State v. Moriwake, 7958

Citation65 Haw. 47,647 P.2d 705
Decision Date30 June 1982
Docket NumberNo. 7958,7958
PartiesSTATE of Hawaii, Plaintiff-Appellant, v. Gilbert Masaru MORIWAKE, Defendant-Appellee.
CourtSupreme Court of Hawai'i

Syllabus by the Court

1. Prohibition against double jeopardy aims to preserve the finality of judgments and to preclude repeated attempts by the State to convict a criminal defendant.

2. Prohibition against double jeopardy is not implicated until jeopardy has attached.

3. In jury trial, jeopardy attaches once the jury is empaneled and sworn.

4. Principles of double jeopardy pose no bar to reprosecution after discharge of a jury if there was manifest necessity for discharge or the ends of public justice would otherwise be defeated.

5. Mistrial ordered sua sponte because of true inability of jurors to agree on verdict represents classic example of manifest necessity for discharge sufficient to allow reprosecution.

6. Hawaii Constitution proscription of double jeopardy may preclude infinite number of retrials even where prior mistrials represented classic examples of manifest necessity for discharge of jury.

7. Neither federal nor state constitution proscription of double jeopardy required dismissal of indictment for manslaughter following two hung jury mistrials on the charge.

8. Inherent power of court includes power to protect itself, power to administer justice, power to promulgate rules of practice, and power to provide process where none exists.

9. Inherent judicial power to administer justice is properly invoked where trial court sua sponte dismisses indictment with prejudice following declaration of one or more hung jury mistrials, even though reprosecution is not precluded on double jeopardy grounds.

10. Factors which trial court should consider in determining whether to exercise inherent power to dismiss indictment following one or more hung jury mistrials include severity of offense charged, number of prior mistrials and circumstances of jury deliberations therein, length, complexity and similarity of evidence presented in prior trials, likelihood of any substantial difference in subsequent trial, relative case strength, and professional conduct and diligence of respective counsel.

11. In most cases, serious consideration should be given to dismissing an indictment with prejudice after a second hung jury mistrial.

12. Trial court did not abuse inherent power to dismiss manslaughter indictment with prejudice where two mistrials were declared following two full, nearly identical trials in each of which the jury was genuinely unable to reach a verdict.

13. Dismissal of a criminal case should be accompanied by written factual findings so that basis for exercise of inherent power is clear and informed review of such exercise is possible.

Lawrence R. White, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Edmund K. U. Yee, Honolulu (Myles T. Yamamoto, Honolulu, on the brief; Yamamoto & Yee, Honolulu, of counsel), for defendant-appellee.

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

RICHARDSON, Chief Justice.

The question on appeal is whether an indictment for manslaughter was properly dismissed with prejudice following two hung jury mistrials on the charge. Appellant State of Hawaii ("State") argues that constitutional principles of double jeopardy posed no bar to further prosecution, and that the trial court abused what the State agrees was the court's inherent power to preclude further prosecution in such circumstances. While the double jeopardy proscriptions of our federal and state constitutions did not themselves bar continued prosecution, we affirm because we do not view the trial court's action to have been an unjustified exercise of implicit powers.

I.

On July 31, 1979, Gilbert Masaru Moriwake was indicted for manslaughter. The indictment charged that "(o)n or about the 12th day of May, 1979, in the City & County of Honolulu, State of Hawaii, ... (Moriwake) did recklessly cause the death of Ruby Scanlan by beating her (with his hands and feet), thereby (violating HRS § 707-702(1)(a) (1976) 1) ...."

A three day jury trial was had in February 1980. Moriwake apparently did not deny the homicide, but instead defended against the manslaughter charge on the ground that his state of mind with regard to Scanlan's death did not constitute recklessness due to extreme intoxication at the time.

Following approximately ten hours of deliberation on the charge, the jury informed the judge that it could not reach a verdict. The judge, after questioning the jury regarding whether and how the deadlock might be broken, concluded that the jury was at an impasse and declared a mistrial sua sponte.

Three months later, Moriwake was again brought to trial for manslaughter. Although before a different judge and jury, the three day jury trial was essentially the same as the first trial with regard to the evidence presented, the witnesses testifying and the legal theories argued.

Four communications from the jury to the judge during the jury's subsequent deliberation on the charge reflected its inability to reach a verdict. After rereading instructions, providing the jury with copies of certain instructions and questioning the jury, the judge concluded that the jury was at a impasse and declared a mistrial sua sponte.

Soon thereafter, Moriwake moved that his indictment for manslaughter be dismissed. In an order filed July 22, 1980, the trial court granted Moriwake's motion. 2 The order does not set forth the bases for the trial court's decision, but the transcript of the hearing on Moriwake's motion includes the following statement by the judge:

There have been two trials in this case entailing essentially the same evidence. And if there were a third trial, virtually the same evidence would very likely be presented. Both of these previous instances, there were hung juries. And the court feels that under the circumstances of this case, a third trial would pose an undue emotional, personal and financial hardship on the defendant.

Of course, if this were a situation entailing, say, murder for hire or a criminal situation, then it would be an element against dismissal. But, as the trial has indicated, 3 ) this entailed certain, shall we say, mitigating circumstances that were not indicative of criminal propensity as in the case, say, of murder or a criminal situation.

The State subsequently brought this appeal from the dismissal of the indictment. 4

II.

We view this case as involving the following two issues:

(1) Was further prosecution of Moriwake barred by constitutional proscriptions of double jeopardy?

(2) Did the trial court possess discretion to dismiss the indictment, and, if so, was such discretion properly exercised?

III.
A.

Turning first to the double jeopardy issue, we begin with our federal constitution's ban against the subjection of any person "for the same offense to be twice put in jeopardy of life or limb ...." U.S.Const. amend. V. This injunction has been made applicable to the states. Benton v. Maryland, 395 U.S. 784, 793-96, 89 S.Ct. 2056, 2061-63, 23 L.Ed.2d 707 (1969).

The principle embodied in the clause has a "primary purpose ... akin to that served by the doctrines of res judicata and collateral estoppel-to preserve the finality of judgments." Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978). But equally if not more important, it stands for the following proposition:

(T)he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Accord: United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion); and Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978).

The prohibition against double jeopardy is not implicated until jeopardy has "attached." Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). To prevent the consequences to a defendant of endless prosecution as well as to give effect to a defendant's "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), such attachment need not await actual conviction or acquittal. More specifically, in a jury trial jeopardy attaches once the jury is empaneled and sworn, Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), and this rule has specifically been made applicable to the states. Crist v. Bretz, supra, 437 U.S. at 37-38, 98 S.Ct. at 2161-2162.

However, even if jeopardy may generally attach prior to judgment, reprosecution is not per se precluded if a trial is aborted. This was the holding in the seminal case of United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824), in which the Court stated the rule that principles of double jeopardy pose no bar to reprosecution after discharge of a jury if there was a "manifest necessity for ... (such discharge), or the ends of public justice would otherwise be defeated." Id. 5

The rule has remained applicable because of a continuing recognition that "a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury ... would be too high a price to pay for the added assurance of personal security and freedom from government harassment which such a mechanical rule would provide." United States v. Jorn, supra, 400 U.S. at 480, 91 S.Ct. at 554. Stated differently:

Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because...

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