NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-APR-2021
07:49 AM
Dkt. 60 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
ADAM NATHANAEL, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KANE#OHE DIVISION
(CASE NO. 1DTC-18-007671)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Adam Nathanael (Nathanael) appeals
from the Notice of Entry of Judgment and/or Order and
Plea/Judgment (Judgment), entered on May 2, 2019, in the District
Court of the First Circuit, Kane#ohe Division (District Court).1/
Following a bench trial, Nathanael was convicted of Operating a
Vehicle After License and Privilege Have Been Suspended or
Revoked for Operating a Vehicle Under the Influence of an
Intoxicant (OVLPSR-OVUII), in violation of Hawaii Revised
Statutes (HRS) § 291E-62(a)(1) and (a)(2) (Supp. 2017), and was
sentenced pursuant to HRS § 291E-62(c)(3).2/
1/
The Honorable Florence Nakakuni presided.
2/
HRS § 291E-62 provides, in relevant part:
§ 291E-62 Operating a vehicle after license and
privilege have been suspended or revoked for operating a
vehicle under the influence of an intoxicant; penalties.
(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section or to part III or
section 291E-61 or 291E-61.5, or to part VII or part XIV of
chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
On appeal, Nathanael contends that: (1) the District
Court erred in denying Nathanael's motion to suppress evidence,
because the officer who stopped Nathanael's vehicle lacked
reasonable suspicion to conduct the stop; and (2) the District
Court violated Nathanael's constitutional right to testify when
it failed to conduct an adequate Tachibana3/ colloquy, resulting
in a waiver that was not knowingly and voluntarily provided by
Nathanael. Regarding his first contention, Nathanael argues that
because the traffic stop was unlawful, all evidence derived from
the stop should have been suppressed, resulting in insufficient
evidence to convict him of OVLPSR-OVUII.
The State argues, among other things, that this court
lacks jurisdiction over this appeal, because Nathanael's notice
of appeal was untimely.
291-7 as those provisions were in effect on December 31,
2001, shall operate or assume actual physical control of any
vehicle:
(1) In violation of any restrictions placed on the
person's license;
(2) While the person's license or privilege to
operate a vehicle remains suspended or revoked;
. . . .
(c) Any person convicted of violating this section
shall be sentenced as follows without possibility of
probation or suspension of sentence:
. . . .
(3) For an offense that occurs within five years of
two or more prior convictions for offenses under
this section, section 291E-66, or section
291-4.5 as that section was in effect on
December 31, 2001, or any combination thereof:
(A) One year imprisonment;
(B) A $2,000 fine;
(C) Permanent revocation of the person's
license and privilege to operate a
vehicle; and
(D) Loss of the privilege to operate a vehicle
equipped with an ignition interlock
device, if applicable.
3/
State v. Tachibana, 79 Hawai#i 226, 900 P.2d 1293 (1995).
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As a threshold matter, we conclude that this court has
jurisdiction over this appeal. Following entry of the Judgment
(see supra), on June 4, 2019, Nathanael's counsel stated during a
hearing in Case Nos. 1DTC-18-007671 (i.e., the present case) and
1DTC-XX-XXXXXXX/ that the public defender's (PD) office would be
representing Nathanael in the present appeal, and it was
counsel's understanding that the PD's office "may have" filed a
motion for an extension of time to file the notice of appeal.5/
However, it appears that no such motion was filed, and there was
no order entered by the District Court granting an extension of
time to file the notice of appeal, pursuant to Hawai#i Rules of
Appellate Procedure (HRAP) Rule 4(b)(5). Rather, a notice of
appeal initiating the present appeal was filed on July 1, 2019,
more than 30 days after entry of the May 2, 2019 Judgment. The
notice of appeal was therefore untimely. See HRAP Rule 4(b)(1).
"In criminal cases, [the Hawai#i Supreme Court] ha[s]
made exceptions to the requirement that notices of appeal be
timely filed[,]" including "circumstances where . . . defense
counsel has inexcusably or ineffectively failed to pursue a
defendant's appeal from a criminal conviction in the first
instance[.]" State v. Irvine, 88 Hawai#i 404, 407, 967 P.2d 236,
239 (1998). Here, it appears that Nathanael's failure to file a
timely notice of appeal was due to ineffective assistance of
counsel. Therefore, the court will exercise jurisdiction over
this appeal.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Nathanael's contentions as follows.
4/
Nathanael is also a defendant in Case No. 1DTC-18-071132, which is
currently pending as a separate appeal before this court in No. CAAP-19-
0000851.
5/
The transcript of the June 4, 2019 hearing is not part of the
record in this appeal. Nevertheless, this court takes judicial notice of the
June 4, 2019 hearing transcript filed in CAAP-XX-XXXXXXX. See State v. Akana,
68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) (explaining that "[t]he most
frequent use of judicial notice of ascertainable facts is in noticing the
content of court records. This court has validated the practice of taking
judicial notice of a court's own records in an interrelated proceeding where
the parties are the same." (citation omitted)).
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(1) Nathanael argues that the District Court erred in
denying Nathanael's motion to suppress evidence, because Honolulu
Police Department Officer Kaimi Kellett (Officer Kellett), who
cited Nathanael "[f]or driving while license revoked and no
insurance[,]" lacked reasonable suspicion to stop Nathanael.6/
In order to determine whether a person can be lawfully
seized without first obtaining a warrant, we apply the following
two-part test:
First, we determine whether the person was "seized"
within the meaning of the United States and Hawai #i
Constitutions. Second, if the person was seized, we
determine whether the seizure was lawful, i.e., whether the
police could have temporarily detained the individual
because "they have a reasonable suspicion based on specific
and articulable facts that criminal activity is afoot."
[State v. ]Tominiko, 126 Hawai#i [68,] 77, 266 P.3d [1122,]
1131[ (2011)]. If the seizure was not supported by
reasonable suspicion, the seizure was unlawful, and any
evidence obtained as a result of the initial seizure is
inadmissible at trial.
State v. Weldon, 144 Hawai#i 522, 531, 445 P.3d 103, 112 (2019).
Thus, we must first determine whether Nathanael was
"seized" within the meaning of article I, section 7 of the
Hawai#i Constitution. The supreme court has stated:
A person is seized if, given the totality of the
circumstances, a reasonable person would have believed
that he or she was not free to leave. Whether a
reasonable person would feel free to leave is
determined under an objective standard that this court
reviews de novo. A person is seized for purposes of
article I, section 7 of the Hawai#i Constitution, when
a police officer approaches that person for the
express or implied purpose of investigating him or her
for possible criminal violations and begins to ask for
information.
Id. at 531-32, 445 P.3d at 112-13 (quoting Tominiko, 126 Hawai#i
at 77, 266 P.3d at 1131).
Here, Nathanael argues that he was seized when Officer
Kellett stopped him for speeding at around 12:40 a.m. on August
29, 2018, and requested his personal information. The State does
6/
Hawai#i Rules of Penal Procedure (HRPP) Rule 12(b)(3) requires that
a motion to suppress evidence be raised prior to trial. The failure to do so
"shall constitute waiver thereof[.]" HRPP Rule 12(f). However, if a trial
court entertains and rules on the motion to suppress at trial, the issue is
properly before the appellate court. See State v. Hewitt, 149 Hawai #i 71, 76,
481 P.3d 713, 718 (App. 2021); State v. Przeradski, 5 Haw. App. 29, 32, 677
P.2d 471, 474 (1984). Here, the District Court heard argument on and denied
Nathanael's oral motion to suppress at trial. Nathanael's first point of
error is thus properly before us.
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not appear to dispute this assertion. We conclude that, given
the totality of the circumstances, a reasonable person in
Nathanael's position would not have felt free to ignore Officer
Kellett's inquiries and leave the scene. Thus, Nathanael was
seized pursuant to article I, section 7 of the Hawai#i
Constitution.
"Generally, a seizure without a warrant is presumed
invalid unless the State proves that the seizure falls within an
exception to the warrant requirement of article I, section 7 of
the Hawai#i Constitution." Id. at 532-33, 445 P.3d at 113-14
(citing State v. Heapy, 113 Hawai#i 283, 290, 151 P.3d 764, 771
(2007)). "One such exception is a temporary investigative stop
[in which] an officer has 'reasonable suspicion' that the person
stopped was engaged in criminal conduct." Id. at 533, 445 P.3d
at 114 (citing State v. Kearns, 75 Haw. 558, 569, 867 P.2d 903,
908 (1994)).
To justify an investigative stop, short of an arrest based
on probable cause, the police officer must be able to point
to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant
that intrusion. The ultimate test in these situations must
be whether from these facts, measured by an objective
standard, a person of reasonable caution would be warranted
in believing that criminal activity was afoot and that the
action taken was appropriate.
Id. (brackets omitted) (quoting Tominiko, 126 Hawai#i at 77-78,
266 P.3d at 1131-32). The supreme court has also stated that
"officers must have a 'particularized and objective' basis for
suspecting that the person seized has committed or is about to
commit a crime." Id. (quoting Tominiko, 126 Hawai#i at 78, 266
P.3d at 1132). "In other words, reasonable suspicion must be
based on 'a suspicion that the particular individual being
stopped is engaged in wrongdoing.'" Id. (quoting State v.
Uddipa, 3 Haw. App. 415, 418, 651 P.2d 507, 510 (1982)); see also
Heapy, 113 Hawai#i at 292, 151 P.3d at 773 ("The totality of the
circumstances, measured by an objective standard, must indicate
that criminal activity is afoot." (emphasis omitted)).
Here, at trial, the State did not elicit specific and
articulable facts from which a person of reasonable caution would
be warranted in believing that criminal activity was afoot and
that stopping Nathanael for speeding was appropriate. Officer
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Kellett testified that on August 29, 2018, he first observed
Nathanael at the intersection of Kailua Road and Kalanianaole
Highway, while Officer Kellett was in his marked blue and white
patrol vehicle. Nathanael was in the left lane, Officer Kellett
was in the right lane, and they both turned left in front of
Castle Hospital to head toward Pali Highway. According to
Officer Kellett, the speed limit was 35 miles per hour before the
turn and 45 miles per hour after the turn. Officer Kellett
testified that "right after [making] the turn," Nathanael
"started speeding up, at a I guess higher rate of speed than I
was." Officer Kellett further described Nathanael's speed after
the turn as "a lot higher than I guess normal, I would usually go
I guess." Officer Kellett also paced Nathanael's vehicle before
stopping him. However, Officer Kellett did not state the speed
at which he was traveling when Nathanael was accelerating or
while pacing Nathanael. In addition, Officer Kellett did not
recall any other vehicles on the road, i.e., for the purpose of
comparing Nathanael's relative speed. Nor did Officer Kellett
provide admissible testimony that he suspected or believed
Nathanael's vehicle exceeded the speed limit.7/ When asked, "Did
you receive any training on how to identify with your eye as to
how fast the vehicle was traveling?" Officer Kellett responded,
"No, just from observing, I mean, from driving the past 18 years
I guess."
These are not "specific and articulable facts" from
which a person of reasonable caution could infer that Nathanael
was driving at a speed exceeding the posted speed limit. In sum,
the totality of the circumstances, measured by an objective
standard, does not indicate that criminal activity was afoot and
that stopping Nathanael for speeding was appropriate. On this
record, we thus conclude that Officer Kellett lacked reasonable
suspicion to stop Nathanael.
7/
Officer Kellett testified at one point how fast he thought Nathanael
was going, but the District Court sustained a defense objection to that
testimony based on lack of foundation. The State did not further question
Officer Kellett to establish his belief that Nathanael had exceeded the speed
limit.
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The court "prohibit[s] the use of evidence at trial
that comes to light as a result of the exploitation of a previous
illegal act of the police." Weldon, 144 Hawai#i at 534, 445 P.3d
at 115 (citing Tominiko, 126 Hawai#i at 81, 266 P.3d at 1135).
In determining whether evidence is tainted by such an act, the
Hawai#i Supreme Court follows the standard set out in Wong Sun v.
United States, 371 U.S. 471 (1963): "admissibility is determined
by ascertaining whether the evidence objected to as being the
'fruit' was discovered or became known by the exploitation of the
prior illegality or by other means sufficiently distinguished as
to purge the later evidence of the initial taint." Weldon, 144
Hawai#i at 534, 445 P.3d at 115 (brackets omitted) (quoting
Tominiko, 126 Hawai#i at 81, 266 P.3d at 1135). In other words,
the court asks, "disregarding the prior illegality, would the
police nevertheless have discovered the evidence?" Id. (brackets
omitted) (quoting State v. Trinque, 140 Hawai#i 269, 281, 400
P.3d 470, 482 (2017)).
Here, the State failed to establish that Officer
Kellett had a reasonable suspicion that Nathanael was speeding
when Nathanael's vehicle was stopped. See supra. Therefore, the
officer's subsequent identification of Nathanael as the operator
of the vehicle stemmed from his unlawful seizure.8/ The State
makes no argument that absent the unlawful seizure, it would have
discovered this evidence. Without Officer Kellett's
identification of Nathanael as the operator of the vehicle, there
was no evidence that Nathanael operated or assumed actual
physical control of a vehicle, an element that had to be proven
to convict him of OVLPSR-OVUII. See State v. Wallace, 80 Hawai#i
382, 414 n.30, 910 P.2d 695, 727 n.30 (1996) (sufficiency of the
evidence "is reviewed based only on the evidence that was
properly admitted at trial" (quoting State v. Malufau, 80 Hawai#i
126, 132, 906 P.2d 612, 618 (1995))). Accordingly, we conclude
there was insufficient evidence to convict Nathanael of OVLPSR-
OVUII.
8/
At trial, Officer Kellett testified that he identified Nathanael
after stopping him and obtaining his name, date of birth, and last four digits
of his Social Security number, which Officer Kellett then checked against a
database, which in turn revealed a match.
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Given our conclusion, we do not reach Nathanael's
second point of error.
Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, entered on
May 2, 2019, in the District Court of the First Circuit, Kane#ohe
Division, is reversed.
DATED: Honolulu, Hawai#i, April 20, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Megan McDonald, Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Sonja P. McCullen, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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