NO. 24808
 
 

IN THE SUPREME COURT OF THE STATE OF HAWAI`I


STATE OF HAWAI`I, Plaintiff-Appellee,

vs.

THOMAS K. BUSH, Defendant-Appellant.


APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-CR. NO. 01-1-2361)
 

SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, and Nakayama, JJ., and
Ramil, and Acoba, JJ., dissenting separately)

The defendant-appellant Thomas K. Bush appeals from the judgment of the family court, the Honorable Marilyn Carlsmith presiding, filed on November 1, 2001, convicting him of and sentencing him for multiple violations of an order for protection (Counts I-III), pursuant to Hawai`i Revised Statutes (HRS) §§ 586-5.5 (Supp. 2001) and 586-11(a)(1)(A) (Supp. 2001). On appeal, Bush argues that the family court erred in failing to obtain a knowing, intelligent, and voluntary waiver of his constitutional and statutory right to a jury trial.

Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, (1) we affirm the judgment of the family court. Under the totality of the circumstances, Bush has not met his burden of demonstrating by a preponderance of the evidence that his waiver was involuntary. See State v. Friedman, 93 Hawai`i 63, 69, 966 P.2d 268, 274 (2000); State v. Valdez, 98 Hawai`i 77, 78-79, 42 P.3d 654, 655-56 (App. 2002).  In this connection, Bush conceded in oral argument that the voluntariness of his waiver would, of necessity, have been determined by the totality of the circumstances even if the family court had engaged him in the colloquy described and "advised" in Friedman, 93 Hawai`i at 69, 966 P.2d at 274. Moreover, Bush has failed to establish any "salient facts" relating to his ability to comprehend his jury waiver, which would have necessitated an extensive colloquy by the family court. Id. at 69-70, 966 P.2d at 274-75. Therefore,

IT IS HEREBY ORDERED that the judgment from which the appeal is taken is affirmed.

DATED: Honolulu, Hawai`i, October 11, 2002.
 

Karen T. Nakasone (Joyce K.
Matsumori-Hoshijo with her
on the brief), Deputy Public
Defenders, for the defendant-
appellant, Thomas K. Bush

Alexa D. M. Fujise, (Deputy
Prosecuting Attorney), for
the plaintiff-appellee
State of Hawai`i
 

1.     Oral argument in this case was held on September 4, 2002.