In re John Palakiko & James Edward Majors for a Writ Corpus

• Decision Date: 20 December 1951
• Docket Number: No. 2877.,2877.
• Citation: 39 Haw. 167
• Parties: IN THE MATTER OF THE APPLICATION OF JOHN PALAKIKO AND JAMES EDWARD MAJORS FOR A WRIT OF HABEAS CORPUS.
• Court: Hawaii Supreme Court

39 Haw. 167

IN THE MATTER OF THE APPLICATION OF JOHN PALAKIKO AND JAMES EDWARD MAJORS FOR A WRIT OF HABEAS CORPUS.

No. 2877.

Supreme Court of the Territory of Hawai‘i.

Heard November 13–16, incl., 19–21, incl., 23, 26–30, incl., December 3–7, incl., 10–12, incl.

Decided December 20, 1951.

PETITION FOR WRIT OF HABEAS CORPUS.

Syllabus by the Court

It is beyond the nature and scope of the remedy afforded by a writ of habeas corpus to relitigate and redetermine issues, already litigated to final appellate determination, and no need for that remedy exists where appellate remedy has been so exhausted.

Generally, habeas corpus cannot be used as a writ of error, and no good reason exists for attempting so to use it in this jurisdiction, since the statutes contain ample provisions for bringing the proceedings of the circuit court before the supreme court for review. Nor does the function of a writ of habeas corpus supersede the functions of writs of error or appeal.

A writ of habeas corpus cannot be used for the purposes of a writ of error or other mode of appellate review and does not lie to correct mere errors in the proceedings below, provided only that the court whose judgment or sentence is challenged has jurisdiction of the crime and of the person of the defendant. Specifically, a defendant cannot litigate issues at trial and exhaust his appellate remedy on writ of error in an attempt to correct alleged errors concerning the determination of those issues below and then collaterally attack on habeas corpus that determination as the basis of conviction by raising the same issues. To do so would be admissive of the lower court's authority to determine such issues within its jurisdiction of the crime and of the person of the defendant.

Harriet Bouslog ( Bouslog & Symonds on the briefs) for petitioner.

M. Watanabe, Assistant Attorney General (also on the briefs), for respondent.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY LE BARON, J.

This is a petition for a writ of habeas corpus in a capital case. It is brought on behalf of John Palakiko and James Edward Majors, convicted of murder in the first degree. The petitioner is the sister of Palakiko and she filed the petition on her own affidavit under the circumstances and on the grounds described in Application of Palakiko and Majors, 39 Haw. 134. Those grounds constitute a collateral attack upon the conviction of Palakiko and Majors in the first circuit court of the Territory and are, briefly, that such conviction is void because it was secured by coerced confessions in deprivation of constitutional rights and because based upon an unconstitutional statute. Late at night before the day set for execution pursuant to death warrants, the petition was presented to a justice of this court. After continuous argument of counsel and amici curiae until early morning, that justice denied the petition for insufficiency upon its face but stayed execution and has referred petition to this court as a whole. (See Application of Palakiko and Majors, supra.) Although of the opinion that the petition was properly so denied and its insufficiency not cured by additional affidavits, this court, due to the gravity of the situation, preferred that Palakiko and Majors themselves be heard to state whatever case they might have rather than conclude the matter on the supplication of another. Accordingly, this court exercised its discretion and issued the writ. The return made it appear that Palakiko and Majors were sentenced by a court having jurisdiction of the crime charged and of their persons and that they are restrained by virtue of such sentence and the death warrants issued by the governor of the Territory as provided by law. To that return Palakiko and Majors made traverse, which renewed the collateral attack of the petition and brought into issue the coercive character of the confessions and the unconstitutionality of statute within the over–all constitutional question of due process of law. Assuming at the time, but not deciding, that the traverse warranted further habeas corpus proceedings other than discharge of the writ, this court, in order to be fully advised of the true nature of the case of Palakiko and Majors, held a hearing and permitted them through their attorney the greatest possible latitude in which to sustain the burden of establishing that the conviction is void as alleged in their traverse. They failed, however, to sustain that burden after the lengthiest hearing in the history of this court and after exhaustive argument on the law.

The traverse to the return, aside from raising the issue of the statute's unconstitutionality and aside from matters presented by two amendments at the close of petitioner's case on hearing, raises two main issues which are determinative of and into which are merged all issues touching upon alleged violations of constitutional rights. The first main issue so raised is whether the confessions, when made, were voluntary as a matter of fact, and the second whether they were as a matter of law. Those issues, however, were issues at the trial. There they have been litigated by the parties and determined in the affirmative by the trial court and by the jury under proper instructions of law. Moreover, all the evidence pertinent to such issues, out of the great mass of evidence as presently adduced at the instant hearing, was available at the time of trial and is largely cumulative of the evidence on which the issues were determined at the trial. In addition, the supreme court of Hawaii on writ of error reviewed the evidence of trial on assignment alleging error to the admission into evidence of the confessions on the ground that they were not voluntarily made, and sustained the conviction. The United States Court of Appeals for the Ninth Circuit on appeal reviewed that evidence on the sole issue of due process of law, relative to the securing and use of the confessions, and affirmed the judgment of the supreme court. (See Territory v. Palakiko et al, 38 Haw. 490; Palakiko v. Territory of Hawaii, 188 F. [[[2d] 54.) The determination itself of those issues on trial was thus not only reviewable but actually twice reviewed to final appellate decision. At every stage of the trial and appellate proceedings Palakiko and Majors had the assistance of three able and competent attorneys, as will be more fully developed in the course of this opinion.

It is the settled general rule in this jurisdiction that a writ of habeas corpus cannot be used for the purposes of a writ of error or other mode of appellate review and that it does not lie to correct mere errors in the proceedings below, provided only that the court whose judgment or sentence is challenged has jurisdiction of the subject matter and of the person of the defendant. (In re Abreu, 27 Haw. 237; In re Gamaya, 25 Haw. 414; In re Y. Anin, 17 Haw. 338; Ex Parte Smith, 14 Haw. 245; Ex Parte Fugihara Oriemon, 13 Haw. 102; In re Titcomb, 9 Haw. 131; In re Apuna, 6 Haw. 732.) Consistent therewith is the federal rule as enunciated by the Supreme Court of the United States that a writ of habeas corpus cannot be substituted for an appeal even in a case in which a defendant took no appeal. (Sunal v. Large, 332 U. S. 174; Adams v. United States ex rel McCann, 317 U. S. 269.) Thus it has been uniformly held by circuit courts of appeals that convictions based on coerced confessions cannot for that reason alone be collaterally attacked by habeas corpus. ( Smith v. United States, 187 F. {(2d} 192; Eury v. Huff, 146 F. [2d] 17; Miller v. Hiatt, 141 F. [[2d] 690;Young v. Sanford, 147 F. {2d} 1007;Burall v. Johnson, 134 F. [2d] 614; Cash v. Huff, 142 F. [2d] 60;semble, Vermillion v. Zerbst, 97 F. [2d] 347.) Other reasons in the form of exceptional circumstances, however, may permit habeas corpus to serve for an appeal. Such circumstances are ones “where the need for the remedy afforded by the writ of habeas corpus is apparent.” (Bowen v. Johnston, 306 U. S. 19, 27.) Pertinent examples thereof are to be found in cases where matters outside the record have destroyed the essence of a fair trial or thwarted effective appeal; i.e. cases such as those of mob domination in Moore v. Dempsey, 261 U. S. 86, and Frank v. Mangum, 237 U. S. 309; of perjured testimony in Mooney v. Holohan, 294 U. S. 103, where the petitioner did not know of the alleged perjury until after appeal; and of coerced pleas of guilty in Smith v. O'Grady, 312 U. S. 329, and Waley v. Johnston, 316 U. S. 101, where facts de hors the record were not open to consideration or review on appeal. But no need for the remedy afforded by the writ of habeas corpus exists where a defendant was represented by counsel and has litigated issues of coerced confessions to final determination in exhaustion of appellate remedy and where the defendant, with different counsel, seeks to relitigate and have redetermined on habeas corpus the same issues. Nor has any territorial, state or federal court permitted habeas corpus to relitigate and redetermine issues already litigated to final appellate determination. To do so would cause litigation in criminal cases to be interminable and bring confusion into the administration of justice. A defendant may not litigate issues at trial and on direct attack exhaust his appellate remedies, as Palakiko and Majors did in this case, and then supersede those remedies on collateral attack, by habeas corpus, concerning the same issues which are admissive of the jurisdiction of the trial court to determine them.

A comparable situation is depicted in Kaizo v. Henry, 211 U. S. 146. That case is the closest in point and therefore the controlling authority. There a defendant was indicted for murder in the first degree in a circuit court of the Territory of Hawaii. After indictment a plea in abatement was seasonably filed. After issue on the plea was joined, the parties agreed upon the facts. The plea with the...