State v. Kaluau 3rd

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2021
08:18 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOHN APELE KALUAU 3RD, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH & SOUTH KONA DIVISION
(CASE NO. 3DTC-18-051455)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

Defendant-Appellant John Apele Kaluau 3rd (Kaluau)
appeals from the Judgment and Notice of Entry of Judgment
(Judgment), entered on April 18, 2019, in the District Court of
the Third Circuit, North and South Kona Division (district
court).1/ After a bench trial, Kaluau was convicted of Driving a
Motor Vehicle without a License (DWOL), in violation of Hawaii
Revised Statutes (HRS) § 286-102(b) (Supp. 2017),2/ and Driving
Without Motor Vehicle Insurance (DWOMVI), in violation of HRS
§ 431:10C-104(a) (2005).3/

1/
The Honorable Margaret K. Masunaga presided.
2/
HRS § 286-102(b) provides, in relevant part: "A person operating
the following category or combination of categories of motor vehicles shall be
examined as provided in section 286-108 and duly licensed by the examiner of
drivers: . . . . (3) Passenger cars of any gross vehicle weight rating. . . ."
(Format altered.)
3/
HRS § 431:10C-104(a) provides: "Except as provided in section
431:10C-105, no person shall operate or use a motor vehicle upon any public
street, road, or highway of this State at any time unless such motor vehicle
is insured at all times under a motor vehicle insurance policy."
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On appeal, Kaluau contends that: (1) there was no
substantial evidence to support the DWOMVI conviction, because
Plaintiff-Appellee State of Hawai#i (State) failed to prove that
Kaluau drove on a public street, road or highway; and (2) the
district court conducted a deficient Tachibana4/ colloquy.
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
resolve Kaluau's contentions as follows:
(1) Kaluau argues that the State failed to prove every
material element of the alleged DWOMVI offense, because the State
did not elicit any evidence that Hawai#i Belt Road, where the
alleged offense occurred, is a "public street, road, or
highway."5/ HRS § 431:10C-104(a). Although Kaluau did not raise

4/
Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d 1293, 1303
(1995).
5/
HRS § 291E–1 (2007) states, in relevant part:
"Public way, street, road, or highway" includes:
(1) The entire width, including berm or shoulder, of
every road, alley, street, way, right of way,
lane, trail, highway, or bridge;

. . . .

(3) Any bicycle lane, bicycle path, bicycle route,
bikeway, controlled-access highway, laned
roadway, roadway, or street, as defined in
section 291C–1; or
(4) Any public highway, as defined in section 264–1.
HRS § 264–1 (Supp. 2017) states, in relevant part:

(a) All roads, highways, alleys, streets, ways, lanes,
bikeways, bridges, and all other real property highway
related interests in the State, opened, laid out,
subdivided, consolidated, and acquired and built by the
government are declared to be public highways. Public
highways are of two types:

(1) State highways, which are those lands,
interests, or other real property rights, as
defined above, having an alignment or possession
of a real property highway related interest as
established by law, subdivided and acquired in
accordance with policies and procedures of the
department of transportation, separate and
exempt from any county subdivision ordinances,
(continued...)

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this objection at trial, we may notice plain error for the first
time on appeal where the error violates a fundamental right, such
as the right to have all elements of an offense proven beyond a
reasonable doubt. See State v. Ui, 142 Hawai#i 287, 298, 418
P.3d 628, 639 (2018).
The State argues that this court can and must take
judicial notice that the section of Hawai#i Belt Road where the
alleged offense occurred is a public highway.

Hawai#i Rules of Evidence [HRE] Rule 201 governs
judicial notice of adjudicative facts; it provides
that "a judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of
the trial court, or (2) capable of accurate and ready
determination by resort to sources whose accuracy
cannot reasonably be questioned."

State v. Abdon, 137 Hawai#i 19, 26, 364 P.3d 917, 924 (2016)
(original brackets omitted) (quoting HRE Rule 201(b)). Under HRE
Rule 201(c), "[a] court may take judicial notice, whether
requested or not," of an adjudicative fact, and under HRE Rule
201(d), a court "shall take judicial notice" of an adjudicative
fact "if requested by a party and supplied with the necessary
information." (Emphases added.) Moreover, "a court may take
judicial notice 'at any stage of the proceeding,' including on
appeal[.]" Abdon, 137 Hawai#i at 27, 364 P.3d at 925 (quoting
HRE Rule 201(f)).
The State presented evidence at trial, through the
testimony of the citing officer, that the traffic stop that led
to the charged offenses occurred "on Hawaii Belt Road in the
vicinity of fronting this courthouse." In this appeal, the State
has submitted copies, attached to the State's answering brief,
of: (1) Hawai#i County Code §§ 24-253 through 24-263, which are
traffic schedules establishing speed limits for various streets,
roads, and highways in the County of Hawai#i, including Hawai#i

5/
(...continued)
and all those under the jurisdiction of the
department of transportation; and

2) County highways, which are all other public
highways.

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Belt Road; and (2) a Google Maps internet printout showing a
section of Hawai#i Belt Road adjacent to the courthouse formerly
located on Haukapila Street. See infra note 7. The State argues
that based on these documents, and pursuant to State v. Davis,
133 Hawai#i 102, 324 P.3d 912 (2014), this court should take
judicial notice of the fact that the alleged DWOMVI offense
occurred on a public highway.
In Davis, the defendant argued that no substantial
evidence supported his conviction of operating a vehicle after
license and privilege have been suspended or revoked for
operating a vehicle under the influence of an intoxicant, in
violation of HRS §§ 291E–62(a)(1) and/or (2) (2007), where the
State had failed to prove that the defendant had operated a
vehicle on a "public way, street, or highway." 133 Hawai#i at
104, 121–22, 324 P.3d at 914, 931–32. Testimony by the citing
officer established the location of the charged offense. Id. at
105, 324 P.3d at 915. The Hawai#i Supreme Court took judicial
notice of the fact that the section of road at issue was on a
"public highway," pursuant to a City and County of Honolulu
ordinance and speed schedule that designated that portion of the
road as a "public way," and HRS § 291E–1. Id. at 122, 324 P.3d
at 932. On this basis, the court concluded that sufficient
evidence was adduced to prove that the defendant operated his
vehicle on a "public way." Id.
Here, one of the traffic schedules supplied by the
State, Hawai#i County Code § 24-255(f), lists speed limits for
Hawai#i Belt Road, but it does not explicitly identify that road
as a "public highway" or "public way." However, the State also
argues that the section of Hawai#i Belt Road where the alleged
offense occurred is listed as a public road or highway by the
State Department of Transportation (DOT). In fact, the DOT's
website contains a list of "Big Island State Roads and Highways,"
which includes "Route 11, Hawaii Belt Road, [from its]
[i]ntersection with Route 19 [in Hilo] to Kailua Kona."6/ DOT,

6/
This list can also be accessed by clicking on the DOT website link
"Roads and Highways on the Big Island Under State Jurisdiction." See DOT,
(continued...)

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Big Island State Roads and Highways, https://hidot.hawaii.gov/
highways/home/hawaii/state-roads-and-highways/ (last visited
June 16, 2021). Under HRS § 291E-1(4), a "[p]ublic way, street,
road, or highway" includes "[a]ny public highway, as defined in
section 264–1[,]" and under HRS § 264–1(a)(1), "[p]ublic
highways" include "[s]tate highways . . . under the jurisdiction
of the [DOT.]" If the section of Hawai#i Belt Road where the
alleged offense occurred was located on the section identified in
the DOT's list, we may take judicial notice of the fact that the
alleged offense occurred on a "public highway." See Davis, 133
Hawai#i at 122, 324 P.3d at 932; Botelho v. Atlas Recycling Ctr.,
LLC, 146 Hawai#i 435, 447 n.9, 463 P.3d 1092, 1104 n.9 (2020)
(taking judicial notice of information on a government website,
as it is "capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned[]"
(quoting HRE Rule 201)); Sierra Club v. D.R. Horton-Schuler
Homes, LLC, 136 Hawai#i 505, 518 n.5, 364 P.3d 213, 226 n.5
(2015) (same).
As discussed above, at trial, the citing officer
testified that he stopped Kaluau "on Hawaii Belt Road in the
vicinity of fronting this courthouse." This court takes judicial
notice of the fact that when the officer testified, the Kona
District Courthouse was located at 79-1020 Haukapila Street,7/
which intersects with Hawai#i Belt Road in the vicinity of the
courthouse, in the section of Hawai#i Belt Road that stretches
from its intersection with Route 19 in Hilo to Kailua-Kona. See
State v. Puaoi, 78 Hawai#i 185, 191, 891 P.2d 272, 278 (1995)
(holding that "geographical facts, such as whether a particular
address is within a certain city and county of the state, is a
proper matter subject to judicial notice"); State v. Akau, 118

6/
(...continued)
Hawaii, https://hidot.hawaii.gov/highways/home/hawaii/ (emphasis added).
7/
The former location of the courthouse is judicially noticeable as
it is "generally known within the territorial jurisdiction of the trial
court." HRE Rule 201(b). As of September 3, 2019, the courthouse has
relocated to 74-5451 Kamakaeha Avenue in Kailua-Kona. See https://www.courts.
state. hi.us/news_and_reports/2019/08/new-keahuolu-courthouse-opens-
september-3.

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Hawai#i 44, 57, 185 P.3d 229, 241 (2008) (taking judicial notice
of the distance between the Daiei store and the place where the
search warrant was executed). Accordingly, we take judicial
notice of the fact that the section of Hawai#i Belt Road where
the alleged offense occurred was on a "public highway" pursuant
to HRS § 291E-1(4) and HRS § 264–1(a)(1). See Davis, 133 Hawai#i
at 122, 324 P.3d at 932. Therefore, sufficient evidence was
adduced to prove that Kaluau operated his vehicle on a "public
way."
(2) Kaluau also contends that the district court's
Tachibana colloquy, conducted before the start of trial and again
before the defense rested, was defective.
In State v. Martin, 146 Hawai#i 365, 378-79, 463 P.3d
1022, 1035-36 (2020), the Hawai#i Supreme Court summarized the
relevant case law as follows:

Our law protects both the right to testify and
the right not to testify. State v. Celestine, 142
Hawai#i 165, 169, 415 P.3d 907, 911 (2018). Tachibana
v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995),
established the requirement that when a defendant in a
criminal case indicates an intention not to testify,
the trial court must advise the defendant of the right
to testify and must obtain an on-the-record waiver of
the right. 79 Hawai#i at 236, 900 P.2d at 1303. We
stated that this advisement should consist of
informing the defendant (1) that they have a right to
testify, (2) that if they want to testify, no one can
prevent them from doing so, and (3) that if they
testify, the prosecution will be allowed to
cross-examine them. 79 Hawai#i at 236 n.7, 900 P.2d
at 1303 n.7. We also stated that in connection with
the privilege against self-incrimination, the
defendant should also be advised (4) that they have a
right not to testify and (5) that if they do not
testify, then the jury can be instructed about that
right. Id. (citations omitted). In 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. Monteil, 134
Hawai#i 361, 371-72, 341 P.3d 567, 577-78 (2014).

After Tachibana, we also held that a second
component of the Tachibana colloquy involves the court
engaging in a true "colloquy" with the defendant.
Celestine, 142 Hawai#i at 170, 415 P.3d at 912, citing
State v. Han, 130 Hawai#i 83, 90-91, 306 P.3d 128,
135-36 (2013). This requires "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.'"
Celestine, 142 Hawai#i at 170, 415 P.3d at 912 (citing

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Han, 130 Hawai#i at 90, 306 P.3d at 135 (emphasis
omitted)).
. . . .
A defendant's right to testify is violated when
the colloquy does not establish "an objective basis
for finding that [the defendant] knowingly,
intelligently, and voluntarily gave up" their right to
testify. Han, 130 Hawai#i at 91, 306 P.3d at 136.
Courts look to the totality of the facts and
circumstances to determine whether a waiver of the
right to testify was voluntarily and intelligently
made. 130 Hawai#i at 89, 306 P.3d at 134.

146 Hawai#i at 378-79, 463 P.3d at 1035-36 (footnotes omitted).
Additionally, in State v. Lewis, 94 Hawai#i 292, 12
P.3d 1233 (2000), the supreme court adopted a prospective
requirement that, "prior to the start of trial, trial courts must
'(1) inform the defendant of his or her personal right to testify
or not to testify and (2) alert the defendant that if he or she
has not testified by the end of the trial, the court will briefly
question the defendant to ensure that the decision not to testify
is the defendant's own decision.'" State v. Monteil, 134 Hawai#i
361, 371, 341 P.3d 567, 577 (2014) (quoting Lewis, 94 Hawai#i at
297, 12 P.3d at 1238); see also id. at 373, 341 P.3d at 579
(adopting a prospective rule that trial courts are required to
inform defendants during the Lewis advisement that the decision
not to testify cannot be used by the fact finder to decide the
case).
Kaluau first argues that the district court's pre-trial
advisement was defective under Lewis because the court did not
inform Kaluau that if he did not testify by the end of the trial,
the court would briefly question him to ensure that the decision
not to testify was his own.
Prior to trial, the district court engaged in the
following colloquy with Kaluau:

THE COURT: . . . .
And I'm going to give Mr. Kaluau his advisement of
rights. It's what we refer to as the Tachibana colloquy.
So, Mr. Kaluau, do you understand that you have a
constitution[al] right to testify in your own defense? Do
you understand that?
THE DEFENDANT: Yeah.

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THE COURT: Yes? Okay. And do you understand if you
want to testify no one can prevent you from doing so. You
understand?

THE DEFENDANT: Yeah.
THE COURT: Okay. And that if you testify the
Prosecuting Attorney . . . will be allowed to cross-examine
you. You understand? Yes?

THE DEFENDANT: Yeah.
THE COURT: You nodded your head, okay.

And you understand your Constitutional right to
testify in your own defense is your decision. And no one
can force you to testify.
THE DEFENDANT: My Constitutional right as an American
or as a Hawaiian Kingdom subject?
THE COURT: As a person.

THE DEFENDANT: As a person?

THE COURT: Okay. You understand? Yes?

THE DEFENDANT: Yes.
THE COURT: Okay. And you understand that your
Constitutional right not to testify and to remain silent,
that is also your choice and the Court cannot hold that
against you. You understand?

THE DEFENDANT: Yeah.
THE COURT: Yes? Okay.

THE DEFENDANT: Yes.
THE COURT: Okay. So do you have any questions?

THE DEFENDANT: No.

Although this colloquy was extensive, it did not inform
Kaluau that if he did not testify by the end of the trial, the
court would briefly question him to ensure the decision not to
testify was his own. Because Lewis requires this advisement, its
omission was error.
"[A] court's failure to properly deliver the pretrial
advisement is subject to the actual prejudice standard so long as
the trial court subsequently engages the defendant in the
ultimate Tachibana colloquy. When the ultimate colloquy is not
given, however, a Lewis violation is evaluated under the harmless
beyond a reasonable doubt standard." State v. Torres, 144
Hawai#i 282, 291 n.10, 439 P.3d 234, 243 n.10 (2019) (construing

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Lewis, 94 Hawai#i at 297, 12 P.3d at 1238, and Tachibana, 79
Hawai#i at 237, 240, 900 P.2d at 1304, 1307).
Here, the ultimate colloquy was given, though Kaluau
was not fully "engaged," as he chose not to cooperate in
responding to many, though not all, of the district court's
questions. See infra. Kaluau did not establish that he suffered
actual prejudice as a result of the district court's failure to
alert him that if he did not testify by the end of the trial, the
court would briefly question him to ensure the decision not to
testify was his. The district court in fact did question Kaluau
before the end of the trial for that purpose, and as discussed
infra, Kaluau affirmed that he would preserve his right not to
testify, and understood that the court would not hold that choice
against him. See State v. Deming, No. CAAP-XX-XXXXXXX, 2017 WL
2364743, at * 1 (Haw. App. May 31, 2017) (SDO) (rejecting the
defendant's claim that his pre-trial Tachibana colloquy was
inadequate for failure to warn him that he would again be
questioned prior to the end of trial, where the district court
questioned the defendant prior to the end of trial to ensure that
it was his decision not to testify).
Moreover, we conclude that the error at issue was
harmless. "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. Joo, No. CAAP-XX-XXXXXXX, 2021 WL
1233382, at *2 (Haw. App. Mar. 31, 2021) (quoting State v.
Adcock, 148 Hawai#i 308, 316, 473 P.3d 769, 777 (2020)).

[T]he pretrial advisement was implemented because it would
have 'the beneficial effect of limiting any post-conviction
claims that a defendant testified in ignorance of his or her
right not to testify,' . . . Lewis, 94 Hawai #i [at] 297, 12
P.3d [at] 1238 . . ., and would lessen the risk that the
ultimate colloquy would inadvertently affect the defendant's
right not to testify, Tachibana, 79 Hawai#i at 237 n.9, 900
P.2d at 1304 n.9.

State v. Eduwensuyi, 141 Hawai#i 328, 335 n.9, 409 P.3d 732, 739
n.9 (2018); see State v. Han, 130 Hawai#i 83, 89, 306 P.3d 128,
134 (2013)). Here, Kaluau decided not to testify, thus waiving
his right to testify; inasmuch as the pre-trial advisement was
deficient with respect to Kaluau's right not to testify, the

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error is not related to the right waived, and the error is thus
harmless. In addition, even if the error were related to the
right waived, i.e., the right to testify, the error would still
be harmless in this circumstance, because the district court did
in fact question Kaluau before the end of the trial to ensure
that any decision not to testify was his. See infra.
Kaluau next argues that the district court's ultimate
Tachibana colloquy was defective because it was not given
immediately before the defense rested, i.e., after all defense
witnesses had testified, and because the trial court did not
elicit affirmative responses from Kaluau.
As to the timing of the ultimate colloquy, it appears
that on March 29, 2019, defense counsel suggested that the court
conduct the colloquy, after Kaluau's motion for judgment of
acquittal had been denied. At that time, the following exchange
occurred:

THE COURT: . . . So Court is denying your motion for
judgment of acquittal.
Do you have any further arguments you wanna present in
case I change my mind on what I just said?

[DEPUTY PROSECUTING ATTORNEY (DPA)]: I have no
further arguments, Your Honor.
[DEFENSE COUNSEL]: No, Your Honor. Did the Court
want to advise him at this time about his right to testify?

THE COURT: Okay. . . .

It also appears that when defense counsel suggested
that the court conduct the ultimate colloquy, counsel did not
intend to call any witnesses, but following the colloquy, counsel
changed his mind. At that time, this discussion occurred:

THE COURT: . . . .
. . . So closing arguments?

. . . .
THE COURT: Or . . . do you have any witnesses?

[DEFENSE COUNSEL]: No, there's --
. . . .
[DEFENSE COUNSEL]: -- no further witnesses.

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THE COURT: Okay. So, um, you wanna go ahead and do
your closing arguments?

. . . .
[DEFENSE COUNSEL]: Actually, uh, I'm sorry, Your
Honor. May I . . . have just one --

THE COURT: Sure.

[DEFENSE COUNSEL]: -- second to consult further?
Your Honor, the Defense would call Thomas Anthony.

Following the brief testimony of this one witness, the defense
stated that it had no other witnesses. Defense counsel then
asked the district court to take under advisement the issue of
whether the alleged offense occurred in the County and State of
Hawai#i, before the court issued its decision. The court
indicated that it would review the trial transcripts and ordered
the parties to return on April 18, 2019.
On April 18, 2019, the court announced that it had
reviewed the trial tapes and had determined that the citing
officer had testified that he was in the County and State of
Hawai#i when he stopped Kaluau. The court then reviewed its
notes to determine whether closing arguments had occurred, and
asked defense counsel, "[D]oes your client have any other, um,
witnesses other than, uh, we had Thomas Anthony[?]" Defense
counsel then stated, apparently to Kaluau, "You don't need to
testify do you?" Kaluau responded, "No, I-" and the court noted
that it had already questioned Kaluau regarding not testifying.
Under these circumstances, we conclude that the
district court did not err in conducting the ultimate colloquy
when it did. See Tachibana, 79 Hawai#i at 237 n.9, 900 P.2d at
1304 n.9 ("[T]he trial court judge cannot independently foresee
when the defense is on the verge of resting and conduct the
colloquy at that precise moment. Consequently, the trial courts
will require the cooperation of defense counsel to enable them to
conduct the colloquy immediately prior to the close of the
defendant's case.")
As to the substance of the ultimate colloquy, the
district court engaged in the following exchange with Kaluau:

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THE COURT: . . . Mr. Kalua'u, . . . right now I have
to ask you and, um, need your answers, um, so that you
understand that you have a right to testify. You
understand?
THE DEFENDANT: Uh, no comment.
THE COURT: Okay. And if you want to testify no one
can prevent you from doing so. You understand?

THE DEFENDANT: No comment.
THE COURT: You understand that if you testify the
prosecutor can cross-examine you. You understand?
THE DEFENDANT: No comment.
THE COURT: And you understand that if you -- you also
have a right not to testify, and if you do not testify the
Court cannot hold your silence against you. You understand?

THE DEFENDANT: Uh, no comment.
THE COURT: Do you understand what I'm saying though?
Do you understand --

THE DEFENDANT: Oh, yeah. I just wanna --
THE COURT: -- the English language?
THE DEFENDANT: -- address the Court. I the house of
nobles for the Ka'u district, district 7, and I'm here for
the acquittal today and nothing else. I have no comment.
THE COURT: Okay. So you do have a right to take the
stand, and if you take the stand the prosecutor . . . would
be allowed to cross-examine you. You understand that?

THE DEFENDANT: Yeah, no comment.
THE COURT: Okay. So what is your decision? Do you
want to testify today? Do you wanna take the stand and
testify and be sworn in?
THE DEFENDANT: Uh, no comment. This the second time
I'm here for acquittal. Last month and this --
THE COURT: Okay, but we're here --

THE DEFENDANT: -- month.
THE COURT: We're -- we're gonna finish the trial so
right now we're at a point where, um --
THE DEFENDANT: Well --
THE COURT: -- I need to find out if you're going to
testify or not.

THE DEFENDANT: I rest.
THE COURT: Okay. So you will not be testifying?
THE DEFENDANT: Yeah.

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At this point, the DPA reminded the district court that
"the Tachibana colloquy requires that [Kaluau] . . . understands
. . . his rights, and [Kaluau] is . . . frustrating the court
process by refusing to answer the questions." The district court
then attempted to repeat the colloquy, during which this exchange
occurred:

THE COURT: . . . .
So I need to ask you again do you understand your
right to testify and your right not to testify? You
understand?
THE DEFENDANT: I rest.

. . . .

THE COURT: . . . I do need to get answers about
whether you understand your constitutional right to testify.

THE DEFENDANT: Well, I have --
THE COURT: You understand?

THE DEFENDANT: -- no comment.
THE COURT: So if you decide not to testify and you
remain silent, uh, the Court won't hold that -- your silence
against you. You understand that? I'm not gonna hold your
silence against you.
THE DEFENDANT: No comment.

THE COURT: So are you going to take the stand and
testify or are you gonna, um, sit down and remain silent and
not testify?
THE DEFENDANT: Remain silent. No comment.

. . . .
THE COURT: Okay. So the Court by what Mr. Kalua'u
has said he does not wanna take the stand. He does not
wanna be sworn in and be cross-examined, and he's gonna
preserve his right not to testify and remain silent and I
will not hold that against you. You understand?
THE DEFENDANT: Yeah.

(Emphases added.) Following this exchange, the district court
found that Kaluau had chosen not to testify and, based on his
answers, Kaluau's waiver of his right to testify was voluntary,
intelligent and knowing.
We look to "the totality of the facts and
circumstances" to determine whether Kaluau's waiver of his right

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to testify was voluntarily and intelligently undertaken. Han,
130 Hawai#i at 89, 306 P.3d at 134 (quoting State v. Friedman, 93
Hawai#i 63, 66-67, 996 P.2d 268, 273-74 (2000)); see also
Eduwensuyi, 141 Hawai#i at 335 n.10, 409 P.3d at 739 n.10 ("Our
analysis is not meant to indicate that a pretrial colloquy cannot
be considered as part of the totality of facts and circumstances
in an evaluation of whether a particular defendant's waiver was
knowing and voluntary.") We first note that, based on various
statements made by Kaluau during trial, he had a good command of
English and did not require an interpreter. Cf. Han, 130 Hawai#i
at 92, 306 P.3d at 137 ("The language barrier in this case was a
'salient fact' that impacted Petitioner's ability to understand
the rights that he waived." (citing State v. Barros, 105 Hawai#i
160, 170, 95 P.3d 14, 24 (App. 2004))). Indeed, Kaluau expressed
familiarity with certain legal principles, including his right to
counsel, and "[his] Constitutional right [to testify] as an
American or as a Hawaiian Kingdom subject[.]" Additionally,
there is no indication in the record that Kaluau suffered from
mental illness or impaired faculties. See id. ("'Salient facts,'
such as mental illness or language barriers, require that a court
effectively engage the defendant in a dialogue that will
effectuate the rationale . . . set forth in Tachibana.")
In this context, the district Court engaged Kaluau in a
true pre-trial colloquy regarding his rights to testify and not
to testify. In response to the court's questioning, Kaluau
affirmed that he understood that: (1) he had a constitutional
right to testify in his own defense; (2) if he wanted to testify
no one could prevent him from doing so; (3) if he testified, the
prosecuting attorney would be allowed to cross-examine him; (4)
his constitutional right "as a person" to testify in his own
defense was his own decision, and no one could force him to
testify; and (5) his constitutional right not to testify and to
remain silent was his choice, and the district court could not
hold that against him. Kaluau then responded "[n]o" when asked
if he had any questions. For the reasons previously discussed,
we have concluded that the district court's error in delivering
the pretrial advisement — by failing to inform Kaluau that if he

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did not testify by the end of the trial, the court would briefly
question him to ensure that the decision was his — was harmless.
After the State completed its case in chief, the
district court again advised Kaluau of his rights to testify and
not to testify, as required by Tachibana. Given the absence of a
language barrier or mental illness, and in light of the pre-trial
colloquy that had occurred, the record indicates that Kaluau
still understood his rights when he was again advised of them
during the ultimate colloquy. In this regard, there is also
nothing in the record indicating that Kaluau did not understand
his rights. Nevertheless, it appears that Kaluau chose not to
cooperate in responding to many of the district court's
questions, stating at one point, "I'm here for the acquittal
today and nothing else. I have no comment." In fact, Kaluau
simply responded, "no comment" or "I rest," to most of the
court's questions. It is significant, however, that during the
ultimate colloquy, Kaluau affirmed that he understood what the
district court was saying to him, and that at the end of the
colloquy, when asked if "[he was] going to take the stand and
testify or . . . sit down and remain silent and not testify?" he
responded, "Remain silent. No comment." Importantly, Kaluau
also responded affirmatively to the following statement and
question by the district court: "So the Court by what Mr.
Kalua'u has said he does not wanna take the stand. He does not
wanna be sworn in and be cross-examined, and he's gonna preserve
his right not to testify and remain silent and I will not hold
that against you. You understand?"
Based on the "the totality of the facts and
circumstances" in this case, as reflected in the entire record,
we conclude that the district court's ultimate Tachibana colloquy
with Kaluau was sufficient. When that colloquy is evaluated in
conjunction with the court's pretrial colloquy and relevant
circumstances, the record firmly establishes that Kaluau
understood his rights to testify and not to testify and that he
did not wish to testify. We further conclude that the record
provides an objective basis for the district court's finding that
Kaluau made a voluntary, intelligent and knowing decision not to

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testify. Given the record, we reject Kaluau's challenge to the
Tachibana colloquy in this case.
Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment, entered on April 18, 2019, in the
District Court of the Third Circuit, North and South Kona
Division, is affirmed.

DATED: Honolulu, Hawai#i, June 28, 2021.

On the briefs:
/s/ Katherine G. Leonard
William K. Li Presiding Judge
for Defendant-Appellant.
Stephen L. Frye, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
County of Hawai#i,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge

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