NOT FOR PUBLICATION
NO. 24872
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
STATE
OF HAWAI`I, Plaintiff-Appellee, v.
DANUAL E. MARTIN, Defendant-Appellant
APPEAL
FROM THE FIRST CIRCUIT COURT
(CR. NO. 98-1650)
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Watanabe and Foley, JJ.)
Martin was charged with and convicted of Promoting a Dangerous Drug in the Third Degree in violation of Hawaii Revised Statutes (HRS) § 712-1243 (1993 & Supp. 2001). (2)
On appeal, Martin contends (1) the circuit court erred by partially denying his Motion to Suppress Evidence and Statements, (2) the circuit should have suppressed Martin's statement to Officer Obara, and (3) Martin was provided with ineffective assistance of counsel.
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 Martin's points of error as follows:
(1) Martin contends the circuit court erred by partially denying his Motion to Suppress Evidence and Statements because there was no probable cause to arrest him. The circuit court did not err by partially denying Martin's Motion to Suppress Evidence and Statements. There was probable cause to arrest Martin, and the evidence seized was found as a search incident to arrest. State v. Naeole, 80 Hawai`i 419, 424, 910 P.2d 732, 737 (1996).
(2) Martin contends his statement to Officer Obara was fruit of the poisonous tree and the court should have excluded it under the principles in State v. Pebria, 85 Hawai`i 171, 938 P.2d 1190 (App. 1997). The principles set forth in Pebria do not apply to this case. Assuming arguendo that such principles do apply, Martin waived any error in admitting his statement when he agreed that it would be introduced as evidence.
(3) Martin contends that he was provided with ineffective assistance of counsel. When viewed as a whole, the assistance provided to Martin was "within the range of competence demanded of attorneys in criminal cases." Dan v. State, 76 Hawai`i 423, 427, 879 P.2d 528, 532 (1994) (internal quotation marks and citation omitted).
THEREFORE,
It is hereby ordered that the Judgment filed on January 16, 2002 in the Circuit Court of the First Circuit is affirmed.
DATED: Honolulu,
Hawai`i, May 14, 2004.
On the briefs:
Daniel H. Shimizu,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for plaintiff-appellee.
1. The Honorable Wilfred K. Watanabe presided.
2. Hawaii Revised Statutes (HRS) § 712-1243 (1993 & Supp. 2001) provides: