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State v. Abrigo

Supreme Court of Hawaii

June 28, 2019

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
NINO ABRIGO, Petitioner/Defendant-Appellant.


          Susan Arnett Taryn R. Tomasa for petitioner

          Brian R. Vincent For respondent



          POLLACK, J.

         An exception to the evidentiary rule against hearsay typically allows public records to be admitted into evidence to prove the truth of their contents, as such documents are generally presumed to be accurate and reliable. The rule contains two exclusions, however, that collectively prohibit using the public record exception to admit observational and investigative police reports against defendants in criminal cases. These exclusions ensure that law enforcement personnel testify in person when the contents of their police reports are sought to be admitted as evidence in a trial, thereby allowing the defendant an opportunity to confront and cross-examine police officers regarding statements in their reports.

         However, another hearsay exception in our evidentiary rules permits the previously recorded recollections of a witness to be read into evidence when the witness is unable to sufficiently recall the subject matter of the statements to testify fully and accurately at trial. Applied literally, this second exception would appear to provide a path to circumvent the prohibition on the use of observational and investigative police reports against defendants in criminal cases. This path of circumvention oddly would only occur when the law enforcement official who prepared or signed-off on the report testifies to insufficient recollection of the events underlying the report to be subject to meaningful cross-examination. Such a situation occurred in this case, resulting in the defendant being convicted on the sole basis of a police report authored by a law enforcement officer who testified at trial that he could no longer remember the material facts underlying the defendant's arrest.

         We now hold that records excluded by the public records exception cannot be read into evidence based on an alternative evidentiary ground. This is to say that litigants may not utilize another hearsay exception as a back door to bypass the restrictions contained in the public records hearsay exception. Accordingly, we vacate the defendant's conviction and remand the case for further proceedings.


         A. Trial

         On May 26, 2016, the State filed a criminal complaint against Nino Abrigo in the Hawai'i District Court of the First Circuit (district court), charging him with operating a vehicle under the influence of an intoxicant (OVUII) in violation of Hawai'i Revised Statutes (HRS) § 291E-61(a)(1).[1] Abrigo pleaded not guilty, and a bench trial commenced on August 1, 2016.[2]

         The only witness called by the State was Officer Aaron Ostachuk of the Honolulu Police Department. Due to a series of continuances, Officer Ostachuk's testimony was delivered on three separate days over the course of five months.

         1. August 1, 2016

         On the first day that he testified, Officer Ostachuk related that he first encountered Abrigo at approximately 3:00 a.m. on May 15, 2016, while on traffic patrol in the Dillingham-Kalihi area of the island of Oahu. The officer stated that he saw the vehicle driven by Abrigo commit two traffic violations; first, the vehicle drifted across the broken white lines that separated its lane from other lanes going the same direction, then the vehicle swerved back to straddle the solid yellow lines separating the lane from oncoming traffic. Officer Ostachuk testified that he initiated a traffic stop of the vehicle based on these infractions.

         When he approached the driver-side window, Officer Ostachuk stated, he noticed that Abrigo's eyes were "red, watery, and glassy" and the smell of alcohol was emanating from inside the vehicle. Abrigo complied with his request to exit the vehicle, the officer explained, and agreed to take the standard field sobriety test (SFST).[3]

         Officer Ostachuk testified that Abrigo followed his instructions during the first part of the SFST, the horizontal gaze nystagmus test (HGN). Officer Ostachuk explained that after he administered the HGN, he placed Abrigo in the starting position for the "walk-and-turn" test--the second part of the SFST--and explained the instructions, telling Abrigo not to start walking until he was told to begin.[4] While the officer was relating the instructions, he testified, Abrigo began to sway from side to side. Abrigo also started to walk before being told to do so, the officer stated. Although Abrigo complied when he was told to begin walking, the officer said, he exhibited several clues of intoxication: he stopped three times, he missed seven heel-to-toe steps, he raised his arms four times, and he did not take the correct number of steps. Additionally, Officer Ostachuk stated that Abrigo stepped to the side seven times, then clarified that because "there [was] no straight line . . . long enough to use" at the location where he administered the SFST, he based this assessment on Abrigo's failure to "step[] one foot in front of another in a straight line."

         When Abrigo reached the "turn" part of the test, he was able to execute it, Officer Ostachuk testified. But when asked to describe Abrigo's turn, the officer said, "I do not recall. It was[] nothing out of the ordinary or I would note it down." Shortly thereafter, the trial was continued because it was late in the day. Although the transcript indicates trial was initially scheduled to continue on October 19, 2016, proceedings did not recommence until December 15, 2016, for reasons undisclosed in the record.

         2. December 15, 2016

         When the State resumed its direct examination of Officer Ostachuk on December 15, 2016, the officer stated that Abrigo was off-balance when completing the turn portion of the walk-and-turn test because "[h]e had his knees slightly bent." He explained that he interprets a person bending their knees as indicating "that they can't keep themselves upright in an up--in the standing position, and they use that bending in order to regain themselves." Officer Ostachuk then testified that he explained the instructions for the "one-legged stand" test, the third part of the SFST, and administered it.[5] He described several clues of intoxication that he said Abrigo exhibited during this test, including swaying, raising his arms, hopping after losing his balance, and putting his foot down.

         On cross-examination, defense counsel questioned Officer Ostachuk about his memory of Abrigo's traffic violations, and the officer testified that he could not remember the specific details. Specifically, he stated that he could not remember how far or for how long Abrigo crossed over the broken white line or straddled the solid yellow line. Officer Ostachuk also testified that he could not remember his exact reason for pulling Abrigo over without looking at the report that he created that documented his interaction with Abrigo.[6]

         When asked whether he "independently remember[ed] giving [Abrigo] the instructions" to the SFST, Officer Ostachuk answered, "[I]t's not something off the top of my head I remember specifically, . . . I just remember these--this is what I instruct people to do." The defense then asked Officer Ostachuk if he remembered "why [he] checked off the box 'starting too soon'" in his report, and he responded that he could not remember.

         Nor could Officer Ostachuk independently recall why he marked the box in his report indicating that Abrigo could not keep his balance during the walk-and-turn test. When asked directly if he could remember his reasoning, the officer responded, "No. It's just something that I observed at the time, and I checked off the box." When asked whether his testimony was "just based on that box being checked off" on his report, he answered, "That's correct."

         Defense counsel then asked, "Do you actually remember [that] h[e] stop[ped] walking? Or was that testimony based on what is contained in the report?" The court, sua sponte, did not allow the witness to answer because it said that the question was misleading. Outside of Officer Ostachuk's presence, the court clarified that it viewed the question as "blur[ing the] distinctions" between Officer Ostachuk's "memory four months ago when he testified and today." The "crux of the case," the court stated, was "not what he remembers today," but rather whether Officer Ostachuk was "testifying based on a present memory" or "just parroting what was in a report" on August 1 when he testified on direct examination.

         After Officer Ostachuk reentered the courtroom, defense counsel inquired at length as to whether his testimony on August 1 regarding the SFST had been based on his memory at the time or simply reviewing his report. Officer Ostachuk repeatedly replied that he did not recall what had been asked and what he had testified to during the August 1 examination, nor what he had remembered at that time. When defense counsel inquired into his present recollection, Officer Ostachuk stated that he did not have independent memory regarding any aspect of the SFST and could testify only based on what was written in his report. The trial was then continued again for reasons that are not reflected in the record.

         3. December 30, 2016

         On December 30, 2016, the defense resumed its cross-examination of Officer Ostachuk. The officer once more testified that he could not independently recall any details about Abrigo's performance on the SFST. He acknowledged that his testimony was solely based on looking at his report and the annotations it contained.[7] As to Abrigo's performance during the one-legged stand test, Officer Ostachuk again said that he did not recall whether he had had an independent recollection of Abrigo's performance when he had testified on August 1.

         Defense counsel moved to strike Officer Ostachuk's testimony about the SFST, arguing that the officer lacked independent recollection about the tests and therefore could not be effectively cross-examined. The court denied the motion and said that it would "not put on the record now, in the officer's presence, the reasons for that because he would still be testifying."

         During re-direct examination, the State asked Officer Ostachuk whether "the clues that [he] marked off on the SFST sheet reflect what [he] observed at the time that [he] actually administered the SFST," but the court sustained an objection by the defense. The State then elicited testimony indicating that Officer Ostachuk had a recollection of "other things that happened that day" that were not in his report. Specifically, Officer Ostachuk recalled having a conversation with Abrigo, that Abrigo was cordial and cooperative, and the type of car that Abrigo was driving. After Officer Ostachuk's testimony concluded, the State rested. The defense did not present any evidence.

         The court proceeded to find Abrigo guilty as charged. Although the court found that the officer had "very limited recollection" when he testified on December 15, 2016, and "almost no recollection" when he testified on December 30, 2016, it concluded that his testimony on August 1, 2016, "was a product of then-present recollection." The court also concluded that the defense had had an opportunity to effectively cross-examine the officer. Abrigo was sentenced to 72 hours of community service and ...

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