State v. Bell, s. 6315
| Decision Date | 26 December 1978 |
| Docket Number | 6540 and 6910,Nos. 6315,s. 6315 |
| Citation | 60 Haw. 241,589 P.2d 517 |
| Parties | STATE of Hawaii, Plaintiff-Appellant, v. Otis Pete BELL, Defendant-Appellee. STATE of Hawaii, Plaintiff-Appellant, v. David Ernest HISAW, Defendant-Appellee. STATE of Hawaii, Plaintiff-Appellant, v. Mitchell G. CHANG, also known as Sonny, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. The grand jury's responsibilities include both the determination of whether there is probable cause to believe that a crime has been committed and the protection of citizens against unfounded criminal prosecutions.
2. The prosecution is not required to present exculpatory evidence to the grand jury unless that evidence is Clearly exculpatory.
3. The prosecution is not required to instruct the grand jury as to the nature and significance of evidence relating to self-defense unless the evidence Clearly establishes that the accused acted in self-defense.
Arthur E. Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.
David C. Schutter, Honolulu (Schutter, O'Brien & Weinberg, Honolulu, of counsel), for defendants-appellees.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
These three consolidated appeals present the same underlying question: whether the prosecution is required to present to the grand jury evidence which tends to negate the guilt of the accused.
In the three cases before us, indictments were returned by the Oahu Grand Jury against each of the defendants. The defendants thereafter moved for dismissal of the indictments on the ground that evidence tending to negate their guilt was not presented by the prosecution to the grand jury. In Cases No. 6315 and 6540, Circuit Judge Doi dismissed the indictments without prejudice, while in Case No. 6910, Circuit Judge Lanham dismissed the indictment with prejudice. The State has appealed.
We reverse the dismissals of these three indictments. In our opinion, the prosecution is required only to present to the grand jury evidence which is clearly exculpatory in nature. Our holding will be explained and developed more fully as each of the three cases is described and analyzed individually.
In No. 6315, defendant Otis Pete Bell was indicted by the grand jury on charges of murder and carrying a firearm without a permit or license.
At the grand jury hearing, Michael O'Connell identified Bell as the person who shot and killed the victim, Calvin Silva. O'Connell stated, however, that he did not actually see Bell holding the gun because the victim was seated between Bell and O'Connell. O'Connell testified that he saw Bell approach the victim from behind, at which time O'Connell heard gunshots and saw the victim immediately fall to the floor.
Honolulu Police Officer Michael Sensano testified at the grand jury hearing that while responding to a police radio report of the shooting, he spotted Bell walking in the vicinity of the murder scene. Sensano ordered Bell, who was holding an object in his hand, to stop, but Bell put the object into his pocket and fled. Bell was apprehended shortly thereafter by another police officer. The object recovered from Bell's pocket was found to be a pistol.
At a preliminary hearing held prior to the grand jury hearing, Michael Nash testified as a witness for the defense. Nash, who was present at the murder scene, testified that Bell was not the person who had shot Calvin Silva. Nash acknowledged at that hearing, however, that he had been under the influence of intoxicants at the time of the shooting and had been unable to give the police a specific and accurate account of the incident. The district court found Nash's testimony to be unreliable for purposes of the preliminary hearing, and it committed Bell to the circuit court to answer the charges.
Bell contends that the prosecution has a duty to present all material and relevant exculpatory evidence of which it is aware to the grand jury. He argues that the prosecution's purposeful failure to present Michael Nash as a witness at the grand jury hearing constitutes a fatal flaw in the indictment process, thus necessitating the dismissal of the indictment returned against him. The circuit court agreed with his contention and dismissed the indictment.
Initially, we note that the grand jury's responsibilities include both the determination of whether there is probable cause to believe that a crime has been committed and the protection of citizens against unfounded criminal prosecutions. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). We do not believe, however, that the fulfillment of these responsibilities requires that the grand jury have before it any and all evidence which might tend to exculpate the defendant.
As stated in United States v. Calandra, supra, at 343-44, 94 S.Ct. at 618:
A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an Ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.
To require the prosecutor to present any and all information which may have a tendency to exculpate the accused would, in our view, confer upon grand jury proceedings the adversary nature which is more properly reserved for the actual trial phase of prosecution. See United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), Cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978).
Similar concerns have been expressed in M. Frankel and G. Naftalis, The Grand Jury 71 (1977):
The rationale for not insisting on "defense" evidence is again related to preventing adversary proceedings in the grand jury room. In addition, determining what is or is not or may be exculpatory is often difficult. Evidence that does not appear to be terribly meaningful to a prosecutor preparing to present a case to the grand jury may take on altogether different significance when viewed from the standpoint of the defense counsel at trial. It might place an unmanageable burden on the prosecutor at this stage to require him to discern and disclose possible matters of exculpation.
The same authority has cited additional difficulties which may arise when an adversarial character is bestowed upon grand jury proceedings:
The preliminary rehearsal of a trial in the grand jury room, but with counsel for only one side, entails dangers, or at least dubieties. Prospective defense witnesses may have their stories warped or colored unfairly in the grand jury room. It may be doubted that the average defense counsel would desire such an Ex parte "rehearsal" of people he plans to call. Moreover, it is difficult enough as things stand to control the popular notion that a person indicted "must be guilty of something." The task is made more manageable by being able to remind trial jurors that the grand jury heard only the prosecutor's side. One may question the effects of a general understanding, however much a distortion, that the grand jury actually heard both sides.
We therefore do not think that to require all exculpatory evidence to be presented to the grand jury is, on balance, a requirement that will be of great benefit.
The difficulties cited above, however, do not arise where evidence of a Clearly exculpatory nature is involved. We would require, therefore, that where evidence of a clearly exculpatory nature is known to the prosecution, such evidence must be presented to the grand jury. See United States v. Mandel, 415 F.Supp. 1033, 1042 (D.Md.1976). Clearly exculpatory evidence may be manifested, for example, by a witness whose testimony is not directly contradicted by any other witness and who maintains that the accused was nowhere near the scene of the crime when it occurred. Also, where it has become apparent to the prosecution, for example, that a sole eyewitness testifying as to the perpetration of the crime has perjured himself before the grand jury, that perjury must be revealed to the grand jury. The failure of the prosecutor to present such clearly exculpatory evidence to the grand jury would justify dismissal of the indictment. See id.
The federal courts have recognized that the prosecution is necessarily given wide discretion in presenting its case to the grand jury and that the prosecution is thus not required to present all exculpatory evidence to the grand jury. United States v. Y. Hata & Co., 535 F.2d 508, 512 (9th Cir.), Cert. denied, 429 U.S. 828, 97 S.Ct. 87, 50 L.Ed.2d 92 (1976); See United States v. Narciso, 446 F.Supp. 252, 296 (E.D.Mich.1977); United States v. Mandel, supra, at 1040-42. Under the rule which defendant Bell espouses, the defense in every instance would be able to argue that certain evidence is exculpatory in nature and should be presented to the grand jury. Such a procedure would unnecessarily impinge on the prosecution's broad discretion and would inject confusion and delay into the grand jury indictment process.
Moreover, in our view, a defendant's right to due process would not be impinged where the prosecution is not required to present all exculpatory evidence to the grand jury. As stated, the grand jury phase is devoted only to a preliminary determination of whether criminal proceedings should be instituted against any person. The full trial phase with its attendant evidentiary and procedural restrictions still remains the actual adjudicatory stage of the guilt or innocence of the accused. As the court of appeals in Hata, supra, made clear (T)he greatest safeguard to the liberty of the accused is the petit jury and the rules governing its determination of a defendant's guilt or innocence.
535 F.2d at 512. The ex parte nature of the grand jury is based upon "an abiding confidence in the jury trial system", Id., and we thus perceive no due process infirmity in continuing to afford the...
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