State v. Cummings

• Citation: 49 Haw. 522,423 P.2d 438
• Decision Date: 20 January 1967
• Docket Number: No. 4469,4469
• Parties: STATE of Hawaii v. Robert Kaimi CUMMINGS.
• Court: Supreme Court of Hawai'i

Page 438

423 P.2d 438

49 Haw. 522

STATE of Hawaii v. Robert Kaimi CUMMINGS.

No. 4469.

Supreme Court of Hawai'i.

Jan. 20, 1967.

Syllabus by the Court

1. Questions not properly raised so as to have been considered and ruled upon by the trial judge will not be considered and passed upon for the first time on appeal.

2. An appellate court may consider questions raised for the first time on appeal if necessary to serve the ends of substantial justice or prevent the denial of fundamental rights.

3. Erroneous admission of evidence may constitute plain error if a fair trial of the accused was thereby impaired or if it substantially prejudiced the accused.

4. The two requisite conditions rendering a statement involuntary and inadmissible under the principles established by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, in a situation where those principles apply, are (1) the defendant had requested and been denied counsel, and (2) that he had not been effectively warned of his constitutional right to remain silent.

5. The test on appeal of the sufficiency of the evidence to support a finding of guilt is not whether guilt is established beyond a reasonable doubt but whether there is substantial evidence to support the conclusion of the trier of fact.

6. An appellate court will not attempt to reconcile conflicting evidence. A finding of guilt in any case involving conflicting evidence and depending on a determination of credibility of witnesses or the weight of the evidence is invulnerable when attacked on appeal if there is any substantial evidence amounting to more than a mere scintilla tending to support the findings necessary to the judgment rendered.

7. Mere presence at the scene of an offense in the absence of other circumstances does not make one a principal to the offense. However, presence at the scene of an offense may be considered in connection with other circumstances in determining whether or not a person is a principal therein.

8. One who engages with others in the commission of an unlawful act is criminally responsible for everything done by his confederates which follows incidentally in the execution of the common design as one of its probable and natural consequences.

Patrick F. Tuohy, Honolulu, for defendant-appellant.

John H. Peters, Pros. Atty., and Edwin Y. Sasaki, Deputy Pros. Atty., for the State, plaintiff-appellee.

Before RICHARDSON, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

WIRTZ, Justice.

Defendant-appellant brings this appeal from his conviction for robbery in the second degree under an information charging that he 'did steal Five Dollars ($5.00) from John Howard Perillo by putting him in fear * * *.' After a jury-waived trial defendant was found guilty and the judgment appealed from suspended the execution of the twenty-year prison sentence for a probationary period of three years while providing specially that defendant 'serve weekends in the Honolulu Jail, commencing on Friday at 6:00 p. m. to Monday at 6:00 a. m., for a period of THREE MONTHS * * *.'

At approximately 12:40 a. m. on July 23, 1964, defendant and George Enoka were riding in a Chevrolet two-door sedan which was being operated by defendant's cousin, a juvenile, in the Waikiki area of Honolulu. At the time, the automobile was being driven in a westerly (Ewa) direction on Kalakaua Avenue and was brought to a halt by the stoplight at the intersection of Kalakaua and Seaside Avenues. Here, Perillo, an enlisted Navy man, was offered and accepted a ride back to his post at Pearl Harbor. Enoka was seated on the right front seat next to the driver while Perillo was seated on the left rear seat next to defendant, who was on the right side directly behind Enoka. The vehicle continued to be driven in a westerly (Ewa and towards Pearl Harbor) direction along Kalakaua Avenue until the intersection with Ala Moana Boulevard. There it was turned left and continued along Ala Moana Boulevard to the eastern (Diamond Head) entrance of Ala Moana Park. The sedan was then driven into the park. Prior to entering the park, Perillo produced what he described as 'a diving knife' and exhibited it to Enoka and defendant.

What thereafter occurred is the subject of conflicting testimony as follows.

Perillo testified that he took the knife out of his bag for the sole purpose of showing it to the occupants of the autombile as a prized possession. ¹ He handed the knife to Enoka who examined it. At about this time Enoka turned and struck Perillo asking him for his billfold and all his money. Perillo handed a five dollar bill to Enoka. He was 'scared spitless.' He pleaded with defendant to 'try to talk his friend out of doing what he was going to do,' but was told by defendant that 'he couldn't do anything, the guy that was sitting in the front seat on the passenger side was the boss.' Thereafter, he was driven to a school where he was pulled out of the car and struck by Enoka before being released.

Defendant testified that Perillo pulled the knife out of the bag he was carrying and as he wiped the blade said it was for 'protection.' Enoka then grabbed the knife and punched Perillo as he took it away from him. Whereupon Perillo panicked and took a five dollar bill out of his pocket and threw it at Enoka in the front seat without being asked for it. Defendant insisted that the purpose of their being in the Waikiki area was to look for girls and that they were going to pick up a girl named Alice in Ala Moana Park.

Detective Chu of the Honolulu Police Department testified that subsequent to defendant's arrest and while still in police custody, defendant told him that as they were driving towards Waikiki earlier, he, Enoka and the juvenile driver 'all agreed to look for trouble with haoles.' ²

Of the four points that counsel for defendant indicated he would rely upon in this appeal in Forma pauperis, two were abandoned in the opening brief and the remaining two were consolidated in the sole specification of error presented in this appeal, namely 'that the verdict ³ was contrary to law and the weight of evidence.'

One of the points that defendant's counsel intended to rely upon in this appeal and later abandoned in the opening brief was that 'the Court erred in allowing in the evidence the oral statements made by defendant Robert Kaimi Cummings after an illegal arrest.' This referred to the oral statement testified to by Detective Chu, namely, that while in police custody the defendant told him that prior to the alleged robbery he, Enoka and the juvenile driver 'all agreed to look for trouble with haoles.' In this connection Detective Chu further testified that defendant was informed before he made this statement 'that whatever he (the defendant) tells me could be used for him or against him at the trial at a later date' and that defendant made no requests prior to making this statement.

The only objection made to the admissibility of this statement in evidence was the illegality or irregularity of defendant's arrest. The sole basis was that it followed an illegal or irregular arrest and that it was made while defendant was being illegally detained. That counsel abandoned this point on appeal is understandable in view of the basis of the objection made. Counsel for defendant did not further question the admissibility of this statement in his briefs and at the argument on this appeal.

After the conclusion of the argument this court posed the question as to whether or not it could, nonetheless, consider sua sponte the question of the admissibility of this oral statement in evidence under the principles established by Escobedo v. State of Illinois, 378 U.S 478, 490, 491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977, the essence of the holding being stated by the court as follows:

'* * * that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. (335), at 342, 83 S.Ct. (792), at 795 (9 L.Ed.2d 799) and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.'

The true nature of appellate review has long been recognized in Hawaii. It is well established by statute, ⁴ rule ⁵ and decision in criminal as well as civil proceedings that questions not properly raised so as to have been considered and ruled upon by the trial judge will not be considered and passed upon for the first time on appeal. Territory v. Santana, 37 Haw. 586; Territory v. Gagarin, 36 Haw. 1; Territory v. Chong, 36 Haw. 537; Territory v. Tsutsui, 39 Haw. 287; State v. Shon, 47 Haw. 158, 385 P.2d 830; State v. Pokini, 45 Haw. 295, 367 P.2d 499; State v. Arena, 46 Haw. 315, 379 P.2d 594.

Recently the Supreme Court of the United States has ruled on the question of whether a state, under certain particular circumstances, violated the accused's constitutional rights in refusing to review a 'federal claim' on appeal on the ground that the application of the state's procedural rule precluded review on appeal of questions not raised below. O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (November 14, 1966). And see, Westover v. United States, 384 U.S 436, 494, note 69, 86 S.Ct. 1602, 1639, 16 L.Ed.2d 694 (No. 761, decided June 13, 1966 in connection with Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). However, O'Connor is...