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NO. CAAP-20-0000033

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

BRYAN MEYER, Petitioner-Appellant,

v.

STATE OF HAWAI#I, Respondent-Appellee,

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(CASE NO. 1DTA-16-03836; 1SD191000004)

MEMORANDUM OPINION

(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Petitioner-Appellant Bryan Meyer (Meyer) appeals from

the Findings of Fact (FOFs), Conclusions of Law (COLs), and Order

Denying [Hawai#i Rules of Penal Procedure (HRPP)] Rule 40

Petition for Post Conviction Relief (Order Denying Rule 40

Petition), filed January 3, 2020 by the District Court of the

First Circuit (District Court).1

On appeal, Meyer contends the District Court erred in

concluding: (1) that his due process rights were not violated by

Respondent-Appellee State of Hawai#i's (State) failure to produce

information favorable to him in violation of Brady v. Maryland,

373 U.S. 83 (1963),2 and (2) that he was not denied effective

assistance of counsel. Meyer requests that the Order Denying

1 The Honorable Clarence A. Pacarro presided in the Rule 40 postconviction proceedings.

2 In Brady, the United States Supreme Court held that under the due

process clause, the prosecution was required to disclose evidence favorable to

the accused where the evidence is material to guilt or to punishment, and that

failure to disclose would deprive the accused of a fair trial. 373 U.S. at

87-88.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000033

23-FEB-2023

07:57 AM

Dkt. 57 MO
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Rule 40 Petition and his conviction be vacated, and this matter

be remanded for a new trial. 

We hold that the State's failure to disclose the report

at issue, which consisted of material impeachment evidence under

Brady, violated due process, and the Rule 40 Petition should have

been granted. We thus vacate and remand.

I. BACKGROUND

The pertinent background, some of which is derived from 

the uncontested FOFs3 in the Order Denying Rule 40 Petition, is

as follows:

OVUII trial

On November 1, 2016, Meyer was charged, via Complaint,

with Operating a Vehicle Under the Influence of an Intoxicant

(OVUII) in violation of Hawaii Revised Statutes (HRS) 

§ 291E-61(a)(1). FOFs 1-2. At trial,4 two Honolulu Police

Department (HPD) officers testified as follows: Officer Russell

Maeshiro (Officer Maeshiro) testified as to observing Meyer veer

out of lane three times and indicia of alcohol consumption;

Officer Lordy Cullen (Officer Cullen) testified as to indicia of

Meyer's alcohol consumption, to the instruction and demonstration

of the standardized field sobriety test (SFST), and as to Meyer's

performance on the SFST. FOF 4.5 Meyer testified. FOF 5.

After closing arguments, the trial court made the

following findings:6

THE COURT: . . . . So as has already been discussed at

length, there was almost no testimony inconsistent between

3 Unchallenged FOFs are binding on the parties and on appeal. 

State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435 (2019) (quoting

Kelly v. 1250 Oceanside Partners, 111 Hawai#i 205, 227, 140 P.3d 985, 1007

(2006)).

4 The Honorable James H. Ashford presided over the underlying OVUII

proceedings. For clarity, the proceedings before Judge Ashford are referred

to as "trial court," while the proceedings before Judge Pacarro are referred

to as "District Court."

5 The Order Denying Rule 40 Petition contains typographical error

consisting of two separate FOFs numbered as "4."

6 The transcript of the March 16, 2017 trial was supplied as an

exhibit to Meyer's Rule 40 Petition.

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Officer Maeshiro and defendant. So I do take as credible

and accurate everything that Officer Maeshiro testified to.

. . . .

So that takes us away from Maeshiro's testimony into

–- into Officer Cullen and the defendant's testimony

regarding the field sobriety test. . . .

. . . . 

Candidly I'm not saying that Mr. Meyer is lying, but I'm

very concerned about his ability to accurately perceive and

accurately recall what transpired.

So on balance I accept Officer Cullen's testimony. And to

the extent it –- defendant's testimony is inconsistent on these

points, I reject the defendant's testimony.

. . . . 

So, Mr. Meyer, I think you understand this, but to be

perfectly clear, you're convicted. I buy the State's–- I

accept as true what the officers testified to.

On March 16, 2017, Meyer was convicted as charged. FOF 6. 

OVUII appeal

Meyer appealed his judgment of conviction and sentence

to this court on May 16, 2017. FOF 7. On February 19, 2019, we

affirmed the judgment "without prejudice to any subsequent

petition under [HRPP] Rule 40, to the District Court addressing

the ineffective assistance of counsel claim raised herein." 

State v. Meyer, No. CAAP-17-0000420, 2019 WL 181144, at *5 

(App. Jan. 14, 2019) (SDO).

HRPP Rule 40

On May 16, 2019, Meyer filed a Rule 40 Petition for

Post Conviction Relief (Rule 40 Petition) with the District

Court. In his Rule 40 Petition, Meyer argued that the State was

in possession of a seventeen-page report summarizing an internal

investigation of Officer Cullen (Cullen Report)7 for Unauthorized

Computer Access in the First Degree (Unauthorized Computer Access

7 The Cullen Report detailed allegations that Officer Cullen used

another officer's computer login credentials to request special duty

assignments. The Honolulu Department of the Prosecuting Attorney declined to

prosecute the case.

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First)8 that occurred in 2010, and that the State failed to

disclose the report to Meyer's trial counsel9 during the pendency

of Meyer's OVUII trial. Meyer argued that the State's

withholding of the report was a violation of the rule in Brady,10

as "this information would have been favorable to [Meyer] giving

[Meyer] the opportunity to cross examine [Officer] Cullen on the

favorable materials pursuant to Hawai#i Rules of Evidence [(HRE)]

Rule 608(b) . . . ."11 Meyer's Rule 40 Petition also included an

8 A person commits Unauthorized Computer Access First under HRS §

708-895.5 (2001) if:

the person knowingly accesses a computer, computer system,

or computer network without authorization and thereby

obtains information, and:

(a) The offense was committed for the

purpose of commercial or private financial

gain;

(b) The offense was committed in

furtherance of any other crime;

(c) The value of the information obtained

exceeds $5,000; or

(d) The information has been determined by

statute or rule of court to require

protection against unauthorized

disclosure.

(2) Unauthorized computer access in the first degree is a

class B felony. 

9 Meyer was represented by new counsel (Appellate Counsel) for the

appeal in CAAP-17-0000420, during the Rule 40 proceeding, and in the instant

appeal. 

10 Hawai#i has incorporated the Brady rule into Hawai#i "due process

jurisprudence": "due process requires that the prosecution disclose evidence

favorable to the accused that, if suppressed, would deprive the defendant of a

fair trial." Birano v. State, 143 Hawai#i 163, 181, 426 P.3d 387, 405 (2018)

(internal quotation marks omitted) (quoting State v. Matafeo, 71 Haw. 183,

185-86, 787 P.2d 671, 672 (1990)).

11 HRE Rule 608(b) permits the credibility of witnesses to be

attacked by specific instances of conduct probative of untruthfulness. The

rule provides in pertinent part:

(b) Specific instances of conduct. Specific instances of

the conduct of a witness, for the purpose of attacking the

witness' credibility, if probative of untruthfulness, may be

inquired into on cross-examination of the witness and, in

the discretion of the court, may be proved by extrinsic

evidence. . . .

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ineffective assistance of counsel claim. According to Meyer,

upon the filing of the Rule 40 Petition, the State had not yet

turned over the Cullen Report to Meyer's Appellate Counsel.12

Following a subpoena duces tecum filed by Meyer, the

State submitted to the District Court the records regarding

Officer Cullen for in camera review. The District Court held a

hearing on the Rule 40 Petition on November 18, 2019. At the

hearing, the District Court asked the State whether the Cullen

Report was turned over to Meyer because it was potentially Brady

material:

THE COURT: I did have a question. I forgot 

to bring this up since [Appellate Counsel] made this 

representation that after this, those 17 pages were 

disclosed based on this prosecutor's understanding they 

were Brady material. Do you have a position on that? 

Were they turned over because your office considers that 

Brady material?

 [PROSECUTOR]: So I -- I'll note that the statute 

of limitations didn't expire for the particular 

investigate -- 

THE COURT: And I saw that -- 

[PROSECUTOR]: -- (indiscernible) the facts -- 

THE COURT: -- in your argument but.

 [PROSECUTOR]: Right, up until 2018. And so I 

think there, you know, once we're disclosing it, there's 

less of a question about what -- I think before 2018, it's 

quite clear that it may not have even come in, and there's 

a -- there's a serious barrier to admissibility. And the 

test that our court uses in terms of evaluating Brady 

material is that it's got to be at least admissible 

because it's got to be relevant. So if you don't have 

that baseline of admissibility, because the defendant 

would be able to have an absolute privilege, I think that 

changes in 2018, becomes maybe a question. As I said, 

it's never really been litigated whether or not this 

particular charge is, and I think just to be safe, we're 

releasing it. But I think prior to 2018, there's a strong 

argument that with the statute of limitations still open, 

that material is not going to be admissible because the 

defendant could just take a Fifth Amendment privilege. 

THE COURT: But -- 

12 In his Declaration included with the Rule 40 Petition, Meyer's

Appellate Counsel stated that he received the Cullen Report from the State as

part of initial discovery disclosures during Appellate Counsel's

representation of a different client in a separate, unrelated criminal

proceeding. 

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[APPELLATE COUNSEL]: May I -- 

THE COURT: -- but you're not saying you 

accept this Brady material? You're just saying as a 

matter of caution, you're turning it over because the 

statute has run? 

[PROSECUTOR]: No, no, no, because the statute 

has run. 

THE COURT: That's why you're turning it 

over. That's -- 

[PROSECUTOR]: Turning it over. 

THE COURT: Yeah. 

[PROSECUTOR]: And in this case, yeah, as a 

matter of caution because it hasn't been litigated yet.

It is not clear from the above exchange whether the State agreed

that the Cullen Report was Brady material that should have been

disclosed.

The District Court issued its Order Denying Rule 40

Petition on January 3, 2020, from which Meyer timely appealed. 

II. STANDARDS OF REVIEW

"We consider a court's conclusions of law regarding a

petition for post-conviction relief de novo[.]" Grindling v.

State, 144 Hawai#i 444, 449, 445 P.3d 25, 30 (2019) (citing 

Fragiao v. State, 95 Hawai#i 9, 15, 18 P.3d 871, 877 (2001)). 

"A court's findings of fact in connection with a petition for

post-conviction relief are reviewable under the clearly erroneous

standard." Id. (citing Wilton v. State, 116 Hawai#i 106, 110

n.7, 170 P.3d 357, 361 n.7 (2007)).

III. DISCUSSION

Meyer contends that his due process rights were

violated by the failure of the State to disclose the Cullen

Report before his OVUII trial. Meyer argues that the District

Court erred in: (1) its COL 5, and that the District Court should

have found that Meyer was "entitled to discover the past instance

which may permit . . . Meyer to develop the bias, interest, or

motive as well as reputation for truthfulness on crossexamination"; (2) its COL 4, and that the District Court should

have found that the State should have disclosed the Cullen Report

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even if the materials would have been deemed inadmissible for

purposes of impeachment; and (3) erred in its COL 2, which

applies an incorrect "'harmless error' type analysis."13

The Cullen Report contained admissible, material

impeachment evidence

Meyer argues that the Cullen Report should have at

least been admissible at trial under HRE Rule 608(b).14 This

argument has merit. 

13 The challenged COLs state:

2. The Hawai#i State Constitution requires the

proponent of a Brady claim to show that "the suppressed

evidence would create a reasonable doubt about the

Appellant's guilt that would not otherwise exist." 

State v. Jenkins, 93 Hawai#i 87, 104, 997 P.2d 13, 30 (2000);

State v. Fukusaku, 85 Hawai#i 462, 479, 946 P.2d 32, 49 (1997).

. . . .

4. The subpoenaed documents do not reflect that the

alleged conduct of Officer Cullen affected his credibility

as a witness in Petitioner's unrelated OVUII trial. See

State v. Pacheco, 96 Hawai#i 83, 99-l00, 26 P.3d 572, 588-89

(2001) (declining to treat shoplifting from a church as

conduct relevant to or probative of defendant's veracity as

a witness); State v. Pudiquet, 82 Hawai#i 419, 427, 922 P.2d

1032, 1040 (declining to admit a nine-year-old theft

conviction as too collateral, too remote, and irrelevant to

dishonesty).

5. The subpoenaed documents do not demonstrate bias,

self-interest, or any other factor that would undermine the

reliability of Officer Cullen's testimony against

Petitioner. The documents do not show Officer Cullen had any

personal stake in Petitioner's OVUII trial or that the

declined case against him affected the reliability of his

testimony. Cf. Birano v. State, 143 Hawai#i 163, l9l, 426

P.3d 387, 415 (2018) (finding relevant to a witness's

credibility the possibility of a favorable sentencing

recommendation from the State). See also Boyd v. State, No.

CAAP-18-0000056, 2019 WL 3082992, at *5 (App. July 15, 2019)

(SDO) (declining to treat four-year-old prosecution against

officer for shoplifting as probative of his SFST testimony

in unrelated OVUII trial), cert. denied, SCWC-18-0000056,

2019 WL 6492519 (Dec. 3, 2019).

14 Meyer points to the State's statement at the Rule 40 hearing that

the Cullen Report was not released at the time of Meyer's OVUII trial because

the statute of limitations on the alleged claim against Officer Cullen had not

yet expired. Meyer argues that even if Officer Cullen pleaded the Fifth

Amendment while testifying during trial, the evidence "should be held

admissible at least until the witness denied the conduct." The State did not

address this argument in its Answering Brief. 

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Under HRE Rule 608(b), the credibility of a witness may

be attacked using "[s]pecific instances of conduct" that are

"probative of untruthfulness." HRE Rule 608(b); see also State

v. Su, 147 Hawai#i 272, 282, 465 P.3d 719, 729 (2020). The types

of conduct deemed admissible under HRE Rule 608(b) are "conduct

regarding lies and falsifications." Su, 147 Hawai#i at 282, 465

P.3d at 729 (citing Addison M. Bowman, Hawaii Rules of Evidence

Manual § 608-2[1][B] at 6-42-43 (2018–2019 ed.)). In Su, the

supreme court clarified that the admissibility of evidence under

HRE Rule 608(b) involves a two-step inquiry:

(1) whether the specific conduct evidence proffered for the

purpose of attacking the witness's credibility is probative

of untruthfulness, and, if so, (2) whether the probative

value of the evidence of the specific conduct 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 pursuant to HRE Rule

403.

Id. at 283, 465 P.3d at 730. "[U]nder the first step, a [nondefendant] witness may generally be cross-examined about specific

instances of conduct probative to credibility, if probative of

untruthfulness." Id. (footnote omitted). If the witness denies

the conduct during cross-examination, then "the court has

discretion to permit or exclude extrinsic evidence of the

misbehavior" subject to the HRE Rule 403 balancing test. Id. at

284, 465 P.3d at 731.

Here, based on our review of the Cullen Report, the

allegations against the officer contained in the report were

probative of untruthfulness. The evidence qualified for

admissibility for purposes of impeachment under HRE Rule 608(b). 

See Birano, 143 Hawai#i at 183 n.35, 426 P.3d at 407 n.35.

A "[v]iolation of the constitutional right to confront

adverse witnesses is subject to the harmless beyond a reasonable

doubt standard." Id. at 190, 426 P.3d at 414 (quoting State v.

Balisbisana, 83 Hawai#i 109, 113-14, 924 P.2d 1215, 1219-20

(1996)). The failure of the State to disclose impeachment

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evidence warrants a new trial if the evidence is material either

to guilt or punishment, and when the reliability of a witness may

be determinative of guilt or innocence. State v. Alkire, 148

Hawai#i 73, 88, 468 P.3d 87, 102 (2020). 

Here, Officer Cullen's testimony was material to

Meyer's conviction. The trial court stated, "I buy the State's–-

I accept as true what the officers testified to." The trial

court concluded that the inconsistencies between Meyer's

testimony and Officer Cullen's testimony weighed in favor of

Officer Cullen being more credible. Thus, the failure to

disclose was material and was not harmless beyond a reasonable

doubt where the outcome of Meyer's trial turned on the

credibility of Meyer and Officer Cullen. See Su, 147 Hawai#i at

285, 465 P.3d at 732 (citing State v. Pond, 118 Hawai#i 452, 469,

193 P.3d 368, 385 (2008)); Birano, 143 Hawai#i at 190, 426 P.3d

at 414. 

The State had a duty to disclose the Cullen Report

Meyer argues that he did not receive a fair trial

because the Cullen Report was "necessary to bolster his own

credibility over that of Officer Cullen," especially because the

trial court found Officer Cullen's testimony more credible.

Meyer argues that the Cullen Report should have been disclosed to

Meyer during his trial proceedings because the report was

indicative of Officer Cullen's fraudulent conduct; indicative of

Officer Cullen's motive, and would constitute evidence pertaining

to Office Cullen's "truthfulness, veracity, and/or credibility." 

Meyer's argument regarding Officer Cullen's credibility has

merit. 

"Under Brady, the government must disclose evidence

favorable to the defense 'where the evidence is material either

to guilt or to punishment.'" Alkire, 148 Hawai#i at 88, 468 P.3d

at 102 (brackets omitted) (quoting Kyles v. Whitley, 514 U.S.

419, 432 (1995)). "'Material' evidence includes that pertaining

to witness credibility, as when the 'reliability of a given

witness may well be determinative of guilt or innocence,' the

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nondisclosure of evidence affecting that witness's credibility is

material." Id. at 89, 468 P.3d at 103 (quoting Giglio v. United

States, 405 U.S. 150, 154 (1972)). "[F]avorable evidence is

material, and constitutional error results from its suppression

by the government, if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different." Id. (internal quotation

marks omitted) (quoting Kyles, 514 U.S. at 433). Impeachment

evidence falls under Brady because impeachment evidence is

"'evidence favorable to an accused' . . . [and] if disclosed and

used effectively, it may make the difference between conviction

and acquittal." U.S. v. Bagley, 473 U.S. 667, 676 (1985)

(citation omitted). 

"[C]entral to the protections of due process is the

right to be accorded a meaningful opportunity to present a

complete defense." Birano, 143 Hawai#i at 181, 426 P.3d at 405

(quoting State v. Tetu, 139 Hawai#i 207, 219, 386 P.3d 844, 856

(2016)). Our supreme court recognized that "the prosecution has

a constitutional obligation to disclose evidence that is material

to the guilt or punishment of the defendant." Id. at 182, 

426 P.3d at 406 (quoting Matafeo, 71 Haw. at 185, 787 P.2d at

672). "The duty to disclose evidence that is favorable to the

accused includes evidence that may be used to impeach the

government's witnesses by showing bias, self-interest, or other

factors that might undermine the reliability of the witness's

testimony." Id. (citing Giglio, 405 U.S. at 154). In Birano,

our supreme court recognized that the duty to disclose is

triggered when "the government possesses information that may

have a potential negative impact on a key witness's credibility .

. . ." Id. at 183, 426 P.3d at 407. The evidence, however, must

be "admissible evidence affecting witness credibility[.]" Id. at

183 n.35, 426 P.3d at 407 n.35 (explaining that examples of

evidence affecting witness credibility that may trigger the duty

to disclose as including "a witness's ulterior motive for

testifying, a relevant sensory or mental defect, inconsistent

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past statements, or previous acts indicating dishonesty.")

(citing Milke v. Ryan, 711 F.3d 998, 1001 (9th Cir. 2013); United

States v. Kohring, 637 F.3d 895, 907 (9th Cir. 2011)). 

Further, "[t]he duty to disclose material impeachment

evidence is compelled not only by due process, but also the

constitutional right to confrontation." Birano, 143 Hawai#i at

183, 426 P.3d at 407. A defendant's right to cross-examination

of the state's witnesses to demonstrate bias or motive is

protected by the sixth amendment of the United States

Constitution and by Article I, section 14 of the Hawai#i

Constitution. Id.

Discovery obligations for non-felony and criminal

traffic offenses, such as OVUII, are governed by HRPP Rule 16(d),

which requires that, "[u]pon a showing of materiality and if the

request is reasonable, the court in its discretion may require

disclosure as provided for in this Rule 16 in cases other than

those in which the defendant is charged with a felony, but not in

cases involving violations." HRPP Rule 16(d); see also Alkire,

148 Hawai#i at 89, 468 P.3d at 103 (citing State v. Lo, 116

Hawai#i 23, 26, 169 P.3d 975, 978 (2007)). However, "[i]n some

cases . . . due process will require the State to disclose

evidence beyond the disclosures required by the rules of penal

procedure." State v. Texeira, 147 Hawai#i 513, 528 n.24, 

465 P.3d 960, 975 n.24 (2020) (citing Tetu, 139 Hawai#i at 214,

386 P.3d at 851 ("[T]he HRPP Rule 16 discovery right does not

purport to set an outer limit on the court's power to ensure a

defendant's constitutional rights.")).

Here, the Cullen Report contained potentially

admissible impeachment material that should have been disclosed

to Meyer by the State. The trial court found Officer Cullen's

testimony to be more credible than Meyer's testimony. The State

was in possession of information that may have had a potential

negative impact on Officer Cullen's credibility. See Birano, 

143 Hawai#i at 182, 426 P.3d at 406. The State had a duty to

disclose the credibility evidence pertaining to Officer Cullen to

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allow Meyer the opportunity to present a meaningful defense and

to cross-examine. See id.; Alkire, 148 Hawai#i at 89, 468 P.3d

at 103. The District Court's conclusion in COL 4 that the Cullen

Report did not contain conduct that "affected [the officer's]

credibility as a witness," and thus not subject to disclosure as

Brady material was erroneous. See Grindling, 144 Hawai#i at 449,

445 P.3d at 30. The Rule 40 Petition should have been granted.

In light of the above, we need not address Meyer's

remaining contentions.

IV. CONCLUSION

For the foregoing reasons, we (1) vacate the Findings

of Fact, Conclusions of Law, and Order Denying Rule 40 Petition

for Post Conviction Relief, filed January 3, 2020 by the District

Court of the First Circuit; and (2) remand for entry of an order

granting the Rule 40 Petition filed on May 16, 2019 for the

reasons set forth in this Memorandum Opinion, vacating the

March 16, 2017 Judgment of Conviction and Sentence, and ordering

a new trial.

DATED: Honolulu, Hawai#i, February 23, 2023.

On the briefs:

Richard L. Holcomb,

(Holcomb Law, LLLC)

for Petitioner-Appellant

Stephen K. Tsushima,

Deputy Prosecuting Attorney

for Respondent-Appellee

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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