State v.

Okumura
Supreme Court of Hawaii
May 4, 1995

A. Facts of the case

Following a consolidated jury trial, defendant-appellant Leslie M. Okumura was

convicted of two counts of burglary in the first degree and one count of criminal
conspiracy to commit burglary, and defendant-appellant Rogelio Mata was convicted of
one count of criminal conspiracy to commit burglary. According to the prosecution's
theory of the case, Okumura and Mata were involved in several burglaries in the Hawaii
Kai area. These are the Parsa burglary, Ihara burglary, Sano burglary, and Kobayashi
burglary.

Mata was not alleged to have participated in any of the burglaries but was alleged to
have identified homes to burglarize and, as an officer of the Honolulu Police Department
(HPD), to have kept his cohorts informed of the police investigations of the burglaries.
Okumura, who is a locksmith by trade, allegedly committed the actual burglaries with
the assistance of Alvin Morgan, Stephen Kona, and Richard Geffken. Morgan and Kona
subsequently entered into plea agreements with the prosecution and testified against
Okumura and Mata. Geffken did not participate in the trial in any manner and the record
does not reveal the status of the single charge against him.

Parsa Burglary - January 27, 1990

Fourteen year old Natalie Parsa was in the residence at the time and called the
police to report the burglary.

Morgan and Kona testified that they and Okumura committed the burglary following a
tip from Mata. Okumura entered the residence from a second floor balcony sliding door,
Morgan acted as a lookout, and Kona drove the getaway car. Mata had told them that
no one would be home and that cash and jewelry would be there.

Touri Parsa testified that Mata and her brother were friends. Among the items taken
were $5000 in cash, a gold Rolex watch, jewelry, and a camera.

Okumura denied ever having been to the Parsa residence, but admitted that on one
occasion he had bought jewelry and Rolex watches from Morgan. Mata denied any
involvement in the Parsa burglary.

Ihara Burglary - March 31, 1990

No one was home at the time but Richard Fukuda, who lived across the street and
was the Iharas' attorney, apparently saw some suspicious activity and notified the police
of a possible burglary on the morning of April 1, 1990.

Morgan testified that he, Okumura, and Geffken committed the burglary based on a
tip from Mata. Okumura entered the house using a key which he had brought, Morgan
entered the house briefly but primarily acted as a lookout outside, and Geffken drove.
During the burglary, Okumura called Mata on his cellular phone and told Mata about the
burglary and arranged to meet at a Zippy's restaurant later.

Mata denied involvement in the burglary but admitted that he had an office above the
Iharas' garage and that he had referred Okumura to the Iharas to open a vault.
Okumura denied involvement in the burglary but admitted that he had been to the Ihara
residence on previous occasions to work on the vault and to fix the door on Mata's
office.

Sano Burglary - July 15, 1990

The Sanos were out of town on that day and no one was at home when the burglary
occurred. Ethel Isara, who was housesitting, discovered the burglary later and called the
police.

Kona testified that he and Okumura committed the burglary based on a tip that
Okumura had been given. Kona dropped Okumura off and picked him up but was
unaware of any of the details of the burglary.

Mata denied any involvement in the burglary but admitted that he knew the Sanos
would be out of town because HPD Officer Guy Nahale, the Sanos' son-in-law who
resided at the house, had told him to watch the house while they were away. Okumura
denied any involvement in the burglary.

Kobayashi Burglary – July 18, 1990

Toko Kobayashi and his fiance were at home at the time, interrupted the burglars,
and called the police.

Morgan testified that he, Okumura, and Kona committed the burglary following a tip
that Okumura had been given. Okumura entered the house through a rear bedroom
window, Morgan acted as a lookout, and Kona drove. After they were discovered,
Morgan and Okumura fled on foot. While running away, Morgan dropped a can of mace
and Okumura's cellular phone that he had been carrying.

Kona testified that while waiting for Morgan and Okumura, he met with Mata who
was responding to the burglary report. After Kona picked up Okumura, they returned to
the scene to look for Morgan and the cellular phone. While searching, two Japanese
men and a "haole" lady approached the car and shone a light inside. Sometime after the
burglary, Kona spoke with Mata who told him not to worry because the description was
of a Mexican and not to mention their conversation to anyone.

Kobayashi testified that after discovering the burglary, he saw two people running
from his home. Kobayashi pursued them and got close enough to them to get a look at
their faces before they jumped a fence and ran away. Later that night, Kobayashi found
a cellular phone. Then, Kobayashi saw a suspicious slow-moving car and as it drove by
he shined his flashlight in the window. When talking to police later, Kobayashi described
the men as one caucasian and one latin or mexican. The cellular phone that Kobayashi
found was identified by a Honolulu Cellular employee as belonging to Okumura.

Okumura denied ever having been to the Kobayashi residence but admitted that he
lent Morgan his cellular phone and that he knew Morgan and Kona were planning to
commit a burglary that night. Mata denied any involvement in the burglary.

B. Issue

During the jury trial and cross-examination of Kona, Kona mentioned that the police
had given him a polygraph test. The appellants made a motion for mistrial on the ground
that the prosecution had violated the discovery rules by failing to disclose the polygraph
results. The court denied the motion for mistrial. The appellants then made a motion to
compel discovery of the polygraph results. This motion was also denied.
 Hence, the issue in this case, in line with polygraphy, is whether the prosecution
had a duty to disclose the results of Kona's polygraph examination.

C. Ruling

According to the Hawaii Rules of Penal Procedure, Rule 16 (b)(1)(iii), “The

prosecutor shall disclose to the defendant or the defendant's attorney the following
material and information within the prosecutor's possession or control: any reports or
statements of experts, which were made in connection with the particular case or which
the prosecutor intends to introduce, or which are material to the preparation of the
defense and are specifically designated in writing by defense counsel, including results
of physical or mental examinations and of scientific tests, experiments, or comparisons”.

Mata essentially contends that a polygraph examination is a "scientific test,

experiment, or comparison" within the meaning of HRPP Rule 16(b)(1)(iii), and that the
results of the polygraph examination taken by Kona should therefore have been
disclosed by the prosecution pursuant to Mata's request.

The Supreme Court of Hawaii disagreed. Even assuming that a polygraph

examination is a "scientific test" within the meaning of HRPP Rule 16(b)(1)(iii), the
Supreme Court do not believe that the prosecution would be required to disclose the
results thereof because of the following reasons:

a. there has been no showing of bad faith on the part of the prosecution by
attempting to get this information into evidence (State v. Landry);

b. according to well-established precedent in this jurisdiction, polygraph results

are not admissible at trial whether offered by the prosecution or the defense
(State v. Antone);

c. since polygraph evidence is inadmissible, the trial court eliminated the

prosecution's duty to disclose the polygraph examination results (State v.
Montalbo);

d. the Supreme Court see no way in which the polygraph examination results
could have been material to the preparation of the defense and HRPP Rule
16(b)(iii) gives a defendant a right to discovery conditioned on the materiality
of the item to the preparation of the defense (State v. Estrada);

e. defense counsel failed to offer any tenable reason to the trial court why he
should be given the results; and

f. no further mention of the polygraph was allowed because the trial judge
minimized any prejudicial effect that the polygraph result may have had on
the jury.

The Supreme Court vacates Okumura's conviction and sentence on the

conspiracy charge and remand for a new trial. In addition, Okumura's convictions on the
burglary charges were affirmed but remand to the circuit court for clarification of the
record with respect to its decision to impose extended terms of imprisonment. Finally,
Mata's conviction on the conspiracy charge was affirmed.