State v. Eduwensuyi, SCWC-16-0000558
| Decision Date | 18 January 2018 |
| Docket Number | SCWC-16-0000558 |
| Citation | 409 P.3d 732 |
| Parties | STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Benjamin EDUWENSUYI, Petitioner/Defendant-Appellant. |
| Court | Hawaii Supreme Court |
James S. Tabe for petitioner.
Loren J. Thomas, Honolulu, for respondent.
The appeal in this case arises from a challenge by Benjamin Eduwensuyi to the validity of his waiver of the right to testify at trial and the propriety of the conviction that ensued. We hold that the record does not support a conclusion that Eduwensuyi'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 1, 2016, Eduwensuyi was charged by complaint in the Honolulu 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).1 A bench trial took place on July 11, 2016.2 Prior to the presentation of evidence, the district court advised Eduwensuyi as follows:
The State presented the testimony of one witness, Officer Jessie Takushi of the Honolulu Police Department. Officer Takushi testified that at approximately 4:37 a.m. on January 17, 2016, he stopped a vehicle occupied by Eduwensuyi for multiple traffic infractions, including crossing a double solid yellow line.
According to Officer Takushi, as he was approaching Eduwensuyi's vehicle, he saw Eduwensuyi climbing from the driver's seat into the passenger's seat. When Officer Takushi reached the vehicle, he noticed that there was a different male in the driver's seat and that Eduwensuyi was "kind of laying down on the passenger's side with his feet still in the driver's seat area."
Officer Takushi testified that he asked Eduwensuyi for his driver's license, registration, and insurance, which Eduwensuyi provided. Officer Takushi stated that Eduwensuyi's eyes were red and watery, his speech was slurred, and an odor of alcohol emanated from inside the vehicle. At Officer Takushi's request, Eduwensuyi agreed to participate in the standardized field sobriety test. According to Officer Takushi, Eduwensuyi was unsteady on his feet, he swayed while standing, and he dragged his feet when walking. Officer Takushi acknowledged that his report did not mention that Eduwensuyi was swaying while standing.
Following Officer Takushi's testimony, the State rested. The defense then informed the district court that it would not be presenting evidence, and the following exchange occurred:
Eduwensuyi then moved for judgment of acquittal, which motion the court denied.
The district court found Eduwensuyi guilty of operating a vehicle under the influence of an intoxicant in violation of HRS § 291E-61(a)(1) and imposed sentence.3 Eduwensuyi appealed to the Intermediate Court of Appeals (ICA) from the district court's judgment entered on July 11, 2016.
In his opening brief, Eduwensuyi argued that under Tachibana v. State, 79 Hawai'i 226, 236, 900 P.2d 1293, 1303 (1995), the district court was required to engage him in a colloquy prior to accepting his waiver of the right to testify to ensure he was knowingly, voluntarily, and intelligently relinquishing his rights. Eduwensuyi contended that the court's Tachibana colloquy was incomplete and defective because the court did not advise him that he had a right not to testify and that if he wanted to testify no one could prevent him from doing so. Because the colloquy was defective, Eduwensuyi maintained, any waiver by him was not knowing, intelligent, and voluntary.
In addition, Eduwensuyi contended that the court failed to engage in a true exchange during the colloquy. Eduwensuyi argued that, instead of administering the colloquy in segments and asking Eduwensuyi whether he understood each advisement, the district court simply recited a litany of rights. (Citing State v. Christian, 88 Hawai'i 407, 967 P.2d 239 (1998).) Eduwensuyi added that there was nothing in the record to establish that he understood each of his rights or that the court had an objective basis for finding that his waiver of the right to testify was validly made.
Eduwensuyi further submitted that the district court's violation of the requirements of Tachibana was not harmless beyond a reasonable doubt because the record offered no hint as to whether his testimony, had he given it, could have established reasonable doubt that he operated a vehicle under the influence of an intoxicant. Eduwensuyi concluded that, because it is inherently uncertain what he would have testified to at trial, there is a reasonable possibility that the violation of his constitutional right to testify contributed to his conviction.
In its answering brief, the State first addressed Eduwensuyi's contention that the district court failed to engage in a true exchange during the Tachibana colloquy. The State noted that the court asked Eduwensuyi at the end of both the pretrial advisement and the ultimate colloquy whether he understood his rights and, in both instances, Eduwensuyi responded in the affirmative. The State added that Eduwensuyi was also permitted to consult with defense counsel regarding the waiver. Hence, the State argued that the court's exchange with Eduwensuyi was sufficient to enable the court to ascertain Eduwensuyi's understanding of the court's advisements.
Turning to the contents of the pretrial advisement and the ultimate colloquy, the State acknowledged that the district court's pretrial advisement was deficient in that the court did not advise Eduwensuyi that his decision not to testify could not be used against him by the factfinder. The State submitted that, because the pretrial advisement is reviewed for actual prejudice, the district court could have rectified the error by ensuring that Eduwensuyi was fully informed of his rights in the ultimate colloquy. The State conceded, however, that "the ultimate colloquy was also deficient in some respects" because the district court failed to inform Eduwensuyi of two of the five basic requirements of Tachibana—namely, that if he wanted to testify, no one could prevent him from doing so and that he had the right not to testify.
The State further acknowledged that the district court's violation of Tachibana"may not be harmless beyond a reasonable doubt given the circumstances in this case" and that "it is not uncommon for convictions to be vacated as a result of deficient Tachibana colloquies." The State indicated that the situation was unfortunate given that the evidence showed that Eduwensuyi operated a vehicle under the influence of an intoxicant and that the district court failed "to follow the simple mandates" of this court's precedent. The State concluded that it "believes the right to testify colloquy was deficient and thus a new trial is warranted."
On June 9, 2017, the ICA entered a summary disposition order (SDO).4 In its SDO, the ICA did not reference that the State had acknowledged in its answering brief that both the district court's pretrial advisement and the ultimate colloquy were deficient because the district court failed to advise Eduwensuyi of basic information required by Tachibana. The ICA also did not mention in its SDO that the State had conceded error in the conviction in this case.
The ICA determined that, although the district court did not advise Eduwensuyi in the ultimate colloquy that no one could prevent him from testifying if he wanted to do so, the court adequately covered this advisement in the pretrial colloquy by advising him that he had a right to testify or not to testify and that it was ultimately his decision whether to testify. The ICA further found that given the short time between the pretrial advisement and the ultimate colloquy,5 Eduwensuyi's acknowledgment that he understood his rights, and Eduwensuyi's opportunity to further consult with his counsel prior to waiving the right to testify, the district court satisfied the requirements of Tachi...
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...discussion between counsel and a defendant to establish a valid waiver of a constitutional right." State v. Eduwensuyi, 141 Hawai'i 328, 336, 409 P.3d 732, 740 (2018).We have even declined to find a knowing, intelligent, and voluntary waiver of fundamental rights when the defendant personal......
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...concession of error is not binding on this court, we conclude that it is well-founded in this case. See State v. Eduwensuyi, 141 Hawai'i 328, ––––, 409 P.3d 732, 737 (January 18, 2018) (citing Territory v.Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945) (holding that a prosecutor's concession of ......
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