State v. Eckert

508 P.3d 292, 151 Haw. 18

• Court: Hawaii Intermediate Court of Appeals
• Decided: April 29, 2022
• Docket: CAAP-21-0000432
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 29-APR-2022 07:47 AM Dkt. 40 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v. JOSEPH ECKERT, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HONOLULU DIVISION) (CASE NO. 1DTA-21-00038)

SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Joseph Eckert (Eckert) appeals from

the Notice of Entry of Judgment and/or Order and Plea/Judgment

(Judgment) entered on June 29, 2021, in the Honolulu Division of

the District Court of the First Circuit (District Court).1 After

a bench trial, Eckert was convicted of Operating a Vehicle Under

1 The Honorable Ann S. Isobe presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the Influence of an Intoxicant (OVUII) under Hawaii Revised

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

Eckert raises three points of error on appeal,

contending that the District Court erred: (1) by failing to

conduct a sufficient colloquy with Eckert concerning his

constitutional right to testify in accordance with Tachibana v.

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

94 Hawai#i 292, 12 P.3d 1233 (2000); (2) in convicting Eckert of

OVUII because the State failed to prove beyond a reasonable doubt

that Eckert was under the influence of alcohol in an amount

sufficient to impair his normal faculties or ability to care for

himself and guard against casualty; and (3) by failing to address

Eckert regarding his right to presentence allocution as required

by article I, section 5 of the Hawai#i Constitution and HRS §

706-604(1) (2014).

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 Eckert's points of error as follows:

2 HRS § 291E-61(a)(1) provides:

§ 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[.]

2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(1) As the State concedes, the District Court plainly

erred by omitting parts of the Tachibana colloquy and by not

obtaining Eckert's waiver of his right to testify directly from

Eckert, as opposed to through Eckert's attorney. The record

confirms, inter alia, that the District Court failed to inform

Eckert of at least three of the required advisements.

Accordingly, the record does not demonstrate that Eckert's waiver

of his right to testify was knowing, intelligent, and voluntary.

Nor does the record indicate what Eckert might have averred had

he testified. Therefore, we cannot conclude that the District

Court's error was harmless.

(2) We reject Eckert's argument that there was

insufficient evidence to convict him of OVUII pursuant to HRS

§ 291E-61(a)(1). Honolulu Police Department (HPD) Officer Jordan

Cho (Officer Cho) testified, inter alia, that he detected a "very

strong scent of an alcoholic beverage" coming from Eckert's

breath and Eckert was unsteady on his feet. Officer Cho noticed

that Eckert had red, glassy eyes, and slurred speech, and Eckert

looked like he might fall over if he stood up from the wall he

was sitting on. HPD Officer Jared Luke (Officer Luke) testified

that he observed Eckert's glassy, watery eyes, and the smell of

an alcoholic beverage from ten feet away from Eckert. Officer

Luke also observed that Eckert's face was flushed and he had a

very slurred manner of speech. Officer Luke faintly detected the

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

smell of the alcoholic beverage in his vehicle as he transported

Eckert to the police station.

The witness who observed Eckert crash his vehicle into

a parked vehicle testified that after the initial collision,

Eckert continued to press on the gas for a period of time, and

then attempted to unsuccessfully reverse his vehicle, but the two

vehicles were stuck together. The witness described Eckert as

swaying, maybe stumbling, as Eckert walked down the street after

the accident. While, as Eckert argues, there were possible

alternative assessments of the evidence, we cannot conclude that

the District Court clearly erred in its assessment of the

evidence presented at trial.

Viewing the evidence and all reasonable inferences

therefrom in the light most favorable to the State, we conclude

that there was substantial evidence to support Eckert's

conviction pursuant to HRS § 291E-61(a)(1). See, e.g., State v.

Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007).

(3) In light of our review of Eckert's first two

points of error, we conclude that the District Court's Judgment

must be vacated and this case remanded for a new trial.

Accordingly, we need not reach the issue of the District Court's

failure to personally address Eckert regarding Eckert's right to

pre-sentence allocution, which the State concedes constituted

plain error.

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

For these reasons, the District Court's June 29, 2021

Judgment is vacated, and this case is remanded for a new trial.

DATED: Honolulu, Hawai#i, April 29, 2022.

On the briefs: /s/ Lisa M. Ginoza Henry P. Ting, Chief Judge Deputy Public Defender, for Defendant-Appellant. /s/ Katherine G. Leonard Associate Judge Stephen K. Tsushima, Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka City and County of Honolulu, Associate Judge for Plaintiff-Appellee.