Putting Teeth in the Right to (Retained) Counsel

State v. Cramer (HSC April 29, 2013)

Background. Stephen Cramer was charged with up to seven drug-related offenses and entered the Maui Drug Court Program. He participated in the program for about 18 months before the prosecution filed a motion to terminate him. The circuit court granted the motion and terminated Cramer from the program. At a “stipulated-facts” trial, the prosecution presented an admission to the offenses from Cramer’s petition into the program. Cramer was found guilty.

At the sentencing hearing, Hayden Aluli appeared for Cramer on the condition that he be “given the opportunity to effectively prepare.” Aluli asked for a three-week continuance. The prosecutor was ready for sentencing. The motion for continuance was denied because the requests were untimely. Aluli did not enter his appearance and Cramer remained with the public defender. The public defender asked the circuit court if it had received a substance abuse assessment. The court had not and wanted to review it to determine if he was eligible for sentencing under HRS § 706-622.5. The prosecution requested a continuance and the circuit court agreed thereby continuing the hearing.

At the next hearing, the court sentenced Cramer to five years prison. Aluli appeared as appellate counsel and the ICA affirmed. Cramer petitioned to the HSC.

The Right to Counsel (of Choice). “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for the accused’s defense.” Haw. Const. Art. I, Sec. 14. U. S. Const. Am. VI. Under the state constitutional provision, this encompasses “a right to privately retained counsel of choice.” State v. Maddagan, 95 Hawaii 177, 180, 19 P.3d 1289, 1292 (2001). This right, however, “is qualified and can be outweighed by countervailing governmental interests.” Id.

The HSC examined for the first time those government interests. The HSC noted that in other jurisdictions, the decision to allow substitute counsel and a continuance turns on several factors. People v. Butcher, 79 Cal. Rptr. 618, 621 (Cal. Ct. App. 1969) (seven factors must be balanced to determine motions for substitute counsel and continuance on day of trial); see also State v. Prineas, 766 N.W.2d 206, 215 (Wisc. Ct. App. 2009) (trial court considered factors in determining defendant’s request for new counsel against “the public interests in the prompt and efficient administration of justice.”).

Here, the circuit court failed to consider any factors other than timeliness. There was no consideration of the length of the delay requested, the impact the delay would have on the prosecution, witnesses, or the court, or whether the delay was for a dilatory purpose. The prosecution did not object to the initial request for substitute counsel and there was no evidence in the record of any prejudice for a substitution and continuance. Nor was there any evidence that any witnesses, parties, or the court would be inconvenienced by the continuance. Thus, the HSC held that the denial of the continuance was an abuse of discretion. The HSC vacated the judgment and remanded for resentencing.

Justice Acoba’s Concurrence. Justice Acoba wrote separately to discuss in great detail that some constitutional violations are so fundamental that they can never be considered harmless. This is one of those cases. Justice Acoba wrote that once the right to retained counsel has been “wrongfully denied, a defendant need not show prejudice or prove the underlying value of such a choice.” Thus, the vacating and remanding of the judgment should have been automatic and the harmless-error analysis was unnecessary. Justice Pollack joined.

A Harmless-Error Analysis? The majority did not apply a harmless-error analysis. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the SCOTUS held that denial of the right to counsel of choice is one of those errors that is not subject to the harmless-error analysis. “It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.” Id. This was a similar situation for Cramer. In a footnote, the majority declined to review and take on the problems associated with the application of the harmless-error analysis. Curiously, Justice Pollack joined the majority opinion too.

How to Dismiss With (or Without) Prejudice

State v. Hern & State v. Ledbetter (ICA March 27, 2013)

Background. In January, Dennis Hern was charged with driving under the influence of an intoxicant. Hern filed a series of pretrial motions including a motion to compel discovery and a motion to dismiss for lack of jurisdiction. At a hearing, the motion to compel was granted and the motion to dismiss was denied. In August, Hern filed a motion to dismiss for violation of speedy trial rights and a violation of HRPP Rule 48. The district court found a rule 48 violation and dismissed the case without prejudice. Hern moved to reconsider the dismissal without prejudice.

Joseph Ledbetter was also charged with DUI. Ledbetter filed four motions to compel discovery. At a hearing before the district court, the prosecution said it was ready for trial. Ledbetter said he had not received discovery. The trial was continue with time charged against the prosecution. At a hearing nearly two months later, the prosecution served Ledbetter with a memorandum in opposition to the motions to compel. The district court denied the motions and set the case for trial. Ledbetter moved to dismiss the case for violation of speedy trial and HRPP Rule 48. At trial call, the prosecution was not ready because two officers were sick and opposed the motion o dismiss. The district court, without explaining why, granted the motion and dismissed the case without prejudice. The prosecution appealed both cases and they were consolidated into one appeal.

HRPP Rule 48 and the Difference Between DWIPing or DWOPing. “Except in the case of traffic offenses that are not punishable by imprisonment, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within six months . . . from the date of arrest if bail is set or from the filing of the charge, whichever is sooner[.]” HRPP Rule 48(b)(1). The rule does not provide any guidance as to how the court is to exercise its discretion in dismissing the case with or without prejudice.

In State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981), the HSC looked to a piece of federal legislation, the Speedy Trial Act, and adopted its three factors:

In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [HRPP Rule 48] and on the administration of justice. 

Id. at 269, 625 P.2d at 1044 (quoting 18 U.S.C. § 3162(a)(2)). In addition to these factors, the court may consider if the defendant was prejudiced by the Rule 48 violation. State v. Coyaso, 73 Haw. 352, 358, 833 P.2d 66, 69 (1992); State v. Kim, 109 Hawaii 59, 66, 122 P.3d 1157, 1164 (App. 2005).

The Court must make an on-the-Record Explanation for its Decision. The SCOTUS interpreted the Speedy Trial Act in United States v. Taylor, 487 U.S. 326 (1988). There, it held that because Congress required the “consideration” of the three factors, the trial court “must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review. Only then can an appellate court ascertain whether a district court has ignored or slighted a factor that Congress has deemed pertinent to the choice of remedy, thereby failing to act within in the limits prescribed by Congress.” Id. at 336-37.

According to the ICA, because the HSC adopted the factors from the Speedy Trial Act in considering dismissals for Rule 48 violations, the Taylor rule should apply and not only must the trial court consider the factors, it “must also clearly articulate the effect of the Estencion factors and any other factor it considered in rendering its decision.

. . . but not Always. Then again, express findings and explanations may not be required all the time. The ICA also noted that even if the trial court’s findings are deficient, “where the record is sufficient for the appellate court to make a determination of whether the trial court abused its discretion, the appellate court may elect, at its option, to resolve the appeal on the merits.” See United States v. Robinson, 389 F.3d 582, 587-89 (6th Cir. 2004). Nonetheless, the ICA further noted that when the record shows that the trial court failed to consider the Estencion factors, where the record is unable to allow meaningful appellate review of the court’s discretion in dismissing the case, or if the trial court’s findings are so lacking and the appellate court simply does not want to “assume the burden of conducting a searching review of the record,” the appellate court will remand the case back to the trial court to make appropriate findings.

Applying the new Rule. For Hern, the district court dismissed the case without prejudice simply because it was the “typical practice of Rule 48” violations. This is an affirmative failure to consider the Estencion factors and reliance on a practice or policy instead. “Discretionary action must be exercised on a case-by-case basis, not by any inflexible blanket policy[.]” State v. Martin, 56 Haw. 292, 294, 535 P.2d 127, 128 (1975). As for Ledbetter, there was no explanation for dismissing without prejudice. The ICA reviewed the record and held that there was not enough in it to determine if the district court properly exercised its discretion in dismissing the case without prejudice. And so the ICA vacated both judgments with instructions on remand to consider the Estencion factors, and “make findings that clearly articulate the effect” of those factors or any other factors it considered.

A Massive Implication for Reviewing Consideration of Legislatively-Mandated Sentencing Factors. The adoption of the Taylor rule is logically sound. If the rule requires consideration of factors, then the court would abuse its discretion in failing to consider the factors. That means that if the court fails to show consideration of the factors, the appellate court cannot review the trial court’s discretion in a meaningful way and it should vacate and remand. Sounds simple enough.

But this is analogous to something much bigger than a Rule 48 violation. Our legislature, like Congress, has directed sentencing courts to consider a bevy of factors in determining whether to place a defendant on probation, HRS § 706-621, and in imposing any kind of sentence. HRS § 706-606. The HSC has held that a clear and express finding and consideration of these factors are not required and if there is no evidence to the contrary, the sentencing court is presumed to have considered these legislatively-mandated factors before imposing a sentence. State v. Sinagoga, 81 Hawaii 421, 918 P.2d 228 (1996); State v. Gaylord, 78 Hawaii 127, 890 P.2d 1167 (1995). It would seem that this case and Taylor stand in sharp contrast to this presumption. Moreover, it would also seem that the tide has turned against the presumption in light of State v. Hussein, 122 Hawaii 495, 229 P.3d 313 (2010). Perhaps the time has come for reconsideration of the presumption.

A Battle of the Factors. The defendants argued that the six factors set out in State v. Moriwake, 65 Haw. 47, 56, 647 P.2d 705, 712-13 (1982), applied. The ICA disagreed and noted that the Estencion factors were expressly fashioned and adopted for determining Rule 48 motions and it is controlling. This raises an interesting question. Is this intricate three-factor analysis and the collateral rule requiring an express finding on the record limited to Rule 48 violations? It would seem so. That means that the question of whether to dismiss a case with or without prejudice depends on the reason for the dismissal in the first place. And that would make sense.

For example, the Estencion factors would not seem to apply to a dismissal based on multiple mistrials. That was the reason for the dismissal in Moriwake and the factors there take that into consideration. The factors require the court to consider the similar evidence that would be presented in a retrial and the likelihood of anything different in the retrial. But on the other hand, Moriwake came out after Estencion. Has Moriwake superseded the earlier case without expressly overruling it? The ICA did not discuss why that was not the case.

A New Frontier in Appellate Litigation? So what are the factors when a case should be dismissed for lack of probable cause underlying an indictment, judicial determination of p. c., or felony information? How should a trial court consider a dismissal based on prosecutorial misconduct? If the kinds of factors depend on the kind of dismissal, then we are in need of a lot of guidance for the many different ways in which a case can get bounced. It opens up a world of possibilities.

Park Factors Fall Out of Favor in Assessing De Minimis Infraction

State v. Pacquing (HSC March 22, 2013)

Background. Chester Pacquing was driving a black Acura when he was pulled over by the police on North King Street in Kalihi one night for driving with an expired tax emblem. The police asked for his license, registration, and proof of no-fault insurance. Pacquing didn’t show them the documents, but said he was Michael John Jose and provided a birthdate and residential address. Two citations were generated under that name. One was served on Pacquing, but the police served the other citation at the address he provided. The real Jose was served the citation and Jose went to the Kalihi police station. He told the police that he didn’t own a black Acura. A few weeks later, the police pulled over the same black Acura and again the same officers arrived to the scene. There, they found Pacquing and again Pacquing could not produce any of the driver’s documents. He said that he had no picture id, but was recently cited and showed them one of the citations. The police detained Pacquing while they woke up Jose (it was around 3:00 a. m.). Jose showed up and identified Pacquing as Pacquing. Pacquing told the police that was in fact his name and that he was scared because of outstanding warrants. He said that he used to live next to Jose. Pacquing was arrested and charged with the unauthorized possession of confidential personal information, a felony. HRS § 708-839.55.

Pacquing filed a motion to dismiss on the grounds that this was a de minimis infraction. The circuit court granted the motion, but granted the motion without prejudice to the prosecution for charging Pacquing with unsworn falsification to authorities within 90 days of the order. The prosecution appealed. On appeal, the ICA held that the circuit court erred in granting the motion to dismiss. Pacquing petitioned for certiorari.

How to Bring a De Minimis Motion. The court may dismiss the case “if, having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds that the defendant’s conduct [d]id not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction[.]” HRS § 702-236(1)(b). The defendant must show “that all of the relevant attendant circumstances” were presented before the court. Statev. Rapozo, 123 Hawaii 329, 337-38, 235 P.3d 325, 333-34 (2010); State v. Oughterson, 99 Hawaii 244, 256, 54 P.3d 415, 427 (2002). According to the HSC, the circuit court abused its discretion in granting Pacquing’s motion.

Assessing the Conduct Caused or Threatened the harm or evil Meant to be Prevented by HRS § 708-839.55. The offense of unauthorized possession of confidential personal information, or UPCPI, arises when a person “intentionally or knowingly possesses, without authorization, any confidential personal information of another in any form, including but not limited to mail, physical documents, identification cards, or information stored in digital form.” HRS § 708-839.55. According to the HSC, because the statute does not clearly describe the harm or evil that it is designed to prevent, it looked to the statute’s legislative history. See First Ins. Co. of Hawaii v. A&B Props., 126 Hawaii 406, 415, 271 P.3d 1165, 1174 (2012).

. . . Requires Diving into Legislative History. The statute was promulgated in an anti-phishing package designed to prevent “phishing scams, [where] Internet scammers try to get information, such as credit card numbers, passwords, account information, or other personal information, by convincing Internet users to divulge the information under false pretenses.” 2005 Haw. Sess. Laws Act 65, § 1 at 147. But the HSC noted that phishing is just one form of identity theft. Identity theft need not be high tech. “Some perpetrators are close friends and family members who . . . use without authorization the victim’s confidential personal information to obtain credit.” Id. at 4. After reviewing the legislative history, the HSC concluded that the offense is part of a broad plan to stop identity theft.

Here, Pacquing used his neighbor’s personal information to avoid arrest and citation on two occasions. According to the HSC, if Pacquing had not finally been arrested, he “would have had a continuing opportunity to utilize Jose’s confidential personal information for a variety of criminal purposes.” This is precisely the harm that the statute is meant to stop.

And the Threatened harm or evil was not too Trivial to Warrant Conviction. Pacquing could have also had the case dismissed if he could show that the offense was committed “to an extent too trivial to warrant the condemnation of conviction.” HRS § 702-236(1)(b). According to the HSC, in order to establish this, the defendant must show that the conduct may have implicated the harm or evil that the statute meant to prevent, but only to an extent too trivial to warrant the condemnation of conviction. State v. Oughterson, 99 Hawaii at 256, 54 P.3d at 327.

Here, the circuit court granted the motion because Jose did not have to appear in the traffic court once he told the police that he didn’t own a black Acura. The HSC held that the circuit court failed to consider the threatened harm in addition to the actual harm. The threatened harm could have led to all kinds of hardship on Jose. He could have been called into court and since he was not actually served with the citation a warrant would have issued for his arrest and he could have been prosecuted for contempt of court. Moreover, Pacquing could have continued to use the Jose’s name and Jose would have racked up more citations. These were not considered by the circuit court and is in disregard of the principles set forth in HRS § 702-236(1). Moreover, there was no evidence setting forth the explanation for the offense and using the information to avoid arrest is not “a benign, innocent, or a technical infraction.” Thus, it was an abuse of discretion in granting the motion.

Justice Acoba’s Dissent. Justice Acoba dissented. Dismissal as a de minimis infraction is based on the nine factors laid out in State v. Park, 55 Haw. 610, 617, 525 P.2d 586, 591 (1974):

(1) the background, experience and character of the defendant; (2) knowledge on the part of the defendant of the consequences of the act; (3) the circumstances surrounding the offense; (4) the harm or evil caused or threatened by the offense; (5) the probable impact of the offense on the community; (6) the seriousness of the punishment; (7) the mitigating circumstances; (8) possible improper motives of the complainant or prosecutor; (9) any other data which may reveal the nature and degree of the culpability in the offense committed by each defendant.

Id.

Justice Acoba noted that the majority did not address these factors even though the circuit court followed precedent and dutifully applied the factors. It was well within the circuit court’s discretion to conclude that Pacquing’s conduct was de minimis. Justice Acoba pointed out that the majority’s decision to “de-emphasize” the Park factors is inconsistent with its reliance on the same factors in Rapozo. Unlike the majority, Justice Acoba wrote that the circuit court took into consideration all nine factors. Justice Acoba also took issue with the majority’s use of legislative history. The same legislative history, according to Justice Acoba, shows that the offense was not intended to criminalize things outside of identity theft. 

The Plain Error Problem Persists . . .

State v. Metcalfe (HSC March 19, 2013)

Pretrial Background. Kevin Metcalfe was charged by way of complaint of one count of murder in the second degree (HRS § 707-701.5) and carrying or using a firearm while in the commission of a felony (HRS § 134-21). About a month later, the prosecution filed an amended complaint with nearly the same charges, but the complaint was dated June 25, 2009. Metcalfe moved to dismiss the amended complaint based on Double Jeopardy and collateral estoppel. Metcalfe argued that the prosecution could not charge him for this case once the grand jury returned a “no bill” on the initial complaint. Metcalfe did not include a transcript of the grand jury proceedings or the preliminary hearing, but attached a lengthy declaration of counsel detailing what happened. The circuit court denied the motion on the grounds that Double Jeopardy did not attach at the grand jury phase and found that there was “no constitutional or statutory impediment prohibiting the State from proceeding by way of a preliminary hearing when a grand jury has filed a No Bill.”

The Trial. At trial, Rocky Jordan testified that he lived on Metcalfe’s property. According to Jordan, Metcalfe installed surveillance cameras on the property after someone had stolen tools and building supplies. Jordan testified that on May 6, 2009, he was awaken by a phone call at around 10:30 p.m. from Metcalfe urging him to call 911 and come over to his house. Jordan ran outside and saw a man--later identified as Larry Kuahuia--running toward Metcalfe with such force that he thought the man was going to bowl down Metcalfe. Metcalfe kept telling the man to get on the ground. Jordan then heard two shots and a few minutes later heard somebody crying for help. Jordan testified that he, Metcalfe, and Metcalfe's wife, Sharon Meech, had medical marijuana permits.

At trial, the recording of Metcalfe's 911 call was played for the jury. In the call, the caller identified himself as Metcalfe and told the dispatcher that he had shot a man who came onto his property. Later, an officer testified that when he got to the property, Metcalfe told him he had shot a burglar who was trying to break into the greenhouse. He told the officer that he saw the man, confronted him with his rifle and ordered him to get down on the ground. Apparently, the man did not comply and started to run down the driveway. Metcalfe shot him. The officer found the body on the property and saw a "buncha holes in his back." Metcalfe told the police that he was using birdshot no. 6.

Dr. Manoukian Testifies at Trial. The prosecution called (the late) Dr.Anthony Manoukian. Dr. Manoukian testified he was a licensed physician and surgeon in Hawai'i specializing in pathology and forensic pathology. He went to the University of Hawai'i at Manoa and is an assistant clinical professor for the university. He's also a member of the College of American Pathologists and the American Society for Clinical Pathology and is certified in anatomic, clinical, and forensic pathology from the American Board of Pathology. He testified that at the time of the trial, he had performed over 3,000 autopsies--100 of which were on people who died of firearm injuries. Dr. Manoukian also testified that he had some training in "autopsy experience in deaths due to firearms[,]""classes at the Maryland State Crime Lab and . . . [the] FBI Academy in Quantico, Virginia[,]" and in classes on extracting bullets and ballistics.

Dr. Manoukian testified that he performed the autopsy on Kuahuia and concluded with reasonable medical certainty that he died due to a "shotgun wound to the back." The linear graze wounds on the body convinced Dr. Manoukian that the trajectory of the bullets went from back to front. In other words, it showed that "the position of the decedent's body [was] to the barrel of the shotgun at the time the shotgun was discharged." Dr. Manoukian further concluded that this was not a short-range shot because of an absence of gunpowder on the skin or the imprint of the wad of the shotgun shell on the decedent's skin. Finally, Dr. Manoukian concluded that Kuahuia was around 60 feet away from the barrel of the gun based on the absence of pellet wounds. Metcalfe's counsel did not object.

Detective Ah Mow Testifies at Trial. Detective Walter Ah Mow testified that he is a certified arms instructor for the Hawai'i County Police Department. He also received training from the FBI and was certified by the National Rifle Association. Det. Ah Mow testified that they took from Metcalfe's property at Browning semi-automatic 12-guage shotgun. A few days after the incident, Det. Ah Mow tested the gun to determine the distance of the pellets and the spread of the pattern. Det. Ah Mow purchased number 6 birdshot. Det. Ah Mow shot the gun at various distances and checked the spread of the pellets on a target. Based on this experiment, the spread that corresponded was made at a distance of around 50 feet. Metcalfe's counsel did not object during the direct examination.

Defense's Case. Metcalfe testified. He testified that on that night he was installing the surveillance cameras when the motion detector came on. He looked to the monitor and saw a man on his property with something in his hand. The man was trying to break into the greenhouse. He called Jordan to call the police. He testified that he went outside with no intention of hurting anyone, but he took his shotgun. He brought the birdshot and not the buck shot. He went out to the greenhouse and saw a man crouching down. When Metcalfe shined the flashlight on him, the man started approaching him and jumped toward him. Metcalfe testified that he still had something in his hand. Metcalfe said he intended to fire a warning shot to get him back; he denied firing shots to protect his property. After the first shot, Metcalfe had a hard time seeing and saw what he believed to be the man falling toward him. He testified that he fired another shot because he believed he had no alternative. The man ran away, Metcalfe called 911, and he heard someone yell for help, but the dispatcher told him to stay where he was.

On cross, the prosecution questioned Metcalfe about his medical marijuana permit. Metcalfe testified that his permit allowed him to have ten plants that he kept in the greenhouse on the property. He admitted to having marijuana in his system that night because it stays in his system for at least 30 days.

The Jury Instructions, Verdict, Sentence, and Appeal. The parties agreed to the prosecution's proposed instructions on self-defense with modifications and the instruction on opinion testimony, which did not use the word "expert." There was no instruction for defense of property. The jury returned a verdict of manslaughter and use of a firearm, the corut sentenced Metcalfe to 20 years prison on each count running concurrently. Metcalfe appealed and the ICA affirmed.

No Error in Denying Motion to Dismiss for Lack of Transcripts (and the Merits). The HSC rejected Metcalfe's argument that the circuit court erred in denying the motion to dismiss without adequately reviewing the transcripts from the grand jury and the preliminary hearing. The HSC pointed out that Metcalfe failed to attach the transcripts in his motion and failed to make it part of the record. So even though the circuit court took judicial notice of the entire record, which would presumably include the transcripts, it is the "appellant's burden of demonstrating error in the record." State v. Hoang, 93 Hawai'i 333, 336, 3 P.3d 499, 502 (2000). Moreover, even though the court may take judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned[,]" HRE Rule 201(b); Ditto v. McCurdy, 98 Hawai'i 123, 130, 44 P.3d 274, 281 (2002), those facts can only be judicially noticed if "requested by a party and supplied with the necessary information." HRE Rule 201(d). Here, the circuit court did not have the necessary information to take judicial notice of what was said on the record at the grand jury or preliminary hearing because the transcripts were not included.

Dr. Manoukian and Det. Ah Mow are “Experts”? Metcalfe argued that the trial court’s failure to qualify Dr. Manoukian and Det. Ah Mow as experts in ballistics arose to plain error. Metcalfe pointed out that the prosecution relied heavily on their testimony in ballistics and even though the witnesses may be experts in some fields, there was no indication that they had any expertise in ballistics.

The Plain Error not Available when Party Fails to Object to Admission of Evidence. The HSC started its analysis by stating that because Metcalfe did not object to the testimony at trial, it may be waived on appeal. State v. Moses, 102 Hawaii 499, 456, 77 P.3d 940, 947 (2003). Still yet, the HSC has the power to recognize plain error when the error infringes upon “substantial rights.” HRPP Rule 52(b). According to the HSC, when it comes to the failure to object to “the admission of incompetent evidence,” the error is “generally” not subject to plain error review. See State v. Wallace, 80 Hawaii 382, 410, 910 P.2d 695, 723 (1996); State v. Uyesugi, 100 Hawaii 442, 464, 60 P.3d 843, 865 (2002). And on top of all of that, even if the plain error analysis was used, the trial court’s failure to formally qualify the witnesses in ballistics did not—according to the HSC—affect Metcalfe’s substantial rights.

Failure to Qualify Witness as Expert Before Expounding Expert Testimony not Error . . . “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” HRE Rule 702.

The HSC held that the plain language of the rule does not require the trial court to first formally qualify a witness as an expert in front of the jury before the opinion testimony can be admitted. Moreover, the HSC observed that certain judges disfavor qualifying experts in front of the jury because it is like commenting on the evidence that is about to come in. See Hon. Charles R. Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word “Expert” under the Federal Rules of Evidence in Civil and Criminal Jury Trials, 154 F.R.D. 537, 558-59 (1994). The HSC also looked to the ICA’s observation that some trial judges don’t make any findings of expertise and that the failure or refusal to make these findings is not an abuse of discretion. Barbee v. Queen’s Medical Center, 119 Hawaii 136, 155, 194 P.3d 1098, 1117 (App. 2008). In the end, the HSC held that because nothing in the HRE requires the trial court from finding the witness is an expert in a particular field or has knowledge under Rule 702, it is not error for the trial court to decline such a finding “so long as the requisite foundation for the witness’s testimony is established.”

. . . if Foundation for the Testimony Itself is Laid. Expert testimony under HRE Rule 702 requires (1) the witness must be qualified by knowledge, skill, experience, training or education; (2) the testimony must have the capacity to assist the trier of fact to understand the evidence or to determine a fact in issue; and (3) the expert’s analysis must meet a threshold level of reliability and trustworthiness. State v. Torres, 122 Hawaii 2, 31, 222 P.3d 409, 438 (App. 2009). The key prong is the third one. The trial court must “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 31, 222 P.3d at 438. Here, the HSC held that both the prosecution laid ample foundation for the expert testimony in ballistics.

Using the Word “Opinion Testimony” in Jury Instructions is not Erroneous. The HSC rejected Metcalfe’s argument that using the words “opinion testimony” instead of the word “expert” did not arise to any kind of error. The trial court instructed the jury that it “heard testimony of one or more witnesses who were allowed to give opinion testimony. Training and experience may make a person qualified to give opinion testimony in particular field.” The standard jury instructions, however, use the word “expert” instead. The HSC, without citing any cases or authority, simply held that this substitution of the words did not render the instruction defective. The language of the instruction was understandable and, most importantly, “the jury was still informed that it needed to decide whether to accept the testimony of these individuals and to determine how much weight to give this testimony.”

The Other Issues. The HSC rejected the rest of Metcalfe’s arguments. Specifically, it upheld the standard self-defense instruction and held that there was no need for the defense-of-property instruction. The HSC also held that it was not error for the trial court to issue a sua sponte cautionary instruction on the fact that the marijuana on the property was medical marijuana. Finally, the HSC held that Metcalfe’s counsel was not constitutionally ineffective.

Justice Acoba’s Dissent. Justice Acoba dissented on the evidentiary grounds. Justice Acoba wrote that the trial court should have formally qualified Dr. Manoukian and Det. Ah Mow and should have established for the jury their fields of expertise. These failings made it difficult or even impossible for the jury to evaluate their opinion testimony. And because it directly contradicted testimony of eyewitnesses, the errors substantially affected Metcalfe’s right to a fair trial and was thus plain error. Specifically, Justice Acoba rejected the “blanket suggestion that plain error does not apply to evidentiary questions.” According to the dissenters, “[n]one of our cases propose a bar to noticing plain error because the error is an evidentiary one.” Justice Acoba would have vacated the judgment and remanded for new trial. Judge Sakamoto, who sat on the court due to Justice Duffy’s vacancy, joined.

The New Plain Error Standard? The discussions among the justices about plain error is a perennial problem. Now it seems that the majority of justices uphold the “general” principle that errors involving the admission of evidence cannot be considered plain error. Justice Acoba disagrees completely. The “general” rule does seem a bit odd. If the standard is simply an error that “substantially affects” the defendant’s rights, then why must it exclude evidentiary errors? For Justice Acoba the right affected was the right to a fair trial. It would then seem that just about any erroneous admission of evidence would infringe upon that particular right. Then again, it depends on how crucial the evidence is. On the other hand, the majority does give itself some wiggle room. In a footnote, the HSC pointed out that in State v. Schnabel, 127 Hawaii 432,279 P.3d 1237 (2012), it recognized plain error even though they were evidentiary issues because the right affected was the right to testify at trial. It’s unclear if that’s a concession that the “general” rule isn’t a rule at all.

Two Different Bites at the Same Apple

State v. Spearman (February 21, 2013)

Background. Sarah Spearman was charged with operating a vehicle while under the influence of an intoxicant. The complaint advanced two theories: driving with an amount sufficient to impair her normal mental faculties or ability to care for her person and guard against casualty and with .08 or more grams of alcohol per 210 liters of breath. HRS § 291E-61(a)(1)&(3). The complaint did not state the state of mind for the first theory. At the arraignment, Spearman moved to dismiss the complaint on the grounds that no mens rea was included. The motion was denied and the case went to trial.

At trial, the witnesses for the prosecution testified that Spearman blew into the Intoxilyzer 8000 and the results came to "0.251 . . . percent of alcohol liters per 2/10ths breath." After the prosecution rested, Spearman moved for a judgment of acquittal and moved to strike all testimony relating to the breath test and its results. The district court interpreted the motion for acquittal to apply only to the theory under HRS § 291E-61(a)(3) and noted that the officer "testified in fact it was not .251 grams of alcohol per two hundred ten liters of breath. It was something I don't even understand. . . . It's up to her to testify to [the units of measurement]. She tried and failed." The motion for acquittal was granted as to (a)(3). Spearman, however, was found guilty of violating HRS § 291E-61(a)(1). She appealed.

While the case was on appeal before the ICA, the HSC came down with State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012), which required the mens rea in charging instruments for OUI offenses based on HRS § 291E-61(a)(1). The ICA vacated the judgment and remanded the case with specific instructions to dismiss the case without prejudice as to the count that was left on appeal. In a footnote, the ICA stated that because the district court acquitted Spearman of the theory under HRS § 291E-61(a)(3), the Double Jeopardy Clause prohibited the prosecution from re-charging her under that theory. Spearman was granted certiorari.

Double Jeopardy and Re-trials on Different Theories of OUI. There are different ways for the prosecution to prove operating a vehicle while under the influence of an intoxicant through liquor. One way is by proving that the driver had an amount sufficient to impair that person's mental faculties or ability to guard against casualty. The other way is by proving an alcohol content of 0.08 in breath or blood. HRS § 291E-61(a). These are alternative theories for the same, single count. State v. Dow, 72 Haw. 56, 806 P.2d 402 (1991). Double jeopardy protects the accused "against a second prosecution for the same offense after acquittal." Id. at 58-59, 806 P.2d at 404. But not all acquittals are the same for purposes of double jeopardy. Some are in form only.

For example, in a motion for acquittal, the court may only enter a judgment of acquittal for "one or more offenses." HRPP Rule 29(a). That means that a court cannot just acquit under a single theory of OUI. According to the HSC, it's all or nothing. In Dow, the trial court granted a motion to acquit on one theory, but not the other. Id. at 63, 806 P.2d at 406. There, the HSC held that this was an "acquittal in form only" and "Dow was not twice placed in jeopardy for the same offense when he was retried following a mistrial on the (a)(2) count, despite the trial court's entry of judgment of acquittal on the (a)(1)." Id. at 65-66, 806 P.2d at 407.

"Acquittal in Form Only . . ." The HSC held that Spearman's case was similar. Although the district court entered a judgment of acquittal for one theory--the 0.08 BAC theory--it proceeded to hear the prosecution for the other theory. Like Dow, this was an "acquittal in form only." And so, there was no violation of the Double Jeopardy Clause and no error in allowing the prosecution to re-try under the alternative theory under HRS § 291E-61(a)(1).

ICA's Footnote was Inconsistent with Lemalu. The ICA, in a footnote, observed that because the district court acquitted Spearman of the 0.08 theory under HRS § 291E-61(a)(3), the Double Jeopardy Clause prohibited re-prosecution of that exact same theory. The HSC noted that this note was wrong.

The Double Jeopardy Clause did not prevent the prosecution from re-trying a case under both theories when there was a "judgment of acquittal" for only a single theory of the OUI offense. State v. Lemalu, 72 Haw. 130, 131-32, 809 P.2d 442, 443 (1991). In that sense, the ICA's footnote at first blush would be inconsistent with the holding in Lemalu.

. . . but Lemalu Inconsistent with Mundon. Recently, in State v. Mundon, __ Hawai'i __, __ P.3d ___ (2012). The HSC acknowledged the doctrine of "collateral estoppel" which derives from the Double Jeopardy protections: "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. In adopting this doctrine, the HSC questioned the validity of Lemalu as it would be inconsistent with the new doctrine. The HSC now took the opportunity to expressly overrule Lemalu.

The prosecution cannot re-try under both theories of OUI if the trial court acquits the defendant of a single theory (even if it is in form only). The HSC explained that an acquittal under just one theory of OUI is an issue of ultimate fact. Here, the district court ultimately determined that the prosecution did not prove that Spearman was operating a vehicle with a breath-alcohol content of 0.08 or more grams of alcohol per two hundred ten liters of breath. Accordingly, the prosecution is collaterally estopped from re-trying that theory. Moreover, the prosecution cannot present any evidence about Spearman's breath-alcohol content at the trial for the other theory. Cf. State v. Mezurashi, 77 Hawai'i 94, 96, 881 P.2d 1240, 1243 (1994); see also Statev. Kalaola, 124 Hawai'i 43, 62, 237 P.3d 1109, 1128 (2010) ("Double Jeopardy forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.").

Bottom Line: Retrial on One Theory. In the end, the case was remanded for retrial of a single theory of OUI.

Six Words Justify Consecutive Terms

State v. Kong (January 31, 2013)

Background. Stanley Kong was charged with various drug offenses in two separate prosecutions. He petitioned into the Maui Drug Court Program. At the hearing on the petition, the circuit court explained that if violated the terms and conditions of the Maui Drug Court Program, he could be terminated from the program. The circuit court then found that Kong waived his rights "as indicated in the petition for admission" to the program and he was admitted. Kong participated in the program for several months, but at a status hearing, Kong admitted that he had relapsed and "used drugs." The circuit court informed Kong that he was going to give him another chance and keep him in the program. At the next scheduled hearing, Kong did not show up. The circuit court issued a bench warrant. He was picked up and appeared before the circuit court in custody.

At that initial hearing, Kong told the court that he wanted to "self-terminate" himself and requested to have bail set. The circuit court explained that he had a right to have a termination hearing with his own lawyer "to determine if termination is appropriate." The circuit court also explained that if he was terminated, there would be a "stipulated facts" trial in which the facts had already been agreed upon and would be found guilty as charged. Kong said he understood. He said he wanted to proceed with a self-termination, but that the public defender's office may be conflicted. The circuit court set a hearing for a motion to withdraw.

At the next hearing, Kong said that he wanted to self-terminate. The circuit court found that he terminated himself from the program and went into a stipulated-facts trial, where he was found guilty.

At the sentencing hearing, Kong said that he did "not want to stipulate to the contents of the [presentence investigation] report in this case[.]" The circuit court responded that that was "fine." The circuit court imposed consecutive sentences for the following reason:

Taking into consideration all of the factors set forth in Hawaii Revised Statutes Section 706-606, including the extensive record of the defendant, which includes six burglary convictions, which really represents--I'm sorry. Yeah, six burglary convictions, ten felonies, which represent a lot of harm in our community.

The Court is going to impose the following sentence in this matter. The defendant will be committed to the care and custody of the Director of the Department of Public Safety for a period of ten years on Count 1, five years on Count 2.

. . . .

In view of his extensive criminality, the Court is going to make these counts run consecutive for a total of fifteen years, mittimus forthwith, full credit for time served.

Kong appealed.

The Hussein Requirement: Court must Provide the Reasons for Imposing Consecutive Term of Imprisonment. "If multiple terms of imprisonment are imposed on a defendant . . . the terms may run concurrently or consecutively." HRS § 706-668.5(1). "Absent clear evidence to the contrary, it is presumed that a sentencing court will have considered all factors before imposing concurrent or consecutive terms of imprisonment under HRS § 706-606." State v. Hussein, 122 Hawai'i495, 503, 229 P.3d 313, 321 (2010). Recently, the HSC held that "circuit courts must state on the record at the time of sentencing the reasons for imposing a consecutive sentence" instead of a concurrent one. Id. at 510, 229 P.3d at 328.

The HSC identified two purposes for this requirement:

First, reasons identify the facts or circumstances within the range of statutory factors that a court considers important in determining that  a consecutive sentence is appropriate. An express statement, which evinces not merely consideration of the factors, but recites the specific circumstances that led the court to impose sentences consecutively in a particular case, provides a meaningful rationale to the defendant, the victim, and the public.

Second, reasons provide the conclusions drawn by the court from consideration of all the facts that pertain to the statutory factors. It is vital, for example, for the defendant to be specifically informed that the court has concluded that he or she is dangerous to the safety of the public, or poses an unacceptable risk of re-offending, or that rehabilitation appears unlikely due to his or her lack of motivation and a failure to demonstrate any interest in treatment, or that the multiplicity of offenses and victims and the impact upon the victims' lives warrant imposition of a consecutive term.

Id. at 509-10, 299 P.3d at 327-28.

The Words "Extensive Criminality" is Enough. The ICA examined what the circuit court stated before imposing the entire sentence. It started with the "extensive record" cited by the circuit court that, according to the sentencing court, "represents a lot of harm in our community" as well as the "extensive criminality" justifying the consecutive term. This was enough of a given reason for the ICA that showed the circuit court's conclusion that Kong was "dangerous to the safety of the public, or poses an unacceptable risk of re-offending[.]" Id. at 509, 229 P.3d at 327.

The ICA noted that Kong himself had relapsed and re-offended and was given a chance to stay in the program. Still, Kong opted to self-terminate. This suggested to the ICA that rehabilitation was unlikely due to a failure of motivation--another Hussein factor. Thus, the ICA held that the circuit court did not abuse its discretion in imposing a consecutive term.

Intellectual Sleight of Hand? According to the ICA, the issue was whether the circuit court abused its discretion in imposing a consecutive term. If so, then the analysis makes sense. The ICA looked at the entire record--including Kong's prior record and poor performance in the drug court program--and deferred to the circuit court's ruling. But is that really it?

Hussein was pretty clear: sentencing courts "must state its reasons as to why a consecutive sentence rather than a concurrent one was required." Id. at 509, 229 P.2d at 327. Isn't the issue really whether the circuit court's brief reasoning--"extensive criminality"--sufficient in light of the bright-line Hussein rule? If that's the issue, then it seems that the ICA missed the mark. It has nothing to do with an abuse of discretion. The court either provided a reason or it did not.

Inaccuracies in the PSI Report Waived for Failing to Object. "Unless conceded by the defendant, the state is required to show, by evidence satisfactory to the court, the fact of the defendant's prior conviction, as well as the fact of his representation by counsel, or the waiver thereof, at the time of his prior conviction." State v. Afong, 61 Haw. 281, 282, 602 P.2d 927, 929 (1979). Later, the HSC held that convictions listed in a PSI report "may be used against [the] defendant except those as to which the defendant timely responds with a good faith challenge on the record that the prior criminal conviction was (1) uncounseled, (2) otherwise invalidly entered and/or (3) not against the defendant." State v.Heggland, 118 Hawai'i 425, 439-40, 193 P.3d 341, 355-56 (2008).

Here, Kong argued that one of the convictions should not have been listed because that particular conviction was dismissed in 1995. He also argued that he did not "concede" the contents of the PSI. According to the ICA, even though Kong told the sentencing court that he did not want to stipulate to the contents of the PSI, that did not amount to a good-faith challenge to the conviction. Kong, according to the ICA, conceded the conviction. Nor was it plain error because the circuit court's consecutive term was based on "Kong's extensive criminal record in general" and not specifically that prior conviction.

The Circuit Court's Termination was Piecemeal, but not Error. The ICA also rejected Kong's argument that the waiver of his right to a full termination hearing was invalid. "A waiver is the knowing, intelligent, and voluntary relinquishment of a known right." State v. Friedman, 93 Hawai'i 63, 68, 996 P.2d 268, 273 (2000). In order to ensure a voluntary and knowing waiver, the court must first engage "in a personal on-the-record colloquy with the defendant[.]" State v. Murray, 116 Hawai'i 3, 12, 169 P.3d 955, 964 (2007). According to the ICA, Kong's wavier was voluntarily given. The ICA noted that when Kong first entered the drug court program, the trial court warned him that he "give up a lot of important legal rights" and explained that if he was terminated, then "the Court finds you guilty, and you are set for sentencing. That's it." Kong entered the program after that.

Later, when Kong said he wanted to self-terminate, the Court explained that he had a right to a termination hearing. Kong said he understood and the trial court explained the consequences of termination. Kong said he understood and wanted to self-terminate. About a week later, Kong still said he wanted to self-terminate. Kong confirmed that his mind was clear and not taking any medicine or drugs. According to the ICA, the record suggested that "Kong's strategy was to self-terminate to expedite sentencing because he was hoping for another chance at probation." In light of all of this, the ICA held that Kong voluntarily waived his right to a termination hearing.

Editor's Note. In the interest of full disclosure, my friend, colleague, and fellow Jayhawk, Samuel G. MacRoberts, is Mr. Kong's appellate counsel.

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!