NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUN-2023
07:51 AM
Dkt. 64 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RONALD RAMSEY HAYWARD, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH KOHALA DIVISION
(CASE NO. 3DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Ronald Ramsey Hayward appeals from
the "Judgment of Conviction & Sentence" entered by the District
Court of the Third Circuit, North Kohala Division, on
September 25, 2020.1 For the reasons explained below, we affirm.
On January 2, 2020, Hayward was charged by complaint
with one count of Assault in the Third Degree, in violation of
Hawaii Revised Statute (HRS) § 707-712(1)(a). Hayward pleaded
not guilty.
A bench trial was held on September 25, 2020. The
State called four witnesses: the complaining witness (CW); his
girlfriend; and two Hawai#i County Police Department (HCPD)
officers. Hayward testified in his own defense. The district
court found Hayward guilty as charged.
1
The Honorable Mahilani E.K. Hiatt presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Hayward filed a motion for new trial on October 5,
2020. Hayward argued that he received ineffective assistance
from his trial counsel. The district court denied the motion.
This appeal followed.
Hayward raises four points of error: (1) the criminal
complaint violated HRS § 805-1; (2) his arraignment violated
Hawai#i Rules of Penal Procedure (HRPP) Rules 5(b) and 10(a);
(3) the district court did not properly advise him of his rights
to testify and to not testify; and (4) the district court erred
by denying his motion for new trial.
(1) Hayward contends that the State's criminal
complaint violated HRS § 805-1.2 Whether a complaint complied
with an applicable statute and/or rule is a question of law we
review de novo. State v. Mortensen-Young, 152 Hawai'i 385, 392,
526 P.3d 362, 369 (2023).
Hayward argues that "the [deputy prosecuting attorney]
cannot be the 'complainant' for purposes of HRS § 805-1 because
he did not observe the alleged offense and this would render the
right of the offender to challenge the veracity of the accuser
meaningless." Hayward's argument is without merit. HRS § 805-1
applies only to criminal complaints used to obtain a penal
summons or arrest warrant. Mortensen-Young, 152 Hawai#i at 399,
526 P.3d at 376. Hayward was arrested by an HCPD officer at the
scene of the alleged assault. "[T]he requirements of HRS § 805-1
do not apply to complaints used to charge a defendant who has
already been arrested." Id. at 397,
526 P.3d at 374.
2
HRS § 805-1 (2014) provides, in relevant part:
Complaint; form of warrant. When a complaint is made to any
prosecuting officer of the commission of any offense, the
prosecuting officer shall examine the complainant, shall
reduce the substance of the complaint to writing, and shall
cause the complaint to be subscribed by the complainant
under oath, which the prosecuting officer is hereby
authorized to administer, or the complaint shall be made by
declaration in accordance with the rules of court.
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(2) Hayward contends that the State's case should be
dismissed because he "was not arraigned pursuant to HRPP Rule
5(b) and 10(a)." His argument is based solely on the premise
that the criminal complaint was fatally defective. The complaint
was not defective. Hayward's second point of error is without
merit.
(3) Hayward contends the district court violated his
constitutional rights because it "failed to advise [him] of his
right not to testify and explain the implications of waiving that
right prior to his decision to testify." The validity of a
defendant's waiver of constitutional rights in a criminal case is
a question of law that we review under the right/wrong standard.
State v. Torres, 144 Hawai#i 282, 288, 439 P.3d 234, 240 (2019).
Hayward's trial began at 1:01 p.m. on September 25,
2020. Hayward acknowledges that the district court "gave [him]
the prior-to-trial advisory on his rights to testify and not to
testify." He doesn't challenge the pretrial colloquy.
Later that day, the district court was informed that
Hayward intended to testify. At 1:58 p.m., the district court
engaged Hayward in the ultimate colloquy. The district court was
required to ensure that Hayward's waiver of his right to not
testify was knowing, intelligent, and voluntary. Torres, 144
Hawai#i at 294-95, 439 P.3d at 246-47. The colloquy was:
THE COURT: And you recall that we had a discussion at
the beginning of the trial about the fact that you have a
constitutional right to testify if you choose to do so as
well as a right not to testify, and the Court would only
listen, uh, would only consider the evidence that has been
admitted. You understand that?
THE DEFENDANT: Yes, I do.
. . . .
THE COURT: And you have any questions about what's
gonna happen if you testify as opposed to not testify?
THE DEFENDANT: I'm -- I'm ready.
THE COURT: You ready to go?
THE DEFENDANT: I'm ready.
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Hayward stated he remembered the pretrial colloquy.
During the pretrial colloquy, the court had informed Hayward, "If
you choose not to testify the Court cannot hold your silence
against you in deciding your case. You understand that?"
Hayward responded, "Yes, ma'am."
But during the ultimate colloquy the court did not
advise Hayward that a decision to not testify cannot be used by
the fact finder to decide his case. Torres, 144 Hawai#i at 290,
439 P.3d at 242. Without a specific prompt from the court during
the ultimate colloquy, Hayward may not have realized what he
didn't remember from the pretrial colloquy. We conclude the
ultimate colloquy was deficient.
We also conclude, however, that the error was harmless
beyond a reasonable doubt. "When assessing whether the error was
harmless, a crucial if not determinative consideration is the
strength of the prosecution's case on the defendant's guilt."
Torres, 144 Hawai#i at 291, 439 P.3d at 243 (cleaned up).
The State presented four witnesses at trial: the CW and
his girlfriend, both of whom identified Hayward as the person who
assaulted and beat CW; and two HCPD officers, who observed CW's
injuries and arrested Hayward at the scene.
Beside himself, Hayward called only CW during his casein-chief. CW described Hayward "attacking other vehicles" and
"pounding on people's windows[,]" "being irate threatening those
people that were in that vehicle[,]" and "pounding on both their
windows, driver and passenger side." Hayward was unable to
impeach CW.
The evidence against Hayward was overwhelming and
compelling. Because of the strength of the State's evidence, we
conclude that the district court's error in not completely
advising Hayward of his right to not testify was harmless beyond
a reasonable doubt. See Torres, 144 Hawai#i at 290-92, 439 P.3d
at 242-44.
(4) Hayward contends that the district court erred by
denying his motion for new trial. The only ground for Hayward's
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motion was that his trial counsel was ineffective because he
failed to subpoena four percipient witnesses to testify at trial.
We note that Hayward failed to comply with Hawai#i Rules of
Appellate Procedure Rule 28(a) ("If a brief raises ineffective
assistance of counsel as a point of error, the appellant shall
serve a copy of the brief on the attorney alleged to have been
ineffective."). We need not order that Hayward's appellate
counsel comply, however, because Hayward's contention lacks
merit.
"Ineffective assistance of counsel claims based on the
failure to obtain witnesses must be supported by affidavits or
sworn statements describing the testimony of the proffered
witnesses." State v. Richie, 88 Hawai#i 19, 39, 960 P.2d 1227,
1247 (1998) (citations omitted). Hayward has not presented
affidavits or sworn statements describing the testimony that
would have been given by any of the four witnesses he claims his
trial counsel should have subpoenaed for trial. He therefore
failed to show that his trial counsel was ineffective. The
district court did not err by denying Hayward's motion for new
trial based on ineffective assistance of counsel.
For the foregoing reasons, the "Judgment of
Conviction & Sentence" entered by the district court on
September 25, 2020, is affirmed.
DATED: Honolulu, Hawai#i, June 29, 2023.
On the briefs:
/s/ Katherine G. Leonard
Alen M. Kaneshiro, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Suzanna L. Tiapula, Associate Judge
Deputy Prosecuting Attorney,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
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