78 Hawai'i 373, State v. Wells

• Citation: 78 Hawaii 373,894 P.2d 70
• Decision Date: 06 April 1995
• Docket Number: No. 17067,17067
• Parties: 78 Hawai'i 373, Blue Sky L. Rep. P 74,035 STATE of Hawai'i, Plaintiff-Appellant, v. Richard WELLS, also known as Richard Earl Wells; Joyce Wells, also known as Joyce Elizabeth Wells; Charles K.H. Wong, also known as Charles Wong; Ishmael Stagner, also known as Ish and Ishmael Stagner II; and Frederick D. King, also known as Fred King, Defendants-Appellees. STATE of Hawai'i, Plaintiff-Appellant, v. Joyce WELLS, also known as Joyce Elizabeth Wells; Richard Wells, also known as Richard Earl Wells; Charles K.H. Wong, also known as Charles Wong; Ishmael Stagner, also known as Ish and Ishmael Stagner II; and Frederick D. King, also known as Fred King, Defendants-Appellees.
• Court: Supreme Court of Hawai'i

Page 70

894 P.2d 70

78 Hawai'i 373, Blue Sky L. Rep. P 74,035

STATE of Hawai'i, Plaintiff-Appellant, v. Richard WELLS, also known as Richard Earl Wells; Joyce

Wells, also known as Joyce Elizabeth Wells; Charles K.H.

Wong, also known as Charles Wong; Ishmael Stagner, also

known as Ish and Ishmael Stagner II; and Frederick D. King,

also known as Fred King, Defendants-Appellees.

STATE of Hawai'i, Plaintiff-Appellant, v. Joyce WELLS, also known as Joyce Elizabeth Wells; Richard

Wells, also known as Richard Earl Wells; Charles K.H. Wong,

also known as Charles Wong; Ishmael Stagner, also known as

Ish and Ishmael Stagner II; and Frederick D. King, also

known as Fred King, Defendants-Appellees.

No. 17067.

Supreme Court of Hawai'i.

April 6, 1995.

Reconsideration Denied May 25, 1995.

Randal K.O. Lee, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellant.

Jeffrey T. Arakaki, on the briefs, Honolulu, for defendant-appellee Richard Wells.

Dennis Jung, Honolulu, for defendant-appellee Joyce Wells.

Richard C. Post, Honolulu, for defendant-appellee Charles Wong.

Richard Pafundi, Honolulu, for defendant-appellee Ismael Stagner.

Daphne Barbee, on the briefs, Honolulu, for defendant-appellee Frederick King.

Before MOON, C.J., KLEIN and RAMIL, JJ., BURNS, Intermediate Court of Appeals Chief Judge, in place of LEVINSON, J., Recused, and WATANABE, Intermediate Court of Appeals Judge, in place of NAKAYAMA, J., Recused.

RAMIL, Justice.

Defendants-Appellees Richard Wells (R. Wells), Joyce Wells (J. Wells), Charles K.H. Wong, Ishmael Stagner, and Frederick D. King (collectively Defendants) were charged with various violations of the Uniform Securities Act, Hawai'i Revised Statutes (HRS), Chapter 485. The trial court granted Defendants' motion to dismiss Counts 1 through 4 of the indictment because the indictment did not include the essential elements of the offenses found in the language of HRS § 485-21 (1985). Plaintiff-Appellant State of Hawai'i (Prosecution) appeals the dismissal, contending that the indictment is legally sufficient because HRS § 485-21 merely prescribes criminal penalties for Chapter 485 violations. We disagree and affirm the circuit court's dismissal of Counts 1 through 4 of the indictment.

I. FACTS

In 1988, the Prosecution brought criminal charges against Defendants for allegedly defrauding four to five hundred people of approximately $9.5 million by running a massive "Ponzi" scheme through their company, Atlantic and Pacific Trading Company, Ltd.

On January 28, 1988, the O'ahu grand jury returned a twenty-two-count indictment in Criminal Case No. 88-0147 charging Defendants with the following offenses: Failure to Register Securities; Fraudulent Sale of Securities; Failure to Register as a Salesman; Theft in the First Degree; and Unlawful Ownership or Operation of Business.

In addition, on April 7, 1988, the grand jury returned a seven-count indictment in Criminal No. 88-0562 charging Defendants with the following offenses: Failure to Register Securities; Fraudulent Sale of Securities; Failure to Register as a Salesman; Money Laundering; and Theft in the First Degree. The circuit court granted the Prosecution's motion to join the two indictments for trial.

After the indictments were handed down, R. Wells and J. Wells fled the jurisdiction. On October 24, 1989, trial proceeded against Wong, King, and Stagner. After a six-month trial, the jury found Wong guilty of one count of Failure to Register Securities, two counts of Fraudulent Sale of Securities, one count of Failure to Register as a Salesman, and two counts of Money Laundering. Stagner was found guilty of one count of Failure to Register Securities, two counts of Fraudulent Sale of Securities, and one count of Failure to Register as a Salesman. King was found guilty of one count of Failure to Register Securities and one count of Fraudulent Sale of Securities.

Thereafter, Wong, King, and Stagner appealed their convictions. We vacated the convictions and remanded the case for a new trial because of numerous discovery violations by the Prosecution. State v. King, 72 Haw. 610, 820 P.2d 664 (1991). Meanwhile, R. Wells and J. Wells were arrested by law enforcement authorities.

On April 7, 1993, a second trial began against all five Defendants, including R. Wells and J. Wells. On April 19, 1993, the parties presented their opening statements and the Prosecution proceeded to present its evidence. On April 21, 1993, Defendants moved to dismiss Counts 1 through 4 of the indictment in Cr. Nos. 88-0147 and 88-0562. Defendants claimed that they were deprived of notice of the charges because Counts 1 through 4 of the indictment failed to include an essential element of the offenses charged, namely, the total value of all money and anything else paid or lost by the victims, as set forth in HRS § 485-21, the provision prescribing criminal penalties for Chapter 485 violations. The Prosecution argued that the indictment tracked the statutory language defining the offenses charged and that HRS § 485-21 was not an essential element of Counts 1 through 4 of the indictment.

On May 4, 1993, the circuit court granted Defendants' motion to dismiss Counts 1 through 4 of the indictment without prejudice. On May 5, 1993, the Prosecution filed its notice of appeal. Thereafter, this court granted the Prosecution's motion to stay the circuit court proceedings pending disposition of this appeal.

II. DISCUSSION

A. Jurisdiction of the Prosecution's Appeal as to Stagner

"The right of appeal in a criminal case is purely statutory and exists only when given by some constitutional or statutory provision." State v. Dannenberg, 74 Haw. 75, 78, 837 P.2d 776, 778, reconsideration denied, --- Haw. ----, 843 P.2d 144 (1992) (citation omitted). The Prosecution's right of appeal in criminal cases is limited to those instances set forth in HRS § 641-13 (Supp.1992), which provides in relevant part that:

[an] appeal may be taken by and on behalf of the State from the district or circuit courts to the supreme court, subject to chapter 602, in all criminal cases, in the following instances:

(1) From an order or judgment quashing, setting aside, or sustaining a motion to dismiss, any indictment or complaint or any count thereof;

(2) From an order or judgment, sustaining a special plea in bar, or dismissing the entire case where the defendant has not been put in jeopardy [.]

(Emphases added.) Stagner contends that we lack jurisdiction to consider the merits of this appeal because the Prosecution erred in bringing its appeal under HRS § 614-13(1). ¹

The standard of review for statutory construction is well-established. The interpretation of a statute is a question of law which this court reviews de novo. Pacific Int'l Servs. Corp. v. Hurip, 76 Hawai'i 209, 216, 873 P.2d 88, 95 (1994); Franks v. City and County of Honolulu, 74 Haw. 328, 334, 843 P.2d 668, 671 (1993). In addition, "our foremost obligation is to ascertain and give effect to the intention of the legislature[,] which is to be obtained primarily from the language contained in the statute itself." Hurip, 76 Hawai'i at 216, 873 P.2d at 95 (citations omitted). And "where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning." Ing v. Acceptance Ins. Co., 76 Hawai'i 266, 270, 874 P.2d 1091, 1095 (1994) (citations omitted). Finally, in determining the purpose of the statute, "we are not limited to the words of the statute to discern the underlying policy which the legislature seeks to promulgate ... [but may] look to relevant legislative history[.]" Sol v. AIG Hawaii Ins. Co., 76 Hawai'i 304, 307, 875 P.2d 921, 924 (citation and internal quotation marks omitted), reconsideration denied, 76 Hawai'i 353, 877 P.2d 890 (1994).

We now address Stagner's contention that the Prosecution erred in bringing its appeal under HRS § 641-13(1). The trial court's dismissal of Counts 1 through 4 of the indictment resulted in the dismissal of all charges, i.e., the "entire case," against him. Therefore, Stagner argues that "this appeal can only be brought pursuant to [HRS § ] 641-13(2), if it [sic] all." Stagner's answering brief at 2. We disagree.

It appears that Stagner interprets subsections (1) and (2) of HRS § 641-13 as being mutually exclusive. It also appears that he interprets subsection (1) as applying only to orders dismissing less than the entire case and subsection (2) as applying only to orders dismissing the "entire case." While we agree that it is necessary for the entire case to be dismissed for subsection (2) to apply, there is absolutely nothing in the language of HRS § 641-13 to indicate that this would prevent subsection (1) from applying.

Stagner also argues that "because jeopardy attached when evidence was taken in this jury trial," the Prosecution cannot bring its appeal under either subsection (1) or (2) of HRS § 641-13. We disagree. Although jeopardy "attaches" in jury trials when the jury is empaneled and sworn, State v. Moriwake, 65 Haw. 47, 51, 647 P.2d 705, 709 (1982) (citation omitted), "dismissal of a charge after jeopardy attaches does not always bar further prosecution on the same charge." State v. Decenso, 5 Haw.App. 127, 136, 681 P.2d 573, 580 (1984) (citing United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65, reh'g denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 197 (1978)).

In United States v. Scott, the defendant moved to dismiss two counts of his indictment for preindictment delay. 437 U.S. at 84, 98 S.Ct. at 2190. The trial court granted the motion at the close of all the evidence, after jeopardy had attached. Id. The government appealed the dismissal and the United States Court of Appeals for the Sixth Circuit concluded that any further prosecution of the defendant was barred by the double jeopardy clause of the Fifth Amendment, and therefore dismissed the appeal. Id.

The United States...