Bates v. Hawkins

• Decision Date: 29 December 1970
• Docket Number: No. 5084,5084
• Citation: 478 P.2d 840,52 Haw. 463
• Parties: Jesse James BATES and William Kalani Medeiros, Jr., Petitioners, v. The Honorable Allen R. HAWKINS, as Judge of the First Circuit Court of the State of Hawaii, and Captain George Kishi, as Superintendent of Halawa Jail, Respondents.
• Court: Hawaii Supreme Court

Page 840

478 P.2d 840

52 Haw. 463

Jesse James BATES and William Kalani Medeiros, Jr., Petitioners, v. The Honorable Allen R. HAWKINS, as Judge of the First Circuit Court of the State of Hawaii, and Captain George Kishi, as Superintendent of Halawa Jail, Respondents.

No. 5084.

Supreme Court of Hawai'i.

Dec. 29, 1970.

Syllabus by the Court

1. In HRS § 709-3, which mandates release on bail except for offenses punishable by imprisonment for life not subject to parole when proof is evident or the presumption great, the words 'proof' and 'presumption' relate to the crime with which the person seeking release on bail is charged, not to any crime such person may commit if he is released.

2. In a bail hearing, the trial court man not consider newspaper articles, for any conclusion based thereon as to possible violence is pure speculation.

3. The trial court may not deny bail merely on representation of the prosecutor that the presumption of guilt is great.

4. In a bail hearing, indictment has no evidentiary value relative to accused's guilt.

5. In a bail hearing, the burden of proving that proof is evident or the presumption great is upon the State.

6. The burden of the State to prove that proof is evident or the presumption great is not proof beyond a reasonable doubt. The burden is met when the circumstances disclosed indicate a fair likelihood that the accused is in danger of a jury verdict of an offense punishable by imprisonment for life not subject to parole.

7. Bail hearing may be held in camera.

8. In a bail hearing, affidavits and counter-affidavits may be used, but if defendant objects to affidavits, prosecution must produce witnesses.

David C. Schutter, Honolulu, for Bates.

James T. Leavitt, Jr., Deputy Public Defender, Honolulu, for Medeiros.

William H. Yim and E. John McConnell, Jr., Deputy Attys. Gen., for Judge Hawkins.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON, JJ., and WONG, Circuit Judge, in place of KOBAYASHI, J., absent on account of illness.

MARUMOTO, Justice.

Petitioners, Jeses James Bates and William Kalani Medeiros, Jr., are under indictment for first degree murder in Criminal No. 41618 of the first circuit court.

In the circuit court, petitioners moved for release on bail under HRS § 709-3, which mandates such release, except for offenses punishable by imprisonment for life not subject to parole 'when proof is evident or the presumption great.'

The court denied the motion at a hearing confined to presentation of argument. It took no evidence of facts relevant to the motion in the presence of petitioners or their counsel, and, if it had any such evidence, it did not disclose the same to petitioners or their counsel. In denying bail, it stated that it did so for two reasons: first, the statutory requirement that proof be evident or the presumption great was satisfied by the fact that petitioners were indicted and by the representation of the prosecutor who handled the grand jury proceedings that in his opinion the presumption of petitioners' guilt was great; and, second, there were 'enough facts in the public press to inform the court that there have been tragedy here, violence concerning other violence, one violence built upon another, and I think that a certain amount of protection to those who testify should be granted * * *.'

Following the circuit court denial of bail, petitioners filed in this court a petition for habeas corpus directed to the presiding judge of the circuit court and to the superintendent of the jail where he is presently incarcerated. In lieu of the requested writ, we issued to the presiding judge an order to show cause why petitioners should not be released upon reasonable bail.

In his return to the order to show cause, the judge repeated the reasons for the denial of bail as stated above, and, in addition thereto, attached copies of affidavits which predated the denial and which implicated at least one of petitioners in the murder charged in the indictment. The existence of these affidavits had not previously been disclosed to petitioners or their counsel.

The issue here is whether 'proof is evident or the presumption great,' within the meaning of those words as used in HRS § 709-3.

We have no doubt that the words 'proof' and 'presumption', in the context of HRS § 709-3, relate to the crime with which the person seeking release on bail is charged, not with any crime such person may commit if he is released.

Thus, the circuit court was entirely out of order in considering the newspaper articles, aside from the fact that they were hearsay, for any conclusion based thereon as to possible violence was pure speculation. In this connection, the following statement of Mr. Justice Jackson of the United States Supreme Court, sitting as a circuit justice, in Williamson v. United States, 184 F.2d 280 (2nd Cir. 1950), in a case involving persons who had been convicted for conspiracy to advocate and teach the violent overthrow of the United States government, is apposite:

'If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted.'

Williamson v. United States was a stronger case for denying bail than the case here because it was a post-conviction bail case.

The circuit court was also out of order in basing its decision on the representation of the prosecutor. The duty of deciding whether the proof is evident or the presumption great rests upon the court. To the extent that the court accepted the opinion of the prosecutor that the petitioners' guilt was great, it abdicated its function.

The same may be stated with respect to the indictment. We agree with Taglianetti v. Fontaine, 253 A.2d 609 (R.I.1969), in stating:

'we do not believe that an indictment has any evidentiary value relative to the accused's guilt. We take this position because of the nature of the grand jury proceedings. They are secret and wholly ex parte. Evidence is received solely from the prosecutor. The accused is neither present nor represented by counsel. Often the subject is completely unaware that charges against him are being considered; the prosecuting officer controls the selection of the witnesses who appear and testify before the grand jury and it is largely the prosecutor who advises the jurors. The court is rarely called upon during the jury's deliberation. The prosecutor is usually substantially in control of the proceedings.'

We hold that the burden of proving that proof is evident or the presumption great is upon the State. We do so because the concept of release on bond is a concomitant of the presumption of innocence, and, further, in the light of the general rule which requires a party invoking an exception to prove that his case comes within the exception. Here also, Taglianetti v. Fontaine, supra, may be quoted:

'The presumption of innocence protects an accused from the moment of indictment until adjudication of guilt. It is only logical that the state, when claiming exception to a defendant's constitutional right to bail, should be put to the task of showing that the case is one that fits within the exception.'

This brings up the question...