Carvalho v. Olim

• Decision Date: 06 March 1974
• Docket Number: No. 5442,5442
• Citation: 519 P.2d 892,55 Haw. 336
• Parties: John Edward CARVALHO, Petitioner-Appellee, v. Antone OLIM, Superintendent, Hawaii State Prison, Respondent-Appellant.
• Court: Hawaii Supreme Court

Page 892

519 P.2d 892

55 Haw. 336

John Edward CARVALHO, Petitioner-Appellee, v. Antone OLIM, Superintendent, Hawaii State Prison Respondent-Appellant.

No. 5442.

Supreme Court of Hawai'i.

March 6, 1974.

Syllabus by the Court

1. Where the record is silent, it is constitutionally impermissible to presume that an accused has waived his right to counsel.

2. Where the record is silent, the prosecution has the burden of proving that the accused voluntarily and intelligently waived his right to counsel.

3. Where the record is silent, no justification for a guilty plea can be inferred and the prosecution has the burden of proving the validity of the accused's plea of guilty.

4. A plea of guilty in itself is a conviction and a simultaneous waiver of several important constitutional guarantees-the privilege against self-incrimination, a trial by jury, and the confrontation of one's accusers. Such a waiver is not constitutionally acceptable unless made voluntarily and with full understanding of the consequences.

5. The reading of the indictment without further explanation and without providing the accused with a copy of said indictment does not fulfill the purpose for which the indictment is required, which is to allow the accused to study the charges and fully evaluate his legal position so that he may subsequently enter an intelligent plea.

6. Without being fully apprised of the necessary elements of a crime which must be proven to establish a conviction, an accused cannot enter a plea of guilty voluntarily and with full knowledge of the consequences.

7. Without being apprised of the defenses available, an accused cannot enter a plea of guilty voluntarily and with full understanding of the consequences.

8. The writ of coram nobis is the proper remedy to correct errors of the most fundamental character where the petitioner has completed his sentence or is otherwise not in custody and circumstances compel such action to achieve justice.

9. The writ of coram nobis is applied when there is an error of fact which is not in the record, and when no other remedy exists.

Gerald Y. Y. Chang, Deputy Atty. Gen., Honolulu (George Pai, Atty. Gen., of counsel; Benjamin M. Matsubara, Deputy Atty. Gen., with him on the brief), for respondent-appellant.

David W. Hall, Honolulu (Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, of counsel), for petitioner-appellee.

Before RICHARDSON, C. J., and LEVINSON, KOBAYASHI and OGATA, JJ., and VITOUSEK, Circuit Judge, assigned temporarily by reason of vacancy.

KOBAYASHI, Justice.

This appeal arises out of a petition for writ of habeas corpus by John Edward Carvalho filed in the circuit court of the first circuit, State of Hawaii. The circuit court issued a writ of coram nobis on the ground that the State had failed to prove that petitioner voluntarily and understandingly waived his right to counsel. The petitioner was ordered transferred from the prison to the Honolulu jail to await further proceedings on the original indictment for first degree murder. The State now appeals from the order of the circuit court.

FACTS

John Edward Carvalho (hereinafter referred to as petitioner) was arrested by the Honolulu police for the malicious conversion of an automobile in late June of 1959. The court record of the events that transpired after the petitioner's arrest for malicious conversion through the arraignment at which he pleaded guilty to first degree murder is minimal. The existing record consists of the complaint charging petitioner with first degree murder; a 'Commitment for Trial by Jury', the indictment for first degree murder; a 'Mittimus', indicating the conviction and sentencing of petitioner for first degree murder; a disposition report indicating petitioner's plea of guilty and the sentence of life imprisonment; a letter from petitioner requesting the court to reopen his case on the ground that he was not aware of what he was doing at the time of the arraignment, and also requesting that he be given a psychiatric examination; a letter from the trial judge requesting petitioner be given a psychiatric examination; and a letter and report from the prison officials concerning the psychiatric examination indicating that petitioner was impulsive and 'an inadequate individual whose few defenses are easily overwhelmed by the frustrations of living'. There are no transcript or minutes of the events which transpired at the arraignment proceeding. The court below was required to rely on facts which were reconstructed through the testimony of witnesses for the State who were either involved in the proceeding or were present at the time the events in question took place.

The testimony of the petitioner indicated that, during the time petitioner was being held for malicious conversion, he was subjected to intense interrogation by investigating officers concerning the whereabouts of a missing person. In the course of the interrogation the badly decomposed body of the missing person was discovered and subsequently the petitioner gave a statement indicating that he was responsible for the death of the victim.

The petitioner was indicted for murder in the first degree on July 16, 1959, and brought before the circuit court judge for arraignment and plea. In the proceeding relative to the herein petition for writ of habeas corpus, because of the lack of an official record of the proceedings of the original indictment, evidence was adduced by way of testimony of persons who were present in court on the days of petitioner's arraignment and plea. The following were adduced:

1. Supervising prosecuting attorney, Arthur S. K. Fong, who was present at the arraignment and plea proceedings testified as follows:

Q Could you relate to the Court what occurred at that arraignment.

A Well, I was not the prosecutor at that time handling the arraignment but I was sitting in this very courtroom in the jury box when the arraignment took place before Judge Hewitt. As I recall, Lincoln Ishida was the prosecutor at that who presented the case. I don't remember whether he read the indictment. I believe he read the indictment to the defendant. And as I recall, the best I can recall-and it's been twelve years-the defendant did indicate to Judge Hewitt that he wanted a court-appointed attorney During the recess, I believe defendant's (ex-)wife was in the courtroom at that time. There was some discussion between the defendant and his (ex-)wife. And after the discussion in which I think something to the effect, 'If you did it, why don't you get it over with,' something to that effect--

for him. I think as I recall it then, for some reason there was a recess taken. And, again, it's [55 Haw. 339] vague in my mind, but seems to me during the recess the judge did refer, as was the practice at that time, the defendant to the probation officer which I believe was either Mr. Castro or Mr. Rodenhurst at that time for an investigation.

THE COURT: Say it again.

THE WITNESS: 'If you had anything to do with it, why don't you get it over with at this time.'

A--the (ex-)wife had told him at that particular time. And then he had indicated during the recess that he intended to change his plea to not guilty-from not guilty to guilty at that time.

During that period of time, both Mr. Ishida and myself tried to dissuade the defendant from changing his plea of guilty-to plea of guilty because I indicated to him at that time, 'I don't want you to do this because, first of all, you can have a court-appointed attorney for the reason that you may be guilty of something-maybe rape, maybe murder; I'm not here to judge you-but there are defenses. You may be guilty of murder second, you may be guilty of manslaughter. But I don't think you should plead guilty at this time because the consequence is too severe.'

2. The prosecutors' attempts to dissuade the petitioner from his decision failed, and after the recess ended, petitioner asked the court to be allowed to change his plea to guilty.

3. A. Peter Howell, Esq., who was a spectator at the arraignment and plea proceedings, testified as follows:

Q Could you tell the Court what occurred or what was said between the judge and Mr. Carvalho?

A Yes. The Defendant had wanted to change his plea from not guilty to guilty and the Prosecutor, Mr. Fong, so advised the Court, and before the Court accepted the plea, there was a colloquy between the Court and the Defendant that lasted-oh, I'd say about 10 to 15 minutes.

The Judge asked the Defendant if he wanted to change his plea. The Defendant said yes. And the Judge said, 'Before you do so, do you understand what you're being charged with?' And the Defendant said, 'Yes.'

And the Judge asked him, and I'm summarizing the conversation the best I can recall-'What is it you're being charged with?' And the Defendant said, 'First degree murder.' And the Judge said, 'Do you realize what the penalty is for this offense?' And the Defendant said, 'Yes. It's life imprisonment without parole.'

The Judge asked him, 'Do you wish to have an attorney to advise you or represent you before you enter this plea?' And the defendant said, 'No.'

And Judge Hewitt went on further to say, 'If you want an attorney and you cannot afford to employ one, I will appoint one for you.' And the Defendant said words to this effect, that he understood. Then Judge Hewitt said, 'Do you want me to appoint an attorney for you?' And the Defendant said, 'No.'

Then the Judge asked a few more questions, apparently to satisfy himself that the Defendant really knew what he was doing and that the plea was voluntarily made to the effect that Judge Hewitt paused and was somewhat hesitant to accept the plea. And I, myself, was just sitting there astounded because I had never, in all my experience as a prosecutor or defense council, had ever seen anybody plead guilty to first degree murder, and this is why the case stands And so, I felt that the Judge, by his questions, was certainly...