State v. Apao
| Decision Date | 02 November 1978 |
| Docket Number | No. 6077,6077 |
| Citation | 59 Haw. 625,586 P.2d 250 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Roy Aiu APAO, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Due process requires that an indictment contain all the essential elements of the offense charged and the omission of an essential element of the crime charged is a defect in substance rather than form.
2. The better rule is to include in the indictment the allegations, which if proved, would result in application of a statute enhancing the penalty for the crime committed.
3. Where sufficient legal and competent evidence is presented to a grand jury the reception of illegal or incompetent evidence would not authorize the court to set aside an indictment if the remaining legal evidence considered as a whole is sufficient to warrant the indictment.
4. As a general rule evidence of other crimes committed by the accused is not admissible. However, this rule is subject to the well recognized exception that evidence of prior crimes is admissible to show motive or intent.
5. The test for determining whether photographs may be shown to the jury is not whether they are necessary, but whether their probative value outweighs their possible prejudicial effect.
6. The test of admissibility is not one of absolute proof of an ultimate issue in controversy but involves the question of relevancy of proof, relevancy not being dependent upon the conclusiveness of the testimony offered, but its legitimate tendency to establish a controverted fact.
7. A motion for mistrial will not be granted on the grounds of prosecutorial misconduct where it is shown that prosecutorial misconduct did not result in substantial 8. The standard of determining whether the evidence is sufficient to sustain a conviction is whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.
prejudice to appellant's fundamental right to a fair trial.
9. This court will not disturb the ruling of a lower court if the evidence of the prosecution is such that a reasonable mind might fairly conclude guilt beyond a reasonable doubt as to each element of the indictment.
10. The question on review of instructions is not whether they were technically correct, but whether defendant could have suffered prejudice on their account. In determining the sufficiency of a particular instruction, or part of a charge, it is not to be considered apart from its context, or the rest of the charge. Both in civil and in criminal cases the instructions of the court must be read together as one connected whole, to ascertain whether they correctly declare the law.
11. When the indictment charges a defendant as a principal, it is not error for the court to instruct the jury that under the facts of a particular case, the defendant may be guilty as an aider and abetter.
12. Since there is no evidence on the record to justify charging the appellant with manslaughter, refusal to give a manslaughter instruction was not reversible error.
Max Nakata Garcia, Honolulu, for defendant-appellant.
Roy Chang, Deputy Pros. Atty., Honolulu , for plaintiff-appellee.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
Defendant-appellant Roy Aiu Apao (hereinafter appellant) was found guilty by a jury of the murder on July 20, 1974, of Faafouina Tuaolo (hereinafter victim), a person known by the appellant to be a witness in a murder prosecution.
We affirm.
I. Whether the trial court erred in denying appellant's motion to dismiss the indictment.
II. Whether the trial court erred in denying appellant's motion in limine.
III. Whether the trial court erred in admitting into evidence prosecution exhibits 4, 5, 6 and 13.
IV. Whether the trial court erred in denying appellant's motion for mistrial.
V. Whether the trial court erred in denying appellant's motion for judgment of acquittal.
VI. Whether the trial court erred in its instructions to the jury as to the law of principals and accomplices.
VII. Whether the trial court erred in refusing to give appellant's requested instruction of the offense of manslaughter.
Appellant was indicted on November 21, 1974 for the crime of murder. The indictment read as follows:
The Grand Jury charges:
On or about the 20th day of July, 1974, in the City and County of Honolulu, State of Hawaii, ROY AIU APAO did intentionally or knowingly cause the death of Faafouina Tuaolo, a person known by Roy Aiu Apao to be a witness in a murder prosecution, by beating the said Faafouina Tuaolo, thereby committing the offense of murder in violation of Section 701 and 606(a)(ii) of the Hawaii Penal Code, Act 9, Session Laws of Hawaii, 1972.
Although the transcript of the grand jury hearing leading to this indictment has not been included as part of the record on appeal and is not before us, the briefs of appellee and appellant agree as to the following facts and we accept the facts as admissions. 1
On November 20, 1974, the grand jury heard testimony connecting appellant with the murder of the victim. Three witnesses were called to testify. The first witness, police officer William Ornellas, testified that appellant was involved in a prior murder prosecution as a defendant, and the victim had been a witness against the appellant in the prior case. Following the testimony of Ornellas, two other witnesses, Gilbert Mattos and detective Louis Souza, testified as to the events of July 20, 1974, the day the victim was killed.
On December 15, 1975, prior to the commencement of trial and out of the presence of the prospective jurors, appellant moved in limine to have the court preclude the prosecution from presenting any evidence that the defendant had been charged with murder in another case. The record shows that either in addition to or as part of the same motion, appellant moved to dismiss the indictment on the ground that the charge as stated in the indictment was "incorrect". Appellant moved for a mistrial and for a judgment of acquittal. The court denied all four motions.
At trial, three persons who were with the appellant and victim on the day of the killing, Gilbert Mattos, Dennis Labor, and Alexander Carvalho, testified as to the events of July 20, 1974.
Detective James Dang testified that at Ham's Flat, he found a strip of metal two and a half inches long and three-fourths inch wide and one-eighth inch thick near the victim's head. The metal piece was identified as Prosecution's Exhibit number 2. 2 Detective Dang also identified four photographs which he had taken at Ham's Flat on July 21, 1974, and which were marked as Prosecution's Exhibits 3, 4, 5, and 6.
Exhibit 4 is an eight-inch square color enlargement showing the victim as he was found by the police. The victim is shown lying on his back, fully clothed with his shirt out of place exposing his chest and abdomen. This exhibit is not a close-up. The photo shows what appears to be a cut on the victim's forehead near his hairline.
Exhibit 5 is also an eight-inch square color enlargement, this time a close-up of the victim's face, chest and his right arm, which bore a prominent tattoo. The photo shows the extent of the victim's injuries as his face is battered, bloody and swollen.
Exhibit 6 is an eight-inch square black and white enlargement depicting the victim lying face down on a sheet and showing the injuries to the back of his head. Exhibits 2, 3, 4, and 5 were subsequently introduced into evidence over defense attorney's objections.
The testimony of Alvin Majoska, forensic pathologist, established that death was caused by "compound comminuted fracture of the entire skull"; that the majority of the victim's injuries were in the skull area; that a punch by an individual could not have caused the fatal injuries; that the victim's death was caused by a "stick-type Detective Louis Souza testified that, following an interview with Alan Rapoza, he recovered a jack in a stream bed in the Waimanalo area. The stream where the jack was found matched the description of the stream into which witnesses Mattos and Carvalho testified Rapoza had thrown the jack used in the killing. Detective Souza identified the jack marked as Prosecution's Exhibit 13 as the jack which he had found. The jack was subsequently introduced into evidence over defense counsel's objections.
instrument, probably metal, with a cross section depicting a corner or a triangle." Dr. Majoska testified that he was familiar with bumper jacks and it was his opinion that a bumper jack could have been used to cause the injuries.
Near the close of trial on Wednesday, December 17, 1975, appellant requested an instruction regarding manslaughter. The record shows that no instruction on manslaughter was given. The trial court instructed the jury, over the objections of appellant, on the law of principals and accomplices as follows:
An accomplice is one who unites with another person or persons in the commission of a crime, voluntarily and with common intent. . . .
All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who knowingly and with criminal intent aid and abet in its commission or, whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty of the crime.
In other words all persons who are present and participate in the commission of a crime are responsible for the acts of each other done or made in furtherance of the crime.
It is not necessary to prove that each one committed all the acts of the crime.
Each person who does one act which is an ingredient of the crime or immediately connected...
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State v. Kato
...that a defendant does not need to be charged as an accomplice to permit the giving of an accomplice instruction. State v. Apao, 59 Haw. 625, 645, 586 P.2d 250, 263 (1978), superseded by statute on other grounds as stated in Briones v. State, 74 Haw. 442, 456 n.7, 848 P.2d 966, 973 n.7 (1993......
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State v. Jess
...cf. id. at 449 n. 19, 168 P.3d at 579 n. 19. 2. Apao, Estrada, and the intrinsic/extrinsic distinction In State v. Apao, 59 Haw. 625, 634, 586 P.2d 250, 257 (1978), this court observed that "due process requires that an indictment contain all of the essential elements of the offense charged......
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State v. Acker
...gave Maryann notice that she was subject to a mandatory minimum sentence if she was convicted as a principal. State v. Apao, 59 Haw. 625, 635–36, 586 P.2d 250, 257–58 (1978). In Apao, the defendant was charged with the murder of an individual that was a witness in a murder prosecution, thus......
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State v. Cutsinger
...and found by the jury," [State v.] Estrada, 69 Haw. 204] at 229, 738 P.2d [812] at 829 [(1987)] (quoting State v. Apao, 59 Haw. 625, 635-36, 586 P.2d 250, 258 (1978)). "[S]uch aggravating circumstances 'must be alleged in the indictment in order to give the defendant notice that they will b......