State v. McClary ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JUN-2022
07:50 AM
Dkt. 80 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
BRANDON J. McCLARY, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-19-01870)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and Nakasone, JJ.)
Defendant-Appellant Brandon J. McClary (McClary)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment (Judgment), entered on March 6, 2020, in the
District Court of the First Circuit, Honolulu Division (District
Court).1/ Following a bench trial, McClary 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/
On appeal, McClary contends that: (1) the District
Court conducted defective pre-trial and trial advisements of
1/
The Honorable Randal I. Shintani presided.
2/
HRS § 291E-61(a)(1) provides:
(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[.]
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McClary's right to testify, by failing to use the proper language
to adequately advise McClary that he had a constitutional right
to testify at trial; (2) the ultimate Tachibana3/ colloquy was
also inadequate because the District Court failed to ask McClary
whether anyone was forcing him not to testify; and (3) there was
no substantial evidence to support the OVUII conviction, because
the State failed to prove that McClary operated a vehicle under
the influence of alcohol "in an amount sufficient to impair [his]
normal mental faculties or ability to care for [himself] and
guard against casualty[.]" HRS § 291E-61(a)(1).
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 McClary's points of error as follows, and vacate the
Judgment:
(1) and (2) McClary first contends that the District
Court violated Tachibana by not adequately informing him of his
right to testify. McClary argues that "the District Court used
the following phrases of lesser gravity of importance, to wit,
that [McClary] has the 'option of testifying,' that it is 'your
final decision[,'] that 'you make that on your own what you think
is best for you,' and that 'no one can force you not to
testify.'" McClary "submits that none of the phrases used by the
District Court are capable of the same connotation of value and
desirability as the word 'right' or the phrase 'right to
testify[.]'" McClary further contends that the ultimate colloquy
was inadequate because the District Court did not ask McClary
whether anyone was forcing him not to testify.
In State v. Martin, 146 Hawai#i 365, 463 P.3d 1022(2020), the Hawai#i Supreme Court summarized the relevant case
law as follows:
Our law protects both the right to testify and the
right not to testify. State v. Celestine, 142 Hawai #i 165,
169, 415 P.3d 907, 911 (2018). Tachibana v. State, 79
Hawai#i 226, 900 P.2d 1293 (1995), established the
requirement that when a defendant in a criminal case
3/
Tachibana v. State, 79 Hawai#i 226, 236 n.7, 900 P.2d 1293, 1303
n.7 (1995).
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indicates an intention not to testify, the trial court must
advise the defendant of the right to testify and must obtain
an on-the-record waiver of the right. 79 Hawai #i at 236,
900 P.2d at 1303. We stated that this advisement should
consist of informing the defendant (1) that they have a
right to testify, (2) that if they want to testify, no one
can prevent them from doing so, and (3) that if they
testify, the prosecution will be allowed to cross-examine
them. 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. We also
stated that in connection with the privilege against
self-incrimination, the defendant should also be advised (4)
that they have a right not to testify and (5) that if they
do not testify, then the jury can be instructed about that
right. Id. (citations omitted). In a bench trial,
defendants must be advised that if they exercise their right
not to testify, no inference of guilt may be drawn for
exercising this right, i.e., that a decision not to testify
cannot be used against a defendant by the judge in deciding
the case. State v. Monteil, 134 Hawai#i 361, 371-72, 341
P.3d 567, 577-78 (2014).
After Tachibana, we also held that a second component
of the Tachibana colloquy involves the court engaging in a
true "colloquy" with the defendant. Celestine, 142 Hawai #i
at 170, 415 P.3d at 912, citing State v. Han, 130 Hawai #i
83, 90-91, 306 P.3d 128, 135-36 (2013). This requires "a
verbal exchange between the judge and the defendant 'in
which the judge ascertains the defendant's understanding of
the proceedings and of the defendant's rights.'" Celestine,
142 Hawai#i at 170, 415 P.3d at 912 (citing Han, 130 Hawai #i
at 90, 306 P.3d at 135 (emphasis omitted)).
. . . .
A defendant's right to testify is violated when the
colloquy does not establish "an objective basis for finding
that the defendant knowingly, intelligently, and voluntarily
gave up" their right to testify. Han, 130 Hawai #i at 91,
306 P.3d at 136. Courts look to the totality of the facts
and circumstances to determine whether a waiver of the right
to testify was voluntarily and intelligently made. 130
Hawai#i at 89, 306 P.3d at 134.
Id. at 378-79, 463 P.3d at 1035-36 (footnotes and brackets
omitted).
The supreme court also has explained that "[i]n
conducting the colloquy, the trial court must be careful not to
influence the defendant's decision whether or not to testify
. . . ." Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7.
Relatedly, "the court's advisory to the defendant must maintain
an 'even balance' between a defendant's right to testify and the
right not to testify." Monteil, 134 Hawai#i at 370, 341 P.3d at
576 (citing State v. Lewis, 94 Hawai#i 292, 295, 12 P.3d 1233,
1236 (2000)).
Additionally, in Lewis, the supreme court adopted a
prospective requirement that, "prior to the start of trial, trial
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courts must '(1) inform the defendant of his or her personal
right to testify or not to testify and (2) alert the defendant
that if he or she 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.'"
Monteil, 134 Hawai#i at 371, 341 P.3d at 577 (quoting Lewis, 94
Hawai#i at 297, 12 P.3d at 1238).
Here, prior to the start of trial on January 15, 2020,
the District Court advised McClary as follows:
Mr. McClary, also at some point in your proceeding
. . . you will make a decision on whether to testify or not
testify. Whether you testify or not is your decision. You
make the final decision. You may consult with [defense
counsel] about his thoughts about whether to testify or not,
however, you make the final call on whether to testify or
not.
If you decide not to testify and remain silent, you
invoke your right to remain silent, and the court cannot
consider in any way your decision not to testify. The court
can base its decision only on evidence presented by the
State and/or any other evidence presented by your attorney
in your defense other than your own testimony.
If you decide to testify, you'll be placed under oath,
subject to questioning by your attorney as well as
questioning or cross-examination by the prosecutor. And
anything you testify to the court can consider in deciding
the outcome of this case.
No one can force you to testify. No one can force you
not to testify. It is your voluntary own decision whether
to do so or not. Do you understand the choice you have?
[McClary]: Yes, Your Honor.
THE COURT: Okay. And I'll address you at some point
later. You may have a seat. Thank you.
(Emphasis added.)
On January 28, 2020, trial continued and the District
Court advised McClary as follows:
Mr. McClary, at some point in your trial you will make
a decision whether to testify or not testify. Whether you
testify or not, that's your own decision. You make the
final decision on whether to testify or not.
You may consult with your attorney . . . on his
thoughts about whether to testify or not, however, you make
the final decision. Do you understand?
[McClary]: Yes, Your Honor.
THE COURT: If you decide not to testify, you invoke
what is called the right to remain silent and the court
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cannot consider in any way in determining the outcome of
this case your invocation of this right. Okay?
I can base my decision only on the evidence presented
by the State and/or any other evidence presented by your
attorney other than your own testimony. Do you understand?
[McClary]: Yes, Your Honor.
THE COURT: If you decide to testify, you'll be placed
under oath, subject to questioning by your attorney and
questioning or cross-examination by the prosecutor. And
anything you testify to, the court can consider in deciding
the outcome of this case. And you've observed the officer
testifying so you understand what testifying means. Is that
correct?
[McClary]: Yes.
THE COURT: Okay. No one can force you to testify, no
one can force you not to testify. That is your own decision
to be made as you feel it's in your best interest. Do you
understand your choices?
[McClary]: Yes, Your Honor.
THE COURT: Okay. Thank you.
(Emphasis added.)
After the State rested, defense counsel indicated his
understanding that McClary did not wish to testify, and the
District Court engaged in the following colloquy with McClary:
THE COURT: So, Mr. McClary, this is the point in your
proceedings where as I had mentioned to you earlier you will
make a decision whether to testify or not testify. Your
attorney indicates you may have made a decision regarding
that.
You have the option of not testifying, invoking your
right to remain silent. And as explained earlier, this is a
right you have to remain silent. And if you invoke the
right to remain silent, the court cannot consider in any way
your exercise of this right to remain silent. I can only
base my decision based on the evidence presented, which is
Officer Ah Nee's testimony in your case. Do you understand
that option?
[McClary]: Yes, Your Honor.
THE COURT: Okay. You also have the option of
testifying. And as you observed Officer Ah Nee, you'll be
placed under oath, subject to questioning by your attorney
as well as questioning or cross-examination by the
prosecutor. And anything you testify to, the court can
consider in deciding the outcome of this case. Do you
understand?
[McClary]: Yes, Your Honor.
THE COURT: Okay. Now, knowing -- while you may
consult with [defense counsel] on his thoughts on whether to
testify or not, whether you testify or not is your final
decision. You make that on your own what you think is best
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for you. No one can force you to testify. No one can force
you not to testify. Do you understand?
[McClary]: Yes.
THE COURT: Okay. Do you have any questions about
your choices?
[McClary]: No, Your Honor.
THE COURT: Okay. And have you made a decision?
[McClary]: Yes, Your Honor.
THE COURT: And what is that decision?
[McClary]: I do not wish to testify.
THE COURT: Okay. And this is your choice?
[McClary]: Yes.
THE COURT: Okay. The court's satisfied.
(Emphasis added.)
As the record reveals, the District Court did not
directly inform McClary that he had a right to testify during any
of the three advisements that were given. Instead, the District
Court framed the right to testify as an "option" or "decision."
In contrast, the court repeatedly characterized a decision not to
testify as invoking the right to remain silent. This disparity
in describing the rights at issue did not "maintain an 'even
balance' between [McClary's] right to testify and the right not
to testify." Monteil, 134 Hawai#i at 370, 341 P.3d at 576; see
id. ("Expressly recognizing the importance of a balanced
advisement, Tachibana provides the trial courts with specific
guidance for the 'ultimate' colloquy to ensure defendants are
informed of their right to testify and not to testify, without
influencing this decision."); see also State v. Torres, 144
Hawai#i 282, 284, 439 P.3d 234, 236 (2019) ("Our precedents also
firmly establish that a defendant's right to testify is of equal
constitutional stature to the defendant's corresponding right to
refrain from testifying."); State v. Philling, No. CAAP-
XX-XXXXXXX, 2019 WL 6790773, at *3 (Haw. App. Dec. 12, 2019)
(SDO) ("[A]lthough the District Court used the phrase 'if you
elect to testify' in various queries, the court did not inform
[the defendant] that he had a right to testify, as is
required."). We further note that in the ultimate colloquy, the
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District Court did not specifically ask McClary whether anyone
was forcing him not to testify. See Celestine, 142 Hawai#i at
170-71, 415 P.3d at 912-13 ("As part of [the ultimate colloquy],
the trial court elicits responses as to whether the defendant
intends to not testify, whether anyone is forcing the defendant
not to testify, and whether the decision to not testify is the
defendant's." (citing Han, 130 Hawai#i at 91, 306 P.3d at 136)).
On this record, based on the totality of the facts and
circumstances, we cannot conclude that McClary's waiver of his
right to testify was knowingly, intelligently, and voluntarily
made.
"Once a violation of the constitutional right to
testify is established, the conviction must be vacated unless the
State can prove that the violation was harmless beyond a
reasonable doubt." State v. Pomroy, 132 Hawai#i 85, 94, 319 P.3d
1093, 1102 (2014) (quoting Tachibana, 79 Hawai#i at 240, 900 P.2d
at 1307). Here, the record does not contain any indication of
what McClary would have said if he had testified. See State v.
Hoang, 94 Hawai#i 271, 279, 12 P.3d 371, 379 (App. 2000) ("In
general, it is inherently difficult, if not impossible, to divine
what effect a violation of the defendant's constitutional right
to testify had on the outcome of any particular case."). Based
on our review of the record, we cannot conclude that the District
Court's deficient colloquy was harmless beyond a reasonable
doubt.
We therefore vacate McClary's OVUII conviction.
(3) McClary also contends that there was no
substantial evidence to support his OVUII conviction, because the
State failed to prove the alcohol impairment element.
We review the sufficiency of the evidence to support a
conviction as follows:
[E]vidence adduced in the trial 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
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evidence to support the requisite findings for conviction,
the trial court will be affirmed.
"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. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007) (brackets omitted) (quoting State v. Batson, 73 Haw. 236,
248-49, 831 P.2d 924, 931 (1992)).
In order to convict McClary of OVUII, the State was
required to prove beyond a reasonable doubt that (1) McClary (2)
operated or assumed actual physical control of a vehicle upon a
public street, road, or highway, while (3) under the influence of
alcohol in an amount sufficient to impair his normal mental
faculties or ability to care for himself and guard against
casualty (the alcohol impairment element). HRS § 291E-61(a)(1).
"'Impair' means to weaken, to lessen in power, to diminish, to
damage, or to make worse by diminishing in some material respect
or otherwise affecting in an injurious manner." HRS § 291E-1.
With respect to the alcohol impairment element, the
State presented evidence at trial that the arresting officer
stopped McClary after observing him driving his vehicle at a high
rate of speed – producing a speed reading of 86 miles per hour on
the officer's handheld lidar device – while passing other
vehicles on the freeway; after the stop, the officer observed
that McClary's eyes were "red, watery, [and] glassy[,]" and
detected the odor of "an alcoholic-type beverage" coming from
McClary; McClary told the officer that "he had been drinking
earlier, but that he felt fine"; and McClary performed poorly on
the standardized field sobriety test (SFST) administered by the
officer. In particular, the arresting officer observed that
during the horizontal gaze nystagmus test, McClary was "swaying a
little bit side to side a couple inches" and had to be reminded
"to keep his head still"; during the walk-and-turn test, McClary
"had a difficult time standing in the instructional stance,"
"broke out of that stance twice," missed touching heel to toe
twice during the first nine steps, appeared to lose his balance
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"a bit" when he started his return, stepped out to the side, and
"missed heal-to-toe towards the end"; during the one-leg-stand
test, when McClary raised his foot, it swayed in a circular
motion, and "[t]owards the end he happened to place his . . .
foot down a couple of times[.]"
McClary argues that his "rate of speed is not of
sufficient probative value because there is zero evidence of the
speed limit[.]" (Capitalization altered.) Although the State
did not elicit direct evidence of the posted speed limit, the
arresting officer did testify that he pulled McClary over for
violating the speed limit and that "th[is] particular type of
speeding is rare." Further, during closing argument, defense
counsel acknowledged that McClary was "going 86 in a 55" and
conceded that "he was speeding." McClary's contention thus lacks
merit.
McClary next argues that his "rate of speed is not of
'sufficient probative value' because there is zero evidence to
reasonably infer that speed is probative of alcohol
impairment[.]" (Capitalization altered.) However, at trial, the
arresting officer explained the facts he considered before
arresting McClary, stating in part:
So the first factor was the operation of the vehicle.
Yes, there was speeding involved, but that particular type
of speeding is rare. And the decision to operate a vehicle
like that is through my training and experience is a -- a
choice that sometimes things can impair that decision. . . .
In finding McClary guilty of OVUII, the District Court "look[ed]
at all the evidence[,]" including "[t]he rate of speed Mr.
McClary was driving on this particular evening[.]" Viewing the
evidence in the light most favorable to the State and recognizing
that "the judge may draw all reasonable and legitimate inferences
and deductions from the evidence," State v. Eastman, 81 Hawai#i
131, 139, 913 P.2d 57, 65 (1996), we cannot conclude that the
District Court unreasonably inferred McClary's alcohol impairment
in part from his "rare" rate of speed. See State v. Hopkins, No.
CAAP-XX-XXXXXXX, 2021 WL 4167382, at *3 (Haw. App. Sept. 14,
2021) (SDO) (concluding that the defendant's driving, including
his speeding 23 miles per hour over the speed limit, combined
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with the arresting officer's observations of the defendant's
physical indicia of intoxication and performance on the SFST,
constituted substantial evidence supporting the OVUII
conviction). McClary's contention is thus without merit.
McClary's remaining arguments regarding the sufficiency
of the evidence involve the credibility of the testifying officer
or the weight of the evidence. We will "not pass upon the trial
judge's decisions with respect to the credibility of witnesses
and the weight of the evidence, because this is the province of
the trial judge." Eastman, 81 Hawai#i at 139, 913 P.2d at 65.
Upon review of the record, and viewing the evidence in
the strongest light for the prosecution, we conclude there was
substantial evidence that McClary operated a vehicle while under
the influence of alcohol in an amount sufficient to impair his
normal mental faculties or ability to care for himself and guard
against casualty. Accordingly, on this record, the evidence was
sufficient to support McClary's OVUII conviction.
For the reasons discussed above, we vacate the Notice
of Entry of Judgment and/or Order and Plea/Judgment, entered on
March 6, 2020, in the District Court of the First Circuit,
Honolulu Division. We remand the case for a new trial and for
further proceedings consistent with this Summary Disposition
Order.
DATED: Honolulu, Hawai#i, June 9, 2022.
On the briefs:
/s/ Katherine G. Leonard
Marcus B. Sierra Presiding Judge
for Defendant-Appellant.
Donn Fudo, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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