State v. Grahovac, s. 5019

• Decision Date: 01 February 1971
• Docket Number: Nos. 5019,5025,s. 5019
• Citation: 480 P.2d 148,52 Haw. 527
• Parties: , 52 Haw. 556 STATE of Hawaii v. Craig Mark GRAHOVAC. In the Matter of James LAVIN.
• Court: Hawaii Supreme Court

Page 148

480 P.2d 148

52 Haw. 527, 52 Haw. 556

STATE of Hawaii v. Craig Mark GRAHOVAC In the Matter of James LAVIN.

Nos. 5019, 5025.

Supreme Court of Hawai'i.

Feb. 1, 1971.

Rehearing Denied Feb. 18, 1971.

Syllabus by the Court

1. As each of the twelve provisions of HRS § 772-1 independently defines an offense and calls for the completion of a criminal act, the substantive prohibitions are statutorily severable, and the unconstitutionality of two provisions does not affect the remainder of the statute.

2. A criminally accused has 'standing' to challenge constitutionally only the specific penal sanctions with which he is charged.

3. Legislative enactment cannot abrogate a person's right to silence by empowering police and judiciary to compel communication or by imposing criminal liability for failing to speak.

4. HRS § 772-1, Land of Another Provision, making criminal one's presence on another's property 'without lawful excuse (the proof of which excuse shall be upon such person)' destroys this person's right to silence.

5. The definition within a statute of a word used authoritatively expresses legislative intention that this word have no other construction, and this meaning is binding on this court.

6. A penal statute must clarly define proscribed behavior, for failing this, definitional uncertainty denies an accused 'due process of law' rendering the statute unconstitutional.

7. A law of vague meaning falls short of 'due process' demands when it neither gives fair notice to a person what conduct is prohibited nor prescribes fixed standards for adjudging guilt when that person stands accused.

8. HRS § 772-1 Wandering Provision's sanction against one who 'wanders about the streets at late or unusual hours of the night, without any visible or lawful business' is too limitless and hence unconstitutional.

9. Prisoner's valid second sentence imposed consecutively began to run as of date when he commenced serving prior invalid sentence, thus giving him full credit on valid sentence for all time served under invalid commitment.

John S. Edmunds, Chief Deputy Public Defender, and Andrea Levin, Deputy Public Defender, Honolulu (Brook Hart, Public Defender, Honolulu, with them on the briefs), for defendant-appellant and petitioner.

Leland H. Spencer, Deputy Pros. Atty., Honolulu (Barry Chung, Pros. Atty., Honolulu, with him on the brief), for plaintiff-appellee.

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

KOBAYASHI, Justice.

Before this court are two cases, consolidated for argument, each challenging the constitutionality of this State's vagrancy statute, HRS § 772-1. ¹

I. FACTS

In the first action, Craig Mark Grahovac is appealing an order of the Ewa District Magistrate on May 13, 1970, denying his motion to dismiss two charges of vagrancy under HRS § 772-1 on the ground that the statute is unconstitutional. ²

After his motion's denial and plea of not guilty, Grahovac was convicted of violating the following provisions of HRS § 772-1, defining 'vagrant' as:

(Land of Another Provision)

'(E)very person who is found without lawful excuse (the proof of which excuse shall be upon such person) in or upon the dwellinghouse, building, yard, or the land of another about or near any building used for dwelling purposes, or on board any vessel; * * *' (hereinafter Land of Another Provision) and

(Wandering Provision)

'(E)very person who wanders about the streets at late or unusual hours of the night, without any visible or lawful business; * * *' (hereinafter Wandering Provision).

The second action is an original proceeding brought to this court by James Lavin who was arraigned on HRS § 772-1, Wandering Provision, supra, as a co-defendant along with Grahovac. Choosing to represent himself, Lavin plead not guilty. He was subsequently convicted as charged.

After the granting of his Motion for Appointment of Counsel, Lavin further petitioned this court on September 11, 1970, seeking issuance of an Order to Show Cause against his jailer, requesting release because of conviction under an unconstitutional statute. Following a hearing on September 24, 1970, we ordered his action consolidated for argument with appellant Grahovac's case. More of the essential facts follow.

On April 15, 1970, while walking through an Ewa Beach residential district about 1:00 a. m., Grahovac and Lavin were stopped by a patrolling policeman after seeing one of them drop 'a piece of cloth' and recognizing Grahovac from previous 'criminal activity' in the Aiea area. The officer then asked and was told where they had been and their destination. Their place of origin as reported was known to him as a spot 'where youths congregate and sniff paint.'

At trial, the officer testified that Lavin was incoherent, but that Grahovac was in good condition, although disheveled in appearance. He further stated that the place where he encountered the two defendants was two to three blocks out of line with the route they claimed to be taking, and that following this questioning he had arrested defendants for vagrancy. (Wandering Provision, supra pp. 2-3.) ³

While awaiting trial on the above charge, on May 5, 1970, Grahovac was seen with a companion running from the doorway of a garment factory by two policemen responding to a burglar alarm in the factory. The two officers pursued and tackled both individuals in an adjoining parking lot.

The police then asked Grahovac what he was doing in the area and were told both had just urinated against the factory door. Upon inspection, a third of officer found only scuff marks around the door knob but was unable to tell if these marks were fresh. Grahovac was then arrested for vagrancy. (Land of Another Provision, supra p. 2.) ⁴

For his two vagrancy convictions, Grahovac was sentenced to respective prison terms of six and nine months to run consecutively. Lavin was sentenced to nine months' incarceration for his single vagrancy violation.

Today we hold unconstitutional both the Land of Another and The Wandering Provisions of HRS § 772-1.

II. SEVERABILITY OF HRS § 772-1'S PROVISIONS

Each of the twelve provisions of HRS § 772-1 independently defines an offense and calls for the completion of a criminal act. The substantive prohibitions including the Land of Another and the Wandering Provisions are therefore statutorily severable. Territory of Hawaii v. Hoy Chong, 21 Haw. 39, 42 (1912).

Appellant and petitioner argue, however, that one oral charge below ⁵ 'demonstrates that the status of poverty is in fact the lowest common denominator' of HRS § 772-1, and that consequently the entire statute should be held unconstitutional. ⁶

While poverty by itself cannot be made an element of crime, ⁷ it is also true that a criminally accused has 'standing' to constitutionally challenge only the specific penal sanctions with which he is charged. State v. Willburn, 49 Haw. 651, 654, 426 P.2d 626, 629 (1967).

The fact that an oral charge contains language which is surplusage to the crime as statutorily defined could render non-criminal the act charged but cannot serve to enlarge an accused's 'standing' at trial.

III. CONSTITUTIONALITY OF THE LAND OF ANOTHER PROVISION

The Federal Constitution's 5th Amendment guarantee that '(n)o person * * * shall be compelled in any Criminal Case to be witness against himself * * *' has been held binding on this State. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, right in identical language. in Art. I, § 8 likewise assures this rght in identical language.

As stated in part in Kaneshiro v. Belisario, 51 Haw. 649, 466 P.2d 452 (1970), at pages 652-653, where we quoted from Tehan v. United States as rel. Shott, 382 U.S. 406, 415-416, 86 S.Ct. 459, 464-465, 15 L.Ed.2d 453 (1966).

'(T)he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution 'shoulder the entire load.' * * * (T)he federal privilege against self-incrimination reflects the Constitution's concern for the essential values represented by 'our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,'' * * *.' (Footnote omitted)

Thus, the prosecution must be its own efforts secure evidence against one criminally suspect rather than resort to the '* * * simple expedient of compelling it from his own mouth.' Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). Nor may it use as evidence the fact one remained silent or asserted this right in the face of accusation. Id. at 468, n. 37, 86 S.Ct. 1602.

In effecting this policy, our safeguards for this right must at least comport with United States Supreme Court standards. Malloy v. Hogan, supra, at 11, 84 S.Ct. 1489. But we are nonetheless free to go beyond these requisites in protecting one's right of silence under the State Constitution. Miranda, supra at 490, 86 S.Ct. 1602; accord, State v. Texeira, 50 Haw. 138, 142, 433 P.2d 593, 597 (1967).

It is clear that the right's protection is available outside the courtroom, for although investigating police may request that a citizen voluntarily answer questions, they may not compel responses. ⁸ Any practice overriding a person's choice to talk to the police violates his right to silence.

Manifestly, then, a state by legislative enactment cannot abrogate this right by empowering police and judiciary to compel communication. Nor may a statute impose criminal liability for failing to speak. Leary v. United States, 395 U.S. 6, 28, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). ⁹

Granted, it is a function of the criminal law to protect private rights. But HRS § 772-1, Land of Another Provision, making criminal one's presence on another's property 'without lawful excuse (the proof of...