NOT FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER


NO. 26149





IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI`I






RAITA FUKUSAKU, Petitioner-Appellant, v.
STATE OF HAWAI`I, Respondent-Appellee





APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 02-1-0087)





SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Watanabe and Lim, JJ.)

Raita Fukusaku (Appellant) appeals the May 30, 2003 order of the Circuit Court of the First Circuit (circuit court) (1) that denied, without a hearing, his November 22, 2002 Hawai`i Rules of Penal Procedure (HRPP) Rule 40 (2002) petition for post-conviction relief (Rule 40 Petition). In the Rule 40 Petition, Appellant sought to vacate his double murder convictions because of purportedly perjured testimony given at his jury trial.

After a meticulous review of the record and the briefs submitted by the parties, and giving careful consideration to the arguments advanced and the issues raised by the parties, we dispose of Appellant's points of error on appeal as follows:

1. Regardless of whether the analysis proceeds under State v. McNulty, 60 Haw. 259, 588 P.2d 438 (1978), or under State v. Teves, 5 Haw. App. 90, 679 P.2d 136 (1984), Appellant is not entitled to a new trial, because there is no reasonable possibility the purportedly perjured testimony contributed to Appellant's convictions, McNulty, 60 Haw. at 267-68, 588 P.2d at 445 (a new trial will not be granted unless "the [newly-discovered] evidence is of such a nature as would probably change the result of a later trial"); Teves, 5 Haw. App. at 96, 679 P.2d 141 (a new trial will not be granted unless "the false testimony is not harmless because there is a reasonable possibility that it contributed to the conviction"), in light of the overwhelming other evidence adduced at trial.

2. Our conclusion that the purportedly perjured testimony was harmless beyond a reasonable doubt disposes of Appellant's other point of error on appeal -- that he was denied due process of law by reason of the testimony. See Napue v. Iliinois, 360 U.S. 264, 272 (1959) (reversing on a post-conviction petition because "the false testimony used by the State in securing the conviction of petitioner may have had an effect on the outcome of the trial"). Cf. State v. Moriwaki, 71 Haw. 347, 356, 791 P.2d 392, 397 (1990) (due process requires vacatur by reason of the State's suppression of exculpatory evidence, but "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different" (citation and internal quotation marks omitted)).

Moreover, Appellant confirms that "[n]either the defense nor the prosecution had reason to know of the false testimony offered by [the witness]. The prosecution certainly would not have called [the witness] if they had knowledge[.]" Second Amended Opening Brief at 23. Appellant's due process claim cannot stand for this alternative reason. See Napue, 360 U.S. at 269 (due process applies where the state "knowingly use[s] false evidence, including false testimony, to obtain a tainted conviction"); In re Carvelo, 44 Haw. 31, 38, 352 P.2d 616, 623 (1959) (Napue is applicable where "the defendant was convicted on perjured testimony known to be false by the prosecution at the time of the trial").

3. Accordingly, Appellant's Rule 40 Petition is "without trace of support either in the record or from other evidence submitted by the petitioner[,]" HRPP Rule 40(f), and the circuit court's order denying the Rule 40 Petition without a hearing was therefore correct. Barnett v. State, 91 Hawai`i 20, 26, 979 P.2d 1046, 1052 (1999).

Therefore,

IT IS HEREBY ORDERED that the circuit court's May 30, 2003 order denying the Rule 40 Petition is affirmed.

DATED: Honolulu, Hawai`i, September 12, 2006.

On the briefs:


Myles S. Breiner,
for Petitioner-Appellant.

Donn Fudo,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Respondent-Appellee.





1.    The Honorable Dan T. Kochi presided.