State v. Kahalewai

516 P.2d 336, 55 Haw. 127, 1973 Haw. LEXIS 154

• Court: Hawaii Supreme Court
• Decided: November 30, 1973
• Docket: NO. 5323
• Status: Published

Opinions

OPINION OF THE COURT BY

RICHARDSON, C.J.

Defendant-appellant Richard Kahalewai was indicted for murder in the first degree under HRS §§ 702-1 and 748-1. The jury found him guilty of murder in the second degree. From a denial of his motions for judgment of acquittal, judgment notwithstanding the verdict and for a new trial, this appeal was taken.

We affirm.

Defendant appealed, specifying three citations of error. He first argues that the trial court erred in denying his motions for judgment of acquittal under Rule 29(a), HRCrP¹ made at the close of the prosecution’s case, at the close of all evidence, and in the form of a motion for judgment notwithstanding the verdict after a verdict of guilty was returned. Second, he argues that the jury’s verdict was based on insufficient evidence. In State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970), we distinguished between the different standards an appellate court should use in reviewing the denial of a motion for judgment of acquittal and in reviewing a guilty verdict.

As to the motion for acquittal, we have held that:

This court will not disturb the ruling of a lower court if the evidence of the prosecution is such that “a reasonable mind might fairly conclude guilt beyond a reasonable doubt. ”State v. Rocker, 52 Haw. at 346, 475 P.2d at 690. At the close of the prosecution’s case, it had been

established that about midnight on November 22, 1970, the defendant went to an apartment in the Coco Palms Hotel occupied by the victim Carole Ann McLaughlin, Tommy Morita and another couple. Shortly after he entered the apartment, a fight broke out between the defendant and Morita. The four occupants fled the apartment, followed by the defendant carrying a knife. In the parking lot below, the defendant who had been stabbed several times by Morita, stabbed the victim. An eight-inch knife blade which was imbedded in the right side of her abdomen was later removed at Queen’s Hospital.

From these facts, the trial court concluded that a prima facie case had been established and that the evidence would justify a jury verdict of guilty of attempted murder in the second degree beyond a reasonable doubt. We affirm the court’s denial of the motions.

The test of a criminal conviction on appeal is whether there is substantial evidence to support the verdict. State v. Rocker, supra at 347, 475 P.2d at 691. Defendant attempted to prove that because he was under the influence of drugs at the time, he was incapable of forming a specific intent to kill with malice aforethought, and therefore was not guilty of attempted murder.

We find the evidence adduced in this case sufficient to support the conviction.

Third, defendant contends that denial of his motion for a new trial was erroneous because the prosecutor’s misstatements of evidence, statements outside the scope of the evidence, and misstatements of the law during the course of the trial had a cumulative prejudicial effect upon the jury so as to deprive the defendant of his right to a fair trial. We have held that even though a prosecutor’s remarks may have been improper, any harm that might have been caused can be cured by the court’s instructions to the jury. In such cases we have applied:

... the ordinary presumption that the jury abided by the court’s admonition to disregard the statement. “The jury is sworn to render verdict according to law, and, by our statute, must receive the law from the Court. When the Court has instructed that something which they have heard is not to be considered by them, we must presume in favor of their oath and public duty. ” State v. Cavness, 46 Haw. 470, 473, 381 P.2d 685, 686-7 (1963) (citations omitted).

On the other hand, we believe that although no single misstatement or other erroneous remark standing alone would have sufficient prejudicial weight to deprive the defendant of a fair trial, the cumulative weight of such errors may create “an atmosphere of bias and prejudice which no remarks by the trial court could erase.” Scott v. State, 47 Ala. App. 509,_, 257 So.2d 369, 371 (Crim. App. 1972). On appeal we must determine whether the cumulative effect of prejudicial conduct going to the issue of guilt is so strong that it overcomes the presumption that the curative remarks of the court have rendered the prejudicial remarks harmless.

We find that taken in the context of the entire record, the prejudicial effect of the prosecutor’s remarks was removed by the prompt action of the trial court, and moreover was rendered harmless by the overwhelming evidence of the defendant’s guilt.

Helen B. Ryan (Ryan & Ryan of counsel) for defendant-appellant. Milton B. Crotts, Deputy Prosecuting Attorney (Barry Chung, Prosecuting Attorney, with him on the brief) for plaintiff-appellee.

Affirmed.

1 The rule in pertinent part states:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.