State v. Renon

• Decision Date: 18 March 1992
• Docket Number: Nos. 14876,14841,s. 14876
• Citation: 828 P.2d 1266,73 Haw. 23
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Efren RENON, Defendant-Appellant. STATE of Hawaii, Plaintiff-Appellee, v. Renato PAET, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1266

828 P.2d 1266

73 Haw. 23

STATE of Hawaii, Plaintiff-Appellee, v. Efren RENON, Defendant-Appellant.

STATE of Hawaii, Plaintiff-Appellee, v. Renato PAET, Defendant-Appellant.

Nos. 14876, 14841.

Supreme Court of Hawai'i.

March 18, 1992.

Syllabus by the Court

1. Hawaii Rule of Evidence (HRE) 404(b) reiterates the common law rule that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.

2. When evidence of other crimes, wrongs or acts is offered by the prosecution, the court must first determine if the evidence is relevant and probative of any other fact that is of consequence to the determination of the action, such as motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.

3. If evidence of other crimes, wrongs or acts is determined to be relevant, the court must balance the probative value of the evidence against its prejudicial impact.

4. Where incident of other crime offered is part of alleged conspiracy, the evidence is admissible under HRE 404(b) because it is not an "other" crime. The evidence is offered as direct evidence of the fact in issue, not as circumstantial evidence requiring an inference as to the character of the accused.

5. A formal charge in the indictment is not a necessary predicate to the admissibility of facts and circumstances showing the existence of a conspiracy to commit the principal offense charged.

6. Acts of a conspiratorial nature may be shown under the rubric of preparation or plan.

7. In weighing the probative value of otherwise prohibited evidence against its prejudicial impact, the court must consider a variety of matters, including the strength of the evidence as to the commission of the crime, the similarities between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

John D. Yamane, Honolulu (Leavitt, Yamane & Soldner, of counsel), for defendant-appellant Efren Renon.

Ignacio R. Garcia, Honolulu (Garcia & Garcia, of counsel), for defendant-appellant Renato Paet.

Keith M. Kaneshiro, Pros. Atty., Honolulu (Charlotte J. Duarte and James M. Anderson, Deputy Pros. Attys., with him on the brief), for plaintiff-appellee.

Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ.

MOON, Justice.

Defendants-appellants Efren Renon (Renon) and Renato Paet (Paet) (collectively "defendants") separately appeal their convictions and sentences following a joint trial in the Circuit Court of the First Circuit. ¹ Renon was found guilty of Attempted Murder in the First Degree, in violation of Hawaii Revised Statutes (HRS) §§ 705-500 and 707-701(1)(a); Murder in the Second Degree, in violation of HRS § 707-701.5(1); and Carrying a Firearm on Person Without License, in violation of HRS § 134-9. Paet was found guilty of the offense of Accomplice to Murder in the Second Degree, in violation of HRS §§ 702-221(2)(c), 702-222(1)(b), and 707-701.5(1).

On appeal, Renon alone contends that the trial court erred in joining both Paet and him with two other defendants in a single trial that involved separate incidents. Both Renon and Paet assert that the trial court abused its discretion in allowing evidence of a prior shooting to be presented to the jury because that evidence was more prejudicial than probative. Based on our review of the record, we conclude that the trial court did not abuse its discretion in ordering a joint trial or in admitting the evidence of the prior shooting.

I. FACTS

The charges against defendants arose out of a shooting incident that occurred on September 19, 1989 in the parking lot of Farrington High School, which resulted in the death of Gilbert Asuncion (Asuncion). During the incident, shots were also fired at Kennedy Manuel (Manuel); however, he was not injured. Escalating hostilities between two rival youth gangs, the Hawaii Brothers and the Judas, was allegedly the reason for the shooting. defendants are members of the Hawaii Brothers gang and Asuncion and Manuel are Judas gang members.

The prior shooting incident, which defendants contend should not have been presented to the jury, occurred twenty-four hours before the Farrington shooting. On that day, September 18, 1989, several members of the Judas gang, including Asuncion, were playing basketball at Mokauea Mini Park in Kalihi. Paet and other Hawaii Brothers gang members, including Ireneo Masulit (Masulit) and Frederick Alvarez (Alvarez), drove by the Mini Park. Masulit, who was sitting in the back of a truck driven by Alvarez, fired a shot at a Judas gang member who was in the park. Masulit's shot missed the gang member, but hit and wounded an elderly woman.

The evidence presented at trial indicated that on September 19, 1989, Paet drove Renon, Alvarez, and his (Paet's) girlfriend to Farrington to pick up Masulit's girlfriend. As they entered the high school parking lot, Renon asked where the gun was located. Renon, Alvarez, and Paet looked for and talked about the gun. Paet indicated that the gun was under the seat. Renon retrieved the gun and placed it in the waistband of his pants, while Paet parked the car in a dirt area near the parking lot exit. Masulit's girlfriend arrived, but she and Paet's girlfriend left the area because Renon indicated that there was going to be trouble.

Meanwhile, two cars containing Judas gang members had entered the parking lot. Asuncion and Manuel were riding in the second car. The two cars drove around the lot and stopped approximately ten to fifteen feet away from Paet's car because of traffic. Witnesses testified that Renon walked up to the second car, pulled his hands out from under his shirt, and shot Asuncion in the head. Manuel jumped out from the front passenger seat and struck Renon's hands with a pipe in an attempt to dislodge the gun. When this failed, Manuel ran. While running, Manuel heard gunshots behind him and turned to see Renon shooting at him.

After the shooting, Renon, Paet, and Alvarez drove to Alvarez's house where they met Masulit and other Hawaii Brothers gang members who were already there.

Two days later, on September 21, 1989, Alvarez telephoned Walter Felipe (Felipe), a Hawaii Brothers gang member, and told him that Renon had shot someone. Alvarez instructed Felipe to get the gun, which was hidden in the door panel of Renon's van, and hide it. Felipe complied, but later told police where the gun was hidden. Expert testimony at trial revealed that the same gun was involved in both the Mini Park shooting and the Farrington shooting. The evidence at trial also showed that a couple of days before the Farrington shooting, Alvarez, Renon, and Paet had taken the gun to Felipe to grind off the serial numbers.

II. PROCEDURAL HISTORY

A. Complaints Filed

Defendants were charged in the same complaint with offenses relating to the Farrington shooting. Renon was charged with the murder of Asuncion, the attempted murder of Manuel, and carrying a firearm without a license. The charges against Paet included being an accomplice to the murder of Asuncion and the attempted murder of Manuel, as well as a firearms violation.

Masulit was charged in a separate complaint with attempted murder in connection with the Mini Park shooting and a firearms violation.

Alvarez was also charged in a separate complaint with hindering prosecution for having asked Felipe to hide the gun used in both shootings.

B. Motion to Join Defendants in Single Trial

On November 27, 1989, pursuant to Hawaii Rule of Penal Procedure (HRPP) 8(b)(3), the State filed a motion to join Renon, Paet, Masulit, and Alvarez in a single trial. The State argued that joinder of the four defendants in a single trial was proper because their various offenses were part of an uncharged conspiracy to execute a common scheme or plan of retaliation by one gang against a rival gang. The State also argued that both shootings were so closely connected in time, place, and occasion that it would be difficult for the State to separate proof of one charge from proof of the others. Paet opposed the State's motion, asserting that evidence of his presence at the Mini Park shooting would prejudice the jury against him in the Farrington case. Renon also objected, arguing that it was unfair to join him with the others because he had not been present at the Mini Park shooting.

In granting the State's motion, the court stated (emphasis added):

Any joinder involves prejudice, and the question is whether or not what is offered is more probative of an issue in the case, either an element of an offense or an element of a defense. Essentially, what the [c]ourt has indicated in its questions during argument is that the prosecution's proof, both direct and circumstantial, show an uncharged conspiracy; and that's a common scheme or plan. It's for those reasons that the [c]ourt grants the motion to consolidate.

However, the court granted defendants leave to file motions for severance at any time before trial.

C. Masulit's Motion for Severance Joined by Renon

On February 2, 1990, Masulit filed a motion for severance on the grounds that he was present only at the Mini Park shooting, was charged only in connection with that shooting, and was not present at either the Farrington shooting or when the other defendants were arrested. Renon joined in the motion. The State maintained its position that joinder was proper based on its conspiracy theory. The court, in denying the motion for severance, reaffirmed its prior ruling, finding that the evidence established an uncharged conspiracy among the defendants to execute a common plan, which was probative of their motivation and intent with respect...