CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000873; CASE NO. 1DTA-15-05435)
A. Partington, for petitioner
P. Haspe, DPA for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
appeal arises from the Defendant Tyler K. Wakamoto's
conviction for the offense of "Operating a Vehicle under
the Influence of an Intoxicant" ("OVUII") in
violation of Hawai'i Revised Statutes ("HRS")
§ 291E-61(a) (1). The issue on certiorari concerns
foundational requirements for the admission of testimony
under Hawai'i Rules of Evidence ("HRE") Rule
612, when a witness testifies after reviewing a "Writing
used to refresh memory."
Honolulu Police Department ("HPD") Officer Manueli
Kotobalavu ("Officer Kotobalavu" or "the
Officer") reviewed his report for the second time while
testifying over defense objection, the District Court of the
First Circuit ("district court") allowed the
Officer to testify regarding Wakamoto's field sobriety
test without a foundation having been laid that his memory
had been refreshed by reviewing the report. In its October
20, 2017 Summary Disposition Order ("SDO"), the
Intermediate Court of Appeals ("ICA") affirmed
Wakamoto's conviction, stating that no legal authority
requires the laying of such a foundation. See State v.
Wakamoto, No. CAAP-16-0000873, at 4 (App. Oct. 20, 2017)
certiorari application ("Application"), Wakamoto
reasserts a question he had posed to the ICA:
Whether the ICA gravely erred in holding that the district
court did not err in denying Wakamoto's objection to an
officer's testimony in an OVUII case as refreshed memory
when the officer had already reviewed his report once to
answer the prosecutor's questions about the standardized
field sobriety test?
authority requires that before testimony is admitted pursuant
to HRE Rule 612 after a witness reviews a writing while
testifying for the purpose of refreshing memory, an
evidentiary foundation must be laid establishing that the
witness's memory has actually been
refreshed. Therefore, the ICA erred by indicating
that no legal authority exists requiring that such a
foundation be laid, and the district court erred by admitting
Officer Kotobalavu's testimony regarding Wakamoto's
field sobriety test over defense objection without requiring
the proper evidentiary foundation.
evidentiary error, an appellate court may affirm a judgment
of a lower court on any ground in the record that supports
affirmance. See State v. Fukagawa, 100 Hawai'i
498, 506, 60 P.3d 899, 907 (2002) (citations omitted). After
the defense objected to Officer Kotobalavu again reviewing
his report and questioned whether he had an independent
recollection, the deputy prosecuting attorney raised the
possibility that the officer's testimony would be
admissible under HRE Rule 802.1(4) governing "Past
recollection recorded" if it was not otherwise
admissible under HRE Rule 612. The State of Hawai'i
("the State"), however, did not alternatively argue
HRE Rule 802.1(4) to the ICA or to this court, and it is
unclear whether the testimony at issue would have been
admissible on this basis. In addition, the erroneous
admission of evidence is not harmless beyond a reasonable
doubt if there is a reasonable possibility that the error
might have contributed to the conviction. See State v.
Subia, 139 Hawai'i 62, 69, 383 P.3d 1200, 1207
(2016). In this case, the district court specifically stated
it relied in part on Officer Kotobalavu's improperly
admitted testimony as a basis for convicting Wakamoto - thus,
the improperly admitted testimony contributed to the
conviction. Therefore, the evidentiary error cannot be deemed
harmless beyond a reasonable doubt.
we vacate the ICA's November 22, 2017 Judgment on Appeal
entered pursuant to its SDO, as well as the district
court's Notice of Entry of Judgment and/or Order and
Plea/Judgment, and we remand this case to the district court
for further proceedings consistent with this opinion.
Factual Background and District Court Proceedings
complaint dated December 21, 2015, the State charged Wakamoto
with committing the offense of OVUII on December 2, 2015, in
violation of HRS § 291E-61(a)(1). A bench trial took
place on September 20, 2016 and November 17, 2016. At trial,
HPD Officer Jesse Takushi ("Officer Takushi") and
Officer Kotobalavu testified for the State.
to the officers' testimonies, on December 2, 2015, at
about 2:35 a.m., on Kalakaua Avenue fronting the Moana
Surfrider Hotel, Officer Takushi conducted a traffic stop on
a vehicle he observed twice unsafely crossing a broken white
line. When Officer Takushi approached the vehicle, he
observed that Wakamoto's eyes were red and watery and
that his pupils appeared dilated, and he noticed a strong
alcoholic-type odor coming from Wakamoto. According to
Officer Takushi, Wakamoto's responses were delayed and
slurred, and he could not locate his registration paperwork.
Wakamoto apparently repeatedly picked up and dropped his
license and insurance paperwork, but he did hand them to
Officer Takushi in a timely manner.
Takushi testified that when Wakamoto stepped out of the
vehicle, he stated on his own accord that he "didn't
have anything to drink," but Officer Takushi continued
to smell an alcoholic odor. At about this point of the
traffic stop, Officer Kotobalavu, responding to Officer
Takushi's radio request for assistance, arrived on the
start of his trial testimony more than nine months after the
arrest, Officer Kotobalavu could not recall the location of
the traffic stop:
[By the Prosecutor:]
Q. Do you recall the location of this traffic stop?
A. No, sir, I don't recall at this time.
Q. Is there something that would help to refresh your memory?
A. Yes, my report.
[Prosecutor]: And may the record reflect that I'm showing
By [the Prosecutor]:
Q. So, Officer, I'm going to hand you your police report.
Just go ahead and look at it silently and look up at me when
Q. And I'm taking the report back.
Officer, has your memory been refreshed?
Q. Okay. And do you recall where the location of the traffic
Q. Okay. And where was that, sir?
A. Was front -- was on Kalakaua fronting the Moana Surfrider
record does not reflect how long Officer Kotobalavu reviewed
his report before resuming his testimony, but he testified
that he thought Wakamoto's car was a black two-door
Kotobalavu then testified that as he spoke to Wakamoto, he
smelled alcohol and saw that Wakamoto had red, watery eyes.
He testified that Wakamoto was then directed to walk about
fifteen feet away from his car so that Officer Kotobalavu
could conduct a field sobriety test on the dry concrete
sidewalk in front of the Moana Surfrider, which was free of
debris, well lit, and did not have much foot traffic. He
further testified that before conducting the field sobriety
test, Officer Kotobalavu asked Wakamoto a series of questions
regarding Wakamoto's health. Officer Kotobalavu also
repeatedly asked ...