State v. Nakamitsu.

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Electronically Filed
Supreme Court
SCWC-14-0001151
29-JUN-2017
08:11 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
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________________________________________________________________
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
RYAN NAKAMITSU,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-14-0001151
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001151; CASE NO. 1DTA-14-02783)
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
JUNE 29, 2017
OPINION OF THE COURT BY WILSON, J.
Petitioner/Defendant-Appellant Ryan Nakamitsu
(Nakamitsu) was convicted of one count of Operating a Vehicle
Under the Influence of an Intoxicant (OVUII) in violation of
Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(1) and/or § 291E-
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61(a)(3).1 The Intermediate Court of Appeals (ICA) vacated the
conviction for OVUII based on HRS § 291E-61(a)(1), reversed the
conviction for OVUII based on HRS § 291E-61(a)(3), and remanded
for proceedings consistent with its opinion.
In essence, Petitioner Nakamitsu argues that his
conviction under HRS § 291E-61(a)(1) should be reversed rather
than vacated and remanded for a new trial. Four principal
issues are presented on certiorari. The first three issues are
raised by Nakamitsu: (1) whether the ICA gravely erred in
holding that the charge was not fatally defective for failing to
include the statutory definition of the term “alcohol”; (2)
1
Nakamitsu was charged with one count of Operating a Vehicle Under
the Influence of an Intoxicant under the two alternate (and/or) statutory
bases of HRS § 291E-61(a)(1) and HRS § 291E-61(a)(3). Roughly speaking, HRS
§ 291E-61(a)(1) prohibits operating a vehicle while impaired by an
intoxicant, while HRS § 291E-61(a)(3) prohibits operating a vehicle while the
driver’s blood alcohol content exceeds a statutorily-specified level.
Because the two bases can overlap, they are often charged in the
conjunctive/disjunctive. See State v. Codiamat, 131 Hawaiʻi 220, 224, 317
P.3d 664, 668 (2013)(noting that “the preferred method for charging an
offense that may be committed in more than one way is to charge in the
conjunctive/disjunctive —- alleging that the defendant committed the offense
in one way and/or in another way.”).
HRS § 291E-61 (2007) provides in relevant part:
(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; [or]
. . . .
(3) With .08 or more grams of alcohol per two hundred
ten liters of breath[.]
2
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whether the ICA gravely erred in holding that the district court
did not err in denying Nakamitsu’s motion to strike Officer
Desiderio’s testimony; and (3) whether the ICA gravely erred in
holding that there was substantial evidence to support
Nakamitsu’s conviction under HRS § 291E-61(a)(1). We consider
sua sponte a fourth issue, whether the district court’s
admonishment of Nakamitsu for his decision to pursue trial
violated his constitutional rights to due process and against
self-incrimination.
We hold that the ICA did not err concerning the first
and third issues. We find it unnecessary to consider the second
issue as to whether the ICA erred in affirming the district
court’s denial of Nakamitsu’s motion to strike Officer
Desiderio’s testimony. On the fourth issue, we find that the
district court’s admonishment of Nakamitsu may have violated his
constitutional rights to due process and against self-
incrimination. We affirm the judgment of the ICA vacating the
conviction for OVUII in violation of HRS § 291E-61(a)(1),
reversing the conviction for OVUII in violation of HRS § 291E-
61(a)(3), and remanding for a new trial.
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I. BACKGROUND
A. District Court Proceedings
Nakamitsu is an engineer at Pearl Harbor. In June,
2014, the State charged Nakamitsu with one count of Operating a
Vehicle Under the Influence of an Intoxicant as a first time
offender.2
Nakamitsu filed a Motion to Dismiss Count 1 for
Failure to State an Offense.3 He argued that the OVUII charge in
Count 1 was insufficient because it failed to include the
definition of “alcohol” as defined in HRS § 291E-1. The State
opposed the Motion, arguing that the Complaint’s reference to
“alcohol” was consistent with its commonly-understood meaning.
After a hearing, the court denied the Motion.4
1. Direct Examination of Officer Desiderio
At trial, Officer Desiderio testified that he
responded to a vehicular accident on June 1, 2014 around
2
In Count 2, Nakamitsu was charged with Inattention to Driving
under HRS § 291-12. He entered a plea of no contest, and his motion for
deferred acceptance of his plea was granted. In Count 3, Nakamitsu was
charged with Driving Without Motor Vehicle Insurance under HRS §§ 431:10C-
104(a)and 431:10C-117(a). However, Count 3 was not prosecuted after
Nakamitsu provided proof of insurance.
3
Nakamitsu also filed a Motion to Suppress his Blood Alcohol Level
(BAC) result, arguing that Hawaiʻi's implied consent law and the HRS Chapter
291E provisions criminalizing the refusal to submit to BAC testing were
unconstitutional. The district court summarily denied the motion at trial.
4
The Honorable David W. Lo presided.
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4:50 a.m. Upon arriving at the scene, he saw a vehicle on the
side of the road in front of a light post that had fallen to the
ground. A man (later identified as Nakamitsu) walked from the
vehicle and knelt on the side of the road. Nakamitsu told
Officer Desiderio that he had been driving the vehicle, and then
began crying. Officer Desiderio detected the smell of alcohol
on Nakamitsu’s body and breath. Officer Desiderio testified
that Nakamitsu was attempting to balance himself and uttering
something approximating “I’m fucked, I’m fucked.” Officer
Desiderio then conducted a Standardized Field Sobriety Test
(SFST). Nakamitsu exhibited six clues, and failed the
Horizontal Gaze Nystagmus (HGN) portion of the test. According
to Officer Desiderio, during the Walk-and-Turn section of the
test Nakamitsu kept trying to keep his balance.
On direct examination, in regard to the Walk-and-Turn
and One-Leg Stand segments of the test, the State refreshed
Officer Desiderio’s recollection with a copy of his SFST report:
[STATE]: Do you remember what -- any clues exhibited
during the instructional portion of the . . . [Walk and
Turn] test?
[OFFICER DESIDERIO]: Can’t recall it. I have it in
my report that I submitted.
[STATE]: Would anything refresh your recollection?
[OFFICER DESIDERIO]: Yes, my report that I submitted.
. . . .
[STATE]: Officer, is -- you recognize this document?
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[OFFICER DESIDERIO]: Yes, ma’am.
[STATE]: What is this?
[OFFICER DESIDERIO]: This is -- what we use for [sic]
SFST sheet, the standard --
[STATE]: Is this the . . . [S]FST sheet you used that
night?
[OFFICER DESIDERIO]: Yes, ma’am.
[STATE]: Can you refresh your recollection.
[OFFICER DESIDERIO]: Okay.
After a further exchange regarding the Walk-and-Turn
segment of the test, the State then asked Officer Desiderio about
Nakamitsu’s performance on the One-Leg Stand test:
[STATE]: And do you recall what you observed?
[OFFICER DESIDERIO]: Yes. Everything is recorded in
the report I submitted.
[STATE]: All right . . . . [H]ow many clues can be
exhibited? Do you remember?
[OFFICER DESIDERIO]: No, I don’t. I -–
[STATE]: Would you like to --
. . . .
[STATE]: -- refresh your memory --
. . . .
[STATE]: -- with your report?
[OFFICER DESIDERIO]: -- yes.
. . . .
[STATE]: Do you independently remember this, once you
looked at your report? Do you remember how [Nakamitsu] did
on the test?
[OFFICER DESIDERIO]: Yeah, somewhat remember.
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[STATE]: Okay. And do you remember what you observed
about how he did the test?
[OFFICER DESIDERIO]: Basically, he hops. I -- I do
remember [him] putting his foot down at 19 seconds and
[sic] kind of swayed sideways. And then –- yeah, he wasn’t
able to keep his balance during that time.
. . . .
[STATE]: Officer, how many clues did he exhibit on
the one-leg stand, do you remember?
[OFFICER DESIDERIO]: At least -- I would say four or
more.
2. Cross-Examination of Officer Desiderio
During cross-examination, Officer Desiderio described
the National Highway Traffic Safety Administration (NHTSA)
standards for administering and grading the SFST. He testified
that, in order to be valid, the SFST must be administered and
graded in accordance with the NHTSA. Nakamitsu’s counsel
proceeded to ask Officer Desiderio about Nakamitsu’s performance
on the SFST:
[NAKAMITSU’S COUNSEL]: Now, on Wednesday you
testified that [Nakamitsu] took several more steps than
instructed on the walk-and-turn. But isn’t it true that he
only took one extra step?
[OFFICER DESIDERIO]: Whatever it is in my report, that
I wrote in there, that’s basically what it --
[NAKAMITSU’S COUNSEL]: If I showed you a copy of your
report would . . . it refresh your recollection.
[OFFICER DESIDERIO]: Yes.
Yes. So on the first nine step [sic], took an
additional one. And I believe that’s the reason why I –- I
did put that made the turn, not as instructed.
[NAKAMITSU’S COUNSEL]: Okay. But not several extra
steps, just one; correct?
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[OFFICER DESIDERIO]: I believe so.
Officer Desiderio continued to testify without the aid
of his report that while Nakamitsu performed the Walk-and-Turn
test, the officer was facing the sidewalk, standing mid-way
between the starting and turn points of the imaginary line used
for the test. When asked if Nakamitsu walked off the line
during the first set of steps, Officer Desiderio said he would
need his report to refresh his memory. Nakamitsu’s counsel then
asked Officer Desiderio if he had any independent recollection
of the SFST, or if his testimony was solely based on his reading
the SFST report:
[NAKAMITSU’S COUNSEL]: Okay. Now, when the prosecutor
was asking you questions and when I’m asking you questions
. . . you need to refer to your report to testify about what
your recollection is of -- of this particular field sobriety
test; correct?
[OFFICER DESIDERIO]: Yes.
[NAKAMITSU’S COUNSEL]: Do you have any independent
recollection of . . . Nakamitsu’s performance on the test?
Or is it, basically, just reading from your report?
[OFFICER DESIDERIO]: I do have independent
recollection, not necessarily of the -- when he was taking
the test.
[NAKAMITSU’S COUNSEL]: Okay. So you remember the
incident?
[OFFICER DESIDERIO]: Yes.
[NAKAMITSU’S COUNSEL]: You remember Mr. Nakamitsu?
[OFFICER DESIDERIO]: Yes.
[NAKAMITSU’S COUNSEL]: You remember administering the
test to him?
[OFFICER DESIDERIO]: Yes.
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[NAKAMITSU’S COUNSEL]: But the details of the results
you don’t remember?
[OFFICER DESIDERIO]: Whatever I wrote in there --
because while I was testing, okay, I’ll be, like, making
tick marks, either when I was (indiscernible) if I have a
glove or right on my hand.
. . . .
[NAKAMITSU’S COUNSEL]: Without looking at your writing
or your notes or the -- your report, you’re not able to
testify about his performance on the field sobriety test?
[OFFICER DESIDERIO]: Well, I would need my report.
Nakamitsu’s counsel moved to strike Officer
Desiderio’s testimony describing Nakamitsu’s SFST on the grounds
that the officer could not testify without his report. The
State responded that Officer Desiderio could recall details
surrounding the SFST, but could not be expected to remember all
details about Nakamitsu’s performance without the aid of his
report. The district court denied Nakamitsu’s motion.
3. Testimony of Officer Tabanera
Officer Tabanera testified that on June 1, 2014, at
approximately 4:15 a.m., he arrived at the scene of the accident
and observed that Nakamitsu’s eyes were red and glassy. Officer
Tabanera also testified that Nakamitsu smelled like alcohol.
Officer Tabanera investigated the accident and observed
Nakamitsu’s vehicle resting at the base of a street light pole,
and the pole dislodged and laying on the ground. The front
bumper and engine area of Nakamitsu’s vehicle were severely
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damaged. Officer Tabanera did not see any marks on the road
that would have resulted from use of a vehicle’s brakes, and he
did not observe any other vehicles or obstructions on the road.
4. District Court Ruling and Sentencing
The court found Nakamitsu guilty as charged under both
HRS § 291E-61(a)(1) and HRS § 291E-61(a)(3), deciding that
Officer Desiderio’s testimony was unnecessary for the
conviction:
THE COURT: Court finds the evidence beyond a
reasonable doubt to find [Nakamitsu] guilty on both the
291E-61(a)(1) as well as the [291E]-61(a)(3) charge. And
the court finds [Nakamitsu] guilty based on what happened.
And Court also finds that evidence concerning the
[SFST], while there is some questions as to the weight or
. . . the manner in which Officer Desiderio gave his
testimony that it was not even necessary to convict the
defendant, find the defendant guilty on the (a)(1) charge.
After issuing the court ruling, the district judge
asked Nakamitsu for any final words before imposing the
sentence. Nakamitsu expressed remorse for his actions affecting
his job and family, and apologized to the court. The judge then
heard from the State, which asked for a $500.00 fine and minimum
sentencing. Nakamitsu’s counsel agreed to the $500.00 fine,
acknowledging his client’s remorse. The judge accepted
Nakamitsu’s apology, but raised his concern that Nakamitsu did
not readily accept responsibility at the outset of trial:
[THE COURT]: I am totally convinced he’s very
remorseful. I’m totally convinced that it’s not going to
happen again. I really find that Mr. Nakamitsu was
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remorseful at the scene of the accident. But what bothers
the Court the most is that acceptance of responsibility was
not readily done.
[COUNSEL FOR NAKAMITSU]: And, Your Honor, there are
cases -- there are cases where we -- people are not willing
to accept responsibility because they are just not those
types of people. In this case there are two legal issues
that I explained to Mr. Nakamitsu and explained the issues
on appeal. And it’s not because he didn’t want to accept
responsibility; it was because these issues are out there
and we would like to appeal.
. . . .
[THE COURT]: I mean, does he have to hit a person on
the sidewalk for you folks to accept responsibility? I
mean, that’s -- the conduct is no different. That’s what I
find so bothersome.
[COUNSEL FOR NAKAMITSU]: I understand.
[THE COURT]: And you were warned about this. You
guys wanted to play with fire, and somebody’s going to get
burned.
. . . .
[THE COURT]: What is it going to take to accept
responsibility? You know, after Wednesday’s testimony -- I
didn’t want to pre-judge this case, but just on what
happened, this is a person that should be in jail. So you
guys want to play with fire, you suffer the consequences.
Someone’s going to get burned. All I can say is, best of
luck on appeal. But I have to do what I have to do.
[COUNSEL FOR NAKAMITSU]: Yes, Your Honor.
[THE COURT]: You’re not the type I think needs to go
to jail, Mr. Nakamitsu. But what really bothers me is your
-- the four of you discussing that you want to roll the
dice.
You know, somebody on your behalf came to court on
June 30th, within 30 days after this incident. If you’re
really remorseful, that’s when responsibility should have
been taken. I don’t fault you. You hired an attorney.
You hired a good attorney, that advised you. I think all
of you made the wrong decision. That’s what I find
bothersome.
[COUNSEL FOR NAKAMITSU]: And, Your Honor, I -- I -–
I would ask that, you know, maybe my advice wasn’t --
wasn’t the good advice; but I would -- I would ask you to
not take that out against my client. I -- I understand
that ultimately it’s his choice. But he hires an attorney
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for advice. If you’re going to take it out against
somebody, I ask that you take it out against me and -- not
my client.
[THE COURT]: Well, I am.
[COUNSEL FOR NAKAMITSU]: Yeah.
[THE COURT]: And, you know, I don’t want to take it
out against any -- any -- any -- any -- any defendant
personally. But, Mr. [Counsel for Nakamitsu], I’ve been
talking to you for over a year now -- and I’m going to put
this on the record.
[COUNSEL FOR NAKAMITSU]: Okay.
[THE COURT]: I admire you as an attorney, but you
have a history of all take and no give. I don’t -- I don’t
see you accepting responsibility when you should.
You were warned about this. I told you on Wednesday.
I asked you, you want to roll the dice on this one? You
say, let me talk to my client. All right, talk to him; and
that was his decision. But you guys want to play with
fire, you’re going to get burned, guarantee.
Status of the license?
. . . .
[THE COURT]: I’m revoking it for one year,
forthwith. 750 dollar fine. Undergo substance abuse
assessment and classes. 107 DE. 30 CVCF. 25 neurotrauma.
100 DDRA.
You know, my thoughts were to – to give you 1,000
dollar fine and – and make you perform 72 hours of
community service, as well. I’ll back off on that. All
right. That’s all.
B. ICA Decision
In a memorandum opinion, the ICA affirmed the district
court’s rulings regarding the issues raised by Nakamitsu in his
appeal. First, the ICA explained that in State v. Turping, 136
Hawaiʻi 333, 361 P.3d 1236 (App. 2015), the court rejected the
argument that a charge was deficient for failing to include the
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definition of alcohol. The ICA also noted its previous
rejection of the argument that alcohol, as defined by HRS §
291E-1, is limited to distilled forms in State v. Tsujimura, 137
Hawaiʻi 117, 120, 366 P.3d 173, 176 (App. 2016), as corrected
(May 2, 2016). The ICA in Tsujimura read the plain language of
HRS § 291E-1’s definition of “alcohol” as specifically including
ethyl alcohol. Because ethyl alcohol is the intoxicating agent
in beer and wine, the Tsujimura court reasoned that the
statutory definition includes both beer and wine, as well as
distilled liquors. Id. at 120, 366 P.3d at 176.5
Second, regarding the admissibility of Officer
Desiderio’s testimony, the ICA concluded that “although Officer
Desiderio’s recollection of Nakamitsu’s performance on the SFST
had to be repeatedly refreshed, his testimony was not based on
his memory of the report only” because Officer Desiderio
remembered significant details about the incident prior to
refreshing his memory with the report, and did not state that
his testimony was based only on reading the report.
Third, the ICA examined the record of the two
colloquies required in cases where a defendant chooses not to
5
We recently upheld the ICA’s holding in Tsujimura that “alcohol”
is not limited to alcohol produced through distillation, but we vacated the
judgment and remanded the case for a new trial on constitutional grounds.
State v. Tsujimura, Slip Op. at 15-19, 52, 2017 WL 2361154, at *6-7, *18 (May
31, 2017).
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testify: (1) the “prior-to-trial colloquy,” and (2) the
“ultimate colloquy.” Although Nakamitsu had not raised the
issue, the ICA reviewed it for plain error. In light of
Tachibana v. State, 79 Hawaiʻi 226, 236, 900 P.2d 1293, 1303
(1995), the ICA held that the ultimate colloquy between the
district court and Nakamitsu was deficient. Because the ICA
could not say that the deficiency was harmless beyond a
reasonable doubt, it vacated Nakamitsu’s conviction for OVUII
under HRS § 291E-61(a)(1).
Fourth, having determined that the ultimate colloquy
was deficient and that it was not harmless error, the ICA
conducted a review of the sufficiency of the evidence to
convict. See State v. Davis, 133 Hawaiʻi 102, 120, 324 P.3d 912,
930 (2014) (given the constitutional protection against double
jeopardy, as well as policy reasons, “a reviewing court is
required under article I, section 10 of the Hawaiʻi Constitution
to address a defendant’s express claim of insufficiency of the
evidence prior to remanding for a new trial based on a defective
charge.”) The ICA found sufficient evidence to convict
Nakamitsu of OVUII in violation of HRS § 291E-61(a)(1). It
based this conclusion on Officer Desiderio’s testimony that
Nakamitsu walked away from a vehicle on the side of the road
that was in front of a fallen light post, that he smelled of
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alcohol, tried to balance himself, knelt down, and volunteered
expletives lamenting the seriousness of his actions, and that he
had failed the SFST. In reaching its holding, the ICA also
considered Officer Tabanera’s testimony that Nakamitsu had red
and glassy eyes, that the vehicle’s front bumper and engine were
severely damaged, and that there were no marks on the road
suggesting the vehicle’s brakes were applied.
Fifth, the ICA held that the district court erred in
denying Nakamitsu’s motion in limine to suppress his blood
alcohol content measurement. Without the inadmissible BAC
evidence, there was insufficient evidence to support the
conviction for OVUII under HRS § 291E-61(a)(3). Accordingly,
the ICA reversed Nakamitsu’s conviction under HRS § 291E-
61(a)(3).6
II. STANDARDS OF REVIEW
A. Statutory Interpretation
“When construing a statute, this court’s foremost
obligation is to ascertain and give effect to the intention of
the legislature, which is to be obtained primarily from the
language contained in the statute itself. In addition, we must
read statutory language in the context of the entire statute and
6
Nakamitsu does not appeal the ICA’s favorable holdings regarding
the deficiency of the ultimate colloquy and the insufficiency of the evidence
to support a conviction under HRS § 291E-61(a)(3).
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construe it in a manner consistent with its purpose.” State v.
McKnight, 131 Hawaiʻi 379, 388, 319 P.3d 298, 307 (2013)
(citations, internal quotation marks, and brackets omitted).
B. Sufficiency of the Evidence
“[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 . . . . 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.” State v. Richie, 88 Hawaiʻi 19, 33, 960
P.2d 1227, 1241 (1998)(citation omitted).
III. DISCUSSION
A. The OVUII Charge Was Not Defective for Failing to Define
“Alcohol”
On appeal, Nakamitsu argues the ICA gravely erred in
holding that the OVUII charge was not fatally defective for
failing to define “alcohol.” According to Nakamitsu, the
definition of “alcohol” in HRS § 291E-17 is limited to the
7
For purposes of the OVUII offense at issue here, “alcohol” is
defined as follows:
Alcohol means the product of distillation of any fermented
liquid, regardless of whether rectified, whatever may be
the origin thereof, and includes ethyl alcohol, lower
aliphatic alcohol, and phenol as well as synthetic ethyl
alcohol, but not denatured or other alcohol that is
(continued. . .)
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products of distillation, and does not include beer or wine. He
argues that a plain reading of the definition shows that for
purposes of the statute, “alcohol” only encompasses “products of
distillation” —- i.e., liquor. Thus, he contends the OVUII
charge did not adequately inform him of the nature and cause of
the accusation against him because it failed to include the
definition of alcohol.
We recently addressed this issue in State v.
Tsujimura, Slip Op. at 15-19, 2017 WL 2361154, at *6-7 (May 31,
2017). Like Nakamitsu, the defendant in Tsujimura argued that
the definition of “alcohol” in HRS § 291E-1 is limited to the
products of distillation. After carefully analyzing the
statute, we concluded that the meaning of “alcohol” in that
statute “is inclusive of ethyl alcohol, also commonly known as
ethanol, which ‘is the intoxicating agent in beer, wine, and
other fermented and distilled liquors.’ Accordingly, the
statutory definition of ‘alcohol’ includes beer, wine, and other
fermented liquors because these substances contain ethanol.”
Tsujimura, Slip Op. at 18, 2017 WL 2361154, at *7 (citation
(. . . continued)
considered not potable under the customs laws of the United
States.
HRS § 291E-1 (2007). In 2016, the legislature simplified and
clarified the definition. 2016 Haw. Sess. Laws, Act 231, § 59
(“‘Alcohol’ means ethanol or any substance containing ethanol.”)
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omitted, footnotes omitted). Given our recent holding in
Tsujimura, we conclude that the ICA properly determined that
Nakamitsu’s charge was not fatally defective for failing to
include the statutory definition of “alcohol.”
B. Substantial Evidence Supports Nakamitsu’s Conviction Under
HRS § 291E-61(a)(1)
In reviewing for sufficiency of the evidence to
support a conviction, we consider evidence admitted at trial “in
the strongest light for the prosecution . . . . 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.” Richie, 88 Hawaiʻi at 33, 960
P.2d at 1241 (citation omitted); Davis, 133 Hawaiʻi at 116, 324
P.3d 926 (noting that even where the appellate court finds trial
error, “challenges to the sufficiency of the evidence must
always be decided on appeal” or retrial would raise double
jeopardy concerns (citation omitted)). Nakamitsu argues that
without Officer Desiderio’s testimony regarding the SFST, and
given the absence of any direct evidence establishing how the
accident occurred, there was insufficient evidence to convict
him of OVUII.
In addition to testifying regarding the SFST, Officer
Desiderio also testified that he observed the vehicle on the
side of the road in front of a light post that had fallen, and
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that Nakamitsu walked away from the vehicle, had some difficulty
keeping his balance, knelt down, cried, admitted he was the
driver of the vehicle, and smelled of alcohol. His speech was
slurred and his face was flushed. In addition, Officer Tabanera
described Nakamitsu as having red and glassy eyes and emitting
the smell of an intoxicant. Officer Tabanera testified that the
vehicle had come to rest on top of the streetlight post, and
that the vehicle’s front bumper and engine area were severely
damaged. He also testified that there were no marks on the
ground indicating the brakes had been applied, and that there
were no other obstructions on the roadway.
Considering the testimony of the two officers in the
most favorable light for the prosecution, we conclude that —-
even absent the testimony of Officer Desiderio regarding
Nakamitsu’s performance on the SFST —- there was substantial
evidence that Nakamitsu operated his vehicle under the influence
of alcohol in violation of HRS § 291E-61(a)(1). Accordingly, we
find it unnecessary to consider whether Officer Desiderio’s
recollection was refreshed when he testified about Nakamitsu’s
performance on the SFST.
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C. The District Court’s Admonishment of Nakamitsu for His
Decision to Pursue Trial May Have Violated His
Constitutional Rights to Due Process and Against Self-
incrimination
At sentencing, the district court judge made comments
to Nakamitsu and his counsel regarding Nakamitsu’s decision to
proceed with trial. Before discussing those comments, we note
that the ICA remanded for a new trial based on the deficiency of
the ultimate colloquy. While we affirm the ICA’s decision, we
nonetheless address this issue in order to provide guidance
regarding a court’s reliance on a defendant’s refusal to admit
guilt in imposing a sentence. See Chun v. Bd. of Trustees of
Employees’ Ret. Sys. of State of Hawaii, 92 Hawaiʻi 432, 434–35,
992 P.2d 127, 129–30 (2000)(noting that although the court’s
holding on one point “is outcome-dispositive of the present
appeal,” the court would address an additional issue “in order
to provide guidance to the parties and the circuit court on
remand”).
Due process, as guaranteed under article I, section 5,
of the Hawaiʻi Constitution,8 requires that a defendant be
sentenced by an impartial judge. Peters v. Jamieson, 48 Haw.
247, 255, 397 P.2d 575, 582 (1964); State v. Silva, 78 Hawaiʻi
8
The Hawaiʻi Constitution provides, in relevant part, “No person
shall be deprived of life, liberty or property without due process of law . .
. .” Haw. Const. art. I, § 5.
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115, 118, 890 P.2d 702, 705 (1995), abrogated on other grounds
by Tachibana v. State, 79 Hawaiʻi 226, 900 P.2d 1293 (1995). A
judge must remain impartial during trial, never “assum[ing] the
role of an advocate for either party.” State v. Schutter, 60
Haw. 221, 222, 588 P.2d 428, 429 (1978). If a judge succumbs to
partiality, the resulting sentence must be set aside. Territory
v. Van Culin, 36 Haw. 153, 162 (1942).
During sentencing, a judge may consider a defendant’s
guilty plea, indications of remorse, and commitment to
rehabilitation. State v. Mata, 71 Haw. 319, 326, 789 P.2d 1122,
1126 (1990). However, a judge may not “induce a plea of guilty
by hinting at more lenient sentencing without violating . . . a
defendant’s constitutional rights.” Id. Nor may a court “infer
a lack of remorse from a criminal defendant’s refusal to admit
guilt.” State v. Kamanaʻo, 103 Hawaiʻi 315, 321, 82 P.3d 401,
407 (2003), as corrected (Dec. 17, 2003). In other words, while
lack of remorse legitimately may be considered as a factor in
sentencing, a court may never cross the line into attempting “to
compel an admission of guilt or punish the defendant for
maintaining his innocence.” Kamanaʻo, 103 Hawaiʻi at 321, 82
P.3d at 407 (citation omitted). Such an attempt would raise due
process questions concerning the court’s impartiality. It would
also violate the defendant’s right against self-incrimination.
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See id. at 320-321, 82 P.3d at 406-407 (“Although most commonly
reviewed in the context of the adjudicatory phase of a trial
proceeding, the privilege against self-incrimination applies
with equal force during sentencing.”).
In Kamanaʻo, this court adopted a three-factor test
from the Michigan Supreme Court to determine whether the
sentencing court erroneously relied on a defendant’s refusal to
admit guilt in imposing a sentence. Id. at 323, 82 P.3d at 409.
The factors we considered were (1) the defendant’s maintenance
of innocence after the conviction, (2) the judge’s attempt to
get the defendant to admit guilt, and (3) the appearance that,
had the defendant affirmatively admitted guilt, his sentence
would not have been so severe. Id. We explained that “if there
is an indication of the three factors, then the sentence was
likely to have been improperly influenced by the defendant’s
persistence in his innocence.” Id. (quoting People v. Wesley,
411 N.W.2d 159, 162 (Mich. 1987)).
Applying these factors to Nakamitsu’s case, we note
that the district court clearly exhibited frustration with
Nakamitsu’s decision to maintain his innocence and assert his
right to trial. The court stated that Nakamitsu’s expression of
remorse at sentencing was questionable because his counsel did
not take responsibility for the accident at the first court
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date, and “[i]f you’re really remorseful, that’s when
responsibility should have been taken.” The court unequivocally
identified Nakamitsu’s decision not to take responsibility as
“the wrong decision.” Nakamitsu was told his decision to
proceed to trial rather than plead guilty constituted a decision
to “play with fire” for which “you’re going to get burned”:
You were warned about this. I told you on Wednesday. I
asked you, you want to roll the dice on this one? You say,
let me talk to my client. All right, talk to him; and that
was his decision. But you guys want to play with fire,
you’re going to get burned, guarantee [sic].
Based on this record, it is reasonable to infer that
the sentence was “likely to have been improperly influenced by
the defendant’s persistence in his innocence.” Kamanaʻo, 103
Hawaiʻi at 323, 82 P.3d at 409 (quoting People v. Wesley, 411
N.W.2d 159, 162 (Mich. 1987). If the district court erroneously
relied on Nakamitsu’s refusal to admit guilt in imposing its
sentence, that reliance would have violated Nakamitsu’s
constitutional right to due process and his right against self-
incrimination. See Bordenkircher v. Hayes, 434 U.S. 357, 363
(1978) (“To punish a person because he has done what the law
plainly allows him to do is a due process violation of the most
basic sort” (citation omitted)); Kamanaʻo, 103 Hawaiʻi at 320, 82
P.3d at 406-407. It is not necessary for us to resolve the
question of improper influence in this case, as we affirm the
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ICA’s judgment vacating and remanding for a new trial on another
ground. Nonetheless, we stress that, under article I, section 5
of the Hawaiʻi Constitution, a sentencing court may not rely on a
defendant’s persistence in maintaining his or her innocence in
imposing a sentence.
IV. CONCLUSION
The ICA reversed Nakamitsu’s conviction for OVUII in
violation of HRS § 291E-61(a)(3), vacated his conviction for
OVUII in violation of HRS § 291E-61(a)(1) based on the
deficiency of the ultimate colloquy, and remanded for a new
trial. For the reasons detailed above, we affirm the ICA’s
February 25, 2016 judgment on appeal.
Alen M. Kaneshiro for /s/ Mark E. Recktenwald
Petitioner/Defendant-
Appellant /s/ Paula A. Nakayama
Keith M. Kaneshiro /s/ Sabrina S. McKenna
Sonja P. McCullen for
Respondent/Plaintiff- /s/ Richard W. Pollack
Appellee
/s/ Michael D. Wilson
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