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[T] State v. Arakawa9/19/2003
NOT FOR PUBLICATION
SUMMARY DISPOSITION ORDER
The defendant-appellant Clyde S. Arakawa appeals from the judgment of conviction and sentence entered April 22, 2002 by the Circuit Court of the First Circuit, the Honorable Karen S.S. Ahn presiding, adjudging Arakawa guilty of, and sentencing him for, manslaughter in violation of Hawaii Revised Statues (HRS) § 707-702(1)(a) (1993). On appeal, Arakawa contends that the trial court erred: (1) by not presuming prejudice from pretrial publicity and changing venue; (2) by not changing venue after prejudice was confirmed in voir dire; (3) by abusing its discretion when it removed a juror and replaced her with an alternate juror; (4) by denying Arakawa's motion to suppress the felony intoxication test evidence; (5) by admitting evidence of a 1992 trespassing conviction; and (6) by allowing improper bolstering of the testimony of one of the prosecution's expert witnesses and denying one of Arakawa's expert witnesses the opportunity to view and test the vehicles in question.
Upon carefully reviewing the record and the briefs submitted by the parties, and having given due consideration to the arguments advocated and the issues raised, we hold as follows: (1) the circuit court did not abuse its discretion by not presuming prejudice from pretrial publicity and changing venue, inasmuch as the nature and extent of pretrial publicity did not present a substantial threat to Arakawa's right to a fair trial, see State v. Pauline, 100 Hawaii 356, 60 P.3d 306 (2002); (2) the circuit court did not abuse its discretion by refusing to change venue after voir dire because (a) the circuit court conducted a voir dire examination consistent with the instructions we set forth in Pauline, 100 Hawaii at 368, 60 P.3d at 318, (b) Arakawa ultimately passed the selected jurors, including alternates, "for cause," and (c) following jury selection, the circuit court took sufficient steps to shield the proceedings from the potential of prejudice from publicity, see State v. Wakinekona, 53 Haw. 574, 579-80, 499 P.2d 678, 682 (1972); (3) the circuit court did not abuse its discretion when it removed a juror during trial after receiving a complaint from a co-juror about the juror's misconduct in commenting on evidence, contrary to the court's specific instructions; the circuit court investigated the complaint by conducting an individual voir dire examination of the jury on this issue, and the court had the opportunity to judge the credibility of the complaining juror and the juror who allegedly made the inappropriate comments, see State v. Palisbo, 93 Hawaii 344, 356-57, 3 P.3d 510, 522-23 (App. 2000); (4) the circuit court did not err by denying Arakawa's motion to suppress the felony intoxication test evidence, inasmuch as: (a) Arakawa was the driver of a vehicle involved in a collision resulting in the death of another person, and the police had probable cause to believe that the blood alcohol test result would establish that Arakawa was driving under the influence of intoxicating liquor, three police officers having observed that Arakawa smelled of alcohol, had glassy, bloodshot eyes, and appeared unsteady on his feet at the collision scene; (b) exigent circumstances were present because Arakawa's blood alcohol was dissipating with time; and (c) the blood alcohol testing was done in a reasonable manner; utilizing a breath intoxilyzer machine, the accuracy of which was not challenged, see HRS § 286-163 (1993 & Supp. 2000) (the applicable statute, repealed on January 1, 2002 and replaced by HRS § 291E-21 (Supp. 2001)), and State v. Entrekin, 98 Hawaii 221, 97 P.3d 336 (2002); (5) the circuit court did not abuse its discretion when it admitted certain evidence concerning
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