State v. Pelen

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2021
07:50 AM
Dkt. 48 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
ALEXANDER BALECHA PELEN, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-17-03881)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Alexander Balecha Pelen (Pelen)
appeals from the February 7, 2018 Notice of Entry of Judgment1
and the July 19, 2018 Order Revoking Driver's License and
Granting Ignition Interlock Driving Permit entered by the

1
The judgment attached to Pelen's Notice of Appeal, names a
different defendant. Hawai#i Rules of Appellate Procedure (HRAP) Rule 3(c)(2)
requires that a copy of the judgment or order being appealed from be attached
as an exhibit to the notice of appeal. However, this court has observed that
"a mistake in designating the judgment . . . should not result in loss of the
appeal as long as the intention to appeal from a specific judgment can be
fairly inferred from the notice and the appellee is not misled by the
mistake." State v. Graybeard, 93 Hawai#i 513, 516, 6 P.3d 385, 388 (App.
2000). It can be inferred that Pelen appeals from the July 19, 2018 Order
Revoking Driver's License and Granting Ignition Interlock Driving Permit, the
last order in this case, and the February 7, 2018 judgment, an accurate copy
of which can be found in the District Court record.
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District Court of the First Circuit (District Court).2 Pelen was
convicted of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1)(b)(1) (2007 & Supp. 2017)3 and sentenced, inter
alia, to a $200 fine and other mandatory penalties.
On appeal, Pelen contends that the District Court erred
by (1) performing an inadequate Tachibana colloquy; (2) accepting
a stipulation as to the training and qualifications of the
officer who administered the standard field sobriety test (SFST)
without any colloquy of Pelen; (3) denying Pelen's motion to
dismiss the "defective charge;"4 (4) admitting the SFST officer's
police report into evidence; (5) denying Pelen's motion to strike
testimony that was not based on the present recollection of the
witnesses;5 (6) allowing the State to reopen its case after it

2
The Honorable William M. Domingo presided.
3
HRS § 291E-61 read at the time of the offense:

(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;

. . . .

(b) A person committing the offense of operating a vehicle
under the influence of an intoxicant shall be sentenced
without possibility of probation or suspension of sentence
as follows:
(1) For the first offense, or any offense not preceded
within a five-year period by a conviction for an offense
under this section or section 291E-4(a)[.]
4
Pelen does not present any argument on this point regarding the
denial of the motion to dismiss, and thus, we deem it waived under HRAP Rule
28(b)(7).
5
As to this point, Pelen fails to comply with HRAP Rule
28(b)(4)(A), which requires that when the point of error involves the
admission or rejection of evidence, the point must include the full substance
of the evidence at issue. Pelen claims that the District Court's denial of
the motion meant that "all of the testimony given by the STATE's witnesses

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had rested; and (7) convicting Pelen based on inadmissible
evidence.6
Because we hold that Pelen did not validly waive his
right to testify, and that the SFST officer's police report was
erroneously admitted under the past recollection recorded
exception to the hearsay rule, we vacate and remand.

I. BACKGROUND
At the beginning of the judge trial on February 7,
2018, the District Court gave Pelen the following advisement:

THE COURT: [B]efore the trial begins, the Court must
advise you that you have a right to testify and a right
not to testify, that I will question you further toward
the end of your trial whether you want to waive either
of these rights to make sure that you have been fully
informed of your rights, and to make sure that any
decision you make is your decision.

DEFENDANT PELEN: Yes.

THE COURT: You understand, sir?
DEFENDANT PELEN: Yes.

Plaintiff-Appellee State of Hawai#i (State) and Pelen's
counsel stipulated that Honolulu Police Department (HPD) Officer
Shawn Borges (Officer Shawn)7 was qualified to administer the
SFST.
HPD Officer Ross Borges (Officer Ross) testified that
on the night of October 13, 2017, he was traveling westbound on

remained in the record." Pelen's point does not contain the offending
portions of the officers' testimonies that Pelen claims the District Court
erroneously failed to strike. Therefore, we disregard this point of error
under HRAP Rule 28(b)(4), and in light of our holding infra, regarding the
erroneous admission of the SFST officer's police report.
6
Pelen does not present any argument on this last point of error
regarding the erroneous conviction of Pelen based on inadmissible evidence,
and thus, we deem it waived under HRAP Rule 28(b)(7).
7
The arresting officer Ross Borges and the officer who administered
the SFST, Shawn Borges, both have the same last name. To avoid confusion, we
refer to the officers by their first names.

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Kapi#olani Boulevard when he saw Pelen, who was driving
eastbound, turn left where no left turns were allowed. Pelen
parked at the Rock-Za parking lot and Officer Ross followed,
parking behind Pelen's vehicle. When the officer approached,
Pelen was in the driver's seat and another male was in the
passenger seat. The officer observed that Pelen had difficulty
removing the key from the ignition. When asked for his
registration, insurance, and license, Pelen gave the officer his
license but "had a lot of difficulty providing the documents that
[he] requested."
Officer Ross testified that, while questioning Pelen,
he smelled the odor of alcohol on Pelen's breath and observed
that Pelen had red, watery eyes and slightly slurred speech.
When the officer read him the "preliminary alcohol screening
admonition," Pelen asked several questions, and mentioned he had
been drinking, explaining that he had an argument with his wife.
Officer Ross said Pelen was advised of his Miranda rights prior
to performing the SFST.
Officer Shawn administered the SFST to Pelen. Officer
Shawn testified that Pelen had red, bloodshot, watery eyes with a
strong smell of alcohol coming from him. The officer asked
"medical rule-out questions," and conducted the horizontal gaze
nystagmus and "walk-and-turn" tests. The officer observed that
during the instructional portion of the walk-and-turn test, Pelen
"couldn't hold the start position. He kept, not falling over,
but he just couldn't hold the position." When asked to describe
Pelen's performance on the test, Officer Shawn could not recall
on which step Pelen stopped walking and requested his SFST report
to refresh his memory. The prosecutor presented the SFST report,
retrieved it; and asked Officer Shawn if it had refreshed his
memory, and the officer responded that it had.
Officer Shawn then testified regarding which steps
Pelen missed and that on the turn portion, "it was nothing like I

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demonstrated." The last test administered was the one-leg-stand
test. The officer asked to review the SFST report again. The
prosecutor showed the officer the SFST report, and the officer
agreed that the report independently refreshed his recollection.
Officer Shawn testified that Pelen put his foot down multiple
times, "swayed to balance," and "leaned one way and then caught
himself to try and lean back the other way."
During cross-examination, Officer Shawn agreed that he
did not have a "present recollection of particular specific
factual details" of the walk-and-turn test. He also agreed that
his testimony regarding Pelen's inability to hold a starting
position was based on present recollection "of the report" rather
than a recollection of the event.
On redirect, the prosecutor again showed Officer Shawn
the SFST report. The officer noted that it was in his
handwriting and was signed and dated on October 13, 2017.
Officer Shawn testified that he created the document "as we were
doing the test."
The State requested to admit the SFST report as a "past
recollection recorded" because the officer "did make it during
the field sobriety test, at the same time that he made it."
Pelen objected based on hearsay, lack of foundation, and because
the document was a police report which fell into one of the
"specifically excluded hearsay exceptions" under the Hawaii Rules
of Evidence (HRE). Pelen further argued that there was a lack of
foundation for the past recollection recorded exception, and even
if foundation had been laid, that the past recollection recorded
exception did not permit the admission of police reports in
criminal cases. The District Court received the SFST report into
evidence over Pelen's objection. The State then rested.
Pelen's counsel then moved to strike Officer Shawn's
testimony regarding the SFST on the basis that the officer did
not have a present recollection of his observations and was

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testifying as to "what he could from reading his police report."
Pelen also moved to strike the testimony of "all officers" on the
same grounds. He renewed his objection to the police report
based on the hearsay rule and HRE Rule 803(b)(8).8
The State requested that if the SFST report was "not
admitted" into evidence, that Officer Shawn be recalled to read
his report into the record, and the prosecutor explained that he
had dismissed the officer "believing that [the report] was in
evidence." The District Court granted the request to recall
Officer Shawn over Pelen's objection, and clarified that "it will
not accept Exhibit 1 [(SFST report)]." Over the defense's
running objection, Officer Shawn read portions of his SFST report
into the record, which included, inter alia, Officer Shawn's
observations of Pelen during the walk-and-turn and the one-leg
stand tests.
The State rested a second time, and the defense
indicated it would rest. At that time, the District Court
engaged in the following colloquy with Pelen:

THE COURT: All right. Mr. Pelen –

DEFENDANT PELEN: Yes.

THE COURT: -- how old are you, sir?
DEFENDANT PELEN: Fifty-six.
THE COURT: How many years of schooling have you had?

DEFENDANT PELEN: I went to college.
THE COURT: Okay. Do you understand the English language?
DEFENDANT PELEN: Yes.

THE COURT: Have you taken any drugs and/or medication or
alcoholic drinks in the last 48 hours?
DEFENDANT PELEN: No.
THE COURT: Is your mind clear?

8
HRE Rule 803(b)(8) is set forth in the Discussion section infra.

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DEFENDANT PELEN: Yes.
THE COURT: Have you been charged with a felony offense
before?
DEFENDANT PELEN: I had a fight a long time ago.

THE COURT: Okay. Have you ever been to a criminal court
before?
DEFENDANT PELEN: Yes.
THE COURT: Have you testified before?

DEFENDANT PELEN: No.
THE COURT: Okay. I'm going to advise you of some very
important rights. If you don't understand anything I say,
please let me know. Okay? Do you understand that you have a
constitutional right to make -- not to make incriminating
statements?
DEFENDANT PELEN: Yes.

THE COURT: Okay. Do you understand that you have the
constitutional right to remain silent and not to testify at
this trial?
DEFENDANT PELEN: Yes.

THE COURT: Okay. Do you understand that if you elect to
testify, anything you can -- that you say can and may be
used against you?

DEFENDANT PELEN: Yes.

THE COURT: Yes. Okay. Do you understand that if you elect
to testify, you will be subject to cross-examination where
the prosecutor will be permitted to ask you questions, and
you will be required to answer all of those questions?
DEFENDANT PELEN: Yes.
THE COURT: Okay. Although you should confer with your
attorney whether to testify, you understand that the final
decision is entirely up to you?

DEFENDANT PELEN: Yes.
THE COURT: Okay. Do you understand --let's see now.
Do you have any questions about what I've explained to you?

DEFENDANT PELEN: No.
THE COURT: Understanding all that I've explained to you, do
you wish to testify?
DEFENDANT PELEN: No, thank you.

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THE COURT: Okay. All right. Court finds that Mr. Pelen
has voluntarily, intelligently, and knowingly waived his
right to remain silent -- to testify.

[DEFENSE COUNSEL]: And, Judge, we're going to object to the
Court asking Mr. Pelen during the -- in the middle of a
trial whether or not he has ever been convicted of a felony.

THE COURT: All right. That will be noted.

Pelen did not testify.
The District Court found Pelen guilty based on the
testimonies of the two officers which the court deemed to be
credible, in concluding that Pelen was "under the influence of
alcohol to a point where his normal mental faculties were
impaired." Pelen timely appealed.

II. STANDARDS OF REVIEW
A. Waiver of Right to Testify
"The validity of a criminal defendant's waiver of the
right to testify is a question of constitutional law reviewed by
this court under the right/wrong standard." State v. Eduwensuyi,
141 Hawai#i 328, 332, 409 P.3d 732, 736 (2018) (citing State v.
Gomez-Lobato, 130 Hawai#i 465, 468-69, 312 P.3d 897, 900-01
(2013)).
B. Waiver of Constitutional Right
"The validity of a defendant's waiver of a
constitutional right is a question of constitutional law" that is
reviewed "under the right/wrong standard." State v. Wilson, 144
Hawai#i 454, 460, 445 P.3d 35, 41 (2019) (citations omitted).
C. Admissibility of Evidence
"Evidentiary rulings are reviewed for abuse of
discretion, unless application of the rule admits of only one
correct result, in which case review is under the right/wrong
standard." State v. Ortiz, 91 Hawai#i 181, 189, 981 P.2d 1127,
1135 (1999) (internal quotation marks and citations omitted).
"Where the admissibility of evidence is determined by application
of the hearsay rule, there can be only one correct result, and

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the appropriate standard for appellate review is the right/wrong
standard." State v. Abrigo, 144 Hawai#i 491, 497, 445 P.3d 72,
78 (2019) (internal quotation marks, brackets, and citation
omitted).

III. DISCUSSION
A. The Tachibana colloquy was deficient under
State v. Eduwensuyi.

Under Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d
1293, 1303 (1995), "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 instructs the trial court to advise the
defendant:

[T]hat he [or she] has a right to testify, that if he [or
she] wants to testify that no one can prevent him [or her]
from doing so, [and] that if he [or she] testifies the
prosecution will be allowed to cross-examine him [or her].
In connection with the privilege against self-incrimination,
the defendant should also be advised that he [or she] has a
right not to testify and that if he [or she] does not
testify then the jury can be instructed about that right.

Id. at 236 n.7, 900 P.2d at 1303 n.7 (alterations in original)
(citations omitted). A Tachibana colloquy has two components:
first, an apprisal of the "fundamental principles pertaining to
the right to testify and the right not to testify," and second,
"a verbal exchange between the judge and the defendant" to
ascertain whether the defendant understands his or her rights.
State v. Celestine, 142 Hawai#i 165, 170, 415 P.3d 907, 912
(2018).
The State concedes that the District Court's Tachibana
colloquy was deficient, and this error was not harmless beyond a
reasonable doubt. Nevertheless, "this court must still determine
whether the error was properly preserved, was prejudicial to
[Pelen], and is supported by the record." State v. Hoang, 93

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Hawai#i 333, 336, 3 P.3d 499, 502 (2000) (citation omitted). "In
other words, a confession of error by the prosecution 'is not
binding upon an appellate court, nor may a conviction be reversed
on the strength of [the prosecutor's] official action alone.'"
Id. (quoting Territory v. Kogami, 37 Haw. 174, 175 (1945)).
Pelen and the State agree that the final colloquy was
defective because it lacked an advisement that if Pelen wanted to
testify, no one could prevent him from doing so. The parties
agree that the District Court's advisement "the final decision is
entirely up to you" was inadequate. This language is similar to
the language the supreme court found inadequate in Eduwensuyi,
141 Hawai#i at 330, 490 P.3d at 734, where the defendant was
advised "ultimately, it's your decision" whether to testify.
"[T]he advisement that no one can prevent the defendant from
testifying is critical and the only Tachibana advisement that
emphasizes that the waiver of the right to testify must be
voluntary[.]" Id. at 334, 409 P.3d at 738. Absent such an
advisement and accompanying colloquy, without more, there is no
"objective basis" to find that a defendant voluntarily waived his
or her right to testify. State v. Han, 130 Hawai#i 83, 91, 306
P.3d 128, 136 (2013). In this case, there is no other basis upon
which we can conclude that Pelen voluntarily relinquished his
right to testify. See id. Therefore, the District Court's
colloquy failed to obtain from Pelen a knowing, voluntary and
intelligent waiver of his right to testify.
"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 Hawai#i at 240, 900 P.2d at
1307. "The relevant question 'is whether there is a reasonable
possibility that the error might have contributed to the
conviction.'" Celestine, 142 Hawai#i at 173, 415 P.3d at 915

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(quoting Han, 130 Hawai#i at 93, 306 P.3d at 138)(emphasis in
original)(brackets and underscoring omitted).
The State does not argue the error was harmless beyond
a reasonable doubt, conceding that "it is unknown whether
Defendant's testimony would have had any effect on the outcome of
his case." Such a concession is appropriate, because "it is
inherently difficult, if not impossible, to divine what effect a
violation of the defendant's constitutional right to testify had
on the outcome of any particular case." State v. Pomroy, 132
Hawai#i 85, 94, 319 P.3d 1093, 1102 (2014) (quoting Hoang, 94
Hawai#i at 279, 12 P.3d at 379). As in Pomroy, the record in
this case "offers no clue to what [Pelen] would have said, under
oath, on the witness stand." Id.
In this case, Pelen's challenge has merit because the
record does not reflect that Pelen knowingly, intelligently and
voluntarily waived his right to testify, and we cannot conclude
that the error was harmless. See Eduwensuyi, 141 Hawai#i 328,
409 P.3d 732.

B. Under State v. Wilson, a colloquy was not
required for the stipulation to the witness's
qualifications.

Pelen contends that the District Court failed to
conduct a colloquy following the parties' stipulation regarding
Officer Shawn's qualifications and training to administer and
interpret the SFST. In support of his argument, Pelen relies on
State v. Murray, 116 Hawai#i 3, 169 P.3d 955 (2007) (requiring an
on-the-record colloquy before a trial court accepts a stipulation
to an element of a charged offense to ensure defendant's
intelligent, knowing, and voluntary waiver of fundamental due
process right to have all elements proved beyond a reasonable
doubt), and State v. Ui, 142 Hawai#i 287, 418 P.3d 628 (2018)
(rejecting a "trial strategy" exception to the colloquy
requirement where defense counsel's stipulation to facts that had

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the effect of establishing an element of the charged offense, and
reaffirming colloquy requirement of Murray before a trial court
can accept waiver of any fundamental right).
In Wilson, 144 Hawai#i at 464, 445 P.3d at 45, the
Hawai#i Supreme Court considered this identical issue in light of
Hawai#i precedent, including, inter alia, Ui and Murray. The
Wilson Court explained that the parties' stipulation in an OVUII
case that the officer was "qualified and certified" to conduct
the SFST and received "specialized training in administering and
grading" the SFST, did not constitute proof that the defendant
was operating a vehicle or that the defendant was impaired, and
thus, a colloquy with the defendant prior to accepting the
stipulation was not required under these circumstances. Id. The
Wilson Court held that because "the stipulation in this case did
not establish facts satisfying any elements of the charged
offense," the stipulation "did not amount to a waiver of Wilson's
fundamental right to have every element of a charged offense
proven beyond a reasonable doubt." Id. The Court recognized
that "this stipulation was to an evidentiary foundation involving
the qualification of a witness," and the stipulation did not
"significantly impinge" upon Wilson's constitutional
confrontation rights. Id. Under the circumstances before it,
the Wilson Court concluded, "we cannot say that the stipulation
so infringed upon Wilson's right to confront [the] [o]fficer that
a colloquy was required." Id. at 465, 445 P.3d at 46.
Wilson applies to this case and is dispositive. As in
Wilson, we cannot say that the parties' stipulation to Officer
Shawn's qualifications and training to administer and interpret
the SFST "so infringed" upon Pelen's constitutional right to
confront witnesses that a colloquy was required in this case.
Id. The stipulation did not establish, nor did it have the
effect of proving any element of the OVUII offense, and thus, the
stipulation did not amount to a waiver of Pelen's right to have

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every element proven beyond a reasonable doubt. See id. Pelen's
challenge on this ground is without merit.

C. Under State v. Abrigo, the SFST officer's
report was erroneously admitted under the
past recollection recorded exception to
the hearsay rule.

Pelen contends that the District Court erred in
admitting Officer Shawn's police report regarding the SFST, over
Pelen's objections based on hearsay and lack of foundation.
Pelen also argues that the police report exclusion to the HRE
803(b)(8)9 public records exception to the hearsay rule
prohibited the District Court's admission of the police report
under the past recollection recorded exception to the hearsay
rule under HRE Rule 802.1(4).10

9
HRE Rule 803(b)(8), the "public records" exception to the hearsay
rule provides:

The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:

. . . .

(b) Other exceptions.

. . . .

(8) Public records and reports. Records, reports,
statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the
office or agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement
personnel . . . .
(emphasis added).
10
HRE Rule 802.1(4), the "past recollection recorded" exception to
the hearsay rule provides:

The following statements previously made by witnesses who
testify at the trial or hearing are not excluded by the hearsay
rule:
. . . .

(4) Past recollection recorded. A memorandum or record
concerning a matter about which the witness once had knowledge but

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In Abrigo, 144 Hawai#i at 505, 445 P.3d at 86, the
Hawai#i Supreme Court considered this identical issue and held
that "police reports may not be admitted against a defendant in a
criminal case under the HRE Rule 802.1(4) past recollection
recorded hearsay exception." In Abrigo, the defendant's
conviction for OVUII was vacated and remanded, where the
defendant was convicted on the "sole basis" of an SFST police
report authored by an officer "who testified at trial that he
could no longer remember the material facts underlying the
defendant's arrest." Id. at 494, 445 P.3d at 75. The defendant
had moved to strike the officer's testimony, and the trial court
denied the motion. Id. at 496, 445 P.3d at 77. The Abrigo Court
explained that "records excluded by the public records exception"
under HRE Rule 803(b)(8) "cannot be read into evidence based on
an alternative evidentiary ground." Id. at 494, 445 P.3d at 75.
The Court examined relevant Hawai#i precedent and caselaw from
other jurisdictions on this issue, the history of the public
records hearsay exception, and considered the "illogical results"
of admitting police reports through the past recollection
recorded hearsay exception. Id. at 499-505, 445 P.3d at 80-87.
The Abrigo Court concluded that "litigants may not utilize
another hearsay exception as a back door to bypass the
restrictions contained in the public records hearsay exception."
Id. at 494, 445 P.3d at 75. The Hawai#i Supreme Court vacated
Abrigo's conviction, and remanded to the district court for
further proceedings consistent with its opinion. Id. at 505, 445
P.3d at 86. Applying Abrigo to this case, we conclude that the
District Court erroneously admitted evidence from Officer Shawn's

now has insufficient recollection to enable the witness to testify
fully and accurately, shown to have been made or adopted by the
witness when the matter was fresh in the witness' memory and to
reflect that knowledge correctly. If admitted, the memorandum or
record may be read into evidence but may not itself be received as
an exhibit unless offered by an adverse party.

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SFST report into evidence, and Pelen's challenge on this ground
has merit. See id.
Because we vacate and remand for the reasons set forth
above, we do not reach Pelen's remaining point of error
challenging the reopening of the State's case.

IV. CONCLUSION
Based on the foregoing, we vacate the February 7, 2018
Notice of Entry of Judgment and the July 19, 2018 Order Revoking
Driver's License and Granting Ignition Interlock Driving Permit,
both entered by the District Court of the First Circuit, and
remand for further proceedings consistent with this opinion.
DATED: Honolulu, Hawai#i, March 30, 2021.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Timothy I. Mac Master
for Defendant-Appellant /s/ Keith K. Hiraoka
Associate Judge
Chad Kumagai
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
City and County of Honolulu Associate Judge
for Plaintiff-Appellee

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