State v. Kido, 24887.
| Decision Date | 22 August 2003 |
| Docket Number | No. 24887.,24887. |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Sydney T. KIDO, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Mary Ann Barnard, on the briefs, for defendant-appellant.
Daniel H. Shimizu, Deputy Prosecuting Attorney, City & County of Honolulu, on the briefs, for plaintiff-appellee.
Sydney T. Kido (Kido) appeals the circuit court of the first circuit's1 January 8, 2002 judgment, as amended on January 15, 2002, that convicted him of promoting a dangerous drug in the third degree, a violation of Hawaii Revised Statutes (HRS) § 712-1243 (1993)2 (Count I), and unlawful use of drug paraphernalia, a violation of HRS § 329-43.5(a) (1993)3 (Count II). Because the court directed, over Kido's objection, that he testify before his other defense witness, and because this constitutional error was not harmless beyond a reasonable doubt, we must set aside the amended judgment. But because there was sufficient evidence to support the convictions, we vacate and remand for a new trial.
Kido's two-day jury trial started on June 14, 2001. Honolulu police officer Russell Pereira (Officer Pereira) testified first for the State. Officer Pereira remembered that on January 26, 2001, at about 6:30 a.m., he was on uniform patrol in Chinatown when he noticed Hector Arroyo Garcia (Garcia), who was "wanted in connection with a theft case[,]" sitting on a curb fronting 1169 Maunakea Street. "Mr. Kido was to the left of him and asleep at the time." Officer Pereira walked over from his police sedan and started questioning Garcia. During the interrogation, Officer Pereira noticed Kido get up—"probably from the loud [police] radio or just my voices [(sic) ] talking with [Garcia.]" From no more than ten feet away, Officer Pereira saw that Kido had his left fist clenched. Kido then moved to the side and dropped something onto the ground. "There's a distinctive clink like a glass hitting pavement." Kido immediately positioned his left foot over the object, "possibly [to] smash the object[,]" but Officer Pereira grabbed the cuff of Kido's pant leg, lifted Kido's foot and recovered a glass pipe about four inches long from the pavement. Officer Pereira's training and experience indicated that it was a crack (rock cocaine) pipe. Kido protested that the pipe was not his, and invited Officer Pereira to test it for fingerprints.
On cross-examination, Officer Pereira testified that he parked his patrol car on the same side of the street the two men were sitting. It was perhaps closer to 6:00 a.m. at the time, and twilight, but with street lamps providing some illumination. "It is not necessarily well-lit but visible enough." Officer Pereira acknowledged that people were talking and police radios were on during the encounter, but maintained that he could distinctly hear the "pink" of the glass pipe hitting the pavement. He confirmed that he did not see anything sticking out of either side of Kido's fist before Kido dropped the pipe. Officer Pereira knew of Kido's habit of carrying a backpack and a fanny pack, but could not remember whether Kido had either with him at the time of the bust. Officer Pereira remembered asking another police officer who had arrived at the scene to dust the pipe for latent fingerprints. Officer Pereira confirmed that no source of ignition for the pipe—a lighter or matches—or other contraband was recovered from Kido.
On redirect examination, Officer Pereira informed the jury that police radio transmissions are a little louder than conversational level, but intermittent and not constant. He recalled that in four-and-a-half years of police work and numerous drug cases, he had never been able to extract a latent fingerprint from a glass pipe.
Honolulu police officer Jeffrey Nagai (Officer Nagai) remembered that he went to 1169 Maunakea Street that morning to back up Officer Pereira. While he was watching Officer Pereira interrogate Garcia, Officer Nagai heard "a tinking sound" from Kido's vicinity. When he looked in that direction, he saw Officer Pereira move Kido's leg. Officer Nagai illuminated the scene with his flashlight and saw the glass pipe on the pavement where Kido's left foot had been. As for the lighting conditions at the time, Officer Nagai remembered that it was, On cross-examination, Officer Nagai remembered that Kido had a fairly large backpack with him at the time, as well as a fanny pack.
Honolulu police officer Craig Miki (Officer Miki) related that he, too, was dispatched to back up Officer Pereira on the morning of January 26, 2001. When he arrived, he saw Officer Pereira talking to Kido, with Officer Nagai "covering" and Garcia sitting on the curb. There was no one else present. Officer Pereira told Officer Miki what had just happened and showed him a glass pipe, "the kind of pipe used to smoke crack cocaine[.]" Officer Pereira asked Officer Miki to dust the pipe for latent fingerprints. Officer Miki did, but all he could get were smudges. He related that a fingerprint on glass is very easily smudged or smeared. Officer Miki noticed "white residue inside of [the pipe] and a brown mesh stuffed at the end of it." The white residue was very easy to see. When shown the glass pipe in court, Officer Miki remarked that it looked cleaner to him than when he first saw it. It was Officer Miki who submitted the pipe to the police evidence room. On cross-examination, Officer Miki maintained that in his six years of police work and his many drug cases, he had never been successful in lifting fingerprints from a glass pipe.
After stipulating with the defense as to the chain of custody of the glass pipe, from Officer Miki to the police criminalist, Shirley Brown (Brown), the State called Brown to the witness stand. Brown testified that she removed and analyzed the residue in the pipe and determined that it contained cocaine. The residue weighed 0.009 grams. Brown explained that the glass pipe looked "almost clean" in court precisely because she had removed the residue with solvent in order to do her analysis. On cross-examination, Brown agreed that a gram of crack cocaine is about the size of a marble. She also acknowledged that the tests she performed were not capable of determining how much of the residue was cocaine and how much was other substances. On redirect examination, Brown confirmed that, before she analyzed the residue, she could see the "white brownish coating ... more or less throughout the pipe."
After Brown's testimony, court adjourned for the day. The next day, court reconvened late due to the absence of a juror. An alternate juror was seated, and the State then rested. Defense counsel tendered a motion for judgment of acquittal as to Count I, which was denied. For his first witness, Kido called Garcia, but the State requested a bench conference. The following transpired:
Kido testified that he had been homeless for about five weeks before the January 26, 2001 incident. He had been homeless—"[o]n and off"—before. That morning, he went to 1169 Maunakea Street to see a friend who worked at the Dalisay Restaurant at that address to borrow forty dollars. Kido got there a little after 6:00 a.m. and dozed off. He awoke when he heard voices. "When I woke there were two individuals around this guy named Kimo and another person Hector Garcia." He had seen Kimo around on the streets but knew little else about him. Garcia he was better acquainted with, but not by much. Kido did not talk to the two men. He just went back to sleep. Kido had his "tote bag" on the ground beside him. Next to this "rather large" tote...
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