State v. Manion. ( 2022 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
03-JUN-2022
09:42 AM
Dkt. 19 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAI‘I,
Respondent/Plaintiff-Appellant,
vs.
DANIEL IRVING JAMES MANION,
Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-19-00266)
JUNE 3, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ., WITH
EDDINS, J., CONCURRING SEPARATELY, WITH WHOM McKENNA, J., JOINS,
AND WILSON, J., DISSENTING
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
When evidence is obtained against a criminal defendant
in contravention of constitutional protections, such as when
police subject a suspect to custodial interrogation without
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first giving Miranda 1 warnings as required by article I, section
10 of the Hawai‘i Constitution, that evidence must be suppressed.
Evidence obtained after the illegality, acquired because of
officers’ exploitation of that illegality, must likewise be
suppressed, as such evidence is fruit of the poisonous tree.
Here, defendant Daniel Irving James Manion was subject
to custodial interrogation during a roadside investigation for
operating a vehicle under the influence of an intoxicant
(OVUII). But the evidence gathered after that illegality –
specifically, his performance on the standardized field sobriety
test (SFST) – was neither testimonial, 2 nor the fruit of the
poisonous tree. The police did not exploit the illegal
interrogation because the interrogation did not lead to the
discovery of the SFST evidence; the investigation had already
been directed to the SFST before any illegality.
Manion’s performance on the SFST was accordingly
admissible despite the absence of Miranda warnings preceding the
test.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 We decline to revisit our holding in State v. Uchima, 147 Hawai‘i
64, 85, 464 P.3d 852, 873 (2020), that a person’s performance on the SFST is
not testimonial.
2
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II. BACKGROUND
A. District Court Proceedings
Manion was arrested in Hawai‘i Kai in the early hours
of January 4, 2019, after a resident of the neighborhood heard a
car crash into a parked vehicle and called the Honolulu Police
Department (HPD). The police arrived to find Manion in the
driver’s seat of a damaged car, from which a fluid trail led to
the damaged parked vehicle. After initial inquiry into whether
Manion was hurt, the officer came to suspect he had been driving
while intoxicated, administered the SFST on Manion, and arrested
him.
Manion was charged with OVUII in violation of Hawai‘i
Revised Statutes (HRS) § 291E-61(a)(1) (2020) 3 in the District
Court of the First Circuit. 4 Manion moved to suppress any
statements he made during the encounter with police that led to
his arrest for lack of Miranda warnings. The district court
held a hearing on the motion in which three HPD officers
involved in the investigation, along with the Hawai‘i Kai
3 HRS § 291E-61(a)(1) provides:
(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[.]
4 The Honorable Summer M. M. Kupau-Odo presided.
3
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resident who heard the crash, testified as to the following
facts (as found by the district court in its written order):
1. On January 4, 2019, at approximately 4:40 a.m.,
while patrolling the Hawai‘i Kai area, [HPD] Officer Corey
Morgan (“Officer Morgan”) responded to a report of a motor
vehicle collision at Kealahou Street and K[ī]p[ū]kai Place.
While other officers went to locate the vehicle that
reportedly had been struck, Officer Morgan went to locate
the “unit 1” vehicle that reportedly caused the crash,
which the caller said might be on K[ī]p[ū]kai Place.
2. On K[ī]p[ū]kai Place, Officer Morgan found a white
Hyundai with extensive and severe front-end damage.
Defendant was the lone occupant of the Hyundai and was
seated in the driver’s seat. Officer Morgan observed a
fluid trail from Defendant’s Hyundai leading to the parked
vehicle that was struck on Kealahou Street less than two
blocks away.
3. Officer Morgan approached Defendant and asked if
he was okay, if he was injured, if he needed an ambulance,
and where was he coming from. This initial exchange was
brief – lasting a few seconds - as Officer Morgan tried to
determine if Defendant needed medical attention. Defendant
responded that he was okay. He also explained that after a
“rough day,” he had gone to [Sandy Beach, also known as
Sandy’s,] and drank a “40” and was heading home. Defendant
further explained that he was texting and that is what
caused the accident, not his prior drinking.
4. During this brief encounter, Officer Morgan
observed Defendant to have red and watery eyes and a strong
odor of an alcoholic beverage coming from his breath.
5. Believing, upon observing the indicia of alcohol,
that he had probable cause to arrest Defendant for [OVUII],
Officer Morgan asked Defendant if he would be willing to
participate in a [SFST]. Defendant agreed and stepped
outside of his vehicle. Defendant was not free to leave.
6. Officer Morgan would not have administered the
SFST without first asking Defendant if he agreed to
participate in the SFST and receiving Defendant’s “yes”
answer.
7. Prior to administering the SFST, Officer Morgan
asked Defendant questions referred to as the Medical Rule
Out (“MRO”) questions, including whether Defendant was
taking any medications or whether he was under the care of
a doctor or dentist. Officer Morgan asked the questions to
rule out causes, other than alcohol, that could affect
Defendant’s performance on the SFST. Defendant answered
“no” to the MRO questions.
4
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8. Officer Morgan would not have administered the
SFST without first asking the MRO questions.
9. The SFST consists of three tests that are
administered in a particular order - Horizontal Gaze
Nystagmus (“HGN”) first, Walk and Turn (“W&T”) second, and
One Leg Stand (“OLS”) third.
10. Prior to beginning the tests, Officer Morgan told
Defendant he would be judged on how well he follows the
instructions for each of the three tests. Before
administering each of the three tests, Officer Morgan
instructed Defendant on how to perform the test. Each time
after instructing Defendant, Officer Morgan asked Defendant
if he understood the instructions and whether he had any
questions. For each of the three tests, Defendant
indicated he understood the instructions and he had no
questions.
11. Officer Morgan would not have administered each
of the three tests if he had not received Defendant’s
responses that he understood the instructions for the tests
and had no questions.
12. After Officer Morgan obtained Defendant’s
agreement to participate in the SFST, Defendant’s responses
to the MRO questions, and Defendant’s affirmative responses
that he understood the instructions for each of the three
tests, Officer Morgan had Defendant perform the HGN, W&T,
and OLS.
13. Following the SFST, HPD Officer Landon Miyamura
(“Officer Miyamura”) offered Defendant the Preliminary
Alcohol Screening and then arrested Defendant for OVUII.
14. At the main station, Officer Miyamura
administered the intoxilyzer test to Defendant. Upon
completion of the test, Officer Miyamura showed Defendant
the print-out from the intoxilyzer, pointed out Defendant’s
breath-test result, and stated, “This is your result.”
Defendant responded: “That’s impossible, I only had one
‘40’ and two fireball shots in three hours.”
15. At no point in time did either officer tell
Defendant he had the right to remain silent and anything he
said could be used against him. Defendant was never
advised of any of his Miranda rights.
The district court granted the motion to suppress,
concluding that Manion was subjected to custodial interrogation
without Miranda warnings. The court first determined that
5
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Manion was not in custody during the initial exchange with
Officer Morgan, and accordingly, Manion’s statements “admitting
to drinking a ‘40’ at Sandy’s and then explaining that his
texting, as opposed to drinking, caused the accident” were
admissible. However, the district court concluded Manion was in
custody after that initial exchange, and that he was subjected
to custodial interrogation when Officer Morgan (1) asked Manion
if he would be willing to participate in the SFST, (2) asked him
the medical rule-out questions, and (3) asked him whether he
understood the SFST instructions or had any questions about the
tests. As a result, the district court concluded that Manion’s
“performance on the SFST is inadmissible fruit of the poisonous
tree.” 5
B. Intermediate Court of Appeals (ICA) Proceedings
The State appealed, and the ICA affirmed in part and
vacated in part in a memorandum opinion. As relevant here, the
ICA concluded that Manion was in custody based on the State’s
concession at the motion to suppress hearing. Namely, “that
Officer Morgan had probable cause to arrest Manion for OVUII
after their initial exchange and before Officer Morgan asked
5 The district court also suppressed Manion’s statements after the
breath test (“That’s impossible, I only had one ‘40’ and two fireball shots
in three hours”) as the product of a separate violation (showing Manion the
intoxilyzer results after his arrest without Miranda warnings). The ICA
affirmed this conclusion, which is not at issue here.
6
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Manion if he would participate in the SFST.” 6 The ICA next
determined that “the defendant’s performance on the [S]FST did
not constitute an interrogation requiring Miranda warnings”
pursuant to our decision in Uchima, 147 Hawai‘i at 84-85, 464
P.3d at 872-73, in which we held that the SFST was
nontestimonial. Likewise, the ICA relied on Uchima to hold that
“[a]sking Manion whether he was willing to participate in the
SFST, whether he understood the instructions to the SFST, and
whether he had any questions did not implicate his right to
self-incrimination and did not constitute interrogation[.]”
However, the ICA followed its published opinion in
State v. Sagapolutele-Silva, 147 Hawai‘i 92, 101-03, 464 P.3d
880, 889-91 (App. 2020), and held that the medical rule-out
questions were interrogation. The ICA did not address the
argument that the SFST was the fruit of the medical rule-out
questions.
C. Supreme Court Proceedings
Both the State and Manion filed applications for writ
of certiorari seeking review of the ICA’s memorandum opinion.
6 The State’s application for writ of certiorari (which we rejected
in any event) did not contest the custody holding and indeed explicitly
conceded it. For purposes of this opinion, therefore, Manion was in custody
at all relevant times.
7
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We rejected the State’s application and accepted Manion’s. 7
Manion asks this court to consider whether the ICA erred by
“failing to suppress all evidence and statements obtained after
the Medical Rule-Out [] questions as the ‘fruit of the poisonous
tree[.]’” He also urges us to revisit our recent holding in
Uchima, 147 Hawai‘i at 84-85, 464 P.3d at 872-73, that “the SFST
does not seek ‘communications’ or ‘testimony,’” arguing that
Uchima’s reliance on State v. Wyatt, 67 Haw. 293, 687 P.2d 544(1984), was misplaced because the SFST has changed since Wyatt
was decided.
III. STANDARD OF REVIEW
“We review questions of constitutional law under the
‘right/wrong’ standard.” State v. Jenkins, 93 Hawai‘i 87,
100, 997 P.2d 13, 26 (2000) (citing State v. Toyomura, 80
Hawai‘i 8, 15, 904 P.2d 893, 900 (1995)). Accordingly, “we
review the circuit court’s ruling on a motion to suppress
de novo to determine whether the ruling was ‘right’ or
‘wrong.’” State v. Kauhi, 86 Hawai‘i 195, 197, 948 P.2d
1036, 1038 (1997) (citing State v. Navas, 81 Hawai‘i 113,
123, 913 P.2d 39, 49 (1996)).
State v. Lee, 149 Hawai‘i 45, 49, 481 P.3d 52, 56 (2021)
(brackets omitted).
7 Because we rejected the State’s application for writ of
certiorari, which challenged the holding that the medical rule-out questions
were interrogation, the question of whether there was an “illegality” at all
is not before us. Nevertheless, the holding that the medical rule-out
questions were interrogation was correct, as we explained in State v.
Skapinok, SCWC-XX-XXXXXXX (Haw. 2022).
8
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IV. DISCUSSION
The exclusionary rule is “a judicially created remedy
designed to safeguard against future violations of
[constitutional] rights.” Arizona v. Evans, 514 U.S. 1, 10
(1995). “The Hawai‘i exclusionary rule serves the dual purposes
‘of deterring governmental officials from circumventing the
protections afforded by the Hawai‘i Constitution’ and of
‘protecting the privacy rights of our citizens.’” Lee, 149
Hawai‘i at 49, 481 P.3d at 56 (brackets omitted) (quoting State
v. Lopez, 78 Hawai‘i 433, 446, 896 P.2d 889, 902 (1995)).
Accordingly, when evidence is obtained “as a result of the
exploitation of a previous illegal act of the police,” it, too,
must be suppressed as “the fruit of the poisonous tree,” in
order to ensure adequate deterrence of police actions that
violate the constitution. Id.A. The SFST Was Not the Fruit of the Illegality
We first address whether the evidence obtained after
the illegality – here, asking the medical rule-out questions
while Manion was in custody without Miranda warnings, which
contravened article I, section 10 of the Hawai‘i Constitution 8 –
was tainted by the Miranda violation and therefore must be Alth
8 “No person shall . . . be compelled in any criminal case to be a
witness against oneself.” Haw. Const. art. I, § 10.
9
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of the poisonous tree. 9 In particular, Manion argues that
“Manion’s responses during the SFST and performance of the SFST”
(to which we will refer collectively as “the SFST”) must be
suppressed. We disagree.
“[T]he ‘fruit of the poisonous tree’ doctrine
‘prohibits the use of evidence at trial which comes to
light as a result of the exploitation of a previous illegal
act of the police.’” State v. Fukusaku, 85 Hawaiʻi 462,
475, 946 P.2d 32, 45 (1997) (quoting State v. Medeiros, 4
Haw. App. 248, 251 n.4, 665 P.2d 181, 184 n.4 (1983)).
“Under the fruit of the poisonous tree doctrine,
[a]dmissibility is determined by ascertaining whether the
evidence objected to as being ‘fruit’ was discovered or
became known by the exploitation of the prior illegality or
by other means sufficiently distinguished as to purge the
later evidence of the initial taint.” State v. Poaipuni,
98 Hawaiʻi 387, 392–93, 49 P.3d 353, 358–59 (2002)
(alteration in original) (quoting Fukusaku, 85 Hawaiʻi at
475, 946 P.2d at 45).
. . . .
“In other words, the ultimate question that the fruit
of the poisonous tree doctrine poses is as follows:
Disregarding the prior illegality, would the police
nevertheless have discovered the evidence?” Id. at 393, 49
P.3d at 359. . . .
Accordingly, the State’s burden is to demonstrate
that [the purported fruit] is not a benefit gained or an
advantage derived by the police from the prior illegality
or that the subsequent statement has become sufficiently
attenuated from the initial illegality so as to purge the
taint.
State v. Trinque, 140 Hawaiʻi 269, 281, 400 P.3d 470, 482 (2017).
9 We note that Manion squarely raised the fruits doctrine in his
answering brief to the ICA, but the ICA’s memorandum opinion did not address
it. We ultimately agree with the result the ICA reached. But because fruit
of the poisonous tree, if applicable, would require suppression of evidence
acquired after the Miranda violation irrespective of whether that evidence
was the product of interrogation, the ICA erred by failing to evaluate
whether the fruits doctrine applied.
10
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Here, the SFST was not an “exploitation of the
previous illegality,” Poaipuni, 98 Hawai‘i at 392, 49 P.3d at
358, or a “benefit gained or an advantage derived” from the
Miranda violation. Trinque, 140 Hawai‘i at 281, 400 P.3d at 482.
That the State cannot exploit or derive an advantage from a
constitutional violation reflects the principle that adequately
deterring police misconduct, a key purpose of the exclusionary
rule, requires ensuring that police cannot profit from a
constitutional violation by gaining an undue investigative edge
that they would not have otherwise had. Elkins v. United
States, 364 U.S. 206, 217 (1960) (“The [exclusionary] rule is
calculated . . . to deter – to compel respect for the
constitutional guaranty in the only effectively available way –
by removing the incentive to disregard it.”). But subsequently
obtained evidence may not be an exploitation of the illegality
if it “did not lead the officers to search for th[e allegedly
tainted] evidence nor direct any investigation into its
discovery.” Lee, 149 Hawaiʻi at 50, 481 P.3d at 57. In Lee, for
instance, the defendant had locked himself in his bedroom, and
his family, fearful of a suicide attempt, called the police.
Id. at 48, 481 P.3d at 55. The police opened his bedroom door,
which we assumed to be a constitutional violation, and the
defendant assaulted the police officers. Id. at 48-49, 481 P.3d
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at 55-56. We held that evidence obtained after the illegal
entry was not the fruit of the poisonous tree because the police
did not “exploit that illegal entry to procure the relevant
evidence – their observations of Lee’s actions.” Id. at 50, 481
P.3d at 57. Although the police would not have gathered that
evidence but for the constitutional violation (they could not
have observed the defendant without opening the door), they were
neither led “to search for” nor “direct[ed]” to discover that
evidence because of the constitutional violation. Id.
Although they immediately preceded the SFST in time,
the medical rule-out questions did not give the officers
information that “le[d] [them] to search for” evidence of
intoxication, nor did the medical rule-out questions pique their
suspicions such that their investigation was “direct[ed]”
towards discovering evidence of intoxication. Id. Rather, the
police decided to administer the SFST before committing the
Miranda violation – the district court’s findings of fact
reflect that Officer Morgan asked Manion to participate in the
SFST, and Manion agreed, prior to any interrogation (the medical
rule-out questions). The officers did not exploit the
illegality by continuing to gather evidence that they had
already set out to gather.
12
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Manion argues that the medical rule-out questions were
“a necessary predicate to the administration of the SFST.
Indeed, the validity of the conclusion that a subject’s
performance on the SFST indicated intoxication was contingent
upon negative answers to the MRO questions.” This argument is
unpersuasive. Although the district court found as a factual
matter that “Officer Morgan would not have administered the SFST
without first asking the MRO questions,” Officer Morgan’s
investigation was already “direct[ed]” to the SFST before the
medical rule-out questions, as he obtained Manion’s consent to
administer the SFST before the interrogation. Lee, 149 Hawaiʻi
at 50, 481 P.3d at 57. In Lee, the police would not have
observed the defendant without first opening the door, which we
assumed was a constitutional violation. Id. Here, as in Lee,
that Officer Morgan would not have continued with the SFST
absent asking the medical rule-out questions does not render the
SFST an “exploitation of the prior illegality.” Poaipuni, 98
Hawai‘i at 392, 49 P.3d at 358. The medical rule-out questions
did not point the officers toward the evidence they would
discover from the SFST, even if certain answers to those
questions (or failing to ask them at all) may have impacted
whether they could administer the test as a practical matter.
And though the answers to the questions provided information
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germane to the SFST (which is, indeed, why they constitute
interrogation, see State v. Skapinok, SCWC-XX-XXXXXXX, at *36
(Haw. 2022)), that the illegally-obtained evidence is relevant
to interpreting subsequently-obtained evidence does not mean
that discovery of the latter “exploit[s]” the former. Poaipuni,
98 Hawai‘i at 392, 49 P.3d at 358.
Accordingly, the SFST was not fruit of the poisonous
tree.
B. A Suspect’s Performance on the SFST Is Not Testimonial
“The privilege against self-incrimination is a bar
against compelling communications or testimony.” Uchima, 147
Hawai‘i at 84, 464 P.3d at 872 (brackets and quotation marks
omitted) (quoting Wyatt, 67 Haw. at 303, 687 at 551).
Accordingly, if performance on the SFST is testimonial, it, like
the answers to the medical rule-out questions, would constitute
statements adduced in violation of Miranda. 10 But as we settled
in Wyatt and recently reaffirmed in Uchima, performance on the
SFST is not testimonial.
“[I]n order to be testimonial, an accused’s
communication must itself, explicitly or implicitly, relate a
10 In this way, the theory that the SFST is testimonial would
independently require suppression of that evidence as a new Miranda
violation, separate and apart from the (ultimately unsuccessful) argument
that the SFST is the fruit of an earlier Miranda violation.
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factual assertion or disclose information.” Pennsylvania v.
Muniz, 496 U.S. 582, 594 (1990) (citation omitted). We first
considered whether a field sobriety test was testimonial in
Wyatt, wherein the defendant was asked to perform a three-
component battery of tests similar – though not identical – to
the SFST at issue in this case. 11 We explained that “the
privilege against self-incrimination is not necessarily
implicated whenever a person suspected of criminal activity is
compelled in some way to cooperate in developing evidence which
may be used against him.” Wyatt, 67 Haw. at 302, 687 P.2d at
551. We relied on Schmerber v. California, 384 U.S. 757, 763-64
(1966), in which the United States Supreme Court held that a
blood draw was nontestimonial because it was “real or physical
11 Specifically, the defendant participated in the following:
(a) The arch back test which requires the driver to stand
with her back arched and her eyes closed; (b) the heel walk
test where the officer requests the driver to take six
steps down, turn to the right, and take seven steps back.
Each step requires contact between the heel of one foot and
the toe of the other foot; and (c) the leg lift test where
the driver places her hands behind her head, interlocking
her fingers, lifts one leg fifteen inches off the ground
and holds it straight ahead of her for fifteen seconds.
Wyatt, 67 Haw. at 301 n.8, 687 P.2d at 550 n.8.
Components (b) and (c) of the above appear virtually identical to
the walk-and-turn and one-leg-stand tests respectively. Only component (a)
differs from the SFST at issue in this case; Manion was given the HGN test
instead of the arch back test. Manion argues that this difference warrants
revisiting Wyatt and its progeny. However, he fails to explain why this
difference would be meaningful. In any event, the test at issue in Uchima
was identical to the one given in the instant case. 147 Hawai‘i at 70, 464
P.3d at 858. Uchima, therefore, belies Manion’s argument that we should
revisit these cases because the SFST has changed.
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evidence,” to hold that the field sobriety test merely sought
“an exhibition of ‘physical characteristics of coordination,’”
and the defendant’s participation in the test therefore did not
violate the privilege against self-incrimination. Wyatt, 67
Haw. at 302-03, 687 P.2d at 551 (quoting State v. Arsenault, 336
A.2d 244, 247 (1975)).
We reaffirmed this holding in Uchima:
[The defendant’s] performance on the [S]FST does not
constitute incriminating statements. . . . In Wyatt, this
court held that when conducting an [S]FST the State does
not seek “communications” or “testimony,” but rather, “an
exhibition of ‘physical characteristics of coordination.’”
. . . Here, [the officer administering the SFST] did not
seek “communications” or “testimony” from [the defendant].
Rather, in conducting the [S]FST, the officer sought “an
exhibition of ‘physical characteristics of coordination.’”
“Consequently, the field sobriety test was not rendered
infirm by the constitutionally guaranteed privilege against
compulsory self-incrimination.”
Uchima, 147 Hawai‘i at 84–85, 464 P.3d at 872–73 (citations
omitted).
Uchima was correctly decided, and Manion offers no
compelling reason to revisit it. Manion argues that SFST
performance is “communication” or “testimony” because it “tests
mental capability instead of just purely physical coordination.”
But this is not what it means to be “testimonial.” Purely
physical evidence can provide incriminating information about a
person’s mental faculties yet nonetheless be nontestimonial.
Muniz, 496 U.S. at 593 (“[T]hat the ‘fact’ to be inferred might
be said to concern the physical status of [the defendant’s]
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brain merely describes the way in which the inference is
incriminating. The correct question for . . . purposes [of
determining whether there has been a Miranda violation] is
whether the incriminating inference of mental confusion is drawn
from a testimonial act or from physical evidence.”).
Slurred speech is an apt example. In Pennsylvania v.
Muniz, the United States Supreme Court considered whether asking
a suspect accused of driving while intoxicated the date of his
sixth birthday was testimonial. 496 U.S. at 590–93. The Court
distinguished between the content of the answer – which revealed
that the defendant was unable to remember the date of his sixth
birthday – and the way in which the answer was given. Id. The
former was testimonial because it “convey[ed] information or
assert[ed] facts.” 12 Id. at 597 (quoting Doe v. United States,
487 U.S. 201, 213 (1988)). But the act of slurring the response
was not:
We agree with the [prosecution’s] contention that
[the defendant’s] answers are not rendered inadmissible by
Miranda merely because the slurred nature of his speech was
incriminating. The physical inability to articulate words
in a clear manner due to “the lack of muscular coordination
of his tongue and mouth,” . . . is not itself a testimonial
component of [the defendant’s] responses . . . .
12 Muniz recognized that “‘[t]he vast majority of verbal statements
thus will be testimonial’ because ‘[t]here are very few instances in which a
verbal statement, either oral or written, will not convey information or
assert facts.’” 496 U.S. at 597 (brackets in original) (quoting Doe, 487
U.S. at 213).
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[A]ny slurring of speech and other evidence of lack
of muscular coordination revealed by [the defendant’s]
responses to [the officer’s] direct questions constitute
nontestimonial components of those responses. Requiring a
suspect to reveal the physical manner in which he
articulates words, like requiring him to reveal the
physical properties of the sound produced by his voice,
. . . does not, without more, compel him to provide a
“testimonial” response for purposes of the privilege.
Muniz, 496 U.S. at 590–92 (citations omitted).
The SFST, like the slurring of words, is
nontestimonial in that it constitutes “an exhibition of physical
characteristics of coordination.” Uchima, 147 Hawai‘i at 84, 464
P.3d at 872 (quotation marks and citation omitted). We
therefore see no reason to revisit our recent holding in Uchima,
with which we continue to agree.
V. CONCLUSION
For the foregoing reasons, the ICA’s December 16, 2020
judgment on appeal is affirmed.
Brian R. Vincent /s/ Mark E. Recktenwald
for respondent
/s/ Paula A. Nakayama
Alen M. Kaneshiro
for petitioner /s/ Sabrina S. McKenna
/s/ Todd W. Eddins
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