78 Hawai'i 383, State v. Okumura
| Decision Date | 04 May 1995 |
| Docket Number | No. 16365,16365 |
| Citation | 894 P.2d 80,78 Hawaii 383 |
| Parties | 78 Hawai'i 383 STATE of Hawai'i, Plaintiff-Appellee, v. Leslie M. OKUMURA, Defendant-Appellant, and Stephen Kona, Defendant. STATE of Hawai'i, Plaintiff-Appellee, v. Leslie M. OKUMURA, Defendant-Appellant, and Rogelio Mata, also known as Roger, Defendant-Appellant, and John Doe, Defendant. |
| Court | Hawaii Supreme Court |
Reinette W. Cooper of Cooper and Ireton, Honolulu, for defendant-appellant Leslie M. Okumura.
Mark S. Kawata, Honolulu, for defendant-appellant Rogelio Mata.
Dwight K. Nadamoto, Deputy Pros. Atty., Honolulu, for plaintiff-appellee State of Hawai'i.
Before MOON, C.J., KLEIN, NAKAYAMA and RAMIL, JJ., and WONG, Family Court Judge, In Place of LEVINSON, J., Recused.
Following a consolidated jury trial, defendant-appellant Leslie M. Okumura was convicted of two counts of Burglary in the First Degree and one count of Criminal Conspiracy (to commit burglary), and defendant-appellant Rogelio Mata was convicted of one count of Criminal Conspiracy (to commit burglary). Okumura appeals from his convictions and sentence in No. 16365 and Mata appeals from his conviction and sentence in No. 16415. 1
For the reasons set forth below, we vacate Okumura's conspiracy conviction and remand for a new trial on that charge, affirm Okumura's burglary convictions but remand for clarification of the record with respect to the circuit court's decision to impose extended terms of imprisonment on Okumura, and affirm Mata's conviction and sentence.
According to the prosecution's theory of the case, Okumura and Mata (collectively, the Appellants) were involved in several burglaries in the Hawai'i Kai area. Mata was not alleged to have participated in any of the burglaries but was alleged to have identified homes to burglarize and, as an officer of the Honolulu Police Department (HPD), to have kept his cohorts informed of the police investigations of the burglaries. Okumura, who is a locksmith by trade, allegedly committed the actual burglaries with the assistance of Alvin Morgan, Stephen Kona, and Richard Geffken. Morgan and Kona subsequently entered into plea agreements with the prosecution and testified against Okumura and Mata. Geffken did not participate in the trial in any manner and the record does not reveal the status of the single charge against him.
On January 27, 1990, the Parsa residence was burglarized. Fourteen year old Natalie Parsa was in the residence at the time and called the police to report the burglary.
Morgan testified that he, Okumura, and Kona committed the burglary following a tip from Mata. Okumura entered the residence from a second floor balcony sliding door Morgan acted as a lookout, and Kona drove the getaway car. Mata had told them that no one would be home and that cash and jewelry would be there.
Kona testified that he, Okumura, and Morgan committed the burglary. After the burglary, Mata called and told Kona not to mention his name.
Touri Parsa testified that Mata and her brother were friends and that Mata had met her brother on the driveway of the residence on previous occasions. Among the items taken were $5000 in cash, a gold Rolex watch, jewelry, and a camera.
Okumura denied ever having been to the Parsa residence, but admitted that on one occasion he had bought jewelry and Rolex watches from Morgan. Mata denied any involvement in the Parsa burglary.
On March 31, 1990, the Ihara residence was burglarized. No one was home at the time but Richard Fukuda, who lived across the street and was the Iharas' attorney, apparently saw some suspicious activity and notified the police of a possible burglary after midnight on the morning of April 1, 1990.
Morgan testified that he, Okumura, and Geffken committed the burglary based on a tip from Mata. Okumura entered the house using a key which he had brought, Morgan entered the house briefly but primarily acted as a lookout outside, and Geffken drove. During the burglary, Okumura called Mata on his cellular phone and told Mata about the burglary and arranged to meet at a Zippy's restaurant later.
Kona was apparently not involved in the actual commission of the Ihara burglary but testified that Mata had wanted the house burglarized and was planning to tell Okumura or Kona when the Iharas would be on vacation.
Mata denied involvement in the burglary but admitted that he had an office above the Iharas' garage and that he had referred Okumura to the Iharas to open a vault. Okumura denied involvement in the burglary but admitted that he had been to the Ihara residence on previous occasions to work on the vault and to fix the door on Mata's office.
On July 15, 1990, the Sano residence was burglarized. The Sanos were out of town on that day and no one was at home when the burglary occurred. Ethel Isara, who was housesitting, discovered the burglary later and called the police.
Kona testified that he and Okumura committed the burglary based on a tip that Okumura had been given. Kona dropped Okumura off and picked him up but was unaware of any of the details of the burglary.
Morgan was apparently not involved in this burglary and did not testify concerning it.
Mata denied any involvement in the burglary but admitted that he knew the Sanos would be out of town because HPD Officer Guy Nahale, the Sanos' son-in-law who resided at the house, had told him to watch the house while they were away. Okumura denied any involvement in the burglary.
On July 18, 1990, the Kobayashi residence was burglarized. Toko Kobayashi and his fiancee were at home at the time, interrupted the burglars, and called the police.
Morgan testified that he, Okumura, and Kona committed the burglary following a tip that Okumura had been given. Okumura entered the house through a rear bedroom window, Morgan acted as a lookout, and Kona drove. After they were discovered, Morgan and Okumura fled on foot. While running away, Morgan dropped a can of mace and Okumura's cellular phone that he had been carrying.
Kona testified that he, Okumura, and Morgan committed the burglary. While Kona was waiting to rendezvous with Morgan and Okumura, he met with Mata who was responding to the burglary report. After Kona picked up Okumura, they returned to the scene to look for Morgan and the cellular phone. While searching, two Japanese men and a "haole" 2 lady approached the car and shone a light inside. Sometime after the burglary, Kona spoke with Mata who told him not to worry because the description was of a Mexican and not to mention their conversation to anyone.
Kobayashi testified that after discovering the burglary, he saw two people running from his home. Kobayashi pursued them and got close enough to them to get a look at their faces before they jumped a fence and ran away. Later that night, Kobayashi found a cellular phone. Then, Kobayashi saw a suspicious slow-moving car and as it drove by he shined his flashlight in the window. When talking to police later, Kobayashi described the men as one caucasian and one latin or mexican, probably young. Kobayashi knew Mata from a previous burglary when Mata had been an investigating officer and had come to the house.
The cellular phone that Kobayashi found was identified by a Honolulu Cellular employee as belonging to Okumura.
Okumura denied ever having been to the Kobayashi residence but admitted that he lent Morgan his cellular phone and that he knew Morgan and Kona were planning to commit a burglary that night. Mata denied any involvement in the burglary.
Charges, Plea Agreements, Etc.
About a week after the Kobayashi burglary, Kobayashi was shown photographic arrays that included Okumura and asked if he could identify any of the perpetrators. Kobayashi did not identify anyone because he did not feel confident accusing anyone based on a photograph and did not want to make a mistake. Kobayashi was shown a second photographic array on September 11, 1990, and again refused to make an identification.
The following day, on September 12, 1990, a preliminary hearing was held. During the hearing Kobayashi testified regarding the facts and circumstances surrounding the burglary of his home. He was asked if any of the perpetrators were in the courtroom. At the time, there were about a dozen people in the courtroom: Okumura, Okumura's counsel, Kona, Kona's counsel, a sheriff, the prosecutor, and few other people in the gallery. Okumura, Kona, and their attorneys were all seated at the defense table. Okumura was dressed in green prison fatigues and his feet were shackled. Kona was dressed in civilian clothing and both attorneys were in courtroom attire. When Kobayashi was asked if he could identify any perpetrator in the courtroom, he looked around the courtroom for approximately forty seconds before identifying Okumura. He identified Okumura by name by reading his name off of his prison uniform. He stated that he was 99% sure of the identification.
On September 21, 1990, Okumura and Kona were charged by way of complaint with committing five burglaries including the Kobayashi burglary. The four burglaries other than the Kobayashi burglary are not at issue in the instant appeal. 3 On January 23, 1991, Okumura was indicted for the Ihara, Parsa, and Sano burglaries.
On May 6, 1991, Kona entered into a plea agreement with the prosecution whereby in exchange for his truthful testimony, the prosecution would drop three charges of first degree burglary, Kona would plead guilty to eight counts of second degree burglary, and the prosecution would recommend a sentence of five years probation with no jail time. Morgan also entered a plea agreement with the prosecution. A plea agreement had initially been entered into on September 11, 1990, the day before the aforementioned preliminary hearing, but because Morgan had not had an attorney present, the agreement was renegotiated as of ...
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