79 Hawai'i 40, State v. Makaila

• Decision Date: 14 June 1995
• Docket Number: No. 18553,18553
• Citation: 897 P.2d 967,79 Hawaii 40
• Parties: 79 Hawai'i 40 STATE of Hawai'i, Plaintiff-Appellee, v. George MAKAILA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 967

897 P.2d 967

79 Hawai'i 40

STATE of Hawai'i, Plaintiff-Appellee, v. George MAKAILA, Defendant-Appellant.

No. 18553.

Supreme Court of Hawai'i.

June 14, 1995.

Paul J. Cunney, on the briefs, Honolulu, for defendant-appellant George Makaila.

Alexa M. Fujise, Deputy Pros. Atty., on the briefs, Honolulu, for plaintiff-appellee, State of Hawai'i.

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

PER CURIAM.

Counsel for the defendant-appellant George Makaila, deceased, moves this court for reconsideration of its April 10, 1995 order dismissing the appeal and denying his motion to vacate Makaila's judgment of conviction for murder.

For the following reasons, we grant the motion for reconsideration in part and vacate our order dismissing the appeal. Pursuant to Hawaii Rules of Appellate Procedure (HRAP) Rule 43(a) ¹, this court will consider a motion for substitution of party and allow the appeal to proceed on the merits as provided herein.

To the extent that State v. Gomes, 57 Haw. 271, 554 P.2d 235 (1976), is inconsistent with this opinion, it is overruled.

I. BACKGROUND

Makaila was convicted of a single count of murder, in violation of Hawaii Revised Statutes (HRS) § 707-701 (1985), and was sentenced to life imprisonment with the possibility of parole. Makaila timely filed a notice of appeal on November 16, 1994. On February 26, 1995, while the appeal was pending, Makaila died of cancer. On March 22, 1995, counsel for Makaila filed a one paragraph motion asking the court to vacate the judgment of conviction and abate the prosecution pursuant to Gomes. ² Instead of vacating the judgment of conviction, we issued an order dismissing the appeal pursuant to HRAP Rule 43(a).

On April 19, 1995, counsel for Makaila moved for reconsideration. Counsel asked this court to abide by its prior decision in Gomes and vacate the judgment of conviction. Counsel asserted that the family of George Makaila had an interest in seeing the conviction vacated and opined that this interest was protected by the due process clauses of the United States and Hawai'i Constitutions. In an appended affidavit, a Makaila family member stated that the family sought to have Makaila's name vindicated by appeal or by vacation of the conviction.

Recognizing that our order of dismissal was a departure from our earlier ruling in Gomes, we (1) directed the State to file a response to the motion to vacate judgment and (2) allowed counsel for Makaila to file a reply to the State's memorandum. In its response, the State acknowledged the Gomes rule, but queried whether this court should reevaluate the holding.

The issue for our consideration is whether a judgment of conviction following a trial on the merits in a criminal case must be vacated and the prosecution abated when a defendant dies pending his or her appeal.

II. DISCUSSION

The federal courts have consistently held that death pending appeal of a criminal conviction from the trial court abates not only the appeal, but also all proceedings in the prosecution from its inception. Annotation, Abatement Effects of Accused's Death Before Appellate Review of Federal Criminal Conviction, 80 A.L.R. Fed. 446 (1986). Where a defendant dies pending appeal, the appeal is dismissed and the cause remanded to the trial court with instructions to vacate the judgment and dismiss the indictment. See, e.g., United States v. Oberlin, 718 F.2d 894, 895 (9th Cir.1983). Such abatement prevents recovery against the decedent's estate if there is a fine, and the abated conviction cannot be used in any related civil litigation against the estate. Oberlin, 718 F.2d at 895 (citations omitted). The rationale has been expressed as follows:

[W]hen an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an "integral part of [our] system for finally adjudicating [his] guilt or innocence."

United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.1977) (quoting Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956)). When, however, a criminal defendant dies pending a discretionary petition for writ of certiorari to the United States Supreme Court, the petition has been dismissed and the conviction stands. Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976).

The majority of state jurisdictions also abate the prosecution ab initio. See Annotation, Abatement of State Criminal Cases by Accused's Death Pending Appeal of Conviction--Modern Cases 80 A.L.R. 4th 189 (1990). ³ As an alternative, a second group of states has allowed the appeal to be decided on the merits after the death of a criminal defendant. See, e.g., State v. Jones, 220 Kan. 136, 137, 551 P.2d 801, 804 (1976); Gollott v. State, 646 So.2d 1297 (Miss.1994); State v. McGettrick, 31 Ohio St.3d 138, 31 OBR 296, 509 N.E.2d 378 (1987); Commonwealth v. Walker, 447 Pa. 146, 147-48, 288 A.2d 741, 742 (1972); State v. Christensen, 866 P.2d 533 (Utah 1993); ⁴ State v. McDonald, 144 Wis.2d 531, 424 N.W.2d 411 (1988).

For example, in McGettrick, the Ohio Supreme Court expressed dissatisfaction with both the majority rule and the alternative, i.e., leaving the conviction in place while dismissing the appeal. The court explained its dilemma as follows:

To hold as the appellant seeks us to hold would effectively preclude a convicted criminal defendant from exercising his constitutional right to a direct review of his criminal conviction. ⁵ This would be so even if there was a major prejudicial error committed before or during trial, or, not inconceivable, it was later shown that the deceased had not committed the crime for which he had been convicted. Such a holding would be violative of the convicted defendant's fundamental rights, even though he be deceased.

Alternately, the defendant-appellee's counsel would have us hold that the death of the defendant during the pendency of his appeal renders the appeal moot and since such defendant would not have had his full right of review, the appeal should be dismissed, the original judgment of conviction vacated and the original indictment dismissed. To accept appellee's position would require us to ignore the fact that the defendant has been convicted and, therefore, no longer stands cloaked with the presumption of innocence during the appellate process. Such a holding would not be fair to the people of this state who have an interest in and a right to have a conviction, once entered, preserved absent substantial error.

McGettrick, 31 Ohio St.3d at 140-41, 509 N.E.2d at 380. Consequently, the court declined either alternative offered by the parties and allowed, by motion, for the substitution of another person for the deceased criminal defendant, in accordance with an appellate rule similar to our own. McGettrick, 31 Ohio St.3d at 141-43, 509 N.E.2d at 381-82. ⁶ If no personal representative were appointed within a reasonable period of time, the State could suggest the death on the record, and the appellate court could substitute any proper party, including the decedent's attorney of record, as a party-defendant and proceed with the appeal. Id. If no substitution were sought, the McGettrick court indicated that the court of appeals could dismiss the appeal as moot and vacate the original conviction and all related criminal proceedings. Id.

In reaching what it regarded as the best solution, the McGettrick court noted that it was in the interests of the defendant, the defendant's estate, and society that any challenge initiated by a defendant to the regularity of a criminal proceedings be fully reviewed and decided by the appellate process. See also Jones, 551 P.2d at 801 (the interests of the family of the defendant and the public in the final determination of a criminal case, as well as the fact that collateral rights might be affected by the criminal proceeding, warranted the conclusion that the appeal should be adjudicated on its merits despite the defendant's death); Walker, 288 A.2d at 743 (the Pennsylvania Supreme Court, rejecting a motion by the defense for abatement ab initio and a motion by the prosecution to dismiss, concluded that it was in the interests of both the defendant's estate and society that any challenge initiated to the regularity or constitutionality of a criminal proceeding be fully reviewed and decided by the appellate process).

Similarly, in McDonald, the Wisconsin Supreme Court recognized that a criminal defendant's right to a direct appeal is an integral part of a final determination of the merits of the case and serves as a safeguard to protect defendants against errors in criminal proceedings. Moreover, because collateral proceedings could be affected by the outcome of a criminal case, the McDonald court ruled that it was in the interest of society to have a complete review of the merits of the criminal proceeding. Having determined that society and the deceased's estate both have real interests in a final determination of the defendant's appeal, the court held that the criminal appeal should continue. McDonald, 144 Wis.2d at 539, 424 N.W.2d at 415. ⁷

In Gollott, the Mississippi Supreme Court overruled previous decisions that required the dismissal of an appeal while letting the criminal conviction stand when a criminal defendant died pending appeal. To explain its change of view, the court stated:

We are no longer of the opinion that the abatement ab initio rule obviously results in a "miscarriage of justice." There are essentially three reasons for penal statutes in our justice system: (1) to protect society from dangerous individuals; (2) to hopefully rehabilitate convicted criminals; and (3) to deter others from violating the law. Following the abatement ab initio rule does not undermine any of these purposes....