State v. Brezee , 66 Haw. 162 ( 1983 )

OPINION OF THE COURT BY

PADGETT, J.

This is an appeal from a conviction of murder and attempted rape. There are four claims of error. (1) That appellant’s right to counsel was violated by the State in the statements taken from him. (2) That the language of the indictment for attempted rape was defective. (3) That the jury should have been instructed on the attempted rape count that “conduct shall not be considered a substantial step under [the attempt statute] unless it is strongly corroborative of the defendant’s criminal intent”. (4) That there was insufficient evidence to support the convictions. We affirm.

With respect to points (2) and (4) above, we find them to be so plainly devoid of merit that no further discussion is necessary.

As to the claimed violation of the right to counsel, certain evidence is undisputed. After appellant had been arrested on another charge and was being held thereunder, Detective Lum, on the morning of June 24, 1980, approached appellant and asked him if he desired to make a statement. Appellant stated that he wished to talk to his attorney. Detective Lum thereupon requested the turnkey to attempt to contact appellant’s attorney, Michael Weight. Approximately two hours later, the turnkey reported to Detective Lum that he had been unable to reach the attorney and that the appellant wanted to see him. Detective Lum then returned to the appellant’s cell and the appellant informed him that he wished to make a statement. Lum then took him to an office and began the procedure of explaining to him his rights and outlining what would be done in the course of taking the statement, i.e., that it would be taped, that appellant could have it videotaped if he wished, etc. During the course of this conversation and before any questions about the crime were asked of appellant, the attorney returned a call made to his office by Detective Lum. Lum explained to him the situation and the attorney and appellant conversed.

In that conversation, the attorney advised the appellant not to give a statement but the appellant stated that he wished to give such a statement anyway. The attorney then spoke, over the phone, to Detective Lum and informed him that he had advised the appellant not to give a statement but the appellant intended to go ahead. He asked Detective Lum to wait until that afternoon when he could be present but Detective Lum refused. At this point, the detective called the prosecutor’s office and was told to prepare an additional form for appellant’s signature, noting that he had had the opportunity to converse with his attorney; that he had been advised not to make a statement; and that he made the statement of his own free will and against the advice of his attorney.

The detective then explained the warning form (HPD 81) in detail to the appellant who answered orally the various questions therein contained indicating that he knew he was in custody; that he did not want an attorney; that he understood that he could stop answering questions at anytime; and that he would like to tell the detective what had happened. He initialed each of the questions and signed the form. The detective also presented him with another form, which is Exhibit 31 in evidence, which stated

I have had the oppurtunity [sic] to converse with my lawyer Michael WEIGHT by telephone this morning at about 1130 hours, 6-24-80. My lawyer advised me not to make a statement concerning the death and my involvement of Sandra DAMAS.

I make the following statement on my own free will against the advise [sic] of my attorney.

Appellant read this form and signed it, dating it and giving the time. The detective also signed it.

The Supreme Court of the United States in Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378, 386 (1981), stated:

[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. [Footnote omitted.] We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police.

In this case, the record is clear that the police scrupulously honored the principles just quoted and that it was appellant who initiated further communications with the police by asking that Detective Lum come back to his cell and by informing him that he wished to make a statement. Even then, before interrogating the appellant as to the crime, Detective Lum made further and successful efforts to contact appellant’s attorney. The attorney, when contacted, spoke to the appellant and advised him not to make a statement. The appellant nevertheless elected to make such a statement. Thereupon, the standard waiver of rights form was read and explained to him, he answered the questions orally and initialed them on the form and signed them. He then was given an additional statement indicating that he had talked to his attorney; that his attorney had advised him not to make a statement; and that he was going ahead of his own free will and he signed that statement. Only then did the interrogation with respect to the crime commence.

It is true that the attorney (not the appellant) after advising appellant not to make a statement and being rebuffed, asked for a delay in the taking of the statement until he could be present some hours later. This, understandably, was refused.

This case is completely unlike the facts in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In that case, the appellant was arraigned in Davenport, Iowa. Both his lawyer at the arraignment and his lawyer in Des Moines, Iowa, had advised him not to make any statements until he had consulted with the lawyer in Des Moines after having been returned there, and the police officers, who were to accompany him on the automobile trip back to Des Moines, agreed not to question him during the trip. However, one of the police officers, knowing that the defendant was a former mental patient and was deeply religious, sought to obtain and did obtain incriminating remarks and information from him by stating to him during the drive that he felt they should stop and locate the girl’s body because her parents were entitled to a Christian burial for the girl who was taken away from them on Christmas Eve. As a result of that, the defendant made incriminating statements during the trip and finally directed the police to the girl’s body. Thus, that case dealt with the initiation of further contact by the police rather than the defendant, and clearly violated the right to counsel. Our case is entirely different. After requesting an attorney, appellant not only initiated •the further contact regarding a statement but was actually advised by his attorney not to make such a statement and nevertheless proceeded. His contention that his right to counsel was violated is meritless.

Appellant’s third point is that an instruction on the attempted rape charge should have been given to the effect that appellant’s conduct should not be considered a substantial step in the attempted rape unless it was strongly corroborative of appellant’s criminal intent. Under State v. Brighter, 63 Haw. 105, 621 P.2d 381 (1980), such an instruction, if timely requested, should have been given. It was not, however, requested.

Where an instruction is not requested, we nevertheless have the power to consider the question of whether such an instruction should have been given where the failure to give it constitutes “plain error.” State v. Carson, 1 Haw. App. 214, 617 P.2d 573 (1980); Rule 52(b), HRPP. This court has never defined “plain error” but has indicated that “plain error”, on appeal, may be found where there were errors injury instructions if it is shown that substantial rights of the defendant may have been affected. State v. Onishi, 59 Haw. 384, 385, 581 P.2d 763, 765 (1978); State v. Iaukea, 56 Haw. 343, 355, 537 P.2d 724, 733 (1975).

As is noted in 3A Wright, FEDERAL PRACTICE AND PROCEDURE, § 856, p. 337 (1982), under the federal practice there are no hard and fast classifications in either the application of the principle or the use of the term “plain error”.

In U.S. v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, 557 (1936), the court said:

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.

There was ample testimony from other witnesses as to the character of the victim, her relationship with the appellant and her statements about the prospective, and, as it proved, fatal meeting with him, from which the jury could have disbelieved appellant’s statements as to previous sexual relations with the victim.

Here, the victim, when found, had her shirt removed and stuffed in her mouth; her brassiere was pulled up over her breasts; her jeans were pulled down to her knees; she had large abrasions on her back; and there was a bruise of the fossa navicularis, a part of the vagina, which could have been caused by a blunt force applied to the area and could have been caused an hour to two days before the victim’s death. Certainly, the physical evidence could have been viewed as strongly corroborating the inference that appellant’s attack on the victim was a sexual assault.

Stephen T. Hioki for appellant. Shirley Smith, Deputy Prosecuting Attorney, for appellee.

Appellant’s statements as to the events which transpired between himself and the victim on the night she was murdered are confused and contradictory in many respects. He acknowledges that the victim’s shirt was off and that he stuffed it in her mouth. His statements as to what had happened are clearly inconsistent with any explanation other than sexual assault for the removal of her shirt, for stuffing it in her mouth, with the severe abrasions on her back, and with the bruise in the vaginal area.

The physical evidence thus pointed to attempted rape and the jury could, and obviously did, find his denial of attempted sexual intercourse incredible. The claimed error in not giving the unrequested instruction, sua sponte certainly does not seriously affect the fairness, integrity or public reputation of judicial proceedings. It is clearly not an obvious one, as is shown by the fact that it was missed by experienced defense counsel, the prosecutor and the court. The evidence amply sustains the conviction on the attempted rape charge and we, accordingly, see no “plain error” in the failure, unasked, to give the instruction in question. We think, given the physical evidence and the conviction of murder, the jury would have convicted appellant of attempted rape even if the instruction had been given. Affirmed.