State v. Chong

• Decision Date: 22 July 1982
• Docket Number: No. 8090,8090
• Citation: 3 Haw.App. 246,648 P.2d 1112
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Edward Louis CHONG, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 1112

648 P.2d 1112

3 Haw.App. 246

STATE of Hawaii, Plaintiff-Appellee, v. Edward Louis CHONG, Defendant-Appellant.

No. 8090.

Intermediate Court of Appeals of Hawai'i.

July 22, 1982.

Syllabus by the Court

1. Evidence of acts of a defendant subsequent to the offense charged is admissible at trial, even though they may be interpreted as constituting other criminal acts, where the evidence is relevant to and for the limited purpose of proving defendant's intent and where defendant is not unfairly prejudiced.

2. Where evidence of other acts by defendant has been admitted as probative and not unfairly prejudicial, it is not error for trial court not to instruct jury to disregard that evidence when the court later refused to admit into evidence a tape recording of telephone conversations relating to those acts on the grounds the tape would have a prejudicial effect and interject collateral issues, where the trial court was not requested to do so.

3. Where no objection was made to trial court's failure to give jury an instruction that evidence of other acts of defendant was to be considered only for the purpose of determining intent and defendant did not request such a limiting instruction, Rule 30(e), Hawaii Rules of Penal Procedure (1977) precludes defendant from raising the matter on appeal and the appellate court will not consider the matter where record indicates defendant was not deprived of his fundamental right to a fair trial.

4. Viewing the evidence in the light most favorable to the prosecution, it was sufficient to support the jury's verdict.

Christopher Bouslog, Alvin T. Sasaki, Nelson W. S. Goo, Deputy Public Defenders, Honolulu, for defendant-appellant.

Vicente F. Aouino, Deputy Prosecuting Atty., Honolulu, for plaintiff-appellee.

Before BURNS, C. J., HEEN, J., and TSUKIYAMA, Circuit Judge, assigned by reason of vacancy.

HEEN, Judge.

Defendant appeals from a judgment of conviction on a charge of bribery, Hawaii Revised Statutes (HRS) § 710-1040(1)(b) (1976). Section 710-1040(1)(b) states in part:

(1) A person commits the offense of bribery if: ...

(b) While a public servant, he solicits, accepts, or agrees to accept, directly or indirectly, any pecuniary benefit with the intent that his vote, opinion, judgment, exercise of discretion, or other action as a public servant will thereby be influenced; ...

Defendant bases his appeal on the following grounds: 1) the trial court erred in admitting testimony regarding meetings and conversations between the defendant and witnesses subsequent to the alleged bribe; 2) the trial court erred when, upon later refusing to admit the tapes of the conversations into evidence on grounds of their prejudicial effect and interjection of collateral issues, it failed to instruct the jury to disregard the evidence of the subsequent meetings and conversations already admitted; 3) the trial court erred when it failed to instruct the jury that evidence of subsequent acts should be considered only for purposes of determining intent; and 4) the evidence was insufficient to support the finding that appellant was guilty beyond a reasonable doubt of the offense of bribery.

We find no reversible error and affirm the judgment.

FACTS

On November 16, 1979, the defendant, who was then an officer with the Honolulu Police Department, stopped Hwa Young Cho for speeding. Cho was driving a taxi. Defendant, after discussion with Cho and inspection of his taxi, issued a total of seven citations to Cho. Cho was disturbed by this and asked the defendant if he would be available at the police station the following day to discuss the matter. Defendant replied that if Cho wanted to talk about it, he could find defendant at Fisherman's Wharf at 11:00 that night.

Cho approached the defendant that night at the restaurant. At this point the testimony of defendant and Cho differs as to what transpired. Cho testified he showed defendant the citations along with documents tending to prove that some of the citations were inappropriate. The defendant then asked Cho what he wanted the defendant to do. Cho replied that he wanted defendant to resolve his problems with regard to the citations. Nothing was said for ten minutes; then Cho gave defendant an envelope. Defendant asked what it was. Cho replied it was $200 and stated that he hoped defendant could solve his problems. According to Cho's testimony, defendant then placed the envelope in a book and began calculating in the book. Defendant informed Cho that there would be an assessment of 10 points and a fine of $300 from those citations. As they left the restaurant, defendant told Cho not to get any more tickets and that he would call him within 3 days if anything went wrong.

The defendant's testimony as to the meeting at the restaurant was similar to Cho's testimony with respect to the initial contact and the finish of the meeting. Defendant testified that when Cho came over to his table, defendant asked Cho what he wanted to talk about. Cho stated that he had something there for the defendant and produced two envelopes. Cho then slid one of the envelopes towards the defendant. Defendant inquired as to the contents of the envelope and Cho replied it was $200. Defendant pushed the envelope back to him and stated that he did not do things like that. Cho left but returned five to ten minutes later. Cho looked very despondent. After some moments of silence, Cho stated that the tickets would cause him a great business hardship and also that he had many domestic problems. Defendant testified that he felt sorry for Cho and thought that he would try to do something for him. He told Cho that he would attempt to obtain a bail forfeiture for the citations as he had previously done for himself and his mother. Cho agreed and gave defendant the citations and the money. Defendant stated that he would pay for the bail forfeitures with the money that Cho gave him.

Defendant testified that he attempted to see certain people in the Traffic Violations Bureau about arranging bail forfeitures, but was unable to do so for a couple of days. When he finally did get to see one of the workers, she informed defendant that Cho's traffic abstract indicated an outstanding violation and bail forfeiture could not be accomplished. Defendant testified that he attempted to contact Cho with regard to this but was unable to reach him.

In December, Cho and Anthony Francisco, a fellow cab driver, went to look at Cho's traffic abstract and found that the violations were still outstanding. They then went to the police department and reported that he had given defendant $200 to take care of his tickets, but defendant had not done so. Subsequently, Cho called defendant by phone and asked about the return of his $200. The defendant by then had been informed of the bribery complaint against him. Defendant told Cho that he was not going to return the money unless Cho dropped the bribery charges. Francisco also spoke to defendant. Arrangements were made for the three to meet at Maryknoll School. Both telephone conversations were recorded on tape by the police.

When the three met at Maryknoll School later that day, defendant allegedly told Cho to appear in traffic court on the appointed day and ask for a continuance of his case to a later date. Defendant would not appear in court on the later date and the case would be dismissed. When Cho asked about the money, the defendant allegedly stated that if the bribery charges were dropped, the money would be returned.

At his initial appearance in court, Cho asked for a continuance. On the later date, the defendant was not present and the case was dismissed.

During the trial the court allowed Cho to testify about the phone calls and the meeting at Maryknoll. Defendant's objection to the testimony as being prejudicial and irrelevant was overruled. A request by defense counsel to instruct the jury prior to the testimony as to the use of that evidence solely for the determination of the intent of the defendant was also denied.

Francisco also testified about the phone calls and the meeting. Defense counsel's objection to this testimony was also overruled by the trial judge.

The prosecutor subsequently attempted to introduce the tape recordings of the telephone conversations between Cho, Francisco and defendant. Defense counsel objected on the basis of relevancy and prejudice. The trial court ruled that the tapes dealt with collateral materials and were prejudicial and sustained the objection.

At the close of the case, the prosecution again attempted to have the tapes admitted into evidence but the court again denied the request.

When the court met with counsel to settle jury instructions, defense counsel did not request an instruction limiting the jury's consideration of the evidence of the telephone calls and the meeting at Maryknoll.

I. WAS THERE ERROR ON THE PART OF THE TRIAL COURT IN ADMITTING TESTIMONY OF ACTS SUBSEQUENT TO THE ALLEGED BRIBE?

Rule 404(b), Hawaii Rules of Evidence (HRE), Chapter 626, HRS (effective January 1, 1981), states that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible where such evidence is probative of any other fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.

Although the statute was not in effect at the time of trial, it is an accurate codification of existing case law. See, Commentary to Rule 404(b). Generally, evidence which tends to prove the commission of crimes other than the crime charged is not admissible. State v. Apao, 59 Haw. 625, 586 P.2d 250 (1978). The basic reason is to prevent previous acts or convictions of the defendant from being used as an inference that the defendant committed the crime...