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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000666
                                                              27-JAN-2014
                                                              09:27 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

     KAOLINO RICHARD BAKER, Petitioner/Defendant-Appellant.


                             SCWC-11-0000666

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-11-0000666; FC-CR NO. 10-1-0329K)

                            JANUARY 27, 2014

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

             OPINION OF THE COURT BY RECKTENWALD, C.J.

           Kaolino Richard Baker (Baker) was charged with one

count of Abuse of Family or Household Member in relation to an

incident involving his former girlfriend.         During a pre-trial

hearing, Baker, represented by a deputy public defender, stated

that he had executed a “Waiver of Jury Trial” form.            On the form,

Baker provided his initials next to all of the relevant
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paragraphs, except the paragraph stating that he was entering the

waiver of his own free will and that no promises or threats had

been made to him in order to induce his waiver of his right to a

jury trial.   During a brief exchange, the family court asked

Baker several questions, none of which addressed the

voluntariness of his waiver.

           Following a bench trial, Baker was convicted of the

charged offense.    Baker appealed to the Intermediate Court of

Appeals (ICA) and argued, inter alia, that the family court erred

in failing to ensure that he had “fully” waived his right to a

jury trial.   The ICA, however, affirmed his conviction and

determined that under the totality of the circumstances, Baker

validly waived his right to a jury trial.

           In his application for writ of certiorari, Baker raises

the following questions: (1) whether he validly waived his right

to a jury trial; (2) whether the family court erred in

considering a written police report not admitted into evidence in

determining his guilt; (3) whether the family court erred in

considering the same police report during sentencing; and (4)

whether the ICA erred in suggesting that Baker seek relief

pursuant to Rule 40 of the Hawai#i Rules of Penal Procedure

(HRPP) with respect to the family court’s purported consideration

of the police report.     Based on the record before us, we conclude

that the family court failed to ensure that Baker’s waiver of his

right to a jury trial was voluntary.        We therefore vacate both

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the ICA’s judgment and the family court’s judgment and remand the

case for a new trial.       Given this disposition, we do not address

Baker’s arguments relating to the police report, and the ICA’s

suggestion that Baker seek relief pursuant to HRPP Rule 40.

                               I.   Background

             The following factual background is taken from the

record on appeal.

A.     Family court proceedings

             Baker was charged with Abuse of Family or Household

Member, in violation of Hawai#i Revised Statutes (HRS) § 709-

906(1).1    At a February 23, 2011 Entry of Plea hearing, Baker,

represented by a deputy public defender (DPD), pled not guilty.2

The DPD then stated that Baker had executed a “Waiver of Jury

Trial” form.     The form provided as follows:3

       1
             HRS § 709-906(1) (Supp. 2010) provides:

             It shall be unlawful for any person, singly or in
             concert, to physically abuse a family or household
             member or to refuse compliance with the lawful order
             of a police officer under subsection (4). The police,
             in investigating any complaint of abuse of a family or
             household member, upon request, may transport the
             abused person to a hospital or safe shelter.

             For the purposes of this section, “family or household
             member” means spouses or reciprocal beneficiaries,
             former spouses or reciprocal beneficiaries, persons
             who have a child in common, parents, children, persons
             related by consanguinity, and persons jointly residing
             or formerly residing in the same dwelling unit.
       2
             The Honorable Andrew Wilson presided over the Entry of Plea
hearing.
       3
            As it appears in the record, the first page of the Waiver of Jury
Trial form is truncated on the right side, such that words or portions of
words at the right edge of paragraphs 2 and 3 are missing and cannot be seen.
                                                                (continued...)

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            1.      I waive my right to a jury trial in the
                    following charge(s):
                                      AFHM[4]

            PLEASE PLACE YOUR INITIALS IN THE SPACES PROVIDED IF
            YOU UNDERSTAND AND AGREE WITH THE FOLLOWING STATEMENTS

            2.      ____ I understand that I have the
                    constitutional right to a jury trial.
                    Furthermore, I unde[rstand] that a jury trial is
                    a trial in the Circuit Court before a judge and
                    a jury and that I can partic[ipate] in the
                    process of selecting a jury of twelve (12)
                    citizens from the Third Circuit. This jury
                    w[ould hear] the evidence in my case and then
                    decide if I am guilty or not guilty. Finally I
                    understand [in] order for me to be convicted by
                    a jury, their vote must be unanimous.

            3.      ____ I know that if I give up my   right to a jury
                    trial, the trial will be held in   this Court
                    be[fore a] judge who alone would   decide if I am
                    guilty or not guilty. I request    that my case be
                    tried [before a] judge.

            . . .

            4b.     ____ I am satisfied with my attorney, and am
                    entering this waiver with his her advice.

            5.      ____ I know that the punishment cannot be
                    increased merely because I want a jury trial.

            6.      ____ I am entering this waiver of my own free
                    will after careful consideration. No promises
                    or threats have been made to me to induce me to
                    waive my right to a jury trial.[5]



            Baker’s initials appear in the spaces next to

paragraphs 2, 3, 4b, and 5, but do not appear in the space next


      3
       (...continued)
The portions of paragraphs 2 and 3 that cannot be seen are set forth in
brackets above. The words and portions of words included in the brackets are
taken from Baker’s application. Baker does not argue that the form as
executed was missing these words or portions of words.
      4
            “AFHM,” which was handwritten, apparently refers to abuse of
family or household member.
      5
            Paragraph 4a was directed towards pro se defendants. Although
Baker initialed next to this paragraph, it appears to have been subsequently
lined through.

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to paragraph 6.    Baker signed his name below paragraph 6.            Below

Baker’s signature, the form included the following language:
                               CERTIFICATE OF COUNSEL

                 As counsel for defendant and as an officer of
           the Court, I certify that I have read and explained
           fully the foregoing, that I believe that the defendant
           understands the document in its entirety, that the
           statements contained therein are in conformity with my
           understanding of the defendant’s position, that I
           believe that the defendant’s waiver is made
           voluntarily and with intelligent understanding of the
           nature of the charge and possible consequences, and
           that the defendant signed this form in my presence.

           Baker’s counsel signed below this paragraph.             During

the entry of plea hearing, the following exchange occurred:
           THE COURT:   You’re Kaolino Baker?

           MR. BAKER:   Yes.

           THE COURT:   I’m looking at a document, and showing it
                        to you, entitled “Waiver of Jury Trial.”
                        It’s two pages. Is that your signature on
                        the back?

           MR. BAKER:   Yes.

           THE COURT:   And you signed this on February 23, 2011?

           MR. BAKER:   Yes.

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

           MR. BAKER:   No.

           THE COURT:   In the last 24 hours have you had any
                        alcohol or any drugs or medicine?

           MR. BAKER:   No.

           THE COURT:   Is your mind clear?

           MR. BAKER:   Yes.

           THE COURT:   You speak and understand the English
                        language?

           MR. BAKER:   Yes.

           THE COURT:   Okay. Do you have –- you’ve gone over
                        this with your lawyer so far?


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             MR. BAKER:   Yes.

             THE COURT:   Okay. I’m going to hand this back to you
                          and have you sign this, that you
                          acknowledge that we went over this in open
                          court and you know what you’re doing.
                          Okay?

                          The Court will order you to return here on
                          March 23rd at 8:30 a.m. for pretrial
                          conference.

             [DPD]:       Thank you.

             Baker again signed the form below the following

language: “I acknowledge that . . . Judge A. Wilson questioned me

personally in open court to make sure that I knew what I was

doing and understood this form before I signed it.”

             The family court held a bench trial on June 8, 2011,

and August 10, 2011,6 at the conclusion of which the family court

determined that the State proved beyond a reasonable doubt that

Baker committed the offense of Abuse of Family or Household

Member.    Accordingly, the family court entered its Judgment,

Guilty Conviction and Sentence finding Baker guilty, and

sentencing him to two years of probation.7            Baker timely filed a

notice of appeal.

B.     ICA Appeal

             In his opening brief, Baker argued, inter alia, that



       6
             The Honorable Joseph P. Florendo, Jr., presided.
      7
            A special term of Baker’s probation required him to serve 30 days
in jail, 25 of which were suspended for a period of two years, provided that
Baker: (1) remained arrest and conviction free; (2) complied with counseling
orders; (3) remained drug and alcohol free; and (4) completed court ordered
assessments or counseling. Baker also received one day of credit for time
served.

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the family court plainly erred in failing to ensure that he had

“fully” waived his right to a jury trial.         Specifically, Baker

argued that he did not “knowingly and voluntarily” waive his

right to a jury trial.      Baker noted that the waiver form “was not

adequately filled out,” and that the family court “failed to

conduct a colloquy to ensure that Baker knowingly and voluntarily

waived his right to a jury trial.”

            In its answering brief, the State argued that Baker’s

waiver of his right to a jury trial was sufficient because he

executed a written waiver and stated in a colloquy that he

understood what he was doing after discussing it with his

attorney.

            The ICA issued a memorandum opinion affirming the

judgment of the family court.       The ICA held that, under the

totality of the circumstances, Baker validly waived his right to

a jury trial.    The ICA noted that Baker had submitted the waiver

of jury trial form, had been questioned by the family court, and

that nothing in the record suggested that Baker had been

pressured or coerced into waiving his right to a jury trial.                The

ICA also rejected Baker’s other arguments on appeal.            On July 16,

2013, the ICA entered its judgment on appeal, and, on

September 16, 2013, Baker timely filed his application for writ

of certiorari.    On September 25, 2013, the State timely filed its

response.



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                        II.    Standard of Review

                 The validity of a criminal defendant’s waiver of
           his or her right to a jury trial presents a question
           of state and federal constitutional law. . . . We
           answer questions of constitutional law by exercising
           our own independent constitutional judgment based on
           the facts of the case. Thus, we review questions of
           constitutional law under the right/wrong standard.

State v. Friedman, 93 Hawai#i 63, 67, 996 P.2d 268, 272 (2000)

(citations and quotation marks omitted).

                              III.   Discussion

           In his application, Baker argues that the family court

did not adequately ensure that his waiver of his right to a jury

trial was made voluntarily, knowingly, and intelligently.               Baker

asserts that the waiver form was not properly executed, and that

the family court’s colloquy was “woefully deficient.”               For the

reasons set forth below, we conclude that the family court failed

to ensure that Baker’s waiver of his right to a jury trial was

voluntary and that Baker is therefore entitled to a new trial.

           “Trial by jury is considered fundamental to our system

of criminal justice.”     State v. Pokini, 55 Haw. 640, 656, 526

P.2d 94, 108 (1974).     Accordingly, “[t]rial by jury is the normal

and, with occasional exceptions, the preferable mode of disposing

of issues of fact in criminal cases above the grade of petty

offenses.”   Patton v. United States, 281 U.S. 276, 312 (1930),

abrogated in part on other grounds, Williams v. Florida, 399 U.S.

78 (1970); see also United States v. Goodwin, 457 U.S. 368, 383

n.18 (1982).   In general, a criminal defendant is entitled to a


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trial by jury when the potential penalty for the charged crime is

imprisonment for six months or more.8         See HRS § 806-60 (1993).

To help ensure that a defendant is aware of his right to a jury

trial, HRPP Rule 5(b)(1) provides that, during arraignment, “the

court shall, in appropriate cases, inform the defendant of the

right to jury trial in the circuit court and that the defendant

may elect to be tried without a jury in the district court.”

Here, Baker had a right to a jury trial because a person

convicted of abuse of a family or household member, a

misdemeanor, may be imprisoned for up to one year.            See HRS §§

709-906(5) and 706-663.

            As HRPP Rule 5(b)(1) makes clear, however, a defendant

is entitled to waive the right to be tried by a jury.             See State

v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993); HRPP Rule

5(b)(3) (“In appropriate cases, the defendant shall be tried by

jury in the circuit court unless the defendant waives in writing

or orally in open court the right to trial by jury.”).             “A waiver


      8
            In certain cases, this court has recognized the right to a jury
trial under the Hawai#i Constitution for particular offenses even though the
maximum authorized terms of imprisonment do not exceed six months. See, e.g.,
State v. Nakata, 76 Hawai#i 360, 374, 878 P.2d 699, 713 (1994). In this
regard, if the maximum term of imprisonment for a particular offense does not
exceed thirty days, it is presumptively a petty offense to which the right to
a jury trial does not attach. State v. Lindsey, 77 Hawai#i 162, 165, 883 P.2d
83, 86 (1994). This presumption can only be overcome in extraordinary cases,
when consideration of the treatment of the offense at common law, the gravity
of the offense, and the authorized penalty for the offense, “unequivocally
demonstrates that society demands that persons charged with the offense at
issue be afforded the right to a jury trial.” Id. If the maximum authorized
term of imprisonment for an offense is more than thirty days but not more than
180 days, no presumption applies, and the three factors set forth above must
be considered to determine whether the right to a jury trial attaches. Id. at
86 n.5, 883 P.2d at 165 n.5.

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is the knowing, intelligent, and voluntary relinquishment of a

known right.”    Friedman, 93 Hawai#i at 69, 996 P.2d at 274.           This

court reviews “the validity of a defendant’s waiver of his/her

right to a jury trial under the totality of the circumstances

surrounding the case, taking into account the defendant’s

background, experience, and conduct.”         Id. at 70, 996 P.2d at

275; State v. Sprattling, 99 Hawai#i 312, 321, 55 P.3d 276, 285

(2002).

           A defendant’s waiver of the right to a jury trial must

also be approved by the trial court.        See HRPP Rule 23(a) (“Cases

required to be tried by jury shall be so tried unless the

defendant waives a jury trial with the approval of the court.”

(emphasis added)).     “The granting of such approval is a ‘serious

and weighty responsibility[.]’”       United States v. Saadya, 750

F.2d 1419, 1421 (9th Cir. 1985) (quoting Johnson v. Zerbst, 304

U.S. 458, 465 (1938)); see also State v. Chong Hung Han, 130

Hawai#i 83, 92, 306 P.3d 128, 137 (2013) (quoting United States

v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997)).             As the

Supreme Court has explained,
           the duty of the trial court in [this] regard is not to
           be discharged as a mere matter of rote, but with sound
           and advised discretion, with an eye to avoid
           unreasonable or undue departures from that mode of
           trial or from any of the essential elements thereof,
           and with a caution increasing in degree as the
           offenses dealt with increase in gravity.

Patton, 281 U.S. at 312-13.       The failure to obtain a valid waiver

constitutes reversible error.       Sprattling, 99 Hawai#i at 321, 55


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P.3d at 285.

           Consistent with this “serious and weighty

responsibility,” the trial court has an obligation to ensure,

through an appropriate oral colloquy in court, that the waiver

was knowingly, intelligently, and voluntarily given.            See State

v. Gomez-Lobato, 130 Hawai#i 465, ___, 312 P.3d 897, 901 (2013);

cf. Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d 1293 (1995)

(requiring on-the-record waiver of defendant’s right to testify).

In other words, while the defendant may execute a written waiver

form, the court should also engage in an appropriate oral

colloquy with the defendant to establish that the waiver was

knowing, intelligent, and voluntary.        See Gomez-Lobato, 130

Hawai#i at ___, 312 P.3d at 901; Ibuos, 75 Haw. at 121, 857 P.2d

at 578 (“The necessity for colloquy between the court and a

defendant is especially apparent in light of the importance we

place on the personal nature of a defendant’s right to a jury

trial.”); Friedman, 93 Hawai#i at 68, 996 P.2d at 273 (advising

trial courts to engage in an oral colloquy to aid in ensuring

voluntary waivers).     The failure to obtain a valid waiver

constitutes reversible error.       Sprattling, 99 Hawai#i at 321, 55

P.3d at 285.

           Generally, “[w]here it appears from the record that a

defendant has voluntarily waived a constitutional right to a jury

trial, the defendant carries the burden of demonstrating by a

preponderance of the evidence that his/her waiver was

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involuntary.”    Friedman, 93 Hawai#i at 69, 996 P.2d at 274;

Ibuos, 75 Haw. at 121, 857 P.2d at 578.          Here, however, the

record does not indicate that the family court considered the

voluntariness of Baker’s waiver.

           Whether Baker’s waiver was voluntary appears to have

been addressed in paragraph six of the waiver form, which

included the following language: “I am entering this waiver of my

own free will after careful consideration.          No promises or

threats have been made to me to induce me to waive my right to a

jury trial.”    Baker signed his initials next to every paragraph

on the waiver form except this one.         The State notes that Baker

signed the waiver form immediately below paragraph 6.               Baker

argues, however, that he overlooked paragraph 6 because it was at

the top of the second page of the waiver form.           In short, the

incomplete waiver form fails to support a finding that Baker’s

waiver was voluntarily given.

           The court’s in-court colloquy is also silent with

respect to voluntariness.       As stated above, during the entry of

plea hearing, the following exchange occurred:
           THE COURT:   You’re Kaolino Baker?

           MR. BAKER:   Yes.

           THE COURT:   I’m looking at a document, and showing it to you,
                        entitled “Waiver of Jury Trial.” It’s two pages.    Is
                        that your signature on the back?

           MR. BAKER:   Yes.

           THE COURT:   And you signed this on February 23, 2011?

           MR. BAKER:   Yes.

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

        MR. BAKER:   No.

        THE COURT:   In the last 24 hours have you had any alcohol or any
                     drugs or medicine?

        MR. BAKER:   No.

        THE COURT:   Is your mind clear?

        MR. BAKER:   Yes.

        THE COURT:   You speak and understand the English language?

        MR. BAKER:   Yes.

        THE COURT:   Okay. Do you have –- you’ve gone over this with your
                     lawyer so far?

        MR. BAKER:   Yes.

        THE COURT:   Okay. I’m going to hand this back to you and have you
                     sign this, that you acknowledge that we went over this
                     in open court and you know what you’re doing. Okay?

                     The Court will order you to return here on March 23rd
                     at 8:30 a.m. for pretrial conference.

        [DPD]:       Thank you.

        The State argues that HRPP Rule 5(b)(3)9 does not


  9
        HRPP Rule 5(b)(3) provides:

        (3) Jury Trial Election. In appropriate cases, the
        defendant shall be tried by jury in the circuit court
        unless the defendant waives in writing or orally in
        open court the right to trial by jury. If the
        defendant does not waive the right to a trial by jury
        at or before the time of entry of a plea of not
        guilty, the court shall commit the defendant to the
        circuit court for trial by jury. Within 7 days after
        the district court’s oral order of commitment

        (i) the district court shall sign its written order of
        commitment,

        (ii) the clerk shall enter the district court’s
        written order, and

        (iii) the clerk shall transmit to the circuit court
        all documents in the proceeding and any bail deposited
        with the district court; provided, however, that if
        trial by jury is waived in the circuit court, the
        proceedings may be remanded to the district court for
        disposition.

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require “that all boxes on any particular form must be checked,”

nor “does the rule require any colloquy.”          As stated above,

however, under HRPP Rule 23(a), a defendant’s waiver of his right

to a jury trial must be approved by the court, and this is a

“serious and weighty responsibility.”         See Saadya, 750 F.2d at

1421.      Moreover, as this court has stated, “[a]lthough [HRPP Rule

23(a)] indicates the waiver may be given by written or oral

consent, the rule does not relieve the court of its obligation to

ensure, through an appropriate oral colloquy in court, that the

waiver was knowingly, intelligently, and voluntarily given.”

Gomez-Lobato, 130 Hawai#i at ___, 312 P.3d at 901.           Here, Baker

failed to sign his initials next to the paragraph addressing

voluntariness on the written waiver form, and none of the court’s

questions were directed towards determining the voluntariness of

Baker’s waiver.      Based on the foregoing, we conclude that the

family court failed to ensure that Baker’s waiver of his right to

a jury trial was voluntary.10

                              IV.   Conclusion

              Accordingly, the ICA erred in holding that Baker’s

waiver of his right to a jury trial was valid.           We therefore




      10
            In light of our ruling that the family court did not ensure that
Baker’s waiver of his right to a jury trial was voluntary, we do not consider
whether the family court’s in-court colloquy was sufficient to establish an
intelligent and knowing waiver of that right.

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vacate the ICA’s July 16, 2013 judgment, and the family court’s

August 10, 2011 judgment, and remand the case for a new trial.

James S. Tabe
                                      /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Paula A. Nakayama
Linda L. Walton
for respondent
                                      /s/ Sabrina S. McKenna

                                      /s/ Richard W. Pollack




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