State v. Torres

Decision Date10 April 2019
Docket NumberSCWC-16-0000673
Parties STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Rinaldo J. TORRES, Jr., Petitioner/Defendant-Appellant.
CourtHawaii Supreme Court

Emmanuel G. Guerrero, Honolulu, for petitioner

Chad M. Kumagai, for respondent

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

Under our precedents, a defendant in a criminal case relinquishes fundamental constitutional rights only when the rights are knowingly, intelligently, and voluntarily waived. To protect against the wrongful deprivation of these important rights, we require trial courts to conduct on-the-record colloquies prior to accepting such waivers, thereby ensuring that defendants understand the nature and consequences of their decisions and make their choices freely. We now reaffirm that the colloquy must be conducted so as to demonstrate that the waiver is a product of the defendant’s free will, undertaken in the absence of duress or other undue influence.

Our precedents also firmly establish that a defendant’s right to testify is of equal constitutional stature to the defendant’s corresponding right to refrain from testifying. Despite our recognition of this symmetry, our current procedures require that a trial court engage a defendant in an on-the-record colloquy only when the defendant waives the right to testify--and not when the defendant waives the reciprocal right not to testify.

We hold that, because the two constitutional rights are of equal importance, they should be afforded equal levels of protection. Accordingly, trial courts must engage the defendant in an on-the-record colloquy regarding the right to testify and to not testify when either right is waived, effectively making such a colloquy necessary in every trial. Because we apply our holding only prospectively, however, and the circumstances and strength of the evidence in this case render any error on the part of the trial court harmless beyond a reasonable doubt, we affirm the defendant’s convictions.

I. FACTS AND PROCEDURAL BACKGROUND
A. Pretrial

On August 27, 2014, a grand jury of the Circuit Court of the First Circuit (circuit court) indicted Rinaldo J. Torres, Jr. on one count of robbery in the first degree in violation of Hawaii Revised Statutes (HRS) § 708-840(1)(b)(i) and/or 708-840(1)(b)(ii)1 and one count of terroristic threatening in the first degree in violation of HRS § 707-716(1)(e).2 At his arraignment, Torres entered pleas of not guilty.

Five days before trial was scheduled to begin, Torres submitted a Waiver of Indictment/Trial by Jury form to the court. The form stated "I, the above named defendant, charged with violation of the indicated statute have been advised of my rights," and it contained a box for the waiver of the right to an indictment and a box for the waiver of the right to a jury trial. Torres checked the box that said "I waive my right to trial by jury and consent to a trial by the COURT without a jury" and signed the bottom of the form.

The trial began on March 23, 2015.3 Before opening statements, the court indicated that defense counsel had communicated Torres’s desire to waive his right to a jury trial. The circuit court engaged in the following colloquy with Torres:

THE COURT: Your lawyer has provided the Court with a waiver of trial by jury form. And it appears to have your signature. Is this your signature?
THE DEFENDANT: Yes, sir.
THE COURT: Did you go over this form with your lawyer before you signed it?
THE DEFENDANT: Yes.
THE COURT: And did you read and understand it before you signed it?
THE DEFENDANT: I believe I did. Yeah.
THE COURT: Do you have any questions about this form?
THE DEFENDANT: No.
...
THE COURT: Knowing the[ ] penalties [of robbery in the first degree and terroristic threatening in the first degree], do you still want to go by way of a bench trial? That is, a waiver of your right to a jury trial?
THE DEFENDANT: Yes. I feel that you will be fair in weighing the evidence against me. Yes, Your Honor.
THE COURT: Do you understand that you do have a right to a jury trial in this case?
THE DEFENDANT: Yes, I do. Thank you.
THE COURT: And you understand that in a jury trial, you and your lawyer may participate in selecting twelve citizens who would serve as jurors in this case and decide whether you are guilty or not guilty of these crimes?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand that you and your lawyer, or you through your lawyer, will be able to ask questions of the jurors to determine whether they can be fair and impartial? Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand that your lawyer will be given three peremptory challenges. In other words, you and your lawyer will be permitted to excuse up to three jurors, without giving any reason for it. ... Do you understand that?
THE DEFENDANT: Yes. I understand that.
THE COURT: And you understand that before you can be found guilty of these crimes, all twelve jurors must agree that you are guilty. In other words, their verdict must be unanimous.
THE DEFENDANT: Yes. I understand that.
THE COURT: And you understand that by giving up your right to a jury trial, you will be giving up all these rights?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you also understand that by giving up your right to a jury trial, I--that is the judge--will decide whether you are guilty or not guilty of these crimes?
THE DEFENDANT: Yes, Your Honor.
...
THE COURT: Do you have any questions about what I have told you?
THE DEFENDANT: No. Still we still go through the same procedures as what my defense is and all that, right?
THE COURT: Yes. We will have a trial. The only difference is between a jury--
THE DEFENDANT: We won’t have a jury.
THE COURT: Yes.
THE DEFENDANT: Okay. I understand that.
THE COURT: I will decide.
THE DEFENDANT: Right, Your Honor. Yes. I requested that.
...
THE COURT: Do you want to waive your right to a jury trial?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. The Court finds that Mr. Torres has voluntarily waived his right to a jury trial. Also have done so knowingly and intelligently.
B. Trial

Prior to trial commencing, the court did not advise Torres of his right to testify or of his right not to testify.

1. State’s Case

The State first called Satoshi Tokunaga who testified that he was visiting from Japan in the summer of 2014 when the incident with Torres occurred. He explained that on July 18, 2014, while he was sitting on a bench in the Waikiki Shopping Plaza, a stranger approached him with a gun and pointed it at his head. Tokunaga testified that the man hit him, he hit the man back, and the man unsuccessfully attempted to take his bag. During the incident, Tokunaga said, they were hitting each other and eventually the individual’s gun fell to the floor and both of them tried to grab it. Tokunaga stated that after the man retrieved the gun, the man walked toward the nearby escalator, security arrived, and the incident ended.4

Tokunaga testified that after the incident, he spoke with detectives and identified a person in a photo lineup that "show[ed] the face of the suspect" and that looked like the stranger who had approached him. Tokunaga was also shown a series of videos during his testimony that depicted the events as he had described. Tokunaga identified the person in the videos as the person that approached him. Tokunaga then made an in-court identification of Torres as the person that assaulted him.

Elliot Aki, a security guard who responded to the incident at the shopping plaza, testified that when he arrived at the scene he saw one person "breaking away" from a group of people and starting to leave. He explained that he began pursuing this person because "this individual might have been the instigator" of the incident. Aki said that the pursuit continued to the escalator and when he came close, the person "pivoted towards his right and pulled out this black object" that "looked like a firearm" and pointed it at him. Aki explained that he then turned around and ran back up the escalator and warned others in the area that the person on the escalator had a gun. Aki said that he observed the individual continue down the escalator in a rushed manner with "his hands in the air with the weapon." Aki was shown the security camera video of the incident on the escalator, and he described the events again as the video was being played.

2. Defense’s Case

Prior to Torres being called as a witness, the court did not engage in a colloquy with Torres regarding his right to testify or his right not to testify.

Torres testified that he was at the shopping plaza on July 18, 2014, and that he approached Tokunaga and offered to sell him marijuana. Torres explained that when he opened the bag of marijuana in front of Tokunaga’s face, Tokunaga grabbed him and punched him in the eye.5 After he fell to the ground and stood back up, an altercation ensued, Torres testified. Torres admitted that he had a pellet gun on the day of the incident but said that it was in his bag and he never held it in the confrontation with Tokunaga. He testified that the pellet gun likely fell out of his bag when he fell to the floor. Torres also stated that the pellet gun’s magazine, which was found on the ground at the scene, was never loaded in the pellet gun.

When security arrived, Torres testified that he picked up the pellet gun and his bag, and he walked away from the scene still holding his pellet gun at his side as he approached the escalator. Torres testified that while he was on the escalator, he tried to put the pellet gun in his pocket but it fell to the ground as he turned to look behind him. Torres acknowledged that the person in the video "look[ed] like [him]" and that he had the pellet gun out while going down the escalator, but he denied that he pointed it at anyone. After Torres’s testimony, the defense rested.

3. Verdict and Sentencing

The circuit court found Torres guilty of both counts.6 Torres was sentenced to 20 years imprisonment for...

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