Tachibana Colloquy has to be an Actual Colloquy
State v. Han (HSC June 19, 2013)
Background. Chong Hung Han was charged with one count of abuse of a family or household member. HRS § 709-906. On the first day of trial, the court held the following exchange with Han without the help of an interpreter:
[Y]ou 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?
[Han]: (No audible response)
THE COURT: Okay, thank you very much.
At the end of trial, Han rested. The family court had this exchange with Han, but this time, he had an interpreter:
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, [Han], good morning. Your attorney just informed the court that you are not going to testify on your behalf.
[Han]: (Through an 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?
[Han]: (Through an interpreter) No.
THE COURT: The decision not to testify is yours and yours alone after you have discussed the matter with your attorney.
[Han]: (Through an interpreter) Yes.
Han never testified, he was found guilty, and the court sentenced him to probation with two days jail. Han appealed. The ICA affirmed. Han petitioned for certiorari.
Know your Rights . . . “A defendant’s right to testify in his or her own defense is guaranteed by the constitutions of the United States and Hawaii and by a Hawaii Statute.” Tachibana v. State, 79 Hawaii 226, 231, 900 P.2d 1293, 1298 (1995). To protect that right, “trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify.” Id. at 1303. Specifically, the court must inform the “(1) that he or she has a right to testify, (2) that if he or she wants to testify that no one can prevent him or her from doing so, and (3) that if he or she testifies the prosecution will be allowed to cross examine him or her. In connection with the privilege against self-incrimination, the defendant should also be advised that (4) he or she has a right not to testify and (5) that if he or she does not testify then the jury can be instructed about that right.” Id. at 236 n. 7, 900 P.2d at 1303, n. 7. The advisement should also be given at the start of the trial. State v. Lewis, 94 Hawaii 292, 297, 12 P.3d 1233, 1238 (2000).
No Waiver, Know Nothing. Han argued that there was insufficient evidence that he had waived his right to testify at trial. Waiver of a fundamental right must be done voluntarily and intelligently and “this court will look to the totality of the facts and circumstances of each particular case.” State v. Friedman, 93 Hawaii 63, 66-67, 996 P.2d 268, 273-74 (2000). The HSC agreed with Han that he did not knowingly, intelligently, and voluntarily waived his right to testify.
“The Ultimate Colloquy.” “[I]n order to protect the right to testify under the Hawaii Constitution, trial courts must advise criminal defendants of their right to testify and must obtain a waiver of that right in every case in which the defendant does testify.” Tachibana, 79 Hawaii at 236, 900 P.2d at 1303. This has to be a colloquy, “an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the judge ascertains the defendant’s understanding of the proceedings and of the defendant’s rights.” Black’s Law Dictionary, 300 (9th ed. 2009).
The HSC held that this case did not have a true colloquy. There was no real discussion or exchange to determine and ascertain Han’s understanding of his rights. The trial court simply announced that Han had a right to remain silent and if he exercised that right, the jury will be instructed not to hold the silence against him. The HSC noted that the trial court should have inquired whether Han knew what that meant and whether he understood those principles.
The trial court then stated that since Han spoke to his attorney, he had decided not to testify. The trial court did engage with Han to ensure that that was his decision. These failings rendered the colloquy defective.
Just the Salient Facts, Ma’am. The HSC turned to federal cases that have examined the language barrier in the context of waiving constitutional rights. “[L]anguage barrier, like  mental illness, is a salient fact that was known to the district court and put the court on notice that [the defendant’s] waiver might be less than knowing and intelligent.” United States v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997). The HSC noted that language barriers and mental illness are “salient facts” that underscored the importance of conducting a true colloquy before the defendant waives his or her rights.
Dodging the First Challenge. There were two advisements in this case. The first took place before trial began and the second at the close of the defendant’s case. Han argued that during the first advisement, Han provided no “audible indication” that he understood his rights. Because the HSC found error in the second advisement, it dodged Han’s challenge that the failure to ascertain whether he properly understood his rights for the first one rendered the advisement defective. The HSC specifically noted that even though an on-the-record waiver of the defendant’s right is not required before trial, it really helps the court to review on appeal.
Not Harmless Error. “Once a violation of the constitutional right to testify is established, the conviction must be vacated unless the State can prove that the violation was harmless beyond a reasonable doubt.” Tachibana, 70 Hawaii at 240, 900 P.2d at 1307. An error cannot be harmless if “there is a reasonable possibility that the error might have contributed to the conviction.” State v. Schnabel, 127 Hawaii 432, 450, 279 P.3d 1237, 1255 (2012).
The prosecution did not argue that the error was harmless (it argued there was no error). Moreover, the HSC noted that the evidence presented at trial included some physical evidence, and the testimony of the complainant. Han’s closing argument, however, noted that the physical evidence did not match with the complainant’s version of events and that the complainant was not credible. Had Han testified, the jury would have to weigh the conflicting versions of events and then determine if the prosecution had proved its case. This rendered the failure to adequately engage in a colloquy an error that was not harmless beyond a reasonable doubt.