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Hawai’i Supreme Court Announces New Rule Requiring Tachibana Colloquy in All Trials

by Douglas Ankney

The Supreme Court of Hawai’i announced a new rule beginning April 10, 2019, that all trial courts are required to conduct an on-the-record colloquy regarding the right to testify or to not testify when either right is waived to determine if the defendant knowingly, intelligently, and voluntarily waived his or her right, “effectively making such a colloquy necessary in every trial.”

Rinaldo J. Torres, Jr. waived his right to a jury trial on charges of first-degree robbery and first-degree terroristic threatening. At the ensuing bench trial, Satoshi Tokunaga identified Torres as the man who pointed a gun at him while attempting to take his bag. The two men fought, and Torres dropped the gun. Torres retrieved the gun and fled when security guard Elliott Aki arrived. Aki also identified Torres. The entire incident was captured on video.

Torres testified that he had agreed to sell some marijuana to Tokunaga. But when he opened his bag to show Tokunaga the marijuana, Tokunaga punched him in the eye. Torres stated he fell to the floor, and his pellet gun fell out of the bag. The two men fought, and he left when a crowd of people formed. After the court found him guilty, Torres appealed — arguing, inter alia, that the court erred by failing to give him a pretrial advisement of his right not to testify. The Intermediate Court of Appeals (“ICA”) affirmed, and the Supreme Court of Hawai’i granted further review.

The Supreme Court ruled that pursuant to State v. Lewis, 12 P.3d 1233 (Haw. 2000), the circuit court erred when it failed to give the pretrial advisement. However, the Court went on to hold that the error was harmless because the evidence against Torres would have resulted in his conviction even if he had received the advisement and elected not to testify. Tachibana v. State, 900 P.2d 1293 (Haw. 1995).

But the Court then held that in all prospective trials, trial courts are required to conduct a colloquy when a defendant elects to testify. The reasoning stems from the fact that a criminal defendant has an absolute right not to testify. Salinas v. Texas, 570 U.S. 178 (2013). This right is explicitly guaranteed by the Fifth and Fourteenth Amendments of the U.S. Constitution, as well as by article I, section 10 of the Hawai’i Constitution. State v. Monteil, 341 P.3d 567 (Haw. 2014). It is a foundational right of equal stature with the right to testify. Ferguson v. Georgia, 365 U.S. 570 (1961).

But the Court found that under current procedures the right to testify was afforded more protection than the right not to testify. That is, whenever a defendant elected not to testify, Tachibana requires trial courts to conduct a colloquy to ensure the defendant was aware of the right to testify and ensure that the defendant was knowingly, intelligently, and voluntarily waiving that right. But in those reciprocal instances where a defendant elected to testify, Tachibana does not require a colloquy to determine if the defendant was aware of the right not to testify or ensure the right was knowingly, intelligently, and voluntarily waived. The Court extended the procedures from Tachibana to include those reciprocal instances where a defendant elects to testify. A colloquy will ensure that the defendant is aware of the right not to testify. And the colloquy will ensure that the right is knowingly, intelligently, and voluntarily waived.

The Court observed that an additional benefit will be that defendants cannot claim in an appeal or on a collateral attack that they did not knowingly waive the right.

Accordingly, the Court affirmed the judgment of the ICA but announced that in all prospective trials, courts are instructed to conduct a Tachibana colloquy. See: State v. Torres, 439 P.3d 234 (Haw. 2019). 

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