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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-SEP-2025
08:02 AM
Dkt. 82 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
KAWIKA KANAKANUI, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka and Guidry, JJ.)

Kawika Kanakanui allegedly shot and killed Bryson Okada
on May 18, 2022, inside a Kapi#olani Boulevard game room. A jury
found him guilty of murder, among other offenses. He appeals
from the Judgment of Conviction and Sentence entered by the
Circuit Court of the First Circuit on August 23, 2024.1 We
vacate and remand for a new trial because Kanakanui was deprived
of his constitutional right to effective assistance of counsel.
A grand jury indicted Kanakanui for Murder in the
Second Degree; Ownership or Possession Prohibited of Any Firearm
or Ammunition by a Person Convicted of Certain Crimes; Place to
Keep Pistol or Revolver; and Carrying or Use of Firearm in the
Commission of a Separate Felony. A co-defendant, Ikaika
Atuatasi, was charged with Place to Keep Pistol or Revolver.

1
The Honorable Paul B.K. Wong presided.
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Both pleaded not guilty. Atuatasi later pleaded no contest to
Place to Keep Pistol or Revolver. Kanakanui went to trial.
The Circuit Court entered a pretrial order. It stated:
"Without the proper filing of notice, 'prior bad act' and HRE
[(Hawaii Rules of Evidence)] 404 evidence [of character or other
crimes, wrongs, or acts] is inadmissible."
The State filed a notice of intent to use evidence of
four bad acts by Kanakanui: (1) a conviction for Robbery in the
Second Degree "where he punched a female victim multiple times
and kicked her while she was on the ground, when she resisted
giving up her purse to [him]"; (2) a conviction for Assault in
the Third Degree "[w]here he punched a security guard multiple
times after being involved in an argument with him"; (3) "conduct
where he threw down and punched his girlfriend on December 30,
2017, causing an injury to her lip"; and (4) "conduct where he
asked a stranger for a cigarette and when was refused,
[Kanakanui] punched him in the head causing a cut to the left
ear[.]"
During the hearing on pretrial motions, the State said
it didn't anticipate introducing the prior bad act evidence
during its case in chief. It filed the notice in case Kanakanui
claimed self-defense and it needed the evidence to rebut who was
the first aggressor.
Defense counsel pointed out that one prior felony
conviction was an element of prohibited possession of a firearm,
but "it gets into prejudicial waters once we start bringing in
four or five different, you know, crimes that he may have
committed and some of the things that, you know, go along with
the factual bases of what he was convicted of[.]" Counsel stated
"we can talk about a stipulation for that."
The trial court ruled:

The convictions are allowed in for rebuttal purposes
only. If the defendant opens the door or testifies to any
peacefulness or law-abiding conduct or propensities, then

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and only then can the State bring in the convictions for
Robbery in the Second Degree and Assault in the Third
Degree.

Absent testimony that he is a peaceful or law-abiding
citizen, the prejudice of these convictions are substantial
and would outweigh any probativeness for what we have at
trial in this case.
With respect to the arrests, the probative value of
the arrests are much lower than those of convictions. And in
light of the lower probative value, the Court rules that the
prejudicial value substantially outweighs any probative
value for the arrests. So under no circumstances are the
arrests admissible at trial at any time.

And again, this is subject to the assumption that a
stipulation of a felony conviction will be entered for
Count 2.

The State and Kanakanui later submitted, and the trial
court approved, a written stipulation "that Kawika Kanakanui has
been convicted of committing a felony offense when in the State
of Hawaii when he was eighteen year [sic] or older."
Kanakanui filed several pretrial motions.
He sought to exclude his mugshot and other photos
showing him in police custody. It was granted.
He sought to exclude evidence of his criminal record.
It was granted in part consistent with the court's ruling on the
State's notice of intent to use.
He sought to exclude evidence that police officers —
including those from the County of Hawai#i — knew or were
familiar with him from other contacts or investigations. It was
granted.
Kanakanui testified in his own defense. He was at the
game room the night of May 18, 2022. He was gambling. He got
into a fistfight with someone named Kaleo outside the game room.
Okada was yelling instructions to Kaleo. Kanakanui lost the
fight. A gash on his eye was bleeding profusely.
As Kanakanui sat on the ground cleaning his eye, Okada
came up, pulled a gun from his fanny pack, and said "get the fuck
out of here, you pussy." Kanakanui "ended up retreating."

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Atuatasi showed up later that night. He asked
Kanakanui about the fight. Kanakanui said he lost, and "I did
get a gun pointed at me." Kanakanui testified Atuatasi gave him
a gun "for my -- my safety and my protection."
Kanakanui went back into the game room "because that
was the only game room that was open around the area, and I'm
going back in to gamble 'cause that's what I like doing." He
wasn't looking to pick a fight with anyone. The game room
security guard said, "don't make trouble, yeah."
Kanakanui answered, "Oh, yeah."
Kanakanui had the gun in his waistband. He was going
to the gaming area when he saw Okada. Okada looked at him and
"starts to reach for his -- his waistband again[.]" Kanakanui
testified, "I ended up lunging towards him, and I tried to stop
him from reaching for the gun, really really." Then,

I ended up reaching inside my waistband and pulling out the
gun, and he started going for the gun that I was pulling --
that I was pulling out.

And then he actually grabbed the gun, and I tried to
rip my -- rip the gun away from him, and then he put his arm
around my right arm.

Q. And when you say he grabbed the gun, he grabbed
your gun?

A. Yes, he grabbed my gun and the slide came back,
and that's why there was an unspent bullet on the ground.

Q. Okay. Now, after the interaction with [Okada]
is over, okay, what happened, what do you do?

A. After that interaction, you mean the scuffle?
Q. Yes.

A. I ended up trying to find a way out of there.

A jury found Kanakanui guilty as charged. He was
sentenced to concurrent terms of life with the possibility of
parole for murder, ten years for being a felon in possession of a

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firearm or ammunition,2 and 20 years for using a firearm in the
commission of a separate felony. This appeal followed.
Kanakanui states four points of error: (1) he was
deprived of his constitutional right to effective assistance of
counsel; (2) his waiver of the right to confront witnesses was
invalid; (3) the State committed a Batson3 violation; and
(4) there was prosecutorial misconduct. His first point is
dispositive.
A defendant in a criminal proceeding has the right to
the effective assistance of counsel under article I, section 14
of the Hawai#i Constitution and the Sixth Amendment to the United
States Constitution. State v. Salavea, 147 Hawai#i 564, 576, 465
P.3d 1011, 1023 (2020). Kanakanui's claim of ineffective
assistance was first made in this appeal, but we may consider it
"if the record is sufficiently developed to determine whether
there has been ineffective assistance of counsel." Id. at 575,
465 P.3d at 1022 (cleaned up).
Kanakanui served his opening brief on the attorney
alleged to have been ineffective, consistent with Hawai#i Rules
of Appellate Procedure Rule 28(a). We invited the attorney to
respond, citing Rule 1.6(b)(4) of the Hawai#i Rules of
Professional Conduct.4 No response was filed.

2
The place-to-keep and felon-in-possession counts merged.
3
In State v. Batson, 71 Haw. 300, 788 P.2d 841 (1990), the supreme
court held:

whenever the prosecution so exercises its peremptory
challenges as to exclude entirely from the jury all persons
who are of the same ethnical minority as the defendant, and
that exclusion is challenged by the defense, there will be
an inference that the exclusion was racially motivated, and
the prosecutor must, to the satisfaction of the court,
explain his or her challenges on a non-ethnical basis.

Id. at 302, 788 P.2d at 842.
4
Hawai#i Rules of Professional Conduct Rule 1.6(b)(4) provides that
a lawyer "may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary . . . to respond to
allegations in any proceeding concerning the lawyer's representation of the
(continued...)

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We must decide "whether, when viewed as a whole, the
assistance provided is within the range of competence demanded of
attorneys in criminal cases." Salavea, 147 Hawai#i at 576, 465
P.3d at 1023 (cleaned up). Kanakanui has the burden to "show
that there were specific errors or omissions reflecting counsel's
lack of skill, judgment, or diligence." Id. He argues his trial
attorney's failure to object to the jury hearing portions of his
recorded interview with police detectives was ineffective.
Two Honolulu Police Department detectives interviewed
Kanakanui. State's exhibit 253 was a recording of the interview.
Exhibit 254 was a transcript of the recording. The State offered
both exhibits into evidence. Kanakanui's objection to lack of
foundation was sustained.
The State laid additional foundation and reoffered the
recording. Kanakanui renewed his objection to foundation. The
trial court overruled the objection and received exhibit 253 in
evidence.
The State laid additional foundation and reoffered the
transcript. Kanakanui objected to hearsay. The trial court
overruled the objection, but said it would not allow both the
recording and the transcript into evidence. The State chose the
recording. The court allowed the jury to read the transcript
while the recording was played in court, "but it will not go into
the deliberation room."
The jury heard Kanakanui telling the detectives he got
his high school diploma at "Olomana" — the name commonly used for
the state facility where juvenile offenders are incarcerated.5
When asked how he knew Kaleo, he said "I knew him from inside,
doing time." He said he's been arrested "two and three" times,
and "Fuck, I've been in prison almost half my life."

4
(...continued)
client[.]"
5
We take judicial notice under Rule 201 of the Hawaii Rules of
Evidence that Olomana is a name commonly used for the Hawai#i Youth
Correctional Facility, located in Windward O#ahu near Mount Olomana.

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Seeing his prison tattoos, the detective asked, "You
uso fam?" USO Family is the name of a prison gang.6
Kanakanui replied, "Yeah."
The trial court had granted Kanakanui's motion in
limine to exclude evidence of his prior convictions and arrests.
It ruled that the prejudice of the convictions outweighed any
probative value "for what we have at trial in this case." The
court also ruled that prejudice "substantially outweighs any
probative value for the arrests. So under no circumstances are
the arrests admissible at trial at any time." Yet, defense
counsel did not move to redact references to Kanakanui's prior
arrests, convictions, and membership in a prison gang from the
recording and transcript under HRE Rules 402, 403, and 404.
Specific acts or omissions having an obvious tactical
basis for benefitting the defense will not be second guessed.
Salavea, 147 Hawai#i at 576, 465 P.3d at 1023. We can think of
no obvious basis that evidence about Kanakanui's prior arrests,
convictions, and membership in a prison gang could have to
benefit Kanakanui's case. Its introduction was inconsistent with
the trial court's ruling that "under no circumstances" would
evidence of Kanakanui's prior arrests be admissible at trial
because its prejudice outweighed its probative value. See id.
Defense counsel's omission reflects counsel's "lack of skill,
judgment, or diligence." Id.
Kanakanui must also show that counsel's errors or
omissions resulted in "possible impairment of a potentially
meritorious defense." State v. Yuen, 154 Hawai#i 434, 438, 555
P.3d 121, 125 (2024). He need not show probable impairment, or
prove that he suffered actual prejudice. Id.; Salavea, 147
Hawai#i at 576, 465 P.3d at 1023.

6
The State points out that uso means brother in the Samoan
language. But see State v. Abihai, 146 Hawai#i 398, 402 n.5, 463 P.3d 1055,
1059 n.5 (2020) ("The USO Family Gang was a prison gang . . . in state
correctional facilities.")

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Kanakanui's defense was self-protection. The State
called no witness who saw what happened during the encounter in
the game room before Okada was shot. The success of the defense
hinged on Kanakanui's credibility. It is possible that
Kanakanui's past arrests, being in prison for almost half his
life (including as a juvenile), and being a member of a prison
gang decreased his credibility in the eyes of the jury. Under
these circumstances, we conclude that defense counsel's lack of
skill, judgment, or diligence possibly impaired a potentially
meritorious defense.
We need not address the other specific errors and
omissions raised by Kanakanui, or his other points of error.
Because Kanakanui was deprived of his constitutional right to
effective assistance of counsel, we vacate the August 23, 2024
Judgment of Conviction and Sentence and remand for a new trial.
DATED: Honolulu, Hawai#i, September 26, 2025.

On the briefs:
/s/ Karen T. Nakasone
Audrey Stanley, Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge