NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000028

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

BENJAMIN DAVID OLTHAFER, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CRIMINAL NO. 3CPC-18-0000194)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Benjamin David Olthafer appeals

from the "Judgment of Conviction and Probation Sentence" entered

by the Circuit Court of the Third Circuit.1 For the reasons

explained below, we vacate the Judgment and remand for further

proceedings.

On March 13, 2018, a grand jury indicted Olthafer for

Felony Abuse of Family or Household Member in violation of Hawaii

Revised Statutes § 709-906(1) and (9). A "Submission of

Stipulated Facts for Bench Trial" was signed by Olthafer,

Olthafer's deputy public defender, and the deputy prosecuting

attorney on September 5, 2018. The Submission was filed on

September 7, 2018. The Judgment was entered on November 8, 2018. 

This appeal followed.

1 The Honorable Melvin H. Fujino presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000028

29-APR-2022

07:53 AM

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Olthafer contends that the circuit court "Erred When it

Failed to Ensure Olthafer's Waiver of His Right to a Trial by

Jury Was Made Intelligently, Knowingly, and Voluntarily."

The validity of a criminal defendant's waiver of

[their] right to a jury trial presents a question of state

and federal constitutional law. We answer questions of

constitutional law by exercising our own independent

constitutional judgment based on the facts of the case. 

Thus, we review questions of constitutional law under the

right/wrong standard.

State v. Baker, 132 Hawai#i 1, 5, 319 P.3d 1009, 1013 (2014)

(ellipsis omitted).

In Baker, the defendant signed his initials next to

each paragraph on a form indicating that he intended to waive a

jury trial, except for the paragraph stating that his waiver was

not induced by promises or threats. Id. at 3-4, 319 P.3d at

1011-12. The circuit court then engaged the defendant in a brief

colloquy about the form. Id. at 4, 319 P.3d at 1012. On appeal,

the supreme court explained that even when the defendant signs a

written jury trial waiver form, the trial court is still required

to conduct an oral colloquy to establish the validity of the

waiver. Id. at 6, 319 P.3d at 1014. The supreme court held that

the defendant's waiver of jury trial was not voluntary because

the defendant failed to initial next to the paragraph on the

waiver form that addressed voluntariness and "none of the court's

questions were directed towards determining the voluntariness of

[the defendant]'s waiver." Id. at 7, 319 P.3d at 1015.

In this case, the Submission set forth the stipulated

facts, then stated:

10. The Defendant has been informed that he has the

right to have a trial by jury in case 3CPC-18-194; that in a

jury trial, he and his attorney have the right of selecting

twelve (12) persons from a panel of potential jurors; that

he has a certain number of peremptory challenges which can

be used to excuse a juror for any reason; and that all

twelve (12) jurors must unanimously agree before a verdict

can be given. The Defendant has also been informed that at

a trial he has the right to confront and cross-examine the

witnesses who testify. The Defendant hereby waives his

right to a trial by jury in case 3CPC-18-194 and agrees to

have the question of his guilt or innocence determined by

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the Court alone based upon the above Exhibits attached

herein. The Defendant also waives his right to crossexamine the witnesses for case 3CPC-18-194 and agrees to

submit the attached Exhibits without cross-examination. 

Defendant further understands that at trial he would have

the right to take the stand and testify or the right not to

testify. Defendant hereby waives his right to testify at

trial.

On September 5, 2018, the circuit court held a hearing. 

Olthafer's counsel stated:

Um, Your Honor, um, may, um, I have gone over the, uh,

stipulation for stipulated facts trial with Mr. Olthafer. 

Um, he has, um, signed as well as the State.

Um, I would ask if I can approach both the, uh, court

clerk to submit my exhibits as well as exhibit list and the

Court to submit the submission for stipulated facts trial,

Your Honor.

THE COURT: Sure.

The circuit court then had an oral colloquy with Olthafer:

THE COURT: So, Mr. Olthafer, do you know what today's

hearing is about?

THE DEFENDANT: I believe this is the hearing that

we've been waiting for.

. . . .

THE COURT: Okay? So have you taken any medication,

alcohol or illegal drugs within the last 48 hours?

THE DEFENDANT: No.

THE COURT: Okay. And do you know what a stipulated

facts trial is?

THE DEFENDANT: The presenting of those facts of the

--

THE COURT: All these papers that your attorney just

gave me so --

THE DEFENDANT: Yes.

THE COURT: -- when we have a stipulated facts trial

there're [sic] not gonna be any witnesses called and so

normally -- not normally.

In a trial as a defendant you have the right to see,

hear and question witnesses who testify against you, but if

they're not gonna be called to the stand you're not gonna

see them in person. The Court's just gonna review what's

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submitted in the police reports because I think you got a

chance to review as well as the doctors' reports.

THE DEFENDANT: Yes.

THE COURT: Okay. And normally when a witness

testifies if the prosecutor asks them questions you'll have

a right to ask them questions that's known as

cross-examination.

But if they submitted just because you're not gonna

have live testimony and just on the reports you're not gonna

have that opportunity to cross-examine them as to their

opinions. You understand?

THE DEFENDANT: Yes.

THE COURT: You gotta answer out loud because we are

being recorded.

Do you understand what you're giving up when we have a

stipulated facts trial?

THE DEFENDANT: Uh, say that one more time.

THE COURT: Do you understand what you're giving up

because you have the right to see, hear and question

witnesses who testify against you, but if you have a

stipulated facts trial they're not gonna be testifying so

it's just gonna be submission of the reports or their

opinions without you having the opportunity to ask them

questions and to see them because everything is done by

paper. Do you understand the difference?

THE DEFENDANT: Yes.

THE COURT: And you're willing to do that?

THE DEFENDANT: Yes.

THE COURT: Okay. Now, also you have a, uh,

constitutional right to a jury trial, but if you do a

stipulated fact trial as we doing now there's no jury so.

THE DEFENDANT: It's just you.

THE COURT: Just me. So I'm gonna ask -- ask you if

you're waiving or giving up your right to a jury trial?

THE DEFENDANT: Yes.

THE COURT: Okay. So in order for me to do that I

just wanna make sure you understand what rights you give up

when you give up your right to a jury trial. So do you know

how many people sit in a jury box?

THE DEFENDANT: About 24?

THE COURT: Okay. There's twelve of them. I mean

there's actually chairs in the jury box but there's twelve,

and out of those twelve the prosecutor as well as your

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attorney and yourself will be allowed to participate in the

selection of those twelve jurors. Do you understand?

THE DEFENDANT: Yeah.

THE COURT: Now, if you give up your right to a jury

trial you give up your right to participate in the selection

of the twelve jurors.

You also give up your right to require the prosecutor

who has the burden to convince each juror individually of

your guilt by proof beyond a reasonable doubt, and you also

give up your right to require the jurors to unanimously

agree.

In other words all twelve of them have to agree before

they can convict you of a guilt [sic] by proof beyond a

reasonable doubt. Do you understand?

THE DEFENDANT: Yes.

THE COURT: Okay. You have any questions about what

rights you give up when you give up your right to jury

trial?

THE DEFENDANT: No.

THE COURT: So you okay with them -- your attorney,

uh, submitting the -- doing a stipulated facts trial with

the exhibits submitted to the Court?

THE DEFENDANT: Have you already had a chance to

review these documents?

THE COURT: Yes.

THE DEFENDANT: And so you're familiar with?

THE COURT: When they, um, as an example when the

examiners' reports came in --

THE DEFENDANT: Mmm-hmm.

THE COURT: -- then remember the Court had to

determine, one, if you're fit –-

THE DEFENDANT: (Indiscernible)

THE COURT: -- to proceed.

THE DEFENDANT: Right.

THE COURT: And so in these reports the examiner talks

about your fitness as well as whether or not you have penal

responsibility or state of mind.

THE DEFENDANT: Mmm-hmm.

THE COURT: So I've reviewed those reports. Also your

attorney has submitted in advance the, um, exhibits. So the

Court only reviews them if they're going to, um, receive

them as part of the trial. That's what exhibits are.

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So like any trial whether or not you had a jury or

just a judge trial the parties will submit exhibits. The

exhibit list has exhibits and the other side can oppose or

not, and then the Court would determine if the exhibit is

received.

Once it's received into evidence then the Court and/or

the jury if there was a jury trial would consider that as

part of the decision-making process. So you understand

that?

THE DEFENDANT: I need to move forward in your hands.

THE COURT: But you have rights so I just wanna make

sure you understand the difference with a stipulated facts

trial versus a bench trial versus the jury trial.

So a bench trial can just be with the judges -- with

the judge and without the jury, and then you could still

have witnesses without the jury present and the Court would

just make a determination.

A stipulated, uh, facts trial is the parties just

submit the documents to the Court and then the Court will

make a review and make a decision. Do you understand?

THE DEFENDANT: Yes.

The Hawai#i Supreme Court has held:

[W]hen a defendant waives a fundamental right, there must be

an affirmative, on-the-record showing that the waiver of the

right is voluntary. It is thus incumbent on the trial court

to have a basis to conclude that a waiver is voluntary. 

Unless voluntariness is gleaned from the defendant's

responses, the trial court must inquire into the

voluntariness of the waiver. Accordingly, a direct question

about voluntariness is required when the defendant's

statements in the colloquy do not indicate that the decision

to waive a jury trial is the defendant's own free and

deliberate choice.

State v. Torres, 144 Hawai#i 282, 289–90, 439 P.3d 234, 241–42

(2019) (emphasis added) (citation omitted). Neither the

Submission nor Olthafer's statements during the colloquy indicate

that the decision to waive a jury trial was his own free and

deliberate choice. The circuit court never asked Olthafer a

direct question whether he was voluntarily waiving his right to a

jury trial, whether anyone was forcing him to give up his right

to a jury trial, or whether his waiver of his right to a jury

trial was induced by promises or threats. We conclude that the

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circuit court erred by failing to ensure that Olthafer's waiver

of his right to a trial by jury was made voluntarily.

Based upon the foregoing, we vacate the Judgment and

remand to the circuit court for further proceedings.

DATED: Honolulu, Hawai#i, April 29, 2022.

On the briefs:

/s/ Lisa M. Ginoza

Kimberly B. Taniyama, Chief Judge

for Defendant-Appellant.

/s/ Keith K. Hiraoka

Charles E. Murray III, Associate Judge

Deputy Prosecuting Attorney,

for Plaintiff-Appellee. /s/ Clyde J. Wadsworth

Associate Judge

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