81 Hawai'i 309, State v. Vinge

• Decision Date: 13 May 1996
• Docket Number: No. 16995,16995
• Parties: 81 Hawai'i 309 STATE of Hawai'i, Plaintiff-Appellee, v. Daniel VINGE, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1210

916 P.2d 1210

81 Hawai'i 309

STATE of Hawai'i, Plaintiff-Appellee, v. Daniel VINGE, Defendant-Appellant.

No. 16995.

Supreme Court of Hawai'i.

May 13, 1996.

Joy Yanagida, on the briefs, Wailuku, for defendant-appellant.

Mark R. Simonds, Deputy Prosecuting Attorney, County of Maui, on the briefs, Wailuku, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice.

Defendant-appellant Daniel Vinge was convicted on several counts related to the robbery of Honsport Sporting Store (Honsport) at Ka'ahumanu Shopping Center in Kahului, Maui, Hawai'i. Vinge argues the following points of error on appeal: (1) the trial court abused its discretion in denying Vinge's special jury instruction on eyewitnesses, because the prosecution's case hinged on a single eyewitness; (2) the trial court erred in denying Vinge's motion for judgment of acquittal on the charges of first degree burglary and attempted theft in the first and second degrees, because those charges were included offenses of robbery in the first degree, of which Vinge was convicted; (3) the trial court violated the due process clause of the Hawai'i Constitution when it failed to give notice that consecutive sentences were at issue; and (4) the trial court violated Vinge's first amendment right to freedom of association and the due process clause of the Hawai'i and United States Constitutions, when it relied on Vinge's membership with the "Hawaiian Homes Gang" as a basis for imposing consecutive sentences.

For the reasons discussed below, we affirm the court's judgment and guilty convictions for all charges except the included offenses of attempted theft in the first and second degrees, which we reverse. Furthermore, we vacate Vinge's sentence and remand this case for resentencing.

I. FACTS

A. The Honsport Robbery

On July 4, 1992, Vinge was seventeen-years-old. At approximately 1:00 a.m. on that day, three males broke into Honsport at the Ka'ahumanu Shopping Center on the island of Maui, triggering the store's silent burglar alarm. Responding to the alarm were Maui police officers Mark Aveiro and Chris Navarro.

While Officer Navarro checked the rear of the store, Officer Aveiro investigated the front. Through the glass entrance of Honsport, Officer Aveiro observed an individual wearing a red devil Halloween mask crouching behind a gun counter in the rear of the store. Officer Aveiro then entered the store through a broken display window and attempted to capture the culprit.

When Officer Aveiro entered the store, a different masked individual bearing a rifle bolted toward the broken display window at the front of the store. Before exiting the store, the individual paused and aimed his rifle at Officer Aveiro who quickly fired one round in defense. Startled, the individual dropped the rifle and fled the store through the opening in the store's display window.

A second masked individual sprinted down the main aisle of Honsport holding a machete. Like the first culprit, this second individual escaped through the broken display window.

A third individual, wearing a red devil Halloween mask and clutching a rifle, ran down the same main aisle toward the broken display window. Before exiting the store, this third individual pointed his rifle at Officer Aveiro. Before this assailant could shoot, Officer Aveiro fired his revolver. The third individual immediately yelled in pain but managed to escape through the opening of the display window in the front of the store.

Meanwhile, the shopping center security guard, Hillary Atai, was investigating the police activity in the front of the mall. Approaching the front of the mall, Atai observed the first and second individuals running down the mall. Although he did not see the face of the first individual, Atai did manage to get a better look at the second individual and ultimately identified him at trial as being Vinge.

B. Grand Jury Review

On July 10, 1992, six days after the incident, the prosecution presented a proposed indictment to the grand jury for review. The grand jury did not endorse the proposed indictment as a true bill because, inter alia, it determined that more evidence was necessary.

On July 24, 1992, the prosecution re-presented its case before the grand jury. The grand jury returned a true bill and indicted Vinge on the following seven counts: (1) first degree robbery, in violation of HRS § 708-840(1)(b)(ii) (1993); ¹ (2) first degree burglary, in violation of HRS § 708-810(1)(a) (1993); ² (3) first degree attempted theft, in violation of HRS § 705-500 (1993) ³ and 708- 830.5 (Supp.1992); ⁴ (4) second degree attempted theft, in violation of HRS §§ 705-500 (1993) and 708-831(1)(a) (Supp.1992); ⁵ (5) second degree criminal property damage, in violation of HRS § 708-821(1)(b) (1993); ⁶ (6) prohibited possession of a firearm, in violation of HRS § 134-7(d) (1993); ⁷ and (7) use of a deadly weapon in the commission of a crime, in violation of HRS § 134-51(b) (1993). ⁸

C. Vinge's Trial

Vinge's jury trial commenced on January 12, 1993. The prosecution presented circumstantial evidence that identified Vinge as the second individual involved in the Honsport robbery. The evidence included, inter alia, testimony indicating that: (1) Warren Perreira was the person shot during the Honsport robbery; (2) Perreira was an acquaintance of Vinge; (3) Warren Perreira and other neighborhood boys frequently visited Vinge's home; and (4) these boys referred to themselves as the "Hawaiian Home Boys." The defense countered with, inter alia, testimony indicating that the Hawaiian Home Boys consisted of neighborhood friends who lived in the Hawaiian Homes area, were proud of where they lived, watched television together, carpooled together, fished together, and were even active in a boxing club, called the Hawaiian Home Boxing Club.

The only direct evidence that placed Vinge near the scene of the crime was the eyewitness testimony of Atai.

1. Atai's Testimony

On direct examination, Atai testified that the lighting in the mall was "real good" on the morning of the robbery and that he remembered seeing the second individual run toward him for about five to ten seconds. The prosecution then asked Atai to look at Vinge for five to ten seconds. Atai responded that, "except for his haircut [at trial], ... there's no doubt that [Vinge] is the individual that I saw that [morning]."

Atai also testified on direct examination that, four days after the robbery, he participated in a photographic line-up and took thirty seconds to pick the photograph of the second individual, who was later identified as Vinge. In addition, Atai testified in detail as to the physical description of the second individual. On the evening of the Honsport robbery, Atai remembered that the second individual wore "a three tiered colored shirt with a green top, a red stripe through the center which was approximately six inches wide and a brown color bottom ... and dark colored trousers." Atai testified that the second individual was a local male with dark complexion, between one hundred twenty-five and one hundred forty pounds, and approximately five feet six inches tall. Atai further recalled that the second individual was not wearing a mask and had an oblong face and shoulder length hair with waves on the side "where it would flair out on the shoulders."

On cross-examination of Atai, defense counsel elicited, inter alia, that: (1) there was not a lot of lighting in the mall on the morning of the robbery; (2) the second individual was running very fast; (3) the second individual may have been wearing a mask; (4) at the July 10, 1992 grand jury hearing, Atai testified that the second individual wore light colored pants but also stated that "[he] [did]n't know exactly who it was, what [he] saw"; (5) when the police first asked Atai to describe the second individual within minutes after the robbery, Atai did not mention any facial characteristics, the length or color of the robber's hair, or the color of the robber's skin; and (6) during the photographic line-up, Atai had difficulty choosing between two photographs, but eventually narrowed his choice to Vinge's photograph because it "best resemble[d]" the individual he saw that night.

On redirect examination, Atai asserted that he had no doubt in his mind that Vinge was the person he saw on the night of the Honsport robbery.

2. Closing Arguments

During closing arguments, Vinge's defense counsel explained to the jury that:

The issue, and only real issue here, is whether or not the [prosecution] has proven beyond a reasonable doubt that Daniel Vinge was the one responsible....

[The prosecution] say[s] they have an eye witness. And that's what you have to determine, whether or not you can believe this eye witness, whether or not he's worthy of credibility, whether or not he's worthy of your belief. You put the weight on whether or not--what he said, how much you can--determine for yourself how much you're going to accept.... You have to determine for yourself whether or not you can find that Hillary Atai, the security guard, the only eye witness who says that ... Vinge is the one he saw, is worthy of your belief.

Vinge's defense counsel also argued, inter alia, that Atai's testimony was not credible and detailed several instances where Atai's description of the second robber was inconsistent and uncertain and seemed to improve over time.

3. Jury Instructions

The trial court denied defense counsel's request for a special jury instruction relating to eyewitness testimony that included, among other factors:

The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;

The stress, if any, to which the witness was subject at the time of the observation;

The witness' ability, following the observation, to provide a description of the perpetrator of the act;

The extent to which the defendant fits or does...