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Electronically Filed
Supreme Court
SCWC-14-0000833
29-JUN-2017
09:26 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
KEVIN PAUL KIM,
Petitioner/Defendant-Appellant.
SCWC-14-0000833
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000833; CR. NO. 12-1-0363)
JUNE 29, 2017
NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ., WITH
RECKTENWALD, C.J., CONCURRING SEPARATELY
OPINION OF THE COURT BY POLLACK, J.
This case concerns a challenge by Kevin Paul Kim
regarding the validity of his waiver of the right to testify at
trial. Kim also contends that the trial court’s warnings to him
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during trial intimidated him and influenced his decision not to
testify. We hold that the record does not support a conclusion
that Kim’s waiver of the right to testify was voluntarily,
intelligently, and knowingly made. Thus, we need not resolve
whether the trial court’s statements influenced Kim’s decision
not to testify, but in light of Kim’s contention we provide
guidance on this issue.
I. BACKGROUND
A. General Overview
On March 5, 2012, the State filed a complaint against
Kevin Paul Kim in the Circuit Court of the First Circuit
(circuit court), alleging the following four counts: count 1,
burglary in the first degree, in violation of Hawaii Revised
Statutes (HRS) § 708-810(1)(c);1 count 2, terroristic threatening
in the second degree, in violation of HRS § 707-717;2 count 3,
assault in the third degree, in violation of HRS § 707-
1
A person commits the offense of burglary in the first
degree if the person intentionally enters or remains
unlawfully in a building, with intent to commit therein a
crime against a person or against property rights, and: . .
. [t]he person recklessly disregards a risk that the
building is the dwelling of another, and the building is
such a dwelling.
HRS § 708-810(1)(c) (1993).
2
“A person commits the offense of terroristic threatening in the
second degree if the person commits terroristic threatening other than as
provided in section 707-716.” HRS § 707-717(1) (1993).
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712(1)(a);3 and count 4, criminal property damage in the fourth
degree, in violation of HRS § 708-823.4 The allegations in
counts 1, 2, and 3 concerned an interaction between Kim and the
complaining witness on February 23, 2012. Count 4 involved an
incident alleged to have occurred on February 21, 2012.
A jury trial took place in February 2014, nearly two
years after the occurrence of the incidents in this case.5
B. Advisement at Beginning of Trial
On the first day of trial, the circuit court discussed
the right to testify with Kim. Kim indicated that he had not
yet made up his mind about whether he wanted to testify:
THE COURT: Mr. Kim -- our panel is not here -- you
have a constitutional right, Mr. Kim, to testify in your
own defense at the trial which we’re about to begin.
Now, you should talk with your lawyer and anybody
else you want to talk with about this decision to testify,
but this must be your decision. And if you decide you want
to testify, nobody can stop you from testifying. If you
decide to testify, the prosecution will be given a chance
to question you.
You also have a constitutional right not to testify
but rather to remain silent. Again, talk with whomever you
wish to talk with, of course including your lawyer, about
this decision, but this decision must be yours. And if you
3
“A person commits the offense of assault in the third degree if
the person: . . . [i]ntentionally, knowingly, or recklessly causes bodily
injury to another person . . . .” HRS § 707-712(1)(a) (1993).
4
“A person commits the offense of criminal property damage in the
fourth degree if by means other than fire, the person intentionally or
knowingly damages the property of another without the other’s consent.” HRS
§ 708-823 (1993 & Supp. 2006).
5
The Honorable Karen S.S. Ahn presided.
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decide you don’t want to testify nobody, including your
only lawyer, can force you to testify.
If you decide to testify I will instruct the jury
that it cannot hold your silence against you when it
decides your case. Whatever your decision is by the end of
trial I am going to briefly question you and the only
objective is to make sure that you understand all of these
rights and that your decision, whatever it is, was your
decision, okay, you understand?
THE DEFENDANT: Kind of, yeah.
THE COURT: Well, do you have any questions?
THE DEFENDANT: No, not really. I haven’t made my
mind up yet.
THE COURT: That’s fine. And well if you have any
questions, now is the time to ask because it’s very
important that you understand these two rights that nobody
can force you to do what you don’t want to do. And that if
you decide to testify, the prosecution will be given a
chance to question you. And if you don’t testify, you
decide you don’t want to testify, I’m going to instruct the
jury that it cannot hold your silence against you because
that is your right, okay?
THE DEFENDANT: Yes.
THE COURT: So I want you to understand all of this.
Do you have any questions about anything?
THE DEFENDANT: Oh, I’ve got tons of questions.
[DEFENSE COUNSEL]: I’ll address them, Your Honor.
THE COURT: Okay. Do you have any questions about
what you and I have just talked about?
THE DEFENDANT: No, Your Honor.
THE COURT: Okay. Do you understand what you and I
have talked about?
THE DEFENDANT: Yes.
The State’s evidence consisted of testimony from three
investigating Honolulu Police Officers; testimony of the
complaining witness, Daniel Lewis; and photographs of Lewis’s
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home and his injuries after the incident. Lewis testified at
trial that he was friends with Kim and Kim’s former girlfriend,
Jennifer Jimenez. At the time of the two incidents, Jimenez was
living with Lewis at his home because Kim had broken up with
Jimenez two weeks earlier. Lewis testified that, late in the
evening on February 21, 2012, the tires of his vehicle had been
cut “on [the] sidewalls so they couldn’t be repaired.” From his
bedroom window, Lewis saw Kim bend down near his car tires and
then walk around to the other side of the car.
Most of Lewis’s testimony, however, was regarding the
incident on the morning of February 23, 2012. Lewis testified
that Kim came to his home and first attempted to force his entry
through the back door, which is a sliding glass door that was
partially open but secured by a wooden dowel. According to
Lewis, Kim stuck his arm through the door and made “glancing
blows” to his shoulder and head, preventing him from closing the
door. Lewis testified that he then instructed Kim to go to the
front door where he opened the door to let Kim enter to stop Kim
from damaging the structure. Lewis had not told the police that
he had allowed Kim to enter through the front door.
Lewis testified that, when he opened the door to Kim,
Kim attacked him with a large stick, jabbing him in his
midsection, and knocking him off his feet. According to Lewis,
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he attempted to prevent Kim from hitting him by holding on to
the stick and that Kim also punched and kicked him. Lewis
explained that Jimenez eventually physically broke them up by
grabbing hold of Kim and guiding him toward the driveway to
leave. Lewis testified that he and Kim were yelling obscenities
at each other, he then verbally challenged Kim, and Kim attacked
Lewis again. Jimenez again broke them up, and Jimenez and Kim
proceeded to leave.
Lewis acknowledged that he was under probationary
supervision, and he also referenced his intimate relationship
with Jimenez and indicated that, at the time of the incident, he
wanted Jimenez to be his girlfriend. Lewis stated that he
attempted to and desired to withdraw his complaint before the
trial.
An investigating officer testified that she attempted
to contact Jimenez, who was present when the incident occurred
on February 23, 2012. However, the officer did not make contact
with Jimenez and was unable to get a statement from her. The
officer who responded to Lewis’s call to the police testified
that he believed he questioned Lewis’s neighbors. But, he was
unable to locate a witness on the cul-de-sac where Lewis’s home
is located who had seen or heard screaming or banging on a side
of a house.
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C. Warning to Kim After Jury Selection
Following jury selection on the first day of trial,
the circuit court warned Kim to “use a poker face” and to not
smile and shake his head at certain questions:
THE COURT: Counsel and defendant are present, our
jury has left the courtroom.
Mr. Kim, you need to use a poker face. No clapping
at the end of the selection of the jury.
THE DEFENDANT: It’s very emotional. I understand.
THE COURT: No smiling and shaking your head at
certain questions. I mean, you know, the jury is watching
you. And you may think that this is a positive thing for
you. But you don’t know, they may be looking at it and
thinking -- coming to negative conclusions and you don’t
want that, okay. So I’m going to require that everybody
use a poker face, that’s real important in these cases.
And what happens at counsel table is not evidence, all
right?
D. Warning to Kim During Cross-Examination of Lewis
The following day, during cross-examination of Lewis,
defense counsel sought to impeach Lewis with a prior
inconsistent statement regarding Kim’s purpose in coming to
Lewis’s home on February 23, 2012. Previously, Lewis told an
investigating officer that he felt threatened by Kim and that
Kim was attempting to enter the house to “get at” Jimenez.
Lewis testified at trial, however, that he initially did not
think that Kim would attack him and that Kim did not mean to
harm Jimenez but only to “retrieve her.” During this line of
questioning, the court asked both counsel to approach the bench;
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defense counsel was instructed to tell Kim to “stop making
faces”:
THE COURT: You’re going to have to tell your client
to stop making faces. He’s doing things like that where
I’m going to – I’m going to say something in front of the
jury.
. . .
[DEFENSE COUNSEL]: He’s a very emotional man.
THE COURT: There’s something wrong with him.
[DEFENSE COUNSEL]: He’s upset.
THE COURT: No, people are upset, but they, you know,
they don’t do this. You tell him I’m going to tell him as
soon as the jury leaves if he does that again I’m going to
say it in front of the jury.
Defense counsel continued questioning Lewis regarding
the incident and asked Lewis whether he had mentioned earlier in
his testimony that Kim made a fist with the hand that he stuck
through the door; Lewis confirmed that was his testimony.
Defense counsel then proceeded to question Lewis regarding a
preexisting injury that caused the index fingers on Kim’s hands
to be different in size. After the prosecution made an
objection, the court excused Lewis and the jury, and the court
immediately spoke to Kim regarding his behavior.
THE COURT: . . .
Mr. Kim.
. . .
THE COURT: You can not [sic] be making faces in front
of the jury, shaking your head or something. That is
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inappropriate. Defendants do not act that way, most of
them know better and I warned you yesterday.
THE DEFENDANT: Yes.
THE COURT: You’re doing it again today. After I --
some part of the testimony by Mr. Lewis you said you put up
your fingers and tried to get your lawyer’s attention.
THE DEFENDANT: Yes, ma’am, I did that.
THE COURT: I think what you may have been trying to
imply is that it’s so wrong I need to tell [Defense
Counsel].
THE DEFENDANT: Yes, that’s it. I don't know.
. . .
THE COURT: But you can not [sic] be trying to
communicate to the jury that this is all ridiculous. As
they were filing out you were holding your two hands palm
down so that the jury could see them and I will not
tolerate that.
THE DEFENDANT: Okay.
THE COURT: What is wrong?
THE DEFENDANT: Nothing is wrong.
THE COURT: It strikes me that something is wrong
because you can’t follow instructions.
THE DEFENDANT: Your Honor, I’m not trying to
disrespect you at all.
THE COURT: We’re trying to get a fair trial here. I
don’t know what happened, it’s up to the jury to decide.
THE DEFENDANT: Right.
THE COURT: But your play acting I think is what I
would really call it over there at counsel’s table is
totally inappropriate. And you may think not so that you
want to be acquitted, fine, I don’t blame you, but you
cannot do this. You have to – there’s the proper
administration of justice, we’re doing a trial, it’s up to
the jury to decide on the evidence, not on the shaking of
your head over there, you’re holding up your two hands so
they can see it as they file out. That is, I mean, I think
I am very close to I think being able to eject you from
this courtroom.
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THE DEFENDANT: It’s very hard to be here, Your Honor.
I am very excited when he says something that’s genuine.
THE COURT: Well, genuine from your point of view?
THE DEFENDANT: Yes.
THE COURT: You’re the one who’s on probation. You’re
the one accused of this crime. You’re the one looking at
five years in jail.
THE DEFENDANT: Yes, ma’am.
THE COURT: I would just be quiet and let the jury
decide.
THE DEFENDANT: Yes, ma’am.
. . .
THE COURT: We’re going to try this case fairly.
THE DEFENDANT: Thank you.
THE COURT: With or without you.
THE DEFENDANT: Yes, ma’am, I’m all about fairness,
ma’am, Your Honor.
THE COURT: That’s hard to believe watching your
antics.
THE DEFENDANT: I’m not trying to sway them or act,
it’s all genuine.
THE COURT: Why would anyone hold up their hands if so
they could see this?
THE DEFENDANT: No, I don’t know.
THE COURT: Oh, no, Mr. Kim, don’t lie to me, I was
watching you. You were standing at the edge of the table
facing the filing jurors and you were holding your hands
out in front of your stomach in the air with palms down,
fingers out, I saw that. Do not try to tell me your hands
were on the table, that’s a lie.
THE DEFENDANT: Yes, ma’am, it’s close to the table.
THE COURT: They were not close to the table, they
were in the air?
THE DEFENDANT: Yes, yes.
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THE COURT: Do not lie to me, Mr. Kim, that would be
very silly.
THE DEFENDANT: That’s it, last thing I want to do is
lie.
THE COURT: That wouldn’t be smart at all, right,
okay?
THE DEFENDANT: Yes, Judge.
THE COURT: Please use your brains.
THE DEFENDANT: Yes, ma’am, yes, ma’am.
THE COURT: I think your [sic] being obstructive.
THE DEFENDANT: I’m trying my best, I’ll do better.
THE COURT: Well --
THE DEFENDANT: This is really important to me.
THE COURT: It’s important for a lot of reasons, and
your [sic] one of them. And we’re trying to get you a fair
trial. We’re trying to give the State a fair trial. We’re
trying to let the jury decide appropriately on the evidence
that they believe, whatever that is, all right.
The prosecution placed its objection on the record, stating that
Kim had put his index fingers out side-by-side as a way of
demonstrating to Lewis and any other potential onlookers--
including the jury--that his right index finger is shorter than
his left index finger. Defense counsel then informed the court
that, at a later point, he was going to request permission for
Kim to show his fingers to the jury. The court indicated that
it did not think that would be a problem, but stated that Kim
“can’t do that as he’s sitting there.” The exchange continued
as follows:
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[DEFENSE COUNSEL]: Just so Mr. Kim is clear, if
there’s any further shaking of the heads, the Court is
going to admonish him in front of the jury.
THE COURT: I’m considering that. I’m also
considering ejecting him out.
THE DEFENDANT: And the trial continues without me?
THE COURT: Yes.
[DEFENSE COUNSEL]: We would.
THE COURT: I don’t want to do that, that’s the last
resort, but the law says you can if somebody is just being
obstructive. Okay, are we clear?
THE DEFENDANT: Yeah, we’re clear.
THE COURT: All right, you have any questions?
. . .
[DEFENSE COUNSEL]: This is the first time he’s been
in trial. I instructed him about procedures and again it’s
an emotional time for him, it’s been two years and he has -
-
. . .
THE COURT: I don’t want to hear anything more about
the emotion, all right. You’re a grown man, I would think
you’re able to control your emotions or something, I would
assume that. You could talk to your lawyer all you want.
You can take notes. I’ll give you all the time to talk to
him that you need. But there will be no more smiling,
shaking one’s head, kind of rolling one’s eyes, holding up
fingers, holding up hands to show the jury, that’s
incredibly -- well, it’s really inappropriate.
THE DEFENDANT: I’m sorry. I didn’t realize.
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E. Tachibana Colloquy
After the State rested its case, Kim was permitted to
approach the jury box.6 Kim showed the jury his hands facing
down; he also pointed his right index finger and his left index
finger for the jury to compare. Further, Kim held out his hands
with his palms facing up, and he made two fists for the jury to
see. Following this demonstration, there was a lunch recess.
After the lunch recess, the court asked defense
counsel whether Mr. Kim had made a decision with respect to
testifying:
THE COURT: Okay, let’s go back on the record.
Counsel and the defendant are present, but not our jury.
[Defense counsel], has your client made a decision?
[DEFENSE COUNSEL]: Yes, Your Honor. I’ve reviewed with Mr.
Kim the pros and cons of testifying, and he is electing not
to testify and it’s his decision.
BY THE COURT:
Q. Okay. Mr. Kim, as you and I talked about at
start of the trial, you have a constitutional right to
testify in your own defense. And you should talk with your
lawyer and anybody else you may want to talk with, but the
decision to testify is yours and yours alone. And if you
decide you want to testify, nobody can stop you from
testifying, including your own lawyer. If you decide to
testify, the prosecution will be given a chance to question
you.
You also have a constitutional right not to
testify. You have a right to remain silent. Again, talk
6
The apparent purpose of Kim’s presentation of his hands to the
jury was to impeach Lewis’s testimony that Kim made a fist with his hands.
Defense counsel later argued in closing argument that a preexisting injury to
Kim’s right index finger prevented him from bending it to form a fist.
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with whomever you want to talk with, but this decision must
be yours and yours alone. If you decide you don’t want to
testify, nobody can force you to testify. If you decide
not to testify, I instruct the jury that it cannot hold
your silence against you in deciding your case. Have you
understood all of that?
A. Yes, ma’am.
Q. Okay. Any questions about anything related to
that or anything else?
A. I think I’m finally starting to get it here.
Q. Okay. So do you have any questions?
A. Not really.
Q. All right. And what is your decision as to
whether you want to testify or not which is your decision
alone?
A. Well, in your words I want to but I can’t, I
don’t think I can, so I’m not going to.
Q. Well, you know, as I say, it’s your decision,
it’s your case, and it’s you who has to make the decision.
A. I choose not to.
THE COURT: Okay. I think from what I’ve seen and
heard, Mr. Kim, he looks very cognizant and alert and I
believe he understands his right to testify and his right
not to testify and that this is his decision, and he’s
voluntarily, knowingly and intelligently decided to give up
that right.
The defense then rested without presenting any testimonial
evidence.
The jury found Kim guilty of criminal trespassing in
the first degree, terroristic threatening in the second degree,
and assault in the third degree. By special interrogatory, the
jury indicated that the prosecution proved beyond a reasonable
doubt that the fight or scuffle was not entered into by mutual
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consent. And, with regard to count 4, criminal property damage
in the fourth degree, the jury found that Kim was not guilty.
Kim was sentenced to one year in jail for each conviction, with
the terms to run concurrently. Kim appealed to the Intermediate
Court of Appeals (ICA) from the Judgment of Conviction and
Sentence entered by the circuit court on April 30, 2014.
II. ICA PROCEEDINGS
In his opening brief, Kim argued that the circuit
court influenced his decision not to testify by intimidating him
throughout the entire trial. Kim contended that the circuit
court threatened to admonish him in front of the jury and to
eject him from the courtroom; he asserted it “seemed apparent”
that he “wanted to be heard and testify,” but that the circuit
court “swayed” him from testifying.
Kim also argued that the circuit court did not engage
in a true colloquy with him to ascertain his understanding of
his Tachibana rights and that this failure resulted in “a
failure to obtain the on-the-record waiver required by
Tachibana.” Kim noted that the circuit court did not advise or
assure him of his right to testify during the exchange in which
the circuit court admonished him for making faces and trying to
communicate to the jury. Kim asserted that it is unknowable
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whether his testimony could have established reasonable doubt
that he committed the charged offenses.
In its answering brief, the State asserted that the
circuit court conducted the required Tachibana colloquy and pre-
trial advisement. The State contended that the circuit court
addressed Kim’s right to testify and not to testify and
explained what those rights entailed and what they meant. The
State also noted that, although Kim was provided an opportunity
to ask questions, he did not have any questions for the court.
The State argued that Kim overlooks that assessing whether he
knowingly, intelligently, and voluntarily waived his right to
testify requires looking at the totality of the facts and
circumstances of the particular case. The State maintained that
nothing in the record showed that Kim did not understand his
rights as explained to him by the court. And, the State further
noted that, on appellate review, the circuit court’s assessment
of the situation and the capabilities of the defendant have to
be given some weight.
Additionally, the State argued that, even assuming the
court’s colloquy was deficient, the error was harmless because
Kim presented no evidence at trial, so there was no
contradictory evidence to the State’s case. The State further
contended that while Lewis was extensively cross-examined and
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there may have been inconsistencies, the inconsistencies were
not so material such that they took away from the essential
nature of Kim’s conduct.
With regard to Kim’s assertion that the circuit court
intimidated him, the State noted that Kim did not specify how
the court influenced his decision not to testify. The State
argued that there was nothing improper about the court warning
Kim that he could lose his right to be present at trial if he
continued his disruptive behavior.
In a summary disposition order, the ICA concluded that
the circuit court adequately advised Kim of his rights and
obtained a valid waiver of his right to testify. The ICA
reasoned that the circuit court fully advised Kim of the five
rights required by the Tachibana colloquy. The ICA noted that,
after engaging in a discussion with Kim, the circuit court
clearly stated that Kim looked “very cognizant and alert” and
that he understood the Tachibana colloquy and its implications.
With regard to Kim’s argument that the circuit court
intimidated him throughout trial, thus influencing his decision
not to testify, the ICA concluded that the record was
insufficient to support a determination that the circuit court’s
warnings were “sufficiently intimidating” as to affect Kim’s
decision not to testify. The ICA reasoned that a trial court is
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well within its discretion to warn a defendant that he or she
could lose the right to be present at trial, if the defendant’s
disruptive behavior persists after the warning.
III. STANDARD OF REVIEW
The validity of a criminal defendant’s waiver of the
right to testify is a question of constitutional law reviewed by
this court under the right/wrong standard. See State v. Gomez-
Lobato, 130 Hawaiʻi 465, 468-69, 312 P.3d 897, 900-01 (2013)
(“The validity of a criminal defendant’s waiver of his or her
right to a jury trial presents a question of state and federal
constitutional law. . . . [W]e review questions of
constitutional law under the right/wrong standard.”).
IV. DISCUSSION
Hawaiʻi law has historically protected both the right
to testify and the right not to testify. State v. Monteil, 134
Hawaiʻi 361, 369, 341 P.3d 567, 575 (2014). The right to testify
is guaranteed by the Fifth and Sixth Amendments to the United
States Constitution; article I, sections 5, 10, and 14 of the
Hawaiʻi Constitution; and HRS § 801-2 (1993). State v. Pomroy,
132 Hawaiʻi 85, 91,
319 P.3d 1093, 1099 (2014). The right not to
testify is guaranteed by the Fifth Amendment and the Hawaiʻi
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Constitution’s parallel guarantee under article I, section 10.
Monteil, 134 Hawaiʻi at 369, 341 P.3d at 575.
In Tachibana v. State, this court held that, “in order
to protect the right to testify under the Hawaiʻi Constitution,
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.” 79 Hawaiʻi
226, 236, 900 P.2d 1293, 1303 (1995). “In addition to requiring
an ‘ultimate colloquy,’ Tachibana strongly recommended trial
courts conduct a prior-to-trial advisement to inform defendants
of their right to testify and the right not to testify.”
Monteil, 134 Hawaiʻi at 370,
341 P.3d at 576 (quoting Tachibana,
79 Hawaiʻi at 237 n.9,
900 P.2d at 1304 n.9). Thus, trial courts
are charged with a “‘serious and weighty responsibility’” of
ensuring that the waiver of the right to testify is a knowing
and intelligent decision, id. at 371,
341 P.3d at 577 (quoting
Tachibana, 79 Hawaiʻi at 233,
900 P.2d at 1300), and it is the
trial court’s duty to establish a record sufficient to
“effectively settle the right-to-testify issues in the case.”
Pomroy, 132 Hawaiʻi at 93 n.7,
319 P.3d at 1101 n.7 (citing State
v. Han, 130 Hawaiʻi 83, 91,
306 P.3d 128, 136 (2013)).
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A. The Record Is Insufficient For Appellate Determination That
The Waiver Was Valid.
This court has emphasized the importance of engaging
in a “true colloquy” with the defendant, one that consists of an
“‘oral exchange’ in which the judge ascertains the defendant’s
understanding of the proceedings and of the defendant’s rights.”
Pomroy, 132 Hawaiʻi at 93, 319 P.3d at 1101 (quoting Han, 130
Hawaiʻi at 90,
306 P.3d at 135). “The failure to engage in a
true exchange to ascertain the defendant’s understanding of the
individual rights comprising the Tachibana colloquy results in
the failure to ensure that [the defendant] understood his [or
her] rights [and] amounts to a failure to obtain the on-the-
record waiver required by Tachibana.”
Id.,319 P.3d at 1101
(first and third alterations in original) (quoting Han, 130
Hawaiʻi at 91,
306 P.3d at 136).
In this case, the record is insufficient to support a
determination that Kim’s waiver of his right to testify was
voluntarily, intelligently, and knowingly made. Although the
circuit court advised Kim of his right to testify or not to
testify, the court did not engage in the requisite exchange to
ascertain Kim’s understanding of his rights. After advising Kim
of his rights to testify and not to testify, the court asked Kim
his decision regarding testifying, and Kim responded in a manner
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that indicated that he did not adequately understand his
constitutional rights:
Q. All right. And what is your decision as to
whether you want to testify or not which is your decision
alone?
A. Well, in your words I want to but I can’t, I
don’t think I can, so I’m not going to.
Q. Well, you know, as I say, it’s your decision,
it’s your case, and it’s you who has to make the decision.
A. I choose not to.
THE COURT: Okay. I think from what I’ve seen and
heard, Mr. Kim, he looks very cognizant and alert and I
believe he understands his right to testify and his right
not to testify and that this is his decision, and he’s
voluntarily, knowingly and intelligently decided to give up
that right.
(Emphasis added.) When Kim stated, “in your words I want to but
I can’t, I don’t think I can, so I’m not going to,” it raised
serious questions as to whether Kim truly understood his right
to testify or not to testify. It was incumbent on the circuit
court at this point to question Kim further: (1) to determine
why Kim believed he could not testify, even though he indicated
that he wanted to testify; (2) to clarify any misunderstanding
that Kim had regarding his trial rights; and (3) to establish a
record demonstrating Kim’s understanding of his right to testify
following the court’s clarification. The court’s response,
“it’s your decision, it’s your case, and it’s you who has to
make the decision,” did not address what Kim had said. Although
Kim indicated that he was electing not to testify because he did
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not think he could, the court merely repeated what it had
earlier stated--that it was Kim’s decision whether to testify.
Consequently, the record is silent as to why Kim
believed that he could not testify despite his apparent
willingness to do so. Because the court only reiterated that it
was Kim’s decision whether to testify, and Kim responded, “I
choose not to,” his choice may very well have been influenced or
dictated by his belief that he could not testify based on his
understanding that he did not think he could. Finally, Kim
explained that he had come to his belief that he could not
testify as a result of statements the court made; Kim stated,
“[I]n your words I want to but I can’t.” Again, the record
lacks any inquiry by the court as to what were the court’s words
to which Kim was referring, what led to Kim’s confusion, and
what needed to be explained to him in order to address his
confusion.
The circuit court’s description of its own assessment
of Kim as “cognizant and alert” is not dispositive. “We are
tasked with scrutinizing the language used by both the court and
the defendant to assess whether a defendant knowingly,
intelligently, and voluntarily waived his or her right to
testify.” Pomroy, 132 Hawaiʻi at 93 n.7, 319 P.3d at 1101 n.7.
While the circuit court’s observation of Kim may be helpful on
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review, we cannot defer to the circuit court’s “assessment of
[Kim’s] understanding whenever the express language on the
record leaves us with any doubt about the validity of the
colloquy and/or [Kim’s] waiver.” Id.,319 P.3d at 1101 n.7.
Here, Kim’s response to the court that he was choosing not to
testify based upon his reliance on the circuit court’s earlier
statements raises serious concerns as to the extent to which Kim
understood the right to testify.7 Therefore, without further
questioning by the circuit court, the record is insufficient to
support a determination that Kim’s waiver of the right to
testify was knowingly, intelligently, and voluntarily made.
7
The exchange between the court and Kim regarding his behavior
during the trial suggests that circumstances existed that required the court
to use extra care in ensuring that Kim understood his rights. It is noted
that in circumstances where the court has reason to question the defendant’s
understanding, it may be necessary for a trial court to ask additional
follow-up questions to confirm the defendant’s understanding. See State v.
Phua, 135 Hawaiʻi 504, 514, 353 P.3d 1046, 1056 (2015) (providing that
additional questioning may be necessary to confirm a defendant’s
understanding of the court’s warnings of the risks of waiving counsel and the
disadvantages of self-representation). For example, circumstances requiring
additional questioning may exist where there is a language barrier between
the defendant and the court. See State v. Krstoth, 138 Hawaiʻi 268, 276,
378
P.3d 984, 992 (2016) (noting that a language barrier may be a salient fact
that puts a court on notice that waiver by the defendant may be less than
knowing and intelligent); State v. Gomez-Lobato, 130 Hawaiʻi 465, 472,
312
P.3d 897, 904 (2013) (concluding that in light of the language barrier
between the defendant and court, the defendant’s affirmative answers to the
judge’s questions did not establish that he understood he was waiving his
right to a jury trial); Phua, 135 Hawaiʻi at 514-15,
353 P.3d at 1056-57
(same). In this case, the circuit court specifically stated to defense
counsel regarding Kim, “There’s something wrong with him.”
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B. Whether The Circuit Court Intimidated Kim Need Not Be
Determined By This Court.
Kim also contends that the trial court intimidated him
into not testifying. Because we conclude that the record is
insufficient to support a determination that Kim’s right to
testify was knowingly, intelligently, and voluntarily waived, it
is not necessary to resolve whether the trial court influenced
Kim’s decision not to testify. However, given the exchange that
took place between Kim and the circuit court, we provide
guidance on this matter.
The United States Supreme Court has declared, “It is
essential to the proper administration of criminal justice that
dignity, order, and decorum be the hallmarks of all court
proceedings in our country.” Illinois v. Allen, 397 U.S. 337,
343 (1970); State v. Castro,
69 Haw. 633, 650,
756 P.2d 1033,
1045 (1988). Thus, a judge should use the powers of the court
to maintain order in judicial proceedings to prevent
distractions and disruptions in a trial.8
In conducting judicial proceedings, trial judges may
be confronted with “disruptive, contumacious, [and] stubbornly
8
“A trial judge should maintain order and decorum in judicial
proceedings. The trial judge has the obligation to use his or her judicial
power to prevent distractions from and disruptions of the trial.” Standards
for Criminal Justice: Special Functions of the Trial Judge § 6-3.5(a) (Am.
Bar Ass’n 2000).
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defiant defendants.” Castro, 69 Haw. at 650,
756 P.2d at 1045
(alteration in original) (quoting Allen,
397 U.S. at 343).
Under such circumstances, we have stated that trial judges are
vested with “sufficient discretion to meet the circumstances of
each case.”
Id.,756 P.2d at 1045 (quoting Allen,
397 U.S. at
343). A trial judge may remove a “particularly obstreperous and
disruptive defendant” from the courtroom where the defendant’s
behavior is of “‘an extreme and aggravated nature’” to justify
removal.
Id.,756 P.2d at 1045 (quoting Allen,
397 U.S. at 343-
44, 346); see also Standards for Criminal Justice: Special
Functions of the Trial Judge § 6-3.8 (Am. Bar Ass’n 2000)
[hereinafter ABA Standards for Trial Judges] (“A defendant may
be removed from the courtroom during trial when the defendant’s
conduct is so disruptive that the trial cannot proceed in an
orderly manner.”).
At the same time, a “trial judge has the
responsibility for safeguarding . . . the rights of the
accused.” ABA Standards for Trial Judges § 6-1.1(a). Trial
judges “should remain sensitive to the various . . . interests .
. . involved in the criminal justice system,” and “[o]f utmost
importance, . . . are the constitutional rights of the
defendant.” ABA Standards for Trial Judges § 6-1.1(c) cmt. at
17. At times, the duties of protecting the constitutional
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rights of the defendant and maintaining the order and decorum of
the proceedings may be in tension. In such circumstances, the
court must be cautious in exercising its authority to maintain
order and decorum, and the action taken by the court should be
proportional to the perceived disruption. See Allen, 397 U.S.
at 343 (“No one formula for maintaining the appropriate
courtroom atmosphere will be best in all situations.”).
In this case, the court informed Kim in three
instances that it was considering removing him from the
courtroom. Certainly, Kim’s actions of apparently trying to
communicate to the jury from counsel table that his right hand
could not form a fist and trying to convey his thoughts through
facial expressions provided the basis for intervention by the
court. However, the warning to Kim that the court was very
close to ejecting him from the courtroom appears to have been
premature. “Public confidence in the trial process requires
that removal of a defendant be limited to cases urgently
demanding that action be taken[.] . . .” ABA Standards for
Trial Judges § 6-3.8 cmt. at 66. A defendant charged with a
criminal offense has a right to be present at “each critical
stage of the criminal proceeding.” Onaka v. Onaka, 112 Hawaiʻi
374, 380, 146 P.3d 89, 95 (2006) (citing Rushen v. Spain,
464
U.S. 114, 117 (1983)). This right is “of no less than
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constitutional magnitude, and is founded upon the Confrontation
and Due Process clauses of both the United States and Hawaiʻi
Constitutions.” State v. Walsh, 125 Hawaiʻi 271, 285, 260 P.3d
350, 364 (2011) (quoting State v. Okumura,
58 Haw. 425, 427,
570
P.2d 848, 851 (1977)). The right of presence is “scarcely less
important . . . than the right of trial itself.” State v.
Kaulia, 128 Hawaiʻi 479, 492,
291 P.3d 377, 390 (2013) (quoting
Diaz v. United States,
223 U.S. 442, 455 (1912)).
On the present record, Kim’s behavior had not risen to
“‘an extreme and aggravated’” level such that his trial could
not be carried on with him present.9 Castro, 69 Haw. at 650,
756
P.2d at 1045 (quoting Allen,
397 U.S. at 346). While a court
does not have to wait for conduct to reach an egregious nature
before issuing a warning, the stated consequences of improper
behavior should be proportional to the defendant’s conduct. See
id. at 650-53,
756 P.2d at 1045-47; see also ABA Standards for
Trial Judges § 6-3.5 cmt. at 57 (“Normally, the judge should use
the least severe measures available to maintain order and
9
“[A] defendant can lose his right to be present at trial if,
after he has been warned by the judge that he will be removed if he continues
his disruptive behavior, he nevertheless insists on conducting himself in a
manner so disorderly, disruptive, and disrespectful of the court that his
trial cannot be carried on with him in the courtroom.” Allen, 397 U.S. at
343.
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decorum in the courtroom.”). A court should be cognizant that
overstating the sanction for the behavior involved may risk
influencing the defendant’s exercise of his or her
constitutional trial rights.10 See ABA Standards for Trial
Judges § 6-1.4 cmt. at 22 (“The judge should remain aware that
he or she is constantly being observed, and must always be
attentive to the proceedings and to the appearance of his or her
own actions.”).
Additionally, the circuit court advised defense
counsel at the bench that, if Kim did not stop making faces, he
would be reprimanded in front of the jury, and defense counsel
repeated the court’s caveat in Kim’s presence.11 While the
circuit court sought to preserve the dignity of the proceedings
and ensure that both sides received a fair trial, the court’s
indication that it would reprimand Kim or consider reprimanding
Kim in the presence of the jury is generally disfavored. If it
is necessary for a judge to comment upon the conduct of the
10
This may be particularly true when the circumstances indicate
that the defendant may be more vulnerable to influence by the court or the
defendant lacks experience with the requirements of a court proceeding.
11
This warning to admonish Kim in front of the jury did not concern
instructing the jury to disregard the conduct of Kim that the court
considered inappropriate. Immediately after completing its warning to Kim,
the court reconvened the jury and instructed the jury that it may only
consider the sworn testimony of witnesses and any exhibits that were in
evidence.
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defendant or others, “the judge should do so outside the
presence of the jury, if possible.” ABA Standards for Trial
Judges § 6-3.5. In addition, Standard 6-3.5 of the Standards
for Criminal Justice: Special Functions of the Trial Judge
provides that, in commenting upon the conduct of trial
participants, the court should “limit[] comments and rulings to
what is reasonably required for the orderly progress of the
trial.” Id.; see also People v. Johnson, 993 N.E.2d 1, 24 (Ill.
App. Ct. 2012) (quoting People v. Eckert,
551 N.E.2d 820, 825
(Ill. App. Ct. 1990)) (noting that the trial judge’s comments
toward defense witness and defense counsel outside the presence
of the jury were not “reasonably required for the underlying
progress of the trial”).
As we noted recently, “[a] judge should be courteous,
respectful and civil to lawyers, parties, . . . and all other
participants in the legal process.” State v. Barrios, 139
Hawaiʻi 321, 339 n.12, 389 P.3d 916, 934 n.12 (2016) (alteration
in original) (quoting Principles of Professionalism for Hawaiʻi
Judges Principle 1).12 “The conduct of the judge sets the tone
12
See also Hawaiʻi Revised Code of Judicial Conduct Rule 2.8(b)
(2009) (“A judge shall be patient, . . . and courteous to litigants, . . .
and others with whom the judge deals in an official capacity . . . .”); ABA
Standards for Trial Judges § 6-3.4 cmt. at 55 (stating that the judge “has
(continued . . .)
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of the proceedings.” ABA Standards for Trial Judges § 6-3.4
cmt. at 55. Hence, the judge may have to exercise “extreme
forbearance” and “self-control,” particularly in criminal cases,
where proceedings are often stressful. Id. In that sense, a
judge should not become involved in a personal conflict with
anyone in the courtroom,13 as it “tends . . . to undermine
judicial authority.” ABA Standards for Trial Judges § 6-3.4.
The need for judicial restraint in the exercise of
judicial power is heightened by the possibility that the court’s
words or conduct may be misunderstood by a party in the
proceeding.14 A judge should “be particularly careful by his or
her demeanor not to convey unintended messages . . . to the
participants in the trial process.” ABA Standards for Trial
Judges § 6-1.4 cmt. at 22. For example, with regard to the
right to testify, there may be circumstances where, in light of
(. . . continued)
the obligation to be patient with and courteous to all participants in the
process”).
13
In this case, the circuit court repeatedly told Kim not to lie;
asked Kim to be smart; reminded Kim that he was on probation, that he was the
accused, and that he was the one looking at imprisonment; and stated that it
did not want to hear any further statements about emotion, since Kim is a
grown man and thus should be able to control such emotion.
14
Kim may have misunderstood some of the court’s statements. In
response to the court’s question of whether Kim wanted to testify, Kim
stated, “Well, in your words I want to but I can’t, I don’t think I can, so
I’m not going to.”
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the interactions between the court and the defendant during
trial, the voluntariness of the defendant’s waiver may be
implicated. See Tachibana, 79 Hawaiʻi at 236 n.7, 900 P.2d at
1303 n.7 (noting that, “[i]n conducting the colloquy, the trial
court must be careful not to influence the defendant’s decision
whether or not to testify”). Consequently, in the interests of
the proper administration of criminal justice, a court should
exercise its authority in a restrained and dignified manner
while, at the same time, preserving order and decorum in
judicial proceedings. ABA Standards for Trial Judges § 6-3.5;
Johnson, 993 N.E.2d at 24.
V. CONCLUSION
The record in this case is insufficient to support a
determination that Kim’s waiver of the right to testify was
knowingly, intelligently, and voluntarily made. Kim’s response
to the circuit court during the ultimate Tachibana colloquy
indicated that he did not understand his right to testify, and
the court did not engage in an exchange that adequately
established, on the record, Kim’s understanding of that right.
This error was not harmless beyond a reasonable doubt,15 given
15
“Once a violation of the constitutional right to testify is
established, the conviction must be vacated unless the State can prove that
the violation was harmless beyond a reasonable doubt.” Han, 130 Hawaiʻi at
(continued . . .)
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that Lewis’s testimony was not entirely consistent and was not
corroborated.
Accordingly, the ICA Judgment on Appeal and the
circuit court Judgment of Conviction and Sentence are vacated,
and the case is remanded to the circuit court for further
proceedings.
Tae W. Kim /s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
(. . . continued)
93, 306 P.3d at 138 (quoting Tachibana, 79 Hawaiʻi at 240,
900 P.2d at 1307).
Under the harmless beyond a reasonable doubt standard, “[t]he relevant
question . . . is whether there is a reasonable possibility that error might
have contributed to [the] conviction.”
Id.,306 P.3d at 138 (quoting State
v. Schnabel, 127 Hawaiʻi 432, 450,
279 P.3d 1237, 1255 (2012)).
32
