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State v. Kim

Supreme Court of Hawaii

June 29, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
KEVIN PAUL KIM, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000833; CR. NO. 12-1-0363)

          Tae W. Kim for petitioner.

          NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., CONCURRING SEPARATELY

          OPINION

          POLLACK, J.

         This 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.

         I. BACKGROUND

         A. General Overview

         On 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);[1] count 2, terroristic threatening in the second degree, in violation of HRS § 707-717;[2] count 3, assault in the third degree, in violation of HRS § 707-712(1)(a);[3] and count 4, criminal property damage in the fourth degree, in violation of HRS § 708-823.[4] 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.

         A jury trial took place in February 2014, nearly two years after the occurrence of the incidents in this case.[5]

         B. Advisement at Beginning of Trial

         On the 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.
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 understand?
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 yet.
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 about?
THE DEFENDANT: Yes.

         The 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.

         Most of 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.

         Lewis 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.

         Lewis 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.

         An 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.

         C. Warning to Kim After Jury Selection

         Following 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?

         D. Warning to Kim During Cross-Examination of Lewis

         The 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 the jury.
[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.

         Defense 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: . . .
Mr. Kim.
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 ...

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