State v. Tominiko, SCWC–29535.

• Court: Supreme Court of Hawai'i
• Writing for the Court: Opinion of the Court by Court NAKAYAMA, J.
• Citation: 266 P.3d 1122,126 Hawai'i 68
• Parties: STATE OF HAWAI‘I, Respondent–Plaintiff–Appellee, v. Robert N. TOMINIKO, Petitioner–Defendant–Appellant.
• Docket Number: No. SCWC–29535.,SCWC–29535.
• Decision Date: 26 August 2011

126 Hawai'i 68

266 P.3d 1122

STATE OF HAWAI‘I, Respondent–Plaintiff–Appellee,

v.Robert N. TOMINIKO, Petitioner–Defendant–Appellant.

No. SCWC–29535.

Supreme Court of Hawai‘i.

Aug. 26, 2011.

Craig W. Jerome, Deputy Public Defender, (James S. Tabe and Jon N. Ikenaga, Deputy Public Defenders, on the briefs) for petitioner-defendant-appellant.

Brian R. Vincent, Deputy Prosecuting Attorney, on the briefs, for respondent-plaintiff-appellee.

RECKTENWALD, C.J., NAKAYAMA, and DUFFY, JJ., Circuit Judge AYABE, assigned by reason of vacancy, with ACOBA, J., concurring and dissenting separately.

Opinion of the Court by Court NAKAYAMA, J.

Petitioner–Defendant–Appellant Robert N. Tominiko ("Tominiko") asks us to consider whether he was lawfully detained and subsequently charged with operating a vehicle under the influence of an intoxicant. The facts presented at trial show that Tominiko was near an intersection with a gathering of people who were drinking beer and soda. Upon receipt of a complaint, a police officer arrived but did not see Tominiko drinking beer. The group dispersed, and Tominiko walked slowly to his car. The officer asked to see his identification, but Tominiko continued walking to his car and got in. When the officer asked Tominiko to exit his vehicle, Tominiko drove away slowly. The officer chased Tominiko and told him to stop driving but Tominiko drove seven feet before being stopped by a vehicle traveling in the opposite direction. The officer then caught up with Tominiko, and, while approaching Tominiko's vehicle, noticed beer bottles in Tominiko's car. Tominiko was subsequently charged in part with Operating a Vehicle Under the Influence of an Intoxicant ("OVUII") and Driving Without Motor Vehicle Insurance. The Driving Without Motor Vehicle Insurance charge contained the allegation that the conduct occurred on a public roadway, but the OVUII charge did not. The District Court of the First Circuit ("district court") convicted Tominiko of OVUII, and he appealed. In his application for writ of certiorari, Tominiko presents the following questions: 1) "Whether the [Intermediate Court of Appeals ("ICA") ] gravely erred in concluding that Tominiko's conviction would not be reversed due to the insufficiency of the [OVUII] charge[;]" and 2) "Whether the ICA gravely erred in concluding that the trial court did not err in denying Tominiko's motion to suppress under the totality of the circumstances in this case." We hold that: 1) the charge was not insufficient under the liberal construction standard because, when reading the charge as a whole, it can be reasonably construed to charge a crime; and 2) Tominiko was subjected to an illegal seizure and the evidence obtained as a result of that seizure must be suppressed.

I. BACKGROUND

A. Factual and Procedural Background

On August 13, 2008, the State of Hawai‘i ("the prosecution") charged Tominiko with: 1) OVUII in violation of Hawai‘i Revised Statutes (HRS) §§ 291E–61 (a)(1) & (a)(3) (Supp.2009);¹ 2) Operating a Vehicle After License and Privilege Have Been Suspended or Revoked for OVUII in violation of HRS § 291E–62(a)(1) & (a)(2) (2007);² and 3) Driving Without Motor Vehicle Insurance, in violation of HRS § 431:10C–104(a) (2005).³ The complaint read as follows:

(08287580) On or about the 2nd day of August, 2008, in the City and County of Honolulu, State of Hawaii, ROBERT TOMINIKO did operate or assume actual physical control of a vehicle while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Section 291E–61(a)(1) and/or (a)(3) of the Hawaii Revised Statutes. ROBERT TOMINIKO is subject to sentencing as a first offender in accordance with Section 291E–61(b)(1) of the Hawaii Revised Statutes, and/or ROBERT TOMINIKO is subject to sentencing in accordance with Section 291E–61(b)(2) of the Hawaii Revised Statutes, where ROBERT TOMINIKO committed the instant offense as a highly intoxicated driver, as a first offense.

(08287582) On or about the 2nd day of August, 2008, in the City and County of Honolulu, State of Hawaii, ROBERT TOMINIKO, a person whose license and privilege to operate a vehicle had been revoked, suspended, or otherwise restricted pursuant to Section 291E–62 or to Part III of Chapter 291E or Section 291E–61, or 291E–61.5, or to Part VII or Part XIV of Chapter 286 or Section 200–81, 291–4, 291–4.4, 291–4.5, or 291–7 of the Hawaii Revised Statutes as those provisions were in effect on December 31, 2001, did operate or assume actual physical control of any vehicle in violation of any restrictions placed on his license, and/or while his license or privilege to operate a vehicle remained suspended or revoked, thereby committing the offense of Operating a Vehicle After License And Privilege Have Been Suspended or Revoked for Operating a Vehicle Under the Influence of An Intoxicant in violation of Section 291E–62(a)(1) and/or (a)(2) of the Hawaii Revised Statutes. ROBERT TOMINIKO is subject to sentencing as a first offender in accordance with Section 291E–62(b)(1) of the Hawaii Revised Statutes.

(08282586) On or about the 2nd day of August, 2008, in the City and County of Honolulu State of Hawaii, ROBERT TOMINIKO did operate or use a motor vehicle upon a public street, road, or highway of the State of Hawaii at a time when such motor vehicle was not insured under a motor vehicle insurance policy, thereby committing the offense of Driving Without Motor Vehicle Insurance, in violation of Section 431:10C–104(a) of the Hawaii Revised Statutes . ROBERT TOMINIKO is subject to sentencing as a first offender in accordance with Section 431:10C–117(a) of the Hawaii Revised Statutes .

(Some Emphasis Added.)

The latter two charges were dismissed at trial. Tominiko did not object to the charge or move to dismiss it at any point during the district court's proceedings. State v. Tominiko, No. 29535 at 2, 123 Hawai‘i 299, 2010 WL 2637771 (App. June 30, 2010) (mem.) (lead opinion).

On December 1, 2008, Tominiko orally moved to suppress evidence because the police officer did not have reasonable suspicion to stop Tominiko.

At the hearing on the motion to suppress, Officer Antwan Stuart ("Officer Stuart") testified that he was on duty at around midnight on the night in question, when he was dispatched to investigate a report that a group of people was arguing at an intersection. When he arrived, he saw approximately fifteen or twenty people drinking beer and soda, and eating. Members of the group started picking up items, and running or walking away quickly. Tominiko started walking towards his vehicle, which was the only vehicle parked in the area. Officer Stuart asked for Tominiko's identification because Tominiko "was the only person that didn't leave in a hurry" and he was able to detain Tominiko. Officer Stuart was interested in obtaining Tominiko's identification to "investigate what was going on over there, if indeed there was a[n] argument or if there was a fight." Officer Stuart also knew that a lot of people drink in that area.

Tominiko mumbled something, kept walking, got into his car, and tried to start his car. Officer Stuart followed Tominiko to the car and asked him to exit the vehicle, but Tominiko started the car and slowly drove away. Officer Stuart chased Tominiko, and told him to stop driving. Tominiko drove about seven feet, before a vehicle coming from the opposite direction forced him to stop.

Officer Stuart approached Tominiko's window and directed his flashlight at the back seat of Tominiko's car to see if anyone else was in the car. He noticed empty forty-ounce beer bottles in Tominiko's car. He asked Tominiko to turn off the car and provide identification. Tominiko said he left his license at home, but had a state identification card.

On cross-examination, Officer Stuart testified that as he approached the intersection, he heard people talking loudly, but could not determine if there had been an argument. No one was fighting when he approached the intersection. He did not remember Tominiko having a beer bottle in his hand when he first saw Tominiko.

After the hearing, the district court denied Tominiko's motion to suppress. The district court made the following oral findings and conclusions:

My obligation is to state my essential findings on the record in a motion to suppress. My essential findings are that at approximately midnight on August 2nd, 2008, Officer Stuart was dispatched to investigate a possible argument call where 15 people are arguing at Ahonui and School Street.

He arrived on the scene. He saw a group of 15 or 20 people eating and drinking, including drinking beer. It appeared to be a social gathering. There was loud talk. He could not tell if that talk was arguing, but there was no physical fighting.

He approached defendant to investigate and what—what is going, ask for his I.D. [sic] Defendant kept going, went to a car. Officer approached [sic] and asked him out of the car [sic] so he could continue his investigation and get the I.D. Defendant ignored that request, started the car, attempted to drive away, and got blocked by another car. And he said he left his license—told the officer he left his license at home. And there were empty beer bottles in the back of the car.

Based upon that, it's my conclusion that there was reasonable suspicion for Officer Stuart to stop the defendant. A reasonable officer in Officer Stuart's position, had reasonable suspicion to believe that there was criminal activity afoot and therefore had the right to stop defendant.

And once defendant refused to comply with his simple request for identification, the officer had the further right to pursue the defendant and stop him.

So I

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