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State v. Monteil

Supreme Court of Hawai'i

December 23, 2014

STATE OF HAWAI'I, Respondent/Plantiff-Appellee,
v.
JACQUES RAYMOND MONTEIL, Petitioner/Defendant-Appellant

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. (CAAP-12-0000052, 3P711-1171).

Peter Van Name Esser and Robert D.S. Kim, for petitioner.

Mitchell D. Roth and Jason R. Kwiat, for respondent.

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

Page 568

[134 Hawai'i 362] OPINION

POLLACK, J.

I. Introduction

Defendant was convicted by the District Court for the Third Circuit (district court) of committing the offense of prostitution in violation of Hawai'i Revised Statutes (HRS) § 712-1200(1) (1993, Supp. 2013). Defendant appealed the conviction to the Intermediate Court of Appeals (ICA), arguing there was insufficient evidence to sustain the conviction. The ICA affirmed the conviction. Defendant filed an application for writ of certiorari in which he argued the ICA erred by finding sufficient evidence to prove the commission of a prostitution offense. We affirm the judgment on appeal of the ICA, and clarify the prior-to-trial advisement required by State v. Lewis, 94 Hawai'i 292, 297, 12 P.3d 1233, 1238 (2000).

II. Background

On August 3, 2011, James Raymond Monteil was charged by complaint in the district court with the offense of prostitution, in violation of HRS Section 712-1200(1).[1] Monteil pleaded not guilty to the charge, and trial was scheduled before the district court on January 10, 2012.

A. Prior-to-Trial Tachibana Advisory

At the commencement of Monteil's bench trial,[2] the judge conducted the following colloquy to inform Monteil of his right to testify and the right not to testify:

THE COURT: All right. Mr. Monteil, let me inform you: You have the right to

Page 569

[134 Hawai'i 363] remain silent and the right against self-incrimination. No one can force you to testify in this matter. Do you understand?
MR. MONTEIL: Yes, your Honor.
THE COURT: You don't have to present any evidence whatsoever. It's up to the State to prove this case beyond a reasonable doubt. Do you understand?
MR. MONTEIL: Yes, sir.
THE COURT: Do you understand that if you wish to testify, the Court will allow you to do so; and if you do wish to testify, your testimony will be taken under oath and subject to penalties of perjury, the prosecutor can cross-examine you, and the Court can consider your testimony in deciding if you are guilty or not guilty?
MR. MONTEIL: Yes, your Honor.
THE COURT: You can wait until after the State has completed its evidence in order to decide if you wish to testify, and you can talk to your attorney before you decide. All right?
MR. MONTEIL: Yes, your Honor.
THE COURT: All right. Call your first witness.

Notably, the court did not inform Monteil that if he did not testify, his silence could not be used against him in deciding the case.

B. Trial

At the conclusion of the court's colloquy, the State called its first witness, Honolulu Police Department (HPD) Sergeant Chad Taniyama (Sgt. Taniyama). Sgt. Taniyama testified that his duties as a detective included organizing prostitution sting operations and that he had conducted approximately ten such operations with the HPD. Some operations involved setting up email accounts and placing advertisements in the escort section of web sites such as " Backpage" or " Craigslist."

Sgt. Taniyama testified he was the lead investigator in such an operation on July 18, 2011. He placed an advertisement in the escort section of " backpage.com" on July 16, 2011, entitled, " ExOtIC BeAuTy AwAiTs You ToDaY." The advertisement read as follows:

Hey fellas my name is SiN.
I am here for a short visit, take advantage while you can. I'm proof that amazing beauty comes in small packages. I'm 5' with race car curves and eager to make your dreams come true. Your imagination is our only limit. 100% REAL!! I guarantee you won't want to say goodbye.
420 Friendly.
Send me a message at sinsplayground@gmail.com to set up an appointment.

Sgt. Taniyama testified he received email messages from several individuals in response to the advertisement, including messages from Monteil on July 16 and July 18, 2011.[3] Monteil's email conversation with Sgt. Taniyama on July 16, 2011, reads, in relevant part, as follows:

MONTEIL: r u on big island?
SGT. TANIYAMA (posing as " SiN" ): Hey babe, i am not on the Big Island right now. i will b in kona on Monday. i would love to meet. lmk if we can hook up.
MONTEIL: grat, what time u be i kona? lmk will like to meet u
SiN: ill b in kona in the afternoon. i shold b ready 2 go by 5 or so. if you would like to book now i can pencil u in. my book fills up pretty quickly. lmk if we can meet and what kind of party u want.
MONTEIL: so then i be #1 in kona. . . where you staying? catch a drink first is better if u ok with that
SiN: like I said hun my book fills up fast. my first party is taken. book now or miss the greatest ride on earth. can have a drink at my place if u like. ill be staying in kona town. what kind of party ru lookin for tiger?
MONTEIL: drink at ur place is k. just good fun - do i really need to say on e-mail . . . . n yes what time do u have open?
SiN: that my screening hun, making sure ur not popo. xoxoxo.

Page 570

[134 Hawai'i 364] Convince me ur not popo and u can have me 6. xoxoxo.
MONTEIL: not a cop if that is what u r asking - the ride of my life that is . . . r u in any law enforcement group since we are been honest?
convinced enough?
SiN: me?? popo . . . hehehe. i have played a naughty cop many times. jus lmk what kind of party u want babe. xoxoxoxo.
MONTEIL: gfe experience for an hour or two
u r so freaking cute too . . .
SiN: gfe sounds like fun!! my part for a hour will be $300. I cant wait to get my hands on you. i will let u know where to cum on ...

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