ICA rejects appeal alleging error for failure to provide special jury instruction for eyewitness identification

On June 27, 2011, the Hawai’i Intermediate Court of Appeals issued its decision in State v. Cabagbag, No. 30682 (Summary Disposition Order- unpublished, panel: Foley, Presiding Judge, Reifurth and Ginoza, JJ.) This is an appeal from the Circuit Court of the First Circuit, Hon. Karen S. S. Ahn, presiding. Appearing on the briefs were Deputy Public Defender James S. Tabe, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Stephen K. Tsushima, Esq. for Plaintiff-Appellee.

Defendant was convicted by a jury of Unauthorized Control of a Propelled Vehicle. On appeal, Defendant contended that the Circuit Court committed plain error by failing to provide a special jury instruction regarding eyewitness identification and that a "cautionary jury instruction" regarding eyewitness identification "should be required" in any case in which eyewitness identification is a critical issue.

In rejecting Defendant’s arguments, the ICA held: “The opening statement by defense counsel, the cross-examination of Officer Tomimbang, defense counsel's closing argument, and the general instructions given by the Circuit Court adequately directed the attention of the jury to the identification evidence.”

Affirmed.