NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 25-FEB-2026 08:56 AM Dkt. 91 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellee, v. ROBERT A.C. MIDEL, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)
Defendant-Appellant Robert A.C. Midel appeals from the
Circuit Court of the First Circuit's 1 September 25, 2024 Judgment
of Conviction and Sentence, convicting him of Murder in the
Second Degree, in violation of Hawaiʻi Revised Statutes (HRS)
§§ 706-656 (2014), 707-701.5 (2014).
On appeal, Midel contends the circuit court erred by
(1) failing to ensure he knowingly, intelligently, and
voluntarily waived his right to a jury trial and denying his
1 The Honorable Faʻauuga L. Toʻotoʻo presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
motion to set aside that waiver (points of error (POE) 1 and 2);
(2) failing to ensure he knowingly, intelligently, and
voluntarily waived his right to testify (POE 3); and (3) denying
his motion to dismiss for violation of his speedy trial and
Hawaiʻi Rules of Penal Procedure (HRPP) Rule 48 2 rights (POE 4).
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
2 HRPP Rule 48 provides in pertinent part:
Rule 48. Dismissal.
(a) By prosecutor. The prosecutor may by leave of court file a dismissal of a charge and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.
(b) By court. Except in the case of traffic offenses that are not punishable by imprisonment, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months:
(1) from the date of arrest if bail is set or from the filing of the charge, whichever is sooner, on any offense based on the same conduct or arising from the same criminal episode for which the arrest or charge was made; or
(2) from the date of re-arrest or re-filing of the charge, in cases where an initial charge was dismissed upon motion of the defendant; or
(3) from the date of mistrial, order granting a new trial or remand, in cases where such events require a new trial.
Clauses (b)(1) and (b)(2) shall not be applicable to any offense for which the arrest was made or the charge was filed prior to the effective date of the rule.
. . . .
(Formatting altered.)
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the issues raised and the arguments advanced, we resolve the
points of error as discussed below and affirm.
Vincent Vanterpool testified that on August 18, 2018,
he worked for Securitas as a security officer and resided at the
Nuʻuanu YMCA. At about 2:15 a.m., Vanterpool observed Midel and
Ryan Cavalear in a hallway "punching each other." As Vanterpool
approached Midel and Cavalear, Midel "did a right-hand swing
towards [Cavalear], and [Cavalear's] legs locked up, and
[Cavalear] fell over." Midel turned around, and Vanterpool saw
"a large black knife" in Midel's right hand. Vanterpool heard
Midel "mention[] everybody there was magical, which [Vanterpool]
thought was strange." Midel then "looked down at [Cavalear] and
said, I can't leave him like this, he's still alive" and pushed
the knife into Cavalear's neck. Cavalear died.
In October 2018, the State filed a superseding
indictment charging Midel for Murder in the Second Degree in
Case No. 1CPC-XX-XXXXXXX. Midel moved to dismiss for violation
of HRPP Rule 48; the circuit court granted Midel's motion and
dismissed the superseding indictment without prejudice.
In October 2019, the State reindicted Midel for Murder
in the Second Degree in the proceeding underlying this appeal.
The State moved to set a firm trial week and informed the
circuit court that the former Chief Medical Examiner for the
City and County of Honolulu, Dr. Christopher Happy (Dr. Happy),
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was a necessary witness but now resided on the continent. The
State noted that HRPP Rule 48 "runs on March 30, 2020."
A jury trial was scheduled for the week of January 6,
2020. Midel, against his counsel's advice, waived his right to
a jury trial. The circuit court set a new trial week beginning
March 23, 2020.
On March 16, 2020, days before the scheduled trial,
the Hawaiʻi Supreme Court announced that all ongoing trials would
be postponed until after April 30, 2020, due to the COVID-19
pandemic. In re Judiciary's Response to the COVID-19 Outbreak,
SCMF-XX-XXXXXXX, docket #1, filed Mar. 16, 2020.
The circuit court rescheduled Midel's trial from
March 23, 2020, to May 4, 2020.
On April 27, 2020, the Hawaiʻi Supreme Court entered an
order prohibiting persons from entering judiciary facilities if
they had traveled in the prior fourteen days. In re Judiciary's
Response to the COVID-19 Outbreak, SCMF-XX-XXXXXXX, docket #19,
filed Apr. 27, 2020. The parties agreed to continue the trial
to June 29, 2020.
A bench trial was held on June 29 and 30, 2020. At
the conclusion of proceedings on June 30, the State indicated it
had one more witness to present, Dr. Happy. The circuit court
recessed and scheduled a status conference to discuss when
Dr. Happy would be able to return to Hawaiʻi to testify. 4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On August 10, 2020, at the status conference, the
parties discussed resuming trial the week of October 12, 2020.
The State disclosed that Dr. Happy was willing to test for
COVID-19 to return to testify, but that if a two-week quarantine
requirement for incoming travelers was reimposed, Dr. Happy
would not come and the State would request another continuance.
On October 15, 2020, the circuit court continued the
trial from October 29, 2020, to November 17, 2020.
On October 22, 2020, the Hawaiʻi Supreme Court issued
an order allowing persons who had traveled in the prior fourteen
days to enter judiciary facilities if they tested negative for
COVID-19 within seventy-two hours from the final leg of
departure. In re Judiciary's Response to the COVID-19 Outbreak,
SCMF-XX-XXXXXXX, docket #69, filed Oct. 22, 2020.
On November 16, 2020, trial was continued again to
December 29, 2020.
On December 29, 2020, the State was not ready to
proceed and requested a three-month continuance. The State
indicated that, in order to fly in to testify on December 29,
2020, Dr. Happy was required to take a COVID-19 test on
Christmas Day, but the State was unable to secure an appointment
that day or to guarantee that the results would be received on
time. The deputy prosecuting attorney further informed the
circuit court that a new deputy would be assigned to complete
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the trial, though that was not the reason for the requested
continuance. Midel's counsel stated, "[w]e understand [HRPP]
Rule 48 does not apply. . . . But we are objecting to any
continuance, especially three months." Over Midel's objection,
the circuit court continued the trial to March 25, 2021.
On March 25, 2021, Dr. Happy testified, and the State
rested its case-in-chief. Midel waived his right to testify,
exercised his right not to testify, and rested without
presenting any witnesses or evidence.
On May 26, 2021, Midel moved to dismiss the indictment
for violation of his speedy trial and HRPP Rule 48 rights
(Motion to Dismiss).
On June 17, 2021, the circuit court denied Midel's
Motion to Dismiss, found Midel guilty of second-degree murder,
and scheduled sentencing for September 15, 2021.
On August 2, 2021, Midel filed a Motion to Appoint
Three Qualified Examiners pursuant to HRS § 704-404
(Supp. 2020), which was granted. 3 Of the three examiner reports,
two opined Midel was not fit to proceed, and the third opined
that he was.
3 The Honorable Christine E. Kuriyama presided over the hearings pertaining to Midel's fitness to proceed.
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On January 13, 2022, the circuit court found that
Midel was not fit to proceed and committed Midel to the custody
of the State Director of Health.
On March 21, 2022, the Hawaiʻi State Hospital requested
that the circuit court appoint a panel to reassess Midel's
"current fitness to proceed," noting that Midel did "not appear
to be experiencing symptoms of a mental disease, disorder or
defect." The circuit court granted Hawaiʻi State Hospital's
request, and later received three examiner reports, all opining
that Midel was fit to proceed. The circuit court found Midel
fit to proceed.
On July 18, 2023, Midel filed a Motion to Set Aside
Waiver of Jury Trial. Following a hearing, the circuit court
denied Midel's motion.
On September 25, 2024, the circuit court sentenced
Midel to life in prison with the possibility of parole and
ordered restitution.
Midel timely appealed.
(1) First, Midel contends the circuit court erred by
failing to ensure he knowingly, intelligently, and voluntarily
waived his right to a jury trial and by denying his motion to
set aside that waiver.
"It is well established that Hawaiʻi law recognizes the
right to a jury trial as a fundamental right." State v. Torres, 7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
144 Hawaiʻi 282, 288, 439 P.3d 234, 240 (2019) (footnote
omitted). "This right cannot be relinquished absent a knowing,
intelligent, and voluntary waiver." Id.
Defendants carry "the burden of demonstrating by a
preponderance of the evidence that [their] waiver was
involuntary." State v. Gomez-Lobato, 130 Hawaiʻi 465, 469, 312
P.3d 897, 901 (2013) (internal quotation marks and citation
omitted). We note that Midel does not point to where in the
record he objected to the circuit court's colloquy as
insufficient. See Hawaiʻi Rules of Appellate Procedure
Rule 28(b)(4) (requiring appellants to state "where in the
record the alleged error was objected to").
(a) Midel argues the circuit erroneously found his
waiver was knowing, intelligent, and voluntary.
"A waiver is knowing and intelligent when it is made
with full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it."
Torres, 144 Hawaiʻi at 288, 439 P.3d at 240 (internal quotation
marks and citation omitted).
To determine whether a waiver is knowing and
intelligent, the Hawaiʻi Supreme Court has advised trial courts
to conduct a Duarte-Higareda colloquy, which informs the
defendant that: "(1) twelve members of the community compose a
jury, (2) the defendant may take part in jury selection, (3) a 8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
jury verdict must be unanimous, and (4) the court alone decides
guilt or innocence if the defendant waives a jury trial." Id.
(citing U.S. v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir.
1997)).
"A waiver is voluntary when it was the product of a
free and deliberate choice rather than intimidation, coercion,
or deception." Id. (internal quotation marks and citation
omitted).
Here, the circuit court's questions tracked the
Duarte-Higareda colloquy. The circuit court explained that
Midel and his "lawyer and prosecutor will help select 12 people
from the community"; "all those 12 people must . . . unanimously
agree that [he is] guilty"; and "[he is] now asking the court to
listen to the evidence in [his] case and then the court will
decide whether [he is] guilty or not guilty based on the
evidence[.]" After each advisement, Midel indicated he
understood. Thus, Midel's waiver was knowing and intelligent.
The circuit court also asked whether anyone was
forcing Midel to waive his right to a jury trial or "making
[him] any promises." He responded no. Midel's responses
indicate his waiver was voluntary.
(b) Midel argues that the circuit court's colloquy
failed to consider his history of mental illness (a "salient
fact"), which the circuit court was apprised of through the
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pretrial bail report in Case No. 1CPC-XX-XXXXXXX that was
dismissed. "Salient facts, such as mental illness or language
barriers, require that a court effectively engage the defendant
in a dialogue that will effectuate the rationale behind the
colloquy and the on-the-record waiver requirements." State v.
Chong Hung Han, 130 Hawaiʻi 83, 92, 306 P.3d 128, 137 (2013)
(internal quotation marks omitted) (discussing salient facts in
the context of waiving the right to testify or not to testify).
The circuit court began its colloquy by asking if
Midel took any medication, was under a doctor's care, or
consumed alcohol that morning. Midel answered no to all three
questions.
The circuit court then asked Midel if his mind was
clear that morning. Midel answered yes. The circuit court
continued by asking questions to determine whether Midel
understood his right to a jury trial. Midel's responses show he
understood. The circuit court's questions were pertinent to
ascertaining whether Midel's waiver was knowing, voluntary, and
intelligent.
Nothing in the dialogue indicates that Midel's
responses were inappropriate or incoherent. Nothing in the
dialogue raises concerns regarding Midel's mental health.
And although Midel claims the pretrial bail report in
Case No. 1CPC-XX-XXXXXXX should have alerted the circuit court
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to the possibility of mental health concerns, Midel does not
explain how an eighteen-month-old pretrial bail report would
have indicated he was suffering from mental health issues at the
time he waived his right to a jury trial in this case.
Also, Midel appeared with counsel, who indicated she
advised him against giving up his right to a jury trial. In
light of counsel's contrary advice, the circuit court decided to
ask Midel more questions to ascertain whether Midel understood
his right to a jury trial and his waiver of that right. Nothing
from that conversation indicated that mental health was a
salient fact during that waiver.
(c) Midel also argues the circuit court failed to
conduct any meaningful dialogue as it required only yes or no
responses and the dialogue was "more akin to an advisory or a
lecture, as opposed to a thorough colloquy."
A "true" colloquy "consists of 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." State v. Celestine, 142 Hawaiʻi 165,
170, 415 P.3d 907, 912 (2018) (internal quotation marks,
emphasis, and citation omitted) (examining a true colloquy in
the context of the rights to testify and not to testify).
After almost each explanation, the circuit court asked
Midel if he understood and allowed Midel to answer. Contrary to
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Midel's assertion, the transcript does not reflect the circuit
court merely lectured Midel. And Midel does not proffer
suggested questions that would have rendered the colloquy a
"truer" colloquy.
In sum, Midel fails to meet his burden of showing, by
a preponderance of the evidence, that his waiver was involuntary
or that his substantial rights were affected. Moreover, for the
reasons discussed, the circuit court did not err by denying
Midel's motion to set aside the waiver of his right to a jury
trial.
(2) Midel next challenges the waiver of his right to
testify. As with his arguments regarding his waiver of his
right to a jury trial, Midel argues "the circuit court merely
read a lengthy advisement without engaging [him] in any
meaningful dialogue or discussion after each segment was covered
or pausing to ensure understanding [of] each aspect of the jury
trial." Midel also argues his "history of mental health
presented a 'salient fact' that should have prompted the circuit
court to ask additional questions to verify that [he] truly
understood the right that he was waiving." (Emphasis omitted.)
"Hawaiʻi law has historically protected both the right
to testify and the right not to testify." Id. at 169, 415 P.3d
at 911. To protect these rights, the trial court must conduct
an on-the-record colloquy. Id. at 169-70, 415 P.3d at 911-12.
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As stated above, a colloquy must be a true colloquy. Id. at
170, 415 P.3d at 912.
As to Midel's argument that the court did not engage
in a meaningful dialogue or pause to ensure his understanding,
the record shows that the court paused consistently to ascertain
Midel's understanding. The court also invited Midel to ask
questions and to take his time. Contrary to Midel's argument,
the circuit court's colloquy was meaningful.
As to Midel's argument that the circuit court failed
to consider the "salient fact" of his "history of mental
health," Midel does not point to anywhere in the proceedings
prior to the waiver of his right to testify where the court
should have been on notice that Midel's mental health was a
salient fact during that waiver. See State v. Adler, 108 Hawaiʻi
169, 178, 118 P.3d 652, 661 (2005) (explaining appellants bear
"the burden to show error by reference to matters in the record"
and courts are "not obligated to sift through the voluminous
record to verify an appellant's inadequately documented
contentions" (internal quotation marks and citations omitted)).
In sum, Midel failed to show that the circuit court's
colloquy affected his substantial rights.
(3) Finally, Midel challenges the denial of his
Motion to Dismiss. Citing State v. Alkire, Midel argues that
his "trial did not 'meaningfully' commence on June 29, 2020," 13 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
because "the State had no intention of completing the trial on
June 29, June 30, or soon thereafter." See 148 Hawaiʻi 73, 87,
468 P.3d 87, 101 (2020).
In Alkire, the Hawaiʻi Supreme Court explained that
"HRPP Rule 48 requires a 'meaningful' commencement of trial."
Id. at 87, 468 P.3d at 101. "[A] trial is 'meaningfully'
commenced when a trial court has 'reasonably' committed its
resources to the trial, which also requires that the parties be
ready to proceed." Id.
The State moved to set a firm trial week and informed
the circuit court that Dr. Happy was a necessary witness but now
resided on the continent. Trial was ultimately postponed due to
events related to COVID-19.
Trial commenced on June 29, 2020. Except for
Dr. Happy, the circuit court heard testimony from all of the
State's witnesses over the first two days, including:
(1) Honolulu Police Department (HPD) Officer Paul Acquavella,
(2) HPD Sergeant Darryl Jones, (3) HPD Evidence Specialist
Michael Lynch, (4) HPD Detective Jason Malacas, (5) HPD Evidence
Specialist Hideko Yoshihara, (6) Jorge Santos, (7) Vincent
Vanterpool, (8) HPD Officer Che-Wai Lau, (9) Dr. Matthew Koenig,
(10) HPD Officer Steven Lee, (11) HPD Evidence Specialist
Brittany Copp, (12) HPD Officer Christopher Chong, (13) HPD
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Evidence Specialist Garrick Baligad, (14) HPD Criminalist
Michelle Amorin, and (15) Quintin Iriarte.
And although Dr. Happy's ability (and willingness) to
travel was hampered by COVID-19 restrictions, the State was
otherwise ready to proceed, and the circuit court had reasonably
committed its resources to trial.
Under the particular circumstances of this case, we
decline to vacate Midel's conviction under Alkire. See id.
Based on the foregoing, we affirm the circuit court's
September 25, 2024 Judgment of Conviction and Sentence.
DATED: Honolulu, Hawaiʻi, February 25, 2026.
On the briefs: /s/ Keith K. Hiraoka Presiding Judge James S. Tabe, for Defendant-Appellant. /s/ Sonja M.P. McCullen Associate Judge Brian R. Vincent, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry City and County of Honolulu, Associate Judge for Plaintiff-Appellee.