400 P.3d 500 (Hawai'i 2017), SCWC-14-0001302, State v. Tsujimura
|Citation:||400 P.3d 500, 140 Hawai'i 299|
|Opinion Judge:||POLLACK, J.|
|Party Name:||STATE OF HAWAI'I, Respondent/Plaintiff-Appellee, v. LESTER S. TSUJIMURA, Petitioner/Defendant-Appellant|
|Attorney:||Alen M. Kaneshiro, for petitioner. Sonja McCullen, for respondent.|
|Judge Panel:||McKENNA, POLLACK, AND WILSON, JJ., AND NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS. NAKAYAMA, J. NAKAYAMA, J. IN WHICH RECKTENWALD, C.J., JOINS|
|Case Date:||May 31, 2017|
|Court:||Supreme Court of Hawai'i|
[Copyrighted Material Omitted]
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-14-0001302; CASE NO. 1DTA-14-00512.
State v. Tsujimura, 137 Haw. 117, 366 P.3d 173, (Haw. Ct.App., Jan. 27, 2016)
Alen M. Kaneshiro, for petitioner.
Sonja McCullen, for respondent.
McKENNA, POLLACK, AND WILSON, JJ., AND NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS.
[140 Hawai'i 302] POLLACK, J.
It has been settled for decades that the right to remain silent is a fundamental component of the right against compelled self-incrimination guaranteed by article I, section 10 of the Hawai'i Constitution. What has been subject to disagreement among several jurisdictions is the point in time at which the right to remain silent attaches. In 2008, this court, in State v. Mainaaupo, 117 Hawai'i 235, 178 P.3d 1 (2008), held that the right to remain silent attaches at least as of the time that a person is arrested. In this case, the primary question that we resolve is the one that the Mainaaupo court left open: whether the right to remain silent attaches prearrest and, if so, in what manner and to what extent may prearrest silence be utilized by the State in a criminal trial.1
I. FACTS AND PROCEDURAL BACKGROUND
On February 7, 2014, Lester Tsujimura was charged by complaint with Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(4) (2007 & Supp. 2012).2 Tsujimura moved to dismiss the complaint for failure to state an offense, arguing that the complaint was insufficient for failing to define the term " alcohol" and thus did not sufficiently apprise him of what he must be prepared to meet at trial.3
At the hearing on the motion,4 Tsujimura argued that the statutory definition of alcohol
[140 Hawai'i 303] includes only alcohol that was produced through distillation, and, as such, the definition must be included in the complaint. The State maintained that the motion to dismiss should be dismissed as untimely. On the merits, the State contended that the definition of " alcohol" also includes ethyl alcohol regardless of origin and that a person of common understanding would understand what " alcohol" means within the OVUII statutory scheme. In reply to the State's timeliness argument, Tsujimura argued that the motion to dismiss for failure to state an offense is jurisdictional and may be raised at any time.
The District Court of the First Circuit (district court) dismissed the motion to dismiss as untimely. Alternatively, the court determined that the statutory definition of alcohol is not restricted to alcohol derived from distillation and that a person of common understanding would understand what alcohol means even if the complaint does not set forth its statutory meaning. The district court reasoned that even though the plain language of the statutory definition of alcohol appears to include only alcohol produced by distillation, the court would " ignore the plain reading . . . to avoid an absurd result" in which only persons impaired by hard liquor could be prosecuted for OVUII.
At trial, Officer Thomas Billins of the Honolulu Police Department testified that, on January 15, 2014, at approximately 12:05 a.m., he saw Tsujimura driving a white SUV on the Moanalua Freeway just past the Ala Kapuna overpass. According to Officer Billins, Tsujimura entered the shoulder lane several times, " at times straddling the . . . rightmost lane and the right shoulder."
Officer Billins turned on his light and sirens to notify Tsujimura that he was being stopped, but Tsujimura was not responding, so Officer Billins used the loudspeaker system in his police car to request Tsujimura to pull over. After Tsujimura stopped, Officer Billins approached to inform him of the reason he was stopped and requested his driver's license, registration, and insurance information. Tsujimura immediately produced his driver's license, but he had difficulty producing his registration and insurance information and had to fumble through a stack of documents.
Officer Billins testified that Tsujimura had a very flush red face, his speech was slurred, and he had red and watery eyes. Officer Billins added that he smelled an odor of alcoholic beverage emitting from Tsujimura's breath or from inside the vehicle cabin. The officer related that he requested that Tsujimura participate in standardized field sobriety tests (FSTs), to which Tsujimura agreed. When asked whether he noticed Tsujimura having had any difficulty exiting his vehicle, Officer Billins stated that he did not " see him limping or anything like that," that he got out of his vehicle normally, and that he did not " fall down or anything." Before performing the FSTs, Tsujimura told Officer Billins that he had an old injury to his left knee, " [s]omething about his ACL and it was a bad knee," and that he was taking medication for his high blood pressure and diabetes.5
Officer Billins testified that, while he was conducting the horizontal gaze nystagmus test, he observed that Tsujimura's face was flushed and red and that he had a slight sway from left to right. Over the objection of the defense, Officer Billins testified as to Tsujimura's performance on the walk-and-turn test.6 Officer Billins stated that Tsujimura broke his heel-to-toe stance twice, stepped off the line five times, failed to walk in a heel-to-toe fashion on all steps, failed to keep his hands
[140 Hawai'i 304] six inches or less from his side, stumbled while turning, and had to raise his arm above shoulder level for balance, all of which did not comply with Officer Billins' instructions and demonstration of the walk-and-turn test. When asked about Tsujimura's performance of the one-leg stand, Officer Billins stated that Tsujimura was unable to keep his foot six inches above the ground, put his foot down on several occasions, did not raise his foot off the ground in the first ten seconds of the test, was unable to count after several prompts to begin counting, was unable to maintain his hands down at his side, and did not follow instructions.7
Officer Billins also testified that, having been apprised of Tsujimura's injury to his left knee, he suggested, during the one-leg stand, that " if [Tsujimura] were to choose a leg, it may be wise to lift his injured leg because he would have to put weight on the leg that he's standing on." Officer Billins added that Tsujimura raised his left leg during the one-leg stand.
On cross-examination, Officer Billins stated that he followed Tsujimura's vehicle for about two miles before Tsujimura finally pulled over. The officer testified that Tsujimura was not changing lanes, was not going over the speed limit, was not slowing down or speeding up, did not follow vehicles too closely, and did not make any inconsistent signals. Officer Billins related that it took Tsujimura only eight seconds to pull over from the time he turned on his sirens and lights. Officer Billins noted that out of the 24 National Highway Traffic Safety Administration (NHTSA) visual detection clues, Tsujimura exhibited only one--trouble maintaining lane position.8 Officer Billins testified that Tsujimura did not repeat questions or comments, lean on the vehicle, or provide incorrect information or change his answers. Officer Billins indicated that red, watery eyes could be caused by a number of factors other than alcohol impairment, such as fatigue and long days at work. Officer Billins also expressed that, based on his training and experience and the NHTSA, odor of alcohol is a poor indicator of a person's level of impairment and has no bearing on the amount and nature of the alcohol that the person consumed.
Tsujimura's counsel asked Officer Billins about his testimony on direct examination regarding Tsujimura's injury. According to Officer Billins, Tsujimura stated that he had an injury on the left leg or left knee and a torn ACL on an unspecified leg. Officer Billins said that, when he recommended that Tsujimura raise his left leg for the one-leg stand, he was not aware " whether raising a leg puts more physical strain on your ACL than keeping it planted" and " whether [Tsujimura's] knee injury or ACL injury affected his ability to perform the" one-leg stand and walk-and-turn.
On redirect examination, the prosecutor asked Officer Billins whether Tsujimura, while exiting his car, explained that he could not get out of the car due to an ACL injury. The relevant exchange between the prosecutor and Officer Billins ...
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