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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              10-APR-2019
                                                              09:21 AM


           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


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

                                    vs.

                       RINALDO J. TORRES, JR.,
                   Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 14-1-1376)

                             APRIL 10, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          Under our precedents, a defendant in a criminal case

relinquishes fundamental constitutional rights only when the

rights are knowingly, intelligently, and voluntarily waived.               To

protect against the wrongful deprivation of these important

rights, we require trial courts to conduct on-the-record

colloquies prior to accepting such waivers, thereby ensuring

that defendants understand the nature and consequences of their
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decisions and make their choices freely.         We now reaffirm that

the colloquy must be conducted so as to demonstrate that the

waiver is a product of the defendant’s free will, undertaken in

the absence of duress or other undue influence.

          Our precedents also firmly establish that a

defendant’s right to testify is of equal constitutional stature

to the defendant’s corresponding right to refrain from

testifying.   Despite our recognition of this symmetry, our

current procedures require that a trial court engage a defendant

in an on-the-record colloquy only when the defendant waives the

right to testify--and not when the defendant waives the

reciprocal right not to testify.

          We hold that, because the two constitutional rights

are of equal importance, they should be afforded equal levels of

protection.   Accordingly, trial courts must engage the defendant

in an on-the-record colloquy regarding the right to testify and

to not testify when either right is waived, effectively making

such a colloquy necessary in every trial.         Because we apply our

holding only prospectively, however, and the circumstances and

strength of the evidence in this case render any error on the

part of the trial court harmless beyond a reasonable doubt, we

affirm the defendant’s convictions.




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                 I. FACTS AND PROCEDURAL BACKGROUND

                               A. Pretrial

          On August 27, 2014, a grand jury of the Circuit Court

of the First Circuit (circuit court) indicted Rinaldo J. Torres,

Jr. on one count of robbery in the first degree in violation of

Hawaii Revised Statutes (HRS) § 708-840(1)(b)(i) and/or 708-

840(1)(b)(ii)1 and one count of terroristic threatening in the

first degree in violation of HRS § 707-716(1)(e).2             At his

arraignment, Torres entered pleas of not guilty.


     1
          HRS § 708-840(1)(b) (2014) provides the following:

          (1) A person commits the offense of robbery in the first
          degree if, in the course of committing theft or non-
          consensual taking of a motor vehicle:

          . . . .

                (b) The person is armed with a dangerous instrument
                or a simulated firearm and:

                      (i) The person uses force against the person of
                      anyone present with intent to overcome that
                      person’s physical resistance or physical power
                      of resistance; or

                      (ii) The person threatens the imminent use of
                      force against the person of anyone present with
                      intent to compel acquiescence to the taking of
                      or escaping with the property[.]
     2
          HRS § 707-716 (2014) provides in relevant part the following:

          (1) A person commits the offense of terroristic threatening
          in the first degree if the person commits terroristic
          threatening:

          . . . .

                (e) With the use of a dangerous instrument or a
                simulated firearm.




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          Five days before trial was scheduled to begin, Torres

submitted a Waiver of Indictment/Trial by Jury form to the

court.   The form stated “I, the above named defendant, charged

with violation of the indicated statute have been advised of my

rights,” and it contained a box for the waiver of the right to

an indictment and a box for the waiver of the right to a jury

trial.   Torres checked the box that said “I waive my right to

trial by jury and consent to a trial by the COURT without a

jury” and signed the bottom of the form.

          The trial began on March 23, 2015.3          Before opening

statements, the court indicated that defense counsel had

communicated Torres’s desire to waive his right to a jury trial.

The circuit court engaged in the following colloquy with Torres:

          THE COURT: Your lawyer has provided the Court with a waiver
          of trial by jury form. And it appears to have your
          signature. Is this your signature?

          THE DEFENDANT: Yes, sir.

          THE COURT: Did you go over this form with your lawyer
          before you signed it?

          THE DEFENDANT: Yes.

          THE COURT: And did you read and understand it before you
          signed it?

          THE DEFENDANT: I believe I did.   Yeah.

          THE COURT: Do you have any questions about this form?

          THE DEFENDANT: No.

          . . .

    3
          The Honorable Dexter D. Del Rosario presided.




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      THE COURT: Knowing the[] penalties [of robbery in the first
      degree and terroristic threatening in the first degree], do
      you still want to go by way of a bench trial? That is, a
      waiver of your right to a jury trial?

      THE DEFENDANT: Yes. I feel that you will be fair in
      weighing the evidence against me. Yes, Your Honor.

      THE COURT: Do you understand that you do have a right to a
      jury trial in this case?

      THE DEFENDANT: Yes, I do.   Thank you.

      THE COURT: And you understand that in a jury trial, you and
      your lawyer may participate in selecting twelve citizens
      who would serve as jurors in this case and decide whether
      you are guilty or not guilty of these crimes?

      THE DEFENDANT: Yes, sir.

      THE COURT: And you understand that you and your lawyer, or
      you through your lawyer, will be able to ask questions of
      the jurors to determine whether they can be fair and
      impartial? Do you understand that?

      THE DEFENDANT: Yes, sir.

      THE COURT: And you understand that your lawyer will be
      given three peremptory challenges. In other words, you and
      your lawyer will be permitted to excuse up to three jurors,
      without giving any reason for it. . . . Do you understand
      that?

      THE DEFENDANT: Yes.   I understand that.

      THE COURT: And you understand that before you can be found
      guilty of these crimes, all twelve jurors must agree that
      you are guilty. In other words, their verdict must be
      unanimous.

      THE DEFENDANT: Yes.   I understand that.

      THE COURT: And you understand that by giving up your right
      to a jury trial, you will be giving up all these rights?

      THE DEFENDANT: Yes, Your Honor.

      THE COURT: And you also understand that by giving up your
      right to a jury trial, I--that is the judge--will decide
      whether you are guilty or not guilty of these crimes?

      THE DEFENDANT: Yes, Your Honor.

      . . .




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            THE COURT: Do you have any questions about what I have told
            you?

            THE DEFENDANT: No. Still we still go through the same
            procedures as what my defense is and all that, right?

            THE COURT: Yes. We will have a trial.       The only difference
            is between a jury--

            THE DEFENDANT: We won’t have a jury.

            THE COURT: Yes.

            THE DEFENDANT: Okay.   I understand that.

            THE COURT: I will decide.

            THE DEFENDANT: Right, Your Honor.   Yes.     I requested that.

            . . .

            THE COURT: Do you want to waive your right to a jury trial?

            THE DEFENDANT: Yes, sir.

            THE COURT: Okay. The Court finds that Mr. Torres has
            voluntarily waived his right to a jury trial. Also have
            done so knowingly and intelligently.

                                   B. Trial

            Prior to trial commencing, the court did not advise

Torres of his right to testify or of his right not to testify.

                              1. State’s Case

            The State first called Satoshi Tokunaga who testified

that he was visiting from Japan in the summer of 2014 when the

incident with Torres occurred.          He explained that on July 18,

2014, while he was sitting on a bench in the Waikiki Shopping

Plaza, a stranger approached him with a gun and pointed it at

his head.    Tokunaga testified that the man hit him, he hit the

man back, and the man unsuccessfully attempted to take his bag.




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During the incident, Tokunaga said, they were hitting each other

and eventually the individual’s gun fell to the floor and both

of them tried to grab it.         Tokunaga stated that after the man

retrieved the gun, the man walked toward the nearby escalator,

security arrived, and the incident ended.4

             Tokunaga testified that after the incident, he spoke

with detectives and identified a person in a photo lineup that

“show[ed] the face of the suspect” and that looked like the

stranger who had approached him.            Tokunaga was also shown a

series of videos during his testimony that depicted the events

as he had described.        Tokunaga identified the person in the

videos as the person that approached him.            Tokunaga then made an

in-court identification of Torres as the person that assaulted

him.

             Elliot Aki, a security guard who responded to the

incident at the shopping plaza, testified that when he arrived

at the scene he saw one person “breaking away” from a group of

people and starting to leave.          He explained that he began

pursuing this person because “this individual might have been

the instigator” of the incident.            Aki said that the pursuit

continued to the escalator and when he came close, the person

“pivoted towards his right and pulled out this black object”

      4
            The magazine from a pellet gun was recovered from the scene, and
a photograph of it was entered into evidence.



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that “looked like a firearm” and pointed it at him.           Aki

explained that he then turned around and ran back up the

escalator and warned others in the area that the person on the

escalator had a gun.     Aki said that he observed the individual

continue down the escalator in a rushed manner with “his hands

in the air with the weapon.”      Aki was shown the security camera

video of the incident on the escalator, and he described the

events again as the video was being played.

                           2. Defense’s Case

          Prior to Torres being called as a witness, the court

did not engage in a colloquy with Torres regarding his right to

testify or his right not to testify.

          Torres testified that he was at the shopping plaza on

July 18, 2014, and that he approached Tokunaga and offered to

sell him marijuana.     Torres explained that when he opened the

bag of marijuana in front of Tokunaga’s face, Tokunaga grabbed

him and punched him in the eye.5         After he fell to the ground and

stood back up, an altercation ensued, Torres testified.             Torres

admitted that he had a pellet gun on the day of the incident but

said that it was in his bag and he never held it in the

confrontation with Tokunaga.      He testified that the pellet gun

likely fell out of his bag when he fell to the floor.            Torres

     5
          Tokunaga denied that Torres ever offered to sell him marijuana.




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also stated that the pellet gun’s magazine, which was found on

the ground at the scene, was never loaded in the pellet gun.

           When security arrived, Torres testified that he picked

up the pellet gun and his bag, and he walked away from the scene

still holding his pellet gun at his side as he approached the

escalator.    Torres testified that while he was on the escalator,

he tried to put the pellet gun in his pocket but it fell to the

ground as he turned to look behind him.          Torres acknowledged

that the person in the video “look[ed] like [him]” and that he

had the pellet gun out while going down the escalator, but he

denied that he pointed it at anyone.         After Torres’s testimony,

the defense rested.

                        3. Verdict and Sentencing

           The circuit court found Torres guilty of both counts.6

Torres was sentenced to 20 years imprisonment for the robbery

charge and 5 years imprisonment for the terroristic threatening

charge; the sentences were imposed concurrently with each other.

Torres filed a timely Notice of Appeal.

                           II. ICA PROCEEDINGS

           On appeal, Torres argued that the circuit court erred

by failing to advise him of his right not to testify before the

trial.   Torres contended that this alone was reversible error
      6
            The court found Tokunaga’s testimony credible and Torres’s
testimony not credible.




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and that there is no requirement that the defendant show he was

prejudiced by the lack of a colloquy.         But even if he was

required to show prejudice, Torres asserted, he was prejudiced

because the court’s error and his subsequent testimony

eliminated the defense of proof of identity.

           Torres also asserted that the circuit court

erroneously determined that his waiver of jury trial was

voluntary.    The colloquy was deficient, Torres maintained,

because the court did not ask him whether the decision to waive

a jury trial was his own decision or made under the influence or

duress of another person.       Torres concluded that the failure of

the circuit court to ask this specific question meant that the

court had no basis for its finding that the waiver was

voluntary.7

           In its decision, the Intermediate Court of Appeals

(ICA) held that when a trial court fails to provide a pretrial

advisement, the defendant must show that the lack of the

advisement caused actual prejudice.         The ICA reasoned that

Torres’s testimony was essential to his defense of self-defense,

and because he was the only witness that the defense called at

trial, Torres would have been required to testify even if he was

     7
            Torres also argued on appeal that the circuit court erred in
denying the defense’s motion for judgment of acquittal and that his trial
attorney provided ineffective assistance of counsel. Neither issue is raised
before this court, and thus they are not addressed.




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given a pretrial advisement.      Thus, the ICA concluded that

Torres was not prejudiced by the lack of a pretrial advisement.

          The ICA further held that the circuit court did not

err in finding that Torres’s waiver of his right to a jury trial

was voluntary.    The ICA explained that not only did Torres sign

a Waiver of Trial by Jury form, but Torres also participated in

an “extensive dialogue” with the circuit court in which he

stated “I feel that you will be fair in weighing the evidence

against me.”    The ICA concluded that under the totality of the

circumstances test, these facts demonstrated that Torres waived

his right to a jury trial knowingly and voluntarily.

Thereafter, Torres’s application for certiorari was accepted by

this court.

                        III. STANDARD OF REVIEW

          The validity of a defendant’s waiver of constitutional

rights in a criminal case is a question of law under the state

and federal constitutions.      See State v. Celestine, 142 Hawaii

165, 169, 415 P.3d 907, 911 (2018); State v. Sprattling, 99

Hawaii 312, 316, 55 P.3d 276, 280 (2002).         “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.”    Sprattling, 99 Hawaii at 316, 55 P.3d at 280




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(quoting State v. Hanapi, 89 Hawaii 177, 182, 970 P.2d 485, 490

(1998)).

                              IV. DISCUSSION

      A. Torres Voluntarily Waived the Right to a Jury Trial

            It is well established that Hawaii law recognizes the

right to a jury trial as a fundamental right.8           State v. Ibuos,

75 Haw. 118, 120, 857 P.2d 576, 577 (1993).           This right cannot

be relinquished absent a knowing, intelligent, and voluntary

waiver.    State v. Friedman, 93 Hawaii 63, 68, 996 P.2d 268, 273

(2000).    A waiver is knowing and intelligent when it is made

with “full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.”

Moran v. Burbine, 475 U.S. 412, 421 (1986).           A waiver is

voluntary when “it was the product of a free and deliberate

choice rather than intimidation, coercion, or deception.”              Id.

            When determining whether the waiver of a jury trial is

knowing, intelligent, and voluntary, we have “advised the trial

courts to conduct Duarte-Higareda’s suggested colloquy[.]”9


     8
            Defendants charged with a non-petty crime have a constitutional
right “to a speedy and public trial by an impartial jury of the district
wherein the crime shall have been committed[.]” Haw. Const. art. I, § 14;
see also State v. Wilson, 75 Haw. 68, 73, 856 P.2d 1240, 1243 (1993) (“[A]
defendant charged with a petty crime does not have a constitutional right to
a jury trial.”).
     9
            Notwithstanding this advisement, “we have rejected the argument
that such a colloquy is required in every case.” Gomez-Lobato, 130 Hawaii at
470, 312 P.3d at 902.



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State v. Gomez-Lobato, 130 Hawaii 465, 470, 312 P.3d 897, 902

(2013) (citing Friedman, 93 Hawaii at 69, 996 P.2d at 274).               In

a Duarte-Higareda colloquy, the trial court informs the

defendant “that (1) twelve members of the community compose a

jury, (2) the defendant may take part in jury selection, (3) a

jury verdict must be unanimous, and (4) the court alone decides

guilt or innocence if the defendant waives a jury trial.”

United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir.

1997).   Here, the circuit court engaged Torres in a colloquy

that essentially tracked the suggested Duarte-Higareda model.

However, the Duarte-Higareda colloquy does not address whether a

waiver is voluntary.

           Torres argues that the circuit court was required to

specifically ask him whether the waiver was his own decision or

“based upon duress or the influence of another person or other

factors that might cause him to waive his rights against his

will.”   Without conducting this inquiry, Torres asserts, the

circuit court had no basis for its finding that the jury waiver

was voluntary.

           This court has evaluated the voluntariness requirement

of a waiver of a jury trial on several occasions.           In Friedman,

the trial court asked the defendant during the colloquy, “Is

your decision to waive your right to jury trial something you

thought about and decided to do yourself voluntarily[?]” and the


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defendant answered, “Yes.”      93 Hawaii at 66, 996 P.2d at 271.

We found the defendant’s waiver to be voluntary because the

defendant “affirmatively indicated to the trial court that his

waiver of the right to a jury trial was voluntary and a result

of his own reflection.”     Id. at 70, 996 P.2d at 275.

          In State v. Baker, the defendant signed his initials

next to each paragraph on a form indicating that he intended to

waive a jury trial except the paragraph stating that his waiver

was not induced by promises or threats.         132 Hawaii 1, 3-4, 319

P.3d 1009, 1011-12 (2014).      The trial court then engaged the

defendant in a brief colloquy about the form.          Id. at 4, 319

P.3d at 1012.   On appeal, this court explained that even when

the defendant signs a written jury trial waiver form, the trial

court is still required to conduct an oral colloquy to establish

the validity of the waiver.      Id. at 6, 319 P.3d at 1014.        We

concluded that the defendant’s waiver of jury trial was not

voluntary because the defendant failed to initial next to the

paragraph on the waiver form that addressed voluntariness and

“none of the court’s questions were directed towards determining

the voluntariness of [the defendant’s] waiver.”          Id. at 7, 319

P.3d at 1015.

          This court also evaluated voluntariness in the context

of the right to testify in State v. Eduwensuyi, 141 Hawaii 328,




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409 P.3d 732 (2018).        In that case, the trial court conducted a

colloquy pursuant to Tachibana v. State, 79 Hawai‘i 226, 237, 900

P.2d 1293, 1304 (1995), informing the defendant of the right to

testify and the right not to testify.           Eduwensuyi, 141 Hawaii at

330-31, 409 P.3d at 734-35.         We held that the Tachibana colloquy

was deficient because the trial court failed to inform the

defendant that no one could prevent him from testifying.               Id. at

333-34, 409 P.3d at 737-38.         This advisement “is critical,”

explained the Eduwensuyi court, because it is “the only

Tachibana advisement that emphasizes that the waiver of the

right to testify must be voluntary[.]”            Id. at 334, 409 P.3d at

738.

             In State v. Solomon, this court evaluated

voluntariness in the context of a guilty plea.             107 Hawaii 117,

127, 111 P.3d 12, 22 (2005).         To determine voluntariness, we

stated that “the trial court should make an affirmative showing

by an on-the-record colloquy between the court and the

defendant” that it was the defendant’s decision to waive all of

the constitutional rights associated with a guilty plea.               Id.

(quoting State v. Vaitogi, 59 Haw. 52, 602, 585 P.2d 1259, 1265

(1978) (internal quotations omitted)).            Similarly, for a waiver

of the right to counsel to be “voluntarily and freely made,” we

have emphasized that the trial courts must ensure that “the

record is complete” so as to show that the defendant understands


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the risks and disadvantages of waiving counsel.          State v. Phua,

135 Hawaii 504, 512, 517, 353 P.3d 1046, 1054, 1059 (2015).

          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.

See Baker, 132 Hawaii at 7, 319 P.3d at 1015 (holding that there

was no basis for concluding the defendant’s waiver of jury trial

was voluntary when the court failed to include questions

regarding voluntariness in its colloquy).         Accordingly, a direct

question about voluntariness is required when the defendant’s

statements in the colloquy do not indicate that the decision to

waive a jury trial is the defendant’s own free and deliberate

choice.

          Thus, because the circuit court did not ask a direct

question addressing whether Torres’s waiver was voluntary, his

responses to the court must demonstrate that his waiver was his

own decision without influence of duress or coercion.            To

determine whether the waiver was voluntary, we evaluate “the

totality of facts and circumstances” of the record in this case.

Friedman, 93 Hawai‘i at 68-69, 996 P.2d at 273-74.


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            During the colloquy, Torres asked whether, during a

non-jury trial, “we still go through the same procedures as what

my defense is and all that, right?”          After the circuit court

explained that the difference between a jury trial and non-jury

trial is that the court decides guilt or innocence, Torres said,

“Right, Your Honor.       Yes.   I requested that,” indicating that it

was Torres’s own decision to waive a jury trial.             Additionally,

when asked if he still wanted to proceed with a bench trial

knowing the penalties that he was facing, Torres expressed his

sentiment that “I feel that you will be fair in weighing the

evidence against me.”       This also evidences that Torres perceived

a bench trial to be beneficial to him and that he made the

decision based on this conclusion.

            We conclude from the record, based on the totality of

the circumstances, that Torres voluntarily waived his right to a

jury trial.     See Friedman, 93 Hawaii at 68-69, 996 P.2d at 273-

74.   Torres’s responses “affirmatively indicated” that his

waiver of a jury trial was “a result of his own reflection” and

free will.     Id. at 70, 996 P.2d at 275.        Thus, the ICA did not

err in holding that Torres’s waiver of his right to a jury trial

was voluntary.




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                B. Lewis/Monteil Pretrial Advisement

    1. The Circuit Court Erred by Failing To Give a Pretrial
                           Advisement

           Torres also argues that the circuit court’s failure to

provide a pretrial advisement regarding his right not to testify

was error under State v. Lewis, 94 Hawaii 292, 12 P.3d 1233

(2000).

           In Lewis, this court held that trial courts must

inform defendants of the right not to testify in a pretrial

advisement.   Id. at 297, 12 P.3d at 1238.        There, the defendant

testified at trial but was given neither a pretrial advisement

that he had the right not to testify nor an advisory during

trial about this right before he testified.          Id. at 294, 12 P.3d

at 1235.   The Lewis court determined that there were positive

effects to be obtained “in all cases from a trial court

addressing a defendant” before trial about the defendant’s right

not to testify.    Id. at 297, 12 P.3d at 1238.        Thus, we mandated

that “trial courts ‘prior to the start of trial, [shall] []

inform the defendant of his or her personal right to testify or

not to testify[.]’”     Id. (first alteration in original) (quoting

Tachibana, 79 Hawai‘i at 237 n.9, 900 P.2d at 1304 n.9); see also

State v. Monteil, 134 Hawaii 361, 373, 341 P.3d 567, 579 (2014)

(affirming Lewis and adopting a prospective rule that trial

courts are required to inform defendants during the Lewis



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advisement that the decision not to testify cannot be used by

the fact finder to decide the case).

           Here, the circuit court clearly violated the mandate

of Lewis: Torres was not given a pretrial advisement regarding

his right not to testify nor was he advised that the exercise of

this right may not be used by the fact finder to decide the

case.   This was clear error by the circuit court.

           This error may have been remedied if the circuit court

had engaged in a colloquy with Torres before he testified and

informed him of his right not to testify.         See Monteil, 134

Hawaii at 372, 341 P.3d at 578.       But the circuit court also

failed to conduct a colloquy before Torres testified.            Thus, at

no point in the trial proceedings did the circuit court inform

Torres of his constitutional right not to testify.           Under Lewis,

Torres was entitled to a colloquy regarding the right not to

testify.   The circuit erred by not informing him of this right,

and the record does not demonstrate a knowing, intelligent, and

voluntary waiver.

     2. The Lack of a Pretrial Advisement Was Harmless Error

           When the violation of a constitutional right has been

established, “the conviction must be vacated unless the State

can prove that the violation was harmless beyond a reasonable




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doubt.”10   Tachibana, 79 Hawaii at 240, 900 P.2d at 1307.           Under

the harmless beyond a reasonable doubt standard, this court must

determine “whether there is a reasonable possibility that error

might have contributed to [the] conviction.”           State v.

Eduwensuyi, 141 Hawaii 328, 336, 409 P.3d 732, 740 (2018)

(quoting State v. Han, 130 Hawaii 83, 93, 306 P.3d 128, 138

(2013)).    If such reasonable possibility exists, then “the

judgment of conviction on which it may have been based must be

set aside.”    State v. Pulse, 83 Hawaii 229, 248, 925 P.2d 797,

816 (1996).    When assessing whether the error was harmless, “[a]

crucial if not determinative consideration . . . is the strength

of the prosecution’s case on the defendant’s guilt.”              State v.


     10
            The State argues that the ICA was correct in holding that a Lewis
violation must satisfy the “actual prejudice” standard. Lewis stated that,
“[b]ecause 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 [the pretrial advisement] must meet the same ‘actual[]
prejudice[]’ standard” espoused in Tachibana. 94 Hawaii at 297, 12 P.3d at
1238 (third and fourth alterations in original) (citation omitted).
Tachibana explained that a defendant must demonstrate actual prejudice when
“a defendant asserts his or her right to testify during a colloquy conducted
after the defense has rested and the trial is reopened to allow the defendant
to testify[.]” 79 Hawaii at 237, 900 P.2d at 1304. In such a situation, a
defendant’s constitutional right to testify is not violated. Rather, a court
must determine whether there was actual prejudice to the defendant as a
result of the delay in engaging in the colloquy. In contrast, Tachibana
stated that the failure of the court to give the ultimate colloquy is subject
to harmless error review. Id. at 240, 900 P.2d at 1307. We thus interpret
Lewis to establish that a court’s failure to properly deliver the pretrial
advisement is subject to the actual prejudice standard so long as the trial
court subsequently engages the defendant in the ultimate Tachibana colloquy.
When the ultimate colloquy is not given, however, a Lewis violation is
evaluated under the harmless beyond a reasonable doubt standard. Because
here Torres received neither the pretrial Lewis advisement nor the ultimate
Tachibana colloquy, we apply the harmless beyond a reasonable doubt standard.




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Tetu, 139 Hawaii 207, 226, 386 P.3d 844, 863 (2016) (quoting

State v. Fukusaku, 85 Hawaii 462, 482-83, 946 P.2d 32, 52-53

(1997)).

            Even had Torres been advised of his right not to

testify and chosen to exercise this right, the sum effect would

be that Torres’s trial testimony would not have been elicited.

If Torres’s trial testimony is thus not considered, the evidence

presented by the State with respect to the charges in this case

is nonetheless overwhelming.        To convict Torres of robbery, the

State was required to prove that Torres was armed with a

“dangerous instrument or a simulated firearm”11 and either used

force with the intent to overcome Tokunaga’s physical resistance

or threatened the use of imminent force with the intent to

compel Tokunaga’s acquiescence to the taking of his property.

HRS §§ 708-840(1)(b)(i), (ii).        Tokunaga’s testimony described

the events of his encounter with Torres in great detail.

Tokunaga testified that he was sitting alone on a bench in a

shopping mall and had a clear view of Torres approaching.

Tokunaga stated that he observed Torres wearing a blue shirt,

glasses, and “short pants.”       When Torres arrived at the bench,

Tokunaga testified, he saw Torres’s face and then saw Torres


     11
            HRS § 708-840(2) defines “simulated firearm” as any object that
“(a) Substantially resembles a firearm; (b) Can reasonably be perceived to be
a firearm; or (c) Is used or brandished as a firearm.”



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point a gun at the right side of his head.          Torres hit him in

the face and tried to take his bag, Tokunaga stated, at which

point he hit Torres back and a physical encounter ensued.

Tokunaga further testified that at the conclusion of the

encounter, he “saw his face” again as Torres stood up and walked

to the nearby escalator.

           Tokunaga’s testimony was verified by video evidence

that shows Torres approach Tokunaga with a pellet gun, punch

Tokunaga multiple times in the face while Tokunaga is still

sitting on the bench, and continue to punch Tokunaga while

Tokunaga was pinned on the ground.         Tokunaga unequivocally

identified Torres during trial as the person who attacked him.

The evidence also demonstrated that the pellet gun was a

“simulated firearm”; both Tokunaga and Aki testified that the

pellet gun resembled a real firearm, and it plainly appears to

be a real firearm in the video.        Further, a photograph of the

magazine from the pellet gun recovered from the scene was

entered into evidence.12

           As to the terroristic threatening charge, the State

needed to prove that Torres threatened Aki with a simulated

     12
            It is noted that if Torres had not testified, there would not
have been any evidence of self-defense, which was the defense asserted by
Torres at trial to the robbery charge. At the ICA, Torres contended that he
could have presented an identification defense. However, as described, the
State presented overwhelming evidence that Torres was the assailant appearing
in the video.




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firearm with the intent to terrorize him or in reckless

disregard of the risk of terrorizing him.          HRS §§ 707-715(1),

707-716(1)(e).13    Aki testified that during his pursuit of a man

leaving the scene of the incident, the man pointed “what looked

like a firearm” at him while the man was descending down the

escalator.    Aki’s testimony was substantiated by video evidence.

These videos document Torres’s movements from three different

camera angles from the time that Torres stood up at the end of

the encounter with Tokunaga to when he stepped off of the

escalator.    They show Torres carrying the pellet gun in his

right hand to the escalator, turning to face Aki while Torres

was on the escalator, and getting off the escalator with the gun

in his right hand pointed upwards.         And, as explained, the

testimony and video demonstrate that the pellet gun was a

“simulated firearm.”

           Because of the strength of the State’s evidence

adduced from Tokunaga and Aki and the corroborating videos, the

circuit court’s error in not advising Torres of his right not to

testify was harmless beyond a reasonable doubt.           See Tetu, 139

Hawaii at 226, 386 P.3d at 863 (video footage and witness

testimony presented “compelling” evidence of defendant’s guilt

     13
            HRS § 707-715 (2014) defines “terroristic threatening” as a
threat “by word or conduct, to cause bodily injury to another person or . . .
to commit a felony . . . [w]ith the intent to terrorize, or in reckless
disregard of the risk of terrorizing, another person[.]”




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and thus trial court error was harmless); State v. Rivera, 62

Haw. 120, 128, 612 P.2d 526, 532 (1980) (where there was a

“wealth of overwhelming and compelling evidence” tending to show

defendant’s guilty beyond a reasonable doubt the error was

harmless).    Because the error was harmless beyond a reasonable

doubt, we affirm Torres’s convictions.

   C. Prospectively, a Tachibana Colloquy Must Be Given in All
                              Trials

           A defendant in a criminal case “has an absolute right

not to testify.”     Salinas v. Texas, 570 U.S. 178, 184 (2013)

(internal quotation marks omitted) (quoting Turner v. United

States, 396 U.S. 398, 433 (1970) (Black, J., dissenting)).              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 10.14



     14
            The United States Constitution states that “[n]o person shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. It further provides that “[n]o state shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S.
                                                         (continued . . .)


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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) (quoting Harris v. New York, 401 U.S. 222, 230 (1971))

(internal quotations and alterations omitted).           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 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


(. . . continued)

Const. amend. XIV, § 1. Similarly, the Hawaii Constitution states that “[n]o
person shall . . . be compelled in any criminal case to be a witness against
oneself.” Haw. Const. art. I, § 10.




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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


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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.15       134 Hawai‘i at 370, 341 P.3d at 576.


     15
            In Monteil, the defendant testified after the trial court
informed him prior to trial that he had the “right to remain silent and the
right against self-incrimination” and that if he chose to testify that the
State would be able to cross-examine him and the court would consider his
testimony in deciding guilt or innocence. 134 Hawaii at 362-63, 365, 341
P.3d at 568-69, 571.



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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 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.


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           For example, in State v. Ibuos, the trial court

accepted a jury trial waiver from the defendant’s counsel.             75

Haw. 118, 118, 857 P.2d 576, 577 (1993).           Because the defendant

had a constitutional right to a jury trial, this court held that

the trial court erred when it failed to conduct an on-the-record

colloquy to ensure that the defendant waived the right to a jury

trial knowingly and voluntarily.         Id. at 120, 857 P.2d at 577.

Similarly, in State v. Murray, defense counsel stipulated that

the defendant had previously been convicted of abuse of a family

or household member, which was an element of the charged

offense.   116 Hawaii 3, 5, 169 P.3d 955, 957 (2007).          The

stipulation was accepted by the trial court without a colloquy

between the court and the defendant.         Id.    On appeal, this court

held that defendants in a criminal case have a constitutionally

and statutorily protected right to have each element of an

offense proven beyond a reasonable doubt.           Id. at 10, 169 P.3d

at 962.    Thus, the court in Murray held that trial courts must

engage in a colloquy with a defendant when the defendant seeks

to waive, via stipulation, the right to have the State prove

each element of an offense.      Id. at 12, 169 P.3d at 964.          And in

State v. Phua, the defendant appeared at a sentencing hearing

without an attorney and the trial court conducted a brief

colloquy informing the defendant of the right to counsel.             135

Hawaii 504, 508-09, 353 P.3d 1046, 1050-51 (2015).           This court


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held that because the right to counsel was guaranteed by the

United States Constitution and the Hawaii Constitution, a

defendant’s waiver of the right to counsel must be knowing,

intelligent, and voluntary, as insured by an adequate on-the-

record colloquy.     Id. at 512, 353 P.3d at 1054.

          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

(quoting Hurn v. State, 872 P.2d 189, 198 (Alaska App. 1994)

(“[T]he decision to testify or not rests with [the

defendant.]”)).

          Ibuos, Murray, Phua, and Tachibana all involved the

waiver of a fundamental constitutional right, which is also the

circumstance in this case.      Like other fundamental rights, the


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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, 16 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.16        The implication of such a

     16
          Relying on People v. Mozee, 723 P.2d 117, 124 (Colo. 1986) (en
                                                        (continued . . .)


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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.

(. . . continued)

banc), Lewis identified three rationales as to why such a colloquy was not
required. First, Lewis stated that a defendant has likely received one or
more Miranda advisements from law enforcement officials during the course of
the criminal investigation. 94 Hawaii at 296, 12 P.3d at 1237. However,
Miranda warnings are not given upon every arrest; they are only required
prior to conducting custodial interrogation of the defendant. See State v.
Kazanas, 138 Hawaii 23, 34-35, 375 P.3d 1261, 1272-73 (2016). And, even if
the Miranda warnings are administered, there is an extended lapse of time
between when they are given and when the defendant exercises or waives the
right not to testify at trial.

      Second, the Lewis court stated that a colloquy was not required when a
defendant testifies because the defense counsel likely would not allow the
defendant to take the stand without explaining to the defendant the right to
remain silent and the possible consequences of waiving the right. 94 Hawaii
at 296, 12 P.3d at 1237. This rationale has been effectively rejected by
subsequent cases of this court that have held that speculation about a
defense counsel’s privileged, off-the-record conversation with the defendant
cannot replace the trial court’s duty to conduct an on-the-record colloquy
with a defendant. See, e.g., State v. Eduwensuyi, 141 Hawaii 328, 336, 409
P.3d 732, 740 (2018)(“[A] court may not rely upon an off-the-record
discussion between counsel and a defendant to establish a valid waiver of a
constitutional right.”).

      Finally, Lewis reasoned that a colloquy was not required when a
defendant testifies because “any defendant who testifies would expect to be
cross-examined.” 94 Hawaii at 296, 12 P.3d at 1237. However, a defendant’s
knowledge that the State has the opportunity to cross-examine the defendant
is not equivalent to knowledge of the constitutional right not to testify,
nor to knowledge of the protections afforded to the defendant when waiving
the right to testify, such as the fact that the defendant’s silence cannot be
used as an inference of guilt in deciding the case. See Monteil, 134 Hawaii
at 372-73, 341 P.3d at 578-79.

      Accordingly, none of the reasons cited by the Lewis court provide a
persuasive basis to justify the disparate treatment that is accorded to the
defendant’s fundamental right to not testify at trial.




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                              V. CONCLUSION

          Based on the foregoing, the ICA’s judgment on appeal

is affirmed.


Emmanuel G. Guerrero                     /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Chad M. Kumagai
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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