State v. Yihong Zhang

457 P.3d 845 (Table)

STATE of Hawai‘i, Plaintiff-Appellant,

v.YIHONG ZHANG, Defendant-Appellee

NO. CAAP-19-0000338

Intermediate Court of Appeals of Hawai‘i.

February 13, 2020.

On the briefs:

Brian R. Vincent, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellant.

Alen M. Kaneshiro, for Defendant-Appellee.

(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)

SUMMARY DISPOSITION ORDER

Plaintiff-Appellant State of Hawai‘i (State ) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment (Suppression Order ), entered on March 13, 2019, in the District Court of the First Circuit, Honolulu Division (District Court ).¹

Over the State's objection, the District Court consolidated a hearing on Defendant-Appellee Yihong Zhang's (Zhang ) November 16, 2018 Motion to Suppress Statements (Motion to Suppress ) with his bench trial. At the March 13, 2019 hearing, the court did not expressly rule on the Motion to Suppress, but, instead, found Zhang not guilty of Operating a Vehicle Under the Influence of an Intoxicant (OVUII ), in violation of Hawaii Revised Statutes (HRS ) § 291E-61(a)(1) (Supp. 2017).² The Supression Order, however, also reflects that the court granted the Motion to Suppress.³

On appeal, the State contends that the District Court erred in: (1) consolidating the hearing on the Motion to Suppress with trial; and (2) failing to make an explicit ruling on the motion and to clarify specifically what was suppressed. The State seeks remand to the District Court for an explicit ruling and for clarification of what was suppressed, so that the State can determine whether there is sufficient evidence to proceed to trial.

Zhang concedes that the District Court erred by consolidating the hearing with trial but contends that the District Court's ruling was adequate for appellate review and that double jeopardy bars retrial in this case.

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 by the parties, we resolve the State's points of error as follows:

(1) In State v. Chang, 144 Hawai‘i 535, 556, 445 P.3d 116, 137 (2019), the Hawai‘i Supreme Court overruled prior precedent by holding that "trial courts may not consolidate a motion to suppress hearing with a trial." The court gave this new rule prospective effect, stating: "This requirement will be effective in trials beginning after the filing date of this opinion[,]" i.e., June 28, 2019. Id. Because Zhang's purported trial occurred on March 13, 2019, the rule announced in Chang does not apply. Even prior to Chang, however, a trial court could only "hear a motion to suppress contemporaneously with a trial if both the State and the defendant agree to the procedure[.]" Id. at 553, 445 P.3d at 134 (referring to conclusions in State v. Texeira, 62 Haw. 44, 609 P.2d 131 (1980), and State v. Doyle, 64 Haw. 229, 638 P.2d 332 (1981) ).

Here, the parties did not agree to hold a consolidated suppression hearing with trial, and the District Court confirmed at the beginning of the March 13, 2019 hearing that "it will just be motions." After testimony and argument on the Motion to Suppress concluded, the following discussion occurred:

THE COURT: Okay. All right.

[ (Addressing defense counsel) ], you didn't put it in your motion. At this point you want to consolidate the motion for trial? Right now I'll consider what you have—what we've seen at this point.

[DEFENSE COUNSEL]: Consolidate for trial? Yes, Your Honor, we would like to do so.

THE COURT: All right. Any further argument?

[DEPUTY PROSECUTING ATTORNEY (DPA) ]: Well, I would note that we have not arraigned—

THE COURT: You waive arraignment?

[DEFENSE COUNSEL]: We'll waive arraignment as well.

THE COURT: Okay.

[DPA]: The State does not waive arraignment.

THE COURT: Well, arraign him then.

[DPA]: I don't know if that's proper. The State would also object at this point to consolidating the motion with the trial.

THE COURT: Okay. It's not your call at this point; right?

Anything else?

[DPA]: Fine. Nothing from the State, Your Honor.

THE COURT: Okay.

[DEFENSE COUNSEL]: Well, incorporating—you know, Your Honor, if this court is willing to incorporate the motion into trial, this court is willing to suppress the standard field sobriety test and everything beyond, you know, there is simply not proof beyond a reasonable doubt that Mr. Zhang was operating his vehicle while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or guard against casualty.

Um, you know, the driving observed was not that bad, and, you know, there is indicia but, um, you know, there is no—no real nexus to a lot of these observations and impairment. So simply put, Your Honor, there's insufficient evidence to prove the case beyond a reasonable doubt.

THE COURT: Okay. Any rebuttal?

[DPA]: Your Honor, with all due respect to the court, um, the State has proceeded on these motions based on the fact that there was not a consolidation. Now that there—defendant did not want to consolidate the motions with trial and the State has elicited questions from the officer based on that fact.

The State does have a right to now refuse consolidation because we have gone through these motions based on that theory. So we would ask the court to only rule on the motions. That is the only thing that the State elicited testimony on.

THE COURT: Well, there are times when we do a motion and at the point when the motion is done that the defense would want to consolidate. So I think it's a proper situation.

[DPA]: But the State—

THE COURT: Anything you want to say?

[DPA]:—would also have to agree.

THE COURT: I don't believe so. Okay. Anything else?

[DPA]: No, Your Honor.

THE COURT: All right. So I do find that there was a reason for the stop. There was a reason for further investigation as to the OVUII because of certain indicia. However, based on even the testimony of Officer Saul regarding the field sobriety test and in hindsight feeling that he should have gotten an interpreter, therefore the weight given to the field sobriety test is—is lessened at this point.

So court finds that State has failed to prove beyond a reasonable doubt that Mr. Zhang was under the influence of alcohol to a point where his normal mental faculties was impaired or he was unable to care for himself and guard against casualty. So I'll find him not guilty.

From this exchange, it is evident that the State did not agree to the District Court's purported consolidation. Absent such agreement, even prior to Chang, it was error for the District Court to consolidate the Motion to Suppress with trial.

(2) Rule 12(e) of the Hawai‘i Rules of Penal Procedure (HRPP ) states:

(e) Ruling on motion. A motion made before trial shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue or until after verdict; provided that a motion to suppress made before trial shall be determined before trial. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.

(Emphasis added.)

At the outset, the parties dispute whether the District Court ruled on the Motion to Suppress. The State contends that the court "fail[ed] to make an explicit ruling." Zhang argues, on the other hand, that the court "effectively denied the motion to suppress," by indicating at the March 13, 2019 hearing that it considered evidence of the field sobriety test, but gave the evidence "lessened weight," in finding Zhang not guilty.

We conclude that the District Court did not explicitly rule on the Motion to Suppress during the March 2013 hearing, and it is not clear from the hearing transcript whether the court suppressed the statements that were the subject of the motion. However, the Supression Order expressly states: "Mot[ion] to Suppress—granted." The written order controls over the oral statements the District Court made at the March 13, 2019 hearing. See Kono v. Abercrombie, No. CAAP-11-0000755, 2013 WL 1758960, at * 4 (Haw. App. April 24, 2013) (Mem. Op.) (citing numerous cases). It is therefore at least clear that the Motion to Suppress was granted.

The question still remains whether in granting the Motion to Suppress, the District Court stated its essential findings on the record, in compliance with HRPP Rule 12(e). The Supression Order is lacking in that regard, so we look to the oral statements made by the court at the March 13, 2019 hearing. At that time, the District Court stated that "there was a reason for the stop" of Zhang and "[t]here was a reason for further investigation as to the OVUII because of certain indicia." Thus, it appears the District Court found there was reasonable suspicion to stop Zhang and nothing was suppressed based upon that stop and further investigation. The District Court then cited the arresting officer's testimony regarding the field sobriety test and "hindsight feeling that he should have gotten an interpreter," but indicated that such testimony went to the weight of the evidence. The District Court then purported to find Zhang not guilty because the "State ha[d] failed to prove beyond a reasonable doubt that Mr. Zhang was under the influence of alcohol to a point where his normal mental faculties was impaired or he was unable to care for himself and guard against casualty."

Based on this record, it is not clear what statements or other evidence the District Court suppressed, and on what factual or legal basis. A trial court violates HRPP Rule 12(e) when it fails to state on the record the findings and conclusions made on a motion to suppress. State v. Rodgers, 70 Haw. 156, 156, 766 P.2d 675, 675-76 (1988). Here, the District Court erred in failing to state its essential findings on the record in compliance with HRPP Rule 12(e).

(3) The State contends that although the District Court "found" Zhang "not guilty," jeopardy did not attach because no witness...