State v. Masaniai, 6623

• Decision Date: 21 May 1981
• Docket Number: No. 6623,6623
• Citation: 628 P.2d 1018,63 Haw. 354
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Sooga MASANIAI, Jr., Defendant-Appellant, and Gomard Keaupuni Olayan, Defendant.
• Court: Hawaii Supreme Court

Page 1018

628 P.2d 1018

63 Haw. 354

STATE of Hawaii, Plaintiff-Appellee, v. Sooga MASANIAI, Jr., Defendant-Appellant and Gomard Keaupuni Olayan, Defendant.

No. 6623.

Supreme Court of Hawai'i.

May 21, 1981.

Syllabus by the Court

1. In a criminal trial by jury, if two defendants are jointly tried for an offense that is not punishable by life imprisonment, each of the defendants shall be allowed two peremptory challenges.

2. A defendant charged with three Class A felonies is not entitled to twelve peremptory challenges pursuant to Rule 24(b), H.R.P.P., on the presumption that he will be found guilty of the charges and sentenced as a multiple offender pursuant to HRS § 706-662(4).

3. The Sixth Amendment to the United States Constitution does not provide an accused the right to the assistance of counsel at a lineup conducted after an arrest pursuant to a warrant but prior to indictment or formal charge.

4. An accused may be compelled to participate in a lineup for observation of identifiable physical characteristics by a witness.

5. The Fifth and Fourteenth Amendments to the United States Constitution prohibit a confrontation which is unnecessarily suggestive and conducive to irreparable mistaken identification. This determination must be made in light of the "totality of the circumstances" surrounding the confrontation.

6. Where the robbery victims had no difficulty in seeing the assailant at the time of the robbery, described the assailant in detail to the police, and positively identified the defendant at a lineup, the identifications were reliable and did not violate the due process rights of the defendant.

Renee M. L. Yuen, Deputy Public Defender, Honolulu, for defendant-appellant.

Roland L. H. Nip, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and LUM, Circuit Judge, Assigned. ^*

OGATA, Justice.

Defendant-appellant, Sooga Masaniai, Jr., appeals from his conviction on March 31, 1977, of three counts of robbery in the first degree in violation of HRS § 708-840(1)(b)(ii).

On June 13, 1976, at about 9:00 p. m., Ronald Pang, his brother Roland Pang, and their friend Gerrold Kam were walking along Ohenana Loop in Halawa towards the ferris wheel and lights of the 50th State Fair at the Aloha Stadium. A young Samoan male and young Filipino male approached them from behind and asked for a match or a cigarette. They replied that they did not have any, and walked back towards the intersection of Ohenana Loop and Kalaloa Boulevard. The Samoan youth then put his right arm around Gerrold's shoulder and asked him if he had a car. Ronald, who was walking ahead of Roland and Gerrold, told the Samoan to leave Gerrold alone. The Samoan walked up to Ronald, pushed him against a fence, held a gun to his throat, and said something like, "Don't act smart or you're going to get it."

The Filipino youth then told them to hand over their money and said that he had a "blade." Ronald gave his money to the Samoan youth, and Roland and Gerrold gave their money to the Filipino youth. The watches of Roland and Gerrold were also taken. The youths then ordered them not to look back and fled.

On July 20, 1976, Ronald, Roland, and Gerrold viewed a photo array at the police station. Gerrold positively identified the appellant as the Samoan assailant. Ronald also selected the photo of the appellant stating that it looked like the assailant but he was not positive. Roland selected two photos, one of which was that of the appellant, and then narrowed it down to the other photo stating that he was sixty percent sure.

Appellant was arrested pursuant to an arrest warrant on July 21, 1976, and taken to the police station for a lineup. He signed a police form requesting that an attorney be present. Detective Sisson contacted Deputy Public Defender John Chang at 6:30 p. m. Deputy Public Defender Wayne Parsons notified the police that he would be at the police station at 7:00 or 7:15 p. m. The police waited until about 7:25 p. m. before conducting the lineup and Deputy Parsons arrived about five minutes later.

Only Ronald and Roland viewed the lineup because Gerrold had positively identified the appellant at the photo array. The seven lineup participants were asked to approach the witness viewing box and say, "Don't act smart or you're going to get it." Both Ronald and Roland identified the appellant as the Samoan assailant.

Appellant was indicted on September 8, 1976, in the First Circuit Court for three counts of robbery in the first degree in violation of HRS § 708-840(1)(b) (ii).

At the jury trial, appellant was tried together with co-defendant Gomard Keaupuni Olayan. Ronald and Roland testified as to their prior lineup identification, and Ronald, Roland, and Gerrold also identified the appellant in court.

Appellant testified that on the evening of the robbery he was at home singing and playing his guitar with his brother and friends on his front lawn and in the garage. He further testified that he only left briefly to drive his mother to and from church at approximately 6:00 and 10:00 p. m. Appellant's testimony was corroborated by the testimony of his father and a friend.

On March 31, 1977, appellant was convicted of robbery in the first degree on all three counts, and on June 16, 1977, was sentenced to a term of imprisonment for four years as a young adult offender.

Co-defendant Olayan was convicted of robbery in the second degree on three counts and subsequently sentenced to probation. Olayan did not join Masaniai in this appeal.

I.

Appellant contends that he could have been sentenced to a term of life imprisonment on each of the three counts of robbery in the first degree charged in the indictment. Thus, he argues that he was entitled to twelve peremptory challenges on voir dire pursuant to Rule 24(b), Hawaii Rules of Penal Procedure. That rule provides that "(i)f the offense charged is punishable by life imprisonment, each side is entitled to 12 peremptory challenges." (Emphasis added.)

Robbery in the first degree is a Class A felony which ordinarily carries the possibility of a twenty-year term of imprisonment. HRS §§ 708-840(1)(b)(ii) and 706-660. If the offense charged is not punishable by life imprisonment and two defendants are jointly put on trial for that offense, each of the defendants is entitled to two peremptory challenges. Rule 24(b), H.R.P.P. In the instant case, defendant-appellant and co-defendant each were permitted two peremptory challenges on voir dire.

Appellant argues that the court could have imposed a maximum term of life imprisonment pursuant to the multiple offender provision of HRS § 706-662(4). Under that section, the court must find that:

(a) the defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or

(b) the maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony.

The court must then find that the defendant's "criminality was so extensive that a sentence of imprisonment for an extended term is warranted." HRS § 706-662(4). We have held that "warranted" should be interpreted as "necessary for protection of the public." State v. Huelsman, 60 Haw. 71, 91, 588 P.2d 394, 406 (1978), reh. denied, 60 Haw. 308, 588 P.2d 407 (1979). See also State v. Kamae, 56 Haw. 628, 548 P.2d 632 (1976).

At the voir dire stage, it is uncertain whether the extended term provision for a multiple offender is applicable. Appellant was not being sentenced for two or more felonies, nor already under sentence of imprisonment for a felony. The court could not have presumed at that stage that the appellant was guilty of any of the three counts of robbery in the first degree.

Furthermore, the court had the discretion to not impose an extended term sentence even if the appellant met all of the requirements for a multiple offender. Legislative history shows that HRS § 706-662(4) only establishes the minimal requirements for finding that a defendant is a multiple offender and does not make the finding compulsive. Model Penal Code, comments at l-42 (Tent. Draft No. 2, 1954).

In addition, the court could consider alternative sentences. For example, as a young adult offender, the court could have sentenced the appellant, as it actually did in its sentence in this case, to a special indeterminate term of imprisonment in lieu of any other sentence of imprisonment. HRS § 706-667. The court also could have suspended the imposition of a sentence or sentenced the appellant to probation. HRS §§ 706-620 and 706-622. Thus, appellant was not entitled to twelve peremptory challenges pursuant to Rule 24(b), H.R.P.P. because none of the offenses charged was punishable by a term of life imprisonment.

We also note that after exhausting his two peremptory challenges on voir dire, the appellant did not argue that he was entitled to twelve challenges and intended to exercise all of them. There was no intimation that he was dissatisfied with the jury as impaneled. We find that the trial court did not err in allowing the appellant two peremptory challenges.

II.

Second, the appellant alleges that the trial court erred in admitting into evidence eyewitness pre-indictment lineup and in-court identifications. He argues that the lineup identifications should have been suppressed because they were conducted in violation of his right to assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. ¹ In addition, he argues that the courtroom identifications should have been suppressed because they were tainted by the prior unconstitutional identifications.

The United States Supreme Court has established that the Sixth Amendment right to assistance of counsel attaches at critical...