STATE of Hawaii, Plaintiff-Appellee,
v.
Randall Peter WHITE, Defendant-Appellant, and
Janet Lee Bonham, also known as Lisa, and Raymond Lionel Rose, Defendants.
No. 9665.
Intermediate Court of Appeals of Hawaii.
August 21, 1985.*1332 Lamont Cranston Strong, Strong & Ward, Chicago, Ill. (Michael A. Weight, Honolulu, on brief), for defendant-appellant.
Shirley Smith, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.
Before BURNS, C.J., and HEEN and TANAKA, JJ.
BURNS, Chief Judge.
The issues and our answers are: 1) Did the trial court abuse its discretion when it denied defendant Randall Peter White's pretrial and trial motions to sever his trial from co-defendant Janet Lee Bonham's trial? No. 2) Is our opinion in State v. Reyes, ___ Hawaii App. ___, 706 P.2d 1326 (1985), applicable in this case? Yes.
On December 16, 1982 Bonham, also known as Lisa, Raymond Lionel Rose, and White were indicted for 1) the murder of and 2) conspiracy to murder Gary Angel. Sharon A.T. Bishaw was an unindicted co-conspirator.
On October 6, 1983 White moved for severance "on the grounds that Defendant White's defense of alibi or lack of identification is antagonistic to Defendant Bonham's anticipated defense [of] lack of mental state." The trial court denied the motion.
On October 14, 1983 Rose pled guilty to manslaughter and conspiracy and agreed to testify as a witness for the prosecution.
At the jury trial of Bonham and White, the prosecution's only eyewitness was Rose. Thereafter, Bonham called Bishaw as an adverse witness; Bonham testified in her own behalf; and White testified in his own behalf.
Rose testified that during the evening of October 29, 1982 he, White, Bonham, and Bishaw devised a plan to kill Angel. The plan called for Bonham and Bishaw to pick up Angel in Honolulu to take him to his friend's house in Kailua. White and Rose were to follow in White's car. Bonham would stop the car at the Pali lookout access road and White and Rose would force Angel out of the car and kill him. As it happened, it was not necessary to force Angel out of Bonham's car because Angel exited voluntarily to urinate. In all other respects, the events occurred according to plan. Angel received 48 stab wounds and died.
The testimony of Bishaw and Bonham substantially corroborated Rose's version of the facts. Bonham's defense to the murder charge was that she did not think that the plan would actually be carried out and, therefore, she did not have the requisite state of mind.
During Bonham's testimony, White renewed his motion for severance and the motion was again denied.
White testified and admitted being together with Bonham, Rose, and Bishaw at Bonham's house at the relevant date and time. While there, he drank beer, swallowed a quaalude, smoked marijuana, used cocaine, and passed out. He did not leave Bonham's house until the next morning.
During the settlement of instructions, Bonham moved for dismissal of the conspiracy count against her on the ground that Hawaii Revised Statutes § 701-109(1)(b)[1] bars conviction of both the murder and the conspiracy to commit the murder. White did not join in the motion. The trial court denied the motion.
The jury found White and Bonham guilty as charged. No counts were dismissed and both White and Bonham were sentenced on both counts.
I.
White contends that the trial court erred in denying his motions for severance. We disagree.
*1333 Rule 14, Hawaii Rules of Penal Procedure, provides:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in a charge or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
The question posed to the trial court was, whether the prejudice White suffered because he was tried with Bonham outweighs the public interest in having one trial instead of two. See State v. Matias, 57 Haw. 96, 550 P.2d 900 (1976). The standard of review of the trial court's denial of the motion for severance is the abuse of discretion standard. Matias, supra.
In our view, after the defendant has been adjudicated guilty, the appellate court may not conclude that the defendant suffered prejudice from a joint trial and, therefore, that the trial court abused its discretion in denying defendant's motion for severance unless it first concludes that the defendant was denied a fair trial. What might have happened had the motion for severance been granted is irrelevant speculation.
Bonham's presence as White's co-defendant possibly prejudiced White in two respects: 1) Without White's objection, Bonham called Bishaw as an adverse witness and Bishaw's testimony corroborated Rose's testimony implicating White in the planning and execution of the homicide; and 2) Over White's objection, Bonham testified in her own behalf and her testimony corroborated the testimony of Rose and Bonham implicating White in the planning and execution of the homicide.
In our view, the significant facts are that White was not prevented from presenting his evidence, and no evidence damaging to White's case was introduced in the joint trial that would not have been admissible in a trial of White only. Consequently, neither of the foregoing possible prejudices nor their combination is sufficient to convince us that White was denied a fair trial. Thus, we cannot conclude that the trial court abused its discretion in denying White's motion for severance.
II.
Sua sponte we note that the same problem exists in this case as existed in Reyes, supra. White was adjudicated guilty of both conspiracy to commit the murder and the murder. For the reasons stated in Reyes, supra, we vacate the sentence and judgment with respect to counts I (murder) and II (conspiracy to commit murder), and remand for dismissal of count II and imposition of sentence and judgment with respect to count I only.
III.
We find no merit in White's two other points on appeal.
IV.
We vacate the sentence and judgment with respect to counts I and II and remand for dismissal of count II and imposition of sentence and judgment with respect to count I only.
NOTES
[1] Section 701-109(1)(b) provides:
Method of prosecution when conduct establishes an element of more than one offense. (1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. He may not, however, be convicted of more than one offense if:
* * * * * *
(b) One offense consists only of a conspiracy or solicitation to commit the other[.]