State v. Pahio

• Decision Date: 09 September 1977
• Docket Number: No. 5945,5945
• Citation: 58 Haw. 323,568 P.2d 1200
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Robert Kainoa PAHIO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1200

568 P.2d 1200

58 Haw. 323

STATE of Hawaii, Plaintiff-Appellee, v. Robert Kainoa PAHIO, Defendant-Appellant.

No. 5945.

Supreme Court of Hawai'i.

Sept. 9, 1977.

Syllabus by the Court

1. "Interrogation" within the meaning of Miranda is questioning initiated by law enforcement officers.

2. Unless and until the warnings and waiver required by Miranda are demonstrated by the prosecution at trial, under Miranda the prosecution may not use evidence obtained from the defendant against him if such evidence resulted from custodial interrogation. However, Miranda fails to restrict the prosecution's use of such evidence if it did not result from custodial interrogation.

3. To determine whether a law enforcement officer's statement was tantamount to a question, this court must determine whether his statement asked for a response.

4. The decision as to whether a statement asks for a response depends on the particular statement and on the learned opinion of the deciding court.

5. The trial judge has a duty to determine the admissibility of an inculpatory statement out of the presence of the jury and prior to the jury's exposure to such evidence. In order to effectuate this duty, he is vested with wide discretion to weigh the evidence in order to ascertain whether the prerequisites to admissibility are present.

6. Where there is more than a scintilla of evidence to sustain the conclusion of the trial judge that the statement was voluntarily made, the admission or confession may be accepted into evidence.

7. The giving of special instructions on identification is within the discretion of the trial judge.

Wayne D. Parsons, Deputy Public Defender, Honolulu, for defendant-appellant.

James B. Takayesu, Deputy Pros. Atty., City & County of Honolulu, Honolulu, for plaintiff-appellee.

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

RICHARDSON, Chief Justice.

On the afternoon of July 6, 1974, the prosecutrix was raped while in a building located at 378 North School Street. Forty-five minutes after the rape and a block away, police arrested defendant-appellant. When he was returned to the scene of the crime, the prosecutrix identified him as her assailant. He was tried and convicted by a jury for the offense of rape in the first degree. He appealed from the judgment entered in conformity with the verdict raising two issues as follows:

(1) Whether the trial judge erred in admitting appellant's inquiry about his slippers, and

(2) Whether the trial judge erred in refusing to give appellant's requested identification instruction.

Appellant does not contend that the evidence was insufficient to support the verdict. Indeed, the State presented substantial direct and circumstantial evidence of his guilt, but we discuss only those facts relevant to the issues he has raised.

THE INQUIRY

When appellant was arrested, he was wearing a white T-shirt with a red line on the back. The substance that made the red line was identical to the substance in the red felt pen used by the rapist to intimidate the prosecutrix.

Brown slippers were found in the room where the rape occurred. They were not there before the prosecutrix was attacked. Appellant was wearing a pair of green slippers when arrested, and the police noticed that they were an inch-and-a-half too small.

Appellant was brought to the police station and given warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971). ¹ He did not want to make a statement, and he did want an attorney.

During the trial Detective Freitas testified that after appellant asserted his right to remain silent and right to the presence of an attorney, the detective said: "Okay, since you're not going to answer my questions, I got your white T-shirt with the red line on and I also have a pair of brown slippers, rubber slippers to be kept as evidence. Let's go back to the cellblock." The detective then testified that he escorted appellant back to the cellblock which was a minute-and-a-half away. The detective was about to testify as to what appellant said as he was closing the cellblock door. Before he could testify further, defense counsel objected on the ground of hearsay. Subsequently the trial judge held a hearing outside of the presence of the jury to determine the admissibility of what appellant said. The prosecutor restated the detective's previous testimony and told the trial judge that the detective would testify that appellant said to the effect, "Where's my brown rubber slipper?" He argued that the question was a voluntary admission. Defense counsel argued that appellant involuntarily asked the question. The trial judge overruled defense counsel's objection. After the jury returned, Detective Freitas testified that as he was closing the cellblock door, appellant said, "Where's my brown slippers?"

Appellant contends that the trial judge erred in admitting his question. In support of his contention, he relies on Miranda. In that case, to protect an individual's Fifth and Fourteenth Amendment privilege not to be compelled to incriminate himself during custodial interrogation, ² the Supreme Court promulgated procedural safeguards as follows:

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

384 U.S. at 479, 86 S.Ct. at 1630 (footnote omitted). Appellant argues that his question was inadmissible because it was a result of the detective's statement which, in turn, was custodial interrogation; and the State failed to demonstrate at trial that he waived his right to remain silent or his right to the presence of an attorney.

The State continues to contend that appellant's question was a voluntary admission. It argues that Miranda is inapplicable because the detective's statement was not interrogation; therefore appellant's question was not obtained as a result of interrogation.

Unless and until the warnings and waiver required by Miranda are demonstrated by the prosecution at trial, under Miranda the prosecution may not use evidence obtained from the defendant against him if such evidence resulted from custodial interrogation. See 384 U.S. at 444, 479, 86 S.Ct. 1602. However, Miranda fails to restrict the prosecution's use of such evidence if it did not result from custodial interrogation.

Since the appellant was in custody when the detective made his statement, our concern is whether appellant's question resulted from questioning initiated by the detective. Questions ask for a response. Statements may or may not ask for a response. To determine whether appellant's question resulted from questioning by the detective, we must first determine whether the detective's statement was tantamount to a question and if so, whether appellant's question resulted from the detective's statement. To determine whether the detective's statement was tantamount to a question, we must determine whether his statement asked for a response.

Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), provides an example of the making of statements tantamount to interrogation. In that case the defendant abducted and murdered a girl. He then surrendered to the Davenport, Iowa, police and was arraigned before a Davenport judge. Since the warrant for his arrest was issued in Des Moines, its police drove to Davenport to return the defendant to Des Moines. Defendant's counsel was denied permission to accompany him on the return trip. During the 160-mile drive from Davenport to Des Moines, one of the detectives delivered what has been referred to as the "Christian burial speech". Knowing that the defendant was deeply religious, the detective said:

I want to give you something to think about while we're traveling down the road . . .. Number one, I want you to observe the weather conditions, it's raining, it's sleeting, it's freezing, driving is very treacherous, visibility is poor, it's going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl's body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way to Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas Eve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.

430 U.S. at 392, 97 S.Ct. at 1236. The Court held that the defendant was denied his Sixth and Fourteenth Amendment right to the assistance of counsel ³ when the detective interrogated him by delivering the speech.

In the case before this court, the detective told the appellant that he was keeping his shirt and a pair of slippers as evidence. This did not ask for a response immediately or ever, as contrasted with the "Christian burial speech" in Brewer which clearly asked the defendant to respond to the suggestion that they stop and locate the...