State v. Nguyen ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-APR-2023
07:55 AM
Dkt. 60 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MAC NGUYEN, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-18-01758)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Mac Nguyen (Nguyen) appeals from
the (1) October 31, 2018 "Notice of Entry of Judgment and/or
Order and Plea/Judgment," and (2) January 3, 2019 "Notice of
Entry of Judgment and/or Order and Plea/Judgment," both filed and
entered by the District Court of the First Circuit (District
Court).1 After a consolidated bench trial and hearing, the
District Court convicted Nguyen of Operating A Vehicle Under The
Influence Of An Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1).
1
The Honorable Alvin K. Nishimura presided over the suppression
hearing and trial. The Honorable Sherri-Ann L. Iha entered the final
judgment.
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On appeal, Nguyen raises three points of error,2
contending that: (1) the District Court "erred in denying
Nguyen's motion to suppress his 'statements,'" which included
Nguyen's admission of drinking, "his responses to medical rule-
out [(MRO)] questions," and "his performance [on] the
[standardized field sobriety test (SFST)]"; (2) the dismissal of
the case is required "pursuant to State v. Thompson where the
complaint did not meet the requirements of HRS § 805-1"; and (3)
the "arraignment on the fatally defective Complaint was a nullity
and violated [Hawai#i Rules of Penal Procedure (HRPP)] Rules 5(b)
and 10(a)."
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 Nguyen's
points of error as follows, and affirm.
The pertinent background is as follows. On May 8,
2018, Nguyen was stopped by Honolulu Police Department (HPD)
Officer Jared Spiker (Officer Spiker) after the officer observed
Nguyen driving "at a high rate of speed" and fail to stop at two
stop signs. Upon approach of Nguyen's vehicle, Officer Spiker
noticed a "strong odor of an alcoholic type beverage coming from
[Nguyen's] breath and red, watery, glassy eyes." Nguyen's face
was flushed and he had "slurred speech." Officer Spiker informed
Nguyen that he planned to ask Nguyen to participate in a SFST, to
which Nguyen responded that "he just drank 30 minutes ago."
Officer Spiker asked Nguyen to exit his vehicle. HPD Officer
Richard Townsend (Officer Townsend) arrived to cover Officer
2
Nguyen filed a Supplemental Brief on May 12, 2022, raising the
second and third points of error. The State also filed a Supplemental Brief
on May 16, 2022.
Nguyen was allowed to file the Supplemental Brief to address the
Complaint in this case in light of State v. Thompson, 150 Hawai#i 262, 267-68,
500 P.3d 447, 452-53 (2021), in which the Hawai#i Supreme Court held that
failure to comply with HRS § 805-1 renders a complaint "fatally defective,"
and that such a complaint cannot be used to support the issuance of an arrest
warrant or penal summons.
2
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Spiker and administer the SFST. When asked by Officer Townsend,
Nguyen assented to submitting to the SFST.
Prior to the SFST, Officer Townsend asked Nguyen MRO
questions, including whether Nguyen was "on any kind of
medication"; "under the care of a doctor or dentist"; "under the
care of an eye doctor"; "epileptic or diabetic"; "wearing
contacts"; "blind in any of his eyes, or ha[d] an artificial or
glass eye"; and whether he "ha[d] any physical defects or speech
impediments[.]" Nguyen answered "no" to the medical rule-out
questions, and, based on Nguyen's responses, Officer Townsend
believed that there was nothing that would physically affect
Nguyen's ability to perform the SFST.
Officer Townsend administered the SFST and determined
that Nguyen was unable to safely operate his vehicle. Nguyen was
placed under arrest and charged with OVUII, in violation of HRS §
291E-61(a)(1) and/or (a)(3).
Nguyen filed a Motion to Suppress Statements (Motion to
Suppress), specifically requesting suppression of the following:
1. Any statements made by [Nguyen] to [HPD] Officers
or other governmental personnel.
2. Any and all evidence seized or information gained
by the [HPD] after [Nguyen] 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.
Nguyen 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 Officer Spiker.
A consolidated hearing on the Motion to Suppress and a
bench trial on the OVUII charge was held on October 31, 2018.
The State confirmed that it would proceed under HRS § 291E-
61(a)(1) and not subsection (a)(3). The District Court denied
Nguyen's motion as to his statement that he "just drank thirty
minutes ago" because,
[I]t does appear that that [sic] was a spontaneous
utterance. It was not in response to any particular
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question. It was something that was said by the
defendant as the officer was conducting his further
investigation, you know, in this matter.
As to the SFST, the court denied suppression because "[t]here's
nothing to indicate that -- that the field sobriety test was in
any way a result of any custodial interrogation under the facts
of this case."
At the conclusion of trial on October 31, 2018, the
District Court found Nguyen guilty of OVUII, citing Nguyen's
speeding, disregard of two stop signs, and performance on the
SFST, as evidence that Nguyen "was impaired."3 Nguyen timely
appealed.
(1) Nguyen argues that because he was never advised of
his Miranda4 rights when he was pulled over, his "statements,"
including his admission that he had been drinking, his responses
to the MRO questions, and his performance on the SFST, were the
product of a custodial interrogation and should all be
suppressed.
3
The District Court stated the following when finding Nguyen
guilty:
So there's no doubt that defendant had been consuming
alcohol. The facts -- the driving I think in and of itself
is sufficient to prove beyond a reasonable doubt that the
defendant was impaired, had been -- consumed alcohol in an
amount sufficient to impair his normal mental faculties or
ability to care for himself and guard against casualty as he
ran through one stop sign and, you know, without slowing
down and the other one he slowed but didn't stop.
I think the field sobriety test just confirms --
confirms what occurred in the driving that the defendant was
impaired. As indicated, defendant appeared to not be able
to follow the instructions. On the walk-and-turn the gaps
between his feet was 7 to 8 inches, that he walked with arms
out like a T throughout the entire test. And I think all of
that just confirms what is already indicated by the driving,
is that defendant was impaired.
So for those reasons, the Court does find that the
State has met its burden of proof beyond a reasonable doubt
as to every element of the offense and finds the defendant
guily of -- of the charge 291E-61.
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
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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)
(internal quotation marks and citations omitted) (quoting State
v. Lee, 149 Hawai#i 45, 49, 481 P.3d 52, 56 (2021)).
Denial of suppression of Nguyen's admission of drinking
was correct.
Nguyen argues that under State v. Tsujimura,
140 Hawai#i 299, 400 P.3d 500 (2017), Nguyen was "seized at the
moment that Officer Spiker detained him for the alleged traffic
violations" because Nguyen was not free to leave; Nguyen's "pre-
arrest" right to remain silent under the Hawai#i Constitution had
attached; and "any post-seizure verbal or non-verbal
communicative acts" including the "spontaneous utterance" and
SFST performance — — should be suppressed.
In State v. Uchima, 147 Hawai#i 64, 83, 464 P.3d 852,
871 (2020), the Hawai#i Supreme Court rejected this same
argument, where Uchima contended that "he had a pre-arrest right
to remain silent pursuant to Tsujimura, [and] that his verbal and
non-verbal responses should therefore have been suppressed." The
Uchima court explained that Tsujimura applies to cases involving
a defendant's pre-arrest right to remain silent after being
detained, where the State seeks to introduce and use evidence of
the defendant's silence against him. Id. Here, as in Uchima,
the State did not seek to use evidence of Nguyen's pre-arrest
silence against Nguyen; thus, Tsujimura is inapposite.
Nguyen does not present any argument challenging the
District Court's finding in its oral ruling that Nguyen's
statement that he "just drank thirty minutes ago" was a
"spontaneous utterance" that "was not in response to any
particular question." An unchallenged finding of fact is
binding. State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428,
435 (citation omitted). As Nguyen's spontaneous admission was
not made in response to any express questioning by the officer,
and there is no argument that the officer's words or actions
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otherwise constituted illegal interrogation, there was no Miranda
violation. See Uchima, 147 Hawai#i at 84, 464 P.3d at 872
("[I]nterrogation encompasses not only express questioning, but
also any words or actions . . . that the police should know are
reasonably likely to elicit an incriminating response from the
suspect.") (citations omitted). Thus, the District Court was
correct in denying the suppression of Nguyen's admission of
drinking. See Manion, 151 Hawai#i at 271-72, 511 P.3d at 770-71.
Denial of suppression of Nguyen's responses to the MRO
questions was wrong.
Nguyen argues that the MRO questions constituted
"interrogation" because they "were specifically designed to rule
out any possible causes for irregularities on the SFST other than
intoxication." The District Court made no specific findings as
to the MRO questions and ruled only that Nguyen was not subject
to custodial interrogation. In its Answering Brief, the State
did not provide any counter-argument specifically addressing
whether the MRO questions constituted interrogation or not. The
State did not dispute that Nguyen was in custody or subjected to
interrogation, and only raised arguments regarding the admission
of Nguyen's SFST performance, which we discuss infra.
"[T]he requirement of Miranda warnings is triggered by
two criteria: (1) the defendant must be under interrogation; and
(2) the defendant must be in custody." State v. Ah Loo, 94
Hawai#i 207, 210, 10 P.3d 728, 731 (2000) (citation, internal
quotation marks, and brackets omitted). The State does not
challenge Nguyen's contention on appeal that Nguyen was in
"custody." In State v. Skapinok, 151 Hawai#i 170, 185, 510 P.3d
599, 614 (2022), the Hawai#i Supreme Court held that "all of the
[MRO] questions are interrogation" because "[a]lthough the
'incriminating inference' may be indirect, the questions
nevertheless adduce evidence to establish that intoxication
caused any poor performance on the SFST."5 Thus, Miranda
5
In Skapinok, the officer asked the following MRO questions:
(continued...)
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warnings were required prior to the officer asking these
questions. See id. Here, no Miranda questions were given, and
Nguyen's responses to the MRO questions should have been
suppressed; and the District Court was wrong in this regard. See
Manion, 151 Hawai#i at 271-72, 511 P.3d at 770-71.
Denial of suppression of Nguyen's SFST-related
responses and SFST performance was correct.
Nguyen argues that his "verbal responses during the
SFST and his non-verbal communicative responses (i.e. Nguyen's
performance on the SFST) to Officer Spiker's and Officer
Townsend's 'interrogation,' must be suppressed," as they violated
Nguyen's right to remain silent and Miranda rights. Nguyen also
argues that the SFST should be suppressed as "fruit of the
poisonous tree," based on the "illegally obtained verbal
statements" consisting of Nguyen's responses to the MRO
questions, and Nguyen's statement that he understood the SFST
instructions.
The "verbal responses during the SFST" that Nguyen
argues must be suppressed are the responses to the MRO questions
discussed supra at section (2), and Nguyen's response that he
understood the SFST instructions. In Skapinok, 151 Hawai#i at
186, 510 P.3d at 615, the supreme court reaffirmed Uchima,
holding that neither asking if a defendant would participate in
5
(...continued)
i. Do you have any physical defects or speech impediments?
ii. Are you taking any medications?
iii. Are you under the care of a doctor or dentist for
anything?
iv. Are you under the care of an eye doctor?
iv. Do you have an artificial or glass eye?
v. Are you epileptic or diabetic?
vi. Are you blind in either eye?
151 Hawai#i at 173-74, 510 P.3d at 602-03. These questions are identical to
the MRO questions that Officer Townsend asked Nguyen in this case.
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the SFST nor asking if the defendant understood the instructions
constituted "interrogation":
Here, the officer administering the SFST asked the defendant
whether he would participate in an SFST, whether he
understood the instructions of the individual tests, and
whether he had any questions. These preliminary questions
were not reasonably likely to lead to incriminating
responses because neither an affirmative or negative
response to these questions is incriminating. Rather, the
questions allow the officer to determine whether the
defendant was willing to undergo the SFST and whether he
understood the officer's instructions prior to performing
the three tests comprising the SFST. Thus, these questions
were not of such nature that the officer should have known
that they were likely to elicit an incriminating response.
(quoting Uchima, 147 Hawai#i at 84, 464 P.3d at 872) (brackets
omitted). Thus, Nguyen's verbal response that he understood the
SFST instructions was not interrogation, and not subject to
suppression. The District Court did not err in this regard.
As to whether the SFST performance should be
suppressed, the State argues that the SFST performance was
admissible because it was not "communication" or "testimony"
subject to the right against self-incrimination. In Manion, the
supreme court explained that:
The defendant's performance on the SFST does not constitute
incriminating statements. In Wyatt, this court held that
when conducting an SFST the State does not seek
"communications" or "testimony," but rather, "an exhibition
of 'physical characteristics of coordination.'" Here, the
officer administering the SFST did not seek "communications"
or "testimony" from the defendant. Rather, in conducting the
SFST, the officer sought "an exhibition of 'physical
characteristics of coordination.'" "Consequently, the field
sobriety test was not rendered infirm by the
constitutionally guaranteed privilege against compulsory
self-incrimination."
151 Hawai#i at 274, 511 P.3d at 773 (emphases added) (brackets
and ellipses omitted) (quoting Uchima, 147 Hawai#i at 84-85, 464
P.3d at 872-73). Because Nguyen's performance on the SFST was
not "testimonial, like the answers to the [MRO] questions," it
was not adduced in violation of Miranda. Id. at 273-74, 511 P.3d
at 772-73. The District Court did not err in denying suppression
of the SFST performance in this regard.
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As to whether the SFST performance should be suppressed
under the "fruit of the poisonous tree" doctrine, the Hawai#i
Supreme Court held that performance on the SFST is not "fruit" of
the MRO questions because
[a]lthough they immediately preceded the SFST in time, the
medical rule-out questions did not give the officers
information that led them to search for evidence of
intoxication, nor did the medical rule-out questions pique
their suspicions such that their investigation was directed
towards discovering evidence of intoxication.
Manion, 151 Hawai#i at 273, 511 P.3d at 772 (internal quotation
marks, brackets, and citation omitted). Because the record in
Manion reflected that the officer asked Manion to participate in
the SFST, and Manion agreed to the SFST prior to any
interrogation through the MRO questions, the officers "did not
exploit the illegality by continuing to gather evidence that they
had already set out to gather." Id.
Here, Officer Spiker had already set out to administer
the SFST before Officer Townsend asked the MRO questions, and the
officer had already asked for, and received, Nguyen's consent for
the test. The officers did not "exploit the illegality by
continuing to gather evidence that they had already set out to
gather." Id. The SFST performance was not the fruit of the
illegal MRO questions and responses. See id. Thus, the District
Court did not err in denying suppression in this regard.
Based on the foregoing, we affirm in part and reverse
in part the District Court's ruling denying Nguyen's motion to
suppress. Nguyen's admission that he had been drinking and his
SFST performance were admissible and not subject to suppression.
However, Nguyen's responses to the MRO questions were not
admissible and should have been suppressed. Although the
District Court erred in denying suppression of the responses to
the MRO questions, we nevertheless conclude that this error was
harmless beyond a reasonable doubt, where the District Court did
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not rely on this evidence in finding Nguyen guilty of OVUII.6
See Tsujimura, 140 Hawai#i at 318-19, 400 P.3d at 519-20 ("When
an error amounts to a violation of the privilege against
compelled self-incrimination under article I, section 10 [of the
Hawai#i Constitution], the analysis proceeds to whether the error
was harmless beyond a reasonable doubt.") (citation omitted).
Nguyen does not argue that the District Court relied on his MRO
responses in finding guilt.7 We conclude the error was harmless
beyond a reasonable doubt.
(2) Nguyen argues that the Complaint was defective
under HRS § 805-18 because no witness with direct observations of
Nguyen's misconduct "subscribed to" or "submitted a declaration
in support of the [C]omplaint." Rather, the Complaint was signed
by the prosecutor.
Whether a complaint complied with applicable statute
and/or rule is a question of law we review de novo. State v.
Thompson, 150 Hawai#i 262, 266, 500 P.3d 447, 451 (2021).
In State v. Mortensen-Young, SCAP-XX-XXXXXXX, 2023 WL
2519396, at *15 (Mar. 15, 2023), the Hawai#i Supreme Court held
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, HRPP Rule
6
As noted supra in note 3, the District Court relied on Nguyen's
drinking and SFST Performance as evidence of impairment for an OVUII
conviction.
7
Nguyen argues that: "The District Court cited Nguyen's
performance on the SFST as confirming the impairment suggested by his traffic
violations and physical indicia, and the court's reliance on Nguyen's SFST
performance evidences that the error in admitting this evidence could not have
been harmless."
8
HRS § 805-1 (2014) provides:
§805-1. Complaint; form of warrant. When a complaint
is made to any prosecuting officer of the commission of any
offense, the prosecuting officer shall examine the
complainant, shall reduce the substance of the complaint to
writing, and shall cause the complaint to be subscribed by
the complainant under oath, which the prosecuting officer is
hereby authorized to administer, or the complaint shall be
made by declaration in accordance with the rules of
court. . . .
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79 provides the proper framework to analyze the sufficiency of
complaints. Id. at *14-15. In Mortensen-Young, the supreme
court held that each of the appellees was properly charged with
the offense of OVUII by a complaint signed by the prosecutor,
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 be "'subscribed under oath or made
by declaration in lieu of an affidavit by anyone.'" Id. at *14.
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 Nguyen allegedly
violated, as required by HRPP Rule 7(d). Thus, the Complaint was
sufficient to initiate the subject prosecution, and Nguyen's
contention is without merit. See Mortensen-Young, 2023 WL
2519396, at *14-15.
(3) In light of our resolution, we need not address
Nguyen's remaining point of error.
For the foregoing reasons, we affirm the October 31,
2018 "Notice of Entry of Judgment and/or Order and Plea/Judgment"
and January 3, 2019 "Notice of Entry of Judgment and/or Order and
9
HRPP Rule 7 states, in pertinent part:
Rule 7. INDICTMENT, INFORMATION, OR COMPLAINT.
. . . .
(d) Nature and contents. The charge shall be a plain,
concise and definite statement of the essential facts
constituting the offense charged. . . . A complaint shall
be signed by the prosecutor. The charge need not contain a
formal conclusion or any other matter not necessary to such
statement. . . . The charge shall state for each count the
official or customary citation of the statute, rule,
regulation or other provision of law which the defendant is
alleged therein to have violated. . . .
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Plea/Judgment," both filed and entered by the District Court of
the First Circuit.
DATED: Honolulu, Hawai#i, April 28, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Alen M. Kaneshiro Chief Judge
for Defendant-Appellant
/s/ Keith K. Hiraoka
Stephen K. Tsushima Associate Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellee /s/ Karen T. Nakasone
Associate Judge
12