State v. Hamby ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-MAR-2021
07:45 AM
Dkt. 59 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
DENEANE M. HAMBY, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTA-19-00046)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Deneane M. Hamby (Hamby) appeals
from the Judgment and Notice of Entry of Judgment, filed on June
5, 2019, in the District Court of the Second Circuit, Wailuku
Division (district court).1
After a bench trial, the district court convicted Hamby
of operating a vehicle under the influence of an intoxicant
(OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-
61(a)(1) (Supp 2019).2
1
The Honorable Kirstin M. Hamman presided.
2
HRS § 291E-61(a)(1) states, in relevant part:
(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[.]
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Hamby claims the district court failed to
conduct an adequate Tachibana colloquy.
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
affirm.
The validity of a defendant's waiver in a criminal case
of the right to testify is a question of constitutional law
reviewed by this court under the right/wrong standard. State v.
Celestine, 142 Hawai#i 165, 169, 415 P.3d 907, 911 (2018).
The constitutional right to testify is violated
when the Tachibana colloquy is inadequate to provide
an "objective basis" for finding the defendant
"knowingly, intelligently, and voluntarily"
relinquished his or her right to testify. 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.
Id. at 171, 415 P.3d at 913 (internal citations omitted).
In this case, the district court advised Hamby pre-
trial of her rights to testify and not testify, which Hamby does
not challenge. Rather, Hamby challenges the following colloquy:
[DEFENSE COUNSEL]: Um, we don't have any witnesses.
Defense rests.
I know that you have to colloquy my client about her
right to testify.
THE COURT: Right. All right.
So, Ms. Hamby, I have some questions for you.
THE DEFENDANT: Okay.
THE COURT: As we discussed, ah, prior to the start of
the trial, you do have a constitutional right to
testify in your own defense. Do you understand?
THE DEFENDANT: Yes.
THE COURT: And although you should consult with your
lawyer 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?
THE DEFENDANT: Yes.
THE COURT: All right. If you decide to testify, the
prosecutor will be allowed to cross-examine you. Do
you understand?
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THE DEFENDANT: Yes.
THE COURT: All right. And you also have the
constitutional right not to testify and to remain
silent. Do you understand?
THE DEFENDANT: Yes.
THE COURT: If you choose not to testify the Court can
not and will not hold your silence against you in
deciding your case. Do you understand?
THE DEFENDANT: Yes.
THE COURT: All right. And again, you should consult
with your lawyer regarding the decision not to
testify, but the decision not to testify and to remain
silent is your decision and nobody can force you to
testify. Do you understand?
THE DEFENDANT: Yes.
THE COURT: All right. Do you have any questions?
THE DEFENDANT: Um, I don't have any questions. I just
have one comment. Ah, you know, in regards to my
walking, if you can --
THE COURT: So, I -- I'm asking if you have any
questions about –
THE DEFENDANT: No. No.
THE COURT: It sounds like you're trying to tell me
something about the case, ah, but your attorney has
told me that you wish, ah, to remain silent.
THE DEFENDANT: Okay.
THE COURT: So, but it is your decision if you wish to
testify. Um, it's your decision to make with in --
consultation with your attorney. But ultimately it's
your decision. So have you made a decision about
whether you will testify or not?
THE DEFENDANT: I don't -- not going to testify.
THE COURT: All right. Is anybody, um, forcing you to
not testify or coercing you or promising you anything
to not testify?
THE DEFENDANT: No.
THE COURT: All right. The Court will find that the
defendant has knowingly, intelligently, and
voluntarily waived the right not to testify and to
remain silent. Okay.
(a) Hamby's argument that her right to testify was
violated because the district court failed to obtain a waiver of
her right to testify immediately before she rested her case lacks
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merit in this case. In Tachibana, the Hawai#i Supreme Court
stated that the ideal time for a court to conduct the Tachibana
colloquy in a jury trial is immediately prior to the close of the
defendant's case, because of the potential prejudice to the
defendant if the colloquy is conducted after the defense rests
and the defendant then asserts a right to testify. Tachibana v.
State, 79 Hawai#i 226, 237, 900 P.2d 1293, 1304 (1995). Even
then, the supreme court noted:
If the trial court is unable to conduct the colloquy at that
time, however, such failure will not necessarily constitute
reversible error. If a colloquy is thereafter conducted and
the defendant's waiver of his or her right to testify
appears on the record, such waiver will be deemed valid
unless the defendant can prove otherwise by a preponderance
of the evidence.
Id. In this case, Hamby was tried in a bench trial. Hamby
presents no basis suggesting a similar potential for prejudice in
a bench trial and presents no evidence of actual prejudice in
this case. Furthermore, the supreme court noted in Tachibana:
Of course, the trial court judge cannot independently
foresee when the defense is on the verge of resting and
conduct the colloquy at that precise moment. Consequently,
the trial courts will require the cooperation of defense
counsel to enable them to conduct the colloquy immediately
prior to the close of the defendant's case.
Id. at 237 n.9, 900 P.2d at 1304 n.9. Here, immediately after
the district court ruled on a motion for judgment of acquittal,
defense counsel stated the defense had no witnesses and the
defense rests. The district court immediately thereafter
initiated the Tachibana colloquy.
Given the circumstances in this case, we conclude
Hamby's right to testify was not violated based on when the
Tachibana colloquy occurred.
(b) Hamby argues that her waiver of the right to
testify was invalid because the district court found that she
waived her right "not to testify" but failed to find she waived
her right "to testify."
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The district court's finding appears inconsistent with
the record.3 Nonetheless, a reviewing court is not bound by the
trial court's finding of a valid waiver, but by the record.
Appellate review of the sufficiency of the
Tachibana colloquy is necessarily based on a cold
record. We are tasked with scrutinizing the language
used by both the court and the defendant to assess
whether a defendant knowingly, intelligently, and
voluntarily waived his or her right to testify. That
task cannot be accomplished were we to defer to the
trial court's apparent assessment of the defendant's
understanding whenever the express language on the
record leaves us with any doubt about the validity of
the colloquy and/or the defendant's waiver.
State v. Pomroy, 132 Hawai#i 85, 93 n.7, 319 P.3d 1093, 1101 n.7
(2014) (emphasis added).
Here, the record shows that Hamby knowingly,
intelligently, and voluntarily waive her right to testify.
There are two components of a Tachibana colloquy. The
first is informing the defendant of fundamental principles
pertaining to the right to testify and the right not to testify,
which should consist of the following:
that he or she has a right to testify, that if he or
she wants to testify that no one can prevent him or
her from doing so, and that if he or she testifies the
prosecution will be allowed to cross-examine him or
her. In connection with the privilege against
self-incrimination, the defendant should also be
advised that he or she has a right not to testify and
that if he or she does not testify then the jury can
be instructed about that right.
Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7 (citations
and brackets omitted).
The second component involves the trial court engaging
in a "true 'colloquy' with the defendant," which "consists of 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 (citations and quotation marks omitted) (emphasis
3
The district court stated "that the defendant has knowingly,
intelligently, and voluntarily waived the right not to testify and to remain
silent," but did not state that the defendant waived the right to testify.
The statement appears to be in error because Hamby decided not to testify.
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in original). The "trial court [should] engage in a verbal
exchange with the defendant at least twice during the colloquy in
order to ascertain the defendant's understanding of significant
propositions in the advisement." Id. (citation and quotation
marks omitted).
Here, the district court advised Hamby that: she had
the right to testify and the right to not testify; no one can
prevent her from testifying if she wants to or force her to
testify if she does not want to; the prosecution will be allowed
to cross-examine her if she testifies; if she does not testify,
then the district court cannot consider that against her in
deciding her case. The district court gave the first advisement
prior to trial and gave the second advisement immediately after
the defense rested, and Hamby stated she would not be testifying.
During each advisement, the district court asked Hamby several
times whether she understood her rights, and Hamby unequivocally
indicated that she did. Thus, the district court's colloquy was
adequate to indicate that Hamby knowingly, intelligently, and
voluntarily waived her right to testify.
(c) Hamby argues that her waiver was nonetheless
invalid because the district court failed to suspend the colloquy
when she indicated an intent to speak so that she and her counsel
could resolve the discrepancy. This argument lacks merit, as
Hamby's post-colloquy comments do not reflect doubt or
uncertainty about her right-to-testify. Cf. Pomroy, 132 Hawai#i
at 93, 319 P.3d at 1101 (finding the waiver to be invalid because
the defendant repeatedly expressed doubt and uncertainty over
what the trial court was telling him regarding his right-to-
testify). Hamby did not express any doubt or uncertainty about
her rights. Hamby clearly stated: "I don't have any questions, I
just have one comment. Ah, you know, in regards to my walking,
if you can --"4 That Hamby wanted to tell the district court
4
In this case, Officer Justin Reiner testified that he stopped Hamby’s
vehicle after observing it swerve and cross traffic lanes several times. He
also conducted a field sobriety test, during which Hamby stumbled twice.
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something about the case does not mean that she wanted to testify
about it, or that she had any confusion, doubt, or uncertainty
about her rights regarding testimony. If anything, Hamby's
response confirmed her understanding that if she wanted to bring
any additional facts into evidence, it would have to be in the
form of testimony, and that she did not want to testify. After
Hamby's comment, the district court told Hamby the decision to
testify was her decision to make in consultation with her
attorney. Thereafter, Hamby told the court she was not going to
testify.
Under the right/wrong standard, the totality of the
circumstances indicate that Hamby knowingly, intelligently, and
voluntarily waived her right to testify.
Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment, filed on June 5, 2019, in the
District Court of the Second Circuit, Wailuku Division, is
affirmed.
DATED: Honolulu, Hawai#i, March 5, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
William H. Jameson, Jr.,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Gerald K. Enriques, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee.
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