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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
20-JUN-2019
08:39 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
MARCIA D. WILSON,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2DTA-14-00949)
JUNE 20, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
During a trial for operating a vehicle under the
influence of an intoxicant, the defense counsel and the State
stipulated to the arresting police officer’s training and
qualifications to conduct standardized field sobriety tests.
This appeal arises from a challenge by the defendant to the lack
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of a colloquy before the trial court accepted the stipulation.
Although we hold that the Intermediate Court of Appeals (ICA)
did not ultimately err in concluding that a colloquy was not
required in the circumstances of this case, we provide guidance
as to the proper allocation of authority between a defendant and
defense counsel in light of statements by the ICA regarding
defense counsel’s authority to stipulate to an evidentiary
matter based on “trial tactics and procedure.” We further hold
that the ICA erred in its alternative holding, which employed a
novel test for evaluating prejudice resulting from a trial
court’s acceptance of a stipulation without a colloquy.
I. FACTS AND PROCEDURAL HISTORY
On September 2, 2014, the State filed a complaint in
the District Court of the Second Circuit (district court)
charging Marcia Wilson with operating a vehicle under the
influence of an intoxicant (OVUII) in violation of Hawaii
Revised Statutes (HRS) §§ 291E-61(a)(1)1 and 291E-61(b),2 as well
1
HRS § 291E-61(a)(1) (2007) provides in full:
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount
sufficient to impair the person’s normal mental
faculties or ability to care for the person and guard
against casualty[.]
2
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as refusal to submit to a breath, blood, or urine test in
violation of HRS §§ 291E-153 and 291E-68.4 A bench trial began
on May 15, 2015, with the proceedings thereafter continued to
July 15, 2015.5
The only witness that the State called to testify was
Officer Jun Hattori. Prior to Officer Hattori taking the stand,
the following exchange occurred:
(. . . continued)
2
HRS § 291E-61(b) (2007 & Supp. 2014) establishes the penalties
for committing the offense of OVUII and provides for enhanced penalties for
repeat OVUII offenders.
3
At the time of the incident giving rise to this case, HRS § 291E-
15 (2007 & Supp. 2014) provided in full as follows:
If a person under arrest refuses to submit to a breath,
blood, or urine test, none shall be given, except as
provided in section 291E-21. Upon the law enforcement
officer’s determination that the person under arrest has
refused to submit to a breath, blood, or urine test, if
applicable, then a law enforcement officer shall:
(1) Inform the person under arrest of the sanctions
under section 291E-41, 291E-65, or 291E-68; and
(2) Ask the person if the person still refuses to
submit to a breath, blood, or urine test, thereby
subjecting the person to the procedures and sanctions
under part III or section 291E-65, as applicable;
provided that if the law enforcement officer fails to
comply with paragraphs (1) and (2), the person shall not be
subject to the refusal sanctions under part III or IV.
4
At the time of Wilson’s offense, HRS § 291E-68 (Supp. 2014)
provided in full: “Except as provided in section 291E-65, refusal to submit
to a breath, blood, or urine test as required by part II is a petty
misdemeanor.” This provision was subsequently repealed in 2016. See 2016
Haw. Sess. Laws Act 17, § 2 at 21.
5
The Honorable Kelsey T. Kawano presided.
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[THE PROSECUTOR]: So, your Honor, after discussing this
case with the Public Defender, at this time I believe we’re
going to stipulate to Officer Hattori’s training, that he
followed the standards and guidelines and requirements of
the [National Highway Traffic Safety Administration
(NHTSA)] Manual. It was supervised by a NHTSA Certified
Instructor.
Officer Hattori’s qualified and certified to conduct
the standard--standardized field sobriety tests and that he
received specialized training in administering and grading
all of the standard field sobriety tests.
THE COURT: All right.
[THE PROSECUTOR]: And just for the record, your Honor, when
I call Officer Hattori, he’ll briefly tell the Court what
training he has received.
THE COURT: All right.
The court did not engage in a colloquy with Wilson before
accepting this stipulation.
Officer Hattori testified that on August 8, 2014,
around 11:15 p.m., he initiated a traffic stop of a vehicle
driven by Wilson. The officer stated that Wilson’s speech was
slurred and mumbled and her eyes were red. Officer Hattori
related that he asked Wilson if she would participate in a
standardized field sobriety test (SFST), and she agreed.
The officer testified that he then administered the
three tests that comprise the SFST: the horizontal gaze
nystagmus (HGN) test, the walk-and-turn test, and the one-legged
stand test. Officer Hattori testified that he observed a total
of thirteen “validated clues” during the SFST, which he said
demonstrated that Wilson was impaired. These included six clues
on the HGN test, four on the walk-and-turn test, and three on
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the one-legged stand test. Based on her performance, Officer
Hattori concluded that Wilson was “impaired to the point where
it was unsafe for her to be operating a vehicle,” and he
therefore arrested Wilson for OVUII.
Officer Hattori testified that he transported Wilson
to the Kīhei Police Station after she was arrested, where he
informed her of the implied consent law and gave her a form on
which to indicate whether she would submit to a breath or blood
alcohol test.6 Wilson declined to submit to any test and marked
the box on the form indicating that she had refused.7
Following Officer Hattori’s testimony, the State
rested its case-in-chief. The defense called Joelle Lindly,
Wilson’s coworker, who was with Wilson on the night that she was
arrested. Lindly testified that after their shifts ended, she
6
The officer read Wilson the following from the implied consent
form:
1. Any person who operates a vehicle upon a public way,
street, road or highway or on or in the waters of the State
shall be deemed to have given consent to a test or tests
for the purpose of determining alcohol concentration or
drug content of the person’s breath, blood, or urine as
applicable.
2. You may refuse to submit to a breath or blood test, or
both, for the purpose of determining alcohol concentration
and/or blood or urine test, or both, for the purpose of
determining drug content.
7
Wilson initially marked the box indicating that she would submit
to a breath alcohol test, but she then changed her mind and initialed and
crossed out her first mark.
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saw Wilson have one glass of wine at the bar and then leave to
go home.
At the close of evidence, the court found Wilson
guilty of both charges. On the OVUII offense, the district
court sentenced Wilson to 72 hours of community service, a $250
fine, a substance abuse evaluation, and a fourteen-hour
substance abuse rehabilitation program. On the refusal charge,
Wilson was sentenced to pay $180 in fines and fees. The court
entered judgment on the same day. Wilson filed a timely notice
of appeal.
II. ICA PROCEEDINGS
On appeal, Wilson argued that the district court erred
by not engaging her in a colloquy before accepting the
stipulation as to Officer Hattori’s qualifications. Wilson
contended that the stipulation was a waiver of her
constitutional right to confrontation and that the district
court was therefore required to determine whether the waiver was
made knowingly and voluntarily.
Wilson asserted that, under our precedents, a trial
court must engage in a colloquy with the defendant when the
defendant waives a fundamental right--here, the right to
confront a witness--to ensure that the waiver is being knowingly
and voluntarily given. (Citing Tachibana v. State, 79 Hawaii
226, 900 P.2d 1293 (1995); State v. Murray, 116 Hawaii 3, 169
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P.3d 955 (2007).) Thus, she concluded that defense counsel’s
tactical decisions and trial strategy are not relevant in
applying “the underlying rule that fundamental constitutional
rights may only be waived by the defendant,” and any cases that
have suggested otherwise are no longer viable. (Citing State v.
Casey, 51 Haw. 99, 101,
451 P.2d 806, 808 (1969).)
The ICA affirmed Wilson’s OVUII conviction and held
that the trial court was not required to engage in a colloquy
with Wilson before accepting the stipulation regarding Officer
Hattori’s qualifications. State v. Wilson, 141 Hawaii 459, 467,
413 P.3d 363, 371 (App. 2018). Relying on State v. El’Ayache,
62 Haw. 646,
618 P.2d 1142 (1980), the ICA reasoned that
stipulations like the one in this case make the trial process
more efficient and avoid “time-consuming and needless
presentation of evidence on matters that are undisputed.”
Wilson, 141 Hawaii at 467, 413 P.3d at 371. If trial courts
were required to engage in a colloquy for every stipulation, the
ICA stated, then the trial process would be burdened. Id.
Additionally, the ICA asserted that if defendants were given
veto power over every stipulation, such a process would
“interfere with the role of defense counsel to exercise
appropriate judgment in trial tactics and procedure.” Id.
Next, the ICA reasoned that, under this court’s
decision in State v. Murray, a colloquy is required before a
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court accepts an evidentiary stipulation only where the
defendant stipulated to an essential element of the charged
offense. Id. (citing Murray, 116 Hawai‘i at 10-14, 169 P.3d at
962-66). The ICA explained that the stipulation regarding
Officer Hattori’s qualifications did not constitute an essential
element of OVUII, but instead it was a stipulation that is
routinely agreed to by parties to avoid unnecessary consumption
of time. Id. The ICA also appeared to conclude that, even if
the lack of colloquy was in error, Wilson failed to establish
sufficient prejudice from the mistake to warrant vacating her
convictions, stating, “Wilson makes no showing that absent the
stipulation, the State would have been unable to establish
Officer Hattori’s qualifications to administer field sobriety
tests.”8 Id.
III. STANDARD OF REVIEW
The validity of a defendant’s waiver of a
constitutional right is a question of constitutional law. State
8
The ICA also reversed Wilson’s conviction for refusal pursuant to
State v. Won, 137 Hawai‘i 330, 372 P.3d 1065 (2015). Wilson, 141 Hawaii at
466, 413 P.3d at 370. In discussing Won’s applicability after the United
States Supreme Court’s decision in Birchfield v. North Dakota,
136 S. Ct.
2160 (2016), the ICA reasoned that “[i]f the Hawaii Supreme Court adopted the
Birchfield analysis in interpreting Article I, Section 7 of the Hawaii
Constitution, it would require overturning Won[.]” Wilson, 141 Hawaii at
466, 413 P.3d at 370. However, the ICA stated that “[w]ithout additional
guidance from the Hawaii Supreme Court, we cannot say that Birchfield would
alter the Hawaii Supreme Court’s analysis in Won.” Id.
8
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v. Ui, 142 Hawaii 287, 292, 418 P.3d 628, 633 (2018). “We
answer questions of constitutional law by exercising our own
independent constitutional judgment based on the facts of the
case. Thus, we review questions of constitutional law under the
right/wrong standard.” State v. Friedman, 93 Hawaii 63, 67,
996
P.2d 268, 272 (2000) (quoting State v. Hanapi, 89 Hawaii 177,
182,
970 P.2d 485, 490 (1998)).
IV. DISCUSSION
In her application for certiorari, Wilson argues that
the ICA erred in concluding that the district court was not
required to engage in a colloquy with her before accepting the
stipulation regarding Officer Hattori’s qualifications. She
reasons that the right to confrontation is a fundamental right
that cannot be waived by a defendant absent a colloquy with the
trial court. Wilson argues that the defense counsel’s
stipulation effectively waived her ability to confront the
officer as to whether he was properly trained and qualified to
conduct the SFST, and that the ICA erred by holding that such a
waiver may be made by defense counsel on a defendant’s behalf as
a matter of trial strategy.
We thus begin by considering the role of defense
counsel in relation to a client when making tactical choices
regarding the course of litigation. We then turn to the
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colloquy requirement as it relates to evidentiary stipulations
before examining the showing of prejudice required to warrant
vacating a conviction when a trial court fails to engage a
defendant in a required colloquy.
A. The Role of Defense Counsel
In reaching its holding that the district court was
not required to engage Wilson in a colloquy prior to accepting
her stipulation, the ICA reasoned that “to give the defendant
veto power over every stipulation agreed to by his or her
counsel[] would burden the trial process and interfere with the
role of defense counsel to exercise appropriate judgment in
trial tactics and procedure.” State v. Wilson, 141 Hawai‘i 459,
467, 413 P.3d 363, 371 (App. 2018). In light of this statement,
we provide guidance as to the appropriate allocation of
authority between a defendant and defense counsel.
Any suggestion that stipulations involving tactics or
procedure are the exclusive province of defense counsel in which
a defendant plays little or no meaningful role is at odds with
both the professional rules promulgated by this court and
accepted best practices within the legal profession more
generally.
The Hawai‘i Rules of Professional Conduct (HRPC)
repeatedly stress the importance of defense counsel’s duty to
consult with the defendant regarding strategic decisions at
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trial. HRPC Rule 1.2(a) (2014) states that defense counsel
“shall abide by a client’s decisions concerning the objectives
of representation[] and . . . shall consult with the client as
to the means by which the objectives are to be pursued.”
(Emphases added.) This responsibility is reiterated by HRPC
Rule 1.4(a)(2), which states that attorneys are required to
“reasonably consult with the client about the means by which the
client’s objectives are to be accomplished.”9
The American Bar Association’s (ABA) standards for
criminal defense provide similar guidance. Under the ABA
standards, “[s]trategic and tactical decisions should be made by
defense counsel[] after consultation with the [defendant] where
feasible and appropriate.”10 ABA, Criminal Justice Standards for
9
In addition to our professional rules, the duty of defense
counsel to consult with a defendant regarding trial strategy may inhere in
the right to counsel guaranteed by Article I, section 14 of the Hawai‘i
Constitution and the Sixth Amendment of the United States Constitution. See
Frazer v. South Carolina, 430 F.3d 696, 707 (4th Cir. 2005) (reasoning that
the Sixth Amendment requires counsel to consult with a client on important
strategic decisions).
10
The commentary to the 1993 version of the standard, which
contained identical wording, indicates the “where feasible and appropriate”
language is an acknowledgement that some strategic and tactical decisions
must be made “in circumstances that do not allow extended, if any,
consultation.” ABA Standards for Criminal Justice: Prosecution Function and
Defense Function, Standard 4-5.2 Commentary, at 200, 202 (3d ed. 1993). The
included history of the provision further clarifies that the language “was
added . . . to reflect the fact that sometimes consultation is virtually
impossible, e.g., in the middle of cross-examination.” Id. Standard 4-5.2
History of Standard, at 200. Although a 2015 update of the standards has
been published, commentary accompanying the standards has yet to be released
as of the date of this opinion. See ABA, Criminal Justice Standards for the
Defense Function - Table of Contents, https://perma.cc/7TPY-ZDGU.
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the Defense Function, Standard 4-5.2(d) (4th ed. 2015) (emphases
added). Such strategic decisions include “how to pursue plea
negotiations, how to craft and respond to motions and, at
hearing or trial, what witnesses to call, whether and how to
conduct cross-examination, what jurors to accept or strike, what
motions and objections should be made, what stipulations if any
to agree to,[11] and what and how evidence should be introduced.”
Id. (emphases added). The commentary to the ABA standards notes
that some tactical decisions “can be anticipated sufficiently so
that counsel can ordinarily consult with the client concerning
them.” ABA Standards for Criminal Justice: Prosecution Function
and Defense Function, Standard 4-5.2 Commentary, at 202 (3d ed.
1993).
Consultation with the defendant serves many purposes:
first, it protects the defendant’s right to have the opportunity
to participate in the defense; second, it allows defense counsel
to hear the defendant’s views and desires regarding the best
course of action, which “are relevant considerations that must
11
Although the 2015 ABA Standards list the decision of whether to
agree to stipulations as an example of a strategic decision to be ultimately
made by defense counsel, the standards also make clear that “the decisions
ultimately to be made by a competent client, after full consultation with
defense counsel, include . . . any [] decision that has been determined in
the jurisdiction to belong to the client.” ABA, Criminal Justice Standards
for the Defense Function, Standard 4-5.2(b)(ix). As discussed infra, Section
IV.B, this court has held that some stipulations may affect a defendant’s
fundamental rights and that the final decision to enter into such a
stipulation rests with the defendant.
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be evaluated and taken into account by counsel”; third, it
“promote[s] and maintain[s] a cooperative client-counsel
relationship”; and fourth, if there is a difference in opinion
between the defendant and defense counsel, it affords the
defendant the opportunity to seek different representation.
Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1436-37 (3d
Cir. 1996). Consultation with the defendant also helps defense
counsel in the representation of the client because “[t]he
process of thinking through alternative courses of action and
explaining them to a client encourages self-scrutiny and fosters
greater self-awareness of the factors influencing the lawyer’s
judgment, thereby improving [the lawyer’s] decisionmaking.”
Mark Spiegel, Lawyering and Client Decisionmaking: Informed
Consent and the Legal Profession,
128 U. Pa. L. Rev. 41, 104
(1979). Additionally, an informational imbalance occurs when
defense counsel does not consult with the defendant. “While an
attorney’s education and experience give [the attorney] superior
knowledge of generalized technical information, ‘[t]he client
possesses superior knowledge of another sort--knowledge of the
facts and circumstances of his case.’” Stano v. Dugger,
921
F.2d 1125, 1146 n.33 (11th Cir. 1991) (quoting Spiegel, supra,
at 100) (alteration in original). Further, although the
attorney will generally have more legal expertise, “the client[
has] superior knowledge of her own values,” which potentially
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makes the client “more competent[] than the lawyer” with respect
to the goals of litigation. Spiegel, supra, at 108-09.
Several state courts have also determined that defense
counsel must consult with a defendant before making certain
decisions that may be classified as “strategic” or “tactical.”
The Supreme Court of Delaware evaluated this issue when the
defense counsel agreed to a supplemental jury charge without
consulting with the defendant. Bradshaw v. State, 806 A.2d 131,
134 (Del. 2002). In Bradshaw, during jury deliberations, the
judge convened with counsel to notify them that the jury was
unable to make a decision.
Id. at 133-34. After a brief search
for the defendant at the courthouse was unsuccessful, the
defense counsel agreed that the court would give the jury an
Allen charge, which is “a request from a trial court to the jury
to attempt to come to a decision in the case without abandoning
any firmly held beliefs.”
Id. at 134 (citing Holland v. State,
744 A.2d 980, 981–82 (Del. 2000) (citing Allen v. United States,
164 U.S. 492, 501 (1896))).
The Delaware Supreme Court held that the defendant’s
counsel had no authority to agree to an Allen charge in the
absence of the defendant. Id. at 137. Although the court
ultimately held that defendants have the fundamental right to be
present at trial that “is personal to a defendant[] and may not
be waived by that defendant’s counsel,” the court noted that
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counsel could not have made the decision unilaterally even if
this were not the case. Id. Under the Delaware Lawyers’ Rules
of Professional Conduct, the court reasoned, “a lawyer has a
duty to reasonably consult with his or her client even as to
trial tactics.” Id. at 138 (citing Delaware Lawyer’s Rules of
Professional Conduct Rule 1.2).
Kansas has likewise held that defense counsel does not
have unlimited authority in making tactical decisions. In State
v. Nixon, on the morning that the trial judge was scheduled to
render a verdict in the defendant’s bench trial, the judge met
in chambers with the defense counsel and the prosecutor to tell
them that he overheard someone say that the defendant failed a
lie detector test. 576 P.2d 691, 697 (Kan. 1978). The judge
then said, “If defense counsel thinks that has prejudiced this
Court, I’ll declare a mistrial. Do you want a little time to
think about it?”
Id. The defense counsel responded, “I’m quite
sure it played no part in your decision, and I would see no
reason for the Court not to go right ahead.”
Id. The court
then proceeded to convict the defendant on two of the three
charged offenses.
Id. at 692-93.
The Kansas Supreme Court vacated the defendant’s
convictions. Id. at 697-98. Although the court acknowledged
that the statements “played no part in [the judge’s] decision,”
it stated that “before waiving defendant’s right to a mistrial
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volunteered by the trial court, defendant should have been
consulted by counsel and given an opportunity to consider the
alternatives.” Id. The court held that, regardless of whether
defense counsel’s decision “could very well be [classified] as a
matter of trial strategy,” the defendant was still required to
be consulted.
Id. This is because, as the Nixon court stated,
even those “strategic and tactical decisions” that are the
“province of the lawyer” are to be made only “after consultation
with [the lawyer’s] client.”
Id. (citing ABA Standards for
Criminal Justice: Defense Function, § 5.2) (emphasis added)).
Thus, the Kansas Supreme Court held that a defense counsel
cannot reject a mistrial when offered by the trial court without
consulting with the defendant. Id.
These authorities demonstrate that strategic decisions
at trial are not solely within the province of defense counsel’s
“appropriate judgment.” Certainly defense counsel is
responsible for developing a trial strategy, but in doing so
“defense counsel undoubtedly has a duty to discuss potential
strategies with the defendant.” Florida v. Nixon, 543 U.S. 175,
178 (2004). This duty of course includes consulting with the
defendant regarding those evidentiary stipulations that we have
held necessitate a colloquy because they constitute waivers of
fundamental rights. See infra Section IV.B. But an attorney’s
duty to consult with a client extends far beyond these limited
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circumstances for, as we have held, “every decision to stipulate
to evidence in a case may be considered within the bounds of . .
. trial strategy.” State v. Ui, 142 Hawaii 287, 295, 418 P.3d
628, 636 (2018).
Even when a stipulation does not implicate fundamental
rights, it may establish a substantive fact that could weigh on
the outcome of the case. It would be against the great weight
of authority for a defense counsel not to consult with the
defendant on a decision with such implications. See HRPC Rules
1.2(a), 1.4(a)(2); ABA, Criminal Justice Standards for the
Defense Function, Standard 4-5.2(d). Insofar as the ICA’s
statement could be interpreted to suggest that defense counsel
has unilateral authority to determine matters of “tactics and
procedure” without consultation with the defendant, we now
clarify that defense counsel has a duty to consult with the
defendant before making strategic decisions when it is feasible
and appropriate to do so, including before entering into an
evidentiary stipulation.
B. The Colloquy Requirement
“It is well settled in Hawaii law that a defendant
relinquishes fundamental rights only when a waiver is undertaken
intelligently, knowingly, and voluntarily.” Ui, 142 Hawaii at
293, 418 P.3d at 634 (citing State v. Murray, 116 Hawaii 3, 10-
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11,
169 P.3d 955, 962-63 (2007)). Before accepting the waiver
of a fundamental right, a trial court must engage in an on-the-
record colloquy with the defendant.
Id. This court has
determined that the right to counsel, Carvalho v. Olim,
55 Haw.
336, 342-43,
519 P.2d 892, 897 (1974), the right to trial by
jury, State v. Ibuos,
75 Haw. 118, 121,
857 P.2d 576, 578
(1993), and the right of a defendant to testify, Tachibana v.
State, 79 Hawaii 226, 236,
900 P.2d 1293, 1303 (1995), are
fundamental rights that require an on-the-record colloquy with
the defendant before a trial court can accept a waiver.
As the ICA recognized, a trial court must also engage
in a colloquy with a defendant before it accepts a stipulation
to an element of a charged offense because this amounts to a
waiver of the fundamental due process right to have all elements
of an offense proven beyond a reasonable doubt.12 Murray, 116
Hawaii at 12, 169 P.3d at 964. In State v. Ui, which involved
defense counsel’s stipulation to facts that had the effect of
establishing an element of the charged offense, we expressly
rejected a “trial strategy” exception to the colloquy
requirement, reasoning that such an exception would “ultimately
swallow the colloquy rule” because “every decision to stipulate
12
Article I, section 5 of the Hawai‘i Constitution states in
relevant part, “No person shall be deprived of life, liberty or property
without due process of law.”
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to evidence in a case may be considered within the bounds of [a]
trial strategy exception.” 142 Hawaii at 295, 418 P.3d at 636;
see also Tachibana, 79 Hawaii at 232,
900 P.2d at 1299 (“[A]
defendant’s personal constitutional right to testify truthfully
in his [or her] own behalf may not be waived by counsel as a
matter of trial strategy.” (quoting United States v. Moody,
977
F.2d 1425, 1431 (11th Cir. 1992)) (second alteration in
original)). Thus, Ui reaffirmed the long-standing principle
that a colloquy is required when a stipulation “goes beyond the
bounds of trial tactics and procedure, and impinges
significantly on constitutionally guaranteed right.” State v.
Casey,
51 Haw. 99, 101,
451 P.2d 806, 808–09 (1969). In such
instances, the waiver “must be the personal action of the
beneficiary of right”--and not of counsel.
Id.
Wilson argues that the stipulation was not a waiver of
the right to have every element of an offense proven beyond a
reasonable doubt but rather of a different fundamental right--
her right to confront witnesses against her.13 To be sure, we
have held that some evidentiary stipulations may so inherently
implicate a defendant’s confrontation rights as to require a
13
Article I, section 14 of the Hawai‘i Constitution states in
relevant part, “In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against the accused.”
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colloquy to confirm the defendant has knowingly, voluntarily,
and intelligently acquiesced in the decision.
In State v. Casey, for instance, a husband and wife
that were represented by the same counsel were charged
separately with the same offense, and their cases were
consolidated for a bench trial. 51 Haw. at 100,
451 P.2d at
808. The wife failed to appear on the morning of the trial, and
the court proceeded to try the husband alone, concluding shortly
before noon.
Id. When the wife then appeared that afternoon,
defense counsel stipulated that all of the evidence presented by
both the defense and prosecution during the husband’s trial
would be the same evidence presented during the wife’s trial if
it were to proceed.
Id. The court accepted the stipulation
without engaging the wife in a colloquy and proceeded to find
both the husband and wife guilty.
Id. As with a stipulation to
facts establishing an element of an offense in Ui, this court
held on review that the stipulation went beyond the bounds of
mere trial tactics and strategy to impinge on the wife’s
constitutional right to confrontation, and a colloquy was
therefore required.
Id. at 102,
451 P.2d at 809.
The ICA’s opinion here stated that stipulations like
the one in this case “serve to make the trial process more
efficient by avoiding time-consuming and needless presentation
of evidence on matters that are undisputed.” Wilson, 141 Hawai‘i
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at 467, 413 P.3d at 371. And, as related, the ICA reasoned that
“giv[ing] the defendant veto power over every stipulation agreed
to by his or her counsel[] would burden the trial process and
interfere with the role of defense counsel to exercise
appropriate judgment in trial tactics and procedure.” Id.
Under Ui and Casey, the determination of whether a stipulation
relates to “trial strategy or tactics” is irrelevant when the
stipulation sufficiently infringes on a defendant’s
constitutional rights, and we now hold that efficiency and the
perceived “burden” on the trial process are similarly
immaterial.
Nevertheless, the stipulation in this case did not
establish facts satisfying any elements of the charged offense.
To convict Wilson of OVUII, the State was required to prove that
she operated a vehicle “while under the influence of alcohol in
an amount sufficient to impair [her] normal mental faculties or
ability to care for [herself] and guard against casualty.” HRS
§ 291E-61(a)(1). Stipulating that the officer was “qualified
and certified to conduct the [SFST] and that he received
specialized training in administering and grading all of the
[SFSTs]” is not in itself proof that Wilson was operating a
vehicle or that she was impaired. Thus, the stipulation in this
case did not amount to a waiver of Wilson’s fundamental right to
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have every element of a charged offense proven beyond a
reasonable doubt.
Neither did the stipulation significantly impinge on
Wilson’s confrontation rights. Unlike the evidentiary
stipulation at issue in Casey, the stipulation in this case did
not serve as a substitute for evidence from which a factfinder
could conclude that any element of the charged offenses was
satisfied in whole or in part. Instead, this stipulation was to
an evidentiary foundation involving the qualifications of a
witness.14 Under the circumstances, we cannot say that the
stipulation so infringed upon Wilson’s right to confront Officer
Hattori that a colloquy was required.
The ICA thus correctly concluded that the district
court did not err in failing to engage in a colloquy with Wilson
before accepting the stipulation as to Officer Hattori’s
qualifications.15 Wilson, 141 Hawaii at 467, 413 P.3d at 371.
14
The fact that the stipulation was solely to an evidentiary
foundation is not dispositive. Evidentiary foundations can greatly differ in
importance from case to case, and stipulating to certain foundational facts
in a case may implicate a defendant’s fundamental rights. A trial court
would likely need to engage the defendant in a colloquy prior to accepting a
stipulation to the accuracy of a DNA test indicating the defendant was the
party responsible for a crime, for example.
15
In reaching its conclusions, the ICA relied in part on State v.
El’Ayache, 62 Haw. 646, 647,
618 P.2d 1142, 1143 (1980), in which defense
counsel stipulated that if called to the stand, two potential witnesses would
testify that they had observed the defendant put items of clothing in a
handbag and leave their employer’s store without paying for the items.
Wilson, 141 Hawai‘i at 467, 413 P.3d at 371. The El’Ayache court concluded
that the trial court did not err in admitting the stipulation without
(continued . . .)
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C. Determining Prejudice
Although the ICA correctly held that a colloquy was
not required in this case, the ICA appears to have set forth an
alternative holding that established a new test for evaluating
whether the lack of a required colloquy sufficiently prejudiced
a defendant to warrant vacating a conviction. After a brief
discussion of Murray, the ICA stated, “Wilson makes no showing
that absent the stipulation, the State would have been unable to
establish Officer Hattori’s qualifications to administer field
sobriety tests.” Wilson, 141 Hawaii at 467, 413 P.3d at 371.
Thus, the ICA decision suggests that when a trial court errs by
failing to conduct a required colloquy prior to accepting an
evidentiary stipulation, the error will not justify a new trial
unless the defendant can demonstrate that the State would have
been unable to establish the substance of the stipulation
through other evidence.
(. . . continued)
conducting a colloquy because the defendant’s right to confrontation “may, in
appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process” such as “the right of defense counsel to make an
appropriate judgment on the trial tactics and procedure.” 62 Haw. at 649,
618 P.2d at 1144. The stipulation in El’Ayache was to the testimony of the
witnesses that would establish the elements of the charged offense. The
reasoning of El’Ayache is thus questionable in light of our prior holding in
Casey that a colloquy is required when a stipulation significantly impinges
upon a defendant’s fundamental right to confront witnesses.
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Our law is well-established that the failure of a
trial court to deliver a constitutionally required colloquy is
evaluated under the harmless beyond a reasonable doubt standard,
under which appellate courts must determine “whether there is a
reasonable possibility that error might have contributed to
[the] conviction.” State v. Eduwensuyi, 141 Hawaii 328, 336,
409 P.3d 732, 740 (2018) (quoting State v. Han, 130 Hawaii 83,
93,
306 P.3d 128, 138 (2013)). If such a reasonable possibility
exists, then “the judgment of conviction on which it may have
been based must be set aside.” State v. Gano, 92 Hawaii 161,
176,
988 P.2d 1153, 1168 (1999) (quoting State v. Pulse, 83
Hawaii 229, 248,
925 P.2d 797, 816 (1996)). And in making this
evaluation, the burden is not on the defendant to prove that the
error could have affected the outcome of the case but rather on
the State to prove that it could not have. See State v. Chin,
135 Hawai‘i 437, 449,
353 P.3d 979, 991 (2015) (“[T]here was no
showing by the State that such misconduct was harmless beyond a
reasonable doubt.”); Han, 130 Hawai‘i at 93,
306 P.3d at 138
(“[T]hus the burden rests on the State to establish ‘the
violation was harmless beyond a reasonable doubt.’” (quoting
Tachibana, 79 Hawai‘i at 240,
900 P.2d at 1307)).
Rather than consider whether the State has
demonstrated that the stipulation could not have affected the
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outcome of the case, the ICA’s test appears to evaluate whether
the defendant has established that the State would have been
unable to prove the stipulated fact that was erroneously
accepted by the court. This novel approach would impermissibly
shift the burden of demonstrating prejudice onto the defendant,
and it is inconsistent with our case law. We thus hold that the
ICA’s newly-created test should not be employed in any instance
in which a trial court has failed to engage the defendant in a
required colloquy.16
V. CONCLUSION
Based on the foregoing, the ICA’s February 28, 2018,
Judgment on Appeal and the district court’s August 27, 2015,
16
Although the issue was not raised in Wilson’s application, we
note that in reversing Wilson’s conviction for refusal pursuant to State v.
Won, 137 Hawaii 330, 372 P.3d 1065 (2015), the ICA expressed doubt about
Won’s continued validity in the wake of the U.S. Supreme Court’s decision in
Birchfield v. North Dakota,
136 S. Ct. 2160 (2016). See Wilson, 141 Hawaii
at 465-66, 413 P.3d at 369-70. In Birchfield, the U.S. Supreme Court held
that “the Fourth Amendment [to the United States Constitution] permits
warrantless breath tests incident to arrests.”
136 S. Ct. at 2184 (emphasis
added). As the ICA recognized, “the Hawaii Supreme Court is free to give
broader protection under the Hawaii Constitution than given by the United
States Constitution.” Wilson, 141 Hawaii at 466, 413 P.3d at 370. This
court clearly did so in Won, in which we held that the search incident to
arrest exception to the warrant requirement is inapplicable to intoxilyzer
tests under the Hawai‘i Constitution. See Won, 137 Hawaii at 339 n.23,
372
P.3d at 1074 n.23. Birchfield did not undermine this conclusion, which was
predicated on long-standing principles regarding the parameters of the search
incident to arrest exception under the Hawai‘i Constitution. See
id. at 353
n.45,
372 P.3d at 1088 n.45 (citing State v. Kaluna,
55 Haw. 361, 367, 369-
70,
520 P.2d 51, 57–59 (1974)). The ICA’s uncertainty regarding Won was thus
unwarranted.
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Entry of Judgment are affirmed but based upon the reasons set
forth in this opinion.
Jacqueline R. Maele /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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