NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
§ 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
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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).
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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.
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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
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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. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
§ 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
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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).
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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.
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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.
5 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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