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NO. CAAP-20-0000755

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

JOHNNY TORRES, also known as Johnny J. Torres 

and/or Johnny Torres, Jr., Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(CASE NO. 1FFC-20-0000768)

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

Defendant-Appellant Johnny Torres, also known as Johnny

J. Torres and/or Johnny Torres, Jr. (Torres), appeals from the

Judgment of Conviction and Sentence; Notice of Entry (Judgment),

entered on December 4, 2020, in the Family Court of the First

Circuit (Family Court).1/ Following a bench trial, Torres was

convicted of Refusal to Comply with a Lawful Order of a Police

Officer, in violation of Hawaii Revised Statutes (HRS)

§ 709-906(1) and (4).2/

1/ The Honorable Linda S. Martell presided.

2/ HRS § 709-906 (2014) provides, in relevant part:

(1) It shall be unlawful for any person . . . to physically

abuse a family or household member or to refuse compliance

with the lawful order of a police officer under subsection

(4). . . .

. . . .

(4) Any police officer, with or without a warrant,

shall take the following course of action, regardless of

whether the physical abuse or harm occurred in the officer's

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000755

13-JUN-2022

07:45 AM

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On appeal, Torres contends that the Family Court

violated his constitutional right to testify by failing to

conduct a proper pre-trial advisement under State v. Lewis, 94

Hawai#i 292, 12 P.3d 1233 (2000), and a proper ultimate colloquy

under Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995). 

Upon careful review of 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, we

resolve Torres's contentions as follows, and vacate the Judgment.

Torres contends that the pretrial advisement under

Lewis and the ultimate colloquy under Tachibana were deficient

because the Family Court failed to engage Torres in a true

colloquy to ensure he understood his right to testify. 

The State concedes that the Family Court erred in

failing to conduct adequate Lewis and Tachibana colloquies, and

does not contend that the error was harmless. Although we are

not bound by it, we must also "give due consideration" to the

State's concession of error, as "[a] prosecutor's confession,

although not binding on an appellate court, is 'entitled to great

weight.'" State v. Eduwensuyi, 141 Hawai#i 328, 337, 409 P.3d

732, 741 (2018) (quoting Territory v. Kogami, 37 Haw. 174, 175

(Haw. Terr. 1945)).

The validity of a defendant's waiver of the right to

testify in a criminal case is a question of constitutional law

2/ (...continued)

presence:

. . . .

(b) If the person who the police officer reasonably

believes to have inflicted the abuse is eighteen

years of age or older, the police officer

lawfully shall order the person to leave the

premises for a period of separation, during

which time the person shall not initiate any

contact, either by telephone or in person, with

the family or household member. . . 

. . . .

(e) If the person so ordered . . . returns to the

premises before the expiration of the period of

separation . . . , the person shall be placed

under arrest for the purpose of preventing

further physical abuse or harm to the family or

household member[.] 

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reviewed by this court under the right/wrong standard. State v.

Celestine, 142 Hawai#i 165, 169, 415 P.3d 907, 911 (2018). In

State v. Martin, 146 Hawai#i 365, 463 P.3d 1022 (2020), the

Hawai#i Supreme Court summarized the relevant case law as

follows:

Our law protects both the right to testify and the

right not to testify. State v. Celestine, 142 Hawai#i 165,

169, 415 P.3d 907, 911 (2018). Tachibana v. State, 79

Hawai#i 226, 900 P.2d 1293 (1995), established the

requirement that when a defendant in a criminal case

indicates an intention not to testify, the trial court must

advise the defendant of the right to testify and must obtain

an on-the-record waiver of the right. 79 Hawai#i at 236,

900 P.2d at 1303. We stated that this advisement should

consist of informing the defendant (1) that they have a

right to testify, (2) that if they want to testify, no one

can prevent them from doing so, and (3) that if they

testify, the prosecution will be allowed to cross-examine

them. 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. We also

stated that in connection with the privilege against

self-incrimination, the defendant should also be advised (4)

that they have a right not to testify and (5) that if they

do not testify, then the jury can be instructed about that

right. Id. (citations omitted). In a bench trial,

defendants must be advised that if they exercise their right

not to testify, no inference of guilt may be drawn for

exercising this right, i.e., that a decision not to testify

cannot be used against a defendant by the judge in deciding

the case. State v. Monteil, 134 Hawai#i 361, 371-72, 341

P.3d 567, 577-78 (2014).

After Tachibana, we also held that a second component

of the Tachibana colloquy involves the court engaging in a

true "colloquy" with the defendant. Celestine, 142 Hawai#i

at 170, 415 P.3d at 912, citing State v. Han, 130 Hawai#i

83, 90-91, 306 P.3d 128, 135-36 (2013). This requires "a

verbal exchange between the judge and the defendant 'in

which the judge ascertains the defendant's understanding of

the proceedings and of the defendant's rights.'" Celestine,

142 Hawai#i at 170, 415 P.3d at 912 (citing Han, 130 Hawai#i

at 90, 306 P.3d at 135 (emphasis omitted)).

. . . . 

A defendant's right to testify is violated when the

colloquy does not establish "an objective basis for finding

that the defendant knowingly, intelligently, and voluntarily

gave up" their right to testify. Han, 130 Hawai#i at 91,

306 P.3d at 136. Courts look to the totality of the facts

and circumstances to determine whether a waiver of the right

to testify was voluntarily and intelligently made. 130

Hawai#i at 89, 306 P.3d at 134.

Id. at 378-79, 463 P.3d at 1035-36 (footnotes and brackets

omitted).

Additionally, in Lewis, the supreme court adopted a

prospective requirement that, "prior to the start of trial, trial

courts must '(1) inform the defendant of his or her personal

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right to testify or not to testify and (2) alert the defendant

that if he or she has not testified by the end of the trial, the

court will briefly question the defendant to ensure that the

decision not to testify is the defendant's own decision.'" 

Monteil, 134 Hawai#i at 371, 341 P.3d at 577 (quoting Lewis, 94

Hawai#i at 297, 12 P.3d at 1238).

We find dispositive Torres's contention that the Family

Court failed to conduct a proper ultimate colloquy under

Tachibana. In particular, the Family Court failed to engage

Torres in a "true colloquy" before the defense rested.3/ Martin,

3/ After the State rested, the Family Court advised Torres as

follows:

THE COURT: . . . . 

. . . Mr. Torres[,] . . . you have a constitutional

right to testify in your own defense.

Although you should talk with your attorney before

deciding whether or not to testify, it is your personal

right and no one can prevent you from testifying should you

choose to do so. But if you do choose to testify, you have

to know the prosecutor can ask you questions about your

testimony on cross-examination.

You also have a constitutional right to remain silent

and not to testify. If you choose not to testify, I can't

hold this against you in any way in deciding the case. 

So we're at that point in the trial where I'm

questioning you whether you want to testify or not, and if

you wanna talk with your attorney, you can do that too. I'm

not trying to rush you. But you just have to be aware of

the colloquy, the questions. Okay?

Do you need to talk to [Defense Counsel]?

THE DEFENDANT: Yes, ma'am, Your Honor.

THE COURT: Okay. . . . 

[Two-minute recess taken.]

. . . .

THE COURT: All right. Please be seated. 

So, [Defense Counsel], what is your client going to

do?

[DEFENSE COUNSEL]: Judge, he would exercise his right

to remain silent.

THE COURT: Okay. So, Mr. Torres, this is your

choice, correct?

(continued...)

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146 Hawai#i at 378, 463 P.3d at 1035 (citing Celestine, 142

Hawai#i at 170, 415 P.3d at 912). Although the Family Court

advised Torres regarding his rights to testify and not to

testify, it failed to engage him in a verbal exchange to

ascertain his understanding of the proceedings and of his rights. 

See id. 

"Once 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." Tachibana, 79 Hawai#i at 240, 900 P.2d at

1307. Here, the State does not contend, and we cannot conclude,

that the violation was harmless beyond a reasonable doubt. See

State v. Hoang, 94 Hawai#i 271, 279, 12 P.3d 371, 379 (App. 2000)

("In general, it is inherently difficult, if not impossible, to

divine what effect a violation of the defendant's constitutional

right to testify had on the outcome of any particular case.").

For these reasons, we vacate the Judgment of Conviction

and Sentence; Notice of Entry, entered on December 4, 2020, in

3/ (...continued)

THE DEFENDANT: Yes, ma'am.

THE COURT: And nobody's forcing you one way or

another?

THE DEFENDANT: Yes, ma'am.

THE COURT: And your mind is clear?

THE DEFENDANT: Yes, ma'am.

THE COURT: Okay. Very good.

All right.

[DEPUTY PROSECUTING ATTORNEY]: Your Honor, I'm sorry.

. . . [A]ren't there a couple more questions in the

Tachibana colloquy?

THE COURT: A couple more questions?

Okay. Is this your personal decision, Mr. Torres?

Not to testify, is that correct?

THE DEFENDANT: Yes, ma'am, Your Honor.

THE COURT: Okay. And is anybody forcing you,

threatening you, coercing you, or pressuring you not to

testify?

THE DEFENDANT: No, ma'am, Your Honor.

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the Family Court of the First Circuit. We remand the case for a

new trial and for further proceedings consistent with this

Summary Disposition Order. 

DATED: Honolulu, Hawai#i, June 13, 2022.

On the briefs:

Walter J. Rodby

for Defendant-Appellant.

Donn Fudo,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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