NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000420

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

EON KYU JOO, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

HONOLULU DIVISION

(CASE NO. 1DTA-19-00125)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Eon Kyu Joo (Joo) appeals from the

Notice of Entry of Judgment and/or Order and Plea/Judgment, filed

on May 7, 2019, in the District Court of the First Circuit,

Honolulu Division (District Court).

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Joo was convicted of Operating a vehicle under the

influence of an intoxicant (OVUII), in violation of Hawaii

Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2019).2

1 The Honorable Michelle N. Comeau presided.

2 HRS § 291E-61(a)(1) states:

§291E-61 Operating a vehicle under the influence of

an intoxicant. (a) A person commits the offense of

operating a vehicle under the influence of an intoxicant if

the person operates or assumes actual physical control of a

vehicle:

(1) While under the influence of alcohol in an

amount sufficient to impair the person's normal

mental faculties or ability to care for the

person and guard against casualty[.]

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000420

31-MAR-2021

07:53 AM

Dkt. 39 SO
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On appeal, Joo contends: (1) the District Court failed

to conduct an adequate Tachibana colloquy,3 which was not

harmless; and (2) there was insufficient evidence to convict him

of OVUII. 

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

affirm.

(1) Joo asserts the following arguments in challenging

the Tachibana colloquy in this case:

(a) when the District Court asked "And you understand

that if you choose not to testify, that cannot be held against

you in deciding your case?" it was not stated as a question but

an affirmative statement which Joo simply agreed with instead of

demonstrating an understanding of his right; and further, the

District Court did not explain the meaning of "that cannot be

held against you[,]" which could have various meanings such that

the court should have explained that it was Joo's silence which

could not be held against him, and that it was the court as factfinder that would not hold Joo's silence against him;

(b) the District Court did not question Joo about his

state of mind and whether his mind was clear; and

(c) instead of asking an open-ended question, the

District Court stated: "It is the understanding of the Court that

you do not intend to testify in this case. Is that correct?" 

Joo contends the information was obtained from his attorney, who

had indicated the defense rested, the question was leading, and

it was unclear whether Joo was merely acknowledging the

information or was making his own decision. 

The Hawai#i Supreme Court has stated:

The 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. In

3 Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).

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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.

State v. Celestine, 142 Hawai#i 165, 171, 415 P.3d 907, 913

(2018) (internal citations omitted). Here, after the State

rested its case, the District Court conducted the following

colloquy with Joo:

MR. KING: Defense is going to rest, Your Honor.

THE COURT: Okay. Do you need time to talk to the

defendant? Do you need any time to speak to the

defendant?

MR. KING: No, Your Honor.

THE COURT: Okay. All right. Mr. Joo, before you rest

I want to make sure that you understand your rights

regarding whether or not to testify. Okay? So as I

discussed with you before the start of trial, you have

the constitutional right to testify in your own

defense. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And although you should consult with your

lawyer regarding your decision to testify, it is your

decision and no one can prevent you from testifying

should you choose to do so. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And if you decide to testify, the

prosecutor will be allowed to cross-examine you. Do

you understand that?

THE DEFENDANT: Yes.

THE COURT: All right. You also have the

constitutional right not to testify. Do you

understand that?

THE DEFENDANT: Yes.

THE COURT: And you understand that if you choose not

to testify, that cannot be held against you in

deciding your case?

THE DEFENDANT: Yes.

THE COURT: All right. It is the understanding of the

Court that you do not intend to testify in this case.

Is that correct?

THE DEFENDANT: Yes.

THE COURT: And that's your decision?

THE DEFENDANT: Yes.

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THE COURT: Okay. All right. And defense is resting?

MR. KING: Yes, Your Honor.

(Emphases added). 

(1a) Contrary to Joo's claim, the question "And you

understand that if you choose not to testify, that cannot be held

against you in deciding your case?" is not stated as an

affirmative statement and was not an improper leading question. 

Rather, a fair reading of this question in the totality of the

circumstances is that the District Court sought to ascertain

Joo's understanding of a principle involved in the right not to

testify. See Celestine, 142 Hawai#i at 170, 415 P.3d at 912. 

Further, the District Court properly referred to Joo's right not

to testify instead of his right to remain silent. See State v.

Han, 130 Hawai#i 83, 93 n.8, 306 P.3d 128, 138 n.8 (2013) ("A

defendant could be confused if a court states simply, 'you have

the right to remain silent' without using the accompanying

phrase, 'you have the right not to testify.'"). Additionally,

"[i]n 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. Martin, 146 Hawai#i 365, 378, 463

P.3d 1022, 1035 (2020) (citation omitted), as corrected (Apr. 23,

2020), reconsideration denied, No. SCWC-14-0001090, 2020 WL

2538923 (Haw. May 19, 2020). Here, the District Court properly

advised Joo of the prohibition on using his choice not to testify

against him and properly informed Joo that if he chose not to

testify it would not be used against him "in deciding your case."

Finally, even if there was a defect in this part of the

colloquy, it would be harmless. Joo decided not to testify, thus

waiving his right to testify; but in this argument Joo claims the

District Court's colloquy is deficient regarding his right not to

testify. "We have previously held that when the deficiency in a

Tachibana colloquy is not related to the right waived, the error

appears harmless." State v. Adcock, 148 Hawai#i 308, 316, 473

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P.3d 769, 777 (2020), cert. denied, No. SCWC-19-000508, 2021 WL

276152 (Haw. Jan. 27, 2021) ("[E]ven if we were to conclude that

the Circuit Court erred in not obtaining verbal confirmation that

Adcock understood his right not to testify, such error is

harmless because Adcock did not waive that right."); State v.

Dykas, No. CAAP-17-0000352, 141 Hawai#i 395, 410 P.3d 875, 2018

WL 852202, at *2 (App. Feb. 28, 2018) (SDO) (holding it was

harmless error where district court failed to advise defendant

that no adverse inference could be drawn if defendant did not

testify, and defendant chose not to testify).

(1b) Joo relies on State v. Jenkins, No. CAAP-16-

0000120, 144 Hawai#i 383, 442 P.3d 446, 2019 WL 2223535, at *2

(App. May 23, 2019) (mem.), to assert that the District Court

erred in not questioning him about his state of mind and whether

his mind was clear. Jenkins is distinguishable because the

colloquy in Jenkins was essentially one long advisement by the

trial court, with a single response from the defendant. Further,

although there is reference in Jenkins about a failure to inquire

into the defendant's state of mind, there is no citation to any

authority mandating such an inquiry. Further, although Joo also

states that inquiring into his state of mind was particularly

important because he was utilizing an interpreter during the

trial, citing State v. Krstoth, 138 Hawai#i 268, 378 P.3d 984

(2016), Krstoth does not require an inquiry into a defendant's

state of mind during a colloquy. Unlike in Han, 130 Hawai#i at

90-93, 306 P.3d at 135-38, which also involved a defendant

utilizing an interpreter, the District Court's colloquy here

advised Joo of the required Tachibana rights and principles, and

inquired if he understood his rights at multiple points during

the colloquy. Further, Joo does not point to anything in the

record that would alert the District Court that he was not of a

proper state of mind during the proceedings. Cf. State v. Kirby,

No. CAAP-16-0000869, 142 Hawai#i 464, 420 P.3d 994, 2018 WL

3134523, at *2-3, (App. June 27, 2018) (SDO).

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Given the record in this case, we do not find merit in

this argument.

(1c) Joo's final challenge to the colloquy is where

the District Court stated: "All right. It is the understanding

of the Court that you do not intend to testify in this case. Is

that correct?" We disagree with Joo's claim that this was an

improper leading question. Rather, it is consistent with

Celestine, in which the Hawai#i Supreme Court stated "[t]he

second time we suggested a verbal exchange should occur is after

the court indicates to the defendant its understanding that the

defendant does not intend to testify[,]" 142 Hawai#i at 170, 415

P.3d at 912, and noted that "[t]he fact that the court is

conducting the Tachibana colloquy with the defendant generally

indicates that defense counsel has informed the court that the

defendant does not intend to testify." Id. at 170 n.12, 415 P.3d

at 912 n.12.

Moreover, this part of the colloquy did not render the

colloquy unclear, and in any event, the District Court

immediately followed-up by asking, "And that's your decision?" to

which Joo answered, "Yes."

Under the totality of the circumstances, Joo knowingly,

intelligently, and voluntarily waived his right to testify. The

District Court advised Joo of the required Tachibana advisements,

and Joo affirmed that he understood each advisement on-the-record

-- that he had the right to testify, no one could prevent him

from testifying, if he testified the prosecution could crossexamine him, he had the right not to testify, and the decision

not to testify could not be held against him in deciding his

case. Joo affirmed that he did not intend to testify and that it

was his decision.

Given the record, we reject Joo's challenge to the

Tachibana colloquy in this case. 

(2) When the evidence adduced at trial is considered

in the light strongest for the prosecution, there was substantial

evidence to convict Joo of OVUII. State v. Matavale, 115 Hawai#i

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149, 157-58, 166 P.3d 322, 330-31 (2007) (citations omitted). 

While in his vehicle stopped at a red light at the intersection

of Lunalilo and Pensacola Streets, which are public ways,

streets, roads, or highways in the City and County of Honolulu,

State of Hawai#i, Joo tossed a cigarette butt out of the window

and accelerated at a high rate of speed to the next intersection

when the light turned green. After Joo was stopped, Officer

Mitchell Cadina (Officer Cadina) noticed Joo had red, watery, and

glassy eyes and an odor of an alcoholic beverage on his breath. 

Joo was also trying to stay away from Officer Cadina by leaning

away from him while speaking. 

Corporal Ernest Chang (Corporal Chang) testified that

he observed Joo to have red, glassy eyes, and further that he

could smell an odor of an alcoholic beverage from Joo when Joo

exited his vehicle and as they walked to a parking lot area. Joo

had agreed to participate in a field sobriety test. During the

walk-and-turn test, Corporal Chang observed that Joo lost his

balance and stepped out of position during the instructional

phase. Further, during the initial nine steps, Joo missed a

heel-to-toe on the fourth step by one or two inches, his arms

were held out during the entire test, he took ten steps instead

of nine, and during the nine steps back he missed a heel-to-toe

on the third step by one or two inches, all contrary to the

instructions. 

During the one-leg stand test, Corporal Chang observed

that Joo was swaying left to right the entire time and that he

held his arms out about 18 to 20 inches, hopped, and his left

foot touched the ground, which was contrary to the instructions. 

There was substantial evidence that Joo was under the

influence of alcohol in an amount sufficient to impair his normal

mental faculties or ability to care for himself and guard against

casualty while operating or assuming actual physical control of a

vehicle on a public way, street, road, or highway. 

Therefore, IT IS HEREBY ORDERED that the Notice of

Entry of Judgment and/or Order and Plea/Judgment, filed on May 7,

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2019, in the District Court of the First Circuit, Honolulu

Division, is affirmed.

DATED: Honolulu, Hawai#i, March 31, 2021. 

On the briefs:

Samuel P. King, Jr., 

for Defendant-Appellant. 

Loren J. Thomas, 

Deputy Prosecuting Attorney, 

for Plaintiff-Appellee. 

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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