State v. Williams ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUL-2021
07:48 AM
Dkt. 55 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
JAISAN S. WILLIAMS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
WAHIAWA DIVISION
(CASE NO. 1DTC-19-027684)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
Defendant-Appellant Jaisan S. Williams (Williams)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, entered on December 17, 2019, in the District
Court of the First Circuit, Wahiawa Division (District Court).1/
Following a bench trial, Williams was convicted of Excessive
Speeding, in violation of Hawaii Revised Statutes (HRS) § 291C-
105(a)(1) and/or (a)(2) (Supp. 2008).2/
On appeal, Williams contends that: (1) the District
Court failed to conduct an adequate Tachibana3/ colloquy; and (2)
there was no substantial evidence to support Williams's
1/
The Honorable Maura M. Okamoto presided over the trial and
convicted Williams. The Honorable Summer Kupau-Odo presided over sentencing
and issued the Judgment.
2/
HRS § 291C-105(a) provides: "(a) No person shall drive a motor
vehicle at a speed exceeding: (1) The applicable state or county speed limit
by thirty miles per hour or more; or (2) Eighty miles per hour or more
irrespective of the applicable state or county speed limit."
3/
Tachibana v. State, 79 Hawai#i 226, 236 n.7, 900 P.2d 1293, 1303
n.7 (1995).
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
conviction, where the State failed to lay the requisite
foundation for admission of a laser device speed reading.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Williams's points of error as follows:
(1) Williams argues that the District Court's
Tachibana colloquy was deficient and, as a result, it cannot be
concluded that Williams's waiver of his right to testify was
knowing, intelligent, and voluntary.
The State concedes that the District Court erred in
failing to conduct an adequate Tachibana colloquy, and does not
contend the error was harmless. Nevertheless, "this court must
still determine whether the error was properly preserved, was
prejudicial to [Williams], and is supported by the record."
State v. Hoang, 93 Hawai#i 333, 336, 3 P.3d 499, 502 (2000). We
must also "give due consideration" to the State's concession of
error, as "[a] prosecutor's confession, although not binding on
an appellate court, is 'entitled to great weight.'" State v.
Eduwensuyi, 141 Hawai#i 328, 337, 409 P.3d 732, 741 (2018)
(quoting Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr.
1945)).
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, 463 P.3d 1022(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
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
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)).
Id. at 378, 463 P.3d at 1035 (footnote omitted).
The supreme court has found Tachibana advisements
deficient where they "did not fully advise [the defendant] of his
rights . . . ." State v. Pomroy, 132 Hawai#i 85, 92, 319 P.3d
1093, 1100 (2014). In Pomroy, for example, the supreme court
ruled that the trial court's ultimate Tachibana colloquy
"incompletely followed Tachibana's directive" because it failed
to advise the defendant that he had the right not to testify and
that no one could prevent him from testifying. Id. at 92, 319
P.3d at 1100. Similarly, in Eduwensuyi, the supreme court found
that the trial court's ultimate Tachibana colloquy was deficient
because it failed to advise the defendant that no one could
prevent him from testifying. 141 Hawai#i at 333, 409 P.3d at
737.
Here, after the State rested, the District Court
engaged in the following colloquy with Williams:
THE COURT: . . . . So Mr. Williams, you may recall,
although it was a little while ago when we started this
trial, I talked to you at that time about your right to
testify at a trial and also your right not to testify. And
. . . I recall telling you that this is your decision to
make. So now I just want to say exactly the same things
again to tell you. And I know you're nodding your head, but
if you could answer.
So you understand you have a right to testify if you
want to testify?
THE DEFENDANT: Yes.
THE COURT: Okay. And you know that this is your
decision to make?
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
THE DEFENDANT: Yes.
THE COURT: And even though you may have advice from
your attorney, it is your decision --
THE DEFENDANT: Yes.
THE COURT: -- and no one can force you, you understand
that?
THE DEFENDANT: Yes.
THE COURT: Okay. And you also understand that, again,
you have a right not to say anything, not to testify, and if
you do that, again it is your decision?
THE DEFENDANT: Yes, ma'am.
THE COURT: Okay? And so just to be absolutely clear,
tell me what is your decision at this time?
THE DEFENDANT: Not to testify, ma'am.
THE COURT: Okay. Thank you.
As the State acknowledges, the District Court did not
inform Williams during this colloquy that if he testified, the
State would be able to cross-examine him, and if he did not
testify, the court would not hold that decision against him. In
light of these deficiencies under prevailing case law, and given
the State's concession, we cannot conclude that the District
Court properly established Williams's understanding of his right
to testify. See Pomroy, 132 Hawai#i at 92, 319 P.3d at 1100;
Eduwensuyi,141 Hawai#i at 333, 337, 409 P.3d at 737, 741.
Therefore, the record does not demonstrate that Williams's waiver
of his right to testify was knowingly, intelligently and
voluntarily made.
"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 Hawai#i at 240, 900 P.2d at1307 (citing State v. Silva, 78 Hawai#i 115, 125, 890 P.2d 702,
712 (App. 1995)). Here, the record does not contain any
indication of what Williams would have said if he had testified,
and the State does not argue that the defective colloquy was
harmless beyond a reasonable doubt. See State v. Hoang, 94
Hawai#i 271, 279, 12 P.3d 371, 379 (App. 2000) ("In general, it
is inherently difficult, if not impossible, to divine what effect
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
a violation of the defendant's constitutional right to testify
had on the outcome of any particular case."). Based on our
review of the record, we cannot conclude that the District
Court's deficient colloquy was harmless beyond a reasonable
doubt.
We therefore vacate Williams's conviction for Excessive
Speeding.
(2) Williams also argues that the District Court abused
its discretion in allowing Honolulu Police Department Officer
Zachary Plevel (Officer Plevel) to testify about Williams's speed
as indicated on a "TruSpeed" LIDAR speed measuring device (Laser
Device), "where the State failed to lay the requisite foundation"
for the testimony. Williams further argues that without the
testimony as to the speed reading, there was no substantial
evidence to support Williams's conviction.
The State argues in part that Williams waived the
evidentiary issue by failing to preserve it at trial. See State
v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003) ("[I]f a
party does not raise an argument at trial, that argument will be
deemed to have been waived on appeal[.]"). We agree.
To lay a foundation for the introduction of a speed
measurement by a laser device, the State must demonstrate that:
(1) the operator who used the device received training, the
nature and extent of which met the device manufacturer's
requirements (training prong), see State v. Amiral, 132 Hawai#i
170, 178, 319 P.3d 1178, 1186 (2014) (quoting State v. Assaye,
121 Hawai#i 204, 215, 216 P.3d 1227, 1238 (2009)); State v.
Gonzalez, 128 Hawai#i 314, 327, 288 P.3d 788, 801 (2012); and (2)
prior to making the reading at issue, the device's accuracy was
tested and determined to be operating properly according to the
manufacturer's recommended procedures (testing prong), see
Gonzalez, 128 Hawai#i 314, 325-26, 288 P.3d 788, 799-800. As to
the training prong, the State must show both (a) the
manufacturer's training requirements, and (b) the training
actually received by the operator of the device. See Amiral, 132
Hawai#i at 178, 319 P.3d at 1186 (citing Gonzalez, 128 Hawai#i at
327, 288 P.3d at 801).
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
During the State's case-in-chief, Williams objected
generally "for lack of foundation" to Officer Plevel's testimony
as to the speed reading from the Laser Device. "[A] 'lack of
foundation' objection generally is insufficient to preserve
foundational issues for appeal because such an objection does not
advise the trial court of the problems with the foundation."
State v. Long, 98 Hawai#i 348, 353, 48 P.3d 595, 600 (2002).
However, "an exception is recognized when the objection is
overruled and, based on the context, it is evident what the
general objection was meant to convey." Id.Here, the lack-of-foundation objection was overruled,
but the exception does not apply, because it is not evident based
on the context what the general objection was meant to convey.
Indeed, Williams's later arguments at trial and on appeal reveal
that he could have been objecting on at least two different
grounds to the admission of the speed reading from the Laser
Device. At trial, during closing argument, Williams asserted
among other things that "Officer Plevel did not testify as to
whether his training met the manufacturer's requirements."
However, Williams argued more specifically that "foundation for
the speed reading [was] lacking" because the State "[had not]
proven that the device was in proper working order," thus
asserting that the State had failed to meet the testing prong.4/
On appeal, Williams argues only that the speed reading lacked
4/
As Williams concluded his closing argument, he had the following
exchange with the District Court:
THE COURT: . . . .
And if you're . . . saying that they haven't met every
element, what are the elements that they haven't met?
[DEFENSE COUNSEL]: We would argue, Your Honor, that
they haven't proven that the device was in proper working
order, therefore foundation for the speed reading is
lacking.
THE COURT: Anything else?
[DEFENSE COUNSEL]: No.
THE COURT: . . . .
Okay. Is there anything else?
[DEFENSE COUNSEL]: No, Your Honor. We'd rest on that
argument.
6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
foundation because the State failed to establish "that the nature
and extent of Officer Plevel's training in the operation of the
[Laser Device] met the requirements indicated by the
manufacturer," thus asserting that the State failed to meet the
training prong. Accordingly, we cannot conclude that it is
evident based on the context what Williams's lack-of-foundation
objection during Officer Plevel's testimony was meant to convey.
We therefore conclude that Williams failed to sufficiently
preserve the evidentiary argument he is now making on appeal.
Upon review of the record, and viewing the evidence in
the strongest light for the prosecution, see State v. Bowman, 137
Hawai#i 398, 405, 375 P.3d 177, 184 (2016), we further conclude
there was substantial evidence supporting Williams's conviction
for Excessive Speeding.
Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, entered on
December 17, 2019, in the District Court of the First Circuit,
Wahiawa Division, is vacated. The case is remanded to the
District Court for further proceedings consistent with this
Summary Disposition Order.
DATED: Honolulu, Hawai#i, July 16, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Jon N. Ikenaga, Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
7