 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Kido8/22/2003
* FOR PUBLICATION *
Sydney T. Kido (Kido) appeals the circuit court of the first circuit's January 8, 2002 judgment, as amended on January 15, 2002, that convicted him of promoting a dangerous drug in the third degree, a violation of Hawaii Revised Statutes (HRS) § 712-1243 (1993) (Count I), and unlawful use of drug paraphernalia, a violation of HRS § 329-43.5(a) (1993) (Count II). Because the court directed, over Kido's objection, that he testify before his other defense witness, and because this constitutional error was not harmless beyond a reasonable doubt, we must set aside the amended judgment. But because there was sufficient evidence to support the convictions, we vacate and remand for a new trial.
I. Background.
Kido's two-day jury trial started on June 14, 2001. Honolulu police officer Russell Pereira (Officer Pereira) testified first for the State. Officer Pereira remembered that on January 26, 2001, at about 6:30 a.m., he was on uniform patrol in Chinatown when he noticed Hector Arroyo Garcia (Garcia), who was "wanted in connection with a theft case[,]" sitting on a curb fronting 1169 Maunakea Street. "Mr. Kido was to the left of him and asleep at the time." Officer Pereira walked over from his police sedan and started questioning Garcia. During the interrogation, Officer Pereira noticed Kido get up -- "probably from the loud [police] radio or just my voices [(sic)] talking with [Garcia.]" From no more than ten feet away, Officer Pereira saw that Kido had his left fist clenched. Kido then moved to the side and dropped something onto the ground. "There's a distinctive clink like a glass hitting pavement." Kido immediately positioned his left foot over the object, "possibly smash the object[,]" but Officer Pereira grabbed the cuff of Kido's pant leg, lifted Kido's foot and recovered a glass pipe about four inches long from the pavement. Officer Pereira's training and experience indicated that it was a crack (rock cocaine) pipe. Kido protested that the pipe was not his, and invited Officer Pereira to test it for fingerprints.
On cross-examination, Officer Pereira testified that he parked his patrol car on the same side of the street the two men were sitting. It was perhaps closer to 6:00 a.m. at the time, and twilight, but with street lamps providing some illumination. "It is not necessarily well-lit but visible enough." Officer Pereira acknowledged that people were talking and police radios were on during the encounter, but maintained that he could distinctly hear the "pink" of the glass pipe hitting the pavement. He confirmed that he did not see anything sticking out of either side of Kido's fist before Kido dropped the pipe. Officer Pereira knew of Kido's habit of carrying a backpack and a fanny pack, but could not remember whether Kido had either with him at the time of the bust. Officer Pereira remembered asking another police officer who had arrived at the scene to dust the pipe for latent fingerprints. Officer Pereira confirmed that no source of ignition for the pipe -- a lighter or matches -- or other contraband was recovered from Kido.
On redirect examination, Officer Pereira informed the jury that police radio transmissions are a little louder than conversational level, but intermittent and not constant. He recalled that in four-and-a-half years of police work and numerous drug cases, he had never been able to extract a latent fingerprint from a glass pipe.
Honolulu police officer Jeffrey Nagai (Officer Nagai) remembered that he went to 1169 Maunakea Street that morning to back up Officer Pereira. While he was watching Officer Pereira interrogate Garcia, Officer Nagai heard "a tinking sound" from Kido's vicinity. Wh
Page 1 2 3 4 5 6 7 8 9 10 Hawaii DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|