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State v. Wong2/22/2002
d matters; argues that if Aipa's testimony was privileged, the privilege belonged to the Estate, not to Peters; and argues the Estate waived any privilege it might have had by disclosing the communications to others. Additionally, the State again argues that "notice and judicial preclearance are not prerequisites for presenting testimony from an attorney to a grand jury" and opines that the circuit court could not require the prosecutor to preclear Aipa's testimony under the circuit court's general supervisory powers over the grand jury. We disagree.
Unlike a federal grand jury, a Hawaii grand jury is a constituent part of the court or branch of a court having general criminal jurisdiction. In re Moe, 62 Haw. 613, 616, 617 P.2d 1222, 1224 (1980); Cf. United States v. Williams, 112 S.Ct. 1735, 1742, 504 U.S. 36, 37 (1992) (the federal grand jury "belongs to no branch of the institutional government"). The circuit court has supervisory power over grand jury proceedings to insure the integrity of the grand jury process and the proper administration of justice. Moe, 62 Haw. at 616, 617 P.2d at 1224. The circuit court properly exercised its supervisory authority, upon dismissing a prior indictment, when it gave the State clear direction that a judicial determination of privilege was necessary before attorney testimony could be presented to the grand jury. The State ignored that clear direction and presented Aipa's testimony without notice to Peters and without seeking a judicial determination about attorney-client privilege.
The State's attorney was duty bound to comply with the circuit court's requirement unless and until the requirement was overruled by a court of competent jurisdiction. Instead, the State ignored the circuit court's requirement and put before the grand jury attorney testimony that had not been reviewed for the existence and validity of the attorney-client privilege as required by the rules of evidence, see discussion at III. A. above, and the circuit court's order. Finding that the State had presented attorney testimony to the grand jury in violation of the court's clear order and concluding that disregard of its clear order warranted dismissal, the circuit court exercised its supervisory powers and dismissed the indictment.
The circuit court did not make a finding that violation of its order resulted in actual prejudice to Peters, but actual prejudice is clearly shown by the record. The State's presentation of Aipa's testimony clearly induced an action other than that which grand jurors in uninfluenced judgment would have deemed warranted on evidence fairly presented to them. See State v. Joao, 53 Haw. 226, 229, 491 P.2d 1089, 1091 (1971). When presenting Aipa's testimony regarding the McKenzie Methane investment, the prosecutor presented testimony showing only that the trustees requested and were advised about the ethical propriety of investing in projects related to the Estate's investments in McKenzie Methane; that it might be a breach of trust for a trustee to invest in an investment related to the Estate's investment; and that Peters had invested in McKenzie Methane. The limited testimony the State elicited from Aipa left the impression that Peters' investment in the McKenzie Methane matter was a breach of trust. The testimony at the hearing on the motion to dismiss, however, revealed that outside counsel opined the trustees and the employees of the Estate were not ethically prohibited from investing in another McKenzie Methane investment and the trustees and employees, including Peters, complied with the legal advice they received from outside counsel. In short, Aipa's less than complete grand jury testimony regarding McKenzie Methane wrongfully implied that Peters
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