76 Hawai'i 237, Domingo v. State

• Decision Date: 26 May 1994
• Docket Number: No. 16127,16127
• Citation: 873 P.2d 775,76 Hawaii 237
• Parties: 76 Hawai'i 237 Orlino C. DOMINGO, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.
• Court: Hawaii Supreme Court

Page 775

873 P.2d 775

76 Hawai'i 237

Orlino C. DOMINGO, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.

No. 16127.

Supreme Court of Hawai'i.

May 26, 1994.

Syllabus by the Court

1. In order to establish the ineffective assistance of counsel at trial, one must show: (1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and (2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.

2. The right to a jury trial in serious criminal cases is a fundamental right.

3. The waiver of the right to a jury trial, in and of itself, does not result in the withdrawal or substantial impairment of any defense.

4. Where it appears from the record that a defendant has waived a constitutional right, the defendant carries the burden of proof to show otherwise by a preponderance of the evidence.

5. The right to a trial by jury is a personal right that cannot be waived by anyone other than the defendant.

6. In order to establish the ineffective assistance of counsel on appeal, one must show: (1) that appellate counsel omitted an appealable issue; and (2) that in light of the entire record, the status of the law, and the space and time limitations inherent in the appellate process, a reasonably competent, informed, and diligent criminal attorney would not have omitted that issue.

7. An appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trial judge.

8. If appellate counsel was precluded from raising an issue on appeal because trial counsel failed to preserve that issue for appellate review, that issue is not an "appealable issue."

9. If a petition for post-conviction relief is not dismissed as "patently frivolous," Rule 40(g) of the Hawai'i Rules of Penal Procedure requires the circuit court to "state its findings of fact and conclusions of law in entering its judgment on the petition."

10. The right against self-incrimination prohibits the use at trial of statements made by a defendant during a previous criminal trial if that trial testimony was in fact impelled by the prosecution's wrongful use of illegally obtained confessions. Where the reversal of the original criminal trial was not based on the use of illegally obtained confessions in the prosecution's case-in-chief, however, the right against self-incrimination does not prevent the prosecution from introducing the defendant's testimony into evidence on retrial.

11. Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

12. A retrial after the reversal of a conviction for trial error does not violate the constitutional protection against double jeopardy.

Collin K.C. Lau, on the briefs, Honolulu, for petitioner-appellant.

Charlotte J. Duarte, Deputy Prosecuting Atty., on the briefs, Honolulu, for respondent-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

Orlino C. Domingo appeals from the circuit court's denial of his petition for post-conviction relief. For the reasons set forth below, we affirm.

I. BACKGROUND

On April 22, 1985, Domingo was charged by way of complaint with the murder of his stepfather in violation of Hawaii Revised Statutes (HRS) § 707-701 (1985). Domingo was found guilty as charged in a jury trial (the first trial) and sentenced to life imprisonment with the possibility of parole. The evidence presented by the prosecution included, among other things, a "warning of rights" form that had been signed by Domingo after he was arrested, testimony of one of Domingo's mental examiners, and evidence of statements made by Domingo when he called 911 after he shot his stepfather. The evidence presented by the defense consisted largely of Domingo's own testimony. On appeal, the judgment was reversed and the case remanded for a new trial on the grounds that (1) the introduction into evidence of the "warning of rights" form violated Domingo's rights under article 1, sections 10 and 14 of the Hawai'i Constitution because of the likelihood that the jury could have inferred therefrom that Domingo had invoked his right to remain silent, and (2) the use of statements made by Domingo to a mental examiner to impeach Domingo's testimony violated HRS § 704-416 (1985). State v. Domingo, 69 Haw. 68, 733 P.2d 690 (1987).

On remand, Domingo waived his right to a jury trial and, in the subsequent jury-waived trial (the second trial), Domingo was again convicted and sentenced to life imprisonment with the possibility of parole. In the second trial, although Domingo did not testify, portions of the transcript of Domingo's testimony from the first trial were introduced by the prosecution during its case-in-chief. Domingo's attorney did not object because the prosecution only offered those portions of Domingo's testimony that did not relate to the grounds on which the judgment in the first trial had been reversed, and the transcript was admitted into evidence. In addition, the prosecution again presented evidence regarding statements made by Domingo when he called 911. Domingo appealed the second conviction arguing that the circuit court misapplied the law regarding extreme emotional disturbance manslaughter and that his trial counsel provided ineffective assistance by failing to introduce certain evidence in support of his "psycho-cultural" theory of emotional disturbance. We denied the appeal and affirmed the judgment of the circuit court in the second trial. State v. Domingo, 71 Haw. 657, 833 P.2d 897 (1990) (mem.).

Domingo subsequently filed a petition for post-conviction relief pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40 (1989). ¹ In the petition, Domingo alleged that (1) the conviction was obtained in violation of his privilege against self-incrimination, (2) the prosecution unconstitutionally failed to disclose evidence favorable to the defense, (3) the conviction violated the protection against double jeopardy, and (4) he was denied the effective assistance of counsel. The circuit court reviewed the petition and made an initial determination that the petition was meritorious. Accordingly, counsel was appointed to assist Domingo and an evidentiary hearing was held. The only evidence presented at that hearing was testimony from Domingo.

After Domingo testified, the circuit court heard arguments regarding the appropriateness of post-conviction relief. At the conclusion of the hearing, the circuit court orally denied Domingo's petition. A written order reflecting the circuit court's ruling was subsequently entered on April 20, 1992. The order stated the basis for denying the petition as follows:

Nothing before the Court in evidence or on record shows that trial counsel's lack of skill or diligence or any error or omission results [sic] in a withdrawal or an impairment of a potentially meritorious defense at trial, nor that counsel's assistance at the trial and at the appellate level were not within the range of competence demanded of attorney's [sic] in criminal cases.

No separate findings of fact or conclusions of law were filed and no express references were made to any of Domingo's asserted grounds for relief, other than the alleged ineffective assistance of counsel. This appeal followed.

II. DISCUSSION

A. Ineffective Assistance of Counsel

Domingo argues that the circuit court erred in rejecting his claim that he had received ineffective assistance of counsel. He argues that ineffective assistance at trial was demonstrated by his testimony regarding the decision to waive his right to a jury trial and that ineffective assistance on appeal was demonstrated by his testimony regarding appellate counsel's failure to properly raise certain issues on appeal. We cannot agree.

1. Ineffective assistance at trial

In order to establish the ineffective assistance of counsel at trial, a petitioner must show: " '1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.' " State v. Silva, 75 Haw. 419, 429, 864 P.2d 583, 593 (1993) (quoting State v. Aplaca, 74 Haw. 54, 66-67, 837 P.2d 1298, 1305 (1992)). Although the right to a jury trial in serious criminal cases is a fundamental right, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh'g denied, 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968), the waiver of that right, in and of itself, does not result in the withdrawal or substantial impairment of any defense. Moreover, "where it appears from the record that a defendant has waived a constitutional right, the defendant carries the burden of proof to show otherwise by a preponderance of the evidence." State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993). In the instant case, the record reveals that prior to the second trial, the circuit court questioned Domingo at length before accepting the waiver of his right to a trial by jury, and Domingo has presented no evidence that the waiver was anything other than a knowing and voluntary waiver.

On the other hand, the right to a trial by jury is a personal right that cannot be waived by anyone other than the defendant, Ibuos, 75 Haw. at 121, 857 P.2d at 578, and Domingo could claim that his attorney rendered ineffective assistance by usurping Domingo's opportunity to demand a jury trial. Domingo's testimony regarding the decision to proceed by way of a jury-waived trial in the second trial, however, does not support such a contention:

Q. ... Do you recall talking to your attorney about not having a jury trial the second time?

A. I waived my right...