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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-11-0000089
                                                               04-JAN-2013
                                                               03:08 PM



             IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


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

                                     vs.

           DENNIS KAULIA, Petitioner/Defendant-Appellant.


                             SCWC-11-0000089

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0000089; CR. NO. 3P7-09-01892)

                              January 4, 2013

  RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.

             AMENDED OPINION OF THE COURT BY POLLACK, J.

            Petitioner Dennis Kaulia (Kaulia) was convicted by the

District Court of the Third Circuit (district court) of

committing assault in the third degree in the course of a mutual

affray in violation of Hawai#i Revised Statutes (HRS) § 707-712

(1993).1   We vacate the August 10, 2012 judgment of the

     1
           The district court orally rendered its verdict that Kaulia had
committed the petty misdemeanor offense of assault in the third degree in the
course of a mutual affray. However, the district court’s Judgment of
Conviction and Sentence, entered January 18, 2011, reflected that Kaulia was
convicted of the misdemeanor offense of assault in the third degree. The
                                                             (continued...)
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Intermediate Court of Appeals (ICA) and the district court’s

January 18, 2011 judgment of conviction and remand for a

new trial for the reasons stated herein.

                                        I.

              On January 18, 2008, Kaulia was involved in an

altercation with the complainant in the parking lot of a shopping

center located in Kona, Hawai#i.            The altercation also involved

Kaulia’s son and the complainant’s wife and son.              During the

course of the scuffle, Kaulia shoved the complainant, attempted

to punch him, and “backhanded” him in the mouth.

              On October 22, 2009, Kaulia was charged by the State of

Hawai#i (State) via Amended Complaint2 with the misdemeanor

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

712(1)(a).      Kaulia appeared in district court for arraignment and

demanded a jury trial.        The district court therefore committed


      1
          (...continued)
procedure taken in regard to “amending” the charge is discussed infra, Part
III(B).

              HRS § 707-712 (1993) provides in relevant part as follows:

              (1) A person commits the offense of assault in the    third
              degree if the person:
              (a) Intentionally, knowingly, or recklessly causes    bodily
              injury to another person[.]
              (2) Assault in the third degree is a misdemeanor     unless
              committed in a fight or scuffle entered into by      mutual
              consent, in which case it is a petty misdemeanor.

     2
         The original Complaint, filed September 22, 2009, contained the
incorrect date of the incident giving rise to the charge.

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the case to the Circuit Court of the Third Circuit (circuit

court).

            On November 4, 2009, Kaulia appeared before the circuit

court for Trial Setting.3       Kaulia requested an attorney, and a

public defender appeared for the proceeding.           Kaulia submitted

two documents to the court, one titled “Notice” and the other

titled “Motion For Nolle Prosequi With Prejudice As to All

Counts.”    The “Notice” document stated that Kaulia was a “foreign

national to USA and State of Hawaii as a subject of the Kingdom

of Hawaii.”    It also stated that he was “under medication known

as Oxycontin one of the narcotic medication used to treat his

extreme pain caused by history of neck and back injuries.”              Based

on Kaulia’s statements during the proceeding, the court decided

to interpret the two documents as a motion to dismiss for lack of

jurisdiction.4

            Kaulia also orally informed the court that he was

“under doctor’s care” and visited a doctor in Honolulu once a

month.    The court told him that if his condition was such that he

is “so uncomfortable that you cannot concentrate on this case,”

then he would have to bring in a doctor’s note for a continuance


      3
         The Honorable Elizabeth A. Strance presided over the proceedings in
the circuit court.

      4
         The circuit court did not orally rule on the motion at the hearing
and the record on appeal does not reflect a subsequent ruling on this motion.

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to be granted.    The court continued:

          I think if you are on OxyContin, that’s a pretty strong pain
          medication. And I would not want to have you participating in
          a case while you are under the influence of a strong narcotic.
          And so I need your direction on what your position is so that
          I can . . . set the appropriate hearings.

          At the end of the hearing, the court was concerned that

Kaulia looked “to be in physical pain,” and directed the public

defender, “So I would like to have addressed whether or not

[Kaulia is] able to proceed at this time given the medication

that he’s on.”    The record on appeal does not indicate whether

any steps were taken after the hearing to determine whether

Kaulia was able to proceed.

          Subsequently on March 15, 2010, Kaulia filed a Motion

to Dismiss Complaint (Motion to Dismiss) challenging the court’s

jurisdiction over the case based on the present existence of the

Kingdom of Hawai#i (Kingdom).      At the hearing on the Motion to

Dismiss, the court confirmed that in off-the-record conferences

it had denied Kaulia’s request for an evidentiary hearing to call

witnesses, including one Dr. Keanu Sai, to establish the

existence of the Kingdom.      The court then denied Kaulia’s Motion

to Dismiss.

          On May 21, 2010, the State filed a “Motion to Amend

Complaint and Remand” (Motion to Amend), requesting leave to

amend the sole count of the Amended Complaint from assault in the


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third degree, a misdemeanor offense, to assault in the third

degree in the course of a mutual affray, a petty misdemeanor

offense.    The State attached a document titled “First Amended

Complaint” as an exhibit to the Motion to Amend, which reflected

the proposed amended charge of assault in the third degree in the

course of a mutual affray.       The memorandum in support of the

Motion to Amend stated that pursuant to the State’s “forthcoming

First Amended Complaint,” Kaulia was to be charged with a petty

misdemeanor offense and therefore was not entitled to a jury

trial.   The State consequently moved to remand the case to

district court.

            The circuit court granted the State’s Motion to Amend

and ordered the case to be remanded to district court.              Despite

the court’s order of remand, a First Amended Complaint was never

filed in the district court or circuit court.           The only document

with a title of “First Amended Complaint” appearing in the record

is the copy attached as an exhibit to the State’s motion.

            As ordered by the circuit court, Kaulia appeared for

his bench trial before the district court on September 10, 2010.5

He was represented by a court-appointed attorney.            The bailiff

had called the case and the prosecutor had just introduced


     5
         The Honorable Joseph P. Florendo, Jr., presided over the
proceedings.

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herself when Kaulia interrupted.       He and the district court judge

then engaged in a lengthy exchange in which Kaulia appeared to

contest the court’s jurisdiction.        After some time the court

informed Kaulia that he was out of order.         Kaulia responded by

informing the court that he was under medication:

          MR. KAULIA: I am also under medication, and you guys know
          this.
          THE COURT: You’re under medication?
          MR. KAULIA: I put liens and class-action suit. Not just me,
          but other sovereign groups.
          THE COURT: Okay, would you hold your comments for a while, Mr.
          Kaulia? Please stop.

The court did not return to the issue of medication.            Rather, the

court asked the prosecutor and defense counsel whether they were

ready to proceed.    They responded affirmatively.         However, Kaulia

interrupted again just after the court instructed the State to

call its first witness.

          Kaulia then announced his intention to leave the

courtroom, and the court warned that the trial would be held

without him:

          THE COURT: Okay. Call your first witness, Ms. Walton.
          MR. KAULIA: You did not answer my question.
          MS. WALTON [PROSECUTOR]: Are we –-
          MR. KAULIA: This is my tutu’s land. I told you –-
          THE COURT: Mr. Kaulia, please have a seat.    Please have a
          seat.
          MR. KAULIA: I’m walking out.
          THE COURT: You’re gonna walk out?     Okay, the record will
          reflect –-
          MR. KAULIA: You have no authority on me.
          THE COURT: The record will reflect that Mr. Kaulia –-
          MR. KAULIA: -- and a lien on you.


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          THE COURT: -- is walking out towards the door. If you leave,
          we’re going to continue this trial without you –-
          MR. KAULIA: You threw me out of the court the last time my
          wife came.
          THE COURT: I’m not gonna throw you out –-
          MR. KAULIA: Write this down. I want the transcripts.
          THE COURT: If you want to walk out –-
          MR. KAULIA: You guys fraudulently abuse me and my name.
           Yeah? I can walk out and you can do nothing.
          THE COURT: True, I won’t do anything.
          MR. KAULIA: I know you won’t.
          THE COURT: I’ll continue the –-
          MR. KAULIA: And then I’ll probably just take away that lien
          and the class-action –-
          THE COURT: I’ll hold this trial without you –-
          MR. KAULIA: -- you and the rest of the judges here. Because
          your head of state is Governor Linda Lingle. She’s a fraud,
          a puppet, connected to the corporation, who is Barack Obama.
          And who runs Barack Obama? I know. You
          know. The admiralty court is right in between.

(Emphases added).

          The exchange continued until Kaulia eventually walked

out of the courtroom:

          THE COURT: Excuse me, Mr. Kaulia. Please be quiet. If you
          want to walk out, you can walk out. We’re going to go ahead
          and have this trial without you.
          MR. KAULIA: And then what, I get a bench warrant, like my
          cousin Lindsey Lindsey?
          THE COURT: I’m not going to issue a –-
          MR. KAULIA: -- and remanding the man?
          THE COURT: -- but we’ll go ahead and have the trial without
          you.
          MR. KAULIA: Justice will be served. Alright? We have short
          time here in this life.
                On the other side, that bad spirit that I see next to
          you, you gonna end up with him.
          THE COURT: So, Mr. Kaulia, please be quiet.
          MR. KAULIA: I am gone.
          THE COURT: We’ll note that Mr. Kaulia is walking –-
          MR. KAULIA: You have no authority on the sovereign people.
          These flags don’t have authority. This is the flag.
          THE COURT: If you want to be in court, you have to keep in
          order, and I’m going to ask you –-
          MR. KAULIA: I want you to answer me. I’m sick and tired of
          you forcing me here, threatening me, oppressing me. Held me
          under extreme duress.
          THE COURT: Mr. Kaulia, if you don’t stop talking and be quiet,
          I’m going to find you in contempt of court.

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            MR. KAULIA: That’s what happen to Fujino. And you know
            what happened? I won at Ibarra’s court. I didn’t even have
            to go to court. And I have class-action suit –-
            THE COURT: This is the last time I’m going to ask you, Mr.
            Kaulia.
                  We’ll note that Mr. Kaulia has walked out. And pursuant
            to Rule 43, I think we can go ahead without his presence.

(Emphases added).

            After Kaulia departed the courtroom, the prosecutor

immediately requested that Kaulia be arrested for summary

contempt.    Defense counsel objected to the request and to

proceeding without Kaulia.       The court declined to have Kaulia

arrested, but invoked Hawai#i Rules of Penal Procedure (HRPP)

Rule 43 in deciding to proceed with the trial without him.6                 When

defense counsel asked to address the Rule 43 issue, the court

responded, “Well, you might want to try to get your client back


     6
         Rule 43. Presence of the defendant.

              (a) Presence required. The defendant shall be present at
              the arraignment, at the time of the plea, at evidentiary
              pretrial hearings, at every stage of the trial including
              the impaneling of the jury and the return of the verdict,
              and at the imposition of sentence, except as otherwise
              provided by this rule.
              (b) Continued presence not required. The further progress
              of a pretrial evidentiary hearing or of the trial to and
              including the return of the verdict shall not be prevented
              and the defendant shall be considered to have waived the
              right to be present whenever a defendant, initially
              present,
                  (1) is voluntarily absent after the hearing or trial
              has commenced (whether or not the defendant has been
              informed by the court of the obligation to remain during
              the trial); or
                  (2) engages in conduct which is such as to justify
              exclusion from the courtroom.

     HRPP Rule 43 (2008).



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in here, if you want.”     The prosecutor interjected and requested

a recess because she was “concerned about the [identification]

issue if he’s not here.     Identifying the defendant.”         The court

granted the recess.

          After the recess, defense counsel again objected that

Kaulia was constitutionally required to be present for his trial.

The defense argued that Kaulia was not “voluntarily absent”

within the meaning of Rule 43 but was “continuing to assert his

position with regard to lack of jurisdiction.”

          In addition, defense counsel noted that he had spoken

to Kaulia that morning and that he had not been “sure what was

going to transpire.”     The defense reminded the court that Kaulia

had mentioned he was under medication:         “However, on the record

he did indicate that he was under medication, and I don’t know if

that is an issue with regard to his statements.           I’m not saying

that he’s saying it is.     I’m just not sure.”       The court overruled

the objection, reasoning, “Well, he walked out.           If that’s not

being voluntarily absent from the hearing, I don’t know what is.”

          The court then proceeded with the trial and the State

called its first witness, the complainant.         Before the

complainant was sworn in, defense counsel interjected to state

additional bases for his objection to proceeding without Kaulia.



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He objected on the basis that the Sixth Amendment requires

effective assistance of counsel and that without Kaulia present

he would not be able to conduct effective cross-examination.                He

also objected on the ground that Kaulia had not been “advised of

his right to Tachibana before we proceeded, and therefore his

constitutional rights have been adversely affected.”7             The court

overruled the objection, stating, “I think by his actions, he’s

waived his right to receive those admonishments; and he’s, by his

actions, asserted his right to remain silent.”

            The State then proceeded with its case-in-chief.            In

addition to the complainant, the State called the complainant’s

son, the complainant’s wife, and Hawai#i County Police Officer

Joslyn Kabalis (Officer Kabalis) as witnesses.

            The prosecutor approached the identification issue by

asking the complainant, the complainant’s son, and Officer

Kabalis whether they had seen the person who walked out of the

courtroom that morning.       They answered affirmatively.        In this

manner, the prosecutor obtained a court ruling that the record

would reflect the identification of the defendant by the

complainant’s son and Officer Kabalis.


      7
         Defense counsel’s statement regarding Kaulia’s “right to Tachibana”
refers to Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995) (requiring
trial courts to engage the defendant in a colloquy regarding the defendant’s
right to testify).

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           The witnesses testified to the following facts

regarding the altercation that gave rise to Kaulia’s charge.

           The complainant’s son and Kaulia’s son were casual

acquaintances.    The altercation was related to a prior failed

arrangement for the complainant’s son to fix Kaulia’s truck.               The

incident took place in the parking lot of a shopping center

located in Kona, Hawai#i.     The complainant and his son were

sitting in their truck in the parking lot while the complainant’s

wife went to the bank located at the center.          They recognized

Kaulia’s son, who walked in front of the truck while “eyeing”

them.   Kaulia’s son walked to Kaulia’s truck that was parked a

few stalls away and spoke to Kaulia, who was sitting inside.

Kaulia and his son reversed their truck and parked directly

behind the complainant’s vehicle, and they both stepped out.               The

complainant’s son got out of the complainant’s truck, Kaulia and

his son approached, and a scuffle ensued between the three men.

           The complainant testified that at that point, “I got

out [of the truck] and I tried to break ‘em up, and he [Kaulia]

shoved me.   As an automatic reflex, I shoved him back.”           The

complainant claimed that he was trying to tell Kaulia to stop,

but “he kept holding his fist up to me.”         Kaulia then attempted

to punch him but missed.      The complainant responded by punching

Kaulia:   “He threw and I sidestepped him, and I hit him in the

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neck and he went down.”     At the same time, the complainant

slipped on the curb and fell.

            The complainant testified that later during the

incident, Kaulia “backhanded” him in the mouth.           Kaulia then ran

to his truck and appeared to be reaching into the back of the

truck.    The complainant’s son went over and punched Kaulia.

Kaulia and his son then got in their truck and left.

            Officer Kabalis testified that she responded to a call

about the incident and interviewed the complainant and his family

at the scene.    While there, she received a call about a person

waiting at the police station.       She completed her investigation

and returned to the station, where she spoke to Kaulia.            Kaulia

told her that he and his son had been involved in a dispute at

the bank, where they had gone to withdraw money.           As Kaulia’s son

was getting out of their vehicle, he noticed the complainant and

his son sitting in their truck.       When Kaulia’s son returned after

withdrawing money, he told Kaulia that it seemed like the

complainant and his son were trying to “call him out for a

fight.”    Officer Kabalis testified that according to Kaulia, “the

boys got into a fight by mutual agreement.”

            After the State rested, defense counsel stated that he

would like to call Kaulia to testify.        The court responded,

“Well, he’s not here.     Do you want to call him to come to court?”

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Defense counsel declined, reasoning, “Well, this is the trial,

your Honor, and so had Mr. Kaulia been here, I would call him.

But he’s not here, and he was not given a Tachibana instruction.

So, as an officer of the court, I’m required to rest my case.”

            The district court orally rendered its verdict that

Kaulia had committed the offense of assault in the third degree

in the course of a mutual affray, as alleged in the “First

Amended Complaint.”8     The court sentenced Kaulia to a one-year

term of probation, subject to the condition that he serve thirty

days imprisonment.9

            On appeal to the ICA, Kaulia challenged the district

court’s jurisdiction; its violation of his constitutional rights

to due process and confrontation by holding the trial in

abstentia; the circuit court’s preclusion of Dr. Sai’s testimony

in support of Kaulia’s Motion to Dismiss; the sufficiency of the

evidence supporting his conviction; and his sentence to a term of

probation of one year.




      8
         The district court’s Judgment of Conviction and Sentence was entered
on January 18, 2011. The Judgment reflects that Kaulia was convicted of the
misdemeanor offense of assault in the third degree in violation of HRS § 707-
712(1)(a) rather than the petty misdemeanor offense of assault in the third
degree in the course of a mutual affray.

      9
         The court also ordered Kaulia to pay restitution of $425.48 to the
complainant, $130 in fees, and to submit a written letter of apology to the
complainant.

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            The ICA held that Kaulia’s claim of lack of

jurisdiction was without merit because of the territorial

applicability of the state’s criminal jurisdiction, and that the

circuit court did not err in precluding Dr. Sai’s testimony.10

Summary Disposition Order (SDO) at 2-3.          The ICA ruled that the

district court did not violate Kaulia’s constitutional rights to

due process and confrontation by holding the trial in abstentia

because “Kaulia waived those rights by voluntarily walking out of

the courtroom after his case had been called for trial and after

the District Court warned Kaulia that if he left, the trial would

be held in his absence.”       Id. at 3.    Additionally, the ICA held

that there was sufficient evidence to negate Kaulia’s claim of

self-defense.     Id. at 4.

            The ICA affirmed Kaulia’s conviction but vacated the

district court’s Judgment of Conviction and Sentence with respect

to the sentence imposed and remanded the case for re-

sentencing.11    Id.   In his application for writ of certiorari

      10
         The Honorable Craig H. Nakamura, Chief Judge, the Honorable Daniel
R. Foley, and the Honorable Lawrence M. Reifurth, presiding.

     11
          The ICA held that the district court erred in sentencing Kaulia to a
one year term of probation subject to the condition that he serve thirty days
of incarceration. Under HRS § 706-623(1)(d) (Supp. 2010), the maximum
authorized term of probation for a petty misdemeanor conviction was six
months, “provided that up to one year may be imposed upon a finding of good
cause.” Under HRS § 706-624(2)(a) (Supp. 2010), imprisonment not exceeding
five days could be imposed as a condition of probation. The district court
erred by not making the predicate finding of good cause when it imposed a one
                                                             (continued...)

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(Application) to this court, Kaulia argues that the ICA gravely

erred in all respects in its rulings except for its holding on

sentencing.

                                        II.

              Kaulia contends that the courts of the State of Hawai#i

lacked subject matter jurisdiction over his criminal prosecution

because the defense proved the existence of the Hawaiian Kingdom

and the illegitimacy of the State of Hawai#i government.

              Pursuant to HRS § 701-106 (1993),12 “the [S]tate’s

criminal jurisdiction encompasses all areas within the

territorial boundaries of the State of Hawai#i.”               State v. Jim,

105 Hawai#i 319, 330, 97 P.3d 395, 406 (App. 2004).               The State

charged Kaulia based on his conduct in Kona, County and State of

Hawai#i.      Thus Kaulia is subject to the State’s criminal

jurisdiction in this case.


      11
           (...continued)
year term of probation and by exceeding the five day limit on the term of
imprisonment imposed as a condition of probation.

     12
            HRS § 701-106 (1993) provides in relevant part:

              (1) Except as otherwise provided in this section, a person may
              be convicted under the law of this State of an offense
              committed by the person’s own conduct or the conduct of
              another for which the person is legally accountable if:
                 (a) Either the conduct or the result which is an element of
                 the offense occurs within this State[.]
              . . . .
              (5) This State includes the land and water and the air space
              about the land and water with respect to which the State has
              legislative jurisdiction.

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          Kaulia appears to argue that he is immune from the

court’s jurisdiction because of the legitimacy of the Kingdom

government.    In that regard, we reaffirm that “[w]hatever may be

said regarding the lawfulness” of its origins, “the State of

Hawai#i . . . is now, a lawful government.”         State v.

Fergerstrom, 106 Hawai#i 43, 55, 101 P.3d 652, 664 (App. 2004),

aff’d, 106 Hawai#i 41, 101 P.3d 225 (2004).         Individuals claiming

to be citizens of the Kingdom and not of the State are not exempt

from application of the State’s laws.        See id. at 55, 101 P.3d at

664; State v. Lorenzo, 77 Hawai#i 219, 883 P.2d 641 (App. 1994);

State v. French, 77 Hawai#i 222, 883 P.2d 644 (App. 1994);

Nishitani v. Baker, 82 Hawai#i 291, 921 P.2d 1182 (App. 1996);

State v. Lee, 90 Hawai#i 130, 976 P.2d 444 (1999).

          Thus we also reject Kaulia’s argument that the circuit

court erred in precluding Kaulia from calling a witness to

present evidence concerning the existence of the Kingdom in

support of his Motion to Dismiss.

                                   III.

          Kaulia maintains that the district court violated his

rights to due process and confrontation by holding the trial in

his absence.

          “The due process guarantee of the . . . Hawaii

constitution[] serves to protect the right of an accused in a

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criminal case to a fundamentally fair trial.”13             State v.

Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990).               “Central to

the protections of due process is the right to be accorded a

meaningful opportunity to present a complete defense.”                Id.

(internal quotation marks and citations omitted).

                                           A.

             In this case, just before Kaulia exercised his right to

trial, he informed the court that he was taking medication:

             THE COURT:   Okay.  Mr. Kaulia, you’re out of order, so I’m
             going to ask you to keep silent for –-
             MR. KAULIA:   I am also under medication, and you guys know
             this.
             THE COURT: You’re under medication?
             MR. KAULIA: I put liens and class-action suit. Not just me,
             but other sovereign groups.
             THE COURT:  Okay, would you hold your comments for a while,
             Mr. Kaulia? Please stop.
             Is the State ready to proceed?

(Emphases added).

             After Kaulia left the courtroom, his attorney objected

to the court proceeding without Kaulia and again sought to bring

the court’s attention to the issue of Kaulia’s medication.                    The

court overruled the objection without addressing the issue of

Kaulia’s medication:


     13
          H AW . C ONST . art. I, § 5 provides:

             No person shall be deprived of life, liberty or property
             without due process of law, nor be denied the equal protection
             of the laws, nor be denied the enjoyment of the person’s civil
             rights or be discriminated against in the exercise thereof
             because of race, religion, sex or ancestry.

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            [DEFENSE COUNSEL]:      In addition, I did have a brief
            opportunity to speak to Mr. Kaulia this morning.      I wasn’t
            sure what was going to transpire. However, on the record he
            did indicate that he was under medication, and I don’t know if
            that is an issue with regard to his statements.        I’m not
            saying that he’s saying it is. I’m just not sure. So I’ll
            just state that on the record.
            THE COURT:    Well, he walked out.      If that’s not being
            voluntarily absent from the hearing, I don’t know what is. So
            I’ll overrule your objection.

(Emphasis added).

            The district court did not inquire as to the name or

type of medication Kaulia was taking, or establish whether the

medication had any effect on Kaulia’s ability to meaningfully

participate in his trial and present his defense.             From this

record it cannot be determined whether Kaulia was still taking

OxyContin, as he had indicated during the circuit court

proceedings,14 or some other medication.

                                    1.

            When Kaulia informed the district court that he was

taking medication, he was about to exercise his constitutional

right to trial.     In this regard, cases concerning the waiver of

the right to trial through a guilty plea are instructive, as “[a]

defendant who stands trial is likely to be presented with choices

that entail relinquishment of the same rights that are



      14
          As discussed supra Part I, Kaulia informed the circuit court during
the trial setting hearing that he was taking Oxycontin, a “narcotic medication
used to treat his extreme pain caused by [a] history of neck and back
injuries,” and that he visited a doctor in Honolulu once a month.

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relinquished by a defendant who pleads guilty.”             Godinez v.

Moran, 509 U.S. 389, 398 (1993).           The Godinez Court explained,
            [The defendant who stands trial] will ordinarily have to
            decide whether to waive his privilege against compulsory self-
            incrimination by taking the witness stand; if the option is
            available, he may have to decide whether to waive his right to
            trial by jury; and, in consultation with counsel, he may have
            to decide whether to waive his right to confront his accusers
            by declining to cross-examine witnesses for the prosecution.

Id. (internal quotation marks, citations and brackets omitted).

            Additionally, the defendant who stands trial will have

to make several “strategic choices” throughout the proceeding.

Id.   “In consultation with his attorney, he may be called upon to

decide, among other things, whether (and how) to put on a defense

and whether to raise one or more affirmative defenses.”               Id.

Thus, the Court in Godinez concluded that “while the decision to

plead guilty is undeniably a profound one, it is no more

complicated than the sum total of decisions that a defendant may

be called upon to make during the course of a trial.”              Id.

            State and federal courts have required in the context

of guilty pleas that trial courts conduct a sufficient inquiry

into the effect of any medication on the defendant’s capacity to

knowingly and voluntarily enter the plea.15


      15
          “The purpose of the ‘knowing and voluntary’ inquiry . . . is to
determine whether the defendant actually does understand the significance and
consequences of a particular decision and whether the decision is uncoerced.”
Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993) (explaining that by contrast,
the “focus of a competency inquiry is the defendant’s mental capacity; . . .
whether he has the ability to understand the proceedings”).

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            The Utah Supreme Court held that when “the sentencing

court discovers that the defendant has taken psychotropic drugs,

it must meaningfully engage the defendant in order to establish”

that the defendant is entering a plea knowingly and voluntarily.

Oliver v. State, 147 P.3d 410, 414 (Utah 2006).            Concerned with

determining “what a sentencing judge must do to ensure that the

drug ingested by a defendant has not appreciably impaired his or

her power to understand the meaning and consequences of admitting

guilt[,]” the court found that the sentencing court’s “meaningful

engagement” with the defendant would “allow[] the court to make

an informed decision” regarding the defendant’s capacity to enter

a plea.   Id. at 413.

            Although it declined to “mandate specific procedures”

for the inquiry,16 the Oliver court explained that the most

effective means of determining whether any medication has

impaired the defendant’s ability to plead would be by

“interacting with the defendant himself, by asking him questions

concerning his mental state and ability to understand the

procedures, and then weighing both the content of the responses

offered as well as the demeanor and general coherence that can be

gleaned from his responses.”        Id.

      16
          The court recognized that “[i]n some instances, it may be beneficial
for the court to ask specifically about the type and amount of drug consumed,”
but declined to require such an inquiry in every case. Oliver, 147 P.3d at
413.

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          In Oliver, the defendant informed the sentencing court

during its plea colloquy that he was taking “pills to help him

sleep and cope with depression.”         Id. at 411.   The Utah Supreme

Court found that the sentencing court sufficiently inquired into

the defendant’s medication, where “the court asked about the

purpose of the drug, how it affected [the defendant], and whether

he understood the proceedings.”       Id. at 414.      Additionally, the

defendant’s responses were “all coherent, lucid, and directly

responsive . . . .”     Id.

          Similarly, the Ohio Supreme Court stated that

“[a]dditional inquiry is necessary into a defendant’s mental

state once a defendant seeking to enter a guilty plea has stated

that he is under the influence of drugs or medication.”            State v.

Mink, 805 N.E.2d 1064, 1076 (Ohio 2004).         Applying this standard,

the court held that the trial court properly accepted the

defendant’s guilty plea, where the trial court, after learning

that the defendant was taking an anti-depressant medication,

“obtained assurance from [the defendant] . . . that the

medication had no effect on his ability to understand the court’s

proceedings.”   Id. at 1077.

          Federal courts employ similar procedures when the

defendant indicates during a plea colloquy that he or she is



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taking medication.17     In United States v. Cole, the Third Circuit

held that it could not affirm the trial court’s finding that the

defendant was competent to plead guilty due to the trial court’s

“failure to pursue the issue of [the defendant’s] state of mind

through further questioning” once the trial court was informed of

the defendant’s recent drug use during the plea colloquy.              813

F.2d 43, 46 (3d Cir. 1987).

            The First Circuit in United States v. Parra-Ibanez

remanded the case for an evidentiary hearing to determine whether

the defendant’s medication had affected his competency to

voluntarily plead guilty, where the defendant had informed the

trial court that he had recently taken prescription medications.

936 F.2d 588, 594-96, 598 (1st Cir. 1991).          Although the trial

court asked further questions to elicit the defendant’s assurance

that he understood the proceedings, it failed to inquire about

what dosages of the medication the defendant had ingested and

“what effects, if any, such medications might be likely to have

on [defendant’s] clear-headedness.”         Id. at 595-96.     The First

Circuit held, like the Third Circuit, that the judge was


     17
         The courts in these federal cases reviewed whether the trial court’s
plea colloquy complied with Rule 11 of the Federal Rules of Criminal
Procedure, which requires the trial court to “address the defendant personally
in open court and determine that the plea is voluntary” before accepting a
plea of guilty or nolo contendere. F ED . R. C RIM . P. 11(b)(2). Rule 11 does
not specifically require federal courts to inquire about medication.



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obligated to inquire further in that situation.            Id. at 596.      See

also United States v. Damon, 191 F.3d 561, 563-66 (4th Cir. 1999)

(remanded for determination of voluntariness of guilty plea,

where district court inquired about the nature of the drug but

failed to determine whether the medication had any effect on the

defendant’s ability to enter a plea); United States v. Dalman,

994 F.2d 537, 538-39 (8th Cir. 1993) (defendant’s guilty plea

valid where the court inquired whether defendant’s unspecified

medication affected his understanding of the proceedings and

there was no indication in the record that the defendant “was not

fully in possession of his faculties during the proceedings”).

                                    3.

            The focus of the trial court’s inquiry for purposes of

the defendant’s guilty plea is the effect of the medication on

the defendant’s ability to knowingly and voluntarily enter the

plea.18   See Oliver v. State, 147 P.3d 410, 412 (Utah 2006) (“It

is, of course, the drug’s effect and not the mere presence of the


     18
          See Froistad v. State, 641 N.W.2d 86 (N.D. 2002) (court’s inquiry
into defendant’s use of prescription medication was sufficient where court
confirmed that the medication had no effect on defendant’s “thinking
faculties” and there was no indication that defendant was “confused or unaware
of what was taking place during the proceeding”); People v. Williamson, 301
A.D.2d 860 (N.Y. App. Div. 2003) (holding that defendant’s guilty plea was
knowing, voluntary and intelligent, where trial court fully explored
defendant’s use of anti-depressant medication and ascertained that defendant
was not affected by medication); Weeks v. State, 341 S.W.3d 701 (Mo. Ct. App.
2011) (defendant’s guilty plea was valid where defendant was questioned
thoroughly about any effects of defendant’s medications on his ability to
understand the consequences of his pleas).

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drug that matters” for purposes of the defendant’s competency to

plead guilty).    Similarly, given the difficult decisions that a

defendant who stands trial is called upon to make, when the trial

court becomes aware during the course of a trial proceeding that

the defendant has recently ingested medication, the court should

determine the effect of the medication on the defendant’s

participation in the trial.      The best way for the trial court to

determine the effect of any medication on the defendant is to

undertake a “meaningful engagement” with the defendant in order

to allow the court to make an informed decision as to the

defendant’s ability to proceed with trial.         See id. at 413.

          In this case, the district court did not inquire into

the possible effects of any medication on Kaulia.           However, in

light of our resolution of other issues in this case, we need not

determine whether the district court’s failure to inquire

affected Kaulia’s due process right to a fair trial.            In the

event of a retrial following remand, if issues of medication

arise, the court should address such issues in a manner that

enables the court to make an informed determination as to

Kaulia’s ability to meaningfully participate in his trial.

                                    B.

          Kaulia was charged with the misdemeanor offense of

assault in the third degree, which carries a maximum prison term

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of one year.     HRS § 707-712(2); HRS § 706-663 (1993).19           He

therefore had a constitutional and statutory right to a trial by

jury.    HRS § 806-60 (1993) (any defendant charged with a crime

for which the defendant may be imprisoned for six months or more

has the right to trial by jury); State v. Kasprzycki, 64 Haw.

374, 375, 641 P.2d 978, 978-79 (1992) (defendants do not have a

constitutional right to jury trial for “petty” crimes with a

maximum penalty of thirty days imprisonment and a fine).

            Pursuant to HRS § 604-8(a) (Supp. 2010), in any case in

which the defendant has “the right to a trial by jury in the

first instance, the district court, upon demand by the accused

for a trial by jury, shall not exercise jurisdiction over the

case, but shall examine and discharge or commit for trial the

accused as provided by law[.]”

            In this case, Kaulia demanded a jury trial and the

district court therefore committed the case to circuit court.

Subsequently the State filed a motion for leave to amend the sole


    19
           HRS   § 706-663 (1993) provides:

            After consideration of the factors set forth in sections 706-
            606 [factors to be considered in imposing a sentence] and 706-
            621 [factors to be considered in imposing a term of
            probation], the court may sentence a person who has been
            convicted of a misdemeanor or a petty misdemeanor to
            imprisonment for a definite term to be fixed by the court and
            not to exceed one year in the case of a misdemeanor or thirty
            days in the case of a petty misdemeanor.

     (Emphasis added).

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count of the Amended Complaint from a misdemeanor to a petty

misdemeanor and to remand the case to district court.20            The

proposed amendment was reflected in an exhibit titled “First

Amended Complaint,” attached to the motion.           The circuit court

granted the State’s motion, the case was remanded to district

court, and Kaulia was accordingly ordered by the circuit court to

appear in district court.

            However, a “First Amended Complaint” was never filed in

the district court.21     As a result, the Amended Complaint

alleging the misdemeanor charge remained the governing

pleading.22    Thus, Kaulia’s prior demand for a jury trial as to

the misdemeanor charge also remained operative, as Kaulia’s right

to jury trial was extinguished by the State only upon the

condition subsequent of amending the charge to a petty

misdemeanor.    Although the circuit court’s order remanded the

case to the district court, the district court could not properly

     20
         The proposed amended charge of assault in the third degree in the
course of a mutual affray carried a maximum penalty of thirty days
imprisonment. HRS § 706-663. Therefore Kaulia would not have had a right to
jury trial to defend against this charge, and the case could properly have
been tried by the district court.

      21
         The district court’s Judgment reflects the original charge as
“ASSAULT 3, HRS § 707-712(1)(A),” and the final charge as “SAME.”

     22
          HRPP Rule 7(a) (2008) provides that the “charge against a defendant
is an indictment, an information, or a complaint filed in court[.]” (Emphasis
added). HRPP Rule 7(h) (2008) provides, “A complaint may be filed in either
the district court or circuit court; provided that a complaint shall not be
filed initially in the circuit court when it charges . . . only an offense or
offenses other than a felony.”

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proceed with Kaulia’s bench trial unless the First Amended

Complaint was filed, the charge was amended,23 or Kaulia waived

his right to jury trial.       None of these events occurred prior to

Kaulia’s departure from the courtroom.

           Kaulia did not expressly waive his right to jury trial

either in writing or orally in open court.          See HRPP Rule 5(b)(3)

(2008) (“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”).             On the

contrary, Kaulia had demanded his right to jury trial, and his

departure from the courtroom did not operate as an implied waiver

of this right.     See State v. Young, 73 Haw. 217, 220, 830 P.2d

512, 514 (1992) (“waiver of the right to a trial by jury cannot

be presumed by a silent record”); State v. Swain, 61 Haw. 173,

175, 599 P.2d 282, 284 (1979) (per curiam) (holding that defense

counsel indicating they were “ready to go to trial” did not

support the conclusion that the defendant knowingly and

voluntarily waived the right to jury trial).

           Because the charge against Kaulia was not amended to a

petty misdemeanor and Kaulia had demanded his right to jury trial

prior to leaving the courtroom, the district court lacked

     23
         See HRPP Rule 7(f)(1) (2008) (“The court may permit a charge other
than an indictment to be amended at any time before trial commences if
substantial rights of the defendant are not prejudiced.”).

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jurisdiction to proceed to trial.        Kaulia’s conviction for

assault in the third degree in the course of a mutual affray is

accordingly vacated and the case is remanded for a new trial.

                                    C.

          Although the foregoing conclusion requires that

Kaulia’s conviction be vacated, we address Kaulia’s argument that

the district court violated his constitutional rights to due

process and confrontation by holding the trial in abstentia in

the event that similar circumstances occur on remand.

          Kaulia argues that the district “court did not obtain

an intelligent and voluntary waiver of his right to be present”

before he left the courtroom.       He explains that “[t]he court

failed to advise [him] of any of the significant constitutional

rights that he would be waiving if he left the courtroom and the

proceedings were held in his absence, such as his right to

confront his accusers, to assist in his defense and testify.”

          The ICA rejected Kaulia’s argument, holding that the

district court did not violate Kaulia’s rights to due process and

confrontation because “Kaulia waived those rights by voluntarily

walking out of the courtroom after his case had been called for

trial and after the District Court warned Kaulia that if he left,

the trial would be held in his absence.”         SDO at 3.



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                                    1.

             HRPP Rule 43(a) codifies the constitutional requirement

of the defendant’s presence at trial.24         State v. Caraballo, 62

Haw. 309, 320, 615 P.2d 91, 99 (1980).          HRPP Rule 43(b)(1)

provides that a defendant “shall be considered to have waived the

right to be present whenever a defendant, initially present, is

voluntarily absent after the hearing or trial has commenced

(whether or not the defendant has been informed by the court of

the obligation to remain during the trial).”

             At the outset, we note that Rule 43(b)(1) only allows

trials to be held in abstentia where the defendant was present

when the trial commenced but voluntarily absents himself

thereafter.      Assuming, without deciding, that Kaulia’s bench

trial had in fact commenced at the time Kaulia departed the

courtroom,25 when a defendant who is present in the courtroom

      24
           See supra note 6.

     25
          The ICA and district court applied Rule 43(b)(1) without stating at
what point the trial had commenced. At the time Kaulia left the courtroom,
Kaulia had not been advised of his right to testify pursuant to Tachibana v.
State, 79 Hawai#i 226, 237 n.9, 900 P.2d 1293, 1304 n.9 (1995) (colloquy
should be conducted once prior to commencement of trial), the parties had not
given or waived opening statements, and the State’s first witness had not been
called to testify by the prosecutor. Furthermore, the prosecutor requested a
recess immediately after Kaulia departed the courtroom because she was
“concerned about the [identification] issue if [Kaulia is] not here.” After
the recess there was no further discussion of the identification issue but on
direct examination, the prosecutor elicited identifications of the defendant
from the State’s witnesses who stated that they had seen and recognized the
person who walked out of the courtroom that morning.
            Although courts have not definitively established when a non-jury
trial “commences” for purposes of Rule 43, courts have defined commencement as
                                                             (continued...)

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announces an intention to leave, the trial court should, whenever

possible, inform the defendant of the significant constitutional

rights the defendant will be giving up by leaving the courtroom.

              A defendant charged with a criminal offense has a well-

established right to be present at “each critical stage of the

criminal proceeding.”         Onaka v. Onaka, 112 Hawai#i 374, 380, 146

P.3d 89, 95 (2006).         This right is “of no less than

constitutional magnitude, and is founded upon the Confrontation

and Due Process clauses of both the United States and Hawai#i

Constitutions.”      State v. Walsh, 125 Hawai#i 271, 285, 260 P.3d

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

P.2d 848, 851 (1977)) (internal quotation marks omitted).



      25
           (...continued)
the point when some substantive or meaningful event has occurred. See
Commonwealth v. Dowling, 959 A.2d 910, 915 (Pa. 2008) (generally,
“commencement of trial should be marked by a substantive, rather than pro
forma, event,” defined as “when a court has begun to hear motions which have
been reserved for the time of trial; when oral arguments have commenced; or
when some other such substantive first step in the trial has begun”) (internal
quotation marks omitted) (emphasis added); Commonwealth v. Lamonna, 373 A.2d
1355, 1358 (Pa. 1977).
            By this and other measures, Kaulia’s trial may not have commenced
when he left the courtroom, where the only events that had occurred were the
calling of the case, the parties indicating that they were “ready” to proceed,
and the court directing the State to call its first witness. See also HRPP
Rule 24.1(a) (2000) (describing the “conduct” of a trial as the sequence of
presentation of the opening statements, prosecutor’s case in chief, defense’s
case, rebuttal evidence, and closing arguments). But cf. Johnson v. State,
604 S.W.2d 927, 928-29 (Ark. 1980) (without establishing at what point trial
commenced, court held it was not clearly erroneous to hold that bench trial
had “commenced” where the trial court called the case, discovered a pending
motion to suppress evidence, took testimony on the motion, and then recessed).
            However, we need not resolve whether Kaulia’s bench trial had
commenced when he departed the courtroom because the issue was not raised on
appeal to the ICA or in the Application.

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            The right of presence is “scarcely less important . . .

than the right of trial itself.”          Diaz v. United States, 223 U.S.

442, 455 (1912).     The absent defendant is not only waiving the

right to be present during the trial.         The absent defendant is

also waiving the Sixth Amendment right to confront and cross-

examine witnesses and the right to testify in his or her own

defense.    Commonwealth v. Vega, 719 A.2d 227, 230-31 (Pa. 1998).

Furthermore, even if the defendant is represented by counsel who

remains in the courtroom, “any challenge to a defendant’s Sixth

Amendment right to effective counsel is limited since a defendant

who waives his right to be present during trial is unavailable to

aid counsel in his representation, and cannot later claim

counsel’s trial strategy unreasonable.”          Id. at 231.

            Thus when Kaulia announced an intention to leave the

courtroom by saying, “I’m walking out,” this was the factual

equivalent of Kaulia announcing an intention to waive not only

his constitutional right to be present, but also his right to

confront witnesses, his right to testify in his own defense, and

his right to assist his counsel in defending against the

charge.26

            Despite the fact that Kaulia relinquished these

fundamental constitutional rights by leaving the courtroom, when
     26
          After the State rested, Kaulia’s attorney informed the district
court that he would have called Kaulia to testify if Kaulia had been present.

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Kaulia informed the court, “I’m walking out,” and then continued

speaking to the court, the court’s only warning in response was

“If you want to walk out, you can walk out.          We’re going to go

ahead and have this trial without you.”         There is no indication

in the record of whether Kaulia was aware that by leaving the

courtroom, he was effectively giving up his constitutional right

to be present at trial, to testify in his own defense, to

confront the witnesses against him, and to assist his counsel in

presenting his defense.
                                   2.

          Hawai#i courts have consistently recognized that the

best way to ensure a defendant’s constitutional rights are

protected is for the defendant to be informed of the nature of

the right and the consequences of waiving that right.            See

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

recognition has led to the requirement that trial courts in

Hawai#i engage in on-the-record colloquies with defendants when

the waiver of certain fundamental rights are at issue.

Colloquies are required for a defendant’s waiver of the right to

testify (Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293

(1995)), the right to trial by jury (State v. Ibuos, 75 Haw. 118,

857 P.2d 576 (1993)), the right to have guilt proved beyond a

reasonable doubt (i.e. entry of guilty plea) (State v. Vaitogi,

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59 Haw. 592, 585 P.2d 1259 (1978)), and the right to counsel

(State v. Vares, 71 Haw. 617, 801 P.2d 555 (1990) (abrogated on

other grounds by Nichols v. United States, 511 U.S. 738, 742 n.7

(1994)).

            In Tachibana, this court held that in order to protect

the defendant’s constitutional right to testify in his or her own

defense, “trial courts must advise criminal defendants of their

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

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

Hawai#i at 236, 900 P.2d at 1303.

            In reaching this holding, the Tachibana court

acknowledged that there were other approaches to the defendant’s

waiver of the right to testify.         Id. at 233, 900 P.2d at 1300.

In particular, the court rejected the “demand” approach, where “a

defendant who fails to complain about the right to testify during

trial is conclusively presumed to have waived that right.”               Id.

The court recognized that such an approach ignored the “basic

realit[y]” that “[m]any defendants are unaware that they have a

constitutional right to testify” and are incapable of asserting

it.   Id. at 233-34, 900 P.2d at 1300-01 (quotation marks and

citation omitted).

            The court ultimately adopted the colloquy approach as

it would “best protect defendants’ rights while maintaining the

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integrity of the criminal justice system.”         Id. at 234, 900 P.2d

at 1301.   Essentially, the court adopted the colloquy approach

because it recognized that the “basic values of personal dignity

and fairness are enhanced when the defendant is presented with an

opportunity to choose among relevant alternatives.”           Id. at 235,

900 P.2d 1302 (quoting United States v. Martinez, 883 F.2d 750,

766-67 (9th Cir. 1989) (Reinhardt, J., dissenting)).

           This basic principle of informed choice also underlay

this court’s decision in State v. Ibuos, where the court held

that the trial court has a constitutional duty to inform the

defendant of the right to trial by jury in order to ensure a

knowing and voluntary waiver of that right.          75 Haw. 118, 120,

857 P.2d 576, 577 (1993).

           Similarly, trial courts should endeavor to advise the

defendant of the legal consequences of a courtroom departure,

where the defendant announces an intention to leave and the trial

court has the opportunity to address the defendant regarding this

intention.   The defendant’s right to be present at trial is “one

of the most basic rights guaranteed by the Confrontation

Clause[.]”   Cruz v. Commonwealth, 482 S.E.2d 880, 883 (Va. Ct.

App. 1997) (internal citation omitted).         As such, it “must be

carefully safeguarded.”     Id.    The simple practice of the trial

judge identifying the constitutional rights that will be lost by

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leaving the courtroom would ensure that the defendant makes an

informed, personal choice to leave.

                                   3.

          Other state courts, in recognition of the significance

of the defendant’s departure from the courtroom, have required

that in order for a defendant who is present in the courtroom to

validly waive the right to be present at trial, the trial court

must first engage the defendant in a colloquy.

          In Commonwealth v. Vega, 719 A.2d 227 (Pa. 1998), the

defendant was present in the courtroom for a pre-trial conference

when he became frustrated with the court’s refusal to appoint him

new counsel, and he told the court, “You can have a trial without

me,” “I don’t have to be here for nothing like this,” and “You

guys do whatever you want without me.”         Id. at 228-29.     The trial

court responded, “Yes, you don’t have to be present, sir.             So you

are excused from the trial of this case.”         Id. at 229.

          On appeal, the Vega court held that the defendant’s

“purported waiver” of his right to be present was ineffective

because the trial court “conducted no colloquy to advise [the

defendant] of the consequences of waiving his right to be present

during his trial, particularly those rights which the [defendant]




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would forfeit . . . .”27      Id. at 231.    The court explained that

while it would not require any “rote dialogue . . . or mandate

any specific language,” the trial court’s “inquiry must be

calculated to insure a defendant is aware of the dangers and

disadvantages of waiving his right to be present during trial.”

Id. (footnote omitted).      This requirement has been interpreted to

apply only to situations involving “a defendant who is present in

court to expressly waive his right to remain for the proceedings

. . . .”   Commonwealth v. Hill, 737 A.2d 255, 262 n.15 (Pa.

Super. 1999).

           The South Dakota Supreme Court found that the

defendant’s express waiver of his right to be present at trial

was knowing and voluntary where the record was “replete with

lengthy discourse from the defendant about his concern with his

lawyer, the system, and his right to a fair trial,” he was

“clearly able to articulate his concerns to the trial court and

understand his rights,” and the trial court informed him, “You

have a right to participate in this trial . . . you have a right

to confront and cross-examine witnesses, that means you have a

right to be here, you have a right to have a trial . . . .”

State v. Talarico, 661 N.W.2d 11, 19-20 (S.D. 2003).             The

     27
         The defendant challenged the validity of his waiver of the right to
be present under the Sixth Amendment of the United States Constitution. Vega,
719 A.2d at 229-30.

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defendant repeatedly responded “It’s not going to work” and

indicated on the record that he was leaving voluntarily.            Id.

          As stated, the purpose of conducting a colloquy is to

ensure that the defendant is making an informed choice to be

absent from trial.    Vega, 719 A.2d at 230.       While the defendants

in the cases cited were being held in custody at the time of

their trial, the rationale for the colloquy, to ensure that a

defendant is making an informed choice to be absent from trial,

is applicable to all defendants.

                                   4.

          We recognize, however, that Rule 43(b)(1) provides that

a defendant’s voluntary absence after trial has commenced

operates as an effective waiver of the right to be present,

“whether or not the defendant has been informed by the court of

the obligation to remain during the trial.”          See State v.

Caraballo, 62 Haw. 309, 323, 615 P.2d 91, 100 (1980) (“where

defendant has voluntarily absented himself after the trial has

begun, this operates as a waiver of his right to be present and

the trial may continue as if he were present”).           Nevertheless,

when a trial court is informed of a defendant’s intention to

depart from the courtroom, it should seek to advise the defendant

of the constitutional rights the defendant will be giving up by

not being present during the proceeding.

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            Of course, the court’s ability to inform the defendant

will vary depending on the circumstance.28          A non-custodial

defendant may leave the courtroom either without verbalizing an

intention to leave or before the court has the opportunity to

inform the defendant of the constitutional rights that will be

lost.   But when the trial court is aware of the defendant’s

intention to leave the courtroom and has the opportunity to

advise the defendant, the court should inform the defendant of

the constitutional rights that will be forfeited by leaving the

courtroom.    This procedure builds upon the principles of informed

choice and fairness and is supported by a number of weighty

considerations.

            First, the defendant may not understand the full

panoply of rights that will be relinquished by leaving the

courtroom.    See Tachibana v. State, 79 Hawai#i 226, 234, 900 P.2d

1293, 1301 (1995) (“Many defendants are unaware that they have a

constitutional right to testify which no one, not even their

lawyer, may take away from them”) (internal quotation marks and

citations omitted); State v. Eli, 126 Hawai#i 510, 523, 273 P.3d

1196, 1209 (2012) (defendant could not have validly waived

Miranda right to remain silent when defendant was not informed
      28
          A defendant’s behavior in certain circumstances may prevent the
court from having the opportunity to adequately inform the defendant of the
constitutional rights that will be lost upon the defendant’s departure from
the courtroom.

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“of the consequences of his waiving his right to remain silent

and the entire panoply of rights such a commitment [to give a

statement to the police] involved”).

            A defendant who expresses an intention to not testify

and a defendant who states an intention to leave are similarly

situated.    In both circumstances the defendant is present in the

courtroom and indicating an intention to waive a fundamental

constitutional right.     Defendants who decide not to exercise

their right to testify are required to be advised by the trial

court of the nature of the right and the consequences of waiver.

In a similar vein, defendants who indicate their intent to not

exercise their right to be present at trial by expressing their

intention to leave the courtroom should be informed of the

constitutional rights that will be lost upon leaving the

courtroom.

            Second, informing the defendant of the full nature of

the rights that will be lost conveys to the defendant the gravity

of the consequences of a departure from the courtroom and the

severe disadvantages incurred by the absent defendant.            An

advisory will prevent the court from unintentionally conveying

the message that the court is indifferent to the defendant’s

presence at trial.    Instead, a formal advisory would communicate

the importance of the defendant’s presence at trial and ensure

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that the defendant makes a deliberate, informed choice to not be

present.

           Third, the burden imposed on trial courts to undertake

the formal advisory is relatively minimal compared to the

significant interests served in safeguarding the defendant’s

constitutional right to be present at trial.          Cf. State v. Chow,

77 Hawai#i 241, 247, 883 P.2d 663, 669 (App. 1994) (requiring the

trial court to make direct inquiry of the defendant’s wish to

address the court before sentence is imposed places a “limited

burden on the trial court [that] is outweighed by the beneficient

policies served by the procedure”).

           Finally, society generally abhors a criminal trial in

abstentia.   At common law, the defendant’s right of presence was

considered unwaivable in felony cases because of “the notion that

a fair trial could take place only if the jurors met the

defendant face-to-face and only if those testifying against the

defendant did so in his presence.”        Crosby v. United States, 506

U.S. 255, 259 (1993).     “Our system of justice functions best when

the accused is present throughout trial.         Defendants are able to

communicate with counsel, participate in trial strategy, assist

in presenting a defense, and aid with cross-examination.”             State

v. Luna, 936 A.2d 957, 961 (N.J. 2007).         In this sense, “a

defendant’s presence promotes public confidence in our courts as

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instruments of justice and helps insure the integrity of a

trial’s outcome.”      Id. (internal citation omitted).

            At the time the defendant’s intention to leave is

expressed, it cannot be certain that the defendant will actually

follow through with the stated intention.           Such a defendant has

voluntarily appeared at court, presumably with the initial

purpose of being present during the court proceedings.             A

colloquy that informs the defendant of the constitutional rights

that will be waived by leaving may have the salutary effect of

persuading the defendant to remain.29         In addition, engaging the

defendant in a colloquy may disclose to the court an underlying

reason why the defendant does not wish to be present,30 allowing

that issue to be addressed and neutralizing the defendant’s

intention to leave, or at the least, providing the trial court

with additional information.31

            Accordingly, in light of these substantial

considerations, trial courts should advise the defendant of the


      29
         There is no indication in the record of Kaulia departing from the
courtroom during any of the court proceedings prior, or subsequent, to trial .

      30
         In the cases cited, the defendants wanted to leave the courtroom
because they were dissatisfied with their court-appointed counsel.
Commonwealth v. Faulk, 928 A.2d 1061, 1067 (Pa. Super. 2007); Commonwealth v.
Vega, 719 A.2d 227, 228-29 (Pa. 1998); State v. Talarico, 661 N.W.2d 11, 16
(S.D. 2003).

      31
         HRPP Rule 43 does not require trial courts to proceed with trial when
the defendant is voluntarily absent.

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constitutional rights that will be lost upon exiting the

courtroom, where the defendant has expressed an intention to be

absent from the proceedings and the court has the opportunity to

address the defendant.32      Ultimately, by engaging the defendant

in this manner, the trial court seeks to ensure that the

defendant makes an informed decision to not be present.

                                    IV.

            The Double Jeopardy Clause bars retrial of a defendant

where reversal is based on the insufficiency of the evidence.

State v. Silver, 125 Hawai#i 1, 9, 249 P.3d 1141, 1149 (2011).

Thus we also address Kaulia’s sufficiency of evidence claim.

State v. Tucker, 10 Haw. App. 73, 96, 861 P.2d 37, 49 (1993).

            Kaulia maintains that there was insufficient evidence

to negate his claim of self-defense.         “In reviewing the legal

sufficiency of the evidence on appeal, . . . the test is whether,

viewing the evidence in the light most favorable to the State,

substantial evidence exists to support the conclusion of the

trier of fact.”     State v. Lubong, 77 Hawai#i 429, 432, 886 P.2d

766, 769 (App. 1994).      “Substantial evidence” is evidence of

“sufficient quality and probative value to enable a person of

reasonable caution to reach a conclusion.”           Id.

     32
         We reiterate that a defendant’s conduct in certain circumstances may
prevent the trial court from informing the defendant of the constitutional
rights that will be lost upon exiting the courtroom. See supra note 28.

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           Substantial evidence was presented at trial to negate

Kaulia’s claim of self-defense.       The complainant testified that

Kaulia “shoved” him first, and Kaulia “kept holding his fist up

to me.”    The complainant also testified that Kaulia attempted to

punch him first but missed, and that Kaulia “backhanded” Masi in

the mouth.   This testimony was undisputed.         Therefore, sufficient

evidence was presented to enable a reasonable person to conclude

that Kaulia’s actions were not justified by self-defense.

                                         V.

           For the foregoing reasons, the ICA’s August 10, 2012

judgment and the district court’s January 18, 2011 judgment are

vacated.   This case is remanded for a new trial consistent with

this opinion.


     Alen M. Kaneshiro                        /s/ Mark E. Recktenwald
     for petitioner
                                              /s/ Paula A. Nakayama

     Linda L. Walton                          /s/ Simeon R. Acoba, Jr.
     for respondent
                                              /s/ Sabrina S. McKenna

                                              /s/ Richard W. Pollack




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