State v. Armitage ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-OCT-2021
09:30 AM
Dkt. 89 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MYISHA LEE ARMITAGE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Myisha Lee Armitage (Armitage)
appeals from the Judgment of Conviction and Sentence, entered on
November 1, 2019, in the Circuit Court of the First Circuit
(Circuit Court).1/ Following a jury trial, Armitage was convicted
of Accidents Involving Death or Serious Bodily Injury, in
violation of Hawaii Revised Statutes (HRS) § 291C-12 (Supp.
2015)2/ (Count 1), and Negligent Homicide in the First Degree, in
violation of HRS §§ 707-702.5(1)(a) and/or 707-702.5(1)(b)
1/
The Honorable Paul B.K. Wong presided.
2/
At the time of the alleged offense, HRS § 291C-12 provided, in
relevant part:
Accidents involving death or serious bodily injury.
(a) The driver of any vehicle involved in an accident
resulting in serious bodily injury to or death of any person
shall immediately stop the vehicle at the scene of the
accident or as close thereto as possible but shall then
forthwith return to and in every event shall remain at the
scene of the accident until the driver has fulfilled the
requirements of section 291C-14. Every such stop shall be
made without obstructing traffic more than is necessary.
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(2014)3/ (Count 2).
On appeal, Armitage contends that: (1) the indictment
as to Count 1 was insufficient because it failed to specify that
Armitage did not stop as close as possible to the accident scene
and "forthwith return" to the scene "without obstructing traffic
more than is necessary," HRS § 291C-12; (2) the jury instructions
for Count 1 were prejudicially insufficient, erroneous, and
misleading because they did not contain all of the elements of
the charged offense; (3) there was insufficient evidence to
sustain the conviction as to Count 1; (4) the indictment as to
Count 2 was insufficient because it did not include the
definition of "under the influence" and thus failed to state an
offense; and (5) the Circuit Court erred in not suppressing the
result of Armitage's blood alcohol test where the police failed
to obtain a warrant to draw Armitage's blood.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Armitage's contentions as follows:
(1) Armitage argues that the Hawai#i Supreme Court's
decision in State v. Baker, 146 Hawai#i 299, 463 P.3d 956 (2020),
is dispositive of her contention that the indictment was
insufficient as to Count 1.
In Baker, the supreme court considered the sufficiency
of a charge brought against a driver for failure to stop at the
scene of an accident involving vehicle damage, in violation of
HRS § 291C-13. At that time, HRS § 291C-13 (Supp. 2008) stated,
in relevant part:
3/
HRS § 707-702.5 states, in relevant part:
Negligent homicide in the first degree. (1) A person
commits the offense of negligent homicide in the first
degree if that person causes the death of:
(a) Another person by the operation of a vehicle in
a negligent manner while under the influence of
drugs or alcohol; or
(b) A vulnerable user by the operation of a vehicle
in a negligent manner.
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Accidents involving damage to vehicle or property.
The driver of any vehicle involved in an accident resulting
only in damage to a vehicle or other property that is driven
or attended by any person shall immediately stop such
vehicle at the scene of the accident or as close thereto as
possible, but shall forthwith return to, and in every event
shall remain at, the scene of the accident until the driver
has fulfilled the requirements of section 291C-14. Every
such stop shall be made without obstructing traffic more
than is necessary. . . .
See Baker, 146 Hawai#i at 302 n.1, 463 P.3d 959 n.1.
The supreme court construed this language to mean that
"[a] driver . . . . does not violate the statute by not stopping
at the scene, by not stopping as close as 'possible' to the
scene, or not returning to the scene of the accident, if doing so
would prevent a traffic hazard that would otherwise result." Id.
at 307, 463 P.3d at 964. Therefore, the court concluded:
The requirement that the stop was made without obstructing
traffic more than is necessary is thus a requisite aspect of
proof of the offense when the driver stops at, or forthwith
returns to, a location that the State contends is not as
close as "possible" to the accident scene.
Accordingly, when a defendant stops in close proximity
of the accident scene and provides the requisite
information, the State, in order to show a violation of the
statute, is required to prove the following: (1) the
defendant failed to stop at a location that was as close to
the scene of the accident as possible, or to forthwith
return thereto, and (2) the failure did not result from the
defendant avoiding an unnecessary obstruction of traffic.
Id.
In Baker, the defendant challenged the sufficiency of
the failure-to-stop charge for the first time on appeal. Id. at
308, 463 P.3d at 965. The supreme court thus applied the liberal
construction standard in reviewing the charge. Id. (citing State
v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983); State v.
Wells, 78 Hawai#i 373, 381, 894 P.2d 70, 78 (1995)). The court
nevertheless ruled:
The State in this case did not specify in the complaint that
[the defendant] did not stop either at the accident scene or
stop at the location closest to the accident scene and
forthwith return thereto without obstructing traffic more
than is necessary. The State's omission of this statutory
qualification did not provide [the defendant] with fair
notice of the elements of the offense charged. In fact, the
charge did not include any reference to the language
"without obstructing traffic more than is necessary" or
include language similar to it. The failure to include the
statutory language resulted in this element of the charge
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having a common meaning that differed from the express
statutory requirements, and thus neither the complaint nor
the oral charge can be reasonably construed to charge an
offense. Accordingly, the deficient charge deprived Baker
of the right to due process. As a result, the State failed
to state an offense, and the conviction based upon it cannot
be sustained.
Baker, 146 Hawai#i at 308, 463 P.3d at 965 (citations omitted).
Here, Armitage was charged in Count 1 with failing to
stop at the scene of an accident involving death or serious
bodily injury, in violation of HRS § 291C-12. The operative
provisions of HRS § 291C-13 substantially mirror those of HRS
§ 291C-12. In particular, both statutes require a driver who is
involved in an accident that causes a specified harm to
immediately stop at the scene of the accident or stop "as close
thereto as possible" and "forthwith return" to the scene. HRS
§ 291C-12; HRS § 291C-13; see Baker, 146 Hawai#i at 306, 463 P.3d
at 963. Both statutes also require that "[e]very such stop shall
be made without obstructing traffic more than is necessary." HRS
§ 291C-12; HRS § 291C-13. However, the charge against Armitage,
like its counterpart in Baker, failed to specify that Armitage
did not stop at the accident scene or stop at the location
closest to the accident scene and forthwith return thereto
without obstructing traffic more than is necessary. Under Baker,
the failure to include the statutory language "without
obstructing traffic more than is necessary," or similar language,
rendered Count 1 deficient and deprived Armitage of the right to
due process. See Baker, 146 Hawai#i at 308, 463 P.3d at 965.
The State contends that because Baker was decided after
Armitage's trial, the Baker ruling "should be given purely
prospective effect" and should not be applied in this case.
However, the supreme court in Baker did not indicate that its
ruling on the sufficiency of the charge should be given strictly
prospective effect; rather, the court applied its ruling to the
case before it, concluding that the State failed to state an
offense and vacating the defendant's conviction under HRS § 291C-
13.4/ See id. at 308, 310, 463 P.3d at 965, 967. The disposition
4/
The court further concluded that the evidence was insufficient to
convict Baker under HRS § 291C-13, and thus remanded the case to the district
court with instructions to enter a judgment of acquittal. See Baker, 146
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of Baker thus indicates that the court's ruling on the
sufficiency of the charge was not intended to apply "purely
prospectively." Cf. State v. Jones, 148 Hawai#i 152, 174-76, 468
P.3d 166, 188-90 (2020) (applying a holding prospectively and not
to the case at bar); State v. Torres, 144 Hawai#i 282, 292-95,
439 P.3d 234, 244-47 (2019) (same); State v. Jess, 117 Hawai#i
381, 404, 184 P.3d 133, 156 (same). At least as to the present
case, which is on direct appellate review, we conclude that the
Baker ruling – i.e., that the failure-to-stop charge was
deficient for omitting the statutory language "without
obstructing traffic more than is necessary," or similar language
– applies. For the reasons discussed above, the Judgment as to
Count 1 must be vacated.
(2) Given that we vacate as to Count 1 based on
Armitage's first point of error, we do not reach her second point
of error.
(3) In her third point of error, Armitage contends
there was insufficient evidence to support her conviction as to
Count 1.
Sufficient evidence to support a conviction "requires
substantial evidence as to every material element of the offense
charged." State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23
P.3d 744, 757 (App. 2001)). Substantial evidence is "credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. (quoting Ferrer, 95 Hawai#i at 422, 23 P.3d at 757). The
evidence must be "viewed in the light most favorable to the
prosecution and in full recognition of the province of the trier
of fact," who must "determine credibility, weigh the evidence,
and draw justifiable inferences of fact." Id. (quoting Ferrer,
95 Hawai#i at 422, 23 P.3d at 757).
In order to convict Armitage for a violation of HRS
§ 291C-12, the State was required to prove beyond a reasonable
doubt that: (1) Armitage was driving a vehicle that was involved
Hawai#i at 310, 463 P.3d at 967.
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in an accident resulting in serious bodily injury to or death of
another person; and (2) Armitage did not (a) immediately stop at
the scene or stop as close thereto as possible and forthwith
return to the scene without obstructing traffic more than is
necessary; or (b) give the information required by HRS § 291C-145/
to any person injured in the accident and any police officer at
the scene, and render to any person injured in the accident
reasonable assistance. See HRS § 291C-12; HRS § 291C-14; see
also Baker, 146 Hawai#i at 309, 463 P.3d at 966 (stating the
elements to prove a violation of HRS § 291C-13). In the event
that any person injured was not in condition to receive the
required information, and no police officer was present, the
State was required to prove that Armitage did not forthwith
report the accident to the nearest police officer and provide the
required information after fulfilling other statutory
requirements insofar as possible. See HRS § 291C-14(b); see also
Baker, 146 Hawai#i at 309, 463 P.3d at 966. The State was also
required to prove that Armitage committed each element of the
5/
At the time of the alleged offense, HRS § 291C-14 (Supp. 2015)
provided, in relevant part:
(a) The driver of any vehicle involved in an accident
resulting in injury to or death of any person or damage to
any vehicle or other property which is driven or attended by
any person shall give the driver's name, address, and the
registration number of the vehicle the driver is driving,
and shall upon request and if available exhibit the driver's
license or permit to drive to any person injured in the
accident or to the driver or occupant of or person attending
any vehicle or other property damaged in the accident and
shall give such information and upon request exhibit such
license or permit to any police officer at the scene of the
accident or who is investigating the accident and shall
render to any person injured in the accident reasonable
assistance, including the carrying, or the making of
arrangements for the carrying, of the person to a physician,
surgeon, or hospital for medical or surgical treatment if it
is apparent that such treatment is necessary, or if such
carrying is requested by the injured person . . . .
(b) In the event that none of the persons specified is
in condition to receive the information to which they
otherwise would be entitled under subsection (a), and no
police officer is present, the driver of any vehicle
involved in the accident after fulfilling all other
requirements of section 291C-12, 291C-12.5, or 291C-12.6,
and subsection (a) of this subsection, insofar as possible
on the driver's part to be performed, shall forthwith report
the accident to the nearest police officer and submit
thereto the information specified in subsection (a).
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offense intentionally, knowingly, or recklessly. See HRS
§§ 291C-12, 701-114, 702-204.
Armitage argues there was insufficient evidence to
convict her on Count 1 because she satisfied the requirements of
HRS § 291C-14 by providing her driver's license and other
information requested by the police officers who responded to
Armitage's location following the accident. In making this
argument, however, Armitage ignores the substantial evidence
indicating that she did not give the information required by HRS
§ 291C-14 to any police officer at the scene of the accident,
but, rather, continued to drive for nearly a mile after hitting
Kaulana Werner (Kaulana) and only stopped when her vehicle
stalled. Armitage also ignores the related substantial evidence
that she did not immediately stop at the accident scene or stop
as close thereto as possible and forthwith return to the scene
without obstructing traffic more than is necessary.
At trial, Honolulu Police Department (HPD) Sergeant
Philip White (Sgt. White) testified to the following: At 8:35
p.m. the evening of the incident, Sgt. White responded to a
dispatch call for a pedestrian motor vehicle collision in the
area of Pohakunui Avenue and Farrington Highway. As Sgt. White
passed the Kahe Power Plant, he noticed individuals jumping up
and down and waving their arms, directing his attention to a BMW
sedan that he later determined was driven by Armitage, and an SUV
that he later determined was driven by Joshua Wakinekona
(Wakinekona), on the makai shoulder of the eastbound side of
Farrington Highway. Sgt. White first observed Armitage standing
outside of her vehicle, and she indicated that she was the
driver.
Sgt. White's testimony continued as follows:
Q. [DPA:] What . . ., if anything, happened next?
A. [Sgt. White:] I asked her what happened.
Q. And what did she say?
A. She said, really excited, "I don't know. I don’t
know. I hit something. I don't know."
Q. What did you do at that point?
A. I asked her for her name.
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Q. Okay. And she replied, she responded to you?
A. She provided me with her first and last name.
Sgt. White next asked Armitage for her driver's license
and vehicle documents, which Armitage provided. After this
exchange, Sgt. White examined Armitage's vehicle, observed
extensive damage to it, and determined that it was involved in
the pedestrian motor vehicle collision. The location of
Armitage's vehicle was approximately eight tenths of a mile east
(i.e., toward town) from the scene of the collision. According
to Sgt. White, who travels on Farrington Highway every day as he
goes to work, "there are numerous places to turn off" between the
scene of the collision and where Armitage's vehicle was located.
Edward Werner (Edward), Kaulana's father, similarly
testified that there were multiple places to turn off between the
scene of the accident and where Armitage's car stopped.
Specifically, Edward testified that there was no guard rail near
the scene of the accident and there were "a lot of places" "to
pull your car over." According to Edward, "You can just turn
right on the side and pull onto that . . . grassy area." Edward
also testified that a car could turn onto Piliokahi Street, a
cross street "right there as well." Edward further testified
that a car, traveling townbound along Farrington Highway, could
turn into Black Rock Beach, which is located "about twenty houses
down" from the scene of the accident. Edward testified that he
was familiar with the area in question because he has "driven
that roadway . . . [a]ll my life."
Waikinekoa testified in part as follows: On the
evening of the incident, Waikinekoa and Armitage met in the
parking lot across from the O'Reilly store and agreed to drive
out to Tracks Beach Park. Wakinekona drove his Suburban SUV, and
Armitage followed behind him in her own car. Wakinekona turned
left onto Farrington Highway going toward town, driving "pretty
quick," with Armitage behind him. At some point after going over
the hill near Tracks Beach, Wakinekona did not see Armitage's
headlights behind him any longer, so he "pulled off the road
before the guard rail and [he] just sat there looking in [his]
mirror," then saw "the projection of [Armitage's] lights . . .
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coming up towards the top of the hill." Wakinekoa saw the lights
flicker on and off, and "figured she stalled or blow holes and
the car shut off, so [he] turned on [his] amber lights and . . .
reversed back towards her." Armitage's car had stalled.
Wakinekoa went to Armitage's car and asked, "what happened" and
saw that her airbag had been deployed. Armitage responded, "I
don't know." Wakinekoa shined a light on Armitage's vehicle and
saw extensive damage, before Armitage said, "we need to get out
of here." Wakinekoa described the following exchange with
Armitage:
Q. [by DPA] Who told you "we need to get out of
here"?
A. [Armitage.]
Q. She said -- she said that to you?
A. Yes.
Q. Okay. What did you do then?
A. I said -- I said no. I said, "I going -- I'll pull
your car off the road." And I was going to go back and go
see if something fell off the car or what happened. And she
said, "No, you gotta get me outta here." And I asked, I
said, "What happened?" She goes, "I don't know. Something
jumped in the front of my car."
Upon review of the record, we conclude there was
substantial evidence that Armitage drove a vehicle that was
involved in an accident resulting in the death of another person,
and Armitage did not immediately stop at the scene or stop as
close thereto as possible and forthwith return to the scene
without obstructing traffic more than was necessary. We further
conclude there was substantial evidence that Armitage did not
give the information required by HRS § 291C-14 to any police
officer at the accident scene. Accordingly, on this record, the
evidence was sufficient to support Armitage's conviction on Count
1.
(4) A person commits the offense of negligent homicide
in the first degree if, inter alia, the person causes the death
of another person by operating a vehicle in a negligent manner
"while under the influence of drugs or alcohol[.]" HRS
§ 707-702.5(1)(a).
Armitage contends that the indictment as to Count 2 was
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insufficient because it did not include the definition of "under
the influence" and thus failed to state an offense.6/ The State
agrees that the common understanding of the phrase "under the
influence" "does not necessarily comport with the statutory
definition" stated in HRS § 291E-1,7/ but argues that Armitage's
challenge to the indictment must fail because she had actual
notice of the definition prior to objecting to the sufficiency of
the charge at issue.
In State v. Mita, 124 Hawai#i 385, 245 P.3d 458 (2010),
the supreme court stated:
6/
Count 2 of the indictment stated:
COUNT 2: On or about April 24, 2016, in the City and
County of Honolulu, State of Hawai#i, MYISHA LEE ARMITAGE
did cause the death of Kaulana Werner by the operation of a
vehicle in a negligent manner while under the influence of
drugs or alcohol, and/or MYISHA LEE ARMITAGE did cause the
death of Kaulana Werner, who was a vulnerable user, to wit,
a person legally within a street or public highway, by the
operation of a vehicle in a negligent manner, thereby
committing the offense of Negligent Homicide in the First
Degree, in violation of Section 707-702.5(1)(a) and/or
Section 707-702.5(1)(b) of the Hawai#i Revised Statutes. In
accordance with Section 264-1(a) of the Hawai #i Revised
Statutes, "public highway" means all roads, alleys, streets,
ways, lanes, bikeways, bridges, and all other real property
highway related interests in the State, opened, laid out,
subdivided, consolidated, and acquired and built by the
government. In accordance with Section 291C-1 of the
Hawai#i Revised Statutes, "street" means the entire width
between boundary lines of every way publicly maintained when
any part thereof is open to the use of the public for
purpose of vehicular travel.
7/
HRS § 291E-1 (Supp. 2015) states:
"Under the influence" means that a person:
(1) Is under the influence of alcohol in an amount
sufficient to impair the person's normal mental
faculties or ability to care for the person and guard
against casualty;
(2) Is under the influence of any drug that impairs the
person's ability to operate the vehicle in a careful
and prudent manner;
(3) Has .08 or more grams of alcohol per two hundred ten
liters of the person's breath; or
(4) Has .08 or more grams of alcohol per one hundred
milliliters or cubic centimeters of the person's
blood.
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Article I, section 14 of the Hawai#i Constitution
provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be informed of the nature and
cause of the accusation[.]" . . . "[T]he sufficiency of the
charging instrument is measured, inter alia, by 'whether it
contains the elements of the offense intended to be charged,
and sufficiently apprises the defendant of what he [or she]
must be prepared to meet[.]'" . . . The relevant inquiry,
therefore, is whether or not the charge provided the accused
with fair notice of the essential elements.
Id. at 390, 245 P.3d at 463 (brackets in original) (quoting and
citing State v. Wheeler, 121 Hawai#i 383, 391, 395, 219 P.3d
1170, 1178, 1182 (2009)).
We agree that the common understanding of the phrase
"under the influence" does not necessarily comport with the
statutory definition. However, in determining the sufficiency of
a charge, "the appellate court can consider other information in
addition to the charge that may have been provided to the
defendant during the course of the case up until the time
defendant objected to the sufficiency of the charges against him
[or her]." Wheeler, 121 Hawai#i at 396, 219 P.3d at 1183; see
State v. Treat, 67 Haw. 119, 120, 680 P.2d 250, 251 (1984) ("We
think that in determining whether the accused's right to be
informed of the nature and cause of the accusation against him
has been violated, we must look to all of the information
supplied to him by the State to the point where the court passes
upon the contention that his right has been violated." (quoting
State v. Robins, 66 Haw. 312, 317, 660 P.2d 39, 42–43 (1983)));
see also State v. Salvas, No. CAAP-XX-XXXXXXX, 2021 WL 1232051,
at *11-12 (Haw. App. Mar. 31, 2021) (Mem.) (where the defendant
first challenged the sufficiency of the charges toward the end of
trial, after the State rested its case, this court considered
information provided to the defendant before and during trial,
prior to the challenge).
Here, Armitage first raised a challenge to Count 2 of
the indictment during trial, at the close of evidence, in a
motion for judgment of acquittal. However, on July 24, 2019,
nearly a month before trial began, the State filed its proposed
jury instructions, which included the statutory definition of
"under the influence," as set forth in HRS § 291E-1. These
proposed instructions gave Armitage ample notice of precisely
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"what . . . she must be prepared to meet" at trial regarding the
definition at issue.8/ Mita, 124 Hawai#i at 390, 245 P.3d at 463(quoting Wheeler, 121 Hawai#i at 391, 219 P.3d at 1178) (brackets
omitted); cf. State v. Israel, 78 Haw. 66, 72, 890 P.2d 303, 309
(1995) (ruling that the record was insufficient to show that the
defendant had actual knowledge of the charge where, inter alia,
"there have been no opening statements or jury instructions that
could constitute objective indicia of [the defendant's] knowledge
of the underlying felony that the State was alleging that he
committed"). During trial, but prior to Armitage's motion for
judgment of acquittal, the Circuit Court and the parties
discussed the definition of "under the influence" that would be
provided to the jury, and the Circuit Court informed the parties
of the precise definition that would be given to the jury.
On this record, we conclude that Armitage was fully
informed of the nature and cause of the accusation against her
for negligent homicide in the first degree, including the
statutory definition of "under the influence," before she brought
her motion for judgment of acquittal. We further conclude that
the information provided by the State to Armitage prior to trial
sufficiently apprised her of the charge she must be prepared to
meet. Examined in this context, the charge was sufficient.
(5) Armitage contends that the Circuit Court should
have suppressed the result of her blood alcohol concentration
test because it was the result of a warrantless blood draw on the
night of the incident, in violation of her constitutional rights.
She argues that the Circuit Court erred in ruling that the blood
draw was constitutionally permissible based on exigent
circumstances.
In State v. Hewitt, 149 Hawai#i 71, 72, 481 P.3d 713,
714 (App. 2021), cert. granted, No. SCWC-XX-XXXXXXX, 2021 WL
2775190 (Haw. July 2, 2021), this court held that the district
court erred in denying the defendant's motion to suppress her
8/
Armitage's motion to suppress statements and evidence, filed on
January 5, 2018, a year and a half before trial, also indicates that she was
aware that her alleged blood alcohol content was part of the State's case.
Her motion stated in part: "In the instant case, the State will likely argue
that the police had probable cause to believe that the person has committed a
DUI or other offense where a blood sample would evidence the offense . . . ."
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blood test result because the State did not develop the record to
justify her warrantless blood draw. There, the defendant was in
a hospital emergency room being questioned by a police officer as
a potential assault victim when the officer received information
about a damaged abandoned truck that contained the defendant's
state identification card. Id. at 73, 481 P.3d at 715.
Suspecting that the defendant was under the influence of an
intoxicant, the officer returned to the emergency room and asked
the defendant whether she was the driver of the truck. Id.
Following the defendant's response, the officer placed her under
arrest for operating a vehicle under the influence of an
intoxicant (OVUII) and told her a blood draw would be conducted.
Id. The blood draw was performed pursuant to HRS § 291E-21(a)
(2007), which authorizes a law enforcement officer to obtain a
sample of blood "from the operator of any vehicle involved in a
collision resulting in injury to . . . any person, as evidence
that the operator was under the influence of an intoxicant." Id.
at 76, 481 P.3d at 718.
On appeal, the defendant argued that the district court
should have suppressed evidence of her blood alcohol content
because it was the result of a warrantless search and seizure in
violation of her constitutional rights. Id. In analyzing the
defendant's argument, this court stated:
A warrantless [blood alcohol concentration] test
. . . pursuant to HRS § 291E–21 . . . does not offend
the Hawai#i Constitution "so long as (1) the police
have probable cause to believe that the person has
committed a DUI offense and that the blood sample will
evidence that offense, (2) exigent circumstances are
present, and (3) the sample is obtained in a
reasonable manner."
State v. Won, 137 Hawai#i 330, 344 n.26, 372 P.3d 1065, 1079
n.26 (2015) (emphasis added) (quoting State v. Entrekin, 98
Hawai#i 221, 232, 47 P.3d 336, 347 (2002)).
In Entrekin, the Hawai#i Supreme Court . . . held:
The exigent circumstances exception is present when
the demands of the occasion reasonably call for an
immediate police response. More specifically, it
includes situations presenting an immediate threatened
removal or destruction of evidence. However, the
burden, of course, is upon the government to prove the
justification, and whether the requisite conditions
exists [sic] is to be measured from the totality of
the circumstances. And in seeking to meet this
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burden, the police must be able to point to specific
and articulable facts from which it may be determined
that the action they took was necessitated by the
exigencies of the situation.
. . . .
. . . [E]xigent circumstances were clearly
present. It is undisputed that the percentage of
alcohol in the blood begins to diminish shortly after
drinking stops, as the body functions to eliminate it
from the system. [T]he arrested person's
blood-alcohol level by its very nature dissipates and
is forever lost as time passes, and any alcohol
ingested by the arrested person is digested and its
effects on the body pass[.]
Id. at 232-33, 47 P.3d at 347-48 (cleaned up) (emphasis
added).
Id. at 76-77, 481 P.3d at 718-19.
However, in Hewitt, this court also recognized:
[I]n Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185
L. Ed. 2d 696 (2013) (decided after Entrekin), the United
States Supreme Court held "that in drunk-driving
investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case
sufficient to justify conducting a blood test without a
warrant." Id. at 165, 133 S. Ct. 1552. The Supreme Court
reasoned:
It is true that as a result of the human body's
natural metabolic processes, the alcohol level in a
person's blood begins to dissipate once the alcohol is
fully absorbed and continues to decline until the
alcohol is eliminated. . . . Regardless of the exact
elimination rate, it is sufficient for our purposes to
note that because an individual's alcohol level
gradually declines soon after [the person] stops
drinking, a significant delay in testing will
negatively affect the probative value of the
results. . . .
But it does not follow that we should depart from
careful case-by-case assessment of exigency and adopt
the categorical rule proposed by the State and its
amici. In those drunk-driving investigations where
police officers can reasonably obtain a warrant before
a blood sample can be drawn without significantly
undermining the efficacy of the search, the Fourth
Amendment mandates that they do so. We do not doubt
that some circumstances will make obtaining a warrant
impractical such that the dissipation of alcohol from
the bloodstream will support an exigency justifying a
properly conducted warrantless blood test. That,
however, is a reason to decide each case on its facts,
as we did in Schmerber[ v. California, 384 U.S. 757(1966)], not to accept the "considerable
overgeneralization" that a per se rule would reflect.
The context of blood testing is different in critical
respects from other destruction-of-evidence cases in
which the police are truly confronted with a "'now or
never'" situation. In contrast to, for example,
circumstances in which the suspect has control over
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easily disposable evidence, [blood alcohol
concentration] evidence from a drunk-driving suspect
naturally dissipates over time in a gradual and
relatively predictable manner. . . .
The State's proposed per se rule also fails to account
for advances in the 47 years since Schmerber was
decided that allow for the more expeditious processing
of warrant applications, particularly in contexts like
drunk-driving investigations where the evidence
offered to establish probable cause is simple. The
Federal Rules of Criminal Procedure were amended in
1977 to permit federal magistrate judges to issue a
warrant based on sworn testimony communicated by
telephone. . . . States have also innovated. Well
over a majority of States allow police officers or
prosecutors to apply for search warrants remotely
through various means, including telephonic or radio
communication, electronic communication such as
e-mail, and video conferencing.
Id. at 152-54, 133 S. Ct. 1552 (cleaned up) (citing, among
other states' court rules, [HRPP] Rule 41(h)–(i) (2013)).
Id. at 77-78, 481 P.3d at 719-20 (footnote omitted); see also
State v. Niceloti-Velazquez, 139 Hawai#i 203, 205, 386 P.3d 487,
489 (App. 2016) (citing McNeely and ruling that "the record does
not support a finding that, given the totality of the
circumstances, the police officers could not have reasonably
obtained a search warrant before drawing Velazquez's blood
sample").
With this legal framework in mind, we ruled in Hewitt
that the State failed to adequately develop the record to
demonstrate the existence of exigent circumstances that would
have justified the arresting officer's requesting a warrantless
blood draw from the defendant. Id. at 79, 481 P.3d at 721. We
reasoned that under the totality of the circumstances, it would
not have been unreasonable for a judge to require more
information before issuing a warrant for a blood draw. Id. We
also noted there was no evidence that any police officer
attempted to contact a judge to obtain a warrant before
requesting the blood draw. Id.
Similarly, here, the State failed to adequately develop
the record to demonstrate the existence of exigent circumstances
to justify the arresting officer's requesting a warrantless blood
draw from Armitage. Following a suppression hearing, the Circuit
Court found, and it is undisputed, that: (1) Sgt. White was
dispatched to the accident scene on April 24, 2016, at 8:40 p.m.;
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(2) Sgt. White, who was the first officer to interact with
Armitage, determined that she was the operator of the vehicle
involved in the accident and a suspect in the case; and (3) Sgt
White observed that Armitage showed indicia of intoxication.
There was no evidence that any police officer involved in the
investigation sought a search warrant to draw Armitage's blood.
The Circuit Court made the following findings of fact
(FOFs) and conclusions of law (COLs) in ruling that exigent
circumstances justified the warrantless blood draw from Armitage:
[FOF 44]. A [HPD] investigator would take 2-3 hours
to prepare a search warrant. The draft search warrant is
normally reviewed by a Deputy Prosecuting Attorney ("Deputy
Prosecutor") from the City and County of Honolulu Department
of the Prosecuting Attorney, and could take an additional
1-1.5 hours. If the draft search warrant is approved by the
Deputy Prosecutor, the HPD Investigator then contacts the
on-call District Court Judge on Oahu for a review and
approval of the search warrant, a process that takes
additional time. HPD does not have any other procedure to
obtain a search warrant.
[FOF 45]. [HRPP] Rule 41 allows telephonic warrants. 9/
. . . .
9/
HRPP Rule 41 provides, in relevant part:
Rule 41. SEARCH AND SEIZURE.
. . . .
(c) Issuance and contents. A warrant shall issue only
on an affidavit or affidavits sworn to before the judge and
establishing the grounds for issuing the warrant. . . .
. . . .
(h) Warrant issuance on oral statements. In lieu of
the written affidavit required under section (c) of this
rule, a sworn oral statement, in person or by telephone, may
be received by the judge, which statement shall be recorded
and transcribed, and such sworn oral statement shall be
deemed to be an affidavit for the purposes of this rule.
Alternatively to receipt by the judge of the sworn oral
statement, such statement may be recorded by a court
reporter who shall transcribe the same and certify the
transcription. In either case, the recording and the
transcribed statement shall be filed with the clerk.
(i) Duplicate warrants on oral authorization. The
judge may orally authorize a police officer to sign the
signature of the judge on a duplicate original warrant,
which shall be deemed to be a valid search warrant for the
purposes of this rule. The judge shall enter on the face of
the original warrant the exact time of issuance and shall
sign and file the original warrant and, upon its return, the
duplicate original warrant with the clerk.
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[COL 26]. It is undisputed that "the percentage of
alcohol in the blood begins to diminish shortly after
drinking stops, as the body functions to eliminate it from
the system." Entrekin, 98 Hawai#i at 233 (citing Schmerber
v. California, 384 U.S. 757, 770 (1966)).
[COL 27]. In this case, the inability to obtain a
search warrant within 2 hours, coupled with dissipation of
blood alcohol, and the time it took to investigate the case
and determine that Defendant was a suspect, collectively
created an exigency of unrecoverable evidence. . . .
(Footnote added.)
Armitage does not challenge any of the Circuit Court's
FOFs by number. However, she disputes the Circuit Court's
conclusion that "HPD's desire to [follow] their own procedures,
ignoring HRPP Rule 41's allowance of telephonic warrants,"
combined with other factors to create an exigency. We construe
this contention as challenging FOF 44 in substance. Armitage
also challenges COL 27, which actually presents mixed findings of
fact and a conclusion of law.
In FOF 44, the Circuit Court found that HPD's normal
procedure to apply for a search warrant takes three to four and a
half hours, plus additional time for review and approval by a
judge. In COL 27, the court further concluded that "[i]n this
case, [there was an] inability to obtain a search warrant within
two hours[,]" which is a finding of fact. The record lacks
substantial evidence to support either of these findings, which
appear to be based on the testimony of HPD Corporal Richard
Simifranca (Cpl. Simifranca), who assisted in the investigation
of the collision and who secured a search warrant for Armitage's
vehicle. During the suppression hearing, Cpl. Simifranca was
asked how long it takes him to prepare a search warrant. He
responded: "Oh, I would say it takes me, because I'm not –- I've
only done it like I think twice before, it takes me probably
about –- anywhere from two to three hours." Cpl. Simifranca
further testified that the time it takes him to meet with the
assigned deputy prosecutor is "about another hour and a half[.]"
He based his testimony on the example of seeking a search warrant
for an automobile, which he conceded would be stored in a secure
HPD warehouse. Cpl. Simifranca testified that he had never
sought a search warrant that had "a time of the essence factor"
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and he "really d[id]n't know how to do that kind of a search
warrant [involving any kind of spoilage or time sensitivity],
because [he] just never had experience doing one[.]" We conclude
this testimony is not "of sufficient quality and probative value"
to support the above-identified findings in FOF 44 and COL 27.
Estate of Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152
P.3d 504, 523 (2007). Hence, COL 27 is clearly erroneous. See
id.Further, the court acknowledged in FOF 45 that HRPP
Rule 41 allows for telephonic warrants, but also found in FOF 44
that HPD does not have any procedure in place, other than its
normal procedure, to obtain a warrant, i.e., it does not (or did
not at the time of the suppression hearing) have a procedure in
place to obtain telephonic warrants under HRPP Rule 41. The
court explicitly made this distinction during the suppression
hearing, as follows:
THE COURT: Rule 41 of the Hawai#i Rules of Penal
Procedure has never been exercised and put into practice in
the First District.
[DEFENSE COUNSEL]: And I think we know why, at this
point. I don't think HPD knows how to use it, or know that
it exists, according to the testimony we have.
THE COURT: But there are no telephonic warrants in the
First District. And there is no procedure for telephonic
warrants.
[DEFENSE COUNSEL]: Well, I think there is. It's laid
out in Rule 41(h).
THE COURT: The rule provides for it.
[DEFENSE COUNSEL]: Right.
THE COURT: But the actual working of it is not in
practice, and not in play. . . .
The basis for the Circuit Court's finding in FOF 44 —
that "HPD does not have any other procedure to obtain a search
warrant" — is not clear from the record. During the suppression
hearing, Cpl. Simifranca testified simply that he "[did not] know
of any other way to get a search warrant other than the way that
[he] just described . . . ." The DPA later stated: "It is my
understanding, as what the court has indicated, that there was no
telephonic procedures in place [to obtain a warrant] at the time
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of this incident. But defense counsel is not willing to
stipulate to that." On this record, the evidence is not "of
sufficient quality and probative value" to support the Circuit
Court's finding that "HPD does not have any other procedure to
obtain a search warrant." Klink, 113 Hawai#i at 351, 152 P.3d at
523. Moreover, even if HPD had no procedure in place to obtain a
telephonic warrant at the time of the suppression hearing, that
fact would not support the Circuit Court's finding in COL 27 that
"[i]n this case, [there was an] inability to obtain a search
warrant within two hours."10/ (Emphasis added.) HRPP Rule 41
plainly authorized telephonic warrants, and nothing in the record
supports a conclusion that HPD was unable to implement a
procedure to make use of that rule for time-sensitive matters.
For these additional reasons, we conclude that COL 27 is clearly
erroneous.
We reject the State's two-fold argument that Armitage
failed to properly challenge the Circuit Court's ruling that
exigent circumstances justified the warrantless blood draw.
First, the State argues that Armitage failed to include in the
appellate record one of the transcripts of the four-day hearing
on her motion to suppress, specifically the August 13, 2018
hearing transcript. However, this transcript, which Armitage
timely ordered, was made part of the record after briefing
concluded, and it supports our analysis of the exigency issue.
Second, the State agues that Armitage did not properly challenge
the findings of fact underlying the Circuit Court's legal
conclusion that exigent circumstances justified the warrantless
blood draw. This argument lacks merit for the reasons previously
stated; Armitage challenged FOF 44 in substance, and also
challenged COL 27, which presented mixed issues of fact and law.
10/
There is also no basis for the Circuit Court's seeming imposition
of a two-hour time limit on obtaining a search warrant to draw blood from a
suspect in these circumstances. Cf. HRS § 291E-3(b) (in any criminal
prosecution for OVUII, the amount of alcohol found in the defendant's blood or
breath within three hours after the time of the alleged violation as shown by
chemical analysis of the defendant's blood is competent evidence concerning
whether the defendant was under the influence of an intoxicant at the time of
the alleged violation); id. § 291E-3(d) (nothing in § 291E-3 limits the
introduction of relevant evidence of a person's alcohol concentration obtained
more than three hours after an alleged OVUII violation).
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Accordingly, the record does not support the conclusion
that given the totality of the circumstances, the investigating
police officers could not reasonably have obtained a search
warrant before drawing Armitage's blood. Because the prosecution
failed to adequately develop the record to demonstrate that the
police officers were justified to act without a warrant, the
Circuit Court clearly erred in ruling that exigent circumstances
existed to justify the warrantless draw of Armitage's blood.
Once it has been determined that evidence was
erroneously admitted, the appellate court must consider whether
the erroneous admission was harmless beyond a reasonable doubt.
State v. Matsumoto, 145 Hawai#i 313, 327, 452 P.3d 310, 324
(2019) (citing State v. McCrory, 104 Hawai#i 203, 210, 87 P.3d
275, 282 (2004)); see State v. Apo, 82 Haw. 394, 403, 922 P.2d
1007, 1016 (App. 1996) ("The admission of illegally obtained
evidence in a criminal trial following the erroneous denial of a
motion to suppress is subject to the harmless error rule.").
"The erroneous admission of evidence is not harmless when there
is a reasonable possibility that the error might have contributed
to the conviction." State v. Baker, 147 Hawai#i 413, 435, 465
P.3d 860, 882 (2020) (citing McCrory, 104 Hawai#i at 210, 87 P.3d
at 282). "If such a reasonable possibility exists, then the
error is not harmless beyond a reasonable doubt and the judgment
of conviction on which it may have been based must be set aside."
Id. (citing McCrory, 104 Hawai#i at 210, 87 P.3d at 282).
Here the jury was instructed that the offense of
Negligent Homicide in the First Degree can be committed in either
of two ways:
As to the first alternative, a person commits the
offense of Negligent Homicide in the First Degree (Under the
Influence) if she causes the death of another person by the
operation of a vehicle in a negligent manner while under the
influence of alcohol.
. . . .
As to the second alternative, a person commits the
offense of Negligent Homicide in the First Degree
(Vulnerable User) if she causes the death of a vulnerable
user by the operation of a vehicle in a negligent manner.
With respect to the first alternative, the jury was instructed:
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"Under the influence" means that a person:
1. Is under the influence of alcohol in an amount
sufficient to impair the person's normal mental faculties or
ability to care for the person and guard against casualty
[(first definition)]; or
2. Has .08 or more grams of alcohol per 100
milliliters or cubic centimeters of the person's blood
[(second definition)].
Thus, the jury was instructed that one of the ways it
could convict Armitage of Negligent Homicide in the First Degree
was if the prosecution proved beyond a reasonable doubt that
Armitage caused the death of Kaulana by operating a vehicle in a
negligent manner while Armitage had .08 or more grams of alcohol
per 100 cubic centimeters of her blood. The erroneously admitted
result of Armitage's blood alcohol test was that on the night of
the incident when her blood was drawn, she had .13 grams of
alcohol per 100 cubic centimeters of whole blood.
Under these circumstances, where the jury was
instructed that "under the influence" meant, inter alia, a blood-
alcohol concentration of .08 or higher, and the erroneously
admitted result of Armitage's blood alcohol test by itself
satisfied that definition, we cannot conclude there was no
reasonable possibility that the error might have contributed to
Armitage's conviction. Accordingly, the error was not harmless
beyond a reasonable doubt, and the conviction for Negligent
Homicide in the First Degree must be set aside. See Baker,147
Hawai#i at 435, 465 P.3d at 882.
We further conclude that without considering evidence
of Armitage's blood alcohol test result, there was sufficient
evidence to convict her of Negligent Homicide in the First Degree
under the first alternative (Under the Influence), based on the
first definition of "under the influence," i.e., "under the
influence of alcohol in an amount sufficient to impair the
person's normal mental faculties or ability to care for the
person and guard against casualty." HRS § 291E-1(1). First, the
State presented substantial evidence at trial that Armitage
caused the death of Kaulana by driving the subject vehicle in a
negligent manner. Specifically, Wakinekona testified that on the
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night of the incident, he drove ahead of Armitage on Farrington
Highway while she followed behind; they both were "weaving
through traffic"; and they both were "driving fast and going in
between cars." Another witness testified that the two vehicles
"flew by him," as he drove his own vehicle at 40 miles per hour.
The State also presented evidence that near the area of
Kalaniana#ole Beach Park, Armitage's vehicle hit Kaulana, whose
body landed 198 feet from the area of impact; the posted speed
limit in the area of the collision was 35 miles per hour; the
speed of the impact was 60 miles per hour or faster; there were
no skid marks, scuff marks, yaw marks, or tire marks at the scene
of the collision, indicating "there was no reaction" by the
driver; Armitage's vehicle was extensively damaged by the impact,
consistent with having hit Kaulana; and Kaulana "was killed
crossing Farrington Highway by a vehicle traveling at a high rate
of speed."
Second, the State presented substantial evidence at
trial that Armitage caused Kaulana's death while under the
influence of alcohol in an amount sufficient to impair her normal
mental faculties or ability to care for herself and guard against
casualty. Specifically, the State presented evidence that on the
night of the incident, Armitage had two mai tais during dinner
and a shot of liquor after dinner; she collided with Kaulana
while driving her vehicle at a high rate of speed; when police
responded to Armitage's location, she had "a very strong odor of
alcohol" and "red, glassy eyes," and "throughout the entire time,
she was having a hard time maintaining balance"; Armitage
performed poorly on the standardized field sobriety tests that
were administered to her; and, after her arrest, Armitage stated
to the arresting officer that "she's not going to lie, she had
eight beers[.]"11/ Accordingly, on this record, even without
considering evidence of Armitage's blood alcohol test result, the
evidence was sufficient to support Armitage's conviction for
Negligent Homicide in the First Degree.
11/
Following the suppression hearing, the Circuit Court concluded
that this statement and others "were not in response to any actions of the
[HPD], i.e, were spontaneous, not the products of interrogation, and therefore
admissible." Armitage does not challenge this COL on appeal.
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Therefore, IT IS HEREBY ORDERED that the Judgment of
Conviction and Sentence, entered on November 1, 2019, in the
Circuit Court of the First Circuit, is vacated, and this case is
remanded to the Circuit Court for a new trial.
DATED: Honolulu, Hawai#i, October 22, 2021.
On the briefs:
/s/ Katherine G. Leonard
Andrew T. Park Presiding Judge
for Defendant-Appellant.
Chad M. Kumagai, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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