State v. Vasconcellos
| Docket Number | CAAP-21-0000078 |
| Decision Date | 22 December 2023 |
| Parties | STATE OF HAWAI'I, Plaintiff-Appellee, v. MICAH S.K. VASCONCELLOS, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
1
STATE OF HAWAI'I, Plaintiff-Appellee,
v.
MICAH S.K. VASCONCELLOS, Defendant-Appellant
No. CAAP-21-0000078
Intermediate Court of Appeals of Hawaii
December 22, 2023
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT KANE'OHE DIVISION (CASE NO. 1DTA-18-03320)
Alen M. Kaneshiro for Defendant-Appellant.
Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Micah S.K. Vasconcellos (Vasconcellos) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment, entered on December 22, 2020, in the District Court of the First Circuit, Kane'ohe Division (District Court).[1] Following a bench trial, Vasconcellos was convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2018),[2] and Operating a Vehicle After
License and Privilege Have Been Suspended or Revoked for Operating a Vehicle Under the Influence of an Intoxicant (OVLPSR-OVUII), in violation of HRS § 291E-62(a)(1) and (a)(2) (Supp. 2018).[3]
On appeal, Vasconcellos contends that: (1) the "case must be dismissed pursuant to State v. Thompson[, 150 Hawai'i 262, 500 P.3d 447 (2021),] where the [C]omplaint did not meet the requirements of HRS § 805-1" and Vasconcellos was arraigned on the "fatally defective Complaint";[4] (2) the District Court conducted a defective colloquy under Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995); (3) the District Court erred in "failing to suppress Vasconcellos's responses to the [medical rule-out (MRO)] questions and all subsequent evidence and statements as the 'fruit of the poisonous tree'"; and (4) the District Court erred "in allowing [Officer Joseph] Amasiu's [(Officer Amasiu)] testimony on the [standardized field sobriety test (SFST)] where he had no present recollection of the test."
Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Vasconcellos's points of error as follows.
(1) On October 12, 2018, Vasconcellos was charged by Complaint with OVUII and OVLPSR-OVUII. The Complaint was signed by a deputy prosecuting attorney, but was not subscribed under oath by a complainant or accompanied by a declaration in lieu of affidavit. On December 10, 2021, the Hawai'i Supreme Court decided Thompson, which held that a penal summons or arrest warrant cannot be issued on the basis of a complaint that is not compliant with HRS § 805-1.[5] 150 Hawai'i at 267-69, 500 P.3d at 452-54; see State v. Mortensen-Young, 152 Hawai'i 385, 393-95, 526 P.3d 362, 370-72 (2023) (construing Thompson). Based on Thompson, Vasconcellos argues that the Complaint was "fatally defective" because it did not meet the requirements of HRS § 805-1. Vasconcellos further argues that his arraignment "was effectively a nullity" because it was based on the Complaint. Vasconcellos concedes that he did not raise these issues in the District Court.
We assume without deciding that Vasconcellos did not waive these issues by failing to raise them below. The Hawai'i Supreme Court recently held in Mortensen-Young that HRS § 805-1 (2014) applies only to criminal complaints used to obtain a penal summons or arrest warrant. 152 Hawai'i at 393-95, 526 P.3d at 370-72.
In other cases, such as the OVUII prosecutions at issue in Mortensen-Young, HRPP Rule 7 provides the proper framework to analyze the sufficiency of complaints. In Mortensen-Young, the supreme court held that the trial court improperly dismissed the complaints against the appellees, reasoning that the charging instruments had complied with HRPP Rule 7(d), and were thus sufficient to initiate prosecutions for OVUII. Id. at 399, 526 P.3d at 376.
Here, as in Mortensen-Young, HRS § 805-1 is inapplicable because the Complaint was not used to obtain a penal summons or arrest warrant; Vasconcellos was already arrested and had posted bail when the State filed the Complaint. See id. at 395, 526 P.3d at 372. The Complaint set forth a plain and concise statement of the essential facts, was signed by the prosecutor, and referenced the statutes that Vasconcellos allegedly violated, as required by HRPP Rule 7(d). Therefore, HRS § 805-1 was inapplicable and the Complaint was sufficient to initiate the subject prosecution. Further, because the Complaint was not "fatally defective," Vasconcellos's arraignment based on the Complaint was not a nullity. Vasconcellos's first point of error is without merit.
(2) Vasconcellos contends that the District Court's Tachibana colloquy was defective in several respects, and as a result, it cannot be concluded that Vasconcellos waived his right to testify knowingly, intelligently, and voluntarily.[6] Because we conclude that the District Court's Tachibana colloquy failed to maintain an even balance between Vasconcellos's right to testify and his right not to testify, we do not reach his remaining contentions about the colloquy.
After the State rested, defense counsel indicated his understanding that Vasconcellos did not wish to testify, and the District Court engaged in the following colloquy with Vasconcellos:
THE COURT: All right. Have you ever testified before in any court proceeding?
[VASCONCELLOS]: No.
THE COURT: Okay. You understand that you have a right to testify and a right not to testify? You understand that?
[VASCONCELLOS]: Yes.
THE COURT: You understand that . . . you have a constitutional right not to make any incriminating statements? You understand that?
[VASCONCELLOS]: Yes.
THE COURT: You understand that you have the constitutional right to remain silent and not testify at this trial?
[VASCONCELLOS]: Yes.
THE COURT: You understand if you do not testify, the Court cannot hold -- hold it against you that you're not testifying? You understand that?
[VASCONCELLOS]: Yes, sir.
THE COURT: You understand that you also have a right to testify, but anything you say can be held against you? You understand that?
[VASCONCELLOS]: Yes.
THE COURT: All right. You understand that if you do testify, you'll be subject to cross-examination, where the prosecutor will be permitted to ask you questions and you will be required to answer those questions? You understand that?
[VASCONCELLOS]: Yes.
THE COURT: Although you should confer with your attorney whether to testify or not, you understand that the final decision is entirely up to you?
[VASCONCELLOS]: Yes, sir.
THE COURT: No one can prevent you from testifying if that is what you wish because that is your right to testify. You understand that?
[VASCONCELLOS]: Yes, sir.
THE COURT: Do you have any questions about what I've explained to you?
[VASCONCELLOS]: No, sir.
THE COURT: Understanding all that I've explained to you, do you wish to testify today?
[VASCONCELLOS]: I'm good.
THE COURT: All right. Court finds that Mr. Vasconcellos has intelligently, knowingly, and voluntarily waived his right to testify.
The supreme court has repeatedly emphasized that "the [trial] court's advisory to the defendant must maintain an 'even balance' between a defendant's right to testify and the right not to testify." State v. Monteil, 134 Hawai'i 361, 370, 341 P.3d 567, 576 (2014) (citing State v. Lewis, 94 Hawai'i 292, 295, 12 P.3d 1233, 1236 (2000)). This balance is intended to ensure that the trial court's advisement does not influence the defendant's decision one way or the other. See Tachibana, 79 Hawai'i at 236 n.7, 900 P.2d at 1303 n.7.
Here, the District Court failed to maintain an even balance between its advisements, adding elements that potentially cast the right to testify in a negative light and risked influencing Vasconcellos's decision whether or not to testify. For example, the court asked Vasconcellos, "You understand that . . . you have a constitutional right not to make any incriminating statements?" and "You understand that you also have a right to testify, but anything you say can be held against you? (Emphases added.) See State v. Watanabe, No. CAAP-20-0000155, 2021 WL 2624643, at *3 (App. June 25, 2021) (SDO) (concluding that "[w]ithout more, the [trial] court's questions - 'And do you understand that you have the constitutional right not to make any incriminating statements?' and 'Do you understand that if you elect to testify, anything you say can and may be used against you?['] - did not maintain an even balance between Watanabe's right to testify and the right not to testify." (quoting Monteil, 134 Hawai'i at 370, 341 P.3d at 576) (brackets and some internal quotation marks omitted)). These questions advised Vasconcellos of his rights in a manner that implied he could or would be incriminating himself by testifying. See id. On this record, we cannot conclude that Vasconcellos's waiver of his right to testify was knowingly, intelligently and voluntarily made.
As Vasconcellos did not exercise his right to testify, we cannot conclude that the District Court's error was harmless beyond a reasonable doubt because it is not knowable whether Vasconcellos's testimony, had he given it, could have established reasonable doubt that he committed the charged offenses. See State v. Celestine, 142 Hawai'i 165, 173, 415 P.3d 907, 915 (2018). We therefore vacate Vasconcellos's OVUII and OVLPSR-OVUII convictions.
(3) Prior to trial, Vasconcellos filed the Motion to Suppress, by which he sought an order precluding the State from introducing any statements made by Vasconcellos to Honolulu Police Department (HPD) officers and any evidence gained by the HPD after Vasconcellos was placed under arrest....
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