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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000402
                                                              16-MAY-2018
                                                              09:37 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                         RACHEL VIAMOANA UI,
                   Petitioner/Defendant-Appellant.


                            SCWC-15-0000402

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-15-0000402; CASE NO. 3DTA-11-02996)

                              MAY 16, 2018

     McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
         DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

          The right to have all elements of a charged criminal

offense proven beyond a reasonable doubt is one of the

fundamental principles of our justice system.          In State v.

Murray, we held that a trial court must engage a defendant in an

on-the-record colloquy to ensure that the defendant is

intelligently, knowingly, and voluntarily relinquishing this
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fundamental right before the court may accept the defendant’s

admission of an element of a crime.         116 Hawaii 3, 12, 169 P.3d

955, 964 (2007).     We now reiterate our holding in Murray and

decline to establish an exception to the colloquy requirement

when a stipulation is based on trial strategy or time

constraints.

                            I.    BACKGROUND

          In April 2011, Rachel Viamoana Ui and Jacob Wong, Ui’s

co-worker, were involved in a traffic collision in Kona on the

island of Hawaiʻi.    The two were traveling in Wong’s vehicle,

which “rolled” after it collided with a concrete construction

barrier on Kamakaeha Avenue, eventually coming to a stop on its

roof.   When an ambulance arrived, the responding emergency

medical technician found Ui unconscious a few feet from the

driver-side door of the vehicle.         Ui was transported to Kona

Hospital, where an emergency room physician informed the

responding police officer that he smelled alcohol on her person.

Acting pursuant to Hawaii Revised Statutes (HRS) § 291E-21

(Supp. 2006), the officer requested that the hospital obtain a

blood sample from Ui in order to determine her blood alcohol

content (BAC).    Ronald Luga, a medical technician employed by

the hospital, proceeded to draw two vials of blood from Ui while

she remained unconscious.




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                   A.    District Court Proceedings

          The State of Hawaiʻi filed a complaint in the District

Court of the Third Circuit (district court) charging Ui with

operating a vehicle under the influence of an intoxicant (OVUII)

in violation of HRS § 291E-61(a) (Supp. 2011)1 and driving

without a license in violation of HRS § 286-102(b)2 (2007).3               Ui

pleaded not guilty to both charges.



     1
          HRS § 291E-61 provides in relevant part as follows:

          (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; [or]

                . . .

                (4)   With .08 or more grams of alcohol per one hundred
                milliliters or cubic centimeters of blood.
     2
          HRS § 286-102(b) provides in relevant part as follows:

          (b) A person operating the following category or
          combination of categories of motor vehicles shall be
          examined . . . and duly licensed by the examiner of
          drivers:

                . . .

                (3) Passenger cars of any gross vehicle weight
                rating, buses designed to transport fifteen or fewer
                occupants, and trucks and vans having a gross vehicle
                weight rating of fifteen thousand pounds or less . .
                . .
     3
          The complaint charged as follows:

                          Count 1 (C11009451/KN)


                                                            (continued . . .)


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            During the bench trial,4 the parties offered

conflicting testimony as to whether Ui was driving at the time

of the accident.      Ui and Wong both acknowledged that they drank

heavily on the night in question and testified that Wong had

driven the two to a local store prior to the collision.             Wong

claimed that Ui insisted upon driving his truck when they left

the store and was in control of the vehicle when it collided

with the concrete barrier.       In contrast, Ui asserted that she

had “passed out” in Wong’s passenger seat while still at the

store and was sleeping when the collision occurred.


(. . . continued)

            On or about the 13th day of April, 2011, in Kona, County
            and State of Hawaii, RACHEL UI, did operate or assume
            actual physical control of a vehicle on any public way,
            street, road, or highway, while under the influence of
            alcohol in an amount sufficient to impair Defendant’s
            normal mental faculties or ability to care for Defendant’s
            self and guard against casualty; and/or with .08 or more
            grams of alcohol per one hundred milliliters or cubic
            centimeters of blood, thereby committing the offense of
            Operating a Vehicle Under the Influence of an Intoxicant,
            in violation of Section 291E-61(a), Hawaii Revised
            Statutes, as amended.

            Count 2

            On or about the 13th day of April, 2011, in Kona, County
            and State of Hawaii, RACHEL UI, did operate a motor vehicle
            of a category listed in Section 286-102 of the Hawaii
            Revised Statutes, without first being appropriately
            examined and duly licensed as a qualified driver of that
            category of motor vehicles, thereby committing the offense
            of Driving Without a License, in violation of Section 286-
            102(b), Hawaii Revised Statutes, as amended.
      4
            The Honorable Joseph P. Florendo presided.




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          The State called Luga to testify regarding the blood

draw he performed on Ui.      Before Luga’s testimony could begin,

Ui’s defense counsel interrupted:

          I was speaking with Ms. Ui, and we may be willing to
          stipulate to certain things to save time with these
          witnesses.

                Ms. Ui’s asking me, was asking me if these witnesses
          are necessary, and I explained to her not if we’re willing
          to stipulate to certain things. And I know that we’re
          trying to get a lot done today. So if I could just briefly
          speak with her, and maybe the prosecution, about what we’d
          be willing to stipulate to, to save . . . the need of these
          witnesses.

[Tr 4/13/12, 43:67]     The court granted a recess to allow defense

counsel to confer with Ui and the prosecuting attorney.

          Following the recess, defense counsel orally

stipulated to the following: (1) Ui’s blood was drawn within

three hours of the report of the accident; (2) Ui’s blood was

drawn in accordance with the Hawaii Administrative Rules; and

(3) the blood samples were properly secured and transported to

the laboratory.    Additionally, defense counsel stipulated that

Ui’s blood test results showed a BAC of 0.156 grams of alcohol

per one hundred milliliters or cubic centimeters of blood.

Defense counsel indicated that he had “reviewed those

stipulations” with Ui and “we’re not challenging any of those

facts.”

          The district court did not engage Ui in a colloquy

regarding the stipulation to the blood test results, and a

written copy of the stipulation was not provided to the court.

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Neither the court nor counsel acknowledged that the stipulated

facts constituted proof of one of the two elements of a HRS §

291E-61(a)(4) offense.      See Hawaii Standard Jury Instructions

Criminal 16.05 (2004) (providing that the two elements of a

violation are 1) operating a vehicle and 2) having 0.8 or more

grams of alcohol per 100 milliliters or cubic centimeters of

blood).

           At the conclusion of evidence, the district court

found Ui guilty of OVUII and of driving without a license.              The

court sentenced Ui to pay a $1,000 fine and other monetary fees,

attend a fourteen-hour driver’s education course, and obtain a

substance abuse assessment.

    B.    Proceedings Before the Intermediate Court of Appeals

           Approximately twenty-eight months later, Ui,

represented by new counsel, filed a notice of appeal to the

Intermediate Court of Appeals (ICA).5         Ui argued that the State

had failed to allege in its initial complaint that she had acted

with the state of mind required to commit both offenses.             With

regard to the OVUII conviction, Ui argued it should be vacated


     5
            Shortly after the appeal was filed, Ui filed a statement of
jurisdiction that argued the untimeliness of her notice of appeal should be
excused under State v. Caraballo, 62 Haw. 309, 316, 615 P.2d 91, 96 (1980),
because Ui’s court-appointed counsel had failed to take the procedural steps
to effectuate Ui’s expressed desire to appeal. The State did not contest the
timeliness of Ui’s appeal to the ICA.




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because the language of the district court’s ruling left it

unclear whether the conviction was premised on HRS § 291E-

61(a)(1)--which includes a state of mind requirement not alleged

in the complaint--or HRS § 291E-61(a)(4)--which does not.6

           In a Summary Disposition Order (SDO), the ICA vacated

Ui’s conviction for driving without a license in violation of

HRS § 286-102.7    The ICA reasoned that, because HRS § 286-102

does not in itself specify a requisite state of mind with

respect to the conduct it prohibits, HRS § 702-204 (2014)8

requires that a defendant must have undertaken each element of

the offense intentionally, knowingly, or recklessly in order to

be convicted.     The ICA held that, because the State had not

alleged a mens rea in its complaint, dismissal of the driving

without a license charge without prejudice was warranted under

this court’s decision in State v. Apollonio, 130 Hawaii 353,

359, 311 P.3d 676, 682 (2013).
     6
            An OVUII offense may be established either by proving a defendant
drove while under the influence of an amount of alcohol sufficient to cause
impairment under HRS § 291E-61(a)(1) or by proving a defendant drove with .08
or more grams of alcohol per one hundred milliliters or cubic centimeters of
blood under HRS § 291E-61(a)(4). State v. Grindles, 70 Haw. 528, 530, 777
P.2d 1187, 1189 (1989). The subsections are not separate offenses, but
rather separate methods of proof for a single offense. Id.
     7
            The ICA’s SDO can be found at State v. Ui, No. CAAP–15–0000402,
2016 WL 3018301 (Haw. App. May 25, 2016).
     8
            HRS § 702-204 provides in relevant part as follows: “When the
state of mind required to establish an element of an offense is not specified
by the law, that element is established if, with respect thereto, a person
acts intentionally, knowingly, or recklessly.”




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           The ICA also determined that Ui’s OVUII conviction was

based on violations of both HRS § 291E-61(a)(1) (impairment of

ability to care for oneself) and HRS § 291E-61(a)(4) (BAC over

.08).   Because HRS § 291E-61(a)(4) is a strict liability method

of proof that does not require the State to allege a mens rea

under our precedents, see State v. Nesmith, 127 Hawaii 48, 58-

61, 276 P.3d 617, 627-30 (2012), the ICA affirmed Ui’s OVUII

conviction under HRS § 291E-61(a)(4).

           Following issuance of the SDO, Ui filed a motion for

reconsideration.     Ui argued that this court’s then-recent

decision in State v. Won, 137 Hawaii 330, 372 P.3d 1065 (2015),

in which we held that the State may not use the threat of

criminal sanctions to coerce a driver into consenting to a

breath or blood test, rendered her blood test results

inadmissible.9    The ICA should therefore vacate her HRS § 291E-

61(a)(4) conviction, Ui contended, and remand the case to permit

her to move to suppress the blood test results.           The ICA denied

the motion, determining that Ui had waived the issue of

admissibility by failing to move for suppression of the test

results prior to trial.



      9
            Ui initially raised Won’s applicability to her case in a motion
for leave to file supplemental briefing prior to the ICA’s SDO. The ICA
denied Ui’s motion.




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                        II.   STANDARDS OF REVIEW

           Both the reasonableness of a search and the validity

of a defendant’s waiver of his or her constitutional rights are

questions of constitutional law.          See State v. Quiday, 141

Hawaii 116, 121, 405 P.3d 552, 557 (2017); State v. Friedman, 93

Hawaiʻi 63, 67, 996 P.2d 268, 272 (2000).          “We answer questions

of constitutional law by exercising our own independent

constitutional judgment based on the facts of the case.             Thus,

we review questions of constitutional law under the right/wrong

standard.”    Friedman, 93 Hawaiʻi at 67, 996 P.2d at 272 (quoting

State v. Hanapi, 89 Hawaii 177, 182, 970 P.2d 485, 490 (1998)).

                              III. DISCUSSION

           In her application for a writ of certiorari, Ui

contends that the ICA erred in failing to apply State v. Won,

137 Hawaii 330, 372 P.3d 1065 (2015), to vacate her HRS § 291E-

61(a)(4) conviction.      The State responds that the ICA correctly

held that Ui is not similarly situated to the defendant in Won.10


     10
            The State also argues for the first time in response to Ui’s
certiorari application that the ICA lacked jurisdiction because Ui’s appeal
was untimely. Ui expressed her intention to appeal during sentencing , and
Ui’s appointed trial counsel was aware of that intention, as evidenced by
counsel’s filing of an ex parte motion to extend the time to file a notice of
appeal. The record does not indicate that Ui’s trial counsel filed a motion
to withdraw. Due process dictates that a defendant may not be deprived of an
appeal because appointed counsel failed to comply with procedural rules.
State v. Knight, 80 Hawaii 318, 323-24, 909 P.2d 1133, 1138-39 (1996); see
also Maddox v. State, 141 Hawaii 196, 204-05, 407 P.3d 152, 160-61 (2017)
(holding that trial counsel is constitutionally ineffective when counsel is

                                                             (continued . . .)


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            Additionally, this court directed the parties to

submit supplemental briefing on the following questions: (1)

whether the district court erred by failing to engage Ui in a

colloquy regarding the blood test stipulation as required by

State v. Murray, 116 Hawaii 3, 12, 169 P.3d 955, 964 (2007), and

(2) whether, if the district court erred by not engaging Ui in a

colloquy, this court should recognize plain error and vacate

Ui’s conviction.

       A.    State v. Won Is Inapplicable To Ui’s Blood Draw.

            In Won, we held that law enforcement’s use of an

“implied consent form” that threatened criminal penalties for

refusing a BAC test was inherently coercive and rendered a

driver’s ensuing consent invalid under article I, section 7 of

the Hawaiʻi Constitution.      137 Hawaiʻi at 347-48, 372 P.3d at

1082-83.    When Ui’s blood was drawn at Kona Community Hospital

after the accident, no request was made that she consent to

testing, nor was an implied consent form advising of possible

criminal penalties involved.        Because Ui’s blood draw was not

predicated on her consent, Won does not provide authority to

challenge Ui’s HRS § 291E-61(a)(4) conviction on this basis.


(. . . continued)

aware of a defendant’s desire to appeal and fails to take the procedural
steps to effectuate or protect the defendant’s right to appeal).




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See id. at 344 n.26, 372 P.3d at 1079 n.26 (citing State v.

Entrekin, 98 Hawaii 221, 232, 47 P.3d 336, 347 (2002)) (setting

forth constitutional requirements for a nonconsensual,

warrantless blood extraction pursuant to HRS § 291E-21).11

     B.    State v. Murray Required An On-the-Record Colloquy.

   1.     A Colloquy is Required Prior to Any Stipulation to an
                       Element of an Offense

           It is well settled in Hawaii law that a defendant

relinquishes fundamental rights only when a waiver is undertaken

intelligently, knowingly, and voluntarily.          Murray, 116 Hawaiʻi

at 10-11, 169 P.3d at 962-63 (citing State v. Ibuos, 75 Haw.

118, 121, 857 P.2d 576, 578 (1993); Tachibana v. State, 79

Hawaii 226, 235, 900 P.2d 1293, 1302 (1995)).           Reviewing courts

will not presume a defendant’s acquiescence in the loss of

fundamental rights on the basis of a silent record.            Wong v.

Among, 52 Haw. 420, 424, 477 P.2d 630, 633-34 (1970).             Rather,

an affirmative, on-the-record waiver must come directly from the

defendant, and counsel may not waive fundamental rights on a

client’s behalf.     Murray, 116 Hawaii at 10, 169 P.3d at 962.




     11
            We express no opinion as to the applicability of Birchfield v.
North Dakota to this case. 136 S. Ct. 2160 (2016). On retrial, the district
court may consider whether Ui’s blood draw was performed pursuant to exigent
circumstances or solely as an incident to her arrest.




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          To ensure these requirements are met, it is necessary

for a trial court to engage a defendant in an on-the-record

colloquy before accepting a waiver of any of the rights we have

held to be fundamental, including the right to counsel, Carvalho

v. Olim, 55 Haw. 336, 342-43, 519 P.2d 892, 897 (1974), the

right to trial by jury, Ibuos, 75 Haw. at 121, 857 P.2d at 578,

and the right of a defendant to testify on his or her own

behalf, Tachibana, 79 Hawaiʻi at 236, 900 P.2d at 1303.

          In Murray, this court considered whether the on-the-

record colloquy requirement should be applied to a defendant’s

stipulation to an element of an offense.         116 Hawaiʻi at 9, 169

P.3d at 961.   Murray was charged with abuse of family or

household members under HRS § 709-906 (Supp. 2006) with a

statutory felony enhancement based on two previous convictions

for the same offense within a specified period.12          Id. at 5-6,

169 P.3d at 957-58.     Prior to trial, Murray’s counsel stipulated

that Murray had been convicted under the statute twice within

     12
          In relevant part, HRS § 709-906 states as follows:

          (1) It shall be unlawful for any person, singly or in
          concert, to physically abuse a family or household member
          or to refuse compliance with the lawful order of a police
          officer under subsection (4).

          . . .

          (7) For a third or any subsequent offense that occurs
          within two years of a second or subsequent conviction, the
          offense shall be a class C felony.




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the required time frame, thus satisfying an element of the

offense.   Id. at 5, 169 P.3d at 957.       The trial court did not

address Murray in a colloquy regarding the constitutional rights

he was waiving by stipulating to his prior convictions.             Id.

           On review, this court held that the right to have all

elements proven beyond a reasonable doubt is a fundamental right

guaranteed under the Fifth and Fourteenth Amendments to the

United States Constitution; article I, section 5 of the Hawaiʻi

Constitution; and HRS § 701-114 (1993).13           Id. at 10-12, 169 P.3d

at 962-64.   We determined that “a colloquy between the trial

court and defendant is the best way to ensure that a defendant’s

constitutional right . . . is protected” because it guarantees

that a defendant understands the nature of the fundamental

rights being relinquished, the full consequences of such a
     13
           HRS § 701-114 states the following:

           (1) Except as otherwise provided in section 701-115, no
           person may be convicted of an offense unless the following
           are proved beyond a reasonable doubt:

                 (a) Each element of the offense;

                 (b) The state of mind required to establish each
                 element of the offense;

                 (c) Facts establishing jurisdiction;

                 (d) Facts establishing venue; and

                 (e) Facts establishing that the offense was committed
                 within the time period specified in section 701-108.

           (2) In the absence of the proof required by subsection (1),
           the innocence of the defendant is presumed.




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waiver, and the defendant’s unrestricted personal discretion as

to whether to undertake the waiver.14           Id. at 12, 169 P.3d at

964.

             Thus, we determined that a colloquy is the most

reliable procedure to ensure the defendant’s waiver is knowing,

intelligent, and voluntary.         Id.     We reasoned in Murray that

“the colloquy approach also best promotes judicial efficiency by

establishing on the record that the defendant has voluntarily

waived an element of the offense,” thus minimizing post-trial

challenges.      Id.   We therefore held that the trial court must

conduct a colloquy when a defendant wishes to waive the right to

have all elements of an offense proven beyond a reasonable

doubt, which occurs when a defendant stipulates to one or more

elements.      Id.

             The requirement that all elements of an offense be

proven beyond a reasonable doubt arises out of the presumption

of innocence, one of the fundamental principles that establish

the foundation of our justice system.            Coffin v. U.S., 156 U.S.

432, 452-61 (1895); see also State v. Basham, 132 Hawaii 97,

116, 319 P.3d 1105, 1124 (2014).            No defendant in this State may


       14
            To the extent the State argues Murray established a colloquy
requirement only for stipulations regarding past convictions, it is mistaken.
See Murray, 116 Hawaii at 12, 169 P.3d at 964 (“[T]he trial court must
conduct a colloquy regarding waiver of proof of an element of the offense.”).




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be found guilty until the prosecution overcomes the defendant’s

presumption of innocence as to each element of the charged

offense.   State v. Lima, 64 Haw. 470, 474, 643 P.2d 536, 539

(1982); HRS § 701-114.

           The waiver of the constitutional right to have each

element of an offense proven beyond a reasonable doubt is not an

insignificant or routine procedural matter.          By its very nature,

the right encompasses a number of other constitutional rights,

including the right to confront and cross-examine witnesses as

to the stipulated element and the right to adduce contrary

evidence regarding the stipulated element.         83 C.J.S.

Stipulations § 5 (2017) (“A stipulation bars a party who enters

into it from adducing evidence to dispute the stipulated facts

or the circumstances surrounding them.”).         The stipulation also

acts as a waiver of any potential defenses to the element, both

at trial and on appeal.     Id. § 78 (“A stipulation as to facts

also functions as a waiver of legal defenses to the

establishment of the particular element to which the parties

have stipulated, and therefore is not reviewable on appeal.”).

In the absence of a colloquy, there is little by which a court

can gauge whether a defendant understands that stipulating to

facts comprising an element of an offense amounts to such a

sweeping concession.




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          In short, the right to have all elements of an offense

proven beyond a reasonable doubt is of fundamental importance.

We accordingly reaffirm that an on-the-record colloquy is

required to protect against the wrongful denial of this right.

    2.    Trial Strategy is not an Exception to the Mandatory
               Colloquy Required by State v. Murray

          The State argues that there were tactical advantages

to the stipulation and consequently a Murray colloquy was not

required to be conducted by the trial court.          Our precedents

place certain tactical decisions within the discretion of

defense counsel after consultation with a defendant to the

extent feasible and appropriate.         See State v. Richie, 88 Hawaii

19, 39, 960 P.2d 1227, 1247 (1998) (citing American Bar

Association, Standards for Criminal Justice—Prosecution Function

and Defense Function, Standard 4–5.2 (3d ed. 1993)).           Our

decision in Murray, however, makes clear that the final decision

to stipulate to evidence proving an element of an offense

resides solely with the defendant.         116 Hawaiʻi at 12, 169 P.3d

at 964.   Indeed, the Murray court held that the ICA had gravely

erred by concluding the stipulation was “a tactical decision

permissibly made by counsel for the defendant.”          Id. at 7, 13,

169 P.3d at 959, 965.     In reviewing applicable precedent, we

noted expressly that “a defendant’s constitutional rights may

not be waived by counsel . . . as a tactical matter.”            Id. at


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11, 169 P.3d at 963 (citing Tachibana v. State, 79 Hawaii 226,

229, 232, 900 P.2d 1293, 1296, 1299 (1995)).

          Creating a trial strategy exception to the requirement

that a court engage a defendant in a colloquy prior to accepting

a stipulation to an element of an offense would be a sharp

deviation from the procedure for waiving other fundamental

rights.   An attorney may not, for example, waive a defendant’s

right to a jury trial when the attorney considers a bench trial

strategically advantageous.      State v. Ibuos, 75 Haw. 118, 121,

857 P.2d 576, 578 (1993); see also State v. Young, 73 Haw. 217,

221, 830 P.2d 512, 515 (1992) (overruling State v. Olivera, 53

Haw. 551, 497 P.2d 1360 (1972), which held that counsel may

waive a jury trial on a client’s behalf).         Nor may defense

counsel waive a defendant’s right to testify as a matter of

trial strategy.    Tachibana, 79 Hawaiʻi at 232, 900 P.2d at 1299

(holding that defense counsel may not waive a defendant’s right

to testify in his or her own behalf for tactical reasons).

          A trial strategy exception would also ultimately

swallow the colloquy rule.      Stipulations by definition are

voluntary agreements between opposing parties.          Stipulation,

Black’s Law Dictionary (10th ed. 2014).         As a voluntary

agreement, there is little incentive for counsel to enter into a

stipulation unless it is viewed as beneficial in some fashion.



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This is to say that every decision to stipulate to evidence in a

case may be considered within the bounds of the trial strategy

exception argued by the State.       See Gonzalez v. United States,

553 U.S. 242, 256 (2008) (Scalia, J., concurring in the

judgment) (“Depending on the circumstances, waiving any right

can be a tactical decision.”).

          Even assuming that stipulations that involve trial

strategy can be distinguished from those that do not, it is

unclear what this distinction is and how a court would make the

determination.    The evaluation would invariably need to be made

by the trial court because whether a particular stipulation is

strategic is a fact-laden determination.         In assessing whether a

colloquy is required, a trial court would need to inquire of

counsel whether the stipulation was based on strategy or some

other consideration.     The response by defense counsel to this

question in itself poses a risk of invading the attorney-client

privilege and may also be potentially damaging to the defense.

The follow-up questions necessary to determine the accuracy of a

counsel’s assessment would compound and heighten these concerns.

          The present case amply demonstrates that reviewing

courts are not well positioned to ascertain the reasons

underlying a stipulation when such a judicial inquiry does not

take place at the trial level.       Ui’s counsel stated the

stipulation was intended simply to “save time” because they were


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“trying to get a lot done today.”         Despite this indication that

the stipulation was driven by administrative time constraints,

the State argues that Ui “had clear strategic and tactical

reasons for stipulating to the blood alcohol results.”             As would

likely be true in any appellate case in which judicial inquiry

was not done at the trial level, an accurate evaluation of the

issue would require remand for a hearing at which counsel and

the defendant would have to testify or respond to inquiries

regarding potentially privileged communications.15           And, as the

State appears to concede [SB at 9], remand for an evidentiary

hearing may be required even when its proposed trial strategy

exception to the colloquy requirement would apply because the

strategic advantages of a stipulation are only one aspect to be

considered in evaluating whether a defendant’s waiver was

knowing, intelligent, and voluntary under the totality of the

circumstances.     Thus, the cost to judicial resources of

determining whether a colloquy was excused under a trial

strategy exception would negate the efficiency benefits the




     15
            Indeed, our own precedents also evidence the difficulty inherent
in distinguishing strategic stipulations from those undertaken solely for
administrative convenience. See State v. Pratt, 127 Hawaii 206, 225 n.6, 277
P.3d 300, 319 n.6 (2012) (Acoba, J., dissenting) (disputing the majority’s
characterization of a stipulation as tactical, stating “it would not appear
this strategy had an obvious basis for benefitting Petitioner’s case”
(brackets and quotations omitted)).




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colloquy requirement affords.       See Murray, 116 Hawaii at 12, 169

P.3d at 964.

          Further, the stipulation in Murray itself was clearly

a strategic decision that would fall squarely within the State’s

argued exception.    By relinquishing the right to have his prior

convictions proven beyond a reasonable doubt, Murray avoided

“the prejudice that would result from relating the details of

the previous incidents to the jury.”        116 Hawaii at 20, 169 P.3d

at 972.   Murray’s decision represented a determination that it

was advantageous for him to concede one element of the charged

offense and focus his trial efforts on disproving those elements

that remained.    Despite the clear strategic analysis inherent in

his decision, we held that the “stipulation [could] be accepted

only after engaging [Murray] in an on-the-record colloquy

regarding [his] constitutional rights, and ensuring that [Murray

made] a knowing and voluntary waiver of his right to have the

prior convictions proven beyond a reasonable doubt and decided

by a jury.”    Id. at 21, 169 P.3d at 973.       The State’s argued

trial strategy exception would thus constitute a sub silentio

reversal of our holding in Murray.

          In sum, establishing a trial strategy exception to the

Murray colloquy requirement would fatally undermine the

procedural safeguards we have created for defendants’



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fundamental rights.     It would also introduce administrative

difficulties that would undercut the benefits to judicial

economy granted by the colloquy requirement.          See Murray, 116

Hawaii at 12, 169 P.3d at 964.      And it would represent an

effective overruling of Murray and other cases in which we have

held that a knowing, intelligent, and voluntary waiver cannot be

assumed from counsel’s words and actions, regardless of

strategic reasons for counsel’s statement of waiver.           E.g.,

Tachibana, 79 Hawaii at 232, 900 P.2d at 1299; Young, 73 Haw. at

221, 830 P.2d at 515.     We therefore decline to adopt such an

exception.

  3.   The Trial Court Failed to Engage Ui in an On-the-Record
                            Colloquy

          During the State’s case-in-chief, the district court

recessed to allow the parties to discuss a possible stipulation.

Following the recess, counsel proceeded to orally stipulate to

the evidentiary foundation and results of Ui’s blood test.             The

court did not address Ui before the stipulation was read to, and

accepted by, the district court.         The district court did not

attempt to determine whether Ui understood the nature of the

rights she was waiving and the consequences of that waiver, nor

did it ascertain whether the waiver was the product of Ui’s

unrestrained choice.




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             As stated, Murray requires a trial court to conduct an

on-the-record colloquy with the defendant before accepting a

waiver of the fundamental right to have all elements of a charge

proven beyond a reasonable doubt.           116 Hawaiʻi at 12, 169 P.3d at

964.    Only when the court has ensured that the right has been

knowingly, intelligently, and voluntarily waived may it accept a

stipulation to an element of an offense.            Id.   No such colloquy

occurred here.       Indeed, the present case underscores the vital

role played by the colloquy.         There is no indication in the

record that Ui understood that the stipulated facts her counsel

agreed to had the effect of conclusively establishing one of the

two elements of an offense with which she was charged.               The

district court therefore erred in accepting Ui’s stipulation.

       C.    The District Court’s Plain Error Warrants Reversal.

             When necessary to serve the ends of justice, this

court will consider issues that have not been preserved below or

raised on appeal.       See State v. Kahalewai, 56 Haw. 481, 491, 541

P.2d 1020, 1027 (1975); Hawaii Rules of Penal Procedure (HRPP)

Rule 52(b) (2016) (allowing plain error to be noticed although

not brought to attention of trial court); Hawaii Rules of

Appellate Procedure (HRAP) Rule 28(b)(4) (2010) (permitting

point of error not presented on appeal to be noticed as plain

error); HRAP Rule 40.1(d)(1) (2015) (allowing question not



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raised to be noticed as plain error).          It is “firmly

established” that the relevant inquiry when evaluating whether a

trial court’s plain error may be noticed is whether the error

affected substantial rights.16       State v. Miller, 122 Hawaii 92,

100, 223 P.3d 157, 165 (2010); see also HRPP Rule 52(b) (“Plain

error.     Plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of

the court.”).     Thus, a reviewing court has discretion to correct

plain error when the error is “not harmless beyond a reasonable

doubt.”17    State v. Nichols, 111 Hawaii 327, 335, 141 P.3d 974,

982 (2006); see also Miller, 122 Hawaii at 130, 223 P.3d at 195;

HRPP Rule 52(a) (2016) (“Harmless error.          Any error, defect,


      16
            The State’s supplemental brief analyzed this case under the
federal plain error standard set forth in United States v. Olano, 507 U.S.
725 (1993). However, as the State concedes, this court expressly declined to
adopt the four-pronged Olano standard in State v. Nichols, 111 Hawaii 327,
335, 141 P.3d 974, 982 (2006). We reaffirm our holding in Nichols and do not
address the State’s arguments that rely on Olano.
      17
            The State appears to suggest that a different standard for
measuring harmless error should apply here because the failure of the
district court to engage Ui in a Murray colloquy was not “constitutional
error per se.” “Because a defendant may not be convicted of an offense
except upon proof establishing his or her guilt beyond a reasonable doubt, we
question whether a standard more lenient than the harmless beyond a
reasonable doubt standard is ever appropriate in criminal cases.” State v.
Malufau, 80 Hawaii 126, 131, 906 P.2d 612, 617, order on reconsideration
(1995); see also State v. Holbron, 80 Hawaii 27, 32 n.12, 904 P.2d 912, 917
n.12 (1995) (“To the extent that this language . . . implies a standard of
review under HRPP 52(a) other than ‘harmless beyond a reasonable doubt,’ we
expressly disapprove and overrule it.”); State v. Chun, 93 Hawaii 389, 393, 4
P.3d 523, 527 (App. 2000) (holding all errors in criminal cases are subject
to harmless beyond a reasonable doubt standard). Our precedent rejects the
distinction asserted by the State of “constitutional error per se” versus
non-constitutional errors.




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irregularity or variance which does not affect substantial

rights shall be disregarded.”).

            The right to have all elements of a charged offense

proven beyond a reasonable doubt is rooted not only in statutory

and constitutional law, but also in the presumption of innocence

that is the very foundation of our criminal justice system.                  We

held in Murray that the right was of such fundamental importance

that an on-the-record colloquy is required to protect against

its wrongful deprivation.        116 Hawaii at 10, 12, 169 P.3d at

962, 964 (citing U.S. Const. amend. XIV; Haw. Const. art. I, §

5).   By not engaging Ui in this colloquy, the district court may

have deprived Ui of the fundamental right that the colloquy was

designed to protect.       The error thus potentially affected rights

that were not only substantial, but also fundamental.

            In assessing whether an error is harmless beyond a

reasonable doubt, we must determine whether there is a

reasonable possibility that the error contributed to the

conviction.     State v. Nofoa, 135 Hawaii 220, 229, 349 P.3d 327,

336 (2015).     If there is a reasonable possibility that the error

contributed to the conviction, “the error is not harmless beyond

a reasonable doubt, and the conviction must be set aside.”               Id.

(citing State v. Gano, 92 Hawaii 161, 176, 988 P.2d 1153, 1168

(1999)).



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            The State contends that the stipulation did not affect

the outcome of the trial since both Wong and Ui testified as to

Ui’s level of intoxication.        Although Ui and Wong’s testimony

did reflect the number and type of alcoholic beverages that Ui

consumed, there is nothing in the record indicating Ui’s height

or weight or the anticipated rate of alcohol dissipation for a

person with Ui’s physical attributes.          In the absence of such

information, there is nothing from which a reasonable trier of

fact could infer Ui’s numerical blood alcohol concentration at

the time of the accident other than the stipulation.18             See State

v. Nakamitsu, No. CAAP–14–0001151, 2016 WL 381475, at *13 (Haw.

App. Jan. 29, 2016), aff’d, 140 Hawaii 157 (2017) (holding that,

without test results, insufficient evidence existed to support

defendant’s conviction for driving with breath alcohol content

over the legal limit despite ample evidence of defendant’s

impairment, including testimony that defendant crashed into

      18
             Because the State did not allege in its initial complaint the
requisite mens rea for the OVUII charge based on Ui’s impairment under HRS §
291E-61(a)(1), Ui’s OVUII conviction could be based only on a violation of
HRS § 291E-61(a)(4), which requires a showing that Ui’s BAC was over the
specified limit. See State v. Apollonio, 130 Hawaii 353, 359, 311 P.3d 676,
682 (2013) (“A charge that fails to charge a requisite state of mind cannot
be construed reasonably to state an offense and thus the charge is dismissed
without prejudice because it violates due process.” (citing State v. Elliott,
77 Hawaii 309, 313, 884 P.2d 372, 376 (1994))); State v. Nesmith, 127 Hawaii
48, 58-61, 276 P.3d 617, 627-30 (2012) (holding that HRS § 291E-61(a)(1)
includes a requisite mens rea element while HRS § 291E-61(a)(4) is a strict
liability method of proof). Thus, contrary to the State’s contention, an
alternative manner to prove guilt in this case was not available, and the
stipulation was necessary to prove Ui’s conviction.




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light pole, had red eyes and smelled of alcohol, failed field

sobriety tests, and stumbled and acted erratically by crying and

using profanity).

           Because the erroneously admitted stipulation formed

the only basis from which a trier of fact could infer Ui’s

numerical BAC, we cannot conclude that the district court’s

error in accepting the stipulation did not contribute to Ui’s

OVUII conviction.     Accordingly, we hold that the district

court’s error was not harmless beyond a reasonable doubt.

           In choosing to invoke our discretionary review of

plain errors, we consider whether the record evinces “errors

which seriously affect the fairness, integrity, or public

reputation of judicial proceedings.”         Miller, 122 Hawaiʻi at 100,

223 P.3d at 165 (emphasis omitted) (quoting State v. Sawyer, 88

Hawaiʻi 325, 330, 966 P.2d 637, 642 (1998)).          We will correct

such errors “to prevent the denial of fundamental rights”--

regardless of whether the error was brought to the attention of

the trial judge or raised on appeal.19         Id. (quoting Sawyer, 88

Hawaii at 330, 966 P.2d at 642).


     19
            The dissent argues that the power to correct plain error should
be exercised “sparingly” and that sua sponte review should be invoked only in
“exceptional cases,” relying on language in State v. Kelekolio, 74 Haw. 479,
515, 849 P.2d 58, 74-75 (1993), and State v. Fox, 70 Haw. 46, 56, 760 P.2d
670, 675-76 (1988). Dissent at 7. This court expressly rejected an
“exceptional cases” standard in Miller, in which we clarified that “the term
‘sparingly’ refers to the limitation already in place in HRPP Rule 52(b) that

                                                             (continued . . .)


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            As stated, the right to have all elements of an

offense proven beyond a reasonable doubt is rooted in structural

principles underlying criminal justice.          The potential wrongful

denial of the presumption of innocence casts doubt upon the

integrity of the system as a whole.         In light of this

foundational importance, invoking plain error review is

appropriate under these circumstances.          See State v. Staley, 91

Hawaii 275, 286-87, 982 P.2d 904, 915-16 (1999) (holding it was

plain error for trial court to fail to engage defendant in a

colloquy prior to accepting defendant’s waiver of fundamental

right to testify); State v. Davia, 87 Hawaii 249, 255, 953 P.2d

1347, 1353 (1998) (holding it was plain error for trial court to

fail to engage defendant in a colloquy prior to accepting

defendant’s no contest plea); Miller, 122 Hawaiʻi at 116, 223

P.3d at 181 (holding plain error review is appropriate when

errors affect the fairness, integrity, or public perception of

judicial proceedings (citing State v. Fox, 70 Haw. 46, 56, 760

P.2d 670, 676 (1988))).



(. . . continued)

the error must be one ‘affecting substantial rights.’” 122 Hawaii at 117,
223 P.3d at 182. We reaffirm Miller’s holding that “where plain error has
been committed and substantial rights have been affected thereby, the better
part of discretion is to invoke the plain error rule.” Id. (quotations and
brackets omitted).




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           The State and the dissent contend that State v. Pratt,

127 Hawaii 206, 277 P.3d 300 (2012), forecloses plain error

review under the circumstances of this case.          Dissent at 9-11.

However, we held in Pratt that it was not plain error for a

court to fail to engage a defendant in a Murray colloquy when

the trial had occurred before this court had decided Murray and

established the colloquy requirement.        127 Hawaii at 212, 277

P.3d at 306.   In contrast, the present case centers on a trial

court’s failure to implement clearly established law.

           The dissent interprets Pratt to suggest that plain

error review of a trial court’s failure to conduct a Murray

colloquy is inappropriate when counsel’s statements suggest the

defendant initiated or participated in the decision to stipulate

to an element of the offense.       Dissent at 9-11.     This approach

is misframed as a plain error standard, and it amounts to

inferring the voluntariness and knowingness of a defendant’s

waiver of fundamental rights from the statements of defense

counsel.   Respectfully, such a rule is plainly inconsistent with

our precedents.

           This court has often stated expressly that the

“[w]aiver of a defendant’s fundamental rights . . . must come

directly from the defendant.”       Murray, 116 Hawaii at 10, 169

P.3d at 962 (emphasis added); accord State v. Ibuos, 75 Haw.



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118, 121, 857 P.2d 576, 578 (1993).        A waiver by defense counsel

on the defendant’s behalf is insufficient.         State v. Young, 73

Haw. 217, 221, 830 P.2d 512, 514 (1992) (“[I]t is the defendant

who must make the waiver, upon being well informed of his right

to trial by jury.” (emphasis added)); accord Ibuos, 75 Haw. at

120 n.1, 857 P.2d at 577 n.1; State v. Gomez-Lobato, 130 Hawaii

465, 481, 312 P.3d 897, 913 (2013) (Acoba, J., concurring).

Indeed, we have expressly refused to speculate regarding the

substance of privileged communications surrounding a waiver, as

the dissent would have us do here, stating that “a court may not

rely upon an off-the-record discussion between counsel and a

defendant to establish a valid waiver of a constitutional

right.”   State v. Eduwensuyi, 141 Hawaii 328, 336, 409 P.3d 732,

740 (2018).

           We have even declined to find a knowing, intelligent,

and voluntary waiver of fundamental rights when the defendant

personally signs a written form or the court engages the

defendant in an incomplete or deficient colloquy--neither of

which occurred in this case.      See, e.g., id.; State v. Baker,

132 Hawaii 1, 7, 319 P.3d 1009, 1015 (2014); Gomez-Lobato, 130

Hawaii at 472-73, 312 P.3d at 904-05.        And we have often invoked

plain error review in doing so.       See, e.g., State v. Ichimura,

SCWC-13-0000396, 2017 WL 2590858, at *7 (Haw. June 15, 2017);



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Gomez-Lobato, 130 Hawaii at 469 n.4, 312 P.3d at 901 n.4.; see

also State v. Vaitogi, 59 Haw. 592, 593 n.4, 594, 585 P.2d 1259,

1260 n.4, 1261 (1978) (holding it was plain error for the trial

court to fail to engage the defendant in an on-the-record

colloquy prior to accepting a guilty plea).

          Our precedents do not permit a reviewing court to

infer that a fundamental right was knowingly, voluntarily, and

intelligently relinquished by a defendant simply because defense

counsel suggested that the right was so waived.          Given the

complete lack of an on-the-record colloquy and personal waiver

in this case, we conclude that the trial court plainly erred.

                            IV.   CONCLUSION

          We hold that the district court plainly erred in

failing to conduct an on-the-record colloquy as required by our

decision in Murray.     Thus, the court also erred in accepting the

stipulation as evidence proving that Ui’s BAC was .08 or more

grams of alcohol per one hundred milliliters or cubic

centimeters of blood.     The district court’s error was not

harmless, and the stipulation regarding Ui’s blood test must be

set aside.   Accordingly, the ICA’s June 30, 2016 Judgment on

Appeal is affirmed in part and vacated in part.          We affirm the

ICA’s Judgment on Appeal to the extent that it vacated Ui’s

conviction under HRS § 286-102(b) and remanded to the district




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 court with instructions to dismiss the HRS § 286-102(b) charge

 without prejudice.    We vacate the ICA’s Judgment on Appeal to

 the extent that it affirmed Ui’s conviction under HRS § 291E-

 61(a)(4) and also vacate Ui’s district court conviction for this

 offense, and the case is remanded to the district court for

 further proceedings.

Steven T. Barta                        /s/ Sabrina S. McKenna
for petitioner
                                       /s/ Richard W. Pollack
David Blancett-Maddock
for respondent                         /s/ Michael D. Wilson




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