State v. Celestine, SCWC-14-0000335

CourtSupreme Court of Hawai'i
Writing for the CourtOPINION OF THE COURT BY POLLACK, J.
Citation415 P.3d 907
Docket NumberSCWC-14-0000335
Decision Date12 April 2018
Parties STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Ritalynn Moss CELESTINE, Petitioner/Defendant–Appellant.

415 P.3d 907

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,
v.
Ritalynn Moss CELESTINE, Petitioner/Defendant–Appellant.

SCWC-14-0000335

Supreme Court of Hawai‘i.

APRIL 12, 2018


James S. Tabe for petitioner

McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY POLLACK, J.

This appeal arises from a challenge by Ritalynn Moss Celestine to her conviction based on the validity of her waiver of the right to testify at trial. We hold that the record does not support a conclusion that Celestine’s waiver of the right to testify was voluntarily, intelligently, and knowingly made. Because the error was not harmless beyond a reasonable doubt, we vacate the conviction and remand the case for further proceedings.

415 P.3d 910

I. BACKGROUND

On February 24, 2013, around 2:40 a.m., an officer of the Honolulu Police Department driving along Meheula Parkway saw Celestine’s vehicle in the "planter area."1 It appeared to the officer that the vehicle had jumped the curb. After Celestine exited her vehicle, the officer noticed a strong odor of alcohol emitting from Celestine’s breath and that her eyes were red, bloodshot, and glassy. The officer requested that Celestine perform three field sobriety tests. According to the responding officer, Celestine demonstrated clues suggesting intoxication on all three tests, and she was subsequently placed under arrest.2

At the police station, an officer read Celestine the implied consent form for testing, which provided, inter alia, as follows: "if you refuse to submit to a breath, blood or urine test, you shall be subject to up to 30 days imprisonment and/or a fine of up to a thousand dollars." Celestine refused the blood test but opted to take the breath test. About 3:15 a.m., Celestine underwent an Intoxilyzer 8000 breath test. Celestine’s breath alcohol content was 0.098 grams of alcohol per 210 liters of breath.

A. District Court Proceedings

On March 12, 2013, Celestine was charged by complaint in the District Court of the First Circuit (district court) with operating a vehicle under the influence of an intoxicant in violation of Hawaii Revised Statutes (HRS) § 291E–61(a)(1)3 and/or (a)(3).4 Celestine pleaded not guilty to the charge.

At trial,5 prior to the presentation of evidence, the district court advised Celestine as follows:

THE COURT: Okay. Miss Celestine, to advise you of your rights at trial, at some point in time the State will rest, okay, and you’ll have an opportunity to testify or remain silent. Should you choose to remain silent, the Court can infer no guilt because of your silence. Basically, you’ll be invoking your Fifth Amendment right against self-incrimination.

Okay, you understand?

THE DEFENDANT: Yes, sir.

THE COURT: However, if you do wish to testify, you need to be sworn in, you’re also subject to cross-examination by the State’s attorney. Okay?

THE DEFENDANT[6 ]: Okay. And when the State does rest, okay, I’ll remind you again, okay, I have to finish this even though we’re doing this piece—piecemeal today. All right. Any questions? Okay. Thank you.

After the State rested,7 the defense advised the court that it would not be presenting evidence. The court then proceeded with the Tachibana colloquy:

THE COURT: Okay. For defense case, okay, Miss Moss Celestine?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. Just in caution, okay, I had explained to you, okay, on the 12th that you had the right to testify and the right to remain silent, okay. They call this your Tachibana rights. It’s based on a
415 P.3d 911
case law that the appellate court found that the trial court needed to inform you of your rights, okay. If you chose not to testify, the Court could infer no guilt because of your silence; basically you would be invoking your Fifth Amendment right against self-incrimination. Okay. On the other hand, if you do wish to testify, you need to be sworn in, you also will be subject to cross-examination by the State’s attorney.

Okay. Your attorney just indicated to the Court that you will not be testifying. Is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. Is anybody forcing you not to testify?

THE DEFENDANT: No, sir.

THE COURT: Okay. It’s your own decision?

THE DEFENDANT: Yes, sir.

THE COURT: Okay, very good....

Following the colloquy, the district court heard Celestine’s motion to suppress her breath test results, which the court denied.

The district court found Celestine guilty as charged under HRS § 291E–61(a)(1) and HRS § 291E–61(a)(3) and imposed sentence.8 Celestine timely filed a notice of appeal to the Intermediate Court of Appeals (ICA).

B. ICA Proceedings

In her opening brief, Celestine set forth two points of error: (1) the district court erred in denying her motion to suppress, and (2) the district court violated her constitutional right to testify when it failed to conduct a proper Tachibana colloquy. The State responded that the court’s Tachibana colloquy was adequate and that, in the alternative, any error was harmless beyond a reasonable doubt.

In a summary disposition order, the ICA affirmed Celestine’s conviction.9 The ICA concluded that the district court’s end-of-trial Tachibana colloquy was adequate and that Celestine’s waiver of the right to testify was validly made.10

Chief Judge Nakamura dissented, concluding that the district court erred by failing to adequately advise Celestine that if she wanted to testify, no one could prevent her from doing so. Because Celestine did not testify at trial, the dissent concluded that the error was not harmless.

II. STANDARD OF REVIEW

The validity of a defendant’s waiver in a criminal case of the right to testify is a question of constitutional law reviewed by this court under the right/wrong standard. See State v. Gomez–Lobato, 130 Hawai‘i 465, 468–69, 312 P.3d 897, 900–01 (2013).

III. DISCUSSION

Hawai‘i law has historically protected both the right to testify and the right not to testify. State v. Monteil, 134 Hawai‘i 361, 369, 341 P.3d 567, 575 (2014). The right to testify is guaranteed by the Fifth and Sixth Amendments to the United States Constitution; the Hawai‘i Constitution’s parallel guarantees under article I, sections 5, 10, and 14; and HRS § 801–2. State v. Pomroy, 132 Hawai‘i 85, 91, 319 P.3d 1093, 1099 (2014). The right not to testify is guaranteed by the United States Constitution’s Fifth Amendment guarantee against compelled testimony and the Hawai‘i Constitution’s parallel guarantee under article I, section 10. Monteil, 134 Hawai‘i at 369, 341 P.3d at 575.

To protect the fundamental right to testify, this court in Tachibana v. State established the requirement that when a defendant in a criminal case indicates an intention

415 P.3d 912

not to testify, the trial court must advise the defendant of the right to testify and must obtain an on-the-record waiver of this right. 79 Hawai‘i 226, 236, 900 P.2d 1293, 1303 (1995) (footnotes omitted). An on-the-record waiver assures that the defendant is "aware of [the] right to testify and that [the defendant] knowingly and voluntarily waive[s] that right." Id. at 234–37, 900 P.2d at 1301–04. The Tachibana court also determined that "the ideal time to conduct the colloquy is immediately prior to the close of the defendant’s case."11 Id. at 237, 900 P.2d at 1304.

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. Id. at 236 n.7, 900 P.2d at 1303 n.7. 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.

Id. (alterations in original) (citation omitted).

The second component of the Tachibana colloquy involves the court engaging in a true "colloquy" with the defendant. State v. Han, 130 Hawai‘i 83, 90–91, 306 P.3d 128, 135–36 (2013). 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 90, 306 P.3d at 135 (quoting Black’s Law Dictionary 300 (9th ed. 2009) ).

The verbal exchange is to ensure that the information conveyed by the judge has been understood by the defendant and that the defendant’s decision not to testify has been made with an understanding of the defendant’s rights. Id. at 90–91, 306 P.3d at 135–36 ("[T]he transcript does not indicate that a true ‘colloquy’ took place. Instead, the court simply advised Petitioner of his rights, without any ‘discussion,’ ‘exchange’ or...

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21 practice notes
  • State v. Chang, SCWC-17-0000674
    • United States
    • Hawaii Supreme Court
    • June 28, 2019
    ...made, this court looks 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). Under the totality of the circumstances here, it is clear that the district court erred in conducting its p......
  • State v. Abel, DA 19-0455
    • United States
    • Montana United States State Supreme Court of Montana
    • November 9, 2021
    ...generally accepted federal rule that we adopted in Hamm . See Tachibana v. State , 900 P.2d 1293 (Hawai'i 1995), and State v. Celestine , 415 P.3d 907 (Hawai'i 2018).¶9 Aside from that critical point of law, the record reflects that Abel was duly arraigned on August 2, 2018, and at that tim......
  • State v. Abel, DA 19-0455
    • United States
    • November 9, 2021
    ...the generally accepted federal rule that we adopted in Hamm. See Tachibana v. State, 900 P.2d 1293 (Haw. 1995), and State v. Celestine, 415 P.3d 907 (Haw. 2018). ¶9 Aside from that critical point of law, the record reflects that Abel was duly arraigned on August 2, 2018, and at that time si......
  • State v. Torres, SCWC-16-0000673
    • United States
    • Hawaii Supreme Court
    • April 10, 2019
    ...rights in a criminal case is a question of law under the state and federal constitutions. See State v. Celestine, 142 Hawai‘i 165, 169, 415 P.3d 907, 911 (2018) ; State v. Sprattling, 99 Hawai‘i 312, 316, 55 P.3d 276, 280 (2002). "We answer questions of constitutional law by exercising our ......
  • Request a trial to view additional results
21 cases
  • State v. Chang, SCWC-17-0000674
    • United States
    • Hawaii Supreme Court
    • June 28, 2019
    ...made, this court looks 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). Under the totality of the circumstances here, it is clear that the district court erred in conducting its p......
  • State v. Abel, DA 19-0455
    • United States
    • Montana United States State Supreme Court of Montana
    • November 9, 2021
    ...generally accepted federal rule that we adopted in Hamm . See Tachibana v. State , 900 P.2d 1293 (Hawai'i 1995), and State v. Celestine , 415 P.3d 907 (Hawai'i 2018).¶9 Aside from that critical point of law, the record reflects that Abel was duly arraigned on August 2, 2018, and at that tim......
  • State v. Abel, DA 19-0455
    • United States
    • November 9, 2021
    ...the generally accepted federal rule that we adopted in Hamm. See Tachibana v. State, 900 P.2d 1293 (Haw. 1995), and State v. Celestine, 415 P.3d 907 (Haw. 2018). ¶9 Aside from that critical point of law, the record reflects that Abel was duly arraigned on August 2, 2018, and at that time si......
  • State v. Torres, SCWC-16-0000673
    • United States
    • Hawaii Supreme Court
    • April 10, 2019
    ...rights in a criminal case is a question of law under the state and federal constitutions. See State v. Celestine, 142 Hawai‘i 165, 169, 415 P.3d 907, 911 (2018) ; State v. Sprattling, 99 Hawai‘i 312, 316, 55 P.3d 276, 280 (2002). "We answer questions of constitutional law by exercising our ......
  • Request a trial to view additional results

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