State v. Emmsley

• Decision Date: 27 October 1982
• Docket Number: No. 8126,8126
• Citation: 3 Haw.App. 459,652 P.2d 1148
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. William Emil EMMSLEY and Rudolph P. Na'o, Jr., also known as Bandit and Rudy, Defendants-Appellants, and Richard A. Canape, also known as Frito, Defendant.
• Court: Hawaii Court of Appeals

Page 1148

652 P.2d 1148

3 Haw.App. 459

STATE of Hawaii, Plaintiff-Appellee, v. William Emil EMMSLEY and Rudolph P. Na'o, Jr., also known as Bandit and Rudy, Defendants-Appellants and Richard A. Canape, also known as Frito, Defendant.

No. 8126.

Intermediate Court of Appeals of Hawai'i.

Oct. 27, 1982.

Certiorari Denied Dec. 10, 1982.

Syllabus by the Court

1. In ruling upon a motion for judgment of acquittal, the standard to be applied by both the trial court and the appellate court is whether, upon the evidence viewed in the light most favorable to the government, and giving full play to the right of the jury to determine credibility, weigh the evidence, and draw therefrom justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.

2. An inference is a logical and reasonable conclusion of the existence of a fact in a case, not presented by direct evidence as to the existence of the fact itself, but inferred from the establishment of other facts from which, by the process of logic and reason, and based upon human experience, the existence of the assumed fact may be concluded by the trier of fact.

3. Where defendants were charged with carrying firearms without permit or license, evidence that one defendant had a "revolver" and the other a "handgun" was sufficient to justify an inference by the jury that those firearms had barrels less than twelve inches in length.

4. Evidence of other offenses by a witness, sought to be introduced to impeach his credibility must be probative of the issue of his veracity. Convictions that involve dishonesty or false statement, such as perjury, are relevant to that issue.

5. The scope and extent of cross-examination of a witness is within the sound discretion of the trial judge.

6. On appeal the trial court's exercise of its discretion with regard to the scope and extent of cross-examination on collateral matters bearing on credibility will not be disturbed absent a strong showing by appellant of abuse.

7. To constitute abuse of discretion in determining the scope and extent of cross-examination, it must appear that the trial court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.

8. Where accused was afforded extensive cross-examination on witness' penchant and motive for lying, any abuse of discretion by trial court in not allowing cross-examination on witness' compensation for testifying or prerogative of prosecutor to nullify plea agreement was harmless.

9. Where accused was afforded extensive cross-examination on witness' penchant and motive for lying, any abuse of discretion by the trial court in not allowing proof of witness' prior convictions of other offenses was harmless.

10. Whether a trial court's ruling that a police informant's name should not be disclosed is erroneous depends upon a balancing of the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony and other relevant factors.

Leslie S. Fukumoto, Honolulu (Blake T. Okimoto, Honolulu, with him on briefs; Pyun, Kim & Okimoto, Honolulu, of counsel), for defendant-appellant William Emil Emmsley.

Richard K. Perkins, Honolulu (Yuen & Perkins, Honolulu, of counsel) for defendant-appellant Rudolph P. Na'o, Jr.

Lila LeDuc, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

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

HEEN, Judge.

Defendants William Emil Emmsley (Emmsley) and Rudolph P. Na'o, Jr. (Na'o) appeal from their convictions of murder under Hawaii Revised Statutes (HRS) § 707-701 (1976) and carrying a pistol or revolver on their persons without a permit or license under HRS § 134-9 (1976, as amended).

Defendants jointly raise two points of error by the trial court and individually raise a separate point each.

The points of error jointly raised are:

1. That the trial court erred in denying their motions for judgment of acquittal made at the close of the State's case; and

2. That the trial court erred in not permitting defendants to impeach the State's key witness, Richard Canape (Canape), by proving that he had been adjudged by the family court to be a juvenile law violator due to his commission of the offenses of malicious conversion ¹ and larceny.

Emmsley individually contends that the court erred in not allowing him to cross-examine Canape as to compensation he may have received from the State in exchange for his testimony as part of a plea bargain, and the prerogative of the prosecutor to nullify the agreement.

Na'o contends that the trial court erred in not requiring the State to furnish him the name of a confidential police informant.

We find no reversible error and affirm.

On August 6, 1980, the Oahu Grand Jury returned a three-count indictment against the defendants. In Count I, the defendants were jointly charged with the murder of Ruth Bender (Bender) by shooting her with a firearm. In Counts II and III, Emmsley and Na'o, respectively, were each charged with carrying a pistol or revolver on his person without a permit or license.

The State's entire case rested on the testimony of Canape, who was an accomplice. Canape testified that on April 28, 1980, he rented a car and picked up Emmsley and a person named Darrell at about 8:00 or 8:30 p.m., "to go cruising." They eventually ended up at Jimmy's bar on Hotel Street in downtown Honolulu. While they drank and played pool, Darrell left. Na'o came into the bar and called Emmsley out. About fifteen minutes later they returned and Emmsley asked Canape if he could give them a ride. Canape agreed and the three left the bar.

Outside the bar they approached Bender, and Na'o asked her if she had the money she owed him. Bender replied that she did not, and Na'o stated he had to call his partner. He then went across the street to use a phone. At this time Bender was crying. Na'o rejoined Canape, Emmsley, and Bender and told them that they should go. They got into the rented automobile and Canape drove, with Na'o and Bender sitting in the rear seat and Emmsley in the front passenger seat.

Na'o directed Canape to drive to Kunia. On the way, Na'o said he was going to shoot Bender because she owed him $200. As he drove, Canape saw Emmsley loading a .22 caliber revolver. Along the way, Bender was crying and Na'o struck her saying it was too late, that she was going to die. At Na'o's direction, Canape drove to "the old loading dock" in Kunia. When they arrived, he was told to reverse the car into a dirt road and turn off the lights. Na'o instructed Bender to remove her clothing and jewelry and place them in her bag. Emmsley, Na'o and Bender got out of the car. As they walked behind the car, Na'o grabbed Bender, threw her towards the bushes, and started firing at her. After three or four shots, Na'o stopped and told Emmsley to shoot. Emmsley then shot four or five times, and Na'o shot a "couple more" times.

When the shooting stopped, Na'o directed Canape to turn the car around, turn on the lights, and help him look for cartridge shells. When he turned the lights on, Canape saw Bender's body. They did not find any shells and Canape, Na'o and Emmsley got back into the car. Canape then drove to Na'o's house in Maili where Emmsley and Na'o rubbed vinegar on their arms to "take the gun powder smell off." They then drove to another house where Na'o dropped off Bender's belongings and Na'o's "handgun." Canape testified that Na'o placed the "handgun" in Bender's bag. They had left the murder scene about 2:00 a.m. and, after the trip to Maili, returned to Honolulu. Na'o then drove in his own car with some friends to Ala Moana Park, where they met Canape and Emmsley, who had driven in the rental car, and drank some beer. At the park, Na'o told Emmsley and Canape not to tell anybody what happened or they would end up like Bender.

1.

Defendants' point of error regarding their motions for judgment of acquittal is directed only to Counts II and III of the indictment. They argue that there was no evidence presented at trial to show or from which to infer that the firearms they were alleged to have possessed had barrels less than twelve inches in length and, therefore, the court erred in not granting their motions. ²

Initially, we address Na'o's decision to proceed with his defense by calling Officer Vernon Branco (Branco) to testify. In State v. Halemanu, 3 Haw.App. 300, 650 P.2d 587 (1982), cert. denied, October 7, 1982, we adopted the majority rule that a defendant who presents evidence after denial of his motion for judgment of acquittal at the close of the state's case thereby waives any error in that ruling by the trial court.

We are aware that the "waiver doctrine" has been subjected to criticism, and some jurisdictions have fashioned exceptions or limitations to its application to ameliorate its apparently harsh effect. See State v. Simpson, 64 Haw. 363, 641 P.2d 320 (1982). While not specifically adopting the waiver doctrine, our supreme court in Simpson, 64 Haw. at ---, 641 P.2d at 325, noted that it serves an important function in the criminal justice system in that it requires the defendant, if he presents evidence after denial of his motion, to assume the risk that his evidence may in fact be favorable to the government. The court ruled in Simpson, however, that, regardless of whether only the government's evidence or all the evidence was considered, there was sufficient evidence presented such that the trial court's denial of the motion was proper. Id. 64 Haw. at ---, 641 P.2d at 326.

Likewise, finding the evidence in the case before us to be sufficient in either event, it is not necessary for us to rule that Na'o waived any error in the trial court's ruling on his motion. This is especially so, since neither defendant renewed his motion for judgment of acquittal at the end of the trial.

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