State v. Churchill

664 P.2d 757
Hawaii Intermediate Court of Appeals·Decided July 27, 1983·No. 8322 and 8332·Published·Cited by 11 cases

Opinion

664 P.2d 757 (1983)

STATE of Hawaii, Plaintiff-Appellee,
v.
Phillip Winston CHURCHILL and Todd Roger Swanson, Defendants-Appellants.

Nos. 8322 and 8332.

Intermediate Court of Appeals of Hawaii.

June 8, 1983.
As Amended July 27, 1983.

*759 Erick T.S. Moon, Deputy Public Defender, Honolulu (Christopher Bouslog, and Alvin T. Sasaki, Deputy Public Defenders, Honolulu, on opening brief, Arthur T. Trask, Jr., Deputy Public Defender, Honolulu, on reply brief), for defendant-appellant Phillip Winston Churchill.

Michael A. Weight, Honolulu, for defendant-appellant Todd Roger Swanson.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, City and County of Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Defendants Phillip Winston Churchill (Churchill) and Todd Roger Swanson (Swanson) appeal from their convictions of manslaughter. Hawaii Revised Statutes (HRS) § 707-702 (1976). Defendants contend that the trial court erred in (1) constricting the scope of voir dire examination of prospective jurors by the prosecutor and defendants; (2) refusing an instruction offered by defendant Churchill[1] relating to how the jury should analyze evidence pertaining to one defendant and not to the other; (3) instructing the jury on the law of accomplices; and (4) denying defendants' motions for mistrial based on prosecutorial misconduct. We find no reversible error and affirm.

The evidence indicates that on August 29, 1980 defendants, in Swanson's automobile, picked up Kenneth N. Morse (Morse) and Robert A. Mitchell (Mitchell) at a bus stop near Little Orphan Annie's, a bar in the airport industrial area of Honolulu. The four drove to a liquor store where they remained for approximately 10 to 20 minutes before continuing on towards Waikiki. Churchill drove while Swanson sat in the front passenger seat and Mitchell and Morse rode in the back seat. When they got to Ala Moana Park near the intersection of Ala Moana Boulevard and Piikoi Street, Churchill stopped the car and the occupants emerged and began fighting among themselves. In the course of the fight, Churchill kicked Morse in the head at least twice while Swanson was holding Morse down on the ground and hitting him. Churchill and Swanson subsequently left the scene. In their absence, the police and a doctor arrived and Morse was pronounced dead at the scene at 12:05 a.m., August 30, 1980. A few hours later, Churchill returned to look for his glasses. He and Swanson, who was then asleep in the car, were arrested for murder. An autopsy performed later that morning indicated the cause of death to be brain injury resulting from head trauma.

Defendants were jointly indicted and tried for murder and the jury found them guilty of manslaughter.

I.

Defendants argue that the trial court erred in not allowing counsel, including the prosecutor, to examine prospective jurors on their attitude toward general propositions of criminal law such as burden of proof and the right of the defendants to choose not to present any evidence, and in denying defense counsel the opportunity to examine into certain jurors' attitudes towards incidents occurring between "locals" and "non-locals."

The trial court restricted voir dire for the reasons expressed in the following statement to counsel made during the impaneling of the jury on April 9, 1981.

THE COURT: * * * Regarding the nature of the voir dire questions, we're now at the stage where in effect prospective jurors that come up are being asked on a one on one basis. And understand[ably] it takes longer examining the panel as a whole. And judging from *760 what occurred on Tuesday, when we ended up selecting, we disposed of only three peremptory challenges.
* * * * * *
Questions that go to the bias[es] and prejudices of the prospective jurors in determining those that have biases and prejudices, that is clearly the function of voir dire, and the Court has no objections [to] both sides questioning along those lines. But the Court is concerned about questions that go to instructing the prospective jurors on the law.
At the outset, before voir dire, the Court has given preliminary instructions, for example, such as the principle [of] the presumption of innocence and in the course of voir dire, more so tha[n] has been recorded in the past, the Court has allowed considerable leeway with respect to questioning the jurors, prospective jurors, on matters that normally are considered instructions [on] the law. So up to this point, all of the prospective jurors have received some instruction on the principles of law of that type.
One of my concerns is the extensive questioning on such principles of law, does tend to give undue emphasis [to] certain areas of the law. And of course, one of the principal rules of jury instruction is that all of the instructions are to be considered as a whole without undue emphasis on one as against the other.
I think that aspect is — at this point, the Court will prohibit questions tending to instruct or educate the jurors on the law to be presented at voir dire. For that reason, the Court will require prosecutor with respect to the further questioning of prospective jurors on the voir dire, that questions that go toward instructing or educating the jurors on the law should not be presented. I know there is strong feeling by counsel and you have strong objections but I will at this time present the opportunity [to] counsel to voice whatever objections they have.
* * * * * *

(Transcript, Vol II, p. 204)

The law is well established in this jurisdiction that the trial court is vested with discretion to regulate voir dire examination so as to keep the questioning by counsel within reasonable bounds and to confine it to assisting in the impaneling of an impartial jury. Rule 24(a), Hawaii Rules of Penal Procedure (1977); State v. Altergott, 57 Haw. 492, 559 P.2d 728 (1977); State v. Le Vasseur, 1 Haw. App. 19, 613 P.2d 1328, cert. denied, 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479, reh'g denied, 449 U.S. 1134, 101 S.Ct. 958, 67 L.Ed.2d 122 (1980). Absent abuse of that discretion and a showing that the rights of the accused have been substantially prejudiced thereby, the trial judge's rulings as to the scope and content of voir dire will not be disturbed on appeal. State v. Lincoln, 3 Haw. App. 107, 643 P.2d 807 (1982).

In State v. Altergott, supra, 57 Haw. at 500-502, 559 P.2d at 734-735, the supreme court said:

In ruling as to a particular question, the trial judge must be guided in very large part by his appraisal of the usefulness of the question in achieving the selection of an impartial jury, which in turn will depend upon his judgment of the likelihood that the question will disclose a mental attitude which would be significant in exercising challenges, whether for cause or peremptory. The question for us is whether such a likelihood existed here and whether its existence should have been so apparent to the trial judge that his refusal to permit the question was an abuse of discretion.
* * * * * *
Although the Robinson court [

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