State v. Alfonso

• Decision Date: 14 July 1982
• Docket Number: No. 7843,7843
• Citation: 65 Haw. 95,648 P.2d 696
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Eric Abellira ALFONSO, Defendant-Appellant, and Eugene Charmon Margiotta, Defendant.
• Court: Hawaii Supreme Court

Page 696

648 P.2d 696

65 Haw. 95

STATE of Hawaii, Plaintiff-Appellee, v. Eric Abellira ALFONSO, Defendant-Appellant and Eugene Charmon Margiotta, Defendant.

No. 7843.

Supreme Court of Hawai'i.

July 14, 1982.

Syllabus by the Court

1. It is an elementary principle of our system of justice that a judge presiding over a trial has the obligation to maintain impartiality and fairness in the proceedings before him.

2. Before an appellate court may find that a judge, through his statements, destroyed a defendant's opportunity for a fair trial, the defendant must demonstrate that those comments prejudiced the jury against him or otherwise unduly and adversely affected the outcome of the trial.

3. The latitude permitted counsel in offering testimony and the order of that testimony rests completely within the discretion of the trial court, and an abuse of that discretion must be established before reversal of a conviction based on the testimony or a new trial may be warranted.

4. In reviewing a motion for judgment of acquittal, the trial court's duty rests in determining whether, upon the evidence viewed in a light most favorable to the government, and giving full play to the right of the jury to determine credibility, weigh the evidence, and draw therefrom justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.

5. Where submission without earnest resistance is alleged to have been induced by fear, such apprehension must have been of death or serious physical injury and must have been reasonable as judged by the circumstances.

6. The combined effect of the defendant's threats and the force he applied may suffice to support a conviction for rape and sodomy where his threats standing alone would not.

William H. Brady, Honolulu (Brady & Brady, Honolulu, of counsel), on the briefs, for defendant-appellant.

Wevley H. Shea, Deputy Pros. Atty., on the brief, for plaintiff-appellee.

Before RICHARDSON, C. J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices, Assigned Temporarily.

LUM, Justice.

Defendant-appellant Eric Abellira Alfonso ("appellant") and co-defendant Eugene Charmon Margiotta were tried jointly and each convicted by a jury of rape in the first degree and of sodomy in the first degree pursuant to HRS §§ 707-730(1)(a)(i) (1976) ¹ and 707-733(1)(a)(i) (1976), ² respectively, based on the same criminal episode. Upon consideration of the issues raised which merit discussion, we affirm appellant's conviction.

I.

We shall first consider whether the trial judge's remarks near the close of the prosecutor's case and his permitting the victim to testify a second time denied appellant a fair trial. These claims of error stemmed from the proceedings that followed immediately after the victim had been examined by all parties and excused from the stand. The prosecutor, desirous of assisting the jury in identifying the scene of the alleged crimes through photographs already received into evidence, had planned to recall her to testify as to the proximity of the different views depicted in the pictures to each other. It appeared to appellant's counsel through the prosecutor's own statement that this testimony would conclude the government's case. ³ A discussion over the necessity of linking the scenes was held out of the jury's hearing, and concluded with the following interchange:

THE COURT: What is your pleasure, Mr. Prosecutor?

MR. KANESHIRO: Well, in that case, Your Honor, the State would have to call the witness because this area located in State's Exhibit 6 is also depicted by State's Exhibit 5. And we have to show the link just to aid the jury in understanding the general scene of the crime.

THE COURT: All right. You want a recess?

MR. KANESHIRO: Okay, Your Honor.

THE COURT: In case the Prosecution is about to rest its case, my only caution to both sides is, review very thoroughly what you have proven so far. All right, let's take a recess.

(emphasis added).

Before the jury was excused for the break, however, counsel for Margiotta stipulated to the connection between the scenes shown in the photographs. The prosecutor nonetheless indicated that the State had not concluded its case, and the court recessed. When the parties returned, but again in the absence of the jury, the prosecutor requested that he be permitted to return the victim to the stand "because the State, after reviewing the notes, feel (sic ) that it missed one element that (it) would like to bring forth through the witness. There's an indication by the witness that she recalls testimony that she did not give on direct examination that she would like to give." He disclosed that the victim, during recess, had mentioned to a crisis center worker that she had failed to testify that she did not resist the defendants because she was attempting to hide her friend's knife from them, and that she had also failed to mention certain remarks that the defendants had made to her during the episode. The judge recalled the victim for the limited purpose of testifying to these matters, but only after both she and the crisis center employee had been examined by all parties in the jury's absence to determine the substance of the conversation between them.

Appellant asserts that the court improperly tipped the prosecutor, who was about to rest his case, that he had not met his burden of proof, for it was only after the judge's cautionary remark that the prosecutor recalled the victim to testify on matters which substantially prejudiced the defendants.

It is of course a well-established and elementary principle of our system of justice that a judge presiding over a trial has the obligation to maintain impartiality and fairness in the proceedings before him. Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 470, 86 L.Ed. 680 (1942); State v. Pokini, 55 Haw. 640, 645, 526 P.2d 94, 101 (1974). And thus while judges are entrusted with wide latitude in the making of comments during the course of a trial, Taylor v. Carborundum Co., 107 Ill.App.2d 12, 28, 246 N.E.2d 898, 906 (1969), any remarks must be calculated with extreme care so as not to reflect, inter alia, judicial bias toward either party or opinion as to the weight of the evidence or the merits of the case. Kanoy v. Hinshaw, 273 N.C. 418, 426, 160 S.E.2d 296, 302 (1968). But before this appellate court may find that a judge, through his statements, destroyed a defendant's opportunity for a fair trial, the defendant must demonstrate that those comments prejudiced the jury against him, Taylor v. Carborundum Co., supra; State v. Griffin, 4 Wash.App. 947, 484 P.2d 448 (1971), or otherwise unduly and adversely affected the outcome of the trial. Babcock v. Chesapeake & Ohio Railway Co., 83 Ill.App.2d 919, 923, 38 Ill.Dec. 841, 846, 404 N.E.2d 265, 270 (1979); Commonwealth v. Ryder, 467 Pa. 484, 487, 359 A.2d 379, 381 (1976). For the defendant's guarantee of a fair trial does not shield him from all erroneous, unwise or irrelevant remarks made during the course of the proceedings, but only from those which may reasonably be said to have prejudiced him. Id.

The assertion that the judge's warning unduly and unfairly prejudiced the outcome of the trial has not been established by appellant and remains a matter of purest speculation. Even assuming that the remark, neutrally phrased, constituted a hint to the prosecutor that he had not proven his case, there exists no indication whatsoever that the prosecutor's subsequent actions would have been any different had it not been uttered. That the new information was volunteered by the victim and not elicited by the prosecutor strongly suggests otherwise. More importantly, however, the judge's statement was made in a bench conference out of the jury's hearing, and thus could not have affected the minds of the jurors at all. We cannot conclude from these circumstances that the judge's word of caution denied appellant a fair trial.

Appellant's second argument that the judge abused his discretion by erroneously allowing the victim to retestify without limiting the scope of her examination is wholly unsupported by the record and the law. The latitude permitted counsel in offering testimony and the order of that testimony rests completely within the discretion of the trial court, and an abuse of that discretion must be established before reversal of a conviction based on the testimony or a new trial may be warranted. Territory v. Alcosiba, 36 Haw. 231, 236 (1942); Territory v. Kimbrel, 31 Haw. 81, 89 (1929); Mist v. Kewalo, 13 Haw. 302, 303 (1901); see Haw.R.Evid. 611 & Commentary; cf. Filipino Federation of America, Inc. v. Cubico, 46 Haw. 353, 372, 380 P.2d 488, 499 (1963); Territory v. Kimbrel, supra (reopening case for further evidence before submission to jury is within trial judge's discretion).

The prosecutor herein had not rested his case when the victim retook the stand to testify. Before the court allowed her to do so, both she and the crisis center worker were examined in the jury's absence for the purpose of determining the manner in which the new testimony had been discovered and the substance of that testimony. The judge thereafter limited the scope of the direct examination to matters which had not been covered during the victim's previous appearance on the stand. The defendants were given full opportunity to cross-examine her. We find no abuse of discretion by the trial court.

II.

Appellant moved for judgment of acquittal at the close of the prosecution's evidentiary presentation, arguing that the government had failed to establish the element of forcible compulsion beyond a reasonable doubt. Viewing the testimony in a light most favorable to the prosecution, the court concluded that there existed sufficient evidence from which a jury could convict the co-defendants of the crimes charged, and accordingly denied the motion. Appellant now contends that the court's action...