State v. Lewis, No. 22901.

• Court: Court of Appeals of Hawai'i
• Writing for the Court: BURNS, C.J., and WATANABE, J., and LIM, J., dissenting.
• Citation: 94 Haw. 309,12 P.3d 1250
• Decision Date: 25 September 2000
• Docket Number: No. 22901.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Sky LEWIS, Defendant-Appellant.

12 P.3d 1250
94 Haw. 309

STATE of Hawai`i, Plaintiff-Appellee,
v.
Sky LEWIS, Defendant-Appellant

No. 22901.

Intermediate Court of Appeals of Hawai'i.

September 25, 2000.

Certiorari Granted November 8, 2000.

12 P.3d 1251

Mimi DesJardins, on the briefs, for Defendant-Appellant

Benjamin M. Acob, Deputy Prosecuting Attorney, County of Maui, on the briefs, for Plaintiff-Appellee.

BURNS, C.J., and WATANABE, J., and LIM, J., dissenting.

Opinion of the Court by BURNS, C.J.

Defendant-Appellant Sky Lewis (Lewis) appeals the family court's September 14, 1999 Judgment of Probation finding him guilty of Abuse of a Family or Household Member, Hawai`i Revised Statutes § 709-906, and sentencing him to (1) probation for one year, subject to terms and conditions, including ten days in jail, eight of which were suspended, and to pay restitution; and (2) ordering him to pay $50 to the Criminal Injuries Compensation Fund. We affirm.

BACKGROUND

At a bench trial, Plaintiff-Appellee State of Hawaii (State) called the alleged victim to testify and then rested. Lewis called a police officer and himself to testify and then rested. The State then called the alleged victim to testify in rebuttal solely with respect to the tape of his call to 911.

The alleged victim testified that on June 28, 1999, Lewis physically hit him more than once without provocation. In contrast, Lewis testified in relevant part as follows:

A. I punched him to defend myself.

Q. And, where did you punch him?

A. In the face and hit his lip.

Q. Did you hit him or strike him anywhere else in the face?

A. No.

Q. Did you strike him more than once?

A. No.

With respect to the alleged victim's call to 911, Lewis testified in relevant part as follows:

Q. Did [the alleged victim] voluntarily hang up the phone or did you hang up the phone?

A. I was in the bedroom, [the alleged victim] was in the kitchen. I hung up my end of the phone. I can't hang up the phone call that he was going on in the kitchen. I don't understand.

Q. So you were on the phone with 911 too?

A. I picked up the phone.

Q. Oh. And you were speaking to 911?

A. Yes.

In rebuttal, after the 911 tape was played, the alleged victim testified in relevant part as follows:

Q. At the end of the tape when . . . you're speaking with the 911 operator and there are still noises, can you explain to the Court what was happening at that point?

A. [Lewis] ripped the phone out of my hand and pushed me and hung up the phone.

RELEVANT PRECEDENT

The Hawai`i Supreme Court's opinion in Tachibana v. State, 79 Hawai`i 226, 900 P.2d 1293 (1995), requires that before the defendant waives his or her constitutional right to testify, the trial court must conduct a colloquy with the defendant and obtain the defendant's on-the-record voluntary, knowing, and intelligent waiver of that right (Tachibana Requirement).

POINT ON APPEAL

Lewis contends that "[t]he trial court committed plain error when it failed to engage LEWIS in an on-the-record colloquy with respect to whether he knowingly, intelligently and voluntarily waived his right not to testify at his trial." (Emphasis in original.)

DISCUSSION

A defendant in a criminal case has certain rights unless he or she decides to waive them. In Hawai`i, before a defendant waives certain rights, the trial court must conduct a colloquy to insure that the waiver is made voluntarily, knowingly, and intelligently. Examples are:

12 P.3d 1252

1. Right to testify (Tachibana, supra)

2. Right to an included offense instruction (State v. Kupau, 76 Hawaii 387, 395-96 n.13, 879 P.2d 492, 500-01 n.13 (1994)).

3. Right to trial by jury (State v. Young, 73 Haw. 217, 220-21, 830 P.2d 512, 514 (1992); and State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993)).

4. Right to counsel (State v. Vares, 71 Haw. 617, 622-23, 801 P.2d 555, 558 (1990); State v. Hoey, 77 Hawaii 17, 33, 881 P.2d 504, 520 (1994); and State v. Merino, 81 Hawaii 198, 219, 915 P.2d 672, 693 (1996)).

5. Rights lost by pleading guilty or nolo contendere (Hawaii Rules of Penal Procedure Rule 11; Conner v. State, 9 Haw.App. 122, 126, 826 P.2d 440, 442 (1992)).

The primary reason for the pre-waiver colloquy requirement is the difficulty in determining at a post-conviction relief hearing whether such a waiver occurred and the resulting waste of judicial resources. Tachibana, 79 Hawaii at 234, 900 P.2d at 1301.

The United States Constitution affords a Fifth Amendment right not to "be compelled in any Criminal Case to be a witness against himself[.]" Similarly, the Hawaii Constitution, affords an Article I, Section 10, right not to "be compelled in any criminal case to be a witness against oneself." In other words, both constitutions assure a defendant in a criminal case the right to remain silent.

In Tachibana, the defendant did not testify. He waived his right to testify, not his right to remain silent. The Hawaii Supreme Court ruled in relevant part as follows:

[A defendant's] right to testify in his [or her] own defense is guaranteed by the constitutions of the United States and Hawaii [Hawaii] and by a Hawaii [Hawaii] statute.

. . . .

State v. Silva, 78 Hawaii [Hawaii] 115, 122-23, 890 P.2d 702, 709-10 (App. 1995) . . . .

. . . [I]n order to protect the right to testify under the Hawaii [Hawaii] 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.7 . . .

. . . .

. . . [T]he ideal time to conduct the colloquy is immediately prior to the close of the defendant's case. Therefore, whenever, [sic] possible, the trial court should conduct the colloquy at that time.9

7 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 at 514).

9 Of course, the trial court judge cannot independently foresee when the defense is on the verge of resting...