State v. Simpson

• Citation: 64 Haw. 363,641 P.2d 320
• Decision Date: 01 March 1982
• Docket Number: No. 7774,7774
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Steven Ray SIMPSON, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

Page 320

641 P.2d 320

64 Haw. 363

STATE of Hawaii, Plaintiff-Appellee, v. Steven Ray SIMPSON, Defendant-Appellant.

No. 7774.

Supreme Court of Hawai'i.

March 1, 1982.

As Amended March 17, 1982.

Syllabus by the Court

1. An indictment is not defective by the failure to appoint or by the absence of the independent grand jury counsel which was created by Article I, Section 11 of the Hawaii State Constitution.

2. A trial judge can grant a motion for judgment of acquittal at the close of the prosecutor's opening statement only when it clearly and affirmatively appears from the opening statement that the charge against the defendant cannot be sustained under any view of the evidence consistent with the statement.

3. An opening statement merely provides an opportunity for counsel to advise and outline for the jury the facts and questions in the matter before them.

4. An opening statement of counsel is not evidence.

5. The decision to grant or deny the motion for judgment of acquittal at the close of the prosecutor's opening statement lies within the discretion of the trial court and absent an abuse, such a ruling will not be disturbed on appeal.

6. In deciding a motion for judgment of acquittal, the trial judge determines 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.

Juliette T. Sarmiento and Keith M. Kiuchi, Deputy Public Defenders, Honolulu, on briefs, for defendant-appellant.

Stanford H. Masui, First Deputy Pros. Atty., County of Hawaii, Hilo, on brief, for plaintiff-appellee.

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

OGATA, Justice.

Defendant-appellant, Steven Ray Simpson (hereinafter appellant), appeals his jury conviction of murder in violation of HRS § 707-701 for which appellant was sentenced to life imprisonment with the possibility of parole. Appellant raises many issues in this appeal, but we find that only a few need discussion herein. ¹ For the reasons set forth below, we affirm appellant's conviction.

On December 11, 1978, the body of Mary Catherine Drapp was found in a field of tall grass in the Fern Forest subdivision on the island of Hawaii. The cause of her death was determined to be by strangulation.

Ms. Drapp was last seen alive by several witnesses at the Hilo Airport at around 8:30 p. m., on December 10, 1978, having problems with her yellow Triumph automobile. Several other witnesses identified appellant being at the airport on December 10, 1978, at about 8:00 p. m. Other witnesses testified that the victim's yellow Triumph automobile was seen parked in the Fern Forest subdivision at various times, from about 10:00 or 10:30 p. m. on December 10, and at about 5:00 or 6:00 a. m. on December 11.

Michael Free, a fellow inmate in an adjoining cell at the Hawaii County Correctional Facility, testified that he and appellant had talked on three or four separate occasions concerning this incident. Appellant told Free that while at the airport, trying to make partial payment on a plane ticket for his girl friend, he (appellant) saw Mary Drapp apparently having car trouble. Appellant further stated that later that evening, he had sex with Ms. Drapp. These conversations also revealed that at some point in the evening, appellant listened for a heartbeat from a body in the field. It was Free's impression that appellant was with the victim's body before 5:00 a. m. on the morning of December 11, 1978. In addition, appellant stated to Free that previously he had met Mary Drapp in a health food store where he "attempted to put the make on her." In other words, appellant wanted to take her out, but she declined.

A knife, which was very similar to one owned by appellant was found in the area where the victim's body was found. Moreover, a pair of panties with a seminal stain matching the blood group of appellant was found near the body. Also, a beach towel belonging to Mary Drapp was recovered from appellant's residence and was found to have seminal stains and pubic hair matching those of appellant.

Appellant then presented evidence, through the testimony of Denise Drake, regarding the events of December 10 and 11, 1978. Appellant had told Drake that while at the airport, he helped a young lady fix her car. They left the airport together and appellant was given a ride home to Fern Forest. They then engaged in sexual intercourse. According to Drake, the knife, which was found near the body, was given to Drapp as a memento by appellant. Drapp left appellant's residence at about 12:00 midnight. Sometime the following morning, appellant discovered the victim's body in the field but did not report it because he was a parole violator.

The State presented rebuttal evidence showing the bad road conditions in Fern Forest and the low clearance to the ground of the victim's car. Thus, it was the prosecution's theory that it was unlikely that Drapp ever reached appellant's house within the time frame given.

After numerous pre-trial motions were disposed of, trial commenced. At the close of the State's opening statement, appellant moved for judgment of acquittal, arguing that the prosecutor had not shown that he produced sufficient evidence to convict appellant. That motion was denied by the trial court.

After the State presented its case in chief, appellant again moved for judgment of acquittal, asserting that there was insufficient evidence to connect appellant with the alleged crime. This motion was also denied. Then after all the evidence was presented, appellant renewed his motion for judgment of acquittal, which was also denied. The jury then found appellant guilty as charged. After being sentenced to life imprisonment, appellant brings this appeal.

I.

Appellant's first contention is that the instant indictment was defective by the absence of the independent grand jury counsel created by Article I, Section 11 of the Hawaii State Constitution.

Appellant was indicted by the Hawaii County Grand Jury on July 27, 1979. At that time, the independent counsel had not been appointed and was not present during the proceeding because legislation implementing this constitutional amendment had not been enacted. Then, on November 16, 1979, appellant filed a motion to dismiss the indictment by the failure to appoint the independent grand jury counsel. That motion was denied.

The facts of this case are similar to that found in State v. Rodrigues, 63 Haw. 412, 629 P.2d 1111 (1981). In Rodrigues, supra, a defendant was indicted prior to the enactment of Act 209, S.L.H. 1980, ² which implemented Article I, Section 11 of the Hawaii Constitution. We held that Article I, Section 11 of the Hawaii Constitution was not self-executing upon approval of the voters and that subsequent legislation was necessary to make its provisions operative. Moreover, we found that the accused has the burden of establishing prejudice by the absence of the independent grand jury counsel. Finding that prejudice was not established by the record, we affirmed the trial court's denial of the defendant's motion to dismiss.

We find Rodrigues to be dispositive of this issue. ³ The record does not reflect and appellant has made no showing of prejudice by the failure to appoint or by the absence of the independent grand jury counsel. Thus, given that appellant was indicted prior to the enactment of Act 209, the instant indictment was not defective by the failure to appoint or by the absence of the independent grand jury counsel. State v. Rodrigues, supra; State v. Kahlbaun, 64 Haw. ---, 638 P.2d 309 (1981). The trial court properly denied appellant's motion to dismiss.

II.

Appellant's next contention is that the trial court erred in not granting his motion for judgment of acquittal at the close of the State's opening statement. Appellant asserts that the State's opening statement did not establish a prima facie case of murder.

This Court has never decided this question before. ⁴ An examination of other cases in other jurisdictions reveals a split of authority on this point of law. See Annot., 75 A.L.R.3d 649 (1977).

Some courts have refused to entertain a motion for judgment of acquittal at the close of the prosecution's opening statement. Their reasoning is that no provision in the law permits such a motion at that juncture and that there is no requirement that an opening statement set out facts sufficient to establish a prima facie case. See White v. State, 11 Md.App. 423, 274 A.2d 671 (1971); People v. Kerrick, 86 Cal.App. 542, 261 P. 756 (1927); cf. State v. McElroy, 71 R.I. 379, 46 A.2d 397 (1946) (must wait for evidence to determine if at variance with opening statement).

The majority of jurisdictions have permitted a trial judge, under proper conditions, to grant a judgment of acquittal on the basis of the prosecutor's opening statement. United States v. Capocci, 433 F.2d 155 (1st Cir. 1970); Hanley v. United States, 416 F.2d 1160 (5th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970); In re United States, 286 F.2d 556, 562 (1st Cir. 1961), rev'd on other grounds sub nom. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Webb v. United States, 191 F.2d 512 (10th Cir. 1951); McGuire v. United States, 152 F.2d 577 (8th Cir. 1945); Rose v. United States, 149 F.2d 755 (9th Cir. 1945); United States v. Dietrich, 126 F. 676 (8th Cir. 1904); United States v. Maryland Coop. Milk Producers, Inc., 145 F.Supp. 151 (D.D.C.1956); People v. Gomez, 131 Colo. 576, 283 P.2d 949 (1955); see generally Annot. 75 A.L.R.3d 649 (1977); 2 C. Wright, Federal Practice and Procedure, Criminal, § 462 (1969 and 1981 Supp.). Although the trial court has this authority, in practice, a ...