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 DEFENDANT: I choose not to testify.
THE COURT: Is anyone stopping or preventing you from testifying?
THE DEFENDANT: No, Judge.
THE COURT: Thank you.
On appeal, Falevai argues:
What is missing from that colloquy are any questions about what medication Falevai was on at that moment and how it affects him. He is a schizophrenic who was on psychiatric medication at that time. No question was ever asked as to whether he had any alcohol in the previous 24 hours nor about his level of education or understanding of English. All of Falevai's answers were short, often just one word. This is not a true colloquy.
The validity of a waiver of the fundamental right to testify is reviewed under the totality of the facts and circumstances of the particular case. Martin, 146 Hawai‘i at 379, 463 P.3d at 1036. In this context, the presence of a "salient fact" in the record can create the need for a more extensive colloquy to ensure the defendant's understanding. See Han, 130 Hawai‘i at 92, 306 P.3d at 137 ; see also State v. Ichimura, SCWC-13-0000396, 2017 WL 2590858, at *6 (Haw. June 15, 2017) ("[T]his court has stated that the presence of a ‘salient fact’ concerning the defendant's ability to understand the colloquy ‘requires that a court effectively engage the defendant in a dialogue that will effectuate the rationale behind the colloquy and the on-the-record waiver requirements as set forth in Tachibana.’ " (original brackets omitted) (quoting Han, 130 Hawai‘i at 92, 306 P.3d at 137 )). Salient facts include a language barrier or mental illness. See Martin, 146 Hawai‘i at 379, 463 P.3d at 1036 ; Han, 130 Hawai‘i at 92, 306 P.3d at 137 ; see also Ichimura, 2017 WL 2590858, at *6 (citing United States v. Duarte–Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997), for the proposition that "a ‘salient fact,’ like a defendant's language barrier or mental illness, that is known to the court, ‘puts the court on notice that the defendant's waiver might be less than knowing and intelligent,’ and serves as an additional reason for the court to engage in a colloquy with the defendant ‘to carry out its "serious and weighty responsibility" of ensuring that a defendant's jury waiver is voluntary, knowing, and intelligent’ " (brackets omitted)).
In Martin, the supreme court applied these principles in determining whether the trial court's colloquy regarding the defendant's right to testify was deficient. 146 Hawai‘i at 378, 463 P.3d at 1035. The defendant argued that the colloquy was not a "true colloquy" because the trial court recited a "litany of rights" without obtaining a response as to the defendant's understanding of the fundamental principles pertaining to his rights,...
