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State v. Wong2/22/2002
of this case, however, our focus is upon whether the State's pre-indictment actions prevented the grand jury from the "exercise of fairness and impartiality" that due process demands. See e.g., State v. Chong, 86 Hawaii 282, 289, 949 P.2d. 122, 129 (1997) (quoting Bell, supra and Joao, supra). The issue that was before the circuit court and that is before this court is whether the indictment should have been dismissed due to prosecutorial misconduct.
The State's arguments that Stone failed to meet his burden of establishing the attorney-client privilege in the post-indictment proceedings are not well taken. Had Stone or the State sought "preliminary judicial inquiry into the existence and validity of the privilege," Sapp v. Wong, 62 Haw. at 38, 609 P.2d at 140, Stone would certainly have borne the burden of showing the attorney-client privilege applied. In other circumstances Stone's failure to assert the privilege before the testimony was presented to the grand jury might have led to a conclusion Stone waived the privilege. The State, however, did not give Stone the opportunity to raise the privilege issue so that a preliminary judicial determination could be made and Frunzi did not raise the privilege issue on Stone's behalf. Instead, the State presented Frunzi's testimony to the grand jury without notice to Stone. In addition, the State presented Frunzi's testimony to the grand jury as privileged testimony to which the crime-fraud exception applied.
When the State called Frunzi as a witness, it elicited testimony from him that Frunzi (1) would "be talking about [Frunzi's] specific representation of client, Jeffrey Stone[,]" (2) that "there ordinarily would be a prohibition from [Frunzi] testifying about those kinds of matters[,]" but (3)that Frunzi could testify "if a crime is committed or to be committed[.]" The State elicited Frunzi's testimony without any distinction as to matters that might or might not be covered by the attorney-client privilege. With regard to the crime-fraud exception, the State's examination emphasized Frunzi's judgment that crimes had been or were to be committed by eliciting from Frunzi his affirmation ". . . that's what [he was] basing ability to testify on today[.]"
The State's emphasis on the extraordinary nature of Frunzi's testimony and its emphasis that Frunzi was testifying under the crime-fraud exception to the attorney-client privilege clearly invaded the grand jury's function of determining whether there was probable cause to believe a crime had been committed by putting before the grand jury the attorney's conclusion that crimes had been or were about to be committed when the attorney was consulted. The State's actions in this regard overreached and usurped the grand jury's function of determining probable cause as to whether a crime was committed, were an egregious disregard of Stone's right to an impartial grand jury, and tainted the grand jury process to such an extent that we cannot say the circuit court abused its discretion when it also dismissed the indictment against the Wong defendants. Having presented Frunzi's testimony without a judicial determination of privilege and having bolstered Frunzi's testimony by characterizing it to the grand jury as privileged testimony subject to the crime-fraud exception to the privilege, the State is in no position to now argue that Stone failed to meet his burden with regard to the existence of the attorney-client privilege.
C. The State improperly presented Aipa's testimony
The State argues that presenting Aipa's testimony to the grand jury did not prejudice defendants' rights to a fair and impartial grand jury; argues that Aipa's testimony did not touch on privilege
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