State v. Celestine, SCWC-14-0000335
| Decision Date | 12 April 2018 |
| Docket Number | SCWC-14-0000335 |
| Citation | 415 P.3d 907 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Ritalynn Moss CELESTINE, Petitioner/Defendant–Appellant. |
| Court | Hawaii Supreme Court |
James S. Tabe for petitioner
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.
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.
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:
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:
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).
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.
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).
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 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 ( ); Pomroy, 132 Hawai‘i at 93, 319 P.3d at 1101 ().
To accomplish the purposes of a true colloquy, we have suggested that the trial court engage in a verbal exchange with the defendant at least twice during the colloquy in order to ascertain the defendant’s "understanding of significant propositions in the advisement." Han, 130 Hawai‘i at 90, 306 P.3d at 135. The first time is after the court informs the defendant of the right to testify and of the right not to testify and the protections associated with these rights. Id. The purpose of this exchange is for the court to ascertain the defendant’s understanding of these important principles.
The second time we suggested a verbal exchange should occur is after the court indicates to the...
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