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State v. Wakamoto

Supreme Court of Hawaii

December 13, 2018

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
TYLER K. WAKAMOTO, Petitioner/Defendant-Appellant.


          Earle A. Partington, for petitioner

          Justin P. Haspe, DPA for respondent



          McKENNA, J.

         I. Introduction

         This 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).[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."

         After 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")[2] 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) (SDO).

         In his 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?

         Legal 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.[3] 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.

         Despite 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"[4] 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.

         Accordingly, 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.

         II. Background

         A. Factual Background and District Court Proceedings

         In a 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.

         According 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.

         Officer 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 scene.

         At 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.
Q. Okay.
[Prosecutor]: And may the record reflect that I'm showing defense counsel.
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 you're done.
A. Okay.
Q. And I'm taking the report back.
Officer, has your memory been refreshed?
A. Yes.
Q. Okay. And do you recall where the location of the traffic stop was?
A. Yes.
Q. Okay. And where was that, sir?
A. Was front -- was on Kalakaua fronting the Moana Surfrider hotel.

         The 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 Lancer.

         Officer 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 ...

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