State v. Faafiti, 5365

Citation513 P.2d 697,54 Haw. 637
Decision Date29 August 1973
Docket NumberNo. 5365,5365
PartiesSTATE of Hawaii, Plaintiff-Appellee, v. Sui FAAFITI, also known as Fesuiaigamalifou Faafiti and Fasuiaigamalifou Faafiti, Defendant-Appellant.
CourtSupreme Court of Hawai'i

Syllabus by the Court

1. An accused has no constitutional, due process right to have the state provide an interpreter at trial upon his request, unless it is shown that a judge abused his discretion in failing to supply an interpreter's services because the accused is unable to understand questions posed during the proceedings or is unable to convey his thoughts to the jury.

2. At trial, a transcript of testimony given by a witness at a preliminary hearing is not constitutionally inadmissible under the confrontation clause, so long as (1) the witness was under oath, (2) the defendant and his attorney were present and had an opportunity to cross-examine the witness, (3) the proceedings were conducted before a judicial tribunal able to provide an accurate judicial record of the proceedings, and (4) the state is unable to procure the attendance at trial of the witness after diligent efforts to procure such attendance.

3. The admissibility of reputation evidence as to an accused's character traits is a matter within the trial judge's discretion, which is to be exercised with regard to the following factors: (1) extent of the witness's familiarity with the general consensus of the relevant community, (2) extent of the relevant community's familiarity with both defendant and with the particular character trait at issue.

4. There is no error in a judge's refusing to give instructions suggested by one party when the substance of the suggested instructions is given by the judge in the actual instructions read to the jury.

James T. Leavitt, Jr., Honolulu (Hart, Sherwood, Leavitt, Blanchfield, & Hall, Honolulu, of counsel), for defendant-appellant.

Douglas H. Ige, Deputy Pros. Atty., City & County of Honolulu, Honolulu (Barry Chung, Pros. Atty., Honolulu, with him on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

ABE, Justice.

In the early morning hours of November 3, 1971, a fight broke out in the parking lot of the Dunes night club on Nimitz Highway, Honolulu, involving the defendant, Sui Faafiti, his friends and several servicemen.

The defendant was charged with and tried for having committed the ofense of aggravated battery upon Terrence Grady and Ira Haskins, two of the servicemen. The jury convicted him of aggravated battery against Terrence Grady and acquitted him of the offense against Ira Haskins. Judgment and sentence was entered accordingly and the defendant appealed.

I.

The defendant contends that his native language is Samoan; that as he has difficulty understanding and speaking the English language, he had the right to testify with the aid of an interpreter; and, that when his request for the services of an interpreter was denied, he was denied due process of law.

It is general law that where a defendant cannot understand and speak English, the judge is required to appoint an interpreter to aid a defendant. Otherwise, a trial held in his presence would be meaningless to him and would violate our concept of due process, as he would not be given his day in court. Landeros v. State, 480 P.2d 273 (Okl.Cr.1971); Parra v. Page, 430 P.2d 834 (Okl.Cr.1967); United States ex rel. Negron v. State of New York, 310 F.Supp. 1304 (E.D.N.Y., 1970), aff'd, 434 F.2d 386 (2nd Cir. 1970).

The defendant's contntion, however, is not that he cannot understand and speak the English language but that he was 'not completely familiar with English' and that the court was required to appoint an interpreter to aid him at the trial. We do not agree with the defendant that whenever a defendant 'is not completely familiar with English,' upon his request as a matter of right he is entitled to an interpreter. In the first place, how many of us even though educated in the United States are completely familiar with the English language? 1 We believe that the fair and correct rule is that where a defendant has some knowledge of English and he is reasonably able to converse in English, it is within the discretionary power of the trial court whether to appoint or not to appoint an interpreter. Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 51 L.Ed. 722. (1907); State v. Kabinto, 106 Ariz. 575, 480 P.2d 1 (1971); Suarez v. United States, 309 F.2d 709 (5th cir. 1962).

Although the defendant did not speak grammatically correct English, upon review of the transcript of the defendant's testimony, we are satisfied that he had sufficient command of the English language to understand questions posed during the proceedings and to convery his thoughs to the jury, and we hold that the trial judge did not abuse his discretion.

II.

The defendant next contends that the trial judge erred in admitting into evidence the transcribed testimony of Ira Haskins given at the preliminary hearing.

There is no question that a defendant in a criminal case has a fundamental or constitutional right to be confronted with and to cross-examine witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Territory v. Gusman, 36 Haw. 42 (1942).

The hearsay rules of evidence and the confrontation clauses of our constitutions 2 we recognize are generally designed to avoid similar evils; however it is not correct to surmise that the overlap of the two doctrines of law is so complete that the confrontation clause is nothing more than a codification of the hearsay rules of evidence. As stated by the United States Supreme Court in California v. Green, supra, 399 U.S. at 155-156, 90 S.Ct. at 1934:

Our decisions have never established such a congruence; indeed, we have more than once found a violation of confronation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.

It is also to be noted that the confrontation clause was incorporated into the United States Constitution as the Sixth Amendment to prevent the despised paractice of having an accused tried primarily on 'evidence' consisting solely of ex parte affidavits, and depositions, and to give the accused the right to demand that his accusers, i. e., witnesses against him, be brought to face him. 3

Thus, '(t)he primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).

The United States Supreme Court in Mattox v. United States, supra, held that prior testimony given at a defendant's first trial by a witness, who had died subsequently, was admissible at the second trial and did not violate the confrontation clause.

In California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 1938, 26 L.Ed.2d 489 (1970), the United States Supreme Court ruled that a transcript of testimony given at a preliminary hearing was admissible and did not violate the Confrontation Clause. It stated that the witness Porter's

. . . statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel-the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unaviliable, despite good-faith efforts of the State to produce him.

Here, in spite of the defendant's contention that 'preliminary hearing in Hawaii is limited to question of probable cause' the transcript of the testimony of the witness on cross-examination shows that the defendant's present attorney, who was also his attorney at the preliminary hearing, questioned the witness extensively and thoroughly. 4

The record shows that witness Ira Haskins was shipped out from Hawaii during the latter part of December, 1971, after he had testified at the preliminary hearing on December 1, 1971. It also shows that the State on June 7, 1972, made a request to the proper military authority to have the witness brought back to Honolulu to testify, but this request was denied.

Upon the record of this case, the trial judge correctly ruled that the transcript of the testimony given at the preliminary hearing was admissible under the standards of California v. Green, supra.

III.

The defendant also argues that the trial judge erred in refusing to permit witness Ingrid Nelson to give any testimony concerning the defendant's character, particularly as to a trait of peacefulness or as to a non-violent temperament. Defendant has a clear right to introduce evidence of personal character traits associated with the basic...

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    ...so complete that the confrontation clause is nothing more than a codification of the hearsay rules of evidence." State v. Faafiti, 54 Haw. 637, 639, 513 P.2d 697, 700 (1973). Commentators have recognized that the confrontation clause encompasses a greater right than an evidentiary rule of e......
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