Oral Argument Before the Hawaii Supreme Court–No. SCWC-17-0000087
No. SCWC-17-0000087, Thursday, December 6, 2018, 10 a.m.
STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. NINO ABRIGO, Petitioner/Defendant-Appellant.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorney for Petitioner:
Taryn R. Tomasa, Deputy Public Defender
Attorney for Respondent:
Brian R. Vincent, Deputy Prosecuting Attorney
NOTE: Order accepting Application for Writ of Certiorari, filed 10/17/18.
COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.
On May 15, 2016, Nino Abrigo’s vehicle was stopped by Officer Aaron Ostachuk of the Honolulu Police Department who informed Abrigo that he had observed Abrigo commit traffic violations. After administering a standardized field sobriety test (SFST), Officer Ostachuk arrested Abrigo. The State of Hawai i charged Abrigo in the District Court for the First Circuit (district court) with operating a vehicle under the influence of an intoxicant (OVUII).
At trial, Officer Ostachuk was the only witness called by the State. The officer recounted the traffic violations that he witnessed, the SFST that he administered, and Abrigo’s performance on the SFST. At the end of the day, the trial was continued.
During cross-examination on the continued date, Officer Ostachuk testified that he did not have an independent recollection of Abrigo’s performance on the SFST without looking at his police report prior to testifying. At a further continued date, the officer again testified that he did not have an independent recollection of Abrigo’s performance on the SFST without looking at his police report.
The defense moved to strike Officer Ostachuk’s testimony about the SFST arguing that he had no independent recollection from which to testify, but the district court denied the defense’s motion. The court convicted Abrigo of OVUII.
Abrigo appealed his conviction to the Intermediate Court of Appeals (ICA), arguing that Officer Ostachuk’s testimony should have been stricken. The ICA affirmed the district court and held that the officer’s testimony, which was based on what was contained in his report, was admissible under the past recollection recorded exception to hearsay. The ICA also held that Officer Ostachuk’s testimony did not violate Abrigo’s constitutional right to confrontation and cross-examination.
In his application for a writ of certiorari, Abrigo contends that the ICA erred in affirming the district court’s conclusion that Officer Ostachuk’s testimony, which was reliant upon his police report, was admissible because (1) the State failed to establish an adequate foundation to satisfy the past recollection recorded exception; and (2) the admission of the police report under the past recollection recorded exception contradicted the public records exception to hearsay. Abrigo also argues that Officer Ostachuk’s testimony violated his constitutional right to confrontation and cross-examination under the United States Constitution and the Hawaii Constitution.