State v. Kelleher

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-FEB-2021
07:51 AM
Dkt. 40 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
TIMOTHY KELLEHER, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTA-18-01270)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Timothy Kelleher (Kelleher) appeals
from the Notice of Entry of Judgment and/or Order and
Plea/Judgment entered on May 25, 2018 (Judgment),1/ and the Notice
of Entry of Judgment and/or Order and Plea/Judgment entered on
April 17, 2019 (Final Judgment),2/ in the District Court of the
First Circuit, Honolulu Division (District Court). Kelleher was
convicted of Operating a vehicle under the influence of an
1/
The Honorable Sherri-Ann Iha presided.
2/
The Honorable Summer Kupau-Odo presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1) (Supp. 2019).3/
Kelleher raises three points of error on appeal,
contending that: (1) the District Court abused its discretion in
allowing Honolulu Police Department Officer Ty Ah Nee (Officer Ah
Nee) to testify as to Kelleher's alleged speed because the State
of Hawai#i (State) failed to lay the requisite foundation for
Officer Ah Nee's testimony; (2) the District Court erred in
denying in part Kelleher's motion to suppress; and (3) without
the improperly admitted evidence, there was no substantial
evidence to support Kelleher's conviction.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Kelleher's points of error as follows:
(1) The Hawai#i Supreme Court has held that to
establish that an officer was properly qualified to operate a
laser speed-reading gun "requires a showing as to both (1) the
training requirements set forth by the manufacturer, and (2) the
3/
HRS § 291E-61(a)(1) 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[.]
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training actually received by the operator of the laser gun."
State v. Apollonio, 130 Hawai#i 353, 362, 311 P.3d 676, 685
(2013).
Citing State v. Rezentes, CAAP-XX-XXXXXXX, 2016 WL
6330390, *1 (Haw. App. Oct. 28, 2016) (SDO), Kelleher argues that
Officer Ah Nee's testimony regarding the manufacturer of the
subject LIDAR speed-reading device was incorrect because the
subject laser device was manufactured by Applied Concepts, not
Stalker; and thus, Officer Ah Nee's testimony lacked the proper
foundation as to the training required by the manufacturer to
operate the device. In Rezentes, this court held that the State
established, through an officer's testimony, that the officer's
"training in the use of the Stalker radar gun met the
requirements indicated by the manufacturer," Applied Concepts.
Id. at *1 (underlined emphasis added). Rezentes involved a radar
gun which was tested by, inter alia, using a tuning fork.
Rezentes, 2016 WL 6330390 at *2. This case involves a LIDAR
laser device; Officer Ah Nee testified, inter alia, as to four
tests used to establish that the device was working properly
(none of which used a tuning fork, as used to calibrate the radar
device at issue in Rezentes). Therefore, Rezentes cannot be the
basis for determining the manufacturer of Officer Ah Nee's LIDAR
laser device in this case.
Here, Officer Ah Nee testified, inter alia, that he was
trained by Steve Hawker, one of the engineers that designed the
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Stalker XLR LIDAR device, a laser device, that Officer Ah Nee
used to measure Kelleher's speed. Officer Ah Nee testified as to
how he was trained by, inter alia, going over the manufacturer's
manual word-by-word. He specifically testified that the manual
was published or approved by the manufacturer, and he knew that
because the manual had the manufacturer's name on it (Stalker),
the company logo, insignia, and copyright information, and that
his training followed the manual. Kelleher points to no
conflicting evidence, and we find none; Kelleher does not
otherwise contend that the actual training received by Officer Ah
Nee in the operation of the laser gun was insufficient. Thus, we
reject Kelleher's argument that the State failed to meet its
foundational burden in this regard. Based upon our review of the
entirety of Officer Ah Nee's testimony, we conclude that the
District Court did not abuse its discretion in allowing Officer
Ah Nee to testify as to Kelleher's speed as measured by the LIDAR
device at issue in this case.
(2) Kelleher argues that the testimony concerning
observations of Kelleher's performance on a field sobriety test
should have been suppressed because he was not advised of his
pre-arrest right to remain silent, as required by State v.
Tsujimura, 140 Hawai#i 299, 400 P.3d 500 (2017), and he was not
advised of his Miranda rights when he was subjected to custodial
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interrogation.4/ Tsujimura is inapplicable to this case because
Kelleher was asked to participate in, and Kelleher agreed to
participate in, the field sobriety test, and the State did not
seek to introduce and use evidence of Kelleher's silence against
him at trial. State v. Uchima, 147 Hawai#i 64, 83, 464 P.3d 852,
871, (2020). We note that the District Court granted in part
Kelleher's motion to suppress, suppressed his other statements,
and only allowed evidence of Kelleher's non-verbal responses,
i.e., Kelleher's physical performance on the field sobriety test.
Kelleher's physical performance on the field sobriety test did
not constitute incriminating statements or result from an
interrogation requiring Miranda warnings. Id. at 84-85, 464 P.3d
at 872-73; see also State v. Wyatt, 67 Haw. 293, 302-03, 687 P.2d
544, 551 (1984). Accordingly, we conclude that the District
Court did not err in denying in part Kelleher's motion to
suppress.
(3) Kelleher contends that, without the above-
referenced improperly admitted evidence, there is insufficient
evidence to convict him of OVUII. As we have rejected Kelleher's
arguments that this evidence was improperly admitted, we conclude
that Kelleher's final point of error is without merit.
4/
See Miranda v. Arizona, 384 U.S. 436 (1966).
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For these reasons, the District Court's May 25, 2018
Judgment and April 17, 2019 Final Judgment are affirmed.
DATED: Honolulu, Hawai#i, February 5, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Alen M. Kaneshiro, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
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