State v. Sugimoto

• Decision Date: 11 July 1980
• Docket Number: No. 7187,7187
• Citation: 614 P.2d 386,62 Haw. 259
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Jules Yoshimitsu SUGIMOTO, Defendant-Appellant, and Ashley Alexander Ancheta and Rodney Kawehikulani Kahao, Defendants.
• Court: Hawaii Supreme Court

Page 386

614 P.2d 386

62 Haw. 259

STATE of Hawaii, Plaintiff-Appellee, v. Jules Yoshimitsu SUGIMOTO, Defendant-Appellant, and Ashley Alexander Ancheta and Rodney Kawehikulani Kahao, Defendants.

No. 7187.

Supreme Court of Hawai'i.

July 11, 1980.

Syllabus by the Court

1. The prosecuting attorney's failure to provide a complete witness list prior to trial will not cause a mistrial unless the trial court determines that the defendant has been surprised and prejudiced. Rule 16, HRPP.

2. Immunity is properly granted to a witness when (1) it is likely that he will assert his privilege against self-incrimination and (2) his testimony is necessary to the public interest. HRS § 621C-2 (1971).

3. A witness may not be cross-examined as to his involvement with drugs solely to show that he is unreliable or lacks veracity.

4. A deferred acceptance of guilty (DAG) plea is not a conviction and may not be used for impeachment purposes.

5. The fact that defendant, who at the time was not a suspect in a criminal investigation, was interviewed at the police station is but one factor in determining whether he was in custody for Miranda purposes.

6. Hearsay is an out of court statement offered to show the truth of the matter asserted.

7. A trial court has broad discretion in deciding whether to admit demonstrative evidence where the object possesses unique and readily identifiable characteristics and the substance composing the item is relatively impervious to change.

8. Alleged instances of prosecutorial misconduct are not grounds for reversal unless they prejudiced the defendant so as to deny him a fair trial.

9. A court may instruct on an offense not specifically charged in the indictment only when it is a lesser included offense of the original charge.

Richard Turbin, Honolulu, for defendant-appellant.

Wesley T. Kan, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA, MENOR and LUM, JJ., and MARUMOTO, Retired Justice, assigned by reason of vacancy.

OGATA, Justice.

Jules Sugimoto, hereinafter defendant-appellant, has appealed from convictions of robbery, burglary, and rape. For the reasons set out below, we affirm the judgment of the trial court.

In June 1977, Rebecca Chang, Mary Wong, James Tam, and Irene Freitas were robbed at gunpoint at the home of the first three persons. Personal property and cash were taken from all of the victims. James Tam was directed to write a check for cash in the amount of one thousand dollars. After two of the assailants left the house, Mrs. Freitas, while blindfolded, was raped by the remaining intruder.

On October 5, 1977, the defendant-appellant, Ashley Ancheta, and Rodney Kahao were indicted on four counts of robbery in the first degree and one count of burglary in the first degree. Also, the defendant-appellant was charged with rape in the first degree. Ashley Ancheta pleaded guilty to three counts of robbery. All the charges against Rodney Kahao were dismissed pursuant to an immunity agreement between him and the state. Kahao later testified as a prosecution witness against the defendant-appellant.

On September 14, 1978, the defendant-appellant was found guilty by a jury of three counts of robbery in the first degree, one count of robbery in the second degree, one count of burglary in the first degree, and one count of rape in the first degree. The instant appeal followed. The defendant-appellant presents the following contentions:

I. The trial court improperly allowed two unlisted witnesses to testify for the state.

II. The trial court erred by granting immunity to one of the prosecution witnesses.

III. The defendant-appellant's cross-examination of a prosecution witness was improperly limited by the trial court.

IV. The trial court erred when it allowed certain statements made by the defendant-appellant without the benefit of Miranda warnings into evidence.

VI. Demonstrative evidence for which a complete chain of custody had not been established should not have been admitted by the trial court.

VIII. The trial court erred when it instructed the jury.

I.

The defendant-appellant alleges that the trial court erred by allowing his co-defendants, Rodney Kahao and Ashley Ancheta, to testify as witnesses for the prosecution. Counsel for the defendant-appellant was not formally notified that the State would call Kahao and Ancheta until the morning of the trial. Defense counsel argued that the failure to list Kahao and Ancheta as prosecution witnesses violated Rule 16, Hawaii Rules of Penal Procedure, and moved for a mistrial. The trial court denied the motion and allowed the trial to continue.

Rule 16, Hawaii Rules of Penal Procedure, states in pertinent part:

(b) Disclosure by the Prosecution.

(1) Disclosure Upon Written Request of Matters Within Prosecution's Possession. Upon written request of defense counsel, the prosecutor shall disclose to him the following material and information within the prosecutor's possession or control:

(i) the names and last known addresses of persons whom the prosecutor intends to call as witnesses . . . .

The prosecuting attorney did fail to notify the defense attorney that the co-defendants would testify in violation of this rule. However, violation of Rule 16 does not warrant an immediate declaration of a mistrial by the trial court. The rule provides that where a party fails to comply with its terms "the court may order such party to permit the discovery, grant a continuance, or it may enter such other order as it deems just under the circumstances." Rule 16(e)(8)(i), HRPP (emphasis added).

We hold that the trial court did not err in its approach to the problem of the unlisted prosecution witnesses. The trial judge fully inquired into the circumstances surrounding the calling of Kahao and Ancheta. See Smith v. State, 319 So.2d 14, 17 (Fla.1975); Bradford v. State, 278 So.2d 624, 625 (Fla.1973). The court also made every effort to allow the defense attorney to interview the unlisted witnesses. ¹ In this way the court below insured that the defendant-appellant was not surprised or prejudiced by the testimony of the two witnesses. See Gibson v. State, 252 Ark. 988 992-93, 482 S.W.2d 98, 101 (1972); People v. Heller, 131 Ill.App.2d 799, 804, 267 N.E.2d 685, 689-90 (1971); Lund v. State, 264 Ind. 428, 345 N.E.2d 826, 829 (1976); State v. Sevcik, 239 N.W.2d 571, 573 (Iowa 1976); Irby v. State, 60 Wis.2d 311, 321, 210 N.W.2d 755, 761 (1973). The court below acted properly in accordance with Rule 16, HRPP.

II.

Contrary to defendant-appellant's assertion, the court below did not err by granting immunity to Rodney Kahao so that he would testify against the defendant-appellant. The witness immunity statute in effect at the time of the trial stated in relevant part:

The direction to the witness to testify or produce other information shall be issued by the court upon application therefor by the state. The application may be made whenever, in the judgment of the state, the witness has asserted or is likely to assert his privilege against self-incrimination and his testimony or other information is or will be necessary to the public interest.

HRS § 621C-2 (1971). The requirements of the statute were satisfied in this case. It is clear from the record that the trial judge determined that Kahao was likely to assert his privilege against self-incrimination if he was called as a prosecution witness and that Kahao's testimony was necessary to the public interest. Immunity therefore properly was granted to Rodney Kahao.

III.

The defendant-appellant contends that the court below erred in restricting his attempts to cross-examine Rodney Kahao for impeachment purposes. Counsel for the defendant-appellant sought to question Kahao about his involvement with the use and sale of marijuana and about his prior criminal record.

The defendant-appellant attempted to impeach Kahao's credibility by cross-examining him about his general use of marijuana and possible involvement in the sale of marijuana. A witness may not be questioned as to his involvement with drugs solely to show that he is unreliable or lacks veracity. Morrell v. State, 575 P.2d 1200, 1204 (Alaska 1978); Fields v. State, 487 P.2d 831, 844 (Alaska 1971); People v. Buono, 191 Cal.App.2d 203, 233, 12 Cal.Rptr. 604, 621 (1961); People v. Steele, 193 Colo. 87, 94, 563 P.2d 6, 11 (1977); Garcia v. State, 240 Ga. 796, 801, 242 S.E.2d 588, 592 (1978); State v. Belote, 213 Kan. 291, 295-96, 516 P.2d 159, 163 (1973); State v. Dault, 19 Wash.App. 709, 719, 578 P.2d 43, 49 (1978); see generally McCormick's Handbook of the Law of Evidence § 45, at 94-95 (2d ed. 1972). The trial court did not abuse its discretion in restricting the defendant-appellant's cross-examination of Kahao. Kekua v. Kaiser Foundation Hospital, 61 Haw. 208, 221, 601 P.2d 364, 373 (1979); People v. Steele, supra; Garcia v. State, supra; State v. Belote, supra.

Counsel for the defendant-appellant also attempted to impeach Kahao by showing that he had made a deferred acceptance of guilty (DAG) plea in a prior criminal case. While a prior conviction which is relevant to the witness's truth and veracity may be used for impeachment purposes, Asato v. Furtado, 52 Haw. 284, 293, 474 P.2d 288, 295 (1970), a DAG plea is not a conviction and may not be so used. HRS § 853-1(d) (1976). ² The court below acted correctly in preventing the cross-examination of Kahao as to his prior DAG plea.

IV.

The defendant-appellant asserts that the trial court erred in admitting his June 4 statement to the police detective into evidence because the detective did not inform him of his rights to remain silent and to have an attorney present. Defendant-appellant maintains that when questioning of a person occurs at a police station, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) requires that these procedural safeguards be provided to him. ³ We disagree.

The requirements delineated in Mira...