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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-FEB-2026
07:53 AM
Dkt. 107 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
DALE G. BASGALL, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2FFC-XX-XXXXXXX)

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

Defendant-Appellant Dale G. Basgall (Basgall) appeals

from the Family Court of the Second Circuit's (family court)

November 29, 2023 "Judgment and Sentence of the Court"

(Judgment). 1

On January 5, 2021, Plaintiff-Appellee State of Hawaiʻi

(State) filed a "Felony Information and Non-Felony Complaint"

(Complaint), charging Basgall with Felony Abuse of Family or

Household Member, in violation of Hawaii Revised Statutes (HRS)

1 The Honorable Michelle L. Drewyer presided.
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§ 709-906(1) (2014) and/or (8) (2014) (Count 1), Abuse of Family

or Household Member, in violation of HRS § 709-906(1) and/or

(5)(a) (2014) (Count 2), and Terroristic Threatening in the

Second Degree, in violation of HRS § 707-717(1) (2014) (Count

3). A jury found Basgall guilty of Count 2, and not guilty of

Counts 1 and 3. The family court sentenced Basgall to two years

of probation.

Basgall raises three points of error on appeal,

contending: (1) the family court erred by "failing to suppress

Basgall's second statement," because it was "the tainted fruit"

of Basgall's first statement, which the family court had found

to be inadmissible; (2) the family court made "cumulative

errors" that were not harmless beyond a reasonable doubt; and

(3) ineffective assistance of counsel.

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

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

we resolve Basgall's contentions of error as follows:

(1) Basgall contends that the family court erred in

admitting his second statement to the Maui Police Department

(MPD). He contends that his second statement was "the tainted

fruit" of his first statement because it "resulted from the

'exploitation' of [his inadmissible first statement]." We

review the family court's admission of Basgall's second

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statement de novo under the right/wrong standard. State v.

Heggland, 118 Hawaiʻi 425, 434, 193 P.3d 341, 350 (2008).

Under the federal and state constitutions, "[t]he

fruit of the poisonous tree doctrine prohibits the use of

evidence at trial which comes to light as a result of the

exploitation of a previous illegal act of the police." State v.

Lee, 149 Hawaiʻi 45, 50, 481 P.3d 52, 57 (2021) (cleaned up).

"Where the government proves that the evidence was discovered

through information from an independent source or where the

connection between the illegal acts and the discovery of the

evidence is so attenuated that the taint has been dissipated,

the evidence is not a 'fruit' and, therefore, is admissible."

State v. Fukusaku, 85 Hawaiʻi 462, 475, 946 P.2d 32, 45 (1997)

(citations omitted).

"[E]vidence must first be objected to as being the

'fruit' before the government can be expected to prove that it

was discovered through an independent source." Id. (cleaned

up). The record reflects that Basgall did not move to exclude

his second statement, and, as defense counsel represented,

Basgall in fact "want[ed] that statement to come in." See

State v. Poaipuni, 98 Hawaiʻi 387, 394, 49 P.3d 353, 360 (2002)

(holding that the circuit court did not plainly err where the

defendant did not seek to exclude his inculpatory statement as

tainted fruit).

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We therefore conclude that the family court did not

err by admitting the second statement.

(2 & 3) Basgall contends, inter alia, that the family

court erred "in concluding that Basgall's [defense] counsel had

opened the door regarding prior bad acts of Basgall during his

cross-examination of [the complaining witness's (CW) daughter

(Daughter)]." The State agrees and concedes error. 2 We review

the family court's conclusion de novo under the right/wrong

standard. State v. Miranda, 147 Hawaiʻi 171, 179, 465 P.3d 618,

626 (2020).

Under the "opening the door" doctrine, 3 when one party

presents inadmissible evidence, the opposing party may "adduce

pertinent evidence that would otherwise be inadmissible" as a

rebuttal. Id. at 183, 465 P.3d at 630 (citation omitted). "The

extent of this doctrine is limited, [however,] and it does not

allow a party to adduce inadmissible evidence for the purpose of

rebutting inferences raised by the introduction of admissible

evidence." Id. (citations omitted).

2 We note that the State's concession of error is not binding on
this court. In "confession of error" cases, appellate courts have an
independent duty "first[,] to ascertain that the confession of error is
supported by the record and well-founded in law[,] and second[,] to determine
that such error is properly preserved and prejudicial." State v. Hoang, 93
Hawaiʻi 333, 336, 3 P.3d 499, 502 (2000) (cleaned up).

3 Hawaiʻi has not adopted the "opening the door" doctrine. Miranda,
147 Hawaiʻi at 183 n.13, 465 P.3d at 630 n.13. We need not decide whether
Hawaiʻi should adopt the doctrine because it does not apply to this case. See
id. at 184 n.14, 465 P.3d at 631 n.14.

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The record reflects that defense counsel, during his

cross-examination of Daughter, introduced the video recording of

an MPD interview, in which Daughter referenced CW's history of

concussions 4:

THE OFFICER: So you're -- you're not seriously
injured? You don't need medics or anything right now, do
you?
[CW]: I was thinking maybe a pain pill sometime
soon, but I was -- yeah, because I'm going to start feeling
pain --
[Daughter]: Yeah, she's -- she's had a lot of
concussions --
[CW]: -- sooner than later.
[Daughter]: -- in her lifetime, but we don't go -- we
can't afford medical attention.
[CW]: No, it's not necessary really.

(Emphasis added.)

After the recording was played, defense counsel asked

Daughter, "Now, when you made [that] statement[,] . . . were you

talking about previous concussions?" Daughter responded, "Yes."

The State did not object. The question was admissible to

clarify that Daughter was not saying CW sustained a concussion

during the incident in question.

The State, during re-direct examination, asked

Daughter whether CW's multiple concussions were of "[CW's] own

doing," and whether Daughter knew who caused those concussions.

Basgall objected. The State argued that defense counsel's

cross-examination had "opened the door" to the State's

4 The State stipulated to the admission of Defense Exhibits M-1
through M-13 into evidence, which included the video recording.

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questions. The family court overruled Basgall's objection, and

Daughter testified that Basgall had "caused those concussions."

We conclude that Basgall's introduction of admissible

evidence regarding CW's concussions did not "open the door" to

the State's inadmissible evidence of Basgall's prior bad acts.

See Hawaii Rules of Evidence Rule 404(b) (prohibiting the

admission of "[e]vidence of other crimes, wrongs, or acts . . .

to prove the character of a person in order to show action in

conformity therewith").

We therefore vacate the Judgment, and remand for

further proceedings consistent with this summary disposition

order. In light of our conclusion above, we decline to address

the additional arguments that Basgall raises in point of error

(2). We further decline to address Basgall's point of error

(3), which asks this court to vacate the Judgment on the basis

of ineffective assistance of counsel. See State v. Cordeiro,

99 Hawaiʻi 390, 428, 56 P.3d 692, 730 (2002).

DATED: Honolulu, Hawaiʻi, February 26, 2026.

On the briefs:
/s/ Karen T. Nakasone
Hayden Aluli, Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Chad M. Kumagai, Associate Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge