Chung v. Lanham

500 P.2d 565, 53 Haw. 617, 1972 Haw. LEXIS 158

• Court: Hawaii Supreme Court
• Decided: August 17, 1972
• Docket: No. 5322
• Status: Published

Opinions

OPINION OF THE COURT BY

KOBAYASHI, J.

The petitioner, the prosecution in the case in chief, filed a Petition for Writ of Prohibition seeking an order prohibiting the respondents, John C. Lanham, Judge of the First Circuit Court, and Gilbert Enos, also known as Gilbert K. K. Enos, and Florendo S. Guillermo, also known as Florendo Guillermo, defendants in the case in chief, from taking any steps in the enforcement of the Order Granting Discovery and Inspection, dated July 12, 1972.

An order to show cause and temporary writ of prohibition was issued by this court on July 20, 1972. A show cause hearing was held on July 27, 1972.

FACTS

Respondent Guillermo filed a motion for discovery and inspection in the trial court and respondent John C. Lanham ordered the prosecution to furnish to Guillermo’s attorney the following:

1. Copies of all written or oral, but recorded, statements, admissions or confessions made by the defendant and co-defendant, whether signed or unsigned, to police officers and all other persons;

2. A list containing the names and addresses of all persons known to the government who were witnesses to the making of any statement, admission or confession by the defendant;

3. A list containing the names and addresses of all persons known to the government to have information relevant to the crime charged, except privileged informers;

4. Copies of the record of any prior criminal convictions of the defendant, if the police refuse to furnish the same to the defendant or his attorney;

5. Any additional material or information which may be exculpatory in nature within the meaning and intent of Brady v. Maryland, 373 U.S. 83 (1963); and

6. An inventory of everything which was taken from the defendant and co-defendant during and after the time of arrest in the above-captioned matter.

The petitioner does not contest paragraphs 2 and 4 of respondent Lanham’s order. Neither does he contest the following portions of respondent Lanham’s order, to-wit:

A. Paragraph No. 1:

Copies of all written or oral, but recorded, statements, admissions or confessions made by defendant Guillermo, whether signed or unsigned, to police officers.

B. Paragraph No. 6:

An inventory of everything which was taken from the defendant during and after the time of arrest.

'ISSUES

The petitioner does contest the remaining parts of respondent Lanham’s order which we will take in seriatim:

We are of the opinion that a permanent writ of prohibition must issue on the remaining portions of paragraph No. 1 to which petitioner has objected.

Under a strict construction of the Hawaii Rules of Criminal Procedure we are of the opinion that the defendant in a criminal case is not entitled to enjoy a “fishing expedition” and “pick over the prosecution’s files”.

HRCrP 17(h) (1) reads as follows: “No statement or report in the possession of the State which was made by a government witness or prospective government witness (other than the defendant) to an agent of the government shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial.”

The rule is crystal clear and does not permit either by subpoena, discovery or inspection the divulging of co-defendant’s statements, admissions or confessions made to police officers (especially under the posture of the instant case) or to “all other persons”. The rule does not permit either by subpoena, discovery or inspection the divulging of defendant’s statement, admissions or confessions to “all other persons” as ordered by respondent Lanham.

An order of production by the trial judge is proper only if it meets the following requirement of HRCrP 17(h) (2):

“After a witness called by the State has testified on direct examination, the court shall, on motion of the defendant, order the State to produce any statement (as hereinafter defined) of the witness in the possession of the State which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.”

Limitation thereof is clearly stated in HRCrP 17(h) (3) and the word “statement” of a witness is defined in HRCrP 17(h) (5).

Thus HRCrP 17, read as a whole, strictly limits the trial court’s power to prescribe a broad order of production, discovery and inspection against the prosecution.

The question of severance has been raised prematurely by respondent Lanham and has no efficacy in the instant case.

B. Paragraph No. 3:

A writ of prohibition must issue on the total of paragraph No. 3.

Respondent Lanham explains his reasons for granting paragraph No. 3, to-wit: “[S]o that we may get the whole truth before the Court. . . . This is so he (the defendant) may investigate the affairs of the case . . . .”

It is commendable and necessary that the court gets the “whole truth” but that principle cannot be allowed to be a vehicle wherein the prosecution is required, in essence, to investigate and prepare defendant’s case besides its own case. The court’s order, herein, is so overly broad that we are unable to find any principle of law that can give sanction to such an order. The prosecution is placed under an unbearably weighted scale of justice.

C. Paragraph No. 5:

Petitioner’s objection to paragraph No. 5 is not well taken. Though the phrasing of paragraph No. 5 in the use of the words “may be” exculpatory in nature by respondent Lanham appears on the surface to broaden the scope of Brady v. Maryland, 373 U.S. 83 (1963), the paragraph definitely is restricted to the “meaning and intent of’ Brady, supra, and no more. See Moore v. Illinois, 40 U.S.L.W. 5071 (U.S. June 29, 1972).'

D. Paragraph No. 6:

The writ of prohibition must issue and the petitioner is not required to supply to respondent Guillermo “an inventory of everything which was taken from the co-defendant during and after the time of arrest”.

Douglas L. Halsted, Deputy Prosecuting Attorney, for petitioner. Robert Jaress, Deputy Attorney General, for respondent Judge Lanham. Charlotte Libman, Deputy Public Defender, for respondent Guillermo.

Respondent Guillermo has failed to show the materiality of such an inventory in the defense of the charge existing against him. HRCrP 16.

The petition of the prosecuting attorney will be granted in accordance with this opinion. An order conforming with this opinion will be issued directing Judge Lanham to set aside his order of July 12, 1972.