Appeal from Third Circuit Court; Honorable Shunichi Kimura, Judge; Criminal No. 5384.
Padgett, Acting C.J., Burns, J. and Circuit Judge Chang in place of Chief Judge Hayashi, Disqualified.
The three appellants here were convicted of murder in the first degree after a jury trial in Hilo.
On or about July 29, 1977, Benny Madamba died from a blow to the head which fractured his skull. On August 19, 1977, Madamba's badly decomposed body which was wrapped in bedding, was found in a canefield near Keaau, Hawaii. The bedding was traced to one Louis Mendonca and on August 29, 1978, after a grant of immunity and police protection, Mendonca told the police that he and four Honolulu men, the appellants and one Kenneth Edward Lendt, picked up Madamba in Fely's Bar in Hilo and took him to Mendonca's house. Mendonca did not see Madamba killed but he did see him struck and there were several blood stained objects around the house. Madamba had been taken into a bedroom and was being beaten when Mendonca left. Subsequently, he was told that everything was "pau" and was asked for a recommendation as to where to dump Madamba. Mendonca claimed that while cleaning up the house after the incident, the group discussed an alibi which centered on leaving Fely's Bar in search of a gambling game and finding none, dropping Madamba off in town in back of the Bar.
As a result of Mendonca's statements, two Honolulu police detectives sought out AhLo and Palama and found them in a pool hall. They asked them to go into the backroom of the pool hall (which they voluntarily did) and they then questioned them, getting statements
from them that they had gone to Hilo on July 29, had met Madamba at Fely's Bar, had left the Bar with him, that he wanted to go to a game but that they declined to join him and dropped him in town near some hotels.
Indictments were returned against AhLo, Kealohapauole, Palama and Lendt for the offenses of murder, hindering prosecution in the first degree and conspiracy to commit both of the preceding. Motions to sever were made and Lendt's trial was severed. Appellants gave notice of an alibi defense.
AhLo and Palama sought to have their August 3, 1977 statements suppressed but the court denied the same on the ground that they were voluntary. At trial, those statements were put in evidence as were photographs of Madamba's decomposed body, Madamba's skull and a video tape of the actual autopsy with the soundtrack deleted.
During the course of the trial, one Joseph D. Moniz was called as a witness. After he had been testifying for a period of time, the defense objected that he was not on the pretrial witness list. The court suspended his testimony to allow a competency examination. The defense filed a motion for mistrial or in the alternative, to strike his testimony but the defense later orally deleted the alternative of striking his testimony. Nevertheless, the court refused the mistrial but ordered the testimony stricken and cautioned the jury.
On May 1, 1978, the prosecution announced that Lendt would testify for the State. Motions for continuance or for counsel to withdraw were filed but denied. In point in fact, Lendt was not called as a witness for some three weeks. On May 22, 1978 after Lendt had testified, the appellants attempted to discharge their attorneys and their attorneys moved to withdraw from the case. The attorneys claimed that there were irreconcilable differences between them and their clients in that the clients wanted to go ahead with the alibi defense and the attorneys did not. The attorneys also claimed that there were ethical problems in that they no longer had any belief in the truth of their clients' alibi defense. After a lengthy hearing, the court below refused to allow counsel to withdraw. Appellants did not take the stand in support of their alibi defense.
At final argument, Appellant Kealohapaole's trial counsel was not permitted to use a chart to illustrate the matter of reasonable doubt during his argument. The conspiracy charges were not submitted
to the jury and no clarifying instructions with respect to the evidence of conspiracy were asked or given. Jury verdicts were returned, finding the defendants guilty of murder and of hindering prosecution and each was sentenced to life in prison.
We have carefully considered each of the contentions of error raised by appellants and have concluded that no error has been shown. Accordingly, we affirm the judgment below.
The first contention is that the statements of AhLo and Palama, taken on August 31, 1977, should have been suppressed because no adequate Miranda warning was given before the policemen began to question the two individuals. The warning given was inadequate because the two appellants were not told specifically that if they could not afford counsel, counsel would be appointed by the court for them. If, therefore, they were questioned in a custodial situation, their statements should have been suppressed. We uphold the ruling of the court below denying suppression because it is obvious that the questioning of the appellants was not in a custodial situation.
Appellants argue that because of Mendonca's statements, the investigation had been focused upon them, and therefore, the questioning was custodial, citing a dictum State v. Kalai, 56 Haw. 366, 537 P.2d 8 (1975). However, in the later case of State v. Patterson, 59 Haw. 357, 581 P.2d 752 (1978), the court pointed out that focus, standing alone, would not trigger the application of the Miranda rule. The court then stated:
In any event, whether the defendant was in custody or otherwise deprived of his freedom of action for Miranda purposes is to be determined from the totality of the circumstances, objectively appraised. . . . These would include the place and time of interrogation, the length of the interrogation, the nature of the questions asked, the conduct of the police, and all other relevant circumstances.
59 Haw. at 361. Here, the testimony indicates that the officer who initiated the conversation, while familiar with the Miranda rule and the necessary warning that must be given thereunder, gave only a loosely worded cautionary instruction to the appellants. This indicates that he did not think the situation was a custodial one. No statement was made to the effect that the ...