NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000679

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

PAUL H. STERN, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

NORTH AND SOUTH KONA DIVISION

(CASE NO. 3DTC-19-053119)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Defendant-Appellant Paul H. Stern (Stern) appeals from

the Judgment and Notice of Entry of Judgment (Judgment), entered

by the District Court of the Third Circuit (District Court)

1 on

September 5, 2019. After a bench trial, the District Court

convicted Stern of Driving Without a License (DWOL), in violation

of Hawaii Revised Statutes (HRS) § 286-102(b) (Supp. 2018).2 

1 The Honorable Margaret K. Masunaga presided.

2 HRS § 286-102 provides, in relevant part:

(b) A person operating the following category or

combination of categories of motor vehicles shall be

examined as provided in section 286-108 and duly licensed

by the examiner of drivers:

(1) Mopeds;

(2) Motorcycles, except for autocycles as

described in paragraph (2) of the definition

of "motorcycle" in section 286-2, and motor

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000679

28-DEC-2020

07:45 AM

Dkt. 50 SO
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On appeal, Stern argues (1) the District Court failed

to obtain a valid waiver of his constitutional right to testify

as required by Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293

(1995), and (2) there was insufficient evidence to convict him.

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 vacate Stern's

conviction and remand for a new trial. 

(1) Stern argues that the District Court did not

obtain a valid waiver of his right to testify as required by

Tachibana because, inter alia, it did not conduct an ultimate

colloquy after the state presented its case and before Stern

waived his right to testify. We agree.

"The validity of a defendant's waiver of constitutional

rights in a criminal case is a question of law under the state

and federal constitutions, which we review under the right/wrong

standard." State v. Martin, 146 Hawai#i 365, 377, 463 P.3d 1022,

1034 (2020), as corrected (Apr. 23, 2020) reconsideration denied,

No. SCWC-14-0001090, 2020 WL 2538923 (May 19, 2020) (citation

omitted). Moreover,

A defendant's right to testify is violated when the colloquy

does not establish an objective basis for finding that the

defendant knowingly, intelligently, and voluntarily gave up

their right to testify. Courts look to the totality of the

facts and circumstances to determine whether a waiver of the

right to testify was voluntarily and intelligently made.

Id. at 379, 463 P.3d at 1036 (citations, quotation marks and

brackets omitted).

2(...continued)

scooters;

(3) Passenger cars of any gross vehicle weight

rating, buses designed to transport fifteen

or fewer occupants, trucks and vans having a

gross vehicle weight rating of eighteen

thousand pounds or less, and autocycles as

described in paragraph (2) of the definition

of "motorcycle" in section 286-2; and

(4) All of the motor vehicles in category (3) and

any vehicle that is not a commercial motor

vehicle.

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Here, after the State presented its witnesses, the

District Court accepted Stern's waiver of his right to testify

without a proper colloquy with Stern as to all of the principles

regarding his right to testify and right not to testify as

required by Tachibana. See Martin, 146 Hawai#i at 378, 463 P.3d

at 1035; Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. 

Specifically, after the State presented its case, the following

exchange occurred: 

THE COURT: . . . So, Mr. Stern, as I mentioned at

the beginning of the trial that, . . . I had to do the

. . . advisement of rights which we call the . . .

"Tachibana colloquy."

THE DEFENDANT: Mmm-hmm.

THE COURT: And so I'm going to have to ask you the

same questions.

So earlier I had said it's your personal right to

testify or not testify, remain silent, and if you have

not testified at the end of the trial after the State

rests and all evidence other than . . . your testimony is

received I have to question you . . . again . . .

relating to whether you want to . . . testify or not

testify.

So, Mr. Stern, have you decided whether you want to

testify or not testify?

THE DEFENDANT: No.

THE COURT: Or do you wanna take a recess and talk

to your attorney Mr. Sylva regarding . . . your decision

or before you make a decision?

(The defendant and his counsel held a discussion

off the record.)

[DEFENSE COUNSEL]: And, Your Honor, I believe, 

. . . Mr. Stern is ready to proceed with, uh, answering

the Court's question. Stand up for the judge.

THE DEFENDANT: Okay, . . . 

THE COURT: Okay.

THE DEFENDANT: I am not gonna testify.

THE COURT: Pardon?

THE DEFENDANT: I will not testify.

THE COURT: You will not be testifying?

THE DEFENDANT: Yes, ma'am. Or, yes, Your Honor.

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THE COURT: Okay. So the Court finds defendant

knowingly, voluntarily, intelligently waived his right to

testify and will not testify and will remain silent, and

the Court will not hold his silence against him.

The State contends the District Court's pretrial

colloquy satisfied Tachibana. However, in the pretrial colloquy,

the District Court stated at the end that "later on I'm gonna ask

you these same questions[,]" but the ultimate colloquy did not

ask the same, pertinent questions or involve a true colloquy. 

Given the circumstances of this case, we cannot say that the

pretrial colloquy established that Stern thereafter knowingly,

intelligently, and voluntarily waived his right to testify. See

State v. Eduwensuyi, 141 Hawai#i 328, 335, 409 P.3d 732, 739

(2018) (holding that the pretrial advisement in that case did not

serve as a substitute for deficiencies in the ultimate colloquy);

State v. Preza Haynes, No. CAAP-18-0000719, 2019 WL 4751539, at

*2-4, 145 Hawai#i 145, 449 P.3d 746 (App. Sept. 30, 2019) (SDO). 

Also, although the State argues that Stern conferred with his

counsel, "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[.]" Eduwensuyi, 141 Hawai#i at 336, 409

P.3d at 740.

Accordingly, we conclude the District Court did not

obtain a valid waiver from Stern of his right to testify.3 We

further conclude that the District Court's error was not harmless

beyond a reasonable doubt. See Tachibana, 79 Hawai#i at 240, 900

P.2d at 1307 ("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"); 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 a violation of the 

3 In light of our conclusion, we need not address Stern's other claims

that the District Court violated Tachibana.

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defendant's constitutional right to testify had on the outcome of

any particular case"). We therefore vacate Stern's DWOL

conviction.

(2) Stern argues there was insufficient evidence to

support his conviction because the State did not prove that the

vehicle he was operating on the date of the incident was a moped,

as defined in HRS § 286-2 (2007).4 At trial, the citing officer

testified several times that Stern was operating a "moped." 

Stern did not object to, or move to preclude, the officer's

testimony as to the type of vehicle that Stern operated. The

District Court was thus entitled to consider the officer's

testimony that the vehicle Stern operated was a moped. See State

v. Samuel, 74 Haw. 141, 147, 838 P.2d 1374, 1378 (1992) ("The

general rule is that evidence to which no objection has been made

may properly be considered by the trier of fact and its admission

will not constitute grounds for reversal.") (citation omitted). 

On this record, and viewing the evidence in the strongest light

for the prosecution, see State v. Kalaola, 124 Hawai#i 43, 49,

237 P.3d 1109, 1115 (2010), there was substantial evidence that

Stern was operating a moped. We therefore reject Stern's

contention that there was insufficient evidence to support his

conviction.

4 HRS § 286-2 provides: 

"Moped" means a device upon which a person may ride which

has two or three wheels in contact with the ground, a

motor having a maximum power output capability measured

at the motor output shaft, in accordance with the Society

of Automotive Engineers standards, of two horsepower (one

thousand four hundred ninety-two watts) or less and, if

it is a combustion engine, a maximum piston or rotor

displacement of 3.05 cubic inches (fifty cubic

centimeters) and which will propel the moped, unassisted,

on a level surface at a maximum speed no greater than

thirty miles per hour; and a direct or automatic power

drive system which requires no clutch or gear shift

operation by the moped driver after the drive system is

engaged with the power unit.

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Therefore, IT IS HEREBY ORDERED that the Judgment

entered by the District Court on September 5, 2019, is vacated,

and the case is remanded to the District Court for a new trial. 

DATED: Honolulu, Hawai#i, December 28, 2020. 

On the briefs:

Phyllis J. Hironaka, 

Deputy Public Defender, 

for Defendant-Appellant. 

Stephen L. Frye, 

Deputy Prosecuting Attorney, 

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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