State v. Mundon
Full Opinion (html_with_citations)
Opinion of the Court by
On July 1, 2009, this court accepted a timely application for a writ of certiorari, filed on May 21, 2009, by petitioner/defendant-appellant James Mundon, seeking review of the Intermediate Court of Appealsâ (ICA) March 20, 2009 judgment on appeal, entered pursuant to its February 27, 2009 summary disposition order (SDO). Therein, the ICA affirmed in part and vacated in part the Circuit Court of the Fifth Circuitâs
Briefly stated, the charges levied against Mundon (totaling 28-counts) were based on an incident during which Mundon threatened the complaining witness [hereinafter, the complainant] with a knife, forced her to remove her clothes, subjected her to sexual kissing and touching, and, later, tackled and restrained her when she tried to escape. During the pre-trial proceedings, Mundon waived his right to counsel and represented himself at trial with the assistance of standby counsel. Following a six-day jury trial, Mun-don was convicted of the above enumerated offenses, and Mundon appealed. The ICA vacated and remanded all of his convictions, except for the attempted sex assault 1st conviction, which the ICA affirmed.
Mundon contends on application that the ICA erred in holding that the trial court did not err in failing to provide a specific unanimity instruction with respect to the charges of attempted sex assault 1st, TT1, and kidnapping. As discussed more fully infra, Mundon also contends that the ICA erred in holding that the trial court did not deprive him of his state and federal constitutional rights (1) to due process, confrontation, a speedy trial, and assistance of counsel and (2) to have a jury find the facts necessary for the imposition of a consecutive sentence. Based on the discussion below, we hold that the ICA erred in concluding that: (1) a specific unanimity instruction was not required with respect to the offenses of attempted sex assault 1st and TT1; (2) the trial courtâs failure to provide Mundon with certain written transcripts was harmless error; and (3) Mundonâs constitutional rights were not violated when the trial court refused to continue trial after Mundon complained of his inability to retrieve his trial preparation materials. Accordingly, we reverse Mundonâs conviction for TT1, vacate Mundonâs remaining convictions, and remand the case for a new trial consistent with this opinion.
A. Procedural Background
1. Pre-Trial Proceedings
On August 15, 2005, Mundon was chargedâvia indictment
Soon thereafter, on June 7, 2006, Castillo moved to withdraw as Mundonâs counsel, which the trial court granted on July 6, 2006, based on Mundonâs representation that he was going to hire private counsel. Specifically, Mundon advised the court that he âwould like to waive representation from the [e]ourt appointed [attorney] and ... take over the case [him]self until [he could] purchase an attorney from Oahâu and have that person take over.â Ultimately, the trial court, in September 2006, appointed Caren Dennem-eyer to act as Mundonâs standby counsel based on Mundon, again, indicating his desire to represent himself and requesting appointment of standby counsel. Although Dennem-eyer attempted to withdraw as standby counsel on the eve of trial (discussed infra), the trial court denied her request.
Between January 2006, when Mundon entered his not guilty pleas, and the commencement of trial on December 11, 2006, the trial court entertained a variety of motions related to (1) Mundonâs efforts to secure written transcripts of a February 2004 preliminary hearing
2. Jury Trial
Mundonâs jury trial commenced on December 11, 2006 and lasted six days. The prosecutionâs ease in chief consisted of, inter alia, the testimonies of the complainant, Kaua'i Police Department (KPD) Detective Marvin Rivera (Det. Rivera), and six other members of the KPD. Mundon also testified on his own behalf, relating a version dramatically different from the complainantâs version of the events that occurred on the night in question.
a. the complainantâs testimony
The complainant testified that, on Febru
After some time passed, Tito did not show up, and the complainant asked Mundon to take her back to Kapa'a Beach. The complainant again fell asleep in the track; when she awoke, she realized they were not at Kapaâa Beach, but in a dark, secluded area on the other side of the hotel. Mundon parked the track, got out, and told the complainant that he was going to see if he could find Tito or a security guard at the hotel. When Mundon returned, he told the complainant that no one was around. Mundon left again to look for Tito, and the complainant fell asleep.
Some time later, the complainant felt something touching her leg and awoke to find Mundon putting his hand underneath her underwear, near her outer labia or pubic area. She told Mundon to stop; after Mun-don stopped and apologized, she went back to sleep. When she awoke, she again found Mundon putting his hand in her underwear and feeling her outer labia. Mundon complied with her request to stop and again apologized, and the complainant went back to sleep. When the complainant awoke for a third time and felt Mundon touching her, she tried to get out of the truck. However, before she could exit the vehicle, Mundon grabbed her and said, âDonât move. I have a knife. It[â]s up to your neck, and Iâll cut you if you try and get away.â The complainant did not see the knife, but felt something cold and sharp along the front of her neck.
Mundon told her to relax and put the knife down, but reminded her that he would cut her if she did not do what he wanted. He next told the complainant to remove her clothes. The complainant complied and removed almost all of her clothing. Mundon then began touching and kissing the complainantâs breasts, doing so on each breast approximately ten to fifteen times. Mundon also told the complainant to touch his penis, but she refused. At one point, Mundon stated to the complainant that, because she probably would tell the police about the incident, it would be easier to kill her and proceeded to retrieve rope and tape from his glove compartment. At that point, the complainant panicked and, in an attempt to get out of the truck, told Mundon that she needed to use the bathroom. Although reluctant at first, Mundon eventually allowed her to exit on the driverâs side to use the bathroom. When she was done, the complainant hurriedly got back into the truck through the driverâs side, quickly exited on the passengerâs side, and began running away. Mundon gave chase, caught up with her, and tackled her to the ground with the complainant ending face down in the sand. A struggle ensued.
During the struggle, the complainant saw that Mundon had the knife in his hand, although it was âclosed,â and she started to scream. Mundon continued to hold her down on the ground and attempted to silence her by sticking his fingers and quantities of sand down her throat while repeatedly telling her to shut up. The complainant bit Mundonâs fingers and continued to try to push him off her. At one point, Mundon punched the complainant hard in the ribs. Eventually, the complainant stopped struggling when she noticed that Mundon seemed extremely winded and sick. She then told Mundon that
b. testimonies of law enforcement officers
The prosecution also called Det. Rivera, who testified that he was assigned as the lead investigator on the complainantâs case and that his duties included taking the complainant to the location of the incident, as well as searching Mundonâs truck, which was later found at Mundonâs home. Det. Rivera corroborated the complainantâs testimony regarding the location of the truck, the area where the struggle occurred, and the location of the nearby hotel. He also testified that he found the complainantâs clothes, the knife, the rope, and the tape in the truck.
Other KPD officers testified and corroborated the complainantâs testimony as to the location of the truck and the area where the struggle had occurred. The officers also corroborated the complainantâs description of Mundonâs track.
c. Mundonâs testimony
Mundon was the sole witness for the defense. Mundon testified that, after he parked the truck at the beach, he went to check out the hotel, but left his keys, telephone, and a light on for the complainant. He took a long walk toward the hotel, but, because he did not see anybody (including Tito), he returned to the track and told the complainant it was late and that he needed to leave. He offered to take the complainant back to Kapa'a and said that he would give her some time to âget [her]self put together.â Mundon claimed that, at that point, the complainant indicated she had to use the bathroom and wanted to change her clothes. Mundon, therefore, gave her a towel, pointed her to a place where she could go, and decided to take a walk to give her some time to change and âget her stuff together.â
Upon returning to his truck, he saw smoke coming from inside and became upset because it was a company truck, and he did not want it to get messed up. He confronted the complainant regarding the smoke, noticed that she was not fully clothed, told her she better put her clothes on, and said âget the âFâ out of here before I fly you out of this car.â He slammed the door on her, turned around, and walked away from the truck because he was mad. After a few moments, he heard the truck door open, then close, and turned around to see the complainant coming toward him. He grabbed her face and her backpack and threw her to the ground, causing both of them to fall down. He then noticed that the complainant had his knife in her hand and jumped on top of her in an attempt to wrestle the knife away from her. The complainant continuously kicked him, but he continued to hold her down. Eventually, the complainant dropped the knife and ran away. Feeling very sick, Mundon picked up the knife, walked back to his truck without looking to see where the complainant had gone, and drove home. Upon arriving at home, he fell asleep in his track and was awakened by police officers who placed him under arrest.
d.juryâs verdict
The jury returned its verdict on December 20, 2006, finding Mundon guilty of (1) one count of attempted sex assault 1st, (2) one count of TT1, (3) one count of kidnapping, (4) one count of assault 3d, and (5) the lesser included offense of attempted assault 2d. Mundon was acquitted of all of the remaining charges, including the second count of TT1, discussed infra.
3. Sentencing
Mundon was sentenced on February 15, 2007. After hearing arguments from both parties, the trial court sentenced Mundon to, inter alia: (1) twenty years of imprisonment for each of the counts of kidnapping and
B. Appeal Before the ICA
On direct appeal, Mundon contended that the trial court violated his constitutional right to due process when it failed to provide the jury with a unanimity instruction as to the charges of assault 3d, attempted sex assault 1st, TT1 and kidnapping. Mundon further argued that the trial court: (1) violated his due process and confrontation rights when it failed to provide him with the written transcripts he had requested; (2) violated his due process rights by refusing to continue the trial even though he was without his trial preparation materials at the start of trial; (3) erred in denying his motion to dismiss the charges despite violations of his constitutional right to a speedy trial and HRPP Rule 48
In response, the prosecution essentially argued that a specific unanimity instruction was not required because the prosecution either (1) elected the single act that supported the conduct element of the offenses as required by State v. Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996), discussed infra, or (2) proved that the offense constituted a continuing course of conduct. Further, the prosecution argued that Mundonâs constitutional rights were not violated because: (1) although Mundon was entitled to written transcripts, he failed to show that he was prejudiced by the trial courtâs failure to provide them; (2) the trial court properly refused to continue the trial as Mundon had ample time to prepare his defense; (3) Mundonâs motion to dismiss based on speedy trial grounds was properly denied; (4) Mundon did not have a constitutional right to speak with his standby counsel during cross-examination; and, (5) pursuant to State v. Kahapea, 111 Hawai'i 267, 141 P.3d 440 (2006), jury fact-finding was not required for the imposition of consecutive sentences.
As discussed more fully infra, the ICA rejected all of Mundonâs contentions, except it agreed with Mundon that he was entitled to a unanimity instruction with respect to the charge of assault 3d. SDO at 3-7. Additionally, the ICA sua sponte held that âit is possible that Mundon's convictionsâ for kidnapping, TT1, attempted assault 2d, and assault 3d were âimproperly based on the same conduct and[,] thus[,] warranted a merger instruction to the jury. See HRS § 701-109(1) and (4) (1993).â Id. at 7 (other citations omitted). Consequently, the ICA vacated the four aforementioned convictions and remanded with instructions that the prosecution shall have the option to: (1) either (a) dismiss the TT1 or the kidnapping offense, or (b) retry Mundon on both counts, with an appropriate merger instruction given to the jury; and (2) either (a) dismiss the assault 3d or the attempted assault 2d of
The ICA filed its judgment on appeal on March 20, 2009. Thereafter, this court accepted Mundonâs application on July 1, 2009 and heard oral argument on August 10, 2009.
II. STANDARDS OF REVIEW
A. Questions of Constihitional Law
â[This court] review[s] questions of constitutional law under the ârighl/wrongâ standardâ and, thus, âexercises [its] own independent judgment based on the facts of the case.â State v. Jenkins, 93 Hawai'i 87, 100, 997 P.2d 13, 26 (2000) (citations omitted).
B. Jury 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. However, 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.
State v. Nichols, 111 Hawai'i 327, 334, 141 P.3d 974, 981 (2006) (format altered) (citations and internal brackets omitted).
C. Sentencing
A sentencing judge generally has broad discretion in imposing a sentence. The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendantâs contentions. And, generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.
State v. Kahapea, 111 Hawai'i 267, 278, 141 P.3d 440, 451 (2006) (citing State v. Rauch, 94 Hawai'i 315, 322, 13 P.3d 324, 331 (2000)) (format altered) (other citations, internal quotation marks, and brackets omitted).
III. DISCUSSION
As previously stated, Mundon challenges the ICAâs holdings that: (1) no unanimity instruction was required with respect to the charges of attempted sex assault 1st, TT1, and kidnapping; (2) the trial court did not violate Mundonâs constitutional rights when it (a) failed to provide him with the written transcripts of pre-trial proceedings that he had repeatedly requested, (b) refused to continue the trial when Mundon complained of his inability to retrieve his trial preparation materials, (c) rejected Mundonâs motions based on non-conformities with the rules of court that improperly delayed the trial, and (d) prevented Mundon from consulting with his standby counsel during a fifteen-minute break in his cross-examination; and (3) Mun-don was not denied his constitutional right to have a jury find the facts necessary for the imposition of a consecutive sentence.
A. Unanimity Jury Instructions
The jury was instructed on all charges, including the lesser included offense of sex assault 2d. With regard to the twenty-one counts of sex assault 3d, the jury was instructed as to the specific conduct that formed the basis for each individual count.
On direct appeal, the ICA held, inter alia, that âno unanimity instruction was required
On application, Mundon maintains that a unanimity instruction was required for each offense because: (1) â[f|or unanimity purposes, it would prove anomalous to treat a series of attempted sexual assaults as a continuing course of conduct, while each successful sexual assault is considered a separate criminal act,â citing Apao, 95 Hawai'i at 446, 24 P.3d at 38; (2) the jury found Mundon guilty of only one count of TT1 and, â[without a unanimity instruction^] it is impossible to know what he was convicted ofâ; and (3) the prosecution adduced evidence of more than one act that could have constituted kidnapping.
Preliminarily, we recognize that Mundon did not raise a timely objection to the trial courtâs failure to provide a unanimity instruction or to the prosecutionâs failure to elect a specific act. However, we have held that it âmay recognize plain error when the error committed affects substantial rights of the defendant.â Arceo, 84 Hawai'i at 33, 928 P.2d at 875 (internal brackets and ellipses omitted). We have also stated that âit may be plain error for a trial court to fail to give a [jury] instruction even when neither the prosecution nor the defendant have requested it ... because ... the ultimate responsibility properly to instruct the jury lies with the [trial] court.â State v. Kinnane, 79 Hawai'i 46, 50, 897 P.2d 973, 977 (1995) (emphasis added); see also Arceo, 84 Hawai'i at 33, 928 P.2d at 875 (holding that the trial court plainly erred in failing to provide a specific unanimity instruction to the jury).
It is well-settled that âthe right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, [sections] 5 and 14 of the Hawaii Constitution.â Arceo, 84 Hawai'i at 30, 928 P.2d at 872. In Arceo, we held that,
when separate and distinct culpable acts are subsumed within a single count charging a sexual assaultâany one of which could support a conviction thereunderâ and the defendant is ultimately convicted by a jury of the charged offense, the defendantâs constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief the prosecution is required to elect the specific act upon which it is relying to establish the âconductâ element of the charged offense; or (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
Id. at 32-33, 928 P.2d at 874-75 (emphases added). We further concluded that,
[although Arceo was concerned with sexual assault, the requirement expressed therein has been discussed in cases involving a variety of offenses where multiple acts and jury unanimity were at issue. Moreover, according to [State v.] Valentine, [93 Hawai'i 199, 208, 998 P.2d 479, 488 (2000) ], two conditions must converge before an Arceo unanimity instruction, absent an election by the prosecution, is necessary: (1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that only one offense was committed.
State v. Kassebeer, 118 Hawai'i 493, 508, 193 P.3d 409, 424 (2008) (emphasis added) (internal citations omitted).
However, âa specific unanimity instruction is not required if (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendantâs action constituted a continuous course of conduct.â State v. Apao, 95 Hawai'i 440, 447,
1. Kidnapping
As previously noted, â[a] person commits the offense of kidnapping if the person intentionally or knowingly restrains another person with intent to ... [ijnflict bodily injury upon that person or subject that person to a sexual offense[.]â HRS § 707-720(l)(d). â âRestrainâ means to restrict a personâs movement in such a manner as to interfere substantially with the personâs liberty ... [b]y means of force, threat, or deeeption[.]â HRS § 707-700 (1993). Mundon contends that a unanimity instruction was required with respect to the kidnapping charge inasmuch as the prosecution adduced evidence of more than one act of restraint that could have constituted kidnapping. We disagree.
Here, nothing in the statutory definition of kidnapping precludes the prosecution from proving that the restraint was accomplished by a series of acts constituting a continuing course of conduct. Indeed, we have previously stated that â[i]t is not difficult to imagine a series of threats and coercive conduct that might be employed to sustain a kidnapping ... over a period of timeâ and, âunder certain circumstances, kidnapping would be an example of a continuing offense.â Apao, 95 Hawai'i at 448, 24 P.3d at 40 (citing Arceo, 84 Hawai'i at 18, 928 P.2d at 860). Further, the ICA has recognized that, based on this courtâs decision in Apao, âit is evident that[,] where a series of threats and coercive conduct are employed to sustain a kidnapping over a period of time, a court is not required to give a specific unanimity instruction.â Sabog, 108 Hawai'i at 114, 117 P.3d at 846. Thus, if the prosecution presented evidence at trial that the kidnapping occurred as a result of one continuous, uninterrupted course of conduct, no specific unanimity instruction was required. Apao, 95 Hawai'i at 446, 24 P.3d at 38.
At trial, the evidence showed that Mundon held a knife up to the complainantâs throat and threatened to âcut herâ if she tried to get out of his truck. Although Mun-don put down the knife prior to ordering the complainant to remove her clothes, he continued to threaten her by saying he would cut her if she did not comply with his instructions. At one point, Mundon allowed the complainant to get out of the truck to use the bathroom. The complainant then ran, but Mundonâwith knife in hand (although the knife was in a closed position)âcaught up to her and tackled her in the sand. While struggling with the complainant in the sand, Mundon repeatedly shoved his fingers and sand into her mouth and punched her in the ribs. The prosecution maintained during closing argument that
[t]his is what the [prosecution] has to prove beyond a reasonable doubt. That on or about the 5th day of February 2004 in the County of Kauai, State of Hawaii, [Mundon] restrained another person. [Mundon] restrained [the complainant]. He did it in a number of ways: With a knife, by tackling her, he restrained her.
(Emphases added.)
Based on the evidence adduced at trial, we conclude that, from the time that Mundon threatened the complainant with a knife in the truck until the time that she escaped from the struggle in the sand, Mundon was restricting her movement and substantially interfering with her liberty. Indeed, the evidence demonstrates that Mundonâs specific acts, i.e., repeatedly threatening the complainant, chasing her when she tried to flee, and forcibly tackling her into the sand, constituted multiple instances of threats and force committed to accomplish the singular goal of restraining the complainant. Thus, it is apparent that Mundonâs continuous act of restraint (by threats and coercive conduct) was uninterrupted. Furthermore, the prosecutionâs argument that âMundon restrained the complainant [and that he] did it in a number of ways: With a knife, by tackling her, he restrained herâ demonstrates its view that Mundon engaged in a series of acts constituting a continuous course of conductâ not separate and distinct instances of kidnapping, as Mundon contends.
2. Attempted Sexual Assault in the First Degree
As previously indicated, Mundon contends that, because each âsexual assault is considered a separate criminal act,â the trial court should have given a unanimity instruction as to attempted sex assault 1st. For the reasons discussed below, we hold that a specific unanimity instruction was required.
Mundon was charged with a single count of attempted sex assault 1st. âA person commits the offense of sexual assault in the first degree if ... [t]he person knowingly subjects another person to an act of sexual penetration by strong compulsion.â HRS § 707-730(l)(a). Further, â[a] person is guilty of an attempt to commit a crime if the person ... [ÂĄIntentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the personâs commission of the crime.â HRS § 705-500.
At trial, the evidence showed that Mundon stuck his hand in the complainantâs underwear and touched her outer labia three times. Each time the complainant tried to âwriggle awayâ or asked him to stop, Mun-don immediately stopped and apologized. Later, however, Mundonâwhile holding a knife to the complainantâs throatâthreatened to cut her if she tried to escape. After ordering the complainant to remove her clothes, he began kissing and touching her breasts with his hands âgoing everywhere.â
During closing argument, the prosecution explained: âAttempted sexual assault in the first degree: This is [Mundon] trying to penetrate [the complainant] with his fingers. He kept trying. She kept wiggling. He kept trying. It[â]s the first step to the act of penetration with his fingers.â (Emphases added.)
The evidence and the reasonable inferences therefrom established that Mundon made three separate attempts to subject the complainant to an act of sexual penetration based upon the complainantâs testimony that Mundon put his hand in her underwear three times, touching her outer labia, and, after each time, Mundon stopped and apologized. The prosecutionâs closing argument that Mundon âkept tryingâ and that the complainant âkept wiggling,â trying to get away, confirms the prosecutionâs view that it considered Mundonâs acts as multiple, separate attempts to penetrate the complainant with his fingersânot a continuing course of conduct. Further, the prosecutionâs statement during closing argument that âit[â]s the first step to the act of penetrating the complainant with his fingersâ supports the conclusion that the prosecution viewed each âtouchingâ as the first step of three separate attempts to penetrate the complainant with his fingersâagain, not a continuing course of conduct.
Nevertheless, even if the foregoing argument can be interpreted as demonstrating the prosecutionâs view that Mundonâs separate acts were committed as part of a single, continuing course of conduct, we have held that
sexual assault in the first degree, in violation of HRS § 707-730(l)(b), and sexual assault in the third degree, in violation of HRS § 707-732(l)(b), are notâand cannot beââcontinuing offensesâ and that each distinct act in violation of these statutes constitutes a separate offense under the [Hawaiâi Penal Code]. Were this not the case, a person who has committed one sexual assault upon a victim could commit with impunity many other such acts during the same encounter, and the commission of one act would insulate the perpetrator from further criminal liability for any additional acts of the same character perpetrated on the same [victim] in subsequent encounters.
Arceo, 84 Hawai'i at 21-22, 928 P.2d at 863-64 (emphasis added) (internal citations, some
Accordingly, even if the prosecutionâs closing argument is disregarded, we conclude that, given the foregoing propositions of law and the evidence adduced at trial, Mundonâs multiple attempts to penetrate the complainant with his fingers cannot constitute a continuing course of conduct and must be considered as separate and distinct acts. Thus, it was plain error for the trial court not to issue a specific unanimity instruction with respect to the attempted sex assault 1st charge and that the ICA erred in holding otherwise.
3. Terroristic Threatening in the First Degree
The prosecution argued to the jury that there were
ftjwo huge instances in this case where [Mundon] threatened [the complainant]. First, in the truck with the knife. A threat doesnât have to be a verbal threatâ although in this case he was saying, âIâm going to cut you. Iâm going to cut you.â
It can also be a threat by conduct. Holding a knife to someoneâs throat is threatening. That happened in the truck. Thereâs two counts of [TT1] in this case because the other place it happened was in the sand when they [wejre struggling over the knife.
Another threat: She was terrified of that knife while she was in the sand and she was trying desperately so he couldnât open that knife by yelling repeatedly.
As previously indicated, Mundon contends that, although he was charged with two counts of TT1, âthe jury found [him] guilty of only one count ... and, [without a unanimity instruction^] it is impossible to know what he was convicted of.â In other words, Mundon appears to assert that, although a separate and distinct culpable act served as the basis for each separate count of TT1, each distinct act was not associated with a specific TT1 count. Thus, without a unanimity instruction, it is impossible to presume that the one finding of guilty by the jury was, in fact, based on the same culpable act and agreed upon by all twelve jurors.
At first blush, it would seem that, under Arceo, a unanimity instruction would not be required inasmuch as Mundon was charged with two counts of TT1 based on two separate and distinct culpable acts. Arceo, 84 Hawai'i 1, 928 P.2d 843 (requiring unanimity if the prosecution adduces evidence of two separate acts but submits to the jury that only one offense was committed). However, the Arceo court referred to a line of federal decisions that recognized that the jury should be given a specific unanimity instruction under additional circumstances. Id. at 32, 928 P.2d at 874.
For example, in United States v. Echeverry, 719 F.2d 974 (9th Cir.1983), the United States Court of Appeals for the Ninth Circuit held that:
In a routine case when a jury is presented with multiple counts or schemes, it may be possible to protect the defendantâs right to an unanimous jury verdict by ... a general [unanimity] instruction. When it appears, however, that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. To correct any potential confusion in such a case, the trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts.
Id. at 974-75 (emphases added); see also United States v. Payseno, 782 F.2d 832 (9th Cir.1986) (vacating the defendantâs conviction for extortion and remanding for a new trial because the evidence connecting the defendant to the alleged threats created confusion for the jury regarding the basis for his conviction). Further, the Ninth Circuit has held that, âwhere the indictment is sufficiently broad and ambiguous so as to present a danger of jury confusion,â a specific unanimi
Additionally, the ICA, in State v. Auld, 114 Hawai'i 135, 157 P.3d 574 (App.2007), acknowledged and applied the Ninth Circuitâs holding in Echeverry. In Auld, the defendant was charged with two counts of TT1. 114 Hawai'i at 136, 157 P.3d at 575. At trial, the prosecution adduced evidence of several persons that the defendant had threatened, as well as multiple acts by the defendant, that served as the basis for the two counts of TT1. Id. at 136-37, 157 P.3d at 575-76. No specific unanimity instruction was given with respect to which persons were threatened in which count, and the jury convicted the defendant on both counts of TT1. Id. at 136, 138, 157 P.3d at 575, 577. The defendant appealed, arguing that, although a specific unanimity instruction was given with respect to the acts committed by the defendant, the jury should have been given a unanimity instruction as to âthe individual(s) who was/ were the victim[ (s) ].â Id. (emphasis added). The ICA agreed, holding that a similar instruction should have been given to the jury âas to the persons threatened.â Id. at 142, 157 P.3d at 581. More specifically, the ICA stated that, because both the indictment and jury instructions identified four possible victims and there was no instruction requiring unanimity as to the persons threatened,
each of the twelve jurors could have based his or her determination of guilt on a finding of [seven] victim alternatives.... Allowing each juror seven choices and not requiring all jurors to agree on no less than one violates the rule requiring a unanimous jury regarding the persons threatened, which was necessary to prove the offense charged.
Id. at 143-44, 157 P.3d at 582-83. In other words, because there was a possibility that the conviction resulted from different jurors concluding that the defendant committed a specific act, but with respect to different persons, there was no way to determine whether the jury produced a unanimous verdict with respect to the person or persons against whom each crime was committed. Consequently, the ICA vacated both counts of TT1 and remanded for a new trial with instructions to provide the jury with a specific unanimity instruction as to the person(s) threatened for each count. Id. at 145, 157 P.3d at 584.
Here, Mundon was charged with two counts of TT1 (counts 4 and 26), but convicted of only count 4. The language of the indictment as to each count was identical and stated as follows:
On or about the 5th day of February, 2004, in the County of Kaua'i, State of Hawaii, [Mundon], with intent to terrorize or in reckless disregard of the risk of terrorizing [the complainant], did threaten by word or conduct to cause bodily injury to said [the complainant] with the use of a dangerous instrument, to wit: a knife, thereby committing the offense of [t]error-istie [t]hreatening in the [f]irst [d]egree in violation of [§§ ]707-715 and 707-716(l)(d) of the [HRS].
During the trial, the prosecution adduced evidence of two separate acts of TT1 and argued that there were âtwo huge instancesâ of TT1âone âin the track with the knifeâ and the other âin the sand when [Mundon and the complainant we]re struggling over the knife.â Although the jury heard evidence regarding two âhuge instancesâ of TT1, the jury was never informed as to which act served as the basis for which count of TT1. Indeed, the record reflects that the prosecution never elected which specific act served as the basis for each individual count of TT1.
Because the jury: (1) was not given a specific unanimity instruction with respect to the offense of TT1; (2) was never informed which act committed by Mundon coincided with counts U and 26, respectively; and (3) convicted Mundon of one count of TT1 and acquitted him of the other, there is a âgenuine possibilityâ that different jurors concluded that Mundon committed different acts. In other words, it is possible that some jurors concluded that Mundon committed TT1 when he used the knife in the truck and others concluded that Mundon committed such offense when Mundon and the complainant were struggling with the knife in the
âDouble jeopardy protects individuals against: (1) a second prosecution for the same offense after acquittal; [and] (2) a second prosecution for the same offense after convietion[.]â State v. Higa, 79 Hawai'i 1, 5, 897 P.2d 928, 932 (1995). âThat a juryâs verdict of acquittal bars a subsequent retrial on those same offenses is âperhaps the most fundamental rule in the history of double jeopardy jurisprudence.â â Stow v. Murashige, 389 F.3d 880, 888 (9th Cir.2004) (citing United States v. Martin Linen Supply, Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)) (internal brackets omitted).
Assuming for purposes of this double jeopardy analysis that the TT1 conviction was based upon a unanimous agreement by the jury on the same culpable act, Mun-donâs count 4 conviction could have been based on his act of threatening the complainant in the truck with the knife or upon his act of struggling with the complainant in the sand with the knife. Similarly, the TT1 acquittal could have been based on either of Mundonâs acts. However, because each specific act was not assigned to a specific count, there is no way to know which specific act served as the basis for the juryâs conviction of Mundon on count J and which act served as the basis for Mundonâs acquittal on count 26. As a result, we conclude that, by remanding Mundonâs count 4 conviction for retrial, there is a distinct possibility that Mundon could be retried for an offense involving the same conduct for which he was acquitted. Such possibility would violate Mundonâs double jeopardy rights because âthe most fundamental rule in the history of double jeopardy,â Stow, 389 F.3d at 888, is that a defendant shall not be retried for the same offense. Consequently, we are compelled to reverse Mundonâs count 4 conviction for TT1.
B. Written Transcripts
Between July 14, 2006 and July 21, 2006, Mundon filed five motions seeking various relief from the trial court, one of which sought the written transcripts of the February 2004 preliminary hearing and the August 15, 2005 grand jury proceeding. However, the trial court rejected all of Mundonâs motions without prejudice because of a variety of non-conformities with the rules of court.
On October 24, 2006, Mundon re-filed his motion requesting written transcripts of the February 2004 preliminary hearing and the August 15,2005 grand jury proceeding [hereinafter, collectively, the written transcripts]. On October 26, 2006, a hearing was held, at which the following exchange took place between the trial court, Mundon, and Mundonâs standby counsel (Dennemeyer):
THE COURT: So, Mr. Mundon, weâ basically, we just have your motion for transcripts. And[,] as Ms. Dennemeyer well knows, all that it requires is that a form be filled out and all of the proceedings in this courtroom, or in any of the courtrooms in this courthouse, can be provided to you by way of CD. Okay.
So, Ms. Dennemeyer, you will assist Mr. Mundon then in filling out the appropriate forms[.]
[[Image here]]
MS. DENNEMEYER: I have another question on that matter. He was speaking of a DVD, I take it. I would like the [trial cjourt to ask him if he has the ability to play it.
THE COURT: These will be CDs, compact disks.
[Mundon]: I wonât be able to. I wonât be able to play it.
*356 THE COURT: You donât have the device to play it?
[Mundon]: No.
THE COURT: Okay. Ms. Dennemeyer.
MS. DENNEMEYER: It would sound like he would need a written transcript then.
[Mundon]: Yes, yes.
THE COURT: Well, the problem is we donât provide written transcripts in the ordinary course. There is a special procedure. Itâs going to take a lot of time. The [trial c]ourt really doesnât have any control over the time frame on that.
MS. DENNEMEYER: I understand that, Judge. I know how long it takes to get a transcript, but I donât know what the alternative would be.
THE COURT: Ms. Dennemeyer, given that you are standby counsel, do you have the means by which you can provide [sic] to Mr. Mundon so that he can review the CDs?
MS. DENNEMEYER: No. I donât have a laptop or anything like that.
THE COURT: All right. Then, logistically, that issue is going to have to be worked out between you and Mr. Mundon, Ms. Dennemeyer.
But the [trial cjourt is granting the request for copies of the CDs. This is to be treated no differently than any other request that comes into this [trial cjourt. And, again, you know, other than that, it is the logistics just need to be worked out.
MS. DENNEMEYER: Just so you know, Judge, the only alternative I can see is me requesting the transcripts, sending off, and thatâs going to be a delay. So if he really wants the transcripts, which he is certainly entitled to, I donât see how it can be done in time for the trial. Thatâs the first obstacle that I can foresee.
THE COURT: Thatâs correct. And we have a firm [date] set on this trial [ (December 11, 2006) ].
[[Image here]]
MS. DENNEMEYER: I will speak to Mr. Mundon and see how he wants to work it out. And I guess weâll get back to that.
(Emphases added.)
As previously stated, Dennemeyer filed a motion to withdraw as Mundonâs standby counsel on December 4, 2006. Therein, Den-nemeyer stated, inter alia, that, because Mundon had not been provided with the written transcripts, âthere is no way Mundon c[ould] fully prepare his defense at trial,â and, thus, she could not effectively assist him. On December 8, 2006, Mundon filed two additional motions for the written transcripts (an amended motion and a second motion).
Immediately prior to the commencement of trial on December 11, 2006, the trial court addressed Dennemeyerâs December 4, 2006 motion to withdraw as standby counsel. In support of her motion, Dennemeyer argued, inter alia, that
in his written motion, Mr. Mundon cited the court rule that provides the defendant gets written transcripts, written transcript, [g]rand [j]ury, preliminary hearing, thatâs what he cited. Thatâs what he asked for. The motion was never granted or denied. It was just kind of put aside. But itâs been a problem and Iâve been stating the problem from day one.
The trial court denied Dennemeyerâs motion and noted for the record that Mundon had submitted a request for transcripts six weeks prior to trial and observed that the trial court âdid, in response to the request by Mr. Mundon, make available the CDâs ... [w]hich [are] made available to anyone else who requests and who pays the fee.â Subsequent to the trial courtâs denial of her motion, Dennemeyer asked that Mundon be permitted to review the CDs of the transcripts at least once prior to trial. The trial court indicated that it would not further delay the trial and that Mundon and Dennem-eyer would have the opportunity to review the transcripts during the breaks.
On direct appeal, the ICA concluded that âMundon should have been provided the written transcripts that he requested,â SDO at 3 (citing, inter alia, Britt v. North Carolina, 404 U.S. 226, 228, 92 S.Ct. 431, 30
Mundon claims that he was entitled to a transcript of the preliminary hearing so he could cross-examine the complaining witness, who allegedly was unable to identify him at the preliminary hearing. However, Mundon has not substantiated this claim by including the transcript of the preliminary hearing in the record on appeal. See State v. Hoang, 93 Hawai'i 333, 336, 3 P.3d 499, 502 (2000) (holding that error will not be presumed âfrom a silent recordâ and that âwithout the relevant transcript, there is insufficient evidence to review the alleged error, and the appellant carries the burden of demonstrating the alleged error in the recordâ). Regarding Mundonâs request for a transcript of the grand-jury proceeding, the record indicates that all that transpired before the grand jury was the playing of the tape recording of the complaining witnessâs interview with a police officer, which recording had previously been provided to Mundon.
Id. at 3â4 (internal brackets omitted). On application, Mundon argues that the ICA erred in concluding that Mundon did not show that he was prejudiced by proceeding to trial without written transcripts because he alleged on direct appeal that (1) the complainant could not identify him at the February 2004 preliminary hearing and (2) he was otherwise deprived of his due process rights when the trial court provided him access only to âuseless compact disks.â
As indicated by the ICA, it is well-settled that a criminal defendant has a right to transcripts of prior proceedings. SDO at 3; see Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) (As a matter of equal protection, âthere can be no doubt that the [trial court] must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal.â). As such, we examine whether Mundon was required to show that he was prejudiced by proceeding to trial without the written transcripts. In that regard, Britt is instructive.
In Britt, the Supreme Court was faced with the issue whether an indigent defendant was entitled to written transcripts of prior proceedings despite not having shown a specific need for the transcript âfor an effective defense.â 404 U.S. at 227, 92 S.Ct. 431. In addressing the issue, the Court set forth the following two factors: â(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought[;] and (2) the availability of alternative devices that would fulfill the same functions as a transcript.â Id. Expounding on the value of transcripts to the defendant, the Britt Court concluded that:
Our eases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of a particular case ... [and], even in the absence of specific allegations!,] it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.
Inasmuch as the Supreme Court has previously recognized the innate value of transcripts for trial preparation and impeachment purposes and that a defendant need not show a need for the transcripts âtailored to the facts of a particular case,â we conclude that the written transcripts here had significant value to Mundon in preparing for trial, and his claim that he was prejudiced by proceeding without such transcripts was not âunsubstantiatedâ merely because he did not request that the transcripts of prior proceedings be included in the record on appeal or otherwise identify specific examples of prejudice. Next, we examine the second factor, i.e., whether there was an adequate alternative to the written transcripts available to Mundon, such as the electronic copies of the transcripts provided to him.
In the instant case, Mundon was provided with CDs of the relevant transcripts as an alternative to written transcripts because written transcripts were never provided âin the ordinary course.â However, Mundon was unable to review the electronic transcripts until the first day of trial because he did not have the requisite equipment available to him and neither did his standby counsel. Further, the trial court permitted Mundon to review the transcripts only during the breaks in trial. Because Mundon was essentially âprovided the transcript for the first time at trial,â the electronic transcripts were not an adequate alternative to the written transcripts, and the record does not reveal any other available alternative.
Based on the foregoing, we conclude that Mundon was not required to show that he was prejudiced by proceeding to trial without the written transcripts because (1) there is innate value to a criminal defendant in being able to review transcripts for trial preparation and impeachment purposes such that a defendant need not show a particularized need for such transcripts and, (2) under the circumstances, no adequate alternative to the written transcripts existed. Thus, we hold that the ICA erred in concluding that the trial courtâs failure to provide Mundon with written transcripts was harmless error.
C. Lack of Access to Trial Preparation Materials
Immediately prior to the commencement of trial on December 11, 2006, the trial court addressed several pre-trial issues, including motions from the prosecution. Mun-don informed the court that he did not have his trial preparation materials because he was transported from Halawa Correctional Facility on the island of 0âahu to Kaua'i Community Correctional Center (KCCC) four days prior to trial without any trial materials. Mundon indicated that, without his materials, he was unable to properly respond to the prosecutionâs motions in limine, stating:
Thatâs the only situation that Iâm bringing on the record to the [trial c]ourt. That surprising my flight here [sic] ... not letting me bring my paperwork here. I donât have the motions that [the] ... [prosecution] has. I had them all with me. I had all my motions and objections prepared; but, surprisingly, I wasâI mean itâs not the hardship of not being an attorney. Itâs the hardship of being put in a situation where I couldnât bring my stuff with me.
The trial court indicated that, although Mun-don did not have his trial materials, it would not further delay the trial inasmuch as the first day of trial would primarily be spent on jury selection and Mundonâs materials weiâe scheduled to arrive on the second day of trial. Additionally, the trial court stated that it had ârepeatedly cautioned [Mundon] that one of the problems of representing yourself when youâre incarcerated is that there may be issues that you may be facing that are beyond the scope of this [trial e]ourt.â The trial court then moved forward and heard arguments on the prosecutionâs motions in limine.
Due process is not a fixed concept requiring a specific procedural course in every situation. Rather, due process is flexible and calls for such procedural protections as the particular situation demands. The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner.
State v. Adam, 97 Hawai'i 475, 482, 40 P.3d 877, 884 (2002). The issue presented in the instant caseâwhether due process requires that a pro se criminal defendant be permitted to have access to his materials at the start of his trialâis an issue of first impression in this jurisdiction and, thus, we turn to cases outside of this jurisdiction for guidance.
The Supreme Court of California has previously held that a self-represented defendant has a âgeneral constitutional right to adequate time for the preparation of his defense.â People v. Maddox, 67 Cal.2d 647, 63 Cal.Rptr. 371, 433 P.2d 163, 168 (1967). Specifically, â[t]he denial of a proper request for a continuance to prepare a defense constitutes ... a denial of due process.â People v. Cruz, 83 Cal.App.3d 308, 325, 147 Cal.Rptr. 740 (1978). Further, a pro se defendant âis not entitled to any greater privileges or time than what is accorded attorneys; but neither is he entitled to any less.â People v. Sherrod, 59 Cal.App.4th 1168, 1175, 69 Cal.Rptr.2d 361 (1997) (citing Maddox, 63 Cal.Rptr. 371, 433 P.2d at 167) (emphasis in original). Additionally, â[w]hile it is true that a defendant! ] who chooses to conduct his defense [pro se ] does so subject to the disabilities normally attendant upon [his] status as a prisoner, a pro se defendant must be given a reasonable opportunity to prepare a defense.â Cruz, 83 Cal.App.3d at 324, 147 Cal.Rptr. 740 (emphases added).
Here, Mundon was unexpectedly transported from Halawa to KCCC four days pri- or to trial without being permitted to bring his materials. As a result, Mundon was deprived of critical preparation time immediately preceding trialâa time arguably most crucial to trial preparation. Moreover, Mun-don was further disadvantaged by the lack of access to his trial materials during the trial courtâs consideration of the prosecutionâs motions in limine because he was denied the âprivilegeâ of consulting his trial materials to respond to the motions and was forced to orally respond, relying on only his memory of the case. Nevertheless, the trial court refused to delay the trial, stating that it had ârepeatedly cautioned [Mundon] that one of the problems of representing yourself when youâre incarcerated is that there may be issues that you may be facing that are beyond the scope of this [trial c]ourt.â However, because Mundonâs unexpected transfer to KCCC was completely out of his control, his situation cannot be said to be a âdisabilit[y] normally attendant upon [his] status as a prisoner,â Cruz, 83 Cal.App.3d at 324, 147 Cal.Rptr. 740, nor one âbeyond the scopeâ of the trial court. Thus, in order to protect Mundonâs constitutional rights, the trial court could have continued the trial, conditioned upon Mundonâs agreement to waive his right to a speedy trial, especially given the fact that Mundonâs materials were scheduled to arrive the next day. Having failed to provide Mundon with such option and compelling him to proceed without his materials, we conclude that the trial court denied Mundon his constitutional due process right to adequately prepare his defense.
D. Remaining Contentions
1. Right to a Speedy Trial
On direct appeal, the ICA held that Mun-donâs right to a speedy trial was not violated
On application, Mundon contends that the ICA gravely erred in concluding that his constitutional right to a speedy trial was not violated because the trial court unreasonably rejected motions he attempted to file in July 2006, which ultimately caused the trial date to be continued until December 2006âa âdelay [that] should not be charged to [Mun-don].â More specifically, Mundon argues that the trial courtâs
[i]nsistenee upon a level of perfection in excess of court rules led to[,] at very least, the delay in trial from 7/31/06 to 12/11/06. This, along with the 150 [day] delay [after the indictment], far surpasses the 180 days within which trial needed to commence and this matter should have been dismissed.
Article I, section 14 of the Hawaii Constitution provides in pertinent part that, â[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trialt.]â See also U.S. Const, amend. VI. Such constitutional right to a speedy trial is âthe substantive right that HRPP Rule 48, through a procedural mechanism that is âseparate and distinctâ therefrom, seeks to protect.â State v. Jackson, 81 Hawai'i 39, 54, 912 P.2d 71, 86 (1996) (citing State v. Lau, 78 Hawai'i 54, 60, 890 P.2d 291, 297 (âNotwithstanding the fact that HRPP Rule 48 is âseparate and distinctâ from its constitutional counterparts, both provisions seek to ensure the speedy resolution of criminal prosecutions, particularly where a person may suffer a restraint on his or her liberty.â)) (other citation omitted).
As previously noted, HRPP Rule 48(b) provides in relevant part that
the trial court shall, on motion of the defendant, dismiss the charge[s against him], with or without prejudice in its discretion, if trial is not commenced within six months ... from the date of re-arrest or re-filing of the charge[s], in cases where an initial charge was dismissed upon motion of the defendant.
(Emphasis added.) HRPP Rule 48(c) provides in relevant part that âthe following periods shall be excluded in computing the time for trial commencement: ... periods that delay the commencement of trial and are caused by a continuance granted at the request or with the consent of the defendant or defendantâs counsel.â (Emphasis added.)
The record reflects that trial was originally set for February 6, 2006. On February 3, 2006, Mundon made an oral motion to continue the trial. At that time, the following exchange between Mundon and the trial court occurred:
THE COURT: So, Mr. Mundon, for the record, you are, at this time, waiving your [HRPP] Rule 48 [quoted supra note 16] [right]?
[Mundon]: Yes. Yes, I have to because, like I said, the time is too short and we wasted enough time earlier already[.]
THE COURT: And this additional time is needed by you to help prepare for the trial?
[Mundon]: Yes.
The trial court granted Mundonâs motion to continue over the objection of the prosecution and set a new trial date for June 5, 2006.
On March 17, 2006, the prosecution filed a motion to either continue or advance the trial date. Mundon agreed to advance the trial date, which the trial court subsequently reset for May 15, 2006. On May 15, 2006, Mundon agreed to continue the trial to July 31, 2006.
At the time it granted standby counsel Castilloâs motion to withdraw on July 6, 2006, the trial court encouraged Mundon to contin
On September 6, 2006, Mundon filed a motion to dismiss based on HRPP Rule 48, alleging, inter alia, that more than 180 days (six months) had passed since his August 15, 2005 indictment, and, thus, his case should be dismissed. At a hearing on September 28, 2006, the trial court orally denied Mundonâs motion.
[FOFs]
1. On August 15, 2005, [Mundon] was indicted in Cr. No. 05-1-0206.
2. [Mundon] was arraigned on January 12, 2006 and given a trial date of February 2, 2006.
3. On February 3, 2006, [Mundon] requested a continuance and the [trial c]ourt granted the continuance to June 5, 2006.
4. On April 3, 2006, the [prosecution] moved to continue or advance trial. The [trial c]ourt advanced the trial to May 15, 2006.
5. On May 15, 2006, [d]efense [c]ounsel indicated that he and [Mundon] agreed to continue the case, and the trial was set for July 31, 2006.
6. On July 24, 2006, [Mundon] stated that he was not prepared for trial on July 31, 2006 and requested additional time. The [trial c]ourt granted a continuance to December 11, 2006 with [Mundonjâs express approval.
7. [Mundon] filed his [m]otion to [dismiss on September 6, 2006.
8. Therefore, a total of 384 days have passed since the [g]rand Q]ury returned an indictment and the filing of [Mundonjâs [mjotion to [dismiss. However, 215 days are excludable under [HRPP] Rule 48(c). Therefore, there are [eleven] days left after the current trial date of December 11, 2006 for the [prosecution] to commence trial in this case.
[COLs]
1. [HRPP] Rule 48 provides, inter alia, that a defendant is to have his trial commenced within six months of the date of arrest, if bail is set, or from the filing of the charge, whichever is sooner.
2. However, HRPP Rule 48(c)[ (3) ] provides for excludable time periods, including:
(3) periods that delay the commencement of trial and are caused by a continuance granted at the request of or with the consent of the defendant or defendantâs counsel].]
(Emphases added.)
The trial court determinedâand Mundon does not disputeâthat the delays from February 6, 2006 to June 5, 2006 and May 15, 2006 to July 31, 2006 were based on either a request or agreement to continue the trial by Mundon. Thus, the sole issue here is whether Mundonâs request for continuance from July 31, 2006 to December 11, 2006 was caused by the trial courtâs rejection of Mun-donâs motions and, thus, should not be attributed to Mundon.
During the July 24, 2006 hearing, the trial court acknowledged its rejection of the five motions that Mundon attempted to file, but Mundon did not allege or argue at that time
It has been recognized that pro se litigants are allowed more latitude than litigants represented by counsel to correct defects in service of process and pleadings. See, e.g., Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, it is axiomatic that the parties bear the ultimate burden to comply with the rules of court when filing moving papers and, in any event, the trial court rejected Mundonâs motions without prejudice, giving Mundon the opportunity to re-file and âcorrect defects.â Thus, even if the trial courtâs rejection of Mundonâs non-conforming motions impaired his ability to proceed to trial on July 31, 2006, any resulting delay or request for continuance should be attributed to Mundon based upon his failure to comply with the rules of court. As such, the trial court properly excluded the time period between July 31, 2006 to December 11, 2006 from the six-month calculation set forth in HRPP Rule 48(b) and (c) and correctly found that, based on Mundonâs consent to or request for three continuances, âthere [were eleven] days left after ... December 11, 2006 for the [prosecution] to commence trial[.]â Inasmuch as trial commenced on December 11, 2006â within the six month time period as defined in HRPP Rule 48(b),âwe hold that Mundon was not deprived of his constitutional rights to due process or a speedy trial and, accordingly, the ICA did not err in making the same determination.
2. Right to Assistance of Counsel
During the prosecutionâs cross-examination of Mundon, Dennemeyer requested that she be permitted to approach Mundon and speak with him in order to clarify a âconfusingâ line of questioning. The trial court denied Den-nemeyerâs request until the next break in trial. When the trial court took a 15-minute recess, the prosecution requested that Den-nemeyer be prohibited from communicating with Mundon at any point during his cross-examination, including during any recesses that may be taken. The trial court granted the prosecutionâs request, stating:
Ms. Dennemeyer, as you well know, it is not proper for attorneys to be coaching witnesses in the middle of their testimony.
By the same manner, Mr. Mundon has made the decision to take the witness stand, and the prosecutor is correct. It would be improper for you to approach him or to speak with him in the middle of his testimony.
By the same token, Mr. Mundon, as I said, if you donât understand the question, then say so.
In response, Dennemeyer indicated to the trial court that â[t]hat was all I wanted to tell [Mundon], Thank you.â
On appeal, the ICA held that âMundon is judicially estopped from raising th[e] argument [that he was deprived of his constitutional right to counsel] since he clearly invoked his right to self-representation and received a discretionary appointment of standby counsel.â SDO at 5. Further, the ICA essentially held that the trial courtâs action in precluding Mundon from consulting his standby counsel was harmless inasmuch as âthe record establishes that the [trial] court effectively communicated the advice that standby counsel desired to impart to Mundonâthat [he] should ask for clarification if he did not understand a question posed to him[.]â Id.
On application, Mundon contends that the ICA erred in determining that he was not denied his constitutional right to counsel because â[c]urtailment of attorney-client consultation violates rights [to counsel] conferredâ under both the state and federal constitutions and â[t]he standby role of Mun-donâs counsel does not call for a different result.â Mundon further argues that, â[a]l-though the [trial] court communicated the warning counsel was planning to deliver, the
a. right to confer with counsel under the federal constitution
The United States Supreme Court has twice considered the issue whether the Sixth Amendmentâs right to counsel requires that a criminal defendant be permitted to confer with counsel during breaks in trial when he is testifying. First, in Geders v. U.S., 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 692 (1976), the trial court ordered the defendant not to consult with his counsel during an overnight recess taken while the defendant was testifying. Id. at 82-83, 96 S.Ct. 1330. Following his conviction, the defendant appealed, arguing that he had a right, under the Sixth Amendment, to confer with his counsel during an overnight recess. Id. at 86, 96 S.Ct. 1330. The United States Court of Appeals for the Fifth Circuit affirmed the defendantâs conviction, concluding that the defendant failed to show that he was prejudiced by his inability to consult with his attorney during the overnight recess. Id. The Supreme Court granted certiorari and concluded that â[o]ur cases recognize that the role of counsel is important precisely beeause[,] ordinarily[,] a defendant is ill-equipped to understand and deal with the trial process without a lawyerâs guidance,â id. at 88, 96 S.Ct. 1330, and â[t]he right to be heard would be, in many eases, of little avail if it did not comprehend the right to be heard by counsel.â Id. at 88-89, 96 S.Ct. 1330. Although the Court recognized the importance of ensuring the consistency of witnessesâ testimonies by preventing them from discussing such testimony, the Court distinguished a witness from a criminal defendant who testifies on his own behalf, stating that a defendant âlacks both the skill and knowledge adequately to prepare his defense, even though he (may) have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.â Id. at 89, 96 S.Ct. 1330 (quoting Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932)) (emphasis added). Consequently, the Court held that âan order preventing [the defendant] from consulting his counsel âabout anythingâ during a [seventeen]-hour overnight recess between his direct- and cross-examination impinged upon his right to assistance of counsel guaranteed by the Sixth Amendment.â Geders, 425 U.S. at 91, 96 S.Ct. 1330. Thus, the Supreme Court reversed the defendantâs conviction. Id. However, the Court limited the scope of its holding, stating that â[w]e need not reach, and we do not deal with limitations [on conferences with counsel] imposed in other circumstances.â Id.
Thereafter, in Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), the Supreme Court considered the very issue it reserved in Geders, that is, whether a criminal defendant has a constitutional right to confer with his counsel in âother circumstancesââspecifically, during a 15-minute recess taken during the defendantâs testimony. Id. at 274, 109 S.Ct. 594. A majority of the Court distinguished the long overnight break in Geders from the 15-minute recess in Perry, stating that:
Admittedly, the line between the facts of Geders and the facts of this case is a thin one. It is, however, a line of constitutional dimension.... The distinction rests ... on the fact that[,] when a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying. He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have testimony interrupted in order to give him the benefit of counselâs adrice.â[20 ]
Permitting a witness, including a criminal defendant, to consult with counsel after direct examination but before cross-examination grants the witness an opportunity to regroup and regain a poise and sense of strategy that the unaided witness would not possess. This is trae even if we assume no deceit on the part of the witness; it is simply an empirical predicate of our system of adversary rather than inquisitorial justice that cross-examination of a witness who is uncounseled between direct examination and cross-examination is more likely to lead to the discovery of truth than is cross-examination of a witness who is given time to pause and consult with his attorney. âOnce the defendant places himself at the very heart of the trial process, it only comports with basic fairness that the story presented on direct is measured for its accuracy and completeness by uninfluenced testimony on cross-examination."
Id. at 282-83, 109 S.Ct. 594 (citing United States v. DiLapi, 651 F.2d 140, 151 (2d. Cir.1981)) (Mishler, J., concurring), cert. denied, 455 U.S. 938, 102 S.Ct. 1428, 71 L.Ed.2d 648 (1982) (emphases added). The majority, quoting DiLapi, then explained the âvital roleâ of uninfluenced cross-examination, stating that:
The importance of cross-examination to the English judicial system, and its continuing importance since the inception of our judicial system in testing the facts offered by the defendant on direct, ... suggests that the right to assistance of counsel did not include the right to have counselâs advice on cross-examination. The [cjourt has consistently acknowledged the vital role of cross-examination in the search for truth. It has recognized that the defendantâs decision to take the stand, and to testify on his own behalf, places into question his credibility as a witness and that the prosecution has the right to test his credibility on cross-examination.
Id. at 283 n. 7, 109 S.Ct. 594 (citing DiLapi, 651 F.2d at 149-51) (emphasis in original). Thus, the majority concluded that,
just as a trial judge has the unquestioned power to refuse to declare a recess at the close of direct testimonyâor at any other point in the examination of a witnessâwe think the judge must also have the power to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the witness and the lawyer would relate to the ongoing testimony. As we have said, we do not believe the defendant has a constitutional right to discuss that testimony while it is in process.
Perry, 488 U.S. at 283-84, 109 S.Ct. 594. Ultimately, the majority held that âthe [fjed-eral [ejonstitution does not compel every trial judge to allow the defendant to consult with his lawyer while his testimony is in progressâ merely because the judge decides to call a recess during the trial for a few minutes. Perry, 488 U.S. at 284-85, 109 S.Ct. 594.
However, the dissent in Perry disagreed with the majorityâs distinction between a long overnight break in trial proceedings (as in Geders) and the 15-minute recess taken during a defendantâs testimony, opining that such distinction âhas no constitutional or logical grounding, and rests on a recondite understanding of the role of counsel in our adversary system.â Perry, 488 U.S. at 285, 109 S.Ct. 594 (Marshall, J., dissenting, joined by Brennan, J., and Blackmun, J.). The dissent asserts that â[cjentral to our Sixth Amendment doctrine is the understanding that legal representation for the defendant at every critical stage of the adversary process enhances the discovery of truth because it better enables the defendant to put the [prosecution] to its proof.â Id. at 291, 109 S.Ct. 594 (Marshall, J., dissenting, joined by
In the dissentâs view, â[t]he majorityâs fears about the deleterious effects of attorney-defendant contact during trial recesses are vastly overstated.â Id. at 292, 109 S.Ct. 594. Specifically, the dissent points out that âa few soothing words from counsel to the agitated or nervous defendant facing the awesome power of the [prosecution] might increase the likelihood that the defendant will state the truth on cross-examinationâ and that âto remind a defendant that certain cross-examination questions might implicate his right against self-incrimination or relate to previously excluded evidence, or to caution a defendant to mind his demeanor at all times, is merely to brace the defendant for the âlegal engineâ steaming his way.â Id. at 292-93, 109 S.Ct. 594 (emphasis in original) (citation omitted). In rebuttal to the majorityâs position that the accurate, complete, and uninfluenced testimony of the defendant would be impeded by allowing counsel and defendant to confer during a 15-minute recess, the dissent asserts that â[njowhere have we suggested that the Sixth Amendment right to counsel turns on what the defendant and his attorney discuss or at what point during a trial their discussion takes place.â Id. at 291, 109 S.Ct. 594 (emphasis added). Thus, contrary to the majorityâs holding, the dissent concluded that
the Sixth Amendment forbids âany order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial.â This view is hardly novel; on the contrary, every Court of Appeals to consider this issue since Geders ... has concluded that a bar on attorney-defendant contact, even during a brief recess, is impermissible if objected to by counsel. With very few exceptions, the state appellate courts that have addressed this issue have agreed.
Id. at 285-86, 109 S.Ct. 594 (bold emphasis added) (italicized emphases in original) (citations omitted). Further, the dissent disapproved of the majorityâs view that defendants should be afforded the same treatment as witnesses, stating that âthe Sixth Amendment accords defendants constitutional rights above and beyond those accorded witnesses generally.â Id. at 289, 109 S.Ct. 594. Ultimately, the dissent concluded that the majorityâs holding âisolat[ed] the defendant at a time when counselâs assistance is perhaps most needed.... The Constitution does not permit this new restriction on the Sixth Amendment right to counsel.â Id. at 298, 109 S.Ct. 594.
Here, Mundonâlike the defendant in Perryâargues that he had the right to confer with his counsel during the routine break taken during his testimony. Inasmuch as the facts of the instant ease are identical to those in Perry and distinguishable from Geders, it is clear thatâunder the reasoning of the Perry majorityâMundon did not have a Sixth Amendment right to consult with his counsel during the 15-minute recess taken during his cross-examination. However, article I, section 14 of the Hawai'i Constitution also gives a criminal defendant the right to the assistance of counsel, but the issue whether a criminal defendant has a state constitutional right to speak with counsel during a break in his testimony is an issue of first impression in this jurisdiction, which we now examine.
b. right to confer with counsel under Hawaiiâs Constitution
This court has long recognized that, âas the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai'i Constitution, we are free to give broader protection under the Hawai'i Constitution than that given by the federal [Constitution.â Arceo, 84 Hawai'i at 28, 928 P.2d at 870 (quoting State v. Wallace, 80 Hawai'i 382, 397 n. 14, 910 P.2d 695, 710 n. 14 (1996)) (other citation omitted). Further, this court has previously concluded that, âwhen the United States Supreme Courtâs interpretation of a provision present in both the United States and Hawai'i Constitutions
In our view, the holding of the Perry majority does not adequately protect a defendantâs right to counsel under article I, section 14 of the Hawaii Constitution for the following reasons. First, it is well-settled that â[t]he right of one charged with [a] crime to counsel [is] ... deemed fundamental and essential to [a] fair trial[.]â Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Second, â[a defendant] lacks both the skill and knowledge adequately to prepare his defense, even though he (may) have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.â Geders, 425 U.S. at 89, 96 S.Ct. 1330 (quoting Powell, 287 U.S. at 68-69, 53 S.Ct. 55) (emphasis added). Third, as aptly observed by the Perry dissent:
[W]hile a defendant is on the stand during direct examination, he may remember the name or address of a witness, or the location of physical evidence, which would be helpful to his defense. It would take mere seconds to convey this information to counsel. As a matter of sound trial strategy, defense counsel might believe that this witness or evidence would have the most impact if presented directly after the defendant concluded his testimony. But[,] under the majorityâs approach, defense counsel would not even learn about this witness or evidence until the defendant steps down from the stand. Alternatively, the defendant might be so discouraged by this testimony on direct examination as to conclude that he should attempt plea negotiations with the prosecution immediately, or accept an outstanding plea bargain offer. It need only take a second for him to convey this to his lawyer, particularly if they had previously discussed the advisability of pleading guilty. This opportunity might be forever lost, however, if a bar order issues and the prosecution conducts a successful cross-examination.
Perry, 488 U.S. at 294, 109 S.Ct. 594 (Marshall, J., dissenting, joined by Brennan, J., and Blackmun, J.). Andâas in this caseâ defendantâs counsel may wish to apprise the defendant of his right to ask the examining counsel or the trial court for clarification of a particular question or line of questioning. Finally, âlegal representation for the defendant at every critical stage of the adversary process enhances the discovery of truth because it better enables the defendant to put the [prosecution] to its proof.â Perry, 488 U.S. at 290, 109 S.Ct. 594 (Marshall, J., dissenting, joined by Brennan, J., and Black-mun, J.) (emphasis in original).
We are persuaded by the reasoning of the Perry dissent. More specifically, we agree with the Perry dissent that the majorityâs âconstitutionalâ distinction from Geders is untenable inasmuch as such distinction was
Moreover, we have previously emphasized the significance of a criminal defendantâs constitutional right to counsel, albeit in a different context. In State v. Smith, 68 Haw. 304, 712 P.2d 496 (1986), we re-affirmed the state constitutional standard for establishing ineffective assistance of trial counsel previously set forth in State v. Antone, 62 Haw. 346, 615 P.2d 101 (1980). Smith, 68 Haw. at 309, 712 P.2d at 500. Specifically, the Smith court confirmed that a defendant must demonstrate that there were âspecific errors or omissions ... reflecting counselâs lack of skill, judgment!,] or diligenceâ and that âthese errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.â Id. The Smith court observed that the federal standard for proving ineffective assistance of counsel was âunduly difficult for a [criminal] defendant to meetâ and declined to adopt such standard, holding instead that, âfor purposes of judging claims of inadequate representation brought under article I, section 14 of the Hawai'i Constitution, we shall continue to apply the standard enunciated in [Antone ].â Id. at 310 n. 7, 712 P.2d at 500 n. 7. Thereafter, in Briones v. State, 74 Haw. 442, 848 P.2d 966 (1993), we extended the standard for ineffective assistance of trial counsel to appellate counsel. Id. at 460-62, 848 P.2d at 975-76. Specifically, the Briones court stated that:
No Hawai'i Supreme Court case has defined the standard by which the effectiveness of appellate counsel is to be judged. Federal jurisdictions have applied the standards for evaluating trial counsel to*368 the actions of appellate counsel. We have declined, however, to adopt the fedeiâal standard for reviewing trial counselâs performance. [Smith, 68 Haw. at 310 n. 7, 712 P.2d at 500 n. 7].... [W]e believe it appropriate to extend our stricter review of counselâs performance to the appellate stage in order to more fully protect the defendantsâ rights[.]
Id. (footnote and some citations omitted).
Based on the foregoing, it is clear that the rule espoused by the majority in Perry does not adequately protect a criminal defendantâs right to assistance of counsel as guaranteed in our state constitution. Thus, we decline to follow the federal approach set forth by the Perry majority and, instead, adopt the dissentâs proposition that âany order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial,â violates a criminal defendantâs state constitutional right to counsel. Perry, 488 U.S. at 285, 109 S.Ct. 594 (Marshall, J., dissenting, joined by Brennan, J., and Blaekmun, J.) (emphasis in original). Accordingly, we hold that a criminal defendant has a constitutional right to confer with his or her counsel during a routine recess taken during trial proceedings, even when such recess is taken in the middle of the defendantâs testimony, except when a request for a non-routine recess for the purposes of conferring with counsel would, in the discretion of the trial court, interfere with the orderly and expeditious progress of the trial.
Consequently, we hold that the trial court erred when it ordered Mundon not to speak with his standby counsel during the 15-minute recess taken during his cross-examination. We recognize, however, that a constitutional error may be held harmless if âthe court ... [is] able to declare a belief that it was harmless beyond a reasonable doubt.â State v. Napeahi, 57 Haw. 365, 373, 556 P.2d 569, 574 (1976) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). âIn applying the harmless beyond a reasonable doubt standard^] the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction.â State v. Balisbisana, 83 Hawai'i 109, 114, 924 P.2d 1215, 1220 (1996) (quoting State v. Holbron, 80 Hawai'i 27, 32, 904 P.2d 912, 917 (1995)). Thus, if there was no reasonable possibility that the trial courtâs error contributed to his conviction, such error was harmless beyond a reasonable doubt.
As previously indicated, Dennemeyerâ Mundonâs standby counselârequested that she be permitted to approach Mundon and speak with him to clarify a âconfusingâ line of questioning during his cross-examination, but the trial court stated that she had to wait until a break in the proceedings to speak with Mundon. Thereafter, the trial court granted the prosecutionâs request to prohibit Dennemeyer from speaking with Mundon during any break taken during his testimony and told Mundon: âif you donât understand the question, then say so.â Immediately following the trial courtâs admonishment to Mundon, Dennemeyer specifically represent
Based on such evidence, we agree with the ICA that âthe trial court effectively communicated the advice that Mundonâs standby counsel wanted to impart to Mundon [during the 15-minute recess]âthat he should seek clarification if he did not understand a question posed to him.â SDO at 5. We acknowledge that Mundon argued on application and at oral argument that, â [although the [trial] court communicated the warning counsel was planning to deliver, the [trial courtâs] admonition did not address any matter or concern which [Mundon] may have wished to raise with his court-appointed counsel.â However, there was no evidence in the record or identified during oral argument before this court that Mundon did, in fact, have a âmatter or concernâ that he wanted to raise with Dennemeyer.
A review of the transcripts in this case indicates that, in general, Mundon, acting pro se, did not hesitate to assert himself and vocalized his position both before and during trial. Indeed, the record indicates that he frequently asked questions, lodged objections, presented arguments, and raised issues on his own behalf. Moreover, there is no evidence in the record that Mundon, during his direct or cross-examination, asked to speak with Dennemeyer, requested a recess for such purpose, or otherwise expressed a need to confer with his standby counsel. In fact, when the trial court granted the prosecutionâs request that Dennemeyer be prohibited from communicating with Mundon during the routine 15-minute recess, Mundon did not object, voice any concerns, or in any way indicate that he had any âmatter or concernâ that he wished to raise with her. Had Mundon felt the need to confer with Dennemeyer at that time, he seemingly would have objected or otherwise protested given his candid nature and assertive conduct throughout the proceedings. Absent any evidence in the record to support Mundonâs speculatory assertion that he âmay have wished to discuss [an issue] with his court-appointed counselâ during the recess, such assertion is insufficient, in this case, to show that the trial courtâs error contributed to Mundonâs ultimate conviction.
Finally, it is important to keep in mind that, as previously indicated, Mundon chose to represent himself and acted pro se for the duration of his trial. In such situations, the United States Supreme Court has stated that:
The right of self-representation is not a license to abuse the dignity of the courtroom .... Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of âeffective assistance of counsel.â
Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (emphasis added). Although a court may appoint standby counsel to assist a pro se defendant, such standby or advisory counsel âdo[es] not actively participate in the trial, but aet[s] in an advisory capacity.â State v. Hirano, 8 Haw.App. 330, 333 n. 5, 802 P.2d 482, 484 n. 5 (1990) (citing Faretta, 422 U.S. 806, 95 S.Ct. 2525).
Here, the record indicates that Mundon repeatedly stated that he wished to represent himself and ultimately refused the appointment of full-time counsel, despite frequent urging from the trial court. Thus, Mundon independently prepared for trial, formed his own trial strategy, and presented his own defense. During trial, Mundon conducted opening statements, questioned witnesses, raised objections, testified on his own behalf (in narrative form), and submitted a closing argumentâall with little assistance from Dennemeyer. Other than assisting Mundon with evidentiary objections and advocating for his right to have access to pre-trial transcripts and trial preparation materials, Den-nemeyer did not represent Mundon in the manner of a full-time attorney but, instead, acted only in an âadvisory capacity.â See Hirano, 8 Haw.App. at 333 n. 5, 802 P.2d at 484 n. 5. Given Mundonâs conscious election to proceed pro se, it cannot be said that a minimal 15-minute deprivation of Mundonâs access to his standby counsel during a trial that spanned six days contributed to his ultimate conviction. Moreover, it would be ab
In sum, the record indicates that: (1) the trial court communicated the advice that Mundonâs standby counsel wanted to impart to Mundon during the 15-minute recess; (2) there is no evidence that Mundon wished to speak with his standby counsel or requested a recess for such purpose at any point during his testimony; (3) Mundon did not object to the trial courtâs order preventing him from conferring with his standby counsel; and (4) Mundon chose to represent himself and acted pro se both before and during trial. In light of such specific facts and circumstances, we conclude, contrary to the dissent, that there is no âreasonable possibilityâ that the trial courtâs constitutional error contributed to Mundonâs conviction. Consequently, we hold that, although the trial courtâs order preventing Mundon from conferring with Dennemeyer was constitutional error, such error was harmless beyond a reasonable doubt.
The dissent disagrees that the trial courtâs error should be subject to the harmless beyond a reasonable doubt standard. Although not explicitly stated, the dissent seemingly takes the position that any violation of a defendantâs right to confer with counsel is per se harmful because â[t]he constitutional right to counsel guarantees defendants an opportunity for dialogue, and nowhere is it required that defendants provide affirmative evidence of their desire to avail themselves of this right.â Dissenting op. at 380-81, 219 P.3d at 1167-68. However, the dissentâs âbright lineâ rule that any deprivation of a defendantâs right to confer with counsel is harmful could create unreasonable and absurd results.
For example, in the instant case and as previously discussed, Dennemeyer requested that she be permitted to approach Mundon to clarify a confusing line of questions while he was testifying on cross-examination, which the trial court denied, indicating she should wait until the next routine break in trial. However, at the next routine recess, Den-nemeyerâs request to speak with Mundon was effectively mooted when the trial court advised Mundon, âif you donât understand the question, then say so[,]â which is the advice that Dennemeyer indicated she planned to impart. Had the trial court, at that point, inquired of Mundon whether he had any need to confer with Dennemeyer and Mundon had answered âno,â the dissentâs bright line approach would, nevertheless, render the trial courtâs bar of communication between Mundon and Dennemeyer during the 15-minute recess reversible error. To reverse a defendantâs conviction based on a violation of his right to confer with counsel, even where the defendant expressly states there is no need for such communication, would be absurd. Moreover, equally absurd is reversing Mundonâs conviction where he never asked to confer with Dennemeyer nor objected to or expressed any concerns regarding the courtâs admonition not to confer with counsel during the routine 15-minute recess.
Additionally, the dissentâs bright line approach extinguishes the discretion afforded to the trial court as indicated by our holding today and as stated by Justice Marshall in the Perry dissent, which the dissent here cites with approval. See dissenting op. at 373-74, 219 P.3d at 1160-61 (stating, âas Justice Marshall wrote[,] ... âthe Sixth Amendment forbids any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial â â (citing Perry, 488 U.S. at 285, 109 S.Ct. 594 (Marshall, J., dissenting) (emphasis in original omitted) (underscored emphasis added))). More specifically and as previously noted, we conclude today that, although a defendant has a constitutional right to confer with counsel during routine recesses, the trial court maintains its discretion in determining whether to permit non-routine recesses requested by the parties during the course of trial. However, under the dissentâs approach, a defendant who repeatedly asks to confer with his counsel while testifying and whose requests are denied by the trial court because, in the trial courtâs assessment, such non-routine recesses would interfere with the orderly and expeditious progress of the trial
Finally, the dissent contends that, in reaching our conclusion, we improperly âex-amin[e] the reasons for conferring with a client during a trial recess,â and, in so doing, âdirectâ that âthe nature of the information or communication ... must be disclosed in order to determine whether a trial courtâs decision to prohibit discussions between an attorney and the defendant was harmless or not.â Dissenting op. at 379, 219 P.3d at 1166. More specifically, the dissent argues that
the majority, by grounding its analysis in what [Mundonâs] counsel apparently wanted to say to [Mundon], incorrectly implies that it is appropriate to delve into the reasons for communications between an attorney and his or her client in order to gauge whether barring such communication during an ordinary recess was âharmless.â As explained above, this approach is in derogation of the right to counsel, the attorney-client privilege and the right against self-incrimination.
Id. at 381, 219 P.3d at 1168. Contrary to the dissentâs contention, we do not âgroundâ our analysis in what Mundonâs counsel apparently wanted to say to Mundon or otherwise speculate regarding the content or substance of what Mundon may have wanted to discuss with his standby counsel in reaching our ultimate conclusion that the trial courtâs error was harmless. To the contrary, we point to the facts that Mundon: (1) did not express any need to speak with Dennemeyer; (2) never requested a recess for the purpose of conferring with her; and (3) never objected to or expressed concerns when the trial court prohibited communication between himself and Dennemeyer during the 15-minute routine recess. Clearly, our conclusion is not based on what Dennemeyer apparently wanted to say to Mundon or even on what Mun-don may have wished to discuss with her but, instead, is based on the fact that Mundon never expressed a need to speak with Den-nemeyer at all. As a result, our holding does not, as the dissent contends, âdirect that the nature of the information must be disclosedâ or âimplyâ that it is appropriate to delve into the reasons for communication between an attorney and his or her client in order to determine whether the trial courtâs error was harmless. Moreover, our conclusion that the trial courtâs error was harmless beyond a reasonable doubt was not based exclusively on the lack of evidence that Mundon needed to speak with his counsel, ie., the lack of a specific request or objection. Indeed, as previously discussed, our holding is based on the additional facts that: (1) the trial court communicated the advice that Mundonâs standby counsel affirmatively indicated that she had intended to impart to Mundon during the 15-minute recess; and (2) Mundon chose to represent himself and acted pro se both before and during trial. Consequently, the dissentâs argument lacks merit.
3. Sentencing
On direct appeal, the ICA held that, â[i]n light of [this courtâs] decision in State v. Kahapea, 111 Hawai'i 267, 141 P.3d 440 (2006), Mundonâs claim that the circuit courtâs imposition of consecutive sentences violated his right to a jury trial is without merit.â SDO at 7 (citing Oregon v. Ice, â U.S. â, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009)). On application, Mundon contends that the ICA gravely erred in affirming the trial courtâs imposition of a consecutive term of imprisonment because such sentence exceeded the statutory maximum and, thus, required a finding by a jury that aggravating factors existed, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In his application, Mun-don acknowledges that the Supreme Courtâs holding in Ice rejects his position that the imposition of a consecutive sentence that exceeds the statutory maximum requires findings of fact by a jury. Nevertheless, Mun-don âmaintains that his position is correct,â and he âwishes to prserve [sic] the argument for further challenge.â
In Kahapea, the defendant appealed his sentence of, inter alia, five consecutive ten-year terms of imprisonment based on his conviction for five counts of theft in the first degree. Id. at 269, 141 P.3d at 442. On
As previously stated, the trial court sentenced Mundon to a term of imprisonment of twenty years on each of the kidnapping and attempted sex assault 1st offenses, five years on each of the TT1 and attempted assault 2d offenses, as well as a one year term of imprisonment for the assault 3d offense. The trial court ordered all terms to run concurrently with each other, except for the twenty-year sentence for attempted sex assault 1st, which the trial court ordered to run consecutively. As in Kahapea, none of Mundonâs individual prison terms exceeded the statutory maximum for each applicable offense.
IV. CONCLUSION
Based on the foregoing, we reverse Mun-donâs conviction for TT1, vacate Mundonâs remaining convictions, and remand the case for a new trial consistent with this opinion.
. The January 12, 2006 arraignment at which Mundon entered his plea of not guilty was presided over by the Honorable George M. Masuo-ka. All subsequent proceedings were presided over by the Honorable Kathleen N.A. Watanabe.
. HRS § 707-730(l)(a) provides that "[a] person commits the offense of sexual assault in the first degree if ... [t]he person knowingly subjects another person to an act of sexual penetration by strong compulsion."
. HRS § 705-500 provides in relevant part that "[a] person is guilty of an attempt to commit a crime if the person ... [ÂĄIntentionally engages in conduct which, under the circumstances as the 'person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime.â
. HRS § 707-715 provides in relevant part that:
A person commits the offense of terroristic threatening if the person threatens, by word or conduct, to cause bodily injury to another person or serious damage to property of another or to commit a felony:
(1) With the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person[.]
. HRS § 707-716(l)(d) provides that â[a] person commits the offense of terroristic threatening in the first degree in the first degree if the person commits terroristic threatening ... [w]ith the use of a dangerous instrument.â
. HRS § 707-720(1 )(d) provides that "[a] person commits the offense of kidnapping if the person intentionally or knowingly restrains another person with intent to ... [i]nflict bodily injury upon that person or subject that person to a sexual offense[.]â
. HRS § 707~712(l)(a) provides that â[a] person commits the offense of assault in the third degree if the person ... [ÂĄIntentionally, knowingly, or recklessly causes bodily injury to another person[.]â
. HRS § 707-711 provides in relevant part that "[a] person commits the offense of assault in the second degree if ... [t]he person intentionally or knowingly causes substantial bodily injury to another!.] â
.Mundon was originally chargedâvia complaintâon February 9, 2004. However, all the charges were dismissed without prejudice on August 24, 2004, pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 48(b) (2009), quoted infra, due to pre-trial delay. After the February 9, 2004 charges were dismissed, Mundon was released from custody. Thereafter, the prosecution moved for a revocation of probation (apparently based on a prior offense for which he was sentenced to probation) and, on January 14, 2005, Mundon was re-sentenced to five years of imprisonment. Thus, when he was indicted on August 15, 2005, he was incarcerated and remained in prison for the duration of the instant proceedings.
. As indicated infra, Mundon was charged with attempted assault 1st, in violation of HRS § 707-710, and the jury was instructed as to that offense as well as the lesser included offense of attempted assault 2d pursuant to HRS § 707-711. Mundon was ultimately convicted of the lesser included offense of attempted assault 2d.
. As previously noted, Mundon was originally charged with the aforementioned offenses in 2004, but these charges were dismissed without prejudice due to pre-trial delay. See supra note 9.
. Inasmuch as the incident in question began on the night of February 4, 2004 but went past midnight and into the next morning, many of the specific events about which the complainant testified took place on February 5, 2004.
. During a pre-trial hearing, "Titoâ was identified as Felix Guzman, who lived on Kaua'i. At trial, Mundon testified that he had seen Tito before, but stated that he "d[idnât] know him well.â
. On April 11, 2007, Mundon requested the appointment of appellate counsel. On April 24 and 26, respectively, the trial court granted Mun-don's request and appointed Stuart Fujioka to represent Mundon on appeal.
. HRPP Rule 48 provides in relevant part that "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 ... from the date of re-arrest or refiling of the charge, in cases where an initial charge was dismissed upon motion of the defendant[.]â
. Specifically, the twenty-one counts of sex assault 3d were based on either Mundonâs touching of the complainantâs breasts, kissing of the complainantâs breasts, or Mundonâs touching of the complainantâs genitals.
. We note that, in addressing Mundonâs argument that the trial court improperly refused to continue the trial based on Mundonâs lack of access to his trial materials, the ICA applied an abuse of discretion standard of review, stating "we cannot conclude that the [trial] court abused its discretion in refusing to continue the commencement of trial.â SDO at 4 (emphasis added). However, Mundon contended before the ICAâand on applicationâthat the trial court denied him his constitutional right to due process when it forced him to begin trial after four days
We recognize that Mundon does not contend that the ICA erred in applying the abuse of discretion standard of review; however, it was plain error for the ICA to apply such standard inasmuch as Mundon's argument clearly raises a constitutional question of law that requires de novo review. We, therefore, address Mundonâs argument pursuant to the de novo standard of review.
. The record does not indicate whether the continuance was based on a request by the prosecution or Mundon, or a necessity of the trial court.
. During the hearing, Mundon again waived his right to counsel and expressed his intent to represent himself, but also requested the appointment of standby counsel. As previously indicated, the trial court granted Mundonâs request and subsequently issued an order appointing Den-nemeyer to act as Mundonâs standby counsel.
. More specifically, the Court stated that:
The interruption in Geders was of a different character because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters that go beyond the content of the defendantâs own testimonyâmatters that the defendant does have a constitutional right to discuss with his lawyers, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain. It is the defendantâs right to unrestricted access to his lawyer*364 for advice on a variety of trial-related matters that is controlling in the context of a long recess. The fact that such discussion will inevitably include some consideration of the defendantâs ongoing testimony does not compromise that basic right. But in a short recess in which it is appropriate to presume that nothing but the testimony will be discussed, the testifying defendant does not have a constitutional right to advice.
Id. at 284, 109 S.Ct. 594 (citation omitted).
. The Perry majority recognized the possibility that a defendantâs rights may be expanded under other circumstances, stating that
[o]ur conclusion does not mean that trial judges must forbid consultation between a defendant and his counsel during such brief recesses. As a matter of discretion in individual cases, or of practice for individual trial judges, or indeed as a matter of law in some [s]tates, it may well be appropriate to permit such consultation.
Id. at 284, 109 S.Ct. 594 (footnote omitted).
. Similarly, the Perry dissent observed:
The majority assumes that it is possible to distinguish discussions regarding trial strategy from discussions regarding testimony. I am not so sure. Assume, for example, that counselâs direct examination of the defendant inadvertently elicits damaging information that can be effectively neutralized on redirect only if the defendant has the opportunity to explain his direct testimony to counsel. If a recess were called, the ensuing attorney-defendant discussion would seem to be as much about trial strategy as about upcoming testimony. Without a chance to speak with the defendant, counsel will be hampered in knowing whether redirect is even advisable. The majority's failure to spell out the differenceâif there is oneâ between testimonial and non[-Jtestimonial discussions may well have a chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating a court order barring recess discussions of testimonial matters.
Perry, 488 U.S. at 295 n. 8, 109 S.Ct. 594 (emphasis added) (citation, internal quotation marks, and brackets omitted).
. Indeed, we note that the trial court, as discussed infra, retains its discretion in determining whether to take non-routine recesses, i.e., those requested by the parties and taken outside the normal course of the proceedings, and may deny a defendantâs request for such a recess, even if specifically sought for the purpose of conferring with counsel, if the trial court determines that a non-routine recess would interfere with the orderly and expeditious progress of the trial.
. The statutory maximum for both kidnapping and attempted sex assault 1st, which are classified as class A felonies, is twenty years imprisonment. See HRS § 706-659 (1993). Further, the statutory maximum for TT1 and attempted assault second (both class C felonies) is five years and the statutory maximum for assault 3d (a misdemeanor) is one year. See HRS §§ 706-660 and 706-663 (1993).
. We note that neither party challenged in their moving papers before this court or during oral argument the ICA's holding that Mundonâs convictions for kidnapping, TO, attempted assault 2d, and assault 3d may have been improperly based on the same conduct, thereby requiring a merger instruction to the jury. SDO at 7. In light of our reversal of Mundonâs TT1 conviction, the option profferred by the ICA to (1) either (a) dismiss the TO or the kidnapping offense, or (b) retry Mundon on both counts, with an appropriate merger instruction given to the jury is moot. With respect to the offenses of attempted assault 1st and assault 3d, we agree with the ICA that a merger instruction was warranted. Consequently, on remand, an appropriate merger instruction should be given.