State v. Akina

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUL-2022
07:58 AM
Dkt. 45 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
KATRINA AKINA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(NORTH & SOUTH KONA DIVISION)
(CASE NO. 3DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Katrina M. Akina (Akina) appeals

from the May 24, 2021 Judgment and Notice of Entry of Judgment

(Judgment) entered in the District Court of the Third Circuit,

Kona Division (District Court),1 convicting her of Assault in the

Third Degree (Assault 3), in violation of Hawaii Revised Statutes

(HRS) § 707-712(1)(a), (2) (2014).2

1
The Honorable Cynthia T. Tai presided.
2
HRS § 707-712(1)(a), (2) (2014) provides:

(1) A person commits the offense of assault in the
third degree if the person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person[.]

. . . .
(continued...)
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Akina raises four points of error on appeal, contending

that: (1) the Amended Complaint (Complaint) failed to charge an

offense; (2) the District Court improperly based its assessment

of Akina's credibility on her status as a defendant; (3) there is

no substantial evidence to support the conviction, because any

force Akina used was in self-defense; and (4) the District Court

failed to properly advise Akina of her right not to testify and
the implications of waiving that right during its Tachibana

colloquy.3

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Akina's points of error as follows:

(1) Akina argues that the charge in the Complaint of

Assault 3, via mutual affray, pursuant to HRS § 707-712(1)(a) and

(2), fails to state an offense, and Akina's conviction based on

that defective charge should be reversed.

"[C]onvictions based upon a defective charge will be

deemed valid unless the defendant proves that either the

complaint cannot be reasonably interpreted to charge a crime or

he or she was prejudiced by the omission." State v. Sprattling,

99 Hawai#i 312, 318, 55 P.3d 276, 282 (2002).

2
(...continued)
(2) Assault in the third degree is a misdemeanor
unless committed in a fight or scuffle entered into by
mutual consent, in which case it is a petty misdemeanor.
3
Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).

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The Complaint states, in relevant part: "On or about

. . . October [17], 2020, in [Hawai#i] County . . ., [Akina]

while in a fight or scuffle entered into by mutual consent, did

intentionally, knowingly or recklessly cause bodily injury to

another person, [the complaining witness (CW)], thereby

committing [Assault 3]."

We conclude that the Complaint states all the elements
of Assault 3, as set forth in HRS § 707-712(1)(a), as well as the

mitigating defense in HRS § 707-712(2). The charge is not

rendered defective where it sufficiently "apprises the defendant"

of the offense, see State v. Merino, 81 Hawai#i 198, 212, 915

P.2d 672, 686 (1996), but also acknowledges that a mitigating

defense applies. The State's concession of the mitigating

defense benefits Akina; thus, there is no prejudice by including

it in the charge. Sprattling, 99 Hawai#i at 318, 55 P.3d at 282.

Akina's first point of error is without merit.

(2) Akina argues that the District Court improperly

found her to be not credible due to her interest in the case as

the defendant in this criminal matter. On May 24, 2021, the

District Court found Akina guilty of Assault 3 and stated its

findings, including:
THE COURT: Now Miss Akina's case relies heavily on a
July incident and posts that were placed on Facebook. In
this Court's mind, looking at the credibility of both Miss
Akina and [CW], I think that what the posts establish is
that both [CW] and Miss Akina do not care for one another at
all. So it establishes at least to the Court that there was
essentially bad blood between the two[.]

. . . .

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Now with respect to Miss Akina's testimony as well as
[CW]'s testimony, the Court finds that Miss Akina's version
of events is different from [CW]'s and [Akina's ex-
boyfriend, who was in a relationship with [CW] at the time
of the incident], as well as the [post-incident]
observations of Officer Chaves and therefore gives less
weight to Miss Akina's testimony, especially in light of the
fact that she has an interest in the outcome of the case .

(Emphasis added).

In the context of prosecutorial misconduct, the Hawai#i

Supreme Court has explained, sua sponte:
[I]mportantly, the implication of the prosecutor's
argument, whether intended or not, was that [Basham] had no
reason to tell the truth because he was a defendant in the
case. At that point in the closing argument, the prosecutor
had not discussed any of the testimony that had been
presented during trial. The prosecutor also offered no
reason, based on the evidence, that [Basham] would have no
reason to tell the truth, other than [Basham's] status as a
defendant.
Defense counsel strongly objected to the prosecutor's
statement, arguing in response that he took the prosecutor's
comment to mean "you should not believe [Basham] because he's
a defendant in the case."

A suggestion that defendants have no reason to tell
the truth impinges upon fundamental principles of our system
of justice, including the presumption of innocence, the
burden of proof upon the government, the right to testify
without penalty, and the right to a fair trial with an
unbiased [trier-of-fact].

State v. Basham, 132 Hawai#i 97, 115-16, 319 P.3d 1105, 1123-24

(2014) (emphasis added, footnote omitted).4

4
As recounted by the supreme court in Basham:

The prosecutor in this case opened his closing
argument by stating that the only critical issue in the case
was that of witness credibility. The prosecutor continued,
"On behalf of the prosecution, I adamantly state to you,
that [the other witnesses] have been completely credible
witnesses, that they are worthy of your belief."
Immediately after communicating this unqualified endorsement
of [the other witnesses], the prosecutor compared them to
[Basham]. The prosecutor argued that "[w]hen a defendant
testifies, his credibility is to be weighed as any other
(continued...)

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This court, the Intermediate Court of Appeals (ICA),

later tried to discern the extent to which Basham overruled prior

supreme court case law, asking:
Did the Basham majority intend only to prevent the
prosecutor from arguing that a defendant has a motive to lie
due to his or her interest in the outcome of the case, or
did the Basham majority intend a broader holding that it is
improper for the [trier-of-fact] to consider the defendant's
interest in the outcome of the case in assessing the
defendant's credibility? Each interpretation is
problematic.
A person's self-interest is widely recognized as a
relevant factor to consider in evaluating the person's
credibility. The precept that people are inclined to act in
ways that further their own interests is reflected in
Hawai#i Rules of Evidence [(HRE)] Rule 609.1 (2016), which
establishes the general rule that "[t]he credibility of a
witness may be attacked by evidence of bias, interest, or
motive. It is also reflected in judicial precedent which
holds that '[b]ias, interest, or motive is always
relevant[.]'" State v. Estrada, 69 Haw. 204, 220, 738 P.2d
812, 823 (1987). Precluding the jury from considering a
defendant's interest in the outcome or result of the case in
evaluating the defendant's credibility will require the jury
to ignore a factor that is "always relevant" in evaluating
credibility. It would therefore impair and impede the
truth-seeking purpose of the criminal justice system.

On the other hand, if the [finder-of-fact] can
consider the defendant's interest in the outcome of the case
as a relevant factor in evaluating the defendant's
credibility, it is unclear why a prosecutor should be
precluded from arguing this factor.

In choosing between these alternative interpretations
of Basham, we note that the Basham majority focused on the
role of the prosecutor in its analysis, prefacing its
holding with the phrase, "Given the prosecutor's important
role in our justice system. . . ." Basham, 132 Hawai #i at
118, 319 P.3d at 1126. Indeed, the specific holding of
Basham is that "it is improper for a prosecutor in summation
to make generic arguments regarding credibility based solely
upon the status of the defendant" and that "a prosecutor may
not argue during closing argument that defendants, because
they are defendants, have no reason to tell the truth or
have the greatest motive to lie." [citation] Furthermore,
Basham did not address whether it was permissible for the
jury to consider the defendant's interest in the outcome of

4
(...continued)
witness," but "you need to keep . . . in mind" that [Basham] has
"no reason to tell you the truth."
Basham, 132 Hawai#i at 115, 319 P.3d at 1123.

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the case in assessing the defendant's credibility. Basham
also did not specifically overrule the Apilando court's
conclusion that "when a defendant takes the stand to
testify, his or her credibility can be tested in the same
manner as any other witness." [State v. Apilando, 79
Hawai#i 128, 142, 900 P.2d 135, 149 (1995).]

For these reasons, we conclude that Basham should be
read narrowly to only preclude the prosecutor from making
the generic argument regarding the defendant's interest in
the outcome of the case, and not to prevent the jury from
considering the defendant's interest in the outcome of the
case in evaluating his or her credibility. Interpreting
Basham in this manner, we conclude that the prosecutor's
Basham error was harmless and did not prejudice Magbulos'
right to a fair trial.

State v. Magbulos, 141 Hawai#i 483, 497, 413 P.3d 387, 401 (App.

2018) (footnote omitted; emphasis altered), disapproved of by

State v. Austin, 143 Hawai#i 18, 56, 422 P.3d 18, 56 (2018).

A few months after Magbulos was decided, the supreme

court issued a multi-opinioned decision in Austin. 143 Hawai#i

at 18, 422 P.3d at 18. Although the supreme court agreed on a

number of issues, the divisions concerned (1) whether a

prosecutor could ever properly argue to a jury that the defendant

lied to the jury - the majority held, in essence, "don't say

lied" – and (2) whether there were grounds to vacate the
conviction - with a majority concluding that there were not

sufficient grounds to vacate the conviction. Id. at 55-56, 422

P.3d at 55-56. In explicating its reasoning as to the don't-say-

lied issue, in a footnote, the majority (on that issue) took the

opportunity to express its disapproval of the ICA's

"misapprehen[sion] and mischaracteriz[ation]" of Basham in

Magbulos. Id. at 56 n.12, 422 P.3d at 56 n.12. The footnote

stated:

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We have previously held that it is also improper for a
prosecutor to argue to a jury that a defendant is lying
based solely on the fact that he or she is a defendant. See
State v. Basham, 132 Hawai#i 97, 116, 319 P.3d 1105, 1124
(2014). Such generic arguments call upon the jury to assume
that a defendant is motivated to lie to avoid punishment.
Because such an argument can be asserted indiscriminately as
to any defendant, regardless of the evidence, it is
completely unhelpful to the finder of fact. Moreover,
arguing that the testimony of defendants should inherently
be doubted contradicts the presumption of innocence — a
foundation of our criminal justice system. That is, a
contention that defendants are inherently motivated to lie
effectively places the burden on defendants to prove they
are testifying truthfully, which also has a chilling effect
on the constitutional right to testify. We therefore
reaffirm our decision in Basham and specifically note that
it overrules any prior precedents to the extent they are in
conflict, and we express our disapproval of those portions
of the [ICA's] recent opinion in State v. Magbulos that
misapprehend and mischaracterize our holding in Basham. See
141 Hawai#i 483, 495-98, 413 P.3d 387, 399-402 (App. 2018)
(arguing, inter alia, that [Basham] is contrary to the rule
that defendants may be impeached in the same manner as other
witnesses). Our holding today, which prohibits a prosecutor
from referring to a defendant's testimony as a lie, will
have the additional benefit of discouraging improper generic
arguments regarding a defendant's credibility and of
encouraging prosecutors to "make only those arguments that
are consistent with the trier's duty to decide the case on
the evidence." ABA Prosecution Function Standard 3–6.8(c).

We also reject any implication in Magbulos that an
appellate court does not have the duty to rectify a
prosecutor's improper arguments that prejudice a defendant
simply because "[n]o trial is perfect." 141 Hawai #i at 492,
413 P.3d at 396. All appellate courts have a responsibility
to ensure the fundamental fairness of the criminal
proceedings they review, including appropriate consideration
of opening statements and closing arguments that risk
depriving a defendant of a fair trial. See State v. Rogan,
91 Hawai#i 405, 416, 984 P.2d 1231, 1242 (1999).

Id. (emphasis added).

For various reasons, this footnote is not controlling

authority with respect to Akina's argument that the District

Court improperly found her to be not credible "especially" due to

her interest in the case as the defendant, but it nevertheless

states and otherwise implicates bedrock principles that must be

considered here. To wit, in our criminal justice system, a

defendant is presumed to be innocent, and the prosecution bears

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the burden of proof beyond a reasonable doubt. See id. The

notion that "defendants are inherently motivated to lie

effectively places the burden on defendants to prove they are

testifying truthfully[.]" Id. Such a burden has a chilling

effect on a defendant's fundamental constitutional right to

testify. Id. The trier-of-fact has a duty to decide a case on

the evidence, consistent with these principles. Id. This court
has a responsibility to ensure the fundamental fairness of the

criminal proceedings that we review. Id.

In a subsequent opinion, concerning an assertion of

prosecutorial misconduct, the supreme court reiterated its

rejection of the Magbulos analysis regarding Basham and held that

a generic reference to every defendant's interest in the outcome

of the case is an improper attack on the defendant's credibility

based solely on the defendant's status as a defendant. State v.

Salavea, 147 Hawai#i 564, 585, 465 P.3d 1011, 1032 (2020). In a

footnote discussing a standard jury instruction that a jury may

consider a witness's interest in the result of the case when

evaluating witness credibility and the weight of the evidence,

the supreme court stated:
Our holding in Basham, however, does not preclude the
prosecution from arguing that the evidence adduced at trial
shows the defendant has a particularized, non-generic
interest in the outcome that affects the credibility of the
defendant's testimony. Basham simply prohibits the
prosecution from making "generic arguments regarding a
defendant's credibility," i.e., arguments that are uncoupled
from evidence showing the defendant has a particular
interest in the outcome separate from the generic interest
shared by all defendants in criminal cases.

Id. at 585 n.29, 465 P.3d at 1032 n.29.

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While Salavea does not directly answer the question

presented in this case, it highlights the distinction between

evidence of a defendant's particularized, non-generic interest

that may be affected by the outcome of a case – which can be

properly argued by the prosecution and considered by the trier-

of-fact – and the generic interest shared by all defendants in

all cases. The supreme court held that such generic arguments,
uncoupled from evidence of a defendant's particularized interest,

constituted prosecutorial misconduct. Id. at 585, 465 P.3d at

1032.

Here, the District Court's decision rested heavily on

its determination of the credibility of Akina's testimony versus

the credibility of CW and Akina's ex-boyfriend, who was in a

relationship with CW. The District Court gave less weight to

Akina's testimony "especially in light of the fact that she has

an interest in the outcome of the case." The court identified no

interest in the case separate from Akina's generic interest in

the outcome that is shared by all criminal defendants. In light

of the cases discussed above, and based on the circumstances of

this case, we hold that the District Court's "especial" reliance

on Akina's generic, non-specific interest in the outcome of this

case – uncoupled from any evidence showing Akina had a separate,

particular interest in the outcome separate from the generic

interest shared by all defendants in criminal cases – in

determining that Akina's testimony was less credible, and

therefore entitled to less weight, violated Akina's fundamental
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fair trial rights. Given the nature and scope of the evidence in

this case, we cannot conclude that the District Court's error in

this regard was harmless beyond a reasonable doubt. Therefore,

the Judgment must be vacated.

(3) Akina argues the State failed to disprove her

justification of self-defense. To establish a self-defense

claim, the defendant must present credible evidence of facts
constituting the defense, and the burden then shifts to the

prosecution to disprove the defense beyond a reasonable doubt.

State v. Lubong, 77 Hawai#i 429, 431, 886 P.2d 766, 768 (App.

1994). The test for self-defense "involves a two-step analysis;

a determination that the defendant held a subjective belief that

the force was necessary and that the subjective belief was

objectively reasonable." State v. Kawelo, CAAP-XX-XXXXXXX. 2015

WL 7421396, at *2 (Haw. App. Nov. 20, 2015) (SDO).

Even assuming, arguendo, that Akina justifiably bit CW

in self-defense, viewing the evidence in the light most favorable

to the prosecution, the State brought forward evidence that could

be viewed as disproving that Akina was justified in scratching

CW's face, as the testimony indicates this occurred not in the

midst of the mutual affray, but as the fight was ending. Akina

testified: "Evan told me to let go so I ended up, you know,

pushing her face. I remember scratching her, pushing her face

away from me. Finally let her go. Pushed her away. She ran

into the house." While by no means overwhelming evidence, there

was substantial evidence to support a conclusion that Akina did
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not subjectively believe that scratching CW's face was

immediately necessary to protect herself (Akina) from unlawful

force,5 and/or that an objectively reasonable person would not

deem it necessary for self-defense.

(4) Akina contends the District Court failed to engage

her in a proper Tachibana colloquy, and that it cannot be

concluded that she knowingly, intelligently, and voluntarily
waived her right not to testify. Akina argues that the District

Court's colloquies were defective in two ways.

First, Akina contends that the colloquy given at the

start of trial was rendered constitutionally infirm because the

District Court said: "Now you have a constitutional right not to

testify and to remain silent." (Emphasis added). Akina

correctly points out that the right at issue here is the right

not to testify, not the right to remain silent, which is commonly

understood to be a Miranda warning.6

In State v. Han, 130 Hawai#i 83, 93, 306 P.3d 128, 138

(2013), the supreme court stated that the phrase "right to remain

silent" did not satisfy Tachibana:
Finally, the court should advise a defendant that he
or she has the right not to testify. Tachibana, 79 Hawai #i
at 235, 900 P.2d at 1303. Here, the court told Petitioner
that he had "the constitutional right to remain silent[,]"
and said nothing about the right not to testify. However,
for a defendant, "remaining silent" could mean something

5
HRS § 703-304(1) (2014) provides, in relevant part: "[T]he use of
force upon or toward another person is justifiable when the actor believes
that such force is immediately necessary for the purpose of protecting himself
against the use of unlawful force by the other person on the present
occasion."
6
Miranda v. Arizona, 384 U.S. 436 (1966).

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other than "not testifying," since the phrase "right to
remain silent" popularly invokes the familiar Miranda
warnings. As Chief Justice Rehnquist noted in his opinion
in Dickerson v. United States, "[Miranda] has become
embedded in routine police practice to a point where the
warnings have become part of our national culture." 530
U.S. 428, 430, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). A
defendant could be confused if a court states simply, "you
have the right to remain silent" without using the
accompanying phrase, "you have the right not to testify ."

Han, 130 Hawai#i at 93 n.8, 305 P.3d at 138 n.8 (emphasis

altered).

Thus, Han supports a conclusion that an advisement that
includes the right to remain silent is not necessarily defective,

so long as the defendant is also advised that he or she has a

right not to testify. Akina cites no authority to the contrary.

Therefore, we decline to conclude that the District Court's

colloquy was deficient on that basis alone.

Akina further argues that the District Court only

advised her that no one could prevent her from testifying if she

wanted to do so, but failed to advise her that no one could force

her to testify if she did not want to. In reviewing whether
various colloquies passed constitutional muster, the supreme

court has emphasized that the right not to testify is equally as

protected as the right to testify, and that trial courts must

engage in a colloquy with the defendant when he or she chooses to

testify, to ensure that the waiver of the right not to testify is

knowing, intelligent, and voluntary. See State v. Martin, 146

Hawai#i 365, 378-79, 463 P.3d 1022, 1035-36 (2020); State v.

Torres, 144 Hawai#i 282, 294, 439 P.3d 234, 246 (2019).

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After the State rested its case, the District Court

administered its final, colloquy as follows:
[PROSECUTOR]: . . . State rests.

THE COURT: Okay. Mr. Sylva [(defense counsel)], your
witness?
MR. SYLVA: We would only present one possible
witness, Your Honor, which would be Miss Akina. I think
prior the Court may want to do the --

THE COURT: Do the colloquy to discuss whether or not
she would like to testify; correct?

MR. SYLVA: Yes, Your Honor.
THE COURT: Okay.
So, Miss Akina, as discussed with you at the beginning
when you walked into the room we discussed your
Constitutional right to testify in your own defense; right?

[AKINA]: Yes.

THE COURT: You remember that?

[AKINA]: Yes, Your Honor.

THE COURT: And I stated that this was your decision
and your decision alone to make; correct?
[AKINA]: That's right.

THE COURT: And while you are free to speak to Mr.
Silva [sic]about this decision, you must understand that
this is something that you must decide –-
[AKINA]: Yes.

THE COURT: -- and agree to. Not your lawyer.
[AKINA]: Yes.
THE COURT: Okay. If you decide to testify the
Prosecutor will be allowed to cross-examine you.
[AKINA]: Yes.

THE COURT: Now you have a Constitutional right not to
testify and to remain silent. And if that's the case the
Court cannot hold your silence against you in deciding your
case. Okay?
It's the understanding of the Court that you are
ambivalent right now. Do you wish to testify or not?

[AKINA]: Can I ask him?
THE COURT: You can speak to your lawyer.

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(Discussion between Ms. Akina and Counsel.)

THE COURT: Miss Akina, I need to hear from you with
your words –-
[AKINA]: Oh, yes. Yes, Your Honor, I would like to
testify.

THE COURT: Okay. Very well. Please take the stand.

In Torres, the supreme court explained, inter alia:
This court's case law clearly demonstrates that when 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 [fundamental right] is the defendant's own free
and deliberate choice.

Torres, 144 Hawai#i at 289-90, 439 P.3d at 241-42 (citation

omitted).

With respect to the right not to testify, the supreme

court held:
A defendant in a criminal case "has an absolute right
not to testify." Salinas v. Texas, 570 U.S. 178, 184
(2013). In Hawai#i, the right not to testify has been
recognized since as early as the nineteenth century. See
The King v. McGiffin, 7 Haw. 104, 113 (Haw. Kingdom 1887)
(holding that a comment by the prosecution about the
defendant's failure to testify was "highly improper, and
contrary to the statute" although not prejudicial in the
particular case).
This right is explicitly guaranteed by the United
States Constitution under the Fifth and Fourteenth
Amendments and by the Hawai#i Constitution under article I,
section 10. Monteil, 134 Hawai#i at 369, 341 P.3d at 575.
The Fifth Amendment's protection is "fulfilled only when an
accused is guaranteed the right to remain silent unless he
chooses to speak in the unfettered exercise of his own will.
The choice of whether to testify in one's own defense is an
exercise of the constitutional privilege." Rock v.
Arkansas, 483 U.S. 44, 53 (1987). Additionally, the
Fourteenth Amendment to the United States Constitution
secures "the right of a criminal defendant to choose between
silence and testifying [o]n his own behalf." Ferguson v.
Georgia, 365 U.S. 570, 602 (1961) (Clark, J., concurring);
see also Harris, 401 U.S. at 225 ("Every criminal defendant

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is privileged to testify in his own defense, or to refuse to
do so.").
Under our current procedures, however, the right not
to testify does not receive protection equivalent to the
corresponding right to testify in one's own defense--a
foundational constitutional right of equivalent stature.
That is, one fundamental right (the right to testify) is
more greatly protected than the equally fundamental parallel
right (the right not to testify).
As discussed, we held in Lewis that courts must advise
a defendant prior to the start of trial of both the right to
testify and the right not to testify. 94 Hawai #i at 297, 12
P.3d at 1238. This advisement supplements the "ultimate
colloquy" regarding the right to testify that we held in
Tachibana must be given at the close of the defendant's case
if the defendant has not testified. 79 Hawai #i at 237 n.9,
900 P.2d at 1304 n.9. Yet we have thus far declined to
require trial courts to engage the defendant in a
corresponding colloquy regarding the right not to testify
when a defendant elects to take the stand. See Lewis, 94
Hawai#i at 295-96, 12 P.3d at 1236-37. In other words, we
have required courts to confirm that a defendant's waiver of
the right to testify is knowing, intelligent, and voluntary,
but we have not required a similar confirmation regarding a
defendant's waiver of the fundamental right not to testify.
This disparate treatment makes it easier for a
defendant in a criminal case to waive the right not to
testify than to waive the right to testify because there is
no "ultimate colloquy" from the court regarding the right
not to testify and its consequences. By contrast, when a
defendant waives the right to testify, the defendant must
make an on-the-record, affirmative choice by answering
questions from the court confirming such a decision. This
case demonstrates why the right not to testify deserves
protection that is equal to that of the right to testify.
In Tachibana, this court recognized that there was a
necessary balance between the right to testify and the right
not to testify. 79 Hawai#i at 235, 900 P.2d at 1302. We
noted the risk that advising the defendant of the right to
testify could influence the defendant's decision on whether
to waive the right not to testify, which was a
"constitutionally explicit and more fragile right." Id.
(quoting United States v. Martinez, 883 F.2d 750, 760 (9th
Cir. 1989)). Thus, the Tachibana court advised trial courts
to advise defendants of both the right to testify and the
right not to testify in order to "reduce the possibility
that the trial court's colloquy could have any inadvertent
effect on either the defendant's right not to testify or the
attorney-client relationship." Id. at 237 n.9, 900 P.2d at
1304 n.9.
This court reiterated the importance of this "even
balance" between a defendant's right to testify and the
right not to testify in Monteil. 134 Hawai #i at 370, 341
P.3d at 576. We explained that "Hawai#i has historically
protected both the right to testify and the right not to
testify." Id. at 369, 341 P.3d at 575. The danger in

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providing an "imbalance in information" between the right to
testify and the right not to testify, we explained, was that
the "more fragile right" not to testify would be threatened
because defendants that choose to testify would not be
informed of the "relevant circumstances" of their decision
from the beginning of the trial. Id. at 372, 341 P.3d at
578. Specifically, the court reasoned that the failure to
advise a defendant that the exercise of the right not to
testify "could not be used against him in deciding the
case," undermined the purposes of the pretrial advisement:
to limit post-conviction challenges and to avoid
"inadvertently influenc[ing]" the defendant's decision-
making process in deciding whether to testify. Id.
These repeated statements of the importance of
properly balancing the constitutional right to testify with
the equally important right not to testify are at odds with
our current practice of not requiring a Tachibana colloquy
when a defendant waives the right not to testify. The
disparity is even more striking when we consider other
parallel contexts in which our precedent requires trial
courts to conduct an on-the-record colloquy to ensure that a
waiver of a constitutional right is knowing, intelligent,
and voluntary.

. . . .
Tachibana, as explained, held that the right to
testify is a fundamental right and that a trial court is
required to engage in an on-the-record colloquy to ensure
that waiver of the right is knowing, intelligent, and
voluntary. 79 Hawai#i at 236, 900 P.2d at 1303. Tachibana
recognized that the right to testify derives partly from the
right not to testify as provided by the Fifth Amendment to
the United States Constitution. Id. at 231, 900 P.2d at
1298. Thus, this court held that the decision whether to
testify or not testify was a decision that was required to
be decided by the defendant, not by defense counsel, and
that trial courts had a duty to ensure that the waiver of
the right to testify was knowing, intelligent, and
voluntary. See id. at 236, 900 P.2d at 1303.
. . . Like other fundamental rights, the waiver of the
right not to testify should require a trial court to engage
in an on-the-record colloquy with the defendant to ensure
that the waiver is knowing, intelligent, and voluntary.
This is necessary to protect the "constitutionally explicit
and more fragile right," Tachibana, 79 Hawai #i at 235, 900
P.2d at 1302, that has been "historically protected" by
Hawai#i law. Monteil, 134 Hawai#i at 369, 341 P.3d at 575.
Additionally, adopting such an approach would be consistent
with some of the important purposes of the colloquy
requirement; it would protect a defendant from testifying
based upon belief or advice that to do otherwise would
result in an inference of guilt, it would reduce the
possibility that the trial court's colloquy could
"inadvertent[ly] effect" the defendant's right not to
testify, and it would reduce appeals (as exemplified in this
case) and post-conviction challenges based on the
defendant's asserted lack of a knowing, intelligent, and
voluntary waiver of the right not to testify. See Murray,

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116 Hawai#i at 11-12, 169 P.3d at 963-64; Tachibana, 79
Hawai#i at 236, 900 P.2d at 1303. Thus, we hold that trial
courts are required to engage in an on-the-record colloquy
with a defendant when the defendant chooses to testify to
ensure that a waiver of the right not to testify is knowing,
intelligent, and voluntary. The implication of such a
requirement merely requires the trial court to give the
Tachibana colloquy to a defendant whether or not the
defendant elects to testify. That is, we are providing
equal treatment to two fundamental constitutional rights
that merit equivalent protection. This requirement will be
effective in trials beginning after the filing date of this
opinion.

Torres, 144 Hawai#i at 292-95, 439 P.3d at 244-47 (cleaned up;
emphasis added).

Here, in its final colloquy, the District Court asked

Akina, "when you walked into the room we discussed your

Constitutional right to testify in your own defense; right?" and

Akina said yes. The court then asked "You remember that?" but it

is unclear whether the court was asking if Akina remembered

having the "discussion" or if Akina remembered what those rights

were. Akina again answered yes. Without further information on

the right to testify, the court next moved on to, "And I stated

that this was your decision and your decision alone to make;

correct?" Akina responded, "That's right." The court followed

with, "And while you are free to speak to Mr. Silva [sic] about

this decision, you must understand that this is something that

you must decide -- " Akina interrupted to say, "Yes." The court

finished, "-- and agree to. Not your lawyer." Akina again said,

"Yes."

The District Court then advised Akina, "If you decide

to testify the Prosecutor will be allowed to cross-examine you."

Although no question was posed, Akina responded, "Yes."

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Next the court stated, "Now you have a Constitutional

right not to testify and to remain silent. And if that's the

case the Court cannot hold your silence against you in deciding

your case. Okay?" Without waiting for a response, the court

continued, "It's the understanding of the Court that you are

ambivalent right now. Do you wish to testify or not?"

At this point, although the District Court had provided
some important advisements concerning the right not to testify,

the court had not engaged in dialogue or true colloquy

establishing Akina's understanding of her rights. Indeed, the

court received no response and made no attempt to inquire as to

Akina's understanding about her right not to testify.

When faced with the question of whether she "wished" to

testify or not, Akina's response did not indicate understanding,

rather she said "Can I ask him?" apparently referring to her

lawyer.

After Akina consulted with counsel, the court asked no

questions, instead telling Akina, "I need to hear from you with

your words - [.]" While Akina's response clearly stated that she

"would like to testify," in light of the court's recognition of

Akina's ambivalence, and Akina's request to ask her lawyer in

response to the court's questioning if she wished to testify or

not, it is unclear whether the final decision to testify was

Akina's decision, knowingly, intelligently, and voluntarily made.

A defendant's right to testify is violated when the

colloquy does not establish "an objective basis for finding that
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[the defendant] knowingly, intelligently, and voluntarily gave

up" their right to testify. Han, 130 Hawai#i at 91, 306 P.3d at

136. As discussed at length in Torres, the right not to testify

is equally protected, and thus, a defendant's right not to

testify is violated when the colloquy does not establish an

objective basis for finding that the defendant knowingly,

intelligently, and voluntarily gave up their right not to
testify. Akina specifically argues that the court failed to

advise her that "no one could force her to testify if she did not

want to." While that advisement might have been helpful here to

establish a knowing, intelligent, and voluntary waiver of Akina's

right not to testify, it has not been specifically mandated in

Torres or the cases following Torres. Nevertheless, on this

record, based on the totality of the facts and circumstances, we

cannot conclude that Akina's waiver of her right not to testify

was knowingly, intelligently, and voluntarily made.

For the reasons discussed above, the Judgment is

vacated and we remand this case for a new trial.

DATED: Honolulu, Hawai#i, July 29, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Shay F. Shibata, Chief Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
County of Hawai#i, Associate Judge
for Defendant-Appellant.

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