State v. Hashimoto

• Decision Date: 10 October 1963
• Docket Number: No. 4179,4179
• Parties: , 47 Haw. 344 STATE of Hawaii, Plaintiff, Defendant-in-Error, v. David K. HASHIMOTO, George M. Tanisue, Florendo Guillermo, Leo Bajo, Aurelio Barro, Alfred L. Canianes and Henry A. Alejandro, Defendants, Plaintiffs-in-Error.
• Court: Hawaii Supreme Court

Page 146

389 P.2d 146

47 Haw. 185, 47 Haw. 344

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

Plaintiffs-in-Error.

No. 4179.

Supreme Court of Hawai'i.

Oct. 10, 1963.

Rehearing Denied Dec. 30, 1963.

Syllabus by the Court

1. Where several defendants are jointly indicted for the same crime, it is the general rule that they are to be tried jointly, and a plea for severance is addressed to the sound discretion of the trial court.

2. A trial court's ruling refusing a separate trial does not constitute reversible error unless it patently appears that the court abused its discretion.

3. When an accused challenges the use of manacles in the courtroom, he has the burden of proof that the jurors saw it to his prejudice. A mere statement by counsel to the effect that the jurors must have seen it is not self-proving.

4. Though it may be waived, the right to cross-examine a witness is absolute, subject to the established rules governing the scope of such examination.

5. Where a prosecuting witness is recalled to the witness stand without the right to so recall the witness having been reserved at the time of her first appearance on the stand, and on her second appearance gives material testimony, it is erroneously restrictive for the trial court to deny the right to cross-examine with respect to the testimony previously given on the ground that cross-examination had been waived on her first appearance.

6. An appellate court will not reverse for error in ruling on the scope of cross-examination unless the error was prejudicial.

7. The courts are open to the public and except in the case of persons customarily excluded during a trial, no one may be removed from the courtroom unless he is disorderly or by overt acts attempts to influence the jury or otherwise in any manner interferes with the orderly functioning of the courts.

8. There is no reversible error in refusing to direct verdict where there is substantial and competent evidence to warrant a conviction by the jury.

9. The law is firmly established that an unconscious victim of rape is incapable of consenting to or resisting a carnal attack. It lies within the province of the jury to determine the issue of unconsciousness on the basis of the evidence presented.

Robert Kimura, Honolulu, for Hashimoto, Alejandro and Tanisue, plaintiffs-in-error.

Robert H. K. Chang, Honolulu, for Canianes, plaintiff-in-error.

David K. Namaka, Honolulu, for Bajo, plaintiff-in-error.

Nathaniel Felzer, Honolulu, for Guillermo and Barro, Plaintiffs-in-error.

Daniel G. Ridley, Honolulu, for all plaintiffs-in-error.

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

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

TSUKIYAMA, Chief Justice.

Defendants, David K. Hashimoto, George M. Tanisue, Florendo Guillermo, Leo Bajo, Aurelio Barro, Alfred L. Canianes and Henry A. Alejandro, were indicted, tried and convicted in the First Circuit Court of the crime of rape. They are now before this court on writ of error. ¹

According to the evidence upon which there appears to be no dispute, on July 8, 1959, Janet Schenck and her escort Gene Smith drove to Ala Moana Park at approximately 10:30 p. m. While there, the girl waded in the water along the beach for sometime and about three-quarters of an hour later when she and her escort were about to leave, several young men suddenly appeared and surrounded them. One of the men grabbed Smith and together with others started to beat him. At the same time, someone seized Janet and holding both her arms at her back took her to a car parked about two city blocks away and pushed her into it. There was a man at the wheel who drove off as soon as the rest of the boys entered. Janet identified the man at the wheel as defendant Hashimoto and the man who seized her by the arms and took her to the car as Canianes. She testified that the latter told her not to scream for if she did not do so she would not be hurt; that he similarly warned her again while the car proceeded toward Diamond Head; that three of the defendants were in the front seat and four in the rear in addition to herself, she sitting between the legs of Canianes; that she heard the boys talking about sexual relations and rape; that the boys in the rear except Canianes made passes at her and touched places 'they shouldn't have had their hands'; that Canianes 'grabbed something, a coat, jacket or blanket and put it over my legs and told the guys to leave me alone'; that she did not scream because she was scared.

Janet further testified that after they had passed the Blow Hole, the car turned off the road and came to a stop about a city block away where there were many fir trees; that as she was being pushed out of the car, one of the boys choked her neck with both hands and shook her, applying considerable pressure; that she hit her head on the doorsill; that she then 'passed out'; that she remembered that as she was regaining consciousness, she heard somebody say 'I think she's dead'; that somebody was rubbing beer on her face and that 'someone had been jabbing me in the thigh or pushing me or something and it hurt'; that she also remembered that 'there was someone on top of me, maybe up to my stomach, no one close to my face, but I remember the pressure on my body'; that she noticed that she was lying nude on the ground on what seemed like a blanket.

After Janet dressed, she engaged the boys in conversation because, as she testified, she did not know what would happen next. Testifying further, she recalled that in the course of the conversation, Canianes and Guillermo told her they were sorry; that she heard Alejandro say 'Let's get rid of her, she might turn us in, she might get us in trouble'; that while driving back to town, she again heard Alejandro say 'let's feed the sharks'; that as they approached the place where she was to be let off the car, 'They just kept telling me not to say anything because if I did, that I would never get off the island alive and they would hate to have anything happen to me, because it wasn't just them, there were other guys around here to take care of me, too.'

The prosecuting witness also testified that, except during the small hours of the morning of the 9th when she did have sexual intercourse without her consent or knowledge, she had not had sexual intercourse on July 6th, 7th, 8th or up to the noon hour of the 9th when she was given a pelvic examination by Dr. West; and that although her knowledge was derived from her doctor's statement, some of the boys sitting in the car on the back seat with her on the return trip told her that she had been used.

Dr. West, who conducted the pelvic examination in the forenoon of July 9th, testified that he had found sperm in the vagina of the prosecuting witness and that the 'more than usual' reddening of the vaginal area 'looked like there had been some sort of excessive friction there.' He stated that in his opinion she had had sexual intercourse within twenty-four to thirty-six hours prior to his examination.

Defendants, as appellants here, assign as error numerous orders and rulings of the trial court, but have culled out and specified four assignments of error in support of their contention on appeal that the judgment of the court below should be reversed and defendants ordered discharged.

The first error specified is that which is embodied in assignment of error No. 2, to wit, that 'the court erred in denying the motion for severance of trial for each of the defendants separate and apart from the other.' It is noted that shortly after their arraignment and entry of their respective pleas of not guilty, defendants either jointly or individually filed several written motions including the motion in question for separate trial. All the motions were denied by written orders separately filed. Subsequently, at the inception of the trial, defendants orally renewed inter alia their motion for severance of trial on the ground that 'it is impossible to have a fair and impartial trial for each of them under the circumstances of this case.' In the course of the argument presented out of the presence of the jury, defendants alluded to the difficulty allegedly encountered in the selection of the jury and to the prejudicial effect of being unable to 'cross-examine or dispute what another counsel for another defendant says * * *.' Argument concluded, the trial resumed and the court announced its denial of the motion to which ruling defendants duly excepted.

It is a rule generally recognized and established that where several persons are collectively indicted for a crime, the usual procedure is to try them jointly. The rule is also settled that exceptions may be made by the court in its sound discretion and separate trials ordered when it is shown to the court's satisfaction that a fair and impartial trial cannot be had without a severance. State v. Hashimoto, 46 Haw. 183, 377 P.2d 728 (1962); Territory of Hawaii v. Robello, 20 Haw. 7; Territory of Hawaii v. Johnson, 16 Haw. 743; Rex v. Tin Ah Chin, 3 Haw. 90.

As movants, defendants had the burden of affirmatively showing the existence of factual circumstances which would not only warrant but make severance obviously imperative in the interest of judicial fairness. The trial court's denial of a plea for severance is not subject to reversal on appeal unless the appellate court finds that there was a clear abuse in the exercise of its discretion. United States v. Carter, 311 F.2d 934, 944 (6th Cir. 1963 appeal pending); Hashimoto, supra.

In the light of the argument presented to the trial court by one of counsel speaking, without objection, in behalf of all the defendants, this court has carefully examined the entire record but has...