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State v. Carmichael8/29/2002
MOON, C.J., AND NAKAYAMA, J.; RAMIL, J., DISSENTING IN PART AND CONCURRING IN PART; LEVINSON, J., DISSENTING; AND ACOBA, J., DISSENTING
OPINION BY MOON, C.J., IN WHICH NAKAYAMA, J., JOINS; RAMIL, J., CONCURRING IN THE RESULT
Defendant-appellant Kalawaianui F. Carmichael appeals from the September 23, 1999 judgment of conviction and sentence of the Circuit Court of the Second Circuit. Carmichael contends that the circuit court, the Honorable Shackley Raffetto presiding, abused its discretion in denying Carmichael's motion to dismiss a charge of promoting a dangerous drug in the third degree as a de minimis offense. For the following reasons, we affirm both the circuit court's denial of the motion to dismiss and its judgment of conviction and sentence.
I. BACKGROUND
On February 13, 1999, Maui Police Department (MPD) Officer Christopher Horton observed a vehicle driven by Carmichael traveling between 84 and 86 miles per hour on a road with a speed limit of 30 miles per hour. Officer Horton stopped Carmichael's vehicle and spoke to him. Officer Horton detected an odor of alcohol from Carmichael, who slurred his words as he spoke. Carmichael initially admitted to drinking one, then two, beers. Minutes later, Carmichael told Officer Horton that he had drunk "three 40 ounce Mickey's." Carmichael appeared unsteady on his feet, and his field sobriety test revealed other signs of impairment. He was arrested for driving under the influence of intoxicating liquor, in violation of Hawaii Revised Statutes (HRS) 291-4 (Supp. 1999).
At the Wailuku police station, Carmichael elected to take a breath alcohol test, which revealed an alcohol content of .096. While "processing" Carmichael, MPD Officer Robert Harley did a pat-down search and recovered from Carmichael's sock: (1) a glass pipe containing a white crystalline substance and a brown, burnt substance; (2) two metal scrapers; (3) a small plastic straw with one end heat-sealed and the other cut at an angle; and (4) several ziplock bags containing "a light rock residue visible to the naked eye."
On April 12, 1999, Carmichael was charged by grand jury indictment with: (1) driving under the influence of intoxicating liquor (Count I); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp. 1999) (Count II); and (3) prohibited acts related to drug paraphernalia, in violation of HRS § 329-43.5(a) (1993) (Count III). On June 4, 1999, Carmichael filed a motion to dismiss Count II of the indictment, claiming that his alleged violation of HRS § 714-1243 constituted a de minimis infraction, pursuant to HRS § 702-236 (1993).
A hearing on Carmichael's motion was held on December 27, 1999. Both parties stipulated that Julie Wood, an expert in the field of drug identification, tested the evidence recovered from Carmichael. The parties stipulated that Wood's testimony would have been that the substance tested in the instant case was visible to the naked eye, and the parties agreed to admit into evidence a lab report prepared by Wood. Wood's lab report indicated that .002 grams of a substance containing methamphetamine was recovered from the glass pipe taken from Carmichael. The report also indicated that the white residue on the plastic straw and in the ziplock bags was of an insufficient amount for analysis.
The defense called George W. Read, Ph.D., Emeritus Professor of Pharmacology at the University of Hawaii. Dr. Read was qualified as an expert in the field of pharmacology, "the study of actions of drugs in an organism, especially man, humans." He testified that methamphetamine is a central nervous system (CNS) stimulant that has been medic
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