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NO. CAAP-20-0000018

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

JAISAN S. WILLIAMS, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

WAHIAWA DIVISION

(CASE NO. 1DTC-19-027684)

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)

Defendant-Appellant Jaisan S. Williams (Williams)

appeals from the Notice of Entry of Judgment and/or Order and

Plea/Judgment, entered on December 17, 2019, in the District

Court of the First Circuit, Wahiawa Division (District Court).1/

Following a bench trial, Williams was convicted of Excessive

Speeding, in violation of Hawaii Revised Statutes (HRS) § 291C105(a)(1) and/or (a)(2) (Supp. 2008).2/

On appeal, Williams contends that: (1) the District

Court failed to conduct an adequate Tachibana3/ colloquy; and (2)

there was no substantial evidence to support Williams's

1/ The Honorable Maura M. Okamoto presided over the trial and

convicted Williams. The Honorable Summer Kupau-Odo presided over sentencing

and issued the Judgment. 

2/ HRS § 291C-105(a) provides: "(a) No person shall drive a motor

vehicle at a speed exceeding: (1) The applicable state or county speed limit

by thirty miles per hour or more; or (2) Eighty miles per hour or more

irrespective of the applicable state or county speed limit."

3/ Tachibana v. State, 79 Hawai#i 226, 236 n.7, 900 P.2d 1293, 1303

n.7 (1995).

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000018

16-JUL-2021

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conviction, where the State failed to lay the requisite

foundation for admission of a laser device speed reading. 

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Williams's points of error as follows:

(1) Williams argues that the District Court's

Tachibana colloquy was deficient and, as a result, it cannot be

concluded that Williams's waiver of his right to testify was

knowing, intelligent, and voluntary. 

The State concedes that the District Court erred in

failing to conduct an adequate Tachibana colloquy, and does not

contend the error was harmless. Nevertheless, "this court must

still determine whether the error was properly preserved, was

prejudicial to [Williams], and is supported by the record." 

State v. Hoang, 93 Hawai#i 333, 336, 3 P.3d 499, 502 (2000). We

must also "give due consideration" to the State's concession of

error, as "[a] prosecutor's confession, although not binding on

an appellate court, is 'entitled to great weight.'" State v.

Eduwensuyi, 141 Hawai#i 328, 337, 409 P.3d 732, 741 (2018)

(quoting Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr.

1945)). 

The validity of a defendant's waiver of the right to

testify in a criminal case is a question of constitutional law

reviewed by this court under the right/wrong standard.

State v. Celestine, 142 Hawai#i 165, 169, 415 P.3d 907, 911

(2018). In State v. Martin, 146 Hawai#i 365, 463 P.3d 1022

(2020), the Hawai#i Supreme Court summarized the relevant case

law as follows:

Our law protects both the right to testify and the

right not to testify. State v. Celestine, 142 Hawai#i 165,

169, 415 P.3d 907, 911 (2018). Tachibana v. State, 79

Hawai#i 226, 900 P.2d 1293 (1995), established the

requirement that when a defendant in a criminal case

indicates an intention not to testify, the trial court must

advise the defendant of the right to testify and must obtain

an on-the-record waiver of the right. 79 Hawai#i at 236,

900 P.2d at 1303. We stated that this advisement should

consist of informing the defendant (1) that they have a

right to testify, (2) that if they want to testify, no one

can prevent them from doing so, and (3) that if they

testify, the prosecution will be allowed to cross-examine

them. 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. We also

stated that in connection with the privilege against

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self-incrimination, the defendant should also be advised (4)

that they have a right not to testify and (5) that if they

do not testify, then the jury can be instructed about that

right. Id. (citations omitted). In a bench trial,

defendants must be advised that if they exercise their right

not to testify, no inference of guilt may be drawn for

exercising this right, i.e., that a decision not to testify

cannot be used against a defendant by the judge in deciding

the case. State v. Monteil, 134 Hawai#i 361, 371-72, 341

P.3d 567, 577-78 (2014).

After Tachibana, we also held that a second component

of the Tachibana colloquy involves the court engaging in a

true "colloquy" with the defendant. Celestine, 142 Hawai#i

at 170, 415 P.3d at 912, citing State v. Han, 130 Hawai#i

83, 90-91, 306 P.3d 128, 135-36 (2013). This requires "a

verbal exchange between the judge and the defendant 'in

which the judge ascertains the defendant's understanding of

the proceedings and of the defendant's rights.'" Celestine,

142 Hawai#i at 170, 415 P.3d at 912 (citing Han, 130 Hawai#i

at 90, 306 P.3d at 135 (emphasis omitted)).

Id. at 378, 463 P.3d at 1035 (footnote omitted). 

The supreme court has found Tachibana advisements

deficient where they "did not fully advise [the defendant] of his

rights . . . ." State v. Pomroy, 132 Hawai#i 85, 92, 319 P.3d

1093, 1100 (2014). In Pomroy, for example, the supreme court

ruled that the trial court's ultimate Tachibana colloquy

"incompletely followed Tachibana's directive" because it failed

to advise the defendant that he had the right not to testify and

that no one could prevent him from testifying. Id. at 92, 319

P.3d at 1100. Similarly, in Eduwensuyi, the supreme court found

that the trial court's ultimate Tachibana colloquy was deficient

because it failed to advise the defendant that no one could

prevent him from testifying. 141 Hawai#i at 333, 409 P.3d at

737.

Here, after the State rested, the District Court

engaged in the following colloquy with Williams:

THE COURT: . . . . So Mr. Williams, you may recall,

although it was a little while ago when we started this

trial, I talked to you at that time about your right to

testify at a trial and also your right not to testify. And

. . . I recall telling you that this is your decision to

make. So now I just want to say exactly the same things

again to tell you. And I know you're nodding your head, but

if you could answer.

So you understand you have a right to testify if you

want to testify?

THE DEFENDANT: Yes.

THE COURT: Okay. And you know that this is your

decision to make?

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THE DEFENDANT: Yes.

THE COURT: And even though you may have advice from

your attorney, it is your decision --

THE DEFENDANT: Yes.

THE COURT: -- and no one can force you, you understand

that?

THE DEFENDANT: Yes.

THE COURT: Okay. And you also understand that, again,

you have a right not to say anything, not to testify, and if

you do that, again it is your decision?

THE DEFENDANT: Yes, ma'am.

THE COURT: Okay? And so just to be absolutely clear,

tell me what is your decision at this time?

THE DEFENDANT: Not to testify, ma'am.

THE COURT: Okay. Thank you.

As the State acknowledges, the District Court did not

inform Williams during this colloquy that if he testified, the

State would be able to cross-examine him, and if he did not

testify, the court would not hold that decision against him. In

light of these deficiencies under prevailing case law, and given

the State's concession, we cannot conclude that the District

Court properly established Williams's understanding of his right

to testify. See Pomroy, 132 Hawai#i at 92, 319 P.3d at 1100;

Eduwensuyi,141 Hawai#i at 333, 337, 409 P.3d at 737, 741. 

Therefore, the record does not demonstrate that Williams's waiver

of his right to testify was knowingly, intelligently and

voluntarily made. 

"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 (citing State v. Silva, 78 Hawai#i 115, 125, 890 P.2d 702,

712 (App. 1995)). Here, the record does not contain any

indication of what Williams would have said if he had testified,

and the State does not argue that the defective colloquy was

harmless beyond a reasonable doubt. See State v. Hoang, 94

Hawai#i 271, 279, 12 P.3d 371, 379 (App. 2000) ("In general, it

is inherently difficult, if not impossible, to divine what effect

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a violation of the defendant's constitutional right to testify

had on the outcome of any particular case."). Based on our

review of the record, we cannot conclude that the District

Court's deficient colloquy was harmless beyond a reasonable

doubt. 

We therefore vacate Williams's conviction for Excessive

Speeding.

(2) Williams also argues that the District Court abused

its discretion in allowing Honolulu Police Department Officer

Zachary Plevel (Officer Plevel) to testify about Williams's speed

as indicated on a "TruSpeed" LIDAR speed measuring device (Laser

Device), "where the State failed to lay the requisite foundation"

for the testimony. Williams further argues that without the

testimony as to the speed reading, there was no substantial

evidence to support Williams's conviction.

The State argues in part that Williams waived the

evidentiary issue by failing to preserve it at trial. See State

v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003) ("[I]f a

party does not raise an argument at trial, that argument will be

deemed to have been waived on appeal[.]"). We agree. 

To lay a foundation for the introduction of a speed

measurement by a laser device, the State must demonstrate that: 

(1) the operator who used the device received training, the

nature and extent of which met the device manufacturer's

requirements (training prong), see State v. Amiral, 132 Hawai#i

170, 178, 319 P.3d 1178, 1186 (2014) (quoting State v. Assaye,

121 Hawai#i 204, 215, 216 P.3d 1227, 1238 (2009)); State v.

Gonzalez, 128 Hawai#i 314, 327, 288 P.3d 788, 801 (2012); and (2)

prior to making the reading at issue, the device's accuracy was

tested and determined to be operating properly according to the

manufacturer's recommended procedures (testing prong), see

Gonzalez, 128 Hawai#i 314, 325-26, 288 P.3d 788, 799-800. As to

the training prong, the State must show both (a) the

manufacturer's training requirements, and (b) the training

actually received by the operator of the device. See Amiral, 132

Hawai#i at 178, 319 P.3d at 1186 (citing Gonzalez, 128 Hawai#i at

327, 288 P.3d at 801).

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During the State's case-in-chief, Williams objected

generally "for lack of foundation" to Officer Plevel's testimony

as to the speed reading from the Laser Device. "[A] 'lack of

foundation' objection generally is insufficient to preserve

foundational issues for appeal because such an objection does not

advise the trial court of the problems with the foundation." 

State v. Long, 98 Hawai#i 348, 353, 48 P.3d 595, 600 (2002). 

However, "an exception is recognized when the objection is

overruled and, based on the context, it is evident what the

general objection was meant to convey." Id.

Here, the lack-of-foundation objection was overruled,

but the exception does not apply, because it is not evident based

on the context what the general objection was meant to convey. 

Indeed, Williams's later arguments at trial and on appeal reveal

that he could have been objecting on at least two different

grounds to the admission of the speed reading from the Laser

Device. At trial, during closing argument, Williams asserted

among other things that "Officer Plevel did not testify as to

whether his training met the manufacturer's requirements." 

However, Williams argued more specifically that "foundation for

the speed reading [was] lacking" because the State "[had not]

proven that the device was in proper working order," thus

asserting that the State had failed to meet the testing prong.4/ 

On appeal, Williams argues only that the speed reading lacked

4/ As Williams concluded his closing argument, he had the following

exchange with the District Court:

THE COURT: . . . .

And if you're . . . saying that they haven't met every

element, what are the elements that they haven't met?

[DEFENSE COUNSEL]: We would argue, Your Honor, that

they haven't proven that the device was in proper working

order, therefore foundation for the speed reading is

lacking.

THE COURT: Anything else?

[DEFENSE COUNSEL]: No.

THE COURT: . . . . 

Okay. Is there anything else?

[DEFENSE COUNSEL]: No, Your Honor. We'd rest on that

argument.

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foundation because the State failed to establish "that the nature

and extent of Officer Plevel's training in the operation of the

[Laser Device] met the requirements indicated by the

manufacturer," thus asserting that the State failed to meet the

training prong. Accordingly, we cannot conclude that it is

evident based on the context what Williams's lack-of-foundation

objection during Officer Plevel's testimony was meant to convey. 

We therefore conclude that Williams failed to sufficiently

preserve the evidentiary argument he is now making on appeal.

Upon review of the record, and viewing the evidence in

the strongest light for the prosecution, see State v. Bowman, 137

Hawai#i 398, 405, 375 P.3d 177, 184 (2016), we further conclude

there was substantial evidence supporting Williams's conviction

for Excessive Speeding.

Therefore, IT IS HEREBY ORDERED that the Notice of

Entry of Judgment and/or Order and Plea/Judgment, entered on

December 17, 2019, in the District Court of the First Circuit,

Wahiawa Division, is vacated. The case is remanded to the

District Court for further proceedings consistent with this

Summary Disposition Order.

DATED: Honolulu, Hawai#i, July 16, 2021.

On the briefs:

Jon N. Ikenaga,

Deputy Public Defender,

for Defendant-Appellant.

Donn Fudo,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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