Garringer v. State (Concurring Opinion by J. Acoba, with whom J. Duffy joins)

***NOT FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER***

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CONCURRING OPINION BY ACOBA, J.,

WITH WHOM DUFFY, J. JOINS

I continue to adhere to the position taken in my dissents in State v. White, 110 Hawai`i 79, 91, 129 P.3d 1107, 1119 (2006) (Acoba, J., dissenting, joined by Duffy, J.) and State v. Rivera, 106 Hawai`i 146, 102 P.3d 1044 (2004) (Acoba, J., dissenting, joined by Duffy, J.). However, in the absence of a mandate "that the states retroactively apply a new [federal] constitutional rule for criminal cases[,] . . . applicable to the states through the fourteenth amendment[,]" State v. Garcia, 96 Hawai`i 200, 213, 29 P.3d 919, 932 (2001), I concur in the result.