State v. Sadino, 7935

• Decision Date: 25 March 1982
• Docket Number: No. 7935,7935
• Citation: 642 P.2d 534,64 Haw. 427
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Rudy SADINO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 534

642 P.2d 534

64 Haw. 427

STATE of Hawaii, Plaintiff-Appellee, v. Rudy SADINO, Defendant-Appellant.

No. 7935.

Supreme Court of Hawai'i.

March 25, 1982.

Syllabus by the Court

1. Appellate courts will not consider questions raised for the first time on appeal except where there is plain error or defects affecting substantial rights of a defendant.

2. Intent is rarely proven by direct evidence. Circumstantial evidence and reasonable inferences arising from circumstances surrounding the act can prove the requisite intent.

3. The mind of an alleged offender may be read from his acts, conduct and inferences fairly drawn from all the circumstances.

Keith M. Kiuchi, Deputy Public Defender, Honolulu, on the brief, for defendant-appellant.

Robert S. Rodrigues, Deputy Pros. Atty., County of Hawaii, Hilo, on the brief, for plaintiff-appellee.

Before RICHARDSON, C. J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices, assigned by reason of vacancies.

PER CURIAM.

Defendant-appellant, Rudy Sadino (hereinafter appellant), appeals from his conviction by jury of two counts of murder and one count of criminal property damage in the first degree ¹, for which he was sentenced to concurrent terms of life imprisonment with the possibility of parole on the murder charges and a ten-year term on the criminal property damage charge. We affirm.

Appellant was indicted for the murders of David Wong and Albert Beckley, whose charred remains were found bound to a bed, with their mouths gagged, in a room of the Pacific Hotel in downtown Hilo. The bodies were discovered after a fire was extinguished upstairs of Mun Cheong Lau Restaurant on March 27, 1979. Both Wong and Beckley died from suffocation prior to the fire.

The prosecution's case against appellant was based on latent fingerprints, determined to be appellant's, lifted from a watch case in the decedent's room, and appellant's admission to three persons that he killed the two men and then set the fire. However, appellant testifying on his own behalf, denied killing the victims and setting the fire. He stated that he made the admissions only as a joke. Appellant also testified that he touched a watch case in the hotel previously and that accounted for his fingerprints being on the watch case.

Appellant raises two issues on this appeal. First, whether the trial court erred in not dismissing appellant's indictment for lack of independent grand jury counsel. Second, whether the trial court erred in denying appellant's motion for judgment of acquittal.

The record clearly shows that appellant failed to raise his first contention below. No motion, either oral or written, was filed in seeking the dismissal of the instant indictment for lack of the independent grand jury counsel created by Article I, Section 11 of the Hawaii State Constitution. It is well settled that appellate courts will not consider questions raised for the first time on appeal. State v. DeSilva, 64 Haw. 40, 636 P.2d 728 (1981); State v. Martin, 62 Haw. 364, 616 P.2d 193 (1980); State v. Kahalewai, 56 Haw. 481, 541 P.2d 1020 (1975). However, we may depart from this rule where there is plain error or defects affecting substantial rights of a defendant. State v. Naeole, 62 Haw. 563, 617 P.2d 820 (1980); State v. Martin, supra; Rule 52(b), H.R.P.P.

The record also reveals that the attorney prosecuting this appeal was not the same as the one who tried the case. This fact does not excuse the failure to raise this issue below. However, we believe that this issue involving the independent grand jury counsel was not plain error or a defect affecting the substantive rights of appellant. We have held that the grand jury counsel was created for the benefit of the grand jury in order to ensure an independent grand jury, not a substantive right of the criminal defendant. State v. Hehr, 63 Haw. 640, 633 P.2d 545 (1981). Moreover, Article I, Section 11 of the Hawaii Constitution is not self-executing and a defendant has the burden of showing prejudice by the absence of the independent counsel. State v. Rodrigues, 63 Haw. 412, 629 P.2d 1111 (1981). Our recent decisions on the issue of the independent grand jury counsel ² make clear that neither plain error nor a defect affecting substantial rights of a defendant was involved. Therefore, we decline to consider the merits of this issue.

Appellant's second contention is that the trial court erroneously denied his motion for judgment of acquittal. Specifically, appellant argues that the State failed to prove the requisite state of mind necessary to establish the crime of murder. Appellant contends that there was evidence of reckless conduct, not conduct that was intentional or knowing.

In order to obtain a conviction for murder, HRS § 707-701 requires that the criminal act be done intentionally or knowingly. HRS § 702-206(1) and (2) sets forth the standards of intentional or knowing conduct. ³

The standard which guides the trial judge in evaluating a motion for judgment of acquittal is:

... whether, upon the evidence viewed in the light most favorable to the government, and giving full play to the right of the jury to determine credibility, weigh the evidence, and draw therefrom justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.

State v. Brighter, 62 Haw. 25, 31, 608 P.2d 855, 859 (1980).

The law recognizes the difficulty by which intent is proved in criminal cases. We have consistently held that since intent can rarely be proved by direct evidence, proof by circumstantial evidence and reasonable inferences arising from circumstances surrounding the act is sufficient to establish the requisite intent. State v. Rushing, 62 Haw. 102, 612 P.2d 103 (1980); State v. Hernandez, 61 Haw. 475, 605 P.2d 75 (1980); State v....