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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000814
                                                              19-JUN-2013
                                                              09:56 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

         CHONG HUNG HAN, Petitioner/Defendant-Appellant.


                            SCWC-11-0000814

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0000814; CR. NO. 10-1-1098)

                              JUNE 19, 2013

  RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.

                  OPINION OF THE COURT BY ACOBA, J.

          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/
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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.

                                    I.

          On January 26, 2010, Petitioner was charged, via

complaint, with the offense of Abuse of Family and Household

Members, HRS § 709-906 (Supp. 2006).1        The Complaint alleged that
on January 17, 2010, Petitioner “did intentionally, knowingly, or


     1
          HRS § 709-906 provides, in relevant part:
          (1) It shall be unlawful for any person, singly or in
          concert, to physically abuse a family or household
          member or to refuse compliance with the lawful order
          of a police officer under subsection (4). The police,
          in investigating any complaint of abuse of a family or
          household member, upon request, may transport the
          abused person to a hospital or safe shelter.

          For the purposes of this section, “family or household
          member” means spouses or reciprocal beneficiaries,
          former spouses or reciprocal beneficiaries, persons
          who have a child in common, parents, children; persons
          related by consanguinity, and persons jointly residing
          or formerly residing in the same dwelling unit.

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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 trial2, 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
          v.] 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.

(Emphases added.)

          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


     2
          The Honorable Fa#auuga L. To#oto#o presided.

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          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.

(Emphasis added.)    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.

                                    II.

          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,”


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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.

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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 of the colloquy that was conducted in that case

should be replicated in all subsequent cases[.]”           (Citing

Christian, 88 Hawai#i 407, 967 P.2d 239.)

           According to Respondent, “there is nothing in the

record to indicate that the interpreter had difficulty

interpreting the [] court’s colloquy of [Petitioner], or that

[Petitioner] was unable to understand any portion of the court’s

colloquy with him.”     Thus, “by answering either ‘yes’ or ‘no’ to

the questions asked by [the court, Petitioner] [] clearly

indicat[ed] through his answers that he understood the questions

. . . .”   The court “clearly asked [Petitioner] whether he had

any questions about the colloquy that the court ‘just explained’

. . . .”   “Although the transcript indicates ‘no audible

response’ in [Petitioner]’s reply [], it is apparent from [the

court’s] subsequent response of, ‘[o]kay, thank you very much,’

that [Petitioner] did not have any questions with regard to the

colloquy. . . .”    Respondent contends then that “based on the

totality of the circumstances, the record in this case clearly

envinces that [the court] conducted a colloquy that is consistent

with Tachibana, . . .     and [Petitioner] knowingly, intentionally,

and voluntarily waived his constitutional right to testify.”               See

Merino, 81 Hawai#i at 220, 915 P.2d at 694.         Therefore, according

to Respondent, “there was ‘no occasion to apply the doctrine of



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harmless error.’”     (Citing State v. Lewis, 94 Hawai#i 292, 264, 12

P.3d 1233, 1235 (2000) at 264, 12 P.3d at 1235.)

            As Petitioner recounts in his Application, the ICA

affirmed his conviction, stating the following, inter alia:
                  1. [The court] informed [Petitioner] of his right to testify
            or not testify before trial commenced and conducted a brief
            colloquy with [Petitioner] before the defense rested at trial, to
            ensure that [Petitioner’s] decision not to testify was his own[,]
            see Tachibana, 79 Hawai#i at 237 n.9, 900 P.2d at 1304 n.9.
                  2. [Petitioner] argues, however, that [the court’s] end-of-
            trial colloquy was inadequate because it was conducted with the
            assistance of an interpreter, it was relatively brief, and
            [Petitioner’s] responses to the court were simply ‘yes’ or ‘no.’

                  3. [T]here is nothing in the record to indicate, that the
            interpreter had any problem interpreting [the court’s] colloquy or
            that [Petitioner] did not understand the colloquy . . . .

                  4. [B]ased on the totality of the circumstances, . . .
            [Petitioner’s] waiver of his constitutional right to testify was
            done knowingly, intelligently, and voluntarily.

(Citing State v. Chong Hung Han, No. CAAP-11-0000814, 2012 WL

4009906, at *2-3 (App. Sept. 12, 2012)(SDO).)

                                    III.

            In his Application Petitioner maintains that “[t]he ICA

gravely erred in holding that [Petitioner] made a knowing,

intelligent, and voluntary waiver of the right to testify at
trial because the ICA erroneously concluded that [Petitioner]

understood his constitutional rights.”          Respondent did not file a

response.

                                     IV.

            It is established that “‘[a] defendant’s right to

testify in his or her own defense is guaranteed by the

constitutions of the United States and Hawai#i and by a Hawai#i



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Statute.[3]’”   Tachibana, 79 Hawai#i at 231, 900 P.2d at 1298

(quoting State v. Silva, 78 Hawai#i 115, 122-23, 890 P.2d 702,

709-10 (App. 1995))(brackets omitted).         Three separate amendments

of the United States Constitution guarantee such a right.

Tachibana, 79 Hawai#i at 231, 900 P.2d at 1298.
          “It is guaranteed by the due process clause of the
          fourteenth amendment as essential to due process of law in a
          fair adversary process. . .
          The right to testify is also guaranteed to state defendants
          by the compulsory process clause of the sixth amendment as
          applied through the fourteenth amendment. . .
          Lastly, the opportunity to testify is also a necessary
          corollary to the Fifth Amendment’s guarantee against
          compelled testimony, since every criminal defendant is
          privileged to testify in his [or her] own defense, or to
          refuse to do so.”

Id. (quoting Silva, 78 Hawai#i at 122-23, 890 P.2d at 709-10).

The Hawai#i Constitution also guarantees the right to testify in

the provisions that parallel the fourteenth, fifth, and sixth

amendments to the United States Constitution.          See id.; Haw.

Const. art. I, §§ 5, 14, and 10.

          In Tachibana, this court first considered what
procedures would best protect criminal defendants’ exercise of

their right to testify.     Id. at 233-38, 900 P.2d at 1300-05.

After reviewing the three primary approaches that other

jurisdictions had taken in cases where defendants had claimed




     3
          HRS § 801-2 (1993) states:

          In the trial of any person on the charge of any offense, he
          [or she] shall have a right. . . to be heard in his [or her]
          own defense.

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that their attorneys deprived them of their right to testify,4

this court concluded that requiring trial courts to conduct an

on-the-record discussion with the defendant was the best

approach.    Id.   The risk that “‘by advising the defendant of his

[or her] right to testify, the court could influence the

defendant to waive his [or her] right not to testify, thus

threatening the exercise of this other, converse,

constitutionally explicit and more fragile right[,]’” was

recognized.    Id. at 235, 900 P.2d at 1303 (quoting United States

v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989)) (brackets and

emphases in original).      However, this court also observed that
            “[a]lthough trial judges would be required to advise
            defendants who do not testify, the burden would be
            relatively minimal. Indeed, by engaging in the colloquy, a
            trial judge would establish a record that would effectively
            settle the right-to-testify issues in the case, and thereby
            relieve the trial judge of extended post-conviction
            proceedings.”

Id. (quoting Boyd, 586 A.2d at 679-80) (emphasis added).             Thus,

it was held that “in order to protect the right to testify under

the Hawai#i Constitution,[] trial courts must advise criminal

defendants of their right to testify and must obtain an on-the-




     4
             The Tachibana court first rejected the “demand rule” which would
have required that “‘a defendant who fails to complain about the right to
testify during trial is conclusively presumed to have waived that right.’” 79
Hawai#i at 233, 900 P.2d at 1301 (quoting Boyd v. United States, 586 A.2d 670
(D.C.App. 1991)). The court then decided between the remaining two
approaches. Id. at 234, 900 P.3d at 1301. One approach was the “colloquy
procedure[,]” which it adopted. 79 Hawai#i at 234, 900 P.2d at 1301. The
remaining approach was the post-conviction challenge approach, in which “‘a
trial judge need not sua sponte question the defendant during the trial, but
the defendant is free to bring a post-conviction challenge based on a denial
of the right to testify. To prevail in such a challenge, the defendant must
demonstrate that he or she did not knowingly waive the right to testify at
trial.’” Id. (quoting Boyd, 586 A.2d at 675-677.)

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record waiver of that right in every case in which the defendant

does not testify.”       Id. at 1303.

             Tachibana also discussed when such a colloquy must take

place, concluding that “the ideal time to conduct the colloquy is

immediately prior to the close of the defendant’s case.”               Id. at

237.    Further, Tachibana indicated how the colloquy must be

conducted.      Id. at 236 n.7, 900 P.2d at 1303 n.7.          It stated,
             In conducting the colloquy, the trial court must be careful
             not to influence the defendant’s decision whether or not to
             testify and should limit the colloquy to advising the
             defendant
             “[(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. (quoting State v. Neuman, 179 W.Va. 580, 585 (1988))(brackets

and citation omitted).

             This court’s subsequent opinion in Lewis further

clarified the requirements of when and how a court must conduct

the colloquy.      First, Lewis incorporated the colloquy
requirements that were set forth in footnote 7 of Tachibana,

quoted supra, into the text of the opinion, when it described how

a trial court must engage a defendant.            Lewis, 94 Hawai#i at 293-

94, 12 P.3d at 1234-35.        Second, in recognizing that the

Tachibana colloquy was the “product of two objectives: (1) the

protection of a defendant’s personal right to testify; and (2)

the minimization of post-conviction disputes over the actual

waiver of the right to testify[,]” id. at 295, 12 P.3d at 1236,

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Lewis held that a trial court need not engage in a Tachibana

colloquy except where the defendant has indicated that he or she

will not testify.      Id. at 296-97, 12 P.3d at 1237-38.          This court

also stated, however, that “we believe there is a salutary effect

to be obtained in all cases from a trial court addressing a

defendant [at the start of trial],” and thus this court held that

“we now mandate that . . .        such advice shall be imparted by the

trial court to defendants . . . . prior to the start of trial[.]”

Id.

            Therefore, Lewis (1) reiterated the requirements set

out in footnote 7 of Tachibana regarding how the trial court must

advise the defendant, id. at 294-95, 12 P.3d at 1234-35, (2)

required that a colloquy regarding defendant’s right to testify

or not to testify be conducted at the start of trial in all

cases, id. at 296, 12 P.3d at 1237, and (3) stated that the

“ultimate colloquy,” the one described in Tachibana, must be

given in all cases, except where the defendant has indicated that

he or she does intend to testify, id. at 296, 12 P.3d at 1237.

                                    V.

            In the instant case, Petitioner contends that his

waiver of the constitutional right to testify in his defense was

not knowing, intelligent, and voluntary.           This court has held

that “to determine whether a waiver [of a fundamental right] was

voluntarily and intelligently undertaken, this court will look to

the totality of the facts and circumstances of each particular

case.”    State v. Friedman, 93 Hawai#i 63, 66-67, 996 P.2d 268,

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273-74 (2000) (internal quotation marks and citations omitted);

see also Christian, 88 Hawai#i at 420, 967 P.2d at 252 (applying

the “totality of the facts and circumstances” test to determine

whether the defendant’s waiver of his right to testify in his own

defense was knowing, intelligent, and voluntary).           Based on the

transcripts of the court’s proceedings in this case, taken as a

whole, it appears that the defendant did not knowingly,

intelligently, and voluntarily waive his constitutional right to

testify.

                                    VI.

           In this case, two advisements took place regarding the

defendant’s right to testify, one before trial began, in

accordance with Lewis, 94 Hawai#i at 297, 12 P.3d at 1238, and one

at the close of the defendant’s case, as required by Tachibana,

79 Hawai#i at 236, 900 P.2d at 1303.        With respect to the first

advisement, Lewis requires that “‘prior to the start of trial,’”

the court shall “‘(1) inform the defendant of his or her personal

right to testify or not to testify and (2) alert the defendant

that, if he or she has not testified by the end of the trial, the

court will briefly question him or her to ensure that the

decision not to testify is the defendant’s own decision.’”             94

Hawai#i at 297, 12 P.3d at 1238 (quoting Tachibana, 79 Hawai#i at

237 n.9, 900 P.2d at 1304 n.9).       Petitioner challenges the first

pre-trial colloquy on the ground that the court did not obtain




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from the defendant an audible indication that he understood his

rights.

          As indicated supra, before the start of trial, the

court advised Petitioner of his “constitutional right to testify

in his own defense.”     To reiterate, at the end of his pre-trial

advisement, the judge asked Petitioner if he had any questions

about what the judge had explained, but it was noted on the trial

transcript that Petitioner’s response was inaudible.
          There is no requirement for this first advisement that

a court obtain an on-the-record waiver of the defendant’s right

to testify.   However, Lewis implemented the pre-trial advisement

requirement with the intent that it would “have the beneficial

effect of limiting any post-conviction claims that a defendant

testified in ignorance of his or her right not to testify.”                94

Hawai#i at 297, 12 P.3d 1238.      It is thus important that the

defendant actually have an understanding of what the court

articulates in its pre-trial advisement.
          In this case, there was no audible response by

Petitioner to the court’s inquiry as to whether Petitioner had

any questions about the rights that the court explained.

Contrary to Respondent’s assertion that the court’s “[o]kay,

thank you very much,” indicates acquiescence on the part of

Petitioner, it cannot be inferred exactly what was said because

Petitioner’s response was inaudible.        Therefore, even though an

on-the-record waiver is not required, the fact that it is not

known whether Petitioner was able to understand the court’s

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advisement is problematic inasmuch as appellate review of the

adequacy of the advisement is precluded.

           On appeal, the pre-trial advisement is reviewed for

“actual prejudice.”     Lewis, 94 Hawai#i at 297, 12 P.3d at 1238

(“Because we view this prior-to-trial advisement as incidental to

the ‘ultimate colloquy’ [], any claim of prejudice resulting from

the failure of the trial court to give it must meet the same

‘actual[] prejudice[]’ standard applied to violations of the
colloquy requirement.”)     In holding that the failure to properly

conduct the Tachibana colloquy was harmful error, infra, the

issue of whether Petitioner could demonstrate “actual prejudice”

with respect to the pre-trial colloquy need not be addressed

here.

                                  VII.

           Petitioner also challenges the second colloquy, the

Tachibana colloquy given at the close of his case, on two

different grounds.    First, he alleges that the court failed to
adequately ascertain whether Petitioner understood his Tachibana

rights.   Second, he contends that because he needed a Korean

language interpreter, the court’s failure to inquire into whether

he understood the advisement was even “more egregious.”

           Pursuant to Tachibana, this second colloquy is

considered to be the “ultimate colloquy,” 79 Hawai#i at 237 n.9,

900 P.2d 1304 n.9, and while Lewis held that this colloquy was

not required where the defendant had decided to testify, 94

Hawai#i at 296-97, 12 P.3d at 1237-38, in this case such an

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exchange was necessary, because Petitioner’s attorney had

indicated that Petitioner would not be testifying.           In this case,

to reiterate, the transcript indicates that the following

exchange took place at the close of Petitioner’s case:
                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.

(Emphases added.)

                                     A.

          First, the court failed to ascertain whether Petitioner

understood his right to testify.          As mentioned, following

Tachibana, “in order to protect the right to testify under the

Hawai#i 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.”           79 Hawai#i at

236, 900 P.2d at 1303.     Tachibana characterized such an exchange


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as a “colloquy.”    Id. at 237, 900 P.2d at 1304.        “Colloquy” is

defined as “[a]ny formal discussion, such as 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) (emphases added).

          In this case, the transcript does not indicate that a

true “colloquy” took place.      Instead, the court simply advised
Petitioner of his rights, without any “discussion,” “exchange” or

ascertainment that Petitioner understood his rights.            See id.

Respectfully, at least twice during the colloquy, the court

should have engaged in a verbal exchange with Petitioner to

ascertain Petitioner’s understanding of significant propositions

in the advisement.

          The first time the court should have requested a

response was after it stated, “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 instructed not to

hold that against you.”     The court did not obtain an affirmative

or negative response from Petitioner as to his understanding of

these principles, but simply continued on with the advisement.

          The second time the court should have requested a

response was following its statement that “[a]nd -- 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

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based on that discussion, you have decided that you are not going

to testify on your behalf.”      Again, the court did not engage

Petitioner in any acknowledgment of his understanding of these

propositions.    Instead of asking for Petitioner’s response to

these important matters, the court singled out one factor for a

response, inquiring “[i]s anybody threatening or forcing you this

morning not to testify?”, to which Petitioner responded, through

his interpreter, “No.”     It is not evident why the court chose
this particular issue as one deserving of a response, but did not

inquire into other matters of constitutional magnitude.

          Under the circumstances, the court did not adequately

establish, on-the-record, that Petitioner understood what rights

he was waiving when he agreed that his decision not to testify

was his alone.    Nothing in the record indicates that in making

that decision for himself, Petitioner had in fact understood the

rights listed by the court and to which the court did not obtain

responses.
          Moreover, Petitioner’s two responses to the court

during this colloquy do not indicate that Petitioner understood

that he had the right to testify.         Regarding the first question,

“[i]s anybody threatening or forcing you this morning not to

testify?”, (emphasis added), Petitioner’s response of “No” does

not indicate that he understood that he had a constitutional

right to testify, only that no one was forcing him not to do so.

Moreover, although Petitioner responded “[y]es” to the court’s

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statement that “[t]he decision not to testify is yours and yours

alone after you have discussed the matter with your attorney[,]”

it is not clear that the defendant was responding “yes” that he

understood that the decision was his alone, or “yes[,]” he had

discussed the matter with his attorney.5

            The failure to ensure that Petitioner understood his

rights amounts to a failure to obtain the on-the-record waiver

required by Tachibana.      In Tachibana, this court declared that
one of its reasons for adopting such a requirement was so “a

trial judge would establish a record that would effectively

settle the right-to-testify issues in the case, and thereby

relieve the trial judge of extended post-conviction proceedings.”

79 Hawai#i at 234-35, 900 P.2d at 1302-03 (quoting Boyd, 586 A.2d

at 679-80) (emphasis added).        The colloquy in the instant case by

no means produced a record that would “settle the right-to-

testify issues.”     Id.   Respectfully, the colloquy does not

establish any confidence that the defendant understood each of
his rights, and that the court had an objective basis for finding

that Petitioner knowingly, intelligently, and voluntarily gave up

those rights.6

      5
            The Hawaii Criminal Benchbook also sets forth the Tachibana
requirements.
      6
            By contrast, in Christian, the court administered the colloquy as
follows:
                  THE COURT: As I have discussed with you before the
            start of the trial, you do have the constitutional right to
            testify in your own defense, You understand?
                  THE DEFENDANT: Yes.

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                                      B.

            Next, Petitioner’s observation that the court’s error

in failing to ensure his understanding was “more egregious”

because of the need for an interpreter is accurate.            The language

barrier in this case was a “salient fact” that impacted

Petitioner’s ability to understand the rights that he waived.

See Barros, 105 Hawai#i at 170, 95 P.3d at 24.

            In determining how language barriers can affect the
waiver of constitutional rights, case law regarding the waiver of

the right to a trial by jury, see U.S. Const. amend XI; Haw.

Const. art. 1, § 14, is instructive.          In United States v. Duarte-

Higareda, the Ninth Circuit considered whether a defendant had

knowingly and intelligently waived his Constitutional right to a

jury trial.    113 F.3d 1000, 1002 (9th Cir. 1997).          That court



                  THE COURT: And although you should consult with [],
            your lawyer regarding your decision to testify, it is your
            decision and no one can prevent you from testifying if you
            chose to do so . . . Do you understand?
                  THE DEFENDANT: Yes.
                  THE COURT: And if you decide to testify, the
            prosecutor will be allowed to cross-examine you. You
            understand that?
                  THE DEFENDANT: Yes.
                  THE COURT: You also have the constitutional right not
            to testify and to remain silent. You understand?
                  THE DEFENDANT: I understand.
                  THE COURT: And you understand that if you chose not
            to testify, that the jury will be instructed that it can not
            hold your silence against you in deciding your case.
                  THE DEFENDANT: I understand.
                  THE COURT: It’s the understanding of the Court that you do
            not intend to testify in this case, is that correct?
                  THE DEFENDANT: That’s correct.
                  THE COURT: And that’s your decision.
                  THE DEFENDANT: Yes.
88 Hawai#i at 414-15, 967 P.2d at 246-47 (emphases added).

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noted that “the district court should question the defendant to

ascertain whether the defendant understands the benefits and

burdens of a jury trial and freely chooses to waive a jury.”               Id.

(citing United States v. Cochran, 770 F.2d 850, 853 (9th Cir.

1985)).

          The defendant had used a Spanish language interpreter

throughout the proceedings, but signed a written jury waiver form

that was written entirely in English.        Id. at 1003.     Under these
circumstances, Duarte-Higareda held that “[the defendant’s]

language 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[.]”    Id. (emphasis added) (citation and internal

quotation marks omitted).      The Ninth Circuit thus held that the

language barrier triggered an additional reason for the district

court to engage in a colloquy with the defendant “to carry out

its ‘serious and weighty responsibility’ of ensuring that a
defendant’s jury waiver is voluntary, knowing, and intelligent.”

Id. (quoting United States v. Christensen, 18 F.3d 822, 826 (9th

Cir. 1994)).

          This court has acknowledged this “salient fact”

requirement in Friedman, where it addressed whether or not the

defendant’s waiver of a jury trial was voluntary, knowing and

intelligent. 93 Hawai#i at 70, 996 P.2d at 275 (“[The defendant]

has failed to direct us to any ‘salient fact’ bearing upon his

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ability to understand his jury waiver that would have created the

need for an extensive colloquy by the trial court . . . [.]”);

see also Barros, 105 Hawai#i at 169, 95 P.3d at 23; State v.

Mitchell, 94 Hawai#i 388, 395, 15 P.3d 314, 321 (App. 2000).

While Friedman is not controlling in terms of addressing a

defendant’s waiver of his or her right to testify, the rationale

in Friedman highlights the necessity of ensuring that a trial

court’s procedures are designed to adequately protect vulnerable
defendants.

            The presence of a “salient fact” underscores the

importance of the court’s colloquy as a procedural safeguard that

protects a defendant’s right to testify or to not testify.

“Salient facts,” such as mental illness or language barriers,

require that a court effectively engage the defendant in a

dialogue that will effectuate the rationale behind the colloquy

and the on-the-record waiver requirements as set forth in

Tachibana.    See 79 Hawai#i at 325, 900 P.2d at 1302.
            In Duarte-Higareda, the language barrier was a concern

with regard to filling out the jury waiver form that was in

English.    770 F.2d at 1003.     Here, a number of complex concepts

addressing Petitioner’s constitutional rights were articulated by

the court and then apparently translated for Petitioner.7             With




      7
            The record reflects that the defendant had a Korean language
interpreter and that the discussion occurred “[t]hrough the interpreter[.]”

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respect to a waiver of the right to testify, Tachibana and Lewis

require a colloquy in all cases where defendant is not

testifying, see Lewis, 94 Hawai#i at 297, 12 P.3d at 1238, so

whether or not a colloquy should have been conducted is not at

issue in this case.     However, as in Duarte-Higareda, a language

barrier was present, and thus there was a “salient fact” that

made the Petitioner’s understanding of the colloquy critical.

          In these circumstances, the court was duty bound under
Tachibana to inquire into Petitioner’s understanding of the

rights that the court articulated.         The language barrier that

triggered the colloquy requirement in Duarte-Higareda, 770 F.2d

at 1003, and, by analogy, the language barrier in this case,

implicate the importance of proper questioning to confirm that

the Petitioner understood each of his rights with respect to his

decision not to testify.

                                   VIII.

            Taken together, the errors by the court in the instant
case demonstrate that Petitioner’s waiver of the right to testify

was not made knowingly, intelligently, and voluntarily.            See

Christian, 88 Hawai#i at 420, 967 P.2d at 252.          With respect to

the Tachibana colloquy at the close of defendant’s case, first,

the court did not ask Petitioner for appropriate responses to

ensure that Petitioner understood the rights articulated, and

second, the risk that Petitioner did not understand was

exacerbated by the fact that Petitioner needed an interpreter

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during the proceedings.       Accordingly, a review of the court’s

interactions with Petitioner with respect to the constitutional

right to testify establishes that the court did not obtain a

valid on-the-record waiver of Petitioner’s right to testify.8

                                     IX.

            With respect to the Tachibana colloquy at the close of

Petitioner’s case, first, the court did not ask Petitioner for

appropriate responses to ensure that Petitioner understood the

rights articulated, and second, the risk that Petitioner did not

understand was exacerbated by the fact that Petitioner needed an

interpreter during the proceedings.         Taken together, the errors

by the court in the instant case demonstrate that Petitioner’s

       8
             In addition, because the case is remanded, we note that in the
Tachibana colloquy, two of the advisements may have been confusing and one of
the required advisements was omitted altogether.
       First, the court must indicate to a defendant that no one can prevent
him or her from testifying. Id. However, here, the court stated, “whether to
testify or not is your decision alone and [] nobody can force you to testify.”
At the end of the colloquy, the court then asked Petitioner, “[i]s anybody
threatening or forcing you this morning not to testify?” The court’s
questions indicated coercion was involved, but, to the contrary, “preventing”
need not involve threats or force.
       Second, the court should tell a defendant “that if he or she testifies,
the prosecution will be allowed to cross examine him or her.” Tachibana, 79
Hawai#i at 236 n.7, 900 P.2d at 1303 n.7 (brackets and citations omitted).
Here, the court did not advise Petitioner of this at all during the Tachibana
colloquy. Although Petitioner’s counsel had indicated that Petitioner did not
intend to testify, it was still critical that the court inform Petitioner that
if he did testify, the prosecutor could cross-examine him, inasmuch as
Petitioner could change his mind and decide to testify.
       Finally, the court should advise a defendant that he or she has the
right not to testify. Tachibana, 79 Hawai#i at 235, 900 P.2d at 1303. Here,
the court told Petitioner that he had “the constitutional right to remain
silent[,]” and said nothing about the right not to testify. However, for a
defendant, “remaining silent” could mean something other than “not
testifying,” since the phrase “right to remain silent” popularly invokes the
familiar Miranda warnings. As Chief Justice Rehnquist noted in his opinion in
Dickerson v. United States, “Miranda has become embedded in routine police
practice to a point where the warnings have become part of our national
culture.” 530 U.S. 428, 430 (2000). A defendant could be confused if a court
states simply, “you have the right to remain silent” without using the
accompanying phrase, “you have the right not to testify.”

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waiver of the right to testify was not made knowingly,

intelligently, and voluntarily.       See Christian, 88 Hawai#i at 420,

967 P.2d at 252.    Accordingly, a review of the court’s

interactions with Petitioner with respect to the constitutional

right to testify establishes that the court did not obtain a

valid on-the-record waiver of Petitioner’s right to testify.

          Additionally, we note advisedly for purposes of remand,

that the court misstated two portions of the Tachibana colloquy
and omitted a third portion entirely.

                                     X.

          Respondent does not make any arguments with respect to

harmless error, except to state that, “there is no error here,

and thus ‘no occasion to apply the doctrine of harmless error.’”

(Quoting Lewis, 94 Hawai#i at 264, 12 P.3d at 1235.)           However,

“[o]nce 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, 79 Hawai#i at 240, 900 P.2d at 1307 (citing Silva, 78

Hawai#i at 125, 890 P.2d at 712).         In this case, Respondent has

not attempted to prove the violation was harmless beyond a

reasonable doubt.

          “The relevant question under the harmless beyond a

reasonable doubt standard is ‘whether there is a reasonable

possibility that error might have contributed to conviction.’”

State v. Schnabel, 127 Hawai#i 432, 450, 279 P.3d 1237, 1255


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(quoting State v. Duncan, 101 Hawai#i 269, 278, 67 P.3d 768, 777

(2003)) (emphases in original).        As stated, the ICA observed in

Hoang that, “it is inherently difficult, if not impossible, to

divine what effect a violation of the defendant’s constitutional

right to testify had on the outcome of any particular case,”                94

Hawai#i at 379, 12 P.3d at 379 (citing Silva, 78 Hawai#i at 126,

890 P.2d at 713), and thus the burden rests on the State to

establish “the violation was harmless beyond a reasonable doubt.”
Tachibana, 79 Hawai#i at 240, 990 P.2d at 1307.

            The jury in the instant case heard testimony from

complainant, who testified as to the incident, and Honolulu

Police Officer Kelly Crail (Crail), who responded to the scene of

the alleged incident.      During his cross-examination of

complainant,9 and the cross-examination of Crail,10 Petitioner’s


      9
            The following excerpts, inter alia, from the cross-examination of
complainant support Petitioner’s theory of the case:
                  [Counsel for Petitioner]: So you went to Straub
            [clinic] with these two people from the church, right?
                  [Complainant]: That’s correct.
                  [Counsel for Petitioner]: And you told them what
            happened?
                 [Complainant]: Yes.
           . . . .
                 [Counsel for Petitioner]: So they didn’t find that --
           your breathing was normal, and your breath sounds normal,
           and you had no respiratory distress?
                 [Complainant]: Yes, they say nothing wrong.
           . . . .
                 [Counsel for Petitioner]: [] So at Straub [clinic], they did
           some tests on you, yeah, x-ray?
                 [Complainant]: Yes.
                 [Counsel for Petitioner]: They found no fracture?
                 [Complainant]: Yeah, that’s right.
      10
            The following excerpts, inter alia, from the cross-examination of
Crail support Petitioner’s theory of the case:


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counsel attempted to call into question whether complainant was

actually injured as a result of the events that took place on

January 17, 2010.     Thus, the theory of Petitioner’s defense at

trial appears to have been that complainant’s testimony was not

credible, in other words, that she was lying about the alleged

incident.

            In closing argument, Petitioner’s counsel argued, inter

alia, that (1) “the physical evidence [didn’t] match” the
complaint’s version of events,11 (2) that complainant

“exaggerated” her account and was “not credible[,]”12 (3) that the

only account of the incident that Respondent presented was

complainant’s account, which again, was not corroborated by the




                  [Counsel for Petitioner]: If she hadn't been able to
            walk around because of pain, that certainly would have gone
            in your report, correct?
                  [Crail]: Yes.
                  [Counsel for Petitioner]: Do you recall ever seeing
            her walk at all that night? Was she moving and standing at
            all?
                  [Crail]: Yes.
            . . . .
                  [Counsel for Petitioner]: Did you see her walk with a
            limp, dragging her back foot?
                  [Crail]: No.
                  [Counsel for Petitioner]: Something like that, you
            certainly would have noticed, and probably the EMS person
            would have noticed, everybody would have noticed, right?
                  [Crail]: Yes.
      11
            Counsel for Petitioner stated, “[p]hysical evidence doesn’t lie.
The physical evidence doesn’t match, and when the physical evidence doesn’t
match, you have a reasonable doubt as to whether things happened the way
[complainant] said.”
      12
            Counsel for Petitioner stated, “[s]o [complainant] exaggerated.
And what does the law say about exaggerating? You can use that to see if you
find the witness credible. She’s not credible.”

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physical evidence,13 (4) that the jury cannot know, based only on

complainant’s account, what actually occurred on the date of the

incident,14 and (5) that complainant’s “stories conflict,” which

could create questions in the minds of the jurors, and therefore

reasonable doubt.15    As a result, based on the cross-examination

of Respondent’s witnesses and the closing argument, the case

would have rested on the credibility of the witnesses.

          As Petitioner noted before, “[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 [complainant’s] version.”

     13
          Counsel for Petitioner stated,
          And if you have a doubt about that -- because it’s just
          [complainant’s] word. There’s no other witnesses. There’s
          no video of something happening. There’s no neighbor who
          even heard shouting. There’s no other testimony. That’s
          all [Respondent’s] introduced, is her word that this
          happened. And you look at the physical evidence, which
          doesn’t lie, it can’t lie, and has no reason to lie, has
          nothing to gain from -- by lying, and it doesn’t match what
          she said.
     14
          Counsel for Petitioner stated:

          [Complainant] came in, and she lied, and she
          exaggerated. And you don’t know what really happened
          that night. You don’t know if [Petitioner] hit her.
          You don’t know if he was even there. You don’t know
          if she just whacked herself in the face enough to get
          it red and show an old bruise or a new bruise, rammed
          herself against the counter. Who knows, okay? Who
          knows?
     15
          Finally, counsel for Petitioner stated:
          [Complainant’s] stories conflict. You’re allowed to
          question her credibility. You may have a question about her
          credibility. And she’s the only eyewitness. If you have
          questions about your decision. When you have questions,
          that means you have a doubt. When you have just one, single
          reasonable doubt -- doesn’t have to be the same as everybody
          else -- you have to vote not guilty.

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Thus, in this case, as in Tachibana and Silva, it would be

“‘impossible to conclude, beyond a reasonable doubt,’” that

Petitioner’s testimony, “‘could not have created a reasonable

doubt in the mind of the factfinder and, hence, that the error

could not have contributed to the conviction.’”          Tachibana, 79

Hawai#i at 240, 900 P.2d at 1307 (quoting Silva, 78 Hawai#i at

126, 890 P.2d at 713).     Thus, the court’s error in failing to

obtain an knowing, intelligent, and voluntary waiver of
Petitioner’s right to testify was not harmless.

                                    XI.

          Based on the foregoing, we vacate the ICA’s October 30,

2012 judgment and the court’s October 13, 2011 Amended Judgment

of Conviction and Sentence, and remand the case to the court for

proceedings not inconsistent with this opinion.


Evan S. Tokunaga,                    /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Paula A. Nakayama

                                     /s/ Simeon R. Acoba, Jr.
                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack




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