State v. Decenso, 8764

• Decision Date: 03 April 1984
• Docket Number: No. 8764,8764
• Citation: 681 P.2d 573,5 Haw.App. 127
• Parties: STATE of Hawaii, Plaintiff-Appellee, Cross-Appellant, v. Fred Albert DECENSO, Defendant-Appellant, Cross-Appellee.
• Court: Hawaii Court of Appeals

Page 573

681 P.2d 573

5 Haw.App. 127

STATE of Hawaii, Plaintiff-Appellee, Cross-Appellant, v. Fred Albert DECENSO, Defendant-Appellant, Cross-Appellee.

No. 8764.

Intermediate Court of Appeals of Hawai'i.

April 3, 1984.

Syllabus by the Court

1. An investigative stop is constitutional if the facts known to the officer, judged against an objective standard, would warrant a person of reasonable caution to believe that criminal activity is afoot and that an investigative stop is appropriate.

2. When defendant challenges the admissibility of eyewitness identification on grounds of impermissibly suggestive pretrial identification procedure, he or she has the burden of proof, and the court, trial or appellate, is faced with two questions: (1) whether the procedure was impermissibly or unnecessarily suggestive; and (2) if so, whether, upon viewing the totality of circumstances, such as opportunity to view at the time of the crime, the degree of attention, the accuracy of prior description, the level of certainty, and the elapsed time, the witness' identification is deemed sufficiently reliable so that it is worthy of presentation to and consideration by the jury.

3. An accused has no constitutional right to have counsel present when the state conducts a post-arrest photographic line-up.

4. The federal and state constitutions do not entitle the accused to assistance of counsel at pretrial photographic line-ups or at preindictment show-ups.

5. Unless a witness denied to defendant could have produced relevant and material testimony benefitting the defense, the denial does not violate the defendant's constitutional right to compulsory process.

6. Where two criminal offenses are at issue, and each is supported by different acts even though separated in time by only a few seconds, one offense cannot be included in the other.

7. Where a defendant succeeds during trial in having a charge against him dismissed without submitting the question of guilt or innocence to the judge or jury, the double jeopardy clause does not bar a second trial of that charge.

David Bettencourt, Honolulu, for defendant-appellant, cross-appellee.

Peter Esser, Deputy Pros. Atty., Honolulu (Arthur E. Ross, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee, cross-appellant.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

BURNS, Chief Judge.

Defendant Fred Albert DeCenso (DeCenso) appeals from a jury conviction of sex abuse in the first degree. ¹ He alleges that the lower court erred in: 1) admitting into evidence items seized from him; 2) admitting into evidence the complainant's identification of him; and 3) refusing to allow him to call the complainant as his own witness. We affirm.

The State of Hawaii (State) cross-appeals from the order granting DeCenso's motion to dismiss count I of the indictment which charged him with kidnapping. ² We reverse.

On July 14, 1981 a man came up behind a 12-year-old girl (complainant) as she was walking on the grounds of an Oahu high school. He placed his hands over her mouth and told her not to say anything or she would be hurt. Then he placed her face down on the ground and tied her hands with a piece of cord. After turning her over, he sexually molested her for approximately one minute before running away. Immediately after the incident the complainant described her assailant to Officer Gilfillan, the investigating officer, as "a forty to fifty year old Caucasian male, gray hair, wearing prescription sunglasses, light blue Aloha shirt, dark blue shorts, approximately five foot 6 inches tall, medium to heavy build." She also stated that as she was running home after the incident she saw a silver Honda-type car make a sharp U-turn on the road adjacent to the school grounds. She gave essentially the same description to an Officer Kawaa the next day. Additionally, she told Officer Kawaa that her assailant was "clean shaven."

Three days later, on July 17, 1981, a silver Ford Fiesta automobile was observed by Officer Chun as it made a U-turn in the vicinity of the alleged assault. Officer Chun testified that he observed the Fiesta slow down as it passed two girls. The driver parked his car, got out, went behind some bushes while the two girls walked by, and then briefly followed them. After the driver got back into his car and drove off, Officer Chun called assisting units and established a surveillance of the car. During the next fifty minutes, the car stayed within a two-mile radius of the school, returning there twice. The officers then stopped the car and held the driver for identification.

The complainant was driven past the scene and positively identified DeCenso as her assailant. This show-up identification was conducted with DeCenso standing between one non-Caucasian plain-clothed policeman and one uniformed policeman described by Officer Chang as "a local male ... [d]ark complected, dark hair[.]" DeCenso, a Caucasian, was then 39 years old, five feet seven and a half inches tall, approximately 175 pounds, and wore a full moustache.

After the show-up identification, DeCenso was arrested and searched. An officer recovered a piece of cord from DeCenso's coat pocket which matched the cord the assailant had used to tie complainant's hands.

On August 7, 1981 an eight-person photographic line-up was conducted and the complainant again identified DeCenso as her assailant. Seven of the eight persons pictured, including DeCenso, wore moustaches.

On October 21, 1981 the Oahu Grand Jury returned a two-count indictment charging DeCenso with kidnapping under Hawaii Revised Statutes (HRS) § 707-720(1)(d) (count I) and sexual abuse in the first degree under HRS § 707-736(1)(a) (count II). On February 16, 1982 the court denied DeCenso's motions to suppress the in-court eyewitness identification by the complainant and the cord taken from his pocket. These motions were made on the basis that the initial detention of DeCenso was unconstitutional; that the pretrial show-up procedure was impermissibly suggestive; and that DeCenso was denied the right to have counsel present during the show-up and photographic line-up identification. On March 15, 1982, before the jury was impaneled, DeCenso moved on double jeopardy grounds to force the State to elect between counts I and II. On March 18, 1982, after the State rested but before DeCenso rested, the court obtained DeCenso's permission to treat the motion as a motion to dismiss based upon HRS § 701-109(1)(a). Thereupon, the court orally granted the motion by dismissing the kidnapping count. A written order was subsequently filed.

At trial the complainant testified that DeCenso was her assailant although she had not noticed that her assailant wore a moustache at the time that he attacked her. Following the State's case-in-chief, the court upheld the State's motion to deny DeCenso's request to recall the complainant as his own witness.

DeCenso was sentenced to imprisonment for five years.

I. VALIDITY OF THE STOP

DeCenso contends that his initial stop by the police on July 17, 1981 violated the fourth amendment of the United States Constitution and article I, section 7 of the Hawaii State Constitution. If so, any confrontation identification and evidence seized incident to the subsequent arrest must be suppressed as fruits of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The standard applicable in determining whether DeCenso's constitutional rights were violated when the police stopped him as he was driving his automobile is set forth in State v. Bennett, 62 Haw. 59, 62, 610 P.2d 502, 505 (1980), as follows:

[I]n order for a police officer to conduct a valid stop ..., he must have observed specific conduct on the part of the person whom he is about to stop ..., or have reliable information from which he may reasonably infer that criminal activity is afoot.... And the test of whether the officer's conduct of intrusion was reasonable is to be determined by whether the facts known to the officer, judged against an objective standard, would warrant a man of reasonable caution to believe that the action taken was appropriate.

In determining the reasonableness of the officer's conduct, the information which he has on hand is vital, but he is not limited to his own personal knowledge. Where police officers are acting in concert and are keeping each other informed of the progress of a particular investigation, the knowledge of each is deemed the knowledge of all. State v. Barnes, 58 Haw. 333, 336, 568 P.2d 1207, 1210 (1977). Also what is reasonable depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878 [95 S.Ct. 2574, 2579, 45 L.Ed.2d 607] (1975).

In this case the actions of the driver before the stop, coupled with the information obtained from the complainant, were sufficient to justify the investigative stop. Bennett, supra, 62 Haw. at 64, 610 P.2d at 506. See also State v. Goudy, 52 Haw. 497, 479 P.2d 800 (1971).

II. ADMISSIBILITY OF THE "SHOW-UP" IDENTIFICATION

DeCenso contends that the initial show-up identification was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and that the ensuing photographic line-up and in-court identification were tainted by the initial streetside identification procedure.

The standard for admissibility of eyewitness identifications is the test set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which was most recently reiterated by this court in State v. Tuua, 3 Haw.App. 287, 289, 649 P.2d 1180, 1183 (1982). In Tuua we stated:

When the defendant challenges admissibility of eyewitness identification on the grounds of impermissibly suggestive pretrial identification procedure, he or she has the burden of proof, and the court, trial or...