79 Hawai'i 219, Raines v. State, 16705

• Citation: 79 Hawaii 219,900 P.2d 1286
• Decision Date: 11 July 1995
• Docket Number: No. 16705,16705
• Parties: 79 Hawai'i 219 Todd James RAINES, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.
• Court: Supreme Court of Hawai'i

Page 1286

900 P.2d 1286

79 Hawai'i 219

Todd James RAINES, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee.

No. 16705.

Supreme Court of Hawai'i.

July 11, 1995.

As Amended on Grant of Clarification

or Reconsideration July 25, 1995.

Peter Van Name Esser (Willard J. Peterson with him on the briefs, of Peterson & Esser), Honolulu, for petitioner-appellant.

Caroline M. Mee, Deputy Pros. Atty., Honolulu, for respondent-appellee.

Before KLEIN, Acting C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and YIM, ^* Circuit Court Judge, in place of MOON, C.J., Recused.

KLEIN, Acting Chief Justice.

Todd James Raines was convicted of murder and two counts of forgery in 1985. He received a sentence of life imprisonment with the possibility of parole and two concurrent five-year prison terms. Although Raines filed a timely notice of appeal, he later withdrew it. Subsequently, Raines filed a petition for post-conviction relief, which the circuit court denied. Raines now appeals from the circuit court's findings of fact, conclusions of law, and order denying his petition for post-conviction relief.

I. BACKGROUND

Raines moved to Hawai'i from California in April 1984. In August of the same year, Raines's girlfriend, Joann Byers, joined him in Hawai'i. Raines and Byers subsequently rented an apartment from Raymond Wassinger. The "apartment" was a house that had been divided into two units; Wassinger lived in the second unit. A few weeks after moving in, Raines killed Wassinger by striking five blows to his neck and head with a machete. After dumping Wassinger's body in a ditch alongside the Likelike Highway and cleaning up the scene of the crime, Raines and Byers left the apartment and stayed with friends in Waik'ik'i for a few days. During that time, Raines cashed two checks worth $1100.00 that were drawn on Wassinger's account. Raines and Byers then had their friends purchase airline tickets for them under assumed names and moved to Seattle.

On February 6, 1985, the O'ahu grand jury indicted Raines and Byers on charges of murder and forgery. On March 7, 1985, Raines and Byers were arrested in Seattle and extradited to Hawai'i. Less than two weeks later, Byers entered into a plea agreement whereby the prosecution agreed to drop the murder and forgery charges against her, in exchange for giving testimony against Raines and pleading guilty to a charge of hindering prosecution.

Deputy Public Defender Milton Tani was assigned to represent Raines. On the eve of trial, Raines's father obtained private counsel, Erick T.S. Moon, to handle the defense. When jury selection began on July 29, 1985, Tani moved to withdraw as counsel. The court denied Tani's motion to withdraw and required him to remain as standby counsel because (1) Moon was not yet prepared to handle the trial alone, (2) the court did not want to grant a continuance after jury selection had already begun, and (3) the prosecution had already subpoenaed dozens of witnesses for the trial. Moon and Tani jointly represented Raines for the remainder of the trial.

During opening statements, the prosecutor made the following comments:

So Todd Raines, we know, killed Ray Wassinger to get approximately $1,100 from him....

....

After hearing all the evidence, ... I will ask that you retire to the jury deliberation room, [and] return verdicts of guilty as charged in this case. I believe the evidence will be overwhelming. The evidence will be overwhelming as to what happened. The credible evidence will be overwhelming as to what happened.

(Emphases added.) The prosecutor also mentioned Raines's failure to make a statement after his arrest. Defense counsel objected, whereupon the court gave a cautionary instruction regarding a defendant's constitutional right to remain silent and directed the jury to disregard the prosecutor's prior statement. The prosecutor then indicated that Raines declined to waive this constitutional right, prompting the defense to renew its objection. The court cautioned the prosecutor not to persist, but ruled that a mistrial was not necessary in light of the cautionary instruction.

Raines later testified that he was greatly upset by the fact that both he and Byers had caught Wassinger peeping in their windows several times. Raines also claimed that Wassinger entered their portion of the house on at least two occasions; Raines claimed that he was able to force the bigger and stronger man out on these occasions because Wassinger was drunk. Raines further testified that, on the day of the killing, he went on a hike and brought along a cane machete to cut through thick bushes and to cut down bananas and papayas. When he returned from the hike shortly after dark, at about 8:00 p.m., Raines was carrying the machete in a canvas beach chair. He saw someone at the bedroom window and confronted that person. What began as "rage" turned to fear because that person was a big man. During the ensuing scuffle, Raines realized that the man was Wassinger. After Wassinger purportedly came at him with raised hands, Raines stepped back, drew the machete out, and chopped it straight forward into Wassinger's face. Raines then testified that he spun his hands around and struck three rapid blows to the back of Wassinger's head and neck, completing a martial arts technique that he had learned.

After Raines testified, the State presented three rebuttal witnesses and both sides rested. Closing arguments followed but were not recorded. Raines does not allege that his trial counsels were ineffective in any way during the presentation of the evidence or during closing arguments.

Raines was subsequently convicted as charged and sentenced to life imprisonment with the possibility of parole for murder, and two concurrent five-year prison terms for forgery; he was also ordered to pay restitution for extradition expenses, funeral expenses, and the amount obtained with the forged checks. Raines filed a timely notice of appeal on October 17, 1985. On October 23, 1985, Tani withdrew as counsel, leaving Moon as sole appellate counsel. On March 18, 1986, Raines signed an affidavit approving the withdrawal of his appeal, which was withdrawn the following day.

On July 15, 1991, Raines filed a petition for post-conviction relief pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure (HRPP). ¹ At a subsequent hearing on the petition before Judge Richard Au, both Raines and Moon testified. Judge Au orally ruled as follows:

On balance, it would appear that the defendant did have meritorious grounds for an appeal on the matters, the legal matters, raised by the petitioner. But I'll find the material allegations for statements of the affidavit filed by the defendant in appeal No. 10970 to be true.

And, therefore, on that basis, I will find that the matter of the appeal was discussed with Mr. Raines, Mr. Michael Raines [the petitioner's father], and the defendant himself. That Mr. Raines, the Defendant Petitioner, was informed and believed that Mr. Michael Raines had informed Mr. Moon that he was no longer willing to pay attorneys fees, authorized Mr. Moon to withdraw the appeal.

I also find pursuant to Paragraph 7 that Mr. Moon was requested, but was unable to say what the chances of success on appeal were. And that the defendant did concur with the withdrawal of the appeal. He did understand the same and he understood that the judgment would stand.

I'll find the waiver to have been voluntarily, intelligently and knowingly made. And that information provided to the defendant was within the range of competence under the demand of attorneys in criminal cases under the circumstances. And therefore, I'll deny the Petition. I'll ask Mr. Takata [the prosecutor], that you prepare findings and the order of the court.

Judge Au thereafter retired from the bench before the findings and order could be filed. On January 21, 1993, Judge I. Norman Lewis signed the order "for" Judge Au. The relevant Findings of Fact (FOF) and Conclusions of Law (COL) stated:

[FOF] 6. Petitioner was convicted of murder and forgery. An appeal was discussed by Erick Moon with Petitioner and his father Michael Raines. A notice of appeal was filed. Petitioner understood his right to appeal but intelligently, knowingly, and voluntarily relinquished that right as evidenced by the Withdrawal of Appeal, Affidavit of Todd James Raines, and Order filed on March 18, 1986. Petitioner understood that if his appeal was withdraw [sic], that the judgment of conviction for murder and forgery would stand.

[COL] 1. Petitioner intelligently, knowingly, and voluntarily withdrew his appeal and thereby waived any and all grounds for appeal.

[COL] 2. Milton Tani's and Erick Moon's representation of Petitioner was within the range of competence demanded of attorneys in criminal matters.

[COL] 3. Milton Tani and Erick Moon raised all defenses crucial to Petitioner's case and asserted Petitioner's constitutional rights.

II. STANDARDS OF REVIEW

The scope of a trial court's authority is a question of law reviewed under the right/wrong standard. See In re Judicial Determination of Death of Elwell, 66 Haw. 598, 670 P.2d 822 (1983). See also In re Estate of Holt, 75 Haw. 224, 857 P.2d 1355 (questions of law reviewed under right/wrong standard), reconsideration denied, 75 Haw. 580, 863 P.2d 989 (1993).

The disposition of an HRPP Rule 40 petition is based on FOF and COL. HRPP Rule 40(g); Domingo v. State, 76 Hawai'i 237, 243, 873 P.2d 775, 781 (1994). Factual findings are reviewed under the clearly erroneous standard. Dan v. State, 76 Hawai'i 423, 428, 879 P.2d 528, 533 (1994). An appellate court may freely review conclusions of law and the applicable standard of review is the right/wrong test. Id.

III. DISCUSSION

A.

In civil trials, "[t]he normal rule is that only the judge who conducted the trial may enter a decision in a case." In re Judicial Determination of Death of Elwell, 66 Haw. 598, 601, 670 P.2d 822, 824 (1983) (citing ...