State v. Morishige

• Decision Date: 27 October 1982
• Docket Number: No. 7772,7772
• Citation: 652 P.2d 1119,65 Haw. 354
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Keith T. MORISHIGE, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1119

652 P.2d 1119

65 Haw. 354

STATE of Hawaii, Plaintiff-Appellee, v. Keith T. MORISHIGE, Defendant-Appellant.

No. 7772.

Supreme Court of Hawai'i.

Oct. 27, 1982.

Reconsideration Denied Nov. 22, 1982.

Syllabus by the Court

1. The number of peremptory challenges a defendant is entitled to on voir dire is determined by the maximum penalty directly attaching to the charged offense.

2. A defendant is entitled to twelve peremptory challenges on voir dire only when the charged offense itself carries a penalty of life imprisonment.

3. A violation of Rule 16, HRPP, does not warrant an immediate declaration of a mistrial by the trial court. The rule provides that where a party fails to comply with its terms, the court may order the party to permit the discovery, grant a continuance, or it may enter such other order as it deems just under the circumstances.

4. The trial court's allowance of testimony by a witness whose name did not appear on the list of prospective witnesses submitted by the prosecution before trial was not error where the witness was originally designated as a prospective witness by the defense.

5. A juror's brief and fortuitous observation of the defendant in shackles does not, ipso facto, raise a presumption of prejudice. A demonstration of prejudice is required before a mistrial is declared.

6. Courts following the common law tradition have generally closed the whole matter of the defendant's character, disposition, and reputation on the prosecution's case-in-chief.

7. Courts have not foreclosed evidence of other crimes in all situations because it has probative value beyond the substantiation of character, disposition, and reputation. Where such evidence may be relevant in establishing elements essential to the prosecution and its probative value outweighs the possible prejudice, courts have not been reluctant to admit the evidence.

8. Courts adhering to a more restrictive approach have held that evidence of other crimes is inadmissible except when it helps to establish one of five issues: intent, motive, absence of mistake or accident, identity, or common scheme or plan.

9. Defendant's prior history of criminal and anti-social behavior was admissible where it had a tendency to establish the charged offenses.

10. Evidence of the prosecution tending to rebut a defense will not be excluded because it also tends to show the commission of another crime by the defendant.

11. The responsibility for maintaining the delicate balance between the probative value and the prejudicial effect of evidence of other crimes lies largely within the discretion of the trial court.

12. When a prior conviction is used to enhance the penalty for another offense pursuant to HRS § 706-662, the record must show that the defendant was represented by counsel during the prior offense of which he was convicted or that he intelligently and voluntarily waived his constitutional right to counsel, as well as the fact of the prior conviction.

13. When a prior conviction is used to enhance the penalty for another offense pursuant to HRS § 706-660.1(b), the fact of prior conviction and the fact of legal representation or waiver thereof must be properly presented to the trial court for its consideration.

14. The right to the assistance of counsel in a criminal case guaranteed by the United States and Hawaii Constitutions is satisfied only when such assistance is effective.

Christopher D. Ferrara, Honolulu (Robinson & Ferrara, Honolulu, of counsel; Walter R. Schoettle, with him on the briefs), Walter R. Schoettle, Honolulu, for defendant-appellant.

Lila LeDuc, Deputy Pros. Atty., Honolulu (Arthur E. Ross, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee.

Before RICHARDSON, C.J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices, Assigned Temporarily.

NAKAMURA, Justice.

Defendant-appellant Keith T. Morishige (defendant) was convicted of Assault in the First Degree and Attempted Assault in the First Degree after a jury trial in the Circuit Court of the First Circuit. He was further adjudged a persistent offender, as defined in HRS § 706-662(1), and a multiple offender, as defined in HRS § 706-662(4), ¹ and sentenced to an extended term of imprisonment for twenty years, without possibility of parole for a period of ten years. ² His appeal raises several questions concerning the trial and one related to the imposition of sentence. From a review of the record, we conclude the trial court committed no reversible error in the course of trial. But we are of the opinion that it should not have foreclosed defendant's attempts to demonstrate the ineffectiveness of counsel in prior cases upon which the extended and mandatory term of imprisonment was predicated. We therefore set aside the sentence and remand the case for resentencing.

I.

The defendant, a previously convicted felon, shot Alvin Morishige, his brother, and attempted to shoot Linnell Endo, his brother's girlfriend, with a rifle on November 21, 1978. The first count of the indictment returned by the Grand Jury charged the defendant with a violation of HRS § 134-7(b), Possession of Firearm by a Person Convicted of Certain Offenses. The indictment's second and third counts charged him with Attempted Murder in violation of HRS §§ 705-500 and 707-701. On defendant's motion, the unlawful possession of firearm charge was severed from the attempted murder charges for trial purposes. However, he entered a guilty plea on the firearm offense and proceeded to trial on the offenses of attempts to commit murder. The trial jury found him guilty of lesser included offenses of Assault in the First Degree and Attempted Assault in the First Degree, rather than Attempted Murder.

The State subsequently moved for the imposition of an extended term of imprisonment pursuant to HRS §§ 706-661, 706-662(1) and 706-662(4) and for the imposition of a mandatory minimum term pursuant to HRS § 706-660.1(b)(2). The motions were granted after a consolidated hearing on the motions, and defendant was sentenced to prison for twenty years with no possibility of parole for a period of ten years. The defendant's timely appeal to this court followed.

The questions posed for determination, in our view, are:

1. Whether the trial court erred by not allowing defendant twelve peremptory juror challenges pursuant to Rule 24(b), Hawaii Rules of Penal Procedure (HRPP), and HRS § 635-30, since conviction of the offenses charged would have subjected defendant to life imprisonment under the provisions of HRS §§ 706-661 and 706-662.

2. Whether the trial court erred in permitting testimony that the defendant claims was not disclosed to him in response to a pre-trial request made pursuant to Rule 16, HRPP.

3. Whether the trial court abused its discretion by refusing to grant a motion for mistrial after an impaneled juror observed defendant in shackles outside the courtroom during the trial.

4. Whether the trial court abused its discretion by refusing to grant a motion for mistrial after a court-appointed psychiatrist referred to defendant's record of prior criminal offenses in his testimony.

5. Whether the trial court should have permitted testimony on the claimed ineffectiveness of counsel in prior cases during the hearing on the State's motions seeking the imposition of an extended term of imprisonment and a mandatory minimum term.

II.

A.

Addressing the questions related to the conduct of the trial, we first consider the defendant's claim that he should have been allowed to exercise twelve peremptory juror challenges rather than the three permitted by the trial court. The argument he advances is that Rule 24(b), HRPP ³ and HRS § 635-30 ⁴ entitled him to twelve peremptory challenges because the provisions of HRS §§ 706-661 and 706-662 prescribing extended sentences for persistent and multiple offenders subjected him to possible life imprisonment. Thus the offense charged, he claims, was "punishable by life imprisonment" and one for which twelve challenges are provided by statute and rule. While the proposition is not without appeal, it has been examined and rejected.

In State v. Masaniai, 63 Haw. 354, 628 P.2d 1018 (1981), the defendant-appellant and his co-defendant, who had been charged with three counts of robbery, were each permitted to exercise two peremptory challenges on voir dire pursuant to Rule 24(b), HRPP. On appeal, the defendant-appellant argued in the manner defendant does here that twelve challenges should have been allowed as "the court could have imposed a maximum term of life imprisonment pursuant to the multiple offender provisions of HRS § 706-662(4)." Id. at 357, 628 P.2d at 1021. But as we observed, "[a]t the voir dire stage, it is uncertain whether the extended term provision for a multiple offender is applicable." Id. We therefore concluded the charged offense governed the number of challenges on voir dire.

The conclusion that the number of challenges is fixed by the maximum penalty directly attaching to the charged offense is buttressed by the history of the rule, which was derived from Rule 24 of the Hawaii Rules of Criminal Procedure. The commentary to Rule 24(b), HRPP, as proposed, read as follows:

Section (b) is the same as HRCrP 24(b). It was enacted into statute in 1972 and is found in HRS Section 635-30. Under the Penal Code, only murder carries a life sentence. Class A felonies are punishable by a life sentence only upon a finding that the defendant is a certain kind of offender, i.e., a persistent, multiple, dangerous or professional criminal, and apparently would not be entitled to 12 peremptories under the rule. Cf. Note to Rule 11(c)(2) commenting on the meaning of "maximum penalty" as not including any extended term which is based not on the offense itself but on the background of the defendant.

Hawaii Rules of Penal Procedure (Proposed Draft), June 1975, Commentary to Rule 24. ⁵ Hence, a defendant is entitled to...