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State v. Schmidt5/12/1989
The issue in this appeal is whether the trial court's exclusion of the Deputy Public Defender from the courtroom during the impaneling of the Kauai Grand Jury violated the statutory provisions governing impanelment and warranted dismissal of the indictment against the Defendant. We conclude that the closing of the courtroom during the impanelment of the grand jury constituted a substantial violation of the statutory procedures and that such violation was presumptively prejudicial to the rights of the Defendant. We therefore affirm the lower court's dismissal of the indictment.
I.
On January 7, 1988, Deputy Public Defender James Jung entered the courtroom during the impaneling of the 1988 Kauai Grand Jury while prospective jurors were being questioned concerning their qualifications. Upon noticing the presence of Mr. Jung, the Deputy Prosecuting Attorney approached the bench and requested that Mr. Jung be removed during the impaneling proceedings. The court then ordered Mr. Jung out of the courtroom over his objection. The only persons allowed to remain in the courtroom during the impaneling proceedings were the prospective grand jurors, the judge, the court clerk, court reporter, and the prosecutor.
Subsequently, on February 21, 1988, Defendant Marion Schmidt was indicted by the Kauai Grand Jury for Promoting Prison Contraband in the First Degree in violation of Hawaii Revised Statutes (HRS) § 710-1022(1)(b). Defendant moved to dismiss the indictment on May 9, 1988 on the ground that the grand jury was improperly impaneled. The circuit court entered an order dismissing the indictment on May 24, 1988, holding that the exclusion of the Deputy Public Defender during the impaneling of the Kauai Grand Jury was a substantial failure to comply with the statutory requirements of the impaneling process. The State appeals.
II.
A.
We first consider the State's contention that the lower court's order dismissing the indictment should be set aside because the findings of fact and conclusions of law are not supported by substantial evidence in the record. The State argues that the court relied on items which were not submitted into evidence during the hearing on the motion to dismiss indictment, in particular the transcript of the proceedings of impaneling of the 1988 Kauai Grand Jury on January 7, 1988. An uncertified copy of the transcript was proffered to the court as an exhibit to Appellee's motion to dismiss the indictment and as such was made a part of the record on appeal.
We find that the trial court was entitled to consider the facts contained in the transcript even though it was not formally entered into evidence. The accuracy of the transcript has not been challenged by the State either in the court below or on appeal. See HRS § 641-16 (1985). Indeed, in the State's "Motion in Opposition to Dismiss Indictment" filed in the court below, as well as in oral argument on the motion to dismiss, the Prosecuting Attorney conceded that the Public Defender was ordered out of the courtroom during the impaneling proceedings, as described in the transcript.
Moreover, Hawaii Rules of Appellate Procedure Rule 10(b)(2) provides:
If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.
Thus, the burden was on the State to produce a transcript of the impanelment proceedings in order to support
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