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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-29688
                                                              31-JAN-2014
                                                              10:19 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                            ---o0o---
________________________________________________________________

         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

          HENRY POMROY, Petitioner/Defendant-Appellant.
________________________________________________________________

                                SCWC-29688

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
         (ICA NO. 29688; Report No. C06030300 (3P207-738))

                            January 31, 2014

     ACOBA, McKENNA, AND POLLACK, JJ.; WITH RECKTENWALD, C.J.,
             DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                 OPINION OF THE COURT BY MCKENNA, J.

I.    Introduction

       At issue in this appeal is whether Petitioner/Defendant-

Appellant Henry Pomroy (“Pomroy”) was adequately informed of his

right to testify.    Pomroy presents the following questions on

certiorari:

           A. Whether the Intermediate Court of Appeals determined in
           error that the district court’s failure to advise petitioner
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              prior to start of trial of his right to testify did not
              warrant reversal of the trial court’s judgment of
              conviction.
              B. Whether the Intermediate Court of Appeals determined in
              error that the district court’s Tachibana [ 1 ] colloquy was
              not defective and petitioner’s waiver of right to testify
              was valid.
              C. Whether the Intermediate Court of Appeals should have
              rejected the trial court’s finding that the testimony of the
              complaining witness was credible .2


We hold that the district court’s right-to-testify colloquy was

defective.      As a result, the district court did not obtain an on-

the-record waiver of the right to testify from Pomroy.               Pomroy

has thus proven a constitutional violation of his right to

testify, and under the circumstances of this case, such violation

cannot be considered harmless beyond a reasonable doubt.               We

further hold that the prohibition against double jeopardy does

not preclude a retrial in this case, as substantial evidence

supported Pomroy’s conviction.




1
       Referring to State v. Tachibana, 79 Hawai#i 226, 236, 900 P.2d 1293,
1303 (1995), which held, “[I]n order to protect the right to testify under the
Hawai’i Constitution, trial courts must advise criminal defendants of their
right to testify and must obtain an on-the-record waiver of that right in
every case in which the defendant does not testify.” (Footnotes omitted).
This court stated that “the ideal time to conduct the colloquy is immediately
prior to the close of the defendant’s case.” 79 Hawai#i at 237, 900 P.2d at
1304.

2
       Although not specifically raised as a question, Pomroy’s certiorari
application also asserts that the Intermediate Court of Appeals erred in
concluding there was substantial evidence to support his conviction.
Therefore, we address this issue on certiorari. Based on our decision to
vacate the conviction and remand for a new trial, however, we need not and do
not address Question C.

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II.     Background

        A.    Trial

        Pomroy was charged by Complaint with “intentionally,

knowingly or recklessly caus[ing] bodily injury to another

person, CLARK LUKENS, thereby committing the offense of Assault

in the Third Degree, in violation of Section 707-712(1)(a),

Hawai#i Revised Statutes, as amended.”3              He waived his right to a

trial by jury.

        At the bench trial,4 the district court did not conduct a

Tachibana colloquy with Pomroy prior to the start of trial.              The

State called as its first witness Clark Lukens, the complaining

witness.        Lukens testified that he has required the use of

crutches since 1987 due to hip dysplasia.              Lukens testified that

Pomroy was a fellow tenant at the Hale Moana Apartment Complex in

Hilo.        As to the assault in question, Lukens testified that while

he was in the backyard with a landscaper and a board member of

the apartment complex, Pomroy approached “screaming,” in an

“extremely aggravated and aggressive” manner.              Pomroy bumped his



3
       Hawai#i Revised Statutes (“HRS”) 707-712(1)(a) (1993) provides, “A
person commits the offense of assault in the third degree if the person . . .
[i]ntentionally, knowingly, or recklessly causes bodily injury to another
person. . . .” HRS § 707-700 (1993) defines “bodily injury” as “physical
pain, illness, or any impairment of physical condition.”

4
         The Honorable Barbara T. Takase presided.

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chest against Lukens and accused Lukens of attempting to have

Pomroy evicted from the apartment complex.

     The interaction lasted five minutes, then Pomroy left, so

Lukens decided to enter the elevator to return to his (Lukens’)

apartment.   Lukens testified that after he entered the empty

elevator, Pomroy suddenly appeared and forced himself into the

elevator, and the door closed behind him, leaving Lukens alone in

the elevator with Pomroy.    During the entire ride to the seventh

floor, Pomroy, who had pushed Lukens into the corner of the

elevator, used his forearms and elbows to strike Lukens about 50

or 60 times in the throat, neck, and shoulders.      Lukens recalled

Pomroy saying “he [Pomroy] was gonna kick [Lukens’] ass, he was

gonna beat the F’n shit outta [Lukens], he was gonna teach

[Lukens] manners.”   When the elevator doors opened on the seventh

floor, Pomroy “ceased the attack” and “immediately sprung back

off” of Lukens.   Lukens’ wife was waiting for him at the elevator

landing on the seventh floor and helped Lukens out.       Lukens

testified that he felt pain, which he described as a seven or

eight on a ten-point scale, because Pomroy was a “big guy” who

was hitting “with all his might,” “trying to hurt [Lukens],” and

hitting “[a]s hard as he could.”       Lukens also testified he had no

injuries from that day.


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     The State then called Lukens’ wife, Paulette Berbelis, who

testified that she had been waiting outside the elevator on the

seventh floor for Lukens after the landscaper had called her to

ask if Lukens was okay.    Berbelis heard Pomroy screaming and

yelling inside the elevator.    As the elevator doors opened,

Berbelis saw Pomroy “jump away” from Lukens, while Lukens was

“pushed against” against the elevator wall.      Berbelis observed

Pomroy to be “hepped up” or “aggressive,” while Lukens appeared

“[s]haken up quite a bit.”    Lukens complained to her of pain in

his chest and neck.

     The State then called landscaper Robert Robbins, who

testified that Pomroy had been upset and yelling in the backyard

about people cutting down trees.       Lukens then approached Robbins

and Pomroy and told Pomroy to leave Robbins alone.       At that

point, Pomroy and Lukens continued their conversation, with

Pomroy still angry, and Lukens keeping his distance.       Robbins

then saw both head toward the foyer (where the elevator is

located) and heard “excessive banging” coming from the elevator

shaft, which he thought was “[n]othing human.      Just mechanical.”

     The State then called Hawai#i County Police Department

police officer Jeremy Kubojiri, who testified that he interviewed

Lukens after the altercation.    Kubojiri said Lukens was “shaken


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up” and complaining of pain in his chest.          Kubojiri observed no

“visible injuries” to Lukens, and Lukens refused medical

assistance.

     The State then called Hawai#i County Police Department

police officer Malia Bohol, who testified that she interviewed

Pomroy after the altercation.       Bohol testified that Pomroy told

her that both he and Lukens approached Robbins, who was cutting

down a tree with a chainsaw and leaving the debris in a pond.

Lukens was yelling at an unknown person to turn off the chainsaw.

Pomroy rode with Lukens in the elevator but did not “put his

hands on Mr. Lukens in any way.”          Rather, Lukens told Pomroy,

“Make your move.”     Pomroy exited the elevator and assisted a

woman who had gotten locked out of her apartment.

     The State then rested its case.          Immediately thereafter,

defense counsel stated, “We’ll rest too, Your Honor.”            At that

point, the district court and Pomroy engaged in the following

colloquy:

            THE COURT: Alright. Mr. Pomroy, before your attorney
            [rests the defense’s case], let me advise you. You have the
            right to testify on your own behalf. That decision is yours
            and yours alone. If you choose to testify you will be
            subject to cross-examination by the state. If you choose
            not to testify, I cannot hold that against you. But the
            only evidence I will have is what the State has presented,
            unless you have other witnesses; you understand that?
            THE DEFENDANT: Yes, ma’am.
            THE COURT: Alright. Is it your choice to testify or not?




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          THE DEFENDANT: I think I have already said what has
          happened, yeah. I don’t have to testify.
          THE COURT: Alright. I don’t know what you mean by “I’ve
          already said” because --
          THE DEFENDANT: In my report, when I made it two years ago,
          what had happened. That’s pretty much what it is.
          THE COURT: So you’re talking about what the officer
          testified to? Because you understand the police report is
          not in evidence. You understand that?
          THE DEFENDANT: I don’t understand what you’re saying.
          (Discussion between Counsel and Defendant)
          THE COURT: Alright.
          THE DEFENDANT: I don’t need any testimony I guess.
          THE COURT: Your choice not to testify?
          THE DEFENDANT: Yes, ma’am.

The defense then rested.

     The district court heard closing arguments then specifically

found Lukens’ testimony to be credible and corroborated by

Berbelis’ testimony.    The district court stated there was no

other credible evidence contradicting Lukens’ and Berbelis’

testimony.   The district court did find bodily injury and stated

it was not necessary for the State to show Lukens suffered from

bruises or redness or that he required medical attention.          The

district court therefore found that the State had proven its case

beyond a reasonable doubt.

     Pomroy filed a Motion for New Trial.       He argued that the

district court failed to advise him of his right to testify

before the start of trial.     He also argued that, although the

district court advised him of his right to testify immediately

prior to the close of the defense’s case, it did not question him


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enough to ensure that he adequately understood the decision not

to testify.

     The State opposed the Motion for New Trial, arguing that the

trial transcript “indicate[d Pomroy] was informed of his right to

testify or not to testify,” Pomroy had a discussion with counsel

after being informed of his rights, and Pomroy then elected not

to testify after being informed of his rights.

     The district court denied the Motion for New Trial and filed

its Judgment of Conviction and Sentence, which found Pomroy

guilty as charged and sentenced him to a year of probation,

imprisonment of 180 days (with 90 days stayed), a $55 Crime

Victim Compensation Fund fine, and a $75 Probation Fee.       Pomroy

timely appealed.

     B.   Appeal

     Before the ICA, Pomroy first argued that his conviction was

supported by insufficient evidence.     He argued that Lukens’

testimony of being struck repeatedly about the neck, chest, and

shoulders was contradicted by other testimony that there was no

evidence of injury and no request for medical attention.        Pomroy

argued that Lukens was, therefore, not credible.

     Pomroy next argued (1) that the district court did not

inform him of his right to testify prior to trial; and (2) at the


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close of the State’s case, when the district court informed

Pomroy of his right to testify, the district court “failed to

ensure that Mr. Pomroy adequately understood his right to testify

and the possible consequences of his decision not to testify,”

given the “tentative nature of Mr. Pomroy’s responses and his

continuing apparent mistaken belief that the Court had received

sufficient evidence from his side. . . .”        Pomroy argued that if

the State was unable to show that the inadequate Tachibana

colloquy was harmless beyond a reasonable doubt, then Pomroy’s

conviction must be vacated.

          2.   The State’s Answering Brief

     In its Answering Brief, the State responded only to Pomroy’s

second point of error.    The State conceded that the district

court did not conduct a prior-to-trial Tachibana colloquy with

Pomroy, which is contrary to the mandate in State v. Lewis, 94

Hawai#i 292, 297, 12 P.3d 1233, 1238 (2000):

          [T]rial courts ‘prior to the start of trial, [shall] (1)
          inform the defendant of his or her personal right to testify
          or not to testify and (2) alert the defendant that, if he or
          she has not testified by the end of the trial, the court
          will briefly question him or her to ensure that the decision
          not to testify is the defendant’s own decision.

(Footnote omitted).    The State further conceded that it could not

“make a good faith argument that the error committed by the trial

court . . . was harmless beyond a reasonable doubt.”          To the


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State, under the totality of the circumstances existing at trial,

where the only evidence before the district court had come from

the State, had the district court complied with Lewis and advised

Pomroy of his right to testify prior to trial, Pomroy might have

testified and might have presented evidence establishing

reasonable doubt that he committed assault.           The State concluded

with a request that the ICA reverse Pomroy’s conviction.              Pomroy

did not file a Reply Brief.

              3.   The ICA’s Memorandum Opinion

        The ICA5 rejected Pomroy’s points of error and affirmed his

conviction.        State v. Pomroy, No. 29688 (App. Dec. 26, 2012)(mem.

op.) at 9, 11, 12, 14.        As to Pomroy’s first point of error (that

insufficient evidence supported his conviction), the ICA held (1)

that it was within the district court’s province to determine

that Lukens’ testimony was credible; and (2) that the evidence,

when viewed in the light most favorable to the State, showed that

Lukens suffered physical pain, which constitutes “bodily injury”

for the purpose of proving assault in the third degree in

violation of HRS § 707-712(1)(a); evidence of bruising, redness,

or other marks on Lukens’ body was not required.            Pomroy, mem.

op. at 11-12.

5
       The ICA panel consisted of Chief Judge Craig H. Nakamura and Associate
Judges Daniel R. Foley and Alexa D. M. Fujise.

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       As to the first part of Pomroy’s second point of error (that

the district court failed to advise Pomroy of his right to

testify prior to trial), the ICA first set aside the State’s

concession of error as “not well taken.”      Pomroy, mem. op. at 10

n.5.    The ICA reasoned, “The State applied a harmless beyond a

reasonable doubt standard of review [to the Lewis error], whereas

the correct standard requires Pomroy to demonstrate actual

prejudice.”    Id.   Although the ICA recognized that the district

court failed to engage Pomroy in the prior-to-trial Tachibana

colloquy, it held that Pomroy had not shown actual prejudice.

Pomroy, mem. op. at 10.

       As to the second part of Pomroy’s second point of error

(that the district court failed to ensure that Pomroy’s waiver of

his right to testify was intelligent, knowing and voluntary

during the colloquy conducted immediately prior to the close of

Pomroy’s case), the ICA held that (1) the district court fully

advised Pomroy of his right to testify, and (2) “[a]ny confusion

held by Pomroy over the evidentiary difference between the

officer’s trial testimony regarding Pomroy’s statement and the

police report was for Pomroy’s counsel to explain, and the record

indicates that Pomroy’s counsel did discuss this issue with

Pomroy.”    Pomroy, mem. op at 9, 10.


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III.    Discussion

       On certiorari, Pomroy argues that the ICA erred (1) in

determining that the district court’s failure to advise him of

his right to testify prior to trial did not warrant reversal of

the district court’s judgment of conviction; and (2) in

determining that the district court’s Tachibana colloquy, given

at the close of the State’s case, was not defective and that

Pomroy’s waiver of his right to testify was valid.       Pomroy’s

arguments are persuasive.

       A.   Advisement of, and Waiver of, The Right to Testify

             1.   State v. Tachibana

       In Tachibana, 79 Hawai#i 226, 900 P.2d 1293, we examined the

defendant’s right to testify.      We first noted that the right to

testify is guaranteed by the United States Constitution’s Fifth

Amendment guarantee against compelled testimony, Sixth Amendment

guarantee of compulsory process, and Fourteenth Amendment

guarantee of due process; the Hawai#i Constitution’s parallel

guarantees under Article I, Sections 10, 14, and 5, respectively;

and HRS § 801-2 (1993)’s statutory protection of the right to

testify, which states, “In the trial of any person on the charge

of any offense, he shall have a right . . . to be heard in his

defense.”     79 Hawai#i at 231-32, 900 P.2d at 1298-99 (citing

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State v. Silva, 78 Hawai#i 115, 122-23, 890 P.2d 702, 709-10

(App. 1995)).     The decision to testify ultimately belongs to the

defendant.    See 79 Hawai#i at 232, 900 P.2d at 1299.

     We held, “[I]n order to protect the right to testify under

the Hawai#i Constitution, trial courts must advise criminal

defendants of their right to testify and must obtain an on-the-

record waiver of that right in every case in which the defendant

does not testify.”      79 Hawai#i at 236, 900 P.2d at 1303 (footnote

omitted).    In a footnote, we stated the purpose and substance of

the right-to-testify colloquy as follows:

            In conducting the colloquy, the trial court must be careful
            not to influence the defendant’s decision whether or not to
            testify and should limit the colloquy to advising the
            defendant
                        that he [or she] has a right to testify,
                        that if he [or she] wants to testify that
                        no one can prevent him [or her] from doing
                        so, [and] that if he [or she] testifies
                        the prosecution will be allowed to cross-
                        examine him [or her]. In connection with
                        the privilege against self-incrimination,
                        the defendant should also be advised that
                        he [or she] has a right not to testify and
                        that if he [or she] does not testify then
                        the jury can be instructed about that
                        right.


79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7 (citations omitted).

     As to when the colloquy must be conducted, we noted that

“the ideal time to conduct the colloquy is immediately prior to

the close of the defendant’s case.”         79 Hawai#i at 237, 900 P.2d


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at 1304.   We also encouraged courts to give the colloquy prior to

the start of trial:

           [A]lthough the ultimate colloquy should be conducted after
           all evidence other than the defendant’s testimony has been
           received, it would behoove the trial court, prior to the
           start of trial, to (1) inform the defendant of his or her
           personal right to testify or not to testify and (2) alert
           the defendant that, if he or she has not testified by the
           end of the trial, the court will briefly question him or her
           to ensure that the decision not to testify is the
           defendant’s own decision. Such an early warning would
           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.


79 Hawai#i at 237 n.9, 900 P.2d at 1304 n.9.

           2.   State v. Lewis

     In Lewis, 94 Hawai#i 292, 12 P.3d 1233, we revisited

footnote 9 from Tachibana, which recommended a prior-to-trial

colloquy on the right to testify.        The defendant in that case

(“Lewis”) did testify in his defense.        94 Hawai#i at 294, 12 P.3d

at 1235.   The trial court, however, had not engaged him in a

colloquy on his right to testify, or to not testify, prior to

trial.   Id.    We held that a Tachibana colloquy was not required

when a defendant has decided to testify, and that no prior-to-

trial Tachibana colloquy was therefore required in Lewis’s case.

Prospectively, however, we mandated that “trial courts ‘prior to

the start of trial (1) inform the defendant of his or her

personal right to testify or not to testify and (2) alert the


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defendant that, if he or she has not testified by the end of the

trial, the court will briefly question him or her to ensure that

the decision not to testify is the defendant’s own decision.’”

94 Hawai#i at 297, 12 P.3d at 1238 (footnote omitted).

     We then noted, “Because we view this prior-to-trial

advisement as incidental to the ‘ultimate colloquy,’ any claim of

prejudice resulting from the failure of the trial court to give

it must meet the same ‘actual[] prejudice[]’ standard applied to

violations of the colloquy requirement.”      Id. (citing Tachibana,

79 Hawai#i at 237, 900 P.2d at 1304).     See also State v. Han, 130

Hawai#i 83, 89, 306 P.3d 128, 134 (2013)(“On appeal, the pre-

trial advisement is reviewed for ‘actual prejudice.’”)(citation

omitted).

     B.   Application of Tachibana and Lewis to Pomroy’s Appeal

            1.   The Omission of the Prior-to-Trial Tachibana
                 Colloquy

     On certiorari, Pomroy argues that the ICA erred in finding

that he had not shown actual prejudice from the omission of the

prior-to-trial Tachibana colloquy.     Pomroy argues that he was

actually prejudiced “by loss of reflection and measured

consideration of his option to testify or not during the

presentation of the State’s case.”     Further, he argues that


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actual prejudice is evident in the district court’s observation

that “[n]o other credible evidence” existed to rebut the State’s

witnesses’ testimony; had Pomroy testified, he could have

presented credible, conflicting evidence.

     In this case, however, we need not determine whether the

absence of the prior-to-trial Tachibana colloquy actually

prejudiced Pomroy, because we hold that the ultimate Tachibana

colloquy was defective, and, therefore, the record does not

reflect that Pomroy intelligently, knowingly and voluntarily

waived the right to testify.    See Han, 130 Hawai#i at 89, 306

P.3d at 134 (“In holding that the failure to properly conduct the

Tachibana colloquy was harmful error, infra, the issue of whether

Petitioner could demonstrate ‘actual prejudice’ with respect to

the pre-trial colloquy need not be addressed here.”).

           2.   The Ultimate Tachibana Colloquy

     The ICA erred in concluding (1) the district court’s

Tachibana advisement was not defective, and (2) that Pomroy had

intelligently, knowingly, and voluntarily waived his right to

testify.   The district court’s Tachibana advisement was defective

because it did not fully advise Pomroy of his rights and because

it was not a true exchange.




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     To recapitulate, the district court began its colloquy as

follows:

            THE COURT: Alright. Mr. Pomroy, before your attorney
            [rests the defense’s case], let me advise you. You have the
            right to testify on your own behalf. That decision is yours
            and yours alone. If you choose to testify you will be
            subject to cross-examination by the state. If you choose
            not to testify, I cannot hold that against you. But the
            only evidence I will have is what the State has presented,
            unless you have other witnesses; you understand that?
            THE DEFENDANT: Yes, ma’am.

The district court incompletely followed

Tachibana’s directive that trial courts advise defendants of the

following:

            That he [or she] has a right to testify, that if he [or she]
            wants to testify that no one can prevent him [or her] from
            doing so, [and] that if he [or she] testifies the
            prosecution will be allowed to cross-examine him [or her].
            In connection with the privilege against self-incrimination,
            the defendant should also be advised that he [or she] has a
            right not to testify and that if he [or she] does not
            testify then the jury can be instructed about that right.


79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7 (citations omitted).

Although the district court advised Pomroy that he had the right

to testify on his behalf and that if he chose to testify, he

would be subject to cross-examination by the State, the district

court did not advise Pomroy that he had the right not to testify

and that no one can prevent him from testifying.

     Further, the district court did not engage Pomroy in a true

colloquy.    In Han, we noted that a colloquy is an “oral exchange”

in which the “judge ascertains the defendant’s understanding of

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the proceedings and of the defendant’s rights.”         130 Hawai#i at

135, 306 P.3d at 90 (citing Black’s Law Dictionary 300 (9th ed.

2009)(emphasis omitted).    The failure to engage in a true

exchange to ascertain the defendant’s understanding of the

individual rights comprising the Tachibana colloquy results in

the failure to “ensure that [the defendant] understood his rights

[and] amounts to a failure to obtain the on-the-record waiver

required by Tachibana.”    130 Hawai#i at 136, 306 P.3d at 91.          In

this case, the district court recited a litany of rights.          It

then asked Pomroy if he “understood that,” and it is unclear

which right “that” referenced.

     Moreover, Pomroy’s lack of understanding became increasingly

evident as the colloquy continued:

          THE COURT: Alright. Is it your choice to testify or not?
          THE DEFENDANT: I think I have already said what has
          happened, yeah. I don’t have to testify.
          THE COURT: Alright. I don’t know what you mean by “I’ve
          already said” because --
          THE DEFENDANT: In my report, when I made it two years ago,
          what had happened. That’s pretty much what it is.
          THE COURT: So you’re talking about what the officer
          testified to? Because you understand the police report is
          not in evidence. You understand that?
          THE DEFENDANT: I don’t understand what you’re saying.
          (Discussion between Counsel and Defendant)
          THE COURT: Alright.
          THE DEFENDANT: I don’t need any testimony I guess.
          THE COURT: Your choice not to testify?
          THE DEFENDANT: Yes, ma’am.

From this exchange, it appeared that Pomroy mistakenly believed

that whatever he had said in a police report was before the

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court.      The district court explained that the police report was

not in evidence and that Pomroy would instead have to rely on

Bohol’s testimony to get his side of the story into evidence.6

Even after this explanation, the district court did not ascertain

that Pomroy understood what it had told him, or, more

importantly, understood his right to testify (or not testify).

On certiorari, Pomroy argues he repeatedly expressed doubt and

uncertainty over what the district court was telling him.             From

the record before us, we agree.7
6
        It may have been preferable for the district court not to comment on
the state of the evidence and to, instead, follow the model colloquy set forth
in Tachibana. 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. Doing so reduces
the risk that the district court may inadvertently “influence the defendant’s
decision whether or not to testify.” Id. The defendant’s counsel is in a
better position to advise the defendant to exercise his or her right to
testify based on the state of the evidence.

7
       The Majority and Dissent differ chiefly on how to interpret the
colloquy on the record. The Dissent disagrees with our view of the record
that Pomroy was confused during the colloquy. Dissent at 4. The Dissent
states, “The district court could observe Pomroy’s demeanor and assess the
inflection in his voice, which we cannot do from a cold record, and there is
no reason to assume that the court would have ignored uncertainty on Pomroy’s
part if that is how he presented to the court.” Dissent at 4. Respectfully,
the Dissent’s statement suggests that the purpose of the colloquy is for the
trial court to make a determination, almost akin to a credibility
determination with respect to viewing witnesses firsthand, that the defendant
understood his or her rights, and that the appellate courts should accept such
a determination. See, e.g., Bhakta v. County of Maui, 109 Hawai#i 198, 217,
124 P.3d 943, 962 (2005)(“This court must, therefore, ‘generally accept the
determination of the court which had the opportunity to observe the demeanor
of the witnesses. . . .”)(citation omitted). However, in Han, we noted that
one of the reasons for adopting the Tachibana requirement was so “a trial
judge would establish a record that would effectively settle the right-to-
testify issues in the case. . . .” Han, 130 Hawai#i at 136, 306 P.3d 91
(emphasis added). Appellate review of the sufficiency of the Tachibana
colloquy is necessarily based on a cold record. We are tasked with
scrutinizing the language used by both the court and the defendant to assess

                                                            (continued. . .)

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        The district court “simply advised Petitioner of his rights,

without any ‘discussion,’ ‘exchange’ or ascertainment that

Petitioner understood his rights.”         Han, 130 Hawai#i at 135, 306

P.3d at 90.      Therefore, the district court “did not adequately

establish, on-the-record, that Petitioner understood what rights

he was waiving” or that he “had in fact understood the rights

listed by the court. . . .”        130 Hawai#i at 136, 306 P.3d at 91.

“The failure to ensure that Petitioner understood his rights

amounts to a failure to obtain the on-the-record waiver required

by Tachibana.”       Id.   In sum, Pomroy’s constitutional right to

testify was violated.

        “Once a violation of the constitutional right to testify is

established, the conviction must be vacated unless the State can

prove that the violation was harmless beyond a reasonable doubt.”

Tachibana, 79 Hawai#i at 240, 900 P.2d at 1307 (citations

omitted).      It cannot be said that such violation was harmless

beyond a reasonable doubt, because it is unknowable from this

record whether Pomroy’s testimony, had he given it, could have

established reasonable doubt that he committed assault in the

7
 (continued . . .)
whether a defendant knowingly, intelligently, and voluntarily waived his or
her right to testify. That task cannot be accomplished were we to defer to
the trial court’s apparent assessment of the defendant’s understanding
whenever the express language on the record leaves us with any doubt about the
validity of the colloquy and/or the defendant’s waiver.

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third degree.    “[I]t is inherently difficult, if not impossible,

to divine what effect a violation of the defendant’s

constitutional right to testify had on the outcome of any

particular case.    The record in this case offers no clue to what

[the defendant] would have said, under oath, on the witness

stand.”    State v. Hoang, 94 Hawai#i 271, 279, 12 P.3d 371, 379

(2000) (citation omitted).    See also Tachibana, 79 Hawai#i at

240, 900 P.2d at 1307 (“From our review of the record, ‘it is

impossible to conclude, beyond a reasonable doubt, that

[Tachibana]’s testimony could not have created a reasonable doubt

in the mind of the factfinder and, hence, that the [violation of

Tachibana’s right to testify] could not have contributed to the

conviction.”) (citing Silva, 78 Hawai#i at 126, 890 P.2d at 713).

     Pomroy has shown a violation of the constitutional right to

testify that cannot be considered harmless beyond a reasonable

doubt.    Therefore, his conviction cannot stand.

     B.     Sufficiency of the Evidence and Credibility of the
            Complaining Witness

     Next, we address whether this court must reverse Pomroy’s

conviction due to double jeopardy based on insufficiency of the

evidence, or vacate and remand his case for a new trial.

Principles of double jeopardy do not preclude a retrial in this


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case because substantial evidence supported Pomroy’s conviction.

See State v. Kalaola, 124 Hawai#i 43, 237 P.3d 1109 (2010)(“[T]he

double jeopardy clause does not bar retrial on the means of

establishing guilt for which there was sufficient evidence at

trial” because “error in this case was trial error.”)(citing

State v. Jones, 96 Hawai#i 161, 184 n.30, 29 P.3d 351, 374 n.30

(2001)).

     On certiorari, Pomroy argues that the ICA erred in

concluding there was substantial evidence to support the district

court’s conclusion that Pomroy assaulted Lukens.       While Pomroy

agrees that “testimony of feeling pain alone could conceivably

support a conviction of Assault in the Third Degree,” he

nonetheless argues that “[c]ommon sense tells us that if [Lukens]

had testified truthfully about the mechanism of his alleged

injuries, physical evidence of those injuries would have been

necessarily visible. . . .”    Pomroy argues that the lack of

physical corroborative evidence indicates the assault “could not

have occurred,” regardless of whether the evidence (or absence of

evidence) is viewed in the light most favorable to the State.         To

Pomroy, Lukens’ testimony “defied physics and human biology.”

     We disagree.   To convict Pomroy for the offense of assault

in the third degree in violation of HRS § 707-712(1)(a), the

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State needed to prove beyond a reasonable doubt that Pomroy

intentionally, knowingly, or recklessly caused bodily injury to

Lukens; bodily injury is defined in HRS § 707-700 to include

“physical pain.”    This court views the evidence adduced at trial

“in the strongest light for the prosecution. . . .”       State v.

Matavale, 115 Hawai i 149, 157, 166 P.3d 322, 330 (2007)(citation

omitted).    The test on appeal is whether substantial evidence

supports the trier of fact’s conclusion.      115 Hawai#i at 157-58,

166 P.3d at 330-31 (citation omitted).     “‘Substantial evidence’

as to every material element of the offense charged is credible

evidence which is of sufficient quality and probative value to

enable [a person] of reasonable caution to support a conclusion.”

115 Hawai#i at 158, 166 P.3d at 331 (citation omitted).

     At trial, Lukens testified that he felt physical pain that

measured a seven or eight on a ten-point scale.      Berbelis

testified that Lukens complained to her of feeling pain.

Kubojiri also testified that Lukens complained to him of physical

pain.   Pomroy argues that Lukens could not have been telling the

truth if no physical injuries were visible after the assault he

describes.    This court, however, has stated, “Indeed, even if it

could be said in a bench trial that the conviction is against the

weight of the evidence, as long as there is substantial evidence

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to support the requisite findings for conviction, the trial court

will be affirmed.”    Matavale, 115 Hawai#i at 158, 166 P.3d at 331

(citation omitted).    Further, the district court found Lukens’

(and Berbelis’) testimony to be credible.      “The question of

credibility and the weight to be given the evidence is for the

trier of fact to determine and is not disturbed on appeal.”

State v. Ewing, 81 Hawai#i 156, 165, 914 P.2d 549, 558 (App.

1996)(citation omitted).    It is well-settled that an appellate

court will not pass upon issues dependent upon the credibility of

witnesses and the weight of the evidence; this is the province of

the trier of fact.”    Therefore, substantial evidence supports

Pomroy’s conviction, and the prohibition against double jeopardy

does not preclude a remand of this case to the district court for

a new trial.

V.   Conclusion

     We hold that the district court’s ultimate Tachibana

colloquy was defective because it incompletely advised Pomroy of

his right to testify and because it did not establish that Pomroy

understood his rights.    As a result, the district court did not

obtain an on-the-record waiver of the right to testify from

Pomroy.   Thus, Pomroy has demonstrated a constitutional violation

of his right to testify, which, under the circumstances of this

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case, cannot be considered harmless.     We also hold that

substantial evidence supports Pomroy’s conviction; consequently,

the prohibition against double jeopardy does not preclude

retrial.   We therefore vacate the ICA’s Judgment on Appeal,

vacate the district court’s Judgment of Conviction and Sentence,

and remand this case to the district court for a new trial.

Steven D. Strauss,              /s/ Simeon R. Acoba, Jr.
for petitioner
                                /s/ Sabrina S. McKenna
Sonja P. McCullen,
for respondent                  /s/ Richard W. Pollack




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