State v. Vincent
| Decision Date | 23 January 1969 |
| Docket Number | No. 4599,4599 |
| Citation | 450 P.2d 996,51 Haw. 40 |
| Parties | STATE of Hawaii v. Joseph Kalua Cantienphylus VINCENT, also known as Joseph Coito Vincent, Jr., and Alfred Clyde Medeiros. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. A trial judge may in his discretion allow a witness to give physical demonstrations and only where he has abused this discretion appellate courts have held such action to be error.
2. Appellants have the burden of showing an abuse of discretion.
3. The trial judge in his discretion may order a psychiatric examination of a witness on the question of credibility when a movant shows a compelling reason for such examination. Mere allegation by the appellants that the key witness had certain physical defects and that he was fabricating his story to get into the limelight was neither sufficient nor compelling ground for such examination. Further, the trial judge granted appellants permission to consult a psychiatrist for one hour at the expense of the State and after such consultation appellants could have shown sufficient justification for a psychiatric examination of witness. However, the record fails to show that counsel for appellants did consult a psychiatrist.
4. A party to an action has no right to object to the failure of a trial judge to warn a witness of his constitutional right against self-incrimination.
Isao Ito, Honolulu, for Vincent.
Richard E. Stifel, Honolulu (Anderson, Wrenn & Jenks, Honolulu, of counsel), for Medeiros.
Ronald T. Y. Moon, Deputy Pros. Atty. , for State of Hawaii.
Before RICHARDSON, C. J., MARUMOTO, ABE, and LEVINSON, JJ., and KING, Circuit Judge, assigned by reason of vacancy.
Defendants-appellants were jointly indicted and tried for murder in the first degree of one Jack Edwin Wadsworth.
John Nunuha, Jr., the key witness had attended a deaf and blind school up to the eighth grade because of his hearing difficulties and wears a hearing aid. It seems that because of his hearing defect, he also experienced a speech deficiency.
When Nunuha began testifying as to the occurrences of the evening of July 24 and early morning of July 25, 1965, counsel for appellants moved that the trial judge advise Nunuha as to his constitutional right against self-incrimination. The court denied the motion stating that in this jurisdiction 'the court does not have to warn a witness that he had a right not to incriminate himself.'
While testifying, Nunuha had difficulty communicating orally and was permitted to demonstrate physically appellants' actions. Counsel for appellants duly objected. The court overruled the objections and permitted the witness to continue his demonstrations.
After trial, the jury returned verdicts of guilty and judgments were entered accordingly. This appeal is from the judgments.
One of the issues is whether the trial judge erred when he permitted Nunuha to demonstrate as to the actions of the appellants.
It is a well-settled principle that a trial judge may in his discretion allow a witness to give physical demonstration and only where he has abused this discretion appellate courts have held such action to be error. Commonwealth v. Barille, 270 Pa. 388, 113 A. 663 (1921); State v. Hunter, 82 S.C. 153, 63 S.E. 685 (1909).
Also, it is general law that on appeal appellants have the burden of showing an abuse of discretion. Kensington Hospital for Women Case, 358 Pa. 458, 58 A.2d 154, 3 A.L.R.2d 73 (1948); Herman & Ben Marks v. Hass, 166 Iowa 340, 147 N.W. 740 (1914); Bolton v. State, 223 Ind. 308, 60 N.E.2d 742, 158 A.L.R. 1057 (1914).
The record shows that after Nunuha had demonstrated, the State requested the court to permit Nunuha to redemonstrate for the purpose of having the demonstration read into the record. Both counsel for the appellants then stipulated to the trial court that on appeal they would not urge as error the failure to have a description of the demonstration noted in the record. Thus there is nothing in the record to show this court that the demonstration tended to prejudice appellants by inflaming the motions of the jury or otherwise. We are, therefore, unable to conclude that the trial court abused its discretion and we must hold that no error was committed.
In another specification of error, it is contended that the trial court erred when it denied appellants' motion to have Nunuha examined by a psychiatrist for the purpose of impeaching his testimony.
We find that there was no error.
We agree with courts of other jurisdictions that a trial judge in his discretion may order a psychiatric examination of a witness on the question of credibility when a movant shows a compelling reason for such...
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83 Hawai'i 308, State v. Buch
...a mental examination of the complaining witness. We review the denial of Buch's motion for an abuse of discretion. See State v. Vincent, 51 Haw. 40, 450 P.2d 996 (1969); State v. Kahinu, 53 Haw. 536, 498 P.2d 635 (1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 944, 35 L.Ed.2d 258 In Vincent, ......
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