State v. Pulawa

• Decision Date: 29 September 1977
• Docket Number: 5923,Nos. 5917,s. 5917
• Citation: 58 Haw. 377,569 P.2d 900
• Parties: STATE of Hawaii, Plaintiff-Appellant v. Wilford K. PULAWA, Sr., also known as Nappy Pulawa, and Alvin George Kaohu, Defendants-Appellees. STATE of Hawaii, Plaintiff-Appellee v. Robert R. WILSON, also known as Bobby Wilson, Dannette Beirne Leota, also known as Sister, and Henry James Hanalei Huihui, also known as Henry W. Huihui, Defendants-Appellants.
• Court: Hawaii Supreme Court

Page 900

569 P.2d 900

58 Haw. 377

STATE of Hawaii, Plaintiff-Appellant v. Wilford K. PULAWA, Sr., also known as Nappy Pulawa, and Alvin George Kaohu, Defendants-Appellees.

STATE of Hawaii, Plaintiff-Appellee v. Robert R. WILSON, also known as Bobby Wilson, Dannette

Beirne Leota, also known as Sister, and Henry

James Hanalei Huihui, also known as

Henry W. Huihui, Defendants-Appellants.

Nos. 5917, 5923.

Supreme Court of Hawai'i.

Sept. 29, 1977.

Rehearing Denied Dec. 6, 1977.

Syllabus by the Court

1. Where a mistrial is declared without the consent of the defendant, and there is an absence of manifest necessity for the mistrial, a retrial will be barred by double jeopardy.

2. Where the defendant moves for or consents to a mistrial, even though the consent is necessitated by judicial or prosecutorial error, the barrier to reprosecution is ordinarily removed.

3. Where the defendant's mistrial motion is the necessary response to judicial or prosecutorial overreaching designed to avoid an acquittal, or is necessitated by deliberate misconduct which has for its intended purpose the denial of the defendant's constitutional right to a fair trial, and such bad faith conduct has resulted in serious and incurable prejudice to the defendant, reprosecution will be barred.

4. A conspiracy may always be shown as an evidentiary fact to prove participation in the substantive crime, and a formal charge in the indictment is not a necessary predicate to the admissibility of facts and circumstances showing the existence of a conspiracy to commit the principal offense charged.

5. The prosecution is entitled to adduce evidence of declarations made by a co-conspirator pursuant to and in furtherance of the conspiracy, and such declarations are admissible against the other conspirators.

6. The reception of evidence touching upon the existence of conspiracy is necessarily subject to the exercise of sound judicial discretion.

Brook Hart, Honolulu, for defendants-cross appellants.

Roy Chang, Deputy Pros. Atty., Honolulu, for appellant.

David C. Schutter, Honolulu, for defendants-appellees Pulawa & Kaohu.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

PER CURIAM.

On February 13, 1974, the defendants were indicted for the crimes of kidnapping, conspiracy, and murder. Specifically, the indictment charged that the defendants had conspired with one another to kidnap Dennis Masaichi Iha and to murder Lamont Constancio Nery and Dennis Masaichi Iha, and that they did in fact kidnap Lamont Constancio Nery and Dennis Masaichi Iha and did in fact murder Lamont Constancio Nery and Dennis Masaichi Iha. Mr. Brook Hart represented defendants Huihui, Leota, and Wilson. Mr. David Schutter represented defendants Kaohu and Pulawa.

The trial of the defendants before a jury commenced on April 29, 1974. The State rested its case on July 8, 1974. On July 11, 1974, the trial court dismissed the conspiracy counts on the ground that prosecution was barred by the statute of limitations. At the same time the court declared a mistrial on the counts of kidnapping and murder, essentially on the ground that the admission of evidence supportive of the conspiracy counts, which it had dismissed, had prejudicially infected the proceedings as to these remaining counts in the indictment. On April 21, 1975, Mr. Hart and Mr. Schutter jointly filed a motion to dismiss the remaining charges in the indictment, on the ground that a retrial would constitute double jeopardy, in violation of Article I of the Hawaii Constitution, and in violation of the Fifth and Fourteenth Amendments to the United States Constitution. The trial court granted the motion as to defendants Pulawa and Kaohu but denied it as to defendants Huihui, Leota, and Wilson, explaining:

"This would conclude the matter at this point were it not for the fact that as to the defendants Huihui, Wilson and Leota, the Court finds that there was consent to the declaration of the mistrial. The arguments proposed by counsel for those defendants when the Court raised the question of mistrial indicates clearly that the defendants did not merely consent to, but urged the mistrial upon the Court. The mere written record does not reflect the vigor and zeal with which counsel urged the action upon the Court.

"Insofar as the defendants Pulawa and Kaohu are concerned, we are faced with another situation. Counsel for those defendants did not join in the argument propounded by counsel for Huihui, Wilson and Leota. While there would appear to be tacit joinder in the argument and consent to the mistrial, the cases regarding mistrial indicate quite strongly that more positive evidence of consent is required. There is insufficient showing of consent by those defendants indicated in this case. Therefore, as to the defendants Pulawa and Kaohu, the Court finds that a re-trial of the charges as to them would violate the constitutional prohibition against double jeopardy. Therefore, the charges will be dismissed as to defendants Pulawa and Kaohu."

Defendants Huihui, Leota, and Wilson appeal from the amended order denying their motion to dismiss the indictment against them, and the State appeals from that portion of the order dismissing the charges against defendants Pulawa and Kaohu.

I

Where a mistrial is declared without the consent of the defendant, and there is an absence of manifest necessity for the mistrial, a retrial will be barred by double jeopardy. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); HRS § 701-110(4). At issue initially, therefore, is, whether all of the defendants consented to the mistrial. The record shows that they did.

The State offered its first witness on June 21, 1974. The State's two principal witnesses were Clarence Handa and Roy Ryder. Mr. Handa finished testifying on June 25, 1974. Mr. Ryder took the stand on July 1, 1974, and completed his direct testimony just before court adjourned on that day. On the following day, July 2, 1974, Mr. Schutter and Mr. Hart jointly filed a written motion for mistrial based on what they asserted was prejudicial testimony elicited by the State, over their objection, from Mr. Handa and Mr. Ryder. This motion for mistrial, with other defense motions, ¹ was heard on July 10, 1974, after the State had rested its case. Mr. Schutter argued for the motion for mistrial, and on at least two occasions Mr. Hart was asked by the court if he joined in Mr. Schutter's motion for mistrial. Both times Mr. Hart replied in the affirmative. The trial court took the various motions under advisement, and on July 11, 1974, announced its rulings. The motion for mistrial was granted and it was Mr. Schutter who prepared the order "granting motion for mistrial," which was filed on July 15, 1974.

The order terminating the prosecution was clearly in response to a motion made by the defendants. That the trial court granted the motion on grounds not originally and expressly advanced by the defendants at the time they filed their written motion is not of material consequence. For that matter, the ground finally adopted by the court in granting the motion was predicated upon the very point raised by both Mr. Schutter and Mr. Hart in oral argument. ² Having moved for a mistrial, and the trial court having considered their request and declared a mistrial, defendants Pulawa and Kaohu cannot now be heard to complain that the termination of the prosecution was without their consent. HRS § 701-110(4)(a); see also, MacPherson v. State, 533 P.2d 1103 (Alaska), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 101 (1975); People v. Kelly, 132 Cal.App. 118, 22 P.2d 526 (1933).

Furthermore, the record shows that after the declaration of mistrial and before the jury was discharged, the State moved to be allowed to take an interlocutory appeal from the order and requested that the jury not be discharged pending the determination of the appeal. This was tantamount to a request for a stay of the order declaring a mistrial. Both Mr. Hart and Mr. Schutter, however, opposed the State's motion and urged instead that the jury should be discharged. Thereupon the court denied the State's request and advised the jury that "the court has granted the defense motion for mistrial which means that this trial is ended." Under these circumstances it cannot reasonably be said that the defendants did not consent to the declaration of mistrial and the resulting discharge of the jury. Cf. Adkins v. Smith, 205 So.2d 530 (Fla.1968). From the record, we find that the trial court erred in holding that defendants Pulawa and Kaohu did not consent to the mistrial.

II

Where the defendant consents to a declaration of mistrial, even though the consent is necessitated by judicial or prosecutorial error, the barrier to reprosecution is ordinarily removed. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra; United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976); United States v. Jamison, 164 U.S.App.D.C. 300, 303, 505 F.2d 407, 410 (1974). This principle is consistent with the double jeopardy consideration that the defendant should "retains primary control over the course to be followed in the event of such error." Id. 424 U.S. at 609, 96 S.Ct. at 1081. In Jorn, the Supreme Court held If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by...