State v. Irebaria

• Citation: 519 P.2d 1246,55 Haw. 353
• Decision Date: 14 March 1974
• Docket Number: No. 5356,5356
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Edward Y. IREBARIA, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

Page 1246

519 P.2d 1246

55 Haw. 353

STATE of Hawaii, Plaintiff-Appellee, v. Edward Y. IREBARIA, Defendant-Appellant.

No. 5356.

Supreme Court of Hawai'i.

March 14, 1974.

Syllabus by the Court

1. The legitimate tendency to establish a controverted fact is all that is required in order that proffered evidence be relevant.

2. Where a juror submits written questions to the court concerning the facts of the case and the court does not respond, the general prohibition against court-jury communications is not violated.

3. Where a juror submits written questions to the court concerning the facts of the case, and it appears that notice to counsel of such questions may work actual prejudice to the defendant, it is not error for the trial judge to enter such questions into the record without notice to counsel.

David W. Hall, Honolulu (Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, of counsel), for defendant-appellant.

Richard D. Wurdeman, Deputy Pros. Atty., Honolulu, (Barry Chung, Pros. Atty., with him on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., LEVINSON, KOBAYASHI and OGATA, JJ., and Circuit Judge LUM assigned by reason of vacancy.

RICHARDSON, Chief Justice.

At approximately 2:10 a.m. on March 16, 1971, two persons wearing nylon stockings over their faces and carrying handguns entered and robbed Funai's Union Service Station. Testimony is conflicting as to whether one or both robbers were wearing dark blue jackets, however, at least one of the robbers was wearing such a jacket. The robber who was approximately 5 6 and carrying a .22 caliber semi-automatic pistol fired a shot in the course of the robbery. The other robber was wearing a dark blue jacket and carrying a .38 caliber revolver. Taken in the robbery were currency, loose change, and an envelope containing money, checks and charge card slips. The envelope was dated March 15 and signed 'George.' One of the victims was kicked by one of the robbers prior to the robbers' escape. A witness standing about 50 yards away from Funai's saw two males approximately 5 5 to 5 7 wearing dark blue or black knee length coats, run from the area of the service station into a parking lot. Later he saw a 1961 Chevrolet with primer spots all over it, which was 'misfiring' and running 'bad' being driven by the same two persons whom he had seen running into the parking lot. As the car left the parking lot it was 'smoking.'

At approximately 3:00 a.m., police officers in the area observed a green Chevrolet with primer spots and noticeable smoke emissions. Police converged on the vehicle and at approximately 3:10 a.m. arrested the two occupants, the driver and his passenger, the defendant-appellant. The suspects were properly arrested, informed of their rights and searched. The defendant was found to have $52.80 in cash on his person. The driver of the car possessed $30.09. A brown envelope with '76 Union' printed on it was recovered from the driver's side of the car. The envelope contained $70 in cash, a check, and 76 Union charge card invoices. The total cash estimated lost in the robbery was approximately $152.18. Also recovered from the driver's area was a cut nylon stocking. Recovered from the trunk of the vehicle was a white plastic bag containing a blue jacket, a black jacket, a loaded .38 caliber revolver, a .22 caliber semi-automatic pistol, a clip containing nine .22 caliber cartridges and a box of .38 caliber cartridges.

Investigation at the scene of the crime unconvered a fragment of a .22 caliber bullet, a spent .22 caliber case and a hole in the roof of the service station. Photographs were taken of these and of one of the victim's T-shirts with an imprint of a slipper on the shirt.

At trial, no direct evidence was introduced to show that the gun found in the car in which defendant was riding fired the bullet recovered at the scene. Nor was there any attempt by direct evidence to show that the weapons seized could actually 'fire.' Also during the trial the following written questions were forwarded to the court by a juror who later became foreman:

1. How many bullets can the clip hold?

2. Were there any fingerprints found on the pistols?

3. Was the .22 caliber bullet fired from the .22 caliber pistol in evidence?

4. Does the imprint on the T-shirt correspond to any of the alleged (sic) robber's footwear?

5. Were there any fingerprints on the envelope marked 'George'?

The trial court did not inform either counsel of this message nor did he discuss it with the jury or anyone else. The trial court merely noted on the message: 'The Court felt that nothing could be done about these questions and therefore this matter was never discussed before the jury' and entered the slip of paper into the record.

I

Defendant-appellant's first five specifications of error challenge the admissibility of certain evidence. Specifications numbers 1, 2 and 4 may be discussed together since they are susceptible to similar analysis. Defense counsel's argument is that the photographs and fragment of bullet are irrelevant since they do not tie the defendant to the crime. There was 'no showing that this bullet was the one that was fired from the gun . . . and this is insufficient to tie this Defendant-to place him present at that time.'

The question on appeal is whether or not the evidence admitted over objection had any probative value.

The test of admissibility is not one of absolute proof of an ultimate fact in controversy but involves the question of relevancy of proof, relevancy not being dependent upon the conclusiveness of the testimony offered, but upon its legitimate tendency to establish a controverted fact. Bonacon v. Wax, 37 Haw. 57, 61 (1945) (citations omitted).

Appellant's objection as stated is of course true. There is no showing that the bullet was fired from the gun. Nor was the evidence (independently) sufficient to tie the defendant to the robbery. The concept of relevance, however, does not encompass standards of sufficiency. Apellant's contention that evidence which, standing alone, is insufficient to establish a controverted fact, should be inadmissible is totally without basis in the law. It is often said that '(a) brick is not a wall.' McCormick, Evidence § 185, p. 436 (2d ed. 1972). Appellant through a 'sufficiency' standard would take away the building blocks of a prima facie case. The sufficiency standard should apply only when all the bricks of individually insufficient evidence are in place and the wall itself is tested.

The 'legitimate tendency to establish a controverted fact' is all that is required in order that proffered evidence be relevant. Bonacon v. Wax, supra at 61. The evidence challenged in this case may not have been relevant to identify the defendant as the perpetrator of the alleged armed robbery. It was however relevant to establish the nature of the crime itself. It was incumbent upon the prosecution to establish a corpus delicti of robbery in the first degree. Robbery in the first degree was at the time of the offense defined as 'Robbery by one armed with a dangerous weapon with intent, if resisted, to kill, maim, wound, or inflict other severe corporal injury upon the person robber; . . .' HRS § 765-8. ¹ There can be no doubt that the evidence objected to tended to raise the proper inferences to establish that robbery in the first degree had been committed by someone. The evidence concerning .22 caliber bullets, cases and fragments was further relevant to establish the guilt of the accused since one of the other circumstantial bricks of this case was defendant's possession at the time of arrest of a .22 caliber handgun.

Appellant also challenges the admission into evidence of two pistols and ammunition recovered from a car in which defendant was riding, because there was no scientific showing that the two pistols were the ones used in the robbery. We find no legal support for this position. The fact that the two pistols were the same type identified as being used in the robbery is definitely relevant to the identity of the robbers. Likewise, appellant's argument that the evidence, if relevant, is prejudicial, must also fail. ²

II

Appellant argues that the State has not met its burden of proof on the charge of unlawful possession of a firearm by a person previously convicted of certain crimes. At the time of the alleged offense HRS § 134-7(b) read 'No person who has been convicted in this State or elsewhere, of having committed or attempted a crime of violence, . . . shall own, or have in his possession, or under his control any firearm or ammunition therefor.' It is not disputed that a loaded .38 caliber revolver and a .22 caliber automatic together with ammunition for each, were found in the trunk of the car in which defendant was riding. What is disputed is whether or not these items were in fact 'any firearm or amunition therefor.'

The term 'firearm' is defined by HRS § 134-1:

'Firearm' means any weapon, the operating force of which is an explosive. This definition includes pistols, revolvers, rifles, . . ..

The term 'pistol' is further described in the same section:

'Pistol' or 'revolver' means any firearms of any shape whatsoever with barrel less than twelve inches in length and capable of discharging loaded ammunition or any noxious gas.

The State must prove as essential elements of its case that the weapons involved in this case were 'capable of discharging loaded ammunition' or that the ammunition seized was actually loaded. In the case at hand we feel that the State did prove by substantial, albeit circumstantial evidence that defendant possessed a firearm as defined by HRS § 134-1.

Let us proceed through the logical steps necessary to reach the conclusion that the 'pistol' in de...