State v. Neves, CAAP-20-0000045

CourtCourt of Appeals of Hawai'i
Parties STATE of Hawai‘i, Plaintiff-Appellee, v. Ethan G.K. NEVES, Defendant-Appellant
Docket NumberCAAP-20-0000045
Decision Date09 May 2022

151 Hawai‘i 132
508 P.3d 1218 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,
v.
Ethan G.K. NEVES, Defendant-Appellant

NO. CAAP-20-0000045

Intermediate Court of Appeals of Hawai‘i.

May 9, 2022


On the briefs:

Samuel P. King, Jr., For Defendant-Appellant

Loren J. Thomas, Deputy Prosecuting Attorney, for Plaintiff-Appellee

(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Ethan G.K. Neves (Neves ) appeals from the Judgment filed December 30, 2019 (Judgment ), in the District Court of the First Circuit (District Court )1 convicting Neves of driving with a revoked, suspended or otherwise restricted motor vehicle license pursuant to Hawaii Revised Statutes (HRS) § 291E-62(a)(1), (2) and (c)(1).2

On appeal, Neves raises four points of error: (1) the District Court failed to engage in a sufficient Tachibana colloquy with Neves; (2) the Tachibana colloquy error was not harmless beyond a reasonable doubt; (3) the District Court improperly admitted into evidence Plaintiff-Appellee State of Hawai‘i's (State ) Exhibit 7 - the Notice of Administrative Revocation (NOAR ); and (4) there was insufficient evidence to establish Neves' guilt beyond a reasonable doubt.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issued raised by the parties, we affirm.

Points of error (1) and (2): During a bench trial, the District Court heard from two witnesses, considered seven exhibits, and conducted the following colloquy under Tachibana v. State, 79 Hawai‘i 226, 237, 900 P.2d 1293, 1304 (1995) :

THE COURT: Okay. You can remain seated, Mr. Neves -- well, actually, no. You do have to rise, Mr. Neves. I have to go through the rights to testify again.

So you understand what your lawyer said, defense rests?

THE DEFENDANT: Yes.

THE COURT: And just to be safe, in your words, what does that mean?

THE DEFENDANT: That we are done arguing.

THE COURT: Okay. It also means that you will not have the opportunity to testify and tell your side of the story. You understand that?

THE DEFENDANT: Yes.

THE COURT: And if you want to tell your side of the story under oath, you can do it even if your lawyer thinks you shouldn't. You understand?

THE DEFENDANT: Yes.

THE COURT: It does mean the prosecutor will get to ask you questions, too, however. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: But if you want to remain silent, you also have that right. You understand?

THE DEFENDANT: Yes.

THE COURT: And if you choose to not testify, no one can force you to testify. You understand?

THE DEFENDANT: Yes.

THE COURT: And your silence will not be used against you and cannot be used against you if you choose not to testify. You understand?

THE DEFENDANT: Yes.

THE COURT: You have any questions for me about these rights to testify or not testify?

THE DEFENDANT: I do not.

THE COURT: Then what is your choice?

THE DEFENDANT: Not testify.

THE COURT: Thank you. You can have a seat.

And the court does find defendant's knowingly, voluntarily, intelligently waiving his right to testify and exercising his right to remain silent in this matter.

Proceed to closing. State.

"In determining whether a waiver of the right to testify was voluntarily and intelligently 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).

A Tachibana colloquy requires the following:

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. 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
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