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Electronically Filed
Supreme Court
SCAP-24489
20-JUL-2017
08:13 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Plaintiff-Appellee,
vs.
FRANK O. LOHER,
Defendant-Appellant.
SCAP-24489
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(ICA CASE NO. 24489; CR. NO. 99-1621)
JULY 20, 2017
NAKAYAMA, ACTING C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
CIRCUIT COURT JUDGE NACINO, IN PLACE OF
RECKTENWALD, C.J., RECUSED
OPINION OF THE COURT BY POLLACK, J.
This case arises from the nearly seventeen-year old
conviction of Frank O. Loher for attempted sexual assault in the
first degree. At trial, Loher sought to present an alibi
defense based in large part on the testimony of his wife and his
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wife’s son. Although the trial was anticipated to last between
five and six days, the State rested its case-in-chief in the
early afternoon on the first day of the evidentiary portion of
the trial. When the circuit court informed defense counsel that
the defense’s witnesses would be required to testify that day,
counsel sought a continuance to secure the witnesses’ presence
so that they could testify first. The circuit court denied the
requested continuance, and, over defense counsel’s objection,
the court ordered Loher to either take the stand at that time or
forfeit his right to testify entirely. As a result, Loher took
the stand and testified before the other witnesses in the
defense’s case.
Following his conviction and his unsuccessful appeal,
Loher sought relief in state and federal post-conviction
proceedings. As a result of the post-conviction proceedings,
the Intermediate Court of Appeals’ June 19, 2003 judgment on
direct appeal was vacated so that Loher could raise a claim that
his constitutional rights were violated when the circuit court
ordered him to testify first or not at all. Loher’s case
requires this court to consider whether the circuit court erred
based on principles set forth in the United States Supreme
Court’s decision in Brooks v. Tennessee, 406 U.S. 605 (1972),
the Hawaii Constitution, and Hawaii caselaw, and, if the court
erred, whether the error is subject to harmless error review.
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I. FACTS AND PROCEDURAL HISTORY
A. Circuit Court Trial
On August 19, 1999, Loher was indicted by a grand jury
for attempted sexual assault in the first degree, in violation
of HRS § 705-500 (1993) and HRS § 707-730(1)(a) (1993) (count
one), and attempted kidnapping, in violation of HRS § 707-
720(1)(d) (1993) (count two). Loher v. State, 118 Hawaii 522,
524, 193 P.3d 438, 440 (App. 2008), overruled on other grounds
by State v. Auld, 136 Hawaii 244, 361 P.3d 471 (2015). The
State filed a “Memorandum of Pretrial” on December 9, 1999,
stating that the trial was expected to take five to six days.
Id. On November 13, 2000, the State filed its “Witness and
Exhibit List” identifying fourteen witnesses for the State. Id.
Loher and the State each filed motions in limine
relating to the evidence to be presented at trial. Id. During
the hearing on the parties’ motions, Loher stated that he
intended to present an alibi defense and establish that he was
not present during the attempted sexual assault and kidnapping.
Id. Loher’s counsel represented to the court that Loher would
testify at trial, but at various times he also expressed the
possibility that Loher would choose not to take the stand.
Loher v. State, No. 29818, 2011 WL 2132828, at *1 (App. May 31,
2011) (mem.).
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The evidentiary portion of the jury trial commenced at
9:30 a.m. on Tuesday, November 14, 2000.1 The State first called
Honolulu Police Department (HPD) Officer Oryn Baum. Officer
Baum testified that on July 29, 1999, at approximately 3:43
a.m., she was dispatched to an industrial area at 2722 Kakoi
Street. Once she arrived, she was flagged down by a female
identified by Officer Baum as the complaining witness. Officer
Baum stated that the complaining witness’s halter top was
ripped, and the officer observed a “kind of a scratch” on her
back. The complaining witness described her assailant, the
vehicle he was driving, and the vehicle’s license plate number.
The vehicle was subsequently identified by Officer Baum as
belonging to Frank and Andrea Loher. Following Officer Baum’s
testimony, the State called an HPD fingerprint identification
technician who testified that five sets of fingerprints were
recovered from Loher’s car but that none were a match to the
complaining witness.
The State then called the complaining witness.
complainant testified that in the early morning hours of July
29, 1999, she was walking along Kapiolani Boulevard when she
accepted an offer of a ride to the airport from an individual
1
The Honorable Dexter D. Del Rosario presided over the trial.
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with whom she was not acquainted who was driving a red car. The
witness made an in-court identification of Loher as the driver.
The complaining witness related that after the driver
got on the freeway, she fell asleep. When she woke up, the car
was parked. The driver then demanded oral sex. As she tried to
exit the vehicle, the complaining witness described that the
driver ripped her shirt and scratched her back in an attempt to
keep her inside of the car. She then ran out of the car to a
nearby pay phone, which she used to call police. The
complainant identified pictures presented by the State of the
alleged crime scene and Loher’s vehicle.
Following the lunch recess, the defense began its
cross-examination of the complaining witness. The complainant
confirmed that earlier in the evening and prior to the incident,
she fought with her boyfriend because he got into a car with
three other girls, and she did not want to see him with the
other girls. The complaining witness clarified that she was
walking because she wanted to go to the airport; she believed
that if she could get to the airport, she could obtain free
airline tickets from her boyfriend’s uncle who worked for an
airline. Following this testimony, at 1:39 p.m., HPD Detective
Earl Takahashi was called by the State and testified that the
complaining witness identified Loher as the driver in a
photographic lineup.
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After the conclusion of Detective Takahashi’s
testimony, the State rested its case at approximately 2:15 p.m.
The court recessed, and at 2:27 p.m., the court reconvened
outside the presence of the jury. Loher’s counsel requested a
continuance until the next trial day on Thursday morning because
he “had no idea that [the State] would finish [its case] this
early,” given that the State had “quite a number of people on
the witness list.” Counsel stated that he told the defense
witnesses to prepare to testify on Thursday; he related that he
tried to “make a couple calls” to secure the presence of defense
witnesses that day, but they were not available. Defense
counsel apologized but stated that “it’s too quick for us to
have to present witnesses under the circumstances.”
The circuit court denied the continuance request,
citing Hawaii Rules of Evidence (HRE) Rule 611 (1993) and noting
that there was more than enough time left in the day to proceed
with trial.2 The court stated that it would “allow the defense
to call Mr. Loher to testify” at that time. Defense counsel
2
HRE Rule 611(a) provides as follows:
The court shall exercise reasonable control over the mode
and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.
HRE Rule 611(a) (1993).
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objected, noting that Loher had a right not to testify and that
depending on the testimony of the other witnesses, Loher may
choose not to take the stand. Counsel further argued that the
court was essentially forcing Loher to testify.
[Defense counsel]: . . . the Court is actually forcing
[Loher] to take the stand because now we have nobody to
call, and you’re saying, Well, we can call Mr. Loher, but
as a strategic manner in planning for our case, he was
going to be the last witness I call, and depending how it
went with the other witnesses, we may not need to call him
because we can get everything that we need through the
other witnesses.
So, in fact, now that we’re being forced to call him
as first witness in a sense is prejudicial to Mr. Loher
because he’s being forced to testify when he, in essence,
we had not decided fully whether or not he would testify
for sure.
The court stated that it found defense counsel’s argument
unpersuasive because it was counsel’s responsibility to prepare
for trial.
The Court: The Court does not find the argument persuasive.
The Court believes that it was the responsibility or is the
responsibility of counsel to determine when witnesses would
be available.
Defense counsel was free to discuss with the State
the witnesses called and when they would anticipate
finishing their case.
Defense counsel has hopefully prepared for this case,
so should be aware at the present time what the witnesses
that he intends to call will testify. And having prepared
and having a knowledge as to what they will say, since they
are the defense witnesses, then they should be in the
position to know whether the defendant should testify.
The court also stated that defense counsel had represented that
Loher would testify concerning his alibi defense and suggested
that defense counsel’s objection to Loher testifying that day
was manipulative.
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The Court: . . . So the Court believes it is not persuasive
that defense counsel should now argue to this Court, after
the Court had denied his request to delay the trial till
Thursday by saying that he does not know what his own
witnesses will say and depending what they say, he will
then make the decision whether his client's going to
testify.
The Court would also note that during the pretrial
conferences, as well as in the opening statement, the
defendant has asserted an alibi that he was not present at
the time, and that where the -- his location would be
during certain times defense counsel has also represented
to the Court that his client is going to testify.
The Court is not persuaded by his argument and is
concerned that this may be manipulative in order to obtain
the relief that the Court had not granted.
When defense counsel requested permission to respond to the
court’s concerns, the court refused, stating that it was
unpersuaded by counsel’s argument and directing counsel to call
Loher to testify or waive his testimony.
[Defense counsel]: Well, if I can respond.
The Court: Excuse me, and the Court is unpersuaded by your
argument. So we’re going to proceed. You may call your
client to testify, or if you wish, not to testify or engage
in Tachibana at this time, and he may waive his testimony.
That is between you and your client.
So I’m going to take a recess, and before we do that,
is your client going to testify or is he going to waive his
right to testify?
In response to the court’s question whether Loher would testify
or waive his right to testify, defense counsel responded, “I’d
like to discuss that matter with him.” The court then recessed
so that defense counsel could discuss with Loher whether he
would testify.
The court reconvened at 2:43 p.m., and the defense
called Loher to testify. Loher stated that he was working on
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the night in question. When his shift ended at approximately
1:00 a.m. on the morning of July 29, he visited his wife,
Andrea, at the hospital where she worked. Loher left the
hospital, went to his place of residence, and spoke with his
wife on the phone, and he then slept from approximately 3:30
a.m. until 4:00 a.m. Loher testified that he left his residence
at around 4:30 a.m. to pick up Andrea’s son, Moses, visit with
Andrea at the hospital, and drive Moses to work. Loher also
testified that he had previously served in the United States
Army.3
On cross-examination, the State elicited testimony
that Loher had been dishonorably discharged from the United
States Army. Loher acknowledged that in a prior statement to
Detective Takahashi, he did not say anything about speaking with
his wife on the phone after leaving the hospital. Additionally,
Loher confirmed that he told Detective Takahashi that he left
his residence to pick up Moses at 5:30 a.m., rather than at 4:30
a.m. as he had testified on direct examination. Loher also
agreed that he told Detective Takahashi that no one else had
3
After defense counsel finished his direct examination of Loher,
the circuit court granted the State’s motion for the court to reconsider its
ruling on a motion in limine excluding evidence of Loher’s dishonorable
discharge from the United States Army. The court ruled that the State could
establish that Loher was dishonorably discharged.
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access to his car the night that the incident occurred. After
Loher finished testifying, the court recessed for the day.
When trial resumed on Thursday, November 16, 2000, the
defense called Moses and Andrea to the stand. Andrea testified
that Loher arrived at the hospital to visit with her shortly
before 2:00 a.m. and that he left at around 2:35 a.m. Andrea
stated that after Loher left the hospital and returned to his
residence, she spoke with him on the phone twice, with the
second call occurring at approximately 3:15 a.m. and lasting for
fifteen to twenty minutes. Andrea called Loher again at around
4:00 a.m. to wake him up so that he could take Moses to work.
On cross-examination, Andrea admitted that some of her
statements at trial were inconsistent with her prior statements
to Detective Takahashi, and she further acknowledged that she
had not told the detective that she called Loher at 4:00 a.m. to
wake him up.
Moses testified that Loher arrived to pick him up at
about 4:45 a.m. on the morning of July 29. Moses stated that
Loher drove him to visit with Andrea at the hospital and then to
work, where they arrived at about 6:00 a.m.
The State then called three rebuttal witnesses who
testified regarding Loher’s place of residence and appearance on
the day of the incident and Andrea’s prior statements to HPD.
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In closing arguments given that same day, both the State and the
defense described the case as resting largely on credibility.
The jury found Loher guilty of count one, attempted
sexual assault in the first degree.4 On July 18, 2001, Loher was
sentenced to an extended term of life imprisonment with the
possibility of parole, subject to a repeat-offender mandatory
minimum of thirteen years and four months. The court ordered
Loher to serve his term of life imprisonment consecutively to
sentences he was currently serving in unrelated matters.5
B. Direct Appeal (No. 24489)
Prior to sentencing, trial counsel withdrew as Loher’s
counsel, and appellate counsel was appointed to represent Loher.6
On appeal, Loher challenged the jury instructions, the
sufficiency of the evidence, and his sentence; he also raised a
claim of ineffective assistance of trial counsel. Appellate
counsel did not raise the issue of Loher being forced to testify
before the other defense witnesses. The ICA rejected Loher’s
claims and affirmed his conviction and sentence. See State v.
4
The jury concluded that count two, attempted kidnapping, had
merged with the offense charged in count one; thus, Loher was not convicted
of count two.
5
Loher has since fully served the prior sentences and is currently
serving the sentence imposed in this case. See Loher v. Thomas, 2016 WL
4745164, at *3 (D. Haw. Sept. 12, 2016); State v. Loher, No. 24489, 2003 WL
1950475, at *10 (App. Apr. 21, 2003) (mem.).
6
See Loher, 118 Hawaii at 526, 193 P.3d at 442.
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Loher (Loher I), No. 24489, 2003 WL 1950475 (App. Apr. 21, 2003)
(mem.). Loher unsuccessfully sought certiorari review.
C. Post-Conviction Proceedings
Thereafter, Loher engaged in post-conviction
litigation in both state and federal court on the following
three claims: (1) the circuit court violated his constitutional
rights by forcing him to testify before any of his witnesses or
not at all, in violation of Brooks v. Tennessee, 406 U.S. 605
(1972); (2) appellate counsel rendered ineffective assistance of
counsel by failing to raise the Brooks forced testimony issue on
direct appeal; and (3) the enhancement of his sentence based on
facts found by the circuit court judge violated Apprendi v. New
Jersey, 530 U.S. 466 (2000).
i. State Post-Conviction Proceedings
In State v. Loher (Loher II), No. 26000, 2005 WL
335234 (App. Feb. 11, 2005) (mem.), the ICA rejected Loher’s
Apprendi claim and affirmed the circuit court’s denial of
Loher’s motion for correction of sentence under Hawaii Rules of
Penal Procedure (HRPP) Rule 35 (1993).
In Loher v. State (Loher III), 118 Hawaii 522, 539,
193 P.3d 438, 455 (App. 2008), overruled on other grounds by
State v. Auld, 136 Hawaii 244, 361 P.3d 471 (2015), the ICA
affirmed in part and vacated in part the circuit court’s denial
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of an HRPP Rule 40 petition submitted by Loher. Specifically,
the ICA noted that Loher’s HRPP Rule 40 petition could be
construed to raise a claim that appellate counsel was
ineffective for failing to raise the Brooks forced testimony
issue on direct appeal. 118 Hawaii at 532, 193 P.3d at 448.
The ICA concluded that the circuit court erred in denying the
HRPP Rule 40 petition without holding a hearing on the
ineffective assistance of counsel issue, and it therefore
remanded the case to the circuit court for an HRPP Rule 40
hearing. Id. at 539, 193 P.3d at 455.
In Loher v. State (Loher IV), No. 29818, 2011 WL
2132828 (App. May 31, 2011) (mem.), the ICA reviewed the circuit
court’s denial of Loher’s HRPP Rule 40 petition following the
hearing conducted on remand pursuant to Loher III. The ICA
recounted various parts of the testimony that were presented at
the hearing on remand.7 The ICA determined that the circuit
7
The ICA noted, inter alia, the following: (1) Loher testified
that he “did not want to testify” at trial and “felt forced to testify when
the judge threatened to ‘end the trial right there on the spot’”; (2) Loher
further stated that he repeatedly told trial counsel that he did not want to
testify; (3) trial counsel testified that it appeared that Loher “always
wanted to testify,” that Loher would testify “no matter what,” and that
although he preferred for Loher to testify last, “the altered order of the
testimony ‘[didn’t] change things that much’” because Loher needed to testify
to a critical time period that his other witnesses, Andrea and Moses, could
not account for; (4) and appellate counsel testified that he had not been
aware of any legal precedent on the issue of forced testimony and that he did
not raise the issue on direct appeal for this reason. Loher IV, 2011 WL
2132828, at *4 (alteration in original).
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court denied Loher’s HRPP Rule 40 petition because Loher had
already decided to testify prior to trial and because trial
counsel was at fault for not having defense witnesses ready to
testify after the State rested its case. Id. at *4-5. The ICA
concluded that its opinion in State v. Kido, 102 Hawaii 369, 76
P.3d 612 (App. 2003), had created several exceptions to the rule
set forth in the U.S. Supreme Court’s decision in Brooks v.
Tennessee, 406 U.S. 605 (1972), and that at least two of these
exceptions applied in Loher’s case. Loher IV, 2011 WL 2132828,
at *6-9. The ICA therefore ruled that the circuit court
correctly concluded that appellate counsel’s failure to raise
the Brooks forced testimony issue on appeal did not amount to
ineffective assistance of counsel. Id. at *10. The Loher IV
court thus affirmed the circuit court’s denial of Loher’s HRPP
Rule 40 petition. Id.8
ii. Federal Habeas Proceedings
Following the ICA’s decision in Loher IV, Loher,
represented by the federal public defender’s office, sought
habeas relief in federal district court.
In Loher v. Thomas (Loher V), Civ. No. 11-00731 LEK-
KSC, 2013 WL 8561780 (D. Haw. Oct. 2, 2013), United States
8
Loher’s request for certiorari review of the ICA’s decision in
Loher IV was denied by this court with two justices dissenting. See Loher v.
State, No. SCWC-29818, 2011 WL 5926184 (Haw. Nov. 22, 2011) (order).
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Magistrate Judge Kevin S.C. Chang entered findings and
recommendations on Loher’s habeas petition to grant in part
Loher’s Apprendi claim but to deny in part his ineffective
assistance of counsel claim based on the Brooks forced testimony
issue.
In Loher v. Thomas (Loher VI), 23 F. Supp. 3d 1182 (D.
Haw. 2014), rev’d in part by Loher v. Thomas, 825 F.3d 1103 (9th
Cir. 2016), District Judge Leslie E. Kobayashi of the United
States District Court for the District of Hawaii adopted in part
and rejected in part the recommendations of the magistrate
judge. The district court determined that the ICA’s application
of Brooks in Loher IV was unreasonable, that a violation of
Brooks occurred in this case, that the violation amounted to a
structural error requiring automatic reversal of conviction,
that the error was not harmless even if harmless error analysis
applied, and that appellate counsel was ineffective for failing
to raise the Brooks claim on direct appeal. Id. at 1193-1200.
The district court therefore ordered that Loher be released
within thirty days subject to appropriate release conditions,
unless the State elected to retry him. Id. at 1200-01.
The State appealed the district court’s ruling in
Loher VI to the Ninth Circuit Court of Appeals. In Loher v.
Thomas (Loher VII), 825 F.3d 1103 (9th Cir. 2016), the Ninth
Circuit vacated in part and affirmed in part the district
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court’s ruling. Specifically, the Ninth Circuit concluded that
the ICA’s rejection of Loher’s Brooks claim in Loher IV was not
“objectively unreasonable.”9 Loher VII, 825 F.3d at 1115-17.
Next, the Ninth Circuit addressed Loher’s claim
regarding ineffective assistance of counsel. The court observed
that while the ineffective assistance of counsel claim was
independent of the Brooks claim, both claims related to the
underlying merits of Loher’s Brooks forced testimony argument.
Id. Although the Ninth Circuit concluded that the ICA’s
“rejection of the Brooks claim in a post-conviction appeal,
based on a post-conviction record, did not involve an
objectively unreasonable application of Brooks,” this conclusion
“simply does not answer whether a ‘reasonable probability
exists’ that Loher would have prevailed in his direct appeal,
based on the trial record, if his counsel had raised a Brooks
claim.” Id. at 1120-21.
The court concluded that the State had waived its
challenge to the federal district court’s ruling that Loher was
9
Federal courts may not grant a state prisoner’s petition for writ
of habeas corpus unless: (1) the state court decision was “contrary to, or
involved an unreasonable application of, clearly established” federal law, or
(2) the state court decision was based on an “unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.”
Loher VII, 825 F.3d at 1111 (quoting 28 U.S.C.A. § 2254(d) (West 1996)). As
noted by the Loher VII court, “[t]his is a ‘difficult to meet’ and ‘highly
deferential standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.’” Id. (quoting
Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).
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entitled to relief on the ground of ineffective assistance of
counsel, and it also concluded that Loher prevailed on his
Apprendi claim. Id. at 1121. Therefore, the court granted
Loher’s petition for writ of habeas corpus with respect to both
his ineffective assistance of appellate counsel and Apprendi
claims and remanded the case to the district court to determine
the appropriate remedy. Id. at 1122-23.
On remand, the federal district court in Loher v.
Thomas (Loher VIII), Civ. 11-00731 LEK-KSC, 2016 WL 4745164, at
*3 (D. Haw. Sept. 12, 2016), issued a conditional writ directing
the State to release Loher unless (1) the State moved to vacate
the ICA’s decision in Loher IV and (2) Loher’s direct appeal in
Loher I (No. 24489) was reinstated within ninety days. The
parties agreed, and the district court ordered, that Loher’s
claim regarding ineffective assistance of counsel would be
addressed first by reinstating his direct appeal; then, if
Loher’s direct appeal was unsuccessful, he could seek relief
based upon his Apprendi claim. Id.
iii. Reinstatement of Direct Appeal (No. 24489)
Upon the State’s motion, the ICA entered an order on
October 25, 2016, vacating its judgments on appeal in Nos. 24489
and 29818. The ICA reinstated Loher’s thirteen-year old direct
appeal in No. 24489 to “allow Loher to raise on direct appeal
his claim that, in violation of his constitutional rights, Loher
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was ‘forced’ to testify when the trial court refused to grant
Loher a continuance in order to testify after his other
witnesses.” On December 19, 2016, Loher’s appeal was
transferred to this court.
II. STANDARD OF REVIEW
This court “answer[s] questions of constitutional law
by ‘exercising our own independent judgment based on the facts
of the case.’” State v. Aplaca, 96 Hawaii 17, 22, 25 P.3d 792,
797 (2001) (quoting State v. Jenkins, 93 Hawaii 87, 100, 997
P.2d 13, 26 (2000)). Thus, “questions of constitutional law are
reviewed on appeal ‘under the “right/wrong” standard.’” Id.
(quoting Jenkins, 93 Hawaii at 100, 997 P.2d at 26).
III. DISCUSSION
On this renewed direct appeal, Loher contends that the
circuit court’s denial of a continuance, thereby forcing him to
testify before his other witnesses or not at all, violated his
fundamental rights under the federal and Hawaii constitutions.
Loher additionally argues that the circuit court’s action in
this case amounts to “structural error” and is therefore not
subject to harmless error review.10 The State submits that the
10
Loher alternatively submits that if harmless error review does
apply, the State cannot prove that the error in this case was harmless beyond
a reasonable doubt.
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circuit court’s denial of the requested continuance did not
constitute error. Even assuming the existence of error, the
State contends that harmless error review is applicable and that
any error in this case was harmless beyond a reasonable doubt.
A. Interference with Defendant’s Decision to Testify
i. Relevant Caselaw
In Brooks v. Tennessee, the United States Supreme
Court was called upon to review the constitutionality of a
Tennessee statute that required a defendant wishing to testify
to take the stand before any other testimony for the defense was
presented. 406 U.S. 605, 606 (1972). The Court stated that
“the rule that a defendant must testify first” was based on a
concern that defendants would observe the testimony of their
witnesses, testify last, and tailor their testimony to match the
prior witnesses’ accounts. Id. at 607.
In its analysis, the Court first considered the
uncertainties facing a defendant who must decide whether or not
to testify. The Court noted that a defendant’s choice to take
the stand “may pose serious dangers to the success of an
accused’s defense” because it “carries with it serious risks of
impeachment and cross-examination” and may also “open the door
to otherwise inadmissible evidence which is damaging to his
case.” Id. at 609 (quoting McGautha v. California, 402 U.S.
183, 213 (1971)). The Court also pointed out that although a
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defendant will usually have some idea of the strength of the
defense’s evidence, the defendant cannot be absolutely certain
that the defense’s “witnesses will testify as expected or that
they will be effective on the stand.” Id. The Court elaborated
that such witnesses “may collapse under skillful and persistent
cross-examination, and . . . fail to impress the jury as honest
and reliable witnesses.” Id. Additionally, “the defendant is
unlikely to know” whether testimony of other witnesses “will
prove entirely favorable.” Id. at 609-10.
The Court reasoned that due to these uncertainties, a
defendant may not know at the close of the State’s case whether
the defendant’s own testimony “will be necessary or even
helpful.” Id. at 610. Thus, the defendant might prefer to
remain silent rather than risk the dangers of then taking the
stand, putting off testifying “until its value can be
realistically assessed.” Id. Under the Tennessee statute,
however, defendants were denied the ability to realistically
assess the value of their testimony before deciding whether to
testify, as the statute required defendants to make the decision
at the close of the State’s case-in-chief and before presenting
any other defense witnesses. Id. The Court determined that the
statute “exacts a price for [the defendant’s] silence” by
keeping the defendant off the stand entirely unless the
defendant chooses to testify first, thereby “cast[ing] a heavy
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burden on a defendant’s otherwise unconditional right not to
take the stand.” Id. at 610-11.
The Court concluded that although the statute
reflected “a state interest in preventing testimonial
influence,” this interest was insufficient to overcome the
defendant’s constitutional right to remain silent. Id. at 611-
12. The Court therefore held that the statute “violate[d] an
accused’s constitutional right to remain silent insofar as it
requires [the defendant] to testify first for the defense or not
at all.” Id. at 612.
In addition to concluding that the statute violated
the defendant’s constitutional right to remain silent, the Court
also determined that the statute infringed on the defendant’s
constitutional right to due process of law. Id. The Court
observed that “[w]hether the defendant is to testify is an
important tactical decision as well as a matter of
constitutional right,” and “[b]y requiring the accused and
[defense counsel] to make that choice without an opportunity to
evaluate the actual worth of their evidence, the statute
restricts the defense--particularly counsel--in the planning of
its case.” Id. Further, the penalty for the defendant’s
decision to exercise his or her right to remain silent “is to
keep the defendant off the stand entirely,” even though counsel,
as a matter of professional judgment, may want to call the
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defendant to testify later in the trial. Id. As a result, the
statute operated to deprive the accused of “the ‘guiding hand of
counsel’ in the timing of this critical element of the
defense.”11 Id. at 612-13 (quoting Powell v. Alabama, 287 U.S
45, 69 (1932)). Although the Court noted that “nothing [it]
say[s] here otherwise curtails in any way the ordinary power of
a trial judge to set the order of proof, the accused and
[defense] counsel may not be restricted in deciding whether, and
when in the course of presenting [the] defense, the accused
should take the stand.” Id. at 613.
11
The Court held in part that the statute violated the defendant’s
constitutional due process rights as imposed on the states by the Fourteenth
Amendment. 406 U.S. at 612. However, subsequent decisions of the United
States Supreme Court have alternatively characterized the due process clause
violation found in Brooks as a violation of the defendant’s right to the
effective assistance of counsel. See, e.g., Herring v. New York, 422 U.S.
853, 857-58 (1975) (identifying Brooks, 406 U.S. 605, as contributing to a
“meaning [of the right to the assistance of counsel] that ensures to the
defense in a criminal trial the opportunity to participate fully and fairly
in the adversary factfinding process”); Cuyler v. Sullivan, 446 U.S. 335, 344
(1980) (stating that “court procedures that restrict a lawyer’s tactical
decision to put the defendant on the stand unconstitutionally abridge the
right to counsel” and citing Brooks, 406 U.S. 605, as an example); United
States v. Cronic, 466 U.S. 648, 659 n.25 (1984) (reasoning in context of the
right to effective assistance of counsel that “a trial is unfair if the
accused is denied counsel at a critical stage of [] trial” and citing Brooks,
406 U.S. 605, as an example); Strickland v. Washington, 466 U.S. 668, 686
(1984) (determining that “[g]overnment violates the right to effective
assistance [of counsel] when it interferes in certain ways with the ability
of counsel to make independent decisions about how to conduct the defense”
and citing Brooks, 406 U.S. 605, as an example); Bell v. Cone, 535 U.S. 685,
695, 696 n.3 (2002) (describing situations implicating the Sixth Amendment
right to counsel and citing Brooks, 406 U.S. 605, as an example of an actual
or constructive complete denial of counsel at a critical stage in the
proceedings).
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Hawaii appellate courts have considered the principles
established by Brooks on several occasions. In State v.
Grindles, 70 Haw. 528, 533, 777 P.2d 1187, 1191 (1989), this
court first relied on Brooks to hold that a defendant was
entitled to have the State present its entire case before
deciding whether or not to take the stand. In Grindles, the
defendant was charged with driving under the influence of
intoxicating liquor, and the relevant statute set forth one
offense with alternative methods of proof.12 Id. at 530-31, 777
P.2d at 1189. At trial, the court announced that it would
bifurcate the proceedings based on the two alternative means of
committing the offense. Id. at 529, 777 P.2d at 1189. After
the State presented its evidence with respect to the first means
of committing the offense, the court ordered that the defendant
should present his case on that issue before the court would
proceed with the State’s case-in-chief on the second means. Id.
at 529-30, 777 P.2d at 1189.
The defendant refused to present any testimony until
the State had presented its entire case against him, arguing
that the trial court’s proposed procedures violated his
12
Commission of the offense at issue in Grindles could be
demonstrated if either (1) the defendant operated a vehicle while under the
influence of intoxicating liquor, or (2) the defendant operated a vehicle
with “0.10 percent or more, by weight of alcohol in the person’s blood.” 70
Haw. at 530-31, 777 P.2d at 1189 (quoting HRS § 291-4(a) (repealed 2000)).
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constitutional rights. Id. This court agreed, reasoning that
as applied to criminal trials, the “denial of due process is the
failure to observe that fundamental fairness essential to the
very concept of justice” and concluding that the trial court’s
procedures violated the defendant’s “due process right to a fair
trial” because the procedures were “fundamentally unfair.” Id.
at 532, 777 P.2d at 1190 (quoting Lisenba v. California, 314
U.S. 219, 236 (1941)).
The Grindles court also analyzed the Supreme Court’s
decision in Brooks, 406 U.S. 605, and observed the significance
of “a defendant’s constitutional interest in controlling the
timing and sequence of evidence” in the defense’s case.
Grindles, 70 Haw. at 532, 777 P.2d at 1190. The court concluded
that based on Brooks, 406 U.S. 605, “the defendant has an
absolute right to hear the State’s case” before deciding whether
or not to testify. Grindles, 70 Haw. at 533, 777 P.2d at 1191
(emphasis omitted). As a result, the court determined that the
procedures also improperly burdened the defendant’s right
against self-incrimination afforded by the Fifth Amendment to
the United States Constitution and article I, section 10 of the
Hawaii Constitution. Id. at 532, 777 P.2d at 1190.
In State v. Kido, 102 Hawaii 369, 378, 76 P.3d 612,
621 (App. 2003), the ICA applied Brooks and Grindles to hold
that an order requiring a defendant to testify prior to other
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defense witnesses violated the defendant’s state and federal
constitutional rights to due process and against self-
incrimination. In Kido, the defense sought to begin its case at
trial by calling to the stand a witness that was being held by
the State on an unrelated matter; the witness was present at the
courthouse, but was occupied in a different hearing. 102 Hawaii
at 371-72, 76 P.3d at 614-15. Because the witness was not
available, the trial court required the defense to call the
defendant to the stand because he was the only other witness
present and because of the court’s concern that the parties were
“wasting time.” Id. at 372, 76 P.3d at 615. Following defense
counsel’s overruled objection, the defendant testified and was
subsequently convicted. Id.
On appeal, the ICA first reviewed the United States
Supreme Court’s decision in Brooks, 406 U.S. 605. Kido, 102
Hawaii at 374-76, 76 P.3d at 617-19. The ICA noted that “some
federal and state appellate courts, presented with averments of
Brooks error, have declined to find constitutional error” in the
following three categories of cases: (1) where “the trial court
required that the defendant testify before only some of his
witnesses”; (2) where “the defendant’s decision whether to
testify congealed before the trial court’s action”; and (3)
where “the defendant himself created the exigency for taking his
testimony first.” Id. at 376, 76 P.3d at 619. The ICA
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elaborated that “[i]n so holding, some of those courts have
noted the distinction between the statutory directive in Brooks
and the trial court directive before them, though none have
explained why the distinction makes a constitutional
difference.” Id. (footnote omitted).
The ICA concluded, however, that “those cases [were]
factually distinguishable” because “the choice foisted upon Kido
was effectively the same choice the Tennessee statute forced
upon Brooks”--i.e., testify first, before any other defense
witnesses, or do not testify at all. Id. The ICA noted that
the record contained no indication that the defendant had
already decided to testify, that the defendant “created an
exigency that pushed him to the head of the witness list,” or
that the inconvenience that would have resulted from delaying
the proceedings to secure the presence of the other defense
witness would have been anything more than “trifling.” Id. at
377, 76 P.3d at 620. The ICA therefore held that the trial
court abused its discretion in “directing, over Kido’s
objection, that he testify before his other defense witness.”
Id. at 378, 76 P.3d at 621.
The ICA again considered the issue of forced testimony
in State v. Sale, 110 Hawaii 386, 133 P.3d 815 (App. 2006). In
Sale, the defendant affirmed during trial that he would take the
stand but sought to testify after his only other witness. 110
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Hawaii at 390-91, 133 P.3d at 819-20. However, when the other
witness could not be located, the circuit court required the
defense to proceed with its case “in the interest of not wasting
time.” Id. at 391, 133 P.3d at 820. As a result, the defendant
took the stand and testified in his own defense. Id. Although
the other witness was later located, he stated his intent to
invoke his right against self-incrimination; when the defense
sought to have the witness testify as to basic facts of his
relationship with the defendant, the circuit court deemed such
testimony inadmissible under HRE Rule 403 (1993). Id. at 391-
92, 133 P.3d at 820-21.
The defendant in Sale subsequently appealed his
conviction, arguing, inter alia, that the trial court erred in
requiring him to testify before resolving whether his other
witness would testify. Id. at 396, 133 P.3d at 825. The ICA in
its decision analyzed both Brooks, 406 U.S. 605, and Kido, 102
Hawaii 369, 76 P.3d 612, and observed that “[n]otwithstanding
the broad language in Brooks, courts have declined to find
constitutional error in circumstances factually distinguishable
from Brooks.” Sale, 110 Hawaii at 397, 133 P.3d at 826.
However, the ICA determined that it “need not address whether
the circuit court’s actions amounted to Brooks error” because it
“conclude[d] that any error was harmless beyond a reasonable
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doubt.” Id.13 The ICA reasoned that the defendant “had already
stated his decision to testify on the record” before the circuit
court required him to testify first and the defendant “turned
out to be the only witness for the defense.” Id. at 397-98, 133
P.3d at 826-27.
ii. A Court May Not Restrict a Defendant in Deciding Whether
and When to Testify
Caselaw of this jurisdiction and of the United States
Supreme Court makes clear that a defendant and defense counsel
“may not be restricted in deciding whether, and when in the
course of presenting his [or her] defense, the accused should
take the stand.” Brooks, 406 U.S. at 613. Any such restriction
violates Hawaii’s constitutional guarantee against self-
incrimination provided by article I, section 10, the right to
due process of law under article I, section 5, and the right to
13
In its 2008 decision in Loher III, 118 Hawaii at 539, 193 P.3d at
455, the ICA once again addressed Brooks and its progeny. Although the ICA
in Loher III addressed only whether appellate counsel was ineffective for
failing to raise the Brooks forced testimony issue on direct appeal, it
observed in a footnote that “in Kido, [the ICA] identified various situations
where Brooks error would not be found.” 118 Hawaii at 533 n.6, 193 P.3d at
449 n.6. The ICA then listed the three categories of cases identified in
Kido and briefly recounted its opinions in both Kido and Sale. Id.
Additionally, in its unpublished opinion of Loher IV, No. 29818,
2011 WL 2132828, at *7-9, the ICA likewise stated that other courts “ha[d]
held that no Brooks error exists” in the three categories of cases identified
by Kido, and it applied two of the exceptions to determine that there was no
Brooks error in Loher’s case.
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the assistance of counsel14 under article I, section 14,15 as well
as the analogous provisions of the United States Constitution.
See U.S. Const. amend. V; U.S. Const. amend. XIV; U.S. Const.
amend. VI.
Although Brooks addressed a statute that imposed
restrictions on a defendant’s decision whether and when to take
the stand, the Court’s concerns that the restriction precluded
the defendant from making the choice to testify or remain silent
“in the unfettered exercise of [the defendant’s] own will” and
also deprived the accused of “the ‘guiding hand of counsel’”
apply with as much strength to a court’s directive at trial as
to a requirement imposed by statute. Id. at 610, 612-13 (first
quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964); then quoting
Powell, 287 U.S. at 69); see also Kido, 102 Hawaii at 376, 76
14
Although courts of this jurisdiction have previously found such a
requirement to violate the privilege against self-incrimination and the right
to due process, we concur with the reasoning of multiple decisions issued by
the United States Supreme Court, see supra note 11, that the reasoning
underlying the Brooks court’s finding of a due process violation also
implicates the constitutional guarantee to the effective assistance of
counsel. See Brooks, 406 U.S. at 612-13 (describing the relevant violation
as based on the accused’s deprivation of “the ‘guiding hand of counsel’ in
the timing of [a] critical element of [the] defense” and the fact that the
statute “restricts the defense--particularly counsel--in the planning of its
case” (quoting Powell, 287 U.S. at 69)).
15
See Haw. Const. art. I, § 10 (“[N]or shall any person be
compelled in any criminal case to be a witness against oneself.”); Haw.
Const. art. I, § 5 (“No person shall be deprived of life, liberty or property
without due process of law . . . .”); Haw. Const. art. I, § 14 (“In all
criminal prosecutions, the accused shall enjoy the right to . . . have the
assistance of counsel for the accused’s defense.”).
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P.3d at 619 (observing that some courts have “noted the
distinction between the statutory directive in Brooks and the
trial court directive before them, though none have explained
why the distinction makes a constitutional difference” (footnote
omitted)); Grindles, 70 Haw. at 531-33, 777 P.2d at 1190-91
(deeming unconstitutional a trial court’s bifurcation of
proceedings and directive that a defendant testify prior to the
close of the State’s case based in part on Brooks, 406 U.S.
605).
The State argues, however, that no Brooks violation
occurred in this case because this jurisdiction has adopted
exceptions to the principles recognized in Brooks and because at
least two of these exceptions apply. In support of its argument
on this issue, the State relies primarily on the ICA’s decision
in Kido, 102 Hawaii 369, 76 P.3d 612.
Kido, however, did not adopt exceptions to the
principles elucidated in Brooks. Rather, the ICA in Kido
observed that “some federal and state appellate courts” had
adopted such exceptions. 102 Hawaii at 376, 76 P.3d at 619
(emphasis added). The Kido court identified three categories of
cases in which other courts confronted with a Brooks error had
declined to find constitutional error. Id. Although the Kido
court observed that the record was devoid of an indication that
two of these exceptions were relevant to its disposition, it
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ultimately concluded that the defendant’s constitutional rights
were violated because “the choice foisted upon Kido was
effectively the same choice the Tennessee statute forced upon
Brooks.” Id.
Nor did the ICA adopt exceptions to the Brooks ruling
in Sale. 110 Hawaii 386, 133 P.3d 815. The ICA in Sale again
stated that some courts had “declined to find” a Brooks
violation in “factually distinguishable” circumstances. Sale,
110 Hawaii at 397, 133 P.3d at 826. Although the Sale court did
consider the legal relevance of one of the exceptions identified
by Kido (namely, whether the defendant’s decision to testify had
“congealed”)., it did so only within the context of determining
whether any alleged Brooks error would be harmless beyond a
reasonable doubt, thereby confirming that it did not find that
this consideration should be analyzed in determining whether a
violation occurred. Sale, 110 Hawaii at 397, 133 P.3d at 826.16
Significantly, this court has not adopted “exceptions”
to the constitutional protections first set forth by the Supreme
Court in Brooks and subsequently affirmed in this jurisdiction.
Rather, this court’s consideration of Brooks reflects our
16
While the ICA in Loher III observed in a footnote that “[i]n
Kido, [the ICA] identified various situations where Brooks error would not be
found,” 118 Hawaii at 533 n.6, 193 P.3d at 449 n.6, this appears to be based
upon a misreading of its prior decision in Kido.
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understanding of the grave importance of “a defendant’s
constitutional interest in controlling the timing and sequence
of evidence in his defense.” Grindles, 70 Haw. at 532, 777 P.2d
at 1190. Further, the possible exceptions identified by the ICA
in Kido are inconsistent with the protections afforded to
defendants in this jurisdiction and with the concerns underlying
the Supreme Court’s decision in Brooks. 406 U.S. at 612-13.
One exception involves a factual inquiry into
whether the defendant previously decided to testify and
whether this decision had “congealed” prior to the trial
court’s requirement that the defendant testify or waive the
right. Kido, 102 Hawaii at 376, 76 P.3d at 619. This
exception, however, is in derogation of the latitude given to
a defendant to delay deciding whether to take the stand until
after the defense’s case has been presented and to be able to
change one’s mind following any preliminary decision. Brooks,
406 U.S. at 609-10. The Brooks Court’s conclusion that a
defendant is constitutionally entitled to not decide whether
to testify until after viewing the strength of the defendant’s
case was based in large part on a concern that even though a
defendant may make a preliminary decision whether to take the
stand, such a decision may change after presentation of the
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witnesses and other evidence in the defense’s case. See id.;
Grindles, 70 Haw. at 532–33, 777 P.2d at 1190–91.17 An
exception based on a defendant’s preliminary decision as to
whether to take the stand would conflict with the ruling in
Brooks because it would remove the defendant’s power to choose
whether, and when, to testify once a provisional decision had
been made, thereby eliminating the defendant’s right to change
his or her mind as the defense’s case at trial proceeds.
Adopting an exception to Brooks that excuses a
violation of a defendant’s constitutional rights based on the
defendant’s prior assertion that he or she would take the stand
is also inconsistent with fundamental principles that underlie
this court’s decision in Tachibana v. State, 79 Hawaii 226, 900
P.2d 1293 (1995). In Tachibana, we held that trial courts must
conduct an on-the-record colloquy to advise defendants of their
right to testify and to determine whether the defendant wishes
to exercise or waive the right. Id. at 237-38, 900 P.2d at
1304-05. We concluded that the “ideal time” to conduct the
17
See also United States v. Cook, 608 F.2d 1175, 1189 (9th Cir.
1979) (Kennedy, J., dissenting in part and concurring in part) (“At the
outset of the trial, a defendant in good faith may intend to testify, but it
may be quite reasonable for him to change his mind after considering the
course taken by the evidence. All of us know a defendant may tell a brave
story to his counsel only to succumb to fear once the full weight of the
prosecution’s case becomes apparent. In these instances a defendant and his
counsel often elect to invoke the self-incrimination privilege despite an
earlier plan to testify.”), overruled on other grounds by Luce v. United
States, 469 U.S. 38 (1984).
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colloquy is “immediately prior to the close of the defendant’s
case,” based in large part on our observation that “the
defendant may not be in a position to decide whether to waive
the right to testify until all other evidence has been
presented.” Id. at 237, 900 P.2d at 1304. Implicit in our
holding in Tachibana was our conclusion that a defendant must be
afforded the opportunity to not decide whether to take the stand
until the close of the defense’s case. An exception that
effectively waives the defendant’s constitutional right to
testify or not to testify based on a preliminary decision, made
before the defense’s case was presented, would be inconsistent
with the principles enunciated in Tachibana.
An exception grounded in a defendant’s prior assertion
regarding the decision to testify would also run counter to the
emphasis placed by Tachibana and its progeny on the fundamental
importance of ensuring that such a decision is made knowingly
and intelligently. Id. at 233-36, 900 P.2d at 1300-03; see also
State v. Monteil, 134 Hawaii 361, 371, 341 P.3d 567, 577 (2014)
(“[A] decision by a defendant not to testify should be based
upon a defendant’s awareness of the ‘relevant circumstances and
likely consequences’ of such a decision.” (quoting Brady v.
United States, 397 U.S. 742, 748 (1970))). In the context of
deciding whether to testify or not testify, a fully-informed
determination requires the defendant to have knowledge of and
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“intelligently weigh” “the advantages and disadvantages” of
testifying and being subject to cross-examination, which the
defendant may be unable to assess until the close of the
defense’s case. Grindles, 70 Haw. at 532-33, 777 P.2d at 1190-
91 (quoting Brooks, 406 U.S. at 608). Requiring the defendant
to choose whether or not to take the stand based on a prior,
preliminary decision--made before being able to assess the state
of the defense at trial--will often impair the defendant’s
ability to make a knowing, fully-informed choice.
The remaining exceptions identified by the ICA in Kido
suffer from similar flaws. 102 Hawaii at 376, 76 P.3d at 619.
The “exigency” exception is based on a defendant’s relative
fault for “creat[ing] the exigency for taking his testimony
first.” Id. This exception would result in the automatic
forfeiture of a defendant’s constitutional rights if, for
example, defense counsel inaccurately predicts the number of
witnesses who are called to testify by the State, overestimates
the duration of the witnesses’ testimony, misunderstands a
communication by the State regarding the expected length of
trial, or fails to anticipate that a defense witness will be
tardy or not appear.18
18
See, e.g., Kido, 102 Hawaii at 371-72, 76 P.3d at 614-15
(defendant required to testify first based on State’s inability to produce
(continued. . .)
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An exigency exception would therefore permit the
errors of counsel to waive fundamental rights held exclusively
by the defendant, despite our requirement that such
relinquishment may be effectuated “only by the defendant.”
Tachibana, 79 Hawaii at 232, 900 P.2d at 1299 (quoting State v.
Silva, 78 Hawaii 115, 123, 890 P.2d 702, 710 (App. 1995),
abrogated on other grounds by Tachibana, 79 Hawaii 226, 900 P.2d
1293); see also id. (“a defendant’s personal constitutional
right to testify truthfully . . . may not be waived by counsel
as a matter of trial strategy” (quoting United States v. Moody,
977 F.2d 1425, 1431 (11th Cir. 1992))). Predicating the
deprivation of a defendant’s constitutional rights on
inadvertent errors of counsel or a late arrival of a witness is
also a deficient proxy for ensuring that a defendant makes a
knowing, intelligent, and fully-informed decision whether to
testify. See id. at 232, 900 P.2d at 1299.
The final exception identified by Kido relates to
whether the trial court required that the defendant testify
“before only some of his [or her] witnesses.” 102 Hawaii at
(. . .continued)
defense’s other witness at trial); Sale, 110 Hawaii at 390-91, 133 P.3d at
819-20 (defendant required to testify first based in part on defense
counsel’s inability to secure presence of other defense witness).
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376, 76 P.3d at 619. However, compelling the defendant to
testify or to give up that right after the first or second
witness but prior to the remaining defense witnesses suffers
from the same constitutional flaws as the two exceptions
described above. Namely, such an exception would force the
defendant to make the decision whether to testify before the
value of the defense’s remaining evidence could be
“realistically assessed,” Brooks, 406 U.S. at 610, and it would
be an inadequate substitute for securing a defendant’s knowing
and intelligent waiver of his or her constitutional rights,
Tachibana, 79 Hawaii at 233-36, 900 P.2d at 1300-03. Further,
there appears to be no reasonable basis for a rule that would
prohibit the court from requiring a defendant to testify first,
yet permit the court to order a defendant to testify or give up
that right prior to the presentment of other witnesses in the
defense’s case.
Although it is true that under HRE Rule 611 (1993),
the trial judge possesses the authority to “exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence,” the rules of evidence “cannot override the
constitutional rights of the accused.” State v. Calbero, 71
Haw. 115, 124, 785 P.2d 157, 161 (1989); see also State v. Tetu,
139 Hawaii 207, 214, 386 P.3d 844, 851 (2016) (observing that
the rules of criminal procedure do not set “outer limit[s]” on
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the court’s power to protect constitutional rights). The trial
court may not rely on its authority to set the order of proof in
a manner that violates the constitutional rights of defendants,
and, therefore, it may not invoke such authority to require the
defendant to testify before the defense’s other witnesses or not
at all. See Brooks, 406 U.S. at 613 (“While nothing we say here
otherwise curtails in any way the ordinary power of a trial
judge to set the order of proof, the accused and his counsel may
not be restricted in deciding whether, and when in the course of
presenting his defense, the accused should take the stand.”
(emphases added)). Accordingly, while a trial court may control
the mode and order of the presentation of evidence at trial to
serve the interests of judicial economy, “[p]ressuring the
defendant to take the stand, by foreclosing later testimony if
[the defendant] refuses, is not a constitutionally permissible
means” of achieving this goal.19 Id. at 611.
In sum, the United States Supreme Court established in
Brooks, 406 U.S. at 613, that a defendant may not be restricted
in deciding whether to waive the privilege against self-
incrimination or in determining when the defendant should take
19
We observe that a trial court retains authority to deny a
continuance requested by the defense during trial when, despite being given
reasonable and sufficient opportunity to secure a witness, the witness does
not appear at trial.
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the stand in the defense’s case. We adopted this principle in
Grindles and concluded that the Hawaii Constitution likewise
protects a defendant’s freedom to choose when and whether to
testify for the defense. 70 Haw. at 531-33, 777 P.2d at 1190-
91. The exceptions identified by the ICA in Kido, 102 Hawaii at
376-77, 76 P.3d at 619-20, are inconsistent with this court’s
ruling in Grindles and contrary to the protections afforded to
defendants under the Hawaii Constitution, and, therefore, we
decline to adopt them.20
iii. The Circuit Court Violated Loher’s Constitutional Rights by
Compelling Him to Testify Before His Other Witnesses or Not At
All
In this case, the State identified up to fourteen
witnesses that it would call in its case-in-chief, and the trial
was expected by the parties and the court to last between five
and six days. On the first day of the evidentiary portion of
the trial on Tuesday, November 14, 2000, the State rested its
case at approximately 2:15 p.m. The circuit court then
announced that it would take a brief recess, after which it
would “give the defense an opportunity to present any evidence.”
20
To the extent that Kido and other prior cases of the ICA may be
read as approving such exceptions, this reading is rejected. See, e.g.,
Kido, 102 Hawaii at 376-77, 76 P.3d at 619-20; Sale, 110 Hawaii at 397, 133
P.3d at 826; Loher III, 118 Hawaii at 533 n.6, 193 P.3d at 449 n.6; Loher IV,
No. 29818, 2011 WL 2132828, at *7-9.
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When the court reconvened outside the presence of the jury,
defense counsel requested a continuance until the next trial day
on Thursday, November 16, when the defense’s witnesses had been
arranged to appear. According to defense counsel, the
unavailability of the two witnesses was due to counsel’s
approximation that the witnesses would not be needed until
Thursday. Counsel informed the court that he “had no idea that
[the State] would finish this early . . . because they have
quite a number of people on the witness list.”
Defense counsel further explained to the circuit court
the reasons for requesting the continuance, stating that Loher
“had not decided fully whether or not he would testify for
sure.” Counsel informed the court that “as a strategic manner
in planning for [the defense’s] case, [Loher] was going to be
the last witness [he] call[ed],” and whether Loher testified or
not would “depend[] how it went with the other witnesses.” In
response to counsel’s objection, the circuit court stated that
it was “the responsibility of counsel” to secure the presence of
his witnesses, that defense counsel “should be aware . . . what
the witnesses that he intends to call will testify,” and that
defense counsel had also “represented to the [circuit court]
that his client [was] going to testify.” Invoking its authority
to set the order of proof under HRE Rule 611 (1993), the circuit
court denied the request for a continuance over defense
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counsel’s objection. The court announced, “So we’re going to
proceed. You may call your client to testify, or if you wish,
not to testify . . . and he may waive his testimony.”21
The circuit court thus indisputably required Loher to
either testify before his other witnesses or waive his right to
testify entirely, thereby “restrict[ing]” Loher and his counsel
“in deciding whether, and when in the course of presenting his
defense, the accused should take the stand.” Brooks, 406 U.S.
at 613; see also Grindles, 70 Haw. at 532-33, 777 P.2d at 1190-
91. In imposing this requirement, the circuit court
unreasonably burdened Loher’s privilege against self-
incrimination in violation of the Fifth Amendment to the United
States Constitution and article I, section 10 of the Hawaii
Constitution, preventing Loher from making the choice whether
and when to testify free of coercion from the court. See
Brooks, 406 U.S. at 610 (noting that under the Tennessee
statute, the defendant could not make the choice whether to
testify “in the unfettered exercise of his own will” (quoting
Malloy, 378 U.S. at 8)).
21
We observe that at the time the trial court ordered Loher to
testify first or not at all, the ICA had not yet set forth its decisions in
Kido, 102 Hawaii 369, 76 P.3d 612, and Sale, 110 Hawaii 386, 133 P.3d 815,
observing the existence of “exceptions” in other jurisdictions to the rule
set forth in Brooks, 406 U.S. 605.
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The circuit court’s actions also impaired Loher’s
constitutional right to the assistance of counsel as provided by
the Sixth Amendment to the United States Constitution and
article I, section 14 of the Hawaii Constitution. Loher was
deprived of an advisement by defense counsel on whether to take
the stand that was fully-informed and made following counsel’s
“evaluat[ion] [of] the actual worth” of the defense’s evidence,
see Brooks, 406 U.S. at 612, and the circuit court undermined
counsel’s ability to present the defense of Loher’s choosing.
Additionally, the circuit court’s interference with
counsel’s ability to mount Loher’s alibi defense burdened
Loher’s right to “be accorded ‘a meaningful opportunity to
present a complete defense,’” State v. Matafeo, 71 Haw. 183,
185, 787 P.2d 671, 672 (1990) (quoting California v. Trombetta,
467 U.S. 479, 485 (1984)), and represented a “failure to observe
that fundamental fairness essential to the very concept of
justice,” Grindles, 70 Haw. at 532, 777 P.2d at 1190 (quoting
Lisenba, 314 U.S at 236). Therefore, the circuit court’s
actions also violated Loher’s right to due process of law under
the Fourteenth Amendment to the United States Constitution and
article I, section 5 of the Hawaii Constitution.
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B. Applicability of Structural Error or Harmless Error
Analysis
Because we conclude that Loher’s constitutional rights
were violated when the circuit court required him to testify
before his other witnesses or forfeit his right to testify
entirely, we must determine whether the violation is structural
error or subject to harmless error analysis. See State v. Reed,
135 Hawaii 381, 386, 386 n.11, 351 P.3d 1147, 1152, 1152 n.11
(2015) (characterizing structural errors and stating that such
errors are not subject to harmless error analysis).
i. Federal Constitution
After concluding that the defendant was deprived of
his constitutional rights in Brooks v. Tennessee, the United
States Supreme Court did not explicitly address whether the
violation was subject to harmless error analysis. 406 U.S. 605,
613 (1972). Rather, the Court concluded that “[t]he State makes
no claim that this was harmless error, and [the defendant] is
entitled to a new trial.” Id. at 613 (citation omitted).
Following its decision in Brooks, the Supreme Court
has on several occasions characterized Brooks as exemplifying a
violation of the Sixth Amendment’s guarantee of the assistance
of counsel that requires no showing of prejudice. See United
States v. Cronic, 466 U.S. 648, 659 n.25 (1984) (observing that
in the context of the Sixth Amendment right to the effective
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assistance of counsel, Brooks, 406 U.S. 605, is an example where
the Supreme Court “found constitutional error without any
showing of prejudice when counsel was either totally absent, or
prevented from assisting the accused during a critical stage of
the proceeding”).22 The Supreme Court has reasoned that no
showing of prejudice is required in this situation in part
because the denial of counsel is “so likely to prejudice the
accused that the cost of litigating [its] effect in a particular
case is unjustified,” Cronic, 466 U.S. at 658, and because these
circumstances “involve impairments of the Sixth Amendment right
that are easy to identify” and “easy for the government to
prevent,” Strickland, 466 U.S. at 692; see also People v.
Mitchell, 560 N.W.2d 600, 605 (Mich. 1997) (characterizing
Brooks, 406 U.S. 605, as an example of “the court or the state
directly interfer[ing] with the attorney-client relationship by
preventing counsel from rendering assistance” and describing the
22
See also Strickland v. Washington, 466 U.S. 668, 692 (1984)
(explaining that “[a]ctual or constructive denial of the assistance of
counsel altogether is legally presumed to result in prejudice,” as well as
“various kinds of state interference with counsel’s assistance” and citing
the examples identified by Cronic, 466 U.S. at 659 n.25 (including Brooks,
406 U.S 605)); Bell v. Cone, 535 U.S. 685, 696 n.3 (2002) (relating certain
situations where the Supreme Court “found a Sixth Amendment error without
requiring a showing of prejudice” because the defendant was actually or
constructively denied counsel and citing Brooks, 406 U.S. 605, as an
example); Wright v. Van Patten, 552 U.S. 120, 124 (2008) (affirming that
Cronic, 466 U.S. 648, establishes that no showing of prejudice is required to
find a Sixth Amendment violation when “counsel is either totally absent, or
prevented from assisting the accused during a critical stage of the
proceeding” (alteration omitted) (quoting Cronic, 466 U.S. at 659 n.25)).
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presumption of prejudice in such cases as a “prophylactic
approach”).23
ii. State Constitution
We recognize that while some federal and state courts
have considered Brooks violations to constitute structural
error, other courts have applied harmless error analysis.
However, this court has explicitly considered that the rights
provided by the Hawaii Constitution regarding due process of
law, the privilege against self-incrimination, and the
assistance of counsel--each of which was violated in this case--
may in certain circumstances provide greater protections to
defendants in the State of Hawaii.24 Thus, we consider whether,
23
Relying on the presumption of prejudice required by the Supreme
Court’s decision in Cronic, several state and federal courts have concluded
that when a criminal defendant has been denied the right to counsel at a
critical stage of the trial or when the ability of counsel to represent the
defendant is subject to certain state interference, the harmless error rule
does not apply. See, e.g., United States v. Roy, 855 F.3d 1133, 1144, 1149
(11th Cir. 2017) (en banc) (describing Brooks, 406 U.S. 605, as exemplifying
a “statutory or court-ordered interference exception to the prejudice
requirement”); see also Wayne R. LaFave et al., Criminal Procedure 1072 (6th
ed. 2017) (describing Brooks, 406 U.S. 605, as exemplifying the prohibition
against “unconstitutional state imposed interference with counsel” which is
“presumed prejudicial and therefore requires automatic reversal”).
24
See, e.g., State v. Bowe, 77 Hawaii 51, 58-60, 881 P.2d 538, 545-
47 (1994) (collecting cases in which this court has “broadened the due
process rights of the accused in criminal proceedings”); id. at 57-58, 881
P.2d at 544-45 (“reject[ing]” the United States Supreme Court’s “narrow
focus” regarding the concerns underlying the constitutional privilege against
self-incrimination and holding that the protections afforded by article I,
section 10 of the Hawaii Constitution are “broader”); State v. Aplaca, 74
Haw. 54, 67 n.2, 837 P.2d 1298, 1305 n.2 (1992) (observing that “under
Hawaii’s [c]onstitution, defendants are clearly afforded greater protection
of their right to effective assistance of counsel” than under the federal
constitution).
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given the nature and magnitude of the independent protections
provided by the Hawaii Constitution, the circuit court’s
restriction of Loher’s decision regarding whether and when to
testify in his defense constitutes structural error not subject
to harmless error review. See Reed, 135 Hawaii at 386, 351 P.3d
at 1152.
1. Characteristics of Structural Errors Under Hawaii Law
Decisions of our courts show that two related
characteristics of an error may render it structural and thus
not subject to harmless error analysis. First, “certain rights
protected by the Hawaii Constitution” are “so basic to a fair
trial that [their] contravention can never be deemed harmless.”
State v. Holbron, 80 Hawaii 27, 32 n.12, 904 P.2d 912, 917 n.12
(1995) (alteration in original) (quoting State v. Suka, 79
Hawaii 293, 299, 901 P.2d 1272, 1278 (App. 1995), overruled on
other grounds by Holbron, 80 Hawaii 27, 904 P.2d 912); see also
State v. Cramer, 129 Hawaii 296, 311, 299 P.3d 756, 771 (2013)
(Acoba, J., concurring) (stating that this court “in determining
whether to apply harmless error review to the violation of a
particular right” should look in part to the “nature of the
right at issue” (quoting Arizona v. Fulminante, 499 U.S. 279,
291 (1991) (White, J., dissenting in part))); State v. Mundon,
121 Hawaii 339, 382, 219 P.3d 1126, 1169 (2009) (Acoba, J.,
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concurring in part and dissenting in part) (observing that
“Hawaii courts have recognized that the Hawaii Constitution
protects certain rights ‘so basic to a fair trial that [their]
contravention can never be deemed harmless’” (quoting Holbron,
80 Hawaii at 31 n.12, 904 P.2d at 918 n.12)).
Based on this principle, courts of our jurisdiction
have relied on the inherent nature of the constitutional right
at issue and its significance in affording the defendant a
fundamentally fair trial to conclude that certain errors are not
subject to harmlessness review. See, e.g., Mundon, 121 Hawaii
at 358, 219 P.3d at 1145 (trial court’s failure to provide
defendant with transcripts from prior proceedings did not
require a showing of prejudice to merit vacatur and remand for a
new trial in part because there was “innate value” to a
defendant in being able to utilize transcripts to prepare for
trial); State v. Silva, 78 Hawaii 115, 121, 890 P.2d 702, 708
(App. 1995) (holding that “when the court assumes the role of a
prosecutor, it violates the fundamental due process requirement
that the tribunal be impartial, and such an error, by
definition, is inherently prejudicial and not harmless”),
abrogated on other grounds by Tachibana v. State, 79 Hawaii 226,
900 P.2d 1293 (1995); State v. Chow, 77 Hawaii 241, 249-51, 883
P.2d 663, 671-73 (App. 1994) (“doubt[ing]” that the denial of an
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opportunity to engage in presentence allocution “can ever be
harmless error,” based in part on the status of allocution as a
“significant aspect of the fair treatment which should be
accorded a defendant in the sentencing process” and its use as a
tool to maximize the perceived equity of the criminal process);
Reed, 135 Hawaii at 386, 351 P.3d at 1152 (stating that
violation of the right to retained counsel of choice constitutes
structural error in part because the right is “deemed of such
importance” and because it is required to maintain “the
integrity of our system of justice”).
Second, this court has considered that an error may be
properly considered structural when the impact of the error on
conviction is impossible to reliably assess and when harmless
error review would require the appellate court to engage in pure
speculation. For instance, in Cramer, 129 Hawaii at 303, 299
P.3d at 763, this court suggested that denial of the right to
privately retained counsel of choice under article I, section 14
of the Hawaii Constitution constituted structural error. We
concluded in Cramer that denial of the defendant’s counsel of
choice at a sentencing hearing constituted error and quoted the
Supreme Court’s reasoning that it is “impossible to know what
different choices the rejected counsel would have made, and then
to quantify the impact of those different choices on the outcome
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of the proceedings.” Id. (quoting United States v. Gonzalez-
Lopez, 548 U.S. 140, 150 (2006)). Likewise, we concluded that
requiring the defendant in Cramer “to argue that he was
‘prejudiced’” by the violation would require this court to
“speculate as to how [the counsel of choice] would have
represented [the defendant] at the sentencing hearing.” Id. We
therefore vacated the defendant’s judgment and remanded for
resentencing without conducting a harmless error analysis. Id.
We again considered the speculative nature of the
impact of a right to counsel violation in State v. Harter, where
we suggested that ineffective assistance of counsel due to a
conflict of interest may require no showing of prejudice to
require vacatur and remand for a new trial. 134 Hawaii 308,
327-28, 340 P.3d 440, 459-60 (2014). Significantly, we noted
that “it would be impractical to require a defendant to prove
‘adverse effect’ in such a case” because it would be impossible
to know what choices a different lawyer would make in
representing the defendant and because “appellate inquiry ‘into
a claim of harmless error’ may require ‘unguided speculation.’”
Id. (first quoting Cramer, 129 Hawaii at 303, 299 P.3d at 763;
then quoting Holloway v. Arkansas, 435 U.S. 475, 491 (1978)
(improper denial of motion to withdraw based on conflict of
interest constituted error not subject to harmlessness
analysis)). In support of this proposition, we also quoted the
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Supreme Court’s observations that “it would be difficult to
judge intelligently the impact of a conflict on the attorney’s
representation of a client” and that “to assess the impact of a
conflict of interest on the attorney’s options, tactics, and
decisions in plea negotiations would be virtually impossible.”25
Id. at 328 n.24, 340 P.3d at 460 n.24; see also State v. Phua,
135 Hawaii 504, 517, 353 P.3d 1046, 1059 (2015) (vacating and
remanding without engaging in harmless error analysis where no
valid waiver of counsel was made by the defendant at sentencing,
thereby depriving him of the constitutional right to counsel at
a critical stage of the proceedings); State v. Pitts, 131 Hawaii
537, 319 P.3d 456 (2014) (vacating and remanding without
engaging in harmless error analysis for deprivation of the
constitutional right to counsel during “critical stage[s]” of
post-verdict motion proceeding and sentencing).
2. Restricting a Defendant in Deciding Whether and When to
Testify Amounts to Structural Error Under Hawaii Law
In this court’s adoption of Brooks, we did not analyze
whether the error was harmless when we vacated the defendant’s
conviction and remanded for a new trial. State v. Grindles, 70
25
The Harter court ultimately concluded that it need not determine
whether a finding of prejudice was required because the defendant did not
voluntarily consent to the attorney-client relationship as required under our
conflict of interest standard, which, standing alone, was sufficient to
require vacatur. 134 Hawaii at 328, 340 P.3d at 460.
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Haw. 528, 531-33, 777 P.2d 1187, 1190-91 (1989). Rather, the
Grindles court vacated the conviction and remanded to the trial
court without considering the effect of the constitutional
violation on the underlying conviction. Id. Despite this
court’s ruling in Grindles, the ICA in State v. Kido held that a
constitutional violation stemming from a trial court’s
requirement that the defendant testify before other defense
witnesses is subject to harmless error review. 102 Hawaii 369,
378, 76 P.3d 612, 621 (App. 2003). Underlying the ICA’s ruling
were its conclusions that the Brooks court “implied[]” that such
review was applicable and that the violation was not “of the
kind and magnitude” that this court had intimated could never be
deemed harmless. Id. (citing Holbron, 80 Hawaii at 32 n.12, 904
P.2d at 917 n.12).
However, the ICA in Kido analyzed neither the nature
nor the “magnitude” of the vital constitutional rights that were
unreasonably burdened. A court’s interference with a
defendant’s decision whether and when to testify results in the
violation of the defendant’s constitutional privilege against
self-incrimination, right to the effective assistance of
counsel, and right to due process of law. The fundamental
nature of these three constitutional protections establishes
that Loher was deprived of rights “basic to a fair trial.”
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Holbron, 80 Hawaii at 32 n.12, 904 P.2d at 917 n.12 (quoting
Suka, 79 Hawaii at 299, 901 P.2d at 1278).
First, equally vital to our system of justice are
“both the right to testify and the right not to testify.” State
v. Monteil, 134 Hawaii 361, 369, 341 P.3d 567, 575 (2014)
(observing that “Hawaii has historically protected” both
rights). Whether to take the stand is a critical question that
may pose substantial dangers to the defense’s case, particularly
because it subjects the defendant to cross-examination by the
State. Grindles, 70 Haw. at 532, 777 P.2d at 1190 (quoting
Brooks, 406 U.S. at 608); see also Brooks, 406 U.S. at 609
(“none would deny that the choice itself may pose serious
dangers to the success of an accused’s defense”). As observed
by the Supreme Court in Brooks, a defendant’s choice to take the
stand “carries with it serious risks of impeachment and cross-
examination” and may also “open the door to otherwise
inadmissible evidence which is damaging to his case.” 406 U.S.
at 609 (quoting McGautha v. California, 402 U.S. 183, 213
(1971)). For this reason, our jurisdiction has adopted
significant safeguards to ensure that a defendant’s
constitutionally-protected decision to testify or not testify is
made knowingly, intelligently, and free of state coercion. See,
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e.g., Tachibana, 79 Hawaii at 236, 900 P.2d at 1303; Monteil,
134 Hawaii at 371, 341 P.3d at 577.
It is also “well-settled that ‘the right of one
charged with a crime to counsel is deemed fundamental and
essential to a fair trial.’” Mundon, 121 Hawaii at 366, 219
P.3d at 1153 (alterations omitted) (quoting Gideon v.
Wainwright, 372 U.S. 335, 344 (1963)). A defendant may “lack[]
both the skill and knowledge to adequately prepare” and present
his or her defense, and for this reason, it is crucial that the
defendant is provided with the “guiding hand of counsel at every
step in the proceedings against him.” Id. (quoting Geders v.
United States, 425 U.S. 80, 89 (1976)). In this regard, defense
counsel’s advisement regarding the tactical advantages and
disadvantages of taking the stand is crucially important to a
defendant who must make the decision whether to waive the
privilege against self-incrimination and testify in his or her
defense. Tachibana, 79 Hawaii at 232, 900 P.2d at 1299. By
restricting the ability of the defendant to freely make this
significant decision with the informed advice of counsel, the
court “exceeds its judicial power and authority” by interfering
with counsel’s ability to provide representation and “invad[ing]
the province of the attorney-client relationship.” Silva, 78
Hawaii at 125, 890 P.2d at 712.
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Finally, it is of paramount importance that defendants
in our jurisdiction are “accorded ‘a meaningful opportunity to
present a complete defense’” in order to satisfy the guarantees
that due process affords. State v. Matafeo, 71 Haw. 183, 185,
787 P.2d 671, 672 (1990) (quoting California v. Trombetta, 467
U.S. 479, 485 (1984)). “A primary reason that a defendant is
guaranteed effective assistance of counsel is to ensure that the
defendant is not denied due process,” State v. Tetu, 139 Hawaii
207, 219, 386 P.3d 844, 856 (2016), because counsel helps ensure
that the defendant is able to present the defense of his or her
choosing and receives a fundamentally fair trial. Requiring
defense counsel to present the testimony of the defendant first,
rather than following the presentation of the remainder of the
case, undermines the ability of counsel to plan and present the
defense’s case. Where no other defense witnesses have
testified, counsel may be bound to frame questioning differently
or elicit a broader swathe of testimony, thereby increasing the
“serious risks of impeachment and cross-examination.” Brooks,
406 U.S. at 609. A trial court’s interference with the
defendant’s ability to make an informed, unrestricted decision
whether to waive a critical constitutional privilege undermines
“that fundamental fairness essential to the very concept of
justice.” Grindles, 70 Haw. at 532, 777 P.2d at 1190 (quoting
Lisenba v. California, 314 U.S. 219, 236 (1941)).
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Our caselaw is thus clear that each of the three
constitutional rights that were violated by the circuit court is
fundamentally important in guaranteeing to the accused a fair
trial. And, because of their complementary protections, these
provisions may overlap to strengthen the constitutional rights
afforded to criminal defendants in the adversarial process.
Additionally, an application of harmless error review
in this case would require appellate courts to engage in
unguided speculation regarding the impact of the three
constitutional violations on the subsequent conviction. See
Cramer, 129 Hawaii at 303, 299 P.3d at 763. By nature of the
court’s error in restricting the defendant’s decision whether
and when to take the stand, the defendant is compelled to either
invoke the constitutional right to remain silent or to waive the
privilege against self-incrimination and testify in his or her
own defense. An assessment of the error’s impact on conviction
presents several significant difficulties that would ultimately
render it impossible to reliably determine whether there was a
reasonable possibility that the error might have contributed to
the defendant’s conviction. See Holbron, 80 Hawaii at 32, 904
P.2d at 917 (setting forth harmless error review standard).
First, the harmlessness inquiry would require the
court to speculate as to what choice the defendant may have made
as to testifying if he or she were afforded the opportunity to
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not choose until after presentation of the defense’s case.
Second, it would require the court to speculate as to what
guidance defense counsel would have given after counsel’s
presentation of the defense and assessment of the actual
strengths and weaknesses of the case, as well as whether the
defendant would in fact have heeded counsel’s advice.26 Third,
in cases where the defendant invoked the privilege to remain
silent but may have testified absent the court’s erroneous
directive, the appellate court would be required to surmise the
entirety of the defendant’s testimony to assess how the
conviction may have been impacted. Similarly, if the defendant
took the stand following the court’s error, it would be
impossible to determine how the content of the testimony,
including cross-examination and impeachment, would have differed
26
Even when the remaining defense witnesses are subsequently unable
to give testimony, the impact of the trial court’s error is similarly
speculative. Defense counsel’s advice on whether to take the stand is often
influenced by what counsel anticipates the defense witnesses may testify to
and the relative strengths, weaknesses, and comprehensiveness of their
testimony. In this situation, the appellate court would be required to
speculate whether and how, had defense counsel known that the witnesses would
be unable to testify, the advice would have differed. The circumstances of
State v. Sale, 110 Hawaii 386, 133 P.3d 815 (App. 2006), present an
instructive example. In that case, the defendant was required by the court
to decide whether he would testify prior to resolving the availability of his
only other witness. Id. at 390-92, 133 P.3d at 819-21. The defendant
elected to take the stand, and it was subsequently determined that his
witness would be unable to testify because he would invoke his own privilege
against self-incrimination that related to the charge against the defendant.
Id. Assessing the impact of error on conviction would have required an
appellate court to speculate as to what advice the defendant’s counsel would
have given had counsel known that the witness would be deemed unavailable and
unable to give testimony in the defendant’s case.
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had the defendant been permitted to testify following
presentation of the remainder of the defense’s case.
Consequently, given the multitude of factors that influence the
defendant’s personal decision to testify, defense counsel’s
professional advisement regarding the choice to testify, and
counsel’s presentment of the defense’s case, it would be
“virtually impossible” to assess the impact of the violation.27
Harter, 134 Hawaii at 328 n.24, 340 P.3d at 460 n.24 (quoting
Holloway, 435 U.S. at 490).
The circuit court’s procedures in this case
represented direct state interference with the exercise of three
core, fundamental rights. The nature of these three
constitutional rights, their importance in this jurisdiction in
guaranteeing to the accused a fair trial, and the speculation
that would be required were an appellate court to gauge the
impact of their violation on conviction under harmless error
review manifest that the error in this case can “never be deemed
harmless” under the Hawaii Constitution.28 Holbron, 80 Hawaii
27
The ICA’s analysis in Kido, 102 Hawaii at 379, 76 P.3d at 622, is
instructive. In Kido, harmless error analysis required the ICA to speculate
whether the defendant would have testified absent the court’s error; the ICA
guessed that had the court permitted the defendant to testify after his other
witness, “perhaps [the defendant] would then have been well advised to leave
well enough alone.” 102 Hawaii at 379, 76 P.3d at 622.
28
We further observe that classification of the error at issue here
as structural protects against a particular violation of three fundamental
(continued. . .)
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at 32 n.12, 904 P.2d at 917 n.12 (quoting Suka, 79 Hawaii at
299, 901 P.2d at 1278).29 Thus, consistent with our prior
decision in Grindles, 70 Haw. at 534, 777 P.2d at 1192, the
error in this case--which consisted of a violation of three
fundamental constitutional rights--is structural and therefore
requires vacatur of the defendant’s conviction and remand of the
case for a new trial.30
IV. CONCLUSION
The circuit court erred when it restricted Loher in
deciding whether and when in the course of presenting his
defense he should take the stand, thereby violating his
constitutional privilege against self-incrimination, his
constitutional right to the assistance of counsel, and his right
(. . .continued)
constitutional rights that is “easy to identify” and “easy for the government
to prevent.” Strickland, 466 U.S. at 692 (reasoning that prejudice is
presumed in actual or constructive denials of counsel and “various kinds of
state interference with counsel’s assistance” in part because such violations
are “easy for the government to prevent”); see also People v. Mitchell, 560
N.W.2d 600, 605 (Mich. 1997) (describing this presumption of prejudice as a
“prophylactic approach”).
29
Therefore, to the extent that the ICA in prior decisions has
applied harmless error analysis to violations of the principles set forth in
Grindles, 70 Haw. 528, 777 P.2d 1187, these decisions are overruled. See
Kido, 102 Hawaii at 378-79, 76 P.3d at 621-22; State v. Sale, 110 Hawaii 386,
397-98, 133 P.3d 815, 826-27 (App. 2006); Loher III, 118 Hawaii at 533 n.6,
193 P.3d at 449 n.6; Loher IV, 2011 WL 2132828, at *7-9.
30
Because we conclude that the error in this case is structural and
therefore not subject to harmless error review, we do not address the State’s
contention that the error was harmless beyond a reasonable doubt.
58
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
to due process of law. Under the Hawaii Constitution, harmless
error analysis does not apply to the circuit court’s error.
Based on the foregoing, the circuit court’s July 18, 2001
Judgment is vacated, and the case is remanded for a new trial.
Peter C. Wolff, Jr., and /s/ Paula A. Nakayama
Craig W. Jerome /s/ Sabrina S. McKenna
for appellant
/s/ Richard W. Pollack
Brian R. Vincent
for appellee /s/ Michael D. Wilson
/s/ Edwin C. Nacino
59