State v. Molina, 4349

• Decision Date: 06 March 1964
• Docket Number: No. 4349,4349
• Citation: 390 P.2d 132,47 Haw. 391
• Parties: STATE of Hawaii v. Jose R. MOLINA.
• Court: Hawaii Supreme Court

Page 132

390 P.2d 132

47 Haw. 391

STATE of Hawaii v. Jose R. MOLINA.

No. 4349.

Supreme Court of Hawai'i.

March 6, 1964.

Syllabus by the Court

1. In order to convict a defendant of murder 'with extreme atrocity or cruelty,' R.L.H.1955, § 291-3 (Supp.1961), it is not necessary to prove that the weapon used in committing the murder was, or that the manner of committing it was, the most atrocious or the most cruel possible, but the crime must have been committed with atrocity or with cruelty of a higher degree than is usually incident to murder.

2. A photograph showing the head of the deceased with a 12-centimeter sutured incision from a craniectomy, though it may be inherently gruesome or shocking, is admissible if it aids or clarifies the testimony of a medical witness, or shows bruises and lacerations that are not visible in other photographs in evidence, which bruises and lacerations have probative value in respect to the charge that the murder was committed with extreme atrocity or cruelty.

3. The admission in evidence of rough sketches made by a witness while testifying rests within the discretion of the trial judge.

4. In prosecution for murder, a bloodstained sheet and pillow are admissible into evidence, when they are relevant to the material issue as to whether the murder was committed with extreme atrocity or cruelty.

Robert A. Franklin, Honolulu, for appellant.

John H. Peters, Pros. Atty., and Bert S. Tokairin, Deputy Pros. Atty., Honolulu, for respondent.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

MIZUHA, Justice.

Defendant-appellant, Jose R. Molina, was indicted, tried and convicted of committing murder with extreme atrocity and cruelty, which is murder in the first degree.

Defendant's first specification of error presents for review the sufficiency of the evidence to justify a conviction of murder committed with extreme atrocity and cruelty.

On the night of the killing, defendant, 22 years old, drove his car to the residence of Yotaro and Chiyono Fujino with the intent of committing a burglary. Defendant climbed to the second floor and broke into the house. In the upstairs rear bedroom, he discovered the victim, Chiyono Fujino, alseep in bed.

Defendant confessed 'I never like hit her if I didn't have to. So I guess I woke her and tried to tie her up but she didn't stay down. That's when I first hit her on the jaw, I guess, and some place on the face and she still kept coming up so I hit her again and she grabbed hold of me. She wouldn't let go of me so I tried fighting her off. She kept on holding: * * *' According to this confession, she grabbed him and would not let go. Molina then put her in a headlock and took out his brass knuckles. With the brass knuckles on his hand, he hit her on the head four or five times. After all these blows, she was bleeding quite freely from around the nose and head. Molina admitted that because of all the blood, he thought 'she was dead.'

At the trial, the attending doctor, Dr. Lee, testified that when Mrs. Fujino arrived at the Emergency Hospital, she was still bleeding from the nose and the head. He testified that 'there were four lacerations or four cuts on the scalp,' and that 'another striking thing that was present was a large hematoma, or, in other words, a large black and blue spot was present over the left eye,' which resulted in the closing of that eye. After X-rays were taken, Dr. Lee had to suture her scalp to prevent further loss of blood.

Dr. Lee was resummoned to the hospital at approximately 6:00 A.M. the following day. Mrs. Fujino had stopped breathing. He then called Dr. Bennett, a neurosurgeon, into the case. Dr. Bennett testified: 'The patient was unconscious. The right pupil was dilated. There was--there were increased reflexes on the right side, diminished reflexes on the left side, and the patient was in deep coma--completely unconscious. There were injuries about the head and face. There were sutured lacerations on the scalp * * *.' He also testified: 'she was breathing by means of an artificial respirator with a tube into the trachea, the windpipe, which was connected to the respirator machine. The left eye was swollen shut * * * X-rays that had been taken earlier showed a long linear, a straight line fracture in the left frontal temporal and parietal region above the ear. And also it was my impression that she had hemorrhaged within the cranium, the skull, as a result of her injuries.' The length of the linear fracture shown on the X-rays was 'about 6 or 7 inches' long.

As a result of these findings, Dr. Bennett performed a craniectomy on Mrs. Fujino. He testified: 'A 12-centimeter incision in the left temporal region--about where my--between my fingers (indicating)--was carried into the cranium. An opening was made into the cranium. A fracture line was seen in the upper part of the incision, going from front to back. A small amount of blood, 10 to 15 CC's--about a tablespoon or more--was encountered outside the dura, the tough membrane that lines the inner side of the skull and covers the brain. There was considerable increase of intracranial tension or pressure; and on making a small opening into the--through the dura, dark blood of venous type was encountered. About 100 cc's escaped, at which time the brain was about a half inch inside the dura. But shortly the brain began swelling. There was more blood, again of venous type, and the opening into the cranium or skull was enlarged to a size of about 2 by 3 inches. A dural flap was turned, making an opening into the--through the dura, exposing more of the brain but it was impossible to stop the brain from swelling and brain tissue was expelled through the opening in the dura. Softened brain tissue was removed by suction and still it was impossible to close the dura. There was no bleeding at the time of closure. This acute swelling of the brain persisted, and the scalp was closed with two layers of sutures. The patient's condition remained unchanged. She still did not breathe on her own and was continued on artificial respiration.'

Two days later she died. Dr. Majoska, who performed the autopsy, testified: '* * * she had multiple evidences of bruises, scrapes and cuts. These were due to violence. * * * There was a slight amount of bleeding outside of the principal membrane surrounding the brain. There was a moderate amount of free blood between this membrane and the brain. These two findings were due to violence. There was a comminuted fracture of the left side of the skull. * * * There was marked bruising of the brain. There was marked swelling of the brain. And there was moderate laceration or cutting, tearing of the brain. And the basis of these findings, particularly in the skull--the cause of death was certified to as being cerebral contusion and laceration due to trauma; in lay terms, bruising and either cutting or tearing of the brain due to violence.'

All the doctors testified that it would take considerable force to fracture the skull and that the injuries could have been inflicted by some blunt instrument, as, for example, brass knuckles.

R.L.H.1955, § 291-3 (Supp.1961), reads as follows: 'Murder committed with deliberate premeditated malice aforethought, or in the commission of or attempt to commit any crime punishable with imprisonment for life not subject to parole, or committed with extreme atrocity or cruelty, is murder in the first degree.'

'* * * Our statute does not create distinct offenses of murder in the first degree, but one offense, one crime, which may be committed by any of the means described in the statute which, if proven, constitute the same felony. It is the same transaction.' Republic of Hawaii v. Yamane, 12 Haw. 189, 201.

In two early cases, Republic of Hawaii v. Tsunikichi, 11 Haw. 341, and Republic of Hawaii v. Yamane, supra, defendants were tried for murder in the first degree under two counts: premeditated murder and murder committed with extreme atrocity or cruelty. In each case, the trial court denied defendant's request that the prosecution elect the count upon which they would proceed and the facts were presented to the jury on both counts. The trial court's ruling was upheld in both cases. In neither case was the jury called upon to indicate the count upon which the defendant was convicted. However, in the Tsunikichi case, supra, this court commented that the evidence authorized the jury to find the defendant guilty under either count or both.

In the Yamane case, supra, this court approved the following instruction:

'* * * Deliberate, premeditated malice, or else extreme atrocity or cruelty must be proved by the evidence in order to justify a verdict of murder in the first degree. It is not necessary in order to convict the defendants of the murder of Chew Foon Wing with extreme atrocity or with extreme cruelty to prove that the weapons used in committing the murder were, or that the manner of committing it was, the most atrocious or the most cruel possible; but the crime must have been committed with atrocity or with cruelty of a higher degree than is usually incident to murder.' Republic of Hawaii v. Yamane, supra, 12 Haw. at 209.

This instruction was also approved by Justice Le Baron who denied a petition for a writ of habeas corpus presented to him as an individual justice in Application of Palakiko and Majors, 39 Haw. 141, 149. Subsequently, this court adopted what had been said on this subject in the Application of Palakiko and Majors, 39 Haw. 167, which was affirmed sub nom., Palakiko v. Harper, 9 Cir., 209 F.2d 75, ¹ cert. denied, 347 U.S 956, 74 S.Ct. 683, 98 L.Ed. 1101, rehearing denied, 347 U.S. 979, 74 S.Ct. 789, 98 L.Ed. 1118.

In Territory v. Palakiko and Majors, 38 Haw. 490, the defendants were jointly indicted and tried on three counts of murder, one of which was murder committed with extreme atrocity or cruelty. Defendants Majors and Palakiko were convicts on a work...