State v. Lester

649 P.2d 346, 64 Haw. 659, 1982 Haw. LEXIS 170

• Court: Hawaii Supreme Court
• Decided: June 22, 1982
• Docket: NO. 7313
• Status: Published

Opinions

OPINION OF THE COURT BY

LUM, J.

This case involves the criminal trial and convictions of defendants-appellants Kenneth A. Gaut and Donald Lester. They were indicted along with others¹ for having committed the crime of the murder of Michelle Lester (by a hired killer)² under § 707-701³ and § 706-606(a)(iii),⁴ Hawaii Revised Statutes (HRS). The jury found Gaut guilty of manslaughter, and Lester guilty as charged.

From their convictions they filed this joint appeal, raising numerous questions concerning the propriety of their convictions. We discuss herein these questions except those patently without merit. We affirm.

.1.

The event which uncovered the bizarre agreement to murder Michelle Lester, wife of defendant Lester, occurred in the early morning of August 27, 1978 with the discovery of her death by Honolulu police officer Kenneth Ikehara in a vehicle near the Wilson Tunnel. Present in the vehicle with her at that time were coindictee Mori and defendant Gaut. The cause of her death was later determined to be strangulation.

In the trial of the two, conflicting versions were presented to the jury.

The government’s case was based primarily upon the testimonies of co-indictees Tuttle, Anderson and Mori, all of whom were immunized from prosecution under § 621C-1 (1976),⁵ HRS. Essentially, their testimonies described the circumstances which culminated in an agreement between Lester and the other co-indictees to have Michelle killed for a price of $7,000 to be paid by Lester and the circumstances which followed their conceived plan, in which Michelle was invited by Tuttle to a party, and subsequently invited by Gaut and Mori for a car ride, during which time defendant Gaut struck and strangled her.

The government’s case against Lester was strengthened by the introduction of a taped conversation between Lester and Tuttle in a public park. At the behest of the police, Tuttle had earlier agreed to arrange a meeting with Lester and to tape their conversation on a tape recorder strapped to her person. The conversation revealed incriminatory statements by Lester concerning the agreement.

In his behalf, Gaut admits to the discussion and planning of Michelle’s death, except he claims he was playing along and was just “B.S.’ing.” He admits to striking Michelle, but he points to Mori as the culprit who strangled Michelle.

Lester denied making a serious offer to have his wife killed; he denied having hired anyone to kill his wife.

II.

Lester claims that the warrantless recordation of his conversation with Tuttle violates the fourth amendment of the U.S. Constitution,⁶ article I, sections 6⁷ and 7⁸ of the Hawaii State Constitution and HRS chapter 803, part IV (Supp. 1981) (“Electronic Eavesdropping”), and that it was error for the court not to have granted his motion to suppress the conversation.

Legal analysis to Lester’s contentions must necessarily begin with a determination of how his verbal statements were obtained by the government. Lester’s incriminatory statements were made face to face with a government agent⁹ (Tuttle) in a public park. Tuttle willingly taped to her body a recording device and consented to have the conversation recorded. Lester, on the other hand, was not aware of the hidden device and certainly did not consent to have the conversation taped. The tape was willingly produced by Tuttle during the trial.

As can be seen, one of the parties was a willing participant and consented to the eavesdrop.¹⁰ Consensual eavesdropping or participant monitoring, see Greenwalt, The Consent Problem in Wiretapping and Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in a Conversation, 68 Colum. L. Rev. 189 (1968), is commonly used by law enforcement officials in securing incriminatory statements against a suspect. See A. Westin,Privacy &? Freedom (1967) and Enker, Controls on Electronic Eavesdropping - a Basic Distinction, 2 Israel L. Rev. 461 (1967). The overwhelming weight of authority have upheld these warrantless consensual or participant eavesdrops. See Annot. 97 ALR2d 1283, section 10 (1964).

Even in federal proceedings, under the federal wiretap statute,¹¹ court approval is not required to effectuate this type of interception, 18 USC § 251 l(2)(c), On Lee v. United States, 343 U.S. 747, 753-54 (1952), although such interception may be illegal by statute in state proceedings. See Commonwealth v. McCoy, 442 Pa. 234, 275 A.2d 28 (1971).

The American Bar Association recommends that the use of electronic techniques by law enforcement officers for the overhearing or recording of wire or oral communications with the consent of one of the parties be permitted. § 4.1, ABA Standards Relating to Electronic Surveillance, Approved Draft, 1971.

A.

Participant or consensual monitoring has withstood constitutional scrutiny by the U.S. Supreme Court on the basis that no eavesdropping is involved since the government agent is free to testify to what was heard and the tape merely preserves his credibility, as evidenced by the following pertinent statements:

Indeed this case involves no “eavesdropping” whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an agent who was there with petitioner’s assent, and it neither saw nor heard more than the agent himself.

Lopez v. United States, 373 U.S. 427, 439 (1963).¹²

Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U.S., [293] at 300-303. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with the defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or.by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

United States v. White, 401 U.S. 745, 751 (1971),¹³ Justice White for the plurality.

Nor does the Constitution protect the privacy of individuals in respondent’s position. In Lopez v. United States, 373 U.S. 427, 439, we held that the Fourth Amendment provided no protection to an individual against the recording of his statements by the IRS agent to whom he was speaking. In doing so, we repudiated any suggestion that the defendant had a “constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment,” concluding instead that “the risk, that petitioner took in offering a bribe to [the IRS agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.” The same analysis w'as applied in United States v. White, 401 U.S. 745, to consensual monitoring and recording by means of a transmitter concealed on an informant’s person, even though the defendant did not know that he was speaking with a Government agent. . . .

Justice Stevens in United States v. Caceres, 440 U.S. 741, 750 (1979).¹⁴

We reject Lester’s claim on this issue, and we see no compelling reason to afford greater minimum protection to the instance at hand. State v. Santiago, 53 Haw. 254, 265, 492 P.2d 657, 664 (1971).

B.

Lester urges that under the invasion-of-privacy protection under article I, section 7 of the Hawaii Constitution, all electronic eavesdropping must be by warrant, supported by probable cause, with a description of the communication sought to be intercepted, citing Stand. Comm. Rep. No. 55,2d Hawaii Constitutional Convention, reprinted in I Proceedings of the Constitutional Convention of Hawaii of 1968, at 232 (1968); State v. Roy, 54 Haw. 513, 510 P.2d 1066 (1973); State v. Stachler, 58 Haw. 412, 570 P.2d 1323 (1977).

The pertinent language of the aforementioned report is hardly supportive of his claim for its states:

Several proposals sought to secure all persons against unreasonable interceptions of their communications or other invasions of their privacy. Your Committee recognizes the need for certain protections of the individual’s right to privacy in the context of today’s society. The tremendous growth of the electronic communications technology along with a corresponding growth of electronic surveillance techniques make possible the ready encroachment upon a person’s private conduct and communication. The recently enacted Hawaii statute prohibiting wiretapping and eavesdropping by private persons as well as law enforcement officials protects the individual’s communications from interception, and your Committee recognizes that the legislature took proper initiative to legislate protection in that area under our existing constitutional provision. . . . Your Committee believes that a specific protection against communications interception in the Constitution may be somewhat narrow and limiting and therefore recommends a broader protection in terms of right of privacy. . . .

Your Committee is of the opinion that inclusion of the term “invasions of privacy” will effectively protect the individual’s wishes for privacy as a legitimate social interest. The proposed amendment is intended to include protection against indiscriminate wiretapping as well as undue government inquiry into and regulation of those areas of a person’s life which are defined as necessary to insure “man’s individuality and human dignity.”

I Proceedings of the Constitutional Convention of Hawaii of 1968, at 233-34 (emphasis added).

We note first of all that the inclusion of the term “invasion of privacy” to the 1968 amendment was intended to protect against indiscriminate wiretapping (emphasis added) by the government as well as undue government inquiry into those areas of a person's life which are defined as necessary to insure man’s individuality and human dignity.

Our inquiry must also focus upon whether participant monitoring is an invasion of privacy under Hawaii’s constitution.

Appellant Lester cites People v. Beavers, 593 Mich. 554, 227 N.W.2d 511 (1975), cert. denied, 423 U.S. 878 (1975); State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978); State v. Glass, 583 P.2d 872 (Alas. 1978). These state courts have interpreted their right-to-privacy provisions in their constitutions as imposing a warrant requirement.¹⁵

While these cases are instructive, we are not persuaded that the rationale and conclusion reached by those courts are controlling. State constitutions must be construed with due regard to the intent of the framers of the constitutions. State v. Miyasaki, 62 Haw. 269, 281, 614 P.2d 915, 922 (1980).

The right-to-privacy provision of article I, section 6 relates to privacy in the informational and personal autonomy sense, encompassing the common law right to privacy or tort privacy, and the ability of a person to control the provacy of information about himself, such as unauthorized public disclosure of embarrassing or personal facts about himself. Stand. Comm. Rep. No. 69,1 Proceedings of the Constitutional Convention of Hawaii 1978, at 674-76 (1978). It concerns the possible abuses in the use of highly persona] and intimate information in the hands of government or private parties. Comm, of the Whole Rep. No. 15, I Proceedings of the Constitutional Convention of 1978, at 1024 (1978).

Whereas article I, section 7 is limited to criminal cases, Stand. Comm. Rep. No. 69, supra; it is to be construed in light of the language of Katz v. United States, 389 U.S. 347 (1967), regarding reasonable expectation of privacy, in which privacy is to be used not in the sense of a fundamental right, but as a test of whether the prohibition against unreasonable searches and seizures applies. Comm, of the Whole Report No. 15, supra at 2024.

Given this obvious distinction, we conclude that Lester’s taped conversation is without reasonable expectation of privacy (see Part A) and is not protected conversation under Hawaii’s constitution.

C.

Neither do we find merit to Lester’s argument that the use of the recording device by the government constituted “bugging,” in violation of Hawaii’s Wiretap Law, HRS §§ 803-41 to 803-50. While “bugging” is defined as the interception of oral communication by concealed microphones, §§ 803-41(2) and 803-42, we find that the “bugging” ban is inappropriate to participant monitoring for the Act explicitly provides under § 803-42(b)(3):

It shall not be unlawful under this part for a person to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception. . .. (Emphasis added.)

As noted earlier, federal courts have likewise, interpreted the federal law, the counterpart to Hawaii’s Wiretap Law, as authorizing the use of taped conversation as a result of consensual or participant monitoring. United States v. Rich, 518 F.2d 980 (8th Cir. 1975), cert. denied, 427 U.S. 907 (1976); United States v. Hodge, 539 F.2d 898 (6th Cir. 1976), cert. denied sub. nom. Robertson v. United States, 429 U.S. 1091 (1977).

Consequently, we find no violation of Hawaii’s Wiretap Law.

III.

Lester makes obtuse assertions that evidence introduced against Gaut was used against him by the jury, that Gaut’s objections during trial reflected adversely against him, and their defenses were antagonistic; hence it was error for the trial court to deny his motion for severance.

The matter of granting separate trials to criminal defendants joindy indicted rests within the sound discretion of the trial judge. State v. Hashimoto, 47 Haw. 185, 190, 389 P.2d 146, 150 (1963).

Lester fails in his burden of demonstrating prejudicial or unfair trial, and thus a showing of abuse of discretion by the trial judge. We find no reversible error here. State v. Hashimoto, supra; United States v. Brooks, 567 F.2d 134, 139 (D.C. Cir. 1977).

IV.

Lester asserts that it was error for the trial court to refuse his request for a manslaughter instruction. The record fails to support a clear and precise request for a manslaughter instruction by Lester. Instead, the record merely shows that he requested the court to instruct the jury that in the event the jury should find Gaut guilty of manslaughter, the jury must acquit Lester of murder. Hence, no assignment of error can be ascribed to the court’s failure to give a manslaughter instruction. Rule 30(e), Hawaii Rules of Penal Procedure. Furthermore, Lester denied hiring anyone to do the killing; consequently, even if the objection was properly preserved, we conclude from the record that there was no evidence from which the jury could have concluded that Lester was guilty of manslaughter. State v. Santiago, supra.

V.

Lester assigns error to the following instructions:

State’s Instruction No. 2:

Defendant Donald Lester is charged with the offense of Murder by a Hired Killer. A person commits the offense of Murder by a Hired Killer if he intentionally or knowingly causes the death of another person and he is the person hired to kill or the person responsible for the hiring.

In order to convict Donald Lester of this crime, the State must prove each element of the crime charged beyond a reasonable doubt. The elements are:

1. That Donald Lester;

2. Did hire another person or persons to kill Michelle Lester; and

3. That the person or persons hired to kill Michelle Lester did intentionally or knowingly cause the death of Michelle Lester.

Court’s Instruction No. 12:

The words “to hire to kill” mean to engage the services of a person or persons to kill for remuneration.

Lester argues that these instructions are misleading, contradictory and explicitly erroneous for the reasons that the legislature did not enact an offense “murder by a hired killer.”

We agree that there is no criminal offense of murder for hire. State v. Lincoln, 3 Haw. App. 107, 643 P.2d 807 (1982).

Lester was charged with murder. The phrase “by a hired killer” was not essential to the charge nor was it an element of the offense, but its inclusion can hardly be said to be fatal.

In addition, since murder by hiring is punishable by life imprisonment without parole, and ordinary murder without the hiring aspect allows parole, it is essential under due process that the jury determine that the killing was done by hire. Whether the factor of hiring is established through the instructions or through a special verdict form is immaterial. State v. Apao, 59 Haw. 625, 586 P.2d 250 (1978).

VI.

On three separate oocasions, the jury requested clarification of “murder for hire,” “murder” and “manslaughter,” and thereafter upon the jury’s request, the written instructions were given to them over objections.

The submission of written instructions to the jury is a matter within the discretion of the trial court. McDaniel v. United States, 343 F.2d 785, 789 (5th Cir. 1965), cert. denied, 382 U.S. 826 (1965).

We find no abuse of discretion by the trial court. Lester’s added claim that the court’s acquiescence in giving the instructions to the jury highlighted and unduly emphasized the hiring aspect of the case is highly speculative and conjectural.

VII.

Lester contends that the prosecutor had failed to prove beyond a reasonable doubt-the required element of causation. Essentially, he claims that there was no proof that the hired killer or killers intentionally or knowingly caused Michelle’s death since the jury found Gaut guilty of manslaughter and Mori was allowed to plead guilty to manslaughter.

We are not persuaded by this argument. Lester’s argument requires a single interpretation of the jury’s verdict. The jury is free to make all reasonable and rational inferences under the facts, and the jury’s finding will not be disturbed upon review unless clearly erroneous. Mori’s plea to manslaughter did not preclude the jury from rationally concluding that Mori intentionally or knowingly did the killing.

In fact, Gaut’s version at trial that Mori did the killing supports the jury’s verdict. There was sufficient evidence to support the jury’s verdict, State v. Rocker, 52 Haw. 336, 475 P.2d 684, 691 (1970), and we conclude that the two verdicts in the circumstances hereof were not inconsistent.

VIII.

Gaut asserts that the trial court erred in denying his motion for a bifurcated trial. He wanted a two-stage trial, the first to consider his criminal liability for murder, and the second to establish that the murder was done by a hired killer. He contends that without a bifurcated trial to cqnsider the issues separately, he would be denied a fair trial because the jury would use his culpability in the murder to convict him of being a hired killer.

There is no constitutional right to a bifurcated trial, Spencer v. Texas, 385 U.S. 554, 568 (1967), and the decision to grant bifurcation rests within the sound discretion of the trial court. United States v. Bennett, 460 F.2d 872, 880-81 (D.C. Cir. 1972); Harried v. United States, 389 F.2d 281, 284 (D.C. Cir. 1967).

We see none of the prejudice asserted herein by Gaut since he was convicted of manslaughter, and we find no abuse of discretion by the trial judge.

IX.

Both Lester and Gaut challenge the grant of immunity under HRS § 621C-3 and plea bargains given to the co-indictees who testified on behalf of the State. They claim that because the grants were given conditionally, that is, the co-indictees were required to testify truthfully and were not to receive the benefits of the agreements until after their testimonies, appellants were denied constitutional due process of a fair trial. Gaut even argues that in fairness, transactional immunity under § 621C-4 should have been given.¹⁶

Herbert H. K. Lau (Marie Milks and Larry A. Goya on the opening brief), Deputy Public Defenders, for defendant-appellant Kenneth A. Gaut. Stephen P. Pingree and Leslie S. Fukumoto for defendant-appellant Donald Lester. Peter B. Carlisle, Deputy Prosecuting Attorney, for plaintiffappellee.

We reject appellant’s argument that the expectation of leniency of the co-indictees in return for their truthful testimonies denied appellant a fair trial or due process of law. Such expectations went merely to the credibility, not admissibility, of the co-indictees’ statements, and the issue of credibility is for the jury. We see no reason to disturb the findings of the jury. State v. Wakinekona, 53 Haw. 574, 577, 499 P.2d 678, 681 (1972); State v. McGlynn, 292 Minn. 405, 195 N.W.2d 583 (1972); State v. DeWitt, 286 N.W.2d 379 (Iowa 1979), cert. denied, 449 U.S. 844 (1980).

Affirmed.

1 Also charged in the same indictment were James Vincent kíori, Elizabeth Y. Tuttle, Kenneth E. Anderson, Patrick J. Hildebrand, Ronnie G. Wilson and Patrick L. Hamlow, but they were allowed to plead to reduced charges under plea bargain agreements with the government.

2 The pertinent counts charged Lester with having hired Gaut and the others to do the killing, and Gaut and the others of agreeing (to being hired) to do the killing.

3 1 707-701 (1976) Murder. (1) Except as provided in section 707-702, a person commits the offense of murder if he intentionally or knowingly causes the death of another person.

(2) Murder is a class A felony for which the defendant shall be sentenced to imprisonment as provided in section 706-606.

4 § 706-606 (1976) Senten-ce for offense of murder. The court shall sentence a person who has been convicted of murder to an indeterminate term of imprisonment. In such cases the court shall impose the maximum length of imprisonment as follows:

(a) Life imprisonment without possibility of parole in the murder of:

(iii) A person by a hired killer, in which event both the person hired and the person responsible for hiring the killer shall be punished under this subsection. ...

5 [§ 621C-1] Immunity generally, (a) A witness who asserts his privilege against self-incrimination before a court or grand jury may be directed to testify or produce other information as provided in this chapter. He shall not thereafter be excused from testifying or producing other information on the ground that his testimony or other information required of him may tend to incriminate him, but he shall not be prosecuted or punished in any criminal action or proceeding for or on account of any act, transaction, matter, or thing concerning which he is so directed to testify or produce other information, except that he may be prosecuted for perjury or any other offense constituting a failure to comply with such direction.

6 U.S. Const, amend. IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.)

7 Haw. Const, art. 1, § 6. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. . . . (Emphasis added.)

8 Haw. Const, art. I, § 7 (formerly § 5). The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. (Emphasis added.)

9 The State stipulated that Tuttle was acting as a government agent.

10 Certainly there are other types of eavesdrops in which none of the parties to the conversation has consented, but these types of eavesdrops are beyond this discussion.

11 Title III of the Omnibus Crime Control 8c Safe Streets Act-of 1968, Pub. L. 90-351, 82 Slat. 197.

12 During a visit to the defendant’s office, the government agent recorded the conversation on a recording device carried in the agent's pocket.

13 Government agent overheard a conversation between defendant and an informant by monitoring transmissions from a radio transmitter concealed upon the person of the informant.

14 Government agent taped a bribery offer made by defendant in the office of the agent.

15 We also note that State v. Reeves, 31 Cr. L. Rep. 2001 (La. Mar. 1, 1982), reached the same conclusion.

16 In State v. Miyasaki,supra, we declared use immunity under HRS § 621C-3 to be in violation of our constitution.