79 Hawai'i 226, Tachibana v. State

Decision Date26 July 1995
Docket NumberNo. 16589,16589
Citation79 Hawaii 226,900 P.2d 1293
Parties79 Hawai'i 226 Shigeyuki TACHIBANA, Petitioner-Defendant-Appellee, Cross-Appellant, v. STATE of Hawai'i, Respondent-Appellant, Cross-Appellee.
CourtHawaii Supreme Court

Ira Leitel, Kamuela, for petitioner-defendant-appellee/cross-appellant.

Daniel A. Morris and S. Gail Robertson, Deputy Attys. Gen., Honolulu, for respondent-appellant/cross-appellee.


KLEIN, Justice.

In 1987, Petitioner Shigeyuki Tachibana was convicted of Theft in the First Degree. On appeal, the conviction was affirmed by this court. State v. Tachibana, 70 Haw. 658, 796 P.2d 1002 (1988) (mem.). In 1990, Tachibana filed a petition for post-conviction relief pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure (HRPP). After a hearing, the third circuit court entered an order on October 5, 1992, granting Tachibana's petition for post-conviction relief and, on October 12, 1992, filed findings of fact (FOF) and conclusions of law (COL) in support of the order. Respondent State of Hawai'i filed a timely appeal from the order and the FOF/COL. Tachibana thereafter filed a cross-appeal. For the reasons set forth below, we affirm.


In 1983, Tachibana was the president and sole shareholder of the Hawaii International Sporting Club, Inc. (HISC). On October 17, 1983, Tachibana contracted to sell forty percent of HISC's stock to Artnature Company, Ltd. (Artnature), a Japanese corporation run by Saburo Akutsu. The contract of sale was entered into between Tachibana and Akutsu at a meeting held on the island of Hawai'i.

On May 15, 1985, a civil suit was brought against Tachibana (Artnature Co., Ltd. v. Shigeyuki Tachibana, et. al.) alleging that Tachibana had induced Akutsu to purchase the HISC stock by misrepresenting the nature and extent of HISC's holdings with the intent to deceive and defraud Artnature. Wallace Gallup, the attorney who had represented Tachibana in the incorporation of HISC and who had drawn up the Stock Purchase Agreement at issue, initially represented Tachibana in that case.

Then, on March 13, 1986, Tachibana and six other individuals, including Dwight Belt, an HISC employee, were indicted for commission of Theft in the First Degree and Criminal Conspiracy based on the allegedly fraudulent sale. Tachibana retained attorney David Schutter to prepare his defense. Tachibana agreed to pay $250,000 plus costs for Schutter's services. Subsequently, Tachibana, Schutter, and Gallup agreed that Tachibana would be better served in his criminal defense if Schutter were able to take advantage of the liberal rules of discovery in civil cases, and, therefore, Schutter took over the defense in the Artnature case.

In November 1986, the criminal trial of Tachibana and Belt began. 1 The defense team for Tachibana consisted of Schutter, two other attorneys, Stacy Moniz and Jerel Fonseca, a paralegal, Kris Watanabe, and an interpreter, Youko Smith. Belt was represented by attorney Michael Zola.

Smith was part of Tachibana's defense team because, although Tachibana was able to communicate without an interpreter in a limited manner using what was informally known as "Tachibana-English," his English proficiency was poor; Tachibana had a third-grade education in Japan, never studied English, and came to Hawai'i at the age of forty in 1972.

The trial began with the prosecution's opening statement. At that time, Smith was providing Tachibana with simultaneous translation. 2 During the opening statements, the trial court judge noticed that the jurors were being distracted by the volume of the interpretation and noticeably looked in the direction of Smith several times. Schutter then directed Smith to discontinue the simultaneous translation. At the Rule 40 hearing, Tachibana testified that he had asked Schutter to resume the simultaneous translation, but that Schutter had refused, telling him it would give a bad impression to the judge and jury.

The next day, Schutter filed a motion to disqualify the trial court judge because of the prejudicial effect his "glares" at the interpreter had had on the jury, and would continue to have, if simultaneous interpretation were to resume. The trial court denied the motion, trial continued, and Schutter never directed Smith to resume the simultaneous translation. Smith, however, remained at or near the defense table throughout the trial and provided summaries of the witnesses' testimony to Tachibana during lunch breaks and other recesses.

During the recesses, Tachibana frequently expressed his desire to testify. After the prosecution rested, however, the defense team decided as a tactical matter that it would be best not to call Tachibana as a witness. Schutter told Zola that he did not want to call Tachibana as a witness because the cross-examination of Akutsu had been effective and because Tachibana would not be a good witness. Zola had the impression that Schutter was going to talk to Tachibana and convince him not to testify.

When the trial later resumed, Schutter presented one live witness, Thomas Takahara, then read portions of the prior deposition testimony of Hidetake Ijuin, and finally, informed the court that Tachibana rested; Zola did not call any witnesses to testify in Belt's defense. After Schutter rested, he grabbed Tachibana by the shoulder and took him outside the courtroom. Tachibana appeared shocked and frustrated that the trial had ended without his testimony. He continued to insist that he be able tell his side of the story. At the Rule 40 hearing, Tachibana testified that when he told Schutter that he was going to talk to the judge about not being allowed to testify, Schutter told him that "with this judge, it's useless to do anything." Tachibana further testified that Schutter told him that even if the jury returned a guilty verdict, because the trial was full of errors, the conviction would not be upheld on appeal, and he would get a chance to tell his story after the case was remanded. Ultimately, Tachibana did not inform the trial court that he wanted to testify.

The jury thereafter found Tachibana guilty of Theft in the First Degree and acquitted Belt of both charges. Tachibana was sentenced to five years probation with the special conditions that he pay a fine of $5,000 and that he be jailed for one year.

After Tachibana was convicted and sentenced, Schutter filed an appeal with this court. We affirmed the judgment of the trial court in a memorandum opinion entered on October 26, 1988. State v. Tachibana, 70 Haw. 658, 796 P.2d 1002 (1988) (mem.). In the opinion, although the opening briefs were criticized, we addressed the merits of four issues, as follows:

As nearly as we can understand, appellant makes four contentions. First, he contends that proof of loss on the part of the purchaser was an essential element of the crime charged. It is obvious to us that HRS §§ 708-832 and 708-831(1)(b) do not require proof of loss in the case of the transaction here involved.

Secondly, appellant contends that there was a settlement agreement in Japan and that therefore the court below lacked jurisdiction. We find no merit in this contention. Thirdly, he claims that there was prosecutorial misconduct in failing to extradite co-defendants, in failing to provide the grand jury with exculpatory evidence, and that there was a fatal variance in the indictment. None of these contentions have any merit. Lastly, he argues that there was error in qualifying certain interpreters. We find no basis in the record for this.

On June 14, 1988, a tentative settlement in the Artnature case was reached, whereby Tachibana would pay $700,000 and Artnature would return the HISC stock; by December 8, 1988, the case was dismissed. Meanwhile, on November 3, 1988, Schutter filed suit against Tachibana for payment of fees and expenses from the civil and criminal litigation totalling just over $300,000; Tachibana counterclaimed alleging malpractice. Extensive discovery followed, during which all of the members of the defense team testified that Tachibana had been informed of his right to testify and had agreed to follow Schutter's advice that he refrain from testifying.

While the fee/malpractice litigation was ongoing, on December 5, 1990, Tachibana filed the petition for post-conviction relief at issue in the instant case alleging (1) that Schutter's failure to introduce the Stock Purchase Agreement into evidence, his failure to call Tachibana and several other individuals as witnesses, his "waiver" of Tachibana's right to testify, and his reliance on the "lack of detrimental reliance" defense amounted to ineffective assistance of counsel at trial, and (2) that Schutter's failure to raise all relevant issues on appeal and his failure to comply with the Hawai'i Rules of Appellate Procedure in the appellate briefs constituted ineffective assistance of counsel on appeal.

Then, on April 8, 1991, Schutter signed an affidavit that virtually admitted that he had provided ineffective assistance at trial; Moniz had signed a similar affidavit on April 4, 1991. The next day, the parties settled the fee/malpractice suit--Tachibana agreed to pay the $300,000 and drop the malpractice counterclaim, while Schutter agreed to provide a truthful affidavit or testimony at the Rule 40 proceedings. Aside from signing the affidavit, Schutter apparently gave up nothing.

After obtaining the affidavits from Schutter and Moniz, Tachibana filed an amended petition for post-conviction relief that expanded on the original claims and additionally alleged that Schutter failed to seek or insure interpretation of the court proceedings, failed to explain to Tachibana his right to simultaneous translation and discontinued it without Tachibana's consent, failed to adequately prepare for the defense, and failed to object to certain excludable evidence at trial.

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