State v. Russo

• Decision Date: 12 April 1984
• Docket Number: No. 8425,8425
• Citation: 67 Haw. 126,681 P.2d 553
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Patrick Constantino RUSSO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 553

681 P.2d 553

67 Haw. 126

STATE of Hawaii, Plaintiff-Appellee, v. Patrick Constantino RUSSO, Defendant-Appellant.

No. 8425.

Supreme Court of Hawai'i.

April 12, 1984.

Syllabus by the Court

1. Our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the expedient of compelling it from his own mouth.

2. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

3. Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

4. The following measures to apprise an accused person of his right to silence and to assure a continuous opportunity for its exercise are necessary before his statement can be used as evidence at trial: 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.

5. The rights fashioned by the drafters of the Constitution of the State of Hawaii are not necessarily circumscribed by the dictates of federal law.

6. The protections that the Supreme Court of the United States enumerated in Miranda v. Arizona have an independent source in the Hawaii Constitution's privilege against self-incrimination. Consequently, when claims of Miranda violations are advanced, the courts of the State of Hawaii are compelled to seek primary guidance from precepts enunciated in the seminal decision and decisions of the Hawaii Supreme Court rather than later federal decisions like Harris v. New York.

7. An arrest is not a "condition precedent" to custodial interrogation, and questioning in a setting as familiar to the defendant as his residence may still be custodial in character.

8. Interrogation giving rise to Miranda rights is questioning of a nature that would subjugate the individual to the will of his examiner and thereby undermine the privilege against compulsory self-incrimination.

9. In deciding whether questioning was carried on in a custodial context, the totality of circumstances must be considered, including the time, place and length of the interrogation, the nature of the questions asked, the conduct of the police at the time of the interrogation, and any other pertinent factors. Among the other pertinent factors to be considered are whether the investigation has focused on the suspect and whether the police have probable cause to arrest him prior to questioning.

10. Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment to the United States Constitution and Article I, § 7 of the Hawaii Constitution--subject only to a few specifically established and well-delineated exceptions.

11. A search based on consent is a recognized exception to the rule that all searches conducted without a warrant are unreasonable per se. But consent in the constitutional sense means more than the absence of an objection from the person being subjected to a search. It must be shown that such consent was, in fact, freely and voluntarily given.

12. The government's burden of demonstrating consent was freely and voluntarily given is particularly heavy in cases where the person is under arrest.

13. Whether consent to a search was freely and voluntarily given must be determined from the totality of circumstances surrounding the person's purported relinquishment of a right to be free of unreasonable searches and seizures.

14. Although knowledge of a right to refuse is not an indispensable element of a valid consent, the fact that a person was not so advised is nevertheless a factor to be considered in evaluating the totality of circumstances that bear upon the question of whether consent was freely and voluntarily given.

15. The question posed for determination when the State asserts the improper admission of evidence against the defendant constituted harmless error is whether the properly admissible evidence was such that the improperly admitted evidence could not have affected the jury verdict. In short, the issue is whether the improper addition of evidence was harmless beyond a reasonable doubt.

Richard T. Pafundi, Honolulu, for defendant-appellant.

Vicente F. Aquino, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

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

NAKAMURA, Justice.

Patrick Constantino Russo appeals from a judgment of the Circuit Court of the First Circuit adjudging him guilty of two murders and sentencing him to life imprisonment for each. He contends the jury verdict finding him guilty of the murders is not supported by substantial evidence, the assistance provided him by trial counsel was ineffective, and the circuit court committed reversible error in several respects during the course of trial. Concluding from a review of the record that the trial court erred in not suppressing statements elicited from the defendant without the procedural safeguards designed to protect his privilege against self-incrimination and not excluding evidence obtained in violation of his right to be free of unreasonable searches and seizures, we vacate the convictions and remand the case for retrial.

I.

Shortly after 8:00 p.m. on January 16, 1980, a volley of four to seven shots was fired into the Sports Page Lounge, a bar situated on Kalakaua Avenue in Honolulu, and two of its patrons were killed by the gunfire. Witnesses at the scene of the crime reported a male in a white, late-model Chevrolet, bearing license plate number 9E-2961 or 9E-2962, was the gunman. An examination of three empty cartridges and fragments of lead projectiles recovered at the scene by the police established that the murder weapon was in all probability a .38 caliber pistol.

The investigating officers learned from motor vehicle registration records that the registered owner of the vehicles with the foregoing license plates was an auto leasing company. The officers were subsequently informed by its manager that 9E-2961 was the license plate number of a white 1978 Chevrolet Nova then under lease to Jerome Gordon and 9E-2962 was that of another white '78 Nova leased to Patrick Constantino Russo. They were also given the lessees' residence addresses by the manager. Thus after interviewing the witnesses to the shootings, four officers, Detective Jeffrey Yamashita and three others, proceeded to seek out Gordon and Russo for questioning.

The officers first sought entry to the apartment building where Gordon reportedly resided. But the structure's security scheme prevented them from entering, so they drove to the apartment building where Russo lived. Since access to both the parking and the residential areas of the latter was unimpeded by security devices, the officers quickly located the Chevrolet Nova leased by Russo. When Detective Yamashita ran his hand over the Nova's front grill, he noted it was warm. The officers thereafter proceeded to the suspect's apartment at approximately 4:00 a.m.

When Russo appeared at the door, Detective Yamashita apprised him of the purpose for the early morning call. He was informed the police were investigating the shootings at the Sports Page Lounge and that descriptions given them of the vehicle driven by the suspected gunman matched that of the vehicle parked on the third floor of the apartment building. After excusing himself to change into more appropriate clothing, Russo reappeared and let the officers into the apartment.

He led the four officers to the living room, where the questioning commenced with inquiries unrelated to the crime under investigation. Yamashita then asked Russo about the 1978 Chevrolet Nova; the suspect's reply was that he had leased it on the preceding morning and he was th eonly one with present access to the vehicle. He acknowledged driving it the night before to and from a nearby drinking establishment and admitted he had been there from about 7:30 to 11:00 p.m. He denied being at the Sports Page Lounge. The detective followed up by asking Russo whether he owned a firearm. The query drew a response from the suspect that he had indeed purchased a handgun, also on the morning of January 16th.

Yamashita continued to pursue the matter by asking Russo whether he had retained the sales slip for the transaction; whereupon the suspect produced a buyer's copy of the record of a charge to his MasterCard account for the purchase of the following: a .38 caliber Smith & Wesson Special revolver, some paper targets, two boxes of ammunition, a pair of binoculars, a sports bag, a pair of ear protectors, and cleaning equipment for a firearm. The next query related to the whereabouts of the purchased firearm, and the reply was that it was in the parked vehicle. A request to see the weapon followed, and Russo complied by leading the team of police officers to the area where the car was parked.

When the suspected gunman and the investigators reached the vehicle, he opened the trunk, peered in, and exclaimed, "someone set me up." He then stepped back and again cried out, "someone set me up." Thereupon, Yamashita looked into the trunk, turned to Russo, and inquired what the cryptic outcry was meant to convey. Russo's explanation was that the firearm was not where he had expected it would be. Upon further prodding by the police officers on where the gun might be, he stated it...