State Of Haw.'i v. Tominiko, 29535

• Decision Date: 30 June 2010
• Docket Number: NO. 29535,HPD Traffic No. 1DTA-08-08506,29535
• Parties: STATE OF HAWAI'I, Plaintiff-Appellee v. ROBERT N. TOMINIKO, Defendant-Appellant
• Court: Hawaii Court of Appeals

STATE OF HAWAI'I, Plaintiff-Appellee

v.ROBERT N. TOMINIKO, Defendant-Appellant

NO. 29535

HPD Traffic No. 1DTA-08-08506

Intermediate Court Of Appeals Of The State Of Hawai'i

June 30, 2010

John M. Tonaki Public Defender Craig W. Jerome

Deputy Public Defender Associate Judge

for Defendant-Appellant

Peter B. Carlisle Prosecuting Attorney Brian R. Vincent Deputy Prosecuting Attorney for Plaintiff-Appellee

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION

MEMORANDUM OPINION

By: Ginoza, J., with Nakamura, C.J., concurring separately, and Fujise, J., dissenting separately

Defendant-Appellant Robert N. Tominiko (Tominiko) appeals from a judgment entered on December 1, 2008 in the District Court of the First Circuit, Honolulu Division (district court).¹ Tominiko was convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and § 291E-61(a)(3) (Supp. 2008).

On appeal, Tominiko raises two points of error:

(1) The prosecution's written and oral charges for OVUII were fatally insufficient because they failed to allege the essential element that Tominiko operated or assumed actual physical control of a vehicle "upon a public way, street, road, or highway."

(2) The district court erred when it denied a motion to suppress, because under the totality of the circumstances the stop of Tominiko was not justified by specific and articulable facts that Tominiko was engaged in criminal activity. I. Sufficiency of the Charge

In State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), the Hawai'i Supreme Court recently held that under the circumstances there, the State's failure to allege that Wheeleroperated or assumed actual physical control of his vehicle "upon a public way, street, road, or highway" rendered the charge insufficient. There, the defendant immediately objected to the sufficiency of the charge before the trial court. In the instant case, Tominiko did not object to the charge at any point in the district court proceedings and instead raises the issue for the first time on appeal.

A. Due Process Concerns and the Question of Jurisdiction

As a threshold matter, under existing Hawai'i case law, insufficiency of a charge is addressed primarily as a due process concern that implicates whether proper notice was given to the defendant. However, some cases further address it as a matter of basic jurisdiction.

This is significant because under the cases addressing the matter primarily as a due process concern (i.e., the accused's right to be informed of the nature and cause of the accusation), ² an inquiry beyond the specific language of the charge may be appropriate, especially where the sufficiency of the charge is raised for the first time on appeal. See State v. Stan's Contracting, Inc., 111 Hawai'i 17, 34, 137 P.3d 331, 348 (2006) ("An insufficient indictment can be cured."); State v. Sprattling, 99 Hawai'i 312, 318, 55 P.3d 276, 282 (2002) ("[I]n Motta this court adopted a rule (hereinafter the 'Motta/Wells post-conviction liberal construction standard'), which essentially prescribes a presumption of validity on indictments that are challenged subsequent to a conviction.") (citation omitted); State v. Merino, 81 Hawai'i 198, 915 P.2d 672 (1996); State v. Wells, 78 Hawai'i 373, 894 P.2d 70 (1995) (liberal construction standard inapplicable where alleged deficiency in the charge was raised by timely motion); State v. Israel, 78 Hawai'i 66, 70, 890 P.2d 303, 307 (1995) ("In analyzing whether a defendant's article I, section 14 right to be informed has been violated, however, we are not confined to an examination of the charge. On the contrary... 'we must look to all of the information supplied to him [or her] by the State to the point where the court passes upon the contention that the right has been violated.'") (quoting State v. Treat, 67 Haw. 119, 120, 680 P.2d 250, 251 (1984)); State v. Elliott, 77 Hawai'i 309, 312, 884 P.2d 372, 375 (1994)(applying liberal construction standard and noting that "[o]ne way in which an otherwise deficient count can be reasonably construed to charge a crime is by examination of the charge as a whole."); State v. Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983) (under the liberal construction standard adopted for post-conviction challenges to indictments, conviction on a defective indictment will not be reversed "unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime").

To the contrary, in State v. Cummings, 101 Hawai'i 139, 63 P.3d 1109 (2003), sufficiency of the charge was addressed as a matter of substantive jurisdiction and the Hawai'i Supreme Court held that no further inquiry or analysis was relevant beyond the charge itself because a defective charge cannot be waived, nor can it be deemed harmless. In Cummings, where the indictment was timely challenged before the trial court, the court ruled that "reversal of a conviction obtained on such a defective accusation does not require a showing of prejudice." 101 Hawai'i at 143, 63 P.3d at 1113. The court concluded that:

This is because a defect in a complaint is not one of mere form, which is waivable, nor simply one of notice, which may be deemed harmless if a defendant was actually aware of the nature of the accusation against him or her, but, rather, is one of substantive subject matter jurisdiction, "which may not be waived or dispensed with," see Jendrusch, 58 Haw. at 281, 567 P.2d at 1244, and that is per se prejudicial, see Motta, 66 Haw. at 91, 657 P.2d at 1020 (quoting United States v. Thompson, 356 F.2d 216, 226 (2nd Cir. 1965)).

Id.³ See also, Territory v. Goto, 27 Haw. 65, 102-103, 1923 WL 2749 (Haw. Terr. 1923) (Peters, C.J., concurring)("Failure of an indictment to state facts sufficient to constitute an offense against the law is jurisdictional and is available to the defendant at any time.").

Notwithstanding the Cummings decision that a defective charge undermines jurisdiction, the court in Cummings did not overrule Motta and its progeny. Further, most recently, Wheeler reconfirmed the view that the Motta/Wells post-conviction liberal standard applies when an objection to a defective charge is not timely raised in the trial court. The Wheeler court stated:

[T]his court has applied different principles depending on whether or not an objection was timely raised in the trial court. Under the "Motta/Wells post-conviction liberal construction rule," we liberally construe charges challenged for the first time on appeal.... Under this approach, there is a "presumption of validity, "... for charges challenged subsequent to a conviction. In those circumstances, this court will "not reverse a conviction based upon a defective indictment [or complaint] unless the defendant can show prejudice or that the indictment [or complaint] cannot within reason be construed to charge a crime.".... However, the rule does not apply when reviewing timely motions challenging the sufficiency of an indictment.

121 Hawai'i at 399-400, 219 P.3d at 1186-87 (citations omitted and emphasis added).

Thus, where a defective charge is challenged for the first time on appeal, the charge is presumed valid and the Motta/Wells liberal construction standard is applied.

B. Application of the Motta/Wells Liberal Construction Standard

Under the Motta/Wells liberal construction standard, the validity of the charge is presumed and the conviction will not be reversed unless the defendant can show: (a) prejudice; or (b) that the charge cannot within reason be construed to charge a crime.

Tominiko does not assert that he has been prejudiced by the defective charge. Rather, he contends that he need not show prejudice, even where the liberal construction standard is applied, because a defective charge is always fatal and the district court lacked jurisdiction to preside over the case. As set forth above, a conviction is not automatically reversed on jurisdictional grounds where the defendant failed to timely challenge a defective charge. Instead, the Motta/Wells liberal construction standard applies, under which prejudice to the defendant is a factor. See Wheeler, 121 Hawai'i at 400, 219 P.3d at 1187. Tominiko has thus failed to make any showing of prejudice.⁴

Tominiko also fails to present any argument that the Complaint or oral charge cannot reasonably be construed to charge a crime. In deciding this issue, it is proper to "consider other information in addition to the charge that may have been provided to the defendant during the course of the case up until the time defendant objected to the sufficiency of the charges against him." Wheeler, 121 Hawai'i at 396, 219 P.3d at 1183. See also Elliott, 77 Hawai'i at 312, 884 P.2d at 375 (court examined the charge as a whole); State v. Schroeder, 76 Hawai'i 517, 530, 880 P.2d 192, 205 (1994) (information from one count was reasonably construed as providing sufficient information for another count, with court noting both counts alleged offenses committed on samedate); Treat, 67 Haw. 119, 680 P.2d 250 (grand jury transcripts informed defendant of the nature and cause of the accusation against him). Considering the information provided to Tominiko in the entirety of the written Complaint, as well as information in the facts stipulated for trial, the Complaint and oral charge can reasonably be construed to charge a crime.

In the three page Complaint, the first paragraph charges that on August 2, 2008, Tominiko committed the offense of OVUII but does not allege that he was driving a vehicle upon a public way, street, road, or highway. However, the third paragraph of the Complaint, alleging a charge for Driving Without Motor Vehicle Insurance on the same date as the OVUII charge (August 2, 2008), does allege that Tominiko "did operate or use a motor vehicle upon a public street, road, or highway of the State of Hawai'i." Because each of these paragraphs state that the...