77 Hawai'i 351, State v. Baranco

• Decision Date: 15 November 1994
• Docket Number: No. 16911,16911
• Court: Hawaii Supreme Court
• Parties: 77 Hawai'i 351 STATE of Hawai'i, Plaintiff-Appellee, v. Victor W. BARANCO and Cynthia A. Baranco, Defendants-Appellants.

Page 729

884 P.2d 729

77 Hawai'i 351

STATE of Hawai'i, Plaintiff-Appellee, v. Victor W. BARANCO and Cynthia A. Baranco, Defendants-Appellants.

No. 16911.

Supreme Court of Hawai'i.

Nov. 15, 1994.

Peter C. Wolff, Jr. of Hart & Wolff, Honolulu, for defendants-appellants.

Don Fudo, Deputy Prosecuting Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice.

Defendants-Appellants Victor W. Baranco and Cynthia A. Baranco (collectively Defendants) were indicted by Plaintiff-Appellee State of Hawai'i (Prosecution) for promoting a dangerous drug in the second degree in violation of Hawai'i Revised Statutes (HRS) § 712-1242(1)(a) (Supp.1992). Following a mistrial, Defendants filed a motion to dismiss the indictment with prejudice, arguing that a retrial would violate their constitutional right against double jeopardy. Defendants appeal the circuit court's order denying their motion to dismiss the indictment with prejudice. We affirm.

I. FACTS

Victor Baranco was a co-founder of More University, a private educational institution involved in experimental lifestyles and the study of social interaction, headquartered in California. He and his wife, Cynthia Baranco, were residents of More House Hawaii, an experimental living situation located on the North Shore of Oahu, which was affiliated with More University.

On January 18, 1989, police conducted a search of More House Hawaii pursuant to a valid search warrant. While conducting a search of Defendants' bedroom, the police recovered, among other things, approximately fifty units of the drug lysergic acid diethylamide (LSD) hidden in a Bible.

Consequently, Defendants were indicted for possessing a dangerous drug in violation of HRS § 712-1242(1)(a). Before trial, the circuit court granted Defendants' motion in limine to exclude certain evidence obtained during the search and to limit cross-examination regarding Defendants' prior "bad acts" and "other crimes."

On November 10, 1992, Defendants' jury trial began. Defendants' called as their first witness, Anthony Maxfield, the manager of More House Hawaii. During cross-examination, Maxfield testified that there were hard feelings between Wayne and Hannah Steele (also residents of More House) and Defendants. The Prosecutor then asked "[and] isn't it true some of that hard feelings arise out of the accusation that the Steeles made[,] that they were forced into prostitution by the More House?" ¹ Defendants immediately moved for a mistrial, which the circuit court granted.

Thereafter, Defendants filed a motion to dismiss the indictment with prejudice, arguing that a retrial would violate their constitutional guarantee against double jeopardy. The circuit court denied Defendants' motion. Defendants then moved for leave to file a notice of interlocutory appeal pursuant to HRS § 641-17 (1985), which the circuit court also denied. On March 4, 1993, the circuit court filed its Findings of Fact, Conclusions of Law and Order Denying Defendants' Motion to Dismiss the Indictment with Prejudice.

Thereafter, Defendants filed a notice of appeal. The Prosecution moved to dismiss Defendants' appeal in the circuit court, which the circuit court denied. The Prosecution then filed a motion to dismiss Defendants' appeal in the Hawai'i Supreme Court, arguing that the supreme court lacked jurisdiction to consider the appeal. On June 1, 1993, we denied the Prosecution's motion "without prejudice to the [Prosecution] challenging the issue of jurisdiction in its answering brief." On June 14, 1993, we denied the Prosecution's motion for reconsideration.

II. DISCUSSION

A. Appellate Jurisdiction

We address, first, the issue of appellate jurisdiction. Generally, an appeal in a criminal case is permitted only after a final judgment of the circuit court has been rendered. See HRS § 641-11. ² There is, however, an exception to this finality of judgment requirement. HRS § 641-17 (1985) provides in relevant part:

[A]n appeal in a criminal matter may be allowed to a defendant from the circuit court to the supreme court ... from a decision denying a motion to dismiss or from other interlocutory orders, decisions, or judgments, whenever the judge in the judge's discretion may think the same advisable for a more speedy termination of the case. The refusal of the judge to allow an interlocutory appeal to the appellate court shall not be reviewable by any other court.

(Emphasis added.) Because the circuit court has not rendered a final judgment, and because HRS § 641-17 specifically prohibits any court from reviewing a judge's refusal to allow an interlocutory appeal, the Prosecution contends that this court lacks jurisdiction to consider Defendants' appeal.

Defendants contend, on the other hand, that there is another exception to the finality of judgment requirement of HRS § 641-11. Specifically, Defendants argue that an order denying a motion to dismiss an indictment based on double jeopardy grounds falls into the "collateral order" exception to the final judgment rule. The collateral order exception was initially announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under this exception, certain orders fall "in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1225-26.

In support of their argument that the collateral order exception applies to this case, Defendants point to the United States Supreme Court's decision in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). In Abney, the Supreme Court permitted an interlocutory appeal of an order denying a pretrial motion to dismiss the indictment on double jeopardy grounds. Id. at 662, 97 S.Ct. at 2041. The Supreme Court held that the district court's order was a "final decision" within the meaning of 28 U.S.C. § 1291, ³ and thus immediately appealable. Id. at 651, 97 S.Ct. at 2034. Although an order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, the Supreme Court found that such an order falls within the "collateral order" exception to the final judgment rule announced in Cohen. Id. at 663, 97 S.Ct. at 2042.

The Supreme Court explained that, under the collateral order exception, an interlocutory order is appealable if it: (1) fully disposes of the question at issue; (2) resolves an issue completely collateral to the merits of the case; and (3) involves important rights which would be irreparably lost if review had to await a final judgment. Abney, 431 U.S. at 658-659, 97 S.Ct. at 2039-2040. The Court concluded that a decision on a double jeopardy motion fully disposes the question at issue and is collateral to the issue of guilt. Id. at 659, 97 S.Ct. at 2040. The Court further stated that the rights protected by the double jeopardy clause would be "significantly undermined" if appellate review were postponed until after trial. Id. at 660, 97 S.Ct. at 2040. Indeed, the Supreme Court "has long recognized that the Double Jeopardy clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Id. (emphasis in original).

[E]ven if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.

Id. at 661-62, 97 S.Ct. at 2041 (footnote omitted) (emphasis in original).

The collateral order exception, initially announced in Cohen, supra, was subsequently adopted by this court. See, e.g., International Sav. & Loan Ass'n v. Woods, 69 Haw. 11, 731 P.2d 151 (1987); Association of Owners v. Swinerton & Walberg Co., 68 Haw. 98, 705 P.2d 28 (1985); MDG Supply, Inc. v. Ellis, 51 Haw. 480, 463 P.2d 530 (1969), reh'g denied, 51 Haw. 479, 463 P.2d 525 (1969), cert. denied, 400 U.S. 868, 91 S.Ct. 99, 27 L.Ed.2d 108 (1970). Although we have not yet applied the collateral order exception to appeals from criminal cases, we find the rationale of the Supreme Court's decision in Abney compelling. ⁴ We agree that "if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his [or her] double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." Abney, 431 U.S. at 662, 97 S.Ct. at 2041 (footnote omitted) (emphasis in original). Therefore, we adopt the Abney rationale and hold that the collateral order exception to the final judgment rule permits an interlocutory appeal of an order denying a pretrial motion to dismiss an indictment on double jeopardy grounds.

B. Does Retrial Violate Defendants' Right Against Double Jeopardy?

Defendants contend that the circuit court erred in denying their motion to dismiss the indictment with prejudice because a retrial would violate their constitutional right against being placed twice in jeopardy for the same offense. On appeal, the issue whether a defendant's constitutional right against double jeopardy will be violated unless the indictment is dismissed is a question of law. United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir.1987). We review a question of law under the right/wrong standard. In re Estate of Holt, 75 Haw. 224, 857 P.2d 1355, reconsideration denied, 75 Haw. 580, 863...