81 Hawai'i 358, State v. Ganal

Citation917 P.2d 370,81 Hawaii 358
Decision Date08 May 1996
Docket NumberNo. 17327,17327
Parties81 Hawai'i 358 STATE of Hawai'i, Plaintiff-Appellee, v. Orlando GANAL, Sr., Defendant-Appellant.
CourtSupreme Court of Hawai'i

Keith S. Shigetomi of Shigetomi and Thompson, on the briefs, Honolulu, for defendant-appellant Orlando Ganal, Sr.

Caroline M. Mee, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee State of Hawai'i.


MOON, Chief Justice.

Defendant-appellant Orlando Ganal, Sr. appeals the judgment, guilty conviction, and sentence for: (1) the attempted first degree murder of (a) his estranged wife, Mabel Ganal (Mabel), (b) Michael Touchette (Michael), the brother of Mabel's lover, and (c) Michael's wife, Wendy Touchette (Wendy); (2) the first degree murder of (a) Ganal's mother- and father-in-law, Aradina and Santiago Dela Cruz (collectively, the Dela Cruzes), and (b) Michael and Wendy's infant children, Joshua and Kalah Touchette; (3) the use of a firearm in the commission of a felony; (4) the first degree terroristic threatening of Mabel's lover, David Touchette (David); and (5) the criminal property damage of the premises of his employer, Young Laundry.

On appeal, Ganal argues that: (1) the prosecution did not present sufficient evidence to establish probable cause that he committed first degree property damage at Young Laundry; (2) the trial court improperly denied his motion to suppress evidence found in his truck; (3) the trial court improperly denied his motion to dismiss the use of a firearm count; (4) he was deprived of a fair trial because of allegedly improper statements made by the prosecutor and/or his own outbursts in court; and (5) the trial court erroneously denied his motion to dismiss the attempted first degree murder count because attempt is an included offense under Hawai'i Revised Statutes (HRS) § 701-109 (1993). 1 For the reasons discussed below, we reverse Ganal's conviction and sentence as to Counts II and III of the indictment and affirm Ganal's convictions and sentences on all other Counts.


The many events that form the basis of the charges against Ganal in this case principally revolve around the night of August 25, 1991 and the early morning of August 26, 1991. We detail the relevant events largely in chronological order.

A. Events Prior to August 25, 1991

Ganal testified at trial that, on February 15, 1991, he injured his back while working at his job at Young Laundry. Unable to work, and having difficulty obtaining workers' compensation, Ganal became despondent. At roughly the same time, Ganal's wife, Mabel, began having an affair with David, a co-worker at her part-time job. Ganal became suspicious of Mabel's affair, and through investigation, eventually confirmed his suspicions.

In early April 1991, as Mabel and Ganal's marriage began to deteriorate, Ganal began calling David--at times, he was friendly; at others, he threatened David and his family with violence. At approximately the same time, Mabel left Ganal to live with her parents, the Dela Cruzes. Orlando Ganal, Jr. ("Jun Jun"), Ganal and Mabel's son, then age thirteen, continued to live with Ganal.

Mabel testified at trial that on Saturday, August 24, 1991, she was at Ganal's home to pick up Jun Jun when she and Ganal began to quarrel. The quarrel escalated, culminating in Ganal pointing a gun at Mabel and begging her to move back in with him. When Mabel refused, Ganal pointed the gun at his own head as if to shoot himself. Mabel eventually convinced Ganal not to shoot himself and persuaded Ganal to give her the gun. Mabel then called for Jun Jun to help her, but Ganal stopped her and threatened to kill both Mabel and Jun Jun. When Jun Jun came to Mabel's aid, Mabel signaled to Jun Jun that Ganal had a gun, and Jun Jun left the house. Ganal and Mabel continued to quarrel, and, after they stopped arguing, they looked for Jun Jun, but they could not find him. A neighbor took Mabel back to the Dela Cruzes' home in Waipahu, and, during that night and the following day, Mabel called Ganal periodically to see if Jun Jun had returned home, but she learned that he had not.

B. The Night of August 25, 1991
1. The Dela Cruz House in Waipahu

At approximately 7:00 p.m., on August 25, 1991, Jun Jun's girlfriend dropped Jun Jun off at the Dela Cruz house. Mabel told Jun Jun that she wanted him to go to his father, but when Jun Jun called to ask Ganal to pick him up, Jun Jun and Ganal began to argue. Mabel then called Ganal to apologize for Jun Jun, but Ganal swore at her, accusing her of turning Jun Jun against him. Mabel, Jun Jun, and the Dela Cruzes then ate dinner, watched television, and went to sleep.

Mabel testified at trial that, on the night of August 25, 1991, she was sleeping on a couch at her parents' house when she awoke to the sound of the front door being forced open. Mabel then looked up, saw a silver-colored gun, and was shot along the side of her head. She managed to crawl to her brother's room and then to her father's room, but the doors to both rooms were locked. Meanwhile, the intruder was kicking and punching her, but she was unable to see who it was. Mabel's father awoke, came out of his room, and tried to stop the intruder, but the intruder shot him.

Jun Jun testified at trial that he was sleeping on the floor next to the television in the Dela Cruzes' living room when he awoke to the sound of his mother yelling his name. He opened his eyes and saw Ganal in the light from the balcony. Ganal then shot Jun Jun in the mouth. Jun Jun managed to elude Ganal and ran downstairs to a neighbor's home. Jun Jun noted that Ganal was wearing blue jeans.

Mabel's brother, Diego Dela Cruz (Diego), testified that he was asleep in his room when he was awakened by the sound of gunshots and heard Mabel screaming in the living room. Fearing for his family's safety, Diego immediately knocked out his bedroom jalousies and helped his wife and child climb outside. As they crouched outside, Diego heard pounding on his bedroom door and then the sound of his father moaning in the hallway. When he climbed back inside, Diego found his mother bent over a sofa, dead, and his father sliding down the stairway, covered with blood and moaning. Aradina Dela Cruz died as a result of seven gunshot wounds. Santiago Dela Cruz died as a result of multiple internal injuries caused by three gunshot wounds.

Rosemary Nishimura, who lived just north of the Dela Cruz house, testified that, at approximately 11:00 p.m., she heard a loud noise, like a pipe falling on cement, followed by six shots. She looked out toward the Dela Cruz house and saw a man in dark clothing, who appeared to be reloading a gun. Ven Malapit, another of the Dela Cruzes' neighbors, heard the noises and gunshots, looked out his garage window, and saw a man, possibly Filipino, holding a gun and dressed in dark clothes, run towards a dark-colored Chevrolet truck with a lighter-colored tailgate and drive away.

2. The Touchette House in Kailua

Barbara Fitzpatrick, a neighbor of the Touchettes, testified at trial that, on the night of August 25, 1991, she heard the sound of glass breaking, followed by a small explosion. She looked out to see a Filipino or local man, wearing a dark jacket and jeans, carrying an object and walking very fast toward a dark gray or blue truck. The man put the object in the truck bed, got into the truck, and drove away quickly. Fitzpatrick then noticed a fire in the Touchettes' house. Neighbors Gary Guillermo and Clayt Kobashigawa corroborated Fitzpatrick's testimony.

Wendy Touchette testified that on the same night, she, her husband, and their two children were getting ready for bed when they received a phone call. Michael answered the phone and said "hello" a few times, but no one responded. Michael, Wendy, and the two children were all sleeping in the main bedroom when Wendy awoke to the sound of Michael screaming. She got up and saw Michael on fire. Michael was saying, "He was here, he's here, he was here." Wendy said, "What?" and Michael said, "Orlando," and "Get out." Soon thereafter, Wendy was also on fire, and she tried unsuccessfully to get to the bathroom for some water, but the fire was too hot.

Michael and Wendy struggled to get out of the house, but could not open the front door because it was somehow locked from the outside. Wendy eventually managed to reach the kitchen door, where someone pulled her out. The Touchette children, Joshua and Kalah, died of thermal burns and smoke inhalation at the scene. Michael died later, on September 23, 1991, as a result of complications related to severe burns over eighty percent of his body. Wendy was severely burned over approximately forty percent of her body and suffered scarring over much of her face.

Fire investigator Glen Solem testified at trial that the fire at the Touchette house was intentionally started with a liquid accelerant, probably gasoline. Solem further testified that, based on the burn patterns and the patterns of broken glass on the floors, it appeared that two fires had been started separately in the living room and the bedroom from gasoline being thrown into the house.

3. The Young Laundry Premises

Young Laundry's night watchman, Suesue Faamamalu, testified at trial that he was on his patrol of the Young Laundry premises at approximately 12:00 midnight on August 25, 1991, when he discovered a fire burning on the second floor of the building. Young Laundry's manager, Michael Drace, testified at the grand jury proceedings that the Young Laundry plant operates twenty-four hours a day and that there are people working in the plant at all hours. Drace further testified that the sprinkler system extinguished the fire. Fire Investigator Warner Pukini testified at trial that his investigation indicated that the fire was intentionally set with a combustible liquid. The burn patterns suggested that the...

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