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State v. Tavares

Intermediate Court of Appeals of Hawaii

June 28, 2013

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
SLLEN TAVARES, Defendant-Appellant and FRANK HAMPP, Defendant.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 09-1-1864)

Dwight C.H. Lum for Defendant-Appellant.

Stephen K. Tsushima Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee

Nakamura, C.J., Foley and Ginoza, JJ.

MEMORANDUM OPINION

Defendant-Appellant Allen Tavares (Tavares) appeals from the Judgment of Conviction and Sentence (Judgment) entered by the Circuit Court of the First Circuit (circuit court)[1] on April 6, 2011, convicting him of Ownership or Possession Prohibited of Any Firearm Or Ammunition By a Person Convicted of Certain Crimes, pursuant to Hawaii Revised Statutes (HRS) § 134-7 (b) and (h) (2011 Repl.) .

Prior to trial, Tavares filed a Motion to Suppress Evidence (motion to suppress), seeking to preclude Plaintiff-Appellee State of Hawai'i (State) from introducing at trial a gun, a magazine clip, cartridges, and a holster that were seized by Honolulu Police Department (HPD) officers on November 30, 2010, and to preclude testimony as to events that occurred after Tavares' vehicle was stopped and evidence seized that Tavares contends are "fruits of the poisonous tree." On July 9, 2010, the circuit court denied Tavares' motion to suppress. On July 28, 2010, the circuit court filed its "Findings of Fact, Conclusions of Law and Order Denying [Tavares'] Motion to Suppress Evidence."

On October 14, 2010, at the close of the State's case at trial, Tavares made an oral motion for judgment of acquittal, arguing that based on the evidence in the light most favorable to the State, the State had failed to show that Tavares had possession or control of the firearm. Tavares also argued that the rear seat passenger, Frank Hampp (Hampp), [2] and the front seat passenger, Orrin Simer (Simer), had the opportunity to place the weapon under the driver's seat. The court denied the motion. Tavares also renewed his motion to suppress, which was denied.

On October 15, 2010, Tavares renewed his motion for judgment of acquittal, which the circuit court denied. On the same day, the parties made their closing arguments to the jury. The deputy prosecuting attorney (DPA) argued, in relevant part, that there was "mechanical stuff under the seat" that would have prevented Hampp from sliding the gun underneath the driver's seat.

On October 18, 2010, the jury returned its verdict finding Tavares guilty of Ownership or Possession Prohibited of Any Firearm Or Ammunition By a Person Convicted of Certain Crimes, pursuant to Hawaii Revised Statutes (HRS) § 134-7(b) and (h).

On appeal, Tavares contends: (1) the circuit court erred in denying his motion to suppress because the police lacked reasonable suspicion to stop his vehicle; (2) the circuit court erred in denying his motions for judgment of acquittal because there was insufficient evidence that Tavares knowingly possessed the firearm and ammunition; and (3) the DPA committed prosecutorial misconduct during the State's closing argument by arguing facts not in evidence.

For the reasons discussed below, we vacate the Judgment and remand this case to the circuit court for further proceedings.

I. Motion To Suppress

Tavares argues that the circuit court erred in denying his motion to suppress because he was subjected to an illegal search and seizure when the police stopped his vehicle. In particular, Tavares contends that police officers did not have reasonable suspicion to stop his vehicle.

We review de novo the circuit court's ruling on the motion to suppress. State v. Edwards, 96 Hawai'i 224, 231, 30 P.3d 238, 245 (2001).

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.

State v. Kaleohano, 99 Hawai'i 370, 375, 56 P.3d 138, 143 (2002). In addressing this issue, we consider both the record of the hearing on the motion to suppress and the trial record. State v. Kong, 77 Hawai'i 264, 266, 883 P.2d 686, 688 (App. 1994).

In determining the reasonableness of discretionary automobile stops, we apply the standard set forth in Terry v. Ohio, 392 U.S. 1 (1968). See State v. Bohannon, 102 Hawai'i 228,

237, 74 P.3d 980, 989 (2003). To justify an investigative stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. (quoting State v. Barnes, 58 Haw. 333, 338, 568 P.2d 1207, 1211 (1977)) (internal quotation marks omitted). In determining whether the officer had specific and articulable facts to justify an investigative stop, we consider the totality of the ...


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