Peters v. Jamieson

• Decision Date: 10 December 1964
• Docket Number: No. 4470,4470
• Citation: 397 P.2d 575,48 Haw. 247
• Parties: John H. PETERS, as Prosecuting Attorney, City and County of Honolulu, State of Hawaii, v. Ronald B. JAMIESON, as Judge of the Circuit Court of the First Circuit, State of Hawaii, Donald Maui Kealoha, Kenneth K. Lono, Alfred J. Tal and John Requilman, Jr.
• Court: Hawaii Supreme Court

Page 575

397 P.2d 575

48 Haw. 247

John H. PETERS, as Prosecuting Attorney, City and County of Honolulu, State of Hawaii, v. Ronald B. JAMIESON, as Judge of the Circuit Court of the First Circuit, State of Hawaii, Donald Maui Kealoha, Kenneth K. Lono, Alfred J. Tal and John Requilman, Jr.

No. 4470.

Supreme Court of Hawai'i.

Dec. 10, 1964.

Syllabus by the Court.

1. The filing of an affidavit of bias or prejudice under R.L.H.1955, § 213-3, does not ipso facto disqualify a judge.

2. It is essential that the affidavit of bias or prejudice set forth the reasons and facts of the affiant fairly supporting his belief that the judge's bent of mind is such that impartiality of judgment may be prevented or impeded.

3. Bias or prejudice is not predicable upon mere erroneous rulings by the judge.

4. In criminal cases as in civil cases, the remedy of prohibition is not confined to defendants only and is available to the state or prosecution as well.

5. Disqualification for bias or prejudice does not necessarily rest on the filing of an affidavit of bias or prejudice. It may appear from the record itself warranting the issuance of a writ of prohibition.

6. Though erroneous rulings, standing alone, do not form the basis upon which bias or prejudice can be predicated, when associated with other factors appearing on the record which clearly show the judge's bent of mind, the issuance of a writ of prohibition is warranted.

T. Irving Chang and Richard T. Ishida, Deputy Pros. Attys., City and County of Honolulu (John H. Peters, Pros. Atty.), for petitioner.

Judge Ronald B. Jamieson, respondent, pro se.

J. Russell Cades, William L. Fleming and William M. Swope, Honolulu, for respondent Donald Maui Kealoha, for appellant.

Nathaniel Felzer, Honolulu, for respondent Kenneth K. Lono.

J. Garner Anthony, Frank D. Padgett, Thomas M. Waddoups, Honolulu, for respondent Alfred J. Tai.

Donald H. C. Low and Robert K. Richardson, Honolulu, for respondent John Requilman, Jr.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

TSUKIYAMA, Chief Justice.

This is a petition filed by Mr. John H. Peters, Prosecuting Attorney of the City and County of Honolulu, for the issuance by this court of a writ of prohibition prohibiting Judge Ronald B. Jamieson, Judge of the Circuit Court of the First Judicial Circuit, from taking cognizance of the murder case, State of Hawaii v. Kenneth K. Lono, Alfred J. Tai, Donald Maui Kealoha and John Requilman, Jr., Cr. No. 34388, in said Circuit Court. Upon the filing of an amended complaint, a temporary writ of prohibition and an order to show cause issued against said judge.

The petitioner alleges, inter alia, that on October 29, 1964, said circuit judge ordered the prosecution and all defense counsel to appear for a conference, at which the prosecution was ordered by said judge, over objection, to produce and give to all parties involved a list of prospective government witnesses and the statement of defendant Kealoha, without authority and contrary to law; that on or about November 13, 1964, said judge, having read Kealoha's statement which was not yet in evidence, caused a memorandum to be distributed among the defense attorneys expressing concern as to the joinder of defendants and questioning whether separate trials were needed; that on November 17, 1964, the date when trial was to commence, petitioner filed a motion to disqualify said judge upon the ground that the judge, for the reasons and facts set forth in the supporting affidavit, had a personal bias and prejudice against the prosecution, which motion the judge summarily denied; and that under and by virtue of such motion and affidavit, said judge was peremptorily disqualified and no longer had jurisdiction of said Criminal No. 34388.

Respondent Judge Jamieson, in response to the instant petition, filed an answer setting forth certain admissions, denials, and affirmative averments in purported justification of the proceedings which occurred at the 'pre-trial' conferences held on October 29, 1964, November 2 and 17, 1964.

On November 24, 1964, this court heard oral argument. The respondent was present but relying upon his written answer, preferred not to argue except to clarify certain points. Without objection, however, he supplemented his written answer by submitting to the court as evidence the circuit court record in Cr. No. 34388 and the transcripts covering the 'pre-trial' ¹ conferences above mentioned.

At this juncture, it is deemed apropos to set forth and consider some of the pertinent facts involved in the proceedings as revealed by the record and the transcripts.

Three of the defendants, charged with the murder of two police officers, are represented by court-appointed counsel.

On February 20, 1964, defendant Requilman filed a motion for relief from prejudicial joinder which was in effect a motion for severance. This motion was denied by order entered on September 23, 1964.

On February 28, 1964, defendant Kealoha filed a motion to produce and allow said defendant to make 'a photo copy of all statements or reports in the possession of the State which were made by Defendant DONALD MAUI KEALOHA.' The motion was granted by order entered on March 6, 1964.

At the outset of the conference held on October 29, 1964, the prosecution requested a continuance of the date of trial, previously set for November 9, 1964, on the ground of administration and internal problems in the prosecutor's office, coupled with the fact that the mental examination report of one of the defendants was still pending and that it was not certain whether all the defendants had entered their pleas. ² The request was not only unopposed but all counsel informed the court that a reasonable delay would not jeopardize their clients' rights. The court, however, denied the request during the same morning and confirmed it in the afternoon when counsel reported that their respective clients desired an early trial.

It is noted that beofre recessing the morning conference, the court ordered the prosecution to 'bring a list of witnesses, bring all the statements and all of the unsigned written statements and/or transcriptions of stenographic notes of oral statements, * * *.' Then followed the colloquy set forth below. ³

Shortly after the conference resumed in the afternoon, the prosecution suggested that some ground rules should be laid before proceeding under Rule 16 and Rule 17(h) of the Hawaii Rules of Criminal Procedure. In that regard, the court said: 'I think that at a pretrial, anything that is discoverable or inspectable under Rule 16, upon motion is discoverable and inspectable and copyable, and so on, to the same extent at a pretrial, just by order at a pretrial, without any motion being filed. I don't think that Rule 16 puts any limitation on the scope of pretrial proceedings. So, I don't think Rule 16 really affects us.' While the list of witnesses was being distributed, the prosecution questioned the proceeding as set forth below. ⁴

Thereafter, the prosecution again sought 'to know the ground rules if we're not following Rule 16.' To which the court replied: 'I don't think it is possible to anticipate everything that is going to come up in pretrial and it is going to be necessary to make ground rules as we come along. But it does seem that in pretrial anything can be ordered in pretrial without any motion being filed.'

In the wake of the foregoing colloquy, which resulted in the court's directing the furnishing by the prosecution of any statement made by any defendant to the other defendants, the prosecution endeavored to express its views on the scope of Rule 16, H.R.Cr.P., but could not finish because of interruption by other counsel. However, the court summed up its view as follows: 'I think in a way it does include everything because it says, '* * * obtained from or belonging to the defendant or obtained from others by seizure or by process * * *.' And I should think that if they were obtained from others by seizure or by process, anything obtained from anybody, even voluntarily, would be covered because it wouldn't really matter whether it was obtained by seizure or by process or by just going up and saying, 'please let us have it.' I mean I can't see any magic in seizure or process.'

On the day of trial, November 17, 1964, the court held another conference with all counsel involved, with the defendants present. Some days prior thereto, a handwritten memorandum was given by the judge to his clerk to notify the prosecution and all defense counsel to consider the question of physical deletion of parts of Kealoha's statement which referred to Tai, Lono and Requilman and to tell them that he, the judge, was thinking that Kealoha should be tried separately. The handwritten memorandum is attached to both the petition herein and in the respondent judge's answer thereto. Discussion at the conference centered upon the matter of severance. The prosecution argued against severance pointing to the fact that there was no motion before the court and that a motion earlier made for severance had been denied by the court. The court stated that a severance would be ordered on its own motion. The prosecution requested a hearing on the matter and time to prepare, but the court replied: 'I'm giving you a chance and anybody who opposes such a separation a chance to be heard right now.'

Shortly thereafter, the prosecution filed in open court a motion to disqualify, setting forth in the accompanying affidavit the following:

'That the Honorable Ronald B. Jamieson has a personal bias and prejudice against the State of Hawaii, and the facts and reasons for his belief that such bias and prejudice exist are as follows:

'1. That the Honorable Ronald B. Jamieson has previously ordered a list of prospective government witnesses and the statement of Defendant Donald M. Kealoha to be given to counsel for all defendants, without authority and contrary...