State v. Adcock
| Decision Date | 24 August 2020 |
| Docket Number | NO. CAAP-19-0000508,CAAP-19-0000508 |
| Citation | 473 P.3d 769 |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Brian D. ADCOCK, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Benjamin E. Lowenthal, Deputy Public Defender, for Defendant-Appellant.
Richard B. Rost, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
Defendant-Appellant Brian D. Adcock (Adcock) appeals from the May 31, 2019 Judgment; Conviction and Sentence; Notice of Entry (Judgment) entered by the Circuit Court of the Second Circuit (Circuit Court).1 We hold that the Circuit Court did not err in determining that Adcock validly waived his right to testify and that any error by the Circuit Court in failing to obtain a verbal confirmation of Adcock's understanding of his right not to testify was harmless. We further hold that the Crime Victim Compensation (CVC) fee and Internet Crimes Against Children (ICAC) fee do not amount to unconstitutional taxes and the Circuit Court did not abuse its discretion in imposing the fees against Adcock. However, we conclude that the Circuit Court erred in failing to instruct the jury on merger. For that reason, we vacate the Judgment and remand for further proceedings consistent with this opinion.
On October 15, 2018, Adcock was charged with two counts of Terroristic Threatening in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-716(1)(e) (2014).2 In both counts, it was alleged that on October 10, 2018, Adcock threatened Bert Kamaka (Kamaka) and/or Billy Tagay (Tagay) with a knife. Count 1 further alleged that Adcock acted with the intent to terrorize, or in reckless disregard of the risk of terrorizing Kamaka. Count 2 alleged that Adcock acted with the intent to terrorize, or in reckless disregard of the risk of terrorizing Tagay.
During the jury trial, Kamaka testified that on the morning of October 10, 2018, he arrived at Kalama Park with his janitorial crew, which included Tagay, to clean the restrooms. Kamaka and Tagay testified that they noticed Adcock pacing back and forth about twenty feet from their location, making stabbing-type motions with a kitchen knife. Kamaka testified that Adcock then approached them and said "I'm going to stab you mother fuckers," while continuing to make the stabbing-type motions with the knife.
On February 7, 2019, after the State rested its case, the Circuit Court initiated the following Tachibana 3 colloquy with Adcock:
The next morning, on February 8, 2019, Adcock's counsel informed the Circuit Court that Adcock would no longer be testifying and wanted the Circuit Court to re- Tachibana him. The Circuit Court engaged Adcock in the following colloquy:
The defense then rested without calling any witnesses or presenting any evidence.
During the settling of jury instructions, Adcock's counsel argued: The Circuit Court refused to provide the instruction. The jury ultimately found Adcock guilty as charged for both counts of Terroristic Threatening in the First Degree.
The Circuit Court entered its Judgment on May 31, 2019,5 sentencing Adcock on each count to five years in prison, to be served concurrently, with credit for time served, and ordered him to pay a $105 CVC fee and a $100 ICAC fee, for a total of $410. On the same day, Adcock moved to strike the imposition of the fees as being unconstitutional taxes. The Circuit Court denied Adcock's motion to strike the imposition of the fees on June 26, 2019.
On appeal, Adcock raises three points of error, contending that the Circuit Court erred by: (1) failing to conduct a "true colloquy" with him about his constitutional right to testify; (2) not providing the jury with a merger instruction under HRS § 701-109(1)(e) (2014); and (3) levying the $410.00 in fees, which he asserts "[wa]s an [u]nconstitutional [d]elegation of the [l]egislature's [t]axation [p]ower[.]"
We review whether a criminal defendant knowingly, intelligently, and voluntarily waived his or her right to testify under the right/wrong standard. State v. Eduwensuyi, 141 Hawai‘i 328, 332-33, 409 P.3d 732, 736-37 (2018).
State v. Matuu, 144 Hawai‘i 510, 516, 445 P.3d 91, 97 (2019) (quoting State v. Kassebeer, 118 Hawai‘i 493, 504, 193 P.3d 409, 420 (2008) ).
[T]he constitutionality of a statute is a question of law which is reviewable under the right/wrong standard. Additionally, where it is alleged that the legislature has acted unconstitutionally, this court has consistently held that every enactment of the legislature is presumptively constitutional, and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt. The infraction should be plain, clear, manifest, and unmistakable.
State v. Calaycay, 145 Hawai‘i 186, 197, 449 P.3d 1184, 1195 (2019) (quoting State v. Gaylord, 78 Hawai‘i 127, 137, 890 P.2d 1167, 1177 (1995) ).
Adcock first alleges that the Circuit Court failed to engage in a "true colloquy" with him prior to the waiving of his right to testify at trial.
Under Tachibana v. State, "trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify." 79 Hawai‘i at 236, 900 P.2d at 1303. This colloquy is also required where the defendant does testify, "effectively making such a colloquy necessary in every trial." State v. Torres, 144 Hawai‘i 282, 285, 439 P.3d 234, 237 (2019).
A Tachibana colloquy has two components: an apprisal of the "fundamental principles pertaining to the right to testify and the right not to testify[,]" State v. Celestine, 142 Hawai‘i 165, 170, 415 P.3d 907, 912 (2018) (citing Tachibana, 79 Hawai‘i at 236 n.7, 900 P.2d at 1303 n.7 ), and "a verbal exchange between the judge and the defendant ‘in which the judge ascertains the defendant's understanding of the proceedings and of the...
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...ICA found that the CVC fee and DDR assessment were constitutional criminal fines, citing its decision in State v. Adcock, 148 Hawai‘i 308, 320–21, 473 P.3d 769, 781–82 (App. 2020), where it held that "the CVC fee is a fine, not a tax," because (1) "it is a penalty imposed after a criminal c......
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