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State v. Tsujimura

Supreme Court of Hawaii

May 31, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
LESTER S. TSUJIMURA, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001302; CASE NO. 1DTA-14-00512)

          Alen M. Kaneshiro for petitioner

          Sonja McCullen for respondent

          McKENNA, POLLACK, AND WILSON, JJ., AND NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

          OPINION

          POLLACK, J.

         It has been settled for decades that the right to remain silent is a fundamental component of the right against compelled self-incrimination guaranteed by article I, section 10 of the Hawai'i Constitution. What has been subject to disagreement among several jurisdictions is the point in time at which the right to remain silent attaches. In 2008, this court, in State v. Mainaaupo, 117 Hawai'i 235, 178 P.3d 1 (2008), held that the right to remain silent attaches at least as of the time that a person is arrested. In this case, the primary question that we resolve is the one that the Mainaaupo court left open: whether the right to remain silent attaches prearrest and, if so, in what manner and to what extent may prearrest silence be utilized by the State in a criminal trial.[1]

         I. FACTS AND PROCEDURAL BACKGROUND

         A. Pretrial

         On February 7, 2014, Lester Tsujimura was charged by complaint with Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(4) (2007 & Supp. 2012).[2] Tsujimura moved to dismiss the complaint for failure to state an offense, arguing that the complaint was insufficient for failing to define the term "alcohol" and thus did not sufficiently apprise him of what he must be prepared to meet at trial. [3]

         At the hearing on the motion, [4] Tsujimura argued that the statutory definition of alcohol includes only alcohol that was produced through distillation, and, as such, the definition must be included in the complaint. The State maintained that the motion to dismiss should be dismissed as untimely. On the merits, the State contended that the definition of "alcohol" also includes ethyl alcohol regardless of origin and that a person of common understanding would understand what "alcohol" means within the OVUII statutory scheme. In reply to the State's timeliness argument, Tsujimura argued that the motion to dismiss for failure to state an offense is jurisdictional and may be raised at any time.

         The District Court of the First Circuit (district court) dismissed the motion to dismiss as untimely. Alternatively, the court determined that the statutory definition of alcohol is not restricted to alcohol derived from distillation and that a person of common understanding would understand what alcohol means even if the complaint does not set forth its statutory meaning. The district court reasoned that even though the plain language of the statutory definition of alcohol appears to include only alcohol produced by distillation, the court would "ignore the plain reading . . . to avoid an absurd result" in which only persons impaired by hard liquor could be prosecuted for OVUII.

         B. Trial

         At trial, Officer Thomas Billins of the Honolulu Police Department testified that, on January 15, 2014, at approximately 12:05 a.m., he saw Tsujimura driving a white SUV on the Moanalua Freeway just past the Ala Kapuna overpass. According to Officer Billins, Tsujimura entered the shoulder lane several times, "at times straddling the . . . right-most lane and the right shoulder."

         Officer Billins turned on his light and sirens to notify Tsujimura that he was being stopped, but Tsujimura was not responding, so Officer Billins used the loudspeaker system in his police car to request Tsujimura to pull over. After Tsujimura stopped, Officer Billins approached to inform him of the reason he was stopped and requested his driver's license, registration, and insurance information. Tsujimura immediately produced his driver's license, but he had difficulty producing his registration and insurance information and had to fumble through a stack of documents.

         Officer Billins testified that Tsujimura had a very flush red face, his speech was slurred, and he had red and watery eyes. Officer Billins added that he smelled an odor of alcoholic beverage emitting from Tsujimura's breath or from inside the vehicle cabin. The officer related that he requested that Tsujimura participate in standardized field sobriety tests (FSTs), to which Tsujimura agreed. When asked whether he noticed Tsujimura having had any difficulty exiting his vehicle, Officer Billins stated that he did not "see him limping or anything like that, " that he got out of his vehicle normally, and that he did not "fall down or anything." Before performing the FSTs, Tsujimura told Officer Billins that he had an old injury to his left knee, "[s]omething about his ACL and it was a bad knee, " and that he was taking medication for his high blood pressure and diabetes. [5]

         Officer Billins testified that, while he was conducting the horizontal gaze nystagmus test, he observed that Tsujimura's face was flushed and red and that he had a slight sway from left to right. Over the objection of the defense, Officer Billins testified as to Tsujimura's performance on the walk-and-turn test.[6] Officer Billins stated that Tsujimura broke his heel-to-toe stance twice, stepped off the line five times, failed to walk in a heel-to-toe fashion on all steps, failed to keep his hands six inches or less from his side, stumbled while turning, and had to raise his arm above shoulder level for balance, all of which did not comply with Officer Billins' instructions and demonstration of the walk-and-turn test. When asked about Tsujimura's performance of the one-leg stand, Officer Billins stated that Tsujimura was unable to keep his foot six inches above the ground, put his foot down on several occasions, did not raise his foot off the ground in the first ten seconds of the test, was unable to count after several prompts to begin counting, was unable to maintain his hands down at his side, and did not follow instructions.[7]

          Officer Billins also testified that, having been apprised of Tsujimura's injury to his left knee, he suggested, during the one-leg stand, that "if [Tsujimura] were to choose a leg, it may be wise to lift his injured leg because he would have to put weight on the leg that he's standing on." Officer Billins added that Tsujimura raised his left leg during the one-leg stand.

         On cross-examination, Officer Billins stated that he followed Tsujimura's vehicle for about two miles before Tsujimura finally pulled over. The officer testified that Tsujimura was not changing lanes, was not going over the speed limit, was not slowing down or speeding up, did not follow vehicles too closely, and did not make any inconsistent signals. Officer Billins related that it took Tsujimura only eight seconds to pull over from the time he turned on his sirens and lights. Officer Billins noted that out of the 24 National Highway Traffic Safety Administration (NHTSA) visual detection clues, Tsujimura exhibited only one--trouble maintaining lane position.[8] Officer Billins testified that Tsujimura did not repeat questions or comments, lean on the vehicle, or provide incorrect information or change his answers. Officer Billins indicated that red, watery eyes could be caused by a number of factors other than alcohol impairment, such as fatigue and long days at work. Officer Billins also expressed that, based on his training and experience and the NHTSA, odor of alcohol is a poor indicator of a person's level of impairment and has no bearing on the amount and nature of the alcohol that the person consumed.

         Tsujimura's counsel asked Officer Billins about his testimony on direct examination regarding Tsujimura's injury. According to Officer Billins, Tsujimura stated that he had an injury on the left leg or left knee and a torn ACL on an unspecified leg. Officer Billins said that, when he recommended that Tsujimura raise his left leg for the one-leg stand, he was not aware "whether raising a leg puts more physical strain on your ACL than keeping it planted" and "whether [Tsujimura's] knee injury or ACL injury affected his ability to perform the" one-leg stand and walk-and-turn.

         On redirect examination, the prosecutor asked Officer Billins whether Tsujimura, while exiting his car, explained that he could not get out of the car due to an ACL injury. The relevant exchange between the prosecutor and Officer Billins was as follows:

[Prosecutor:] . . . You testified that when the defendant left the car he didn't have any difficulty exiting the car.
[Officer Billins:] Yes.
[Prosecutor:] So did the defendant at that time explain to you he couldn't get out of the car because of an ACL injury?
[Defense Counsel:] Objection, Your Honor. It comments on the defendant's right to remain silent.
[The Court:] It's overruled. Let's see if the statement comes out.
[Prosecutor:] Do you recall if the defendant indicated to you he would have difficulty exiting the car because of his previous leg injury?
[Officer Billins:] No statements were made.
[Defense Counsel:] And Your Honor, that's exactly what I'm talking about. The Supreme Court -- there's Supreme Court case law that says that the prosecutor cannot comment or elicit testimony that comments on the defendant's right to remain silent. He's under no obligation to speak or say anything to Officer Billins.
[The Court:] That's true here in court.
[Defense Counsel:] Correct.
[The Court:] There's no motion to suppress his statements at the scene of the stop.
[Defense Counsel:] No. I understand that. But during the course of the trial, [the prosecutor's] trying to imply that he had some obligation to tell Officer Billins something . . .
[The Court:] I understand what you're saying. Your objection's overruled.

(Emphases added.)

         Tsujimura's objection to the prosecutor's line of questioning was thus based on the ground that the question sought and elicited a response that commented on Tsujimura's right to remain silent. The district court overruled the objection on the grounds that the prosecutor's question was not implying that Tsujimura was under obligation to speak in court, which the district court concluded was inappropriate; rather, the prosecutor's question was implying that Tsujimura had some obligation to say something at the time of the stop, which the district court intimated was permissible.

         Following Officer Billins' testimony, the State rested and Tsujimura moved for a judgment of acquittal, arguing that the State failed to present evidence as to the kind of alcohol that allegedly impaired his faculties. The district court denied the acquittal motion, and Tsujimura rested without presenting any evidence.

         In ruling on the case, the district court found that the car that Tsujimura was driving was straddling the line separating two lanes on the Moanalua freeway; that the eight seconds it took for Tsujimura to pull over was still a fair amount of time given that the police lights were activated; that Tsujimura's speech was slurred, his face was flushed and red, and his eyes were red and watery; and that when Tsujimura "alighted from the car, he did not indicate any difficulty walking." The district court also made findings consistent with Officer Billins' testimony as to Tsujimura's performance on the FSTs. Based on the totality of the circumstances, including the manner in which Tsujimura was driving and Tsujimura's physical condition that Officer Billins observed, the district court concluded that the State proved beyond a reasonable doubt all the elements of the OVUII offense charged under HRS § 291E-61(a)(1). [9]

         II. ICA PROCEEDINGS

         Tsujimura filed a notice of appeal to the Intermediate Court of Appeals (ICA), challenging the following rulings of the district court: (1) denial of his motion to dismiss the OVUII charge for failure to define the term "alcohol" in the complaint; (2) admission of Officer Billins' testimony regarding Tsujimura's failure to state that his injury would prevent him from getting out of his car; (3) denial of his motion for judgment of acquittal on the grounds that there was insufficient evidence that he had consumed "alcohol"; and (4) denial of his motion for judgment of acquittal on the grounds that there was insufficient evidence to establish that he was under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty.

         The ICA in its published opinion determined that the statutory definition of "alcohol" under HRS § 291E-1 (2007 & Supp. 2012) is not limited to alcohol derived from distillation but that, based on the statute's plain meaning, it "specifically includes ethyl alcohol, which is 'the intoxicating agent in beer, wine and other fermented and distilled liquors.'" State v. Tsujimura, 137 Hawai'i 117, 120, 366 P.3d 173, 176 (App. 2016) (quoting Ethyl Alcohol, Webster Dictionary, http://www.webster-dictionary.net/definition/ethyl alcohol (last visited May 23, 2017)).[10] The ICA stated that, if the meaning of "alcohol" excludes beer and wine and other alcoholic products not derived from distillation, the purpose of the legislature in enacting the OVUII statutes would be undermined in that "drivers who became drunk as the result of consuming beer or wine would not be subject to prosecution." Id. at 120-21, 366 P.3d at 176-77. The ICA noted that Tsujimura's statutory construction would frustrate "the entire administrative and criminal statutory scheme set forth in HRS Chapter 291E." Id. The ICA also concluded that the statutory definition of "alcohol" is consistent with its ordinarily understood meaning and that "there was no need for the State to define the term 'alcohol' in the OVUII charge in order to give Tsujimura fair notice of the charge against him." Id. at 121, 366 P.3d at 177. Accordingly, the ICA held that the complaint charging Tsujimura with OVUII was not deficient for failing to set forth the statutory definition of "alcohol." Id.

         As to Tsujimura's argument that his right to remain silent was violated, the ICA observed that Hawai'i has not resolved whether there exists a constitutional right to prearrest silence. Id. at 123, 366 P.3d at 179. However, the ICA determined that it was not necessary to reach this issue because Officer Billins' testimony did not constitute "an impermissible comment on Tsujimura's assertion of his right to remain silent." Id. In evaluating Tsujimura's contention, the ICA applied the test set forth in State v. Padilla,57 Haw. 150, 158 P.2d 357 (1976), and considered whether the prosecutor's question and Officer Billins' answer to it were manifestly intended or of such character that the district court would naturally and necessarily take it to be a comment on Tsujimura's exercise of his right to remain silent. Tsujimura, 137 Hawai'i at 123, 366 P.3d at 179. The ICA reasoned that the question--"Do you recall if the defendant indicated to you he would have difficulty exiting the car because of his previous leg injury?"--and Officer Billins' answer that "[n]o statements were made" "were directed at whether there was any indication that Tsujimura's prior knee injury affected ...


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