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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-13-0000396
                                                                15-JUN-2017
                                                                08:16 AM




                              SCWC-13-0000396

             IN THE SUPREME COURT OF THE STATE OF HAWAI#I


          STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                     vs.

          DEIRDRE ICHIMURA, Petitioner/Defendant-Appellant.


           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-13-0000396; CR. NO. 12-1-1497)

                         MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

            Deirdre Ichimura (Ichimura or defendant) was charged

 with assaulting a law enforcement officer.          The incident occurred

 when the officer was attempting to arrest Ichimura pursuant to an

 arrest warrant.    Ichimura was tried before a jury and did not

 testify at trial.1    The jury found her guilty.



      1
            The Honorable Patrick W. Border presided.
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             On appeal to the Intermediate Court of Appeals (ICA),

Ichimura argued that the trial court abused its discretion when

it permitted a police officer to testify that Ichimura appeared

to be “more on drugs than under a mental illness” at the time of

the incident, and that he believed that the court who issued

Ichimura’s arrest warrant “would have been made aware if

[Ichimura] had a mental illness.”           The ICA affirmed Ichimura’s

conviction, and she sought review in this court.

             We conclude that the circuit court erred in admitting

the police officer’s statements.           We also conclude that the

circuit court erred in failing to conduct a proper colloquy

regarding Ichimura’s right to testify as required by State v.

Tachibana, 79 Hawai#i 226, 900 P.2d 1293 (1995).             Accordingly, we

vacate the ICA’s Judgment on Appeal and the circuit court’s

Judgment of Conviction and Sentence, and remand to the circuit

court for further proceedings consistent with this opinion.

                               I.   Background

A.     Circuit Court Proceedings

             Ichimura was charged by complaint with Assault Against

a Law Enforcement Officer in the Second Degree, in violation of




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HRS § 707-712.6 (Supp. 2012).2         The complaint alleged that on

December 30, 2011, Ichimura “did recklessly cause bodily injury

to Vincent Gonzales, a law enforcement officer who was engaged in

the performance of duty[.]”

     1.    Trial

           Prior to the beginning of trial, the court conducted a

colloquy with Ichimura:
           THE COURT: I want to briefly address, if I
           might, Ms. Ichimura.
                 I want you to know that you have a
           Constitutional right to testify in your own defense.
           You should consult with your lawyer regarding the
           decision to testify because, of course, he’s a good
           strategist and he has access to other people who are
           also good strategists. So it’s a decision that’s made
           with care, but it’s your decision; and if you decide
           that you want to testify, no one can prevent you from
           testifying, if it’s your decision.
                 So you also have the Constitutional right not to
           testify and to remain silent.
                 Oh, I should point out, if you do testify, of
           course, after your attorney is finished questioning
           you, then the State’s attorney would also have the
           opportunity to cross-examine you. Of course, the
           prosecutor’s function is to undercut witnesses’
           testimony, so you could assume that that would be
           probably not -- not friendly questioning in contrast


     2
           HRS § 707-712.6 provides:

           (1) A person commits the offense of assault against a
           law enforcement officer in the second degree if the
           person recklessly causes bodily injury to a law
           enforcement officer who is engaged in the performance
           of duty.

           (2) Assault of a law enforcement officer in the second
           degree is a misdemeanor. The court shall sentence the
           person who has been convicted of this offense to a
           definite term of imprisonment, pursuant to section
           706-663, of not less than thirty days without
           possibility of probation or suspension of sentence.


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           to your own attorney’s questioning.
                 You also have the Constitutional right not to
           testify and to remain silent, and that’s your
           decision. If you choose not to testify, I will
           specifically inform the jury that it may not hold your
           decision against you, that it cannot hold your silence
           against you in deciding your case or even considering
           that as one factor. They have to ignore it
           altogether.
                 If you have not testified by the end of the
           trial I will briefly question you to make sure that it
           is your decision not to testify. You don’t have to
           decide anything right now. The State can put on its
           whole case and -- so you have time to make that
           decision.
                 But do you understand all that I’ve described,
           that these decisions to testify or not to testify are
           your decisions?

           [ICHIMURA]: (No audible response.)

           THE COURT: All right.   Very good.

           During opening statements, the Deputy Prosecuting

Attorney (DPA) told the jury that they would hear testimony from

police officers about responding to the scene of a reported purse

theft, and encountering Ichimura.         The DPA further said that the

officers would testify about Ichimura’s erratic behavior, her

refusal to respond to the officers’ commands, and that she kicked

Officer Gonzales in the knee and groin area.

           Defense counsel’s opening statement began by explaining

that Ichimura is a diagnosed schizophrenic, and that her way of

interacting with people “is not the typical way you or I might

interact with somebody.      She’s going to exhibit symptoms.”

Defense counsel then asserted that the evidence in the case would

show that “what the police claim happened is not actually what


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happened in this case,” and that Ichimura did not kick any of the

officers.

            The State’s evidence established that when police

officer Christopher Nutter arrived at the scene, he saw two

people walking away and Ichimura waiving her hands at him and

flagging him down.      Officer Nutter testified that Ichimura was

acting “[e]xcited, kind of hurried, [and] urgent[,]” and that

Ichimura told him that the two people walking away had possession

of her bag.    Officer Nutter told the people to stop and received

their permission to show Ichimura their bag.           Ichimura could not

describe “anything that would have been in the bag or what the

bag looked like[.]”      Ichimura’s mother, Betty Ichimura (Betty),

who was with Ichimura at the scene, was “adamant” that the bag

did not belong to Ichimura.

            Ichimura insisted that Officer Nutter make a theft

report, and he informed her that he would.3           Police officers

Denny Santiago and Vincent Gonzalez then arrived on the scene.

While Officer Nutter was completing the report, he heard Ichimura

engaging in some “verbal back-and-forth” with Officer Santiago.

Officer Nutter further stated that Ichimura was acting:
            Just irrational--I mean, I understand that people get
            upset. But typically when people call us to make the


      3
            Officer Nutter did not complete the theft report for Ichimura’s
bag because he was interrupted by the subsequent events.

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           reports they understand that we are--we have safety to
           be concerned with. We don’t want them reaching in
           bags, we don’t want them going all over the place,
           getting into it with other people around them, stuff
           like that. They usually--most people let us--let us
           do our part of the job without acting irrationally.

           . . . .
           [Ichimura was i]nsisting on reaching in bags,
           disregarding officers’ requests to stay in one place,
           answer questions without yelling at the officers,
           things like that.

           Officer Santiago testified that Ichimura was “extremely

upset, very agitated,” was on a “rant,” and was “very loud

spoken, almost to a point where yelling.”          Officer Santiago also

testified that, based on Ichimura’s behavior, it appeared to him

that Ichimura was more likely under the influence of drugs rather

than suffering from a mental illness:
           PROSECUTOR: Okay. So again, you didn’t make any--did
           you make any judgment--I’m sorry--about whether she,
           you know, was high or whether she was mental?

           OFFICER SANTIAGO: It appeared to me that it would
           lean more towards being on something. There’s
           sometimes clues when somebody has mental illness, if
           they’re–-

           Defense counsel then objected as to foundation, which

the court sustained.     The DPA asked Officer Santiago whether he

had been trained to recognize signs of drug intoxication.

Officer Santiago replied that he received annual training from

his department psychologist on “ways to recognize and ways to

deal with people with mental illness.”         He also stated that his

training applied to people that are under the influence of drugs.

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Over the objection of the defense, the circuit court allowed

Officer Santiago to answer, reasoning that it went toward his

state of mind, which would help explain his interaction with

Ichimura:
            PROSECUTOR: Okay. And, so, based on your training,
            then, and experience, what is your opinion of the way
            Defendant was behaving?

            OFFICER SANTIAGO:   It seemed to me that she was more–-

            DEFENSE COUNSEL: And, again, Your Honor, I’m going to
            object as to foundation.

            THE COURT: Well, he may testify based on the
            foundation as to what his perception was, which may in
            turn give you some leads as to what he did. But
            it--it--it’s not for the truth of the matter as such,
            but he can describe his--his reaction. So I’ll allow
            the testimony for that limited purpose.

            . . . .

            OFFICER SANTIAGO: It appeared to be that she was more
            on drugs than having a mental illness.

            PROSECUTOR: But you didn’t know whether she was on
            drugs or not; right?

            OFFICER SANTIAGO:   No.

            Officer Nutter stated that Ichimura’s uncooperative

behavior led him to check for an outstanding warrant.                 Officer

Santiago testified that while the officers were waiting for

police dispatch to confirm the warrant, Ichimura started yelling

for “somebody to call the police,” and that she “kn[ew] her

rights” and “doesn’t have a warrant.”

            The check came back with a warrant for Ichimura, and

the officers had her sit down on the curb because they determined


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that she was so upset and angry that she might run away or hurt

someone.   Officer Santiago feared that Ichimura might grab

something like a weapon that could hurt them, so he told Ichimura

to “not to go through her bag.”

           Officer Santiago testified that during the incident, he

was not informed whether Ichimura had a mental illness or

physical ailment.     Officer Santiago also testified that even if

he had known that Ichimura had a mental illness, the illness

“didn’t seem to impair [Ichimura] to the point where [he]

wouldn’t arrest her for the warrant,” and it would not have

affected the process in which he arrested Ichimura.            Officer

Santiago further testified that the court that issued the warrant

for her arrest “would have been made aware if [Ichimura] had a

mental illness because that might have affect --[.]”            Before he

could finish his sentence, defense counsel objected based on

speculation and foundation and moved to strike the response.                 The

court replied that “the question--once again, it involves the

state of mind, and the question of would he have done anything

differently . . . calls for some assumptions on his part.             So I’m

going to allow the testimony.”       Officer Santiago answered that he

would not have handled the case any differently if he had known

Ichimura had a mental illness.

           Officer Gonzalez also told Ichimura several times to

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stop going through her bag, as the officers were concerned about

their safety.    However, Ichimura began to go through her bag, and

when she did not stop, Officer Gonzalez leaned over Ichimura as

she sat on the curb, grabbed the bag, and tried to pull it from

her.   Ichimura rolled onto her back and started kicking, and her

kick connected with Officer Gonzalez’ groin, which he described

as very painful.

           Officer Gonzalez turned to the side to avoid being

kicked again and continued to hold onto the bag, worried for his

safety because he was not sure if the bag contained a weapon.                As

Officer Gonzalez blocked his groin with his leg, Ichimura kicked

his leg several times.

           After Ichimura was handcuffed and taken to a police

car, Officer Gonzalez asked Ichimura several times to bring her

legs into the car, but she refused to do so.          As Officer Gonzalez

reached down to place Ichimura’s legs into the car, Ichimura

rolled onto her back and kicked Officer Gonzalez once again in

his groin, and, when he turned to the side, she kicked his leg

and then his kneecap.     Officer Gonzalez told Ichimura to stop

kicking, and when she did not stop, he took out his pepper spray

and “gave her a one-second burst into her face.”           The pepper

spray caused Ichimura to stop kicking.

           After the State rested its case, the court held a bench

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conference on the record with counsel and the defendant:
           THE COURT: (Indiscernible) do you wish to
           testify? Do you remember a day or two ago
           (indiscernible) testify if you wanted to
           (indiscernible)?
                 So it’s your choice.
                 Now, you’ve seen how the process works, so
           (indiscernible) if you testify [the deputy prosecuting
           attorney] will cross-examine you (indiscernible)
           friendly questioning. So you have to -- if you -- if
           you do decide to testify, you have to (indiscernible)
           cross-examination.
                 You also have the right not to testify. You
           don’t have to say anything (indiscernible).
           (Indiscernible) tell the jury that they can’t hold
           that against you (indiscernible).
                 Do you understand the things that I've told you
           this morning -- just now, while we’re up here?

           THE DEFENDANT:   Uh-huh.

           THE COURT: Okay. So are there any other
           witnesses (indiscernible)?

           [DEFENSE COUNSEL]:   Yes, Your Honor.

           THE COURT: Okay.   (Indiscernible).

           THE DEFENDANT:   (Indiscernible).

           THE COURT: Okay. And after that, you really
           have to decide, and it’s your decision.
                 So (indiscernible), do you want to testify?

           THE DEFENDANT:   I think I should.

           THE COURT:   You’re still going to talk about it?

           [DEFENSE COUNSEL]:   Yeah.

           THE COURT: Okay. Just remember, he’s learned
           counsel. (Indiscernible).
                 Okay?

           THE DEFENDANT:   Okay.

           THE COURT:   All right.

           Betty Ichimura testified on behalf of the defense.

Betty testified that Ichimura cooperated with the officers and


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that she did not see Ichimura either kick or strike any of the

officers.     Betty also testified that Ichimura had a handicap, for

which she takes medication and is treated by a psychiatrist.

             The defense rested its case.        The court then stated

that the evidence-taking portion of the trial was over, and

excused the jury.         The court then held another conference

regarding Ichimura’s decision on whether to testify:
             THE COURT: The jury has now departed. The
             parties remain.
                   I would like to ask one more time now,
             Ms. Ichimura. I -- I know you kind of sounded
             like you wanted to testify. Your side has rested.
             So your mom testified but you didn’t.
                   Now, what is your preference on testimony?
             Because I can still open up the case again and
             let you testify if you want to.
                   Okay?

             THE DEFENDANT:   No, thank you.

             THE COURT:   I’m sorry?

             THE DEFENDANT:   No, thank you.

             THE COURT: Okay. That means you don’t want to
             testify. Very good, then. That means that the
             case – the testimonial part of the case is over.

             The jury found Ichimura guilty as charged.           The court

entered its Judgment of Conviction and Sentence on March 14,

2013, sentencing Ichimura to one year of probation, 180 days of

imprisonment, and various fees.          Execution of sentence was stayed

pending disposition of Ichimura’s case on appeal.

B.     ICA Appeal

             On appeal to the ICA, Ichimura argued that the trial

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court abused its discretion when it permitted Officer Santiago to

testify that:    (1) it appeared “Ichimura was more on drugs than

under a mental illness”; and (2) his belief that the issuing

court for Ichimura’s warrant for arrest “would have been made

aware if she had a mental illness.”

           The State argued that the trial court properly

exercised its discretion in allowing Officer Santiago’s first

statement.   The State agreed that Officer Santiago’s second

remark was speculative, but contended it was harmless because it

did not distract the jury from determining the elements of the

offense.

           In a Summary Disposition Order, the ICA concluded that

the trial court did not abuse its discretion in allowing Officer

Santiago’s first statement.        The ICA concluded that the trial

court should not have permitted Officer Santiago’s second

statement, but that any error was harmless.          Therefore, the ICA

affirmed the circuit court’s judgment, and filed its Judgment on

Appeal on May 10, 2016.

                             II.    Discussion

           Ichimura’s application for writ of certiorari presents

two questions:
           Whether the ICA gravely erred when it held that the
           trial court did not abuse its discretion when it
           permitted a police officer who was present at the
           scene of the incident to testify that

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            (1) Ichimura “appeared to be under the influence of
            drugs rather than suffering from a mental illness” and

            (2) that the judge who issued a bench warrant for
            Ichimura’s arrest for an unrelated matter would have
            known whether or not Ichimura had a mental illness.

            For the following reasons, we determine that the

circuit court erred in admitting Officer Santiago’s statements at

trial and failing to conduct a proper Tachibana colloquy with

Ichimura.

            We find that Officer Santiago’s testimony during trial

that:   (1) it appeared Ichimura was “more on drugs than having a

mental illness;” and 2) he assumed that the court who issued

Ichimura’s arrest warrant “would have been made aware if

[Ichimura] had a mental illness” was improper.           Officer

Santiago’s first statement was improper because it lacked

foundation and in any event was not relevant to explain the

officer’s subsequent actions.        Thus, the circuit court should

have sustained defense counsel’s objection.           Officer Santiago’s

second statement was improper because it was based on mere

speculation, and therefore the circuit court should have stricken

the testimony as requested by defense counsel.

            Although we determine that the circuit court erred in

permitting Officer Santiago’s statements at trial, we need not

address whether the error was harmless because we conclude that



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the circuit court plainly erred in failing to conduct a proper

colloquy with Ichimura regarding her decision not to testify at

the end of the trial.4

            In Tachibana v. State, this court held that in order to

“protect the right to testify under the Hawai#i Constitution,

trial courts must advise criminal defendants of their right to

testify and must obtain an on-the-record waiver of that right in

every case in which the defendant does not testify.”             79 Hawai#i

226, 236, 900 P.2d 1293, 1303 (1995).          “A defendant’s waiver of a

constitutional right must be knowing, intelligent, and

voluntary.”    State v. Staley, 91 Hawai#i 275, 287, 982 P.2d 904,

916 (1999).    This court stated that when conducting the colloquy,

the trial court must “be careful not to influence the defendant’s

decision whether or not to testify and should limit the colloquy

to advising the defendant”:
            that he [or she] has a right to testify, that if he
            [or she] wants to testify that no one can prevent him
            [or her] from doing so, [and] that if he [or she]
            testifies the prosecution will be allowed to
            cross-examine him [or her]. In connection with the
            privilege against self-incrimination, the defendant
            should also be advised that he [or she] has a right


      4
            Accordingly, we find it unnecessary to address the timing of this
colloquy, which took place after the defense rested, or to address the lack of
an audible response from Ichimura during the pretrial colloquy. See State v.
Han, 130 Hawai#i 83, 89, 306 P.3d 128, 134 (2013) (finding pretrial colloquy
“problematic” when there was no audible response by defendant reflected on the
record, since it was not known whether the defendant was able to understand
the court’s advisement, thus precluding appellate review of the adequacy of
the advisement). However, in view of the inadequacy of the colloquy during
the trial, we need not address the effect of the pretrial colloquy. Id.

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            not to testify and that if he [or she] does not
            testify then the jury can be instructed about that
            right.

Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7 (quotation

omitted).

            Here, the circuit court failed to engage Ichimura in a

proper Tachibana colloquy after the State rested its case.             The

court stated to Ichimura that:        (1) if she testified, then she

would be subject to cross-examination; and (2) she had the right

not to testify.     The colloquy was insufficient because the court

failed to inform Ichimura that:        (1) she had a right to testify;

and (2) if she wanted to testify that no one could prevent her

from doing so.     Id. (quotation omitted).

            Further, the circuit court did not obtain a proper on-

the-record waiver of Ichimura’s right to testify.            This court has

stated that “colloquy between the judge and a defendant involves

a verbal exchange in which the judge ascertains the defendant’s

understanding of the defendant’s rights.”          State v. Han, 130

Hawai#i at 84, 306 P.3d at 129.       The “failure to engage in a true

exchange to ascertain the defendant’s understanding of the

individual rights comprising the Tachibana colloquy results in

the failure to ‘ensure that [the defendant] understood his rights

[and] amounts to a failure to obtain the on-the-record waiver

required by Tachibana.’”       State v. Pomroy, 132 Hawai#i 85, 93,


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319 P.3d 1093, 1101 (2014) (emphasis added) (citing Han, 130

Hawai#i at 91, 306 P.3d at 136); see also Staley, 91 Hawai#i at

287, 982 P.2d at 916 (citation and internal quotation marks

omitted) (“[I]f the [trial] court does not establish on the

record that the defendant has waived his [or her] right to

testify, it is extremely difficult to determine at a

post-conviction relief hearing whether such a waiver occurred.”).

           Here, the court “recited a litany of rights[,]” and

then asked Ichimura if she “unders[tood] the things that [it]

told her.”   See Pomroy, 132 Hawai#i at 93, 319 P.3d at 1101.            In

response, Ichimura simply said, “Uh-huh.”          Moreover, this court

has stated that the presence of a “salient fact” concerning the

defendant’s ability to understand the colloquy “require[s] that a

court effectively engage the defendant in a dialogue that will

effectuate the rationale behind the colloquy and the

on-the-record waiver requirements as set forth in Tachibana.”

Han, 130 Hawai#i at 92, 306 P.3d at 137 (citing Tachibana, 79

Hawai#i at 235, 900 P.2d at 1302); see also United States v.

Duarte–Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997) (stating

that a “salient fact,” like a defendant’s language barrier or

mental illness, that is known to the court, “put[s] the court on

notice that [the defendant’s] waiver might be less than knowing

and intelligent,” and serves as an additional reason for the

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court to engage in a colloquy with the defendant “to carry out

its ‘serious and weighty responsibility’ of ensuring that a

defendant’s jury waiver is voluntary, knowing, and intelligent”).

            In the instant case, Ichimura’s mother testified that

Ichimura had a “handicap” for which she took medication, and that

she was being treated by a psychiatrist.           This was a “salient

fact” of which the circuit court was aware, and thus should have

served as an additional reason for the court to conduct a more

searching inquiry of Ichimura, rather than relying on her “Uh-

huh” response to a list of rights.         Similarly, given Ichimura’s

initial inclination to testify when first engaged by the court

after the State rested, the court should have conducted a more

searching inquiry when it spoke with her again at the end of the

defense’s case.

            This court has held that “to determine whether a waiver

[of a fundamental right] was voluntarily and intelligently

undertaken, this court will look to the totality of the facts and

circumstances of each particular case.”          Han, 130 Hawai#i at 89,

306 P.3d at 134.     Here, given the totality of the circumstances,

Ichimura’s waiver was not voluntarily and intelligently made.5

“[W]here plain error has been committed and substantial rights

      5
            At oral argument before this court, the State conceded that the
colloquy at the end of trial did not comply with Tachibana’s requirements, and
thus that there was a Tachibana violation.

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have been affected thereby, the error may be noticed even though

it was not brought to the attention of the trial court.”             State

v. Miller, 122 Hawai#i 92, 117, 223 P.3d 157, 182 (2010)

(brackets and emphasis omitted) (quoting State v. Kaiama, 81

Hawai#i 15, 25, 911 P.2d 735, 745 (1996)); see also Hawai#i Rules

of Penal Procedure Rule 52(b) (1977).          Given the circumstances

here, we conclude that Ichimura’s substantial rights were

affected by the circuit court’s errors.

            The circuit court’s failure to conduct an adequate

colloquy was not harmless.       “Once a violation of the

constitutional right to testify is established, the conviction

must be vacated unless the State can prove that the violation was

harmless beyond a reasonable doubt.”          Tachibana, 79 Hawai#i at

240, 900 P.2d at 1307 (citations omitted).          “[I]t is inherently

difficult, if not impossible, to divine what effect a violation

of the defendant’s constitutional right to testify had on the

outcome of any particular case.”          State v. Hoang, 94 Hawai#i 271,

279, 12 P.3d 371, 379 (2000) (citation omitted).           Here, the

record does not offer any indication as to what Ichimura would

have said under oath on the witness stand.          See id. (citation

omitted).    Thus, it cannot be said that the circuit court’s

inadequate colloquy was harmless beyond a reasonable doubt,

Tachibana, 79 Hawai#i at 240, 900 P.2d at 1307, because it is

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unknowable from the record whether any testimony by Ichimura

would have established reasonable doubt that she committed the

offense charged, see Pomroy, 132 Hawai#i at 94, 319 P.3d at 1102.

           Therefore, we conclude that the circuit court erred in

failing to conduct a proper Tachibana colloquy.

                            IV.   Conclusion

           For the foregoing reasons, the circuit court erred in

admitting the two challenged statements of Officer Santiago, and

failing to conduct a proper Tachibana colloquy with Ichimura.

Accordingly, we vacate the ICA’s May 10, 2016 Judgment on Appeal

and the circuit court’s March 14, 2013 Judgment of Conviction and

Sentence, and remand this case to the circuit court for further

proceedings consistent with this opinion.

           DATED:   Honolulu, Hawai#i, June 15, 2017.

Elika O. Stimpson                         /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
James M. Anderson
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




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