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State v. Chong11/25/1997
OPINION OF THE COURT BY LEVINSON, J.
The defendant-petitioner-appellee Damien Chong has applied for a writ of certiorari from the decision of the Intermediate Court of Appeals (ICA) in State v. Chong, 86 Haw. 290, 949 P.2d 130 (Haw. Ct. App. 1997) [hereinafter, the "ICA's decision"], which reversed the circuit court's order granting Chong's motion to dismiss the indictment against him. Put simply, the issue presented is whether the prosecution's use of pre-scripted questions and answers in connection with its grand jury witnesses is so innately prejudicial that the practice -- in and of itself -- violates a defendant's right to due process of law by invading the province of the grand jury or tending to induce action other than that which the grand jurors, in their uninfluenced judgment, deem warranted on the evidence fairly presented before them.
Citing Hawai'i Revised Statutes (HRS) §§ 602-59(b)(1) and (2) (1993), Chong has asserted in his application that the ICA's decision "contains 'grave errors of law and fact ' and 'obvious inconsistencies' with 'that of the supreme court' . . . in State v. Joao, 53 Haw. 226, 491 P.2d 1089 (1971)," and that "the magnitude of these errors 'dictates the need for further appeal.'" Because "the legislative history of HRS § 602-59 makes clear that we have the authority to consider any issues that arise in this case," State v. Bolosan, 78 Haw. 86, 89, 890 P.2d 673, 676 (1995), we granted Chong's application in order to address his assertion.
I. BACKGROUND
We need not regurgitate in detail the facts and circumstances underlying the present appeal because they are more than adequately set forth in the ICA's decision. See ICA's decision at 2-7, 22-26. For present purposes, it is sufficient to note that, in the course of the hearing on Chong's motion to dismiss the indictment,
the deputy prosecutors' testimonies established that the [prosecution] had prepared the witnesses who testified before the grand jury by providing them with a list of questions that a deputy prosecutor expected to ask them, along with the witnesses' anticipated answers, excerpted from the witnesses' own prior statements or reports. It was also the [prosecution's] practice to include [-] with the questions and answers [-] instructions for each witness to look over the predicate questions and answers and note any necessary corrections to the predicate answers. Witnesses were never told to memorize the predicate answers and testify accordingly. Rather, they were instructed to tell the truth.
According to the deputy prosecutors, the [prosecution] provided the grand jury witnesses with the predicate questions and answers for several reasons: (1) to prepare witnesses for the case by focusing them on the questions and those prior statements, which, in the prosecution's view, were necessary to show probable cause; (2) to determine from the witnesses whether the answers, as excerpted, were correct; and (3) to keep the grand jury proceedings focused on the key issues so that the proceedings could be handled as quickly and efficiently as possible.
The deputy prosecutor who prepared the predicate questions and answers testified that "the answers that we send to the witnesses we get . . . from the reports that we receive. . . . Everything that we get is directly from the witnesses' reports or from talking to the witnesses. And that's what I did in this case[.]" The deputy prosecutors testified that grand jury witnesses who were given the predicate questions and answers
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