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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0000833
                                                              29-JUN-2017
                                                              09:26 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                           KEVIN PAUL KIM,
                   Petitioner/Defendant-Appellant.


                            SCWC-14-0000833

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-14-0000833; CR. NO. 12-1-0363)

                              JUNE 29, 2017

         NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ., WITH
              RECKTENWALD, C.J., CONCURRING SEPARATELY

                OPINION OF THE COURT BY POLLACK, J.

           This case concerns a challenge by Kevin Paul Kim

regarding the validity of his waiver of the right to testify at

trial.   Kim also contends that the trial court’s warnings to him
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during trial intimidated him and influenced his decision not to

testify.   We hold that the record does not support a conclusion

that Kim’s waiver of the right to testify was voluntarily,

intelligently, and knowingly made.         Thus, we need not resolve

whether the trial court’s statements influenced Kim’s decision

not to testify, but in light of Kim’s contention we provide

guidance on this issue.

                                 I. BACKGROUND

                              A. General Overview

            On March 5, 2012, the State filed a complaint against

Kevin Paul Kim in the Circuit Court of the First Circuit

(circuit court), alleging the following four counts: count 1,

burglary in the first degree, in violation of Hawaii Revised

Statutes (HRS) § 708-810(1)(c);1 count 2, terroristic threatening

in the second degree, in violation of HRS § 707-717;2 count 3,

assault in the third degree, in violation of HRS § 707-

      1
            A person commits the offense of burglary in the first
            degree if the person intentionally enters or remains
            unlawfully in a building, with intent to commit therein a
            crime against a person or against property rights, and: . .
            . [t]he person recklessly disregards a risk that the
            building is the dwelling of another, and the building is
            such a dwelling.

HRS § 708-810(1)(c) (1993).
      2
            “A person commits the offense of terroristic threatening in the
second degree if the person commits terroristic threatening other than as
provided in section 707-716.” HRS § 707-717(1) (1993).


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712(1)(a);3 and count 4, criminal property damage in the fourth

degree, in violation of HRS § 708-823.4         The allegations in

counts 1, 2, and 3 concerned an interaction between Kim and the

complaining witness on February 23, 2012.            Count 4 involved an

incident alleged to have occurred on February 21, 2012.

            A jury trial took place in February 2014, nearly two

years after the occurrence of the incidents in this case.5

                  B. Advisement at Beginning of Trial

            On the first day of trial, the circuit court discussed

the right to testify with Kim.        Kim indicated that he had not

yet made up his mind about whether he wanted to testify:

                  THE COURT: Mr. Kim -- our panel is not here -- you
            have a constitutional right, Mr. Kim, to testify in your
            own defense at the trial which we’re about to begin.

                  Now, you should talk with your lawyer and anybody
            else you want to talk with about this decision to testify,
            but this must be your decision. And if you decide you want
            to testify, nobody can stop you from testifying. If you
            decide to testify, the prosecution will be given a chance
            to question you.

                  You also have a constitutional right not to testify
            but rather to remain silent. Again, talk with whomever you
            wish to talk with, of course including your lawyer, about
            this decision, but this decision must be yours. And if you

      3
            “A person commits the offense of assault in the third degree if
the person: . . . [i]ntentionally, knowingly, or recklessly causes bodily
injury to another person . . . .” HRS § 707-712(1)(a) (1993).
      4
            “A person commits the offense of criminal property damage in the
fourth degree if by means other than fire, the person intentionally or
knowingly damages the property of another without the other’s consent.” HRS
§ 708-823 (1993 & Supp. 2006).
      5
            The Honorable Karen S.S. Ahn presided.


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          decide you don’t want to testify nobody, including your
          only lawyer, can force you to testify.

                If you decide to testify I will instruct the jury
          that it cannot hold your silence against you when it
          decides your case. Whatever your decision is by the end of
          trial I am going to briefly question you and the only
          objective is to make sure that you understand all of these
          rights and that your decision, whatever it is, was your
          decision, okay, you understand?

                THE DEFENDANT: Kind of, yeah.

                THE COURT: Well, do you have any questions?

                THE DEFENDANT: No, not really.   I haven’t made my
          mind up yet.

                THE COURT: That’s fine. And well if you have any
          questions, now is the time to ask because it’s very
          important that you understand these two rights that nobody
          can force you to do what you don’t want to do. And that if
          you decide to testify, the prosecution will be given a
          chance to question you. And if you don’t testify, you
          decide you don’t want to testify, I’m going to instruct the
          jury that it cannot hold your silence against you because
          that is your right, okay?

                THE DEFENDANT: Yes.

                THE COURT: So I want you to understand all of this.
          Do you have any questions about anything?

                THE DEFENDANT: Oh, I’ve got tons of questions.

                [DEFENSE COUNSEL]: I’ll address them, Your Honor.

                THE COURT: Okay. Do you have any questions about
          what you and I have just talked about?

                THE DEFENDANT: No, Your Honor.

                THE COURT: Okay.   Do you understand what you and I
          have talked about?

                THE DEFENDANT: Yes.

          The State’s evidence consisted of testimony from three

investigating Honolulu Police Officers; testimony of the

complaining witness, Daniel Lewis; and photographs of Lewis’s

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home and his injuries after the incident.         Lewis testified at

trial that he was friends with Kim and Kim’s former girlfriend,

Jennifer Jimenez.    At the time of the two incidents, Jimenez was

living with Lewis at his home because Kim had broken up with

Jimenez two weeks earlier.      Lewis testified that, late in the

evening on February 21, 2012, the tires of his vehicle had been

cut “on [the] sidewalls so they couldn’t be repaired.”            From his

bedroom window, Lewis saw Kim bend down near his car tires and

then walk around to the other side of the car.

           Most of Lewis’s testimony, however, was regarding the

incident on the morning of February 23, 2012.          Lewis testified

that Kim came to his home and first attempted to force his entry

through the back door, which is a sliding glass door that was

partially open but secured by a wooden dowel.          According to

Lewis, Kim stuck his arm through the door and made “glancing

blows” to his shoulder and head, preventing him from closing the

door.   Lewis testified that he then instructed Kim to go to the

front door where he opened the door to let Kim enter to stop Kim

from damaging the structure.      Lewis had not told the police that

he had allowed Kim to enter through the front door.

           Lewis testified that, when he opened the door to Kim,

Kim attacked him with a large stick, jabbing him in his

midsection, and knocking him off his feet.         According to Lewis,
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he attempted to prevent Kim from hitting him by holding on to

the stick and that Kim also punched and kicked him.           Lewis

explained that Jimenez eventually physically broke them up by

grabbing hold of Kim and guiding him toward the driveway to

leave.   Lewis testified that he and Kim were yelling obscenities

at each other, he then verbally challenged Kim, and Kim attacked

Lewis again.   Jimenez again broke them up, and Jimenez and Kim

proceeded to leave.

           Lewis acknowledged that he was under probationary

supervision, and he also referenced his intimate relationship

with Jimenez and indicated that, at the time of the incident, he

wanted Jimenez to be his girlfriend.        Lewis stated that he

attempted to and desired to withdraw his complaint before the

trial.

           An investigating officer testified that she attempted

to contact Jimenez, who was present when the incident occurred

on February 23, 2012.     However, the officer did not make contact

with Jimenez and was unable to get a statement from her.            The

officer who responded to Lewis’s call to the police testified

that he believed he questioned Lewis’s neighbors.           But, he was

unable to locate a witness on the cul-de-sac where Lewis’s home

is located who had seen or heard screaming or banging on a side

of a house.
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               C. Warning to Kim After Jury Selection

          Following jury selection on the first day of trial,

the circuit court warned Kim to “use a poker face” and to not

smile and shake his head at certain questions:

                THE COURT: Counsel and defendant are present, our
          jury has left the courtroom.

                Mr. Kim, you need to use a poker face.   No clapping
          at the end of the selection of the jury.

                THE DEFENDANT: It’s very emotional.   I understand.

                THE COURT: No smiling and shaking your head at
          certain questions. I mean, you know, the jury is watching
          you. And you may think that this is a positive thing for
          you. But you don’t know, they may be looking at it and
          thinking -- coming to negative conclusions and you don’t
          want that, okay. So I’m going to require that everybody
          use a poker face, that’s real important in these cases.
          And what happens at counsel table is not evidence, all
          right?

       D. Warning to Kim During Cross-Examination of Lewis

          The following day, during cross-examination of Lewis,

defense counsel sought to impeach Lewis with a prior

inconsistent statement regarding Kim’s purpose in coming to

Lewis’s home on February 23, 2012.        Previously, Lewis told an

investigating officer that he felt threatened by Kim and that

Kim was attempting to enter the house to “get at” Jimenez.

Lewis testified at trial, however, that he initially did not

think that Kim would attack him and that Kim did not mean to

harm Jimenez but only to “retrieve her.”         During this line of

questioning, the court asked both counsel to approach the bench;


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defense counsel was instructed to tell Kim to “stop making

faces”:

                THE COURT: You’re going to have to tell your client
          to stop making faces. He’s doing things like that where
          I’m going to – I’m going to say something in front of the
          jury.

                . . .

                [DEFENSE COUNSEL]: He’s a very emotional man.

                THE COURT: There’s something wrong with him.

                [DEFENSE COUNSEL]: He’s upset.

                THE COURT: No, people are upset, but they, you know,
          they don’t do this. You tell him I’m going to tell him as
          soon as the jury leaves if he does that again I’m going to
          say it in front of the jury.

          Defense counsel continued questioning Lewis regarding

the incident and asked Lewis whether he had mentioned earlier in

his testimony that Kim made a fist with the hand that he stuck

through the door; Lewis confirmed that was his testimony.

Defense counsel then proceeded to question Lewis regarding a

preexisting injury that caused the index fingers on Kim’s hands

to be different in size.      After the prosecution made an

objection, the court excused Lewis and the jury, and the court

immediately spoke to Kim regarding his behavior.

                THE COURT: . . .

                Mr. Kim.

                . . .

                THE COURT: You can not [sic] be making faces in front
          of the jury, shaking your head or something. That is


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      inappropriate. Defendants do not act that way, most of
      them know better and I warned you yesterday.

            THE DEFENDANT: Yes.

            THE COURT: You’re doing it again today. After I --
      some part of the testimony by Mr. Lewis you said you put up
      your fingers and tried to get your lawyer’s attention.

            THE DEFENDANT: Yes, ma’am, I did that.

            THE COURT: I think what you may have been trying to
      imply is that it’s so wrong I need to tell [Defense
      Counsel].

            THE DEFENDANT: Yes, that’s it.   I don't know.

            . . .

            THE COURT: But you can not [sic] be trying to
      communicate to the jury that this is all ridiculous. As
      they were filing out you were holding your two hands palm
      down so that the jury could see them and I will not
      tolerate that.

            THE DEFENDANT: Okay.

            THE COURT: What is wrong?

            THE DEFENDANT: Nothing is wrong.

            THE COURT: It strikes me that something is wrong
      because you can’t follow instructions.

            THE DEFENDANT: Your Honor, I’m not trying to
      disrespect you at all.

            THE COURT: We’re trying to get a fair trial here. I
      don’t know what happened, it’s up to the jury to decide.

            THE DEFENDANT: Right.

            THE COURT: But your play acting I think is what I
      would really call it over there at counsel’s table is
      totally inappropriate. And you may think not so that you
      want to be acquitted, fine, I don’t blame you, but you
      cannot do this. You have to – there’s the proper
      administration of justice, we’re doing a trial, it’s up to
      the jury to decide on the evidence, not on the shaking of
      your head over there, you’re holding up your two hands so
      they can see it as they file out. That is, I mean, I think
      I am very close to I think being able to eject you from
      this courtroom.

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            THE DEFENDANT: It’s very hard to be here, Your Honor.
      I am very excited when he says something that’s genuine.

            THE COURT: Well, genuine from your point of view?

            THE DEFENDANT: Yes.

            THE COURT: You’re the one who’s on probation. You’re
      the one accused of this crime. You’re the one looking at
      five years in jail.

            THE DEFENDANT: Yes, ma’am.

            THE COURT: I would just be quiet and let the jury
      decide.

            THE DEFENDANT: Yes, ma’am.

            . . .

            THE COURT: We’re going to try this case fairly.

            THE DEFENDANT: Thank you.

            THE COURT: With or without you.

            THE DEFENDANT: Yes, ma’am, I’m all about fairness,
      ma’am, Your Honor.

            THE COURT: That’s hard to believe watching your
      antics.

            THE DEFENDANT: I’m not trying to sway them or act,
      it’s all genuine.

            THE COURT: Why would anyone hold up their hands if so
      they could see this?

            THE DEFENDANT: No, I don’t know.

            THE COURT: Oh, no, Mr. Kim, don’t lie to me, I was
      watching you. You were standing at the edge of the table
      facing the filing jurors and you were holding your hands
      out in front of your stomach in the air with palms down,
      fingers out, I saw that. Do not try to tell me your hands
      were on the table, that’s a lie.

            THE DEFENDANT: Yes, ma’am, it’s close to the table.

            THE COURT: They were not close to the table, they
      were in the air?

            THE DEFENDANT: Yes, yes.

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                THE COURT: Do not lie to me, Mr. Kim, that would be
          very silly.

                  THE DEFENDANT: That’s it, last thing I want to do is
          lie.

                  THE COURT: That wouldn’t be smart at all, right,
          okay?

                  THE DEFENDANT: Yes, Judge.

                  THE COURT: Please use your brains.

                  THE DEFENDANT: Yes, ma’am, yes, ma’am.

                  THE COURT: I think your [sic] being obstructive.

                  THE DEFENDANT: I’m trying my best, I’ll do better.

                  THE COURT: Well --

                  THE DEFENDANT: This is really important to me.

                THE COURT: It’s important for a lot of reasons, and
          your [sic] one of them. And we’re trying to get you a fair
          trial. We’re trying to give the State a fair trial. We’re
          trying to let the jury decide appropriately on the evidence
          that they believe, whatever that is, all right.

The prosecution placed its objection on the record, stating that

Kim had put his index fingers out side-by-side as a way of

demonstrating to Lewis and any other potential onlookers--

including the jury--that his right index finger is shorter than

his left index finger.      Defense counsel then informed the court

that, at a later point, he was going to request permission for

Kim to show his fingers to the jury.           The court indicated that

it did not think that would be a problem, but stated that Kim

“can’t do that as he’s sitting there.”          The exchange continued

as follows:


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            [DEFENSE COUNSEL]: Just so Mr. Kim is clear, if
      there’s any further shaking of the heads, the Court is
      going to admonish him in front of the jury.

            THE COURT: I’m considering that.    I’m also
      considering ejecting him out.

            THE DEFENDANT: And the trial continues without me?

            THE COURT: Yes.

            [DEFENSE COUNSEL]: We would.

            THE COURT: I don’t want to do that, that’s the last
      resort, but the law says you can if somebody is just being
      obstructive. Okay, are we clear?

            THE DEFENDANT: Yeah, we’re clear.

            THE COURT: All right, you have any questions?

            . . .

            [DEFENSE COUNSEL]: This is the first time he’s been
      in trial. I instructed him about procedures and again it’s
      an emotional time for him, it’s been two years and he has -
      -

            . . .

            THE COURT: I don’t want to hear anything more about
      the emotion, all right. You’re a grown man, I would think
      you’re able to control your emotions or something, I would
      assume that. You could talk to your lawyer all you want.
      You can take notes. I’ll give you all the time to talk to
      him that you need. But there will be no more smiling,
      shaking one’s head, kind of rolling one’s eyes, holding up
      fingers, holding up hands to show the jury, that’s
      incredibly -- well, it’s really inappropriate.

            THE DEFENDANT: I’m sorry.   I didn’t realize.




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                               E. Tachibana Colloquy

               After the State rested its case, Kim was permitted to

approach the jury box.6          Kim showed the jury his hands facing

down; he also pointed his right index finger and his left index

finger for the jury to compare.            Further, Kim held out his hands

with his palms facing up, and he made two fists for the jury to

see.       Following this demonstration, there was a lunch recess.

               After the lunch recess, the court asked defense

counsel whether Mr. Kim had made a decision with respect to

testifying:

                     THE COURT: Okay, let’s go back on the record.
               Counsel and the defendant are present, but not our jury.

                     [Defense counsel], has your client made a decision?

               [DEFENSE COUNSEL]: Yes, Your Honor. I’ve reviewed with Mr.
               Kim the pros and cons of testifying, and he is electing not
               to testify and it’s his decision.

               BY THE COURT:

                     Q.    Okay. Mr. Kim, as you and I talked about at
               start of the trial, you have a constitutional right to
               testify in your own defense. And you should talk with your
               lawyer and anybody else you may want to talk with, but the
               decision to testify is yours and yours alone. And if you
               decide you want to testify, nobody can stop you from
               testifying, including your own lawyer. If you decide to
               testify, the prosecution will be given a chance to question
               you.

                            You also have a constitutional right not to
               testify.   You have a right to remain silent. Again, talk

       6
            The apparent purpose of Kim’s presentation of his hands to the
jury was to impeach Lewis’s testimony that Kim made a fist with his hands.
Defense counsel later argued in closing argument that a preexisting injury to
Kim’s right index finger prevented him from bending it to form a fist.


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            with whomever you want to talk with, but this decision must
            be yours and yours alone. If you decide you don’t want to
            testify, nobody can force you to testify. If you decide
            not to testify, I instruct the jury that it cannot hold
            your silence against you in deciding your case. Have you
            understood all of that?

                  A.    Yes, ma’am.

                  Q.    Okay. Any questions about anything related to
            that or anything else?

                  A.    I think I’m finally starting to get it here.

                  Q.    Okay.   So do you have any questions?

                  A.    Not really.

                  Q.    All right. And what is your decision as to
            whether you want to testify or not which is your decision
            alone?

                  A.    Well, in your words I want to but I can’t, I
            don’t think I can, so I’m not going to.

                  Q.    Well, you know, as I say, it’s your decision,
            it’s your case, and it’s you who has to make the decision.

                  A.    I choose not to.

                  THE COURT: Okay. I think from what I’ve seen and
            heard, Mr. Kim, he looks very cognizant and alert and I
            believe he understands his right to testify and his right
            not to testify and that this is his decision, and he’s
            voluntarily, knowingly and intelligently decided to give up
            that right.

The defense then rested without presenting any testimonial

evidence.

            The jury found Kim guilty of criminal trespassing in

the first degree, terroristic threatening in the second degree,

and assault in the third degree.           By special interrogatory, the

jury indicated that the prosecution proved beyond a reasonable

doubt that the fight or scuffle was not entered into by mutual

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consent.   And, with regard to count 4, criminal property damage

in the fourth degree, the jury found that Kim was not guilty.

Kim was sentenced to one year in jail for each conviction, with

the terms to run concurrently.       Kim appealed to the Intermediate

Court of Appeals (ICA) from the Judgment of Conviction and

Sentence entered by the circuit court on April 30, 2014.

                          II. ICA PROCEEDINGS

           In his opening brief, Kim argued that the circuit

court influenced his decision not to testify by intimidating him

throughout the entire trial.      Kim contended that the circuit

court threatened to admonish him in front of the jury and to

eject him from the courtroom; he asserted it “seemed apparent”

that he “wanted to be heard and testify,” but that the circuit

court “swayed” him from testifying.

           Kim also argued that the circuit court did not engage

in a true colloquy with him to ascertain his understanding of

his Tachibana rights and that this failure resulted in “a

failure to obtain the on-the-record waiver required by

Tachibana.”   Kim noted that the circuit court did not advise or

assure him of his right to testify during the exchange in which

the circuit court admonished him for making faces and trying to

communicate to the jury.      Kim asserted that it is unknowable



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whether his testimony could have established reasonable doubt

that he committed the charged offenses.

          In its answering brief, the State asserted that the

circuit court conducted the required Tachibana colloquy and pre-

trial advisement.    The State contended that the circuit court

addressed Kim’s right to testify and not to testify and

explained what those rights entailed and what they meant.            The

State also noted that, although Kim was provided an opportunity

to ask questions, he did not have any questions for the court.

The State argued that Kim overlooks that assessing whether he

knowingly, intelligently, and voluntarily waived his right to

testify requires looking at the totality of the facts and

circumstances of the particular case.        The State maintained that

nothing in the record showed that Kim did not understand his

rights as explained to him by the court.         And, the State further

noted that, on appellate review, the circuit court’s assessment

of the situation and the capabilities of the defendant have to

be given some weight.

          Additionally, the State argued that, even assuming the

court’s colloquy was deficient, the error was harmless because

Kim presented no evidence at trial, so there was no

contradictory evidence to the State’s case.          The State further

contended that while Lewis was extensively cross-examined and
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there may have been inconsistencies, the inconsistencies were

not so material such that they took away from the essential

nature of Kim’s conduct.

          With regard to Kim’s assertion that the circuit court

intimidated him, the State noted that Kim did not specify how

the court influenced his decision not to testify.           The State

argued that there was nothing improper about the court warning

Kim that he could lose his right to be present at trial if he

continued his disruptive behavior.

          In a summary disposition order, the ICA concluded that

the circuit court adequately advised Kim of his rights and

obtained a valid waiver of his right to testify.           The ICA

reasoned that the circuit court fully advised Kim of the five

rights required by the Tachibana colloquy.         The ICA noted that,

after engaging in a discussion with Kim, the circuit court

clearly stated that Kim looked “very cognizant and alert” and

that he understood the Tachibana colloquy and its implications.

          With regard to Kim’s argument that the circuit court

intimidated him throughout trial, thus influencing his decision

not to testify, the ICA concluded that the record was

insufficient to support a determination that the circuit court’s

warnings were “sufficiently intimidating” as to affect Kim’s

decision not to testify.      The ICA reasoned that a trial court is
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well within its discretion to warn a defendant that he or she

could lose the right to be present at trial, if the defendant’s

disruptive behavior persists after the warning.

                        III. STANDARD OF REVIEW

          The validity of a criminal defendant’s waiver of the

right to testify is a question of constitutional law reviewed by

this court under the right/wrong standard.         See State v. Gomez-

Lobato, 130 Hawaiʻi 465, 468-69, 312 P.3d 897, 900-01 (2013)

(“The validity of a criminal defendant’s waiver of his or her

right to a jury trial presents a question of state and federal

constitutional law. . . . [W]e review questions of

constitutional law under the right/wrong standard.”).

                             IV. DISCUSSION

          Hawaiʻi law has historically protected both the right

to testify and the right not to testify.         State v. Monteil, 134

Hawaiʻi 361, 369, 341 P.3d 567, 575 (2014).         The right to testify

is guaranteed by the Fifth and Sixth Amendments to the United

States Constitution; article I, sections 5, 10, and 14 of the

Hawaiʻi Constitution; and HRS § 801-2 (1993).         State v. Pomroy,

132 Hawaiʻi 85, 91, 319 P.3d 1093, 1099 (2014).          The right not to

testify is guaranteed by the Fifth Amendment and the Hawaiʻi




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Constitution’s parallel guarantee under article I, section 10.

Monteil, 134 Hawaiʻi at 369, 341 P.3d at 575.

          In Tachibana v. State, this court held that, “in order

to protect the right to testify under the Hawaiʻi Constitution,

trial courts must advise criminal defendants of their right to

testify and must obtain an on-the-record waiver of that right in

every case in which the defendant does not testify.”           79 Hawaiʻi

226, 236, 900 P.2d 1293, 1303 (1995).        “In addition to requiring

an ‘ultimate colloquy,’ Tachibana strongly recommended trial

courts conduct a prior-to-trial advisement to inform defendants

of their right to testify and the right not to testify.”

Monteil, 134 Hawaiʻi at 370, 341 P.3d at 576 (quoting Tachibana,

79 Hawaiʻi at 237 n.9, 900 P.2d at 1304 n.9).         Thus, trial courts

are charged with a “‘serious and weighty responsibility’” of

ensuring that the waiver of the right to testify is a knowing

and intelligent decision, id. at 371, 341 P.3d at 577 (quoting

Tachibana, 79 Hawaiʻi at 233, 900 P.2d at 1300), and it is the

trial court’s duty to establish a record sufficient to

“effectively settle the right-to-testify issues in the case.”

Pomroy, 132 Hawaiʻi at 93 n.7, 319 P.3d at 1101 n.7 (citing State

v. Han, 130 Hawaiʻi 83, 91, 306 P.3d 128, 136 (2013)).




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 A. The Record Is Insufficient For Appellate Determination That
                      The Waiver Was Valid.

          This court has emphasized the importance of engaging

in a “true colloquy” with the defendant, one that consists of an

“‘oral exchange’ in which the judge ascertains the defendant’s

understanding of the proceedings and of the defendant’s rights.”

Pomroy, 132 Hawaiʻi at 93, 319 P.3d at 1101 (quoting Han, 130

Hawaiʻi at 90, 306 P.3d at 135).         “The failure to engage in a

true exchange to ascertain the defendant’s understanding of the

individual rights comprising the Tachibana colloquy results in

the failure to ensure that [the defendant] understood his [or

her] rights [and] amounts to a failure to obtain the on-the-

record waiver required by Tachibana.”         Id., 319 P.3d at 1101

(first and third alterations in original) (quoting Han, 130

Hawaiʻi at 91, 306 P.3d at 136).

          In this case, the record is insufficient to support a

determination that Kim’s waiver of his right to testify was

voluntarily, intelligently, and knowingly made.          Although the

circuit court advised Kim of his right to testify or not to

testify, the court did not engage in the requisite exchange to

ascertain Kim’s understanding of his rights.          After advising Kim

of his rights to testify and not to testify, the court asked Kim

his decision regarding testifying, and Kim responded in a manner

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that indicated that he did not adequately understand his

constitutional rights:

                Q.    All right. And what is your decision as to
          whether you want to testify or not which is your decision
          alone?

                A.    Well, in your words I want to but I can’t, I
          don’t think I can, so I’m not going to.

                Q.    Well, you know, as I say, it’s your decision,
          it’s your case, and it’s you who has to make the decision.

                A.    I choose not to.

                THE COURT: Okay. I think from what I’ve seen and
          heard, Mr. Kim, he looks very cognizant and alert and I
          believe he understands his right to testify and his right
          not to testify and that this is his decision, and he’s
          voluntarily, knowingly and intelligently decided to give up
          that right.

(Emphasis added.)    When Kim stated, “in your words I want to but

I can’t, I don’t think I can, so I’m not going to,” it raised

serious questions as to whether Kim truly understood his right

to testify or not to testify.       It was incumbent on the circuit

court at this point to question Kim further: (1) to determine

why Kim believed he could not testify, even though he indicated

that he wanted to testify; (2) to clarify any misunderstanding

that Kim had regarding his trial rights; and (3) to establish a

record demonstrating Kim’s understanding of his right to testify

following the court’s clarification.        The court’s response,

“it’s your decision, it’s your case, and it’s you who has to

make the decision,” did not address what Kim had said.            Although

Kim indicated that he was electing not to testify because he did
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not think he could, the court merely repeated what it had

earlier stated--that it was Kim’s decision whether to testify.

             Consequently, the record is silent as to why Kim

believed that he could not testify despite his apparent

willingness to do so.     Because the court only reiterated that it

was Kim’s decision whether to testify, and Kim responded, “I

choose not to,” his choice may very well have been influenced or

dictated by his belief that he could not testify based on his

understanding that he did not think he could.          Finally, Kim

explained that he had come to his belief that he could not

testify as a result of statements the court made; Kim stated,

“[I]n your words I want to but I can’t.”         Again, the record

lacks any inquiry by the court as to what were the court’s words

to which Kim was referring, what led to Kim’s confusion, and

what needed to be explained to him in order to address his

confusion.

             The circuit court’s description of its own assessment

of Kim as “cognizant and alert” is not dispositive.           “We are

tasked with scrutinizing the language used by both the court and

the defendant to assess whether a defendant knowingly,

intelligently, and voluntarily waived his or her right to

testify.”    Pomroy, 132 Hawaiʻi at 93 n.7, 319 P.3d at 1101 n.7.

While the circuit court’s observation of Kim may be helpful on
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review, we cannot defer to the circuit court’s “assessment of

[Kim’s] understanding whenever the express language on the

record leaves us with any doubt about the validity of the

colloquy and/or [Kim’s] waiver.”          Id., 319 P.3d at 1101 n.7.

Here, Kim’s response to the court that he was choosing not to

testify based upon his reliance on the circuit court’s earlier

statements raises serious concerns as to the extent to which Kim

understood the right to testify.7         Therefore, without further

questioning by the circuit court, the record is insufficient to

support a determination that Kim’s waiver of the right to

testify was knowingly, intelligently, and voluntarily made.




      7
            The exchange between the court and Kim regarding his behavior
during the trial suggests that circumstances existed that required the court
to use extra care in ensuring that Kim understood his rights. It is noted
that in circumstances where the court has reason to question the defendant’s
understanding, it may be necessary for a trial court to ask additional
follow-up questions to confirm the defendant’s understanding. See State v.
Phua, 135 Hawaiʻi 504, 514, 353 P.3d 1046, 1056 (2015) (providing that
additional questioning may be necessary to confirm a defendant’s
understanding of the court’s warnings of the risks of waiving counsel and the
disadvantages of self-representation). For example, circumstances requiring
additional questioning may exist where there is a language barrier between
the defendant and the court. See State v. Krstoth, 138 Hawaiʻi 268, 276, 378
P.3d 984, 992 (2016) (noting that a language barrier may be a salient fact
that puts a court on notice that waiver by the defendant may be less than
knowing and intelligent); State v. Gomez-Lobato, 130 Hawaiʻi 465, 472, 312
P.3d 897, 904 (2013) (concluding that in light of the language barrier
between the defendant and court, the defendant’s affirmative answers to the
judge’s questions did not establish that he understood he was waiving his
right to a jury trial); Phua, 135 Hawaiʻi at 514-15, 353 P.3d at 1056-57
(same). In this case, the circuit court specifically stated to defense
counsel regarding Kim, “There’s something wrong with him.”


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      B. Whether The Circuit Court Intimidated Kim Need Not Be
                     Determined By This Court.

           Kim also contends that the trial court intimidated him

into not testifying.      Because we conclude that the record is

insufficient to support a determination that Kim’s right to

testify was knowingly, intelligently, and voluntarily waived, it

is not necessary to resolve whether the trial court influenced

Kim’s decision not to testify.        However, given the exchange that

took place between Kim and the circuit court, we provide

guidance on this matter.

           The United States Supreme Court has declared, “It is

essential to the proper administration of criminal justice that

dignity, order, and decorum be the hallmarks of all court

proceedings in our country.”       Illinois v. Allen, 397 U.S. 337,

343 (1970); State v. Castro, 69 Haw. 633, 650, 756 P.2d 1033,

1045 (1988).    Thus, a judge should use the powers of the court

to maintain order in judicial proceedings to prevent

distractions and disruptions in a trial.8

           In conducting judicial proceedings, trial judges may

be confronted with “disruptive, contumacious, [and] stubbornly

     8
            “A trial judge should maintain order and decorum in judicial
proceedings. The trial judge has the obligation to use his or her judicial
power to prevent distractions from and disruptions of the trial.” Standards
for Criminal Justice: Special Functions of the Trial Judge § 6-3.5(a) (Am.
Bar Ass’n 2000).


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defiant defendants.”       Castro, 69 Haw. at 650, 756 P.2d at 1045

(alteration in original) (quoting Allen, 397 U.S. at 343).

Under such circumstances, we have stated that trial judges are

vested with “sufficient discretion to meet the circumstances of

each case.”     Id., 756 P.2d at 1045 (quoting Allen, 397 U.S. at

343).    A trial judge may remove a “particularly obstreperous and

disruptive defendant” from the courtroom where the defendant’s

behavior is of “‘an extreme and aggravated nature’” to justify

removal.    Id., 756 P.2d at 1045 (quoting Allen, 397 U.S. at 343-

44, 346); see also Standards for Criminal Justice: Special

Functions of the Trial Judge § 6-3.8 (Am. Bar Ass’n 2000)

[hereinafter ABA Standards for Trial Judges] (“A defendant may

be removed from the courtroom during trial when the defendant’s

conduct is so disruptive that the trial cannot proceed in an

orderly manner.”).

            At the same time, a “trial judge has the

responsibility for safeguarding . . . the rights of the

accused.”     ABA Standards for Trial Judges § 6-1.1(a).           Trial

judges “should remain sensitive to the various . . . interests .

. . involved in the criminal justice system,” and “[o]f utmost

importance, . . . are the constitutional rights of the

defendant.”     ABA Standards for Trial Judges § 6-1.1(c) cmt. at

17.   At times, the duties of protecting the constitutional
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rights of the defendant and maintaining the order and decorum of

the proceedings may be in tension.        In such circumstances, the

court must be cautious in exercising its authority to maintain

order and decorum, and the action taken by the court should be

proportional to the perceived disruption.         See Allen, 397 U.S.

at 343 (“No one formula for maintaining the appropriate

courtroom atmosphere will be best in all situations.”).

             In this case, the court informed Kim in three

instances that it was considering removing him from the

courtroom.    Certainly, Kim’s actions of apparently trying to

communicate to the jury from counsel table that his right hand

could not form a fist and trying to convey his thoughts through

facial expressions provided the basis for intervention by the

court.   However, the warning to Kim that the court was very

close to ejecting him from the courtroom appears to have been

premature.    “Public confidence in the trial process requires

that removal of a defendant be limited to cases urgently

demanding that action be taken[.] . . .”         ABA Standards for

Trial Judges § 6-3.8 cmt. at 66.         A defendant charged with a

criminal offense has a right to be present at “each critical

stage of the criminal proceeding.”        Onaka v. Onaka, 112 Hawaiʻi

374, 380, 146 P.3d 89, 95 (2006) (citing Rushen v. Spain, 464

U.S. 114, 117 (1983)).     This right is “of no less than
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constitutional magnitude, and is founded upon the Confrontation

and Due Process clauses of both the United States and Hawaiʻi

Constitutions.”     State v. Walsh, 125 Hawaiʻi 271, 285, 260 P.3d

350, 364 (2011) (quoting State v. Okumura, 58 Haw. 425, 427, 570

P.2d 848, 851 (1977)).      The right of presence is “scarcely less

important . . . than the right of trial itself.”            State v.

Kaulia, 128 Hawaiʻi 479, 492, 291 P.3d 377, 390 (2013) (quoting

Diaz v. United States, 223 U.S. 442, 455 (1912)).

            On the present record, Kim’s behavior had not risen to

“‘an extreme and aggravated’” level such that his trial could

not be carried on with him present.9         Castro, 69 Haw. at 650, 756

P.2d at 1045 (quoting Allen, 397 U.S. at 346).           While a court

does not have to wait for conduct to reach an egregious nature

before issuing a warning, the stated consequences of improper

behavior should be proportional to the defendant’s conduct.                 See

id. at 650-53, 756 P.2d at 1045-47; see also ABA Standards for

Trial Judges § 6-3.5 cmt. at 57 (“Normally, the judge should use

the least severe measures available to maintain order and


      9
            “[A] defendant can lose his right to be present at trial if,
after he has been warned by the judge that he will be removed if he continues
his disruptive behavior, he nevertheless insists on conducting himself in a
manner so disorderly, disruptive, and disrespectful of the court that his
trial cannot be carried on with him in the courtroom.” Allen, 397 U.S. at
343.



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decorum in the courtroom.”).       A court should be cognizant that

overstating the sanction for the behavior involved may risk

influencing the defendant’s exercise of his or her

constitutional trial rights.10       See ABA Standards for Trial

Judges § 6-1.4 cmt. at 22 (“The judge should remain aware that

he or she is constantly being observed, and must always be

attentive to the proceedings and to the appearance of his or her

own actions.”).

            Additionally, the circuit court advised defense

counsel at the bench that, if Kim did not stop making faces, he

would be reprimanded in front of the jury, and defense counsel

repeated the court’s caveat in Kim’s presence.11           While the

circuit court sought to preserve the dignity of the proceedings

and ensure that both sides received a fair trial, the court’s

indication that it would reprimand Kim or consider reprimanding

Kim in the presence of the jury is generally disfavored.             If it

is necessary for a judge to comment upon the conduct of the


      10
            This may be particularly true when the circumstances indicate
that the defendant may be more vulnerable to influence by the court or the
defendant lacks experience with the requirements of a court proceeding.
      11
            This warning to admonish Kim in front of the jury did not concern
instructing the jury to disregard the conduct of Kim that the court
considered inappropriate. Immediately after completing its warning to Kim,
the court reconvened the jury and instructed the jury that it may only
consider the sworn testimony of witnesses and any exhibits that were in
evidence.


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defendant or others, “the judge should do so outside the

presence of the jury, if possible.”         ABA Standards for Trial

Judges § 6-3.5.     In addition, Standard 6-3.5 of the Standards

for Criminal Justice: Special Functions of the Trial Judge

provides that, in commenting upon the conduct of trial

participants, the court should “limit[] comments and rulings to

what is reasonably required for the orderly progress of the

trial.”    Id.; see also People v. Johnson, 993 N.E.2d 1, 24 (Ill.

App. Ct. 2012) (quoting People v. Eckert, 551 N.E.2d 820, 825

(Ill. App. Ct. 1990)) (noting that the trial judge’s comments

toward defense witness and defense counsel outside the presence

of the jury were not “reasonably required for the underlying

progress of the trial”).

            As we noted recently, “[a] judge should be courteous,

respectful and civil to lawyers, parties, . . . and all other

participants in the legal process.”         State v. Barrios, 139

Hawaiʻi 321, 339 n.12, 389 P.3d 916, 934 n.12 (2016) (alteration

in original) (quoting Principles of Professionalism for Hawaiʻi

Judges Principle 1).12      “The conduct of the judge sets the tone



      12
            See also Hawaiʻi Revised Code of Judicial Conduct Rule 2.8(b)
(2009) (“A judge shall be patient, . . . and courteous to litigants, . . .
and others with whom the judge deals in an official capacity . . . .”); ABA
Standards for Trial Judges § 6-3.4 cmt. at 55 (stating that the judge “has

                                                             (continued . . .)
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of the proceedings.”       ABA Standards for Trial Judges § 6-3.4

cmt. at 55.     Hence, the judge may have to exercise “extreme

forbearance” and “self-control,” particularly in criminal cases,

where proceedings are often stressful.          Id.   In that sense, a

judge should not become involved in a personal conflict with

anyone in the courtroom,13 as it “tends . . . to undermine

judicial authority.”       ABA Standards for Trial Judges § 6-3.4.

            The need for judicial restraint in the exercise of

judicial power is heightened by the possibility that the court’s

words or conduct may be misunderstood by a party in the

proceeding.14       A judge should “be particularly careful by his or

her demeanor not to convey unintended messages . . . to the

participants in the trial process.”         ABA Standards for Trial

Judges § 6-1.4 cmt. at 22.       For example, with regard to the

right to testify, there may be circumstances where, in light of


(. . . continued)

the obligation to be patient with and courteous to all participants in the
process”).
      13
            In this case, the circuit court repeatedly told Kim not to lie;
asked Kim to be smart; reminded Kim that he was on probation, that he was the
accused, and that he was the one looking at imprisonment; and stated that it
did not want to hear any further statements about emotion, since Kim is a
grown man and thus should be able to control such emotion.
      14
            Kim may have misunderstood some of the court’s statements. In
response to the court’s question of whether Kim wanted to testify, Kim
stated, “Well, in your words I want to but I can’t, I don’t think I can, so
I’m not going to.”


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the interactions between the court and the defendant during

trial, the voluntariness of the defendant’s waiver may be

implicated.    See Tachibana, 79 Hawaiʻi at 236 n.7, 900 P.2d at

1303 n.7 (noting that, “[i]n conducting the colloquy, the trial

court must be careful not to influence the defendant’s decision

whether or not to testify”).       Consequently, in the interests of

the proper administration of criminal justice, a court should

exercise its authority in a restrained and dignified manner

while, at the same time, preserving order and decorum in

judicial proceedings.      ABA Standards for Trial Judges § 6-3.5;

Johnson, 993 N.E.2d at 24.

                               V. CONCLUSION

            The record in this case is insufficient to support a

determination that Kim’s waiver of the right to testify was

knowingly, intelligently, and voluntarily made.           Kim’s response

to the circuit court during the ultimate Tachibana colloquy

indicated that he did not understand his right to testify, and

the court did not engage in an exchange that adequately

established, on the record, Kim’s understanding of that right.

This error was not harmless beyond a reasonable doubt,15 given


      15
            “Once a violation of the constitutional right to testify is
established, the conviction must be vacated unless the State can prove that
the violation was harmless beyond a reasonable doubt.” Han, 130 Hawaiʻi at

                                                             (continued . . .)
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that Lewis’s testimony was not entirely consistent and was not

corroborated.

            Accordingly, the ICA Judgment on Appeal and the

circuit court Judgment of Conviction and Sentence are vacated,

and the case is remanded to the circuit court for further

proceedings.

Tae W. Kim                             /s/ Paula A. Nakayama
for petitioner
                                       /s/ Sabrina S. McKenna

                                       /s/ Richard W. Pollack

                                       /s/ Michael D. Wilson




(. . . continued)

93, 306 P.3d at 138 (quoting Tachibana, 79 Hawaiʻi at 240, 900 P.2d at 1307).
Under the harmless beyond a reasonable doubt standard, “[t]he relevant
question . . . is whether there is a reasonable possibility that error might
have contributed to [the] conviction.” Id., 306 P.3d at 138 (quoting State
v. Schnabel, 127 Hawaiʻi 432, 450, 279 P.3d 1237, 1255 (2012)).


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