Professional Documents
Culture Documents
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LAWRENCE L. TONG
ANDREA HATTAN
Office of the United States Attorney
Prince Kuhio Federal Building
300 Ala Moana Blvd Ste 6100
Honolulu, HI 96850
ALEXANDER SILVERT
Office of the Federal Public
Defender
PJKK Federal Building
300 Ala Moana Blvd Rm 7-104
Honolulu, HI 96850
Official Court
Reporter:
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Honolulu, Hawaii
December 4, 2014
8:40 A.M.
APPEARANCES:
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I N D E X
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EXAMINATIONS
NIALL SILVA
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LOUIS KEALOHA
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E X H I B I T S
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GOVERNMENT'S:
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DEFENDANT'S:
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THE CLERK:
a jury trial.
record.
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(8:40 A.M.)
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office.
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THE COURT:
All right.
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Mr. Silvert.
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MR. SILVERT:
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Good morning,
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THE COURT:
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Will it be you or
We
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MR. TONG:
THE COURT:
MR. TONG:
Thank you.
before?
THE COURT:
MR. TONG:
Counsel.
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U.S. Attorney.
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My
With me
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know any of you and I wasn't privy to the proceedings the other
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day.
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I assume that the other day you learned what this case
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was about.
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mailbox.
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it away.
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Kahala.
mailbox that says U.S. Mail on it, the type that you see at
City Mill.
ornate.
It was
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it.
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that the mailman could use to slide the mail into the mailbox.
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there, it was sticking up, and that at the top of the pedestal
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used to secure the mailbox, but the mailbox itself was gone.
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investigation.
And the reason for that is that the Kealoha house had a
security system.
because they wanted to protect Chief Kealoha and his wife from
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You'll hear
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that the images were being recorded on computer, that the date
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and time stamped on the image matched the date and time of the
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incident.
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He checked to see
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night before.
the driveway.
nothing happens.
The
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cargo shorts, the type with the big pockets that you can stuff
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this, puts his arms around it, yanks it off the pedestal.
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then takes this mailbox, goes to the car, opens the door, puts
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video.
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very deliberate.
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He
It was
Now, I'll be the first to tell you that when you see
the videos, they are not real clear.
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high-def television, where you can see every pore on the face,
video is black and white, and it's not the clearest, but it was
The
You'll hear that the HPD detectives took the video and
defendant.
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he's known the defendant longer than he's known his wife.
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house.
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defendant.
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They
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In fact,
There is a family
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He is part
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He had
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build.
The
He has a very
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arms.
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recognize that.
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defendant.
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The witnesses
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and said, you're under arrest for theft in the second degree, a
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station.
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reasons.
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He went to the
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Inspection Service.
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the mailbox.
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You're going to
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hear -- you'll see the video, you'll hear the eyewitnesses who
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long-standing relationship.
I saw a
how.
Katherine
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family, and, like many large families, there are good times,
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their residence.
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renovations.
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residence.
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in the area.
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painting work.
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over there.
As a matter
civil lawsuit where people in the Puana family are arguing over
money.
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Katherine
condo.
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claims where the defendant and his mother are suing Katherine
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Kealoha claiming that she stole money, claiming that she took
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Katherine
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day.
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his niece.
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long.
sure you will conclude that a mailbox was destroyed, that the
event was captured on tape, and the only issue for you to
witnesses and decide whether they are credible, and use your
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THE COURT:
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opening?
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MR. SILVERT:
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THE COURT:
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MR. SILVERT:
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the jury.
Good morning.
Good morning, ladies and gentlemen of
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You'll
You're
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And Mr. Tong said that it's grainy, it's hard to see, and it's
have to be, at the end of this case, the judge and jury of
You're going to
him.
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And the
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Kealoha, Chief Louis Kealoha, and Bobby Nguyen, all very close
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on that video.
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They're
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It is
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look at that video, and look at the evidence, and look at the
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evidence from the government that the mail in the mailbox was
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MR. TONG:
I will.
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THE COURT:
I agree.
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MR. SILVERT:
All right.
Sustained.
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You will hear from the first witness through the end that
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through my cross.
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to say that they looked at the video, and it's not him, and why
of 2012.
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my client a house.
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of it.
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It's pending.
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you're going to hear about because what happens here will have
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client for the reason to help them discredit him here today so
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They
On
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through the arrest and never stepped back and said, you know
it.
show you why they did that, why they wanted to control the
government.
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as the perpetrator.
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You're going to hear that the HPD from day one did not
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How is that?
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vandalized repeatedly.
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during this time period who are doing things at their house,
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Shots
No
From day one, the evidence will show the only person
they went after was Mr. Puana.
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was the person who had the audacity to file a civil lawsuit
about her job, it's about her license to practice law, that's
Kealoha, words that you're going to hear from her own mouth,
against me?
Any
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grandmother.
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reasonable doubt, that is the burden, and I'm going to hold you
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to your oath at the end of this case and ask you to return a
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THE COURT:
All right.
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MR. TONG:
Silva.
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THE COURT:
You may.
MR. TONG:
THE COURT:
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Thank you.
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(Witness sworn.)
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THE CLERK:
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THE WITNESS:
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alpha.
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November, India,
DIRECT EXAMINATION
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BY MR. TONG:
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Good morning.
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Okay.
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Department.
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Yes.
And can you tell the jury what your formal education
consists of?
degree.
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Yes.
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you have?
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intelligence unit.
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the HPD?
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Yes.
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And did you spend any time working in the video unit for
Now, you said that your last assignment at HPD was with
Yes.
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I was a tech.
things.
Yes.
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Yes, sir.
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Yes, sir.
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Okay.
Yes.
Do
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security system.
Okay.
Yes.
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Footage?
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Yes.
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of?
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device.
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Yes.
It could.
Yeah.
All right.
residence?
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and I went to where the location of the device was, made sure
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it was operating correctly, checked the date and time, and then
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monitor.
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So you have to, like, close down the system for a moment, take
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the hard drive out and put another one, and then restart the
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system.
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But when you stop the system, it's just the recording
part.
continuously.
was operational?
correct.
Oh, the system was operational, and the date and time was
Okay.
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Yes.
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Okay.
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Yes.
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footage.
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that correct?
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Yes.
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Okay.
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Oh, yes.
11:30 p.m.
into evidence?
And after you saw that footage, what exactly did you put
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the event and after the event and then a bunch of stills of the
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the format?
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And the items that you submitted into evidence, what was
Yes.
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MR. TONG:
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THE COURT:
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You may.
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MR. TONG:
may.
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THE COURT:
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All right.
Thank you.
Is there any
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MR. SILVERT:
THE COURT:
Okay.
MR. SILVERT:
THE COURT:
All right.
dire.
BY MR. TONG:
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Mr. Silva, I believe you have been handed one DVD and one
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identification.
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Yes, sir.
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item?
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Yes.
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It is a CD that I submitted.
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the hard drive that you recovered from the Kealoha residence on
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Yes.
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MR. TONG:
Exhibit 2 first, and then I'll move them both in for voir dire.
THE COURT:
All right.
BY MR. TONG:
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Okay.
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Yes.
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MR. TONG:
received.
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MR. SILVERT:
dire?
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THE COURT:
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You may.
VOIR DIRE EXAMINATION
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BY MR. SILVERT:
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Yes.
-- is that correct?
correct?
the video.
I don't know.
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Yeah.
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Oh, yeah.
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evidence?
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No.
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Many hours.
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MR. SILVERT:
Thank you.
THE COURT:
to resolve it now?
sidebar.
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MR. TONG:
of questions.
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THE COURT:
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BY MR. TONG:
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Yes, sir.
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Yes, sir.
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Yes, sir.
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Yes.
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In your review of the entire hard drive, did you see any
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Yes.
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and 2?
Yes.
No.
MR. TONG:
THE COURT:
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MR. TONG:
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THE COURT:
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MR. SILVERT:
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All right.
Your Honor, I have a significant
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THE COURT:
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(Sidebar.)
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THE COURT:
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All right.
So you can.
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MR. TONG:
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MR. SILVERT:
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hard drive.
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hard drive.
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that's the evidence, not what he took from it, and they're not
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offering that.
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any of the video from a two-day period of time, and I can show
evidence.
in their response.
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THE COURT:
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All right.
MR. TONG:
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(End of sidebar.)
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THE COURT:
Exhibits 1 and 2.
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So I object
received.
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THE COURT:
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MR. TONG:
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into the case, I'm not sure where the original court exhibits
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are.
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the pictures?
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THE COURT:
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MR. TONG:
Mr. Nakamura?
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to Mr. Silva.
THE CLERK:
MR. TONG:
THE CLERK:
THE COURT:
All right.
BY MR. TONG:
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Would you
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Okay.
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Yes.
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depict the images that were on the hard drive that you
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recovered?
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those photographs.
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MR. TONG:
And
Yes, sir.
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THE COURT:
MR. SILVERT:
THE COURT:
and is overruled.
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Any objection?
Over my objection I made before.
All right.
It's received.
MR. TONG:
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please.
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BY MR. TONG:
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Officer Silva --
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THE CLERK:
Your Honor?
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THE COURT:
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THE CLERK:
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MR. TONG:
Okay.
Okay.
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screens working?
I see nods.
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BY MR. TONG:
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correct?
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Yes.
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Yes.
MR. TONG:
THE CLERK:
In the corner.
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MR. TONG:
Left or right?
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BY MR. TONG:
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Okay.
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those of us civilians?
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Yes.
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All right.
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Yes.
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Okay.
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No artwork, sir.
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that was.
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mailbox?
-- at the cursor.
All right.
Yes.
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photograph?
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Excuse me?
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purpose?
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you review the video on the software you're able to see the
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date and time stamp on the video, but when you download it to a
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disk, you lose the date and time on the video, but when you
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take still shots, the still shots retain the date and time.
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date and time according to where the photos are taken in the
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video.
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Yes.
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Okay.
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Yes.
MR. TONG:
THE COURT:
MR. TONG:
THE COURT:
MR. SILVERT:
Thank you.
You may.
I have nothing further.
Thank you.
Thank you.
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BY MR. SILVERT:
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Yes, sir.
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Yes.
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downloaded that day, did you put the time stamp on them?
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The videos -- not the still photos, but the videos, the
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clips?
Right.
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reference the video, so you know what the time is on the video.
Correct, sir.
And the hard drive itself, you don't know where that is?
No, sir.
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was needed.
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Yes, sir.
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No one else?
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No one else.
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Yes.
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answer, right?
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Yes, sir.
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many times, you know how to say, I'm not sure, correct?
You
Is that correct?
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Yes.
videos?
It depends.
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MR. SILVERT:
triple Q -- quadruple Q?
THE COURT:
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MR. SILVERT:
witness.
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THE COURT:
All right.
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THE CLERK:
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THE COURT:
Yes.
Yes.
So the jury --
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at his screen.
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BY MR. SILVERT:
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Yes, sir.
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Yes.
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Six cameras?
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Yes.
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Yes.
You're correct.
Six cameras.
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time, right?
Right.
before, correct?
No.
No.
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correct?
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Yes.
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right?
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Correct.
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Yes, sir.
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Yes.
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Yes.
Is that right?
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So you want the best, clearest shot you could get because
In a perfect world.
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MR. SILVERT:
moment, Your Honor.
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THE COURT:
MR. SILVERT:
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MR. TONG:
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MR. SILVERT:
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MR. TONG:
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THE COURT:
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BY MR. TONG:
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that correct?
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Yes.
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Yes.
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residence?
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Yes.
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MR. TONG:
THE COURT:
MR. TONG:
THE CLERK:
All right.
All right.
We have no objection.
Received.
the list.
MR. TONG:
THE CLERK:
THE COURT:
All right.
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THE CLERK:
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THE COURT:
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evidence.)
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CROSS-EXAMINATION (Continued)
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BY MR. SILVERT:
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particular time that you would have seen from the six cameras,
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correct?
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Yes, sir.
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correct?
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MR. SILVERT:
PPPP?
THE COURT:
He may.
THE CLERK:
BY MR. SILVERT:
THE CLERK:
MR. SILVERT:
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THE COURT:
I'm sorry.
Counsel, is it double P?
It's quadruple P.
All right.
So your question.
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BY MR. SILVERT:
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Yes.
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Yes.
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Yes.
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No.
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Isn't that the best shot of the back of the car that you
ever saw --
sure?
No.
correct?
You're not
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residence at 9:00?
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Yes, sir.
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Yes, sir.
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Officer Nguyen?
Yes.
I don't know.
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Yes.
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about that.
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it.
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Are you aware that the report, the first report of this
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afternoon?
MR. TONG:
MR. SILVERT:
list.
THE COURT:
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MR. SILVERT:
BY MR. SILVERT:
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morning?
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THE COURT:
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MR. TONG:
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THE COURT:
Sure.
All right.
Overruled, it's
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cross-examination.
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BY MR. SILVERT:
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Yeah.
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the morning?
Not initially.
I'm not sure, but it's after I got back to the station.
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Yes.
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Yes.
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That a crime had occurred, and that I should look for the
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footage.
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Yes, sir.
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Yes.
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Yes.
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Did you write a police report detailing what you were told
to do when you arrived at the house, when you were told what
No.
No report at all?
No.
police report?
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time, correct?
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Yes.
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Yes.
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Yeah.
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Right.
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Okay.
Correct, sir.
Okay.
And the time that you were assigned and that you
MR. SILVERT:
BY MR. SILVERT:
THE CLERK:
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THE COURT:
Thank you.
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BY MR. SILVERT:
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Yes, sir.
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Yes.
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Yes.
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MR. SILVERT:
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BY MR. SILVERT:
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Yes.
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footage?
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the page.
Yes.
residence?
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Yeah.
MR. SILVERT:
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THE COURT:
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MR. TONG:
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MR. SILVERT:
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THE COURT:
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All right.
Yes.
follow-up report.
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MR. TONG:
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MR. SILVERT:
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That's correct.
Is it three pages?
Your Honor, it's three pages.
I'll move
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THE COURT:
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MR. SILVERT:
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page?
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BY MR. SILVERT:
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All right.
Could the witness be shown the next
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Right.
Yes.
evidence?
Yes.
-- yeah.
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Yes.
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because -- so no one can challenge how you got the video and
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Yeah.
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Yes.
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Yes.
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MR. SILVERT:
into evidence.
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THE COURT:
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MR. TONG:
Any objection?
No objection.
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THE COURT:
MR. SILVERT:
Received.
Could the first page be published to the
jury?
THE COURT:
evidence.)
BY MR. SILVERT:
about --
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It may.
THE CLERK:
published.
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THE COURT:
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published.
Your question.
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BY MR. SILVERT:
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time, correct?
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Yes, sir.
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That's correct.
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Yes.
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Okay.
You wouldn't use the same piece of paper and write over
it?
Right.
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Yes, sir.
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Right.
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Yeah.
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MR. SILVERT:
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THE COURT:
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MR. SILVERT:
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THE COURT:
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MR. SILVERT:
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THE CLERK:
All right.
I'm moving on.
Let it be muted.
Could the witness be shown JJJ?
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BY MR. SILVERT:
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Yep.
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correct?
Right.
That's correct.
release --
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THE COURT:
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MR. SILVERT:
Yes.
evidence?
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THE COURT:
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MR. TONG:
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THE COURT:
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evidence.)
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Any objections?
MR. SILVERT:
jury?
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THE COURT:
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THE CLERK:
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been published.
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THE COURT:
Thank you.
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BY MR. SILVERT:
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55
1
Yes.
I might have.
That's correct.
I don't know.
10
11
asked you about Exhibit AA, and you said that was accurate, and
12
13
Yes.
14
15
Yes.
16
You didn't use a different form as you said you would have
17
18
Yes.
19
20
21
22
23
24
sir.
25
56
1
reports, correct?
Yes, sir.
And you must have been familiar with those rules, correct?
Yes.
10
11
prepared, you have to prepare a new one and change it, correct?
12
13
same.
14
15
document, correct?
16
17
18
19
Yes.
20
21
Yes.
22
23
Yes.
24
25
Yes.
I understand that.
57
1
Yes, sir.
Excuse me?
That's improper.
Right.
10
Correct?
11
Correct to what?
12
So be it.
13
14
15
MR. TONG:
it's cross.
16
THE COURT:
All right.
17
MR. SILVERT:
18
THE COURT:
19
BY MR. SILVERT:
20
21
22
It does.
23
24
25
58
1
Yes, sir.
So -- okay.
you made?
if you look at --
7
8
MR. SILVERT:
If we go back to AA again.
Then can we
9
10
11
THE COURT:
It may be published.
12
BY MR. SILVERT:
13
14
right?
15
16
Right.
17
Yes, sir.
18
So if you download and you make one copy, and then you
19
make three more, this only has to be with the one copy?
20
21
22
went?
23
No, sir.
24
25
Yes.
59
1
three documents?
No, sir.
THE CLERK:
THE COURT:
Thank you.
BY MR. SILVERT:
Yes.
10
That's the document from AA, it's the first page that only
11
12
Right.
13
14
correct?
15
16
17
MR. TONG:
18
THE COURT:
19
20
BY MR. SILVERT:
21
22
No.
23
This isn't the one that's correct, that actually shows you
24
25
Yes.
60
1
Yes.
presence?
No.
MR. SILVERT:
10
11
I believe we
14
15
My better half.
12
13
Nothing further.
MR. TONG:
objection.
16
THE COURT:
17
MR. SILVERT:
18
THE COURT:
There's no objection.
20
THE CLERK:
Quadruple P.
21
THE COURT:
22
19
23
Yes.
So is that double
P?
evidence.)
24
25
Do you want to --
MR. SILVERT:
jury?
61
1
THE COURT:
You may.
THE CLERK:
THE COURT:
Thank you.
BY MR. SILVERT:
Yes.
MR. SILVERT:
THE COURT:
10
MR. TONG:
11
Thank you.
Nothing further.
12
BY MR. TONG:
13
14
15
Yes.
16
17
18
Yes.
19
And it shows the white car driving down the street and
20
stopping, correct?
21
Yes.
22
23
24
25
Yes.
MR. TONG:
62
1
2
THE COURT:
MR. TONG:
tell us.
It shall.
I don't know the exhibit number, he has to
QQQQ.
THE CLERK:
BY MR. TONG:
10
11
Yes.
12
13
14
All right.
15
16
Yes.
17
All right.
18
19
the house?
20
Yes.
21
22
Six.
23
24
reports.
25
MR. TONG:
63
1
BY MR. TONG:
MR. TONG:
THE COURT:
MR. SILVERT:
MR. TONG:
THE CLERK:
MR. TONG:
10
THE CLERK:
Double A.
I'm sorry, that's triple -Double A, Defense Exhibit double A, please.
Your Honor, the exhibit has been
11
published.
12
BY MR. TONG:
13
14
15
correct?
16
Yes.
17
And I believe the part that Mr. Silvert was focused on,
18
19
correct?
20
Yes.
21
22
Yes.
23
24
25
Okay.
Yes.
64
1
items that you testified to earlier that you did to assure that
Yes.
that correct?
Yes.
All right.
this portion, where you said you released one original and one
10
copy, correct?
11
Yes.
12
And right below that, there's the section that says the
13
original went into evidence and the copy went to the detective;
14
is that correct?
15
Yes.
16
17
18
19
20
blaming later.
21
22
23
Correct.
24
25
everybody that had touched the evidence after it was put into
65
1
could?
it'll document who it went from in evidence and who it went to,
10
11
12
13
MR. TONG:
14
THE COURT:
You may.
15
BY MR. TONG:
16
17
Yes.
18
MR. TONG:
19
you?
Okay.
20
BY MR. TONG:
21
22
23
24
Okay.
25
Yes.
And, Mr. Silva, could you explain what this document is,
66
1
And that basically shows when you placed evidence into the
evidence --
Room, yes.
Yes.
Yes.
10
11
12
Now the other document that you were shown, Exhibit JJJ --
13
MR. TONG:
14
THE COURT:
You may.
15
THE CLERK:
16
published.
17
BY MR. TONG:
18
19
20
Yes.
21
22
23
24
No.
25
67
1
reflects -- the original one reflects that four items were put
Yes.
Yes.
Okay.
Okay.
10
11
No.
12
Why not?
13
14
an investigation.
15
16
17
18
19
20
21
Exhibit AA?
22
Why can't they just go into the evidence room and look at
No.
23
MR. TONG:
24
THE COURT:
25
MR. TONG:
68
1
MR. SILVERT:
THE COURT:
MR. TONG:
THE CLERK:
Fine.
Yes, please.
I'm sorry, Counsel.
currently.
THE COURT:
THE CLERK:
THE COURT:
10
RECROSS-EXAMINATION
11
BY MR. SILVERT:
12
13
the videotape?
14
15
16
Yes.
17
18
Yes.
19
20
Yes.
21
THE COURT:
22
BY MR. SILVERT:
23
24
25
69
1
Yes.
MR. SILVERT:
Okay.
page of AA.
BY MR. SILVERT:
custody.
Yes.
10
When?
11
12
13
14
Correct.
15
-- correct?
16
THE COURT:
17
arrested?
Do you know?
18
BY MR. SILVERT:
19
20
21
22
desk until --
23
24
25
70
1
Yes, sir.
seized it?
It did.
Okay.
Yes, sir.
10
11
12
correct?
13
14
15
16
So go back to JJJ.
17
4 copies, right?
18
Yes, sir.
19
20
21
Yes.
22
So when you got the video with all the copies, however
23
many you made, no one but yourself had that until July 1st,
24
2013?
25
71
1
No.
No.
10
Of?
11
12
13
14
Who?
15
Officer Nguyen.
16
From CIU?
17
Yes.
18
19
20
21
Yes, sir.
22
23
24
25
original.
And I'm not sure who the other detectives might have
72
1
1st, correct?
detective, yeah.
didn't let any of the copies out of your possession before July
1st, correct?
You said a moment ago that people would come and look at
Those are just the ones that I have that I gave to the
10
11
Yes.
12
13
14
15
16
17
18
19
THE WITNESS:
20
recovered a hard drive that he can play back and forth over and
21
22
23
24
25
BY MR. SILVERT:
73
1
correct?
Yes.
Yes.
Yes.
And you let them out, anybody could have them, correct?
10
11
12
Correct.
13
14
15
16
correct?
17
18
Right.
19
right?
20
Yes.
21
22
23
24
25
74
1
case.
video?
No.
Did Louis Kealoha come into your room and look at the
video?
No.
Did Bobby Nguyen come into your room and look at the
video?
Did Katherine Kealoha come into your room and look at the
10
Yes.
11
When?
12
13
So the very day you got it, Bobby Nguyen came into your
14
15
16
yeah.
17
18
I can't tell you the time, but I am pretty sure he saw the
19
20
21
No.
22
23
Yes.
24
25
No.
75
1
2
MR. TONG:
that.
3
4
MR. SILVERT:
Nguyen saw --
THE COURT:
Overruled.
BY MR. SILVERT:
10
11
THE COURT:
12
MR. SILVERT:
13
THE COURT:
Okay.
14
BY MR. SILVERT:
15
16
17
18
19
20
21
Sure.
22
23
Yes.
24
25
Do you know why Bobby Nguyen was able to look at the video
76
1
MR. TONG:
MR. SILVERT:
THE COURT:
Wait.
Stop.
officer.
Overruled.
He's a police
10
THE WITNESS:
11
THE COURT:
12
THE WITNESS:
13
THE COURT:
Yes.
Okay.
Please.
14
BY MR. SILVERT:
15
16
17
All right.
18
circumstance, correct?
19
20
21
22
23
24
correct?
25
No.
I believe so.
77
1
Yes.
Did he -- did Bobby Nguyen come into the room with anybody
else?
Excuse me?
Did he come into the room to watch the video with anyone
else?
No.
10
He was by himself?
11
Yes.
12
Did he tell you who gave him the authority to come in?
13
He works in my office.
14
15
16
17
18
Yes.
19
Bobby Nguyen?
20
THE COURT:
21
question.
22
BY MR. SILVERT:
23
24
25
78
1
At the house?
At the house.
again?
Yes.
MR. SILVERT:
THE COURT:
8
9
Thank you.
No further questions.
BY MR. TONG:
10
Just to clarify, once you seized the hard drive, you put
11
12
Yes.
13
14
15
access to.
16
17
mean other people in the unit could get into the locked drawer
18
19
20
21
22
23
Yes.
24
25
Yes.
And when you say only you had access, I mean, does that
79
1
-- is that correct?
Okay.
the house when you recovered the CDs -- or the video; is that
correct?
Yeah.
No.
MR. TONG:
MR. SILVERT:
10
11
Okay.
THE COURT:
Thank you.
Nothing further.
All right.
12
MR. SILVERT:
13
THE COURT:
That's correct.
All right.
14
excused as a witness.
15
16
sir.
17
You're
18
19
20
21
22
23
24
25
80
1
2
6
7
THE COURT:
the ladies and gentlemen of the jury, counsel, and Mr. Puana.
MR. TONG:
10
Honor.
11
12
THE COURT:
oath.
13
(Witness sworn.)
14
THE CLERK:
15
16
THE WITNESS:
17
18
BY MR. TONG:
19
20
Good morning.
21
22
23
24
Department?
25
81
1
the community.
Five years.
Five years.
10
11
12
Okay.
13
Department?
14
15
16
chief?
17
18
19
20
21
office.
22
23
24
25
And how long have you been with the Honolulu Police
82
1
Baptist University.
Yes, I am.
Katherine Kealoha.
10
11
18 years.
12
13
14
And I assume, over the last 18 years, you have met some of
15
16
Yes, I have.
17
18
Yes, I do.
19
20
Gerard Puana?
21
22
And if you were to see Mr. Puana, would you recognize him?
23
Yes, I would.
24
25
Yes.
83
1
glasses.
5
6
MR. TONG:
THE COURT:
It shall.
BY MR. TONG:
10
11
12
13
14
15
known him?
16
17
cordial.
18
19
And can you describe generally for the jury the nature of
20
21
22
23
24
25
84
1
that I've seen him in recent history was when he was helping us
your home.
10
11
12
13
14
the repairs?
15
16
17
18
remodelling?
19
20
21
our house.
22
23
24
residence?
25
Okay.
Okay.
85
1
would say.
Outside.
And what were the circumstances under which you would see
10
11
12
never came home early, like in the mornings, but I used to see
13
14
15
unexpectedly?
16
Absolutely.
17
18
19
20
21
22
23
24
25
And I
MR. SILVERT:
And
He walks towards us
404(b).
86
1
THE COURT:
(Sidebar.)
THE COURT:
Okay.
All right.
Mr. Silvert.
MR. SILVERT:
trespass or burglary.
MR. TONG:
10
11
12
13
14
THE COURT:
15
16
accusations?
17
MR. TONG:
18
accusations.
19
event.
20
No.
MR. SILVERT:
Right.
21
22
23
24
25
whatever.
87
1
THE COURT:
It's a prior
5
6
MR. TONG:
but --
THE COURT:
MR. TONG:
9
10
said, I agree.
Yeah.
-- with the exception of what you just
There's going to
11
MR. SILVERT:
12
13
14
trespass.
15
MR. TONG:
That's the
16
17
instruction.
18
THE COURT:
No -- okay.
19
20
21
22
MR. TONG:
23
THE COURT:
24
MR. TONG:
25
gets.
But
88
1
2
THE COURT:
Right.
MR. SILVERT:
anything.
8
9
10
THE COURT:
11
MR. SILVERT:
12
already done, but if they try to go down the road that the gate
13
14
15
16
17
THE COURT:
property.
18
MR. SILVERT:
19
20
21
to.
22
23
act.
24
25
He wasn't --
THE COURT:
I think the
They knew
89
1
that --
2
3
MR. TONG:
MR. SILVERT:
startled.
he's comfortable --
THE COURT:
It's overruled.
You
(End of sidebar.)
10
THE COURT:
11
BY MR. TONG:
12
13
14
daughter were in the pool in the back of your house, and the
15
16
Yes.
17
18
Well, we were shocked because the front gate and the side
19
20
MR. SILVERT:
21
THE COURT:
22
THE WITNESS:
Overruled.
Both were locked.
He suddenly appears,
23
24
he's there to pick up his toolbox, which was on the side of the
25
house.
90
1
told her, your uncle is here, and, you know, maybe he wants to
talk to you.
THE COURT:
Do
BY MR. TONG:
10
Okay.
11
12
13
14
15
And I always
I took my daughter
16
17
18
then he left.
19
Okay.
20
21
house uninvited.
22
23
24
25
objection.
THE COURT:
Overruled.
91
1
point.
THE WITNESS:
in the garage.
5
6
BY MR. TONG:
10
11
Okay.
Now --
THE COURT:
12
BY MR. TONG:
13
14
15
THE COURT:
What year?
16
BY MR. TONG:
17
18
19
20
21
Okay.
22
Okay.
23
24
Okay.
25
92
1
particular day?
Yes.
6:00.
10
I proceeded to drive
11
12
13
14
15
mailbox was?
16
17
18
19
Yes.
20
What did you and your wife use the mailbox for?
21
22
Okay.
23
24
-- I need to know.
25
8
9
It was a weekend.
Okay.
Let's
93
1
Yes.
specific.
Okay.
10
Okay.
11
12
had -- it was locked, and they had slits in there so that you
13
14
15
16
Yes.
17
18
19
All right.
20
21
All right.
And they
MR. TONG:
Exhibit 3.
22
THE COURT:
He may.
23
24
THE WITNESS:
25
THE CLERK:
Okay.
94
1
MR. TONG:
Yes, please.
THE CLERK:
THE COURT:
Thank you.
BY MR. TONG:
Yes, sir.
Yes.
10
11
12
13
2013?
14
Yes, it does.
15
MR. TONG:
16
MR. SILVERT:
17
THE COURT:
18
MR. TONG:
19
THE COURT:
It may be published.
20
MR. TONG:
21
22
23
Received.
May it be --
evidence.)
THE CLERK:
24
to the jury.
25
BY MR. TONG:
95
1
All right.
THE COURT:
Thank you.
BY MR. TONG:
of this.
describing?
Yes.
out on top?
10
11
All right.
12
13
Yes, sir.
14
And you testified that you then went out and went surfing?
15
Yes.
16
17
Yes.
18
19
20
21
the back.
22
23
24
25
96
1
Okay.
Yes.
-- correct?
Okay.
10
11
Yes.
12
13
14
15
16
17
18
19
20
21
22
23
24
my wife, so you have to ask her that -- but the second set,
25
97
1
But going back, the reason why I had put up -- had the
to our house when we were in the pool the second time because I
Okay.
10
No.
11
And when you say somebody shot out your door, what kind of
12
13
14
15
coming home one day after a business trip, and the right side
16
17
I just
18
19
20
21
22
23
your testimony that you have a daughter who was living with you
24
25
Okay.
Yes.
98
1
Okay.
system.
recommendation, correct?
Yes.
Okay.
10
But they had installed more because after the second set
11
of new doors that we had put in, when the window was shattered,
12
it looked like they came over the back wall because when the
13
14
and they checked it, which was located in the garage, somebody
15
16
the back.
17
18
in the back of the house and then one on a pole just outside of
19
my house.
20
21
22
Yes.
23
24
25
Okay.
Yes.
99
1
residence?
No.
that.
Okay.
10
11
12
Yes.
13
14
I have.
15
All right.
16
17
18
19
MR. TONG:
20
THE COURT:
21
MR. TONG:
22
23
THE CLERK:
24
MR. TONG:
25
BY MR. TONG:
Yes.
Thank you.
100
1
Yes.
Yes.
8
9
MR. TONG:
All right.
10
11
MR. SILVERT:
12
13
THE COURT:
14
MR. SILVERT:
15
16
17
18
MR. TONG:
Wait.
I don't
19
THE COURT:
20
MR. TONG:
21
22
23
THE COURT:
May we
24
25
yeah.
101
1
MR. TONG:
THE COURT:
MR. TONG:
first?
MR. SILVERT:
THE COURT:
MR. SILVERT:
10
All right.
THE COURT:
Very good.
All right.
MR. SILVERT:
14
THE COURT:
Thank you.
If you would,
jury.
All right.
It's received.
16
MR. SILVERT:
17
18
MR. TONG:
19
MR. SILVERT:
20
MR. TONG:
21
MR. SILVERT:
23
THE COURT:
24
Thank you.
22
25
We're happy to
please.
13
15
11
12
We should be able
to do that.
4
5
Okay.
102
1
Okay.
Yes.
All right.
ago, correct?
Yes.
Okay.
10
11
Yes.
12
13
14
Okay.
15
and ask you to look at that, and then I'll ask you about the
16
contents.
17
MR. TONG:
18
THE COURT:
You may.
19
MR. TONG:
Thank you.
20
21
BY MR. TONG:
22
Okay.
23
Yes.
24
25
foreground?
103
1
Yes.
Yes, I do.
Gerard Puana.
10
Yes, it is.
11
12
13
14
walks.
15
16
17
18
19
20
21
22
23
particular video.
24
25
And when you say you know how he walks, what about his
Okay.
I've seen
Absolutely.
104
1
Okay.
All right.
And I
Why would
10
11
Many times.
12
All right.
13
14
15
16
17
18
MR. SILVERT:
19
THE COURT:
20
21
this time.
And
Your Honor --
All right.
All right.
22
23
24
25
you are not to testify about that unless you are specifically
105
1
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
All right.
I apologize.
I know.
I'm not
10
11
12
13
14
We're in recess.
THE COURT:
counsel and Mr. Puana, and that the jury is not present.
15
16
17
outside.
Thank you.
18
MR. SILVERT:
19
20
21
22
THE COURT:
23
MR. SILVERT:
24
25
106
1
All right.
THE WITNESS:
THE COURT:
Absolutely.
in the courtroom.
Mr. Silvert.
MR. SILVERT:
10
11
12
13
We've
This is not a
14
15
16
17
18
response, how did you know, well, I knew because, and then he
19
20
incarceration.
21
THE COURT:
22
MR. SILVERT:
23
24
25
107
1
declared.
So,
8
9
10
11
And I
12
13
elicit this.
14
15
16
17
18
MR. TONG:
me to read it?
19
THE COURT:
20
THE REPORTER:
21
22
23
MR. TONG:
It asked
24
It was not
25
108
1
MR. SILVERT:
problem.
THE COURT:
mistrial?
MR. TONG:
10
11
12
13
14
I think --
15
16
17
18
And
THE COURT:
MR. TONG:
weight.
designed to do that.
19
THE COURT:
20
MR. TONG:
Yes.
And, again, Your Honor, if there was some
21
22
yesterday.
23
THE COURT:
24
MR. TONG:
25
THE COURT:
109
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talking about the weight difference, and then spoke about this
other matter.
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All right.
Thank you.
MR. SILVERT:
trial.
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THE COURT:
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MR. TONG:
Understood.
We're --
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least advise Chief Kealoha that certain areas are off ground
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when he's on the stand, and not go into anything more than
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that.
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May I?
THE COURT:
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instructed, but I would just say wait until after this recess,
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All right.
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THE COURT:
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Thank you.
counsel and Mr. Puana, and that the jury is not present.
So, counsel, before the recess, Mr. Silvert made a
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burglary.
Mr. Tong has argued that the curative instruction that
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instruction.
Declaring a mistrial is appropriate only where a
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effect of an error.
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in this case and the testimony given with regard to this prior
arrest and conviction, coupled with the fact that the court
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on the fact that no 404(b) notice was given with regard to the
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Mr. Silvert had represented to the jury that Mr. Puana would,
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Mr. Silvert and his client have not and could not be required
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All right.
inform them that we all give them -- extend our thanks to them
for their service, but that the court has declared a mistrial,
later date.
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All right.
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MR. TONG:
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THE COURT:
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MR. SILVERT:
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We didn't
Thank you.
Mr. Silvert?
No, Your Honor.
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THE COURT:
Yes.
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MR. SILVERT:
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He was never
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THE COURT:
All right.
record.
So what I would ask you to do, counsel, is after I
excuse the jury and bring them back into chambers to thank
them, and then I'll probably meet with them for five minutes,
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Now, I know, Mr. Tong and Ms. Hattan, this places you
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going to be who touched the case last has it next or what have
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calendars.
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meet and confer with Mr. Silvert, and we'll take up the matter
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MR. TONG:
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THE COURT:
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So we're in recess.
Your Honor.
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THE COURT:
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THE COURT:
counsel, Mr. Puana, and the ladies and gentlemen of the jury.
jury.
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I do excuse you as jurors, and ask that you follow Mr. Myer, my
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any questions about the mechanics of the jury trial, not the
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specifics of the case, but any questions you might have about
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the mechanics of the jury trial, and then I'll discharge you to
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give you.
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MR. TONG:
THE COURT:
MR. TONG:
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trial.
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THE COURT:
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MR. TONG:
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Okay.
And I think we're in agreement on that.
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THE COURT:
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MR. SILVERT:
And I'm
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THE COURT:
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for that, three days for the government, two days for the
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defense.
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case.
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MR. SILVERT:
THE COURT:
THE CLERK:
THE COURT:
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THE CLERK:
No.
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THE COURT:
Right.
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21st.
I'm away.
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if we start the 28th, that should give you more than enough --
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28th, 29th, 30th, and 1st, and then the 5th through 6th for the
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MR. SILVERT:
THE COURT:
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MR. SILVERT:
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May 27th.
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THE COURT:
days.
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MR. SILVERT:
THE COURT:
No comment.
but I'm going to give you three days for the government, two
this nature.
MR. SILVERT:
THE COURT:
MR. TONG:
Okay.
May 27th.
May 27th?
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available date.
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MR. SILVERT:
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THE COURT:
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done.
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THE CLERK:
Absolutely.
All right.
Very good.
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MR. SILVERT:
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THE CLERK:
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Okay.
Your Honor.
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THE COURT:
Yes.
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THE CLERK:
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THE COURT:
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THE CLERK:
THE COURT:
MR. TONG:
THE COURT:
So the
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on the basis that a new trial has been required, and the first
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MR. TONG:
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MR. SILVERT:
I would
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the statement.
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He knows
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He knows he's
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He went out of
important to know.
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THE COURT:
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have him take the stand, and you're going to ask, did you
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MR. SILVERT:
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THE COURT:
that.
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MR. SILVERT:
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THE COURT:
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MR. SILVERT:
No.
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MR. TONG:
on purpose.
THE COURT:
Right.
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MR. TONG:
Mr. Silvert
humiliation.
to it.
THE COURT:
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itself didn't call for that response; two, I think it's clear
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on the record, you know, Mr. Tong got this case yesterday
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government involvement.
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case law to show me, where a witness goes, for lack of a better
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word, rogue and blurts out something, that unless there's some
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MR. SILVERT:
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THE COURT:
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MR. SILVERT:
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THE COURT:
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THE DEFENDANT:
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THE COURT:
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MR. SILVERT:
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THE COURT:
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MR. TONG:
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THE COURT:
Sure.
Okay.
Thank you.
And we have
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in recess.
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States.
DATED at Honolulu, Hawaii, December 29, 2014.
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