State v. Matias, 5798

• Decision Date: 04 June 1976
• Docket Number: No. 5798,5798
• Citation: 550 P.2d 900,57 Haw. 96
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Emanuel Ayala MATIAS, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 900

550 P.2d 900

57 Haw. 96

STATE of Hawaii, Plaintiff-Appellee, v. Emanuel Ayala MATIAS, Defendant-Appellant.

No. 5798.

Supreme Court of Hawai'i.

June 4, 1976.

Syllabus by the Court

1. Where a motion for severance pursuant to H.R.Cr.P. Rule 14 was made and denied in a pre-trial proceeding, failure to renew the motion either before or during trial constituted a waiver when the trial was held after a previous trial which had ended with a hung jury had shown what evidence the state used in that trial and after another count was added to the indictment by the grand jury to which count no request to sever was made.

2. HRS § 641-16 (Supp.1975) prohibits a reversal for alleged error in the admission of evidence unless such alleged error was made the subject of an objection noted at the time it was committed.

3. The making of an objection upon a specific ground is a waiver of all other objections; a specific objection overruled will ordinarily be effective to the extent of the grounds specified and no further.

Christopher D. Ferrara, Deputy Public Defender, Honolulu (Donald K. Tsukiyama, Public Defender, Honolulu, of counsel), for defendant appellant.

Randolph R. Slaton, Deputy Pros. Atty., Honolulu (Maurice Sapienza, Pros. Atty., Honolulu, of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

Pursuant to HRS § 641-11 (Supp.1975) and H.R.Cr.P. Rule 37, defendant appeals from three convictions of rape in the second degree, based upon jury verdicts. Two of the convictions are founded on violations of Sec. 731(1)(a), ¹ Hawaii Penal Code, and one on a violation of Sec. 731(1)(b), ² Hawaii Penal Code. This court has jurisdiction pursuant to HRS § 602-5 (Supp.1975) and HRS § 641-16 (Supp.1975). We affirm the convictions.

A grand jury indictment was filed on March 7, 1974, charging defendant with five counts ³ of rape in the second degree. The alleged rapes occurred on December 26 of 1973 and January 21, 25, 26 and 27 of 1974. The victims of the alleged rapes were five sisters whose ages ranged from 13 to 20 years. Defendant, the commonlaw husband of the victims' mother, pled not guilty to each count. A jury found defendant guilty on three of the counts but hung as to the other two counts.

Defendant does not dispute the fact that there is sufficient evidence in the record to support the verdicts. Rather he specifies two errors by the trial court as grounds for the reversal of his three convictions. The first specification is the denial by the trial court of a pre-trial motion in which defendant claimed that he was entitled to separate trials under either H.R.Cr.P. Rule 8(a) on grounds that the offenses were inappropriate for joinder or under H.R.Cr.P Rule 14 on grounds that, even if appropriate for joinder, a joint trial on these offenses would be so prejudicial as to deprive him of a fair trial. In his brief and at oral argument defendant has conceded that initially joinder was proper under H.R.Cr.P. Rule 8(a).

When joinder of offenses if authorized under H.R.Cr.P. Rule 8(a), subsequent severance is controlled by H.R.Cr.P. Rule 14 which provides for separate trials where 'it appears that a defendant . . . is prejudiced . . . by such joinder for trial . . ..' Upon appropriate motion under Rule 14, the trial court is under a duty to balance possible prejudice to the defendant from joinder with the public interest in efficient use of judicial time through joint trial of defendants and offenses which are connected. See, e. g., Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113, 1117, 1122 (1969); See also Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968), cert. den., 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969); United States v. Haim, 218 F.Supp. 922 (S.D.N.Y.1963); United States v. Teemer, 214 F.Supp. 952 (N.D.W.Va.1963).

Defendant correctly points out that a defendant has no right to a severance and that a motion to sever on grounds of prejudicial joinder is addressed to the sound discretion of the trial court. The Original Committee Note to Rule 14 of the Federal Rules of Criminal Procedure, the source of our rules, states:

'This rule is a restatement of existing law under which severance and other similar relief is entirely in the discretion of the court (citations omitted).'

See also, e. g., Bradley v. United States, supra; Tillman v. United States, 406 F.2d 930 (5th Cir. 1969). The decision of the trial court will not be reversed absent a clear showing of abuse of discretion. See, e. g., Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283 (1968), cert. den., 394 U.S. 909, 89 S.Ct. 1021, 22 L.Ed. 221 (1969); Tillman v. United States, supra. In connection with appellate review of a denial by a trial judge of a defendant's pre-trial motion for severance, we note that '(i)t is very difficult for the trial judge to make a finding on the prejudice issue before trial, as it involves speculation about many things which may or may not occur.' Uniform Rules of Criminal Procedure, Comment to Rule 472(a), 10 U.L.A. at 235.

Under the Federal Rules of Criminal Procedure, from which our rules are derived, it has been held that a defendant's motion under Rule 14 for a severance of counts due to prejudicial joinder must be renewed at the close of the prosecution's evidence or at the conclusion of all the evidence and unless made at that time it is deemed waived. Finnegan v. United States, 204 F.2d 105, 109 (8th Cir. 1953), cert. den., 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347 (1963); see also United States v. West, 517 F.2d 483, 484 (8th Cir. 1975); United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir. 1972); United States v. Porter, 441 F.2d 1204, 1212 (8th Cir. 1971); Semler v. United States, 332 F.2d 6, 7 (9th Cir. 1964), cert. den., 379 U.S. 831, 85 S.Ct. 61, 13 L.Ed.2d 39 (1964). In this regard, Professor Wright advises 'The safe practice for counsel is to make the motion before trial and to renew it whenever he believes the existence of prejudice is shown.' Wright 1 Federal Practice and Procedure § 221 at 434.

In the case at bar, defendant filed his pre-trial motion for severance on May 17, 1974. Subsequent to the denial of that motion, Defendant filed a motion to dismiss Count I and a motion In Limine. ⁴ The court granted the motion to dismiss Count I ⁵ prior to the selection of the jury, on June 3, 1974. Trial on the remaining counts (II-V) ended on June 10, 1974 in a hung jury as to each count.

On June 20, 1974, Count VI, which charged the same offense as the count which had been dismissed, was added to the indictment by the grand jury. To Count VI, defendant pled not guilty. At no time did defendant move to sever Count VI. Nor did defendant renew his previous motion for severance prior to the second trial, which began on August 5, 1974. And although defendant did renew his previous motion In Limine ⁶ just prior to the beginning of the second trial, defendant did not move for severance nor claim prejudice due to joinder at any time during the second trial.

We hold that defendant's failure to renew his motion for severance amounted to a waiver of the motion. After the completion of the first trial, defendant must have been aware of precisely what evidence the State had presented in that trial. Yet, with speculation thus narrowed considerably as to what would be presented in the second trial, defendant did not renew his motion either before or during the second trial. Indeed, at no time did he move to sever Count VI, the count as to which he now claims to have been embarrassed and confounded in his defense. ⁷ Although 'at this distance we cannot probe the mind at (defendant's) counsel to learn of the considerations which prompted his decision not to' renew his motion, United States v. Vida, 370 F.2d 759, 765 (6th Cir. 1966), cert. den., 387 U.S. 910, 87 S.Ct. 1695, 18 L.Ed.2d 630 (1967), we observe that the jury in the first trial refused to convict defendant. Failure to renew the request for severance during the course of trial 'at least suggests that the prejudice now asserted to have resulted from the joinder may not have seemed so substantial to defendant in the context of the trial(s).' Williamson v. United States, 310 F.2d 192, 197 (9th Cir. 1962). Having failed to complain at or before his second trial, we do not believe defendant can now urge that this trial was unfair as a result of the denial of his pre-trial motion.

As to the second specification of error, defendant cites four passages from the trial transcript where he claims 'The trial court erred in admitting evidence of prior bad acts because they were more prejudicial than probative to the guilt of Appellant and therefore deprived him of a fair trial.'

At trial defendant did not object at all to the admission of the testimony given in two of the passages. To the admission of the testimony given in the other two passages, defendant objected only on grounds of hearsay. As these objections were addressed to testimony of statements made by the defendant himself, they were correctly overruled as the testimony admitted was not inadmissible hearsay. Christensen v. State Farm Auto Ins., 52 Haw. 80, 470 P.2d 521 (1970); United States v. Nixon, 418 U.S. 683, 944 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

HRS § 641-16 (Supp.1975), applicable to this case as amended in 1972, prohibits 'reversal for any alleged error in the admission . . . of evidence . . . unless such alleged error was made the subject of an objection noted at the time it was committed or brought to the attention of the court in another appropriate manner.' See State v. Yoshida, 45 Haw. 50, 361 P.2d 1032 (1961), reh. den., 45 Haw. 82, 361 P.2d 1032 (1961). Therefore, the two allegedly inadmissible passages not objected to at all are not grounds for reversal by this court.

In Choy v. Otaguro, 32 Haw. 543 (1932), this court observed that 'there can be no doubt that...