State v. Barros, No. 25032.

CourtHawaii Court of Appeals
Writing for the CourtBURNS, C.J., LIM and FOLEY, JJ.
Citation95 P.3d 14,105 Haw. 160
Decision Date02 July 2004
Docket NumberNo. 25032.
PartiesSTATE of Hawai`i, Plaintiff-Appellee, v. Lance BARROS, Defendant-Appellant.

95 P.3d 14
105 Haw.
160

STATE of Hawai`i, Plaintiff-Appellee,
v.
Lance BARROS, Defendant-Appellant

No. 25032.

Intermediate Court of Appeals of Hawai`i.

July 2, 2004.

Certiorari Denied August 9, 2004.


95 P.3d 16
Carrie Ann Y. Shirota, Deputy Public Defender, State of Hawai`i, on the briefs, for defendant-appellant

Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

95 P.3d 17
BURNS, C.J., LIM and FOLEY, JJ

Opinion of the Court by LIM, J.

Lance Barros (Barros or Defendant) appeals the March 8, 2002 judgment of the district court of the first circuit1 that convicted him of (1) violation of a temporary restraining order (TRO) against harassment issued pursuant to Hawai'i Revised Statutes (HRS) § 604-10.5 (Supp.2003);2 and (2) criminal contempt of court, in violation of HRS §§ 710-1077(1)(g) and 710-1077(3)(b) (1993).3

Barros contends:

1. The trial court committed reversible error in failing to obtain a valid waiver from Lance Barros of his fundamental right to trial by jury.
....
2. The trial court erred in failing to set forth the particular circumstances of Lance Barros' conviction for contempt of court in the judgment and in the order or warrant of commitment, as required by HRS § 710-1077(5).
....
3. The trial court erred in convicting Lance Barros because there was insufficient evidence that he violated the restraining order.
....
4. The trial court erred in convicting Lance Barros of criminal contempt of court because there was insufficient evidence that he knowingly disobeyed the injunction of the court that issued the TRO.

Opening Brief at 8-14. We agree with point 2, but not the others. Accordingly, we affirm in part and vacate in part.

I. Background.

On July 12, 2001, Barros was orally charged with violating a restraining order against harassment issued pursuant to HRS § 604-10.5. The district court referred Barros to the public defender. The district court record of this proceeding notes: "To determine waive or demand jury trial[.]" The oral charge arose out of a July 2, 2001 incident in which Barros' brother, Wyman Barros (Wyman), went to the apartment of the complainant, Tricia Soares (Soares), and confronted her despite the TRO Soares had obtained against Barros earlier that day. The TRO prohibited Barros and "any other person[s] acting on [his] behalf" from contacting, threatening, or physically harassing Soares or anyone residing at her home. The TRO similarly prohibited telephone contact with Soares and any entry or visitation of her residence, including yard and garage.

On July 18, 2001, a penal summons complaint issued against Barros, charging him with criminal contempt of court. According to the district court record, Barros was charged with petty misdemeanor contempt, a "violation of [HRS] section 710-1077(1)(G)(3) [sic]." The written charge arose out of a July 6, 2001 telephone call Barros made to Soares.

On August 14, 2001, Barros again appeared pro se in the district court. The district court record of this proceeding reflects: "Re-refer to public defender for waiver or demand jury trial." At the continued

95 P.3d 18
arraignment and plea held on August 31, 2001, the following transpired
[DEPUTY PROSECUTING ATTORNEY (DPA)]: Case C7 and 8, Lance Barros?
THE DEFENDANT: Yeah.
THE COURT: Let's take Mr. Barros. What's your name, sir?
THE DEFENDANT: Lance Barros.
THE COURT: Good morning, Mr. Barros. Looks like we sent you to the Public Defender's a couple of times. Did you go?
THE DEFENDANT: I called too late. They said — so, I gotta call today after court.
THE COURT: Mr. Barros, you have the right to a jury trial in these matters.
THE DEFENDANT: I don't want one.
THE COURT: Huh?
THE DEFENDANT: I don't want one.
THE COURT: Alright. Were you listening when I described earlier what a jury trial is?
THE DEFENDANT: Yes.
THE COURT: Do you know what a jury trial is?
THE DEFENDANT: Yes, I do.
THE COURT: Okay. You're willing to give that right up?
THE DEFENDANT: Yes, I am.
THE COURT: Alright, Mr. Barros, I'll find the waiver of jury trial. At this point, what I'll do is, I think you should talk it over with a public defender. I'll refer you one more time for the Public Defender. We'll set it for trial. Be sure you don't miss out on them cause if it comes up for trial and you haven't gone, you might not get a continuance, okay?
THE DEFENDANT: Right, thank you.
THE COURT: Alright, thank you.

Barros appeared with counsel on September 28, 2001, and trial was continued. After several more continuances, the case came on for trial on January 18, 2002.

Just before the bench trial started, the district court took care of several matters:

[DPA]: Yes, your Honor, I'd like to call Cases 4 and 5 on the criminal trial calendar, Lance Barros.
[DEPUTY PUBLIC DEFENDER (DPD)]: Good afternoon, Judge Dannenbeg, on behalf of Mr. Barros, .... Your Honor, can we waive reading of the charges and just enter a plea of guilty [sic].
THE COURT: I don't know. He was orally charged it looks like on July 12th, so let me see, penal summons complaint served, so I assume that you can now, but give me a thumbnail sketch. The contempt, number 5 is, contempt for what?
[DPA]: Number 5. Oh, that's the telephone call. Violation of the TRO, and 4 is also a violation of the same TRO.
THE COURT: But under different statutes?
[DPA]: Different circumstances.
THE COURT: Okay, alright, but different statutes?
[DPA]: Yes, your Honor.
THE COURT: Alright. And they are both misdemeanors [sic], and I assume there's been a waiver of jury trial. I'll assume it, I don't — double check it.
[DPD]: Yes, your Honor. There was a waiver on C4 on 8-31.
THE COURT: Yeah, waived.
[DPD]: C4, I mean, 8-31 there were waivers, your Honor.
THE COURT: Okay, I see, okay.
[DPD]: Thank you.
THE COURT: And your pleas to these two charges?
[DPD]: Not guilty, your Honor on both.
THE COURT: Okay, have a seat.
[DPA]: And your Honor, I believe there's a stipulation that Mr. Barros was served with the TRO on July 2nd, year 2001, at 1700 hours.
[DPD]: That's correct, your Honor. Your Honor, there is such a stipulation between the parties.
THE COURT: That's okay with you, Mr. Barros[,] they don't have to prove that they served you.
95 P.3d 19
THE DEFENDANT: Yeah, they served me.
THE COURT: Okay, I'll find the stipulation in order and okay, you may call your first witness.

Soares was the State's only witness. She remembered that on July 2, 2001, she was living in a two-story apartment building. Soares had gotten the TRO against Barros that day because, she claimed, he had "keyed my car, put paint remover on my car." At about 6:00 p.m., she saw Barros standing at the front door to her neighbor's apartment, some fifty feet away and "across the hall." The neighbor was Perry Barros (Perry), who had been married to another brother of Barros. Soares recalled, "I looked out the window and I seen him, and he walked in the house and then my neighbor called and told me to call the police, so I called the police." The following exchange ensued:

[DPA]: Q [N]ow, after you looked out the window, you called the police, correct?
A Yes.
Q What happened after that?
A I was waiting for the police and just so happened, I looked at the front door, and his brother appeared right at the front door.
Q Who's his brother?
A Wyman (spelled phonetically) Barros. So, my dad walked up behind me and said who are you, and he said why, why does it matter to you, and he just had an aggressive tone of voice telling me to —
[DPD]: Your Honor, objection, hearsay.
THE COURT: Not necessarily. We're talking about possible verbal acts here, and that's possibly admissible, so overruled at this point. What did the brother say, what's the brother's name?
THE WITNESS: Wyman Barros.
THE COURT: And what did he say?
THE WITNESS: My dad asked him who he was and he just said why does it matter to you, I'm here to see her, and he told me my brother didn't key your car, and give back keys to their house, which I didn't have, and he told me to, why did I put a restraining order on him cause he didn't do anything to me. That's when I seen him turn to, he turned to his left and he must have seen the police officer cause he just turned around and walked away.
[DPA]: Q Okay, at anytime, did Wyman — what did you say his brother's name was?
A Wyman.
Q Wyman. Did he tell you that Mr. Lance Barros sent him to get the keys?
A To get the keys, yes.
Q So, he specifically said that Lance told me to come get his, my keys?
A Yeah, get his keys, you have his keys to his room. And I said why would I have that.
Q Okay. Now, what happened after that?
A He just kept talking to me about bringing a restraining on him and about keying my car. He wasn't there for very long cause the police officer came right behind him and he left.
Q Okay. And did you see the defendant at any other time?
A No, I was making my police report.

Soares also testified that on July 6, 2001, at about midnight, she received a call on her cell phone. She noticed the number calling, 261-9595, which was the number of the Enchanted Lakes Elementary School pay phone. Barros usually used that pay phone to telephone her. "I heard Lance's voice say you fucking slut, and I said hello and then he just hung up."

On cross-examination, Soares acknowledged that, while her written statement to the police indicated the call was made at 12:11 a.m., her cell phone billing records showed no call at that exact time. Soares denied taking any personal items, such as money or keys, from Barros. On redirect examination, Soares explained that the clock she used to gauge the time of the call is usually set five minutes fast. Soares noted a 12:07 a.m. call in her cell phone records.

Barros testified in his own defense. He first explained, "how this all started." On July 1, 2001, Soares stayed overnight at his house. She had to leave before he was to wake up, so he gave her a key to deadbolt

95 P.3d 20
the door when she...

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19 practice notes
  • People v. Daniels, S095868
    • United States
    • United States State Supreme Court (California)
    • August 31, 2017
    ...self-represented defendant indicated to court he had discussed jury waiver with counsel]; State v. Barros (Ct.App. 2004) 105 Hawai'i 160, 95 P.3d 14, 22–23 [court thrice referred pro per defendant to a public defender for consultation about jury waiver].) 221 Cal.Rptr.3d 807This may be done......
  • People v. Daniels, S095868
    • United States
    • United States State Supreme Court (California)
    • August 31, 2017
    ...self-represented defendant indicated to court he had discussed jury waiver with counsel]; State v. Barros (Ct.App. 2004) 105 Hawai'i 160, 95 P.3d 14, 22–23 [court thrice referred pro per defendant to a public defender for consultation about jury waiver].) 221 Cal.Rptr.3d 807This may be done......
  • State v. Hernandez, SCWC-15-0000067
    • United States
    • Supreme Court of Hawai'i
    • December 21, 2018
    ...is the knowing, intelligent, and voluntary relinquishment of a known right." (emphasis added) ); State v. Barros, 105 Hawai‘i 160, 168, 95 P.3d 14, 22 (App. 2004) (same). Because the record lacks any indication that Hernandez knew of his "right to speak before sentence is imposed," Chow, 77......
  • State v. Gomez-Lobato, No. SCWC–11–0000338.
    • United States
    • Supreme Court of Hawai'i
    • October 30, 2013
    ...to the fact that the defendant may not understand the right to jury trial he or she is waiving. See State v. Barros, 105 Hawai‘i 160, 169, 95 P.3d 14, 24 (App.2004) ("[The defendant] has failed to direct us to any ‘salient fact’ bearing upon his ability to understand his jury waiver ... suc......
  • Request a trial to view additional results
19 cases
  • People v. Daniels, S095868
    • United States
    • United States State Supreme Court (California)
    • August 31, 2017
    ...self-represented defendant indicated to court he had discussed jury waiver with counsel]; State v. Barros (Ct.App. 2004) 105 Hawai'i 160, 95 P.3d 14, 22–23 [court thrice referred pro per defendant to a public defender for consultation about jury waiver].) 221 Cal.Rptr.3d 807This may be done......
  • People v. Daniels, S095868
    • United States
    • United States State Supreme Court (California)
    • August 31, 2017
    ...self-represented defendant indicated to court he had discussed jury waiver with counsel]; State v. Barros (Ct.App. 2004) 105 Hawai'i 160, 95 P.3d 14, 22–23 [court thrice referred pro per defendant to a public defender for consultation about jury waiver].) 221 Cal.Rptr.3d 807This may be done......
  • State v. Hernandez, SCWC-15-0000067
    • United States
    • Supreme Court of Hawai'i
    • December 21, 2018
    ...is the knowing, intelligent, and voluntary relinquishment of a known right." (emphasis added) ); State v. Barros, 105 Hawai‘i 160, 168, 95 P.3d 14, 22 (App. 2004) (same). Because the record lacks any indication that Hernandez knew of his "right to speak before sentence is imposed," Chow, 77......
  • State v. Gomez-Lobato, No. SCWC–11–0000338.
    • United States
    • Supreme Court of Hawai'i
    • October 30, 2013
    ...to the fact that the defendant may not understand the right to jury trial he or she is waiving. See State v. Barros, 105 Hawai‘i 160, 169, 95 P.3d 14, 24 (App.2004) ("[The defendant] has failed to direct us to any ‘salient fact’ bearing upon his ability to understand his jury waiver ... suc......
  • Request a trial to view additional results

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