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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 17-JUN-2026 08:24 AM Dkt. 13 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAIʻI, Petitioner/Plaintiff-Appellee,
vs.
SILBER M. JERCY, Respondent/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1CPC-XX-XXXXXXX)
JUNE 17, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT JUDGE CATALDO, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY DEVENS, C.J.
I. INTRODUCTION
This case centers on the factors a trial court must
consider when a criminal defendant moves to suppress
identification evidence from a field show-up. The Intermediate
Court of Appeals (ICA) correctly determined that the Circuit
Court of the First Circuit (circuit court) overlooked certain *** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***
relevant factors that should have been considered when it denied
defendant’s motion to suppress. However, in remanding the case
for a new trial, the ICA should have also determined whether,
upon balancing all relevant factors as was required, the
suppression motion was correctly denied. Given that the
totality of the circumstances weighed in favor of granting the
suppression motion on this record, we clarify that the motion
should have been granted, and thus, the identification evidence
shall be suppressed on remand.
II. BACKGROUND
A. Incident
According to trial testimony, the complaining witness (CW),
who was sixty-nine years old at the time, was hanging laundry at
her Halawa home on March 22, 2022, when a man she had never seen
before attacked her by hitting her several times around her
head. The man ran off and two of CW’s neighbors separately
chased after him. One neighbor, C. Hernandez (Hernandez),
testified that he went after the man on his moped but lost sight
of the man for ten to fifteen seconds during the chase. The
other neighbor, J. Wainit (Wainit), drove off in a car with his
“friend” but admitted that he did not get a “clear view” of the
assailant. 1
1 The record does not identify Wainit’s “friend.”
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The neighbors subsequently saw Respondent/Defendant-
Appellant Silber M. Jercy (Jercy) sitting at a nearby bus stop
(approximately one to two minutes away by moped, according to
Hernandez’s testimony), believing that Jercy was the man who had
hit CW. The neighbors detained Jercy and called the police.
Honolulu Police Department (HPD) Officer Alayna Benton (Officer
Benton) arrived at the bus stop and handcuffed Jercy.
Back at CW’s home, CW, whose primary language is Chuukese,
verbally provided HPD with a brief description of the assailant.
CW’s granddaughter was present to interpret between Chuukese and
English, but HPD did not obtain a written statement from CW at
the time because of the language barrier. 2
CW was told that HPD “had a male in custody” and that she
“would identify him before [going] to the hospital.” CW was
then placed in an ambulance for transport to the hospital
without her granddaughter or a Chuukese interpreter. The
ambulance was then rerouted to the nearby bus stop to have CW
identify her attacker. HPD Officer Jon Tomishima (Officer
Tomishima) testified that although HPD wanted to instruct CW
that the perpetrator may or may not be present in the show-up,
Officer Tomishima was unable to provide that instruction due to
2 According to HPD Officer Jon Tomishima, a Chuukese translator was not available at the time.
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the language barrier.
After the ambulance arrived near the bus stop, CW, who was
sitting on a gurney in the back of the ambulance, was able to
view Jercy through the rear windows. During this field show-up,
Jercy stood alone and remained handcuffed, with his hands behind
his back and an HPD officer standing behind him. No other
persons were shown to CW.
CW identified Jercy as her attacker. CW testified that she
based her identification on Jercy’s face.
B. Relevant Procedural Background
Jercy was charged with assault in the second degree, in
violation of Hawai‘i Revised Statutes (HRS) § 707-711(1)(m)
(Supp. 2021).
Prior to his jury trial, Jercy moved to suppress CW’s field
show-up identification, arguing that the show-up was so
suggestive that it was unreliable for presentation at trial. 3
Relying on our decision in State v. Kaneaiakala, 145 Hawai‘i 231,
450 P.3d 761 (2019), the circuit court analyzed the facts in
light of the relevant factors listed in Hawai‘i Pattern Jury
Instructions--Criminal (HAWJIC) 3.19 and determined that CW’s
identification was sufficiently reliable notwithstanding the
3 The Honorable Rowena A. Somerville presided.
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suggestiveness of the field show-up. 4 The circuit court denied
4 HAWJIC 3.19 reads as follows:
The burden of proof is on the prosecution with reference to every element of a crime charged, and this burden includes the burden of proving beyond a reasonable doubt the identity of the defendant as the person responsible for the crime charged.
You must decide whether an eyewitness gave accurate testimony regarding identification.
In evaluating identification testimony, you may consider the following factors:
The opportunity of the witness to observe the person involved in the alleged criminal act;
The stress, if any, to which the witness was subject at the time of the observation;
The witness’s ability, following the observation, to provide a description of the person;
The extent to which the defendant fits or does not fit the description of the person previously given by the witness;
The cross-racial or ethnic nature of the identification;
The witness’s capacity to make an identification;
Evidence relating to the witness’s ability to identify other participants in the alleged criminal act;
Whether the witness was able to identify the person in a photographic or physical lineup;
The period of time between the alleged criminal act and the witness’s identification;
Whether the witness had prior contacts with the person;
The extent to which the witness is either certain or uncertain of the identification and whether the witness’s assertions concerning certainty or uncertainty are well- founded;
(continued . . .)
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Jercy’s suppression motion.
The jury later found Jercy guilty as charged.
On appeal, the ICA vacated the circuit court’s judgment and
remanded for a new trial. Applying Kaneaiakala, the ICA found
that the circuit court erroneously failed to consider the
relevant factors listed in HAWJIC 3.19A and the effect of the
suggestiveness of the show-up on the reliability of CW’s
identification.5 The ICA did not indicate whether CW’s
Whether the witness’s identification is in fact the product of his/her own recollection; and
Any other evidence relating to the witness’s ability to make an identification.
HAWJIC 3.19 Eyewitness Testimony (eff. 2014).
5 HAWJIC 3.19A 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 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; (continued . . .)
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identification would be admissible or was suppressed upon
remand.
C. State’s Certiorari Application
On certiorari, the State presents four questions:
1. Did the ICA gravely err or act inconsistently with prior decisions by requiring the Circuit Court to expressly address the factors in HAWJIC 3.19A in its admissibility determination?
2. Did the ICA gravely err or act inconsistently with prior decisions when it vacated the Circuit Court’s decision even though the Circuit Court did in fact consider the relevant factors regarding suggestiveness[?]
3. Did the ICA gravely err or act inconsistently with prior decisions when it vacated the Circuit Court’s decision based on the suggestiveness of the show-up when the real issue in this case was whether the identification was reliable notwithstanding suggestiveness?
4. Did the ICA gravely err or act inconsistently with prior decisions by vacating Defendant’s Amended Judgment of Conviction even though any errors in the identification by Complainant constituted harmless error?
We granted the State’s application on April 29, 2026.
III. STANDARD OF REVIEW
With respect to whether an eyewitness identification should
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.
HAWJIC 3.19A Show-Up Identification (eff. 2014) (brackets removed).
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be suppressed, we have held that questions of suggestiveness and
reliability are questions of law that are freely reviewable on
appeal. Kaneaiakala, 145 Hawai‘i at 240, 450 P.3d at 770
(cleaned up).
IV. DISCUSSION
A. The circuit court should have considered the effect of suggestiveness on the reliability of CW’s identification and the relevant factors provided by HAWJIC 3.19A.
Before the ICA, the disputed issue was
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 [CW’s] identification was reliable, notwithstanding that it was impermissibly suggestive.
The ICA determined that the circuit court erred because it was
required to weigh these additional considerations and failed to
do so in denying Jercy’s motion to suppress. We agree.
“A defendant is denied due process of law when the
procedure used to obtain an eyewitness identification admitted
at trial is ‘unnecessarily suggestive and conducive to
irreparable mistaken identification.’” Id. at 240, 450 P.3d at
770 (quoting State v. Masaniai, 63 Haw. 354, 362, 628 P.2d 1018,
1024 (1981)). However, “an eyewitness identification is not
inadmissible merely because the identification procedure was
impermissibly suggestive. Rather, whether an eyewitness
identification obtained through an impermissibly suggestive
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procedure is admissible depends upon the reliability of the
identification.” Kaneaiakala, 145 Hawai‘i at 240, 450 P.3d at
770 (cleaned up).
“While show-ups are permissible, they are inherently
suggestive.” State v. Cabinatan, 132 Hawai‘i 63, 76, 319 P.3d
1071, 1084 (2014). Accordingly, the key issue before the
circuit court was whether CW’s identification was reliable
notwithstanding the inherent suggestiveness of the show-up.
In vacating the circuit court’s decision, the ICA applied
Kaneaiakala. In Kaneaiakala, this court laid out the
considerations a trial court must weigh when assessing the
reliability of challenged show-up identifications:
[T]rial courts must, at minimum, consider any relevant factors set out in the Hawai‘i Standard Instructions governing eyewitness and show-up identifications, as may be amended, as well as any other relevant factors that may be set out in binding precedent in addressing whether, under a totality of circumstances, an impermissibly suggestive eyewitness or show-up identification is nonetheless sufficiently reliable to be admissible in evidence.
Kaneaiakala, 145 Hawai‘i at 247, 450 P.3d at 777 (emphases
added). The instructions “governing eyewitness and show-up
identifications” are HAWJIC 3.19 and HAWJIC 3.19A, respectively.
See id. (“[T]he factors a jury must consider in evaluating the
reliability of an eyewitness or show-up identification must also
be considered by a trial court in addressing admissibility of an
impermissibly suggestive eyewitness or show-up
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identification[.]” (emphasis added)). This court added that
“trial courts must also consider the effect of the
suggestiveness on the reliability of the identification in
determining whether it should be admitted into evidence.” Id.
at 248, 450 P.3d at 778. Thus, the circuit court was required,
“at minimum,” to consider any relevant factors in HAWJIC 3.19
and HAWJIC 3.19A, the “effect of the suggestiveness on the
reliability of the identification,” and “any other relevant
factors[.]” Id. at 247-48, 450 P.3d at 777-78.
Here, Jercy moved to suppress CW’s identification. The
circuit court held an evidentiary hearing and later issued
findings of fact (FOFs), conclusions of law (COLs), and an order
denying Jercy’s motion to suppress.
The parties do not dispute that the circuit court
considered the factors set forth under HAWJIC 3.19 in denying
Jercy’s motion. Indeed, the circuit court based its decision
exclusively on those factors. The circuit court did not,
however, consider the relevant factors listed in HAWJIC 3.19A or
the effect of suggestiveness on the reliability of CW’s
identification.
As an initial matter, the State does not challenge the
ICA’s determination that the circuit court failed to evaluate
the effect of suggestiveness on the reliability of CW’s
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identification.
As to HAWJIC 3.19A, the State argues that the circuit court
was not required to expressly address those factors. Regardless
of whether the circuit court was required to expressly address
the 3.19A factors, the issue is that the court gave no
indication that it based its decision on anything beyond the
factors enumerated in HAWJIC 3.19. But Kaneaiakala requires
more.
Six of the seven HAWJIC 3.19A factors were relevant to this
case. See infra Section IV.C.2. The circuit court was thus
required to consider these relevant factors. But there is no
indication in the record that the circuit court did so. As
stated, the circuit court’s FOFs, COLs, and order denying the
motion to suppress were based entirely on the HAWJIC 3.19
factors. At the hearing on Jercy’s motion, the circuit court
expressly addressed the HAWJIC 3.19 factors and then stated,
“And so for those reasons, I will deny the motion.”
The court’s only mention of the HAWJIC 3.19A factors came
right after it orally denied the motion: “I also, you know, if
this goes to trial, will include the HAWJIC 3.19[A] which talks
about the identification, the field show-up identification.”
This representation, coming after the oral denial of Jercy’s
motion, reflects that the circuit court did not evaluate the
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HAWJIC 3.19A factors in making its decision, but rather
delegated the evaluation of those factors to the jury.
The State contends that the circuit court did in fact
consider these factors, citing the court’s statements that it
was considering “the totality of the circumstances.” This
argument is unavailing. Again, the circuit court did not
indicate that its totality-of-the-circumstances balancing
included anything other than the HAWJIC 3.19 factors.
The State also argues that “Kaneaiakala itself cannot be
read logically as incorporating the factors in HAWJIC 3.19A in
its analysis” because the first HAWJIC 3.19A factor (i.e.,
whether the identification was the result of a suggestive
procedure) “is essentially the same as ‘the effect of
suggestiveness.’” We do not interpret these two factors as
being the same.
The first HAWJIC 3.19A factor inquires as to whether the
show-up procedure itself led to the identification (e.g.,
considering the impact of the suspect being handcuffed during
the field show-up). The “effect of suggestiveness,” on the
other hand, pertains to whether the circumstances surrounding
the identification affected the identification (e.g.,
considering the impact of HPD implying that the assailant would
be present in the field show-up). Although these considerations
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in some cases may be overlapping and inextricable to some
extent, they nonetheless highlight distinct concerns regarding
field show-ups.
Separately, the State argues that Jercy “never raised the
argument regarding the HAWJIC 3.19A factors. . . . The ICA
raised the HAWJIC 3.19A argument sua sponte, and even worse,
failed to request supplemental briefing on it.”
HRAP Rule 28(b)(4) provides:
If an appellate court, when acting on a case on appeal, contemplates basing the disposition of the case wholly or in part upon an issue of plain error not raised by the parties through briefing, it shall not affirm, reverse, or vacate the case without allowing the parties the opportunity to brief the potential plain-error issue prior to disposition.
The State is correct that the parties did not specifically
address in their briefings before the ICA whether Kaneaiakala
requires courts to consider the factors in HAWJIC 3.19A.
However, because the State raised this issue on certiorari, it
briefed the issue, and Jercy had an opportunity to do so as
well. Thus, supplemental briefing is neither necessary nor
warranted here.
Based on the foregoing, we find that the ICA was correct
when it concluded that the circuit court failed to consider the
relevant HAWJIC 3.19A factors and the effect of suggestiveness
in finding CW’s identification sufficiently reliable.
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B. The reliability of CW’s identification should have been assessed.
Although the ICA correctly concluded that the circuit court
did not address the relevant HAWJIC 3.19A factors and the effect
of suggestiveness, we hold that the reliability of CW’s
identification should have also been decided based on this
record.
“With respect to whether an eyewitness identification
should be suppressed, we have held that questions of
suggestiveness and reliability are questions of law that are
freely reviewable on appeal.” Kaneaiakala, 145 Hawai‘i at 240,
450 P.3d at 770 (cleaned up).
The ICA remanded the case to the circuit court for
proceedings consistent with its Summary Disposition Order. But
there was no indication from the ICA whether CW’s identification
would be admissible upon retrial. That is, it is unclear
whether the circuit court, upon remand, is to reevaluate Jercy’s
suppression motion under all the relevant Kaneaiakala factors or
simply exclude the identification evidence.
If Jercy’s suppression motion is to be reevaluated by the
circuit court, the court after considering the appropriate
factors may again end up denying the motion. There would then
be a new trial and Jercy would be retried with the same evidence
that existed in the first trial. This outcome would constitute
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an unnecessary expenditure of judicial resources and would be
unduly burdensome on the parties.
The latter scenario (i.e., CW’s identification evidence is
automatically excluded on remand) would not be appropriate
either. If CW’s identification were sufficiently reliable, it
would be unfair to the State, which presented argument on the
3.19A factors in opposing Jercy’s suppression motion, to exclude
the identification evidence simply because the circuit court did
not consider the relevant factors as required. Cf. People v.
Busija, 509 N.E.2d 168, 172 (Ill. App. Ct. 1986) (“[T]o order a
retrial of the question of the accused's guilt without first
determining there was reversible error in the first trial would
be uncalled for and wasteful.” (citation omitted)).
Instead, the circuit court should have been instructed,
based on this record, as to whether CW’s identification was
sufficiently reliable to be admissible. The record here is
sufficiently developed for a reviewing court to balance the
factors required by Kaneaiakala. Indeed, as stated above, the
parties presented argument on the HAWJIC 3.19A factors and the
effect of suggestiveness on the reliability of the
identification in briefing Jercy’s motion to suppress.
For the sake of finality, we opine on the merits of Jercy’s
suppression motion below.
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C. CW’s identification was not sufficiently reliable.
In reviewing whether a show-up identification is
sufficiently reliable for admissibility purposes, we are
required, “at minimum,” to consider the relevant factors in
HAWJIC 3.19 and HAWJIC 3.19A, the “effect of the suggestiveness
on the reliability of the identification,” and “any other
relevant factors[.]” Kaneaiakala, 145 Hawai‘i at 247-48, 450
P.3d at 777-78. We may consider the entire record, including
the trial record, to make this determination. See State v.
Kong, 77 Hawai‘i 264, 266, 883 P.2d 686, 688 (App. 1994) (“[W]hen
deciding an appeal of the pretrial denial of the defendant’s
motion to suppress, the appellate court considers both the
record of the hearing on the motion to suppress and the record
of the trial.”).
In this section, we evaluate the factors required by
Kaneaiakala and determine that, under the totality of the
circumstances, CW’s identification was not sufficiently reliable
for admissibility purposes. Thus, Jercy’s suppression motion
should have been granted.
1. HAWJIC 3.19 Factors
a. The opportunity of the witness to observe the person involved in the alleged criminal act.
CW had an opportunity to observe her attacker. CW’s
statement to HPD indicated that she “was able to turn around and
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look at [Jercy] asking him why he attacked her.” At trial, CW
also testified that she was able to see Jercy’s face during the
incident.
This factor weighs in favor of concluding that CW’s
identification was reliable.
b. The stress, if any, to which the witness was subject at the time of the observation.
CW was under substantial stress at the time of the
observation--she was being attacked. This factor weighs against
concluding that CW’s identification was reliable. See State v.
Cabagbag, 127 Hawai‘i 302, 310 n.9, 277 P.3d 1027, 1035 n.9
(2012) (citing Deffenbacher, et al., A Meta–Analytic Review of
the Effects of High Stress on Eyewitness Memory, 28 Law & Hum.
Behav. 687 (2004) (finding “considerable support for the
hypothesis that high levels of stress negatively impact . . .
eyewitness memory”)).
c. The witness’s ability, following the observation, to provide a description of the person.
CW provided a verbal statement describing the assailant to
HPD prior to the field show-up. However, due to a language
barrier, HPD was unable to document CW’s description until after
the field show-up. Thus, the documented description may have
been influenced by CW’s participation in the show-up procedure.
Although we find that this factor weighs in favor of
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concluding that CW’s identification was reliable, we assign it
less weight because CW’s documented description may have been
influenced by the field show-up. See infra Section IV.C.3.
d. The extent to which the defendant fits or does not fit the description of the person previously given by the witness.
CW’s description, provided after the field show-up,
indicated that the assailant was a 5’4”-to-5’6” male in his
twenties to thirties with black hair and brown complexion. CW
described the assailant as wearing a black long-sleeved jacket
and a black facemask.
At the field show-up, Jercy was wearing a black short-
sleeved t-shirt and dark blue jeans. Jercy testified that he is
Chuukese and was 5’6” and 140 pounds on the day of the incident.
Aside from the shirt worn by the assailant, Jercy generally
matched CW’s description. Thus, this factor weighs in favor of
concluding that CW’s identification was reliable. However, this
factor should hold slightly less weight because CW’s description
may have been influenced by her participation in the field show-
up. See infra Section IV.C.3.
e. The cross-racial or ethnic nature of the identification.
The field show-up did not involve cross-racial
identification. Both CW and Jercy testified that they are
Chuukese. This factor weighs in favor of concluding that CW’s
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identification was reliable.
f. The witness’s capacity to make an identification.
CW testified that although she uses reading glasses and was
not wearing them on the day of the incident, she did not need
them to see Jercy. There was no evidence relating to any other
physical or mental limitations that hindered her ability to make
an identification. This factor weighs in favor of concluding
that CW’s identification was reliable.
g. Evidence relating to the witness’s ability to identify other participants in the alleged criminal act.
There was no evidence of any other participants in the
alleged criminal act. This factor does not weigh into our
analysis.
h. Whether the witness was able to identify the person in a photographic or physical lineup.
There was no evidence of a photographic or physical lineup
being presented to CW for her identification. This factor does
not weigh into our analysis.
i. The period of time between the alleged criminal act and the witness’s identification.
The field show-up occurred just over an hour after CW was
attacked. Because CW was able to participate in the field show-
up shortly after the incident, this factor weighs in favor of
concluding that CW’s identification was reliable.
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j. Whether the witness had prior contacts with the person.
CW had never seen Jercy prior to the day of the incident.
There is no evidence suggesting that CW had prior contacts with
Jercy. This factor weighs against concluding that CW’s
identification was reliable, as CW’s identification would have
been more reliable had she had prior contacts with Jercy.
k. The extent to which the witness is either certain or uncertain of the identification and whether the witness’s assertions concerning certainty or uncertainty are well-founded.
Following the field show-up, CW related to HPD that she was
“sure that [Jercy] was the person who attacked her.” She stated
at trial that she remembered Jercy from the incident. However,
there are concerns as to how “well-founded” CW’s certainty was,
given the suggestiveness of the field show-up. See infra
Section IV.C.3. Further muddying the basis of CW’s
identification is CW’s statement that the perpetrator was
wearing a facemask during the incident. Thus, we assign less
weight to this factor, which weighs in favor of concluding that
CW’s identification was reliable.
l. Whether the witness’s identification is in fact the product of their own recollection.
CW testified that her identification was based on her
recollection of Jercy’s face and indicated the same following
the field show-up. As with the previous factor, there is
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concern about the effect the suggestiveness had on CW’s
recollection. See infra Section IV.C.3. We weigh this factor
slightly in favor of concluding that CW’s identification was
reliable.
m. Any other evidence relating to the witness’s ability to make an identification.
CW testified that the assailant was wearing a facemask when
he was attacking her. Although CW stated that she could see his
eyes and nose clearly, we find that the facemask negatively
affected the reliability of CW’s identification. This factor
weighs against concluding that CW’s identification was reliable.
2. HAWJIC 3.19A Factors
a. 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.
On this record, this factor relating to the suggestiveness
of the procedure overlaps with the effect of suggestiveness on
the reliability of CW’s identification. See infra Section
IV.C.3. It is appropriate to consider the two factors as one.
b. 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.
It appears that HPD indicated to CW that a suspect was
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present in the field show-up. 6 HPD Corporal John Agena (Corporal
Agena), who met with CW at her home shortly after the attack,
testified that HPD told CW prior to the field show-up that HPD
“had a male in custody.” CW testified that HPD told her that
“they found [the assailant and she] would identify him before
[going] to the hospital.”
HPD also apparently failed to inform CW that the
perpetrator may or may not have been in the procedure. Officer
Tomishima, who accompanied CW during the field show-up,
testified that he was unable to instruct CW that the perpetrator
may or may not be present in the show-up due to the language
barrier.
Because HPD was unable to warn CW that the assailant may or
may not have been in the show-up procedure, this factor weighs
against concluding that CW’s identification was reliable.
c. 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.
There is no evidence that Jercy was required to wear any
distinctive clothing. However, during the field show-up, Jercy
was standing in front of a uniformed HPD officer with his hands
6 Body-worn camera footage capturing HPD’s conversations with CW prior to the field show-up were never entered into the record.
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handcuffed behind his back.7
Officer Tomishima testified that he was unable to see that
Jercy was handcuffed from where he was in the ambulance as he
accompanied CW during the field show-up. Although it is
possible that CW did not see that Jercy was handcuffed, the
parties did not dispute that Jercy “otherwise appeared to be in
police custody,” particularly given that he was standing in
front of a uniformed HPD officer.
This factor weighs against concluding that CW’s
identification was reliable.
d. 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.
The record does not reflect that CW was exposed to any
opinions, descriptions, or identifications made by other
witnesses. The record does not suggest that CW discussed the
assailant with neighbors Hernandez or Wainit. Officer Tomishima
and Corporal Agena both testified that they did not prompt CW or
suggest in any way the suspect’s appearance prior to the field
show-up.
However, it is possible that CW’s identification was
7 Officer Benton testified that Jercy was handcuffed as a safety precaution, “due to the assault concerns.”
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influenced by HPD’s statements regarding the field show-up
procedure. 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.” This testimony suggests that CW believed her
assailant would be present in the field show-up.
This potential bias may have influenced CW’s
identification. Accordingly, we find that this factor weighs
against concluding that CW’s identification was reliable.
e. Whether other participants in the show-up were similar in appearance to the defendant.
There was no evidence of other participants in the field
show-up. Thus, this factor does not weigh into our
determination.
f. Whether the witness’s identification was made spontaneously and remained consistent thereafter.
It appears that CW’s identification was prompted. In one
of the HPD body-worn camera videos, as Jercy was walked to the
back of the ambulance for the field show-up, someone--likely the
emergency medical technician (EMT) who was sitting in the
ambulance with CW--can be heard asking, “That’s the guy? You
can see him?” Immediately after, CW exclaimed at Jercy several
times, “Why you punch me?” It is unclear from the video whether
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CW said anything prior to the EMT prompting her.
Although it is possible that CW did not understand the
EMT’s prompting (due to the language barrier) and thus
identified Jercy spontaneously, we hesitate to draw that
conclusion. Instead, it is plausible that CW was prompted by
the EMT’s statements, particularly in light of our earlier
concern about CW apparently being told that HPD found the
assailant and she would identify him on the way to the hospital.
CW’s identification remained consistent thereafter.
Because CW’s identification was likely prompted, we weigh
this factor against concluding that CW’s identification was
reliable.
g. Any other circumstance relating to the witness’s ability to make an identification.
The field show-up occurred as CW was on the way to the
hospital in an ambulance. CW was strapped to a gurney, wearing
a neck brace, and attached to other medical equipment in the
back of the ambulance. This was obviously a stressful situation
for her that may have hindered CW’s ability to make a reliable
identification.
This factor weighs against concluding that CW’s
identification was reliable.
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3. Effect of Suggestiveness on the Reliability of Identification
The ICA stated the following:
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 [c]ircuit [c]ourt 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.
We generally agree with the ICA’s assessment. We also
reiterate that, prior to the field show-up, HPD did not document
CW’s description of the assailant or warn her that the assailant
may or may not be present.
These circumstances indicate that the suggestiveness of the
show-up procedure diminished the reliability of CW’s
identification. Accordingly, this factor weighs against
concluding that CW’s identification was reliable.
4. Totality of the Circumstances
Under the totality of the circumstances, we find that CW’s
identification was not sufficiently reliable to overcome the
impermissible and inherent suggestiveness of the field show-up.
More than half of the relevant factors weigh against concluding
that CW’s identification was reliable. Of those that weigh in
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favor of finding the identification was reliable, half are
dampened by HPD’s inability, prior to the field show-up, to
obtain a written statement from CW and warn CW that the
perpetrator may or may not be present. In balancing the
factors, we find that CW’s identification was impermissibly
influenced by the suggestiveness surrounding the field show-up.
In light of the Kaneaiakala court’s concern that
“misidentifications are one of the leading causes of wrongful
convictions[,]” 145 Hawai‘i at 242, 450 P.3d at 772, we conclude
that CW’s identification was not sufficiently reliable to
overcome the suggestiveness of the field show-up. We therefore
hold that Jercy’s suppression motion should have been granted.
D. The circuit court’s error was not harmless beyond a reasonable doubt.
Since Jercy’s suppression motion should have been granted,
we next analyze whether the court’s error was harmless beyond a
reasonable doubt. See State v. Jones, 148 Hawai‘i 152, 165, 468
P.3d 166, 179 (2020) (“In a criminal case, if there is a
reasonable possibility that error might have contributed to a
conviction, then the error is not harmless beyond a reasonable
doubt, and the judgment of conviction on which the error may
have been based must be set aside.” (citation omitted)).
The State argues that even if the circuit court erred in
admitting CW’s identification evidence, such error was harmless.
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The State reasons that “[b]ecause the jury was given an
instruction based on HAWJIC 3.19A, the seven factors were
addressed by the jury pursuant to that instruction.” The State
also asserts that “there was strong evidence identifying [Jercy]
as the assailant even without [CW’s] identification.” The
State’s arguments are not persuasive.
First, it is unlikely that the circuit court’s general
instruction negated the prejudicial effect of the evidence of
CW’s identification. Cf. State v. Rogan, 91 Hawai‘i 405, 415,
984 P.2d 1231, 1241 (1999) (holding that general instructions to
jury that counsels’ arguments were not evidence were unlikely to
“negate[] the prejudicial effect” of the prosecutor’s
inflammatory comments). CW testified about her identification
to the police while in the ambulance and identified Jercy as the
assailant in open court on July 20, 2023. The circuit court did
not read HAWJIC 3.19A to the jury until July 26, 2023, six days
later. We cannot conclude that the erroneous admission of CW’s
identification was harmless beyond a reasonable doubt.
Second, the State’s “strong evidence” identifying Jercy as
the assailant was not nearly strong enough to render the circuit
court’s error harmless beyond a reasonable doubt. As this court
has stated:
With respect to assessing whether the erroneous admission of evidence was harmless beyond a reasonable doubt, . . . mere sufficiency of the evidence to support the jury
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verdict, apart from that aspect of the case affected by the error, would not be enough. However, . . . where there is a wealth of overwhelming and compelling evidence tending to show the defendant [is] guilty beyond a reasonable doubt, errors in the admission or exclusion of evidence are deemed harmless.
State v. Spies, 157 Hawai‘i 75, 102, 575 P.3d 708, 735 (2025)
(emphasis added) (cleaned up).
Here, the State posits that “there was ample evidence from
the testimony of Mr. Hernandez that [Jercy] was the person who
committed the offense.” Although Hernandez did identify Jercy
as the perpetrator, Hernandez also conceded that he lost sight
of the assailant for ten to fifteen seconds. On the other hand,
Jercy testified that he was on the way to work when Hernandez
approached him at the bus stop and denied assaulting CW. From
the trial testimony, a reasonable juror could have inferred that
Hernandez misidentified Jercy as the assailant after briefly
losing sight of CW’s attacker. We thus cannot conclude that
there was a “wealth of overwhelming and compelling evidence
tending to show [that Jercy is] guilty beyond a reasonable
doubt[.]” Id. at 102, 575 P.3d at 735.
Further, the State relied on CW’s identification at trial,
highlighting her identification in its opening statement and
closing argument. CW also testified about her identification in
the ambulance and identified Jercy as the assailant in open
court. Accordingly, given the importance of CW’s identification
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to the State’s case, there is “a reasonable possibility that the
[circuit court’s] error might have contributed to [Jercy’s]
conviction.” Id. at 102, 575 P.3d at 735. We cannot conclude
that the circuit court’s admission of the identification
evidence was harmless beyond a reasonable doubt.
On remand, evidence of CW’s field show-up identification of
Jercy shall be suppressed and excluded.
V. CONCLUSION
The ICA’s March 5, 2026 Judgment on Appeal is affirmed to
the extent it vacated the circuit court’s July 28, 2022 Findings
of Fact, Conclusions of Law and Order Denying Defendant’s Motion
to Suppress Identification and the November 21, 2023 Amended
Judgment of Conviction and Sentence. The case is remanded to
the circuit court for further proceedings consistent with this
opinion.
Robert T. Nakatsuji /s/ Vladimir P. Devens for petitioner /s/ Sabrina S. McKenna Benjamin E. Lowenthal /s/ Todd W. Eddins for respondent /s/ Lisa M. Ginoza
/s/ Lisa W. Cataldo