State v. Tronson

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2020
07:49 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellant, v.
JERAMY M. TRONSON, Defendant-Appellee

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-19-00119)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Chan, JJ.)

Plaintiff-Appellant the State of Hawai#i (State)

appeals from the Notice of Entry of Judgment and/or Order and

Plea/Judgment, filed on May 9, 2019 (Judgment), in the District

Court of the First Circuit, Honolulu Division (District Court).1

On appeal, the State contends that the District Court erred by

granting Defendant-Appellee Jeramy M. Tronson's (Tronson's)

motion to suppress statements, arguing that Tronson was not in

custody or seized until after a standard field sobriety test

(SFST) was administered to Tronson and he was arrested for

1
The Honorable Summer Kupau-Odo presided.
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Operating a Vehicle Under the Influence of an Intoxicant (OVUII),

in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) (Supp.

2018).2 Thus, the State argues that various of Tronson's

statements, and Tronson's performance on the SFST, should not

have been suppressed. The State also challenges Conclusions of

Law (COLs) 6, 9, 10, 11, 12, and 13 of the District Court's June

13, 2019 Findings of Fact and Conclusions of Law and Order

Granting Defendant's Motion to Suppress Statements (Suppression

Order).

I. BACKGROUND

On December 24, 2018, at about 3:34 a.m., Honolulu

Police Department (HPD) Officer Tyler Maalo (Officer Maalo)

observed Tronson's vehicle nearing the rear of his vehicle, as

they were traveling east on South King Street, approaching

Kapiolani Boulevard.3 As Officer Maalo's vehicle was nearing a

concrete island, he observed Tronson's vehicle pass him on the

left, and then swerve back into his lane to avoid the concrete

2
HRS § 291E-61(a) states, in relevant part:

§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (a) A person commits the offense of
operating a vehicle under the influence of an intoxicant if
the person operates or assumes actual physical control of a
vehicle:

(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
mental faculties or ability to care for the
person and guard against casualty[.]
3
The background facts are taken primarily from the District Court's
Findings of Fact (FOFs), which are set forth in the Suppression Order, and
which are not challenged on appeal.

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island, causing Officer Maalo to break hard to avoid a collision.

Officer Maalo activated his blue lights and Tronson pulled into a

shopping center parking lot and stopped.

Upon approaching Tronson, Officer Maalo informed

Tronson that he pulled Tronson over because Tronson almost hit

his vehicle. Tronson apologized for almost hitting the officer's

car. As they were speaking, Officer Maalo detected an odor of

alcoholic beverage emitting from Tronson's breath. The officer

observed that Tronson had red and glassy eyes and that Tronson's

speech was slurred. Officer Maalo asked Tronson if he was

willing to participate in an SFST. Tronson agreed. As Tronson

exited his vehicle, he wobbled and dragged his feet. Tronson was

not free to leave the scene.

Prior to administering the SFST, Officer Maalo asked

Tronson eight preliminary questions, which are known as medical

rule-out questions: Do you have any physical defects or speech

impediments; are you taking any medications; are you under the

care of a doctor or dentist for anything; are you under the care

of an eye doctor; are you epileptic or diabetic; do you have an

artificial or glass eye; are you blind in either eye; and do you

wear corrective lenses. Tronson answered no to all of the

questions.

The SFST consists of three tests and prior to

administering them, Officer Maalo gave Tronson instructions,

asked him if he understood the instructions, and asked him if he

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had any questions. Officer Maalo told Tronson that he would be

judged on how well he followed the instructions. Tronson was not

advised of his Miranda rights at any point.4 After the SFST was

performed, Tronson was arrested for OVUII.

Tronson filed a motion to suppress statements. At the

hearing on the motion to suppress, in addition to the above,

Officer Maalo testified that when he stopped Tronson, he already

had all of the elements for a reckless driving charge and that he

could have arrested Tronson when he first engaged Tronson because

he had probable cause to arrest Tronson for Reckless Driving.5

After the hearing concluded, the District Court found (and

concluded) that Officer Maalo had probable cause to arrest

Tronson for Reckless Driving when the officer first approached

Tronson and Tronson was still sitting in his vehicle. The

District Court's COLs that are challenged on appeal state as

follows:
6. At the time when Officer Maalo first approached
Defendant while he was seated in his vehicle, there
existed probable cause to arrest Defendant for the
offense of Reckless Driving; and Defendant was not
free to leave. Accordingly, at this time, Defendant
was "in custody" for Miranda purposes.

. . . .

4
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
HRS § 291-2 (2007) provides:

§ 291-2 Reckless driving of vehicle or riding of
animals; penalty. Whoever operates any vehicle or rides any
animal recklessly in disregard of the safety of persons or
property is guilty of reckless driving of vehicle or
reckless riding of an animal, as appropriate, and shall be
fined not more than $1,000 or imprisoned not more than
thirty days, or both.

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9. When Officer Maalo informed Defendant that he was
being pulled over for speeding and almost causing a
collision, it was a statement reasonably likely to
elicit an incriminating response. It was reasonably
likely that Defendant would respond to the statement
by apologizing or explaining his actions, thereby
incriminating himself. As such, Officer Maalo's
statement to Defendant about why Defendant was pulled
over qualifies as interrogation for Miranda purposes.
Accordingly, Defendant's response is suppressed.

10. Pursuant to State v. Ferm, 94 Haw. 17 (2000), a
subject's refusal to participate in the SFST can be
used at trial to show consciousness of guilt. As
such, inviting a subject to participate in the SFST is
reasonably likely to elicit an incriminating response.
Therefore, Defendant's response to being asked if he'd
like to participate in the SFST is suppressed.

11. In State v. Vliet, 91 Haw. 288 (1999), the supreme
court ruled that consumption of alcohol only needs to
be a contributing factor in a defendant's impairment.
Further, State v. Eli, 126 Haw. 510 (2012), held that
an incriminating response refers to both inculpatory
and exculpatory responses. In an OVUII investigation,
where alcohol need only be a contributing factor in a
defendant's impairment, the MRO questions are
reasonably likely to elicit an incriminating response.
As such, Defendant's responses to all MRO questions
are suppressed.

12. Defendant was told by Officer Maalo, "You will be
judged on how well you follow the instructions . . ."
Officer Maalo testified that how well a subject
follows his instructions during the SFST may provide
insight into the subject's mental faculties. Further,
if a subject states that he understands the
instructions and has no questions, then any deviation
from the instructions while performing the tests is
likely to be attributed to impairment by alcohol. As
such, providing the instructions to Defendant and
asking him if he understands the instructions is
reasonably likely to elicit an incriminating response.
Therefore, Defendant's response to whether he
understands the instructions is suppressed.

13. "The fruit of the poisonous tree [doctrine] prohibits
the use of evidence at trial which comes to light as a
result of the exploitation of a previous illegal act
of the police." State v. Fukusaku, 85 Hawaii 462, 475
(1997). Officer Maalo testified that he would not
administer the SFST without (1) receiving consent from
the subject; (2) going thru [sic] the MRO; and (3)
assuring that the subject understands the instructions
to each test and has no questions. As such, if any of
these questions or sets of questions are suppressed
then the results of the SFST become fruit of the
poisonous tree. Accordingly, the results of the SFST
in its entirety are suppressed.

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On May 9, 2019, the District Court entered the

Judgment, which granted Tronson's motion to suppress statements.

II. POINT OF ERROR

On appeal, the State raises a single point of error,

contending that the District Court erred in COLs 6, and 9 to 13,

and in ordering that Tronson's statements are suppressed, because

Tronson was not in custody or seized until after he took the SFST

and was arrested for OVUII.

III. APPLICABLE STANDARDS OF REVIEW
The proponent of the motion to suppress has the burden
of establishing, by a preponderance of the evidence, that
the statements or items sought to be excluded were
unlawfully secured and that his or her right to be free from
unreasonable searches or seizures was violated under the
fourth amendment to the United States Constitution and
article I, section 7 of the Hawai#i Constitution.

State v. Estabillio, 121 Hawai#i 261, 269, 218 P.3d 749, 757

(2009) (citations omitted).

A ruling on a motion to suppress is reviewed de novo,

and the appellate court must look at the entire record on appeal

to determine whether the ruling was right or wrong. State v.

Joseph, 109 Hawai#i 482, 493, 128 P.3d 795, 806 (2006). The

District Court's COLs are also reviewed de novo. See id.

IV. DISCUSSION

The State contends that the District Court erred in

suppressing Tronson's responses to the medical rule-out

questions, Tronson's responses to the SFST instructions,

Tronson's statement in response to why he was stopped, Tronson's

performance on the SFST, and any statements Tronson made after

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the SFST6 because Miranda warnings had not been read to Tronson

immediately upon his being stopped. The State submits that

Miranda warnings were not required because Tronson was not in

custody or interrogated until after the SFST was administered and

he was arrested for OVUII.

We recently addressed these issues in State v.

Sagapolutele-Silva, CAAP-XX-XXXXXXX, 2020 WL 1699907 (Haw. App.

Apr. 8, 2020), wherein, under similar circumstances, we

considered the application of the well-established constitutional

principle that the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from the custodial

interrogation of a defendant unless the defendant has first been

advised of his or her Miranda rights.

In Sagapolutele-Silva, we examined the Hawai#i Supreme

Court's decisions in State v. Wyatt, 67 Haw. 293, 687 P.2d 544

(1984), and State v. Kaleohano, 99 Hawai#i 370, 56 P.3d 138

(2002), before turning to the question of whether Sagapolutele-

Silva's suppressed statements stemmed from custodial

interrogation. Sagapolutele-Silva, 2020 WL 1699907 at *4-5. In

Wyatt, where the defendant was briefly detained and therefore

seized, but not in custody or coercively questioned, the supreme

court held that Miranda warnings were not required before she was

6
None of the FOFs and COLs identify any statements made after the
SFST. On appeal, the State fails to identify any such statements. To the
extent Tronson made any statements to Officer Maalo after the SFST, the
State's argument that the District Court erred in suppressing such statements
is waived.

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asked if she had been drinking. Wyatt, 67 Haw. at 297-301, 687

P.2d at 548-50. The supreme court further concluded that the

SFST that the defendant performed was not constitutionally infirm

because the test sought only an exhibition of her physical

characteristics of coordination, rather than communications or

testimony, even though its purpose was to gather evidence of

criminal conduct. Id. at 302-03, 687 P.2d at 551. In Kaleohano,

the supreme court noted that if probable cause to arrest or

sustained and coercive questioning were present, then questions

posed by the police could amount to custodial interrogation.

Kaleohano, 99 Hawai#i at 377, 56 P.3d at 145. The court

concluded that because there was no probable cause to arrest the

defendant, and in light of the fact that the officer did not

subject the defendant to sustained and coercive questioning, the

officer was not required to give the defendant a Miranda warning

prior to asking her if she had been drinking. Id. at 377-78, 56

P.3d at 145-46.

Here, we must examine whether, under the totality of

the circumstances, Tronson's suppressed statements stemmed from

custodial interrogation. Tronson was not in custody merely

because he was seized in connection with a traffic stop. State

v. Ah Loo, 94 Hawai#i 207, 211, 10 P.3d 728, 732 (2000). To

determine whether an interrogation is custodial, the totality of

the circumstances analysis focuses on "the place and time of the

interrogation, the length of the interrogation, the nature of the

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questions asked, the conduct of the police, and [any] other

relevant circumstances[.]" Id. at 210, 10 P.3d at 731 (citing

State v. Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544 (1982));

see also State v. Kazanas, 138 Hawai#i 23, 35, 375 P.3d 1261,

1273 (2016) (reiterating same). In this regard, the supreme

court has acknowledged that "no precise line can be drawn"

between "custodial interrogation," on the one hand, and

"permissible general on-the-scene questioning," on the other. Ah

Loo, 94 Hawai#i at 210, 10 P.3d at 731 (citing State v.

Patterson, 59 Haw. 357, 362, 581 P.2d 752, 755-56 (1978))

(brackets omitted). Custodial interrogation is comprised of two

components, "interrogation" and "custody." Kazanas, 138 Hawai#i

at 35, 375 P.3d at 1273. The totality of the circumstances test

applies to custodial interrogation, "in the sense that the

defendant is deprived of his or her freedom of action in any

significant way." Id. In contrast, "the touchstone in analyzing

whether 'interrogation' has taken place is whether the police

officer 'should have known that his or her words and actions were

reasonably likely to elicit an incriminating response from the

defendant.'" Id. at 38, 375 P.3d at 1276 (brackets and citation

omitted).

We first consider whether the District Court erred in

COL 6 by finding that there was probable cause to arrest Tronson

for Reckless Driving when he was initially stopped. In State v.

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Agard, 113 Hawai#i 321, 322, 151 P.3d 802, 803 (2007), the

supreme court explained:
We hold that (1) the reckless state of mind definition under
HRS § 702–206(3) (1993) applies to the reckless driving
statute, HRS § 291–2; (2) in determining whether an
identified risk is substantial and unjustifiable under HRS §
702–206(3), the nature and degree of the risk disregarded by
the actor, the nature and purpose of his conduct, and the
circumstances known to him in acting must be weighed; (3) in
this case a reckless state of mind can be inferred from the
circumstances to conclude that there was conscious awareness
of a substantial and unjustifiable risk to the safety of
others and property on the part of Respondent; and (4)
deference must be given to the trier of fact with respect to
questions of credibility and weight of the evidence.

In other words, it must be shown that the "Defendant

knew whether 'the safety of persons or property' was in peril."

State v. Quinn, No. 30111, 2010 WL 2675349, at *1 (Haw. App. July

7, 2010) (SDO) (quoting State v. Moleta, 112 Hawai#i 233, 240,

145 P.3d 776, 783 (App. 2006)).

As set forth above, at the hearing on Tronson's motion

to suppress statements, Officer Maalo testified that Tronson

passed the officer's car on the left and then abruptly swerved

back into the officer's lane, causing the officer to slam on his

brakes in order to avoid a collision. Officer Maalo caught up

with Tronson's vehicle, activated his blue lights and siren, and

Tronson's vehicle came to a stop in a shopping center. We

conclude that the District Court did not err in concluding that,

at this initial point of the stop, a person of reasonable caution

would have been warranted in believing that Tronson had a

conscious awareness that his driving had posed a substantial and

unjustifiable risk to the safety of others and property, to wit,

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Officer Maalo and/or his vehicle. See HRS § 291-2; Agard, 113

Hawai#i at 322, 151 P.3d at 803; State v. Maganis, 109 Hawai#i 84,

86, 123 P.3d 679, 681 (2005) ("Probable cause exists when the

facts and circumstances within one's knowledge and of which one

has reasonably trustworthy information are sufficient in

themselves to warrant a person of reasonable caution to believe

that an offense has been committed. This requires more than a

mere suspicion but less than a certainty." (Emphasis and

citation omitted)). Accordingly, the District Court did not err

in concluding that Officer Maalo had probable cause to arrest

Tronson for Reckless Driving at this point.

That said, Officer Maalo was not required to provide

Tronson with Miranda warnings prior to informing Tronson of why

he was stopped. As we recently held in Sagapolutele-Silva,

"[g]enerally, informing a defendant of the reason for being

stopped or arrested does not constitute custodial interrogation

likely to elicit an incriminating response." Sagapolutele-Silva,

2020 WL 1699907 at *9 (citations omitted); see Rhode Island v.

Innis, 446 U.S. 291, 301 (1980) (holding that the term

"interrogation" does not include "words or actions on the part of

the police [that are] normally attendant to arrest and custody");

United States v. Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir.

1994) ("[W]hen an officer informs a [suspect] of [the]

circumstances" of his arrest or explains evidence against him,

"this information may be considered normally attendant to arrest

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and custody." (quoting United States v. Crisco, 725 F.2d 1228,

1232 (9th Cir. 1984))). Officer Maalo informing Tronson of why

he was stopped did not amount to an "interrogation" and Miranda

warnings were not required. The District Court erred in COL 9 in

concluding that there was an interrogation at this point and in

suppressing the statement Tronson made in response to being

informed of the reason that he was stopped.

As we further noted in Sagapolutele-Silva, there is no

requirement for the police to arrest a suspect once probable

cause is established. Sagapolutele-Silva, 2020 WL 1699907 at *6

(citation omitted). The police need not halt an investigation

the moment they have the minimum evidence to establish probable

cause because it may fall short of evidence necessary to support

a criminal conviction. Id. Nevertheless, "[a]n individual in

police custody may not be subjected to interrogation without

first being advised of his Miranda rights." Id. (citation and

internal quotation marks omitted).

Under the totality of the circumstances in this case,

Tronson was in custody for Reckless Driving. Officer Maalo had

probable cause to arrest him for Reckless Driving when he stopped

him. In addition, as discussed below, upon his initial

conversation with Tronson, Officer Maalo had a reasonable

suspicion that he was driving while intoxicated. Officer Maalo

testified that Tronson was not free to leave from the time he was

stopped. Under the totality of the circumstances, the District

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Court did not err in COL 6 in concluding that Tronson was in

custody and that Tronson should have been given Miranda warnings

prior to any interrogation.

Nevertheless, the investigation for OVUII in this case

constituted a separate and distinct investigation, albeit related

to the initial traffic stop, and it required an independent

reasonable suspicion. See generally Estabillio, 121 Hawai#i at

273, 218 P.3d at 761. There was reasonable suspicion that

Tronson was operating a vehicle while intoxicated based upon his

driving; his red, watery, and glassy eyes; and the smell of

alcohol on his breath. State v. Barrickman, 95 Hawai#i 270, 274-

77, 21 P.3d 475, 479-82 (App. 2001) (there was reasonable

suspicion to investigate driving while intoxicated based on

defendant's glassy eyes and smell of alcohol on breath).

However, red and glassy eyes alone and imperfect driving are

insufficient to establish probable cause to arrest a person for

OVUII. Kaleohano, 99 Hawai#i at 377-78, 56 P.3d at 145-46.

As noted by the supreme court in Kernan v. Tanaka, 75

Haw. 1, 38 n.23, 856 P.2d 1207, 1226 n.23 (1993):
Usually, the police administer a field sobriety test
consisting of specific procedures when a driver has been
stopped as a DUI suspect. If a driver does not exit
voluntarily, the police must order him or her out of the
vehicle even though probable cause to arrest may not have
been established. Should the suspect fail the test, an
arrest will ensue. Thus, it is the test failure that
provides the police with probable cause to arrest. We do
not require the police to have probable cause to arrest
prior to the administration of the field sobriety test
because such a requirement unduly burdens law enforcement.

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"Field sobriety tests are designed and administered to

avoid the shortcomings of casual observation." Wyatt, 67 Haw. at

302, 687 P.2d at 551 (brackets omitted). Here, Officer Maalo did

not initially have probable cause to arrest Tronson for OVUII

simply based upon noticing that he had red, glassy eyes, and an

odor of alcohol on his breath. And, the right against self-

incrimination is not necessarily implicated whenever a person

suspected of criminal activity is compelled in some way to

cooperate in developing evidence which may be used against him,

such as when a driver is asked to participate in a SFST. Id. As

discussed in Sagapolutele-Silva, the Wyatt court held that since

performance on an SFST was neither communication nor testimony,

the trial court did not err by refusing to suppress the officer's

SFST observations. Sagapolutele-Silva, 2020 WL 1699907 at *7

(citing Wyatt, 67 Haw. at 301-03, 687 P.2d at 550-51).

In addition, in Pennsylvania v. Muniz, 496 U.S. 582,

603-04 (1990), the United States Supreme Court rejected the

contention that Miranda warnings are required prior to an inquiry

as to whether a defendant understood SFST instructions, because

the "focused inquiries were necessarily 'attendant to' the police

procedure held by the court to be legitimate." Accordingly,

asking Tronson whether he understood the instructions to the SFST

did not implicate his right to self-incrimination. Thus, we

conclude that the District Court erred in COLs 10, 12, and 13 by

suppressing Tronson's response to whether he would participate in

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the SFST, whether he understood the instructions to the SFST, and

the officer's observations of his performance on the SFST.

However, due to Tronson being in custody for Reckless

Driving, the medical rule-out questions, which were asked in

relation to the OVUII investigation here, constituted

interrogation warranting Miranda warnings. As we noted in

Sagapolutele-Silva, other courts have observed that the failure

to provide a Miranda warning when an individual is in custody for

one crime will taint an interrogation even if the interrogation

relates to a different crime. See Mathis v. United States, 391

U.S. 1, 2, 4-5 (1968) (noting that there is "nothing in the

Miranda opinion which calls for a curtailment of the warnings to

be given persons under interrogation by officers based on the

reason why the person is in custody"); see also, e.g., People v.

Bejasa, 140 Cal. Rptr. 3d 80, 91 (Ct. App. 2012); State v.

Lawler, No. L-96-223, 1997 WL 77511, *1-2 (Ohio Ct. App. Feb. 21,

1997); State v. Lien, No. 32443-5-III, 2016 WL 4267689 (Wash. Ct.

App. Aug. 11, 2016). Here, Officer Maalo testified that Tronson

was not free to leave during his encounter with Tronson in

connection with his investigation into OVUII, and there was

nothing to indicate that Tronson was free to go about his

business before being questioned about OVUII. Tronson was in

custody for Reckless Driving when the medical rule-out questions

were posed.

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"[T]he touchstone in analyzing whether interrogation

has taken place is whether the police officer should have known

that his [or her] words and actions were reasonably likely to

elicit an incriminating response from the defendant." Kazanas,

138 Hawai#i at 38, 375 P.3d at 1276 (citation and internal

quotation marks omitted). Relying upon Innis, 446 U.S. 291

(1980), Kazanas reiterated that "interrogation consists of any

express question - or, absent an express question, any words or

conduct - that the officer knows or reasonably should know is

likely to elicit an incriminating response." Id. (citation and

internal quotation marks omitted). An incriminating response is

any response, either inculpatory or exculpatory. Innis, 446 U.S.

at 301 n.5. In contrast, a physical inability to articulate

words in a clear manner due to lack of muscular coordination of

the tongue and mouth is not testimonial evidence for purposes of

self-incrimination. Muniz, 496 U.S. at 590-91.

In this case, the District Court's FOF 10 identified

the medical rule-out questions posed to Tronson as follows:
i. Do you have any physical defects or speech
impediments?
ii. Are you taking any medications?
iii. Are you under the care of a doctor or dentist
for anything?
iv. Are you under the care of an eye doctor?
v. Do you have an artificial or glass eye?
vi. Are you epileptic or diabetic?
vii. Are you blind in either eye?
viii. Do you wear corrective lenses?

Based on, inter alia, our analysis in Sagapolutele-

Silva, we conclude that the medical rule-out questions posed to

Tronson were reasonably likely to elicit an incriminating

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response and, therefore, constituted interrogation. See

Sagapolutele-Silva, 2020 WL 1699907 at *7-8.

Tronson was in custody. He had not been given Miranda

warnings. The medical rule-out questions constituted

interrogation. Thus, we conclude that his responses to those

questions should have been suppressed and the District Court did

not err in so concluding in COL 11.

V. CONCLUSION

For these reasons, the May 9, 2019 Judgment is affirmed

in part and vacated in part. This case is remanded to the

District Court for further proceedings.

DATED: Honolulu, Hawai#i, June 30, 2020.

On the briefs:
/s/ Lisa M. Ginoza
Brian R. Vincent, Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Katherine G. Leonard
for Plaintiff-Appellant. Associate Judge

Alen M. Kaneshiro, /s/ Derrick H.M. Chan
for Defendant-Appellee. Associate Judge

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