State v. Arkin

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In this criminal case, the Supreme Court affirmed the judgment of the Intermediate Court of Appeals (ICA) rejecting the State's confession of error that insufficient foundation was laid for the admission into evidence of the results of a field sobriety test known as the horizontal gaze nystagmus (HGN) test, holding that the admission of the HGN evidence did not rise to plain error.

The confession of error also conceded that, absent the results of the HGN test, insufficient evidence supported Defendant's conviction of operating a vehicle under the influence of an intoxicant. The ICA rejected the confession of error based on its erroneous conclusion that the failure of Defendant's trial counsel to object to the admission of the results of the HGN test automatically disqualified it from appellate consideration as plain error. The Supreme Court affirmed on other grounds, holding that the ICA failed to apply the property standard in determining whether the State's confession of error should be accepted, holding that, in light of the evidentiary record, the admission into evidence of the HGN test results was not plain error.

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*** NOT FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER *** Electronically Filed Supreme Court SCWC-14-0000517 08-APR-2019 10:41 AM SCWC-14-0000517 IN THE SUPREME COURT OF THE STATE OF HAWAI I ________________________________________________________________ STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. MICHAEL L. ARKIN, Petitioner/Defendant-Appellant. ________________________________________________________________ CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000517; 3DTC-13-02654) SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.) Petitioner Michael L. Arkin (Arkin) was convicted following a bench trial of Operating a Vehicle Under the Influence of an Intoxicant (OVUII) in which the results of a field sobriety test known as the horizontal gaze nystagmus (HGN) test were admitted into evidence.1 Respondent State of Hawai i (State), through the Office of the Prosecuting Attorney for the County of Hawai i, confessed as error before the Intermediate 1 The Honorable Andrew P. Wilson presided. 1 *** NOT FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER *** Court of Appeals (ICA) that insufficient foundation was laid for its admission. The confession of error also conceded that, absent the HGN test results, insufficient evidence supported Arkin’s conviction. The State of Hawai i, through Deputy Prosecuting Attorney Jason R. Kwiat, hereby concedes that the State did not lay sufficient foundation for the admission of the horizontal gaze nystagmus test as required by State v. Ito, 90 Hawai i 225, 978 P.2d 191 (App. 1999). Coupled with the trial court’s finding that the State did not lay sufficient foundation for the admission of the breath alcohol concentration test results, the State concedes that there is insufficient evidence to sustain Defendant-Appellant Michael L. Arkin’s conviction under Haw. Rev. Stat. § 291E61(a)(1). Before accepting a confession of error a court must ascertain that the confession of error is supported by the record, well founded in the law, properly preserved, and prejudicial. State v. Hoang, 93 Hawai i 333, 336, 3 P.3d 499, 502 (2000). And, “great weight” must be given by the court to the prosecutor’s confession of error. But [the public prosecutor’s] confession [of error], though entitled to great weight, is not binding upon the appellate court, nor may a conviction be reversed on the strength of his [or her] official action alone. Before a conviction is reversed on confessed error, the public interest requires and it is incumbent upon the appellate court to ascertain first that the confession of error is supported by the record and well–founded in law and to determine that such error is properly preserved and prejudicial. Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945) (emphasis added). Arkin contends that the decision of the ICA failed to apply the proper standard to determine whether the State’s 2 *** NOT FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER *** confession of error should be accepted. The ICA rejected the confession of error based solely on its erroneous conclusion that the failure of Arkin’s trial counsel to object to the admission of the results of the HGN test automatically disqualified it from appellate consideration as plain error.2 See Hawai i Rules of Evidence Rule 103(d) (“Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.”). Nonetheless, in light of the evidentiary record in this case, the admission of the HGN evidence did not rise to plain error. Thus, we concur with the ICA’s affirmance of the judgment but on different grounds. raised by Arkin to be without merit. We find the other issues Accordingly, the ICA’s May 15, 2017 Judgment on Appeal is affirmed. DATED: Honolulu, Hawai i, April 8, 2019. John M. Tonaki, Phyllis J. Hironaka, Reiko A. Bryant for Petitioner /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna Mitchell D. Roth, David Blancett-Maddock for Respondent. /s/ Richard W. Pollack /s/ Michael D. Wilson 2 The ICA’s summary disposition order can be found in full at State v. Arkin, No. CAAP-14-0000517 (App. March 21, 2017 as amended May 15, 2017) (SDO). 3

Primary Holding

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