State v. Chong Hung Han
130 Haw. 83
| Haw. | 2013Background
- Petitioner Chong Hung Han was charged with Abuse of Family and Household Members (HRS § 709-906) and tried by jury in 2011 with a Korean-language interpreter available.
- Two Tachibana-style advisements occurred: a pre-trial colloquy informing rights, and a post-trial colloquy when the defense rested; the latter was conducted with an interpreter.
- Petitioner did not testify; the court conducted a Tachibana-like exchange at trial’s end, asking questions through an interpreter to confirm understanding and voluntary waiver.
- Petitioner appealed, arguing the Tachibana colloquy was deficient, particularly given the language barrier and reliance on an interpreter.
- The Intermediate Court of Appeals affirmed, but this Court vacates and remands, holding the Tachibana/Ted Lewis requirements were not satisfied and the waiver was not knowingly, intelligently, and voluntarily made.
- The court concluded the language barrier constituted a salient fact requiring a more robust on-the-record colloquy to protect the right to testify.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Tachibana ultimate colloquy adequate? | Han | Han | No valid on‑the‑record waiver established |
| Did language barrier constitute a salient fact requiring enhanced inquiry? | Han | Han | Yes, language barrier necessitated fuller colloquy |
| Was the Tachibana/Lewis pre-trial colloquy adequate given an interpreter? | Han | Han | Not adequately established understanding |
| Was the error harmless beyond a reasonable doubt? | State | Han | No; error not harmless |
| What remedy should the court order on remand? | State | Han | Vacate judgments and remand for proper proceedings |
Key Cases Cited
- State v. Tachibana, 79 Haw. 226 (1995) (establishes on-the-record Tachibana colloquy requirements)
- State v. Lewis, 94 Haw. 292 (2000) (mandates pre-trial right-to-testify advisement; totality approach)
- State v. Christian, 88 Haw. 407 (1998) (context for knowing waiver; posts about dialogue with defendant)
- State v. Merino, 81 Haw. 198 (1996) (totality of facts and circumstances framework)
- State v. Silva, 78 Haw. 115 (1995) (right to testify tied to due process protections)
- State v. Friedman, 93 Haw. 63 (2000) (salient facts in evaluating waiver of rights; language/mental health notes)