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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-MAY-2024
08:04 AM
Dkt. 122 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
ANIL R. JACKSON, also known as Anil Rohan Jackson,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Anil R. Jackson (Jackson) appeals
from the January 22, 2019 Judgment of Conviction and Sentence
(Judgment) and December 17, 2020 Order Denying Motion for New
Trial, both filed and entered by the Circuit Court of the First
Circuit (Circuit Court). 1 Following a jury trial, Jackson was
1 The Honorable Edward H. Kubo, Jr. entered the 2019 Judgment,
presided over the 2019 jury trial and the February 4, 2019 hearing on the
Motion for New Trial, and issued an oral ruling denying the motion. The
Honorable Kevin A. Souza filed the December 17, 2020 Order Denying Motion for
New Trial.
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found guilty of Disorderly Conduct in Count 1 and Harassment in
Count 2; found not guilty of Resisting Arrest in Count 3; and
sentenced to thirty days imprisonment for each count to run
concurrently.
On appeal, Jackson raises the following points of
error (POEs), 2 contending that the Circuit Court erred by:
(1) denying Jackson's motions for judgment of acquittal (MJOAs);
(2) failing to conduct a sufficient pre-trial Lewis advisement
and Tachibana colloquy of Jackson; (3) convicting and sentencing
Jackson despite insufficient evidence of both counts;
(4) sustaining Plaintiff-Appellee State of Hawaiʻi's (State)
objection to defense counsel's "hypothetical" during closing
argument and denying Jackson's related motion for a new trial on
this issue; (5) denying Jackson's request to continue
sentencing; (6) abusing its discretion in the sentence it
imposed; and (7) denying Jackson bail pending appeal in
violation of Hawaii Revised Statutes (HRS) § 804-4(a).
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we address the
first three POEs and vacate and remand for a new trial.
The Complaint charged Jackson in Count 1 with
Disorderly Conduct as a petty misdemeanor under HRS §
711-1101(1)(a) and (3), stating that Jackson, "with intent to
cause physical inconvenience or alarm by a member or members of
the public, or recklessly creating a risk thereof, did engage in
fighting or threatening, or in violent or tumultuous behavior,
with intent to cause substantial harm or serious
inconvenience[.]" Count 2 charged Jackson with Harassment in
2 We have restated and reordered Jackson's POEs for clarity.
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violation of HRS § 711-1106(1)(a), stating that Jackson "with
intent to harass, annoy, or alarm Ross K. K. Borges, did strike,
shove, or otherwise touch Ross K. K. Borges in an offensive
manner[.]" The pertinent trial evidence reflected that Honolulu
Police Department (HPD) officers responded to an argument
reported at an alleyway located on 2260 Kuhio Avenue in Waikiki.
There, Jackson was "wrestling with another unidentified male"
and "rolling around on the ground." HPD officers ordered the
gathered crowd to disperse, and Jackson complied; the officers
then observed a still-agitated Jackson "shove" a "random
bystander . . . out of the way" and place "his right forearm" on
uniformed HPD Officer Ross Borges's (Officer Borges) chest "to
shove him out of the way." Officer Borges, the complainant in
the Harassment charge in Count 2, then placed Jackson under
arrest.
(1) The Circuit Court did not err in denying
Jackson's MJOAs.
Jackson raises two MJOA denials as error--one made
after the State's opening statement, and the second at the close
of the State's case-in-chief. As to the first MJOA made after
the State's opening statement, Jackson argues the State "failed
to establish venue" when it referenced "Waikiki" rather than the
"City and County of Honolulu" in its opening statement, and the
MJOA should have been granted. 3 Jackson did not argue below that
"Waikiki" was insufficient to establish venue, 4 and this argument
3 Jackson's MJOA argument based on the opening statement
contradicts the Circuit Court's instruction to the jury immediately preceding
the opening statement, that "[o]pening statements are not evidence[.]"
4 The record reflects that Jackson's counsel argued that "[t]here
was no reference to the location" at which the incident occurred except for a
bar's name, "Alley Cats." The Circuit Court pointed out the State's
reference to "Waikiki[,]" to which Jackson's counsel responded that he did
not "recall" the term "Waikiki" and that "if there was no reference to
Waikiki, then that's my motion." (Emphasis added.)
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is waived. See State v. Hoglund, 71 Haw. 147, 150,
785 P.2d
1311, 1313 (1990) ("Generally, the failure to properly raise an
issue at the trial level precludes a party from raising that
issue on appeal." (citation omitted)).
As to the second MJOA made after the State's case-inchief, Jackson argues there was "insufficient evidence [ ]
presented to support a prima facie case as to intent" for both
Counts 1 and 2. This argument lacks merit.
When reviewing a MJOA, this court must determine
"whether, upon the evidence viewed in the light most favorable
to the prosecution and in full recognition of the province of
the trier of fact, the evidence is sufficient to support a prima
facie case so that a reasonable mind might fairly conclude guilt
beyond a reasonable doubt." State v. Jenkins, 93 Hawai‘i 87, 99,
997 P.2d 13, 25 (2000) (citations omitted). "Sufficient
evidence to support a prima facie case requires substantial
evidence as to every material element of the offense charged."
Id. (citations omitted).
With regard to Count 1, Disorderly Conduct, Jackson
was charged under HRS § 711-1101(1)(a) (2014) for engaging in
"fighting or threatening, or in violent or tumultuous behavior"
"with intent to cause physical inconvenience or alarm by a
member or members of the public, or recklessly creating a risk
thereof" and specifically charged under subsection (3), with
doing so with the "intention to cause substantial harm or
serious inconvenience" as a petty misdemeanor offense. The
evidence reflected that the officers observed Jackson
"wrestling" on the ground with another male; after an order to
disperse, Jackson walked down an alleyway "yelling and
screaming," "agitated," "swearing," "threatening," and
"challenging other people to fight"; Jackson then "shoved" a
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"random bystander" "fairly violently" "with enough force to
clear [the bystander] very easily out of his path of travel[,]"
while there were "upwards of 20" people in the area who were
dispersing. Viewing this evidence in the light most favorable
to the State, there was sufficient evidence to support a prima
facie case that Jackson engaged in the prohibited conduct with
intent to cause substantial harm or serious inconvenience to a
member or members of the public under HRS § 711-1101(1)(a) and
(3). See Jenkins, 93 Hawaiʻi at 99, 997 P.2d at 25. The Circuit
Court did not err in denying the MJOA on Count 1.
With regard to Count 2, Harassment, Jackson was
specifically charged under HRS § 711-1106(1)(a) (2014), for
striking, shoving, or otherwise touching Officer Borges "in an
offensive manner" with "intent to harass, annoy, or alarm" him.
The evidence reflected that Jackson, while "agitated[,]" "very
tense[,]" and "using threatening language[,]" put his right
forearm on the officer's chest and "violently" shoved the
officer "out of his way." Viewing this evidence in the light
most favorable to the State, there was sufficient evidence to
support a prima facie case that Jackson engaged in the
prohibited conduct of shoving Officer Borges with intent to
harass, annoy, or alarm him under HRS § 711-1106(1)(a). See id.
The Circuit Court did not err in denying the MJOA on Count 2.
(2) The Circuit Court's Tachibana colloquy was
defective, and the error was not harmless beyond a
reasonable doubt.
Jackson argues the Circuit Court's pretrial advisement
was too detailed and "confusing," causing Jackson to not
testify; the Tachibana colloquy was defective because it was
conducted "at the close of [the State]'s case-in-chief" rather
than "at the close of trial"; and alternatively, the Tachibana
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colloquy was substantively deficient. We address Jackson's last
argument, as it is dispositive.
Jackson argues that the Circuit Court violated
Tachibana by giving "a block warning" that was "truncated," and
by failing to go over "each individual right and/or waiver with
[Jackson] and ask[ ] for affirmative understanding of said
right/waiver"; and that these failures rendered Jackson's waiver
of the right to not testify "clearly insufficient." This
argument has merit.
"The validity of a defendant's waiver of
constitutional rights in a criminal case is a question of law
under the state and federal constitutions." State v. Torres,
144 Hawaiʻi 282, 288, 439 P.3d 234, 240 (2019) (citations
omitted). "We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard."
Id.
(cleaned up).
The Circuit Court conducted the Tachibana colloquy as
follows:
THE COURT: Now, let's get to Tachibana.
Mr. Jackson, as I -- as I discussed with you before
the start of trial, you have a constitutional right to
testify in your own defense. Although you should consult
with your lawyer regarding the decision to testify, it is
your decision and no one can prevent you from testifying
should you choose to do so. If you decide to testify, the
prosecutor will be allowed to cross-examine you.
You also have a constitutional right not to testify
and to remain silent. If you choose not to testify, the
jury will be instructed by me that it cannot hold your
silence against you in deciding your case.
Do you remember us discussing this at the very
beginning of the -- of the trial?
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[JACKSON]: I do, Your Honor.
THE COURT: And you remember all the questions I
asked, and I even broke it down into individual sentences;
right?
[JACKSON]: Yes, sir.
THE COURT: And we went over it together as to what
you -- how you interpret each sentence?
[JACKSON]: Yes, we did.
THE COURT: Now, do you have any questions pertaining
to these rights which you do possess at this trial?
[JACKSON]: Currently I do not.
THE COURT: Okay. Is [sic] there any questions that
you may have about these rights that I can answer for you?
[JACKSON]: Not at this moment.
THE COURT: Okay. Now, have you been able to talk to
your attorney about the pros and cons, the strengths and
weaknesses of testifying at this trial?
[JACKSON]: Not fully, Your Honor.
THE COURT: Would you like more time to do so?
[JACKSON]: Certainly.
THE COURT: Okay. I'm going to give you another five
minutes to discuss the matter, pros and cons. . . .
[(Recess taken for defense counsel and Jackson to confer.)]
. . . .
[DEFENSE COUNSEL]: . . . And based on that
discussion, Mr. Jackson will choose not to testify.
. . . .
THE COURT: You thoroughly discussed this matter with
your attorney?
[JACKSON]: I have.
THE COURT: And after talking to your attorney, it is
[sic] your decision that you do not wish to -- to testify
in this case?
[JACKSON]: That is correct.
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THE COURT: Now, if you need more time to think and to
discuss this, I will give you more time.
[JACKSON]: I understand, Your Honor. And I'm
confident in my current decision.
THE COURT: Are you certain in your decision that
that's what you want to do based on the advice and
considering all the facts and circumstances?
[JACKSON]: Yes.
THE COURT: Okay. Is your decision the product of your
own free will then?
[JACKSON]: It is.
THE COURT: Is anyone threatening, pressuring, or
forcing you to make this decision?
[JACKSON]: They are not.
THE COURT: Okay. So bottom line, as Rufus Philburn
(phonetic) or whatever his name is on that television show
-- is that your final answer?
[JACKSON]: Final answer, sir.
THE COURT: Final answer. Okay. Okay. . . .
(Emphases added.) The colloquy did not comply with
Tachibana.
There are two components of a Tachibana colloquy:
(1) "informing the defendant of fundamental principles
pertaining to the right to testify and the right not to
testify"; and (2) "engaging in a true 'colloquy' with the
defendant[,]" which "consists of a verbal exchange between the
judge and the defendant 'in which the judge ascertains the
defendant's understanding of the proceedings and of the
defendant's rights.'" State v. Celestine, 142 Hawaiʻi 165, 170,
415 P.3d 907, 912 (2018) (cleaned up) (quoting State v. Han,
130 Hawai‘i 83, 90-91,
306 P.3d 128, 135-36 (2013)).
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In Celestine, where the district court simply advised
the defendant of her "Tachibana rights" "without any discussion
or exchange to ascertain the defendant's understanding of the
proceedings and of the defendant's rights," the supreme court
concluded there was not a "sufficient verbal exchange . . . to
ascertain whether her waiver of the right to testify was based
on her understanding of the principles related by the district
court"; and thus, the colloquy was deficient because the record
did not demonstrate a knowing, intelligent, and voluntary waiver
of the right to testify. Id. at 171-72,
415 P.3d at 913-14
(cleaned up); accord Han, 130 Hawaiʻi at 90-91,
306 P.3d at 135-
36 (finding colloquy defective where the family court informed
defendant of the Tachibana rights but failed to obtain a
response from defendant reflecting his understanding of these
principles and instead "simply continued on with the
advisement"); State v. Pomroy, 132 Hawai‘i 85, 93-94,
319 P.3d
1093, 1101-02 (2014) (finding colloquy defective where district
court did not engage in an exchange with defendant to ascertain
his understanding of the right to testify and right to not
testify, and instead, "recited a litany of rights" and then
asked defendant "if he 'understood that'" without clarifying
"which right 'that' referenced").
Here, the record does not reflect a true colloquy or
exchange in which the Circuit Court ascertained Jackson's
understanding of his rights. Instead, the Circuit Court recited
a "litany of rights" as in Pomroy, 132 Hawai‘i at 93, 319 P.3d at
1101, then asked Jackson if he "remember[ed]" a prior discussion
of "this at the very beginning" of trial; stating that they
"went over it together" as to "how you interpret each
sentence[.]" (Emphases added.) This was not sufficient where
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the record contains no clarification as to which right was
previously discussed with Jackson. The Circuit Court never
asked or ascertained whether Jackson understood each right.
Asking Jackson whether he had "any questions . . . about these
rights" does not constitute an ascertainment of Jackson's
understanding of each right. See Celestine, 142 Hawaiʻi at 170,
415 P.3d at 912. "The constitutional right to testify is
violated when the Tachibana colloquy is inadequate to provide an
'objective basis' for finding the defendant 'knowingly,
intelligently, and voluntarily' relinquished his or her right to
testify." Id. at 171,
415 P.3d at 913 (citation omitted). The
record does not contain an express finding by the Circuit Court
that Jackson knowingly, intelligently, and voluntarily waived
his right to testify, nor does this record support such a
finding. See
id.
The State argues, inter alia, that the colloquy was
sufficient because the Circuit Court "had a thorough discussion
with Jackson in the Lewis advisement and Jackson affirmatively
acknowledged that he recalled the discussion." In State v.
Eduwensuyi, the Hawaiʻi Supreme Court held that it is "inherently
problematic" to assume that a "pretrial advisement can serve as
a substitute for deficiencies in the ultimate colloquy."
141 Hawaiʻi 328, 335, 409 P.3d 732, 739 (2018). The supreme
court explained that "the commencement of the trial, is an event
where a defendant may be anxious or nervous and not listening
effectively"; that "the defendant is told that the pretrial
advisement is preliminary in nature and that the subject matter
will be addressed fully at a later point"; and that the court
cannot assume that "the defendant is able to correctly recall a
pretrial advisory at the end of trial."
Id.
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"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. The relevant question 'is whether there is
a reasonable possibility that the error might have contributed
to the conviction.'" Celestine, 142 Hawaiʻi at 173, 415 P.3d at
915 (cleaned up). From our review of the record, we cannot
conclude that the Circuit Court's error was harmless because
Jackson's testimony, had he given it, could have established
reasonable doubt that he committed either offense he was
convicted of. See
id. Thus, Jackson's convictions must be
vacated, and we next consider whether there is sufficient
evidence to support a retrial.
(3) There was sufficient evidence presented to support
the convictions for both offenses.
Jackson contends in his point of error that there was
insufficient evidence to support his conviction on both counts.
"It is well-settled that, even where this court finds trial
error, challenges to the sufficiency of the evidence must always
be decided on appeal. This is because the double jeopardy clause
bars retrial of a defendant once a reviewing court has found the
evidence at trial to be legally insufficient to support a
conviction." State v. Kalaola, 124 Hawaiʻi 43, 59, 237 P.3d
1109, 1125 (2010) (cleaned up); see Pomroy, 132 Hawaiʻi at 94,
319 P.3d at 1102 (addressing evidentiary sufficiency after
finding that the violation of constitutional right to testify
was not harmless beyond a reasonable doubt). In reviewing the
sufficiency of evidence on appeal, we apply the same standard
for review of a MJOA. See State v. Bowman, 137 Hawaiʻi 398, 405,
375 P.3d 177, 184 (2016). For the same reasons set forth supra
affirming the denial of Jackson's MJOA, which we incorporate
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here, there was sufficient evidence viewed in the light most
favorable to the State, supporting Jackson's convictions for
both Disorderly Conduct and Harassment. See Jenkins, 93 Hawai‘i
at 99, 997 P.2d at 25. Thus, the prohibition against double
jeopardy does not bar a retrial in this case. See Kalaola,
124 Hawai‘i at 59,
237 P.3d at 1125.
In light of our resolution, we need not address
Jackson's remaining points of error.
For the foregoing reasons, the January 22, 2019
Judgment of Conviction and Sentence and December 17, 2020 Order
Denying Motion for New Trial are vacated, and we remand for a
new trial.
DATED: Honolulu, Hawai‘i, May 29, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Kai Lawrence, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Sonja P. McCullen, Associate Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
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