puana trial transcript

8/10/2019 Puana Trial Transcript

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA,Plaintiff,

vs.

GERARD K. PUANA,

Defendant.

)))))))))X

CRIMINAL NO. 13-00375 LEKHonolulu, HawaiiDecember 4, 20148:40 A.M.

Jury Trial - Day One

TRANSCRIPT OF JURY TRIALBEFORE THE HONORABLE LESLIE E. KOBAYASHI

UNITED STATES DISTRICT JUDGEAPPEARANCES:

For the Government:

For the Defendant:

Official CourtReporter:

LAWRENCE L. TONGANDREA HATTANOffice of the United States AttorneyPrince Kuhio Federal Building300 Ala Moana Blvd Ste 6100Honolulu, HI 96850

ALEXANDER SILVERTOffice of the Federal Public

DefenderPJKK Federal Building300 Ala Moana Blvd Rm 7-104Honolulu, HI 96850

Cynthia Ott, RMR, CRRUnited States District Court300 Ala Moana Blvd, Room C-270Honolulu, Hawaii 96850

Proceedings recorded by machine shorthand, transcript producedwith computer-aided transcription (CAT).


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I N D E X

EXAMINATIONS PAGE

NIALL SILVA

DIRECT EXAMINATION BY MR. TONG...................... 20VOIR DIRE EXAMINATION BY MR. SILVERT................ 28DIRECT EXAMINATION (Continued) BY MR. TONG.......... 30CROSS-EXAMINATION BY MR. SILVERT.................... 37VOIR DIRE EXAMINATION BY MR. TONG................... 41CROSS-EXAMINATION (Continued) BY MR. SILVERT........ 42REDIRECT EXAMINATION BY MR. TONG.................... 61RECROSS-EXAMINATION BY MR. SILVERT.................. 68REDIRECT EXAMINATION BY MR. TONG.................... 78

LOUIS KEALOHADIRECT EXAMINATION BY MR. TONG...................... 80

E X H I B I T S

GOVERNMENT'S: PAGE

1 and 2 were received in evidence................... 321.1, 1.2 and 1.3 were received in evidence.......... 343 was received in evidence.......................... 94

DEFENDANT'S: PAGE

QQQQ was received in evidence.........................42AA was received in evidence...........................52JJJ was received in evidence..........................54PPPP was received in evidence.........................60


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Ms. Hattan who will be giving opening for the government?

MR. TONG: I will, Your Honor.

THE COURT: All right. Thank you.

MR. TONG: Your Honor, may I have a moment to

introduce myself to the jury because I have not met them

before?

THE COURT: You may, yes.

MR. TONG: May it please the court. Counsel.

Ladies and gentlemen, let me introduce myself. My

name is Larry Tong. I'm an Assistant U.S. Attorney. With methroughout the trial will be Andrea Hattan, another Assistant

U.S. Attorney. Both of us work in the same office with Les

Osborne, the individual you met two days ago.

Unfortunately, Mr. Osborne is not able to continue

with this trial, so the two of us will have the privilege of

presenting the evidence to you in his absence.

So I just wanted to introduce myself, since I don't

know any of you and I wasn't privy to the proceedings the other

day.

I assume that the other day you learned what this case

was about. This case is about the destruction and theft of a

mailbox. We will show that on June 21 of 2013 the defendant,

Gerard Puana, the individual in the aloha shirt in the middlethere, physically ripped a mailbox off of its pedestal and took

it away.


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The mailbox belonged to his niece, Katherine Kealoha.

Katherine Kealoha is a city prosecutor. Ms. Kealoha is married

to Louis Kealoha, the chief of the Honolulu Police Department.

In 2013, at the time of this incident, the Kealohas lived in

Kahala.

The mailbox that was involved is not a simple plastic

mailbox that says U.S. Mail on it, the type that you see at

City Mill. It was instead a little bit more fancy. It was

ornate. It had a satin-type finish. It had a little roof on

it. It had a locking mechanism. And there was a little slotthat the mailman could use to slide the mail into the mailbox.

And this ornate mailbox sat on top of a pedestal, a

little concrete or very hard object that was anchored with a

base in the ground and coming up to support the mailbox.

The Kealohas last saw the mailbox on the evening of

June 21, late in the afternoon. The next morning when they

awoke it was missing. They noticed that the pedestal was still

there, it was sticking up, and that at the top of the pedestal

there was a little bolt up -- sticking up into the air which

used to secure the mailbox, but the mailbox itself was gone.

Katherine Kealoha decided to report the theft of the

mailbox to the police. So Katherine Kealoha called 911, the

general number for the police, and reported the theft. Apatrol officer then responded to the Kealoha residence on

June 22nd, the morning after the event, and started an


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investigation.

At that time no one had seen the event, but, as it

turns out and as you will see, it was captured on videotape.

And the reason for that is that the Kealoha house had a

security system. The security system included six different

surveillance cameras pointed at various locations of the house.

The system was maintained by the Honolulu Police Department

because they wanted to protect Chief Kealoha and his wife from

any threats or any incidents.

So after they received the report, the HPD sent out atechnical officer, a computer person, to go to the residence

and retrieve the video. This officer was part of a group

called the criminal intelligence unit, which is a unit in the

HPD that has specialized duties, including protecting the HPD,

its officers and, of course, its chief.

The officer in question is Niall Silva. You'll hear

from him later this morning. Officer Silva went to the Kealoha

residence and went to the control box where all of the

information about the monitors was located. He checked to see

that everything was working, that the cameras were operational,

that the images were being recorded on computer, that the date

and time stamped on the image matched the date and time of the

incident.He then reviewed the tape and saw that it had captured

the event at about 11:30 p.m., a little before midnight, the


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night before. And you will see the tape.

The tape shows -- there is a long street in front of

the Kealoha residence in Kahala, where they lived at the time.

A white car drives up the street, doesn't deviate, comes

straight to the Kealoha residence. It stops right in front of

the driveway.

There is several moments when you see the tape where

nothing happens. Then an individual gets out of the driver's

side of the car and walks deliberately to the mailbox. The

individual is wearing a long, light-colored tee shirt and baggycargo shorts, the type with the big pockets that you can stuff

with all sorts of things. He's also wearing socks and shoes,

not slippers, and there's a ball cap.

The individual walks up to the mailbox, leans forward,

tries to fiddle with it as if he's trying to get to the

contents, and then sort of stands up and looks a little like

this, puts his arms around it, yanks it off the pedestal. He

then takes this mailbox, goes to the car, opens the door, puts

it in the car, and drives away.

You're going to see the images of that particular

video. It will show that the crime was not rushed. It was

very deliberate. It was almost as if the individual owned that

place, knew that place.Now, I'll be the first to tell you that when you see

the videos, they are not real clear. This is not like watching


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high-def television, where you can see every pore on the face,

to the chagrin of media people and actors and others. The

video is black and white, and it's not the clearest, but it was

clear enough that people could identify the defendant.

You'll hear that the HPD detectives took the video and

showed it to Katherine Kealoha. Katherine Kealoha immediately

recognized the person taking the mailbox as her uncle, the

defendant.

You'll hear that the video was shown to Chief Kealoha.

Chief Kealoha has known the defendant for many years. In fact,he's known the defendant longer than he's known his wife. They

used to work out together, they socialized. And once the

family came together, and there was a family relation, they

would see each other at family gatherings and at the Kealoha

house. He was shown the video. He says, yes, that's the

defendant.

A third person, an HPD officer named Bobby Nguyen, was

also shown the video. Officer Nguyen married Katherine

Kealoha's niece, so he too is family.

I see one of you thinking about it. There is a family

relation here, and I'll get into that in a minute. He is part

of the family, and, in fact, Officer Nguyen lived in the back

of the Kealoha residence at the time of the incident. He hadseen and known the defendant, Gerard Puana, for a number of

years, in fact, called him Uncle Gerry.


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And Officer Nguyen saw the video, and he too

recognized the person taking the mailbox, destroying the

mailbox, as Uncle Gerry, the defendant, Gerard Puana.

You're going to hear that the identifications were

based on various characteristics. One was his stature and his

build. He was lighter at the time than he is now. The

witnesses will tell you that.

Another was the way that he walked. He has a very

unique walk, where he sort of puts his hip forward and

almost -- some witnesses may call it cocky -- swinging hisarms.

He also has the manner of dress, the tee shirt that's

a long sleeve with shorts, with socks and shoes. The witnesses

recognize that. So you'll hear that they identified the

defendant.

After that particular identification, HPD took steps

to arrest the defendant, Gerard Puana. An officer arrested him

and said, you're under arrest for theft in the second degree, a

felony under Hawaii state law. No specifics about what the

theft involved were given to him.

Once the arrest was made, he was brought to the

station. The lead detective decided he wanted to question the

defendant about the mailbox theft. The detective then calledPostal Inspector Shaughnessy. He did that for a couple of

reasons. One reason was because, as you probably already heard


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on the day I wasn't here, that there is a -- an offense under

federal law for stealing a mailbox that is used for the

delivery of United States mails.

Another reason is there was some concern on the part

of HPD that there could be a conflict of interest in having the

city prosecutors decide whether to prosecute a case involving

one of their own, Katherine Kealoha.

So HPD called Inspector Shaughnessy. He went to the

station. He said, sure, I'll participate in the interview.

You'll hear that once Inspector Shaughnessy was in theroom, a Detective Akagi brought the defendant to the room, and

Inspector Shaughnessy introduced himself. He said, I'm Brian

Shaughnessy, an inspector with the United States Postal

Inspection Service. He then showed him his credentials, his

badge, and that was that. He said no more about the reason

that the defendant was there.

You'll hear that after hearing that the postal

inspector was there, the defendant spontaneously said, "I'm

wrongly accused, I had nothing to do with that mailbox," even

though no one had mentioned that he was under investigation for

the mailbox.

So, ladies and gentlemen, in a nutshell, that's what

you're going to hear in this case. You're going tohear -- you'll see the video, you'll hear the eyewitnesses who

will identify the defendant based on their familial and


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long-standing relationship. You'll hear his statement denying

involvement in a mailbox event, even though he hadn't been told

that's what he was there for.

Now I want to address the family angle. I saw a

couple of you trying to keep straight who's related to whom and

how. Many of the witnesses here are related. Katherine

Kealoha is related to the defendant. Bobby Nguyen is related

through marriage to Katherine Kealoha and the defendant.

You will hear that the Puana family is a fairly large

family, and, like many large families, there are good times,and there are bad times. The good times, you'll hear, included

times when the defendant was frequently at the Kealoha house.

Back in 2007, 2009 -- please don't hold me to the

dates, I'm not completely sure -- the Kealohas were renovating

their residence. They were doing pretty significant

renovations.

Katherine Kealoha asked her dad to help renovate the

residence. Her dad is a master shipbuilder and has expertise

in the area. The dad then hired the defendant, Gerard Puana,

his brother, to assist with some of the carpentry and the

painting work. And for a period of a couple of years, the

defendant was at the Kealoha residence quite frequently. Those

were the good times.And by the way, I should tell you, the surveillance

cameras that were used to capture the crime later were not


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present at the front of the house when the defendant used to go

over there.

There were bad times in the family too. As a matter

of fact, you will inevitably hear, for sure, that there is a

civil lawsuit where people in the Puana family are arguing over

money. The basic claim grows out of a complicated real estate

transaction where the defendant's mom took out a mortgage on

her property to get money for various reasons. Katherine

Kealoha helped with that transaction to buy the defendant a

condo.You'll hear that now in the civil lawsuit there are

claims where the defendant and his mother are suing Katherine

Kealoha claiming that she stole money, claiming that she took

money and used it for purposes that were not proper. Katherine

Kealoha denies that. She will tell you very generally that any

money she took was returning money she put in.

Fortunately for you, you're not going to have to hear

all the evidence about what is a complicated, messy financial

dispute colored by family emotions. That will be heard in

another case by another jury across Punchbowl Street on another

day. But you will hear about the dispute only as it relates to

whether to believe certain witnesses or whether the dispute

created strong emotions that could explain why the defendantwould blatantly rip a mailbox off of its pedestal belonging to

his niece.


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Ladies and gentlemen, the case should not take too

long. We're all sharing that hope. At the conclusion, I'm

sure you will conclude that a mailbox was destroyed, that the

event was captured on tape, and the only issue for you to

decide really is going to be did the defendant do it.

We ask you to listen to the evidence, to use your

independent judgment, to look at the videos, to look at the

witnesses and decide whether they are credible, and use your

common sense and reason in evaluating all of this.

You will hear people say it is him and it is not him,and, fortunately, all that matters is what you conclude.

We submit to you that when we finish this case, you

will consider the evidence and find the defendant, Gerard

Puana, guilty of destroying and tearing down the mailbox.

Thank you for your attention. Thank you, Your Honor.

THE COURT: Mr. Silvert, will you be giving the

opening?

MR. SILVERT: Good morning, Your Honor.

THE COURT: Good morning.

MR. SILVERT: Good morning, ladies and gentlemen of

the jury. Good morning, Counsel.

You're going to see me frequently take my glasses off.

I can see you with my glasses, I can't read my papers. You'llsee it all through the trial.

This case is about the taking of a mailbox. You're


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going to hear evidence from a -- about a surveillance video.

And Mr. Tong said that it's grainy, it's hard to see, and it's

not like TV. Well, that's an understatement. You're going to

have to be, at the end of this case, the judge and jury of

whether Mr. Puana is the individual that's in that video.

You're going to have an opportunity throughout this

trial and when you deliberate to watch that video. And the

government has to prove beyond a reasonable doubt that that is

him.

The reason the government is calling KatherineKealoha, Chief Louis Kealoha, and Bobby Nguyen, all very close

to each other, family members, is because you can't tell who's

on that video.

If you could tell who was on that video, you'll look

at him, you'll look at the video, and it's over. They're

calling them because you cannot.

Now, you took an oath as a jury. And I want to thank

you for being on this jury because it is a privilege. It is

the utmost highest of constitutional duties to be a juror and

to have a jury trial. This is what our country is all about.

Not many countries have jury trials, so you have a special

privilege and honor to sit on this jury.

And I'm sure at the end of this case you willdeliberate with fairness and equality and impartiality, and

look at that video, and look at the evidence, and look at the


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lack of evidence, and return a verdict of not guilty.

What Mr. Tong said in his opening is correct, but he

left out a couple things. Where is the mailbox? You will not

receive any evidence from the government that the police

recovered a mailbox, nothing. You will not receive any

evidence from the government that the mail in the mailbox was

recovered or found, either on Mr. Puana or anywhere.

The government will not even show you the mailbox.

They're going to show you the pedestal. They will not even

show you the mailbox. I will. I want you to think during thistrial as part of this evidence, why is it that the government

didn't show you the mailbox, and I am.

MR. TONG: Your Honor, I don't like to object, but

this is really closing argument.

THE COURT: I agree. All right. Sustained.

Go ahead, Mr. Silvert.

MR. SILVERT: There's an old saying that things aren't

as they appear to be, that saying in this case goes in spades.

You will hear from the first witness through the end that

things are not the way they appear to be.

During cross-examination, I will bring that out, and

so I ask you to pay close attention during this trial to the

evidence that's brought out, both through the direct andthrough my cross.

Now, the government is going to present those three


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witnesses to say that they looked at the video, and it's

Mr. Puana in the video. In our case, I will present witnesses

to say that they looked at the video, and it's not him, and why

they believe it's not him. So you're going to have very

conflicting testimony over what's depicted in that video.

But as Mr. Tong kind of alluded, this case doesn't

start with the theft of a mailbox, it started back in September

of 2012. And you will hear that prior to September 2012, the

family was getting along pretty well. In fact, Katherine

Kealoha used to refer to my client as her favorite UncleGerster, but there was this complicated reverse mortgage that

they undertook, where my client's 93-year-old mother, who owns

a home, agreed to do a reverse mortgage that Katherine Kealoha

organized and functioned and ran in order to get money to buy

my client a house.

And after the money was spent to purchase his condo,

there was $150,000 left over. The money is gone, every penny

of it. The civil lawsuit alleges that Katherine Kealoha took

that money for her own purposes.

Now, again, that civil lawsuit will be decided soon.

It's pending. And Mr. Tong talked about that, that that

lawsuit is pending, and that is a critical piece of evidence

you're going to hear about because what happens here will havean impact on what happens there. And it's the defense position

that Katherine Kealoha and Chief Kealoha are saying it's my


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client for the reason to help them discredit him here today so

they can use that in the civil trial to their advantage.

Back in September of 2012, Florence Puana wrote a

letter to Katherine Puana -- Katherine Kealoha asking, what are

you doing, what happened to the money? Katherine Kealoha wrote

a letter back, and you're going to hear about that letter. And

that's before this lawsuit was filed. And I'm going to get

back to that in a moment.

When the lawsuit was filed in March of 2013, in June,

on June 19th, 2013, Katherine Kealoha went to a deposition, herdeposition in that case. They only finished half of it. They

had to continue it to another day because it hadn't finished.

That's June 19th. June 21st, the mailbox gets stolen. On

June 29th, my client is arrested.

Now, you will hear evidence that HPD -- many divisions

of HPD conducted an investigation into this case prior to my

client's arrest on June 29th. The government has said that it

was on June -- well, they didn't say a date because that's

important too, but at some point after my client's arrest, HPD

decided that there might be a conflict in asking the state

prosecutor's office to prosecute this case because Katherine

Kealoha was involved, so they referred the case to the United

States Postal Service.There was no difference, the evidence will show, in

their knowledge of who was involved in this case, Katherine


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Kealoha, from June 22nd, yet they investigated this case

through the arrest and never stepped back and said, you know

what, we have a conflict, let the federal government deal with

it.

And the evidence that we will bring out on cross will

show you why they did that, why they wanted to control the

investigation on behalf of Chief Kealoha and not the federal

government.

You're going to hear evidence of reports that are

falsified, reports that have been altered, surveillance thathasn't been recorded, all before my client was ever identified

as the perpetrator.

You're going to hear that the HPD from day one did not

investigate a single other person for this offense other than

Mr. Puana, before he was ever identified by Katherine Kealoha.

How is that?

You're going to hear evidence that Chief Kealoha and

Katherine Kealoha lived in a residence that was being

vandalized repeatedly. People were yelling obscenities. Shots

were fired at their house. So there are a bunch of people

during this time period who are doing things at their house,

breaking into the garage, vandalizing their car. No

investigation of who those people were, none.From day one, the evidence will show the only person

they went after was Mr. Puana. The only person they went after


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was the person who had the audacity to file a civil lawsuit

against Katherine Kealoha. That's what this case is about.

It's about Katherine Kealoha, it's about her reputation, it's

about her job, it's about her license to practice law, that's

what this case is about.

So I leave you with these words from Katherine

Kealoha, words that you're going to hear from her own mouth,

"How dare anyone make such malicious and false statements

against me? I will prove that this is a horrible lie. Any

person who repeats this lie should be damned ashamed ofthemselves for stating such crap. They will rue the day they

decided to state these twisted lies." Those are only some of

the words that she used in writing a letter to her 93-year-old

grandmother.

At the end of this case, I ask you to consider all the

evidence, and particularly, don't rely on me, don't rely on the

government, look at that videotape. And I submit to you at the

end of this case, you will find my client not guilty.

The government must prove that he's guilty beyond a

reasonable doubt, that is the burden, and I'm going to hold you

to your oath at the end of this case and ask you to return a

verdict of not guilty.

THE COURT: All right. The parties have concludedtheir opening statements. I am now going to invoke the witness

exclusionary rule, so, counsel, if you have any witnesses, they


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should remain outside of the courtroom unless and until they

testify in court and complete their testimony.

MR. TONG: Your Honor, United States calls Niall

Silva.

THE COURT: You may. Do you need assistance from

Mr. Nakamura or Mr. Myer?

Mr. Myer, could you assist Mr. Tong.

MR. TONG: They're much bigger and stronger, so maybe.

THE COURT: Good morning, sir. You can come right up

to the witness stand. Thank you.(Witness sworn.)

THE CLERK: Please state your first name and your last

name, and spell your first and last name.

THE WITNESS: It's Niall Silva. November, India,

alpha, Lima, Lima. Last name S -- Sara, India, Lima, victory,

alpha.

DIRECT EXAMINATION

BY MR. TONG:

Q Good morning, sir.

A Good morning.

Q Would you please tell us your present occupation.

A I'm presently retired.

Q Okay. And what did you do before retirement?A I was a police officer with the Honolulu Police

Department.


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Q When were you a HPD officer?

A From 1988 to December of 2013.

Q So you've been retired a little less than a year?

A Yes.

Q And can you tell the jury what your formal education

consists of?

A High school graduate with a bunch of college but no

degree.

Q All from here in Oahu?

A Yes.Q And during your time at HPD, what kind of assignments did

you have?

A Ranged from patrol, where everybody has to go, to the

warrant section, the firearms section, training division, solo

motorcycles, and my last assignment was with the criminal

intelligence unit.

Q And did you spend any time working in the video unit for

the HPD?

A Yes. I spent about eight years working in the video unit.

Q And what kind of work did you do in that capacity?

A Video editing, production, all the things you need to do

to -- we use to document departmental events.

Q Now, you said that your last assignment at HPD was withthe criminal intelligence unit; is that correct?

A Yes.


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Q What was your position within the CIU?

A I was a tech.

Q And what does that mean?

A I deal with surveillance, cameras, installation,

monitoring, recovering footage, maintenance, and also computer

things.

Q This was for the criminal intelligence unit, correct?

A Yes.

Q Tell us what that unit does.

A The criminal intelligence unit is a unit directly underthe chief's office that is vested with receiving, gathering,

and sharing information with other branches of law enforcement

for the bigger picture. And we're also vested with the

protection of the department.

Q Okay. And when you say protection of the department,

would that include its various officers and employees?

A Yes. On occasion, if there's an officer suspected of

doing something wrong, we would also have to do surveillance

and gather information in those cases also.

Q Now let me direct your attention to June 22 of 2013. Do

you have that date in your mind?

A Yes, sir.

Q And did you receive an assignment on that morning?A Yes, sir.

Q What was your assignment?


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A To go to 1018 Kealaolu and recover a hard drive from a

security system.

Q And what part of town is that address located in?

A In the Kahala area, near the golf course.

Q And do you know who lived there at the time?

A The chief of police.

Q Okay. And did you go to that location?

A Yes.

Q About what time did you arrive?

A Just around 9:00 a.m.Q And I believe you just said your assignment was to recover

some surveillance equipment or video?

A Footage, yeah, that's right.

Q Footage?

A The hard -- actually recovered the hard drive that is part

of a recording unit of the surveillance equipment.

Q Were you familiar with the surveillance equipment that

existed at that residence?

A Yes.

Q Can you describe for the jury generally what it consisted

of?

A It consisted of four cameras, a monitor and a recording

device.Q And who maintained that system?

A Who maintained it?


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Q Yes.

A I'm not sure who maintained it consistently, but I was

sent there to recover the footage from it.

Q But would it fall within the responsibility of the HPD?

A It could.

Q You're not sure?

A Yeah.

Q All right. And what did you do upon arriving at the

residence?

A When I arrived at the residence I met with Officer Nguyen,and I went to where the location of the device was, made sure

it was operating correctly, checked the date and time, and then

reviewed the footage. And then once I reviewed the footage,

then I removed the hard drive, and I put in a blank one.

Q And just to elaborate a little bit, what's involved in

checking to see that the system is working?

A You've got to -- there's a little mouse, and you have a

monitor. And you've got to use the mouse to go get into an

operating program for that surveillance equipment, and then you

can play back the footage. And it has time stamp what date and

time, and so you can play it back and review it.

And after I did all of that, I removed the hard drive.

So you have to, like, close down the system for a moment, takethe hard drive out and put another one, and then restart the

system.


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But when you stop the system, it's just the recording

part. It still has the same date and time running

continuously.

Q What were the results of your review of whether the system

was operational?

A Oh, the system was operational, and the date and time was

correct.

Q Okay. And so we're clear on that, you mean that the video

had a date and time stamped on it, and it corresponded to the

time that you saw?A Yes.

Q Okay. And you recovered the hard drive?

A Yes.

Q What did you do with the hard drive?

A Took it back to my office where I have a computer that has

a special program in there that's able to view security camera

footage. And I replayed that video. And then I took the video

clip and some still shots, and I put that on to what we

consider a master disk, and I made a copy. And then I put it

into a secured -- I have a file cabinet that only I can access,

and I kept it in there.

Q Okay. And I assume you reviewed all of the footage; is

that correct?A Yes.

Q And did you see footage of an event involving a mailbox?


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A Oh, yes.

Q Do you recall the approximate time of that incident

according to the cameras?

A I believe it was the day before I went there, the 21st, in

the evening time, about 2330 hours, around there, which is

11:30 p.m.

Q And after you saw that footage, what exactly did you put

into evidence?

A I put in -- the evidence, I took a video clip of before

the event and after the event and then a bunch of stills of theevent, and I submitted that into evidence.

Q And the items that you submitted into evidence, what was

the format?

A A DVD and CDs.

Q And did the images or moving pictures on those items

fairly and accurately depict what was on the hard drive?

A Yes.

MR. TONG: And if I may approach, Your Honor?

THE COURT: You may. Or you could use the digital

overhead, if you want.

MR. TONG: I think I need to identify it first, if I

may.

THE COURT: All right. Thank you.Mr. Silvert, are you stipulating? Is there any

dispute over this --


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MR. SILVERT: Your Honor, could I do a quick voir

dire, because there's new information I was unavailable -- I

was untold of.

THE COURT: Okay.

MR. SILVERT: Just a quick voir dire.

THE COURT: All right. So, Mr. Tong, you can

approach, set your foundation. And then you can ask to voir

dire.

BY MR. TONG:

Q Mr. Silva, I believe you have been handed one DVD and oneCD that have been marked as Exhibits 1 and 2 for

identification. Do you have those items in front of you?

A Yes, sir.

Q And let's take them one at a time.

Turning to Exhibit 1, do you recognize that particular

item?

A Yes.

Q And what is it?

A It is a CD that I submitted.

Q How do you recognize it as such?

A It has my ugly handwriting on it, and it has the case

number and date and time that I recovered the evidence.

Q So was that a fair and accurate recording of a portion ofthe hard drive that you recovered from the Kealoha residence on

June 24, 2014?


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A Yes.

MR. TONG: We would ask that -- well, let me do

Exhibit 2 first, and then I'll move them both in for voir dire.

THE COURT: All right.

BY MR. TONG:

Q Now if I may, Mr. Silva, let's take a look at Exhibit 2.

Could you tell us what that is?

A This is also a CD. And it's the second disk that I made,

and it also is for the same case.

Q And how do you recognize as it being one that you made inconnection with this particular case?

A It also has my handwriting on it.

Q Okay. And am I correct that those are the CDs that

include the video that you referenced in your testimony as well

as the still photographs?

A Yes.

MR. TONG: We would ask that Exhibits 1 and 2 be

received.

MR. SILVERT: Your Honor, may I have a quick voir

dire?

THE COURT: You may.

VOIR DIRE EXAMINATION

BY MR. SILVERT:Q Mr. Silva, you testified that you actually seized an

entire hard drive --


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A Yes.

Q -- is that correct? The hard drive only has video on it,

correct?

A Yeah, it has video on it, but with the software that I

have, it has capabilities to take snapshots of the still -- of

the video. So you run the video, and you can take a snapshot

of a certain portion of the video, which gives you a photo.

Q How many hours of video are on the hard drive?

A I don't know. Many hours.

Q But you testified you saw it all?A Yeah.

Q Could it have days?

A Oh, yeah. Yeah, you've got to sit there for hours and

look through that.

Q Is the hard drive in evidence -- has the hard drive, has

the chain of custody been preserved?

A I don't believe so.

Q So what we have here are just snippets of the hard drive,

and the hard drive itself has been destroyed?

A I'm not sure. I no longer work there.

Q But you're not here today to introduce the hard drive as

evidence?

A No.Q Just a piece of it?

A Just a copy of what was on the hard drive.


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MR. SILVERT: Thank you.

Your Honor, may we have sidebar?

THE COURT: So what I'll do is we'll take it up during

the break with regard to this. I won't receive it into

evidence at this time.

Do you have an area that you can go around, or we have

to resolve it now? Or you need it to -- okay, let's take a

sidebar.

MR. TONG: Maybe it would help if I could ask a couple

of questions.THE COURT: Yes, you may.

DIRECT EXAMINATION (Continued)

BY MR. TONG:

Q So you reviewed the entire hard drive, correct?

A Yes, sir.

Q And am I correct that the hard drive showed images of the

front of the residence, correct?

A Yes, sir.

Q And part of the screens showed a mailbox, correct?

A Yes, sir.

Q A mailbox sitting on top of a pedestal, correct?

A Yes.

Q In your review of the entire hard drive, did you see anyimages showing anyone taking the mailbox from that pedestal?

A Yes.


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Q And is it those images that were recorded on Exhibits 1

and 2?

A Yes.

Q On the portion of the hard drive that was not recorded on

Exhibits 1 and 2, did any of those show any other individual

coming up to the mailbox and yanking it off the pedestal?

A No.

MR. TONG: Thank you, Your Honor.

THE COURT: So you're asking that it be received?

MR. TONG: I renew my offer, yes.THE COURT: All right.

MR. SILVERT: Your Honor, I have a significant

objection, if I could make it at sidebar.

THE COURT: All right. So you can.

(Sidebar.)

THE COURT: Let the record reflect the presence of

Mr. Silvert, Ms. Hattan, and Mr. Tong.


MR. SILVERT: Your Honor, the actual evidence is the

hard drive. He simply took surveillance -- some portion of the

hard drive. The reason this is so -- it's the hard drive

that's the evidence, not what he took from it, and they're not

offering that.More importantly, in discovery and subpoenas, I

specifically asked both the government and HPD for copies of


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any of the video from a two-day period of time, and I can show

you the documentation and affidavit stating there is no such

evidence. They don't have any evidence.

So that either indicates -- because he just said that

they have it for days -- that either they've destroyed the

piece of evidence, the actual piece of evidence, or they lied

in their response.

I have not seen the hard drive. I was never told

there was a hard drive. And that's the evidence. So I object

that any of it be introduced.THE COURT: All right. Over your objection, it's

received.


(End of sidebar.)

THE COURT: So the court is receiving into evidence

Exhibits 1 and 2.

(Government Exhibit Numbers 1 and 2 were received in

evidence.)

THE COURT: Mr. Tong, your witness.

MR. TONG: Your Honor, I apologize, having just come

into the case, I'm not sure where the original court exhibits

are. Have they been provided to Mr. Nakamura, the binder of

the pictures?THE COURT: I'm not sure. Mr. Nakamura?

MR. TONG: If he has them, if they may please be shown


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to Mr. Silva.

THE CLERK: Mr. Tong, are you referring to 1. --

MR. TONG: Yes, exactly. Thank you, sir.

THE CLERK: Your Honor, Exhibits 1.1, 1.2, and 1.3 are

with the witness.

THE COURT: All right. Your witness, Mr. Tong.

BY MR. TONG:

Q All right, Mr. Silva, I want to direct your attention to

the exhibits Mr. Nakamura just referenced. Turning first

to -- well, let's do them all three at a time. Would youplease examine Exhibits 1.1, 1.2, and 1.3.

A Okay.

Q Do you recognize those three photographs?

A Yes.

Q And what are they?

A They're stills that I captured from that hard drive. And

it's representing that -- that event that was at the front of

the chief's house. This camera is on the street's edge

pointing multi direction.

Q And do Exhibits 1.1, .2, and .3 fairly and accurately

depict the images that were on the hard drive that you

recovered?

A Yes, sir. And you will see the date and time stamps onthose photographs.

MR. TONG: We would ask that Exhibits 1.1, 1.2, and


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1.3 be received in evidence.

THE COURT: Any objection?

MR. SILVERT: Over my objection I made before.

THE COURT: All right. Your objection is incorporated

and is overruled. It's received.

(Government Exhibit Numbers 1.1, 1.2 and 1.3 were

received in evidence.)


May we ask Mr. Nakamura to display Exhibit 1.1,

please.BY MR. TONG:

Q Officer Silva --

THE CLERK: Your Honor?

THE COURT: Yes, please publish.

THE CLERK: It's published to the jury.

MR. TONG: Okay. Ladies and gentlemen, are all your

screens working? Okay. I see nods.

BY MR. TONG:

Q Officer Silva, you referenced a date and time stamp,

correct?

A Yes.

Q And where would that appear in this particular picture?

A It's in the upper left-hand corner.Q Would that be the area that I'm sort of making a purple

arrow and circle in?


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A Yes.

Q And can you decipher how to read that?

A It's the year, the month, and the day.

Q And then there appears to be, after 6-21, a reference

to -- whoops, not there.

A The next -- over, yeah.

MR. TONG: Mr. Nakamura, how do I erase this again?

Just tap something?

THE CLERK: In the corner.

MR. TONG: Left or right? Clear, got it.Thank you, sir.

BY MR. TONG:

Q There is a reference here to --

A Yeah, that would be hours, minutes, and seconds.

Q Okay. And in military time, how does that translate for

those of us civilians?

A Basically 20 -- 2331 hours.

Q So that is right before midnight?

A Yes. It would be 11:31 p.m.

Q All right. And in the right, there is a channel -- which

I'm goofing up here --

A Yes.

Q Okay.A No artwork, sir. But that CH1 would designate what camera

that was.


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Q And where in this particular photograph does it show a

mailbox?

A In the lower left-hand corner --

Q I'm going to try --

A -- at the cursor.

Q All right. And you said this was used by -- I mean, this

was on the hard drive that you recovered, correct?

A Yes.

Q And what use, if any, did you make of this particular

photograph?A Excuse me?

Q What did you use this photograph for? I mean, there was a

purpose?

A Oh, yeah, the video that I recorded on the disk -- when

you review the video on the software you're able to see the

date and time stamp on the video, but when you download it to a

disk, you lose the date and time on the video, but when you

take still shots, the still shots retain the date and time.

So I use it to give you an accurate representation of

date and time according to where the photos are taken in the

video.

Q Okay. And am I correct your assignment that day was

basically to recover the evidence --A Yes.

Q -- and put it in evidence?


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A Yes.

MR. TONG: Thank you.

May I have one moment, Your Honor?

THE COURT: You may.

MR. TONG: I have nothing further. Thank you.

THE COURT: Thank you.

Mr. Silvert, your witness.

MR. SILVERT: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. SILVERT:Q I just want to understand something about the time and

date that you have. The video itself that's on the hard drive,

when you watch it, does it have a time date on it?

A Yes, sir.

Q But when you download it, it does not?

A Yeah, when you download it as a video, it doesn't show it

on top of the video when you play it.

Q Right. So there's no time stamp, no date on the video

that you recorded -- that you downloaded?

A Yes.

Q So these government's exhibits, the two exhibits that you

downloaded that day, did you put the time stamp on them?

A Excuse me, what do you mean?Q The videos -- not the still photos, but the videos, the

clips?


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A No, I have the video. The still photos are there to

reference the video, so you know what the time is on the video.

Q So the video itself that -- during mixing doesn't have a

time, date or stamp on it?

A Correct, sir.

Q And the hard drive itself, you don't know where that is?

A No, sir.

Q And these are -- did someone direct you what to download

and what not to download?

A Well, my directions were to review it and record whateverwas needed.

Q And you made that decision of what was needed?

A Yes, sir.

Q No one else?

A No one else.

Q Now, you said there were four cameras, correct?

A Yes.

Q Well, that's not true. There are six, right?

A It's over a year ago, sir, and I'm retired.

Q Well, I understand that, but you were very positive. You

were asked a question by the government, and you gave an

answer, right? Is that correct?

A Yes, sir.Q If you weren't sure, you're an officer, you've testified

many times, you know how to say, I'm not sure, correct?


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A Well, that was my recollection, sir.

Q So your recollection is four video cameras?

A Yes.

Q Would your recollection be refreshed if I showed you six

videos?

A It depends.

MR. SILVERT: Your Honor, may the witness be shown

triple Q -- quadruple Q?

THE COURT: If you have it, you can put it on the --

MR. SILVERT: I have it on -- but just for thewitness.

THE COURT: All right. So the jury --

THE CLERK: Sorry, Your Honor, the jury is muted.

THE COURT: Yes. Yes. So you can direct him to look

at his screen.

BY MR. SILVERT:

Q Is this a reflection of what you -- of what you received

from the hard drive?

A Yes, sir. You're correct.

Q So there are six videos?

A Yes. Six cameras.

Q Six cameras?

A Yes.Q You chose to download only two, correct?

A Yes.


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Q And you chose to download only for a specific period of

time, right?

A Right, the time that covered the event.

Q Right. You didn't download or save what happened the day

before, correct?

A No.

Q Or the day before that, correct?

A No.

Q But you could have?

A Yes, I could have.Q You could have downloaded other sections, other videos,

other than the two cameras that you decided to download,

correct?

A Yes.

Q The purpose of downloading this was to preserve it so that

it could be used to try to determine who stole the mailbox,

right?

A Correct.

Q The vehicle that's in the -- these clips, that would

really help determine who stole the video, correct?

A Yes, sir.

Q If you could get a license plate, correct? Is that right?

A Yes.Q If you could get a good shot of the car, correct?

A Yes.


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Q So you want the best, clearest shot you could get because

then you find out who's driving the vehicle, right?

A In a perfect world.

MR. SILVERT: Could the witness be shown -- well, one

moment, Your Honor.

Before I leave this, Your Honor, I would ask that this

still shot be published to the jury.

THE COURT: Do you want to receive it in evidence?

MR. SILVERT: Yes. Your Honor, could this be

published to the jury?MR. TONG: Is he offering the exhibit?

MR. SILVERT: I'm offering this still shot --

MR. TONG: May I voir dire?

THE COURT: You may.

VOIR DIRE EXAMINATION

BY MR. TONG:

Q Mr. Silva, you have in front of you, I guess Exhibit QQQQ.

And that appears to consist of six different still shots; is

that correct?

A Yes.

Q And do you recognize those shots?

A Yes.

Q And were they of the different locations in the Puanaresidence?

A Yes.


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MR. TONG: All right. We have no objection.

THE COURT: All right. Received.

MR. TONG: I'm sorry, the Kealoha residence.

THE CLERK: I'm sorry, counsel, I do not have QQQQ on

the list.

MR. TONG: And we don't have the exhibit either, to

the best of my knowledge, so.

THE CLERK: There's no updated exhibit list.

THE COURT: All right. So you'll get that to us, but

there's no objection by the government, so it is received.We'll indicate it. And Mr. Silvert is to get us the hard copy

for the record.

THE CLERK: Your Honor, may I publish?

THE COURT: Yes, publish, please.

(Defendant Exhibit Number QQQQ was received in

evidence.)

CROSS-EXAMINATION (Continued)

BY MR. SILVERT:

Q So, again, this is a still shot of the view at one

particular time that you would have seen from the six cameras,

correct?

A Yes, sir.

Q Now, you watched each and every one of these cameras,correct?

A Yes, I watched it like that initially.


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MR. SILVERT: Your Honor, could the witness be shown

PPPP?

THE COURT: He may.

THE CLERK: The jury is muted.

BY MR. SILVERT:

Q Do you recognize that shot?

A It's not up yet, sir.

THE CLERK: I'm sorry. Counsel, is it double P?

MR. SILVERT: It's quadruple P.

THE COURT: All right. So your question.BY MR. SILVERT:

Q Do you recognize that shot?

A Yes.

Q Isn't that from one of the cameras?

A Yes.

Q It's from one of the cameras you didn't download, correct?

A Yes.

Q Isn't that a nice shot of the car?

A It's all right.

Q If you took a still shot, you might be able to even see

the license plate, right?

A No.

Q You don't think so? Did you try?A I tried using whatever capabilities of this program to get

a clearer shot, but that's it.


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Q Isn't that the best shot of the back of the car that you

ever saw --

A I'm not sure.

Q -- of all the video clips that you watched? You're not

sure?

A No.

Q But today, if I asked you -- or asked HPD to make a better

shot of this, we couldn't because there's no hard drive left,

correct?

A I'm not sure.Q You said you went to the residence -- you went to the

residence at 9:00?

A Excuse me -- yeah, at around 9 a.m., yeah.

Q Who directed you to go to the residence?

A My lieutenant called me and sent me down there.

Q Who's your lieutenant?

A Lieutenant Derek Hahn.

Q Lieutenant Hahn is the acting captain of CID?

A At this time, I believe.

Q So he gave you orders to go to the house, correct?

A Yes, sir.

Q And this was at 9:00 in the morning?

A Yes, sir.Q When you went to the house, who was there?

A Officer Nguyen was there.


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Q Officer Nguyen?

A Yes.

Q And who's he from, what division?

A He also works in the CIU.

Q And Ms. Kealoha was there?

A I didn't talk to anybody except for Officer Nguyen.

Q Do you know if she was there?

A I don't know.

Q Who gave you access to the house?

A Officer Nguyen was there prior to me.Q So he got there first?

A Yes.

Q Even before 9:00?

A Before I arrived, yes.

Q And this is HPD equipment? I want to be perfectly clear

about that. This is HPD equipment?

A I believe so, sir. I'm not sure because I didn't install

it.

Q You testified on direct it was HPD equipment?

A I didn't say it was HPD equipment.

Q So you don't know whose equipment it is?

A It could be his private equipment.

Q So you don't know?A I'm not sure because I didn't install it, sir.

Q Are you aware that the report, the first report of this


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the morning? What were you told?

A I was told to go down there and recover the hard drive.

Q Did anyone tell you why?

A Not initially.

Q When were you told?

A I'm not sure, but it's after I got back to the station.

Q Before you looked at the video?

A No, I looked at the video at the house.

Q How did you know what you were looking for? You were just

checking that it was working?A Yes.

Q So you weren't looking for anything when you looked at the

video at the house, you were just making sure it worked?

A Yes.

Q Then back at the police station, you were told what?

A That a crime had occurred, and that I should look for the

footage.

Q What time were you told that?

A I'm not sure, sir.

Q You know how to write police reports, correct?

A Yes, sir.

Q You write police reports all the time, correct?

A Yes.Q It's your duty to do that, right?

A Yes.


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Q Did you write a police report detailing what you were told

to do when you arrived at the house, when you were told what

the crime was, and when you made the video?

A No.

Q No report at all?

A No.

Q Isn't it a disciplinary action for failing to file a

police report?

A Only if I was required to.

Q And you were not required to put down any of thisinformation in a police report?

A Not in my capacity as a tech.

Q But in your capacity as a tech, you arrive at a certain

time, correct?

A Yes.

Q You're told certain things, right? You download the video

at a certain time, correct?

A Yes.

Q None of that is recorded?

A I think it's recorded on that follow-up page that I

submitted with the evidence.

Q Right. The only thing that's recorded is the time you

took the video, correct?A Yeah.

Q And that would be at 2331, correct?


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A No, that's the time of the occurrence of the crime.

Q Okay. And the time that you were assigned and that you

recovered the footage was at 8:59 in the morning, correct?

A Correct, sir.

Q Okay. I'd like to show you --

MR. SILVERT: Can it be published to the witness.

BY MR. SILVERT:

Q -- Exhibit -- Exhibit AA.

THE CLERK: The jury is muted, Your Honor.

THE COURT: Thank you.BY MR. SILVERT:

Q Do you recognize this document?

A Yes, sir.

Q Is this the document you prepared regarding what time you

were assigned and what time you recovered the videotape?

A Yes.

Q And you recognize that you created it?

A Yes.

MR. SILVERT: One moment, Your Honor.

BY MR. SILVERT:

Q And in that document, it states that on June 22nd at 8:59,

you recovered the footage, correct?

A Yes.Q That document doesn't state where you recovered the

footage?


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A Well, the footage was over there at 1018 Kealaolu.

Q Say that again.

A The hard drive was located at 1018 Kealaolu, on the top of

the page.

Q That says where it comes from, correct?

A Yes.

Q So it wasn't recovered from HPD, it was recovered from the

residence?

A Yeah. The hard drive was, yeah.

MR. SILVERT: Your Honor, I'm going to move this --I'd ask that this be moved into evidence.


Any objection, Mr. Tong?

MR. TONG: This being Exhibit AA?

MR. SILVERT: That's correct.

THE COURT: Yes. It's been identified as the

follow-up report.

MR. TONG: Is it three pages?

MR. SILVERT: Your Honor, it's three pages. I'll move

the other two pages.


MR. SILVERT: Could the witness be shown the next

page?BY MR. SILVERT:

Q This is also a document you prepared, correct?


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A Yes, that's the evidence sheet.

Q Right. So the evidence sheet you created, correct?

A Yes.

Q It confirms that at 8:59 in the morning, you recovered the

evidence?

A No, that's -- the evidence sheet only -- oh, yeah -- well,

up on top -- on my tagging, where it says hallmarked --

Q Yes.

A -- yeah.

Q You're doing this because you want to create a chain ofcustody for the videotape, correct?

A Yes.

Q So it's very important that this information is correct

because -- so no one can challenge how you got the video and

where it went, correct?

A Yeah.

Q If you could turn to the next page. This is another page

of your report, correct?

A Yes.

Q Same thing, it confirms 8:59 in the morning, correct?

A Yes.

MR. SILVERT: Your Honor, I move that AA be admitted

into evidence.THE COURT: Any objection?

MR. TONG: No objection.


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THE COURT: Received.

MR. SILVERT: Could the first page be published to the

jury?

THE COURT: It may.

(Defendant Exhibit Number AA was received in

evidence.)

BY MR. SILVERT:

Q So this is the page we talked about before talking

about --

THE CLERK: Your Honor, sorry, the document ispublished.

THE COURT: The record will reflect the document is

published. Your question.

BY MR. SILVERT:

Q This is the page we were just talking about before, where

it says you recovered the videotape at the house on a certain

time, correct?

A Yes, sir.

Q And you recovered one original and one copy, correct?

A No, that's what I submitted.

Q That's what you submitted?

A I released the one original and copy of the surveillance

footage to evidence and one to the detective.Q That's correct. So that's correct, right?

A Yes.


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Q Okay. If you were to change the report somehow, you would

have to do a follow-up report?

A Yes, I'd have to write a follow-up.

Q You wouldn't use the same piece of paper and write over

it?

A No, it would be a different type of follow-up form.

Q Right. Because this is the piece of paper. Any time you

change a report or add something, you're going to file a

different piece of paper, correct?

A Yes, sir.Q Not use the exact same one?

A Right.

Q In fact, it would be improper?

A Yeah.

MR. SILVERT: Your Honor, if we could not have this

published to the jury anymore.


MR. SILVERT: I'm moving on.

THE COURT: Let it be muted.

MR. SILVERT: Could the witness be shown JJJ?

THE CLERK: Your Honor, the jury is muted.

BY MR. SILVERT:

Q Do you see this form?A Yep.

Q Same form as the other -- as AA that we just talked about,


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correct?

A Right.

Q But there's a difference?

A Well, it's a different form physically.

Q That's correct. So in the box where it says, I

release --

THE COURT: Well, before you have him testify about

it, would you move it into evidence?

MR. SILVERT: Yes. Your Honor, may I move it into

evidence?THE COURT: Any objections?

MR. TONG: No, Your Honor.

THE COURT: Received.

(Defendant Exhibit Number JJJ was received in

evidence.)

MR. SILVERT: Your Honor, may it be published to the

jury?

THE COURT: It may be published to the jury.

THE CLERK: I'm sorry, Your Honor, the exhibit has

been published.


BY MR. SILVERT:

Q This is the exact same form as we just saw, AA, correct?A Yeah, it's the same format.

Q But this one is different in that where it says, I release


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blank originals and/or blank copies of surveillance, instead of

the typed number one, there's handwritten number four, correct?

A Yes.

Q In fact, it looks like it's actually not even a typed

number four, it's handwritten, correct?

A I'd have to see the original to be sure.

Q Well, did you do that? Did you make that change?

A I might have. I don't know. You know, in the other two

copies -- I did submit four disks, yeah.

Q That's correct. But the government asked you -- well, Iasked you about Exhibit AA, and you said that was accurate, and

that was what you filled out, correct?

A Yes.

Q But you altered it to be 4, 4, correct?

A Yes.

Q You didn't use a different form as you said you would have

to do if you were going to change a document, correct?

A Yes.

Q You just altered it, correct?

A (No audible response.)

Q So departmental rules, standards of conduct in reporting

requires you to prepare a different report, correct?

A I'm not sure exactly what the administrative rules say,sir.

Q How long were you a police officer?


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A A little over 25 years.

Q And there's policy statements issued to police officers on

how to do -- how to behave, how to conduct, and how to file

reports, correct?

A Yes, sir. All the time.

Q And you must have been familiar with those rules, correct?

You have to be, you're required to be, aren't you?

A Yes.

Q You know, according to those rules, as you testified

before, you can't alter a document that's already beenprepared, you have to prepare a new one and change it, correct?

A All that information other than that number is all the

same.

Q I understand that. But it's not the same as the original

document, correct?

A It's not the same as the other document, correct.

Q And, in fact, all the typing on it is the same except for

those numbers, correct?

A Yes.

Q Even the signature at the bottom, which is yours, correct?

A Yes.

Q Even the date, the ID number, correct?

A Yes.Q Even the date and time submitted, correct?

A Yes.


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Q So you used the same form and altered it, correct?

A Yes, sir.

Q And that's improper?

A Excuse me?

Q That's improper.

A What is your point?

Q It's not a point. Is it proper or improper to do that?

A What's done is done, sir.

Q Right. What's done is done, so, so be it, correct?

Correct?A Correct to what?

Q So be it. Doesn't matter you altered the form, you

violated the policies of HPD, we don't care?

MR. TONG: Your Honor, this is argumentative, even if

it's cross.


MR. SILVERT: I'll rephrase it.

THE COURT: Okay, thank you.

BY MR. SILVERT:

Q So, to you, if you alter a document doesn't really mean a

lot to you, right?

A It does.

Q Do you think it's significant that the wrong documentmight be given to the prosecution or to any prosecutor rather

than the correct document?


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A Yes, sir.

Q So -- okay. What happened to the other three copies that

you made?

A They went over to the command, to the lieutenant.

Q So there's a property -- there's a sheet that recounts --

if you look at --

MR. SILVERT: If we go back to AA again. Then can we

go to the second section.

This has been introduced into evidence, Your Honor.

May I have it published to the jury?THE COURT: It may be published.

BY MR. SILVERT:

Q This page, at the bottom, it says, chain of custody,

right?

A Yes, for the originals.

Q Right. For the original, not the extra copies?

A Yes, sir.

Q So if you download and you make one copy, and then you

make three more, this only has to be with the one copy?

A Yes, that's just with the originals that go into evidence.

Q So the other three copies, we have no idea where they

went?

A No, sir.Q Just the one?

A Yes.


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Q And you have no report of what happened to those other

three documents?

A No, sir.

Q I'd ask you to look at Government Exhibit 7.

THE CLERK: Your Honor, the jury has been muted.


BY MR. SILVERT:

Q Do you recognize that document?

A Yes.

Q That's the document from AA, it's the first page that onlyhas the one video, correct?

A Right.

Q So that document ended up in the hands of the government,

correct?

A If you say so.

Q Well, it's their exhibit, Government Exhibit 7.

MR. TONG: Your Honor, there's no foundation.

THE COURT: It calls him to speculate, so sustained.

Ask another question.

BY MR. SILVERT:

Q This isn't the altered document, correct?

A No.

Q This isn't the one that's correct, that actually shows youmade four copies, correct?

A Yes.


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Q It's the one that shows you only made one?

A Yes.

Q Did Katherine Kealoha see this -- see the video in your

presence?

A No, not in my presence.

Q You had no conversation with her?

A No.

MR. SILVERT: Nothing further.

Oh, one moment, Your Honor. My better half.

Your Honor, I don't know if I admitted PPPP, the stillphoto, but I would move to admit it. That's the vehicle.

THE COURT: Has it been received? I believe we

published it, so I think it is received.

MR. TONG: No, it was not offered, and we have no

objection.

THE COURT: Do you want to --

MR. SILVERT: Yes.

THE COURT: There's no objection. So is that double

P?

THE CLERK: Quadruple P.

THE COURT: Quadruple P is received in evidence.

(Defendant Exhibit Number PPPP was received in

evidence.)MR. SILVERT: Your Honor, may we publish it to the

jury?


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THE COURT: You may.

THE CLERK: Your Honor, quadruple P is published.


BY MR. SILVERT:

Q So this is the still photo we were talking about, about

the car, that has not been downloaded, correct?

A Yes.

MR. SILVERT: Thank you. Nothing further.

THE COURT: Redirect, Mr. Tong?

MR. TONG: Yes, thank you, Your Honor.REDIRECT EXAMINATION

BY MR. TONG:

Q Mr. Silva, a few follow-up questions. You were just shown

a picture of a white car, correct?

A Yes.

Q And is it true that the portions of the video that you

preserved in evidence also showed a white car?

A Yes.

Q And it shows the white car driving down the street and

stopping, correct?

A Yes.

Q Now, you were shown a still image showing six different

cameras at the residence; is that correct?A Yes.

MR. TONG: May I see that image, please?


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I have no objection if it's published, Your Honor,

it's in evidence. May I ask that it be shown to the jury?

THE COURT: It shall.

MR. TONG: I don't know the exhibit number, he has to

tell us. QQQQ.

Does the jury have that?

THE CLERK: Your Honor, the QQQQ has been published.

BY MR. TONG:

Q And Officer Silva, there appears to be a black car in at

least two of those images; is that correct?A Yes.

Q And did you know whose car that was?

A It's the chief's car.

Q All right. So that was not of particular concern to you

as a technician saving the images, correct?

A Yes.

Q All right. Having reviewed Exhibit QQQQ, did that refresh

your memory as to how many surveillance cameras there were at

the house?

A Yes.

Q And how many were present?

A Six.

Q Now, you were asked a number of questions about these tworeports.

MR. TONG: We can remove that, if you would, please.


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BY MR. TONG:

Q The two reports -- and I'll use Mr. Silvert's word

"altered" -- let's take a look at Exhibit AAA, please.

MR. TONG: If we may have that published, Your Honor?

THE COURT: You may.

MR. SILVERT: It's double A.

MR. TONG: Double A.

THE CLERK: I'm sorry, that's triple --

MR. TONG: Double A, Defense Exhibit double A, please.

THE CLERK: Your Honor, the exhibit has beenpublished.

BY MR. TONG:

Q Okay. And this is the document that you prepared after

seizing the evidence from the Kealoha residence; is that

correct?

A Yes.

Q And I believe the part that Mr. Silvert was focused on,

first off, it did document the location of the seizure; is that

correct?

A Yes.

Q 1018 Kealaolu Avenue, correct?

A Yes.

Q As well as the time of the events, June 21, '13, at11:31 p.m., correct?

A Yes.


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Q And these items, the equipment checklist represent the

items that you testified to earlier that you did to assure that

the system was working; is that correct?

A Yes.

Q And everything that was working, you initialled NS; is

that correct?

A Yes.

Q All right. And it seems that you were questioned about

this portion, where you said you released one original and one

copy, correct?A Yes.

Q And right below that, there's the section that says the

original went into evidence and the copy went to the detective;

is that correct?

A Yes.

Q Now, what's the purpose of documenting that the original

went into HPD evidence?

A The original is the one that's the most important because

you want it to be true and accurate and not have anybody

blaming later.

Q And once it gets into evidence, it's maintained by the

evidence room; is that correct?

A Correct.Q And that's why when you saw the exhibit, it reflected

everybody that had touched the evidence after it was put into


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the evidence room, correct?

A I don't think -- oh, yeah, from me to whoever it went to,

it shows the chain of custody, yeah.

Q And chain of custody means what, to the jury, if you

could?

A Just making sure that, from my hands, that original went

into evidence, and who accepted it into evidence.

And if it's been removed from evidence for any reason,

it'll document who it went from in evidence and who it went to,

so that we know that there was no time, you know -- or there'scontinuity that nothing had been tampered with, yeah.

MR. TONG: And if we may please see -- have published

page two of Exhibit AA, please. May we, Your Honor?

THE COURT: You may.

BY MR. TONG:

Q Do you have that in front of you, Mr. Silva?

A Yes.

MR. TONG: And do the jurors have that in front of

you? Okay.

BY MR. TONG:

Q And, Mr. Silva, could you explain what this document is,

page two of Exhibit AA.

A That's the evidence sheet.Q Okay. And did you prepare that document?

A Yes.


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Q And that basically shows when you placed evidence into the

evidence --

A Room, yes.

Q -- custodian's care, correct?

A Yes.

Q And there's a section in the middle that I'm trying to

circle called chain of custody, correct?

A Yes.

Q And what does that represent?

A That represents that I put two items into evidence, andthe receiver was Johnette Moses from the evidence room.

Q Now the other document that you were shown, Exhibit JJJ --

MR. TONG: May we publish that, Your Honor?

THE COURT: You may.

THE CLERK: Your Honor, JJJ, previously admitted, is

published.

BY MR. TONG:

Q It says you put four copies -- four original and/or four

copies to evidence and copy to the detective, correct?

A Yes.

Q Was there any difference in the evidence that you released

to the detective, the extra three copies, between the copies

and the original placed in evidence?A No.

Q You just -- what did you do to create those copies?


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puana trial transcript

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