State v. Napeahi
| Decision Date | 12 November 1976 |
| Docket Number | No. 5867,5867 |
| Citation | 556 P.2d 569,57 Haw. 365 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Moroni Manulani NAPEAHI, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1.Where the circumstances accompanying the making of the supposed statement have been called to the attention of the witness upon cross-examination, and he denies having made the statement, or fails to admit it distinctly, or says that he does not remember, the foundation requirements for the impeaching evidence have been satisfied.
2.The foundation requirement is for the purpose of rekindling the witness' memory, and substantial compliance is all that is necessary.
3.The right of an accused to be convicted only upon proof by the prosecution of all of the elements of the crime charged against him beyond a reasonable doubt is a constitutionally protected right.
4.The right of an accused to confront witnesses against him is a constitutionally protected right.
5.In a criminal case, implicit in defendant's right to confront witnesses against him, is his right to cross-examine and to impeach the confronted witness.
6.Constitutional error, not requiring automatic reversal, may be held harmless if the reviewing court is able to declare a belief that it was harmless beyond a reasonable doubt, for if there is a reasonable possibility that the matter complained of might have contributed to the conviction, the error must give rise to a reversal.
7.HRS§ 708-840(2) creates a factual criterion requiring the prosecution to adduce evidence meeting the criterion.It is then clearly a question of fact for the jury to resolve whether the prosecution has proved an essential element of the crime of which defendant is tried.
8.The question on review of instructions is not whether they were technically correct, but whether defendant could have suffered prejudice on their account.
9.An erroneous instruction, clearly prejudicial, cannot be cured by another instruction which correctly states the law, but does not call the attention of the jury to the erroneous instruction.
10.By entering a plea of not guilty, the defendant put in issue all of the material allegations of the indictment and cast upon the state the burden of proving beyond a reasonable doubt each and all of such material allegations before the defendant may be found guilty of the crime charged.
11.The defendant's absolute right to a jury determination upon all essential elements of the offense emanates from his constitutional right to a trial by jury.
Rogers M. Ikenaga, Honolulu (Ikenaga, Pyun & Ito, Honolulu, of counsel), for defendant-appellant.
Lydia Garcia, Deputy Pros.Atty., Honolulu (Maurice Sapienza, Prosecuting Atty., City & County of Honolulu, Honolulu, with her on the brief), for plaintiff-appellee.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
This is an appeal by Moroni Manulani Napeahi(defendant) from a judgment of conviction, after being tried to a jury, of murder, attempted murder, and of robbery in the first degree on two counts.
For reasons stated below, we affirm defendant's convictions of murder and attempted murder, but reverse defendant's convictions of the two counts of robbery in the first degree.
The questions presented by the appeal are: (1) in reference to the conviction for murder, whether the trial court erred in excluding a prior inconsistent statement attributed to a material prosecution witness; (2) in reference to the convictions of robbery in the first degree, whether the trial court erred in instructing the jury that, as a matter of law, the pellet and b-b shot pistols introduced into evidence were 'dangerous instruments' within the meaning of the law of robbery in the first degree.
On September 11, 1974, about 7:30 p. m., the defendant and his companion, Clifford Kam(Kam), 1 entered Floyds of Hawaii, a retail musical instrument and typewriter repair store located in Kailua, Oahu.The defendant proceeded towards the backroom of the store where the owner, Royal H. Lavelee(hereinafter son), and his father, Royal E. Lavelee(hereinafter father), were present.Kam remained in the retail portion of the store with Robert Rackley(Rackley), a part-time sales clerk for Floyds of Hawaii.Upon seeing the defendant push the father down, Rackley proceeded towards the backroom but was ordered to stop by Kam.Because Rackley observed the defendant with a pistol pointed in the direction of the father, he acquiesced to Kam's order to stop.Kam demanded money from Rackley and a struggle ensued between them.Immediately following this struggle, Rackley encountered Paxton Haili(Haili), 2 a friend of the defendant and Kam and who had entered the store from the rear.After a brief struggle with Haili, Rackley fled and called the police from a nearby service station.
When the defendant entered the backroom he was brandishing what appeared to be an 'Army .45 Caliber' type pistol.The defendant told the father and son: Angered by the lack of money in his victims' wallets, the defendant reached for a screwdriver which was on a workbench, located near the son, and started stabbing the son with the screwdriver and at the same time striking him with the pistol.The son received multiple stab wounds and was critically injured.His father also received multiple stab wounds and died as a result of a stab wound to the heart.
Dr. Alvin Majoska, forensic pathologist, testified that the stab wound, which caused the death of the father, was consistent with having been inflicted by the type of screwdriver introduced into evidence.The son identified the screwdriver as the one used by the defendant.A b-b shot pistol resembling an Army .45 caliber and a pellet pistol referred to as a 'cowboy pistol' were also introduced into evidence by the prosecution without objection.3Haili testified that he had given the b-b shot pistol resembling the Army .45 caliber to the defendant immediately prior to the incident at Floyds of Hawaii.
OPINIONAt trial the son, a material prosecution witness, not only positively identified the defendant as his assailant but also testified in detail as to what occurred between his father and the defendant:
Q.(By the Prosecution)Now, what then happened after the defendant started striking you with the gun in one hand and the screwdriver in the other hand; what if anything happened?
A.After he struck me a number of times, I was aware of my father's arms reaching out and grabbing him from the rear and pulling him away from me.
Q.And what if anything was your father saying?
A.He was telling him, He mentioned this about three times in a row.
Q.What if anything happened then?
A.The next view I had of the two while they were facing each other, my father had his arms outstretched as if holding him away, still making those statements that I just mentioned.
Q.Now, what-would you describe the activity between your father and the defendant that occurred that you observed?
A.As I mentioned, I saw my father holding his arms outstretched as if holding him away or breaking up a fight.And I saw the defendant swinging at him with both his arms.
Q.Then what if anything do you recall next happened?
A.I had risen to my-upright on my knees at this point by holding on to the shelf, ShelfNo. 1.I made the remark, 'Please don't kill him.'And I momentarily passed out.I fell back on the floor.
Q.Okay, now, what was the next thing that you recall happening?
A.I woke again, lying face down on my stomach on the floor. . . .I turned my head to the side and I saw my father lying on the floor very still, not moving.
On cross-examination defense counsel attempted to lay the foundation for an alleged prior inconsistent statement of the son relative to what occurred between the defendant and the father:
Q. . . .Now, Mr. Lavelee (the son), as a result of this incident at Floyds of Hawaii, it is correct, is it not, that you were interviewed and gave statements to several police officers, is that correct, in the course of their investigation of the incident?
A.One police officer.
Q.Okay, do you recall that this interview with the police officer happened or occurred at the hospital, Castle Memorial Hospital?
A.Yes.
Q.Do you recall the date this interview happened?
A.No, I would say it was probably about four or five days after the incident.
Q.Do you recall who the officer or detective was?
A.Detective Kruse.
Q. George Kruse?
Q.Yes.
Q.If Detective Kruse in his report of this incident stated that on September 18, 1974, at about 8:30 a. m., while you were at the hospital, Castle, he interviewed you, would this probably be correct?
A.Yes.
Q.Okay, do you recall him asking you questions and you making statements throughout?
A.Yes.
Q.Okay, would it be correct to say that you gave a detailed statement or you talked quite at length in this course?
A.I gave a general statement.
Q.Do you recall stating to Detective Kruse that you had no idea what happened to your father prior to seeing him laying on the floor in the shop next to him, that you could not recall hearing (your)father talking and was struggling with the gunman?Do you recall making that statement?
A.I recall telling him what my father had said to the attacker, and also saying that I did not see what happened to my father.
Q.Do you recall making the statement that I said that you stated-
A.Well, you have said in that statement that my father did not say anything.I don't recall making this statement to the detective, I seem to recall that I did tell him that my father did make some statement to him as he pulled him off of me.
Thereafter, in...
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