State v. Kekuewa

• Decision Date: 10 August 2006
• Docket Number: No. 27248.,27248.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Philip Kala KEKUEWA, III, Defendant-Appellant.
• Court: Hawaii Court of Appeals

145 P.3d 812

STATE of Hawai`i, Plaintiff-Appellee, v. Philip Kala KEKUEWA, III, Defendant-Appellant.

No. 27248.

Intermediate Court of Appeals of Hawai`i.

August 10, 2006.

Carmel A. Kwock, Deputy Public Defender, on the briefs, for Defendant-Appellant.

Sonja P. McCullen, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.

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

Opinion of the Court by LIM, J.

Philip Kala Kekuewa, III (Defendant or Kekuewa) appeals the March 22, 2005 judgment of the District Court of the First Circuit (district court)¹ that convicted him of speeding, driving without a license (DWOL) and driving under the influence of an intoxicant (DUI).²

On appeal, Defendant challenges only his DUI conviction. He attacks the oral accusation, which charged him with DUI "for your second offense." Defendant contends this was insufficient under State v. Domingues, 106 Hawai`i 480, 107 P.3d 409 (2005) (per curiam), in which the supreme court denominated "an offense that occurs within five years of a prior conviction for an offense under this section[,]" Hawaii Revised Statutes (HRS) § 291E-61(b)(2) (Supp.2003), an attendant circumstance and thus an essential element of the DUI offense that has to be alleged in the accusation under pain of dismissal as defective. Following Domingues, we agree with Defendant and reverse the judgment insofar as it convicted him of DUI. We therefore do not reach Defendant's challenge to the sufficiency of the DUI evidence adduced at trial.

I. Background.

A.

At the beginning of the bench trial, the deputy prosecuting attorney (DPA) read the oral charge to Defendant. The October 11, 2004 transcript reads as follows:

Mr. Kekuewa, on or about the 15th day of April 2004, in the City and County of Honolulu, State of Hawaii, island of Oahu, you did operate or assume actual physical control of a vehicle while under the influence of alcohol in an amount sufficient to impair your normal mental faculties or the ability to care for yourself and guard against casualty thereby violating Section 291E-61 of the Hawaii Revised Statutes for your second offense.

On that same date, 15th day of April, 2004, you did, in the City and County of Honolulu, State of Hawaii, operate or permit the operation of or cause the operation of (indiscernible) the vehicle on a public highway without a current official certificate of inspection in violation of Section 286-25, Hawaii Revised Statutes.

And on or about that same day, the 15th of April 2004, you did, in the City and County of Honolulu, State of Hawaii, you did operate a motor vehicle without first being appropriately examined and duly licensed as a qualified driver of that vehicle in violation of Section 286-102 of the Hawaii Revised Statutes. That's your third offense for driving without a license.

And sir, on that same day in the City and County of Honolulu, State of Hawaii, you did drive a vehicle at a speed greater than the maximum speed limit stated on signs placed by the director of transportation with respect to highways under the director's jurisdiction by traveling at a speed of 88 miles per hour in a 50-mile-per-hour zone thereby violating Section 291C-102([b]) of the Hawaii Revised Statutes. Do you understand those charges?

Immediately after reading the charges, the DPA moved to nolle prosequi what the record indicates were insurance and registration citations. The district court dismissed those charges.

B.

Testimony during the State's case revealed the following. On April 15, 2004, at about 1:45 in the morning, a police officer facing east on Kalaniana`ole Highway waiting to make a left turn saw a lone, black Dodge pickup truck heading in the opposite direction onto the H-1 freeway. "In my opinion, it was way excess of the 35-mile-per-hour speed limit." The officer made a U-turn and pursued, but the truck was pulling away from him "at a very high rate of speed."

The officer radioed ahead to another police officer he knew was stationed there. The other officer was parked on the Wai`alae Avenue overpass and lasered the truck going 88, then 80, miles per hour on the freeway, where the speed limit is 50 miles per hour. The pursuing officer activated his lights and siren and continued the chase, attaining 115 miles per hour in the process. He noticed the truck weaving within its lane. With the aid of two other patrol cars, the pursuing officer was able to box in and pull the truck over just before the University of Hawai`i off-ramp.

The three police officers approached the truck and discovered Defendant in the driver seat and another man in the passenger seat. The truck's license plate read "PKK3RD." Because the height of the lifted truck and its tinted windows prevented a side view of the interior, Defendant was asked to open his door and alight from the vehicle. Complying, Defendant appeared to fumble with the lock. Upon request, Defendant was able to provide documentation of insurance and registration. Defendant could not, however, produce a driver's license, and later told the officers that he did not have one.

Among the three of them, the police officers observed that Defendant's face was flushed and his eyes were red, watery, bloodshot and glassy. A very strong odor of alcohol emanated from him. He was "very unsteady on his feet." One of the officers thought Defendant was going to fall several times. When the same officer told Defendant he was being stopped for speeding, Defendant responded "huh," and his voice "appeared slurred, very slurred." The officer opined that Defendant was under the influence of alcohol.

The police placed Defendant and his passenger in separate patrol cars and transported them to the law school parking lot, where yet another police officer administered some field sobriety tests to Defendant. That officer noticed Defendant's eyes were red, glassy and watery. A strong odor of an alcoholic beverage was on his breath. While awaiting the tests, Defendant rested his head on the officer's patrol vehicle.

On the walk-and-turn test, Defendant could not keep his balance during the instructional phase of the test. He started the test too soon, took eleven instead of nine steps in each direction, and on the eleventh step going, asked, "oh, what now, what I gotta do[?]" Also, Defendant failed to put heel to toe on both the ninth step going and the tenth step returning. On the one-leg-stand test, a thirty-second exercise, Defendant raised his left foot for ten seconds, put it down, then raised his right foot for ten seconds. For the last ten seconds of the test, Defendant just left both feet down. Based on Defendant's performance on the tests, the administering officer opined that Defendant was impaired and in no condition to drive his truck.

The administering officer placed Defendant under arrest for DUI. Although Defendant had been "extremely cooperative" and willing to take the field sobriety tests, he became "very uncooperative" at the police station. Defendant was yelling and upset, and refused to acknowledge the administering officer as the officer read him the implied consent forms.

C.

Just before the State rested, the district court admitted State's exhibit 1 showing that Defendant did not have a driver's license on the day of the incident. Then the DPA proffered State's exhibit 3:

[DPA]: Well, at this time, we would ask to move into evidence the certified court abstract of [Defendant] as a self-authenticating certified public record. I mean, a self-certification, self-certified record, your Honor.

[DEFENSE COUNSEL]: For what purpose?

[DPA]: This is for the purpose of, under State vs (indiscernible) and that is the —

THE COURT: He's referring to Domingus [sic].³

[DPA]: Domingus [sic], thank you. For proving the elements of the prior offense in the case-in-chief rather than at sentencing.

[DEFENSE COUNSEL]: Your Honor, we would object as, first of all, there's other additional charges and convictions on this abstract that is [sic] irrelevant, prejudicial, and essentially, this is hearsay, your Honor. We would object to this entire abstract coming in.

THE COURT: Well, the Domingus [sic] case makes it very clear that if you are charging someone under 291E-61 as a subsequent offense that it must be alleged and proven at trial that it is a subsequent offense, that is a second within five years or a third within five years. If this is certified—you agree that this is a certified document?

[DEFENSE COUNSEL]: It has a seal on it, your Honor, but we would object to all this other information coming in.

THE COURT: Well, that's my next step. If you agree that it's a certified document and you agree it's a public record, it is both self-authenticating and is not hearsay under the public records exception to the hearsay rule, so it's not hearsay. There's an exception for public record and it is self-authenticating if it's certified, that is under seal, and if the purpose for this is to introduce evidence as to the subsequent DUI and the subsequent driving without license—is that purpose for this?

[DEFENSE COUNSEL]: It's not to —

THE COURT: And I will consider only those items in there going to that issue. I will not consider any of the other matters in the abstract.

(Footnote supplied.) The district court admitted State's exhibit 3. The State then proffered State's exhibit 2, a "certified court calendar from July 21st, 2003 for [Defendant] regarding a[sic] arrest and conviction for DUI under 291E-61," which the district court admitted for the same limited purpose and over the same defense objections.

After the State rested, Defendant moved for a judgment of acquittal on all charges. The district court acquitted Defendant of the safety check charge, as there was no evidence admitted at trial to support it, but denied the motion as to the speeding, DWOL and DUI charges.

D.

After Defendant's passenger indicated he would take the Fifth if called to testify, Defenda...