429 P.3d 603 (Hawaii App. 2018), CAAP-17-0000370, State v. Michel
|Citation:||429 P.3d 603, 143 Hawaii 281|
|Party Name:||STATE of Hawaii, Plaintiff-Appellee, v. Michael E. MICHEL, Defendant-Appellant|
|Attorney:||Alen M. Kaneshiro, for Defendant-Appellant. Donn Fudo, Deputy Prosecuting Attorney, for Plaintiff-Appellee.|
|Judge Panel:||By: Ginoza, Chief Judge, Leonard and Reifurth, JJ.|
|Case Date:||October 24, 2018|
|Court:||Court of Appeals of Hawai'i, Intermediate|
This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (CASE NO. 1DTC-16-061202)
On the briefs:
Alen M. Kaneshiro, for Defendant-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, for Plaintiff-Appellee.
By: Ginoza, Chief Judge, Leonard and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Michael E. Michel (Michel) appeals from a "Notice of Entry of Judgment and/or Order and Plea/Judgment," entered by the District Court of the First Circuit, Honolulu Division (district court), on April 19, 2017. The district court convicted Michel of one count of excessive speeding, in violation of Hawaii Revised Statutes (HRS) § § 291C-105(a)(1)(2) and (c)(1) (2007 & Supp. 2017).2
On appeal, Michel contends: (1) the district court abused its discretion in denying his motion to compel discovery; (2) there was no substantial evidence to support his conviction because Plaintiff-Appellee State of Hawaii (State) failed to lay the required foundation for admission of a laser speed reading and the applicable speed limit; and (3) the district court failed to administer the ultimate Tachibana colloquy.
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, we resolve Michels points of error as follows and reverse.3
Michel argues, among other things, that the district court violated his right to testify by failing to provide him with an "ultimate" Tachibana colloquy, and the omission was not harmless beyond a reasonable doubt. The State concedes these points. However, the States concession "is not binding upon an appellate court[.]" State v. Hoang, 93 Hawaii 333, 336, 3 P.3d 499, 502 (2000) (quoting Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945) ). "[A]ppellate courts have an independent duty first to ascertain that the confession of error is supported by the record and well-founded in law and second to determine that such error is properly preserved and prejudicial. " State v. Veikoso, 102 Hawaii 219, 221-22, 74 P.3d 575, 577-78 (2003) (quoting Hoang, 93 Hawaii at 336, 3 P.3d at 502).
The district court erred in failing to provide Michel with a colloquy on his right to testify in accordance with Tachibana v. State, 79 Hawaii 226, 236, 236 n.7, 900 P.2d 1293, 1303, 1303 n.7 (1995); see also
State v. Pomroy, 132 Hawaii 85, 92-93, 319 P.3d 1093, 1101-1102 (2014). Although the district court gave a pre-trial advisement to Michel on his right to testify and his right not to testify, the district court failed to engage in a Tachibana colloquy during trial before the defense rested its case. Because it is impossible to determine what effect the omission had on the outcome of the case, the error was not harmless beyond a reasonable doubt. See Tachibana, 79 Hawaii at 240, 900 P.2d at 1307.
Although the trial was defective due to the lack of an ultimate Tachibana colloquy, we must review Michels contention on appeal that there was insufficient evidence to support his conviction before remanding for a new trial. See State v. Davis, 133 Hawaii 102, 120, 324 P.3d 912, 930 (2014). Based on our review of the record in this case, and considering the applicable case law, the foundation was inadequate for admission of the laser speed reading because the State failed to demonstrate that Officer Russell Maeshiro (Officer Maeshiro) was...
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