State v. Pinero

• Decision Date: 18 October 1993
• Docket Number: No. 15881,15881
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Clyde PINERO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1369

859 P.2d 1369

75 Haw. 282

STATE of Hawaii, Plaintiff-Appellee, v. Clyde PINERO, Defendant-Appellant.

No. 15881.

Supreme Court of Hawai'i.

Oct. 18, 1993.

Syllabus by the Court

A trial court's determination as to the admissibility of evidence based on relevancy under Hawaii Rules of Evidence Rules 401 and 402 is reviewed under the right/wrong standard.

The existence of a search warrant is not relevant to a finding of whether the murder of a police officer arose out of "the performance of official duties," for the purposes of the first degree murder statute, HRS § 707-701. The question is not whether the police were performing their duties properly, but whether the defendant believed the officer's actions were prompted by official duty.

Where decision below was correct it will be upheld by an appellate court although trial court used incorrect basis for its decision.

Ordinarily, instructions to which no objection was made at trial may not be raised as error on appeal.

Even where an instruction was objected to at trial, if the grounds of error urged on appeal were not made in support of the objection below, an appellate court will treat the instruction as free from objection.

An appellate court may presume an absence of error if no objection to the alleged error was made at trial.

If an alleged error affected substantial rights of the defendant, however, we may notice the error as "plain error" and remand for corrective action.

In determining the sufficiency of a particular instruction, or part of a charge, the portion alleged to be in error is not to be An erroneous instruction, to which a proper objection was made at trial, is presumptively harmful and is a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.

considered apart from its context, or the rest of the charge. Both in civil and in criminal cases the instructions of the court must be read together as one connected whole to ascertain whether they correctly declare the law. The omissions or inaccuracies of one instruction may be cured by the contents of the other instructions, or some of them, and if, when the instructions of the court are considered as a whole, they correctly state the law and are not inconsistent or misleading, the fact that a particular instruction or isolated paragraph may be objectionable, as inaccurate or misleading, will not constitute ground for reversal.

The murder of a police officer "arises out of the performance of official duties" when the perpetrator engages in death causing conduct because of the officer's past, present, or expected performance of official duties.

The state of mind required to establish the attendant circumstance of "arising out of the performance of official duties" is intentional or knowing. Thus, the prosecution must prove beyond a reasonable doubt that the defendant was aware of, believed, or hoped that he or she caused the officer's death because of the officer's performance of official duties.

A defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the jury, no matter how weak, inconclusive, or unsatisfactory the evidence may be.

Hawaii adheres to the "any evidence" standard, under which a proper request for instructions will invoke the duty of the trial court to instruct the jury on every defense or theory of defense having any support in the evidence.

A request for instructions on an applicable defense may be made by a defendant or by the prosecution.

Self-defense instructions requested by the prosecution should be given unless the defendant objects on the basis that the record does not reflect any evidence on the issue and the trial court agrees with the defendant.

Edward K. Harada, Deputy Public Defender, Honolulu, for defendant-appellant.

Caroline M. Mee, Deputy Prosecuting Atty., Honolulu, for plaintiff-appellee.

Before LUM, C.J., ^* MOON, KLEIN, LEVINSON, JJ., and Intermediate Court of Appeals Associate Judge HEEN, Assigned By Reason of Vacancy.

KLEIN, Justice.

Defendant-appellant Clyde Pinero appeals a first circuit court judgment convicting him of Murder in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-701(1)(b) (Supp.1992) ¹ for the murder of Honolulu police officer David Ronk. Pinero was initially charged, tried, and convicted on two counts: 1) Possession of a Firearm by a Person Convicted of Certain Crimes in violation of HRS § 134-7 (1985); and 2) Murder in the First Degree. The convictions arising out of the first trial were vacated and the case remanded for a new trial in State v. Pinero, 70 Haw. 509, 778 P.2d 704 (1989). Upon remand, Pinero's second trial resulted in a hung jury as to Murder in the First Degree but a conviction as to the offense of Possession of a Firearm. A third jury trial ensued on the undetermined count, resulting in Pinero's conviction of the offense of Murder in the First Degree, the substance of which we now review.

FACTS

The facts elicited at Pinero's third trial were substantially the same as those from the first trial:

The chain of events leading to the death of Ronk, an officer of the Honolulu Police Department, began on June 14, 1987 when he and two fellow officers went to Pinero's residence to serve him with [arrest warrants and other court documents] issued by the [Circuit Court of the First Circuit]. Ronk could not serve the [documents] because Pinero apparently saw the officers as they approached the front door of the house and left through the back door. Ronk and three other officers, Dwayne Takayama, Eric Kanda, and Eli Walters, attempted to serve the court [documents] again on the following day. But this time, two officers guarded the rear of the house and another guarded the front while Ronk approached the front door.

Takayama testified at trial that Ronk first spoke to Pinero's mother at the door and then entered the house, followed by Takayama. When asked whether her son was there, the mother replied he was not. Ronk sought and received permission from her to look around the house. He checked the hall closet, then proceeded to the bedrooms. Shortly after Ronk entered the second bedroom, Takayama heard sounds of a scuffle. Takayama ran to the bedroom and saw Ronk grappling with Pinero. The object of the struggle was the service revolver that the defendant had somehow snatched from the officer. Ronk had his arms around Pinero and was trying to pin the latter's arms down. The gun in Pinero's hand was pointing in the direction of the door so Takayama stepped back momentarily. A shot rang out; Takayama rushed into the bedroom with the other officers, who by then had entered the house through the back door. Ronk had been shot; he died shortly thereafter. The three officers subdued Pinero, handcuffed him, and placed him under arrest.

Pinero, 70 Haw. at 513-14, 778 P.2d at 708 (footnote omitted).

Pinero did not testify at the third trial. The defense attorney argued that Pinero was guilty of manslaughter rather than first degree murder because Pinero's state of mind with respect to causing the death of Ronk either arose from extreme emotional distress caused by Ronk's actions, or was reckless rather than intentional or knowing. ²

The issues on appeal concern: 1) excluded cross-examination testimony of a police officer; 2) a mistyped jury instruction; 3) an instruction allegedly failing to correctly state the law regarding First Degree Murder of a police officer; and 4) instructions on the issue of self-defense given over defense counsel's objections. For the reasons set forth below, we affirm the judgment of the circuit court.

DISCUSSION

1. Admissibility of evidence

During the cross-examination of Eli Walters, a police officer involved in the incident, the prosecutor objected to defense counsel's attempt to question Walters about a conversation between Walters and Ronk immediately prior to Ronk's attempt to serve the court documents at Pinero's home. Defense counsel's offer of proof was that he expected Walters to testify that the police lacked a search warrant and that Ronk would only attempt an arrest if Pinero came to the door or Ronk was given consent to enter. Defense counsel asserted that the evidence would tend to show that Ronk was not "in the performance of The judge sustained the objection to the question regarding the conversation between Walters and Ronk on the ground that the testimony was inadmissible under Hawaii Rules of Evidence (HRE) Rule 403. ³ The judge ruled that although the testimony concerning the existence of a search warrant may have been relevant as to whether Ronk was on "official business," allowing defense counsel to pursue this line of questioning would be "misleading, confusing, and take[ ] up too much time," because the officers were at Pinero's residence (1) to serve a temporary restraining order, the existence of which was excluded from mention at trial by a prior court order, and (2) to arrest him, indisputably official business.

official duties," an element of the offense of first degree murder.

The trial court's decision concerning the admissibility of evidence is subject to different standards of review:

[D]ifferent standards of review must be applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue. When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard.

Kealoha v. County of Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 676, recon. denied, 74 Haw. 650, 847 P.2d 263 (1993). In Kealoha, the trial court excluded evidence that an injured motorcyclist had failed to wear a helmet because the motorcyclist had no duty to wear one. We held:

Implicit in the trial court's...