State v. Vanstory

• Decision Date: 30 June 1999
• Docket Number: No. 21630.,21630.
• Citation: State v. Vanstory, 979 P.2d 1059, 91 Haw. 33 (Haw. 1999)
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Chad Everett VANSTORY aka Viking, Defendant-Appellant.
• Court: Hawaii Supreme Court

979 P.2d 1059

91 Haw. 33

91 Hawai`i 33

STATE of Hawai`i, Plaintiff-Appellee, v. Chad Everett VANSTORY aka Viking, Defendant-Appellant.

No. 21630.

Supreme Court of Hawai`i.

June 30, 1999.

Keith S. Shigetomi, on the briefs, for defendant-appellant.

Simone C. Polak, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.

Opinion of the Court by RAMIL, J.

Defendant-appellant Chad Everrett Vanstory appeals his guilty convictions of and sentences for (1) robbery in the first degree in violation of Hawai`i Revised Statutes (HRS) § 708-840 (1993), (2) carrying or use of firearm in the commission of a separate felony in violation of HRS § 134-6(a) (Supp. 1994), (3) felon in possession of a firearm in violation of HRS § 134-7(b) (Supp.1994), and (4) felon in possession of firearm ammunition in violation of HRS § 134-7(b) (Supp.1994). Vanstory contends that: (1) the trial court's failure to define semiautomatic firearm warrants reversal of his convictions; and (2) the sentencing court erroneously imposed a mandatory minimum term of imprisonment on the basis of semiautomatic weapon in derogation of Garringer v. State, 80 Hawai`i 327, 909 P.2d 1142 (1996). Additionally, the prosecution concedes that Vanstory's conviction of carrying or use of firearm in the commission of a separate felony, under HRS § 134-6(a), must be reversed pursuant to State v. Jumila, 87 Hawai`i 1, 950 P.2d 1201 (1998).

Although the trial court failed to instruct the jury on the definition of "semiautomatic firearm," this failure did not affect prejudicially Vanstory's guilty convictions under HRS §§ 708-840, 134-6(a), or 134-7(b). However, the failure requires this court to vacate the imposition of the mandatory minimum sentence. We agree with the prosecution that Jumila is implicated; however, we must reverse Vanstory's conviction under HRS § 708-840. Finally, we affirm Vanstory's conviction of felon in possession of firearm ammunition under HRS § 134-7(b).

Pursuant to the procedure established in Garringer v. State, 80 Hawai`i 327, 909 P.2d 1142 (1996), we will withhold judgment on Vanstory's convictions under HRS §§ 134-6(a) and 134-7(b) for thirty days. If the prosecution, within that time, consents to resentencing without the mandatory minimum for the use of a semiautomatic under HRS § 706-660.1(3), we will affirm the convictions and remand for resentencing. If the prosecution does not consent, we will vacate the convictions under HRS §§ 134-6(a) and 134-7(b) and remand for retrial.

I. BACKGROUND

On December 31, 1996, at approximately 12:50 p.m., two individuals robbed the Bank of Hawaii, Kahana Branch, on Maui. Remy Phanphongsa, a senior teller, witnessed a person in all black, with a mask, jump over the counter, take money from her drawer, check other areas behind the counter, and leave. Meanwhile, another person, wearing a hooded, "white" sweater or sweatshirt and a mask, was holding a gun, standing by the entrance, and demanding that everyone get down.

Ann Neizman, the service manager of the bank, was in the bank's lunch room when she heard loud noises. She came out of the lunch room and saw a person with a "gray," hooded sweatshirt pointing a gun at her and saying, "Get down on the floor now." Neizman testified that another person in black ran from behind the teller's counter. According to Neizman, $19,000.00 was taken. Another teller, Virgincita Vicklun, testified that a person in black jumped over her counter and took money from her drawer, while the person in the "white" sweatshirt pointed a gun and cursed. Vicklun testified that the gun was a revolver, but later conceded that she did not know much about handguns.

Michael Monett, a bank customer, heard someone yell, "Get down on the ground." Monett turned and saw a person dressed in "white" with a mask. According to Monett, the person was pointing a small semiautomatic pistol towards him. Monett also testified that he knew the difference between a semiautomatic weapon and a revolver.

According to several witnesses, the two men ran from the bank and towards Roy's Restaurant near the Royal Kahana. Valmine Lincoln, an employee of Maui Disposal, was picking up refuse at the Royal Kahana. He saw two joggers, one in black sweats and the other in a white sweatshirt with black sweat-pants, exiting from the parking entrance. The two men returned approximately five minutes later. Lincoln did not see the face of the man in black, but he witnessed the man in black removing surgical gloves. The man in white had short, blonde hair and wore a silver stud in his tongue and rings in his nose. The men drove away in a black Nissan Sentra. Casey Kauai, also working for Maui Disposal, saw two men walk from the parking lot, return shortly thereafter, and leave in a black Nissan Sentra. Kauai did not see their faces.

Max Kincaid, a detective with the Maui Police Department (MPD), was assigned to investigate the Kahana branch robbery. Because none of the many witnesses got a clear look at the robbers' faces, the case remained unsolved until a suspect, Scott Tempkins, was picked up in connection with a jewelry store robbery on August 5, 1997. Tempkins cooperated in the jewelry store robbery investigation by giving the police names of other people involved. Although Tempkins was not a suspect for the Kahana branch robbery, Tempkins also informed the police, on August 17, 1997, about the Kahana branch robbery and implicated himself, Norman Kaui, and Vanstory.¹ Pursuant to a search warrant executed on August 22, 1997, Detective Kincaid searched the Highway 30 Tattoo Parlor, which Vanstory owns. Karl Freitas, an MPD detective, searched Vanstory's home. Detective Kincaid recovered evidence of Vanstory's relationship with Tempkins, and Detective Freitas recovered two rounds of .45 caliber ammunition and two spent shells of .38 caliber ammunition in a hallway closet in Vanstory's home.

Detective Kincaid contacted Lincoln and Casey Kauai for a lineup. Lincoln identified Vanstory as the man wearing the white sweatshirt. Kauai explained that he saw three men, two Caucasians and one "Oriental." At trial, Lincoln identified Vanstory as the man wearing the white sweatshirt. He also recognized a photo of a Nissan Sentra, registered to Debbie Steerman (Vanstory's then fiancé), as the car that he saw.

According to Tempkins, he planned the robbery with Norman Kaui, and, approximately two weeks before December 31, 1996, Tempkins discussed the robbery with Vanstory. The day of December 31, 1996 was chosen as the robbery date because Vanstory was getting married on that day and Tempkins was leaving on a trip two days later, providing good alibis for both Vanstory and Tempkins. The night before the robbery, Vanstory and Tempkins drove over the planned route and decided that they would call in a bomb threat to Cannery Mall as a diversion for the police.

According to Tempkins, he picked up Vanstory at the home of Vanstory and Debbie Steerman (Debbie), just before noon on the day of the wedding. Tempkins testified that he saw several people in the house preparing for the wedding. According to Tempkins, Vanstory loaded a .32 caliber automatic gun. Tempkins put on black pants and a black sweatshirt; Vanstory put on a white sweatshirt. They left the house in Debbie's black Nissan Sentra. They stopped to call in the bomb threat and proceeded to park at the Royal Kahana. The two men left the Kahana on foot, passed a couple of garbage men, and made their way to the bank. According to Tempkins, at the bank, Vanstory yelled, "This is a stick up. Everybody hit the ... floor." Meanwhile, Tempkins "jumped over the counter to his left and began emptying tills." When Vanstory indicated that it was time to go, the two men left the bank and ran back to the Kahana garage. Vanstory and Tempkins sped away in Debbie's Nissan Sentra, and they returned to Vanstory's house and divided the money. Tempkins buried some of the money and gave $1,000 to Kaui. Vanstory got married that afternoon.

Apparently because of the counts of felon and/or fugitive in possession of firearm and/or firearm ammunition contained in Cr. No. 97-0706, Vanstory stipulated on March 24, 1998, as a part of his trial strategy, to having been convicted of felonies in the states of Maryland and Tennessee and to being a fugitive from justice in the state of Delaware.

Debbie testified that she used her mother's van on the day of the wedding, while Vanstory used her black Nissan Sentra. Several witnesses testified that Vanstory had a stud in his tongue at the time of the wedding. Vanstory and several witnesses called by Vanstory testified that Vanstory was never out of sight for very long on the day of the wedding, because of wedding day preparations. Vanstory denied involvement in the robbery and explained that he had no knowledge of the ammunition in his hallway closet, postulating that it could be one of his two or three other roommates' ammunition.

A. The Indictments

On August 22, 1997, the Maui grand jury returned a two-count indictment, in Cr. No. 97-0515(1), charging Vanstory as follows:

COUNT ONE:

That on or about the 31st day of December, 1996, in the County of Maui, State of Hawaii, Chad Everett Vanstory, also known as "VIKING", SCOTT TEMPKINS, and NORMAN KAUI, as principals and/or accomplices, in the course of committing theft and being armed with a dangerous instrument, to wit, a semi-automatic pistol, did threaten 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, thereby committing the offense of Robbery in the First Degree in violation of Section 708-840 (1993), Hawai`i Revised Statutes.

COUNT TWO:

That on or about the 31st day of December, 1996, in the County of Maui, State of Hawaii, CHAD EVERETT VANSTORY, also known as "VIKING", did knowingly carry on his person or have within his

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