83 Hawai'i 209, State v. Kahoonei
| Decision Date | 10 May 1995 |
| Docket Number | No. 17201,17201 |
| Citation | 925 P.2d 379 |
| Parties | 83 Hawai'i 209 STATE of Hawai'i, Plaintiff-Appellee, v. James Gilbert KAHOONEI, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Ray Allen Findlay, Honolulu, for defendant-appellant.
Donn Fudo, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.
Before BURNS, C.J., and WATANABE and ACOBA, JJ.
Defendant-Appellant James Gilbert Kahoonei (Defendant) appeals from the Judgment, Guilty Conviction, and Sentence entered by the First Circuit Court on May 20, 1993, following his jury conviction of two counts of possession of a firearm and ammunition by a person convicted of certain crimes (illegal firearms possession), violations of Hawai'i Revised Statutes (HRS) § 134-7(b) and (f) (Supp.1992), and one count of harassment, a violation of HRS § 711-1106(1)(a) (1985).
Defendant's sole contention on appeal is that the motions court erred in failing to grant his motion to suppress certain evidence which he claims was obtained in violation of the Fourth Amendment, pursuant to a warrantless search of his bedroom by his mother, who was then acting as an agent of the State and under police coercion. 1
For the reasons set forth below, we reverse the denial of the motion to suppress, affirm the judgment with respect to the harassment conviction, vacate the judgment with respect to the two counts of illegal firearms possession, and remand for a new trial.
The charges against Defendant arose out of an August 3, 1990 domestic dispute between Defendant and his live-in girl friend, Denise Tamanaha (Tamanaha), during which Defendant allegedly brandished a gun, threatened suicide, and fired two shots. Frightened by what was going on, the eleven-year-old daughter of Defendant and Tamanaha (Daughter) ran next door to a neighbor's Among the first officers to arrive at Defendant's residence 3 were Darryl Kon (Officer Kon) and Benton Akina (Officer Akina). When they arrived, Tamanaha and Defendant's mother, Angeline Kahoonei (Mrs. Kahoonei), were standing in the front yard of the residence. Officers Kon and Akina approached the two women and informed them that the officers were investigating a report of gunshots. Tamanaha responded that she and her boyfriend, later identified as Defendant, had had an argument, but that it was over and no one was hurt. Tamanaha also indicated that no guns had been involved in their argument, but Defendant had thrown some items around which had caused a loud noise. Tamanaha also related that Defendant was in the residence and was fine.
[83 Hawai'i 211] house and called the police to report the disturbance and gunshots. Several police officers 2 responded to the call shortly thereafter.
After learning that Mrs. Kahoonei was the owner of the residence in question, the officers asked her permission to enter the residence to speak to Defendant. According to the officers, Mrs. Kahoonei gave them permission, and Tamanaha led the way, as four police officers entered the residence.
While the officers were inside the residence, Defendant grabbed Officer Kon. A brief scuffle ensued, and Defendant was arrested for harassment and taken outside.
After Defendant had been secured in a police car, Officer Akina and another police officer, Sergeant Rosaline Lenchanko (Sergeant Lenchanko), reentered the residence with Mrs. Kahoonei and Tamanaha and began interviewing the women about the incident. While interviewing Tamanaha, Officer Akina noticed a hole in the living room floor "which penetrated to the underneath of the house." Transcript (Tr.) 12/23/91, at 20. Based on his experience and training, Officer Akina determined that the hole had been caused by a gunshot.
Officer Akina informed Sergeant Lenchanko of the presence of the bullet hole. Shortly thereafter, Sergeant Lenchanko told Mrs. Kahoonei and Tamanaha that a warrant "could be gotten to search the house" and a search "would be done anyway." Tr. 2/7/92, at 48.
Sergeant Lenchanko subsequently took Tamanaha into another room of the house to interview her and obtain her statement, and Officer Akina proceeded to interview Mrs. Kahoonei in the living room. While talking to Mrs. Kahoonei, Officer Akina pointed to the hole in the floor and remarked that "if at any time there was a gun involved in an argument and the gunshot had fired, it could have fired in a different direction and someone might have got hurt." Tr. 12/23/91, at 22. According to Officer Akina, "[Mrs. Kahoonei] stopped for a moment and then she said that she would check the bedroom for a firearm." Id.
Officer Akina claimed that he informed Mrs. Kahoonei that for safety reasons he could not allow her to go into the bedroom alone to look for the gun. Mrs. Kahoonei then permitted him to accompany her to Defendant's bedroom. Officer Akina never entered the bedroom. Instead, he stood in the doorway and watched as Mrs. Kahoonei walked over to an open closet and "bent down, reached into the closet area just above the trash bags, stood back up, holding within her right hand a revolver[.]" Id. at 24. Mrs. Kahoonei then handed the gun to Officer Akina, who testified at trial that Mrs. Kahoonei was acting "nervous, anxious to get rid of Mrs. Kahoonei then followed Officer Akina outside the residence, where she gave a signed written statement to the police. In her written statement, Mrs. Kahoonei indicated that the argument between Defendant and Tamanaha had started the night before, when Defendant returned home late from work. The argument resumed in the morning, and Defendant and Tamanaha began bumping and grabbing each other, as well as yelling at each other. According to Mrs. Kahoonei's signed statement:
[the firearm]." 4 Tr. 2/22/93, at 13. According to Officer Akina, as he was about to leave the bedroom, Mrs. Kahoonei turned to him and said, "You might as well take this[.]" Tr. 12/23/91, at 24. She then pointed to the bottom of the bed and picked up and handed to Officer Akina a brown, half-opened revolver case, which contained a yellow box with some rounds of ammunition
[Defendant] went into the room (bedroom) and came out with the handgun.
[Defendant] pointed the gun at the right side of his head. I saw this and got scared and grabbed his tank top from the back pulling him backwards. I used my left hand to pull him and with my right hand I reached over his shoulder and jerked his right hand downwards.
The gun went off at this time, causing a hole in the floor.
[Defendant] went into the bedroom by himself.
I heard a second shot, I ran to the bedroom and saw [Defendant] sitting on the bed. He threw the gun into the closet.
When the police came [Defendant] got arrested after he began arguing with them.
After the police spoke to me, I walked into the bedroom and got the handgun and turned it over to the police officer.
I then got the gun case and gave the case to the police officer, also.
State's Exhibit 3.
Written statements were also obtained that day from Tamanaha and Daughter. Both Tamanaha and Daughter described how Defendant, following an argument with Tamanaha, had retrieved a gun, aimed it at his head, and then fired a shot once into the living room floor. Daughter's statement also described how Defendant had run into their room and fired another shot.
Defendant was subsequently charged with two counts of illegal firearms possession and one count of harassment. On November 19, 1990, Defendant filed a motion to suppress evidence, seeking to exclude all items recovered by the police with the assistance of his mother. Defendant claimed that the police did not have his permission to enter his bedroom, where the evidence had been recovered, and his mother did not have authority to consent to a search of his bedroom. Defendant further argued that the police had coerced his mother into retrieving the evidence from his bedroom and turning it over to them, and that the search could not be justified as a protective search for weapons or a search incident to arrest.
At the hearing on the motion, Mrs. Kahoonei's recollection as to what transpired on the day in question differed from what she had written in her previous statement. Mrs. Kahoonei testified that she had been informed by the police that they would get a search warrant to search her house if she did not surrender the gun. They also threatened to "tear up" and confiscate her house, arrest her and Tamanaha, find contraband not pertaining to a gun, and possibly take her grandchildren away. Because of such coercion, she entered Defendant's bedroom, accompanied by a police officer, to retrieve the gun, and while there, the officer found and recovered the ammunition. Mrs. Kahoonei admitted on cross-examination, however, that she had never mentioned any alleged threats in her written statement. She also admitted that she was not threatened to make the Tamanaha similarly testified at the hearing that, for at least an hour and a half, the police had threatened to send her to jail if she did not get the gun. The police also had threatened to "tear up" the house to find the gun. Tamanaha admitted on cross-examination, however, that she never mentioned these alleged threats in her handwritten statement.
[83 Hawai'i 213] written statement, which she read and understood before signing.
The State's witnesses denied that any threats had been made to Mrs. Kahoonei. However, Officer Akina admitted that he had overheard Sergeant Lenchanko mention, in the presence of Mrs. Kahoonei and Tamanaha, that a search warrant "could be obtained to search the house" and the...
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83 Hawai'i 124, State v. Kahoonei
...State of Hawai'i (the prosecution) to review the decision of the Intermediate Court of Appeals (ICA) in State v. Kahoonei, --- Hawai'i ----, 925 P.2d 379 (App.1995) (Kahoonei I). The prosecution contends that the ICA erroneously concluded that certain evidence should have been suppressed be......