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State v. Nakamitsu

Supreme Court of Hawaii

June 29, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
RYAN NAKAMITSU, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001151; CASE NO. 1DTA-14-02783)

          Alen M. Kaneshiro for Petitioner/Defendant- Appellant.

          Keith M. Kaneshiro Sonja P. McCullen for Respondent/Plaintiff-Appellee.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          WILSON, J.

         Petitioner/Defendant-Appellant Ryan Nakamitsu (Nakamitsu) was convicted of one count of Operating a Vehicle Under the Influence of an Intoxicant (OVUII) in violation of Hawai'i Revised Statutes (HRS) § 291E-61(a)(1) and/or § 291E-61(a)(3).[1] The Intermediate Court of Appeals (ICA) vacated the conviction for OVUII based on HRS § 291E-61(a)(1), reversed the conviction for OVUII based on HRS § 291E-61(a)(3), and remanded for proceedings consistent with its opinion.

         In essence, Petitioner Nakamitsu argues that his conviction under HRS § 291E-61(a)(1) should be reversed rather than vacated and remanded for a new trial. Four principal issues are presented on certiorari. The first three issues are raised by Nakamitsu: (1) whether the ICA gravely erred in holding that the charge was not fatally defective for failing to include the statutory definition of the term "alcohol"; (2) whether the ICA gravely erred in holding that the district court did not err in denying Nakamitsu's motion to strike Officer Desiderio's testimony; and (3) whether the ICA gravely erred in holding that there was substantial evidence to support Nakamitsu's conviction under HRS § 291E-61(a)(1). We consider sua sponte a fourth issue, whether the district court's admonishment of Nakamitsu for his decision to pursue trial violated his constitutional rights to due process and against self-incrimination.

         We hold that the ICA did not err concerning the first and third issues. We find it unnecessary to consider the second issue as to whether the ICA erred in affirming the district court's denial of Nakamitsu's motion to strike Officer Desiderio's testimony. On the fourth issue, we find that the district court's admonishment of Nakamitsu may have violated his constitutional rights to due process and against self-incrimination. We affirm the judgment of the ICA vacating the conviction for OVUII in violation of HRS § 291E-61(a)(1), reversing the conviction for OVUII in violation of HRS § 291E-61(a)(3), and remanding for a new trial.

         I. BACKGROUND

         A. District Court Proceedings

         Nakamitsu is an engineer at Pearl Harbor. In June, 2014, the State charged Nakamitsu with one count of Operating a Vehicle Under the Influence of an Intoxicant as a first time offender.[2]

         Nakamitsu filed a Motion to Dismiss Count 1 for Failure to State an Offense.[3] He argued that the OVUII charge in Count 1 was insufficient because it failed to include the definition of "alcohol" as defined in HRS § 291E-1. The State opposed the Motion, arguing that the Complaint's reference to "alcohol" was consistent with its commonly-understood meaning. After a hearing, the court denied the Motion.[4]

         1. Direct Examination of Officer Desiderio

         At trial, Officer Desiderio testified that he responded to a vehicular accident on June 1, 2014 around 4:50 a.m. Upon arriving at the scene, he saw a vehicle on the side of the road in front of a light post that had fallen to the ground. A man (later identified as Nakamitsu) walked from the vehicle and knelt on the side of the road. Nakamitsu told Officer Desiderio that he had been driving the vehicle, and then began crying. Officer Desiderio detected the smell of alcohol on Nakamitsu's body and breath. Officer Desiderio testified that Nakamitsu was attempting to balance himself and uttering something approximating "I'm fucked, I'm fucked." Officer Desiderio then conducted a Standardized Field Sobriety Test (SFST). Nakamitsu exhibited six clues, and failed the Horizontal Gaze Nystagmus (HGN) portion of the test. According to Officer Desiderio, during the Walk-and-Turn section of the test Nakamitsu kept trying to keep his balance.

         On direct examination, in regard to the Walk-and-Turn and One-Leg Stand segments of the test, the State refreshed Officer Desiderio's recollection with a copy of his SFST report:

[STATE]: Do you remember what -- any clues exhibited during the instructional portion of the . . . [Walk and Turn] test?
[OFFICER DESIDERIO]: Can't recall it. I have it in my report that I submitted.
[STATE]: Would anything refresh your recollection?
[OFFICER DESIDERIO]: Yes, my report that I submitted.
[STATE]: Officer, is -- you recognize this document?
[OFFICER DESIDERIO]: Yes, ma'am.
[STATE]: What is this?
[OFFICER DESIDERIO]: This is -- what we use for [sic] SFST sheet, the standard --
[STATE]: Is this the . . .
[S]FST sheet you used that night?
[OFFICER DESIDERIO]: Yes, ma'am.
[STATE]: Can you refresh your recollection.
[OFFICER DESIDERIO]: Okay.

         After a further exchange regarding the Walk-and-Turn segment of the test, the State then asked Officer Desiderio about Nakamitsu's performance on the One-Leg Stand test:

[STATE]: And do you recall what you observed?
[OFFICER DESIDERIO]: Yes. Everything is recorded in the report I submitted.
[STATE]: All right . . . . [H]ow many clues can be exhibited? Do you remember?
[OFFICER DESIDERIO]: No, I don't. I --
[STATE]: Would you like to --
[STATE]: -- refresh your memory --
[STATE]: -- with your report?
[OFFICER DESIDERIO]: -- yes.
[STATE]: Do you independently remember this, once you looked at your report? Do you remember how [Nakamitsu] did on the test?
[OFFICER DESIDERIO]: Yeah, somewhat remember.
[STATE]: Okay. And do you remember what you observed about how he did the test?
[OFFICER DESIDERIO]: Basically, he hops. I -- I do remember [him] putting his foot down at 19 seconds and [sic] kind of swayed sideways. And then -- yeah, he wasn't able ...

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