State v. Ui. ( 2018 )

***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-15-0000402
16-MAY-2018
09:37 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
RACHEL VIAMOANA UI,
Petitioner/Defendant-Appellant.
SCWC-15-0000402
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000402; CASE NO. 3DTA-11-02996)
MAY 16, 2018
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
The right to have all elements of a charged criminal
offense proven beyond a reasonable doubt is one of the
fundamental principles of our justice system. In State v.
Murray, we held that a trial court must engage a defendant in an
on-the-record colloquy to ensure that the defendant is
intelligently, knowingly, and voluntarily relinquishing this
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
fundamental right before the court may accept the defendant’s
admission of an element of a crime. 116 Hawaii 3, 12, 169 P.3d
955, 964 (2007). We now reiterate our holding in Murray and
decline to establish an exception to the colloquy requirement
when a stipulation is based on trial strategy or time
constraints.
I. BACKGROUND
In April 2011, Rachel Viamoana Ui and Jacob Wong, Ui’s
co-worker, were involved in a traffic collision in Kona on the
island of Hawaiʻi. The two were traveling in Wong’s vehicle,
which “rolled” after it collided with a concrete construction
barrier on Kamakaeha Avenue, eventually coming to a stop on its
roof. When an ambulance arrived, the responding emergency
medical technician found Ui unconscious a few feet from the
driver-side door of the vehicle. Ui was transported to Kona
Hospital, where an emergency room physician informed the
responding police officer that he smelled alcohol on her person.
Acting pursuant to Hawaii Revised Statutes (HRS) § 291E-21
(Supp. 2006), the officer requested that the hospital obtain a
blood sample from Ui in order to determine her blood alcohol
content (BAC). Ronald Luga, a medical technician employed by
the hospital, proceeded to draw two vials of blood from Ui while
she remained unconscious.
2
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
A. District Court Proceedings
The State of Hawaiʻi filed a complaint in the District
Court of the Third Circuit (district court) charging Ui with
operating a vehicle under the influence of an intoxicant (OVUII)
in violation of HRS § 291E-61(a) (Supp. 2011)1 and driving
without a license in violation of HRS § 286-102(b)2 (2007).3 Ui
pleaded not guilty to both charges.
1
HRS § 291E-61 provides in relevant part as follows:
(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; [or]
. . .
(4) With .08 or more grams of alcohol per one hundred
milliliters or cubic centimeters of blood.
2
HRS § 286-102(b) provides in relevant part as follows:
(b) A person operating the following category or
combination of categories of motor vehicles shall be
examined . . . and duly licensed by the examiner of
drivers:
. . .
(3) Passenger cars of any gross vehicle weight
rating, buses designed to transport fifteen or fewer
occupants, and trucks and vans having a gross vehicle
weight rating of fifteen thousand pounds or less . .
. .
3
The complaint charged as follows:
Count 1 (C11009451/KN)
(continued . . .)
3
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
During the bench trial,4 the parties offered
conflicting testimony as to whether Ui was driving at the time
of the accident. Ui and Wong both acknowledged that they drank
heavily on the night in question and testified that Wong had
driven the two to a local store prior to the collision. Wong
claimed that Ui insisted upon driving his truck when they left
the store and was in control of the vehicle when it collided
with the concrete barrier. In contrast, Ui asserted that she
had “passed out” in Wong’s passenger seat while still at the
store and was sleeping when the collision occurred.
(. . . continued)
On or about the 13th day of April, 2011, in Kona, County
and State of Hawaii, RACHEL UI, did operate or assume
actual physical control of a vehicle on any public way,
street, road, or highway, while under the influence of
alcohol in an amount sufficient to impair Defendant’s
normal mental faculties or ability to care for Defendant’s
self and guard against casualty; and/or with .08 or more
grams of alcohol per one hundred milliliters or cubic
centimeters of blood, thereby committing the offense of
Operating a Vehicle Under the Influence of an Intoxicant,
in violation of Section 291E-61(a), Hawaii Revised
Statutes, as amended.
Count 2
On or about the 13th day of April, 2011, in Kona, County
and State of Hawaii, RACHEL UI, did operate a motor vehicle
of a category listed in Section 286-102 of the Hawaii
Revised Statutes, without first being appropriately
examined and duly licensed as a qualified driver of that
category of motor vehicles, thereby committing the offense
of Driving Without a License, in violation of Section 286-
102(b), Hawaii Revised Statutes, as amended.
4
The Honorable Joseph P. Florendo presided.
4
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
The State called Luga to testify regarding the blood
draw he performed on Ui. Before Luga’s testimony could begin,
Ui’s defense counsel interrupted:
I was speaking with Ms. Ui, and we may be willing to
stipulate to certain things to save time with these
witnesses.
Ms. Ui’s asking me, was asking me if these witnesses
are necessary, and I explained to her not if we’re willing
to stipulate to certain things. And I know that we’re
trying to get a lot done today. So if I could just briefly
speak with her, and maybe the prosecution, about what we’d
be willing to stipulate to, to save . . . the need of these
witnesses.
[Tr 4/13/12, 43:67] The court granted a recess to allow defense
counsel to confer with Ui and the prosecuting attorney.
Following the recess, defense counsel orally
stipulated to the following: (1) Ui’s blood was drawn within
three hours of the report of the accident; (2) Ui’s blood was
drawn in accordance with the Hawaii Administrative Rules; and
(3) the blood samples were properly secured and transported to
the laboratory. Additionally, defense counsel stipulated that
Ui’s blood test results showed a BAC of 0.156 grams of alcohol
per one hundred milliliters or cubic centimeters of blood.
Defense counsel indicated that he had “reviewed those
stipulations” with Ui and “we’re not challenging any of those
facts.”
The district court did not engage Ui in a colloquy
regarding the stipulation to the blood test results, and a
written copy of the stipulation was not provided to the court.
5
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Neither the court nor counsel acknowledged that the stipulated
facts constituted proof of one of the two elements of a HRS §
291E-61(a)(4) offense. See Hawaii Standard Jury Instructions
Criminal 16.05 (2004) (providing that the two elements of a
violation are 1) operating a vehicle and 2) having 0.8 or more
grams of alcohol per 100 milliliters or cubic centimeters of
blood).
At the conclusion of evidence, the district court
found Ui guilty of OVUII and of driving without a license. The
court sentenced Ui to pay a $1,000 fine and other monetary fees,
attend a fourteen-hour driver’s education course, and obtain a
substance abuse assessment.
B. Proceedings Before the Intermediate Court of Appeals
Approximately twenty-eight months later, Ui,
represented by new counsel, filed a notice of appeal to the
Intermediate Court of Appeals (ICA).5 Ui argued that the State
had failed to allege in its initial complaint that she had acted
with the state of mind required to commit both offenses. With
regard to the OVUII conviction, Ui argued it should be vacated
5
Shortly after the appeal was filed, Ui filed a statement of
jurisdiction that argued the untimeliness of her notice of appeal should be
excused under State v. Caraballo, 62 Haw. 309, 316, 615 P.2d 91, 96 (1980),
because Ui’s court-appointed counsel had failed to take the procedural steps
to effectuate Ui’s expressed desire to appeal. The State did not contest the
timeliness of Ui’s appeal to the ICA.
6
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
because the language of the district court’s ruling left it
unclear whether the conviction was premised on HRS § 291E-
61(a)(1)--which includes a state of mind requirement not alleged
in the complaint--or HRS § 291E-61(a)(4)--which does not.6
In a Summary Disposition Order (SDO), the ICA vacated
Ui’s conviction for driving without a license in violation of
HRS § 286-102.7 The ICA reasoned that, because HRS § 286-102
does not in itself specify a requisite state of mind with
respect to the conduct it prohibits, HRS § 702-204 (2014)8
requires that a defendant must have undertaken each element of
the offense intentionally, knowingly, or recklessly in order to
be convicted. The ICA held that, because the State had not
alleged a mens rea in its complaint, dismissal of the driving
without a license charge without prejudice was warranted under
this court’s decision in State v. Apollonio, 130 Hawaii 353,
359, 311 P.3d 676, 682 (2013).
6
An OVUII offense may be established either by proving a defendant
drove while under the influence of an amount of alcohol sufficient to cause
impairment under HRS § 291E-61(a)(1) or by proving a defendant drove with .08
or more grams of alcohol per one hundred milliliters or cubic centimeters of
blood under HRS § 291E-61(a)(4). State v. Grindles, 70 Haw. 528, 530, 777
P.2d 1187, 1189 (1989). The subsections are not separate offenses, but
rather separate methods of proof for a single offense. Id.
7
The ICA’s SDO can be found at State v. Ui, No. CAAP–15–0000402,
2016 WL 3018301 (Haw. App. May 25, 2016).
8
HRS § 702-204 provides in relevant part as follows: “When the
state of mind required to establish an element of an offense is not specified
by the law, that element is established if, with respect thereto, a person
acts intentionally, knowingly, or recklessly.”
7
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
The ICA also determined that Ui’s OVUII conviction was
based on violations of both HRS § 291E-61(a)(1) (impairment of
ability to care for oneself) and HRS § 291E-61(a)(4) (BAC over
.08). Because HRS § 291E-61(a)(4) is a strict liability method
of proof that does not require the State to allege a mens rea
under our precedents, see State v. Nesmith, 127 Hawaii 48, 58-
61, 276 P.3d 617, 627-30 (2012), the ICA affirmed Ui’s OVUII
conviction under HRS § 291E-61(a)(4).
Following issuance of the SDO, Ui filed a motion for
reconsideration. Ui argued that this court’s then-recent
decision in State v. Won, 137 Hawaii 330, 372 P.3d 1065 (2015),
in which we held that the State may not use the threat of
criminal sanctions to coerce a driver into consenting to a
breath or blood test, rendered her blood test results
inadmissible.9 The ICA should therefore vacate her HRS § 291E-
61(a)(4) conviction, Ui contended, and remand the case to permit
her to move to suppress the blood test results. The ICA denied
the motion, determining that Ui had waived the issue of
admissibility by failing to move for suppression of the test
results prior to trial.
9
Ui initially raised Won’s applicability to her case in a motion
for leave to file supplemental briefing prior to the ICA’s SDO. The ICA
denied Ui’s motion.
8
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
II. STANDARDS OF REVIEW
Both the reasonableness of a search and the validity
of a defendant’s waiver of his or her constitutional rights are
questions of constitutional law. See State v. Quiday, 141
Hawaii 116, 121, 405 P.3d 552, 557 (2017); State v. Friedman, 93
Hawaiʻi 63, 67, 996 P.2d 268, 272 (2000). “We answer questions
of constitutional law by exercising our own independent
constitutional judgment based on the facts of the case. Thus,
we review questions of constitutional law under the right/wrong
standard.” Friedman, 93 Hawaiʻi at 67, 996 P.2d at 272 (quoting
State v. Hanapi, 89 Hawaii 177, 182, 970 P.2d 485, 490 (1998)).
III. DISCUSSION
In her application for a writ of certiorari, Ui
contends that the ICA erred in failing to apply State v. Won,
137 Hawaii 330, 372 P.3d 1065 (2015), to vacate her HRS § 291E-
61(a)(4) conviction. The State responds that the ICA correctly
held that Ui is not similarly situated to the defendant in Won.10
10
The State also argues for the first time in response to Ui’s
certiorari application that the ICA lacked jurisdiction because Ui’s appeal
was untimely. Ui expressed her intention to appeal during sentencing , and
Ui’s appointed trial counsel was aware of that intention, as evidenced by
counsel’s filing of an ex parte motion to extend the time to file a notice of
appeal. The record does not indicate that Ui’s trial counsel filed a motion
to withdraw. Due process dictates that a defendant may not be deprived of an
appeal because appointed counsel failed to comply with procedural rules.
State v. Knight, 80 Hawaii 318, 323-24, 909 P.2d 1133, 1138-39 (1996); see
also Maddox v. State, 141 Hawaii 196, 204-05, 407 P.3d 152, 160-61 (2017)
(holding that trial counsel is constitutionally ineffective when counsel is
(continued . . .)
9
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Additionally, this court directed the parties to
submit supplemental briefing on the following questions: (1)
whether the district court erred by failing to engage Ui in a
colloquy regarding the blood test stipulation as required by
State v. Murray, 116 Hawaii 3, 12, 169 P.3d 955, 964 (2007), and
(2) whether, if the district court erred by not engaging Ui in a
colloquy, this court should recognize plain error and vacate
Ui’s conviction.
A. State v. Won Is Inapplicable To Ui’s Blood Draw.
In Won, we held that law enforcement’s use of an
“implied consent form” that threatened criminal penalties for
refusing a BAC test was inherently coercive and rendered a
driver’s ensuing consent invalid under article I, section 7 of
the Hawaiʻi Constitution. 137 Hawaiʻi at 347-48, 372 P.3d at
1082-83. When Ui’s blood was drawn at Kona Community Hospital
after the accident, no request was made that she consent to
testing, nor was an implied consent form advising of possible
criminal penalties involved. Because Ui’s blood draw was not
predicated on her consent, Won does not provide authority to
challenge Ui’s HRS § 291E-61(a)(4) conviction on this basis.
(. . . continued)
aware of a defendant’s desire to appeal and fails to take the procedural
steps to effectuate or protect the defendant’s right to appeal).
10
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
See id. at 344 n.26, 372 P.3d at 1079 n.26 (citing State v.
Entrekin, 98 Hawaii 221, 232, 47 P.3d 336, 347 (2002)) (setting
forth constitutional requirements for a nonconsensual,
warrantless blood extraction pursuant to HRS § 291E-21).11
B. State v. Murray Required An On-the-Record Colloquy.
1. A Colloquy is Required Prior to Any Stipulation to an
Element of an Offense
It is well settled in Hawaii law that a defendant
relinquishes fundamental rights only when a waiver is undertaken
intelligently, knowingly, and voluntarily. Murray, 116 Hawaiʻi
at 10-11, 169 P.3d at 962-63 (citing State v. Ibuos, 75 Haw.
118, 121, 857 P.2d 576, 578 (1993); Tachibana v. State, 79
Hawaii 226, 235, 900 P.2d 1293, 1302 (1995)). Reviewing courts
will not presume a defendant’s acquiescence in the loss of
fundamental rights on the basis of a silent record. Wong v.
Among, 52 Haw. 420, 424, 477 P.2d 630, 633-34 (1970). Rather,
an affirmative, on-the-record waiver must come directly from the
defendant, and counsel may not waive fundamental rights on a
client’s behalf. Murray, 116 Hawaii at 10, 169 P.3d at 962.
11
We express no opinion as to the applicability of Birchfield v.
North Dakota to this case. 136 S. Ct. 2160 (2016). On retrial, the district
court may consider whether Ui’s blood draw was performed pursuant to exigent
circumstances or solely as an incident to her arrest.
11
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
To ensure these requirements are met, it is necessary
for a trial court to engage a defendant in an on-the-record
colloquy before accepting a waiver of any of the rights we have
held to be fundamental, including the right to counsel, Carvalho
v. Olim, 55 Haw. 336, 342-43, 519 P.2d 892, 897 (1974), the
right to trial by jury, Ibuos, 75 Haw. at 121, 857 P.2d at 578,
and the right of a defendant to testify on his or her own
behalf, Tachibana, 79 Hawaiʻi at 236, 900 P.2d at 1303.
In Murray, this court considered whether the on-the-
record colloquy requirement should be applied to a defendant’s
stipulation to an element of an offense. 116 Hawaiʻi at 9, 169
P.3d at 961. Murray was charged with abuse of family or
household members under HRS § 709-906 (Supp. 2006) with a
statutory felony enhancement based on two previous convictions
for the same offense within a specified period.12 Id. at 5-6,
169 P.3d at 957-58. Prior to trial, Murray’s counsel stipulated
that Murray had been convicted under the statute twice within
12
In relevant part, HRS § 709-906 states as follows:
(1) It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member
or to refuse compliance with the lawful order of a police
officer under subsection (4).
. . .
(7) For a third or any subsequent offense that occurs
within two years of a second or subsequent conviction, the
offense shall be a class C felony.
12
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
the required time frame, thus satisfying an element of the
offense. Id. at 5, 169 P.3d at 957. The trial court did not
address Murray in a colloquy regarding the constitutional rights
he was waiving by stipulating to his prior convictions. Id.
On review, this court held that the right to have all
elements proven beyond a reasonable doubt is a fundamental right
guaranteed under the Fifth and Fourteenth Amendments to the
United States Constitution; article I, section 5 of the Hawaiʻi
Constitution; and HRS § 701-114 (1993).13 Id. at 10-12, 169 P.3d
at 962-64. We determined that “a colloquy between the trial
court and defendant is the best way to ensure that a defendant’s
constitutional right . . . is protected” because it guarantees
that a defendant understands the nature of the fundamental
rights being relinquished, the full consequences of such a
13
HRS § 701-114 states the following:
(1) Except as otherwise provided in section 701-115, no
person may be convicted of an offense unless the following
are proved beyond a reasonable doubt:
(a) Each element of the offense;
(b) The state of mind required to establish each
element of the offense;
(c) Facts establishing jurisdiction;
(d) Facts establishing venue; and
(e) Facts establishing that the offense was committed
within the time period specified in section 701-108.
(2) In the absence of the proof required by subsection (1),
the innocence of the defendant is presumed.
13
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
waiver, and the defendant’s unrestricted personal discretion as
to whether to undertake the waiver.14 Id. at 12, 169 P.3d at
964.
Thus, we determined that a colloquy is the most
reliable procedure to ensure the defendant’s waiver is knowing,
intelligent, and voluntary. Id. We reasoned in Murray that
“the colloquy approach also best promotes judicial efficiency by
establishing on the record that the defendant has voluntarily
waived an element of the offense,” thus minimizing post-trial
challenges. Id. We therefore held that the trial court must
conduct a colloquy when a defendant wishes to waive the right to
have all elements of an offense proven beyond a reasonable
doubt, which occurs when a defendant stipulates to one or more
elements. Id.
The requirement that all elements of an offense be
proven beyond a reasonable doubt arises out of the presumption
of innocence, one of the fundamental principles that establish
the foundation of our justice system. Coffin v. U.S., 156 U.S.
432, 452-61 (1895); see also State v. Basham, 132 Hawaii 97,
116, 319 P.3d 1105, 1124 (2014). No defendant in this State may
14
To the extent the State argues Murray established a colloquy
requirement only for stipulations regarding past convictions, it is mistaken.
See Murray, 116 Hawaii at 12, 169 P.3d at 964 (“[T]he trial court must
conduct a colloquy regarding waiver of proof of an element of the offense.”).
14
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
be found guilty until the prosecution overcomes the defendant’s
presumption of innocence as to each element of the charged
offense. State v. Lima, 64 Haw. 470, 474, 643 P.2d 536, 539
(1982); HRS § 701-114.
The waiver of the constitutional right to have each
element of an offense proven beyond a reasonable doubt is not an
insignificant or routine procedural matter. By its very nature,
the right encompasses a number of other constitutional rights,
including the right to confront and cross-examine witnesses as
to the stipulated element and the right to adduce contrary
evidence regarding the stipulated element. 83 C.J.S.
Stipulations § 5 (2017) (“A stipulation bars a party who enters
into it from adducing evidence to dispute the stipulated facts
or the circumstances surrounding them.”). The stipulation also
acts as a waiver of any potential defenses to the element, both
at trial and on appeal. Id. § 78 (“A stipulation as to facts
also functions as a waiver of legal defenses to the
establishment of the particular element to which the parties
have stipulated, and therefore is not reviewable on appeal.”).
In the absence of a colloquy, there is little by which a court
can gauge whether a defendant understands that stipulating to
facts comprising an element of an offense amounts to such a
sweeping concession.
15
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
In short, the right to have all elements of an offense
proven beyond a reasonable doubt is of fundamental importance.
We accordingly reaffirm that an on-the-record colloquy is
required to protect against the wrongful denial of this right.
2. Trial Strategy is not an Exception to the Mandatory
Colloquy Required by State v. Murray
The State argues that there were tactical advantages
to the stipulation and consequently a Murray colloquy was not
required to be conducted by the trial court. Our precedents
place certain tactical decisions within the discretion of
defense counsel after consultation with a defendant to the
extent feasible and appropriate. See State v. Richie, 88 Hawaii
19, 39, 960 P.2d 1227, 1247 (1998) (citing American Bar
Association, Standards for Criminal Justice—Prosecution Function
and Defense Function, Standard 4–5.2 (3d ed. 1993)). Our
decision in Murray, however, makes clear that the final decision
to stipulate to evidence proving an element of an offense
resides solely with the defendant. 116 Hawaiʻi at 12, 169 P.3d
at 964. Indeed, the Murray court held that the ICA had gravely
erred by concluding the stipulation was “a tactical decision
permissibly made by counsel for the defendant.” Id. at 7, 13,
169 P.3d at 959, 965. In reviewing applicable precedent, we
noted expressly that “a defendant’s constitutional rights may
not be waived by counsel . . . as a tactical matter.” Id. at
16
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
11, 169 P.3d at 963 (citing Tachibana v. State, 79 Hawaii 226,
229, 232, 900 P.2d 1293, 1296, 1299 (1995)).
Creating a trial strategy exception to the requirement
that a court engage a defendant in a colloquy prior to accepting
a stipulation to an element of an offense would be a sharp
deviation from the procedure for waiving other fundamental
rights. An attorney may not, for example, waive a defendant’s
right to a jury trial when the attorney considers a bench trial
strategically advantageous. State v. Ibuos, 75 Haw. 118, 121,
857 P.2d 576, 578 (1993); see also State v. Young, 73 Haw. 217,
221, 830 P.2d 512, 515 (1992) (overruling State v. Olivera, 53
Haw. 551, 497 P.2d 1360 (1972), which held that counsel may
waive a jury trial on a client’s behalf). Nor may defense
counsel waive a defendant’s right to testify as a matter of
trial strategy. Tachibana, 79 Hawaiʻi at 232, 900 P.2d at 1299
(holding that defense counsel may not waive a defendant’s right
to testify in his or her own behalf for tactical reasons).
A trial strategy exception would also ultimately
swallow the colloquy rule. Stipulations by definition are
voluntary agreements between opposing parties. Stipulation,
Black’s Law Dictionary (10th ed. 2014). As a voluntary
agreement, there is little incentive for counsel to enter into a
stipulation unless it is viewed as beneficial in some fashion.
17
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
This is to say that every decision to stipulate to evidence in a
case may be considered within the bounds of the trial strategy
exception argued by the State. See Gonzalez v. United States,
553 U.S. 242, 256 (2008) (Scalia, J., concurring in the
judgment) (“Depending on the circumstances, waiving any right
can be a tactical decision.”).
Even assuming that stipulations that involve trial
strategy can be distinguished from those that do not, it is
unclear what this distinction is and how a court would make the
determination. The evaluation would invariably need to be made
by the trial court because whether a particular stipulation is
strategic is a fact-laden determination. In assessing whether a
colloquy is required, a trial court would need to inquire of
counsel whether the stipulation was based on strategy or some
other consideration. The response by defense counsel to this
question in itself poses a risk of invading the attorney-client
privilege and may also be potentially damaging to the defense.
The follow-up questions necessary to determine the accuracy of a
counsel’s assessment would compound and heighten these concerns.
The present case amply demonstrates that reviewing
courts are not well positioned to ascertain the reasons
underlying a stipulation when such a judicial inquiry does not
take place at the trial level. Ui’s counsel stated the
stipulation was intended simply to “save time” because they were
18
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
“trying to get a lot done today.” Despite this indication that
the stipulation was driven by administrative time constraints,
the State argues that Ui “had clear strategic and tactical
reasons for stipulating to the blood alcohol results.” As would
likely be true in any appellate case in which judicial inquiry
was not done at the trial level, an accurate evaluation of the
issue would require remand for a hearing at which counsel and
the defendant would have to testify or respond to inquiries
regarding potentially privileged communications.15 And, as the
State appears to concede [SB at 9], remand for an evidentiary
hearing may be required even when its proposed trial strategy
exception to the colloquy requirement would apply because the
strategic advantages of a stipulation are only one aspect to be
considered in evaluating whether a defendant’s waiver was
knowing, intelligent, and voluntary under the totality of the
circumstances. Thus, the cost to judicial resources of
determining whether a colloquy was excused under a trial
strategy exception would negate the efficiency benefits the
15
Indeed, our own precedents also evidence the difficulty inherent
in distinguishing strategic stipulations from those undertaken solely for
administrative convenience. See State v. Pratt, 127 Hawaii 206, 225 n.6, 277
P.3d 300, 319 n.6 (2012) (Acoba, J., dissenting) (disputing the majority’s
characterization of a stipulation as tactical, stating “it would not appear
this strategy had an obvious basis for benefitting Petitioner’s case”
(brackets and quotations omitted)).
19
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
colloquy requirement affords. See Murray, 116 Hawaii at 12, 169
P.3d at 964.
Further, the stipulation in Murray itself was clearly
a strategic decision that would fall squarely within the State’s
argued exception. By relinquishing the right to have his prior
convictions proven beyond a reasonable doubt, Murray avoided
“the prejudice that would result from relating the details of
the previous incidents to the jury.” 116 Hawaii at 20, 169 P.3d
at 972. Murray’s decision represented a determination that it
was advantageous for him to concede one element of the charged
offense and focus his trial efforts on disproving those elements
that remained. Despite the clear strategic analysis inherent in
his decision, we held that the “stipulation [could] be accepted
only after engaging [Murray] in an on-the-record colloquy
regarding [his] constitutional rights, and ensuring that [Murray
made] a knowing and voluntary waiver of his right to have the
prior convictions proven beyond a reasonable doubt and decided
by a jury.” Id. at 21, 169 P.3d at 973. The State’s argued
trial strategy exception would thus constitute a sub silentio
reversal of our holding in Murray.
In sum, establishing a trial strategy exception to the
Murray colloquy requirement would fatally undermine the
procedural safeguards we have created for defendants’
20
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
fundamental rights. It would also introduce administrative
difficulties that would undercut the benefits to judicial
economy granted by the colloquy requirement. See Murray, 116
Hawaii at 12, 169 P.3d at 964. And it would represent an
effective overruling of Murray and other cases in which we have
held that a knowing, intelligent, and voluntary waiver cannot be
assumed from counsel’s words and actions, regardless of
strategic reasons for counsel’s statement of waiver. E.g.,
Tachibana, 79 Hawaii at 232, 900 P.2d at 1299; Young, 73 Haw. at
221, 830 P.2d at 515. We therefore decline to adopt such an
exception.
3. The Trial Court Failed to Engage Ui in an On-the-Record
Colloquy
During the State’s case-in-chief, the district court
recessed to allow the parties to discuss a possible stipulation.
Following the recess, counsel proceeded to orally stipulate to
the evidentiary foundation and results of Ui’s blood test. The
court did not address Ui before the stipulation was read to, and
accepted by, the district court. The district court did not
attempt to determine whether Ui understood the nature of the
rights she was waiving and the consequences of that waiver, nor
did it ascertain whether the waiver was the product of Ui’s
unrestrained choice.
21
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
As stated, Murray requires a trial court to conduct an
on-the-record colloquy with the defendant before accepting a
waiver of the fundamental right to have all elements of a charge
proven beyond a reasonable doubt. 116 Hawaiʻi at 12, 169 P.3d at
964. Only when the court has ensured that the right has been
knowingly, intelligently, and voluntarily waived may it accept a
stipulation to an element of an offense. Id. No such colloquy
occurred here. Indeed, the present case underscores the vital
role played by the colloquy. There is no indication in the
record that Ui understood that the stipulated facts her counsel
agreed to had the effect of conclusively establishing one of the
two elements of an offense with which she was charged. The
district court therefore erred in accepting Ui’s stipulation.
C. The District Court’s Plain Error Warrants Reversal.
When necessary to serve the ends of justice, this
court will consider issues that have not been preserved below or
raised on appeal. See State v. Kahalewai, 56 Haw. 481, 491, 541
P.2d 1020, 1027 (1975); Hawaii Rules of Penal Procedure (HRPP)
Rule 52(b) (2016) (allowing plain error to be noticed although
not brought to attention of trial court); Hawaii Rules of
Appellate Procedure (HRAP) Rule 28(b)(4) (2010) (permitting
point of error not presented on appeal to be noticed as plain
error); HRAP Rule 40.1(d)(1) (2015) (allowing question not
22
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
raised to be noticed as plain error). It is “firmly
established” that the relevant inquiry when evaluating whether a
trial court’s plain error may be noticed is whether the error
affected substantial rights.16 State v. Miller, 122 Hawaii 92,
100, 223 P.3d 157, 165 (2010); see also HRPP Rule 52(b) (“Plain
error. Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of
the court.”). Thus, a reviewing court has discretion to correct
plain error when the error is “not harmless beyond a reasonable
doubt.”17 State v. Nichols, 111 Hawaii 327, 335, 141 P.3d 974,
982 (2006); see also Miller, 122 Hawaii at 130, 223 P.3d at 195;
HRPP Rule 52(a) (2016) (“Harmless error. Any error, defect,
16
The State’s supplemental brief analyzed this case under the
federal plain error standard set forth in United States v. Olano, 507 U.S.
725 (1993). However, as the State concedes, this court expressly declined to
adopt the four-pronged Olano standard in State v. Nichols, 111 Hawaii 327,
335, 141 P.3d 974, 982 (2006). We reaffirm our holding in Nichols and do not
address the State’s arguments that rely on Olano.
17
The State appears to suggest that a different standard for
measuring harmless error should apply here because the failure of the
district court to engage Ui in a Murray colloquy was not “constitutional
error per se.” “Because a defendant may not be convicted of an offense
except upon proof establishing his or her guilt beyond a reasonable doubt, we
question whether a standard more lenient than the harmless beyond a
reasonable doubt standard is ever appropriate in criminal cases.” State v.
Malufau, 80 Hawaii 126, 131, 906 P.2d 612, 617, order on reconsideration
(1995); see also State v. Holbron, 80 Hawaii 27, 32 n.12, 904 P.2d 912, 917
n.12 (1995) (“To the extent that this language . . . implies a standard of
review under HRPP 52(a) other than ‘harmless beyond a reasonable doubt,’ we
expressly disapprove and overrule it.”); State v. Chun, 93 Hawaii 389, 393, 4
P.3d 523, 527 (App. 2000) (holding all errors in criminal cases are subject
to harmless beyond a reasonable doubt standard). Our precedent rejects the
distinction asserted by the State of “constitutional error per se” versus
non-constitutional errors.
23
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
irregularity or variance which does not affect substantial
rights shall be disregarded.”).
The right to have all elements of a charged offense
proven beyond a reasonable doubt is rooted not only in statutory
and constitutional law, but also in the presumption of innocence
that is the very foundation of our criminal justice system. We
held in Murray that the right was of such fundamental importance
that an on-the-record colloquy is required to protect against
its wrongful deprivation. 116 Hawaii at 10, 12, 169 P.3d at
962, 964 (citing U.S. Const. amend. XIV; Haw. Const. art. I, §
5). By not engaging Ui in this colloquy, the district court may
have deprived Ui of the fundamental right that the colloquy was
designed to protect. The error thus potentially affected rights
that were not only substantial, but also fundamental.
In assessing whether an error is harmless beyond a
reasonable doubt, we must determine whether there is a
reasonable possibility that the error contributed to the
conviction. State v. Nofoa, 135 Hawaii 220, 229, 349 P.3d 327,
336 (2015). If there is a reasonable possibility that the error
contributed to the conviction, “the error is not harmless beyond
a reasonable doubt, and the conviction must be set aside.” Id.
(citing State v. Gano, 92 Hawaii 161, 176, 988 P.2d 1153, 1168
(1999)).
24
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
The State contends that the stipulation did not affect
the outcome of the trial since both Wong and Ui testified as to
Ui’s level of intoxication. Although Ui and Wong’s testimony
did reflect the number and type of alcoholic beverages that Ui
consumed, there is nothing in the record indicating Ui’s height
or weight or the anticipated rate of alcohol dissipation for a
person with Ui’s physical attributes. In the absence of such
information, there is nothing from which a reasonable trier of
fact could infer Ui’s numerical blood alcohol concentration at
the time of the accident other than the stipulation.18 See State
v. Nakamitsu, No. CAAP–14–0001151, 2016 WL 381475, at *13 (Haw.
App. Jan. 29, 2016), aff’d, 140 Hawaii 157 (2017) (holding that,
without test results, insufficient evidence existed to support
defendant’s conviction for driving with breath alcohol content
over the legal limit despite ample evidence of defendant’s
impairment, including testimony that defendant crashed into
18
Because the State did not allege in its initial complaint the
requisite mens rea for the OVUII charge based on Ui’s impairment under HRS §
291E-61(a)(1), Ui’s OVUII conviction could be based only on a violation of
HRS § 291E-61(a)(4), which requires a showing that Ui’s BAC was over the
specified limit. See State v. Apollonio, 130 Hawaii 353, 359, 311 P.3d 676,
682 (2013) (“A charge that fails to charge a requisite state of mind cannot
be construed reasonably to state an offense and thus the charge is dismissed
without prejudice because it violates due process.” (citing State v. Elliott,
77 Hawaii 309, 313, 884 P.2d 372, 376 (1994))); State v. Nesmith, 127 Hawaii
48, 58-61, 276 P.3d 617, 627-30 (2012) (holding that HRS § 291E-61(a)(1)
includes a requisite mens rea element while HRS § 291E-61(a)(4) is a strict
liability method of proof). Thus, contrary to the State’s contention, an
alternative manner to prove guilt in this case was not available, and the
stipulation was necessary to prove Ui’s conviction.
25
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
light pole, had red eyes and smelled of alcohol, failed field
sobriety tests, and stumbled and acted erratically by crying and
using profanity).
Because the erroneously admitted stipulation formed
the only basis from which a trier of fact could infer Ui’s
numerical BAC, we cannot conclude that the district court’s
error in accepting the stipulation did not contribute to Ui’s
OVUII conviction. Accordingly, we hold that the district
court’s error was not harmless beyond a reasonable doubt.
In choosing to invoke our discretionary review of
plain errors, we consider whether the record evinces “errors
which seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Miller, 122 Hawaiʻi at 100,
223 P.3d at 165 (emphasis omitted) (quoting State v. Sawyer, 88
Hawaiʻi 325, 330, 966 P.2d 637, 642 (1998)). We will correct
such errors “to prevent the denial of fundamental rights”--
regardless of whether the error was brought to the attention of
the trial judge or raised on appeal.19 Id. (quoting Sawyer, 88
Hawaii at 330, 966 P.2d at 642).
19
The dissent argues that the power to correct plain error should
be exercised “sparingly” and that sua sponte review should be invoked only in
“exceptional cases,” relying on language in State v. Kelekolio, 74 Haw. 479,
515, 849 P.2d 58, 74-75 (1993), and State v. Fox, 70 Haw. 46, 56, 760 P.2d
670, 675-76 (1988). Dissent at 7. This court expressly rejected an
“exceptional cases” standard in Miller, in which we clarified that “the term
‘sparingly’ refers to the limitation already in place in HRPP Rule 52(b) that
(continued . . .)
26
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
As stated, the right to have all elements of an
offense proven beyond a reasonable doubt is rooted in structural
principles underlying criminal justice. The potential wrongful
denial of the presumption of innocence casts doubt upon the
integrity of the system as a whole. In light of this
foundational importance, invoking plain error review is
appropriate under these circumstances. See State v. Staley, 91
Hawaii 275, 286-87, 982 P.2d 904, 915-16 (1999) (holding it was
plain error for trial court to fail to engage defendant in a
colloquy prior to accepting defendant’s waiver of fundamental
right to testify); State v. Davia, 87 Hawaii 249, 255, 953 P.2d
1347, 1353 (1998) (holding it was plain error for trial court to
fail to engage defendant in a colloquy prior to accepting
defendant’s no contest plea); Miller, 122 Hawaiʻi at 116, 223
P.3d at 181 (holding plain error review is appropriate when
errors affect the fairness, integrity, or public perception of
judicial proceedings (citing State v. Fox, 70 Haw. 46, 56, 760
P.2d 670, 676 (1988))).
(. . . continued)
the error must be one ‘affecting substantial rights.’” 122 Hawaii at 117,
223 P.3d at 182. We reaffirm Miller’s holding that “where plain error has
been committed and substantial rights have been affected thereby, the better
part of discretion is to invoke the plain error rule.” Id. (quotations and
brackets omitted).
27
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
The State and the dissent contend that State v. Pratt,
127 Hawaii 206, 277 P.3d 300 (2012), forecloses plain error
review under the circumstances of this case. Dissent at 9-11.
However, we held in Pratt that it was not plain error for a
court to fail to engage a defendant in a Murray colloquy when
the trial had occurred before this court had decided Murray and
established the colloquy requirement. 127 Hawaii at 212, 277
P.3d at 306. In contrast, the present case centers on a trial
court’s failure to implement clearly established law.
The dissent interprets Pratt to suggest that plain
error review of a trial court’s failure to conduct a Murray
colloquy is inappropriate when counsel’s statements suggest the
defendant initiated or participated in the decision to stipulate
to an element of the offense. Dissent at 9-11. This approach
is misframed as a plain error standard, and it amounts to
inferring the voluntariness and knowingness of a defendant’s
waiver of fundamental rights from the statements of defense
counsel. Respectfully, such a rule is plainly inconsistent with
our precedents.
This court has often stated expressly that the
“[w]aiver of a defendant’s fundamental rights . . . must come
directly from the defendant.” Murray, 116 Hawaii at 10, 169
P.3d at 962 (emphasis added); accord State v. Ibuos, 75 Haw.
28
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
118, 121, 857 P.2d 576, 578 (1993). A waiver by defense counsel
on the defendant’s behalf is insufficient. State v. Young, 73
Haw. 217, 221, 830 P.2d 512, 514 (1992) (“[I]t is the defendant
who must make the waiver, upon being well informed of his right
to trial by jury.” (emphasis added)); accord Ibuos, 75 Haw. at
120 n.1, 857 P.2d at 577 n.1; State v. Gomez-Lobato, 130 Hawaii
465, 481, 312 P.3d 897, 913 (2013) (Acoba, J., concurring).
Indeed, we have expressly refused to speculate regarding the
substance of privileged communications surrounding a waiver, as
the dissent would have us do here, stating that “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.” State v. Eduwensuyi, 141 Hawaii 328, 336, 409 P.3d 732,
740 (2018).
We have even declined to find a knowing, intelligent,
and voluntary waiver of fundamental rights when the defendant
personally signs a written form or the court engages the
defendant in an incomplete or deficient colloquy--neither of
which occurred in this case. See, e.g., id.; State v. Baker,
132 Hawaii 1, 7, 319 P.3d 1009, 1015 (2014); Gomez-Lobato, 130
Hawaii at 472-73, 312 P.3d at 904-05. And we have often invoked
plain error review in doing so. See, e.g., State v. Ichimura,
SCWC-13-0000396, 2017 WL 2590858, at *7 (Haw. June 15, 2017);
29
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Gomez-Lobato, 130 Hawaii at 469 n.4, 312 P.3d at 901 n.4.; see
also State v. Vaitogi, 59 Haw. 592, 593 n.4, 594, 585 P.2d 1259,
1260 n.4, 1261 (1978) (holding it was plain error for the trial
court to fail to engage the defendant in an on-the-record
colloquy prior to accepting a guilty plea).
Our precedents do not permit a reviewing court to
infer that a fundamental right was knowingly, voluntarily, and
intelligently relinquished by a defendant simply because defense
counsel suggested that the right was so waived. Given the
complete lack of an on-the-record colloquy and personal waiver
in this case, we conclude that the trial court plainly erred.
IV. CONCLUSION
We hold that the district court plainly erred in
failing to conduct an on-the-record colloquy as required by our
decision in Murray. Thus, the court also erred in accepting the
stipulation as evidence proving that Ui’s BAC was .08 or more
grams of alcohol per one hundred milliliters or cubic
centimeters of blood. The district court’s error was not
harmless, and the stipulation regarding Ui’s blood test must be
set aside. Accordingly, the ICA’s June 30, 2016 Judgment on
Appeal is affirmed in part and vacated in part. We affirm the
ICA’s Judgment on Appeal to the extent that it vacated Ui’s
conviction under HRS § 286-102(b) and remanded to the district
30
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
court with instructions to dismiss the HRS § 286-102(b) charge
without prejudice. We vacate the ICA’s Judgment on Appeal to
the extent that it affirmed Ui’s conviction under HRS § 291E-
61(a)(4) and also vacate Ui’s district court conviction for this
offense, and the case is remanded to the district court for
further proceedings.
Steven T. Barta /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
David Blancett-Maddock
for respondent /s/ Michael D. Wilson
31