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State v. Wong2/22/2002
revented from giving clearly exculpatory evidence was the kind of speculation that other courts have found to be undue interference with the grand jury process. We disagree with the State's arguments.
This court has rejected an approach to claims of prosecutorial misconduct that would require the prosecutor to put before the grand jury "any and all evidence [that] might tend to exculpate the defendant," Bell, 60 Haw. at 243, 589 P.2d at 519, or that would merely tend "to negate guilt," Id. at 247, 589 P.2d at 521, and has concluded a court should dismiss an indictment only when the prosecutor failed to present evidence that "clearly would have negated guilt" or presented evidence that would "undermine the authority of the grand jury to act at all[.]" Bell, 60 Haw. at 247, 589 P.2d at 521 (quoting United States v. Mandel, 415 F.Supp. 1033, 1041-2 (D. Maryland 1976).
In this case, unlike Bell, one witness could provide the evidence concerning whether Stone lied when Stone testified that Okada contacted Stone and told Stone to contact Peters about the possibility of buying apartment 1203. The prosecutor put that witness, Okada, before the grand jury and asked him about when Okada heard about Peters "moving" and "buying" apartment 1203. The prosecutor did not allow Okada to testify about his role in making the availability of apartment 1203 known to Stone and Peters. Okada's testimony would have been the only direct testimony on the subject, it was not in contradiction of Okada's testimony about "moving" and "buying," and it would clearly have negated guilt.
The circuit court did not err when it dismissed the perjury count of the indictment.
E. Remedy
We are mindful that dismissal of an indictment is required only in flagrant cases in which the grand jury has been overreached or deceived in some significant way. State v. Mendonca, 68 Haw. 280, 283, 711 P.2d 731, 734 (1985); State v. Pulawa, 62 Haw. 209, 215-216, 614 P.2d 373, 377-378(1980). The State, citing State v. Scotland, 58 Haw. 474, 572 P.2d 498 (1977) and other cases, argues that if we conclude there was prosecutorial misconduct, the appropriate remedy would be suppression of the evidence, not dismissal of the indictment. We disagree. We have concluded the privileged and bolstered testimony presented by the State and the exculpatory testimony omitted by the State prevented the grand jury from acting fairly and impartially. See Chong, supra, quoting Bell, supra. "If the illegal or improper testimony clearly appears to have improperly influenced the grand jurors despite the presence of sufficient evidence amounting to probable cause to indict the defendant, [the defendant] would be entitled to a dismissal." Scotland, 58 Haw. at 477, 572 P.2d at 499. "Where a defendant's substantial constitutional right to a fair and impartial grand jury proceeding is prejudiced, a quashing of the indictment emanating therefrom is an appropriate remedy." State v. Joao, 53 Haw. 226, 230, 491 P.2d 1089, 1092 (1971).
In State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982) this court held that a trial court's power to administer justice may be properly invoked to dismiss an indictment with prejudice. Our duty to administer justice requires that we invoke that authority here to mandate dismissal of these indictments with prejudice. As the Moriwake court noted:
. . . e are cognizant of the deference to be accorded the prosecuting attorney with regard to criminal proceedings, but such deference is not without bounds. As stated elsewhere: Society has a strong interest in punishing criminal conduct. But society also has an interest in protecting the integrity of the judicial process and in ensuring fa
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