NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE Nos. 1P111-03535 AND 1P111-03536).
Glenn D. Choy for Defendant-Appellant.
Brandon H. Ito Deputy Prosecuting Attorney, City and County of Honolulu for Plaintiff-Appellee.
Foley, Presiding J., Fujise and Leonard, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Indira D. Lopez Ruiz appeals from the "Notice of Entry of Judgment And/Or Order" entered March 23, 2012 in the District Court of the First Circuit (district court) convicting her of two counts of assault in the third degree. Ruiz contends the district court erred in denying her oral motion to dismiss due to insufficiency in the arraignment, in denying her motion to dismiss in the interest of justice, in determining that she was guilty, and in not staying her sentence pending appeal.
Plaintiff-Appellee State of Hawai'i (State) in its answering brief points out the record of this case seems to reflect that there may have been a violation of Ruiz's right to testify pursuant to Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995) . In Tachibana, the Hawai'i Supreme Court recognized that "[t]he decision to testify is ultimately committed to a defendant's own discretion." 79 Hawai'i at 232, 900 P.2d at 1299
(internal quotation marks and brackets omitted). The supreme court recognized that "a defendant's personal constitutional right to testify truthfully in his [or her] own behalf may not be waived by counsel as a matter of trial strategy, " and "may be relinquished only by the defendant." Id. (citations and internal quotation marks omitted). The supreme court held that, "in order to protect the right to testify under the Hawai'i Constitution, trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify." Id. at 236 & n.7, 900 P.2d at 1303 & n.7 (footnote omitted).
In this case, the following exchange occurred prior to trial:
THE COURT: All right. Ms. Ruiz, at this point it is my duty to inform you and advise you as to your right against self[-]incrimination. That means that you -- a decision as to whether or not you're going to testify at trial is solely your decision, not your counsel, and you have a constitutional right not to testify and the court will not take any negative inferences if you choose to exercise your constitutional right. I will, at the appropriate moment re-advise you of your constitutional right against self-incrimination. Do you understand?
[RUIZ]: Yes, I do. And I appreciate you interpreting that for me because it has not been respected in other cases.
However, the following exchange occurred after the State rested:
THE COURT: . . . The State having rested, [defense counsel], does the defense have any witnesses?
[DEFENSE COUNSEL]: Your Honor, after conferring with [Ruiz], she has decided to maintain her right against - her right to silence ...