*1 418 HAWAII, Plaintiff-Appellee
STATE OF FUIAVAILILI ALO, TAPUA Defendant-Appellant
NO. 5746 28, DECEMBER KOBAYASHÍ, OGATA, RICHARDSON. C.J.. WELL, AND KID MENOR JJ. *2 MENOR, THE
OPINION OF COURT BY J. was indicted for the crime of attempted The defendant §§ murder, (1975 in violation of and HRS 705-500 707-701 Special by was Supp.). jury He convicted of offense a and imprisonment the trial court to sentenced life with (1975 § possibility parole. HRS 706-606 Special Supp.). of sentence, judgment From the and appeals. He predicates appeal upon principal grounds: three
1. That the trial erred in denying court his motion for a § mental pursuant (1975 examination Special HRS 704-404 Supp.).
2. That the trial court erred in permitting prosecu- tion, over objection counsel, of defense to cross-examine the defendant on his failure to inform police interrogators following his arrest of certain exculpatory matters about which he at testified trial.
3. That the imposed by sentence trial court was violation of the sentencing provisions of the Hawaii Penal Code.
l On the question of whether the trial failing court erred in a to order mental trial, examination before proceeding (1975 § pursuant to HRS 704-404 Special Supp.), we find no error. The provides: statute
(1) has of in- Whenever the defendant filed a notice rely physical on the of or mental dis- tention to defense ease, disorder, excluding or responsibility, or defect or proceed, is reason to doubt his fitness to reason there disease, disorder, or physical that the or mental believe will has in the of the defendant or become issue defect case, may immediately suspend pro- the court all further jury If trial has been em- ceedings prosecution. at discharged it shall or retained the discre- panelled, be jury dismissal of the trial shall not be tion the court. The prosecution. a bar to further
(2) in the suspension Upon proceedings further State-employed appoint the court shall prosecution, psychologist designated physician or certified clinical department from within health director unbiased, qualified physicians, health and two additional and one certified clinical qualified physician or one report upon physical and to examine psychologist, mental of the defendant. condition a mental prior Defense counsel moved to trial for *3 defendant, that the expressing examination of the her belief defendant was in need a mental examination to determine and alleged the time of the offenses his “mental eonditioruat time, any or emo and the existence of mental present at penal responsi tional affect defect which-would defendant’s ” This motion was not a bility to.proceed. and fitness notice rely irresponsibility on the defense of mental intention to event, any required addressed, statute.1 And in the motion was by-the § the trial HRS to the sound discretion of court. (1975 (1975 §HRS Special Supp.).2See 704-404 also 704-405 Journal, Rep. 1973 Stand. No. Supp.); House Comm. Special 726; Journal, Rep. 1973 Senate Stand. Com. No. 858. trial, in to and its prior was heard the court
The motion motion, its discretion. find abuse of denial of the we no to order decliningsua sponte in did trial court err Neither defendant. sentencing the prior to mental examination 1 motion, upon hearing i was insistent th< uitin- defense counsel herself At the Special Supp.): § 704-404il07.S full of HRS invocation very cooperative Although and cordia the defendant has been CHU[: [MISS any are mental diseast to whether or not there not trained determine with me. I’m reason, object ti part for would not of the defendant and I on the or disorder psychiatrist to ordeiing examine the defendant deter to perhaps the one court — empanel members o. or not there is sufficient basis whether mine psychiatric panels defendant. to examine the three-member ol revision of the laws simplements to the last forth in the set matters The § 2-6. prima the law. HRS facie evidence of Hawaii are
II objection prosecution, over trialjudge allowed The counsel, as whether he had ask the defendant of defense matters about which he police certain told claims reversible error. at trial. The defendant testified had The victim this case testified the defendant and had then apartment go beaten her their forced her to with him in his car to a area Pali where deserted below the he away. then shot her and driven Sometime later Officer scene, upon Cameron W. Deal came and she went up to immediately him for assistance. The officer called for ambulance and police headquarters, notified it was then a.m., approximately February 10, 12:55 on 1974. The defendant’s and description name was broadcast over radio duty, a.m., to officers on and at approximately 3:15 Lupenui Officer Michael stopped the defendant as the latter walking toward apartment building placed him under arrest. station,
After the defendant was taken to the police he was warnings by his Miranda Spencer Springer. *4 give He elected not to At statement. time trial the defen- dant took the witness stand in his own behalf. On direct examination, readily he having argument admitted with girl friend and described how he kicked her. He dis- any knowledge claimed or involvement shooting, how- ever, by testifying further on direct examination:
Q. And then what happened? And I just A. then slammed the door and I went out a walk to for cool off. And then
Q. happened you what after went out for a you walk? did go Where in Waikiki? — — just just A. I I any wanted to walk place just to my just to calm nerves. I just get peace wanted to of mind I get where can things together argument about the that we had earlier.
IQ. see. And then uhat thing you is next remember? W'ell,
A. on my wa v back to the apartment, police stopped me. officer And
Q. what happened? me, A. And he asked your girl, “Where is I friend?” him, told “Where is she? thought she was in apart- me, ment.” And then he told “You knoiv what happened,” him, and I told “I don’t I just know. came back from walk.” And then put he on me and he took handcuffs added) me downstairs. (Emphasis foregoing The testimony, which be- came the focus of the subsequent cross-examination prosecution: Alo,
Q. Mr. at you the time that talked to or Detective Springer you, you any talked to told police officer what you today? told us No,
A. I didn’t. Q. talking Since Springer, you to Detective have told any officers, police department, story you have today? told us
A. I don't recall. ; n <
‡ Alo, Mr. Q. you when talked to Springer you you did story tell him the told us this afternoon? A. I didn’t. No. — Honor, MISS CHU: Your THE WITNESS: I don’t remember. — I
MISS CHU: again object would to this line of questioning regarding defendant's assertion of his right to remain silent. ' THE COURT: Overruled. (bvQ. Yamamoto) Mr. your answer, What was Mr. Alo?
A. I don’t remember. say. Alo, to
Q. you You mean that Mr. are accused of the attempted you crime of murder and don’t recall you any whether talked to police you officers after were arrested? I
A. I knew to a police talked officer. I his don’t recall name. one, explained you You him that
Q. to weren’t the Alo? You didn’t that? Mr. do do it.
A. I didn't that, of Mr. Alo? you yourself Have convinced Q. you question? A. What mean question? Q. You don’t understand it. just A. I didn't do
Q. I see. any defendant on examination disclaimed The direct and claimed to the arrest- knowledge shooting of have told recall) (whose not that he did not ing officer name he could friend, victim, happened girl what had his know to just he had come back from a walk. Whether he fact self-serving made this became, police statement to the there- after, legitimate subject inquiry of on cross-examination. entirely prosecutor was approach
The taken rigid a strict and formula He was not bound to follow proper. Initially, inquired he the defendant on cross-examination. story any police before he had told his to officer whether given had the Miranda Springer who him talking to Detective answered, “No, I didn’t” warnings. When (this contrary exami- his to the on direct spite assertion nation), up question then followed with the prosecutor any given he had his version to other officer whether re- talking Springer. When the defendant after to recall,” only “I it was then that the plied, prosecutor don’t given it Springer. him if he had to Detective asked Obviously, prosecution accept was not bound to testimony on direct examination. the defendant’s true solely to the right its to cross-examine restricted was Neither alleged prosecu- The exculpatory statement. contents exactly whom right to whether and determine tion have his supposed the defendant any or after it was officer before If made version. appeared as.his Springer, answers with Detective interview *6 424 indicate, then was it to the latter had
given it? Or given had he it to the at all?
The initial questions
legitimate
had a
tendency to test the
memory and
veracity
witness,
and the question
involving Detective Springer, in view of the
an
defendant’s
swers to the preceding questions, went
credibility
to the
issue
of whether he had in
given
fact
his exculpatory
version to
police as he claimed he
questions
did. The
asked on cross-
examination were a natural
logical
sequel
defendant’s testimony on direct examination. Objectively
appraised,
the thrust of the prosecution’s examination was
penalize
calculated to
the defendant for his
in the
silence
face of custodial interrogation
after he had been
Ohio,
warnings. Compare, Doyle
Miranda
v.
426
610
U.S.
(1976);
Hale,
United States v.
(1975);
There is
more basic and more fundamental
than
that the accused has a
right
silent,
constitutional
to remain
and the exercise of this privilege may not
against
be used
him.
Arizona,
436 (1966).
Miranda v.
384 U. S.
And even where he
testify
defense,
elects to
in his own
his post-arrest silence
may
solely
not be used
impeach
his exculpatory testimony.
Ohio,
Doyle
Hale,
supra; United States v.
But
supra.
this
was not
case here. We also take this occasion to observe
that there have been other limited situations where inquiry
prior
into the accused’s
silence has been
proper.
held to be
Fairchild,
(5th
United States v.
1975);
See
In fully following cooperated his arrest he had impression that with In prosecu- the law enforcement authorities. rebuttal the testimony tion adduced that he had elected to remain silent being given warnings. holding after the Miranda In the tes- timony the stated: proper, to be court may
“Miranda that prosecution establishes the part use as a of its case in a defendant’s chief criminal evidence, following his warning. silence arrest and This though might even it probative, be relevant and is nor- mally But it it important excluded. is to note is purpose rights excluded for the protecting certain the defendant. It is not excluded so that the defendant may freely falsely and create the that he has impression cooperated when, fact, with the police he has not. . . . Having raised question thus cooperation of his with authorities, the law enforcement Fairchild opened a just door to full and not development selective of that subject.” F.2d at 1383. Doyle,
In the defendants given had been the Miranda warnings they at the time of their At trial arrest. took the gave stand and an exculpatory story they witness had not police. told the their previously objections, Over counsel’s they why they given were cross-examined to had not arresting officer the explanations. The Supreme reversed, holding that the use of the defendants’ post- Court impeachment purposes, they arrest silence for after were warnings, the Miranda violated Due Process however, doing, Supreme tacitly In so Clause. Court post-arrest the use of approved prosecution silence situation, and further the Fairchild noted: without goes saying post-arrest “It almost that the fact of prosecution be used could to silence contradict an exculpatory who testifies to version of claims have told the same version events upon In arrest. that situation the fact of earlier silence would not be used impeach the exculpatory story, but rather challenge testimony defendant’s as to his following behavior 2245, arrest.” 96 S. atCt. fn 11.
Ill Relying apparently upon the statement of the law in the *8 pre-sentence report, question and no having by been raised either the defense or prosecution as authority to his so, do the trial judge sentenced the defendant impris- to life onment with possibility of parole. This was in seeming con- formity with provisions § (1975 of HRS 705-502 Special § Supp.) and HRS (1975 707-701 Special § Supp.). HRS (1975 705-502 Special Supp.) specifies that attempt to “[a]n commit a crime is an offense of the same class grade as ” the most serious § offense which attempted. is HRS 707-701 (1975 Special Supp.) provides that the crime of murder shall punishable be in the manner and to the extent set forth (1975 §HRS 706-606 Special Supp.). That section of the law in turn provides, in pertinent part, that the penalty for the imprisonment offense shall be for life with possibility of parole twenty years, or as the court shall determine. § Commentary (1975 Special
The on HRS Supp.), 705-502 however, gives following explanation: purposes sentencing,
For of equates Code attempt criminal with the most serious of- substantive attempted. Only fense in the case where the crime at- tempted is murder does the authorize a Code different than attempt. sentence for substantive offense for the § provides special This is because 706-606 sentence for ordinary murder .Attempted murder is treated class added) A felony. (Emphasis felony imprison- A is penalty The maximum for class (1975 § twenty years. Special Supp.). HRS 706-660 ment for commentary are satisfied that the while not evidence We Hawaii, 1975, thereof, Laws is 163. Session of see Act legislative intent. expressive nevertheless of life with imprisonment for Accordingly, the sentence judge the trial is imposed heretofore possibility parole aside, resentencing pur- is set and the cause remanded for Hawaii Penal opinion this and with the poses consistent with Code.
Jeffrey Wayne, A. for defendant-appellant. (Maurice Lee, Attorney W. Deputy Prosecuting
Dale counsel) Attorney, Prosecuting plaintiff- for Sapienza, appellee. J., KIDWELL.
DISSENTING OF OPINION J., WITH OGATA. WHOM JOINS must, authority I of the United States Recognizing, as of con- the minimum standards to declare Supreme Court the conclusion process, I must dissent from stitutional due Ohio, 426 Doyle majority opinion. reached in Part II *9 (1976), categorically it is fundamen- establishes that U.S. an deprivation process a due to allow tally unfair and receipt warnings after of Miranda to silence person’s arrested exculpatory explanation subsequently impeach be used to footnote, pointed that out. at trial. In case court offered police upon to have told the the defendant claims that where events to which he exculpatory version of the same arrest trial, following may behavior arrest be his actual at testifies of his at that time to the version behavior to contradict shown testified, though impeach not to has he which footnote, do upon this but facts majority seizes story. The case, us. in the. before application its permit not claimed, trial, Here the defendant on to have made made, arresting statement to officer before the arrest was that just in which he said he had back come from walk and know where the was what had happened did not victim or to length The defendant also testified at with respect her. to his doings at the of the time It brought crime. out that had defendant received warnings following Miranda his ar- rest and had been interrogated Springer. Detective On cross-examination, the prosecution asked the defendant whether, at the time he talked to Springer, Detective he had any told e officer poli» you "what today”. told us The defen- dant in the negative. answered He was then asked whether he story you had told “the have told to us” Springer Dete»‘tive or any police talking to officer since Springer. to Detective To repeated questions along this line the defendant answered negatively either or that he did not remember. were, can ho no questions
There doubt that these asked for purpose impeaching testimony. Only the defendant’s questions, line the first dealing with whether he stmy any told to had his talking officer with before any way Springer, any tended in to contradict testimony of to respect upon the defendant with his behavior testimony his exculpatory arrest. Since his included version responses of his the arresting questions officer's before receiving Doyle Miranda warning, the rule of Ohio does to that apply question. prosecution But w'hen the went on into silence probe hi- receipt warning after of the Miranda testimony was no there of the which possibly could be contradi» ted testimony therebv. since he had no his bchavi»»r part after arre-i. This of the cross- no purpos»* examination other than impeach testimony h\ showing defendant'- that he had conducted credibility himself in a manner iiu-oiiM-t-mt with the of his testimony, he bail remained silent when his natural inclination, assuming testimony, of hi- truth would have story. pn-» i-ely Doyle tell his This i- what been to v. Ohio proscribes. *10 m>t
Since am able t<> this hide constitutional doubt, was harmless bevotul reasonable State v. error 26, (19 Pokini, 76) 548 2d 1402 J would Haw P. reverse the of conviction and judgment remand for a new trial.