State v. Jercy

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JAN-2026
08:04 AM
Dkt. 95 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
SILBER M. JERCY, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Silber M. Jercy (Jercy) appeals

from the November 21, 2023 Amended Judgment of Conviction and

Sentence (Amended Judgment) entered by the Circuit Court of the

First Circuit (Circuit Court).1 Jercy also challenges the

Circuit Court's July 28, 2022 Findings of Fact, Conclusions of

Law and Order Denying Defendant's Motion to Suppress

Identification (Order Denying Motion to Suppress).2

Plaintiff-Appellee State of Hawai i (State) charged

Jercy with a single count of Assault in the Second Degree, in

violation of Hawaii Revised Statutes (HRS) § 707-711(1)(m)

1
The Honorable Lesley N. Maloian presided.
2
The Honorable Rowena A. Somerville presided.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

(Supp. 2021).3 After a jury trial, Jercy was found guilty as

charged. The Circuit Court sentenced Jercy to, inter alia, a

four-year term of probation.

Jercy raises a single point of error on appeal,

contending the Circuit Court erred in denying his June 14, 2022

Motion to Suppress Identification (Motion to Suppress), including

error reflected in the findings of fact and conclusions of law.

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, we resolve Jercy's

point of error as follows:

Jercy argues that the Circuit Court erred when it

denied the Motion to Suppress, because even though the Circuit

Court found that the police show-up where Jercy was identified by

the complaining witness (CW) was impermissibly suggestive, it

failed to examine the impact the impermissible show-up had on the

reliability of the identification itself.

It is well-established that a defendant's due process

rights may be violated if the procedure used to obtain an

eyewitness identification is impermissibly suggestive. State v.

Kaneaiakala, 145 Hawai i 231, 240, 450 P.3d 761, 770 (2019).
Whether an eyewitness identification may be admissible even if it

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§ 707-711 Assault in the second degree. (1) A person
commits the offense of assault in the second degree if the
person:

. . . .

(m) Intentionally or knowingly causes bodily injury
to a person who is sixty years of age or older
and the age of the injured person is known or
reasonably should be known to the person causing
the injury.

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is obtained through an impermissibly suggestive procedure depends

on the reliability of the identification. Id. In Kaneaiakala,

the Hawai i Supreme Court held that its prior framework for

determining the admissibility of eyewitness identifications was

insufficient and, prospectively, adopted new requirements for

trial courts evaluating whether an eyewitness identification must

be suppressed. Id. at 241-47, 450 P.3d at 771-77.

The supreme court first pointed to thirteen factors

that a trial court should consider including in jury instructions

regarding how to assess the reliability of an eyewitness

identification4 and held that the judge must consider those same

factors in addressing the admissibility of an eyewitness

identification. Id. at 242-47, 450 P.3d at 772-77.

In so doing, the supreme court also noted its prior

holding that field show-up identifications are "inherently

suggestive," and therefore require additional instructions

regarding how the suggestiveness of show-up identifications may

affect the reliability of the identification. Id. at 243, 450

P.3d at 773 (citing State v. Cabinatan, 132 Hawai i 63, 76, 319

P.3d 1071, 1084 (2014)). These additional instructions regarding

show-up identifications have been promulgated as HAWJIC 3.19A

Show-Up Identification.5 The supreme court in Kaneaiakala stated

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These thirteen factors have been adopted by Hawaii's Standard
Committee on Pattern Jury Instructions in Hawai i Standard Instruction
(HAWJIC) 3.19 Eyewitness Testimony.
5
HAWJIC 3.19A, Show-Up Identification, reads as follows:

In this case, in addition to other eyewitness
identification testimony, you have received evidence that
the defendant was identified by a witness at a so-called
"show-up" conducted by the police. While show-ups are
permissible, they are inherently suggestive police
procedures. In determining the reliability and accuracy of
(continued...)

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that this instruction "appropriately points out additional

factors that a judge should consider including in a jury

instruction regarding the reliability of show-up

identifications," but had yet not been required to be considered

in evaluating "reliability for admissibility purposes." Id. at

244-45, 450 P.3d at 774-75. After considering admissibility

requirements in other states, the supreme court prospectively

held that additional relevant factors that a jury must consider

in a show-up identification must also be considered by a trial

court in addressing the reliability and, therefore, admissibility

of an impermissibly suggestive show-up identification. Id. at

247, 450 P.3d at 777.

The supreme court further held that, prospectively,

trial judges must also consider the impact of suggestive

procedures as a part of the reliability evaluation used to

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(...continued)
an identification made at a police show-up, you must
consider the totality of the circumstances involved in the
show-up, which may include the following:
[Whether the identification was the result of a
suggestive procedure, including actions taken or words
spoken by police or anyone else to the witness before,
during, or after the identification process;]
[Whether the police either indicated to the witness
that a suspect was present in the procedure or failed to
warn the witness that the perpetrator may or may not be in
the procedure;]
[Whether the defendant was required to wear
distinctive clothing that the perpetrator allegedly wore, or
was handcuffed or otherwise appeared to be in police
custody;]
[Whether the witness was exposed to opinions,
descriptions, or identifications made by other witnesses, or
to photographs, news media, or to any other information that
may have influenced the independence of the identification;]
[Whether other participants in the show-up were
similar in appearance to the defendant;]
[Whether the witness's identification was made
spontaneously and remained consistent thereafter;]
[and any other circumstance relating to the witness's
ability to make an identification.]

(Emphasis added.)

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determine admissibility. Id. at 248, 450 P.3d at 778.

Finally, the supreme court noted that "factors

affecting reliability are not set in stone [and] [r]eliability is

a totality of the circumstances determination that can encompass

more than the factors that are included in our standard

instructions or discussed in this opinion." Id. at 249, 450 P.3d

at 779 (citation omitted).

Here, the Circuit Court found and it is undisputed on

appeal that CW's identification of Jercy was a show-up

identification and it was impermissibly suggestive. The disputed

issue is whether the Circuit Court erred in failing to consider

the relevant HAWJIC 3.19A factors, the impact of the

suggestiveness of the procedures used in the identification, and

other relevant factors under the totality of the circumstances of

the identification in its determination that the identification

was reliable, notwithstanding that it was impermissibly

suggestive.

The Order Denying Motion to Suppress shows the Circuit

Court considered the factors in HAWJIC 3.19, but not the factors

in HAWJIC 3.19A. Under the totality of the circumstances here,

we conclude that the Circuit Court erred in failing to consider

relevant HAWJIC 3.19A factors, the impact of the suggestiveness

of the procedures used in the identification, and other relevant

factors. The entire show-up identification was extraordinarily

suggestive. CW was strapped to a gurney, wearing a neck brace,

and attached to other medical equipment in the back of an

ambulance on the way to Pali Momi Medical Center. The ambulance

was diverted to a parking lot near the USS Arizona Memorial and

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stopped, for the sole purpose of identifying Jercy as the

perpetrator of the assault. With his hands cuffed behind his

back, his arm held by a uniformed police officer wearing gloves,

Jercy was walked past an open side door of the stopped ambulance

and held (still handcuffed) by the uniformed officer several feet

away from the back of the ambulance, with other police officers

moving around in the area. The back ambulance doors were closed,

but had two windows. At least one person (possibly more) -

presumably one or more police officers – can be heard on the

audio of a police bodycam recording (that was facing in through

the side door of the ambulance) saying, inter alia: Is that the

guy? Look out the window. Is this the guy? Is that the guy?

Is that the same person?

On cross-examination, CW was asked: "Okay. The

officers at your house, they told you they had the guy who

attacked you, right?" CW answered, "Yes, they told me they found

him, but I would identify him before I go to the hospital." One

of the officers testified that he recalled telling CW that there

was a suspect and that she needed to go identify him prior to any

arrest.

Relevant factors set forth in HAWJIC 3.19A include

whether the identification was the result of suggestive procedure

including actions taken or words spoken by police before, during,

or after the identification process; whether the defendant was

handcuffed or otherwise appeared to be in police custody; whether

the witness was exposed to opinions, descriptions, or

identifications made by other witnesses; other information that

may have influenced the independence of the identification;

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whether the identification was made spontaneously; and any other

circumstances relating to the witness's ability to make an

identification. The Circuit Court did not consider any of these

factors in its findings and conclusions. The Circuit Court

clearly erred in finding and concluding that CW identified Jercy

during the field show-up without any prompting. The entire

procedure was extremely suggestive, beginning with her testimony

that "they told me that they found him" – with "they" meaning the

police, to the dramatic diversion of an ambulance headed to the

emergency room of a hospital, to the stressful identification

from a gurney in the back of an ambulance prompted with repeated

uniformed police queries of is that the guy, including the

extreme suggestiveness that he was in fact the guy because he was

in handcuffs, and physically restrained by a police officer, with

multiple officers in the immediate vicinity. The Circuit Court

clearly erred in its findings and conclusions when it found and

concluded that the identification was made "without any

prompting." These are precisely the kind of circumstances that

warrant trial court examination of the impact of suggestive

procedures as a part of the reliability evaluation. See

Kaneaiakala, 145 Hawai i at 242, 450 P.3d at 772 (discussing,
inter alia, that false identifications are more common than

previously understood and the leading contributing factor in

wrongful convictions).

Upon review of all of the evidence adduced concerning

CW's identification of Jercy, including the evidence relied on by

the Circuit Court, we conclude based on the totality of the

circumstances, the Circuit Court clearly erred in failing to

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evaluate HAWJIC 3.19A factors and the impact of the suggestive

procedures in determining that CW's identification was reliable

and therefore erred in concluding that CW's identification of

Jercy was "sufficiently reliable" for the purposes of determining

admissibility.

Accordingly, we vacate the Circuit Court's July 28,

2022 Order Denying Motion to Suppress and the November 21, 2023

Amended Judgment. See, e.g., State v. Kong, 77 Hawai i 264, 269,

883 P.2d 686, 691 (App. 1994). This case is remanded to the

Circuit Court for further proceedings consistent with this

Summary Disposition Order.

DATED: Honolulu, Hawai i, January 30, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Benjamin E. Lowenthal,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Robert T. Nakatsuji, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.

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