TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000833; CR.
Kim for petitioner.
NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ., WITH
RECKTENWALD, C.J., CONCURRING SEPARATELY
case concerns a challenge by Kevin Paul Kim regarding the
validity of his waiver of the right to testify at trial. Kim
also contends that the trial court's warnings to him
during trial intimidated him and influenced his decision not
to testify. We hold that the record does not support a
conclusion that Kim's waiver of the right to testify was
voluntarily, intelligently, and knowingly made. Thus, we need
not resolve whether the trial court's statements
influenced Kim's decision not to testify, but in light of
Kim's contention we provide guidance on this issue.
March 5, 2012, the State filed a complaint against Kevin Paul
Kim in the Circuit Court of the First Circuit (circuit
court), alleging the following four counts: count 1, burglary
in the first degree, in violation of Hawaii Revised Statutes
(HRS) § 708-810(1)(c); count 2, terroristic threatening
in the second degree, in violation of HRS §
707-717; count 3, assault in the third degree, in
violation of HRS § 707-712(1)(a); and count 4,
criminal property damage in the fourth degree, in violation
of HRS § 708-823. The allegations in counts 1, 2, and 3
concerned an interaction between Kim and the complaining
witness on February 23, 2012. Count 4 involved an incident
alleged to have occurred on February 21, 2012.
trial took place in February 2014, nearly two years after the
occurrence of the incidents in this case.
Advisement at Beginning of Trial
first day of trial, the circuit court discussed the right to
testify with Kim. Kim indicated that he had not yet made up
his mind about whether he wanted to testify:
THE COURT: Mr. Kim -- our panel is not here -- you have a
constitutional right, Mr. Kim, to testify in your own defense
at the trial which we're about to begin.
Now, you should talk with your lawyer and anybody else you
want to talk with about this decision to testify, but this
must be your decision. And if you decide you want to testify,
nobody can stop you from testifying. If you decide to
testify, the prosecution will be given a chance to question
You also have a constitutional right not to testify but
rather to remain silent. Again, talk with whomever you wish
to talk with, of course including your lawyer, about this
decision, but this decision must be yours. And if you decide
you don't want to testify nobody, including your only
lawyer, can force you to testify.
If you decide to testify I will instruct the jury that it
cannot hold your silence against you when it decides your
case. Whatever your decision is by the end of trial I am
going to briefly question you and the only objective is to
make sure that you understand all of these rights and that
your decision, whatever it is, was your decision, okay, you
THE DEFENDANT: Kind of, yeah.
THE COURT: Well, do you have any questions?
THE DEFENDANT: No, not really. I haven't made my mind up
THE COURT: That's fine. And well if you have any
questions, now is the time to ask because it's very
important that you understand these two rights that nobody
can force you to do what you don't want to do. And that
if you decide to testify, the prosecution will be given a
chance to question you. And if you don't testify, you
decide you don't want to testify, I'm going to
instruct the jury that it cannot hold your silence against
you because that is your right, okay?
THE DEFENDANT: Yes.
THE COURT: So I want you to understand all of this. Do you
have any questions about anything?
THE DEFENDANT: Oh, I've got tons of questions.
[DEFENSE COUNSEL]: I'll address them, Your Honor.
THE COURT: Okay. Do you have any questions about what you and
I have just talked about?
THE DEFENDANT: No, Your Honor.
THE COURT: Okay. Do you understand what you and I have talked
THE DEFENDANT: Yes.
State's evidence consisted of testimony from three
investigating Honolulu Police Officers; testimony of the
complaining witness, Daniel Lewis; and photographs of
Lewis's home and his injuries after the incident. Lewis
testified at trial that he was friends with Kim and Kim's
former girlfriend, Jennifer Jimenez. At the time of the two
incidents, Jimenez was living with Lewis at his home because
Kim had broken up with Jimenez two weeks earlier. Lewis
testified that, late in the evening on February 21, 2012, the
tires of his vehicle had been cut "on [the] sidewalls so
they couldn't be repaired." From his bedroom window,
Lewis saw Kim bend down near his car tires and then walk
around to the other side of the car.
Lewis's testimony, however, was regarding the incident on
the morning of February 23, 2012. Lewis testified that Kim
came to his home and first attempted to force his entry
through the back door, which is a sliding glass door that was
partially open but secured by a wooden dowel. According to
Lewis, Kim stuck his arm through the door and made
"glancing blows" to his shoulder and head,
preventing him from closing the door. Lewis testified that he
then instructed Kim to go to the front door where he opened
the door to let Kim enter to stop Kim from damaging the
structure. Lewis had not told the police that he had allowed
Kim to enter through the front door.
testified that, when he opened the door to Kim, Kim attacked
him with a large stick, jabbing him in his midsection, and
knocking him off his feet. According to Lewis, he attempted
to prevent Kim from hitting him by holding on to the stick
and that Kim also punched and kicked him. Lewis explained
that Jimenez eventually physically broke them up by grabbing
hold of Kim and guiding him toward the driveway to leave.
Lewis testified that he and Kim were yelling obscenities at
each other, he then verbally challenged Kim, and Kim attacked
Lewis again. Jimenez again broke them up, and Jimenez and Kim
proceeded to leave.
acknowledged that he was under probationary supervision, and
he also referenced his intimate relationship with Jimenez and
indicated that, at the time of the incident, he wanted
Jimenez to be his girlfriend. Lewis stated that he attempted
to and desired to withdraw his complaint before the trial.
investigating officer testified that she attempted to contact
Jimenez, who was present when the incident occurred on
February 23, 2012. However, the officer did not make contact
with Jimenez and was unable to get a statement from her. The
officer who responded to Lewis's call to the police
testified that he believed he questioned Lewis's
neighbors. But, he was unable to locate a witness on the
cul-de-sac where Lewis's home is located who had seen or
heard screaming or banging on a side of a house.
Warning to Kim After Jury Selection
jury selection on the first day of trial, the circuit court
warned Kim to "use a poker face" and to not smile
and shake his head at certain questions:
THE COURT: Counsel and defendant are present, our jury has
left the courtroom.
Mr. Kim, you need to use a poker face. No clapping at the end
of the selection of the jury.
THE DEFENDANT: It's very emotional. I understand.
THE COURT: No smiling and shaking your head at certain
questions. I mean, you know, the jury is watching you. And
you may think that this is a positive thing for you. But you
don't know, they may be looking at it and thinking --
coming to negative conclusions and you don't want that,
okay. So I'm going to require that everybody use a poker
face, that's real important in these cases. And what
happens at counsel table is not evidence, all right?
Warning to Kim During Cross-Examination of Lewis
following day, during cross-examination of Lewis, defense
counsel sought to impeach Lewis with a prior inconsistent
statement regarding Kim's purpose in coming to
Lewis's home on February 23, 2012. Previously, Lewis told
an investigating officer that he felt threatened by Kim and
that Kim was attempting to enter the house to "get
at" Jimenez. Lewis testified at trial, however, that he
initially did not think that Kim would attack him and that
Kim did not mean to harm Jimenez but only to "retrieve
her." During this line of questioning, the court asked
both counsel to approach the bench; defense counsel was
instructed to tell Kim to "stop making faces":
THE COURT: You're going to have to tell your client to
stop making faces. He's doing things like that where
I'm going to - I'm going to say something in front of
[DEFENSE COUNSEL]: He's a very emotional man.
THE COURT: There's something wrong with him.
[DEFENSE COUNSEL]: He's upset.
THE COURT: No, people are upset, but they, you know, they
don't do this. You tell him I'm going to tell him as
soon as the jury leaves if he does that again I'm going
to say it in front of the jury.
counsel continued questioning Lewis regarding the incident
and asked Lewis whether he had mentioned earlier in his
testimony that Kim made a fist with the hand that he stuck
through the door; Lewis confirmed that was his testimony.
Defense counsel then proceeded to question Lewis regarding a
preexisting injury that caused the index fingers on Kim's
hands to be different in size. After the prosecution made an
objection, the court excused Lewis and the jury, and the
court immediately spoke to Kim regarding his behavior.
THE COURT: . . .
THE COURT: You can not [sic] be making faces in front of the
jury, shaking your head or something. That is inappropriate.
Defendants do not act that way, most of them know better and
I warned you yesterday.
THE DEFENDANT: Yes.
THE COURT: You're doing it again today. After I --some
part of the testimony by Mr. Lewis you said you put up your
fingers and tried to get your lawyer's attention.
THE DEFENDANT: Yes, ma'am, I did that.
THE COURT: I think what you may have been trying to imply is
that it's so wrong I need to ...