State v. Leong, 4820

• Citation: 465 P.2d 560,51 Haw. 581
• Decision Date: 19 February 1970
• Docket Number: No. 4820,4820
• Parties: STATE of Hawaii v. Emmett Chong Sing LEONG.
• Court: Supreme Court of Hawai'i

Page 560

465 P.2d 560

51 Haw. 581

STATE of Hawaii v. Emmett Chong Sing LEONG.

No. 4820.

Supreme Court of Hawai'i.

Feb. 19, 1970.

Syllabus by the Court

1. The purpose for the order excluding a witness from a courtroom is to prevent him from listening to the testimony of other witnesses and 'shaping' or fabricating his testimony accordingly.

2. In a criminal case it is error for a trial court to prevent a defense witness from testifying by the invocation of such order.

3. The general principles of law is that in construing constitutional provisions guaranteeing fundamental rights, they are to be liberally construed so that the purpose to be attained, or the evil to be remedied, is accomplished.

4. The right of the accused to have compulsory process for obtaining witnessesses in his favor, under the Hawaii Constitution, Art. I, Sec. 11, includes the right to have witnesses so subpoenaed testify in his favor in spite of their behavior or actions in court.

5. Thus, a witness who violates an order excluding witnesses from the courtroom should not be disqualified as a witness for a defendant in a criminal case although such conduct may affect his credibility.

6. The proper recourse against a witness who violates an order excluding witnesses is contempt proceedings for such conduct.

7. Hearsay evidence is excluded because it lacks the sanction of an oath and the test of cross-examination, but where there is a high degree of trustworthiness, it is admissible.

8. The rationale for admitting declarations against interest is that the declarations are trustworthy and unlikely to be false because one will not make false statements against his interest.

9. A declaration against penal interest is no less trustworthy than a declaration against pecuniary or proprietary interest because criminal implication is certainly as damaging, if not more, as one's declaration against pecuniary or proprietary interest.

10. Providing that the other requirements of the declaration against interest exception to the hearsay rule are met, the defense's witness should be permitted to testify as to the declarations against penal interest made by another.

Charles H. Silva, Jr., Honolulu (Ernest Y. Yamane, Honolulu, on the brief; Bicoy & Yamane, Honolulu, of counsel), for appellant.

Stanley Kanetake, Deputy Pros. Atty. (Barry Chung, Pros. Atty., and Dannis A. Ing. Deputy Pros. Atty., Honolulu, on the brief), for appellee.

Before RICHARDSON, C. J., MARUMOTO, ABE, and LEVINSON, JJ., and Circuit Judge OGATA in place of KOBAYASHI, J., disqualified.

ABE, Justice.

On July 26, 1968, two police officers saw defendant Emmett Leong get into a car driven by Eugene Kim and when the car stopped at an intersection, the police immediately pulled up behind to arrest defendant under warrants of arrest. As one of the officers alighted from the police car, he saw defendant move his right hand, then saw an object fall through the window on the side where defendant was sitting. Defendant was arrested.

The object, when recovered, was found to be a piece of rubber with three gelatin capsules containing heroin. Both defendant and Kim, known by the police as users of heroin, were charged with unlawful possession of narcotics. Later, Kim was released for lack of evidence.

During defendant's trial before a jury, the court refused to allow defense witness Edmund Conchee to testify. Defendant was found guilty of the offense of unlawful possession of narcotics and was sentenced to 10 years' imprisonment. Defendant appealed.

Defendant contends that the trial court's refusal to allow defense witness Edmund Conchee to testify because of his presence in the courtroom during the trial was prejudicial error.

The record shows that at the inception of the trial the court ordered that:

'* * * any person in the courtroom who may be a witness in this case must leave the courtroom and wait outside until called to testify. If he stays in the courtroom, then he will not be permitted to testify later on.'

After defendant had testified, his counsel called Edmund Conchee to testify. The State objected on the ground that Conchee had been in the courtroom and had heard the testimony of other witnesses. The trial court sustained the objection and refused to permit Conchee to testify, invoking the above-mentioned order.

I. Order Excluding Witness

The purpose for the order excluding a witness from a courtroom is to prevent him from listening to testimony of other witnesses and then 'shaping' or fabricating his testimony accordingly. United States v. Leggett, 326 F.2d 613 (4th Cir. 1964); Witt v. United States, 196 F.2d 285 (6th Cir. 1952). It would appear that this may not be a very sound reason because there are other ways in which testimonies may be 'shaped' or fabricated. ¹ However, even accepting the soundness of the reason for the rule on its face value, we hold that the trial court erred in invoking the order to prevent a defense witness from testifying in this case.

The Hawaii Constitution, Art. I, § 11, provides that: 'In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining witnesses in his favor * * *.' ² What right of an accused is protected by the provision? To hold that the provision merely gives an accused the right to the issuance of subpoenas to compel attendance of witnesses who may testify in his favor, but that it does not entitle an accused to the testimony of witnesses so subpoenaed because of their actions or behavior in court, we believe, would make this right hollow and worthless.

The general principle of law is that in construing constitutional provisions guaranteeing fundamental rights, they are to be liberally construed so that the purpose to be attained, or the evil to be remedied, is accomplished.

In Boyd v. United States, 116 U.S. 616, 634, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the United States Supreme Court held that suits for penalties and forfeitures, though they were civil in form, for violations of the custom revenue law were quasi-criminal in nature and they were to be deemed criminal proceedings. And at pages 634-635, 6 S.Ct. at pages 534-535 the Court said:

'* * * a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the fifth amendment to the constitution, and is the equivalent of a search and seizure-and an unreasonable search and seizure-within the meaning of the fourth amendment. Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. * * *'

Also in Gouled v. United States, 255 U.S 298, 304, 41 S.Ct. 261, 263, 65 L.Ed. 647 (1921), the United States Supreme Court said that rights guaranteed by the Fourth and Fifth Amendments were

'* * * indispensable to the 'full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen,-the right to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over zealous executive officers.'

We have no doubt that the compulsory process provision in the Hawaii Constitution, Art. I, § 11, was intended to guarantee an accused the right to have witnesses testify in his favor. Thus, we hold that the trial court erred in refusing to permit a defense witness to testify, under an order excluding witnesses from the courtroom, because by so doing it denied defendant this constitutional right to have witnesses testify in his favor.

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