State v. Hoang
Decision Date | 10 July 2000 |
Docket Number | No. 21869.,21869. |
Citation | 93 Haw. 333,3 P.3d 499 |
Parties | STATE of Hawai`i, Petitioner-Appellee, v. Tan T. HOANG, Respondent-Appellant. |
Court | Hawaii Supreme Court |
Theodore Y.H. Chinn, Deputy Public Defender, on the motion, for respondent-appellant.
Alexa Fujise, Deputy Prosecuting Attorney, in opposition, for petitioner-appellee.
Respondent-appellant Tan T. Hoang seeks reconsideration of our decision in State v. Hoang, No. 21869 (Hawai`i Apr. 17, 2000) [hereinafter, the April 17, 2000 order], wherein we vacated the holding of the Intermediate Court of Appeals (ICA), depublished its February 29, 2000 opinion, and affirmed the judgment, conviction, and sentence filed July 24, 1998. In our April 17, 2000 order, we noted the absence of the transcript of Hoang's April 8, 1998 arraignment hearing (the arraignment transcript) in the record on appeal, without which the ICA "did not, and this court does not, have a basis upon which to review the point of error raised in the present appeal." In his motion for reconsideration and accompanying memorandum of law, Hoang argues that the arraignment transcript was unnecessary for the disposition of his appeal. Alternatively, if this court chooses not to vacate its April 17, 2000 order, Hoang requests that this court address the merits of his remaining points of error on appeal. For the reasons discussed below, we sustain our April 17, 2000 order as it relates to Hoang's failure to include the arraignment transcript in the record on appeal. However, because the ICA did not address his remaining points of error on appeal, we grant Hoang's motion for reconsideration in part, modify our April 17, 2000 order by vacating our affirmance of the judgment, conviction, and sentence, and remand this case to the ICA to address Hoang's remaining points of error.
In the instant case, Hoang appealed from his conviction of and sentence for assault in the third degree. On appeal before the ICA, Hoang raised several points of error: (1) the prosecution failed to file a written charge or make an oral charge; (2) the trial court failed to obtain an on-the-record waiver of Hoang's right to testify; (3) the sentencing court failed to obtain an on-the-record waiver of Hoang's right of presentence allocution without affording him an opportunity to speak on his own behalf; and (4) there was insufficient evidence to support his conviction. The ICA agreed with Hoang's first point of error and held that, because the prosecution failed to formally charge Hoang, notwithstanding Hoang's on-the-record waiver of an oral reading of the charge, the trial court did not have jurisdiction over Hoang's criminal case. Consequently, the ICA vacated Hoang's conviction and sentence. The ICA did not address Hoang's remaining points of error.
Petitioner-appellee State of Hawai`i (the prosecution) timely filed an application for a writ of certiorari to review the ICA's opinion, which this court granted. Noting that the record failed to include the arraignment transcript, we held that Hoang failed to meet his burden of providing the relevant transcript and vacated the ICA's opinion. Specifically, the order stated:
By order dated April 20, 2000, the February 29, 2000 opinion of the ICA was depublished. Hoang timely filed this motion for reconsideration.
In his motion for reconsideration, Hoang contends that his arraignment transcript is unnecessary for this court to address his point of error regarding the prosecution's failure to formally charge him. Alternatively, Hoang contends that this court should address his remaining points of error on appeal that were not addressed by the ICA.
Hoang contends that he and the prosecution both agree as to the facts of his arraignment, including the fact that he waived the reading of the oral charge and that the prosecution failed to formally charge him. Hoang contends that this court may consider these facts as admissions by both himself and the prosecution in order to address his point of error because both parties treat the failure to formally charge him at his arraignment and trial as true. Moreover, because his point of error is one of first impression in Hawai`i, Hoang contends that this court should vacate its April 17, 2000 order and discuss the alleged error to provide guidance to the trial courts. Relying upon dictum in State v. Apao, 59 Haw. 625, 627-28, 586 P.2d 250, 253-54 (1978), superceded by statute as acknowledged in Briones v. State, 74 Haw. 442, 456 n. 7, 848 P.2d 966, 974 n. 7 (1993), Hoang maintains that the arraignment transcript is unnecessary for this court to review his point of error regarding the oral charge. Hoang's reliance upon Apao, however, is misplaced.
In Apao, the defendant alleged that the trial court erred when it failed, inter alia, to dismiss his grand jury indictment. Id. at 627, 586 P.2d at 253. Although the defendant failed to include the transcript of the grand jury hearing that lead to his indictment in the record on appeal, this court stated that "the briefs of appellee and appellant agree as to the following facts and we accept the facts as admissions." Id. at 627-28, 586 P.2d at 253-54. This court regarded the following general facts of the grand jury proceeding as admissions:
On November 20, 1974, the grand jury heard testimony connecting appellant with the murder of the victim. Three witnesses were called to testify. The first witness, police officer William Ornellas, testified that appellant was involved in a prior murder prosecution as a defendant, and the victim had been a witness against the appellant in the prior case. Following the testimony of Ornellas, two other witnesses, Gilbert Mattos and detective Louis Souza, testified as to the events of July 20, 1974, the day the victim was killed.
Id. at 628, 586 P.2d at 254. However, as to the defendant's contention that Officer Ornellas's grand jury testimony biased the grand jury against him, this court stated that "[t]he record is insufficient to show that the alleged improper testimony of Officer Ornellas clearly influenced the jurors[.]" Id. at 638, 586 P.2d at 259 (emphasis added). Accordingly, this court affirmed the trial court's ruling that the grand jury indictment was proper. Id.
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