NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT (CASE NO. 3P811-0000164)
On the briefs: Page C. Kraker Deputy Public Defender for Defendant-Appellant.
Linda L. Walton Deputy Prosecuting Attorney, County of Hawai'i for Plaintiff-Appellee.
Foley, Presiding J., Fujise and Ginoza, JJ.
Defendant-Appellant Jerry Halvorson appeals from the "Amended Judgment of Conviction & Sentence" filed June 14, 2012 nunc pro tunc to April 18, 2012 in the District Court of the Third Circuit (district court). Halvorson was convicted of criminal property damage in the fourth degree pursuant to Hawaii Revised Statutes (HRS) § 708-823 (Supp. 2012) and sentenced to probation for a term of six months, made to pay restitution, and fined $500.
On appeal, Halvorson contends the district court erred:
(1) in concluding he knowingly and intelligently waived his constitutional right to counsel;
(2) in violating his right to testify when it failed to properly advise him of his right to testify pursuant to Tachibana v. State and ensure whether his waiver of his right to testify was voluntary and knowing; and
(3) in abusing its discretion by precluding his presenting an alibi defense.
On June 5, 2011, Plaintiff-Appellee State of Hawai'i (State) charged Halvorson, via complaint, with the offense of criminal property damage in the fourth degree in violation of HRS §708-823(1). The complaint read as follows:
On or about the 5th day of June, 2011, in Ka'u, County and State of Hawai'i, [Halvorson], by means other than fire, intentionally or knowingly damaged property of another, sign, without [complaining witness's] consent, thereby committing the offense of [c]riminal [p]roperty [d]amage in the [f]ourth [d]egree, in violation of Section 708-832(1), [HRS], as amended.
On February 1'6, 2 012, Halvorson appeared at the Ka'u District Court for Pretrial Conference where the district court addressed Halvorson's request to waive his .right to an attorney. Halvorson executed the Waiver of Right to an Attorney form and answered questions from the district court regarding his right to an attorney and his decision to proceed pro se. The following exchange occurred:
THE COURT: Okay. Mr. Halvorson, did you read and understand this waiver of right to attorney?
THE COURT: And are these your initials in paragraphs ...