State v. Kaneshiro

1

STATE OF HAWAI'I, Plaintiff-Appellee, v. BRYENT K.M. KANESHIRO, Defendant-Appellant

No. CAAP-20-0000566

Intermediate Court of Appeals of Hawaii

June 9, 2023

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE NO 1DTA-18-00712)

Alen M. Kaneshiro for Defendant-Appellant.

Brian R. Vincent Deputy Prosecuting Attorney for Plaintiff-Appellee.

Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Bryent K.M. Kaneshiro (Kaneshiro) appeals from the (1) October 4, 2019 "Notice of Entry of Judgment and/or Order and Plea/Judgment," (2) October 4 2019 "Amended Notice of Entry of Judgment and/or Order and Plea/Judgment," and (3) September 11, 2020 "Notice of Entry of Judgment and/or Order and Plea/Judgment," all entered by the District Court of the First Circuit^[1] (District Court) convicting him of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).^[2] Kaneshiro raises three points of error on appeal,^[3] contending that: (1) the "case must be dismissed pursuant to State v. Thompson where the complaint did not meet the requirements of HRS § 805-1";^[4] (2) the District Court erred in "denying [Kaneshiro]'s motion to suppress his responses to the [medical rule-out (MRO)] questions and all evidence and statements that followed as the 'fruit of the poisonous tree'";^[5] and (3) Kaneshiro "did not knowingly, intelligently and voluntarily waive his right to testify for purposes of the suppression motion."

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Kaneshiro's points of error as follows, and vacate and remand for a new trial.

(1) Kaneshiro argues that the Complaint was defective under HRS § 805-1^[6] because no witness with direct observations of Kaneshiro's misconduct "subscribed to" or "submitted a declaration in support of the [C]omplaint." Rather, the Complaint was signed by the prosecuting attorney. Whether the Complaint complied with applicable statute and/or rule is a question of law we review de novo. Thompson, 150 Hawai'i at 266, 500 P.3d at 451.

The Hawai'i Supreme Court recently held, in State v. Mortensen-Young, 152 Hawai'i 385, 397, 526 P.3d 362, 374 (2023), that HRS § 805-1 applies only to criminal complaints used to obtain a penal summons or arrest warrant. In other cases, such as the OVUII prosecutions at issue in Mortensen-Young, Hawai'i Rules of Penal Procedure (HRPP) Rule 7^[7] provides the proper framework to analyze the sufficiency of complaints. Id. at 399, 526 P.3d at 376. In Mortensen-Young, the supreme court held that the appellees were properly charged by complaint, signed by the prosecutor, for the offense of OVUII pursuant to HRPP Rule 7(d), which does not require that a "'charging instrument in a misdemeanor case be signed by anyone other than a prosecutor'" or "'subscribed under oath or made by declaration in lieu of an affidavit by anyone.'" Id.

Here, as in Mortenson-Young, HRS § 805-1 is inapplicable because the Complaint was not used to obtain a penal summons or arrest warrant. The Complaint set forth a concise and definite statement of the essential facts, was signed by the prosecutor, and referenced the statute that Kaneshiro allegedly violated, as required by HRPP Rule 7(d). Thus, the Complaint was sufficient to initiate the subject prosecution. See id. at 392, P.3d at 369; Thompson, 150 Hawai'i at 266-67, 500 P.3d at 451-52.

(2) Kaneshiro argues that because he was never advised of his Miranda^[8] rights when he was pulled over, his responses to the MRO questions were the product of custodial interrogation, and the District Court should have suppressed "any statement and evidence obtained subsequent to the MRO questions as the 'fruit of the poisonous tree.'"

Questions of constitutional law, such as the District Court's ruling on the motion to suppress, are reviewed "de novo to determine whether the ruling was 'right' or 'wrong.'" State v. Manion, 151 Hawai'i 267, 271-72, 511 P.3d 766, 770-71 (2022) (quoting State v. Lee, 149 Hawai'i 45, 49, 481 P.3d 52, 56 (2021)).

Suppression hearing

Kaneshiro's Motion to Suppress Statements (Motion to Suppress) requested suppression of the following:

1. Any statements made by [Kaneshiro] to Honolulu Police Department [HPD] Officer or other governmental personnel.

2. Any and all evidence seized or information gained by the [HPD] after [Kaneshiro] was placed under arrest, was not read his/her Miranda rights or was instructed that he/she did not have a right to have an attorney.

Kaneshiro principally argued what is the subject matter of the instant appeal - that he was in custody and subject to interrogation in violation of his Miranda rights when he was stopped by HPD Officer Arthur Gazelle (Officer Gazelle). At the November 7, 2018 hearing on Kaneshiro's Motion to Suppress, Officer Gazelle testified that he stopped Kaneshiro after observing Kaneshiro "traveling faster than the posted speed limit" on the highway; crossing over a "solid yellow line"; and failing to use turn signals. As Officer Gazelle activated his sirens, Kaneshiro eventually pulled over at a "very narrow" shoulder lane, where Officer Gazelle instructed Kaneshiro to take the off-ramp and "pull into the parking lot" of an elementary school. Kaneshiro began to slowly drive off the highway to the off-ramp, where he stopped on the side of the road rather than in the parking lot of the elementary school. Upon approaching Kaneshiro's vehicle, Officer Gazelle noticed a "strong odor of alcohol on [Kaneshiro's] breath" and that he had "red and glassy" eyes. Kaneshiro's speech was "sluggish" and "slightly slurred." Officer Gazelle asked Kaneshiro to exit his vehicle for a standard field sobriety test (SFST), to which Kaneshiro agreed.

Prior to the SFST, Officer Gazelle asked Kaneshiro MRO questions, including whether Kaneshiro had "any physical defect or speech impediment"; was "taking any medication"; had "a doctor or an eye doctor"; was "under the care of a dentist"; had "an artifical or glass eye"; and was "diabetic or epileptic." In response to whether he had any speech impediment or an artificial or glass eye, Kaneshiro stated that he "mumbles sometimes" and has glasses.

Officer Gazelle administered the SFST and determined that Kaneshiro was unable to safely operate his vehicle. Kaneshiro was placed under arrest and charged with OVUII and excessive speeding.

The District Court denied the Motion to Suppress, ruling as follows:

It is -- in this case, there is an excessive [(speeding)] count as well as the OVUII. Court finds it was an ongoing investigation. There was no express statement by Officer Gazelle, I believe, that Mr. Kaneshiro -- Mr. Bryent Kaneshiro was under arrest for the excessive speeding. So at that -- there was no express decision that he was in custody. At that point, it was an ongoing investigation on the OVUII.

And the other arguments, [Defense Counsel], in your memorandum, the state of the appellate decisions right now regarding the rule-out and regarding the consent to exit, as long as there's consent, there's nothing that has been indicated otherwise, his willingness to exit the car at this point. So based on the evidence thus presented, appellate decisions, court's again denying your motion to suppress.

Bench trial

On July 26 and October 4, 2019, a bench trial was held. At trial, Officer Gazelle testified that he observed Kaneshiro speeding, drifting over a yellow lane marking, crossing over into another lane, and suddenly braking and slowing down. Officer Gazelle testified that when he initiated the stop, Kaneshiro failed to pull over at the next safest area, and proceeded to stop in a shoulder lane, "[p]artially blocking [an] active lane[.]" Officer Gazelle instructed Kaneshiro to take the next off-ramp and pull into a parking lot of an elementary school, upon which Kaneshiro proceeded to travel at about "10 to 15 miles an hour" off the freeway, where he eventually came to a stop on the side of a road. Upon approach, Officer Gazelle "smelled a strong odor of alcoholic-type beverage" "emitting from [Kaneshiro's] breath," and noticed that his speech was "sluggish." Officer Gazelle asked Kaneshiro if he would be willing to participate in a SFST, and Kaneshiro agreed.

Officer Gazelle testified that he asked Kaneshiro the MRO questions, to which Kaneshiro "mentioned that he mumbles and that he wears prescription glasses." Officer Gazelle also testified that in response to whether Kaneshiro had a glass eye, it was "odd" that Kaneshiro stated that he wore "glasses," and that based on his observations, "there was nothing that interfered" with Kaneshiro's "ability to perform the [SFST]."

Officer Gazelle could not remember any observations he made during the SFST and had to refresh his recollection by reviewing a SFST form that he had filled out on the date of the incident. Officer Gazelle then testified that he arrested Kaneshiro for OVUII and excessive speeding based on how Kaneshiro was "driving," "speaking," "smelt [sic]," "looked," "acting," "performed his [SFST]," and his "preliminary alcohol screening" result.^[9] Officer Gazelle testified that in his opinion, Kaneshiro was "drunk," "impaired," and not driving or able to drive "safely."^[10] However, Kaneshiro's driving, by itself, did not give Officer Gazelle the impression that Kaneshiro was "impaired" or under the influence.^[11]

Kaneshiro made a motion for judgment of acquittal, which the District Court granted for the excessive speeding charge, but denied for the...