State v. Temple, 7045

• Decision Date: 13 September 1982
• Docket Number: No. 7045,7045
• Citation: 65 Haw. 261,650 P.2d 1358
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Mark S. TEMPLE, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1358

650 P.2d 1358

65 Haw. 261

STATE of Hawaii, Plaintiff-Appellee, v. Mark S. TEMPLE, Defendant-Appellant.

No. 7045.

Supreme Court of Hawai'i.

Sept. 13, 1982.

Syllabus by the Court

1. Theft, as defined in HRS § 708-830(8), may be accomplished by either the receipt, retention, or disposal of stolen property, for each act in itself is consistent with an intent to deprive another of his property.

2. The inclusion of the term "retain" in HRS § 708-830(8) connotes a clear legislative design to make an aspect of theft a continuing crime.

3. An indictment charging that the defendant "did intentionally receive, retain or dispose of" a stolen firearm alleges involvement in a continuing course of illegal conduct.

4. Since a legislative purpose to prohibit a continuing course of conduct plainly appears in HRS § 708-830(8), an offense charging retention of a stolen firearm was committed when such retention terminated.

5. Whenever a police officer accosts an individual and restrains his freedom to walk away, the officer has seized that person.

6. It is not always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest, as there is a need for law enforcement officers to protect themselves and other victims of violence in situations where they may lack probable cause for an arrest.

7. A forcible stop of a person suspected of criminal activity may be predicated upon an informer's word, provided the information supplied by the informer carries sufficient indicia of reliability.

8. A law enforcement officer cannot use unreliable, unsubstantiated, conclusory hearsay to justify an invasion of an individual's liberty.

9. An illegal seizure fatally taints all of the police actions that follow it, and evidence obtained as a result of the seizure is subject to exclusion from trial.

Thomas Wong, Deputy Public Defender, Honolulu (Roy T. Ogawa and Bruce A. Masunaga, Deputy Public Defenders, Honolulu, on opening brief), for defendant-appellant.

Arthur E. Ross, Deputy Prosecuting Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., NAKAMURA, J., MARUMOTO, Retired Justice, in place of LUM, J., excused, and OGATA and MENOR, Retired Justices, Assigned Temporarily.

NAKAMURA, Justice.

Defendant-appellant Mark S. Temple (defendant) was convicted after a jury trial in the Circuit Court of the First Circuit of having possessed or carried a loaded firearm on a public highway in violation of HRS § 134-6 and of having committed a theft of a firearm in violation of HRS § 708-831(1)(c). The State concedes the trial court committed reversible error by not compelling further deliberation by the jury or not declaring a mistrial when a juror gave an equivocal response during a poll of the jury by defense counsel on whether the verdict returned on Count II of the indictment was consistent with the finding of each of the jurors. ¹ But there are other issues posed by defendant's appeal, and these are whether the statute of limitations on the latter offense had run prior to the indictment and whether the firearm seized from an automobile driven by the defendant and the statements obtained from him subsequent to the seizure should have been suppressed as evidence. We conclude the trial court properly denied the motion to dismiss the second count of the indictment, but erred when it denied the motion to suppress. We therefore reverse the conviction and the order denying the motion to suppress and remand the case for proceedings not inconsistent with this opinion.

I.

The two-count indictment against the defendant ² was premised on the discovery of a loaded handgun in the glove compartment of a motor vehicle being driven by him following a "stop" of the vehicle by the police at about 9:00 p. m. on August 12, 1977. Earlier that day, an unidentified person called the Wahiawa Police Station and informed the police that she had seen a handgun in the glove compartment of a black Chevrolet, license number 7A-8909, parked at 102-E Kilea Place in Wahiawa. The unknown informant further volunteered that the automobile was owned by one Mark Temple. ³

The foregoing information was given to Officer Robert Miyasato of the station's Plainclothes Detail when he reported for duty at 7:30 p. m. He in turn related the information to Officers Gene Muller and Thomas Vierra, also members of the same unit. The three of them then proceeded to the vicinity of 102-E Kilea Place. Muller and Vierra drove past the foregoing address to verify the presence of the black Chevrolet while Miyasato waited in a nearby parking lot that fronted on California Avenue. After noting the presence of the vehicle at the Kilea Place address, Muller and Vierra drove to the parking lot where Miyasato was waiting. While they were in the process of reporting the above fact to him, Miyasato observed a black Chevrolet turning from Kilea Place into California Avenue and proceeding toward Waianae. He immediately gave chase and caught up with the vehicle while it was still on California Avenue.

Officer Miyasato caused the black Chevrolet to slow down and pull into a parking lot on California Avenue by using the siren and the grill lights on his vehicle. When the other car came to a stop, the officer alighted from his car and approached the other vehicle on the driver's side, identified himself to its occupants (the defendant and a female passenger), and ordered them to step out. After they had complied with the order, the defendant was informed of the reason for the stop and asked whether he had a handgun. When he denied he was carrying a firearm, the officer told the defendant that he (the officer) had been aware for some time that there was a handgun in the glove compartment because he had acquired the information earlier from "a very reliable source". When the officer again inquired whether there was a handgun in the compartment, the defendant admitted there was. By this time, Officers Muller and Vierra had arrived on the scene in their vehicles.

Upon securing the foregoing admission, Officer Miyasato opened the glove compartment of the black Chevrolet, seized a loaded .22 caliber pistol therefrom, and thereupon arrested the defendant for violating HRS § 134-6, Place to keep firearms. Officers Miyasato and Vierra then proceeded to conduct a thorough search of the car's interior and trunk, finding a set of license plates in the process. In the meanwhile, the defendant was transported to the police station by Officer Muller.

The subsequent search of the defendant's person at the station resulted in the seizure of eight rounds of .22 caliber ammunition. And a computer check of the seized firearm's serial number against the records of the police department revealed it had been stolen from the residence of its owner on December 13, 1974. The defendant was only then apprised of his constitutional rights, particularly those described in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he was subjected to further interrogation by a detective. A signed statement containing an admission that the firearm had been purchased three to four years earlier from a juvenile with knowledge that it had been stolen was obtained from the defendant. He further admitted therein that he had placed the handgun in the glove compartment of the black Chevrolet.

Following indictment by the grand jury, the defendant sought to have the statement as well as all other evidence obtained after the stop of the vehicle excluded from trial. He averred there was no valid basis for a stop and as a consequence all of the evidence was tainted and subject to suppression. He also sought to have the theft count dismissed on the ground that the period within which he could have been charged with the offense expired prior to the indictment. All of the motions, however, were denied, and the case proceeded to trial before a jury. The defendant was adjudged guilty on both counts after guilty verdicts were returned by the jury. His timely appeal to this court followed.

The dispositive question on the issue related to the statute of limitations is whether the crime charged here, theft of a firearm in violation of HRS § 708-831, ⁴ was a continuing offense, and the dispositive question on the suppression issue is whether there were reasonable grounds for stopping and detaining the defendant while he was operating a motor vehicle on a public highway.

II.

We initially address the defendant's claim that his prosecution for the alleged theft of a firearm is barred by the three-year statute of limitations applicable to the offense, a class C felony. See HRS § 701-108.

Although the indictment in this case was filed within six months of his arrest on August 12, 1977, the defendant nevertheless argues the prosecution came too late. The evidence in the case, he says, establishes that the offense was committed more than three years prior to the filing of the indictment on January 11, 1978. To be sure, the record indicates the weapon was stolen from the residence of its owner on December 13, 1974 and the defendant admitted purchasing it some three or four years before the arrest. Claiming this shows that every element of a theft, as defined by HRS § 708-830(8), occurred when the stolen firearm was "received and retained", the defendant asserts the State failed to prove the prosecution was commenced in time. We do not find the argument convincing, for the crime set forth in Count II of the indictment was a continuing offense that terminated only when the weapon was seized from the glove compartment.

Though HRS § 708-830(8) is entitled "Receiving stolen property", its proscriptions are broader than its heading. A person commits an offense defined therein if he "intentionally receives, retains, or disposes of the property of another, knowing that it has been stolen, with intent to deprive the owner of the...