State v. Lewis, No. 22901.

• Court: Supreme Court of Hawai'i
• Writing for the Court: MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.
• Citation: 12 P.3d 1233,94 Haw. 292
• Parties: STATE of Hawai`i, Respondent-Appellee, v. Sky LEWIS, Petitioner-Appellant.
• Docket Number: No. 22901.
• Decision Date: 28 November 2000

12 P.3d 1233
94 Haw. 292

STATE of Hawai`i, Respondent-Appellee,
v.
Sky LEWIS, Petitioner-Appellant

No. 22901.

Supreme Court of Hawaii.

November 28, 2000.

12 P.3d 1234

Mimi Desjardins, on the application, for petitioner-appellant

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We affirm the result reached by a majority of the Intermediate Court of Appeals (the ICA), 94 Hawai`i 309, 12 P.3d 1250, affirming the September 14, 1999 judgment of probation filed by the family court of the second circuit (the court), against Petitioner-Appellant Sky Lewis (Petitioner). However, we granted Petitioner's application for writ of certiorari to clarify the applicability of the colloquy requirement detailed in footnote 7 of Tachibana v. State, 79 Hawai`i 226, 900 P.2d 1293 (1995), and the suggested prior-to-start-of-trial advisement highlighted in footnote 9 of that case, to a defendant who exercises his or her right to testify at trial.

I.

In Tachibana, the circuit court had granted a petition for post-conviction relief on the ground that Tachibana's attorney had "prevented [him] from testifying in his own behalf in violation of Tachibana's constitutional right to testify[.]" Id. at 230, 900 P.2d at 1297. On appeal, a majority of this court confirmed that a defendant's right to testify was constitutionally guaranteed and a necessary corollary of the right against self-incrimination:

"A defendant's right to testify in his or her own defense is guaranteed by the constitutions of the United States and Hawai`i and by a Hawai`i statute.

. . . .

[T]he opportunity to testify is also a necessary corollary to the Fifth Amendment's guarantee against compelled testimony, since every criminal defendant is privileged to testify in his or her own defense, or to refuse to do so."

Id. at 231, 900 P.2d at 1298 (quoting State v. Silva, 78 Hawai`i 115, 122-23, 890 P.2d 702, 709-10 (App.1995) (citations, quotation marks, footnote, and emphases omitted)) (brackets omitted). The majority recognized that a defendant's constitutional right to testify was a personal one, the decision to testify "is ultimately committed to a defendant's own discretion," Silva, 78 Hawai`i at 124, 890 P.2d at 711, and, thus, the right "may be relinquished only by the defendant." Id. at 123, 890 P.2d at 710 (internal quotation marks and citation omitted); Tachibana, 79 Hawai`i at 232, 900 P.2d at 1299.

To protect each defendant's personal right to testify while maintaining the integrity of the criminal justice system, the majority adopted "the colloquy approach," in which, "`if the defense rests without calling the defendant, the trial judge, as a matter of routine, conducts an inquiry outside the jury's presence'" "`with the defendant to ensure that she or he has knowingly waived her or his right to testify.'" Id. at 233, 900 P.2d at 1300 (quoting Boyd v. United States, 586 A.2d 670, 675 (D.C.App.1991)) (brackets omitted). Accordingly, Tachibana held that, "in order to protect the right to testify under the Hawai`i Constitution, 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."¹ Id. at 236, 900 P.2d at 1303 (footnotes omitted). Footnote 7 to the foregoing passage described the "ultimate colloquy," id. at 237 n.9, 900 P.2d at 1304 n.9, to be engaged in by the trial courts:

"In conducting the colloquy, the trial court must be careful not to influence the defendant's decision whether or not to testify

12 P.3d 1235

and should limit the colloquy to advising the defendant that he or she has a right to testify, that if he or she wants to testify that no one can prevent him or her from doing so, and that if he or she testifies the prosecution will be allowed to cross-examine him or her. In connection with the privilege against self-incrimination, the defendant should also be advised that he or she has a right not to testify and that if he or she does not testify then the jury can be instructed about that right." State v. Neuman, 179 W.Va. 580, 585, 371 S.E.2d 77, 82 (1988) (quoting People v. Curtis, 681 P.2d [504,] 514 [(Colo.1984)].

Id. at 236 n. 7, 900 P.2d at 1303 n. 7 (brackets omitted). In footnote 9 of Tachibana, this court indicated "it . . . behoove[d]" trial courts to notify a defendant "prior to the start of trial" that a defendant had the right to testify and the right not to testify. Id. at 237 n. 9, 900 P.2d at 1303 n. 9.

II.

In the instant case, Petitioner testified at his jury-waived trial on the charge of abuse of a family or household member, Hawai`i Revised Statutes § 709-906 (Supp.1999). Neither the start-of-trial advisement set out in footnote 9 nor the colloquy described in footnote 7 took place. On September 14, 1999, Petitioner was found guilty as charged. A judgment of probation was filed on that day. On October 12, 1999, Petitioner filed a notice of appeal. On appeal, he complained of plain error premised on the court's failure, prior to his testimony, to engage him in an on-the-record colloquy referred to in Tachibana. Relying on footnote 7 of Tachibana, Petitioner maintained that the court was required to obtain a waiver of his right against self-incrimination prior to his testimony.

On appeal, 94 Hawai`i 309, 12 P.3d 1250, the ICA majority (Chief Judge Burns, joined by Judge Watanabe) decided that the Tachibana colloquy was not required in "pre-testimony" situations because "[t]he words `should also be advised,'" in reference to the "right not to testify" in footnote 7 "do not mandate a colloquy . . . in light of the use of the [contrasting] words `must conduct a colloquy'" used in reference to the "right to testify." State v. Lewis at 313, 12 P.3d at 1254 (App.2000) [hereinafter, the "ICA's majority opinion"]. For further support, the ICA majority maintained the words "any inadvertent effect," as they applied to the "right not to testify" in footnote 9, "implies a significantly lesser concern for the defendant's right to testify." Id. Noting that Petitioner "has not stated how his testimony harmed his case and there is no indication in the record that it was harmful to his case," id. at 313, 12 P.3d at 1254, the ICA majority concluded that "the record shows a harmless error rather than a plain error." Id. In his dissent, Judge Lim stated that he "would require a `Tachibana colloquy' where the defendant chooses to testify, as well as where the defendant chooses not to testify[,]" dissenting opinion at 314, 12 P.3d at 1255, because there is "no real way of knowing the result had [Petitioner] chosen to remain silent as a...