ICA: Grand Jury Counsel Misconduct Could Trigger Dismissal of Indictment (just not in this case)

State v. Griffin (ICA November 22, 2011)

Background. Darnell Griffin was charged with murder in the second degree and sexual assault in the first degree. On September 5, 1999, Evelyn Luka went out to her regular nightspot, the Venus Nightclub on Kapiolani Boulevard. Her husband, Kevin, stayed home. The Lukas agreed that she would be home by midnight. At around midnight, Luka called Kevin and told him that she was staying an hour longer and was going to get a ride home with a friend from Salt Lake. Venus employees remember seeing a woman matching her description there, and recalled that she left at around midnight with an African-American man in a dark green Nissan Pathfinder. Luka never came home. Kevin called Venus several times, but they ignored his call.

The next morning, at around 8:00 a.m., a commuter on the H-2 near the Ka Uka Boulevard on-ramp saw something on the side of the road near the on-ramp. The commuter and two off-duty police officers went to the area and found a woman lying face down on the ground convulsing. She had a hard time breathing and trembling. She was taken to the hospital. Before leaving, the police saw an African-American man near the area standing outside of his vehicle. Before they approached him, he went into his car and drove off.

Doctors found evidence of sexual abuse, but an examination showed no scarring, bruising, or discoloration around her genitals. They found no sperm on her body either. Luka was in a coma and taken off life support, and the murder investigation began.

The case drew no leads and went cold for two years. Detective Sunia took over the case submitted samples taken from Luka's body for DNA analysis. The DNA showed spermatozoa from an unidentified male. The sample was put onto a general DNA database. Months later, the DNA database indicated that the sample identified Griffin. Det. Sunia learned that in 1999, Griffin owned a 1996 Nissan Pathfinder. Griffin was arrested in 2007. At the police station, an officer overheard him talking to his wife. He was heard saying to his wife to "clean the car, clean the car."

The Grand Jury Hearing. At the grand jury hearing, Det. Sunia testified. A juror asked her when Griffin was first interviewed by the police. The prosecutor stopped the questioning and said that the grand jury counsel should answer that question. The grand jury counsel arrived and jurors started to ask when the police started questioning Griffin and wondered why they did not test the DNA back in 1999. The grand jury counsel was unsure, but told the jury that there was a newspaper article about the case. As for not testing the DNA in 1999, the grand jury counsel speculated that DNA was not available until much later. Counsel also mentioned that sex offenders are required to put their DNA in a database. Finally, counsel commented that based on the newspaper article, Griffin was not a suspect until the DNA match came up. "The reason why it's interesting is because of the DNA situation that allows them to take these cold cases and bring them back to life."

The grand jury wanted to know how they managed to identify Griffin as a suspect after several years of no leads. The grand jury counsel again speculated that "[t]hey must have had some other evidence that I'm not aware of. I don't know what they've told you but they must have had some evidence back in 1999 when this girl was found[.]"

The discussion about whether Griffin was an original suspect in 1999 continued, and the grand jury counsel mentioned the newspaper article again. Counsel told the grand jury that DNA "brings about the ability to close cases that have been considered" cold.

When Det. Sunia got back on the stand, the grand jury asked her what made Griffin a suspect. Det. Sunia said that HPD kept a "general data base" with unknown DNA evidence taken from Luka's body. After vigilant checking and comparing, it came up with a potential suspect, Darnell Griffin. The grand jury indicted Griffin with murder in the second degree and sex assault in the first degree.

Griffin filed a motion to dismiss the indictment based on misconduct not on the part of the prosecutor, but the grand jury counsel. The circuit court noted the dearth of case law on the standards for grand jury counsel, applied the standard used for prosecutorial misconduct at a grand jury proceeding, and denied the motion.

Pre-Trial Motions and Trial. Griffin filed a motion seeking to use evidence of Luka's extramarital affair and promiscuity to show that Griffin did not cause her death, that any sexual contact was consensual, and to undermine Kevin Luka's credibility. The prosecution filed a motion seeking to keep that evidence out. The circuit court granted the prosecution's motion thereby denying Griffin's. At trial, Griffin was convicted of murder in the second degree and acquitted of sexual assault. His motion for acquittal based on a lack of evidence was denied. The circuit court sentenced Griffin to life in prison without the possibility of parole. He appealed.

The Independent Grand Jury Counsel. "Whenever a grand jury is impaneled, there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought before it." Haw. Const. Art. I, Sec. 11. The grand jury counsel is "unique in American jurisprudence for there is no comparable provision in either the federal or other state constitutions." State v. Kahlbaun, 64 Haw. 197, 200, 638 P.2d 309, 313 (1981). Grand jury counsel is not an advocate for the accused. State v. Hehr, 63 Haw. 640, 641, 633 P.2d 545, 546 (1981). It was intended to "ensure an independent grand jury and to relieve the prosecutor of the conflicting burdens of presenting evidence in support of the indictment and advising the grand jury on matters of law[.]" Id. at 641, 633 P.2d at 546-47. Counsel serves "to receive inquiries on matters of law sought by the grand jury, conduct legal research, and provide appropriate answers of law." HRS § 612-57.

Prosecutorial (and other kinds of) Misconduct Before the Grand Jury. "[A]n indictment that is the result of prosecutorial misconduct or other circumstances which prevent the exercise of fairness and impartiality by the grand jury may be successfully attacked." State v. Chong, 86 Hawai'i 282, 288-89, 949 P.2d 122, 128-29 (1997). There are not a lot of cases addressing the independent grand jury. However, there are many cases addressing when prosecutorial misconduct before the grand jury warrants the dismissal of an indictment. Nonetheless, the ICA held that allegations of misconduct by the grand jury counsel fall under the "other circumstances" that prevent the grand jury's ability to be fair and impartial and can be attacked.

The New Standard: Misconduct by the Grand Jury Counsel. The ICA noted that in prosecutorial misconduct cases, the burden is on the defendant to show the misconduct, State v. Pulawa, 62 Haw. 209, 214, 614 P.2d 373, 376 (1980), and saw "no compelling reason to change who shoulders the burden for motions to dismiss based on grand jury misconduct."

The ICA adopted a new standard in examining grand jury counsel misconduct: "to warrant dismissal of an indictment, a defendant must show that the grand jury counsel's misconduct has clearly infringed upon the grand jury's decision-making function and invaded the province of the grand jury, and that the misconduct tended to induce action other than that which reasonable grand jurors, in their uninfluenced judgment, would deem warranted based on the evidence fairly presented to them." The ICA adopted this standard in light of grand jury counsel's authorized role and function.

Grand Jury Counsel was Improper, but not Prejudicially so. The ICA held that the circuit court did not err in denying Griffin's motion to dismiss. Even though grand jury counsel kept mentioning the newspaper article that was not presented at the hearing, the ICA found no prejudice because "this fact was already known to at least one juror." And even though grand jury counsel referred to the sex offender DNA database, he did not know if that was the case here. Finally, the grand jury counsel said that he did not know if there was enough evidence to accuse Griffin or not in 1999. The ICA acknowledged that these statements were indeed improper, but they were not prejudicial because they did not invade the province of the grand jury.

The Impropriety . . . The ICA held that the grand jury counsel's comments were improper. "While better left unsaid, the statements were either regarding matters already known to the grand jurors or were clarified so that it was made clear the [grand jury counsel] was not stating a fact in Griffin's case[.]" This implies that if there were facts that were not known to the jurors or if it was not clear that the grand jury counsel was stating a fact, it could have arisen to prejudicial impropriety.

But the ICA did not really make it clear why these comments by grand jury counsel were improper. The grand jury counsel is there to advise the grand jury on its legal questions. For example, grand jury counsel is often called upon to inform jurors about the elements of an offense or something like that. It is not designed to be an expert juror commenting on the evidence presented, which is what this grand jury counsel appeared to be doing.

Evidence of Prior Sexual Behavior does not Show that Another Could have Killed her. Griffin also argued that the circuit court erred in prohibiting him from using evidence that Luka had extramarital affairs and stayed out late at nightclubs. Griffin argued that this evidence was relevant because it would have shown that other persons could have killed her. The ICA rejected his argument. When presenting evidence that another person was motivated to commit the crime, "there must be some nexus between the proffered evidence and the charged crime" as well as "substantial evidence tending to directly connect that [other] person with the actual commission of the offense." State v. Rabellizsa, 79 Hawai'i 347, 350, 903 P.2d 43, 46 (1995). The ICA held that Griffin did not present any evidence, let alone "substantial evidence," linking any other person to Luka's death.

The Other Issues. Griffin contended that the admission of his conversation with his wife about cleaning the car was irrelevant and, if relevant, too prejudicial under Hawai'i Rules of Evidence (HRE) Rules 401 and 403. The ICA held that this was not plain error (Griffin did not object at trial). According to the ICA, this evidence was relevant because it showed some consciousness of guilt, not prejudicial, and not plain error (Griffin did not object at trial). Finally, the ICA rejected Griffin's claim that there was insufficient evidence to convict him of murder in the second degree. Although there was conflicting evidence, there was substantial evidence supporting the verdict viewed in the light most favorable to the prosecution. State v. Eastman, 81 Hawai'i 131, 135, 913 P.2d 57, 61 (1996).


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