State v. Pomroy
| Decision Date | 31 January 2014 |
| Docket Number | No. SCWC–29688.,SCWC–29688. |
| Citation | 132 Hawai'i 85,319 P.3d 1093 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Henry POMROY, Petitioner/Defendant–Appellant. |
| Court | Hawaii Supreme Court |
Steven D. Strauss, Hilo, for petitioner.
Roland J. Talon, Honolulu, for respondent.
At issue in this appeal is whether Petitioner/Defendant–Appellant Henry Pomroy ("Pomroy") was adequately informed of his right to testify. Pomroy presents the following questions on certiorari:
We hold that the district court's right-to-testify colloquy was defective. As a result, the district court did not obtain an on-the-record waiver of the right to testify from Pomroy. Pomroy has thus proven a constitutional violation of his right to testify, and under the circumstances of this case, such violation cannot be considered harmless beyond a reasonable doubt. We further hold that the prohibition against double jeopardy does not preclude a retrial in this case, as substantial evidence supported Pomroy's conviction.
Pomroy was charged by Complaint with "intentionally, knowingly or recklessly caus[ing] bodily injury to another person, CLARK LUKENS, thereby committing the offense of Assault in the Third Degree, in violation of Section 707–712(1)(a), Hawai‘i Revised Statutes, as amended."3 He waived his right to a trial by jury.
At the bench trial,4 the district court did not conduct a Tachibana colloquy with Pomroy prior to the start of trial. The State called as its first witness Clark Lukens, the complaining witness. Lukens testified that he has required the use of crutches since 1987 due to hip dysplasia. Lukens testified that Pomroy was a fellow tenant at the Hale Moana Apartment Complex in Hilo. As to the assault in question, Lukens testified that while he was in the backyard with a landscaper and a board member of the apartment complex, Pomroy approached "screaming," in an "extremely aggravated and aggressive" manner. Pomroy bumped his chest against Lukens and accused Lukens of attempting to have Pomroy evicted from the apartment complex.
The interaction lasted five minutes, then Pomroy left, so Lukens decided to enter the elevator to return to his (Lukens') apartment. Lukens testified that after he entered the empty elevator, Pomroy suddenly appeared and forced himself into the elevator, and the door closed behind him, leaving Lukens alone in the elevator with Pomroy. During the entire ride to the seventh floor, Pomroy, who had pushed Lukens into the corner of the elevator, used his forearms and elbows to strike Lukens about 50 or 60 times in the throat, neck, and shoulders. Lukens recalled Pomroy saying "he [Pomroy] was gonna kick [Lukens'] ass, he was gonna beat the F'n shit outta [Lukens], he was gonna teach [Lukens] manners." When the elevator doors opened on the seventh floor, Pomroy "ceased the attack" and "immediately sprung back off" of Lukens. Lukens' wife was waiting for him at the elevator landing on the seventh floor and helped Lukens out. Lukens testified that he felt pain, which he described as a seven or eight on a ten-point scale, because Pomroy was a "big guy" who was hitting "with all his might," "trying to hurt [Lukens]," and hitting "[a]s hard as he could." Lukens also testified he had no injuries from that day.
The State then called Lukens' wife, Paulette Berbelis, who testified that she had been waiting outside the elevator on the seventh floor for Lukens after the landscaper had called her to ask if Lukens was okay. Berbelis heard Pomroy screaming and yelling inside the elevator. As the elevator doors opened, Berbelis saw Pomroy "jump away" from Lukens, while Lukens was "pushed against" against the elevator wall. Berbelis observed Pomroy to be "hepped up" or "aggressive," while Lukens appeared "[s]haken up quite a bit." Lukens complained to her of pain in his chest and neck.
The State then called landscaper Robert Robbins, who testified that Pomroy had been upset and yelling in the backyard about people cutting down trees. Lukens then approached Robbins and Pomroy and told Pomroy to leave Robbins alone. At that point, Pomroy and Lukens continued their conversation, with Pomroy still angry, and Lukens keeping his distance. Robbins then saw both head toward the foyer (where the elevator is located) and heard "excessive banging" coming from the elevator shaft, which he thought was
The State then called Hawai‘i County Police Department police officer Jeremy Kubojiri, who testified that he interviewed Lukens after the altercation. Kubojiri said Lukens was "shaken up" and complaining of pain in his chest. Kubojiri observed no "visible injuries" to Lukens, and Lukens refused medical assistance.
The State then called Hawai‘i County Police Department police officer Malia Bohol, who testified that she interviewed Pomroy after the altercation. Bohol testified that Pomroy told her that both he and Lukens approached Robbins, who was cutting down a tree with a chainsaw and leaving the debris in a pond. Lukens was yelling at an unknown person to turn off the chainsaw. Pomroy rode with Lukens in the elevator but did not "put his hands on Mr. Lukens in any way." Rather, Lukens told Pomroy, "Make your move." Pomroy exited the elevator and assisted a woman who had gotten locked out of her apartment.
The State then rested its case. Immediately thereafter, defense counsel stated, "We'll rest too, Your Honor." At that point, the district court and Pomroy engaged in the following colloquy:
The defense then rested.
The district court heard closing arguments then specifically found Lukens' testimony to be credible and corroborated by Berbelis' testimony. The district court stated there was no other credible evidence contradicting Lukens' and Berbelis' testimony. The district court did find bodily injury and stated it was not necessary for the State to show Lukens suffered from bruises or redness or that he required medical attention. The district court therefore found that the State had proven its case beyond a reasonable doubt.
Pomroy filed a Motion for New Trial. He argued that the district court failed to advise him of his right to testify before the start of trial. He also argued that, although the district court advised him of his right to testify immediately prior to the close of the defense's case, it did not question him enough to ensure that he adequately understood the decision not to testify.
The State opposed the Motion for New Trial, arguing that the trial transcript "indicate[d Pomroy] was informed of his right to testify or not to testify," Pomroy had a discussion with counsel after being informed of his rights, and Pomroy then elected not to testify after being informed of his rights.
The district court denied the Motion for New Trial and filed its Judgment of Conviction and Sentence, which found Pomroy guilty as charged and sentenced him to a year of probation, imprisonment of 180 days (with 90 days stayed), a $55 Crime Victim Compensation Fund fine, and a $75 Probation Fee. Pomroy timely appealed.
Before the ICA, Pomroy first argued that his conviction was supported by insufficient evidence. He argued that Lukens' testimony of being struck repeatedly about the neck, chest, and shoulders was contradicted by other testimony that there was no evidence of injury and no request for medical attention. Pomroy argued that Lukens was, therefore, not credible.
Pomroy next argued (1) that the district court did not inform him of his right to testify prior to trial; and (2) at the close of the State's case, when the district court informed Pomroy of his right to testify, the district court "failed to ensure that Mr. Pomroy adequately understood his right to testify and the possible consequences of his decision not to testify," given the "tentative nature of Mr. Pomroy's responses and his continuing apparent mistaken belief that the Court had received sufficient evidence from his side...." Pomroy argued that if the State was unable to show that the inadequate Tachibana colloquy was...
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...understood his or her rights and the protections associated with those rights, through a verbal exchange. State v. Pomroy, 132 Hawai‘i 85, 93–94, 319 P.3d 1093, 1101–02 (2014). The Circuit Court in this case properly advised Adcock of his rights both to testify and not to testify on two occ......
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...States Constitution; article I, sections 5, 10, and 14 of the Hawai‘i Constitution; and HRS § 801-2 (1993). State v. Pomroy, 132 Hawai‘i 85, 91, 319 P.3d 1093, 1099 (2014). The right not to testify is guaranteed by the Fifth Amendment and the Hawai‘i Constitution's parallel guarantee under ......
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