State v. Kalani

• Decision Date: 01 September 1982
• Docket Number: No. 8196,8196
• Citation: 649 P.2d 1188,3 Haw.App. 334
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Hilarrion KALANI, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 1188

649 P.2d 1188

3 Haw.App. 334

STATE of Hawaii, Plaintiff-Appellee, v. Hilarrion KALANI, Defendant-Appellant.

No. 8196.

Intermediate Court of Appeals of Hawai'i.

Sept. 1, 1982.

Syllabus by the Court

1. Rule 47, Hawaii Rules of Penal Procedure (1977) requires a motion to be made in writing unless made during trial or hearing or unless allowed by the court to be made orally. The motion must state the grounds upon which it is made.

2. Requirement that motions be in writing is intended to provide notice to adverse party of those grounds and guidance of the court.

3. Where defendant's pre-trial motion to suppress his confession was based on alleged failure of the interrogating officer to adequately advise defendant of his constitutional right to remain silent and to counsel, and the allegations that defendant did not knowingly and intelligently waive his constitutional rights and the statements were coerced and involuntary, but did not challenge the validity of defendant's arrest, and where at the pre-trial hearing on the motion only one question was asked of police officers regarding the arrest, the matter of the arrest was not properly presented to the trial court.

4. Matters not properly raised so as to have been considered and ruled upon by the trial court will not be considered and passed upon for the first time on appeal.

5. Where trial court heard evidence concerning defendant's confession and ruled the confession admissible in evidence the reviewing court may not disturb that finding of admissibility unless defendant demonstrates clear abuse of discretion by trial judge in making determination of admissibility.

6. Defendant has not shown clear abuse of discretion by trial court in admitting confession into evidence where the only evidence before the court was that of police officers supporting admissibility.

7. It was not error for trial court to refuse defendant's requested instruction that confession should be corroborated by independent evidence if confession involves vital element of offense charged where the evidence received, independent of the confession, in fact established every element of the offense.

8. Rule 403, Hawaii Rules of Evidence, Chapter 626, Hawaii Revised Statutes (effective January 1, 1981) does not preclude admission of evidence where its relevance is not substantially outweighed by danger of unfair prejudice.

Lawrence D. McCreery, Kapaa, for defendant-appellant.

Lorna A. Nishimitsu, Deputy Pros. Atty., County of Kauai, Lihue, for plaintiff-appellee.

Before BURNS, C. J., HEEN, J., and VITOUSEK, Circuit Judge, assigned by reason of vacancy.

HEEN, Judge.

Defendant appeals his conviction of two counts of Burglary in the First Degree, Hawaii Revised Statutes (HRS) § 708-810 (1976). We affirm.

The appeal raises the following questions:

I. Whether defendant's confession should have been suppressed on the following grounds:

A. Because his arrest six hours previously was not based on probable cause and therefore his detention was illegal.

B. Because the police while informing him of his constitutional right to remain silent, continued to question him after he had responded "no" to the question, "Would you like to tell me what happened or what you know?"

II. Whether the trial court erred in refusing to give defendant's requested instruction to the effect that defendant's confession must be corroborated by independent evidence if the confession supplies a vital element of the offense.

III. Whether the trial court erred in admitting into evidence a "partial" transcript of defendant's tape recorded statement to the police.

FACTS

On May 23, 1980, Mr. Wayne Yamamoto returned to his home in Kapaa, Kauai, to find that it had been forcibly entered and his rifles and a jade ring were missing. He reported the incident to the police and gave them a description of the rifles. On or about June 2, 1980, Yamamoto received a call from a detective with the Kauai Police Department asking him to come to the station to identify some firearms. At the station, he identified three of his firearms. The fourth firearm was a rather unusual Italian-made shotgun which Yamamoto recognized as possibly belonging to his friend, Alvin Tanigawa. Tanigawa had previously told Yamamoto that someone had apparently entered his home and taken one of his guns. Yamamoto later called Tanigawa and told him he had seen a shotgun at the police station that looked like it could be Tanigawa's. Yamamoto testified that he did not give anyone permission to enter his home on May 23, 1980. He also testified that defendant's mother had lived in his home until approximately a month before the burglary.

The next day, Tanigawa went to the police station and identified his shotgun. At trial, Tanigawa could not say when his home had been entered and when the shotgun was taken because there was no sign of a forcible entry. He did testify that the defendant, his girl friend, and a baby stayed with him for a couple of weeks in November and December immediately prior to his discovering the gun was missing, and defendant knew where a key to the door was hidden outside the house. He also testified that the gun might have been missing for several weeks because he normally took his guns out only occasionally to oil them.

Prior to their identification by Yamamoto and Tanigawa, the firearms were delivered to the police by Frank Hayden, a Kauai merchant. Hayden told the police that on or about May 27, 1980, he had bought the firearms from two individuals at his place of business. A few days later, two other men came to Hayden's shop and told him that their firearms had been stolen from their homes. Their description of the firearms matched exactly the guns which Hayden had bought. He gave the police a description of the individuals who had sold him the guns and a description of the automobile used by them. On June 4, 1980, Hayden picked photographs of defendant and Timmy Woolsey from a photographic lineup shown to him by Detective Patrick Ornellas.

On June 6, 1980, after having obtained a search warrant, Ornellas and other officers went to the home of Timmy Woolsey to execute it. Upon arrival, they found the defendant and Woolsey both present. During the course of the search, they located other firearms, ammunition clips, and a telescopic gun sight. The defendant and Woolsey were arrested and removed to the police station. After being advised of his constitutional rights, the defendant made an inculpatory statement as to both burglaries. Defendant's statement was recorded on tape. Defendant was indicted on August 21, 1980, on two counts of Burglary in the First Degree.

Prior to trial, defendant moved to suppress his statement on the following grounds:

1. The statements allegedly made by Defendant were taken by the officer without Defendant being advised of his right to remain silent and his right to counsel, in violation of the Constitutions of the United States and the State of Hawaii; and

2. Defendant's Constitutional rights were not knowingly and intelligently waived, and the statements were coerced and involuntary.

The motion was denied.

At trial, defendant requested the following instruction No. 3:

A confession of a Defendant to police should be corroborated by independent evidence if the confession involves a vital element of the offense charged.

The prosecutor may not rely only on the hearsay testimony of police officers to prove its case beyond a reasonable doubt, and he must have other evidence to fulfill the elements of Burglary in the First Degree in this case.

The request was refused by the court over the defendant's objection.

In the course of the trial, the court admitted into evidence a typewritten transcript of the tape recording of the interrogation of the defendant. The transcript was a verbatim account of the detective's explanation to the defendant of his constitutional rights pursuant to the Miranda decision ¹ and of defendant's confession. This evidence, as well as Detective Ornellas' oral testimony regarding the interrogation and confession, was objected to by defendant as hearsay and as violative of the defendant's constitutional right to remain silent.

I.

A.

Defendant contends that the confession was not admissible in evidence and should have been suppressed because it came as the result of his illegal arrest. He claims that the arrest was not based upon probable cause. The prosecutor argues that the question of the warrantless arrest of the appellant was not properly presented to the trial court and should not be reviewed by this court. We agree.

The case of State v. Cummings, 49 Haw. 522, 423 P.2d 438 (1967) is highly informative on the law relating to appellate treatment of questions not properly raised in a trial court. In Cummings, the defendant at trial objected to the admission of his statement to police on the basis of his irregular arrest and illegal detention. The defendant raised the question initially on appeal but later abandoned it. The Supreme Court posed the question whether it could sua sponte consider the question of the admissibility of the oral statements under the principles established in Escobedo v. Illinois, 378 U.S. 478, 490, 491, 84 S.Ct. 1758, 1764, 1765, 12 L.Ed.2d 977 (1964). The court again stated the law to be that it is established by statute ² and by court rule ³ and decision in criminal as well as civil proceedings that questions not properly raised so as to have been considered and ruled upon by the trial judge will not be considered and passed upon for the first time on appeal. The court found that the objection made in the trial court was improper and was not sufficient to bring to the court's attention the matter of the principles of the Escobedo case and held that the alleged error could well be treated as a matter not raised. The court went on, however, to indicate that it has the power sua sponte to notice plain errors affecting substantial...