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State v. Chang

Supreme Court of Hawaii

June 28, 2019

STATE OF HAWAII, Respondent/Plaintiff-Appellee,
DAVIS YEN HOY CHANG, Petitioner/Defendant-Appellant.


          Alen M. Kaneshiro for petitioner

          Brian R. Vincent for respondent


          RECKTENWALD, C.J. [1]


         This case requires us to consider the advisements that a trial court provided a defendant with regard to the right to testify, when the court consolidated a suppression motion with the trial on the merits.

         Davis Yen Hoy Chang (Chang) was charged with Operating a Vehicle Under the Influence of an Intoxicant (OVUII).[2] Chang filed a motion to suppress statements that he allegedly made to the police officer who arrested him. The District Court of the First Circuit consolidated the hearing on Chang's motion to suppress with his bench trial, and provided Chang with several advisements about his right to testify. Chang declined to testify. The district court granted the suppression motion in part, but found Chang guilty. After unsuccessfully appealing to the Intermediate Court of Appeals (ICA), Chang timely filed an application for writ of certiorari with this court.

         We conclude that the district court erroneously advised Chang with regard to his right to testify in the context of a consolidated suppression hearing and trial. Accordingly, we vacate his conviction, and remand the case for further proceedings.


         A. District Court Proceedings

         1. Preliminary Matters

         Chang was charged by complaint with OVUII. Chang filed motions to suppress all verbal and non-verbal statements that he made after he was pulled over by Honolulu Police Department Officer Jared Spiker (Officer Spiker) and prior to his arrest, including his performance on the standardized field sobriety test (SFST).

         2. Consolidated Suppression Hearing and Bench Trial

         At the outset of the proceeding, the court asked defense counsel if counsel was going to consolidate the hearing on the motion to suppress with the bench trial. The district court[3] engaged Chang as follows:

The Court: Mr. Chang, based on what your attorney is saying, it's my understanding that we're going to consolidate this motion with the trial[.] [I]s that your understanding as well?
Chang: Correct.
The Court: And that's what you want to do today?
Chang: Correct.
The Court: Okay. So then, since we're ultimately doing a trial, I'm going to go through my [] trial questions.

         After the district court asked Chang preliminary questions regarding a proposed plea agreement, Chang pled not guilty. The district court then accepted the parties' stipulations, for the purposes of both the suppression motion and trial, that Officer Spiker was trained, experienced, and qualified to administer and evaluate SFSTs; would testify only as a lay witness; would not testify about the horizontal gaze nystagmus (HGN) portion of the SFST; and would not make legal conclusions as to whether Chang had passed or failed any portions of the SFST.

         The district court informed Chang of his right to testify and his right not to testify at trial[4] as follows:

The Court: [S]ince we're doing this as a . . .consolidated trial, I have to inform you, Mr. Chang, you have the constitutional right to testify in your own defense. Do you understand that?
Chang: Yes, I do.
The Court: Okay. Although you should consult with your attorney regarding the decision to testify, it is your decision and no one can prevent you from testifying should you . . . choose to do so; do you understand?
Chang: I do.
The Court: Okay. If you decide to testify, the prosecutor will be allowed to cross-examine you; do you understand?
Chang: I do understand that.
The Court: Okay. You also have a constitutional right not to testify and to remain silent. Do you understand that as well?
Chang: Yes.
The Court: Okay. If you choose not to testify, the court cannot hold your silence against you in deciding your case; do you understand?
Chang: Yes.
The Court: Do you have any questions about what I have explained?
Chang: No, I do not.

         The State called Officer Spiker as its sole witness for the purposes of both the suppression motion and the trial.

         a. Officer Spiker's Testimony

         Officer Spiker testified that at approximately 1:10 a.m. on November 13, 2016, he noticed Chang driving without illuminated headlights. Officer Spiker observed Chang make an illegal left turn at an intersection with "at least two signs that [said] no left turn." Officer Spiker followed Chang and pulled him over.

         Officer Spiker testified that as soon as he began conversing with Chang, who had been driving alone, he smelled a "strong odor of alcohol" coming from Chang's breath. He also noticed that Chang's eyes were "red, watery, and glassy," that Chang's face was flushed, and that Chang's speech was slurred.

         Officer Spiker asked for Chang's driver's license, registration, and insurance, which Chang provided without difficulty or delay. Officer Spiker informed Chang that he had been pulled over because of his driving infractions and offered Chang an SFST.[5] At Officer Spiker's request, Chang exited his vehicle without difficulty. Officer Spiker testified that at this point, Chang "was not free to leave."

         Officer Spiker testified that Chang agreed to participate in the SFST and stated "that he had [had] some drinks earlier." After Chang answered "no" to each of the medical rule-out questions posed by Officer Spiker, Officer Spiker administered the SFST. The SFST consisted of the HGN test, the walk-and-turn test, and the one-leg-stand test. Officer Spiker testified that Chang did not perform the walk-and-turn test or the one-leg-stand test as instructed. With respect to the walk-and-turn test, Officer Spiker noted that Chang started the test before being instructed to do so; missed numerous heel-to-toe steps; stepped off the line three times; and turned the wrong way without the required pivot. With respect to the one-leg-stand test, Officer Spiker noted that Chang's right foot touched the ground multiple times during the balancing sets; Chang did not look at his foot throughout the sets despite instructions to do so; Chang skipped numbers as he counted; and Chang was "swaying noticeably."

         Officer Spiker further testified that throughout the SFST, Chang was argumentative, interrupted him, and asked him at least five times why he pulled Chang over, despite his repeated explanations. Officer Spiker also testified that, at some point during the SFST, Chang was offered a preliminary alcohol screening device test (PAS), but refused the PAS because he said "he didn't trust it."

         Officer Spiker testified that he arrested Chang for OVUII, in light of the totality of the circumstances. He explained that he considers the "totality of the circumstances" when deciding whether to arrest someone for OVUII, including the amount of traffic violations observed, indicia of intoxication, and an individual's demeanor, SFST performance, and abilities to cooperate and follow instructions. Officer Spiker also testified that he did not at any point advise Chang regarding the right to remain silent.

         b. Hearing on the Motion to Suppress

         After Officer Spiker testified, the district court addressed Chang's motion to suppress. The following discussion took place, wherein defense counsel initially indicated that Chang intended to testify for purposes of the suppression hearing:

The Court: Why don't we do the argument on the motion . . . first, okay? . . . . [W]ell, even before then, did you want to have anyone [] testify in regard to the motion? . . . [I]f you're going to have [Chang] testify in regard to the motion, I need to know[.]
Wait. This is going to get a little confusing since we're doing the motion combined with the trial. So I'm going to Tachibana[6] him a second time - okay. Wait. So the State has no further witnesses. You're saying ...

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