State v. Lincoln

• Decision Date: 19 March 1982
• Docket Number: No. 7912,7912
• Citation: 643 P.2d 807,3 Haw.App. 107
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. John Kalani LINCOLN, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 807

643 P.2d 807

3 Haw.App. 107

STATE of Hawaii, Plaintiff-Appellee, v. John Kalani LINCOLN, Defendant-Appellant.

No. 7912.

Intermediate Court of Appeals of Hawai'i.

March 19, 1982.

As Amended on Denial of Reconsideration March 30, 1982.

Certiorari Denied April 15, 1982.

Syllabus by the Court

1. When deciding factual issues, it is the trial judge's function to determine the credibility of the witnesses and his or her factual findings will not be disturbed on appeal if they are supported by substantial evidence, are not against the clear weight of the evidence, and if the appellate court has no definite and firm conviction that a mistake has been made.

2. The prosecutor is required to present to the grand jury evidence favorable to the defense only where such evidence is clearly exculpatory.

3. If a defendant is subjected to constitutionally impermissive pretrial confinement conditions, the proper remedy is by way of a civil rights action, not dismissal of the indictment.

4. Absent a showing of prejudice or a substantial threat thereof, dismissal of the indictment is not the appropriate remedy for a constitutionally impermissive interference with the defendant's right to counsel.

5. The standard of review of the trial court's denial of a defendant's motion for change of venue is that the decision of the trial court shall not be disturbed on appeal unless the record indicates an abuse of discretion.

6. No one has a constitutional right to erase unsolicited, spontaneous, and voluntary incriminating statements.

7. Absent abuse of his or her broad discretion, and a showing that the defendant's rights have been substantially prejudiced thereby, the trial judge's rulings as to the scope and content of voir dire will not be disturbed on appeal.

8. The standard of review of the trial court's refusal to give one or more of a defendant's proposed instructions is whether, when they are read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading.

9. A guilty verdict may be based on the uncorroborated testimony of an accomplice.

10. It is not error for the trial court to refuse to give a requested instruction which is unsupported by the evidence.

11. On, and prior to, April 12, 1980, the rule in Hawaii was that evidence of a witness' prior inconsistent statement was hearsay and admissible for the purpose of examining the credibility of the witness but not to prove the truth of the matters asserted.

12. There is no offense of "murder for hire."

13. The trial judge's mislabeling in his instructions to the jury of an offense as a lesser included offense is not per se prejudicial error.

14. When deciding a motion for judgment of acquittal made after the jury returned its verdicts of guilty, the standard of appellate review is whether, upon the evidence, viewed in the light most favorable to the government, and giving full play to the right of the jury to determine credibility, weigh the evidence, and draw therefrom justifiable inferences of fact, a jury might fairly and rationally conclude beyond a reasonable doubt that the accused is guilty.

Eric A. Seitz, Honolulu, for defendant-appellant.

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

Before HAYASHI, C. J., BURNS, J., and KATO, Circuit Judge, in place of PADGETT, Associate Judge, recused.

BURNS, Judge.

Defendant John Kalani Lincoln appeals the jury verdict finding him guilty of two counts of murder and one count of attempted murder. We affirm.

On May 4, 1978, Anthony Kekona, Jr., and Patrick Hawkins went to the Kaleialoha Condominium in Honokowai, Maui, where, with a .22-caliber semi-automatic gun which Hawkins had previously obtained for him, Kekona shot and killed Paul Warford and David Blue and shot and wounded Harriet Savage. Hawkins was apprehended almost immediately and Kekona was arrested some days later on Oahu.

Kekona pled guilty to two counts of murder for which he was sentenced to life imprisonment with possibility of parole and one count of attempted murder for which he was sentenced to 20 years' imprisonment.

In July 1979, on the day after he was sentenced, Kekona informed the police that he had been hired by John K. Lincoln to kill Warford, Blue, and Savage.

On or about August 22, 1979, the police obtained court authorization for a wiretap upon Lincoln's home phone. On August 23, 1979, the police advised the media that Kekona had escaped when in fact he had not. During the time when Kekona was an "escapee," he engaged in phone conversations with Lincoln in an effort to cause Lincoln to incriminate himself and others.

On September 27, 1979, Kekona was indicted for escape in the second degree. All persons having anything to do with the issuance of the indictment knew that in fact Kekona had not escaped and that the indictment was phony.

On October 25, 1979, a grand jury different from the one which "indicted" Kekona indicted Lincoln for two counts "of Murder for Hire in violation of Sections 707-701 and 706-606 of the Hawaii Revised Statutes" and one count "of Attempted Murder in violation of Sections 705-500 and 707-701 of the Hawaii Revised Statutes."

On April 12, 1980, a jury found Lincoln guilty of two counts of murder and one count of attempted murder. He was given the same sentences as Kekona.

I

Lincoln contends that the circuit court should have granted his Rule 12(b), Hawaii Rules of Penal Procedure (HRPP), motion to quash or dismiss his indictment because of the following instances of alleged prosecutorial misconduct:

A. Allegedly misinforming Judge Huddy about the necessity of a wiretap.

B. Use of electronic surveillance on Lincoln's conversations with his wife and his attorney allegedly for longer than necessary.

C. Causing a grand jury to return a phony indictment.

D. Alleged unauthorized and forced entries into Lincoln's house by the police.

E. Allegedly causing Kekona to threaten Lincoln and his wife over the telephone in violation of state and federal laws.

F. Allegedly making threats to and causing others to threaten Lincoln, his wife, and friends.

G. Not disclosing to the grand jury Kekona's prior criminal record.

H. Not telling the grand jury about the electronic surveillance on Lincoln, about Kekona's fake escape, and about the attempts to entrap Lincoln.

I. Allegedly misinforming the grand jury that the telephone company's records verify Kekona's statement about the telephone contacts between Kekona and Lincoln.

J. Alleged punitive segregation and punishing conditions to which Lincoln was being subjected while in pretrial confinement.

K. The police allegedly telling Lincoln and his wife that he was being "misled, misinformed, ill-advised and misrepresented" by his attorney.

SUBSECTIONS A & B

Lincoln complains that the prosecution (1) misinformed the judge about the necessity for a wiretap and (2) intercepted, overheard, and recorded privileged conversations between Lincoln and his wife and Lincoln and his attorney. Lincoln is not complaining of the use of wiretap evidence; rather, he is complaining that the application for the wiretap and the failure to use appropriate intercept minimization procedures constitute prosecutorial misconduct. Although strict construction of wiretap provisions is necessary, United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), we do not find a violation of procedures here and, a fortiori, we find no prosecutorial misconduct.

Our wiretap statute, Hawaii Revised Statutes (HRS) § 803-46(a)(4) (1978), requires a "full and complete statement of facts as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Lincoln argues that the State failed to inform the judge about its suspicions of the identity of persons believed to have hired Lincoln. However, Detective Gary Danley testified that he did inform Judge Huddy of his suspicions.

Lincoln also argues that the State violated HRS § 803-46 (1978) by not following proper minimization procedures. Again, the record does not support Lincoln's allegation. Detective Danley testified that as soon as conversations between Lincoln and his wife or Lincoln and his attorney were identified as such, the intercepts were terminated.

Lincoln agrees and the record shows that the evidence obtained from the electronic surveillance of his phone was not used at his trial. ¹ Since the record shows no violation of HRS § 803-46 (1978) and no prejudice to Lincoln, we find no error.

SUBSECTION C

Lincoln contends that the lower court erred in not dismissing the indictment or awarding him some other benefit because the prosecution caused a grand jury other than the grand jury which indicted him to return a phony indictment against Kekona. We disagree. The case before us involves the indictment and conviction of Lincoln, not the phony indictment of Kekona. Lincoln has not alleged or demonstrated that his rights have been substantially prejudiced by the phony indictment of Kekona.

SUBSECTIONS D, E, & F

Lincoln complains that the prosecutor and the police were involved in illegal break-ins at his house and made threats to Lincoln, his wife, and friends. Although the State denied any responsibility for the threats and alleged break-ins, Lincoln claims the denials to be implausible, "considering the strategy which was described in (Detective) Danley's affidavit that was attached to the wiretap application." ² Acting as the fact-finder, the lower court resolved the credibility issue in favor of the State. The lower court's finding of fact is supported by substantial evidence, is not against the clear weight of the evidence, and we have no definite and firm conviction that a mistake has been made. Consequently, the findings are not clearly erroneous and must be affirmed. 2 Wright, Federal...