DocketNumber: 5171
Citation Numbers: 501 P.2d 977, 54 Haw. 28
Judges: Richardson, C.J., and Marumoto, Abe, Levinson and Kobayashi
Filed Date: 10/3/1972
Status: Precedential
Modified Date: 8/7/2023
Richard Kahalewai was indicted on September 23, 1970, for having sexual intercourse with a female under the age of sixteen in violation of HRS § 768-62. At the arraignment proceeding on October 2, 1970, at which Mr. Kahalewai was present, counsel for the defendant informed the trial court that the defendant wished to waive his right to trial by jury.
This appeal raises two issues: (1) whether a demand in open court for a jury-waived trial by an accused’s
The first question was answered in the affirmative by the court’s decision in State v. Olivera, 53 Haw. 551, 497 P.2d 1360 (1972).
As to the second issue, we do not believe the appellant was denied effective assistance of counsel.
The constitutional right to the assistance of counsel in a criminal case, Hawaii Const., Article I, Sec. II,
Although determining whether the demands of due process have been met in this case involves measuring counsel’s assistance against “the fundamental ideas of fairness and right,” Betts v. Brady, 316 U.S. 455, 473 (1942) and is always a question of judgment and degree, Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir. 1962), general standards have evolved which this court will apply to aid it in making this determination. A primary requirement is that counsel must “conduct careful factual and legal investigations and inquiries with a view to developing matters of defense in order that he may make informed decisions on his client’s behalf,” In re Saunders,
With the above standards in mind we proceed to consider defendant’s allegations.
The thrust of appellant’s argument is that his trial counsel’s advice to waive jury trial was based on uninformed judgment, because trial counsel advised appellant to opt for a bench trial on the ground that appellant’s conviction for burglary in 1957 would serve as a handicap in a jury trial. This advice was given in ignorance of the rule articulated by this court in Asato v. Furtado, 52 Haw. 284, 293, 474 P.2d 288, 295 (1970) (filed on September 8, 1970, twenty-four days prior to appellant’s arraignment) :
The rule we adopt is that a prior conviction may come in if, but only if, the trial judge, in his discretion, feels that the party offering the evidence has satisfactorily shown that the conviction to be proved rationally carries probative value on the issue of the truth and veracity of the witness.
Although admitting that whether Asato would have barred the case of defendant’s burglary conviction for impeachment was “arguable”, appellant contends that the Asato rule “should make a pretrial motion to suppress a thirteen-year-old conviction mandatory before advising a jury waiver on the grounds the conviction could be used for impeachment.” As trial counsel not only did not make the motion but had not even read Asato, “the conclusion,” appellant argues, “is unavoidable . . . [that trial counsel’s advice] was not within the range of competence demanded of attorneys in criminal cases.”
In the instant case, appellant’s allegation could only succeed if it were established that advising a jury trial waiver, in view of the record as a whole, was unreasonable. This has not been established. Appellant’s prior criminal record was only one of several factors to be considered in reaching the determination to advise a non-jury trial. That a jury may be unfavorably disposed toward a criminal defendant considerably past the age of majority and charged with having sexual intercourse with a female under the age of sixteen, like the appellant in the present case, is frequently a salient consideration. And a maneuver designed to avoid this highly probable adverse reaction, cannot be deemed unreasonable.
For the reasons stated above, the judgment of denial of the appellant’s motion that the judgment of conviction be set aside and for a new trial is affirmed.
The record of the arraignment proceeding on October 2, 1970, contains the following:
THE CLERK: Criminal No. 41252, State of Hawaii versus Richard Kahalewai, also known as Richard Gabriel.
MR. KITAOKA: May the record show that I am representing the defendant and that he is present. This is a matter for arraignment and plea.
(Discussion followed.)
MR. KITAOKA: I acknowledge receipt of the Indictment and consent to its entry in the words and figures thereof. We are ready to plead, your Honor.
THE COURT: What is your plea, Richard Kahalewai?
THE DEFENDANT: Not guilty.
THE COURT: Jury trial, of course.
MR. KITAOKA: May we have an early trial, early date? This shouldn’t take long. Waive jury, your Honor.
Article I, Section 11 of the State Constitution was modeled after the 6th Amendment and was intended to incorporate it and to give the State the benefit of federal decisions construing the same language. State v. Wong, 47 Haw. 361, 385, 389 P.2d 439, 452 (1964).
See, e.g., People v. Guerin, 22 Cal. App. 3d 775, 784, 99 Cal. Rptr. 573, 579 (1972) where appellant’s trial counsel, a practitioner for 22 years, alleged in the face of a faultless trial record that his own trial performance had been so incompetent that he had reduced the trial to a farce or sham.