    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-16-0000558
                                                              18-JAN-2018
                                                              08:01 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                         BENJAMIN EDUWENSUYI,
                   Petitioner/Defendant-Appellant.


                            SCWC-16-0000558

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-16-0000558; CASE NO. 1DTA-16-00425)

                            JANUARY 18, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

           The appeal in this case arises from a challenge by

Benjamin Eduwensuyi to the validity of his waiver of the right

to testify at trial and the propriety of the conviction that

ensued.   We hold that the record does not support a conclusion

that Eduwensuyi’s waiver of the right to testify was

voluntarily, intelligently, and knowingly made.          Because the
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


error was not harmless beyond a reasonable doubt, we vacate the

conviction and remand the case for further proceedings.

                   I.       FACTS AND PROCEDURAL HISTORY

               On February 1, 2016, Eduwensuyi was charged by

complaint in the Honolulu District Court of the First Circuit

(district court) with operating a vehicle under the influence of

an intoxicant in violation of Hawaii Revised Statutes (HRS) §

291E-61(a)(1).1         A bench trial took place on July 11, 2016.2

Prior to the presentation of evidence, the district court

advised Eduwensuyi as follows:

                     THE COURT: . . . I have to advise you that you have a
               right to testify if you choose to do so.

                     THE DEFENDANT: Yes, Your Honor.

                     THE COURT: And you also have a right not to testify.
               That’s up to you. I’ll question you further toward the end
               of the trial as to whether or not you want to waive either
               of these rights, to make sure that you’ve been fully
               informed of your rights and to make sure that any decision
               you make is your decision, it’s voluntary, okay. So your
               attorney can give you advice about whether or not you
               should or should not testify, but ultimately, it’s your
               decision. Do you understand that?



      1
               HRS § 291E-61(a)(1) (Supp. 2015) provides as follows:

               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[.]
      2
               The Honorable Richard J. Diehl presided over the trial
proceedings.




                                         2
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

                  THE DEFENDANT: Yes, Your Honor.

                  THE COURT: Okay, very well.   We can readily proceed
          then.

          The State presented the testimony of one witness,

Officer Jessie Takushi of the Honolulu Police Department.

Officer Takushi testified that at approximately 4:37 a.m. on

January 17, 2016, he stopped a vehicle occupied by Eduwensuyi

for multiple traffic infractions, including crossing a double

solid yellow line.

          According to Officer Takushi, as he was approaching

Eduwensuyi’s vehicle, he saw Eduwensuyi climbing from the

driver’s seat into the passenger’s seat.            When Officer Takushi

reached the vehicle, he noticed that there was a different male

in the driver’s seat and that Eduwensuyi was “kind of laying

down on the passenger’s side with his feet still in the driver’s

seat area.”

          Officer Takushi testified that he asked Eduwensuyi for

his driver’s license, registration, and insurance, which

Eduwensuyi provided.      Officer Takushi stated that Eduwensuyi’s

eyes were red and watery, his speech was slurred, and an odor of

alcohol emanated from inside the vehicle.            At Officer Takushi’s

request, Eduwensuyi agreed to participate in the standardized

field sobriety test.      According to Officer Takushi, Eduwensuyi

was unsteady on his feet, he swayed while standing, and he


                                      3
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


dragged his feet when walking.          Officer Takushi acknowledged

that his report did not mention that Eduwensuyi was swaying

while standing.

            Following Officer Takushi’s testimony, the State

rested.   The defense then informed the district court that it

would not be presenting evidence, and the following exchange

occurred:

                  THE COURT: . . . sir, you do have a right to testify
            if you choose to do so, as I said at the beginning of the
            trial. And if you testify, though, the prosecutor can
            cross-examine you and ask you questions. If you decide not
            to testify, the court -- I can’t hold it against you, nor
            would I, that you are not going to testify. Okay, doesn’t
            mean anything one way or the other to the court. Do you
            understand these rights?

                  THE DEFENDANT: Yes, Your Honor.

                  THE COURT: All right. And have you consulted with
            your attorney about whether or not you wish to testify?

                  THE DEFENDANT: I like to take a second to do so right
            now, sir.

                  THE COURT: Pardon me?

                  THE DEFENDANT: I’d like to take a second right now,
            Your Honor -- . . . -- to do so again.

                  THE COURT: -- very well.

                  THE DEFENDANT: Yes, Your Honor.

                  THE COURT: You have consulted with your attorney?

                  THE DEFENDANT: Yes.

                  THE COURT: And do you wish to testify?

                  THE DEFENDANT: No, I’m not --

                  THE COURT: Okay.

                  THE DEFENDANT: -- Your Honor.



                                        4
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

                 THE COURT: Okay, the court finds that the defendant
           has been advised of his rights, has knowingly,
           intelligently, and voluntarily waived the right to testify
           or not to testify. . . . .

Eduwensuyi then moved for judgment of acquittal, which motion

the court denied.

           The district court found Eduwensuyi guilty of

operating a vehicle under the influence of an intoxicant in

violation of HRS § 291E-61(a)(1) and imposed sentence.3

Eduwensuyi appealed to the Intermediate Court of Appeals (ICA)

from the district court’s judgment entered on July 11, 2016.

                       II.      ICA PROCEEDINGS

           In his opening brief, Eduwensuyi argued that under

Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293, 1303

(1995), the district court was required to engage him in a

colloquy prior to accepting his waiver of the right to testify

to ensure he was knowingly, voluntarily, and intelligently

relinquishing his rights.       Eduwensuyi contended that the court’s

Tachibana colloquy was incomplete and defective because the

court did not advise him that he had a right not to testify and

that if he wanted to testify no one could prevent him from doing



     3
            The district court sentenced Eduwensuyi to the following: pay a
fine and fees totaling $562; submit to a substance abuse assessment and
obtain recommended treatment; and participate in a 14-hour substance abuse
rehabilitation program. The district court further ordered that Eduwensuyi’s
license be revoked for a period of one year.




                                      5
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


so.   Because the colloquy was defective, Eduwensuyi maintained,

any waiver by him was not knowing, intelligent, and voluntary.

            In addition, Eduwensuyi contended that the court

failed to engage in a true exchange during the colloquy.

Eduwensuyi argued that, instead of administering the colloquy in

segments and asking Eduwensuyi whether he understood each

advisement, the district court simply recited a litany of

rights.    (Citing State v. Christian, 88 Hawaii 407, 967 P.2d 239

(1998).)    Eduwensuyi added that there was nothing in the record

to establish that he understood each of his rights or that the

court had an objective basis for finding that his waiver of the

right to testify was validly made.

            Eduwensuyi further submitted that the district court’s

violation of the requirements of Tachibana was not harmless

beyond a reasonable doubt because the record offered no hint as

to whether his testimony, had he given it, could have

established reasonable doubt that he operated a vehicle under

the influence of an intoxicant.         Eduwensuyi concluded that,

because it is inherently uncertain what he would have testified

to at trial, there is a reasonable possibility that the

violation of his constitutional right to testify contributed to

his conviction.




                                       6
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          In its answering brief, the State first addressed

Eduwensuyi’s contention that the district court failed to engage

in a true exchange during the Tachibana colloquy.           The State

noted that the court asked Eduwensuyi at the end of both the

pretrial advisement and the ultimate colloquy whether he

understood his rights and, in both instances, Eduwensuyi

responded in the affirmative.       The State added that Eduwensuyi

was also permitted to consult with defense counsel regarding the

waiver.   Hence, the State argued that the court’s exchange with

Eduwensuyi was sufficient to enable the court to ascertain

Eduwensuyi’s understanding of the court’s advisements.

          Turning to the contents of the pretrial advisement and

the ultimate colloquy, the State acknowledged that the district

court’s pretrial advisement was deficient in that the court did

not advise Eduwensuyi that his decision not to testify could not

be used against him by the factfinder.         The State submitted

that, because the pretrial advisement is reviewed for actual

prejudice, the district court could have rectified the error by

ensuring that Eduwensuyi was fully informed of his rights in the

ultimate colloquy.    The State conceded, however, that “the

ultimate colloquy was also deficient in some respects” because

the district court failed to inform Eduwensuyi of two of the

five basic requirements of Tachibana--namely, that if he wanted



                                     7
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


to testify, no one could prevent him from doing so and that he

had the right not to testify.

            The State further acknowledged that the district

court’s violation of Tachibana “may not be harmless beyond a

reasonable doubt given the circumstances in this case” and that

“it is not uncommon for convictions to be vacated as a result of

deficient Tachibana colloquies.”          The State indicated that the

situation was unfortunate given that the evidence showed that

Eduwensuyi operated a vehicle under the influence of an

intoxicant and that the district court failed “to follow the

simple mandates” of this court’s precedent.           The State concluded

that it “believes the right to testify colloquy was deficient

and thus a new trial is warranted.”

            On June 9, 2017, the ICA entered a summary disposition

order (SDO).4    In its SDO, the ICA did not reference that the

State had acknowledged in its answering brief that both the

district court’s pretrial advisement and the ultimate colloquy

were deficient because the district court failed to advise

Eduwensuyi of basic information required by Tachibana.             The ICA

also did not mention in its SDO that the State had conceded

error in the conviction in this case.


      4
            The ICA’s SDO can be found at State v. Eduwensuyi, 140 Hawaii 7,
395 P.3d 1241 (App. June 9, 2017).




                                      8
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


           The ICA determined that, although the district court

did not advise Eduwensuyi in the ultimate colloquy that no one

could prevent him from testifying if he wanted to do so, the

court adequately covered this advisement in the pretrial

colloquy by advising him that he had a right to testify or not

to testify and that it was ultimately his decision whether to

testify.   The ICA further found that given the short time

between the pretrial advisement and the ultimate colloquy,5

Eduwensuyi’s acknowledgment that he understood his rights, and

Eduwensuyi’s opportunity to further consult with his counsel

prior to waiving the right to testify, the district court

satisfied the requirements of Tachibana.           The ICA thus concluded

that Eduwensuyi validly waived the right to testify and

accordingly affirmed the district court’s judgment.

                   III.       STANDARD OF REVIEW

           The validity of a criminal defendant’s waiver of the

right to testify is a question of constitutional law reviewed by

this court under the right/wrong standard.           State v. Gomez-

Lobato, 130 Hawaii 465, 468-69, 312 P.3d 897, 900-01 (2013).




     5
           The bench trial lasted fifty minutes.




                                     9
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


                         IV.       DISCUSSION

          Hawaii law has historically protected both a

defendant’s right to testify and right not to testify.            State v.

Monteil, 134 Hawaii 361, 369, 341 P.3d 567, 575 (2014).            The

right to testify is guaranteed by the Fifth and Sixth Amendments

to the United States Constitution; parallel provisions contained

in article I, sections 5, 10, and 14 of the Hawaii Constitution;

and HRS § 801-2.     State v. Pomroy, 132 Hawaii 85, 91, 319 P.3d

1093, 1099 (2014).     The right not to testify is protected by the

United States Constitution’s Fifth Amendment guarantee against

compelled testimony and the Hawaii Constitution’s counterpart

provision under article I, section 10.          Monteil, 134 Hawaii at

369, 341 P.3d at 575.

          A key purpose of the Tachibana colloquy is to protect

a defendant’s right to testify.       Tachibana v. State, 79 Hawaii

226, 236, 900 P.2d 1293, 1303 (1995).        In Tachibana, this court

declared as follows:

          Thus, we hold that in order to protect the right to testify
          under the Hawaiʻi 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.

Id. (footnotes omitted).       Hence, trial courts are charged with

the “serious and weighty responsibility” of ensuring that the

waiver of the right to testify is a knowing and intelligent


                                    10
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


decision.    Monteil, 134 Hawaii at 371, 341 P.3d at 577 (quoting

Tachibana, 79 Hawaii at 233, 900 P.2d at 1300).

            A defendant’s constitutional right to testify is

violated when the Tachibana colloquy is inadequate to provide an

“objective basis” for finding the defendant “knowingly,

intelligently, and voluntarily” relinquished his or her right to

testify.    State v. Han, 130 Hawaii 83, 91, 306 P.3d 128, 136

(2013).    In determining whether a waiver of the right to testify

was voluntarily and intelligently made, this court looks to the

totality of the facts and circumstances of each particular case.

Id. at 89, 306 P.3d at 134.

            A.    The Tachibana Colloquy Was Inadequate

            In its answering brief to the ICA, the State conceded

that “the ultimate colloquy was . . . deficient in some

respects” because, inter alia, “the district court failed to

inform [Eduwensuyi] . . . that if he wants to testify that no

one can prevent him from doing so.”        The State concluded that it

“believes the right to testify colloquy was deficient and thus a

new trial is warranted.”      Upon a review of the record and

applicable law, the State’s concession of error was properly

made.   See Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr.

1945) (holding that, while a prosecutor’s confession of error is

“entitled to great weight,” before a conviction is reversed, “it


                                    11
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


is incumbent upon the appellate court to ascertain first that

the confession of error is supported by the record and well-

founded in law and to determine that such error is properly

preserved and prejudicial”).

   1. The district court did not advise Eduwensuyi that no one
                could prevent him from testifying.

           Under Tachibana, a defendant must be advised, inter

alia, “that if he [or she] wants to testify that no one can

prevent him [or her] from doing so.”        79 Hawaiʻi at 236 n.7, 900

P.2d at 1303 n.7 (alterations in original) (quoting State v.

Silva, 78 Hawaii 115, 122–23, 890 P.2d 702, 709–10 (App. 1995)).

This advisement is critical.      See, e.g., Pomroy, 132 Hawaiʻi at

92, 319 P.3d at 1100.     The Tachibana colloquy was adopted by

this court as the procedure that would “best protect defendants’

rights while maintaining the integrity of the criminal justice

system.”   Tachibana, 79 Hawaiʻi at 234, 900 P.2d at 1301.           This

court recognized that “[m]any defendants are unaware that they

have a constitutional right to testify which no one, not even

their lawyer, may take away from them.”         Id. (quoting Boyd v.

United States, 586 A.2d 670, 677 (D.C. 1991)).

           In Pomroy, we held that the Tachibana colloquy was

“defective” in part because the court “did not fully advise [the

defendant] of his rights.”      132 Hawaiʻi at 92, 319 P.3d at 1100.

As this court explained,

                                    12
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

           Although the district court advised [the defendant] that he
           had the right to testify on his behalf and that if he chose
           to testify, he would be subject to cross-examination by the
           State, the district court did not advise [the defendant]
           that he had the right not to testify and that no one can
           prevent him from testifying.

Id. (emphases added).      Here, as in Pomroy, the district court

failed to advise Eduwensuyi that no one could prevent him from

testifying.6    This error was compounded by the court’s failure to

inform Eduwensuyi during the ultimate colloquy that the decision

regarding testifying was his to make.         Given that the advisement

that no one can prevent the defendant from testifying is

critical and the only Tachibana advisement that emphasizes that

the waiver of the right to testify must be voluntary, the

court’s Tachibana colloquy was deficient.7




     6
            The State also properly conceded that the district court did not
advise Eduwensuyi during the ultimate colloquy that he had a right not to
testify. See Kogami, 37 Haw. at 175. In Pomroy, this court held that “the
district court did not advise [the defendant] that he had the right not to
testify;” the district court merely stated, “If you choose not to testify, I
cannot hold that against you.” 132 Hawaii at 92, 319 P.3d at 1100.
Likewise, the district court here advised Eduwensuyi, “If you decide not to
testify, the court -- I can’t hold it against you.” Such an advisement is
similarly flawed, since telling a defendant “[i]f you decide not to testify”
is not equivalent to informing the defendant of the constitutional right not
to testify.
     7
            The ICA appears to have similarly determined that the ultimate
colloquy was deficient because it acknowledged that the district court
neglected to advise Eduwensuyi that no one can prevent him from testifying.
The ICA instead relied on, inter alia, the pretrial advisement to conclude
that Eduwensuyi validly waived the right to testify.




                                     13
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


  2. The pretrial advisement did not cure the deficiency of the
                        ultimate colloquy.

             The ICA relied on the pretrial advisement to support

its conclusion that the ultimate colloquy was adequate.               In its

answering brief, the State conceded that the pretrial advisement

was deficient because the district court did not advise

Eduwensuyi that if he decided not to testify, the court as the

factfinder would not use that decision against him.              The State’s

concession on this point was correct.           See Kogami, 37 Haw. at

175.

             In State v. Lewis, this court mandated that trial

courts administer a pretrial advisement to defendants:

             the trial courts “prior to the start of trial, [shall] (1)
             inform the defendant of his or her personal right to
             testify or not to testify and (2) alert the defendant that,
             if he or she has not testified by the end of the trial, the
             court will briefly question him or her to ensure that the
             decision not to testify is the defendant’s own decision.”

94 Hawaii 292, 297, 12 P.3d 1233, 1238 (2000) (alteration in

original) (quoting Tachibana, 79 Hawaiʻi at 237 n.9, 900 P.2d at

1304 n.9).      To more fully protect the right not to testify, the

court in Monteil added a third requirement to the pretrial

advisement.      134 Hawaii at 373, 341 P.3d at 579.         There, we held

that trial courts must also advise defendants during the

pretrial advisement that their exercise of the right not to

testify may not be used by the factfinder to decide the case.

Id.    The district court in this case was thus required to inform

                                       14
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Eduwensuyi during the pretrial advisement that if he decided not

to testify, that decision would not be used against him.            Id.

The court failed to advise Eduwensuyi accordingly, and therefore

the pretrial advisement was deficient.

           The district court also did not inform Eduwensuyi

during the pretrial advisement that no one could prevent him

from testifying.    Thus, the pretrial advisement could not cure

the deficiency of the ultimate colloquy, which likewise omitted

this information.    The ICA nevertheless determined that, while

the district court neglected to advise Eduwensuyi during the

ultimate colloquy that no one could prevent him from testifying,

the court did inform Eduwensuyi during the pretrial advisement

that the decision whether to testify was ultimately his.

However, an advisement that the decision whether to testify or

not to testify is ultimately the defendant’s is not equivalent

under our precedent to an advisement that no one can prevent the

defendant from testifying.

           In Pomroy, the district court advised the defendant

during the ultimate colloquy, inter alia, that the decision to

testify “is yours and yours alone.”        132 Hawaii at 92, 319 P.3d

at 1100.   This court determined that the ultimate colloquy was

defective in part because the district court did not advise

Pomroy that no one could prevent him from testifying.            Id.


                                    15
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Similarly, the district court here informed Eduwensuyi during

the pretrial advisement that his counsel may advise him about

whether or not to testify but that the decision regarding

testifying was ultimately his.       The court failed, however, to

inform Eduwensuyi during the ultimate colloquy that no one could

prevent him from testifying.      Thus, the “district court

incompletely followed Tachibana’s directive.”          Pomroy, 132

Hawaii at 92, 319 P.3d at 1100.

   3. The ICA’s reasons for concluding that the district court
       satisfied the requirements of Tachibana are flawed.

          In concluding that the district court satisfied the

requirements of Tachibana, the ICA relied upon the fact that

only a short time elapsed between the district court’s pretrial

advisement and the ultimate colloquy.        However, as discussed

supra, the pretrial advisement did not include the advisory that

was absent from the ultimate colloquy--that no one could prevent

Eduwensuyi from testifying if he wanted to do so.

          Additionally, a general assumption that a trial of

short duration means that the defendant will remember and

carefully consider what was previously stated in a pretrial

advisement is not a fact that can be judicially noticed.

Indeed, the opposite may be true.        A trial, especially the

commencement of the trial, is an event where a defendant may be




                                    16
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


anxious or nervous and not listening effectively.8            In addition,

it is questionable that a defendant would extrapolate from what

the judge actually said--it’s your decision to testify or not to

testify--to mean something in addition--that no one can prevent

you from testifying.      Further, the ICA’s assumption based on the

brevity of the trial builds upon a premise that the defendant is

able to correctly recall a pretrial advisory at the end of

trial.   This assumption treats all defendants alike in terms of

their ability to understand and recall the initial advisory

despite differences, for example, in education, proficiency in

understanding, and courtroom experience.          It also does not

account for what comes in between the pretrial advisement and

the conclusion of trial: the evidence adduced at trial that may

affect the defendant’s ability at the time of the ultimate

colloquy to recall or focus upon a prior advisory.            Finally, the

pretrial advisement notifies the defendant of the right to

testify or not to testify but states that if the defendant has

     8
            “A criminal proceeding is, at best, an anxious event for a
defendant and his family.” Sara K. Sorenson, Treating Defendants as
Individuals, 78 N.D. L. Rev. 259, 260 (2002). Courts have recognized in
other contexts that events associated with a criminal accusation can cause a
defendant to suffer from anxiety. See, e.g., United States v. Henson, 945
F.2d 430, 438 (1st Cir. 1991) (“[C]onsiderable anxiety normally attends the
initiation and pendency of criminal charges[.]”); State v. Wasson, 76 Hawaii
415, 422, 879 P.2d 520, 527 (1994) (citing Barker v. Wingo, 407 U.S. 514, 533
(1972)) (recognizing that the defendant, like most criminal defendants,
suffered from anxious moments awaiting trial); Commonwealth v. Leate, 367
Mass. 689, 694 (1975) (indicating that there is an assortment of pressures
inherent in the situation where a defendant pleads guilty).




                                     17
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


not testified by the end of trial, the court will question the

defendant later regarding the decision not to testify.             It is

significant that the defendant is told that the pretrial

advisement is preliminary in nature and that the subject matter

will be addressed fully at a later point if the defendant

chooses not to testify.9

            Thus, to assume, as the ICA did, that a pretrial

advisement can serve as a substitute for deficiencies in the

ultimate colloquy based on the length of the trial is inherently

problematic.    Instead, a knowing, intelligent, and voluntary

waiver must be borne out by evaluating the facts and

circumstances that are evidenced as to the particular defendant,

Han, 130 Hawaii at 89, 306 P.3d at 134, and not based upon

general assumptions of what a defendant would recall from a

pretrial advisement--as deduced from the length of a trial.10




      9
             Further, the purpose of the pretrial advisement is not to make up
for the inadequacies of the ultimate colloquy. Rather, the pretrial
advisement was implemented because it would have “the beneficial effect of
limiting any post-conviction claim that a defendant testified in ignorance of
his or her right not to testify,” State v. Lewis, 94 Hawaii 292, 297, 12 P.3d
1233, 1238 (2000), and would lessen the risk that the ultimate colloquy would
inadvertently affect the defendant’s right not to testify, Tachibana, 79
Hawaii at 237 n.9, 900 P.2d at 1304 n.9.
      10
            Our analysis is not meant to indicate that a pretrial colloquy
cannot be considered as part of the totality of facts and circumstances in an
evaluation of whether a particular defendant’s waiver was knowing and
voluntary.




                                      18
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            The ICA also relied on “Eduwensuyi’s acknowledgment of

his understanding of his rights” at the conclusion of the

colloquy.    However, as discussed, the ultimate colloquy was

deficient in that the court did not advise Eduwensuyi that no

one could prevent him from testifying.         A defendant’s

acknowledgment of an understanding of an incomplete colloquy

cannot serve as a basis for a valid waiver of the right to

testify.    Rather, a knowing, intelligent, and voluntary waiver

is demonstrated by a showing that the defendant was fully and

accurately informed in accordance with the requirements of

Tachibana and that the defendant acknowledged an understanding

of the advisements given.      See Monteil, 134 Hawaii at 371, 341

P.3d at 577 (“[A] decision by a defendant not to testify should

be based upon a defendant’s awareness of the ‘relevant

circumstances and likely consequences’ of such a decision.”

(quoting Brady v. United States, 397 U.S. 742, 748 (1970))).

            Finally, as support for its conclusion that there was

a valid waiver in this case, the ICA reasoned that Eduwensuyi

was afforded the opportunity to--and he actually did--consult

with defense counsel during the ultimate colloquy.           However,

neither the basis of Eduwensuyi’s request to consult with

counsel during the ultimate colloquy nor the nature of their

conversation is known.     After Eduwensuyi consulted with his


                                    19
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


counsel, the district court did not ask Eduwensuyi whether he

had any questions regarding his rights to testify and not to

testify, nor did the court ask whether speaking with counsel

answered any questions that he might have had regarding those

rights.   Instead, the court simply asked Eduwensuyi whether he

wished to testify.    And based on the negative response from

Eduwensuyi, the court found a knowing and intelligent waiver of

that right.    Thus, there is nothing in the record that indicates

that Eduwensuyi’s discussion with counsel enhanced his

understanding of his constitutional rights, much less rectified

the error in the court’s colloquy.

          In addition, it is settled law that the duty to ensure

that a defendant’s waiver of the right to testify is validly

made is one that is imparted to a court.         “A court has a

‘serious and weighty responsibility to determine whether’ a

waiver of the right to testify is a knowing and intelligent

decision.”    Monteil, 134 Hawaii at 371, 341 P.3d at 577 (quoting

Tachibana, 79 Hawaii at 233, 900 P.2d at 1300).          Thus, 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, and the ICA erred in doing so.        Cf. State v. Gomez-

Lobato, 130 Hawaii 465, 477-78, 312 P.3d 897, 909-10 (2013)

(finding waiver of jury trial deficient in part because court


                                    20
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


should have inquired as to defendant’s understanding of jury

trial waiver form that was interpreted to him out of court).

          Based on the foregoing, the ICA’s reasons for

concluding that the district court satisfied the requirements of

Tachibana are flawed and cannot support a finding that

Eduwensuyi validly waived the right to testify.

B. The Court’s Error Was Not Harmless Beyond A Reasonable Doubt

          The State acknowledged in its answering brief that the

district court’s violation of Tachibana in this case “may not be

harmless beyond a reasonable doubt given the circumstances,”

concluding that it “believes the right to testify colloquy was

deficient and thus a new trial is warranted.”          We find that the

State’s concession on this point was proper.          See Kogami, 37

Haw. at 175.    “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 Hawaiʻi at 240, 900 P.2d at

1307 (citations omitted).      “The relevant question under the

harmless beyond a reasonable doubt standard is whether there is

a reasonable possibility that error might have contributed to

[the] conviction.”    Han, 130 Hawaii at 93, 306 P.3d at 138

(quoting State v. Schnabel, 127 Hawaii 432, 450, 279 P.3d 1237,

1255 (2012)).


                                    21
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            Had Eduwensuyi testified, he may have been able to

contest the State’s case and shed light on whether he operated a

vehicle under the influence of an intoxicant in violation of HRS

§ 291E-61(a)(1).     On this record, it is not knowable whether

Eduwensuyi’s testimony would have had any effect on the outcome

of his case.    Pomroy, 132 Hawaii at 94, 319 P.3d at 1102.

Hence, it is “impossible to conclude” that violating

Eduwensuyi’s right to testify was harmless beyond a reasonable

doubt.    Tachibana, 79 Hawaii at 240, 900 P.2d at 1307; State v.

Silva, 78 Hawaii 115, 126, 890 P.2d 702, 713 (App. 1995);

Pomroy, 132 Hawaii at 94, 319 P.3d at 1102.11          Therefore,

Eduwensuyi’s conviction must be vacated.

     C. The ICA Failed To Give Any Deference To The State’s
                        Concessions Of Error

            As noted supra, the State conceded in its answering

brief that the pretrial advisement was deficient because the

district court did not advise Eduwensuyi that his decision not

to testify could not be used by the factfinder against him.                 The

State also conceded that the ultimate colloquy was deficient

because “the district court failed to inform [Eduwensuyi] of 2

of the 5 basic requirements of Tachibana, namely that if he

     11
            Eduwensuyi also argues that the court did not engage in a true
colloquy. In light of the disposition in this case, we do not address this
contention.




                                     22
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


wants to testify that no one can prevent him from doing so and

that he has the right not to testify.”          The State further

acknowledged that the district court’s violation of Tachibana

“may not be harmless beyond a reasonable doubt given the

circumstances in this case” and concluded that it “believes the

right to testify colloquy was deficient and thus a new trial is

warranted.”

            A prosecutor’s confession, although not binding on an

appellate court, is “entitled to great weight.”           Territory v.

Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945); see also State v.

Wasson, 76 Hawaii 415, 418, 879 P.2d 520, 523 (1994)

(considering the State’s concession and concluding that the

State properly conceded error); State v. Solomon, 107 Hawaii

117, 127-28, 111 P.3d 12, 22-23 (2005) (recognizing the

prosecutor’s confession of error and vacating the defendant’s

conviction and remanding the case for a new change of plea

hearing).    Thus, the ICA was required to consider the State’s

concessions of error set forth in its answering brief.             However,

nothing in the ICA’s decision indicates that the ICA gave due

consideration to the State’s concessions in its evaluation of

the issues presented in this case.12        See Kogami, 37 Haw. at 175;


     12
            As stated, in Kogami, this court indicated that a prosecutor’s
confession of error is “entitled to great weight.” 37 Haw. at 175. We note

                                                             (continued . . .)

                                     23
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Wasson, 76 Hawaii at 418, 879 P.2d at 523; Solomon, 107 Hawaii

at 127, 111 P.3d at 22.

            As discussed, the State’s concessions are supported

both by the record in this case and applicable legal principles.

Under our well-settled law, while the ICA was not bound by the

State’s concessions, the ICA was required to give due

consideration to them.      Nonetheless, in light of the disposition

reached in this case, we do not consider the effect of the ICA’s

failure to give the requisite consideration to the State’s

concessions.

                           V.      CONCLUSION

            The Tachibana colloquy was inadequate in that the

district court did not advise Eduwensuyi during the ultimate

colloquy that no one could prevent him from testifying.             This

error was not harmless beyond a reasonable doubt.            Therefore,

the ICA’s Judgment on Appeal and the district court’s judgment


(. . . continued)

that the level of deference that would be accorded to a concession would
depend on the issue presented. For example, in Kogami, we found that a
concession relating to the insufficiency of the evidence as to the charged
violation of a statute was well-founded. Id. However, if the confession of
error relates to an interpretation of a law, no deference need be given. See
Orloff v. Willoughby, 345 U.S. 83, 87 (1953) (“This Court, of course, is not
bound to accept the Government’s concession that the courts below erred on a
question of law.”). Given the manifest deficiency of the Tachibana colloquy
in this case and because the ICA entirely failed to acknowledge the State’s
concessions on appeal, we need not address the level of deference that the
ICA should have accorded to the State’s confessions of error relating to the
district court’s noncompliance with the Tachibana requirements.




                                     24
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


are vacated, and the case is remanded to the district court for

further proceedings.

James S. Tabe                            /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Loren J. Thomas
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




                                    25
