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State v. Kanamu4/22/2005
NOT FOR PUBLICATION
David M. Kanamu (Defendant or Appellant) appeals the August 5, 2003 judgment of the Circuit Court of the First Circuit that convicted him -- upon a jury's verdict and as charged -- of promoting a dangerous drug in the third degree and unlawful use of drug paraphernalia. Defendant was sentenced to concurrent, five-year indeterminate terms of imprisonment, with his prison term for promoting a dangerous drug in the third degree subject to a mitigated mandatory minimum term of one year, as a one-strike repeat offender under Hawaii Revised Statutes (HRS) § 706-606.5 (Supp. 2004). We affirm.
I. Background
The charges arose out of a traffic stop during the early morning hours of November 14, 2001. Police officer Shermon Dowkin (Officer Dowkin or Dowkin) testified at trial that he clocked Defendant driving more than fifteen miles per hour over the speed limit on Kahekili Highway. Officer Dowkin described Defendant's demeanor during the ensuing traffic stop: "his eyes appeared to be red, bloodshot and watery, his speech was soft, mumbled, slurred. He appeared to be extremely nervous, fidgeted in his seat, and at one point in time he appeared to jump in his seat and appeared paranoid."
Officer Dowkin did not smell alcohol on Defendant's breath, but did detect "somewhat of a chemical type odor coming from his breath when he spoke to me." Officer Dowkin asked Defendant to step out of the car, and Defendant complied.
Officer Dowkin administered a field sobriety test and concluded that Defendant was impaired. While Officer Dowkin was reading him a police advisory about a preliminary alcohol screening, Defendant complained that he could not see the document and asked for his glasses. Defendant told Officer Dowkin that his glasses were in a backpack in the car.
Officer Dowkin looked in the car and eventually located a backpack and therein, an eyeglass case. When Officer Dowkin opened the eyeglass case, he saw not only the eyeglasses, but a glass pipe for smoking crystal methamphetamine (commonly known as "ice") along with several small ziploc bags. When Officer Dowkin showed Defendant the eyeglasses, Defendant disclaimed ownership.
Officer Dowkin arrested Defendant and transported him to the police station. There, Officer Dowkin, a certified DRE (drug recognition expert) officer and instructor, performed a "DRE examination" and concluded that Defendant was under the influence of a central nervous system stimulant, possibly ice. In the process, Officer Dowkin ruled out alcohol impairment.
A later consent search of the backpack turned up some cotton swabs, a metal wire about four inches long, four matchbooks, four lighters, and more small ziploc bags, all of which are commonly used in the intricate enterprise of smoking ice. An envelope addressed to Defendant was also found in the backpack. Still later, a criminalist tested the items recovered during the traffic stop and the consent search, and determined that the glass pipe and one of the small ziploc bags contained ice. Some of the other ziploc bags contained residue, but in amounts insufficient for analysis.
At first, Defendant indicated that he was going to testify in his defense. However, after consultation with counsel, Defendant decided otherwise:
THE COURT: Mr. Kanamu, did you have a chance to talk to your lawyer?
THE DEFENDANT: Yeah. Yes.
THE COURT: So you feel like she's telling you you can make up your own mind what to do? She said it was up to you; right?
THE DEFENDANT: Mm-hmm.
THE COURT: Okay. And what do you want to do?
THE DEFENDANT: No.
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