State v. Kelleher

479 P.3d 926, 149 Haw. 4

• Court: Hawaii Intermediate Court of Appeals
• Decided: February 5, 2021
• Docket: CAAP-19-0000386
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 05-FEB-2021 07:51 AM Dkt. 40 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v. TIMOTHY KELLEHER, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HONOLULU DIVISION) (CASE NO. 1DTA-18-01270)

SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Timothy Kelleher (Kelleher) appeals

from the Notice of Entry of Judgment and/or Order and

Plea/Judgment entered on May 25, 2018 (Judgment),1/ and the Notice

of Entry of Judgment and/or Order and Plea/Judgment entered on

April 17, 2019 (Final Judgment),2/ in the District Court of the

First Circuit, Honolulu Division (District Court). Kelleher was

convicted of Operating a vehicle under the influence of an

1/ The Honorable Sherri-Ann Iha presided. 2/ The Honorable Summer Kupau-Odo presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)

§ 291E-61(a)(1) (Supp. 2019).3/

Kelleher raises three points of error on appeal,

contending that: (1) the District Court abused its discretion in

allowing Honolulu Police Department Officer Ty Ah Nee (Officer Ah

Nee) to testify as to Kelleher's alleged speed because the State

of Hawai#i (State) failed to lay the requisite foundation for

Officer Ah Nee's testimony; (2) the District Court erred in

denying in part Kelleher's motion to suppress; and (3) without

the improperly admitted evidence, there was no substantial

evidence to support Kelleher's conviction.

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 Kelleher's points of error as follows:

(1) The Hawai#i Supreme Court has held that to

establish that an officer was properly qualified to operate a

laser speed-reading gun "requires a showing as to both (1) the

training requirements set forth by the manufacturer, and (2) the

3/ HRS § 291E-61(a)(1) provides:

§ 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[.]

2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

training actually received by the operator of the laser gun."

State v. Apollonio, 130 Hawai#i 353, 362, 311 P.3d 676, 685

(2013).

Citing State v. Rezentes, CAAP-XX-XXXXXXX, 2016 WL

6330390, *1 (Haw. App. Oct. 28, 2016) (SDO), Kelleher argues that

Officer Ah Nee's testimony regarding the manufacturer of the

subject LIDAR speed-reading device was incorrect because the

subject laser device was manufactured by Applied Concepts, not

Stalker; and thus, Officer Ah Nee's testimony lacked the proper

foundation as to the training required by the manufacturer to

operate the device. In Rezentes, this court held that the State

established, through an officer's testimony, that the officer's

"training in the use of the Stalker radar gun met the

requirements indicated by the manufacturer," Applied Concepts.

Id. at *1 (underlined emphasis added). Rezentes involved a radar

gun which was tested by, inter alia, using a tuning fork.

Rezentes, 2016 WL 6330390 at *2. This case involves a LIDAR

laser device; Officer Ah Nee testified, inter alia, as to four

tests used to establish that the device was working properly

(none of which used a tuning fork, as used to calibrate the radar

device at issue in Rezentes). Therefore, Rezentes cannot be the

basis for determining the manufacturer of Officer Ah Nee's LIDAR

laser device in this case.

Here, Officer Ah Nee testified, inter alia, that he was

trained by Steve Hawker, one of the engineers that designed the

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Stalker XLR LIDAR device, a laser device, that Officer Ah Nee

used to measure Kelleher's speed. Officer Ah Nee testified as to

how he was trained by, inter alia, going over the manufacturer's

manual word-by-word. He specifically testified that the manual

was published or approved by the manufacturer, and he knew that

because the manual had the manufacturer's name on it (Stalker),

the company logo, insignia, and copyright information, and that

his training followed the manual. Kelleher points to no

conflicting evidence, and we find none; Kelleher does not

otherwise contend that the actual training received by Officer Ah

Nee in the operation of the laser gun was insufficient. Thus, we

reject Kelleher's argument that the State failed to meet its

foundational burden in this regard. Based upon our review of the

entirety of Officer Ah Nee's testimony, we conclude that the

District Court did not abuse its discretion in allowing Officer

Ah Nee to testify as to Kelleher's speed as measured by the LIDAR

device at issue in this case.

(2) Kelleher argues that the testimony concerning

observations of Kelleher's performance on a field sobriety test

should have been suppressed because he was not advised of his

pre-arrest right to remain silent, as required by State v.

Tsujimura, 140 Hawai#i 299, 400 P.3d 500 (2017), and he was not

advised of his Miranda rights when he was subjected to custodial

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interrogation.4/ Tsujimura is inapplicable to this case because

Kelleher was asked to participate in, and Kelleher agreed to

participate in, the field sobriety test, and the State did not

seek to introduce and use evidence of Kelleher's silence against

him at trial. State v. Uchima, 147 Hawai#i 64, 83, 464 P.3d 852,

871, (2020). We note that the District Court granted in part

Kelleher's motion to suppress, suppressed his other statements,

and only allowed evidence of Kelleher's non-verbal responses,

i.e., Kelleher's physical performance on the field sobriety test.

Kelleher's physical performance on the field sobriety test did

not constitute incriminating statements or result from an

interrogation requiring Miranda warnings. Id. at 84-85, 464 P.3d

at 872-73; see also State v. Wyatt, 67 Haw. 293, 302-03, 687 P.2d

544, 551 (1984). Accordingly, we conclude that the District

Court did not err in denying in part Kelleher's motion to

suppress.

(3) Kelleher contends that, without the above-

referenced improperly admitted evidence, there is insufficient

evidence to convict him of OVUII. As we have rejected Kelleher's

arguments that this evidence was improperly admitted, we conclude

that Kelleher's final point of error is without merit.

4/ See Miranda v. Arizona, 384 U.S. 436 (1966).

5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

For these reasons, the District Court's May 25, 2018

Judgment and April 17, 2019 Final Judgment are affirmed.

DATED: Honolulu, Hawai#i, February 5, 2021.

On the briefs: /s/ Lisa M. Ginoza Alen M. Kaneshiro, Chief Judge for Defendant-Appellant. /s/ Katherine G. Leonard Stephen K. Tsushima, Associate Judge Deputy Prosecuting Attorney, City and County of Honolulu, /s/ Keith K. Hiraoka for Plaintiff-Appellee. Associate Judge