State v. Melear

Citation63 Haw. 488,630 P.2d 619
Decision Date30 June 1981
Docket NumberNo. 7705,7705
CourtSupreme Court of Hawai'i
PartiesSTATE of Hawaii, Plaintiff-Appellee, v. Charles Franklin MELEAR, Defendant-Appellant.

Syllabus by the Court

1. Article I, Section 11 of the Hawaii State Constitution is not a self-executing provision. The amendment was established to ensure an independent grand jury.

2. The mere fact that appellant was indicted and another was not, without more, does not establish a constitutional violation. The accused has the burden of establishing prejudicial prosecutorial misconduct before the grand jury.

3. To justify an investigative stop, short of probable cause, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." The ultimate test in these situations must be whether from these facts, measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate.

4. A precise correlation between a police radio description and the actual appearance of the suspect is not required.

5. A brief investigatory stop may develop into probable cause to arrest and search.

6. Although not dispositive, flight from the police is a factor which may support a finding of probable cause.

7. The responsibility for maintaining the delicate balance between probative value and prejudicial effect lies largely within the discretion of the trial court which will not be reversed absent an abuse.

8. The Fifth Amendment of the United States Constitution prohibits either adverse comment by the prosecutor or instructions by the court that silence by the accused is evidence of guilt.

9. When a prosecutor comments on an accused's failure to testify, reversal of the conviction is required only when the language used in the statement was "manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."

10. A defendant is entitled to reasonable notice of attempts to impose extended term and repeat offender sentences.

11. The standard by which punishment is to be judged cruel and unusual is whether in light of developing concepts of decency and fairness, the prescribed punishment is so disproportionate to the conduct proscribed and is of such duration or an outrage to the moral sense of the community. Jerry I. Wilson, Honolulu (Wilson & Berman, Honolulu, of counsel), for defendant-appellant.

Glenn M. Miyajima, Deputy Pros. Atty., Honolulu (Archibald C. K. Kaolulo, Deputy Pros. Atty., Honolulu, on the briefs), for plaintiff-appellee.

Before RICHARDSON, C.J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

OGATA, Justice.

Defendant-appellant, Charles Franklin Melear (hereinafter appellant), appeals both his conviction by jury of burglary in the first degree, 1 and the subsequent imposition of a twenty-year sentence under the extended term statute with the additional requirement of his serving a five-year minimum term. We affirm.

I.

On April 22, 1979, at about 1:45 p. m., Barbara Makus, a Canadian tourist, returned to her room at the Edgewater Hotel in Waikiki and found appellant going through her belongings and that of her roommate, Janice Barnes. Upon being discovered, appellant attempted to leave the room with a suitcase and a brown paper bag. Ms. Makus was able to pull the suitcase away, but appellant fled via the fire escape still clutching the brown paper bag.

Bystanders on the street below heard Ms. Makus scream that she had been robbed by appellant. They gave chase to appellant, whom they had seen walking down the fire escape. This chase led to the Royal Hawaiian Hotel, but appellant was able to elude his pursuers.

Meanwhile, the police responded to a reported burglary at the Edgewater Hotel. After arriving at the hotel, the police broadcasted over the radio a description of the suspect: a local male with short black hair, mustache, no shirt, blue shorts, tattoos on the body, carrying a white T-shirt, and seen running towards Lewers Street. Officers Michael Church and Andrew Okada heard the description of the suspect and observed a man generally matching the description walking near the Hyatt Regency Hotel carrying a white pizza box in an upright position. Officer Okada asked the man, identified as appellant, to stop and show some identification, whereupon Okada stated the reason for the stop. Appellant placed the pizza box on the ground and then ran from the police. After a brief chase, the officers caught appellant and after a struggle, arrested him. 2

Appellant was subsequently indicted by the Oahu Grand Jury on August 8, 1979, for burglary in the first degree. At trial, after a jury was impaneled, appellant's council made several oral motions which were denied by the trial court. 3 Appellant was convicted of the offense charged and sentenced under the extended term and repeat offender provisions of our statutes. He now appeals raising the following issues:

(1) Whether the trial court erred in denying appellant's motion to dismiss the indictment due to the absence of grand jury counsel;

(2) Whether the trial court erred in admitting the pellet gun into evidence;

(3) Whether the trial court erred in failing to declare a mistrial or in failing to dismiss the charges against appellant due to the prosecutor's improper remarks during closing argument; and

(4) Whether the trial court erred in granting the State's motion for an extended term sentence.

II.

Appellant asserts that the trial court erred in not dismissing the indictment because grand jury council had not been appointed as required by Article I, Section 11 of the Hawaii State Constitution. 4 We recently examined this issue in State v. Rodrigues, 63 Haw. ---, 629 P.2d 1111 (1981), and find Rodrigues to be controlling.

In Rodrigues, supra, we held that Article I, Section 11 of our State Constitution was not a self-executing provision. The amendment was established to ensure an independent grand jury. We also found that the independent grand jury counsel was created with the intent of relieving the prosecutor of the burden of advising the grand jury on matters of law. In addition, the grand jury counsel would not serve as an advocate on behalf of the accused. Thus, the trial court was correct in not dismissing the indictment for failure to appoint grand jury counsel.

Appellant also argues that different treatment of persons before the grand jury violated his due process and equal protection rights. Appellant maintains that the procedures used in returning the indictment against appellant differed from those used in another case where no indictment was returned.

On many occasions, we have examined due process violations in grand jury proceedings. In State v. Joao, 53 Haw. 226, 491 P.2d 1089 (1971), we established that under the due process clause, a defendant is entitled to a fair and unbiased grand jury. Thus, due process is violated when the prosecutor engages in conduct that invades the province of the grand jury or induces action other than that which the jurors in their uninfluenced judgment deem warranted on the evidence fairly presented to them. Then in State v. Layton, 53 Haw. 513, 497 P.2d 559 (1972), and in State v. Murphy, 59 Haw. 1, 575 P.2d 448 (1978), we held that the excessive use of hearsay in the grand jury violated defendant's due process right. Next, in State v. Bell, 60 Haw. 241, 589 P.2d 517 (1978), we held that due process is not violated by the prosecutor's failure to present exculpatory evidence to the grand jury. Finally, in State v. O'Daniel, 62 Haw. 518, 616 P.2d 1383 (1980), we held that the failure of prosecutor to instruct the grand jurors of a lesser included offense did not violate due process.

The mere fact that appellant was indicted while another person was not is insufficient to find a constitutional violation. Appellant has the burden of proving prejudicial prosecutorial misconduct before the grand jury. State v. Rodrigues, supra; State v. Scotland, 58 Haw. 474, 572 P.2d 497 (1977). Our review of the record reveals that there is no evidence to support this allegation. Accordingly, the trial court's action in not dismissing the instant indictment was proper.

III.

Appellant argues that the initial stop by Officers Church and Okada constituted an illegal arrest and that any evidenced seized therein was tainted and should have been suppressed as the fruit of the illegal arrest. 5 In addition, appellant contends that the introduction of the pellet gun into evidence was more prejudicial than probative.

It is well established that a law enforcement officer may "in appropriate circumstances and in appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v. Barnes, 58 Haw. 333, 337, 568 P.2d 1207, 1211 (1977). We stated in State v. Barnes, supra, at 338, 568 P.2d at 1211:

To justify an investigative stop, short of an arrest based on probable cause, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." The ultimate test in these situations must be whether from these facts, measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate. (Citations omitted.)

By these standards, we are firmly convinced that in this case, the stop of appellant was proper. As the United States Supreme Court noted in Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972):

A brief stop of a suspicious individual, in order to determine his...

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