State v. Hoang, No. 21869.
| Decision Date | 17 October 2000 |
| Docket Number | No. 21869. |
| Citation | 94 Haw. 271,12 P.3d 371 |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Tan T. HOANG, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Theodore Y.H. Chinn, Deputy Public Defender, on the briefs, for defendant-appellant.
Bryan K. Sano, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.
By judgment entered on July 24, 1998 in the district court of the first circuit, Defendant-Appellant Tan T. Hoang (Hoang) was convicted of assault in the third degree following a bench trial. He appealed. On remand from the Hawaii Supreme Court, State v. Hoang, 93 Hawaii 333, 337, 3 P.3d 499, 503 (2000), we address Hoang's remaining points of error. These are, (1) that the trial court committed plain error in failing to obtain a knowing and voluntary waiver of Hoang's right to testify; (2) that the court erred in convicting Hoang of assault in the third degree, because there was insufficient evidence to prove beyond a reasonable doubt that Hoang caused bodily injury to the complaining witness; and (3) that the court erred in failing to afford Hoang his right to allocution before imposing sentence upon him.
We agree with Hoang that the court committed plain error in failing to obtain, directly from him, a waiver of his right to testify. Concluding that this error was not harmless beyond a reasonable doubt, and disagreeing with Hoang that there was insufficient evidence to convict him, we vacate the July 24, 1998 judgment and remand for a new trial. In order to provide guidance to the court on remand, we also address Hoang's last point of error.
Before the trial started, the court dealt with two preliminary matters. First, an understanding was reached regarding Hoang's comprehension of the proceedings:
The court then engaged Hoang in the colloquy recommended by the Hawai`i Supreme Court in Tachibana v. State, 79 Hawai`i 226, 237 n. 9, 900 P.2d 1293, 1304 n. 9 (1995):
The State called the complaining witness, Thomas Charles Cox (Cox), as its first witness.
Cox remembered that on March 15, 1998, he rode his bicycle to the French Wrench Shell gas station on Ward Avenue to buy a pack of cigarettes. He walked into the convenience store area of the station, but no one was in attendance. He had noticed as he rode up that Hoang was outside the store in a "Honda car" with two other males. Cox maintained that he saw them drinking what looked like beer out of a green bottle.
Hoang followed Cox into the store. Hoang was wearing a red shirt with a Shell emblem. After Cox bought his cigarettes, he asked Hoang for a book of matches. Hoang replied, Cox persisted, "You don't have matches for your—your— your customers who buy cigarettes?" Hoang replied, In response to this apparent breakdown in customer service, Cox remonstrated, "Is that any way to talk to your customers?"
Hoang then repeated the epithet, reached down behind the store counter and came out with a pipe. Hoang advanced on Cox from behind the counter in what Cox described as a threatening manner, repeating the epithet over and over again. Frightened, Cox turned to leave the station, but was stopped just outside the doorway by the two males who had been in the car with Hoang. They stood side by side in front of Cox, menacing him with their fists up. As Cox turned for "a split second" to check on Hoang, one of the males, whom Cox described as a young Vietnamese, hit him above the right eye with a fist bolstered by "a small wooden sort of a block" in its grip.
Before he could react, Cox felt Hoang strike him in the back of his neck and lower head with what he believes was the pipe. Driven to his knees or nearly so, Cox felt like he was going to black out. Cox regained his feet, however, and ran toward Ward Avenue in an effort to get away, with the two males chasing and Hoang in pursuit with the pipe. Cox slipped and fell before he could get to the sidewalk on Ward Avenue. On his knees facing the ground, Cox felt his pursuers strike him several more times on his back.
Cox finally managed to escape and called 911 on a pay phone. An ambulance took him to Straub Hospital, where they stitched up a cut above his right eye. Cox claimed that the blood from that cut had "covered" his shirt. Cox complained at trial that he continues to suffer daily headaches, blackouts and vision problems as a result of the incident.
On cross-examination, Cox admitted that the police report of his statement following the incident described the initial disagreement as a "verbal argument." He also admitted, "I may have told [Hoang] `F you' back." Cox conceded that he may have raised his voice at Hoang, but denied yelling at him. He categorically denied telling Hoang, Cox confirmed that he did not know who was hitting him after he slipped and fell near the sidewalk on Ward Avenue. Cox described the two males with Hoang as "Asian." In particular, Cox described the male who hit him over the right eye as a tall, "Asian man or Vietnamese man" with light skin and bleached blond hair. Cox estimated Hoang to be "five-three, hundred and seventy pounds." Cox gave his height as "six-two" and his weight as "two hundred and thirty-five pounds."
The State then presented the testimony of Kathleen McGraw (McGraw). McGraw related that she was using the pay phone at the gas station at about 9:00 p.m. on the night of the incident. She saw "a [Caucasian] man little bit poorly dressed" approach a car located between the pay phone and the station office. She could not hear what was said because she was on the phone, but she did hear "something about matches." Two males in the car, whom she described as "an Asian male and [a] Caucasian male" with blond hair, seemed to be very angry at the poorly dressed man.
McGraw testified that "a lot of anger and, you know, arguing" ensued. The blond Caucasian male, the more vehement of the two in the car, jumped out from the passenger side of the car looking "very, very upset." The object of his anger started to walk away, but the blond Caucasian male commenced "a lot of . . . pushing and all that." The Asian male seemed reluctant at first, but then he, too, went after the poorly dressed man. At that point Hoang, wearing "a red shirt and dark color pants," emerged from the station "with something in his hands." He, along with the Asian male and the blond Caucasian male, pursued the man to the edge of the street, where Hoang hit their quarry in the back. The other two men "were pushing him around also."
Frightened by the spectacle, McGraw left and went back to her residence nearby. She later returned, however, and spoke with the police investigating the incident. She showed the police where Hoang had come from when he was carrying the pipe. A police officer went there, inside the station office, and retrieved a pipe. McGraw identified the pipe as the object Hoang had in his hand when he came out of the station.
...
To continue reading
Request your trial
-
Kapuwai v. Honolulu, Dept. of Park and Rec.
...that such a test would be relevant to the LIRAB's decision on attorney's fees on remand. Similarly, in State v. Hoang, 94 Hawai`i 271, 272-73, 12 P.3d 371, 372-73 (App.2000), the defendant argued on appeal that the trial court had failed to obtain a waiver of his right to testify, and that ......
-
State v. Phua, SCWC–11–0000686.
...HRPP Rule 32(a) because it did not personally address the defendant regarding allocution. See also State v. Hoang, 94 Hawai‘i 271, 281, 12 P.3d 371, 381 (App.2000) (stating that the court must solicit allocution directly from the defendant at sentencing).Here, Phua argues that "the district......
-
State v. Phua
...HRPP Rule 32(a) because it did not personally address the defendant regarding allocution. See also State v. Hoang, 94 Hawai‘i 271, 281, 12 P.3d 371, 381 (App.2000) (stating that the court must solicit allocution directly from the defendant at sentencing).Here, Phua argues that “the district......
-
State v. Gordon
...1255 (2012) (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......