State v. Kwong

• Decision Date: 04 March 2021
• Docket Number: SCWC-19-0000334
• Citation: 482 P.3d 1067
• Parties: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Maggie KWONG, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

482 P.3d 1067

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.Maggie KWONG, Petitioner/Defendant-Appellant.

SCWC-19-0000334

Supreme Court of Hawai‘i.

MARCH 4, 2021

Earle A. Partington and R. Patrick McPherson, Honolulu, for petitioner

Brian R. Vincent for respondent

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE AYABE, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

This case requires us to consider when a court must take judicial notice of a fact because it is generally known. Defendant Maggie Kwong was convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), Hawai‘i Revised Statutes (HRS) § 291E-61(a)(1) (2014), after a bench trial in the District Court of the First Circuit.¹

During Kwong's motion for judgment of acquittal, and again during closing arguments, Kwong's attorney asked the district court to take judicial notice that 60 miles per hour (mph) is equivalent to 88 feet per second as a matter that is generally known.² The district court appeared to conclude that it could not take judicial notice of the conversion between mph and feet per second and that Kwong would have to present expert testimony. The court found Kwong guilty of OVUII, and the Intermediate Court of Appeals (ICA) affirmed.

We agree with Kwong that the court was required to take judicial notice that 30 mph is equivalent to 44 feet per second. The "necessary information" requirement in Hawai‘i Rules of Evidence (HRE) Rule 201(d) requires a party to provide enough information for the court to determine whether judicial notice is proper. HRE Rule 201(d) cmt. If a fact is generally known or a matter of common knowledge, a party need not provide additional information to justify judicial notice. 21B Charles Alan Wright, Arthur R. Miller & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5107.1 n.35 (2d ed. 2020). Here, all the facts needed to infer 44 feet per second from 30 mph — 5280 feet in a mile, 60 minutes in an hour, and 60 seconds in a minute — are common knowledge, and the math to convert mph to feet per second is straightforward. Thus, judicial notice of this fact was mandatory.

Nevertheless, since taking judicial notice would not have affected the outcome of this case, any error was harmless. Kwong's other issues are without merit. Accordingly, we affirm Kwong's conviction.

II. BACKGROUND

In July 2017, the State charged Kwong with OVUII in violation of HRS § 291E-61(a)(1).³ The case proceeded to a bench trial in March 2018.

A. District Court Trial

1. Officer Wong's Testimony

Honolulu Police Department Officer Josh Wong testified on behalf of the State. At approximately 3:30 A.M. on June 23, 2017, Officer Wong stopped Kwong for an unsafe lane change violation. Officer Wong had been in the left lane traveling eastbound on Kapiolani Boulevard about two-and-a-half car lengths behind a pickup truck. Kwong had been in the right lane. They were both traveling between 30 and 40 mph.

When they were approximately 30 feet from the intersection of Kapiolani Boulevard and Isenberg Street, Kwong abruptly cut from the right lane of Kapiolani across the middle lane and into the far-left lane, without using a turn signal. She pulled in front of Officer Wong and behind the pickup truck, which had been starting to make a left turn onto Isenberg Street. Officer Wong testified, "[I]n order to avoid a rear-end collision[,] I slammed on my brakes. At that point, whatever was on my seat that wasn't fastened, all the stuff went onto the floorboard."

On cross-examination, Officer Wong affirmed the times and distances involved:

Q. And this all happened in less than 30 feet, going 30 miles an hour?

A. Yes.

Q. Do you know how many feet you travel at 30 miles per hour in one second?

A. No.

Q. It's 44. So you're saying that this vehicle, in the amount of time it took to go 30 feet, which would take -- God -- less than two thirds of a second, was able to go from Lane 1 to Lane 3?

A. Yeah.

After crossing into the left lane of Kapiolani Boulevard, Kwong turned left onto Isenberg Street. Officer Wong followed her and activated his lights. Kwong pulled over immediately.

Officer Wong approached Kwong's car and told her he pulled her over for an unsafe lane change. Kwong apologized and told him she had changed her mind at the last minute. While Kwong was talking, Officer Wong noted several indicia of intoxication: he could smell a "very strong odor of alcohol coming from her breath"; Kwong's eyes were "red, kind of bloodshot, and glassy"; and her speech was slurred. Accordingly, Officer Wong asked her to participate in standardized field sobriety tests (SFSTs). Kwong responded, "Yeah, it's okay. I did have a couple of drinks," and got out of the car. Officer Wong testified that Kwong stumbled after getting out of her vehicle.

Kwong did the walk-and-turn and one-leg-stand tests on the road, which was flat and partially lit. Officer Wong testified that he had to "go over the instructions for each test at least two to three times before she understood." During the instructional stage of the walk-and-turn test — when Kwong was supposed to stand still with her feet aligned heel-to-toe — she had been "unable to maintain her balance three times." Ultimately, Kwong did not perform the test properly, missing heel-to-toe, stepping off the line, and raising her arms for balance several times. According to Officer Wong, Kwong also did not perform the one-leg-stand test properly. Throughout the test, she swayed from side to side, raised her arms, and had to put her foot down once. After the conclusion of the SFSTs, Officer Wong arrested Kwong for OVUII.

2. Motion for Judgment of Acquittal

After Officer Wong testified, Kwong's counsel moved for a judgment of acquittal and the following exchange occurred:

[COUNSEL]: In the light most favorable to the State -- and I'm going to have to ask the judge to take judicial notice of something. In -- physics never changes. If you're going 60 miles per hour, you're going 88 feet per second. It never changes. It's a constant. It's like there's 12 inches in a foot.

THE COURT: Yeah. I -- I can't take judicial notice of that.

[COUNSEL]: Why?

THE COURT: You -- you want an expert, you bring an expert.

[COUNSEL]: It's not an expert. It's like 12 inches in a foot. Everybody knows it. It's like the sun comes up in the morning from the east.

THE COURT: Right, right. Keep -- continue. Continue.

[COUNSEL]: Okay. So if a car travels 88 feet every second at 60 miles per hour, at 30 feet it's going to travel 44 feet in one second. He's saying that this person drove from Lane 1 to Lane 3. He was 30 feet from the intersection, traveling approximately 35 miles per hour, even if he's slowing down, and got in front of him before he reached the intersection. It's physically impossible, based on his testimony, for that to happen. It could not happen. There would have been a crash. He could not have slowed down in one second and avoided that collision. That's not what happened, because it's physically impossible to happen. It can't happen. It could not have happened as he testified.

THE COURT: Okay. What else?

The district court denied Kwong's motion for acquittal:

THE COURT: Okay.

All right. In review of -- of the one witness that we had, getting to your point as far as whether or not -- the testimony of Officer Wong was that he was driving along, going on Kapiolani, and there was a truck in front of him about to make a left turn into Isenberg, noticed the defendant's car to the far right, and his testimony was that she cut in front of him. He had to brake in order to avoid a collision. Physics aside at this point, I don't have any expert as far as what's going -- but that's his testimony. And it's also corroborated by the fact that when he explained to her why he pulled her over, Defendant in her own statement said, I'm sorry; I've decided too late, I believe, you know, to make a decision. So that is consistent with his statement that she cut in front of him, and he had to avoid the collision and step on his brakes. He also testified that all of the -- whatever things he had on the front seat, because he had to brake suddenly, were taken off the seat and, I guess, pushed to the front of his car.

....

So based on that, in the light most favorable, I'll deny your motion for judgment of acquittal.

3. Kwong's Testimony

Kwong testified that on June 23, 2017, she had been driving a friend home. Her friend had been giving her directions and told her to turn at the last minute, and Kwong admitted cutting across two lanes on Kapiolani to make the turn. However, Kwong disputed Officer Wong's testimony that the lane change had been so abrupt he had to slam on his brakes.

Kwong also controverted Officer Wong's testimony that she had stumbled exiting her car. She testified that she was wearing high-heeled boots and that her heel caught on the edge of the door briefly when she got out, but that she did not "stumble." Kwong contended that her high heels also made it difficult to perform the SFSTs. However, Kwong took the boots off for the one-leg-stand test.

On cross-examination, Kwong testified that her friend worked at a bar and Kwong had spent approximately four-and-a-half hours at the bar waiting for her friend to get off work. She drank while at the bar — she had one beer with pizza and "sipped" on three shots of whiskey over the course of the night.

4. Closing Arguments and Verdict

In his closing, Kwong's counsel incorporated the argument he had made in support of Kwong's motion for judgment of acquittal. He contended, "[I]t's still the Defense's position that the officer's testimony is not credible, because it's physically impossible to have occurred what he testified to."

The district court found Kwong guilty: "[B]ased on the testimony of Officer Wong, looking at the -- the driving itself, and her performance on the field sobriety test, the Court finds that Ms. Kwong -- or the State has proven beyond a reasonable...