State v. Falevai ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-MAY-2022
04:27 PM
Dkt. 127 SO
NOS. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
ISAAC FALEVAI, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KÂNE#OHE DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Isaac Falevai (Falevai) appeals
from the July 24, 2018 Judgment and Notice of Entry of Judgment
(Judgment) and the November 8, 2018 Amended Judgment and Notice
of Entry of Judgment (Amended Judgment), entered in the District
Court of the First Circuit, Kâne#ohe Division (District Court).1/
Falevai was charged with Sexual Assault in the Fourth
Degree, in violation of Hawaii Revised Statutes (HRS) § 707-
733(1)(a).2/ Following a bench trial, the District Court
1/
The Honorable Melanie M. May presided. On January 7, 2019, this
court entered an Amended Order Granting Motion to Consolidate Appeals, which
consolidated case numbers CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX under case
number CAAP-XX-XXXXXXX.
2/
At the time of the alleged offense, HRS § 707-733(1)(a) (2014)
stated:
Sexual assault in the fourth degree. (1) A person commits
the offense of sexual assault in the fourth degree if:
(a) The person knowingly subjects another person to
sexual contact by compulsion or causes another
person to have sexual contact with the actor by
compulsion[.]
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concluded that Falevai knowingly touched the complaining
witness's (CW) buttocks without her consent, while on a bus in
the early hours of the morning. However, based on expert
testimony that Falevai, at the time of the alleged offense, was
suffering from a schizophrenia disorder and was taking prescribed
medications that slowed his reactions and ability to think, the
District Court acquitted Falevai by reason of mental disease,
disorder, or defect excluding penal responsibility, pursuant to
HRS §§ 704-400 and 704-402.3/
On appeal, Falevai contends that the District Court
erred: (1) in failing to acquit Falevai "outright" due to
insufficient evidence, where there was no evidence of "sexual
overtones" in Falevai's conduct; (2) in failing to read Falevai's
memorandum of law on sexual assault in the fourth degree and
instructing the clerk not to file it; (3) in acquitting Falevai
by reason of mental disease or defect, thereby subjecting him to
required registration as a "covered offender" under HRS §§ 846E-1
and -2,4/ where the evidence established that Falevai was not a
3/
HRS § 704-400 (2014) states, in relevant part:
Physical or mental disease, disorder, or defect excluding
penal responsibility. (1) A person is not responsible,
under this Code, for conduct if at the time of the conduct
as a result of physical or mental disease, disorder, or
defect the person lacks substantial capacity either to
appreciate the wrongfulness of the person's conduct or to
conform the person's conduct to the requirements of law.
HRS § 704-402 (2014) states, in relevant part:
Physical or mental disease, disorder, or defect excluding
responsibility is an affirmative defense; form of verdict
and judgment when finding of irresponsibility is made. (1)
Physical or mental disease, disorder, or defect excluding
responsibility is an affirmative defense.
. . . .
(3) When the defendant is acquitted on the ground of
physical or mental disease, disorder, or defect excluding
responsibility, the verdict and the judgment shall so state.
4/
HRS §§ 846E-1 and 846E-2 (2014) state, in relevant part:
§ 846E-1 Definitions. As used in this chapter,
unless the context clearly requires otherwise:
. . . .
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"sex offender" and thus not a "covered offender" under HRS
§ 846E-1; and (4) in failing to conduct a proper Tachibana5/
colloquy with Falevai before he decided not to testify.
Falevai has also filed a motion for retention of oral
argument, which is hereby DENIED.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Falevai's contentions as follows.
"Covered offender" means a "sex offender" or an
"offender against minors", as defined in this section.
. . . .
"Sex offender" means:
(1) A person who is or has been convicted at any
time, whether before or after May 9, 2005, of a
"sexual offense"; or
(2) A person who is or has been charged at any time,
whether before or after May 9, 2005, with a
"sexual offense" and is or has been found unfit
to proceed and is or has been released into the
community or who is acquitted due to a physical
or mental disease, disorder, or defect pursuant
to chapter 704 and is released into the
community.
"Sexual offense" means an offense that is:
(1) Set forth in section 707–730(1), 707–731(1),
707–732(1), 707–733(1)(a), 707–733.6,
712–1202(1), 712–1203(1), but excludes conduct
that is criminal only because of the age of the
victim, as provided in section 707–730(1)(b), or
section 707–732(1)(b) if the perpetrator is
under the age of eighteen[.]
. . . .
§ 846E-2 Registration requirements. (a) A covered
offender shall register with the attorney general and comply
with the provisions of this chapter for life or for a
shorter period of time as provided in this chapter.
Registration under this subsection is required whenever the
covered offender, whether or not a resident of this State,
remains in this State for more than ten days or for an
aggregate period exceeding thirty days in one calendar year.
A covered offender shall be eligible to petition the court
in a civil proceeding for an order that the covered
offender's registration requirements under this chapter be
terminated, as provided in section 846E-10.
5/
Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d 1293, 1303
(1995).
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(1) We find Falevai's fourth contention – that the
District Court failed to conduct a proper Tachibana colloquy –
dispositive.
The validity of a defendant's waiver of the right to
testify in a criminal case is a question of constitutional law
reviewed by this court under the right/wrong standard. State v.
Celestine, 142 Hawai#i 165, 169, 415 P.3d 907, 911 (2018). In
State v. Martin, 146 Hawai#i 365, 378-79, 463 P.3d 1022, 1035-36
(2020), the Hawai#i Supreme Court summarized the relevant case
law as follows:
Our law protects both the right to testify and the
right not to testify. State v. Celestine, 142 Hawai #i 165,
169, 415 P.3d 907, 911 (2018). Tachibana v. State, 79
Hawai#i 226, 900 P.2d 1293 (1995), established the
requirement that when a defendant in a criminal case
indicates an intention not to testify, the trial court must
advise the defendant of the right to testify and must obtain
an on-the-record waiver of the right. 79 Hawai #i at 236,
900 P.2d at 1303. We stated that this advisement should
consist of informing the defendant (1) that they have a
right to testify, (2) that if they want to testify, no one
can prevent them from doing so, and (3) that if they
testify, the prosecution will be allowed to cross-examine
them. 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. We also
stated that in connection with the privilege against
self-incrimination, the defendant should also be advised (4)
that they have a right not to testify and (5) that if they
do not testify, then the jury can be instructed about that
right. Id. (citations omitted). In a bench trial,
defendants must be advised that if they exercise their right
not to testify, no inference of guilt may be drawn for
exercising this right, i.e., that a decision not to testify
cannot be used against a defendant by the judge in deciding
the case. State v. Monteil, 134 Hawai#i 361, 371-72, 341
P.3d 567, 577-78 (2014).
After Tachibana, we also held that a second component
of the Tachibana colloquy involves the court engaging in a
true "colloquy" with the defendant. Celestine, 142 Hawai #i
at 170, 415 P.3d at 912[ (]citing State v. Han, 130 Hawai #i
83, 90-91, 306 P.3d 128, 135-36 (2013)[)]. This requires "a
verbal exchange between the judge and the defendant 'in
which the judge ascertains the defendant's understanding of
the proceedings and of the defendant's rights.'" Celestine,
142 Hawai#i at 170, 415 P.3d at 912 (citing Han, 130 Hawai #i
at 90, 306 P.3d at 135 (emphasis omitted)).
. . . .
A defendant's right to testify is violated when the
colloquy does not establish "an objective basis for finding
that the defendant knowingly, intelligently, and voluntarily
gave up" their right to testify. Han, 130 Hawai #i at 91,
306 P.3d at 136.
146 Hawai#i at 378-79, 463 P.3d at 1035-36 (original brackets and
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footnotes omitted).
Here, Falevai challenges the colloquy that occurred
immediately prior to the close of his case. At that time, the
following exchange occurred:
THE COURT: . . . Before the defense rests, let me
briefly address your client.
[DEFENSE COUNSEL]: Yes.
THE COURT: Good afternoon, Mr. Falevai.
THE DEFENDANT: Good afternoon, Judge.
THE COURT: You understand that you have the right to
testify in this case?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand that if you want to
testify, no one can stop you from testifying including your
own attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that if you testify, the
State may cross-examine you?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you had a chance to speak with your
attorney about your right to testify?
THE DEFENDANT: Yes, I have.
THE COURT: Was he able to answer any questions you
might have had?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions for me about
your right to testify?
THE DEFENDANT: No, Your Honor.
THE COURT: Do you know that you have the right not to
testify in this case?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if you do not
testify, the court will not draw any negative inferences
from that decision?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that if you do not
testify, the State may not cross-examine you?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that if you do not want
to testify, no one can force you to testify?
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THE DEFENDANT: Yes.
THE COURT: Have you had a chance to speak with your
attorney about your right not to testify?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Was he able to answer any questions you
might have had?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions for me about
your right not to testify?
THE DEFENDANT: No, Your Honor.
THE COURT: Have you considered your right to testify
as well as your right not to testify?
THE DEFENDANT: Yes.
THE COURT: Are you prepared to make a decision?
THE DEFENDANT: Yes, I am.
THE COURT: What is your decision?
THE DEFENDANT: I choose not to testify.
THE COURT: Is anyone stopping or preventing you from
testifying?
THE DEFENDANT: No, Judge.
THE COURT: Thank you.
On appeal, Falevai argues:
What is missing from that colloquy are any questions about
what medication Falevai was on at that moment and how it
affects him. He is a schizophrenic who was on psychiatric
medication at that time. No question was ever asked as to
whether he had any alcohol in the previous 24 hours nor
about his level of education or understanding of English.
All of Falevai's answers were short, often just one word.
This is not a true colloquy.
The validity of a waiver of the fundamental right to
testify is reviewed under the totality of the facts and
circumstances of the particular case. Martin, 146 Hawai#i at
379, 463 P.3d at 1036. In this context, the presence of a
"salient fact" in the record can create the need for a more
extensive colloquy to ensure the defendant's understanding. See
Han, 130 Hawai#i at 92, 306 P.3d at 137; see also State v.
Ichimura, SCWC-XX-XXXXXXX, 2017 WL 2590858, at *6 (Haw. June 15,
2017) ("[T]his court has stated that the presence of a 'salient
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fact' concerning the defendant's ability to understand the
colloquy 'requires that a court effectively engage the defendant
in a dialogue that will effectuate the rationale behind the
colloquy and the on-the-record waiver requirements as set forth
in Tachibana.'" (original brackets omitted) (quoting Han, 130
Hawai#i at 92, 306 P.3d at 137)). Salient facts include a
language barrier or mental illness. See Martin, 146 Hawai#i at
379, 463 P.3d at 1036; Han, 130 Hawai#i at 92, 306 P.3d at 137;
see also Ichimura, 2017 WL 2590858, at *6 (citing United States
v. Duarte–Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997), for the
proposition that "a 'salient fact,' like a defendant's language
barrier or mental illness, that is known to the court, 'puts the
court on notice that the defendant's waiver might be less than
knowing and intelligent,' and serves as an additional reason for
the court to engage in a colloquy with the defendant 'to carry
out its "serious and weighty responsibility" of ensuring that a
defendant's jury waiver is voluntary, knowing, and intelligent'"
(brackets omitted)).
In Martin, the supreme court applied these principles
in determining whether the trial court's colloquy regarding the
defendant's right to testify was deficient. 146 Hawai#i at 378,
463 P.3d at 1035. The defendant argued that the colloquy was not
a "true colloquy" because the trial court recited a "litany of
rights" without obtaining a response as to the defendant's
understanding of the fundamental principles pertaining to his
rights, and because evidence of the defendant's mental illness
was a salient fact in the case. Id. at 379, 463 P.3d at 1036.
There, the trial court had conducted the following colloquy prior
to the close of the defendant's case:
THE COURT: Okay. So you are [the defendant]?
THE DEFENDANT: Yes.
THE COURT: Okay. Are you thinking clearly?
THE DEFENDANT: Yes.
THE COURT: Are you presently sick?
THE DEFENDANT: No.
THE COURT: Within the past 48 hours have you taken any
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pills, drugs, medication, or drank any alcohol?
THE DEFENDANT: Um, ibuprofens.
THE COURT: Okay. You're suffering from pain?
THE DEFENDANT: Yes.
THE COURT: Okay. Despite your pain and the
medication, are you able to think clearly now?
THE DEFENDANT: Yes.
THE COURT: Okay. As I discussed with you before the
start of the trial, or at the start of the trial, you
have the constitutional right to testify in your own
defense. Although you should consult with your lawyer
regarding the decision to testify, it is your decision
and no one can prevent you from testifying should you
choose to do so. If you decide to testify, the
prosecution will be allowed to cross-examine you. You
also have a constitutional right not to testify and to
remain silent. If you choose not to testify, the jury
will be instructed that it cannot hold your silence
against you in deciding your case. Did you understand
what I had to say?
THE DEFENDANT: Yes.
THE COURT: I have been advised by your lawyer that you
do not intend to testify in regard to this case; is
this true?
THE DEFENDANT: Yes.
THE COURT: And is it your decision not to testify?
THE DEFENDANT: Yes, it is.
Id.
The supreme court held that under the totality of
circumstances, the trial court's colloquy provided "an objective
basis for finding that [the defendant] knowingly, intelligently,
and voluntarily gave up" his right to testify. Id. at 380, 463
P.3d at 1037 (citing Han, 130 Hawai#i at 91, 306 P.3d at 136).
With respect to the defendant's alleged mental illness, the
supreme court noted that in addition to following the
requirements of applicable case law, the trial court had "asked
various questions with regard to the clarity of [the defendant's]
state of mind at the time of the colloquy." Id. Cf. Ichimura,
2017 WL 2590858, at *7 (testimony that the defendant "had a
'handicap' for which she took medication, and that she was being
treated by a psychiatrist[, . . .] was a 'salient fact' of which
the circuit court was aware, and thus should have served as an
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additional reason for the court to conduct a more searching
inquiry of [the defendant], rather than relying on her 'Uh-huh'
response to a list of rights").
Here, the District Court's colloquy with Falevai shared
some similarities with the colloquy in Martin. For example, the
District Court engaged in a verbal exchange with Falevai while
informing him of the right to testify and the right not to
testify and of the protections associated with these rights.
However, through the trial testimony of Dr. Reneau Kennedy (Dr.
Kennedy), whom the court found to be qualified as an expert in
clinical and forensic psychology, the District Court was put on
notice that Falevai had a mental illness – schizophreniform.
Dr. Kennedy testified that Falevai was still being treated by a
psychiatrist and taking prescribed medication for his illness.
These were "salient facts" that required the court to "engage the
defendant in a dialogue that [would] effectuate the rationale
behind the colloquy and the on-the-record waiver requirements as
set forth in Tachibana[,]" Martin, 146 Hawai#i at 380 463 P.3d at
1037 (citing Han, 130 Hawai#i at 92, 306 P.3d at 137), and
"should have served as an additional reason for the court to
conduct a more searching inquiry of [Falevai]" to ensure that his
waiver was voluntary, knowing and intelligent. Ichimura, 2017 WL
2590858, at *7. But unlike the colloquy in Martin, the colloquy
here did not include any questions regarding the clarity of
Falevai's mind at the time of the colloquy or otherwise ensure
that Falevai's waiver of his right to testify was voluntary and
intelligent in light of his mental illness and related
medication. Given the totality of the circumstances, we cannot
conclude that Falevai's waiver was voluntarily and intelligently
made.
"Once a violation of the constitutional right to
testify is established, [a] conviction must be vacated unless the
State can prove that the violation was harmless beyond a
reasonable doubt." Tachibana, 79 Hawai#i at 240, 900 P.2d at
1307 (emphasis added). "[I]t is inherently difficult, if not
impossible, to divine what effect a violation of the defendant's
constitutional right to testify had on the outcome of any
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particular case." State v. Hoang, 94 Hawai#i 271, 279, 12 P.3d
371, 379 (App. 2000). Here, Falevai was acquitted by reason of
mental disease or defect, but because he was acquitted on that
basis, and not due to the alleged failure of the State to prove
the elements of the offense, he is subject to required
registration under HRS §§ 846E-1 and -2.6/ The record does not
offer any indication as to what Falevai would have said under
oath on the witness stand, and how his testimony might have
affected the District Court's conclusion that he knowingly
touched the CW's buttocks without her consent. Thus, it cannot
be said that the District Court's inadequate colloquy was
harmless beyond a reasonable doubt. See Tachibana, 79 Hawai#i at
240, 900 P.2d at 1307; State v. Pomroy, 132 Hawai#i 85, 94, 319
P.3d 1093, 1102 (2014).
This is an unusual case. Had Falevai been convicted,
and had substantial evidence supported the conviction, double
jeopardy would not have precluded a retrial, and the appropriate
remedy would have been to vacate the judgment of conviction and
remand the case for a new trial. See Pomroy, 132 Hawai#i at 95,
319 P.3d at 1103. But Falevai was acquitted of assault in the
fourth degree and he cannot be retried for that offense. See
State v. Deedy, 141 Hawai#i 208, 218, 407 P.3d 164, 174 (2017)
("It is beyond dispute that 'the constitutional guarantee against
double jeopardy protects against a second prosecution for the
same offense after acquittal.'" (some internal quotation marks
and brackets omitted) (quoting State v. Lee, 91 Hawai#i 206, 209,
6/
Falevai would qualify as a "sex offender" under HRS § 846E-1,
because he is "[a] person who . . . has been charged . . . with a 'sexual
offense' [which includes sexual assault in the fourth degree] and . . . who is
acquitted due to a physical or mental disease, disorder, or defect pursuant to
chapter 704 and is released into the community."
After acquitting Falevai pursuant to HRS chapter § 704, the District
Court continued the proceedings for a post-acquittal hearing as to the issue
of present dangerousness. On November 8, 2018, at the post-acquittal hearing,
the District Court, among other things, granted Falevai's requests (a) for
discharge, and (b) to stay sex offender registration pending appeal. See HRS
§ 704-411(1)(c) (permitting discharge from custody upon a finding of the
absence of present dangerousness).
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982 P.2d 340, 343 (1999)));7/ Whiting v. State, 88 Hawai#i 356,
360, 966 P.2d 1082, 1086 (1998) ("[H]aving determined that a
conviction of manslaughter due to [Extreme Mental or Emotional
Distress] is deemed an acquittal of murder, we hold that double
jeopardy bars [the defendant's] reprosecution for second degree
murder").8/ Under these circumstances, we conclude that the
appropriate remedy is to vacate the Judgment and the Amended
Judgment and to remand to the District Court with instructions to
enter a judgment of acquittal that is not based on HRS chapter
704.
(2) Given our conclusion as to Falevai's fourth
contention, we do not reach his remaining contentions.
For the reasons discussed above, we vacate the July 24,
2018 Judgment and Notice of Entry of Judgment and the November 8,
2018 Amended Judgment and Notice of Entry of Judgment, entered in
the District Court of the First Circuit, Kâne#ohe Division. The
case is remanded to the District Court with instructions to enter
a judgment of acquittal that is not based on HRS chapter 704, and
7/
In Deedy, the supreme court also stated:
This court has adopted the [United States] Supreme Court's
test in determining whether a defendant is deemed acquitted:
"A defendant is acquitted only when 'the ruling of the
judge, whatever its label, actually represents a resolution
[in defendant's favor], correct or not, of some or all of
the factual elements of the offense charged.'" State v.
Dow, 72 Haw. 56, 65, 806 P.2d 402, 407 (1991) (alteration in
original) (quoting United States v. Martin Linen Supply Co.,
430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)).
141 Hawai#i at 218-19, 407 P.3d 164, 174-75. In turn, the United States
Supreme Court has "defined an acquittal to encompass any ruling that the
prosecution's proof is insufficient to establish criminal liability for an
offense." Evans v. Michigan, 568 U.S. 313, 318-19 (2013) (citing United
States v. Scott, 437 U.S. 82, 98, and n.11 (1978); Burks v. United States, 437
U.S. 1, 10 (1978); Martin Linen Supply Co., 430 U.S. at 571). "Thus an
'acquittal' includes . . . a 'factual finding that necessarily establishes the
criminal defendant's lack of criminal culpability,' . . . ." Id. (brackets
omitted) (quoting Scott, 437 U.S. at 91, 98, and n. 11); see Burks, 437 U.S.
at 10 (double jeopardy prohibited a second trial where the government had
failed to come forward with sufficient proof of the defendant's capacity to be
responsible for criminal acts).
8/
Remanding the case for a new trial in which conviction is not an
option is not appropriate in these circumstances. See Whiting, 88 Hawai #i at
361, 966 P.2d at 1087 (rejecting a similar remedy authorized by this court,
and stating in part: "[W]hen a constitutional right such as the protection
against double jeopardy is plainly implicated, its assertion cannot be
rejected by judicial gerrymandering of the penal process").
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for further proceedings consistent with this Summary Disposition
Order.
DATED: Honolulu, Hawai#i, May 10, 2022.
On the briefs:
/s/ Katherine G. Leonard
Earle A. Partington Presiding Judge
for Defendant-Appellant.
Stephen K. Tsushima, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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