78 Hawai'i 115, State v. Silva, No. 16411

• Court: Hawaii Court of Appeals
• Writing for the Court: Before BURNS; ACOBA
• Citation: 890 P.2d 702
• Parties: 78 Hawai'i 115 STATE of Hawai'i, Plaintiff-Appellee, v. Solomon SILVA, Defendant-Appellant.
• Docket Number: No. 16411
• Decision Date: 13 March 1995

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890 P.2d 702 78 Hawai'i 115 STATE of Hawai'i, Plaintiff-Appellee,
v.
Solomon SILVA, Defendant-Appellant. No. 16411. Intermediate Court of Appeals of Hawai'i. March 13, 1995.

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[78 Hawai'i 116] Syllabus by the Court

A defendant's right to an impartial judge is guaranteed by the United States Constitution through the due process clause of the fourteenth amendment and by the Hawai'i Constitution through the due process clause in section 5 of article I. While a trial court has the power to question witnesses, it should not assume the role of an advocate for either party. When a judge fails to act impartially and takes on the role of a prosecutor, the error is plain, inherently prejudicial, and not harmless.

A defendant's right to testify in his or her own defense is guaranteed by the United States Constitution through the due process clause of the fourteenth amendment, and the fifth and sixth amendments (through the fourteenth amendment), and by the Hawai'i Constitution through the textually parallel provisions of sections 5, 14, and 10 of article I. When the court dissuades a defendant from testifying after the defendant expresses a desire to do so, the error is plain and not harmless beyond a reasonable doubt where the record does not indicate what the defendant would have testified to had he been permitted to do so.

When a court dissuades a defendant from testifying, it interferes with the attorney-client relationship protected by the United States Constitution's sixth amendment and the Hawai'i Constitution's section 14, article I guarantees of the right to counsel. The court's violation of defendant's right to counsel was plain, and not harmless beyond a reasonable doubt where the record demonstrates that the defendant's decision to forgo testifying was the direct result of the court's admonitions.

In applying the harmless error rule under Hawai'i Rules of Penal Procedure Rule 52 to the violation of a United States or Hawai'i constitutional right, the constitutional error must be found to be harmless beyond a reasonable doubt before it can be held to be harmless, except in the case of constitutional rights which are so basic to a fair trial that their infraction can never be treated as harmless error.

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[78 Hawai'i 117] The judgment is vacated, and the case remanded for a new trial before a different judge.

Walter J. Rodby, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Sheryl L. Cockett, Deputy Pros. Atty., on the brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

ACOBA, Judge.

Defendant Solomon Silva (Defendant) was charged with committing assault in the third degree in violation of Hawai'i Revised Statutes (HRS) § 707-712(a) (1985) on Cheryl Moriyama (Moriyama) and Douglas Dilliner (Dilliner) on January 29, 1991. Following a jury-waived trial on June 26, 1992, he was convicted of the charge involving Moriyama and sentenced to one year's probation with a $400 fine. Defendant was acquitted of the other charge. During the trial, the trial court asked 110 questions of the State's witness, Dilliner, and dissuaded Defendant from testifying in his own defense. Moriyama did not appear or testify. We hold that Defendant's constitutional and statutory rights were violated, set aside the July 31, 1992 judgment of conviction, and remand the case for a new trial before a different judge.

I.

A state criminal defendant is entitled to an impartial judge as part of the fair trial guarantee in the due process clause of the fourteenth amendment of the United States Constitution. "The [s]tate[,] of course[,] must provide a trial before an impartial judge ... [because] [w]ithout [this] basic protection[ ], a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may [then] be regarded as fundamentally fair." Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986) (citations omitted). It is well settled that, "A fair trial in a fair tribunal is a basic requirement of due process. Fairness[,] of course[,] requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Thus, " 'every procedure which would offer a possible temptation to the ... judge ... not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.' " Id. (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927)). Accord State v. Brown, 70 Haw. 459, 467, 776 P.2d 1182, 1187-88 (1989) (due process requires that a defendant charged by a judge with an indirect constructive criminal contempt for failing to appear before the court be tried for that charge before a different judge).

The Hawai'i Supreme Court has long acknowledged that an impartial judge is required to insure a fair trial. Peters v. Jamieson, 48 Haw. 247, 255, 397 P.2d 575, 582 (1964); In re Trask, 46 Haw. 404, 420, 380 P.2d 751, 760 (1963) (per curiam); Glover v. Fong, 39 Haw. 308, 316 (1952). See also Territory v. Van Culin, 36 Haw. 153, 161 (1942) (trial judge " 'should not intimate any opinion upon the facts, assume the prisoner's guilt, or use any expression calculated to prejudice the rights of either party' " (quoting Territory v. Kekipi, 24 Haw. 500, 504 (1918))). Since the due process clause in section 5, article I of the Hawai'i Constitution is identical to the due process clause in the fourteenth amendment of the United States Constitution, ¹ we hold that the right to an impartial judge also inheres in section 5 of article I of the Hawai'i Constitution. See State v. Hutch, 75 Haw. 307, 321-22, 861 P.2d 11, 19 (1993) (because the right to appear pro se under the sixth amendment of the United States Constitution is applicable to the states under the fourteenth amendment, the right is also guaranteed to defendants under the similar provision in article I, section 14 of the Hawai'i Constitution). Our state constitutional safeguards "must at least comport with

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[78 Hawai'i 118] United States Supreme Court standards." State v. Grahovac, 52 Haw. 527, 533, 480 P.2d 148, 152 (1971). Accord State v. Texeira, 50 Haw. 138, 142 n. 2, 433 P.2d 593, 597 n. 2 (1967) ("we [must] afford defendants the minimum protection required by federal interpretations of the [f]ourteenth [a]mendment to the [f]ederal [c]onstitution"). See also State v. Santiago, 53 Haw. 254, 265, 492 P.2d 657, 664 (1971).

Here, the court asked 110 questions of a prosecution witness. Undeniably, "a trial judge has the right to examine witnesses to elicit pertinent material facts not brought out by either party or to clarify testimony" as incident to his or her truth-seeking power. Hutch, 75 Haw. at 327, 861 P.2d at 21. This proposition is buttressed by Hawai'i Rules of Evidence Rule 614(b) (1985) which states that, "The court may interrogate witnesses, whether called by itself or by a party." Understandably, there may be times in a trial when seemingly relevant points are not explored by counsel and counsel's failure to do so will be frustrating to the trial court. But, there are limits to the extent to which a trial court may insert itself into the proceedings.

Accordingly, " '[t]he power or discretion of a trial judge to question a witness is not unlimited or unbounded[.]' " State v. Schutter, 60 Haw. 221, 222, 588 P.2d 428, 429 (1978) (per curiam) (quoting 81 Am.Jur.2d Witnesses § 419, at 426 (1976) (Am.Jur.)). For, " '[w]hile the mere fact that the judge examines a witness at some length is not necessarily improper, it is improper for a judge to conduct an unduly extended examination of any witness.' " Id. (quoting 81 Am.Jur. § 419, at 426-27). When the court questions witnesses in a jury trial, " 'the judge should not by ... his [or her ²] questioning indicate ... [an] opinion as to the merits of the case,' " to avoid creating jury bias for one side or the other. Id. at 222-23, 588 P.2d at 429 (quoting 81 Am.Jur. § 419, at 427). In a jury-waived trial, the particular danger of jury bias is absent and so "the judge is accorded considerably greater discretion in the questioning of witnesses in jury-waived trials[.]" Hutch, 75 Haw. at 326 n. 8, 861 P.2d at 21 n. 8.

Nevertheless, " '[t]he judge should not assume the role of an advocate for either party[.]' " Schutter, 60 Haw. at 223, 588 P.2d at 429 (quoting 81 Am.Jur. § 419, at 427) (court's examination of witness in jury-waived trial excessive). This caution is all the more important in a jury-waived trial where the court acts both as the judge of the law and as the judge of the facts. ³ When the trial judge fails to act impartially and takes on the role of the prosecutor, the resulting conviction will be reversed. Van Culin, 36 Haw. at 162-63 (defendant deprived of fair trial when judge takes on the role of prosecutor). A judge takes on the role of the prosecutor when he or she conducts a "rigorous, persistent and extensive interrogation" of a witness, eliciting testimony which "tends to discredit the theory of the defense ... with questions normally identified with a prosecutor[.]" Id. at 160.

In the present case, most of the court's questions followed the prosecutor's re-direct examination of Dilliner. The court's examination was thorough and methodical, not aimed at clarifying certain points but of confirming the necessary elements of the crime and the surrounding circumstances. It was extensive questioning of the kind that would be pursued by a prosecutor of his or her own witness. Without reproducing all of the

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[78 Hawai'i 119] court's questions, the following is especially pertinent to the charge involving Moriyama:

THE COURT: Okay. Was Cheryl Moriyama with you?

A Yes.

THE COURT: She slept over there with...