398 P.3d 794
Haw.2017Background
- Defendant Frank Loher was tried for attempted first-degree sexual assault; the State rested early on day one of evidence and trial had been expected to last several days.
- Defense witnesses (his wife and stepson) were unavailable that afternoon; defense counsel requested a continuance so Loher could testify after them.
- The circuit court denied the continuance and ordered Loher to either testify immediately or waive his right to testify; Loher testified before his other defense witnesses.
- Loher was convicted and sentenced; post-conviction and federal habeas proceedings followed, leading to reinstatement of his direct appeal to raise the forced‑testimony claim.
- The Hawai‘i Supreme Court held the trial court’s order violated Loher’s rights against self‑incrimination, right to counsel, and due process, and ruled the error was structural (not subject to harmless‑error review), vacating the conviction and remanding for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court violated constitutional rights by forcing Loher to testify before his other defense witnesses or not at all | State: court’s control of order of proof under HRE 611 was reasonable; no Brooks violation because exceptions apply and counsel could have prepared witnesses | Loher: Brooks prohibits any court directive that forces a defendant to testify before other defense witnesses; it deprived him of the right not to testify, counsel’s guidance, and due process | Court: ordering defendant to testify first or forfeit right violated privilege against self‑incrimination, right to counsel, and due process (Brooks applies) |
| Whether exceptions (e.g., decision had "congealed," exigency, partial ordering) excuse the error | State: prior Hawai‘i appellate decisions recognized such exceptions; facts fit exceptions | Loher: exceptions undermine Brooks and Tachibana protections; preliminary decisions and counsel errors shouldn’t waive rights | Court: declines to adopt those exceptions; they conflict with Brooks and Hawai‘i precedent (Grindles, Tachibana) |
| Whether the constitutional violation is subject to harmless‑error review | State: even if error, it was harmless beyond a reasonable doubt or subject to harmless‑error analysis | Loher: error is structural and automatic reversal is required | Court: error is structural under Hawai‘i Constitution because it impinges multiple fundamental rights and its effect is impossible to reliably assess; harmless‑error does not apply |
| Remedy and effect on prior appellate counsel claims | State: prior appellate and post‑conviction rulings argued differing standards; some federal courts applied deference | Loher: appellate counsel’s failure to raise Brooks was ineffective in prior proceedings | Court: vacates conviction and remands for new trial; overrules ICA decisions to the extent they applied harmless‑error to Brooks‑type violations |
Key Cases Cited
- Brooks v. Tennessee, 406 U.S. 605 (U.S. 1972) (statute requiring defendant to testify before other defense witnesses violates privilege against self‑incrimination and due process)
- Grindles v. State, 70 Haw. 528 (Haw. 1989) (trial procedures forcing defendant to decide before State presented entire case violated due process and Fifth Amendment rights)
- State v. Kido, 102 Hawai‘i 369 (Haw. Ct. App. 2003) (ICA opinion analyzing Brooks and identifying factual categories where courts sometimes declined to find Brooks error)
- Tachibana v. State, 79 Hawai‘i 226 (Haw. 1995) (trial courts must conduct on‑the‑record colloquy about defendant’s right to testify; ideal timing is just before close of defendant’s case)
- United States v. Cronic, 466 U.S. 648 (U.S. 1984) (certain denials or interferences with counsel are presumed prejudicial and may obviate showing of specific prejudice)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel; recognizes presumption of prejudice in some circumstances)