CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000814; CR. NO. 10-1-1098)
Evan S. Tokunaga, for petitioner
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
We hold that under State v. Tachibana, 79 Hawai'i 226, 900 P.2d 1293 (1995) and State v. Lewis, 94 Hawai'i 292, 12 P.3d 1233 (2000), a colloquy between the judge and a defendant involves a verbal exchange in which the judge ascertains the defendant's understanding of the defendant's rights. In this case, the advisement by the Family Court of the First Circuit (the court) did not adequately ascertain whether Petitioner/Defendant-Appellant Chong Hung Han (Petitioner) understood his Constitutional right to testify or not to testify. Further, Petitioner's need for an interpreter during the trial was a "salient fact" heightening the necessity for the court to insure that Petitioner understood the rights that he waived. See State v. Barros, 105 Hawai'i 160, 170, 95 P.3d 14, 24 (App. 2004). Under the circumstances, the error in this case was not harmless beyond a reasonable doubt. Accordingly, we vacate the October 30, 2012 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its September 12, 2012 Summary Disposition Order (2012), vacate the court's October 13, 2011 Amended Judgment of Conviction and Sentence, and remand the case to the court.
On January 26, 2010, Petitioner was charged, via complaint, with the offense of Abuse of Family and Household Members, HRS § 709-906 (Supp. 2006) The Complaint alleged that on January 17, 2010, Petitioner "did intentionally, knowingly, or recklessly physically abuse [his wife, ] Kyung Soon Jung [(complainant)], a family or household member[.]" A jury trial was held over the course of three days, from January 19 to January 21, 2011. Prior to jury selection and trial, a Korean language interpreter was sworn in before the court to translate the proceedings for Petitioner.
On the first day of trial, the following exchange took place between the court and Petitioner:
THE COURT: Counsel, before we recess for the day, the court would like to, at this point, advise the defendant of -- of [State vT] Tachibana[, 79 Hawai'i 226, 900 P.2d 1293 (1995), ] before we~ - before we recess for the day, okay.
All right, [Petitioner], good afternoon -- good afternoon again. The court, at this point, will take this opportunity to advise you of your rights.
Okay. All right. [Petitioner], you have a constitutional right to testify in your own defense. You should consult with your lawyer regarding the decision to testify. However, it is ultimately your decision, and no one can prevent you from testifying should you choose to do so. If you decide to testify, the prosecutor will be allowed to cross-examine you based on your direct testimony.
You also have a constitutional right not to testify and to remain silent. If you choose not to testify, the jury will be instructed that it cannot hold your silence against you in deciding your case.
If you have not testified by the end of the trial, I will question you to ensure that it was your decision not to testify.
Do you have any questions about what I just explained? [PETITIONER]: (No audible response) THE COURT: Okay, thank you very much.
On the final day of trial, January 21, 2011, Petitioner informed the court that the "[d]efense is going to rest." The following exchange immediately took place:
THE COURT: Oh, okay. All right. And so let me take this opportunity, then, to question your client again and --before we bring in our jury.
All right, [Petitioner], good morning. Your attorney just informed the court that you are not going to testify on your behalf.
[PETITIONER]: (Through the interpreter) Yes.
THE COURT: Okay. All right, remember in the beginning --beginning of our trial, this court advised you of your rights. And that is, one, you have the right to testify on your behalf, and that -- that decision to testify -- whether to testify or not is your decision alone and that nobody can force you to testify. And then, of course, second, you also have the constitutional right to remain silent and that if you decide to exercise your right to remain silent, the jury will be instruct -- will be instructed not to hold that against you.
Okay. And -- and I trust that you have -- now that the State has finished its case and you had a chance to discuss what happened with your attorney, and based on that discussion, you have decided that you are not going to testify on your behalf. Is anybody threatening or forcing you this morning not to testify?
[PETITIONER]: (Through the interpreter) No.
THE COURT: The decision not to testify is yours and yours alone after you have discussed the matter with your attorney.
[PETITIONER]: (Through the interpreter) Yes.
The trial concluded, and the jury found Petitioner guilty as charged. Petitioner was sentenced to two years probation, fined, and sentenced to serve two days in jail.
Petitioner appealed to the ICA. On appeal, Petitioner claimed that his right to testify, as set forth in the Hawai'i Constitution and the United States Constitution, was violated because the court's Tachibana colloquy was deficient. (Citing Tachibana, 79 Hawai'i 226, 900 P.2d 1293.) Petitioner argued that the court "failed to adequately ascertain whether [Petitioner] understood his Tachibana rights." According to Petitioner, the colloquy "significantly differed" from the colloquy cited "with approval" by this court in State v. Christian, 88 Hawai'i 407, 967, P.2d 238 (1998), in that the court did not engage in a dialogue with Petitioner after each segment or ensure that Petitioner understood his rights. "Thus, " Petitioner asserted, "[his] waiver of his right to testify was not knowing and voluntary."
Petitioner further argued in his Opening Brief that the court's error was not harmless. He cited to State v. Hoang, 94 Hawai'i 271, 12 P.3d 371 (App. 2000), for the proposition that "[i]n general, it is inherently difficult, if not impossible, to define what effect a violation of the defendant's constitutional right to testify had on the outcome of any particular case." Id. at 279, 12 P.3d at 37. As applied to the instant case, Petitioner alleged that the error was not harmless beyond a reasonable doubt, because, "[i]f [Petitioner] had testified, the decisive issue in the instant case would have been credibility, as his version as to what occurred on the night in question would have conflicted with [his wife's] version." "Hence, " Petitioner concluded, "[Petitioner's] conviction and sentence must be vacated." (Citing Hoang, 94 Hawai'i at 279-80, 12 P.3d at 379-80; Tachibana, 79 Hawai'i at 240, 900 P.2d at 1307.)
In its Answering Brief to the ICA, Respondent maintained that (1) the "court conducted a colloquy with [Petitioner] both before trial commenced and before the defense rested at trial, which is plainly consistent with Tachibana , " (citing Tachibana, 79 Hawai'i at 240, 900 P.2d at 1307), (2) whether the "right to testify is knowingly, intelligently, and voluntarily waived requires looking at , the totality of [the] facts and circumstances of each particular case[, ]'" (citing Christian, 88 Hawai'i at 420, 967 P.2d at 253 (quoting State v. Merino, 81 Hawai'i 198, 221, 915 P.2d 672, 695 (1996)(internal quotation marks omitted)), and that (3) "Christian did not hold that any portion ...