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                                                                   Electronically Filed
                                                                   Supreme Court
                                                                   SCWC-XX-XXXXXXX
                                                                   28-JUN-2019
                                                                   12:33 PM




              IN THE SUPREME COURT OF THE STATE OF HAWAI I

                                ---o0o---
    ________________________________________________________________

                              STATE OF HAWAI I,
                       Respondent/Plaintiff-Appellee,

                                        vs.

                           DAVIS YEN HOY CHANG,
                     Petitioner/Defendant-Appellant.
    ________________________________________________________________

                                SCWC-XX-XXXXXXX

            CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CASE NO. 1DTA-16-04150)

                                 JUNE 28, 2019

                OPINION OF THE COURT BY RECKTENWALD, C.J.1



1
      Chief Justice Recktenwald writes for the court, except with respect to
whether, prospectively, trial courts may consolidate hearings on motions to
suppress evidence with trials. With respect to that issue, Justice Pollack
writes for the majority of the court, and Chief Justice Recktenwald
respectfully dissents.
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                              I.   INTRODUCTION

            This case requires us to consider the advisements that

a trial court provided a defendant with regard to the right to

testify, when the court consolidated a suppression motion with

the trial on the merits.

            Davis Yen Hoy Chang (Chang) was charged with Operating

a Vehicle Under the Influence of an Intoxicant (OVUII).2               Chang

filed a motion to suppress statements that he allegedly made to

the police officer who arrested him.          The District Court of the

First Circuit consolidated the hearing on Chang’s motion to

suppress with his bench trial, and provided Chang with several

advisements about his right to testify.           Chang declined to

testify.    The district court granted the suppression motion in

part, but found Chang guilty.         After unsuccessfully appealing to

the Intermediate Court of Appeals (ICA), Chang timely filed an

application for writ of certiorari with this court.

            We conclude that the district court erroneously advised

Chang with regard to his right to testify in the context of a

consolidated suppression hearing and trial.            Accordingly, we


2
      Hawaii Revised Statutes (HRS) § 291E-6 1(a)(1) (2007) provides: “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[ w]hile 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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vacate his conviction, and remand the case for further

proceedings.

                              II.   BACKGROUND

A.   District Court Proceedings

     1.    Preliminary Matters

           Chang was charged by complaint with OVUII.             Chang filed

motions to suppress all verbal and non-verbal statements that he

made after he was pulled over by Honolulu Police Department

Officer Jared Spiker (Officer Spiker) and prior to his arrest,

including his performance on the standardized field sobriety test

(SFST).

      2.    Consolidated Suppression Hearing and Bench Trial

           At the outset of the proceeding, the court asked

defense counsel if counsel was going to consolidate the hearing

on the motion to suppress with the bench trial.             The district

court3 engaged Chang as follows:

           The Court:   Mr. Chang, based on what your attorney is
                        saying, it’s my understanding that we’re
                        going to consolidate this motion with the
                        trial[.] [I]s that your understanding as
                        well?

           Chang:       Correct.

           The Court:   And that’s what you want to do today?


3
     The Honorable Trish K. Morikawa presided.

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            Chang:       Correct.

            The Court:   Okay. So then, since we’re ultimately
                         doing a trial, I’m going to go through my
                         [] trial questions.

            After the district court asked Chang preliminary

questions regarding a proposed plea agreement, Chang pled not

guilty.   The district court then accepted the parties’

stipulations, for the purposes of both the suppression motion and

trial, that Officer Spiker was trained, experienced, and

qualified to administer and evaluate SFSTs; would testify only as

a lay witness; would not testify about the horizontal gaze

nystagmus (HGN) portion of the SFST; and would not make legal

conclusions as to whether Chang had passed or failed any portions

of the SFST.

            The district court informed Chang of his right to

testify and his right not to testify at trial4 as follows:

            The Court:   [S]ince we’re doing this as a . . .
                         consolidated trial, I have to inform you,
                         Mr. Chang, you have the constitutional

4
       This pre-trial advisement is required by State v. Monteil, 134 Hawaii
361, 371, 341 P.3d 567, 577 (2014), and State v. Lewis, 94 Hawaii 292, 297,
12 P.3d 1233, 1238 (2000). “[P]rior to the start of trial, the court shall []
inform the defendant of [the] personal right to testify or not to testify and
[] alert the defendant that, if [the defendant] 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. Han,
130 Hawaii 83, 89, 306 P.3d 128, 134 (2013) (citing Lewis, 94 Hawaii at 297,
12 P.3d at 1238). The court must also advise the defendant at this time that
the defendant’s exercise of the right not to testify may not be used by the
fact finder when determining the defendant’s innocence or guilt. Monteil, 134
Hawaii at 373, 341 P.3d at 579.

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                        right to testify in your own defense.   Do
                        you understand that?

          Chang:       Yes, I do.

          The Court:   Okay. Although you should consult with
                       your attorney regarding the decision to
                       testify, it is your decision and no one
                       can prevent you from testifying should you
                       . . . choose to do so; do you understand?

          Chang:       I do.

          The Court:   Okay. If you decide to testify, the
                       prosecutor will be allowed to cross-
                       examine you; do you understand?

          Chang:       I do understand that.

          The Court:   Okay. You also have a constitutional
                       right not to testify and to remain silent.
                       Do you understand that as well?

          Chang:       Yes.

          The Court:   Okay. If you choose not to testify, the
                       court cannot hold your silence against you
                       in deciding your case; do you understand?

          Chang:       Yes.

                        . . . .

          The Court:   Do you have any questions about what I
                       have explained?

          Chang:       No, I do not.

          The State called Officer Spiker as its sole witness for

the purposes of both the suppression motion and the trial.

          a.       Officer Spiker’s Testimony

          Officer Spiker testified that at approximately 1:10

a.m. on November 13, 2016, he noticed Chang driving without

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illuminated headlights.       Officer Spiker observed Chang make an

illegal left turn at an intersection with “at least two signs

that [said] no left turn.”        Officer Spiker followed Chang and

pulled him over.

            Officer Spiker testified that as soon as he began

conversing with Chang, who had been driving alone, he smelled a

“strong odor of alcohol” coming from Chang’s breath.              He also

noticed that Chang’s eyes were “red, watery, and glassy,” that

Chang’s face was flushed, and that Chang’s speech was slurred.

            Officer Spiker asked for Chang’s driver’s license,

registration, and insurance, which Chang provided without

difficulty or delay.      Officer Spiker informed Chang that he had

been pulled over because of his driving infractions and offered

Chang an SFST.5     At Officer Spiker’s request, Chang exited his

vehicle without difficulty.        Officer Spiker testified that at

this point, Chang “was not free to leave.”

            Officer Spiker testified that Chang agreed to

participate in the SFST and stated “that he had [had] some drinks


5
      On cross-examination, Officer Spiker explained that although he told
Chang that participation in the SFST was “voluntary,” he did not specifically
tell Chang that he had “the right to refuse” the test. Officer Spiker
explained, “I didn’t, like, demand he get out [of the vehicle] but I just kind
of said, . . . [I’m] going to offer you [an SFST] . . . based on your traffic
violations and indicia of alcohol, and if you’d like to participate, and then
he said yeah, he would.”

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earlier.”    After Chang answered “no” to each of the medical rule-

out questions posed by Officer Spiker, Officer Spiker

administered the SFST.      The SFST consisted of the HGN test, the

walk-and-turn test, and the one-leg-stand test.            Officer Spiker

testified that Chang did not perform the walk-and-turn test or

the one-leg-stand test as instructed.          With respect to the walk-

and-turn test, Officer Spiker noted that Chang started the test

before being instructed to do so; missed numerous heel-to-toe

steps; stepped off the line three times; and turned the wrong way

without the required pivot.       With respect to the one-leg-stand

test, Officer Spiker noted that Chang’s right foot touched the

ground multiple times during the balancing sets; Chang did not

look at his foot throughout the sets despite instructions to do

so; Chang skipped numbers as he counted; and Chang was “swaying

noticeably.”

            Officer Spiker further testified that throughout the

SFST, Chang was argumentative, interrupted him, and asked him at

least five times why he pulled Chang over, despite his repeated

explanations.    Officer Spiker also testified that, at some point

during the SFST, Chang was offered a preliminary alcohol

screening device test (PAS), but refused the PAS because he said

“he didn’t trust it.”

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           Officer Spiker testified that he arrested Chang for

OVUII, in light of the totality of the circumstances.                He

explained that he considers the “totality of the circumstances”

when deciding whether to arrest someone for OVUII, including the

amount of traffic violations observed, indicia of intoxication,

and an individual’s demeanor, SFST performance, and abilities to

cooperate and follow instructions.         Officer Spiker also testified

that he did not at any point advise Chang regarding the right to

remain silent.

           b.    Hearing on the Motion to Suppress

           After Officer Spiker testified, the district court

addressed Chang’s motion to suppress.          The following discussion

took place, wherein defense counsel initially indicated that

Chang intended to testify for purposes of the suppression

hearing:

           The Court:   Why don’t we do the argument on the motion
                        . . . first, okay? . . . . [W]ell, even
                        before then, did you want to have anyone
                        [] testify in regard to the motion? . . .
                        [I]f you’re going to have [Chang] testify
                        in regard to the motion, I need to know[.]

                        . . . .

                        Wait. This is going to get a little
                        confusing since we’re doing the motion
                        combined with the trial. So I’m going to




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                         Tachibana[6] him a second time – okay.
                         Wait. So the State has no further
                         witnesses. You’re saying for purposes of
                         this motion you may have a witness?

            Defense:     Only [Chang].   Only for purposes of this
                         motion.

(Emphasis added).

            The district court proceeded to advise Chang that any

testimony offered at the suppression hearing would be considered

for the purposes of trial:

            The Court:   [S]ince we’re doing it as a consolidation
                         we kind of have to do it together so I’m
                         going to Tachibana him[.] . . . [W]e’ll do
                         that but I’m feeling like I’m skipping
                         steps because you still didn’t make your
                         motion and we still didn’t – okay. Let me
                         just Tachibana him because if you’re going
                         to have him testify for purposes of the
                         motion we gotta have that on the – okay.

            The State:   I’m sorry, your honor, to interfere but
                         because this was consolidated, [] I would
                         assume if he testifies it’s going to be []
                         part of the trial.

            The Court:   [T]hat’s the problem is if [Chang]’s going
                         to testify it’s also – since we’re
                         consolidating it, it’s part of the trial
                         as well.

            Defense:     Right.   And we can stipulate that we’ll

6
      In Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293, 1303 (1995),
we held that trial courts must advise criminal defendants of the right to
testify and, where a defendant chooses not to testify, the trial court must
obtain an on-the-record waiver of that right. This on-the-record waiver
serves as an assurance that the defendant was aware of the right to testify
and that the defendant’s waiver of that right was knowing, voluntary, and
intelligent. Id. at 234-37, 900 P.2d at 1301-04. Further, in State v.
Torres, 144 Hawaii 282, 285, 439 P.3d 234, 237 (2019), we made clear that
“trial courts must engage the defendant in an on-the-record colloquy regarding
the right to testify and to not testify when either right is waived,
effectively making such a colloquy necessary in every [criminal] trial.”

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                   limit the questioning to the motion issue
                   because I’m not having him go into
                   particular details. And so sometimes
                   there’ll be a stipulation with the State
                   that we’ll just limit the questioning to
                   the motion and –

      The Court:   See, I don’t know how we can do that since
                   we’re consolidating it.

      Defense:     Well, that’s more for efficiency
                   purposes[.] . . . If we consolidate, it
                   just means we don’t want to have a
                   separate hearing on the motions and a
                   trial another day, so for efficiency
                   purposes . . . we’re consolidating
                   everything so we don’t have to have
                   multiple hearings on multiple dates.

      The Court:   Right. But what he testifies to I’m going
                   to listen to it and decide in regard to
                   the trial as well. You see what I mean?

                   . . . .

                   So, . . . even if you’re limiting it to
                   just the motion, whatever he gets up on
                   the stand to [say], I’m going to actually
                   have to decide on it for the trial.

      Defense:     Understood. But there’s an understanding
                   with the State that we’re limiting the
                   questioning to the motion as . . . it
                   relates to the motion[.] . . . [T]hat’s
                   how . . . historically we’ve done it, we
                   limit the question to the motion, we’re
                   not going to go into, I guess, drinking
                   alcohol, that sort of thing, or if it
                   existed or not. I’m just focusing on the
                   interaction between him and the officer as
                   to the ordering out, the consent, [the]
                   voluntariness of [] the [SFST] and any
                   statements, you know.

      The Court:   Okay. But the court’s going to listen to
                   all of that [testimony] and use all of
                   that in determining for the trial
                   [Chang’s] guilt or innocence as well.

                   . . . .

                   Because if [Chang] doesn’t want to
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                   testify, I want to make sure he has that
                   right not to testify. But if he testifies
                   for purposes of the motion, then we’re
                   kind of stuck at that point since we’re
                   consolidating the motion and the trial, so
                   I can’t unhear what I’ve heard. I mean, I
                   guess . . . I technically could but it’d
                   be . . .

      Defense:     Hard.

                   . . . .

      The Court:   I mean, but it’s your choice. So if you
                   want to, you can put [Chang] on, but I’m
                   just trying to say, since we’re doing this
                   as a consolidated hearing, whatever he’s
                   saying in the motion, technically since
                   we’re consolidating it, I don’t know how -
                   - I can’t use that for the trial.

                   . . . .

      The State:   Or, your honor, I know the court already
                   kind of consolidated the hearing and the
                   trial but if defense is going to have his
                   witness testify for the purposes of the
                   motion, we don’t necessarily have an
                   objection as to separating it for trial
                   purposes.

                   . . . .

                   So if that’s what defense counsel wants to
                   do, [] maybe there was a . . .
                   misunderstanding.

                   . . . .

      The Court:   So if you want to put [Chang] on just for
                   purposes of the motion, so then
                   technically I guess we’re not
                   consolidating, okay, so we have to go
                   backwards. [Be]cause if we’re not going
                   to consolidate it, I mean, we’re
                   consolidating [Officer Spiker’s] portion
                   of the testimony but not [Chang’s] portion
                   of the testimony because he always has the
                   right to remain silent for trial.

      Defense:     Correct.
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          The Court:   Okay. And if there is a separate motion
                       and the [] trial, like I said, I can put
                       [] aside whatever [Chang] said, but since
                       it was the agreement to consolidate, then
                       I couldn’t. So if you want to do the
                       separate motion now and keep it separate
                       and then do the trial portion in regard to
                       your client, it’s a little strange for me,
                       but I can do that, if that’s what you want
                       to do.

(Emphases added).

          The district court then recessed so that Chang could

discuss with defense counsel whether he would testify on his

motion to suppress and bifurcate the hearing on the motion from

the trial.   After reconvening, however, the district court

attempted to correct its prior statements about Chang’s inability

to testify solely for the purposes of the motion:

          The Court:   So I just want to make everything clear []
                       [be]cause you threw me for a loop, Mr.
                       Lewis, saying that [Chang] wanted to
                       testify [for purposes of the motion to
                       suppress]. It’s very rare that it happens
                       in a motion to suppress so I had to
                       rethink everything, since it was a
                       consolidated hearing.

                       [J]ust so that we’re clear, if [Chang]
                       wants to testify for the motion to
                       suppress, he has that right, [] but I’d
                       have to [] bifurcate, instead of
                       consolidating it[.] . . . So he has the
                       right to testify for the motion. I . . .
                       won’t Tachibana him. I can listen to him
                       testify for the motion and then I can
                       rule[.]

                       . . . .

                       [I]f you consolidate the testimony of
                       [Officer Spiker], then at that point if
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                   you wanted to make any motions, you can
                   make any motions at that point and then
                   [Chang] could decide if he wants to
                   testify for purposes of trial.

                   . . . .

                   Okay? And then any testimony that [Chang]
                   made for purposes of the motion the court,
                   only if he wanted to, would the court then
                   decide, you know, if he wants to testify,
                   then we can decide whether or not . . .
                   what he testified to earlier in the motion
                   would be consolidated or not or if he
                   wanted to add to it or things like that.
                   Okay. So it’s two separate rights. So I
                   don’t want him to think that he doesn’t
                   have that right.

                   . . . .

                   So, Mr. Chang, like I said, I know it was
                   a little confusing, and I might have been
                   confusing to you, so I want to make sure
                   that it’s absolutely clear to you.
                   Although we agreed to consolidate . . .
                   the motion and the trial . . . , you have
                   a right to testify at the motion as well
                   as a right to testify at trial.

      Chang:       Okay.

      The Court:   That whole right to remain silent, that
                   goes for the trial portion of it. . . .
                   But if you wanted to testify for the
                   motion, it’s your right. We can figure
                   out how to work the logistics of it in our
                   own way. And if you testify at the
                   motion, it doesn’t necessarily mean that
                   what you testify in the motion I’m
                   automatically going to use for the trial.

      Chang:       Okay.

      The Court:   If you didn’t want to, you know, whatever
                   you said in the motion, if you didn’t want
                   it for the trial, I would just have to
                   take it out of my mind and put it on the
                   side. Okay?

      Chang:       Okay.

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          The Court:   So that’s your right. So I want to make
                       sure you clearly understand your rights.
                       Okay?

          Chang:       Yes, your honor.

(Emphases added).

          Chang ultimately declined to testify for purposes of

the suppression hearing:

          The Court:   So now, knowing that, . . . are you going
                       to be testifying in regard to the motion?

          Defense:     No.

          Chang:       No.     No, I will not, your honor.

          The Court:   Okay.     And that’s your choice not to?

          Chang:       Correct.

          With regard to the motion, Chang sought to exclude from

evidence any questions that he asked Officer Spiker regarding why

he had been pulled over, any mistakes that he made while

counting, and his performance on the SFST.            He argued that any

statements that he made after being pulled over required

suppression in light of Officer Spiker’s testimony that he was

“not free to leave” and Officer Spiker’s failure to advise him of

his right to remain silent.         The State argued that Officer

Spiker’s traffic stop was noncustodial due to its brevity and

non-coercive nature, and as such, Officer Spiker was not required

to advise Chang of his right to remain silent.

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          The district court granted Chang’s motion to suppress

with regard to his verbal statements, pursuant to State v.

Tsujimura, 140 Hawaii 299, 400 P.3d 500 (2017).            However, it

denied Chang’s motion to suppress with regard to Officer Spiker’s

observations of Chang’s “physical action” during the SFST because

Chang “voluntarily agreed to do the [SFST].”           The defense moved

to dismiss Chang’s charge on the ground of insufficient evidence,

but the district court denied the motion, considering the

evidence “in the light most favorable to the State.”

          c.     The Trial

          The district court conducted a Tachibana colloquy,

explaining to Chang that: he had the constitutional right to

testify or not to testify at trial; no one could prevent him from

doing so; if he chose to testify, he would be subject to cross-

examination; and if he chose to remain silent, his silence could

not be held against him.      Chang confirmed that he understood

these rights and declined to testify.

          In its closing argument, the State argued that Officer

Spiker’s testimony regarding Chang’s traffic violations and SFST

performance was sufficient to carry its burden of proof that

Chang committed OVUII.      In response, the defense argued that

Chang’s traffic violations were not “indicative of [alcohol]

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impairment”; Chang was able to produce the requested documents to

Officer Spiker without difficulty; and even though Chang’s SFST

performance was “not perfect,” Officer Spiker’s testimony did not

constitute a sufficient basis for the district court to find that

Chang committed OVUII.

           The district court found Officer Spiker’s testimony to

be credible and explained that “the only question [was] whether

or not [Chang, while] operating [a] vehicle[,] [consumed alcohol]

in an amount sufficient to impair his normal mental faculties or

ability to care for the person and guard against casualty.”                   The

district court found Chang guilty of OVUII and sentenced him to a

$150 fine and other requirements.

B.   Appeal to the ICA

           On appeal to the ICA, Chang contended that: (1) under

Tsujimura, the district court erred in denying Chang’s motion to

suppress evidence of his SFST performance; (2) his conviction was

not supported by substantial evidence; (3) his waivers of his

rights to testify for the purposes of the suppression motion and

trial were not knowing, intelligent, and voluntary; and (4)

Chang’s attorney provided ineffective assistance of counsel.                  The

ICA rejected Chang’s arguments and affirmed his conviction.

           First, the ICA held that the district court had

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appropriately considered Chang’s SFST performance, given this

court’s holding in State v. Wyatt that routine traffic stops do

not constitute “custodial interrogation.”           67 Haw. 293, 687 P.2d

544 (1984).   The ICA rejected Chang’s reliance on Tsujimura,

explaining that in Tsujimura, “the issue was whether the

defendant’s pre-arrest silence could be used against him

substantively as an implication of guilt, [and] not whether[, as

here,] non-custodial, pre-arrest statements made by a defendant

[could] be used as evidence.”        Further, citing to State v.

Kaleohano, 99 Hawaii 370, 376, 56 P.3d 138, 144 (2002), the ICA

held that “Chang was not in custody merely by virtue of being

pulled over during a traffic stop[,]” and that Chang was not

“subjected to custodial interrogation” at any point prior to, or

during, the SFST.     The ICA determined that Miranda warnings -

including an advisement of Chang’s right to remain silent - were

not necessary, and Chang’s right against self-incrimination was

not violated, because the totality of the circumstances reflected

that Chang was not in custody.        In light of this conclusion, and

the district court’s finding that Officer Spiker was a credible

witness, the ICA held that there was sufficient evidence to

support Chang’s conviction.

          Second, the ICA concluded that Chang knowingly,

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intelligently, and voluntarily waived his rights to testify for

purposes of both his motion and trial.          While acknowledging that

the district court “initial[ly] misstate[d] . . . the

implications of consolidating the hearing on the motion to

suppress with the trial[,]” the ICA noted that the district court

later clarified that Chang “could choose whether his testimony

for the motion to suppress would be used for the purposes of

trial.”   Because the district court “remedied its misstatements”

by stating that it would consider Chang’s testimony for the

motion to suppress separately, granted a recess so that Chang

could confer with defense counsel, and reiterated its corrected

position, and because Chang ultimately “indicated that he

understood” his rights, the ICA could not “conclude that Chang’s

rights were violated by the [d]istrict [c]ourt’s initial

misstatement.”

          The ICA also rejected Chang’s argument that his waiver

of the right to testify at trial was “irreparably compromised by

the [district] court’s misapprehension that it could not hold a

consolidated hearing and trial without holding Chang’s testimony

on the motion against him.”       The ICA explained that any confusion

regarding whether the district court could consider Chang’s

testimony on the suppression motion for purposes of the trial

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“was irrelevant to Chang’s subsequent decision to waive his right

to testify at trial.”       As such, Chang’s waiver of the right to

testify at trial was knowing, intelligent, and voluntary.

           Finally, the ICA rejected Chang’s argument that his

attorney provided ineffective assistance of counsel.              The ICA

noted that “there [was] nothing in the record to support Chang’s

assertions concerning what his counsel did or did not advise

him.”   Further, the ICA determined that Chang’s claim was without

merit, as “the [d]istrict [c]ourt itself advised Chang that he

could choose to testify only for the purpose of the motion to

suppress[] and Chang acknowledged that he understood this

advisement, but that he did not want to testify.”

                        III.   STANDARDS OF REVIEW

A.   Constitutional Law

           Appellate courts answer “questions of constitutional

law by exercising [their] own independent judgment based on the

facts of the case.      Thus, [this court reviews] questions of

constitutional law under the ‘right/wrong’ standard.”               State v.

Fields, 115 Hawaii 503, 511, 168 P.3d 955, 963 (2007) (internal

quotation marks, citations, and ellipses omitted).

B.   Sufficiency of the Evidence

           We have long held that evidence adduced in the trial

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            court must be considered in the strongest light for
            the prosecution when the appellate court passes on the
            legal sufficiency of such evidence to support a
            conviction; the same standard applies whether the case
            was before a judge or a jury. The test on appeal is
            not whether guilt is established beyond a reasonable
            doubt, but whether there was substantial evidence to
            support the conclusion of the trier of fact. Indeed,
            even if it could be said in a bench trial that the
            conviction is against the weight of the evidence, as
            long as there is substantial evidence to support the
            requisite findings for conviction, the trial court
            will be affirmed.


State v. Matavale, 115 Hawaii 149, 157-58, 166 P.3d 322, 330-31

(2007).

            Substantial evidence as to every material element of
            the offense charged is credible evidence which is of
            sufficient quality and probative value to enable [a
            person] of reasonable caution to support a conclusion.
            And as trier of fact, the trial judge is free to make
            all reasonable and rational inferences under the facts
            in evidence, including circumstantial evidence.

State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992)

(internal quotation marks and citations omitted).

                              IV.   DISCUSSION

            In his application for writ of certiorari, Chang

asserts the same arguments that he raised on appeal.              The

dispositive issue, however, is whether Chang knowingly,

intelligently, and voluntarily waived his right to testify for

purposes of his suppression motion.7

            As set forth below, we hold that the district court

7
      We do not address Chang’s other arguments, except to find that
sufficient evidence supported Chang’s conviction.

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erroneously advised Chang concerning his right to testify for the

purposes of the suppression motion by suggesting that Chang’s

testimony on the motion could be used as evidence of his guilt or

innocence at trial.      Although the district court attempted to

correct its misstatements on this matter, it failed to do so

adequately.    Accordingly, we cannot conclude that Chang validly

waived his right to testify.

            Hawai i Rules of Penal Procedure (HRPP) Rule 12(e)

provides:

            A motion made before trial shall be determined before
            trial unless the court orders that it be deferred for
            determination at the trial of the general issue or
            until after verdict; provided that a motion to
            suppress made before trial shall be determined before
            trial. Where factual issues are involved in
            determining a motion, the court shall state its
            essential findings on the records.

HRPP Rule 12(e) (2007).

            We previously held, however, that pre-trial suppression

hearings and trials could be consolidated, provided that the

parties agreed to do so on the record.          In State v. Doyle, the

defendant did not object to the consolidation of her suppression

hearing and trial.      64 Haw. 229, 231 n.3, 638 P.2d 332, 334 n.3

(1981).   On appeal, this court rejected the defendant’s challenge

to the consolidation, holding that:

            [W]here the trial court at a bench trial expressly


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            advises the parties, for the record, of its intention
            to hear the motion and the merits contemporaneously[,]
            and no objection is voiced by either party to the
            proposed procedure, the trial court may then proceed
            to hear the issues contemporaneously. The trial court
            should, however, enter its ruling on the motion to
            suppress before finally determining the merits of the
            charge against the defendant. Moreover, we remind the
            trial courts that “[w]here factual issues are involved
            in determining a motion, the court shall state its
            essential findings on the record.”

Id. at 231, 638 P.2d at 334 (citations and footnotes omitted).

            In State v. Thomas, “we remind[ed] the lower courts

that Doyle require[d] an express statement and agreement by the

parties, on the record, where the court intend[ed] to hear

testimony on the motion and merits contemporaneously.”               72 Haw.

48, 54, 805 P.2d 1212, 1214 (1991).

            Thus, Doyle and Thomas authorized the consolidation of

proceedings when the trial court did so expressly and the parties

agreed to such consolidation, which was the case here.8               The

district court, however, was nevertheless required to accurately

advise Chang of the implications of testifying in the unique

context of a consolidated proceeding.           Here, the district court’s

initial advisements on the subject were erroneous and its

subsequent attempts to correct its error were insufficient.

            As noted above, the district court initially advised


8
      However, the majority opinion by Justice Pollack prospectively overrules
Doyle and Thomas.

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Chang that if he chose to testify for purposes of the suppression

hearing, his testimony could be used against him at trial:

          The Court:   [T]hat’s the problem is if [Chang]’s going
                       to testify it’s also – since we’re
                       consolidating it, it’s part of the trial
                       as well.

                       . . . .

                       [W]hat [Chang] testifies to [in the
                       suppression hearing,] I’m going to listen
                       to it and decide in regard to the trial as
                       well. You see what I mean?

                       . . . .

                       So, I mean, even if you’re limiting it to
                       just the motion, whatever he gets up on
                       the stand to [say], I’m going to actually
                       have to decide on it for the trial.

                       . . . .

                       [T]he court’s going to listen to all of
                       that [testimony] and use all of that in
                       determining for the trial [Chang’s] guilt
                       or innocence as well.

                       . . . .

                       [I]f [Chang] testifies for purposes of the
                       motion, then we’re kind of stuck at that
                       point since we’re consolidating the motion
                       and the trial, so I can’t unhear what I’ve
                       heard.

                       . . . .

                       [S]ince we’re doing this as a consolidated
                       hearing, whatever [Chang’s] saying in the
                       motion, technically since we’re
                       consolidating it, I don’t know how [] I
                       can’t use that for the trial.




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           These statements by the court were in error.             See,

e.g., Simmons v. United States, 390 U.S. 377 (1968).             In Simmons,

the defendant testified at a suppression hearing with regard to

whether he was the owner of items that were found in a suitcase

during a search that he contended was illegal.            Id. at 389.        The

trial court allowed that testimony to be used against the

defendant at trial and the defendant was ultimately convicted of

robbery.   Id.   The United States Supreme Court reversed the

conviction, noting:

           In these circumstances, we find it intolerable that
           one constitutional right should have to be surrendered
           in order to assert another. We therefore hold that
           when a defendant testifies in support of a motion to
           suppress evidence on Fourth Amendment grounds, his
           testimony may not thereafter be admitted against him
           at trial on the issue of guilt unless he makes no
           objection.

Id. at 394.

           Thus, pursuant to Simmons, Chang had the right to

testify for the purpose of his motion to suppress without having

that testimony used against him at trial.           It was essential that

Chang be informed of those rights in order to ensure that his

decision whether to testify at the suppression hearing was

knowingly and intelligently made.

           Under Tachibana and its progeny, trial courts must

engage in an on-the-record colloquy with a defendant, explaining

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to the defendant the right to testify and the right not to

testify.   79 Hawaii at 236, 900 P.2d at 1303.           The purpose of

the colloquy is to ensure that any waiver of these rights is

knowing, intelligent, and voluntary.         Id.    As we have explained,

“[a] defendant’s understanding of the right to testify or not is

fundamental to a fair trial[,]” and trial courts have a “serious

and weighty responsibility” to determine whether a waiver of

those rights is knowing and voluntary.          State v. Monteil, 134

Hawaii 361, 371, 341 P.3d 567, 577 (2014) (citing Tachibana, 79

Hawaii at 233, 900 P.2d at 1300).         Furthermore, “[i]n conducting

a colloquy, the trial court must be careful not to influence the

defendant’s decision whether or not to testify.”            Id. at 370, 341

P.3d at 576 (citation omitted).

           “In 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) (citation omitted).        Under the totality of the

circumstances here, it is clear that the district court erred in

conducting its pre-trial advisements, by initially suggesting

that Chang’s testimony on the suppression motion would be


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considered by the district court for purposes of the trial.

           Although it appears that the district court recognized

its error and attempted to correct it, we conclude that the

district court’s efforts did not adequately dispel the confusion

created by the court’s prior misstatements.           Significantly, the

district court incorrectly implied that it had discretion to

consider Chang’s suppression hearing testimony at trial by

stating, “if you testify at the motion, it doesn’t necessarily

mean that what you testify in the motion I’m automatically going

to use for the trial.”      (Emphases added).       In fact, as discussed

above, the district court would have been precluded from

considering Chang’s suppression hearing testimony absent Chang’s

consent.   Simmons, 390 U.S. at 393-94.

           Considering all these circumstances, we cannot conclude

that Chang knowingly, intelligently, and voluntarily waived his

right to testify for the purposes of the pre-trial suppression

hearing.   Accordingly, his conviction must be vacated.

                              V.   CONCLUSION

           We vacate the ICA’s October 3, 2018 Judgment on Appeal

and the District Court of the First Circuit’s August 25, 2017




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Notice of Entry of Judgment and/or Order and Plea/Judgment, and

remand the case for further proceedings.

Alen M. Kaneshiro                   /s/ Mark E. Recktenwald
for petitioner
                                    /s/ Paula A. Nakayama
Brian R. Vincent
for respondent                      /s/ Sabrina S. McKenna

                                    /s/ Richard W. Pollack

                                    /s/ Michael D. Wilson




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