State v. Fukagawa
Decision Date | 30 December 2002 |
Docket Number | No. 22810.,22810. |
Citation | 100 Haw. 498,60 P.3d 899 |
Parties | STATE OF Hawai`i, Plaintiff-Appellee, v. Ivan FUKAGAWA, Defendant-Appellant. |
Court | Hawaii Supreme Court |
Theodore Y.H. Chinn, Deputy Public Defender, on the briefs, for defendant-appellant.
Richard K. Minatoya, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.
Defendant-appellant Ivan Fukagawa appeals from the judgment of conviction and sentence of the Circuit Court of the Second Circuit, adjudging him guilty of: (1) driving under the influence of intoxicating liquor, in violation of Hawai`i Revised Statutes (HRS) § 291-4 (Supp.1998)1 (Count One); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243(1) (1993 & Supp.1998)2 (Count Two); and (3) prohibited acts relating to drug paraphernalia, in violation of HRS § 329-43.5(a) (1993)3 (Count Three). Fukagawa claims that the motions court, the Honorable Shackley F. Raffetto presiding, erred in denying his motion to dismiss the charge of promoting a dangerous drug in the third degree. Specifically, Fukagawa alleges that the motions court erred by: (1) admitting the testimony of the prosecution's witness, who indicated that the crystal methamphetamine residue recovered from Fukagawa's pipe may have contained a usable amount of the drug; and (2) denying Fukagawa's motion to dismiss the charge as a de minimis infraction, pursuant to Hawai`i Revised Statutes (HRS) § 702-236 (1993).4 For the reasons discussed below, we affirm the order denying Fukagawa's motion to dismiss and the judgment of conviction and sentence of the circuit court.
On January 15, 1999, Fukagawa was charged by indictment with driving under the influence of intoxicating liquor, promoting a dangerous drug in the third degree, and prohibited acts relating to drug paraphernalia. On June 14, 1999, Fukagawa filed a motion to dismiss the charge of promoting a dangerous drug in the third degree, asserting that the charge constituted a de minimis infraction. A hearing on the motion was held on July 1, 1999.
(Emphasis added.) Additionally, Read testified that there is a difference between the drug as it is purchased and the residue that remains in a pipe after use. Read explained:
So you might say that in a street drug it might be half, or maybe even more of the main drug, but after it is smoked, what is left might be trace amounts of the drug and hardly usable, so depends [sic] on how hard it has been smoked, too. They might put some in, light it, smoke it for awhile, use half of it, set it aside, and heat it again and use some more from it. Eventually, it becomes unusable, and because there's no drug left, that residue then might still have detectable amounts of drug in it, but we would call them trace amounts.
Read did not indicate that he performed any analysis on the substance weighing .018 grams recovered from Fukagawa's pipe. With respect to the analysis actually performed on the substance recovered from Fukagawa in the instant case, defense counsel and Read had the following exchange:
(Emphasis added.)
On cross-examination, Read stated that he had neither met nor examined Fukagawa and that his testimony regarding the effects of various doses of methamphetamine did not account for Fukagawa's individual physical characteristics. Read testified that drugs are diluted in larger body sizes, explaining that a person weighing twice as much as another individual would have to take approximately twice as much drug to get the same response as his lighter counterpart. Read also stated that the dose response results alluded to in his testimony were proportional to a person weighing seventy kilograms, or about 150 pounds. Upon examination by the court, Read testified that he did not know the weight of the children who participated in the studies he reviewed regarding the use of methamphetamine to treat ADHD.
Maui Police Department Officer Dennis Lee testified on behalf of the prosecution. Lee stated that he had received training in the identification and testing of illegal drugs and drug paraphernalia. Specifically, Lee testified that he had received "eight hours of specialized training from Bectin Dickinson instructors in the field testing of illegal drugs" and "forty hours of basic investigation and drug identification from the Drug Enforcement Administration." Lee stated that he: (1) was certified by the Maui Police Department to field test evidence for the presence of illegal drugs; (2) had experience field testing evidence for the presence of illegal drugs; and (3) had tested evidence for the presence of methamphetamine well over a hundred times in the past.
Lee testified that, on May 26, 1998, he received an assignment to field test evidence recovered from Fukagawa, which had been sealed in an evidence packet recorded under Maui Police Report Number 98-14511. Lee stated that he removed a glass pipe from the evidence packet, which he identified as the kind of pipe normally used to smoke crystal methamphetamine. Lee testified that the field test on a sample of the residue contained in the glass pipe, performed in accordance with his training and experience, indicated the presence of amphetamines. However, Lee stated that the test he had performed did not indicate the amount of methamphetamine contained in the substance tested. Lee also testified that methamphetamine is classified as a dangerous drug.
On direct examination, Lee had the following exchange with the prosecutor:
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Case Notes
...may affirm a judgment of a lower court on any ground in the record that supports affirmance. See State v. Fukagawa, 100 Hawaii 498, 506, 60 P.3d 899, 907 (2002) (citations omitted). After the defense objected to Officer Kotobalavu again reviewing his report and questioned whether he had an ......