State v. Woo Won Choi

• Decision Date: 06 November 1989
• Docket Number: Nos. 21885-9-,23209-6-I,s. 21885-9-
• Citation: 55 Wn.App. 895,781 P.2d 505
• Parties: STATE of Washington, Respondent, v. WOO WON CHOI, Appellant. In the Matter of the Personal Restraint Petition of WOO WON CHOI, Petitioner.
• Court: Washington Court of Appeals

Page 895

55 Wn.App. 895

781 P.2d 505

STATE of Washington, Respondent, v. WOO WON CHOI, Appellant.

In the Matter of the Personal Restraint Petition of WOO WON

CHOI, Petitioner.

Nos. 21885-9-I, 23209-6-I.

Court of Appeals of Washington,

Division 1.

Nov. 6, 1989.

Marc R. Lampson, Washington Appellate Defender, for appellant.

Dean Lum, King County Deputy Pros. Atty., for respondent.

PEKELIS, Judge.

Woo Won Choi was convicted in a bench trial of first degree assault. On appeal, he alleges that the trial court erred in (1) failing sufficiently to inform him of his right to an interpreter; (2) failing to insure that his jury waiver was knowing, voluntary and intelligent; and (3) finding sufficient evidence of the "intent to kill" element of first degree assault under the statute then in effect, RCW 9A.36.010. ¹ Choi further claims that he was denied the effective assistance of counsel due to counsel's waiver of an interpreter, waiver of jury, and failure to raise a diminished capacity defense due to intoxication.

Choi also files a personal restraint petition which has been consolidated with this appeal. The issues raised are the same. ²

I. Facts on Appeal ³

On the evening of September 5, 1987, Woo Won Choi, a Korean immigrant, was a customer at the Golden Nugget cardroom in Renton. During the course of the evening, he happened to sit at a table with John Lucena. At one point, the two had an altercation when Choi reached across Lucena's place at the table. Lucena believed Choi was trying to take some of his poker chips, but Choi claimed he was merely reaching for Lucena's cigarette lighter. Lucena pushed or slapped Choi's hand and angry words were exchanged briefly. Choi left the game at around 1:30 or 1:45 a.m., at least several minutes before Lucena.

Choi testified that as he was driving away from the Golden Nugget he saw Lucena make an obscene gesture to him as Lucena's car passed him. At that point Choi began following Lucena because Choi had plans to leave town the next day and wanted to talk to Lucena in order to "straighten up" with him before leaving. He had thoughts of forgetting the incident and turning his car away several times, but decided to continue following Lucena. At one point, Lucena stopped his car and Choi pulled up along side him on the left. Choi testified that he then rolled down his passenger window and thought he saw Lucena move to pull out a gun. Although he did not see a gun, he believed Lucena was going to shoot him. Choi ducked down, reached for his own gun which was under the seat of his car, and made "a couple wild shot[s]." Choi testified that he did not intend to kill Lucena.

Lucena then drove away, and Choi, who was unfamiliar with the neighborhood, continued to follow Lucena until he reached a major road. A few minutes later he pulled his car over to get out to urinate, heard the police coming, and laid down in the brush. He testified that at that point he was almost unconscious. He then heard a dog barking and climbed over a fence to escape. He was found by an officer of the K-9 unit and his dog inside a fenced gas metering station. Before the officers could get him out of the fenced area, Choi passed out.

Lucena's version of the event was somewhat different. He testified that after leaving the Golden Nugget he did not see Choi until shortly before he reached his home when he noticed that a car was following him closely. At that point, he pulled over to the right, and stopped his car. He looked to the left and saw Choi. Choi's passenger window was down. Lucena then saw Choi raise a gun and Lucena threw his arm up and "dove to the right." Two shots were fired, one of which passed through Lucena's arm. The other round damaged the left side of Lucena's car. He was able to pull his car away. Lucena said he did not make any motion toward Choi nor did he reach for anything before Choi fired at him.

Choi testified that at a family dinner earlier that evening he had a couple of beers to drink, and had a couple more after the family left. Employees of the Golden Nugget testified that he had two or three beers served to him there. One employee gave her opinion that he did not appear to be intoxicated. Twice during his cross examination Choi testified that he was drunk on the evening in question.

Choi's counsel did not place the issue of whether Choi's intoxication had affected his ability to form an intent to kill before the fact-finder. In counsel's presentence report, he stated that he investigated the intoxication issue and did not pursue it because the medical record did not support that theory.

Prior to trial, the court stated that it had notice of a possible language problem. The trial court questioned Choi's counsel regarding his client's English language ability, and counsel replied that he did not believe there was any difficulty. Mr. Murray Guterson, trial counsel for Choi, informed the court that

[n]ot only is the defendant here, but his brother's here, who speaks English quite well, and in my many, many meetings with the defendant, I'm convinced that he'll understand questions put to him by both myself and Mr. Lum or by the Court.

If anything develops that he's unable to understand the testimony of some witness and if I feel at all uncomfortable in explaining to him the thrust of what was said because of some question on his part, I think I could make arrangements to have someone come in, but I really think it's not necessary.

The court apparently accepted counsel's assurances that there was no need for an interpreter and addressed Choi directly concerning his proposed waiver of a jury trial. The court explained the differences between bench and jury trials and that Choi had a right to a jury trial. Choi answered "yes, sir" when asked if he understood his rights, if his counsel had explained them to him, and if it was his desire to waive his right to a jury trial. Choi then signed a written jury waiver.

The trial court found Choi guilty of first degree assault. Choi brings this timely appeal.

II. Waiver of Interpreter

Choi first argues that his Sixth Amendment rights to confront witnesses and to be present at trial were denied by the trial court's failure to fully inform him of his right to an interpreter and to inquire directly of Choi whether he needed an interpreter.

Choi made no objection at trial on this issue. Thus, in order to determine whether the alleged error is reviewable, we must decide whether the trial court's actions, or inactions, constituted manifest error affecting a constitutional right. See State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988); RAP 2.5(a)(3).

The federal cases hold that the right to an interpreter affects a defendant's Sixth Amendment right of confrontation and the right inherent in a fair trial to be present at one's own trial. See United States ex rel. Negron v. State of New York, 434 F.2d 386, 389 (2nd Cir.1970). The right rests fundamentally on the notion that "no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment." United States v. Carrion, 488 F.2d 12, 14 (1st Cir.1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974). Since the right is of constitutional stature, we accept review. ⁴ See Scott, 110 Wash.2d at 688, 757 P.2d 492.

Initially, we must determine precisely the trial court's obligations. Choi argues that the court should have advised him that the waiver of a right to an interpreter is his decision to make, rather than counsel's or the court's, and that the court should also have explained to him the nature and effect of a waiver. See United States v. Tapia, 631 F.2d 1207, 1209 (5th Cir.1980).

The federal courts have held that whenever put on notice that there may be some significant language difficulty, the trial court should exercise its discretion to determine whether an interpreter is needed. Carrion, 488 F.2d at 14-15; accord State v. Korich, 130 Wash. 243, 246, 226 P. 1016 (1924), appeal dismissed, 271 U.S. 690, 46 S.Ct. 472, 70 L.Ed 1153 (1926); State v. Trevino, 10 Wash.App. 89, 94-95, 516 P.2d 779 (1973), review denied, 83 Wash.2d 1009 (1974) (both state cases pertaining to interpreters to assist witnesses). The court "should make unmistakably clear" to a defendant that he has a right to a court-appointed interpreter at trial if the court determines that one is needed. (Emphasis added.) Carrion, 488 F.2d at 15; Negron, 434 F.2d at 390-91.

Thus, the requirement that the court advise the defendant directly about the waiver of a right to an interpreter does not come into play until the court has determined that an interpreter is necessary. If the defendant's language skills are adequate enough to understand the trial proceedings and to present his defense, he has no right to an interpreter and there is no issue relating to waiver.

The trial court inquired of Choi's counsel whether there was a language problem. Although it might have been prudent for the court to engage in a direct colloquy with Choi to determine the extent of his language ability, we do not find any authority which compels it to do so. Moreover, in reviewing the facts of Carrion, cited by Choi, we note that the court did not require a formal hearing on whether a translator was necessary. See Carrion, 488 F.2d at 15. In fact, the Carrion court emphasized that the trial court was to be accorded wide discretion in determining the need for an interpreter. Carrion, 488 F.2d at 14. Here, where Mr. Guterson advised the court that he had had "many, many meetings" with Choi, that he was confident that Choi could understand and answer questions, that Choi's brother was present to assist, and that counsel would advise the court if problems occurred, we find no error in the court's relying on counsel's representation in concluding that Choi did not need an interpreter.

Finally, even if the requirement to inquire of the defendant directly were placed on...