State v. Kahinu

• Court: Hawaii Supreme Court
• Writing for the Court: Before RICHARDSON; LEVINSON
• Citation: State v. Kahinu, 53 Haw. 536, 498 P.2d 635 (Haw. 1972)
• Decision Date: 05 June 1972
• Docket Number: No. 5143,5143
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Robert Edson KAHINU aka John T. Cazar, Defendant-Appellant.

Page 635

498 P.2d 635

53 Haw. 536

STATE of Hawaii, Plaintiff-Appellee, v. Robert Edson KAHINU aka John T. Cazar, Defendant-Appellant.

No. 5143.

Supreme Court of Hawai'i.

June 5, 1972.

Syllabus by the Court

1. The circuit court may not compel discovery of material contained in a statement of a government witness to an agent of the government which is not producible under the terms of H.R.Cr.P. Rule 17(h).

2. Once a government witness has testified on direct examination, a defendant has an absolute right to inspect material contained in a statement, as defined in H.R.Cr.P. Rule 17(h) (5), made by the witness to a government agent, which relates to the subject matter of the testimony; refusal by the government to comply would entitle the defendant to have the testimony of the witness stricken.

3. Deliberate misrepresentation by the prosecutor to the court of matters of fact or law, which in fact denies a defendant a fair opportunity to prepare for trial, may constitute such unfair, dishonest, or ignoble conduct as to deny a defendant due process of law.

4. The trial court has discretion to order a psychiatric examination of the complaining witness in a case involving a sex violation if the defendant presents a compelling reason for such an examination; however, the mere allegation that the complaining witness may be mentally ill or fabricating is neither a sufficient nor compelling ground for such an examination.

5. Deliberate and unresponsive injection by a prosecution witness of irrelevant references to a defendant's prior arrests, convictions, or imprisonment may generate prejudicial error, whether it appears that the testimony was intentionally induced by the prosecutor or through the overzealousness of the witness.

6. As a general rule, it is for the tiral court to determine whether a situation involving the use of the 'evidential harpoon' merits a mere cautionary instruction or declaring a mistrial.

John S. Edmunds, Mattoch, Edmunds & Kemper, Honolulu, for defendant-appellant.

Barry Chung, Pros. Atty., Burt L. Snyder, Deputy Pros Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

LEVINSON, Justice.

On July 13, 1970, a jury returned a verdict in the circuit court finding Robert Edson Kahinu, the appellant herein, guilty of burglary in the first degree and assault with intent to rape. ¹ During the course of the trial, the complainant testified that, as she was preparing for retirement sometime after midnight, January 5, 1970, the appellant broke into her apartment, pushed her to the floor, displayed a switchblade knife, forced her to engage in an act of sexual intercourse, and refused to leave until approximately 5:15 A.M., at which time the complainant succeeded in persuading him that she had to leave for work. There was no additional eyewitness testimony and a medical examination of the complainant was never conducted. The appellant raised the defense of general denial. Although he did not take the witness stand, his mother, Mrs. Genevieve Kahinu, testified that her daily journal indicated that the appellant had been at home when the crimes were alleged to have been committed. The appellant's half brother testified that he had observed an individual, in the vicinity of Waikiki, who closely resembled the appellant.

On appeal, the appellant raises a number of troubling issues. He argues: 1) that he was denied due process of law and the effective assistance of counsel, in violation of the sixth and fourteenth amendments of the United States Constitution, ² when the complainant was permitted to testify to certain admissions which theappellant allegedly made to her, after the state had failed to comply with a court order allowing the appellant pretrial discovery of any such recorded statements; 2) that the circuit court's refusal to order the complainant to submit to a pretrial psychiatric examination constituted an abuse of discretion; and 3) that the circuit court erred in denying his motion for a mistrial when a police officer testified on direct examination that at the time of the complainant's photographic identification of the appellant, he was 'in police custody on another case.' We are unable to accept any of the appellant's contentions.

I. THE ADMISSIONS

Prior to trial, defendant filed a motion 'for discovery and inspection,' which included a request that the court issue an order directing the prosecuting attorney to furnish defendant with copies 'of all written or oral, but recorded, statements, admissions or confessions made by the defendant, whether signed or unsigned and whether made prior to or after his arrest . . ..' During a pretrial hearing held in the circuit court on May 20, 1970, the following exchange transpired among the defense counsel (Edmunds), the prosecutor (Ching) and the court:

MR. EDMUNDS: Well, I'd like both, Your Honor-pretrial and discovery. But I'd like the discovery I filed for in his motion, Your Honor-any statements she's made, any pictures taken of (the appellant).

THE COURT: I'll deny that as being against the tenor of Rule 17. But other matters like statements of the accused, of course, you know that you're entitled to that.

MR. CHING: Your Honor, there were some statements made to her-admissions to her by the defendant at the scene.

THE COURT: And you have that?

MR. CHING: Yes.

THE COURT: Well, I think Mr. Edmunds is entitled to that.

Subsequently, there was a shift in prosecutorial personnel, as a result of which Joseph A. Kinoshita replaced Mr. Ching as prosecutor in the instant case. At a later hearing, held on June 25, 1970, defense counsel sought to inform the court that the state had failed to comply with the court's discovery oder:

MR. EDMUNDS: Your Honor, before I argue, I would like to have the record reflect the fact, which I did not set forth in my affidavit, that the last time we were here, Your Honor did direct Mr. Lloyd Ching to produce certain documents-statements made by--

THE COURT: You mean statements made by the accused?

MR. EDMUNDS: Allegedly made by the accused. That has not been done.

THE COURT: If he has statements which appear to be made by the accused, produce it.

MR. EDMUNDS: That hasn't been done.

THE COURT: If there are statements made by the defendant and reduced to the written form, please see that the defendant or his counsel gets a copy of it.

By the date of trial, July 10, 1970, the state still had produced nothing. Defense counsel called this fact to the court's attention, whereupon the prosecutor represented to the court that 'we have no admissions for this case.' Defense counsel then moved that any future testimony relating to such admissions be suppressed or that a continuance be granted so that he might inspect them. The court denied the motions, remarking that 'you can't tie the Court's hands that tight. I will rule on it as it--.'

Later that morning, the prosecutor in fact sought to elicit testimony from the complainant relating to statements purportedly made to her by the appellant. Defense counsel objected, and the court conducted the following bench conference:

MR. EDMUNDS: Your Honor, now we are getting the admissions that we asked for and that your Honor ordered the Prosecution to produce and which they didn't.

MR. KINOSHITA: You meant the admissions to the police officer.

MR. EDMUNDS: No, we asked for all admissions. And it was my understanding that we were going to get them.

MR. KINOSHITA: I thought you said police admissions.

THE COURT: I don't recall exactly what position Ching took when he said he had them or didn't have them.

MR. EDMUNDS: Your Honor denied my motion in all particulars except as to the admissions.

THE COURT: What did Ching say?

MR. EDMUNDS: And Ching said they had them. And your Honor said, 'Give them to Edmunds.' They have never given them.

MR. KINOSHITA: Your Honor, his discovery motion was very inaccurately stated. We thought he was referring to police admissions.

THE COURT: There has been some misunderstanding.

MR. KINOSHITA: But this was exactly what was said to her.

THE COURT: Was that reduced to writing at all? Do you people have it?

MR. KINOSHITA: Just some explanations. But what we understood it to be was police admissions that he wanted.

THE COURT: I will accept that but I think that hereafter when the Court orders all admissions and all confidential copies to be turned over to the Defense for inspection, I want that followed.

MR. EDMUNDS: My objection is that this is too late. The purpose of discovery is to get it before trial so we can prepare. The Court had ordered it, and it is not my responsibility--

MR. KINOSHITA: (Interrupting) Your Honor, this is all irrelevant. He is denying everything.

THE COURT: Who is denying everything?

MR. KINOSHITA: A general denial.

THE COURT: Yes, but that doesn't have anything to do with it. If a pre-trial request is made and the Court indicates that the request should be honored, I want it done. I don't want the trial disrupted like this because of some misunderstanding--

Defense counsel renewed his motion to exclude the statements and moved alternatively for dismissal. The court denied the motions and permitted the prosecutor to continue his line of questioning. The complainant testified that the appellant said upon confronting her, 'If you scream, I will kill you.' She further testified that the appellant admitted burglarizing her apartment on a previous occasion, having first 'jimmied' the door, and that he had burglarized several other apartments and terrorized women.

The appellant urges on appeal that the circuit court properly ordered discovery of the statements, but that, in any event, he had an affirmative right not to be misled by the state as to the existence of such statements.

We note at the outset that the circuit court had no authority to order the state to permit pretrial discovery by the appellant of the admissions in question, since the admissions...