NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-MAR-2021
07:46 AM
Dkt. 42 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
ANTHONY K. PADA, also known as Anthony Keoni Pada,
Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
WAI#ANAE DIVISION
(CASE NO. 1DTA-19-02262)
MEMORANDUM OPINION
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Anthony K. Pada, also known as
Anthony Keoni Pada (Pada), appeals from the Notice of Entry of
Judgment and/or Order and Plea/Judgment (Judgment), entered on
September 16, 2019, in the District Court of the First Circuit,
Wai#anae Division (district court).1/ After a bench trial, the
district court convicted Pada of operating a vehicle under the
influence of an intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2019),2/ and
sentenced him for a first offense pursuant to HRS § 291E-
61(b)(1).
1/
The Honorable William M. Domingo presided.
2/
HRS § 291E-61(a)(1) states, in relevant part:
(a) A person commits the offense of operating a
vehicle under the influence of an intoxicant if the person
operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
mental faculties or ability to care for the
person and guard against casualty[.]
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On appeal, Pada contends that Plaintiff-Appellee State
of Hawai#i (State) violated his right to remain silent under
article I, section 10 of the Hawai#i Constitution by commenting
during trial "that Pada never told [the arresting officer] that
his medication or injuries affected his ability to perform the
[Standardized Field Sobriety Test (SFST)]." Pada asserts this
violation of his constitutional rights was not harmless beyond a
reasonable doubt.
We vacate the Judgment and remand for a new trial, for
the reasons set forth below.
I. Background
At trial, Kekoa Gaspar-Silva (Gaspar-Silva) testified
as follows: On June 21, 2019, at about 5:00 a.m., Gaspar-Silva
was in his house on Kauiki Street in Honolulu when he heard a
loud sound. He walked outside and saw that his car, which was
parked across the street from his house, had been hit; "the
fender was smashed." Gaspar-Silva also saw that Pada's truck
"was down a little bit by [Gaspar-Silva's] neighbor's house."
Pada asked Gaspar-Silva if the damaged car was his, and Gaspar-
Silva said yes. The two men "made sure [they] both had
insurance." Gaspar-Silva called the police while Pada waited by
his truck. Gaspar-Silva had no trouble understanding Pada as
they spoke.
Honolulu Police Department (HPD) Officer Nicholas
Griffin (Officer Griffin) next testified to the following: He
arrived on the scene at 5:13 a.m. and observed a white pickup
truck "with the front driver's side tire missing." He observed
Pada "going through the . . . driver's side of the vehicle" as he
was "looking for the information for his vehicle." Officer
Griffin asked Pada if the vehicle belonged to him. Pada
responded, yes, it did, and also informed Officer Griffin that he
(Pada) had hit Gaspar-Silva's vehicle. While Officer Griffin was
speaking with Pada, Officer Griffin "detected . . . a strong
smell of alcohol coming from [Pada's] breath . . . ." He asked
Pada for his license, registration, and insurance card and did
not recall Pada having any trouble providing that information.
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Officer Griffin spoke to Pada over the course of half an hour but
did not recall that Pada had red, watery eyes or that he (Officer
Griffin) had any trouble understanding Pada. Officer Griffin did
not note that Pada was "slurring his words."
HPD Officer Torey Seminara (Officer Seminara) next
testified as follows: He arrived on the scene, was apprised of
the facts and circumstances by Officer Griffin, and then spoke to
Pada. In response to Officer Seminara's questions, Pada said he
had come from home, which was "two blocks up the street," and had
been looking for parking in the neighborhood. Pada had "no
issue" answering questions and "wasn't slurring." Officer
Seminara detected a "strong odor" of "what [he] believed to be an
alcohol-type beverage" on Pada's breath, but also thought it
possible that "it could have been a different substance[.]" He
observed that Pada's "eyes were red, watery, glassy, bloodshot."
Officer Seminara asked Pada if he would participate in an SFST,
and Pada agreed.
Prior to administering the SFST, Officer Seminara asked
Pada "medical rule-out questions . . . to allow the possibility
of any medical circumstances preventing [Pada] from doing the
[SFST] or possibly interfering with the [SFST]."3/ Pada responded
that he had "a past injury" and received "back surgery for
slipped disks" in 2003 and again in 2008, that he was taking
medications (ibuprofen and tizanidine), and that he was
"prediabetic." Officer Seminara then "made the determination
that [Pada] was fit to do the [SFST]" and proceeded to administer
the tests.
Officer Seminara testified that, at one point during
the horizontal gaze nystagmus test, Pada "stopped following the
stimulus, and he stared straight ahead for a few seconds,"
contrary to instructions. During the walk and turn test, Pada
was "unable to stay in the . . . position of instruction" as he
could "only balance there for a few seconds" and then "went back
to standing normally." As Pada walked, he missed several heel to
toe steps and stepped off the line several times. During the
3/
Pada does not raise any challenge to the medical rule-out
questions.
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one-leg stand test, Pada was unable to hold his foot six inches
above the ground or keep his eyes on the tip of his toe for the
duration of the test, but he did not sway, hop, or use his arms,
and he had no issue following instructions or counting aloud.
Thereafter, Officer Seminara told Pada, "there's an indication
that you might be impaired," to which Pada allegedly responded
"yes, I am." Officer Seminara's police report did not note that
Pada had said he was impaired.
On cross-examination, defense counsel asked Officer
Seminara: if he was "aware that diabetes can cause a symptom
known as ketoacidosis, which can cause odor of alcohol[,]" to
which Officer Seminara responded, "I wasn't aware of that"; if
Pada had told Officer Seminara that he (Pada) had had prior back
surgeries and was taking medication, to which Officer Seminara
responded "yes"; if Officer Seminara knew that one of the
medications, tizanidine, was a muscle relaxer, to which Officer
Seminara responded "no"; and if not knowing the effects that a
muscle relaxer could have on the SFST would "compromise the
test," to which Officer Seminara responded "I don't believe so."
During the State's redirect examination, the following
exchange occurred:
[By Deputy Prosecuting Attorney (DPA)] Q. And when
[Pada] talked about his slipped disk, did he -- did he tell
you or complain of any pain or injuries when you asked him?
[By Officer Seminara] A. No, at no time.
. . . .
Q. Okay. And after the defendant explained that he
took in these medications and that he was prediabetic and
had a slipped disk, why did you continue with the [SFST]?
A. I continued with it because he didn't complain
of any pain, and he didn't make any statements of saying why
he was unable to do the test. I didn't observe any physical
injuries. So I felt like -- I made the determination that
he was fit to do the [SFST].
After the State rested, the defense called Pada, who
testified to the following: At 5:00 a.m. on June 21, 2019, Pada,
who lives on Kauiki Street, was just waking up to move his truck,
which was parked in front of his neighbor's driveway. He gets up
at five in the morning "maybe three times a week" to move his
truck. On the morning at issue, Pada was looking for a parking
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spot on his street, when a cat ran in front of his truck. Pada
swerved to avoid the cat and hit the fender of Gaspar-Silva's
parked car. Pada quickly turned in the other direction, but his
tire caught on Gaspar-Silva's fender, pulling the tire off Pada's
vehicle. The accident occurred probably fifteen minutes after
Pada woke up, after about five hours of sleep. Pada got out of
his truck and went to check if anyone was in the parked car he
had hit. As neighbors came out of their houses, Pada "asked
someone to call the police."
Regarding his medical conditions and medications, Pada
testified that: he is "prediabetic"; he re-injured a slipped
disk in December 2018; he takes ibuprofen and tizanidine, a
muscle relaxer, for the slipped disk; tizanidine can "make you a
little groggy" and he takes it daily at about midnight prior to
bed; he often feels "groggy" when he wakes up at 5 a.m.; he has
an eye condition called "pterygium" that causes a red growth on
the white of his eye; the muscle relaxer he takes could cause him
to be off balance if standing on one foot; and his back injuries
make standing for a long period of time or in an uncomfortable
position difficult for him. Pada further testified that he told
Officer Seminara that he was under a doctor's care; he did not
recall telling Officer Seminara he was impaired; and he drank no
alcohol on the morning of, or the night before, the incident on
June 21, 2019.
The State then cross-examined Pada in the following
exchange:
BY [DPA]:
Q. So, Mr. Pada, did you at any time tell Officer
Seminara that you felt uncomfortable or imbalanced during
the SFST?
A. No, I didn't tell him that.
Q. And why?
A. Because I'm (indiscernible) used to that. It's
not something that I would think that I would have to let
him know.
Q. But didn't he ask you if you had any questions?
A. Yeah, pertaining to the -- the test that he was
giving me, which I completely understood what he was
telling me.
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Q. So couldn't you have asked him that question, if
you had medication, if you were unable to perform the SFST?
A. He did ask me if I had any medication, and I
thought that if he felt that would impair me in any way, he
wouldn't administer it.
. . . .
Q. (BY [DPA]) If you felt that way about being
uncomfortable about asking the question, wouldn't you have
asked Officer Seminara if you did really feel that way?
A. (Indiscernible) I really felt that way. I just
wanted to comply with whatever the officer was telling me to
do.
During its closing argument, the State argued in part:
And in conducting the [SFST], [Officer Seminara] asked
the defendant medical rule-out questions. He did note that
the defendant was under medication, but the defendant didn't
say when he was under these medications. And although he
noted that he did have a slipped disk, he didn't say
anything.
There's a question, do you have any physical defects
or impediments? The defendant said no. At any point of the
[SFST], if he felt uncomfortable or because of the
medication, he could have asked the officer.
Officer Seminara testified that he asked questions.
He -- he gave instructions to the defendant. The defendant
understood any questions. He didn't have any -- anything to
say during the [SFST].
After closing arguments, the district court summarized
the testimony elicited at trial, including the following:
Prior to giving the test, [Officer Seminara] asked Mr.
Pada the medical rule-out questions. At which point, Mr.
Pada stated that he had back surgery for a slipped disk and
was on ibuprofen, and later on, verified by
cross-examination and also the testimony of Mr. Pada, that
it was also a muscle relaxant that he had taken. . . .
. . . .
Officer Seminara did not follow up on the questions as
far as the medication. Mr. Pada did not tell him any
further about when these -- wait, hang on. On
cross-examination, Officer Seminara stated that the prior
back surgery was in 2003 and also 2008.
In going forward with the test, Officer Seminara
testified that he didn't see any reason to discontinue the
test, as he felt the defendant was able to participate and
nothing was going to affect the performance . . . because of
any medical situation.
The district court found Pada guilty of the OVUII
charge. This appeal followed.
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II. Discussion
"[T]he right to remain silent under article I, section
10 of the Hawai#i Constitution attaches at least at the point at
which a person has been seized." State v. Tsujimura, 140 Hawai#i
299, 319, 400 P.3d 500, 520 (2017).
A person is seized if, given the totality of the
circumstances, a reasonable person would have believed that
he or she was not free to leave. Whether a reasonable
person would feel free to leave is determined under an
objective standard that this court reviews de novo. A
person is seized for purposes of article I, section 7 of the
Hawai#i Constitution, when a police officer approaches that
person for the express or implied purpose of investigating
him or her for possible criminal violations and begins to
ask for information.
State v. Weldon, 144 Hawai#i 522, 531-32, 445 P.3d 103, 112-13
(2019) (quoting State v. Tominiko, 126 Hawai#i 68, 77, 266 P.3d
1122, 1131 (2011)); see State v. Kearns, 75 Haw. 558, 566, 867
P.2d 903, 907 (1994).
Here, Pada was seized at least when Officer Seminara
asked him to participate in the SFST, because the purpose of the
request was to determine whether Pada drove his vehicle while
impaired, and given the totality of the circumstances, a
reasonable person in Pada's position would not have felt free to
ignore Officer Seminara's inquiries and walk away. Thus, Pada's
right to remain silent attached at least when he was asked to
participate in the SFST.
To determine whether the State elicited evidence at
trial in violation of Pada's right to remain silent, we apply the
following test:
[W]here the prosecution elicits from a witness information
regarding the defendant's prearrest silence, the test is
whether the prosecutor intended for the information elicited
to imply the defendant's guilt or whether the character of
the information suggests to the factfinder that the
defendant's prearrest silence may be considered as
inferential evidence of the defendant's guilt.
Tsujimura, 140 Hawai#i at 315, 400 P.3d at 516 (clarifying the
test applied in State v. Rodrigues, 113 Hawai#i 41, 49-50, 147
P.3d 825, 833-34 (2006) (the Rodrigues test)).
In Tsujimura, the Hawai#i Supreme Court held that the
defendant's prearrest silence while detained during an
investigatory stop was introduced into evidence as substantive
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proof of his guilt, in violation of his right to remain silent.
Id. at 318, 400 P.3d at 519. There, the arresting officer
testified that the defendant agreed to take an SFST and, in
response to the medical rule-out questions, stated that "he had
an old injury to his left knee . . . and that he was taking
medication for his high blood pressure and diabetes." Id. at
303, 400 P.3d at 504. On redirect examination, the prosecutor
asked the officer whether the defendant mentioned while exiting
the car that he could not get out due to his injury. Id. at 304-
05, 400 P.3d at 505-06. The defendant objected as "the question
sought and elicited a response that commented on Tsujimura's
right to remain silent." Id. at 305, 400 P.3d at 506. The
supreme court applied the Rodrigues test and held that the
purpose of the question was to imply guilt. Id. at 316, 400 P.3d
at 517. The court "emphasize[d] that the silence used against
[the defendant] was not made in response to a question posed by
[the arresting officer]," id. at 313, 400 P.3d at 514, and then
explained:
By eliciting the fact that [the defendant] did not say
anything about his injury while he exited his car, it was
clear that the State's purpose was to imply that [the
defendant's] injuries did not physically inhibit him from
performing the [S]FSTs and to inferentially establish that
[the defendant's] diminished faculties during the [S]FSTs
were a product of intoxication and not influenced by his
injuries.
Id. at 316, 400 P.3d at 517. "[T]he character of the evidence"
also led "to the conclusion that its admission at trial was
improper" because it suggested that the defendant's "silence
implied that his physical condition while performing the [S]FSTs
was due to alcohol impairment[.]" Id.
Here, Pada argues that the State's questions to Officer
Seminara on redirect and to Pada on cross-examination, as quoted
above, and the State's related comments in closing, "were clearly
designed to imply that because Pada had not told Officer Seminara
that his back issues or medication would affect his performance
on the SFST, that Pada's performance on the SFST was solely due
to intoxication." The State counters that, unlike the
circumstances in Tsujimura, the State's redirect examination of
Officer Seminara concerned Pada's answers given in response to
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questions posed by the officer; similarly, the State's cross-
examination of Pada concerned answers given in response to
Officer Seminara's questions that were directed at determining
whether he could administer the SFST. The State further argues
that when considered in conjunction with defense counsel's
examinations, the State's examinations were not intended to imply
Pada's guilt; nor does the character of the elicited information
suggest to the fact-finder an inference of guilt.
The record does not support the State's arguments with
regard to its cross-examination of Pada. Specifically, the
questions posed by the State did not concern Pada's answers given
in response to questions by Officer Seminara that were directed
at determining whether he could administer the SFST. According
to Officer Seminara, once he concluded the medical rule-out
questions, he "made the determination that [Pada] was fit to do
the [SFST]," and proceeded to administer the tests. The record
does not show that Officer Seminara asked Pada any further
questions about his medical conditions, medications, comfort,
pain, or his ability to perform the SFST once it was commenced.
However, in the following excerpt from Pada's cross-examination,
the State repeatedly questioned why Pada did not inform the
officer at any point during the SFST that he was uncomfortable or
ask whether his medication would impair his performance on the
SFST:
BY [DPA]:
Q. So, Mr. Pada, did you at any time tell Officer
Seminara that you felt uncomfortable or imbalanced during
the SFST?
A. No, I didn't tell him that.
Q. And why?
A. Because I'm (indiscernible) used to that. It's
not something that I would think that I would have to let
him know.
Q. But didn't he ask you if you had any questions?
A. Yeah, pertaining to the -- the test that he was
giving me, which I completely understood what he was telling
me.
Q. So couldn't you have asked him that question, if
you had medication, if you were unable to perform the SFST?
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A. He did ask me if I had any medication, and I
thought that if he felt that would impair me in any way, he
wouldn't administer it.
. . . .
Q. (BY [DPA]) If you felt that way about being
uncomfortable about asking the question, wouldn't you have
asked Officer Seminara if you did really feel that way?
A. (Indiscernible) I really felt that way. I just
wanted to comply with whatever the officer was telling me to
do.
(Emphases added.)
The State's line of questioning here appears to imply
that Pada should have spoken up spontaneously while performing
the SFST, or in response to earlier questions concerning whether
he understood the SFST instructions, to let the officer know that
he (Pada) was physically uncomfortable during the test or to ask
if his medication would impair his performance. The State
similarly argued during closing that "[a]t any point of the
[SFST], if [Pada] felt uncomfortable or because of the
medication, he could have asked the officer. . . . He didn't
have . . . anything to say during the [SFST]." (Emphases added.)
Because Officer Seminara had already concluded the
medical rule-out questions and had moved on to the tests
themselves, the State's cross-examination of Pada about his
silence during the SFST raises the very concerns identified by
the supreme court in Tsujimura. 140 Hawai#i at 313, 400 P.3d at
514. There, the court noted that during trial, "the prosecutor
was asking what [the defendant] failed to say even if the
information was not prompted or sought from him by [the arresting
officer]." Id. The court reasoned that in such circumstances:
[P]ermitting silence to serve as an implication of guilt
would mean that the State would always be able to use as
substantive proof of guilt prearrest silence not made in
response to a question by a police officer. The prosecutor
need only identify a point in time during the defendant’s
interaction with the police officer when no question was
posed and no verbal exchange was had (and, therefore, the
defendant was expectedly silent) and use that silence as
evidence to infer the defendant’s guilt. This would
engender a result where, in any encounter between a law
enforcement officer and a citizen, the State would be able
to adduce evidence of prearrest silence in myriad ways
(e.g., When she was handing you her driver's license and
registration, did she say anything about her injuries?,
While she was opening the glove box, did she say anything
about her injuries?, While she was outside the car, did she
say anything?, etc.).
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Id. at 313-14, 400 P.3d at 514-15 (emphasis added).
The same reasoning applies here. Once Pada responded
that he had no questions about the SFST instructions, Officer
Seminara's question was answered, and no additional response was
expected. Cross-examining Pada at trial as to why he did not
inform the officer at any point during the SFST that he was
uncomfortable or ask whether his medication would impair his
performance on the SFST clearly implicated Pada's right to remain
silent under Tsujimura.
Moreover, the State's cross-examination of Pada does
not appear to be directed at determining whether Officer Seminara
could administer the SFST, as the State argues, but rather, to
imply or infer Pada's guilt. Indeed, the State argues that it
sought to "expose[] fairly the inconsistency between [Pada's]
representations to Officer Seminara that he had no physical
defects or impediments and his trial testimony in which he
attributed his poor performance on the field sobriety test to his
physical condition and the effects of the medications related
thereto." (Emphasis added.) Thus, the State's intent was not to
establish that Officer Seminara could administer the test, but to
point out Pada's allegedly inconsistent statements about his
ability to perform the SFST.
Additionally, when considered in conjunction with
Pada's direct examination, the State's line of questioning on
cross-examination further supports Pada's argument that the
questioning was intended to imply his guilt or suggest to the
fact finder that it may infer guilt. On direct examination,
defense counsel elicited Pada's testimony concerning his medical
conditions and medications as they potentially related to his
performance on the SFST, and generally not concerning what Pada
told Officer Seminara about his medical conditions and
medications.4/ In contrast, the State's cross-examination did not
4/
Pada's only testimony on direct examination as to what he told
Officer Seminara about his medical conditions was the following:
Q. . . . Officer Seminara asked you . . . if you were
under the care of a doctor for anything?
A. Correct.
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directly challenge Pada's testimony concerning whether his
medical conditions affected his performance on the SFST, but
focused on what Pada did not tell the officer about his
conditions. This suggests that the purpose of the questioning
was indeed to imply or infer Pada's guilt. See Tsujimura, 140
Hawai#i at 316, 400 P.3d at 517 (by eliciting that the defendant
did not say anything about his injury while exiting his car, the
State's purpose was to imply that his injuries did not physically
inhibit him from performing the SFST and to inferentially
establish his guilt).
Accordingly, on this record, we conclude that the State
violated Pada's right to remain silent, by eliciting during
cross-examination that he did not say he was uncomfortable during
the SFST or ask whether his medication would impair his
performance, and by commenting on this information during the
State's closing argument.
The District Court, however, admitted this testimony
and allowed this closing argument without any objection from the
defense based on Pada's right to remain silent. We therefore
review this issue for plain error. See Hawai#i Rules of Penal
Procedure Rule 52(b). The supreme court has summarized the plain
error standard as follows:
It is "firmly established" that the relevant inquiry when
evaluating whether a trial court's plain error may be
noticed is whether the error affected substantial rights.
Thus, a reviewing court has discretion to correct plain
error when the error is "not harmless beyond a reasonable
doubt."
. . . .
. . . If there is a reasonable possibility that
the error contributed to the conviction, "the error is
not harmless beyond a reasonable doubt, and the
conviction must be set aside."
State v. Ui, 142 Hawai#i 287, 297, 418 P.3d 628, 638 (2018)
(citations & footnotes omitted; emphases added).
On this record, it appears that the district court may
have relied in part on Pada's exercise of his right to remain
Q. And what did you respond to that?
A. That I am.
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silent in finding him guilty of OVUII. In rendering its
decision, the district court noted, for example, the following:
Officer Seminara did not follow up on the questions as
far as the medication. Mr. Pada did not tell him any
further about when these -- wait, hang on. On
cross-examination, Officer Seminara stated that the prior
back surgery was in 2003 and also 2008.
Thus, it is possible that the district court may have inferred
from the fact that Pada did not provide further details about his
current medical condition and medication that these factors did
not physically inhibit him from performing the SFST and that
Pada's purportedly poor performance was a product of intoxication
and not influenced by his injuries. See Tsujimura, 140 Hawai#i
at 316, 400 P.3d at 517; State v. Jones, 148 Hawai#i 152, 170-71,
468 P.3d 166, 184-85 (2020).
In addition, based on our review of the trial record,
including the evidence countervailing a finding of intoxication,
we cannot conclude there is no reasonable possibility that the
district court's error contributed to Pada's conviction. See
Tsujimura, 140 Hawai#i at 318, 400 P.3d at 519 (noting the
presence of "evidence countervailing a finding of intoxication"
in concluding that erroneously admitted testimony was not
harmless beyond a reasonable doubt); see also State v. Torres,
144 Hawai#i 282, 291, 439 P.3d 234, 243 (2019) ("When assessing
whether the error was harmless, 'a crucial if not determinative
consideration is the strength of the prosecution's case on the
defendant's guilt.'" (quoting State v. Tetu, 139 Hawai#i 207,
226, 386 P.3d 844, 863 (2016)) (brackets and ellipsis omitted)).
The district court's error thus was not harmless beyond a
reasonable doubt.
In choosing to invoke our discretionary review of plain
error, we may also consider whether the record evinces "errors
which seriously affect the fairness, integrity, or public
reputation of judicial proceedings." Ui, 142 Hawai#i at 298, 418
P.3d at 639 (quoting State v. Miller, 122 Hawai#i 92, 100, 223
P.3d 157, 165 (2010)). "We will correct such errors 'to prevent
the denial of fundamental rights' — regardless of whether the
error was brought to the attention of the trial judge or raised
on appeal." Id. (quoting Miller, 122 Hawai#i at 100, 223 P.3d at
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165). Here, the district court's error affected Pada's right to
remain silent, which is a fundamental constitutional right. See
State v. Mainaaupo, 117 Hawai#i 235, 252, 178 P.3d 1, 18 (2008)
("There is nothing more basic and more fundamental than that the
accused has a constitutional right to remain silent, and the
exercise of this privilege may not be used against him." (quoting
State v. Alo, 57 Haw. 418, 424, 558 P.2d 1012, 1016 (1976))).
Accordingly, we conclude that the district court's
error affected substantial rights and Pada's conviction must be
set aside.
III. Conclusion
For the reasons discussed above, we vacate the Judgment
entered on September 16, 2019, in the District Court of the First
Circuit, Wai#anae Division, and remand this case to the district
court for further proceedings consistent with this Memorandum
Opinion.
DATED: Honolulu, Hawai#i, March 25, 2021.
On the briefs:
Jon N. Ikenaga, /s/ Lisa M. Ginoza
Deputy Public Defender, Chief Judge
for Defendant-Appellant.
Donn Fudo, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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