Background
Jonathan Ellway was arrested in February 2021 on the Hana Highway on suspicion of driving under the influence. A breath test at the Wailuku police station returned a blood alcohol content of 0.113, above the 0.08 legal limit. The State charged him with Operating a Vehicle Under the Influence of an Intoxicant (OVUII) under HRS § 291E-61(a)(1) and/or (a)(3).
Ellway’s bench trial began on September 17, 2021, before a district court judge who heard testimony from a Maui Police Department intoxilyzer supervisor. The trial was continued to December 17, 2021. In the interim, the presiding judge was appointed to the circuit court bench and was sworn in as a circuit court judge on that very reconvening date, leaving the bench trial unfinished after jeopardy had already attached.
A second district court judge was assigned and, apparently relying on an unpublished ICA decision in State v. Fleming, reviewed the trial record and video of the prior proceedings and proceeded to hear the State’s second witness, conduct a Tachibana colloquy, and find Ellway guilty. Although the prosecutor expressly raised concerns about proceeding with a changed trier of fact, no mistrial was declared. Defense counsel, after a brief recess to consult with Ellway about the Fleming decision, stated there was no objection to the second judge “continuing” the trial. The ICA affirmed the conviction.
The Court’s Holding
The Hawaiʻi Supreme Court vacated the conviction, holding that the district court committed plain error by allowing a second judge to act as a new trier of fact in a criminal bench trial after jeopardy had attached before the first judge. Because HRPP Rule 25(a) — which permits mid-trial judicial substitution — applies only to jury trials, no valid procedural mechanism authorized the substitution. When the first judge departed without entering judgment, the first bench trial effectively ended without a proper mistrial declaration, and the second judge’s subsequent proceeding constituted a second prosecution for the same offense in violation of the double jeopardy clauses of the U.S. and Hawaiʻi constitutions.
The court further held that neither Ellway’s silence nor his counsel’s statement of no objection amounted to valid consent to a mistrial. The second judge framed the question as whether Ellway objected to the court “presiding over his continued trial” — not whether Ellway consented to terminating the first trial via mistrial and facing reprosecution. Because the constitutional requirement is defendant consent to a mistrial (or manifest necessity for one), the truncated colloquy could not waive Ellway’s double jeopardy rights. To the extent the ICA’s prior unpublished decision in Fleming could be read to sanction mid-evidence judicial substitution in a bench trial, that reasoning is expressly overruled.
With the unlawful second conviction vacated, jeopardy from the first trial remains attached, barring any further prosecution. The court remanded with instructions to dismiss the charge with prejudice.
Key Takeaways
- In a Hawaiian bench trial, jeopardy attaches when the court begins to hear evidence; once it attaches, the defendant has a “valued right” to have the trial completed by that particular tribunal, and a mid-evidence departure of the sole trier of fact does not extinguish that right.
- HRPP Rule 25(a), which allows judicial substitution during a trial, applies only to jury trials — not bench trials — leaving no procedural authority for a new judge to step in as a replacement fact-finder in a criminal bench trial once evidence has begun.
- To avoid a double jeopardy bar on retrial after such a disruption, the court must declare a proper mistrial supported either by the defendant’s knowing, intelligent, and voluntary consent or by manifest necessity; a general statement by counsel of “no objection” to “continuing” with a new judge is legally insufficient.
- The ICA’s earlier (unpublished) decision in State v. Fleming is overruled to the extent it implied that a mid-evidence judicial substitution in a criminal bench trial is permissible.
Why It Matters
This decision fills a significant gap in Hawaiʻi criminal procedure by establishing that the mid-trial departure of a bench-trial judge — whether through appointment, death, or other unavailability — cannot be remedied simply by substituting a second judge who reviews the record. Trial courts confronting such situations must instead follow the mistrial framework, securing either the defendant’s informed consent or a finding of manifest necessity before any retrial can proceed. Practitioners should note that a defendant’s mere failure to object, or counsel’s general acquiescence framed as consent to “continue,” will not defeat a later double jeopardy challenge.
More broadly, the ruling underscores that the double jeopardy guarantee protects a defendant’s interest in finality before the specific tribunal that began the proceeding — a right that survives even an unexpected, mid-trial interruption. Courts and prosecutors in bench-trial settings now have clear guidance: when the presiding judge becomes unavailable after evidence has begun, the constitutionally sound path is a formal mistrial proceeding, not an informal hand-off to a successor judge.