State v. Manipon, 7942

• Decision Date: 07 October 1981
• Docket Number: No. 7942,7942
• Citation: 634 P.2d 598,2 Haw.App. 492
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Edwin Kaupe MANIPON, Defendant-Appellant, and Lonnie Wesley Wilson, Defendant.
• Court: Hawaii Court of Appeals

Page 598

634 P.2d 598

2 Haw.App. 492

STATE of Hawaii, Plaintiff-Appellee, v. Edwin Kaupe MANIPON, Defendant-Appellant and Lonnie Wesley Wilson, Defendant.

No. 7942.

Intermediate Court of Appeals of Hawai'i.

Oct. 7, 1981.

Syllabus by the Court

1. It is elementary that a criminal case may be proven beyond a reasonable doubt on the basis of reasonable inferences drawn from circumstantial evidence.

2. In deciding a motion for directed verdict of acquittal, the trial judge must determine 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 justifiable inferences of fact, a reasonable mind could fairly conclude guilt beyond a reasonable doubt.

3. Where there is substantial evidence in the record to support a verdict of guilty, the denial of a motion for acquittal will not be overturned.

4. Evidence to which no objection has been made may properly be considered by the trier of fact, and its admission will not constitute grounds for dismissal.

5. Issues raised for the first time on appeal will not be considered by the reviewing court.

Duffy J. Mendonca, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Keith M. Kiuchi, Deputy Public Defender, Honolulu, for defendant-appellant.

Before HAYASHI, C. J., and PADGETT and BURNS, JJ.

HAYASHI, Chief Judge.

The Defendant-Appellant was found guilty by a jury of two counts of Robbery in the First Degree. ¹ On appeal, he urges this court to reverse his convictions on the grounds (1) that the lower court erred in denying his motion for acquittal as there was insufficient evidence for a jury to fairly determine guilt beyond a reasonable doubt; (2) that there was insufficient evidence to support the jury's verdict; and (3) that it was plain and reversible error for the court to admit police photographs used during a photographic lineup. We disagree and affirm.

Randy Flathers, Ben Jakoski, Kenneth D'Lin, and Thomas Jakoski resided in Apt. 004 at 98-279 Moanalua Loop, Honolulu, Hawaii. On May 24, 1979, Flathers and Tom Jakoski were at home along with a visitor, Jeffery Jones. At around 7:00 p. m., three uninvited persons, one of whom bore a sawed-off shotgun, burst into the apartment and ordered its occupants onto the floor. Jones, who was sitting on a sofa, was ordered to recline thereon, face down. The three uninvited persons demanded money; and the person wielding the shotgun positioned himself on Jakoski's back, yanked his head up by his hair, slapped him in the face, and removed his wallet. The apartment was ransacked and Jakoski heard one of the uninvited persons express a desire to shoot someone, to which one of his companions stated, "No, we don't need that, Lani (sic)." From this, Jakoski presumed "Lani" was the one with the gun.

In the meantime, D'Lin was returning home and had been advised by a neighbor that some unsavory-looking individuals were inside his apartment. He knocked on the door and was told by one of the uninvited persons that he and his companions were "taking care of business." D'Lin went upstairs to a neighbor's apartment to phone the police. The uninvited persons then tied the hands and feet of Jakoski, Flathers, and Jones and fled the scene. The police arrived immediately thereafter and picked up the chase. Lonnie Wilson and Edward Manipon, the appellant in this action, were apprehended by police officers who followed the directions of several citizens who had observed the fleeing men. At the time he was apprehended and placed under arrest, the appellant was in possession of the sawed-off shotgun and Jakoski's wallet.

The following day, Flathers, Jones, Jakoski and D'Lin participated in a photographic lineup conducted by Detective Chang of the Honolulu Police Department (HPD) during which they were asked to identify the persons who had entered their apartment the previous day. They were each shown two sets of seven photographs. Manipon's photograph was in the first group and Wilson's photo was in the second group. D'Lin was only able to identify Wilson's photo. Jakoski could make no identification at all. Flathers selected two photographs of persons other than the defendants, and only Jones was able to identify both Wilson and Manipon as the perpetrators. Jones testified that Wilson had the gun, as did D'Lin.

At trial, the victims gave testimony as indicated. There was also testimony by HPD Officer Lum, who apprehended Wilson, and HPD Officer Lim, who chased Manipon across Kam Highway. Officer Lim testified that he ordered Manipon to halt. Manipon turned and Officer Lim saw the "rifle." Manipon refused Officer Lim's order to drop the "rifle," and Officer Lim shot him in the foot. At trial, Officer Lim identified appellant as the person he had apprehended on that evening with a sawed-off shotgun and Jakoski's wallet in his possession, and Evidence Technician Murayama testified that he recovered two cartridges in the shotgun which were turned over to Criminalist Milton Hong.

Michael Vasquez testified that he was working at Associated Steel Company on the night in question and saw a big man running across the yard with an object that looked like "a piece of iron." A police officer was in pursuit of him and Vasquez, at the officer's request, pointed out the direction in which the appellant had fled.

HPD Officer Rodrigues testified that he was also called to the scene of the robbery; and when Officers Lim and Lum took up the chase of the fleeing parties, he, along with Jones, proceeded in his auto where he issued an all-points bulletin. He and Jones drove onto Kam Highway and were directed by an unidentified person who had seen the appellant run along the bike path pursued by the police and had heard shots fired. He followed the directions and found Officer Lim and the appellant with the shotgun and wallet.

Criminalist Milton Hong testified that he test-fired the shotgun recovered by Officer Lim with one of the cartridges turned over to him by Evidence Technician Murayama, and found it to be in operating condition.

During the testimony of Detective Chang, who conducted the photographic lineup, the State sought to admit into evidence all the police photos used in the lineup in order to establish a basis for the victim's inability to identify the appellant, given the brief opportunities they had to view him. At that time, the following discussion took place:

MR. MIYASAKA: May we approach the bench?

THE COURT: Yes.

(Whereupon, bench conference had, outside the hearing of the jury.)

MR. MIYASAKA: Your Honor, our only objection would be that if the Court notes, on the bottom of the photographs there's a date when the photographs were taken. Now, if the Court admits them as it is, I believe the jury will know when he was arrested. Therefore, we would not object to the photographs being admitted if the bottom portion is cut off, because there's no way the court can prevent the jury from looking under the white paper. (Emphasis added.)

MR. MENDONCA: What if the Court instructs the jury to leave

MR. MIYASAKA: The instruction is not going to be sufficient, because you can look at them accidentally. It creates an impression that he was arrested on a prior occasion and that he has a prior criminal record. I think the proper way to do it, if he's going to submit it to the jury, just have the clerk cut off the bottom part of the photograph. (Emphasis added.)

THE COURT: Well, we'll just glue it down.

MR. MIYASAKA: It's so much easier to just cut it off. It's going to have to go into the record anyway. The Police Department can't take them back.

THE COURT: I don't like to cut them off.

MR. MENDONCA: I think I can offer the same photographs by gluing or stapling them.

MR. MIYASAKA: As long as some safeguard is taken so they cannot see the dates, the information contained on the bottom of the photographs.

THE COURT: Staple or glue, Mr. Miyasaka?

MR. MIYASAKA: Glue.

THE COURT: All right, these exhibits shall be received in evidence with the stipulation that the identification as indicated on each one of these exhibits shall be stricken such that you wanted the identification as shown covered and a white slip shall be pasted on those.

MR. MIYASAKA: Yes, sir.

(Bench conference concluded.)

MR. MENDONCA: At this time State will renew its motion to have these pictures I guess it's already been made a part of the record; excuse me, admitted into evidence.

MR. MIYASAKA: Your Honor, subject to what we discussed, we would be willing to stipulate it coming into evidence under the conditions we discussed. (Emphasis added.)

Appellant called no witnesses and moved for a judgment of acquittal on the three counts. ² The court granted the motion as to Count I and denied it as to Counts II and III. The jury returned a verdict of guilty as to both Counts II and III, and this appeal followed.

Appellant first contends that the lower trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence for a jury to fairly determine his guilt beyond a reasonable doubt.

The standard to be applied by the trial court in ruling upon a motion for judgment of acquittal is whether,...