State v. Faafiti, No. 5365

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

Page 697

513 P.2d 697
54 Haw. 637
STATE of Hawaii, Plaintiff-Appellee,
v.
Sui FAAFITI, also known as Fesuiaigamalifou Faafiti and
Fasuiaigamalifou Faafiti, Defendant-Appellant.
No. 5365.
Supreme Court of Hawai'i.
Aug. 29, 1973.

Page 698

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

Page 699

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.

[54 Haw. 646] 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.

[54 Haw. 637] Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

ABE, Justice.

In the early morning hours of November 3, 1971, a [54 Haw. 638] 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 [54 Haw. 639] 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

Page 700

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. [54 Haw. 640] 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...

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33 practice notes
  • State v. Sua, No. 21480.
    • United States
    • Court of Appeals of Hawai'i
    • August 30, 1999
    ...the stand and the manner in which he [or she] gives his [or her] testimony whether he [or she] is worthy of belief." State v. Faafiti, 54 Haw. 637, 640-41, 513 P.2d 697, 700 (1973) (quoting Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895)) (emphases added) (b......
  • 79 Hawai'i 128, State v. Apilando, No. 17402
    • United States
    • Supreme Court of Hawai'i
    • July 13, 1995
    ...confrontation clause is nothing more than a codification of the hearsay rules of evidence." [79 Hawai'i 132] Page 139 State v. Faafiti, 54 Haw. 637, 639, 513 P.2d 697, 700 Commentators have recognized that the confrontation clause encompasses a greater right than an evidentiary rule of excl......
  • State v. Rivera, No. 7025
    • United States
    • Supreme Court of Hawai'i
    • June 6, 1980
    ...associated with the basic nature of the offense with which he is charged as circumstantial evidence of his innocence, State v. Faafiti, 54 Haw. 637, 642, 513 P.2d 697, 701 (1973), and evidence of those traits to support his credibility as a witness. United States v. Lewis, 482 F.2d 632, 641......
  • State v. Sua, No. 21480.
    • United States
    • Supreme Court of Hawai'i
    • October 28, 1999
    ...law is 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 Commentators have recognized that the confrontation clause encompasses a greater right than an evidentiary rule of ex......
  • Request a trial to view additional results
33 cases
  • State v. Sua, No. 21480.
    • United States
    • Court of Appeals of Hawai'i
    • August 30, 1999
    ...the stand and the manner in which he [or she] gives his [or her] testimony whether he [or she] is worthy of belief." State v. Faafiti, 54 Haw. 637, 640-41, 513 P.2d 697, 700 (1973) (quoting Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895)) (emphases added) (b......
  • 79 Hawai'i 128, State v. Apilando, No. 17402
    • United States
    • Supreme Court of Hawai'i
    • July 13, 1995
    ...confrontation clause is nothing more than a codification of the hearsay rules of evidence." [79 Hawai'i 132] Page 139 State v. Faafiti, 54 Haw. 637, 639, 513 P.2d 697, 700 Commentators have recognized that the confrontation clause encompasses a greater right than an evidentiary rule of excl......
  • State v. Rivera, No. 7025
    • United States
    • Supreme Court of Hawai'i
    • June 6, 1980
    ...associated with the basic nature of the offense with which he is charged as circumstantial evidence of his innocence, State v. Faafiti, 54 Haw. 637, 642, 513 P.2d 697, 701 (1973), and evidence of those traits to support his credibility as a witness. United States v. Lewis, 482 F.2d 632, 641......
  • State v. Sua, No. 21480.
    • United States
    • Supreme Court of Hawai'i
    • October 28, 1999
    ...law is 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 Commentators have recognized that the confrontation clause encompasses a greater right than an evidentiary rule of ex......
  • Request a trial to view additional results

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