NOT FOR PUBLICATION
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
OF HAWAI`I, Plaintiff-Appellee, v.
DAVID C. SODERLUND, Defendant-Appellant
FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HPD Traffic No(s): 003091984)
Juntikka followed, but hung back for safety. He also activated his hazard lights in order to warn any cars that might approach from behind. Juntikka called 911 and related what he had just seen. He then started flashing his headlights in an effort to get Soderlund to stop. Finally, after continuing on down the road a ways, Soderlund pulled over and stopped. Juntikka followed suit. Juntikka noticed that Soderlund's left front tire was flat and that his left front fender was damaged. When Soderlund got out of his car, evincing some difficulty, he told Juntikka, "Yes. My tire just went flat." According to Juntikka, Soderlund seemed, "Little bit tired, disconnected, not aware of what was going on a little bit. Kind of . . . . kind of surprised." It appeared to Juntikka that Soderlund was unaware that he had just had an accident. As Juntikka was preparing to help Soderlund change the flat tire, Juntikka heard Soderlund's car still running. Juntikka reached into the car, turned off the ignition and kept the keys, which he later turned over to the police.
Honolulu Police Department officer Jose Villanueva (Officer Villanueva) testified that he and his field training officer were dispatched to the scene. They were waved down by Juntikka, who told them what had happened. Officer Villanueva saw Soderlund trying to change his tire. He noticed that Soderlund "was staggering a little bit. He had red, watery, glassy eyes and a strong smell of alcohol was present." With Soderlund's consent, Officer Villanueva conducted a battery of field sobriety tests (FSTs).
For the statement of his single point of error on appeal, Soderlund cites the following excerpt from the direct examination of Officer Villanueva, regarding the administration of the FSTs:
Q Okay. And so let's go into the FSTs. Are you trained and certified to administer the FSTs?
Q And where were you trained and certified?
Q And when was this?
Q Okay. And who taught you to administer and evaluate the FSTs?
Q Okay. And in your -- based on your knowledge, was Sergeant Nishibun a certified instructor?
And was Sergeant Nishibun certified by the National Highway [Traffic]
[DEFENSE COUNSEL]: Objection, Your Honor. There's no foundation. I don't know how he even knows that. And I do happen to know personally National Highway [Traffic] Safety Administration [NHTSA] doesn't certify anybody.
THE COURT: Well, they don't have to be; but since it's a foundational question to begin with, you don't need a foundation.
THE COURT: (Inaudible) don't apply, but is this going to be an issue here?
[DEFENSE COUNSEL]: Well, it's going to be an issue. The prosecutor has to ask if these people are NHTSA certified. One, NHTSA doesn't certify; two, I don't think he would know one way or another. It's up to the sergeant to testify to that.
[DEFENSE COUNSEL]: Well, I object to him testifying to something he has no personal knowledge about.
A I'm not, I'm not exactly sure, sir.
[DPA]: I understand, Your Honor. That's why I was asking if he knew or not. Thank you.
A Twenty-four hours.
A Yes, sir.
A Yes, sir.
[DEFENSE COUNSEL]: Objection, Your Honor. Best evidence rule. If they want to talk about a NHTSA manual, let them produce it.
[DEFENSE COUNSEL]: Well, that's true.
[DEFENSE COUNSEL]: Well, if they're --
[DEFENSE COUNSEL]: The next question he's about to ask is, is concerning the contents of the manual. And that is governed by the best evidence rule.
[DPA]: Well, I'll repeat the question. I believe he answered it. I believe that appears in his report.
A Hand outs.
[DEFENSE COUNSEL]: Objection. I object to him leading the witness now.
[DEFENSE COUNSEL]: Well, I mean, he's testifying now, not the officer.
BY [DPA]: Officer Villanueva, the hand outs that you received at your,
at your training, do
they set forth standards to administer and evaluate the FSTs?
A The Horizontal Gaze Nystagmus [HGN], the walk-and-turn [WAT] and the one-leg stand [OLS].
A Yes, sir.
A Sure. First we're taught to ask questions to the person who we give the Field Sobriety Test to. Ask them if they're under the care of a doctor, taking any medication, (indiscernible) wearing any glass eye or contact lens (indiscernible) and to observe the condition of the person who (indiscernible) FST.
A Just to determine to see if they (indiscernible) as far as to be able to perform the Field Sobriety Test.
A Yes, sir.
To your knowledge, was this training part of HPD's official protocol?
Q When you learn how to administer and evaluate the FSTs, were you required to pass any examinations?
Q And can you please describe the examination for the Court.
[DPA]: Thank you, Your Honor.
Q So based on your training after you asked these preliminary questions that you previously testified to, what were you trained to do next?
Q And can you please explain what is each -- what is Horizontal Gaze Nystagmus?
[DEFENSE COUNSEL]: Well, yes, there are several issues. One, first of all, I don't think there's an adequate foundation been layed [sic] here for the admissibility of any test. We have, we have no idea what standards he was taught. So I think that's a problem.
THE COURT: Actually I'm not, but --
And he concluded that neither testimony about proves or conclusions about pass or fail are admissible because there isn't sufficient scientific validity. But what the officer may testify to is what he saw with his own eyes how the person performed on the test.
I would encourage the Court, maybe on a recess, to look at the Horn opinion. I don't think -- I might add it cites to reports from Ito (5) and Ferrar [sic]. (6) So the U.S. District Judge really did his homework on his test.
[DEFENSE COUNSEL]: Well, I would submit that there certainly is no foundation to admit any evidence of the test, other than what the officer saw.
In fact, I generally allow it because usually it can only help the defendant if the officer can say that he passed. I'll give the defendant the benefit of that.
On the one hand, supposedly the State is supposed to establish the foundation to the extent that the HGN is given pursuant to NHTSA standards, something that is probably impossible to do in the real world without calling the presiding officer in NHTSA in to testify.
I think that's what the ICA actually said I could do. The only question is they said I can only do that if this foundation is layed [sic] that the officer administering the test did it pursuant to NHTSA standard. There's a certain absurdity in that because the nystagmus exists just, it exists. It doesn''t matter if you do it with your elbow or your pen or you do it -- observe it from 200 yards away.
THE COURT: I agree. All I'm saying is, it's correlated. It's not -- it doesn't prove causation. It just -- it may be that the absence of nystagmus would be very strong evidence that alcohol was not available or not, not here; but the presence of nystagmus, while it doesn't show the defendant was impaired by alcohol, it does show that the central nervous system was impaired --
COURT: -- in some way.
[DEFENSE COUNSEL]: No, no. That's not necessarily true. It would be caused by patterns unrelated to the central nervous system. So Schultz is --
[DEFENSE COUNSEL]: That it's possible.
[DEFENSE COUNSEL]: Well just, just look at, for example, on causes --
[DEFENSE COUNSEL]: Well, sun stroke can cause nystagmus.
[DEFENSE COUNSEL]: Yes, that's certainly admissible.
[DEFENSE COUNSEL]: No, the point I was making is that nystagmus is not necessarily associated with central nervous system function.
[DEFENSE COUNSEL]: Well, the literature says otherwise.
[DEFENSE COUNSEL]: But if Your Honor --
[DEFENSE COUNSEL]: If Your Honor would look at it yourself, you could -- or I could send you a copy, but this is the only copy I have with me.
I look at it strictly from the point of view of a lay person, strictly from the point of view of what the officer actually observed and his conclusions about what he observed I don't consider relevant to my decision. I will take the facts. I'll add them up, but maybe we can shorten some of the arguments about the FST if I make that statement for the record. Can we get to the test and see what he observed and then argue about what, what they mean?
THE COURT: Obviously, the officer is trained to make every other (indiscernible) to HPD.
THE COURT: Let me ask you, actually do we need the HGN in this case?
THE COURT: All right. Well, I'll tell you what. You were trained in the HGN like everyone else at the academy, Officer?
THE COURT: I'll, I'll note [defense counsel's] objection. I'll, I'll make a finding at the moment that this had been admitted in every other case that we've got. I'll let him testify as to what the results were and then I'll let [defense counsel] argue at some later point whether I should consider it; and I'll tell you whether I'll consider it for factoring in for further argument.
THE COURT: Understood. Okay. Let's go to what the officer actually saw that day and that'll be quicker.
[DEFENSE COUNSEL]: That's been asked and answered.
Q BY [DPA]: Okay. What was his response to the preliminary questions that you previously testified to?
Q Okay. And so you proceeded to perform the HGN test on him?
Q Before you -- can you tell us the three parts of the HGN test that you, that you did.
Q Before you did the three parts of the HGN test, do you perform any other test?
Q What test do you perform?
Q And, and how did you perform the vertical gaze nystagmus.
Q What exactly is nystagmus?
[DEFENSE COUNSEL]: Excuse me, Your Honor, did he say he observed nystagmus? I move to strike. It's not relevant to any issue in this case. Vertical nystagmus has nothing to do with alcohol.
A Yes, sir.
]DPA]: Your Honor, I could also ask, there is problem as to what is vertical -- where is he trained.
THE COURT: Yeah, I agree that this doesn't hurt you.
THE COURT: Okay. Go ahead.
THE COURT: (Indiscernible) Go right to what he saw.
THE COURT: (Indiscernible) That's not gonna help you no matter what he says. So let's to the other one.
A Okay. Well before that, I had a lack of smooth pursuit. I held a stimulus at about 12 to 15 inches away from the (indiscernible) slightly above eye level. He started from the (indiscernible). About two seconds, I held the stimulus and moved it to his left and then continued again back to the center and did it again twice on each eye and I observed nystagmus. He failed to have lack of smooth pursuit.
Q So about three-fourth's you observed nystagmus in both eyes?
[DPA]: Your Honor, would you like me to go into foundation for the walk-and-turn?
[DPA]: I understand, Your Honor.
Q So what did you do before you finished, performed the HGN on the defendant?
Q Okay. And what position do you have the defendant or did you have the defendant in while you were explaining the instructions?
Q Okay. And as you -- and you instructed the defendant as to how to perform the walk-and-turn, did you also demonstrate it?
Q Can you please tell the Court what you told the defendant to do in how to perform the walk-and-turn.
Q Can you please tell the Court exactly what the instructions are.
Q In what manner are the nine steps taken?
Q Are -- when you say heel-to-toe, does that mean that the heel-to-toe have to be touching?
Q And while you are doing the instructions, what are you looking for on the defendant?
[DEFENSE COUNSEL]: Your Honor, I believe he's testifying about clues and I object to this and move to strike.
[DPA]: I understand, Your Honor.
Q BY [DPA]: Okay. Officer Villanueva, while you were giving the instructions and demonstrating the walk-and-turn to the defendant, what did you notice about his condition?
Q And as he was -- and about how far apart were his heel-to-toe when you mentioned he missed heel-to-toe?
Q And before you had him start, did you make sure that he understood your instructions?
Q When you demonstrated the walk-and-turn to the defendant, did you go through the entire nine steps to and the entire nine steps back?
Q Did you have any problems doing the test yourself?
Q And what is the next step, next thing that you did after you've completed the walk-and-turn?
Q And when you were -- did you also demonstrate this test for him?
Q So you instructed how -- you instructed the defendant how high you wanted him to go at this point?
Q And what did you -- and the defendant indicated he understood the instruction, is that right?
Q And did he end up performing this test?
Q And what did you observe (indiscernible)?
Q And when you say "several", about how many times?
Q And what did he do after he put his foot down three times, I mean, each time?
Q As you were talking to defendant, did you notice any condition about his speech pattern?
[DPA]: Speech pattern, Your Honor.
Q Slurred speech.
A Slurred speech.
A I -- after the three tests was completed, I placed Mr. Soderlund under arrest.
On cross-examination, Officer Villanueva acknowledged that Soderlund was cooperative and provided the documents that Officer Villanueva requested. Officer Villanueva had no difficulty understanding Soderlund. Officer Villanueva also agreed that he did not know how hard Soderlund's car had hit the center divider, nor whether Soderlund was wearing his seat belt at the time. Officer Villanueva was not aware how "shaken up" Soderlund was by the collision or how that might have affected his performance on the FSTs. Officer Villanueva acknowledged that the ground was wet that day and that he administered the FSTs on a slight incline, on a dirt-and-gravel surface. Officer Villanueva also admitted that he did not provide Soderlund a straight line as a guide for the walk-and-turn FST.
Soderlund did not present any witnesses in his defense, but he did have his Exhibit A, U.S. Dep't of Transp., Nat'l Highway Traffic Safety Admin., Improved Sobriety Testing (1984), admitted into evidence. The district court ruled as follows:
Thank you. Defendant will please rise. Okay. I guess I'll, I'll say if we didn't have Mr. Juntikka's testimony, this would be a more difficult case, to say the least.
I, I am satisfied that the evidence in total satisfies the State's burden. I am satisfied, first of all, that the defendant had alcohol in his system. The testimony about the defendant's -- the odor of alcohol on his breath is enough to establish that. It doesn't tell me how much. It doesn't tell me anything about impairment, but it tells me that there's alcohol. Other things reinforce that, but they might be due to other things other than alcohol. But the fact is, there is testimony there is an alcohol odor.
But I think at least the folk lore [sic] is that that's certainly is associated, but whether it was or not, it was there. If it hadn't been observed, I suspect that [defense counsel] would be arguing there wasn't any evidence in the eyes. That's usually one of the arguments (indiscernible).
As I look at everything I have here, I am satisfied of that. If I had only the evidence from the officer's observations of the Field Sobriety Test, I would say it's a must [sic] closer case, but I've got quite a bit more than that.
He swayed on both the heel-to-toe test and the leg raise. His speech was slurred. He put his foot down three times which I will feel was because he couldn't keep his balance. But even if that to be fair, I'm satisfied the swaying is enough, when combined with the testimony of Mr. Juntikka, which shows that the defendant just clearly could not safely control his car on the road.
He had bad driving. He was not driving safely. It was only at the end that he hit the wall so that hitting the wall wouldn't be the reason he was driving badly. I look at this and I just see a case, this is as typical a DUI case as I generally will see.
I'm going to find that the defendant is guilty as charged. As I say, though, I'm not considering the eyes, I'm not considering the HGN. The HGN is only corroborative, but it wouldn't make any difference if the guy had closed his eyes and not taken it.
Soderlund avers on appeal that the district court erred in allowing Officer Villanueva to testify about Soderlund's performance on the field sobriety tests, because the proper foundation had not been laid. See State v. Toyomura, 80 Hawai`i 8, 26, 904 P.2d 893, 911 (1995); State v. Ferrer, 95 Hawai`i 409, 430, 23 P.3d 744, 765 (App. 2001); State v. Mitchell, 94 Hawai`i 388, 398, 15 P.3d 314, 324 (App. 2000); State v. Ito, 90 Hawai`i 225, 244, 978 P.2d 191, 210 (App. 1999); State v. Nishi, 9 Haw. App. 516, 523, 852 P.2d 476, 480 (1993). Soderlund argues:
While it appears that the district court was trying to walk the line between scientific test evidence and lay evidence, the record clearly shows that the district court improperly slipped across this line. With regard to the WAT and OLS, the district court failed to understand the significance of Villanueva's failure to administer the test according to NHTSA standards. Even Villanueva admitted on cross examination that from his observations, he could only say that Soderlund might have been under the influence. Both tests were given on a slope, on dirt containing rocks, and on ground which was wet. Further, the WAT was given on an imaginary line. It is undisputed from the evidence at trial that both tests "should be given on level ground, on a hard, dry, non-slippery surface, and under conditions in which the suspect would be in no danger should he fall" (Ex. "A" at 6 & 7). The WAT "requires a line that the suspect can see. If a natural line is not present, draw one in the dirt with a stick or on the sidewalk with chalk. Walking parallel to a curb is also adequate" (Ex. "A" at 6). The conditions under which these two tests were given in the instant case give Villanueva's observations minimal relevance. This case is a test book illustration of why compliance with NHTSA standards is mandatory.
Opening Brief at 19-20 (footnotes omitted; emphases in the original). Soderlund concludes that the district court's error mandates reversal or vacatur.
We disagree. Error vel non, nothing in the record indicates that the district court relied upon anything other than Officer Villanueva's observations of Soderlund's demeanor during the FSTs, along with the testimonies about the preceding events. The district court expressly disavowed reliance upon any testimony regarding Soderlund's FST performance or whether Soderlund "passed" or "failed" the FSTs. Hence, there is not a reasonable possibility that the error urged might have contributed to Soderlund's conviction. See Toyomura, 80 Hawai`i at 26-27, 904 P.2d at 911-12; Mitchell, 94 Hawai`i at 398, 15 P.3d at 324; Nishi, 9 Haw. App. at 524, 852 P.2d at 480. Cf. Ferrer, 95 Hawaii at 430, 23 P.3d 744, 765 (the district court erred when it expressly relied upon a police officer's opinion that the defendant "failed" the FSTs, where the police officer's opinion lacked the proper foundation for admissibility); Ito, 90 Hawaii at 245, 978 P.2d at 211 (the district erred because it "based the existence of probable cause solely on the HGN test results," where the police officer's opinion lacked the proper foundation for admissibility). We presume the district court ignored any incompetent evidence, see Toyomura, 80 Hawai`i at 27, 904 P.2d at 912; Mitchell, 94 Hawai`i at 398, 15 P.3d at 324, and mere self-serving insinuations on appeal about "the back door and stealth," without real support in the record, do not rebut that presumption:
And, as noted, the record reflects that the trial court both assured Toyomura that he was considering Officer Fujihara's testimony "only from a lay point of view" and that the trial court applied its independent assessment of the evidence in finding Toyomura guilty of DUI. We have no reason to construe the trial court's statement that "everything" that it heard about Toyomura's condition on the evening in question "told" it that Toyomura was "drunk" constituted a breach of the trial court's promise. See State v. Aplaca, 74 Haw. 54, 65-66, 837 P.2d 1298, 1304-05 (1992) (presuming that trial court applied the correct standard of proof).
Toyomura, 80 Hawai`i at 27, 904 P.2d at 912.
As for Soderlund's protestations about the conditions under which Officer Villanueva had him perform the FSTs, the weight to be assigned thereto was for the district court and the district court alone. Mitchell, 94 Hawai`i at 393, 15 P.3d at 319 ("The appellate court will neither reconcile conflicting evidence nor interfere with the decision of the trier of fact based on the witnesses' credibility or the weight of the evidence." (Citations and block quote format omitted.)).
Accordingly, the December 2, 2003 judgment of the district court is affirmed.
DATED: Honolulu, Hawai`i, March 10, 2005.
On the briefs:
Earle A. Partington,
Deputy Prosecuting Attorney,
City and County of Honolulu,
1. David C. Soderlund's November 26, 2003 notice of appeal states that he is appealing "from the judgment to be filed in this case whenever it is filed and which is not attached hereto pursuant to Rule 3(c)(2) of the Hawai`i Rules of Appellate Procedure because of [sic] the clerk of the district court refuses to provide me with a copy." See Hawai`i Rules of Appellate Procedure Rule 4(b)(4) (2004) ("A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be deemed to have been filed on the date such judgment or order is entered.").
2. The Honorable James H. Dannenberg presided.
3. Hawaii Revised Statutes § 291E-61(a)(1) (Supp. 2004) provides,
4. U.S. v. Horn, 185 F.Supp.2d
530 (D. Md. 2002). 5. State v. Ito, 90 Hawai`i
225, 978 P.2d 191 (App. 1999). 7. Schultz
v. State, 664 A.2d 60
(Md. Ct. Spec. App. 1995).
4. U.S. v. Horn, 185 F.Supp.2d 530 (D. Md. 2002).
5. State v. Ito, 90 Hawai`i 225, 978 P.2d 191 (App. 1999).6. State v. Ferrer, 95 Hawaii 409, 23 P.3d 744 (App. 2001).
v. State, 664 A.2d 60
(Md. Ct. Spec. App. 1995).