State v. Falevai, S. CAAP-18-0000666 & CAAP-18-0000943

CourtCourt of Appeals of Hawai'i
Citation151 Hawai‘i 132,508 P.3d 1218 (Table)
Docket NumberS. CAAP-18-0000666 & CAAP-18-0000943
Parties STATE of Hawai‘i, Plaintiff-Appellee, v. Isaac FALEVAI, Defendant-Appellant
Decision Date10 May 2022

151 Hawai‘i 132
508 P.3d 1218 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,
v.
Isaac FALEVAI, Defendant-Appellant

NOS. CAAP-18-0000666 & CAAP-18-0000943

Intermediate Court of Appeals of Hawai‘i.

May 10, 2022


On the briefs:

Earle A. Partington, for Defendant-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee.

(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Isaac Falevai (Falevai ) appeals from the July 24, 2018 Judgment and Notice of Entry of Judgment (Judgment ) and the November 8, 2018 Amended Judgment and Notice of Entry of Judgment (Amended Judgment ), entered in the District Court of the First Circuit, Kâne‘ohe Division (District Court ).1

Falevai was charged with Sexual Assault in the Fourth Degree, in violation of Hawaii Revised Statutes (HRS ) § 707-733(1)(a).2 Following a bench trial, the District Court concluded that Falevai knowingly touched the complaining witness's (CW ) buttocks without her consent, while on a bus in the early hours of the morning. However, based on expert testimony that Falevai, at the time of the alleged offense, was suffering from a schizophrenia disorder and was taking prescribed medications that slowed his reactions and ability to think, the District Court acquitted Falevai by reason of mental disease, disorder, or defect excluding penal responsibility, pursuant to HRS §§ 704-400 and 704-402.3

On appeal, Falevai contends that the District Court erred: (1) in failing to acquit Falevai "outright" due to insufficient evidence, where there was no evidence of "sexual overtones" in Falevai's conduct; (2) in failing to read Falevai's memorandum of law on sexual assault in the fourth degree and instructing the clerk not to file it; (3) in acquitting Falevai by reason of mental disease or defect, thereby subjecting him to required registration as a "covered offender" under HRS §§ 846E-1 and - 2,4 where the evidence established that Falevai was not a "sex offender" and thus not a "covered offender" under HRS § 846E-1 ; and (4) in failing to conduct a proper Tachibana 5 colloquy with Falevai before he decided not to testify.

Falevai has also filed a motion for retention of oral argument, which is hereby DENIED.

After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Falevai's contentions as follows.

(1) We find Falevai's fourth contention – that the District Court failed to conduct a proper Tachibana colloquy – dispositive.

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, 378-79, 463 P.3d 1022, 1035-36 (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 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)).

....

A defendant's right to testify is violated when the colloquy does not establish "an objective basis for finding that the defendant knowingly, intelligently, and voluntarily gave up" their right to testify. Han, 130 Hawai‘i at 91, 306 P.3d at 136.

146 Hawai‘i at 378-79, 463 P.3d at 1035-36 (original brackets and footnotes omitted).

Here, Falevai challenges the colloquy that occurred immediately prior to the close of his case. At that time, the following exchange occurred:

THE COURT: ... Before the defense rests, let me briefly address your client.

[DEFENSE COUNSEL]: Yes.

THE COURT: Good afternoon, Mr. Falevai.

THE DEFENDANT: Good afternoon, Judge.

THE COURT: You understand that you have the right to testify in this case?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You understand that if you want to testify, no one can stop you from testifying including your own attorney?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand that if you testify, the State may cross-examine you?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Have you had a chance to speak with your attorney about your right to testify?

THE DEFENDANT: Yes, I have.

THE COURT: Was he able to answer any questions you might have had?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions for me about your right to testify?

THE DEFENDANT: No, Your Honor.

THE COURT: Do you know that you have the right not to testify in this case?

THE DEFENDANT: Yes.

THE COURT: Do you understand that if you do not testify, the court will not draw any negative inferences from that decision?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand that if you do not testify, the State may not cross-examine you?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand that if you do not want to testify, no one can force you to testify?

THE DEFENDANT: Yes.

THE COURT: Have you had a chance to speak with your attorney about your right not to testify?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Was he able to answer any questions you might have had?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions for me about your right not to testify?

THE DEFENDANT: No, Your Honor.

THE COURT: Have you considered your right to testify as well as your right not to testify?

THE DEFENDANT: Yes.

THE COURT: Are you prepared to make a decision?

THE DEFENDANT: Yes, I am.

THE COURT: What is your decision?

THE
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