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Electronically Filed
Supreme Court
SCWC-14-0001302
31-MAY-2017
09:07 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
LESTER S. TSUJIMURA,
Petitioner/Defendant-Appellant.
SCWC-14-0001302
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001302; CASE NO. 1DTA-14-00512)
MAY 31, 2017
McKENNA, POLLACK, AND WILSON, JJ., AND NAKAYAMA, J., CONCURRING
AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
It has been settled for decades that the right to
remain silent is a fundamental component of the right against
compelled self-incrimination guaranteed by article I, section 10
of the Hawaii Constitution. What has been subject to
disagreement among several jurisdictions is the point in time at
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which the right to remain silent attaches. In 2008, this court,
in State v. Mainaaupo, 117 Hawaii 235, 178 P.3d 1 (2008), held
that the right to remain silent attaches at least as of the time
that a person is arrested. In this case, the primary question
that we resolve is the one that the Mainaaupo court left open:
whether the right to remain silent attaches prearrest and, if
so, in what manner and to what extent may prearrest silence be
utilized by the State in a criminal trial.1
I. FACTS AND PROCEDURAL BACKGROUND
A. Pretrial
On February 7, 2014, Lester Tsujimura was charged by
complaint with Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes
(HRS) § 291E-61(a)(1) and/or (a)(4) (2007 & Supp. 2012).2
1
The secondary issues that we also explore are the statutory
meaning of “alcohol” within HRS § 291E-1 and the sufficiency of the complaint
in light of that statutory meaning.
2
The complaint charged as follows:
On or about the 15th day of January 2014, in the City and
County of Honolulu, State of Hawaii, LESTER S. TSUJIMURA
did intentionally, knowingly or recklessly operate or
assume actual physical control of a vehicle upon a public
way, street, road, or highway while under the influence of
alcohol in an amount sufficient to impair his normal mental
faculties or ability to care for himself and guard against
casualty; and/or did operate or assume actual physical
control of a vehicle upon a public way, street, road, or
highway with .08 or more grams of alcohol per one hundred
milliliters or cubic centimeters of blood, thereby
committing the offense of Operating a Vehicle Under the
Influence of an Intoxicant, in violation of 291E-61(a)(1)
and/or (a)(4) of the Hawaii Revised Statutes.
2
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Tsujimura moved to dismiss the complaint for failure to state an
offense, arguing that the complaint was insufficient for failing
to define the term “alcohol” and thus did not sufficiently
apprise him of what he must be prepared to meet at trial.3
At the hearing on the motion,4 Tsujimura argued that
the statutory definition of alcohol includes only alcohol that
was produced through distillation, and, as such, the definition
must be included in the complaint. The State maintained that
the motion to dismiss should be dismissed as untimely. On the
merits, the State contended that the definition of “alcohol”
also includes ethyl alcohol regardless of origin and that a
person of common understanding would understand what “alcohol”
means within the OVUII statutory scheme. In reply to the
State’s timeliness argument, Tsujimura argued that the motion to
dismiss for failure to state an offense is jurisdictional and
may be raised at any time.
The District Court of the First Circuit (district
court) dismissed the motion to dismiss as untimely.
Alternatively, the court determined that the statutory
3
Tsujimura also filed a motion to suppress the results of any
device that measured his blood alcohol content, evidence gathered post-arrest
before he was given Miranda warnings, and all statements he made in violation
of his constitutional rights. At the hearing, the State indicated that it
was proceeding only on the HRS § 291E-61(a)(1) charge, in response to which
Tsujimura withdrew his motion to suppress.
4
The motion and trial proceedings in this case were presided over
by the Honorable Paul B.K. Wong.
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definition of alcohol is not restricted to alcohol derived from
distillation and that a person of common understanding would
understand what alcohol means even if the complaint does not set
forth its statutory meaning. The district court reasoned that
even though the plain language of the statutory definition of
alcohol appears to include only alcohol produced by
distillation, the court would “ignore the plain reading . . . to
avoid an absurd result” in which only persons impaired by hard
liquor could be prosecuted for OVUII.
B. Trial
At trial, Officer Thomas Billins of the Honolulu
Police Department testified that, on January 15, 2014, at
approximately 12:05 a.m., he saw Tsujimura driving a white SUV
on the Moanalua Freeway just past the Ala Kapuna overpass.
According to Officer Billins, Tsujimura entered the shoulder
lane several times, “at times straddling the . . . right-most
lane and the right shoulder.”
Officer Billins turned on his light and sirens to
notify Tsujimura that he was being stopped, but Tsujimura was
not responding, so Officer Billins used the loudspeaker system
in his police car to request Tsujimura to pull over. After
Tsujimura stopped, Officer Billins approached to inform him of
the reason he was stopped and requested his driver’s license,
registration, and insurance information. Tsujimura immediately
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produced his driver’s license, but he had difficulty producing
his registration and insurance information and had to fumble
through a stack of documents.
Officer Billins testified that Tsujimura had a very
flush red face, his speech was slurred, and he had red and
watery eyes. Officer Billins added that he smelled an odor of
alcoholic beverage emitting from Tsujimura’s breath or from
inside the vehicle cabin. The officer related that he requested
that Tsujimura participate in standardized field sobriety tests
(FSTs), to which Tsujimura agreed. When asked whether he
noticed Tsujimura having had any difficulty exiting his vehicle,
Officer Billins stated that he did not “see him limping or
anything like that,” that he got out of his vehicle normally,
and that he did not “fall down or anything.” Before performing
the FSTs, Tsujimura told Officer Billins that he had an old
injury to his left knee, “[s]omething about his ACL and it was a
bad knee,” and that he was taking medication for his high blood
pressure and diabetes.5
Officer Billins testified that, while he was
conducting the horizontal gaze nystagmus test, he observed that
Tsujimura’s face was flushed and red and that he had a slight
5
Prior to administering the FSTs, Officer Billins asked Tsujimura
six questions: “If [he is] diabetic or epileptic, if [he is] under the care
of a doctor or physician, if [he has] an artificial or glass eye, or if [he
has] any speech impediments.”
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sway from left to right. Over the objection of the defense,
Officer Billins testified as to Tsujimura’s performance on the
walk-and-turn test.6 Officer Billins stated that Tsujimura broke
his heel-to-toe stance twice, stepped off the line five times,
failed to walk in a heel-to-toe fashion on all steps, failed to
keep his hands six inches or less from his side, stumbled while
turning, and had to raise his arm above shoulder level for
balance, all of which did not comply with Officer Billins’
instructions and demonstration of the walk-and-turn test. When
asked about Tsujimura’s performance of the one-leg stand,
Officer Billins stated that Tsujimura was unable to keep his
foot six inches above the ground, put his foot down on several
occasions, did not raise his foot off the ground in the first
ten seconds of the test, was unable to count after several
prompts to begin counting, was unable to maintain his hands down
at his side, and did not follow instructions.7
6
The objection was based on the fact that even though the district
court initially determined that there was insufficient foundation to allow
Officer Billins to testify regarding the result of the FSTs, the State
essentially “back-doored” testimony as to whether Tsujimura passed or failed
the walk-and-turn test because Officer Billins was asked about the clues he
was looking for and the instructions he gave based on his training.
Tsujimura interjected a similar objection to Officer Billins’ testimony as to
the results of the one-leg stand. In light of our disposition in this case,
we do not address these foundation challenges that were raised on appeal and
certiorari.
7
Officer Billins testified that when he had been around persons
who had consumed alcohol, he had observed that they tend to have “bloodshot
eyes or they have difficulty walking or standing still in an upright manner,”
they “sometimes pass out,” “have emotional issues,” “go from being happy to
sad,” stumble around, or have “difficulty grabbing things or even walking.”
(continued . . .)
6
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Officer Billins also testified that, having been
apprised of Tsujimura’s injury to his left knee, he suggested,
during the one-leg stand, that “if [Tsujimura] were to choose a
leg, it may be wise to lift his injured leg because he would
have to put weight on the leg that he’s standing on.” Officer
Billins added that Tsujimura raised his left leg during the one-
leg stand.
On cross-examination, Officer Billins stated that he
followed Tsujimura’s vehicle for about two miles before
Tsujimura finally pulled over. The officer testified that
Tsujimura was not changing lanes, was not going over the speed
limit, was not slowing down or speeding up, did not follow
vehicles too closely, and did not make any inconsistent signals.
Officer Billins related that it took Tsujimura only eight
seconds to pull over from the time he turned on his sirens and
lights. Officer Billins noted that out of the 24 National
Highway Traffic Safety Administration (NHTSA) visual detection
clues, Tsujimura exhibited only one--trouble maintaining lane
position.8 Officer Billins testified that Tsujimura did not
(continued . . . )
On cross-examination, Officer Billins indicated that he did not see Tsujimura
lose consciousness, exhibit emotional issues, go from being happy to being
sad, laugh or cry inappropriately, stumble, grab something to keep himself
upright, or walk into anything.
8 Officer Billins testified on redirect examination that the
factors listed in the NHTSA manual are not dispositive of intoxication and
(continued . . .)
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repeat questions or comments, lean on the vehicle, or provide
incorrect information or change his answers. Officer Billins
indicated that red, watery eyes could be caused by a number of
factors other than alcohol impairment, such as fatigue and long
days at work. Officer Billins also expressed that, based on his
training and experience and the NHTSA, odor of alcohol is a poor
indicator of a person’s level of impairment and has no bearing
on the amount and nature of the alcohol that the person
consumed.
Tsujimura’s counsel asked Officer Billins about his
testimony on direct examination regarding Tsujimura’s injury.
According to Officer Billins, Tsujimura stated that he had an
injury on the left leg or left knee and a torn ACL on an
unspecified leg. Officer Billins said that, when he recommended
that Tsujimura raise his left leg for the one-leg stand, he was
not aware “whether raising a leg puts more physical strain on
your ACL than keeping it planted” and “whether [Tsujimura’s]
knee injury or ACL injury affected his ability to perform the”
one-leg stand and walk-and-turn.
On redirect examination, the prosecutor asked Officer
Billins whether Tsujimura, while exiting his car, explained that
he could not get out of the car due to an ACL injury. The
(continued . . . )
that it is necessary to evaluate their totality and the circumstances under
which they arose instead of relying on one single clue.
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relevant exchange between the prosecutor and Officer Billins was
as follows:
[Prosecutor:] . . . You testified that when the defendant
left the car he didn’t have any difficulty exiting the car.
[Officer Billins:] Yes.
[Prosecutor:] So did the defendant at that time explain to
you he couldn’t get out of the car because of an ACL
injury?
[Defense Counsel:] Objection, Your Honor. It comments on
the defendant’s right to remain silent.
[The Court:] It’s overruled. Let’s see if the statement
comes out.
[Prosecutor:] Do you recall if the defendant indicated to
you he would have difficulty exiting the car because of his
previous leg injury?
[Officer Billins:] No statements were made.
[Defense Counsel:] And Your Honor, that’s exactly what I’m
talking about. The Supreme Court -- there’s Supreme Court
case law that says that the prosecutor cannot comment or
elicit testimony that comments on the defendant’s right to
remain silent. He’s under no obligation to speak or say
anything to Officer Billins.
[The Court:] That’s true here in court.
[Defense Counsel:] Correct.
[The Court:] There’s no motion to suppress his statements
at the scene of the stop.
[Defense Counsel:] No. I understand that. But during the
course of the trial, [the prosecutor’s] trying to imply
that he had some obligation to tell Officer Billins
something . . .
[The Court:] I understand what you’re saying. Your
objection’s overruled.
(Emphases added.)
Tsujimura’s objection to the prosecutor’s line of
questioning was thus based on the ground that the question
sought and elicited a response that commented on Tsujimura’s
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right to remain silent. The district court overruled the
objection on the grounds that the prosecutor’s question was not
implying that Tsujimura was under obligation to speak in court,
which the district court concluded was inappropriate; rather,
the prosecutor’s question was implying that Tsujimura had some
obligation to say something at the time of the stop, which the
district court intimated was permissible.
Following Officer Billins’ testimony, the State rested
and Tsujimura moved for a judgment of acquittal, arguing that
the State failed to present evidence as to the kind of alcohol
that allegedly impaired his faculties. The district court
denied the acquittal motion, and Tsujimura rested without
presenting any evidence.
In ruling on the case, the district court found that
the car that Tsujimura was driving was straddling the line
separating two lanes on the Moanalua freeway; that the eight
seconds it took for Tsujimura to pull over was still a fair
amount of time given that the police lights were activated; that
Tsujimura’s speech was slurred, his face was flushed and red,
and his eyes were red and watery; and that when Tsujimura
“alighted from the car, he did not indicate any difficulty
walking.” The district court also made findings consistent with
Officer Billins’ testimony as to Tsujimura’s performance on the
FSTs.
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Based on the totality of the circumstances, including
the manner in which Tsujimura was driving and Tsujimura’s
physical condition that Officer Billins observed, the district
court concluded that the State proved beyond a reasonable doubt
all the elements of the OVUII offense charged under HRS § 291E-
61(a)(1).9
II. ICA PROCEEDINGS
Tsujimura filed a notice of appeal to the Intermediate
Court of Appeals (ICA), challenging the following rulings of the
district court: (1) denial of his motion to dismiss the OVUII
charge for failure to define the term “alcohol” in the
complaint; (2) admission of Officer Billins’ testimony regarding
Tsujimura’s failure to state that his injury would prevent him
from getting out of his car; (3) denial of his motion for
judgment of acquittal on the grounds that there was insufficient
evidence that he had consumed “alcohol”; and (4) denial of his
motion for judgment of acquittal on the grounds that there was
insufficient evidence to establish that he was under the
influence of alcohol in an amount sufficient to impair his
9
The district court sentenced Tsujimura to a 14-hour minimum
substance abuse rehabilitation program, a substance abuse assessment, and
mandatory fees including “$100 DUI Drivers Education Fee, $7 Regular Drivers
Education Fee, $30 Crime Victim Compensation Fee, $25 Neurotrauma Fund
Surcharge, $250 Drug Demand Reduction Assessment, $150 of which will be
suspended on the condition that Mr. Tsujimura complete all the other
requirements of his sentence.” Tsujimura was also fined $300, and his
license was revoked for one year.
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normal mental faculties or ability to care for himself and guard
against casualty.
The ICA in its published opinion determined that the
statutory definition of “alcohol” under HRS § 291E-1 (2007 &
Supp. 2012) is not limited to alcohol derived from distillation
but that, based on the statute’s plain meaning, it “specifically
includes ethyl alcohol, which is ‘the intoxicating agent in
beer, wine and other fermented and distilled liquors.’” State
v. Tsujimura, 137 Hawaii 117, 120, 366 P.3d 173, 176 (App. 2016)
(quoting Ethyl Alcohol, Webster Dictionary, http://www.webster-
dictionary.net/definition/ethyl alcohol (last visited May 23,
2017)).10 The ICA stated that, if the meaning of “alcohol”
excludes beer and wine and other alcoholic products not derived
from distillation, the purpose of the legislature in enacting
the OVUII statutes would be undermined in that “drivers who
became drunk as the result of consuming beer or wine would not
be subject to prosecution.” Id. at 120-21, 366 P.3d at 176-77.
The ICA noted that Tsujimura’s statutory construction would
frustrate “the entire administrative and criminal statutory
scheme set forth in HRS Chapter 291E.” Id. The ICA also
concluded that the statutory definition of “alcohol” is
consistent with its ordinarily understood meaning and that
10
In 2016, the legislature amended the definition of “alcohol” in
HRS § 291E-1 to mean “ethanol or any substance containing ethanol.” 2016
Haw. Sess. Laws Act 231, § 59.
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“there was no need for the State to define the term ‘alcohol’ in
the OVUII charge in order to give Tsujimura fair notice of the
charge against him.” Id. at 121, 366 P.3d at 177. Accordingly,
the ICA held that the complaint charging Tsujimura with OVUII
was not deficient for failing to set forth the statutory
definition of “alcohol.” Id.
As to Tsujimura’s argument that his right to remain
silent was violated, the ICA observed that Hawaii has not
resolved whether there exists a constitutional right to
prearrest silence. Id. at 123, 366 P.3d at 179. However, the
ICA determined that it was not necessary to reach this issue
because Officer Billins’ testimony did not constitute “an
impermissible comment on Tsujimura’s assertion of his right to
remain silent.” Id. In evaluating Tsujimura’s contention, the
ICA applied the test set forth in State v. Padilla, 57 Haw. 150,
158 P.2d 357 (1976), and considered whether the prosecutor’s
question and Officer Billins’ answer to it were manifestly
intended or of such character that the district court would
naturally and necessarily take it to be a comment on Tsujimura’s
exercise of his right to remain silent. Tsujimura, 137 Hawaii
at 123, 366 P.3d at 179. The ICA reasoned that the question--
“Do you recall if the defendant indicated to you he would have
difficulty exiting the car because of his previous leg injury?”-
-and Officer Billins’ answer that “[n]o statements were made”
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“were directed at whether there was any indication that
Tsujimura’s prior knee injury affected his ability to perform
the field sobriety tests.” Id. at 124, 366 P.3d at 180.
According to the ICA, the prosecutor’s question and Officer
Billins’ answer were not an “attempt to imply that an innocent
person in Tsujimura’s position would have spoken.” Id.
Finally, the ICA determined that there was sufficient
evidence to establish that Tsujimura consumed “alcohol” because
Tsujimura was under the influence of ethyl alcohol, which is the
intoxicating agent in beer, wine, and other fermented and
distilled liquors and the active principle in intoxicating
drinks. Id. at 122, 366 P.3d at 178. Therefore, viewing the
evidence in the light most favorable to the State, the ICA
concluded that the evidence adduced by the State at trial
constituted sufficient evidence to support Tsujimura’s
conviction. Id. at 124, 366 P.3d at 180.
III. STANDARDS OF REVIEW
Statutory interpretation is reviewed de novo. State
v. Wang, 91 Hawaii 140, 141, 981 P.2d 230, 231 (1999). “At all
times, the question of whether a charge is sufficient is a
matter of constitutional law, and our review of such matters is
de novo.” Schwartz v. State, 136 Hawaii 258, 286, 361 P.3d
1161, 1189 (2015). As to evidentiary rulings, the standard of
review is “abuse of discretion, unless application of the rule
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admits only one correct result, in which case, review is under a
right/wrong standard.” State v. Rabellizsa, 79 Hawaii 347, 349,
903 P.2d 43, 45 (1995). Questions of constitutional law are
reviewed de novo, and this court exercises its independent
judgment in considering such questions. State v. Mattson, 122
Hawaii 312, 321, 226 P.3d 482, 491 (2010). Legal sufficiency of
the evidence to support a conviction is a question of law
reviewed by this court de novo, the specific test being
“whether, ‘viewing the evidence in the light most favorable to
the State, there is substantial evidence to support the
conclusion of the trier of fact.’” State v. Hirayasu, 71 Haw.
587, 589, 801 P.2d 25, 26 (1990) (quoting State v. Hernandez, 61
Haw. 475, 477, 605 P.2d 75, 77 (1980)).
IV. DISCUSSION
A. Meaning of Alcohol and Sufficiency of the Complaint
Tsujimura contends that the statutory definition of
“alcohol” in HRS § 291E-1 (2007 & Supp. 2012) is limited to
alcohol derived from distillation. Thus, argues Tsujimura, the
definition of “alcohol” should have been included in the
complaint.
1. The Meaning of Alcohol
Statutory construction commences “with an examination
of the plain language in order to determine and give effect to
the legislative intent and purpose underlying the statute.”
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State v. Pacquing, 139 Hawaii 302, 310, 389 P.3d 897, 905
(2016). “The legislature is presumed not to intend an absurd
result, and legislation will be construed to avoid, if possible,
inconsistency, contradiction[,] and illogicality.” State v.
Arceo, 84 Hawaii 1, 19, 928 P. 2d 843, 861 (1996) (quoting
State v. Malufao, 80 Hawaii 126, 137, 906 P.2d 612, 623
(1995)). Invariably, this court’s foremost obligation in
statutory interpretation is to effectuate the statute’s purpose.
State v. Ganal, 81 Hawaii 358, 371, 917 P.2d 370, 383 (1996).
HRS § 291E-1 defines alcohol as
the product of distillation of any fermented liquid,
regardless of whether rectified, whatever may be the origin
thereof, and includes ethyl alcohol, lower aliphatic
alcohol, and phenol as well as synthetic ethyl alcohol, but
not denatured or other alcohol that is considered not
potable under the customs laws of the United States.
(Emphasis added.) Contrary to Tsujimura’s contention, the
statutory meaning of “alcohol” is not circumscribed to alcohol
derived from distillation. Tsujimura’s proffered interpretation
overlooks the conjunctive clause “and includes” in the statutory
definition. Previous cases counsel that “‘including’ means
either ‘an enlargement and has the meaning of and or in addition
to, or merely specifies a particular thing already included
within the general words theretofore used.’” State v. Guyton,
135 Hawaii 372, 379 n.14, 351 P.3d 1138, 1145 n.14 (2015)
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(quoting Hawaiian Ass’n of Seventh–Day Adventists v. Wong, 130
Hawaii 36, 46, 305 P.3d 452, 462 (2013)).
In this case, because “and” precedes “includes,” the
phrase “and includes” means “in addition to” instead of merely
specifying particular examples of “product of distillation.”
Viewed another way, the second definitional clause following
“and includes” is separate and distinct from the first
definitional clause ending with the word “thereof.”
Accordingly, “alcohol” means “the product of distillation of any
fermented liquid, regardless of whether rectified, whatever may
be the origin thereof.” And “alcohol” also “includes ethyl
alcohol, lower aliphatic alcohol, and phenol as well as
synthetic ethyl alcohol” regardless of whether they are products
of distillation.
To be sure, in cases where a general definitional
clause is followed by a list prefaced by the word “including,”
this court has held that the list provides examples that
particularize or elaborate upon the general definitional clause.
Pacquing, 139 Hawaii at 319—20, 389 P.3d at 914—15. In such
cases, the general definitional clause is treated as providing
the outer limits of the meaning of the defined term, and the
list that follows “including” is regarded as non-exhaustive
examples of the general definitional clause. Lealaimatafao v.
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Woodward-Clyde Consultants, 75 Hawaii 544, 556, 867 P.2d 220,
226 (1994).
But here, by using the phrase “and includes,” the
legislature clearly disassociated the first definitional clause
from the second definitional clause. “[E]thyl alcohol, lower
aliphatic alcohol, and phenol as well as synthetic ethyl
alcohol” are not illustrative of or circumscribed by the phrase
“the product of distillation,” and instead, they qualify as
“alcohol” within HRS § 291E-1 even if they are not a product of
distillation. Hence, the meaning of “alcohol” is inclusive of
ethyl alcohol, also commonly known as ethanol, which “is the
intoxicating agent in beer, wine, and other fermented and
distilled liquors.”11 Accordingly, the statutory definition of
“alcohol” includes beer, wine, and other fermented liquors
because these substances contain ethanol.12
This interpretation is consistent with the purpose of
the legislature in enacting the OVUII statutes: to promote
public safety by making it a crime to operate a vehicle while
impaired by an intoxicant. See, e.g., H. Stand. Comm. Rep. No.
788-82, in 1982 House Journal, at 1261 (noting that the 1982
amendments sought to balance and weigh “the need of protecting
11
Ethyl Alcohol, Webster Dictionary, http://www.webster-
dictionary.org/definition/ethyl%20alcohol (last visited May 23, 2017).
12
Id.
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our citizens against the danger of drunken drivers and, at the
same time, insuring that the measures adopted to curb drunken
driving do not discriminate against any class of our society”).
Tsujimura’s interpretation, which would exclude from OVUII
prosecution persons impaired by alcohol not derived from
distillation, would lead to a result that undermines the
legislative purpose. This illogical result is avoided by
effectuating the plain language of the statutory definition of
“alcohol,” which includes ethyl alcohol regardless of origin or
derivation. Pac. Ins. v. Or. Auto Ins., 53 Haw. 208, 211, 490
P.2d 899, 901 (1971). Thus, the ICA reached the correct result
in holding that “alcohol” is not limited to alcohol produced
through distillation; however, this result is chiefly dictated
by the plain language of HRS § 291E-1.
2. Sufficiency of the Complaint
Tsujimura argues that the complaint should be
dismissed as insufficient because the State failed to include
the statutory definition of “alcohol,” depriving him of his
state constitutional right to be apprised of what he must defend
against. “Article 1, section 14 of the Hawaii Constitution
. . . require[s] that ‘[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be informed of the nature
and cause of the accusation[.]’” State v. Wells, 78 Hawaii 373,
379, 894 P.2d 70, 76 (1995) (alterations in original). It is
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settled law that an “accusation must sufficiently allege all of
the essential elements of the offense charged,” a requirement
that “obtains whether an accusation is in the nature of an oral
charge, information, indictment, or complaint.” State v.
Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977).
This court has noted that “[w]here the statute sets
forth with reasonable clarity all essential elements of the
crime intended to be punished, and fully defines the offense in
unmistakable terms readily comprehensible to persons of common
understanding, a charge drawn in the language of the statute is
sufficient.” Id. at 282, 567 P.2d at 1245; accord State v.
Wheeler, 121 Hawaii 383, 393, 219 P.3d 1170, 1180 (2009). But
“where the definition of an offense . . . includes generic
terms, it is not sufficient that the indictment shall charge the
offense in the same generic terms as in the definition; . . . it
must state the species . . . [and] descend to particulars.”
State v. Israel, 78 Hawaii 66, 73, 890 P.2d 303, 310 (1995)
(quoting Russell v. United States, 369 U.S. 749, 765 (1962));
accord Wheeler, 121 Hawaii at 393, 219 P.3d at 1180.
In this case, Tsujimura was charged by complaint with
being “under the influence of alcohol in an amount sufficient to
impair his normal mental faculties or ability to care for
himself and guard against casualty.” As discussed, the
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statutory meaning of alcohol is not limited to alcohol produced
by the process of distillation. The commonly understood meaning
of “alcohol” is that it is “a clear liquid that has a strong
smell, that is used in some medicines and other products, and
that is the substance in liquors (such as beer, wine, or
whiskey) that can make a person drunk.”13 The statutory meaning
of “alcohol” includes ethyl alcohol, which is the intoxicating
agent in beer, wine, and other fermented and distilled liquors.
Thus, “alcohol,” as defined by statute, encompasses substances
and beverages commonly understood to constitute “alcohol” in lay
terms. Accordingly, it was not necessary to include the
statutory definition of “alcohol” in the complaint against
Tsujimura because the statutory definition “comport[s] with
[the] commonly understood definition” of alcohol. Wheeler, 121
Hawaii at 394, 219 P.3d at 1181. Thus, even without the
statutory definition of “alcohol,” the complaint “fully defines
the offense in unmistakable terms,” is “readily comprehensible
to persons of common understanding,” and is, therefore,
sufficient. Jendrusch, 58 Haw. at 282, 567 P.2d at 1245.
13
Alcohol, Merriam-Webster, http://www.merriam-
webster.com/dictionary/alcohol (emphasis added) (last visited May 23, 2017).
Similarly, Oxford Dictionary defines “alcohol” as “[a] colorless volatile
flammable liquid that is produced by the natural fermentation of sugars and
is the intoxicating constituent of wine, beer, spirits, and other drinks, and
is also used as an industrial solvent and as fuel.” Alcohol, English Oxford
Living Dictionaries, http://www.oxforddictionaries.com/us/definition/
american_english/alcohol (last visited May 23, 2017).
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B. Prearrest Right to Remain Silent
During the State’s case-in-chief in the trial in this
case, the prosecutor asked Officer Billins on redirect
examination, “Do you recall if the defendant indicated to you he
would have difficulty exiting the car because of his previous
leg injury?” Over defense counsel’s repeated objection, the
district court permitted Officer Billins to answer the
prosecutor’s question. The officer responded, “No statements
were made.” Tsujimura argues that the information elicited by
the prosecutor--that he failed to tell Officer Billins that he
would have difficulty exiting the car because of his previous
leg injury--improperly commented on his right to remain silent.
In reviewing Tsujimura’s contention, it is important
to identify the timeframe that the prosecutor’s question focused
on when he asked Officer Billins about what Tsujimura failed to
say: it was before Tsujimura was formally arrested or given
Miranda warnings. This court has not yet spoken on whether the
right to remain silent, which is an integral part of the
privilege against compelled self-incrimination, attaches
prearrest and, if so, whether and within what bounds such
silence may be used against a criminal defendant at trial. See
State v. Mainaaupo, 117 Hawaii 235, 252 n.9, 178 P.3d 1, 18 n.9
(2008) (reasoning that “the [deputy prosecuting attorney]’s
comments could also be interpreted to refer to [defendant]’s
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pre-arrest silence” but not addressing that issue because it was
not raised, and also noting that “courts are divided on whether
the government may comment on a defendant’s pre-arrest
silence”).
1. Prearrest Right to Remain Silent Under Article I, Section 10
of the Hawaii Constitution
The United States Supreme Court has not definitively
resolved under the federal constitution the issue of whether the
privilege against compelled self-incrimination attaches before
arrest. Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980) (“Our
decision today does not consider whether or under what
circumstances prearrest silence may be protected by the Fifth
Amendment.”) The Supreme Court was not required to resolve this
issue because its precedents “clearly permit[] impeachment even
if the prearrest silence were held to be an invocation of the
Fifth Amendment right to remain silent.”14 Id.; Portuondo v.
14
The propriety of utilizing a defendant’s silence in criminal
trials has been explored by the Supreme Court in several cases. In Doyle v.
Ohio, 426 U.S. 610 (1976), the Court held that the prosecution may not
impeach a defendant by using his post-arrest, post-Miranda silence, reasoning
that a defendant, after being apprised of his or her Miranda right to remain
silent, cannot thereafter be penalized for exercising that right. Id. at
611. In Jenkins, the Supreme Court “conclude[d] that the Fifth Amendment is
not violated by the use of prearrest silence to impeach a criminal
defendant’s credibility” because, by testifying at his or her own trial, the
defendant “cast[s] aside his cloak of silence” and impeachment is a necessary
concomitant of that decision. 447 U.S. at 238. Two years later, the Supreme
Court decided Fletcher v. Weir, 455 U.S. 603 (1982), a case in which the
defendant, post-arrest, was not given Miranda warnings. “In the absence of
the sort of affirmative assurances embodied in the Miranda warnings,” the
Court held that it is not a violation of “due process of law for a State to
permit cross-examination as to postarrest silence when a defendant chooses to
take the stand” for the purpose of impeaching the defendant. Id. at 607. In
(continued . . .)
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Agard, 529 U.S. 61, 70 (2000) (noting that, under Jenkins, “it
was not clear whether the Fifth Amendment protects prearrest
silence”). But because this court is “the ultimate judicial
tribunal with final, unreviewable authority to interpret and
enforce the Hawaii Constitution, [it is] free to give broader
protection under the Hawaii Constitution than that given by the
federal constitution.” State v. Arceo, 84 Hawaii 1, 28, 928
P.2d 843, 870 (1996) (quoting State v. Wallace, 80 Hawaii 382,
397 n.14, 910 P.2d 695, 710 n.14 (1996)); see, e.g., State v.
Hoey, 77 Hawaii 17, 36, 881 P.2d 504, 523 (1994) (affording
broader protection to suspects during custodial interrogation
under the Hawaii Constitution than that provided by the federal
constitution). Thus, this court may interpret the Hawaii
Constitution to provide broader rights against self-
incrimination than its federal counterpart.
In determining whether the right to remain silent
attaches before arrest, the governing provision of the Hawaii
Constitution is article I, section 10, which provides, “[N]or
shall any person be compelled in any criminal case to be a
(continued . . . )
Salinas v. Texas, 133 S. Ct. 2174 (2013) (plurality), prosecutors used the
defendant’s silence during a pre-custodial interview as substantive evidence
of guilt. Id. at 2178—79. A plurality of the Court concluded that, where
the defendant does not invoke the right to remain silent in a non-coercive,
pre-custodial interview situation, prosecutors could use the defendant’s
prearrest silence as substantive proof of guilt. Id. at 2184.
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witness against oneself.” Haw. Const. art. I, § 10. In
Mainaaupo, this court held that “the right against self-
incrimination attache[s] at least as of the time of [an]
arrest,” regardless of whether Miranda warnings have been given.
117 Hawaii at 252, 178 P.3d at 18. The Mainaaupo court left
open the question of whether the right against self-
incrimination attaches before arrest. See id. at 252 n.9, 178
P.3d at 18 n.9 (noting that whether the right against self-
incrimination applies to prearrest silence was not an issue and
was therefore not addressed).
This court construes the provisions of the Hawaii
Constitution using canons similar to those used in statutory
construction. “[T]he settled rule is that in the construction
of a constitutional provision the words are presumed to be used
in their natural sense unless the context furnishes some ground
to control, qualify, or enlarge them.” Haw. State AFL–CIO v.
Yoshina, 84 Hawaii 374, 376, 935 P.2d 89, 91 (1997) (quoting
Pray v. Judicial Selection Comm’n, 75 Hawaii 333, 342, 861 P.2d
723, 727 (1993)). The plain language of article I, section 10
provides, “[N]or shall any person be compelled to be a witness
against oneself.” Haw. Const. art. I, § 10. Unlike those
provisions of the Hawaii Constitution that explicitly apply only
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to specified categories of individuals,15 article I, section 10
is clear that its guarantees are meant to attach to “any
person.” Cf. United States ex. rel. Savory v. Lane, 832 F.2d
1011, 1017 (7th Cir. 1987) (comparing the language of the Sixth
Amendment, which gives the right to counsel to an “accused,”
with the language of the Fifth Amendment, which states that
“[n]o person shall . . . be compelled in any criminal case to be
a witness against himself”).
Thus, the privilege against compelled self-
incrimination functions to protect “any person” regardless of
whether that person has been arrested or accused. It is
therefore evident from the language of article I, section 10
that the right to remain silent attaches even before arrest is
made.16 Cf. id. (holding that the right to remain silent
attaches even before arrest and reasoning that, based on the
15
See, e.g., Haw. Const. art. I, § 14 (enumerating rights that only
accrue to individuals that have already been “accused” of a crime). We voice
no opinion regarding the timeframe and manner in which the various rights
enumerated in article I, section 14 apply. We simply note the plain-language
difference between article I, section 14 and article I, section 10.
16
See also Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995)
(holding that under Wyoming’s constitution, there is “no rational reason to
limit the protection embracing the citizen’s right to silence to the post-
arrest or post-Miranda situation. The constitutional right to silence exists
at all times--before arrest, at arrest, and after arrest; before a Miranda
warning and after it. The right is self-executing.”); State v. Fencl, 325
N.W.2d 703, 711 (Wis. 1982) (“The Fifth Amendment protects a person from
compelled self-incrimination at all times, not just upon arrest or during a
custodial interrogation.”); see also Coppola v. Powell, 878 F.2d 1562, 1565
(1st Cir. 1989) (holding that the privilege against self-incrimination may be
asserted prearrest); United States v. Burson, 952 F.2d 1196, 1200 (10th Cir.
1991) (accord).
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language of the U.S. Constitution, “unlike the right to
counsel,” the right to remain silent “attaches before the
institution of formal adversary proceedings”).
In confirming the plain-language interpretation of a
constitutional provision, the intent underlying its ratification
is a relevant consideration. See State v. Rodrigues, 63 Haw.
412, 416, 629 P.2d 1111, 1114 (1981). The purpose of the
privilege against self-incrimination is twofold: to protect an
individual “from having to reveal, directly or indirectly, his
knowledge of facts relating him to the offense or from having to
share his thoughts and beliefs with the Government,” Doe v.
United States, 487 U.S. 201, 213 (1988), and to “demand[] that
the government seeking to punish an individual produce the
evidence against him by its own independent labors, rather than
by the cruel, simple expedient of compelling it from his own
mouth,” Miranda v. Arizona, 384 U.S. 436, 460 (1966). Accord
State v. Grahovac, 52 Haw. 527, 532–33, 480 P.2d 148, 152
(1971).
Establishing that the privilege against compelled
self-incrimination attaches to a person even without formal
arrest or the institution of criminal proceedings effectuates
the purpose underlying the privilege, for it places on the
government the onus of producing evidence against individuals
that the government intends to punish and correspondingly frees
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individuals from any obligation to speak. It is also consistent
with the fact that “the right to remain silent derives from the
Constitution and not from the Miranda warnings themselves,”
Mainaaupo, 117 Hawaii at 252, 178 P.3d at 18 (quoting United
States v. Velarde–Gomez, 269 F.3d 1023, 1029 (9th Cir. 2001) (en
banc)); accord Roberts v. United States, 445 U.S. 552, 560
(1980), and that, therefore, the privilege against self-
incrimination exists even without the articulation of Miranda
warnings.17
Given that the right to remain silent attaches
prearrest pursuant to article I, section 10, we hold that the
right clearly attached in this case at least at the point when
Tsujimura was detained as a result of the investigatory stop.18
See State v. Eleneki, 106 Hawaii 177, 180, 102 P.3d 1075, 1078
(2004) (“It is axiomatic that ‘stopping an automobile and
detaining its occupants constitutes a “seizure” within the
17
See State v. Easter, 922 P.2d 1285, 1290—91 (Wash. 1996) (“An
accused’s right to silence derives, not from Miranda, but from the Fifth
Amendment itself. The Fifth Amendment applies before the defendant is in
custody or is the subject of suspicion or investigation.”); Fencl, 325 N.W.2d
at 711 n.10 (“Nor is the Fifth Amendment right against self-incrimination
dependent upon a person’s receipt of the Miranda warning. Miranda did not
create new rights but, rather, held that the constitutional guarantees
already accorded a defendant by the Fifth and Sixth Amendments should be
explained to the defendant during a critical stage of the criminal
proceeding.”).
18
Because this case involves a seizure situation, we express no
opinion as to other prearrest situations in which the right to remain silent
would be triggered. We do not reach that issue because it is not implicated
in this case.
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meaning of the Fourth Amendment to the United States
Constitution and Article I, Section 7 of the Hawaii
Constitution, even though the purpose of the stop is limited and
the resulting detention quite brief.’” (quoting State v. Powell,
61 Haw. 316, 320, 603 P.2d 143, 147 (1979))). Thus, upon
Tsujimura’s seizure, his right to remain silent was invoked, and
this right continued during his detention.
The question then arises as to whether prearrest
silence may be used by the State against a defendant and, if so,
within what bounds. As stated, the Supreme Court has held that
prearrest silence may be used to impeach a defendant. See
Jenkins, 447 U.S. 231; supra note 14. But the Supreme Court has
not yet spoken on whether prearrest silence may be used as
substantive proof of guilt, and circuit courts of appeals are
split over this issue. Several circuits have held that
prearrest silence may not be used as substantive proof of guilt.
See Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989) (by
using defendant’s prearrest silence in the prosecution’s case-
in-chief, defendant’s Fifth Amendment rights were violated);
United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981) (holding
that prearrest silence cannot be used as substantive proof of
guilt in the prosecution’s case-in-chief); Combs v. Coyle, 205
F.3d 269, 283 (6th Cir. 2000) (concluding that the “use of a
defendant’s prearrest silence as substantive evidence of guilt
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violates the Fifth Amendment’s privilege against self-
incrimination”); Lane, 832 F.2d at 1017—18 (holding that the use
of defendant’s prearrest silence as proof of guilt was
unconstitutional); United States v. Burson, 952 F.2d 1196, 1201
(10th Cir. 1991) (admitting prearrest silence as substantive
evidence of guilt is impermissible under the Fifth Amendment).
Other circuits have reached the opposite result, holding that
the use of prearrest silence as substantive proof of guilt is
constitutionally permissible. See United States v. Zanabria, 74
F.3d 590, 593 (5th Cir. 1996) (use of defendant’s prearrest
silence as proof of guilt, under the circumstances, did not
violate the Fifth Amendment); United States v. Oplinger, 150
F.3d 1061, 1066-67 (9th Cir. 1998) (prearrest silence may be
used as evidence of guilt without violating the Fifth
Amendment), overruled on other grounds by United States v.
Contreras, 593 F.3d 1135 (9th Cir. 2010); United States v.
Rivera, 944 F.2d 1563, 1567-68 (11th Cir. 1991) (holding that
the government may comment on defendant’s prearrest silence
because the right against self-incrimination does not attach
until after arrest and Miranda warnings have been given). The
Supreme Court, in Salinas v. Texas, 133 S. Ct. 2174 (2013)
(plurality), left unresolved this split of authority among the
federal circuits and held that, even assuming that prearrest
silence may not be used as substantive evidence of guilt, the
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defendant in that case could not take advantage of that
protection because he failed to expressly invoke the right.19
Numerous state appellate courts have also taken the
position that prearrest silence can be used only to impeach a
defendant and not as proof of guilt in the prosecution’s case-
in-chief. See State v. Reid, 20 A.3d 298, 304 (N.H. 2011) (“A
defendant’s pre-arrest silence may be used to impeach his
credibility, but the use of pre-arrest silence in the State’s
case-in-chief is unconstitutional.”); State v. Brown, 919 A.2d
107, 116—17 (N.J. 2007) (testimony regarding defendant’s
prearrest silence “would have been appropriate as impeachment
evidence if it had been offered in rebuttal” and not in the
prosecution’s case-in-chief); Tortolito v. State, 901 P.2d 387,
390 (Wyo. 1995) (use of prearrest silence to infer guilt is
constitutionally prohibited); State v. Parker, 334 P.3d 806, 821
(Idaho 2014) (same); State v. Easter, 922 P.2d 1285, 1290—92
(Wash. 1996) (same); State v. Rowland, 452 N.W.2d 758, 763 (Neb.
1990) (same); State v. Fencl, 325 N.W.2d 703, 711 (Wis. 1982)
(same); State v. Taylor, 780 S.E.2d 222, 224 (N.C. Ct. App.
19
Salinas, 133 S.Ct. at 2179 (“We granted certiorari to resolve a
division of authority in the lower courts over whether the prosecution may
use a defendant’s assertion of the privilege against self-incrimination
during a noncustodial police interview as part of its case in chief. But
because petitioner did not invoke the privilege during his interview, we find
it unnecessary to reach that question.” (citations omitted)); Rinat Kitai-
Sangero & Yuval Merin, Probing into Salinas’s Silence: Back to the “Accused
Speaks” Model?, 15 Nev. L.J. 77, 77—78 (2014) (stating that the plurality
opinion in Salinas avoided ruling on whether prearrest silence may be used as
substantive proof of guilt “and instead decided the case on a technicality”).
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2015) (same); State v. Palmer, 860 P.2d 339, 349—50 (Utah Ct.
App. 1993) (same).
We agree with the federal circuit courts of appeals
and the several States that have held as unconstitutional the
use of prearrest silence as substantive evidence of guilt.20 To
hold otherwise would “create an incentive for arresting officers
to delay interrogation in order to create an intervening
‘silence’ that would then be used against the defendant.”
Mainaaupo, 117 Hawaii at 252, 178 P.3d at 18 (quoting United
States v. Moore, 104 F.3d 377, 386 (D.C. Cir. 1997)); accord
Easter, 922 P.2d at 1290—91; Tortolito, 901 P.2d at 390
(permitting the use of prearrest silence as proof of guilt leads
to a system where the government “can time the citizen’s arrest
to occur after the citizen stands mute in the face of the
accusation”). Indeed, allowing prearrest silence to be used as
proof of guilt “would also encourage the authorities to refrain
from issuing Miranda warnings as long as possible in an attempt
to generate either inferential evidence of guilt from silence or
20
This court need not reach the issue of whether, under the Hawaii
Constitution, a defendant’s prearrest silence can be used for impeachment
purposes in cases where the defendant chooses to testify because, in this
case, Tsujimura’s prearrest silence was used as substantive evidence of
guilt. Further, Tsujimura did not testify, so there was never any basis to
impeach his credibility by using his prearrest silence. See Brown, 919 A.2d
at 116—17 (because defendant did not testify, the prosecutor’s use of
defendant’s silence could not have been for impeachment); State v. Harrison,
721 S.E.2d 371, 379 (N.C. Ct. App. 2012) (police officer’s statement as to
defendant’s prearrest silence could not have been used for impeachment where
the defendant testified after the police officer).
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an admission prior to custodial interrogation.” Palmer, 860
P.2d at 349—50; accord Easter, 922 P.2d at 1290.
Proscribing the use of prearrest silence that occurs
at least as of the time that a person has been detained is also
consistent with the well-established tenet that a person being
questioned by a law enforcement officer during an investigatory
stop “is not obliged to respond.” Berkemer v. McCarty, 468 U.S.
420, 439 (1984). If the State were authorized to use a person’s
silence during an investigatory stop as substantive evidence of
guilt, it would effectively punish a person for exercising a
legal right, a result that is constitutionally unacceptable.
Cf. State v. Wakisaka, 102 Hawaii 504, 514–15, 78 P.3d 317, 327–
28 (2003) (“[N]o ‘penalty’ may ever be imposed on someone who
exercises his core Fifth Amendment right not to be a ‘witness’
against himself in a ‘criminal case.’” (quoting Chavez v.
Martinez, 538 U.S. 760, 768—760 (2003))); Griffin v. California,
380 U.S. 609, 613–14 (1965) (denouncing the practice of
commenting on a defendant’s silence as “a penalty imposed by
courts for exercising a constitutional privilege” in that “[i]t
“cuts down on the privilege by making its assertion costly”).
Finally, we emphasize that the silence used against
Tsujimura was not made in response to a question posed by
Officer Billins. The prosecutor’s question was whether
Tsujimura told Officer Billins that his injuries would give him
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a difficult time exiting his car; that is, the prosecutor was
asking what Tsujimura failed to say even if the information was
not prompted or sought from him by Officer Billins.21
In light of these circumstances, permitting silence to
serve as an implication of guilt would mean that the State would
always be able to use as substantive proof of guilt prearrest
silence not made in response to a question by a police officer.
The prosecutor need only identify a point in time during the
defendant’s interaction with the police officer when no question
was posed and no verbal exchange was had (and, therefore, the
defendant was expectedly silent) and use that silence as
evidence to infer the defendant’s guilt. This would engender a
result where, in any encounter between a law enforcement officer
and a citizen, the State would be able to adduce evidence of
21
Under the facts of this case, where there was no verbal exchange
between the police officer and the defendant, there is no requirement that
the defendant invoke the right to remain silent because, at that particular
juncture, there was no opportunity to do so.
We further reaffirm that, where the prearrest silence occurs in
the context of a person’s refusal to answer questions, there is no “express
invocation” requirement in order to trigger the right to remain silent under
the Hawaii Constitution; we thus reject the holding of the plurality opinion
in Salinas, which requires the defendant to expressly invoke the right to
silence by “say[ing] that [he or she] was not answering the officer’s
question on Fifth Amendment grounds” or something similarly phrased.
Salinas, 133 S. Ct. at 2180. Hawaii case law is clear that the
constitutional right against self-incrimination under the Hawaii Constitution
is invoked when a person “either remains silent or expresses ‘his desire to
deal with police interrogators only through his counsel.’” State v. Luton,
83 Hawaii. 443, 453, 927 P.2d 844, 854 (1996) (emphasis added) (quoting State
v. Mailo, 69 Haw. 51, 731 P.2d 1264 (1987)). Thus, under the Hawaii
Constitution, the mere fact that a person remained silent in the face of
police questioning is enough to invoke the right to remain silent, and
“express invocation” is not necessary.
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prearrest silence in myriad ways (e.g., When she was handing you
her driver’s license and registration, did she say anything
about her injuries?, While she was opening the glove box, did
she say anything about her injuries?, While she was outside the
car, did she say anything?, etc.).
This acutely prejudicial effect is magnified for non-
native English language speakers, youth, and other individuals
detained at a traffic stop who may be reluctant to speak in the
presence of law enforcement officers due to age, gender, or
linguistic, cultural, or other reasons. The burden to explain
at trial their prearrest silence would fall upon these
defendants whenever the State uses their silence to imply their
guilt, compromising their constitutional right to choose not to
testify and raising questions of fundamental fairness.
Accordingly, for the reasons stated, the State may not
use as substantive proof of guilt a defendant’s prearrest
silence that occurs at least as of the time of detention, for
doing so would violate the right against compelled self-
incrimination under article I, section 10 of the Hawaii
Constitution.
2. The Constitutional Prohibition on Prosecutorial Comment on
One’s Exercise of the Right to Remain Silent
In this case, the information about Tsujimura’s
prearrest silence was introduced at trial through the
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prosecutor’s redirect examination of Officer Billins, who
testified that Tsujimura did not say that his injury would give
him difficulty exiting his car. A concomitant of the right to
remain silent is the prohibition on the prosecution from
commenting on a person’s exercise of that right. State v.
Rodrigues, 113 Hawaii 41, 49, 147 P.3d 825, 833 (2006) (“As a
rule, the prosecution may not comment on a defendant’s failure
to testify.” (quoting State v. Wakisaka, 102 Hawaii 504, 514–15,
78 P.3d 317, 327–28 (2003))). A prosecutor may not imply guilt
from a defendant’s exercise of the right to remain silent, for
doing so would dilute the right, undermine the values that the
right protects, and penalize the defendant for exercising a
constitutional right. See State v. Melear, 63 Haw. 488, 496,
630 P.2d 619, 626 (1981) (noting that a prosecutor may not
comment on a defendant’s silence in a manner that suggests such
silence as evidence of guilt).
In evaluating the propriety of a prosecutor’s comment
in certain trial situations, the test that this court has
“applied is whether the language used was ‘manifestly intended
or was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the
accused to testify.’” State v. Padilla, 57 Haw. 150, 158, 552
P.2d 357, 362 (1976) (quoting United States v. Wright, 309 F.2d
735, 738 (7th Cir. 1962)), overruled on other grounds by State
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v. Cabagbag, 127 Hawaii 302, 277 P.3d 1027 (2012). The Padilla
test was designed and has been most often used in cases where
the prosecutor makes comments, after the close of evidence, on
the defendant’s failure to testify. See, e.g., Melear, 63 Haw.
at 496, 630 P.2d at 626 (closing argument); Wakisaka, 102 Hawaii
at 515, 78 P.3d at 328 (rebuttal argument); State v. Valdivia,
95 Hawaii 465, 481, 24 P.3d 661, 677 (2001) (closing and
rebuttal arguments).22 Approximately ten years ago, this court
avowed application of the Padilla test in a case involving a
question-and-answer exchange between a prosecutor and a
detective during the State’s case-in-chief. In Rodrigues, the
prosecutor asked the detective what the defendant’s response was
to the detective’s request to tape-record their conversation.
113 Hawaii at 46, 147 P.3d at 830. The detective answered, “As
I recall, he did not wish to be tape-recorded.” Id. The
defendant later challenged the information elicited, contending
that his refusal to be tape-recorded was used as a negative
22
The origin of the Padilla test is illuminating in this regard.
It was originally adopted by this court from United States v. Wright, a
Seventh Circuit case involving a challenge to a portion of the prosecutor’s
closing argument. 309 F.2d at 738—739. Wright borrowed the Padilla
formulation from Knowles v. United States, which also involved a challenge to
the prosecutor’s closing argument. 224 F.2d 168, 170 (10th Cir. 1955).
Knowles, in turn, adopted the Padilla test from Morrison v. United States, an
Eighth Circuit case that dealt with the propriety of the court’s jury
instructions. 6 F.2d 809, 811 (8th Cir. 1925). It is thus apparent that the
Padilla test was originally fashioned to cover situations in which the
defendant seeks to challenge the conduct of the prosecutor or the court that
occurs after the close of evidence, not instances in which the challenge
relates to information elicited by a prosecutor from a witness during the
testimony phase of the trial.
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inference of his credibility and, thus, improperly commented on
his right to remain silent. Id. at 49, 147 P.3d at 833.
In rejecting the defendant’s challenge, this court
focused on the purpose of the prosecution in adducing
information about the defendant’s refusal to be tape-recorded
and the fact that the information did not suggest any inference
of guilt. The court explained “that the question . . . posed,
and the information elicited, [w]as part of the prosecution’s
effort to maximize the reliability of [the detective’s]
recollections and to explain why the detective could only rely
on his notes and not an audiotape of the interview.” Id.
Further, the court reasoned that the prosecutor’s question was
“part of a line of inquiry designed to establish the detective’s
custom and practice regarding accurately transcribing . . .
statements” and “was unaccompanied by any implication of guilt
with respect to [the defendant]’s unwillingness to be
audiotaped.” Id. at 49–50, 147 P.3d at 833–34. Accordingly,
the court held that the information elicited from the detective
during the State’s case-in-chief was not an improper comment on
the defendant’s right to remain silent. Id. at 50, 147 P.3d at
834.
We note that the plain language of Padilla--“comment
on failure to testify”--is not readily applicable to cases
involving a question-and-answer exchange between a prosecutor
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and a witness that leads to evidence concerning the defendant’s
pretrial silence. Padilla’s focus is on a defendant’s “failure
to testify” and not on a defendant’s pretrial exercise of the
right to remain silent.23 In addition, although Rodrigues
appears to have made the Padilla framework applicable to cases
with facts generally similar to this case, Rodrigues actually
adjusted and particularized the Padilla framework to make it
more suitable for application in situations where the challenged
“comment” is made during a question-and-answer exchange between
a prosecutor and a witness. It is evident from the court’s line
of reasoning in Rodrigues that the core of the analysis is
predicated upon the prosecution’s purpose in eliciting the
contested evidence or on the character of the evidence. See id.
at 49–50, 147 P.3d at 833–34 (reasoning that the purpose of the
prosecution’s question was not to imply guilt and that the
information elicited “was unaccompanied by any implication of
guilt”).
We now clarify the Rodrigues test: In cases where the
prosecution elicits from a witness information regarding the
defendant’s prearrest silence, the test is whether the
23
The exchange between the prosecutor and the witness commonly
transpires during the State’s case-in-chief; thus, the prosecutor under such
circumstances would not have the opportunity to comment on the defendant’s
“failure to testify” because the defendant’s presentation of his or her case
is yet to commence such that it is still uncertain whether the defendant
would choose to testify. See Hawaii Rules of Penal Procedure Rule 24.1(a)
(2000) (providing that the defendant’s case typically commences at the close
of the State’s case-in-chief unless the court orders otherwise).
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prosecutor intended for the information elicited to imply the
defendant’s guilt or whether the character of the information
suggests to the factfinder that the defendant’s prearrest
silence may be considered as inferential evidence of the
defendant’s guilt. See also Ouska v. Cahill-Masching, 246 F.3d
1036, 1049 (7th Cir. 2001) (concluding that the prosecutor’s
questions regarding the defendant’s prearrest, pre-Miranda
silence were improper because they were used to infer the
defendant’s guilt); Tortolito v. State, 901 P.2d 387, 391 (Wyo.
1995) (determining that the prosecutor’s questions to the
officer regarding the defendant’s prearrest silence was
impermissible and that “[a] comment upon an accused’s silence
occurs when used to the state’s advantage either as substantive
evidence of guilt or to suggest to the jury that the silence was
an admission of guilt”); State v. Easter, 922 P.2d 1285, 1289
(Wash. 1996) (noting that “the State may not elicit comments
from witnesses or make closing arguments relating to a
defendant’s silence to infer guilt from such silence”); State v.
Leach, 807 N.E.2d 335, 339 (Ohio 2004) (testimony regarding the
defendant’s prearrest silence was improperly admitted because it
“was clearly meant to allow the jury to infer [the defendant]’s
guilt”); Commonwealth v. Collett, 455 N.E.2d 1006, 1008 (Mass.
App. Ct. 1983) (in evaluating whether testimony regarding the
defendant’s prearrest silence was properly admitted, the court
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reasoned that the prosecutor “did not ask the jury to infer an
admission or consciousness of guilt from the defendant’s
silence”); State v. Terry, 328 P.3d 932, 938 (Wash. Ct. App.
2014) (explaining that an indirect comment on the defendant’s
prearrest silence, adduced by a question at trial, is improper
if it implies the defendant’s guilt).
3. The Information Elicited by the Prosecutor Violated
Tsujimura’s Right to Remain Silent
As stated, the information elicited by the prosecutor
from Officer Billins during the State’s case-in-chief is the
fact that Tsujimura did not say anything about his injury as he
was exiting his car. The ICA concluded that the information
elicited by the prosecutor was not a comment on the right to
remain silent because the prosecutor’s question and “Officer
Billins’ answer were directed at whether there was any
indication that Tsujimura’s prior knee injury affected his
ability to perform the field sobriety tests.” State v.
Tsujimura, 137 Hawaii 117, 124, 366 P.3d 173, 180 (App. 2016).
However, the fact that Tsujimura’s prearrest silence was used to
prove that his performance of the FSTs was not affected by his
injury is exactly the reason why the information elicited was an
impermissible comment. By eliciting the fact that Tsujimura did
not say anything about his injury while he exited his car, it
was clear that the State’s purpose was to imply that Tsujimura’s
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injuries did not physically inhibit him from performing the FSTs
and to inferentially establish that Tsujimura’s diminished
faculties during the FSTs were a product of intoxication and not
influenced by his injuries.
This purpose was essentially conceded by the State
when it indicated in its answering brief that one of the
purposes of the prosecutor’s question was to “show that there
was no indication that Tsujimura’s leg injury affected the FST
test.” The State therefore intended for the exchange between
the prosecutor and Officer Billins to adduce information about
Tsujimura’s prearrest silence as substantive proof of his guilt,
which as discussed supra, the State may not do. See also Ouska
v. Cahill-Masching, 246 F.3d 1036, 1049 (7th Cir. 2001); State
v. Leach, 807 N.E.2d 335, 339 (Ohio 2004); Tortolito v. State,
901 P.2d 387, 391 (Wyo. 1995).
In addition, even if we were to assume that the
State’s purpose in offering evidence of Tsujimura’s prearrest
silence was proper, the character of the evidence would still
lead to the conclusion that its admission at trial was improper.
The evidence suggested to the district court judge that
Tsujimura’s silence implied that his physical condition while
performing the FSTs was due to alcohol impairment and that,
therefore, he was guilty as charged. That is, the character of
the information about Tsujimura’s prearrest silence was such
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that it suggested to the factfinder that Tsujimura’s prearrest
silence may be considered as inferential evidence of Tsujimura’s
guilt. And the district court accepted this suggestion. In
finding Tsujimura guilty, the district court expressly relied on
Officer Billins’ testimony that when Tsujimura “alighted from
the car, he did not indicate any difficulty walking.” Thus, the
court used Tsujimura’s prearrest silence at least in part to
find him guilty of OVUII.24
Accordingly, the information regarding Tsujimura’s
prearrest silence was erroneously admitted because the State’s
purpose in adducing it was to imply Tsujimura’s guilt and
because the character of the information suggested to the
district court judge that it may be considered as inferential
evidence of Tsujimura’s guilt. Each of these reasons is
independently sufficient to support the conclusion that the
information elicited by the prosecutor violated Tsujimura’s
right against compelled self-incrimination guaranteed by article
I, section 10 of the Hawaii Constitution.25
24
Although the district court judge in this case relied on evidence
of prearrest silence in rendering his verdict, it is the State’s purpose for
proffering the evidence (whether the State intended for the evidence to imply
the defendant’s guilt) or the character of the evidence (whether it suggests
to the factfinder that guilt may be inferred from prearrest silence) that is
the pivotal consideration.
25
It is noted that State v. Alo, 57 Haw. 418, 558 P.2d 1012 (1976),
does not apply in this case. There, the defendant offered self-serving
testimony as to statements he allegedly made to police after he was arrested
and given Miranda warnings. Id. at 423, 558 P.2d at 1015. On cross-
(continued . . .)
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The concurring and dissenting opinion (dissent)
proposes that “the Rodrigues analysis requires courts to discern
whether the State sought to imply a defendant’s guilt by virtue
of the very fact that the defendant was silent.” Dissent at 4.
According to the dissent, “the Rodrigues test requires courts to
evaluate whether the State elicited evidence of the defendant’s
silence as direct evidence of the defendant’s culpability, or
whether the State sought to legitimately illustrate other
relevant facts by virtue of the defendant’s lack of verbal
communication.” Dissent at 6. Thus, the dissent posits that
Rodrigues does not preclude the State from using a defendant’s
silence in order to imply other facts that “identify[] the gaps
in the defendant’s theory of the case or other exculpatory
evidence that the defendant has adduced at trial.” Dissent at
4.
We respectfully disagree with the dissent because its
approach would allow the State to use a defendant’s silence to
indirectly imply or obtain evidence that bears upon the
defendant’s guilt. Under the dissent’s view, a prosecutor’s
comment would be improper only if it directly suggested to the
(continued . . . )
examination, the State asked questions intended to establish that the
defendant was silent post-arrest and post-Miranda. Id. at 421—32, 558 P.2d
at 1014—15. This court held that the questions about defendant’s silence
after his arrest were proper. Id. at 425—26, 558 P.2d at 1017. Thus, in
Alo, this court allowed the State to use post-arrest, post-Miranda silence in
order to refute the defendant’s testimony regarding what he allegedly said to
the police at the time of his arrest.
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factfinder that the defendant is guilty because he or she
remained silent in a situation wherein an innocent person would
have spoken. In cases such as this one, the dissent’s approach
would permit the State to indirectly use the defendant’s
prearrest silence to gain substantive evidence that bears upon
the defendant’s guilt. So long as the prosecutor’s comment only
utilizes silence in order to obtain other evidence or establish
inferences that can substantively prove the defendant’s guilt,
the dissent’s interpretation of Rodrigues would permit the
comment.
This could not be the case because direct and indirect
use of a defendant’s silence has the same ultimate effect: it
serves as a mechanism for the State to imply the defendant’s
guilt. The only difference between the two is the level of
blatancy. With indirect use, the State utilizes silence as the
means to garner evidence or inferences that bear upon the
defendant’s guilt. With direct use, the State employs silence
as proof that the defendant is guilty for failing to speak. In
short, the dissent’s framework would allow the State to do
indirectly what the dissent concedes the State may not do
directly. In this case, for example, the dissent’s framework
deems the comment on Tsujimura’s prearrest silence as
constitutional because it illustrates “other relevant facts.”
Dissent at 6. Those relevant facts, however, relate to the
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determination of Tsujimura’s guilt. Thus, the dissent’s
framework runs counter to the rationale underlying the
prohibition on the use of prearrest silence as substantive proof
of guilt.26 See supra. Whether silence is used directly or
indirectly, the person against whom the silence is used would be
punished for exercising a constitutional right in the same
manner and to the same extent: under either instance, the
person’s silence would ultimately bear upon the determination of
his or her guilt. This result is in direct contravention of
this court’s precedents. See, e.g., State v. Wakisaka, 102
Hawaii 504, 514–15, 78 P.3d 317, 327–28 (2003).
Finally, the dissent’s framework is not supported by
Rodrigues. Rodrigues did not hold that indirect use of silence
as substantive proof of guilt, a course of action authorized
26
The dissent elaborates on its approach by indicating that it
allows silence to be used to “support a collateral fact other than the
defendant’s guilt itself.” Dissent at 11. The dissent then characterizes a
defendant’s physical state and state of mind as “collateral” facts that may
be proved by relying at least in part on the defendant’s silence. Dissent at
10. However, state of mind is an essential component of the State’s burden
of proof in criminal cases. HRS § 702–204 (1993). And a defendant’s
physical state is critical in offenses such as OVUII, see HRS § 291E-61(a)(1)
(Supp. 2014), whose proof most often relies on the manner in which certain
physical acts are performed and on the physical manifestations of
intoxication and impairment. To this extent, state of mind and physical
state are hardly “collateral” or “ancillary.” Dissent at 9, 11.
Even accepting the dissent’s framework--that silence may be used
to establish collateral facts--Tsujimura’s silence cannot be said to have
been used in this manner. Tsujimura’s silence was used to prove that his
performance of the FSTs was not influenced by his injury but by an
intoxicant, thereby supporting a finding of guilt. Thus, the use of his
silence was not simply geared toward establishing a collateral “fact that is
separate and distinct” from evidence of Tsujimura’s guilt. Dissent at 10.
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under the dissent’s framework, is permissible. The information
about the defendant’s silence in Rodrigues was not intended or
used to establish, directly or indirectly, the defendant’s guilt
or innocence. See State v. Rodrigues, 113 Hawaii 41, 49—50, 147
P.3d 825, 833–34 (2006) (explaining that the challenged line of
inquiry “was unaccompanied by any implication of guilt”
(emphasis added)). Thus, the dissent’s framework, which would
allow the indirect use of silence as a tool to elicit evidence
or inferences that bear upon the defendant’s guilt (as the State
did in this case), is not consistent with Rodrigues.
4. The Error Was Not Harmless Beyond a Reasonable Doubt
When an error amounts to a violation of the privilege
against compelled self-incrimination under article I, section
10, the analysis proceeds to whether the error was harmless
beyond a reasonable doubt. See State v. Mainaaupo, 117 Hawaii
235, 247—48, 178 P.3d 1, 13—14 (2008). “In applying the
harmless beyond a reasonable doubt standard the court is
required to examine the record and determine whether there is a
reasonable possibility that the error complained of might have
contributed to the conviction.” State v. Balisbisana, 83 Hawaii
109, 114, 924 P.2d 1215, 1220 (1996) (quoting State v. Holbron,
80 Hawaii 27, 32, 904 P.2d 912, 917 (1995)). As discussed, the
district court rendered its verdict in partial reliance upon
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Officer Billins’ testimony that Tsujimura did not say anything
about his injury when he exited his car. The district court
also incorrectly assumed that it was proper for the State to use
Tsujimura’s prearrest silence in order to imply that he was
under an obligation to say something at the time of the stop and
that Tsujimura’s prearrest silence could be used as substantive
proof of guilt. In addition, looking at the evidentiary record
at trial--including evidence countervailing a finding of
intoxication--it cannot be said that the error in admitting
Officer Billins’ testimony regarding Tsujimura’s prearrest
silence was harmless beyond a reasonable doubt.27 Id.
Accordingly, Tsujimura’s conviction must be vacated and the case
remanded to the district court for a new trial.28 See Tachibana
27
For purposes of the harmless error analysis, it is assumed that
the evidence regarding Tsujimura’s performance of the FSTs was properly
admitted, see supra note 6.
28
Tsujimura also asserts that there was insufficient evidence to
establish that he was impaired by “alcohol” because the State did not
introduce evidence that he consumed alcohol derived from distillation. The
statutory definition of “alcohol,” as discussed supra Part IV.A, is not
limited to alcohol produced by distillation. Thus, the State was not
required to introduce evidence as to the nature, origin, or the specific type
of alcohol that Tsujimura consumed, and Tsujimura’s contention that there was
insufficient evidence to establish his consumption of alcohol produced by
distillation is without merit.
Tsujimura additionally challenges the sufficiency of the evidence
in support of his conviction. Officer Billins testified regarding
Tsujimura’s driving before he was stopped, delayed reaction after he was
asked to pull over, his physical condition, and his actions while performing
the FSTs. Even assuming that the district court improperly admitted
testimony regarding whether Tsujimura passed or failed the FSTs, see supra
note 6, the adduced evidence, viewed “in the light most favorable to the
State,” constitutes “substantial evidence to support the conclusion” that
Tsujimura’s mental faculties or ability to care for himself and guard against
(continued . . .)
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v. State, 79 Hawaii 226, 240, 900 P.2d 1293, 1307 (1995) (“Once
a violation of the constitutional right to testify is
established, the conviction must be vacated unless the State can
prove that the violation was harmless beyond a reasonable
doubt.”); State v. Tabigne, 88 Hawaii 296, 306-07, 966 P.2d 608,
618-19 (1998) (remanding the case for retrial after finding not
harmless the constitutional error involved).
The dissent contends that, “even assuming that the
comment was an improper comment on Tsujimura’s silence, the
comment was harmless beyond a reasonable doubt.” Dissent at 2.
The dissent reasons that “the district court did not necessarily
rely on Tsujimura’s silence in finding that ‘[w]hen he alighted
from the car, he did not indicate any difficulty walking.’”
Dissent at 14. According to the dissent, the district court’s
statement--that Tsujimura did not indicate any difficulty
walking when he alighted from the car--could have been based on
Officer Billins’ observations, as gleaned from the officer’s
testimony and the district court’s direct questions to the
officer. Dissent at 14.
We respectfully disagree with the dissent because the
district court’s statement, naturally read, was a description of
(continued . . . )
casualty were impaired. State v. Hirayasu, 71 Haw. 587, 589, 801 P.2d 25, 26
(1990) (quoting State v. Hernandez, 61 Haw. 475, 477, 605 P.2d 75, 77
(1980)). Thus, Tsujimura’s conviction was supported by legally sufficient
evidence.
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Tsujimura’s failure to speak about any difficulty walking as he
was exiting his car and during his interaction with Officer
Billins. The sentence immediately prior to the district court’s
statement was, “When Mr. Tsujimura was asked to participate [by
Officer Billins] in a field sobriety test, Mr. Tsujimura did
indicate . . . there was an injury to his left leg.” Thus, the
court’s use of “indicate” in all likelihood pertained to
Tsujimura’s oral responses or lack of responses to Officer
Billins during their interaction. In any event, the alternative
explanation that the dissent posits for the district court’s
statement does not eliminate the reasonable possibility that the
district court relied on Officer Billins’ reference to
Tsujimura’s prearrest silence and, as such, the reasonable
possibility that this error might have contributed to
Tsujimura’s conviction. Balisbisana, 83 Hawaii at 114, 924 P.2d
at 1220.
In asserting that the admission of Tsujimura’s
prearrest silence into evidence was harmless, the dissent points
to evidence other than Tsujimura’s prearrest silence that
supports the district court’s finding of guilt. Dissent at 16—
17. However, according to Officer Billins’ testimony,
Tsujimura’s vehicle was not changing lanes, was not going over
the speed limit, was not slowing down or speeding up, did not
follow other vehicles too closely, and did not make any
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inconsistent signals; it took Tsujimura only eight seconds to
pull over from the time Officer Billins turned on his sirens and
lights; and out of the 24 NHTSA visual detection clues,
Tsujimura exhibited only one--trouble maintaining lane position.
Officer Billins’ testimony also indicated that Tsujimura did not
repeat questions or comments, lean on his vehicle, or provide
incorrect information or change his answers while being
questioned; red, watery eyes could be caused by a number of
factors other than alcohol impairment; and odor of alcohol is a
poor indicator of a person’s level of impairment and has no
bearing on the amount and nature of the alcohol that the person
consumed. Accordingly, the totality of the evidence against
Tsujimura was far from compelling or overwhelming as to render
harmless any error in admitting the State’s comment on
Tsujimura’s prearrest silence. See Mainaaupo, 117 Hawaii at
255, 178 P.3d at 21 (concluding that “the evidence . . . is not
so overwhelming that we are convinced that the [deputy
prosecuting attorney’]s intrusion into [the defendant’]s right
to remain silent may not have contributed to his conviction”).
V. CONCLUSION
Accordingly, we hold that the right to remain silent
under article I, section 10 of the Hawaii Constitution attaches
at least at the point at which a person has been seized. Such
evidence regarding a person’s exercise of the right to remain
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silent may not be used as substantive evidence of guilt.
Relatedly, the State may not elicit evidence of prearrest
silence to imply the defendant’s guilt or introduce evidence
whose character suggests to the factfinder that the defendant’s
prearrest silence is inferential evidence of the defendant’s
guilt. In this case, Tsujimura’s prearrest silence while
detained during an investigatory stop was introduced into
evidence as substantive proof of Tsujimura’s guilt. The
admission of this evidence was not harmless. Hence, the ICA
Judgment on Appeal and the district court’s judgment are
vacated, and the case is remanded to the district court for a
new trial.
Alen M. Kaneshiro /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Sonja McCullen
for respondent /s/ Michael D. Wilson
52