(Amended 05/21/13)

No. SCWC-29688 Thursday, July 11, 2013, 9 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee vs. HENRY POMROY, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner/Defendant-Appellant: 

Steven D. Strauss

Attorney for Respondent/Plaintiff-Appellee: 

Roland J. Talon, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 05/08/13.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Defendant/Appellant Henry Pomroy was convicted of assaulting his neighbor, in violation of Hawai`i Revised Statutes § 707-712(1)(a) (1993). On certiorari, he presents the following questions:

A. Whether the Intermediate Court of Appeals determined in error that the district court’s failure to advise petitioner prior to start of trial of his right to testify did not warrant reversal of the trial court’s judgment of conviction.

B. Whether the Intermediate Court of Appeals determined in error that the district court’s Tachibana colloquy was not defective and petitioner’s waiver of right to testify was valid.

C. Whether the Intermediate Court of Appeals should have rejected the trial court’s finding that the testimony of the complaining witness was credible.

Pomroy’s first question presented refers to State v. Lewis, 94 Hawai`i 292, 297, 12 P.3d 1233, 1238 (2000), which stated the following:

[T]rial courts ‘prior to the start of trial, shall (1) inform the defendant of his or her personal right to testify or not to testify and (2) alert the defendant that, if he or she has not testified by the end of trial, the court will briefly question him or her to ensure that the decision not to testify is the defendant’s own decision.

This court then noted, “Because we view this prior-to-trial advisement as incidental to the ‘ultimate colloquy,’ any claim of prejudice resulting from the failure of the trial court to give it must meet the same ‘actual[] prejudice[]’ standard applied to violations of the colloquy requirement.” Id. (citation omitted).

Pomroy’s second question presented refers to State v. Tachibana, 79 Hawai`i 226, 236 n.7, 900 P.2d 1293, 1303 n.7 (1995), which set forth the right-to-testify colloquy requirement. In that case, this court held, “[I]n order to protect the right to testify under the Hawai`i Constitution, trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify.” 79 Hawai`i at 236, 900 P.2d at 1303. (Footnotes omitted). This court stated that “the ideal time to conduct the colloquy is immediately prior to the close of the defendant’s case.” 79 Hawai`i at 237, 900 P.2d at 1304. This court further stated, “If a colloquy is . . . conducted [after the defense rests] and the defendant’s waiver of his or her right to testify appears in the record, such waiver will be deemed valid unless the defendant can prove otherwise by a preponderance of the evidence.” Id.

In a summary disposition order, the ICA rejected Pomroy’s first argument, holding that the absence of the prior-to-trial right-to-testify colloquy resulted in no actual prejudice to Pomroy. The ICA also rejected Pomroy’s second argument, holding that the ultimate right-to-testify colloquy he received from the trial court was valid, and that he had not proven that his waiver of the right to testify was invalid. Lastly, the ICA rejected Pomroy’s third argument, holding that it was within the trial court’s province to determine that the complaining witness’s testimony was credible.