Miranda appealed the denial of his pre-trial motion 

to dismiss, the instruction given to the jury on accomplice liability, and 

the denial of the post-trial motion to set aside the verdict. The ICA also 

affirmed the circuit court rulings as to these points of error. 
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IV. DISCUSSION

A. The Violation of Miranda’s Right of Confrontation Deprived 

Him of a Fair Trial. 

1. The Circuit Court Erred in Precluding Cross-Examination on 

the Source of Metts’ Potential Bias.

The sixth amendment to the United States Constitution 

and article I, section 14 of the Hawai‘i Constitution guarantees 

an accused the right to confront adverse witnesses. State v. 

Balisbisana, 83 Hawai‘i 109, 115, 924 P.2d 1215, 1221 (1996). 

“Indeed, the main and essential purpose of confrontation is to 

secure for the opponent the opportunity of cross-examination[,] 

. . . [and] the exposure of a witness’ motivation in testifying 

is a proper and important function of the constitutionally 

protected right of cross examination.” Id. (alterations in 

original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79 

(1986)). Additionally, Hawai‘i Rules of Evidence (HRE) Rule 

609.1(a) (2016) provides that the “credibility of a witness may 

be attacked by evidence of bias, interest, or motive.” This 

court has established that “bias, interest, or motive is always 

relevant under HRE Rule 609.1.” State v. Levell, 128 Hawai‘i 34, 

40, 282 P.3d 576, 582 (2012) (brackets omitted) (quoting State 

v. Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987)). 

Our decisions have displayed a commitment to 

protecting an accused’s constitutional right to demonstrate the 
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bias or motive of a witness in cross-examination. In

Balisbisana, the defendant was charged with abuse of a family or 

household member. 83 Hawai‘i at 111, 924 P.2d at 1217. The 

trial court excluded reference to the complainant’s conviction 

for harassing the defendant, and the defendant was subsequently 

convicted. Id. at 112-13, 924 P.2d at 1218-19. On appeal, we

held that the trial court’s exclusion of the prior conviction 

violated the defendant’s right to confront the witness and 

expose evidence of the complainant’s motive for bringing false 

charges against him. Id. at 113-16, 924 P.2d at 1219-22. This 

court explained that the appropriate inquiry is whether “the 

jury had sufficient information from which to make an informed 

appraisal of [the complaining witness’s] motives and bias, 

absent evidence of her conviction for harassing [the 

defendant].” Id. at 116, 924 P.2d at 1222. In not permitting 

defense counsel “to expose the fact from which the jurors could 

appropriately draw inferences relating to [the complainant’s]

motive or bias,” we concluded that the trial court abused its 

discretion as “a reasonable jury might have received a 

significantly different impression” of the complainant’s 

credibility. Id. 

In State v. Marcos, the defendant, who was convicted 

of abuse of a family or household member, was not allowed to 

cross-examine the complaining witness about a pending family 
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court case concerning the custody of their child. 106 Hawai‘i 

116, 117-20, 102 P.3d 360, 361-64 (2004). On appeal, the 

defendant argued that the complaining witness had a motive to 

fabricate the allegations against him and that his right to 

cross-examine the complainant to demonstrate motive was 

violated. Id. at 117, 102 P.3d at 361. In vacating the ICA’s 

affirmance of defendant’s conviction, we held that the 

defendant’s right of confrontation was violated as “the jurors 

were entitled to have the benefit of the defense theory before 

them so that they could make an informed judgment as to the 

weight to place on complainant’s testimony.” Id. (brackets 

omitted).

In Levell, we again confirmed “the appropriate inquiry 

is whether the trier of fact had sufficient information from 

which to make an informed appraisal of the witness’s motives and 

bias.” 128 Hawai‘i at 40, 282 P.3d at 582. In that case, the 

defendant, who was charged with harassment for allegedly shoving 

the complainant, was not permitted to cross-examine the 

complainant as to whether she had stolen and used the 

defendant’s credit cards after his arrest. Id. at 35, 40, 282 

P.3d at 577, 582. The ICA upheld the conviction. On review, 

this court concluded that the defendant’s constitutional right 

to confront the witness had been violated. Id. We explained 

that if the defendant had been allowed to ask about the alleged 
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theft, he might have elicited testimony tending to show that the 

complainant was biased or motivated to fabricate or exaggerate a 

story about harassment, which may have affected the trial 

court’s view of the complainant’s testimony and, ultimately, 

whether the State had proven its case. Id. 

In State v. Acacio, the defendant was convicted of 

terroristic threatening based on a domestic dispute between the 

defendant and his ex-girlfriend, the complaining witness. 140 

Hawaii 92, 94, 398 P.3d 681, 683 (2017). The trial court 

precluded the defense from cross-examining the complainant with 

regard to her knowledge of the defendant’s immigration status. 

Id. The defense had sought to show that the complainant knew 

that the defendant could be deported if he was arrested and her

desire to have him deported motivated her to exaggerate or 

fabricate her allegation. Id. at 101, 398 P.3d at 690. On 

appeal, the ICA affirmed the conviction, holding the jury had 

sufficient information to appraise the credibility of the 

complaining witness because the court permitted evidence that 

the complainant wanted the defendant out of the house and that

she was angry with him for not leaving when asked and before 

speaking to police. Id.

On certiorari review, this court held that the trial 

court’s exclusion of this evidence violated the defendant’s 

right to confrontation. Id. We stated that the “cross-
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examination of the complaining witness is not sufficient if the 

defendant is deprived of an opportunity to present evidence 

about the source of the complaining witness’s potential bias or 

motive.” Id. Since the complaining witness’s knowledge of the 

defendant’s immigration status may have motivated the 

complainant to fabricate the abuse allegation, the trial court’s 

exclusion of the evidence prevented the jury from having 

sufficient information from which to make an informed assessment 

of the witness’s bias or motive. Id. 

These cases demonstrate that the appropriate inquiry 

when reviewing an alleged violation of a defendant’s 

constitutionally protected right to demonstrate bias or motive 

is whether the trier of fact had sufficient information, 

including as to its source, from which to make an informed 

appraisal of the witness’s potential motive and bias. See

Acacio, 140 Hawaii at 100-01, 398 P.3d at 689-90; State v. 

Brown, 145 Hawaii 56, 61-62, 446 P.3d 973, 978-79 (2019)

(complainant’s probation status created a potential interest to 

shape her testimony that was different in nature than other 

admitted evidence). Once the defendant is afforded the 

threshold level of inquiry under the confrontation clause, the 

trial court may conduct a balancing test to weigh the probative 

value of any additional motive evidence against its potential 
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for undue prejudice. Acacio, 140 Hawaii at 99, 398 P.3d at 688 

(“[T]he trial court’s discretion becomes operative ‘only after 

the constitutionally required threshold level of inquiry has 

been afforded the defendant.’” (quoting Levell, 128 Hawaii at 

39, 282 P.3d at 681)).

In this case, Metts testified that he had been 

drinking at a bar immediately prior to the altercation, he was 

not drunk on the evening of the incident, and the altercation 

was initiated by a shoulder bump from Miranda’s group. Metts 

also stated at trial that Miranda was the person who punched him 

and that he did not remember shoving anyone during the incident. 

Defense counsel questioned Metts about several inconsistent 

statements made to Det. Burger after the incident, including 

that Metts could not remember if it was Miranda or Rodriguez

that hit him, whether he was hit twice, and whether he had 

shoved someone. Defense counsel then attempted to question

Metts about his knowledge of the consequences he would be 

subjected to as a marine for violating its code of conduct on 

drinking alcohol. The State objected, and Miranda argued that 

the evidence went to Metts’ bias and motive. The court stated 

that it would not allow inquiry into this area because there was 

no evidence that Metts was overly drunk that night. The court 

sustained the objection, thus precluding the defense from 
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questioning Metts as to his knowledge of any consequences he 

might have suffered as a marine with regard to his alcohol 

consumption. Defense counsel then sought to question Metts as 

to the code of conduct’s provisions on fighting. The court 

sustained the State’s objection before Metts could respond to 

the question. 

Defense counsel’s questions sought to show that Metts

had an interest or motive to be untruthful in his statements to 

police in order to avoid military discipline for his conduct 

with regard to alcohol consumption and fighting. The source of 

this motive was Metts’ awareness of the consequences he would be 

subject to as an enlisted marine for engaging in prohibited 

conduct with regard to drinking and fighting. 

The circuit court entirely precluded cross-examination 

as to the code of conduct with regard to fighting. The jury had 

heard conflicting testimony during trial about who was 

responsible for instigating the argument, whether Metts shoved 

anyone, and how many punches were thrown. However, the jury did 

not receive any testimony about Metts’ knowledge of the 

discipline that may have been triggered for fighting. Awareness 

of the conduct proscribed by the code of conduct regarding

fighting, that may have motivated Metts to exaggerate Miranda’s 

participation in instigating the fight and minimize his own 

culpability to avoid disciplinary consequences, might have 
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affected the jury’s view of the veracity of Metts’ testimony. 

In other words, without knowing what Metts knew or believed 

regarding the consequences for violating the code of conduct as 

to fighting, the jury was not presented with the “source” of 

Metts’ potential bias, and it therefore had insufficient 

information from which to make an informed appraisal of Metts’

motives and biases. Acacio, 140 Hawaii at 101, 398 P.3d at 690; 

Brown, 145 Hawaii at 61-62, 446 P.3d at 978-79.

The ICA nevertheless concluded that Miranda was given 

an adequate opportunity to demonstrate Metts’ bias because the 

jury was informed that Metts was a marine, the Marine Corps has 

a code of conduct, and the code proscribes becoming “overly 

intoxicated.” The ICA’s analysis did not discuss the circuit 

court’s preclusion of cross-examination as to provisions in the 

code of conduct regarding fighting, except to say that any 

motive Metts would have had to deflect responsibility for the 

fight would have been apparent to the jury. But any assumption 

by the ICA that the jury would have necessarily inferred there 

were provisions in the code of conduct concerning fighting would 

be flawed because the defense was not allowed to elicit this 

evidence. Moreover, such an inference would not have informed 

the jury as to the source of Metts’ motivation to shape his 

testimony because defense counsel was prevented from eliciting 
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testimony regarding Metts’ awareness of the consequences he

would face for violating provisions of the code of conduct for 

fighting. Had defense counsel been allowed to elicit Metts’

knowledge of such consequences, the jury might have been left 

with a different impression about whether Metts had an incentive 

to minimize his actions to avoid punishment. The ICA’s reliance 

on evidence that did not disclose the source of Metts’ bias or 

motive was therefore error. See Brown, 125 Hawaii at 61-62, 446 

P.3d at 978-79 (“Giving a defendant ‘considerable latitude’ 

during cross-examination of the complaining witness is not 

sufficient if the defendant is deprived of an opportunity to 

present evidence about the source of the complaining witness’s 

potential bias or motive.” (brackets omitted) (quoting Acacio, 

140 Hawaii at 101, 398 P.3d at 690)).

The ICA also concluded that because Metts was no 

longer in the military at the time of trial, any motive or bias 

he may have had at the time of the incident was no longer at 

issue. However, any motive to fabricate or exaggerate 

statements that Metts may have had at the time of the incident 

is clearly relevant to the veracity of statements he made at 

that time, as is an intent or natural inclination to provide 

trial testimony consistent with his prior statements although he 

was no longer serving in the military. 
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Accordingly, the circuit court erred in precluding the 

defense from asking Metts about his knowledge of the code of 

conduct regarding fighting and the potential consequences that a 

marine would be subject to for violation of its provisions. 

Because Miranda was not given an opportunity to present evidence 

about the source of Metts’ potential bias or motive, Miranda was 

not afforded “the threshold level of inquiry required under the 

confrontation clause” that would have provided the jury with 

sufficient information from which to make an informed decision

of Metts’ “‘motives and bias’ as to [his] testimony.” Brown,

145 Hawaii at 62, 446 P.3d at 979. Thus, Miranda’s right to 

confront adverse witnesses to show bias, interest, or motive 

under article I, section 14 of the Hawai‘i Constitution was 

violated, and the ICA erred in affirming the circuit court’s 

ruling on this issue.

10

2. The Error Was Not Harmless Beyond a Reasonable Doubt.

The denial of a defendant’s constitutional right to 

impeach the credibility of a witness is subject to harmless 

error review. Acacio, 140 Hawaii at 102, 398 P.3d at 691. “In 

 

10 In light of our resolution, we do not address the circuit court’s 

restriction of cross-examination regarding provisions in the code of conduct 

as to drinking. Additionally, because we conclude that Miranda was not 

provided the threshold level of inquiry required under the confrontation 

clause, no further inquiry is required regarding application of HRE Rule 403. 

Acacio, 140 Hawaii at 101 n.3, 398 P.3d at 690 n.3 (noting that this step in 

the analysis is not necessary when the threshold level of inquiry under the 

confrontation clause is not met).
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applying the harmless beyond a reasonable doubt standard the 

court is required to examine the record and determine whether 

there is a reasonable possibility that the error complained of 

might have contributed to the conviction.” Id. (quoting State 

v. Pond, 118 Hawaii 452, 461, 193 P.3d 368, 377 (2008)). 

Several factors may be considered in determining whether a 

violation of a defendant’s constitutional right to impeach was 

harmless, including: “the importance of the witness’ testimony 

in the prosecution’s case, whether the testimony was cumulative, 

the presence or absence of evidence corroborating or 

contradicting the testimony of the witness on material points, 

the extent of cross-examination otherwise permitted, and, of 

course, the overall strength of the prosecution’s case.” Id.

(quoting Levell, 128 Hawaii at 42, 282 P.3d at 584).

Metts testified that the incident was instigated by 

Miranda’s group, the group was making derogatory arguments 

toward them, and he did not recall shoving anyone. Miranda 

stated that Metts and Smith engaged his group first, Metts was 

making threatening remarks, and he hit Metts in self-defense. 

Metts’ testimony therefore stood in direct conflict with 

Miranda’s explanation that he acted in self-defense. 

While two other witnesses presented testimony of what 

happened during and after the incident, neither witness provided 
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evidence as to how the altercation was initiated. Wight stated 

that he became aware of the incident when he heard yelling and 

that he witnessed the punch soon after he turned around from 

about 50 feet away. Officer Gazelle testified that he did not 

know how the argument began and did not recall seeing a shoulder 

bump in the video. The officer had only seen the video once, 

two years prior, and did not take any notes while watching the 

video. Additionally, there were several conflicting accounts as 

to the number of punches thrown, the types of punches thrown, 

the persons who threw the punches, and the number of times Metts 

was hit.11 As such, Metts’ account of how the incident began and 

unfolded was crucial to rebutting Miranda’s self-defense 

testimony, and the case essentially turned on the credibility of 

Metts and Miranda. 

Because the jury’s perception of Metts’ credibility 

could have been affected by the knowledge of a potential bias or 

motive to fabricate or shape his testimony, there is a 

 

11 Metts testified that he was hit once and did not remember if he 

was hit twice. However, in a recorded interview with Det. Burger played for 

the jury, Metts stated he was hit twice. Miranda stated he had only hit 

Metts once and that he was aiming for Metts’ nose. Dr. Beckham testified 

that Metts said he had been hit twice and that Metts had suffered fractures 

to his jaw and nose, which could be consistent with being hit once or more 

than once. Wight testified that he saw Miranda “uppercut” Metts once and 

that Miranda cocked back his fist as if he were going to strike Metts once 

more, but he did not punch Metts again. Officer Gazelle stated that the 

video showed Metts getting punched at least two times and Smith getting 

punched at least once and that he did not remember whether Rodriguez also 

threw any punches, although he acknowledged that his report stated he “took a 

screenshot depicting the moment before Rodrigues punched Metts face.” 
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reasonable possibility that the circuit court’s error might have 

contributed to Miranda’s conviction. The error was therefore 

not harmless beyond a reasonable doubt. 

B. The Circuit Court Erred in Determining that Miranda “Opened 

the Door” to Testimony about the Contents of the Surveillance 

Video.

12

Miranda argues that the circuit court erred in finding 

that the introduction of the photograph “opened the door” to 

Officer Gazelle’s testimony regarding the surveillance video. 

This court has stated that the doctrine of “opening 

the door” is essentially a rule of expanded relevancy.13 State 

v. Lavoie, 145 Hawai‘i 409, 422, 453 P.3d 229, 242 (2019)

(quoting State v. James, 677 A.2d 734, 742 (N.J. 1996)). 

Pursuant to this doctrine, when one party presents inadmissible 

evidence to the jury, the opposing party is permitted to adduce 

pertinent evidence that would otherwise be inadmissible in order 

to rebut the improperly introduced evidence. Id. The extent of 

this doctrine is limited, and it does not allow a party to 

 

12 Although we conclude that the violation of Miranda’s right to 

cross-examine the witness denied him a fair trial, we consider the admission 

of the testimony about the contents of the video to address the ICA’s 

analysis and to provide guidance in the event the issue arises in subsequent 

proceedings. 

13 This rule has also been referred to as the doctrine of “curative 

admissibility” or “fighting fire with fire.” State v. Fukusaku, 85 Hawaii

462, 497, 946 P.2d 32, 67 (1997). This court has not determined whether to 

adopt the doctrine. State v. Lavoie, 145 Hawaii 409, 424, 453 P.3d 229, 244 

(2019) (“[E]ven if we were to adopt the doctrine of curative admissibility, 

it would not be applicable to the present case.” (quoting Fukusaku, 85 Hawaii 

at 497, 946 P.2d at 67)). 
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adduce inadmissible evidence for the purpose of rebutting 

inferences raised by the introduction of admissible evidence. 

Id. at 422-23, 453 P.3d at 242-43 (“Admissible evidence 

therefore does not ‘open the door’ to otherwise inadmissible 

evidence.” (citing State v. Middleton, 998 S.W.2d 520, 528 (Mo. 

1999))); State v. Fukusaku, 85 Hawaii 462, 497, 946 P.2d 32, 67 

(1997) (holding that defense counsel did not “open the door” to 

the introduction of inadmissible evidence by eliciting 

admissible evidence). 

In this case, defense counsel sought to admit the 

photograph Officer Gazelle took of the security video into 

evidence. As an offer of proof, counsel stated that the picture 

was an accurate depiction of the sidewalk where the altercation 

occurred on the night of the incident. The State maintained 

that the introduction of this picture would open the door to 

testimony as to the rest of the video but did not dispute that 

the picture accurately depicted the scene, and Miranda testified 

that the picture was a fair and accurate representation of the 

scene. It is well-settled that a photograph of the scene should 

be admitted so long as a witness who is familiar with the scene 

and competent to testify verifies the photograph as an accurate 

representation of the scene at the time in question. Territory 

v. Hays, 43 Haw. 58, 65 (Haw. Terr. 1958); State v. Sequin, 73 

Haw. 331, 338, 832 P.2d 269, 273 (1992) (affirming trial court’s 
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exclusion of a photograph that did not accurately depict the 

relevant area). The photograph was thus admissible evidence of 

the appearance of the area where the altercation occurred on the 

night of the incident. Additionally, Officer Gazelle’s police 

report stated that the photograph depicted the moment before 

Rodriguez punched Metts’ face, and its admissibility was not 

disputed at trial. Because Miranda was not attempting to 

introduce inadmissible evidence but instead admissible 

photographic evidence of the scene, the “opening the door” 

doctrine is not applicable.14 

It is noted that the prosecutor and the court appeared 

to be concerned that the photograph would be misleading to the 

jury as it only represented a single snapshot of the entire 

incident and Miranda was not shown in the photograph. The 

concerns of the prosecutor and the court could have been 

addressed by providing a cautionary instruction. See, e.g., 

Hawaii Standard Jury Instruction Criminal 2.01 Cautionary 

Instruction--Recess (“[K]eep an open mind until all the evidence 

has been presented, the Court has instructed you on the law that 

applies in this case and final arguments have been given.”); 

 

14 Because we find that the opening the door doctrine is 

inapplicable in this case, we do not reach the issue of whether this court 

should adopt the doctrine. See Lavoie, 145 Hawaii at 424, 453 P.3d at 244; 

Fukusaku, 85 Hawaii at 497, 946 P.2d at 67.
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2.04 Cautionary Instruction During Trial Regarding Transcript of 

a Recording. The prosecutor could have requested and the court 

could have fashioned a cautionary instruction that, for example,

informed the jury that the photograph depicted a single snapshot 

of the entire incident and the jury must consider the weight to 

be given to the photograph in light of all the other evidence 

that was admitted for its consideration.

While we conclude that defense counsel did not open 

the door to Officer Gazelle’s testimony regarding the 

surveillance video, the State argues, and the ICA appears to 

have concluded, that the evidence was nevertheless admissible 

under HRE Rule 1004 (2016). Under HRE Rule 1004(1), “The 

original or a duplicate is not required, and other evidence of 

the contents of a writing, recording, or photograph is 

admissible if . . . . [a]ll originals are lost or have been 

destroyed, unless the proponent lost or destroyed them in bad 

faith.” We have previously held that testimony can serve as a 

duplicate of an original under HRE Rule 1004. State v. 

Espiritu, 117 Hawaii 127, 135, 176 P.3d 885, 893 (2008). Here, 

Officer Gazelle and Det. Burger testified that they attempted to 

get a copy of the surveillance video but were unsuccessful, and 

there was no evidence that the surveillance video was destroyed 

in bad faith. Additionally, Officer Gazelle’s testimony as to 

what he viewed in the video was other evidence of the contents 
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of a recording. See Espiritu, 117 Hawaii at 135, 176 P.3d at 

893 (stating testimony about the contents of a destroyed text 

message was admissible under HRE Rule 1004 as other evidence). 

The government accordingly satisfied the criteria for admission 

of the testimony under HRE Rule 1004. 

But because the circuit court allowed Officer Gazelle 

to testify regarding the contents of the video based on its 

ruling that the defense had opened the door to this testimony, 

it appears that the circuit court did not consider and did not 

make any determination on the record as to whether the evidence 

should have been excluded under HRE Rule 403 (2016). HRE Rule 

403 “applies to all evidence.” State v. Plichta, 116 Hawaii

200, 231 n.15, 172 P.3d 512, 543 n.15 (2007) (Acoba, J., 

dissenting); United States v. Chapman, 765 F.3d 720, 726 n.1 

(7th Cir. 2014) (“[Federal Rule of Evidence (FRE)] Rule 403

applies to all evidence[.]”); HRE Rule 403. The rule itself 

provides that otherwise admissible 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. 

Here, one critical determination in the admission of the 

testimony of the contents of the video was whether the probative 
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value of the evidence was substantively outweighed by its danger 

of unfair prejudice to Miranda.15

Officer Gazelle testified about the contents of the 

four-minute video that he viewed once two years earlier. The 

officer testified that he was rushed when he was watching the 

video and was not in control of the rewinding, fast-forwarding, 

pausing, or stopping of the video while he watched. Officer 

Gazelle’s testimony was the only evidence of the contents of the 

video besides the single photograph of the video taken by the 

officer. While Officer Gazelle’s testimony regarding his 

recollection of the video clearly has probative value, it served 

as essentially an eyewitness account by a law enforcement 

officer of the entirety of the incident, potentially raising 

concerns that the evidence would be unfairly prejudicial.

This concern is compounded by the fact that Miranda 

appeared to have been hampered in cross-examining the officer 

about the video’s contents. There is no contention that defense 

counsel had viewed the video prior to it being destroyed, and 

counsel was without any other effective means--such as 

 

15 “Unfair prejudice . . . means an undue tendency to suggest 

decision on an improper basis, commonly, though not necessarily, an emotional 

one.” HRE Rule 403 cmt. (quoting Advisory Committee’s Note to Federal Rules 

of Evidence 403); see also State v. Rosario, 966 A.2d 249, 259 (Conn. App. 

Ct. 2009) (“Unfair prejudice exists when the evidence tends to have some 

adverse effect upon [the party against whom the evidence is offered] beyond 

tending to prove the fact or issue that justified its admission into 

evidence.” (alteration in original)).
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contemporaneous notes or a detailed report--to determine if 

there were inconsistencies with the officer’s recollection and 

the video or to cross-examine the officer to show that he might 

have misremembered, embellished, or omitted facts in recounting 

the video’s contents.16 

On remand, the court should evaluate the admissibility 

of the officer’s testimony of the video’s contents under HRE 

Rule 403.

17 

 

16 See, e.g., United States v. Brown, No. 08-0098, 2009 WL 2338112, 

at *2 (W.D. Pa. July 29, 2009) (reasoning that it would be “extremely 

difficult” for defense counsel to cross-examine the witnesses about a video 

viewed four years prior because “counsel [had] not viewed the video and [did] 

not have any other objective account of the content of the tape with which to 

compare” and concluding that the probative value of the evidence was 

outweighed by the danger of unfair prejudice and other FRE 403 

considerations); United States v. Ortiz, No. 11-251-08, 2013 WL 101727, at *5 

(E.D. Pa. Jan. 7, 2013) (holding that it was not unfairly prejudicial for two 

witnesses to testify about their recollection of a deleted video recording 

because the witnesses had created contemporaneous notes and reports at the 

time they watched the video recording, allowing defense counsel to 

effectively cross-examine the witnesses); Olabisi v. Farmington Ave. Prof’l 

Bldg., LLC, No. CV095028880S, 2012 WL 1139190, at *4 (Conn. Super. Ct. Mar. 

19, 2012) (“[T]he witness had viewed the videotape . . . over four years 

before the trial. It would have been extremely difficult for the plaintiff’s 

attorney to cross-examine her regarding her testimony about what was on the 

videotape when he had no opportunity to view it and no means to verify that 

the tape was in truth a tape of the plaintiff’s activities on the day of the 

incident.”).

17 Miranda also argues that the ICA erred in holding that the loss 

of the video did not violate his right to a fair trial. At trial, Officer 

Gazelle and Det. Burger testified that they attempted to retrieve the video 

but were unsuccessful, and the video was ultimately written over. While 

Miranda cites a declaration by Hirata submitted post trial seeming to 

contradict these statements, Hirata did not testify at the pre-trial hearing 

on the motion to dismiss, during trial, or during post-trial motions. The 

record therefore does not establish that the State’s delay caused the loss of 

the evidence. See State v. Dunphy, 71 Haw. 537, 543, 797 P.2d 1312, 1315-16 

(1990) (holding that the prejudice to the defendant’s defense was caused by 

the loss of tapes due to the police department’s unreasonable delay). The 

issue may be subject to further hearing on remand. Further, we conclude that 

Hirata’s declaration did not provide “new evidence” such that the circuit 

(continued . . .)
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V. CONCLUSION

Based on the foregoing, we vacate the ICA’s judgment 

on appeal and the circuit court judgment and remand the case to 

the circuit court for further proceedings consistent with this 

opinion.

 

(. . . continued)

court erred in denying his motion to set aside the verdict and enter a 

judgment of acquittal. 

In light of our disposition, it is unnecessary to address whether 

there was sufficient evidence to support an accomplice instruction and 

whether the accomplice instruction was consistent with our law on accomplice 

liability. We also reject Miranda’s argument subsumed within his questions 

presented in his application for writ of certiorari that there was 

insufficient evidence to support his conviction based upon our review of the 

evidentiary record viewed in the most favorable light to the State. See

State v. Williams, 146 Hawaii 62, 76, 456 P.3d 135, 149 (2020) (“The test on 

appeal is not whether guilt is established beyond a reasonable doubt, but 

whether there was substantial evidence to support the conclusion of the trier 

of fact.” (quoting State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 

(1998))).

Dwight C.H. Lum

for petitioner

Chad M. Kumagai

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson