State v. Ellway

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAR-2025
08:03 AM
Dkt. 89 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
JONATHAN ELLWAY, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTA-21-00171)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Jonathan Ellway (Ellway) appeals

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

filed on April 1, 2022 by the District Court of the Second

Circuit (district court).1

On March 3, 2021, the State of Hawaiʻi (State) filed a

Complaint against Ellway charging him with violating Hawaii

Revised Statutes (HRS) § 291E-61(a)(1), and/or 291E-61(a)(3)

(2020) for operating a vehicle under the influence of an

1 The Honorable Blaine J. Kobayashi presided.
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intoxicant. The district court held a bench trial, and Ellway

was found guilty under HRS § 291E-61(a)(3).

Ellway raises four points of error on appeal,

contending that the district court erred by: (1) "denying

[Ellway's] oral motion . . . to dismiss the Complaint as being

defective under State v. Thompson, 150 Hawaiʻi 262, 500 P.3d 447

(2021)"; (2) "completing Ellway's trial" with a substitute judge

"without obtaining Ellway's knowing, intelligent and voluntary

consent through an on-the-record colloquy"; (3) "reviewing the

video of Ellway's trial [proceedings that were presided over by

the original judge] in [Ellway's] absence in violation of

[Ellway's] right to a public trial"; and (4) "admitting the

results of [Ellway's] breath test because [the] State's

[e]xhibits . . . lacked sufficient foundation."

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Ellway's points of error as follows:

(1) Ellway contends that the district court erred when

it denied Ellway's motion to dismiss the complaint as defective.

We review the trial court's ruling on a motion to dismiss a

charge for abuse of discretion. Thompson, 150 Hawaiʻi at 266,

500 P.3d at 451.

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Ellway's motion to dismiss was made during trial.

Hawaiʻi Rules of Penal Procedure (HRPP) Rule 12(b) states, in

relevant part:

(b) Pretrial motions. . . . The following must be
raised prior to trial:
(1) defenses and objections based on defects in the
institution of the prosecution;
(2) defenses and objections based on defects in the
charge (other than that it fails to show jurisdiction in
the court or to charge an offense which objections shall be
noticed by the court at any time during the pendency of the
proceedings)[.]

(Emphasis added.)

Ellway contends that the motion to dismiss was timely

under HRPP Rule 12(b) because it alleged that the district court

lacked jurisdiction over the matter, due to the State's failure

to comply with the complaint requirements under HRS § 805-1

(2014), and jurisdiction is a defense that may be noticed by the

court at any time during the pendency of the proceeding.

The Hawaiʻi Supreme Court in State v. Mortensen-Young

clarified "that HRS § 805-1 applies only to complaints for a

penal summons or an arrest warrant." 152 Hawaiʻi 385, 387, 526

P.3d 362, 364 (2023). Here, the Complaint was not for a penal

summons or an arrest warrant. See id. at 395, 526 P.3d at 372.

HRS § 805-1 is inapplicable here. We conclude, therefore, that

the district court did not abuse its discretion in denying

Ellway's motion to dismiss.

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(2) Ellway contends that the substitution of a new

judge, midway through Ellway's trial, implicated his fundamental

constitutional rights. And because the district court proceeded

without engaging in an on-the-record colloquy and "obtaining

Ellway's knowing, intelligent and voluntary [waiver]," the

district court committed reversible error. See State v. Chang,

144 Hawaiʻi 535, 545, 445 P.3d 116, 126 (2019) ("[T]rial courts

must engage in an on-the-record colloquy with a defendant . . .

to ensure that any waiver of [fundamental constitutional] rights

is knowing, intelligent, and voluntary.") (citation omitted);

State v. Sprattling, 99 Hawaiʻi 312, 321, 55 P.3d 276, 285 (2002)

("Failure to obtain a valid waiver constitutes reversible

error.") (citation omitted). We review questions of

constitutional law de novo under the right/wrong standard.

State v. Fields, 115 Hawaiʻi 503, 511, 168 P.3d 955, 963 (2007).

"[W]here a waiver goes beyond the bounds of trial

tactics and procedure, and impinges significantly on [a]

constitutionally guaranteed right," waiver must be done by the

beneficiary of the right, not by counsel. State v. Casey,

51 Haw. 99, 101, 451 P.2d 806, 808-09 (1969). "A fundamental

constitutional right is one that is explicitly or implicitly

guaranteed by the Constitution." In re Applications of Herrick,

82 Hawaiʻi 329, 345, 922 P.2d 942, 958 (1996) (cleaned up).

Ellway does not cite to legal authority recognizing the

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fundamental right to a particular judge or factfinder, and we

are unaware of such authority.

Moreover, the record reflects that the substitution of

the judge during the bench trial – to which Ellway consented –

did not infringe upon his constitutionally guaranteed rights.

Instructive here is this court's previous conclusion that a

judge could be substituted during a criminal defendant's bench

trial where, as here, the defendant failed to object to the

substitution of the new judge, the record reflects that the

substitute judge "watched the official videotape of the previous

witnesses' testimony and was completely familiar with the record

of the trial," and the defendant "failed to [otherwise]

demonstrate any prejudice to his rights under the unique facts

of [the] case." State v. Fleming, No. CAAP-XX-XXXXXXX, 2019 WL

5418065, at *4–5 (Haw. App. Oct. 22, 2019) (SDO).

Here, the substitute judge represented to the parties

that he "reviewed all of the records and files in [the] case,

including reviewing the entire videotape proceedings of the

trial." Ellway's counsel represented on the record that she had

spoken with Ellway about the substitution of a new judge to

preside over the case, and that she and Ellway had "no objection

to [the substitute judge] presiding and continuing [the] trial."

Ellway does not demonstrate how he was prejudiced by the

substitution of a new judge.

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We conclude, therefore, that the district court was

not wrong in continuing the trial with a substitute judge, and

in doing so without conducting an on-the-record colloquy.

(3) Ellway contends that the district court violated

his "right to a public trial" when the substitute judge reviewed

the video of Ellway's prior trial proceedings in his absence.

We review questions of constitutional law de novo under the

right/wrong standard. Fields, 115 Hawaiʻi at 511, 168 P.3d at

963.

The Sixth Amendment of the U.S. Constitution states

that "[i]n all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed." U.S. Const. amend. VI. The public trial right

applies to most stages of a trial. Weaver v. Massachusetts, 582

U.S. 286, 292 (2017). Article I, section 14 of the Constitution

of the State of Hawai‛i provides an analogous right to a public

trial.

The substitute judge did not "close" the proceedings

to the public; he reviewed the video recordings of the part of

the bench trial over which another judge had presided. There is

no evidence in the record to suggest that the district court,

while reviewing the video recordings, conducted further

proceedings that should have been public.

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We conclude, therefore, that the district court did

not err when it reviewed Ellway's prior trial proceedings, and

it did not violate Ellway's right to a public trial.

(4) Ellway contends that the district court "committed

reversible error" by admitting into evidence, without sufficient

foundation, the State's Certificates of Analysis (State Exhibits

3 and 4)2 under the business records hearsay exception. "[W]here

the admissibility of evidence is determined by application of

the hearsay rule, there can be only one correct result, and the

appropriate standard for appellate review is the right/wrong

standard." State v. Moore, 82 Hawaiʻi 202, 217, 921 P.2d 122,

137 (1996) (cleaned up).

Hawaii Rules of Evidence (HRE) Rule 803(b)(6) provides

that the following category, inter alia, is excluded from the

hearsay rule:

Records of regularly conducted activity. A memorandum
report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made in the
course of a regularly conducted activity, at or near the
time of the acts, events, conditions, opinions, or
diagnoses.

(Emphasis added.)

To be admissible under HRE Rule 803(b)(6), the party

seeking to introduce the evidence must establish foundation

2 The record reflects that Maui Police Department (MPD) receives a
certification of analysis when it orders reference samples for its breath
alcohol testing instruments. The reference samples are used to test the
accuracy of the breath alcohol testing instruments.

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through the "testimony of the custodian or other qualified

witness, or by certification that complies with rule 902(11) or

a statute permitting certification." Qualified witnesses do not

need to be employees of the business that created the document,

nor do they need to have "direct, personal knowledge of how the

document was created." State v. Fitzwater, 122 Hawaiʻi 354, 366,

227 P.3d 520, 532 (2010). "[E]mployee[s] of a business that

receive[] records from another business can be . . . qualified

witness[es]" if they "have enough familiarity with the record-

keeping system of the business in question to explain how the

record came into existence in the ordinary course of business,"

and the records "were created in the regular course of some

entity's business." Id. (citation omitted).

However, the witness must not only show that the

organization relied on the records created by another

entity, there must also be other indicia of reliability

such as having a contractual obligation to create the

records. Id. at 366–69, 227 P.3d at 532–35.

Sergeant Nicholas Krau's testimony during the trial

demonstrated that: (1) MPD regularly orders the breath alcohol

test reference samples, which come with the Certificates of

Analysis; (2) MPD relies on the accuracy of the contents of

these certificates; (3) MPD has a contractual relationship with

the vendors who make these certificates; and (4) the Department

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of Health (DOH) has approved the vendors of these certificates.

Therefore, MPD provided sufficient indicia of reliability as to

the Certificates of Analysis, and the district court did not err

in admitting them into evidence.3

For the foregoing reasons, we affirm the Judgment.

DATED: Honolulu, Hawaiʻi, March 20, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Hayden Aluli,
for Defendant-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Richard B. Rost,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for Plaintiff-Appellee.

3 We note that State Exhibits 3 and 4 would have also been
admissible because MPD had approval from the DOH DUI Coordinator. State v.
Werle, 121 Hawaiʻi 274, 282-83, 218 P.3d 762, 770-71 (2009) (holding that in
lieu of expert testimony, the proponent of the evidence may show that the DUI
coordinator approved the specific testing procedure and instrument as a
"shortcut" to establishing reliability).

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