Oral Argument Before the Hawaii Supreme Court
No. 30682 Thursday, February 16, 2012, 9:30 a.m.*
*(1st Amended 12-5-11)
Joseph Wallace Rider Auditorium
Farrington High School
1564 North King Street
Honolulu, HI 96817-4299
STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. STEVE C. CABAGBAG, JR., Petitioner/Defendant-Appellant.
(Unauthorized Control of a Propelled Vehicle)
Attorneys for Petitioner/Defendant-Appellant: John M. Tonaki, Public Defender, and James S. Tabe, Deputy Public Defender
Attorneys 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 11/14/11.
COURT: MER, CJ; PAN, SRA, JED, & SSM, JJ.
Petitioner/Defendant-Appellant Steve C. Cabagbag, Jr. (Petitioner) filed an Application for Writ of Certiorari seeking review of the September 13, 2011 judgment of the ICA filed pursuant to its June 27, 2011 Summary Disposition Order, affirming the Judgement of Conviction and Probation Sentence entered by the circuit court of the first circuit (the court).
Petitioner allegedly stole a truck from a storage facility on February 3, 2010, and several tools from a construction site on February 18, 2010. Petitioner was found guilty of (1) Unauthorized Control of a Propelled Vehicle, HRS § 708-836 (Supp. 2010); and (2) Theft in the Second Degree, HRS § 708-831 (Supp. 2010).
During trial, Petitioner’s defense was that eyewitness testimony was the only evidence linking him to the crimes and that the testimony was unreliable. In his petition, Petitioner contends that the court committed plain error in failing to provide a cautionary instruction explaining to the jury what factors it should consider in assessing the accuracy of eyewitness identification testimony. Petitioner contends that the instruction should be given whenever eyewitness testimony is critical to the case. In the alternative, Petitioner argues that the court nevertheless committed plain error in not providing a special instruction because the jury’s attention was not adequately drawn to the weaknesses of the eyewitness identification testimony.