State v. Carmichael

• Decision Date: 29 August 2002
• Docket Number: No. 22871.,22871.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Kalawaianui F. CARMICHAEL, Defendant-Appellant.
• Court: Hawaii Supreme Court

53 P.3d 214

99 Haw. 75

STATE of Hawai`i, Plaintiff-Appellee, v. Kalawaianui F. CARMICHAEL, Defendant-Appellant.

No. 22871.

Supreme Court of Hawai`i.

August 29, 2002.

As Corrected September 5, 2002.

As Amended September 9, 2002.

Theodore Y.H. Chinn, Deputy Public Defender, on the briefs, for defendant-appellant.

Mark R. Simonds, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

MOON, C.J., and NAKAYAMA, J.; RAMIL, J.

Opinion by MOON, C.J., in which NAKAYAMA, J., joins; RAMIL, J., concurring in the result.

Defendant-appellant Kalawaianui F. Carmichael appeals from the September 23, 1999 judgment of conviction and sentence of the Circuit Court of the Second Circuit. Carmichael contends that the circuit court, the Honorable Shackley Raffetto presiding, abused its discretion in denying Carmichael's motion to dismiss a charge of promoting a dangerous drug in the third degree as a de minimis offense. For the following reasons, we affirm both the circuit court's denial of the motion to dismiss and its judgment of conviction and sentence.

I. BACKGROUND

On February 13, 1999, Maui Police Department (MPD) Officer Christopher Horton observed a vehicle driven by Carmichael traveling between 84 and 86 miles per hour on a road with a speed limit of 30 miles per hour. Officer Horton stopped Carmichael's vehicle and spoke to him. Officer Horton detected an odor of alcohol from Carmichael, who slurred his words as he spoke. Carmichael initially admitted to drinking one, then two, beers. Minutes later, Carmichael told Officer Horton that he had drunk "three 40 ounce Mickey's." Carmichael appeared unsteady on his feet, and his field sobriety test revealed other signs of impairment. He was arrested for driving under the influence of intoxicating liquor, in violation of Hawaii Revised Statutes (HRS) 291-4 (Supp.1999).¹

At the Wailuku police station, Carmichael elected to take a breath alcohol test, which revealed an alcohol content of .096. While "processing" Carmichael, MPD Officer Robert Harley did a pat-down search and recovered from Carmichael's sock: (1) a glass pipe containing a white crystalline substance and a brown, burnt substance; (2) two metal scrapers; (3) a small plastic straw with one end heat-sealed and the other cut at an angle; and (4) several ziplock bags containing "a light rock residue visible to the naked eye."

On April 12, 1999, Carmichael was charged by grand jury indictment with: (1) driving under the influence of intoxicating liquor (Count I); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp.1999)² (Count II); and (3) prohibited acts related to drug paraphernalia, in violation of HRS § 329-43.5(a) (1993)³ (Count III). On June 4, 1999, Carmichael filed a motion to dismiss Count II of the indictment, claiming that his alleged violation of HRS § 714-1243 constituted a de minimis infraction, pursuant to HRS § 702-236 (1993).⁴

A hearing on Carmichael's motion was held on December 27, 1999. Both parties stipulated that Julie Wood, an expert in the field of drug identification, tested the evidence recovered from Carmichael. The parties stipulated that Wood's testimony would have been that the substance tested in the instant case was visible to the naked eye, and the parties agreed to admit into evidence a lab report prepared by Wood. Wood's lab report indicated that .002 grams of a substance containing methamphetamine was recovered from the glass pipe taken from Carmichael. The report also indicated that the white residue on the plastic straw and in the ziplock bags was of an insufficient amount for analysis.

The defense called George W. Read, Ph.D., Emeritus Professor of Pharmacology at the University of Hawai`i. Dr. Read was qualified as an expert in the field of pharmacology, "the study of actions of drugs in an organism, especially man, humans." He testified that methamphetamine is a central nervous system (CNS) stimulant that has been medically accepted for use in the treatment of obesity, narcolepsy, attention deficit hyperactive disorder (ADHD), and fatigue.⁵ The defense offered into evidence⁶ a chart, prepared by Dr. Read, indicating that the ranges of methamphetamine dosages used to treat obesity, narcolepsy, ADHD, and fatigue are: .01 to .04 grams; .005 to .06 grams; .005 to .015 grams; and .01 to .04 grams, respectively. Dr. Read testified that the doses indicated on his chart were based upon pure methamphetamine taken orally in pill form. He also testified that at least one manufacturer makes .0025 gram tablets of methamphetamine to treat ADHD in children.

With respect to the abuse of methamphetamine, Dr. Read testified that a "naive user," that is, one who had not developed a tolerance for methamphetamine, would use between.05 and .1 grams to achieve a feeling of "euphoria and elation." Dr. Read referred to an amount of methamphetamine used to achieve euphoria and elation as a "street dose," an "illicit use dose," and an "illicit dose." He also noted that researchers in one of the studies he reviewed had used .03 grams of methamphetamine for a 70 kilogram person as "the low end of the street dose." Dr. Read concluded that .002 grams of methamphetamine⁷ would not be saleable, would not be effective as an illicit dose, and would not produce a pharmacological effect. Dr. Read further testified that residue recovered from a pipe "is going to be almost all inert material with very little drug."

On cross-examination, Dr. Read explained that inhaling a drug will result in a greater effect with a smaller dose than ingesting the same drug orally. Dr. Read also stated that he had neither met nor examined Carmichael and indicated that he did not know if Carmichael had a history of drug use.

The circuit court inquired as to how alcohol in Carmichael's system would interact with methamphetamine. Specifically, the court asked:

The evidence here is that as I understand it from the memorand[a] is [Carmichael] was arrested for driving under the influence of alcohol, told the police he was driving his car at an excessive speed, told the policeman he drank three, forty-ounce Mickeys, and when he got to the police station they gave him a breath test and had, I think .096 blood alcohol content. That will affect the effect the ingestion of methamphetamine would have on a person, would it not?

Dr. Read stated that alcohol and methamphetamine would work in opposition to each other and, if anything, the methamphetamine "would have made him more alert and less drunk than he would appear with the alcohol alone" and that, "in his behavior to the arresting cop, he would have appeared slightly less drunk with the CNS stimulant in his system." Upon further questioning by the prosecution, Dr. Read indicated that methamphetamine use would not affect the rate of elimination of alcohol from the human body in any manner.

MPD Officer Michael Callinan, assigned to the vice and narcotics division, testified for the prosecution. Officer Callinan identified the pipe recovered from Carmichael as one used to smoke crystal methamphetamine. He indicated that methamphetamine is usually loaded into the ball end of the pipe with a cut straw. The ball end of the pipe is then heated with an open flame, and the user inhales the methamphetamine from the cylindrical end of the pipe. Officer Callinan explained that the plastic straw recovered from Carmichael was of the type used to load methamphetamine into a pipe for use or to load the drug into smaller packets for distribution. With respect to the metal scrapers, he also testified that a user who "is low on their product" will sometimes "scrape the residue into a grouping or small bunch, and then ... resmoke the residue."

In their arguments, both the defense and the prosecution focused on the amount of methamphetamine recovered in the instant case. The defense argued, inter alia, that Count II of the indictment should be dismissed as a de minimis infraction because "the .002 grams containing methamphetamine has no pharmacological effect according to Doctor George Read. Therefore, the Court should find this amount is unusable for use or sale and falls within the purview of the language of State v. Vance." Based upon Dr. Read's testimony that .002 grams was a measurable amount and Officer Callinan's testimony regarding the practice of "scraping the inside of the glass pipe in order to heat residue and smoke it," the prosecution argued that a useable amount of methamphetamine was recovered from Carmichael.

The circuit court denied Carmichael's motion to dismiss, noting:

We know that the Vance case was talking about cocaine, for which there's no mandatory sentencing. We do know the legislature in addition to prohibiting possession of any amount of drug, methamphetamine, in fact requires mandatory jail terms for possession of this particular drug, so it reemphasized its intent that this is a serious drug and that the potential for harm to our society is very high.

In this case the amount that was—well, let me take a step. I think the de minimis standard is essentially intended for a situation such as where a person borrows the car of another person and then they are arrested and they find some small amount of drugs in the ashtray or something like that, or circumstances that don't indicate the person was actively smoking, or ingesting the drug or using the drug.

Not that it is just—I don't think it is intended to provide a bright line for a certain amount, and also it is apparent that even the Supreme Court is using the wrong terminology, that is to say the word narcotic. Apparently, that's not appropriate for use with the drug methamphetamine. I am interpreting that to mean any effects on the central nervous system.

The expert talked about, well, what he means street use, how much does it take to get a person high, which is problematical, because you have all these variables, what their tolerance might be, how much

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