NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 29-JAN-2021 07:45 AM Dkt. 58 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. STEPHEN LUCKRY, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HONOLULU DIVISION) (CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Defendant-Appellant Stephen Luckry (Luckry) appeals
from the April 17, 2019 Notice of Entry of Judgment and/or Order
(Judgment) and the May 10, 2019 (Amended) Notice of Entry of
Judgment and/or Order (Amended Judgment) entered by the Honolulu
Division of the District Court of the First Circuit (District
Court).1 Luckry was convicted of Operating a Vehicle Under the
1 The Honorable William M. Domingo and the Honorable John A. Montalbano presided, respectively. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2019).2
Luckry raises two points of error on appeal, contending
that: (1) the District Court abused its discretion when it
excluded two instances of Honolulu Police Department (HPD)
Officer Jason Spiker's (Officer Spiker) previous falsehoods; and
(2) there was insufficient evidence to convict Luckry.
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 Luckry's points of error as follows:
(1) Luckry argues that the District Court erred when
it prohibited him from impeaching Officer Spiker with evidence of
two prior instances of Officer Spiker's conduct that were
probative of untruthfulness. Luckry argues that this evidence
was admissible under Hawai#i Rules of Evidence (HRE) Rule 608(b),
2 HRS § 291E-61(a) states in relevant part:
§ 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2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
it was an abuse of discretion to preclude it, and the District
Court's error was not harmless beyond a reasonable doubt.
HRE Rule 608(b) provides, in relevant part:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking the witness' credibility, if probative of untruthfulness, may be inquired into on cross-examination of the witness and, in the discretion of the court, may be proved by extrinsic evidence.
(Emphasis added).
In State v. Su, 147 Hawai#i 272, 283, 465 P.3d 719, 730
(2020), the Hawai#i Supreme Court explained: [U]nder the plain language of HRE Rule 608(b), admissibility of evidence under HRE Rule 608(b) involves a two-step inquiry: (1) whether the specific conduct evidence proffered for the purpose of attacking the witness's credibility is probative of untruthfulness, and, if so, (2) whether the probative value of the evidence of the specific conduct is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence pursuant to HRE Rule 403. An appellate court reviews the trial court's two- step admissibility determination under the right/wrong standard as to the first step, and under the abuse of discretion standard as to the second step.
In Su, the supreme court examined a trial court ruling
disallowing the cross-examination of Officer Spiker (the same
Officer Spiker as in this case) about his testimony in three
prior proceedings (the same prior proceedings raised by Luckry in
this case). Id. at 274, 465 P.3d at 721. Discussing and
applying its two-step analysis, the supreme court concluded that
the trial court erred in the first step, with respect to the
cross-examination of Officer Spiker concerning two of those
proceedings: (1) in one proceeding, the Kuni ADLRO proceeding,
Officer Spiker admitted that he submitted a falsely sworn
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
statement to the ADLRO, which clearly called his credibility into
question; and (2) in a second proceeding, the Thomas harassment
trial, still photos of a video-recording showed that, contrary to
Officer Spiker's police report and testimony, the defendant did
not have his fists clenched and was not throwing punches. Id. at
285, 465 P.3d at 732; see also State v. Estrada, 69 Haw. 204,
219, 738 P.2d 812, 823 (1987) (holding that an officer's alleged
falsifications on his employment application were relevant to his
credibility and should have been admitted pursuant to HRE Rule
608(b)). With respect to the third proceeding, the Lee OVUII
trial, the supreme court held that a court's rejection of Officer
Spiker's estimate of distance and speed, because it did not make
sense, was not relevant to his credibility. Su, 147 Hawai#i at
285, 465 P.3d at 732.
Here, the District Court allowed Officer Spiker to be
cross-examined as to the Kuni ADLRO proceeding, but not the
Thomas and Lee matters. Relevant to this appeal, Luckry thus
contends the District Court erred in not allowing him to cross-
examine Officer Spiker concerning the second and third specific
instances of conduct addressed by the supreme court in Su. As
the supreme court held in Su, here, the District Court erred in
the first step of the Rule 608(b) analysis with respect to the
cross-examination of Officer Spiker concerning the Thomas
proceeding in which still photos of a video-recording showed
that, contrary to Officer Spiker's police report and testimony,
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the defendant did not have his fists clenched and was not
throwing punches. See id. at 285, 465 P.3d at 732.
However, as the supreme court held in Su, the trial
court's rejection of Officer Spiker's estimate of distance and
speed in the Lee proceeding, because it did not make sense, was
not relevant to his credibility. Id. Therefore, here, the
District Court did not err in disallowing Luckry's cross-
examination of Officer Spiker about the Lee case, which involved
testimony that did not make sense.
In this case, Officer Spiker testified as to, inter
alia, his observations of Luckry's driving that led to the
traffic stop, as well as Officer Spiker's observation of the odor
of alcohol coming from Luckry's breath, Luckry's appearance and
slurred speech, and Luckry's statement that "he had a six pack."
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 29-JAN-2021 07:45 AM Dkt. 58 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. STEPHEN LUCKRY, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HONOLULU DIVISION) (CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Defendant-Appellant Stephen Luckry (Luckry) appeals
from the April 17, 2019 Notice of Entry of Judgment and/or Order
(Judgment) and the May 10, 2019 (Amended) Notice of Entry of
Judgment and/or Order (Amended Judgment) entered by the Honolulu
Division of the District Court of the First Circuit (District
Court).1 Luckry was convicted of Operating a Vehicle Under the
1 The Honorable William M. Domingo and the Honorable John A. Montalbano presided, respectively. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2019).2
Luckry raises two points of error on appeal, contending
that: (1) the District Court abused its discretion when it
excluded two instances of Honolulu Police Department (HPD)
Officer Jason Spiker's (Officer Spiker) previous falsehoods; and
(2) there was insufficient evidence to convict Luckry.
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 Luckry's points of error as follows:
(1) Luckry argues that the District Court erred when
it prohibited him from impeaching Officer Spiker with evidence of
two prior instances of Officer Spiker's conduct that were
probative of untruthfulness. Luckry argues that this evidence
was admissible under Hawai#i Rules of Evidence (HRE) Rule 608(b),
2 HRS § 291E-61(a) states in relevant part:
§ 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
it was an abuse of discretion to preclude it, and the District
Court's error was not harmless beyond a reasonable doubt.
HRE Rule 608(b) provides, in relevant part:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking the witness' credibility, if probative of untruthfulness, may be inquired into on cross-examination of the witness and, in the discretion of the court, may be proved by extrinsic evidence.
(Emphasis added).
In State v. Su, 147 Hawai#i 272, 283, 465 P.3d 719, 730
(2020), the Hawai#i Supreme Court explained: [U]nder the plain language of HRE Rule 608(b), admissibility of evidence under HRE Rule 608(b) involves a two-step inquiry: (1) whether the specific conduct evidence proffered for the purpose of attacking the witness's credibility is probative of untruthfulness, and, if so, (2) whether the probative value of the evidence of the specific conduct is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence pursuant to HRE Rule 403. An appellate court reviews the trial court's two- step admissibility determination under the right/wrong standard as to the first step, and under the abuse of discretion standard as to the second step.
In Su, the supreme court examined a trial court ruling
disallowing the cross-examination of Officer Spiker (the same
Officer Spiker as in this case) about his testimony in three
prior proceedings (the same prior proceedings raised by Luckry in
this case). Id. at 274, 465 P.3d at 721. Discussing and
applying its two-step analysis, the supreme court concluded that
the trial court erred in the first step, with respect to the
cross-examination of Officer Spiker concerning two of those
proceedings: (1) in one proceeding, the Kuni ADLRO proceeding,
Officer Spiker admitted that he submitted a falsely sworn
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
statement to the ADLRO, which clearly called his credibility into
question; and (2) in a second proceeding, the Thomas harassment
trial, still photos of a video-recording showed that, contrary to
Officer Spiker's police report and testimony, the defendant did
not have his fists clenched and was not throwing punches. Id. at
285, 465 P.3d at 732; see also State v. Estrada, 69 Haw. 204,
219, 738 P.2d 812, 823 (1987) (holding that an officer's alleged
falsifications on his employment application were relevant to his
credibility and should have been admitted pursuant to HRE Rule
608(b)). With respect to the third proceeding, the Lee OVUII
trial, the supreme court held that a court's rejection of Officer
Spiker's estimate of distance and speed, because it did not make
sense, was not relevant to his credibility. Su, 147 Hawai#i at
285, 465 P.3d at 732.
Here, the District Court allowed Officer Spiker to be
cross-examined as to the Kuni ADLRO proceeding, but not the
Thomas and Lee matters. Relevant to this appeal, Luckry thus
contends the District Court erred in not allowing him to cross-
examine Officer Spiker concerning the second and third specific
instances of conduct addressed by the supreme court in Su. As
the supreme court held in Su, here, the District Court erred in
the first step of the Rule 608(b) analysis with respect to the
cross-examination of Officer Spiker concerning the Thomas
proceeding in which still photos of a video-recording showed
that, contrary to Officer Spiker's police report and testimony,
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the defendant did not have his fists clenched and was not
throwing punches. See id. at 285, 465 P.3d at 732.
However, as the supreme court held in Su, the trial
court's rejection of Officer Spiker's estimate of distance and
speed in the Lee proceeding, because it did not make sense, was
not relevant to his credibility. Id. Therefore, here, the
District Court did not err in disallowing Luckry's cross-
examination of Officer Spiker about the Lee case, which involved
testimony that did not make sense.
In this case, Officer Spiker testified as to, inter
alia, his observations of Luckry's driving that led to the
traffic stop, as well as Officer Spiker's observation of the odor
of alcohol coming from Luckry's breath, Luckry's appearance and
slurred speech, and Luckry's statement that "he had a six pack."
In issuing its decision, the District Court found that the
testimonies of Officer Spiker and the other testifying officers
were "the more credible testimon[ies]," in comparison to the
testimonies of Luckry and the other defense witness.
The District Court in this case did not specifically
rule on whether the prior proceedings were relevant, as is
required under the two-part analysis discussed in Su. However,
as discussed above, one of the prior proceedings that Luckry
sought to raise in cross-examination was relevant to Officer
Spiker's credibility and probative of untruthfulness. On remand,
based on the first prong of the Su/HRE Rule 608(b) analysis,
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Luckry is entitled to cross-examine Officer Spiker as to that
matter. However, the extent of the cross-examination and the
admissibility of any extrinsic evidence that might be offered
remain subject to an HRE Rule 403 analysis pursuant to the second
prong of the Su analysis. See Su, 147 Hawai#i at 285, 465 P.3d
at 732.
As Officer Spiker's testimony was central to Luckry's
conviction, we cannot conclude that the District Court's error in
precluding, inter alia, all references to the prior Thomas
proceeding was harmless beyond a reasonable doubt. See id.
(citation omitted).
(2) Luckry argues that the State failed to present
substantial evidence that Luckry operated his vehicle while under
the influence of alcohol in an amount sufficient to impair his
normal faculties or ability to care for himself and guard against
casualty. Luckry admits that the State presented some evidence
of intoxication, but submits that the evidence at trial may be
construed differently, in a manner that would not lead to
conviction for OVUII.
We conclude that, when the evidence adduced at trial is
considered in the strongest light for the prosecution, there was
sufficient evidence to convict Luckry of OVUII. See State v.
Matavale, 115 Hawai‘i 149, 157-58, 166 P.3d 322, 330-31 (2007).
"[E]ven if it could be said [] that the conviction is against the
weight of the evidence, as long as there is substantial evidence
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to support the requisite findings for conviction, the trial court
will be affirmed." State v. Xiao, 123 Hawai#i 251, 257, 231 P.3d
968, 974 (2010) (citation omitted).
Officer Spiker testified that, on March 3, 2018, he
observed Luckry driving a red truck in the middle of three lanes,
directly in front of him, and the truck drifted into the far
right lane, with tires crossing the lane markings by about two
feet, almost colliding with parked vehicles, before jerking back
into its lane. This occurred two or three times. After the
traffic stop, when speaking with Luckry, Officer Spiker could
detect a strong odor of an alcoholic beverage on Luckry's breath.
Officer Spiker observed that Luckry had red, watery, bloodshot
eyes, a flushed face, and slurred speech. Officer Spiker
testified that Luckry told him that he had "a six pack and that
he was okay to drive after three beers."
HPD Officer Mitchell Cadina (Officer Cadina) testified
about his training with HPD to administer and evaluate a
Standardized Field Sobriety Test (SFST) and described the three
tests comprising the SFST and his administration of them to
Luckry. Officer Cadina testified, inter alia, that when he
administered the horizontal gaze nystagmus (HGN) test to Luckry,
he smelled a strong odor of an alcoholic beverage on Luckry's
breath and he observed that Luckry's eyes were red, watery,
glassy, and bloodshot. During the HGN test, he had to remind
Luckry "numerous times" to keep his head still. With respect to
7 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the walk-and-turn test, Officer Cadina instructed Luckry as to
how to perform the test, Officer Cadina demonstrated how to do
it, and Luckry stated that he understood. Officer Cadina
testified that Luckry lost his balance once during the
instructional stage and started too soon. During the test,
Luckry stopped multiple times, missed heel-to-toe contact
numerous times, and raised his arms, all contrary to the
instructions. With respect to the one-leg-stand test, Officer
Cadina instructed Luckry as to how to perform the test, Officer
Cadina demonstrated in part how to do it, and Luckry stated that
he understood. After Luckry started the test, he swayed in all
directions, moved his arms more than six inches from his body,
and discontinued the test after about ten seconds.
Based on our review of all of the evidence presented at
trial, we conclude that, when the evidence adduced at trial is
considered in the light strongest for the prosecution, there was
substantial evidence to convict Luckry of OVUII, notwithstanding
some conflicting evidence.
8 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
For these reasons, the District Court's April 17, 2019
Judgment and May 10, 2019 Amended Judgment are vacated, and this
case is remanded to the District Court for a new trial.
DATED: Honolulu, Hawai#i, January 29, 2021.
On the briefs: /s/ Lisa M. Ginoza Sara K. Haley, Chief Judge Deputy Public Defender, for Defendant-Appellant. /s/ Katherine G. Leonard Associate Judge Stephen K. Tsushima, Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth City and County of Honolulu, Associate Judge for Plaintiff-Appellee.