State v. KAEO-TOMASELI

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPOR'I`S AND PACIFIC REPORTER

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Plaintiff-Appellee, v. 22

sTATE oF HAwArI,

DIONE K. KAEO-TOMASELI, Defendant-Appellant

APPEAL FRoM THE cIRcUIT c0URT oF THE FIRsT cIRCUiT
(CRIMINAL No. 07-1-2163)

SUMMARY DISPOSITION ORDER

(By: Nakamura, Chief Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Dione K. Kaeo-Tomaselli (Kaeo-

Tomaselli) appeals the Circuit Court of the First Circuit's
Judgment of Conviction and Sentence entered on

(Circuit Court's)
2008, convicting her of Methamphetamine Trafficking

December l,
(HRS) § 7l2-

in the Second Degree under Hawafi Revised Statutes

1240.8 (supp. 2008).H

On appeal,
erred in denying her motion to dismiss because certain phone

records that were lost/misplaced by the State were so critical to

the defense as to make the trial fundamentally unfair without

Kaeo~Tomaselli contends the Circuit Court

them.
Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Kaeo-Tomaselli's point of error as follows:

In State v. Matafeo, 71 Haw. l83, 187, 787 P.2d 67l,

(l990), the Hawafi Supreme Court held that dismissal of

673
regardless of good or bad faith

criminal charges is appropriate,
by the police, when the State loses or destroys material evidence

that is "so critical to the defense as to make a criminal trial

U The Honorable Richard W. Pollack presided.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

fundamentally unfair without it.“ See also State v. Steger, 114
Hawai‘i 162, 153 P.:zd 230 (App. 2006>.

ln this case, the Circuit Court did not err in
concluding that the lost telephone records were not so critical
to the defense as to make a criminal trial fundamentally unfair.
There was no evidence or reasonable inference that the phone
records necessarily would have been favorable to the defense.
The Circuit Court emphasized that Kaeo-Tomaselli would not be
precluded from pursuing a relevant line of defense at trial in
the absence of the telephone records and Kaeo-Tomaselli had the
opportunity to extensively cross-examine the State's witnesses
regarding the telephone call that was alleged to have been made
and the absence of the telephone records to substantiate the
allegation. Also, the Circuit Court's instruction permitting the
jury to infer that the information about the telephone call would
be favorable to Kaeo~Tomaselli eliminated any substantial
prejudice flowing from the absence of the telephone records.
Applying the Matafeo standard to the record in this case, we
conclude that the absence of the phone records did not violate
Kaeo-Tomaselli's due process rights.

Accordingly we affirm the Circuit Court's December 1,
2008 Judgment of Conviction and Sentence.

DATED: Honolulu, Hawafi, March 19, 2010.

On the briefs: z 'M

Jon N. lkenaga Chief Judge
Deputy Public Defender

for Defendant-Appellant §§

Donn Fudo Associate Judg
Deputy Prosecuting Attorney '
for Plaintiff-Appellee

l
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