FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (ICA CASE NO.
24489; CR. NO. 99-1621)
C. Wolff, Jr., and Craig W. Jerome for appellant
R. Vincent for appellee
NAKAYAMA, ACTING C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
CIRCUIT COURT JUDGE NACINO, IN PLACE OF RECKTENWALD, C.J.,
case arises from the nearly seventeen-year old conviction of
Frank 0. Loher for attempted sexual assault in the first
degree. At trial, Loher sought to present an alibi defense
based in large part on the testimony of his wife and his
wife's son. Although the trial was anticipated to last
between five and six days, the State rested its case-in-chief
in the early afternoon on the first day of the evidentiary
portion of the trial. When the circuit court informed defense
counsel that the defense's witnesses would be required to
testify that day, counsel sought a continuance to secure the
witnesses' presence so that they could testify first. The
circuit court denied the requested continuance, and, over
defense counsel's objection, the court ordered Loher to
either take the stand at that time or forfeit his right to
testify entirely. As a result, Loher took the stand and
testified before the other witnesses in the defense's
his conviction and his unsuccessful appeal, Loher sought
relief in state and federal post-conviction proceedings. As a
result of the post-conviction proceedings, the Intermediate
Court of Appeals' June 19, 2003 judgment on direct appeal
was vacated so that Loher could raise a claim that his
constitutional rights were violated when the circuit court
ordered him to testify first or not at all. Loher's case
requires this court to consider whether the circuit court
erred based on principles set forth in the United States
Supreme Court's decision in Brooks v. Tennessee,
406 U.S. 605 (1972), the Hawai'i Constitution, and
Hawai'i caselaw, and, if the court erred, whether the
error is subject to harmless error review.
FACTS AND PROCEDURAL HISTORY
Circuit Court Trial
August 19, 1999, Loher was indicted by a grand jury for
attempted sexual assault in the first degree, in violation of
HRS § 705-500 (1993) and HRS § 707-730(1)(a) (1993)
(count one), and attempted kidnapping, in violation of HRS
§ 707-720(1)(d) (1993) (count two). Loher v.
State, 118 Hawai'i 522, 524, 193 P.3d 438, 440 (App.
2008), overruled on other grounds by State v. Auld,
136 Hawai'i 244, 361 P.3d 471 (2015) . The State filed a
"Memorandum of Pretrial" on December 9, 1999,
stating that the trial was expected to take five to six days.
Id. On November 13, 2000, the State filed its
"Witness and Exhibit List" identifying fourteen
witnesses for the State. Id.
and the State each filed motions in limine relating to the
evidence to be presented at trial. Id. During the
hearing on the parties' motions, Loher stated that he
intended to present an alibi defense and establish that he
was not present during the attempted sexual assault and
kidnapping. Id. Loher's counsel represented to
the court that Loher would testify at trial, but at various
times he also expressed the possibility that Loher would
choose not to take the stand. Loher v. State, No.
29818, 2011 WL 2132828, at *1 (App. May 31, 2011) (mem.).
evidentiary portion of the jury trial commenced at 9:30 a.m.
on Tuesday, November 14, 2000. The State first called Honolulu
Police Department (HPD) Officer Oryn Baum. Officer Baum
testified that on July 29, 1999, at approximately 3:43 a.m.,
she was dispatched to an industrial area at 2722 Kakoi
Street. Once she arrived, she was flagged down by a female
identified by Officer Baum as the complaining witness.
Officer Baum stated that the complaining witness's halter
top was ripped, and the officer observed a "kind of a
scratch" on her back. The complaining witness described
her assailant, the vehicle he was driving, and the
vehicle's license plate number. The vehicle was
subsequently identified by Officer Baum as belonging to Frank
and Andrea Loher. Following Officer Baum's testimony, the
State called an HPD fingerprint identification technician who
testified that five sets of fingerprints were recovered from
Loher's car but that none were a match to the complaining
State then called the complaining witness, complainant
testified that in the early morning hours of July 29, 1999,
she was walking along Kapi'olani Boulevard when she
accepted an offer of a ride to the airport from an individual
with whom she was not acquainted who was driving a red car.
The witness made an in-court identification of Loher as the
complaining witness related that after the driver got on the
freeway, she fell asleep. When she woke up, the car was
parked. The driver then demanded oral sex. As she tried to
exit the vehicle, the complaining witness described that the
driver ripped her shirt and scratched her back in an attempt
to keep her inside of the car. She then ran out of the car to
a nearby pay phone, which she used to call police. The
complainant identified pictures presented by the State of the
alleged crime scene and Loher's vehicle.
the lunch recess, the defense began its cross-examination of
the complaining witness. The complainant confirmed that
earlier in the evening and prior to the incident, she fought
with her boyfriend because he got into a car with three other
girls, and she did not want to see him with the other girls.
The complaining witness clarified that she was walking
because she wanted to go to the airport; she believed that if
she could get to the airport, she could obtain free airline
tickets from her boyfriend's uncle who worked for an
airline. Following this testimony, at 1:39 p.m., HPD
Detective Earl Takahashi was called by the State and
testified that the complaining witness identified Loher as
the driver in a photographic lineup.
the conclusion of Detective Takahashi's testimony, the
State rested its case at approximately 2:15 p.m. The court
recessed, and at 2:27 p.m., the court reconvened outside the
presence of the jury. Loher's counsel requested a
continuance until the next trial day on Thursday morning
because he "had no idea that [the State] would finish
[its case] this early, " given that the State had
"quite a number of people on the witness list."
Counsel stated that he told the defense witnesses to prepare
to testify on Thursday; he related that he tried to
"make a couple calls" to secure the presence of
defense witnesses that day, but they were not available.
Defense counsel apologized but stated that "it's too
quick for us to have to present witnesses under the
circuit court denied the continuance request, citing Hawaii
Rules of Evidence (HRE) Rule 611 (1993) and noting that there
was more than enough time left in the day to proceed with
trial. The court stated that it would "allow
the defense to call Mr. Loher to testify" at that time.
Defense counsel objected, noting that Loher had a right not
to testify and that depending on the testimony of the other
witnesses, Loher may choose not to take the stand. Counsel
further argued that the court was essentially forcing Loher
[Defense counsel]: . . . the Court is actually forcing
[Loher] to take the stand because now we have nobody to call,
and you're saying, Well, we can call Mr. Loher, but as a
strategic manner in planning for our case, he was going to be
the last witness I call, and depending how it went with the
other witnesses, we may not need to call him because we can
get everything that we need through the other witnesses.
So, in fact, now that we're being forced to call him as
first witness in a sense is prejudicial to Mr. Loher because
he's being forced to testify when he, in essence, we had
not decided fully whether or not he would testify for sure.
court stated that it found defense counsel's argument
unpersuasive because it was counsel's responsibility to
prepare for trial.
The Court: The Court does not find the argument persuasive.
The Court believes that it was the responsibility or is the
responsibility of counsel to determine when witnesses would
Defense counsel was free to discuss with the State the
witnesses called and when they would anticipate finishing
Defense counsel has hopefully prepared for this case, so
should be aware at the present time what the witnesses that
he intends to call will testify. And having prepared and
having a knowledge as to what they will say, since they are
the defense witnesses, then they should be in the position to
know whether the defendant should testify.
court also stated that defense counsel had represented that
Loher would testify concerning his alibi defense and
suggested that defense counsel's objection to Loher
testifying that day was manipulative.
The Court: ... So the Court believes it is not persuasive
that defense counsel should now argue to this Court, after
the Court had denied his request to delay the trial till
Thursday by saying that he does not know what his own
witnesses will say and depending what they say, he will then
make the decision whether his client's going to testify.
The Court would also note that during the pretrial
conferences, as well as in the opening statement, the
defendant has asserted an alibi that he was not present at
the time, and that where the -- his location would be during
certain times defense counsel has also represented to the
Court that his client is going to testify.
The Court is not persuaded by his argument and is concerned
that this may be manipulative in order to obtain the relief
that the Court had not granted.
defense counsel requested permission to respond to the
court's concerns, the court refused, stating that it was
unpersuaded by counsel's argument and directing counsel
to call Loher to testify or waive his testimony.
[Defense counsel]: Well, if I can respond.
The Court: Excuse me, and the Court is unpersuaded by your
argument. So we're going to proceed. You may call your
client to testify, or if you wish, not to testify or engage
in Tachibana at this time, and he may waive his testimony.
That is between you and your client.
So I'm going to take a recess, and before we do that, is
your client going to testify or is he going to waive his
right to testify?
response to the court's question whether Loher would
testify or waive his right to testify, defense counsel
responded, "I'd like to discuss that matter with
him." The court then recessed so that defense counsel
could discuss with Loher whether he would testify.
court reconvened at 2:43 p.m., and the defense called Loher
to testify. Loher stated that he was working on the night in
question. When his shift ended at approximately 1:00 a.m. on
the morning of July 29, he visited his wife, Andrea, at the
hospital where she worked. Loher left the hospital, went to
his place of residence, and spoke with his wife on the phone,
and he then slept from approximately 3:30 a.m. until 4:00
a.m. Loher testified that he left his residence at around
4:30 a.m. to pick up Andrea's son, Moses, visit with
Andrea at the hospital, and drive Moses to work. Loher also
testified that he had previously served in the United States
cross-examination, the State elicited testimony that Loher
had been dishonorably discharged from the United States Army.
Loher acknowledged that in a prior statement to Detective
Takahashi, he did not say anything about speaking with his
wife on the phone after leaving the hospital. Additionally,
Loher confirmed that he told Detective Takahashi that he left
his residence to pick up Moses at 5:30 a.m., rather than at
4:30 a.m. as he had testified on direct examination. Loher
also agreed that he told Detective Takahashi that no one else
had access to his car the night that the incident occurred.
After Loher finished testifying, the court recessed for the
trial resumed on Thursday, November 16, 2000, the defense
called Moses and Andrea to the stand. Andrea testified that
Loher arrived at the hospital to visit with her shortly
before 2:00 a.m. and that he left at around 2:35 a.m. Andrea
stated that after Loher left the hospital and returned to his
residence, she spoke with him on the phone twice, with the
second call occurring at approximately 3:15 a.m. and lasting
for fifteen to twenty minutes. Andrea called Loher again at
around 4:00 a.m. to wake him up so that he could take Moses
to work. On cross-examination, Andrea admitted that some of
her statements at trial were inconsistent with her prior
statements to Detective Takahashi, and she further
acknowledged that she had not told the detective that she
called Loher at 4:00 a.m. to wake him up.
testified that Loher arrived to pick him up at about 4:45
a.m. on the morning of July 29. Moses stated that Loher drove
him to visit with Andrea at the hospital and then to work,
where they arrived at about 6:00 a.m.
State then called three rebuttal witnesses who testified
regarding Loher's place of residence and appearance on
the day of the incident and Andrea's prior statements to
HPD. In closing arguments given that same day, both the State
and the defense described the case as resting largely on
jury found Loher guilty of count one, attempted sexual
assault in the first degree. On July 18, 2001, Loher was
sentenced to an extended term of life imprisonment with the
possibility of parole, subject to a repeat-offender mandatory
minimum of thirteen years and four months. The court ordered
Loher to serve his term of life imprisonment consecutively to
sentences he was currently serving in unrelated
Direct Appeal (No. 24489)
to sentencing, trial counsel withdrew as Loher's counsel,
and appellate counsel was appointed to represent
Loher.On appeal, Loher challenged the jury
instructions, the sufficiency of the evidence, and his
sentence; he also raised a claim of ineffective assistance of
trial counsel. Appellate counsel did not raise the issue of
Loher being forced to testify before the other defense
witnesses. The ICA rejected Loher's claims and affirmed
his conviction and sentence. See State v. Loher
(Loher I), No. 24489, 2003 WL 1950475 (App. Apr. 21,
2003) (mem.). Loher unsuccessfully sought certiorari review.
Loher engaged in post-conviction litigation in both state and
federal court on the following three claims: (1) the circuit
court violated his constitutional rights by forcing him to
testify before any of his witnesses or not at all, in
violation of Brooks v. Tennessee, 406 U.S. 605
(1972); (2) appellate counsel rendered ineffective assistance
of counsel by failing to raise the Brooks forced
testimony issue on direct appeal; and (3) the enhancement of
his sentence based on facts found by the circuit court judge
violated Apprendi v. New Jersey, 530 U.S. 466
State Post-Conviction Proceedings
State v. Loher (Loher II), No. 26000, 2005
WL 335234 (App. Feb. 11, 2005) (mem.), the ICA rejected
Loher's Apprendi claim and affirmed the circuit
court's denial of Loher's motion for correction of
sentence under Hawai'i Rules of Penal Procedure (HRPP)
Rule 35 (1993).
Loher v. State (Loher III), 118 Hawai'i
522, 539, 193 P.3d 438, 455 (App. 2008), overruled on
other grounds by State v. Auld, 136 Hawai'i 244, 361
P.3d 471 (2015), the ICA affirmed in part and vacated in part
the circuit court's denial of an HRPP Rule 40 petition
submitted by Loher. Specifically, the ICA noted that
Loher's HRPP Rule 40 petition could be construed to raise
a claim that appellate counsel was ineffective for failing to
raise the Brooks forced testimony issue on direct
appeal. 118 Hawai'i at 532, 193 P.3d at 448. The ICA
concluded that the circuit court erred in denying the HRPP
Rule 40 petition without holding a hearing on the ineffective
assistance of counsel issue, and it therefore remanded the
case to the circuit court for an HRPP Rule 40 hearing.
Id. at 539, 193 P.3d at 455.
Loher v. State (Loher IV), No. 29818, 2011
WL 2132828 (App. May 31, 2011) (mem.), the ICA reviewed the
circuit court's denial of Loher's HRPP Rule 40
petition following the hearing conducted on remand pursuant
to Loher III. The ICA recounted various parts of the
testimony that were presented at the hearing on
remand. The ICA determined that the circuit court
denied Loner's HRPP Rule 40 petition because Loher had
already decided to testify prior to trial and because trial
counsel was at fault for not having defense witnesses ready
to testify after the State rested its case. Id. at
*4-5. The ICA concluded that its opinion in State v.
Kido, 102 Hawai'i 369, 76 P.3d 612 (App. 2003), had
created several exceptions to the rule set forth in the U.S.
Supreme Court's decision in Brooks v. Tennessee,
406 U.S. 605 (1972), and that at least two of these
exceptions applied in Loher's case. Loher IV,
2011 WL 2132828, at *6-9. The ICA therefore ruled that the
circuit court correctly concluded ...