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

60 P.3d 899

100 Haw. 498

STATE OF Hawai`i, Plaintiff-Appellee, v. Ivan FUKAGAWA, Defendant-Appellant.

No. 22810.

Supreme Court of Hawai`i.

December 30, 2002.

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.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ.; RAMIL, J., dissenting; and ACOBA, J., dissenting.

Opinion of the Court by MOON, C.J.

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)<sup>1</sup> (Count One); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243(1) (1993 & Supp.1998)<sup>2</sup> (Count Two); and (3) prohibited acts relating to drug paraphernalia, in violation of HRS § 329-43.5(a) (1993)<sup>3</sup> (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.

I. BACKGROUND

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.

At the outset of the hearing on Fukagawa's motion, the parties stipulated to the admission of the Maui Police Crime Laboratory Analysis Report Number 98-14511 (identified as "State's Exhibit 1"), prepared by Julie Wood, which indicated that the substance recovered from a glass pipe in Fukagawa's possession weighed .018 grams and contained methamphetamine. The parties also agreed that,

if Julie Wood were called to testify, she would testify she followed normal accepted procedures in determining the information on this report, and that the pipe recovered under Maui Police Department Report Number 98-14511, after was [sic] tested there was .018 grams of crystal methamphetamine determined to be in that pipe, and it was visible to the naked eye.⁵

The defense called George Wesley Read, Ph.D., a professor of pharmacology, to testify on its behalf. Read was qualified as an expert in the field of pharmacology.⁶ Read testified, inter alia, that "[m]ethamphetamine has at least three currently-accepted uses and possibly a fourth." According to Read, methamphetamine has been used to treat obesity, narcolepsy, attention deficit hyperactive disorder (ADHD), and fatigue. Based upon his review of the available literature, Read testified that ranges of methamphetamine dosages used to treat obesity, narcolepsy, ADHD, and fatigue are: .01 to .04 grams; .05 to .06 grams; .005 to .015 grams; and .01 to .04 grams, respectively.⁷ With respect to the abuse of methamphetamine— i.e., use of the drug to achieve "euphoria and elation,"—Read testified that a "naive user"⁸ would use between .05 and .1 grams. When asked about the purity of drugs obtained on the street, Read explained that

there are papers in the technical literature that describe the purity, and it can be very impure, but often might be fifty percent of what is sold might be salt, but it can vary depending upon the purity, that is the conscientiousness of the lab preparing it and a lot of variables, so it is hard to speak generally about that.

You almost have to talk about a specific product, some specific products that's [sic] been analyzed, and then you see very clearly what the purity is . . . .

(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:

Q. [By defense counsel] In preparation for this hearing did you have a chance to view a Maui Police Department report lab analysis form?

A. [Read] Yes, I did.

Q. Do you have a copy in front of you?

A. I believe I do.

Q. Are you familiar with the procedures, examination, and analysis of substance by the crime laboratory?

A. If it is a typical one, yes. There are several different procedures. I am not sure I am familiar with the particular one used here on Maui, but they're usually fairly good tests.

Q. On this report do you see a determination of the weight of the substance?

A. I see there's .018 grams was scraped from the pipe.

Q. Doctor Read, in your expert opinion would eighteen milligrams or .018 grams produce a euphoric or pharmacological effect for an illicit user?

A. No. A person of—average normal person I would not expect that would produce any of the effects that they would be after. If it were pure methamphetamine, even if it were pure methamphetamine, even then I don't think it would produce the high that would be sought after.

Q. In your opinion would a person be able to use that .018 grams as an item of sale?

A. Not for illicit use. If it were from a drug company and known to be pure, it would have use therapeutically. At that level it could be used, but no physician or researcher would buy an uncertified drug, so I would never buy this for research purposes, and I don't think a physician would prescribe it not knowing its purity, but the question is how much is it really. You don't know. You would not want to prescribe an amount of a drug that you don't know how much active ingredients is [sic], because that might be one-tenth that amount, might be half that methamphetamine, so you'd get an unpredictable response not knowing how much drug is actually there.

(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:

Q. [By the prosecutor] Through your training and experience, do you know how crystal methamphetamine is used in a pipe like the one you tested?

A. [Lee] Yes.

Q. How?

A. They smoke it.

Q. How is it used? How is that pipe, itself, used?

A. What they do is on this pipe on the bulbous end, there's a little hole. They drop a granule of ice in there, and with a high-intensity torch or

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