State v. Joao, 5189
| Decision Date | 13 December 1971 |
| Docket Number | No. 5189,5189 |
| Citation | 491 P.2d 1089,53 Haw. 226 |
| Parties | STATE of Hawaii, Plaintiff-Appellant, v. Walter Louis JOAO and Benjamin Kaaa Dawson, Jr., Defendants-Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Although the requirement of a grand jury indictment as a prerequisite to criminal prosecution has been limited by statute and court rule, due process requires that where the indictment mechanism is employed, it must be through an unprejudiced grand jury.
2. A tendency to prejudice may be presumed when, in presenting a case to the grand jury, the prosecutor engages in conduct that invades the province of the grand jury or tends to induce action other than that which the jurors in their uninfluenced judgment would deem warranted on the evidence fairly presented before them.
3. A tendency to prejudice is established by a finding that the grand jury might not have returned an indictment had the prosecutor not made the statement that the individual originally charged with the same offense had now decided to make a clean breast; it is unnecessary to prove that the grand jury was in fact influenced by the statement.
4. Where a defendant's substantial constitutional right to a fair and impartial grand jury proceeding is prejudiced, a quashing of the indictment emanating therefrom is an appropriate remedy.
Michael A. Weight, Deputy Pros. Atty., Honolulu, , for plaintiff-appellant.
Charles Lotsof, Honolulu (Hyman M. Greenstein, Honolulu, of counsel), for defendant-appellee Joao.
David C. Schutter, Honolulu, for defendant-appellee Dawson.
Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
In January, 1971, the grand jury returned an indictment against defendants-appellees Joao and Dawson for first degree murder. For reasons not material here, the Honorable John C. Lanham, judge of the First Circuit Court, subsequently granted a motion for production of a transcript of the testimony of Cole Kekahuna, the State's sole witness before the grand jury and the original person indicted for the same murder. The transcript revealed that in introducing Kekahuna to the grand jury, the deputy prosecutor made the following statement:
'As Mr. Chung (Prosecuting Attorney for the City and County of Honolulu) has said, the witness that we will present to you this afternoon is Cole U. Kekahuna. Very briefly, Cole Kekahuna was the original defendant charged with the murder . . .. Cole Kekahuna has been in jail for 3 1/2 months, and as Mr. Chung says, he has decided to make a clean breast. On his testimony, we seek an indictment . . ..
There is no transcript of the prosecutor's remarks concerning Kekahuna. When Kekahuna testified, he understated his own prior criminal record and the deputy prosecutor failed to correct the error.
The appellees filed a motion in the circuit court to quash and dismiss the indictment against them. They alleged that the conduct of the prosecutor and deputy prosecutor before the grand jury involved 'substantial improprieties,' namely, that their introduction of and reference to Kekahuna had in substance amounted to a warranty of his credibility. They further argued at the hearing on the motion that since the prosecutor's remarks concerning Kekahuna were not recorded it was impossible to determine with certainty what they were, and that the deputy prosecutor had permitted Kekahuna to misrepresent his own prior criminal record. The State denied that the conduct of the prosecution was improper and denied that it was prejudicial to the rights of the appellees.
On June 18, 1971, following a hearing on the motion to quash, Judge Lanham found that although He thereupon issued an order quashing the indictment against the appellees, 'without prejudice to the State's right to seek reindictment before another and separate grand jury.' Instead of instituting reindictment proceedings, the State has brought this appeal.
We turn first to a consideration of the circuit court's finding that the cumulative effect of the prosecution's conduct before the grand jury was to prejudice the appellees in their substantial constitutional right to a fair and impartial grand jury proceeding. 1 Article I, section 8 of the Constitution of the State of Hawaii provides in pertinent part:
No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . ..
Although the requirement of a grand jury indictment as a prerequisite to criminal prosecution has been limited by statute, see HRS §§ 705-4, 711-6 et seq., and court rule, see H.R.Cr.P., Rule 7, where the indictment mechanism is employed, it must be through a grand jury which is not only 'legally constituted,' but also 'unbiased.' Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). At least two courts have held that the requirement that an indictment be returned by an unprejudiced grand jury emanates from the due process clause of the Fourteenth Amendment to the United States Constitution. See United States v. Whitted, 325 F.Supp. 520, 522-523 (D.Neb.1971), and State v. Good, 10 Ariz.App. 556, 559-560, 460 P.2d 662, 665-666 (1969). Cf. Gorin v. United States, 313 F.2d 641, 645 (1st Cir. 1963), cert. denied, 379 U.S. 971, 85 S.Ct. 669, 13 L.Ed.2d 563 (1965), relating to the due process clause of the Fifth Amendment. But see United States v. Sweig, 316 F.Supp. 1148, 1153-1154 (S.D.N.Y.1970).
A tendency to prejudice may be presumed when, in presenting cases to the grand jury, the trial court finds that the prosecutor or his deputies have engaged in
words or conduct that will invade the province of the grand jury or tend to induce action other than that which the jurors in their uninfluenced judgment deem warranted on the evidence fairly presented before them.
Commonwealth v. Favulli, 352 Mass. 95, 106, 224 N.E.2d 422, 430 (1967). See also, Attorney General v. Pelletier, 240 Mass. 264, 307-308, 134 N.E. 407, 419, (1922). 2
In the case at bar, the circuit court found that the grand jury 'might not have returned an indictment' if the prosecution had not made the statement that the individual originally charged with the same offense had now 'decided to make a clean breast.' Such a finding certainly establishes a tendency to prejudice. It is unnecessary that the appellees prove that the grand jury was in fact influenced by the statements. State v. Good, 10 Ariz.App. 556, 559, 460 P.2d 662, 665 (1969). Such a burden might well be impossible to meet. We cannot second guess the grand jury by assuming that it would have returned an indictment against the appellees even if the character of the proceeding had been other than what it was. See Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 30 L.Ed. 849 (1887). 3 We hold that the conduct of the prosecutors was contrary to 'those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions", see Palko v. Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. 288 (1937), and therefore violated the due process clause of the Fourteenth Amendment of the Constitution of the United States, and article 1, section 4 of the Hawaii Constitution.
The State relies for its proposition that the circuit court abused its discretion in quashing the indictment against the appellees solely upon its contentions 1) that the appellees had failed affirmatively to demonstrate actual prejudice, and 2) that the circuit court had improperly passed upon the credibility of the witness, Cole...
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