State v. Dela Cruz

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-DEC-2025
07:54 AM
Dkt. 104 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
KAI DELA CRUZ, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Kai Dela Cruz appeals from the Judgment of Conviction
Sentence entered by the Circuit Court of the First Circuit on
July 16, 2024.1 We vacate and remand for a new trial.
A jury found Dela Cruz guilty of Murder in the Second
Degree. He was sentenced to life in prison with the possibility
of parole. He appeals his conviction. He contends the trial
court erred by denying his motion to suppress his recorded
confession; failing to obtain a valid waiver of his right to
testify; and failing to instruct the jury on Extreme Mental or
Emotional Disturbance Manslaughter. He also alleges
prosecutorial misconduct.
The Tachibana issue is dispositive. It presents a
question of law reviewed under the right/wrong standard. State

1
The Honorable Shanlyn A.S. Park presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

v. Martin, 146 Hawai#i 365, 377, 463 P.3d 1022, 1034 (2020).
"Courts look to the totality of the facts and circumstances to
determine whether a waiver of the right to testify was
voluntarily and intelligently made. Id. at 379, 463 P.3d at
1036.
"[W]hen a defendant in a criminal case indicates an
intention not to testify, the trial court must advise the
defendant of the right to testify and must obtain an on-the-
record waiver of the right." Martin, 146 Hawai#i at 378, 463
P.3d at 1035 (citing Tachibana v. State, 79 Hawai#i 226, 236 n.7,
900 P.2d 1293, 1303 n.7 (1995)). "[A]s part of this inquiry, the
trial court should elicit responses as to whether . . . anyone is
forcing the defendant not to testify, and whether the decision to
not testify is the defendant's." Martin, 146 Hawai#i at 378–79,
463 P.3d at 1035–36.
Dela Cruz contends the trial court "failed to confirm
that no one was forcing [him] not to testify" and "failed to
confirm that the decision not to testify was [his] own decision."
This was the exchange between Dela Cruz and the trial court:

THE COURT: . . . . Mr. Dela Cruz, as I've discussed
with you at the beginning of this trial, you have a
constitutional right to testify in your own defense. Do you
understand what that means?

THE DEFENDANT: Yes, Your Honor.
THE COURT: Although you should consult with your
lawyer regarding the decision to testify, it is your
decision, and no one can prevent you from testifying should
you choose to do so. Do you understand what that means?
THE DEFENDANT: Yes.
THE COURT: If you decide to testify, the prosecutor
will be allowed to cross-examine you. You've seen the way
cross-examination works throughout the course of this trial.
So do you understand what that means?
THE DEFENDANT: Yes.

THE COURT: You also have a constitutional right to
not testify and to remain silent. Do you understand what
that means?

THE DEFENDANT: Yes.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

THE COURT: If you choose not to testify, the jury
will be instructed by me that it cannot hold your silence
against you in deciding your case. Do you understand what
that means?
THE DEFENDANT: Yes.

THE COURT: Have you had an opportunity to discuss
with your lawyer about your right to testify and your right
not to testify?
THE DEFENDANT: One second.

(Counsel and client confer.)
[COUNSEL]: Could I have a sec with him, Judge?

THE COURT: Yes, of course.
(Counsel and client confer.)

THE COURT: All right. Mr. Dela Cruz, do you need
additional time to consult with your lawyer about your
decision on whether you want to --
THE DEFENDANT: No, ma'am.

THE COURT: -- testify or whether you want to remain
silent?

THE DEFENDANT: (Shakes head.)

THE COURT: Have you had sufficient time to discuss
this issue with your attorney?

THE DEFENDANT: Yes.

THE COURT: And have -- and so what is your decision
about whether you want to testify or whether you wish to
remain silent?

THE DEFENDANT: Remain silent.

The trial court did not elicit responses from Dela Cruz
about whether anyone was forcing him not to testify, or whether
the decision to not testify was his own. Nor were the trial
court's questions "tantamount to eliciting that information" as
in Martin, 146 Hawai#i at 380, 463 P.3d at 1037.2
"Once a violation of the constitutional right to
testify is established, the conviction must be vacated unless the

2
The supreme court footnoted, "Trial judges should, however,
include this specific question [("Is anyone forcing you not to testify?")] in
their colloquies." Martin, 146 Hawai#i at 380 n.10, 463 P.3d at 1037 n.10.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

State can prove the violation was harmless beyond a reasonable
doubt." Tachibana, 79 Hawai#i at 240, 900 P.2d at 1307. The
record does not reflect what Dela Cruz would have said if he
testified. We cannot conclude the error was harmless beyond a
reasonable doubt.
Dela Cruz does not contend the trial evidence was
insufficient to support his conviction. The Judgment of
Conviction Sentence is vacated, and this case is remanded for a
new trial.
DATED: Honolulu, Hawai#i, December 8, 2025.

On the briefs:
/s/ Katherine G. Leonard
Henry P. Ting, Presiding Judge
Deputy Public Defender,
State of Hawai#i, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Stephen K. Tsushima, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

4

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-DEC-2025
07:54 AM
Dkt. 104 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
KAI DELA CRUZ, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Kai Dela Cruz appeals from the Judgment of Conviction
Sentence entered by the Circuit Court of the First Circuit on
July 16, 2024.1 We vacate and remand for a new trial.
A jury found Dela Cruz guilty of Murder in the Second
Degree. He was sentenced to life in prison with the possibility
of parole. He appeals his conviction. He contends the trial
court erred by denying his motion to suppress his recorded
confession; failing to obtain a valid waiver of his right to
testify; and failing to instruct the jury on Extreme Mental or
Emotional Disturbance Manslaughter. He also alleges
prosecutorial misconduct.
The Tachibana issue is dispositive. It presents a
question of law reviewed under the right/wrong standard. State

1
The Honorable Shanlyn A.S. Park presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

v. Martin, 146 Hawai#i 365, 377, 463 P.3d 1022, 1034 (2020).
"Courts look to the totality of the facts and circumstances to
determine whether a waiver of the right to testify was
voluntarily and intelligently made. Id. at 379, 463 P.3d at
1036.
"[W]hen a defendant in a criminal case indicates an
intention not to testify, the trial court must advise the
defendant of the right to testify and must obtain an on-the-
record waiver of the right." Martin, 146 Hawai#i at 378, 463
P.3d at 1035 (citing Tachibana v. State, 79 Hawai#i 226, 236 n.7,
900 P.2d 1293, 1303 n.7 (1995)). "[A]s part of this inquiry, the
trial court should elicit responses as to whether . . . anyone is
forcing the defendant not to testify, and whether the decision to
not testify is the defendant's." Martin, 146 Hawai#i at 378–79,
463 P.3d at 1035–36.
Dela Cruz contends the trial court "failed to confirm
that no one was forcing [him] not to testify" and "failed to
confirm that the decision not to testify was [his] own decision."
This was the exchange between Dela Cruz and the trial court:

THE COURT: . . . . Mr. Dela Cruz, as I've discussed
with you at the beginning of this trial, you have a
constitutional right to testify in your own defense. Do you
understand what that means?

THE DEFENDANT: Yes, Your Honor.
THE COURT: Although you should consult with your
lawyer regarding the decision to testify, it is your
decision, and no one can prevent you from testifying should
you choose to do so. Do you understand what that means?
THE DEFENDANT: Yes.
THE COURT: If you decide to testify, the prosecutor
will be allowed to cross-examine you. You've seen the way
cross-examination works throughout the course of this trial.
So do you understand what that means?
THE DEFENDANT: Yes.

THE COURT: You also have a constitutional right to
not testify and to remain silent. Do you understand what
that means?

THE DEFENDANT: Yes.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

THE COURT: If you choose not to testify, the jury
will be instructed by me that it cannot hold your silence
against you in deciding your case. Do you understand what
that means?
THE DEFENDANT: Yes.

THE COURT: Have you had an opportunity to discuss
with your lawyer about your right to testify and your right
not to testify?
THE DEFENDANT: One second.

(Counsel and client confer.)
[COUNSEL]: Could I have a sec with him, Judge?

THE COURT: Yes, of course.
(Counsel and client confer.)

THE COURT: All right. Mr. Dela Cruz, do you need
additional time to consult with your lawyer about your
decision on whether you want to --
THE DEFENDANT: No, ma'am.

THE COURT: -- testify or whether you want to remain
silent?

THE DEFENDANT: (Shakes head.)

THE COURT: Have you had sufficient time to discuss
this issue with your attorney?

THE DEFENDANT: Yes.

THE COURT: And have -- and so what is your decision
about whether you want to testify or whether you wish to
remain silent?

THE DEFENDANT: Remain silent.

The trial court did not elicit responses from Dela Cruz
about whether anyone was forcing him not to testify, or whether
the decision to not testify was his own. Nor were the trial
court's questions "tantamount to eliciting that information" as
in Martin, 146 Hawai#i at 380, 463 P.3d at 1037.2
"Once a violation of the constitutional right to
testify is established, the conviction must be vacated unless the

2
The supreme court footnoted, "Trial judges should, however,
include this specific question [("Is anyone forcing you not to testify?")] in
their colloquies." Martin, 146 Hawai#i at 380 n.10, 463 P.3d at 1037 n.10.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

State can prove the violation was harmless beyond a reasonable
doubt." Tachibana, 79 Hawai#i at 240, 900 P.2d at 1307. The
record does not reflect what Dela Cruz would have said if he
testified. We cannot conclude the error was harmless beyond a
reasonable doubt.
Dela Cruz does not contend the trial evidence was
insufficient to support his conviction. The Judgment of
Conviction Sentence is vacated, and this case is remanded for a
new trial.
DATED: Honolulu, Hawai#i, December 8, 2025.

On the briefs:
/s/ Katherine G. Leonard
Henry P. Ting, Presiding Judge
Deputy Public Defender,
State of Hawai#i, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Stephen K. Tsushima, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

4