State v. Amar
| Docket Number | CAAP-21-0000138 |
| Decision Date | 26 December 2023 |
| Parties | STATE OF HAWAI'I, Plaintiff-Appellee, v. MADELYN E. AMAR, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
1
STATE OF HAWAI'I, Plaintiff-Appellee,
v.
MADELYN E. AMAR, Defendant-Appellant
No. CAAP-21-0000138
Intermediate Court of Appeals of Hawaii
December 26, 2023
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE NO. 1DTA-18-02966)
On the briefs:
Phyllis J. Hironaka, Deputy Public Defender, for Defendant-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, for Plaintiff-Appellee.
Wadsworth, Presiding Judge, Nakasone and Guidry, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Madelyn Evelyn Amar (Amar) appeals from the February 5, 2019 Notice of Entry of Judgment and/or Order and Plea/Judgment and the March 1, 2021 Notice of Entry of Judgment and/or Order and Plea/Judgment (collectively, Judgment) entered by the District Court of the First Circuit, 'Ewa Division (District Court),[1] convicting Amar of operating a vehicle under the influence of an intoxicant (OVUII) in violation of Hawai'i Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(4).[2] Amar
raises four points of error: (1) "[p]rosecutorial misconduct, trial court error, and ineffective assistance by defense counsel resulted in improper consideration of 'the [unadmitted] video,' which formed the basis for all [Plaintiff-Appellee State of Hawai'i's (State)] witness testimony, in violation of Amar's rights to due process and fair trial";[3] (2) "[t]he State presented insufficient evidence that Amar drove on a 'public way, street, road, or highway'"; (3) "[t]he trial court committed misconduct in assisting the prosecutor by laying foundation for the six photos contained in S-Exh. 1, 2, and 3, then admitting them into evidence"; and (4) "Amar's rights to due process and [a] fair trial" were violated when the District Court considered a motor vehicle collision (MVC) diagram that was not admitted into evidence.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Amar's points one and two as follows, and reverse for insufficient evidence.[4]
The evidence presented at the February 5, 2019 bench trial came from the State's four witnesses, and Amar did not testify or present witnesses. The State's four witnesses were eyewitness Sabrina Saunoa (Saunoa), Honolulu Police Department (HPD) Corporal Cary Izuka (Corporal Izuka), HPD Officer Charles Rezentes (Officer Rezentes), and HPD Officer Kristi DeGuzman
(Officer DeGuzman). In their testimonies, the witnesses described two events pertinent to this case: (1) a police investigation of a MVC involving a vehicle striking a wall then leaving the scene, which occurred on August 19, 2018, around 11:40 p.m. near 98-731 Moanalua Loop (Accident Scene), and (2) a police response to an argument call about "ten minutes" later, involving two people observed walking away from a damaged vehicle at 611 Kilinoe Street (Argument Scene), which was near the Accident Scene.
Accident Scene testimony
Saunoa testified that at around 11:40 p.m. she heard a "really loud" sound while in her apartment at 98-731 Moanalua Loop. She went outside and saw a car by a wall in the "Verizon building parking lot" across the street. She testified that "a person jump[ed] out of the car[,]" "was yelling on the phone," then "went back in the car and started to . . . drive away but couldn't." Saunoa started recording a video because the driver was "revving the engine"; and that their "cars [we]re right across the street" from "the parking structure-where that car was," and that she was "scared somebody was gonna [sic] bang [their] cars." Saunoa testified that the vehicle did not enter the street because "it stayed on the gravel[,]" "was stuck" and "couldn't move."[5] She saw only one person in the car, and testified she might "sort of" be able to recognize the person if she saw them again, and stated she thought the person was female, even though the police and "a lot of people were saying it was a
male."[6] Saunoa did not observe anyone drive away from the scene because she went inside her apartment after recording the video, and when she returned the car was gone.[7]
Saunoa provided her cell phone video to the police officers at the Accident Scene. She also brought her cell phone containing the video to the trial. The record reflects that at that point during the trial, the State asked the video to be entered into evidence; the defense objected under Hawai'i Rules of Evidence (HRE) Rule 901; the District Court's response to the defense's objection was inaudible; the State asked Saunoa to "describe for the court what happens in that video"; and Saunoa did so, as follows:
Q. [(By DPA)] Did you bring the original video -
A. [(By Saunoa)] Yeah.
Q. -- with you today?
A. (No audible response.)
[DPA]: Honor [sic], I have a copy, but, um, it's actually clearer on her phone. Uh, State would ask to enter the video into evidence. Um, but perhaps we should view it, the original, on her phone.
THE COURT: Mr. [defense counsel]?
[DEFENSE COUNSEL]: Uh, yes, Your Honor? Uh, defense objection under Hawaii Rule of Evidence I believe it's 90-901.
THE COURT: Okay. (Inaudible.)
[DEFENSE COUNSEL]: And --
Q. [(By DPA)] So, um, describe for the court what happens in that video.
A. [(By Saunoa)] Um, I see the -- this person was in the car and then jumped out. Oh, hold on. That was -- in the video it was trying to get away I guess. I don't know. Moving the car forward. That's all I saw --
Q. Okay.
A. - - on the video itself.
Q. Okay.
A. Yeah.
The above record does not indicate how the District Court ruled on the objection to the video, whether the District Court received the video into evidence, and whether the District Court viewed the video.[8]
Corporal Izuka testified that he responded to the Accident Scene for an MVC call and spoke to two witnesses[9] who came from nearby residences after hearing the crash. Corporal Izuka observed a hole in a "cinder block wall" of a building that belonged to "Shred-X." He saw damage to a "large flatbed trailer" parked in a "gravel lot" "13 feet away" from the "Shred-X building[,]" which was located "approximately 40 feet" from "the edge of the roadway[.]" He recovered a silver hubcap with a "Chevy logo" from the Accident Scene. He used his phone to record the video taken by Saunoa. Corporal Izuka did not testify as to the contents of the Saunoa video, but related that he created a diagram showing the vehicle's path of travel based on the video.
Officer Rezentes testified that he responded to the Accident Scene for an MVC call and observed "broken tile on the building," which he identified as "a Shred-X building or a business over there" on Moanalua Loop, by a "dirt lot" where the "workers park." A male[10] standing near the damage told him "a car just got stuck, wedged in there, and then a dark-colored person got out, jumped in the driver's seat, reversed out, and drove off." Officer Rezentes also watched the video recovered at the Accident Scene.
Officer DeGuzman testified that she responded to the Accident Scene for the MVC call and she "view[ed] the video that was provided by a witness" at the scene.
Argument Scene testimony
Approximately ten minutes after the police officers responded to the MVC call, they responded to a call about "a couple arguing fronting . . . 611 Kilinoe Street[,]" which was "less than two minutes away[.]" At the Argument Scene, Officer Rezentes saw "two people," later identified as Amar and her wife, Angelique, on the sidewalk "walking away from" a parked "silver" car with "severe front end damage."[11] The damaged vehicle appeared "similar" to the "silver four-door sedan" in the video that Officer Rezentes had previously watched at the Accident Scene. Officer Rezentes testified that Amar was wearing the same clothes as the person in the video; he was able to identify Amar as the person in the video; and Amar was "driving away from the scene of the accident on the video[,]" as follows:
Q. [(By DPA)] Okay. Um, on the first scene there was a video recovered. Did you watch that video?
A. [(By Officer Rezentes)] Yes.
Q. Okay. And from that video were you able to positively identify Evelyn Madelyn [sic] [(Amar)]?
A. Yes.
. . . .
Q. [(By DPA)] Okay. And do you interact with Evelyn Madelyn [sic] [(Amar)] at that time?
A. [(By Officer Rezentes)] Yes.
Q. And did you make any observations at that time?
A. She was wearing the exact same clothes as the person I saw in the video.
. . . .
Q. [(By defense counsel)] Can you describe for the court today the driving behavior or conduct by Madelyn Amar that suggested to you that she might be impaired?
A. [(By Officer Rezentes)] Her driving and conduct?
Q. That you personally observed.
A. I...
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