State v. Neves ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-MAY-2022
08:10 AM
Dkt. 43 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
ETHAN G.K. NEVES, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTC-18-505607)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Ethan G.K. Neves (Neves) appeals
from the Judgment filed December 30, 2019 (Judgment), in the
District Court of the First Circuit (District Court)1 convicting
Neves of driving with a revoked, suspended or otherwise
restricted motor vehicle license pursuant to Hawaii Revised
Statutes (HRS) § 291E-62(a)(1), (2) and (c)(1).2
1
The Honorable James Kawashima presided.
2
HRS § 291E-62 (Supp. 2018) provides in part:
(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted . . . shall operate or assume actual physical
control of any vehicle:
(1) In violation of any restrictions placed on the
person's license;
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Neves raises four points of error: (1) the
District Court failed to engage in a sufficient Tachibana
colloquy with Neves; (2) the Tachibana colloquy error was not
harmless beyond a reasonable doubt; (3) the District Court
improperly admitted into evidence Plaintiff-Appellee State of
Hawai#i's (State) Exhibit 7 - the Notice of Administrative
Revocation (NOAR); and (4) there was insufficient evidence to
establish Neves' guilt beyond a reasonable doubt.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issued raised by the parties, we
affirm.
Points of error (1) and (2): During a bench trial, the
District Court heard from two witnesses, considered seven
exhibits, and conducted the following colloquy under Tachibana v.
State, 79 Hawai#i 226, 237, 900 P.2d 1293, 1304 (1995):
THE COURT: Okay. You can remain seated, Mr. Neves --
well, actually, no. You do have to rise, Mr. Neves. I have
to go through the rights to testify again.
2
(...continued)
(2) While the person's license or privilege to
operate a vehicle remains suspended or revoked;
. . . .
(c) Any person convicted of violating this section shall
be sentenced as follows without possibility of probation or
suspension of sentence:
(1) For a first offense, or any offense not preceded
within a five-year period by conviction for an
offense under this section . . .:
(A) A term of imprisonment of not less than
three consecutive days but not more than
thirty days;
(B) A fine of not less than $250 but not more
than $1,000;
(C) Revocation of license and privilege to
operate a vehicle for an additional year;
and
(D) Loss of the privilege to operate a vehicle
equipped with an ignition interlock
device, if applicable[.]
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
So you understand what your lawyer said, defense
rests?
THE DEFENDANT: Yes.
THE COURT: And just to be safe, in your words, what
does that mean?
THE DEFENDANT: That we are done arguing.
THE COURT: Okay. It also means that you will not
have the opportunity to testify and tell your side of the
story. You understand that?
THE DEFENDANT: Yes.
THE COURT: And if you want to tell your side of the
story under oath, you can do it even if your lawyer thinks
you shouldn't. You understand?
THE DEFENDANT: Yes.
THE COURT: It does mean the prosecutor will get to
ask you questions, too, however. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: But if you want to remain silent, you also
have that right. You understand?
THE DEFENDANT: Yes.
THE COURT: And if you choose to not testify, no one
can force you to testify. You understand?
THE DEFENDANT: Yes.
THE COURT: And your silence will not be used against
you and cannot be used against you if you choose not to
testify. You understand?
THE DEFENDANT: Yes.
THE COURT: You have any questions for me about these
rights to testify or not testify?
THE DEFENDANT: I do not.
THE COURT: Then what is your choice?
THE DEFENDANT: Not testify.
THE COURT: Thank you. You can have a seat.
And the court does find defendant's knowingly,
voluntarily, intelligently waiving his right to testify and
exercising his right to remain silent in this matter.
Proceed to closing. State.
"In determining whether a waiver of the right to
testify was voluntarily and intelligently made, this court looks
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to the totality of the facts and circumstances of each particular
case." State v. Celestine, 142 Hawai#i 165, 171, 415 P.3d 907,
913 (2018) (citation omitted).
A Tachibana colloquy requires the following:
There are two components of a Tachibana colloquy. The first
is informing the defendant of fundamental principles
pertaining to the right to testify and the right not to
testify. We stated that this advisement should consist of
the following information:
that he [or she] has a right to testify, that if he
[or she] wants to testify that no one can prevent him
[or her] from doing so, [and] that if he [or she]
testifies the prosecution will be allowed to
cross-examine him [or her]. In connection with the
privilege against self-incrimination, the defendant
should also be advised that he [or she] has a right
not to testify and that if he [or she] does not
testify then the jury can be instructed about that
right.
The second component of the Tachibana colloquy
involves the court engaging in a true "colloquy" with the
defendant. This portion of the colloquy consists of 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."
Id. at 170, 415 P.3d at 912 (citations and underline omitted).
First, Neves argues that the Tachibana colloquy was
defective because it was posed after Neves rested. Timing alone,
without more, does not constitute reversible error.
[T]he ideal time to conduct the colloquy is
immediately prior to the close of the defendant's case.
Therefore, whenever possible, the trial court should conduct
the colloquy at that time.
If the trial court is unable to conduct the colloquy
at that time, however, such failure will not necessarily
constitute reversible error. If a colloquy is thereafter
conducted and the defendant's waiver of his or her right to
testify appears on the record, such waiver will be deemed
valid unless the defendant can prove otherwise by a
preponderance of the evidence.
Tachibana, 79 Hawai#i at 237, 900 P.2d at 1304 (footnote and
citation omitted). Neves does not proffer any evidence or allege
any harm caused by the timing of the Tachibana colloquy. As
such, Neves' claimed error with respect to timing of the
Tachibana colloquy is without merit.
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Second, Neves argues that the District Court did not
engage in a true Tachibana colloquy because the District Court
failed to include background questions such as the ability to
understand English, education, mental status, and state of mind.
There is no requirement that the District Court ask defendants
background questions during a Tachibana colloquy. See Celestine
142 Hawai#i at 170, 415 P.3d at 912 (containing no background
question requirement). Moreover, the record shows that the
District Court asked Neves background questions, such as his
name, age, and ability to understand English, at the beginning of
trial, and Neves intelligently responded to each question during
the District Court's colloquies. The District Court engaged in a
true colloquy and Neves' argument to the contrary lacks merit.
Third, Neves argues that the colloquy was defective
because the District Court "never listed Defendant's rights in
terms of the 'right to testify' and the 'right not to testify.'"
Neves disregards the substance of the colloquy, particularly
where the District Court informed Neves of all Tachibana elements
and engaged in a true colloquy, and that no fewer than six times
the District Court asked Neves whether he "understood" aspects of
the colloquy and Neves responded intelligently, including stating
his choice that he would "not testify." Thus, Neves' point of
error with respect to the District Court's wording of the
colloquy lacks merit.
Under the totality of the facts and circumstances, the
record supports the District Court's finding that Neves' waiver
of the right to testify was voluntarily and intelligently made.
Consequently, Neves' second point of error – asserting a
Tachibana colloquy error was not harmless beyond a reasonable
doubt – is also without merit.
Point of error (3): In his third point of error, Neves
asserts the District Court erred in admitting the NOAR because it
was not certified and because it was part of the police report
such that it could not "be used to obviate the public records
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hearsay exception." Neves relies on State v. Abrigo, 144 Hawai#i
491, 445 P.3d 72 (2019), but Abrigo is inapposite to this case.
"Evidentiary rulings are reviewed for abuse of
discretion, unless application of the rule admits of only one
correct result, in which case review is under the right/wrong
standard." State v. Loa, 83 Hawai#i 335, 348, 926 P.2d 1258,
1271 (1996) (citation omitted).
In this case, Neves was charged with driving on
November 21, 2018, while his license was suspended or revoked due
to operation of a vehicle under the influence of an intoxicant
(OVUII). Officer James Spiker (Officer Spiker) testified that
previously, on October 11, 2018, he had completed the NOAR when
Neves was arrested for OVUII. Officer Spiker testified as to
Neves' identity, that Officer Spiker filled in the NOAR with
information obtained from Neves while he was detained at the
police station, and that Neves signed the form after it was read
to him verbatim. Thus, Officer Spiker authenticated the NOAR and
it did not need to be certified by the Administrative Driver's
License Revocation Office (ADLRO).
Further, the NOAR form was not part of the police
report. ADLRO is a component of the Hawai#i Judiciary, acting
under the authority of the Administrative Director of the Courts
and in accordance with HRS Chapter 291E. See HRS § 291E-1;3 HRS
ch. 291E, pt. III. A police officer completes the NOAR and it is
submitted to the ADLRO for administrative review. See §§ 291E-
33(c), 291E-36(a)(6) or (b)(2), 291E-37. As Officer Spiker
testified, it is a form created by ADLRO, he filled out the NOAR
related to Neves, read it to Neves, and sent it to ADLRO. Given
the evidence, the District Court did not abuse its discretion by
admitting the NOAR for "informational and indentificational
purposes."
3
For purposes of HRS Chapter 291E, "Director" is defined as "the
administrative director of the courts or any other person within the judiciary
appointed by the director to conduct administrative reviews or hearings or
carry out other functions relating to administrative revocation under part
III.
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Point of error (4): In his final point of error, Neves
asserts there was insufficient evidence for a conviction. "The
test on appeal is not whether guilt is established beyond a
reasonable doubt, but whether there was substantial evidence to
support the conclusion of the trier of fact." State v. Batson,
73 Haw. 236, 248, 831 P.2d 924, 931 (1992) (citations omitted).
Contrary to Neves' assertion, the record includes,
inter alia: testimony of two officers identifying Neves as the
individual cited on October 11, 2018, and November 21, 2018; a
NOAR completed with information obtained from Neves (Exhibit 7)
and a certified ADLRO decision (Exhibit 2) establishing a license
revocation period of November 11, 2018, through November 10,
2019; and a certified traffic abstract (Exhibit 1) and a photo of
a State identification card (Exhibit 4), which when viewed
together with other exhibits and testimony, identify Neves,
contain Neves' name and address, and also include matching dates
of birth and the last four digits of a social security number.
Taken together, there was sufficient evidence to
support the District Court's judgment. See State v. Kam, 134
Hawai#i 280, 288-89, 339 P.3d 1081, 1089-90 (2014) (citation
omitted) (holding that "matches" in various exhibits containing
defendant's name, address, date of birth, and last four digits of
social security number constituted sufficient evidence of a prior
OVUII conviction).
For the reasons discussed above, the Judgment filed on
December 30, 2019, in the District Court of the First Circuit, is
affirmed.
DATED: Honolulu, Hawai#i, May 9, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Samuel P. King, Jr.,
For Defendant-Appellant /s/ Keith K. Hiraoka
Associate Judge
Loren J. Thomas,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
for Plaintiff-Appellee Associate Judge
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