NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAR-2021
07:53 AM
Dkt. 39 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
EON KYU JOO, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-19-00125)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Eon Kyu Joo (Joo) appeals from the
Notice of Entry of Judgment and/or Order and Plea/Judgment, filed
on May 7, 2019, in the District Court of the First Circuit,
Honolulu Division (District Court).1
Joo was convicted 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
1
The Honorable Michelle N. Comeau presided.
2
HRS § 291E-61(a)(1) states:
§291E-61 Operating a vehicle under the influence of
an intoxicant. (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[.]
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Joo contends: (1) the District Court failed
to conduct an adequate Tachibana colloquy,3 which was not
harmless; and (2) there was insufficient evidence to convict him
of OVUII.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
affirm.
(1) Joo asserts the following arguments in challenging
the Tachibana colloquy in this case:
(a) when the District Court asked "And you understand
that if you choose not to testify, that cannot be held against
you in deciding your case?" it was not stated as a question but
an affirmative statement which Joo simply agreed with instead of
demonstrating an understanding of his right; and further, the
District Court did not explain the meaning of "that cannot be
held against you[,]" which could have various meanings such that
the court should have explained that it was Joo's silence which
could not be held against him, and that it was the court as fact-
finder that would not hold Joo's silence against him;
(b) the District Court did not question Joo about his
state of mind and whether his mind was clear; and
(c) instead of asking an open-ended question, the
District Court stated: "It is the understanding of the Court that
you do not intend to testify in this case. Is that correct?"
Joo contends the information was obtained from his attorney, who
had indicated the defense rested, the question was leading, and
it was unclear whether Joo was merely acknowledging the
information or was making his own decision.
The Hawai#i Supreme Court has stated:
The constitutional right to 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. In
3
Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).
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determining whether a waiver of the right to testify
was voluntarily and intelligently made, this court
looks to the totality of the facts and circumstances
of each particular case.
State v. Celestine, 142 Hawai#i 165, 171, 415 P.3d 907, 913
(2018) (internal citations omitted). Here, after the State
rested its case, the District Court conducted the following
colloquy with Joo:
MR. KING: Defense is going to rest, Your Honor.
THE COURT: Okay. Do you need time to talk to the
defendant? Do you need any time to speak to the
defendant?
MR. KING: No, Your Honor.
THE COURT: Okay. All right. Mr. Joo, before you rest
I want to make sure that you understand your rights
regarding whether or not to testify. Okay? So as I
discussed with you before the start of trial, you have
the constitutional right to testify in your own
defense. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And although you should consult with your
lawyer regarding your decision to testify, it is your
decision and no one can prevent you from testifying
should you choose to do so. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And if you decide to testify, the
prosecutor will be allowed to cross-examine you. Do
you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. You also have the
constitutional right not to testify. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: And you understand that if you choose not
to testify, that cannot be held against you in
deciding your case?
THE DEFENDANT: Yes.
THE COURT: All right. It is the understanding of the
Court that you do not intend to testify in this case.
Is that correct?
THE DEFENDANT: Yes.
THE COURT: And that's your decision?
THE DEFENDANT: Yes.
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THE COURT: Okay. All right. And defense is resting?
MR. KING: Yes, Your Honor.
(Emphases added).
(1a) Contrary to Joo's claim, the question "And you
understand that if you choose not to testify, that cannot be held
against you in deciding your case?" is not stated as an
affirmative statement and was not an improper leading question.
Rather, a fair reading of this question in the totality of the
circumstances is that the District Court sought to ascertain
Joo's understanding of a principle involved in the right not to
testify. See Celestine, 142 Hawai#i at 170, 415 P.3d at 912.
Further, the District Court properly referred to Joo's right not
to testify instead of his right to remain silent. See State v.
Han, 130 Hawai#i 83, 93 n.8, 306 P.3d 128, 138 n.8 (2013) ("A
defendant could be confused if a court states simply, 'you have
the right to remain silent' without using the accompanying
phrase, 'you have the right not to testify.'"). Additionally,
"[i]n a bench trial, defendants must be advised that if they
exercise their right not to testify, no inference of guilt may be
drawn for exercising this right, i.e., that a decision not to
testify cannot be used against a defendant by the judge in
deciding the case." State v. Martin, 146 Hawai#i 365, 378, 463
P.3d 1022, 1035 (2020) (citation omitted), as corrected (Apr. 23,
2020), reconsideration denied, No. SCWC-XX-XXXXXXX, 2020 WL
2538923 (Haw. May 19, 2020). Here, the District Court properly
advised Joo of the prohibition on using his choice not to testify
against him and properly informed Joo that if he chose not to
testify it would not be used against him "in deciding your case."
Finally, even if there was a defect in this part of the
colloquy, it would be harmless. Joo decided not to testify, thus
waiving his right to testify; but in this argument Joo claims the
District Court's colloquy is deficient regarding his right not to
testify. "We have previously held that when the deficiency in a
Tachibana colloquy is not related to the right waived, the error
appears harmless." State v. Adcock, 148 Hawai#i 308, 316, 473
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P.3d 769, 777 (2020), cert. denied, No. SCWC-19-000508, 2021 WL
276152 (Haw. Jan. 27, 2021) ("[E]ven if we were to conclude that
the Circuit Court erred in not obtaining verbal confirmation that
Adcock understood his right not to testify, such error is
harmless because Adcock did not waive that right."); State v.
Dykas, No. CAAP-XX-XXXXXXX, 141 Hawai#i 395, 410 P.3d 875, 2018
WL 852202, at *2 (App. Feb. 28, 2018) (SDO) (holding it was
harmless error where district court failed to advise defendant
that no adverse inference could be drawn if defendant did not
testify, and defendant chose not to testify).
(1b) Joo relies on State v. Jenkins, No. CAAP-16-
0000120, 144 Hawai#i 383, 442 P.3d 446, 2019 WL 2223535, at *2
(App. May 23, 2019) (mem.), to assert that the District Court
erred in not questioning him about his state of mind and whether
his mind was clear. Jenkins is distinguishable because the
colloquy in Jenkins was essentially one long advisement by the
trial court, with a single response from the defendant. Further,
although there is reference in Jenkins about a failure to inquire
into the defendant's state of mind, there is no citation to any
authority mandating such an inquiry. Further, although Joo also
states that inquiring into his state of mind was particularly
important because he was utilizing an interpreter during the
trial, citing State v. Krstoth, 138 Hawai#i 268, 378 P.3d 984
(2016), Krstoth does not require an inquiry into a defendant's
state of mind during a colloquy. Unlike in Han, 130 Hawai#i at
90-93, 306 P.3d at 135-38, which also involved a defendant
utilizing an interpreter, the District Court's colloquy here
advised Joo of the required Tachibana rights and principles, and
inquired if he understood his rights at multiple points during
the colloquy. Further, Joo does not point to anything in the
record that would alert the District Court that he was not of a
proper state of mind during the proceedings. Cf. State v. Kirby,
No. CAAP-XX-XXXXXXX, 142 Hawai#i 464, 420 P.3d 994, 2018 WL
3134523, at *2-3, (App. June 27, 2018) (SDO).
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Given the record in this case, we do not find merit in
this argument.
(1c) Joo's final challenge to the colloquy is where
the District Court stated: "All right. It is the understanding
of the Court that you do not intend to testify in this case. Is
that correct?" We disagree with Joo's claim that this was an
improper leading question. Rather, it is consistent with
Celestine, in which the Hawai#i Supreme Court stated "[t]he
second time we suggested a verbal exchange should occur is after
the court indicates to the defendant its understanding that the
defendant does not intend to testify[,]" 142 Hawai#i at 170, 415
P.3d at 912, and noted that "[t]he fact that the court is
conducting the Tachibana colloquy with the defendant generally
indicates that defense counsel has informed the court that the
defendant does not intend to testify." Id. at 170 n.12, 415 P.3d
at 912 n.12.
Moreover, this part of the colloquy did not render the
colloquy unclear, and in any event, the District Court
immediately followed-up by asking, "And that's your decision?" to
which Joo answered, "Yes."
Under the totality of the circumstances, Joo knowingly,
intelligently, and voluntarily waived his right to testify. The
District Court advised Joo of the required Tachibana advisements,
and Joo affirmed that he understood each advisement on-the-record
-- that he had the right to testify, no one could prevent him
from testifying, if he testified the prosecution could cross-
examine him, he had the right not to testify, and the decision
not to testify could not be held against him in deciding his
case. Joo affirmed that he did not intend to testify and that it
was his decision.
Given the record, we reject Joo's challenge to the
Tachibana colloquy in this case.
(2) When the evidence adduced at trial is considered
in the light strongest for the prosecution, there was substantial
evidence to convict Joo of OVUII. State v. Matavale, 115 Hawai#i
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149, 157-58, 166 P.3d 322, 330-31 (2007) (citations omitted).
While in his vehicle stopped at a red light at the intersection
of Lunalilo and Pensacola Streets, which are public ways,
streets, roads, or highways in the City and County of Honolulu,
State of Hawai#i, Joo tossed a cigarette butt out of the window
and accelerated at a high rate of speed to the next intersection
when the light turned green. After Joo was stopped, Officer
Mitchell Cadina (Officer Cadina) noticed Joo had red, watery, and
glassy eyes and an odor of an alcoholic beverage on his breath.
Joo was also trying to stay away from Officer Cadina by leaning
away from him while speaking.
Corporal Ernest Chang (Corporal Chang) testified that
he observed Joo to have red, glassy eyes, and further that he
could smell an odor of an alcoholic beverage from Joo when Joo
exited his vehicle and as they walked to a parking lot area. Joo
had agreed to participate in a field sobriety test. During the
walk-and-turn test, Corporal Chang observed that Joo lost his
balance and stepped out of position during the instructional
phase. Further, during the initial nine steps, Joo missed a
heel-to-toe on the fourth step by one or two inches, his arms
were held out during the entire test, he took ten steps instead
of nine, and during the nine steps back he missed a heel-to-toe
on the third step by one or two inches, all contrary to the
instructions.
During the one-leg stand test, Corporal Chang observed
that Joo was swaying left to right the entire time and that he
held his arms out about 18 to 20 inches, hopped, and his left
foot touched the ground, which was contrary to the instructions.
There was substantial evidence that Joo was under the
influence of alcohol in an amount sufficient to impair his normal
mental faculties or ability to care for himself and guard against
casualty while operating or assuming actual physical control of a
vehicle on a public way, street, road, or highway.
Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, filed on May 7,
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2019, in the District Court of the First Circuit, Honolulu
Division, is affirmed.
DATED: Honolulu, Hawai#i, March 31, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Samuel P. King, Jr.,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Loren J. Thomas,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge
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