A preliminary hearing is no substitute for an indictment

 State v. Obrero (HSC September 8, 2022)

Background. The prosecution filed six complaints against Richard Obrero including murder in the second degree. Two days later, the prosecution presented evidence before the Grand Jury and a no bill was returned. In other words, there was no probable cause to bring the indictment. Hours later, the prosecution went ahead with the preliminary hearing on the same case with the same facts and this time a judge found probable cause in the district court. Obrero pleaded not guilty at the arraignment and years later moved to dismiss the case on the grounds that no indictment was found in violation of HRS § 801-1. The motion was denied. Obrero appealed and then moved to transfer the case to the HSC.

 

The statutory right to be indicted. Obrero argues that without an indictment, the prosecution violated HRS § 801-1:

 

No person shall be subject to be tried and sentenced to be punished in any court, for an alleged offense, unless upon indictment or information, except for offenses within the jurisdiction of a district court or in summary proceedings for contempt.

 

Murder is a felony and is not in the jurisdiction of the district court nor is it a summary contempt proceeding. The HSC agreed. According to the HSC, “the statute says that if the State wants to subject a criminal defendant to trial and sentencing for alleged offenses other than contempt or those in the jurisdiction of the district court, it must have an indictment or information.” This is plain, unambiguous, and “leaves little room for confusion or doubt[.]”

 

A defendant is “subject to be tried and sentenced” at the arraignment. The only part of the statute that is not all that clear is the phrase “subject to be tried and sentenced.” The HSC recognized that the phrase may mean the start of trial, but it could also mean at an earlier part of the criminal case “where the specters of adjudication and possibly punishment are concrete enough that the defendant is ‘subject to’ them.” The HSC held that the phrase “subject to be tried and sentenced” is at the arraignment. There, according to the HSC, is where the defendant must enter a plea—either guilty and be “subject to be sentenced” or not guilty and be “subject to be tried[.]”

The HSC rejects the prosecution’s argument that HRS § 801-1 has been implicitly repealed. The HSC also took apart the argument that the statute was been implicitly repealed. Repeal by implication arises if the law is either plainly irreconcilable or if “the later act covers the whole subject of the earlier one and is clearly intended as a substitute.” Gardens at W. Maui Vacation Club v. Cty. of Maui, 90 Hawai'i 334, 341, 978 P.2d 772, 779 (1999); Fasi v. City & Cty. of Honolulu, 50 Haw. 277, 285, 439 P.2d 206, 211 (1968) (repeal by implication arises “when it covers the whole subject to which it relates, and is manifestly designed by the legislature to embrace the entire law on the subject”). It is also a statutory construction that is disfavored. Maihai v. Suwa, 69 Haw. 349, 357, 742 P.2d 359, 366 (1987); Furukawa v. Honolulu Zoological Soc’y, 85 Hawai'i 7, 19, 936 P.2d 643, 655 (1997).

 

The HSC rejected the prosecution’s argument that amending Article I, Section 10 in the Hawai'i Constitution to allow preliminary hearings to stand as an alternative to the indictment was repeal by implication of HRS § 801-1. That constitutional provision is not “plainly irreconcilable” and designed to “cover the field.” Moreover, the court rules—HRPP Rules 5 and 7—that regulate the complaint and preliminary hearing process in the district court are rules, not statutes. Court rules cannot “abridge, enlarge, or modify the substantive rights of any litigant.” HRS § 602-11. When court rules “affecting litigants’ substantive rights contravenes the dictates of a parallel statute, the rule must give way.” Cox v. Cox, 138 Hawai'i 476, 482, 382 P.3d 288, 294 (2016).

 

The HSC explained that the Preliminary Hearing Clause establishes a constitutional floor for prosecutions and does not “lay[] down rules by means of which those principles may be given the force of law.” See DW Aina Le‘a Dev., LLC v. State Land Use Comm’n, 148 Hawai'i 396, 403, 477 P.3d 836, 843 (2020). The constitutional provision indeed makes repeal of HRS § 801-1 possible but it did not repeal it outright. The Legislature must act before that can happen:

 

If the Legislature wants to strip people of the grand jury protections afforded by HRS § 801-1, it is free to do so. It may expressly repeal HRS § 801-1. It may pass a law in direct conflict with HRS § 801-1. It may develop a new comprehensive statutory framework controlling initiation of felony prosecutions and indicate that its framework applies “any law to the contrary notwithstanding.”

 

Without the indictment, Obrero’s prosecution must be dismissed. Having held that HRS § 801-1 is not repealed and having held that it was violated here by not having an indictment at arraignment, Obrero’s case must be dismissed. The HSC noted that they “should” be dismissed without prejudice.

 

Justice Nakayama’s Concurrence and Dissent. Justice Nakayama agreed with the result—vacating the denial of the dismissal order and remanding the case back to dismiss the complaint, but for very different reasons.

 

For her, proceeding with the preliminary hearing after the Grand Jury returned a no bill was unconstitutional. Article I, Section 10 identifies three ways a defendant is “held to answer for a capital or otherwise infamous crime”: (1) presentment or indictment of a Grand Jury; (2) probable cause after a preliminary hearing; and (3) upon written felony information. She agreed with the prosecution that a prosecution can be initiated by way of complaint and preliminary hearing.

 

But Article I, Section 10 is silent on whether the prosecution can use multiple methods to initiate a single case. That makes it ambiguous and the Court must determine if this technique was constitutional. League of Women Voters of Honolulu v. State, 150 Hawai'i 182, 192, 499 P.3d 382, 392 (2021). Turning to the history behind the Preliminary Hearing Clause, Justice Nakayama wrote that the method of prosecuting by way of complaint and preliminary hearing was not intended to supersede a Grand Jury indictment. It was meant to be an alternative to the Grand Jury. For her, prosecuting Obrero with a preliminary hearing after the Grand Jury returned a no bill was unconstitutional. It overrides the Grand Jury’s function.

 

Then again, if the prosecution went back to the Grand Jury with more evidence, that would be sufficient. The problem for her arose when the same evidence is presented. “Permitting prosecutors to present an identical case to different grand jury panels until one grants the desired indictment would undermine the purpose of an protections provided by the grand jury. . . . As such, in my mind, the State may return to the grand jury to seek an indictment of Obrero, but prosecutors must present new evidence that was not presented to the prior panel that had not returned a true bill to obtain a constitutionally valid indictment.” Justice McKenna joined the concurrence.

 

As for the majority’s analysis, she “wholeheartedly” joined the Chief Justice’s dissent and agreed that the Preliminary Hearing Clause implicitly repealed HRS § 801-1.

 

The Chief Justice’s Dissent. Chief Justice Recktenwald agreed with the prosecution that Article I, Section 10 repealed by implication HRS § 801-1. Delving into legislative history of HRS § 801-1 and the history behind the Preliminary Hearing Clause, the Chief Justice believed that the constitutional provision was intended to create an alternative to the Grand Jury indictment. According to the Chief Justice, the Preliminary Hearing Clause is self-executing—contrary to the majority’s opinion. There was enough of a well-developed body of law around preliminary hearings before the Clause was promulgated for him to believe it was supposed to take immediate effect without implementing legislation. Thus, the Chief Justice believes that HRS § 801-1 directly contradicts Article I, Section 10. “The fact that the legislature neglected to take an obsolete statute off the books should not be allowed to defeat the intent of the framers” of the Preliminary Hearing Clause. That is why he dissented. Justice Nakayama joined.