State v. Tominaga
| Decision Date | 29 May 1962 |
| Docket Number | Cr. N,No. 4224,4224 |
| Citation | 372 P.2d 356,45 Haw. 604 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Wendel Mitsuo TOMINAGA, Roy Isamu Ochi, Algy Kanani Yang, Gilbert Chang, Terry Norio Oda, Reginald Shigeru Satake and Alfred Castro, Defendants-Appellants.o. 3226. STATE of Hawaii, Plaintiff-Appellee, v. Terry Norio ODA, Alfred Castro, Algy Kanani Yang, Reginald Shigeru Satake, Wendell Mitsuo Tominaga, Roy Isamu Ochi and James E. Sato, Defendants-Appellants.o. 3239. STATE of Hawaii, Plaintiff-Appellee, v. Wendell Mitsuo TOMINAGA, Terry Norio Oda, Reginald Shigeru Satake, Robert Hatakeyama, Lionel Luna, Kenneth Ogata and George Yamanaka, Defendants-Appellants.o. 3283. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. A grand jury has the right and power to return an indictment before as well as pending a preliminary examination. A preliminary examination is not a prerequisite to the returning of an indictment by the grand jury.
2. The circuit court's jurisdiction over juvenile defendants who are between the ages of fourteen and eighteen years in criminal proceedings involving felonies is dependent upon a valid consent of the judge of the juvenile court.
3. In giving his consent to the trial of juvenile defendants as adults in criminal proceedings, the judge of the juvenile court must exercise discretion. While no specific findings of fact are required to be made, nonetheless the consent given must not be arbitrary or capricious.
Pence & Ushijima, Martin Pence, Hilo, for appellants.
Yoshito Tanaka, County Atty., County of Hawaii, Cyril Kanemitsu, Deputy County Atty., Hilo, for appellee.
Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.
This appeal is from the order of the trial court denying defendants' suggestion of disqualification and motion to dismiss the indictments entered in three criminal cases, designated below as Criminal Nos. 3226, 3239 and 3283. Preliminarily, this court on May 3, 1961, had ruled that the interlocutory appeal, which was allowed by the trial court, from the order denying the motion to dismiss the indictments would be considered, but that the appeal from the order denying the suggestion for disqualification stood dismissed.
The facts under this appeal stem from Re Castro and Others, 44 Haw. 455, reh. den., 44 Haw. 566. For better understandability, the facts before this court in the Castro case will be briefly reviewed, together with the events occurring subsequent to the remand entered therein which bring the matter once again before this court under this appeal.
These three criminal cases are joined on appeal for purposes of briefing and argument inasmuch as all of the appealing defendants in Criminal No. 3226, namely, Roy Isamu Ochi, Algy Kanani Yang, Gilbert Chang, Terry Norio Oda, Reginald Shigeru Satake and Alfred Castro, with the exception of defendant Chang, are likewise defendants in Criminal No. 3239, and defendants Oda and Satake in both Criminal Nos. 3226 and 3239 are additionally charged in Criminal No. 3283. The appealing defendants were all juveniles when the alleged offenses occurred. The alleged criminal offenses are all felonies stemming from sexual acts involving three different girls. The consent of the judge of the juvenile court to criminal prosecution covering these defendants arose out of the same or related circumstances. The legal problems in each of the cases are basically the same.
In Criminal No. 3226: On Sunday, September 27, 1959, the six juvenile defendants above named, together with defendant Wendell Mitsuo Tominaga, 1 after having been arrested for investigation of rape were in the custody of the Hilo Police Department. The six juvenile defendants were all below the age of 18 years but over 14 years of age. The judge of the juvenile court subsequently gave the county attorney his oral consent that they be tried as adults and not as juveniles. On Monday, September 28, 1959, they were arraigned before the district magistrate in the district court of South Hilo as adults, under the charge of rape. A preliminary examination was demanded by the defendants but their case was continued from time to time. On September 29, 1959, an oral motion was made before the circuit judge for reduction of the bail set by him and as part of the argument the circuit judge (also in this instance the assigned juvenile court judge) was urged to reconsider his oral 'consent' and handle the juvenile defendants as juveniles. This he refused to do, giving his reasons. From this it appears that the judge had received some information from the county attorney prior to giving his oral consent. Thereafter, a petition for rehearing was filed in the juvenile court where the case for the first time was designated as Juvenile No. 5442. When this petition came on for hearing on December 10, 1959, before a new judge, who, in the meantime, had succeeded the previous judge, evidence was introduced pertaining to 'group sexual activity' on the part of the juvenile defendants, as well as other students of the high school they attended. The psychiatric reports of a Hilo psychiatrist, who had examined the juvenile defendants, were also considered. At the conclusion of the hearing the judge refused to change his predecessor's previously given consent and ordered the juvenile defendants tried as adults. At this stage the appeal taken under Re Castro and Others, 44 Haw. 455, was decided adversely to the juvenile defendants. Upon remand, the grand jury of the circuit court of the third circuit, before a preliminary hearing was had in the district court, returned a true bill charging the juvenile defendants with rape and with assault with intent to rape in alternative counts. This case will be hereinafter referred to as the 'rape' case.
In Criminal Nos. 3239 and 3283: On October 29, 1959, petitions were filed in the juvenile court of the third circuit (Juvenile Nos. 5303, 5465, 5466, 5467 and 5468) alleging the delinquency of five of the six juvenile defendants named in the 'rape' case; the allegations were of sexual acts involving girls other than the one named in the 'rape' case; the charges against them were read on November 2, 1959; the cases were then continued until December 10, 1959, after the petition for rehearing in the 'rape' case had been concluded. At that time counsel for the juvenile defendants urged that they should be handled as juveniles on the same basis and for the same reasons and on the evidence adduced at the rehearing in the 'rape' case. The juvenile court judge dismissed the petitions and consented to the handling of the juvenile defendants as adults under criminal proceedings. 2 A petition for rehearing filed in the juvenile court on December 21, 1959, was denied and the juvenile court judge again ordered the juvenile defendants to be handled as adults under criminal proceedings. These matters were likewise before this court in the appeal taken in Re Castro and Others, supra. Upon remand, the grand jury of the third circuit court returned true bills against the juvenile defendants charging them with sexual intercourse with a female under the age of 16 as follows: In Criminal No. 3239 five of the juvenile defendants (excepting Gilbert Chang) were indicted in connection with sexual relation with a girl other than the one involved in the 'rape' case; in Criminal No. 3283, juvenile defendants Oda and Satake were indicted for sexual involvement with still another girl. Although the juvenile defendants had been under arrest they were not arraigned before a district magistrate nor given an opportunity for a preliminary examination before the above mentioned indictments were returned. These cases will hereinafter he referred to as the 'sex-sixteen' cases.
The motion to dismiss the indictments was on the grounds that (1) the circuit court was without jurisdiction because it had never acquired jurisdiction to try the juvenile defendants under the provisions of Chapter 333, Revised Laws of Hawaii 1955, and (2) the juvenile defendants were each denied their right to preliminary hearings before the grand jury considered the charges brought against them in violation of Rule 5 of the Hawaii Rules of Criminal Procedure and Article I, Section 4 of the Constitution of the State of Hawaii and the Fifth and Fourteenth Amendments to the Constitution of the United States. The specifications of error present these same two broad questions.
At the outset, it is difficult to see that the second question involving the denial of the right to preliminary hearings before a district magistrate in any way affects the power of the grand jury to return the instant indictments. The general rule is that in the absence of a controlling statute a grand jury has the right and power to return an indictment before as well as pending a preliminary examination. 27 Am.Jur. 596, Indictments and Informations, § 13; United States ex rel. Hughes v. Gault, 271 U.S. 142, 46 S.Ct. 459, 70 L.Ed. 875; Ruthenberg v. United States, 245 U.S. 480, 38 S.Ct. 168, 62 L.Ed. 414; Thiede v. Utah, 159 U.S. 510, 16 S.Ct. 62, 40 L.Ed. 237. In other words a preliminary examination is not a prerequisite to the returning of an indictment by the grand jury. 27 Am.Jur., supra. Ruthenberg v. United States, supra; Thiede v. Utah, supra; Cf., State v. Trask and Silva, 45 Haw. 109.
Further, it has been held that there is no constitutional right to a preliminary hearing. United States v. Heideman, D.C., 21 F.R.D. 335, affirmed, 104 U.S.App.D.C. 128, 259 F.2d 943, 945, cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767.
The basic reason for the above rules is set forth in United States v. Slaugenhoupt, D.C., 102 F.Supp. 820, wherein the court, quoting from Barber v. United States, 4 Cir., 142 F.2d 805, stated at page 821:
'The only purpose of a preliminary hearing is to determine whether there is sufficient evidence against an accused to warrant his being held for...
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