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                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  25-JUN-2020
                                                  09:52 AM

                           NO. CAAP-XX-XXXXXXX


                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee,
                                   v.
                 RADCLIFF LESLIE, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                           HONOLULU DIVISION
                       (Case No. 1DTA-18-02472)


                       SUMMARY DISPOSITION ORDER
          (By:   Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

            Defendant-Appellant Radcliff Leslie (Leslie) was
charged with Operating a Vehicle Under the Influence of an
Intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1).1 At trial, the State and Leslie's attorney
stipulated that Honolulu Police Department (HPD) officer Sheldon
Watts was qualified to administer the standard field sobriety
test (SFST). Leslie was convicted. He appeals from the "Notice
of Entry of Judgment and/or Order and Plea/Judgment" (Judgment),
entered by the District Court of the First Circuit, Honolulu



     1
            HRS § 291E-61 (Supp. 2017) provides, in relevant part:

            (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[.]
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Division, State of Hawai#i,2 on November 21, 2018. The only
issue presented on appeal is whether the district court erred by
failing to place Leslie's personal consent to the stipulation on
the trial record. We affirm the Judgment based on State v.
Wilson, 144 Hawai#i 454, 445 P.3d 35 (2019).
          Officer Watts testified that on July 11, 2018, at about
10:15 p.m., he was dispatched to investigate a vehicle stopped at
the intersection of Queen Emma Street and Vineyard Boulevard. He
saw a black Toyota Tacoma pickup truck with the windows rolled
down. He stopped alongside the truck and observed it while the
traffic signal lights cycled twice. The engine was running. The
truck did not move. Officer Watts looked inside the truck and
saw Leslie asleep in the driver's seat. He took three photo-
graphs of the truck in the roadway with Leslie asleep at the
wheel. Officer Watts placed the truck in park, woke Leslie, and
asked if he was okay. As they spoke, Officer Watts smelled a
strong odor of alcohol on Leslie's breath, and saw that Leslie's
eyes were red and watery. Leslie produced his driver's license,
vehicle registration, and insurance card, and agreed to take the
SFST.
          At that point, the deputy prosecuting attorney informed
the district court of the parties' stipulation:

                So the stipulation would be that the officer, that
          Officer Watts is trained and qualified to administer and
          evaluate a standardized field sobriety test pursuant to
          Honolulu Police Department protocol and training and pur-
          suant to the National High -- National Highway Traffic
          Safety Administration standards.

                And with that, the officer could testify to his obser-
          vations and would not mention anything about nystagmus,
          actual nystagmus of the eyes during the Horizontal Gaze
          Nystagmus portion of the test or without mentioning actual
          clues or passing or failing. So basically the observations
          during the field sobriety test.

                THE COURT:   [Defense Counsel].
                [DEFENSE COUNSEL]:   That's correct.




     2
          The Honorable Randal I. Shintani presided.

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The district court then addressed Leslie:

                Okay. Mr. Leslie, what a stipulation is from a legal
          standpoint is it's been offered to the court that Officer
          Watts is qualified and trained to administer and evaluate
          what is called the field sobriety test.
                His training was pursuant or via Honolulu Police
          Department protocol or training was well as the -- what they
          call NHTSA, National Highway Safety Transportation Agency
          [sic], in terms of what the training is required to
          administer as well as evaluate the field sobriety test.

                If the court accepts the stipulation, the court
          accepts as fact that in fact Officer Watts is properly
          trained pursuant to these training requirements of HPD as
          well as NHTSA to administer and evaluate what is called the
          field sobriety test.

                So I take it as a fact that is stipulated to. Your
          attorney and the prosecutor would not be able to question
          the qualification of the officer if I accept the
          stipulation.
                There is also limitations as you heard. Officer Watts
          would not be able to testify as to observing what they call
          nystagmus and/or to opine as to any clues pass or fail
          opinions. He will only be able to testify as to what they
          call observations that he as a lay -- well, as he observed
          during the performance and evaluation of the field sobriety
          test.

                So do you understand what a stipulation is?

                [LESLIE]:   Yes, Your Honor.

                THE COURT: Okay. So your attorney has so stipulated.
          The prosecutor has so stipulated. And so the court will
          accept the stipulation.

          The district court did not ask Leslie on the record
whether Leslie agreed to or approved the stipulation. Leslie
contends that constitutes plain error, relying on State v.
Murray, 116 Hawai#i 3, 169 P.3d 955 (2007). In Murray the
supreme court held that "a knowing and voluntary waiver of a
defendant's fundamental right must come directly from the
defendant, and requires the court to engage in a colloquy with
the defendant." Id. at 11, 169 P.3d at 963 (citation omitted).
The fundamental right at issue in Murray was the defendant's
right to have the State prove every element of an offense to a




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jury beyond a reasonable doubt.3 Other fundamental rights for
which a colloquy with the defendant is required include the right
to a jury trial, State v. Gomez-Lobato, 130 Hawai#i 465, 312 P.3d
897 (2013); the right to confront witnesses, State v. Casey, 51
Haw. 99, 451 P.2d 806 (1969); the right to testify, Tachibana v.
State, 79 Hawai#i 226, 900 P.2d 1293 (1995); and the right to not
testify, State v. Torres, 144 Hawai#i 282, 439 P.3d 234 (2019).
          In State v. Wilson, 144 Hawai#i 454, 445 P.3d 35
(2019), however, the supreme court held that a colloquy was not
required where the defendant's attorney stipulated to a police
officer's qualifications to conduct an SFST:

            [T]he stipulation in this case did not establish facts
            satisfying any elements of the charged offense. To convict
            Wilson of OVUII, the State was required to prove that she
            operated a vehicle "while under the influence of alcohol in
            an amount sufficient to impair her normal mental faculties
            or ability to care for herself and guard against casualty."
            HRS § 291E-61(a)(1). Stipulating that the officer was
            "qualified and certified to conduct the SFST and that he
            received specialized training in administering and grading
            all of the SFSTs" is not in itself proof that Wilson was
            operating a vehicle or that she was impaired. Thus, the
            stipulation in this case did not amount to a waiver of
            Wilson's fundamental right to have every element of a
            charged offense proven beyond a reasonable doubt.
                  Neither did the stipulation significantly impinge on
            Wilson's confrontation rights. Unlike the evidentiary
            stipulation at issue in Casey, the stipulation in this case
            did not serve as a substitute for evidence from which a
            factfinder could conclude that any element of the charged
            offenses was satisfied in whole or in part. Instead, this
            stipulation was to an evidentiary foundation involving the
            qualifications of a witness. Under the circumstances, we
            cannot say that the stipulation so infringed upon Wilson's
            right to confront Officer Hattori that a colloquy was
            required.

Id. at 464-65, 445 P.3d at 45-46 (cleaned up) (footnote omitted).
In this case, as in Wilson, the district court was not required


      3
            The defendant in Murray was being prosecuted for Abuse of a Family
or Household Member, as a class C felony, in violation of HRS § 709-906(1) and
(7) (Supp. 2006). In order to establish a class C felony, the State was
required to prove that the defendant had at least two prior convictions for
abuse of a family or household member, and the alleged offense occurred within
two years of the second or prior conviction. During the hearing on pretrial
motions, defense counsel stipulated that the defendant had prior convictions
within two years; defense counsel then argued that evidence of the prior
convictions need not be presented to the jury because of the stipulation.

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to have a colloquy with Leslie before accepting his stipulation
to Officer Watts's qualifications to administer the SFST.
          The "Notice of Entry of Judgment and/or Order and
Plea/Judgment" entered by the district court on November 21,
2018, is affirmed.
          DATED: Honolulu, Hawai#i, June 25, 2020.

On the briefs:

Stephen K. Tsushima,                  /S/ Lisa M. Ginoza
for Plaintiff-Appellee.               Chief Judge

Earle A. Partington,                  /s/ Derrick H.M. Chan
for Defendant-Appellant.              Associate Judge

                                      /s/ Keith K. Hiraoka
                                      Associate Judge




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