State v. Tuua, 8022

• Decision Date: 30 August 1982
• Docket Number: No. 8022,8022
• Citation: 649 P.2d 1180,3 Haw.App. 287
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Solonu'u TUUA, also known as Tapelu Tuua, Solonu's Pusi, and Tapela, Defendant-Appellant, and Ilupeli Pusi, also known as Ioane Tua, Defendant.
• Court: Hawaii Court of Appeals

Page 1180

649 P.2d 1180

3 Haw.App. 287

STATE of Hawaii, Plaintiff-Appellee, v. Solonu'u TUUA, also known as Tapelu Tuua, Solonu's Pusi, and Tapela, Defendant-Appellant, and Ilupeli Pusi, also known as Ioane Tua, Defendant.

No. 8022.

Intermediate Court of Appeals of Hawai'i.

Aug. 30, 1982.

Reconsideration Denied Sept. 17, 1982.

Certiorari Denied Oct. 6, 1982.

Syllabus by the Court

1. When defendant challenges the admissibility of eyewitness identification on grounds of impermissibly suggestive pretrial identification procedure, he or she has the burden of proof, and the court, trial or appellate, is faced with two questions: (1) Whether the procedure was impermissibly or unnecessarily suggestive; and (2) If so, whether, upon viewing the totality of circumstances, such as opportunity to view at the time of the crime, the degree of attention, the accuracy of prior description, the level of certainty, and the elapsed time, the witness' identification is deemed sufficiently reliable so that it is worthy of presentation to and consideration by the jury.

2. A trial court's decision that a pretrial identification procedure is not impermissibly suggestive involves determinations of fact, and the trial judge's findings on them, whether express or implied, must be affirmed on appeal unless they are clearly erroneous.

3. Under Rule 12(b)(2) of the Hawaii Rules of Penal Procedure (1977), defendant's objection that the indictment fails to charge an offense may be made at any time during the pendency of the proceeding even on appeal.

4. When defendant actually knows what the charges against him are, his sixth amendment rights are satisfied. However, the fifth amendment and Rule 7(c) of the Hawaii Rules of Penal Procedure require the indictment to allege all of the essential elements of the offense charged and that requirement is not satisfied by the fact that the accused actually knew them and was not misled by the failure to sufficiently allege all of them.

5. An indictment alleges all of the essential elements of the offense charged if said elements appear in any form or by fair construction can be found therein.

6. For purposes of the robbery statute (HRS §§ 708-840, 708-841 (1976)), a person is "present" if he might interfere with the theft.

Peter England Roberts, Deputy Public Defender, Honolulu (Alvin T. Sasaki and Patricia A. Loo, Deputy Public Defenders, Honolulu, on the briefs), for defendant-appellant.

Thomas M. Pico, Jr., Deputy Pros. Atty., County of Honolulu, Honolulu, for plaintiff-appellee.

Before BURNS, C. J., HEEN, J., and GREIG, Circuit Judge, assigned by reason of vacancy.

BURNS, Chief Judge.

Defendant-Appellant Solonu'u Tuua (Tuua) appeals his jury conviction of eight counts of Robbery in the First Degree, six in violation of section 708-840(1) (b)(ii) and two in violation of section 708-840(1)(b)(i) of the Hawaii Revised Statutes (HRS), and one count of Murder in violation of section 707-701, HRS.

Tuua presents two points of error:

1. The trial judge erred in denying Tuua's motions to suppress the in-court identifications of Tuua by witnesses Ahmad Rehman and Zbysek Kocur. Tuua contends that both witnesses had participated in an impermissibly suggestive pretrial identification procedure.

2. The eight robbery counts all fail to state an offense and therefore all must be dismissed.

We find no merit in point of error no. 1 or in point of error no. 2 with respect to robbery counts II, III, IV, V, VI, and IX (the threat of force counts) of the indictment. We find merit in point of error no. 2 with respect to robbery counts VII and VIII (the use of force counts).

On February 10, 1978, at about 8:30 p.m., three men entered the Kailan Restaurant on Liliha Street in Honolulu. The first man was armed with a handgun. He emptied the cash register and took property from the patrons in the restaurant. The second man assisted the gunman and the third stood at the door. When the men fled, the restaurant owner and one of his employees pursued them via automobile. During the chase, the restaurant owner was fatally shot.

Kocur and Rehman were Canadian visitors who were at the restaurant during the robbery. At trial in July 1980, each testified that while they had been seated at a restaurant table with Thomas Amarino, they paid careful attention to the gunman who approached the table, demanded money from them, hit Amarino over the head with such force that it bled, and held a gun to Kocur's cheek with such force that the cheek was cut and scarred. Kocur and Rehman each gave descriptions of the gunman to the police that night and left Hawaii the next day. They returned to Hawaii to testify at Tuua's trial. The prosecutor instructed them as to when and where to appear in court. While waiting outside of the courtroom during the jury selection process, Kocur and Rehman saw Tuua exit the courtroom with a guard. Both testified that they immediately recognized Tuua as the gunman. At trial, Tuua moved to suppress their identification of him on the grounds that the pretrial viewing was so impermissively suggestive and conducive to irreparable misidentification under the totality of circumstances that to admit such evidence would be a denial of due process. The trial judge denied the motion. During the trial, in addition to Kocur and Rehman, two other eyewitnesses identified Tuua as the gunman.

POINT OF ERROR NO. 1

When the defendant challenges admissibility of eyewitness identification on the grounds of impermissibly suggestive pretrial identification procedure, he or she has the burden of proof, and the court, trial or appellate, is faced with two questions: (1) Whether the procedure was impermissibly or unnecessarily suggestive; and (2) If so, whether, upon viewing the totality of circumstances, such as opportunity to view at the time of the crime, the degree of attention, the accuracy of prior description, the level of certainty, and the elapsed time, the witness' identification is deemed sufficiently reliable so that it is worthy of presentation to and consideration by the jury. State v. Malani, 59 Haw. 167, 578 P.2d 236 (1978); State v. Mitake, 1 Haw.App. 335, 619 P.2d 1078 (1980).

These two questions involve determinations of fact. The trial judge's findings on them, whether express or implied, must be affirmed on appeal unless they are clearly erroneous. State v. Patterson, 58 Haw. 462, 571 P.2d 745 (1977); 2 Wright, Federal Practice and Procedure: Criminal § 374 (1969). Cf. State v. Green, 51 Haw. 260, 457 P.2d 505 (1969), (dealt with the admissibility of an inculpatory statement and suggests that the standard of review is "clear abuse of discretion," not "clearly erroneous.")

The trial judge did not find any prosecutorial misconduct, nor did he find the procedure unnecessarily or impermissibly suggestive. After considering the totality of circumstances, he determined that the witnesses' identification of Tuua was sufficiently reliable for presentation to the jury. We find nothing clearly erroneous in his factual findings and do not disagree with his legal conclusions.

POINT OF ERROR NO. 2

Tuua next contends that Counts II, III, IV, V, VI, VII, VIII, and IX of the indictment each failed to state an offense and must therefore be dismissed.

This objection was not raised until the case was on appeal. Rule 12(b)(2), Hawaii Rules of Penal Procedure (1977) (HRPP), states that such an objection shall be noticed by the court at any time during the pendency of the proceeding. ¹ Professor Wright says, "The objection is timely though first raised in a motion for new trial, a motion for arrest of judgment, on appeal, or by collateral attack." 1 Wright, Federal Practice and Procedure: Criminal § 193 (1969) (footnotes omitted). The objection being late but timely, we must examine the sufficiency of the threat of force counts, II through VI and IX and of the use of force counts, VII and VIII.

The relevant part of section 708-840, HRS (1976), states:

§ 708-840 Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in the course of committing theft:

(b) He is armed with a dangerous instrument and:

(i) He uses force against the person of the owner or any person present with intent to overcome the owner's physical resistance or physical power of resistance; or

(ii) He threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property. ² (Footnote added.)

Counts II, III, IV, V, VI, and IX (the threat of force counts) of the indictment charge that Tuua,

while in the course of committing theft, and while armed with a dangerous weapon, to wit, a handgun, did threaten the imminent use of force against (person's name) with the intent to compel acquiescence to the taking of or escaping with the property, thereby committing the offense of Robbery in the First Degree in violation of Section 708-840(1)(b)(ii) of the Hawaii Revised Statutes.

Thus, the threat of force counts fail to explicitly allege that the person against whom force was threatened was present.

Counts VII and VIII (the use of force counts) of the indictment charge that Tuua,

while in the course of committing theft, and while armed with a dangerous instrument, to wit, a handgun, did use force against (person's name) with the intent to overcome his physical resistance or physical power of resistance, thereby committing the offense of Robbery in the First Degree in violation of Section 708-840(1)(b)(i) of the Hawaii Revised Statutes.

Thus, the use of force counts fail to explicitly allege that the person whose physical resistance or whose physical power of resistance was intended to be overcome was the owner.

The United States Constitution (amendment VI) and the Constitution of the State of Hawaii (article 1, section 11 (1968)) both specify: "In all criminal prosecutions, the accused shall enjoy the right ......