State v. Altergott

• Decision Date: 31 January 1977
• Docket Number: No. 5755,5755
• Citation: 57 Haw. 492,559 P.2d 728
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Richard D. ALTERGOTT, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 728

559 P.2d 728

57 Haw. 492

STATE of Hawaii, Plaintiff-Appellee, v. Richard D. ALTERGOTT, Defendant-Appellant.

No. 5755.

Supreme Court of Hawai'i.

Jan. 31, 1977.

Syllabus by the Court

1. The federal and state constitutional right to examine into specific possible prejudices on voir dire is confined to cases where under all of the circumstances presented there is a constitutionally significant likelihood that, absent questioning about specific prejudices, the juror would not be free from disqualifying prejudice.

2. Where a constitutional right to examine a prospective juror is not involved, the trial judge's rulings as to the scope and content of voir dire will not be disturbed on appeal in the absence of an abuse of discretion and a showing of substantial prejudice.

3. In exercising his discretion as to the scope of voir dire, the trial judge should be guided by his judgment of the likelihood that a particular question will disclose a mental attitude which would be significant in exercising challenges.

4. Where the prejudice which the question seeks to expose is not one concerning which the local community or population at large is commonly known to harbor strong feelings, the proponent must lay a foundation for his question by showing that it is reasonably calculated to discover an actual and likely source of prejudice.

5. Where cross-examination is aimed at implanting doubt in the minds of the jurors that the complaining witness correctly related past events and is pursued by defense counsel attempting to discover discrepancies between calendar entries and the witness' testimony, the trial court may properly admit into evidence, as prior consistent statements, calendar notations reflecting appointments and engagements.

6. Permitting repetitive questions aimed at discrediting a witness, which were not inappropriate in either mode or subject matter, was not an abuse of discretion.

7. No abuse of discretion will ordinarily be found in a trial court's denial of a continuance to enable a temporarily unavailable witness to be called, where that witness' testimony would be offered only for purposes of impeachment.

8. It is within the discretion of a trial court to deny a continuance that would add nothing of substance to previous testimony and would needlessly prolong a trial.

James T. Leavitt, Jr., Honolulu (Hart, Leavitt & Hall, Honolulu, of counsel), for defendant-appellant.

Charles A. Viviano, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

This is an appeal from a conviction of kidnapping and sodomy in the first degree. The complaining witness testified that the appellant came to the door of her home on the morning of March 22, 1974; that she was alone in the house except for her sleeping three-year old son; that she had never seen the appellant before but allowed him to enter upon his representation that his car had broken down and his request to use the phone; and that after the appellant had used the phone he forced her at knife point to engage in sexual acts. The appellant testified that he had become acquainted with the complaining witness previous to that morning by way of his employment at the Hickam Air Force Clinic, which she had visited for medical treatments; and that she invited him into her home and willingly engaged in the sexual acts but became enraged at him for ejaculating into her mouth and initiated the complaint because of her anger. The credibility of these accounts was the critical issue in the case, and it is apparent that the jury believed the complaining witness and disbelieved the appellant. The appellant claims prejudicial error in the refusal of the trial court to permit defense counsel to ask certain questions of prospective jurors on voir dire; the admission of certain calendars on which the complaining witness and her husband had recorded their engagements; the failure of the trial court to restrict repetitious cross-examination into an admittedly false statement made by the appellant to the police concerning his relations with the complaining witness; and the refusal of the trial court to grant a continuance to enable the appellant to recall a witness after rebuttal evidence had been introduced by the prosecution. We affirm for the reasons given in our discussion of these points.

I. RESTRICTED VOIR DIRE OF PROSPECTIVE JURORS

The questions which defense counsel was not permitted to ask in voir dire are set forth in the margin. ¹ As characterized in Appellant's brief, defense counsel's questions were for the purpose of ascertaining from the prospective jurors their attitudes and presumptions concerning the veracity of women who bring criminal sexual charges; their reactions to sexual acts which are legal when practiced by two consenting adults; and their ability objectively to hear and evaluate appellant's testimony if the evidence disclosed that he was engaging in an extramarital affair. Since we conclude that it was within the discretion of the trial court to deny permission to make these inquiries on voir dire, it is not necessary for us to consider whether the questions proposed by defense counsel were proper in form and, if they were not, what duty rested on the trial court to submit suitable questions to the prospective jurors for these purposes.

The examination of prospective jurors in a criminal case is governed by Rule 24(a), Hawaii Rules of Penal Procedure (same in Hawaii Rules of Criminal Procedure, at the time of trial), which reads:

(a) Examination of Jurors. The court shall permit the parties or their attorneys to conduct the examination of prospective jurors or shall itself conduct the examination. In the latter event the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper.

The right of trial by an impartial jury is guaranteed to a criminal defendant by the state constitution (Art. I, Sec. 11) and by the Sixth Amendment of the federal constitution as applicable to the States through the Fourteenth Amendment, as well by principles of due process under both the state and federal constitutions. State v. Pokini, 55 Haw. 640, 526 P.2d 94 (1974). Refusal of the trial court to make or permit sufficient inquiry into possible prejudices of prospective jurors may infringe these constitutional rights. The circumstances of a particular case may create a necessity for questioning prospective jurors specifically about racial prejudice during voir dire. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Defendants have been held to have the right to inquire into possible prejudices concerning their alleged ties with the Communist Party. Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815 (1950). It has been said that the right extends to examination into 'religious and other prejudices of a serious character'. Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 472, 75 L.Ed. 1054 (1931).

In State v. Pokini, supra, we reversed a conviction for the reason, among others, that the voir dire examination of prospective jurors had been unduly restricted. In the opinion of two members of this court, the pretrial publicity had been so extensive and so likely prejudicial as to constitutionally require an examination of the prospective jurors to determine the impartiality of those jurors who had been exposed to it. A third member of the court was not convinced that the nature and extent of pretrial publicity made the voir dire examination of the prospective jurors inadequate for the purpose of ascertaining whether or not a prospective juror was qualified to serve, but concluded that the prohibited inquiry into pretrial publicity should have been permitted to enable the defendants to exercise their peremptory challenges successfully. The remaining two members of this court were of the opinion that the voir dire procedure followed by the trial court was within its discretion in the absence of any demand for an individual voir dire prior to the exercise of the defendants' peremptory challenges.

It is clear that a defendant is not constitutionally entitled to examine into every possible prejudice which might be harbored by a prospective juror. In Ham v. South Carolina, supra, the Court refused to extend the right to include inquiry into possible prejudice against the defendant because he wore a beard. Even examination into possible racial prejudice is not constitutionally required in all cases.

The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Ham, supra, 409 U.S., at 527-528, 93 S.Ct., at 850. Voir dire 'is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.' Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895); see Ham, supra, 409 U.S., at 527-528, 93 S.Ct., at 850; Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931). This is so because the 'determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.' Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1423, 10 L.Ed.2d 663 (1963)$ (Clark, J., dissenting). Thus, the State's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant. (Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976).

In Ristaino, the Court rejected a per se rule that would have required voir dire on racial prejudice in any case involving a crime of violence where the defendant was of a different race than the victim, noting that the logic of...