CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000338; FC-CR NO. 10-1-279K).
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., WITH ACOBA, J., CONCURRING SEPARATELY.
Luis Gomez-Lobato was charged with one count of Abuse of Family or Household Member in relation to an incident involving his former girlfriend. At a pre-trial hearing, Gomez-Lobato was represented by counsel and had the assistance of a Spanish-language interpreter. After a brief exchange, the Family Court of the Third Circuit Court recessed, and Gomez-Lobato and his interpreter reviewed the standardized jury trial waiver form. Gomez-Lobato provided his initials and signature on the form. The family court then reconvened and asked Gomez-Lobato several questions through the interpreter, including: (1) whether his initials and signature were on the form; (2) whether he understood what he was signing; (3) whether the form was explained to him in Spanish; and (4) whether he discussed the form with his attorney. Gomez-Lobato answered these questions affirmatively. The family court also asked Gomez-Lobato if he had any questions, to which Gomez-Lobato responded, "No." The family court concluded that Gomez-Lobato knowingly, voluntarily, and intelligently waived his right to a jury trial.
Following a bench trial, Gomez-Lobato was convicted of one count of Abuse of Family or Household Member. Gomez-Lobato appealed to the Intermediate Court of Appeals and argued that he did not validly waive his right to a jury trial. The ICA, however, affirmed his conviction and determined, inter alia, that under the totality of the circumstances, Gomez-Lobato knowingly, voluntarily, and intelligently waived his right to a trial by jury. State v. Gomez-Lobato, No. CAAP-11-0000338, 2012 WL 5272234, at **1-2 (Haw. App. Oct. 25, 2012).
In his application for writ of certiorari, Gomez-Lobato raises the following questions: (1) whether he validly waived his right to a jury trial; and (2) whether the family court erred in sentencing Gomez-Lobato. Based on the record before us, we conclude that the family court erred in determining that Gomez-Lobato's jury waiver was made voluntarily, knowingly, and intelligently. We therefore vacate the ICA's and the family court's judgments and remand the case for a new trial. Given this disposition, we do not address Gomez-Lobato's argument regarding sentencing.
The following factual background is taken from the record on appeal.
A. Family Court Proceedings
Gomez-Lobato was charged by complaint with "intentionally, knowingly or recklessly physically abus[ing Complainant], a family or household member, thereby committing the offense of Abuse of Family or Household Member, " in violation of Hawai'i Revised Statutes (HRS) § 709-906(1).
At his Entry of Plea hearing, Gomez-Lobato, represented by a deputy public defender (DPD) and assisted by a Spanish interpreter, entered a not guilty plea. The DPD then stated that the interpreter needed to go over a waiver of jury trial form with Gomez-Lobato. The court then recessed. After reconvening, the following conversation occurred, with the assistance of the interpreter:
[DPD]: [Gomez-Lobato] has reviewed the waiver of jury trial form. . . . .
THE COURT: Good morning, Mr. Gomez Lobato. I have with me a waiver of jury trial form. Are these your initials, and is this your signature on this form?
THE COURT: Prior to placing your initials and signature on this form, did you understand what you were doing and signing?
THE COURT: And was that explained to you in Spanish?
THE COURT: Did you discuss this with your attorney?
THE COURT: Okay. Do you have any questions for me?
THE COURT: Okay. The Court concludes that the defendant knowingly, voluntarily, intelligently waived his rights to a jury trial.
In the Waiver of Jury Trial form, Gomez-Lobato provided his initials next to the following statements, which were written in English:
2. I understand that I have the constitutional right to a jury trial. Furthermore, I understand that a jury trial is a trial in the Circuit Court before a judge and a jury and that I can participate in the process of selecting a jury of twelve (12) citizens from the Third Circuit. This jury would hear the evidence in my case, and then decide if I am guilty or not guilty. Finally I understand that in order for me to be convicted by a jury, their vote must be unanimous.
3. I know that if I give up my right to a jury trial, the trial will be held in this Court before a judge who alone would decide if I am guilty or not guilty. I request that my case be tried by a judge.
4b. I am satisfied with my attorney, and am entering this waiver with his [or] her advice.
5. I know that the punishment cannot be increased merely because I want a jury trial.
6. I am entering this waiver of my own free will after careful consideration. No promises or threats have been made to me to induce me to waive my right to a jury trial.
The State subsequently filed an Amended Complaint, which changed the date of the incident from "[o]n or about the 23rd day of September, 2010, " to "[o]n or about the 24th through the 25th day of September, 2010[.]" No further waiver of jury trial form was executed in relation to the Amended Complaint.
The family court held a one-day bench trial,  at the conclusion of which the family court determined that the State proved beyond a reasonable doubt that the defendant committed the offense of Abuse of Family or Household Member. Accordingly, the family court entered its Judgment, Guilty Conviction and Sentence finding Gomez-Lobato guilty, and sentencing him to two years probation. Gomez-Lobato timely filed a notice of appeal.
B. ICA Appeal
In his opening brief, Gomez-Lobato argued, inter alia, that the family court plainly erred in proceeding with a bench trial when Gomez-Lobato did not validly waive his right to a jury trial. Gomez-Lobato, citing United States v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997), specifically argued that "[a]lthough a Spanish interpreter was present to assist [him], the [family] court never directly addressed [him] to verify his understanding of the jury waiver." (Emphasis in original). Gomez-Lobato contended that the "court just asked yes/no questions despite [his] language barrier" and "never ascertained if [he] truly understood the waiver of the right to trial by jury."
In its answering brief, the State argued that Gomez-Lobato did not argue below that the waiver of his right to a jury trial was invalid and, accordingly, this issue could only be reviewed for plain error. Nevertheless, the State argued that under the totality of the circumstances, Gomez-Lobato validly waived his right to a jury trial orally and in writing.
Gomez-Lobato filed a reply brief, in which he reasserted his argument that he did not provide a valid waiver of his right to a jury trial given the "language barrier, " and argued that he did not provide a "knowing, intelligent and voluntary waiver" of his right to a jury trial on the charge set forth in the amended complaint because "the State did not even properly present the date of the alleged offense to [him] at the time of the alleged waiver[.]"
In a summary disposition order, the ICA determined that, under the totality of the circumstances, the family court did not err in concluding that Gomez-Lobato's waiver of a jury trial was knowing, intelligent, and voluntary. Gomez-Lobato, 2012 WL 5272234, at *1. The ICA also rejected Gomez-Lobato's other arguments on appeal. Id. at *2. Accordingly, the ICA affirmed the family court's March 15, 2011 Judgment, Guilty Conviction and Sentence. Gomez-Lobato timely filed an application for writ of certiorari. The State did not file a response.
II. Standard of Review
The validity of a criminal defendant's waiver of his or her right to a jury trial presents a question of state and federal constitutional law. . . . We answer questions of constitutional law by exercising our own independent constitutional judgment based on the facts of the case. Thus, we review questions of constitutional law under the right/wrong standard.
State v. Friedman, 93 Hawai'i 63, 67, 996 P.2d 268, 272 (2000) (citations and quotation marks omitted).
A. The record does not reflect that Gomez-Lobato knowingly, voluntarily, and intelligently waived his right to a jury trial
In his application, Gomez-Lobato argues that the family court failed to adequately ensure that he understood that he was waiving his right to a jury trial. Gomez-Lobato specifically contends: "When the court addressed [him] there was a language barrier where the court solicited one word responses (yes/no) to questions, rather than delving into whether [he] clearly understood exactly what constitutional right [he] was giving up." As discussed below, based on the record before us, we cannot conclude that Gomez-Lobato knowingly, voluntarily, and intelligently waived his right to a jury trial.
A criminal defendant is statutorily entitled to a trial by jury when the potential penalty for the charged crime is imprisonment for six months or more. HRS § 806-60. A defendant is also entitled to waive his or her right to a jury trial. See State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993) (citing HRPP Rule 5(b)(3)). Generally, "[t]he waiver shall be either by written consent filed in court or by oral consent in open court entered on the record." HRPP Rule 23(a). Although the rule indicates the waiver may be given by written or oral consent, the rule does not relieve the court of its obligation to ensure, through an appropriate oral colloquy in court, that the waiver was knowingly, intelligently, and voluntarily given. Cf. Tachibana v. State, 79 Hawai'i 226, 236, 900 P.2d 1293 (1995) (requiring on-the-record waiver of defendant's right to testify). In other words, while the defendant may execute 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. See Ibuos, 75 Haw. at 121, 857 P.2d at 578 ("The necessity for colloquy between the court and a defendant is especially apparent in light of the importance we place on the personal nature of a defendant's right to a jury trial."); Friedman, 93 Hawai'i at 68, 996 P.2d at 273. Lastly, "[w]here it appears from the record that a defendant has voluntarily waived a constitutional right to a jury trial, the defendant carries the burden of demonstrating by a preponderance of the evidence that his/her waiver was involuntary." Friedman, 93 Hawai'i at 69, 996 P.2d at 274 (citing Ibuos, 75 Haw. at 121, 857 P.2d at 578).
In Friedman, this court provided further guidance on determining the validity of a waiver of the constitutional right to a jury trial. The defendant, Bernd Friedman, was charged with abuse of a family or household member. Id. at 65-66, 996 P.2d at 270-71. At his arraignment, the trial court engaged Friedman in the following colloquy:
THE COURT: You're going to enter a plea of not guilty to the complaint in this case, you're also going to give up your right to a jury trial; is that correct?
THE COURT: And, you understand what a jury trial's about?
THE COURT: And can you explain in your own words what you understand that to mean?
[Friedman]: A jury trial is where the outcome of the-the results of whether it's guilty or not is to be determined by 12 adults instead of a judge.
The COURT: So by waiving that right means that your case will be decided by a judge, the judge alone is to decide your guilt or innocence.
[Friedman]: Yes, Your Honor.
THE COURT: Is your decision to waive your right to jury trial something you thought about and decided to do yourself voluntarily[?]
Id. at 66, 996 P.2d at 271.
On appeal, Friedman, citing the Ninth Circuit's opinion in Duarte-Higareda,  argued that the trial court erred in failing to obtain a valid waiver of his right to a jury trial because he was not orally informed that a jury is comprised of twelve members, that he could take part in jury selection, or that a jury verdict must be unanimous. Id. at 69, 996 P.2d at 274.
This court expressly rejected Friedman's argument:
Friedman appears to urge this court to adopt a "bright line rule" that a jury waiver can never be voluntary and knowing if a trial court fails to advise a defendant of any of the four aspects of a jury trial, as expressed in the colloquy suggested in Duarte-Higareda. . . . [H]owever, Duarte-Higareda does not stand for the proposition that its suggested colloquy is required in every case. Although we are mindful of a criminal defendant's fundamental right to a jury trial and advise the trial court to engage in such a colloquy to aid in ensuring ...