APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 08-1-0023)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Ginoza, J.; and Reifurth, J., dissenting)
Defendant-Appellant Sage Million (Million) appeals from a December 16, 2010 Amended Judgment of Conviction and Probation Sentence (Amended Judgment), entered by Circuit Court of the Third Circuit (Circuit Court). *fn1
Following a jury trial, Million was found guilty of: (1) Count 1 - Terroristic Threatening in the First Degree, in violation of Hawaii Revised Statutes (HRS) §§ 707-715(1) and 707-716(1); (2) Count 4 - Reckless Driving of Vehicle, in violation of HRS § 291-2; and (3) Count 5 - Criminal Property Damage in the Fourth Degree, in violation of HRS § 708- 823.
On appeal, Million raises two points of error, contending that: (1) the Circuit Court erred in concluding that Million knowingly and intelligently waived his constitutional right to counsel; and (2) the Circuit Court's instruction to the jury on self-defense was plainly erroneous.
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 Million's points of error as follows:
In State v. Dickson, 4 Haw. App. 614, 673 P.2d 1036
(1983), this court held that "[t]he trial court is initially charged with the function of assuring that the defendant's waiver of counsel is made knowingly and intelligently and that the record is complete so as to reflect that waiver." Id. at 619, 673 P.2d at 1041. "The trial court should first examine the particular facts and circumstances relating to the defendant, such as the defendant's age, education, mental capacity, background and experience, and his conduct at the time of the alleged waiver." Id. (citations omitted).
"Secondly, in order to fully assure that the defendant is informed of the risks of self-representation, the trial court should make him aware of the nature of the charge, the elements of the offense, the pleas and defenses available, the punishments which may be imposed, and all other facts essential to a broad understanding of the whole matter." Id. at 619, 673 P.2d at 1041 (citations omitted).
"Finally, the trial court should inform the defendant: of his right to counsel, whether private or appointed; that self-representation is detrimental to himself; that he will be required to follow all technical rules and substantive, procedural, and evidentiary law; that the prosecution will be represented by able counsel; that a disruption of the trial could lead to vacation of the right to self-representation; and that if voluntary self-representation occurs, the defendant may not afterward claim that he had inadequate representation." Id. at 620, 673 P.2d at 1041-42 (internal citations omitted).
In this case, although the Circuit Court informed
Million that he had a right to representation and apprised him of the nature of the charges and punishments which may be imposed, the court failed to advise Million of the elements of offenses charged, the pleas and defenses available, the hazards of self- representation, that disruption at trial could lead to vacation of the right to self-representation, and that self-representation may not allow him to claim inadequate representation. As Million points out on appeal, the Circuit Court made an attempt to examine Million about his education and work history, but not until after it examined and inquired about Million's waiver of his right to counsel, and without inquiry into his experience with the criminal justice system. Although such examination is "necessary to allow the trial court to determine the level and depth to which an explanation and inquiry must extend," we reject the proposition that, in every case, this query must precede the balance of the Dickson inquiry. See Dickson, 4 Haw. App. at 619, 673 P.2d at 1041. Yet, in this case, the circumstances warranted a more thorough, and perhaps an earlier, examination.
At the hearing in which Million waived his right to representation, the discussion regarding waiver of the right to ...