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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
09-JUN-2020
11:24 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
_____________________________________________________________
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee/Cross-Appellant,
vs.
LARRY IKIMAKA, Petitioner/Defendant-Appellant/Cross-Appellee,
LIANE HENDERSON and CHERI NUMAZAWA,
Defendant-Appellee/Cross-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 14-1-0306)
JUNE 9, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY MCKENNA, J.
I. Introduction
This appeal arises from the conviction of Larry Ikimaka
(“Ikimaka”) for one count of promoting a dangerous drug in the
second degree in violation of Hawai‘i Revised Statutes (“HRS”)
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§ 712-1242 (Supp. 2007) and one count of unlawful use of drug
paraphernalia in violation of HRS § 329-43.5(a) (Supp. 1988)
after a jury trial in the Circuit Court of the Fifth Circuit
(“circuit court”).1
On October 13, 2014, Kauai Police Department (“KPD”)
received a 911 call from Cheri Numazawa (“Numazawa”) alleging
Ikimaka had hit her, taken her purse, and driven off in a gold
Chevy truck. At around 2:33 a.m., Officer Hansen Hsu (“Officer
Hsu”) responded to the call. Officer Hsu saw a gold Chevy truck
and initiated a traffic stop. Officer Hsu approached the truck,
observed Ikimaka in the driver’s seat and Liane Henderson
(“Henderson”) in the passenger’s seat, and he had Ikimaka and
Henderson exit the truck and sit on the side of the road.
Meanwhile, KPD officers Creighton Tamagawa (“Officer
Tamagawa”) and Mason Telles (“Officer Telles”) attempted to
locate Numazawa to get a statement, and they eventually located
her after about half an hour. Numazawa told the officers that
Ikimaka took her purse, but she did not want to press charges
and did not want Ikimaka arrested. Approximately forty minutes
after the initial stop, Officer Hsu learned through dispatch
that Numazawa had been located and contacted Sergeant Colin
Nesbitt (“Sergeant Nesbitt”). Officer Hsu and Sergeant Nesbitt
1 The Honorable Randal G.B. Valenciano presided.
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determined they had probable cause to seize the truck for theft
on the grounds it contained Numazawa’s purse. They also
discussed Numazawa’s alleged prior drug history.
Officer Hsu informed Ikimaka and Henderson that KPD was
impounding the truck, but that they were not being arrested and
were free to go. Henderson left the scene, but Ikimaka chose to
stay, and Officer Roldan Agbayani (“Officer Agbayani”), then
read Ikimaka his Miranda rights. Ikimaka indicated he did not
want to make a statement.
The truck was towed to the KPD evidence warehouse, and
Sergeant Nesbitt requested a drug-detecting dog to sniff the
outside of the truck. The dog alerted to the presence of drugs.
Based on the dog sniff, Officer Hsu obtained a warrant to search
the truck for Numazawa’s purse and for drugs. Officer Hsu
executed the search warrant and found three purses in the truck,
all of which contained illegal drugs.
Ikimaka, Henderson, and Numazawa were then arrested and
charged for possession of the drugs. No other charges were
filed against Ikimaka. Ikimaka filed a motion to suppress,
arguing the warrantless seizure of the truck was unreasonable
and the dog sniff was a prohibited general exploratory search.
The circuit court denied the motion to suppress.
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After a joint jury trial with Numazawa,2 the jury found
Ikimaka guilty of both charges. Numazawa was acquitted.
Ikimaka was sentenced to four years of probation with an
additional nine months of imprisonment as a condition of
probation.
On appeal to the Intermediate Court of Appeals (“ICA”),
Ikimaka asserted various errors, including that (1) the State
improperly elicited testimony regarding Ikimaka’s exercise of
his right to remain silent; and (2) Officer Hsu was improperly
allowed to speculate on Ikimaka’s mental state.3 In a memorandum
opinion, the ICA affirmed Ikimaka’s convictions. Ikimaka
reasserts the questions presented to the ICA in his application
for certiorari to this court.4
Before addressing two of Ikimaka’s questions on certiorari,
delineated above, we notice plain error affecting substantial
rights with respect to the circuit court’s denial of Ikimaka’s
2 Henderson pleaded no contest to the charges against her.
3 Ikimaka also asserted he was entitled to a new trial because (3) the
State failed to lay the foundation necessary to admit the drug test results;
(4) the circuit court improperly admitted hearsay into evidence; (5) the
circuit court’s jury instruction regarding constructive possession was
incomplete; and (6) the circuit court failed to sever Ikimaka’s trial from
Numazawa’s trial. Ikimaka also asserted that (7), the circuit court erred in
failing to enter a judgment of acquittal due to a lack of sufficient evidence
supporting his actual or constructive possession of the drugs. The ICA
rejected all of these contentions, and we do not further address them in this
opinion.
4 Ikimaka reasserts all of the points of error he raised in the ICA,
except (5) above, which the ICA ruled was waived pursuant to HRAP Rule
28(b)(7) (2016) because Ikimaka did not provide argument on that point.
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motion to suppress. As the dog sniff conducted by KPD was
unrelated to the initial stop and seizure of the truck as
evidence of the alleged theft of Numazawa’s purse and KPD did
not have independent reasonable suspicion to believe the truck
driven by Ikimaka contained drugs, the dog sniff violated
Ikimaka’s constitutional right against unreasonable searches
under article I, section 7 of the Hawai‘i Constitution. State v.
Alvarez, 138 Hawai‘i 173, 378 P.3d 889 (2016) (holding canine
screen unreasonable and unlawful expansion of initial traffic
detention under the circumstances); State v. Estabillio, 121
Hawai‘i 261, 273, 218 P.3d 749, 761 (2009) (holding investigation
of defendant’s alleged involvement with drugs not reasonably
related to the initial stop for traffic offenses). Thus,
Ikimaka’s motion to suppress should have been granted as to the
drug evidence.
To provide guidance, we also address Ikimaka’s first two
questions on certiorari. The deputy prosecuting attorney
(“DPA”) should not have elicited testimony regarding Ikimaka’s
exercise of his right to remain silent, and the circuit court
erred by admitting into evidence Officer Hsu’s lay opinion
testimony on Ikimaka’s intent and knowledge. We do not address
Ikimaka’s remaining questions on certiorari.
We therefore remand this matter to the circuit court for
further proceedings consistent with this opinion.
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II. Background
A. Circuit court proceedings
1. Charges
On October 27, 2014, the State filed a complaint against
Ikimaka, Henderson,5 and Numazawa. Ikimaka was charged with one
count of promoting a dangerous drug in the second degree in
violation of HRS § 712-12426 and one count of unlawful use of
drug paraphernalia in violation of HRS § 329-43.5(a).7 Numazawa
5 Henderson entered a plea of no contest. See supra note 2. We do not
further discuss the charges against Henderson.
6 HRS § 712-1242 provides:
(1) A person commits the offense of promoting a dangerous
drug in the second degree if the person knowingly:
(a) Possesses twenty-five or more capsules, tablets,
ampules, dosage units, or syrettes, containing one or
more dangerous drugs; or
(b) Possesses one or more preparations, compounds,
mixtures, or substances of an aggregate weight of:
(i) One-eighth ounce or more, containing
methamphetamine, heroin, morphine, or cocaine
or any of their respective salts, isomers, and
salts of isomers; or
(ii) One-fourth ounce or more, containing any
dangerous drug; or
(c) Distributes any dangerous drug in any amount,
except for methamphetamine.
(2) Promoting a dangerous drug in the second degree is a
class B felony.
7 HRS § 329-43.5(a) read at the time of the conviction:
It is unlawful for any person to use, or to possess with
intent to use, drug paraphernalia to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale, or
otherwise introduce into the human body a controlled
substance in violation of this chapter. Any person who
violates this section is guilty of a class C felony and
upon conviction may be imprisoned pursuant to section 706–
(continued . . .)
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was charged with one count of promoting a dangerous drug in the
third degree in violation of HRS § 712-1243 (Supp. 2004) and one
count of unlawful use of drug paraphernalia in violation of HRS
§ 329-43.5(a).
2. Ikimaka’s motion to suppress
a. Written submissions
On February 20, 2015, Ikimaka filed a pretrial motion to
quash search warrant and suppress evidence (“motion to
suppress”) for all evidence recovered from the truck. Ikimaka
argued that the “automobile exception” did not justify the
warrantless seizure of the truck because there was no reason to
believe the purse might be removed or destroyed. Ikimaka also
argued the truck’s seizure was unnecessary because he had
volunteered to return Numazawa’s purse, citing the ICA’s holding
in State v. Ramos, 93 Hawai‘i 502, 513, 6 P.3d 374, 385 (App.
2000), that “governmental intrusions into the personal privacy
of citizens of this State be no greater in intensity than
absolutely necessary under the circumstances.”
Ikimaka further maintained that KPD only had probable cause
to search the truck for Numazawa’s purse, not for drugs.
Ikimaka also argued that the dog sniff constituted a “general
(. . . continued)
660 and, if appropriate as provided in section 706–641,
fined pursuant to section 706–640.
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exploratory search” prohibited by State v. Groves, 65 Haw. 104,
649 P.2d 366 (1982).
In its February 25, 2015 opposition memorandum, the State
argued KPD had probable cause to believe that Ikimaka had
committed theft and that evidence of the theft was in the truck
based on Numazawa’s 911 call and Ikimaka’s statement to police
that he had Numazawa’s purse in the truck.
The State’s submissions also showed that on October 13,
2014, at around 5:39 a.m., Sergeant Nesbitt requested a “canine
sniff” on the truck. At around 11:35 a.m., a KPD narcotics
detector dog alerted to the presence of narcotics on the
passenger’s side door of the truck. On October 14, 2014,
Officer Hsu’s application for a warrant to search the truck,
which was registered to a Natasha Lazaro (“Lazaro”), for
Numazawa’s purse as well as “Methamphetamine, Heroin, Cocaine,
Marijuana, and all of its various forms,” was approved.
On October 15, 2014, Officer Hsu executed the search
warrant on the truck. Officer Hsu found a maroon bag under the
driver’s seat containing two glass tubes, $1,400 in cash,
plastic bags containing white crystalline substances, a digital
scale, and an Ace Hardware receipt bearing Ikimaka’s name.
Officer Hsu also found a black purse on the floor of the
passenger’s side containing Henderson’s driver’s license, a
plastic bag containing a “green leafy substance resembling
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marijuana,” and a plastic bag containing a white crystalline
substance. He also found a “Dooney and Bourke” purse containing
a glass pipe, a digital scale, plastic bags containing white
crystalline substances, and IDs bearing Numazawa’s name.
The State maintained that KPD was authorized to seize the
truck pursuant to the automobile exception, and that exigent
circumstances existed because “[i]f police had not seized the
vehicle, there was an extremely high risk Ikimaka or Henderson
would have moved, removed or destroyed the vehicle and/or
evidence.” The State also asserted that a dog sniff “of the
airspace around a closed container is not a Fourth Amendment or
Article I, section 7 search,” citing State v. Snitkin, 67 Haw.
168, 171, 681 P.2d 980, 983 (1984), and Groves, 65 Haw. 104, 649
P.2d 366.
b. Hearing on motion to suppress
At the beginning of the April 2, 2015 hearing, the State
took the position that no evidence should be presented on the
dog sniff issue because it was “contained within the search
warrant.” The circuit court agreed that “the review is based on
the four corners of the warrant,” and stated it was not going to
take evidence on the dog sniff. Citing Groves, 65 Haw. 104, 649
P.2d 366 and Snitkin, 67 Haw. 168, 681 P.2d 980, the circuit
court found that the dog sniff of the airspace around the car
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was appropriate, and it denied the motion to suppress regarding
the use of the drug-sniffing dog.
At the hearing, Ikimaka called Officers Hsu, Agbayani, and
Telles as witnesses, who testified in relevant part to the
following additional facts.
On October 13, 2014 at around 2:33 a.m., Officer Hsu
received information from dispatch about a 911 call made by
Numazawa alleging that Ikimaka had struck her, taken her purse,
and left in a gold Chevy truck from Kamalani Bridge. After
stopping Ikimaka, Office Hsu asked Ikimaka and Henderson to exit
the truck. It was “raining off and on.” At the time Officer
Hsu stopped Ikimaka, KPD had not spoken with Numazawa.
After approximately 30 minutes, Officer Tamagawa, who was
familiar with Numazawa, and Officer Telles located Numazawa on
the beach. The officers spoke with Numazawa, who told them
Ikimaka took her purse and that she wanted it back. However,
she did not want to press charges and did not want Ikimaka
arrested.
After Officer Hsu was informed through dispatch that
Numazawa had been located and that Numazawa did not want to
press charges, he contacted Sergeant Nesbitt. Officer Hsu and
Sergeant Nesbitt determined they had probable cause to seize the
truck for theft based on Numazawa’s 911 call and her statements
to the police. Sergeant Nesbitt also mentioned to Officer Hsu
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that Numazawa had a prior drug history. Sergeant Nesbitt told
Officer Hsu that one reason to seize the truck was Numazawa’s
drug history, but “the main reason was because of the theft that
occurred.” The truck’s windows were down at the time of seizure.
At that point in time, Officer Hsu did not think he had probable
cause to seize the truck for drugs.
Ikimaka asked if he could retrieve the purse from his
vehicle and return it to Numazawa. Numazawa also later arrived
at the scene and asked if she could retrieve the purse from the
truck. However, Officer Hsu “wasn’t going to let [Ikimaka] go
back in the vehicle to grab the purse” because KPD had already
seized the vehicle as evidence.
After the conversation with Sergeant Nesbitt, Officer Hsu
told Ikimaka and Henderson that they were not being arrested
today, and that they could go. However, Ikimaka chose to stay,
and Officer Agbayani read him his Miranda rights. Ikimaka
initially indicated he did not want to make a statement.
However, he then apparently spontaneously said to Officer
Agbayani, “I have [Numazawa’s] bag in my truck. Can you just
arrest me for theft and don’t take my truck?”
c. Circuit court’s ruling
The circuit court orally denied the motion to suppress on
the grounds that KPD had probable cause to seize the truck and
that the dog search was appropriate. On May 13, 2015, the
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circuit court issued its written order denying Ikimaka’s motion
to suppress. The circuit court determined that Officer Hsu had
reasonable suspicion to stop Ikimaka, had probable cause to
believe a theft had been committed, and that the automobile
exception permitted KPD to seize the truck. The circuit court
also determined that the dog sniff was permissible because
Ikimaka “had no expectation of privacy in the airspace around
his vehicle, and there was no inappropriate, dragnet search
done.”
3. Jury trial
Ikimaka and Numazawa’s joint jury trial commenced on August
17, 2015. The following is relevant to the issues we address on
certiorari.
a. Officer Hsu’s testimony
The State called Officer Hsu, who gave testimony
substantively similar to his April 2, 2015 testimony at the
hearing on Ikimaka’s motion to suppress relating to the traffic
stop and the seizure of Ikimaka’s truck. At trial, Officer Hsu
did not testify about Numazawa’s drug history or the dog sniff.
Officer Hsu also testified that he had worked for KPD for
approximately seven years and had participated in
“[a]pproximately over 50” drug-related investigations.
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On cross-examination, Officer Hsu testified that he did not
see Ikimaka touch any of the drugs or ingest the drugs, and the
following exchange took place.
Q. You never saw Mr. Ikimaka smoking or otherwise
ingesting any drugs; correct?
A. For that night or --
Q. Ever?
A. Yes. I never seen him do that, yes.
Q. And you have no way of knowing whether Mr. Ikimaka --
THE COURT: Approach.
(The following was heard at the bench.)
THE COURT: You just realize you asked a very open-ended
question and --
[DEFENSE]: I knew the answer, Judge.
THE COURT: So it’s real risky. I just want to say I
thought it was a very risky question and that is open for
the redirect examination. Okay. Thank you.
(The following was heard in open court.)
BY [DEFENSE]:
Q. Officer [Hsu], you have no way of knowing whether Mr.
Ikimaka ever intended to possess any of those drugs;
correct?
A. Correct.
[THE STATE]: Your Honor, approach.
THE COURT: Approach.
(The following was heard at the bench.)
THE COURT: This is an interesting question. So, [State],
let me hear the argument.
[THE STATE]: First of all, it’s speculation. The officer’s
not going to (inaudible). Third, it’s a question for the
jury -- I mean intended --
THE COURT: I think I’m going to allow him to answer because
this is another area of redirect that you can go into. The
door was opened, how you establish intent and all that.
You can do what you need to, but the issue of intent was
raised by [the defense], but only for Mr. Ikimaka . . . .
[THE STATE]: Okay. Thank you.
On redirect examination, the following exchange took place.
Q: Now, I believe [the defense] asked about Larry
Ikimaka’s intent regarding the drugs found in the vehicle.
As a police officer, would you say that Larry Ikimaka had
intent to possess drugs, had knowledge of drugs, if he
stated “Just arrest me and don’t take my truck”?
[DEFENSE]: May we approach?
THE WITNESS: Yes.
THE COURT: Approach.
(The following was heard at the bench.)
[DEFENSE]: I think it calls for speculation.
THE COURT: This is all the intent questions that was
asked . . . during cross-examination.
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[DEFENSE]: But the intent -- but he can’t testify -- he’s
speculating as to what my client.
THE COURT: You asked him to speculate about intent, so this
is just a reasonable -- a logical, reasonable follow up to
the questions. That’s why I brought you here when the
question was asked.
[DEFENSE]: Well, I thought you were talking about 404(b).
I asked him whether he has any way to know Mr. Ikimaka’s
opinion, and she’s asking him and saying hey, he’s
speculating about what Mr. Ikimaka’s intent is.
THE COURT: But you asked him to speculate on the issue of
intent. He answered. So now I’m going to allow the State
to ask the question. You also asked questions about
whether he had prior drug use. I don’t know whether he did
or didn’t, but that certainly opens the door.
[DEFENSE]: I didn’t ask that question. I asked on that
date and he said “ever?” So I didn’t want to leave it
hanging for the jury. That’s why I said “yeah” after.
That’s the way he responded.
THE COURT: You opened the door on that. I don’t know
whether there’s any information on that. That’s why I
brought you up and said this was a risky line of
questioning. I mean, it was apparent to the Court. But
the strategy you take during your questioning, I don’t get
involved in.
[DEFENSE]: I did that but what I’m saying with regards to
-- I don’t think she’s allowed to ask him if he has a prior
history unless she can go through the whole 404(b). That's
not what I asked him. I asked him on that day and he asked
me “ever?” So it wasn’t fair to me to leave it hanging for
the jury.
THE COURT: I don’t know what's fair or not. All I know is
the question was asked so I’m going to allow it. I don’t
know if there’s any relevant information. But as far as
the intent part, sure, I'm going to allow [the State] to
question about intent given it was raised by you in cross-
examination. So you cannot raise an issue and then not
expect the other parties to follow up on that, so this is
just a reasonable follow up. So your objection is
overruled. Thank you.
(The following was heard in open court.)
. . . .
BY [THE STATE]:
Q. And, Officer [Hsu], would the fact that Mr. Ikimaka
tried to stop the police from taking his truck by saying
that indicate his intent to possess drugs in the truck?
A. Yes.
b. Officer Agbayani’s testimony
The State called Officer Agbayani, who also gave testimony
substantively similar to his April 2, 2015 testimony at the
hearing on Ikimaka’s motion to suppress, but also provided the
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following testimony relevant to the issues we address on
certiorari.
At approximately 2:30 a.m. on October 13, 2014, Officer
Agbayani arrived at the Kintaro’s Restaurant area in response to
Numazawa’s 911 call. Officer Hsu, Ikimaka, and Henderson were
at the Kintaro’s area when he arrived. The following exchange
between Officer Agbayani and the DPA then took place:
Q. Okay. And did you speak to [Ikimaka]?
A. Yes.
Q. And you asked [Ikimaka] if he wanted to talk to you
about what had happened with the purse?
A. Yes.
Q. And he didn't want to talk to you?
A. Yes.
Q. And because he didn’t want to talk to you, you didn’t
ask him any questions?
A. No, I did not.
Q. And after he initially told you that he didn’t want to
talk to you --
THE COURT: Approach.
(The following was heard at the bench.)
THE COURT: I’m going strike all this line of questioning
because he has the right to remain silent. It cannot be
used against him.
The circuit court then struck the DPA’s line of questioning and
instructed the jury not to consider those questions.
Officer Agbayani then stated that Ikimaka spontaneously
said, “I have [Numazawa’s] bag in my truck. Can you just arrest
me for theft and don’t take my truck?” Officer Hsu had, however,
given him “specific instructions not to let anybody get into the
truck.”
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On cross-examination by Ikimaka, Officer Agbayani
again referenced the fact that Ikimaka did not want to make
a statement in the following exchange:
Q. Okay. And when he was 15 to 20 feet away from you and
said something to you, you were walking away from him or he
was walking away from you or no?
A. I was walking away from him, but this is –- he’s also
approaching me. Because when I left him, I have to inform
my beat partner that he wasn’t -- he doesn’t want to answer
my questions. And then, you know -- I mean, I’m not saying
that I have good peripheral views, but we always look –-
for security reasons, we always like this, our head is
always on swivel. I can see him, you know, kind of like
coming towards me.
Q. And that’s when he talked to you?
A. When he said, yes, that statement, sir.
(Emphasis added.)
c. After completion of State’s evidence
After the State rested its case and the circuit court
denied Ikimaka’s motions for judgment of acquittal and directed
verdict, on August 20, 2015, Ikimaka moved for a mistrial due to
the prosecution’s elicitation of testimony from Officer Agbayani
regarding Ikimaka’s exercise of his right to remain silent. The
circuit court denied the motion, noting that it had issued
curative instructions.
Ikimaka and Numazawa did not call any witnesses, and they
did not testify.
On August 24, 2015, the jury found Ikimaka guilty of both
counts. Numazawa was acquitted.
On December 30, 2015, the circuit court issued its second
amended judgment of conviction and probation sentence,
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sentencing Ikimaka to four years of probation with nine months
additional imprisonment for both Counts 1 and 2.8
C. ICA proceedings
On January 4, 2016, Ikimaka filed his notice of appeal to
the ICA.9 On December 18, 2019, the ICA filed its amended
memorandum opinion, affirming Ikimaka’s conviction. State v.
Ikimaka, CAAP-XX-XXXXXXX (App. Dec. 18, 2019) (mem.).10 In
relevant part, the ICA held the circuit court did not abuse its
discretion by allowing Officer Hsu to give his lay opinion under
HRE Rule 701. Ikimaka, mem. op. at 13. According to the ICA,
although Officer Hsu “did not have personal knowledge of
[Ikimaka’s] statement” to “[j]ust arrest [him] and don’t take
[his] truck,” Officer Agbayani had told him about the statement
and there was no dispute that Ikimaka made the statement.
Ikimaka, mem. op. at 16. Therefore, the ICA determined Officer
Hsu’s opinion was rationally related to his knowledge,
experience, and perceptions. Id.
The ICA also held the DPA did not commit misconduct by
eliciting testimony about Ikimaka’s exercise of his right to
8 Ikimaka was also ordered to pay a $205 Crime Victim Compensation Fee, a
$150 Probation Services Fee, and a $2,000 Drug Demand Reduction Assessment
for Count 1, and a $105 Crime Victim Compensation Fee and a $1,000 Drug
Demand Reduction Assessment for Count 2.
9 See supra text at and note 3, regarding the points on appeal.
10 There are no substantive differences between the original memorandum
opinion filed on November 27, 2019, and the amended memorandum opinion filed
on December 18, 2019.
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remain silent. Ikimaka, mem. op. at 18 (citing State v.
Tsujimura, 140 Hawai‘i 299, 315, 400 P.3d 500, 516 (2017)
(holding the test in cases where the prosecution elicits
information regarding a defendant’s prearrest silence is whether
the prosecutor intended for the information to imply the
defendant’s guilt or whether the character of the information
suggests that the prearrest silence may be considered as
inferential evidence of guilt). The ICA determined that the DPA
had elicited the testimony in an attempt to “set the physical
circumstances of [a] permitted statement” (Ikimaka’s apparent
spontaneous statement to Officer Agbayani) and did not intend to
use Ikimaka’s silence to imply his guilt. Ikimaka, mem. op. at
18-20. Furthermore, the ICA noted the circuit court immediately
struck the challenged testimony. Ikimaka, mem. op. at 20. The
ICA also stated in a footnote that “at the time of this trial,
it had not been decided by either the United States Supreme
Court nor the Hawai‘i Supreme Court that a defendant’s right to
remain silent existed prior to arrest, or whether prearrest
silence could be used against a defendant at trial.” Ikimaka,
mem. op. at 20 n.15.
On January 21, 2020, the ICA issued its judgment affirming
the circuit court’s second amended judgment of conviction.
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D. Application for writ of certiorari
Ikimaka’s application restates arguments made before the
ICA. As noted, we only address Ikimaka’s first two questions on
certiorari: whether the DPA should have elicited testimony
regarding Ikimaka’s exercise of his right to remain silent, and
whether the circuit court erred by admitting into evidence
Officer Hsu’s lay opinion testimony on Ikimaka’s intent and
knowledge. We need not and do not address Ikimaka’s remaining
questions on certiorari.
III. Standards of Review
A. Plain error
“Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of
the court.” HRPP Rule 52(b) (2014).
“The appellate court ‘will apply the plain error standard
of review to correct errors which seriously affect the fairness,
integrity, or public reputation of judicial proceedings, to
serve the ends of justice, and to prevent the denial of
fundamental rights.’” State v. Domut, 146 Hawai‘i 183, 190, 457
P.3d 822, 829 (2020) (quoting State v. Nichols, 111 Hawai‘i 327,
334, 141 P.3d 974, 981 (2006)). “An appellate court’s ‘power to
deal with plain error is one to be exercised sparingly and with
caution because the plain error rule represents a departure from
a presupposition of the adversary system—that a party must look
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to [their] counsel for protection and bear the cost of counsel’s
mistakes.’” Id. (quoting Nichols, 111 Hawai‘i at 335, 141 P.3d
at 982).
B. Motion to suppress
“A [circuit] court’s ruling on a motion to suppress
evidence is reviewed de novo to determine whether the ruling was
‘right’ or ‘wrong.’” Estabillio, 121 Hawai‘i at 269, 218 P.3d at
757. “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.” Id.
C. Prosecutorial misconduct
“The term ‘prosecutorial misconduct’ is a legal term of art
that refers to any improper action committed by a prosecutor,
however harmless or unintentional.” State v. Udo, 145 Hawai‘i
519, 534, 454 P.3d 460, 475 (2019). “A prosecutor may not imply
guilt from a defendant’s exercise of the right to remain
silent[.]” Tsujimura, 140 Hawai‘i at 314, 400 P.3d at 515. The
test of whether a prosecutor’s comment was improper is whether
“that comment was manifestly intended or was of such character
that the jury would naturally and necessarily take it to be a
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comment on the failure of the accused to testify.” State v.
Rodrigues, 113 Hawai‘i 41, 49, 147 P.3d 825, 833 (2006) (quoting
State v. Wakisaka, 102 Hawai‘i 504, 515, 78 P.3d 317, 328 (2003))
(internal quotation marks omitted).
D. Admission of opinion testimony
“[A]dmission of opinion evidence is a matter within the
discretion of the trial court, and only an abuse of that
discretion may result in reversal.” State v. Tucker, 10 Haw.
App. 73, 89, 861 P.2d 37, 46 (1993) (citing Sherry v. Asing, 59
Haw. 135, 148, 531 P.2d 648, 658 (1975)). “[T]o constitute an
abuse of discretion a court must have clearly exceeded the
bounds of reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant.”
Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114,
839 P.2d 10, 26 (1992).
IV. Discussion
A. The dog sniff was an illegal search, and the motion to
suppress should have been granted
Pursuant to HRPP Rule 52(b), “[p]lain errors or defects
affecting substantial rights may be noticed although they were
not brought to the attention of the court.” We notice plain
error with regard to the circuit court’s denial of Ikimaka’s
motion to suppress. In his motion to suppress, Ikimaka argued
the dog sniff conducted on the truck was an impermissible
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general exploratory search. We agree that the dog sniff was
impermissible.
“[T]he right to be free of ‘unreasonable’ searches and
seizures . . . requires that governmental intrusions into the
personal privacy of citizens of this State be no greater in
intensity than absolutely necessary under the circumstances.”
State v. Kaluna, 55 Haw. 361, 369, 520 P.2d 51, 58-59 (1974).
“A stop of a vehicle for an investigatory purpose constitutes a
seizure within the meaning of the constitutional protection
against unreasonable searches and seizures.” Estabillio, 121
Hawai‘i at 270, 218 P.3d at 758. In State v. Perez, 111 Hawai‘i
392, 397, 141 P.3d 1039, 1044 (2006), this court adopted a two-
part test to determine whether a search or seizure pursuant to
an investigative stop is reasonable. First, the initial action
must be justified at its inception, and second, the court must
determine whether the search or seizure was reasonably related
in scope to the circumstances which justified the interference
in the first place. Id. (citing Terry v. Ohio, 392 U.S. 1, 20
(1968)).
The dog sniff conducted on the truck was not reasonably
related in scope to Officer Hsu’s initial stop of Ikimaka as it
was unrelated to Ikimaka’s alleged theft of Numazawa’s purse.
An investigation unrelated to the initial stop “must be
supported by independent reasonable suspicion to be
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constitutional.” Estabillio, 121 Hawai‘i at 273, 218 P.3d at 761.
Numazawa’s alleged drug history did not give KPD reasonable
suspicion to believe the truck driven by Ikimaka contained drugs.
Moreover, the dog sniff was impermissible based on the case
law existing at the time of the motion to suppress. The facts
of this case are distinguishable from Groves and Snitkin, which
the circuit court cited in its order denying Ikimaka’s motion to
suppress. In Groves, Groves was initially stopped at the
airport after a pilot reported the smell of marijuana emanating
from Groves’s suitcase. 65 Haw. at 105-06, 649 P.2d at 368.
After stopping Groves, a police officer also noticed the smell
of marijuana from the suitcase, after which a dog sniff was
performed on the suitcase. 65 Haw. at 106, 649 P.2d at 368.
This court held that Groves had no reasonable expectation of
privacy in the airspace around his suitcase and the dog sniff
was not an illegal search. 65 Haw. at 113, 649 P.2d at 372.
However, unlike in Groves, Ikimaka was stopped because he had
allegedly stolen Numazawa’s purse, and the ensuing dog sniff for
drugs was unrelated to that reason.
Also, in Snitkin, the United States Customs Service Drug
Enforcement Agency performed a routine canine survey of a
Federal Express cargo area, and the drug-sniffing dog alerted to
the presence of narcotics in a package. 67 Haw. at 169-70, 681
P.2d at 982. The police obtained a search warrant, found
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cocaine in the package, resealed the package, and arrested
Snitkin after he picked up the package. 67 Haw. at 170, 681
P.2d at 982. This court held that the reasonableness of a dog
sniff “should be determined by balancing the State’s interest in
using the dog against the individual’s interest in freedom from
unreasonable government intrusions,” and that Snitkin’s freedom
interest in the airspace around his package was minimal. 67 Haw.
at 172, 681 P.2d at 983-84. However, we specifically noted that
the package was not detained at the time of the dog sniff. 67
Haw. at 172, 681 P.2d at 984. In this case, unlike Snitkin, KPD
had detained the truck at the time of the dog sniff.
Alvarez, decided after the circuit court decided the
subject motion to suppress, has made it clear that this dog
sniff was an unreasonable search. Alvarez involved a traffic
stop based on police officers’ observations that one of the
passengers was not wearing a seatbelt. 138 Hawai‘i at 175, 378
P.3d at 891. After stopping the car, driven by Alvarez, the
officers recognized Alvarez and his passengers from prior
encounters while assigned to the Hilo Vice Section. Id. The
officers had also received “reliable confidential information”
within the past five days that Alvarez was distributing crystal
methamphetamine. Id. The officers brought a drug-sniffing dog
to the scene, and the dog alerted to the presence of drugs in
the car. Id. This court held that the dog sniff was not
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reasonably related in scope to the original traffic stop, and
the “tip from a confidential informant under the circumstances
[was] ‘not sufficient to establish reasonable suspicion for an
investigatory detention.’” 138 Hawai‘i at 184, 378 P.3d at 900
(citing Estabillio, 121 Hawai‘i at 274, 218 P.3d at 762).
Like in Alvarez, Ikimaka was not stopped on suspicion of
possessing drugs. Because KPD lacked an independent basis to
support a reasonable suspicion that the truck contained drugs
and the dog sniff was not reasonably related in scope to the
circumstances that justified the detention of the truck in the
first place, the dog sniff was impermissible.
Because the result of the dog sniff was the only piece of
information supporting the warrant to search the truck for drugs,
the drug evidence should have been suppressed under the fruit of
the poisonous tree doctrine. See Alvarez, 138 Hawai‘i at 185,
378 P.3d at 901; Estabillio, 121 Hawai‘i at 274, 218 P.3d at
762.11
11 The improper dog sniff invalidated the search warrant. See State v.
Tagaolo, 93 Hawaiʻi 314, 2 P.3d 718 (App. 2000) (holding officer’s suspicion
that firearm and ammunition were in fanny bag was fruit of poisonous tree of
his improper warrantless search of fanny bag by feeling its contents,
rendering search warrant invalid and requiring suppression of items found in
fanny bag). Even if KPD had, without the dog sniff, obtained a search
warrant to search inside the truck for Numazawa’s purse, it should have been
readily identifiable and probable cause would have been required for a
warrant to allow a further search of the contents of purses within the truck.
See State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980) (requiring search
warrant to search personal luggage taken by police from automobiles); State v.
Wong, 68 Haw. 221, 708 P.2d 825 (1985) (holding warrantless search of handbag
an unreasonable search despite defendant having stated he had vial of cocaine
(continued . . .)
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Hence, the circuit court should have granted Ikimaka’s
motion to suppress. We therefore vacate Ikimaka’s conviction,
and remand for further proceedings consistent with this opinion.
Although this ruling may be dispositive of the drug charges
against Ikimaka, we address his first two questions on
certiorari to provide guidance.
B. The DPA should not have referenced Ikimaka’s initial
refusal to speak to Officer Agbayani after Miranda warnings
had been given
Ikimaka argues the DPA committed prosecutorial misconduct
by eliciting testimony about the exercise of his right to remain
silent. The ICA held that the DPA did not commit misconduct by
referencing Ikimaka’s initial refusal to talk to Officer
Agbayani after he received Miranda warnings because she was not
attempting to comment on Ikimaka’s silence, did not intend to
use Ikimaka’s silence to imply his guilt, and the circuit court
immediately gave curative instructions. Ikimaka, mem. op. at
19-21 (citing Tsujimura, 140 Hawai‘i at 315, 400 P.3d at 516).
The ICA noted that at the time of Ikimaka’s trial, neither the
United States Supreme Court nor this court had decided whether
(. . . continued)
therein); State v. Wallace, 80 Hawaiʻi 382, 405, 910 P.2d 695, 718 (1996)
(holding that forty-three heat-sealed clear plastic packets containing
cocaine seized during warrant allowing search of automobile for marijuana
were not “closed” containers with a reasonable expectation of privacy
requiring a warrant to conduct a further search).
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the right to remain silent attached prior to arrest. Ikimaka,
mem. op. at 20 n.15.
Although the ICA cited Tsujimura, in that case, the DPA was
referring to the defendant’s pre-arrest silence before Miranda
warnings were administered. 140 Hawai‘i at 309, 311, 400 P.3d at
510, 512. Although Ikimaka was not formally arrested at the
point in time the DPA referenced, Officer Agbayani had already
given Ikimaka Miranda warnings. See State v. Uganiza, 68 Haw.
28, 30, 702 P.2d 1352, 1354 (1985) (involving a defendant who
was arrested, read Miranda rights, and not free to leave, and
who invoked his right to remain silent by indicating that he did
not want to make a statement).
Whether or not Miranda rights have been given, prosecutors
may not comment on a defendant’s silence to imply that such
silence is evidence of guilt. State v. Melear, 63 Haw. 488, 496,
630 P.2d 619, 626 (1981). The test of whether a prosecutor’s
comment was improper is whether “that comment was manifestly
intended or was of such character that the jury would naturally
and necessarily take it to be a comment” on the exercise of the
right to remain silent. Rodrigues, 113 Hawai‘i at 49, 147 P.3d
at 833 (quoting Wakisaka, 102 Hawai‘i at 515, 78 P.3d at 328)
(internal quotation marks omitted).
On direct examination of Officer Agbayani, the following
exchange between the DPA and Officer Agbayani took place:
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Q: Okay. And did you speak to [Ikimaka]?
A: Yes.
Q: And you asked [Ikimaka] if he wanted to talk to you
about what had happened with the purse?
A: Yes.
Q: And he didn’t want to talk to you?
A: Yes.
Q: And because he didn’t want to talk to you, you didn’t
ask him any questions.
A: No, I did not.
Q: And after he initially told you that he didn’t want
to talk to you --
THE COURT: Approach.
(Emphases added.)
Contrary to the ICA’s memorandum opinion, the DPA’s line of
questioning could have implied Ikimaka’s guilt. Although the
DPA’s questions could have “set the physical circumstances” of
Ikimaka’s eventual statement in some manner, Ikimaka, mem. op.
at 19, the DPA referenced Ikimaka’s silence before eliciting
testimony about Ikimaka’s eventual statement regarding
Numazawa’s purse. Although even one reference was improper, the
DPA made three references in quick succession. Because we
vacate Ikimaka’s conviction on other bases, we need not
determine the DPA’s intent or whether the questions constituted
prosecutorial misconduct. We caution, however, that prosecutors
may not elicit testimony regarding a defendant’s exercise of
their right to remain silent. See Rodrigues, 113 Hawai‘i at 49,
147 P.3d at 833.
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C. Officer Hsu’s opinion testimony as to Ikimaka’s intent and
knowledge
Ikimaka also argues Officer Hsu’s testimony regarding his
intent to possess the drugs was speculative and inadmissible
pursuant to HRE Rules 602 (1992)12 and 701 (1984).13 The ICA held
that Officer Hsu’s testimony was a lay opinion permissible under
HRE Rule 701 and that Ikimaka opened the door to his redirect
testimony by questioning Officer Hsu about intent on cross-
examination. Ikimaka, mem. op. at 15-18.
On cross-examination, the following exchange between
Ikimaka and Officer Hsu occurred:
Q. You never saw Mr. Ikimaka smoking or otherwise
ingesting any drugs; correct?
A. For that night or --
Q. Ever?
A. Yes. I never seen him do that, yes.
Q. And you have no way of knowing whether Mr. Ikimaka --
. . . .
Q. Officer [Hsu], you have no way of knowing whether Mr.
Ikimaka ever intended to possess any of those drugs;
correct?
A. Correct.
12 HRE Rule 602 provides:
A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness
has personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the
witness’ own testimony. This rule is subject to the
provisions of rule 703, relating to opinion testimony by
expert witnesses.
13 HRE Rule 701 provides:
If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited
to those opinions or inferences which are (1) rationally
based on the perception of the witness, and (2) helpful to
a clear understanding of the witness’ testimony or the
determination of a fact in issue.
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The DPA objected to Ikimaka’s question as calling for
speculation, but the circuit court allowed the question, stating,
“The door was opened, how you establish intent and all that,”
and that the DPA could address the issue on redirect.
The circuit court erred, however, in ruling that the
defense “opened the door.”
The ‘opening the door’ doctrine is essentially a rule of
expanded relevancy . . . .” State v. James, 144 N.J. 538,
677 A.2d 734, 742 (1996). “Under this doctrine, when one
party introduces inadmissible evidence, the opposing party
may respond by introducing [ ] inadmissible evidence on the
same issue.” State v. Fukusaku, 85 Hawaiʻi 462, 497, 946
P.2d 32, 67 (1997); see also State v. Dvorak, 295 S.W.3d
493, 502 (Mo. Ct. App. E.D. 2009) (the doctrine applies
after one party introduces inadmissible evidence).
Admissible evidence therefore does not ‘open the door’ to
otherwise inadmissible evidence. State v. Middleton, 998
S.W.2d 520, 528 (Mo. 1999) (“A party may not, however,
introduce inadmissible evidence to rebut inferences raised
by the introduction of admissible evidence during cross-
examination.”).
State v. Lavoie, 145 Hawai‘i 409, 422-23, 453 P.3d 229, 242-43
(2019) (footnote omitted). As we further stated in our recent
opinion in State v. Miranda, --- Hawaiʻi ---, -- n.13, --- P.3d
---, -- n.13, 2020 WL 2988268 at *10 n.13 (June 4, 2020), this
court has not adopted the “opening the door” doctrine:
[The opening the door doctrine] has also been referred to
as the doctrine of “curative admissibility” or “fighting
fire with fire.” State v. Fukusaku, 85 Hawai‘i 462, 497,
946 P.2d 32, 67 (1997). This court has not determined
whether to adopt the doctrine. State v. Lavoie, 145 Hawaiʻi
409, 424, 453 P.3d 229, 244 (2019) (“[E]ven if we were to
adopt the doctrine of curative admissibility, it would not
be applicable to the present case.” (quoting Fukusaku, 85
Hawai‘i at 497, 946 P.2d at 67)).
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Thus, although some courts have adopted the “opening the door”
doctrine when one party introduces inadmissible evidence, which
allows the opposing party to “respond by introducing
inadmissible evidence on the same issue,” we have not done so.
And the doctrine would in any event be inapplicable here because
“admissible evidence [] does not ‘open the door’ to otherwise
inadmissible evidence.” Lavoie, 145 Hawai‘i at 422, 453 P.3d at
242. In this case, Ikimaka’s question of whether Officer Hsu
had “no way of knowing” his intent to possess drugs did not
elicit inadmissible evidence. Ikimaka’s question did not ask
Officer Hsu to speculate on Ikimaka’s intent, but rather sought
to point out that Officer Hsu could not know Ikimaka’s intent.
Therefore, Ikimaka’s cross-examination question could not have
“opened the door” to otherwise inadmissible evidence.
In addition, for the reasons explained below, the following
exchange between the DPA and Officer Hsu was otherwise
inadmissible:
Q: Now, I believe [the defense] asked about Larry
Ikimaka’s intent regarding the drugs found in the vehicle.
As a police officer, would you say that Larry Ikimaka had
intent to possess drugs, had knowledge of drugs, if he
stated “Just arrest me and don’t take my truck”?
. . . .
Q: And, Officer [Hsu], would the fact that Mr. Ikimaka
tried to stop the police from taking his truck by saying
that indicate his intent to possess drugs in the truck?
A: Yes.
HRE Rule 602 provides that witnesses “may not testify to a
matter unless evidence is introduced sufficient to support a
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finding that the witness has personal knowledge of the matter.”
The commentary to HRE Rule 602 explains that “personal knowledge”
means “that the witness perceived the event about which [they]
testif[y] and that [they have] a present recollection of that
perception.” HRE Rule 701 provides that lay witness opinion
testimony is limited to “those opinions or inferences which are
(1) rationally based on the perception of the witness, and
(2) helpful to a clear understanding of the witness’ testimony
or the determination of a fact in issue.”
Although HRE Rule 602 requires witness testimony to be
based on the “personal knowledge” of that witness, as the ICA
noted in its memorandum opinion, “Officer Hsu did not have
personal knowledge of [Ikimaka’s] statement.” Ikimaka, mem. op.
at 16. Officer Hsu was not testifying as an expert witness
under HRE Rule 702 (1992),14 and his opinion was therefore a lay
opinion under HRE Rule 701. HRE Rule 701 requires that a “lay
opinion be based upon firsthand knowledge,” and Officer Hsu did
not have firsthand knowledge of Ikimaka’s statement. HRE Rule
14 HRE Rule 702 provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise. In determining the issue of assistance to the
trier of fact, the court may consider the trustworthiness
and validity of the scientific technique or mode of
analysis employed by the proffered expert.
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701 cmt. Therefore, Officer Hsu’s opinion that Ikimaka’s
statement evidenced his knowledge and intent to possess drugs
was not admissible under HRE Rule 602 or 701.
Moreover, Officer Hsu’s testimony on Ikimaka’s intent and
knowledge was also impermissible because it expressed a legal
conclusion as to Ikimaka’s state of mind. See State v. Vliet,
91 Hawai‘i 288, 296-97, 983 P.2d 189, 197-98 (1999). While HRE
Rule 704 (1980) permits testimony “embrac[ing] an ultimate issue
to be decided by the trier of fact,” it “does not allow ‘the
admission of opinions which would merely tell the jury what
result to reach[.]’” State v. Batangan, 71 Haw. 552, 559, 799
P.2d 48, 52 (1990) (quoting HRE Rule 704 cmt.); see also State v.
Ryan, 112 Hawai‘i 136, 141, 144 P.3d 584, 589 (App. 2006)
(holding an officer’s opinion testimony that the complaining
witness was truthful impermissibly invaded the province of the
jury to determine the facts). “Nor is [HRE Rule 704] intended
to allow a witness to give legal conclusions.” Vliet, 91 Hawai‘i
at 296-97, 983 P.2d at 197-98.
Here, Ikimaka was charged with promoting a dangerous drug
in the second degree in violation of HRS § 712-1242, which
requires “knowing” possession of the drugs. Ikimaka was also
charged with unlawful use of drug paraphernalia in violation of
HRS § 329-43.5(a), which requires possession of drug
paraphernalia with “intent to use” it for the enumerated
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purposes. Therefore, Officer Hsu’s testimony as to Ikimaka’s
intent and knowledge expressed a legal conclusion and told the
jury what result to reach, and it was not admissible under HRE
Rule 704.
Additionally, Officer Hsu’s testimony was improperly
“imbued with an aura of expertise,” as he testified at trial
that he had been involved in “[a]pproximately over 50” drug
investigations. See State v. Calara, 132 Hawai‘i 391, 393, 322
P.3d 931, 933 (2014) (holding an officer’s testimony regarding
whether complaining witness’s allegations provided him with
probable cause was tantamount to an expression of an opinion
that the witness had been truthful, which was “imbued with an
aura of expertise due to his experience” and invaded the
province of the jury); Ryan, 112 Hawai‘i at 141, 144 P.3d at 589
(holding that an emphasis on officers’ training and experience
in domestic violence cases gave the officers “an aura of being
experts in evaluating the truthfulness” of the complaining
witness’s statements). Therefore, the circuit court abused its
discretion by admitting Officer Hsu’s testimony on Ikimaka’s
intent and knowledge.
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V. Conclusion
We therefore vacate in part the ICA’s January 21, 2020
judgment on appeal to the extent it affirmed the circuit court’s
December 30, 2015 second amended judgment of conviction and
probation sentence but affirm it to the extent it dismissed the
State’s cross-appeal as moot. We also vacate the circuit
court’s December 30, 2015 second amended judgment of conviction
and probation sentence and its May 13, 2015 order denying
Ikimaka’s motion to suppress. We remand this matter to the
circuit court for further proceedings consistent with this
opinion.
Rosa Flores /s/ Mark E. Recktenwald
for Petitioner
/s/ Paula A. Nakayama
Tracy Murakami /s/ Sabrina S. McKenna
for Respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
35