State v. Miyazaki

• Decision Date: 27 May 1982
• Docket Number: No. 8034,8034
• Citation: 645 P.2d 1340,64 Haw. 611
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Ellen M. MIYAZAKI, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1340

645 P.2d 1340

64 Haw. 611

STATE of Hawaii, Plaintiff-Appellee, v. Ellen M. MIYAZAKI, Defendant-Appellant.

No. 8034.

Supreme Court of Hawai'i.

May 27, 1982.

Syllabus by the Court

1. Where hearsay testimony was not deliberately used in place of better evidence to improve the case for an indictment, dismissal of the indictment is not required.

2. In determining the validity of an indictment, the State does not have the burden of proving that the alleged illegal or improper testimony is not prejudicial. It is the duty of the defendant to come forward and present a case proving prejudice.

3. Ordinarily, a reviewing court will not consider issues not raised before the trial court; however, they may be considered and determined where defendant's substantial rights may have been affected.

4. In jury trials, jeopardy attaches when the jury is empaneled and sworn.

5. In examining double jeopardy claims, the facts of a particular case must be considered because the protections of the double jeopardy clause are not absolute and can be found to have been waived.

6. Judicial or prosecutorial misconduct which is designed to deny the defendant's constitutional rights will bar reprosecution.

7. Where a defendant fails to raise a double jeopardy objection at any time before an appeal to this court, consented to the prosecution's nolle prosequi motion, and where the prosecutor did not act in a way designed to deny the defendant's constitutional rights, the defendant will be deemed to have waived her right to be free from reprosecution.

8. Under the Hawaii Rules of Penal Procedure (HRPP) 48(a), dismissal by the prosecutor may not be filed during the trial without the consent of the defendant.

9. Where the prosecution proves beyond a reasonable doubt that a witness' in-court reference to a defendant's prior trial did not contribute to the verdict obtained, that error can be disregarded as harmless.

10. A vague and indefinite reference to an earlier trial is not the type of witness' statement which creates such undue prejudice as to require reversal of a conviction.

11. A trial court is empowered with the authority to determine whether a challenged witness' statement merits a cautionary instruction or the declaration of a mistrial.

12. In considering a defendant's request for separate trials under HRPP 14, the trial court is under a duty to balance possible prejudice to defendant from joinder with the public interest in the efficient use of judicial time through joint trials.

13. HRPP 14 motions will not be reversed absent a clear showing of abuse of discretion.

Francis T. O'Brien, Honolulu, on the briefs for appellant.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, on the brief for appellee.

Before RICHARDSON, C. J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ.

HAYASHI, Justice.

Appellant Ellen M. Miyazaki (hereinafter appellant) appeals from her conviction on two counts of forgery in the second degree entered against her on August 5, 1980. She contends that several reversible errors occurred in her prosecution for the aforementioned offenses.

On the morning of May 4, 1979, the appellant entered the main branch of American Security Bank in Honolulu and presented a check for $175 to the bank teller. The check bearing the name of Nancy D. Omi (hereinafter Ms. Omi or victim) was accepted by the teller and the money was given to the appellant. Three days later, the appellant again entered the bank and cashed with a different teller a check bearing the name of Ms. Omi, this time in the amount of $150.

It was established at trial that the two checks had been drawn on the account of the victim without her permission and that the checks were cashed out of their numerical sequence. It was also established that the signatures appearing on the checks were not executed by the victim.

At trial, testimony was adduced which showed that the appellant and Ms. Omi were both employees at the main branch of American Security Bank. It was further adduced that they had on occasion eaten lunch and gone shopping together. In fact, on the evening of May 3, 1979, the night before the first check was cashed, the appellant and the victim had gone shopping together at the Ala Moana Shopping Center. During this shopping trip, the victim at one point asked the appellant to hold her purse while she was trying on some clothing. The victim did not see the appellant take any checks from that purse.

During May of 1979, the bank conducted an internal audit of the appellant involving the forged checks. After meeting with the chief auditor on May 8, 1979, the appellant never returned to work at the bank. Efforts by the bank to subsequently contact the appellant were futile.

On June 27, 1979, the appellant was indicted by the Oahu Grand Jury on two counts of forgery in the second degree, in violation of Hawaii Revised Statutes (HRS) § 708-852. ¹ These indictments were handed down after hearsay testimony was heard at the grand jury hearing. This testimony was heard because the victim was then residing in California and was not available at the time of the hearing.

On August 23, 1979, the appellant filed a motion to quash indictment, arguing inter alia, that there had been an impermissible use of hearsay at the grand jury hearing. A hearing on that motion was heard before the Honorable Toshimi Sodetani on September 19, 1979. At that hearing, Judge Sodetani denied the motion after finding that there was no evidence adduced to show that the hearsay testimony was deliberately used in place of the victim's testimony or that the hearsay testimony did not accurately reflect her signed statement.

Jury trial began on February 19, 1980. After a jury was empaneled and sworn in, the appellee moved to nolle prosequi Count II of the indictment because of the unavailability of a crucial state witness. Counsel for the appellant expressed no objection to that motion and it was granted. After a trial was held on Count I, the jury was not able to reach a verdict and a mistrial was declared.

On March 25, 1980, the appellant was reindicted on two counts of forgery in the second degree. Having nolle prosequied Count II at the first trial, the second indictment count was renumbered Count III. The appellant made no objection on double jeopardy grounds, nor did she make any motion to dismiss the indictment.

On March 16, 1980, the State filed a motion to consolidate Counts I and III. The trial judge granted the motion, reasoning that the two incidents appeared to arise out of the same conduct and that the witnesses would be substantially the same for both counts.

Trial was finally held on August 5, 1980. At that trial, prosecution witness David McCoy, the bank's chief auditor, made a reference on cross-examination to his testimony at a prior trial involving the appellant. Appellant's counsel at this point immediately moved for a mistrial, alleging that insurmountable prejudice had occurred. The trial judge denied the motion, stating that a cautionary instruction to the jury to disregard that reference would be made. The appellant was convicted on both counts.

Appellant first argues that the trial judge abused his discretion when he refused to dismiss the indictment after learning that hearsay was used at the grand jury proceeding. She argues that the testimony of Honolulu Police Department Detective Wayne Fergerstrom regarding the conversation she had with the victim, Nancy D. Omi, was an impermissible use of hearsay because the appellee made no effort to secure the attendance of the victim despite having knowledge of her whereabouts.

During the grand jury proceedings of June 27, 1979, the following exchange occurred between the prosecutor and Detective Fergerstrom:

Q. What did Nancy D. Omi tell you about those checks?

A. She said the signature and the checks were forgeries, and she did not allow anyone to sign her name or cash her checks.

Q. Did she authorize anyone to cash the checks?

A. No, sir.

Q. Did she say whether she knew Ellen Miyazaki?

A. Yes, sir.

Q. Did she know Ellen Miyazaki?

A. Yes, sir. She knows her as a good friend.

Q. Did Ellen Miyazaki have permission to cash those checks?

A. No, sir.

The victim, Nancy D. Omi, did not testify at the grand jury proceeding.

We address this issue by first reviewing this court's prior decisions involving the use of hearsay at grand jury proceedings. In State v. Layton, 53 Haw. 513, 515, 497 P.2d 559, 561 (1972), we established the general proposition that hearsay evidence before the grand jury should only be used in exceptional circumstances. We defined "exceptional circumstances" as existing when "it is demonstrably inconvenient to summon witnesses able to testify from personal knowledge." However, later, in State v. Murphy, 59 Haw. 1, 575 P.2d 448 (1978), we noted that the rule enunciated in Layton was not a hard and fast one, but merely an expression of policy. 59 Haw. at 5-6, 575 P.2d at 453. Instead, we announced in Murphy the presently applicable rule which states that "where the hearsay testimony was not used deliberately in the place of better evidence to improve the case for an indictment, dismissal of the indictment is not required." Id. 59 Haw. at 6, 575 P.2d at 453. We most recently affirmed the Murphy rule in State v. O'Daniel, 62 Haw. 518, 522-23, 616 P.2d 1383, 1388-89 (1980).

In the present case, the trial judge, after a hearing on the appellant's motion to quash indictment, ruled that:

(I)n this case, the (hearsay) testimony was presented by the prosecution because the declarant was not in Hawaii and was not available at the time this matter came before the grand jury. There is no evidence to indicate that the hearsay testimony of Detective Fergerstrom was presented deliberately in place of Nancy Omi's statement in the indictment nor is there any evidence to indicate that the hearsay testimony did not accurately reflect the declarant's statement.

In reviewing the...