I respectfully dissent. (1)
This court has "advise[d] the trial court[s] to engage in . . . a colloquy to aid in ensuring voluntary waivers[]" of the right to jury trial. State v. Friedman, 93 Hawai`i 63, 69, 996 P.2d 268, 274 (2000). To "ensure[] voluntary waivers," trial courts have been urged to directly inform defendants that "(1) twelve members of the community compose a jury, (2) . . . defendant[s] may take part in jury selection, (3) . . . jury verdict[s] must be unanimous, and (4) the court alone decides guilt or innocence if . . . defendant[s] waive[] a jury trial." Id. (internal quotation marks and citations omitted). Despite this instruction, the first three fundamental points were not made in the trial court's colloquy with Defendant-Appellant Thomas K. Bush (Defendant) in the instant case and the express reference to guilt or innocence as decided by a judge alone in a judge trial was not conveyed by the trial court.
Additionally, here Defendant's own attorney was not present in court and obviously had not discussed the waiver of jury trial rights with Defendant. Rather, the jury trial waiver was taken in the presence of counsel whose status is uncertain and who ostensibly "appear[ed] on behalf of [Defendants' counsel]." At the beginning of the hearing, Defendant indicated he did not wish to waive a jury trial. After his case was passed and Defendant returned, he reiterated that he was confused. The court then embarked on an explanation that a judge only trial was the "same" as a jury trial except the judge, rather than a jury, decided "what factually happened." This case is to be contrasted with what occurred in Friedman. In that decision, this court was persuaded by the totality of the circumstances that Friedman's jury waiver was knowing, intelligent, and voluntary:
Friedman [did more than] simply acknowledge his right to a jury trial with a simple "yes"; rather, Friedman articulated to the trial court that "[a] jury trial is where the outcome of . . . whether its guilty or not is to be determined by the 12 adults instead of a judge." Additionally, the trial court specifically informed Friedman that a judge would be trying his case if he waived his jury trial right. The record also reflects that, at the arraignment, Friedman was represented by competent counsel, who informed the court that he had previously "explain[ed] to [Friedman] the differences between a jury trial and judge trial"; moreover, Friedman acknowledged his attorney's representation. Finally, Friedman affirmatively indicated to the trial court that his waiver of the right to a jury trial was voluntary and a result of his own reflection.Id. at 70, 996 P.2d at 275. Pivotal to affirmance in Friedman was the defendant's own articulation that a jury's unanimous verdict was required for conviction, Friedman's counsel's representation that counsel had explained the differences between that and a judge only trial to Friedman, and Friedman's confirmation of such advice. The benchmarks of a valid waiver found dispositive in Friedman are manifestly absent in the instant case.
As the defense emphasized in oral argument, the defective waiver here was evidenced by the lack of a judicial colloquy as to the four factors set out in Friedman and the other circumstances recounted above. The failure of the trial court to advise Defendant of the basic Friedman factors and the absence of any reference to those factors in the record sufficed to establish that the waiver was not knowing or intelligent. The defense's argument concerning other circumstances that highlighted and contributed to this conclusion, such as the absence of Defendant's retained counsel and Defendant's expression of confusion, was not a "conce[ssion]" that the lack of a Friedman colloquy was not the decisive factor. Rather, the defense's argument was that "salient facts" (2) demonstrating the absence of an intelligent and knowing waiver by Defendant were, in comparison with Friedman, abundant in this case. On the record, the totality of the circumstances in this case mandates vacation of the judgment of conviction and a new trial.
I note (1) that requiring a waiver-of-jury-trial colloquy would remove many issues raised in these cases and (2) that the prosecution agreed in oral argument that a required colloquy would alleviate its burden at trial. The questions raised in this appeal will continue to arise in future cases unless the colloquy is made mandatory. The trial courts have not universally heeded the approbation that they "should" follow the colloquy. See Friedman, 93 Hawai`i at 69, 996 P.2d at 274; State v. Valdez, 98 Hawai`i 77, 79, 42 P.3d 654, 656 (2000). Although a particular case may present waiver issues apart from that included in the colloquy, that does not detract from the benefits of a colloquy in open court. If a mandatory colloquy as set forth in Friedman were implemented, voluntary, knowing, and intelligent waivers by defendants would be substantially ensured, the trial courts' ascertainment of defendants' waivers would be facilitated, and appeals premised on defendants' defective waiver claims would be curtailed.
Our penal procedure rules require that the trial courts impart advice or instructions to defendants in other similar instances. See Valdez, 98 Hawai`i at 78-79, 42 P.3d at 655-56. See, e.g., Hawai`i Rules of Penal Procedure (HRPP) Rule 11(c) (2000) (mandating trial court to address defendant personally in open court before court accepts guilty plea); HRPP Rule 11(e) (2000) (requiring trial court to inform defendant that court is not bound by plea agreement); HRPP Rule 10 (2000) (directing circuit court to read charge to defendant and calling on defendant to plead); HRPP Rule 10.1 (2000) (establishing that, upon defendant's initial appearance before trial court, it shall inform and advise defendant of his or her rights). We have also directed that trial courts render advice to defendants regarding their right to testify. Tachibana v. State, 79 Hawai`i 226, 236, 900 P.2d 1293, 1303 (1995) (holding that "in order to protect the right to testify under the Hawai`i Constitution, 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" (footnotes omitted)), In that vein, in the absence of a direction by this court, a jury trial colloquy should be mandated in an amendment to the Hawaii Rules of Penal Procedure. Cf. In re Attorney's Fees of Mohr, 97 Hawai`i 1, 14-16, 32 P.2d 647, 660-662 (2001) (Acoba, J., concurring in part and dissenting in part) (recommending that the Hawai`i State Bar Association advocate an increase in the appointed counsel fee schedule); Id. at 12, 32 P.2d at 658 (Ramil, J., concurring) (stating "I strongly urge the Hawai`i legislature to increase the hourly rate paid to court-appointed private counsel"); State v. Arceo, 84 Hawai`i 1, 38, 928 P.2d 843, 880 (1996) (Nakayama, J., dissenting) (urging "the Hawai`i legislature to enact a 'continuous sexual abuse of a child' statute[,]" similar to a California statute).
For the foregoing reasons, I would vacate the judgment herein and remand
the case for a new trial.
1. Again, a majority of this court refuses to publish, despite requests to do so. See e.g., State v. Makalii, No. 24833 (Oct. 2, 2002) (SDO) (Ramil, J., dissenting, joined by Acoba, J.); State v. Lopes, No. 24187 (Sept. 6, 2002) (SDO) (Acoba, J., concurring, joined by Ramil, J.).
In my view, this opinion should be published. As a court of last resort, we should endeavor to provide as much guidance as possible to the parties, counsel, and the trial courts. See Zanakis-Pico v. Cutter Dodge, Inc., 98 Hawai`i 309, 326 n.1, 47 P.3d 1222, 1239 n.1 (2002) (Acoba, J., concurring). In that regard, Justice Ramil has proposed a rule which would require publication of a case at the request of one justice. Thus, a decision would be published when the case is decided by unanimous decision, if, "[a]fter an exchange of views," any single justice votes for publication; or for publication of opinions "with a dissent or with more than one opinion . . . unless all participating judges decide against publication." Doe v. Doe, No. 22172, slip op. at 5 (July 17, 2002) (Ramil, J., dissenting) (quoting Rule 36(b)(2) of the United States Court of Appeals of the First Circuit) (emphasis added).
Nothing highlights the inefficacy of a "majority rules" approach to publication more than the proposal submitted to this court to amend Hawai`i Rules of Appellate Procedure (HRAP) Rule 35 to permit (1) citation to unpublished opinions as persuasive authority and (2) petitions for publication of unpublished cases. On June 14, 2002, the Hawai`i Chapter of the AJS submitted the "Report of the AJS Committee Reviewing Unpublished Opinions" (the Report) to the justices of the Hawai`i Supreme Court for our consideration. The proposal recommends that this court adopt an amendment to HRAP Rule 35, because "[t]here is a problem perceived by the legal community with the continued use of summary disposition orders and, particularly, the inability to cite memorandum opinions despite the fact that these opinions appear to be of substantial length and content and often cite other case law as precedent for the conclusions." The Report at 4 (emphasis added). The consequences of not publishing have thus become a concern to the bench and the bar.
The dissatisfaction with the number of unpublished opinions is also one reason why the State legislature was prompted to authorize two additional judges on the Intermediate Court of Appeals (ICA) level. In 2001, the legislature authorized two additional judges to be appointed to the ICA, in view of the appellate case load. See 2001 Haw. Sess. L. Act 248, §1, at 646 (amending Hawaii Revised Statutes (HRS) § 602-51 to indicate that the number of judges on the ICA would be increased by two). In considering whether such a measure was necessary, the legislature viewed the additional judges as one remedy for the burgeoning use of summary disposition orders, which apparently prompted some parties "to question whether [they were] getting due process[]":
Attempts to deal with the appellate case load have evolved into procedures and processes that have been viewed as controversial, causing some litigants to question whether the parties are getting due process. For example, a large number of cases were decided by summary disposition orders instead of opinion, and oral argument has become rare. . . . [I]f the State is to maintain an effective appellate justice system that disposes of cases in a timely manner and provides litigants with a fair hearing process, the number of ICA judges must be increased.Stand. Comm. Rep. No. 1460, in 2001 House Journal, at 1495 (emphasis added). The legislators further indicated that such a measure would "improve the functioning and efficiency of the appellate judicial process." Conf. Comm. Rep. No. 166, in 2001 House Journal, at 1129.
2.. The majority's
approach, resting as it does on a search for a "salient fact" or "salient
facts" presumably sufficient to determine the waiver question, is logically
inconsistent with a totality of circumstances evaluation.