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State v. Ganal5/8/1996
Opinion OF THE COURT BY MOON, C.J.
Defendant-appellant Orlando Ganal, Sr. appeals the judgment, guilty conviction, and sentence for: (1) the attempted first degree murder of (a) his estranged wife, Mabel Ganal (Mabel), (b) Michael Touchette (Michael), the brother of Mabel's lover, and (c) Michael's wife, Wendy Touchette (Wendy); (2) the first degree murder of (a) Ganal's mother- and father-in-law, Aradina and Santiago Dela Cruz (collectively, the Dela Cruzes), and (b) Michael and Wendy's infant children, Joshua and Kalah Touchette; (3) the use of a firearm in the commission of a felony; (4) the first degree terroristic threatening of Mabel's lover, David Touchette (David); and (5) the criminal property damage of the premises of his employer, Young Laundry.
On appeal, Ganal argues that: (1) the prosecution did not present sufficient evidence to establish probable cause that he committed first degree property damage at Young Laundry; (2) the trial court improperly denied his motion to suppress evidence found in his truck; (3) the trial court improperly denied his motion to dismiss the use of a firearm count; (4) he was deprived of a fair trial because of allegedly improper statements made by the prosecutor and/or his own outbursts in court; and (5) the trial court erroneously denied his motion to dismiss the attempted first degree murder count because attempt is an included offense under Hawai'i Revised Statutes (HRS) ยง 701-109 (1993). For the reasons discussed below, we reverse Ganal's conviction and sentence as to Counts II and III of the indictment and affirm Ganal's convictions and sentences on all other Counts.
I. FACTUAL BACKGROUND
The many events that form the basis of the charges against Ganal in this case principally revolve around the night of August 25, 1991 and the early morning of August 26, 1991. We detail the relevant events largely in chronological order.
A. Events Prior to August 25, 1991
Ganal testified at trial that, on February 15, 1991, he injured his back while working at his job at Young Laundry. Unable to work, and having difficulty obtaining workers' compensation, Ganal became despondent. At roughly the same time, Ganal's wife, Mabel, began having an affair with David, a co-worker at her part-time job. Ganal became suspicious of Mabel's affair, and through investigation, eventually confirmed his suspicions.
In early April 1991, as Mabel and Ganal's marriage began to deteriorate, Ganal began calling David -- at times, he was friendly; at others, he threatened David and his family with violence. At approximately the same time, Mabel left Ganal to live with her parents, the Dela Cruzes. Orlando Ganal, Jr. ("Jun Jun"), Ganal and Mabel's son, then age thirteen, continued to live with Ganal.
Mabel testified at trial that on Saturday, August 24, 1991, she was at Ganal's home to pick up Jun Jun when she and Ganal began to quarrel. The quarrel escalated, culminating in Ganal pointing a gun at Mabel and begging her to move back in with him. When Mabel refused, Ganal pointed the gun at his own head as if to shoot himself. Mabel eventually convinced Ganal not to shoot himself and persuaded Ganal to give her the gun. Mabel then called for Jun Jun to help her, but Ganal stopped her and threatened to kill both Mabel and Jun Jun. When Jun Jun came to Mabel's aid, Mabel signaled to Jun Jun that Ganal had a gun, and Jun Jun left the house. Ganal and Mabel continued to quarrel, and, after they stopped arguing, they looked for Jun Jun, but they could not find him. A neighbor took Mabel back to the Dela Cruzes' home in Waipahu, and, during that night and the follo
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