State v. Sunderland, 26641.

CourtSupreme Court of Hawai'i
Citation168 P.3d 526
Docket NumberNo. 26641.,26641.
PartiesSTATE of Hawai`i, Plaintiff-Appellee, v. Joseph SUNDERLAND, Defendant-Appellant.
Decision Date21 September 2007
168 P.3d 526
STATE of Hawai`i, Plaintiff-Appellee,
Joseph SUNDERLAND, Defendant-Appellant.
No. 26641.
Supreme Court of Hawai`i.
September 21, 2007.
Reconsideration Denied October 19, 2007.

Deborah L. Kim, Deputy Public Defender, for defendant-appellant.

Janet R. Garcia, Deputy Prosecuting Attorney, for plaintiff-appellee.

NAKAYAMA, J., with whom DUFFY, J., joins; MOON, C.J., Concurring and Dissenting; LEVINSON, J., Dissenting; and ACOBA, J., Concurring and Dissenting Separately.

Opinion of the Court by NAKAYAMA, J.

Defendant-Appellant, Joseph Sunderland ("Sunderland"), appeals from the third circuit district court's1 June 23, 2004 judgment convicting him of the offense of Promoting a Detrimental Drug in the Third Degree, in violation of Hawai`i Revised Statutes ("HRS") § 712-1249.2 Sunderland's sole

168 P.3d 527

point of error on appeal asserts that his possession of marijuana at home and for religious purposes was protected by the free exercise clause of the first amendment to the United States Constitution, as well as his right to privacy under article I, section 6 of the Hawai`i Constitution.

For the following reasons, we hold that Sunderland's argument is without merit and affirm the district court's judgment of conviction.


The material facts of the present case are not in dispute.

On June 27, 2003, Officer Denise Smith ("Officer Smith") was investigating a report of a missing adolescent. Officer Smith was informed that the missing child was known to retreat to the Sunderland residence. Upon arrival, Officer Smith spotted Sunderland on the lanai and inquired about the child. Sunderland responded that he did not know and went inside the house to check. From her vantage point on the lanai, Officer Smith observed three girls sleeping on a futon bed in the living room. She subsequently observed a six-inch marijuana pipe on the kitchen table. When Sunderland returned, Officer Smith asked him to retrieve the pipe. She asked him who the pipe belonged to, and Sunderland responded, "That's mine. I use it for religious purposes." Sunderland then produced a "religious card" from his wallet indicating his membership in a religious organization called the "Cannabis Ministry." Sunderland informed Officer Smith that it was his right to exercise his religious beliefs. Officer Smith instructed Sunderland not to say anything further and placed him under arrest.

At the police station, Sunderland waived his Miranda rights and made a statement. He claimed that he had been practicing his religion since he was sixteen years of age. He further indicated that he had used the pipe to smoke marijuana that morning, and he forgot to put it away.3

On January 9, 2004, Sunderland was orally charged with committing the offense of Promoting a Detrimental Drug in the Third Degree. Sunderland thereafter filed a "Motion To Dismiss Or Judgment Of Acquittal" asserting that the charged conduct constituted protected activity pursuant to his constitutional right to the free exercise of religion.4 The matter proceeded to trial on January 23, 2004.

At trial, the prosecution orally charged Sunderland for a second time, as follows:

The charge is that on or about the 27th day of June, 2003, in the District of North Kohala, County and State of Hawaii, Joseph Sunderland did knowingly possess marijuana, thereby committing the offense of Promoting a Detrimental Drug in the Third Degree, in violation of Section 712-1249, Hawaii Revised Statutes, as amended.

Following the close of the prosecution's case in chief, Sunderland called Reverend Roger Christie ("Christie") to the witness stand. Christie testified that he was ordained in the "Religion of Jesus Church," and that he subsequently organized a sect called the "Hawaii Cannabis Ministry." Christie explained that his religion centers around the sacramental ingestion of cannabis, and that the use of cannabis is mandatory in his ministry. He pointed to multiple passages from the Bible and interpreted them as indirect references to the cannabis plant. For example, Christie claimed that "the word `kannabosm' in the holy anointing oil of Moses and the christening oil of Jesus is cannabis." According to Christie, cannabis "has a unique way of elevating the consciousness[,]" distinct from other mind-altering substances, and that prohibiting the use of

168 P.3d 528

cannabis would have a "devastating" effect on his ministry.

Sunderland subsequently exercised his right to testify. Sunderland admitted possession of the pipe recovered by Officer Smith, and he further admitted that the residue in the pipe was marijuana. However, Sunderland thereafter testified that he was a member of Christie's ministry and used marijuana for religious purposes. Sunderland claimed that ingesting marijuana was a religious experience that produced a "very unique state of mind" that brought him closer to what he considered "God." Sunderland explained, "And ... I believe that — in part of ... understanding God, I believe that God put the holy herb onto this earth to help mankind to better understand Him."

At the close of the evidentiary portion of trial, the court rejected Sunderland's argument that his constitutional right to the free exercise of religion precluded his prosecution for possessing marijuana. First, the court assumed that Sunderland's religious beliefs were sincere, as follows:

THE COURT: The question of whether or not it is a legitimate, seriously held religious belief, that's something that is almost impossible for a Court to address, whether or not somebody sincerely believes in a religious matter. We fight wars over who has the only true God.

If a judge happened to be an atheist, how would you convince him or her that it's just — I'm not going there. I will assume that there is a — that the religious aspect is met.

(Emphasis added.) The court nevertheless perceived a compelling state interest in precluding the use and possession of illicit drugs in the presence of minors:

This case is one where he's using and possessing marijuana in his home where at least at the time when he is arrested there's four minors. And the state does have a compelling interest in protecting minors, juveniles, children, from an environment where marijuana is being used, from an environment where its use is encouraged. Because minors use marijuana. And this Court sees the problems that are created by that all the time.

So in this case, not some other case, in this case I do find a compelling state interest in prohibiting the possession or use of marijuana for religious purposes ... in the home when minors are present[.]

The court thereafter found Sunderland guilty of the charged offense, and sentenced him to a $150 fine and $25 in fees.

Sunderland filed a timely notice of appeal on June 17, 2004.


Sunderland's sole point of error on appeal questions the constitutionality of his prosecution for possessing marijuana in the privacy of his home for religious purposes. "We review questions of constitutional law de novo, under the right/wrong standard." Onaka v. Onaka, 112 Hawai`i 374, 378, 146 P.3d 89, 93 (2006).


A. Sunderland Failed to Preserve His Right to Privacy Argument on Appeal.

As an initial matter, we note that Sunderland failed to preserve his constitutional right to privacy argument on appeal.

In his opening brief, Sunderland claims that trial counsel "framed the constitutional question as a blend of freedom of religion and privacy interests...." However, that assertion is belied by the record. The parties did not address any right to privacy argument in any of their written submissions before the circuit court.5 Sunderland attempts

168 P.3d 529

to bootstrap a privacy argument by referring to the following arguments orally presented before the circuit court at a hearing conducted on May 19, 2004:

The next question is: Has the state shown a compelling interest? I say that these things about driving a car while you're under the influence of marijuana, all these things are red herrings because that's not what this case is about. This case is about someone in his own home possessing a small amount of marijuana for religious purposes. That is the only issue in this case.

It is not an issue in this case whether or not you can smoke marijuana and drive a car, whether or not pregnant women should smoke marijuana, any of those others [sic] things. This is an adult male in his own home smoking marijuana for religious purposes. That is the issue. There's no issue beyond that.

So whether or not any of these other things is a good idea isn't before this Court, and it's not what we're addressing. They're not asking, hey, he's going down the highway at ninety miles an hour smoking a large joint, and now you're getting him in trouble for that. No. He's getting in trouble for having it at his house. And that's all the issue is. The issue is not a precedent for doing it some place else, only in your own home for religious purposes.


The state — I'm not here to litigate whether or not to permit someone not to drive a car while intoxicated on marijuana. That's a totally different issue than can you do something at your own house, which would bring us to this general idea of what is a compelling state interest.


This case is only about the use of marijuana in the home. And the Supreme Court of Alaska, finally, in not addressing the same issue, addressing a slightly different issue, basically said that the privacy rights, okay — and it's not an issue here. They have done that case in Hawaii. And on a privacy level, you're not allowed to have marijuana. They have raised that.


So I would say that ... it is not reasonable to say that there's a compelling state interest against the religious use of marijuana in your own home because that's the only issue here. He's found in his home with just a small amount. It's not I've got a ton in my home....

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