State v. Torres ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-JUN-2022
07:45 AM
Dkt. 34 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOHNNY TORRES, also known as Johnny J. Torres
and/or Johnny Torres, Jr., Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FFC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
Defendant-Appellant Johnny Torres, also known as Johnny
J. Torres and/or Johnny Torres, Jr. (Torres), appeals from the
Judgment of Conviction and Sentence; Notice of Entry (Judgment),
entered on December 4, 2020, in the Family Court of the First
Circuit (Family Court).1/ Following a bench trial, Torres was
convicted of Refusal to Comply with a Lawful Order of a Police
Officer, in violation of Hawaii Revised Statutes (HRS)
§ 709-906(1) and (4).2/
1/
The Honorable Linda S. Martell presided.
2/
HRS § 709-906 (2014) provides, in relevant part:
(1) It shall be unlawful for any person . . . to physically
abuse a family or household member or to refuse compliance
with the lawful order of a police officer under subsection
(4). . . .
. . . .
(4) Any police officer, with or without a warrant,
shall take the following course of action, regardless of
whether the physical abuse or harm occurred in the officer's
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
On appeal, Torres contends that the Family Court
violated his constitutional right to testify by failing to
conduct a proper pre-trial advisement under State v. Lewis, 94
Hawai#i 292, 12 P.3d 1233 (2000), and a proper ultimate colloquy
under Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).
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 by the parties, we
resolve Torres's contentions as follows, and vacate the Judgment.
Torres contends that the pretrial advisement under
Lewis and the ultimate colloquy under Tachibana were deficient
because the Family Court failed to engage Torres in a true
colloquy to ensure he understood his right to testify.
The State concedes that the Family Court erred in
failing to conduct adequate Lewis and Tachibana colloquies, and
does not contend that the error was harmless. Although we are
not bound by it, we must also "give due consideration" to the
State's concession of error, as "[a] prosecutor's confession,
although not binding on an appellate court, is 'entitled to great
weight.'" State v. Eduwensuyi, 141 Hawai#i 328, 337, 409 P.3d
732, 741 (2018) (quoting Territory v. Kogami, 37 Haw. 174, 175
(Haw. Terr. 1945)).
The validity of a defendant's waiver of the right to
testify in a criminal case is a question of constitutional law
2/
(...continued)
presence:
. . . .
(b) If the person who the police officer reasonably
believes to have inflicted the abuse is eighteen
years of age or older, the police officer
lawfully shall order the person to leave the
premises for a period of separation, during
which time the person shall not initiate any
contact, either by telephone or in person, with
the family or household member. . .
. . . .
(e) If the person so ordered . . . returns to the
premises before the expiration of the period of
separation . . . , the person shall be placed
under arrest for the purpose of preventing
further physical abuse or harm to the family or
household member[.]
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reviewed by this court under the right/wrong standard. State v.
Celestine, 142 Hawai#i 165, 169, 415 P.3d 907, 911 (2018). In
State v. Martin, 146 Hawai#i 365, 463 P.3d 1022 (2020), the
Hawai#i Supreme Court summarized the relevant case law as
follows:
Our law protects both the right to testify and the
right not to testify. State v. Celestine, 142 Hawai #i 165,
169, 415 P.3d 907, 911 (2018). Tachibana v. State, 79
Hawai#i 226, 900 P.2d 1293 (1995), established the
requirement that when a defendant in a criminal case
indicates an intention not to testify, the trial court must
advise the defendant of the right to testify and must obtain
an on-the-record waiver of the right. 79 Hawai #i at 236,
900 P.2d at 1303. We stated that this advisement should
consist of informing the defendant (1) that they have a
right to testify, (2) that if they want to testify, no one
can prevent them from doing so, and (3) that if they
testify, the prosecution will be allowed to cross-examine
them. 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. We also
stated that in connection with the privilege against
self-incrimination, the defendant should also be advised (4)
that they have a right not to testify and (5) that if they
do not testify, then the jury can be instructed about that
right. Id. (citations omitted). In a bench trial,
defendants must be advised that if they exercise their right
not to testify, no inference of guilt may be drawn for
exercising this right, i.e., that a decision not to testify
cannot be used against a defendant by the judge in deciding
the case. State v. Monteil, 134 Hawai#i 361, 371-72, 341
P.3d 567, 577-78 (2014).
After Tachibana, we also held that a second component
of the Tachibana colloquy involves the court engaging in a
true "colloquy" with the defendant. Celestine, 142 Hawai #i
at 170, 415 P.3d at 912, citing State v. Han, 130 Hawai #i
83, 90-91, 306 P.3d 128, 135-36 (2013). This requires "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.'" Celestine,
142 Hawai#i at 170, 415 P.3d at 912 (citing Han, 130 Hawai #i
at 90, 306 P.3d at 135 (emphasis omitted)).
. . . .
A defendant's right to testify is violated when the
colloquy does not establish "an objective basis for finding
that the defendant knowingly, intelligently, and voluntarily
gave up" their right to testify. Han, 130 Hawai #i at 91,
306 P.3d at 136. Courts look to the totality of the facts
and circumstances to determine whether a waiver of the right
to testify was voluntarily and intelligently made. 130
Hawai#i at 89, 306 P.3d at 134.
Id. at 378-79, 463 P.3d at 1035-36 (footnotes and brackets
omitted).
Additionally, in Lewis, the supreme court adopted a
prospective requirement that, "prior to the start of trial, trial
courts must '(1) inform the defendant of his or her personal
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
right to testify or not to testify and (2) alert the defendant
that if he or she has not testified by the end of the trial, the
court will briefly question the defendant to ensure that the
decision not to testify is the defendant's own decision.'"
Monteil, 134 Hawai#i at 371, 341 P.3d at 577 (quoting Lewis, 94
Hawai#i at 297, 12 P.3d at 1238).
We find dispositive Torres's contention that the Family
Court failed to conduct a proper ultimate colloquy under
Tachibana. In particular, the Family Court failed to engage
Torres in a "true colloquy" before the defense rested.3/ Martin,
3/
After the State rested, the Family Court advised Torres as
follows:
THE COURT: . . . .
. . . Mr. Torres[,] . . . you have a constitutional
right to testify in your own defense.
Although you should talk with your attorney before
deciding whether or not to testify, it is your personal
right and no one can prevent you from testifying should you
choose to do so. But if you do choose to testify, you have
to know the prosecutor can ask you questions about your
testimony on cross-examination.
You also have a constitutional right to remain silent
and not to testify. If you choose not to testify, I can't
hold this against you in any way in deciding the case.
So we're at that point in the trial where I'm
questioning you whether you want to testify or not, and if
you wanna talk with your attorney, you can do that too. I'm
not trying to rush you. But you just have to be aware of
the colloquy, the questions. Okay?
Do you need to talk to [Defense Counsel]?
THE DEFENDANT: Yes, ma'am, Your Honor.
THE COURT: Okay. . . .
[Two-minute recess taken.]
. . . .
THE COURT: All right. Please be seated.
So, [Defense Counsel], what is your client going to
do?
[DEFENSE COUNSEL]: Judge, he would exercise his right
to remain silent.
THE COURT: Okay. So, Mr. Torres, this is your
choice, correct?
(continued...)
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146 Hawai#i at 378, 463 P.3d at 1035 (citing Celestine, 142
Hawai#i at 170, 415 P.3d at 912). Although the Family Court
advised Torres regarding his rights to testify and not to
testify, it failed to engage him in a verbal exchange to
ascertain his understanding of the proceedings and of his rights.
See id.
"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." Tachibana, 79 Hawai#i at 240, 900 P.2d at
1307. Here, the State does not contend, and we cannot conclude,
that the violation was harmless beyond a reasonable doubt. See
State v. Hoang, 94 Hawai#i 271, 279, 12 P.3d 371, 379 (App. 2000)
("In general, it is inherently difficult, if not impossible, to
divine what effect a violation of the defendant's constitutional
right to testify had on the outcome of any particular case.").
For these reasons, we vacate the Judgment of Conviction
and Sentence; Notice of Entry, entered on December 4, 2020, in
3/
(...continued)
THE DEFENDANT: Yes, ma'am.
THE COURT: And nobody's forcing you one way or
another?
THE DEFENDANT: Yes, ma'am.
THE COURT: And your mind is clear?
THE DEFENDANT: Yes, ma'am.
THE COURT: Okay. Very good.
All right.
[DEPUTY PROSECUTING ATTORNEY]: Your Honor, I'm sorry.
. . . [A]ren't there a couple more questions in the
Tachibana colloquy?
THE COURT: A couple more questions?
Okay. Is this your personal decision, Mr. Torres?
Not to testify, is that correct?
THE DEFENDANT: Yes, ma'am, Your Honor.
THE COURT: Okay. And is anybody forcing you,
threatening you, coercing you, or pressuring you not to
testify?
THE DEFENDANT: No, ma'am, Your Honor.
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the Family Court of the First Circuit. We remand the case for a
new trial and for further proceedings consistent with this
Summary Disposition Order.
DATED: Honolulu, Hawai#i, June 13, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Walter J. Rodby Chief Judge
for Defendant-Appellant.
Donn Fudo, /s/ Katherine G. Leonard
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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