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Orlando
T. GANAL Sr.
Classification: Mass murderer
Characteristics: Jealousy
- Arson
Number of victims: 4
Date of murders: August 25,
1991
Date of arrest:
Same day
Date of birth: 1954
Victims profile: Aradina and Santiago Dela
Cruz (his
wife parents) /
Joshua, 10-month-old and Kalah Touchette, two-year-old
(the
children of the brother of his wife's lover)
Method of murder:
Shooting
- Fire
Location: Honolulu, Hawaii, USA
Status: Sentenced to life in prison on April 7, 1993
Hawaii's most notorious previous mass murder to Xerox shooting took
place Aug. 25, 1991, when Orlando Ganal Sr. shot his wife's parents
in a jealous rage and then torched the Kailua home where his wife's
lover lived.
Four people died, including two children.
1991: Four people are killed and
four are injured, and a home and workplace are burned in a
nighttime trail of fire and blood that Honolulu police link to a
love triangle.
Orlando Ganal Sr., who was later
convicted of murder, is so enraged that his estranged wife, Mabel,
is seeing someone that he goes to her parents' Waipahu home, shoots
them to death, then wounds his wife and son.
He then firebombs the Kailua home
of Michael and Wendy Touchette because of Michael's brother's
relationship with Mabel. The fire kills the couple's two
young children. Wendy and Michael Touchette was severely burned.
State v. Ganal
5/8/1996
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)
§ 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
following day,
Mabel called Ganal periodically to see if Jun Jun had returned home,
but she learned that he had not.
B. The
Night of August 25, 1991
1. The Dela Cruz House in
Waipahu
At approximately 7:00
p.m., on August 25, 1991, Jun Jun's girlfriend dropped Jun Jun off
at the Dela Cruz house. Mabel told Jun Jun that she wanted him to go
to his father, but when Jun Jun called to ask Ganal to pick him up,
Jun Jun and Ganal began to argue. Mabel then called Ganal to
apologize for Jun Jun, but Ganal swore at her, accusing her of
turning Jun Jun against him. Mabel, Jun Jun, and the Dela Cruzes
then ate dinner, watched television, and went to sleep.
Mabel testified at trial
that, on the night of August 25, 1991, she was sleeping on a couch
at her parents' house when she awoke to the sound of the front door
being forced open. Mabel then looked up, saw a silver-colored gun,
and was shot along the side of her head. She managed to crawl to her
brother's room and then to her father's room, but the doors to both
rooms were locked. Meanwhile, the intruder was kicking and punching
her, but she was unable to see who it was. Mabel's father awoke,
came out of his room, and tried to stop the intruder, but the
intruder shot him.
Jun Jun testified at
trial that he was sleeping on the floor next to the television in
the Dela Cruzes' living room when he awoke to the sound of his
mother yelling his name. He opened his eyes and saw Ganal in the
light from the balcony. Ganal then shot Jun Jun in the mouth. Jun
Jun managed to elude Ganal and ran downstairs to a neighbor's home.
Jun Jun noted that Ganal was wearing blue jeans.
Mabel's brother, Diego Dela Cruz (Diego), testified that he was
asleep in his room when he was awakened by the sound of gunshots and
heard Mabel screaming in the living room. Fearing for his family's
safety, Diego immediately knocked out his bedroom jalousies and
helped his wife and child climb outside. As they crouched outside,
Diego heard pounding on his bedroom door and then the sound of his
father moaning in the hallway. When he climbed back inside, Diego
found his mother bent over a sofa, dead, and his father sliding down
the stairway, covered with blood and moaning. Aradina Dela Cruz died
as a result of seven gunshot wounds. Santiago Dela Cruz died as a
result of multiple internal injuries caused by three gunshot wounds.
Rosemary
Nishimura, who lived just north of the Dela Cruz house, testified
that, at approximately 11:00 p.m., she heard a loud noise, like a
pipe falling on cement, followed by six shots. She looked out toward
the Dela Cruz house and saw a man in dark clothing, who appeared to
be reloading a gun. Ven Malapit, another of the Dela Cruzes'
neighbors, heard the noises and gunshots, looked out his garage
window, and saw a man, possibly Filipino, holding a gun and dressed
in dark clothes, run towards a dark-colored Chevrolet truck with a
lighter-colored tailgate and drive away.
2. The Touchette House in
Kailua
Barbara Fitzpatrick, a
neighbor of the Touchettes, testified at trial that, on the night of
August 25, 1991, she heard the sound of glass breaking, followed by
a small explosion. She looked out to see a Filipino or local man,
wearing a dark jacket and jeans, carrying an object and walking very
fast toward a dark gray or blue truck. The man put the object in the
truck bed, got into the truck, and drove away quickly. Fitzpatrick
then noticed a fire in the Touchettes' house. Neighbors Gary
Guillermo and Clayt Kobashigawa corroborated Fitzpatrick's testimony.
Wendy Touchette testified
that on the same night, she, her husband, and their two children
were getting ready for bed when they received a phone call. Michael answered
the phone and said "hello" a few times, but no one responded.
Michael, Wendy, and the two children were all sleeping in the main
bedroom when Wendy awoke to the sound of Michael screaming. She got
up and saw Michael on fire. Michael was saying, "He was here, he's
here, he was here." Wendy said, "What?" and Michael said, "Orlando,"
and "Get out." Soon thereafter, Wendy was also on fire, and she
tried unsuccessfully to get to the bathroom for some water, but the
fire was too hot.
Michael
and Wendy struggled to get out of the house, but could not open the
front door because it was somehow locked from the outside. Wendy
eventually managed to reach the kitchen door, where someone pulled
her out. The Touchette children, Joshua and Kalah, died of thermal
burns and smoke inhalation at the scene. Michael died later, on
September 23, 1991, as a result of complications related to severe
burns over eighty percent of his body. Wendy was severely burned
over approximately forty percent of her body and suffered scarring
over much of her face.
Fire investigator Glen
Solem testified at trial that the fire at the Touchette house was
intentionally started with a liquid accelerant, probably gasoline.
Solem further testified that, based on the burn patterns and the
patterns of broken glass on the floors, it appeared that two fires
had been started separately in the living room and the bedroom from
gasoline being thrown into the house.
3. The Young Laundry
Premises
Young Laundry's night watchman, Suesue Faamamalu, testified at trial
that he was on his patrol of the Young Laundry premises at
approximately 12:00 midnight on August 25, 1991, when he discovered
a fire burning on the second floor of the building.
Young
Laundry's manager, Michael Drace, testified at the grand jury
proceedings that the Young Laundry plant operates twenty-four hours
a day and that there are people working in the plant at all hours.
Drace further testified that the sprinkler system extinguished the
fire.
Fire
Investigator Warner Pukini testified at trial that his investigation
indicated that the fire was intentionally set with a combustible
liquid. The burn patterns suggested that the combustible liquid was
poured towards the back exit, where they found a gas can that they
suspected contained the accelerant.
Ganal,
Mabel, Jun Jun, and Ganal's tenant, Charles Robinson, all identified
the gas can found at the Young Laundry premises as being similar to
one that Ganal kept in his tool shed at home. After Ganal's arrest,
a police search of Ganal's home, garage, and tool shed produced no
gas can.
C. Events
After August 25, 1991
Ganal testified that,
after his phone conversation with Mabel, during the evening of
August 25, 1991, he blacked out. The next thing he remembered was
waking up the next morning perspiring in his truck at a beach in
Makaha. He took off his clothes and his watch, left the key in the
ignition, and went into the water dressed only in his underwear.
Ganal further testified
that, while he was in the water, someone stole his clothes, and,
when he attempted to give chase, he cut his heel on a sharp object
in the water. Unable to pursue the thieves, he drove home.
As Ganal drove home, the
police were already aware of the events that had transpired at the
Dela Cruz house, the Touchette house, and the Young Laundry premises.
While on patrol, Honolulu police officers Robert Burns and George
Clark recognized Ganal's license plate number and followed him.
Once Ganal arrived at his
home, he began to exit his truck to open the gate to his driveway,
at which point officers Burns and Clark shouted to Ganal to stop and
put his hands
up. The officers testified that, upon approaching Ganal with their
guns drawn, they could not see Ganal's left hand, because he kept it
in the truck at all times.
Fearing
for their safety, the officers instructed Ganal to lie face down on
the ground, but Ganal would not comply. Burns and Clark moved in
closer and grabbed Ganal's left hand; Ganal resisted by yelling,
kicking, and swinging his arms, refusing to be placed in a prone
position on the ground.
The
officers swept Ganal's feet out from under him, placed him in
handcuffs, and informed him that he was under arrest for murder.
During the scuffle, Ganal suffered bruises on his face, arms, and
rib area as well as a broken nose. Both Officers Burns and Clark
denied hitting Ganal or seeing anyone else hit him.
At
approximately 6:40 a.m., Detective Vernon Santos arrived at the
scene of the arrest. By that time, Ganal had been moved to a blue-and-white
police vehicle. Detective Santos informed Ganal that he was
investigating a murder and that a shooting had occurred at Ganal's
mother-in-law's house; he sought to obtain Ganal's cooperation in
filling out an Honolulu Police Department (HPD) Consent to Search
form (Form 393 or consent form) for Ganal's truck.
Detective
Santos testified that Ganal appeared calm and that Ganal indicated
he could read, write, and understand English. Detective Santos read
through the Form 393 to inform Ganal of his rights and asked Ganal
for his consent to search his truck. Ganal indicated that he
understood his rights, read the form for some time, appeared to
understand it, and signed it. The search of Ganal's truck revealed
one spent shell, which subsequently was determined to match shells
recovered at the Dela Cruz and Touchette houses.
Ganal, on the other hand, testified that, when he arrived home and
the police told him to put his hands up and get on the ground, he
complied. After the police handcuffed his hands behind his back,
they started kicking him on his ribs, thighs, elbows, and arms, and
threatened to "break face." Ganal also claimed that Officer Burns
pounded his head into the ground.
Ganal
further testified that he signed the consent form because Detective
Santos told him that, if he did not sign the form, "they going make
it hard for me." Ganal asserted that he did not realize that
Detective Santos was asking for his permission to search the truck
and that he thought that, by saying "make it hard," Detective Santos
meant that the officers would "beat him up again" if he did not
cooperate. Ganal admitted that Detective Santos allowed him to read
the consent form but he denied that Detective Santos read the form
to him.
On August
30, 1991, twelve-year-old Justin Daite was snorkeling in Mokuleia
when he saw and retrieved a gun and sledgehammer lying on the ocean
bottom in approximately three to five feet of water and turned the
articles over to the police. The police searched the shrubs in the
surrounding area and found a pair of white Reebok shoes, grey socks,
a black vinyl jacket with an empty bottle in the pocket, a pair of
jeans, a maroon belt, and another empty brown bottle.
In the jeans' pockets,
the officers found a BMW key ring, some loose change, and a letter
from the Hawai'i State Department of Education addressed to the
parents of Orlando Ganal, Jr. Written on the back of the envelope of
the letter was Jun Jun's girlfriend's address. Jun Jun's girlfriend
testified that she had given Ganal the address over the telephone on
August 24, 1991.
Mabel identified the BMW
key ring retrieved from Mokuleia as belonging to her and the shoes
and belt found at Mokuleia as belonging to Ganal. Jun Jun also
identified the black jacket recovered from Mokuleia as Ganal's. HPD
Detective Charles Davis testified
that marks on the door panel to the Dela Cruz house, which had been
forcibly broken into on the night of the homicides, were consistent
with the use of a sledgehammer like the one found at Mokuleia.
The gun found at Mokuleia
also matched four empty shell casings and a bullet recovered from
the Dela Cruz house, an empty shell casing recovered from the road
in front of the Touchette home, and the empty shell casing found in
Ganal's truck.
II. PROCEDURAL
BACKGROUND
On
August 29, 1991, the grand jury returned a five-count indictment
against Ganal, which provided:
The Grand
Jury charges:
COUNT I : On or about the
25th day of August, 1991, in the City and County of Honolulu, State
of Hawaii, ORLANDO GANAL, SR., did intentionally or knowingly cause
the death of more than one person in the same or separate incident,
thereby committing the offense of Murder in the First Degree, in
violation of Sections 707-701(1)(a) and 706-656 of the Hawaii
Revised Statutes.
COUNT II : On or about
the 25th day of August, 1991, in the City and County of Honolulu,
State of Hawaii, ORLANDO GANAL, SR., did intentionally commit an act
which constituted a substantial step in a course of conduct intended
or known to cause the death of more than one person in the same or
separate incident, thereby committing the offense of Attempted
Murder in the First Degree, in violation of Sections 705-500,
707-701(1)(a) and 706-656 of the Hawaii Revised Statutes.
COUNT III : On or about
the 24th day of August, 1991, in the City and County of Honolulu,
State of Hawaii, ORLANDO GANAL, SR., did knowingly possess or
intentionally use or threaten to use a firearm while engaged in the
commission of a felony, whether the firearm was loaded or not, and
whether operable or not, thereby committing the offense of
Possession, Use or Threat to Use a Firearm in the Commission of a
Felony, in violation of Section 134-6(a) and (d) of the Hawaii
Revised Statutes.
COUNT IV : On or about the 1st day of May, 1991, to and including
the 10th day of July, 1991, in the City and County of Honolulu,
State of Hawaii, ORLANDO GANAL, SR., threatened, by word or conduct
to cause bodily injury to David Touchette, by threatening David
Touchette on more than one occasion for the same or similar purpose,
in reckless disregard of the risk of terrorizing said David
Touchette, thereby committing the offense of Terroristic Threatening
in the First Degree, in violation of Section 707-716(1)(a) of the
Hawaii Revised Statutes.
COUNT V :
On or about the 26th day of August, 1991, in the City and County of
Honolulu, State of Hawaii, ORLANDO GANAL, SR., did intentionally
damage property, and thereby recklessly placed another person in
danger of death or bodily injury, thereby committing the offense of
Criminal Property Damage in the First Degree, in violation of
Section 708-820 of the Hawaii Revised Statutes.
On January 15, 1992,
Ganal filed a motion for a bill of particulars for, among other
things, the felony which formed the basis of the use of a firearm
charge in Count III. The motion was granted, and the prosecution
responded by alleging that the felony involved was Terroristic
Threatening in the First Degree.
On
February 7, 1992, Ganal filed a Motion to Dismiss Count V for
Insufficient Evidence and a Motion to Suppress Evidence secured from
his truck. Both motions were denied. On February 19, 1992, Ganal
filed a motion to dismiss Count II for violation of HRS §
701-109, which was also denied.
Trial
began on March 1, 1993, and the jury returned a verdict of guilty of
all counts on
April 7, 1993. On April 23, 1993, Ganal filed another motion to
dismiss Count II for a violation of HRS § 701-109,
arguing that Counts I and II merged for purposes of sentencing.
Ganal was granted leave to orally modify the motion to include
double jeopardy at the hearing on the motion, and the motion was
denied. Judgment was entered on July 1, 1993, and this timely appeal
followed.
III. Discussion
*****
Disposition
Conviction and sentence as to counts II and III is reversed and
convictions and sentences on all other counts is affirmed.
