State v. Hau Phan
| Decision Date | 27 June 2019 |
| Docket Number | NO. CAAP-17-0000542,CAAP-17-0000542 |
| Citation | 444 P.3d 321 (Table) |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. HAU PHAN, also known as Hau Pham, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Hayden Aluli, for Defendant-Appellant.
Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
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Defendant-Appellant Hau Phan, also known as Hau Pham (Phan) appeals from the Judgment Conviction and Sentence (Judgment) entered by the Family Court of the Second Circuit (family court)1 on June 15, 2017. Plaintiff-Appellee State of Hawai‘i (State) charged Phan with Abuse of Family or Household Member, in violation of Hawaii Revised Statutes (HRS) § 709-906 (Supp. 2016),2 for an incident that occurred on August 11, 2016. After a jury trial, Phan was found guilty as charged.
On appeal, Phan argues the family court erred by: (1) failing to obtain a knowing, intelligent, and voluntary waiver of Phan's constitutional right not to testify; (2) admitting into evidence State's Exhibit 8 because it constituted double hearsay; (3) admitting into evidence State's Exhibit 9 because its probative value was outweighed by its prejudicial effect; (4) instructing the jury as to jury instructions numbers 13 and 27 because they were prejudicially insufficient, erroneous, inconsistent, or misleading; (5) sentencing Phan to the maximum one-year jail term; and (6) setting Phan's bail pending appeal of his misdemeanor conviction at $50,000. In addition, Phan contends that trial counsel provided ineffective assistance of counsel and that his due process right to a fair trial was violated.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments they advance and the issues they raise, as well as the relevant statutory and case law, we resolve Phan's points of error as follows.
Phan argues that the family court's advisements as to Phan's rights to and not to testify were defective for two reasons: (1) the pre-trial advisement was premature and untimely; and (2) both the pre-trial advisement and the ultimate Tachibana 3 advisement were deficient because the family court failed to engage in a "true colloquy" and instead merely recited a litany of rights.
On March 9, 2017, at a hearing on various motions in limine and a motion to admit evidence, the family court administered its pre-trial advisement of Phan's rights to and not to testify:4
The jury trial began the following Monday, on March 13, 2017.
Following the State's case-in-chief, the defense indicated that Phan would be testifying. Prior to Phan testifying, the family court administered the ultimate Tachibana colloquy, stating:
Phan first contends that the family court's pre-trial advisement, as required by State v. Lewis, 94 Hawai‘i 292, 12 P.3d 1233 (2000), was untimely and premature as it "was provided to Phan four days before trial actually commenced" and therefore "the court cannot be assured that Phan actually had an understanding of his constitutional right not to testify at his trial." To the extent Phan is arguing on appeal that the court is required to conduct the pre-trial advisement within a certain period of time before trial, he cites no authority for that proposition and we find none. Lewis merely requires that the advisement occur prior to trial. Id. at 297, 12 P.3d at 1238. Given the record in this case, the timing involved, and that the defense expressly did not object to the timing of the pre-trial advisement, Phan’s argument regarding the timeliness of the court’s pre-trial advisement is without merit.
Phan next contends that the family court's pre-trial Lewis advisement and ultimate Tachibana colloquy were not true colloquys but were instead mere recitals of a litany of rights without an ascertainment that Phan actually understood each of his rights.
Id. at 297, 12 P.3d at 1238 (emphasis added) (internal quotation marks and citation omitted). Here, in the pre-trial advisement, the family court fully informed Phan of his rights to and not to testify and alerted Phan that, if he had not testified by the end of the trial, the court would question him to ensure that it was Phan's own decision not to testify. The pre-trial advisement thus met the requirements established in Lewis. We therefore conclude that the family court properly conducted the pre-trial advisement under Lewis.
Regarding the ultimate Tachibana colloquy, in Lewis, the Hawai‘i Supreme Court also held that an ultimate Tachibana colloquy is not required in cases where a defendant has indicated that he or she does intend to testify.5 Lewis, 94 Hawai‘i at 296-97, 12 P.3d at 1237-38. In this case, the defense indicated that Phan would be testifying and Phan did actually testify. Therefore the family court was not required to conduct the ultimate Tachibana colloquy at all and any alleged error associated with the court's colloquy is without merit.
The family court did not err in its pre-trial advisement or the ultimate Tachibana colloquy. There is nothing in the record-to indicate that Phan's decision to testify was anything other than voluntarily, knowingly, and intelligently made.
Phan challenges the family court's admission of the Abuse of Family or Household Members Victim Voluntary Statement Form (Victim Statement Form) completed by the complaining witness, Ngoc Vu (Vu), during her statement to police (State's Exhibit 8). On appeal, Phan argues that the Victim Statement Form constituted inadmissible double hearsay because Vu's employer, Minh Nguyen (Nguyen), assisted Vu by translating between English and Vietnamese. However, Phan's objection at trial was to the admission of the Victim Statement Form to refresh Vu's memory during her testimony; Phan's objection was not regarding double hearsay. Therefore, we review the admission of the Victim Statement Form for plain error. See Hawai‘i Rules of Penal Procedure (HRPP) Rule 52(b) (1977) (); Hawai‘i Rules of Evidence (HRE) Rule 103(d) (2016) ().
The State offered the Victim Statement Form into evidence under HRE Rule 802.1 (1) (B) (2016),6 which "provides for substantive use of most prior inconsistent witness statements" as an exception to the hearsay rule. Commentary to HRE Rule 613 (2016); see also State v. Canady, 80 Hawai‘i 469, 480, 911 P.2d 104, 115 (App. 1996) ().
In State v. Eastman, 81 Hawai‘i 131, 137, 913 P.2d 57, 63 (1996), the Hawai‘i Supreme Court outlined the foundational requirements for evidence admitted pursuant to HRE Rule 802.1(1)(B) :
(1) a witness must testify about the subject matter of his or her prior statements so that the witness is subject to cross-examination concerning the subject matter of those prior statements; (2) the witness's prior statements must be inconsistent with his or her testimony; (3) the prior inconsistent statements must be reduced to writing and signed or otherwise adopted or approved by the witness; (4) the prior inconsistent statements must be offered in compliance with HRE Rule 613(b) (1993), which requires that, on direct or cross-examination, the circumstances of the prior inconsistent statements have been brought to the attention of the witness, and the witness has been asked whether he or she made the prior inconsistent statements.
(Footnote omitted.)
Here, Vu's statements in the Victim...
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