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State v. Moriwake

June 30, 1982

STATE OF HAWAII, PLAINTIFF-APPELLANT,
v.
GILBERT MASARU MORIWAKE, DEFENDANT-APPELLEE



Appeal from First Circuit Court; Honorable Bertram T. Kanbara, Judge; Criminal No. 53140.

Richardson, C.J., Lum and Nakamura, JJ., and Retired Justices Ogata and Menor, Assigned Temporarily. Opinion of the Court by Richardson, C.J.

Richardson

The question on appeal is whether an indictment for manslaughter was properly dismissed with prejudice following two hung jury mistrials on the charge. Appellant State of Hawaii ("State") argues that constitutional principles of double jeopardy posed no bar to further prosecution, and that the trial court abused what the State agrees was the court's inherent power to preclude further prosecution in such circumstances. While the double jeopardy proscriptions of our federal and state constitutions did not themselves bar continued prosecution, we affirm because we do not view the trial court's action to have been an unjustified exercise of implicit powers.

I.

On July 31, 1979, Gilbert Masaru Moriwake was indicted for manslaughter. The indictment charged that "[o]n or about the 12th

day of May, 1979, in the City & County of Honolulu, State of Hawaii, . . . [Moriwake] did recklessly cause the death of Ruby Scanlan by beating her [with his hands and feet], thereby [violating HRS ยง 707-702(1)(a) (1976)*fn1] . . . ."

A three-day jury trial was had in February 1980. Moriwake apparently did not deny the homicide, but instead defended against the manslaughter charge on the ground that his state of mind with regard to Scanlan's death did not constitute recklessness due to extreme intoxication at the time.

Following approximately ten hours of deliberation on the charge, the jury informed the judge that it could not reach a verdict. The judge, after questioning the jury regarding whether and how the deadlock might be broken, concluded that the jury was at an impasse and declared a mistrial sua sponte.

Three months later, Moriwake was again brought to trial for manslaughter. Although before a different judge and jury, the three day jury trial was essentially the same as the first trial with regard to the evidence presented, the witnesses testifying and the legal theories argued.

Four communications from the jury to the judge during the jury's subsequent deliberation on the charge reflected its inability to reach a verdict. After rereading instructions, providing the jury with copies of certain instructions and questioning the jury, the judge concluded that the jury was at a impasse and declared a mistrial sua sponte.

Soon thereafter, Moriwake moved that his indictment for manslaughter be dismissed. In an order filed July 22, 1980, the trial court granted Moriwake's motion.*fn2 The order does not set forth the bases for the trial court's decision, but the transcript of the hearing on Moriwake's motion includes the following statement by the judge:

There have been two trials in this case entailing essentially the

same evidence. And if there were a third trial, virtually the same evidence would very likely be presented. Both of these previous instances, there were hung juries. And the court feels that under the circumstances of this case, a third trial would pose an undue emotional, personal and financial hardship on the defendant.

Of course, if this were a situation entailing, say, murder for hire or a criminal situation, then it would be an element against dismissal. But, as the trial has indicated,*fn3 this entailed certain, shall we say, mitigating circumstances that were not indicative of criminal propensity as in the case, say, of murder or a criminal situation.

The State subsequently brought this appeal from the dismissal of ...


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