State v. Klinge, No. 21237.

CourtSupreme Court of Hawai'i
Citation994 P.2d 509,92 Haw. 577
Docket NumberNo. 21237.
PartiesSTATE of Hawai`i, Plaintiff-Appellee, v. Robin C. KLINGE, Defendant-Appellant.
Decision Date04 February 2000

Rose Anne Fletcher, Deputy Public Defender, on the briefs, for defendant-appellant.

Simone C. Polak, Deputy Prosecuting Attorney, (Bridget Y. Palmer, Law Associate Justice Clerk assisting on the brief) on the briefs, for respondent-appellee.


Opinion of the Court by KLEIN, J.

Defendant-appellant Robin C. Klinge (Klinge) appeals from the second circuit court's judgment, guilty conviction, and sentence filed December 3, 1997. On October 1, 1997, a jury found Klinge guilty of terroristic threatening in the first degree in violation of Hawai`i Revised Statutes (HRS) § 707-716(1)(b) (1993).1 On appeal, Klinge contends that: (1) his constitutional right to a unanimous verdict was violated because the requisite mental states with respect to the results of the prohibited conduct under HRS § 707-7152 gave rise to separate crimes; and (2) the trial court erred in failing to grant his motion for mistrial based on prosecutorial misconduct. We hold that (1) Klinge's constitutional right to a unanimous verdict was not violated inasmuch as HRS §§ 707-715(1) and (2) do not give rise to two separate and distinct crimes; and (2) The trial court did not abuse its discretion in denying Klinge's motion for mistrial based on prosecutorial misconduct. Accordingly, we affirm the circuit court's judgment, guilty conviction and sentence filed on December 3, 1997.


On April 22, 1997, the prosecution filed a complaint against Klinge charging the offense of terroristic threatening in the first degree. Following a jury trial, Klinge was found guilty as charged and sentenced to serve a five-year term of probation, subject to a one-year term of incarceration as a special condition of probation. The following facts were adduced at trial and are relevant to the issues in this appeal.

A. Jury Selection/Voir Dire

During jury selection, the circuit court initially questioned the prospective jurors whether they could wait until deliberation before deciding whether Klinge was guilty beyond a reasonable doubt of the offense charged. Likewise, during voir dire, defense counsel focused on the court's instruction that the jurors should keep an open mind. During voir dire of Juror Nettleship, the prosecutor noted, "Based upon the evidence that comes before you at trial. You can decide whatever you want to, but as far as deliberation, you wait until the end." The prosecutor also stated, "[t]he evidence you hear in the trial you are going to make your own decision individually on that. You can start deciding whenever you want to decide." The circuit court immediately sustained defense counsel's objections to the prosecutor's remarks. Following jury selection, the circuit court again instructed the jurors that they must wait until the commencement of deliberations before determining whether the defendant was guilty or not guilty.

B. The Churches and Schools
1. March 21, 1997—Church of Jesus Christ of Latter Day Saints

William Riedel (Riedel), a licensed general contractor, testified that, on March 21, 1997, he was working with his construction crew at the Church of Jesus Christ of Latter Day Saints (LDS) in Kahului, Maui. While working at the LDS, Riedel noticed a long cylindrical object approximately one foot in length near the LDS satellite dish. Riedel described the object as being two inches in diameter, with wooden spoons taped across it. As Riedel picked up the object, he noticed that the object had what appeared to be green wire wrapped lengthwise around the object and foil tape attached at the ends with coins underneath.

Riedel testified that he had previously received intensive three-day training with dynamite and demolition work. Based on his training, Riedel became suspicious of the object and placed it back down. Thereafter, Riedel called the police because he and his crew agreed that the object "pretty much looked like a bomb." Maui police officers Jeffrey Mahoney (Officer Mahoney) and Guy Souza (Officer Souza) responded to Riedel's call. Upon their arrival, neither Officer Mahoney nor Officer Souza went near the object. Instead, the officers secured a perimeter around the area where the object was located. Riedel and his crew were not allowed to return to the area where the object had been found and were instructed to stay three hundred feet away.

Officer Cedric Zumwalt (Officer Zumwalt) also responded to Riedel's call. Officer Zumwalt testified that his responsibility at the LDS church was to secure the scene, make sure no one was in the building, and seal off the area. Officer Zumwalt also testified that he observed the object from a distance of six to eight feet because the object "was kind of scary looking." Officer Zumwalt decided to call in a bomb squad from Honolulu because the object appeared to be "some type of explosive device, some kind of bomb or something." According to Officer Zumwalt, the object was one foot in length, two inches in diameter, and covered in plastic with a nylon cord wrapped lengthwise around it.

United States Army Staff Sergeant Timothy James Choulat (Sgt. Choulat), of the Sixth Explosive Ordinance Disposal Unit (EODU) at Schofield Barracks, testified that he received a request from the Maui Police Department, on March 21, 1997, to have a team ascertain whether a suspicious item was actually an explosive device. Upon arrival, Sgt. Choulat expanded the evacuation area and ordered the closure of a nearby street. Sgt. Choulat recalled that he first thought the cylindrical object was made of piping material that is commonly used in explosive devices. After taking Polaroid shots and x-rays of the object, Sgt. Choulat and his team determined that the object was not an explosive device.

2. March 29, 1997—Christ the King School

Sister Julia Acain (Sister Julia), who resided at the convent on the campus of Christ the King School in Kahului, recounted that, on March 29, 1997, she observed an object shaped like a cylinder, about ten inches in length, in the yard near the convent. Noting that the object was wrapped in foil with a dollar bill, Sister Julia testified that she did not touch the item because "it looked scary" and that "[i]t was frightening because it looked suspicious." Sister Julia called the police shortly thereafter.

Officer Greg Alejo of the Maui Police Department testified that he and the other responding officers evacuated the convent and closed off adjoining streets. The residents of the convent were not allowed to remain on the school's premises or return to the convent. According to Officer Alejo, he did not touch the item because he "didn't trust it" and "did not want to loose [sic] ... [an] arm or anything like that." Officer Alejo further testified that two other objects were located on the campus in the playground area. Both objects consisted of a sandwich bag containing a tampon applicator with coins wrapped around it and a dollar bill attached to the blue wire that was used to close the sandwich bag.

Again, the Maui Police Department called in a bomb squad from Honolulu. Sergeant Joseph Allen Latham (Sgt. Latham) of the Army EODU testified that, although x-rays were taken of the item, he was unable to determine whether the object was an explosive device. Sgt. Latham opened the package remotely, using a direct blast to one end of the object. Once the object was opened, Sgt. Lathm saw that the object consisted of a rolled up magazine with a couple of keys in it.

3. March 31, 1997—Christ the King Church

Sister Angie Laurenzo (Sister Angie) testified that, on the morning of March 31, 1997, before the start of the school day, she proceeded to the school restrooms to unlock them before the arrival of the students. As Sister Angie entered the girls' restroom, she observed the following items on the floor: a few money bills with stick figures drawn on them, a cigarette lighter with coins taped to it, a tampon, an object that looked like a plastic eggshell, and a flower. Sister Angie testified that she remembered hearing on the radio about bomb threats and that this was frightening to her, especially because of the lighter. Sister Angie did not touch anything and called the police. The police recovered the items from the floor without evacuating the building or calling in a bomb squad.

4. April 4, 1997—Saint Anthony's High School

Sister Sarah Sanders (Sister Sarah), a teacher at Saint Anthony's High School, testified that, on April 4, 1997, although school was not in session on that day, she was at the school feeding fish. After Sister Sarah had fed the fish, Aida Negre, a school custodian, asked Sister Sarah to go to the girls' restroom. According to Sister Sarah, Negre seemed frightened and wanted to show her something that she had found there.

In the restroom, Sister Sarah observed a black object lying on the floor, but did not go near it because "the object appeared to be a small bowl shaped piece with something sticking off the top ... and two wires crossed in front." Sister Sarah also saw that the upper portion of the object was wrapped by United States currency bills. Based on her observations, Sister Sarah believed that the item was an explosive device and thereafter secured the restroom.

Brother Jim Dods (Brother Jim), principal of Saint Anthony's High School, testified that he was asked by Negre and Sister Sarah to inspect the item that had been found in the restroom. Because he was aware of the bomb-like item found at Christ the King School, because the item was bundled with wires, and because of other incidents on campus, Brother Jim did not touch the item. According to Brother Jim, the object appeared to be something dangerous. Brother Jim immediately called the police.

Upon arrival of the fire...

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