State v. Pulawa
| Decision Date | 07 July 1980 |
| Docket Number | No. 6493,6493 |
| Citation | 62 Haw. 209,614 P.2d 373 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Sean Kaehuokalani PULAWA, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Dismissal of an indictment is required only in flagrant cases in which the grand jury has been overreached or deceived in some significant way, as where perjured testimony has knowingly been presented, or where other prosecutorial behavior, even if unintentional, causes improper influence and usurpation of the grand jury role.
2. Mere cautionary statements to a witness by a prosecutor before the grand jury that the witness is under oath and that anything said by that witness which is not true may subject him to prosecution by the State for perjury, as well as a statement by such prosecutor to the grand jury that "as far as any possible perjury charges against (the witness,) we'll bring that up in further hearing if we feel we've got sufficient evidence" did not constitute extreme misconduct and did not clearly infringe upon jury's decision-making function.
3. The responsibility for maintaining the delicate balance between probative value and prejudicial effect lies largely within the discretion of the trial court.
4. It is erroneous for a trial judge to overrule an objection by the defense to a question asked by a prosecutor to a witness before a jury employing the phrase "police mug photographs" because such a phrase would have reference to defendant's identity that he had been previously routed through the arrest process and suggests to the jury that he has a prior criminal record.
5. Error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes, whether there is a reasonable possibility that the error might have contributed to the conviction.
Marie N. Milks, Deputy Public Defender, Honolulu, on the briefs, for defendant-appellant.
Lee T. Nakamura, Deputy Pros. Atty., Honolulu, on the brief, for plaintiff-appellee.
Before RICHARDSON, C. J., OGATA, and MENOR, JJ., Retired Justice KOBAYASHI and Circuit Judge LUM assigned by reason of vacancy.
Defendant-appellant Sean Kaehuokalani Pulawa, hereinafter appellant, was convicted after a jury trial of two counts of robbery in the second degree in violation of Section 841(1)(a) of the Hawaii Penal Code, Act 9, Session Laws of Hawaii, 1972, 1 and one count of kidnapping in violation of Section 720(1) (e) of the Hawaii Penal Code, Act 9, Session Laws of Hawaii, 1972. 2 Thereafter, he was sentenced to serve a prison term of four years 3 as a youthful offender. He has appealed from this judgment and sentence. We affirm.
Appellant contends that the trial court erred when it denied his motion which was filed just before the commencement of trial in which he sought to quash and dismiss the indictment. In this motion appellant alleged that substantial improprieties had occurred before the grand jury based upon the conduct of the deputy prosecuting attorney, and because of such alleged prejudicial misconduct appellant was denied his constitutional right to a fair and impartial grand jury proceeding and due process of law as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 4 4 and 8 5 to the Hawaii Constitution. A copy of the transcript of the proceedings before the grand jury was attached to the motion.
The alleged misconduct by the deputy prosecuting attorney related to the examination of Xavier Adriano, who appeared as a witness before the grand jury. On March 13, 1976, both appellant and co-defendant, Edward Kumukau, were known to this witness. Xavier Adriano had been interrogated by Detective Pocock of the Honolulu Police Department several hours after these alleged offenses had been committed by appellant and his co-defendant, and at that time Pocock had been told by Xavier that he had seen Edward Kumukau, Sean Pulawa and another male, Edward Kekoa near the vicinity of Petrie Park. However, during and at the grand jury hearing held on March 17, 1976 when the deputy prosecutor questioned Xavier, he denied ever seeing during that night Pulawa, Kumukau and Edward Kekoa. Thus the following colloquy ensued:
Q Petrie Park, okay. Did you see Sean Pulawa and Edward Kumukau near Petrie Park there?
A No.
Q Okay. Are you acquainted with Miles Muranaka and Steve Takushi?
A I know Miles from before.
Q During the course of the evening, did you see Sean Pulawa with Miles Muranaka at any time?
A No.
Q Okay. Xavier, do you understand that you are under oath?
A Yep.
Q And if you state anything to the Grand Jury that is not true, you are subject to being prosecuted for perjury?
A Yep.
Q Do you recall giving a statement to Detective Pocock?
A I was talking to him but, yeah, in the morning.
Q Okay. Do you recall telling him that you saw Sean Pulawa and Edward Kumukau?
A No, I don't remember.
Q Do you recall telling him that you saw Sean Pulawa and Edward Kumukau across the street with Miles Muranaka and another individual.
A I never tell him that, no.
Q Is it your statement then to the Grand Jury that you did not tell him this?
A I don't know what I told him.
At a later occasion during the same grand jury session involving the same witness, the deputy prosecutor further cautioned this witness about falsifying testimony before the grand jury in the following manner:
Q All right. I have already advised that you are under oath and subject to penalty of perjury if you falsify any statement, any material statement to the Grand Jury.
A Yeah.
Q Specifically, didn't you tell Detective Pocock that you saw Sean Pulawa, Edward Kumukau, and Edward Kekoa standing outside these three cars?
A (Nods head no.) (Sic.)
Just close to the conclusion of the examination of Detective Pocock before the grand jury by its foreman, the deputy prosecutor voluntarily interjected the following:
(Deputy Prosecutor): As far as any possible perjury charges against Xavier and any line, we'll bring that up in a further hearing if we feel we've got sufficient evidence.
In our affirmance of State v. Joao, 53 Haw. 226, 491 P.2d 1089 (1971), we held that the conduct by the deputy prosecutor by a comment made by him that a witness "has decided to make a clean breast" to the grand jury had resulted in a tendency to prejudice which may be presumed because the trial court had found that the grand jury "might not have returned an indictment" if the prosecution had not so informed the grand jury. We therefore held "that the conduct of the prosecutors was contrary to those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Id. at 230, 491 P.2d at 1091. In that case appellees Joao and Dawson were charged in an indictment with first degree murder. The prosecution's sole witness before the grand jury was Cole U. Kekahuna, who had been first charged with this offense. The grand jury transcript revealed that the deputy prosecutor began as follows:
As Mr. Chung (Prosecuting Attorney for the City and County of Honolulu) has said, the witness that we will present to you this afternoon is Cole U. Kekahuna. Very briefly, Cole Kekahuna was the original defendant charged with the murder . . . . Cole Kekahuna has been in jail for 31/2 months, and as Mr. Chung says, he has decided to make a clean breast. On his testimony, we seek an indictment . . . . Id. at 227, 491 P.2d at 1090.
Upon the conclusion of a hearing to quash and dismiss the indictment, the trial judge in this case had found that Id. at 227-228, 491 P.2d at 1090.
Subsequently, we were confronted by another grand jury case involving a response from a witness to the grand jury which was alleged to have a tendency to prejudice the appellee before the grand jury. State v. Scotland, 58 Haw. 474, 572 [62 Haw. 214] P.2d 497 (1977). In that case defendant was charged in the indictment with promoting a harmful drug in the first degree. We also reviewed the transcript before the grand jury and found that the problem there related to one of the answers given by a witness who stated: Although the trial judge had found the last sentence had a tendency to prejudice, we found otherwise. In reversing the dismissal of the indictment by the trial court, we held in Scotland, supra at 476-77, 572 P.2d at 499:
We hold that in proceedings 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. "(I)n the absence of proof, the court will not assume or conjecture, as a matter of fact, that the grand jury deliberations were so infected as to invalidate the indictment." United States v. Hoffa, 205 F.Supp. 710 (S.D.Fla.1962), cert. denied sub nom. Hoffa v. Lieb, 371 U.S. 892, (83 S.Ct. 188, 9 L.Ed.2d 125) (1962). "We rule that a specific showing of prejudice is necessary to make erroneous the action of the trial judge in refusing to dismiss the indictment." Beck v. United States, 298 F.2d 622, 627 (9th Cir. 1962), cert. denied 370 U.S. 919, (82 S.Ct. 1558, 8 L.Ed.2d 499) (1962); United States v. Hoffa, supra.
We have previously held in State v. Layton, 53 Haw. 513, 516, 497 P.2d 559, 561 (1972), that ...
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