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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-11-0000338
                                                               30-OCT-2013
                                                               08:12 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                  ---o0o—


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

                                     vs.

        LUIS GOMEZ-LOBATO, Petitioner/Defendant-Appellant.


                             SCWC-11-0000338

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0000338; FC-CR NO. 10-1-279K)

                             October 30, 2013

                    CONCURRING OPINION BY ACOBA, J.

           I would hold that the waiver of the right to jury trial

in this case was invalid, because under the circumstances, the

Family Court of the Third Circuit (the court) did not engage
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Petitioner/Defendant-Appellant Luis Gomez-Lobato (Gomez-Lobato)

in an on-the-record colloquy that would ensure that he fully

understood the right that he was waiving.1

           I would also hold that in the future, in order to

ensure that a waiver of the constitutional right to a trial by

jury, Haw. Const. art. I, § 14, is knowingly, intelligently and

voluntarily made, courts must conduct an on-the-record colloquy

that includes informing the defendant that (1) twelve members of

the community compose a jury, (2) defendants may take part in

jury selection, (3) jury verdicts must be unanimous, and (4) the

court alone decides guilt or innocence if defendants waive a jury

trial.   See State v. Friedman, 93 Hawai#i 63, 68, 996 P.2d 268,

273 (2000) (citations omitted).

           Such an admonition is especially imperative where there

is a “salient fact,” see State v. Duarte-Higareda, 113 F.3d 1000

(9th Cir. 1997), such as the language barrier in this case, that

should alert the court of the need to ensure that the defendant

fully understands his or her waiver of jury trial.            Indeed,

“inherent in the nature of justice is the notion that those

involved in the litigation should understand and be understood.”

In re Doe, 99 Hawai#i 522, 534, 57 P.3d 447, 459 (2002).




     1
           I concur with the majority in the result.

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                                     I.

                                     A.

            On October 26, 2010, Gomez-Lobato was charged by

Complaint with Abuse of Family or Household Member, Hawai#i

Revised Statutes (HRS) § 709-906(1) (Supp. 2010)2.            On December

22, 2010, Gomez-Lobato appeared before the court,3 assisted by a

Spanish language interpreter.        Gomez-Lobato was provided with a

waiver of jury trial form, and the court called a recess in order

for the interpreter to review the form with Gomez-Lobato outside

of the courtroom.     The form stated as follows4:
            1. I waive my right to a jury trial in the following
            charge(s):
                  AFHM [Abuse of Family or Household Member]

            2. LGL [Gomez-Lobato] I understand that I have the
            constitutional right to a jury trial. Furthermore, I
            understand that a jury trial is a trial in the Circuit Court
            before a judge and a jury and that I can participate in the
            process of selecting a jury of twelve (12) citizens from the



      2
            HRS § 709-906(1) 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.

      3
            The Honorable Aley K. Auna, Jr. presided.

      4
            Emphases indicate a handwritten portion of the form, strike-
through indicates that a line was put through the text on the form.

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      Third Circuit. This jury would hear the evidence in my
      case, and then decide if I am guilty or not guilty. Finally
      I understand that in order for me to be convicted by a jury,
      their vote must be unanimous.

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

      4a. I have intelligently and of my own free will decided to
      represent myself and do now waive and give up my right to an
      attorney for the purposes of this hearing.

                               OR

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

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

      6. LGL 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.

            Dated: Kealakekua Naalehu Kapaau, Hawai#i, 12/22/10
                                                Luis Gomez Lobato
                                                Defendant

                         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.

            Dated:   Kealakekua Naalehu Kapaau, Hawai#i. 12/22/10
                                                 [signature illegible]
                                                 Attorney for Defendant


            I acknowledge that Judge Joseph P. Florendo, Jr. (or
      Judge A.K. Akuna, Jr.) questioned me personally in open
      court to make sure that I knew what I was doing and
      understood this form before I signed it.

                                           Luis Gomez Lobato
                                           Defendant
                                           (To be signed in open court.)



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          Upon returning to the courtroom after the recess, the

following exchange took place:
          [Gomez-Lobato’s attorney]: [Gomez-Lobato] has reviewed the
          waiver of jury trial form.
          . . . .
          THE COURT: Good morning, Mr. Gomez[-]Lobato. I have with me
          a waiver of jury trial form. Are these your initials, and
          is this your signature on this form?
          [Gomez-Lobato]: Yes.
          THE COURT: Prior to placing your initials and signature on
          this form, did you understand what you were doing and
          signing?
          [Gomez-Lobato]: Yes.
          THE COURT: And was that explained to you in Spanish?
          [Gomez-Lobato]: Yes.
          THE COURT: Did you discuss this with your attorney?
          [Gomez-Lobato]: Yes.
          THE COURT: Okay. Do you have any questions for me?
          [Gomez-Lobato]: No.
          THE COURT: Okay. The [c]ourt concludes that the defendant
          knowingly, voluntarily, intelligently waived his rights to a
          jury trial.

(Emphasis added.)    The waiver of jury trial form signed by Gomez-

Lobato was in the English language.

          On March 1, 2011, an Amended Complaint was filed,

changing the dates on which the offense was allegedly committed.

          The bench trial took place on March 9, 2011.5            The

proceedings were conducted with the assistance of a Spanish

language interpreter.     At the conclusion of trial, the court

found Gomez-Lobato guilty and sentenced him to thirty (30) days

imprisonment and 30 days imprisonment suspended for two years on

the condition that he comply with the terms and conditions of




     5
          The Honorable Joseph P. Florendo, Jr. presided.

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probation.6   The Judgment of Conviction and Sentence was filed on

March 15, 2011.

                                    B.

          Gomez-Lobato appealed to the Intermediate Court of

Appeals (ICA), alleging that the court plainly erred because it

(1) did not obtain a valid waiver of Gomez-Lobato’s right to

trial by jury, and (2) sentenced Gomez-Lobato based on uncharged

conduct, namely, attempted murder.        Respondent/Plaintiff-Appellee

State of Hawai#i (the State) responded that (1) the colloquy and

facts of the case indicate a valid waiver, and (2) the court did

not sentence Gomez-Lobato for an uncharged crime and did not rely

on any fact outside the record of the trial.

          In his Reply Brief, Gomez-Lobato maintained that he did

not knowingly, intelligently and voluntarily waive his right to

trial by jury because there was a language barrier, and the court

elicited only one word “yes” or “no” responses, rather than


     6
          The court stated, inter alia, as follows:

          THE COURT: I have found you guilty of a criminal offense,
          and you as of yet failed to take responsibility for your
          actions. Did you wish to make any statement before the
          [c]ourt sentences you?
          . . . .
          THE COURT: All right. The [c]ourt would find you guilty
          and order that you be placed on probation for a period of
          two years. I will order that you be imprisoned for a period
          of 30 days.
                I will suspend 30 days of jail for two years on
          condition you comply with all of the terms and conditions of
          probation[.]
          . . . .



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determining whether Gomez-Lobato clearly understood the

constitutional right he was giving up.7         Gomez-Lobato also

explained that, in his view, the judge’s words concerning

attempted murder indicated that the judge had in mind a felony

crime when sentencing Gomez-Lobato.

            The ICA issued a Summary Disposition Order (SDO) on

October 25, 2012.8     State v. Gomez-Lobato, No. CAAP-11-0000338,

128 Hawai#i 312, 288 P.3d 130, 2012 WL 5272234 at *1 (App. Oct.

25, 2012) (SDO).     The ICA held that under the totality of the

circumstances, “‘taking into account the defendant’s background,

experience, and conduct[,]’” id. (quoting Friedman, 93 Hawai#i at

70, 996 P.2d at 275), “Gomez-Lobato failed to demonstrate by a

preponderance of the evidence that his waiver was involuntary[,]”

id. at *2.    In support of this conclusion, the ICA noted that (1)

Gomez-Lobato provided no authority supporting the proposition

that the court had to do more than ask him yes or no questions

about his waiver, (2) Gomez-Lobato had the assistance of an

interpreter and the court recessed so that the interpreter could


      7
            On appeal to the ICA and before this court, Gomez-Lobato also
argued that because he signed the waiver of jury trial form before the State
filed an amended complaint to alter the dates of the alleged offense, his
waiver was invalid. On this issue, I concur with the majority’s statement
that “[t]he general rule is that a valid waiver remains effective after a
complaint is amended, unless the amended complaint added additional counts or
substituted a more serious offense.” Majority’s opinion at 17 n.11. Thus,
Gomez-Lobato’s jury trial waiver form was ostensibly valid despite the
subsequent alteration of dates in the amended complaint.

      8
            The ICA’s SDO was filed by the Honorable Daniel R. Foley, the
Honorable Alexa D.M. Fujise, and the Honorable Lawrence M. Reifurth.

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review the waiver form with Gomez-Lobato, (3) after recess Gomez-

Lobato’s attorney stated that he had reviewed the form, and (4)

the court asked Gomez-Lobato a number of questions about his

understanding, to which he responded “Yes.”           Id. at *1.    The ICA

entered its Judgment on November 23, 2012.9

                                     II.

            On certiorari to this court, Gomez-Lobato argues, with

respect to his first point, that he did not validly waive his

right to trial by jury, and that the ICA erred in affirming the

court’s sentence.     The State did not file a Response to the

Application.

                                    III.

                                     A.

            The right to trial by jury is a fundamental right

protected by the sixth amendment to the United States



      9
            Inasmuch as this case must be vacated, Gomez-Lobato’s point of
error with respect to his sentence need not be addressed.
            However, two brief points are noted with respect to the ICA’s
decision on this issue. First, respectfully, the ICA mistakenly noted that
Gomez-Lobato was sentenced to one thirty-day term of incarceration, suspended
for two years. See Gomez-Lobato, 2012 WL 5272234, at *1. Rather, Gomez-
Lobato was sentenced to one 30-day term of imprisonment, and to an additional
30-day term of imprisonment, which was suspended provided that Gomez-Lobato
comply with the terms and conditions of his probation.
            Second, at sentencing, the court apparently decided that Gomez-
Lobato had failed to take responsibility for his actions before asking him if
he would like to make a statement. Cf. State v. Chow, 77 Hawai#i 241, 246-47,
883 P.2d 663, 668-69 (1994) (recognizing that a defendant’s “right to be heard
in criminal proceedings prior to sentencing is constitutionally protected”).
Although the court eventually heard from Gomez-Lobato at sentencing and so his
constitutional right to be heard was satisfied, the court had apparently
decided, before giving him a chance to speak, that he had not taken
responsibility for his actions.

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Constitution10, article I, section 14 of the Hawai#i

Constitution11, and by statute.       See Hawai#i Revised Statutes

(HRS) § 806-60 (1993) (“Any defendant charged with a serious

crime shall have the right to trial by a jury of twelve members.

‘Serious crime’ means any crime for which the defendant may be

imprisoned for six months or more.”)12; see also State v. Ibuos,

75 Haw. 118, 120, 857 P.2d 576, 577 (“In Hawai#i, a statutory

right to a jury trial arises whenever a criminal defendant can be

imprisoned for six months or more upon conviction of the

offense.”) (citing HRS § 806-60).

            Hawai#i Rules of Penal Procedure (HRPP) Rule 5(b)(1)

requires that “the court shall in appropriate cases inform the

      10
            The Sixth Amendment to the United States Constitution provides, in
relevant part that, “[i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed[.]” U.S. Const. amend.
VI.

      11
            The Hawai#i Constitution similarly provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial by an impartial jury of the district wherein the crime shall have
been committed[.]” Haw. Const. art. I, § 14.

      12
            Although HRS § 806-60 provides that a “serious crime” for which
there is a right to trial by jury means “any crime for which the defendant may
be imprisoned for six months or more[,]” this court has taken into account
multiple factors when determining if an offense is petty or serious, for
purposes of the right to trial by jury. See State v. Ford, 84 Hawai#i 65, 69-
70, 929 P.2d 78, 82-83 (1996). Three factors are analyzed to determine
whether an offense is constitutionally petty or serious: “(1) treatment of the
offense at common law; (2) the gravity of the offense; and (3) the authorized
penalty.” Id. at 70, 929 P.2d at 82; State v. Sullivan, 97 Hawai#i 259, 264,
36 P.3d 803, 809 (2001); see also State v. Lindsey, 77 Hawai#i 162, 164, 883
P.2d 83, 85 (1994) (noting the presumption that this jurisdiction will not
recognize the right to a jury trial where the maximum term of imprisonment is
less than thirty days). Consequently, an offense involving a term of
imprisonment that is less than six months can still constitute
constitutionally a “serious” crime for which there is a right to trial by
jury.

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defendant that he has a right to a jury trial in the circuit

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

court.”   See Ibuos, 75 Hawai#I at 120, 857 P.2d at 577.

“[A]ppropriate cases” are those cases where the defendant has a

constitutional right to a jury trial.        See Friedman, 93 Hawai#i

at 68, 996 P.2d at 273 (2000) (citing Ibuos, 75 Hawai#i at 120,

857 P.2d at 577).

            “A defendant may, orally or in writing, voluntarily

waive his or her right to trial by jury[,]” but for a valid

waiver, “the trial court has a duty to inform the accused of that

constitutional right.”     Id. (citing Ibuos, 75 Haw. at 120, 857

P.2d at 577) (citation omitted)).        The colloquy preceding any

waiver of the right to jury trial serves several functions: “‘(1)

it more effectively insures voluntary, knowing and intelligent

waivers; (2) it promotes judicial economy by avoiding challenges

to the validity of waivers on appeal; and (3) it emphasizes to

the defendant the seriousness of the decision [to waive a jury

trial].’”    Id. (quoting United States v. Cochran, 770 F.2d 850,

851-52 (9th Cir. 1985)) (alterations omitted) (other citations

omitted).

            HRS § 806-61 (1993) provides that “[t]he defendant in a

criminal case may, with the consent of the court, waive the right

to a trial by jury either by written consent filed in court or by

oral consent in open court entered on the minutes.” (Emphasis

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added.)   This is reiterated in Hawai#i Rule of Penal Procedure

(HRPP) Rule 23(a), which provides that “[c]ases required to be

tried by jury shall be so tried unless the defendant waives a

jury trial with the approval of the court.         The waiver shall be

either by written consent filed in court or by oral consent in

open court entered on the record.”        (Emphasis added.)      While the

foregoing rule and statute seem to indicate a written form would

suffice to effect a waiver, a colloquy between the court and the

defendant in open court and on-the-record would appear necessary

in waiving a constitutional right to a jury trial.           This court

has required an oral waiver in the context of entrance of a

guilty plea, see State v. Vaitogi, 59 Haw. 592, 585 P.2d 1259

(1978), and the waiver of the right to counsel, see Wong v.

Among, 52 Haw. 420, 477 P.2d 630 (1970).         Ibuos, 75 Haw. at 121

n.1, 857 P.2d at 576 n.1.      Similarly, the constitutional nature

of the right to trial by jury requires that a waiver of that

right be made on-the-record.       See Haw. Const. art. I, § 14.           The

Hawai#i Constitution controls over any inconsistent language

permitting waiver by written consent alone.

           While a defendant may waive his or her right to a jury

trial, the waiver must be made knowingly, intelligently, and

voluntarily.   Id.; see also State v. Han, 130 Hawai#i 83, 89, 306

P.3d 128, 134 (2013) (noting that the waiver of a fundamental

right must be made knowingly, intelligently, and voluntarily).

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“The failure to obtain a valid waiver of this fundamental right

constitutes reversible error.”        Friedman, 93 Hawai#i at 68, 996

P.2d at 274 (citing Ibuos, 75 Hawai#i at 120, 857 P.2d at 577).

                                      B.

            As discussed supra, “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.”13            Friedman,

93 Hawai#i at 67, 996 P.2d at 272.         This court reviews questions

of constitutional law, including the waiver of a jury trial,

under the right/wrong standard.         Id.   Gomez-Lobato’s waiver of

jury trial was deficient for two reasons.

            First, as a general matter, the court’s colloquy

consisted of only yes and no questions, and under the

circumstances, was not sufficient to gauge his understanding of

the constitutional right.       Second, his language barrier was a

“salient fact” requiring that the court conduct an on-the-record

colloquy to ensure Gomez-Lobato’s understanding of the right.               In

connection with this ground, because Gomez-Lobato went over the

      13
             It is noted that Gomez-Lobato did not raise his points of error at
trial. However, it is well established that this court may sua sponte notice
“[p]lain errors or defects affecting substantial rights . . . [,]” HRPP Rule
52(b), and that “this court will apply the plain error standard of review to
correct errors which seriously affect the fairness, integrity, or public
reputation of judicial proceedings, to serve the ends of justice, and to
prevent the denial of fundamental rights.” State v. Miller, 122 Hawai#i 92,
100, 223 P.3d 157, 165 (2010) (citations omitted). Because of the fundamental
constitutional nature of the right to a jury trial, this court has held that
the failure to waive a jury trial constitutes plain error that can be
recognized for the first time on appeal. See Friedman, 93 Hawai#i at 68, 996
P.2d at 272.

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form with the interpreter outside the presence of the court, the

court should have inquired of Gomez-Lobato as to his

understanding of the matters on the form, so that the court could

be assured that such matters were correctly translated to him.

                                       IV.

             As noted, “[f]or a valid waiver of the right to a jury

trial, the trial court has a duty to inform the accused of that

constitutional right.”        Friedman, 93 Hawai#i at 68, 996 P.2d at

273.    This is accomplished through a colloquy conducted in open

court.     Id.   “‘Colloquy’ is defined as ‘[a]ny formal discussion,

such as an oral exchange between a judge, the prosecutor, the

defense counsel, and a criminal defendant in which the judge

ascertains the defendant’s understanding of the proceedings and

of the defendant’s rights.’” Han, 130 Hawai#i at 90, 306 P.3d at

135 (emphases in original) (quoting Black’s Law Dictionary 300

(9th ed. 2009)).       Under the circumstances of this case, it does

not appear that the court properly engaged Gomez-Lobato in such a

colloquy, and therefore did not adequately ascertain his

understanding of the proceedings.

               In the exchange between the court and Gomez-Lobato,

the court made a number of omissions.           Namely, it did not ask

Gomez-Lobato any questions about the content of the jury trial

waiver form or the rights articulated on the form itself, but



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instead only asked whether he generally understood what he was

“doing and signing” prior to initialing the form.           That question

by itself does not indicate that Gomez-Lobato understood what a

jury trial means or that he was waiving the right to a jury

trial.   As discussed infra, inquiring directly of the defendant

as to his understanding of the material parts of the form may

help the court to confirm that the waiver form was properly

translated for the defendant.       Finally, the court’s last

question, “[d]o you have any questions for me?” also would not

provide any indication as to whether the defendant understood his

right to a jury trial, because the court had not articulated the

content of the right to the defendant in the first instance.

           Although in State v. Sprattling, 99 Hawai#i 314, 55

P.3d 276 (2002), discussed further, infra, this court upheld the

defendant’s waiver of the right to jury trial where the defendant

answered the court’s questioning with, in effect, yes or no

responses, that case is distinguishable from the instant case.

See 99 Hawai#i at 315, 55 P.3d at 276.        In Sprattling, the trial

court articulated to the defendant the content of the right to a

jury trial, including that he would have an opportunity to select

twelve people from the community to make a decision on guilt or

innocence.   Id.   As a result, when the defendant answered “yes”

or “I understand that, sir[,]” id., the defendant was answering



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questions about what the right to jury trial actually meant.               In

this case, on the other hand, Gomez-Lobato only answered

questions about the act of signing the waiver form, and generally

whether he understood the form.       The questions did not address

any specific portions of the form, or the substance of the right

at issue.

            Under the circumstances of a case, simply asking yes or

no questions, even in connection with a signed jury trial waiver

form, may not sufficiently confirm that a criminal defendant

understands the right that he or she is waiving.           Asking the

defendant to articulate back to the court his or her

understanding of the right at issue may establish an “oral

exchange” that would provide assurance of “the defendant’s

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

Han, 130 Hawai#i at 90, 306 P.3d at 128 (citation omitted).

            In Friedman, this court noted that the colloquy

suggested that the defendant was aware of his right to trial by

jury, because “[the defendant] did not simply acknowledge his

right to a jury trial with a simple ‘yes’; rather, [the

defendant] articulated to the trial court that ‘[a] jury trial is

where the outcome of . . . whether it’s guilty or not is to be

determined by 12 adults instead of a judge.’”          93 Hawai#i at 70,

996 P.2d at 268.    The discussion between the court and Gomez-



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Lobato, therefore, did not establish that he understood the right

that he was waiving by signing the form, and that he knowingly,

intelligently, and voluntarily gave up that right.           His waiver of

the right to trial by jury would therefore be invalid on these

grounds alone.

                                    V.

                                    A.

          Additionally, Gomez-Lobato’s lack of English

proficiency was a “salient fact” the court was required to

consider in conducting its colloquy.        In Duarte-Higareda, a

federal case discussed in Friedman at length, see Friedman, 93

Hawai#i at 69, 996 P.2d at 274, the defendant had used a Spanish

language interpreter throughout the proceedings, but signed a

written jury waiver form that was written entirely in English.

113 F.3d 1003.    Duarte-Higareda held that “[the defendant’s]

language barrier, like [] mental illness, is a salient fact that

was known to the district court and put the court on notice that

[the defendant’s] waiver might be less than knowing and

intelligent[.]”    Id. (emphasis added).       The Ninth Circuit thus

held that the language barrier triggered an additional reason for

the district court to engage in a colloquy with the defendant “to

carry out its ‘serious and weighty responsibility’ of ensuring

that a defendant’s jury waiver is voluntary, knowing, and



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intelligent.”     Id. (quoting United States v. Christensen, 18 F.3d

822, 826 (9th Cir. 1994)).14

            Recently, this court, in Han, employed the rationale in

Friedman in holding that the trial court’s colloquy with the

defendant regarding his right to testify or not to testify was

insufficient, because of the “salient fact” of the defendant’s

language barrier.     See Han, 130 Hawai#i at 92, 306 P.3d at 137.

Previously, the ICA had interpreted Friedman to require that the

court conduct the specific, four-part on-the-record colloquy

articulated in Friedman whenever there is a “salient fact”

drawing the court’s attention to the fact that the defendant may

not understand the right to jury trial he or she is waiving.                See

State v. Barros, 105 Hawai#i 160, 169, 95 P.3d 14, 24 (App. 2004)

(“[The defendant] has failed to direct us to any ‘salient fact’

bearing upon his ability to understand his jury waiver. . . such

as the defendant’s lack of English in Duarte-Higareda . . . that

would have created the need for an extensive colloquy by the

trial court[.]”) (emphasis omitted) (internal quotation marks and

citations omitted), cert. denied, 105 Hawai#i 196, 95 P.3d 627

(2004); State v. Mitchell, 94 Hawai#i 388, 395, 15 P.3d 314, 321




      14
            Obviously if it is evident on-the-record that a non-native speaker
is articulate in the English language, no barrier to understanding the
proceeding would exist, and thus a “salient fact” consideration would not
apply. See note 15, infra.

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(App. 2000) (“[The defendant] has not pointed to any ‘salient

fact’ indicating an inability to understand or to make a

constitutionally effective waiver of his jury trial right, that

would have created the need for an extensive colloquy by the

court.”) (citation omitted).

            There is no question that Gomez-Lobato’s language

barrier in the instant case was a “salient fact” within the

meaning of Duarte-Higareda, as articulated by this court in

Friedman.   Gomez-Lobato was assisted by a Spanish language

interpreter throughout trial and, as noted, in reviewing the jury

trial waver form.    Thus, having established that there was a

“salient fact” that could inhibit the defendant’s understanding,

pursuant to this court’s holding in Friedman, 93 Hawai#i at 69,

996 P.2d at 274, the court was required to relate the specific,

four-part inquiry discussed supra, in its colloquy with Gomez-

Lobato.

                                   B.

            Additionally, the use of a Spanish language interpreter

to assist Gomez-Lobato out of the presence of the court in

reading the English language jury trial waiver form should have

alerted the court of the need to conduct a more complete on-the-

record colloquy with Gomez-Lobato regarding his signing of the

jury trial waiver form.     Pursuant to HRPP Rule 28(b), the court



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may appoint an interpreter to assist a criminal defendant.15

This is in accordance with procedural due process, which requires

that “an individual whose rights are at stake understand the

nature of the proceedings he or she faces.”           In re Doe, 99

Hawai#i at 533, 57 P.3d at 458.        The court in this case should

have asked the defendant to articulate back, through the

interpreter, the contents of the right that he was waiving.

            By having Gomez-Lobato describe for the court in his

own words, with the assistance of the interpreter, the right to

jury trial, the court would have had a basis for concluding that

the translation by the interpreter enabled Gomez-Lobato to

understand the jury trial waiver form, and accordingly, the




      15
            However, an interpreter may not always be required where an
individual’s first language is not English. In re Doe held that “[t]o assess
whether an interpreter is necessary,” courts should consider the following
guidance:

            “[a]n interpreter is needed if upon examination by the
            court, (1) a party or witness is unable to speak English so
            as to be understood directly by counsel, court, and jury, or
            (2) if a party is unable to hear, understand, speak and/or
            use English sufficiently to comprehend the proceedings and
            to assist counsel in the conduct of the case.”

In re Doe, 99 Hawai#i at 535, 57 P.3d at 460 (emphases omitted) (quoting
Supreme Court of Hawai#i, Policies for Interpreted Proceedings in the Courts
of the State of Hawai#i Rule 1(a) (adopted June 22, 1995), available at
Supreme Court of Hawai#i, Hawaii Rules for Certification of Spoken and Sign
Language Interpreters, Appendix B (adopted July 11, 2007)). See also, Hawaii
Rules for Certification of Spoken and Sign Language Interpreters Rule 1.3 (“A
person who is Limited English Proficient (LEP), deaf, or hard-of-hearing
shall, throughout a legal proceeding, have the right to the assistance of an
interpreter appointed by the court as provided by court rule.”).

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nature of the constitutional right to a trial by jury.            Haw.

Const. art. I, § 14.     The colloquy that the court did conduct

with Gomez-Lobato provided no such assurances, because the court

did not question Gomez-Lobato on the substance of the right he

was waiving.

          Based on the insufficiency of the colloquy at trial,

the case must be remanded for a new trial.         As will be discussed

infra in the next section, however, the circumstances of this

case highlight the need for a uniform inquiry to be given where

the defendant is waiving his or her right to a jury trial.

                                    VI.

          This court has provided guidance to the courts as to

the type of colloquy that should be conducted in order to ensure

that a defendant’s waiver of the right to a jury trial is valid.

As discussed supra, during the colloquy, a court should inform

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

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

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

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

Friedman, 93 Hawai#i at 69, 996 P.2d at 274 (quoting Duarte-

Higareda, 113 F.3d at 1002) (citation omitted).

          This court has not heretofore adopted the requirement

in a published opinion that the above four-part advisement be



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included in the colloquy given in every case.16              State v. Kaupe,

No. 22725, slip op. at 18 (Haw. May 10, 2001) (mem.).              However,

as discussed infra, the ICA in a published opinion did hold that

the four-part advisory derived from Friedman was apropos in a

jury trial waiver proceeding.         State v. Valdez, 98 Hawai#i 77,

79, 42 P.3d 654, 656 (App. 2002) (stating that “we believe the

four-part colloquy referred to in Friedman is apropos”).              In

determining whether such an admonition should be required, a

brief historical discussion of the evolution of this court’s law

in this area is instructive.

            In 1972, in State v. Olivera, 53 Haw. 551, 497 P.2d

1360 (1972), this court upheld as valid a defense counsel’s

waiver of jury trial on behalf of his client, where the waiver

was given in the presence of the defendant.            53 Haw. at 551-52,

497 P.2d at 1361.      It was concluded that under the circumstances,

the defendant was “well informed” of his right to trial by jury.

Id.   at 553, 497 P.2d at 1362.        Later, this court held in State

v. Swain, 61 Haw. 173, 599 P.2d 282 (1979), that “a defendant’s

waiver of his constitutional right must be knowing and

voluntary[.]”     61 Haw. at 175, 599 P.2d at 284.           There, the State

argued that defense counsel had implicitly waived the defendant’s

right to jury trial by proceeding to trial.            Id.    Swain concluded

      16
            To provide a historical perspective, it must be noted that this
court did discuss the implementation of the four-part colloquy requirement in
an unpublished memorandum opinion, Kaupe, No. 22725, slip op. at 18.

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that where the attorney stated that the defense was “ready to

proceed” to trial, the defendant had not effectively waived his

right to jury trial because “[a]lthough an attorney may waive the

right to trial by jury for his client, express or implied

concurrence of the defendant must be obvious for the waiver to be

effective.”   Id. at 176, 599 P.2d at 287.

          State v. Young, 73 Haw. 217, 830 P.2d 512 (1992),

overruled Olivera and Swain, by requiring that “it is the

defendant who must make the waiver, upon being well informed of

his right to trial by jury.”       73 Haw. at 221, 830 P.2d at 514

(emphasis added).    Young explained that “[i]t is a better

practice for the trial court to exact a knowing and voluntary

waiver from the defendant either in writing or orally in open

court at the time of the arraignment and plea.”           Id. (citing

United States v. Cochran, 770 F.2d 850, 852 (9th Cir. 1985)).

Thus, Young concluded, “[i]n order to provide clearer

instructions to the lower courts and to ensure the safeguard of

the right to jury trial, we now overrule Olivera.”           Id. at 221,

830 P.2d at 515.

          In Ibuos, the prosecution argued that Young was limited

to situations where defense counsel’s waiver was ambiguous, but

did not require that defense counsel could never waive the right

to a jury trial on behalf of his or her client.           75 Haw. at 122,

857 P.2d at 578.    Ibuos rejected that argument, and stated that

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“we now clarify that the personal waiver requirement of Young

applies to situations beyond the ambiguous waiver in Young.”               Id.

          Following Ibuos, in Friedman, this court discussed the

attributes of a valid waiver of the right to jury trial.

Friedman, 93 Hawai#i at 68-71, 996 P.2d at 273-76.           There, the

trial court had engaged in the following colloquy with the

defendant:
          THE COURT: All right, Mr. Friedman. Do you understand what
          [Defense counsel] just told me?
          [FRIEDMAN]: Yes, I do.
          THE COURT: You’re going to enter a plea of not guilty to
          the complaint in this case, you’re also going to give up
          your right to a jury trial; is that correct?
          [FRIEDMAN]: Yes.
          THE COURT: And, you understand what a jury trial’s about?
          [FRIEDMAN]: Yes.
          THE COURT: And can you explain in your own words what you
          understand that to mean?
          [FRIEDMAN]: A jury trial is where the outcome of the - the
          results of whether it’s guilty or not is to be determined by
          12 adults instead of a judge.
          THE COURT: So by waiving that right means that your case
          will be decided by a judge, the judge alone is to decide
          your guilt or innocence.
          [FRIEDMAN]: Yes, Your Honor.
          THE COURT: Is your decision to waive your right to jury
          trial something you thought about and decided to do yourself
          voluntarily.
          [FRIEDMAN]: Yes.
          THE COURT: All right. Since a waiver to jury trial has
          been entered, this matter will be set for trial here in the
          Family Court . . . .

Id. at 66, 996 P.2d at 271 (emphases added).          On appeal, Friedman

had argued that the trial court had a duty to inform him of all

four of the aspects of a jury trial described in Duarte-Higareda.

Id. at 69, 996 P.2d at 274 (citing Duarte-Higareda, 113 F.3d at

1002) (citation omitted).      At that time, Friedman rejected a




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bright line rule requiring all four advisements to be given, and

held instead, that under the circumstances, Friedman had not

demonstrated that his waiver was involuntary, and failed to point

“to any ‘salient fact’ bearing upon his ability to understand his

jury waiver that would have created the need for an extensive

colloquy by the trial court[.]”       Id. at 70, 996 P.2d at 275.

          In Sprattling, the defendant challenged the sufficiency

of his jury trial waiver, and this court reviewed the

circumstances under which the waiver was made, concluding that it

was valid.   99 Hawai#i at 315, 55 P.3d at 279.         It noted, inter

alia, that the defendant was assisted by capable counsel, and

that the district court had informed him that he could select

twelve members of the community as jurors, and that if he chose

to waive his right, the judge would determine his guilt or

innocence.   Id. at 322, 55 P.3d at 286.        Thus, the court had

articulated two of the components of a jury trial to the

defendant, but this court did not require that the court inform

the defendant of all four components.        Id.

          In Valdez, discussed infra, the ICA reiterated the

advice to trial courts from Friedman.        Valdez, 98 Hawai#I at 79,

42 P.3d at 656.    As noted, the ICA stated that it was “apropos”

that trial courts inform defendants of the four-part advisement

set forth in that case to ensure valid jury trial waivers and to



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curtail the number of appeals premised on defective waivers.

Id.17     In Valdez, the ICA stated as follows:

              [T]o provide guidance to the trial court in performing its
              duty to inform the defendant of his/her constitutional right
              to a jury trial, we believe the four-part colloquy referred
              to in Friedman is apropos. The Hawai#i Supreme Court in
              Friedman advised the trial court “to engage in such a
              colloquy to aid in ensuring voluntary waivers.” [93 Hawai#i
              at 69, 996 P.2d at 274.] We reiterate that advice. To
              “ensure a voluntary waiver” of the defendant’s right to a
              jury trial, the trial court should, in open court, directly
              inform the defendant that “(1) twelve members of the
              community compose a jury, (2) the defendant may take part in
              jury selection, (3) a jury verdict must be unanimous, and
              (4) the court alone decides guilt or innocence if the
              defendant waives a jury trial.” Id. (internal quotation
              marks omitted). By the trial court’s use of this procedure,
              the three purposes of an open-court colloquy . . . are fully
              satisfied; the trial court’s ascertainment of the
              defendant’s waiver is facilitated; and any appeal premised
              on the defendant’s defective waiver claims is curtailed.

Valdez, 98 Hawai#i at 79, 42 P.3d at 656 (emphases added) (second

alteration added, other alterations in original).

                                       VII.

              In practice, courts have articulated the right to a

jury trial in a number of different ways to defendants, leading

to a number of appeals, some with merit and some without, on

whether the defendant’s waiver was in fact made knowingly,

intelligently, or voluntarily.           Where such important rights are




      17
            The majority distinguishes Valdez on the basis that the State had
conceded that the defendant’s waiver was invalid. Majority’s opinion at 17
n.11. However, respectfully, the State’s concession appears to have had
little or no impact on the ICA’s analysis and conclusion in that case with
respect to the implementation of the four-part colloquy. Valdez, 98 Hawai#i
at 79, 42 P.3d at 656.

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at stake, and where the remedy of a violation of such a right is

a remand for a new trial, the advantage of requiring courts to

include a specific inquiry on-the-record is readily apparent.

          Indeed, the reasons underlying the requirement that a

court conduct a colloquy at all support the mandate of certain

specific questions.     First, the Friedman inquiry would be more

effective than the current, generalized requirement of ensuring

knowing, intelligent, and voluntary waivers, because it would

specifically advise each criminal defendant of the nature of a

jury trial, and therefore, what rights the defendant would be

foregoing.

          Second, the inquiry would limit the number of appeals,

because appellate courts would no longer be reviewing the content

of the colloquy on a case-by-case basis, but would instead

consider whether the court’s colloquy included the four-part

advisement, curtailing the potential defective waiver claims that

could be appealed.    Courts would be assured that cases would not

be vacated on appeal for failure to properly set forth the nature

of a jury trial and the consequences of waiving such a trial.

Third, a more in-depth description of the jury trial process

would serve to emphasize to the defendant the seriousness of what

he or she would be deciding to waive and to lend confidence to

the parties and the courts that the waiver was properly made.



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            The four-part advisement described in Friedman is

already contained in the Hawai#i Criminal Bench Book.18            Thus, no

undue hardship would result from mandating that the above model

inquiry be given as part of the colloquy in each case where the

defendant has expressed an intent to waive his or her right to a

jury trial.

                                    VIII.

            The majority notes that where a defendant is assisted

by an interpreter, defense counsel is obligated to explain to the

defendant the waiver of a constitutional right, and that, in this

case, it is not clear whether defense counsel did in fact explain

the waiver to Gomez-Lobato.       Majority’s opinion at 14-15 n.8.            It

is evident that counsel has a duty to his or her client based on

the client’s right to effective counsel to explain the contents

of a jury trial waiver form.        But, such a duty does not excuse

the court from ensuring that the defendant understood the right

being waived, before accepting a waiver of a jury trial.


      18
            The Hawaii Criminal Bench Book provides as follows:

            Also, court should directly inform defendant in open court
            that:

            Twelve members of the community compose a jury;

            Defendant may take part in jury selection;

            A jury verdict must be unanimous; and

            In a bench trial, the court alone decides guilt or innocence
            if defendant waives trial by jury.

Hawaii Criminal Bench Book, Jury Trial, Right to Trial by Jury, Section D -
“Court’s Duty to Inform Defendant of Right.” (emphasis added).

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             It is well-established that the waiver of a jury trial

is a personal one.       See Young, 73 Haw. at 221, 830 P.2d at 514.

Insofar as the majority indicates that a defendant could waive

his right based on the explanation by the defense counsel, it

poses a new limitation on the court’s obligation to ensure that

the waiver is validly made.         Further, the uncertainty as to

whether defense counsel explained the waiver form through the

interpreter, or whether the interpreter simply went over the text

of the waiver form with the defendant is further reason for

requiring a uniform inquiry to assure validity of waivers.

             The majority also concludes there was ambiguity in the

court’s colloquy with respect to whether Gomez-Lobato discussed

“this” with his attorney and whether by “this” the court meant

the waiver form, the waiver of the right to jury trial, or the

initialing and signing of the form.           Majority’s opinion at 14

n.7.    Again, such ambiguity illustrates precisely why this court

should adopt for the trial courts a specific inquiry to include

in the court’s colloquy, to ensure that not only Gomez-Lobato,

but all defendants, understand this right, so that on appeal, a

reviewing court can determine whether or not a particular

exchange resulted in a valid waiver.           In this case, as discussed

supra, the exchange did not result in a valid waiver.

                                       IX.

             Hawai#i case law requires that specific admonitions be

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given in other cases where the rights at stake are those of a

fundamental constitutional nature.           For example, in the context

of the criminal defendant’s right to testify, the trial court

must conduct two separate advisements to a defendant explaining

the right, one at the start of trial -- the “Lewis advisement”,

see State v. Lewis, 94 Hawai#i 292, 296-97, 12 P.3d 1233, 1237-38

(2000), and one at the close of the defendant’s case -- the

“Tachibana colloquy”, see Tachibana v. State, 79 Hawai#i 237 n.9,

900 P.2d 1304 n.9 (1995).         Han, 130 Hawai#i at 90, 306 P.3d at

135.    The second of these advisements requires the court to

engage in a specific colloquy with the defendant where he or she

has indicated the preference not to testify, advising him or her
             “[ (1) ] that he or she has a right to testify, [ (2) ] that
             if he or she wants to testify that no one can prevent him or
             her from doing so, and [ (3) ] that if he or she testifies
             the prosecution will be allowed to cross examine him or her.
             In connection with the privilege against self-incrimination,
             the defendant should also be advised that [ (4) ] he or she
             has a right not to testify and [ (5) ] that if he or she
             does not testify then the jury can be instructed about that
             right.”

Id. (quoting Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at 1303

n.7).     Significantly, one of the rationales that this court has

recognized for requiring this specific colloquy is “‘the

minimization of post-conviction disputes over the actual waiver

of the right to testify[.]’”          Han, 130 Hawai#i at 88, 306 P.3d at

133 (emphasis added) (quoting Lewis, 94 Hawai#i at 295, 12 P.3d

at 1236).


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           Lewis expanded upon Tachibana, requiring that the court

give an additional advisement regarding the defendant’s right to

testify or not to testify.      94 Hawai#i at 297, 12 P.3d at 1238.

On this point, Lewis stated that, “we now mandate that . . . the

trial courts ‘prior to the start of trial, shall (1) inform the

defendant of his or her personal right to testify or not to

testify and (2) alert the defendant that, if he or she has not

testified by the end of the trial, the court will briefly

question him or her to ensure that the decision not to testify is

the defendant’s own decision.’”       Id. (quoting Tachibana, 79

Hawai#i at 237 n.9, 900 P.2d at 1304 n.9).         This additional

advisement, like the Tachibana colloquy, was instituted in order

to “limit[] any post-conviction claim that a defendant testified

in ignorance of his or her right not to testify.”           Id.

           Additionally, in State v. Murray, 116 Hawai#i 3, 169

P.3d 955 (2007), this court held that the trial court must

conduct a colloquy regarding waiver of proof of an element of the

offense.   116 Hawai#i at 12, 169 P.3d at 964.        There, this court

discussed the requirement that a defendant could stipulate to the

element of a prior felony conviction only if the court engaged in

an on-the-record colloquy with the defendant “acknowledging the

prior felony conviction and acceding to the stipulation.”             Id. at

13, 169 P.3d at 965.     Thus, in the context of a stipulation as to

an element of the offense, this court also required that the

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trial court conduct a colloquy to obtain an informed on-the-

record acknowledgment of the defendant’s waiver of the

prosecutorial obligation to prove each element of a crime beyond

a reasonable doubt.      Id.   Notably, Murray grounded its specific

mandate in the reasoning in Ibuos and Tachibana, stating that

“[t]hose cases indicate that a colloquy between the trial court

and defendant is the best way to ensure that a defendant’s

constitutional right . . . is protected, and that the defendant

has knowingly and voluntarily waived such a right.”            Id. at 12,

169 P.3d at 964.19

                                     X.

            As constituted in Hawai#i, requiring as part of the

colloquy, a specific inquiry of criminal defendants on their

right to a jury trial would not, in effect, be foreign to our

procedure at all.     Instead, it would be a salutary measure to

effectuate the guidance that has existed in this jurisdiction



      19
            Moreover, a number of other jurisdictions require a specific
colloquy in the context of a waiver of the right to a jury trial. In
Pennsylvania, for example, “[p]rior to accepting a defendant’s waiver of his
right to a jury trial, the trial court must conduct a colloquy wherein it
apprises the defendant of the three essential elements of a jury trial: that
the jury would be selected from members of the community; that the verdict
must be unanimous; and that the defendant would be allowed to participate in
the selection of the jury.” Comm. v. Hughes, 639 A.2d 763, 772 (Pa. 1994)
(citing Comm. v. Williams, 312 A.2d 597 (1973)). Similarly, “as a matter of
judicial administration,” the Wisconsin supreme court has imposed the
requirement that “a circuit court in a criminal case must advise the defendant
that the court cannot accept a jury verdict that is not agreed to by each
member of the jury.” State v. Resio, 436 N.W.2d 603, 607 (Wis. 1989); see
State v. Anderson, 638 N.W.2d 301, 306 (Wis. 2002) (affirming this
requirement).

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since Friedman was decided in 2000.        See Friedman, 93 Hawai#i at

69, 996 P.2d at 274.

            If the court fails to advise the defendant in

accordance with this four-part inquiry, then the defendant’s

waiver of the right to trial by jury would be deemed invalid

unless the prosecution can show that the error was harmless

beyond a reasonable doubt with respect to the defendant’s waiver

of his or her right to a jury trial.        That is, the State must

then show that there is no reasonable possibility that the error

might have contributed to the defendant’s waiver of his or her

right.    See State v. Schnabel, 127 Hawai#i 432, 450, 279 P.3d

1237, 1255 (2012).    However, if the court’s colloquy includes

this advisement, the defendant’s waiver will be presumptively

valid, and the defendant must show, by a preponderance of the

evidence, that his or her waiver was involuntary.           See Friedman,

93 Hawai#i at 69, 996 P.2d at 274 (citing Ibuos, 75 Haw. at 121,

857 P.2d at 578).

            It is not difficult to foresee that courts will

continue to be faced in the future with similar questions as to

the validity of jury trial waivers.        The frequency with which

this issue has arisen indicates that a specific inquiry should be

included in the colloquy with respect to the right to trial by

jury.    Just as this court, in Young, overruled Olivera’s holding

that defense counsel could waive the right to jury trial on

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behalf of their clients, similarly Friedman’s holding as to the

nonobligatory nature of the Duarte-Higareda four-part inquiry

should be overruled, in favor of the assurance that in every

case, the defendant’s right to a jury trial has been waived

knowingly, intelligently, and voluntarily.20

                                     XI.

            Despite the majority’s holding that such a four-part

inquiry is not required as part of the colloquy, individual

courts are free to institute such procedures to protect the jury

trial right and to avoid recurring appeals from disparate waiver

colloquies.    This may be easily accomplished, as set forth in

Valdez, 98 Hawai#i at 79, 42 P.3d at 656, and the Hawaii Criminal

Bench Book.

                                    XII.

            In accordance with the above, I would therefore hold

that Gomez-Lobato’s waiver of the right to jury trial was

insufficient in this case, and thus the March 15, 2011 judgment

of the court must be vacated, and the case remanded for a new

trial.    Furthermore, in my view, a trial court must engage the

     20
            The jury waiver advisement could be grounded in this court’s
supervisory powers, and accordingly, would be prospective in effect. See
State v. Cabagbag, 127 Hawai#i 302, 316, 277 P.3d 1027, 1042 (2012) (applying
this court’s holding regarding eyewitness instructions on a prospective
basis); see also Tachibana, 79 Hawai#i at 238, 900 P.2d at 1305 (holding that
“the colloquy requirement established . . . shall only apply prospectively to
cases in which the trial is not completed until after the date of [the]
decision.”); Lewis, 94 Hawai#i at 297, 12 P.3d at 1238 (“we now mandate that,
in trials beginning after the date of this opinion,” trial courts give
specific information to defendants prior to the start of trial).

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defendant in the on-the-record colloquy that includes a four-part

inquiry described herein, subject to harmless error review on

appeal.


                                     /s/ Simeon R. Acoba, Jr.




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