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