State v. Alexander

612 P.2d 110 (1980)

STATE of Hawaii, Plaintiff-Appellee,
v.
Ronald ALEXANDER, also known as Thomas Leslie and Larry Leslie, Defendant-Appellant.

No. 6504.

Supreme Court of Hawaii.

June 6, 1980.

Philip D. Bogetto, Honolulu, for defendant-appellant.

Peter B. Carlisle, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C.J., OGATA and MENOR, JJ., Retired Justices MARUMOTO and KOBAYASHI, assigned by reason of vacancies.

MENOR, Justice.

The defendant was convicted in a jury-waived trial of three counts of promoting prostitution in the second degree in violation of HRS § 712-1203(1).^[1] He was thereafter sentenced to extended terms of ten years on each count to run concurrently. He appeals from the judgment and sentence of the trial court and from the denial of his motion for a new trial.

On appeal, the defendant challenges the sufficiency of the evidence leading to his conviction. He also questions the sufficiency of the evidence to support the imposition of extended terms under HRS § 706-661^[2] and HRS § 706-662(4).^[3] He alleges further that the trial court's denial of his motion for a new trial constituted an abuse of discretion.

I

The defendant was charged with promoting the prostitution of two or more unnamed women in Count I of the indictment; of Susan Kuwada, a minor, in Count II; and of Marie Dunbar, a minor, in Count III. The record shows that at varying periods of time a number of women lived at the defendant's residence and worked for him as prostitutes. Among them were Rebecca French, Susan Kuwada, and Laura Decker. All three testified at trial and established the fact that the defendant had been promoting prostitution in the second degree, as charged in the indictment. At issue, however, is whether their testimony was corroborated as required by HRS § 712-1205 which provides:

A person shall not be convicted of promoting prostitution, in any degree, or of attempt to commit any such offense, solely upon the uncorroborated testimony of a person whose prostitution activity he is alleged to have advanced or attempted to advance, or from whose prostitution activity he is alleged to have profited or attempted to profit.

The statute, in essence, proscribes the conviction of an alleged panderer solely on the uncorroborated testimony of his prostitutes. Corroborative evidence in this case is evidence from an independent source that would tend to show that the crime charged has in fact been committed and that the defendant was the perpetrator of the offense. Such evidence may be direct or circumstantial and, standing alone, need not be independently sufficient to support a conviction. Some evidence, however slight, tending to establish the corpus delicti and to connect the defendant with the commission of the crime charged will suffice. West v. State, 232 Ga. 861, 209 S.E.2d 195 (1974); State v. Caldwell, 241 Or. 355, 405 P.2d 847 (1965). In this case we find that the statutory requirement for corroboration has been amply met by the State's evidence.

Rebecca French, Susan Kuwada, and Laura Decker testified to the effect that they and other girls lived at the defendant's Kailua residence and worked for him as prostitutes. Rebecca testified that she usually worked with one Aileen Kuwada. Laura, on the other hand, said that she worked mostly with Susan Kuwada, who first introduced her to the defendant, and with Marie Dunbar whom she had personally observed perform a sexual act for a fee. Among the girls named by Laura as the defendant's other employees were Aileen Kuwada and Pamela Nakamura. During her testimony and before turning into a hostile witness, Susan admitted to having worked as a prostitute for the defendant. She also testified that it was one Mary Pestana who made the hotel arrangements for her whenever she had to entertain her clients. The record shows that Laura Decker was only thirteen years old at the time and that Susan and Marie were both only sixteen.

Corroborative of their testimony, and in itself independent evidence of the defendant's promotion of prostitution, was the testimony of Mary Pestana. Although she lived in the defendant's Kailua residence at the time, she did not work for him as a prostitute. She explained to the court that shortly after she met the defendant in June of 1975 and went to live at his residence, she assisted him by "calling the trick book" for him. She described her role in the operations as follows:

I would call up the numbers in the book, the name (sic), and tell them that, you know, there were certain girls available. And if they were interested — if they were — I would give them the number and they'd call back.

At times Mary Pestana would also make the room reservations for the girls in her own name or in her various aliases, and on occasion she would even drive them to their hotel assignations in the defendant's automobile. She stayed in the same hotel room with Susan Kuwada when the latter performed her first "trick" for pay. It was Mary Pestana who usually collected and turned the girls' earnings over to the defendant. She assisted the defendant along these lines until she herself decided to leave six months later.

There was also corroboration from other sources. Hotel receipts from various Waikiki hotels made out to Mary Pestana were admitted into evidence. Two trick books which were recovered from the defendant's bedroom pursuant to a search warrant obtained and executed by Detective Barker were likewise introduced. These contained the names of male clients, their phone numbers, and in some cases their occupations. Some of the entries were in Aileen Kuwada's handwriting. The name "Susie," which is also the nickname for Susan Kuwada, was found handwritten on a page of one of the trick books. Discernible fingerprints on one of the trick books were positively identified by Sgt. Ohashi, a qualified police expert in fingerprint identification, to be those of Pamela Nakamura and Aileen Kuwada.

Detective Barker also testified that on the evening of January 14, 1976, while maintaining a surveillance of the defendant's Kailua residence, he saw Aileen Kuwada, Susan Kuwada, and Marie Dunbar at the house. Later that evening, the three girls were seen leaving the area in a gold Chevrolet automobile. They were followed to Waikiki where Detective Barker arrested Marie Dunbar for prostitution, and Susan Kuwada for a curfew violation. The following evening the police resumed their surveillance of the house and again saw Susan Kuwada, Marie Dunbar, and Aileen Kuwada on the defendant's premises.

II

The defendant has also challenged the imposition of the extended terms on the ground that there was no showing that his criminality was "so extensive" as to warrant extended punishment. HRS § 706-662(4). We find no merit in this contention.

In State v. Huelsman, 60 Haw. ___, 588 P.2d 394 (1978), we attempted to clarify HRS § 706-662(4)^[4] under which the extended sentences here challenged were imposed. There we construed the broad term "warranted" in the statute to mean "necessary for the protection of the public," and implicit in the results we reached in that case was that where the sentencing court determined from the nature and the circumstances surrounding the commission of the offenses for which the defendant was being sentenced that extended terms would be necessary for the protection of the public, the court could impose such punishment upon the defendant. In Huelsman, the defendant was being sentenced on one count of robbery in the second degree, two counts of kidnapping, and one count of assault in the first degree. We remanded the case for a determination by the sentencing court of whether extended terms were necessary for the protection of the public.

To lay to rest any doubt that may still exist as to what was intended in Huelsman, we hold that where the defendant is being sentenced for two or more felonies, or is already under sentence of imprisonment for felony, see Commentary on HRS § 706-662, and the sentencing court further finds, from the defendant's past criminal history or from the nature and circumstances surrounding the commission of the offenses for which he has been convicted, that he has exhibited a callous disregard for laws enacted for the safety and welfare of society and that his incarceration for an extended term is necessary for the protection of the public, the requirements of HRS § 706-662(4) will have been satisfied. In evaluating the defendant's character and scope of criminality and in predicting his future conduct, the sentencing court is to be guided by ordinary sentencing principles, State v. Huelsman, supra, and it "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Grayson, 438 U.S. 41, 50, 98 S. Ct. 2610, 2615, 57 L. Ed. 2d 582 (1978).

The defendant here was being sentenced for three separate felonies. The record also shows that he had previously been convicted of a felony in the California courts. He was a pimp and a panderer for whom the promotion of vice and the purveyance of sex had become a profitable way of life. He was an instrument of moral corruption and degradation, and the trial court implicitly so found. The more women he had working for him, the more he profited from his illegal operations. And it made no difference to him that some of them were barely into their teenage years. Laura Decker, for one, was only thirteen years old and Susan Kuwada and Marie Dunbar were both only sixteen. That he was also physically abusive towards his employees is evident from the record. Rebecca French, for example, testified that on several occasions the defendant beat her for failing to meet her earnings quota. In one instance he struck her with a pool stick and on another, with a metal bow and a gun. A particularly severe beating was administered by the defendant on still another occasion when Rebecca was unable to post her own bail following an arrest for prostitution. For a time thereafter she was compelled to carry on with her prostitution activities sporting bruises and black eyes. The defendant's violent displays of displeasure were not reserved solely for Rebecca, and this was attested to by Laura Decker. Neither were his criminal activities limited to beatings and illicit sex. Rebecca French testified:

Q. Did the defendant ever give you any drugs while you were working for him?

A. Yes, he did.

* * * * * *

Q. How were these drugs given to you?

A. Either through pill form or injections.

Q. Do you know — injections of what?

A. As far as I know, they were cocaine.

Q. Did you inject yourself?

A. No I didn't.

Q. Who injected you?

A. Ronald Alexander.

Under these circumstances the trial court was justified in concluding that the defendant's criminality was so extensive as to warrant the imposition of extended terms.^[5] HRS § 706-662(4).

Affirmed.

NOTES

[1] HRS § 712-1203 Promoting prostitution in the second degree. (1) A person commits the offense of promoting prostitution in the second degree if he knowingly:

(a) Advances or profits from prostitution by managing, supervising, controlling, or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes; or

(b) Advances or profits from prostitution of a person less than eighteen years old.

(2) Promoting prostitution in the second degree is a class C felony. (Emphasis added)

[2] HRS § 706-661 Sentence of imprisonment for felony; extended terms. In the cases designated in section 706-662, a person who has been convicted of a felony may be sentenced to an extended indeterminate term of imprisonment. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:

(1) For a class A felony — life;

(2) For a class B felony — twenty years; and

(3) For a class C felony — ten years.

The minimum length of imprisonment shall be determined by the board of paroles and pardons in accordance with section 706-669.

[3] § 706-662 Criteria for sentence of extended term of imprisonment for felony.

* * * * * *

(4) Multiple offender. The defendant is a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is warranted. The court shall not make such a finding unless:

(a) the defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or

(b) the maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony.

[4] HRS § 706-662(4) provides in pertinent part:

(4) Multiple offender. The defendant is a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is warranted. The court shall not make such a finding unless:

(a) the defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony;

[5] We find the defendant's contention that the trial court erred in denying his motion for new trial to be completely without merit.