STATE v. MOORE (2018)

SUMMARY DISPOSITION ORDER

Defendant-Appellant James S. Moore (Moore) appeals from the Amended Judgment entered on July 18, 2017 (Amended Judgment), by the District Court of the First Circuit, Ewa Division (District Court).¹

Moore raises a single point of error on appeal, contending that the District Court erred in failing to require Moore himself, rather than Moore's attorney, to state whether Moore was going to remain silent or testify at trial. The State agrees, submitting that it cannot make a good faith argument that the District Court's failure to obtain a direct waiver from Moore was harmless error.

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, as well as the relevant statutory and case law, we resolve Moore's point of error as follows:

The State concedes Moore's point, Notwithstanding the State's concession, “appellate courts have an independent duty ‘first to ascertain that the confession of error is supported by the record and well-founded in law and second to determine that such error is properly preserved and prejudicial.’ ” State v. Veikoso, 102 Hawai‘i 219, 221-22, 74 P.3d 575, 577-78 (2003) (citation omitted).

Hawai‘i law is clear. A defendant's waiver of his or her right to testify must be obtained directly from the defendant, not from the attorney, or the waiver is invalid. See State v. Staley, 91 Hawai‘i 275, 287, 982 P.2d 904, 916 (1999); State v. Hoang, 94 Hawai‘i 271, 278, 12 P.3d 371, 378 (App. 2000). The record in this case is also clear, although the District Court engaged in a colloquy with Moore, the court asked Moore's attorney, not Moore, whether Moore was going to testify. As there is nothing to indicate what Moore would have testified about, we cannot conclude that the Tachibana error constituted harmless error. See Hoang, 94 Hawai'i at 279, 12 P.3d at 379.

Accordingly, the District Court's Amended Judgment is vacated and this case is remanded for a new trial.

FOOTNOTES

1.   The Honorable Michael A. Marr presided.