Kimball v. Sadaoka, 5631

CourtSupreme Court of Hawai'i
Citation56 Haw. 675,548 P.2d 268
Docket NumberNo. 5631,5631
PartiesEvelyn KIMBALL, also known as Evelyn Hammond Kimball, Petitioner-Appellant, v. Kunito SADAOKA et al., Respondents-Appellees.
Decision Date01 April 1976

Syllabus by the Court

1. Appellant, whose counsel failed to raise issue in his written briefs but who nevertheless was permitted to present the question in his oral argument, was not denied effective assistance of counsel.

2. Reasonable construction of HRS § 727-24 clearly indicates legislative intent that arrest pursuant to the statute may be made on probable cause without a warrant or on complaint of the specified individuals.

3. Under HRS § 1-18, the use of the word 'and' is not necessarily decisive in construction of the statute.

William S. Hunt, Honolulu (Brook Hart, Honolulu, with him on the briefs, Hart, Leavitt & Hall, Honolulu, of counsel), for petitioner-appellant.

John Campbell, Jr., Deputy Atty. Gen., Honolulu (Steven Guttman, Deputy Atty. Gen., Honolulu, on the brief, George Pai, Atty. Gen., Honolulu, of counsel), for respondents-appellees.


MENOR, Justice.

The appellant had been convicted for unlawful possession of harmful drugs in the circuit court of the first circuit. She appealed her conviction to this court, and on November 10, 1972, we affirmed the judgment and sentence of the trial court. State v. Kimball, 54 Haw. 83, 503 P.2d 176 (1972). No petition for a rehearing was ever initiated by the appellant.

On August 1, 1973, she filed in the circuit court a petition for a writ of habeas corpus, alleging that she had been denied her constitutional right to effective counsel in her first appeal to this court. The trial court refused to issue its writ and dismissed the appellant's petition. She has appealed from this order of dismissal.

The appellant's contention that she was deprived of effective assistance of counsel is premised upon the failure of her then counsel to raise in his written briefs the issue of whether 'the complaint of the principal or other person in charge' of the school where she was arrested was an essential prerequisite to a valid arrest. In support of her position, she points to the following passage from the majority opinion in Kimball:

'Justice Abe in his dissenting opinion raises the following issue: A police officer cannot arrest an offender without a warrant of arrest if the officer had not, prior to the arrest, received 'a complaint by the principal or other person in charge.'

'The appellant's appeal, however, was premised strictly on constitutional grounds.

'Supreme Court Rule 3(b)(3) provides that questions not presented in appellant's brief on appeal will be disregarded.' 54 Haw. at 91, 503 P.2d at 181.

While there is a serious question as to whether the appellant's petition for a writ of habeas corpus addressed to the circuit court, and founded upon alleged ineffective assistance of counsel in a prior appeal to this court, was the proper procedural device for her to utilize in this instance, 1 we are nevertheless satisfied that in her first appeal, State v. Kimball, supra, the appellant was not denied effective assistance of counsel. The record in that case shows that her then counsel did raise the question upon her motion to suppress. And despite his failure to present the issue in the briefs on appeal, he was nonetheless permitted to argue the point before this court.

Supreme Court Rule 3(b)(3) provides that questions not presented in the appellant's brief on appeal will be disregarded. It also provides, however, that this court, 'at its option, may notice a plain error not presented.' Counsel's oral argument on the question notwithstanding, and despite their awareness of the position taken by the dissenting justices on this particular issue, it is perfectly obvious that the majority of the court in Kimball did not consider it to be a decisive factor in the case. For whatever reason the passage now relied upon by the appellant may have found its way into the body of the majority opinion, the majority in Kimball nevertheless left no room for further argument on the ultimate issue when they expressly held:

'Notwithstanding the fact that a preempted ordinance is void and incapable of supporting a valid arrest, if the defendant's conduct is also violative of a similar state statute, the arrest may nevertheless be valid. That being the situation here, it is of no effect that the arresting officer had the ordinance in mind rather than the statute when effecting the arrest. 2 The point of importance is that the facts and circumstances within the officer's knowledge afforded probable cause to arrest under either the ordinance or the statute.' 54 Haw. at 87, 503 P.2d at 179. (Emphasis added)

We agree. The statute in question provides in pertinent part as follows:

'Any person intruding, or loitering, or loafing, or idling, without proper authority upon the premises of any school, public or private, including any female boarding school, Kawailoa Girls' Home and school dormitories, may be arrested by any police officer, without any warrant, and on the complaint of the principal or other person in charge of the school, or of any trustee of the same.' HRS § 727-24.

There is nothing in the language of the statute clearly abrogating the specific statutory authority of the police, under HRS Chapter 708, to make an arrest without a warrant when, based upon the officer's own knowledge and personal observation, there is probable cause for the arrest. To hold otherwise could lead to absurd and legislatively unintended results. 3 The use of the word 'and' is not decisive. See HRS § 1-18. Cf. Wee v. Board of Accountancy, 51 Haw. 80, 452 P.2d 94 (1969). In construing the statute, upon the appellant's motion to suppress, the trial court properly held:

'Any person violating (HRS § 727-24) may be arrested by the police either on the policeman's own initiative or upon the complaint of the principal of the school.' (Emphasis added)

This ruling was in conformity with legislative intent. 4 The order dismissing the appellant's petition for a writ of habeas corpus in the court below is affirmed.

RICHARDSON, C. J., and KOBAYASHI and OGATA, JJ., concur.

KIDWELL, Justice (concurring).

The effect of the majority opinion in this case is to consider and resolve the question which Appellant's counsel failed to present in the first appeal. I agree with the majority's interpretation of HRS § 727-24. The only issue remaining is whether, before considering the question, this could should have afforded an opportunity for Appellant's appointed counsel to brief and argue Appellant's contentions, in order to provide Appellant with advocacy of her position equal to that which a nonindigent defendant enjoys. Here the argument for Appellant's interpretation of HRS § 727-24 was placed forcefully before this court by the dissent in Kimball. Under these circumstances, I consider...

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6 cases
  • State v. Vance, s. 6078
    • United States
    • Supreme Court of Hawai'i
    • November 13, 1979
    ...warrant is lawful if the officer has probable cause to believe an offense is being committed in his presence. See also Kimball v. Sadaoka, 56 Haw. 675, 678 n. 3, 548 P.2d 268, 271 n. 3 (1976). The requisite probable cause must be based on the officer's personal knowledge acquired at the tim......
  • Briones v. State, 15833
    • United States
    • Supreme Court of Hawai'i
    • March 31, 1993
    ...L.Ed.2d 841 (1985). The burden to show ineffective assistance of trial or appellate counsel rests with the petitioner. Kimball v. Sadaoka, 56 Haw. 675, 676, 548 P.2d 268, 269 (1976); State v. Antone, 62 Haw. 346, 348, 615 P.2d 101, 104 No Hawaii Supreme Court case has defined the standard b......
  • State v. Caraballo, 6583
    • United States
    • Supreme Court of Hawai'i
    • July 15, 1980 this time is questionable but need not be discussed here. See HRS § 602-4, Hawaii Supreme Court Rule 10. See also Kimball v. Sadaoka, 56 Haw. 675, 548 P.2d 268 (1976). Judge Samuel P. King's order allowed defendant to file an ex parte motion for issuance of the writ unless defendant's ap......
  • Bloudell v. Wailuku Sugar Co., 8474
    • United States
    • Court of Appeals of Hawai'i
    • September 1, 1983
    ...ordinarily be considered unless properly raised under Rule 3(b). Kang v. Harrington, 59 Haw. 652, 587 P.2d 285 (1978); Kimball v. Sadaoka, 56 Haw. 675, 548 P.2d 268 (1976); Mahoney v. Mitchell, 4 Haw.App. 410, 668 P.2d 35 (1983); John Wilson Enterprises, Ltd. v. Carrier Terminal Service, 2 ......
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