State v. Arkin ( 2019 )

*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
08-APR-2019
10:41 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
MICHAEL L. ARKIN,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 3DTC-13-02654)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner Michael L. Arkin (Arkin) was convicted
following a bench trial of Operating a Vehicle Under the
Influence of an Intoxicant (OVUII) in which the results of a
field sobriety test known as the horizontal gaze nystagmus (HGN)
test were admitted into evidence.1 Respondent State of Hawaiʻi
(State), through the Office of the Prosecuting Attorney for the
County of Hawaiʻi, confessed as error before the Intermediate
1
The Honorable Andrew P. Wilson presided.
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Court of Appeals (ICA) that insufficient foundation was laid for
its admission. The confession of error also conceded that,
absent the HGN test results, insufficient evidence supported
Arkin’s conviction.
The State of Hawaiʻi, through Deputy Prosecuting Attorney
Jason R. Kwiat, hereby concedes that the State did not lay
sufficient foundation for the admission of the horizontal
gaze nystagmus test as required by State v. Ito, 90 Hawaiʻi
225, 978 P.2d 191 (App. 1999). Coupled with the trial
court’s finding that the State did not lay sufficient
foundation for the admission of the breath alcohol
concentration test results, the State concedes that there
is insufficient evidence to sustain Defendant-Appellant
Michael L. Arkin’s conviction under Haw. Rev. Stat. § 291E-
61(a)(1).
Before accepting a confession of error a court must
ascertain that the confession of error is supported by the
record, well founded in the law, properly preserved, and
prejudicial. State v. Hoang, 93 Hawaiʻi 333, 336, 3 P.3d 499,
502 (2000). And, “great weight” must be given by the court to
the prosecutor’s confession of error.
But [the public prosecutor’s] confession [of error], though
entitled to great weight, is not binding upon the appellate
court, nor may a conviction be reversed on the strength of
his [or her] official action alone. Before a conviction is
reversed on confessed error, the public interest requires
and it is incumbent upon the appellate court to ascertain
first that the confession of error is supported by the
record and well–founded in law and to determine that such
error is properly preserved and prejudicial.
Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945)
(emphasis added).
Arkin contends that the decision of the ICA failed to
apply the proper standard to determine whether the State’s
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confession of error should be accepted. The ICA rejected the
confession of error based solely on its erroneous conclusion
that the failure of Arkin’s trial counsel to object to the
admission of the results of the HGN test automatically
disqualified it from appellate consideration as plain error.2
See Hawaiʻi Rules of Evidence Rule 103(d) (“Nothing in this rule
precludes taking notice of plain errors affecting substantial
rights although they were not brought to the attention of the
court.”). Nonetheless, in light of the evidentiary record in
this case, the admission of the HGN evidence did not rise to
plain error. Thus, we concur with the ICA’s affirmance of the
judgment but on different grounds. We find the other issues
raised by Arkin to be without merit. Accordingly, the ICA’s May
15, 2017 Judgment on Appeal is affirmed.
DATED: Honolulu, Hawaiʻi, April 8, 2019.
John M. Tonaki, /s/ Mark E. Recktenwald
Phyllis J. Hironaka,
Reiko A. Bryant /s/ Paula A. Nakayama
for Petitioner
/s/ Sabrina S. McKenna
Mitchell D. Roth,
David Blancett-Maddock /s/ Richard W. Pollack
for Respondent.
/s/ Michael D. Wilson
2
The ICA’s summary disposition order can be found in full at State
v. Arkin, No. CAAP-XX-XXXXXXX (App. March 21, 2017 as amended May 15, 2017)
(SDO).
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