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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

STATE OF HAWAIʻI, 

Respondent/Plaintiff-Appellee, 

vs. 

KEVIN PAUL KIM, 

Petitioner/Defendant-Appellant. 

SCWC-14-0000833 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-14-0000833; CR. NO. 12-1-0363) 

JUNE 29, 2017 

NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ., WITH 

RECKTENWALD, C.J., CONCURRING SEPARATELY 

OPINION OF THE COURT BY POLLACK, J. 

This case concerns a challenge by Kevin Paul Kim 

regarding the validity of his waiver of the right to testify at 

trial. Kim also contends that the trial court’s warnings to him 

Electronically Filed

Supreme Court

SCWC-14-0000833

29-JUN-2017

09:26 AM
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during trial intimidated him and influenced his decision not to 

testify. We hold that the record does not support a conclusion 

that Kim’s waiver of the right to testify was voluntarily, 

intelligently, and knowingly made. Thus, we need not resolve 

whether the trial court’s statements influenced Kim’s decision 

not to testify, but in light of Kim’s contention we provide 

guidance on this issue. 

I. BACKGROUND 

A. General Overview 

 On March 5, 2012, the State filed a complaint against 

Kevin Paul Kim in the Circuit Court of the First Circuit 

(circuit court), alleging the following four counts: count 1, 

burglary in the first degree, in violation of Hawaii Revised 

Statutes (HRS) § 708-810(1)(c);1

 count 2, terroristic threatening 

in the second degree, in violation of HRS § 707-717;2

 count 3, 

assault in the third degree, in violation of HRS § 707-

 1

 A person commits the offense of burglary in the first 

degree if the person intentionally enters or remains 

unlawfully in a building, with intent to commit therein a 

crime against a person or against property rights, and: . . 

. [t]he person recklessly disregards a risk that the 

building is the dwelling of another, and the building is 

such a dwelling. 

HRS § 708-810(1)(c) (1993). 

2

 “A person commits the offense of terroristic threatening in the 

second degree if the person commits terroristic threatening other than as 

provided in section 707-716.” HRS § 707-717(1) (1993). 
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712(1)(a);3 and count 4, criminal property damage in the fourth 

degree, in violation of HRS § 708-823.4 The allegations in 

counts 1, 2, and 3 concerned an interaction between Kim and the 

complaining witness on February 23, 2012. Count 4 involved an 

incident alleged to have occurred on February 21, 2012. 

 A jury trial took place in February 2014, nearly two 

years after the occurrence of the incidents in this case.5 

B. Advisement at Beginning of Trial 

 On the first day of trial, the circuit court discussed 

the right to testify with Kim. Kim indicated that he had not 

yet made up his mind about whether he wanted to testify: 

 THE COURT: Mr. Kim -- our panel is not here -- you 

have a constitutional right, Mr. Kim, to testify in your 

own defense at the trial which we’re about to begin. 

 Now, you should talk with your lawyer and anybody 

else you want to talk with about this decision to testify, 

but this must be your decision. And if you decide you want 

to testify, nobody can stop you from testifying. If you 

decide to testify, the prosecution will be given a chance 

to question you. 

 You also have a constitutional right not to testify 

but rather to remain silent. Again, talk with whomever you 

wish to talk with, of course including your lawyer, about 

this decision, but this decision must be yours. And if you 

 3

 “A person commits the offense of assault in the third degree if 

the person: . . . [i]ntentionally, knowingly, or recklessly causes bodily 

injury to another person . . . .” HRS § 707-712(1)(a) (1993). 

4

 “A person commits the offense of criminal property damage in the 

fourth degree if by means other than fire, the person intentionally or 

knowingly damages the property of another without the other’s consent.” HRS 

§ 708-823 (1993 & Supp. 2006). 

5

 The Honorable Karen S.S. Ahn presided. 
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decide you don’t want to testify nobody, including your 

only lawyer, can force you to testify. 

 If you decide to testify I will instruct the jury 

that it cannot hold your silence against you when it 

decides your case. Whatever your decision is by the end of 

trial I am going to briefly question you and the only 

objective is to make sure that you understand all of these 

rights and that your decision, whatever it is, was your 

decision, okay, you understand? 

 THE DEFENDANT: Kind of, yeah. 

 THE COURT: Well, do you have any questions? 

 THE DEFENDANT: No, not really. I haven’t made my 

mind up yet. 

 THE COURT: That’s fine. And well if you have any 

questions, now is the time to ask because it’s very 

important that you understand these two rights that nobody 

can force you to do what you don’t want to do. And that if 

you decide to testify, the prosecution will be given a 

chance to question you. And if you don’t testify, you 

decide you don’t want to testify, I’m going to instruct the 

jury that it cannot hold your silence against you because 

that is your right, okay? 

 THE DEFENDANT: Yes. 

 THE COURT: So I want you to understand all of this. 

Do you have any questions about anything? 

 THE DEFENDANT: Oh, I’ve got tons of questions. 

 [DEFENSE COUNSEL]: I’ll address them, Your Honor. 

 THE COURT: Okay. Do you have any questions about 

what you and I have just talked about? 

 THE DEFENDANT: No, Your Honor. 

 THE COURT: Okay. Do you understand what you and I 

have talked about? 

 THE DEFENDANT: Yes. 

The State’s evidence consisted of testimony from three 

investigating Honolulu Police Officers; testimony of the 

complaining witness, Daniel Lewis; and photographs of Lewis’s 
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home and his injuries after the incident. Lewis testified at 

trial that he was friends with Kim and Kim’s former girlfriend, 

Jennifer Jimenez. At the time of the two incidents, Jimenez was 

living with Lewis at his home because Kim had broken up with 

Jimenez two weeks earlier. Lewis testified that, late in the 

evening on February 21, 2012, the tires of his vehicle had been 

cut “on [the] sidewalls so they couldn’t be repaired.” From his 

bedroom window, Lewis saw Kim bend down near his car tires and 

then walk around to the other side of the car. 

 Most of Lewis’s testimony, however, was regarding the 

incident on the morning of February 23, 2012. Lewis testified 

that Kim came to his home and first attempted to force his entry 

through the back door, which is a sliding glass door that was 

partially open but secured by a wooden dowel. According to 

Lewis, Kim stuck his arm through the door and made “glancing 

blows” to his shoulder and head, preventing him from closing the 

door. Lewis testified that he then instructed Kim to go to the 

front door where he opened the door to let Kim enter to stop Kim 

from damaging the structure. Lewis had not told the police that 

he had allowed Kim to enter through the front door. 

 Lewis testified that, when he opened the door to Kim, 

Kim attacked him with a large stick, jabbing him in his 

midsection, and knocking him off his feet. According to Lewis, 
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he attempted to prevent Kim from hitting him by holding on to 

the stick and that Kim also punched and kicked him. Lewis 

explained that Jimenez eventually physically broke them up by 

grabbing hold of Kim and guiding him toward the driveway to 

leave. Lewis testified that he and Kim were yelling obscenities 

at each other, he then verbally challenged Kim, and Kim attacked 

Lewis again. Jimenez again broke them up, and Jimenez and Kim 

proceeded to leave. 

Lewis acknowledged that he was under probationary 

supervision, and he also referenced his intimate relationship 

with Jimenez and indicated that, at the time of the incident, he 

wanted Jimenez to be his girlfriend. Lewis stated that he 

attempted to and desired to withdraw his complaint before the 

trial. 

 An investigating officer testified that she attempted 

to contact Jimenez, who was present when the incident occurred 

on February 23, 2012. However, the officer did not make contact 

with Jimenez and was unable to get a statement from her. The 

officer who responded to Lewis’s call to the police testified 

that he believed he questioned Lewis’s neighbors. But, he was 

unable to locate a witness on the cul-de-sac where Lewis’s home 

is located who had seen or heard screaming or banging on a side 

of a house. 
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C. Warning to Kim After Jury Selection 

 Following jury selection on the first day of trial, 

the circuit court warned Kim to “use a poker face” and to not 

smile and shake his head at certain questions: 

 THE COURT: Counsel and defendant are present, our 

jury has left the courtroom. 

 Mr. Kim, you need to use a poker face. No clapping 

at the end of the selection of the jury. 

 THE DEFENDANT: It’s very emotional. I understand. 

 THE COURT: No smiling and shaking your head at 

certain questions. I mean, you know, the jury is watching 

you. And you may think that this is a positive thing for 

you. But you don’t know, they may be looking at it and 

thinking -- coming to negative conclusions and you don’t 

want that, okay. So I’m going to require that everybody 

use a poker face, that’s real important in these cases. 

And what happens at counsel table is not evidence, all 

right? 

D. Warning to Kim During Cross-Examination of Lewis 

 The following day, during cross-examination of Lewis, 

defense counsel sought to impeach Lewis with a prior 

inconsistent statement regarding Kim’s purpose in coming to 

Lewis’s home on February 23, 2012. Previously, Lewis told an 

investigating officer that he felt threatened by Kim and that 

Kim was attempting to enter the house to “get at” Jimenez. 

Lewis testified at trial, however, that he initially did not 

think that Kim would attack him and that Kim did not mean to 

harm Jimenez but only to “retrieve her.” During this line of 

questioning, the court asked both counsel to approach the bench; 
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defense counsel was instructed to tell Kim to “stop making 

faces”: 

 THE COURT: You’re going to have to tell your client 

to stop making faces. He’s doing things like that where 

I’m going to – I’m going to say something in front of the 

jury. 

 . . . 

 [DEFENSE COUNSEL]: He’s a very emotional man. 

 THE COURT: There’s something wrong with him. 

 [DEFENSE COUNSEL]: He’s upset. 

 THE COURT: No, people are upset, but they, you know, 

they don’t do this. You tell him I’m going to tell him as 

soon as the jury leaves if he does that again I’m going to 

say it in front of the jury. 

 Defense counsel continued questioning Lewis regarding 

the incident and asked Lewis whether he had mentioned earlier in 

his testimony that Kim made a fist with the hand that he stuck 

through the door; Lewis confirmed that was his testimony. 

Defense counsel then proceeded to question Lewis regarding a 

preexisting injury that caused the index fingers on Kim’s hands 

to be different in size. After the prosecution made an 

objection, the court excused Lewis and the jury, and the court 

immediately spoke to Kim regarding his behavior. 

 THE COURT: . . . 

 Mr. Kim. 

 . . . 

 THE COURT: You can not [sic] be making faces in front 

of the jury, shaking your head or something. That is 
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inappropriate. Defendants do not act that way, most of 

them know better and I warned you yesterday. 

 THE DEFENDANT: Yes. 

 THE COURT: You’re doing it again today. After I -- 

some part of the testimony by Mr. Lewis you said you put up 

your fingers and tried to get your lawyer’s attention. 

 THE DEFENDANT: Yes, ma’am, I did that. 

 THE COURT: I think what you may have been trying to 

imply is that it’s so wrong I need to tell [Defense 

Counsel]. 

 THE DEFENDANT: Yes, that’s it. I don't know. 

 . . . 

 THE COURT: But you can not [sic] be trying to 

communicate to the jury that this is all ridiculous. As 

they were filing out you were holding your two hands palm 

down so that the jury could see them and I will not 

tolerate that. 

 THE DEFENDANT: Okay. 

 THE COURT: What is wrong? 

 THE DEFENDANT: Nothing is wrong. 

 THE COURT: It strikes me that something is wrong 

because you can’t follow instructions. 

 THE DEFENDANT: Your Honor, I’m not trying to 

disrespect you at all. 

 THE COURT: We’re trying to get a fair trial here. I 

don’t know what happened, it’s up to the jury to decide. 

 THE DEFENDANT: Right. 

 THE COURT: But your play acting I think is what I 

would really call it over there at counsel’s table is 

totally inappropriate. And you may think not so that you 

want to be acquitted, fine, I don’t blame you, but you 

cannot do this. You have to – there’s the proper 

administration of justice, we’re doing a trial, it’s up to 

the jury to decide on the evidence, not on the shaking of 

your head over there, you’re holding up your two hands so 

they can see it as they file out. That is, I mean, I think 

I am very close to I think being able to eject you from 

this courtroom. 
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 THE DEFENDANT: It’s very hard to be here, Your Honor. 

I am very excited when he says something that’s genuine. 

 THE COURT: Well, genuine from your point of view? 

 THE DEFENDANT: Yes. 

 THE COURT: You’re the one who’s on probation. You’re 

the one accused of this crime. You’re the one looking at 

five years in jail. 

 THE DEFENDANT: Yes, ma’am. 

 THE COURT: I would just be quiet and let the jury 

decide. 

 THE DEFENDANT: Yes, ma’am. 

 . . . 

 THE COURT: We’re going to try this case fairly. 

 THE DEFENDANT: Thank you. 

 THE COURT: With or without you. 

 THE DEFENDANT: Yes, ma’am, I’m all about fairness, 

ma’am, Your Honor. 

 THE COURT: That’s hard to believe watching your 

antics. 

 THE DEFENDANT: I’m not trying to sway them or act, 

it’s all genuine. 

 THE COURT: Why would anyone hold up their hands if so 

they could see this? 

 THE DEFENDANT: No, I don’t know. 

 THE COURT: Oh, no, Mr. Kim, don’t lie to me, I was 

watching you. You were standing at the edge of the table 

facing the filing jurors and you were holding your hands 

out in front of your stomach in the air with palms down, 

fingers out, I saw that. Do not try to tell me your hands 

were on the table, that’s a lie. 

 THE DEFENDANT: Yes, ma’am, it’s close to the table. 

 THE COURT: They were not close to the table, they 

were in the air? 

 THE DEFENDANT: Yes, yes. 
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 THE COURT: Do not lie to me, Mr. Kim, that would be 

very silly. 

 THE DEFENDANT: That’s it, last thing I want to do is 

lie. 

 THE COURT: That wouldn’t be smart at all, right, 

okay? 

 THE DEFENDANT: Yes, Judge. 

 THE COURT: Please use your brains. 

 THE DEFENDANT: Yes, ma’am, yes, ma’am. 

 THE COURT: I think your [sic] being obstructive. 

 THE DEFENDANT: I’m trying my best, I’ll do better. 

 THE COURT: Well -- 

 THE DEFENDANT: This is really important to me. 

 THE COURT: It’s important for a lot of reasons, and 

your [sic] one of them. And we’re trying to get you a fair 

trial. We’re trying to give the State a fair trial. We’re 

trying to let the jury decide appropriately on the evidence 

that they believe, whatever that is, all right. 

The prosecution placed its objection on the record, stating that 

Kim had put his index fingers out side-by-side as a way of 

demonstrating to Lewis and any other potential onlookers--

including the jury--that his right index finger is shorter than 

his left index finger. Defense counsel then informed the court 

that, at a later point, he was going to request permission for 

Kim to show his fingers to the jury. The court indicated that 

it did not think that would be a problem, but stated that Kim 

“can’t do that as he’s sitting there.” The exchange continued 

as follows: 
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 [DEFENSE COUNSEL]: Just so Mr. Kim is clear, if 

there’s any further shaking of the heads, the Court is 

going to admonish him in front of the jury. 

 THE COURT: I’m considering that. I’m also 

considering ejecting him out. 

 THE DEFENDANT: And the trial continues without me? 

 THE COURT: Yes. 

 [DEFENSE COUNSEL]: We would. 

 THE COURT: I don’t want to do that, that’s the last 

resort, but the law says you can if somebody is just being 

obstructive. Okay, are we clear? 

 THE DEFENDANT: Yeah, we’re clear. 

 THE COURT: All right, you have any questions? 

 . . . 

 [DEFENSE COUNSEL]: This is the first time he’s been 

in trial. I instructed him about procedures and again it’s 

an emotional time for him, it’s been two years and he has -

- 

 . . . 

 THE COURT: I don’t want to hear anything more about 

the emotion, all right. You’re a grown man, I would think 

you’re able to control your emotions or something, I would 

assume that. You could talk to your lawyer all you want. 

You can take notes. I’ll give you all the time to talk to 

him that you need. But there will be no more smiling, 

shaking one’s head, kind of rolling one’s eyes, holding up 

fingers, holding up hands to show the jury, that’s 

incredibly -- well, it’s really inappropriate. 

 THE DEFENDANT: I’m sorry. I didn’t realize. 
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E. Tachibana Colloquy 

 After the State rested its case, Kim was permitted to 

approach the jury box.6

 Kim showed the jury his hands facing 

down; he also pointed his right index finger and his left index 

finger for the jury to compare. Further, Kim held out his hands 

with his palms facing up, and he made two fists for the jury to 

see. Following this demonstration, there was a lunch recess. 

 After the lunch recess, the court asked defense 

counsel whether Mr. Kim had made a decision with respect to 

testifying: 

 THE COURT: Okay, let’s go back on the record. 

Counsel and the defendant are present, but not our jury. 

 [Defense counsel], has your client made a decision? 

[DEFENSE COUNSEL]: Yes, Your Honor. I’ve reviewed with Mr. 

Kim the pros and cons of testifying, and he is electing not 

to testify and it’s his decision. 

BY THE COURT: 

 Q. Okay. Mr. Kim, as you and I talked about at 

start of the trial, you have a constitutional right to 

testify in your own defense. And you should talk with your 

lawyer and anybody else you may want to talk with, but the 

decision to testify is yours and yours alone. And if you 

decide you want to testify, nobody can stop you from 

testifying, including your own lawyer. If you decide to 

testify, the prosecution will be given a chance to question 

you. 

 You also have a constitutional right not to 

testify. You have a right to remain silent. Again, talk 

 6

 The apparent purpose of Kim’s presentation of his hands to the 

jury was to impeach Lewis’s testimony that Kim made a fist with his hands. 

Defense counsel later argued in closing argument that a preexisting injury to 

Kim’s right index finger prevented him from bending it to form a fist. 
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with whomever you want to talk with, but this decision must 

be yours and yours alone. If you decide you don’t want to 

testify, nobody can force you to testify. If you decide 

not to testify, I instruct the jury that it cannot hold 

your silence against you in deciding your case. Have you 

understood all of that? 

 A. Yes, ma’am. 

 Q. Okay. Any questions about anything related to 

that or anything else? 

 A. I think I’m finally starting to get it here. 

 Q. Okay. So do you have any questions? 

 A. Not really. 

 Q. All right. And what is your decision as to 

whether you want to testify or not which is your decision 

alone? 

 A. Well, in your words I want to but I can’t, I 

don’t think I can, so I’m not going to. 

 Q. Well, you know, as I say, it’s your decision, 

it’s your case, and it’s you who has to make the decision. 

 A. I choose not to. 

 THE COURT: Okay. I think from what I’ve seen and 

heard, Mr. Kim, he looks very cognizant and alert and I 

believe he understands his right to testify and his right 

not to testify and that this is his decision, and he’s 

voluntarily, knowingly and intelligently decided to give up 

that right. 

The defense then rested without presenting any testimonial 

evidence. 

 The jury found Kim guilty of criminal trespassing in 

the first degree, terroristic threatening in the second degree, 

and assault in the third degree. By special interrogatory, the 

jury indicated that the prosecution proved beyond a reasonable 

doubt that the fight or scuffle was not entered into by mutual 
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consent. And, with regard to count 4, criminal property damage 

in the fourth degree, the jury found that Kim was not guilty. 

Kim was sentenced to one year in jail for each conviction, with 

the terms to run concurrently. Kim appealed to the Intermediate 

Court of Appeals (ICA) from the Judgment of Conviction and 

Sentence entered by the circuit court on April 30, 2014. 

II. ICA PROCEEDINGS 

 In his opening brief, Kim argued that the circuit 

court influenced his decision not to testify by intimidating him 

throughout the entire trial. Kim contended that the circuit 

court threatened to admonish him in front of the jury and to 

eject him from the courtroom; he asserted it “seemed apparent” 

that he “wanted to be heard and testify,” but that the circuit 

court “swayed” him from testifying. 

Kim also argued that the circuit court did not engage 

in a true colloquy with him to ascertain his understanding of 

his Tachibana rights and that this failure resulted in “a 

failure to obtain the on-the-record waiver required by 

Tachibana.” Kim noted that the circuit court did not advise or 

assure him of his right to testify during the exchange in which 

the circuit court admonished him for making faces and trying to 

communicate to the jury. Kim asserted that it is unknowable 
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whether his testimony could have established reasonable doubt 

that he committed the charged offenses. 

 In its answering brief, the State asserted that the 

circuit court conducted the required Tachibana colloquy and pretrial advisement. The State contended that the circuit court 

addressed Kim’s right to testify and not to testify and 

explained what those rights entailed and what they meant. The 

State also noted that, although Kim was provided an opportunity 

to ask questions, he did not have any questions for the court. 

The State argued that Kim overlooks that assessing whether he 

knowingly, intelligently, and voluntarily waived his right to 

testify requires looking at the totality of the facts and 

circumstances of the particular case. The State maintained that 

nothing in the record showed that Kim did not understand his 

rights as explained to him by the court. And, the State further 

noted that, on appellate review, the circuit court’s assessment 

of the situation and the capabilities of the defendant have to 

be given some weight. 

 Additionally, the State argued that, even assuming the 

court’s colloquy was deficient, the error was harmless because 

Kim presented no evidence at trial, so there was no 

contradictory evidence to the State’s case. The State further 

contended that while Lewis was extensively cross-examined and 
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there may have been inconsistencies, the inconsistencies were 

not so material such that they took away from the essential 

nature of Kim’s conduct. 

 With regard to Kim’s assertion that the circuit court 

intimidated him, the State noted that Kim did not specify how 

the court influenced his decision not to testify. The State 

argued that there was nothing improper about the court warning 

Kim that he could lose his right to be present at trial if he 

continued his disruptive behavior. 

 In a summary disposition order, the ICA concluded that 

the circuit court adequately advised Kim of his rights and 

obtained a valid waiver of his right to testify. The ICA 

reasoned that the circuit court fully advised Kim of the five 

rights required by the Tachibana colloquy. The ICA noted that, 

after engaging in a discussion with Kim, the circuit court 

clearly stated that Kim looked “very cognizant and alert” and 

that he understood the Tachibana colloquy and its implications. 

 With regard to Kim’s argument that the circuit court 

intimidated him throughout trial, thus influencing his decision 

not to testify, the ICA concluded that the record was 

insufficient to support a determination that the circuit court’s 

warnings were “sufficiently intimidating” as to affect Kim’s 

decision not to testify. The ICA reasoned that a trial court is 
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well within its discretion to warn a defendant that he or she 

could lose the right to be present at trial, if the defendant’s 

disruptive behavior persists after the warning. 

III. STANDARD OF REVIEW

 The validity of a criminal defendant’s waiver of the 

right to testify is a question of constitutional law reviewed by 

this court under the right/wrong standard. See State v. GomezLobato, 130 Hawaiʻi 465, 468-69, 312 P.3d 897, 900-01 (2013) 

(“The validity of a criminal defendant’s waiver of his or her 

right to a jury trial presents a question of state and federal 

constitutional law. . . . [W]e review questions of 

constitutional law under the right/wrong standard.”). 

IV. DISCUSSION 

 Hawaiʻi law has historically protected both the right 

to testify and the right not to testify. State v. Monteil, 134 

Hawaiʻi 361, 369, 341 P.3d 567, 575 (2014). The right to testify 

is guaranteed by the Fifth and Sixth Amendments to the United 

States Constitution; article I, sections 5, 10, and 14 of the 

Hawaiʻi Constitution; and HRS § 801-2 (1993). State v. Pomroy, 

132 Hawaiʻi 85, 91, 319 P.3d 1093, 1099 (2014). The right not to 

testify is guaranteed by the Fifth Amendment and the Hawaiʻi 
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Constitution’s parallel guarantee under article I, section 10. 

Monteil, 134 Hawaiʻi at 369, 341 P.3d at 575. 

 In Tachibana v. State, this court held that, “in order 

to protect the right to testify under the Hawaiʻi 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.” 79 Hawaiʻi 

226, 236, 900 P.2d 1293, 1303 (1995). “In addition to requiring 

an ‘ultimate colloquy,’ Tachibana strongly recommended trial 

courts conduct a prior-to-trial advisement to inform defendants 

of their right to testify and the right not to testify.” 

Monteil, 134 Hawaiʻi at 370, 341 P.3d at 576 (quoting Tachibana, 

79 Hawaiʻi at 237 n.9, 900 P.2d at 1304 n.9). Thus, trial courts 

are charged with a “‘serious and weighty responsibility’” of 

ensuring that the waiver of the right to testify is a knowing 

and intelligent decision, id. at 371, 341 P.3d at 577 (quoting 

Tachibana, 79 Hawaiʻi at 233, 900 P.2d at 1300), and it is the 

trial court’s duty to establish a record sufficient to 

“effectively settle the right-to-testify issues in the case.” 

Pomroy, 132 Hawaiʻi at 93 n.7, 319 P.3d at 1101 n.7 (citing State 

v. Han, 130 Hawaiʻi 83, 91, 306 P.3d 128, 136 (2013)). 
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A. The Record Is Insufficient For Appellate Determination That 

The Waiver Was Valid. 

 This court has emphasized the importance of engaging 

in a “true colloquy” with the defendant, one that consists of an 

“‘oral exchange’ in which the judge ascertains the defendant’s 

understanding of the proceedings and of the defendant’s rights.” 

Pomroy, 132 Hawaiʻi at 93, 319 P.3d at 1101 (quoting Han, 130 

Hawaiʻi at 90, 306 P.3d at 135). “The failure to engage in a 

true exchange to ascertain the defendant’s understanding of the 

individual rights comprising the Tachibana colloquy results in 

the failure to ensure that [the defendant] understood his [or 

her] rights [and] amounts to a failure to obtain the on-therecord waiver required by Tachibana.” Id., 319 P.3d at 1101 

(first and third alterations in original) (quoting Han, 130 

Hawaiʻi at 91, 306 P.3d at 136). 

 In this case, the record is insufficient to support a 

determination that Kim’s waiver of his right to testify was 

voluntarily, intelligently, and knowingly made. Although the 

circuit court advised Kim of his right to testify or not to 

testify, the court did not engage in the requisite exchange to 

ascertain Kim’s understanding of his rights. After advising Kim 

of his rights to testify and not to testify, the court asked Kim 

his decision regarding testifying, and Kim responded in a manner 
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that indicated that he did not adequately understand his 

constitutional rights: 

 Q. All right. And what is your decision as to 

whether you want to testify or not which is your decision 

alone? 

 A. Well, in your words I want to but I can’t, I 

don’t think I can, so I’m not going to. 

 Q. Well, you know, as I say, it’s your decision, 

it’s your case, and it’s you who has to make the decision. 

 A. I choose not to. 

 THE COURT: Okay. I think from what I’ve seen and 

heard, Mr. Kim, he looks very cognizant and alert and I 

believe he understands his right to testify and his right 

not to testify and that this is his decision, and he’s 

voluntarily, knowingly and intelligently decided to give up 

that right. 

(Emphasis added.) When Kim stated, “in your words I want to but 

I can’t, I don’t think I can, so I’m not going to,” it raised 

serious questions as to whether Kim truly understood his right 

to testify or not to testify. It was incumbent on the circuit 

court at this point to question Kim further: (1) to determine 

why Kim believed he could not testify, even though he indicated 

that he wanted to testify; (2) to clarify any misunderstanding 

that Kim had regarding his trial rights; and (3) to establish a 

record demonstrating Kim’s understanding of his right to testify 

following the court’s clarification. The court’s response, 

“it’s your decision, it’s your case, and it’s you who has to 

make the decision,” did not address what Kim had said. Although 

Kim indicated that he was electing not to testify because he did 
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not think he could, the court merely repeated what it had 

earlier stated--that it was Kim’s decision whether to testify. 

Consequently, the record is silent as to why Kim 

believed that he could not testify despite his apparent 

willingness to do so. Because the court only reiterated that it 

was Kim’s decision whether to testify, and Kim responded, “I 

choose not to,” his choice may very well have been influenced or 

dictated by his belief that he could not testify based on his 

understanding that he did not think he could. Finally, Kim 

explained that he had come to his belief that he could not 

testify as a result of statements the court made; Kim stated, 

“[I]n your words I want to but I can’t.” Again, the record 

lacks any inquiry by the court as to what were the court’s words 

to which Kim was referring, what led to Kim’s confusion, and 

what needed to be explained to him in order to address his 

confusion. 

 The circuit court’s description of its own assessment 

of Kim as “cognizant and alert” is not dispositive. “We are 

tasked with scrutinizing the language used by both the court and 

the defendant to assess whether a defendant knowingly, 

intelligently, and voluntarily waived his or her right to 

testify.” Pomroy, 132 Hawaiʻi at 93 n.7, 319 P.3d at 1101 n.7. 

While the circuit court’s observation of Kim may be helpful on 
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review, we cannot defer to the circuit court’s “assessment of 

[Kim’s] understanding whenever the express language on the 

record leaves us with any doubt about the validity of the 

colloquy and/or [Kim’s] waiver.” Id., 319 P.3d at 1101 n.7. 

Here, Kim’s response to the court that he was choosing not to 

testify based upon his reliance on the circuit court’s earlier 

statements raises serious concerns as to the extent to which Kim 

understood the right to testify.7

 Therefore, without further 

questioning by the circuit court, the record is insufficient to 

support a determination that Kim’s waiver of the right to 

testify was knowingly, intelligently, and voluntarily made. 

 7

 The exchange between the court and Kim regarding his behavior 

during the trial suggests that circumstances existed that required the court 

to use extra care in ensuring that Kim understood his rights. It is noted 

that in circumstances where the court has reason to question the defendant’s 

understanding, it may be necessary for a trial court to ask additional 

follow-up questions to confirm the defendant’s understanding. See State v. 

Phua, 135 Hawaiʻi 504, 514, 353 P.3d 1046, 1056 (2015) (providing that 

additional questioning may be necessary to confirm a defendant’s 

understanding of the court’s warnings of the risks of waiving counsel and the 

disadvantages of self-representation). For example, circumstances requiring 

additional questioning may exist where there is a language barrier between 

the defendant and the court. See State v. Krstoth, 138 Hawaiʻi 268, 276, 378 

P.3d 984, 992 (2016) (noting that a language barrier may be a salient fact 

that puts a court on notice that waiver by the defendant may be less than 

knowing and intelligent); State v. Gomez-Lobato, 130 Hawaiʻi 465, 472, 312 

P.3d 897, 904 (2013) (concluding that in light of the language barrier 

between the defendant and court, the defendant’s affirmative answers to the 

judge’s questions did not establish that he understood he was waiving his 

right to a jury trial); Phua, 135 Hawaiʻi at 514-15, 353 P.3d at 1056-57 

(same). In this case, the circuit court specifically stated to defense 

counsel regarding Kim, “There’s something wrong with him.” 
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 B. Whether The Circuit Court Intimidated Kim Need Not Be 

Determined By This Court. 

 Kim also contends that the trial court intimidated him 

into not testifying. Because we conclude that the record is 

insufficient to support a determination that Kim’s right to 

testify was knowingly, intelligently, and voluntarily waived, it 

is not necessary to resolve whether the trial court influenced 

Kim’s decision not to testify. However, given the exchange that 

took place between Kim and the circuit court, we provide 

guidance on this matter. 

The United States Supreme Court has declared, “It is 

essential to the proper administration of criminal justice that 

dignity, order, and decorum be the hallmarks of all court 

proceedings in our country.” Illinois v. Allen, 397 U.S. 337, 

343 (1970); State v. Castro, 69 Haw. 633, 650, 756 P.2d 1033, 

1045 (1988). Thus, a judge should use the powers of the court 

to maintain order in judicial proceedings to prevent 

distractions and disruptions in a trial.8

 

In conducting judicial proceedings, trial judges may 

be confronted with “disruptive, contumacious, [and] stubbornly 

 8

 “A trial judge should maintain order and decorum in judicial 

proceedings. The trial judge has the obligation to use his or her judicial 

power to prevent distractions from and disruptions of the trial.” Standards 

for Criminal Justice: Special Functions of the Trial Judge § 6-3.5(a) (Am. 

Bar Ass’n 2000). 
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defiant defendants.” Castro, 69 Haw. at 650, 756 P.2d at 1045 

(alteration in original) (quoting Allen, 397 U.S. at 343). 

Under such circumstances, we have stated that trial judges are 

vested with “sufficient discretion to meet the circumstances of 

each case.” Id., 756 P.2d at 1045 (quoting Allen, 397 U.S. at 

343). A trial judge may remove a “particularly obstreperous and 

disruptive defendant” from the courtroom where the defendant’s 

behavior is of “‘an extreme and aggravated nature’” to justify 

removal. Id., 756 P.2d at 1045 (quoting Allen, 397 U.S. at 343-

44, 346); see also Standards for Criminal Justice: Special 

Functions of the Trial Judge § 6-3.8 (Am. Bar Ass’n 2000) 

[hereinafter ABA Standards for Trial Judges] (“A defendant may 

be removed from the courtroom during trial when the defendant’s 

conduct is so disruptive that the trial cannot proceed in an 

orderly manner.”). 

 At the same time, a “trial judge has the 

responsibility for safeguarding . . . the rights of the 

accused.” ABA Standards for Trial Judges § 6-1.1(a). Trial 

judges “should remain sensitive to the various . . . interests . 

. . involved in the criminal justice system,” and “[o]f utmost 

importance, . . . are the constitutional rights of the 

defendant.” ABA Standards for Trial Judges § 6-1.1(c) cmt. at 

17. At times, the duties of protecting the constitutional 
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rights of the defendant and maintaining the order and decorum of 

the proceedings may be in tension. In such circumstances, the 

court must be cautious in exercising its authority to maintain 

order and decorum, and the action taken by the court should be 

proportional to the perceived disruption. See Allen, 397 U.S. 

at 343 (“No one formula for maintaining the appropriate 

courtroom atmosphere will be best in all situations.”). 

In this case, the court informed Kim in three 

instances that it was considering removing him from the 

courtroom. Certainly, Kim’s actions of apparently trying to 

communicate to the jury from counsel table that his right hand 

could not form a fist and trying to convey his thoughts through 

facial expressions provided the basis for intervention by the 

court. However, the warning to Kim that the court was very 

close to ejecting him from the courtroom appears to have been 

premature. “Public confidence in the trial process requires 

that removal of a defendant be limited to cases urgently 

demanding that action be taken[.] . . .” ABA Standards for 

Trial Judges § 6-3.8 cmt. at 66. A defendant charged with a 

criminal offense has a right to be present at “each critical 

stage of the criminal proceeding.” Onaka v. Onaka, 112 Hawaiʻi 

374, 380, 146 P.3d 89, 95 (2006) (citing Rushen v. Spain, 464 

U.S. 114, 117 (1983)). This right is “of no less than 
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constitutional magnitude, and is founded upon the Confrontation 

and Due Process clauses of both the United States and Hawaiʻi 

Constitutions.” State v. Walsh, 125 Hawaiʻi 271, 285, 260 P.3d 

350, 364 (2011) (quoting State v. Okumura, 58 Haw. 425, 427, 570 

P.2d 848, 851 (1977)). The right of presence is “scarcely less 

important . . . than the right of trial itself.” State v. 

Kaulia, 128 Hawaiʻi 479, 492, 291 P.3d 377, 390 (2013) (quoting 

Diaz v. United States, 223 U.S. 442, 455 (1912)). 

On the present record, Kim’s behavior had not risen to 

“‘an extreme and aggravated’” level such that his trial could 

not be carried on with him present.9

 Castro, 69 Haw. at 650, 756 

P.2d at 1045 (quoting Allen, 397 U.S. at 346). While a court 

does not have to wait for conduct to reach an egregious nature 

before issuing a warning, the stated consequences of improper 

behavior should be proportional to the defendant’s conduct. See 

id. at 650-53, 756 P.2d at 1045-47; see also ABA Standards for 

Trial Judges § 6-3.5 cmt. at 57 (“Normally, the judge should use 

the least severe measures available to maintain order and 

 9

 “[A] defendant can lose his right to be present at trial if, 

after he has been warned by the judge that he will be removed if he continues 

his disruptive behavior, he nevertheless insists on conducting himself in a 

manner so disorderly, disruptive, and disrespectful of the court that his 

trial cannot be carried on with him in the courtroom.” Allen, 397 U.S. at 

343. 
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decorum in the courtroom.”). A court should be cognizant that 

overstating the sanction for the behavior involved may risk 

influencing the defendant’s exercise of his or her 

constitutional trial rights.10 See ABA Standards for Trial 

Judges § 6-1.4 cmt. at 22 (“The judge should remain aware that 

he or she is constantly being observed, and must always be 

attentive to the proceedings and to the appearance of his or her 

own actions.”). 

 Additionally, the circuit court advised defense 

counsel at the bench that, if Kim did not stop making faces, he 

would be reprimanded in front of the jury, and defense counsel 

repeated the court’s caveat in Kim’s presence.11 While the 

circuit court sought to preserve the dignity of the proceedings 

and ensure that both sides received a fair trial, the court’s 

indication that it would reprimand Kim or consider reprimanding 

Kim in the presence of the jury is generally disfavored. If it 

is necessary for a judge to comment upon the conduct of the 

 10 This may be particularly true when the circumstances indicate 

that the defendant may be more vulnerable to influence by the court or the 

defendant lacks experience with the requirements of a court proceeding. 

11 This warning to admonish Kim in front of the jury did not concern 

instructing the jury to disregard the conduct of Kim that the court 

considered inappropriate. Immediately after completing its warning to Kim, 

the court reconvened the jury and instructed the jury that it may only 

consider the sworn testimony of witnesses and any exhibits that were in 

evidence. 
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defendant or others, “the judge should do so outside the 

presence of the jury, if possible.” ABA Standards for Trial 

Judges § 6-3.5. In addition, Standard 6-3.5 of the Standards 

for Criminal Justice: Special Functions of the Trial Judge 

provides that, in commenting upon the conduct of trial 

participants, the court should “limit[] comments and rulings to 

what is reasonably required for the orderly progress of the 

trial.” Id.; see also People v. Johnson, 993 N.E.2d 1, 24 (Ill. 

App. Ct. 2012) (quoting People v. Eckert, 551 N.E.2d 820, 825 

(Ill. App. Ct. 1990)) (noting that the trial judge’s comments 

toward defense witness and defense counsel outside the presence 

of the jury were not “reasonably required for the underlying 

progress of the trial”). 

 As we noted recently, “[a] judge should be courteous, 

respectful and civil to lawyers, parties, . . . and all other 

participants in the legal process.” State v. Barrios, 139 

Hawaiʻi 321, 339 n.12, 389 P.3d 916, 934 n.12 (2016) (alteration 

in original) (quoting Principles of Professionalism for Hawaiʻi 

Judges Principle 1).12 “The conduct of the judge sets the tone 

 12 See also Hawaiʻi Revised Code of Judicial Conduct Rule 2.8(b) 

(2009) (“A judge shall be patient, . . . and courteous to litigants, . . . 

and others with whom the judge deals in an official capacity . . . .”); ABA 

Standards for Trial Judges § 6-3.4 cmt. at 55 (stating that the judge “has 

(continued . . .) 
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 30 

 

of the proceedings.” ABA Standards for Trial Judges § 6-3.4 

cmt. at 55. Hence, the judge may have to exercise “extreme 

forbearance” and “self-control,” particularly in criminal cases, 

where proceedings are often stressful. Id. In that sense, a 

judge should not become involved in a personal conflict with 

anyone in the courtroom,13 as it “tends . . . to undermine 

judicial authority.” ABA Standards for Trial Judges § 6-3.4. 

 The need for judicial restraint in the exercise of 

judicial power is heightened by the possibility that the court’s 

words or conduct may be misunderstood by a party in the 

proceeding.14 A judge should “be particularly careful by his or 

her demeanor not to convey unintended messages . . . to the 

participants in the trial process.” ABA Standards for Trial 

Judges § 6-1.4 cmt. at 22. For example, with regard to the 

right to testify, there may be circumstances where, in light of 

 

(. . . continued) 

the obligation to be patient with and courteous to all participants in the 

process”). 

13 In this case, the circuit court repeatedly told Kim not to lie; 

asked Kim to be smart; reminded Kim that he was on probation, that he was the 

accused, and that he was the one looking at imprisonment; and stated that it 

did not want to hear any further statements about emotion, since Kim is a 

grown man and thus should be able to control such emotion. 

14 Kim may have misunderstood some of the court’s statements. In 

response to the court’s question of whether Kim wanted to testify, Kim 

stated, “Well, in your words I want to but I can’t, I don’t think I can, so 

I’m not going to.” 
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the interactions between the court and the defendant during 

trial, the voluntariness of the defendant’s waiver may be 

implicated. See Tachibana, 79 Hawaiʻi at 236 n.7, 900 P.2d at 

1303 n.7 (noting that, “[i]n conducting the colloquy, the trial 

court must be careful not to influence the defendant’s decision 

whether or not to testify”). Consequently, in the interests of 

the proper administration of criminal justice, a court should 

exercise its authority in a restrained and dignified manner 

while, at the same time, preserving order and decorum in 

judicial proceedings. ABA Standards for Trial Judges § 6-3.5; 

Johnson, 993 N.E.2d at 24. 

V. CONCLUSION 

 The record in this case is insufficient to support a 

determination that Kim’s waiver of the right to testify was 

knowingly, intelligently, and voluntarily made. Kim’s response 

to the circuit court during the ultimate Tachibana colloquy 

indicated that he did not understand his right to testify, and 

the court did not engage in an exchange that adequately 

established, on the record, Kim’s understanding of that right. 

This error was not harmless beyond a reasonable doubt,15 given 

 15 “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.” Han, 130 Hawaiʻi at 

(continued . . .) 
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that Lewis’s testimony was not entirely consistent and was not 

corroborated. 

 Accordingly, the ICA Judgment on Appeal and the 

circuit court Judgment of Conviction and Sentence are vacated, 

and the case is remanded to the circuit court for further 

proceedings. 

Tae W. Kim 

for petitioner 

/s/ Paula A. Nakayama 

/s/ Sabrina S. McKenna 

/s/ Richard W. Pollack 

/s/ Michael D. Wilson 

 

(. . . continued) 

93, 306 P.3d at 138 (quoting Tachibana, 79 Hawaiʻi at 240, 900 P.2d at 1307). 

Under the harmless beyond a reasonable doubt standard, “[t]he relevant 

question . . . is whether there is a reasonable possibility that error might 

have contributed to [the] conviction.” Id., 306 P.3d at 138 (quoting State 

v. Schnabel, 127 Hawaiʻi 432, 450, 279 P.3d 1237, 1255 (2012)).