Testifying at the Suppression Hearing does not Constitute a Waiver of the Right to Remain Silent at Trial—Even in District Court
State v. Chang (HSC June 28, 2019)
Background. David Yen Hoy Chang was charged with driving while under the influence of an intoxicant. He pleaded not guilty and appeared in the district court. There, the district court was informed that the hearing on the motion to suppress would be consolidated with a bench trial.
The district court began with the motion to suppress. Honolulu Police Department Officer Jared Spiker testified that he pulled Chang over for driving at little after one in the morning without his headlights on and make an unlawful left turn. When he talked to Chang he noticed the odor of alcohol on his breath and saw that his eyes were red, watery, and glassy. His face was flushed; speech slurred. Officer Spiker asked for Chang’s driver’s license, registration, and insurance, which were produced without difficulty or delay. Officer Spiker informed Chang he was pulled over for driving infractions and invited him to participate in standardized field sobriety tests. Chang got out of the vehicle without a problem and testified at that point Chang was no longer “free to leave.”
Chang agreed to participate in the SFSTs, and announced that he had some drinks earlier in the evening. According to Officer Spiker, Chang did not perform the tests as instructed and throughout the tests, Chang was argumentative, interrupted the officer, and repeatedly asked why he had been pulled over. Officer Spiker arrested Chang at that point and at no point advised him of his right to remain silent.
After the officer testified, the district court presided by the Hon. Judge Trish K. Morikawa inquired with the defense if there were any witnesses for the motion. Counsel said that the only witness was Chang. A three-part discussion between the court and the parties took place about the use of Chang’s testimony for purposes of trial. The district court stated that it could not isolate Chang’s testimony for the hearing alone. The district court opined that because the hearing and the trial were consolidated, “I don’t know how—I can’t use [his testimony] for the trial.” The district court stated that whatever Chang testifies to in the hearing would be used against him in the trial. If he were to testify for purposes of the motion, “we’re kind of stuck at that point since we’re consolidating the motiona dnt he trial, so I can’t unhear what I’ve heard.” In other words, it could not be isolated unless the hearing and the trial were bifurcated. The district court then adjourned for a recess.
When everyone was back on the record, the district court tried to rectify the problem:
[J]ust so that we’re clear, if [Chang] wants to testify for the motion to suppress, he has that right,  but I’d have to  bifurcate, instead of consolidating it[.] . . . so he has the right to testify for the motion. I . . . won’t Tachibana him. I can listen to him testify for the motion and then I can rule[.]
. . . .
[I]f you consolidate the testimony of [Officer Spiker], then at that point if you wanted to make any motions, you can make any motions at that point and then [Chang] could decide if he wants to testify for purposes of trial.
The district court engaged in a colloquy with Chang and assured him that if the proceedings were bifurcated and if Chang did testify at the hearing, the court would “take it out of my mind and put it on the side” when it came to trial. Chang ultimately decided not to testify. The district court granted the motion in part by excluding Chang’s statements to Officer Spiker. The evidence about Spiker’s observations were admitted. He was found guilty. Chang appealed. The ICA—Judge Alexa Fujise, Judge Katherine Leonard, and Judge Lawrence Reifurth—affirmed.
The Trouble with Consolidating . . . A hearing on a motion to suppress can be consolidated with a trial as long as both parties agreed to do so and said so on the record. State v. Doyle, 64 Haw. 229, 231 n. 3, 638 P.2d 332, 334 n. 3 (1981) and State v. Thomas, 72 Haw. 48, 54, 805 P.2d 1212, 1214 (1991). While the district court can consolidate the hearing with the trial, it still had to accurately advise Chang about his right to testify in both the hearing and the trial. The HSC held that the advisement here was erroneous and that subsequent attempts to correct the advisement were insufficient.
The defendant’s testimony at a hearing on motion to suppress cannot be used against him or her at the trial:
[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial ont eh issue of guilt unless he makes no objection.
Simmons v. United States, 390 U.S. 377, 3894 (1968). The HSC, therefore, examined the district court’s colloquy on the right to testify. Under the totality of the circumstances in this case, Chang was not adequately informed about his rights. The judgment was vacated and remanded for a new trial.
Consolidation of Hearings and Trials are Pau. A “motion to suppress made before trial shall be determined before trial.” Hawaii Rules of Penal Procedure (HRPP) Rule 12(e). A majority of HSC justices—Justices McKenna, Pollack, and Wilson—took issue with the district court practice of consolidating the pretrial hearing with the trial itself. The majority read the rule to mean that trial courts “must rule on a motion to suppress before trial. It is self-evident that, if a motion to suppress is consolidated with a trial, the court cannot rule on such a motion ‘before trial.’”
The majority explained that the rule is there for the prosecution’s benefit. The commentary to the rule states that pretrial motions to suppress must be decided before trial because it gives “the prosecution an opportunity to appeal an adverse ruling prior to trial.” That’s important because the prosecution can only appeal issues outlined in HRS § 641-13. State v. Oshiro, 69 Haw. 438, 441, 746 P.2d 568, 570 (1987). One of those circumstances includes the granting of a motion to suppress evidence. HRS § 641-13(7). If the trial court consolidates the hearing with the trial, erroneously grants the defendant’s motion to suppress, and then acquits the defendant, the prosecution is without recourse. State v. Kalaola, 124 Hawaii 43, 52, 237 P.3d 1109, 1118 (2010) (“double jeopardy presents an absolute bar to tretrial where . . . the defendant ‘has been acquitted’”).
In light of this interpretation, the majority overruled Doyle and Thomas. The new interpretation applies prospectively—that is, after June 28, 2019.
Chief Justice Recktenwald’s Dissent. The CJ and Justice Nakayama disagreed on the majority’s sua sponte overturning of Doyle and Thomas. Neither party in this case objected or even challenged the consolidation below or on appeal. There are numerous practical benefits to consolidation and if the parties wished to do that, they should. While there may be difficulties in advising the defendant about his or her right to testify, the CJ believed that a modified Lewis advisement and Tachibana colloquy would suffice. He disagreed that such drastic measures be taken when no one below raised the issue:
I emphasize, again, that the ability of the district court to consolidate the proceedings was not raised, briefed, or argued by the parties before this court. This court should not change such a well-settled procedure on our accord without being fully informed by those who will be directly affected by that change. Rather than acting sua sponte, I believe a better approach would be to present the issue to the penal rules committee, for consideration of possible amendments to HRPP Rule 12. Under that approach, all interested parties, including the bar and the public, could provide their input.
This appears to not only be a dissent, but an invitation for the HRPP Rules Committee to take up the issue if the need to consolidate is strong enough. Only time will tell.