NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2020
08:09 AM
Dkt. 59 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
NICOLAS MICHAEL LEE, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(Case No. 1DTA-17-02929)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Nicolas Michael Lee (Lee) was
convicted of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1) (Supp. 2016).1 Lee appeals from the "Notice of
Entry of Judgment and/or Order and Plea/Judgment[,]" entered on
July 25, 2018, and the "Notice of Entry of Judgment and/or Order
and Plea/Judgment[,]" entered on September 21, 2018 (together,
Judgment), by the District Court of the First Circuit, Honolulu
Division.2 Lee contends that the district court erred by:
1
HRS § 291E-61 provides, in relevant part:
(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[.]
2
The Honorable William M. Domingo presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(1) denying his motion to suppress evidence; (2) failing to
conduct a proper Tachibana3 colloquy; (3) convicting him based on
insufficient evidence; and (4) failing to engage him in a
colloquy before accepting the parties' stipulation to a witness's
qualifications to administer the standard field sobriety test
(SFST). We hold that the district court should have suppressed
Lee's responses to the SFST medical rule-out questions.
Accordingly, we vacate the Judgment. Because we also hold that
substantial evidence supported Lee's conviction, we remand for a
new trial.
1. The district court erred by denying
Lee's motion to suppress in total.
We review a trial court's ruling on a motion to
suppress de novo to determine whether it was "right" or "wrong."
State v. Edwards, 96 Hawai#i 224, 231, 30 P.3d 238, 245 (2001)
(citation omitted). In so doing, we review "the record of the
hearing on the motion to suppress and the record of the trial."
State v. Vinuya, 96 Hawai#i 472, 481, 32 P.3d 116, 125 (App.
2001) (citations omitted).
Lee first argues that State v. Tsujimura, 140 Hawai#i
299, 400 P.3d 500 (2017), mandates the suppression of his "post-
seizure non-verbal communicative responses (i.e[.] his physical
performance on the SFST)." In that case, Tsujimura was charged
with OVUII. At trial, a police officer testified that Tsujimura
said he had an old knee injury before taking the SFST. The State
asked the officer whether Tsujimura said, while getting out of
his car after being stopped, that he could not get out of the car
because of an old knee injury. Over defense counsel's objection,
the officer responded that "[n]o statements were made." Id. at
305, 400 P.3d at 506 (emphasis omitted). The obvious inference
was that Tsujimura's performance on the SFST was the result of
intoxication, not an old knee injury. The supreme court held
that Tsujimura's silence — not saying he had a knee injury while
getting out of his car — was improperly admitted into evidence
3
Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d 1293, 1303
(1995).
2
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and was used as substantive proof of guilt. Id. at 316-17, 400
P.3d at 517-18. Tsujimura does not support the proposition that
a defendant's physical performance on the SFST is a "non-verbal
communicative response." Rather, the supreme court has held that
a defendant's performance on the SFST "does not constitute
incriminating statements[ because] when conducting an [S]FST the
State does not seek 'communications' or 'testimony,' but rather,
'an exhibition of physical characteristics of coordination.'"
State v. Uchima, 147 Hawai#i 64, 84, 464 P.3d 852, 872 (2020)
(citing State v. Wyatt, 67 Haw. 293, 303, 687 P.2d 544, 551
(1984) (cleaned up)). Lee's reliance on Tsujimura is misplaced.
Lee next argues that he "was subjected to 'custodial
interrogation' by the [police] prior to and during the SFST and
was not advised of his Miranda[4] rights[.]" Before being
subjected to custodial interrogation, a person must be advised of
their right to remain silent, that anything they say can and will
be used against them, that they have the right to an attorney,
and that if they cannot afford an attorney one will be appointed
for them before they are questioned. State v. Kalai, 56 Haw.
366, 368, 537 P.2d 8, 11 (1975) (citing Miranda). "Custodial
interrogation" means "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of [their] freedom of action in any significant way."
Id. (emphasis omitted) (citing Miranda).
To determine whether an interrogation was custodial, we
"look to the totality of the circumstances, focusing on the place
and time of the interrogation, the length of the interrogation,
the nature of the questions asked, the conduct of the police, and
any other relevant circumstances." State v. Ah Loo, 94 Hawai#i
207, 210, 10 P.3d 728, 731 (2000) (cleaned up) (citations omit-
ted). Relevant circumstances include "whether the investigation
has focused on the suspect and whether the police have probable
cause to arrest [them] prior to questioning[.]" Id. (citations
omitted).
4
Miranda v. Arizona, 384 U.S. 436 (1966).
3
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In this case, Honolulu Police Department (HPD) officer
Daymon Carr testified that he was on duty early on July 28, 2017.
He was driving a marked police vehicle east on King Street,
toward the Ke#eaumoku Street intersection. He had the green
light. He saw a pickup truck headed mauka on Ke#eaumoku Street,
approaching King Street. The truck stopped suddenly before the
intersection; its front tires were past the stop line, in the
crosswalk. Officer Carr circled the block and stopped behind the
truck on Ke#eaumoku Street. When the light turned green the
truck went through the intersection, changed lanes without
signaling, and cut off another vehicle. The other vehicle had to
come to almost a complete stop to avoid a collision.
The truck then turned left, onto South Beretania Street
"at a higher rate of speed[.]" During the turn the truck tilted
up toward the passenger side and crossed "all lanes of traffic"
on South Beretania Street, into the fifth, rightmost lane. The
truck changed lanes and "sped up right behind, coming very close
to" an SUV, which it followed "very closely" for up to 200 feet
before both vehicles turned right. The SUV moved to the second
lane and stopped at the traffic light. The truck was in the
right lane, to the left of the SUV. The truck slowed down, then
"at an angle," went "straight towards the[] . . . back right side
bumper of the SUV[.]" The truck stopped suddenly, partially in
two lanes, "very close" to the SUV. Officer Carr thought the
truck was going to hit the SUV. After the light turned green and
the SUV moved ahead, Officer Carr stopped the truck.
When Officer Carr approached the truck he saw Lee in
the driver's seat, someone in the passenger seat, and another
person asleep in the truck bed. Officer Carr informed Lee why he
had been stopped and asked for Lee's license, which Lee provided.
Officer Carr testified that Lee "kind of like had a blank stare,
kind of lost" and had "red, watery, glassy eyes." Officer Carr
smelled a "strong odor of an alcoholic-type beverage coming from
the vehicle[,]" and from Lee's breath. Lee's red, watery, and
glassy eyes, and the odor of alcohol, indicated to Officer Carr
that Lee may be operating the truck under the influence of
alcohol.
4
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Officer Carr asked if Lee was willing to participate in
an SFST. Lee agreed, and Officer Carr asked Lee to exit the
truck and walk to the sidewalk. As he got out of the truck, Lee
"kind of stumbled backwards, regained his balance, and kind of
stood there." Officer Carr reminded Lee to walk to the sidewalk,
but instead of turning to walk, Lee "kind of walked sidewards
while facing his truck[.]" Once Lee was behind the truck, he
walked forward to the sidewalk.
Once on the sidewalk, Officer Carr asked Lee the
medical rule-out questions.5 Lee responded "no" to each
question. Officer Carr instructed Lee how to perform the SFST.6
While receiving instructions for the walk-and-turn test, Lee was
unable to keep his balance and began walking prematurely at least
three times. Officer Carr asked if Lee understood the
instructions or had any questions. Lee indicated he understood
and did not have questions.
During the walk-and-turn test, Lee only took 8 of the 9
steps. He stepped off the line on each step, and raised his arms
to shoulder height instead of keeping them at his side. He
failed to perform the turn correctly, and stumbled backwards.
After turning he walked 9 steps, but missed heel-to-toe on each
step.
Officer Carr testified that during the one-leg stand
test, Lee:
started off with his right foot, he raised it for like --
counted for a few seconds, placed it down, raised his left
foot, counted for a few seconds, placed it down, and then
raised his right foot, and then it continued between his
right foot for a couple of seconds, then his left foot for a
couple of seconds, and going back and forth throughout the
30 seconds.
Lee swayed side-to-side and raised his arms throughout the test.
Lee was arrested for OVUII.
5
The medical rule-out questions are whether the suspect (1) had
any speech impediments or physical defects, (2) was diabetic or epileptic,
(3) was taking any medication, (4) was under the care of a doctor or dentist,
(5) was under the care of an eye doctor, (6) had an artificial eye, or (7) was
wearing contact lenses.
6
Officer Carr testified that the SFST is comprised of the
Horizontal Gaze Nystagmus test, the Walk-and-Turn test, and the One-Leg Stand
test.
5
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Lee contends that he was in custody when he was first
stopped because Officer Carr had probable cause to arrest him for
reckless driving.7 We agree. We hold under the totality of
these circumstances, Officer Carr had probable cause to arrest
Lee for reckless driving when Lee was stopped; a person of
reasonable caution would have been warranted in believing that
Lee had a conscious awareness that his driving had posed a
substantial and unjustifiable risk to the safety of others and
property. See State v. Agard, 113 Hawai#i 321, 151 P.3d 802
(2007).
Because Lee was in custody, Officer Carr should have
given him Miranda warnings before any interrogation. See State v.
Sagapolutele-Silva, 147 Hawai#i 92, 100, 464 P.3d 880, 888 (App.
2020), cert. granted, No. SCWC-XX-XXXXXXX (Haw. Sept. 16, 2020).
Because the Miranda warnings were not given, Lee's responses to
the medical rule-out questions should have been suppressed. Id.
at 102-03, 464 P.3d at 890-91; cf. Uchima, 147 Hawai#i at 84, 464
P.3d at 872 (noting that where "the district court specifically
ruled at the conclusion of the suppression hearing that the
answers to the medical rule-out questions 'would have no
probative value, no inculpatory or exculpatory value' in the
trial[,] . . . in essence, the district court granted the
defense's motion to suppress as to the medical rule-out
questions[.]").8 However, the district court did not err by
denying suppression of Lee's agreement to participate in the SFST
and statements that he understood the SFST instructions and had
no questions, Uchima, 147 Hawai#i at 84, 464 P.3d at 872, or
Officer Carr's observations of Lee's performance on the walk-and-
turn and one-leg stand tests, id. at 84-85, 464 P.3d at 872-73.
7
A person who "operates any vehicle . . . recklessly in disregard
of the safety of persons or property is guilty of reckless driving." HRS
§ 291-2 (2007).
8
The State does not argue that admission of Lee's answers to the
medical rule-out questions, even if erroneous, was harmless beyond a
reasonable doubt.
6
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2. Tachibana colloquy.
We need not decide Lee's second point of error —
whether the district court failed to conduct a proper Tachibana
colloquy — because we are vacating the Judgment and remanding for
a new trial.
3. Substantial evidence
supported Lee's conviction.
"The double jeopardy clause of article I, section 10 of
the Hawai#i Constitution requires a[n] appellate court to address
a defendant's express claim of insufficiency of the evidence
prior to remanding for a new trial based on trial error." State
v. Sheffield, 146 Hawai#i 49, 61, 456 P.3d 122, 134 (2020)
(citation omitted). When reviewing the sufficiency of evidence
on appeal, we apply the following deferential standard of review:
[E]vidence adduced in the trial court must be
considered in the strongest light for the prosecution
when the appellate court passes on the legal
sufficiency of such evidence to support a conviction;
the same standard applies whether the case was before
a judge or jury. The test on appeal is not whether
guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citation omitted). "'Substantial evidence' . . . is credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. (citation omitted). We hold that the admissible testimony
from Officer Carr, when viewed in the light most favorable to the
State, was sufficient to support Lee's OVUII conviction.
4. The district court was not required
to colloquy Lee about his stipulation
to Officer Carr's qualifications.
Lee contends the district court erred by failing to
engage him in a colloquy before accepting the parties' stipula-
tion, during the hearing on Lee's motion to suppress and during
trial, that Officer Carr (1) was trained by HPD, in conformance
with National Highway Traffic Safety Administration requirements,
7
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to administer and evaluate the SFST, including the Horizontal
Gaze Nystagmus test, the Walk-and-Turn test, and One-Leg Stand
test; and (2) would not testify about any nystagmus or "any pass
or fail," but would testify about "what he was trained to look
for" when administering the SFST and his observations of Lee's
performance. The district court was not required to engage Lee
in a colloquy to determine whether he approved the stipulation.
State v. Wilson, 144 Hawai#i 454, 464-65, 445 P.3d 35, 45-46
(2019) (holding that a colloquy was not required where the
defendant's attorney stipulated to a police officer's
qualifications to conduct an SFST).
For the foregoing reasons, we vacate the "Notice of
Entry of Judgment and/or Order and Plea/Judgment[,]" entered on
July 25, 2018, and the "Notice of Entry of Judgment and/or Order
and Plea/Judgment[,]" entered on September 21, 2018, and remand
this case to the district court for a new trial.
DATED: Honolulu, Hawai#i, October 30, 2020.
On the briefs:
Stephen K. Tsushima, /s/ Lisa M. Ginoza
for Plaintiff-Appellee. Chief Judge
Alen M. Kaneshiro, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
8