NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION . (Case No. 1P111-10067).
Phyllis J. Hironaka, Deputy Public Defender, for Defendant-Appellant.
James M. Anderson, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee.
Nakamura, C.J. and Fujise, J., with Reifurth, J., concurring separately.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Scott Lee Gordon (Gordon) appeals from the November 25, 2011 Judgment entered by the District Court of the First Circuit, Honolulu Division (District Court).
Gordon was convicted of Theft in the Fourth Degree, in violation of Hawaii Revised Statutes (HRS) § 708-833(1) (1993).
On appeal, Gordon contends (1) the District Court plainly erred by failing to dismiss the charge because of the failure to preserve video surveillance of Gordon, thereby violating his- right to4idue process under the United States and Hawai'i Constitutions, (2) Gordon's right to testify was violated by an inadequate colloquy required by Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995) and State v. Lewis, 94 Hawai'i 292, 12 P.3d 1233 (2000), and (3) there was insufficient evidence to demonstrate that Gordon acted with the requisite mens rea..
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 Gordon's points of error as follows:
(1) The District Court did not plainly err by failing to dismiss the charge due to unavailability of a surveillance video. In State v. Matafeo, 71 Haw. 183, 185-86, 787 P.2d 671, 672 (1990), the court stated:
In Brady v. Maryland, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to the accused violates due process where the evidence is material to guilt or punishment, regardless of the good faith or bad faith of the prosecution. [373 U.S. 83, 87, 10 L.Ed.2d 215, 218, 83 S.Ct. 1194, 1196 (1963)]. The Brady rule has been incorporated into the Hawaii due process jurisprudence and relied upon frequently by this court. See generally State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987); State v. Arnold, 66 Haw. 175, 657 P.2d 1052 (1983); State v. Marzo, 64 Haw. 395, 641 P.2d 1338 (1982).
In this case, no surveillance video recording was given to the State. Consequently, the State did not suppress any evidence. Furthermore, Gordon's assertion that the video surveillance footage was exculpatory or otherwise favorable to him is not supported by the evidence presented to the District Court. An asset protection coordinator employed by the complainant testified that he reviewed the surveillance video . following Gordon's arrest in order to determine whether what was being reported by the loss prevention officer was consistent with the recording and that if the video surveillance footage was not accurately reflected in the report he would have saved the video at that time. The asset protection coordinator did not save the video at that time.
(2) Gordon did not validly waive his right to testify because the District Court did not properly advise Gordon of his Tachibana rights or conduct a colloquy that involved a verbal exchange in which the District Court could ascertain Gordon's understanding of his rights. State v. Han, ___ Hawai'i ___, 306 P.3d 128, SCWC-11-0000814, 2013 WL 3063769, at *1 (Haw. June 19, 2013). In Han, the Supreme Court further clarified the colloquy-requirement under Tachibana and Lewis by noting,
"Colloquy" is defined as " [a] ny formal discussion, such as an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the nudge ascertains the defendant's understanding of the proceedings and of the defendant's rights." Black's Law ...