NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2022
07:53 AM
Dkt. 79 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
BENJAMIN DAVID OLTHAFER, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CRIMINAL NO. 3CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Benjamin David Olthafer appeals
from the "Judgment of Conviction and Probation Sentence" entered
by the Circuit Court of the Third Circuit.1 For the reasons
explained below, we vacate the Judgment and remand for further
proceedings.
On March 13, 2018, a grand jury indicted Olthafer for
Felony Abuse of Family or Household Member in violation of Hawaii
Revised Statutes § 709-906(1) and (9). A "Submission of
Stipulated Facts for Bench Trial" was signed by Olthafer,
Olthafer's deputy public defender, and the deputy prosecuting
attorney on September 5, 2018. The Submission was filed on
September 7, 2018. The Judgment was entered on November 8, 2018.
This appeal followed.
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The Honorable Melvin H. Fujino presided.
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Olthafer contends that the circuit court "Erred When it
Failed to Ensure Olthafer's Waiver of His Right to a Trial by
Jury Was Made Intelligently, Knowingly, and Voluntarily."
The validity of a criminal defendant's waiver of
[their] 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.
State v. Baker, 132 Hawai#i 1, 5, 319 P.3d 1009, 1013 (2014)
(ellipsis omitted).
In Baker, the defendant signed his initials next to
each paragraph on a form indicating that he intended to waive a
jury trial, except for the paragraph stating that his waiver was
not induced by promises or threats. Id. at 3-4, 319 P.3d at
1011-12. The circuit court then engaged the defendant in a brief
colloquy about the form. Id. at 4, 319 P.3d at 1012. On appeal,
the supreme court explained that even when the defendant signs a
written jury trial waiver form, the trial court is still required
to conduct an oral colloquy to establish the validity of the
waiver. Id. at 6, 319 P.3d at 1014. The supreme court held that
the defendant's waiver of jury trial was not voluntary because
the defendant failed to initial next to the paragraph on the
waiver form that addressed voluntariness and "none of the court's
questions were directed towards determining the voluntariness of
[the defendant]'s waiver." Id. at 7, 319 P.3d at 1015.
In this case, the Submission set forth the stipulated
facts, then stated:
10. The Defendant has been informed that he has the
right to have a trial by jury in case 3CPC-18-194; that in a
jury trial, he and his attorney have the right of selecting
twelve (12) persons from a panel of potential jurors; that
he has a certain number of peremptory challenges which can
be used to excuse a juror for any reason; and that all
twelve (12) jurors must unanimously agree before a verdict
can be given. The Defendant has also been informed that at
a trial he has the right to confront and cross-examine the
witnesses who testify. The Defendant hereby waives his
right to a trial by jury in case 3CPC-18-194 and agrees to
have the question of his guilt or innocence determined by
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the Court alone based upon the above Exhibits attached
herein. The Defendant also waives his right to cross-
examine the witnesses for case 3CPC-18-194 and agrees to
submit the attached Exhibits without cross-examination.
Defendant further understands that at trial he would have
the right to take the stand and testify or the right not to
testify. Defendant hereby waives his right to testify at
trial.
On September 5, 2018, the circuit court held a hearing.
Olthafer's counsel stated:
Um, Your Honor, um, may, um, I have gone over the, uh,
stipulation for stipulated facts trial with Mr. Olthafer.
Um, he has, um, signed as well as the State.
Um, I would ask if I can approach both the, uh, court
clerk to submit my exhibits as well as exhibit list and the
Court to submit the submission for stipulated facts trial,
Your Honor.
THE COURT: Sure.
The circuit court then had an oral colloquy with Olthafer:
THE COURT: So, Mr. Olthafer, do you know what today's
hearing is about?
THE DEFENDANT: I believe this is the hearing that
we've been waiting for.
. . . .
THE COURT: Okay? So have you taken any medication,
alcohol or illegal drugs within the last 48 hours?
THE DEFENDANT: No.
THE COURT: Okay. And do you know what a stipulated
facts trial is?
THE DEFENDANT: The presenting of those facts of the
--
THE COURT: All these papers that your attorney just
gave me so --
THE DEFENDANT: Yes.
THE COURT: -- when we have a stipulated facts trial
there're [sic] not gonna be any witnesses called and so
normally -- not normally.
In a trial as a defendant you have the right to see,
hear and question witnesses who testify against you, but if
they're not gonna be called to the stand you're not gonna
see them in person. The Court's just gonna review what's
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submitted in the police reports because I think you got a
chance to review as well as the doctors' reports.
THE DEFENDANT: Yes.
THE COURT: Okay. And normally when a witness
testifies if the prosecutor asks them questions you'll have
a right to ask them questions that's known as
cross-examination.
But if they submitted just because you're not gonna
have live testimony and just on the reports you're not gonna
have that opportunity to cross-examine them as to their
opinions. You understand?
THE DEFENDANT: Yes.
THE COURT: You gotta answer out loud because we are
being recorded.
Do you understand what you're giving up when we have a
stipulated facts trial?
THE DEFENDANT: Uh, say that one more time.
THE COURT: Do you understand what you're giving up
because you have the right to see, hear and question
witnesses who testify against you, but if you have a
stipulated facts trial they're not gonna be testifying so
it's just gonna be submission of the reports or their
opinions without you having the opportunity to ask them
questions and to see them because everything is done by
paper. Do you understand the difference?
THE DEFENDANT: Yes.
THE COURT: And you're willing to do that?
THE DEFENDANT: Yes.
THE COURT: Okay. Now, also you have a, uh,
constitutional right to a jury trial, but if you do a
stipulated fact trial as we doing now there's no jury so.
THE DEFENDANT: It's just you.
THE COURT: Just me. So I'm gonna ask -- ask you if
you're waiving or giving up your right to a jury trial?
THE DEFENDANT: Yes.
THE COURT: Okay. So in order for me to do that I
just wanna make sure you understand what rights you give up
when you give up your right to a jury trial. So do you know
how many people sit in a jury box?
THE DEFENDANT: About 24?
THE COURT: Okay. There's twelve of them. I mean
there's actually chairs in the jury box but there's twelve,
and out of those twelve the prosecutor as well as your
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attorney and yourself will be allowed to participate in the
selection of those twelve jurors. Do you understand?
THE DEFENDANT: Yeah.
THE COURT: Now, if you give up your right to a jury
trial you give up your right to participate in the selection
of the twelve jurors.
You also give up your right to require the prosecutor
who has the burden to convince each juror individually of
your guilt by proof beyond a reasonable doubt, and you also
give up your right to require the jurors to unanimously
agree.
In other words all twelve of them have to agree before
they can convict you of a guilt [sic] by proof beyond a
reasonable doubt. Do you understand?
THE DEFENDANT: Yes.
THE COURT: Okay. You have any questions about what
rights you give up when you give up your right to jury
trial?
THE DEFENDANT: No.
THE COURT: So you okay with them -- your attorney,
uh, submitting the -- doing a stipulated facts trial with
the exhibits submitted to the Court?
THE DEFENDANT: Have you already had a chance to
review these documents?
THE COURT: Yes.
THE DEFENDANT: And so you're familiar with?
THE COURT: When they, um, as an example when the
examiners' reports came in --
THE DEFENDANT: Mmm-hmm.
THE COURT: -- then remember the Court had to
determine, one, if you're fit –-
THE DEFENDANT: (Indiscernible)
THE COURT: -- to proceed.
THE DEFENDANT: Right.
THE COURT: And so in these reports the examiner talks
about your fitness as well as whether or not you have penal
responsibility or state of mind.
THE DEFENDANT: Mmm-hmm.
THE COURT: So I've reviewed those reports. Also your
attorney has submitted in advance the, um, exhibits. So the
Court only reviews them if they're going to, um, receive
them as part of the trial. That's what exhibits are.
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So like any trial whether or not you had a jury or
just a judge trial the parties will submit exhibits. The
exhibit list has exhibits and the other side can oppose or
not, and then the Court would determine if the exhibit is
received.
Once it's received into evidence then the Court and/or
the jury if there was a jury trial would consider that as
part of the decision-making process. So you understand
that?
THE DEFENDANT: I need to move forward in your hands.
THE COURT: But you have rights so I just wanna make
sure you understand the difference with a stipulated facts
trial versus a bench trial versus the jury trial.
So a bench trial can just be with the judges -- with
the judge and without the jury, and then you could still
have witnesses without the jury present and the Court would
just make a determination.
A stipulated, uh, facts trial is the parties just
submit the documents to the Court and then the Court will
make a review and make a decision. Do you understand?
THE DEFENDANT: Yes.
The Hawai#i Supreme Court has held:
[W]hen a defendant waives a fundamental right, there must be
an affirmative, on-the-record showing that the waiver of the
right is voluntary. It is thus incumbent on the trial court
to have a basis to conclude that a waiver is voluntary.
Unless voluntariness is gleaned from the defendant's
responses, the trial court must inquire into the
voluntariness of the waiver. Accordingly, a direct question
about voluntariness is required when the defendant's
statements in the colloquy do not indicate that the decision
to waive a jury trial is the defendant's own free and
deliberate choice.
State v. Torres, 144 Hawai#i 282, 289–90, 439 P.3d 234, 241–42
(2019) (emphasis added) (citation omitted). Neither the
Submission nor Olthafer's statements during the colloquy indicate
that the decision to waive a jury trial was his own free and
deliberate choice. The circuit court never asked Olthafer a
direct question whether he was voluntarily waiving his right to a
jury trial, whether anyone was forcing him to give up his right
to a jury trial, or whether his waiver of his right to a jury
trial was induced by promises or threats. We conclude that the
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circuit court erred by failing to ensure that Olthafer's waiver
of his right to a trial by jury was made voluntarily.
Based upon the foregoing, we vacate the Judgment and
remand to the circuit court for further proceedings.
DATED: Honolulu, Hawai#i, April 29, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Kimberly B. Taniyama, Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Charles E. Murray III, Associate Judge
Deputy Prosecuting Attorney,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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