*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-29688
31-JAN-2014
10:19 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
________________________________________________________________
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
HENRY POMROY, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-29688
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29688; Report No. C06030300 (3P207-738))
January 31, 2014
ACOBA, McKENNA, AND POLLACK, JJ.; WITH RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY MCKENNA, J.
I. Introduction
At issue in this appeal is whether Petitioner/Defendant-
Appellant Henry Pomroy (“Pomroy”) was adequately informed of his
right to testify. Pomroy presents the following questions on
certiorari:
A. Whether the Intermediate Court of Appeals determined in
error that the district court’s failure to advise petitioner
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
prior to start of trial of his right to testify did not
warrant reversal of the trial court’s judgment of
conviction.
B. Whether the Intermediate Court of Appeals determined in
error that the district court’s Tachibana [ 1 ] colloquy was
not defective and petitioner’s waiver of right to testify
was valid.
C. Whether the Intermediate Court of Appeals should have
rejected the trial court’s finding that the testimony of the
complaining witness was credible .2
We hold that the district court’s right-to-testify colloquy was
defective. As a result, the district court did not obtain an on-
the-record waiver of the right to testify from Pomroy. Pomroy
has thus proven a constitutional violation of his right to
testify, and under the circumstances of this case, such violation
cannot be considered harmless beyond a reasonable doubt. We
further hold that the prohibition against double jeopardy does
not preclude a retrial in this case, as substantial evidence
supported Pomroy’s conviction.
1
Referring to State v. Tachibana, 79 Hawai#i 226, 236, 900 P.2d 1293,
1303 (1995), which held, “[I]n order to protect the right to testify under the
Hawai’i 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.” (Footnotes omitted).
This court stated that “the ideal time to conduct the colloquy is immediately
prior to the close of the defendant’s case.” 79 Hawai#i at 237, 900 P.2d at
1304.
2
Although not specifically raised as a question, Pomroy’s certiorari
application also asserts that the Intermediate Court of Appeals erred in
concluding there was substantial evidence to support his conviction.
Therefore, we address this issue on certiorari. Based on our decision to
vacate the conviction and remand for a new trial, however, we need not and do
not address Question C.
2
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
II. Background
A. Trial
Pomroy was charged by Complaint with “intentionally,
knowingly or recklessly caus[ing] bodily injury to another
person, CLARK LUKENS, thereby committing the offense of Assault
in the Third Degree, in violation of Section 707-712(1)(a),
Hawai#i Revised Statutes, as amended.”3 He waived his right to a
trial by jury.
At the bench trial,4 the district court did not conduct a
Tachibana colloquy with Pomroy prior to the start of trial. The
State called as its first witness Clark Lukens, the complaining
witness. Lukens testified that he has required the use of
crutches since 1987 due to hip dysplasia. Lukens testified that
Pomroy was a fellow tenant at the Hale Moana Apartment Complex in
Hilo. As to the assault in question, Lukens testified that while
he was in the backyard with a landscaper and a board member of
the apartment complex, Pomroy approached “screaming,” in an
“extremely aggravated and aggressive” manner. Pomroy bumped his
3
Hawai#i Revised Statutes (“HRS”) 707-712(1)(a) (1993) provides, “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 § 707-700 (1993) defines “bodily injury” as “physical
pain, illness, or any impairment of physical condition.”
4
The Honorable Barbara T. Takase presided.
3
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
chest against Lukens and accused Lukens of attempting to have
Pomroy evicted from the apartment complex.
The interaction lasted five minutes, then Pomroy left, so
Lukens decided to enter the elevator to return to his (Lukens’)
apartment. Lukens testified that after he entered the empty
elevator, Pomroy suddenly appeared and forced himself into the
elevator, and the door closed behind him, leaving Lukens alone in
the elevator with Pomroy. During the entire ride to the seventh
floor, Pomroy, who had pushed Lukens into the corner of the
elevator, used his forearms and elbows to strike Lukens about 50
or 60 times in the throat, neck, and shoulders. Lukens recalled
Pomroy saying “he [Pomroy] was gonna kick [Lukens’] ass, he was
gonna beat the F’n shit outta [Lukens], he was gonna teach
[Lukens] manners.” When the elevator doors opened on the seventh
floor, Pomroy “ceased the attack” and “immediately sprung back
off” of Lukens. Lukens’ wife was waiting for him at the elevator
landing on the seventh floor and helped Lukens out. Lukens
testified that he felt pain, which he described as a seven or
eight on a ten-point scale, because Pomroy was a “big guy” who
was hitting “with all his might,” “trying to hurt [Lukens],” and
hitting “[a]s hard as he could.” Lukens also testified he had no
injuries from that day.
4
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
The State then called Lukens’ wife, Paulette Berbelis, who
testified that she had been waiting outside the elevator on the
seventh floor for Lukens after the landscaper had called her to
ask if Lukens was okay. Berbelis heard Pomroy screaming and
yelling inside the elevator. As the elevator doors opened,
Berbelis saw Pomroy “jump away” from Lukens, while Lukens was
“pushed against” against the elevator wall. Berbelis observed
Pomroy to be “hepped up” or “aggressive,” while Lukens appeared
“[s]haken up quite a bit.” Lukens complained to her of pain in
his chest and neck.
The State then called landscaper Robert Robbins, who
testified that Pomroy had been upset and yelling in the backyard
about people cutting down trees. Lukens then approached Robbins
and Pomroy and told Pomroy to leave Robbins alone. At that
point, Pomroy and Lukens continued their conversation, with
Pomroy still angry, and Lukens keeping his distance. Robbins
then saw both head toward the foyer (where the elevator is
located) and heard “excessive banging” coming from the elevator
shaft, which he thought was “[n]othing human. Just mechanical.”
The State then called Hawai#i County Police Department
police officer Jeremy Kubojiri, who testified that he interviewed
Lukens after the altercation. Kubojiri said Lukens was “shaken
5
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
up” and complaining of pain in his chest. Kubojiri observed no
“visible injuries” to Lukens, and Lukens refused medical
assistance.
The State then called Hawai#i County Police Department
police officer Malia Bohol, who testified that she interviewed
Pomroy after the altercation. Bohol testified that Pomroy told
her that both he and Lukens approached Robbins, who was cutting
down a tree with a chainsaw and leaving the debris in a pond.
Lukens was yelling at an unknown person to turn off the chainsaw.
Pomroy rode with Lukens in the elevator but did not “put his
hands on Mr. Lukens in any way.” Rather, Lukens told Pomroy,
“Make your move.” Pomroy exited the elevator and assisted a
woman who had gotten locked out of her apartment.
The State then rested its case. Immediately thereafter,
defense counsel stated, “We’ll rest too, Your Honor.” At that
point, the district court and Pomroy engaged in the following
colloquy:
THE COURT: Alright. Mr. Pomroy, before your attorney
[rests the defense’s case], let me advise you. You have the
right to testify on your own behalf. That decision is yours
and yours alone. If you choose to testify you will be
subject to cross-examination by the state. If you choose
not to testify, I cannot hold that against you. But the
only evidence I will have is what the State has presented,
unless you have other witnesses; you understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: Alright. Is it your choice to testify or not?
6
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
THE DEFENDANT: I think I have already said what has
happened, yeah. I don’t have to testify.
THE COURT: Alright. I don’t know what you mean by “I’ve
already said” because --
THE DEFENDANT: In my report, when I made it two years ago,
what had happened. That’s pretty much what it is.
THE COURT: So you’re talking about what the officer
testified to? Because you understand the police report is
not in evidence. You understand that?
THE DEFENDANT: I don’t understand what you’re saying.
(Discussion between Counsel and Defendant)
THE COURT: Alright.
THE DEFENDANT: I don’t need any testimony I guess.
THE COURT: Your choice not to testify?
THE DEFENDANT: Yes, ma’am.
The defense then rested.
The district court heard closing arguments then specifically
found Lukens’ testimony to be credible and corroborated by
Berbelis’ testimony. The district court stated there was no
other credible evidence contradicting Lukens’ and Berbelis’
testimony. The district court did find bodily injury and stated
it was not necessary for the State to show Lukens suffered from
bruises or redness or that he required medical attention. The
district court therefore found that the State had proven its case
beyond a reasonable doubt.
Pomroy filed a Motion for New Trial. He argued that the
district court failed to advise him of his right to testify
before the start of trial. He also argued that, although the
district court advised him of his right to testify immediately
prior to the close of the defense’s case, it did not question him
7
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
enough to ensure that he adequately understood the decision not
to testify.
The State opposed the Motion for New Trial, arguing that the
trial transcript “indicate[d Pomroy] was informed of his right to
testify or not to testify,” Pomroy had a discussion with counsel
after being informed of his rights, and Pomroy then elected not
to testify after being informed of his rights.
The district court denied the Motion for New Trial and filed
its Judgment of Conviction and Sentence, which found Pomroy
guilty as charged and sentenced him to a year of probation,
imprisonment of 180 days (with 90 days stayed), a $55 Crime
Victim Compensation Fund fine, and a $75 Probation Fee. Pomroy
timely appealed.
B. Appeal
Before the ICA, Pomroy first argued that his conviction was
supported by insufficient evidence. He argued that Lukens’
testimony of being struck repeatedly about the neck, chest, and
shoulders was contradicted by other testimony that there was no
evidence of injury and no request for medical attention. Pomroy
argued that Lukens was, therefore, not credible.
Pomroy next argued (1) that the district court did not
inform him of his right to testify prior to trial; and (2) at the
8
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
close of the State’s case, when the district court informed
Pomroy of his right to testify, the district court “failed to
ensure that Mr. Pomroy adequately understood his right to testify
and the possible consequences of his decision not to testify,”
given the “tentative nature of Mr. Pomroy’s responses and his
continuing apparent mistaken belief that the Court had received
sufficient evidence from his side. . . .” Pomroy argued that if
the State was unable to show that the inadequate Tachibana
colloquy was harmless beyond a reasonable doubt, then Pomroy’s
conviction must be vacated.
2. The State’s Answering Brief
In its Answering Brief, the State responded only to Pomroy’s
second point of error. The State conceded that the district
court did not conduct a prior-to-trial Tachibana colloquy with
Pomroy, which is contrary to the mandate in State v. Lewis, 94
Hawai#i 292, 297, 12 P.3d 1233, 1238 (2000):
[T]rial courts ‘prior to the start of trial, [shall] (1)
inform the defendant of his or her personal 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 him or her to ensure that the decision
not to testify is the defendant’s own decision.
(Footnote omitted). The State further conceded that it could not
“make a good faith argument that the error committed by the trial
court . . . was harmless beyond a reasonable doubt.” To the
9
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
State, under the totality of the circumstances existing at trial,
where the only evidence before the district court had come from
the State, had the district court complied with Lewis and advised
Pomroy of his right to testify prior to trial, Pomroy might have
testified and might have presented evidence establishing
reasonable doubt that he committed assault. The State concluded
with a request that the ICA reverse Pomroy’s conviction. Pomroy
did not file a Reply Brief.
3. The ICA’s Memorandum Opinion
The ICA5 rejected Pomroy’s points of error and affirmed his
conviction. State v. Pomroy, No. 29688 (App. Dec. 26, 2012)(mem.
op.) at 9, 11, 12, 14. As to Pomroy’s first point of error (that
insufficient evidence supported his conviction), the ICA held (1)
that it was within the district court’s province to determine
that Lukens’ testimony was credible; and (2) that the evidence,
when viewed in the light most favorable to the State, showed that
Lukens suffered physical pain, which constitutes “bodily injury”
for the purpose of proving assault in the third degree in
violation of HRS § 707-712(1)(a); evidence of bruising, redness,
or other marks on Lukens’ body was not required. Pomroy, mem.
op. at 11-12.
5
The ICA panel consisted of Chief Judge Craig H. Nakamura and Associate
Judges Daniel R. Foley and Alexa D. M. Fujise.
10
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
As to the first part of Pomroy’s second point of error (that
the district court failed to advise Pomroy of his right to
testify prior to trial), the ICA first set aside the State’s
concession of error as “not well taken.” Pomroy, mem. op. at 10
n.5. The ICA reasoned, “The State applied a harmless beyond a
reasonable doubt standard of review [to the Lewis error], whereas
the correct standard requires Pomroy to demonstrate actual
prejudice.” Id. Although the ICA recognized that the district
court failed to engage Pomroy in the prior-to-trial Tachibana
colloquy, it held that Pomroy had not shown actual prejudice.
Pomroy, mem. op. at 10.
As to the second part of Pomroy’s second point of error
(that the district court failed to ensure that Pomroy’s waiver of
his right to testify was intelligent, knowing and voluntary
during the colloquy conducted immediately prior to the close of
Pomroy’s case), the ICA held that (1) the district court fully
advised Pomroy of his right to testify, and (2) “[a]ny confusion
held by Pomroy over the evidentiary difference between the
officer’s trial testimony regarding Pomroy’s statement and the
police report was for Pomroy’s counsel to explain, and the record
indicates that Pomroy’s counsel did discuss this issue with
Pomroy.” Pomroy, mem. op at 9, 10.
11
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
III. Discussion
On certiorari, Pomroy argues that the ICA erred (1) in
determining that the district court’s failure to advise him of
his right to testify prior to trial did not warrant reversal of
the district court’s judgment of conviction; and (2) in
determining that the district court’s Tachibana colloquy, given
at the close of the State’s case, was not defective and that
Pomroy’s waiver of his right to testify was valid. Pomroy’s
arguments are persuasive.
A. Advisement of, and Waiver of, The Right to Testify
1. State v. Tachibana
In Tachibana, 79 Hawai#i 226, 900 P.2d 1293, we examined the
defendant’s right to testify. We first noted that the right to
testify is guaranteed by the United States Constitution’s Fifth
Amendment guarantee against compelled testimony, Sixth Amendment
guarantee of compulsory process, and Fourteenth Amendment
guarantee of due process; the Hawai#i Constitution’s parallel
guarantees under Article I, Sections 10, 14, and 5, respectively;
and HRS § 801-2 (1993)’s statutory protection of the right to
testify, which states, “In the trial of any person on the charge
of any offense, he shall have a right . . . to be heard in his
defense.” 79 Hawai#i at 231-32, 900 P.2d at 1298-99 (citing
12
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
State v. Silva, 78 Hawai#i 115, 122-23, 890 P.2d 702, 709-10
(App. 1995)). The decision to testify ultimately belongs to the
defendant. See 79 Hawai#i at 232, 900 P.2d at 1299.
We held, “[I]n order to protect the right to testify under
the Hawai#i 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 Hawai#i at 236, 900 P.2d at 1303 (footnote
omitted). In a footnote, we stated the purpose and substance of
the right-to-testify colloquy as follows:
In conducting the colloquy, the trial court must be careful
not to influence the defendant’s decision whether or not to
testify and should limit the colloquy to advising the
defendant
that he [or she] has a right to testify,
that if he [or she] wants to testify that
no one can prevent him [or her] from doing
so, [and] that if he [or she] testifies
the prosecution will be allowed to cross-
examine him [or her]. In connection with
the privilege against self-incrimination,
the defendant should also be advised that
he [or she] has a right not to testify and
that if he [or she] does not testify then
the jury can be instructed about that
right.
79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7 (citations omitted).
As to when the colloquy must be conducted, we noted that
“the ideal time to conduct the colloquy is immediately prior to
the close of the defendant’s case.” 79 Hawai#i at 237, 900 P.2d
13
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
at 1304. We also encouraged courts to give the colloquy prior to
the start of trial:
[A]lthough the ultimate colloquy should be conducted after
all evidence other than the defendant’s testimony has been
received, it would behoove the trial court, prior to the
start of trial, to (1) inform the defendant of his or her
personal 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 him or her
to ensure that the decision not to testify is the
defendant’s own decision. Such an early warning would
reduce the possibility that the trial court’s colloquy could
have any inadvertent effect on either the defendant’s right
not to testify or the attorney-client relationship.
79 Hawai#i at 237 n.9, 900 P.2d at 1304 n.9.
2. State v. Lewis
In Lewis, 94 Hawai#i 292, 12 P.3d 1233, we revisited
footnote 9 from Tachibana, which recommended a prior-to-trial
colloquy on the right to testify. The defendant in that case
(“Lewis”) did testify in his defense. 94 Hawai#i at 294, 12 P.3d
at 1235. The trial court, however, had not engaged him in a
colloquy on his right to testify, or to not testify, prior to
trial. Id. We held that a Tachibana colloquy was not required
when a defendant has decided to testify, and that no prior-to-
trial Tachibana colloquy was therefore required in Lewis’s case.
Prospectively, however, we mandated that “trial courts ‘prior to
the start of trial (1) inform the defendant of his or her
personal right to testify or not to testify and (2) alert the
14
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
defendant that, if he or she has not testified by the end of the
trial, the court will briefly question him or her to ensure that
the decision not to testify is the defendant’s own decision.’”
94 Hawai#i at 297, 12 P.3d at 1238 (footnote omitted).
We then noted, “Because we view this prior-to-trial
advisement as incidental to the ‘ultimate colloquy,’ any claim of
prejudice resulting from the failure of the trial court to give
it must meet the same ‘actual[] prejudice[]’ standard applied to
violations of the colloquy requirement.” Id. (citing Tachibana,
79 Hawai#i at 237, 900 P.2d at 1304). See also State v. Han, 130
Hawai#i 83, 89, 306 P.3d 128, 134 (2013)(“On appeal, the pre-
trial advisement is reviewed for ‘actual prejudice.’”)(citation
omitted).
B. Application of Tachibana and Lewis to Pomroy’s Appeal
1. The Omission of the Prior-to-Trial Tachibana
Colloquy
On certiorari, Pomroy argues that the ICA erred in finding
that he had not shown actual prejudice from the omission of the
prior-to-trial Tachibana colloquy. Pomroy argues that he was
actually prejudiced “by loss of reflection and measured
consideration of his option to testify or not during the
presentation of the State’s case.” Further, he argues that
15
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
actual prejudice is evident in the district court’s observation
that “[n]o other credible evidence” existed to rebut the State’s
witnesses’ testimony; had Pomroy testified, he could have
presented credible, conflicting evidence.
In this case, however, we need not determine whether the
absence of the prior-to-trial Tachibana colloquy actually
prejudiced Pomroy, because we hold that the ultimate Tachibana
colloquy was defective, and, therefore, the record does not
reflect that Pomroy intelligently, knowingly and voluntarily
waived the right to testify. See Han, 130 Hawai#i at 89, 306
P.3d at 134 (“In holding that the failure to properly conduct the
Tachibana colloquy was harmful error, infra, the issue of whether
Petitioner could demonstrate ‘actual prejudice’ with respect to
the pre-trial colloquy need not be addressed here.”).
2. The Ultimate Tachibana Colloquy
The ICA erred in concluding (1) the district court’s
Tachibana advisement was not defective, and (2) that Pomroy had
intelligently, knowingly, and voluntarily waived his right to
testify. The district court’s Tachibana advisement was defective
because it did not fully advise Pomroy of his rights and because
it was not a true exchange.
16
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
To recapitulate, the district court began its colloquy as
follows:
THE COURT: Alright. Mr. Pomroy, before your attorney
[rests the defense’s case], let me advise you. You have the
right to testify on your own behalf. That decision is yours
and yours alone. If you choose to testify you will be
subject to cross-examination by the state. If you choose
not to testify, I cannot hold that against you. But the
only evidence I will have is what the State has presented,
unless you have other witnesses; you understand that?
THE DEFENDANT: Yes, ma’am.
The district court incompletely followed
Tachibana’s directive that trial courts advise defendants of the
following:
That he [or she] has a right to testify, that if he [or she]
wants to testify that no one can prevent him [or her] from
doing so, [and] that if he [or she] testifies the
prosecution will be allowed to cross-examine him [or her].
In connection with the privilege against self-incrimination,
the defendant should also be advised that he [or she] has a
right not to testify and that if he [or she] does not
testify then the jury can be instructed about that right.
79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7 (citations omitted).
Although the district court advised Pomroy that he had the right
to testify on his behalf and that if he chose to testify, he
would be subject to cross-examination by the State, the district
court did not advise Pomroy that he had the right not to testify
and that no one can prevent him from testifying.
Further, the district court did not engage Pomroy in a true
colloquy. In Han, we noted that a colloquy is an “oral exchange”
in which the “judge ascertains the defendant’s understanding of
17
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
the proceedings and of the defendant’s rights.” 130 Hawai#i at
135, 306 P.3d at 90 (citing Black’s Law Dictionary 300 (9th ed.
2009)(emphasis omitted). 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 rights
[and] amounts to a failure to obtain the on-the-record waiver
required by Tachibana.” 130 Hawai#i at 136, 306 P.3d at 91. In
this case, the district court recited a litany of rights. It
then asked Pomroy if he “understood that,” and it is unclear
which right “that” referenced.
Moreover, Pomroy’s lack of understanding became increasingly
evident as the colloquy continued:
THE COURT: Alright. Is it your choice to testify or not?
THE DEFENDANT: I think I have already said what has
happened, yeah. I don’t have to testify.
THE COURT: Alright. I don’t know what you mean by “I’ve
already said” because --
THE DEFENDANT: In my report, when I made it two years ago,
what had happened. That’s pretty much what it is.
THE COURT: So you’re talking about what the officer
testified to? Because you understand the police report is
not in evidence. You understand that?
THE DEFENDANT: I don’t understand what you’re saying.
(Discussion between Counsel and Defendant)
THE COURT: Alright.
THE DEFENDANT: I don’t need any testimony I guess.
THE COURT: Your choice not to testify?
THE DEFENDANT: Yes, ma’am.
From this exchange, it appeared that Pomroy mistakenly believed
that whatever he had said in a police report was before the
18
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
court. The district court explained that the police report was
not in evidence and that Pomroy would instead have to rely on
Bohol’s testimony to get his side of the story into evidence.6
Even after this explanation, the district court did not ascertain
that Pomroy understood what it had told him, or, more
importantly, understood his right to testify (or not testify).
On certiorari, Pomroy argues he repeatedly expressed doubt and
uncertainty over what the district court was telling him. From
the record before us, we agree.7
6
It may have been preferable for the district court not to comment on
the state of the evidence and to, instead, follow the model colloquy set forth
in Tachibana. 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. Doing so reduces
the risk that the district court may inadvertently “influence the defendant’s
decision whether or not to testify.” Id. The defendant’s counsel is in a
better position to advise the defendant to exercise his or her right to
testify based on the state of the evidence.
7
The Majority and Dissent differ chiefly on how to interpret the
colloquy on the record. The Dissent disagrees with our view of the record
that Pomroy was confused during the colloquy. Dissent at 4. The Dissent
states, “The district court could observe Pomroy’s demeanor and assess the
inflection in his voice, which we cannot do from a cold record, and there is
no reason to assume that the court would have ignored uncertainty on Pomroy’s
part if that is how he presented to the court.” Dissent at 4. Respectfully,
the Dissent’s statement suggests that the purpose of the colloquy is for the
trial court to make a determination, almost akin to a credibility
determination with respect to viewing witnesses firsthand, that the defendant
understood his or her rights, and that the appellate courts should accept such
a determination. See, e.g., Bhakta v. County of Maui, 109 Hawai#i 198, 217,
124 P.3d 943, 962 (2005)(“This court must, therefore, ‘generally accept the
determination of the court which had the opportunity to observe the demeanor
of the witnesses. . . .”)(citation omitted). However, in Han, we noted that
one of the reasons for adopting the Tachibana requirement was so “a trial
judge would establish a record that would effectively settle the right-to-
testify issues in the case. . . .” Han, 130 Hawai#i at 136, 306 P.3d 91
(emphasis added). Appellate review of the sufficiency of the Tachibana
colloquy is necessarily based on a cold record. We are tasked with
scrutinizing the language used by both the court and the defendant to assess
(continued. . .)
19
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
The district court “simply advised Petitioner of his rights,
without any ‘discussion,’ ‘exchange’ or ascertainment that
Petitioner understood his rights.” Han, 130 Hawai#i at 135, 306
P.3d at 90. Therefore, the district court “did not adequately
establish, on-the-record, that Petitioner understood what rights
he was waiving” or that he “had in fact understood the rights
listed by the court. . . .” 130 Hawai#i at 136, 306 P.3d at 91.
“The failure to ensure that Petitioner understood his rights
amounts to a failure to obtain the on-the-record waiver required
by Tachibana.” Id. In sum, Pomroy’s constitutional right to
testify was violated.
“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 (citations
omitted). It cannot be said that such violation was harmless
beyond a reasonable doubt, because it is unknowable from this
record whether Pomroy’s testimony, had he given it, could have
established reasonable doubt that he committed assault in the
7
(continued . . .)
whether a defendant knowingly, intelligently, and voluntarily waived his or
her right to testify. That task cannot be accomplished were we to defer to
the trial court’s apparent assessment of the defendant’s understanding
whenever the express language on the record leaves us with any doubt about the
validity of the colloquy and/or the defendant’s waiver.
20
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
third degree. “[I]t 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. The record in this case offers no clue to what
[the defendant] would have said, under oath, on the witness
stand.” State v. Hoang, 94 Hawai#i 271, 279, 12 P.3d 371, 379
(2000) (citation omitted). See also Tachibana, 79 Hawai#i at
240, 900 P.2d at 1307 (“From our review of the record, ‘it is
impossible to conclude, beyond a reasonable doubt, that
[Tachibana]’s testimony could not have created a reasonable doubt
in the mind of the factfinder and, hence, that the [violation of
Tachibana’s right to testify] could not have contributed to the
conviction.”) (citing Silva, 78 Hawai#i at 126, 890 P.2d at 713).
Pomroy has shown a violation of the constitutional right to
testify that cannot be considered harmless beyond a reasonable
doubt. Therefore, his conviction cannot stand.
B. Sufficiency of the Evidence and Credibility of the
Complaining Witness
Next, we address whether this court must reverse Pomroy’s
conviction due to double jeopardy based on insufficiency of the
evidence, or vacate and remand his case for a new trial.
Principles of double jeopardy do not preclude a retrial in this
21
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
case because substantial evidence supported Pomroy’s conviction.
See State v. Kalaola, 124 Hawai#i 43, 237 P.3d 1109 (2010)(“[T]he
double jeopardy clause does not bar retrial on the means of
establishing guilt for which there was sufficient evidence at
trial” because “error in this case was trial error.”)(citing
State v. Jones, 96 Hawai#i 161, 184 n.30, 29 P.3d 351, 374 n.30
(2001)).
On certiorari, Pomroy argues that the ICA erred in
concluding there was substantial evidence to support the district
court’s conclusion that Pomroy assaulted Lukens. While Pomroy
agrees that “testimony of feeling pain alone could conceivably
support a conviction of Assault in the Third Degree,” he
nonetheless argues that “[c]ommon sense tells us that if [Lukens]
had testified truthfully about the mechanism of his alleged
injuries, physical evidence of those injuries would have been
necessarily visible. . . .” Pomroy argues that the lack of
physical corroborative evidence indicates the assault “could not
have occurred,” regardless of whether the evidence (or absence of
evidence) is viewed in the light most favorable to the State. To
Pomroy, Lukens’ testimony “defied physics and human biology.”
We disagree. To convict Pomroy for the offense of assault
in the third degree in violation of HRS § 707-712(1)(a), the
22
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
State needed to prove beyond a reasonable doubt that Pomroy
intentionally, knowingly, or recklessly caused bodily injury to
Lukens; bodily injury is defined in HRS § 707-700 to include
“physical pain.” This court views the evidence adduced at trial
“in the strongest light for the prosecution. . . .” State v.
Matavale, 115 Hawai i 149, 157, 166 P.3d 322, 330 (2007)(citation
omitted). The test on appeal is whether substantial evidence
supports the trier of fact’s conclusion. 115 Hawai#i at 157-58,
166 P.3d at 330-31 (citation omitted). “‘Substantial evidence’
as to every material element of the offense charged is credible
evidence which is of sufficient quality and probative value to
enable [a person] of reasonable caution to support a conclusion.”
115 Hawai#i at 158, 166 P.3d at 331 (citation omitted).
At trial, Lukens testified that he felt physical pain that
measured a seven or eight on a ten-point scale. Berbelis
testified that Lukens complained to her of feeling pain.
Kubojiri also testified that Lukens complained to him of physical
pain. Pomroy argues that Lukens could not have been telling the
truth if no physical injuries were visible after the assault he
describes. This court, however, has stated, “Indeed, even if it
could be said in a bench trial that the conviction is against the
weight of the evidence, as long as there is substantial evidence
23
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
to support the requisite findings for conviction, the trial court
will be affirmed.” Matavale, 115 Hawai#i at 158, 166 P.3d at 331
(citation omitted). Further, the district court found Lukens’
(and Berbelis’) testimony to be credible. “The question of
credibility and the weight to be given the evidence is for the
trier of fact to determine and is not disturbed on appeal.”
State v. Ewing, 81 Hawai#i 156, 165, 914 P.2d 549, 558 (App.
1996)(citation omitted). It is well-settled that an appellate
court will not pass upon issues dependent upon the credibility of
witnesses and the weight of the evidence; this is the province of
the trier of fact.” Therefore, substantial evidence supports
Pomroy’s conviction, and the prohibition against double jeopardy
does not preclude a remand of this case to the district court for
a new trial.
V. Conclusion
We hold that the district court’s ultimate Tachibana
colloquy was defective because it incompletely advised Pomroy of
his right to testify and because it did not establish that Pomroy
understood his rights. As a result, the district court did not
obtain an on-the-record waiver of the right to testify from
Pomroy. Thus, Pomroy has demonstrated a constitutional violation
of his right to testify, which, under the circumstances of this
24
*** FOR PUBLICATION IN WEST’S HAWAI #I REPORTS AND PACIFIC REPORTER ***
case, cannot be considered harmless. We also hold that
substantial evidence supports Pomroy’s conviction; consequently,
the prohibition against double jeopardy does not preclude
retrial. We therefore vacate the ICA’s Judgment on Appeal,
vacate the district court’s Judgment of Conviction and Sentence,
and remand this case to the district court for a new trial.
Steven D. Strauss, /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna
Sonja P. McCullen,
for respondent /s/ Richard W. Pollack
25
State v. Pomroy.Â
Court: Hawaii Supreme Court
Date filed: 2014-01-31
Citations: 132 Haw. 85, 319 P.3d 1093
Copy CitationsCombined Opinion