85 Hawai'i 462, State v. Fukusaku

• Citation: 946 P.2d 32
• Decision Date: 16 September 1997
• Docket Number: No. 19281,19281
• Parties: 85 Hawai'i 462 STATE of Hawai'i, Plaintiff-Appellee/Cross-Appellant, v. Raita FUKUSAKU, Defendant-Appellant/Cross-Appellee
• Court: Supreme Court of Hawai'i

Page 32

946 P.2d 32

85 Hawai'i 462

STATE of Hawai'i, Plaintiff-Appellee/Cross-Appellant, v. Raita FUKUSAKU, Defendant-Appellant/Cross-Appellee

No. 19281.

Supreme Court of Hawai'i.

Sept. 16, 1997.

Reconsideration Denied Oct. 9, 1997.

Addendum Remanding Case

Oct. 16, 1997.

Michael K. Tanigawa (Keith S. Agena with him on the briefs, of Char, Sakamoto, Ishii & Lum), Honolulu, for defendant-appellant/cross-appellee.

Caroline M. Mee, Deputy Prosecuting Attorney, Honolulu, for plaintiff-appellee/cross-appellant.

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

RAMIL, Justice.

Defendant-Appellant/Cross-Appellee Raita Fukusaku (Defendant) appeals his convictions and sentences on two counts of murder in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 707-701.5 (1993). ¹ Plaintiff-Appellee/Cross-Appellant State of Hawai'i (the Prosecution) cross-appeals various orders of the circuit court entered in the course of the proceedings. Pursuant to the procedure established in Garringer v. State, 80 Hawai'i 327, 909 P.2d 1142 (1996), we will withhold judgment on Defendant's convictions for thirty days. If the Prosecution, within that time, consents to resentencing without mandatory minimum terms under HRS § 706-660.1, we will affirm the convictions and remand for resentencing. If, on the other hand, the Prosecution does not consent, we will vacate the convictions and remand for retrial.

I. BACKGROUND

On February 23, 1994, at about 5:00 p.m., Honolulu firefighters responded to a fire at 1350 Ala Moana Boulevard, Penthouse 4, and found the body of Toako "Kototome" Fujita (Kototome) in a bedroom closet. She had been shot through the chest. At about 10:30 p.m. the same night, firefighters were summoned to the parking lot of the Park Shore Hotel, where they discovered a red Acura sports car on fire. The body of Kototome's son, Goro Fujita (Goro), was found on the front passenger seat. He had also been shot through the chest. On March 30, 1994, Defendant, an acquaintance of Goro's, was charged with one count of murder in the first degree ² and two counts of murder in the second degree ³ in connection with the deaths of the Fujitas. As Defendant had returned to Japan by then, extradition proceedings were conducted and Defendant was returned to Honolulu in August 1994.

After extensive discovery and pretrial motions, opening statements were delivered on February 27, 1995. At trial, the Prosecution introduced evidence from the video surveillance system at the Discovery Bay Condominium. Discovery Bay, located at 1778 Ala Moana Boulevard, was the apartment complex in which Defendant had resided in Apartment 1306 of the Endeavour Tower. The videotapes showed Defendant entering a Discovery Bay elevator with Goro at 9:27 a.m. on February 23, 1994. Security guard Melvin Quartero subsequently entered the elevator on the 10th floor. The videotapes then showed Defendant and Goro getting out of the elevator on the 13th floor. Quartero confirmed, in his testimony, that they exited on the 13th floor and walked in the direction of Apartment 1306. Goro never again appeared in the Discovery Bay surveillance tapes. However, the videotapes did show Defendant, at approximately 12:58 p.m., taking the elevator to the 9th floor, which led to the parking garage. Defendant was wearing a dark shirt and was carrying a white bag and a piece of cloth that could have been a jacket.

Gladys Brandt, a resident of 1350 Ala Moana Boulevard, testified that, at about 2:10 p.m., she saw a young man with wet, black hair, and dressed in a jacket, exit the elevator on the penthouse floor and hurry to the Fujita's apartment. Although Brandt had assumed that the man was Goro, she thought it was odd that he did not turn and say "hi" to her. Brandt could not identify Defendant as the man she saw that day.

Yoshiharu Satoh, chairman of the board of Central Pacific Bank, testified that, at about 2:55 p.m., he received a telephone call from Kototome. She said that it was an emergency and that she needed $20,000 in cash delivered to her. When Satoh told her that doing so would be against bank policy, she replied that it could affect someone's life. Then Kototome asked Satoh to explain to a person who was with her, in Japanese, that he could not bring the money. Satoh duly re-explained that he could not deliver the money and then asked Kototome what was going on. After three or four seconds of silence, the call was cut off. Because he did not have Kototome's telephone number, Satoh then called Junichi Uchida of the Japanese Consul General's Office and asked him to look into the matter.

Uchida testified that after receiving the call from Satoh, he located Kototome's phone number and tried to call her at about 3:45 p.m. When no one answered after ten rings, he hung up and called again. After several rings, Uchida thought he heard someone pick up the phone; however, when no one spoke, he hung up. Uchida then called a third time but only got the answering machine. Uchida called Satoh and told him what had happened. Satoh then asked Uchida to go to Kototome's apartment.

Madeline Donnell, another resident of 1350 Ala Moana Boulevard, testified that, between 3:30 and 4:00 p.m., she saw a man come out of Penthouse 4 wearing a light blue top or jumpsuit and carrying white bags on a strap hanging from his left shoulder. Thinking it was Goro, she called out "Goro," but the man walked by without responding. She stated that Goro would normally respond with a nice greeting, so she assumed that he was late for school or had something on his mind. Donnell suffered from a degenerative eye disease and could not identify Defendant as the person she saw; however, she did say that the person was of Asian racial extraction.

Uchida arrived at 1350 Ala Moana Boulevard at approximately 4:30 p.m. and went to the manager's office in order to tell him that he wanted to go up to the Fujitas' apartment. About 10 minutes later, he arrived at the apartment and saw smoke coming out of the top portion of the door. He then waited for the firefighters, who arrived at about 5:00 p.m. The firefighters found Kototome's body in a closet.

Discovery Bay videotapes showed Defendant taking an elevator to the 13th floor at about 3:53 p.m., wearing the same clothes and carrying the same bag and cloth material. Subsequent sequences showed Defendant, dressed in plaid Bermuda shorts and a light-colored t-shirt with a square pattern on the back, entering the elevator with a hand truck at about 4:48 p.m. He took the elevator to the 13th floor and exited with the hand truck. The videotapes later showed the Defendant entering the elevator wearing the same clothing except with a pair of white gloves.

Diane Brusin, another resident of Discovery Bay, testified that between 8:00 and 10:00 p.m. she heard a loud gunshot. Brusin heard the gunshot while in the living room of her apartment--Apartment 1406. Brusin also testified that she was a former member of the Yugoslavian Olympic shooting team and was familiar with firearms.

The surveillance videotapes then showed Defendant, at about 9:08 p.m., attempting to hold the elevator door open by putting duct tape over the "open door" button. Subsequent sequences showed Defendant, wearing the square-patterned t-shirt, plaid Bermuda shorts, and white gloves, entering the elevator at about 9:15 p.m. He was using a hand truck to move a large object wrapped in cloth. The outline of the bundle resembled a body. He went to the 10th floor, which led to the parking garage, and exited with the hand truck and the bundle. At about 9:32 p.m., Defendant, without a shirt but still wearing the plaid Bermuda shorts, re-entered the elevator with a bag marked "Tokyo" resting on the hand truck and went to the 13th floor. The videotapes later showed Defendant, wearing long pants and a different light-colored t-shirt, taking the elevator at about 9:40 p.m. and eventually exiting on the 10th floor. The videotape from a parking garage security camera showed Goro's Acura sports car, which was identified by its license plate, leaving the garage at about 9:46 p.m. The tape showed a male driving the vehicle, and although his face was not visible, he was wearing a light-colored shirt. The front passenger seat was in a reclined position and there was a bundle on the seat.

At about 10:30 p.m., a bellman at the Park Shore Hotel in Waikiki heard a car alarm and, upon investigating, found a red sports car on fire. When firefighters arrived, they extinguished the fire and found Goro's body, bound with duct tape and wrapped in cloth, in the front passenger seat.

Security videotapes from an ABC Store across the street from Discovery Bay showed Defendant, wearing a light-colored t-shirt and long pants, buying Clorox, Woolite rug cleaner, air freshener, and a bottle of soda at about 10:33 p.m. The ABC salesclerk, Angelita Gamata, confirmed the purchase in her testimony. The Discovery Bay videotapes showed Defendant, wearing the same clothes and carrying ABC Store bags, taking the elevator to the 13th floor at about 10:36 p.m.

The videotapes then showed Defendant entering the elevator on the next day, February 24, 1994, at about 8:20 a.m. On a hand truck, he was transporting a love seat with a portion of the bottom missing. He took the love seat to the basement, then re-entered the elevator with just the hand truck. He took the hand truck to the lobby, then returned to the 13th floor. At about 9:35 a.m., Defendant entered the elevator carrying a paper bag in his hands and exited on the 9th floor. Later, after returning to Discovery Bay, Defendant entered the elevator at about 7:44 p.m., carrying luggage, and exited on a floor with access to the parking garage.

On February 25, 1994, sanitation workers turned in some items to the police that they had discovered in a dumpster at Eaton Square. The items were found in brown paper bags and included a man's diving watch, Goro's...