State v. Evans

• Decision Date: 01 June 1962
• Docket Number: No. 4219,4219
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Robert Joseph EVANS, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 365

372 P.2d 365

45 Haw. 622

STATE of Hawaii, Plaintiff-Appellee, v. Robert Joseph EVANS, Defendant-Appellant.

No. 4219.

Supreme Court of Hawai'i.

June 1, 1962.

Syllabus by the Court

1. When articles have been seized in defendant's home for use in evidence against him he can invoke the protection of the search and seizure clause (Article I, section 5, of the State Constitution) on the ground of possession of the premises where the seizure was made, without asserting ownership of the property seized.

2. The Hawaii Rules of Criminal Procedure apply 'so far as just and practicable [to] all proceedings then [on July 1, 1960] pending.' H.R.Cr.P., Rule 59. Upon examination of the record in this case, which was pending on July 1, 1960, held it would not be 'just and practicable' to apply H.R.Cr.P., Rule 41(e), which requires a pre-trial motion to suppress evidence obtained by an unlawful search and seizure, and accordingly the question whether a pre-trial motion was required in this case will be judged under the prior case law.

3. In cases governed by the Hawaii Rules of Criminal Procedure it will be incumbent upon the trial court to enforce Rule 41(e) thereof. If a contention of unlawful search and seizure is presented without pre-trial motion, it will be for the trial court to decide whether it will entertain the matter at the trial pursuant to the last sentence of Rule 41(e) which provides that may be done (1) if opportunity for a pretrial motion did not exist, or (2) if defendant was not aware of the grounds for the motion, or (3) in the discretion of the court.

4. In a case not governed by the Hawaii Rules of Criminal Procedure but by the prior case law, when the unlawfulness of a search and seizure is shown by the prosecution's own evidence, which leaves no reasonable possibility that, upon a pre-trial motion, other evidence would have been elicited showing the lawfulness of the search, failure of defendant to make a pre-trial motion to suppress the evidence obtained by the search and seizure is not fatal and the evidence so obtained cannot be used against him.

5. When police officers, who had defendant in custody, proceeded to defendant's home and without a search warrant but with the consent of his wife, searched his personal effects to discover jewelry hidden in a cuff link case in a bedroom bureau drawer, including a ring subsequently identified as one of the articles taken during the burglary charged, the search and seizure were unreasonable.

6. A confession otherwise shown to have been voluntary is not rendered inadmissible by the fact that its author was under arrest at the time, even if there was a failure of compliance with State requirements relating to taking of an arrested person before a magistrate.

7. When there has been an unlawful search and seizure, and the contention that defendant's confession was tainted thereby is made for the first time in this court on an inadequate record, this court will not rule on the admissibility of the confession but will reverse on account of the unlawful search and seizure and remand for further proceedings.

8. Upon trial on a charge of burglary of 'the store of [I.M.R.], doing business as Mai Fai Jewels,' there was no variance though the evidence showed that I.M.R., who was in charge of the store, had a partner.

9. Proof that the offense was committed in the nighttime is essential to a conviction of first degree burglary, but the time of the commission of the offense is not an essential element of the corpus delicti and defendant's confession is sufficient proof that it was during the nighttime.

Edward Berman, Honolulu (O. P. Soares, Honolulu, with him on the brief), for appellant.

Kenneth K. Saruwatari, Deputy Pros. Atty., Honolulu (John H. Peters, Pros.Atty., Honolulu, with him on the brief), for appellee.

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

LEWIS, Justice.

After jury trial, defendant-appellant was convicted of burglary first degree. The charge was that defendant 'on the 13th day of January, 1960, during the nighttime, feloniously did enter the store of Isabel M. Rosenberg, doing business as Mai Fai Jewels, with intent to commit larceny therein * * *.' On this appeal from the conviction the following contentions have been argued:

1. That a jade and diamond ring, subsequently identified as one of the articles taken from Mai Fai Jewels during the burglary, was located in and taken from defendant's home by an unlawful search and seizure.

2. That defendant's confession (a) was 'unlawfully obtained, while the appellant was in custody of the police and without his being promptly taken before a magistrate,' and (b) was tainted by the unlawful search and seizure.

3. That there was a fatal variance in that Mai Fai Jewels was owned by Jacob and Isabel Rosenberg, husband and wife, and not by Isabel Rosenberg alone.

4. That the evidence was insufficient to show that the entry of the store was 'during the nighttime.'

Other contentions are disposed of in the footnote. ¹

1. About 3:30 P.M. on March 10, 1960, while defendant was under arrest and held at the police station in connection with another burglary, two police officers, Shinn and Suganuma, went to defendant's home, knocked on the door, and when defendant's wife came to the door, identified themselves. Officer Shinn told Mrs. Evans that her husband was 'in custody as a suspect in a burglary case' and that he 'denied the charges.' ² After telling Mrs. Evans this, the officer asked 'if it would be all right for us to check her house for any evidence that we may find.' According to his testimony, 'Mrs. Evans said it was all right and invited us into the house.' In a bedroom, he found a woman's jade and diamond ring and other jewelry in a cuff link case in the left top drawer of a dresser after opening the cuff link case in the presence of Mrs. Evans. He asked Mrs. Evans if she was the owner of this ring. The record then discloses that defense counsel objected to 'any hearsay' whereupon the prosecutor instructed the witness: 'Don't tell us what she said.' The witness then continued: 'And I asked her if she was the owner of the ring. And then I seized--I seized the cuff link case, which had other jewelry inside.'

At 7:45 or 7:50 P.M, Officer Shinn turned the ring over to Suganuma, the other officer who had accompanied him to the house and had been present when it was seized. Officer Suganuma, about 7:40 P.M., had resumed questioning of the defendant. During the interrogation the ring was shown to defendant. The exact point in the interrogation at which it was shown to him does not appear.

During this interrogation defendant confessed to having burglarized Mai Fai Jewels. According to Officer Suganuma's resume of defendant's oral statement, defendant said that after entering the place he 'picked a few pieces of jewelries, and amongst these was a jade ring with a lot of small diamond-like chips around it, mounted on a white gold band * * * and that he had been keeping all of the jewelries he had taken from Mai Fai inside of his cuff link case, which he kept in the left top drawer of his dresser in his bedroom.'

At 8:00 P.M. a police reporter was called in, and defendant's statement was taken in shorthand and subsequently transcribed. Defendant, though agreeing the transcript was accurate, refused to sign it stating as the reason that he had not as yet contacted any attorney. During the course of this further interrogation defendant said that of the pieces taken he only recalled the ring which he then described. Shown the jade and diamond ring seized at his home, he identified it. As to the other items taken that night he said 'They would be with the jade ring where you found that.' This, he again said, was 'In my dresser drawer in a cuff link box.'

At 10:00 P.M. the two investigating officers drove defendant to Mai Fai Jewels for a demonstration as to how he had effected entry, which he gave. He also, when asked, pointed out the place in the store where he had found the jade and diamond ring. At the trial an employee of the store identified the ring as similar to one that she noted as missing when she opened the store for business the morning after the burglary and discovered the burglary.

The testimony as to the finding of the ring, the ring itself, and defendant's confession constitute the entire evidence of defendant's guilt of this particular burglary. Objection was taken to 'any testimony that grows out of the presence of [the police officers] in that house.' It was contended that 'they can't use evidence that they acquired by permission obtained in that way from a third person against the Defendant.' Even if the third person identified herself as defendant's wife 'that wouldn't make legal any evidence that they obtained for use against this Defendant,' it was further contended. Defendant was allowed 'an objection and exception to the entire line.'

At this time we will consider the testimony as to the finding and seizure of the ring, as well as the admissibility in evidence of the ring itself. The constitutional protection against an illegal search and seizure extends to the oral testimony concerning the search and seizure, and not alone to the use in evidence of the object seized. McGinnis v. United States, 227 F.2d 598 (1st Cir.); State v. Hunt, 280 S.W.2d 37 (Mo.); Dalton v. State, 230 Ind. 626, 105 N.E.2d 509, 31 A.L.R.2d 1071.

The State contends that defendant lacks standing to invoke the constitutional protection because he made no claim of ownership. However, articles had been seized in defendant's home for use as evidence against him. He could invoke the protection of the search and seizure clause (Article I, section 5, of the State Constitution) on the ground of possession of the premises where the seizure was made. No assertion of ownership of the property seized was necessary to confer standing. Jones v. United States, 362 U.S. 257,...