Chung v. Ogata

• Citation: 493 P.2d 1342,53 Haw. 364
• Decision Date: 25 February 1972
• Docket Number: No. 5260,5260
• Parties: Barry CHUNG, Prosecuting Attorney, City and County of Honolulu, State of Hawaii, Petitioner, v. Thomas S. OGATA, Judge, Circuit Court, First Circuit, State of Hawaii, and GuyContemplo, Respondents.
• Court: Supreme Court of Hawai'i

Page 1342

493 P.2d 1342

53 Haw. 364

Barry CHUNG, Prosecuting Attorney, City and County of Honolulu, State of Hawaii, Petitioner, v. Thomas S. OGATA, Judge, Circuit Court, First Circuit, State of Hawaii, and GuyContemplo, Respondents.

No. 5260.

Supreme Court of Hawai'i.

Feb. 25, 1972.

Rehearing Denied March 20, 1972. See 495 P.2d 26.

Douglas L. Halsted, Deputy Pros. Atty., City and County of Honolulu Honolulu, for petitioner.

James T. Leavitt, Jr., Honolulu (Leavitt & Hall, Honolulu, of counsel), for respondent Guy Contemplo.

Robert P. Jaress, Deputy Atty. Gen. of Hawaii, Honolulu, for respondent Judge Ogata.

PETITION FOR WRIT OF PROHIBITION

1. Purpose of a preliminary examination is to prevent a person from being held in custody without a prompt determination of probable cause.

2. Discovery is not one of the purposes of a preliminary hearing, although when such hearing is held there is some discovery of the government's evidence.

3. To permit indictment before the holding and completion of a preliminary hearing is not inconsistent with H.R.Cr.P. Rules 5(d)(1) and 5(d)(2), and Rule 25(a) of the District Court Rules of Penal Procedure.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

MARUMOTO, Justice.

This matter is before us on a petition of the prosecuting attorney of the city and county of Honolulu for a writ of prohibition directed to Judge Thomas Ogata and Guy Contemplo prohibiting them from taking any action to enforce an order entered by Judge Ogata on January 17, 1972, at the instance of Contemplo.

Judge Ogata is a judge of the first circuit court. Contemplo has a preliminary examination pending in the Honolulu district court upon a charge of possession of narcotic drugs. ¹

The order entered by Judge Ogata prohibits the prosecuting attorney from seeking Contemplo's indictment for any charges based upon a search of the premises where Contemplo was living on December 9, 1971, until Contemplo is afforded a preliminary examination.

The facts presented to this court with the petition are fragmentary. But they may be pieced together as follows: On December 9, 1971, the police searched the premises where Contemplo was living, and found some narcotic drugs; Contemplo and three others were arrested, charged in the district court with the possession of the narcotics, and released on bail; the district court set the preliminary examining of the four persons for the morning of January 6, 1972; on the morning of January 6, 1972, the three persons other than Contemplo were ready for the preliminary examination and the district judge found that existence of probable cause as to them, but Contemplo did not have an attorney and the judge continued the examination in his case to February 2, 1972; Contemplo retained the attorney, who is presently representing him, in the afternoon of January 6, 1972; after he was retained, the attorney never sought a resetting of Contemplo's preliminary examination to an earlier date; however, about a week after he was retained, the attorney became apprehensive that the prosecuting attorney might present Contemplo's case to the grand jury for indictment on January 20, 1972; consequently, on January 14, 1972, he filed in the first circuit court a document entitled 'MOTION FOR AN ORDER PROHIBITING INDICTMENT', and succeeded in having Judge Ogata enter the order in question; in entering the order, Judge Ogata treated the document filed by Contemplo's attorney as a complaint in the nature of a bill for injunction.

The petition here and the proceedings in the circuit court raise some procedural problems. But we will cut through these problems and get at the central issue in the case.

The issue is whether, in the situation recited above, Contemplo is entitled to have his right to a preliminary examination preserved inviolate and not to have it rendered nugatory by a return of indictment before the holding and completion of the examination.

The right to a preliminary examination is not a constitutional right. This proposition is not contested.

This court held in State v. Tominaga, 45 Haw. 604, 372 P.2d 356 (1962), and reiterated in Engstrom v. Naauao, 51 Haw. 318, 459 P.2d 376 (1969), that the real purpose of a preliminary examination is to prevent a person from being held in cutody without a prompt determination of probable cause, and no purpose remains for conducting such examination if the grand jury returns an indictment.

In Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387 (1970) the United States Supreme Court stated with respect to a similar holding of an Alabama court: 'This court is of course bound by tis construction of the governing Alabama law'.

A person who has been indicted by the grand jury without being first charged in the district court is not entitled to a preliminary examination. Crump v. Anderson, 122 U.S.App.D.C. 173, 352 F.2d 649 (1965); United States v. Lexenberg, 374 F.2d 241 (6th Cir. 1967).

It is urged upon us that the holding of this court should be reconsidered for two reasons: first, a preliminary examination serves a purpose additional examination determination of probable cause, namely, that of discovery; and, second, to permit the right to a preliminary examination to be rendered nugatory by a return of indictment is inconsistent with H.R.Cr.P. Rules 5(d)(1) and 5(d)(2), and Rule 25(a) of the District Court Rules of Penal Procedure.

With respect to the first reason, the notion that discovery is an additional purpose of a preliminary examination appears to have originated in the following dictum of Judge McGowan in Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894, 901 (1964):

'It has generally been thought that the purpose of a preliminary hearing is to afford the accused (1) an opportunity to establish that there is no probable cause for his continued detention and thereby to regain his liberty and, possibly, escape prosecution, and (2) a chance to learn in advance of trial the foundations of the charge and th evidence that will comprise the government's case against him.'

However, in Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557, 563 (1967), Judge McGowan filed a joint statement with Judge Leventhal, which contains the following paragraph:

'The focus of the solicitude embodied in the procedural device of the preliminary hearing is the liberty of the accused. Should it be taken away from him because there is probable cause to believe that he has committed a crime for which the grand jury will indict? To the extent that the prosecution is put to its proof of such probable cause, the accused in effect gets discovery of that much of the Government's case as is comprised of the evidence it adduces to establish probable cause. But that is an inevitable consequence of the hearing, and not its primary purpose. It may well be that there is language in the Blue opinion which obscures this true relationship of discovery to probable cause. But, however cloudy or misconceived that language may be, the relationship, as it is given to us to understand it, is as described above.' (Emphasis supplied) ²

Sciortino v. Zampano, 385 F.2d 132 (2d Cir. 1967), cert. den. 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968), represents the prevailing view on the question under discussion.

In that case, the petitioner sought the issuance by the court of appeals of an order in the nature of a writ of mandamus directing the district court to order the United States commissioner to conduct a preliminary examination. The following events preceded the filing of the petition: Petitioner's counsel asked the government to agree to a continuance of preliminary examination until July 11, 1967, because his associate, who would be...