State v. Walker

• Decision Date: 28 March 2012
• Docket Number: No. SCWC–29659.,SCWC–29659.
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Samuel WALKER, also known as Samuel Ahsan, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

126 Hawai'i 475

273 P.3d 1161

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Samuel WALKER, also known as Samuel Ahsan, Petitioner/Defendant–Appellant.

No. SCWC–29659.

Supreme Court of Hawai‘i.

March 28, 2012.

As Corrected April 24, 2012.

Henry P. Ting, Deputy Public Defender, on the briefs, for petitioner/defendant-appellant.

James B. Anderson, Deputy Prosecuting Attorney, on the briefs, for respondent/plaintiff-appellee.

ACOBA, DUFFY, and McKENNA, JJ.; with RECKTENWALD, C.J., concurring separately in the result, with whom NAKAYAMA, J., joins.

Opinion of the Court by DUFFY, J.

Petitioner/Defendant–Appellant Samuel Walker, also known as Samuel Ahsan, (Walker) filed a timely application for a writ of certiorari (Application), urging this court to review the Intermediate Court of Appeals' (ICA) October 18, 2011 judgment on appeal, which vacated the January 26, 2009 notice of entry of judgment of conviction and sentence (judgment) of the circuit court of the first circuit (circuit court),¹ and remanded the case with instructions to dismiss Count I without prejudice. The circuit court found Walker guilty of three offenses² including (Count I) Habitually Operating a Vehicle Under the Influence of an Intoxicant (HOVUII) in violation of Hawai‘i Revised Statutes (HRS) §§ 291E–61.5(a)(1) and (a)(2)(A) (2007 & Supp.2008).³

Walker's Application presents the following questions:

1. Did the ICA gravely erred [sic] in ordering Count 1 of the Felony Information to be remanded for dismissal without prejudice insofar as Count 1 adequately alleges an offense under HRS §§ 291E–61(a)(1) and (b)(1) (2007), and thus, pursuant to State v. Kekuewa, 114 Hawai‘i 411, 163 P.3d 1148 (2007), and State v. Ruggiero, 114 Hawai‘i 227, 160 P.3d 703 (2007), the ICA must reverse the conviction in Court 1 if there was insufficient evidence to convict Defendant of HRS §§ 291E–61(a)(1) and (b)(1) (2007) or remand this case to the circuit court for entry of judgment of conviction and resentencing pursuant to HRS §§ 291E–61(a)(1) and (b)(1) if there was sufficient evidence to convict Defendant?

2. Did the ICA gravely erred [sic] in failing to analyze and suppress Mr. Walker's un-Mirandized statement concerning his alcohol consumption that was made in response to custodial interrogation as part of a sufficiency analysis?

3. Did the ICA gravely erred [sic] in failing to analyze and exclude the results of Mr. Walker's performance of the Horizontal Gaze Nystagmus ("HGN") test despite the State's failure to lay the proper foundation pursuant to State v. Toyomura, 80 Hawai‘i 8, 27, 904 P.2d 893, 912 (1995), and State v. Ito, 90 Hawai‘i 225, 244, 978 P.2d 191, 210 (App.1999), as part of a sufficiency analysis?

Notably, Walker's Application only challenges his conviction of Count I, HOVUII.

We accepted Walker's Application for the limited purpose of clarifying and reconciling this court's opinions in State v. Ruggiero, 114 Hawai‘i 227, 160 P.3d 703 (2007), and State v. Kekuewa, 114 Hawai‘i 411, 163 P.3d 1148 (2007), in light of State v. Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009). Clarification of Ruggiero and Kekuewa in the context of Wheeler will ensure consistency among future OVUII cases. We hold that an appellate court's remand for entry of judgment of conviction and resentencing for a lesser-included offense must be based on a jurisdictionally valid lesser-included charge. Under this holding, Walker's HOVUII charge did not adequately allege the lesser-included offense of Operating a Vehicle Under the Influence of an Intoxicant (OVUII) as a first offender pursuant to HRS §§ 291E–61(a)(1) and (b)(1) (2007)⁴ because his charge failed to allege an essential element, specifically, the attendant circumstance that he operated a vehicle on a public road, way, street, or highway as mandated by Wheeler. Accordingly, we affirm the ICA's judgment and hold that the ICA did not err in vacating the circuit court's judgment and remanding Walker's case to the circuit court with instructions to dismiss Count I without prejudice. We write separately only to clarify and reconcile Ruggiero, Kekuewa, and Wheeler.

I. BACKGROUND

A. April 17, 2008 Incident

The charges against Walker arose out of an incident that occurred on April 17, 2008 in the City and County of Honolulu, State of Hawai‘i. At about 11:40 p.m., while assisting at a traffic accident near the corner of Kilani Avenue and North Cane Street in Wahiawa, Honolulu Police Department (HPD) Officer Morgan Hill (Officer Hill) heard "a loud screeching of tires" and an accelerating engine sound come from Walker's vehicle. Officer Hill observed Walker's vehicle accelerate at a high rate of speed and, based on his training and experience, believed Walker was driving at a higher rate than the twenty-five mile per hour posted speed limit. "Everything indicated to [Officer Hill] that it was not a safe execution." Based solely on his observation of Walker's apparent speeding,⁵ Officer Hill got into his vehicle and pursued Walker at an "extremely high rate of speed" in order to reach him. Officer Hill activated his blue light and Walker pulled over.

After stopping Walker's vehicle and notifying police dispatch of the traffic stop, location, and Walker's license plate number, Officer Hill approached Walker's vehicle from the driver's side. Walker produced a Hawai‘i state ID.⁶ Officer Hill observed that Walker's eyes were red and glassy and his speech was slurred.⁷ Officer Hill also noted a strong odor of alcohol coming from Walker's breath when he spoke.⁸ Officer Hill asked Walker if he had been drinking and Walker answered "[o]nly about eight or nine beers. I'm okay, and I live just right over there." Officer Hill testified that Walker's reported alcohol consumption did not factor into his decision to arrest Walker. He stated, "I really didn't want to base my arrest on anything, other than how [Walker] was going to perform the field sobriety exercise. At that point when I was able to determine whether I believed him to be impaired or not, then, I would make a judgment on whether or not to arrest, because anybody can say anything."

At this time, Officer Hill also noticed an open, "sweating" beer bottle located in the center console of Walker's vehicle.⁹ Based on the totality of this information, Officer Hill believed Walker could be impaired from alcohol consumption. Accordingly, Officer Hill asked Walker if he was willing to participate in a standardized field sobriety test (SFST) and Walker consented.¹⁰

At the time of the incident, Officer Hill had been employed by HPD for thirteen years and, during that time, he handled several hundred OVUII cases "either as the initial officer or[,] at the very least, as a participating officer of some sort." As part of his training with HPD, Officer Hill was trained to conduct and evaluate SFSTs. As part of the SFST education, Officer Hill received classroom and workshop training to administer and evaluate the Horizontal Gaze Nystagmus (HGN) test,¹¹ the "walk and turn" test, and the "one-leg-stand" test. Officer's Hill's SFST training was conducted in accordance with National Highway Traffic Safety Administration (NHTSA) standards.

After Walker consented to participate in the SFST, Officer Hill "asked him if he was wearing contacts, if he was on any medication, if he was epileptic, diabetic, had [an] artificial eye, fake leg, was under the care of a doctor or dentist at that time[,]" or "had any physical defect or speech impediments[.]" Walker indicated that he had no medical condition.¹² Officer Hill explained to Walker that his ability to follow instructions would be included in Officer Hill's evaluation of the SFST.

Officer Hill administered the HGN and "walk and turn" portions of the field sobriety exercise in accordance with his training and NHTSA standards. The HGN test revealed that Walker exhibited equal eye tracking and equal pupil size but lacked smooth pursuit in both eyes, in both directions. Also, Walker showed "heavy nystagmus

" prior to forty-five degrees. During the walk and turn test, Walker misstepped, or had space in between his heel and toe, on two of the first nine steps and raised his arms during several steps.¹³ Walker refused to take the one-leg-stand portion of the SFST.

B. Walker's Circuit Court Proceedings

On April 21, 2008, the State charged Walker by Felony Information and Non–Felony Complaint (Felony Information):

COUNT I: On or about the 17th day of April, 2008, in the City and County of Honolulu, State of Hawai‘i, SAMUEL WALKER, also known as SAMUEL AHSAN, a habitual operator of a vehicle while under the influence of an intoxicant, did operate or assume actual physical control of a vehicle while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to guard against casualty, thereby committing the offense of Habitually Operating a Vehicle Under the Influence of an Intoxicant, in violation of Sections 291E–61.5(a)(1) and 291E–61.5(a)(2)(A) of the Hawai‘i Revised Statutes.

Officer Hill confirmed with HPD dispatch that Walker, under his alias Samuel Ahsan, had three OVUII convictions within the preceding ten years. Attached to the Felony Information, HPD Officer Benjamin Moszkowicz submitted a declaration stating:

A check with both the Criminal Justice Information System, as well as court records of the District Court of the First Circuit, State of Hawai‘i, revealed that on April 17, 2008, Walker had three (3) prior convictions within the State of Hawai‘i for Operating a Vehicle Under the Influence of an Intoxicant, and/or Driving Under the Influence of Intoxicating Liquor under HPD Report Numbers 06–408360, 03–515849[,] and 03–389761 and that these convictions occurred between April 17, 1998 and April 17, 2008.

During the circuit court proceedings, Walker filed a Motion to Suppress Evidence and Statements (Motion to Suppress) on May 27, 2008. Specifically, Walker moved to suppress his statement to Officer Hill that he consu...