No. 29044 Thursday, December 1, 2011, 9 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. BRANDON M. VALEROS, Petitioner/Defendant-Appellant.

(Assault in the Second Degree)

Attorney for Petitioner/Defendant-Appellant: John M. Tonaki, Public Defender, and Karen T. Nakasone, Deputy Public Defender

Attorney(s) for Respondent/Plaintiff-Appellee: Keith M. Kaneshiro, Prosecuting Attorney, and Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 09/14/11.

COURT: MER, CJ; PAN, SRA, JED, & SSM, JJ.

The above oral argument is set in:

Supreme Court courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Defendant-Appellant Brandon Valeros Petitioner) filed an Application for Writ of Certiorari seeking review of the June 3, 2011 judgment of the ICA, affirming Petitioner’s conviction and sentence for Assault in the Second Degree. Before trial, Petitioner filed a Notice of Alibi pursuant to Hawaiʻi Rules of Penal Procedure (HRPP) Rule 12.1 (2007), and informed Respondent/Plaintiff-Appellee State of Hawai`i (Respondent or the prosecution) that he would call alibi witness Timothy Santiago (Santiago) to testify to Petitioner’s location at the date and time of the incident. Prior to trial, Petitioner’s counsel informed the circuit court and Respondent that Santiago could not be found, and, thus, Santiago would not be called as an alibi witness. However, during the testimony of Respondent’s last witness in its case in chief, Respondent notified the court and Petitioner that it planned to call Santiago to testify to rebut Petitioner’s alibi. Petitioner argued that Respondent violated HRPP Rule 12.1, and, thus, Santiago should not be allowed to testify. Over Petitioner’s objection, Santiago was allowed to testify that although he did not recall the events, he remembered chasing a male. After Santiago’s testimony, Respondent’s investigator testified that Santiago told him that Santiago and Petitioner were chasing two males at the location where the alleged assault took place. During closing argument, the prosecutor argued that Santiago’s testimony abrogated Petitioner’s alibi defense.

In his Application, Petitioner asks whether the court’s admission of Santiago’s testimony violated HRPP Rule 12.1, and whether the prosecution committed prosecutorial misconduct in closing argument by using Santiago’s statements to the investigator as the truth, rather than as impeachment material.