A Tachibana Colloquy is not Reciting “a Litany of Rights”

State v. Pomroy (HSC January 31, 2014)
Background. Henry Pomroy was charged with a single count of assault in the third degree. He waived his right to a trial by jury. On the day of trial, the district court did not conduct a colloquy with Pomroy about his right to testify or not testify before trial began. At trial, the complainant, Clark Lukens, testified that Pomroy was his neighbor at the Hale Moana Apartment Complex in Hilo. While he was in the backyard, Pomroy approached him and was screaming. Pomroy accused Lukens of trying to get Pomroy evicted. After five minutes of this, Pomroy left. Lukens then went into an elevator and then Pomroy suddenly appeared out of nowhere. Pomroy went into the elevator with him and the doors closed. According to Lukens, Pomroy shoved, pushed, and elbowed him several times. When the doors opened, Pomroy stopped the attack and left. He said that he had been hit very hard and was in extreme pain, but admitted that he suffered no injuries. None of the other witnesses testified about visible injuries. After the prosecution rested, Pomroy’s counsel said, “we’ll rest too, Your Honor.”

The district court (Judge Barbara Takase) addressed Pomroy. The court told Pomroy that he had the right to testify and that “decision is yours and yours alone. If you choose to testify you will be subject to cross-examination by the state. If you choose not to testify, I cannot hold that against you. But the only evidence I will have is what the State has presented, unless you have other witnesses; you understand that?” Pomroy replied, “Yes, ma’am.” Then this happened:

THE COURT: Alright. Is it your choice to testify or not?
THE DEFENDANT: I think I have already said what has happened, yeah. I don’t have to testify.
THE COURT: Alright. I don’t know what you mean by “I’ve already said” because—
THE DEFENDANT: In my report, when I made it two years ago, what had happened. That’s pretty much what it is.
THE COURT: So you’re talking about what the officer testified to? Because you understand the police report is not in evidence. You understand that?
THE DEFENDANT: I don’t understand what you’re saying.
(Discussion between Counsel and Defendant)
THE COURT: Alright.
THE DEFENDANT: I don’t need any testimony I guess.
THE COURT: Your choice not to testify?
THE DEFENDANT: Yes, ma’am.

The defense rested (again) and the district court found Pomroy guilty as charged. Pomroy filed a motion for new trial alleging that the district court failed to inform him about his right to testify before trial began and that the colloquy was insufficient to ensure a knowing, intelligent, and voluntary understanding of the right to testify before resting. The motion was denied and Pomroy was sentenced to 6 months jail (with 90 days stayed). Pomroy appealed and the ICA affirmed (Nakamura, Foley, and Fujise). Then he petitioned for cert.

The Right to Testify and Ensuring that you Know About it. “In the trial of any person on the charge of any offense, he shall have a right . . . to be heard in his defense.” State v. Tachibana, 79 Hawaii 226, 231-32, 900 P.2d 1293, 1298-99 (1995). In order to protect this right, “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.” Id. at 236, 900 P.2d at 1303. The actually colloquy must include informing the defendant of (1) the right to testify, (2) that if he or she wishes to testify, no one can prevent the person from doing so, (3) if the person testifies, he or she will be subjected to cross-examination by the prosecution, and (4) the defendant does not have to testify and if he or she does not, a jury would be instructed about that right. Id. at 236 n. 7, 900 P.2d at 1303 n. 7. The “ideal time to conduct the colloquy is immediately prior to the close of the defendant’s case.” Id. at 237, 900 P.2d at 1304.

In addition to this colloquy, the HSC has required a similar colloquy at the start of trial. State v. Lewis, 94 Hawaii 292, 12 P.3d 1233 (2000). The requirement, however, is not as strong as the one before the defense rests. The failure to give a pre-trial colloquy requires additional proof of “actual prejudice” before it arises to reversible error. Id. at 297, 12 P.3d at 1238.

The Colloquy at the End of Trial was Defective. Here, the HSC held that the colloquy at the end of the trial was insufficient. The HSC held that the district court failed to advise Pomroy that he had the right not to testify and that no one can prevent him from testifying. Moreover, the HSC held that this was not a “true colloquy.” A colloquy is an “oral exchange” where the “judge ascertains the defendant’s understanding of the proceedings and of the defendant’s rights.” State v. Han, 130 Hawaii 83, 135, 306 P.3d 128, 90 (2013).

That did not happen here. The district court did nothing more than recite “a litany of rights” and ask if Pomroy understood that litany. There was no engagement to ensure the Pomroy understood his rights. It became even more evident that Pomroy did not understand because he told the district court that he felt he said what he needed to say in some police report that was never admitted into evidence. And even after it was explained to him that that statement was not in evidence, there was no engagement to ensure that he understood the rights that the district court had recited. Thus, the conviction was vacated and remanded for new  trial.

Ensuring an Engagement. This is a tough one. In Han and here, the trial courts did not go through each right and ask the defendant after reciting each right if he or she understood. Would that have made the difference? Why? How would that be any different? How does that show engagement? What if instead of saying “that” the district court said, “do you understand all of these rights?” It certainly would still be a “litany of rights.” Would it have made a difference at all?

Chief Justice Recktenwald’s Dissent. The Chief Justice believed that the record showed an adequate waiver of the right to testify at trial. The district court, he believed, is in the best position to evaluate not only the words coming out of Pomroy’s mouth, but his demeanor and the inflection in his voice. There is nothing in the record that would assume the district court ignored any uncertainties on display in the district court. Justice Nakayama joined.


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