State v. Pokini

• Decision Date: 10 October 1961
• Docket Number: No. 4203,4203
• Citation: 45 Haw. 295,89 A.L.R.2d 1421,367 P.2d 499
• Parties: , 89 A.L.R.2d 1421 STATE of Hawaii v. James Kalaukoa POLINI and Henry Villita.
• Court: Hawaii Supreme Court

Page 499

367 P.2d 499

45 Haw. 295, 89 A.L.R.2d 1421

STATE of Hawaii v. James Kalaukoa POLINI and Henry Villita.

No. 4203.

Supreme Court of Hawai'i.

Oct. 10, 1961.

Syllabus by the Court

1. A brief on appeal must contain a specification of errors which sets out separately the particulars of each error intended to be urged. (Rule 3(b)(4) of this court.)

2. An adequate cause of fear is such as would, under the same circumstances, cause fear in a person of ordinary firmness of like age, sex and health. R.L.H.1955, § 306-6.

3. Stolen money can be the subject of a robbery.

4. In robbery, as in larceny cases, one who has the right of possession as against the thief is, so far as the latter is concerned, the owner, and ownership may be laid in him in the indictment even though he is himself a thief. An allegation of taking from and ownership of S., means at most that S. was entitled to the possession of the thing taken as against defendant who was not the owner thereof. The thing taken being money previously stolen, nevertheless there is no fatal variance.

5. Article I, section 5, of the State Constitution, relating to search and seizure, is in the exact language of the Fourth Amendment and the federal exclusionary rule applies in this State.

6. An objection that evidence was obtained by an illegal search and seizure must be seasonably made or it is waived. A motion before trial to suppress the evidence ordinarily is essential.

7. The question of illegality of a search and seizure may be raised at the trial on facts which, in the course of trial, are thrust upon the attention of the court and which uncontrovertably show the illegal character of the search and seizure. But when the evidence brought out in the course of trial is inconclusive defendant must justify the interruption of the trial for the consideration of the collateral issue injected by the necessity of taking further evidence, or else fail for want of a timely motion to suppress.

8. A search without warrant after a lawful arrest is not constitutionally interdicted.

9. When a police officer makes an arrest on the basis of a message received over the police radio, the question of probable cause is to be adjudged upon the full information which caused the message to be sent out over the police radio and not upon the basis of the message alone.

10. Defendants have no standing to attack a search of a vehicle which they were occupying unlawfully, having abducted the owner and converted his car to their own use, nor to attack the seizure of guns found under the front seat.

11. A defendant has standing to attack a search of his person but must do so by a timely motion to suppress.

Ton Seek Pai, Honolulu, for plaintiffs in error.

Herbert H. Tanigawa, Deputy Pros. Atty., City and County of Honolulu, Honolulu, John H. Peters, Pros. Atty., City and County of Honolulu, Honolulu, on the briefs, for the State.

Before TSUKIYAMA, C. J., CASSIDY, WIRTZ, and LEWIS, JJ., and CROCKETT, Circuit Judge, assigned by reason of vacancy.

LEWIS, Justice.

Defendant-appellants were jointly tried on two indictments presented October 29, 1959, for robbery first degree. The indictment in the one case, Criminal No. 31125, which we will refer to as the first incident or the Fernandez case, was for the robbery of Kalani Fernandez of $300 on September 6, 1959. In the other case, Criminal No. 31126, the indictment was for the robbery of Harry K. Sonoda of $400 on the same day.

The two cases were consolidated for trial by stipulation. On March 30, 1960, upon trial commenced March 28, 1960, the jury returned verdicts of guilty in each case against both defendants. After judgment and sentence, a writ of error was obtained on June 27, 1960.

The specification of errors in defendants' brief alleges error in the charge of the court but fails to comply with the provision of our Rule 3(b)(4) that in such case 'the specification shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused, together with the objections urged at the trial.' Likewise, error is alleged in the admission of evidence but there has been no compliance with the provision of the same rule that 'the specification shall quote the grounds urged at the trial for the objection and the full substance of the evidence admitted or rejected, and refer to the page number in the transcript where the same may be found.' In too large a number of cases the court has encountered the same dereliction on the part of counsel. The significance of the specification of errors seems not to be appreciated. See Aiau v. Aiau, 39 Haw. 122; Territory v. Meyer, 37 Haw. 102, aff'd 9 Cir., 164 F.2d 845; Lazarus v. Lazarus, 12 Haw. 369, 374.

The above-cited rule requires that the specification 'set out separately the particulars of each error intended to be urged.' The provisions we have quoted in the preceding paragraph are specific as to the particulars required when errors are asserted in the charge of the court or the rulings on evidence, but in all instances particulars are required. These should be sufficient to show that the points urged upon this court were raised in the court below and preserved for review. This court should not be left to search the record to satisfy itself that such is the case.

In the statement of the case the questions involved are to be 'set forth in the briefest and most general terms, without names, dates, amounts or particulars of any kind,' as the rule provides (Rule 3(b)(3)). The specification of errors will follow, and should abstract the record in such a way as to show that the questions so stated are indeed involved.

The unsatisfactory nature of much of the briefing, and the unnecessary burden placed on the court thereby, maje it necessary that we inform the bar we intend to strictly enforce the rule hereafter.

Turning to the contentions presented by defendants, we first will consider the contention that the verdicts are not supported by the evidence. The court refused to direct verdicts for defendants and denied their motion for judgment notwithstanding the verdicts, following which a motion for new trial also was denied. These motions attacked the sufficiency of the evidence and asserted a fatal variance. We find the evidence substantial and clearly sufficient to support the verdicts. The question of variance is taken up at a later point in the opinion.

The evidence showed that at about one o'clock on the morning of September 6, 1959, a Sunday, Kalani Fernandez, the owner of a 1957 Oldsmobile, had with him in his car two boys, Mervyn Hezekia and Kenneth Harada. Fernandez was driving. At the intersection of Kapiolani and Date Streets, Honolulu, Fernandez noted a creamish white Mercury with four occupants, one of whom called out and told him that his cousin, Samuel Leslie needed help. Fernandez agreed to help and followed the Mercury to the Iolani School grounds on Date Street where the first incident occurred. This is the same matter for which Richard Yoshino was separately tried, convicted, and the conviction affirmed on August 10, 1961 in State v. Yoshino, 45 Haw. 206.

In this case the attack on the sufficiency of the evidence is centered on the words 'by force or putting him in fear,' which appear in the definition of robbery, R.L.H.1955, § 306-1.

The ground of fear must be adequate (§ 306-5). However, as stated in section 306-6:

' § 306-6. Adequate fear defined. An adequate cause of fear is such as would, under the same circumstances, cause fear in a person of ordinary firmness of like age, sex and state of health, and induce such a person to part with property, to avoid the apprehended injury or danger; or such as the taker of the thing believes, or has reason to believe will cause, and such as does in fact cause, that degree of fear.'

The evidence as to the first incident shows that upon arrival at the Iolani School grounds Fernandez got out of his automobile and three persons got out of the Mercury. Two of them were the present defendants. These persons were holding guns. They told Fernandez to hand over the money, and took from his person his wallet containing $300. Hezekia saw Fernandez' hands go up. Whether Fernandez was induced by fear to part with his wallet was a proper subject of inference by the jury from the evidence adduced. See State v. Casto, 120 Wash. 557, 207 P. 952. Clearly, the evidence was sufficient for the jury to so conclude. It was sufficient to show all of the elements of the offense, unless a different result is called for by the question raised as to the ownership of the $300 in Fernandez' wallet. This is considered below.

After taking Fernandez' wallet, defendants made Hezekia and Harada get out of Fernandez' car and into the back seat of the Mercury. They asked the boys 'where the money stay.' Yoshino, the third man from the Mercury, asked the same question. Finally, Hezekia told them: 'Oh, yes, stay up Papakolea * * * Harry Sonoda's house.' He knew what they were referring to because earlier, on Saturday evening, he had been out riding with Harry and Leroy Sonoda, ¹ Norman _____ and Cole _____, and had received from Leroy some information about a burglary which Leroy, Norman and Cole had perpetrated at a place on Date Street a day or two before the robbery.

After Hezekia furnished the information about Papakolea the Mercury proceeded there with Hezekia and Harada still in the back seat. Fernandez was taken away from the Iolani School grounds in his own car, the Oldsmobile, lying on the floor of the car in the back, with defendant Villita driving while Pokini sat in the front and held a gun on Fernandez' head, telling him not to move around. The Oldsmobile followed the Mercury to Papakolea. Fernandez was told they were going to Harry Sonoda's house.

Harry, who was Fernandez' cousin, had been with Fernandez and Hezekia earlier, on Saturday evening, but had returned home. When he heard his...