State v. Vasconcellos ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-DEC-2023
08:14 AM
Dkt. 52 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MICAH S.K. VASCONCELLOS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KANE#OHE DIVISION
(CASE NO. 1DTA-18-03320)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Micah S.K. Vasconcellos
(Vasconcellos) appeals from the Notice of Entry of Judgment
and/or Order and Plea/Judgment, entered on December 22, 2020, in
the District Court of the First Circuit, Kane#ohe Division
(District Court).1/ Following a bench trial, Vasconcellos was
convicted of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1) (Supp. 2018),2/ and Operating a Vehicle After
1/
The Honorable William M. Domingo presided over the December 22,
2020 trial and entered the Judgment. The Honorable Florence Nakakuni presided
over the December 31, 2019 hearing (suppression hearing) on Vasconcellos's
December 11, 2018 Motion to Suppress Statements ( Motion to Suppress).
2/
At the time of the alleged offense, HRS § 291E-61 provided, in
relevant part:
Operating a vehicle under the influence of an
intoxicant. (a) A person commits the offense of operating a
vehicle under the influence of an intoxicant if the person
operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
(continued...)
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License and Privilege Have Been Suspended or Revoked for
Operating a Vehicle Under the Influence of an Intoxicant (OVLPSR-
OVUII), in violation of HRS § 291E-62(a)(1) and (a)(2) (Supp.
2018).3/
On appeal, Vasconcellos contends that: (1) the "case
must be dismissed pursuant to State v. Thompson[, 150 Hawai#i
262, 500 P.3d 447 (2021),] where the [C]omplaint did not meet the
requirements of HRS § 805-1" and Vasconcellos was arraigned on
the "fatally defective Complaint";4/ (2) the District Court
conducted a defective colloquy under Tachibana v. State, 79
Hawai#i 226, 900 P.2d 1293 (1995); (3) the District Court erred
in "failing to suppress Vasconcellos's responses to the [medical
rule-out (MRO)] questions and all subsequent evidence and
statements as the 'fruit of the poisonous tree'"; and (4) the
District Court erred "in allowing [Officer Joseph] Amasiu's
[(Officer Amasiu)] testimony on the [standardized field sobriety
test (SFST)] where he had no present recollection of the test."
2/
(...continued)
mental faculties or ability to care for the
person and guard against casualty[.]
3/
At the time of the alleged offense, HRS § 291E-62 provided, in
relevant part:
Operating a vehicle after license and privilege have
been suspended or revoked for operating a vehicle under the
influence of an intoxicant; penalties. (a) No person whose
license and privilege to operate a vehicle have been
revoked, suspended, or otherwise restricted pursuant to this
section or to part III or section 291E-61 or 291E-61.5, or
to part VII or part XIV of chapter 286 or section 200-81,
291-4, 291-4.4, 291-4.5, or 291-7 as those provisions were
in effect on December 31, 2001, shall operate or assume
actual physical control of any vehicle:
(1) In violation of any restrictions placed on the
person's license; [or]
(2) While the person's license or privilege to
operate a vehicle remains suspended or
revoked[.]
4/
We have reordered Vasconcellos's points of error and have
consolidated his first point of error for clarity. Vasconcellos raised his
first point of error in a supplemental brief filed on May 19, 2022, pursuant
to this court's April 21, 2022 Order. Plaintiff-Appellee State of Hawai #i
(State) filed a supplemental brief on May 20, 2022, pursuant to the same
Order. The Order permitted the parties to file supplemental briefs addressing
the supreme court's decision in Thompson, which was issued after briefing in
this appeal was closed.
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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
Vasconcellos's points of error as follows.
(1) On October 12, 2018, Vasconcellos was charged by
Complaint with OVUII and OVLPSR-OVUII. The Complaint was signed
by a deputy prosecuting attorney, but was not subscribed under
oath by a complainant or accompanied by a declaration in lieu of
affidavit. On December 10, 2021, the Hawai#i Supreme Court
decided Thompson, which held that a penal summons or arrest
warrant cannot be issued on the basis of a complaint that is not
compliant with HRS § 805-1.5/ 150 Hawai#i at 267-69, 500 P.3d at
452-54; see State v. Mortensen-Young, 152 Hawai#i 385, 393-95,
526 P.3d 362, 370-72 (2023) (construing Thompson). Based on
Thompson, Vasconcellos argues that the Complaint was "fatally
defective" because it did not meet the requirements of HRS § 805-
1. Vasconcellos further argues that his arraignment "was
effectively a nullity" because it was based on the Complaint.
Vasconcellos concedes that he did not raise these issues in the
District Court.
We assume without deciding that Vasconcellos did not
waive these issues by failing to raise them below. The Hawai#i
Supreme Court recently held in Mortensen-Young that HRS § 805-1
(2014) applies only to criminal complaints used to obtain a penal
summons or arrest warrant. 152 Hawai#i at 393-95, 526 P.3d at
5/
At the time of the alleged offense here and in Thompson, HRS
§ 805-1 (2014) provided, in pertinent part:
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. . . . Upon
presentation of the written complaint to the judge in whose
circuit the offense allegedly has been committed, the judge shall
issue a warrant, reciting the complaint and requiring the sheriff,
or other officer to whom it is directed, except as provided in
section 805-3, to arrest the accused and to bring the accused
before the judge to be dealt with according to law; and in the
same warrant the judge may require the officer to summon such
witnesses as are named in the warrant to appear and give evidence
at trial. The warrant may be in the form established by the usage
and practice of the issuing court.
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370-72. In other cases, such as the OVUII prosecutions at issue
in Mortensen-Young, HRPP Rule 7 provides the proper framework to
analyze the sufficiency of complaints. In Mortensen-Young, the
supreme court held that the trial court improperly dismissed the
complaints against the appellees, reasoning that the charging
instruments had complied with HRPP Rule 7(d), and were thus
sufficient to initiate prosecutions for OVUII. Id. at 399, 526
P.3d at 376.
Here, as in Mortensen-Young, HRS § 805-1 is
inapplicable because the Complaint was not used to obtain a penal
summons or arrest warrant; Vasconcellos was already arrested and
had posted bail when the State filed the Complaint. See id. at
395, 526 P.3d at 372. The Complaint set forth a plain and
concise statement of the essential facts, was signed by the
prosecutor, and referenced the statutes that Vasconcellos
allegedly violated, as required by HRPP Rule 7(d). Therefore,
HRS § 805-1 was inapplicable and the Complaint was sufficient to
initiate the subject prosecution. Further, because the Complaint
was not "fatally defective," Vasconcellos's arraignment based on
the Complaint was not a nullity. Vasconcellos's first point of
error is without merit.
(2) Vasconcellos contends that the District Court's
Tachibana colloquy was defective in several respects, and as a
result, it cannot be concluded that Vasconcellos waived his right
to testify knowingly, intelligently, and voluntarily.6/ Because
we conclude that the District Court's Tachibana colloquy failed
to maintain an even balance between Vasconcellos's right to
testify and his right not to testify, we do not reach his
remaining contentions about the colloquy.
6/
Vasconcellos argues that the colloquy was defective in the
following respects: "(1) the court added 'the right not to make incriminating
statements' to the colloquy which implied that Vasconcellos's testimony would
necessarily be incriminating and not exculpatory; (2) the court also stated
that 'anything you say can be used against you,' again implying that any
testimony that Vasconcellos might give would be used against him and not in
his favor; (3) the court advised Vasconcellos that if he testified that he
would be required to answer all of the prosecutor's questions on cross-
examination which is incorrect as he would not be required to answer improper
questions; and (4) the court accepted Vasconcellos's response, "I'm good," as
a waiver of his right to testify when this statement is ambiguous and did not
clearly confirm that he was waiving his right to testify and that it was his
decision."
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After the State rested, defense counsel indicated his
understanding that Vasconcellos did not wish to testify, and the
District Court engaged in the following colloquy with
Vasconcellos:
THE COURT: All right. Have you ever testified before
in any court proceeding?
[VASCONCELLOS]: No.
THE COURT: Okay. You understand that you have a
right to testify and a right not to testify? You understand
that?
[VASCONCELLOS]: Yes.
THE COURT: You understand that . . . you have a
constitutional right not to make any incriminating
statements? You understand that?
[VASCONCELLOS]: Yes.
THE COURT: You understand that you have the
constitutional right to remain silent and not testify at
this trial?
[VASCONCELLOS]: Yes.
THE COURT: You understand if you do not testify, the
Court cannot hold –- hold it against you that you're not
testifying? You understand that?
[VASCONCELLOS]: Yes, sir.
THE COURT: You understand that you also have a right
to testify, but anything you say can be held against you?
You understand that?
[VASCONCELLOS]: Yes.
THE COURT: All right. You understand that if you do
testify, you'll be subject to cross-examination, where the
prosecutor will be permitted to ask you questions and you
will be required to answer those questions? You understand
that?
[VASCONCELLOS]: Yes.
THE COURT: Although you should confer with your
attorney whether to testify or not, you understand that the
final decision is entirely up to you?
[VASCONCELLOS]: Yes, sir.
THE COURT: No one can prevent you from testifying if
that is what you wish because that is your right to testify.
You understand that?
[VASCONCELLOS]: Yes, sir.
THE COURT: Do you have any questions about what I've
explained to you?
[VASCONCELLOS]: No, sir.
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THE COURT: Understanding all that I've explained to
you, do you wish to testify today?
[VASCONCELLOS]: I'm good.
THE COURT: All right. Court finds that Mr.
Vasconcellos has intelligently, knowingly, and voluntarily
waived his right to testify.
The supreme court has repeatedly emphasized that "the
[trial] court's advisory to the defendant must maintain an 'even
balance' between a defendant's right to testify and the right not
to testify." State v. Monteil, 134 Hawai#i 361, 370, 341 P.3d
567, 576 (2014) (citing State v. Lewis, 94 Hawai#i 292, 295, 12
P.3d 1233, 1236 (2000)). This balance is intended to ensure that
the trial court's advisement does not influence the defendant's
decision one way or the other. See Tachibana, 79 Hawai#i at 236
n.7, 900 P.2d at 1303 n.7.
Here, the District Court failed to maintain an even
balance between its advisements, adding elements that potentially
cast the right to testify in a negative light and risked
influencing Vasconcellos's decision whether or not to testify.
For example, the court asked Vasconcellos, "You understand that .
. . you have a constitutional right not to make any incriminating
statements?" and "You understand that you also have a right to
testify, but anything you say can be held against you? (Emphases
added.) See State v. Watanabe, No. CAAP-XX-XXXXXXX, 2021 WL
2624643, at *3 (App. June 25, 2021) (SDO) (concluding that
"[w]ithout more, the [trial] court's questions — 'And do you
understand that you have the constitutional right not to make any
incriminating statements?' and 'Do you understand that if you
elect to testify, anything you say can and may be used against
you?['] — did not maintain an even balance between Watanabe's
right to testify and the right not to testify." (quoting Monteil,
134 Hawai#i at 370, 341 P.3d at 576) (brackets and some internal
quotation marks omitted)). These questions advised Vasconcellos
of his rights in a manner that implied he could or would be
incriminating himself by testifying. See id. On this record, we
cannot conclude that Vasconcellos's waiver of his right to
testify was knowingly, intelligently and voluntarily made.
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As Vasconcellos did not exercise his right to testify,
we cannot conclude that the District Court's error was harmless
beyond a reasonable doubt because it is not knowable whether
Vasconcellos's testimony, had he given it, could have established
reasonable doubt that he committed the charged offenses. See
State v. Celestine, 142 Hawai#i 165, 173, 415 P.3d 907, 915
(2018). We therefore vacate Vasconcellos's OVUII and OVLPSR-
OVUII convictions.
(3) Prior to trial, Vasconcellos filed the Motion to
Suppress, by which he sought an order precluding the State from
introducing any statements made by Vasconcellos to Honolulu
Police Department (HPD) officers and any evidence gained by the
HPD after Vasconcellos was placed under arrest. Vasconcellos
argued that any such statements and evidence should be suppressed
because he was not advised of his Miranda7/ rights after being
stopped and before being subjected to "custodial interrogation"
in the form of MRO questions by Officer Amasiu. Following the
suppression hearing, the District Court denied the Motion to
Suppress, ruling in part that Vasconcellos was not in custody
when he was asked the MRO questions and participated in the SFST.
On appeal, Vasconcellos argues that the District Court
erred in failing to suppress Vasconcellos's responses to the MRO
questions and "all subsequent evidence and statements as the
'fruit of the poisonous tree.'" He further argues that without
Officer Amasiu's testimony as to Vasconcellos's performance on
the SFST, which followed his responses to the MRO questions,
there was no substantial evidence to support the OVUII
conviction.
The supreme court recently reiterated in State v.
Hewitt, 153 Hawai#i 33, 526 P.3d 558 (2023):
The Miranda rule is, at core, a constitutionally prescribed
rule of evidence that requires the prosecution to lay a
sufficient foundation—i.e., that the requisite warnings were
administered and validly waived before the accused gave the
statement sought to be adduced at trial—before it may adduce
evidence of a defendant's custodial statements that stem
from interrogation during their criminal trial.
7/
Miranda v. Arizona, 384 U.S. 436 (1966).
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The prosecution's burden of establishing that the requisite
warnings were given, however, is not triggered unless the
totality of the circumstances reflect that the statement it
seeks to adduce at trial was obtained as a result of
"custodial interrogation," which, as the United States
Supreme Court defined it in Miranda, consists of
"questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of
their freedom of action in any significant way." In other
words, the defendant, objecting to the admissibility of
their statement and, thus, seeking to suppress it, must
establish that their statement was the result of (1)
"interrogation" that occurred while they were (2) "in
custody."
Id. at 43, 526 P.3d at 568 (brackets omitted) (quoting State v.
Wallace, 105 Hawai#i 131, 137, 94 P.3d 1275, 1281 (2004)).
Here, the threshold issue is whether Vasconcellos was
"in custody" when he was asked the MRO questions by Officer
Amasiu. A person is "in custody" for purposes of article I,
section 10 of the Hawai#i Constitution when probable cause to
arrest has developed. See Hewitt, 153 Hawai#i at 36, 526 P.3d at
561; see id. at 43, 526 P.3d at 568 ("[W]hen probable cause to
arrest exists upon an initial stop or detention, the Hawai#i
constitution requires that Miranda rights be given before
'interrogation' occurs." (citing State v. Ketchum, 97 Hawai#i
107, 126, 34 P.3d 1006, 1025 (2001)). In addition:
When a bright-line rule regarding "custody" (such as the
existence of probable cause) has yet to be triggered,
"[w]hether the defendant was in custody or otherwise
deprived of [their] freedom of action for Miranda purposes
is to be determined from the totality of the circumstances,
objectively appraised." "These [circumstances] would
include the place and time of the interrogation, the length
of the interrogation, the nature of the questions asked, the
conduct of the police, and all other relevant
circumstances."
Hewitt, 153 Hawai#i at 45, 526 P.3d at 570 (citations omitted)
(quoting State v. Patterson, 59 Haw. 357, 361, 581 P.2d 752, 755
(1978)).
Here, the evidence adduced during the suppression
hearing included the following: On September 23, 2018, at around
3 a.m., Officer Amasiu initiated a traffic stop after observing a
pickup truck driven by Vasconcellos make a wide U-turn and "end[]
up climbing up onto the sidewalk cur[b]ing" in completing the
turn. After approaching the vehicle and speaking to
Vasconcellos, Officer Amasiu observed "a strong odor of . . .
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alcohol emitting from his breath[,]" "like a slurred speech[,]"
"glassy eyes, blood-shot red, and basically a flushed face." At
that point, Officer Amasiu had a suspicion that Vasconcellos was
under the influence of alcohol and asked him if he was willing to
participate in the SFST. When Officer Amasiu asked Vasconcellos
if he would participate in the SFST, Vasconcellos "was not free
to leave the scene," and Officer Amasiu would have arrested
Vasconcellos if he had refused to participate in the SFST.
Vasconcellos agreed to participate in the SFST. He "staggered"
when he exited his vehicle. Officer Amasiu then asked
Vasconcellos the MRO questions.8/ Vasconcellos answered "no" to
each of the questions. Officer Amasiu then administered the
SFST.
On this record, we conclude there was sufficient
probable cause that Vasconcellos was operating his vehicle while
under the influence of an intoxicant, such that he was in custody
prior to the MRO questions. See State v. Ramseyer, No. CAAP-21-
0000216, 2023 WL 2728785, at *2-*3 (Haw. App. Mar. 31, 2023)
(SDO) (holding officer had probable cause to arrest defendant for
OVUII after observing her driving, and after stopping defendant,
observing her eyes "appeared to be red, bloodshot and watery,
there was a very strong alcoholic-type beverage odor on her
breath and her speech sounded a little bit slurred" (brackets
omitted)); State v. Ogata, No. CAAP-XX-XXXXXXX, 2020 WL 3430060,
at *1, *3 (Haw. App. June 23, 2020) (SDO) (holding officer had
probable cause to arrest defendant for OVUII after defendant was
removed from his vehicle and officers observed, inter alia, that
defendant could not respond to questions or verbal commands, and
"was very disoriented; had red, bloodshot, and watery eyes;
slurred speech; gave off a strong odor of alcohol; and could not
stay on his feet").
We thus turn to whether the MRO questions were
"interrogation" requiring Miranda warnings. In State v.
Skapinok, 151 Hawai#i 170, 510 P.3d 599 (2022), the supreme court
8/
The MRO questions directed at Vasconcellos included "if he was
under the care of a doctor, an eye doctor, if he was epileptic or diabetic,
whether or not he had contacts, a glass eye[,]" and other questions Officer
Amasiu read from the SFST form.
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held that all seven MRO questions that the defendant was asked
while in custody were likely to elicit an incriminating response,
and therefore Miranda warnings were required. Id. at 184-85, 510
P.3d at 613-14. Because such warnings were not given, the
defendant's answers had to be suppressed. Id. at 185, 510 P.3d
at 614. Here, based on Officer Amasiu's testimony, the MRO
questions that Vasconcellos was asked appear to be the same or
substantially similar to the questions that Skapinok was asked.
See supra note 8. The MRO questions that Vasconcellos was asked
while in custody were thus "interrogation" requiring Miranda
warnings. Because such warnings were not given, the District
Court erred in failing to suppress Vasconcellos's responses to
the MRO questions. Evidence of these responses must be excluded
in any retrial.
We also conclude that the evidence gathered after the
Miranda violation, including questions asked subsequent to the
MRO questions as part of the SFST and Vasconcellos's performance
on the SFST (to which we will refer collectively as "the SFST"),
was not "fruit of the poisonous tree."9/ See Skapinok, 151
Hawai#i at 186, 510 P.3d 599, 615. Based on Officer Amasiu's
testimony, he had already set out to administer the SFST before
asking the MRO questions, and in fact had asked for and received
Vasconcellos's consent for the tests. "The officer[] did not
exploit the illegality by continuing to gather evidence that [he]
had already set out to gather." Id. at 187, 510 P.3d at 616
(quoting State v. Manion, 151 Hawai#i 267, 273, 511 P.3d 766, 772
(2022)). "[T]hat the illegally-obtained evidence is relevant to
interpreting subsequently-obtained evidence does not mean that
discovery of the latter 'exploits' the former." Id. (emphases
and original brackets omitted) (quoting Manion, 151 Hawai#i at
273, 511 P.3d at 772). Thus, the SFST was not the fruit of the
poisonous tree, and the District Court did not err in admitting
the SFST into evidence.
9/
Other than his performance on the SFST, Vasconcellos does not
identify any specific "statements" that he made following the Miranda
violation which he claims were fruit of the poisonous tree.
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Vasconcellos argues that without Officer Amasiu's
testimony as to Vasconcellos's performance on the SFST, i.e., if
the SFST testimony had been suppressed, there was no substantial
evidence to support the OVUII conviction. As we have concluded
that the District Court did not err in admitting the SFST
testimony into evidence, this argument is without merit.
(4) Vasconcellos contends that the District Court erred
in denying his oral motion at the suppression hearing to strike
Officer Amasiu's testimony on the SFST under State v.
Dibenedetto, 80 Hawai#i 138, 906 P.2d 624 (App. 1995). He argues
that the officer had no present recollection of Vasconcellos's
performance on the SFST and was testifying only to what he had
read in his police report. He further argues that without
Officer Amasiu's testimony as to Vasconcellos's performance on
the SFST, there was no substantial evidence to support the OVUII
conviction.
Hawai#i Rules of Evidence Rule 612 permits "a witness
[to] use[] a writing to refresh the witness'[s] memory for the
purpose of testifying . . . ."
When used to refresh the witness's present recollection, a
writing is solely employed to jog the memory of the
testifying witness." 1 J. Strong, McCormick on Evidence §
9, at 29 (4th ed. 1992). Accordingly, when 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." Id.
Dibenedetto, 80 Hawai#i at 144, 906 P.2d at 630. "[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).
At the suppression hearing, Officer Amasiu recounted
Vasconcellos's performance on the SFST as follows: As Officer
Amasiu administered the horizontal gaze nystagmus test,
Vasconcellos showed impairment with his eyes and had a hard time
following instructions and keeping his head still. He kept
moving his head. During the walk-and-turn test, Vasconcellos was
not able to walk in a straight line and stepped off line and
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grabbed onto a nearby guide wire to keep from falling.
Vasconcellos did not follow instructions, took eight steps at
times instead of the nine as instructed, raised his arms, and
missed heel-to-toe. During the one-leg stand test, Defendant
dropped his foot several times, raised his arms more than six
inches, and swayed as he tried to maintain his balance.
Vasconcellos was able to count as instructed. After the
completion of the SFST, Officer Amasiu asked another officer to
place Vasconcellos under arrest for OVUII.
On cross-examination, Officer Amasiu testified that he
reviewed his report before the hearing. He said he would have
remembered the traffic violation whether or not he had put it in
his report. The report did help refresh his recollection as to
other things that happened. Officer Amasiu was candid about
particular details that he did not recall, such as what
Vasconcellos was wearing (other than black sneakers) on the night
of the incident, and at what point during the instructional stage
of the test Vasconcellos could not keep his balance.
The District Court "f[ou]nd that [Officer Amasiu] was
credible in his testimony and that he was testifying, as he said,
from his present memory. . . . He has a present recollection
that was refreshed."
Vasconcellos argues that Officer Amasiu's "claim that
he . . . was testifying from his present recollection was simply
not credible given his admission that he did not recall
significant details of what had occurred." The record reflects,
however, that Officer Amasiu recalled many of the details,
including the material aspects, of Vasconcellos's performance on
the SFST. He recalled, for example, that during the
walk-and-turn test, Vasconcellos was not able to walk in a
straight line and grabbed a guide wire for balance, and during
the one-leg stand test, Vasconcellos dropped his foot several
times and swayed. In these circumstances, we will not disturb
the District Court's finding that Officer Amasiu was credible and
that he was testifying from his present recollection, which was
refreshed after he reviewed his report. See State v. Kaleohano,
99 Hawai#i 370, 376, 56 P.3d 138, 144 (2002) (on a motion to
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suppress, it is for the trial judge to assess the credibility of
witnesses).
Accordingly, the District Court did not err in denying
Vasconcellos's motion to strike the testimony of Officer Amasiu
on the SFST. Vasconcellos's argument that the District Court
lacked sufficient evidence to support his OVUII conviction is
based on his argument that Officer Amasiu's testimony on the SFST
should not have been admitted. As we have concluded that the
District Court did not err in admitting the officer's testimony,
this argument is without merit.
For the reasons discussed above, we vacate the Notice
of Entry of Judgment and/or Order and Plea/Judgment, entered on
December 22, 2020, in the District Court of the First Circuit,
Kane#ohe Division. The case is remanded to the District Court
for further proceedings consistent with this Summary Disposition
Order.
DATED: Honolulu, Hawai#i, December 22, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Alen M. Kaneshiro Chief Judge
for Defendant-Appellant.
Loren J. Thomas, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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