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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-AUG-2021
08:03 AM
Dkt. 66 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
LIANG LIANG CHEN, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-18-03214)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Liang Liang Chen (Chen) appeals
from the Notice of Entry of Judgment and/or Order and
Plea/Judgment (Judgment), entered on February 21, 2019, in the
District Court of the First Circuit, Honolulu Division (District
Court).1/ Following a bench trial, Chen 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. 2017).2/
1/
The Honorable Florence T. Nakakuni presided.
2/
HRS § 291E-61(a)(1) states:
(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[.]
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On appeal, Chen contends that the District Court: (1)
plainly erred in consolidating the hearing on Chen's motions to
suppress evidence with the trial on the merits; (2) erred in
failing to obtain a voluntary and knowing waiver of Chen's
constitutional right to cross-examine the officer who
administered a standardized field sobriety test (SFST) to Chen;
and (3) erred in admitting improper evidence.
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 vacate the
Judgment and remand for a new trial.
(1) Chen argues that the District Court plainly erred
in consolidating the hearing on Chen's motions to suppress
evidence with the trial without: (A) Chen's knowing and
voluntary waiver of his constitutional right to testify in the
hearing on the motions to suppress; and (B) Chen being fully
advised that his testimony at the suppression hearing could not
be used to prove his guilt.
In State v. Chang, 144 Hawai#i 535, 445 P.3d 116
(2019), the defendant's suppression hearing was similarly
consolidated with trial. Id. at 537, 445 P.3d at 118. The
Hawai#i Supreme Court stated that because "[the defendant] had
the right to testify for the purpose of his motion to suppress
without having that testimony used against him at trial[,] [i]t
was essential that [the defendant] be informed of those rights in
order to ensure that [the defendant's] decision whether to
testify at the suppression hearing was knowingly and
intelligently made." Id. at 545, 445 P.3d at 126; see State v.
Alkire, 148 Hawai#i 73, 78 n.2, 468 P.3d 87, 92 n.2 (2020)
(construing Chang). The court ruled that under the totality of
the circumstances, the trial court erred in conducting its pre-
trial advisements regarding those rights, such that the court
could not conclude that the defendant knowingly, intelligently
and voluntarily waived his right to testify for purposes of the
suppression hearing.3/ Chang, 144 Hawai#i at 545, 445 P.3d at 126.
3/
Overruling State v. Texeira, 62 Haw. 44, 609 P.2d 131 (1980), the
supreme court also prospectively held that trial courts could no longer
continued . . .
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Here, the District Court engaged in pre-trial and
ultimate colloquies with Chen regarding his right to testify at
trial, but neither colloquy addressed Chen's separate right to
testify in the hearing on his motions to suppress. The District
Court thus failed to advise Chen that he could testify for the
purpose of his motions to suppress without having that testimony
used against him at trial. Indeed, the State agrees that the
District Court erred in this regard. In short, the District
Court did not inform Chen of "the separate right to testify at
the suppression hearing and the right to testify at trial[.]"
Chang, 144 Hawai#i at 553, 445 P.3d at 134. On this record, we
cannot conclude that Chen knowingly, intelligently, and
voluntarily waived his right to testify for purposes of the
suppression hearing. See id. at 545, 445 P.3d at 126; see also
id. at 554, 445 P.3d at 135 (the trial court's "failure to
properly inform [the defendant] of his separate and distinct
rights to testify[] render[ed the defendant's] subsequent waiver
of these rights invalid"). Accordingly, we must vacate the
Judgment on this ground and remand for a new trial. See id. at
537, 445 P.3d at 118.
(2) Chen contends that the District Court erred in
failing to obtain a voluntary and knowing waiver of Chen's
constitutional right to cross-examine Honolulu Police Department
Officer Franchot Termeteet (Officer Termeteet), who administered
the SFST to Chen on the night of the incident. Specifically,
Chen argues that the District Court failed: (A) to conduct a
colloquy with Chen regarding the parties' stipulation as to
Officer Termeteet's training to administer and evaluate the SFST;
and (B) to obtain a valid waiver from Chen of his right to cross-
examine Officer Termeteet on these subjects.
The Hawai#i Supreme Court rejected a similar argument
in State v. Wilson, 144 Hawai#i 454, 445 P.3d 35 (2019). There,
. . . continued
consolidate a motion to suppress hearing with a trial. Chang, 144 Hawai #i at
546, 445 P.3d at 127; see id. at 556, 445 P.3d at 137 ("This requirement will
be effective in trials beginning after the filing date of this opinion[,]"
i.e., June 28, 2019). Because Chen's trial began on February 4, 2019, the
prospective rule announced in Chang does not apply.
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the court held that a colloquy was not required where the
defendant's attorney stipulated to a police officer's
qualifications to conduct the SFST:
[T]he stipulation in this case did not establish facts
satisfying any elements of the charged offense. To convict
[the defendant] of OVUII, the State was required to prove
that she operated a vehicle "while under the influence of
alcohol in an amount sufficient to impair her normal mental
faculties or ability to care for herself and guard against
casualty." HRS § 291E-61(a)(1). Stipulating that the
officer was "qualified and certified to conduct the SFST and
that he received specialized training in administering and
grading all of the SFSTs" is not in itself proof that [the
defendant] was operating a vehicle or that she was impaired.
Thus, the stipulation in this case did not amount to a
waiver of [the defendant's] fundamental right to have every
element of a charged offense proven beyond a reasonable
doubt.
Neither did the stipulation significantly impinge on
[the defendant's] confrontation rights. Unlike the
evidentiary stipulation at issue in [State v. ]Casey[, 51
Haw. 99, 451 P.2d 806 (1969)], the stipulation in this case
did not serve as a substitute for evidence from which a
factfinder could conclude that any element of the charged
offenses was satisfied in whole or in part. Instead, this
stipulation was to an evidentiary foundation involving the
qualifications of a witness. Under the circumstances, we
cannot say that the stipulation so infringed upon [the
defendant's] right to confront [the officer] that a colloquy
was required.
Id. at 464-65, 445 P.3d at 45-46 (footnote and original brackets
omitted).
Here, as in Wilson, the stipulation at issue did not
establish facts satisfying any elements of the charged OVUII
offense, and did not serve as a substitute for evidence from
which the court as factfinder could conclude that any element of
the charged offense was satisfied in whole or in part. Rather,
the stipulation was to an evidentiary foundation involving the
qualifications of witness Officer Termeteet. Thus, the District
Court was not required to have a colloquy with Chen before
accepting his stipulation as to Officer Termeteet's
qualifications to administer and evaluate the SFST. On this
record, we conclude that the District Court did not err in
accepting the stipulation.
(3) Chen contends that the District Court erred in
admitting hearsay testimony in violation of Rules 401, 402, 403,
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and 802 of the Hawaii Rules of Evidence (HRE), quoted infra.4/
Chen argues that Officer Termeteet's testimony regarding Chen's
statements during the SFST, as translated by a passenger in
Chen's vehicle named Emily who served as an interpreter (Emily or
the interpreter), was "inadmissible hearsay[,] . . . incompetent,
irrelevant, and overwhelmingly prejudicial." In addition, Chen
appears to argue that Officer Termeteet's "testimony of Chen's
conduct that was a result of Emily's statements to Chen" was
inadmissible on the same grounds. Chen also asserts that the
District Court plainly erred in admitting evidence of the
interpreter's demonstration of the SFSTs to Chen, "and relying
upon it for purposes of substantive evidence of Chen's guilt."
We first note that Chen fails to identify the "full
substance of the evidence" that he claims was improperly
admitted, i.e., the specific trial testimony that he claims was
inadmissible on the various grounds he asserts, in violation of
HRAP Rule 28(b)(4)(A). In his third point of error, Chen merely
quotes a hearsay objection, and related discussion with the
court, which Chen raised at trial after Officer Termeteet
testified regarding Chen's responses to the medical rule-out
(MRO) questions that the officer asked before administering the
SFST. Chen also challenges unspecified testimony regarding
Chen's subsequent "conduct," as well as the interpreter's
demonstration of the SFSTs to Chen,5/ arguing that the
demonstration is "irrelevant to any fact of consequence in this
case." We thus infer that Chen's point of error concerns the
admission of Officer Termeteet's testimony regarding (1) Chen's
responses to the MRO questions, (2) Chen's subsequent unspecified
conduct, and (3) the interpreter's demonstration of the SFSTs to
Chen (the challenged testimony).
4/
In ruling on Chen's motions to suppress, the District Court
concluded, among other things, that Miranda warnings were not required in the
circumstance of this case. On appeal, Chen does not challenge the District
Court's ruling in this regard, thereby waiving the issue. See Hawai #i Rules
of Appellate Procedure (HRAP) Rule 28(b)(4), (7).
5/
Officer Termeteet testified that both he and Emily demonstrated
the walk-and-turn and one-leg stand tests to Chen, and that Emily correctly
demonstrated the tests.
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HRE Rules 401 and 402: Relevance
At trial, Chen did not object to any of the challenged
testimony based on relevance under HRE Rules 4016/ and 402.7/
This basis for appeal was therefore waived. See State v.
Gonzalez, 128 Hawai#i 314, 317, 288 P.3d 788, 791 (2012) (noting
that "the failure to properly raise an issue at the trial level
precludes a party from raising that issue on appeal" (quoting
State v. Kikuta, 125 Hawai#i 78, 89, 253 P.3d 639, 650 (2011)));
see HRE Rule 103(a)(1). Further, on appeal, Chen provides no
reasoned argument as to why each element of the challenged
testimony was not relevant to the issue of Chen's alcohol
impairment.8/ Chen similarly fails to provide any argument as to
why the District Court could not consider testimony regarding the
interpreter's demonstration of the SFSTs to Chen for purposes of
determining Chen's guilt. For this additional reason, Chen's
point of error based on HRE Rules 401 and 402 is deemed waived.
See HRAP Rule 28(b)(7).
HRE Rule 403: Unfair Prejudice
Chen did object at trial to admission of his translated
responses to Officer Termeteet's questions based on HRE Rule
6/
HRE Rule 401 states, in relevant part:
"Relevant evidence" means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.
7/
HRE Rule 402 states, in relevant part:
All relevant evidence is admissible, except as
otherwise provided by the Constitutions of the United States
and the State of Hawaii, by statute, by these rules, or by
other rules adopted by the supreme court. Evidence which is
not relevant is not admissible.
8/
Chen argues that the challenged testimony was "irrelevant and
inadmissible" because the evidence "lacked any evidentiary foundation." We
note that Chen did not object at trial to any of the challenged testimony
based on lack of foundation. "[A] 'lack of foundation' objection generally is
insufficient to preserve foundational issues for appeal because such an
objection does not advise the trial court of the problems with the
foundation." State v. Long, 98 Hawai#i 348, 353, 48 P.3d 595, 600 (2002).
Here, there was not even a lack-of-foundation objection to the challenged
testimony; thus, any alleged foundational issues were not conveyed to the
District Court and were thus waived. To the extent that Chen's current lack-
of-foundation argument overlaps with his hearsay argument, that issue is
addressed below.
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403,9/ but he offered no argument at trial — and he provides none
on appeal — as to why the probative value of the statements is
substantially outweighed by the danger of unfair prejudice or any
other factor identified in HRE Rule 403. See HRAP Rule 28(b)(7).
Chen asserts on appeal that the interpreter's demonstration of
the SFST "resulted in unfair prejudice violating Chen's rights to
due process[,]" but he did not raise this objection at trial and
offers no argument on appeal supporting this assertion.
Therefore, Chen's point of error based on HRE Rule 403 is deemed
waived. See Gonzalez, 128 Hawai#i at 317, 288 P.3d at 791; HRAP
Rule 28(b)(7).
HRE Rule 803: Hearsay
Chen did not object at trial to the admission of
Officer Termeteet's testimony regarding Chen's "conduct that was
a result of Emily's statements to Chen." For example, Chen did
not object to the testimony of Officer Termeteet regarding his
observations of Chen's performance on the SFST. In particular,
Chen's hearsay objection, which concerned testimony regarding
Chen's statements in response to the MRO questions (see supra),
was not asserted with respect to, and by definition would not
have applied to, testimony regarding his conduct in performing
the SFST. See HRE Rule 801. This basis for appeal was therefore
waived. See Gonzalez, 128 Hawai#i at 317, 288 P.3d at 791.
Chen did object at trial on hearsay grounds to the
admission of Officer Termeteet's testimony regarding Chen's
responses to the MRO questions, and he has raised and argued that
issue on appeal. Chen contends that his translated statements
constituted inadmissible hearsay, because they were out-of-court
statements offered to prove the truth of the matter asserted, and
9/
HRE Rule 403 states, in relevant part:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
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there was no applicable hearsay exception.10/ However, we need
not address this argument for the reasons explained below.
Sufficiency of the Evidence
Chen summarily asserts at the end of his opening brief
that "without the improper and incompetent evidence," there was
insufficient evidence to support Chen's conviction. Chen does
not include this assertion in his third point of error, which
states in part that "the incompetent evidence must be excluded
. . . and a new trial ordered." As previously noted, Chen also
fails to identify specifically the "incompetent evidence" that is
the subject of his third point of error, in violation of HRAP
28(b)(4)(A). Further, Chen offers no argument to support his
bare assertion that without such evidence, there was insufficient
evidence to support his conviction. We thus deem the point
waived. See HRAP Rule 28(b)(4) and (7). Regardless, based on
the entire record, and viewing the evidence in the light most
favorable to the prosecution, we conclude there was sufficient
evidence to support Chen's conviction based on Officer
Termeteet's testimony regarding Chen's driving pattern and the
physical signs of his alcohol impairment, including his
performance on the SFST. See State v. Grace, 107 Hawai#i 133,
139, 111 P.3d 28, 34 (App. 2005) (quoting State v. Ferrer, 95
Hawai#i 409, 422, 23 P.3d 744, 757 (App. 2001)).
In light of our decision to vacate the Judgment on
other grounds (see supra), and our conclusion that there was
sufficient evidence to support the conviction even without Chen's
translated statements, we need not address Chen's argument that
those statements constituted inadmissible hearsay.
Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, entered on
February 21, 2019, in the District Court of the First Circuit,
Honolulu Division, is vacated. The case is remanded to the
10/
Under HRE Rule 802, "[h]earsay is not admissible except as
provided by these rules, or by other rules prescribed by the Hawaii [S]upreme
[C]ourt, or by statute." "Hearsay" is defined as "a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." HRE Rule 801. The
"'[d]eclarant' is a person who makes [the] statement." Id.
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District Court for a new trial and for further proceedings
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, August 31, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Taryn R. Tomasa, Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Chad M. Kumagai, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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