Saturday, January 12, 2013

Jurisdictional Snits and the Right to Be at your own Trial


State v. Kaulia (January 4, 2013)
Background. Dennis Kaulia was charged with assault in the third degree. HRS § 707-712(1)(a). Kaulia demanded a jury trial, an attorney, and submitted a notice stating that Kaulia was a "foreign nation to USA and State of Hawaii as a subject of the Kingdom of Hawaii." The other document was a "Motion For Nolle Prosequi With Prejudice As to All Counts." The trial court interpreted these documents as a motion to dismiss the charge for lack of jurisdiction.
A formal motion to dismiss was later filed. Kaulia argued that the motion was based on the continuing existence of the Kingdom of Hawai'i. At the hearing, Kaulia requested an evidentiary hearing and wanted to call witnesses to establish the existence of the kingdom. The request and ultimately the motion were denied.
The prosecution filed a motion to amend the complaint to provide for only a petty misdemeanor of assault by mutual affray--an offense for which Kaulia had no right to trial by jury. The prosecution moved to remand the case back to the district court. The motion was granted and the case was remanded to district court.
Before the bench trial began, Kaulia attempted to revive his jurisdiction issue. The district court called him out of order and proceeded to trial. Before the first witness was sworn, Kaulia announced that he was walking out of the courtroom. The district court warned him that if he did that, the trial would still proceed without him. Kaulia walked out. After a recess, trail began without Kaulia. His attorney objected on the grounds that it could not proceed without him. The objection was overruled.
Trial proceeded without Kaulia. The district court found him guilty. Kaulia appealed and the ICA affirmed the conviction, but remanded for re-sentencing on other grounds. Kaulia appealed.
Criminal Jurisdiction Extends to those Claiming to be Citizens of the Hawaiian Kingdom. The HSC first took up the jurisdictional issue. The court rejected Kaulia's argument that the district court erroneously deprived him of the opportunity to present evidence establishing the illegality of the State of Hawai'i, which would have supported his argument that the district court had no jurisdiction over the case.
The "state's criminal jurisdiction encompasses all areas within the territorial boundaries of the State of Hawai'i." State v. Jim, 105 Hawai'i 319, 330, 97 P.3d 395, 406 (App. 2004); see also HRS § 701-106. The prosecution alleged that Kaulia committed a crime based on conduct that took place in Kona on the Big Island. According to the HSC, that meant that Kaulia came within the ambit of the State of Hawai'i's criminal jurisdiction. The HSC did not delve into the legality of the State and reaffirmed that "[w]hatever may be said regarding the lawfulness" of the State's admission into the Union, "the State of Hawai'i . . . is now, a lawful government." State v. Fergerstrom, 106 Hawai'i 43, 55, 101 P.3d 652, 664 (App. 2004). Relying on decisions mainly from the ICA, the HSC stated that "[i]ndividuals claiming to be citizens of the Kingdom and not the State are not exempt from application of the State's laws." Id. at 55, 101 P.3d at 664; State v. Lorenzo, 77 Hawai'i 219, 883 P.2d 641 (App. 1994); State v. French, 77 Hawai'i 22, 883 P.2d 644 (App. 1994); Nishitani v. Baker, 82 Hawai'i 291, 921 P.2d 1182 (App. 1996); State v. Lee, 90 Hawai'i 130, 976 P.2d 444 (1999).
But no Jurisdiction Because of the Right to a Jury Trial. Whenever the defendant has "the right to a trial by jury in the first instance, the district court, upon demand by the accused for a trial by jury, shall not exercise jurisdiction over the case, but shall examine and discharge or commit for trial the accused as provided by law[.]" HRS § 604-8(a). Kaulia had a right to a jury trial because he was charged with a misdemeanor. HRS §§ 707-712(2) and 706-663; HRS § 806-60 (right to jury trial extends to offense which may result in imprisonment for six months or more); State v. Kasprzycki, 64 Haw. 374, 375, 641 P.2d 978, 978-79 (1992) (no constitutional right for "petty" misdemeanors that would only result in maximum of 30 days jail).
Here, Kaulia demanded a jury trial and the district court committed the case to the circuit court. Then, the prosecution filed an amended complaint alleging only a petty misdemeanor in the circuit court and requested the case to be remanded back to the district court. The motion was granted and remanded without any waiver of the right to a jury trial. According to the HSC, because the prosecution failed to file the petty misdemeanor complaint in the district court and because Kaulia did not waive his right to a jury trial, the prior demand for a jury trial was never extinguished. Waiving the right to a jury trial must be on the record and expressly made. HRPP Rule 5(b)(3); State v. Young, 73 Haw. 217, 220, 830 P.2d 512, 514 (1992) ("waiver of right to a trial by jury cannot be presumed by a silent record"); State v. Swain, 61 Haw. 173, 175, 599 P.2d 282, 284 (1979). Thus, the district court when it was remanded did not have jurisdiction to hear the case for a petty misdemeanor of assault by mutual affray.
The Right to be Present for one's own Trial. "The defendant shall be present at the arraignment, at the time of the plea, at evidentiary pretrial hearings, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence[.]" HRPP Rule 43(a).  This right to be present at every critical stage of a criminal proceeding "is founded upon the Confrontation and Due Process clauses of both the United States and Hawai'i Constitutions." State v. Walsh, 125 Hawai'i 271, 285, 260 P.3d 350, 364 (2011). Relying on cases from other jurisdictions, the HSC noted that this right is extremely important because once it is waived, the defendant also waives the right to confront and cross-examine witnesses and the right to testify in his or her own defense. Diaz v. United States, 223 U.S. 442, 455 (1912). Even if the defendant's counsel continues the trial without the defendant, "any later challenge to a defendant's Sixth Amendment right to effective counsel is limited since a defendant who waived his right to be present during trial is unavailable to aid counsel in his representation, and cannot later claim counsel's trial strategy unreasonable." Commonwealth v. Vega, 719 A.2d 227, 231 (Pa. 1998).
According to the HSC, when Kaulia announced that he was walking out of the courtroom, he expressed an intention to waive "not only his constitutional right to be present, but also his right to confront witnesses, his right to testify in his own defense, and his right to assist his counsel in defending against the charge." These are three very important rights. The district court failed to inform Kaulia about them.
The Right to be Present at Trial Can be Waived, but After a Colloquy. The HSC next examined whether Kaulia adequately waived his rights. Looking back to Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995), the HSC noted that in the past, the best way to ensure an adequate waiver of constitutional rights is through an on-the-record colloquy with the defendant. They are required to ensure an adequate waiver of the right to testify, Id., the right to a jury trial, State v. Ibuos, 75 Haw. 118, 857 P.2d 576 (1993), the right to have guilt proven beyond a reasonable doubt (i.e. entry of guilty plea), State v. Vaitogi, 59 Haw. 592, 585 P.2d 1259 (1978), and the right to counsel. State v. Vares, 71 Haw. 617, 801 P.2d 555 (1990). Given this precedent, the HSC held that before a trial court can proceed without the defendant present, the court must conduct an on-the-record colloquy with the defendant to identify the constitutional rights being waived and ensure that the waiver of those rights are knowingly, voluntarily, and intelligently waived.
But When must it be done? The HSC next addressed when a colloquy has to be made. When a defendant is voluntarily absent from the proceedings, it may operate as a waiver of the right to be present regardless of "whether or not the defendant has been informed by the court of the obligation to remain during trial." State v. Caraballo, 62 Haw. 309, 323, 615 P.2d 91, 100 (1980). The HSC, however, held that once the court is informed of the defendant's intention to leave the courtroom, "it should seek to advise the defendant of the constitutional rights the defendant will be giving up by" leaving.
But this test fashioned by the HSC depends on the circumstances. The HSC noted that there are times when it would be difficult or even impossible for a trial court to be informed of the defendant's intention to leave. Nonetheless, when (1) the trial court is informed of the intention to leave and (2) there is an opportunity to advise the defendant, "the court should inform the defendant of the constitutional rights that will be forfeited by leaving the courtroom."
As for Kaulia, both were prongs were met. Kaulia said he was going to "walk out" of the proceedings. But it was unclear if he was going to follow through with it. He had appeared voluntarily before. Furthermore, had the district court engaged in a colloquy, then it could have had some kind of "salutary effect of persuading [Kaulia] to remain[.]" Thus, the HSC held that in these circumstances, the district court should have engaged or at least attempted to engage in an on-the-record colloquy.
. . . Other Issues. There were other issues to relating to just how clear Kaulia's mind was given the fact that he disclosed that he was on medication and on the Double Jeopardy Clause.
Historical Note. This is Justice Richard Pollack's first published opinion as an associate justice of the Hawai'i Supreme Court. Congratulations, Justice Pollack! 

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