State v. Reiger
| Decision Date | 14 May 1982 |
| Docket Number | No. 7753,7753 |
| Citation | 64 Haw. 510,644 P.2d 959 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Vernon REIGER, Sr., Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Where an indictment alleged all the necessary elements of the crime and the evidence was such that the jury could not have been misled by possible surplus words appearing in the indictment, the conviction will be upheld.
2. Where the evidence of the crime was such that it could only have been done intentionally, the use of the surplus words "or knowingly" in an instruction was not error.
3. Three criteria determine whether the admission of police photographs at trial was proper: one, the government must have had a reasonable need to introduce the photographs; two, the photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and three, the manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.
4. A witness' statement, in explaining the use of a particular name by herself and the appellant, that appellant used that name because it was not the one under which he had a long police record, was properly admitted since it was relevant to the identity of the appellant and since on balance, it was more relevant than prejudicial.
5. On the record, the State sufficiently established that statements made by a juror, on questioning by the court in the presence of other jurors, as to what she had heard outside of court, was harmless to the appellant insofar as prejudice to the other jurors went and thus, was not prejudicial.
6. Where the State made disclosure at pre-trial that fingerprints found at the scene of the crime did not connect with the appellant and appellant's counsel did not thereafter specifically demand any fingerprint reports or follow up on the information given him, no violation of Rule 16(d), Hawaii Rules of Criminal Procedure justifying sanctions, occurred.
7. Under former HRS § 621-22 before a witness could be questioned about a conviction, it had to be shown to the satisfaction of the court that the witness had been convicted of one or more felonies or misdemeanors involving moral turpitude, and where no such showing was made it was not error to sustain an objection to any questions on the subject.
8. Where appellant's trial counsel's conduct was within the range of competence demanded of attorneys in criminal cases, a conviction will not be overturned for ineffective assistance of counsel.
Leslie S. Fukumoto, Honolulu (Pyun, Kim & Okimoto, Honolulu, of counsel), for defendant-appellant.
Arthur E. Ross, Deputy Pros. Atty., Dept. of the Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.
Before RICHARDSON, C. J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ.
This is an appeal from a jury conviction for attempted murder, rape in the first degree and burglary in the first degree. We affirm.
We note that appellant's opening brief fails, in many respects, to conform to our Rule 3(b)(5). Rule 3(b)(5), Hawaii Supreme Court Rules, is intended to provide a format which clearly spotlights the issues on appeal. The failure of appellant's counsel to follow the provisions of that rule make many points of the appeal difficult to understand and consequently, imposes an undue burden on the court and opposing counsel. Although we have the power to disregard those points where the rules have not been followed, we will not exercise that power in this particular case. Counsel are placed on notice, however, that that power, as well as the power to strike portions of the brief or to levy sanctions against counsel, may well be exercised in a future case.
Appellant's first claim of error is that the presence of the words "or knowingly" in Count I of the indictment renders that Count fatally defective.
No objection was made on that ground in the court below, but counsel claims that, under our decision in State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), we must, nevertheless, reverse.
Count I of the indictment read:
On or about the 26th day of February, 1979, in the City and County of Honolulu, State of Hawaii, VERNON REIGER, SR., did intentionally or knowingly attempt to cause the death of Josephine Hoapili by shooting her with a firearm, an act which constitutes a substantial step in a course of conduct intended to culminate in the commission of the crime of Murder, thereby committing the offense of Attempted Murder in violation of Sections 705-500 and 707-701 of the Hawaii Revised Statutes.
Section 705-500, HRS, provides in part:
(1) A person is guilty of an attempt to commit a crime if he:
....
(b) Intentionally engages in conduct which, under the circumstances as he believes them to be, constitutes a substantial step in the course of conduct intended to culminate in his commission of the crime.
While intentionally and knowingly have somewhat varying definitions under §§ 702-206(1) and (2), nevertheless, the essential element of intentional wrong is satisfied if the act which is the attempt constitutes a substantial step in the course of conduct intended to culminate in the commission of the crime, in this case, murder. All of the essential elements of the crime of attempted murder were contained in the charge. Here, under the evidence, the assailant, holding the gun against the victim, fired three bullets into her head. We fail to see how, in those circumstances, there could be any question as to whether the act of shooting the victim was intentional or that either the appellant or the jury was misled by the appearance of the words "or knowingly" in the charge.
The same can be said of the claim that the unobjected to repetition of the charge in the instructions was erroneous. Neither of these grounds have merit.
The third ground relied on on appeal is the claim of error in permitting the introduction into evidence of certain photographs which the appellant dubs "mugshots". The photographs were the photographic lineup or array shown to the victim in the hospital after the attack. In this case, the defense was alibi. The question of identification was, therefore, crucial to the proof of the prosecution's case and obviously, proof that the victim had picked the appellant out of a photographic display at an early point was relevant and necessary to the government's case. In State v. Kutzen, 1 Haw.App. 406, 620 P.2d 258 (1980), our Intermediate Court laid down a tripartite test for the introduction of such evidence. One, the government must have a demonstrable need to introduce the photographs-that test was met. Two, the photographs themselves, if shown to the jury, must not imply that the defendant had a prior criminal record-that test was met, and three, the manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs-that test was met. There was no error in the introduction of the photographic lineup.
Appellant also complains that the State engaged in improper argument in its opening and closing statements. We have examined the statements complained of and find them to be no more than fair comment upon the manner in which the attack on the victim in question was carried out.
Appellant contends that there was evidence of prior convictions introduced which was irrelevant and erroneous. The State's witness, Shannon Scott, appellant's former girlfriend, and former inhabitant of the apartment where the attack occurred, had testified that she had adopted the name Scott which was the name under which appellant had lived with her. When she was asked why, she answered No objection to this testimony was made at the time. Indeed, it was not until the following Monday, that a motion for a mistrial was inserted into a lengthy argument about other matters. No motion to strike the evidence or for a cautionary instruction was ever asked.
We note that the testimony does not say that appellant had ever been convicted of any crime and we think,...
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State v. Kelekolio
...inconsistent, or misleading. State v. Halemanu, 3 Haw.App. 300, 306, 650 P.2d 587, 592 (1982) (citing, inter alia, State v. Reiger, 64 Haw. 510, 644 P.2d 959 (1982)). We note that Kelekolio never requested an instruction on the issue of voluntariness; he therefore alleges plain error on app......
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80 Hawai'i 27, State v. Holbron
...element of the crime of criminal attempt," State v. Faulkner, 61 Haw. 177, 178, 599 P.2d 285, 286 (1979); see also State v. Reiger, 64 Haw. 510, 512, 644 P.2d 959, 962 (1982), the case law in this jurisdiction directly addressing the subject of general attempt liability is sparse. 13 Howeve......
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Reiger v. Christensen
...pass key. Reiger was convicted as charged after a jury trial in Hawaii state court. The Hawaii Supreme Court affirmed. State v. Reiger, 64 Hawaii 510, 644 P.2d 959 (1982). On August 4, 1982, Reiger filed a habeas corpus petition. The district court denied his petition on the merits without ......
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76 Hawai'i 387, State v. Kupau
...inconsistent, or misleading. State v. Halemanu, 3 Haw.App. 300, 306, 650 P.2d 587, 592 (1982) (citing, inter alia, State v. Reiger, 64 Haw. 510, 644 P.2d 959 (1982)). We note that [the defendant] never requested an instruction on the issue of voluntariness; he therefore alleges plain error ......