NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JUN-2023
08:02 AM
Dkt. 54 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
BRYENT K.M. KANESHIRO, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-18-00712)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Bryent K.M. Kaneshiro (Kaneshiro)
appeals from the (1) October 4, 2019 "Notice of Entry of Judgment
and/or Order and Plea/Judgment," (2) October 4, 2019 "Amended
Notice of Entry of Judgment and/or Order and Plea/Judgment," and
(3) September 11, 2020 "Notice of Entry of Judgment and/or Order
and Plea/Judgment," all entered by the District Court of the
First Circuit1 (District Court), convicting him of Operating a
Vehicle Under the Influence of an Intoxicant (OVUII), in
violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).2
1
The Honorable Randal I. Shintani presided over the suppression
hearing. The Honorable Philip M. Doi presided over trial and entered the
October 4, 2019 judgment and amended judgment. The Honorable Alvin K.
Nishimura entered the September 11, 2020 judgment.
2
HRS § 291E-61(a)(1) (2020) provides:
(continued...)
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Kaneshiro raises three points of error on appeal,3
contending that: (1) the "case must be dismissed pursuant to
State v. Thompson where the complaint did not meet the
requirements of HRS § 805-1";4 (2) the District Court erred in
"denying [Kaneshiro]'s motion to suppress his responses to the
[medical rule-out (MRO)] questions and all evidence and
statements that followed as the 'fruit of the poisonous tree'";5
and (3) Kaneshiro "did not knowingly, intelligently and
voluntarily waive his right to testify for purposes of the
suppression motion."
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve
Kaneshiro's points of error as follows, and vacate and remand for
a new trial.
2
(...continued)
(a) A person commits the offense of [OVUII] 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
We have reordered Kaneshiro's points of error for clarity.
4
This point of error was raised in Kaneshiro's Supplemental Brief
filed May 12, 2022. The Plaintiff-Appellee State of Hawai#i (State) also
filed a Supplemental Brief on May 13, 2022. Kaneshiro was allowed to file the
Supplemental Brief to address the Complaint in this case in light of State v.
Thompson, 150 Hawai#i 262, 267-69, 500 P.3d 447, 452-54 (2021), in which the
Hawai#i Supreme Court held that failure to comply with HRS § 805-1 renders a
complaint "fatally defective," and that such a complaint cannot be used to
support the issuance of an arrest warrant or penal summons.
5
Kaneshiro does not specify in this point of error what the
"evidence and statements that followed" the MRO responses were, in violation
of Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(A) (requiring
each point to include "the full substance of the evidence admitted" when the
point involves the admission of evidence).
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(1) Kaneshiro argues that the Complaint was defective
under HRS § 805-16 because no witness with direct observations of
Kaneshiro's misconduct "subscribed to" or "submitted a
declaration in support of the [C]omplaint." Rather, the
Complaint was signed by the prosecuting attorney. Whether the
Complaint complied with applicable statute and/or rule is a
question of law we review de novo. Thompson, 150 Hawai#i at 266,
500 P.3d at 451.
The Hawai#i Supreme Court recently held, in State v.
Mortensen-Young, 152 Hawai#i 385, 397, 526 P.3d 362, 374 (2023),
that HRS § 805-1 applies only to criminal complaints used to
obtain a penal summons or arrest warrant. In other cases, such
as the OVUII prosecutions at issue in Mortensen-Young, Hawai#i
Rules of Penal Procedure (HRPP) Rule 77 provides the proper
framework to analyze the sufficiency of complaints. Id. at 399,
526 P.3d at 376. In Mortensen-Young, the supreme court held that
the appellees were properly charged by complaint, signed by the
prosecutor, for the offense of OVUII pursuant to HRPP Rule 7(d),
6
HRS § 805-1 (2014) states, in pertinent part:
§ 805-1. Complaint; form of warrant. When a complaint
is made to any prosecuting officer of the commission of any
offense, the prosecuting officer shall examine the
complainant, shall reduce the substance of the complaint to
writing, and shall cause the complaint to be subscribed by
the complainant under oath, which the prosecuting officer is
hereby authorized to administer, or the complaint shall be
made by declaration in accordance with the rules of
court. . . .
7
HRPP Rule 7 states, in pertinent part:
Rule 7. INDICTMENT, INFORMATION, OR COMPLAINT.
. . . .
(d) Nature and contents. The charge shall be a plain,
concise and definite statement of the essential facts
constituting the offense charged . . . . A complaint shall
be signed by the prosecutor. The charge need not contain a
formal conclusion or any other matter not necessary to such
statement . . . . The charge shall state for each count the
official or customary citation of the statute, rule,
regulation or other provision of law which the defendant is
alleged therein to have violated.
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which does not require that a "'charging instrument in a
misdemeanor case be signed by anyone other than a prosecutor'" or
"'subscribed under oath or made by declaration in lieu of an
affidavit by anyone.'" Id.
Here, as in Mortenson-Young, HRS § 805-1 is
inapplicable because the Complaint was not used to obtain a penal
summons or arrest warrant. The Complaint set forth a concise and
definite statement of the essential facts, was signed by the
prosecutor, and referenced the statute that Kaneshiro allegedly
violated, as required by HRPP Rule 7(d). Thus, the Complaint was
sufficient to initiate the subject prosecution. See id. at 392,
P.3d at 369; Thompson, 150 Hawai#i at 266-67, 500 P.3d at 451-52.
(2) Kaneshiro argues that because he was never advised
of his Miranda8 rights when he was pulled over, his responses to
the MRO questions were the product of custodial interrogation,
and the District Court should have suppressed "any statement and
evidence obtained subsequent to the MRO questions as the 'fruit
of the poisonous tree.'"
Questions of constitutional law, such as the District
Court's ruling on the motion to suppress, are reviewed "de novo
to determine whether the ruling was 'right' or 'wrong.'" State
v. Manion, 151 Hawai#i 267, 271-72, 511 P.3d 766, 770-71 (2022)
(quoting State v. Lee, 149 Hawai#i 45, 49, 481 P.3d 52, 56
(2021)).
Suppression hearing
Kaneshiro's Motion to Suppress Statements (Motion
to Suppress) requested suppression of the following:
1. Any statements made by [Kaneshiro] to Honolulu
Police Department [HPD] Officer or other
governmental personnel.
2. Any and all evidence seized or information gained
by the [HPD] after [Kaneshiro] was placed under
arrest, was not read his/her Miranda rights or was
instructed that he/she did not have a right to
have an attorney.
8
Miranda v. Arizona, 384 U.S. 436 (1966).
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Kaneshiro principally argued what is the subject matter of the
instant appeal –- that he was in custody and subject to
interrogation in violation of his Miranda rights when he was
stopped by HPD Officer Arthur Gazelle (Officer Gazelle). At the
November 7, 2018 hearing on Kaneshiro's Motion to Suppress,
Officer Gazelle testified that he stopped Kaneshiro after
observing Kaneshiro "traveling faster than the posted speed
limit" on the highway; crossing over a "solid yellow line"; and
failing to use turn signals. As Officer Gazelle activated his
sirens, Kaneshiro eventually pulled over at a "very narrow"
shoulder lane, where Officer Gazelle instructed Kaneshiro to take
the off-ramp and "pull into the parking lot" of an elementary
school. Kaneshiro began to slowly drive off the highway to the
off-ramp, where he stopped on the side of the road rather than in
the parking lot of the elementary school. Upon approaching
Kaneshiro's vehicle, Officer Gazelle noticed a "strong odor of
alcohol on [Kaneshiro's] breath" and that he had "red and glassy"
eyes. Kaneshiro's speech was "sluggish" and "slightly slurred."
Officer Gazelle asked Kaneshiro to exit his vehicle for a
standard field sobriety test (SFST), to which Kaneshiro agreed.
Prior to the SFST, Officer Gazelle asked Kaneshiro
MRO questions, including whether Kaneshiro had "any physical
defect or speech impediment"; was "taking any medication"; had "a
doctor or an eye doctor"; was "under the care of a dentist"; had
"an artifical or glass eye"; and was "diabetic or epileptic." In
response to whether he had any speech impediment or an artificial
or glass eye, Kaneshiro stated that he "mumbles sometimes" and
has glasses.
Officer Gazelle administered the SFST and determined
that Kaneshiro was unable to safely operate his vehicle.
Kaneshiro was placed under arrest and charged with OVUII and
excessive speeding.
The District Court denied the Motion to Suppress,
ruling as follows:
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It is -- in this case, there is an excessive
[(speeding)] count as well as the OVUII. Court finds it was
an ongoing investigation. There was no express statement by
Officer Gazelle, I believe, that Mr. Kaneshiro -- Mr. Bryent
Kaneshiro was under arrest for the excessive speeding. So
at that -- there was no express decision that he was in
custody. At that point, it was an ongoing investigation on
the OVUII.
And the other arguments, [Defense Counsel], in your
memorandum, the state of the appellate decisions right now
regarding the rule-out and regarding the consent to exit, as
long as there's consent, there's nothing that has been
indicated otherwise, his willingness to exit the car at this
point. So based on the evidence thus presented, appellate
decisions, court's again denying your motion to suppress.
Bench trial
On July 26 and October 4, 2019, a bench trial was held.
At trial, Officer Gazelle testified that he observed Kaneshiro
speeding, drifting over a yellow lane marking, crossing over into
another lane, and suddenly braking and slowing down. Officer
Gazelle testified that when he initiated the stop, Kaneshiro
failed to pull over at the next safest area, and proceeded to
stop in a shoulder lane, "[p]artially blocking [an] active
lane[.]" Officer Gazelle instructed Kaneshiro to take the next
off-ramp and pull into a parking lot of an elementary school,
upon which Kaneshiro proceeded to travel at about "10 to 15 miles
an hour" off the freeway, where he eventually came to a stop on
the side of a road. Upon approach, Officer Gazelle "smelled a
strong odor of alcoholic-type beverage" "emitting from
[Kaneshiro's] breath," and noticed that his speech was
"sluggish." Officer Gazelle asked Kaneshiro if he would be
willing to participate in a SFST, and Kaneshiro agreed.
Officer Gazelle testified that he asked Kaneshiro the
MRO questions, to which Kaneshiro "mentioned that he mumbles and
that he wears prescription glasses." Officer Gazelle also
testified that in response to whether Kaneshiro had a glass eye,
it was "odd" that Kaneshiro stated that he wore "glasses," and
that based on his observations, "there was nothing that
interfered" with Kaneshiro's "ability to perform the [SFST]."
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Officer Gazelle could not remember any observations he
made during the SFST and had to refresh his recollection by
reviewing a SFST form that he had filled out on the date of the
incident. Officer Gazelle then testified that he arrested
Kaneshiro for OVUII and excessive speeding based on how Kaneshiro
was "driving," "speaking," "smelt [sic]," "looked," "acting,"
"performed his [SFST]," and his "preliminary alcohol screening"
result.9 Officer Gazelle testified that in his opinion,
Kaneshiro was "drunk," "impaired," and not driving or able to
drive "safely."10 However, Kaneshiro's driving, by itself, did
9
Kaneshiro's preliminary alcohol screening result was not admitted
into evidence.
10
Over defense objection, Officer Gazelle testified that Kaneshiro
was "drunk" and "impaired" as follows:
Q. [(By Prosecutor)] In your opinion, was he
drunk?
A. [(By Officer Gazelle)] Yes. Not falling down
piss drunk, but he was drunk.
Q. And, in your opinion, was it safe for
[Kaneshiro] to operate his vehicle?
A. No, he wasn't operating his vehicle safely
from what I observed.
. . . .
A. I don't have a present recollection of
anything on the standardized field sobriety test.
Q. Okay. All of it is coming from your report?
A. Correct. I have present recollection of the
driving and how he's acting. All the other stuff we
testified to, I definitely remember all of that.
. . . .
Q. You refreshed your recollection with your
report, but based on your recollection apart from
your report, do you still hold the opinion that the
defendant was drunk on the night you pulled him over?
A. Yes, I believe he was impaired, and I
believe that he did exhibit that he wasn't driving
safely. I watched him not drive safely.
(continued...)
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not give Officer Gazelle the impression that Kaneshiro was
"impaired" or under the influence.11
Kaneshiro made a motion for judgment of acquittal,
which the District Court granted for the excessive speeding
charge, but denied for the OVUII charge. Kaneshiro then made a
"motion to strike the totality" of Officer Gazelle's testimony
regarding Kaneshiro's performance on the SFST, because the
officer had "no present recollection" of the SFST.12 The
District Court granted Kaneshiro's motion to strike the SFST.
Kaneshiro then moved to strike Officer Gazelle's testimony
regarding his opinion on whether Kaneshiro was "drunk" or
"impaired," because this was "in part based on the results of the
SFST." The District Court denied this motion because Officer
Gazelle testified he "remember[ed] everything else" except for
10
(...continued)
(Emphases added).
11
Officer Gazelle testified as follows:
Q. [(By Defense Counsel)] And the speeding
didn't give you the impression that he was under the
influence, correct?
A. [(By Officer Gazelle)] In and of itself?
Q. Correct.
A. No.
Q. And even the crossing over the lane lines
didn't give you the impression that he was under the
influence, correct?
A. Are you going to break up every little
observation in and of itself?
Q. Just talking about the driving.
A. Oh, okay. No.
12
Kaneshiro's counsel stated: "Your Honor, I would be also making a
motion to strike the totality of the standardized field sobriety test. As
Officer Gazelle testified, he has no present recollection about the SFST, and
his testimony is purely based on basically reading his reports[.]"
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the "particulars" of the SFST.13 Kaneshiro did not testify, but
called a witness who was in Kaneshiro's vehicle at that time.
The witness testified that they had just left a barbeque, that
they "were confused" about where to pull over, and that she did
not recall Kaneshiro drinking prior to him driving.
During closing argument, the State acknowledged that
the case depended on Kaneshiro's driving and Officer Gazelle's
"opinion as to intoxication," which was partly "based on the
administration of the [SFST]."14 Kaneshiro argued that although
13
The District Court denied Kaneshiro's motion to strike Officer
Gazelle's opinion testimony as follows:
[DEFENSE COUNSEL]: . . . And I also think that
his opinions based on Mr. Kaneshiro either being drunk
or intoxicated or impaired, or whatever he said,
should also be stricken because that was based on the
standardized field sobriety test results --
. . . .
[DEFENSE COUNSEL]: When Officer Gazelle
testified about, you know, why he arrested Mr.
Kaneshiro for operating a vehicle under the influence
and whether he had a lay opinion on whether he was
intoxicated, Officer Gazelle testified that it was in
part based on the results of the SFST, and if that is
stricken, then his opinion should be stricken as well
if he has no present recollection of it.
. . . .
THE COURT: The -- he's saying that today,
in court, he has no present recollection of the
particulars of the field sobriety test that he --
about which he was asked and -- and -- and -- and
responded, that his responses were due solely to the
report, but he said I remember everything else. And
the opinion that he stated when questioned was based
on a decision he made, I forget when it was, but
sometime ago, and that decision was based on the --
the knowledge he had on that same evening from within
the previous probably five minutes, maybe ten minutes,
so --
[DEFENSE COUNSEL]: Okay. Thank you.
THE COURT: -- I'm denying that.
14
The State stated the following:
(continued...)
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Officer Gazelle noted Kaneshiro's driving, there is "driving like
this involving no alcohol[,]" and that Officer Gazelle testified
that "the driving alone was not an indicator . . . that Mr.
Kaneshiro was intoxicated." Additionally, Kaneshiro argued that
because Officer Gazelle's testimony regarding Kaneshiro being
intoxicated was in part based on the stricken SFST, the District
Court should not give much weight to the testimony.15
14
(...continued)
In this case, as with all OVUII cases, or most,
we're looking at a couple of things. We're looking at
driving, we're looking at indicia, and we're looking
at the officer's opinion as to the intoxication, and
that's based on the administration of the field
sobriety test.
. . . .
But the officer did recall administering a
complete SFST, and based on the SFST, the officer's
observations of driving, in particular the hazardous
driving, and the totality of the circumstances, the
officer believed [Kaneshiro] to be both drunk and
impaired and subject to arrest for OVUII.
15
Kaneshiro argued that:
He -- Officer Gazelle testified that Mr.
Kaneshiro told him that he mumbled. Mumble and
slur, he didn't say slur, he said sluggish, mumble
and sluggish. He was never asked could you explain
the difference between a mumble and -- and
sluggish? That could explain the speech.
Officer Gazelle testified about the odor of
alcohol and what it can tell him and what it can't
tell him. He had no difficulty exiting the vehicle.
And there is no field sobriety test. Officer's
opinion as to whether somebody is drunk as a lay
testify -- person testifying has very little
weight, and should have very little weight,
especially since he's basing some of it on the
observations on the standardized field sobriety
test. So this court shouldn't give much weight, if
any, to Officer Gazelle's testimony that Mr.
Kaneshiro was drunk or intoxicated, and -- and,
besides that, being drunk and intoxicated is not
the standard that the State has to prove. They have
to prove impair -- impairment. So neither of those
opinions go to impairment.
The bottom line is in this particular case,
the State has not proven beyond a reasonable doubt
all of these things that the State points to. It
(continued...)
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Kaneshiro was found guilty of OVUII.16 This appeal
followed.
Kaneshiro's responses to the MRO questions should have
been suppressed.
Kaneshiro argues that when he was pulled over by
Officer Gazelle, he was in "custody" because Officer Gazelle had
probable cause to arrest Kaneshiro for excessive speeding, and he
was not free to leave. Kaneshiro contends that the MRO questions
15
(...continued)
says it could be because of this, it could be
because of that. It could also be because people
simply drive fast, people dis-- cross over lane
markings on S turns, people get startled with --
with police officers or confused where they're
going to pull over on the freeway. It could be --
it could be a whole bunch of things, and all of
those could-be's are reasonable doubts. Thank you.
16
The District Court stated the following when finding Kaneshiro
guilty:
The burden that the State has, I think you
left out one little portion, [Defense Counsel]. The
State has to prove beyond a reasonable doubt,
certainly, that alcohol was a contributing factor in
the impairment, not that it was the sole cause of the
impairment. And -- I -- I -- I think the -- the – the
-- the driving as described by Officer Gazelle was not
good, it was -- it was -- he -- he frankly said it was
not safe driving. Yeah, you know, when people are --
can straighten out the S curve, I think we've all seen
something like that happen, but this is at a very high
speed, so the high speed could be maintained, blew
past the SUV, but in particular hit the brakes when --
when he -- when Mr. Kaneshiro realized that the
officer was behind him, which is an exceptionally, I
would say, dangerous maneuver. Could possibly have
been the -- the reason why Officer Gazelle spoke in an
aggressive manner.
The District Court then recounted details regarding the physical location of
the stop, and found Kaneshiro guilty as follows:
I am — — bottom line — — okay, and no one — — no one's
disputing the date or the time or the — — or the
location of this, that it occurred in the City and
County of Honolulu, State of Hawaii, and it was a
public street, road or highway. You're disputing the
issues you actually addressed in closing, and I — — I
— — Mr. Kaneshiro, I — — I — — I — — I'm left with the
belief that State has proven beyond a reasonable doubt
the elements of its case. I'm finding you guilty of
this charge of Operating a Vehicle Under the Influence
of an Intoxicant.
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constituted "interrogation" because they "were specifically
designed to rule out any possible causes for irregularities on
the SFST other than intoxication."
The District Court found that Kaneshiro was not in
"custody," because when Officer Gazelle pulled Kaneshiro over for
excessive speeding, Officer Gazelle made "no express statement"
that Kaneshiro was under arrest for excessive speeding, and it
was still an "ongoing investigation." The District Court also
denied suppression of Kaneshiro's responses to the MRO questions
because Kaneshiro consented to exit the vehicle for a SFST and
willingly answered the MRO questions.
"[T]he requirement of Miranda warnings is triggered by
two criteria: (1) the defendant must be under interrogation; and
(2) the defendant must be in custody." State v. Ah Loo, 94
Hawai#i 207, 210, 10 P.3d 728, 731 (2000) (cleaned up). The
State in its Answering Brief presented no argument that Kaneshiro
was not subjected to custodial interrogation, or that the MRO
responses were admissible and should not have been suppressed.17
Rather, the State presented argument based on the arguendo
assumption that the District Court erred in failing to suppress
Kaneshiro's MRO responses. The State's failure to argue that
Kaneshiro was not in custody constitutes a waiver of that
argument. See HRAP Rule 28(b)(7) and (c).
In State v. Skapinok, 151 Hawai#i 170, 185, 510 P.3d
599, 614 (2022) (citation omitted), the supreme court held that
"all of the [MRO] questions are interrogation" because
"[a]lthough the 'incriminating inference' may be indirect, the
questions nevertheless adduce evidence to establish that
intoxication caused any poor performance on the SFST."18 Thus,
17
In this regard, the State argued: "Even assuming that the
district court erred in failing to suppress Kaneshiro's answers to the medical
rule-out questions, the district court did not err in refusing to suppress the
remaining evidence and any error was harmless beyond a reasonable doubt[.]"
18
In Skapinok, the officer asked the following MRO questions:
(continued...)
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Miranda warnings were required prior to the officer asking these
questions. Here, no Miranda warnings were given, and Kaneshiro's
responses to the MRO questions should have been suppressed. The
District Court was wrong in this regard. See Manion, 151 Hawai#i
at 271-72, 511 P.3d at 770-71.
The erroneous admission of the MRO responses was not
harmless beyond a reasonable doubt.
The State argues that even assuming that the District
Court erred in failing to suppress the MRO responses, "any error
in admitting them into evidence in the instant case was harmless
beyond a reasonable doubt." Kaneshiro argues that while the
District Court "did not cite the specific bases for its verdict,
the fact that it only excluded the SFST testimony and the court
specifically stated that it disagreed with [d]efense [c]ounsel's
argument in closing, evidence[s] that it relied upon evidence and
statements which should have been suppressed." Kaneshiro's
argument has merit.
"Erroneously admitted evidence is evaluated under the
harmless beyond a reasonable doubt standard." State v. Jones,
148 Hawai#i 152, 170, 468 P.3d 166, 184 (2020) (citation and
internal quotation marks omitted). "The erroneous admission of
evidence is not harmless when there is a reasonable possibility
that the error might have contributed to the conviction." State
18
(...continued)
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?
iv. Do you have an artificial or glass eye?
v. Are you epileptic or diabetic?
vi. Are you blind in either eye?
151 Hawai#i at 173-74, 510 P.3d at 602-03. These questions are identical to
the MRO questions that Officer Gazelle asked Kaneshiro.
13
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v. Baker, 147 Hawai#i 413, 435, 465 P.3d 860, 882 (2020)
(emphasis added) (citing State v. McCrory, 104 Hawai#i 203, 210,
87 P.3d 275, 282 (2004)).
Here, the record reflects that there is a reasonable
possibility that the erroneous admission of the MRO responses
might have contributed to Kaneshiro's OVUII conviction. See id.
Officer Gazelle testified that prior to administering the SFST,
he asked Kaneshiro the MRO questions, to which Kaneshiro
responded that he "mumbles" and wore "prescription glasses." In
response to whether Kaneshiro had a glass eye, Kaneshiro oddly
responded that he wore "glasses." Based on Officer Gazelle's
observations of the area where the SFST was administered, "there
was nothing that would've interfered" with Kaneshiro's ability to
perform the SFST. Officer Gazelle arrested Kaneshiro for OVUII
based on how Kaneshiro was "driving," "smelt [sic]," "looked,"
"acting," "performed on his [SFST]," and the result of
Kaneshiro's "preliminary alcohol screening." (Emphases added).
Officer Gazelle did not remember the "specifics" of Kaneshiro's
SFST performance, but recalled "administering" the test and how
Kaneshiro was "acting" and "driving." Officer Gazelle's opinion
that Kaneshiro was "impaired"19 was based on his "recollection
apart from [his SFST] report[.]"
The State argued in closing that while Officer Gazelle
did not remember the specifics of Kaneshiro's SFST performance,
he "did recall administering a complete SFST, and based on the
SFST, the officer's observations of driving, in particular the
hazardous driving, and the totality of the circumstances, the
officer believed [Kaneshiro] to be both drunk and impaired and
subject to arrest for OVUII." (Emphases added). In adjudicating
Kaneshiro guilty of OVUII, the District Court found that "alcohol
19
Officer Gazelle's opinion testimony that Kaneshiro was "drunk" or
"impaired" is not subject to the 2020 holding in Jones, 148 Hawai#i at 176,
468 P.3d at 190, in which the supreme court prospectively held that: "police
officers may no longer testify, whether in a lay or expert capacity, that a
driver appeared 'intoxicated.'" The trial in this case occurred prior to
Jones, on July 26, 2019 and October 4, 2019.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
was a contributing factor in the impairment" and noted
Kaneshiro's unsafe driving.
On this record, we cannot conclude that the admission
of the MRO responses was harmless beyond a reasonable doubt,
where Officer Gazelle's opinion that Kaneshiro was "impaired" was
based in part on Kaneshiro's SFST performance, and where the MRO
questions are specifically designed to "'rule out' other reasons,
besides intoxication, for poor performance on the SFST." See
Skapinok, 151 Hawai#i at 172, 510 P.3d at 601; Baker, 147 Hawai#i
at 435, 465 P.3d at 882; cf. State v. Uchima, 147 Hawai#i 64, 84,
464 P.3d 852, 872 (2020) (finding that the defendant suffered no
prejudice from the admission of the MRO questions, where the
district court specifically stated that the questions "would have
no probative value, no inculpatory or exculpatory value" in the
trial part of the proceeding) (emphasis added).
Given our disposition, it is not necessary to address
Kaneshiro's remaining contention.
For the foregoing reasons, the (1) October 4, 2019
"Notice of Entry of Judgment and/or Order and Plea/Judgment,"
(2) October 4, 2019 "Amended Notice of Entry of Judgment and/or
Order and Plea/Judgment," and (3) September 11, 2020 "Notice of
Entry of Judgment and/or Order and Plea/Judgment," all entered by
the District Court of the First Circuit, are vacated, and this
matter is remanded for a new trial consistent with this Summary
Disposition Order.
DATED: Honolulu, Hawai#i, June 9, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Alen M. Kaneshiro Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Brian R. Vincent Associate Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
15