State v. Goers

• Decision Date: 05 October 1979
• Docket Number: No. 6820,6820
• Citation: 61 Haw. 198,600 P.2d 1142
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Merrill Paul GOERS, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1142

600 P.2d 1142

61 Haw. 198

STATE of Hawaii, Plaintiff-Appellee, v. Merrill Paul GOERS, Defendant-Appellant.

No. 6820.

Supreme Court of Hawai'i.

Oct. 5, 1979.

Syllabus by the Court

1. In spite of the general requirement stated in H.R.P.P. Rule 12(b)(3) that motions to suppress be raised prior to trial, a motion for a voluntariness hearing with regard to a confession may be brought at any time prior to the admission of the confession into evidence.

2. Although the judicial determination of the voluntariness of a confession should be made prior to jury consideration, a post-trial finding of voluntariness may render harmless the court's error in failing to make the determination prior to jury consideration.

3. Where appellant fails to carry the burden of producing the proper transcripts to challenge a finding or conclusion that he claims is unsupported by evidence, the finding or conclusion will normally remain undisturbed by the appellate court.

Joanne M. Lanham, Deputy Public Defender, Honolulu (Larry C. Y. Lee and Lloyd Van De Car, Deputy Public Defenders, Honolulu, on the briefs), for defendant-appellant.

Michael Akana, Deputy Pros. Atty., Honolulu (Lydia Garcia, Deputy Pros. Atty., Honolulu, on the brief), City and County of Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and MARUMOTO and KOBAYASHI, Retired Justices, assigned by reason of vacancies.

RICHARDSON, Chief Justice.

Defendant-appellant Merrill Paul Goers was convicted on three separate counts of burglary in the first degree and one count of attempted burglary. He raises several issues on appeal. The only issues which merit our serious consideration are whether the trial court committed reversible error in (1) failing to determine the voluntariness of a confession before it was admitted into evidence, and (2) concluding at a post-conviction voluntariness hearing that the confession was made voluntarily. We find all other defense contentions to be without merit.

FACTS

On March 7, 1976, police were summoned to a Kaneohe residence when a silent burglary alarm was triggered. Appellant Goers was apprehended as he was walking down the driveway and was arrested soon after. At the Kaneohe Police Station, Goers met with Detective Richard Kadota, completed and signed HPD Form 81 informing him of his rights, and allegedly confessed to committing the burglary.

On the day of the trial, prior to opening statements and the reception of evidence, defense counsel moved the court to conduct a voluntariness hearing with respect to any confessions given by Goers to the government. Claiming that Goers had been "high" on paint at the time of the alleged confession and that Kadota had induced Goers to confess through threats and promises, defense counsel sought a judicial determination of the voluntariness of the statement before it was admitted into evidence. The motion was denied by the court. The motion was renewed and once more denied before Detective Kadota testified at trial. In denying the motion the court cited Rule 12(b)(3) of the Hawaii Rules of Penal Procedure, which requires that motions to suppress evidence be raised prior to trial.

Although neither party raised this fact on appeal, a review of the trial court record reveals that a delayed voluntariness hearing was conducted after the conviction, at which time the court found that Goers' statements to Kadota were made voluntarily.

I.

The first issue before this court is whether the court committed error in failing to determine the voluntariness of the confession before the jury was allowed to consider it. It is well established that a criminal conviction may not be based on an involuntary confession. Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). To safeguard against this, a constitutional rule was established in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that a trial judge must make a threshold determination of the voluntariness of a confession before the jury may consider it. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). The Jackson court concluded that the jury is not the appropriate body to make a sole reliable determination of voluntariness. They explained that:

The jury . . . may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession . . . . That a trustworthy confession must also be voluntary if it is to be used at all, generates natural and potent pressure to find it voluntary. Otherwise the guilty defendant goes free. Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the implicit findings (of the jury) become suspect. 378 U.S. at 382, 84 S.Ct. at 1783.

Furthermore, even if the jury finds the confession involuntary, it may still be influenced by the confession in assessing other evidence to reach its verdict. The rule in Jackson protects against this potential infringement of a defendant's constitutional rights. This court has also recognized the need for a reliable judicial determination of voluntariness. Citing Jackson and HRS § 621-26, ¹ we held in State v. Green that "the trial judge has a duty to determine the admissibility of an inculpatory statement out of the presence of the jury and prior to the jury's exposure to such evidence." 51 Haw. 260, 264, 457 P.2d 505, 508 (1971).

In the instant case, Appellant's right to a judicial determination prior to admission of the confession was denied on the authority of Rule 12(b)(3), Hawaii Rules of Penal Procedure, which requires that motions to suppress evidence be raised prior to trial, subject to the proviso in Rule 12(f) which allows the trial court to entertain a tardy motion "for cause shown". Appellant alleges that the trial court inappropriately relied on the "new" Hawaii Rules of Penal Procedure, which became effective on January 1, 1977, after the arraignment but prior to the trial of the instant case. ² Under the former Hawaii Rules of Criminal Procedure a motion to suppress evidence could have been brought at any reasonable time. ³ We need not decide which set of rules should have been applied, because even under the Hawaii Rules of Penal Procedure, as we now interpret them, a defendant should not be denied his constitutional and statutory right to a judicial determination of the voluntariness of his confession merely because his motion for a voluntariness hearing was not raised prior to trial.

Accordingly, we hold that, in spite of the general requirement stated in H.R.P.P. Rule 12(b)(3) that motions to suppress be raised prior to trial, a motion for a voluntariness hearing with regard to a confession may be brought at any time prior to the admission of the confession into evidence. Allowing such motions after trial has commenced will not be a great inconvenience or disruption to the trial...