State v. Yoshino

• Decision Date: 04 April 1968
• Docket Number: No. 4604,4604
• Citation: 50 Haw. 287,439 P.2d 666
• Parties: STATE of Hawaii v. Richard Toshishige YOSHINO and Pontiano Rapanal, also known as 'Poncho', David Pontiano Libres and David Libres Rapanal.
• Court: Hawaii Supreme Court

Page 666

439 P.2d 666

50 Haw. 287

STATE of Hawaii v. Richard Toshishige YOSHINO and Pontiano Rapanal, also known

as 'Poncho', David Pontiano Libres and David Libres Rapanal.

No. 4604.

Supreme Court of Hawai'i.

April 4, 1968.

Syllabus by the Court

1. As a general rule, questions not properly raised so as to have been considered and ruled upon by the trial judge will not be considered and passed upon for the first time on appeal.

2. An appellate court may consider questions raised for the first time on appeal if necessary to prevent the denial of fundamental rights.

3. Due process of law requires a fair trial before a fair court, and a trial judge should refrain from examining witnesses extensively or making comments which indicate bias.

4. Where the trial judge in the presence of the jury extensively examines the witnesses of defendant, censures them and comments as to their credibility, such conduct of the trial judge may have influenced the jury in its verdict and it violates the requirement of a fair and impartial trial, therefore denies due process of law.

Ernest Y. Yamane, Honolulu (Bicoy & Yamane, Honolulu, of counsel) for defendant-appellant Yoshino.

Hyman M. Greenstein, Honolulu (James G. Jung, Jr., Honolulu, with him on the briefs, Greenstein, Cowan & Carlsmith, Honolulu, of counsel) for defendant-appellant Rapanal.

T. Irving Chang and John A. Radway, Jr., Deputy Pros. Attys., City and County of Honolulu (John H. Peters, Pros. Atty., Honolulu, with them on the brief) for the State, plaintiff-appellee.

Before RICHARDSON, C. J., MIZUHA, MARUMOTO and ABE, JJ., and DOI, Circuit Judge in place of LEVINSON, J., disqualified.

ABE, Justice.

Defendants Richard Toshishige Yoshino and Pontiano Rapanal, also known under several aliases, were indicted of the crime of murder in the first degree for killing Masao Miyagawa on December 29, 1965, at the Hawaii State Prison.

A joint jury trial of both defendants began on August 15, 1966. At the trial it was brought out that prior to the killing of Masao Miyagawa, a stabbing had occurred on the early morning hours of December 29, 1965, and an investigation was started as a suspect appeared to have been under the influence of barbiturates; that while inmates were being called for questioning as to the use of barbiturates, shots were heard in the area of the bathhouse and Miyagawa was seen running out from the bathhouse followed by inmates Yoshino, Walter Watson and Rapanal; that Miyagawa fell and Yoshino, Rapanal and Watson were seen next to the fallen body of Miyagawa; that Rapanal 'shoved an implement into the body'; that both Yoshino and Watson were pointing revolvers at the fallen body; and that shortly thereafter all three left the body, then Yoshino doubled back and fired two shots into the head of Miyagawa.

It further appears that during the trial, defendant Rapanal moved for a separate trial on the ground that his theory of defense differed from the treory of defense of defendant Yoshino. It was brought to the attention of the trial court that he contemplated the defense of self defense and that he wanted certain evidence to be introduced. However, attorney for Yoshino objected to such introduction and the trial court, on the grounds stated by the attorney for Yoshino, refused to admit such evidence. The motion for a separate trial was made several times. However, the trial judge refused to grant the motion on the basis that if he should grant a motion for separate trial and order a mistrial in the face of objection on the part of attorney for Yoshino, it would mean that because of double jeopardy Yoshino would go free.

During the trial Frank Olim, a prison guard, testified that Yoshino told him 'this is our beef; leave us alone.' He also testified that he heard Yoshino telling Rapanal 'good thing you stick with me. That is how we finish our job. I open his eye to make sure his eye was white. That is how I could tell that he was dead.' These two statements were admitted into evidence over the objection of attorney for Rapanal.

The record shows that Rapanal subpoenaed three inmates of the Hawaii State Prison as witnesses. All the witnesses refused to implicate or name persons who were inmates of the Hawaii State Prison at that time. There was no hesitation on the part of the witnesses to name former inmates who were dead. It would seem that the three witnesses refused to name inmates because of fear for their safety.

Upon the refusal of the three witnesses to name other inmates, the trial judge questioned them extensively to elicit from them the names of other inmates; and failing to get the names, the trial judge, in the presence of the jury, censured them for their refusal and also commented on their credibility as witnesses.

The jury after due deliberation returned a verdict finding both defendants Yoshino and Rapanal guilty of murder in the first degree and the trial judge entered judgment accordingly. Both defendants appealed from this judgment.

I. As to defendant Yoshino:

Yoshino alleges three errors in his specifications of error.

The first specification is that the trial judge's conduct in questioning and censuring the three witnesses called by Rapanal was prejudicial error.

The State contends that as no objection was made at the time the questions were posed or to the comments made by the trial judge, this court should not consider the issue.

The nature of appellate review is well recognized in Hawaii and it is established by statute, ¹ rule ² and decision in criminal as well as civil proceedings that issues not properly raised in the lower court and which have not been considered and passed upon by the trial judge will not be considered and passed upon for the first time on appeal. State v. Cummings, 49 Haw. 522, 423 P.2d 438 (1967); State v. Shon, 47 Haw. 158, 385 P.2d 830 (1963); State v. Arena, 46 Haw. 315, 179 P.2d 594 (1963); State v. Pokini, 45 Haw. 295, 367 P.2d 499 (1961); Territory v. Tsutsui, 39 Haw. 287 (1952); Territory v. Santana, 37 Haw. 586 (1947); Territory v. Chong, 36 Haw. 537 (1943); Territory v. Gagarin, 36 Haw. 1 (1941).

However, this specification raises the constitutional issue of due process of law. We have stated in numerous cases that where fundamental constitutional rights are involved, this court will take cognizance of the issue though it is raised in this court for the first time. H.R.Cr.P., Rule 52(b); State v. Cummings, supra; State v. Ruiz, 49 Haw. 504, 421 P.2d 305 (1966).

Further, under the...