997 P.2d 13 (Hawai'i 2000), 22071, State v. Jenkins

Docket Nº:22071.
Citation:997 P.2d 13, 93 Hawai'i 87
Party Name:STATE of Hawai'i, Plaintiff-Appellee, v. Wayne Thomas JENKINS, Defendant-Appellant.
Case Date:April 06, 2000
Court:Supreme Court of Hawai'i

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997 P.2d 13 (Hawai'i 2000)

93 Hawai'i 87

STATE of Hawai'i, Plaintiff-Appellee,

v.

Wayne Thomas JENKINS, Defendant-Appellant.

No. 22071.

Supreme Court of Hawai'i.

April 6, 2000.

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[93 Hawai'i 93] Dwight C.H. Lum, Honolulu, on the briefs, for the defendant-appellant Wayne Thomas Jenkins.

Donn Fudo, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellee State of Hawai'i.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Intermediate Court Judge WATANABE, Assigned by Reason of Vacancy.

OPINION

LEVINSON, J.

The defendant-appellant Wayne Thomas Jenkins appeals from the judgment, guilty conviction, and sentence of the first circuit court, filed on October 20, 1998. Jenkins raises eight points of error on appeal, namely, that: (1) the circuit court erred in denying Jenkins's motion to suppress evidence; (2) the circuit court erred in refusing to dismiss the case or allow Jenkins a continuance to investigate the "inadvertent" destruction of evidence; (3) the circuit court abused its discretion in admitting testimony pursuant to Hawaiì Rules of Evidence (HRE) Rule 701 (1993); 1 (4) the circuit court should have granted Jenkins's motion for judgment of acquittal; (5) the circuit court erred in instructing the jury regarding recklessness as the state of mind requisite for "possession"; (6) the circuit court erred in failing to instruct the jury regarding certain material and essential elements of the crimes charged; (7) the circuit court's unanimity instruction was prejudicially confusing; and (8) the circuit court committed plain error in that the length of Jenkins's prison sentence amounted to cruel and unusual punishment. Because we agree with Jenkins's fifth and sixth points of error, we vacate the circuit court's judgment and remand for a new trial. Although our holding with respect to the foregoing points is outcome-dispositive of the present appeal, we address Jenkins's remaining arguments in order to provide guidance to the parties and the circuit court on remand. Cf. State v. Davia, 87 Hawai'i 249, 252, 953 P.2d 1347, 1350 (1998).

I. BACKGROUND

A. Factual History As Adduced At Trial

In August 1997, Jenkins was living in Kahuku, in the City and County of Honolulu, with a friend by the name of Robert Cartwright. On the night of August 2, 1997, another friend, Aloha Trice, came to visit Cartwright. At some point between 1:00 a.m. and 2:00 a.m. on the morning of August 3, 1997, Trice stated that she wanted to go to the store.

Jenkins asked Cartwright if he could borrow a truck to drive Trice to the store. Cartwright handed Jenkins a set of keys and told him that "the truck was out front on the road." Cartwright told Jenkins that he had "just bought the truck." The vehicle outside of the house was a black Toyota truck, "lifted" with large tires. Jenkins had not traveled in the truck before. Jenkins and Trice entered the truck and drove north on Kamehameha Highway, in the direction of La'ie and Hau'ula, the only towns with stores open at that time of night. As Jenkins was passing the La'ie Shopping Center, he noticed that he was being followed by a police officer.

Officer Ofeina Unga of the Honolulu Police Department (HPD) testified at trial as follows. During the early morning hours of August 3, 1997, he noticed a black Toyota truck, equipped with large tires and modified suspension, operating with expired tax and safety decals. He asked his dispatcher to confirm that the decals had expired and received an affirmative response. He activated his blue lights and siren, and the truck pulled over at the corner of Naniloa Loop and Iosepa Street.

Officer Unga stopped his police vehicle about ten to twelve feet behind the truck and

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[93 Hawai'i 94] left his headlights on. He noticed two people in the truck, both of whom were "moving around a lot trying to turn around and look at me and look out the windows and see what my position was in relation to them." Because this was more movement than that to which he was accustomed, Officer Unga approached the truck by walking in a loop from his car to the truck so he could have a straight view into the window on the driver's side.

As Officer Unga was walking toward the vehicle, he noticed a black pouch and what appeared to be an eyeglasses case drop out of the passenger's side of the truck. He then observed the passenger, whom he later identified as Trice, open her door and begin to step out of the vehicle. He yelled at her to stay in the truck, but she leaped out of the truck, grabbed some of the items that had fallen to the ground, and returned to the vehicle.

Officer Unga ran around the back of the truck to the passenger's side. On the ground, in the area of the passenger's door, he observed an eyeglasses case and two "zip-lock packets" of what appeared to be crystal methamphetamine or "ice." 2 He opened the passenger's door and directed the occupants of the truck to place their hands on the dashboard.

Officer Unga leaned into the truck and, with the aid of his flashlight, observed a closed black pouch and a glass pipe on the seat between Trice and the driver, whom he later identified as Jenkins. Officer Unga feared for his safety and wanted to "determine if there was any threat" to him. He seized the pouch and felt the outline of a small handgun within it. He then removed the pouch from the vehicle.

Shortly after Officer Unga secured the black pouch, a backup police unit arrived. HPD Officer Channing Hawkins removed Jenkins from the driver's side of the truck. Officer Unga walked around to the driver's side and observed a small blue bag on the floor of the truck's cab. Protruding from the bag appeared to be the butt of a small handgun. Officer Unga removed the handgun from the bag. In the process of securing the handgun for transport, he noticed a second firearm in the bottom of the bag.

HPD Detective Terry Bledsoe testified that he obtained and executed a warrant to search the closed black pouch that Officer Unga had seized from the seat of the truck. Inside, he discovered a pistol and ammunition.

Jenkins testified that he was unaware of any of the three guns before they were discovered by Officer Unga. He further testified that, when he entered the truck on August 3, 1997, he did not know that there were any firearms in it.

B. Procedural History

In connection with the foregoing events, on August 7, 1997, the grand jury returned an indictment against Jenkins, charging him with (1) one count (Count I) of possession of a firearm by a person convicted of certain crimes, in violation of Hawai'i Revised Statutes (HRS) § 134-7 (1993 & Supp.1997), 3 (2)

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[93 Hawai'i 95] one count (Count II) of possession of ammunition by a person convicted of certain crimes, in violation of HRS § 134-7, see supra note 3, and (3) three counts (Counts III, IV, and V) of place to keep pistol or revolver, in violation of HRS §§ 134-6(c) and (e) (1993 & Supp.1997). 4 Trice was named as a codefendant, but, on March 30, 1998, the circuit court granted Jenkins's oral motion for severance of the defendants.

Prior to trial, Jenkins moved to suppress evidence of the three handguns discovered in the truck. He also moved to suppress "any testimony by witnesses to events which occurred after the warrantless search and illegal seizure of evidence[.]" At the hearing on Jenkins's motion, Officer Unga testified in relevant part as follows:

[Jenkins's Attorney]: [G]oing first to the safety decal, okay, the safety decal, you said, was expired. What was the date that you saw on it?

Officer Unga: I can't recall the exact date, but one was October and November '95. They both expired in '95.

[Jenkins's Attorney]: Okay, you know what the color coding system is for safety decals, correct?

Officer Unga: I didn't notice the color. I just noticed that the expiration day and month did not match.

The circuit court denied Jenkins's motion to suppress and entered the following findings of fact and conclusions of law:

1. Officer Unga was credible on the stand.

2. Once someone in a car makes sudden, suspicious movements which may implicate officer safety, which is what occurred here, this takes the case out of the Bolosan scenario.

3. A case by case analysis is necessary when imputing problems of exigency to the driver of a car based on the actions of the passenger. Here, the size of the pouch makes it reasonable to infer that it could compromise officer safety. It was also reasonable for the officer and the court to infer that it was the same bag located in the center of the front seat of the car, between the driver and the passenger.

4. Officer Unga had specific and articulable facts upon which to stop the vehicle in this case, to wit, the expired tax and safety tags which were confirmed to be outstanding by HPD dispatch. State v. Bolosan, 78 Hawai'i 86, 890 P.2d 673 (1995).

5. The suspicious actions of the passenger could reasonably be interpreted to compromise officer safety and justified the officer's restraint of the driver and passenger and their removal from the vehicle. A brief investigatory stop based upon reasonable suspicion may . . . develop evidence providing probable cause for arrest. State v. Melear, 63 Hawai'i 488, 630 P.2d 619 (1981).

6. Officer Unga's observation in plain view of what he reasonably believed to be illegal drugs on the ground justified the detention and removal of [Jenkins and Trice] from the vehicle.

7. The drugs on the ground and the guns on the driver's side floor of the vehicle were in plain view and therefore [Jenkins

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[93 Hawai'i 96] and Trice] had no reasonable expectation of privacy in those items. State v. Kapoi, 64 Hawai'i 130, ...

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