State v. Jones

LAWH?@YARY

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No. 29301 fN
,1 §§
IN THE INTERMEDIATE coURT oF APPEALs ’ 4 m §§
oF THE sTATE 0F HAwAF1 “T
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sTATE 0F HAwAfI, P1aintiff-Appe11ee, §§
v. §§
LLOYD JONES, Defendant-Appellant §§
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APPEAL FRoM THE cIRcUIT coURT 0F THE FIFTH cIRcUIT
(cR. N0. 07-1-0034)

MEMORANDUM OPINION'

(By: Nakamura, Chief Judge, Fujise,

and Ginoza, JJ.)

Defendant-Appellant Lloyd Jones (Jones) appeals from
the Judgment of Conviction and Probation Sentence (Judgment)

filed on July 10, 2008, in the Circuit Court of the Fifth Circuit

(circuit court).V Plaintiff-Appellee State of HawaiH.(State)

charged Jones by complaint with one count of second degree
assault,

in violation of Hawaii Revised Statutes (HRS) § 702-
711(1)(d) (supp. 2009).Y

A jury found Jones guilty as charged.
The circuit court sentenced Jones to five years of probation and

ninety days of jail confinement, and it ordered him to pay
restitution in the amount of $2,379.00.

On appeal, Jones argues that the circuit court erred by

proceeding with the trial, even though Jones's trial counsel
(defense counsel) stated that defense counsel was not prepared,
because Jones himself stated that Jones did not want a

l/

The Honorable Randal G.B. Valencian0 presided.
2/

HRS Section 707-71l(1)(d) pr0vides:

§ 707-711 Assau1t in the second degree. (1) A person
commits the offense of assault in the second degree if:

(d) The person intentionally or knowingly causes bodily

injury to another person with a dangerous
instrument[.]

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continuance. Jones further argues that defense counsel was
ineffective for failing to move for a continuance.

Jones also asserts that defense counsel provided _
ineffective assistance by: (l) failing to enforce Jones's rights
under the speedy trial requirements of Hawaii Rules of Penal
Procedure (HRPP) Rule 48 (2000); (2) failing to call witnesses at
trial who Jones claims could have exculpated him; (3) calling a
witness, Jones's wife, that was allegedly detrimental to Jones's
defense; and (4) persuading Jones not to testify. Finally, Jones
argues that the circuit court erred by: (l) failing on its own
initiative to instruct the jury on the lesser included offense of
third degree assault; and (2) failing to give Jones's proposed
jury instruction on self-defense.

We affirm Jones's conviction.

I. BA£HG3R£HHHD
A.

Jones was charged with using a dangerous instrument,
namely, an "axe and/or pipe," to knowingly cause bodily injury to
the complaining witness, John Evans (Evans). The charge stemmed
from a February 17, 2007, altercation between Jones and Evans
that took place in the Kapda area on KauaHd The State contended
that Jones aggressively attacked Evans because Evans urinated
near Jones's van, and during this altercation, Jones hit Evans
with a small ax (hatchet) or a pipe.

B.

On April 14, 2008, the parties appeared before the
circuit court for jury trial. Defense counsel stated that he was
not ready to proceed to trial, but that his client wanted to
proceed to trial.W Defense counsel stated the following reasons

for his unpreparedness: (l) defense counsel had received from the

y The apparent reason that Jones wanted to proceed to trial was that
he could not afford to take further time off from work and was under threat
from his supervisor that he would be fired if he did not "clear this matter
up[.]" Defense counsel stated, "because of [Jones's] job situation, [Jones]
feels compelled to go to trial despite the fact that I have told [J0nes]
repeatedly that I do not feel ready to proceed."

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State that morning thirty-five pages of transcribed interview
statements of Jones, Evans, and a witness, Ray Balai (Balai),
and needed time to "digest the statements and incorporate them
into [his] case"; (2) an emergency room physician who treated
both Evans and Jones for injuries after the altercation was
unable to testify because he was on vacation; (3) defense counsel
was unable to serve subpoenas on pertinent defense witnesses
including Jones's wife and his step-son; (4) defense counsel
wanted more time to consider issuing a subpoena for another
doctor if the original emergency room physician was unavailable;
and (5) defense counsel had not received pertinent medical
records.F Defense counsel told the circuit court that he would
normally move to continue or dismiss the matter, but "because of
my client's job circumstance, . . . [Jones] feels compelled to
proceed today. And despite the fact that I have repeatedly
advised [Jones] that 1 am not ready because of the late
discovery, [Jones] wants to go to trial today."
The following exchange then occurred:

[Court]: [T]he problem in this case is that your
client doesn't want you to make a motion to continue, and I
think that's your concern. Is that correct?

[Defense counsel]: That's correct, your Honor.

[Court]: In spite of the fact that your client
doesn't want you to make the motion to continue, would you
still be willing to represent Mr. Jones in this case?

[Defense counsel]: Yes, your Honor.

[Court]: Mr. Jones, your attorney, [defense counsel],
has given the Court a number of reasons for the making of a
motion to continue. And the Court, taking those reasons
into account, would consider, favorably consider, granting
the oral motion made by [defense counsel], if it was made.

y The prosecutor represented that he had inherited the case from a
number of different deputies and that Jones also had been represented by prior
counsel. The prosecutor stated that his files indicated that discovery had
previously been provided to Jones, but was not sure of the content of what was
previously disclosed. The prosecutor did not dispute that Jones's current
defense counsel had just received the transcribed interview statements that
morning. Defense counsel noted that the date of transcription for the
interview statements was in May and June of 2007, whereas the prosecutor
stated his files indicated that the prior discovery had been provided in
February 2007.

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But because you are the client and you get to make
decisions, to an extent, regarding how your case is managed
and/or presented, it is the Court's understanding that you
don't want your case continued in spite of all these reasons
given by [defense counsel]; is that correct?

[Jones]: That's correct.

[Court]: And [defense counsel] did raise some
employment issues that you may have regarding this
proceeding. So it is the Court's understanding that
[defense counsel] has discussed additional discovery that he
just received regarding statements made by you, Mr. Balai
and Mr. Evans that are in written form and for him to review
that; that the emergency room doctor, Dr. Pakroy is not
available, apparently he is off island, either on vacation
or just not available; that he hasn't been able to serve the
subpoena on [Jones's wife] and/or your child; and that Dr.
Evan Lee may or may not be available to testify in your
trial and he doesn't have medical records.

So, in spite of all of that, do you want your case
continued with the Court giving you a date later on to allow
[defense counsel] to address these five issues? Or do you
want your trial to proceed today?

[Jones]: I want my trial to proceed today.

[Court]: Okay. And do you understand [defense
counsel] wants to make that motion to continue, but because
he is not authorized, that he's not going to make that
motion; and in spite of not making that motion, even though
[defense counsel] believes that the motion should be made,
he is still willing to be your attorney in this case? Do
you understand that?

[Jones]: Yes.

[Court]: Do you have any objections with [defense
counsel] continuing to be your attorney in spite of the fact
that he has told the Court that he believes a motion to

continue should be made on your behalf, but he is not going
to do that because you are not authorizing it?

[Jones]: Right.

During a break in jury %election, an additional
exchange occurred outside the hearing of the jury, in which the
circuit court reiterated to Jones the circumstances surrounding
Jones's request to proceed with the trial that day. Jones again
confirmed that he wanted to proceed with the trial as scheduled.

C.

At trial, Evans testified that on February l8, 2007, he
went with about a dozen of his family and friends to a canal by
the Kapa‘a library to go crabbing. Jones, along with his step-

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son and wife, happened to also be in the same area with his van.
Evans testified that he twice went to a corner of the canal area
to urinate. Jones's step-son and wife testified that Evans
urinated on or in the vicinity of Jones's van, which Evans
denied.

Evans testified that Jones told Evans that Evans was
"in his territory," to which Evans responded "Brah, you got a
problem?" while walking away. Evans asserted that Jones then
rushed Evans from behind, slammed Evans against a fence, and
tried to gouge out Evans's eyes. During this struggle, Evans was
struck in the back of his head and on his face with an object,
but he did not know what the object was. Evans sustained a cut
to his head, which required four staples to close, and cuts above
his left eyebrow, to his right eyelid, and to his right cheek,
which required stitches.

The State called two friends of Evans who were present
at the scene of the altercation. One witness, Balai, testified
that he initially saw Jones's wife, Tracey Jones (Tracey),
swinging a hatchet in the area of the altercation between Jones
and Evans. Balai then went to his truck and grabbed a broken
shovel handle. Upon returning, he saw Jones with the hatchet and
saw Jones hit Evans with the hatchet twice. Balai used the
shovel handle to block Jones from hitting Evans a third time with
the hatchet, and then Balai grabbed the hatchet. The other
witness, Lawyer Dabney (Dabney), testified that he also saw
Tracey swinging a hatchet. Dabney ran back to his vehicle to
find something to stop Tracey from hitting Jones with the
hatchet, and returned with a tree branch. When he returned,
Balai was already holding the hatchet, and Dabney saw Jones
holding a piece of metal rebar. A police officer who arrived at
the scene testified that upon his arrival, he witnessed Jones
holding a metal stake or rebar, and Balai holding a shovel
handle.

Jones's step-son, Calvin Bosworth (Bosworth), testified

that Evans was the first aggressor and that Balai was the one who

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was wielding the hatchet during the altercation, not Jones.
Bosworth also testified that he did not think the hatchet
belonged to him, Tracey, or Jones. Tracey testified that Evans
threatened to kill her several times, that she saw Balai hit
Jones with a "club," and that she saw Evans hit Jones in the head
with a liquor bottle. Tracey also testified that she did not
hold the hatchet or "ax" until she saw it laying in the parking
lot as she was looking for her phone. She assumed it was hers
because her family used an ax to cut wood, and she put it back
into her van. At the scene, Tracey told a police officer that
"[t]he ax belongs to us. It is our ax[.]" Jones did not testify
in his own defense.
II. STANDARDS OF REVIEW
A. Plain Error
The appellate court "will apply the plain error
standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial
proceedings, to serve the ends of justice, and to prevent the
denial of fundamental rights." State v. Sawyer, 88 HawaiH.325,
330, 966 P.2d 637, 642 (l998). An appellate court's "power to
deal with plain error is one to be exercised sparingly and with
caution because the plain error rule represents a departure from
a presupposition of the adversary system -- that a party must
look to his or her counsel for protection and bear the cost of
counsel's mistakes." State v. Randles, 112 Hawaid.192, l94, 145
P.3d 735, 737 (App. 2006) (quoting State vi Kelekolio, 74 Haw.
479, 5l5, 849 P.2d 58, 74-75 (l993)).
B. Ineffective Assistance of Counsel

When an ineffective assistance of counsel claim is
raised, the question is: "When viewed as a whole, was the
assistance provided to the defendant 'within the range of
competence demanded of attorneys in criminal cases?'"
Additionally, the defendant has the burden of establishing
ineffective assistance of counsel and must meet the
following two-part test: 1) that there were specific errors
or omissions reflecting counsel's lack of skill, judgment,
or diligence; and 2) that such errors or omissions resulted
in either the withdrawal or substantial impairment of a
potentially meritorious defense.

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State v. JantO, 92 HawaFi 19, 31, 986 P.2d 306, 318 (l999)
(citation omitted and internal block quote format changed).

C. Jurv Instructions

When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading.

Erroneous instructions are presumptively harmful and
are a ground for reversal unless it affirmatively appears
from the record as a whole that the error was not
prejudicial.

Error is not to be viewed in isolation and considered
purely in the abstract. It must be examined in the light of
the entire proceedings and given the effect which the whole
record shows it to be entitled. In that context, the real
question becomes whether there is a reasonable possibility
that error may have contributed to conviction.

If there is such a reasonable possibility in a
criminal case, then the error is not harmless beyond a
reasonable doubt, and the judgment of conviction on which it
may have been based must be set aside.

State v. Gonsalves, 108 HawaiU.289, 292-93, 119 P.3d 597, 600-01
(2005) (internal quotation marks, citations, and brackets

omitted; internal block quote format changed).

III. DISCUSSION
A.

After Jones was advised of defense counsel's desire for
a continuance and the supporting reasons, Jones told the circuit
court that "I want my trial to proceed today." Nevertheless, on
appeal, Jones now contends that his conviction must be overturned
because the circuit court honored his request to proceed to
trial. Jones further argues that defense counsel provided
ineffective assistance by failing to contravene Jones's wishes
and request a continuance. We conclude that these arguments lack
merit.

l.

In conformance with Jones's wishes, defense counsel did

not move to continue the trial. Accordingly, there was no

continuance motion for the circuit court to rule upon. Jones's

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argument that the circuit court erred boils down to a~claim that
the circuit court committed plain error in failing to sua sponte
order a continuance.

It is difficult for a trial judge to know the extent to
which an attorney is competent and prepared to proceed to trial.
Therefore, the trial judge must rely on counsel to move for a
continuance if circumstances arise which preclude counsel from
competently representing his or her client. There may be
extraordinary circumstances in which a court's failure to order a
trial continuance sua sponte may rise to the level of plain
error. However, Jones has not shown, based on the record in this
case, that the circuit court committed plain error.

In support of his argument, Jones cites case law which
states that a defendant has the exclusive right to decide whether
to plead guilty, waive a jury, or testify in his or her own
behalf, See, e.q., Wainwriqht v. SVkes, 433 U.S. 72, 93 n.1
(1977) (Burger, J., concurring) ("Only such basic decisions as
whether to plead guilty, waive a jury, or testify in one's own
behalf are ultimately for the accused to make."); United States
V. MOOdy, 977 F.2d l425, 1430 (llth Cir. 1992). However, a
defendant's exclusive province to decide these three issues does
not mean that a defendant's wishes in other areas are not
significant or should not be considered by counsel or the trial
court.

In State v. Richie, 88 HawaiH.19, 960 P.2d 1227
(1998), the Hawafi Supreme Court cited to the American Bar
Association (ABA) Defense Function Standards in the context of
addressing a defendant's ineffective assistance of counsel claim:

The ABA Defense Function Standards provide useful guidance
in determining which decisions must be made by the defendant
and which decisions are the province of counsel:

Standard 4-5.2 Contro1 and Direction of the Case.

(a) Certain decisions relating to the conduct of
the case are ultimately for the accused and others are
ultimately for defense counsel. The decisions which
are to be made by the accused after full consultation
with counsel include:

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(i) what pleas to enter;
(ii) whether to accept a plea agreement;
(iii) whether to waive a jury trial;

(iv) whether to testify in his or her own
behalf; and

(v) whether to appeal,

(b) Strateqic and tactical decisions should be
made by defense counsel after consultation with the
client where feasible and appropriate. Such decisions
include what witnesses to call, whether and how to
conduct cross-examination, what jurors to accept or
strike, what trial motions should be made, and what
evidence should be introduced.

American Bar Association, Standards for Criminal Justice --
Prosecution Function and Defense Function, Standard 4-5.2
(3d ed.l993) '

;d4 at 39, 960 P.2d at 1247 (emphasis added). Thus, the ABA
standards state that defense counsel should consult with the
client where feasible and appropriate before making tactical
decisions that are within the province of defense counsel. We
also note that under the HawaiH.Rules of Professional Conduct
(HRPC), a lawyer is required to consult with his or her client
concerning the objectives of representation and the means by
which these objectives are to be pursued. §§§ HRPC Rule
1.2(a).§/

In this case, it was appropriate for defense counsel

to consider Jones's strong desire to proceed to trial and the

consequences that a continuance would have on Jones's interests.

The circuit court specifically asked defense counsel whether he

y HRPC Rule 1.2 provides in relevant part:
Rule 1.2. SCOPE 0F REPRESENTATION.

(a) A lawyer shall abide by a client's decisions concerning
the objectives of representation, subject to paragraphs (c), (d)
and (e), and shall consult with the client as to the means by
which the objectives are to be pursued. A lawyer shall abide by a
client's decision whether to accept an offer of settlement of a
matter. In a criminal case, the lawyer shall abide by the
client's decision, after consultation with the lawyer, as to a
plea to be entered, whether to waive jury trial, and whether the
client will testify.

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was willing to represent Jones in the case despite the matters
defense counsel described as affecting his preparedness. Defense
counsel said yes. Defense counsel did not state that he was
incompetent to proceed or move to withdraw from the case.

The record indicates that defense counsel was already
representing Jones at least as of February 25, 2008, when a
hearing was held at which the State made an oral motion to
continue the trial. At that hearing, the circuit court granted
the State's oral motion. Trial was continued to April l4, 2008,
and commenced on that date. Thus, prior to the eventual trial,
it appears that defense counsel had been representing Jones for
an adequate period of time to become familiar with the case. The
record further shows that defense counsel received the interview
statements in the morning, before jury selection. Opening
statements were not given and the State's case did not begin
until that afternoon, and defense counsel did not cross-examine
Evans, the State's first witness, until the following day.
Therefore, defense counsel had an opportunity to review the
interview statements before opening statements and before having
to cross-examine the State's first witness, Finally, during the
trial, defense counsel did not state that matters had arisen
which rendered him incompetent to represent Jones, nor did
defense counsel ask for a continuance. Based on the existing
record, we cannot say that the circuit court's failure to sua
sponte continue the trial constituted plain error.

Our conclusion is supported by the principles
underlying the invited error doctrine. Under that doctrine, "a
defendant cannot by his own voluntary conduct invite error and
then seek to profit thereby." Phillips v. State, 527 So. 2d 154,
156 (Ala. 1988); see also Jones v. State, 600 P.2d 247, 250 (Nev.
l979) (stating that where the defendant participated in the
alleged error, the defendant was estopped from raising any
objection on appeal); Adkins v. State, 930 So. 2d 524, 538-40
(Ala. Crim. App. 200l) ("When a competent defendant knowingly and
voluntarily chooses a lawful course of action or defense

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strategy, counsel is essentially bound by that decision. If the
defendant is prejudiced in some respect by his own decision, he
should not later be heard to complain about those consequences by
challenging the conduct of his counsel." (Citation omitted.)).W
The HawaFi Supreme Court "has acknowledged that, as a general
rule, invited errors are not reversible." State v. Nichols, 111
HawaiH.327, 339 n.7, 141 P.3d 974, 986 n.7 (2006).W Even if an
invited error does not preclude appellate review, the invited
nature of the alleged error should factor into the plain error
analysis.

Here, Jones himself, after being apprised of defense
counsel's situation and desires, told the circuit court that he
wanted to proceed to trial. The fact that Jones himself insisted
on proceeding to trial reinforces our view that the circuit
court's failure to sua sponte order a continuance on the day of
trial did not "seriously affect the fairness, integrity, or
public reputation of judicial proceedings." §e§ §§wye;, 88
Hawaifi at 330, 966 P.2d at 642. vacating Jones's conviction
because the circuit court failed to sua sponte order a
continuance would not "serve the ends of justice," nor is it

necessary to "prevent the denial of fundamental rights." Id.
2.

Jones also contends that defense counsel provided
ineffective assistance by failing to request a continuance on the
morning of trial to enable defense counsel to become better
prepared for trial. We disagree. Based on the existing record,
Jones has not met his burden of demonstrating his entitlement to

relief on this ineffective assistance of counsel claim.

9 In Phi1lips and Jones, the error was invited by the defendant's
counsel while in Adkins, the error was invited by the defendant himself,

F The supreme court also noted in Nicho1s that "the general rule is
inapplicable where an invited error is so prejudicial as to be plain error or
to constitute ineffective assistance of counsel." Nichols, 111 HawaiH.at 339
n.7, 141 P.3d at 986 n.7.

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Jones has not shown that competent counsel for a
criminal defendant in the situation facing Jones's defense
counsel would have moved for a continuance over Jones's objection
or moved to withdraw from the case. Although defense counsel
indicated that he wanted more time to prepare, lawyers often
desire more time to prepare for trial. When questioned by the
circuit Court, defense counsel said he was willing to represent
Jones in the case. Defense counsel did not say he was
incompetent to represent Jones and did not move to withdraw.
Jones has not demonstrated that defense counsel's level of
preparedness was such that competent counsel for a criminal
defendant, under the circumstances facing Jones's defense
counsel, would have declined to proceed.

During trial, defense counsel did not revisit the need
for a continuance or note instances where his ability to cross-
examine witnesses or defend Jones was impaired. Jones does not
point to portions of the trial transcript which indicate with any
particularity that defense counsel's cross-examination of the
State's witnesses was deficient. Nor does Jones demonstrate or
explain how the absence of the emergency room physician or the
delayed production of medical recordsW substantially impaired
Jones's defense.W Thus, Jones has failed to meet his burden,
based on the record before us, of showing that defense counsel's
failure to move for a continuance to give defense counsel more
time to prepare resulted in the withdrawal or substantial

impairment of a meritorious defense.

y The record shows that during a morning break in jury selection, the
State provided defense counsel with copies of the medical records defense

' counsel claimed he had not received.

-’-/ Jones called his wife and step-son as witnesses at trial.
Accordingly, the concerns defense counsel raised about his inability to serve
subpoenas on Jones's wife and step-son were resolved.

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B.

Jones argues that defense counsel was ineffective for
prejudicing Jones's rights under HRPP Rule 48.lW Jones contends
that defense counsel rendered ineffective assistance by failing
to move to dismiss the charge based on a violation of HRPP Rule
48. Jones also contends that defense counsel was ineffective for
(1) "possibl[y]" failing to object to the State's request for a
continuance on February 25, 2008, and (2) failing to seek a
continuance on the day of the eventual trial, because had defense
counsel objected on February 25, 2008, or sought a continuance on
the day of trial, the State would have been forced to dismiss the
charge under HRPP Rule 48. Jones has not supplied this court
with a sufficient record to evaluate these claims, as it is his
burden to do, and we therefore reject them.

Approximately 421 days elapsed between the time of
Jones's arrest and the date of trial. This appears in part
attributable to the fact that Jones initially entered a no
contest plea to a lesser charge, but later withdrew it. Although
Jones asserts that the HRPP Rule 48 time limits had been violated
before his April 14, 2008, trial,¥/ Jones fails to support this
assertion with references to matters in the record, specifically,

E/ HRPP Rule 48 in part pr0vides:

(b) By Court, Except in the case of traffic offenses that
are not punishable by imprisonment, the court shall, on motion of
the defendant, dismiss the charge, with or without prejudice in
its discretion, if trial is not commenced within six months:

(1) from the date of arrest if bail is set or from the
filing of the charge, whichever is sooner, on any offense based on
the same conduct or arising from the same criminal episode for
which the arrest or charge was made;

HRPP Rule 48 also sets forth numerous different categories of periods of time

that "sha1l be excluded in computing the time for trial commencement." HRPP
Rule 48(c); see also HRPP Rule 48(d).

ly The State disputes Jones's contention that the HRPP Rule 48 time
limits had been violated before the trial.

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the transcripts of the hearings at which trial continuances were
granted.

This court was presented with a similar situation in
State v. Maddox, 116 Hawafi 445, 173 P.3d 592 (App. 2007). In
Maddox, the defendant argued on appeal that his trial counsel was
ineffective for failing to file a motion to dismiss the
indictment pursuant to HRPP Rule 48 because the trial was not
commenced within the time period required by HRPP Rule 48. ;Q;
at 463, 173 P.3d at 6l0. The defendant "did not include as part
of the record on appeal transcripts of hearings held on the
State's motions to continue the trial that were granted by the
circuit court." ld; We concluded that the defendant "failed to
meet his burden of demonstrating 'error by reference to matters
in the record.' Without the missing transcripts, [the defendant]
cannot show that HRPP Rule 48 had been violated and thus cannot
meet his burden of demonstrating that his counsel was ineffective
for failing to file a HRPP Rule 48 motion to dismiss." ;dL
(quoting State v. Hoang, 93 Hawafi 333, 334, 3 P.3d 499, 500
(2000)). Accordingly, we rejected the defendant's claim that his
counsel provided ineffective assistance in failing to file an
HRPP Rule 48 motion to dismiss the indictment. ld;i

Here, Jones has likewise failed to provide this court
with transcripts of the hearings at which the trial continuances
were granted. Without the relevant transcripts, we are unable to
determine whether there were non-excludable delays that exceeded
the time limit set forth under HRPP Rule 48. Because Jones did
not satisfy his threshold burden of showing that HRPP Rule 48 was
violated, Jones's claim that his defense counsel provided
ineffective assistance by not moving to dismiss on HRPP Rule 48
grounds must fail.

Jones's failure to provide this court with the relevant
transcripts is also fatal to his related claims that defense
counsel's "possible failure" to object to the State's request for
a continuance on February 25, 2008, and failure to seek a

continuance on the day of trial constituted ineffective

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assistance because such conduct prejudiced Jones's HRPP Rule 48
rights. Without the relevant transcripts, we are unable to
assess whether an objection by defense counsel would have
rendered the continuance granted on February 25, 2008, non-
excludable or whether a request by defense counsel for a
continuance on the day of trial would have led to an HRPP Rule 48
violation. In addition, these claims are unpersuasive because
they are based on speculation. We do not know whether the
circuit court would have granted the continuance on February 25,
2008, if defense counsel had objected. We also do not know how
long a continuance the circuit court may have granted, if defense
counsel had requested one on the day of trial, and thus we cannot
say whether any continuance granted would have resulted in an
HRPP Rule 48 violation. Accordingly, we reject Jones's
ineffective assistance of counsel claims that are based on HRPP
Rule 48.¥/
C.

We also reject Jones's claims that defense counsel was
ineffective for: (l) neglecting to call exculpatory witnesses at
trial; (2) calling as a witness Jones's wife, Tracey, who gave
testimony detrimental to the defense, without defense counsel
conducting an adequate prior investigation; and (3) persuading
Jones to not testify. We conclude that Jones has not met his
burden of establishing the ineffectiveness of defense counsel
with respect to these claims based on the existing record,

Jones has not pointed to any reliable evidence in the
record indicating to what the alleged exculpatory witnesses would
have testified. §gg Richie, 88 Hawafi at 39, 960 P.2d at 1247
("Ineffective assistance of counsel claims based on the failure

to obtain witnesses must be supported by affidavits or sworn

li/ In its answering brief, the State argues that implicit in Jones's
ineffective assistance of counsel claim is the assumption that a dismissal
under HRPP Rule 48 would have been with prejudice. In light of our analysis,
we need not address whether Jones was required to show that any dismissal
under HRPP Rule 48 would have been with prejudice.

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statements describing the testimony of the proffered
witnesses."); §§§ also State v. Fukusaku, 85 HawaFi 462, 481,

946 P.2d 32, 51 (1997) (concluding that a defendant's speculation
about the potential testimony of uncalled witnesses is
insufficient to support an ineffective assistance of counsel
claim). Jones also has not demonstrated through evidence in the
record that defense counsel provided ineffective assistance with
respect to calling Tracey as a witness, Thus, his claims
relating to the alleged exculpatory witnesses and Tracey are
without merit.

Jones's claim that defense counsel was ineffective for
"persuading" Jones not to testify at trial is equally without
merit. The Hawafi Supreme Court has stated that since "the
decision whether or not to testify is a highly tactical one that
is 'ultimately committed to a defendant's own discretion,' an
attorney's recommendation as to whether or not a defendant should
testify will rarely qualify as an error reflecting a 'lack of
judgment.'" Jones V. State, 79 HaWafi 330, 334, 902 P.2d 965,
969 (1995) (quoting Tachibana v. State, 79 Hawai‘i 226, 232, 900
P.2d 1293, 1299 (1995)). The record indicates that Jones was
given a Tachibana colloquy by the circuit court, and Jones does
not challenge the adequacy of the circuit court's advisement.
Thus, Jones carries a high burden in proving that defense
counsel's advice on whether Jones should testify constitutes
ineffective assistance.

Jones has not met that burden here. The record does
not include an explanation by defense counsel of the advice he
gave Jones on whether Jones should testify or the reasons for
such advice. Jones has not demonstrated through evidence in the
record that defense counsel provided ineffective assistance in
advising Jones on whether to testify.

0 D.

with the exception of Jones's ineffective assistance of

counsel claims based on HRPP Rule 48, we deny Jones's ineffective

assistance of counsel claims without prejudice to Jones raising

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such claims at an HRPP Rule 40 proceeding. As to the claims
based on HRPP Rule 48, Jones had the opportunity based on the
existing record to refer this court to matters that could
possibly have supported his claims that defense counsel provided
ineffective assistance, but Jones failed to do so. With respect
to Jones's other claims of ineffective assistance, however, we
conclude that Jones did not have a fair opportunity to develop
the record to support his claims. We cannot say that with a more
fully developed record, Jones would not be able to establish
these claims. Accordingly, we deny without prejudice Jones's
ineffective assistance of counsel claims that are not based on
HRPP Rule 48. See State V. SilVa, 75 Haw. 419, 439-40, 864 P.2d
583, 592-93, 593 (1993).
E.

Jones argues that the circuit court erred by: (l)
allowing Jones to determine whether instructions on lesser
included offenses should be given to the jury; and (2) failing to
instruct the jury on lesser included offenses. we agree on both
points. However, we conclude that the circuit court's ultimate
error in failing to instruct the jury on lesser included offenses
was harmless.

After the conclusion of the evidentiary portion of
trial, the circuit court noted that evidence had been presented
that could suggest that Jones committed the lesser included
offense of third degree assault, a misdemeanor, or third degree
assault during a mutual affray, a petty misdemeanor. The circuit
court then proceeded to give Jones himself the option of whether
the jury would be instructed on the lesser included offenses.
After a colloquy between the circuit court and Jones, Jones
stated that he only wanted the circuit court to instruct the jury
on the charged offense, second degree assault, and not on any
lesser included offenses. Accordingly, the circuit court did not
instruct the jury on lesser included offenses.

The circuit court erred in allowing Jones to control

the decision on whether the circuit court would instruct the jury

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on lesser included offenses and in failing to instruct the jury
on lesser included offenses. In State v. Haanio, 94 HawaFi 405,
413, 16 P.3d 246, 254 (2001), the HawaiU.Supreme Court held that
"trial courts must instruct juries as to any included offenses
when 'there is a rational basis in the evidence for a verdict
acquitting the defendant of the offense charged and convicting
the defendant of the included offense . . . ." lt further held
that "trial courts are duty bound to instruct juries 'sua sponte

regarding lesser included offenses,' having a rational
basis in the evidence." lQ; at 415, 16 P.3d at 256 (citation and
footnote omitted; ellipsis in original).

Haanio went on to hold, however, that while the trial
court's failure to give appropriate included offense instructions
constitutes error, "[s]uch error . . . is harmless when the jury
convicts the defendant of the charged offense or of an included
offense greater than the included offense erroneously omitted
from the instructions." lQ; at 415, 16 P.3d at 256. Here, the
jury convicted Jones of the charged offense of second degree
assau1t. Thus, the circuit court's failure to instruct the jury
on lesser included offenses was harmless error. §§§ iQ; at 415-
16, 16 P.3d at 256-57.

F.

Jones's argument that the circuit court erred in
failing to give his proposed jury instruction on self-defense is
without merit. Jones's proposed jury instruction on self-defense
consisted of language taken from this court's decision in State
V. LubOng, 77 HaWaiY.429, 433, 886 P.2d 766, 770 (App. l994).
Jones argues that his proposed instruction "more clearly" and in
"layman's terms" identifies the factors the jury must consider in
determining whether Jones's use of force was justified than the
following language used by the circuit court in its self-defense

instruction:

The reasonableness of the defendant's belief that the
use of such protective force was immediately necessary
shall be determined from the viewpoint of a reasonable
person in the defendant's position under the

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circumstances of which the defendant was aware or as
the defendant reasonably believed them to be.

The Hawafi Supreme Court has held that the above-
quoted language from the circuit court's instruction is a correct
statement of the law. State v. Augustin, 101 HawaFi 127, 127-
28j 63 P.3d lO97, 1097-98 (2002). Jones does not claim
otherwise. We conclude that the circuit court did not err in
failing to give the self-defense instruction proposed by Jones.

IV. CONCLUSION

We affirm the circuit court's July 10, 2008, Judgment.
With the exception of Jones's ineffective assistance of counsel
claims based on HRPP Rule 48, our affirmance is without prejudice
to Jones's raising his claims of ineffective assistance of
counsel at a subsequent HRPP Rule 40 proceeding.

DATED= Honolulu, Hawai‘i, August 5, 2010.

On the briefs: _
Gregory H. Meyers gag

(Hempey & Meyers LLP) Chief Judge

for Defendant-Appellant
Lauren C. McDowell
(Justin F. Kollar, on the briefs) Associate Judge

Deputy Prosecuting Attorneys

County of Kauai :§ \ LL4 ~

for Plaintiff-Appellee
Associate Jud

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