State v. Hashimoto

• Decision Date: 28 November 1962
• Docket Number: No. 4180,4180
• Citation: 377 P.2d 728,46 Haw. 183
• Parties: STATE of Hawaii v. David K. HASHIMOTO, George M. Tanisue, Florendo Guillermo, Leo Bajo, Aurelio Barro, Alfred L. Canianes and Henry A. Alejandro.
• Court: Hawaii Supreme Court

Page 728

377 P.2d 728

46 Haw. 183

STATE of Hawaii v. David K. HASHIMOTO, George M. Tanisue, Florendo Guillermo, Leo Bajo, Aurelio Barro, Alfred L. Canianes and Henry A. Alejandro.

No. 4180.

Supreme Court of Hawai'i.

Nov. 28, 1962.

Syllabus by the Court

1. The matter of determining whether a change of venue or a severance in the case of multiple defendants should be allowed rests in the sound discretion of the trial court.

2. The burden of proving such public prejudice as to warrant a change of venue or such mutual antagonism, hostility or incrimination among the codefendants as to warrant allowance of severance is on the asserting party, and unless an abuse of discretion by the trial court is shown, an appellate court will not interfere.

3. The mere fact that upon examination some of the jurors admit having seen defendants in handcuffs does not in itself raise a presumption of prejudice. Without affirmative proof that such observation has adversely affected the jurors, a trial court commits no error in refusing to declare a mistrial.

4. Where newspaper accounts are published and read before selection, an admission by the jurors of having read an article concerning the case in which they are about to sit as jurors is not per se prejudicial, and in the absence of proof that they have been adversely affected thereby, a refusal by the trial court to declare a mistrial does not constitute reversible error.

5. Where the voluntariness of a particular defendant's confession is in question during a voir dire examination, the witness testifying on that issue may be cross-examined only by the particular defendant and not by his codefendants.

6. Where the contents of a confession are not material to the issue of voluntariness, the trial court, during the voir dire examination of a witness, may exercise its discretion in disallowing a request by defendants to examine the confession.

7. When a defendant's own witness in the direct examination unresponsively refers to an independent crime, it is incumbent upon the defendant to move to strike.

8. Where the entire record shows such overwhelming evidence as to indicate that the jury could not reasonably have returned a verdict other than the one it did even if error with respect to incompetent testimony had not been committed, such error with respect thereto could not be deemed to have been prejudicial to warrant a reversal on appellate review.

Robert Kimura, Honolulu, for David K. Hashimoto, Henry A. Alejandro and George M. Tanisue.

Robert H. K. Chang, Honolulu, for Alfred L. Canianes.

David K. Namaka, Honolulu, for Leo Bajo.

Nathaniel Felzer, Honolulu, for Florendo Guillermo and Aurelio Barro.

Daniel G. Ridley, Honolulu, for all defendants.

George I. Hieda, Deputy Pros. Atty., City and County of Honolulu (John H. Peters Pros. Atty.), for plaintiff, defendant in error.

Before TUSKIYAMA, C. J., and CASIDY, WIRTZ, LEWIS and MIZUHA, JJ.

TUSKIYAMA, Chief Justice.

Defendants, Davis K. Hashimoto, George M. Tanisue, Florendo Guillermo, Leo Bajo, Aurelio Barro, Alfred L. Canianes and Henry A. Alejandro, were indicted for and convicted by a jury in the First Circuit Court of the crime of robbery in the second degree.

The evidence in this case shows that, pursuing a preconceived plan to 'roll' someone, defendants one evening proceeded to Ala Moana Park in Honolulu in search of a prey. There, they came upon one Gene Smith and a girl companion. Without provocation, defendants lunched an attack upon Smith, pommeling, kicking, and violently manhandling him, and robbed him of his belongings which, among other, things, included a wrist watch and a wallet containing a few dollars.

Defendants, upon writ of error, have presented to this court for review several issues of law. All defendants, by their respective counsel, have joined in presenting arguments upon and urging the validity of five assignments of error. The remaining assignments are neither specified nor argued orally or in the brief and are therefore deemed abandoned. Akana v. Territory, 22 Haw. 479; In Re Josephine Silva, 32 Haw. 855.

Assignment No. 2 relates to two errors allegedly committed by the trial court at the outset of the trial, namely, (1) denial of defendants' written motion for a change of venue, and (2) denial of defendants' written motion for severance.

After defendants had been arraigned and their respective pleas of not guilty entered, they filed separate written motions for change of venue and severance. All the motions set forth identical reasons in selfsame language, namely: for change of venue, 'that recent radio, television and newspaper publicity regarding the offense alleged as having been committed by these defendants have created an atmosphere of bias and prejudice, against the accused so as to make a fair and impartial trial in this area impossible'; and for severance, 'that facts and circumstances indicate that their defense would be separate and distinct from those of * * * other defendants, so that it would be manifestly unjust to force them to stand trial with the other defendants, contrary to the 14th Amendment of the United States Constitution.'

The foregoing motions were not supported by affidavits. Defendants state in their opening brief that 'The trial judge (Circuit Court) consolidated the foregoing motions for hearing on August 25, 1959 and summarily denied the motions without a full hearing given the Defendants.' An examination of the record shows that on August 26, 1959, the trial court entered separate written orders denying the motions. Other than said orders, nary a thing appears in the record as to what actually occurred at the alleged hearing on August 25, 1959.

The above-quoted statement of defendants in their brief is not self-probative. Without proof in the record, this court is unable to determine to what extent there was or was not a full hearing. Absent such proof, it is incumbent upon the court to indulge the reasonable presumption in favor of the legality and regularity of judicial proceedings. As stated in 20 Am.Jur., Evidence, § 168, p. 172, '* * * it is presumed, in the absence of evidence to the contrary, that a court of general jurisdiction has proceeded within the general scope of its powers and that its orders and judgments have been rendered with authority.' See Estate of Lee Chuck, 33 Haw. 445; 2 Ency.Pl. & Pr. 420; 22A C.J.S. Criminal Law § 589(1), p. 352.

In reviewing a trial court's decision, the appellate court proceeds on the assumption that it is free from error. The burden is upon the party asserting error to make it manifest by the record. 'Where the record is silent, it will be presumed that what ought to have been done was not only done, but was rightly done; * * *.' 3 Am.Jur., Appeal and Error, § 923, p. 489.

In any event, the matter of determining whether local prejudice is so pronounced as to warrant a change of venue to secure a fair and impartial trial for the accused in a criminal proceeding rests in the sound discretion of the trial court. Hawaii v. Hickey, 11 Haw. 314; Territory v. Robello, 20 Haw. 7. One of the factors generally considered material in such determination is the difficulty in securing an impartial jury. 22 C.J.S. Criminal Law § 196, c. 517. In the case at bar, the record is devoid of any indication that such difficulty existed; a fortiori, defendants had not even exhausted their peremptory challenges when they accepted the jury.

Similarly, when several defendants are indicted and tried collectively, as here, a motion for severance is addressed to the sound discretion of the trial court. Rex v. Tin Ah Chin, 3 Haw. 90; Territory v. Johnson, 16 Haw. 743; Territory v. Robello, supra. Defendants claimed in their motions that their defenses were separate and distinct from those of codefendants and therefore could not be justly tried together. It is true that courts have allowed severance upon a showing that the defenses would be antagonistic and that one defendant would adduce evidence exculpatory of himself and condemnatory of his codefendants. In the instant case, however, the record is devoid of any showing of hostility or mutual incrimination among defendants. As we have seen, each motion presented merely a general conclusion unsupported by affidavits.

There appearing in the record nothing to show that the trial court abused its discretion, it will be deemed to have ruled properly in the exercise of its sound discretion. The assignment of error is therefore without merit.

Assignment No. 4 raises the issue as to whether the trial court erred in denying defendants' motions for a mistrial. It is noted that after the jury was sworn, one of defense counsel was permitted without objection to poll the jurors as to whether any of them had read newspaper accounts or heard radio comments concerning the case during the last two days. Upon receiving an affirmative reply from a scattered few, counsel immediately moved for a mistrial without further interrogation on the ground that 'there was prejudice to these defendants because of the special comment that was included in the article, comments which had nothing to do with this particular case * * *.'

The alleged radio comments will not be considered. Nothing appears in the record as to what the comments were. Apropos of the newspaper accounts, two Honolulu Advertiser clippings and one Star-Bulletin clipping were introduced in evidence. They contained brief factual statements reporting the commencement of the trial and the effort being made by the prosecutor's office to locate a girl who was to be a witness in the particular case and also a chief witness in another case in which defendants were charged with rape.

Unquestionably the trial court on its own volition should have pursued the inquiry by examining or directing the examination of the jurors respecting the newspaper accounts. See United States v. Milanovich, 303 F.2d 626 (4th Cir.1962), cert. denied ...