State v. Kahlbaun

• Decision Date: 28 December 1981
• Docket Number: No. 8168,8168
• Citation: 638 P.2d 309,64 Haw. 197
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Gabriel K. KAHLBAUN, Defendant-Appellee, and Randall Ku Nakoa, Defendant.
• Court: Hawaii Supreme Court

Page 309

638 P.2d 309

64 Haw. 197

STATE of Hawaii, Plaintiff-Appellant, v. Gabriel K. KAHLBAUN, Defendant-Appellee, and Randall Ku

Nakoa, Defendant.

No. 8168.

Supreme Court of Hawai'i.

Dec. 28, 1981.

As Amended Jan. 12, 1981.

Reconsideration Denied Jan. 12, 1981.

Syllabus by the Court

1. The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself, and the court is not at liberty to search for meaning beyond the instrument.

2. Where the text of a constitutional amendment is ambiguous, the court may look to the object sought to be accomplished, history of the times and state of being when the provision was adopted, the understanding of the voters who adopted the constitutional provision, and the legislative implementation of the constitutional amendment.

3. A grand jury proceeding is not an adversary hearing. Rather it is an ex parte investigation to determine whether a crime had been committed and whether criminal proceedings should be instituted against any person.

4. The debates, proceedings and committee reports of the constitutional convention do not have binding force upon this court and its persuasive value depends upon the circumstances of each case.

5. Article I, Section 11 of the Hawaii Constitution does not require the physical presence of the independent grand jury counsel throughout the grand jury proceeding.

6. The absence of the independent grand jury counsel from the grand jury proceeding must be shown to be prejudicial to the accused in order to invalidate indictment and the accused has the burden of establishing prejudice.

7. At the outset of each grand jury session, the independent grand jury counsel must note his/her presence on the record and instruct the grand jury on the procedures to summon the independent counsel for consultation.

8. Although physical presence is not required by the constitution, the independent grand jury counsel should be in close proximity to the grand jury.

Arthur Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Jerry I. Wilson, Honolulu (Wilson & Berman, Honolulu, of counsel) for defendant-appellee.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

OGATA, Justice.

The State of Hawaii (hereinafter State) appeals an order and written decision, and an order denying the State's motion for reconsideration by the First Circuit Court where the indictment against defendant-appellee, Gabriel Kahlbaun (hereinafter appellee), was dismissed for lack of independent grand jury counsel as provided for under Article I, Section 11 of the Hawaii State Constitution. The question presented for our consideration is whether Article I, Section 11 of the Hawaii Constitution requires the physical presence of the independent grand jury counsel throughout the grand jury proceeding. For the reasons set forth below, we reverse the orders of the First Circuit Court.

On June 6, 1980, the statutory provisions implementing Article I, Section 11 were enacted into law. See Act 209, S.L.H.1980, now codified in HRS §§ 612-51 through 612-59 (1981 Supp.). David Fong and retired Judge Masato Doi were appointed by the chief justice as independent grand jury counsel on June 19, 1980. Thereafter, on June 25, 1980, the independent counsel were sworn in and introduced to the members of the Oahu Grand Jury. A supplemental charge was then given to the grand jurors by the supervising circuit court judge, informing them of the role of the independent grand jury counsel. ¹ Then, the independent counsel noted their appearances for the record.

As a matter of practice, the grand jurors were also informed that if they needed to consult with the independent grand jury counsel, the grand jurors were to call the Criminal Assignments Office of the First Circuit Court. Then, in turn, the assignments office clerk would contact the independent counsel, on a beeper, to come and consult with the grand jury.

Appellee was indicted by the Oahu Grand Jury on August 20, 1980, for burglary in the first degree, in violation of HRS § 708-810(1)(c). Independent counsel David Fong was responsible for advising the grand jury on this date. The record indicates that Fong informally noted his appearance to the grand jury prior to the start of the grand jury proceeding. ² However, Fong was not present during the presentation of evidence in the instant case. And in this particular case, the grand jurors did not direct any questions of law to the independent grand jury counsel.

On October 20, 1980, appellee filed a motion to dismiss indictment alleging, inter alia, that the absence of the grand jury counsel during the grand jury proceeding requires the dismissal of the instant indictment. Numerous hearings on the motion were held.

Then on January 20, 1981, the trial court rendered its decision and granted appellee's motion to dismiss the indictment. In a lengthy written decision, the First Circuit Court held that Article I, Section 11 of the Hawaii Constitution mandated the physical presence of the independent grand jury counsel throughout the grand jury proceeding. After examining the relevant standing committee report, convention debates and the underlying objectives of the amendment, the trial court concluded that it was the intent of the framers to have the independent grand jury counsel present throughout the grand jury proceeding. The trial court reasoned that in order to effectuate the independent grand jury counsel's role of advising the grand jury when appropriate and insuring the independence of the grand jury, counsel's presence throughout the proceeding was necessary.

Then on January 26, 1981, the circuit court entered its order dismissing the indictment against appellee. Subsequently, the State filed a motion for reconsideration on January 30, 1981, which was denied by the court on February 26, 1981. The State then brought this appeal. ³

I.

Article I, Section 11 of the Hawaii State Constitution reads:

Whenever a grand jury is impaneled, there shall be an independent counsel as appointed by law to advise the members of the grand jury regarding matters brought before it. Independent counsel shall be selected from among those persons licensed to practice law by the supreme court of the State and shall not be a public employee. The term and compensation for independent counsel shall be as provided by law.

This provision is unique in American jurisprudence for there is no comparable provision in either the federal or other state constitutions. Previously, we have had the opportunity to interpret this constitutional amendment. E.g., State v. Hehr, 63 Haw. 640, 633 P.2d 545 (1981); State v. Pendergrass, 63 Haw. 633, 633 P.2d 1113 (1981); State v. Melear, 63 Haw. 488, 630 P.2d 619 (1981); State v. Rodrigues, 63 Haw. 412, 629 P.2d 1111 (1981). A review of our holdings in these cases is appropriate and helpful.

In State v. Rodrigues, supra, the questions presented for our consideration were whether Article I, Section 11 was self-executing and whether due process of law was violated by the absence of the independent grand jury counsel. We held that this amendment was not self-executing and that subsequent legislation was necessary to make this provision operative. We also held that the mere absence of the independent grand jury counsel was not a violation of due process. The accused has the burden of proving prejudice by the absence of the independent grand jury counsel.

The holdings of Rodrigues were followed in the subsequent cases of State v. Melear, supra, and State v. Pendergrass, supra.

Then in State v. Hehr, supra, we held that Article I, Section 11 did not create a substantive right for the accused. We stated:

Although this constitutional provision provides indirect benefits to the accused, the independent counsel's role is not to serve as an advocate on the accused's behalf. Rather, Article I, Section 11 was established to ensure an independent grand jury and to relieve the prosecutor of the conflicting burdens of presenting evidence in support of the indictment and advising the grand jury on matters of law.

63 Haw. at 641, 633 P.2d at 546-47.

Given these prior interpretations of Article I, Section 11, we are also mindful of the rules of construction relating to constitutional provisions. The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. State v. Miyasaki, 62 Haw. 269, 614 P.2d 915 (1980); H.G.E.A. v. County of Maui, 59 Haw. 65, 80-81, 576 P.2d 1029, 1039 (1978). This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument. Draper v. State, 621 P.2d 1142 (Okla.1981); Perkins v. Eskeridge, 278 Md. 619, 366 A.2d 21 (1976). However, if the text is ambiguous, extrinsic aids may be examined to determine the intent of the framers and the people adopting the proposed amendment. Newman v. Hjelle, 133 N.W.2d 549 (N.D.1965); Director of Dep't of Agriculture & Environment v. Printing Ind. Ass'n., 600 S.W.2d 264 (Tex.1980).

The trial court found that Article I, Section 11, on its face, required the independent grand jury counsel to be present throughout the grand jury proceeding. The trial court placed great emphasis on the independent counsel's function to "advise the members of the grand jury regarding matters brought before it in its proceeding," and reasoned that in order to effectuate the role of advising the grand jury, the independent grand jury counsel must be physically present throughout the grand jury proceeding.

The language of Article I, Section 11, does not clearly express the intent of the framers on the issue of whether the independent grand jury counsel must be physically present at...