State v. Hopkins ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-SEP-2021
07:51 AM
Dkt. 61 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
ISAAC LIAM HOPKINS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-19-00572)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Isaac Liam Hopkins (Hopkins)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, filed on May 1, 2019, and the Notice of Entry of
Judgment and/or Order and Plea/Judgment, filed on May 21, 2019,
in the District Court of the First Circuit, Honolulu Division
(District Court).1
Following a bench trial, the District Court convicted
Hopkins of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
1
The Honorable Florence T. Nakakuni presided.
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§ 291E-61(a)(1) (2007),2 and sentenced him as a first-time OVUII
offender.
On appeal, Hopkins contends: (1) there was
insufficient evidence to convict him of OVUII because the State
failed to prove impairment of his mental faculties or ability to
care for himself and guard against casualty, and the District
Court incorrectly stated "faculty" instead of "casualty" as an
element of the offense; (2) the State failed to prove Hopkins
acted with the requisite intentional, knowing, or reckless state
of mind; and (3) the District Court erred by relying upon
improper evidence, specifically (a) Hopkins's statement that he
had one drink earlier, without the court holding a voluntariness
hearing pursuant to HRS § 621-26 (2016),3 (b) the opinion of an
officer that Hopkins was intoxicated when the officer did not
testify as to his opinion, (c) no testimony regarding clues to
the standardized field sobriety tests (SFSTs) or how to interpret
performance of them, and (d) Hopkins hopping for ten seconds
during the one-leg stand test.
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 Hopkins's points of error as follows, and we vacate and
remand.
2
HRS § 291E-61(a) states:
§ 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; . . . .
3
HRS § 621-26, entitled "Confessions, when admissible," provides:
"No confession shall be received in evidence unless it is first made to appear
to the judge before whom the case is being tried that the confession was in
fact voluntarily made."
2
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On February 13, 2019, Plaintiff-Appellee State of
Hawai#i (State) charged Hopkins with OVUII.4 At the May 1, 2019
bench trial, the State presented one witness, Honolulu Police
Department (HPD) Officer Ty Ah Nee (Officer Ah Nee). Officer Ah
Nee testified that while on duty on January 25, 2019, at
approximately 2:30 a.m., he noticed Hopkins's vehicle traveling
faster than other vehicles on the westbound lanes of the H-1
freeway under the Ward Avenue overpass. Hopkins was measured
with a LIDAR5 device traveling at 68 miles per hour in a 45 mile
per hour zone and was observed weaving side to side within the
lane. Officer Ah Nee initiated a traffic stop, and Hopkins
pulled over near the School Street offramp. Two males were in
the vehicle, with Hopkins in the driver's seat. Officer Ah Nee
explained to Hopkins that he was going 23 miles per hour over the
speed limit, and Hopkins replied that he did not realize the
freeway speed was only 45 miles per hour. While speaking with
Hopkins and obtaining Hopkins's license, registration, and
insurance, Officer Ah Nee noticed a strong odor of an alcoholic
beverage coming from the vehicle, and observed that Hopkins's
eyes were watery, red, and glassy. Officer Ah Nee informed
Hopkins of his observations and asked Hopkins to participate in a
4
The complaint against Hopkins states:
On or about January 25, 2019, in the City and County
of Honolulu, State of Hawai#i, ISAAC LIAM HOPKINS did
intentionally, knowingly or recklessly operate or assume
actual physical control of a vehicle upon a public way,
street, road, or highway while under the influence of
alcohol in an amount sufficient to impair his normal mental
faculties or ability to care for himself and guard against
casualty; and/or did operate or assume actual physical
control of a vehicle upon a public way, street, road, or
highway with .08 or more grams of alcohol per two hundred
ten liters of breath, thereby committing the offense of
Operating a Vehicle Under the Influence of an Intoxicant, in
violation of Section 291E-61(a)(1) and/or (a)(3) of the
Hawai[]i Revised Statutes. ISAAC LIAM HOPKINS is subject to
sentencing in accordance with Section 291E-61(b)(1) of the
Hawaii Revised Statutes as a first offender.
5
A LIDAR device is a "speed measuring device," also known as a
"laser gun," that allows a police officer to estimate a vehicle's speed.
3
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SFST. The prosecutor then asked Officer Ah Nee if Hopkins said
anything when Hopkins was informed of his observations about the
"odor and the eyes," prior to the officer offering a SFST.
Hopkins's counsel objected, citing a violation of HRS § 621-26
and Hopkins's "right to remain silent." The District Court
overruled the objection, and Officer Ah Nee testified that
Hopkins stated, "he did drink earlier but he only had one because
he was the driver . . . ."6
When administering the horizontal gaze nystagmus test,
the officer continued to smell an alcoholic type beverage coming
from Hopkins. Hopkins's head also swayed slightly during the
test, and he had to be reminded to keep his head still. During
the walk-and-turn test, Hopkins missed one heel-to-toe step on
the first nine steps, swung around on his right foot, hopped a
little, shuffled his feet during a turn, and missed three heel-
6
The trial transcript reflects the following:
A. [(OFFICER AH NEE)] So I explained my
observations to him. Mr. Hopkins, you know, I don't
drink alcohol but I can smell it coming from the car.
There's two of you, I'm not really sure who it's coming
from or both. If you don't mind, I just want to make
sure everybody gets home safely, can you -- can you
please come out and let's do a sobriety test, make sure
that you both are going to be able to get home.
Q. [(BY PROSECUTOR)] Okay. Now, before we get
to the exit or even the offering of the field sobriety
test, when you told the defendant about your observations
about the odor and the eyes, did the defendant say
anything to you?
[DEFENSE COUNSEL]: So I'm going to object,
Your Honor. This violates 621-26, it violates defendant's
right to remain silent.
THE COURT: No. Overruled.
A. (By the Witness) Yes. When I explained my
observations to him before I asked him out, he did -- he
had said that they were coming from Waikiki and he did
drink earlier but he only had one because he was the
driver . . . .
The transcript reflects that Hopkins objected on grounds of both HRS § 621-26
and his constitutional right against self-incrimination. On appeal, however,
Hopkins's argument exclusively relies on HRS § 621-26 to challenge the
admission of the statement.
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to-toe steps and stepped off the line on the nine return steps,
all of which were contrary to the instructions. During the one-
leg stand test, Hopkins lifted his foot and his leg swayed,
hopped a little at the ten second mark, did not look at his foot
while counting, and did not raise his leg six inches, all of
which were contrary to the instructions. After the SFSTs,
Officer Ah Nee arrested Hopkins for OVUII.
Following the State's case, Hopkins rested without
presenting any evidence. The District Court found Officer Ah Nee
credible, and convicted Hopkins of OVUII.
The District Court entered judgment on May 1, 2019, and
Hopkins subsequently filed a Motion for Reconsideration that was
denied on May 21, 2019. Hopkins timely appealed.
We first address Hopkins's contention that the District
Court, without holding a voluntariness hearing under HRS § 621-
26, erroneously admitted Hopkins's statement to the officer that
he had one drink, and that the District Court erroneously relied
on this improperly admitted statement to convict Hopkins. This
contention has merit and is dispositive.
Hopkins's statement that he had one drink was an
inculpatory statement that tended to establish guilt for the
offense. HRS § 621-26 "applies to inculpatory statements as well
as confessions." State v. Hewitt, 149 Hawai#i 71, 76, 481 P.3d
713, 718 (App. 2021), cert. granted, No. SCWC-XX-XXXXXXX, 2021 WL
2775190, at *1 (Haw. July 2, 2021) (citing State v. Kelekolio, 74
Haw. 479, 501 n.13, 849 P.2d 58, 69 n.13 (1993)). In Hewitt, we
held that the district court in an OVUII bench trial erred when
it similarly overruled the defendant's HRS § 621-26 trial
objection. Id. at 72, 481 P.3d at 714. In Hewitt, the officer
initially interviewed the defendant at the hospital emergency
room as a potential assault victim. Id. at 73, 481 P.3d at 715.
The defendant was physically incapacitated and heavily sedated.
Id. The officer, after being informed that the defendant's
identification was found in a pickup truck that crashed on the
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side of the highway, asked the defendant if she was driving. Id.
The defendant answered that "she was driving to a friend's house
and parked the truck in the bushes." Id. At trial, the officer
testified that he had asked the defendant whether she had been in
a traffic accident. Id. at 76, 481 P.3d at 718. The State
asked, "[W]hat was her response?" and defense counsel objected,
which the district court overruled. Id. We held, "Rather than
overruling the objection, the district court should have
conducted an evidentiary hearing to determine whether [the
defendant's] statement was voluntarily made, in light of the
evidence that [the defendant] had sustained significant head
trauma, did not know where she was, and was incoherent." Id.
Under HRS § 621-26, "[t]he trial judge has a duty to
determine the admissibility of an inculpatory statement . . . ."
State v. Green, 51 Haw. 260, 264, 457 P.2d 505, 508 (1969)
(citation omitted). A defendant has both a "constitutional and
statutory right to a judicial determination of the voluntariness
of his confession" or inculpatory statement. State v. Goers, 61
Haw. 198, 201, 600 P.2d 1142, 1144 (1979); see State v. Eli, 126
Hawai#i 510, 520 n.17, 273 P.3d 1196, 1206 n.17 (2012)
("[C]onstitutional due process, based on article 1, section 5 of
the Hawai#i Constitution, requires a statement to be 'voluntary'
in order to be admissible.") (citation omitted).
While HRS § 621-26 does not expressly require a trial
court to conduct a separate voluntariness hearing, the statute
requires that the trial judge must determine "that the confession
was in fact voluntarily made." (Emphasis added). Thus, the
judge presiding over the trial must make a factual determination
of voluntariness before the admission of the statement. See
Green, 51 Haw. at 264, 457 P.2d at 508; Hewitt, 149 Hawai#i at
76, 481 P.3d at 718. Here, the District Court erred when it did
not hold a hearing or make a factual determination of the
voluntariness of Hopkins's statement before admitting the
statement into evidence.
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Once it has been determined that a confession or
inculpatory statement was erroneously admitted into evidence, the
appellate court must consider whether the erroneous admission was
harmless beyond a reasonable doubt. See State v. Baker, 147
Hawai#i 413, 435, 465 P.3d 860, 882 (2020) (erroneous admission
of confession subject to harmless error analysis on appeal). "In
applying the harmless beyond a reasonable doubt standard, the
court is required to examine the record and determine whether
there is a reasonable possibility that the error complained of
might have contributed to the conviction." State v. Jones, 148
Hawai#i 152, 170, 468 P.3d 166, 184 (2020) (citations omitted).
In this case, because the District Court expressly
referenced Hopkins's inculpatory statement in its recitation of
the evidence to support its finding of guilt,7 the error is not
harmless beyond a reasonable doubt, and we must vacate and remand
for a new trial.
Given our disposition, it is not necessary to address
Hopkins's remaining contentions, except for his evidentiary
sufficiency challenge. We review the sufficiency of evidence
based on admissible evidence; stated another way, we must review
the remaining evidence, without considering Hopkins's inculpatory
statement. See State v. Wallace, 80 Hawai#i 382, 413-15, 910
P.2d 695, 726-28 (1996) (holding that review for evidentiary
sufficiency is based on "substantial and admissible evidence")
(emphasis in original). Evidence must be considered in the
"strongest light for the prosecution;" and the "test on appeal is
7
The District Court stated:
And he [(Officer Ah Nee)] -- one of the things
he testified to was he told Mr. Hopkins about his
observations. Oh, and also about his observations and he
wasn't sure if the odor was coming from Mr. Hopkins or the
other person so he asked Mr. Hopkins if he could come out of
the car and do the standardized field sobriety test. And at
that point Mr. Hopkins told him that he had drank earlier
but only had one drink.
(Emphasis added).
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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. Matavale, 115 Hawai#i 149, 157-
58, 166 P.3d 322, 330-31 (2007).
Here, there was substantial evidence to convict Hopkins
of OVUII. See id. at 157, 166 P.3d at 330. The record reflects
that Hopkins was speeding 23 miles per hour over the speed limit,
and did not know the speed limit despite speed control signs in
the area. He was also weaving side to side within a lane and
could not follow the SFST instructions. Hopkins's driving,
combined with Officer Ah Nee's observations of Hopkins's physical
indicia of intoxication and performance on the SFSTs, viewed in
the strongest light for the prosecution, constitutes substantial,
admissible evidence of Hopkins's OVUII offense. See id.;
Wallace, 80 Hawai#i at 413-15; 910 P.2d at 726-28.
Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment filed on May 1,
2019, and the Notice of Entry of Judgment and/or Order and
Plea/Judgment filed on May 21, 2019, in the District Court of the
First Circuit, Honolulu Division, are vacated, and we remand for
a new trial consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, September 14, 2021.
On the briefs:
/s/ Katherine G. Leonard
Marcus L. Landsberg IV Presiding Judge
(Landsberg Law Office)
for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Donn Fudo
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
for Plaintiff-Appellee Associate Judge
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