Bullen v. Derego

724 P.2d 106, 68 Haw. 587, 1986 Haw. LEXIS 105
CourtHawaii Supreme Court
DecidedAugust 22, 1986
DocketNO. 10486; CIVIL NO. 68548
StatusPublished
Cited by3 cases

This text of 724 P.2d 106 (Bullen v. Derego) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bullen v. Derego, 724 P.2d 106, 68 Haw. 587, 1986 Haw. LEXIS 105 (haw 1986).

Opinion

[588]*588OPINION OF THE COURT BY

NAKAMURA, J.

Claiming Police Officers Morris DeRego, Bernard Shigaki, and Raymond Olivera acted in concert to deprive him of “his right to due process of law” and “his right to compulsory attendance of a witness in his behalf at a criminal trial,” Guy C. Bullen brought an action for damages against the officers and the City and County of Honolulu. The action was tried in the Circuit Court of the First Circuit, and the court granted the defendants’ motion for a directed verdict at the close of the plaintiffs case. The plaintiff appeals, but we conclude from a review of the record and the applicable law that a directed verdict was in order.

I.

The plaintiff was arrested on March 31, 1976 for selling heroin to Morris DeRego, then an undercover member of the Honolulu Police Department. The transaction involved an intermediary, James Scott (“Jimbo”), who had been recruited as a government informer by Bernard Shigaki on a promise that criminal charges pending against him would be dismissed if he cooperated in the investigation of drug traffic in Waikiki. The transactions in which “Jimbo” actively participated led to the prosecution of the plaintiff and at least one other person, Michael Peter Stech. See State v. Bullen, 63 Haw. 27, 620 P.2d 728 (1980); State v. Stech, 63 Haw. 34, 620 P.2d 732 (1980).

On April 2, 1976, after charges against the informer were dismissed [589]*589at the instance of the Prosecuting Attorney, DeRego and another police officer escorted Scott to the Honolulu International Airport and gave him money to book passage from Hawaii. They watched as he stood in line to purchase a ticket but left the airport before he went to a boarding area. They did not attempt to ascertain his destination, and Scott’s whereabouts are unknown.

As a consequence of the transaction involving DeRego, Scott, and himself, Bullen was charged with Promoting a Dangerous Drug in the Second Degree in violation of Hawaii Revised Statutes (HRS) §712-1242( l)(c). Prior to trial he unsuccessfully attempted to serve Scott with a subpoena commanding his appearance as a witness. Bullen then moved to have the government produce the informer or dismiss the prosecution, asserting he had been entrapped into committing the offense and Scott was a material witness. The motion was heard and denied by the circuit court.

Bullen was convicted on October 13, 1976 after a jury trial, and he appealed to this court. On December 9, 1980 we ruled that “[wjhere the government chooses to employ an informer in its sponsored enterprise, it must be prepared to supply the defendant with information as to his whereabouts.” State v. Bullen, 63 Haw. at 32, 620 P.2d at 731. “Although we [were] satisfied that the police did not act deliberately and intentionally to render Jimbo unavailable to the defendant,” we nevertheless found “police conduct... made it impossible for the defendant to locate the police informant.” Id. at 33, 620 P.2d at 731. Concluding that the circuit court erred in denying the motion seeking production of the informer or dismissal of the case, we vacated the judgment of conviction and remanded the case for a new trial. And we ruled “the government must either produce Jimbo or risk dismissal of the indictment.” Id., 620 P.2d at 732. The government chose to dismiss the indictment.

The instant civil rights suit was brought a year later. The gravamen of Bullen’s complaint consisted of averments that DeRego, Shigaki, and Olivera “unlawfully denied Plaintiff the right to obtain testimony at his trial from a material witness” and as a consequence he “was denied his right to due process of law” and “his right to compulsory attendance of a witness in his behalf at a criminal trial.” Bullen further alleged the officers acted “under color of rules, regulations, directives, customs, usages, and/or practices of the CITY AND COUNTY OF HONOLULU and statutes of the State of Hawaii” and as a result he “was denied his civil rights in violation of 42 U.S.C. §§ 1983, et seq., and [590]*590Article I, § 2 of the Constitution of the State of Hawaii.” He sought damages for “the loss of his liberty for extended periods of time,” for “the loss of income and wages,” and for “severe emotional and mental distress,” as well as punitive damages, from the police officers and from the City and County of Honolulu.

The action was tried to a jury in November of 1984. At the close of plaintiffs case, the defendants moved for a directed verdict. Finding the officers were “entitled to [a] qualified good-faith immunity defense based upon their reasonable reliance on legal advice and because the state of the law was unclear when Jimbo Scott left the jurisdiction” and the plaintiffs claims were “barred by the statute of limitations, Hawaii Revised Statutes Section 657-7 in particular,” the circuit court granted the motion.1 The plaintiff appeals, but we are convinced from a review of the record that the circuit court did not err in directing a verdict in favor of the defendants.

II.

A.

The plaintiff characterizes his claims against the defendants as “constitutional and civil rights claims” which accrued on December 9, 1980 when we issued our decision in State v. Bullen, supra. More particularly, he maintains he has a cause of action against them because they “unlawfully denied [him] the right to obtain testimony at his trial from a material witness.” In essence, he asserts claims premised on the Sixth Amendment to the Constitution of the United States and article I, section 14 of the Constitution of the State of Hawaii.2 That Guy C. [591]*591Bullen was denied “the right to obtain the testimony of witnesses and to compel their attendance” was, of course, settled in 1980. Id. at 29, 620 P.2d at 729. But in the circuit court’s view the defendants were nonetheless immune from suit in the particular circumstances because of a “reasonable reliance on legal advice and because the state of the law was unclear when [the witness] left the jurisdiction.” True, State v. Bullen was a case of first impression in the annals of this court, and we found “the police did not act deliberately and intentionally to render [the witness] unavailable.” Id. at 33, 620 P.2d at 731. Still, we think there was a more compelling reason for the direction of a verdict in favor of both the individual defendants and the City and County of Honolulu — the independent judgment of a judicial officer of the State broke the “chain of causation” of the harm for which damages were sought.

B.

As we observed, Bullen’s claims for damages are premised on a denial of a “right to obtain testimony” from a material witness. “The principal issue on appeal [in State v Bullen was] whether the trial court erred in denying the defendant’s motion for production of James Scott, also known as Jimbo, ... or, in the alternative, for dismissal of the indictment.” State v. Bullen, 63 Haw at 28, 620 P.2d at 729. Viewing “[t]he right of the accused to present matters in his defense [as] fundamental[],” id.

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Cite This Page — Counsel Stack

Bluebook (online)
724 P.2d 106, 68 Haw. 587, 1986 Haw. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullen-v-derego-haw-1986.