Upon carefully reviewing the record and the briefs submitted and having given due consideration to the issues raised and arguments advanced, we hold that: (1) the circuit court did not err in admitting testimony about Kahapea's gambling activity, inasmuch as (a) the casino representatives' testimony established the required foundation for the admissibility of the casino records, which detailed Kahapea's gambling history, by explaining that the records were kept in the ordinary course of the casinos' business and made at or near the time Kahapea gambled, and, therefore, the testimony relating the contents in the casino records was admissible under the "business records" exception to hearsay, see Hawai`i Rules of Evidence (HRE) Rule 803(b)(6), (b) the testimony did not violate Kahapea's right to confront adverse witnesses, see State v. Sua, 92 Hawai`i 61, 987 P.2d 959 (1999), (c) Kahapea failed to demonstrate how the testimony was irrelevant and prejudicial to him, and (d) the casino representatives had personal knowledge of the information they relied upon to testify about Kahapea's gambling history, see HRE Rule 602; (2) Kahapea's defense counsel did not render constitutionally ineffective assistance, inasmuch as Kahapea failed to demonstrate that defense counsel's failure to obtain a copy of the investigative grand jury transcript and object to testimony about Kahapea's gambling activity as hearsay reflected defense counsel's lack of skill, judgment, or diligence demanded of attorneys in criminal cases and resulted in the withdrawal or substantial impairment of a potentially meritorious defense, see Adams v. State, 103 Hawai`i 214, 81 P.3d 394 (2003); State v. Poaipuni, 98 Hawai`i 387, 49 P.3d 353 (2002); and (3) Kahapea voluntarily, knowingly, and intelligently waived his right to testify in his own defense, inasmuch as (a) the circuit court informed Kahapea of his constitutional right to testify and elicited an on-the-record waiver of his right, as required by Tachibana v. State, 79 Hawai`i 226, 900 P.2d 1293 (1995), (b) Kahapea affirmed his understanding of his right to testify, and (c) the record does not indicate that the recorded responses were an inaccurate reflection of what was said during the colloquy or that Kahapea was unable to understand the trial judge's statements, see id.; State v. Lewis, 94 Hawai`i 292, 12 P.3d 1233 (2000). Therefore,
IT IS HEREBY ORDERED that the circuit court's October 19, 2000 judgment of guilty conviction and sentence, from which the appeal is taken, is affirmed.
DATED: Honolulu, Hawai`i, October 6, 2004.
On the briefs:
Edward K. Harada,
Deputy Public Defender,
for the defendant-
appellant Michael Kahapea
I concur in the result. (J. Acoba)