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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-24489
                                                              20-JUL-2017
                                                              08:13 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                           STATE OF HAWAIʻI,
                          Plaintiff-Appellee,

                                    vs.

                            FRANK O. LOHER,
                         Defendant-Appellant.


                               SCAP-24489

       APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
              (ICA CASE NO. 24489; CR. NO. 99-1621)

                              JULY 20, 2017

  NAKAYAMA, ACTING C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
             CIRCUIT COURT JUDGE NACINO, IN PLACE OF
                    RECKTENWALD, C.J., RECUSED

                OPINION OF THE COURT BY POLLACK, J.

          This case arises from the nearly seventeen-year old

conviction of Frank O. Loher for attempted sexual assault in the

first degree.   At trial, Loher sought to present an alibi

defense based in large part on the testimony of his wife and his
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wife’s son.    Although the trial was anticipated to last between

five and six days, the State rested its case-in-chief in the

early afternoon on the first day of the evidentiary portion of

the trial.     When the circuit court informed defense counsel that

the defense’s witnesses would be required to testify that day,

counsel sought a continuance to secure the witnesses’ presence

so that they could testify first.        The circuit court denied the

requested continuance, and, over defense counsel’s objection,

the court ordered Loher to either take the stand at that time or

forfeit his right to testify entirely.         As a result, Loher took

the stand and testified before the other witnesses in the

defense’s case.

          Following his conviction and his unsuccessful appeal,

Loher sought relief in state and federal post-conviction

proceedings.    As a result of the post-conviction proceedings,

the Intermediate Court of Appeals’ June 19, 2003 judgment on

direct appeal was vacated so that Loher could raise a claim that

his constitutional rights were violated when the circuit court

ordered him to testify first or not at all.          Loher’s case

requires this court to consider whether the circuit court erred

based on principles set forth in the United States Supreme

Court’s decision in Brooks v. Tennessee, 406 U.S. 605 (1972),

the Hawaii Constitution, and Hawaii caselaw, and, if the court

erred, whether the error is subject to harmless error review.


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                  I.      FACTS AND PROCEDURAL HISTORY

                        A.     Circuit Court Trial

            On August 19, 1999, Loher was indicted by a grand jury

for attempted sexual assault in the first degree, in violation

of HRS § 705-500 (1993) and HRS § 707-730(1)(a) (1993) (count

one), and attempted kidnapping, in violation of HRS § 707-

720(1)(d) (1993) (count two).         Loher v. State, 118 Hawaii 522,

524, 193 P.3d 438, 440 (App. 2008), overruled on other grounds

by State v. Auld, 136 Hawaii 244, 361 P.3d 471 (2015).              The

State filed a “Memorandum of Pretrial” on December 9, 1999,

stating that the trial was expected to take five to six days.

Id.   On November 13, 2000, the State filed its “Witness and

Exhibit List” identifying fourteen witnesses for the State.                  Id.

            Loher and the State each filed motions in limine

relating to the evidence to be presented at trial.             Id.   During

the hearing on the parties’ motions, Loher stated that he

intended to present an alibi defense and establish that he was

not present during the attempted sexual assault and kidnapping.

Id.   Loher’s counsel represented to the court that Loher would

testify at trial, but at various times he also expressed the

possibility that Loher would choose not to take the stand.

Loher v. State, No. 29818, 2011 WL 2132828, at *1 (App. May 31,

2011) (mem.).




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           The evidentiary portion of the jury trial commenced at

9:30 a.m. on Tuesday, November 14, 2000.1         The State first called

Honolulu Police Department (HPD) Officer Oryn Baum.           Officer

Baum testified that on July 29, 1999, at approximately 3:43

a.m., she was dispatched to an industrial area at 2722 Kakoi

Street.    Once she arrived, she was flagged down by a female

identified by Officer Baum as the complaining witness.            Officer

Baum stated that the complaining witness’s halter top was

ripped, and the officer observed a “kind of a scratch” on her

back.    The complaining witness described her assailant, the

vehicle he was driving, and the vehicle’s license plate number.

The vehicle was subsequently identified by Officer Baum as

belonging to Frank and Andrea Loher.        Following Officer Baum’s

testimony, the State called an HPD fingerprint identification

technician who testified that five sets of fingerprints were

recovered from Loher’s car but that none were a match to the

complaining witness.

           The State then called the complaining witness.

complainant testified that in the early morning hours of July

29, 1999, she was walking along Kapiolani Boulevard when she

accepted an offer of a ride to the airport from an individual


     1
           The Honorable Dexter D. Del Rosario presided over the trial.




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with whom she was not acquainted who was driving a red car.                The

witness made an in-court identification of Loher as the driver.

           The complaining witness related that after the driver

got on the freeway, she fell asleep.        When she woke up, the car

was parked.    The driver then demanded oral sex.        As she tried to

exit the vehicle, the complaining witness described that the

driver ripped her shirt and scratched her back in an attempt to

keep her inside of the car.      She then ran out of the car to a

nearby pay phone, which she used to call police.           The

complainant identified pictures presented by the State of the

alleged crime scene and Loher’s vehicle.

           Following the lunch recess, the defense began its

cross-examination of the complaining witness.          The complainant

confirmed that earlier in the evening and prior to the incident,

she fought with her boyfriend because he got into a car with

three other girls, and she did not want to see him with the

other girls.    The complaining witness clarified that she was

walking because she wanted to go to the airport; she believed

that if she could get to the airport, she could obtain free

airline tickets from her boyfriend’s uncle who worked for an

airline.   Following this testimony, at 1:39 p.m., HPD Detective

Earl Takahashi was called by the State and testified that the

complaining witness identified Loher as the driver in a

photographic lineup.


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            After the conclusion of Detective Takahashi’s

testimony, the State rested its case at approximately 2:15 p.m.

The court recessed, and at 2:27 p.m., the court reconvened

outside the presence of the jury.         Loher’s counsel requested a

continuance until the next trial day on Thursday morning because

he “had no idea that [the State] would finish [its case] this

early,” given that the State had “quite a number of people on

the witness list.”        Counsel stated that he told the defense

witnesses to prepare to testify on Thursday; he related that he

tried to “make a couple calls” to secure the presence of defense

witnesses that day, but they were not available.            Defense

counsel apologized but stated that “it’s too quick for us to

have to present witnesses under the circumstances.”

            The circuit court denied the continuance request,

citing Hawaii Rules of Evidence (HRE) Rule 611 (1993) and noting

that there was more than enough time left in the day to proceed

with trial.2    The court stated that it would “allow the defense

to call Mr. Loher to testify” at that time.           Defense counsel

      2
            HRE Rule 611(a) provides as follows:

            The court shall exercise reasonable control over the mode
            and order of interrogating witnesses and presenting
            evidence so as to (1) make the interrogation and
            presentation effective for the ascertainment of the truth,
            (2) avoid needless consumption of time, and (3) protect
            witnesses from harassment or undue embarrassment.

HRE Rule 611(a) (1993).




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objected, noting that Loher had a right not to testify and that

depending on the testimony of the other witnesses, Loher may

choose not to take the stand.       Counsel further argued that the

court was essentially forcing Loher to testify.

          [Defense counsel]: . . . the Court is actually forcing
          [Loher] to take the stand because now we have nobody to
          call, and you’re saying, Well, we can call Mr. Loher, but
          as a strategic manner in planning for our case, he was
          going to be the last witness I call, and depending how it
          went with the other witnesses, we may not need to call him
          because we can get everything that we need through the
          other witnesses.

                So, in fact, now that we’re being forced to call him
          as first witness in a sense is prejudicial to Mr. Loher
          because he’s being forced to testify when he, in essence,
          we had not decided fully whether or not he would testify
          for sure.

The court stated that it found defense counsel’s argument

unpersuasive because it was counsel’s responsibility to prepare

for trial.

          The Court: The Court does not find the argument persuasive.
          The Court believes that it was the responsibility or is the
          responsibility of counsel to determine when witnesses would
          be available.

                Defense counsel was free to discuss with the State
          the witnesses called and when they would anticipate
          finishing their case.

                Defense counsel has hopefully prepared for this case,
          so should be aware at the present time what the witnesses
          that he intends to call will testify. And having prepared
          and having a knowledge as to what they will say, since they
          are the defense witnesses, then they should be in the
          position to know whether the defendant should testify.

The court also stated that defense counsel had represented that

Loher would testify concerning his alibi defense and suggested

that defense counsel’s objection to Loher testifying that day

was manipulative.


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          The Court: . . . So the Court believes it is not persuasive
          that defense counsel should now argue to this Court, after
          the Court had denied his request to delay the trial till
          Thursday by saying that he does not know what his own
          witnesses will say and depending what they say, he will
          then make the decision whether his client's going to
          testify.

                The Court would also note that during the pretrial
          conferences, as well as in the opening statement, the
          defendant has asserted an alibi that he was not present at
          the time, and that where the -- his location would be
          during certain times defense counsel has also represented
          to the Court that his client is going to testify.

                The Court is not persuaded by his argument and is
          concerned that this may be manipulative in order to obtain
          the relief that the Court had not granted.

When defense counsel requested permission to respond to the

court’s concerns, the court refused, stating that it was

unpersuaded by counsel’s argument and directing counsel to call

Loher to testify or waive his testimony.

          [Defense counsel]: Well, if I can respond.

          The Court: Excuse me, and the Court is unpersuaded by your
          argument. So we’re going to proceed. You may call your
          client to testify, or if you wish, not to testify or engage
          in Tachibana at this time, and he may waive his testimony.
          That is between you and your client.

                So I’m going to take a recess, and before we do that,
          is your client going to testify or is he going to waive his
          right to testify?

In response to the court’s question whether Loher would testify

or waive his right to testify, defense counsel responded, “I’d

like to discuss that matter with him.”         The court then recessed

so that defense counsel could discuss with Loher whether he

would testify.

          The court reconvened at 2:43 p.m., and the defense

called Loher to testify.      Loher stated that he was working on


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the night in question.      When his shift ended at approximately

1:00 a.m. on the morning of July 29, he visited his wife,

Andrea, at the hospital where she worked.          Loher left the

hospital, went to his place of residence, and spoke with his

wife on the phone, and he then slept from approximately 3:30

a.m. until 4:00 a.m.      Loher testified that he left his residence

at around 4:30 a.m. to pick up Andrea’s son, Moses, visit with

Andrea at the hospital, and drive Moses to work.            Loher also

testified that he had previously served in the United States

Army.3

           On cross-examination, the State elicited testimony

that Loher had been dishonorably discharged from the United

States Army.    Loher acknowledged that in a prior statement to

Detective Takahashi, he did not say anything about speaking with

his wife on the phone after leaving the hospital.            Additionally,

Loher confirmed that he told Detective Takahashi that he left

his residence to pick up Moses at 5:30 a.m., rather than at 4:30

a.m. as he had testified on direct examination.           Loher also

agreed that he told Detective Takahashi that no one else had



      3
            After defense counsel finished his direct examination of Loher,
the circuit court granted the State’s motion for the court to reconsider its
ruling on a motion in limine excluding evidence of Loher’s dishonorable
discharge from the United States Army. The court ruled that the State could
establish that Loher was dishonorably discharged.




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access to his car the night that the incident occurred.            After

Loher finished testifying, the court recessed for the day.

          When trial resumed on Thursday, November 16, 2000, the

defense called Moses and Andrea to the stand.          Andrea testified

that Loher arrived at the hospital to visit with her shortly

before 2:00 a.m. and that he left at around 2:35 a.m.            Andrea

stated that after Loher left the hospital and returned to his

residence, she spoke with him on the phone twice, with the

second call occurring at approximately 3:15 a.m. and lasting for

fifteen to twenty minutes.      Andrea called Loher again at around

4:00 a.m. to wake him up so that he could take Moses to work.

On cross-examination, Andrea admitted that some of her

statements at trial were inconsistent with her prior statements

to Detective Takahashi, and she further acknowledged that she

had not told the detective that she called Loher at 4:00 a.m. to

wake him up.

          Moses testified that Loher arrived to pick him up at

about 4:45 a.m. on the morning of July 29.         Moses stated that

Loher drove him to visit with Andrea at the hospital and then to

work, where they arrived at about 6:00 a.m.

          The State then called three rebuttal witnesses who

testified regarding Loher’s place of residence and appearance on

the day of the incident and Andrea’s prior statements to HPD.




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In closing arguments given that same day, both the State and the

defense described the case as resting largely on credibility.

           The jury found Loher guilty of count one, attempted

sexual assault in the first degree.4         On July 18, 2001, Loher was

sentenced to an extended term of life imprisonment with the

possibility of parole, subject to a repeat-offender mandatory

minimum of thirteen years and four months.          The court ordered

Loher to serve his term of life imprisonment consecutively to

sentences he was currently serving in unrelated matters.5

                   B.      Direct Appeal (No. 24489)

           Prior to sentencing, trial counsel withdrew as Loher’s

counsel, and appellate counsel was appointed to represent Loher.6

On appeal, Loher challenged the jury instructions, the

sufficiency of the evidence, and his sentence; he also raised a

claim of ineffective assistance of trial counsel.             Appellate

counsel did not raise the issue of Loher being forced to testify

before the other defense witnesses.         The ICA rejected Loher’s

claims and affirmed his conviction and sentence.             See State v.


     4
            The jury concluded that count two, attempted kidnapping, had
merged with the offense charged in count one; thus, Loher was not convicted
of count two.
     5
            Loher has since fully served the prior sentences and is currently
serving the sentence imposed in this case. See Loher v. Thomas, 2016 WL
4745164, at *3 (D. Haw. Sept. 12, 2016); State v. Loher, No. 24489, 2003 WL
1950475, at *10 (App. Apr. 21, 2003) (mem.).

     6
           See Loher, 118 Hawaii at 526, 193 P.3d at 442.




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Loher (Loher I), No. 24489, 2003 WL 1950475 (App. Apr. 21, 2003)

(mem.).   Loher unsuccessfully sought certiorari review.

                 C.     Post-Conviction Proceedings

          Thereafter, Loher engaged in post-conviction

litigation in both state and federal court on the following

three claims: (1) the circuit court violated his constitutional

rights by forcing him to testify before any of his witnesses or

not at all, in violation of Brooks v. Tennessee, 406 U.S. 605

(1972); (2) appellate counsel rendered ineffective assistance of

counsel by failing to raise the Brooks forced testimony issue on

direct appeal; and (3) the enhancement of his sentence based on

facts found by the circuit court judge violated Apprendi v. New

Jersey, 530 U.S. 466 (2000).

            i.        State Post-Conviction Proceedings

          In State v. Loher (Loher II), No. 26000, 2005 WL

335234 (App. Feb. 11, 2005) (mem.), the ICA rejected Loher’s

Apprendi claim and affirmed the circuit court’s denial of

Loher’s motion for correction of sentence under Hawaii Rules of

Penal Procedure (HRPP) Rule 35 (1993).

          In Loher v. State (Loher III), 118 Hawaii 522, 539,

193 P.3d 438, 455 (App. 2008), overruled on other grounds by

State v. Auld, 136 Hawaii 244, 361 P.3d 471 (2015), the ICA

affirmed in part and vacated in part the circuit court’s denial




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of an HRPP Rule 40 petition submitted by Loher.           Specifically,

the ICA noted that Loher’s HRPP Rule 40 petition could be

construed to raise a claim that appellate counsel was

ineffective for failing to raise the Brooks forced testimony

issue on direct appeal.       118 Hawaii at 532, 193 P.3d at 448.

The ICA concluded that the circuit court erred in denying the

HRPP Rule 40 petition without holding a hearing on the

ineffective assistance of counsel issue, and it therefore

remanded the case to the circuit court for an HRPP Rule 40

hearing.   Id. at 539, 193 P.3d at 455.

           In Loher v. State (Loher IV), No. 29818, 2011 WL

2132828 (App. May 31, 2011) (mem.), the ICA reviewed the circuit

court’s denial of Loher’s HRPP Rule 40 petition following the

hearing conducted on remand pursuant to Loher III.            The ICA

recounted various parts of the testimony that were presented at

the hearing on remand.7      The ICA determined that the circuit


     7
            The ICA noted, inter alia, the following: (1) Loher testified
that he “did not want to testify” at trial and “felt forced to testify when
the judge threatened to ‘end the trial right there on the spot’”; (2) Loher
further stated that he repeatedly told trial counsel that he did not want to
testify; (3) trial counsel testified that it appeared that Loher “always
wanted to testify,” that Loher would testify “no matter what,” and that
although he preferred for Loher to testify last, “the altered order of the
testimony ‘[didn’t] change things that much’” because Loher needed to testify
to a critical time period that his other witnesses, Andrea and Moses, could
not account for; (4) and appellate counsel testified that he had not been
aware of any legal precedent on the issue of forced testimony and that he did
not raise the issue on direct appeal for this reason. Loher IV, 2011 WL
2132828, at *4 (alteration in original).




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court denied Loher’s HRPP Rule 40 petition because Loher had

already decided to testify prior to trial and because trial

counsel was at fault for not having defense witnesses ready to

testify after the State rested its case.          Id. at *4-5.     The ICA

concluded that its opinion in State v. Kido, 102 Hawaii 369, 76

P.3d 612 (App. 2003), had created several exceptions to the rule

set forth in the U.S. Supreme Court’s decision in Brooks v.

Tennessee, 406 U.S. 605 (1972), and that at least two of these

exceptions applied in Loher’s case.         Loher IV, 2011 WL 2132828,

at *6-9.   The ICA therefore ruled that the circuit court

correctly concluded that appellate counsel’s failure to raise

the Brooks forced testimony issue on appeal did not amount to

ineffective assistance of counsel.         Id. at *10.    The Loher IV

court thus affirmed the circuit court’s denial of Loher’s HRPP

Rule 40 petition.     Id.8

                ii.       Federal Habeas Proceedings

           Following the ICA’s decision in Loher IV, Loher,

represented by the federal public defender’s office, sought

habeas relief in federal district court.

           In Loher v. Thomas (Loher V), Civ. No. 11-00731 LEK-

KSC, 2013 WL 8561780 (D. Haw. Oct. 2, 2013), United States
     8
            Loher’s request for certiorari review of the ICA’s decision in
Loher IV was denied by this court with two justices dissenting. See Loher v.
State, No. SCWC-29818, 2011 WL 5926184 (Haw. Nov. 22, 2011) (order).




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Magistrate Judge Kevin S.C. Chang entered findings and

recommendations on Loher’s habeas petition to grant in part

Loher’s Apprendi claim but to deny in part his ineffective

assistance of counsel claim based on the Brooks forced testimony

issue.

           In Loher v. Thomas (Loher VI), 23 F. Supp. 3d 1182 (D.

Haw. 2014), rev’d in part by Loher v. Thomas, 825 F.3d 1103 (9th

Cir. 2016), District Judge Leslie E. Kobayashi of the United

States District Court for the District of Hawaii adopted in part

and rejected in part the recommendations of the magistrate

judge.   The district court determined that the ICA’s application

of Brooks in Loher IV was unreasonable, that a violation of

Brooks occurred in this case, that the violation amounted to a

structural error requiring automatic reversal of conviction,

that the error was not harmless even if harmless error analysis

applied, and that appellate counsel was ineffective for failing

to raise the Brooks claim on direct appeal.          Id. at 1193-1200.

The district court therefore ordered that Loher be released

within thirty days subject to appropriate release conditions,

unless the State elected to retry him.         Id. at 1200-01.

           The State appealed the district court’s ruling in

Loher VI to the Ninth Circuit Court of Appeals.          In Loher v.

Thomas (Loher VII), 825 F.3d 1103 (9th Cir. 2016), the Ninth

Circuit vacated in part and affirmed in part the district


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court’s ruling.      Specifically, the Ninth Circuit concluded that

the ICA’s rejection of Loher’s Brooks claim in Loher IV was not

“objectively unreasonable.”9        Loher VII, 825 F.3d at 1115-17.

            Next, the Ninth Circuit addressed Loher’s claim

regarding ineffective assistance of counsel.            The court observed

that while the ineffective assistance of counsel claim was

independent of the Brooks claim, both claims related to the

underlying merits of Loher’s Brooks forced testimony argument.

Id.   Although the Ninth Circuit concluded that the ICA’s

“rejection of the Brooks claim in a post-conviction appeal,

based on a post-conviction record, did not involve an

objectively unreasonable application of Brooks,” this conclusion

“simply does not answer whether a ‘reasonable probability

exists’ that Loher would have prevailed in his direct appeal,

based on the trial record, if his counsel had raised a Brooks

claim.”    Id. at 1120-21.

            The court concluded that the State had waived its

challenge to the federal district court’s ruling that Loher was

      9
            Federal courts may not grant a state prisoner’s petition for writ
of habeas corpus unless: (1) the state court decision was “contrary to, or
involved an unreasonable application of, clearly established” federal law, or
(2) the state court decision was based on an “unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.”
Loher VII, 825 F.3d at 1111 (quoting 28 U.S.C.A. § 2254(d) (West 1996)). As
noted by the Loher VII court, “[t]his is a ‘difficult to meet’ and ‘highly
deferential standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.’” Id. (quoting
Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).




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entitled to relief on the ground of ineffective assistance of

counsel, and it also concluded that Loher prevailed on his

Apprendi claim.    Id. at 1121.     Therefore, the court granted

Loher’s petition for writ of habeas corpus with respect to both

his ineffective assistance of appellate counsel and Apprendi

claims and remanded the case to the district court to determine

the appropriate remedy.     Id. at 1122-23.

           On remand, the federal district court in Loher v.

Thomas (Loher VIII), Civ. 11-00731 LEK-KSC, 2016 WL 4745164, at

*3 (D. Haw. Sept. 12, 2016), issued a conditional writ directing

the State to release Loher unless (1) the State moved to vacate

the ICA’s decision in Loher IV and (2) Loher’s direct appeal in

Loher I (No. 24489) was reinstated within ninety days.            The

parties agreed, and the district court ordered, that Loher’s

claim regarding ineffective assistance of counsel would be

addressed first by reinstating his direct appeal; then, if

Loher’s direct appeal was unsuccessful, he could seek relief

based upon his Apprendi claim.       Id.

    iii.       Reinstatement of Direct Appeal (No. 24489)

           Upon the State’s motion, the ICA entered an order on

October 25, 2016, vacating its judgments on appeal in Nos. 24489

and 29818.   The ICA reinstated Loher’s thirteen-year old direct

appeal in No. 24489 to “allow Loher to raise on direct appeal

his claim that, in violation of his constitutional rights, Loher


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was ‘forced’ to testify when the trial court refused to grant

Loher a continuance in order to testify after his other

witnesses.”    On December 19, 2016, Loher’s appeal was

transferred to this court.

                       II.      STANDARD OF REVIEW

           This court “answer[s] questions of constitutional law

by ‘exercising our own independent judgment based on the facts

of the case.’”     State v. Aplaca, 96 Hawaii 17, 22, 25 P.3d 792,

797 (2001) (quoting State v. Jenkins, 93 Hawaii 87, 100, 997

P.2d 13, 26 (2000)).      Thus, “questions of constitutional law are

reviewed on appeal ‘under the “right/wrong” standard.’”             Id.

(quoting Jenkins, 93 Hawaii at 100, 997 P.2d at 26).

                             III.   DISCUSSION

           On this renewed direct appeal, Loher contends that the

circuit court’s denial of a continuance, thereby forcing him to

testify before his other witnesses or not at all, violated his

fundamental rights under the federal and Hawaii constitutions.

Loher additionally argues that the circuit court’s action in

this case amounts to “structural error” and is therefore not

subject to harmless error review.10        The State submits that the


     10
            Loher alternatively submits that if harmless error review does
apply, the State cannot prove that the error in this case was harmless beyond
a reasonable doubt.




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circuit court’s denial of the requested continuance did not

constitute error.    Even assuming the existence of error, the

State contends that harmless error review is applicable and that

any error in this case was harmless beyond a reasonable doubt.

    A.       Interference with Defendant’s Decision to Testify

                      i.       Relevant Caselaw

          In Brooks v. Tennessee, the United States Supreme

Court was called upon to review the constitutionality of a

Tennessee statute that required a defendant wishing to testify

to take the stand before any other testimony for the defense was

presented.    406 U.S. 605, 606 (1972).      The Court stated that

“the rule that a defendant must testify first” was based on a

concern that defendants would observe the testimony of their

witnesses, testify last, and tailor their testimony to match the

prior witnesses’ accounts.      Id. at 607.

          In its analysis, the Court first considered the

uncertainties facing a defendant who must decide whether or not

to testify.    The Court noted that a defendant’s choice to take

the stand “may pose serious dangers to the success of an

accused’s defense” because it “carries with it serious risks of

impeachment and cross-examination” and may also “open the door

to otherwise inadmissible evidence which is damaging to his

case.”   Id. at 609 (quoting McGautha v. California, 402 U.S.

183, 213 (1971)).    The Court also pointed out that although a


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defendant will usually have some idea of the strength of the

defense’s evidence, the defendant cannot be absolutely certain

that the defense’s “witnesses will testify as expected or that

they will be effective on the stand.”        Id.   The Court elaborated

that such witnesses “may collapse under skillful and persistent

cross-examination, and . . . fail to impress the jury as honest

and reliable witnesses.”      Id.    Additionally, “the defendant is

unlikely to know” whether testimony of other witnesses “will

prove entirely favorable.”      Id. at 609-10.

            The Court reasoned that due to these uncertainties, a

defendant may not know at the close of the State’s case whether

the defendant’s own testimony “will be necessary or even

helpful.”   Id. at 610.    Thus, the defendant might prefer to

remain silent rather than risk the dangers of then taking the

stand, putting off testifying “until its value can be

realistically assessed.”      Id.    Under the Tennessee statute,

however, defendants were denied the ability to realistically

assess the value of their testimony before deciding whether to

testify, as the statute required defendants to make the decision

at the close of the State’s case-in-chief and before presenting

any other defense witnesses.        Id.   The Court determined that the

statute “exacts a price for [the defendant’s] silence” by

keeping the defendant off the stand entirely unless the

defendant chooses to testify first, thereby “cast[ing] a heavy


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burden on a defendant’s otherwise unconditional right not to

take the stand.”      Id. at 610-11.

            The Court concluded that although the statute

reflected “a state interest in preventing testimonial

influence,” this interest was insufficient to overcome the

defendant’s constitutional right to remain silent.             Id. at 611-

12.   The Court therefore held that the statute “violate[d] an

accused’s constitutional right to remain silent insofar as it

requires [the defendant] to testify first for the defense or not

at all.”    Id. at 612.

            In addition to concluding that the statute violated

the defendant’s constitutional right to remain silent, the Court

also determined that the statute infringed on the defendant’s

constitutional right to due process of law.            Id.   The Court

observed that “[w]hether the defendant is to testify is an

important tactical decision as well as a matter of

constitutional right,” and “[b]y requiring the accused and

[defense counsel] to make that choice without an opportunity to

evaluate the actual worth of their evidence, the statute

restricts the defense--particularly counsel--in the planning of

its case.”     Id.   Further, the penalty for the defendant’s

decision to exercise his or her right to remain silent “is to

keep the defendant off the stand entirely,” even though counsel,

as a matter of professional judgment, may want to call the


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defendant to testify later in the trial.          Id.   As a result, the

statute operated to deprive the accused of “the ‘guiding hand of

counsel’ in the timing of this critical element of the

defense.”11   Id. at 612-13 (quoting Powell v. Alabama, 287 U.S

45, 69 (1932)).     Although the Court noted that “nothing [it]

say[s] here otherwise curtails in any way the ordinary power of

a trial judge to set the order of proof, the accused and

[defense] counsel may not be restricted in deciding whether, and

when in the course of presenting [the] defense, the accused

should take the stand.”      Id. at 613.




     11
            The Court held in part that the statute violated the defendant’s
constitutional due process rights as imposed on the states by the Fourteenth
Amendment. 406 U.S. at 612. However, subsequent decisions of the United
States Supreme Court have alternatively characterized the due process clause
violation found in Brooks as a violation of the defendant’s right to the
effective assistance of counsel. See, e.g., Herring v. New York, 422 U.S.
853, 857-58 (1975) (identifying Brooks, 406 U.S. 605, as contributing to a
“meaning [of the right to the assistance of counsel] that ensures to the
defense in a criminal trial the opportunity to participate fully and fairly
in the adversary factfinding process”); Cuyler v. Sullivan, 446 U.S. 335, 344
(1980) (stating that “court procedures that restrict a lawyer’s tactical
decision to put the defendant on the stand unconstitutionally abridge the
right to counsel” and citing Brooks, 406 U.S. 605, as an example); United
States v. Cronic, 466 U.S. 648, 659 n.25 (1984) (reasoning in context of the
right to effective assistance of counsel that “a trial is unfair if the
accused is denied counsel at a critical stage of [] trial” and citing Brooks,
406 U.S. 605, as an example); Strickland v. Washington, 466 U.S. 668, 686
(1984) (determining that “[g]overnment violates the right to effective
assistance [of counsel] when it interferes in certain ways with the ability
of counsel to make independent decisions about how to conduct the defense”
and citing Brooks, 406 U.S. 605, as an example); Bell v. Cone, 535 U.S. 685,
695, 696 n.3 (2002) (describing situations implicating the Sixth Amendment
right to counsel and citing Brooks, 406 U.S. 605, as an example of an actual
or constructive complete denial of counsel at a critical stage in the
proceedings).




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           Hawaii appellate courts have considered the principles

established by Brooks on several occasions.           In State v.

Grindles, 70 Haw. 528, 533, 777 P.2d 1187, 1191 (1989), this

court first relied on Brooks to hold that a defendant was

entitled to have the State present its entire case before

deciding whether or not to take the stand.          In Grindles, the

defendant was charged with driving under the influence of

intoxicating liquor, and the relevant statute set forth one

offense with alternative methods of proof.12          Id. at 530-31, 777

P.2d at 1189.    At trial, the court announced that it would

bifurcate the proceedings based on the two alternative means of

committing the offense.      Id. at 529, 777 P.2d at 1189.         After

the State presented its evidence with respect to the first means

of committing the offense, the court ordered that the defendant

should present his case on that issue before the court would

proceed with the State’s case-in-chief on the second means.                 Id.

at 529-30, 777 P.2d at 1189.

           The defendant refused to present any testimony until

the State had presented its entire case against him, arguing

that the trial court’s proposed procedures violated his

      12
            Commission of the offense at issue in Grindles could be
demonstrated if either (1) the defendant operated a vehicle while under the
influence of intoxicating liquor, or (2) the defendant operated a vehicle
with “0.10 percent or more, by weight of alcohol in the person’s blood.” 70
Haw. at 530-31, 777 P.2d at 1189 (quoting HRS § 291-4(a) (repealed 2000)).




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constitutional rights.     Id.   This court agreed, reasoning that

as applied to criminal trials, the “denial of due process is the

failure to observe that fundamental fairness essential to the

very concept of justice” and concluding that the trial court’s

procedures violated the defendant’s “due process right to a fair

trial” because the procedures were “fundamentally unfair.”             Id.

at 532, 777 P.2d at 1190 (quoting Lisenba v. California, 314

U.S. 219, 236 (1941)).

          The Grindles court also analyzed the Supreme Court’s

decision in Brooks, 406 U.S. 605, and observed the significance

of “a defendant’s constitutional interest in controlling the

timing and sequence of evidence” in the defense’s case.

Grindles, 70 Haw. at 532, 777 P.2d at 1190.          The court concluded

that based on Brooks, 406 U.S. 605, “the defendant has an

absolute right to hear the State’s case” before deciding whether

or not to testify.    Grindles, 70 Haw. at 533, 777 P.2d at 1191

(emphasis omitted).     As a result, the court determined that the

procedures also improperly burdened the defendant’s right

against self-incrimination afforded by the Fifth Amendment to

the United States Constitution and article I, section 10 of the

Hawaii Constitution.    Id. at 532, 777 P.2d at 1190.

          In State v. Kido, 102 Hawaii 369, 378, 76 P.3d 612,

621 (App. 2003), the ICA applied Brooks and Grindles to hold

that an order requiring a defendant to testify prior to other


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defense witnesses violated the defendant’s state and federal

constitutional rights to due process and against self-

incrimination.    In Kido, the defense sought to begin its case at

trial by calling to the stand a witness that was being held by

the State on an unrelated matter; the witness was present at the

courthouse, but was occupied in a different hearing.           102 Hawaii

at 371-72, 76 P.3d at 614-15.       Because the witness was not

available, the trial court required the defense to call the

defendant to the stand because he was the only other witness

present and because of the court’s concern that the parties were

“wasting time.”     Id. at 372, 76 P.3d at 615.       Following defense

counsel’s overruled objection, the defendant testified and was

subsequently convicted.     Id.

          On appeal, the ICA first reviewed the United States

Supreme Court’s decision in Brooks, 406 U.S. 605.           Kido, 102

Hawaii at 374-76, 76 P.3d at 617-19.        The ICA noted that “some

federal and state appellate courts, presented with averments of

Brooks error, have declined to find constitutional error” in the

following three categories of cases: (1) where “the trial court

required that the defendant testify before only some of his

witnesses”; (2) where “the defendant’s decision whether to

testify congealed before the trial court’s action”; and (3)

where “the defendant himself created the exigency for taking his

testimony first.”     Id. at 376, 76 P.3d at 619.       The ICA


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elaborated that “[i]n so holding, some of those courts have

noted the distinction between the statutory directive in Brooks

and the trial court directive before them, though none have

explained why the distinction makes a constitutional

difference.”   Id. (footnote omitted).

          The ICA concluded, however, that “those cases [were]

factually distinguishable” because “the choice foisted upon Kido

was effectively the same choice the Tennessee statute forced

upon Brooks”--i.e., testify first, before any other defense

witnesses, or do not testify at all.        Id.   The ICA noted that

the record contained no indication that the defendant had

already decided to testify, that the defendant “created an

exigency that pushed him to the head of the witness list,” or

that the inconvenience that would have resulted from delaying

the proceedings to secure the presence of the other defense

witness would have been anything more than “trifling.”            Id. at

377, 76 P.3d at 620.     The ICA therefore held that the trial

court abused its discretion in “directing, over Kido’s

objection, that he testify before his other defense witness.”

Id. at 378, 76 P.3d at 621.

          The ICA again considered the issue of forced testimony

in State v. Sale, 110 Hawaii 386, 133 P.3d 815 (App. 2006).               In

Sale, the defendant affirmed during trial that he would take the

stand but sought to testify after his only other witness.             110


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Hawaii at 390-91, 133 P.3d at 819-20.        However, when the other

witness could not be located, the circuit court required the

defense to proceed with its case “in the interest of not wasting

time.”   Id. at 391, 133 P.3d at 820.       As a result, the defendant

took the stand and testified in his own defense.           Id.    Although

the other witness was later located, he stated his intent to

invoke his right against self-incrimination; when the defense

sought to have the witness testify as to basic facts of his

relationship with the defendant, the circuit court deemed such

testimony inadmissible under HRE Rule 403 (1993).           Id. at 391-

92, 133 P.3d at 820-21.

           The defendant in Sale subsequently appealed his

conviction, arguing, inter alia, that the trial court erred in

requiring him to testify before resolving whether his other

witness would testify.     Id. at 396, 133 P.3d at 825.          The ICA in

its decision analyzed both Brooks, 406 U.S. 605, and Kido, 102

Hawaii 369, 76 P.3d 612, and observed that “[n]otwithstanding

the broad language in Brooks, courts have declined to find

constitutional error in circumstances factually distinguishable

from Brooks.”   Sale, 110 Hawaii at 397, 133 P.3d at 826.

However, the ICA determined that it “need not address whether

the circuit court’s actions amounted to Brooks error” because it

“conclude[d] that any error was harmless beyond a reasonable




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 doubt.”     Id.13   The ICA reasoned that the defendant “had already

 stated his decision to testify on the record” before the circuit

 court required him to testify first and the defendant “turned

 out to be the only witness for the defense.”           Id. at 397-98, 133

 P.3d at 826-27.

ii.         A Court May Not Restrict a Defendant in Deciding Whether
                            and When to Testify

              Caselaw of this jurisdiction and of the United States

 Supreme Court makes clear that a defendant and defense counsel

 “may not be restricted in deciding whether, and when in the

 course of presenting his [or her] defense, the accused should

 take the stand.”      Brooks, 406 U.S. at 613.       Any such restriction

 violates Hawaii’s constitutional guarantee against self-

 incrimination provided by article I, section 10, the right to

 due process of law under article I, section 5, and the right to




       13
             In its 2008 decision in Loher III, 118 Hawaii at 539, 193 P.3d at
 455, the ICA once again addressed Brooks and its progeny. Although the ICA
 in Loher III addressed only whether appellate counsel was ineffective for
 failing to raise the Brooks forced testimony issue on direct appeal, it
 observed in a footnote that “in Kido, [the ICA] identified various situations
 where Brooks error would not be found.” 118 Hawaii at 533 n.6, 193 P.3d at
 449 n.6. The ICA then listed the three categories of cases identified in
 Kido and briefly recounted its opinions in both Kido and Sale. Id.

             Additionally, in its unpublished opinion of Loher IV, No. 29818,
 2011 WL 2132828, at *7-9, the ICA likewise stated that other courts “ha[d]
 held that no Brooks error exists” in the three categories of cases identified
 by Kido, and it applied two of the exceptions to determine that there was no
 Brooks error in Loher’s case.




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the assistance of counsel14 under article I, section 14,15 as well

as the analogous provisions of the United States Constitution.

See U.S. Const. amend. V; U.S. Const. amend. XIV; U.S. Const.

amend. VI.

           Although Brooks addressed a statute that imposed

restrictions on a defendant’s decision whether and when to take

the stand, the Court’s concerns that the restriction precluded

the defendant from making the choice to testify or remain silent

“in the unfettered exercise of [the defendant’s] own will” and

also deprived the accused of “the ‘guiding hand of counsel’”

apply with as much strength to a court’s directive at trial as

to a requirement imposed by statute.         Id. at 610, 612-13 (first

quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964); then quoting

Powell, 287 U.S. at 69); see also Kido, 102 Hawaii at 376, 76


      14
            Although courts of this jurisdiction have previously found such a
requirement to violate the privilege against self-incrimination and the right
to due process, we concur with the reasoning of multiple decisions issued by
the United States Supreme Court, see supra note 11, that the reasoning
underlying the Brooks court’s finding of a due process violation also
implicates the constitutional guarantee to the effective assistance of
counsel. See Brooks, 406 U.S. at 612-13 (describing the relevant violation
as based on the accused’s deprivation of “the ‘guiding hand of counsel’ in
the timing of [a] critical element of [the] defense” and the fact that the
statute “restricts the defense--particularly counsel--in the planning of its
case” (quoting Powell, 287 U.S. at 69)).
     15
            See Haw. Const. art. I, § 10 (“[N]or shall any person be
compelled in any criminal case to be a witness against oneself.”); Haw.
Const. art. I, § 5 (“No person shall be deprived of life, liberty or property
without due process of law . . . .”); Haw. Const. art. I, § 14 (“In all
criminal prosecutions, the accused shall enjoy the right to . . . have the
assistance of counsel for the accused’s defense.”).




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P.3d at 619 (observing that some courts have “noted the

distinction between the statutory directive in Brooks and the

trial court directive before them, though none have explained

why the distinction makes a constitutional difference” (footnote

omitted)); Grindles, 70 Haw. at 531-33, 777 P.2d at 1190-91

(deeming unconstitutional a trial court’s bifurcation of

proceedings and directive that a defendant testify prior to the

close of the State’s case based in part on Brooks, 406 U.S.

605).

          The State argues, however, that no Brooks violation

occurred in this case because this jurisdiction has adopted

exceptions to the principles recognized in Brooks and because at

least two of these exceptions apply.        In support of its argument

on this issue, the State relies primarily on the ICA’s decision

in Kido, 102 Hawaii 369, 76 P.3d 612.

          Kido, however, did not adopt exceptions to the

principles elucidated in Brooks.         Rather, the ICA in Kido

observed that “some federal and state appellate courts” had

adopted such exceptions.      102 Hawaii at 376, 76 P.3d at 619

(emphasis added).    The Kido court identified three categories of

cases in which other courts confronted with a Brooks error had

declined to find constitutional error.         Id.   Although the Kido

court observed that the record was devoid of an indication that

two of these exceptions were relevant to its disposition, it


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ultimately concluded that the defendant’s constitutional rights

were violated because “the choice foisted upon Kido was

effectively the same choice the Tennessee statute forced upon

Brooks.”   Id.

           Nor did the ICA adopt exceptions to the Brooks ruling

in Sale.   110 Hawaii 386, 133 P.3d 815.        The ICA in Sale again

stated that some courts had “declined to find” a Brooks

violation in “factually distinguishable” circumstances.             Sale,

110 Hawaii at 397, 133 P.3d at 826.         Although the Sale court did

consider the legal relevance of one of the exceptions identified

by Kido (namely, whether the defendant’s decision to testify had

“congealed”)., it did so only within the context of determining

whether any alleged Brooks error would be harmless beyond a

reasonable doubt, thereby confirming that it did not find that

this consideration should be analyzed in determining whether a

violation occurred.      Sale, 110 Hawaii at 397, 133 P.3d at 826.16

           Significantly, this court has not adopted “exceptions”

to the constitutional protections first set forth by the Supreme

Court in Brooks and subsequently affirmed in this jurisdiction.

Rather, this court’s consideration of Brooks reflects our

     16
            While the ICA in Loher III observed in a footnote that “[i]n
Kido, [the ICA] identified various situations where Brooks error would not be
found,” 118 Hawaii at 533 n.6, 193 P.3d at 449 n.6, this appears to be based
upon a misreading of its prior decision in Kido.




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understanding of the grave importance of “a defendant’s

constitutional interest in controlling the timing and sequence

of evidence in his defense.”      Grindles, 70 Haw. at 532, 777 P.2d

at 1190.   Further, the possible exceptions identified by the ICA

in Kido are inconsistent with the protections afforded to

defendants in this jurisdiction and with the concerns underlying

the Supreme Court’s decision in Brooks.         406 U.S. at 612-13.

           One exception involves a factual inquiry into

whether the defendant previously decided to testify and

whether this decision had “congealed” prior to the trial

court’s requirement that the defendant testify or waive the

right.   Kido, 102 Hawaii at 376, 76 P.3d at 619.         This

exception, however, is in derogation of the latitude given to

a defendant to delay deciding whether to take the stand until

after the defense’s case has been presented and to be able to

change one’s mind following any preliminary decision.             Brooks,

406 U.S. at 609-10.     The Brooks Court’s conclusion that a

defendant is constitutionally entitled to not decide whether

to testify until after viewing the strength of the defendant’s

case was based in large part on a concern that even though a

defendant may make a preliminary decision whether to take the

stand, such a decision may change after presentation of the




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witnesses and other evidence in the defense’s case.            See id.;

Grindles, 70 Haw. at 532–33, 777 P.2d at 1190–91.17           An

exception based on a defendant’s preliminary decision as to

whether to take the stand would conflict with the ruling in

Brooks because it would remove the defendant’s power to choose

whether, and when, to testify once a provisional decision had

been made, thereby eliminating the defendant’s right to change

his or her mind as the defense’s case at trial proceeds.

           Adopting an exception to Brooks that excuses a

violation of a defendant’s constitutional rights based on the

defendant’s prior assertion that he or she would take the stand

is also inconsistent with fundamental principles that underlie

this court’s decision in Tachibana v. State, 79 Hawaii 226, 900

P.2d 1293 (1995).     In Tachibana, we held that trial courts must

conduct an on-the-record colloquy to advise defendants of their

right to testify and to determine whether the defendant wishes

to exercise or waive the right.        Id. at 237-38, 900 P.2d at

1304-05.   We concluded that the “ideal time” to conduct the

     17
            See also United States v. Cook, 608 F.2d 1175, 1189 (9th Cir.
1979) (Kennedy, J., dissenting in part and concurring in part) (“At the
outset of the trial, a defendant in good faith may intend to testify, but it
may be quite reasonable for him to change his mind after considering the
course taken by the evidence. All of us know a defendant may tell a brave
story to his counsel only to succumb to fear once the full weight of the
prosecution’s case becomes apparent. In these instances a defendant and his
counsel often elect to invoke the self-incrimination privilege despite an
earlier plan to testify.”), overruled on other grounds by Luce v. United
States, 469 U.S. 38 (1984).




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colloquy is “immediately prior to the close of the defendant’s

case,” based in large part on our observation that “the

defendant may not be in a position to decide whether to waive

the right to testify until all other evidence has been

presented.”   Id. at 237, 900 P.2d at 1304.        Implicit in our

holding in Tachibana was our conclusion that a defendant must be

afforded the opportunity to not decide whether to take the stand

until the close of the defense’s case.         An exception that

effectively waives the defendant’s constitutional right to

testify or not to testify based on a preliminary decision, made

before the defense’s case was presented, would be inconsistent

with the principles enunciated in Tachibana.

          An exception grounded in a defendant’s prior assertion

regarding the decision to testify would also run counter to the

emphasis placed by Tachibana and its progeny on the fundamental

importance of ensuring that such a decision is made knowingly

and intelligently.    Id. at 233-36, 900 P.2d at 1300-03; see also

State v. Monteil, 134 Hawaii 361, 371, 341 P.3d 567, 577 (2014)

(“[A] decision by a defendant not to testify should be based

upon a defendant’s awareness of the ‘relevant circumstances and

likely consequences’ of such a decision.” (quoting Brady v.

United States, 397 U.S. 742, 748 (1970))).         In the context of

deciding whether to testify or not testify, a fully-informed

determination requires the defendant to have knowledge of and


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“intelligently weigh” “the advantages and disadvantages” of

testifying and being subject to cross-examination, which the

defendant may be unable to assess until the close of the

defense’s case.     Grindles, 70 Haw. at 532-33, 777 P.2d at 1190-

91 (quoting Brooks, 406 U.S. at 608).         Requiring the defendant

to choose whether or not to take the stand based on a prior,

preliminary decision--made before being able to assess the state

of the defense at trial--will often impair the defendant’s

ability to make a knowing, fully-informed choice.

           The remaining exceptions identified by the ICA in Kido

suffer from similar flaws.       102 Hawaii at 376, 76 P.3d at 619.

The “exigency” exception is based on a defendant’s relative

fault for “creat[ing] the exigency for taking his testimony

first.”   Id.   This exception would result in the automatic

forfeiture of a defendant’s constitutional rights if, for

example, defense counsel inaccurately predicts the number of

witnesses who are called to testify by the State, overestimates

the duration of the witnesses’ testimony, misunderstands a

communication by the State regarding the expected length of

trial, or fails to anticipate that a defense witness will be

tardy or not appear.18


     18
            See, e.g., Kido, 102 Hawaii at 371-72, 76 P.3d at 614-15
(defendant required to testify first based on State’s inability to produce

                                                              (continued. . .)


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            An exigency exception would therefore permit the

errors of counsel to waive fundamental rights held exclusively

by the defendant, despite our requirement that such

relinquishment may be effectuated “only by the defendant.”

Tachibana, 79 Hawaii at 232, 900 P.2d at 1299 (quoting State v.

Silva, 78 Hawaii 115, 123, 890 P.2d 702, 710 (App. 1995),

abrogated on other grounds by Tachibana, 79 Hawaii 226, 900 P.2d

1293); see also id. (“a defendant’s personal constitutional

right to testify truthfully . . . may not be waived by counsel

as a matter of trial strategy” (quoting United States v. Moody,

977 F.2d 1425, 1431 (11th Cir. 1992))).          Predicating the

deprivation of a defendant’s constitutional rights on

inadvertent errors of counsel or a late arrival of a witness is

also a deficient proxy for ensuring that a defendant makes a

knowing, intelligent, and fully-informed decision whether to

testify.    See id. at 232, 900 P.2d at 1299.

            The final exception identified by Kido relates to

whether the trial court required that the defendant testify

“before only some of his [or her] witnesses.”           102 Hawaii at



(. . .continued)

defense’s other witness at trial); Sale, 110 Hawaii at 390-91, 133 P.3d at
819-20 (defendant required to testify first based in part on defense
counsel’s inability to secure presence of other defense witness).




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376, 76 P.3d at 619.     However, compelling the defendant to

testify or to give up that right after the first or second

witness but prior to the remaining defense witnesses suffers

from the same constitutional flaws as the two exceptions

described above.    Namely, such an exception would force the

defendant to make the decision whether to testify before the

value of the defense’s remaining evidence could be

“realistically assessed,” Brooks, 406 U.S. at 610, and it would

be an inadequate substitute for securing a defendant’s knowing

and intelligent waiver of his or her constitutional rights,

Tachibana, 79 Hawaii at 233-36, 900 P.2d at 1300-03.           Further,

there appears to be no reasonable basis for a rule that would

prohibit the court from requiring a defendant to testify first,

yet permit the court to order a defendant to testify or give up

that right prior to the presentment of other witnesses in the

defense’s case.

          Although it is true that under HRE Rule 611 (1993),

the trial judge possesses the authority to “exercise reasonable

control over the mode and order of interrogating witnesses and

presenting evidence,” the rules of evidence “cannot override the

constitutional rights of the accused.”         State v. Calbero, 71

Haw. 115, 124, 785 P.2d 157, 161 (1989); see also State v. Tetu,

139 Hawaii 207, 214, 386 P.3d 844, 851 (2016) (observing that

the rules of criminal procedure do not set “outer limit[s]” on


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the court’s power to protect constitutional rights).            The trial

court may not rely on its authority to set the order of proof in

a manner that violates the constitutional rights of defendants,

and, therefore, it may not invoke such authority to require the

defendant to testify before the defense’s other witnesses or not

at all.   See Brooks, 406 U.S. at 613 (“While nothing we say here

otherwise curtails in any way the ordinary power of a trial

judge to set the order of proof, the accused and his counsel may

not be restricted in deciding whether, and when in the course of

presenting his defense, the accused should take the stand.”

(emphases added)).      Accordingly, while a trial court may control

the mode and order of the presentation of evidence at trial to

serve the interests of judicial economy, “[p]ressuring the

defendant to take the stand, by foreclosing later testimony if

[the defendant] refuses, is not a constitutionally permissible

means” of achieving this goal.19        Id. at 611.

           In sum, the United States Supreme Court established in

Brooks, 406 U.S. at 613, that a defendant may not be restricted

in deciding whether to waive the privilege against self-

incrimination or in determining when the defendant should take


     19
            We observe that a trial court retains authority to deny a
continuance requested by the defense during trial when, despite being given
reasonable and sufficient opportunity to secure a witness, the witness does
not appear at trial.




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   the stand in the defense’s case.           We adopted this principle in

   Grindles and concluded that the Hawaii Constitution likewise

   protects a defendant’s freedom to choose when and whether to

   testify for the defense.        70 Haw. at 531-33, 777 P.2d at 1190-

   91.    The exceptions identified by the ICA in Kido, 102 Hawaii at

   376-77, 76 P.3d at 619-20, are inconsistent with this court’s

   ruling in Grindles and contrary to the protections afforded to

   defendants under the Hawaii Constitution, and, therefore, we

   decline to adopt them.20

iii.       The Circuit Court Violated Loher’s Constitutional Rights by
       Compelling Him to Testify Before His Other Witnesses or Not At
                                     All

               In this case, the State identified up to fourteen

   witnesses that it would call in its case-in-chief, and the trial

   was expected by the parties and the court to last between five

   and six days.     On the first day of the evidentiary portion of

   the trial on Tuesday, November 14, 2000, the State rested its

   case at approximately 2:15 p.m.         The circuit court then

   announced that it would take a brief recess, after which it

   would “give the defense an opportunity to present any evidence.”


          20
               To the extent that Kido and other prior cases of the ICA may be
   read as approving such exceptions, this reading is rejected. See, e.g.,
   Kido, 102 Hawaii at 376-77, 76 P.3d at 619-20; Sale, 110 Hawaii at 397, 133
   P.3d at 826; Loher III, 118 Hawaii at 533 n.6, 193 P.3d at 449 n.6; Loher IV,
   No. 29818, 2011 WL 2132828, at *7-9.




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When the court reconvened outside the presence of the jury,

defense counsel requested a continuance until the next trial day

on Thursday, November 16, when the defense’s witnesses had been

arranged to appear.     According to defense counsel, the

unavailability of the two witnesses was due to counsel’s

approximation that the witnesses would not be needed until

Thursday.   Counsel informed the court that he “had no idea that

[the State] would finish this early . . . because they have

quite a number of people on the witness list.”

            Defense counsel further explained to the circuit court

the reasons for requesting the continuance, stating that Loher

“had not decided fully whether or not he would testify for

sure.”   Counsel informed the court that “as a strategic manner

in planning for [the defense’s] case, [Loher] was going to be

the last witness [he] call[ed],” and whether Loher testified or

not would “depend[] how it went with the other witnesses.”             In

response to counsel’s objection, the circuit court stated that

it was “the responsibility of counsel” to secure the presence of

his witnesses, that defense counsel “should be aware . . . what

the witnesses that he intends to call will testify,” and that

defense counsel had also “represented to the [circuit court]

that his client [was] going to testify.”         Invoking its authority

to set the order of proof under HRE Rule 611 (1993), the circuit

court denied the request for a continuance over defense


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counsel’s objection.       The court announced, “So we’re going to

proceed.    You may call your client to testify, or if you wish,

not to testify . . . and he may waive his testimony.”21

            The circuit court thus indisputably required Loher to

either testify before his other witnesses or waive his right to

testify entirely, thereby “restrict[ing]” Loher and his counsel

“in deciding whether, and when in the course of presenting his

defense, the accused should take the stand.”            Brooks, 406 U.S.

at 613; see also Grindles, 70 Haw. at 532-33, 777 P.2d at 1190-

91.   In imposing this requirement, the circuit court

unreasonably burdened Loher’s privilege against self-

incrimination in violation of the Fifth Amendment to the United

States Constitution and article I, section 10 of the Hawaii

Constitution, preventing Loher from making the choice whether

and when to testify free of coercion from the court.             See

Brooks, 406 U.S. at 610 (noting that under the Tennessee

statute, the defendant could not make the choice whether to

testify “in the unfettered exercise of his own will” (quoting

Malloy, 378 U.S. at 8)).



      21
            We observe that at the time the trial court ordered Loher to
testify first or not at all, the ICA had not yet set forth its decisions in
Kido, 102 Hawaii 369, 76 P.3d 612, and Sale, 110 Hawaii 386, 133 P.3d 815,
observing the existence of “exceptions” in other jurisdictions to the rule
set forth in Brooks, 406 U.S. 605.




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          The circuit court’s actions also impaired Loher’s

constitutional right to the assistance of counsel as provided by

the Sixth Amendment to the United States Constitution and

article I, section 14 of the Hawaii Constitution.          Loher was

deprived of an advisement by defense counsel on whether to take

the stand that was fully-informed and made following counsel’s

“evaluat[ion] [of] the actual worth” of the defense’s evidence,

see Brooks, 406 U.S. at 612, and the circuit court undermined

counsel’s ability to present the defense of Loher’s choosing.

          Additionally, the circuit court’s interference with

counsel’s ability to mount Loher’s alibi defense burdened

Loher’s right to “be accorded ‘a meaningful opportunity to

present a complete defense,’” State v. Matafeo, 71 Haw. 183,

185, 787 P.2d 671, 672 (1990) (quoting California v. Trombetta,

467 U.S. 479, 485 (1984)), and represented a “failure to observe

that fundamental fairness essential to the very concept of

justice,” Grindles, 70 Haw. at 532, 777 P.2d at 1190 (quoting

Lisenba, 314 U.S at 236).      Therefore, the circuit court’s

actions also violated Loher’s right to due process of law under

the Fourteenth Amendment to the United States Constitution and

article I, section 5 of the Hawaii Constitution.




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   B.     Applicability of Structural Error or Harmless Error
                             Analysis

          Because we conclude that Loher’s constitutional rights

were violated when the circuit court required him to testify

before his other witnesses or forfeit his right to testify

entirely, we must determine whether the violation is structural

error or subject to harmless error analysis.          See State v. Reed,

135 Hawaii 381, 386, 386 n.11, 351 P.3d 1147, 1152, 1152 n.11

(2015) (characterizing structural errors and stating that such

errors are not subject to harmless error analysis).

                    i.      Federal Constitution

          After concluding that the defendant was deprived of

his constitutional rights in Brooks v. Tennessee, the United

States Supreme Court did not explicitly address whether the

violation was subject to harmless error analysis.           406 U.S. 605,

613 (1972).   Rather, the Court concluded that “[t]he State makes

no claim that this was harmless error, and [the defendant] is

entitled to a new trial.”      Id. at 613 (citation omitted).

          Following its decision in Brooks, the Supreme Court

has on several occasions characterized Brooks as exemplifying a

violation of the Sixth Amendment’s guarantee of the assistance

of counsel that requires no showing of prejudice.           See United

States v. Cronic, 466 U.S. 648, 659 n.25 (1984) (observing that

in the context of the Sixth Amendment right to the effective



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assistance of counsel, Brooks, 406 U.S. 605, is an example where

the Supreme Court “found constitutional error without any

showing of prejudice when counsel was either totally absent, or

prevented from assisting the accused during a critical stage of

the proceeding”).22     The Supreme Court has reasoned that no

showing of prejudice is required in this situation in part

because the denial of counsel is “so likely to prejudice the

accused that the cost of litigating [its] effect in a particular

case is unjustified,” Cronic, 466 U.S. at 658, and because these

circumstances “involve impairments of the Sixth Amendment right

that are easy to identify” and “easy for the government to

prevent,” Strickland, 466 U.S. at 692; see also People v.

Mitchell, 560 N.W.2d 600, 605 (Mich. 1997) (characterizing

Brooks, 406 U.S. 605, as an example of “the court or the state

directly interfer[ing] with the attorney-client relationship by

preventing counsel from rendering assistance” and describing the


     22
            See also Strickland v. Washington, 466 U.S. 668, 692 (1984)
(explaining that “[a]ctual or constructive denial of the assistance of
counsel altogether is legally presumed to result in prejudice,” as well as
“various kinds of state interference with counsel’s assistance” and citing
the examples identified by Cronic, 466 U.S. at 659 n.25 (including Brooks,
406 U.S 605)); Bell v. Cone, 535 U.S. 685, 696 n.3 (2002) (relating certain
situations where the Supreme Court “found a Sixth Amendment error without
requiring a showing of prejudice” because the defendant was actually or
constructively denied counsel and citing Brooks, 406 U.S. 605, as an
example); Wright v. Van Patten, 552 U.S. 120, 124 (2008) (affirming that
Cronic, 466 U.S. 648, establishes that no showing of prejudice is required to
find a Sixth Amendment violation when “counsel is either totally absent, or
prevented from assisting the accused during a critical stage of the
proceeding” (alteration omitted) (quoting Cronic, 466 U.S. at 659 n.25)).




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presumption of prejudice in such cases as a “prophylactic

approach”).23

                     ii.       State Constitution

            We recognize that while some federal and state courts

have considered Brooks violations to constitute structural

error, other courts have applied harmless error analysis.

However, this court has explicitly considered that the rights

provided by the Hawaii Constitution regarding due process of

law, the privilege against self-incrimination, and the

assistance of counsel--each of which was violated in this case--

may in certain circumstances provide greater protections to

defendants in the State of Hawaii.24        Thus, we consider whether,


      23
            Relying on the presumption of prejudice required by the Supreme
Court’s decision in Cronic, several state and federal courts have concluded
that when a criminal defendant has been denied the right to counsel at a
critical stage of the trial or when the ability of counsel to represent the
defendant is subject to certain state interference, the harmless error rule
does not apply. See, e.g., United States v. Roy, 855 F.3d 1133, 1144, 1149
(11th Cir. 2017) (en banc) (describing Brooks, 406 U.S. 605, as exemplifying
a “statutory or court-ordered interference exception to the prejudice
requirement”); see also Wayne R. LaFave et al., Criminal Procedure 1072 (6th
ed. 2017) (describing Brooks, 406 U.S. 605, as exemplifying the prohibition
against “unconstitutional state imposed interference with counsel” which is
“presumed prejudicial and therefore requires automatic reversal”).

      24
            See, e.g., State v. Bowe, 77 Hawaii 51, 58-60, 881 P.2d 538, 545-
47 (1994) (collecting cases in which this court has “broadened the due
process rights of the accused in criminal proceedings”); id. at 57-58, 881
P.2d at 544-45 (“reject[ing]” the United States Supreme Court’s “narrow
focus” regarding the concerns underlying the constitutional privilege against
self-incrimination and holding that the protections afforded by article I,
section 10 of the Hawaii Constitution are “broader”); State v. Aplaca, 74
Haw. 54, 67 n.2, 837 P.2d 1298, 1305 n.2 (1992) (observing that “under
Hawaii’s [c]onstitution, defendants are clearly afforded greater protection
of their right to effective assistance of counsel” than under the federal
constitution).




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given the nature and magnitude of the independent protections

provided by the Hawaii Constitution, the circuit court’s

restriction of Loher’s decision regarding whether and when to

testify in his defense constitutes structural error not subject

to harmless error review.      See Reed, 135 Hawaii at 386, 351 P.3d

at 1152.

   1.      Characteristics of Structural Errors Under Hawaii Law

            Decisions of our courts show that two related

characteristics of an error may render it structural and thus

not subject to harmless error analysis.         First, “certain rights

protected by the Hawaii Constitution” are “so basic to a fair

trial that [their] contravention can never be deemed harmless.”

State v. Holbron, 80 Hawaii 27, 32 n.12, 904 P.2d 912, 917 n.12

(1995) (alteration in original) (quoting State v. Suka, 79

Hawaii 293, 299, 901 P.2d 1272, 1278 (App. 1995), overruled on

other grounds by Holbron, 80 Hawaii 27, 904 P.2d 912); see also

State v. Cramer, 129 Hawaii 296, 311, 299 P.3d 756, 771 (2013)

(Acoba, J., concurring) (stating that this court “in determining

whether to apply harmless error review to the violation of a

particular right” should look in part to the “nature of the

right at issue” (quoting Arizona v. Fulminante, 499 U.S. 279,

291 (1991) (White, J., dissenting in part))); State v. Mundon,

121 Hawaii 339, 382, 219 P.3d 1126, 1169 (2009) (Acoba, J.,


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concurring in part and dissenting in part) (observing that

“Hawaii courts have recognized that the Hawaii Constitution

protects certain rights ‘so basic to a fair trial that [their]

contravention can never be deemed harmless’” (quoting Holbron,

80 Hawaii at 31 n.12, 904 P.2d at 918 n.12)).

          Based on this principle, courts of our jurisdiction

have relied on the inherent nature of the constitutional right

at issue and its significance in affording the defendant a

fundamentally fair trial to conclude that certain errors are not

subject to harmlessness review.       See, e.g., Mundon, 121 Hawaii

at 358, 219 P.3d at 1145 (trial court’s failure to provide

defendant with transcripts from prior proceedings did not

require a showing of prejudice to merit vacatur and remand for a

new trial in part because there was “innate value” to a

defendant in being able to utilize transcripts to prepare for

trial); State v. Silva, 78 Hawaii 115, 121, 890 P.2d 702, 708

(App. 1995) (holding that “when the court assumes the role of a

prosecutor, it violates the fundamental due process requirement

that the tribunal be impartial, and such an error, by

definition, is inherently prejudicial and not harmless”),

abrogated on other grounds by Tachibana v. State, 79 Hawaii 226,

900 P.2d 1293 (1995); State v. Chow, 77 Hawaii 241, 249-51, 883

P.2d 663, 671-73 (App. 1994) (“doubt[ing]” that the denial of an



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opportunity to engage in presentence allocution “can ever be

harmless error,” based in part on the status of allocution as a

“significant aspect of the fair treatment which should be

accorded a defendant in the sentencing process” and its use as a

tool to maximize the perceived equity of the criminal process);

Reed, 135 Hawaii at 386, 351 P.3d at 1152 (stating that

violation of the right to retained counsel of choice constitutes

structural error in part because the right is “deemed of such

importance” and because it is required to maintain “the

integrity of our system of justice”).

          Second, this court has considered that an error may be

properly considered structural when the impact of the error on

conviction is impossible to reliably assess and when harmless

error review would require the appellate court to engage in pure

speculation.   For instance, in Cramer, 129 Hawaii at 303, 299

P.3d at 763, this court suggested that denial of the right to

privately retained counsel of choice under article I, section 14

of the Hawaii Constitution constituted structural error.            We

concluded in Cramer that denial of the defendant’s counsel of

choice at a sentencing hearing constituted error and quoted the

Supreme Court’s reasoning that it is “impossible to know what

different choices the rejected counsel would have made, and then

to quantify the impact of those different choices on the outcome




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of the proceedings.”     Id. (quoting United States v. Gonzalez-

Lopez, 548 U.S. 140, 150 (2006)).        Likewise, we concluded that

requiring the defendant in Cramer “to argue that he was

‘prejudiced’” by the violation would require this court to

“speculate as to how [the counsel of choice] would have

represented [the defendant] at the sentencing hearing.”            Id.     We

therefore vacated the defendant’s judgment and remanded for

resentencing without conducting a harmless error analysis.               Id.

          We again considered the speculative nature of the

impact of a right to counsel violation in State v. Harter, where

we suggested that ineffective assistance of counsel due to a

conflict of interest may require no showing of prejudice to

require vacatur and remand for a new trial.          134 Hawaii 308,

327-28, 340 P.3d 440, 459-60 (2014).        Significantly, we noted

that “it would be impractical to require a defendant to prove

‘adverse effect’ in such a case” because it would be impossible

to know what choices a different lawyer would make in

representing the defendant and because “appellate inquiry ‘into

a claim of harmless error’ may require ‘unguided speculation.’”

Id. (first quoting Cramer, 129 Hawaii at 303, 299 P.3d at 763;

then quoting Holloway v. Arkansas, 435 U.S. 475, 491 (1978)

(improper denial of motion to withdraw based on conflict of

interest constituted error not subject to harmlessness

analysis)).   In support of this proposition, we also quoted the


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Supreme Court’s observations that “it would be difficult to

judge intelligently the impact of a conflict on the attorney’s

representation of a client” and that “to assess the impact of a

conflict of interest on the attorney’s options, tactics, and

decisions in plea negotiations would be virtually impossible.”25

Id. at 328 n.24, 340 P.3d at 460 n.24; see also State v. Phua,

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

remanding without engaging in harmless error analysis where no

valid waiver of counsel was made by the defendant at sentencing,

thereby depriving him of the constitutional right to counsel at

a critical stage of the proceedings); State v. Pitts, 131 Hawaii

537, 319 P.3d 456 (2014) (vacating and remanding without

engaging in harmless error analysis for deprivation of the

constitutional right to counsel during “critical stage[s]” of

post-verdict motion proceeding and sentencing).

  2.         Restricting a Defendant in Deciding Whether and When to
            Testify Amounts to Structural Error Under Hawaii Law

               In this court’s adoption of Brooks, we did not analyze

whether the error was harmless when we vacated the defendant’s

conviction and remanded for a new trial.          State v. Grindles, 70


       25
            The Harter court ultimately concluded that it need not determine
whether a finding of prejudice was required because the defendant did not
voluntarily consent to the attorney-client relationship as required under our
conflict of interest standard, which, standing alone, was sufficient to
require vacatur. 134 Hawaii at 328, 340 P.3d at 460.




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Haw. 528, 531-33, 777 P.2d 1187, 1190-91 (1989).           Rather, the

Grindles court vacated the conviction and remanded to the trial

court without considering the effect of the constitutional

violation on the underlying conviction.         Id.   Despite this

court’s ruling in Grindles, the ICA in State v. Kido held that a

constitutional violation stemming from a trial court’s

requirement that the defendant testify before other defense

witnesses is subject to harmless error review.          102 Hawaii 369,

378, 76 P.3d 612, 621 (App. 2003).        Underlying the ICA’s ruling

were its conclusions that the Brooks court “implied[]” that such

review was applicable and that the violation was not “of the

kind and magnitude” that this court had intimated could never be

deemed harmless.     Id. (citing Holbron, 80 Hawaii at 32 n.12, 904

P.2d at 917 n.12).

          However, the ICA in Kido analyzed neither the nature

nor the “magnitude” of the vital constitutional rights that were

unreasonably burdened.     A court’s interference with a

defendant’s decision whether and when to testify results in the

violation of the defendant’s constitutional privilege against

self-incrimination, right to the effective assistance of

counsel, and right to due process of law.         The fundamental

nature of these three constitutional protections establishes

that Loher was deprived of rights “basic to a fair trial.”




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Holbron, 80 Hawaii at 32 n.12, 904 P.2d at 917 n.12 (quoting

Suka, 79 Hawaii at 299, 901 P.2d at 1278).

           First, equally vital to our system of justice are

“both the right to testify and the right not to testify.”             State

v. Monteil, 134 Hawaii 361, 369, 341 P.3d 567, 575 (2014)

(observing that “Hawaii has historically protected” both

rights).   Whether to take the stand is a critical question that

may pose substantial dangers to the defense’s case, particularly

because it subjects the defendant to cross-examination by the

State.   Grindles, 70 Haw. at 532, 777 P.2d at 1190 (quoting

Brooks, 406 U.S. at 608); see also Brooks, 406 U.S. at 609

(“none would deny that the choice itself may pose serious

dangers to the success of an accused’s defense”).           As observed

by the Supreme Court in Brooks, a defendant’s choice to take the

stand “carries with it serious risks of impeachment and cross-

examination” and may also “open the door to otherwise

inadmissible evidence which is damaging to his case.”            406 U.S.

at 609 (quoting McGautha v. California, 402 U.S. 183, 213

(1971)).   For this reason, our jurisdiction has adopted

significant safeguards to ensure that a defendant’s

constitutionally-protected decision to testify or not testify is

made knowingly, intelligently, and free of state coercion.             See,




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e.g., Tachibana, 79 Hawaii at 236, 900 P.2d at 1303; Monteil,

134 Hawaii at 371, 341 P.3d at 577.

           It is also “well-settled that ‘the right of one

charged with a crime to counsel is deemed fundamental and

essential to a fair trial.’”      Mundon, 121 Hawaii at 366, 219

P.3d at 1153 (alterations omitted) (quoting Gideon v.

Wainwright, 372 U.S. 335, 344 (1963)).         A defendant may “lack[]

both the skill and knowledge to adequately prepare” and present

his or her defense, and for this reason, it is crucial that the

defendant is provided with the “guiding hand of counsel at every

step in the proceedings against him.”        Id. (quoting Geders v.

United States, 425 U.S. 80, 89 (1976)).         In this regard, defense

counsel’s advisement regarding the tactical advantages and

disadvantages of taking the stand is crucially important to a

defendant who must make the decision whether to waive the

privilege against self-incrimination and testify in his or her

defense.   Tachibana, 79 Hawaii at 232, 900 P.2d at 1299.           By

restricting the ability of the defendant to freely make this

significant decision with the informed advice of counsel, the

court “exceeds its judicial power and authority” by interfering

with counsel’s ability to provide representation and “invad[ing]

the province of the attorney-client relationship.”           Silva, 78

Hawaii at 125, 890 P.2d at 712.



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            Finally, it is of paramount importance that defendants

in our jurisdiction are “accorded ‘a meaningful opportunity to

present a complete defense’” in order to satisfy the guarantees

that due process affords.      State v. Matafeo, 71 Haw. 183, 185,

787 P.2d 671, 672 (1990) (quoting California v. Trombetta, 467

U.S. 479, 485 (1984)).     “A primary reason that a defendant is

guaranteed effective assistance of counsel is to ensure that the

defendant is not denied due process,” State v. Tetu, 139 Hawaii

207, 219, 386 P.3d 844, 856 (2016), because counsel helps ensure

that the defendant is able to present the defense of his or her

choosing and receives a fundamentally fair trial.           Requiring

defense counsel to present the testimony of the defendant first,

rather than following the presentation of the remainder of the

case, undermines the ability of counsel to plan and present the

defense’s case.    Where no other defense witnesses have

testified, counsel may be bound to frame questioning differently

or elicit a broader swathe of testimony, thereby increasing the

“serious risks of impeachment and cross-examination.”            Brooks,

406 U.S. at 609.    A trial court’s interference with the

defendant’s ability to make an informed, unrestricted decision

whether to waive a critical constitutional privilege undermines

“that fundamental fairness essential to the very concept of

justice.”   Grindles, 70 Haw. at 532, 777 P.2d at 1190 (quoting

Lisenba v. California, 314 U.S. 219, 236 (1941)).


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           Our caselaw is thus clear that each of the three

constitutional rights that were violated by the circuit court is

fundamentally important in guaranteeing to the accused a fair

trial.   And, because of their complementary protections, these

provisions may overlap to strengthen the constitutional rights

afforded to criminal defendants in the adversarial process.

           Additionally, an application of harmless error review

in this case would require appellate courts to engage in

unguided speculation regarding the impact of the three

constitutional violations on the subsequent conviction.            See

Cramer, 129 Hawaii at 303, 299 P.3d at 763.         By nature of the

court’s error in restricting the defendant’s decision whether

and when to take the stand, the defendant is compelled to either

invoke the constitutional right to remain silent or to waive the

privilege against self-incrimination and testify in his or her

own defense.   An assessment of the error’s impact on conviction

presents several significant difficulties that would ultimately

render it impossible to reliably determine whether there was a

reasonable possibility that the error might have contributed to

the defendant’s conviction.      See Holbron, 80 Hawaii at 32, 904

P.2d at 917 (setting forth harmless error review standard).

           First, the harmlessness inquiry would require the

court to speculate as to what choice the defendant may have made

as to testifying if he or she were afforded the opportunity to


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not choose until after presentation of the defense’s case.

Second, it would require the court to speculate as to what

guidance defense counsel would have given after counsel’s

presentation of the defense and assessment of the actual

strengths and weaknesses of the case, as well as whether the

defendant would in fact have heeded counsel’s advice.26            Third,

in cases where the defendant invoked the privilege to remain

silent but may have testified absent the court’s erroneous

directive, the appellate court would be required to surmise the

entirety of the defendant’s testimony to assess how the

conviction may have been impacted.         Similarly, if the defendant

took the stand following the court’s error, it would be

impossible to determine how the content of the testimony,

including cross-examination and impeachment, would have differed

      26
            Even when the remaining defense witnesses are subsequently unable
to give testimony, the impact of the trial court’s error is similarly
speculative. Defense counsel’s advice on whether to take the stand is often
influenced by what counsel anticipates the defense witnesses may testify to
and the relative strengths, weaknesses, and comprehensiveness of their
testimony. In this situation, the appellate court would be required to
speculate whether and how, had defense counsel known that the witnesses would
be unable to testify, the advice would have differed. The circumstances of
State v. Sale, 110 Hawaii 386, 133 P.3d 815 (App. 2006), present an
instructive example. In that case, the defendant was required by the court
to decide whether he would testify prior to resolving the availability of his
only other witness. Id. at 390-92, 133 P.3d at 819-21. The defendant
elected to take the stand, and it was subsequently determined that his
witness would be unable to testify because he would invoke his own privilege
against self-incrimination that related to the charge against the defendant.
Id. Assessing the impact of error on conviction would have required an
appellate court to speculate as to what advice the defendant’s counsel would
have given had counsel known that the witness would be deemed unavailable and
unable to give testimony in the defendant’s case.




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had the defendant been permitted to testify following

presentation of the remainder of the defense’s case.

Consequently, given the multitude of factors that influence the

defendant’s personal decision to testify, defense counsel’s

professional advisement regarding the choice to testify, and

counsel’s presentment of the defense’s case, it would be

“virtually impossible” to assess the impact of the violation.27

Harter, 134 Hawaii at 328 n.24, 340 P.3d at 460 n.24 (quoting

Holloway, 435 U.S. at 490).

            The circuit court’s procedures in this case

represented direct state interference with the exercise of three

core, fundamental rights.       The nature of these three

constitutional rights, their importance in this jurisdiction in

guaranteeing to the accused a fair trial, and the speculation

that would be required were an appellate court to gauge the

impact of their violation on conviction under harmless error

review manifest that the error in this case can “never be deemed

harmless” under the Hawaii Constitution.28         Holbron, 80 Hawaii


      27
            The ICA’s analysis in Kido, 102 Hawaii at 379, 76 P.3d at 622, is
instructive. In Kido, harmless error analysis required the ICA to speculate
whether the defendant would have testified absent the court’s error; the ICA
guessed that had the court permitted the defendant to testify after his other
witness, “perhaps [the defendant] would then have been well advised to leave
well enough alone.” 102 Hawaii at 379, 76 P.3d at 622.
      28
            We further observe that classification of the error at issue here
as structural protects against a particular violation of three fundamental

                                                              (continued. . .)


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at 32 n.12, 904 P.2d at 917 n.12 (quoting Suka, 79 Hawaii at

299, 901 P.2d at 1278).29       Thus, consistent with our prior

decision in Grindles, 70 Haw. at 534, 777 P.2d at 1192, the

error in this case--which consisted of a violation of three

fundamental constitutional rights--is structural and therefore

requires vacatur of the defendant’s conviction and remand of the

case for a new trial.30

                            IV.     CONCLUSION

            The circuit court erred when it restricted Loher in

deciding whether and when in the course of presenting his

defense he should take the stand, thereby violating his

constitutional privilege against self-incrimination, his

constitutional right to the assistance of counsel, and his right



(. . .continued)

constitutional rights that is “easy to identify” and “easy for the government
to prevent.” Strickland, 466 U.S. at 692 (reasoning that prejudice is
presumed in actual or constructive denials of counsel and “various kinds of
state interference with counsel’s assistance” in part because such violations
are “easy for the government to prevent”); see also People v. Mitchell, 560
N.W.2d 600, 605 (Mich. 1997) (describing this presumption of prejudice as a
“prophylactic approach”).
      29
            Therefore, to the extent that the ICA in prior decisions has
applied harmless error analysis to violations of the principles set forth in
Grindles, 70 Haw. 528, 777 P.2d 1187, these decisions are overruled. See
Kido, 102 Hawaii at 378-79, 76 P.3d at 621-22; State v. Sale, 110 Hawaii 386,
397-98, 133 P.3d 815, 826-27 (App. 2006); Loher III, 118 Hawaii at 533 n.6,
193 P.3d at 449 n.6; Loher IV, 2011 WL 2132828, at *7-9.
      30
            Because we conclude that the error in this case is structural and
therefore not subject to harmless error review, we do not address the State’s
contention that the error was harmless beyond a reasonable doubt.




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to due process of law.     Under the Hawaii Constitution, harmless

error analysis does not apply to the circuit court’s error.

Based on the foregoing, the circuit court’s July 18, 2001

Judgment is vacated, and the case is remanded for a new trial.

Peter C. Wolff, Jr., and              /s/ Paula A. Nakayama
Craig W. Jerome                       /s/ Sabrina S. McKenna
for appellant
                                      /s/ Richard W. Pollack
Brian R. Vincent
for appellee                          /s/ Michael D. Wilson
                                      /s/ Edwin C. Nacino




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