87 Hawai'i 71, State v. Kane, 20692

• Decision Date: 07 January 1998
• Docket Number: No. 20692,20692
• Parties: 87 Hawai'i 71 STATE of Hawai'i, Plaintiff-Appellant, v. Dayton B. KANE, Defendant-Appellee, and Wendell K. Apao, Sr., Defendant.
• Court: Hawaii Supreme Court

Page 934

951 P.2d 934

87 Hawai'i 71

STATE of Hawai'i, Plaintiff-Appellant, v. Dayton B. KANE, Defendant-Appellee, and Wendell K. Apao, Sr., Defendant.

No. 20692.

Supreme Court of Hawai'i.

Jan. 7, 1998.

Alexa D.M. Fujise, Deputy Prosecuting Attorney, City and County of Honolulu, for plaintiff-appellant State of Hawai'i.

Richard L. Hoke, Honolulu, for defendant-appellee Dayton B. Kane.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

The plaintiff-appellant State of Hawai'i (the prosecution) appeals from the circuit court's "Findings of Fact, Conclusions of Law, and Order Denying Motion to Suppress Items and Granting Motions to Suppress Statements and to Dismiss Count II as Based on an Unconstitutionally Vague and Overbroad Statute." On appeal, the prosecution argues: (1) that Hawai'i Revised Statutes (HRS) § 134-8 (1993) ¹ is not unconstitutionally vague or overbroad, either on its face or as applied; and (2) statements made by the defendant-appellee Dayton B. Kane to a police officer following his arrest, but before he was afforded the procedural safeguards required by the United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), either (a) were not in answer to questions designed to elicit an incriminating response or (b) fall within the "public safety" exception to Miranda, and, therefore, need not be suppressed.

The prosecution's second argument fails. The record establishes that the questions posed to Kane were designed to elicit an incriminating response. Therefore, Kane's statements may not be admitted absent a showing that the procedural safeguards required by Miranda were satisfied. This court has not recognized a "public safety" exception to the requirement that a criminal suspect must be given Miranda warnings prior to any custodial interrogation in order to protect the rights afforded by article I, section 10 of the Hawai'i Constitution. Furthermore, under federal constitutional analysis, the "public safety" exception to Miranda, as set forth by the United States Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), is not available upon the facts of this case. We therefore affirm that portion of the circuit court's order granting Kane's motion to suppress statements. However, inasmuch as we hold that HRS § 134-8 is not unconstitutionally vague or overbroad, we (1) reverse that portion of the circuit court's order granting the motion to dismiss count II of the indictment and (2) remand this case for further proceedings.

I. BACKGROUND

On the afternoon of October 20, 1996, a pickup truck carrying Kane and three companions was stopped by police near Makai Pier, on Kalaniana'ole Highway, in connection with a robbery attempt that had occurred a few minutes earlier. ² Kane was arrested after he was identified as the perpetrator by the robbery victim. After Kane's arrest, Officer John Veneri of the Honolulu Police Department (HPD) was assigned to "stand by" the pickup truck, which was registered to Kane, until a tow truck arrived to remove it from the scene. While waiting, Officer Veneri looked through the truck's passenger window and observed what appeared to be flare guns protruding from a fanny pack located in the truck's middle console area. After consultation with his supervisor about the sighting, Officer Veneri obtained a "consent to search" form and read and explained it to Kane, who was seated, handcuffed, in a nearby patrol car; Kane signed the consent to search form.

After receiving Kane's consent to search the truck, Officer Veneri retrieved the fanny pack with the flare guns. While searching the fanny pack, Officer Veneri discovered "a shot gun shell taped to the rear of [a] cigar tube [with] a fuse on the end of it." Suspecting that the object was an explosive device and being concerned for the safety of the police officers at the scene and beachgoers in the area, Officer Veneri put the object down, approached Kane, and, without first giving Miranda warnings, asked what the object was and what Kane was doing with it. Kane told Veneri that the object contained "bagged gunpowder and beebees and at the end was a shotgun shell" and that "he had it in case he got mobbed." Based upon Kane's response, Officer Veneri called "the bomb people at HPD" and requested that they come to the scene and dismantle the bomb.

Eventually, Kane was charged with robbery in the second degree in violation of HRS § 708-841(1)(a) (1993) (Count I), possession of bomb prohibited in violation of HRS § 134-8 (Count II), and three counts of possession of ammunition by a person convicted of certain crimes in violation of HRS §§ 134-7(b) and (h) (1993) (Counts III, IV, and V).

Kane filed three pretrial motions. In support of the first, which sought to suppress the statements made to Officer Veneri, Kane argued that the custodial interrogation by Officer Veneri did not afford him the procedural safeguards required by the United States Supreme Court's holding in Miranda and, therefore, that his statements to Officer Veneri must be suppressed. In his second motion, Kane sought dismissal of count II, contending that HRS § 134-8 was unconstitutionally vague and overbroad inasmuch as "it does not define 'bomb' nor does it set forth any standard to adjudge a person guilty for possessing a 'bomb.' " Kane's third motion sought to suppress admission of the items seized from the fanny pack into evidence and was grounded upon his claim that, inasmuch as he had been drinking and using drugs prior to the incident, he had not understood the consent form that he had signed permitting the search of his truck and, therefore, that Officer Veneri's search of the pack was "without a warrant, exigent circumstances[,] or [Kane's valid] consent."

After a hearing, the circuit court granted Kane's first two motions and denied the third in a single written order, filed on April 30, 1997. The prosecution filed a timely notice of appeal from the parts of the order granting Kane's motions to suppress statements and to dismiss count II of the indictment. Kane did not cross-appeal from the portion of the order denying his motion to suppress items.

II. STANDARDS OF REVIEW

A. The Constitutionality Of A Statute

When confronted with a constitutional challenge of a penal statute on the grounds of vagueness or overbreadth, we apply a number of principles on appeal.

First,

[t]he constitutionality of a statute is a question of law which is reviewable under the right/wrong standard. Additionally, where it is alleged that the legislature has acted unconstitutionally, this court has consistently held that every enactment of the legislature is presumptively constitutional, and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt. The infraction should be plain, clear, manifest and unmistakable.

....

Second, we construe penal statutes narrowly, considering them in light of precedent, legislative history, and common sense....

Third, where possible, we will read a penal statute in such a manner as to preserve its constitutionality.

To accord a constitutional interpretation of a provision of broad or apparent unrestricted scope, courts will strive to focus the scope of the provision to a narrow and more restricted construction.

Provisions of a penal statute will be accorded a limited and reasonable interpretation under this doctrine in order to preserve its overall purpose and to avoid absurd results.

Put differently, a statute will not be held unconstitutional by reason of uncertainty if any sensible construction embracing the legislative purpose may be given it. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible to interpretation will not render it nugatory....

State v. Gaylord, 78 Hawai'i 127, 137-38, 890 P.2d 1167, 1177-78 (1995) (quoting State v. Lee, 75 Haw. 80, 90-91, 856 P.2d 1246, 1253 (1993) and State v. Taylor, 49 Haw. 624, 634-35, 425 P.2d 1014, 1021 (1967)) (other citations, internal quotation marks, ellipsis points and brackets omitted).

State v. Bates, 84 Hawai'i 211, 220, 933 P.2d 48, 57 (1997).

B. Findings of Fact and Conclusions of Law

[Findings of fact] are reviewed under the clearly erroneous standard. Dan v. State, 76 Hawai'i 423, 428, 879 P.2d 528, 533 (1994). "A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed." Id.

We review the trial court's [conclusions of law] de novo under the "right/wrong" standard. Raines v. State, 79 Hawai'i 219, 222, 900 P.2d 1286, 1289 (1995). "Under this ... standard, we examine the facts and answer the question without being required to give any weight to the trial court's answer to it." State v. Miller, 4 Haw.App. 603, 606, 671 P.2d 1037, 1040 (1983). See also Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 119, 839 P.2d 10, 28, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992). Thus, a [conclusion of law] "is not binding upon the appellate court and is freely reviewable for its correctness." State v. Bowe, 77 Hawai'i 51, 53, 881 P.2d 538, 540 (1994) (citation omitted).

Aickin v. Ocean View Investments Co., 84 Hawai'i 447, 453, 935 P.2d 992, 998 (1997).

III. DISCUSSION

A. HRS § 134-8 Is Not Unconstitutionally Vague Or Overbroad On Its Face Or As Applied.

1. Vagueness

In order to determine the constitutionality of HRS § 134-8, we must first define its elements. A person commits the offense of "possession of bomb prohibited," in violation of HRS § 134-8(a) and as charged in Count II of the indictment against Kane, if the person possesses a bomb. Accordingly, there are two material elements of the offense of "possession of bomb prohibited," as charged, each of which the prosecution would be required to...