Courts Need a True Exchange with Defendant

State v. Celestine (HSC April 12, 2018)

Background. Ritalynn Celestine was charged with operating a vehicle while under influence of an intoxicant. Before the start of evidence at trial, the district court addressed Celestine:

Okay. Miss Celestine, to advise you of your right at trial, at some point in time the State will rest, okay, and you’ll have an opportunity to testify or remain silent. Should you choose to remain silent, the Court can infer no guilty because of your silence. Basically, you’ll be invoking your Fifth Amendment right against self-incrimination.

Okay, you understand?

THE DEFENDANT: Yes, sir.

THE COURT: However, if you do wish to testify, you need to be sworn in, you’re also subject to cross-examination by the State’s attorney. Okay?

          Okay. And when the State does rest, okay, I’ll remind you again, okay, I have to finish this even though we’re doing this . . . piecemeal today. All right. Any questions? Okay. Thank you.

At trial, a police officer testified that he saw her driving a car and jumped the curb in to “the planter area.” Celestine was stopped and ordered out of her vehicle. The officer smelled the odor of alcohol on her breath. She had red, glassy eyes, and exhibited the clues of intoxication after agreeing to take three field sobriety tests. She was arrested and taken to the station. Once at the station she was told that if she refused to take a test, she would be subject to up to 30 days jail or a fine of $1,000. She opted for the breath test and blew a 0.098 grams of alcohol per 210 liters of breath.

After the prosecution rested, the district court addressed Celestine again:

          THE COURT: Okay. Just in caution, okay I had explained to you, okay, on the 12th that you had the right to testify and the right to remain silent, okay. They call this your Tachibana rights. It’s based on a case law that the appellate court found that the trial court needed to inform you of your rights, okay. If you chose not to testify, the Court could infer no guilt because of your silence; basically you would be invoking your Fifth Amendment right against self-incrimination. Okay. On the other hand, if you do wish to testify, you need to be sworn in, you also will be subject to cross-examination by the State’s attorney.

          Okay. Your attorney just indicated to the Court that you will not be testifying. Is that correct?

          THE DEFENDANT: Yes, sir.

          THE COURT: Okay. Is anybody forcing you not to testify?

          THE DEFENDANT: No, sir.

          THE COURT: Okay. It’s your own decision?

          THE DEFENDANT: Yes, sir.

          THE COURT: Okay, very good.

After the colloquy, the district court heard Celestine’s motion to suppress, denied it, and found her guilty as charged. She appealed. The ICA affirmed.

The Constitutional Right to Testify must be Voluntarily, Knowingly, and Intelligently Waived on the Record Through a True Colloquy. The right to testify at one’s own trial is constitutionally guaranteed. Haw. Const. Art. I, Sec. 5, 10, and 14 and U.S. Const. Am. V. To protect this fundamental right, the trial court must advise the defendant about the right and establish an on-the-record waiver of this right. Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293, 1303 (1995). A key part of the colloquy is informing the defendant that not only does he or she have the right to testify, but if he or she “wants to testify that no one can prevent him” or her. Id. at 236 n. 7, 900 P.2d at 1303 n. 7.

The constitutional right to testify is violated when the colloquy does not provide an “objective basis” for finding the defendant “knowingly, intelligently, and voluntarily” relinquished his or her right to testify. State v. Han, 130 Hawaii 83, 90, 306 P.3d 128, 135 (2013).

A True Colloquy. The HSC held that the district court did not engage in a true colloquy with Celestine. The HSC chastised the district court for not obtaining responses from Celestine after the prosecution rested. The problem for the HSC was that there was no discussion or exchange between the court and the defendant to “ascertain[] the defendant’s understanding of the proceedings and of the defendant’s rights.” Id. at 90, 306 P.3d at 135.

The HSC also took issue with the way the district court fashioned the question “Your attorney just indicated to the Court that you will not be testifying. Is that correct?” Celestine’s “Yes, sir” answer was ambiguous. It does not show if she was expressing that she did not want to testify or confirming that her attorney had just told the court she was not going to testify. Thus, the colloquy was deficient and in violation of Celestine’s right to testify.

The Violation is not Harmless. The HSC also found the error was not harmless given that there was a reasonable possibility that her testimony could have established reasonable doubt. See Han, 130 Hawaii at 93, 306 P.3d at 138.

Chief Justice Recktenwald’s Dissent. The Chief Justice dissented. The whole point of the Tachibana colloquy is to ensure that defendants do not waive their constitutional right to testify “unwittingly” and it should not be “an end unto itself.” The Chief Justice rejected what he described the majority’s analysis as “formalism.” The Chief Justice also noted that trial courts are in the better position to ascertain the defendant’s ability to understand and the fact that they might not get every word right is not a reason to vacate a conviction. Justice Nakayama joined.