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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2022
07:47 AM
Dkt. 40 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOSEPH ECKERT, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTA-21-00038)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Joseph Eckert (Eckert) appeals from
the Notice of Entry of Judgment and/or Order and Plea/Judgment
(Judgment) entered on June 29, 2021, in the Honolulu Division of
the District Court of the First Circuit (District Court).1 After
a bench trial, Eckert was convicted of Operating a Vehicle Under
1
The Honorable Ann S. Isobe presided.
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the Influence of an Intoxicant (OVUII) under Hawaii Revised
Statutes (HRS) § 291E-61(a)(1) (Supp. 2019).2
Eckert raises three points of error on appeal,
contending that the District Court erred: (1) by failing to
conduct a sufficient colloquy with Eckert concerning his
constitutional right to testify in accordance with Tachibana v.
State, 79 Hawai#i 226, 900 P.2d 1293 (1995), and State v. Lewis,
94 Hawai#i 292,
12 P.3d 1233 (2000); (2) in convicting Eckert of
OVUII because the State failed to prove beyond a reasonable doubt
that Eckert was under the influence of alcohol in an amount
sufficient to impair his normal faculties or ability to care for
himself and guard against casualty; and (3) by failing to address
Eckert regarding his right to presentence allocution as required
by article I, section 5 of the Hawai#i Constitution and HRS §
706-604(1) (2014).
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 by the parties, we
resolve Eckert's points of error as follows:
2
HRS § 291E-61(a)(1) provides:
§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (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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(1) As the State concedes, the District Court plainly
erred by omitting parts of the Tachibana colloquy and by not
obtaining Eckert's waiver of his right to testify directly from
Eckert, as opposed to through Eckert's attorney. The record
confirms, inter alia, that the District Court failed to inform
Eckert of at least three of the required advisements.
Accordingly, the record does not demonstrate that Eckert's waiver
of his right to testify was knowing, intelligent, and voluntary.
Nor does the record indicate what Eckert might have averred had
he testified. Therefore, we cannot conclude that the District
Court's error was harmless.
(2) We reject Eckert's argument that there was
insufficient evidence to convict him of OVUII pursuant to HRS
§ 291E-61(a)(1). Honolulu Police Department (HPD) Officer Jordan
Cho (Officer Cho) testified, inter alia, that he detected a "very
strong scent of an alcoholic beverage" coming from Eckert's
breath and Eckert was unsteady on his feet. Officer Cho noticed
that Eckert had red, glassy eyes, and slurred speech, and Eckert
looked like he might fall over if he stood up from the wall he
was sitting on. HPD Officer Jared Luke (Officer Luke) testified
that he observed Eckert's glassy, watery eyes, and the smell of
an alcoholic beverage from ten feet away from Eckert. Officer
Luke also observed that Eckert's face was flushed and he had a
very slurred manner of speech. Officer Luke faintly detected the
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smell of the alcoholic beverage in his vehicle as he transported
Eckert to the police station.
The witness who observed Eckert crash his vehicle into
a parked vehicle testified that after the initial collision,
Eckert continued to press on the gas for a period of time, and
then attempted to unsuccessfully reverse his vehicle, but the two
vehicles were stuck together. The witness described Eckert as
swaying, maybe stumbling, as Eckert walked down the street after
the accident. While, as Eckert argues, there were possible
alternative assessments of the evidence, we cannot conclude that
the District Court clearly erred in its assessment of the
evidence presented at trial.
Viewing the evidence and all reasonable inferences
therefrom in the light most favorable to the State, we conclude
that there was substantial evidence to support Eckert's
conviction pursuant to HRS § 291E-61(a)(1). See, e.g., State v.
Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007).
(3) In light of our review of Eckert's first two
points of error, we conclude that the District Court's Judgment
must be vacated and this case remanded for a new trial.
Accordingly, we need not reach the issue of the District Court's
failure to personally address Eckert regarding Eckert's right to
pre-sentence allocution, which the State concedes constituted
plain error.
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For these reasons, the District Court's June 29, 2021
Judgment is vacated, and this case is remanded for a new trial.
DATED: Honolulu, Hawai#i, April 29, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Henry P. Ting, Chief Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.
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