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Electronically Filed
Supreme Court
SCWC-11-0000666
27-JAN-2014
09:27 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
KAOLINO RICHARD BAKER, Petitioner/Defendant-Appellant.
SCWC-11-0000666
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000666; FC-CR NO. 10-1-0329K)
JANUARY 27, 2014
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
WITH ACOBA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY RECKTENWALD, C.J.
Kaolino Richard Baker (Baker) was charged with one
count of Abuse of Family or Household Member in relation to an
incident involving his former girlfriend. During a pre-trial
hearing, Baker, represented by a deputy public defender, stated
that he had executed a “Waiver of Jury Trial” form. On the form,
Baker provided his initials next to all of the relevant
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paragraphs, except the paragraph stating that he was entering the
waiver of his own free will and that no promises or threats had
been made to him in order to induce his waiver of his right to a
jury trial. During a brief exchange, the family court asked
Baker several questions, none of which addressed the
voluntariness of his waiver.
Following a bench trial, Baker was convicted of the
charged offense. Baker appealed to the Intermediate Court of
Appeals (ICA) and argued, inter alia, that the family court erred
in failing to ensure that he had “fully” waived his right to a
jury trial. The ICA, however, affirmed his conviction and
determined that under the totality of the circumstances, Baker
validly waived his right to a jury trial.
In his application for writ of certiorari, Baker raises
the following questions: (1) whether he validly waived his right
to a jury trial; (2) whether the family court erred in
considering a written police report not admitted into evidence in
determining his guilt; (3) whether the family court erred in
considering the same police report during sentencing; and (4)
whether the ICA erred in suggesting that Baker seek relief
pursuant to Rule 40 of the Hawai#i Rules of Penal Procedure
(HRPP) with respect to the family court’s purported consideration
of the police report. Based on the record before us, we conclude
that the family court failed to ensure that Baker’s waiver of his
right to a jury trial was voluntary. We therefore vacate both
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the ICA’s judgment and the family court’s judgment and remand the
case for a new trial. Given this disposition, we do not address
Baker’s arguments relating to the police report, and the ICA’s
suggestion that Baker seek relief pursuant to HRPP Rule 40.
I. Background
The following factual background is taken from the
record on appeal.
A. Family court proceedings
Baker was charged with Abuse of Family or Household
Member, in violation of Hawai#i Revised Statutes (HRS) § 709-
906(1).1 At a February 23, 2011 Entry of Plea hearing, Baker,
represented by a deputy public defender (DPD), pled not guilty.2
The DPD then stated that Baker had executed a “Waiver of Jury
Trial” form. The form provided as follows:3
1
HRS § 709-906(1) (Supp. 2010) provides:
It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household
member or to refuse compliance with the lawful order
of a police officer under subsection (4). The police,
in investigating any complaint of abuse of a family or
household member, upon request, may transport the
abused person to a hospital or safe shelter.
For the purposes of this section, “family or household
member” means spouses or reciprocal beneficiaries,
former spouses or reciprocal beneficiaries, persons
who have a child in common, parents, children, persons
related by consanguinity, and persons jointly residing
or formerly residing in the same dwelling unit.
2
The Honorable Andrew Wilson presided over the Entry of Plea
hearing.
3
As it appears in the record, the first page of the Waiver of Jury
Trial form is truncated on the right side, such that words or portions of
words at the right edge of paragraphs 2 and 3 are missing and cannot be seen.
(continued...)
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1. I waive my right to a jury trial in the
following charge(s):
AFHM[4]
PLEASE PLACE YOUR INITIALS IN THE SPACES PROVIDED IF
YOU UNDERSTAND AND AGREE WITH THE FOLLOWING STATEMENTS
2. ____ I understand that I have the
constitutional right to a jury trial.
Furthermore, I unde[rstand] that a jury trial is
a trial in the Circuit Court before a judge and
a jury and that I can partic[ipate] in the
process of selecting a jury of twelve (12)
citizens from the Third Circuit. This jury
w[ould hear] the evidence in my case and then
decide if I am guilty or not guilty. Finally I
understand [in] order for me to be convicted by
a jury, their vote must be unanimous.
3. ____ I know that if I give up my right to a jury
trial, the trial will be held in this Court
be[fore a] judge who alone would decide if I am
guilty or not guilty. I request that my case be
tried [before a] judge.
. . .
4b. ____ I am satisfied with my attorney, and am
entering this waiver with his her advice.
5. ____ I know that the punishment cannot be
increased merely because I want a jury trial.
6. ____ I am entering this waiver of my own free
will after careful consideration. No promises
or threats have been made to me to induce me to
waive my right to a jury trial.[5]
Baker’s initials appear in the spaces next to
paragraphs 2, 3, 4b, and 5, but do not appear in the space next
3
(...continued)
The portions of paragraphs 2 and 3 that cannot be seen are set forth in
brackets above. The words and portions of words included in the brackets are
taken from Baker’s application. Baker does not argue that the form as
executed was missing these words or portions of words.
4
“AFHM,” which was handwritten, apparently refers to abuse of
family or household member.
5
Paragraph 4a was directed towards pro se defendants. Although
Baker initialed next to this paragraph, it appears to have been subsequently
lined through.
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to paragraph 6. Baker signed his name below paragraph 6. Below
Baker’s signature, the form included the following language:
CERTIFICATE OF COUNSEL
As counsel for defendant and as an officer of
the Court, I certify that I have read and explained
fully the foregoing, that I believe that the defendant
understands the document in its entirety, that the
statements contained therein are in conformity with my
understanding of the defendant’s position, that I
believe that the defendant’s waiver is made
voluntarily and with intelligent understanding of the
nature of the charge and possible consequences, and
that the defendant signed this form in my presence.
Baker’s counsel signed below this paragraph. During
the entry of plea hearing, the following exchange occurred:
THE COURT: You’re Kaolino Baker?
MR. BAKER: Yes.
THE COURT: I’m looking at a document, and showing it
to you, entitled “Waiver of Jury Trial.”
It’s two pages. Is that your signature on
the back?
MR. BAKER: Yes.
THE COURT: And you signed this on February 23, 2011?
MR. BAKER: Yes.
THE COURT: Do you have any questions about this
document?
MR. BAKER: No.
THE COURT: In the last 24 hours have you had any
alcohol or any drugs or medicine?
MR. BAKER: No.
THE COURT: Is your mind clear?
MR. BAKER: Yes.
THE COURT: You speak and understand the English
language?
MR. BAKER: Yes.
THE COURT: Okay. Do you have –- you’ve gone over
this with your lawyer so far?
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MR. BAKER: Yes.
THE COURT: Okay. I’m going to hand this back to you
and have you sign this, that you
acknowledge that we went over this in open
court and you know what you’re doing.
Okay?
The Court will order you to return here on
March 23rd at 8:30 a.m. for pretrial
conference.
[DPD]: Thank you.
Baker again signed the form below the following
language: “I acknowledge that . . . Judge A. Wilson questioned me
personally in open court to make sure that I knew what I was
doing and understood this form before I signed it.”
The family court held a bench trial on June 8, 2011,
and August 10, 2011,6 at the conclusion of which the family court
determined that the State proved beyond a reasonable doubt that
Baker committed the offense of Abuse of Family or Household
Member. Accordingly, the family court entered its Judgment,
Guilty Conviction and Sentence finding Baker guilty, and
sentencing him to two years of probation.7 Baker timely filed a
notice of appeal.
B. ICA Appeal
In his opening brief, Baker argued, inter alia, that
6
The Honorable Joseph P. Florendo, Jr., presided.
7
A special term of Baker’s probation required him to serve 30 days
in jail, 25 of which were suspended for a period of two years, provided that
Baker: (1) remained arrest and conviction free; (2) complied with counseling
orders; (3) remained drug and alcohol free; and (4) completed court ordered
assessments or counseling. Baker also received one day of credit for time
served.
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the family court plainly erred in failing to ensure that he had
“fully” waived his right to a jury trial. Specifically, Baker
argued that he did not “knowingly and voluntarily” waive his
right to a jury trial. Baker noted that the waiver form “was not
adequately filled out,” and that the family court “failed to
conduct a colloquy to ensure that Baker knowingly and voluntarily
waived his right to a jury trial.”
In its answering brief, the State argued that Baker’s
waiver of his right to a jury trial was sufficient because he
executed a written waiver and stated in a colloquy that he
understood what he was doing after discussing it with his
attorney.
The ICA issued a memorandum opinion affirming the
judgment of the family court. The ICA held that, under the
totality of the circumstances, Baker validly waived his right to
a jury trial. The ICA noted that Baker had submitted the waiver
of jury trial form, had been questioned by the family court, and
that nothing in the record suggested that Baker had been
pressured or coerced into waiving his right to a jury trial. The
ICA also rejected Baker’s other arguments on appeal. On July 16,
2013, the ICA entered its judgment on appeal, and, on
September 16, 2013, Baker timely filed his application for writ
of certiorari. On September 25, 2013, the State timely filed its
response.
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II. Standard of Review
The validity of a criminal defendant’s waiver of
his or her 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. Friedman, 93 Hawai#i 63, 67, 996 P.2d 268, 272 (2000)
(citations and quotation marks omitted).
III. Discussion
In his application, Baker argues that the family court
did not adequately ensure that his waiver of his right to a jury
trial was made voluntarily, knowingly, and intelligently. Baker
asserts that the waiver form was not properly executed, and that
the family court’s colloquy was “woefully deficient.” For the
reasons set forth below, we conclude that the family court failed
to ensure that Baker’s waiver of his right to a jury trial was
voluntary and that Baker is therefore entitled to a new trial.
“Trial by jury is considered fundamental to our system
of criminal justice.” State v. Pokini, 55 Haw. 640, 656, 526
P.2d 94, 108 (1974). Accordingly, “[t]rial by jury is the normal
and, with occasional exceptions, the preferable mode of disposing
of issues of fact in criminal cases above the grade of petty
offenses.” Patton v. United States, 281 U.S. 276, 312 (1930),
abrogated in part on other grounds, Williams v. Florida, 399 U.S.
78 (1970); see also United States v. Goodwin, 457 U.S. 368, 383
n.18 (1982). In general, a criminal defendant is entitled to a
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trial by jury when the potential penalty for the charged crime is
imprisonment for six months or more.8 See HRS § 806-60 (1993).
To help ensure that a defendant is aware of his right to a jury
trial, HRPP Rule 5(b)(1) provides that, during arraignment, “the
court shall, in appropriate cases, inform the defendant of the
right to jury trial in the circuit court and that the defendant
may elect to be tried without a jury in the district court.”
Here, Baker had a right to a jury trial because a person
convicted of abuse of a family or household member, a
misdemeanor, may be imprisoned for up to one year. See HRS §§
709-906(5) and 706-663.
As HRPP Rule 5(b)(1) makes clear, however, a defendant
is entitled to waive the right to be tried by a jury. See State
v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993); HRPP Rule
5(b)(3) (“In appropriate cases, the defendant shall be tried by
jury in the circuit court unless the defendant waives in writing
or orally in open court the right to trial by jury.”). “A waiver
8
In certain cases, this court has recognized the right to a jury
trial under the Hawai#i Constitution for particular offenses even though the
maximum authorized terms of imprisonment do not exceed six months. See, e.g.,
State v. Nakata, 76 Hawai#i 360, 374, 878 P.2d 699, 713 (1994). In this
regard, if the maximum term of imprisonment for a particular offense does not
exceed thirty days, it is presumptively a petty offense to which the right to
a jury trial does not attach. State v. Lindsey, 77 Hawai#i 162, 165, 883 P.2d
83, 86 (1994). This presumption can only be overcome in extraordinary cases,
when consideration of the treatment of the offense at common law, the gravity
of the offense, and the authorized penalty for the offense, “unequivocally
demonstrates that society demands that persons charged with the offense at
issue be afforded the right to a jury trial.” Id. If the maximum authorized
term of imprisonment for an offense is more than thirty days but not more than
180 days, no presumption applies, and the three factors set forth above must
be considered to determine whether the right to a jury trial attaches. Id. at
86 n.5, 883 P.2d at 165 n.5.
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is the knowing, intelligent, and voluntary relinquishment of a
known right.” Friedman, 93 Hawai#i at 69, 996 P.2d at 274. This
court reviews “the validity of a defendant’s waiver of his/her
right to a jury trial under the totality of the circumstances
surrounding the case, taking into account the defendant’s
background, experience, and conduct.” Id. at 70, 996 P.2d at
275; State v. Sprattling, 99 Hawai#i 312, 321, 55 P.3d 276, 285
(2002).
A defendant’s waiver of the right to a jury trial must
also be approved by the trial court. See HRPP Rule 23(a) (“Cases
required to be tried by jury shall be so tried unless the
defendant waives a jury trial with the approval of the court.”
(emphasis added)). “The granting of such approval is a ‘serious
and weighty responsibility[.]’” United States v. Saadya, 750
F.2d 1419, 1421 (9th Cir. 1985) (quoting Johnson v. Zerbst, 304
U.S. 458, 465 (1938)); see also State v. Chong Hung Han, 130
Hawai#i 83, 92, 306 P.3d 128, 137 (2013) (quoting United States
v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997)). As the
Supreme Court has explained,
the duty of the trial court in [this] regard is not to
be discharged as a mere matter of rote, but with sound
and advised discretion, with an eye to avoid
unreasonable or undue departures from that mode of
trial or from any of the essential elements thereof,
and with a caution increasing in degree as the
offenses dealt with increase in gravity.
Patton, 281 U.S. at 312-13. The failure to obtain a valid waiver
constitutes reversible error. Sprattling, 99 Hawai#i at 321, 55
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P.3d at 285.
Consistent with this “serious and weighty
responsibility,” the trial court has an obligation to ensure,
through an appropriate oral colloquy in court, that the waiver
was knowingly, intelligently, and voluntarily given. See State
v. Gomez-Lobato, 130 Hawai#i 465, ___, 312 P.3d 897, 901 (2013);
cf. Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d 1293 (1995)
(requiring on-the-record waiver of defendant’s right to testify).
In other words, while the defendant may execute a written waiver
form, the court should also engage in an appropriate oral
colloquy with the defendant to establish that the waiver was
knowing, intelligent, and voluntary. See Gomez-Lobato, 130
Hawai#i at ___, 312 P.3d at 901; Ibuos, 75 Haw. at 121, 857 P.2d
at 578 (“The necessity for colloquy between the court and a
defendant is especially apparent in light of the importance we
place on the personal nature of a defendant’s right to a jury
trial.”); Friedman, 93 Hawai#i at 68, 996 P.2d at 273 (advising
trial courts to engage in an oral colloquy to aid in ensuring
voluntary waivers). The failure to obtain a valid waiver
constitutes reversible error. Sprattling, 99 Hawai#i at 321, 55
P.3d at 285.
Generally, “[w]here it appears from the record that a
defendant has voluntarily waived a constitutional right to a jury
trial, the defendant carries the burden of demonstrating by a
preponderance of the evidence that his/her waiver was
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involuntary.” Friedman, 93 Hawai#i at 69, 996 P.2d at 274;
Ibuos, 75 Haw. at 121, 857 P.2d at 578. Here, however, the
record does not indicate that the family court considered the
voluntariness of Baker’s waiver.
Whether Baker’s waiver was voluntary appears to have
been addressed in paragraph six of the waiver form, which
included the following language: “I am entering this waiver of my
own free will after careful consideration. No promises or
threats have been made to me to induce me to waive my right to a
jury trial.” Baker signed his initials next to every paragraph
on the waiver form except this one. The State notes that Baker
signed the waiver form immediately below paragraph 6. Baker
argues, however, that he overlooked paragraph 6 because it was at
the top of the second page of the waiver form. In short, the
incomplete waiver form fails to support a finding that Baker’s
waiver was voluntarily given.
The court’s in-court colloquy is also silent with
respect to voluntariness. As stated above, during the entry of
plea hearing, the following exchange occurred:
THE COURT: You’re Kaolino Baker?
MR. BAKER: Yes.
THE COURT: I’m looking at a document, and showing it to you,
entitled “Waiver of Jury Trial.” It’s two pages. Is
that your signature on the back?
MR. BAKER: Yes.
THE COURT: And you signed this on February 23, 2011?
MR. BAKER: Yes.
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THE COURT: Do you have any questions about this document?
MR. BAKER: No.
THE COURT: In the last 24 hours have you had any alcohol or any
drugs or medicine?
MR. BAKER: No.
THE COURT: Is your mind clear?
MR. BAKER: Yes.
THE COURT: You speak and understand the English language?
MR. BAKER: Yes.
THE COURT: Okay. Do you have –- you’ve gone over this with your
lawyer so far?
MR. BAKER: Yes.
THE COURT: Okay. I’m going to hand this back to you and have you
sign this, that you acknowledge that we went over this
in open court and you know what you’re doing. Okay?
The Court will order you to return here on March 23rd
at 8:30 a.m. for pretrial conference.
[DPD]: Thank you.
The State argues that HRPP Rule 5(b)(3)9 does not
9
HRPP Rule 5(b)(3) provides:
(3) Jury Trial Election. In appropriate cases, the
defendant shall be tried by jury in the circuit court
unless the defendant waives in writing or orally in
open court the right to trial by jury. If the
defendant does not waive the right to a trial by jury
at or before the time of entry of a plea of not
guilty, the court shall commit the defendant to the
circuit court for trial by jury. Within 7 days after
the district court’s oral order of commitment
(i) the district court shall sign its written order of
commitment,
(ii) the clerk shall enter the district court’s
written order, and
(iii) the clerk shall transmit to the circuit court
all documents in the proceeding and any bail deposited
with the district court; provided, however, that if
trial by jury is waived in the circuit court, the
proceedings may be remanded to the district court for
disposition.
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require “that all boxes on any particular form must be checked,”
nor “does the rule require any colloquy.” As stated above,
however, under HRPP Rule 23(a), a defendant’s waiver of his right
to a jury trial must be approved by the court, and this is a
“serious and weighty responsibility.” See Saadya, 750 F.2d at
1421. Moreover, as this court has stated, “[a]lthough [HRPP Rule
23(a)] indicates the waiver may be given by written or oral
consent, the rule does not relieve the court of its obligation to
ensure, through an appropriate oral colloquy in court, that the
waiver was knowingly, intelligently, and voluntarily given.”
Gomez-Lobato, 130 Hawai#i at ___, 312 P.3d at 901. Here, Baker
failed to sign his initials next to the paragraph addressing
voluntariness on the written waiver form, and none of the court’s
questions were directed towards determining the voluntariness of
Baker’s waiver. Based on the foregoing, we conclude that the
family court failed to ensure that Baker’s waiver of his right to
a jury trial was voluntary.10
IV. Conclusion
Accordingly, the ICA erred in holding that Baker’s
waiver of his right to a jury trial was valid. We therefore
10
In light of our ruling that the family court did not ensure that
Baker’s waiver of his right to a jury trial was voluntary, we do not consider
whether the family court’s in-court colloquy was sufficient to establish an
intelligent and knowing waiver of that right.
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vacate the ICA’s July 16, 2013 judgment, and the family court’s
August 10, 2011 judgment, and remand the case for a new trial.
James S. Tabe
/s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Linda L. Walton
for respondent
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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