State v. Uchima

Alen M. Kaneshiro for petitioner

Brian R. Vincent for respondent

McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., CONCURRING IN PART AND DISSENTING IN PART, AND CONCURRING IN THE JUDGMENT, AND WITH NAKAYAMA, J., DISSENTING FROM THE JUDGMENT

OPINION OF THE COURT BY POLLACK, J.

In Hawai‘i, a defendant in a criminal case has a statutory right to appeal from a district or circuit court judgment. In situations when defense counsel has inexcusably or ineffectively failed to timely file the notice of appeal, we have determined that not allowing the appeal to proceed would result in the deprivation of the defendant's due process rights.

Defendants in criminal cases also have a statutory right to seek review of an Intermediate Court of Appeals' (ICA) judgment on appeal by filing an application for writ of certiorari to this court. The effect of counsel's failure to timely file a certiorari application is no different than counsel's failure to timely file a notice of appeal--the defendant has forfeited a statutory right and been deprived of the effective assistance of counsel. Upon review of applicable precedent, we hold that certiorari review is a critical stage of the criminal proceedings during which a defendant has the constitutional right to effective assistance of counsel, which includes counsel's procedural compliance with the steps required to timely file an application for a writ of certiorari.

In this case the application for writ of certiorari was untimely filed due to an error of defense counsel or as a result of a computer system error. Regardless of the source of the error, defense counsel failed to ensure the timely filing of the certiorari application, which counsel has acknowledged. As a result, the defendant was deprived of the constitutional right to the effective assistance of counsel on discretionary review. Under these circumstances, we may consider the merits of the issues raised in the certiorari application, and we elect to do so here. Based upon our review of the certiorari application, we affirm the ICA's judgment on appeal.

I. BACKGROUND AND TRIAL

On May 31, 2016, the State of Hawai‘i charged Jason K. Uchima by complaint in the District Court of the First Circuit (district court) with operating a vehicle under the influence of an intoxicant (OVUII) in violation of HRS § 291E-61(a)(1)¹ and/or

(a)(3).² Uchima pleaded not guilty to the charge.

Prior to trial, Uchima filed a motion to suppress evidence seized or information obtained by the Honolulu Police Department (HPD) after he was arrested, including all statements made by him to law enforcement. Uchima argued that he was in custody when he was instructed by HPD Officer Richard Townsend to exit his vehicle and asked to participate in a field sobriety test (FST) as he "was clearly not free to leave," and that he was subject to interrogation when Officer Townsend asked him "medical rule out" questions³ because such questions are likely to elicit an incriminating response. Uchima maintained that the police's failure to provide him with Miranda warnings prior to custodial interrogation violated his rights under the federal and state constitutions and required the suppression of his statements to law enforcement.

The parties stipulated to consolidate the evidentiary hearing on the motion to suppress with the trial of the OVUII charge.⁴ A bench trial was held on November 4, 2016, and January 24, 2017.⁵ The State presented the testimony of one witness, Officer Townsend.

Officer Townsend testified that, on May 14, 2016, around 12:45 a.m., he stopped Uchima's vehicle after he observed it crossing over the broken white lines of the road for approximately 30 to 40 yards along Beretania Street before the Punchbowl intersection. Officer Townsend stated that, when he pulled the vehicle over, Uchima was in the driver's seat and had the odor of alcohol, slurred speech, red and watery eyes, and his face was flushed. The officer testified that he explained to Uchima why he had pulled him over and asked for Uchima's driver's license. Officer Townsend said that he had to ask Uchima questions "a couple of times" because he could not understand what Uchima was saying.

Based on his observations, Officer Townsend testified, he asked Uchima if he would participate in an FST, and Uchima consented. According to the officer, Uchima appeared unsteady on his feet as he exited his vehicle. Officer Townsend stated that he explained the three tests consisting of the FST--the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test--to Uchima before proceeding with the tests. Officer Townsend related that, during administration of the FST, Uchima stated that he understood the instructions to each of the tests.

With regard to the horizontal gaze nystagmus test, Officer Townsend testified that Uchima was instructed to keep his head still and follow the officer's pen only with his eyes but that Uchima could not keep his head still despite being repeatedly told do so. As to the walk-and-turn test, Officer Townsend testified that he instructed Uchima to take nine "heel-to-toe" steps using an imaginary line, turn, then return nine heel-to-toe steps back, and to count aloud the number of steps he took. According to Officer Townsend, Uchima did not count out loud, took ten steps instead of nine on each pass, did not touch his heel to his toe during his steps, stepped off line on each step, had his hands raised, paused once for several seconds to keep balance, and swayed as he walked. On the one-leg stand test, Officer Townsend testified that Uchima's performance deviated from the instructions: he had difficulty balancing while his right leg was raised, his arms were raised to

about mid-torso rather than at his sides, and he hopped on his planted foot during the last ten seconds of the test.

Officer Townsend stated that following the conclusion of the three tests he informed another officer of Uchima's performance, and the second officer placed Uchima under arrest.

In response to defense counsel's questions, Officer Townsend testified that he went over the medical rule-out questions with Uchima prior to conducting the FST. Officer Townsend explained that he asked Uchima whether he was under the care of a doctor or dentist, whether he was taking any medication, whether he was diabetic or epileptic, and whether he had any physical disabilities. Uchima responded in the negative to the questions, Officer Townsend testified.

After the conclusion of the evidence, the district court ruled upon the motion to suppress. The district court determined that Uchima was not subjugated to the will of the examiner and that the situation only became "custodial" at the conclusion of the third test. As to whether an interrogation occurred, the court concluded that the questions asked of Uchima when he was in the car were not likely to yield incriminating information and that the same was true with questions as to whether Uchima would like to exit the car, whether he was willing to participate in an FST, and whether he understood the instructions provided during each of the three tests. The court also determined that the answers to the medical rule-out questions "would have no probative value, no inculpatory or exculpatory value." The district court accordingly denied Uchima's motion to suppress.⁶

The district court thereupon found Uchima guilty of the OVUII charge and sentenced him to community service, fine, and a one-year license revocation.⁷ Uchima appealed from the district court's January 24, 2017 Notice of Entry of Judgment and/or Order and Plea/Judgment, and its February 23, 2017 Notice of Entry of Judgment and/or Order and Plea/Judgment entered (collectively, Judgment).

II. UCHIMA'S APPEAL

A. ICA Proceedings

On appeal to the ICA, Uchima contended that the district court erred in denying the motion to suppress, arguing that his right to remain silent under article I, section 10 of the Hawai‘i Constitution was violated because he was never advised of his Miranda rights and that his verbal statements and non-verbal communicative acts were the product of custodial interrogations. (Citing State v. Tsujimura, 140 Hawai‘i 299, 400 P.3d 500 (2017).) Uchima also argued that the officer's medical rule-out questions and questions as to whether he understood the instructions on the FST were likely to evoke an incriminating response regardless of how he answered, and that his actual performance on the FST was a communicative response. Uchima asserted that the district court's error was not harmless beyond a reasonable doubt and that without the officer's erroneously admitted testimony, there was not substantial evidence to support his conviction. The State responded that the district court did not err and the Judgment should be affirmed.

In a summary disposition order, the ICA concluded that the admission of Uchima's performance on the FST did not violate his right against self-incrimination because performance on...