State v. Kreps

• Decision Date: 18 March 1983
• Docket Number: No. 8350,8350
• Citation: 4 Haw.App. 72,661 P.2d 711
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Tamara Sue KREPS, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 711

661 P.2d 711

4 Haw.App. 72

STATE of Hawaii, Plaintiff-Appellee, v. Tamara Sue KREPS, Defendant-Appellant.

No. 8350.

Intermediate Court of Appeals of Hawai'i.

March 18, 1983.

Syllabus by the Court

1. A defendant who presents evidence after a denial of his or her motion for judgment of acquittal at the close of the State's case waives any error in that ruling by the trial court.

2. On appeal, the court will review the entire record in order to determine whether sufficient evidence was introduced to enable a reasonable mind to conclude guilt beyond a reasonable doubt.

3. A defendant's statement may not be received into evidence until the prosecutor has shown the defendant was warned of his Miranda rights.

4. The burden rests upon the government to demonstrate that prior to making a statement, the defendant knowingly and intelligently waived his privilege against self-incrimination.

5. Findings by the trial court, if supported by more than a mere scintilla of evidence, are conclusive on the question of admissibility.

6. Absent insanity or mental depletion, neither the voluntary character nor the admissibility of a confession is affected by mental instability of the person making it.

7. Evidence that the defendant was intoxicated at the time of the inculpatory statement would not per se prevent admissibility unless the defendant did not understand the meaning of the statement or the statement was not the product of rational intellect.

8. On appeal, the court may not disturb the findings of admissibility unless the defendant demonstrates a clear abuse of discretion of the trial court.

Christopher S. Bouslog, Deputy Public Defender, on opening brief and Karl K. Sakamoto, Deputy Public Defender, on reply brief, Honolulu, for defendant-appellant.

Arthur E. Ross, Deputy Pros. Atty., City & County of Honolulu, on brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Defendant Tamara Sue Kreps (Kreps) appeals from her conviction of Negligent Homicide in the First Degree, Hawaii Revised Statutes (HRS) § 707-703(1) (1976). Kreps raises the following issues on appeal: (1) the trial court erred in denying her Motion for Judgment of Acquittal as to the charge of Negligent Homicide in the First Degree; and (2) the trial court erred in denying her motion to suppress her pre-trial inculpatory statements. We find no error and affirm.

On July 20, 1980, between 5:30 a.m. and 6:00 a.m., Kreps was driving an automobile in a Diamond Head (easterly) direction on Kuhio Avenue when she struck and killed a pedestrian, Audrey Norris. Kreps had spent the previous evening at a nightclub with her roommate, but was driving back to her apartment alone. As she entered Kuhio Avenue from Kalakaua Avenue, she saw a pedestrian crossing the street. Kreps "downshifted" from third to second gear but did not brake, thinking that she had passed the pedestrian. The next thing Kreps saw was something crashing into the windshield. She stopped and saw a person lying in the street behind the car. She then reversed the car to where the body was lying.

Police arrested Kreps at the scene of the accident for driving without a license. She was taken to the Honolulu Police Station where, at 7:30 a.m., a breathalyzer test was administered which indicated Kreps' blood alcohol level at 0.12 percent.

Kreps was in the process of being discharged when Officer Larry Walter (Walter) introduced himself, indicated that he wished to talk about the accident and asked her to accompany him to his office. At his office, Walter produced a form, HPD Form 81, bearing the constitutional rights warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Kreps was given a copy to read as Walter read it aloud to her. She indicated on the form that she did not want an attorney, that she understood what she had been told, and that she wished to talk to Walter about the accident. She then proceeded to give Walter her account of the events leading to the incident.

Walter testified that although Kreps appeared emotionally upset throughout the interview and cried from time to time, she did not appear to be intoxicated, appeared "in control," and responded to all of his questions.

On December 23, 1980, the Oahu Grand Jury indicted Kreps for the offenses of Negligent Homicide in the First Degree, HRS § 707-703 (1976), and Driving Without a License, HRS § 286-102 (1976, as amended). On March 2, 1981, Kreps filed a motion to suppress her statements along with a motion to dismiss the grand jury indictment. Both motions were denied in an order filed on April 21, 1981.

A jury trial was commenced on May 19, 1981. At the close of the State's case, Kreps moved for a judgment of acquittal as to both counts. The court orally denied the motion.

After a recess for lunch, the State made a motion to reopen the case. Upon the motion being granted, the State presented evidence that Audrey Norris died as a result of the accident.

At the close of the State's evidence, the court again denied Kreps' motion for judgment of acquittal. Kreps presented evidence and, at the end of trial, made a third motion for judgment of acquittal, which was also denied.

On May 22, 1981, the jury found Kreps guilty as charged on both counts. On May 28, 1981, Kreps filed a motion for judgment of acquittal. After hearing, the court granted the motion as to the license count but denied it as to the negligent homicide count.

On July 27, 1981, the court sentenced Kreps to five years probation. This timely appeal followed.

I.

Kreps contends that the trial court erred in denying her motion for judgment of acquittal after the State had originally rested. She argues that at that time, the State had failed to present a prima facie case because it did not prove that Audrey Norris had died as the result of the accident. Since it was necessary for the court to allow the State to reopen its case in order to introduce evidence of the cause of death, the motion for judgment of acquittal should have been granted. Kreps does not raise as error the trial court's granting of the State's motion to reopen.

We note first that this court has adopted the majority rule that a defendant who presents evidence after a denial of his or her motion for judgment of acquittal at the close of the State's case thereby waives any error in that ruling by the trial court. State v. Emmsley, 3 Haw.App. 459, 652 P.2d 1148, cert. denied, --- Haw. --- (December 10 and 21, 1982); State v. Halemanu, 3 Haw.App. 300, 650 P.2d 587, cert. denied, --- Haw. --- (October 7, 1982). On appeal, the court will review the sufficiency of all the evidence presented. State v. Simpson, 64 Haw. 636, 641 P.2d 320 (1982). When Kreps presented her evidence, she waived any error in the denial of her first motion for judgment of acquittal. ¹ An examination of the entire record clearly indicates sufficient evidence introduced by the State to enable a reasonable mind to fairly conclude guilt beyond a reasonable doubt. State v. Brighter, 62 Haw. 25, 608 P.2d 855 (1980); State v. Broad, 61 Haw. 187, 600 P.2d 1379 (1979); State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970); State v. Manipon, 2 Haw.App. 492, 634 P.2d 598 (1981); State v. Faulkner, 1 Haw.App. 651, 624 P.2d 940 (1981).

II.

Kreps also asserts that the trial court erred in denying her motion to suppress her statements. She contends that there was no knowing and intelligent waiver of her rights and her statement was not voluntary because at the time of the interrogation, she was emotionally upset, confused, frightened and "somewhat inebriated."

A defendant's statement may not be received in evidence until the prosecutor has shown that the defendant was warned of his rights pursuant to Miranda v. Arizona, supra. See also State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971); State v. Kalani, 3 Haw.App. 334, 649 P.2d 1188 (1982). The burden rests on the government to demonstrate that in making any statement, the defendant had knowingly and intelligently waived his privilege against self-incrimination. State v. Green, 51 Haw. 260, 457 P.2d 505 (1969); State v. Kalani, supra. Evidence that a defendant has read and signed the HPD Form 81, "Warning Persons Being Interrogated Of Their Constitutional Rights", could be sufficient to indicate a valid waiver. However, the court must consider whether the words used, considering the age, background, and intelligence of the individual being interrogated, impart a clear, understandable warning of all of his rights. State v. Liuafi, 1 Haw.App. 625, 623 P.2d 1271 (1981). See also State v. Maluia, 56 Haw. 428, 539 P.2d 1200 (1975); State v. Green, supra.

In addition to the necessary waiver the court must also find that such a statement was voluntarily made. State v. Pahio, 58 Haw. 323, 568 P.2d 1200 (1977); State v. Green, supra; State v. Kalani, supra; State v. Luiafi, supra. In doing so, the trial court must weigh the evidence and the credibility of the witnesses. State v. Green, supra. Where the evidence is conflicting, the findings of the trial court, if supported by more than a mere scintilla of evidence, are conclusive on the question of admissibility. State v. Foster, 44 Haw. 403, 354 P.2d 960 (1960). See also State v. Pahio, supra; State v. Kalani, supra. The reviewing court may not disturb the findings of admissibility unless the defendant demonstrates that there has been a clear abuse of discretion by the trial judge in determining admissibility. State v. Green, supra; ² State v. Kalani, supra; State v. Liuafi, supra.

The general rule is that, in the absence of insanity or mental depletion, neither the voluntary character nor the admissibility of a confession is affected by the mental instability of the person making it. State v. Foster, supra.

That condition is one for the consideration of the jury in determining the weight or effect to be given to the confession or...