DISSENTING OPINION OF LIM, J.

I respectfully dissent for the reasons set forth in Justice Nakayama's concurring and dissenting opinion in Tachibana v. State, 79 Hawaii 226, 241, 900 P.2d 1293, 1308 (1995):

The right not to testify is among the

fundamental and personal rights recognized by

the Constitution. If anything, one would

expect the right not to testify to be more

zealously guarded than the right to testify.

An uninformed defendant probably expects to

testify and may be unaware how strongly the Constitution protects his [or her] right not

to testify. Yet the trial court has no duty to

make a sua sponte inquiry to advise the

defendant of his [or her] right not to

testify and to ensure that its waiver was

knowing and intelligent. Rather, the

defendant by taking the stand waives this

significant right even though the record

gives no explicit assurance that this waiver

was knowing and intelligent.

(quoting United States v. Martinez, 883 F.2d 750, 756-57 (9th Cir. 1989)) (internal quotation marks and citations omitted).

Hence I would require a "Tachibana colloquy" where the defendant chooses to testify, as well as where the defendant chooses not to testify. Also analogously, I would find a violation of the right to remain silent based solely on the lack of such a colloquy. Cf. Tachibana, 79 Hawaii at 237-38, 900 P.2d at 1304-5 ("[i]f our holding in this case were to apply retrospectively, we would be compelled to affirm the circuit court's conclusion that Tachibana's right to testify was violated based solely on the lack of such a colloquy").

In this case, we have no real way of knowing the result had Ortiz chosen to remain silent as a result of a personal colloquy with the trial court regarding his right to remain silent. We do know, however, that he admitted to a severe beating of the complaining witness just "to shut her up," which could hardly have endeared him to the jury. Under the circumstances, I cannot conclude that the lack of such a colloquy was harmless beyond a reasonable doubt, cf. Tachibana, 79 Hawaii at 240, 900 P.2d at 1307 ("[o]nce a violation of the constitutional right to testify is established, the conviction must be vacated unless the State can prove that the violation was harmless beyond a reasonable doubt") (citations omitted), and hence would vacate the judgment and remand for a new trial.



Associate Judge