 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Ganal5/8/1996
epartment's form HPD-393, the written consent to search form, is relevant with regard to the totality of circumstances because once consent was given, certain rights contained in the consent form, including the right to counsel and the right to refuse, were deemed waived.
b. The Court finds that when Detective Santos reviewed the HPD-393 form with Defendant, Defendant was provided with an opportunity to read through the form.
5. Having had the opportunity to listen to Defendant's testimony, the Court finds that Defendant is intelligent, understands the English language, and that he admitted that he can read and write.
6. Therefore, the Court finds that regardless of what may have preceded the arrival of Detective Santos and what may have preceded the questioning by Detective Santos on the matter of consent, that when consent was given to Detective Santos, the consent was freely and voluntarily given.
The issue of voluntariness is thus reduced to the factual issue of coercion, which, in turn, rests on a determination of credibility made by the circuit court. As the Patterson court noted:
The power to Judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal[,] all presumptions favor proper exercise of that power, and the trial court's findings whether express or implied must be upheld if supported by substantial evidence.
58 Haw. at 468, 571 P.2d at 749 (quoting People v. James, 19 Cal. 3d 99, 107, 561 P.2d 1135, 1139, 137 Cal. Rptr. 447, 451 (1977)); see also Domingo v. State, 76 Haw. 237, 242, 873 P.2d 775, 780 (1994) ("An appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trial Judge." (Citations omitted.)). Based on our review of the record, we hold that the trial court did not clearly err in finding that Ganal voluntarily consented to the search of his truck.
C. The Circuit Court's Denial of Ganal's Motion to Dismiss Count III of the Indictment.
Ganal next argues that HRS § 134-6(a) (1993) "must be construed to prohibit prosecutions of cases involving felony terroristic threatening" and that, if the contrary construction were sustained, the prosecution thereunder violated his right to equal protection under both the United States and Hawai'i Constitutions. We first address the proper construction of HRS § 134-6(a).
The current version of HRS § 134-6(a) criminalizes possession, use or threatened use of a firearm and provides in pertinent part:
It shall be unlawful for a person to knowingly carry on the person or have within the person's immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, whether the firearm was loaded or not, and whether operable or not[.]
HRS § 134-6(a) (Supp. 1995). In addition, in the current version, a proviso specifically states that "a person shall not be prosecuted under this subsection where the separate felony is the felony offense of terroristic threatening in the first degree under section . . . 707-716(1)(d)[.]" HRS § 134-6(a)(3) (Supp. 1994).
According to the bill of particulars filed by the prosecution in the instant case, the underlying felony for the HRS § 134-6(a) violation charged in Count III was terroristic threatening in the first degree against Mabel Ganal
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|