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Hawaii Supreme Court Vacates Conviction Because Defendant’s Waiver of Right to Testify Deficient Under State’s Tachibana Colloquy Requirement

by David Reutter

The Supreme Court of Hawaii reversed a DUI conviction because the trial court failed to determine whether the defendant’s “waiver of the right to testify, was voluntarily, intelligently, and knowingly made.”

Before the Supreme Court was the certiorari petition of Ritalynn Moss Celestine. She was arrested on February 24, 2013, after a breathalyzer test revealed a .098 blood-alcohol level. Celestine pleaded not guilty to a charge of operating a vehicle under the influence of an intoxicant. Her case proceeded to a bench trial at which she was found guilty.

On appeal, Celestine argued it was an error to deny her motion to dismiss the breathalyzer test, and the district court violated her constitutional right not to testify when it failed to conduct a proper Tachibana colloquy. The Intermediate Court of Appeals affirmed the conviction.

In the Supreme Court, only the right not to testify issue was at issue.

The Court explained that under Hawaii law the fundamental right to testify (and not testify) is protected by safeguards established by the Hawaii Supreme Court in Tachibana v. State, 900 P.2d 1293 (Haw. 1995). According to the Court, “the trial court must advise the defendant of the right to testify and must obtain on-the-record waiver of this right.” The so-called Tachibana colloquy includes: (1) informing the defendant of the fundamental principles associated with the right to testify and not testify and (2) requiring “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.’”

According to the Court, the constitutional right to testify or not 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.”

The Supreme Court concluded that the Tachibana colloquy in this case was deficient with respect to the second component. The trial court failed to engage Celestine in a true exchange as required by the second component of the Tachibana colloquy. The Court determined that the trial court merely provided the advisement of the fundamental principles of the right to and not to testify, but it failed to ascertain whether Celestine actually understood the principles articulated in the advisement.

That is, the trial court advised “you’ll have an opportunity to testify or remain silent.” The court added that guilt cannot be inferred by remaining silent and that remaining silent is the invocation of her Fifth Amendment right against self-incrimination. The court asked if she understood, and she replied, “Yes, sir.” But that was the extent of the court’s inquiry into whether Celestine actually understood the fundamental principles associated with the right to testify or not testify. That basic exchange occurred twice during the trial.

Based on the record of the verbal exchanges between the trial court and Celestine, the Supreme Court ruled that the trial court “did not engage in sufficient verbal exchange with Celestine to ascertain whether her waiver of the right to testify was based on her understanding of the principles related….”  

The Court then turned to the issue of whether the deficient Tachibana colloquy amounted to harmless error. Upon a determination of a violation of the constitutional right to testify is established, the State then has the burden of proving that the violation was harmless beyond a reasonable doubt. The standard is whether there is a reasonable possibility that the error may have contributed to the conviction. In this case, the Court explained that “it is not knowable whether Celestine’s testimony, had she given it, could have established reasonable doubt” as to her guilt. Thus, the Court ruled that “we cannot conclude that the district court’s error was harmless….”

Accordingly, the Supreme Court vacated Celestine’s conviction and remanded the case to the trial court for further proceedings. See: State v. Celestine, 415 P.3d 907 (Haw. 2018).


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State v. Celestine



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