Palakiko v. Territory of Hawaii

• Citation: 188 F.2d 54
• Decision Date: 27 March 1951
• Docket Number: No. 12638.,12638.
• Parties: PALAKIKO et al. v. TERRITORY OF HAWAII.
• Court: U.S. Court of Appeals — Ninth Circuit

188 F.2d 54 (1951)

PALAKIKO et al. v. TERRITORY OF HAWAII.

No. 12638.

United States Court of Appeals Ninth Circuit.

March 27, 1951.

George T. Kobayashi, Bert T. Kobayashi and Tin Seong Goo, all of Honolulu, T. H., for appellant.

Chas. M. Hite, Public Prosecutor of the City and County of Honolulu, Allen R. Hawkins, Asst., Honolulu, T. H., for appellee.

Before STEPHENS, HEALY and POPE, Circuit Judges.

POPE, Circuit Judge.

The appellants, Majors and Palakiko, were tried in a Circuit Court of the Territory of Hawaii upon an indictment charging them with murder while committing the crime of rape, murder while attempting to commit rape, and murder with extreme atrocity and cruelty. They were found guilty as charged, sentenced to death, and upon error to the Supreme Court of Hawaii the judgment was affirmed. This is an appeal from that judgment of affirmance, upon the single specification of error that "appellants were denied `due process of law' * * * under the Fifth Amendment * * * in that, the confessions which were introduced in evidence and used against the appellants in the trial court were not voluntarily made by the appellants."¹

The body of the murdered woman was discovered in her home, where she lived alone, on March 16, 1948. Death had apparently occurred 3 to 5 days before. She had been gagged and bound, her jaws had been broken, and the position and condition of her clothing indicated rape had been committed or attempted. Palakiko and Majors, convicts confined in Oahu prison, had escaped from a work gang on March 10. On March 12, Palakiko was recaptured. After discovery of the murder, and on March 20, Palakiko was questioned and made one of the statements here in question, admitting participation in the breaking and entry into the victim's house, and implicating Majors.

About 12:40 A.M. on March 21, Majors was apprehended riding as a hitchhiker in a car which police officers stopped at a roadblock. When the officers opened the car door and saw the bundle which Majors was carrying, (which was later found to contain canned goods and other articles from the murdered woman's house), and learned that he was a stranger to the driver, they pulled Majors from the car. He broke away momentarily, and attempted to drink a bottle of iodine. As an officer struck the bottle from his hands Majors "slumped down to the ground as though going unconscious." He was rushed to a near-by hospital where his stomach was pumped out and his mouth burns treated.

At 2:55 A.M. detective Stevens of the Honolulu police department questioned Majors for about an hour. There is nothing in the record as to what Majors then said. He was in bed, he had some difficulty in talking, said his throat was burning, but did not object to talking. At 4:30 A.M. Majors was given 4 grains of phenobarbital as a sedative. In consequence of that he slept for most of that day, off and on. Beginning about 9 A.M. he was given 10 grains of aspirin crushed in cream every two hours for the burns of his throat.

At 10:45 the same morning Majors was again questioned by Officer Stevens, this time in the presence of two other officers, and of a shorthand reporter whose transcription of the conversation with Majors constitutes one of the three statements made by Majors which are in question here.

A physician, resident psychiatrist at the hospital, who examined Majors, was not present when this statement was taken, but testified that he believed Majors was competent to speak to a police officer at that hour. He testified that the effects of the pheno-barbital would last about 15 hours, during which the patient would awaken at different periods, when he would be able to think and talk; that the phenobarbital would make him sleepy, and that the burns in the mouth and throat would be painful. This interrogation lasted from 10:45 to 11:30 A.M.

The next afternoon, March 22d, at 2:50 P.M., a second statement was taken from Majors. Again Officer Stevens questioned Majors, in the presence of two other officers, and of a police stenographer who took the questions and answers in shorthand. This was the second confession in question here.

Majors then asked to see Captain Straus of the Honolulu police, stating that he wished to give Straus a statement. Accordingly, on March 24, after Majors had left the hospital, he talked to Captain Straus, at the police station, in the presence of three other police officers, including Detective Stevens. Palakiko was also present. The questions and replies were taken in shorthand by a police stenographer. The notes were later transcribed and the transcribed written statement was signed by Majors. Neither of the two earlier statements were signed. The record does not disclose whether he was asked to sign them.

In ruling upon the admissibility of the offered statements the trial judge, in an extended review of the evidence to which reference will be made hereafter, found that they were made voluntarily. Although the record does not contain the instructions given the jury, the recitals in appellants' assignments of error in the Territorial Supreme Court indicate that the jury was instructed upon the question of the required voluntary character of the confessions. At any rate, there is no claim here that any defect in the charge to the jury has any bearing upon the issue now before us. The Supreme Court of Hawaii found that the confessions were "voluntarily made without the slightest indication of force, threat, duress, or promise of reward or immunity and therefore clearly admissible."

Notwithstanding these findings of the Hawaiian courts, in our consideration of the question of due process under the Fifth Amendment it is our duty to make an independent examination of the record, in the same manner in which that is done by the Supreme Court in the review of the judgments of state courts claimed to have resulted from the use of confessions obtained in violation of the due process clause of the Fourteenth Amendment.²

As for the Palakiko confession, there is no evidence whatever that it was not entirely voluntary. It will be recalled that Palakiko was apprehended before the murder had been discovered. Four days after the body of the victim was found, Palakiko was interrogated by Capt. Straus at the Police Department in the presence of Capt. Kennedy and of the police stenographic reporter who recorded the interrogation in shorthand. This questioning began at 6:50 P.M. and was concluded at 7:38 P.M. Palakiko was then taken to the scene of the crime where questioning was resumed and he was asked to point out the places in the victim's home to which he had referred in the prior examination. He described the movements of the defendants after they entered the house, pointing out the location of various rooms and objects. This later questioning, which began at 8:05 P.M. and concluded at 8:40 P.M., was in the presence of 13 police officers in addition to Capt. Straus who asked the questions. The completed statement, including questions both at the police station and at the scene of the crime, was signed by Palakiko. (The typewritten records of the signed statements disclose the initials of the persons making the statement along the margins. This suggests that they probably initialed corrections in the text. The original exhibits have not been furnished here.)

When the Palakiko statement of March 20 was offered, the court examined Capt. Straus at considerable length for the purpose of ascertaining the facts and circumstances under which the statement was made. All of the testimony adduced by the court's questioning, as well as that given upon direct and cross examination by counsel of this and other witnesses, disclosed that there were neither threats nor promises to induce the making of the statement; that there was no force, no promise of immunity, no representation of any kind. The testimony without exception discloses that the confession was entirely voluntary. Appellants have furnished us nothing in their arguments or briefs which would indicate any reason why the Palakiko statement was not properly received in evidence.

The same thing must be said of the statement made by Majors on March 24. Majors asked for the opportunity to make this statement to Capt. Straus. The trial judge, after the Territory had laid a foundation for the introduction of this statement, took over the questioning of the witness on the stand at the time the offer was made and inquired whether threats, promises or other unfair inducements were used in procuring this statement. There is no evidence whatever that the statement made by Majors on March 24 was not entirely voluntary. Palakiko was also present during that interrogation and was asked some questions also, including the query as to whether the statement then made by Majors was the "right story". Palakiko replied that it was.

The contention as to the improper inducements require consideration only as they relate to the first two of the three statements made by Majors. Although the complete record of the evidence, if it were before us, might disclose sufficient evidence apart from these earlier confessions to warrant conviction,³ yet if the admission of these earlier confessions denied a constitutional right to Majors, the error would require reversal.⁴ We must therefore examine the claim that Majors' first confession or second confession or both were received under circumstances of such irregularity and unfairness as to amount to a denial of due process.

Aside from the evidence that the first statement taken from Majors was begun about 10 hours after he had swallowed the iodine, and about 8 hours after the doctors had finished pumping out his stomach, and that he was then under the influence of barbiturates and in considerable pain, the circumstances which it is claimed rendered the receipt of these earlier confessions improper are to be found in the last portion of Majors' statement of March 24....