State v. Wakamoto. ( 2018 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-DEC-2018
09:47 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
TYLER K. WAKAMOTO, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-15-05435)
DECEMBER 13, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal arises from the Defendant Tyler K. Wakamoto’s
conviction for the offense of “Operating a Vehicle under the
Influence of an Intoxicant” (“OVUII”) in violation of Hawaiʻi
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Revised Statutes (“HRS”) § 291E-61(a)(1).1 The issue on
certiorari concerns foundational requirements for the admission
of testimony under Hawaiʻi Rules of Evidence (“HRE”) Rule 612,
when a witness testifies after reviewing a “Writing used to
refresh memory.”
After Honolulu Police Department (“HPD”) Officer Manueli
Kotobalavu (“Officer Kotobalavu” or “the Officer”) reviewed his
report for the second time while testifying over defense
objection, the District Court of the First Circuit (“district
court”)2 allowed the Officer to testify regarding Wakamoto’s
field sobriety test without a foundation having been laid that
his memory had been refreshed by reviewing the report. In its
October 20, 2017 Summary Disposition Order (“SDO”), the
Intermediate Court of Appeals (“ICA”) affirmed Wakamoto’s
conviction, stating that no legal authority requires the laying
1
HRS § 291E-61(A)(1) (Supp. 2014) provides:
§291E-61 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 mental faculties
or ability to care for the person and guard against
casualty;
. . . .
2
The Honorable Dyan K. Mitsuyama presided.
2
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of such a foundation. See State v. Wakamoto, No. CAAP-16-
0000873, at 4 (App. Oct. 20, 2017) (SDO).
In his certiorari application (“Application”), Wakamoto
reasserts a question he had posed to the ICA:
Whether the ICA gravely erred in holding that the district
court did not err in denying Wakamoto’s objection to an
officer’s testimony in an OVUII case as refreshed memory
when the officer had already reviewed his report once to
answer the prosecutor’s questions about the standardized
field sobriety test?
Legal authority requires that before testimony is admitted
pursuant to HRE Rule 612 after a witness reviews a writing while
testifying for the purpose of refreshing memory, an evidentiary
foundation must be laid establishing that the witness’s memory
has actually been refreshed.3 Therefore, the ICA erred by
indicating that no legal authority exists requiring that such a
foundation be laid, and the district court erred by admitting
Officer Kotobalavu’s testimony regarding Wakamoto’s field
sobriety test over defense objection without requiring the
proper evidentiary foundation.
Despite evidentiary error, an appellate court may affirm a
judgment of a lower court on any ground in the record that
supports affirmance. See State v. Fukagawa, 100 Hawaiʻi 498,
506, 60 P.3d 899, 907 (2002) (citations omitted). After the
3
Before the witness reviews the writing, a foundation should be laid
that the witness does not recall a fact or event and that the writing will
help the witness refresh the witness’s memory. See Edward J. Imwinkelried,
Evidentiary Foundations 466 (9th ed. 2015).
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defense objected to Officer Kotobalavu again reviewing his
report and questioned whether he had an independent
recollection, the deputy prosecuting attorney raised the
possibility that the officer’s testimony would be admissible
under HRE Rule 802.1(4) governing “Past recollection recorded”4
if it was not otherwise admissible under HRE Rule 612. The
State of Hawaiʻi (“the State”), however, did not alternatively
argue HRE Rule 802.1(4) to the ICA or to this court, and it is
unclear whether the testimony at issue would have been
admissible on this basis. In addition, the erroneous admission
of evidence is not harmless beyond a reasonable doubt if there
is a reasonable possibility that the error might have
contributed to the conviction. See State v. Subia, 139 Hawaiʻi
62, 69, 383 P.3d 1200, 1207 (2016). In this case, the district
court specifically stated it relied in part on Officer
4
HRE Rule 802.1(4) provides:
Rule 802.1 Hearsay exception; prior statements by
witnesses. The following statements previously made by
witnesses who testify at the trial or hearing are not
excluded by the hearsay rule:
. . .
(4) Past recollection recorded. A memorandum or record
concerning a matter about which the witness once had
knowledge but now has insufficient recollection to enable
the witness to testify fully and accurately, shown to have
been made or adopted by the witness when the matter was
fresh in the witness’[s] memory and to reflect that
knowledge correctly. If admitted, the memorandum or record
may be read into evidence but may not itself be received as
an exhibit unless offered by an adverse party.
4
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Kotobalavu’s improperly admitted testimony as a basis for
convicting Wakamoto — thus, the improperly admitted testimony
contributed to the conviction. Therefore, the evidentiary error
cannot be deemed harmless beyond a reasonable doubt.
Accordingly, we vacate the ICA’s November 22, 2017 Judgment
on Appeal entered pursuant to its SDO, as well as the district
court’s Notice of Entry of Judgment and/or Order
and Plea/Judgment, and we remand this case to the district court
for further proceedings consistent with this opinion.
II. Background
A. Factual Background and District Court Proceedings
In a complaint dated December 21, 2015, the State charged
Wakamoto with committing the offense of OVUII on December 2,
2015, in violation of HRS § 291E-61(a)(1). A bench trial took
place on September 20, 2016 and November 17, 2016. At trial,
HPD Officer Jesse Takushi (“Officer Takushi”) and Officer
Kotobalavu testified for the State.
According to the officers’ testimonies, on December 2,
2015, at about 2:35 a.m., on Kalakaua Avenue fronting the Moana
Surfrider Hotel, Officer Takushi conducted a traffic stop on a
vehicle he observed twice unsafely crossing a broken white line.
When Officer Takushi approached the vehicle, he observed that
Wakamoto’s eyes were red and watery and that his pupils appeared
dilated, and he noticed a strong alcoholic-type odor coming from
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Wakamoto. According to Officer Takushi, Wakamoto’s responses
were delayed and slurred, and he could not locate his
registration paperwork. Wakamoto apparently repeatedly picked
up and dropped his license and insurance paperwork, but he did
hand them to Officer Takushi in a timely manner.
Officer Takushi testified that when Wakamoto stepped out of
the vehicle, he stated on his own accord that he “didn’t have
anything to drink,” but Officer Takushi continued to smell an
alcoholic odor. At about this point of the traffic stop,
Officer Kotobalavu, responding to Officer Takushi’s radio
request for assistance, arrived on the scene.
At the start of his trial testimony more than nine months
after the arrest, Officer Kotobalavu could not recall the
location of the traffic stop:
[By the Prosecutor:]
Q. Do you recall the location of this traffic
stop?
A. No, sir, I don’t recall at this time.
Q. Is there something that would help to refresh your
memory?
A. Yes, my report.
Q. Okay.
[Prosecutor]: And may the record reflect that
I’m showing defense counsel.
By [the Prosecutor]:
Q. So, Officer, I’m going to hand you your
police report. Just go ahead and look at it silently
and look up at me when you’re done.
A. Okay.
Q. And I’m taking the report back.
Officer, has your memory been refreshed?
A. Yes.
Q. Okay. And do you recall where the location of the
traffic stop was?
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A. Yes.
Q. Okay. And where was that, sir?
A. Was front -- was on Kalakaua fronting the Moana
Surfrider hotel.
The record does not reflect how long Officer Kotobalavu reviewed
his report before resuming his testimony, but he testified that
he thought Wakamoto’s car was a black two-door Lancer.
Officer Kotobalavu then testified that as he spoke to
Wakamoto, he smelled alcohol and saw that Wakamoto had red,
watery eyes. He testified that Wakamoto was then directed to
walk about fifteen feet away from his car so that Officer
Kotobalavu could conduct a field sobriety test on the dry
concrete sidewalk in front of the Moana Surfrider, which was
free of debris, well lit, and did not have much foot traffic.
He further testified that before conducting the field sobriety
test, Officer Kotobalavu asked Wakamoto a series of questions
regarding Wakamoto’s health. Officer Kotobalavu also repeatedly
asked Wakamoto whether he understood his instructions regarding
the tests. As Wakamoto spoke, Officer Kotobalavu continued to
detect the odor of alcohol coming from him.
Regarding the walk-and-turn test, Officer Kotobalavu
testified that he instructed Wakamoto on how to place his feet,
the direction he should face, and where to place his arms.
Officer Kotobalavu testified that he also demonstrated the test
and that after Wakamoto got in the correct position to begin the
test, he instructed him not to move until he was told to start.
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Officer Kotobalavu testified that before being told to start,
however, Wakamoto swayed about six inches in both directions and
started the test on his own.
Officer Kotobalavu further testified that during the walk-
and-turn test, Wakamoto raised his arms at least once about six
inches away from his body in order to keep his balance while
walking and that Wakamoto took ten steps instead of the
instructed nine, and missed a few heel-to-toes, where his heel
missed his toe by about one inch. According to Officer
Kotobalavu, contrary to instructions, Wakamoto stopped in the
middle of the test. He testified that after the ninth step,
Wakamoto appeared unsure whether he was to turn, and then took
an extra step to turn.
After testifying to the foregoing, the following exchange
occurred:
[By the Prosecutor:]
Q Okay. Is there anything that you recall as far as
his performance other than the turn and the things
that you had testified about to this point?
A No.
Q Okay. Is there something that would help refresh
your memory?
A My report.
Q Okay. And --
[Defense counsel]: Your Honor, at this time
defense would object. At this point the Officer had two
opportunities to review the document. I’m sure once
before. At this point I’m asking is the officer -- does
the officer have an independent recollection of the events,
or he’s just going off what he’s written right now? He’s
had -- I believe he has had multiple opportunities to look
at the document, and there is -- I do believe there’s a
difference between the two.
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[Prosecutor]: Your Honor, if that’s an
issue, I understand [Defense counsel’s] point. If that’s
an issue, you know, we can make this a past recollection
recorded. I mean, this was in December of last year, your
Honor, and the officer conducts these traffic stops
routinely, so --
THE COURT: Overruled.
BY [the Prosecutor]:
Q Officer, I’m going to hand you your -- your
report. Go ahead and take that -- a look at that
silently, and then just let me know when you’re done.
A Okay.
Q And let the record reflect I’m taking the report
back.
Okay. Officer, so any other observations that
you made of the defendant during just -- just the
walk-and-turn just portion of the test?
A Yes. As he took the -- his turn, he did take one
more extra step, so he turned the wrong way, but as
he turned, it wasn’t as instructed, short, choppy
steps. He spun on his right foot to turn himself
around.
Q Okay. When you say that he turned the wrong way,
which way did he turn?
A To the right.
Q Okay. And which way did you instruct for him to
turn?
A To the left. If you took nine steps, you would
automatically turn to the left.
Q Okay. Anything else happened or any other
observation that you made during this portion of the
test?
A No.
Officer Kotobalavu then went on to testify regarding the one-
leg-stand test.
Officer Kotobalavu testified that, in performing the one-
leg-stand test, Wakamoto was required to lift either his right
or left leg about six inches from the ground, with his foot
remaining parallel to the ground, and with his hands at his
sides. Simultaneously, Wakamoto was required to look down at
his feet and count until Officer Kotobalavu told him to stop.
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Officer Kotobalavu testified that he then demonstrated the test
and Wakamoto stated that he understood.
According to Officer Kotobalavu, however, Wakamoto also
began this test before being instructed to start. He testified
that, throughout the test, Wakamoto kept his arms raised further
than six inches away from his body to keep his balance and that
he hopped to maintain his balance and set his foot down twice,
primarily during the first twenty (20) seconds of the test. The
officer testified that Wakamoto also swayed at least three times
throughout the test. Officer Kotobalavu stopped the test after
thirty (30) seconds, and arrested Wakamoto.
During Officer Kotobalavu’s cross-examination, defense
counsel began a line of questioning regarding the specific
circumstances of the traffic stop, such as whether the vehicle
had four or two doors. After the prosecutor objected, defense
counsel explained:
[Defense counsel]: This goes to my -- the -- this
goes to the witness’s ability to recall -- recall
information. What he puts down is pertinent. I believe
that there is no independent recollection (indiscernible)
problems, and my only -- this is my opportunity to cross to
make sure -- to show proof that there are inconsistencies
in his report and in his testimony.
THE COURT: I’m going to allow it. Go ahead.
Officer Kotobalavu then explained that he had previously
testified and had written in his report that the vehicle was a
two-door, but according to HPD’s vehicle license plate search,
Wakamoto’s vehicle was a four-door. Defense counsel asked
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Officer Kotobalavu whether he had asked Wakamoto whether he had
allergies and whether he had just finished a double shift at
work. Officer Kotobalavu also testified on cross-examination
that he remembered Wakamoto saying that he had just come from a
bar to pick up a friend and Wakamoto could have actually been
outside the car when he first approached instead of inside, as
he had earlier testified.
During additional cross-examination on the second trial
date, Officer Kotobalavu testified during cross-examination that
the space between the missed heel-to-toes may have been a half-
inch instead of an inch, as he had earlier testified. He also
reiterated that he told Wakamoto which way to turn and
demonstrated how to execute the test correctly.
Wakamoto then also testified. During direct examination,
Wakamoto testified that Officer Kotobalavu did not specify the
foot on which he needed to step first or which direction to turn
during the walk-and-turn test. Wakamoto testified that the
officer also only instructed him to keep his arms at his side.
He also testified that he was driving on the night in question
because he gave a ride home to a friend who was intoxicated, the
most direct route between the bar and his friend’s home was down
Kalakaua Avenue, and he was familiar with the area.
After considering all of the testimony, the court found
Wakamoto guilty as charged. The district court explained its
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ruling at length. In considering the testimony, the court found
that Wakamoto’s breath smelled like alcohol, and that he had
red, watery eyes. As to the use of Officer Kotobalavu’s report
to refresh his recollection, the court stated:
It is true Officer Kotobalavu indicated sometimes he needed
to reference his report and he couldn’t remember. Granted
that this happened in December of 2015, I totally
understand that. He did indicate, though, that when he
performs these [field sobriety tests], he specifically
instructs, demonstrates, and then instructs again.
The court noted several aspects of the walk-and-turn test that
Officer Kotobalavu had testified to before reviewing his report
a second time: that Wakamoto had started the walk-and-turn test
too soon, missed the heel-to-toe by one inch at least one time,
raised his arms away from his body by at least six inches at
least one time, stopped in the middle of the test, and took ten
steps instead of the instructed nine.
The court also referenced as a basis for the conviction,
however, Officer Kotobalavu’s testimony after his second review
of his report, i.e., that because Wakamoto took an extra step,
it followed that he turned the wrong way.
The court then discussed the results of the one-leg-stand
test, and found that Wakamoto started the test before
instructed, consistently raised his arms through the test,
hopped, and put his foot down before the end of the test. The
court sentenced Wakamoto to a one-year revocation of license, a
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minimum fourteen-hour substance abuse assessment program, and
various fines and fees. His sentence was stayed pending appeal.
B. Appeal to the ICA and Application for Writ of Certiorari
Wakamoto timely filed a Notice of Appeal to the ICA, and
presented a single argument, which he again raises on
certiorari:
The district court erred in denying Wakamoto’s
request to determine if the [standard field sobriety test]
officer was testifying from his memory or from a past
recollection recorded.
Wakamoto argued:
In this case, Officer Kotobatavu [sic] was permitted
to see his report a second time to try to refresh his
memory of Wakamoto’s [field sobriety test] over defense
objection that it was unclear if his memory was actually
refreshed or he was testifying to a past recollection for
which he had no present personal knowledge. Instead of
overruling the defense objection, the district court should
have asked, or let defense counsel ask, if his memory was
actually refreshed or not. It was error for the court not
to do, and it involved a critical piece of evidence.
The ICA rejected the challenge. The ICA indicated that there
was “no evidence, such as an admission that he relied solely on
his report or a failure to recall other details about his
arrival on the scene, to suggest that [Officer Kotobalavu] based
his testimony only on what he read in the report.” Wakamoto,
SDO at 2 (citations omitted). The ICA also stated that before
looking at his report the second time, Officer Kotobalavu
“recalled numerous details about the incident, including
Wakamoto’s appearance and odor, how he conducted and Wakamoto
performed the [horizontal gaze] test, and other aspects of
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Wakamoto’s performance of the Walk-and-Turn test.” Wakamoto,
SDO at 3 (citations omitted). The ICA then stated, "It is
reasonable under the circumstances to infer that the [field
sobriety test] report merely jogged Officer Kotobalavu’s memory.
Wakamoto provides no authority for the contention that an
officer is required to say whether his recollection was
refreshed after looking at the report, and we find none.”
Wakamoto, SDO at 4 (emphasis added).
In his Application, Wakamoto reasserts the argument made to
the ICA:
Whether the ICA gravely erred in holding that the district
court did not err in denying Wakamoto’s objection to an
officer’s testimony in an OVUII case as refreshed memory
when the officer had already reviewed his report once to
answer the prosecutor’s questions about the standardized
field sobriety test?
(some capitalization removed). Wakamoto asserts in his
Application that “no foundation had been laid” for Officer
Kotobalavu’s testimony regarding the field sobriety test after
his second review of his police report.
III. Standard of Review
Errors on evidentiary rulings are subject to the abuse of
discretion standard unless the application of the evidentiary
rule in question can produce only one correct answer, in which
case, we review the alleged error under the “right/wrong”
standard. Kealoha v. County of Hawaiʻi, 74 Haw. 308, 315, 319–
20, 844 P.2d 670, 674, 676 (1993); State v. Dibenedetto, 80
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Hawaiʻi 138, 145, 906 P.2d 624, 631 (App. 1995) (citing Kealoha,
74 Haw. at 315, 844 P.2d at 674). Because a witness cannot be
permitted to testify if the witness has no present recollection,
we apply the “right/wrong” standard in determining the
correctness of a ruling regarding the admissibility of testimony
under HRE Rule 612. See Kealoha, 74 Haw. at 319–20, 844 P.2d at
676.
IV. Discussion
A. Evidentiary foundation required by HRE Rule 612
As indicated above, the first time Officer Kotobalavu
reviewed his report, he testified in response to the deputy
prosecuting attorney’s question that his memory had been
refreshed before continuing to testify. The second time he
asked to see his report, defense counsel objected, raising
questions regarding whether the officer actually had a present
memory or whether he was testifying off of his report. The
court overruled the objection, and the officer continued to
testify regarding Wakamoto’s field sobriety test without stating
that his memory had been refreshed by reviewing his report.
Wakamoto asserts that the district court erred by
overruling his objection and allowing Officer Kotobalavu to
testify regarding the field sobriety test after reviewing his
report the second time because HRE Rule 612 requires a
foundation to have been laid that the Officer’s memory was
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actually refreshed before he resumed his testimony. The ICA
stated “Wakamoto provides no authority for the contention that
an officer is required to say whether his memory was refreshed
after looking at the report, and we find none.” Wakamoto, SDO
at 4. As explained below, however, legal authority does require
such a foundation.
First, the language of HRE Rule 612 provides in relevant
part:
If a witness uses a writing to refresh the witness’[s]
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. . . . .
HRE Rule 612 sets out procedural requirements that must be
followed when a writing is used to refresh a witness’s testimony
while testifying. At first blush, the rule does not seem to
address whether a foundation must be laid that a witness’s
memory has been refreshed after reviewing the writing. However,
a witness’s memory is not necessarily refreshed after reviewing
a writing, and the plain language of the rule indicates it
governs a writing used to refresh a witness’s memory. In other
words, HRE Rule 612 is triggered only when a writing actually
refreshes the witness’s memory. Thus, the language of HRE Rule
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612 alone requires that a foundation be laid that a witness’s
memory has been refreshed after reviewing a writing.
In Dibenedetto, the ICA provided further guidance on this
issue. That appeal arose out of a defendant’s conviction by a
jury for Driving Under the Influence of Intoxicating Liquor
(“DUI”) under HRS § 291-4, the law in effect at the time. See
Dibenedetto, 80 Hawaiʻi at 141, 906 P.2d at 627. A police
officer testified regarding the defendant’s performance on a
field sobriety test. See id. Based on the officer’s responses,
defense counsel argued that the officer was not testifying from
his present recollection but off of the written police report,
and moved to strike the officer’s testimony. See id. The trial
court denied the motion to strike, ruling that the matter was
for the jury to determine, see 80 Hawaiʻi at 142, 906 P.2d at
628, which was one of the issues on appeal addressed by the
ICA, 80 Hawaiʻi at 144-45, 906 P.2d at 630-31.
After reviewing the officer’s testimony, in which the
officer indicated that his testimony was based on what he had
recently read in his report, the ICA concluded that the officer
did not have a “present recollection” of the field sobriety test
at the time he testified, then addressed whether the trial court
had erred in failing to strike the officer’s testimony regarding
the field sobriety test. Dibenedetto, 80 Hawaiʻi at 144, 906
P.2d at 630.
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The ICA then discussed HRE Rule 612, stating:
[HRE] Rule 612 indicates that a witness may use a writing
to refresh his memory for the purpose of testifying. A
writing, such as a police report, used to refresh a
witness’s memory is ordinarily not submitted into evidence.
3 J. Wigmore, Evidence in Trial at Common Law § 763, at 142
(Chadbourn rev. ed. 1970). 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. A witness’s
recollection must be revived after he or she consults the
particular writing or object offered as a stimulus so that
the resulting testimony relates to a present recollection.
3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 612[01],
at 612-16 (1995). If the writing fails to rekindle the
witness’s memory, the witness cannot be permitted to
testify as to the contents of the writing unless the
writing is otherwise admitted into evidence. 28 C. Wright
& V. Gold, Federal Practice and Procedure: Evidence § 6183,
at 463 (1993).
80 Hawaiʻi at 144, 906 P.2d at 630 (internal quotation marks,
brackets, and ellipses omitted).
The ICA held that the question of whether the officer was
properly allowed to testify about the field sobriety test was
not a question of credibility for the jury to decide, as the
State maintained, but one of admissibility for the judge to
determine pursuant to HRE Rule 104(a), which mandates that
preliminary questions concerning the admissibility of evidence
be determined by the court. See 80 Hawaiʻi at 144-45, 906 P.2d
at 630-31. The ICA further cited to HRE Rule 601, which
provides that “[e]very person is competent to be a witness
except as otherwise provided in the [HRE].” Id. The ICA then
cited to HRE Rule 602, which provides in relevant part:
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Rule 602 Lack of personal knowledge. A witness may not
testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the
witness’ own testimony. . . .
The ICA further noted that the Commentary to HRE Rule 602 (1993)
defines “personal knowledge” of a witness to “mean[] that the
witness perceived the event about which [the witness] testifies
and [the witness] has a present recollection of that
perception.” Commentary to HRE Rule 602 (citations omitted).
Based on its review of the officer’s testimony, the ICA
concluded that the requisite foundation of personal knowledge
based on a presently refreshed memory had not been met and that
under the “right/wrong” standard of review, the trial court had
erred by not striking the officer’s testimony regarding the
field sobriety test. Dibenedetto, 80 Hawaiʻi at 145, 906 P.2d at
631.5
Thus, as indicated by the ICA and the authorities it cited
in Dibenedetto, and as stated in the language of HRE Rule 612,
testimony of a witness is admissible under that rule only when
5
This court cited to Dibenedetto’s analysis of HRE Rule 612 in State v.
Espiritu, 117 Hawaiʻi 127, 137, 176 P.3d 885, 895 (2008). In Espiritu, the
defendant alleged various mistakes in the admission of testimony under HRE
Rule 612, including that, on one occasion, the prosecutor never asked if the
complaining witness’s memory had been refreshed after reviewing the police
report. See Espiritu, 117 Hawaiʻi at 138, 176 P.3d at 896. This court ruled
that, despite this omission, the witness’s testimony “was nearly identical
both before and after viewing the [police] report” and thus the evidence
showed that the witness was not “merely reading from the report.” 117 Hawaiʻi
at 137, 176 P.3d at 895. In this case, however, the requisite foundation
that Officer Kotobavalu was testifying from a refreshed memory after
reviewing his report is not demonstrated by his testimony.
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the writing has actually refreshed the witness’s memory. A
witness must testify based on personal knowledge, which by
definition means the witness perceived an event and has a
present recollection of that perception. See Commentary to HRE
Rule 602. Therefore, after 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.
This conclusion is supported by HRE Rule 104(a), which
provides in relevant part: “(a) Questions of admissibility
generally. Preliminary questions concerning . . . the
admissibility of evidence shall be determined by the court. . . .”
1 Kenneth S. Broun et al., McCormick on Evidence § 9 (7th ed.
2016) (“It is a preliminary question for [the trial judge] under
Rule 104(a) whether the memorandum actually does refresh.”).
Actual refreshment of memory is a preliminary question
concerning the admissibility of testimony under HRE Rule 612,
which the court must determine prior to allowing the witness to
testify pursuant to that rule. Thus, HRE Rule 104(a) also
requires a showing that a witness’s memory has been refreshed
before testimony can be admitted under HRE Rule 612.
In addition, Professor Addison Bowman discusses HRE Rule
612 in his Hawaii Rules of Evidence Manual as follows:
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Refreshing a witness’[s] recollection at trial is an
alternative to leading. . . . When a witness experiences a
memory lapse or omits to mention a detail expected by the
proponent, the witness can be led or refreshed. The
material used to refresh can be anything that awakens a
memory or prods a current awareness of a detail that should
be included in the witness’[s] narrative. See, e.g., State
v. Keohokapu, 127 Hawai[ʻ]i 91, 276 P.3d 660 (2012) (police
report that contained witness’[s] statements); State v.
Espiritu, 117 Hawai[ʻ]i 127, 176 P.3d 885 (2008) (police
report that recited contents of text messages the
complaining witness received from the defendant).
Typically, the refreshing document will be a prior
statement of the witness.
Admissibility of the refreshing material is of no
concern if the technique succeeds because the witness will
be instructed to read the document to herself and then will
be asked if her memory is refreshed. See State v. Lam, 75
Haw. 195, 207 n.10, 857 P.2d 585, 592 n.10 (1993) (authen-
tication of document unnecessary because it “merely serves
to refresh the witness’[s] present memory and is not
evidence”). If she answers “Yes,” then the examination
will proceed in the usual fashion . . . . If, on the other
hand, the effort to refresh fails to stimulate an
independent, present recollection in the witness, testimony
that merely parrots the contents of the document will not
be admitted over a rule 602 objection asserting lack of
personal knowledge. State v. Espiritu, 117 Hawai[ʻ]i 127,
137, 176 P.3d 885, 895 (2008) (dictum). For this
proposition, Espiritu cited State v. Dibenedetto, 80
Hawai[ʻ]i 138, 906 P.2d 624 (App. 1995) (police officer had
his report but no memory of a field sobriety test he had
conducted); compare State v. Ferrer, 95 Hawai[ʻ]i 409, 431-
33, 23 P.3d 744, 766-68 (App. 2001) (officer remembered
administering Intoxilyzer test with result “over.08”
although he needed refreshing about the accused’s “exact
score on the test”). . . .
Addison M. Bowman, Hawaii Rules of Evidence Manual, at 6-82 to
6-83 (2016-2017 ed.) (emphasis added).
Professor Imwinkelried’s text, Evidentiary Foundations, is
also in accord, indicating that “[t]he witness states that
viewing the document . . . refreshes his or her memory” before
the witness then testifies from revived memory. Imwinkelried,
supra, at 466.
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As in Dibenedetto, a review of Officer Kotobalavu’s
testimony regarding Wakamoto’s field sobriety test after the
defense objection renders it unclear whether he was testifying
from a present recollection of what he had perceived, or whether
he was testifying from his memory of what he had read regarding
his report. Proper foundation was not laid for his continued
testimony regarding Wakamoto’s field sobriety test that Officer
Kotobalavu’s recollection had been refreshed because the trial
court did not require that he be asked whether his recollection
had been refreshed after the defense raised the HRE Rule 612
objection.
Therefore, the district court erred by overruling the
defense objection and by admitting Officer Kotobalavu’s
continued testimony without requiring a foundation that Officer
Kotobalavu’s memory had been refreshed after reviewing his
report. The ICA also erred by affirming the district court and
by indicating that no legal authority exists requiring such an
evidentiary foundation.
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B. The error was not harmless beyond a reasonable doubt
The erroneous admission of evidence is not harmless beyond
a reasonable doubt if there is a reasonable possibility that the
error might have contributed to the conviction. See State v.
Subia, 139 Hawaiʻi at 69, 383 P.3d at 1207. In this case, the
district court specifically stated it partly relied on Officer
Kotobalavu’s testimony after his second review of his report
(that because Wakamoto took an extra step, it followed that he
turned the wrong way) as a basis for convicting Wakamoto of
OVUII. Therefore, despite the existence of additional evidence
for the conviction, the evidentiary error cannot be deemed
harmless beyond a reasonable doubt.
V. Conclusion
For the foregoing reasons, we vacate the ICA’s November 22,
2017 Judgment on Appeal entered pursuant to its SDO, as well as
the district court’s Notice of Entry of Judgment and/or Order
and Plea/Judgment, and we remand this case to the district court
for further proceedings consistent with this opinion.
Earle A. Partington, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Justin P. Haspe, DPA
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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