State v. Layton

• Citation: 497 P.2d 559,53 Haw. 513
• Decision Date: 25 May 1972
• Docket Number: No. 5208,5208
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Warren A. LAYTON, Defendant-Appellee.
• Court: Supreme Court of Hawai'i

Page 559

497 P.2d 559

53 Haw. 513

STATE of Hawaii, Plaintiff-Appellant, v. Warren A. LAYTON, Defendant-Appellee.

No. 5208.

Supreme Court of Hawai'i.

May 25, 1972.

Syllabus by the Court

1. Indictment may be based on hearsay; however, hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge.

2. There is a persumption that an indictment was found by a grand jury upon sufficient evidence, and the burden rests upon the person who asserts that is was not to prove the assertion.

3. The presumption of validity which attaches to an indictment is not overcome by an affidavit of defense counsel, made upon information and belief, which stated that a police detective was the only witness before the grand jury and the detective provided hearsay testimony regarding defendant's intent, but which was silent as to whether the detective gave any testimony of his own knowledge, and, if he did not, whether the prosecution deliberately relied upon hearsay alone when better evidence was available for presentation to the grand jury.

4. After an appeal has been taken to this court from its judgment, the circuit court, which did not have a transcript of grand jury proceedings before it when it made its ruling, has no jurisdiction to order the preparation of such transcript and include it in the record on appeal.

Leland H. Spencer, Deputy Pros. Atty., City and County of Honolulu (Barry Chung, Pros. Atty., with him on the brief), for plaintiff-appellant.

James T. Leavitt, Jr., Honolulu (Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, of counsel), for defendant-appellee.

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

MARUMOTO, Justice.

This is an appeal by the State of Hawaii from a circuit court order granting the motion of defendant to dismiss an indictment against him for first degree murder. The appeal is authorized under HRS § 641-12.

The ground stated for the motion was that 'the Grand Jury was presented with only hearsay evidence, and that neither the hearsay evidence itself, nor the declarations upon which the hearsay was premised would be admissible in a court of law.'

Defendant supported the motion with an affidavit of his counsel in which the counsel deposed upon information and belief that the only person who testified before the grand jury was a detective from the Honolulu police department, and that, in testifying regarding the defendant's intent, the detective provided hearsay testimony, which was, in turn, based on incompetent evidence, namely, a statement given by defendant's wife.

In granting the motion, the circuit court initially stated that it was 'going on the basis that there was hearsay testimony concerning what was said by the wife of the defendant and, to that extent, that testimony should not be presented to the Grand Jury.'

However, the court later modified its position, and stated: 'Well, I would think that where the witness is easily obtained, I think there should be first-hand testimony; where you have difficulty in obtaining a witness the court will consider hearsay.'

That later statement should be considered in the light of another statement in which the court expressed its agreement with United States v. Arcuri, 282 F.Supp. 347 (E.D.N.Y.), aff'd 405 F.2d 691 (2d Cir. 1968).

In United States v. Arcuri, the defendants moved in the district court, during the trial and also after being found guilty, to dismiss the indictment on the ground that it was based purely on hearsay in that the only witness before the grand jury was a government agent, without direct knowledge of the relevant facts, who presented a synthesized report of the facts investigated by other government agents. The district court denied the motion, stating the the defendants were not prejudiced under the circumstances shown in the case and that the case was inappropriate for the drastic action of dismissal of the indictment. However, in doing so, the court also stated that its action in the case did not mean that it was without power to act, and that, in the future, it would dismiss an indictment without a showing of prejudice to the defendant if it should be shown that hearsay alone was deliberately relied upon when better evidence was readily available for presentation to the grand jury.

The statement of the district court in United States v. Arcuri, regarding its future course, was based upon the admonition to prosecutors contained in the opinion of the court in United States v. Umans, 368 F.2d 725, 730 (2d Cir. 1966).

In United States v. Umans, the indictment was based upon the testimony of an Internal Revenue agent who summarized for the grand jury the contents of various affidavits of persons who later testified at the trial. The defendant requested the district court to inspect the grand jury minutes. The request was refused. Upon appeal, the court of appeals found no error in the refusal, citing Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), which allows the government to obtain indictments upon hearsay evidence, but...