State v. Kitashiro

Decision Date02 December 1964
Docket NumberNo. 4380,4380
Citation397 P.2d 558,48 Haw. 204
PartiesSTATE of Hawaii v. George Morito KITASHIRO.
CourtHawaii Supreme Court

Syllabus by the Court

1. A confession otherwise shown to have been voluntary is not rendered inadmissible by the fact that its author was under arrest or in custody at the time, even though the arrest or custody may have been under invalid process or without any process or legal right.

2. A confession obtained during unlawful delay between arrest and production before a magistrate is not ipso facto inadmissible.

3. Under the Fourth Amendment, and under Article I, section 5 of the State Constitution, there must be excluded from evidence not only articles illegally seized but also other evidence which is 'a fruit of the poisonous tree' (so denominated in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307.

4. Where stolen automobile parts were illegally seized by the police at defendant's home, and defendant was told by the police that they had the parts and he 'may as well tell the truth,' in a contest as to the admissibility of defendant's confession some evidence was required to rebut the natural and reasonable inference that the statements made by the police had the intended effect on defendant and did induce his confession as testified by him.

Yukio Naito and Shim & Naito, Honolulu, for defendant-appellant.

Herbert H. Tanigawa, Deputy Pros. Atty., City & County of Honolulu, John H. Peters, Pros. Atty., City & County of Honolulu, Bert S. Tokairin, Deputy Pros. Atty., City & County of Honolulu, for appellee.

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

LEWIS, Justice, with whom WIRTZ, J., joins.

This is an appeal by George Morito Kitashiro, one of two codefendants charged with larceny first degree, i. e., the theft of an automobile belonging to Theodore T. Kawamura, Jr. The other defendant, Kenny Yukuo Otake, changed his plea from 'not guilty' to 'guilty' by permission of the court after the State had put in its case. Kitashiro, hereinafter referred to as 'defendant,' was convicted after trial jury-waived, and upon the entry of judgment appealed therefrom, his ground of appeal being, as set forth in the specification of errors, the admission into evidence of his confession after the court had deferred to the time of trial a ruling on defendant's pre-trial motion to suppress it, which was renewed at the trial and denied at the conclusion of the trial.

Defendant contends that his confession was the product of an unlawful search and seizure, an unlawful arrest, and an unlawful delay between his arrest and production before a magistrate, 1 each of which ipso facto requires the exclusion of the confession from evidence, according to defendant's argument.

The trial court found that an illegal search and seizure had occurred. The legality of the search and seizure is not before us. However, the State contends that the confession was not tainted by the illegal search and seizure. This was but one of the surrounding circumstances having to do with the ultimate question of voluntariness, likewise the lawfulness or unlawfulness of defendant's arrest and detention were only circumstances bearing on the ultimate question of voluntariness, according to the State's contention.

The evidence showed that Kawamura's car was stolen on November 13, 1962, and recovered the next morning at 9:15 A.M. at which time it had been stripped of many parts and was inoperable.

It so happened that Kawamura himself came upon vital information on the morning his car was recovered. While delivering laundry in pursuit of his business, he noticed a group of youths at a residence next door to his customer's, one of whom was carrying a transmission from the trunk of a car. Kawamura went over, talked to the youths, and watched one of them, Otake, cleaning the transmission. While there he recognized, among the things they had, a dilapidated pink chenille bedspread which he customarily carried in the stolen car and used to cover the floor of the car to protect his customers' clothes. He went back to his shop and summoned police aid. When he got back to his shop he learned that his car had been found and towed in.

Returning to the scene with the police he found Otake still cleaning the transmission in the driveway. Upon questioning by the police Otake admitted the transmission was stolen. At this time Kawamura saw there some dresses his wife had been making, which had been in the stolen car.

While the police were at Otake's residence a car drove up containing two juveniles besides the driver. Otake had implicated one 'Smokey,' who turned out to be the driver. One of the juvenile passengers implicated defendant. This informer, whom we have referred to as 'M,' 2 took the police to defendant's residence and to where his car was parked on the University campus. At both places, according to the trial court's holding, there occurred illegal searches and seizures of automobile parts stripped from Kawamura's automobile. Prior to the trial, on defendant's motion, the court suppressed the use as evidence of any of the automobile parts so recovered. See H.R.Cr.P., Rule 41(e).

After recovering the stolen parts from defendant's residence and parked car the police waited for him to return home. They had asked to be informed when he returned. When defendant's parents called and said he was back, the police again went to his residence about 3:00 P.M. Defendant's father was there and asked for some time alone with his son. The police waited in the garage and arrested defendant after the conclusion of his talk with his father. There was no warrant for his arrest and defendant contends it was unlawful. The basis for this contention is the alleged unreliability of the information obtained from 'M,' and the illegality of the searches and seizures made by the police. However, for reasons hereinafter stated, we do not find it necessary to pass on the lawfulness of the arrest.

After defendant's arrest at his home he was taken to the police station in a car containing two police officers, one of whom could not recall whether anything was mentioned to defendant at the time about the automobile parts. The other, Officer Ragsdale, testified as to the conversation on the way to the police station:

'Q. In your conversation with George, did you mention the fact that you had taken certain automobile parts from his home?

'A. I think I did.

'Q. Did you also tell him that since you had the parts, he might as well confess?

'A. Not that way. I told him I had the parts--'You may as well tell the truth as to what happened'--because at the time he was very quiet. I asked him a question and he didn't say anything; so I just said, 'Let's tell the truth. What happened?'

'Q. But you did mention the fact that you had the automobile parts?

'A. I imagine I did.'

Defendant testified:

'Mr. Naito: Now, at the time of your arrest at your residence, did the officer mention anything to you about any automobile parts?

'Witness: Well, I heard someone say that 'we have the parts already.'

'Q. (By Mr. Naito) Did they tell you where they got the parts?

'A. Yes. From the garage closet.

'Q. And this--was this told to you?

'A. Yes, I think so.

'Q. Did the officer say anything about making a confession because he had the parts?

'A. While we were riding down to the police station.

* * *

* * *

'Q. Do you recall how many times he told you that they had the parts so you had to confess?

'A. Yes--no, I don't remember exactly how much, but they told me quite a few times.

'Q. They kept repeating it, is that correct?

(Witness nodding.)'

Defendant arrived at the police station at 3:15 or 3:30 P.M. and was booked, along with others. At this point Officer Kasparovitch of the Detective Bureau, to whom the case had been assigned, saw him for the first time. However, Officer Kasparovitch interrogated Otake before defendant, interrupting this interrogation briefly to arrest defendant for the second time and place him in another interrogation room. At that time, Officer Kasparovitch saw defendant's father as well as defendant. The father was with defendant in the interrogation room for ten or fifteen minutes. The father told defendant that on his lawyer's advice he should not say anything.

Defendant was not questioned until 7:10 in the evening. Meanwhile he remained in the interrogation room. He saw other officers, who questioned him about another matter. He was not questioned about this case, and for nearly three hours waited there for Officer Kasparovitch.

According to Officer Kasparovitch, when he first went into the interrogation room where defendant was waiting the following occurred:

'* * * I asked him if he wanted to eat. He said no, he wanted to get it off his chest and continue. And I said, 'Did your father talk to you about your attorney not wanting you to say anything to me? And he said, 'Yes, but I want to get it off my chest and I want to talk about it.' So I said, 'Okay, let me have your story.''

Defendant then gave Officer Kasparovitch an oral statement, following which a stenographic statement was taken, commencing at 8:00 P.M. At approximately 8:00 P.M. defendant was taken to the cell block, the taking of the stenographic statement having been concluded. The next morning, at 8:00, Officer Kasparovitch took down to the prosecutor's officer a complaint which had been typed out the night before. Defendant was permitted to leave the police station about noon.

Officer Kasparovitch testified that though he knew certain auto parts had been recovered at defendant's home he only questioned defendant about the parts he took and made no statement about the parts found at his residence. Defendant testified, to the contrary, that when Officer Kasparovitch came into the interrogation room: 'He told me, 'Are you ready to confess?' He told me, 'You might as well. We have the parts.'' Defendant further...

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