***NOT FOR PUBLICATION***
NO. 25068
STATE OF HAWAI`I, Plaintiff-Appellee
vs.
KEITH MURAUSKAS, Defendant-Appellant
and
EDWARD WALLACE MARTIN, Defendant
APPEAL
FROM THE FIRST CIRCUIT COURT
(CR. NO. 99-0704)
On appeal Defendant (1) "challenges . . . the sufficiency of the evidence presented at trial to support his conviction in Count II" and (2) contends "the jury convicted [Defendant] . . . based on their [sic] bias against [Defendant]." Defendant requests that his conviction of the attempted murder of Virginia be reversed and an acquittal with respect to Virginia be filed, and does not oppose entry of a guilty verdict for murder in the second degree as to Paul. The conviction in Count IV for kidnapping is not challenged on appeal.
As to the first ground, when the sufficiency of the evidence is challenged on appeal the standard of review is that
evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
State v. Young, 93 Hawai`i 224, 230, 999 P.2d 230, 236 (2000) (citations omitted). Substantial evidence is defined as "credible evidence which is of sufficient quality and probative value to enable a [person] of reasonable caution to support a conclusion." State v. Batson, 73 Hawai`i 236, 248-49, 831 P.2d 924, 931 (1992).The testimony of codefendant Edward Wallace Martin (Martin) was that he and Defendant decided to rob Paul. Martin maintained that because Defendant "didn't want anybody ratting on him," they agreed to commit a "double murder" "from the beginning." According to Martin, they planned to "go up to Paul's apartment," "do Paul first," then kill Virginia. Martin testified that after Paul had been hit with a hammer and stabbed with a knife, "the plan . . . to kill [Virginia] when she [got] home" was "still in effect." Martin indicated that "[t]he plan was for [Defendant] to grab [Virginia] when she came to the door, take her to the bathroom, and kill her in the tub[.]" Martin further testified that "after Paul was dead already, . . . [Defendant] made preparations to wait for Virginia to come to the door. . . . He cleared himself a little space behind the front door and he just was going to crouch there and wait for her to open the door up." Defendant had a hunting knife with him and the hammer.
In sum, Defendant asserts that no substantial steps were taken with respect to the attempted murder charge against Virginia because
the acts committed by these two perpetrators after the murder of [Paul] consisted of turning out the lights in the apartment, crouching down the window, and periodically peering out of the window in search for [Virginia], and placing the sledgehammer, knife, and duct tape on the arm of the sofa. Beyond that, however, absolutely nothing occurred.
(Emphasis added.)
HRS § 705-500(1)(b) applies if "the defendant's conduct has advanced so far toward the criminal objective as to constitute a substantial step in a course of conduct intended to reach that objective." Commentary on HRS § 705-500. In the instant case, the court's attempt instruction and its first degree attempted murder instruction rested on the language of HRS § 705-500(1)(b). According to the Commentary, with regard to subsections (1) and (2) of HRS § 705-500, "[s]ubsection (3) provides that conduct shall not be considered a 'substantial step' under subsections (1) and (2) unless it is strongly corroborative of the defendant's criminal intent." Id. In that connection,
[t]here are, on the other hand, certain types of conduct which, if strongly corroborative of the defendant's criminal intent, could reasonably be held to constitute a "substantial step" and should not be held insufficient on this issue as matter of law. These types of conduct are: (a) lying in wait, searching for, or following the contemplated victim of the crime; . . . (e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances[.]
Id. (emphases added). These examples encompass the evidence to which both the defense and the prosecution refer. As to "lying in wait," the testimony of Martin related he and Defendant had planned to kill both Paul and Virginia and waited in the living room for Virginia after Paul had been killed, on the assumption Virginia would be coming home. As to the "possession of materials to be employed" in the planned murder of Virginia, the codefendants waited for her in the living room in her apartment and Defendant had with him a knife and a hammer at the ready. Such conduct was "strongly corroborative" of criminal intent and under HRS § 705-500 such conduct can be held "reasonably" to constitute a "substantial step" in attempting to commit Virginia's murder.As to the second ground, Defendant refers to "the horrific nature of the crime, . . . [Defendant's] in-court testimony where it is apparent he lied, . . . [Defendant] causing . . . counsel to approach the bench regarding various questions he desired to be asked of various witnesses and his acting out behavior." However, he cites no law and makes no discernible argument with respect to this contention. "This court may 'disregard [a] particular contention' if the appellant 'makes no discernible argument in support of that position[.]'" Taomae v. Lingle, 108 Hawai`i 245, 257, 118 P.3d 1188, 1200 (2005) (quoting Norton v. Admin. Dir. of the Court, 80 Hawai`i 197, 200, 908 P.2d 545, 548 (1995). Therefore,
In accordance with Hawai`i Rules of Appellate Procedure Rule 35, and after carefully reviewing the record and the briefs submitted by the parties, and duly considering and analyzing the law relevant to the arguments and issues raised by the parties,
IT IS HEREBY ORDERED that the court's judgment filed on April 12, 2002, from which the appeal is taken, is affirmed.
DATED: Honolulu, Hawai`i, November 21, 2005.
On the briefs:
Christopher R. Evans
for defendant-appellant.
1. Hawai`i Revised Statute (HRS) § 707-701.5(1) states that "[e]xcept as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person."
2. HRS § 705-500 states as follows:
(a)
Intentionally engages in conduct which would
constitute the crime if the attendant circumstances were
as the person
believes them to be; or
(b)
Intentionally
engages in conduct which, under the circumstances as the person
believes them to be,
constitutes a
substantial step in a course of conduct intended to culminate in the
person's commission
of the crime.
(2)
When causing a particular result is an element of
the crime, a person is guilty of an attempt to commit the
crime if,
acting with the state of mind required to establish liability with
respect to the attendant
circumstances
specified in the
definition of the crime, the person intentionally engages in conduct
which is a
substantial step in a
course of conduct
intended or known to cause such a result.
(3)
Conduct
shall not be considered a substantial step under this section unless it
is strongly corroborative of the
defendant's criminal intent.
3. HRS § 707-701(1)(a) states that "[a] person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of . . . [m]ore than one person in the same or separate incident[.]"
4. HRS § 706-656 (Supp. 2004) states in pertinent part as follows:
5. HRS § 707-720(1)(b) states that "[a] person commits the offense of kidnapping if the person intentionally or knowingly restrains another person with intent to . . . [u]se that person as a shield or hostage[.]"
6.
The
Honorable Dexter D. Del Rosario presided.