State v. Nishi

• Decision Date: 21 May 1993
• Docket Number: No. 15709,15709
• Citation: 9 Haw.App. 516,852 P.2d 476
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Michael Akio NISHI, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 476

852 P.2d 476

9 Haw.App. 516

STATE of Hawaii, Plaintiff-Appellee, v. Michael Akio NISHI, Defendant-Appellant.

No. 15709.

Intermediate Court of Appeals of Hawai'i.

May 21, 1993. ^*

Syllabus by the Court

1. Under Hawaii Rules of Evidence (HRE) Rule 701, for a lay witness' opinion testimony to be admissible, (1) the witness must have personal knowledge of the matter that forms the basis of testimony of opinion; (2) the testimony must be based rationally upon the perception of the witness; and (3) the opinion must be helpful to the jury.

2. Under HRE Rule 701, the "rational" test means the opinion is one which a normal person would form on the basis of the observed facts.

3. Under HRE Rule 701, where relevancy requires, a foundation must be laid as to the witness' personal knowledge of facts to which the observed facts are being compared.

4. Foundational evidence regarding a police officer's personal knowledge and training with respect to the police department's field sobriety testing procedures is required before the police officer may testify that in his opinion the defendant failed to pass the field sobriety tests performed by the defendant.

5. A judgment of conviction following a bench trial will be affirmed if viewing the evidence in the light most favorable to the State, there is substantial evidence to support the determination of the lower court.

6. The prosecution may prove a defendant's prior conviction for operating a motor vehicle which was not insured under a no-fault policy by use of a certified copy of the defendant's traffic abstract.

7. An uncounseled prior conviction may support an enhanced sentence where imprisonment is not imposed.

8. Where the lower court did not impose any term of imprisonment for the defendant's offense of operating a motor vehicle which was not insured under a no-fault policy, the State was not required to show that he was counseled at the time of his prior conviction for the same offense.

9. Unless conceded by the defendant, the State is required to show, by evidence satisfactory to the court, the fact of the defendant's prior conviction.

Patsy M. Kim, Deputy Public Defender, on the brief, Honolulu, for defendant-appellant.

Doraine Meyer Belnap, Deputy Pros. Atty., City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and WATANABE, JJ.

PER CURIAM.

In a jury-waived trial, the District Court of the First Circuit (district court) convicted defendant-appellant Michael Akio Nishi (Defendant) of (1) driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes (HRS) On appeal, Defendant contends that (A) the district court reversibly erred in admitting the police officer's opinion as to the results of the field sobriety tests the officer administered to Defendant; (B) the evidence was insufficient to establish beyond a reasonable doubt that Defendant was guilty of DUI; and (C) the court erred in sentencing Defendant for No No-Fault Insurance as a second time offender because the State of Hawaii (State) failed to submit legally sufficient proof of Defendant's first conviction. We affirm the convictions. Regarding the No No-Fault Insurance conviction, however, we vacate the sentence and remand for resentencing.

                § 291-4(a)(1) (1985) 1;  (2) operating a motor vehicle which was not insured under a no-fault policy (No No-Fault Insurance) in violation of HRS § 431:10C-104(a) (1987 Sp. Pamphlet) 2;  and (3) operating a vehicle without a certificate of inspection (No Safety Check) in violation of HRS § 286-25 (1985). 3  After finding that the No No-Fault Insurance violation was a second offense, the district court imposed an enhanced sentence of a $3,000 fine on Defendant. 4
                

FACTS

At trial, the State's evidence established the following facts. Just before midnight on July 20, 1990, police officer Edmund Barroga (Officer Barroga) of the Honolulu Police Department (HPD) was driving westbound on the H-1 Freeway near the Houghtailing overpass. He observed a Honda station wagon driven by Defendant traveling approximately one car length ahead of his vehicle in the fast lane. He noticed the station wagon "straddling the left yellow line closest to the medial barrier." The station wagon then "swerve[d] to the right several times riding over the chatter bumps on the right side of that lane." As his vehicle got closer to the station wagon he noticed "an expired registration sticker, also an expired safety check on the bumper of the [station wagon]."

Officer Barroga pulled over the station wagon at the Ahua off-ramp. He approached the station wagon and asked Defendant for his driver's license and no-fault insurance card. The officer observed that Defendant's eyes were red, glassy, and bloodshot and noted a strong odor of alcohol emanating from Defendant's breath. Defendant stated that "his driver's license was suspended and he had no no-fault insurance."

Officer Barroga then asked Defendant to step out of the station wagon to take a field sobriety test, to which Defendant consented. As Defendant got out of his car, he appeared "nervous and shaken." Defendant said that he was taking antibiotics, but was not under a doctor's care. Defendant did not complain of any physical condition that might affect his performance of the test.

The officer had Defendant perform the field sobriety test, consisting of three separate tests, namely: (1) "heel-to-toe" test; (2) "leg raised" test; and (3) "arch back" test. Before Defendant performed each of After the State completed its case-in-chief, Defendant chose not to put on any evidence. The court found Defendant guilty of DUI, No No-Fault Insurance, and No Safety Check. ⁵ Regarding the No No-Fault Insurance offense, the court sentenced Defendant as a two-time offender.

the three tests, Officer Barroga demonstrated and explained each test, and Defendant appeared to understand the instructions. In Officer Barroga's opinion, Defendant failed to pass each of the three tests. Therefore, the officer arrested Defendant for DUI.

DISCUSSION

A.

Officer Barroga testified that he had Defendant perform the "heel-to-toe," "leg raised," and "arch back" tests. He opined that Defendant failed (1) the "leg raised" test because Defendant "did not touch heel to toe all nine [steps]" and "appeared unsteady when he did [the test; ]" (2) the "leg raised" test because Defendant "dropped his left leg and touched the ground twice to regain his balance[;]" and (3) the "arch back" test because Defendant "bobbed back and forth ... [and] his eyelids also fluttered [when the eyes should have been closed]." ⁶ Defendant objected to the opinion testimony on the ground of "no proper foundation having been laid." Defendant argued the necessity of a foundation regarding "how [Officer Barroga] derives these opinions, what [they are] based on, what training and experience he's had." The court overruled Defendant's objection.

Hawaii Rules of Evidence (HRE) Rule 701 provides as follows:

Opinion testimony by lay witnesses. If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

The commentary to HRE Rule 701 states that Rule 701 "retains the common-law requirement that lay opinion be based upon firsthand knowledge[.]" Thus, for an opinion testimony to be admissible under HRE Rule 701, "the witness must have personal knowledge of matter that forms the basis of testimony of opinion; the testimony must be based rationally upon the perception of the witness; and of course, the opinion must be helpful to the jury (the principal test)." 1 J. Strong, McCormick on Evidence (hereafter McCormick ) § 11 at 45-46 (4th ed. 1992) (footnotes omitted). The "rational" test means whether the opinion "is one which a normal person would form on the basis of the observed facts." 3 J. Weinstein & M. Berger, Weinstein's Evidence (hereafter Weinstein's Evidence ) p 701 at 701-18 (1992) (footnote omitted). Also, "where relevancy requires, a foundation must be laid as to the witness' personal knowledge of facts to which the observed facts are being compared." ⁷ McCormick § 11 at n. 22. Finally, "Rule 701 is a rule of discretion." Weinstein's Evidence p 701 at 701-31. We apply the foregoing principles in analyzing Defendant's contention.

"[A] lay witness may express an opinion regarding another person's sobriety, provided the witness has had an opportunity to observe the other person." State v. Murphy, 451 N.W.2d 154, 155 (Iowa 1990). However, the Hawaii Supreme Court observed that:

"[F]ield sobriety tests are designed and administered to avoid the shortcomings of casual observation. 1 Am.J.Crim.L. 96 (1967)." State v. Arsenault State v. Wyatt, 67 Haw. 293, 302, 687 P.2d 544, 551 (1984). In Hawaii, it is common knowledge that, where a police officer reasonably believes that a motorist is DUI, the officer will order him out of the car and administer field sobriety tests to the motorist with his consent. Police departments conduct training sessions for police officers relating to the administering of field sobriety tests and print and issue to officers field sobriety tests work sheets containing instructions to be given to motorists undergoing these tests. In re Doe, 9 Haw.App. 406, ----, 844 P.2d 679, 681 (1992). In fact, the record of this case suggests the use by Officer Barroga of a "424 form" containing instructions regarding the field sobriety tests prescribed by the HPD.

                115 N.H. 109, 111, 336 A.2d 244, 246 (1975).  "They are premised upon the relationship between intoxication and the externally manifested loss of coordination it causes."  Id. at 113, 336 A.2d at 247.   They essentially require a suspected driver to go

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