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State v. Naeole

October 3, 1980

STATE OF HAWAII, PLAINTIFF-APPELLEE,
v.
ROTHWELL K. NAEOLE AND ROBIN SIDNEY SAYA, DEFENDANTS-APPELLANTS



Appeal from First Circuit Court; Honorable Walter M. Heen, Judge.

Richardson, C.J., Ogata and Menor, JJ., Retired Justices Marumoto and Kobayashi, Assigned by Reason of Vacancies. Opinion of the Court by Menor, J.

Menor

Defendant Saya was convicted on one count of murder under HRS § 707-701 (1976), on six counts of attempted murder under HRS §§ 705-500 and 707-701 (1976), and of carrying a firearm on his person without a permit under HRS § 134-9 (1976). Defendant Naeole was convicted of carrying a firearm without a permit or license under HRS § 134-9 (1976). Both defendants' motions for judgment of acquittal and a new trial were denied by the trial court. They now appeal from the judgments and sentences of the trial court.

The charges against the defendants arose from a shooting episode which occurred on January 2, 1976, at Tommy's Lounge, a bar on North Hotel Street in downtown Honolulu. One of the victims of the shooting was Joseph Miha who died from his injuries. The others with varying degrees of gunshot wounds were Ernest Miranda, Walter Kaeo, Police Officer Jonathan Almadova, Theresa Manalo, Hiroshi Miyashiro and the bar owner, Satoshi Tomasa.

I.

We consider first the defendants' contention that their convictions were not supported by substantial evidence. See State v. Laurie, 56 Haw. 664, 548 P.2d 271 (1976); State v. Cannon, 56 Haw. 161, 532 P.2d 391 (1975).

"Substantial evidence" as to every essential element of the crime charged is credible evidence which is of sufficient quality and probative value to enable a man of reasonable caution to reach a conclusion. Shinn v. Yee, Ltd., 57 Haw. 215, 219, 553 P.2d 733, 737 (1976). It is evidence which a reasonable mind might accept as adequate to support such a conclusion. State v. Merseal, 167 Mont. 412, 538 P.2d 1366 (1975). And whether substantial evidence exists to support a conviction is to be determined by an appellate court upon review of the evidence adduced in the light most favorable to the prosecution. Byrnes v. United States, 327 F.2d 825 (9th Cir. 1964).

More specifically, defendant Saya contends that his alleged connection with the shooting was based on less than substantial evidence. Having allowed for the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact from the evidence adduced, State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970), and having viewed the evidence in the light most favorable to the government, Byrnes v. United States, supra, we find that there was ample evidence to support the jury verdict against defendant Saya. We need not discuss in great detail the testimony upon which his conviction is based. It is undisputed that shots were fired both within and outside of Tommy's Lounge, and it is clear that the firing of the shots was intentional. Ruby Scanlan who was in the bar at the time testified that defendants Saya and Naeole were inside the bar immediately before the outburst of shooting; that both men were armed; and that she saw defendant Saya actually fire his handgun a number of times. She could not recall whether defendant Naeole also did any shooting. Joseph Miha, Theresa Manalo, and Conrad Tomasa were struck by the bullets fired inside the establishment.

Ernest Miranda was also inside the bar when the gunfire started. He had gone there earlier with Walter Kaeo and Joseph Miha. Although he made no identification, he corroborated Scanlan's testimony regarding the presence of two armed men. One of them, he testified, came from the back of the bar holding an object in his left hand. Miranda said that he "saw flame" coming from the object, heard a gunshot, and saw Miha fall off his chair. Hearing other shots being fired by the same gunman, Miranda immediately took flight.

Miranda and Walter Kaeo were shot outside while running from the bar. The latter had been in an argument earlier with defendant Saya. Albert Jensen, an off-duty military policeman who was waiting for his bus directly across the street from Tommy's Lounge, heard the shots from inside the bar, after which he saw two men [Miranda and Kaeo] run out of the bar. Two other men followed. One of them shot first at Kaeo, then at Miranda, and finally at Officer Almadova who, while patrolling his beat, had headed towards the bar to investigate the gunshots. Jensen identified defendant Saya as the gunman who shot at Miranda, Kaeo, and Almadova. Hiroshi Miyashiro, a passerby, was struck by a ricocheting bullet.

Defendant Naeole, for his part, contends that the record is devoid of any evidence showing that the firearm he was charged with carrying had a barrel length of less than twelve inches. We think there is merit to his contention. He had been charged under HRS § 134-9 (1976) which proscribes the carrying of a pistol or revolver without a permit. A "pistol" or "revolver" is defined by HRS § 134-1 (1976) to mean any firearm "with barrel less than twelve inches in length and capable of discharging loaded ammunition or any noxious gas." The gun which he was alleged to have been carrying was never recovered and consequently could not be introduced into evidence. Witnesses, however, described it as a "rifle," a "long gun," a "handgun with long barrel," and a gun which was "not as long as a cowboy pistol." We think the descriptions given to be of insufficient definiteness to sustain the charge under HRS § 134-9. To warrant a conviction under this particular statute, the firearm must have been proven,

beyond a reasonable doubt, to have had a barrel length of less ...


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