Go Ahead and Testify. No one can stop you.

State v. Eduwensuyi (HSC January 18, 2018)

Background. Benjamin Eduwensuyi was charged with operating under the influence of an intoxicant. He had a bench trial. At trial, before the presentation of evidence, the district court advised Eduwensuyi about testifying. The judge told him that he had “to advise you that you have a right to testify if you choose to do so.” Eduwensuyi said, “yes, your honor.” Then the judge said this:

And you also have a right not to testify. That’s up to you. I’ll question you further toward the end of the trial as to whether or not you want to waive either of these rights, to make sure that you’ve been fully informed of your rights and to make sure that any decision you make is your decision, it’s voluntary, okay. So your attorney can give you advice about whether or not you should or should not testify, but ultimately, it’s your decision. Do you understand that?

Eduwensuyi said, “yes.” Then the prosecution presented evidence. The prosecution called a single witness, a police officer, who testified that he stopped Eduwensuyi for traffic infractions, suspected that he was under the influence of an intoxicant, and then ordered him out of the vehicle. Once out, he was dragging his feet when walking and swaying when standing. The prosecution rested after that.

Eduwensuyi’s lawyer told the judge the defense will not be presenting any evidence. The judge questioned Eduwensuyi to ensure that he had the right to testify; that if he did testify, he would be cross-examined by the prosecution; that he had to the right to not testify; and if he did not testify the court would not hold it against him. Eduwensuyi—after conferring with his lawyer—told the court he would not testify. The court found him guilty and sentenced him. He appealed. The ICA affirmed.

The Right to Testify and Protecting that Right Requires “the Ultimate Colloquy.” The right to testify in one’s own defense is guaranteed by the Hawaii Constitution and the Fifth Amendment to the federal constitution. Haw. Const. Art. I, Sec. 5, 10, and 14; U.S. Const. Am. V. State v. Pomroy, 132 Hawaii 85, 91, 319 P.3d 1093, 1099 (2014). Its counterpart—the right to not testify—is equally guaranteed. State v. Monteil, 134 Hawaii 361, 369, 341 P.3d 567, 575 (2014).

And so twenty years ago, the Hawaii Supreme Court, required trial courts to have an on-the-record colloquy to protect either right:

[W]e hold that in order to protect the right to testify under the Hawaii Constitution, trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify.

Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293, 1303 (1995). The defendant’s right to testify is violated when the court’s colloquy is inadequate and does not provide an “objective basis” in finding a knowing, intelligent, and voluntary waiver. State v. Han, 130 Hawaii 83, 91, 306 P.3d 128, 136 (2013).

Trial Courts must Advise the Defendant that no one can Prevent the Defendant from Testifying. The trial court must advise the defendant that no one can prevent him or her from testifying at trial. Tachibana, 79 Hawaii at 236 n. 7, 900 P.2d at 1303 n. 7. The HSC noted that the omission of this part of the colloquy was precisely the problem in State v. Pomroy, 132 Hawaii at 92, 319 P.3d at 1100. Given that the waiver of the right to testify must be voluntary, the failure to include the part about no one being able to prevent the Defendant from testifying rendered Eduwensuyi’s colloquy defective.

The Deficient Colloquy is not Harmless. “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.” Tachibana, 79 Hawaii at 240, 900 P.2d at 1307. Under that standard, the court must assess “whether there is a reasonable possibility that error might have contributed to [the] conviction.” State v. Han, 130 Hawaii at 93, 306 P.3d at 138.

The HSC’s application of the rule here was very brief. “Had Eduwensuyi testified, he may have been able to contest the State’s case and shed light on whether he operated a vehicle under the influence of an intoxicant[.]” It also noted that it is impossible to conclude that violating Eduwensuyi’s right to testify was harmless. Thus, the conviction had to be vacated.

A Rare Point: Confessions of Error may Require Deference. The HSC took up a somewhat obscure point of appellate procedure. In this case, the prosecution conceded error or, as it used to be called, confessed error. The HSC observed that although it is not binding on the appellate court, a prosecutor’s confession of error is “entitled to great weight.” Territory v. Kogami, 37 Haw. 174, 175 (Terr. 1945). Here it looked like the ICA did not give “due consideration” to the prosecution’s confession of error.

So how much “weight” must be given? In a footnote, the HSC announced that the level of deference depends on the issue presented. For example in Kogami the issue hinged on the sufficiency of evidence and deference was warranted. Interpretations of law, however, afford no deference. Orloff v. Willoughby, 345 U.S. 83, 87 (1953).

Oddly enough, the HSC dodged the issue entirely and stated that there was no need to address the level of deference required by the ICA due to the manifest deficiency of the Tachibana colloquy and the ICA’s failure to acknowledge the confession of error.