Chatman v. State

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JAN-2024
08:25 AM
Dkt. 101 MOT

NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and
CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

CAAP-XX-XXXXXXX
ANTHONY K. CHATMAN, Petitioner-Appellant, v.
STATE OF HAWAI‘I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR191000006)

and

CAAP-XX-XXXXXXX
STATE OF HAWAI‘I, Plaintiff-Appellee, v.
ANTHONY K. CHATMAN, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(FC-CR NO. 1FC021000011)

and

CAAP-XX-XXXXXXX
STATE OF HAWAI‘I, Plaintiff-Appellee, v.
ANTHONY K. CHATMAN, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR NO. 1PC021002353)
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MEMORANDUM OPINION
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

This consolidated appeal1 arises out of proceedings
conducted on remand following the Hawai‘i Supreme Court's 2019

Summary Disposition Order in State v. Chatman, No. SCWC-16-
0000429, 2019 WL 912118 (Haw. Feb. 22, 2019) (SDO) (2019 Chatman
Remand Order). The 2019 Chatman Remand Order ordered an
evidentiary hearing in the circuit court pursuant to Hawai‘i

Rules of Penal Procedure (HRPP) Rule 40(f), because Defendant-
Appellant Anthony K. Chatman (Chatman) "asserted a colorable
claim" that a "missing trial transcript" of the prosecution's
child abuse expert witness "prejudiced his appeal[.]" Id. at
*2. The circuit court issued its "Findings of Fact and
Conclusions of Law [(FOF/COL)] and Order Granting in Part and
Denying in Part Petitioner's Amended Petition for Post-
Conviction Relief, Filed April 9, 2021" (Rule 40 Order),
granting Chatman's petition for relief in part, finding Chatman
received ineffective assistance of counsel in his direct appeal,
and ordering a new appeal. The Rule 40 Order also vacated the
2004 judgments against Chatman in the two underlying criminal
cases, and re-entered both judgments on March 31, 2022, so
Chatman could "pursue new appeals" in those cases. In this
appeal, Chatman appeals from the (1) Rule 40 Order in CAAP-22-
0000315 (Rule 40 Appeal); (2) "Judgment of Guilty Conviction and
Sentence[,] Notice of Re-entry" (Re-entered Attempted Murder
Judgment) in CAAP-XX-XXXXXXX (Attempted Murder Appeal); and (3)
"Judgment of Guilty Conviction and Sentence[,] Notice of Re-
entry" (Re-entered Witness Offenses Judgment)2 in CAAP-XX-XXXXXXX

1 We consolidated CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX under CAAP-
XX-XXXXXXX by a December 28, 2022 order. [22-135 dkt. 75]
2 The 2022 Re-entered Witness Offenses Judgment reflects
convictions for Bribery of a Witness (Count 1), Intimidation of a Witness
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(Witness Offenses Appeal), all entered on March 31, 2022, by the
Circuit Court of the First Circuit.3
While Chatman raises multiple points of error (POEs)
in the three appeals,4 we confine our review to Chatman's main
contention that the Circuit Court erred in FOF/COLs 42, 44, and
45, by granting him a new appeal instead of a new trial, as it
is dispositive. We hold that the Rule 40 Order was erroneous in
part because the Circuit Court should have granted Chatman the
requested relief of a new trial in the attempted murder case,
rather than a new appeal. Under the unique circumstances of
this case, where the record reflects specific prejudice to
Chatman's ability to appeal due to the missing material trial
testimony of the State's child abuse expert, a new appeal on the
same incomplete record is an inadequate remedy.

(Count 2), and Extortion in the Second Degree (Count 3) in 1PC021002353.
Chatman's extortion conviction in Count 3, however, was vacated on Chatman's
2006 direct appeal due to merger. State v. Chatman, No. 26763, 2006 WL
2236740, at *35 (Haw. Aug. 3, 2006) (mem. op.) (2006 Chatman Opinion).
3 The Honorable Matthew J. Viola presided over the Rule 40 hearing,
entered the Rule 40 Order, and re-entered the judgments in the underlying
cases.
4 In the Rule 40 Appeal, CAAP-XX-XXXXXXX, Chatman: (1) challenges
FOFs 11, 23, 24, 42, 44, and 45 as erroneous; (2) contends that while the
Circuit Court "correctly" found Chatman's counsel was ineffective on direct
appeal for failing to raise the issue of the missing transcript, the Circuit
Court erred by ordering a new appeal based on the same, incomplete record;
and (3) contends that while the Circuit Court "correctly" found that the
missing 87 minutes of expert testimony were "material," the Circuit Court
erroneously ordered a new appeal rather than a new trial.

In both the Attempted Murder Appeal (CAAP-XX-XXXXXXX) and the
Witness Offenses Appeal (CAAP-XX-XXXXXXX), Chatman raises identical POEs that
the Circuit Court (1) erroneously denied Chatman's motion for a mistrial
regarding Plaintiff-Appellee State of Hawai‘i's (State) child abuse expert
Victoria Schneider M.D.'s (Dr. Schneider) testimony; (2) erroneously denied
Chatman's motion for mistrial due to prosecutorial misconduct; and that (3)
this court should grant Chatman a new trial due to the missing transcript of
Dr. Schneider's testimony. In the Attempted Murder Appeal only, Chatman
raises an additional POE, that the case should be dismissed based on State v.
Obrero, 151 Hawai‘i 472, 517 P.3d 755 (2022). We address Chatman's Obrero
argument infra, and do not address the remaining POEs in light of our
resolution.

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I. BACKGROUND
In the underlying criminal proceedings in FC-CR
No. 02-1-0011 (Attempted Murder Case) and Cr. No. 02-1-2353
(Witness Offenses Case), following a 2003 consolidated jury
trial, Chatman was convicted of Attempted Murder in the Second
Degree of his infant son in the Attempted Murder Case; and of
bribery, intimidation, and extortion of a witness in Counts 1,
2, and 3, against the mother of his infant son, in connection
with her testimony for the Attempted Murder Case. Chatman, 2006
WL 2236740, at *1-2. While Chatman's extortion conviction was
vacated in the 2006 Chatman Opinion on direct appeal, the
remaining convictions were affirmed. Id.
In the instant appeal, Chatman, self-represented,
filed his 2015 Motion for Correction or Modification of the
Record (Motion for Correction) arguing that the trial record was
missing Dr. Schneider's testimony on her slide show
presentation, and that Chatman was prejudiced by his "inability
to make substantive claims[ ] relating to Dr. Schneider's
Powerpoint presentation, in any future post-conviction or habeas
proceedings." Chatman, 2019 WL 912118, * at 2. The Circuit
Court denied the Motion for Correction without a hearing. Id.
Chatman appealed to this court in 2016; we affirmed in 2018; the
supreme court's 2019 Chatman Remand Order vacated in part,
concluding that:
Chatman has asserted a colorable claim that Dr. Schneider's
missing trial testimony may have specifically prejudiced
his appeal. On the issue of incomplete trial records, this
court has previously stated that "[t]he general rule is
that where the transcripts of a defendant's trial are
incomplete because they omit portions of the trial
proceedings, such omissions do not mandate reversal unless
they specifically prejudice the defendant's appeal." State
v. Kiese, 126 Hawai‘i 494, 508, 273 P.3d 1180, 1194 (2012).

Id. at *2-3.

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The 2019 Chatman Remand Order also set forth the
following pertinent background for the missing trial testimony
issue:
On June 17, 2003, Dr. Victoria Schneider (Dr. Schneider), a
pediatrician, was called by the State to testify as an
expert on child abuse. After describing the injuries that
the Minor suffered, Dr. Schneider asked if she could share
a slide show presentation on shaken baby syndrome with the
jury to explain how shaking could have caused the Minor's
injuries. Defense Counsel objected. After examining the
slides and concluding that they would not be misleading,
the circuit court allowed Dr. Schneider to testify in
conjunction with the slide presentation, and asked her to
return the following morning on June 18, 2003 to begin her
presentation. The court then adjourned for the day.

The June 18, 2003 trial transcript in the Record on Appeal
does not contain Dr. Schneider's testimony on the slide
show presentation.5 Instead, the first page of the
transcript begins with Defense Counsel's objection to Dr.
Schneider's testimony. The trial transcript indicates
Defense Counsel stated that Dr. Schneider "was rambling on

5 This omission in the trial transcript contrasts with the HAJIS
case summary in the Record on Appeal, which notes that on June 18, 2003, the
following occurred:

9:04 A.M. CASE CALLED IN PRESENCE OF COUNSEL, DPA/D.
OYASATO, CA/C. KANAI AND DEFT ONLY RE: COURT'S INQUIRY OF
STATE'S OFFER OF PROOF AS TO WHAT DR. SCHNEIDER'S OPINION
WILL BE. COURT NOTED IT WAS NOT AWARE DOCTOR WAS ALSO THE
TREATING PHYSICIAN.

COURT'S RECORD MADE. DOCTOR WILL BE PROHIBITED FROM
EXPRESSING AN OPINION AS TO THE CREDIBILITY OF THE MOTHER
OR WHO MAY HAVE CAUSED INJURIES.

9:21 A.M. JURY PRESENT; CASE CALLED; APPEARANCES NOTED.

9:22-10:31 A.M. FURTHER TESTIMONY OF DR. SCHNEIDER.

9:23-9:32 A.M. [SHAKEN BABY SYNDROME] SLIDE SHOW
PRESENTATION PREPARED BY DR. SCHNEIDER.

10:31 A.M. RECESS.

10:49 A.M. RECONVENED W/COUNSEL & DEFT ONLY RE: DEFT'S
OBJECTION TO WITNESS TESTIFYING AS TO THE "HISTORY"
PROVIDED BY MOTHER AND DEFT'S FURTHER OBJECTION TO THE
WITNESS "RAMBLING NARRATIVE" DURING THE SLIDE SHOW
PRESENTATION. DEFENDANT'S ORAL MOTION FOR JUDGMENT OF
ACQUITTAL - DENIED.

10:55 A.M. JURY PRESENT.

Id. at *1 n.3 (brackets in original).
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and on, and it looked like a lecture [rather] than
testimony in court." Defense Counsel therefore argued that
"[Dr. Schneider's] rambling narrative had an undue
prejudicial impact on the Defense. And for that reason, I
would request a mistrial--in this area or in combination
with other areas." The circuit court denied Chatman's
motion for mistrial, but stated "your record is preserved."
At that point, Defense Counsel began his cross-examination
of Dr. Schneider.

Id. at *1 (brackets and footnote in original). The 2019 Chatman
Remand Order noted that: "while Defense Counsel made an oral
motion for a mistrial following Dr. Schneider's testimony and
the circuit court assured Chatman that 'your record is
preserved,' the testimony which was objected to was not
preserved[,]" and "[t]his omission may have specifically
prejudiced Chatman's appeal." Id. at *3 (citation omitted).
The supreme court mandated a HRPP Rule 40 evidentiary hearing on
Chatman's Motion for Correction, to "determine, pursuant to
[Hawai‘i Rules of Appellate Procedure (HRAP)] Rule 10(e),6
whether correction or modification of the record is
appropriate." Id. at *4 (footnote added).
The record on remand reflects the Circuit Court
conducted proceedings in 2019 and 2020, during which the parties

6 HRAP Rule 10(e) provides in pertinent part:

(e) Correction or modification of the record.
(1) If any differences arise as to whether the record
truly discloses what occurred in the court or agency
appealed from, the differences shall be submitted to and
settled by that court or agency and the record made to
conform to the truth.
(2) If anything material to any party is omitted from
the record by error or accident or is misstated therein,
corrections or modifications may be as follows:
(A) by the stipulation of the parties; or
(B) by the court or agency appealed from, either
before or after the record is transmitted; or
(C) by direction of the appellate court before
which the case is pending, on proper suggestion or its own
initiative.
(3) All other questions as to the form and contents
of the record shall be presented to the appellate court
before which the case is pending.

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attempted to re-create the record of the missing testimony. On
March 12, 2021, the court entered an "Order Re: Correction
and/or Modification of the Record" (Order Correcting Record).
This order stated that:
the record of the trial proceedings held on June 18,
2003 in State of Hawai‘i v. Anthony Chatman, FC-CR No.
02-1-0011 and CR. No. 02-1-2353, shall be corrected
and/or modified to include the following:
a. On June 18, 2003, the case was called at 9:04
a.m. Present at this time were [DPA], Defense
[Counsel] and Defendant Anthony Chatman.
b. Between 9:04 and 9:21 a.m., a conversation was
had between the court and attorneys outside of
the presence of the jury.
c. At 9:21 a.m., the case was called in the
presence of the jury as well as [DPA], Defense
[Counsel] and Defendant Anthony Chatman.
d. At 9:22 a.m., Dr. Victoria Schneider began
testifying on direct examination as a witness
for the State of Hawai‘i.
e. Between 9:23 a.m. and 9:32 a.m., Dr.
Schneider's testimony included a PowerPoint
slide presentation.
f. Dr. Schneider's PowerPoint slide presentation
consisted of several slides that had been
marked for identification on June 17, 2003, as
State's Exhibit 66.
g. Dr. Schneider's PowerPoint slide presentation
included a presentation on shaken baby syndrome
and included an animated demonstration of the
shaking of an infant and injuries described as
subdural hematoma and retinal hemorrhages.
h. Dr. Schneider's PowerPoint slide presentation
concluded at 9:32 a.m.
i. Dr. Schneider's entire direct testimony ended
at 10:31 a.m.
j. During Dr. Schneider's direct examination on
June 18, 2003, defense counsel made at least
one objection to Dr. Schneider's testimony.
The objection was that she was testifying by
narrative. The objection was sustained by the
court.

Rule 40 Order, FOF/COL 23.
Following the entry of the March 12, 2021 Order
Correcting Record, Chatman was permitted to file his April 9,
2021 Amended Rule 40 Petition, in which he argued that: his
counsel on direct appeal was ineffective for "fail[ing] to
recognize the absence of more than one hour of expert testimony
from the record on appeal, as well as the absence of the
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objection to said testimony which formed one of the bases of
[Chatman]'s motion for mistrial"; and that the corrected record
still prejudiced Chatman's due process rights because the
missing portions of the transcript were still unavailable.
Chatman claimed that "[t]he omissions contained within the newly
created record specifically prejudice[d]" Chatman, and requested
relief in the form of a new trial.
On November 30, 2021, the Circuit Court held a hearing
on Chatman's Amended Rule 40 Petition, during which Chatman's
counsel on direct appeal (Appellate Counsel)7 testified. The
Circuit Court's March 31, 2022 Rule 40 Order made the following
pertinent FOF/COLs:
11. On February 22, 2019, the Supreme Court entered a
Summary Disposition Order, vacating the ICA's judgment
and the circuit court's order denying Petitioner's
Motion for Correction. The Supreme Court remanded the
case to the circuit court for a HRPP Rule 40
evidentiary hearing on the Motion for Correction: "We
remand the case to the circuit court for a HRPP Rule
40 evidentiary hearing on Chatman's Motion for
Correction, in which the circuit court should
determine, pursuant to HRAP Rule 10(e), whether
correction or modification of the record is
appropriate."

. . . .

14. On September 6, 2019, a hearing was held in which the
State of Hawai'i stipulated that the missing portion
of Dr. Schneider's testimony from the June 18, 2003
trial transcript was material and was omitted from the
record by error or accident.

. . . .

24. Following Dr. Schneider's testimony at trial, [Trial
Counsel] made an oral motion for a mistrial. The
trial judge denied the motion, stating in part: "I
must deny the motion for mistrial, but your record is
preserved."

. . . .

42. [Chatman]'s Appellate Counsel erred in omitting
appealable issues in the Direct Appeal and therefore

7 Appellate Counsel was not Chatman's trial defense counsel (Trial
Counsel).
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precluded a determination of those issues on their
merits. A new trial would not be the appropriate
remedy responsive to this error. Rather, the
appropriate remedy for Appellate Counsel's ineffective
assistance in the Direct Appeal is to allow [Chatman]
an opportunity to assert the omitted appealable issues
in a new appeal, where an appellate court can decide
them on their merits. Id. at 394.

. . . .

44. [Chatman] asserts that the record, as corrected or
modified by the court's March 12, 2021 Order Re:
Correction and/or Modification of the Record, is so
incomplete that his ability to assert a potentially
meritorious argument in a new appeal is specifically
prejudiced. Whether the record on appeal, as
corrected or modified, is so incomplete that it
specifically prejudices [Chatman]'s ability to raise a
potentially meritorious argument in a new appeal is an
issue for an appellate court to determine in the new
appeal.

45. The Amended Rule 40 Petition is granted with respect
to [Chatman]'s request for post-conviction relief
based on ineffective assistance of Appellate Counsel
(ground 1); The Amended Rule 40 Petition is denied
with respect to [Chatman]'s request for a new trial on
the grounds that the modified and/or corrected record
specifically prejudices his due process rights on
appeal (ground 2.)

46. Pursuant to HRPP 40(g)(1), and based on the foregoing
findings and conclusions that Appellate Counsel
rendered ineffective assistance on the Direct Appeal
and that a new appeal is the appropriate remedy, the
court will enter separate orders in the underlying
criminal cases vacating and reentering the judgments
of conviction filed on July 19, 2004, to allow
[Chatman] the opportunity to pursue new appeals in
those matters.

(Emphases added.)8 The Circuit Court concluded that a new
appeal, rather than a new trial as Chatman requested, was "the
appropriate remedy[.]" FOF/COL 46. To effectuate the new
appeal remedy, the Circuit Court re-entered the July 19, 2004
judgments of conviction in the Attempted Murder Case and the
Witness Offenses Case so Chatman could pursue "new appeals" in
these cases. Id. Chatman timely appealed.

8 Chatman challenges FOF/COLs 11, 23, 24, 42, 44 and 45 on appeal.
FOF/COL 23 is quoted supra.
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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

COL "that presents mixed questions of fact and law is reviewed
under the clearly erroneous standard[.]" State v. Rodrigues,
145 Hawai‘i 487, 494, 454 P.3d 428, 435 (2019) (citation
omitted).
III. DISCUSSION
A. In the Rule 40 Appeal, the remedy of a new appeal
rather than a new trial was erroneous where the
missing material trial testimony of the State's expert
witness specifically prejudiced Chatman's ability to
appeal in the Attempted Murder Case.

In the Rule 40 Appeal, Chatman asserts that in
ordering a new appeal, the Circuit Court "essentially granted
[Chatman] no remedy" because "[t]he record is still incomplete
as there are still 87 minutes of missing expert testimony,
arguments, and objections."9 Chatman argues that the Circuit
Court should have concluded that the missing transcript mandated
a new trial because the omission of the transcript specifically
prejudiced Chatman's ability to appeal.
The State argues that the Circuit Court correctly
granted Chatman a new appeal rather than a new trial because
Chatman failed "to make a reasonable attempt to reconstruct,
modify, or supplement the missing portions of the record," and
failed to "demonstrate specific prejudice." The State relies on
State v. Bates, 84 Hawai‘i 211, 217, 933 P.2d 48, 54 (1997) to
support its argument that if an "entire transcript could not be

9 Chatman's calculation that the "87 minutes" missing from the
court record is the number of minutes that passed between the case being
called at 9:04 a.m. and the end of Dr. Schneider's testimony at 10:31 a.m.,
according to the court minutes.
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prepared, the parties must show compliance with HRAP Rule 10(c)
. . . or show that error was committed by the trial court."

1. The State's argument based on State v.
Bates and HRAP Rule 10(c) is without merit.

Bates involved inaudible entries in trial transcripts,
not missing material trial testimony as in this case, and it is
inapposite. Id. at 214, 933 P.2d at 51. The Bates court held
that where that defendant "made no attempt to reconstruct the
record pursuant to HRAP 10(c)10 or correct or modify the record
pursuant to HRAP 10(e)[,]" the defendant failed to demonstrate
"specific prejudice by reason of inaudible entries in a trial
transcript," and was "not entitled to a new trial." Id. at 56,
933 P.2d at 219 (footnote added).
Here, the State's argument that Chatman had to comply
with HRAP Rule 10(c) is without merit, where the supreme court's
2019 Chatman Remand Order directed the Circuit Court to
"determine, pursuant to HRAP Rule 10(e), whether correction or
modification of the record is appropriate." 2019 WL 912118, at
*4 (emphasis added). The Circuit Court did so, and entered the
March 12, 2021 Order Correcting Record, the contents of which is
set forth in FOF 23 in the Rule 40 Order, quoted supra.
Assuming arguendo HRAP Rule 10(c) applied to these proceedings

10 HRAP Rule 10(c) provides:

If the reporter refuses, becomes unable, or fails to
transcribe all or any portion of the evidence or oral
proceedings after proper request, the party may (i) request
that transcription of the reporter's notes be submitted to
another reporter for transcription where feasible; or (ii)
prepare a statement of the evidence or proceedings from the
best available means, including the party's recollection or
uncertified transcripts or reporter's notes. The statement
shall be served on the opposing party(ies), who may serve
objections or propose amendments thereto within 10 days
after service. Thereupon the statement and any objections
or proposed amendments shall be submitted to the court or
agency appealed from for settlement and approval and as
settled and approved shall be included by the clerk of the
court appealed from in the record on appeal.
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on remand, the extensive attempts by the Circuit Court and the
parties to recreate the missing record, culminating in the
Circuit Court's March 12, 2021 Order Correcting Record,
established Rule 10(c) compliance. The State's arguments are
unavailing.

2. The record reflects that, under the
unique circumstances of this case, where
Chatman's ability to appeal was prejudiced
due to the missing material trial testimony
of the State's child abuse expert, a new
appeal on the same incomplete record is an
ineffective remedy.

Chatman argues that the Circuit Court should have
found "specific prejudice" under Kiese, because "the record
remains incomplete" and an appellate court "cannot determine
whether the lower court committed reversible error" during the
missing portion of Dr. Schneider's testimony. (Brackets and
emphasis omitted.) In this regard, Chatman challenges FOF/COLs
42, 44, and 45, which stated that the remedy is a new appeal,
because "[w]hether the record on appeal, as corrected or
modified, is so incomplete that it specifically prejudices
[Chatman]'s ability to raise a potentially meritorious argument
in a new appeal is an issue for an appellate court to determine
in the new appeal." Chatman's argument that specific prejudice
warranting a new trial was already established on the record
before the Circuit Court, is persuasive.
"'The general rule is that where the transcripts of a
defendant's trial are incomplete because they omit portions of
the trial proceedings, such omissions do not mandate reversal
unless they specifically prejudice the defendant's appeal.'"
Kiese, 126 Hawai‘i at 508, 273 P.3d at 1194 (brackets omitted)

(quoting State v. Ganotisi, 79 Hawai‘i 342, 343, 902 P.2d 977,

978 (App. 1995)). Both Kiese and Ganotisi found no specific

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prejudice to the defendants' appeals for inaudible, or
indiscernible responses in transcripts,11 and did not involve
testimony that is completely missing from the transcript, as
here.
Here, the June 18, 2003 transcript omitted one hour
and nine minutes of Dr. Schneider's testimony, from 9:22 a.m. to
10:31 a.m., that the Circuit Court determined was "material" in
FOF/COL 14.12 The materiality of Dr. Schneider's testimony as
the State's child abuse expert witness in an attempted murder
prosecution involving Chatman's infant son, is plainly evident.
The missing testimony is the entire further direct examination
of Dr. Schneider, which included Dr. Schneider's PowerPoint
presentation on shaken baby syndrome that drew "at least one"
defense objection and a defense motion for a mistrial. FOF/COL
23(g), (j), and 24. While the Order Correcting Record attempted
to fill the void of the missing testimony, it is an inadequate

11 In Kiese, the court concluded no specific prejudice existed
because while the trial transcript contained numerous inaudible responses,
and the court, prosecutor, and defense attorney had noted for the record that
"the [witness] was nodding, shaking his head, or shrugging"; there were no
objections; and that the parties' interpretations of the witness's testimony
and "what was captured for the record at the trial level was understood by
all." 126 Hawai‘i at 508, 273 P.3d at 1194.

Ganotisi is also distinguishable from the instant case. In
Ganotisi, the defendant argued on appeal that he was denied his right to due
process because the 368 notations of inaudible or indiscernible responses in
the 325 pages of transcript of his two-day trial rendered his appellate
counsel "unable to accurately review the trial proceedings to determine
whether prejudicial error occurred." Ganotisi, 79 Hawai‘i at 343, 902 P.2d at
978. The defendant's trial was recorded by video camera, and the videotape
of the trial was transcribed by a court reporter; both the transcripts and a
copy of the video recording were part of the record on appeal. Id. The
supreme court determined that while there were omissions in the transcript,
it could still discern from the remainder of the transcript and the video
recording as to why the challenged evidence was admitted and why the court
sustained the state's objection. Id. at 344-46; 902 P.2d at 979-81.
12 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)).

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substitute for a transcript necessary for appellate counsel to
properly challenge an issue, and for an appellate court to
review the same. "The burden is upon appellant in an appeal to
show error by reference to matters in the record, and he or she
has the responsibility of providing an adequate transcript."
Bettencourt v. Bettencourt, 80 Hawai‘i 225, 230, 909 P.2d 553,

558 (1995) (brackets omitted) (quoting Union Bldg. Materials
Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682 P.2d 82,
87 (1984)); see HRAP Rule 10(b)(1) (requiring the preparation of
a transcript for appellate review); HRAP Rule 28(b)(4)(ii) and
(iii) (requiring appellant identify where in the record error
occurred, and how it was preserved). Chatman's ability to
appeal any of his missing objection or objections to Dr.
Schneider's missing testimony and the motion for mistrial
stemming from the same testimony, are clearly prejudiced. The
remedy of a new appeal does not rectify the prejudice to
Chatman's ability to appeal where the recording of the missing
trial testimony is still missing and unavailable.13 We conclude
that under the unique circumstances of this case, Chatman
demonstrated specific prejudice to his ability to appeal due to
missing material trial testimony of Dr. Schneider, warranting a
new trial. See Kiese, 126 Hawai‘i at 508, 273 P.3d at 1194. The
Circuit Court erred in granting Chatman a new appeal instead of
a new trial in FOF/COLs 42, 44, and 45. See Rodrigues, 145
Hawai‘i at 494, 454 P.3d at 435.

13 We take judicial notice of the July 18, 2022 "Certificate of No
Transcript" filed by the Supervising Court Reporter of the Circuit Court in
CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, which indicates that the transcripts of
the June 18, 2003 trial proceedings are "not available as the requested
hearing dates are (1) outside the [Court Reporter's Office]'s records
retention period of 10 years so the Court Reporters Office has no ability to
obtain them and/or (2) the Court Reporters Office has no current contact
information for each former Official Court Reporter[.]" See Hawai‘i Rules of
Evidence Rule 201; State v. Kwong, 149 Hawai‘i 106, 113-14, 482 P.3d 1067,
1074-75 (2021).
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B. In the Attempted Murder Appeal, the 2022 Re-
entered Attempted Murder Judgment and the
original 2004 judgment are vacated.

We also address Chatman's POE in the Attempted Murder
appeal that the Complaint should be dismissed under Obrero, in
which the supreme court held that charging a defendant with a
felony by complaint, rather through an indictment or
information, violates Hawaii Revised Statutes (HRS) § 801-1
(2014). 151 Hawai‘i at 478, 482, 517 P.3d at 761, 765. Chatman
contends that the Complaint should be dismissed because he was
"charged with Attempted Murder in the Second Degree by
Complaint," and not by grand jury indictment. The State argues,
among other things, that Obrero does not apply because Chatman
raises his HRS § 801-1 challenge for the "first time on
appeal[,]" and "does not allege that he was prejudiced by the
complaint" nor that "the complaint cannot be construed to charge
a crime." The State's argument has merit.
In Obrero, the supreme court held that had the
defendant challenged the complaint and the State's failure to
comply with HRS § 801-1 for the first time on appeal, the
supreme court would have "presume[d] the validity of the
complaint against him and would not [have] reverse[d] his
conviction absent a showing that the complaint prejudiced him or
could not be construed to charge a crime." Id. at 478 n.11, 517
P.3d at 761 n.11.
Here, the record reflects that Chatman did not
challenge the Complaint or the State's compliance with HRS §
801-1 below. Nor does Chatman argue on appeal how the Complaint
"prejudiced him or could not be construed to charge a crime."
Thus, we "presume the validity" of the Complaint against Chatman
and reject Chatman's challenge. See id.
In light of the resolution of the Rule 40 Appeal
supra, that a new trial is the appropriate remedy in the
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Attempted Murder Case, we vacate the 2022 Re-entered Attempted
Murder Judgment and the earlier 2004 Attempted Murder Judgment,
and order a new trial on the Attempted Murder Case.
C. In the Witness Offenses Appeal, the 2022 Re-
Entered Witness Offenses Judgment is vacated.

The missing trial testimony of child abuse expert, Dr.
Schneider, warrants the relief of a new trial in the Attempted
Murder Case, but not for the Witness Offenses Case. Nothing in
the Rule 40 Order indicates why relief was appropriate or
warranted in the Witness Offenses Case. The Circuit Court erred
by entering the 2022 Re-Entered Witness Offenses Judgment and
ordering a new appeal in that case. See Rodrigues, 145 Hawai‘i

at 494, 454 P.3d at 435. We thus vacate the Re-entered Witness
Offenses Judgment, and the earlier 2004 Witness Offenses
Judgment still stands, with respect to Counts 1 and 2.14
IV. CONCLUSION
For the foregoing reasons, with respect to the
following orders and judgments entered by the Circuit Court of
the First Circuit:
(1) in CAAP-XX-XXXXXXX, the Rule 40 Appeal, we affirm
in part and vacate in part the March 31, 2022 "Findings of
Fact and Conclusions of Law and Order Granting in Part and
Denying in Part Petitioner's Amended Petition for Post-
Conviction Relief, Filed April 9, 2021";
(2) in CAAP-XX-XXXXXXX, the Attempted Murder Appeal,
the March 31, 2022 "Judgment of Guilty Conviction and
Sentence[,] Notice of Re-entry" and the earlier July 19,
2004 "Judgment of Guilty Conviction and Sentence" are
vacated, and we remand for a new trial;
(3) in CAAP-XX-XXXXXXX, the Witness Offenses Appeal,
the March 31, 2022 "Judgment of Guilty Conviction and

14 See footnote 2 supra, regarding disposition of Count 3.
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Sentence[,] Notice of Re-entry" is vacated, and the earlier
July 19, 2004 "Judgment of Guilty Conviction and Sentence"
still stands.
DATED: Honolulu, Hawai‘i, January 30, 2024.
On the briefs:
/s/ Katherine G. Leonard
George A. Burke,
Acting Chief Judge
Attorney for Petitioner-
Appellant in
/s/ Keith K. Hiraoka
CAAP-XX-XXXXXXX
Associate Judge
Randal I. Shintani,
/s/ Karen T. Nakasone
Attorney for Defendant-
Associate Judge
Appellant in CAAP-XX-XXXXXXX
and CAAP-XX-XXXXXXX

Stephen K. Tsushima,
Deputy Prosecuting Attorney
for Respondent-Plaintiff-
Appellee

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