State v. Morikawa ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-APR-2023
07:51 AM
Dkt. 52 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
REID M. MORIKAWA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-19-00243)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Reid M. Morikawa (Morikawa) appeals
from the (1) July 2, 2019 "Notice of Entry of Judgment and/or
Order and Plea/Judgment," and the (2) January 7, 2020 "Notice of
Entry of Judgment and/or Order and Plea/Judgment," both entered
by the District Court of the First Circuit (District Court).1
After a bench trial, Morikawa was convicted of Operating a
Vehicle Under the Influence of an Intoxicant (OVUII), in
violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).2
1
The Honorable Sherri-Ann L. Iha presided over the July 2, 2019
bench trial and entered the July 2, 2019 judgment. The Honorable Randal I.
Shintani entered the January 7, 2020 judgment. The Honorable Philip Doi
presided over the February 26, 2019 hearing on the Motion to Suppress
Statements (Motion to Suppress) and entered the Finding of Facts, Conclusions
of Law, and Order (FOFs/COLs).
2
HRS § 291E-61(a)(1) (2020) provides:
(a) A person commits the offense of [OVUII] 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[.]
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Morikawa raises four points of error on appeal,
contending that: (1) the "case must be dismissed pursuant to
State v. Thompson[3] where the [C]omplaint did not meet the
requirements of HRS § 805-1"; (2) the District Court "failed to
engage Morikawa in a colloquy prior to his testimony to ensure
that his waiver of his right not to testify was knowing,
intelligent and voluntary"; (3) the District Court erred in
failing to suppress "Morikawa's performance on the [standardized
field sobriety test (SFST)] as the fruit of the poisonous tree";
and (4) the Plaintiff-Appellee State of Hawai#i (State)
"committed prosecutorial misconduct by violating the district
court's ruling on the motion to suppress."
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, we resolve
Morikawa's points of error as follows, and remand for a new
trial.
On January 18, 2019, the State charged Morikawa with
OVUII. On February 19, 2019, Morikawa filed a Motion to Suppress
requesting to suppress the following:
1. Any statements made by [Morikawa] to Honolulu Police
Department ("HPD") Officers or other governmental personnel.
2. Any and all evidence seized or information gained by the
Honolulu Police Department after [Morikawa] was placed under
arrest, was not read his/her Miranda rights or was
instructed that he/she did not have a right to have an
attorney.
On March 19, 2019, the District Court filed its FOFs/COLs,
suppressing Morikawa's answers to whether he would participate in
the SFST, the medical rule-out (MRO) questions, and if he
understood the SFST instructions, but denying suppression of
Morikawa's SFST performance.
The following facts are adduced from the unchallenged
FOFs/COLs. State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d
428, 435 (2019) (citation omitted) (explaining that unchallenged
3
In Thompson, the Hawai#i Supreme Court held that failure to comply
with HRS § 805-1 renders a complaint "fatally defective," and therefore, an
arrest warrant or penal summons "may not issue" upon it. 150 Hawai#i 262,
267-68, 500 P.3d 447, 452-53 (2021).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
FOFs are binding upon this court). On December 30, 2018,
Honolulu Police Department (HPD) Sergeant Mark Kono (Sergeant
Kono) pulled Morikawa's car over after observing him speeding and
weaving in between lanes. FOFs 1-4. When Sergeant Kono
approached Morikawa, he observed that Morikawa had red, watery,
glassy eyes, and a strong odor of alcohol on his breath. FOF 5.
HPD Officer Thomas Iinuma (Officer Iinuma) then arrived at the
scene, and Sergeant Kono apprised him of the situation. FOF 7.
Officer Iinuma took over the investigation and asked Morikawa if
he would participate in a SFST, to which Morikawa agreed. FOF 8.
Before administering the SFST, Officer Iinuma asked Morikawa MRO
questions to determine whether he was on any medications, was
diabetic, epileptic, or under the care of a doctor or eye doctor,
was blind, had a glass eye, or wore corrective lenses, or had
physical defects or impediments. FOFs 10-11. Morikawa answered
"no" to all except that he wore glasses and was under an eye
doctor's care. FOF 12. Officer Iinuma then instructed Morikawa
on how to perform each part of the SFST, and asked if he
understood the instructions. FOF 17. Morikawa performed the
SFST, but refused to take a preliminary alcohol screen test.
FOFs 19-20. During the encounter, Morikawa was never given
Miranda4 warnings.
The District Court held a bench trial on July 2, 2019.
Before Morikawa testified, the District Court advised him as
follows:
THE COURT: As . . . we discussed before . . .
trial, you have a constitutional right to testify in
your own defense. And although you should consult
with your attorney regarding the decision to testify,
it is your decision and no one can prevent you from
testifying should you choose to do so.
Now, you have elected to testify. Keep in mind
that the prosecutor will be allowed to cross-examine
you or ask you questions. Okay?
At the end of the trial, the District Court ruled that it found
the officers credible, that Morikawa "was not credible," and
4
Miranda v. Arizona, 384 U.S. 436 (1966).
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
rejected Morikawa's explanation for any deviation in his
performance on the SFST. The District Court found Morikawa
guilty as charged. This appeal followed.
(1) Morikawa argues that the Complaint was defective
under HRS § 805-15 because no witness with direct observations of
Morikawa's misconduct "subscribed to" or "submitted a declaration
in support of the [C]omplaint." Rather, the Complaint was signed
by the deputy prosecuting attorney (DPA). Whether the Complaint
complied with applicable statute and/or rule is a question of law
we review de novo. Thompson, 150 Hawai#i at 266, 500 P.3d at 451
(citation omitted).
The Hawai#i Supreme Court recently held, in State v.
Mortensen-Young, SCAP-XX-XXXXXXX, 2023 WL 2519396, at *15 (Mar.
15, 2023), that HRS § 805-1 applies only to criminal complaints
used to obtain a penal summons or arrest warrant. In other
cases, such as the OVUII prosecutions at issue in Mortensen-
Young, Hawai#i Rules of Penal Procedure (HRPP) Rule 76 provides
the proper framework to analyze the sufficiency of complaints.
Id. at *14-15. In Mortensen-Young, the supreme court held that
5
HRS § 805-1 (2014) states, in pertinent part:
§805-1. Complaint; form of warrant. When a complaint
is made to any prosecuting officer of the commission of any
offense, the prosecuting officer shall examine the
complainant, shall reduce the substance of the complaint to
writing, and shall cause the complaint to be subscribed by
the complainant under oath, which the prosecuting officer is
hereby authorized to administer, or the complaint shall be
made by declaration in accordance with the rules of
court. . . .
6
HRPP Rule 7 states, in pertinent part:
Rule 7. INDICTMENT, INFORMATION, OR COMPLAINT.
. . . .
(d) Nature and contents. The charge shall be a plain,
concise and definite statement of the essential facts
constituting the offense charged. . . . A complaint shall
be signed by the prosecutor. The charge need not contain a
formal conclusion or any other matter not necessary to such
statement. . . . The charge shall state for each count the
official or customary citation of the statute, rule,
regulation or other provision of law which the defendant is
alleged therein to have violated. . . .
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the appellees were properly charged by complaint, signed by the
DPA, for the offense of OVUII pursuant to HRPP Rule 7(d), which
does not require that a "'charging instrument in a misdemeanor
case be signed by anyone other than a prosecutor'" or
"'subscribed under oath or made by declaration in lieu of an
affidavit by anyone.'" Id. at *14.
Here, as in Mortensen-Young, HRS § 805-1 is
inapplicable because the Complaint was not used to obtain a penal
summons or arrest warrant. The Complaint set forth a concise and
definite statement of the essential facts, was signed by the
prosecutor, and referenced the statute that Morikawa allegedly
violated, as required by HRPP Rule 7(d). Thus, the Complaint was
sufficient to initiate the subject prosecution. See Mortensen-
Young, 2023 WL 2519396, at *14-15.
(2) Morikawa argues that the District Court violated
his constitutional right not to testify under State v. Torres,
144 Hawai#i 282, 294-95, 439 P.3d 234, 246-47 (2019), in that it
only advised him of his right to testify, but not of his right
not to testify. This contention has merit. "The validity of a
defendant's waiver of constitutional rights in a criminal case is
a question of law under the state and federal constitutions,
which we review under the right/wrong standard." State v.
Martin, 146 Hawai#i 365, 377, 463 P.3d 1022, 1034 (2020) (citing
Torres, 144 Hawai#i at 288, 439 P.3d at 240).
"Our precedents [] firmly establish that a defendant's
right to testify is of equal constitutional stature to the
defendant's corresponding right to refrain from testifying."
Torres, 144 Hawai#i at 284, 439 P.3d at 236. A colloquy protects
both rights; thus, when a defendant chooses to testify, "trial
courts are required to engage in an on-the-record colloquy with a
defendant when the defendant chooses to testify to ensure that a
waiver of the right not to testify is knowing, intelligent, and
voluntary." Id. at 294-95, 439 P.3d at 246-47 (footnote
omitted). When a violation of the constitutional right not to
testify occurs, "the conviction must be vacated unless the State
5
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can prove that the violation was harmless beyond a reasonable
doubt." Id. at 290-91, 439 P.3d at 242-43 (footnote and citation
omitted).
The record does not reflect that the District Court
advised Morikawa regarding his right not to testify; thus, the
District Court's colloquy was defective.7 See id. at 294-95,
439 P.3d at 246-47. The State also concedes the District Court's
failure to conduct a proper colloquy8 and does not contend that
the violation was harmless beyond a reasonable doubt;9
accordingly, Morikawa is entitled to a new trial. See id. at
290-91, 439 P.3d at 242-43.
(3) Morikawa argues that his performance on the SFST
was the "fruit of the poisonous tree" because the District Court
had already suppressed Morikawa's responses to (1) being asked if
he would like to participate in the SFST, (2) whether he
understood the instructions of the SFST,10 and (3) the MRO
7
Prior to Morikawa testifying at trial, the District Court advised
Morikawa as follows:
THE COURT: As . . . we discussed before . . .
we started trial, you have a constitutional right to
testify in your own defense. And although you should
consult with your attorney regarding the decision to
testify, it is your decision and no one can prevent
you from testifying should you choose to do so.
Now, you have elected to testify. Keep in mind
that the prosecutor will be allowed to cross-examine
you or ask you questions. Okay?
The transcript does not reflect any response from Morikawa, and shows that
Morikawa was then administered the oath and sworn as a witness.
8
We give "due consideration" to the State's concession of error, as
"[a] prosecutor's confession, although not binding on an appellate court, is
'entitled to great weight.'" State v. Eduwensuyi, 141 Hawai#i 328, 337, 409
P.3d 732, 741 (2018) (quoting Territory v. Kogami, 37 Haw. 174, 175 (Haw.
Terr. 1945)).
9
The District Court took into consideration Morikawa's testimony,
found him not credible, and rejected his explanation for any deviation in his
performance on the SFST.
10
While Morikawa categorizes three types of Miranda violations in
his point of error, only one (MRO questions) has been held to be a Miranda
violation. See State v. Skapinok, 151 Hawai#i 170, 185, 510 P.3d 599, 614
(2022). The other two "violations" Morikawa refers to (i.e. preliminary
(continued...)
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
questions. "[W]e review the [District Court]'s ruling on a
motion to suppress de novo to determine whether the ruling was
'right' or 'wrong.'" State v. Manion, 151 Hawai#i 267, 271-72,
511 P.3d 766, 770-71 (2022) (internal citation omitted) (quoting
State v. Lee, 149 Hawai#i 45, 49, 481 P.3d 52, 56 (2021)).
In Skapinok, the supreme court held that performance on
the SFST is not "the fruit of the poisonous tree" because
[a]lthough they immediately precede[] the SFST in time, the
medical rule-out questions [do] not give the officers
information that le[a]d them to search for evidence of
intoxication, nor d[oes] the medical rule-out questions
pique their suspicions such that their investigation [is]
directed towards discovering evidence of intoxication.
151 Hawai#i at 186-87, 510 P.3d at 615-16 (internal quotation
marks and brackets omitted) (quoting Manion, 151 Hawai#i at 273,
511 P.3d at 772).
Here, the record reflects that Officer Iinuma had
already set out to administer the SFST before asking the MRO
questions, and had already asked for, and received, Morikawa's
consent for the test. The officers did not "'exploit the
illegality by continuing to gather evidence that they had already
set out to gather.'" Id. at 187, 510 P.3d at 616 (citation
omitted). Thus, the District Court did not err in denying the
suppression of Morikawa's performance on the SFST. See id.
(4) Because we remand for a new trial, we do not reach
the argument that the State committed prosecutorial misconduct at
trial.
For the foregoing reasons, the July 2, 2019 "Notice of
Entry of Judgment and/or Order and Plea/Judgment," and the
January 7, 2020 "Notice of Entry of Judgment and/or Order and
Plea/Judgment," both entered by the District Court of the First
10
(...continued)
questions regarding a defendant's willingness to participate in a SFST, and
understanding of the SFST instructions) have been held to not constitute
interrogation, based on recent decisions by our supreme court. See id. at
186, 510 P.3d at 615. Thus, we only analyze the issue of whether the SFST
performance is the "fruit of the poisonous tree" from the MRO questions.
7
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Circuit, are vacated, and this matter is remanded for new trial
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, April 28, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Alen M. Kaneshiro Presiding Judge
for Defendant-Appellant
/s/ Clyde J. Wadsworth
Brian R. Vincent Associate Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellee /s/ Karen T. Nakasone
Associate Judge
8