Appeal from First Circuit Court; Honorable Masato Doi, Judge.
Richardson, C.J., Kobayashi, Ogata, Menor and Kidwell, JJ. Opinion of the Court by Richardson, C.J.
In appealing his conviction of assault in the first degree, Francis Moku Malani, Jr., cites three errors: first, that a pre-arrest photographic display was unconstitutional because it was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification"; second, that a post-arrest photographic display was similarly unconstitutional; and third, that the Hawaii Constitution required the presence of his counsel when the post-arrest photographic display was conducted. Based on the three alleged errors, motions to suppress any eyewitness identification*fn1 were made at a pretrial hearing and at trial. Both motions were denied by the trial court.
On February 25, 1974, at 8:30 p.m., Jane Doe*fn2 was working alone in her business office located in an apartment building when a "very large man" walked in. Holding a gun in his hand, this man told Doe that she was about to die. Doe approached this man and grabbed his arm. After a short intense struggle, the man sat on Doe and choked her. She bit one of his fingers as hard as she could and then lost consciousness. Regaining consciousness about an hour later, Doe crawled to her neighbors who called the police. The police took Doe to Kaiser Hospital.
At Kaiser, a pelvic examination indicated recent sexual
intercourse. As a result of the attack, Doe suffered numerous injuries all over her body, including a serious one to her right arm. Doe stayed in the hospital for nearly a month.
That first night at the hospital, the police only briefly questioned Doe since the hospital staff had advised them that she was in no condition to talk to anyone. The police did obtain, however, some information from Doe: that the assailant was a huge man, possibly weighing over 300 pounds; that he was of apparent Hawaiian ancestry; and that she had heard rumors that a Mr. Pacarro who was opposing her in a lawsuit had threatened her.
The next day, on February 26, 1974, Doe was interviewed by detective Gonzalez who afterwards showed her photographs (front and side profiles) of large males having similar build and racial ancestry. Feeling "80 to 90 per cent sure," Doe picked the photo of appellant as that of her assailant. That photo was approximately six years old.
On March 1, 1974, appellant was arrested on charges of rape in the first degree and assault in the first degree. Appellant had a badly cut finger which he claimed resulted from a work injury occurring shortly after dawn on February 26, 1974. Later that day, detective Gonzalez brought more photographs to show to Doe. Again she picked the photo of appellant, positively identifying appellant as her assailant. That photo was a few hours old.
Appellant filed a motion to suppress any eyewitness identification by Doe on the grounds that the photographic displays on February 26 and March 1, 1974 were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and that appellant's counsel should have been present at the March 1 photographic display. A hearing on the motion was held on May 3 and 10, 1974. The motion was denied. A trial by jury was held on June 17, 18, and 19, 1974, at which time Doe positively identified appellant as her assailant. At the end of the trial, appellant renewed his motion to suppress. The motion ...