State v. Mitake

• Decision Date: 29 December 1981
• Docket Number: No. 7358,7358
• Citation: 638 P.2d 324,64 Haw. 217
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Yutaka MITAKE, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 324

638 P.2d 324

64 Haw. 217

STATE of Hawaii, Plaintiff-Appellee, v. Yutaka MITAKE, Defendant-Appellant.

No. 7358.

Supreme Court of Hawai'i Dec. 29, 1981.

Syllabus by the Court

1. A pre-trial confrontation for identification which is unnecessarily suggestive and conducive to irreparable misidentification denies a criminal defendant due process of law.

2. Any identification evidence tainted by the suggestive confrontation procedures and without indicia of reliability is inadmissible as a matter of law. Thus, when determining the admissibility of the identification evidence, the trial court must undertake a two-part inquiry. First, it must decide whether the confrontation procedure had been impermissibly suggestive. If so, the court then determines whether, despite the suggestiveness, the identification is nonetheless reliable.

3. Once it is determined that a pre-trial suppression hearing is warranted to decide the admissibility of identification evidence, due process requires that the defendant be afforded a fair hearing and reliable determination of the issue.

4. The due process clause does not require the examination of identification witnesses at a pre-trial suppression hearing in determining whether an identification confrontation had been impermissibly suggestive, where the trial court had been presented with an adequate reconstruction of the procedures by independent evidence and the record does not indicate that the offered witnesses would have established that the lineup had been impermissibly suggestive.

5. The compulsory process clause affords a defendant in all criminal prosecutions the right to compel the attendance of witnesses and the right to have them heard.

6. Unless the witness denied to defendant could have produced relevant and material testimony benefiting the defense, there is no constitutional violation of the right to compulsory process.

Richard W. Pollack, Deputy Public Defender, Honolulu, for petitioner-appellant.

Before RICHARDSON, C.J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

OGATA, Justice.

On March 29, 1979, Petitioner-Defendant, Yutaka Mitake (hereinafter Petitioner), was convicted of Theft in the First Degree, in violation of HRS § 708-831(1)(b), in the Circuit Court of the First Circuit. On appeal, the Intermediate Court of Appeals affirmed Petitioner's conviction in a decision filed November 12, 1980. 1 Haw.App. 335, 619 P.2d 1078 (1980). On December 24, 1980, this Court granted certiorari to determine whether the trial court's refusal to allow Petitioner to examine the identification witnesses at a pre-trial suppression hearing violated Petitioner's constitutional rights under the due process and compulsory process clauses of the United States Constitution and the Constitution of the State of Hawaii. We find that Petitioner's constitutional rights were not violated, therefore, we affirm.

I.

On the afternoon of June 1, 1978, two oriental males entered the Zales jewelry store in the Pearlridge Shopping Center, smashed a glass display case and fled with a number of diamonds. At various points in their flight, they were seen by five eyewitnesses.

Approximately three weeks later and prior to indictment, on June 23, 1978, Petitioner appeared in a police lineup along with five other oriental males. All the participants were of roughly the same height, had dark hair, had mustaches and wore similar clothes. However, Petitioner's attorney at the lineup, Ronald Yonemoto, who had selected those appearing with Petitioner, lodged various objections concerning the fairness of the identification process. He complained of the varying builds of the participants, the use of a false mustache on one of the participants, and that Petitioner appeared to be the only one with "scraggly" hair and an acne complexion. Also, although the witnesses did not converse with each other during the viewing, he objected to the fact that all five witnesses viewed the lineup together, and that he had not been allowed to talk to the witnesses before or after the lineup. Notwithstanding these objections, all five witnesses identified Petitioner as one of the men involved in the theft.

Subsequently, on October 25, 1978, Petitioner was indicted by the grand jury for Theft in the First Degree.

On December 22, 1978, prior to trial, Petitioner moved to suppress the evidence of the lineup identification, pursuant to Rules 41(e) and 12 of the Hawaii Rules of Penal Procedure (hereinafter HRPP), on the ground that the lineup procedure had been impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.

On the morning of January 29, 1979, immediately preceding Petitioner's jury trial, the hearing on the motion was held. Petitioner examined two witnesses, Yonemoto and Police Officer David Teller, the officer in charge of the lineup. Thereafter, Petitioner sought to call the five identification witnesses. In his offer of proof, Petitioner asserted that there was a possibility that the lineup had been suggestive. He cited Yonemoto's allegations that only two of the lineup participants had long hair, that the participants had differing body builds, and the descriptions given to the police by the identification witnesses were in conflict and also did not match the participants in the lineup. Petitioner argued, therefore, that he should be allowed to examine the identification witnesses because they are "(t)he only people who can speak in terms of substantial misidentification or whether the lineup was suggestive ...." The trial court, however, denied Petitioner's request. After viewing a photograph of the lineup, ¹ and considering the testimony and arguments presented, the trial court denied Petitioner's motion to suppress, finding that the lineup procedure had not been impermissibly suggestive.

At trial, all five identification witnesses made in-court identifications of Petitioner. On direct examination, the prosecution did not elicit any testimony concerning the pre-trial lineup identification. On cross-examination, however, Petitioner did question the five witnesses about the lineup. Petitioner's questioning on this point was brief and did not delve into the issue of the relative suggestiveness of the pre-trial lineup. No questions were asked concerning the builds, acne, or scraggly hair of the lineup participants. Subsequently, Petitioner was found guilty as charged.

The Intermediate Court of Appeals, in addressing Petitioner's constitutional claims, held that there is no per se right under the Fifth and Sixth Amendments to examine identification witnesses at a pre-trial suppression hearing. Any such right, the court stated, would arise depending on the facts of the case. The court concluded, however, that under the facts presented in this case, there had been an insufficient showing to establish a constitutional right to examine the identification witnesses. Hence, the trial court did not err in prohibiting the examination.

II.

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court recognized the inherent dangers and unfairness in confrontations for identification. As the Court remarked (T)he confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.

Id. at 228, 87 S.Ct. at 1932.

A major factor contributing to the incidence of mistaken identification "has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." Id. at 228, 87 S.Ct. at 1932.

Accordingly, we have held that a confrontation which is "unnecessarily suggestive and conducive to irreparable mistaken identification" denies a criminal defendant due process of law. State v. Masaniai, 63 Haw. 354, 362, 628 P.2d 1018, 1024 (1981), citing Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). Any identification evidence, therefore, whether of the out-of-court confrontation, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Masaniai, supra; State v. Naeole, 62 Haw. 563, 617 P.2d 820 (1980), or the in-court identification, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Malani, 59 Haw. 167, 578 P.2d 236 (1978); State v. Padilla, 57 Haw. 150, 552 P.2d 357 (1976), tainted by the suggestive confrontation procedures and without indicia of reliability is inadmissible as a matter of law. Alternatively, identification evidence will be admissible where "under the 'totality of circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382.

Hence, when determining the validity of a timely pre-trial motion to suppress identification evidence ² because of an alleged suggestive confrontation, the trial court must undertake a two-part inquiry. See State v. Malani, supra. First, the court must decide whether the procedure utilized was impermissibly suggestive. If so, the court then determines whether, despite the suggestiveness, the identification is nonetheless reliable. ³ If, however, impermissible suggestiveness is not established, "the question of the eyewitness identification's reliability need not be answered." Id. 59 Haw. at 170, 578 P.2d 236.

In the instant case, Petitioner does not base his due process claim on the admission at trial of tainted identification evidence. Rather, he argues that by precluding the testimony of the identification witnesses at the pre-trial...