Petition — Pulawa v. Hawaii

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OF THE

MICHAEL RODAK, JR., CLERK

United States

OcToBER TERM, 1977

—_——

————_

No @7-1197

Witrorp K. Purawa, Sr., also known as Nappy

Pulawa; Arvin Grorce Kaonu; Rosert R.

Wison, also known as Bobby Wilson;

DANNETTE BEIRNE LEoTA, also known

as Sister and Henry JAMES HANALFI

Hora, also known as

Henry W. Huihui,

Petttioners,

Mere

| Srate or Hawan,

<i _ Respondent.

— ——

PETITION FOR A WRIT OF CERTIORARI

to the Supreme Court of the State of Hawaii

———=

Davin C. ScHUTTER,

888 Mililani Street,

Honolulu, Hawaii 96813,

Attorney for Petationers

Pulawa and Kaohu.

Brook Hart,

735 Bishop Street, Suite 433,

Honolulu, Hawaii 96813,

Attorney for Petitioners

Huthui, Leota and Wilson.

— — —} — ——————

— OO

————

PERNAU - WALSH PRINTING CO. - 562 MISSION STREET . GAN FRANCISCO, CA 94105

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I. The opinion of the Hawaii Supreme Court attempts to

II.

circumvent the constitutional question presented by

this case and vitiates the protections afforded by the

Fifth Amendment Double Jeopardy Clause of the

United States Constitution; it fails to protect the

Petitioners against a second trial caused by prose-

eutorial negligence amounting to prosecutorial mis-

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The standard regarding the degree of prosecutorial

misconduct or negligence sufficient to bar retrial is

uncertain; consistency and certainty within the Crim-

inal Justice System requires clarification and guidance

by the United States Supreme Court ...............

Table of Authorities Cited

Cases _Pages

Ancient Egyptian Arabic Order of Nobles of the Mystic

Shrine v. Michaux, 279 U.S. 737, 49 S.Ct. 485, 73 L.Ed.

ee GD pd nnnddecepedlGaensanbecarsebeseucasesas 9

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20

a CE vcs cceaseciechdbedoddeedaddeieus es 1l

Giglio v. United States, 405 U.S. 150 (1972) ............. 10

Green v. United States, 355 U.S. 185, 78 S.Ct. 221, 2 L.Ed.

Pt drnsceedessuseudsstnesedaedbanesenetcs 9

Mullaney v. Wilbur, 421 U.S. 684 (1975) ................ 9

Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct.

Se ae Se SE ED nc cncvntacdeacéiweeoscecte 9

United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47

ET SED euil's 66 Naweeedes ohne ERE ORSdebe 9

United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.

Be MED Sccddintn sus opiate cihndidadidtins cutidhs 10

United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976) ... 10

United States v. Martin, 561 F.2d 135 (8th Cir. 1977) .... 10

Constitutions

United States Constitution:

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Hawaii Constitution, Article One ...........ccccccccccces 4

Statutes

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Rules

Hawaii Rules of Civil Procedure, Rule 52 ................ 8

Iu the Supreme Court

OF THE

Rnited States

OctToBER TERM, 1977

No.

WitForp K. Puiawa, §r., also known as Nappy

Pulawa; ALVIN GrorcGE KaoHuvu; Rosert R.

Wus0n, also known as Bobby Wilson;

DANNETTE BEIRNE LEoTA, also known

as Sister and HENRY JAMES HANALEI

HvrHul, also known as

Henry W. Huihui,

Petitioners,

vs.

Strate or Hawan,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Supreme Court of the State of Hawaii

The petitioners, and each of them, respectfully pray

that a writ of certiorari issue to review the judgment

and opinion of the Supreme Court of the State of .

Hawaii entered in this proceeding on September 29,

1977, rehearing denied on December 6, 1977.

2

' OPINION BELOW

The published opinion of the Hawaii Supreme

Court is attached hereto as Appendix A. The un-

published decision and amended order of the Circuit

Court of the First Circuit, State of Hawaii, regard-

ing petitioners’ motion to dismiss on Double Jeopardy

grounds are attached hereto as Appendix B. The

order and the unpublished oral opinion of the Cireuit

Court of the First Circuit, State of Hawaii, dismiss-

ing the conspiracy counts and declaring a mistrial are

attached hereto as Appendix C. The unpublished

opinion of the Hawaii Supremé Court denying re-

hearing is attached hereto as Appendix D.

JURISDICTION

The judgment of the Hawaii Supreme Court was

entered on September 29, 1977 and rehearing was de-

nied on December 6, 1977. The order remanding the

matter for trial was filed on January 7, 1978. The

Court’s jurisdiction is invoked under 28 USC

§1257(3).

QUESTION PRESENTED

Does the Double Jeopardy Clause of the Fifth

Amendment prevent retrial of the petitioners after

their original trial ended in a mistrial caused by

gross prosecutorial negligence ?

3

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

STATEMENT OF THE CASE

I. Judicial Proceedings

The petitioners were indicted on February 13, 1974

for the crimes of murder, kidnapping and conspiracy

to commit murder and conspiracy to commit kidnap

ping.’ The jury trial of petitioners 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 grounds that prosecution

was barred by the statute of limitations; the prosecu-

tion had presented no evidence to support a con-

spiracy to commit the substantive crimes within the

period permitted by the statute of limitations. At

‘Specifically, all of the petitioners were with conspiracy

to commit the murders and kidnappings of ont Constancio

Nery and Dennis Masaichi Tha, while the actual murders and

kidnappings were attributed to individual petitioners as perpe-

trators, principals and accessories.

4

that same time, the court declared a mistrial on the

counts of murder and kidnapping essentially on the

ground that the prosecution’s conduct had resulted

in the admission of evidence in support of the con-

spiracy counts which had prejudicially and incurably

infected the proceedings. (Appendix C)

Defense counsel filed a motion to bar retrial and

to dismiss the remaining charges on the ground that

retrial would be in violation of the Double Jeopardy

Clause of the Fifth Amendment to the United States

Constitution, the Fourteenth Amendment to the

United States Constitution, and Article One of the

Hawaii Constitution. The trial court at that time

stated that the prosecution had been “negligent

amounting to misconduct,” which petitioners assert

as tantamount to gross negligence, in the preparation

and presentation of the case against petitioners. The

trial court therefore granted the motion as to peti-

tioners Pulawa and Kaohu; but the motion was de-

nied as to petitioners Huihui, Leota and Wilson on

the ground that they had consented to the mistrial.

Over 3 years later, the Hawaii Supreme Court, on

September 29, 1977, reversed the trial court’s ruling

as to petitioners Pulawa and Kaohu and affirmed as

to petitioners Huihui, Leota and Wilson. The case

was remanded for retrial as to all petitioners,

Il. Facts of the Proceedings

The prosecution presented no evidence of a con-

spiracy to commit the substantive crimes charged

falling within the statute of limitations. (Appendix

C). At the time of indictment the prosecution was

aware that the statute of limitations had run on the

conspiracy counts and that they had no evidence to

support an attempt to conceal any such conspiracy.’

Even so, conspiracy was charged enabling the State

to present highly prejudicial and incompetent evi-

dence in the nature of hearsay and double hearsay

suggesting that petitioners were key figures in organ-

ized crime in Hawaii and had actually participated

in at least 3 other murders and numerous illegal

*Deputy Prosecutors Weight and Halstead drafted the indict-

ment and Deputy Prosecutor Grean presented the State’s case

to the jury. The following statements are from the transeript on

the motion to dismiss.

p. 646 [Weight] ah

A. My best recollection is that I was aware that there

was the statute of limitations question and that we discussed

it.

Q. By “we discussed it,” who did you discuss it with?

A. Douglas Halstead and myself.

p. 695 [Halstead]

Q. But whether you and Mr. Weight discussed this

problem with other men or women in the officeo——

A. I didn’t.

p. 714 [Halstead]

Q. Did you have any evidence other than silence in the

two year period before February 13, 1974 to bring into the

courtroom?

A. No specific overt acts.

p. 717 [Grean]

Q. Did you and Mr. Weight discuss the case?

A. I don’t believe so.

p. 718 [Grean]

A. The only time I became familiar with the statute of

limitations in connection with this case was when it was

raised by Mr. Hart [defense co-counsel], and, at the end of

trial. That is when it first dawned on me.

p. 719 [Grean}

A. At the time [of mistrial declaration] I didn’t par-

ticularly care whether the statute of limitations had run or

not.

6

transactions, including gambling and extortion.’ Pre-

trial discovery was extremely limited in the State’s

favor and petitioners reasonably assumed the State

would produce evidence in support of the conspiracy

SSee transcript of June 21 and 24:

Handa—State witness on direct exam.

pp. 104-105

A. It was about February, I don’t remember the date

but only I know Harry Otake was killed a few weeks after.

Q. " And you mentioned Harry Otake?

A. Yes.

2. Is the date before or after Harry Otake’s death?

B 137- 138 (re: conversation with a defendant)

A. I said I don’t have $20,000, but if you don’t have

the $20,000, you better get the hell out of here, this Island.

A. If you don’t have the $20,000, well, Mr. Pulawa says,

we still keep running gambling game, you are going to pay

me $200 a week

pp. 172-173

A. Well, since 1970 I gambling, running, you know,

gamblings game and between four years’ time a lot of people

get killed and still paying dues for these people so I make

up my mind tell ’em the Court the truth what happens in

1970 my apartment.

Q. You mentioned a couple of gamblers that were killed?

A. Yes.

Q. you remember their names?

[objections]

See Transcript of July 1 and 2:

Ryder—State witness on direct exam.

p. 15

A. Yeh. We all left the same time. Then we got out

there, we driving towards Mokuleia, by the quarry. Then

Nappy said, we put ‘em over here where the Pake stay,

meaning Francis Young. He’s buried out there some place.

Q. How do you know that?

A. Because him and Henry did it.

p. 65

—_ It’s when they had the State Fair, when Miranda got

killed.

Q. Now, what was the purpose of getting together?

A. Going move on the Orientals; take away all the——

control all the gamblings and everything illegal in the State.

[objections]

7

charge. Defense counsel’s numerous objections to the

admission of the prejudicial evidence were overruled,

as the evidence was considered by the court to be

relevant to the charged conspiracy counts. .

When the trial court dismissed the conspiracy

counts it raised sua sponte the contamination of the

evidence issue.* The prejudice to petitioners was ob-

vious and defense counsel did not oppose the court’s

suggestion that a mistrial was necessitated. In its

opinion on petitioners’ motion to bar retrial, the trial

court specifically cited prosecutorial misconduct as

the ultimate reason for the mistrial. (Appendix B).

Thus, petitioners’ constitutional right to a fair trial

by that particular tribunal was thwarted by the pros-

ecution’s gross negligence, resulting in unnecessary

suffering, anguish, expense, and delay on the part of

petitioners.

The Hawaii Supreme Court, in order to avoid the

constitutional question, construed its own Rules of

Procedure,’ and recharacterized the trial court’s find-

‘See Transcript of July 8-10, 11.

566

p.

The Court: Mr. Grean, assuming that the Court grants

the motion relating to the statute of limitations and throws

out the conspiracy charges, what does that do to the State

of the evidence?

Mr. Grean: Nothing.

The Court: Why not? Much of the evidence that was

brought in was based on the conspiracy and the evidentiary

conspiracy.

‘Hawaii Rules of Civil Procedure, Rule 52, states:

Findings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity

of the trial court to judge of the credibility of the witnesses.

At the hearing on the motion to dismiss the trial judge

heard the testimony of 3 deputy prosecutors and determined

8

ings, labeling the issue as one of evidence. (Appendix

A). In addition, it ruled that the prosecution’s con-

duct was simply negligent and that the hearsay and

double hearsay evidence was admissible regardless.

Petitioners contend that this transparent attempt to

circumvent their constitutional rights must be aborted.

REASONS FOR GRANTING THE WRIT

I. The opinion of the Hawaii Supreme Court attempts to cir-

cumvent the constitutional question presented by this case

and vitiates the protections afforded by the Fifth Amendment

Double Jeopardy Clause of the United States Constitution;

it fails to protect the Petitioners against a second trial caused

by prosecutorial negligence amounting to prosecutorial mis-

conduct.

II. The standard regarding the degree of prosecutorial miscon-

duct or negligence sufficient to bar retrial is uncertain; con-

sistency and certainty within the Criminal Justice System

requires clarification and guidance by the United States

Supreme Court.

The Hawaii Supreme Court, without declaring the

trial court’s findings “clearly erroneous” as required

by its own Rules of Procedure,’ found the prosecu-

tion merely negligent and, as an afterthought, ruled

that the prejudicial evidence was admissible anyway,

thereby coloring the constitutional double jeopardy

issue as mere evidentiary misunderstanding. It is

from that testimony that there had been gross prosecutorial

negligence. While Rule 52 is a civil rule, its application

should extend to criminal proceedings where an evidentiary

hearing is held and findings of facts based thereon are

issued by the judge.

*Id.

9

clear that such an obvious subterfuge by a State

court to deny a constitutional right by interposing a

nonfederal ground without fair support will not be

tolerated by this Court. Radio Station WOW v.

Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092

(1945) ; Ancient Egyptian Arabic Order of Nobles of

the Mystic Shrine v. Michaux, 279 U.S. 737, 49 S.Ct.

485, 73 L.Ed. 931 (1929). See also: Mullaney v. Wil-

bur, 421 U.S. 684 (1975).

In examining the facts of this case, the underlying

policy of the Double Jeopardy Clause is of utmost

importance. The State with great power and re

sources should not be allowed to make repeated at-

tempts to convict a person for an alleged offense,

thereby subjecting him to embarrassment, expense

and ordeal and compelling him to live in a continu-

ing state of anxiety and insecurity, as well as en-

hancing the possibility that even though innocent he

may be found guilty. Green v. United States, 355

U.S. 185, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

The petitioners herein were indicted over four years

ago and are presently facing a new trial for the same

offenses.

While this Court has made a distinction between

mistrials granted sua sponte and those at defendant’s

request, petitioners claim that the Double Jeopardy

Clause bars retrial in their case since the underlying

prosecutorial error was “. . . motivated by bad faith

or undertaken to harass or prejudice the defendant.”

United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct.

1075, 47 L.Ed.2d 267 (1976). Mere negligence on the

10

part of the prosecutor will not activate a defendant’s

Double Jeopardy rights to bar retrial, but it is clear

that where prosecutorial overreaching is present, the

interest protected by Double Jeopardy outweighs so-

ciety’s interest in conducting a second trial. United

States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27

L.Ed.2d 543. (1971); United States v. Kessler, 530

F.2d 1246, 1255-56 (5th Cir. 1976).

Therefore, the inquiry must center on the prosecu-

tor’s conduct. The prosecutor’s office is an entity and

has a heavy burden to insure communication of rele-

vant information. Giglio v. United States, 405 U.S.

150, 154 (1972). Negligence is apparent in their total

failure to uphold that burden, but to what degree?

Did the prosecutor’s conduct constitute gross negli-

gence amounting to prosecutorial overreaching de-

signed to harass the petitioners?

In Unted States v. Martin, 561 F.2d 135 (8th Cir.

1977), the Eighth Circuit Court of Appeals made it

clear that gross negligence on the part of the prosecu-

tion could be just as detrimental to the defendant’s

rights as intentional misconduct. In Martin the

prosecution introduced prejudicial grand jury testi-

mony which included improper comments by the

prosecution and the grand jurors. The facts in the

instant case are even more compelling in that, in

essence, the improper comments were accusations of

murder. A more evident attempt by the prosecution

to unfairly prejudice a defendant would be difficult

to imagine. See United States v. Martin, supra, at

140.

11

The record in the case could not be more indicative

of such gross negligence absent an admission of in-

tent by the prosecutor. The prosecution was aware of

and displayed a total lack of concern for the fact that

the statute of limitations had run on the conspiracy

counts. In fact, the State introduced highly preju-

dicial evidence citing the conspiracy as the foundation

for its admission, insinuating that petitioners were

responsible for at least three other murders and

numerous extortions. In addition, the prosecution’s

reckless conduct resulted in a severe tactical dis-

advantage to petitioners; for example, the conspiracy

counts rendered a Bruton motion useless, Bruton v.

United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d

476 (1968).

The prosecution’s overzealous effort to convict the

petitioners by introducing unrelated criminal activity

with the implication that petitioners were responsible

was predicated on the conspiracy charges which were

absolutely invalid, and which the prosecutors knew

were invalid. The record is the best evidence of the

prosecution’s gross negligence which was paramount

to an intentional disregard for the law and for the

rights of petitioners.

CONCLUSION

Accordingly, this Court should grant certiorari in

order to affirmatively respond to the needs of the fair

administration of criminal justice in this country. In

12

view of the presentation set forth above, we respect-

fully submit that this petition for writ of certiorari

is meritorious and should be granted.

Respectfully submitted,

Davin C. ScHUTTER,

Attorney for Petitioners

Pulawa and Kaohu.

Brook Hart,

Attorney for Petitioners

Huihui, Leota and Wilson.

February, 1978.

(Appendices Follow)

Appendices

Appendix A

In the Supreme Court of the State of Hawaii

October Term 1976

State of Hawaii,

Plaintiff-Appellant,

vs.

Wilford K. Pulawa, Sr., also known as

Nappy Pulawa, and Alvin George

Kaohu,

Defendants- Appellees.

and

State of Hawaii,

Plaintiff-A ppellee,

vs. .

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. :

[Filed Sep. 29, 1977]

Appeal from First Circuit Court

No. 5917

No. 5923

Honorable Walter M. Heen, Judge

ii

RicHarpson, C.J., KopayasHi, Oaata,

MENoR and KiIpwELL, JJ.

Former Jeopardy—mistrial—defendant’s consent—

manifest necessity

Where a mistrial is declared without the con-

sent of the defendant, and there is an absence of

manifest necessity for the mistrial, a retrial will

be barred by double jeopardy.

Same—same—same—judicial or prosecutorial error

Where the defendant moves for or consents to

a mistrial, even though the consent is neccssitated

by judicial or prosecutorial error, the barrier to

reprosecution is ordinarily removed.

Same — mistrial — defendant’s motion — judicial or

prosecutorial overreaching

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 de-

fendant’s constitutional right to a fair trial, and

such bad faith conduct has resulted in serious

and incurable prejudice to the defendant, re-

prosecution will be barred.

Conspiracy—evidence—admissibility

A conspiracy may always be shown as an evi-

dentiary fact to prove participation in the

substantive crime, and a formal charge in the

indictment is not a necessary predicate to the ad-

sii

missibility of facts and circumstances showing

the existence of a conspiracy to commit the prin-

cipal offense charged.

Same—same—same—declarations of co-conspirator

The prosecution is entitled to adduce evidence

of declarations made by a co-conspirator pur-

suant to and in furtherance of the conspiracy,

and such declarations are admissible against the

other conspirators.

Same—same—same—judicial discretion

The reception of evidence touching upon the

existence of conspiracy is necessarily subject to

the exercise of sound judicial discretion.

Per Curiam. On February 13, 1974, the defend-

ants were indicted for the crimes of kidnapping, con-

spiracy, and murder. Specifically, the indictment

charged that the defendants had conspired with one

another to kidnap Dennis Masaichi Iha and to mur-

der Lamont Constancio Nery and Dennis Masaichi

Tha, and that they did in fact kidnap Lamont Con-

stancio Nery and Dennis Masaichi [ha and did in

fact murder Lamont Constancio Nery and Dennis

Masaichi Iha. Mr. Brook Hart represented defend-

ants Huihui, Leota, and Wilson. Mr. David Schutter

represented defendants Kaohu and Pulawa.

The trial of the defendants before a jury com-

menced 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

iv

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 mo-

tion to dismiss the remaining charges in the indict-

ment, on the ground that a retrial would constitute

double jeopardy, in violation of Article I of the Ha-

waii Constitution, and in violation of the Fifth and

Fourteenth Amendments to the United States Con-

stitution, 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 mis-

trial. The arguments proposed by counsel for

those defendants when the Court raised the ques-

tion of mistrial indicates clearly that the defend-

ants did not merely consent to, but urged the

mistrial upon the Court. The mere written ree-

ord 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 situa-

tion. 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 mis-

v

trial indicate quite strongly that more positive

evidence of consent is required. There is insuffi-

cient showing of consent by those defendants

indicated in this case. Therefore, as to the de-

fendants 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 (1824); United States v. Jorn, 400

U.S. 470 (1971); HRS §701-110(4). At issue ini-

tially, 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 testify-

ing 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

vi i

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,’ was heard on July 10, 1974, after the State

had rested its case. Mr. Schutter argued for the mo-

tion 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

1The following are excerpts from the transcript of the proceed-

ings of July 10, 1974:

THE COURT: Very well. Who is going to argue first?

Mr. Schutter or Mr. Hart?

MR. SCHUTTER: Well, we have three motions, Your

Honor.

THE COURT: We'll get to that after we find out which

one of you is going to argue first.

MR. HART: Well, it would depend on which motion the

eourt——

THE COURT: I see. All right. Which motion, well, let’s

take the motion for mistrial first then.

MR. SCHUTTER: In connection, Your Honor, with the

motion for a mistrial, I simply note for the record that we

have filed a written motion for mistrial on the heels of a

number of oral requests therefor, on July 2, 1974. That

motion incorporated a memorandum and point of authorities

and Exhibit A, that at the same time we filed that’s entitled

Supplemental Memorandum in Support of the Motion for

Mistrial, and Exhibit A, thereto.

* oe * e

MR. SCHUTTER: ... We would submit the motion for

mistrial based on that record.

THE COURT: Mr. Hart, you are not arguing on this

motion? You’re joining——

MR. HART: I join Mr. Schutter’s motion. I see no

reason to repeat his argument.

vii

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 +hat 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.’ Hay-

ing moved for a mistrial, and the trial court having

considered their request and declared a mistrial, de-

fendants 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 (1975) ; People v. Kelly, 132 Cal.

App. 118, 22 P.2d 526 (1933).

*MR. HART: .. . Our position on that thing, Your

Honor, is the jury has been unfortunately and unnecessarily

infected with all that evidence and no instruction from the

court could cure such a thing, and the court would have to

declare a mistrial. It’s as th we tried the

of the case and found that the case we tri

case had no business being there in the first place; that the

government had no business charging them and as a result

it’s a do over.

. o * o

MR. SCHUTTER: Your Honor, had there been no con-

spiracy charged, many of the hearsay statements offered in

evidence by the prosecution, hearsay statements ts primarily

made by one defendant—I don't believe there is any evi-

dence in the casc that anybody else ever said

all of the evidence is things said by Mr. Pulawa, would not

have been admissible in any way, shape or form, under any

theory against my other client, Mr. Kaohu, or against any

of Mr. Hart’s three clients.

Furthermore, the record shows that after the decla-

ration of mistrial and before the jury was discharged,

the State moved to be allowed to take an interlocu-

tory 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 mo-

tion and urged instead that the jury should be

discharged. Thereupon the court denied the State’s re-

quest 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 con-

sent 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 reprose-

cution is ordinarily removed; United States v. Dinitz,

424 U.S. 600 (1976); United States v. Jorn, supra;

United States v. Kessler, 530 F.2d 1246 (5th Cir.

1976) ; United States v. Jamison, 505 F.2d 407, 410

(D.C. Cir. 1974). This principle is consistent with

the double jeopardy consideration that the defendant

should “retain primary control over the course to be

followed in the event of such error.” Id. at 609. 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 deci-

sion 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 as-

sumed to remove any barrier to reprosecution,

even if the defendant’s motion is necessitated by

prosecutorial or judicial error. 400 U.S. at 485.

However, where the defendant’s mistrial motion is

the necessary response to judicial or prosecutorial

misconduct designed to avoid an acquittai, or is neces-

sitated by deliberate misconduct which has for its

intended purpose the denia! of the defendant’s consti-

tutional right to a fair trial, reprosecution will be

barred. United States v. Dinitz, supra; United States

v. Jorn, supra; United States v. Kessler, supra, A

basic policy underlying the Double Jeopardy Clause

is to relieve the defendant of the substantial burdens

imposed by multiple prosecutions. United States v.

Dinitz, supra. Accordingly, where the defendant is

provoked by judicial or prosecutorial overreaching

into requesting a mistrial and his motion is granted,

he may not be retried for the same offense. Id. This

result will necessarily obtain where the bad faith con-

duct charged has seriously and incurably prejudiced

xX

the defendant in his defense. See United States v.

Kessler, supra.

Having determined that all of the defendants con-

sented to the declaration of m strial, we now reach

the crucial issue of whether there was prosecutorial

overreaching in this case, If there was, and serious

and incurable prejudice to the defendants was its

logical concomitant, then the motion to dismiss should

have been granted for all defendants and not only

as to defendants Pulawa and Kaohu.

The thrust of the defendants’ allegations of prose-

cutorial overreaching is that the State exercised bad

faith in charging them with conspiracy; that as a

proximate result of the State’s conduct they were

seriously prejudiced in their defense to the remain-

ing counts of the indictment, inasmuch as certain

prejudicial evidence adduced before the jury would

not have been allowed by the court in the absence

of the formal charges of conspiracy.’

We have examined the record, including the tran-

script of the proceedings in the circuit court, and

*The trial court apparently accepted the view of the defendants

that the presence of a conspiracy charge in the indictment, or the

absence thereof, was material to the question of admissibility:

There is also a growing body of thought in the field of

criminal law that the charge of conspiracy, brought together

with other charges of substantive crimes, gives to the gov-

ernment an advantage over the defendants which is unfair

in the extreme. This is because, in particular, that on the

basis of a conspiracy charge a statement made by one de-

fendant can be used against other defendants who are

alleged to be part of the conspiracy. It should be noted here

that this is precisely what happened in the case at bar. All

of the testimony indicated that all incriminating statements

were made by defendant Pulawa.

xi

have come to the conclusion that there was no prose-

eutorial overreaching in this case. The prosecution

obviously erred in its assessment of the evidence avail-

able to support the formal charges of conspiracy.

This error was compounded by its faulty interpre-

tation of the applicable statute of limitations. But

there was no deliberate misconduct in the charging of

the conspiracy offenses. At worst, there might have

been prosecutorial negligence involved.‘ But simple

negligence falls far short of the prosecutorial over-

reaching requisite to the imposition of the double

jeopardy prohibition to a retrial. Muller v. State,

478 P.2d 822 (Alaska 1971) ; United States v. Beasley,

479 F.2d 1124 (5th Cir.) cert. denied 414 U.S. 924,

reh. denied 414 U.S. 1052 (1973).

The defendants take the position that the State at-

tempted deliberately to gain an unfair trial advantage

by formally charging them with conspiracy. But the

rule is that a conspiracy may always be shown as

an evidentiary fact to prove participation in the sub-

stantive 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

*When ruling upon the motion for mistrial, the court made

the following finding:

The evidence adduced at the hearings on Defendants’

motion indicates clearly that there was prosecutorial negli-

gence in preparing the indictment and in pre-trial prepara-

tion, in that there was little, if any, communication within

the prosecutor’s office regarding the theories of the deputies

who prepared the indictment and the evidence to support

the inclusion of the conspiracy charges. The ultimate result

of this prosecutorial negligence was that there was no

attempt during trial even to introduce evidence showing

a continuing conspiracy.

xii

conspiracy to commit the principal offense charged.

The law is clear in this regard. See Territory v.

Blackman, 32 Haw. 460, 464-466 (1932); State v.

Yoshino, 45 Haw. 640, 372 P.2d 208 (1962) ; Territory

v. Goto, 27 Haw. 65 (1923); 16 Am.Jur.2d, Con-

sptracy, § 37. The charges of conspiracy in this case

were directed towards the substantive crimes for

which the defendants were also charged in the indict-

ment. It would make no difference, therefore, on the

question of evidentiary admissibility whether or not

conspiracy to commit these particular offenses was

formally charged.

The prosecution is generally entitled to show the

entire history of a conspiracy to commit crimes, in-

cluding the substantive crimes charged, from the time

of its inception until its consummation. Territory v.

Blackman, supra; Territory v. Kitabayashi, 41 Haw.

428, 434-436 (1956). It is entitled to adduce evidence

of declarations made by a co-conspirator pursuant to

and in furtherance of the conspiracy. Such declara-

tions are admissible against the other conspirators.

State v. Yoshino, 45 Haw. 206, 364 P.2d 638 (1961) ;

Territory v. Blackman, supra; Territory v. Kitabay-

ashi, supra. Defendant Pulawa’s declarations fall into

this category.

The evidence of which the defendants complain was

not limited to the formal charges of conspiracy. If

admissible, it was admissible both as to the charges

of conspiracy and as to the substantive crimes

charged. We have examined the record, and while we

are not called upon to decide the propriety of the

separate evideutiary rulings of the trial court, we are

constrained to observe that much of this evidence was

admissible with respect to the substantive crimes

charged. The reception of evidence touching upon the

existence of a conspiracy is necessarily subject to the

exercise of sound judicial discretion. Territory v.

Goto, supra. If error was committed in the reception

of certain of the evidence, it was judicial error. There

was no judicial overreaching in this case, and none

has been charged.

The amended order denying the motion to dismiss

the charges against defendants Huihui, Leota, and

Wilson is affirmed, and that part of the order grant-

ing the motion to dismiss the indictment against de-

fendants Pulawa and Kaohu is reversed. Remanded.

/s/ William 8. Richardson

/s/ Bert T. Kobayashi

/s/ Thomas 8S. Ogata

/s/ Benjamin Menor

/s/ H.B. Kidwell

Roy Chang, Deputy Prosecuting Attorney (George

Yamamoto, Deputy Prosecuting Attorney, on the

briefs) for plaintiff-appellant, cross-appellee

Brook Hart for defendants-cross-appellants, Huihui,

Wilson and Leota

David C. Schutter for defendants-appellees Pulawa

and Kaohu

xiv

Appendix B

In the Cireuit Court of the First Circuit

State of Hawaii

Or. No. 46476

State of Hawaii, )

vs.

Wilford K. Pulawa, Sr., also known as Nappy

Pulawa, Alvin George Kaohu, Robert R. Wil-

son, also known as Bobby Wilson, Dannette

Beirne Leota, also known as Sister, and Henry

James Hanalei Huihui, also known as Henry

W. Huihui,

ie

Defendants.

Z

[Filed Jun. 2, 1975]

AMENDED ORDER

Based upon the decision heretofore rendered on

Defendants’ Motion to Dismiss, it is hereby order that

all charges herein against the defendants Wilford K.

Pulawa, Sr. and Alvin George Kaohu be and they are

hereby dismissed.

Said defendants will be discharged and all bail or

bond cancelled.

xv

The Motion to Dismiss on behalf of defendants

Robert R. Wilson, Dannette Beirne Leota, and Henry

James Hanalei Huihui is denied.

Dated: Honolulu, Hawaii, June 2, 1975

/s/ Walter M. Heen,

Judge of the Above Entitled Court

DECISION

Defendants’ motion to dismiss raises the question

whether another trial of the kidnapping and murder

charges still pending against them would be in viola-

tion of the Constitutional prohibition against double

jeopardy.

Defendants contend that inclusion of the conspiracy

charges in the indictment was a ploy by the Govern-

ment to support evidence otherwise inadmissible. This,

defendants argue, was prosecutorial misconduct which

created the necessity for the declaration of mistrial by

this Court on July 11, 1974.

The Government’s theory in preparing the indict-

ment that there was a continuing conspiracy was ex-

tremely tenuous in light of the evidence known to the

Government at that time. The other theory of the

Government resulted from a negligent reading of the

statute of limitations and lack of knowledge of the

existence of a substantive crime of “compounding.”

The evidence adduced at the hearings on Defend-

ant’s motion indicates clearly that there was prose-

cutorial negligence in preparing the indictment and

in pre-trial preparation, in that there was little, if

xvi

any, communication within the prosecutor’s office re-

garding the theories of the deputies who prepared

the indictment and the evidence to support the in-

clusion of the conspiracy charges. The ultimate re-

sult of this prosecutorial negligence was that there

was no attempt during trial even to introduce evi-

dence showing a continuing conspiracy.

There is a growing body of law to the effect that

prosecutorial negligence can be as damaging to the

defendants’ rights to a fair trial as deliberate prosecu-

torial action and that such negligence should be con-

sidered as prosecutorial misconduct.

There is also a growing body of thought in the field

of criminal law that the charge of conspiracy, brought

together with other charges of substantive crimes,

gives to the government an advantage over the defend-

ants which is unfair in the extreme. This is because,

in particular, that on the basis of a conspiracy charge

a statement made by one defendant can be used

against other defendants who are alleged to be part

of the conspiracy. It should be noted, here, that this

is precisely what happened in the case at bar. All of

the testimony indicated that all incriminating state-

ments were made by defendant Pulawa. It is now

being considered in many legal circles that there

should be a complete elimination of the conspiracy

charge. There is also a line of thought which indi-

eates that one day in the not too distant future the

Supreme Court will strike down the use of conspiracy

charges for the purpose of introducing out-of-court

statements by one defendant against the others. This

*e

is for the reason that the alleged co-conspirators have

thus been deprived of their right to cross examina-

tion, guaranteed by the U. 8S. Constitution.

On the basis of the evidence produced at the hear-

ings on defendants’ motion to dismiss, and on the

entire record the Court finds that the necessity to de-

clare a mistrial at the close of the government’s case

was caused by the prosecutor’s actions in the case. The

Court further finds that such action was prosecutorial

misconduct.

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 there was consent

to the declaration of the mistrial. The arguments pro-

posed 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. Therefore, as to

those defendants Huihui, Wilson and Leota the mo-

tion to dismiss will be denied.

Insofar as the defendants Pulawa and Kaohu are

concerned, we are faced with another situation. Coun-

sel 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 re-

garding mistrial indicate quite strongly that more

positive evidence of consent is required. There is in-

sufficient showing of consent by those defendants indi-

eee

cated 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 constitu-

tional prohibition against double jeopardy. Therefore,

the charges will be dismissed as to defendants Pulawa

and Kaohu.

Appendix C

In the Circuit Court of the First Circuit

State of Hawaii

Cr. No. 46476

State of Hawaii, ;

vs.

Wilford K. Pulawa, also known as Nappy

Pulawa, Alvin George Kaochu, Robert R.

Wilson, also known as Bobby Wilson, Dan-

nette Beirne Leota, also known as Sister, and

Henry James Hanalei Huihui, also known as

Henry W. Huihui,

Defendants. ;

1&I1II: Kidnapping

II, V,& VI: Conspiracy 1°

IV: Accessories before the fact

VII: Murder 1°

VIII & IX: Principals to murder 1°

[Filed Jul. 15, 1974]

ORDER GRANTING MOTION TO DISMISS AS

TO COUNTS II, V & VI; GRANTING MOTION

FOR MISTRIAL; AND DEEMING MOTION

IN LIMINE MOOT

The prosecution having rested its presentation of

evidence and its case in the above-entitled cause on

xx

Monday, July 8, 1974, and counsel for the defendants

having urged various motions, and the Court having

heard oral argument thereon on Wednesday, July 10,

1974, and having rendered its oral ruling thereon on

Thursday, July 11, 1974, and good cause having ap-

peared therefrom,

It Is Hereby Ordered granting the Motion to Dis-

miss as to Counts II, V & VI on the ground and for

the reason that prosecution under such counts is

barred under the statute of limitations, as more fully

set forth in the oral ruling of the Court on July 11,

1974; and

It Is Further Ordered granting the motion of coun-

sel for the defendants for a mistrial for the reasons

set forth in the Court’s oral ruling of July 11, 1974;

and

It Is Further Ordered deeming the Motion in Li-

mine filed by counsel for the defendants seeking to

limit cross-examination of the defendants as moot in

light of the orders set forth above, and the Court

therefore declines to rule thereon.

Dated: Honolulu, Hawaii, July 12, 1974

. /3/ Walter M. Heen,

Judge of the Above-Entitled Court

I do hereby certify that this is a full, true, and cor-

rect copy of the original on file in this office.

H. Seto

Clerk, Cireuit Court, First Circuit

State of Hawaii

Exhibit A

[106] (Court recessed at 2:58 p.m.)

Thursday, July 11, 1974.

8:47 a.m. Session.

THE CLERK: Criminal 46,476, State of Hawaii

versus Wilford K. Pulawa, Alvin George Kaohu, Rob-

ert R. Wilson, Dannette Beirne Leota, and Henry

James Hanalei Huihui, defendants. Ruling on motion.

THE COURT: The record will show the presence

of all counsel and all of the defendants. The record

will also show the jury is not present.

The court has examined the authorities cited by

both prosecution and defense in this particular case,

and has arrived at the following determinations:

The motions for directed verdict as to each count

are all denied. However, with respect to Count Two

of the indictment, Count Five and Count Six of the

indictment, these related to the conspiracy charges,

the court finds that the indictment, the prosecution

was commenced beyond the two-year statutory limi-

tation provided in the Hawaii Revised Statutes and

beyond the three-year statute of limitation provided

for in the Hawaii Penal Code. Under either, the

Penal Code or the Hawaii Revised Statutes, the pros-

ecutions are barred. While there may be some argu-

ment as to whether or not there is waiver in this case,

the court does not feel that the arguments have any

merit.

[107] As stated in Waters versus United States,

328 Fed Second 739, at 742, this statute of limitations

**

as found in the revenue laws is inconsonance with the

policy with policy of repose that is fundamental to

our society and our criminal laws. At 743, the court

goes on to say society is likely to be healthier on the

whole if an individual suspected of a non-capital of-

fense is either charged within, is charged, is either

charged within a specified time or else is relieved of

the never ending possibility of public accountability

for an accusation arising out of the long ago. Un-

like the statute of limitations in civil cases, it is not

a mere limitation upon the remedy but a limitation

upon the power of the sovereign to act against the

accused.

The court goes on to say; again, if recognition of a

distinction between the statute of repose in civil cases

and the substantive bar in criminal cases is to have

any meaning in the administration of criminal justice,

the statute of limitations must be held to affect not

only the remedy but to operate as a jurisdictional

limitation of the power to, upon the power to prose-

cute and punish. In People versus McGee, 36 Pacific

Second at 378, the California court said, in our view

the more desirable rule is that the statute is jurisdic-

tional, and that an indictment or information which

shows on its [108] face that the prosecution is barred

by limitations fails to state a public offense. The point

may therefore be raised at any time, before or after

judgment.

Court again points out the distinction between the

statute of limitations as it applies to civil cases and

criminal cases,

ere

It follows that where the pleading of the State

shows that the period of the statute of limitations has

run, and nothing is alleged to take the case out of

the statute, for example, that the defendant has been

absent from the state, the power to proceed in the case

is gone.

Court therefore rules that Counts Two, Five and

Six will be dismissed by virtue of the court lacking

jurisdiction to proceed. The government not having

authority to proceed with prosecution in this case.

This leaves us with Counts One, Three, Four,

Seven, Eight and Nine. These relate to the alleged

crimes of kidnapping and murder. The evidence

which was proquced by the government and admitted

in the course of the trial contains testimony and

other evidence relating to not merely the counts that

remain in the indictment but to the conspiracy counts

and further to the so-called evidentiary conspiracy

which is argued by the prosecution. Having now dis-

missed or ordered the conspiracy counts to be dis-

missed, we are then faced with the problem of [109]

instructing the jury as to what parts of the evidence

they may consider for the substantive charges that re-

main and what parts of the evidence they must disre-

gard, in order to arrive at their decision and verdict.

As the court stated briefly yesterday, it is doubtful

that even the court or the court together with counsel

could arrive at any kind of decision as to what parts

of the evidence would be considered or could be con-

sidered by the jury in determining the outcome of

xxiv

the case, and the court does not feel that this problem

can be overcome by any kind of curing instruction.

Therefore the court is compelled, regrettably, to

grant the motion for mistrial, to order that the case

shall be retried at a later time.

Court is aware of the time and the expense that

has gone into the case to this point but fairness to

the government, fairness to the defense and justice

for all concerned in the community requires that the

motion for mistrial be granted.

Therefore the motion will be granted with respect

to Counts One, this is the motion for mistrial, Counts

One, Three, Four, Seven, Eight and Nine.

Now, the jury is not here this morning, gentlemen.

They have been, as you know, notified to report at

1:30 this afternoon. They will come in, the [110]

court will convene and we will then discharge the

jury.

Any questions ?

MR. GREAN: We take exception to the court’s

ruling, Your Honor, based on the case authority, we

feel certainly supports bringing in evidence of the

conspiracy even though it is not charged.

THE COURT: Exception is noted. Court will

stand at recess.

(Court recessed at 8:58 a.m.)

I, AILEEN N. SYLVA, official court reporter,

Circuit, Court, First Judicial Cireuit, do hereby cer-

tify the foregoing to be a full, true and correct tran-

script of my original shorthand notes reported in the

above entitled matter on July 10 and 11, 1974, before

the HONORABLE WALTER M. HEEN, Twelfth

Judge presiding.

/s/_ Aileen N. Sylva

Appendix D

In the Supreme Court of the State of Hawaii

October Term 1977

State of Hawaii, )

Plaintiff-A ppellant,

vs.

Wilford K. Pulawa, Sr., also known as

Nappy Pulawa, and Alvin George

Kaohu,

Defendants-Appellees.

and

State of Hawaii,

Plaintiff-A ppellee,

vs.

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-A ppellants. :

[Filed Dee. 6, 1977]

No. 5917

No. 5923

PETITION FOR REHEARING

RicHarpson, C.J., KOBAYASHI, OGATA,

MENoR and KipwELL, JJ.

Per Curiam. The petition for rehearing is denied

without argument.

/s/ William 8. Richardson

/s/ Bert T. Kobayashi

/s/ Thomas 8. Ogata

/s/ Benjamin Menor

/s/ H.B. Kidwell

David C. Schutter

and Brook Hart

for the petition.