State v. Luckry

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JAN-2021
07:45 AM
Dkt. 58 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
STEPHEN LUCKRY, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Defendant-Appellant Stephen Luckry (Luckry) appeals

from the April 17, 2019 Notice of Entry of Judgment and/or Order

(Judgment) and the May 10, 2019 (Amended) Notice of Entry of

Judgment and/or Order (Amended Judgment) entered by the Honolulu

Division of the District Court of the First Circuit (District

Court).1 Luckry was convicted of Operating a Vehicle Under the

1
The Honorable William M. Domingo and the Honorable John A.
Montalbano presided, respectively.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Influence of an Intoxicant (OVUII), in violation of Hawaii

Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2019).2

Luckry raises two points of error on appeal, contending

that: (1) the District Court abused its discretion when it

excluded two instances of Honolulu Police Department (HPD)

Officer Jason Spiker's (Officer Spiker) previous falsehoods; and

(2) there was insufficient evidence to convict Luckry.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Luckry's points of error as follows:

(1) Luckry argues that the District Court erred when

it prohibited him from impeaching Officer Spiker with evidence of

two prior instances of Officer Spiker's conduct that were

probative of untruthfulness. Luckry argues that this evidence

was admissible under Hawai#i Rules of Evidence (HRE) Rule 608(b),

2
HRS § 291E-61(a) states in relevant part:

§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (a) A person commits the offense of
operating a vehicle under the influence of an intoxicant if
the person operates or assumes actual physical control of a
vehicle:

(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
mental faculties or ability to care for the
person and guard against casualty[.]

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

it was an abuse of discretion to preclude it, and the District

Court's error was not harmless beyond a reasonable doubt.

HRE Rule 608(b) provides, in relevant part:

(b) Specific instances of conduct. Specific instances
of the conduct of a witness, for the purpose of attacking
the witness' credibility, if probative of untruthfulness,
may be inquired into on cross-examination of the witness
and, in the discretion of the court, may be proved by
extrinsic evidence.

(Emphasis added).

In State v. Su, 147 Hawai#i 272, 283, 465 P.3d 719, 730

(2020), the Hawai#i Supreme Court explained:
[U]nder the plain language of HRE Rule 608(b), admissibility
of evidence under HRE Rule 608(b) involves a two-step
inquiry: (1) whether the specific conduct evidence
proffered for the purpose of attacking the witness's
credibility is probative of untruthfulness, and, if so, (2)
whether the probative value of the evidence of the specific
conduct is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence pursuant to HRE
Rule 403. An appellate court reviews the trial court's two-
step admissibility determination under the right/wrong
standard as to the first step, and under the abuse of
discretion standard as to the second step.

In Su, the supreme court examined a trial court ruling

disallowing the cross-examination of Officer Spiker (the same

Officer Spiker as in this case) about his testimony in three

prior proceedings (the same prior proceedings raised by Luckry in

this case). Id. at 274, 465 P.3d at 721. Discussing and

applying its two-step analysis, the supreme court concluded that

the trial court erred in the first step, with respect to the

cross-examination of Officer Spiker concerning two of those

proceedings: (1) in one proceeding, the Kuni ADLRO proceeding,

Officer Spiker admitted that he submitted a falsely sworn

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

statement to the ADLRO, which clearly called his credibility into

question; and (2) in a second proceeding, the Thomas harassment

trial, still photos of a video-recording showed that, contrary to

Officer Spiker's police report and testimony, the defendant did

not have his fists clenched and was not throwing punches. Id. at

285, 465 P.3d at 732; see also State v. Estrada, 69 Haw. 204,

219, 738 P.2d 812, 823 (1987) (holding that an officer's alleged

falsifications on his employment application were relevant to his

credibility and should have been admitted pursuant to HRE Rule

608(b)). With respect to the third proceeding, the Lee OVUII

trial, the supreme court held that a court's rejection of Officer

Spiker's estimate of distance and speed, because it did not make

sense, was not relevant to his credibility. Su, 147 Hawai#i at

285, 465 P.3d at 732.

Here, the District Court allowed Officer Spiker to be

cross-examined as to the Kuni ADLRO proceeding, but not the

Thomas and Lee matters. Relevant to this appeal, Luckry thus

contends the District Court erred in not allowing him to cross-

examine Officer Spiker concerning the second and third specific

instances of conduct addressed by the supreme court in Su. As

the supreme court held in Su, here, the District Court erred in

the first step of the Rule 608(b) analysis with respect to the

cross-examination of Officer Spiker concerning the Thomas

proceeding in which still photos of a video-recording showed

that, contrary to Officer Spiker's police report and testimony,

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the defendant did not have his fists clenched and was not

throwing punches. See id. at 285, 465 P.3d at 732.

However, as the supreme court held in Su, the trial

court's rejection of Officer Spiker's estimate of distance and

speed in the Lee proceeding, because it did not make sense, was

not relevant to his credibility. Id. Therefore, here, the

District Court did not err in disallowing Luckry's cross-

examination of Officer Spiker about the Lee case, which involved

testimony that did not make sense.

In this case, Officer Spiker testified as to, inter

alia, his observations of Luckry's driving that led to the

traffic stop, as well as Officer Spiker's observation of the odor

of alcohol coming from Luckry's breath, Luckry's appearance and

slurred speech, and Luckry's statement that "he had a six pack."

In issuing its decision, the District Court found that the

testimonies of Officer Spiker and the other testifying officers

were "the more credible testimon[ies]," in comparison to the

testimonies of Luckry and the other defense witness.

The District Court in this case did not specifically

rule on whether the prior proceedings were relevant, as is

required under the two-part analysis discussed in Su. However,

as discussed above, one of the prior proceedings that Luckry

sought to raise in cross-examination was relevant to Officer

Spiker's credibility and probative of untruthfulness. On remand,

based on the first prong of the Su/HRE Rule 608(b) analysis,

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Luckry is entitled to cross-examine Officer Spiker as to that

matter. However, the extent of the cross-examination and the

admissibility of any extrinsic evidence that might be offered

remain subject to an HRE Rule 403 analysis pursuant to the second

prong of the Su analysis. See Su, 147 Hawai#i at 285, 465 P.3d

at 732.

As Officer Spiker's testimony was central to Luckry's

conviction, we cannot conclude that the District Court's error in

precluding, inter alia, all references to the prior Thomas

proceeding was harmless beyond a reasonable doubt. See id.

(citation omitted).

(2) Luckry argues that the State failed to present

substantial evidence that Luckry operated his vehicle while under

the influence of alcohol in an amount sufficient to impair his

normal faculties or ability to care for himself and guard against

casualty. Luckry admits that the State presented some evidence

of intoxication, but submits that the evidence at trial may be

construed differently, in a manner that would not lead to

conviction for OVUII.

We conclude that, when the evidence adduced at trial is

considered in the strongest light for the prosecution, there was

sufficient evidence to convict Luckry of OVUII. See State v.

Matavale, 115 Hawai‘i 149, 157-58, 166 P.3d 322, 330-31 (2007).

"[E]ven if it could be said [] that the conviction is against the

weight of the evidence, as long as there is substantial evidence

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

to support the requisite findings for conviction, the trial court

will be affirmed." State v. Xiao, 123 Hawai#i 251, 257, 231 P.3d

968, 974 (2010) (citation omitted).

Officer Spiker testified that, on March 3, 2018, he

observed Luckry driving a red truck in the middle of three lanes,

directly in front of him, and the truck drifted into the far

right lane, with tires crossing the lane markings by about two

feet, almost colliding with parked vehicles, before jerking back

into its lane. This occurred two or three times. After the

traffic stop, when speaking with Luckry, Officer Spiker could

detect a strong odor of an alcoholic beverage on Luckry's breath.

Officer Spiker observed that Luckry had red, watery, bloodshot

eyes, a flushed face, and slurred speech. Officer Spiker

testified that Luckry told him that he had "a six pack and that

he was okay to drive after three beers."

HPD Officer Mitchell Cadina (Officer Cadina) testified

about his training with HPD to administer and evaluate a

Standardized Field Sobriety Test (SFST) and described the three

tests comprising the SFST and his administration of them to

Luckry. Officer Cadina testified, inter alia, that when he

administered the horizontal gaze nystagmus (HGN) test to Luckry,

he smelled a strong odor of an alcoholic beverage on Luckry's

breath and he observed that Luckry's eyes were red, watery,

glassy, and bloodshot. During the HGN test, he had to remind

Luckry "numerous times" to keep his head still. With respect to

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the walk-and-turn test, Officer Cadina instructed Luckry as to

how to perform the test, Officer Cadina demonstrated how to do

it, and Luckry stated that he understood. Officer Cadina

testified that Luckry lost his balance once during the

instructional stage and started too soon. During the test,

Luckry stopped multiple times, missed heel-to-toe contact

numerous times, and raised his arms, all contrary to the

instructions. With respect to the one-leg-stand test, Officer

Cadina instructed Luckry as to how to perform the test, Officer

Cadina demonstrated in part how to do it, and Luckry stated that

he understood. After Luckry started the test, he swayed in all

directions, moved his arms more than six inches from his body,

and discontinued the test after about ten seconds.

Based on our review of all of the evidence presented at

trial, we conclude that, when the evidence adduced at trial is

considered in the light strongest for the prosecution, there was

substantial evidence to convict Luckry of OVUII, notwithstanding

some conflicting evidence.

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

For these reasons, the District Court's April 17, 2019

Judgment and May 10, 2019 Amended Judgment are vacated, and this

case is remanded to the District Court for a new trial.

DATED: Honolulu, Hawai#i, January 29, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Sara K. Haley, Chief Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

9