State v. Bailey, 8106

• Decision Date: 16 July 1982
• Docket Number: No. 8106,8106
• Citation: 65 Haw. 129,648 P.2d 192
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Peter L. BAILEY, Defendant, and Francis Talo, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 192

648 P.2d 192

65 Haw. 129

STATE of Hawaii, Plaintiff-Appellee, v. Peter L. BAILEY, Defendant, and Francis Talo, Defendant-Appellant.

No. 8106.

Supreme Court of Hawai'i.

July 16, 1982.

Syllabus by the Court

1. In passing on a motion for a judgment of acquittal, the trial court must determine, upon the evidence viewed in light most favorable to the government and in full recognition of the province of the jury, whether a reasonable mind may fairly conclude that the defendant was guilty beyond a reasonable doubt.

2. Where two previous trials had resulted in mistrials by reason of jury disagreement, trying defendant a third time was not a violation of his constitutional protection against double jeopardy, absent a showing that defendant was subjected to undue harassment and oppression.

3. Based on the record herein, no abuse of discretion was shown in the trial court's denial of the motion to dismiss because of two previous trials and mistrials.

Mal Gillin, Honolulu, for defendant-appellant.

Vicente F. Aquino, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., LUM, NAKAMURA and PADGETT, JJ., and MENOR, Retired Associate Justice, in place of HAYASHI, J., disqualified.

PER CURIAM.

Defendant-Appellant Francis Talo appeals his jury conviction for murder. At the outset, we note several glaring deficiencies in appellant's opening brief. Appellant has cited Rules 72 and 73 of the Hawaii Rules of Civil Procedure as a basis for jurisdiction although this is an appeal from a criminal conviction. We also note that appellant has filed his notice of appeal three days outside the ten-day period set forth under Rule 37(c), Hawaii Rules of Penal Procedure. Had this been a civil appeal, the appropriate sanction would be a dismissal. However, for the reasons set forth by our Intermediate Court of Appeals in State v. Allen, 2 Haw.App. 606, 638 P.2d 338 (1981), we assume jurisdiction.

Appellant's brief raises two issues on appeal. First, that the trial court erred in denying his motion for a judgment of acquittal where the evidence to prove complicity was speculative and insufficient, and second, that the trial court erred in denying his motion to dismiss on the ground of double jeopardy. Upon a review of the record before us, we find both contentions to be without merit and accordingly, affirm.

With respect to the first contention, it is a well-settled rule that in passing on a motion for a judgment of acquittal, the trial court must determine, upon the evidence viewed in the light most favorable to the government and in full recognition of the province of the jury, whether a reasonable mind might fairly conclude guilt beyond a reasonable doubt. State v. Yoshimoto, 64 Haw. 1, 635 P.2d 560 (1981); State v. Brighter, 62 Haw. 25, 608 P.2d 855 (1980). The rule requires the trial court judge, either upon a motion of a defendant or on its own motion, to enter a judgment of acquittal if at the end of the prosecution's case there is insufficient evidence to support a prima facie case. State v. Broad, 61 Haw. 187, 600 P.2d 1379 (1979). Here, there was ample evidence from which a jury could have found appellant guilty as an accomplice in the murder of Carol Olandy.

Witness Kim Okudara testified that on April 29, 1979, at approximately 11:30 a.m., she, along with appellant and co-defendant Peter Bailey parked next to a maroon Z-28 Chevrolet Camaro in the Pearl City Shopping Center parking lot. It was stated that Bailey and appellant were looking for a car they could steal and planned to get rid of the driver until they finished a job so that the car would not be reported as missing. When the driver, Carol Olandy, returned to her car, Bailey started a conversation with her and asked her if she wanted to smoke some marijuana with them. Olandy agreed and Bailey accompanied her while they drove to a more isolated spot of the parking lot while Okudara and appellant followed. Okudara stated that after they were parked, she heard a click which she identified as the cocking of a gun. Bailey then told appellant and Okudara to follow them. After proceeding for about five minutes on Kamehameha Highway and into a Waipahu residential area, Bailey signaled Okudara to pull over. Appellant then got into the car occupied by Bailey and Olandy. Okudara then followed them up Kunia Road but pulled off to use the restroom at the golf course nearby while Bailey, appellant and Olandy drove into the pineapple fields. Okudara stated that she remained at the restroom for about ten minutes until she saw the car coming out of the fields. Okudara subsequently returned home alone. At approximately 1:45 that afternoon, Bailey visited Okudara at her home in the maroon Z-28 and left shortly thereafter.

At approximately...