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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-JUN-2019
12:33 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI I
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________________________________________________________________
STATE OF HAWAI I,
Respondent/Plaintiff-Appellee,
vs.
DAVIS YEN HOY CHANG,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-16-04150)
JUNE 28, 2019
OPINION OF THE COURT BY RECKTENWALD, C.J.1
1
Chief Justice Recktenwald writes for the court, except with respect to
whether, prospectively, trial courts may consolidate hearings on motions to
suppress evidence with trials. With respect to that issue, Justice Pollack
writes for the majority of the court, and Chief Justice Recktenwald
respectfully dissents.
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I. INTRODUCTION
This case requires us to consider the advisements that
a trial court provided a defendant with regard to the right to
testify, when the court consolidated a suppression motion with
the trial on the merits.
Davis Yen Hoy Chang (Chang) was charged with Operating
a Vehicle Under the Influence of an Intoxicant (OVUII).2 Chang
filed a motion to suppress statements that he allegedly made to
the police officer who arrested him. The District Court of the
First Circuit consolidated the hearing on Chang’s motion to
suppress with his bench trial, and provided Chang with several
advisements about his right to testify. Chang declined to
testify. The district court granted the suppression motion in
part, but found Chang guilty. After unsuccessfully appealing to
the Intermediate Court of Appeals (ICA), Chang timely filed an
application for writ of certiorari with this court.
We conclude that the district court erroneously advised
Chang with regard to his right to testify in the context of a
consolidated suppression hearing and trial. Accordingly, we
2
Hawaii Revised Statutes (HRS) § 291E-6 1(a)(1) (2007) provides: “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[ w]hile 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[.]”
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vacate his conviction, and remand the case for further
proceedings.
II. BACKGROUND
A. District Court Proceedings
1. Preliminary Matters
Chang was charged by complaint with OVUII. Chang filed
motions to suppress all verbal and non-verbal statements that he
made after he was pulled over by Honolulu Police Department
Officer Jared Spiker (Officer Spiker) and prior to his arrest,
including his performance on the standardized field sobriety test
(SFST).
2. Consolidated Suppression Hearing and Bench Trial
At the outset of the proceeding, the court asked
defense counsel if counsel was going to consolidate the hearing
on the motion to suppress with the bench trial. The district
court3 engaged Chang as follows:
The Court: Mr. Chang, based on what your attorney is
saying, it’s my understanding that we’re
going to consolidate this motion with the
trial[.] [I]s that your understanding as
well?
Chang: Correct.
The Court: And that’s what you want to do today?
3
The Honorable Trish K. Morikawa presided.
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Chang: Correct.
The Court: Okay. So then, since we’re ultimately
doing a trial, I’m going to go through my
[] trial questions.
After the district court asked Chang preliminary
questions regarding a proposed plea agreement, Chang pled not
guilty. The district court then accepted the parties’
stipulations, for the purposes of both the suppression motion and
trial, that Officer Spiker was trained, experienced, and
qualified to administer and evaluate SFSTs; would testify only as
a lay witness; would not testify about the horizontal gaze
nystagmus (HGN) portion of the SFST; and would not make legal
conclusions as to whether Chang had passed or failed any portions
of the SFST.
The district court informed Chang of his right to
testify and his right not to testify at trial4 as follows:
The Court: [S]ince we’re doing this as a . . .
consolidated trial, I have to inform you,
Mr. Chang, you have the constitutional
4
This pre-trial advisement is required by State v. Monteil, 134 Hawaii
361, 371, 341 P.3d 567, 577 (2014), and State v. Lewis, 94 Hawaii 292, 297,
12 P.3d 1233, 1238 (2000). “[P]rior to the start of trial, the court shall []
inform the defendant of [the] personal right to testify or not to testify and
[] alert the defendant that, if [the defendant] has not testified by the end
of the trial, the court will briefly question [the defendant] to ensure that
the decision not to testify is the defendant’s own decision.” State v. Han,
130 Hawaii 83, 89,
306 P.3d 128, 134 (2013) (citing Lewis, 94 Hawaii at 297,
12 P.3d at 1238). The court must also advise the defendant at this time that
the defendant’s exercise of the right not to testify may not be used by the
fact finder when determining the defendant’s innocence or guilt. Monteil, 134
Hawaii at 373,
341 P.3d at 579.
4
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right to testify in your own defense. Do
you understand that?
Chang: Yes, I do.
The Court: Okay. Although you should consult with
your attorney regarding the decision to
testify, it is your decision and no one
can prevent you from testifying should you
. . . choose to do so; do you understand?
Chang: I do.
The Court: Okay. If you decide to testify, the
prosecutor will be allowed to crossexamine you; do you understand?
Chang: I do understand that.
The Court: Okay. You also have a constitutional
right not to testify and to remain silent.
Do you understand that as well?
Chang: Yes.
The Court: Okay. If you choose not to testify, the
court cannot hold your silence against you
in deciding your case; do you understand?
Chang: Yes.
. . . .
The Court: Do you have any questions about what I
have explained?
Chang: No, I do not.
The State called Officer Spiker as its sole witness for
the purposes of both the suppression motion and the trial.
a. Officer Spiker’s Testimony
Officer Spiker testified that at approximately 1:10
a.m. on November 13, 2016, he noticed Chang driving without
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illuminated headlights. Officer Spiker observed Chang make an
illegal left turn at an intersection with “at least two signs
that [said] no left turn.” Officer Spiker followed Chang and
pulled him over.
Officer Spiker testified that as soon as he began
conversing with Chang, who had been driving alone, he smelled a
“strong odor of alcohol” coming from Chang’s breath. He also
noticed that Chang’s eyes were “red, watery, and glassy,” that
Chang’s face was flushed, and that Chang’s speech was slurred.
Officer Spiker asked for Chang’s driver’s license,
registration, and insurance, which Chang provided without
difficulty or delay. Officer Spiker informed Chang that he had
been pulled over because of his driving infractions and offered
Chang an SFST.5 At Officer Spiker’s request, Chang exited his
vehicle without difficulty. Officer Spiker testified that at
this point, Chang “was not free to leave.”
Officer Spiker testified that Chang agreed to
participate in the SFST and stated “that he had [had] some drinks
5
On cross-examination, Officer Spiker explained that although he told
Chang that participation in the SFST was “voluntary,” he did not specifically
tell Chang that he had “the right to refuse” the test. Officer Spiker
explained, “I didn’t, like, demand he get out [of the vehicle] but I just kind
of said, . . . [I’m] going to offer you [an SFST] . . . based on your traffic
violations and indicia of alcohol, and if you’d like to participate, and then
he said yeah, he would.”
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earlier.” After Chang answered “no” to each of the medical rule-
out questions posed by Officer Spiker, Officer Spiker
administered the SFST. The SFST consisted of the HGN test, the
walk-and-turn test, and the one-leg-stand test. Officer Spiker
testified that Chang did not perform the walk-and-turn test or
the one-leg-stand test as instructed. With respect to the walk-
and-turn test, Officer Spiker noted that Chang started the test
before being instructed to do so; missed numerous heel-to-toe
steps; stepped off the line three times; and turned the wrong way
without the required pivot. With respect to the one-leg-stand
test, Officer Spiker noted that Chang’s right foot touched the
ground multiple times during the balancing sets; Chang did not
look at his foot throughout the sets despite instructions to do
so; Chang skipped numbers as he counted; and Chang was “swaying
noticeably.”
Officer Spiker further testified that throughout the
SFST, Chang was argumentative, interrupted him, and asked him at
least five times why he pulled Chang over, despite his repeated
explanations. Officer Spiker also testified that, at some point
during the SFST, Chang was offered a preliminary alcohol
screening device test (PAS), but refused the PAS because he said
“he didn’t trust it.”
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Officer Spiker testified that he arrested Chang for
OVUII, in light of the totality of the circumstances. He
explained that he considers the “totality of the circumstances”
when deciding whether to arrest someone for OVUII, including the
amount of traffic violations observed, indicia of intoxication,
and an individual’s demeanor, SFST performance, and abilities to
cooperate and follow instructions. Officer Spiker also testified
that he did not at any point advise Chang regarding the right to
remain silent.
b. Hearing on the Motion to Suppress
After Officer Spiker testified, the district court
addressed Chang’s motion to suppress. The following discussion
took place, wherein defense counsel initially indicated that
Chang intended to testify for purposes of the suppression
hearing:
The Court: Why don’t we do the argument on the motion
. . . first, okay? . . . . [W]ell, even
before then, did you want to have anyone
[] testify in regard to the motion? . . .
[I]f you’re going to have [Chang] testify
in regard to the motion, I need to know[.]
. . . .
Wait. This is going to get a little
confusing since we’re doing the motion
combined with the trial. So I’m going to
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Tachibana[6] him a second time – okay.
Wait. So the State has no further
witnesses. You’re saying for purposes of
this motion you may have a witness?
Defense: Only [Chang]. Only for purposes of this
motion.
(Emphasis added).
The district court proceeded to advise Chang that any
testimony offered at the suppression hearing would be considered
for the purposes of trial:
The Court: [S]ince we’re doing it as a consolidation
we kind of have to do it together so I’m
going to Tachibana him[.] . . . [W]e’ll do
that but I’m feeling like I’m skipping
steps because you still didn’t make your
motion and we still didn’t – okay. Let me
just Tachibana him because if you’re going
to have him testify for purposes of the
motion we gotta have that on the – okay.
The State: I’m sorry, your honor, to interfere but
because this was consolidated, [] I would
assume if he testifies it’s going to be []
part of the trial.
The Court: [T]hat’s the problem is if [Chang]’s going
to testify it’s also – since we’re
consolidating it, it’s part of the trial
as well.
Defense: Right. And we can stipulate that we’ll
6
In Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293, 1303 (1995),
we held that trial courts must advise criminal defendants of the right to
testify and, where a defendant chooses not to testify, the trial court must
obtain an on-the-record waiver of that right. This on-the-record waiver
serves as an assurance that the defendant was aware of the right to testify
and that the defendant’s waiver of that right was knowing, voluntary, and
intelligent. Id. at 234-37,
900 P.2d at 1301-04. Further, in State v.
Torres, 144 Hawaii 282, 285,
439 P.3d 234, 237 (2019), we made clear that
“trial courts must engage the defendant in an on-the-record colloquy regarding
the right to testify and to not testify when either right is waived,
effectively making such a colloquy necessary in every [criminal] trial.”
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limit the questioning to the motion issue
because I’m not having him go into
particular details. And so sometimes
there’ll be a stipulation with the State
that we’ll just limit the questioning to
the motion and –
The Court: See, I don’t know how we can do that since
we’re consolidating it.
Defense: Well, that’s more for efficiency
purposes[.] . . . If we consolidate, it
just means we don’t want to have a
separate hearing on the motions and a
trial another day, so for efficiency
purposes . . . we’re consolidating
everything so we don’t have to have
multiple hearings on multiple dates.
The Court: Right. But what he testifies to I’m going
to listen to it and decide in regard to
the trial as well. You see what I mean?
. . . .
So, . . . even if you’re limiting it to
just the motion, whatever he gets up on
the stand to [say], I’m going to actually
have to decide on it for the trial.
Defense: Understood. But there’s an understanding
with the State that we’re limiting the
questioning to the motion as . . . it
relates to the motion[.] . . . [T]hat’s
how . . . historically we’ve done it, we
limit the question to the motion, we’re
not going to go into, I guess, drinking
alcohol, that sort of thing, or if it
existed or not. I’m just focusing on the
interaction between him and the officer as
to the ordering out, the consent, [the]
voluntariness of [] the [SFST] and any
statements, you know.
The Court: Okay. But the court’s going to listen to
all of that [testimony] and use all of
that in determining for the trial
[Chang’s] guilt or innocence as well.
. . . .
Because if [Chang] doesn’t want to
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testify, I want to make sure he has that
right not to testify. But if he testifies
for purposes of the motion, then we’re
kind of stuck at that point since we’re
consolidating the motion and the trial, so
I can’t unhear what I’ve heard. I mean, I
guess . . . I technically could but it’d
be . . .
Defense: Hard.
. . . .
The Court: I mean, but it’s your choice. So if you
want to, you can put [Chang] on, but I’m
just trying to say, since we’re doing this
as a consolidated hearing, whatever he’s
saying in the motion, technically since
we’re consolidating it, I don’t know how -
- I can’t use that for the trial.
. . . .
The State: Or, your honor, I know the court already
kind of consolidated the hearing and the
trial but if defense is going to have his
witness testify for the purposes of the
motion, we don’t necessarily have an
objection as to separating it for trial
purposes.
. . . .
So if that’s what defense counsel wants to
do, [] maybe there was a . . .
misunderstanding.
. . . .
The Court: So if you want to put [Chang] on just for
purposes of the motion, so then
technically I guess we’re not
consolidating, okay, so we have to go
backwards. [Be]cause if we’re not going
to consolidate it, I mean, we’re
consolidating [Officer Spiker’s] portion
of the testimony but not [Chang’s] portion
of the testimony because he always has the
right to remain silent for trial.
Defense: Correct.
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The Court: Okay. And if there is a separate motion
and the [] trial, like I said, I can put
[] aside whatever [Chang] said, but since
it was the agreement to consolidate, then
I couldn’t. So if you want to do the
separate motion now and keep it separate
and then do the trial portion in regard to
your client, it’s a little strange for me,
but I can do that, if that’s what you want
to do.
(Emphases added).
The district court then recessed so that Chang could
discuss with defense counsel whether he would testify on his
motion to suppress and bifurcate the hearing on the motion from
the trial. After reconvening, however, the district court
attempted to correct its prior statements about Chang’s inability
to testify solely for the purposes of the motion:
The Court: So I just want to make everything clear []
[be]cause you threw me for a loop, Mr.
Lewis, saying that [Chang] wanted to
testify [for purposes of the motion to
suppress]. It’s very rare that it happens
in a motion to suppress so I had to
rethink everything, since it was a
consolidated hearing.
[J]ust so that we’re clear, if [Chang]
wants to testify for the motion to
suppress, he has that right, [] but I’d
have to [] bifurcate, instead of
consolidating it[.] . . . So he has the
right to testify for the motion. I . . .
won’t Tachibana him. I can listen to him
testify for the motion and then I can
rule[.]
. . . .
[I]f you consolidate the testimony of
[Officer Spiker], then at that point if
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you wanted to make any motions, you can
make any motions at that point and then
[Chang] could decide if he wants to
testify for purposes of trial.
. . . .
Okay? And then any testimony that [Chang]
made for purposes of the motion the court,
only if he wanted to, would the court then
decide, you know, if he wants to testify,
then we can decide whether or not . . .
what he testified to earlier in the motion
would be consolidated or not or if he
wanted to add to it or things like that.
Okay. So it’s two separate rights. So I
don’t want him to think that he doesn’t
have that right.
. . . .
So, Mr. Chang, like I said, I know it was
a little confusing, and I might have been
confusing to you, so I want to make sure
that it’s absolutely clear to you.
Although we agreed to consolidate . . .
the motion and the trial . . . , you have
a right to testify at the motion as well
as a right to testify at trial.
Chang: Okay.
The Court: That whole right to remain silent, that
goes for the trial portion of it. . . .
But if you wanted to testify for the
motion, it’s your right. We can figure
out how to work the logistics of it in our
own way. And if you testify at the
motion, it doesn’t necessarily mean that
what you testify in the motion I’m
automatically going to use for the trial.
Chang: Okay.
The Court: If you didn’t want to, you know, whatever
you said in the motion, if you didn’t want
it for the trial, I would just have to
take it out of my mind and put it on the
side. Okay?
Chang: Okay.
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The Court: So that’s your right. So I want to make
sure you clearly understand your rights.
Okay?
Chang: Yes, your honor.
(Emphases added).
Chang ultimately declined to testify for purposes of
the suppression hearing:
The Court: So now, knowing that, . . . are you going
to be testifying in regard to the motion?
Defense: No.
Chang: No. No, I will not, your honor.
The Court: Okay. And that’s your choice not to?
Chang: Correct.
With regard to the motion, Chang sought to exclude from
evidence any questions that he asked Officer Spiker regarding why
he had been pulled over, any mistakes that he made while
counting, and his performance on the SFST. He argued that any
statements that he made after being pulled over required
suppression in light of Officer Spiker’s testimony that he was
“not free to leave” and Officer Spiker’s failure to advise him of
his right to remain silent. The State argued that Officer
Spiker’s traffic stop was noncustodial due to its brevity and
non-coercive nature, and as such, Officer Spiker was not required
to advise Chang of his right to remain silent.
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The district court granted Chang’s motion to suppress
with regard to his verbal statements, pursuant to State v.
Tsujimura, 140 Hawaii 299, 400 P.3d 500 (2017). However, it
denied Chang’s motion to suppress with regard to Officer Spiker’s
observations of Chang’s “physical action” during the SFST because
Chang “voluntarily agreed to do the [SFST].” The defense moved
to dismiss Chang’s charge on the ground of insufficient evidence,
but the district court denied the motion, considering the
evidence “in the light most favorable to the State.”
c. The Trial
The district court conducted a Tachibana colloquy,
explaining to Chang that: he had the constitutional right to
testify or not to testify at trial; no one could prevent him from
doing so; if he chose to testify, he would be subject to cross-
examination; and if he chose to remain silent, his silence could
not be held against him. Chang confirmed that he understood
these rights and declined to testify.
In its closing argument, the State argued that Officer
Spiker’s testimony regarding Chang’s traffic violations and SFST
performance was sufficient to carry its burden of proof that
Chang committed OVUII. In response, the defense argued that
Chang’s traffic violations were not “indicative of [alcohol]
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impairment”; Chang was able to produce the requested documents to
Officer Spiker without difficulty; and even though Chang’s SFST
performance was “not perfect,” Officer Spiker’s testimony did not
constitute a sufficient basis for the district court to find that
Chang committed OVUII.
The district court found Officer Spiker’s testimony to
be credible and explained that “the only question [was] whether
or not [Chang, while] operating [a] vehicle[,] [consumed alcohol]
in an amount sufficient to impair his normal mental faculties or
ability to care for the person and guard against casualty.” The
district court found Chang guilty of OVUII and sentenced him to a
$150 fine and other requirements.
B. Appeal to the ICA
On appeal to the ICA, Chang contended that: (1) under
Tsujimura, the district court erred in denying Chang’s motion to
suppress evidence of his SFST performance; (2) his conviction was
not supported by substantial evidence; (3) his waivers of his
rights to testify for the purposes of the suppression motion and
trial were not knowing, intelligent, and voluntary; and (4)
Chang’s attorney provided ineffective assistance of counsel. The
ICA rejected Chang’s arguments and affirmed his conviction.
First, the ICA held that the district court had
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appropriately considered Chang’s SFST performance, given this
court’s holding in State v. Wyatt that routine traffic stops do
not constitute “custodial interrogation.” 67 Haw. 293,
687 P.2d
544 (1984). The ICA rejected Chang’s reliance on Tsujimura,
explaining that in Tsujimura, “the issue was whether the
defendant’s pre-arrest silence could be used against him
substantively as an implication of guilt, [and] not whether[, as
here,] non-custodial, pre-arrest statements made by a defendant
[could] be used as evidence.” Further, citing to State v.
Kaleohano, 99 Hawaii 370, 376,
56 P.3d 138, 144 (2002), the ICA
held that “Chang was not in custody merely by virtue of being
pulled over during a traffic stop[,]” and that Chang was not
“subjected to custodial interrogation” at any point prior to, or
during, the SFST. The ICA determined that Miranda warnings -
including an advisement of Chang’s right to remain silent - were
not necessary, and Chang’s right against self-incrimination was
not violated, because the totality of the circumstances reflected
that Chang was not in custody. In light of this conclusion, and
the district court’s finding that Officer Spiker was a credible
witness, the ICA held that there was sufficient evidence to
support Chang’s conviction.
Second, the ICA concluded that Chang knowingly,
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intelligently, and voluntarily waived his rights to testify for
purposes of both his motion and trial. While acknowledging that
the district court “initial[ly] misstate[d] . . . the
implications of consolidating the hearing on the motion to
suppress with the trial[,]” the ICA noted that the district court
later clarified that Chang “could choose whether his testimony
for the motion to suppress would be used for the purposes of
trial.” Because the district court “remedied its misstatements”
by stating that it would consider Chang’s testimony for the
motion to suppress separately, granted a recess so that Chang
could confer with defense counsel, and reiterated its corrected
position, and because Chang ultimately “indicated that he
understood” his rights, the ICA could not “conclude that Chang’s
rights were violated by the [d]istrict [c]ourt’s initial
misstatement.”
The ICA also rejected Chang’s argument that his waiver
of the right to testify at trial was “irreparably compromised by
the [district] court’s misapprehension that it could not hold a
consolidated hearing and trial without holding Chang’s testimony
on the motion against him.” The ICA explained that any confusion
regarding whether the district court could consider Chang’s
testimony on the suppression motion for purposes of the trial
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“was irrelevant to Chang’s subsequent decision to waive his right
to testify at trial.” As such, Chang’s waiver of the right to
testify at trial was knowing, intelligent, and voluntary.
Finally, the ICA rejected Chang’s argument that his
attorney provided ineffective assistance of counsel. The ICA
noted that “there [was] nothing in the record to support Chang’s
assertions concerning what his counsel did or did not advise
him.” Further, the ICA determined that Chang’s claim was without
merit, as “the [d]istrict [c]ourt itself advised Chang that he
could choose to testify only for the purpose of the motion to
suppress[] and Chang acknowledged that he understood this
advisement, but that he did not want to testify.”
III. STANDARDS OF REVIEW
A. Constitutional Law
Appellate courts answer “questions of constitutional
law by exercising [their] own independent judgment based on the
facts of the case. Thus, [this court reviews] questions of
constitutional law under the ‘right/wrong’ standard.” State v.
Fields, 115 Hawaii 503, 511, 168 P.3d 955, 963 (2007) (internal
quotation marks, citations, and ellipses omitted).
B. Sufficiency of the Evidence
We have long held that evidence adduced in the trial
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court must be considered in the strongest light for
the prosecution when the appellate court passes on the
legal sufficiency of such evidence to support a
conviction; the same standard applies whether the case
was before a judge or a jury. The test on appeal is
not whether guilt is established beyond a reasonable
doubt, but whether there was substantial evidence to
support the conclusion of the trier of fact. Indeed,
even if it could be said in a bench trial that the
conviction is against the weight of the evidence, as
long as there is substantial evidence to support the
requisite findings for conviction, the trial court
will be affirmed.
State v. Matavale, 115 Hawaii 149, 157-58, 166 P.3d 322, 330-31
(2007).
Substantial evidence as to every material element of
the offense charged is credible evidence which is of
sufficient quality and probative value to enable [a
person] of reasonable caution to support a conclusion.
And as trier of fact, the trial judge is free to make
all reasonable and rational inferences under the facts
in evidence, including circumstantial evidence.
State v. Batson, 73 Haw. 236, 248-49,
831 P.2d 924, 931 (1992)
(internal quotation marks and citations omitted).
IV. DISCUSSION
In his application for writ of certiorari, Chang
asserts the same arguments that he raised on appeal. The
dispositive issue, however, is whether Chang knowingly,
intelligently, and voluntarily waived his right to testify for
purposes of his suppression motion.7
As set forth below, we hold that the district court
7
We do not address Chang’s other arguments, except to find that
sufficient evidence supported Chang’s conviction.
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erroneously advised Chang concerning his right to testify for the
purposes of the suppression motion by suggesting that Chang’s
testimony on the motion could be used as evidence of his guilt or
innocence at trial. Although the district court attempted to
correct its misstatements on this matter, it failed to do so
adequately. Accordingly, we cannot conclude that Chang validly
waived his right to testify.
Hawai i Rules of Penal Procedure (HRPP) Rule 12(e)
provides:
A motion made before trial shall be determined before
trial unless the court orders that it be deferred for
determination at the trial of the general issue or
until after verdict; provided that a motion to
suppress made before trial shall be determined before
trial. Where factual issues are involved in
determining a motion, the court shall state its
essential findings on the records.
HRPP Rule 12(e) (2007).
We previously held, however, that pre-trial suppression
hearings and trials could be consolidated, provided that the
parties agreed to do so on the record. In State v. Doyle, the
defendant did not object to the consolidation of her suppression
hearing and trial. 64 Haw. 229, 231 n.3,
638 P.2d 332, 334 n.3
(1981). On appeal, this court rejected the defendant’s challenge
to the consolidation, holding that:
[W]here the trial court at a bench trial expressly
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advises the parties, for the record, of its intention
to hear the motion and the merits contemporaneously[,]
and no objection is voiced by either party to the
proposed procedure, the trial court may then proceed
to hear the issues contemporaneously. The trial court
should, however, enter its ruling on the motion to
suppress before finally determining the merits of the
charge against the defendant. Moreover, we remind the
trial courts that “[w]here factual issues are involved
in determining a motion, the court shall state its
essential findings on the record.”
Id. at 231,
638 P.2d at 334 (citations and footnotes omitted).
In State v. Thomas, “we remind[ed] the lower courts
that Doyle require[d] an express statement and agreement by the
parties, on the record, where the court intend[ed] to hear
testimony on the motion and merits contemporaneously.” 72 Haw.
48, 54,
805 P.2d 1212, 1214 (1991).
Thus, Doyle and Thomas authorized the consolidation of
proceedings when the trial court did so expressly and the parties
agreed to such consolidation, which was the case here.8 The
district court, however, was nevertheless required to accurately
advise Chang of the implications of testifying in the unique
context of a consolidated proceeding. Here, the district court’s
initial advisements on the subject were erroneous and its
subsequent attempts to correct its error were insufficient.
As noted above, the district court initially advised
8
However, the majority opinion by Justice Pollack prospectively overrules
Doyle and Thomas.
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Chang that if he chose to testify for purposes of the suppression
hearing, his testimony could be used against him at trial:
The Court: [T]hat’s the problem is if [Chang]’s going
to testify it’s also – since we’re
consolidating it, it’s part of the trial
as well.
. . . .
[W]hat [Chang] testifies to [in the
suppression hearing,] I’m going to listen
to it and decide in regard to the trial as
well. You see what I mean?
. . . .
So, I mean, even if you’re limiting it to
just the motion, whatever he gets up on
the stand to [say], I’m going to actually
have to decide on it for the trial.
. . . .
[T]he court’s going to listen to all of
that [testimony] and use all of that in
determining for the trial [Chang’s] guilt
or innocence as well.
. . . .
[I]f [Chang] testifies for purposes of the
motion, then we’re kind of stuck at that
point since we’re consolidating the motion
and the trial, so I can’t unhear what I’ve
heard.
. . . .
[S]ince we’re doing this as a consolidated
hearing, whatever [Chang’s] saying in the
motion, technically since we’re
consolidating it, I don’t know how [] I
can’t use that for the trial.
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These statements by the court were in error. See,
e.g., Simmons v. United States, 390 U.S. 377 (1968). In Simmons,
the defendant testified at a suppression hearing with regard to
whether he was the owner of items that were found in a suitcase
during a search that he contended was illegal.
Id. at 389. The
trial court allowed that testimony to be used against the
defendant at trial and the defendant was ultimately convicted of
robbery.
Id. The United States Supreme Court reversed the
conviction, noting:
In these circumstances, we find it intolerable that
one constitutional right should have to be surrendered
in order to assert another. We therefore hold that
when a defendant testifies in support of a motion to
suppress evidence on Fourth Amendment grounds, his
testimony may not thereafter be admitted against him
at trial on the issue of guilt unless he makes no
objection.
Id. at 394.
Thus, pursuant to Simmons, Chang had the right to
testify for the purpose of his motion to suppress without having
that testimony used against him at trial. It was essential that
Chang be informed of those rights in order to ensure that his
decision whether to testify at the suppression hearing was
knowingly and intelligently made.
Under Tachibana and its progeny, trial courts must
engage in an on-the-record colloquy with a defendant, explaining
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to the defendant the right to testify and the right not to
testify. 79 Hawaii at 236, 900 P.2d at 1303. The purpose of
the colloquy is to ensure that any waiver of these rights is
knowing, intelligent, and voluntary.
Id. As we have explained,
“[a] defendant’s understanding of the right to testify or not is
fundamental to a fair trial[,]” and trial courts have a “serious
and weighty responsibility” to determine whether a waiver of
those rights is knowing and voluntary. State v. Monteil, 134
Hawaii 361, 371,
341 P.3d 567, 577 (2014) (citing Tachibana, 79
Hawaii at 233,
900 P.2d at 1300). Furthermore, “[i]n conducting
a colloquy, the trial court must be careful not to influence the
defendant’s decision whether or not to testify.” Id. at 370,
341
P.3d at 576 (citation omitted).
“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 Hawaii 165, 171, 415 P.3d 907,
913 (2018) (citation omitted). Under the totality of the
circumstances here, it is clear that the district court erred in
conducting its pre-trial advisements, by initially suggesting
that Chang’s testimony on the suppression motion would be
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considered by the district court for purposes of the trial.
Although it appears that the district court recognized
its error and attempted to correct it, we conclude that the
district court’s efforts did not adequately dispel the confusion
created by the court’s prior misstatements. Significantly, the
district court incorrectly implied that it had discretion to
consider Chang’s suppression hearing testimony at trial by
stating, “if you testify at the motion, it doesn’t necessarily
mean that what you testify in the motion I’m automatically going
to use for the trial.” (Emphases added). In fact, as discussed
above, the district court would have been precluded from
considering Chang’s suppression hearing testimony absent Chang’s
consent. Simmons, 390 U.S. at 393-94.
Considering all these circumstances, we cannot conclude
that Chang knowingly, intelligently, and voluntarily waived his
right to testify for the purposes of the pre-trial suppression
hearing. Accordingly, his conviction must be vacated.
V. CONCLUSION
We vacate the ICA’s October 3, 2018 Judgment on Appeal
and the District Court of the First Circuit’s August 25, 2017
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Notice of Entry of Judgment and/or Order and Plea/Judgment, and
remand the case for further proceedings.
Alen M. Kaneshiro /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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