The Flip Side of the Tachibana Coin

State v. Torres (HSC April 10, 2019)
Background. Rinaldo Torres was indicted with robbery in the first degree and terroristic threatening in the first degree. Five days before trial, Torres submitted a form titled “Waiver of Indictment/Trial by Jury.” The form was signed by Torres and indicated a desire to waive his right to a jury trial and consent to a trial by the court without a jury. Prior to trial, the circuit court announced that Torres indicated that he wished to waive his right to a jury trial.

The circuit court questioned Torres in open court about this waiver. The judge asked if Torres signed the waiver form. Torres said he did. He asked if he went over the form with his lawyer. Yes, said Torres. He also asked if he understood the form. “I believe I did. Yeah.” The judge questioned Torres if he understood his right to a jury trial, the right to select a jury, the right to a unanimous verdict, and the right to question potential jurors. Torres said he understood. He also asked Torres if he understood that a judge and a judge alone will decide whether he was guilty or not guilty. He said he did. The judge then found that he knowingly, intelligently, and voluntarily waived his right to a jury trial.

At trial, the prosecution presented evidence that Satoshi Tokunaga was visiting Hawaii from Japan. He testified he was sitting on a bench in the Waikiki Shopping Plaza when a person approached him with a gun and pointed it at his head. The man hit him. Tokunaga hit back and the man tried to take his bag. As they hit each other, the gun fell to the floor and both tried to grab it. The man recovered the gun and walked to a nearby escalator. Security showed up and the incident was over. Tokunaga identified a person in a photo line up and identified a person in reviewing video surveillance. He later identified Torres in court as his assailant.

A security guard testified that when he arrived he saw a person “breaking away” from a group of people trying to leave. He pursued the lone person when the person pivoted and pulled out a “black object” resembling a firearm. The person pointed it at the security guard. The guard turned around and ran away to warn others that the person was armed.

Torres testified in his own defense. He was the only witness called by the defense. The court did not engage in a colloquy about his right to testify and his right not to testify. He told the judge that he was at the shopping plaza that evening. He said that he approached Tokunaga and offered to sell him marijuana. When he opened the bag of marijuana, he said that Tokunaga punched him in the eye. They fell to the ground fighting. He admitted to having a pellet gun and that it fell to the ground, but he denied pointing it at Tokunaga. When security showed up, he picked up the gun and walked away holding the gun at his side. He tried to put the gun in his pocket, but it fell to the ground again. He acknowledged that the person in the video looked like him.

The circuit court found Torres guilty as charged and sentenced him to prison for 20 years. He appealed. The ICA affirmed.

The Right to a Jury Trial. The right to a jury trial is a fundamental right that can only be waived when there is has been a knowing, intelligent, and voluntary waiver. State v. Ibuos, 75 Haw. 118, 120, 857 P.2d 576, 577 (1993); State v. Friedman, 93 Hawaii 63, 68, 996 P.2d 268, 273 (2000). Waiver passes constitutional muster when made with “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). It must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Id.

Waiving the right to a jury trial requires the court to inform the defendant “that (1) twelve members of the community compose a jury, (2) the defendant may take part in jury selection, (3) a jury verdict must be unanimous, and (4) the court alone decides guilt or innocence if the defendant waives a jury trial.” United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997); State v. Gomez-Lobato, 130 Hawaii 465, 470, 312 P.3d 897, 902 (2013) (adopting Durate-Higareda standard).

In this case, the circuit court followed the Duarte-Higareda colloquy, but did not ask Torres questions to determine if the waiver was voluntary. Torres argued that there was nothing in the colloquy showing that the waiver of the right to a jury trial was his own decision and free from duress or the influence of another person. The HSC disagreed. During the colloquy, the judge said that in a bench trial, the court—not a jury—decides guilt or innocence. Torres responded “Right, Your Honor. Yes. I requested that.” Moreover, when the court asked if he still wanted to proceed with a bench trial, Torres responded that “I feel that you will be fair in weighing the evidence against me.” Based on this, there was enough evidence in the record to show a voluntary waiver of the right to a jury trial—even though there were no specific questions about it.

The Pretrial Advisement is just an Advisement. Torres next contended that the circuit court’s failure to advise him about his right to testify and not testify prior to the start of trial required a new trial. Before trial starts, the court must “inform the defendant of his or her own personal right to testify or not to testify.”  State v. Lewis, 94 Hawaii 292, 297, 12 P.3d 1233, 1238 (2000). In this case, there was no pretrial advisement.

The failure to provide a Lewis advisement can be remedied if the trial court colloquies the defendant about the right to not testify and remain silent before the defendant takes the stand. State v. Monteil, 134 Hawaii 361, 372, 341 P.3d 567, 578 (2014). That didn’t happen either. And so at no point did the court inform and advise the defendant that he had the right to avoid the witness stand and not testify.

The error, however, was harmless. An error is harmless when there is no “reasonable possibility that the error might have contributed to the conviction.” State v. Eduwensuyi, 141 Hawaii 328, 336, 409 P.3d 732, 740 (2018). This requires an assessment of the strength of the prosecution’s case. State v. Tetu, 139 Hawaii 207, 226, 386 P.3d 844, 863 (2016). Here, the HSC held that even if Torres did not testify the prosecution had a strong case and the error in failing to inform and advise Torres about his right to remain silent did not contribute to his conviction. The HSC affirmed the conviction.

A new Colloquy to Determine a Waiver of the Right to NOT Testify is Required from now on. The HSC went on to fashion a new rule that would apply prospectively. The criminal defendant “has an absolute right not to testify.” Salinas v. Texas, 570 U.S. 178, 184 (2013). It is a right in Hawaii stemming back to eighteenth century. The King v. McGriffin, 7 Haw. 104, 133 (Haw. Kingdom 1887). It is a right guaranteed in the Fifth and Fourteenth Amendments to the United States Constitution and in Article I, Section 10 of the Hawaii Constitution.

But under our current criminal procedures at trial, the HSC noted that when the defendant choses that he or she will not testify, the court must engage in a colloquy to ensure that this choice was made voluntarily, knowingly, and intelligently. Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293, 1303 (1995). The HSC reasoned that the right to avoid the stand and remain silent at trial is just as fundamental as the right to take the stand. Thus, equal procedural treatment is required. Trial courts must now engage in an on-the-record colloquy with the defendant when the defendant chooses to testify “to ensure that a waiver of the right not to testify is knowing, intelligent, and voluntary.”

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