FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
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STATE OF HAWAII, Plaintiff-Appellee, v.
NICOLE N. COFFEE, Defendant-Appellant
NO. 23068
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT,
HONOLULU DIVISION
(HPD NO. 98-264970)
FEBRUARY 12, 2004
WATANABE, ACTING C.J., LIM AND FOLEY, JJ.
OPINION OF THE COURT BY FOLEY, J.
I.
On November 25, 1998, Defendant-Appellant Nicole N. Coffee (Coffee) was charged by complaint in the Circuit Court of the First Circuit (circuit court) with the following:
The circuit court remanded the case to the District Court of the First Circuit, Honolulu Division (district court) for a bench trial. On November 18, 1999, Coffee was found guilty of the DUI-Drug charge. (3) Coffee's motion to stay her sentence pending appeal was granted by the district court. Judgment was filed on October 9, 2003. On appeal, Coffee contends: (1) the district court erred in denying her motion to suppress evidence without holding a hearing or issuing findings of fact and conclusions of law; (2) the district court erred in taking judicial notice of Police Officer Sherman Dowkin's (Officer Dowkin) expertise as a Drug Recognition Expert and the 12-Step Drug Recognition Evaluation Matrix (matrix test) to recognize drug impairment; (3) the evidence was legally insufficient to support a DUI-Drug conviction; (4) Coffee received ineffective assistance of counsel; and (5) the district court erred in denying Coffee a jury trial.Count I, Driving Under the Influence of Drugs (DUI-Drug), in violation of Hawai`i Revised Statutes (HRS) § 291-7 (1993); (1) and
Count II, Noncompliance with Speed Limit, in violation of HRS § 291C-102(a) (1993). (2)
IV.
Coffee contends the district court erred when it took judicial notice of Officer Dowkin's qualifications as a Drug Recognition Expert (5) (DRE) and of the matrix test (6) as a
sufficient test to ascertain drug impairment. Specifically, Coffee contends that the court's taking judicial notice of the district court judge's prior decision in State v. Danny Wong was improper under Hawaii Rules of Evidence (HRE) Rules 201, (7) 702, (8) 702.1, (9) 703, (10) and 705. (11)
During Coffee's trial, as the State attempted to qualify Officer Dowkin as an expert in drug recognition, the district court intervened and the following exchange occurred between the court and the deputy prosecuting attorney:
THE COURT: It's my understanding that State vs. Danny Wong was taken judicial notice of. In that case, I believe, the Court qualified Mr. Dowkin as an [sic] DRE expert, as an expert, so why are we going through this?
[Deputy Prosecuting Attorney (DPA)] : Your Honor, well, if the defense is willing to -- I guess, the defense, if they would be willing to stipulate to these exhibits. They were unwilling to do so. Ms. [C]offee was not a defendant in this case. If the defense is willing to stipulate to these exhibits and to the testimony and exhibits of State vs. Wong, then I could save the time of going through this.
THE COURT: Well didn't I take judicial notice of State vs. Danny Wong?
[DPA]: Yes, your Honor, for purposes of the motion in limine. If the Court ---
THE COURT : It's my understanding, and correct me if I'm wrong, that in my decision, pending appeal of course, said witness stipulations inter alia, provide the following to be recited, in seriatim: Number one, the Wong case which is designated as the test case for the purpose of hearing movant's and movee's motions. Number two, in all other cases, including the cases captioned above, where movant, which is the Public Defender's Office, has filed motions, this Court may take judicial notice and incorporate into the record all said cases, all the motions, memoranda, transcripts, et cetera, in that case. This shall include all cases whether original jurisdiction is in Honolulu, Kaneohe, Ewa, Wahiawa, Waialua or Waianae Divisions, correct?
[DPA]: Yes, your Honor ---Following this discussion,the State's exhibits establishing Officer Dowkin's completion of his preliminary and classroom training, the Drug Recognition Evaluation Program, and his instructor training were admitted without objection by Coffee's counsel. Coffee's counsel did object to the admission of Officer Dowkin's drug recognition expert card because it was not the original of the card; the exhibit was received over Coffee's counsel's objection.
THE COURT: And this decision said: number one, the DRE program 12-step matrix was a valid test to ascertaining drug impairment; number two, that case further ruled Officer Dowkin was a qualified expert, is that correct?
[DPA]: Yes, your Honor.
THE COURT: Why do you have to go through all this?
[DPA]: Your Honor, based upon the Court's colloquy, I would ask that Officer Dowkin be qualified as an expert witness in this case.
We note that the record of the referenced test case, State v. Danny Wong, (12) is not before this court. The record in this case contains nothing more than references to the Wong case, and our review must be limited to the record before us. HRS § 641-2 (1993).
Judicial notice of an adjudicative fact is permissible if the fact is "not subject to reasonable dispute that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." HRE Rule 201.
In its answering brief, the State contends that the taking of judicial notice by the district court was proper because "[a]fter 'an extensive hearing' held in Wong , . . . Judge Kimura qualified Officer Dowkin as an [sic] DRE and ruled that 'the DRE program 12 step matrix was a valid test to ascertaining drug impairment[.]'" In support of this contention, the State relies on State v. Akana , 68 Haw. 164, 706 P.2d 1300 (1985), in which the Hawai`i Supreme Court noted that "[t]he most frequent use of judicial notice of ascertainable facts is in noticing the contents of court records." Id. at 165, 706 P.2d at 1302. The
State also relies on State v. Kotis, 91 Hawai`i 319, 984 P.2d 78 (1999), for the proposition that the "taking of judicial notice of the records and files of a case may or may not be proper, depending upon the type of record at issue and the purpose for which it is considered." Id. at 343, 984 P.2d at 102.
The Hawai`i Supreme Court has "validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same." Akana , 68 Haw. at 165, 706 P.2d at 1303. In the instant case, the district court took judicial notice of its prior determination that Officer Dowkin was qualified as a DRE and the matrix test was a valid test to ascertain drug impairment. Coffee was not a party in the Wong case. The district court acknowledged that not only was Coffee not a party in the Wong case, but also that Coffee's attorney was unfamiliar with and not privy to the court's prior ruling in Wong.
A judge's personal familiarity with his prior decision in a different case does not warrant the taking of judicial notice of that prior decision solely in the interest of judicial efficiency. The district court judge's taking such judicial notice denied Coffee a fair hearing because Coffee was not privy to the evidence offered in Wong nor afforded the opportunity to test, explain, or refute such evidence. Pua v. Hilo Tribune-Herald, Ltd., 31 Haw. 65, 69-70 (1929). A defendant must be fully appraised of the evidence submitted and be allowed to cross-examine witnesses, inspect the documents, and offer her own rebuttal or explanatory evidence. Id. at 70.
The State contends that the taking of judicial notice was proper because in Wong the Office of the Public Defender and the Office of the Prosecuting Attorney had stipulated that, after Wong, all other defendants in DUI-drug cases handled by the aforementioned offices would be precluded from re-litigating the same issues that had been ruled upon in Wong . However, as the record in Wong is not before this court, we cannot evaluate the reliability of the matrix test and Officer Dowkin's expertise to determine if they are "so well-established that their reliability may be presumed." State v. Ito, 90 Hawai`i 225, 236, 978 P.2d 191, 202 (1999).
The federal district court in United States v. Everett, supra, noted in its evaluation of the DRE program and the matrix test that,
unlike alcohol, where studies have been able to establish a direct measurement and correlation between the amount of alcohol in the system and the extent of impairment, with drugs there have been insufficient studies (and it may not be possible to do sufficient studies) to establish a comparable correlation between drug levels and impairment.
972 F. Supp. at 1317. The court held that the DRE "cannot testify, by way of scientific opinion, that the conclusion is an established fact by any reasonable scientific standard. In other words, the otherwise qualified DRE cannot testify as to scientific knowledge, but can as to 'specialized knowledge which will assist the trier of fact to understand the evidence.'" Id. at 1320 (quoting Federal Rules of Evidence Rule 702). The validity of the DRE's and matrix test's conclusions or the accuracy of the DRE's observations must be subject to impeachment, whether by cross-examination or other methods. Id. Clearly these were not the type of facts that were generally known within the territorial jurisdiction of the district court or capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned, as required for the taking of judicial notice. The district court plainly erred in taking judicial notice of these facts.
V.
Coffee's contention that there was insufficient evidence to sustain her DUI-Drug conviction is without merit. Viewing the evidence in the light most favorable to the State, we conclude that there was credible evidence of sufficient quality and probative value to enable a person of reasonable caution to conclude that the evidence supported Coffee's conviction. State v. Batson , 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992).
Coffee's contention that she was entitled to a jury trial is also without merit. State v. Sullivan , 97 Hawai`i 259, 36 P.3d 803 (2001).
Coffee's other points on appeal need not be addressed by this court given the disposition of her appeal.
VI.
Because the district court committed plain error in taking judicial notice of the district court judge's prior ruling in State v. Danny Wong that the 12-step Drug Recognition Evaluation Matrix was a valid test to ascertain drug impairment and that Officer Dowkin was a Drug Recognition Expert, we vacate the October 9, 2003 Judgment of the district court and remand this case for further proceedings.
Chris C. China
for defendant-appellant.
Mangmang Qiu Brown,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for plaintiff-appellee.
1. Hawaii Revised Statutes HRS) § 291-7 (1993) provides in relevant part:
§291-7 Driving under the influence of drugs. (a) A person commits the offense of driving under the influence of drugs if the person operates or assumes actual physical control of the operation of any vehicle while under the influence of any drug which impairs such person's ability to operate the vehicle in a careful and prudent manner. The term "drug" as used in this section shall mean any controlled substance as defined and enumerated on schedules I through IV of chapter 329.
2. HRS § 291C-102 (1993) provides in relevant part:
291C-102 Noncompliance with speed limit prohibited. (a) No person shall drive a vehicle at a speed greater than a maximum speed limit and no person shall drive a motor vehicle at a speed less than a minimum speed limit established by county ordinance.
3. The Honorable George Y. Kimura presided.
4. The Honorable Sandra A. Simms presided.
5. Use of the term of "expert" has been noted by other courts as presumptuous and somewhat invasive into the court's province of determining just who are experts. Currently, the term "expert" is being replaced with the term "examiner." See United States v. Everett, 972 F. Supp 1313, 1316 n.2 (D. Nev. 1997).
6. The Drug Recognition Evaluation Program was developed by the Los Angeles Police Department in the 1970's and early 1980's to train officers to recognize the behavioral and physiological symptoms associated with the major classes of psychoactive drugs. The program consists of a 12-step standardized evaluation conducted by a Drug Recognition Expert (DRE) and a toxicological analysis of a biological specimen to confirm or rebut the DRE's conclusions. Everett , 972 F. Supp. at 1316-17. However, the detection effort and the identification of which class of drugs are causing the impairment are further complicated because some drugs have a quicker onset of effect than others, some have longer duration, and some remain in the body system long after the impairing effects have subsided. Id. at 1317.
7. Hawaii Rules of Evidence (HRE) Rule 201 provides in relevant part:
Rule 201 Judicial notice of adjudicative facts. (a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
8. HRE Rule 702 provides:
Rule 702 Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.
9. HRE Rule 702.1 provides:
Rule 702.1 Cross-examination of experts. (a) General. A witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be cross-examined as to (1) the witness' qualifications, (2) the subject to which the witness' expert testimony relates, and (3) the matter upon which the witness' opinion is based and the reasons for the witness' opinion.
(b) Texts and treatises. If a witness testifying as an expert testifies in the form of an opinion, the witness may be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication only if:
(1) The witness referred to, considered, or relied upon such publication in arriving at
or forming the witness' opinion, or
(2) Such publication qualifies for admission into evidence under rule 803(b)(18).
10. HRE Rule 703 provides:
Rule 703 Bases of opinion testimony by experts . The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court may, however, disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.
11. HRE Rule 705 provides:
Rule 705 Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give the expert's reasons therefor without disclosing the underlying facts or data if the underlying facts or data have been disclosed in discovery proceedings. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
12. The appeal in State v. Wong , S. Ct. No. 22505 was dismissed by stipulation of the parties on November 16, 1999.