State v. Lewis

• Decision Date: 28 November 2000
• Docket Number: No. 22901.,22901.
• Citation: 12 P.3d 1233,94 Haw. 292
• Parties: STATE of Hawai`i, Respondent-Appellee, v. Sky LEWIS, Petitioner-Appellant.
• Court: Hawaii Supreme Court

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.

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 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 result of a personal colloquy[.]" Id. at 314, 12 P.3d at 1255.

In his application, Petitioner asserts that the ICA majority "appears to concede, on the one hand, that some error took place when the trial court failed to conduct the on-the-record colloquy even though the ICA clearly held the colloquy was not required[,]" leaving it "impossible to tell from the Opinion whether, as a matter of law, failure to conduct a pre-testimony (and hence discretionary according to the ICA) colloquy will constitute error or not."²

We hold that Tachibana does not require the "colloquy" described in footnote 7 in the situation where a defendant has decided to testify; thus, no error was committed by the court in not engaging Petitioner in that dialogue prior to his testimony. Accordingly, a fortiori, there was no plain error and no occasion to apply the doctrine of harmless error. We acknowledge that the prior-to-start-of-trial advisement referred to in footnote 9 was not mandated by Tachibana but conclude now that it should be, to minimize the scope of any post-conviction claim by a testifying defendant that he or she was not aware of his or her right not to testify.

III.

In adopting the colloquy approach in Tachibana, this court's majority rejected both the "demand" rule, under which "`a defendant who fails to complain about the right to testify during trial is conclusively presumed to have waived that right[,]'" 79 Hawai`i at 233, 900 P.2d at 1300 (quoting Boyd, 586 A.2d at 676), and the post-trial challenge approach where "`a trial judge need not sua sponte question the defendant during the trial, but the defendant is free to bring a post-conviction challenge based on a denial of the right to testify.'" Id. (quoting Boyd, 586 A.2d at 677). Of significance in the rejection of the post-conviction approach was the majority's concern that the determination of "whether a particular defendant actually waived his or her right to testify based on evidence presented in a post-conviction proceeding can be an almost impossible task." Id. at 234, 900 P.2d at 1301. Thus, it was pointed out that an advantage of the colloquy approach was that "a trial judge would establish a record that would effectively settle the right-to-testify issues in the case, and thereby relieve the trial judge [and the appellate court] of extended post-conviction proceedings." Id. The risk that in "`advising the defendant of his or her right to testify, the court could influence the defendant to waive his or her right not to testify, thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right[,]'" was acknowledged. Id. at 235, 900 P.2d at 1302 (quoting United States v. Martinez, 883 F.2d 750, 760 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.), cert. denied, 501 U.S. 1249, 111 S.Ct. 2886, 115 L.Ed.2d 1052 (1991) (citation and quotation marks omitted) (emphases in original)) (brackets omitted). However, that risk was perceived as minimal because "`[a]n adequate inquiry would remind the defendant that he or she ha[d] the constitutional right to remain silent[.]'" Id. (quoting Martinez, 883 F.2d at 767 (Reinhardt, J., dissenting) (footnote omitted)) (brackets omitted).

By establishing the colloquy, then, the majority sought to preclude the circumstances in T...