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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-SEP-2020
07:50 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
________________________________________________________________
STATE OF HAWAI‘I,
Respondent/Plaintiff-Appellee,
vs.
KAPAHUKULA KALE VOORHEES,
Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 3DTA-13-01793)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and
Circuit Judge Kawamura, assigned by reason of vacancy)
I. INTRODUCTION
The State of Hawai‘i (State) charged Kapahukula
Voorhees (Voorhees) with, inter alia, Resisting Arrest.
Voorhees signed a waiver form purporting to waive his right to a
jury trial on that charge. Following a brief colloquy, the
District Court of the Third Circuit 1 (district court) accepted
1 The Honorable Joseph P. Florendo, Jr., presided.
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Voorhees’s waiver and after a bench trial, found him guilty of
that charge and several others. On appeal to the Intermediate
Court of Appeals (ICA), Voorhees contended that the waiver of
his right to a jury trial was not knowing, intelligent, and
voluntary. The ICA rejected that claim. However, we hold that
under this court’s recent decision in State v. Ernes, 147 Hawai‘i
316, 465 P.3d 763 (2020), Voorhees is entitled to relief.
Accordingly, we vacate his convictions.
II. BACKGROUND
The State charged Voorhees with six offenses: (1)
Operating a Vehicle Under the Influence of an Intoxicant
(OVUII), in violation of Hawai‘i Revised Statutes (HRS) § 291E-
61(a)(1) (Supp. 2019); (2) Driving without a License, in
violation of HRS § 286-102(b) (Supp. 2018); (3) Conditions of
Operation and Registration of Motor Vehicles, in violation of
HRS § 431:10C-104(a) (2005); (4) Resisting Arrest, in violation
of HRS § 710-1026(1) (2014); (5) Refusal to Submit to a Breath,
Blood, or Urine Test, in violation of HRS §§ 291E-11 (2007),
291E-15 (Supp. 2016), and 291E-68 (Supp. 2016); and (6)
Obedience to Police Officers, in violation of HRS § 291C-23
(2007). 2 Voorhees pled not guilty and his attorney informed the
2 Under HRS § 806-60 (2014), Voorhees was only entitled to a jury
trial on the Resisting Arrest charge because it is a misdemeanor that carries
up to one-year imprisonment. See HRS § 710-1026 (2014); HRS § 706-663 (Supp.
2016).
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district court that Voorhees had completed a jury trial waiver
form for his Resisting Arrest charge. The district court then
conducted the following colloquy with Voorhees:
Court: Mr. Voorhees, have you talked to your
attorney about your right to a jury trial?
Voorhees: Yes.
Court: Do you understand what a jury trial is?
Voorhees: Yes.
Court: Do you wish to give up your right to a
jury trial?
Voorhees: Yes.
Court: Did you read and understand this written
waiver form?
Voorhees: Yes, I did.
Court: Are these your initials in paragraphs 2
through 6?
Voorhees: Yes, they are.
Court: Is this your signature on the back?
Voorhees: Yes.
Court: If you give up your right to a jury, the
trial will be held in this court without a jury. Do
you understand?
Voorhees: Yes.
Court: Ms. Gibson, do you certify that your
client’s waiver is made knowingly and voluntarily?
Counsel: I so certify.
Court: I’ll accept this waiver and order
defendant to return November 4th at 2 o’clock for a
pretrial conference.
On his jury trial waiver form, filed September 30,
2013, Voorhees signed his initials to confirm his understanding
that a jury is composed of twelve people — whom he would
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participate in selecting — who will decide whether he is guilty
or not guilty, and will have to unanimously agree for there to
be a conviction. Additionally, Voorhees initialed the document
to indicate his understanding that giving up his right to a jury
trial means that a judge alone will determine if he is guilty;
Voorhees initialed to confirm that this is what he wanted. On
the form, Voorhees’s attorney also completed a certificate of
counsel, certifying that she read and fully explained the waiver
information to Voorhees and believed that he understood the
entire document.
Following a bench trial, the district court found
Voorhees not guilty of count 6, failing to obey police officers,
but guilty of (1) OVUII, (2) Driving without a License, (3)
Conditions of Operation and Registration of Motor Vehicles, (4)
Resisting Arrest, and (5) Refusal to Submit to a Breath, Blood,
or Urine Test. 3 Voorhees appealed.
Before the ICA, Voorhees argued, inter alia, that the
district court erred by failing to conduct a proper colloquy to
determine whether Voorhees’s jury trial waiver was knowing,
intelligent, and voluntary. In its memorandum opinion, the ICA
3 The ICA properly vacated Voorhees’s conviction as to count five
because “the State concede[d] that after Voorhees was arrested, Officer Pa
did not inform him of the sanctions under HRS §§ 291E-41 or 291E-65.”
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concluded that Voorhees’s jury trial waiver was valid. Voorhees
filed a timely application for certiorari.
III. STANDARD OF REVIEW
The validity of a criminal defendant’s waiver of [the]
right to a jury trial presents a question of state and
federal constitutional law. . . . We answer questions of
constitutional law by exercising our own independent
constitutional judgment based on the facts of the case.
Thus, we review questions of constitutional law under the
right/wrong standard.
Ernes, 147 Hawai‘i at 320, 465 P.3d at 767 (brackets in original)
(quoting State v. Gomez-Lobato, 130 Hawai‘i 465, 468–69, 312 P.3d
897, 900–01 (2013)).
IV. DISCUSSION
In Ernes, this court held that courts have a “serious
and weighty responsibility” to “ensur[e] that [a defendant’s]
jury trial waiver was voluntary, knowing, and intelligent,” and
that therefore “the record must reflect a colloquy establishing
a true understanding based on a totality of circumstances of the
particular case.” Ernes, 147 Hawai‘i at 323, 326, 465 P.3d at
770, 773. In other words, the court must conduct a “true
colloquy” — a “discussion and exchange between the trial court
and the defendant sufficient for an ascertainment based on the
record that the defendant fully comprehended the constitutional
rights being waived.” Id. at 324, 465 P.3d at 771 (emphasis
added). Further, in order to make certain that the nature and
content of the colloquy is sufficient, the trial court must
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conduct an initial inquiry into the defendant’s background that
would enable it to “tailor its colloquy . . . to ensure that the
court adequately conveys the risks and disadvantages” of waiving
his right to a jury trial. Id. at 325, 465 P.3d at 772 (quoting
State v. Phua, 135 Hawai‘i 504, 513, 353 P.3d 1046, 1055 (2015))
(emphasis omitted). After this inquiry, the trial court must
consider any “salient facts,” such as a language barrier. Id.
at 323-24, 465 P.3d at 770–71.
Under Ernes, it cannot be said that Voorhees’s jury
trial waiver was established as knowing, intelligent, and
voluntary. While neither the record nor Voorhees points to any
“salient facts,” the district court did not conduct any inquiry
into Voorhees’s background. And while a colloquy consisting of
yes or no questions might be appropriate in the absence of any
“salient facts,” the district court’s yes or no questions here
centered around confirming Voorhees’s signature and initials on
the waiver form — not his understanding of the constitutional
right to a jury trial. Id. at 326, 465 P.3d at 773. Further,
based on the totality of the circumstances here, even if it may
not have been necessary for the colloquy to cover every Duarte-
Higareda 4 factor in depth, none of them were even addressed.
4 In United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th
Cir. 1997), the Ninth Circuit held, “The district court should inform the
defendant that (1) twelve members of the community compose a jury, (2) the
defendant may take part in jury selection, (3) a jury verdict must be
(continued...)
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Gomez-Lobato, 130 Hawaiʻi at 470, 312 P.3d at 902; cf. State v.
Friedman, 93 Hawai‘i 63, 70, 996 P.2d 268, 275 (2000) (holding
colloquy sufficient where, in the absence of any salient facts,
the trial court’s colloquy addressed several of the Duarte-
Higareda factors). Similarly, although the record indicates
that Voorhees was represented by counsel and that his attorney
explained the jury trial waiver form to him, this is not enough
to outweigh the lack of “discussion and exchange” establishing
Voorhees’s actual understanding of a jury trial. Ernes, 147
Hawaiʻi at 326, 465 P.3d at 773; see Gomez-Lobato, 130 Hawaiʻi at
471-72, 312 P.3d at 903-04. The court only asked Voorhees, “Do
you understand what a jury trial is?” Thus, from this limited
inquiry, it is not possible to glean whether Voorhees truly
understood the meaning, nature, and impact of a jury trial
waiver.
V. CONCLUSION
Because we conclude the record does not reflect a
discussion and exchange sufficient to satisfy the district
court’s “serious and weighty responsibility” of ensuring a jury
trial waiver’s validity, Voorhees’s waiver was not properly
verified as knowing, intelligent, and voluntary under Ernes.
unanimous, and (4) the court alone decides guilt or innocence if the
defendant waives a jury trial.” This court has previously rejected a “bright
line rule” that “the Duarte–Higareda colloquy is constitutionally required in
every case.” State v. Friedman, 93 Hawai‘i 63, 69, 996 P.2d 268, 274 (2000).
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Accordingly, we vacate the ICA’s April 15, 2019 judgment on
appeal and the district court’s judgment and notice of entry of
judgment entered on April 22, 2014. See State v. Domut, 146
Hawai‘i 183, 194–95, 457 P.3d 822, 833–34 (2020). We remand this
case to the district court for further proceedings.
DATED: Honolulu, Hawai‘i, September 17, 2020.
Susan L. Arnett /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen L. Frye
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Shirley M. Kawamura
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