*1
for
purpose
recalled
may
be
such
jury
they
retired
have
* *
v.
State
1322. See
Lorn,
23A
Criminal
§
C.J.S.,
State
91;
Benton,
367 P.2d
45 Haw.
O’Keefe,
368,
Del.
Appellant’s as jury the minds of doubt to raise a in was sufficient of evidence on the basis intent. The court, to his criminal correctly instructed have adduced at the should trial, three verdicts any jury in instruction 50, robbery guilty first robbery degree, guilty returned as could be or not guilty, the second degree, instruc- giving erred The trial court each defendant. the determination from the tion took away jury, abettor, an aider of whether the defendant Shon, Antonio. principal actor, criminal intent same STATE OF HAWAII v. DAVID K. HASHIMOTO,
GEORGE M. FLORENDO TANISUE, GUILLERMO, LEO AURELIO ALFRED L. CANI BAJO, BARRO, ANES AND HENRY A. ALEJANDRO.
No. 4179.
October 1963. C.J., Cassidy, Wirtz, Tsukiyama, JJ. Lewis Mizuha, *2 TSUKIYAMA, OPINION THE BY OF COURT C.J. David K. M. Defendants, George Hasliiinoto, Tanisne, Florendo Leo Aurelio Alfred L. Guillermo, Bajo, Barro, and tried Henry Alejandro, indicted, A. and Canianes rape. the crime Court First Circuit in the convicted of error.1 They court on writ are now before appears upon there According the evidence her July and Schenck dispute, Janet no to be approxi- at Park Moana Ala drove to Smith escort Gene girl in the water mately p.m. waded While there, 10:30 three-quarters of along time and about for some the beach leave, about to her escort were and an hour later when she suddenly appeared young and surrounded men several together grabbed with Smith the men them. One of At the same someone time, to beat him. others started holding took at her back both arms Janet seized away pushed city parked about two blocks her to a car off who drove a man at the wheel her into it. There was hoys identified Janet entered. as soon rest man and the defendant Hashimoto the man the wheel as at *3 the car as her to her the arms and took who seized to latter told her not that Canianes. She testified not be that if do she would hurt; scream for did not so she proceeded similarly again to- the car he while warned were that three of Head; ward Diamond rear in addition to herself, and four in the the front seat sitting legs heard that she Canianes; she between the boys talking rape; that the about relations and sexual passes hoys except her and made at in the rear Canianes places “they had their that hands”; shouldn’t have touched jacket “grabbed something, or blanket Canianes coat, guys my legs put to leave me it over and told not because was scared. that she did scream she alone”; they passed after further that Janet testified stop road and to a the car turned off the came Blow Hole, by way appeal the statute taken of writ of error under This was antedating Rules of Criminal Procedure. Hawaii about a city block away where there fir many trees; that as she was being pushed out of the of the boys one car, choked her neck with both hands applying shook her, considerable that hit her she head on the door- pressure; sill that then ; she “passed that she remembered that out”; as she was regaining she heard somebody consciousness, “I think say she’s that dead”; somebody beer rubbing on her face and that “someone had been jabbing me in the or thigh pushing me and it something hurt”; she also remembered that “there someone on top me, maybe up my no my one close to but I stomach, face, remember the pressure on my that she noticed that body”; she was lying nude on the ground on what seemed like blanket.
After Janet engaged she dressed, boys conver- sation as she she did not because, know what testified, would next. happen Testifying she further, recalled that in the course of the Canianes Guillermo conversation, told her they were that she heard sorry; Alejandro say “Let’s rid of get she turn us might she her, in, might get inus back trouble”; driving while again town, she heard Alejandro say feed the “let’s sharks”; they approached the place where she was to be let off the car, “They just kept telling say me anything because if that I would never off did, get the island alive and they would hate to have anything happen because me, wasn’t just there were other them, guys around here to take care of too.” me, testified prosecuting witness also dur- except that, the small
ing hours of the of the 9th morning when she did have sexual intercourse without her consent or knowledge, *4 she had not had sexual intercourse on July 8th 6th, 7th, or to the noon up hour of the 9th given when she was pelvic examination Dr. that although and West; knowledge derived from her doctor’s some statement, her on on the back seat with in the car boys sitting had been used. the return told her that she trip in the Dr. who conducted the examination pelvic West, sperm July that he had found forenoon of testified 9th, the “more witness and vagina prosecuting “looked like than area vaginal usual” reddening there.” He there had excessive friction been some sort of stated that in his she had sexual intercourse opinion exami- within his thirty-six prior hours twenty-four nation. appellants error numer-
Defendants, assign as here, ous of the trial have culled rulings but court, orders out and four specified assignments of error support their contention on appeal that of the court judgment below should be reversed and ordered dis- defendants charged.
The first error specified is that which embodied in assignment of error No. that “the court erred in 2, wit, denying the motion for severance of trial for each of the separate defendants from other.” It apart is noted their shortly arraignment entry after of their respective of not pleas either jointly defendants guilty, filed individually several written including motions motion for question trial. All separate the motions were denied by written orders filed. separately Subsequently, at the orally inception trial, renewed inter alia motion their severance of trial the ground that “it is to have a fair and impossible trial for impartial each of them under the circumstances of this case.” In the course of argument out presented of the presence of defendants alluded to the jury, difficulty allegedly in the encountered of the jury selection and to the preju- dicial effect of unable to being “cross-examine or dispute * * what another counsel for another says defendant *.” Argument the trial resumed concluded, and- court an-
190 defend- ruling of the motion which its denial
nounced duly excepted. ants that and established recognized rule generally
It is a
a
indicted for
collectively
crime,
are
persons
where several
rule
also
is
them
try
jointly.
usual
is to
procedure
in its
the court
by
be made
may
that exceptions
settled
ordered when
is
trials
separate
discretion and
sound
impartial
a fair and
that
to the court’s satisfaction
shown
Hashi
State v.
a severance.
trial cannot be
without
v.
Territory
P.2d 728 (1962)
46
377
;
Haw.
moto,
16
743;
Haw.
Johnson,
v.
Territory
Counsel, moreover, trial separate joint defenses and would possibly result in differences among repre and confusion counsel senting affirmatively different The record dis defendants. the apprehension expressed by closes counsel unfounded. The trial proceeded smoothly, punctuated *6 from time to time instances of verbal be only by brushes tween the prosecution and no the defense there was noticeable disagreement within the of ranks the defense. It is also to be noted that separate the allegedly statements by made each defendant held to an investigating detective, by the court voir dire made upon to have been voluntarily by admitted into albeit over each, evidence, objection, after only or portion portions thereof which pertained to a codefendant or codefendants had been obliterated or excised and checked all duly by by counsel required court. “The feature of certain evidence being evidence one defendant against against but not another defendant in usually present joint is It is every trial. well settled the fact that in a trial will joint there be evidence one defendant not an against against which is evidence * * other defendant does not require trials separate Rizzo v. United F.2d 304 818 States, (8th 1962). Cir. See also Commonwealth v. Pa. Super. 200 Snopek, 455, 190 161 in A.2d which the court held there no (1963), in prejudicial allowing error a consolidation for single of trial three three separate against indictments different defendants for the crime on the victim. rape same by cited defense sever- question cases on the have been in every ance examined. It evident case questioned the trial court’s discretion was dis- there a clear showing patently preju- of abuse turbed, dicial some of codefendants. here ar- Defendants separate gued trial that the additional costs court question resolving a factor in trials should not be any Although remark the record fails show severance. agrees regard, ele that the the court in that this court justice. outweigh be ment of allowed costs should involving single every trial several case of However, showing prejudice of a clear the absence defendants, public totally bur be insensible of a trial court cannot conducting involving duplicitous trials same den in F.Supp. v. Verra, issue or In United States issues. (S.D. 1962) re denied court severance N.Y. where the jointly quested one tried on two counts, the defendants conspiracy perjury, the court said: other for and the joined proof in the common “Where there are elements avoiding duplicitous, public time- interest in offenses, weighed against consuming expensive trials must be prejudice Here it is which the defendants envision. separate conspiracy per clear should trials that, jury be efforts would counts be Government’s ordered, * * duplicated and benefit to the movants without all the were indicted
In the case at defendants' bar, *7 rape. jointly § for the crime of Under R.L.H. 1955, 252-1, requested given by instruction No. the court State’s they approval, all treated and tried with defendants’ transpired principals. developed, it the trial (cid:127)as As the rape including have victim would been witnesses, same separate testify had trials been in each case, called ordered. only gen- contained filed, motions for as severance, except grounds in of Hashimoto. He asserted, the case
eral anticipated prejudice from confessions in addition already point addi- considered, defendants, of other compel separate ground he could in a trial tional joint In Guil- trial, defendants to take stand. other and counsel for Hashi- did take the stand lermo and Barro prejudice, moto did not cross-examine them. No therefore, appears upon ground consideration of this additional motion. Hashimoto’s nothing
This court satisfied is that there is in the record support which lends to defendants’ claim that the trial disallowing court abused its discretion a severance. Assignment (specified 1) of error No. error No. is as accordingly overruled.
Assignment 2) (specified of error No. 3 error No. relates to the trial court’s denial of motion for defendants’ immediately jury an order of mistrial made after the urged support been sworn. It is of defendants’ claim of (1) guards brought error that “the had at various times in the defendants handcuffed to each other in full view jurors”; (2) guards throughout of certain “the have, jury, sitting selection of the been side with the side * jurors* (3) in full of all view “the guards present throughout have been in the courtroom jury, frequently the selection of the in full uniform, dangling points proceed- even handcuffs at certain in the ** ings *.” problem pertaining A facet of the to the use of hand- upon by cuffs discussed and ruled this court in State v. 44 Haw. P.2d Brooks, 611. Unless shown that the court abused its discretion or that the accused actually prejudiced jury before the under the stated grant refusal for circumstances, a motion mistrial not does constitute reversible error. retrospect,
In this court is fact aware jurisdictions many problem of manacled defendants being escorted to the courthouse or even into the courtroom guard under been made an has issue ultimate determi- light appellate In nation courts. of this com- court’s necessary supra, inment State it is deemed Brooks, *8 great length. point to labor the at during argu- the case that The record discloses this held in counsel chambers, ment on the motion mistrial they to court themselves defense narrated the what for the guards presence of uniformed to the observed relative brought in hand- to the fact that defendants Avere colloquy, that the it is noted In the course of the cuffed. the out had seen court stated that he some jury questioned whether the handcuffed but in the corridor colloquy in the footnote below it. The shown had seen particular point in this issue.2 illustrative of involved point approached mo- on the until the The court was not jury had been for mistrial after the sworn. tion was made, jury polled regard. As matter was never represented so much there was court, as fact, if, guards and it would seem handcuffs, concern about the subject upon the dur- would have touched that defense jurors prospective ing dire of the the voir examination respect circumstance. their attitude ascertain of the several de- reflected one record, But, point. jurors that examined the on fense counsel repeats pleadings and statements made This that court self-proving, and that there are not counsel to court pp. handcuffed. cuffs first guard Judge, of them handcuffed. “MR. FELZER: “THE “MR. OHANG: Several “MR. “THE OOTJRT: “MR. “THE COURT: 9d-9e). “THE day, off. came in with and still FELZER: CHANG: I COURT: OOTJRT: was out in the corridor You handcuffed, sitting say And I some of them handcuffed and They AVell, AVhen? I remember I I don’t know that am but brought I am prepared ****** mornings. might say I surprised have that, your Honor. them into the in the front row. no— Is poll if any any clerk’s right, jury, the —I think courtroom, office outside and the told him take jury has seen them Mr. yes.” jury Felzer?” has seen (Tr. mind p. you, 9b). (Tr. any *9 showing of a is no error in the absence reversible court or that defendants were clearly abused its discretion supra. jury. Brooks, before the State actually prejudiced merit. of error No. 3 is therefore without Assignment No. 18 as We reach of error assignment (specified now trial court com- error contend that the 3). No. Defendants their by restricting mitted a reversible error cross-exami- nation of called to the witness Janet Schenck when she was time. by stand for the second Earlier prosecution testimony had taken the stand to give Janet case, behalf of the prosecution.
On her on the her entire testi- appearance first stand, on direct examination mony given prosecution. was a re- Upon urgently requested its conclusion, for the on what obviously purpose conferring cess, course court each de- of action take. When resumed, fendant separately stated to the court that he would waive the cross-examination.
When called to the this first time Janet testified stand to her abduction and ride through ending up Waikiki, at a fir trees Hole. She then place past with Blow testi- fied that hit her she was head on doorsill of the choked, out. She passed partially regained consciousness car, nude. At “there lying point and was on a some blanket, * * * of me pressure my body.” was on top someone hurt “my stomach finally regained When she consciousness * * hurt from *.” “my thigh something an awful lot.” Also further testified to the conversation she had had She with return- defendants while and threats made while dressing, her in the car to a about four blocks from ing spot place her Included in her go. residence where defendants let that after she had statement dressed, talked for a about about coco- climbing “we while surfing, about my anything nut about home just trees, town, of.” could think he ex-
Dr. West then called. has been As stated, after amined the witness about eleven hours prosecuting had anyone to find out whether question occurrence in the vagina her. He found sperm intercourse with inter- had had sexual gave opinion she his thirty- course or at most twenty-four within the past hours, hours. six the witness then recalled to
Janet over was, objection, on this On direct examination stand the prosecution. July midnight testified that on between occasion she her consent, intercourse without 1:00 she had sexual a.m., *10 that did not'have certain she whom, that she was not with up 7th on the 8th 6th or any July sexual intercourse on on not have intercourse that did sexual to this she time, time was let 9th between she July during period residence and time of the her place out car near there further testified that She her examination. physical throat didn’t her arm and which she right on were bruises else- couldn’t have received the incident and have before tired.” ache and was “I had that stomach that still where, objec- ensued without by defendants Cross-examination Janet question commenced one of counsel but when tion, appearance her first during earlier testimony given on her your and sports about was talked things you “the other matters,” and few surfing life Indiana, home improper is this grounds “on the objected prosecution ruled: “I will court Whereupon, cross-examination.” her testimony her on on cross-examination your rule now cross- you may and is waived appearance first re- upon being she testified on what only her examine made and all defendants taken was Exception called.” error. assignment subject principle the general with no quarrel finds court This of cross-exami- “the may waived, be though that, But mere privilege.” absolute nation is phrase meaningless amplified unless to coin- shown particular ap- cide with the circumstance to which it is plied concerning prejudicial and with the established rules error. ruling holding
We of the are view that the trial court’s they waiver cross-examination defendants prosecutrix made when examined the first time erroneously position restrictive. not in a Defendants were judge they prosecuting whether would cross-examine the witness on the of the first installment of her basis testi- mony they only when did not know it was a first install- ment. judge’s ruling requiring the trial
However, defendants testimony to limit their cross-examination “to her at the second time she took stand” allowed con- prosecuting siderable latitude. The wit- beyond ness the second occasion went fact of sexual intercourse. She that the circumstances testified, effect, were such that she had had sexual at the hour intercourse knowledge part named without on her other than that de- her rived from doctor. She further testified that as a result opened up
of the incident ached she and had bruises. This subject upon matter the assault her which rendered question it with the whole whether unconscious, *11 by the sexual if it force and intercourse, occurred, against her on the one on with consent will, hand, question other the hand. To that all of the circumstances through calling —the ride Waikiki without the witness for the conversation conducted with defendants aid, she while dressing, trip, she was the on threats made the return pertinent. the like—were ruling complained
At the time when the of was made laying background questioning counsel had been the prosecuting the witness as conversation had with she dressing. questions defendants while asked were an- 198 to strike. After the court’s
swered. There was no motion the ruling without cross-examined objection, defendants, the stomach- variety including on a subjects, witness to ache and she claimed be whether possible causes it, the normal causes of virgin a the incident, possible before to Dr. West unusual in area which reddening vaginal the return trip had had on the what defendants said testified, only in basis to whether (this being response question was Dr. for her intercourse testimony that she sexual witness said prosecuting West’s and what testimony), ques- questioned by specifically when first the police, story you tion “did relate related you police ruled question to us No asked was yesterday the stand.” out. applies
Pursuant to R.L.H. 1955, 212-14, § unless the court “is judgment may no be reversed case, opinion injuriously that error was committed which It error.” rights plaintiff affected substantial United 282 may States, well be as held in v. that, Alford from U.S. denial cross- 692, prejudice 687, showing necessarily depend upon examine does not tend have out facts brought the cross-examination would the witness. In the ing present case, however, discredit find it not shown that are unable to because prejudice we ruling in fact limited the cross-examination was to the prosecutrix’s counsel confine themselves requiring v. Cf., Post, occasion. Berkson testimony on the second 2 N.J. 186-187, State v. Vigorito, Haw. 436, 438; 2d 89 Cal. People Stone, App. A.2d 841, 842; P.2d 333. court’s error adverse effect the whatever
Furthermore, scope cross-examination on the defendants’ ruling the fact that before offset and cured have had was may to recall in chief offered rested its case the prosecution in respect for cross-examination complaining
199 the witness on her first appearance to but for purpose, called to the stand subsequently declined3 through attorney, each of the his defendants, State Cf., the offer and opportunity. take advantage v. 894 S.W.2d 889, (Mo.); 100 Wilkins, Malatkofski Harris 1950) ; 915 Cir. 179 F.2d (1st United States, careful 729. Upon 99 A.2d 203 Md. v. State, 165, 173, fail case we consideration of the circumstances of at the time the examination wherein perceive adequate not have afforded was recalled4 would effectively. the witness to cross-examine opportunity 18 overruled. of error No. Assignment is Defendants’ assignment of error No. 18 [24] (specified to the trial exceptions to their 4) pertains as error No. and (2) motion for mistrial rulings denying court’s (1) police eighteen to order denying request defendants’ some to vacate trial as observers recruits at present courtroom. a group one of the trial during sessions,
It appears in the present in white were recruits dressed police ob- requested A counsel for defendants courtroom. certain members poll permission tained the court’s en- interrogation Eesponding the audience. in- recruits charge lieutenant sued, police police of his members they the court were formed experience that they present recruiting class and program. of the class a part in courtroom procedure prompted of counsel was on the part move Perceivably, the group or, presence that the his apprehension attorney, Bajo, through reserved the his It noted that defendant advantage However, he did not take of further examination. this. 17, 1959, Thursday, September left the stand on The witness Monday, Sep- for further cross-examination to the stand was called tember day 21, 1959, trial thereafter. the second if allowed to would have an effect continue, upon adverse *13 the jury. It is not shown that else anyone recruits in the courtroom were or in indecorous, any disorderly, manner disturbing proceedings.
Courts are established for the judicial administration
of justice. They
to the
open
are
subject only to the
public,
control and supervision of the court
proceedings by
in
presiding judges
whom is vested the authority to clear
the courtroom of persons customarily excluded or of per-
sons whose conduct or
in
presence
is.
courtrooms
such
that
fair and impartial
orderly,
of the
functioning
courts is affected. The fact that
are
they
as a
open serves
safeguard
the integrity of our
88
courts.
Trial,
C.J.S.,
p.
53
39,
98; Am.
§
54 et
Jur., Trial,
p.
seq. See
41,
Sugg
§
v.
When Hawaii was a the Sixth Amendment Territory, of the Constitution of the United States held to was apply directly to Territorial judicial Rassmussen proceedings. v. United 197 U.S. Ex Parte States, 516; Haw. Higashi, 441. 428, The same provisions of the amendment now ap- pear the State Constitution of Hawaii. Article 11. I, § It is there provided that “In all criminal prosecutions, accused shall enjoy the speedy a trial public * * *
The words trial” “public self-explanatory. are In Territory Scharsch, Haw. this court granted trial new the trial court had ordered “all because those in the courtroom to leave the officers of the court.” except in the case at defendants and court Ironically, bar, demanded the exclusion of a of the segment audience, Schars eh, whereas in the defendants supra, objected exclusion on the trial. ground public was
It appears relating from the record to this phase that the recruits dressed their stand- proceedings police ard attire in the courtroom present white classroom or overt act disorderly observers. There no conduct was of any any kind to lead court to believe that pressure or influence exercised upon or intended be exercised stated jury. clearly reason for their presence court. explained by open the lieutenant under poll We are satisfied trial his properly applied court discretion in defendants’ motions. refusing grant
Assignment of error No. 24 numbered “18” (incorrectly in defendants’ has no merit. brief)
We come now defendants’ final of error assignment No. 30 (specified as error No. At the close of the 5). pros- ecution’s all moved for a directed ver- case, dict and noted exceptions to the denial thereof. Defend- ants claim error the evidence was insuffi- contending *14 cient to establish the fact of sexual intercourse between them and the witness and that if the evi- complaining even dence did show such it affirmatively showed intercourse, that the complaining did not put up degree witness resistance required the crime of by relating law to rape.
Upon a careful review of the entire it mani- evidence, festly to this court appears defendants’ contention cannot be substantiated. It firmly rule established in is a the overwhelming majority of jurisdictions including ours the submission of a case to over jury objection if only constitutes reversible error there is no substantial a competent finding guilt by evidence warrant v. 347. The record in jury. Territory Haw. Aquino, this there case shows that was adduced sub- perspicuously stantial and evidence of the crime In competent charged. the face of the earlier in this evidentiary facts stated opin- think that the trial court would have been deemed we ion, had it travesty to have made withheld the case a justice, from the on the that there no evidence jury ground was sexual intercourse. claim that the victim failed to
Apropos rape put say by up required degree it to tlie of resistance suffice law, by rape requiring the victim that the resistance law on apply carnally not to an unconscious when attacked does by victim. In the lone cited defendants, case Territory recognition in Haw. 677, 682, court, Nishi, exception “There no evidence declared that was rule, ability prosecuting whatsoever that the impaired uncon- reason of or even resist was overcome threats or exhaustion.” sciousness, overwhelming appears In the the evidence instant case, lost con- choked she that after the victim was car, totally par- until and remained insensible sciousness she body tially pressure her felt a “came when she to,” again lapsed pain thigh; into uncon- she about gradually real- she recovered, she later and as sciousness rubbing on her face men beer that one of the was ized obviously in a she still daze, revive and that while her; According to the say, “I think dead.” heard she’s someone respective made includes the statements evidence which investigating acts con- all the detective, rape perpetrated stituting she while the crime of physical condition which resistance and mental utterly impossible. argue have or could that she should further
Defendants way help of the crime to the scene on the screamed along proceeding The rule of Waikiki. the car was when carnally being apply woman is unless resistance does a. squeezed in this case was that the victim The fact attacked. *15 by of them hold- one seven with men, the car surrounded in warning not scream ing that if did the effect she her to and jury to con- for an element not be hurt, would she determining in Wai- her failure to scream in whether sider acquiescence in or consent her of an indication kiki was among place later took relation which acts of sexual fir trees. not and for the jury All were matters of the foregoing and differences Factual conflicts, for the judge. presiding credibility and the determination inferences as well as We jury. province of evidence lie within the weight in refusing grant did not err hold that the trial court the motion for a directed verdict. error No. in assignment find no merit therefore,
We,
or
specified
argued
assignments
30. All other minor
Akana
In Re
Robert Kimicra for defendants, error, M. Alejandro George David K. Henry A. Hashimoto, Tanisue. in H. K. plaintiff error,
Robert for Chang defendant, Alfred L. Canianes. K. Leo plaintiff
David Namaka for defendant, error, Bajo. Felzer for plaintiffs
Nathaniel defendants, error, Barro. Florendo Guillermo Aurelio plaintiffs for all error. defendants, Daniel C. Ridley City Prosecuting Attorney, I. Deputy George Hieda, Prosecuting H. (John Peters, of Honolulu County in error. for defendant plaintiff, Attorney), MIZUHA, OF J. DISSENTING OPINION testi- complaining On her first appearance, her abduc- surrounding fied circumstances as to all and her conversations the use of force tion, defendants, There no evening. with defendants the entire during acts of perpetration with reference the defendants. She intercourse upon sexual On the basis of this no recollection same. knowledge facie prima case did not establish a testimony, *16 rape, defendants declined to cross-examine.
The second witness for the State Dr. was a West who testified that he had given physical examination the following day which about 11 hours after time when the alleged rape occurred. this examination During place took noon approximately at on July 9, 1959, the doctor found dead in the spermatozoa complaining witness’ vagina and more than usual reddening vaginal from area, which he concluded that had sexual she intercourse with someone prior time his exami- nation and at the most 36 hours thereto. prior
After Dr. West testified, called the prosecution complaining objected witness back to the stand. This was the defendants.
There was no explanation by prosecution why as to they were Janet recalling Schenck to the stand nor did the trial court inquire as to the for the recall of reasons Janet Schenck. Likewise the time the complaining at witness’ first direct examination was did finished, prosecution not indicate that they intended to recall Schenck for Miss further testimony.
In a trial rape where the complaining it would be trial court crucial, presumed would afford defendant full opportunity exercise his constitutional confrontation. But the following occurred at the conclusion her first examination:
“Q testimony you have Jan, [MR. TITCOMB] related to this did all take just place in this jury, in the Hono- City County of jurisdiction, is, State Hawaii? lulu,
“A sir. Yes,
“MR. TITCOMB: Take the witness.
[*********] “MR. FELZER: The defendants Guillermo Barro Honor. require your no cross-examination, * * * *
* * Rodney [Testimony West.] of Dr. T. Sclienck. “MR. TITCOMB: Call Janet calling object the wit- “MR. FELZER: yonr Honor. ness, bordering ludi-
“MR. on the *17 TITCOMB: This is objection. please, if the Court crous, “THE COURT: It will be overruled. Exception.
“MR. FELZER: “MR. Your ob- CHANG: make the same Honor, jection on behalf the of defendant Canianes. ruling.
“THE COURT: Same Exception. “MR. CHANG: “MR. Your for the KIMURA: at this Honor, time, perhaps prosecution record the inform to how can us as many times he to intends call Janet Schenck. may
“THE He COURT: not. Very your “MR. KIMURA: Honor.” well, prosecution did not of the to ask leave trial court complaining subject withdraw the witness to recall at a prosecution later time. When the concluded exami- the complaining establishing nation the of without witness, prima by facie case as admitted the State in their brief, asking leave of court without the trial to withdraw subject necessity the witness to no of the there was recall, defendants to their assert basic when no crime had by complainant’s testimony. been established the complaining When the State recalled the witness, upon objected, the defendant it was incumbent the trial judge inquire prosecution necessity of the toas the of testimony any complainant. further from the Without being presented impossi- reasons trial it the court, any specific objection. for the ble defendant to make If the State informed the trial court that it intended to prove rape, of the essential two elements the crime of lack sexual intercourse and consent cov- recall propriety ered in the initial examination, if the trial could been thoroughly argued. Likewise, have fit to permit its discretion saw court the exercise of for further testi- complaining State to recall witness cross- question to establish the crime of mony rape, of other elements testimony examination on earlier the peculiar proce- In view of crime had to be considered. of the trial duty dure adopted prosecutor, on all cross-examination permit court exami- completion after the complainant second the State Recall of the witness complaining nation. not sat- conclusion of its does case, four later at the days a fair requirements the minimal constitutional isfy trial. termed the ob- sarcastically attorney
The prosecuting complaining the recall of the jection of This remark on the ludicrous.” as “bordering followed referring procedure more appropriate *18 with- of evidence presentation for the by prosecution overruling abrupt and to the by the any query court, out objection. of defendant’s her ap- on second testimony complaining
The witness’ mid- time around that some definitely established pearance intercourse sexual July 1 she night 8,1959, or o’clock, her consent. the seven without defendants, with following her direct examination, After second on cross- defendant’s counsel asked questions : examination told you when
“Q Miss Schenck, [MR. FELZER] you your background, about yesterday something us Indiana? at to school you Goshen, went said Indiana. at Goshen, I to high “A went school that at some “Q yesterday testified you And also talking about you were the pine stretch, time out at correct? is that the defendants; matters with various
207 sir. “A That’s right, talked yon things
“Q among And that surf- life in Indiana, and home your sports about Avas correct? is that other ing matters; and a few “A right.” That’s appears colloquy followed
This was margin below.1 State 11 of the of the Constitution
Article
section
I,
prose-
criminal
in all
to the accused,
guarantees
Hawaii
the witnesses
with
“to be confronted
right
cutions,
this con-
purpose
The main and essential
him.”
against
the defend-
is to secure
of confrontation
right
stitutional
right
“The
for cross-examination.
opportunity
ant the
a
accepted
fundamental
cross-examine witness
Broohs,
State v.
system.”
our judicial
basic to
right
P.2d
616.
Haw. 82, 89,
protect
is to
provision
of the constitutional
object
testimony during
adverse
any
against
It is a
criminal
trial.
substantive
of a
course
grounds
please,
object,
on the
I
if the Court
“MR. TITCOMB:
improper cross-examination.
this is
merely recapitulating what was said.
COURT: He is
“THE
“MR.
“MR. TITCOMB:
your
background,
laying
Honor.
I
FELZER:
am
heard,
please?
May
If the court
if
Court
I be
yesterday
recall,
offered
direct
the witness
will
counsel
they
cross-examination,
waived their
time
at which
over for
turned
right
testimony
portion
when she
of her
her on that
to cross-examine
pine
then
fir
She was
stretch.
Moana and the
as to Ala
testified
called
5th,
July
during
encounters
to no sexual
and testified as
as witness
9th;
6th, 7th,
in direct.
to that
was limited
8th and
she
they
now,
they
her
her as to
cross-examine
are to cross-examine
If
testimony
took the stand.
second time she
at the
“THE COURT: That’s correct.
mony
examine
it is
[*********]
“THE COURT: will
“MR.
“MR.
“MR. KIMURA:
“MR. CHANG:
entirely contrary
on her first
her
FELZER:
NAMAKA: I make that
*19
only
on what she
appearance
I make the same
I take
I make the
to the laws
rule
exception
is waived
has testified
same, your Honor.
same
that exist
your
to the court’s
motion,
Canianes, your Honor.”
cross-examination
and that
today,
upon being
your
ruling
now cross-
you may your
Honor.
Honor.
and I feel that
recaUed.
her testi-
privilege
granted
accused and not a mere
to be
or withheld
at the discretion of the trial court which in the exercise of
may
scope
reasonable discretion
limit the
extent of
absolutely deny
cross-examination but it cannot
it to one
entitled to it.
United
v.
282 U.S.
51 S.
States,
687,
Alford
Hanger,
Ct.
75 L. Ed.
J. E.
Inc. United
218,
v.
624;
States,
Lindsey
(D.C.
160 F.2d
v. United
It can be denied insofar as the that, ing testimony witness’ initial affirmed no sexual acts hav- ing upon been committed innocuous her, presented nnd The State no cause for cross-examination. complainant’s testimony, admits its brief “that first unexplained by appellants, unrebutted and was, itself, as a matter of insufficient to warrant conviction of law, * * ^appellants nothing There at cross-examine first all the conclusion of the examination because rape the crime of had not been estab- (cid:127)essential elements of lished. restricting scope
Any rule addressed cross- grounded promotion its roots examination has orderly presentation Yamashiro v. Costa, of evidence.2 applied In instant the rule as case, 54. Haw. consequence forcing had the attendant court .lower n piece-meal cross-examination of a conduct theory prosecution’s upon single presentation had transformed the of evidence method of govern thorough merits of the various rules on the For a discussion McCormick, Scope cross-examination, ing scope and Art see Cross-Examination, Rev. 47 Nw. U.L. 177. *20 complaining persons.3 separate two It would witness into standpoint al- seem from the a fair trial and the of that, opportunity prose- lowance of full to cross-examine, alleged cution’s orderliness had become an unfair advan- tage. Certainly, weight complaining the real of the wit- testimony, purpose ness’ initial for the of cross-examina- apparent could not have become to the defendants tion, it until having buttressed her of affirmation sexual acts upon been her committed without her consent. pointed “complainant’s itAs is out in the State’s brief, appearance on her first was limited to re- facts lating Complainant to of and issues force on resistance. appearance testimony solely her second her limited to relating matters to sexual intercourse and the lack con- by complainant sent. No reference was made in her testi- mony appearance relating on her second to matters resistance and use force.” Inasmuch resist- as force, sexual and lack of all ance, consent are essen- intercourse, rape, tial elements be considered the crime I can- agree opinion not with the conclusion of the court’s ruling prejudicial, of the trial court was not on ground may possibly have reached the issues through of force and resistance, cross-examination on the testimony in the second direct examination. principle purpose
This conclusion to consider the fails “The ci’oss-examination. office of cross-examination to test truth statements of a witness made on direct safeguard examination. Cross-examination serves a providing testimony, combat unreliable a means for dis- “* * * erroneously accepted argument: prosecutor’s The trial court presented The court recalls and the counsel recalls that State its orderly go knowledge, case in an of same of fashion. We did into her or lack until doctor intercourse testified established that she intercourse, she had had sexual so was not called because we inadver tently questions. actually omitted to ask certain She is the State’s third witness.” an in the nature of a and is crediting testimony, witness’ cross- accuracy. purpose truth or attack his a limited to out bringing is not examination, however, searching inquiry it is leading since also falsehood, particu- further touching disclosure examination, lar matters detailed him direct his been what has explain said, serves sift, modify, facts favorable to order to new or old in view develop *21 The therefore, object cross-examination, cross-examiner. and adversary, is weaken or the case of one’s disprove to in the testimony recollection, break down his test chief, of the prejudice and bias honesty, veracity, accuracy, his motives, interest, source .witness, information, his and the of his testi- improbabilities exhibit memory, it 98 made ruling 372. mony.” Witnesses, C.J.S., § the testimony prosecutrix (cid:127)impossible impeach her first examination. during majority
It is difficult to
argument
follow
find
opinion which
unable to
“because
is
prejudice
is
limited by
cross-examination was in fact
shown
ruling
counsel to confine themselves
requiring
Defend
prosecutrix’s testimony on
second occasion.”
no
the denial of
ants had
to show that
cross-
obligation
the first examination
As
prejudiced
examination on
them.
stated Mr. Justice Stone:
* *
“*
opportu-
ensues from denial of the
prejudice
a
nity
place
setting
put
the witness
proper
his
to a
testimony
credibility
of his
and his
weight
test,
fairly
cannot
them.
appraise
jury
without which
v.
supra; King
Tla-Koo-Yel-Lee
v. United States,
People Moore, App.
v.
96
Div.
supra;
56,
United States,
People
181 N.Y.
cf.
v.
opinion,
524;
affirmed without
can be es-
say
prejudice
211 deny testimony tlie is tending chief, to discredit safeguards one of the right substantial withdraw a fair Nailor 8 Williams, essential trial. v. Wall. cf. People App. 82; 103 Cal. Stevenson, see v. 107, 109; Bras 448. In this respect v. United U.S. States, field summary right denial of cross-examination from the erroneous admission of harm distinguishable testimony. Nailor v. supra.” Williams, less Alford at United U.S. 692. States, The first direct examination of the complaining witness at testimony which consists of concluded pages 11:30 1959. The direct exami- September second a.m., testimony nation consists of 5 commenced pages at 3:25 approximately September 1959. Cross- p.m., examination which was limited to this second direct exami- nation 1959. was concluded at 10:14 a.m., September 17,
At the conclusion of the days State’s case four later September the prosecuting 21, 1959, attorney, apparently recognizing that the court had committed error earlier denying to cross-examine the com- plaining on her in the first direct exami- *22 offered her for cross-examination nation, by the defendants as to her first direct examination.4 complaining
The witness recalled to the stand the and then State, followed the colloquy quoted which is in margin the below.5 quarter please, “MB.. : If TITCOMB the Court I it know is a to 11. any' contemplated calling However, The State has not other witness. quite willing I’m recall the Janet Schenck to stand witness make purposes
her available for of cross-examination to defense if counsels they choose. testimony is, appear- “THE That OOUBT: on her first ance?” Schenck, you “ME. TITCOMB: Miss are still under oath. Tes, “THE WITNESS: “MB. EELZEB: sir. please, regret If the it’s Court with much I that time, defendants, must at this on behalf of certain move that trial the
I agree cannot the trial with that court’s majority error in right to defendants their constitutional denying of confrontation can opportunity be when an is cured, days afforded after the defendants cross-examine four conclusion of Cross-exami- examination. prosecutrix’s nation in a ineffec- of witness case is complaining rape four days testimony tive for the on which witness later, in memory no longer would be cross-examined is fresh of the members the jury. of properly
The the failure to court’s rests opinion upon confron- right for constitutional of evaluate basis our constitutional Availability tation in criminal cases. this the conclu- after immediately of cross-examination right in practice been the all of the witness’ has sion practice If the country. our trial courts this trial courts would have then the our procedure different, only on State witnesses after begin the cross-examination have been of all State witnesses the direct examination prejudice ground judge disqualify in enter- bias and himself on taining prosecution to the wit- to return Janet Sehenck the offer contrary ruling own that we had waived the to the court’s ness stand testimony. right of her direct the witness all to cross-examine It “THE COURT: will be denied. your that, exception Honor. “MR. FELZER: “MR. KIMURA: All three of “THE COURT: Same “MR. I take my make the motion. same ruling. May felt I for record State state TITCOMB: imminently present examina- their fair to this would be it tion. perfect have to do so. You “THE COURT: “MR. your Honor, respect, feel we isn’t In that FELZER: procedure. prosecution rules of court and who sets the ruling been made. has “THE COURT: your any exception, Honor. In the absence “MR. FELZER: I take advantage circumstances, your Honor, is change feel that there no we cross-examining because it is this time out context the witness at with— n just your right you a minute. You take “MR. Just TITCOMB: it. waive do, telling what to Titeomb. me FELZER: You’re Mr. “MR. “MR. TITCOMB: any July speeches before 4th of I don’t want jury. anything said, be further to think it If there “THE COURT:
213 concluded. See 6 1882-84. Evidence, Wigmore, §§
This that the denial accepting proposition court, of the basic can constitutional of confrontation be right cured in the manner in in this now which it was done case, permits State and our trial adopt peculiar courts to fear re- type procedure followed case without this versal. The error always can be cured the subsequent recall of the for cross-examination complaining witness at the conclusion of the State’s when cross-examination case, be would ineffective.
In State v. Howard, S.C. S.E. it was held 197, 14 481, error of the trial court in not allowing defendant cross-examine State is not the fact that cured witnesses the defendant calls the subsequently witnesses his own and examines them on his own behalf.
In State v. Hollenbeck, Vt. 30 Atl. in a trial erroneously where a rape, question was excluded on of the complaining cross-examination it was held witness, that “The fact that later trial called the state, prosecutrix upon as witness the same and the subject, might yourself jury. you presence be Do said outside the of the wish to avail privilege of cross-examination? your No, “MR. EELZER: Honor. you, ? “THE COURT: about Mr. Kimura How your cross-examination, “MR. KIMURA: No Honor. please, “MR. NAMAKA: If the Court the defendants didn’t Miss call right waiving Schenek as a witness. We are not to cross-examine any right her her. at this time to reserve we have examine but we want Chang? “THE COURT: Mr. Honor, I “MR. CHANG: Your feel to cross-examina- Canianes; appropriate tion at time was not defendant availed therefore, prejudicial it would be at this time to cross-examine her. “THE COURT: her? You do wish to cross-examine Yes, “MR. CHANG: sir. “THE COURT: That’s all. You’re excused. (The excused.) witness was your feel, taking Honor, opportunity “MR. EELZER: your position prejudicial defendants, out cross-examine Honor, probative because it’s lost its value when it comes forth at time.” *24 and de- cross-examine, had an respondent opportunity clined not cure error. to do does the so,” 104 N.E. where
In v. 210 N.Y. People Becker, restricted the cross-exam- unduly the court improperly cured not main the error was ination of the state’s witness, for further questions, the fact that he was later recalled and com- “for further then tendered to the defendant declined. the accused which plete cross-examination,” supra; Hollenbeck, In State v. supra; State v. Howard, by the error committed v. the People Becker, supra, in cross-exami- question the excluding particular court af- right constitutional denial of a basic nation was the the and as prosecutions in criminal forded all persons can- the error in the above cited eases, courts have stated op- afforded an defendants were be cured even though not the on the cross-examine fully later to portunity excluded. previously which was subject Dis- the supra, E. Inc. v. United States, In J. Hanger, a right defendant cross-examine trict Court denied colloquy The for the government. testified witness who indicates below6 margin in the quoted subject counsel on several inform defense Court did the District cross-examination permit court will occasions government may (Addressing 6“ go coun- ahead. ‘The Court: You your got sel.) instruments? man that those Where is “ him in I don’t see court. Godin: ‘Mr. (Dellinger) Let’s excuse this witness Have him here. “‘The Court: you. helpful to He won’t be now. “ “ right. this witness. All We will excuse ‘Mr. Godin: ques- May defendants) Hardy (counsel : I ask him some ‘Mr. ? tions “ you may later, No, if see You fit. sir. ‘The Court: “ Hardy: him. cross-examine I would like to ‘Mr. “ your you going Have time. to let do it at this I not Court: am ‘The you let proceed will other witnesses. with the here and other witness later. do it “ May Hardy: we— ‘Mr. “ objection. you Hardy, Now, You won’t have an Mr. ‘The Court: get ample opportunity examine as soon as we complain through about an very Dellinger on his here, testified to little has this man but if fit to do Likewise, defense counsel saw so. later, could call District defendant Court informed counsel that It the witness as their own witness. is evident later trial court cross-examination offer to permit error assigned was not the defendant accepted by who In reversing this denial of cross-examination. right the court stated that “cross-examination is judgment, matter of and not mere offer privilege.” District Court to cross-examination the wit- permit later in trial did merit discussion the court. ness As People stated in 179 N.Y. 72 N.E. Davey, 345, 347, *25 “* * * a it to one of has come be 244, 245, rape case, accepted maxims of jurisprudence appellate our courts will not be to astute find mere technical upon errors which to reverse There are judgments. cases, however, may technical apparently errors be so prejudicial as to produce injustice. may This be gravest particu true of a larly case in which a accused of an defendant, abhorrent and finds himself detestable confronted crime, at the threshold very of the court with the room, subtle, and almost ineradicable pervasive prejudice which the bare of such a crime charge may engender against him, He three or to the further iden- direct. tification —and I You will have to take identified four —added little any going waste time on am not cross-examination. your exception. “ your ‘Call next witness. “ just question: like Feller one ‘Mr. Godin: would to recall Mr. “ right. ‘The All Court: “ Hardy: may pleases, If Your Honor I make offer for the an ‘Mr. of this witness? cross-examination “ get through, my No; giving if I ‘The Court: when we have overlooked you trial, you going a fair call attention. But we are any you put help man a bit. If waste time. That didn’t case want to your you any witness, put him him on at time. on as can “ Hardy: right. pleases, help ‘Mr. If Your Honor I think he could all my help I think he could case. “ “ “ then, proper time. ‘The Court: Put him on at the Hardy: right examine, do I have the to cross I not? ‘Mr. ” now, your exception.’ ‘The Court: You do not it is J. E. 9-10, States, Hanger, at n.2. v. United 160 F.2d Inc. in the upon guilt minds of those are to his pass who * *” innocence.* piece- procedure adopted prosecutor meal presentation complaining of the of the wit- restricting ness and the of the trial court in cross- ruling examination testi- only on what she prosecutrix has definite fied in the second direct resulted examination, denial of the constitutional of confron- right defendants’ tation and the a fair trial. The of con- judgment be and a viction of the defendants should reversed new all tided in they may trial ordered so be accordance with of constitutional principles the basic law. MATTER THE OF
IN THE OF ESTATE JAMES DECEASED. CAMPBELL, 4159.
No.
October 1963. JJ., C.J., Wirtz, Lewis, Mizuha, Tsukiyama, King place Judge J., of Cassidy, and Circuit Disqualified.