State v. Hebert, 25754.

• Decision Date: 28 February 2006
• Docket Number: No. 25754.,25754.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Frederick Ryan HEBERT, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 852

132 P.3d 852

STATE of Hawai`i, Plaintiff-Appellee, v. Frederick Ryan HEBERT, Defendant-Appellant.

No. 25754.

Intermediate Court of Appeals of Hawai`i.

February 28, 2006.

Certiorari Denied April 7, 2006.

Paul J. Cunney, R. Patrick McPherson, and Victor J. Bakke (Paul J. Cunney, a Law Corporation), on the briefs, for defendant-appellant.

Mangmang Qiu Brown, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

BURNS, C.J., WATANABE, and LIM, JJ.

Opinion of the Court By WATANABE, J.

Defendant-Appellant Frederick Ryan Hebert (Hebert or Mr. Hebert) appeals from the judgments entered by the District Court of the First Circuit¹ (the district court or the court) on March 19, 2003, following a bench trial, convicting and sentencing him for operating a vehicle under the influence of an intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (Supp.2004),² and disregarding a red signal, in violation of HRS § 291C-32(a)(3)(A) (1993).³

Hebert's sole contention on appeal is that the district court erred as a matter of law when it failed to give his trial counsel an opportunity to make a closing argument following the presentation of evidence. Based on our review of the record and the relevant case law, we conclude that Hebert waived closing argument, and, accordingly, we affirm the judgments entered below.

BACKGROUND

The transcripts of Hebert's trial, held on March 11 and 19, 2003, indicate that at about 10:28 p.m. on November 10, 2002, Honolulu police officers Wade Nakagawa (Officer Nakagawa) and Darren Nihei (Officer Nihei) were patrolling in separate cars along North Nimitz Highway when each observed a vehicle make a left turn through a red light at the intersection of Nimitz Highway and Waiakamilo Road and proceed mauka⁴ on Waiakamilo Road. Officer Nakagawa turned on his siren, activated the blue light atop his car, and pursued the vehicle, which stopped about one hundred to one hundred fifty feet from North Nimitz Highway on the right shoulder of Waiakamilo Road.

Officer Nakagawa then approached the driver's side of the vehicle, which was operated by Hebert, and, after informing Hebert of the reason for the stop, requested Hebert's driver's license, registration, and proof of insurance. Standing approximately three to six feet away from Hebert during the exchange, Officer Nakagawa noticed that "[Hebert's] eyes were red, little bit glassy." Upon receiving the requested documents from Hebert, Officer Nakagawa went back to his car to "run checks" and write up a citation for "running the red light."

Officer Nihei testified that when he arrived at the scene, he initially "took up a cover position outside [his] vehicle." He went to talk to Hebert after Officer Nakagawa had gone to his car to "run his checks." Officer Nihei stated that while talking to Hebert, he "could smell a light odor of an alcoholic type beverage" and what smelled like "mouth wash" emanating from Hebert. Officer Nihei thereafter observed "a small bottle of mouth wash" in Hebert's vehicle, some "mouth wash coming from [Hebert's] chin," and that Hebert's "eyes were a little red and glassy." Officer Nihei also recalled that Hebert did not slur while speaking, did not stumble or stagger, appeared coherent, and was "[v]ery cooperative."

Officer Nihei administered to Hebert three field sobriety tests (FSTs), including the horizontal gaze nystagmus (HGN) test. During the administration of the tests, Hebert admitted that he had consumed about "two shots of some kind of liquor" and "didn't even see [the officers] at the light." Based on Hebert's performance on the FSTs, Officer Nihei opined that Hebert failed all three tests, was "intoxicated," and could not safely operate his vehicle. Hebert was thereafter arrested and charged with one count of OVUII and one count of disregarding a red signal.

At Hebert's trial, the district court, over Hebert's objection, admitted into evidence the results of the FSTs administered to Hebert. The defense then called Officer Nihei to briefly testify as a witness and, after a few questions, rested its case.

The following exchange then took place:

THE COURT: All right. And I just wanna', I guess, give the Tachibana.

[DEFENSE COUNSEL]: Yes, please.

THE COURT: Okay. So, Mr. Hebert, you need to understand that you do have a right to tes — you have a right not to testify, and [Plaintiff-Appellee State of Hawai`i (the State)] has the burden of proving the case against you beyond a reasonable doubt. But, on the other hand, you also have a constitutional right to testify in your defense if you wish to testify. So, the Court needs to be satisfied that you are — you understand that and that you — it's your decision in consulting with your counsel not to give testimony in your own defense in this case. Is that your — you understand that you do have a right to testify?

[HEBERT]: I — I understand what you're saying there.

THE COURT: And that, you are volun — you know, it's your decision to not to [sic] testify?

[HEBERT]: Yes.

THE COURT: Okay. All right. Anything further?

[DEPUTY PROSECUTOR]: Nothing, Your Honor.

THE COURT: Okay. All right. Now, the Court's noting here that [Hebert] is charged under H.R.S. 291E-61(a)(1), which states that the offense is committed if a person operates a vehicle under the influence of an intoxicant, or ... operates or assumes actual physical control of [a] vehicle while under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty.

The Court finds that the State has met its burden of proving here ... beyond a reasonable doubt that [Hebert] is guilty of the offense charged. That the officers gave credible testimony as to their observation of [Hebert] and their administration of the [FSTs], and the results of those tests, and [Hebert's] performance on the test. And, the Court is finding that based on the evidence the Court has heard that... the State has met its burden in this case of proving beyond a reasonable doubt [Hebert] did operate his vehicle while impaired, unable to operate his vehicle in a careful and prudent manner as required by the statute. Therefore, the Court finds [Hebert] guilty as charged.

And ... did you want to say anything to the Court before I impose the sentence, Mr. Hebert?

[HEBERT]: No. No thank you.

THE COURT: And, [Defense Counsel], did you want ...

[DEFENSE COUNSEL]: At ... this time I would like findings under Rule 23c as to my motion to strike the [HGN] test. I'd also ask that the Court stay sentencing pending the appeal on this case.

....

THE COURT: The Court wants to take a short recess because I want to ...

[DEFENSE COUNSEL]: Right.

THE COURT: ... look at my notes before I make the findings under Rule 23.

[DEFENSE COUNSEL]: Sure.

THE COURT: All right. So, we'll take a recess.

(Court reconvenes)

THE COURT: All right. Just a preliminary question here before I give my findings. [Defense Counsel], you're asking — I just wanna' clarify because the [National Highway Traffic Safety Administration (NHTSA)] standards haven't come into evidence. Are you asking — what are you asking? You're asking me to rule based on the officer's administration based on the NHTSA standards, but ...

[DEFENSE COUNSEL]: Right. It's not my obligation to put the NHTSA standards into the record. Therefore, without the standards how can we tell the officer actually testified correctly.

THE COURT: Okay. But, I've got the officer testifying that he was trained under the NHTSA standards and that he followed those procedures. If you wanna' challenge him, I think you got a problem with challenging him, either when you cross-examine or in terms of showing the Court what — how he didn't follow the standards. Do you understand what I'm saying? Because I've got his testimony that he was trained under NHTSA and that's the standards that he followed.

[DEFENSE COUNSEL]: I can still challenge it because the Prosecutor has to bring the standards in in order to say that he actually did it to the standards. You see what I mean? What are the standards under NHTSA?

THE COURT: Okay. Well, I don't necessarily agree with that. But, here — here's what I'm finding on your — and — and you can interject if you wanna' clarify what you want findings on to make sure that you've got all the findings that you want for the record.

I'm finding on the issue of the HGN that Officer Nihei testified that he was trained and certified. Trained under the NHTSA standards. And that, he administered the test in accordance with the standards that he'd been trained under. I understand there's a dispute about whether that's the case or not here. But, the Court's find — the Court's satisfied the test was properly adminis — administered based on the testimony of Officer Nihei, including the 45 degree part of the three-part HGN test. That the officer testified that he did the 45 degrees, admittedly not with any instrument, but — but by feel. And — but the Court's finding that's not necessary that he do it with an instrument as long as he's testifying that he was doing it at the 45 degree angle, and I'm satisfied here.

And, unlike Ito, and I did review Ito again, that officer has testified that he was trained and certified, unlike the officer in the Ito case, and, also, that he administered all three parts of the HGN test, which was one of the problems in Ito that only two of the three parts were administered.

But, the Court also finds that even if I strike all of the HGN results, that the rest of the evidence is sufficient to meet the State's burden to prove beyond a reasonable doubt that [Hebert] was impaired in this case. And, therefore, I make that finding also. That even — even excluding the HGN results the Court finds more than sufficient evidence to meet the State's burden of beyond a reasonable doubt that [Hebert] was impaired at the...