State v. Ayres Jr. ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-APR-2021
07:49 AM
Dkt. 17 SO
NO. CAAP-XX-XXXXXXX
(Consolidated with No. CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JOAQUIN AYRES, JR., Defendant-Appellant
and
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JOAQUIN AYRES, JR., Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5DTC-16-001442)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
In this consolidated appeal,1 Defendant-Appellant,
Joaquin Ayres, Jr. (Ayres), appeals from the April 27, 2017
Judgment and Notice of Entry of Judgment entered by the District
Court of the Fifth Circuit (District Court).2 Following a jury-
waived trial, the District Court convicted Ayres of Driving
Without a Valid Driver's License (DWOL) in violation of Hawaii
Revised Statutes (HRS) § 286-102 (2007 & Supp. 2015).3
1
Ayres filed a Notice of Appeal on May 3, 2017 in CAAP-XX-XXXXXXX
as a self-represented party. Later the same day, Ayres' court-appointed
counsel also filed a Notice of Appeal in CAAP-XX-XXXXXXX. This court
consolidated the appeals under CAAP-XX-XXXXXXX.
2
The Honorable Michael K. Soong presided.
3
HRS § 286-102(a) provides that no person "shall operate any
category of motor vehicles listed in this section without first being
(continued...)
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On appeal, Ayres contends that the District Court erred
by (1) failing to hold a voluntariness hearing on Ayres'
"inability to produce a driver's license in response to the
officer's request, as this error was not harmless" as Ayres was
"under arrest;" (2) improperly allowing the officer to testify
about his refreshed recollection of Ayres' social security number
"where the voir dire suggested that he had no recollection but,
instead, was just reading off the document;" and (3) there was
insufficient admissible evidence to convict Ayres of DWOL.
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, as
well as the relevant statutory and case law, we resolve Ayres'
points of error as follows, and affirm.
The following facts were adduced at the April 27, 2017
trial on Plaintiff-Appellee State of Hawai#i's (State) Amended
Complaint4 charging Ayres with misdemeanor DWOL as a repeat
offense under HRS §§ 286-102 and 286-136(b) (2007),5 for having
"two or more prior convictions in the preceding five-year
period." Kaua#i Police Department (KPD) Officer Macy Telles
(Officer Telles) testified that on January 29, 2016, he drove
past someone he recognized as Ayres, who was sitting in his motor
vehicle parked on Niumalu Road, County of Kaua#i. Officer Telles
observed Ayres pull out and drive along Niumalu Road in the
opposite direction, whereupon Officer Telles contacted KPD
dispatch for a driver's license check on Ayres. Officer Telles
3
(...continued)
appropriately examined and duly licensed as a qualified driver of that
category of motor vehicles."
4
The second charge for having no motor vehicle insurance, in
violation of HRS § 431:10C-104(a), was dismissed with prejudice at trial.
5
HRS § 286-136(b) provides in relevant part:
(b) Any person who is convicted of violating
section 286-102 . . . shall be subject to a minimum
fine of $500 and a maximum fine of $1,000, or
imprisoned not more than one year, or both, if the
person has two or more prior convictions for the same
offense in the preceding five-year period.
2
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was already familiar that Ayres may not have a driver's license.
Dispatch confirmed that Ayres did not have a license. Officer
Telles followed Ayres, saw Ayres park at a private home and stand
outside the driver's side door of his vehicle. Officer Telles
parked, called Ayres over to him and asked Ayres to produce a
driver's license, motor vehicle registration, and proof of motor
vehicle insurance. When Ayres was unable to produce any of the
documents, Officer Telles issued Ayres citations for DWOL and for
not having insurance. Officer Telles obtained from Ayres his
date of birth, the last four digits of his social security
number, and the officer noted them on the citation.
When questioned about Ayres' date of birth, Officer
Telles needed the citation to refresh his recollection. When
Officer Telles needed to refresh his recollection a second time
to confirm Ayres' last four social security number digits, Ayres
objected to Officer Telles' recollection as not being refreshed
because he was reading from the citation. After Officer Telles'
examination was concluded, Ayres also "object[ed] to anything
that might be deemed a confession by Mr. Ayres because there's
not been a voluntariness hearing." These objections were
overruled.
The District Court received into evidence State's
Exhibit P1 under seal, which contained an affidavit and driver's
license record for "AYRES JOAQUIN COSTA JR" on file with the
County of Kaua#i, Driver License Section; Exhibits P3 and P4
which consisted of a DWOL citation and certified judgment of DWOL
conviction in 5DTC-13-002287; and Exhibits P5 and P6, which
consisted of a DWOL citation and certified judgment of DWOL
conviction in 5DTC-14-002825.
The District Court found Ayres guilty of DWOL but
concluded that the State did not prove two prior DWOL convictions
for purposes of sentencing Ayres for a misdemeanor, as a repeat
DWOL offender. Ayres was sentenced for DWOL as a petty
misdemeanor, to 30 days in jail, a $7 Driver's Education fee and
a $30 Criminal Injury fee. Ayres was ordered to serve his jail
sentence concurrently with another 30-day jail sentence imposed
3
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for a separate criminal contempt of court offense that is not a
part of this appeal. Ayres timely appealed the DWOL conviction.
A Voluntariness Hearing was Not Required
Ayres contends that the District Court erred by not
holding a voluntariness hearing on Ayres' "inability to produce"
a license and this error "was not harmless" because Ayres was
"under arrest."6 Ayres argues that the inability to produce his
driver's license, motor vehicle registration, and proof of motor
vehicle insurance in response to Officer Telles' request was a
confession pursuant to HRS § 621-26 (2016), which required a
voluntariness hearing at trial. This contention is without
merit.
HRS § 621-26 provides that "[n]o confession shall be
received in evidence unless it is first made to appear to the
judge before whom the case is being tried that the confession was
in fact voluntarily made." Preliminarily, we note that Ayres did
not timely raise an objection to the lack of a voluntariness
determination. At the point Officer Telles gave the testimony
that Ayres now claims as error, Ayres did not object.7 See
Hawai#i Rules of Evidence (HRE) Rule 103(a)(1) (requiring timely
objection and specific ground of objection); State v. Hoglund, 71
Haw. 147, 150, 785 P.2d 1311, 1313 (1990) ("Generally, the
6
Ayres was cited, not arrested. Ayres' contention that Ayres was
"under arrest" is inaccurate.
7
The trial transcript reflects the following:
Q. [(BY PROSECUTOR)] What documents did you ask him
to produce.
A. [(BY OFFICER TELLES)] His driver's license,
registration and insurance.
Q. Okay. Was he able to produce a driver's license.
A. No.
Q. And did you check on the status of his driver's
license.
A. I had prior, yes.
Ayres did not object.
4
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failure to properly raise an issue at trial precludes a party
from raising that issue on appeal."). Following this direct
examination testimony, Ayres conducted cross-examination of
Officer Telles, the State conducted redirect examination, and
Ayres waived re-cross examination. When Officer Telles was
permitted by the District Court to step down, only then did Ayres
raise an objection to the "voluntariness of certain statements"
which Ayres' counsel even acknowledged he "may have waived[.]"8
Thus, the voluntariness objection was waived.
Assuming arguendo that Ayres preserved a voluntariness
objection, Ayres' conduct in not being able to produce the
requested documents is not a statement or confession that
triggers the application of HRS § 621-26. Officer Telles
testified that he asked Ayres to produce a license, registration,
and insurance documents, and that Ayres was unable to produce
any. He did not testify as to what Ayres said in response to the
request to produce documents. The District Court overruled the
objections, saying: "[t]hat's not a statement." The District
Court did not err in concluding that on this record, there was no
8
The trial transcript reflects the following:
[DEFENSE COUNSEL]: No recross.
THE COURT: Officer Telles, you can step down and wait
outside.
[DEFENSE COUNSEL]: Briefly, you Honor, before he
leaves, I'm not sure that –- I'm not sure that certain
statements
–- I wonder if I should have objected, and I waived that at
this point, to the voluntariness of certain statements that
Mr. Ayers [sic] made at the time as it was described by the
officer. I would just object –- perhaps, it's too late, but
I would object to anything that might be deemed a confession
by Mr. Ayers [sic] because there's not been a voluntariness
hearing.
THE COURT: Can you be specific?
[DEFENSE COUNSEL]: I believe that there was –- that
Officer Telles testified that Mr. Ayers [sic] was unable to
provide his registration or license or insurance.
THE COURT: That's not a statement. I don't remember
testimony as to any statement.
5
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statement by Ayres. See State v. Ortiz, 91 Hawai#i 181, 189, 981
P.2d 1127, 1135 (1999) (right/wrong standard of review applies
for evidentiary ruling where there can only be one correct
result). Because there was no statement or confession, a
voluntariness hearing under HRS § 621-26 was not required.
The Record Reflects that the Officer's
Recollection was Refreshed
Ayres contends that the District Court erroneously
allowed Officer Telles "to testify about his refreshed
recollection" of Ayres' social security number where the "voir
dire suggested that he had no recollection" and was just reading
from the document. This contention is without merit.
Officer Telles testified about issuing a citation to
Ayres and that he took down Ayres' last four digits of his social
security number, but that he did not memorize it and the citation
would refresh his memory.9 Following Ayres' voir dire
examination when Officer Telles stated that he did not generally
remember the social security number of the person he cited, Ayres
objected to the use of the citation to refresh the officer's
recollection, which was overruled. Ayres objected again,
stating: "I don't believe that there's a credible showing that
this is refreshing his recollection. I believe he'll just be
reading off the document." The Court again overruled the
objection, and the officer testified as follows:
Q. [(BY PROSECUTOR)] All right. Officer Telles,
9
The trial transcript reflects the following:
Q. [(BY PROSECUTOR)] Okay. And did you also take
down the last four of his Social.
A. [(BY OFFICER TELLES)] Yes.
Q. And what was the last four digits of his Social.
A. I would have to look at that document again. I
didn't memorize it.
Q. And would you [sic] would the citation refresh
your recollection.
A. Yes.
6
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is your memory refreshed.
A. Yes.
Q. What were the last four digits of the
defendant's Social Security number.
A. [XXXX].
(emphasis added).
To support his contention, Ayres relies on State v.
Dibenedetto, 80 Hawai#i 138, 144, 906 P.2d 624, 630 (App. 1995),
which held that a police officer's testimony relating to a field
sobriety test should have been stricken because he did not have a
"present recollection" of the test at the time he testified, and
had testified "based on what he had recently read in his report."
In Dibenedetto, the defense established through its questioning
that the police officer was "[w]ithout memory of what actually
happened" and that the officer only had a memory of his recent
review of his report. Id. at 141, 906 P.2d at 627. No similar
showing was made in this case, and Dibenedetto is inapposite.
HRE Rule 61210 permits a witness to use a writing to
refresh his or her recollection. "[W]hen a writing is used to
refresh a witness's recollection, the witness should testify from
'a memory thus revived,' resulting in testimony from present
recollection, not a memory of the writing itself." State v.
Ferrer, 95 Hawai#i 409, 432-33, 23 P.3d 744, 767-78 (App. 2001)
(quoting Dibenedetto, 80 Hawai#i at 144, 906 P.2d at 630)
(internal citation omitted)). In Ferrer, the record showed that
10
HRE Rule 612 provides:
If a witness uses a writing to refresh the witness' memory
for the purpose of testifying, either:
(1) While testifying, or
(2) Before testifying, if the court in its discretion
determines it is necessary in the interests of
justice,
an adverse party is entitled to have the writing produced at
the hearing, to inspect it, to cross-examine the witness
thereon, and to introduce in evidence those portions which
relate to the testimony of the witness.
7
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the officer who administered the intoxilyzer test did have a
memory that the result "was over .08" but could not recall the
"exact number" of the test result, and needed his report to
refresh his memory. Id. at 433, 23 P.3d at 778. The Ferrer
court found that:
when Officer Chock could not remember the exact reading of
Defendant's Intoxilyzer test result, which, given the
passage of time, was understandable, it was proper under
HRE Rule 612 for the State to allow Officer Chock to review
the report of Defendant's Intoxilyzer test and refresh his
present recollection as to Defendant's exact score on the test.
Id. In this case, as in Ferrer, the record shows that Officer
Telles testified from "a memory thus revived," resulting in
testimony from his present recollection and not a memory of the
citation itself. Id. at 432, 23 P.3d at 767.
"[A]fter reviewing a writing while testifying,
testimony of the witness laying a foundation that the witness's
memory has actually been refreshed after reviewing the writing is
required before the witness's testimony can be admitted under HRE
Rule 612." State v. Wakamoto, 143 Hawai#i 443, 452, 431 P.3d
816, 825 (2018). In Wakamoto, the supreme court found that
proper foundation was not laid for a police officer's continued
testimony regarding a field sobriety test on grounds that the
officer's recollection had been refreshed, because the trial
court did not require that the officer be asked whether his
recollection had been refreshed after the defense raised an HRE
Rule 612 objection. Id. at 453, 431 P.3d at 826. In this case,
the record reflects that the State laid proper foundation that
Officer Telles' memory was actually refreshed before the officer
testified to the last four digits of the social security number.
See id.
Ayres' argument that the refreshing of Officer Telles'
recollection would not be a "credible showing" because the
officer would "just be reading off the document" is a credibility
challenge that the officer should not be believed despite the
officer's testimony that his memory was refreshed. "[I]t is
well-settled that an appellate court will not pass upon issues
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dependent upon the credibility of witnesses and the weight of the
evidence; this is the province of the trier of fact," and "the
trier of fact may accept or reject any witness's testimony in
whole or in part." State v. Paris, 138 Hawai#i 254, 267, 378
P.3d 970, 983 (2016) (brackets and citations omitted). Whether
the District Court credited Officer Telles' testimony as
establishing the necessary foundation for a refreshed
recollection, or not, was within the province of the District
Court as the factfinder. On this record, we conclude that the
District Court did not err in admitting the testimony of Officer
Telles' refreshed recollection of Ayres' social security number.
See Wakamoto, 143 Hawai#i at 450, 431 P.3d at 823 (applying
"right/wrong" standard in determining admissibility of evidence
under HRE Rule 612).
There was Sufficient Evidence to Convict Ayres
of DWOL
Ayres contends that there was insufficient admissible
evidence to convict Ayres of DWOL because Ayres' "confession and
evidence of [his] social security number and date of birth were
not properly in evidence."11 As we have rejected these points of
11
Ayres' argument regarding his date of birth being erroneously
admitted in evidence was not preserved. This contention was not raised in any
point of error, as required under Hawai#i Rules of Appellate Procedure (HRAP)
Rule 28(b)(4). Nor has Ayres identified where in the record the alleged error
occurred or was objected to, under the rule. See HRAP Rule 28(b)(4)(ii) and
(iii). The record actually reflects that no objection was raised as to the
date of birth evidence, as follows:
Q. [(BY PROSECUTOR)] And did you note Joaquin Ayers'
date of birth on the citation.
A. [(OFFICER TELLES)] Yeah, I wrote it. I don't know
offhand what --
Q. Is there anything that would refresh your
recollection as to whether or not you did.
A. Yeah, if I seen the citation.
Q. Okay.
[PROSECUTOR]: Your Honor, I'm going to show
Officer Telles, just to refresh his recollection, what
is marked for identification as Exhibit P-7.
(continued...)
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error supra, this contention is also without merit.
On appeal, "[e]vidence adduced in the trial court must
be considered in the strongest light for the prosecution when the
appellate court passes on the legal sufficiency of such evidence
to support a conviction[.]" State v. Kalaola, 124 Hawai#i 43,
49, 237 P.3d 1109, 1115 (2010) (quoting State v. Richie, 88
Hawai#i 19, 33, 960 P.2d 1227, 1241 (1998) (internal quotations
and citation omitted)). "The test on appeal is not whether guilt
is established beyond a reasonable doubt, but whether there was
substantial evidence to support the conclusion of the trier of
fact." Id. "'Substantial evidence' as to every material element
11
(...continued)
THE COURT: Show to [defense counsel] first.
Any objection, [defense counsel]?
[DEFENSE COUNSEL]: Let me just check. I'm sure
it's fine but -- looks like it's accurate. Yes, your
Honor. No objection.
[PROSECUTOR]: Your Honor, may I approach the
witness?
THE COURT: Yes.
BY [PROSECUTOR]:
Q. Officer Telles, just take a look at this. Look
over the document and after you had a chance to take a
look at the document, look up at me.
Officer Telles, is your memory refreshed as to
whether or not you took down the defendant's date of birth.
A. Yes.
Q. What was the defendant's date of birth.
A. [X/XX]/56.
Q. Okay. And did you also take down the last four of
his Social.
A. Yes.
Q. And what was the last four digits of his Social.
There was no objection to the date of birth testimony. Defense counsel
subsequently conducted voir dire on the officer's recollection as to the
social security number testimony, but not the date of birth testimony.
Therefore, the objection to the date of birth testimony was not preserved, and
we will not address it. See HRE Rule 103(a)(1); Hoglund, 71 Haw. at 150, 785
P.2d at 1313.
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of the offense charged is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion." Richie, 88 Hawai#i
at 33, 960 P.2d at 1241 (citation omitted).
In State v. Nishi, 9 Haw. App. 516, 528, 852 P.2d 476,
482, reconsideration granted, 9 Haw. App. 660, 853 P.2d 543(1993), this court held that the prosecution must present
evidence linking the defendant with a person by the same name in
the traffic abstract in evidence. The Nishi court concluded that
the State "presented no evidence of Defendant's driver's license
number or social security number or birth date that could be
compared with information on the traffic abstract." Id. at 528,
852 P.2d at 482. In this case, the prosecution against Ayres did
not simply rest on the matching of Ayres' name to the name of the
individual in Exhibit P1, the driver's license record; there was
also evidence of the last four digits of Ayres' social security
number and date of birth before the District Court. These
additional identifiers corresponded to the information in Exhibit
P1. Exhibit P1 established that Ayres did not have a valid
driver's license, and his license was expired. Viewing the
evidence before the District Court in the light most favorable to
the prosecution, there was substantial evidence to support the
DWOL conviction against Ayres. See Kalaola, 124 Hawai#i at 49,
237 P.3d at 1115.
Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment filed on April 27, 2017 in the
District Court of the Fifth Circuit, is affirmed.
DATED: Honolulu, Hawai#i, April 28, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Matthew Mannisto Chief Judge
(Law Office of Matthew
Mannisto) /s/ Katherine G. Leonard
for Defendant-Appellant Associate Judge
Tracy Murakami /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
County of Kauai
for Plaintiff-Appellee
11