NOT FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
STATE
OF
HAWAI`I, Plaintiff-Appellee, v.
LINO PATUBO,
JR., Defendant-Appellant
APPEAL
FROM
THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO.
00-1-0514)
MEMORANDUM OPINION
(By: Burns,
C.J., Watanabe and Foley, JJ.)
and sentencing him to concurrent five (5) year terms of probation for each count and to pay a $400 Crime Victim Compensation Fee and $500 for a Drug Demand Reduction Assessment.
On appeal, Patubo asserts the following points of error:
(1)
at the motion to suppress hearing, the circuit court
made erroneous findings of facts in FOF 15, 17, 18, 19 and 20;
(2)
the court made an erroneous conclusion of law in
Conclusion of Law #1;
(3)
at trial, the prosecutor made reference to an
illegal, unlicensed business; and thus deprived Patubo of a fair trial;
and
(4) the prosecutor improperly asked Patubo whether prosecution witnesses were lying and therefore, deprived Patubo of a fair trial.
We affirm.
A. Factual Background
On January 21, 1999, Police Officer Ron Pinho-Goldman (Officer
Pinho-Goldman) was patrolling his area at around 1:41 p.m. when he
noticed that a "red four-door Toyota Camry was parked facing the wrong
direction and blocking a fire hydrant, and . . . what appeared to be a
garden hose sticking out of the gas tank." When
Officer Pinho-Goldman ran a check on the red Toyota's license plate,
which was "FPU 263", he was informed the license plate belonged to "an
'85 Ford multipurpose vehicle, blue." He noticed that the ignition had
been "punched"(4)
and made a call requesting back up. He also called in the vehicle identification
number (VIN) that was on the red Toyota and was informed that the
vehicle with that VIN had been reported stolen. While he was waiting for
other officers to appear, he noticed another passenger vehicle parked
down the street fronting the driveway. It was a white Mazda four-door and it
also was facing the wrong direction in traffic. The license plate on
the white Mazda should have been on a brown Mazda. Officer Pinho-Goldman checked for a VIN
plate in order to run the VIN number but saw that the VIN plate was
missing. Soon thereafter, police officers Keaka
Atkinson (Officer Atkinson), Charles Skaggs (Officer Skaggs) and Mark
Tom (Officer Tom) arrived. (5)
Officer Atkinson noted that a third
automobile, a Bronco parked between the red Toyota and the
white Mazda, had a "punched" ignition and an interior that looked as if
it had been dismantled. The white Mazda was parked
in front of the driveway of Patubo's residence. Officer
Pinho-Goldman went up to that residence to determine if anyone may have
"witnessed the vehicle being dropped off over there, or if they knew
who it belonged to." Patubo answered the door and explained that the
white Mazda "belonged to a friend of his, and [Patubo's] daughter had
dropped it off over there." Officer Pinho-Goldman then
asked Patubo whether there was anyone else in the house and Patubo
replied that "nobody else was in the house."
(6) When Officer Pinho-Goldman explained that he
needed to verify
the
identity of the vehicle, Patubo responded that he had the keys. Officer
Atkinson testified that when Patubo went into his house to obtain those
keys, and subsequently when Patubo went into his house to obtain his
wallet containing his identification, Officer Atkinson accompanied
Patubo "[p]rimarily to make sure [Patubo] didn't come out with any
weapons or anything that could injure other officers." With the keys provided by Patubo, Officer Pinho-Goldman
obtained
access to the white Mazda. The VIN plate on its door was missing, but
Officer Pinho-Goldman eventually found the VIN on the "firewall inside
the engine compartment." Dispatch told Officer Pinho-Goldman that there
was no record of that VIN. Officer Pinho-Goldman described Patubo's
overall demeanor as being "very cooperative" and "calm" and denied
making or hearing any threats or promises to Patubo if he did or did
not cooperate with the police. While Officer Pinho-Goldman was talking to Patubo, Officer
Skaggs
was observing Patubo. He noted that Patubo's behavior was normal. He
overheard Patubo telling Officer Pinho-Goldman that there was no one in
the house. As Patubo and Officer Pinho-Goldman were walking towards the
car port, Officer Skaggs heard a "large crash" that "sounded like it
came from the back side of the house 'cause if it was by the front
door, I would have seen something fall down." The noise sounded as if
"somebody was moving around in the house." Officer Skaggs testified
that he again asked Patubo, "Is there anyone else in the house that we
need to know about?" Patubo replied, "No." Officer Skaggs then asked
whether "it would be all right if I went to the house, look around,
make sure no one's in the house." Patubo gave him a blank look and
"didn't say yes, didn't say no." Nonetheless, Officer Skaggs entered
the house "to secure the area to make sure there's no one else in the
house, and if there was, we weren't in any threat." Officer Skaggs
entered all the rooms that had unlocked doors. In the living room, he
saw what "looks like books on the ground from somebody passing by
banging on the stand." On the living room couch, Officer Skaggs
observed license plate "HRT 803" and he obtained possession of it. That
was the license plate for the red Toyota. Officer Skaggs did not see
anyone else in the house. When he came out of the house, he gave
Officer Pinho-Goldman the HRT 803 license plate. After the other officers arrived, Sergeant Clayton Chung
(Sergeant
Chung) arrived at around 2:51 p.m. When Detective Jeffrey Bruchal
(Detective Bruchal) subsequently arrived, Officer Pinho-Goldman and
Sergeant Chung briefed him of the situation. A decision was made for
Detective Bruchal to ask Patubo for consent to search his house. (7) Detective Bruchal
testified that
he followed standard procedures including
writ[ing] . . . on the form, the address, and . . . all the things that we would be looking for in the his area. We had suspected that there was a stolen vehicle, and possibly a defacing of serial numbers of vehicles going on at that particular address, so I would indicate that on the form, and the things I would be looking for would be license plates, vehicle identification of plates, tools that would be used to commit auto theft or defacing of serial numbers.
I understand that the Police are searching for evidence of the crime of auto theft, defaced serial number, more specifically (robbery, burglary, etc.) burglary, theft
In contrast, Patubo testified, in relevant part, as follows:
Q Y ou signed some form? Were you able to read them?
Q Why not?
Q Where were they?
Q And why didn't you go get them?
Q Did you try?
Q Who did you ask?
Q And they wouldn't let you?
. . . .
A No, sir.
A Uh, I don't use the glasses all the time. It just happened that day I didn't have that with me.
In one of the bedrooms, the officers found (a) contraband in closed containers and (b) a man hiding under a large pile of clothing. The man was Russell Yamaguchi. The items recovered from the search included: "car keys and lock keys, a computer-chip device apparently used for disabling car alarms, a 16 inch screwdriver, a homemade tool which could be used to force entry into motor-vehicles, crystal methamphetamine, marijuana, drug paraphernalia, and items of identification belonging to [Patubo]."B. Procedural Background
On March 2, 2001, Patubo filed a Motion to Suppress Evidence (a) procured during the search of 920 Paaaina Street, Paarl City and (b) arising out of his arrest for drug-related offenses because (1) his consent was coerced, (2) the search went beyond the scope of the illegally obtained Consent to Search Form as well as that justified by probable cause, (3) the search of a number of closed containers in which drugs and drug-related materials were found by Officer Tom in bedroom number three without his consent and without a warrant was violative of his rights to privacy and freedom from unreasonable searches and seizures because the closed containers could not have held items which the police were searching for and there were no exigent circumstances justifying a warrantless search. A hearing on this motion was held on May 15, 2001, with further hearings on June 5, 2001, July 24, 2001, August 28, 2001, and August 30, 2001. On October 3, 2001, the court entered its Findings of Fact, Conclusions of Law and Order Denying Motion to Suppress Evidence, in relevant part, as follows:
FINDINGS OF FACT
5.
While on routine patrol, Honolulu
Police officer Ronald Pinho-Goldman (Pinho-Goldman) came upon an
unusually positioned red
Toyota Camry, displaying
Hawaii license plate
FPU 263, on the street in front of the Defendant's home -- its interior
was stripped
and wires hung from the
ignition.
7.
A white Mazda automobile, parked
in front of the Defendant's driveway, bore license plates belonging to
another vehicle, and its
vehicle identification
number (VIN) had been
removed.
9.
Answering Pinho-Goldman's knock
and inquiry, the Defendant stated he had no knowledge of the red Camry,
but that his daughter
used the white Mazda.
11.
Officers were able to glean
through lawful observations that several of the vehicles in the
defendant's driveway had missing license
plates and/or VIN
numbers. Car
parts were also lying about.
13.
The court finds Bruchal to have
been very credible on the process used to obtain the defendant's
consent to search the residence:
Bruchal read the
entire form to the
Defendant while the Defendant read along.
15.
The Defendant signed the consent
to search form knowingly and voluntarily. Accordingly, the search and
recovery of all items was
valid.
17.
Nonetheless, the court finds it
was not unreasonable for Skaggs to enter the house when he believed he
heard loud crashing
sounds from inside,
whether or not the defendant
gave him permission to enter.
19.
On these facts, it was proper for
Skaggs to briefly enter the residence for the limited purpose of making
sure there was no threat to
officers, occupants,
or evidence.
CONCLUSIONS OF LAW
2. Accordingly, suppression of the evidence is unwarranted.
(Citations omitted.)A seven-day jury trial began on February 27, 2002 and ended on March 12, 2002. The jury found Patubo guilty as charged on all four counts. Judgment was entered on July 23, 2002. Patubo filed a notice of appeal on August 22, 2002. This appeal was assigned to this court on June 18, 2003.
STANDARDS OF REVIEW
Consequently, a trial court's ruling on a motion to suppress is reviewed de novo to determine whether the ruling was right or wrong as a matter of law. State v. Kauhi, 86 Hawai`i 195, 197, 948 P.2d 1036, 1038 (1997) (citation omitted).
[W]hen a defendant's motion to suppress evidence is denied prior to trial, the defendant need not object at trial to the introduction of the evidence to preserve his or her right to appeal the pretrial denial of his or her motion to suppress and the introduction of the evidence at trial.
State v. Kong, 77 Hawai`i 264, 266, 883 P.2d 686, 688 (App. 1994) (citations omitted).Kong, 77 Hawai`i at 266, 883 P.2d at 688 (citations omitted).
2. Plain error
Hawai`i Rules of Penal Procedure Rule 52(b) states that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Therefore, an appellate court "may recognize plain error when the error committed affects substantial rights of the defendant." State v. Davia, 87 Hawai`i 249, 253, 953 P.2d 1347, 1351 (1998) (internal quotation marks and citation omitted).
The appellate court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Vanstory, 91 Hawai`i 33, 42, 979 P.2d 1059, 1068 (1999) (internal quotation marks and citation omitted).
This court's power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system--that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes.
Id. at 42, 979 P.2d at 1068 (quoting State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993)).3. Prosecutorial Misconduct
"Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to the defendant's right to a fair trial." State v. Mara, 98 Hawai`i 1, 16, 41 P.3d 157, 172 (2002) (quoting State v. McGriff, 76 Hawai`i 148, 158, 871 P.2d 782, 792 (1994)). Misconduct "when applied to an act of an attorney, implies a dishonest act or an attempt to persuade the court or jury by use of deceptive or reprehensible methods." State v. Palabay, 9 Haw.App. 414, 429, 844 P.2d 1, 9 (1993) (citations omitted).
Prosecutorial misconduct is "reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. St. Clair, 101 Hawai`i 280, 286, 67 P.3d 779, 785 (2003) (citations and internal quotation marks omitted). The prosecution bears the burden of showing that the misconduct was harmless beyond a reasonable doubt. State v. Smith, 91 Hawai`i 450, 461, 984 P.2d 1276, 1285 (App. 1999). Factors to consider are: (1) the nature of the prosecutorial misconduct; (2) the promptness or lack of a curative instruction; and (3) the strength or weakness of the evidence against the defendant. State v. Wakisaka, 102 Hawai`i 504, 515, 789 P.3d 317, 328 (2003). Under the Hawai`i Constitution, "reprosecution is barred where, in the face of egregious prosecutorial misconduct, it cannot be said beyond a reasonable doubt that the defendant received a fair trial." St. Clair, 101 Hawai`i at 287 (citation omitted).
DISCUSSION
A. Findings of Facts and Conclusions of Law
Patubo challenges findings of fact (FsOF) nos. 15, 17, 18, 19, and 20 and conclusion of law (COL) no. 1.
Regarding FsOF nos. 17, 18, and 19, Patubo challenges the legality (a) of Officer Skagg's entry into the residence and (b) of Officer Atkinson's entries into the residence.
Although the fourth amendment to the United States Constitution and article I, section 7 of the Hawai`i Constitution "ensure that an individual's legitimate expectations of privacy will not be subjected to unreasonable governmental intrusions", there are a few "specifically established and well-delineated exceptions." State v. Meyer, 78 Hawai`i 308, 312, 893 P.2d 159, 163 (1995) (internal citations omitted). "These exceptions provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." Id.
While "the term 'exigent circumstances' is incapable of precise definition, [g]enerally speaking . . . [it] may be said to exist when the demands of the occasion reasonably call for an immediate police response." More specifically it includes situations presenting an immediate danger to life or of serious injury or an immediate threatened removal or destruction of evidence. However, "[t]he burden, of course, is upon the government to prove the justification . . . , and whether the requisite conditions exist is to be measured from the totality of the circumstances." And, in seeking to meet this burden, "[t]he police must be able to point to specific and articulable facts from which it may be determined that the action they took was necessitated by the exigencies of the situation."
State v. Clark, 65 Haw. 488, 494, 654 P.2d 355, 360 (1982) (citations omitted).There being sufficient support in the record for the finding and conclusion that Officer Skaggs reasonably entered the residence "for the limited purpose of making sure there was no threat to officers, occupants, or evidence[,]" we affirm FsOF nos. 17, 18, and 19 and COL no. 1.
The requirements for a legitimate plain view observation are "(1) prior justification for the intrusion; (2) inadvertent discovery; and (3) probable cause to believe the item is evidence of a crime or contraband." Meyers, 78 Hawai`i at 314, 893 P.2d at 165; State v. Tangalin, 79 Hawai`i 92, 98, 898 P.2d 604, 610 (App. 1995) (internal citations omitted). In light of the evidence, the finding of fact part of FOF no. 20 is not clearly erroneous, and in light of the facts, the conclusion of law part of FOF no. 20 is right. (8)
No search having occurred when Officer Atkinson accompanied Patubo when Patubo went into his house to obtain the keys, and subsequently when Patubo went into his house to obtain his wallet containing his identification, Patubo's challenges of Officer Atkinson's entries into the residence have no merit.
Patubo contends that FOF no. 15 is
[e]rroneous because it only considered Patubo's actions with respect to [Bruchal's] actions and not with respect to Patubo's entire encounter with the police.
B. Prosecutorial Misconduct
Defense counsel did not object at trial to the following acts of alleged prosecutorial misconduct. On appeal, Patubo argues that,
[t]he following acts constituted plain error and should be reviewed by the court. Appellate courts, in the public interest, may on their own motion notice errors to which no exception has been taken if the errors are obvious, and if the errors otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings. (internal citations omitted)
Patubo argues that it was improper for the prosecutor during cross-examination to ask Patubo whether certain prosecution witnesses were "lying". The relevant questions and answers are as follows:
Q: Okay. So back then you indicated Sergeant Chung came out with two sets, told you he was gonna take em, made you sign papers; right?
Q: And now you're telling us that all four sets were gone; right?
Q: You didn't say anything about that last August; right? You only talked about two sets last August.
Q: Why didn't you mention all four sets last August?
Q: Could it be that you're not telling the truth sir?
Q: And then you're telling this jury, oh, there was, she was talking about a search warrant; right?
Q: Okay. And you heard her deny that there was ever any talk about getting a search warrant; right?
Q: And you heard Detective Bruchal indicate that a search warrant was an option, but only if you didn't consent to search, which you did; right? You remember him saying that?
Q: Okay. So is it fair to say that either Detective Bruchal and Linda D'Aquila are lying or you're lying? Right?
Q: But that's the alternative; right?
Q: It's either one or the other.
The State argues that
contrary to Patubo's depiction of the exchange between himself and the trial DPA, the trial DPA never asked [Patubo] whether Bruchal and D'Aquila were lying or forced him to characterize them as liars. The record indicates that the trial DPA was merely contrasting Bruchal's and D'Aquila's testimonies with [Patubo's] testimony regarding an lleged discussion by the police relative to a search warrant, leaving it up to the jury to decide whom to believe.
We disagree. The State forced Patubo to admit that if he was not lying, Detective Bruchal and Police Detective Linda D'Aquila were lying.However, "[w]here a defendant fails to object to a prosecutor's statement . . . , appellate review is limited to a determination of whether the prosecutor's alleged misconduct amounted to plain error." State v. Iuli, 101 Hawai`i 196, 204, 65 P.3d 143, 151 (2003). Based on the strength of the evidence against Patubo, we conclude that this prosecutorial misconduct had no reasonable possibility of altering the outcome of the trial and was thus harmless beyond a reasonable doubt. The evidence includes (1) Patubo's admission that the white Mazda with the wrong license plates and a missing VIN plate belonged to his "daughter"; (2) the location of license plate FPU 263 missing from the red Toyota parked in front of Patubo's residence on a couch in the living room of Patubo's residence; (3) the drugs and drug paraphernalia found in the bedrooms of Patubo's residence; and (4) Patubo's admission that the drugs found in the residence belonged to him. (10)
2. Alleged Bad Acts
Patubo argues that the Prosecutor improperly alleged that Patubo was involved in "uncharged illegal activities with respect to his hobby of fixing cars." The relevant testimony is as follows: (11)
Q: Do you have a license to run a car business?
Q: So you're running an unlicensed, illegal car business out of your house; right?
Q: Do you have a license or not?
Q: So you're running an unlicensed, illegal car business; are you, sir?
Q: No. I'm talking about a license to fix and sell cars at your residence.
Q: Would you agree with me that's a business?
Q: We had all kinds of people come in here, your own friends testify that's what you do for a living, you fix cars and sell em [sic]. All I'm asking is did you have a license to do that?
Q: And were you paying any excise tax?
The State argues that this topic was appropriate for cross-examination because Patubo testified that he fixes and sells cars for a living, and two of his friends also testified that Patubo fixes cars for a living.
We agree with Patubo that it was prejudicial to emphasize the fact that Patubo was running an illegal, unlicenced car business. However, given the fact that (1) defense counsel did not object to this testimony and (2) the nature of the alleged misconduct and the strength of the evidence against the defendant, we conclude that this prosecutorial misconduct was harmless beyond a reasonable doubt.
CONCLUSION
Accordingly, we affirm the July 23, 2002 Judgment of the Circuit Court of the First Circuit convicting Defendant-Appellant Lino Patubo, Jr., of two counts of Unauthorized Control of Propelled Vehicle, HRS § 708-836 (1993); one count of Promoting Dangerous Drug in the Second Degree, HRS § 712-1242(1)(b)(i) (1993); and one count of Unlawful Use of Drug Paraphernalia, HRS § 329-43.5(a) (1993); and sentencing him to concurrent five (5) year terms of probation for each count and to pay a $400 Crime Victim Compensation Fee and $500 for a Drug Demand Reduction Assessment.
DATED: Honolulu, Hawai`i, March 22, 2004.
On the briefs:
Daniel H. Shimizu,
Deputy Prosecuting
Attorney,
City and Couynty of
Honolulu,
for
Plaintiff-Appellee.
1. Hawaii Revised Statutes (HRS) § 708-836 (1993) states, in relevant part, as follows:
2. HRS § 712-1242 (1993) states, in relevant part, as follows:
(i) One-eight ounce or more, containing metamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, or salt of isomers; or
(ii) One-fourth ounce or more, containing any dangerous drug; or
(c)
Distributes any dangerous drug in
any amount.
4.
Police
Officer Ron Pinho-Goldman (Officer Pinho-Goldman) explained that
"punched" is a police term indicating signs that the car has been
"hotwired" or started and operated without a key.At trial,
Police Officer Charles
Skaggs (Officer Skaggs) testified that he, and not Police Officer Keaka
Atkinson (Officer Atkinson), was the second officer to arrive at the
scene. 5. At trial, Police Officer Charles
Skaggs (Officer Skaggs) testified that he, and not Police Officer Keaka
Atkinson (Officer Atkinson), was the second officer to arrive at the
scene.
6.
A factual
dispute arose as to what Defendant-Appellant Lino Patubo, Jr. (Patubo)
said in response to whether there were other people in the house.
Patubo's friend, Vincent Cabellero (Cabellero), testified at trial that
he was at the house to pick up his son and was sitting in the back of
the house watching television when Officer Pinho-Goldman knocked.
Patubo responded that he had some friends in the back. Cabellero was called to the front room where
Officer Pinho-Goldman and Patubo were standing. Cabellero was asked who
else was in the back, and he replied "my son and Delaney and Russell." Cabellero then grabbed his son, and Officer
Pinho-Goldman made them stand outside in the garage. Officer Pinho-Goldman asked Cabellero "if --
you know, do you realize that this was a chop shop, and [Cabellero]
said no." Officer Pinho-Goldman
"told [Cabellero], you know, if he -- if I didn't tell him you know,
what -- what else I knew about Lino, about what he was doing and stuff
that, you know, he would have my child taken away, you know, and have
CPS take my child away from me."
There were "already police officers walking in and out of the house . .
. before [Cabellero] came out with his son."