I. Questions Presented
1. Did the Intermediate Court of Appeals commit grave and manifest errors of law and fact in holding that Suppression Hearings in District Court cases may be held the day of trial and evidence adduced at that Suppression Hearing incorporated into trial over Ms. DUI Defendant’s multiple prior objections?
2. Did the Intermediate Court of Appeals commit grave and manifest errors of law and fact in affirming the District Court’s denial of Ms. DUI Defendant’s Motion to Suppress?
3. Did the Intermediate Court of Appeals commit grave and manifest errors of law and fact in finding, only days before this Court’s decision in State v. Kevin Nesmith, SCWC-10-0000072, that the Complaint filed against Ms. DUI Defendant in the court below was not fatally defective?
II. Statement of the Case and Prior Proceedings
On ____________ 7, 2010, Appellant, DUI Defendant, was arrested and subsequently charged with Operating a Vehicle Under the Influence of an Intoxicant (“OVUII”), first offense in violation of Section 291E-61(a)(1) and (a)(3) of the Hawaii Revised Statutes.
On ____________ 16, 2010 Ms. DUI Defendant filed a Motion to Suppress. Counsel, without Ms. DUI Defendant, first appeared to Suppression Hearing on ____________ 20, 2010. The State did not object and had never objected to Ms. DUI Defendant’s request to waive her presence. In fact, the State was ready to proceed. However, the lower court ordered that both the Suppression Hearing and trial be held on ____________ 15, 2010.
On May 24, 2010, Ms. DUI Defendant filed “Defendant DUI Defendant’s Motion to Hold Suppression Hearing in Advance of Trial and to Waive Defendant’s Appearance.” In that Motion Ms. DUI Defendant raised multiple grounds, constitutional and otherwise, that necessitate a Suppression Hearing be held in advance of trial.
The State responded to Ms. DUI Defendant’s Motion and, for the first time, objected to Ms. DUI Defendant’s request that the Suppression Hearing be held on a day prior to the day of trial. The State argued only that Ms. DUI Defendant’s request deviated from the “custom” and “generally accepted conduct of trial in District Court.” The State also requested, again for the first time, that all evidence adduced at the Suppression Hearing be incorporated into the trial.
On ____________ 21, 2010, Ms. DUI Defendant filed her Reply. Ms. DUI Defendant not only addressed the State’s argument that Ms. DUI Defendant sought “preferential treatment” because she requested application of the written rules in favor of “customs and usual practices” and because she asserted her constitutional rights. Further, Ms. DUI Defendant “adamantly objected” to the State’s request for wholesale incorporation of the testimony and other evidence adduced at the Suppression Hearing into the trial.
On ____________ 24, 2010, Ms. DUI Defendant’s motion was heard. In addition to arguing in favor of setting the Suppression Hearing in advance of trial, counsel again objected to the State’s request that the evidence adduced at the Suppression Hearing be incorporated into trial. The State argued that “it doesn’t make sense to have two trials.” The lower court, simply adopting the “arguments presented by the State,” denied Ms. DUI Defendant’s motion.
On ____________ 28, 2010, Ms. DUI Defendant filed, with this Court, a Petition for Writ of Mandamus and/or Prohibition to the Honorable Lono J. Lee and the Honorable David W. Lo. The Petition requested that the lower court be mandated to hold the Suppression Hearing far enough in advance to allow Ms. DUI Defendant to make use of the transcript, make appropriate decisions pertaining to her case, and to dismiss the case pursuant to Rule 48 of the Hawai‘i Rules of Penal Procedure, if applicable. Importantly, the Petition also repeatedly raised, fully addressed, and requested relief regarding the issue of incorporation of the testimony adduced at the Suppression Hearing into the trial. The Petition was denied on ____________ 12, 2010 – but not on its merits.
On ____________ 20, 2010, the Motion to Suppress and trial proceeded. The first order of business, at the request of the Prosecutor, was to arraign Ms. DUI Defendant. Only then was the Motion to Suppress addressed.
Following the reading of the Complaint, Ms. DUI Defendant objected to the Complaint for failing to allege essential facts, specifically the mens rea.
At some point before the Suppression Hearing began, a bench conference was held. During that bench conference, defense counsel was asked whether Ms. DUI Defendant would consent to incorporation of the testimony adduced at the Suppression Hearing into the trial. Counsel replied that Ms. DUI Defendant could not so consent because of the prior litigation and objections to that procedure. The judge stated that he was not going to hear the evidence twice. Counsel informed the judge that Ms. DUI Defendant wished her objections be preserved. Pursuant to this conversation, the Court assured counsel that Ms. DUI Defendant’s objections would be preserved in an on-the-record announcement:
And – and I do – I do want to put on the record that we are – the way we’re proceeding with this is we’re going to do the motion to suppress first, and both counsel will agree and stipulate that the testimony heard in the motion to suppress can be used with respect to the trial so that the same testimony does not have to be repeated, and it’s with the understanding on the record and the approval of the Court that such an agreement will not be considered a waiver of any issues [Ms. DUI Defendant] ha[s] raised in [her] writ of mandamus or [her] appeal to the – the Intermediate Court of Appeals or supreme court.
The Suppression Hearing began. The sole witness presented by the State was Officer DUI Arrest Officer. Officer DUI Arrest Officer testified that she “thought the defendant was going to hit the back of [her] vehicle at a stop light.” Officer DUI Arrest Officer testified that she saw “in [her] mirror a car coming up on [her] real fast.” Officer DUI Arrest Officer first saw the car when it was 100 to 150 feet away from her vehicle. She “put [her] foot on the brake . . . and just waited to see if was going to hit [her] or not.” “Within seconds” the car was “right on” Officer DUI Arrest Officer. Although Officer DUI Arrest Officer did not move her car forward to prevent a collision, the car did not hit Officer DUI Arrest Officer’s vehicle. The car came to a stop where Officer DUI Arrest Officer “couldn’t step between the two cars.” And, although admitting on cross-examination that she did not write in her report that she heard squealing tires, Officer DUI Arrest Officer now testified that she heard squealing tires. However, Officer DUI Arrest Officer did not recall smelling “burned rubber.”
The Prosecutor attempted to have Officer DUI Arrest Officer testify to the speed she believed the approaching car was traveling. However, counsel objected and the court properly disallowed the testimony because “there’s no foundation for that.” Yet on cross-examination, again without any foundation having been established and without the previous objection having been overruled or even reconsidered, Officer DUI Arrest Officer blurted out that she “knew the car was traveling in excess of 25 mph” but she did not know the “number.” However, Officer DUI Arrest Officer also admitted that she had no training to determine how fast a car was traveling from the vantage point of her rearview mirror. She also testified that she had no opportunity to verify her opinion of a motorist’s speed when viewing the vehicle through a rearview mirror stating: “can I – your question is can I tell you how fast they’re going by just watching . . . [e]xactly, no sir.”
The court denied Ms. DUI Defendant’s Motion to Suppress. In denying the Motion, the court relied upon the testimony regarding the car’s alleged speed, after having sustained the defense objection regarding such testimony.
The “trial” then began. No testimony was adduced at trial as the BrAC result was properly struck by the court. Nevertheless, the court found that Ms. DUI Defendant was guilty of violating Section 291E-61(a)(1) of the Hawaii Revised Statutes (“HRS”). Judgment was entered that same day.
An appeal followed and on ____________ 4, 2012, in a summary disposition order, the Intermediate Court of Appeals (“ICA”) affirmed the lower court in regards to each of Ms. DUI Defendant’s Points of Error. Judgment was entered on ____________ 3, 2012.
The ICA committed grave and manifest errors in holding that Suppression Hearings
may be held the day of trial and evidence adduced therein incorporated into the trial.
In this case, Ms. DUI Defendant was denied a trial in its entirety, resulting in gross and manifest error. None of the rights guaranteed defendants at a criminal trial was afforded Ms. DUI Defendant. For example, in order to avoid a confrontation problem, the State would have to prove that Officer DUI Arrest Officer was unavailable. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2531 (2009) (“[a] witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.”) (emphasis added). Officer DUI Arrest Officer was sitting in the witness stand when the incorporation of her testimony was permitted. Nevertheless, ignoring the repeated objections lodged by Ms. DUI Defendant in this case, the ICA simply held that Ms. DUI Defendant had stipulated to the admission of the Suppression Hearing Testimony into trial.
Yet, on the same page of its opinion, the panel recognized that Ms. DUI Defendant’s purported
‘stipulation was made with the understanding . . . that such an agreement will not be considered a waiver of any issues you have raised in your writ of mandamus or your appeal to the – the Intermediate court of Appeals or supreme court.’ DUI Defendant specifically stated she was not waiving her right to appeal ‘the need for a transcript to assist us in making essential trial decisions and to use to impeach this officer.’
And, in footnote 3, the panel then enumerated the issues raised in the Writ of Mandamus. Nevertheless, the panel, almost immediately thereafter, held that Ms. DUI Defendant had waived the precise rights that the panel recognized she had preserved and specifically enumerated in footnote 3:
DUI Defendant’s claim that she needed the written transcript of the suppression hearing to ‘use to impeach this officer’ makes no sense, given that Officer DUI Arrest Officer’s testimony was incorporated into the bench trial and, although DUI Defendant was not precluded from further cross-examining Officer DUI Arrest Officer during the trial proceedings, DUI Defendant made no attempt to do so. Rather, DUI Defendant simply chose to rely on the testimony that Officer DUI Arrest Officer had already given during the suppression hearing. Mundon is clearly distinguishable and does not support DUI Defendant’s claim.
The undersigned counsel is simply unable to reconcile these two conflicting paragraphs in the ICA opinion. And, while the District Court judge should have used a better word than “stipulate,” the fact that he chose that word should not be held to constitute a waiver. “An opponent who fails to object is held to have waived the appellate point” rather than one who specifically and repeatedly raises the point and ensures that the trial court notes the objections on the record. A. Bowman, Hawaii Rules of Evidence Manual 1-6 (2010-2011 ed.) (emphasis added). Ms. DUI Defendant did object and even had the trial court note the objection. This purported “stipulation” was nothing more than re-confirmation of that court’s prior order denying Ms. DUI Defendant’s ____________ 24, 2010 Motion to Advance, which specifically addressed the incorporation of the evidence.
Further, the panel’s finding that Ms. DUI Defendant’s claim that she needed the transcript “made no sense” because, unlike Mundon, this transcript did not have “’significant value to [the defendant’ in preparing for trial’” is simply irreconcilable with the law pertaining to a Defendant’s need for a transcript, quoted in the Opening Brief at pages 19-21. State v. Mundon, 121 Hawai’i 339, 357, 219 P.3d 1126, 1144 (2009) (claim of prejudice not “unsubstantiated merely because he did not . . . identify specific examples of prejudice”); Britt v. North Carolina, 404 U.S. 226, 228 (1971) (Defendant need not show “particularized need tailored to the facts”); See also Gordon v. United States, 344 U.S. 414, 421-11 (1953) (error to deny admission of transcript for impeachment purposes); Gonzalez v. District Court, 602 P.2d 857 (Colo. 1979); Tennessee Rules of Criminal Procedure, Rule 16.1 (amended to entitle a defendant to a new preliminary hearing if the recording of the first hearing is no longer available or substantially inaudible). Because none of those defendants, consistent with the law, were required to show any particular need for the transcripts, it is impossible to conclude (as has the ICA in this case) that Ms. DUI Defendant had less of a need for the transcript than any of the Defendants in the aforecited cases. In addition, the ICA simply ignored the remainder of Ms. DUI Defendant’s objections to the incorporation of the evidence.
Also, citing the court’s “inherent power to control the litigation process,” the ICA held that it was not error to allow the Suppression Hearing to proceed on the same day as trial. This was in response to the State’s reliance on unwritten “customs” or “usual practices” of the District Courts. Although it is obvious that a Defendant could not be expected to procure a transcript minutes before the trial started, favoring this particular custom also places other important constitutional rights at stake. For example, a Defendant must file a Motion to Suppress 21 days after arraignment, Hawai’i Rules of Penal Procedure, Rules 12(c) and (f), waiving Rule 48 until the disposition of the Motion to Suppress. If the custom is favored over the written rules, such disposition could be years from the date of the arrest. Instead, defendants, such as Ms. DUI Defendant, rightfully expect “prompt disposition” of the motion as required by Rule 48. Presumably, this “prompt disposition” could be achieved in as little as 14 days following the filing of the Motion to Suppress. District Court Rules, Rule 8 (“[m]otions will be heard upon 14 days written notice unless otherwise ordered by the court . . .). And, in this case, the opportunity was certainly available for the court to promptly dispose of the Motion, the State having been ready to proceed on ____________ 20, 2010. Yet, the application of the unwritten “customs” and “usual practices” of the District Court in this case (and presumably all others) duped Ms. DUI Defendant into foregoing her entire statutory right to have the case dismissed if the trial was not had within six months, in favor of preserving her right against unreasonable search and seizure. Not only is it impermissible for a defendant to absolutely waive statutory speedy trial protection, Zedner v. United States, 547 U.S. 489 (2006), but also forcing a criminal defendant to forego one right in favor of the other is clearly unconstitutional. Simmons v. United States, 390 U.S. 377, 394 (1968) (“we find it intolerable that one constitutional right should have to be surrendered in order to assert another”). Accordingly, all courts, known to counsel, who have addressed similar issues have held that the Suppression Hearing should be separate and distinct from trial. See State v. Francis, 719 A.2d 858 (R.I. 1998); Commonwealth v. Love, 895 N.E.2d 744, 745 (Mass. 2008).
The ICA opinion should be reversed
The ICA erred in finding reasonable suspicion.
The only facts adduced by the State at the Suppression Hearing to justify the stop are that: Officer DUI Arrest Officer “thought the defendant was going to hit the back of [her] vehicle at a stop light;” Officer DUI Arrest Officer saw “in [her] mirror a car coming up on [her] real fast” and first saw the car when it was only 100 to 150 feet away from her vehicle; Officer DUI Arrest Officer “put [her] foot on the brake . . . and just waited to see if was going to hit [her] or not;” “within seconds” the car was “right on” Officer DUI Arrest Officer; the car came to a stop where Officer DUI Arrest Officer “couldn’t step between the two cars;” and Officer DUI Arrest Officer heard “brakes and squealing tires.” However, Officer DUI Arrest Officer did not recall smelling “burned rubber.” The Prosecutor also attempted to have Officer DUI Arrest Officer testify to the speed she believed the approaching car was traveling. However, counsel objected and the court properly disallowed the testimony because “there’s no foundation for that.”
These facts are not sufficient to lead “a man of reasonable caution [to] believe[e] that criminal activity was afoot.” State v. Barnes, 58 Haw. 333, 339, 568 P.2d 1207, 1211 (1977) (cited with approval in State v. Bohannon, 102 Hawai‘i 228, 237, 14 P.3d 980, 989 (2003)). There is simply nothing that would reasonably lead to an inference of criminal activity from these facts.
Nevertheless, the ICA held that Ms. DUI Defendant “unsuccessfully attempt[ed] to distinguish” the facts reviewed in the plurality opinion, Bohannon, supra. That decision defines the outside parameters of reasonable suspicion. And, importantly, since Bohannon, the ICA has declined to sustain a conviction for reckless driving when confronted with much more egregious facts. See State v. Moleta, 112 Hawai‘i 233, 236, 145 P.3d 776, 779 (App. 2006). Further, a number of key facts distinguish this case from Bohannon:
First, there is no evidence as to whether the lights of Officer DUI Arrest Officer’s vehicle were illuminated. Indeed, it was only after Officer DUI Arrest Officer saw the vehicle approaching her that she pressed the brake pedal, which would, presumably illuminate the brake lights.
Second, unlike the facts of Bohannon, there is no evidence in this case as to whether there was “nothing in the area to obstruct [Ms. DUI Defendant’s} view of Officer [DUI Arrest Officer’s] vehicle or the traffic lights ahead of her.”
Third, whereas in Bohannon, the screeching sound was heard for two seconds, in this case there is no evidence of how long Officer DUI Arrest Officer purportedly heard “the brake and tire” sounds that she neglected to write in her report. The fact that she did not remember smelling “burned rubber” indicates that the tires did not “squeal” for a sustained period of time. Thus, Ms. DUI Defendant’s car did not come to “a screeching halt” as Justices Moon and Levinson found in Bohannon.
Fourth, there is no evidence of how far Ms. DUI Defendant’s car stopped from Officer DUI Arrest Officer’s vehicle. Officer DUI Arrest Officer ambiguously testified that Officer DUI Arrest Officer was “unable to step between the two cars.” The State offered no proof as to whether Ms. DUI Defendant’s car stopped abnormally close to that of Officer DUI Arrest Officer.
Fifth, unlike the officer in Bohannon who testified that he initiated the traffic stop to “investigate whether [Bohannon] was operating the vehicle in a ‘safe and prudent manner,’” there is no evidence of why Officer DUI Arrest Officer stopped Ms. DUI Defendant.
Sixth, while Officer DUI Arrest Officer testified that following the stop, Ms. DUI Defendant had difficulty finding requested documents, there is no evidence that Ms. DUI Defendant did not immediately respond to the stop or appear “to be figuring out what was going on.” It took ten seconds for the defendant in Bohannon to respond to the officer’s signal to pull over.
The stop in this case is precisely the type of arbitrary investigatory stop foreshadowed by Justice Nakayama. To hold otherwise would permit a “stop-at-will” standard, against which American courts closely guard. See Brown v. Texas, 443 U.S. 47 (1979).
The lower court should be reversed and the evidence obtained from the unreasonable traffic stop should be suppressed.
The ICA erred in finding that the charge was valid.
The Complaint filed in this case and oral charge given Ms. DUI Defendant fails to allege the essential fact of the state of mind that is required to commit the offense of OVUII. The District Court was without jurisdiction to proceed in this matter and/or Ms. DUI Defendant had insufficient notice of the charge against which she was defending. Subsequent to the ICA opinion, this Court resolved this issue in Ms. DUI Defendant’s favor. State v. Kevin Nesmith, SCWC-10-0000072 ( ____________ 12, 2012). Indeed, on ____________ 1, 2012, this Court remanded a case, following trial, for dismissal pursuant to Nesmith, supra. State v. Thomas Bullard, SCWC-10-0000069 (May 1, 2012).
However, this Court should first decide whether this case should be dismissed with prejudice for either of the first two arguments discussed above, i.e., insufficiency of the evidence or a lack of reasonable suspicion. Ms. DUI Defendant observes that despite the District Court’s lack of subject matter jurisdiction over the matter initially, at the very least the suppression issue should determine this matter. If there were no reasonable suspicion, all evidence relied upon to determine probable cause should be suppressed. And since no charge can stand without probable cause, the matter should be dismissed with prejudice giving Ms. DUI Defendant the finality that she and the public deserve. Only if those issues are first resolved in favor of the State should this case be dismissed without prejudice pursuant to Nesmith, supra.
For each and all of the foregoing reasons, Appellant DUI Defendant respectfully requests that this Court accept certiorari and reverse the ICA opinion and the judgment of conviction entered against Ms. DUI Defendant on ____________ 20, 2010 be vacated and this case dismissed. Alternatively, Ms. DUI Defendant requests, at the very least, this case be remanded to the lower court for further findings.
DATED: Honolulu, Hawaii, ____________ 3, 2012.
RICHARD L. HOLCOMB 9177
Attorney for Appellant
I. Questions Presented