State v. Scotland, 6011

• Decision Date: 02 December 1977
• Docket Number: No. 6011,6011
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Robert Anthony SCOTLAND, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 497

572 P.2d 497

58 Haw. 474

STATE of Hawaii, Plaintiff-Appellant, v. Robert Anthony SCOTLAND, Defendant-Appellee.

No. 6011.

Supreme Court of Hawai'i.

Dec. 2, 1977.

Syllabus by the Court

Where the grand jury had been provided with sufficient legal and competent evidence to constitute probable cause of defendant's guilt, its reception of illegal or incompetent evidence which would not prejudice the defendant in the eyes of the grand jury would not authorize the court to set aside the indictment.

In proceedings challenging the validity of an indictment, it is the duty of the defendant to come forward and present a case proving prejudice.

The mere statement that "we knew he was pushing drugs" made by a witness to the grand jury in session investigating a person concerning the commission of an alleged offense in violation of Section 1244(1)(d) of the Hawaii Penal Code, is not prejudicial as to require a dismissal of the indictment returned against that person for such alleged offense.

Calvin K. Murashige, Deputy Pros. Atty., County of Kauai, Lihue, Kauai, for plaintiff-appellant.

James G. Jung, Jr., Deputy Public Defender, Lihue, Kauai, for defendant-appellee.

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

PER CURIAM.

Defendant-appellee, Robert Anthony Scotland (hereinafter appellee), was indicted by the Kauai Grand Jury for the offense of promoting a harmful drug in the first degree in violation of § 1244(1)(d) of the Hawaii Penal Code, as enacted by Act 9, Session Laws of Hawaii 1972. ¹ The trial court quashed the indictment upon appellee's motion and the State appeals. We reverse and remand the case for further proceedings.

We have scrutinized the transcript of the testimony received by the grand jury as to a narcotics trafficking investigation leading to the incident constituting the offense mentioned in the indictment. Such an examination reveals that a certain statement was made by the latter of two witnesses who appeared before the grand jury. In the course of his examination, the deputy prosecutor asked the second witness, a police detective: "Q: Will you tell the members of the grand jury the facts and circumstances under which you met with Officer Barry Born?" In response thereto, the witness replied: "A: Earlier we decided to work a case against this Scotland. We knew he had been pushing drugs." ² The trial court found that the latter sentence of the answer had a tendency to prejudice the appellee before the grand jury and granted his motion to dismiss the indictment.

Our review of the transcript of the evidence which was before the grand jury demonstrates, and we find, that there was more than sufficient legal and competent evidence for the grand jury to find probable cause that the appellee violated HRS § 712-1244(1)(d) (Special Pamphlet). By probable cause, we mean "(s)uch a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of guilt of the accused." Malleck v. Superior Court, 142 Cal.App.2d 396, 397, 298 P.2d 115, 116 (1956); People v. Rissman, 143 Cal.App.2d 488, 299 P.2d 944 (1956).

We have held that where sufficient legal and competent evidence is presented to a grand jury, the reception of illegal or incompetent evidence would not authorize the court to set aside an indictment if the remaining legal evidence, considered as a whole, is sufficient to warrant the indictment. State v. Hassard, 45 Haw. 221, 365 P.2d 202 (1961); accord, People v. Calandrillo, 29 Misc.2d 485, 215 N.Y.S.2d 355 (1961); see People v. Avant, 33 N.Y.2d 265, 352 N.Y.S.2d 161, 307 N.E.2d 230 (1973); People v. Leary, 305 N.Y. 793, 113 N.E.2d 303 (1953). In the instant case, because there was ample evidence amounting to probable cause in the first witness's testimony and the second witness's testimony exclusive of the complained of sentence, it is apparent that the indictment should have been allowed to stand. The instant case is similar to State v. Hassard, supra, wherein this Court expressed the proposition that the testimony of a wife against her husband was incompetent as violative of R.L.H.1955, § 222-18, but that such testimony would not vitiate and nullify the indictment if otherwise valid. See Coppedge v. United States, 114 U.S.App.D.C. 79, 83, 311 F.2d 128, 132 (1962).

It is not contended by appellee that the grand jury was "illegally constituted," Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), or was "biased" as defined in Pierre v. Louisiana, 306 U.S. 254, 59 S.Ct. 536, 83 L.Ed. 757 (1939). Thus, the only basis upon which the trial court based its decision was the underlying prejudice alleged to have been generated by the irresponsive statement of the witness.

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 (2d Cir. 1962), cert. denied 370 U.S. 919, 82 S.Ct. 1558, 8 L.Ed.2d 499 (1962); United States v. Hoffa, supra.

If the illegal or improper testimony clearly appears to have improperly influenced the grand jurors despite the presence of sufficient evidence amounting to probable cause to indict the defendant, he would be entitled to a dismissal. People v. Barbour, 152 Misc. 39, 273 N.Y.S. 788 (1934); see State v. Joao, 53 Haw. 226, 491 P.2d 1089 (1971). Such is not the case here. All we have here is the statement by a witness that "we knew that he had been pushing drugs," a bare conclusion on the part of the witness, Territory v. Gusman, 36 Haw. 42 (1942), which would be subject to a motion to strike by defense counsel if it were elicited at trial. State v. Hashimoto, 46 Haw. 183, 195, 377 P.2d 728, 736 (1962). It appears to us that the complained of statement explained why the police department had focused its attention upon the appellee. There is no evidence in the record that any member of the grand jury was...