State v. Eduwensuyi. ( 2018 )

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Electronically Filed
Supreme Court
SCWC-16-0000558
18-JAN-2018
08:01 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
BENJAMIN EDUWENSUYI,
Petitioner/Defendant-Appellant.
SCWC-16-0000558
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000558; CASE NO. 1DTA-16-00425)
JANUARY 18, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
The appeal in this case arises from a challenge by
Benjamin Eduwensuyi to the validity of his waiver of the right
to testify at trial and the propriety of the conviction that
ensued. We hold that the record does not support a conclusion
that Eduwensuyi’s waiver of the right to testify was
voluntarily, intelligently, and knowingly made. Because the
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error was not harmless beyond a reasonable doubt, we vacate the
conviction and remand the case for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
On February 1, 2016, Eduwensuyi was charged by
complaint in the Honolulu District Court of the First Circuit
(district court) with operating a vehicle under the influence of
an intoxicant in violation of Hawaii Revised Statutes (HRS) §
291E-61(a)(1).1 A bench trial took place on July 11, 2016.2
Prior to the presentation of evidence, the district court
advised Eduwensuyi as follows:
THE COURT: . . . I have to advise you that you have a
right to testify if you choose to do so.
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you also have a right not to testify.
That’s up to you. I’ll question you further toward the end
of the trial as to whether or not you want to waive either
of these rights, to make sure that you’ve been fully
informed of your rights and to make sure that any decision
you make is your decision, it’s voluntary, okay. So your
attorney can give you advice about whether or not you
should or should not testify, but ultimately, it’s your
decision. Do you understand that?
1
HRS § 291E-61(a)(1) (Supp. 2015) provides as follows:
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
The Honorable Richard J. Diehl presided over the trial
proceedings.
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THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay, very well. We can readily proceed
then.
The State presented the testimony of one witness,
Officer Jessie Takushi of the Honolulu Police Department.
Officer Takushi testified that at approximately 4:37 a.m. on
January 17, 2016, he stopped a vehicle occupied by Eduwensuyi
for multiple traffic infractions, including crossing a double
solid yellow line.
According to Officer Takushi, as he was approaching
Eduwensuyi’s vehicle, he saw Eduwensuyi climbing from the
driver’s seat into the passenger’s seat. When Officer Takushi
reached the vehicle, he noticed that there was a different male
in the driver’s seat and that Eduwensuyi was “kind of laying
down on the passenger’s side with his feet still in the driver’s
seat area.”
Officer Takushi testified that he asked Eduwensuyi for
his driver’s license, registration, and insurance, which
Eduwensuyi provided. Officer Takushi stated that Eduwensuyi’s
eyes were red and watery, his speech was slurred, and an odor of
alcohol emanated from inside the vehicle. At Officer Takushi’s
request, Eduwensuyi agreed to participate in the standardized
field sobriety test. According to Officer Takushi, Eduwensuyi
was unsteady on his feet, he swayed while standing, and he
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dragged his feet when walking. Officer Takushi acknowledged
that his report did not mention that Eduwensuyi was swaying
while standing.
Following Officer Takushi’s testimony, the State
rested. The defense then informed the district court that it
would not be presenting evidence, and the following exchange
occurred:
THE COURT: . . . sir, you do have a right to testify
if you choose to do so, as I said at the beginning of the
trial. And if you testify, though, the prosecutor can
cross-examine you and ask you questions. If you decide not
to testify, the court -- I can’t hold it against you, nor
would I, that you are not going to testify. Okay, doesn’t
mean anything one way or the other to the court. Do you
understand these rights?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. And have you consulted with
your attorney about whether or not you wish to testify?
THE DEFENDANT: I like to take a second to do so right
now, sir.
THE COURT: Pardon me?
THE DEFENDANT: I’d like to take a second right now,
Your Honor -- . . . -- to do so again.
THE COURT: -- very well.
THE DEFENDANT: Yes, Your Honor.
THE COURT: You have consulted with your attorney?
THE DEFENDANT: Yes.
THE COURT: And do you wish to testify?
THE DEFENDANT: No, I’m not --
THE COURT: Okay.
THE DEFENDANT: -- Your Honor.
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THE COURT: Okay, the court finds that the defendant
has been advised of his rights, has knowingly,
intelligently, and voluntarily waived the right to testify
or not to testify. . . . .
Eduwensuyi then moved for judgment of acquittal, which motion
the court denied.
The district court found Eduwensuyi guilty of
operating a vehicle under the influence of an intoxicant in
violation of HRS § 291E-61(a)(1) and imposed sentence.3
Eduwensuyi appealed to the Intermediate Court of Appeals (ICA)
from the district court’s judgment entered on July 11, 2016.
II. ICA PROCEEDINGS
In his opening brief, Eduwensuyi argued that under
Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293, 1303
(1995), the district court was required to engage him in a
colloquy prior to accepting his waiver of the right to testify
to ensure he was knowingly, voluntarily, and intelligently
relinquishing his rights. Eduwensuyi contended that the court’s
Tachibana colloquy was incomplete and defective because the
court did not advise him that he had a right not to testify and
that if he wanted to testify no one could prevent him from doing
3
The district court sentenced Eduwensuyi to the following: pay a
fine and fees totaling $562; submit to a substance abuse assessment and
obtain recommended treatment; and participate in a 14-hour substance abuse
rehabilitation program. The district court further ordered that Eduwensuyi’s
license be revoked for a period of one year.
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so. Because the colloquy was defective, Eduwensuyi maintained,
any waiver by him was not knowing, intelligent, and voluntary.
In addition, Eduwensuyi contended that the court
failed to engage in a true exchange during the colloquy.
Eduwensuyi argued that, instead of administering the colloquy in
segments and asking Eduwensuyi whether he understood each
advisement, the district court simply recited a litany of
rights. (Citing State v. Christian, 88 Hawaii 407, 967 P.2d 239
(1998).) Eduwensuyi added that there was nothing in the record
to establish that he understood each of his rights or that the
court had an objective basis for finding that his waiver of the
right to testify was validly made.
Eduwensuyi further submitted that the district court’s
violation of the requirements of Tachibana was not harmless
beyond a reasonable doubt because the record offered no hint as
to whether his testimony, had he given it, could have
established reasonable doubt that he operated a vehicle under
the influence of an intoxicant. Eduwensuyi concluded that,
because it is inherently uncertain what he would have testified
to at trial, there is a reasonable possibility that the
violation of his constitutional right to testify contributed to
his conviction.
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In its answering brief, the State first addressed
Eduwensuyi’s contention that the district court failed to engage
in a true exchange during the Tachibana colloquy. The State
noted that the court asked Eduwensuyi at the end of both the
pretrial advisement and the ultimate colloquy whether he
understood his rights and, in both instances, Eduwensuyi
responded in the affirmative. The State added that Eduwensuyi
was also permitted to consult with defense counsel regarding the
waiver. Hence, the State argued that the court’s exchange with
Eduwensuyi was sufficient to enable the court to ascertain
Eduwensuyi’s understanding of the court’s advisements.
Turning to the contents of the pretrial advisement and
the ultimate colloquy, the State acknowledged that the district
court’s pretrial advisement was deficient in that the court did
not advise Eduwensuyi that his decision not to testify could not
be used against him by the factfinder. The State submitted
that, because the pretrial advisement is reviewed for actual
prejudice, the district court could have rectified the error by
ensuring that Eduwensuyi was fully informed of his rights in the
ultimate colloquy. The State conceded, however, that “the
ultimate colloquy was also deficient in some respects” because
the district court failed to inform Eduwensuyi of two of the
five basic requirements of Tachibana--namely, that if he wanted
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to testify, no one could prevent him from doing so and that he
had the right not to testify.
The State further acknowledged that the district
court’s violation of Tachibana “may not be harmless beyond a
reasonable doubt given the circumstances in this case” and that
“it is not uncommon for convictions to be vacated as a result of
deficient Tachibana colloquies.” The State indicated that the
situation was unfortunate given that the evidence showed that
Eduwensuyi operated a vehicle under the influence of an
intoxicant and that the district court failed “to follow the
simple mandates” of this court’s precedent. The State concluded
that it “believes the right to testify colloquy was deficient
and thus a new trial is warranted.”
On June 9, 2017, the ICA entered a summary disposition
order (SDO).4 In its SDO, the ICA did not reference that the
State had acknowledged in its answering brief that both the
district court’s pretrial advisement and the ultimate colloquy
were deficient because the district court failed to advise
Eduwensuyi of basic information required by Tachibana. The ICA
also did not mention in its SDO that the State had conceded
error in the conviction in this case.
4
The ICA’s SDO can be found at State v. Eduwensuyi, 140 Hawaii 7,
395 P.3d 1241 (App. June 9, 2017).
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The ICA determined that, although the district court
did not advise Eduwensuyi in the ultimate colloquy that no one
could prevent him from testifying if he wanted to do so, the
court adequately covered this advisement in the pretrial
colloquy by advising him that he had a right to testify or not
to testify and that it was ultimately his decision whether to
testify. The ICA further found that given the short time
between the pretrial advisement and the ultimate colloquy,5
Eduwensuyi’s acknowledgment that he understood his rights, and
Eduwensuyi’s opportunity to further consult with his counsel
prior to waiving the right to testify, the district court
satisfied the requirements of Tachibana. The ICA thus concluded
that Eduwensuyi validly waived the right to testify and
accordingly affirmed the district court’s judgment.
III. STANDARD OF REVIEW
The validity of a criminal defendant’s waiver of the
right to testify is a question of constitutional law reviewed by
this court under the right/wrong standard. State v. Gomez-
Lobato, 130 Hawaii 465, 468-69, 312 P.3d 897, 900-01 (2013).
5
The bench trial lasted fifty minutes.
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IV. DISCUSSION
Hawaii law has historically protected both a
defendant’s right to testify and right not to testify. State v.
Monteil, 134 Hawaii 361, 369, 341 P.3d 567, 575 (2014). The
right to testify is guaranteed by the Fifth and Sixth Amendments
to the United States Constitution; parallel provisions contained
in article I, sections 5, 10, and 14 of the Hawaii Constitution;
and HRS § 801-2. State v. Pomroy, 132 Hawaii 85, 91, 319 P.3d
1093, 1099 (2014). The right not to testify is protected by the
United States Constitution’s Fifth Amendment guarantee against
compelled testimony and the Hawaii Constitution’s counterpart
provision under article I, section 10. Monteil, 134 Hawaii at
369, 341 P.3d at 575.
A key purpose of the Tachibana colloquy is to protect
a defendant’s right to testify. Tachibana v. State, 79 Hawaii
226, 236, 900 P.2d 1293, 1303 (1995). In Tachibana, this court
declared as follows:
Thus, we hold that in order to protect the right to testify
under the Hawaiʻi Constitution, trial courts must advise
criminal defendants of their right to testify and must
obtain an on-the-record waiver of that right in every case
in which the defendant does not testify.
Id. (footnotes omitted). Hence, trial courts are charged with
the “serious and weighty responsibility” of ensuring that the
waiver of the right to testify is a knowing and intelligent
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decision. Monteil, 134 Hawaii at 371, 341 P.3d at 577 (quoting
Tachibana, 79 Hawaii at 233, 900 P.2d at 1300).
A defendant’s constitutional right to testify is
violated when the Tachibana colloquy is inadequate to provide an
“objective basis” for finding the defendant “knowingly,
intelligently, and voluntarily” relinquished his or her right to
testify. State v. Han, 130 Hawaii 83, 91, 306 P.3d 128, 136
(2013). In determining whether a waiver of the right to testify
was voluntarily and intelligently made, this court looks to the
totality of the facts and circumstances of each particular case.
Id. at 89, 306 P.3d at 134.
A. The Tachibana Colloquy Was Inadequate
In its answering brief to the ICA, the State conceded
that “the ultimate colloquy was . . . deficient in some
respects” because, inter alia, “the district court failed to
inform [Eduwensuyi] . . . that if he wants to testify that no
one can prevent him from doing so.” The State concluded that it
“believes the right to testify colloquy was deficient and thus a
new trial is warranted.” Upon a review of the record and
applicable law, the State’s concession of error was properly
made. See Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr.
1945) (holding that, while a prosecutor’s confession of error is
“entitled to great weight,” before a conviction is reversed, “it
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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”).
1. The district court did not advise Eduwensuyi that no one
could prevent him from testifying.
Under Tachibana, a defendant must be advised, inter
alia, “that if he [or she] wants to testify that no one can
prevent him [or her] from doing so.” 79 Hawaiʻi at 236 n.7, 900
P.2d at 1303 n.7 (alterations in original) (quoting State v.
Silva, 78 Hawaii 115, 122–23, 890 P.2d 702, 709–10 (App. 1995)).
This advisement is critical. See, e.g., Pomroy, 132 Hawaiʻi at
92, 319 P.3d at 1100. The Tachibana colloquy was adopted by
this court as the procedure that would “best protect defendants’
rights while maintaining the integrity of the criminal justice
system.” Tachibana, 79 Hawaiʻi at 234, 900 P.2d at 1301. This
court recognized that “[m]any defendants are unaware that they
have a constitutional right to testify which no one, not even
their lawyer, may take away from them.” Id. (quoting Boyd v.
United States, 586 A.2d 670, 677 (D.C. 1991)).
In Pomroy, we held that the Tachibana colloquy was
“defective” in part because the court “did not fully advise [the
defendant] of his rights.” 132 Hawaiʻi at 92, 319 P.3d at 1100.
As this court explained,
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Although the district court advised [the defendant] that he
had the right to testify on his behalf and that if he chose
to testify, he would be subject to cross-examination by the
State, the district court did not advise [the defendant]
that he had the right not to testify and that no one can
prevent him from testifying.
Id. (emphases added). Here, as in Pomroy, the district court
failed to advise Eduwensuyi that no one could prevent him from
testifying.6 This error was compounded by the court’s failure to
inform Eduwensuyi during the ultimate colloquy that the decision
regarding testifying was his to make. Given that the advisement
that no one can prevent the defendant from testifying is
critical and the only Tachibana advisement that emphasizes that
the waiver of the right to testify must be voluntary, the
court’s Tachibana colloquy was deficient.7
6
The State also properly conceded that the district court did not
advise Eduwensuyi during the ultimate colloquy that he had a right not to
testify. See Kogami, 37 Haw. at 175. In Pomroy, this court held that “the
district court did not advise [the defendant] that he had the right not to
testify;” the district court merely stated, “If you choose not to testify, I
cannot hold that against you.” 132 Hawaii at 92, 319 P.3d at 1100.
Likewise, the district court here advised Eduwensuyi, “If you decide not to
testify, the court -- I can’t hold it against you.” Such an advisement is
similarly flawed, since telling a defendant “[i]f you decide not to testify”
is not equivalent to informing the defendant of the constitutional right not
to testify.
7
The ICA appears to have similarly determined that the ultimate
colloquy was deficient because it acknowledged that the district court
neglected to advise Eduwensuyi that no one can prevent him from testifying.
The ICA instead relied on, inter alia, the pretrial advisement to conclude
that Eduwensuyi validly waived the right to testify.
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2. The pretrial advisement did not cure the deficiency of the
ultimate colloquy.
The ICA relied on the pretrial advisement to support
its conclusion that the ultimate colloquy was adequate. In its
answering brief, the State conceded that the pretrial advisement
was deficient because the district court did not advise
Eduwensuyi that if he decided not to testify, the court as the
factfinder would not use that decision against him. The State’s
concession on this point was correct. See Kogami, 37 Haw. at
175.
In State v. Lewis, this court mandated that trial
courts administer a pretrial advisement to defendants:
the trial courts “prior to the start of trial, [shall] (1)
inform the defendant of his or her personal right to
testify or not to testify and (2) alert the defendant that,
if he or she has not testified by the end of the trial, the
court will briefly question him or her to ensure that the
decision not to testify is the defendant’s own decision.”
94 Hawaii 292, 297, 12 P.3d 1233, 1238 (2000) (alteration in
original) (quoting Tachibana, 79 Hawaiʻi at 237 n.9, 900 P.2d at
1304 n.9). To more fully protect the right not to testify, the
court in Monteil added a third requirement to the pretrial
advisement. 134 Hawaii at 373, 341 P.3d at 579. There, we held
that trial courts must also advise defendants during the
pretrial advisement that their exercise of the right not to
testify may not be used by the factfinder to decide the case.
Id. The district court in this case was thus required to inform
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Eduwensuyi during the pretrial advisement that if he decided not
to testify, that decision would not be used against him. Id.
The court failed to advise Eduwensuyi accordingly, and therefore
the pretrial advisement was deficient.
The district court also did not inform Eduwensuyi
during the pretrial advisement that no one could prevent him
from testifying. Thus, the pretrial advisement could not cure
the deficiency of the ultimate colloquy, which likewise omitted
this information. The ICA nevertheless determined that, while
the district court neglected to advise Eduwensuyi during the
ultimate colloquy that no one could prevent him from testifying,
the court did inform Eduwensuyi during the pretrial advisement
that the decision whether to testify was ultimately his.
However, an advisement that the decision whether to testify or
not to testify is ultimately the defendant’s is not equivalent
under our precedent to an advisement that no one can prevent the
defendant from testifying.
In Pomroy, the district court advised the defendant
during the ultimate colloquy, inter alia, that the decision to
testify “is yours and yours alone.” 132 Hawaii at 92, 319 P.3d
at 1100. This court determined that the ultimate colloquy was
defective in part because the district court did not advise
Pomroy that no one could prevent him from testifying. Id.
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Similarly, the district court here informed Eduwensuyi during
the pretrial advisement that his counsel may advise him about
whether or not to testify but that the decision regarding
testifying was ultimately his. The court failed, however, to
inform Eduwensuyi during the ultimate colloquy that no one could
prevent him from testifying. Thus, the “district court
incompletely followed Tachibana’s directive.” Pomroy, 132
Hawaii at 92, 319 P.3d at 1100.
3. The ICA’s reasons for concluding that the district court
satisfied the requirements of Tachibana are flawed.
In concluding that the district court satisfied the
requirements of Tachibana, the ICA relied upon the fact that
only a short time elapsed between the district court’s pretrial
advisement and the ultimate colloquy. However, as discussed
supra, the pretrial advisement did not include the advisory that
was absent from the ultimate colloquy--that no one could prevent
Eduwensuyi from testifying if he wanted to do so.
Additionally, a general assumption that a trial of
short duration means that the defendant will remember and
carefully consider what was previously stated in a pretrial
advisement is not a fact that can be judicially noticed.
Indeed, the opposite may be true. A trial, especially the
commencement of the trial, is an event where a defendant may be
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anxious or nervous and not listening effectively.8 In addition,
it is questionable that a defendant would extrapolate from what
the judge actually said--it’s your decision to testify or not to
testify--to mean something in addition--that no one can prevent
you from testifying. Further, the ICA’s assumption based on the
brevity of the trial builds upon a premise that the defendant is
able to correctly recall a pretrial advisory at the end of
trial. This assumption treats all defendants alike in terms of
their ability to understand and recall the initial advisory
despite differences, for example, in education, proficiency in
understanding, and courtroom experience. It also does not
account for what comes in between the pretrial advisement and
the conclusion of trial: the evidence adduced at trial that may
affect the defendant’s ability at the time of the ultimate
colloquy to recall or focus upon a prior advisory. Finally, the
pretrial advisement notifies the defendant of the right to
testify or not to testify but states that if the defendant has
8
“A criminal proceeding is, at best, an anxious event for a
defendant and his family.” Sara K. Sorenson, Treating Defendants as
Individuals, 78 N.D. L. Rev. 259, 260 (2002). Courts have recognized in
other contexts that events associated with a criminal accusation can cause a
defendant to suffer from anxiety. See, e.g., United States v. Henson, 945
F.2d 430, 438 (1st Cir. 1991) (“[C]onsiderable anxiety normally attends the
initiation and pendency of criminal charges[.]”); State v. Wasson, 76 Hawaii
415, 422, 879 P.2d 520, 527 (1994) (citing Barker v. Wingo, 407 U.S. 514, 533
(1972)) (recognizing that the defendant, like most criminal defendants,
suffered from anxious moments awaiting trial); Commonwealth v. Leate, 367
Mass. 689, 694 (1975) (indicating that there is an assortment of pressures
inherent in the situation where a defendant pleads guilty).
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not testified by the end of trial, the court will question the
defendant later regarding the decision not to testify. It is
significant that the defendant is told that the pretrial
advisement is preliminary in nature and that the subject matter
will be addressed fully at a later point if the defendant
chooses not to testify.9
Thus, to assume, as the ICA did, that a pretrial
advisement can serve as a substitute for deficiencies in the
ultimate colloquy based on the length of the trial is inherently
problematic. Instead, a knowing, intelligent, and voluntary
waiver must be borne out by evaluating the facts and
circumstances that are evidenced as to the particular defendant,
Han, 130 Hawaii at 89, 306 P.3d at 134, and not based upon
general assumptions of what a defendant would recall from a
pretrial advisement--as deduced from the length of a trial.10
9
Further, the purpose of the pretrial advisement is not to make up
for the inadequacies of the ultimate colloquy. Rather, the pretrial
advisement was implemented because it would have “the beneficial effect of
limiting any post-conviction claim that a defendant testified in ignorance of
his or her right not to testify,” State v. Lewis, 94 Hawaii 292, 297, 12 P.3d
1233, 1238 (2000), and would lessen the risk that the ultimate colloquy would
inadvertently affect the defendant’s right not to testify, Tachibana, 79
Hawaii at 237 n.9, 900 P.2d at 1304 n.9.
10
Our analysis is not meant to indicate that a pretrial colloquy
cannot be considered as part of the totality of facts and circumstances in an
evaluation of whether a particular defendant’s waiver was knowing and
voluntary.
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The ICA also relied on “Eduwensuyi’s acknowledgment of
his understanding of his rights” at the conclusion of the
colloquy. However, as discussed, the ultimate colloquy was
deficient in that the court did not advise Eduwensuyi that no
one could prevent him from testifying. A defendant’s
acknowledgment of an understanding of an incomplete colloquy
cannot serve as a basis for a valid waiver of the right to
testify. Rather, a knowing, intelligent, and voluntary waiver
is demonstrated by a showing that the defendant was fully and
accurately informed in accordance with the requirements of
Tachibana and that the defendant acknowledged an understanding
of the advisements given. See Monteil, 134 Hawaii at 371, 341
P.3d at 577 (“[A] decision by a defendant not to testify should
be based upon a defendant’s awareness of the ‘relevant
circumstances and likely consequences’ of such a decision.”
(quoting Brady v. United States, 397 U.S. 742, 748 (1970))).
Finally, as support for its conclusion that there was
a valid waiver in this case, the ICA reasoned that Eduwensuyi
was afforded the opportunity to--and he actually did--consult
with defense counsel during the ultimate colloquy. However,
neither the basis of Eduwensuyi’s request to consult with
counsel during the ultimate colloquy nor the nature of their
conversation is known. After Eduwensuyi consulted with his
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counsel, the district court did not ask Eduwensuyi whether he
had any questions regarding his rights to testify and not to
testify, nor did the court ask whether speaking with counsel
answered any questions that he might have had regarding those
rights. Instead, the court simply asked Eduwensuyi whether he
wished to testify. And based on the negative response from
Eduwensuyi, the court found a knowing and intelligent waiver of
that right. Thus, there is nothing in the record that indicates
that Eduwensuyi’s discussion with counsel enhanced his
understanding of his constitutional rights, much less rectified
the error in the court’s colloquy.
In addition, it is settled law that the duty to ensure
that a defendant’s waiver of the right to testify is validly
made is one that is imparted to a court. “A court has a
‘serious and weighty responsibility to determine whether’ a
waiver of the right to testify is a knowing and intelligent
decision.” Monteil, 134 Hawaii at 371, 341 P.3d at 577 (quoting
Tachibana, 79 Hawaii at 233, 900 P.2d at 1300). Thus, a court
may not rely upon an off-the-record discussion between counsel
and a defendant to establish a valid waiver of a constitutional
right, and the ICA erred in doing so. Cf. State v. Gomez-
Lobato, 130 Hawaii 465, 477-78, 312 P.3d 897, 909-10 (2013)
(finding waiver of jury trial deficient in part because court
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should have inquired as to defendant’s understanding of jury
trial waiver form that was interpreted to him out of court).
Based on the foregoing, the ICA’s reasons for
concluding that the district court satisfied the requirements of
Tachibana are flawed and cannot support a finding that
Eduwensuyi validly waived the right to testify.
B. The Court’s Error Was Not Harmless Beyond A Reasonable Doubt
The State acknowledged in its answering brief that the
district court’s violation of Tachibana in this case “may not be
harmless beyond a reasonable doubt given the circumstances,”
concluding that it “believes the right to testify colloquy was
deficient and thus a new trial is warranted.” We find that the
State’s concession on this point was proper. See Kogami, 37
Haw. at 175. “Once a violation of the constitutional right to
testify is established, the conviction must be vacated unless
the State can prove that the violation was harmless beyond a
reasonable doubt.” Tachibana, 79 Hawaiʻi at 240, 900 P.2d at
1307 (citations omitted). “The relevant question under the
harmless beyond a reasonable doubt standard is whether there is
a reasonable possibility that error might have contributed to
[the] conviction.” Han, 130 Hawaii at 93, 306 P.3d at 138
(quoting State v. Schnabel, 127 Hawaii 432, 450, 279 P.3d 1237,
1255 (2012)).
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Had Eduwensuyi testified, he may have been able to
contest the State’s case and shed light on whether he operated a
vehicle under the influence of an intoxicant in violation of HRS
§ 291E-61(a)(1). On this record, it is not knowable whether
Eduwensuyi’s testimony would have had any effect on the outcome
of his case. Pomroy, 132 Hawaii at 94, 319 P.3d at 1102.
Hence, it is “impossible to conclude” that violating
Eduwensuyi’s right to testify was harmless beyond a reasonable
doubt. Tachibana, 79 Hawaii at 240, 900 P.2d at 1307; State v.
Silva, 78 Hawaii 115, 126, 890 P.2d 702, 713 (App. 1995);
Pomroy, 132 Hawaii at 94, 319 P.3d at 1102.11 Therefore,
Eduwensuyi’s conviction must be vacated.
C. The ICA Failed To Give Any Deference To The State’s
Concessions Of Error
As noted supra, the State conceded in its answering
brief that the pretrial advisement was deficient because the
district court did not advise Eduwensuyi that his decision not
to testify could not be used by the factfinder against him. The
State also conceded that the ultimate colloquy was deficient
because “the district court failed to inform [Eduwensuyi] of 2
of the 5 basic requirements of Tachibana, namely that if he
11
Eduwensuyi also argues that the court did not engage in a true
colloquy. In light of the disposition in this case, we do not address this
contention.
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wants to testify that no one can prevent him from doing so and
that he has the right not to testify.” The State further
acknowledged that the district court’s violation of Tachibana
“may not be harmless beyond a reasonable doubt given the
circumstances in this case” and concluded that it “believes the
right to testify colloquy was deficient and thus a new trial is
warranted.”
A prosecutor’s confession, although not binding on an
appellate court, is “entitled to great weight.” Territory v.
Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945); see also State v.
Wasson, 76 Hawaii 415, 418, 879 P.2d 520, 523 (1994)
(considering the State’s concession and concluding that the
State properly conceded error); State v. Solomon, 107 Hawaii
117, 127-28, 111 P.3d 12, 22-23 (2005) (recognizing the
prosecutor’s confession of error and vacating the defendant’s
conviction and remanding the case for a new change of plea
hearing). Thus, the ICA was required to consider the State’s
concessions of error set forth in its answering brief. However,
nothing in the ICA’s decision indicates that the ICA gave due
consideration to the State’s concessions in its evaluation of
the issues presented in this case.12 See Kogami, 37 Haw. at 175;
12
As stated, in Kogami, this court indicated that a prosecutor’s
confession of error is “entitled to great weight.” 37 Haw. at 175. We note
(continued . . .)
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Wasson, 76 Hawaii at 418, 879 P.2d at 523; Solomon, 107 Hawaii
at 127, 111 P.3d at 22.
As discussed, the State’s concessions are supported
both by the record in this case and applicable legal principles.
Under our well-settled law, while the ICA was not bound by the
State’s concessions, the ICA was required to give due
consideration to them. Nonetheless, in light of the disposition
reached in this case, we do not consider the effect of the ICA’s
failure to give the requisite consideration to the State’s
concessions.
V. CONCLUSION
The Tachibana colloquy was inadequate in that the
district court did not advise Eduwensuyi during the ultimate
colloquy that no one could prevent him from testifying. This
error was not harmless beyond a reasonable doubt. Therefore,
the ICA’s Judgment on Appeal and the district court’s judgment
(. . . continued)
that the level of deference that would be accorded to a concession would
depend on the issue presented. For example, in Kogami, we found that a
concession relating to the insufficiency of the evidence as to the charged
violation of a statute was well-founded. Id. However, if the confession of
error relates to an interpretation of a law, no deference need be given. See
Orloff v. Willoughby, 345 U.S. 83, 87 (1953) (“This Court, of course, is not
bound to accept the Government’s concession that the courts below erred on a
question of law.”). Given the manifest deficiency of the Tachibana colloquy
in this case and because the ICA entirely failed to acknowledge the State’s
concessions on appeal, we need not address the level of deference that the
ICA should have accorded to the State’s confessions of error relating to the
district court’s noncompliance with the Tachibana requirements.
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are vacated, and the case is remanded to the district court for
further proceedings.
James S. Tabe /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Loren J. Thomas
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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