State v. Torres

• Decision Date: 15 December 2009
• Docket Number: No. 28583.,28583.
• Citation: 222 P.3d 409,122 Haw. 2
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Jenaro TORRES, Defendant-Appellant.
• Court: Hawaii Court of Appeals

222 P.3d 409

122 Haw. 2

STATE of Hawai`i, Plaintiff-Appellee, v. Jenaro TORRES, Defendant-Appellant.

No. 28583.

Intermediate Court of Appeals of Hawai`i.

December 15, 2009.

As Amended on Reconsideration January 4 and 7, 2010.

Cynthia A. Kagiwada, on the briefs, for defendant-appellant.

Deirdre Marie-Iha, Deputy Solicitor General, on the briefs, for plaintiff-appellee.

NAKAMURA, C.J., FUJISE, and LEONARD, JJ.

Opinion of the Court by NAKAMURA, C.J.

On May 1, 1992, Ruben Gallegos (Gallegos), a nineteen-year-old cashier for the Pearl Harbor Navy Exchange, was seen prematurely leaving his assigned cashier's cage with Defendant-Appellant Jenaro Torres (Torres). There have been no verified sightings of Gallegos since then. His body has never been recovered.

Gallegos's work assignment on May 1, 1992, was to cash paychecks in a satellite cashier's cage on Pearl Harbor Naval Base (PHNB). It was Gallegos's first time working alone in a satellite cashier's cage away from the main cashier's office of the Navy Exchange. That morning, Gallegos was given a canvas bag containing $80,000 in cash and escorted by two PHNB police officers to the satellite cashier's cage. A short time later, Torres, who was a PHNB police officer, appeared at the cashier's cage. Torres was wearing his police uniform, even though he was on leave and not scheduled to work that day. Off-duty PHNB police officers were not allowed to wear their uniforms.

Gallegos, carrying the canvas bag, left the cashier's cage with Torres. Federal law enforcement authorities were notified when Gallegos's absence from the cashier's cage was discovered. Later that afternoon, Torres was apprehended by PHNB police as he drove his car onto PHNB. Federal officials searched Torres's car and found a canvas cashier's bag, approximately $78,000 in cash, a .38 caliber revolver, and a stun gun, along with Gallegos's personal belongings, including his wallet, driver's license, base identification card, and hairbrush.

On May 1, 1992, the federal government filed a complaint, charging Torres and Gallegos with theft and Torres with possession of a loaded firearm on a public highway without a license. An amended complaint was filed ten days later charging only Torres, and not Gallegos. Torres pleaded no contest to federal theft and firearm charges and was sentenced to concurrent terms of two years of imprisonment.

On December 7, 2005, thirteen years after the federal charges were filed, Plaintiff-Appellee State of Hawai`i (State) charged Torres by indictment with the second-degree murder of Gallegos, in violation of Hawaii Revised Statutes (HRS) § 707-701.5 (1993).¹ A jury found Torres guilty as charged and also found, pursuant to a special interrogatory, that Torres had possessed, used, or threatened to use a revolver during the commission of the murder. The Circuit Court of the First Circuit (circuit court) sentenced Torres to a term of life imprisonment, with the possibility of parole, and imposed a mandatory minimum term of fifteen years of imprisonment based on the jury's special interrogatory finding. Torres appeals from the Judgment of Conviction and Sentence entered by the circuit court.²

On appeal, Torres argues that the circuit court erred in: 1) admitting the incriminating statements Torres made to a co-worker because the statements were not adequately corroborated by independent evidence; 2) denying Torres's motions for judgment of acquittal because the prosecution failed to establish the corpus delicti for murder, where no body was ever recovered; 3) denying Torres's motion to suppress evidence seized from his car; 4) precluding the defense from introducing two documents relevant to Torres's defense; 5) permitting a witness to opine that the gun found in Torres's car had been recently fired, "within the same day, probably eight hours or so"; and 6) instructing the jury on circumstantial evidence.

With one notable exception, we disagree with Torres's arguments and reject them. The one exception is Torres's argument that the circuit court erred in permitting a witness to opine that Torres's gun had been recently fired within a specified time frame. We conclude that the circuit court erred in admitting this opinion testimony and that the court's error was not harmless. Accordingly, we vacate Torres's conviction and remand the case for a new trial.

BACKGROUND

I.

Gallegos started working as a cashier at the Pearl Harbor Navy Exchange in December 1991. He was nineteen years old at the time. Gallegos grew up in Texas and came to Hawai`i in August or September 1991 to visit his sister, Blanca Lerma (Lerma), who was in the military. Gallegos decided to stay, and Lerma got permission for Gallegos to live with her family on PHNB. Lerma described Gallegos as a good and responsible person who would let Lerma know where he was at all times.

Lerma testified that she and Gallegos were members of a "close-knit" family of five children and their parents. Lerma and Gallegos would call their parents almost every Sunday, Lerma would see and talk to Gallegos every day, and they "were always together." Lerma did not notice any change in Gallegos's behavior in the days leading up to May 1, 1992. Lerma testified that she and her family have not heard from Gallegos since that date.

On May 1, 1992, Gallegos was assigned to work at the "SUBASE" cashier's cage, a satellite cashier's cage located in Building 693. It was the first time he would be working alone at a satellite location to cash paychecks. Gallegos was described as a quiet, reliable employee. Cashiers would receive advance notice of their assignment to a particular cashier's cage, but this information was not widely disclosed.

Before going to the SUBASE cashier's cage, Gallegos received $80,000 in cash. He placed the money in a standard cash bag along with his wallet and a hairbrush, which he always carried. Gallegos left a set of his personal keys behind at the office.

At around 8:40 a.m., PHNB Police Officer Dennis Crail (Officer Crail) and another officer named Ammons came to escort Gallegos to the SUBASE cashier cage.³ The three arrived at the SUBASE cashier's cage at around 8:50 a.m. Gallegos entered the cage and locked the door behind him. The officers left the building and returned to their office.

Jeanne Chang (Chang), a Navy Exchange employee, was copying documents that morning at a copier in the hallway near the SUBASE cashier's cage. She saw the two officers escort Gallegos to the cashier's cage and the officers leave after Gallegos closed the door. A few minutes later, another PHNB police officer, whom Chang recognized as Torres, walked past Chang toward the cashier's cage. Torres was wearing his police uniform and a utility belt with a handgun in the holster.

Chang saw Torres knock on the door of the cashier's cage and Gallegos come out, carrying the cash bag. The two men walked past Chang down the hallway in a normal manner without saying anything to each other.

Edmund Higa (Higa), a Navy Exchange employee, was taking his break around 9:00 a.m. outside Building 693. Higa saw two men walking toward the parking area, one was wearing a PHNB police uniform and the other was wearing civilian clothing and carrying a bag. The man with the bag smiled at Higa as he walked by.

II.

At about 9:40 a.m., Officer Crail was notified that Navy Exchange security claimed that he had dropped Gallegos off at the wrong place because there was no one at the SUBASE cashier's cage. Officer Crail went to meet with Navy Exchange security at the SUBASE cashier's cage and discovered that Gallegos was gone. Officer Crail asked Chang if she had seen the cashier, and Chang replied that the cashier left about ten minutes after Officer Crail had dropped him off. Chang stated that the cashier had left with a PHNB police officer, and she provided a description of the officer that matched Torres. Chang was taken to the PHNB police office and identified a photograph of Torres as the officer she had seen leaving with Gallegos.

According to Officer Crail, PHNB police officers were not permitted to wear their uniforms unless they were on duty. Torres was not on duty on May 1, 1992. PHNB police officers were also required to turn in their service weapons to the armory at the end of each shift.

Sometime before 11:30 a.m., an all points bulletin was issued to detain and arrest Torres and Gallegos and to be on the lookout for three cars, including a Chevrolet Celebrity owned by Torres. At about 11:30 a.m. on May 1, 1992, PHNB Police Officer Napoleon Aguilar (Officer Aguilar) was standing guard at the Makalapa Gate entrance to PHNB. Officer Aguilar knew Torres and had been informed that Torres had left the cashier's cage with Gallegos and that no one knew where they were.

At about 2:10 p.m., Officer Aguilar saw Torres in a line of cars entering the base. Torres was driving his Chevrolet Celebrity. Officer Aguilar waived Torres through, then motioned for him to stop. Torres rolled down his window and shook Officer Aguilar's hand. Officer Aguilar reached into the car, turned off the ignition, and grabbed the column shifter. Torres swore at Officer Aguilar, struggled with Officer Aguilar, and attempted to push Officer Aguilar's hand away and start the car. Torres continued to struggle and attempt to drive away even after Officer Aguilar told Torres that the Naval Investigative Service⁴ wanted to question Torres about the incident at SUBASE. Eventually, Torres complied with Officer Aguilar's orders to exit the car. Torres was handcuffed and taken to the PHNB police office.

Because Torres's car was blocking traffic, PHNB Police Sergeant James Rozkiewicz (Sergeant Rozkiewicz) moved the car to a nearby parking lot. Sergeant Rozkiewicz checked the interior of the car and the trunk for hazardous or flammable substances and secured the car. While Sergeant Rozkiewicz was attempting to lock the glove compartment, it fell open, revealing a scanner and...