Pretrial Colloquy Must Include Notice that Right NOT to Testify Cannot be Used Against Defendant

State v. Monteil (HSC December 23, 2014)

Background. James Monteil was charged with one count of prostitution. HRS § 712-1200(1). He pleaded not guilty. At the start of the bench trial, the district court judge engaged in a colloquy about his rights. The court asked Monteil if he understood that no one could force him to testify, that no one could force him to present evidence, that the State had to prove its case beyond a reasonable doubt, that if he did wish to testify, he’d have to testify under oath and be subjected to cross-examination by the prosecutor, and that he could wait to decide to testify until after the State finished presenting its case. Monteil said he understood these rights. The trial court did not inform Monteil that if he did not testify, his silence could not be used against him in deciding the case.

At trial, HPD Sgt. Chad Taniyama testified that he posted an ad on “backpage.com” entitled “ExOtIC BeAuTy AwAiTs You ToDaY.” Here’s the ad:

Hey fellas my name is SiN.

I am here for a short visit, take advantage while you can.

I’m proof that amazing beauty comes in small packages. I’m

5’ with race car curves and eager to make your dreams come

true. Your imagination is our only limit. 100% REAL!! I

guarantee you won’t want to say goodbye.

420 Friendly.

Send me a message at sinsplayground@gmail.com to set up an

appointment.

Sgt. Taniyama testified that he received an email from Monteil and had an email exchange as “SiN.” They made arrangements to meet in Kona. Sgt. Taniyama informed Monteil that it would cost $300 for “GFE experience for an hour or two” and made arrangements at a hotel in Kona. On the day of the arranged time and place, Monteil showed up and met with Officer Sharon Yoon, who was dressed up “as a prostitute.” Monteil went inside the room and Officer Yoon said she was “gonna get ready.” She left the room and other officers came in. They arrested Monteil and he had $300 cash on his person. Sgt. Taniyama explained that “GFE” stood for “girlfriend experience,” which according to the officer, meant sexual intercourse without contraceptives. There was no express evidence that Monteil came into the room to have sex.

Monteil took the stand without further colloquy. He testified that he had no intention of having sex, but was looking for an escort to take to dinner and have a drink. He said that he thought “GFE” meant “good-faith estimate” or “good fun everywhere experience,” which, according to him, was a common term in the hotel industry. The district court found Monteil guilty and sentenced him to a $500 fine. He appealed and the ICA affirmed.

Sufficiency of Evidence. Evidence is sufficient to sustain the verdict when “there is ‘substantial evidence’ to support the conclusion of the trier of fact.” State v. Matavale, 115 Hawaii 149, 157-58, 166 P.3d 322, 330-31 (2007). Substantial evidence is “credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” Id. at 158, 166 P.3d at 331.

A person commits the offense of prostitution if he or she “pays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct.” HRS § 712-1200(1)(b). Here the crux of the issue came down to payment in exchange for sexual conduct. Both Sgt. Taniyama and Monteil had different definitions of “GFE experience.” The district court relied on the officer’s definition over Monteil’s. That was enough for the HSC to affirm the ICA’s conclusion that there had been sufficient evidence to convict Monteil of the offense of prostitution.

The Pre-Trial Colloquy Must Include Notice that Not Testifying Cannot be Used Against Defendant. Just as the defendant has the right to testify at trial, he or she also has the right to not testify. State v. Silva, 78 Hawaii 115, 124, 890 P.2d 702, 711 (App. 1995). This was well established in Hawaii long before Statehood too. King v. McGiffin, 7 Haw. 104, 114 (Haw. King. 1887) (prosecutor’s comment on defendant’s failure to testify was “highly improper”). Modern-day rules of evidence also prohibit any negative inference to be drawn from the defendant’s refusal to testify. HRE Rule 513(a). In order to ensure that this right is respected, the trial court must engage in an open colloquy with the defendant that “he or she has the right not to testify and that if he or she does not testify then the jury can be instructed about that right.” Tachibana v. State, 79 Hawaii 226, 236 n. 7, 900 P.2d 1293, 1303 n. 7 (1995). The colloquy is required only when the defendant does not testify.

The HSC held that “in order to more fully protect the right not to testify under the Hawaii Constitution, the trial courts when informing the defendant of the right not to testify during the pretrial advisement must also advise the defendant that the exercise of this right may not be used by the fact finder to decide the case.” However, the HSC limited the effectiveness to trials starting after the date of this opinion.