State v. Ibuos, 16438

• Decision Date: 17 August 1993
• Docket Number: No. 16438,16438
• Citation: 857 P.2d 576,75 Haw. 118
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Boyflorence IBUOS, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 576

857 P.2d 576

75 Haw. 118

STATE of Hawaii, Plaintiff-Appellee, v. Boyflorence IBUOS, Defendant-Appellant.

No. 16438.

Supreme Court of Hawai'i.

Aug. 17, 1993.

Syllabus by the Court

1. Either defendant's written waiver or colloquy between the court and the defendant personally is required for the court to presume a waiver of defendant's right to trial by jury; a waiver by defense counsel on defendant's behalf is insufficient.

Emmett E. Lee Loy and Theodore Y.H. Chinn, Deputy Public Defenders, on the briefs, Honolulu, for defendant-appellant.

James B. Takayesu, Deputy Pros. Atty., County of Maui (assisting him on the brief Adriel C.S. Menor, law clerk), Wailuku, Maui, for plaintiff-appellee.

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

KLEIN, Justice.

After a bench trial, defendant-appellant Boyflorence Ibuos (Ibuos) was convicted of the offense of Abuse of a Family and Household Member in violation of Hawaii Revised Statutes (HRS) § 709-906 (1985 and Supp.1991). Ibuos's timely appeal asserts that the District Family Court of the Second Circuit improperly accepted his counsel's waiver of his right to a jury trial at the arraignment and plea hearing. The subsequent bench trial and conviction stemming from such an invalid waiver, Ibuos argues, violates his sixth amendment right to trial by jury. In addition, notwithstanding the alleged constitutional violation, Ibuos argues that insufficient evidence was presented at the bench trial to convict him of the offense, thereby precluding a second trial as a result of the double jeopardy provisions of the Hawaii and United States Constitutions. For the reasons set forth below, we vacate the trial court's judgment and remand for a new trial.

The incident prompting the charge arose out of an altercation between Ibuos and his live-in girlfriend (friend). During the course of the argument, Ibuos unplugged the house telephone in order to prevent the friend's use of the same. The friend attempted to re-plug the telephone line into the wall. In order to reach the phone jack, she apparently needed to crawl underneath a desk. While she was under the desk, Ibuos allegedly shoved the desk, causing it to impact with the friend's cheek. It was this "physical abuse" upon which the court found Ibuos guilty.

Ibuos's June 16, 1992 arraignment and plea hearing proceeded as follows:

THE CLERK: Calling FC-CR 92-0328, State of Hawaii versus Boyflorence Ibuos, arraignment and plea.

[Deputy Public Defender]: Vicky Russell on behalf of Mr. Ibuos, who is present. Record may reflect service of the complaint. He'll waive a formal reading of the charge, enter a plea of not guilty, waive jury trial[,] and request trial and pretrial date.

THE COURT: Okay, just a minute here. I better do this here on my calendar somewhere. How about Thursday, July 23rd at 8:30, courtroom 3A?

[Deputy Public Defender]: Is that Trial?

THE COURT: Yeah.

[Prosecutor]: July--

THE COURT: 23rd, 3A. And pretrial on that one would be July 14th at 8:30, 3B.

[Deputy Public Defender]: Thank you, your Honor.

Hawaii Rules of Penal Procedure (HRPP) Rule 5(b)(1) requires that "the court shall in appropriate cases inform the defendant that he has a right to jury trial in the circuit court or may elect to be tried without a jury in the district court." "Appropriate cases" arise whenever the accused has a constitutional right to a jury trial. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); State v. Swain, 61 Haw. 173, 175, 599 P.2d 282, 284 (1979); State v. Shak, 51 Haw. 612, 614, 466 P.2d 422, 424, cert. denied, 400 U.S. 930, 91 S.Ct. 191, 27 L.Ed.2d 190 (1970). In Hawaii, a statutory right to a jury trial arises whenever a criminal defendant can be imprisoned for six months or more upon conviction of the offense. HRS § 806-60. Because a person convicted of the offense of Abuse of a Family or Household Member, a misdemeanor, may be imprisoned for up to one year, (see HRS § 706-663 (Supp.1992)), the court had a duty to inform Ibuos of his right to trial by jury in order to ensure a knowing and voluntary waiver of that right. Failure to obtain a valid waiver of Ibuos's fundamental right constitutes reversible error. ¹ Swain, 61 Haw. at 176, 599 P.2d at 284.

A knowing and voluntary waiver of the right to trial by jury must come directly from a defendant, either in writing or orally. HRPP Rule 5(b)(3) ("In appropriate cases, the defendant shall be tried by jury in the circuit court unless the defendant waives in writing or orally in open court his right to trial by jury."). The necessity for colloquy between the court and a defendant is especially apparent in light of the importance we place on the personal nature of a defendant's right to a jury trial. State v. Young, 73 Haw. 217, 222, 830 P.2d 512, 515 (1992) (overruling State v. Olivera, 53 Haw. 551, 497 P.2d 1360 (1972), wherein counsel was allowed to waive client's right to jury trial in court with client present). With a silent or minimal record, the burden is upon the prosecution to prove a knowing and voluntary waiver. Wong v. Among, 52 Haw. 420, 425, 477 P.2d 630, 634 (1970) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)). However, 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. Eli v. State, 63 Haw. 474, 477, 630 P.2d 113, 116 (1981) (waived right to counsel); Reponte v. State, 57 Haw. 354, 360-61, 556 P.2d 577, 582 (1976) (defendant found to have voluntarily waived counsel and pled guilty). Because the record is silent as to any colloquy between the court and defendant, counsel's waiver of her client's right in this instance was, therefore, invalid, violating Ibuos's right to trial by jury under the sixth amendment to the United States Constitution and article I, section 14 of the Hawaii Constitution.

The prosecution's first argument is that Young is inapposite. In Young, defendant's counsel reserved defendant's right to request jury trial, as opposed to unambiguously waiving such right. We held, "[w]here the record is unclear if defendant is waiving his right to trial by jury at the time of arraignment and plea, the court should conclude that defendant is not waiving that right." 73 Haw. at 220, 830 P.2d at 514. Although the facts in Young are distinguishable in that, here, counsel clearly attempted to waive her client's right to trial by jury, we now clarify that the personal waiver requirement of Young applies to situations beyond the ambiguous waiver in Young.

The prosecution next argues that the provisions of HRS § 604-8 (1985), requiring an accused to "demand a trial by jury on the date of the arraignment or within ten days thereafter" in order to divest the district court of jurisdiction, takes precedence over HRPP Rule 5(b)(1)'s waiver requirement. We simply hold that nothing in HRS § 604-8 obviates the court's constitutional duty to inform a defendant of his or her right to a jury trial...