State v. Santiago

• Court: Hawaii Supreme Court
• Writing for the Court: Before RICHARDSON; ABE
• Citation: State v. Santiago, 53 Haw. 254, 492 P.2d 657 (Haw. 1971)
• Decision Date: 29 December 1971
• Docket Number: No. 4966,4966
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Norman SANTIAGO, Defendant-Appellant.

Page 657

492 P.2d 657

53 Haw. 254

STATE of Hawaii, Plaintiff-Appellee, v. Norman SANTIAGO, Defendant-Appellant.

No. 4966.

Supreme Court of Hawai'i.

Dec. 29, 1971.

Syllabus by the Court

1. To admit evidence of prior convictions to impeach a criminal defendant's credibility when he takes the stand to testify, imposes an unreasonable burden on the defendant's right to testify in violation of the due process clauses of the Hawaii and United States Constitutions.

2. Nothing prevents the Hawaii Constitution from fashioning greater protections for criminal defendants than the protections of the United States Constitution.

3. Art. I, Section 8 of the Hawaii Constitution prevents the state from introducing a defendant's custodial admissions and confessions in either the state's case in chief or in impeachment, unless the state shows that the defendant was warned that he had a right to remain silent, that anything said could be used against him, that he had a right to the presence of an attorney, and that one would be appointed for him if he could not afford one.

4. To instruct a jury to presume the existence of malice aforethought from proof of a killing violates an accused's right to have every element of the offense proved beyond a reasonable doubt.

5. Courts are free to apply new holdings on criminal law retroactively.

6. To avoid disparate treatment between the defendant in whose case a new constitutional ruling is announced and other defendants appealing on direct review, the ruling that malice aforethought may not be presumed will be applied to all cases arising on direct review.

7. An instruction on self-defense should be given whenever the evidence fairly raises the issue of self-defense, even if the instruction is inconsistent with the accused's alternate theory that the killing was accidental.

James Blanchfield, Deputy Public Defender, Honolulu (Brook Hart, Public Defender, with him on the briefs), for defendant-appellant.

Douglas L. Halsted, Deputy Pros. Atty., Honolulu (Barry Chung, Pros. Atty., and Patricia K. Park, Deputy Pros. Atty., with him on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

ABE, Justice.

This case presents a series of troublesome issues concerning the conduct of a criminal trial. In brief we are called upon to decide:

I. Whether in a criminal case the defendant's credibility as a witness may be impeached by showing that he had previously been convicted of first degree burglary.

II. Whether custodial admissions made by the defendant, who had not been properly apprised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), may be used to impeach the defendant when he takes the stand, even though the admissions could not be introduced as direct evidence in the prosecutor's case in chief.

III. Whether in a murder case the jury could properly be instructed to presume the existence of malice aforethought. $IV. Whether on the evidence introduced below, a self-defense instruction should have been given.

We resolve all issues in favor of the defendant and remand the case for a new trial.

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* * *

The defendant was convicted of first degree murder and sentenced to life imprisonment without possibility of parole.

The conviction arose from an incident occurring in October of 1969 at the Queen's Hotel in Honolulu, where the defendant, Norman Santiago, and April Piko were living. On the night of the incident, the defendant and Miss Piko had quarreled and the defendant had gone out to a store. Meanwhile Miss Piko had phoned her mother to ask her to take her home. Miss Piko had, apparently, also summoned a policeman.

When the defendant returned from the store, he found Miss Piko preparing to leave and Officer Lindemann in the hallway of the hotel.

Apparently an agrument developed between the defendant and Officer Lindemann concerning the officer's right to be there. A dispute developed at the doorway, Officer Lindemann trying to open the door, and the defendant trying to close the door. A brutal struggle ensued, although there was conflicting testimony concerning who struck the first blow. There was testimony that Officer Lindemann was hitting the defendant with a flashlight, and the defendant was striking the officer with the officer's blackjack. The defendant testified that the officer went for his gun, and that they struggled over the holster. Several shorts were fired, striking the officer in several places. Other policemen who had been summoned to the hotel arrived. There was testimony that the defendant rose and pointed a gun at one of the newly arrived officers, but the latter fired two shots and felled the defendant.

Officer Lindemann died before arriving at the hospital.

The defendant was treated for his bullet wounds at the Queen's Hospital. He was questioned by the police first at the hospital and later at the police station.

I.

The first issue to be discussed arises from the following series of questions propounded by the prosecutor, Mr. Yim:

Q BY MR. YIM: Norman, were you convicted in the past of any felonies?

A Yes.

Q When was this?

A When I was 20 years old but long time ago. It was for burglary.

Q Burglary?

A Yes.

Q You remember what degree of burglary.

A First degree burglary.

MR. YIM: I have no questions, your Honor.

It is the law in virtually every state that evidence of prior convictions may not be admitted in order to show that the defendant has a criminal propersity and is likely to have committed the crime charged. ¹

At the same time, however, if the accused takes the stand to testify in his own defense, prior convictions may be introduced in order to impeach his credibility as a witness. ² Some states restrict the sorts of crimes which may be used to impeach credibility, holding that only felonies, ³ or infamous crimes, ⁴ or crimes involving moral turpitude ⁵ may be used. In a few jurisdictions the trial judge determines in each case whether the probative value of evidence of prior crimes outweighs its prejudicial effects. ⁶ To ensure that prior convictions are considered only in weighing the defendant's credibility, and not in determining whether the defendant is guilty of the crime charged, judges give the jury a limiting instruction to that effect. ⁷

A number of authorities have come to believe that when the witness to be impeached is also the defendant in a criminal case, the introduction of prior convictions on the issue of whether the defendant's testimony is credible creates a substantial danger that the jury will conclude from the prior convictions that the defendant is likely to have committed the crime charged. ⁸ The danger of prejudice is scarcely mitigated by an instruction to consider the prior convictions only in determining whether or not the defendant's testimony is credible. To inform the jury in a rape case that the defendant has a prior rape conviction and then instruct them to consider the conviction only in evaluating the defendant's credibility is to recommend 'a mental gymnastic which is beyond, not only their power, but anybody else.' ⁹ As the United States Supreme Court stated in Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 426 (1968), '(T)here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.'

Admission of prior convictions to impeach credibility puts the criminal defendant who has prior convictions in a tremendous dilemma. He knows that the jury will learn of his prior convictions only if he takes the stand to testify in his own defense. He knows that the jury may use his prior convictions in its determination of whether or not he is guilty. Any defendant who has prior convictions will therefore feel constrained not to take the stand.

It has long been recognized that every criminal defendant has a right to testify in his own defense. That right is 'basic in our system of jurisprudence' and implicitly guaranteed by the Due Process Clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); Hovey v. Elliott, 167 U.S. 409, 417-419, 17 S.Ct. 841, 42 L.Ed. 215 (1897). While technically the defendant with prior convictions may still be free to testify, the admission of prior convictions to impeach credibility 'is a penalty imposed by courts for exercising a constitutional privilege.' Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). That penalty 'cuts down on' the right to testify 'by making its assertion costly.' Griffin, 380 U.S. at 614, 85 S.Ct. 1229 (holding that prosecutorial comment on a defendant's failure to take the stand is an unconstitutional burden on his right not to testify).

Despite the burden imposed on the defendant's right to testify, we might nevertheless sanction admission of prior crimes to impeach credibility if there were some value outweighing the burdens imposed. It is apparent, however, that prior convictions are of little real assistance to the jury in its determination of whether the defendant's testimony as a witness is credible. When the prior crime has nothing to do with dishonesty, there may be no logical connection whatsoever between the prior crime and the determination of whether the defendant may be believed. Even if the crime involves dishonesty or false statements, in light of the fact that every criminal defendant may be under great pressure to lie, the slight added relevance which even a perjury conviction may carry would not seem to justify its admission. ¹⁰ Furthermore, since the jury is presumably qualified to determine whether or not a witness is lying from his demeanor and his reaction to probing cross-examination, there would appear to be little need for...