NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-JUL-2024 08:00 AM Dkt. 107 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. NICHOLAS MONTIBON, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (WAHIAWA DIVISION) (CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)
Defendant-Appellant Nicholas Montibon (Montibon)
appeals from the November 2, 2017 Notice of Entry of Judgment
and/or Order (Judgment), entered by the District Court of the
First Circuit, Wahiawâ Division (District Court).1 On November
1, 2016, the State of Hawai#i (State) charged Montibon by
Complaint with one count of Sexual Assault in the Fourth Degree
in violation of Hawaii Revised Statutes (HRS) § 707-733(1)(a)
(Supp. 2023), and two counts of Attempted Sexual Assault in the
1 The Honorable Maura M. Okamoto presided over the November 17, 2016 pretrial proceedings. The Honorable Patricia A. McManaman presided at trial. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Fourth Degree in violation of HRS §§ 705-500(1)(b) (2014) and
707-733(1)(a).
Montibon raises two points of error on appeal
contending that: (1) Montibon's waiver of a jury trial was not
valid because the District Court failed to conduct a proper
colloquy; and (2) the flawed procedural history of this case
rendered the District Court's Tachibana colloquy illogical and meaningless, particularly with respect to Montibon's right not to
testify.
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 Montibon's points of error as follows:
(1) Montibon argues that the waiver of his right to a
jury trial was not valid because the District Court failed to
ensure that it was the product of a knowing and voluntary
decision.
It is well-established that: When a criminal defendant has the right to a jury trial, the trial court is required to "inform the defendant of the right to jury trial in the circuit court[,] and that the defendant may elect to be tried without a jury in the district court." Hawai#i Rules of Penal Procedure ("HRPP") Rule 5(b)(1) (2014). This serves several purposes: "(1) it more effectively insures voluntary, knowing, and intelligent waivers[;] (2) it promotes judicial economy by avoiding challenges to the validity of waivers on appeal[;] and (3) it emphasizes to the defendant the seriousness of the decision[.]" State v. Friedman, 93 Hawai#i 63, 68, 996 P.2d 268, 273 (2000) (quoting United States v. Cochran, 770 F.2d 850, 851-52 (9th Cir. 1985)).
A defendant may waive the right to trial by jury either orally or in writing, provided that such waiver is knowing and voluntary, and comes directly from the defendant. State v. Ibuos, 75 Hawai#i 118, 121, 857 P.2d
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
576, 578 (1993). But, even where the defendant executes a written waiver form, "the court should also engage in an oral colloquy with the defendant to establish that the waiver was knowing, intelligent, and voluntary." [State v. Gomez-Lobato, 130 Hawai#i 465, 469, 312 P.3d 867, 901 (2013)]. The validity of a defendant's waiver of the right to a jury trial is reviewed "under the totality of the circumstances surrounding the case, taking into account the defendant's background, experience, and conduct." Friedman, 93 Hawai#i at 70, 996 P.2d at 275 (citation omitted).
State v. Ernes, 147 Hawai#i 316, 320-21, 465 P.3d 763, 767-68
(2020).
On November 17, 2016, when Montibon's case was called, Montibon's attorney waived reading of the charges, stated
Montibon was entering a not guilty plea, and requested a trial
setting. The District Court asked, "do we need to do a waiver or
demand?" Counsel informed the court, "he's going to waive." The
District Court told counsel there was a form for that. The
District Court then stated that it would pass the case "for a
minute," and "I'm going to let you just talk to your client real
briefly. He needs to read through that. Make sure he
understands. Then as soon as you're ready, we'll call you back up."
Montibon signed and filed a Waiver of Jury Trial form,
which states: I, the undersigned, have read completely this waiver form and understand that by signing it, I am now and forever voluntarily waiving and giving up my right to trial by jury on the present charges. I further understand that I have the right to be tried by a jury of not less than twelve (12) citizens drawn from the community and that all of those twelve jurors would have to unanimously agree that the evidence introduced against me at trial proved my guilt beyond a reasonable doubt before I could be convicted of the charges against me. If any one of those twelve should find the evidence not persuasive beyond a reasonable doubt, a conviction could not be entered. Further, I would have an opportunity to help select which
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
members of the community might serve on the jury and to ask questions of prospective jurors. By giving up my right to trial by jury I understand that the evidence at any trial will be considered and all decisions regarding my guilt or innocence will be made by a single Judge of the District Court. I am not under the influence of any drugs or alcohol at this time, and my mind is clear. I fully understand the nature of my right to trial by jury and that the decision to give up the right is entirely up to me. If I do not give up the right to trial by jury at this time, I understand that my case will be sent to the Circuit Court for a jury trial.
I HEREBY WAIVE AND GIVE UP MY RIGHT TO BE TRIED BY A JURY AND AGREE THAT MY CASE MAY BE TRIED BY A SINGLE JUDGE.
When the case was recalled, the colloquy proceeded as
follows: [Montibon's Attorney]: And, Your Honor, we -- we did complete the waiver of jury trial, Judge. (Indiscernible) deputy prosecuting attorney (indiscernible).
THE COURT: Thank you.
So, sir, and you went over this form with your attorney?
[Montibon]: Yes. THE COURT: Okay. And what you have decided to do is give up your right to have a trial by jury; is that correct?
[Montibon]: Correct. THE COURT: And tell me, what is a trial by jury? Who makes the decision?
[Montibon]: The jury, 12 people. THE COURT: Yeah. And they have to come to a unanimous decision. You're saying, I give up that right, and I will let a single judge decide this matter if it goes to trial; yeah? Okay.
So then I find that you have waived your right to a jury trial, and the waiver was knowingly, intelligently, and voluntarily made. So, now, we're going to set this matter for trial.
As stated above, the validity of Montibon's waiver of
the right to a jury trial is reviewed under the totality of the
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
circumstances.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-JUL-2024 08:00 AM Dkt. 107 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. NICHOLAS MONTIBON, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (WAHIAWA DIVISION) (CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)
Defendant-Appellant Nicholas Montibon (Montibon)
appeals from the November 2, 2017 Notice of Entry of Judgment
and/or Order (Judgment), entered by the District Court of the
First Circuit, Wahiawâ Division (District Court).1 On November
1, 2016, the State of Hawai#i (State) charged Montibon by
Complaint with one count of Sexual Assault in the Fourth Degree
in violation of Hawaii Revised Statutes (HRS) § 707-733(1)(a)
(Supp. 2023), and two counts of Attempted Sexual Assault in the
1 The Honorable Maura M. Okamoto presided over the November 17, 2016 pretrial proceedings. The Honorable Patricia A. McManaman presided at trial. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Fourth Degree in violation of HRS §§ 705-500(1)(b) (2014) and
707-733(1)(a).
Montibon raises two points of error on appeal
contending that: (1) Montibon's waiver of a jury trial was not
valid because the District Court failed to conduct a proper
colloquy; and (2) the flawed procedural history of this case
rendered the District Court's Tachibana colloquy illogical and meaningless, particularly with respect to Montibon's right not to
testify.
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 Montibon's points of error as follows:
(1) Montibon argues that the waiver of his right to a
jury trial was not valid because the District Court failed to
ensure that it was the product of a knowing and voluntary
decision.
It is well-established that: When a criminal defendant has the right to a jury trial, the trial court is required to "inform the defendant of the right to jury trial in the circuit court[,] and that the defendant may elect to be tried without a jury in the district court." Hawai#i Rules of Penal Procedure ("HRPP") Rule 5(b)(1) (2014). This serves several purposes: "(1) it more effectively insures voluntary, knowing, and intelligent waivers[;] (2) it promotes judicial economy by avoiding challenges to the validity of waivers on appeal[;] and (3) it emphasizes to the defendant the seriousness of the decision[.]" State v. Friedman, 93 Hawai#i 63, 68, 996 P.2d 268, 273 (2000) (quoting United States v. Cochran, 770 F.2d 850, 851-52 (9th Cir. 1985)).
A defendant may waive the right to trial by jury either orally or in writing, provided that such waiver is knowing and voluntary, and comes directly from the defendant. State v. Ibuos, 75 Hawai#i 118, 121, 857 P.2d
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
576, 578 (1993). But, even where the defendant executes a written waiver form, "the court should also engage in an oral colloquy with the defendant to establish that the waiver was knowing, intelligent, and voluntary." [State v. Gomez-Lobato, 130 Hawai#i 465, 469, 312 P.3d 867, 901 (2013)]. The validity of a defendant's waiver of the right to a jury trial is reviewed "under the totality of the circumstances surrounding the case, taking into account the defendant's background, experience, and conduct." Friedman, 93 Hawai#i at 70, 996 P.2d at 275 (citation omitted).
State v. Ernes, 147 Hawai#i 316, 320-21, 465 P.3d 763, 767-68
(2020).
On November 17, 2016, when Montibon's case was called, Montibon's attorney waived reading of the charges, stated
Montibon was entering a not guilty plea, and requested a trial
setting. The District Court asked, "do we need to do a waiver or
demand?" Counsel informed the court, "he's going to waive." The
District Court told counsel there was a form for that. The
District Court then stated that it would pass the case "for a
minute," and "I'm going to let you just talk to your client real
briefly. He needs to read through that. Make sure he
understands. Then as soon as you're ready, we'll call you back up."
Montibon signed and filed a Waiver of Jury Trial form,
which states: I, the undersigned, have read completely this waiver form and understand that by signing it, I am now and forever voluntarily waiving and giving up my right to trial by jury on the present charges. I further understand that I have the right to be tried by a jury of not less than twelve (12) citizens drawn from the community and that all of those twelve jurors would have to unanimously agree that the evidence introduced against me at trial proved my guilt beyond a reasonable doubt before I could be convicted of the charges against me. If any one of those twelve should find the evidence not persuasive beyond a reasonable doubt, a conviction could not be entered. Further, I would have an opportunity to help select which
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
members of the community might serve on the jury and to ask questions of prospective jurors. By giving up my right to trial by jury I understand that the evidence at any trial will be considered and all decisions regarding my guilt or innocence will be made by a single Judge of the District Court. I am not under the influence of any drugs or alcohol at this time, and my mind is clear. I fully understand the nature of my right to trial by jury and that the decision to give up the right is entirely up to me. If I do not give up the right to trial by jury at this time, I understand that my case will be sent to the Circuit Court for a jury trial.
I HEREBY WAIVE AND GIVE UP MY RIGHT TO BE TRIED BY A JURY AND AGREE THAT MY CASE MAY BE TRIED BY A SINGLE JUDGE.
When the case was recalled, the colloquy proceeded as
follows: [Montibon's Attorney]: And, Your Honor, we -- we did complete the waiver of jury trial, Judge. (Indiscernible) deputy prosecuting attorney (indiscernible).
THE COURT: Thank you.
So, sir, and you went over this form with your attorney?
[Montibon]: Yes. THE COURT: Okay. And what you have decided to do is give up your right to have a trial by jury; is that correct?
[Montibon]: Correct. THE COURT: And tell me, what is a trial by jury? Who makes the decision?
[Montibon]: The jury, 12 people. THE COURT: Yeah. And they have to come to a unanimous decision. You're saying, I give up that right, and I will let a single judge decide this matter if it goes to trial; yeah? Okay.
So then I find that you have waived your right to a jury trial, and the waiver was knowingly, intelligently, and voluntarily made. So, now, we're going to set this matter for trial.
As stated above, the validity of Montibon's waiver of
the right to a jury trial is reviewed under the totality of the
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
circumstances. No argument is made concerning Montibon's
background, experience, and conduct, and he appeared to respond
appropriately in English to the District Court's scant questions.
However, the District Court's colloquy was wholly insufficient.
The only questions posed to Montibon were whether he went over
the form with his attorney, whether he decided to give up his
right to have a trial by jury, and who makes the decision in a jury trial. The record reflects that Montibon understood that a
jury decides a jury trial and is made up of 12 people. Nothing
more. The District Court did not even establish that the waiver
was voluntarily made by Montibon himself. The District Court did
not advise Montibon that the decision was entirely up to him, to
be made with advice of counsel. The District Court did not ask
Montibon whether he read and understood the waiver form or
whether he had any questions regarding his right to a jury trial.
While this jurisdiction has not required strict adherence to
particular questions, we note that the District Court did not
establish whether Montibon's mind was clear, whether he was under
the influence of drugs or alcohol, whether he understood he could
participate in the selection of jurors, and that a jury verdict
must be unanimous. Although the District Court stated that a
single judge would decide the matter, this was done as an
announcement in conjunction with the court's finding of a waiver,
not as part of a true colloquy as to Montibon's understanding of
his right to a jury trial.
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Based on the foregoing, inter alia, we conclude that
the District Court failed to ensure that Montibon's waiver of his
constitutional right to a jury trial was a knowing, intelligent,
and voluntary waiver.
(2) In light of our disposition of Montibon's first
point of error, we need not reach the issue of whether his
Tachibana colloquy was insufficient as well. Accordingly, the District Court's November 2, 2017
Judgment is vacated, and this case is remanded to the District
Court for further proceedings.
DATED: Honolulu, Hawai#i, July 26, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Walter J. Rodby, for Defendant-Appellant. /s/ Keith K. Hiraoka Associate Judge Stephen K. Tsushima, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry City and County of Honolulu, Associate Judge for Plaintiff-Appellee.