Territory Hawai`i v. Hayes

• Decision Date: 26 April 1957
• Docket Number: No. 4013.,4013.
• Citation: 42 Haw. 1
• Parties: TERRITORY OF HAWAII v. WALTER LEE HAYES, ALSO KNOWN AS WALTER HAYES BLANTON.
• Court: Hawaii Supreme Court

42 Haw. 1

TERRITORY OF HAWAII

v.WALTER LEE HAYES, ALSO KNOWN AS WALTER HAYES BLANTON.

No. 4013.

Supreme Court of the Territory of Hawai‘i.

Argued April 5, 1957.

Decided April 26, 1957.

RESERVED QUESTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. CARRICK H. BUCK, JUDGE.

Ted T. Tsukiyama, Amicus Curiae (also on the brief), for defendant.

Kenneth W. Harada, Assistant Public Prosecutor, City and County of Honolulu (also on the brief for the Territory; David K. Nakagawa, Deputy Attorney General, with him on the brief), for Joseph C. Harper, Warden Oahu Prison.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

Per Curiam.

Defendant is now imprisoned at the Oahu prison upon conviction of the offense of carnal abuse of a female under twelve years and has been so imprisoned since April 2, 1956. He addressed to the chief justice a petition entitled “Habeas Corpus Petition.” The petition is inartistically drawn and was obviously prepared by defendant personally without assistance of counsel. The pertinent facts are not clearly set forth and are only vaguely referred to. But the complaint is clear. The complaint is that the trial judge refused to permit him to appeal his conviction to this court in forma pauperis and to provide him with counsel and transcript of the trial necessary for his appeal at the expense of the Territory. The chief justice, with the concurrence of the court, treated the petition not as coming within the provisions of the statute relating to habeas corpus proceedings but as coming within section 9603 of the Revised Laws of Hawaii 1945, which provides that this court “shall have the general superintendence of all courts of inferior jurisdiction, to prevent and correct errors and abuses therein where no other remedy is expressly provided by law.” Preliminary to consideration of the petition by this court, the chief justice referred it to the trial judge for certification of pertinent facts and reservation of questions of law raised by such facts.

In response to such reference the trial judge forwarded to this court a statement of facts agreed to by the Territory and defendant. The facts pertinent to the petition are as follows: Defendant was tried in the first circuit court before a jury, which returned a verdict of guilty. He was sentenced to imprisonment for a period not to exceed fifty years. At the trial and at the time of sentence he was represented by counsel of his choice. When the sentence was pronounced, his counsel gave oral notice of intention to sue out a writ of error. However, counsel did not follow up such oral notice with a formal application for writ of error but withdrew from the case, with the approval of the court, because defendant failed to pay in full the fees for services rendered at the trial. Prior to withdrawal, counsel informally inquired of the trial judge whether defendant was entitled under section 10685 of the Revised Laws of Hawaii 1945 to have counsel appointed by the court and to have the cost of the transcript and other costs paid from court funds for the purpose of appeal. The trial judge expressed the opinion that section 10685 would not apply where defendant was represented by counsel of his choice at the trial. After the withdrawal of counsel, defendant sent a friend to the supreme court to file on his behalf two documents, both prepared by him, entitled “notice of writ of error” and “bill of exceptions.” The clerk of the supreme court refused to accept the documents for filing on the ground that they were not in proper form and on the further ground that the required filing fee was not tendered therewith. He suggested that defendant write to the chief justice explaining his financial plight and inquiring about taking a pauper's oath in order to prosecute his appeal. Following such suggestion, defendant addressed a letter to the chief justice in which he made “a pauper's plea for aid in the pursuit of justice” and another letter to the clerk of the supreme court in which he enclosed documents purporting to be a bill of exceptions and an application for a writ of error with the request that if the documents were defective he be “advised of the amendments and procedure necessary to secure the desired action by the appropriate authority.” When he did not receive any answer to the letters, he went to the office of the clerk of the trial judge to take a pauper's oath but was informed that he was not entitled to take such oath because he was represented by counsel of his choice at the trial. He then proceeded to the office of the clerk of the supreme court where he requested the clerk to file his appeal documents and to permit him to take a pauper's oath. The clerk went to the chambers of the chief justice to obtain instruction but the chief justice was absent. In the absence of the chief justice, the clerk informed defendant that he had no authority to grant him permission to take a pauper's oath, that the documents were not in proper form and that they could not be accepted without the prepayment of the filing fee.

Defendant took all of the foregoing steps before the expiration of the statutory period for the filing of an application for writ of error. Upon such facts, the trial judge reserved the following questions to this court:

1. Where a defendant indicted upon a felony charge is not indigent at the time of trial upon such charge, does not request the appointment of counsel for his defense by the circuit court and employs counsel of his own choice to conduct his trial, but then becomes indigent after his conviction on such charge and is not able to obtain counsel for the prosecution of an appeal from such conviction and pay the necessary expense of the preparation of a transcript of the evidence and costs of appeal, do the provisions of section 10685 of the Revised Laws of Hawaii 1945, as amended, upon proper showing of the then indigent condition of such defendant, authorize the circuit court to appoint counsel for such defendant to prosecute an appeal from such conviction and to pay counsel so appointed and all expenses of preparing the necessary transcript of evidence and records for the consideration of the supreme court on appeal, exceptions or writ of error from the appropriation made for the general expenses of such court?

2. If question 1 be answered in the affirmative, would the fee of counsel so appointed to prosecute such appeal be governed, by analogy, by the provisions of section 10685, Revised Laws of Hawaii 1945, as amended, or rest in the discretion of the court?

3. If question 1 be answered in the affirmative, where a defendant after conviction on a felony charge has assets, funds, or available resources, but not sufficient assets, funds, or available resources to procure counsel for the prosecution of an appeal from such conviction and to pay for the expense of preparing the necessary transcript of evidence and expenses of appeal, do the provisions of said section 10685, upon proper showing of the then indigent condition of such defendant, authorize the circuit court to appoint counsel for such defendant to prosecute an appeal from such conviction and to pay counsel so appointed and all expenses of preparing the necessary transcript of evidence and records on appeal from appropriations made for the general expense of such court, without consideration of or requiring the defendant to pay a portion of such expense from any assets, funds, or available resources such defendant may have?

4. With regard to the provisions of sections 9531, 9551 and 9555 of the Revised Laws of Hawaii 1945, were the efforts of defendant–petitioner, as shown by the record, to secure the relief he seeks, timely made?

We answer question 1 in the affirmative. Section 10685 of the Revised Laws of Hawaii 1945 provides for the assignment of defense counsel in a criminal case and the payment of expenses of preparing the necessary transcript of evidence and records on appeal out of the appropriation for the general expense of a circuit court if (a) the case is pending in such court, (b) the case involves a felony, (c) the defendant requests counsel for his defense, and (d) the defendant shows to the satisfaction of the court that he is unable to obtain counsel.

There is no question that a defendant indicted upon a felony charge is entitled to the benefit of section 10685 if he is indigent and requests assignment of counsel prior to his trial. Question 1 presents a situation where a defendant becomes indigent after his trial and requests assignment of counsel, as well as the preparation of transcript of evidence and other records, at court expense, for the purpose of appeal after his conviction but before perfecting his appeal. We do not think that this situation makes a difference in the applicability of section 10685. The statute contains no limitation as to when the request for counsel and proper showing of indigency must be made. The statutory requirement is that such request and showing be made in a circuit court in which the case is pending. A case is pending in a circuit court until a writ of error is issued or the period for the issuance of such writ expires. “It is only when the proceedings for review have been perfected in accordance with the statutory requirements on the subject that the jurisdiction of the trial court ceases and that of the appellate court attaches.” (4 C. J. S., Appeal and Error, § 606.) Also, the statute contains no language which denies the benefit of its provisions to a defendant who had counsel of his choice at his trial. The statute states that when a defendant requests counsel for his defense, such counsel shall be assigned upon a proper showing of indigency. The term “defense” includes the protection of the interest of a defendant not only at his trial but also on appeal. In State v. Hudson, 55 R. I. 141, 179 Atl. 130, the court stated that the defense of a person conceivably may require proceedings beyond the presentation of his...