State v. Obrero. ( 2022 )

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
08-SEP-2022
08:28 AM
Dkt. 20 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Plaintiff-Appellee,
vs.
RICHARD OBRERO,
Defendant-Appellant.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 1CPC-XX-XXXXXXX)
SEPTEMBER 8, 2022
McKENNA, WILSON, AND EDDINS, JJ.; WITH NAKAYAMA, J.,
CONCURRING SEPARATELY AND DISSENTING, WITH WHOM McKENNA, J.,
JOINS AS TO SECTIONS II AND III; AND RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY EDDINS, J.
I. INTRODUCTION
This case is about what limits, if any, Hawai‘i Revised
Statutes (HRS) § 801-1 (2014) imposes on the State’s ability to
prosecute felonies. The law says:
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.
HRS § 801-1.
Defendant-Appellant Richard Obrero argues the State
violated HRS § 801-1 by using the complaint and preliminary
hearing process to prosecute him for second-degree murder,
attempted murder in the first and second degree, and use of
firearm in the commission of a separate felony.
We agree. Obrero isn’t charged with contempt. And the
felonies he’s charged with are neither within the jurisdiction
of the district court nor chargeable by information, see HRS
§§ 806-82 (2014), 806-83 (Supp. 2021). So Obrero is a person
who shall not “be subject to be tried and sentenced . . . in any
court, for an alleged offense, unless upon indictment.” HRS
§ 801-1.
We hold that HRS § 801-1 means what it plainly says:
criminal defendants cannot be “subject to be tried and sentenced
to be punished in any court, for an alleged offense” without an
indictment or information unless the charged offense is either
contempt or within the jurisdiction of the district court.
We also hold that defendants are “subject to be tried and
sentenced to be punished” at arraignment, when they must either
plead guilty, and be subject to sentencing, or plead not guilty,
2
and be subject to trial and possibly also sentencing.
II. PROCEDURAL BACKGROUND
A. Circuit Court Proceedings
On November 12, 2019, the State filed six separate
complaints against Obrero, alleging, among other things, 1 that he
had committed second-degree murder in violation of HRS §§ 707-
701.5 (Supp. 2021) and 706-656.
Two days later, on the morning of November 14, 2019, the
State presented its case against Obrero to an Oʻahu Grand Jury. 2
The grand jury returned a no bill. It did not think there was
probable cause to believe Obrero committed any of the charged
crimes. And it voted against allowing the State to subject
Obrero to the indignity, expense, and stigma of a criminal
prosecution.
The State was undeterred. On the afternoon of November 14,
2019 – just a few hours after the grand jury returned a no bill
– the State made its case again, 3 this time at a preliminary
1 The State also alleged Obrero had violated HRS § 134-21 (2011) by using
a firearm to commit second-degree murder. And that he’d committed one count
of attempted murder in the first degree in violation of HRS §§ 705-500
(2014), 707-701(1)(a) (2014 & Supp. 2021), and 706-656 and three counts of
attempted murder in the second degree in violation of HRS §§ 705-500, 707-
701.5, and 706-656 (2014).
2 The proposed indictment included the six offenses in the complaint as
well as three counts of carrying or use of firearm in the commission of a
separate felony in violation of HRS § 134-21.
3 The State argued that there was probable cause to charge Obrero for the
six offenses alleged in the complaint.
3
hearing before the district court. The hearing was continued to
the next day; when it concluded, the district court — unlike the
grand jury — found there was probable cause to charge Obrero.
It committed Obrero’s case to the Circuit Court of the First
Circuit. 4
Obrero pled not guilty at his November 2019 arraignment.
Later, in July 2021, Obrero moved for dismissal of the
charges. He argued the State’s prosecution of him was unlawful
because there was no indictment. He pointed to the plain
language of 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.
HRS § 801-1.
Obrero argued that his charges weren’t for contempt and
didn’t fall “within the jurisdiction of a district court.” He
reasoned that since the charges against him can’t be charged by
information (which is only available for certain Class B and C
felonies, see HRS §§ 806-82, 806-83), he is a person who shall
not “be subject to be tried and sentenced to be punished in any
court, for an alleged offense, unless upon indictment.” See HRS
§ 801-1.
4 The State consolidated its six previously-filed complaints into a
single complaint in the circuit court.
4
The State opposed Obrero’s motion. It urged the court to
look beyond the plain text of HRS § 801-1 and interpret the
statute through reference to article I, section 10 of the Hawai‘i
Constitution.
Before 1982, the Hawai‘i Constitution mirrored the federal
constitution in requiring grand jury presentments or indictments
for felony prosecutions. In 1982, a constitutional amendment
rolled back the constitutional grand jury indictment requirement
for felony prosecutions. Now, article I, section 10 begins: “No
person shall be held to answer for a capital or otherwise
infamous crime, 5 unless on a presentment or indictment of a grand
jury or upon a finding of probable cause after a preliminary
hearing held as provided by law or upon information 6 in writing
signed by a legal prosecuting officer . . . .” (emphasis added).
The State argued that the 1982 amendment didn’t just make
it constitutional for it to initiate felony prosecutions through
the complaint and preliminary hearing process, it also
5 Article I, section 10 refers to “infamous crimes,” rather than
felonies. We have never considered the meaning of the term “infamous crimes”
as used in article I, section 10. But in Mackin v. United States, 117 U.S.
348, 354 (1886), the United States Supreme Court held that an “infamous
crime” in the context of the Fifth Amendment right to a grand jury indictment
excluded “misdemeanors not punishable by imprisonment in the penitentiary.”
And United States v. J. Lindsay Wells Co., 186 F. 248, 250 (W.D. Tenn. 1910)
held that an “infamous crime” was one that may lead to the punishment of
imprisonment for more than one year, a definition that encompasses all
felonies.
6 Article I, section 10 was amended again in 2004 to allow for
information charging. See 2004 Haw. Sess. L., at 1085.
5
effectively nullified HRS § 801-1’s grand jury protections by
authorizing the State to use complaints and preliminary hearings
to initiate felony prosecutions.
The State supported this position with a discussion of
Hawai‘i Rules of Penal Procedure Rules (HRPP) 5(c) and 7(b). The
former explicitly contemplates preliminary hearings as
proceedings that may follow the arrest of defendants charged
with felonies. The latter — in direct conflict with HRS § 801-1
— states that a felony may be prosecuted by complaint “if with
respect to that felony the district judge has found probable
cause at a preliminary hearing and has committed the defendant
to answer in the circuit court . . .” (or if the defendant has
properly waived the right to an indictment or preliminary
hearing). See HRPP Rule 7(b). The State notes that under HRS
§ 602-11 the HRPP have the force and effect of law.
The trial court denied Obrero’s motion to dismiss. It
relied on the in pari materia canon of statutory construction,
which provides that laws on the same subject matter should be
“construed with reference to each other” so that “[w]hat is
clear in one statute may be called upon in aid to explain what
is doubtful in another.” Wells Fargo Bank, N.A. v. Omiya, 142
Hawai‘i 439, 450, 420 P.3d 370, 381 (2018). The court recognized
that HRS § 801-1 “standing alone . . . could lend itself to the
interpretation that Mr. Obrero in this case should have been
6
indicted by a grand jury in order for the State to proceed.”
But, it said, HRS § 801-1 does not stand alone; the statue must
be read “in pari materia to other statutes, which the State has
pointed out, and other constitutional provisions and other rules
that are promulgated by our Supreme Court, which, pursuant to
HRS [§] 602-11, do have the force and effect of law.” The court
concluded that when HRS § 801-1 was read in pari materia with
the authorities identified by the State, it did not preclude the
State from using the complaint and preliminary hearing process
to prosecute Obrero.
B. Proceedings on Appeal
Obrero took an interlocutory appeal to the ICA. He then
applied for, and received, transfer to this court.
On appeal, Obrero contends that the circuit court erred by
applying the in pari materia canon of statutory interpretation. 7
That canon, he contends, applies only where there is something
doubtful or ambiguous about a statute. Since HRS § 801-1 is
clear on its face, the application of the in pari materia canon
in this case doesn’t resolve ambiguity, it creates it.
7 On appeal, Obrero also argues that the charges against him should be
dismissed with prejudice in order to prevent the possibility of a future
putative due process injury. Obrero does not claim that his due process
rights have been violated and has not shown an imminent “distinct and
palpable” possibility that they will be violated. See Kaho‘ohanohano v.
State, 114 Hawai‘i 302, 318, 162 P.3d 696, 712 (2007). For these reasons, we
decline to address Obrero’s due process contentions.
7
The State counters that it is a “fundamental tenet” of
statutory interpretation that “laws in pari materia, or upon the
same subject matter, shall be construed with reference to each
other. What is clear in one statute may be called in aid to
explain what is doubtful in another.” The State observes that
article I, section 10, HRS §§ 805-7 and 806-8, as well as HRPP
Rules 5 and 7, all relate to the same topic as HRS § 801-1: the
methods by which a criminal prosecution may be initiated. So,
it reasons, HRS § 801-1’s meaning should be triangulated through
reference to those other authorities.
The State points out that in 1991 the legislature amended
HRS §§ 806-6, -7, and -8 to add “complaint” to the disjunctive
series “information, complaint, or an indictment” and said the
amendment’s purpose was “to include complaints as a means of
commencing a criminal prosecution.” See HRS §§ 806-6 (2014), -7
(2014), and -8 (2014). The legislature described the amendment
as a “‘housekeeping measure’ to conform certain provisions of
the [HRS] to what is currently practiced under the [HRPP].”
House Standing Committee Report Number 1652, in 1991 House
Journal, at 1437. The State says we should interpret HRS § 801-
1 in light of this legislative history.
8
On appeal, the State also argues that HRS § 801-1 was
repealed by implication. It points to HRS §§ 602-11, 8 805-7, 9
and 806-8, 10 and HRPP Rules 5 and 7 and argues they “cover the
field regulating the process, practices, and procedure that
authorize a person to be held to answer for felony offenses upon
a finding of probable cause after a preliminary hearing” and
that HRS § 801-1, therefore, “seems to have been, in part,
impliedly repealed or amended” such that it cannot be
interpreted as Obrero contends.
Obrero rejects the State’s repeal-by-implication argument.
Citing State v. Casugay-Badiang, 130 Hawai‘i 21, 305 P.3d 4378 See HRS § 602-11 (2016) (“The supreme court shall have power to
promulgate rules in all civil and criminal cases for all courts relating to
process, practices, procedure and appeals, which shall have the force and
effect of law. Such rules shall not abridge, enlarge, or modify the
substantive rights of any litigant, nor the jurisdiction of any of the
courts, nor affect any statute of limitations.”).
9 See HRS § 805-7 (“In all cases of arrest for offenses that must be
tried in the first instance before a jury, or that can be tried only on
indictment by a grand jury, the judge in whose jurisdiction or on whose
warrant the accused was arrested, upon the appearance of the accused, shall
proceed to consider whether there is probable cause to believe that the
accused is guilty of the offense with which the accused is charged.”).
10 HRS § 806-8 says:
In criminal cases brought in the first instance in a court
of record, but in which the accused may be held to answer
without an indictment by a grand jury, the legal prosecutor
may arraign and prosecute the accused upon an information,
complaint, or an indictment at the prosecutor’s election;
and in all criminal cases brought in the first instance in
a court of record the prosecutor may arraign and prosecute
the accused by information, complaint, or indictment, as
the case may be, whether there has been a previous
examination, or commitment for trial by a judge, or not.
HRS § 806-8.
9
(2013), he argues that for a statute to be repealed by
implication it must be “‘plainly irreconcilable’ with some other
statute or constitutional provision.” Id. at 29, 305 P.3d at
445. Obrero says the State has not shown that “effect can[not]
reasonably be given” to both HRS § 801-1 and the constitutional
and statutory provisions the State contends implicitly repeal
HRS § 801-1.
III. DISCUSSION
HRS § 801-1 plainly states that the State must secure an
indictment to subject Obrero to trial and sentencing. 11 We agree
with Obrero that we cannot undo this unambiguous statutory
requirement with an in pari materia analysis: the in pari
materia canon is used to resolve statutory ambiguity, not create
it.
The only ambiguity in HRS § 801-1 is found in the phrase
“subject to trial and sentencing.” At what point does a
criminal defendant become subject to trial and sentencing? We
hold that a defendant is subject to trial and sentencing at
arraignment, when they must either plead guilty (and face
11 We review the court’s interpretation of HRS § 801-1 de novo. See Gray
v. Admin. Dir. of the Court, 84 Hawai‘i 138, 144, 931 P.2d 580, 586 (1997)
(“The interpretation of a statute is a question of law reviewable de novo.”
(Cleaned up.)). However, had Obrero challenged the State’s failure to comply
with HRS § 801-1 for the first time on appeal, we would presume the validity
of the complaint against him and would not reverse his conviction absent a
showing that the complaint prejudiced him or could not be construed to charge
a crime. See State v. Wheeler, 121 Hawai‘i 383, 399, 219 P.3d 1170, 1186
(2009).
10
sentencing) or plead not guilty (and face trial and potentially
also sentencing).
In addition to holding that HRS § 801-1 means what it
plainly says, we also hold that the statute has not been
implicitly repealed. HRS § 801-1 is still good law. And the
State’s prosecution of Obrero is unlawful because it has not
complied with the statute’s indictment requirement. 12
12 The unlawfulness of the State’s prosecution did not deprive the circuit
court of subject-matter jurisdiction. Article VI, section 1 of Hawai‘i’s
constitution gives the courts “original and appellate jurisdiction as
provided by law.” And under HRS § 603-21.5(a)(1), the circuit courts have
jurisdiction over “[c]riminal offenses cognizable under the laws of the
State, committed within their respective circuits or transferred to them for
trial by change of venue from some other circuit court.” HRS § 603-
21.5(a)(1) (2016 & Supp. 2021). “Cognizable means ‘capable of being known or
recognized,’ or ‘capable of being judicially tried or examined before a
designated tribunal; within the court’s jurisdiction.’” Schwartz v. State,
136 Hawai‘i 258, 264, 361 P.3d 1161, 1167 (2015) (cleaned up) (quoting Black’s
Law Dictionary 316 (10th ed. 2014)).
In Schwartz, we held that a complaint properly invoked the subject-
matter jurisdiction of the District Court of the Second Circuit even though
it failed to allege an element of the crime it charged. We explained that
the statutory requirements for the district court’s jurisdiction (found in
HRS §§ 604–8 (2016 & Supp. 2021) and 604–11.5 (2016)) were met because the
charging document alleged the defendant committed a “‘known’ and recognized”
statutory offense “punishable by a fine and by imprisonment not exceeding one
year,” “in Lāhainā, which is within the Second Circuit.” Id. at 264, 361
P.3d at 1167. Here, a similar analysis informs our conclusion that the
State’s complaint properly invoked the circuit court’s subject-matter
jurisdiction. The complaint alleged Obrero violated HRS §§ 705-500, 707-
701(1)(a), 706-656, 707-701.5, and 134-21, all of which are recognized
offenses under the laws of our State. It also alleged Obrero committed these
offenses “in the City and County of Honolulu,” which is in the First Circuit.
By charging Obrero with committing “[c]riminal offenses cognizable under the
laws of the State, committed within [the First Circuit],” the complaint
satisfied HRS § 603-21.5(a)(1)’s requirements for invoking the Circuit Court
of the First Circuit’s subject-matter jurisdiction.
11
A. The in pari materia canon is inapplicable because HRS
§ 801-1 is plain on its face: the State needs an indictment
to subject Obrero to trial and sentencing
The plain language of HRS § 801-1 leaves little room for
confusion or doubt about what the State must do if it wants to
subject Obrero to trial and sentencing: 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.
The State has not advanced any “reasonable, competing
interpretations” of what’s required by the statute. There is
therefore no ambiguity about what HRS § 801-1 requires the State
to do before it may “subject Obrero to trial and sentencing.”
See United States v. Acosta, 363 F.3d 1141, 1155 (11th Cir.
2004) (“[T]he existence of two reasonable, competing
interpretations is the very definition of ambiguity.” (internal
quotation marks omitted)).
The in pari materia canon of statutory interpretation is a
useful tool for interpreting ambiguous or doubtful statutes.
But it should not be used to muddle the meaning of unequivocal,
but inconvenient, black letter law. Our rule is “What is clear
in one statute may be called upon in aid to explain what is
doubtful in another.” Wells Fargo Bank, 142 Hawai‘i at 450, 420
P.3d at 381 (emphasis added). It is not: “What is clear in one
12
statute may be called upon to create doubt in another.” As the
Supreme Court explained in Barnes v. Philadelphia & R.R. Co., 84
U.S. 294 (1872):
Where a section or clause of a statute is ambiguous, much
aid, it is admitted, may be derived in ascertaining its
meaning by comparing the section or clause in question with
prior statutes in pari materiâ, but it cannot be admitted
that such a resort is a proper one where the language
employed by the legislature is plain and free of all
uncertainty, as the true rule in such a case is to hold
that the statute speaks its own construction.
Id. at 302. See also United States v. Broncheau, 645 F.3d 676,
685 (4th Cir. 2011) (“The principle of in pari materia is
applicable . . . only where the meaning of a statute is
ambiguous or doubtful.” (cleaned up)); State ex rel. Clay v.
Cuyahoga Cty. Med. Exam’r’s Office, 94 N.E.3d 498, 503 (Ohio
2017) (explaining that the in pari materia canon was not
applicable where the court could not “after reading the statute
and giving the words the legislature chose their plain and
ordinary meanings, find that the words of the statute are
ambiguous”).
HRS § 801-1 “speaks its own construction.” And because it
is unambiguous on its face about what the State must do before
it may subject a defendant to trial and sentencing, we cannot
use an in pari materia reading to nullify its plain meaning.
13
B. A defendant becomes subject to trial and sentencing at
arraignment
To the extent that there is any ambiguity to be found in
HRS § 801-1, it is in the phrase “subject to trial and
sentencing.” “Subject to trial and sentencing” could mean the
start of trial. But it could also mean some earlier point in
the criminal prosecution where the specters of adjudication and
possibly punishment are concrete enough that the defendant is
“subject to” them.
We hold that defendants are subject to “be tried and
sentenced to be punished” at arraignment. There is no way for a
defendant to leave an arraignment without being “subject to be
tried” (if the defendant has pled not guilty) or “subject to be
sentenced to be punished” (if the defendant has pled guilty).
Cf. State v. Hernandez, 143 Hawai‘i 501, 513, 431 P.3d 1274, 1286
(2018) (recognizing that “a guilty plea in itself is a
conviction” (cleaned up)). By demanding a plea of either
“guilty” or “not guilty,” the law subjects defendants to be
either tried or sentenced at arraignment. So under HRS § 801-1,
the State may initiate a felony prosecution via complaint, but
it should secure an indictment or information (if applicable)
14
before arraignment. 13, 14
C. HRS § 801-1 has not been repealed by implication
There are only two ways that a law may repeal an earlier
statute “by implication.” The first is if the two laws are
plainly irreconcilable; the second is “if the later act covers
the whole subject of the earlier one and is clearly intended as
a substitute.” See Gardens at W. Maui Vacation Club v. Cty. of
Maui, 90 Hawai‘i 334, 341, 978 P.2d 772, 779 (1999) (cleaned up);
see also Fasi v. City & Cty. of Honolulu, 50 Haw. 277, 285, 439
P.2d 206, 211 (1968) (explaining that repeal by implication
occurs when a latter act “is exclusive, that is, 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” (emphasis added)). We have never recognized implicit
repeal by implication absent direct conflict between statutes or
13 Federal cases concerning the use of informations to initiate federal
felony prosecutions provide support for this approach. Unlike article I,
section 10, the Fifth Amendment prohibits holding defendants to answer
without a grand jury indictment. But several courts have held that the
government may still initiate federal prosecutions — and satisfy statutes of
limitations — with an information; the Fifth Amendment just means that there
needs to be a grand jury indictment before the defendant can be required to
plead or be subjected to trial. See United States v. Burdix-Dana, 149 F.3d
741, 742 (7th Cir. 1998) (recognizing that “absence of a valid waiver of
prosecution by indictment bars the acceptance of a guilty plea or a trial on
the relevant charges” but also holding that filing of information satisfies
statute of limitations even where indictment is necessary for further
prosecution); United States v. Rothenberg, 554 F.Supp.3d 1039, 1041 (N.D.
Cal. 2021) (concluding that information “tolled the statute of limitations”
even though defendant had not waived right to grand jury indictment).
14 HRS § 806-7 also dictates that “[e]very indictment shall be duly found
by a grand jury before the arraignment of the accused.” HRS § 806-7
(emphasis added).
15
evidence that a statute is “manifestly designed” to “cover the
field” and displace all other law on a subject.
Repeal by implication is disfavored. Gardens at W. Maui
Vacation Club, 90 Hawaiʻi at 340, 978 P.2d at 778. 15 And “if
effect can reasonably be given to two statutes, it is proper to
presume that the earlier statute is intended to remain in force
and that the later statute did not repeal it.” State v.
Pacariem, 67 Haw. 46, 47, 677 P.2d 463, 465 (1984).
Here, the State has not shown that article I, section 10 or
any of the other authorities it cites are either “plainly
irreconcilable” with HRS § 801-1 or manifestly designed by the
legislature to “cover the field” and embrace the entire law on
the initiation of felony prosecutions.
The State is right that HRPP Rules 5 and 7 — which
authorize the use of the complaint-and-preliminary-hearing
process to initiate felony prosecutions — flatly contradict HRS
§ 801-1. But these are rules made by the Supreme Court, not
laws enacted by the legislature. These rules may have the force
of law, but they may never “abridge, enlarge, or modify the
substantive rights of any litigant.” HRS § 602-11. As we
explained in Cox v. Cox, “[w]here a court-made rule affecting
15 See also Mahiai v. Suwa, 69 Haw. 349, 357, 742 P.2d 359, 366 (1987)
(“[R]epeal by implication is disfavored.”); Furukawa v. Honolulu Zoological
Soc’y, 85 Hawai‘i 7, 19, 936 P.2d 643, 655 (1997) (“Repeals by implication are
disfavored.”).
16
litigants’ substantive rights contravenes the dictates of a
parallel statute, the rule must give way.” 138 Hawai‘i 476, 482,
382 P.3d 288, 294 (2016). 16,17
None of the constitutional or statutory authorities the
State cites directly conflict with HRS § 801-1. Not article I,
16 See also Hernandez, 143 Hawai‘i at 510 n.14, 431 P.3d at 1283 n.14 (“It
is self-evident that while a court rule may provide an exception to another
court rule, this exception would have no effect upon [a] statutory or
constitutional right . . . .”).
17 Caselaw interpreting HRS § 602-11 makes clear that a right need not
come from the constitution to be “substantive.” See In re Doe Children, 94
Hawai‘i 485, 487, 17 P.3d 217, 219 (2001) (holding that statute setting filing
deadlines conferred substantive right); Cox v. Cox, 138 Hawai‘i 476, 481, 382
P.3d 288, 293 (2016) (holding that statute directing the family court to
consider certain factors in awarding attorney fees conferred substantive
right). HRS § 801-1 confers a substantive right in being tried only upon a
determination of probable cause from a group of ordinary citizens who are “at
arm’s length” from the judiciary and can serve as a “buffer or referee
between the Government and the people.” See United States v. Williams, 504
U.S. 36, 47 (1992).
17
section 10 as amended in 1982. 18 Not HRS § 805-7 19 (last amended
in 1998). Not HRS § 806-6 or -8 (last amended in 1991). 20 In
fact, HRS §§ 805-7, and 806-8 refer to cases that “can be tried
18 Article I, section 10 places limits on the government’s power to
subject a criminal defendant to the stigma, uncertainty, and expense of
criminal prosecution. Cf. Monongahela Navigation Co. v. U.S., 148 U.S. 312,
325 (1893) (describing the Fifth Amendment as “a series of negations, denials
of right or power in the government”). Because of article I, section 10, the
government could not, for example, force someone to plead “guilty” or “not
guilty” to criminal charges based on the results of a social media poll. But
the section does not limit the legislature’s ability to place checks on the
government’s power to prosecute beyond those imposed by the constitution.
Cf. State v. Maldonado, 108 Hawai‘i 436, 444, 121 P.3d 901, 909 (2005)
(“[W]here the legislature has enacted a valid statute that provides greater
protection than the constitution, conformance to the statutory mandate, and
not the lower reasonableness standard set forth by the state or federal
constitution, is required.”). HRS § 801-1 places restrictions on the
government’s power to prosecute beyond those found in the constitution. But
that does not mean it “conflicts” with the constitution. The legislature is
free to augment or duplicate the rights afforded by the constitution with
statutory entitlements. And it has done just that with HRS § 801-1. The
statute reflects clear legislative intent that — in addition to whatever
constitutional rights they may have under article I, section 10 — certain
defendants also have a discrete statutory entitlement to face trial and
sentencing only upon an indictment.
19 HRS § 805-7 identifies the circumstances in which a district court must
hold probable cause hearings, but nothing in the statute suggests that the
State may try and sentence a defendant based solely on a district court’s
probable cause determination. To the contrary, the statute explicitly
recognizes that there are certain crimes that “can be tried only on
indictment by a grand jury”:
In all cases of arrest for offenses that must be tried in
the first instance before a jury, or that can be tried only
on indictment by a grand jury, the judge in whose
jurisdiction or on whose warrant the accused was arrested,
upon the appearance of the accused, shall proceed to
consider whether there is probable cause to believe that the
accused is guilty of the offense with which the accused is
charged.
HRS § 805-7 (emphasis added).
20 The HRPP recognize that felonies may be charged with complaints where
the defendant has waived the right to an indictment. See, e.g. HRPP Rule
7(b)(3). The references in HRS §§ 806- 6, -7, and -8 to the charging of
felonies by complaint do not conflict with HRS § 801-1 when they are read as
referring to felonies charged by complaint pursuant to HRPP Rule 7(b)(3).
18
only on indictment by a grand jury” (HRS § 805-7) or “in which
the accused may be held to answer without an indictment by a
grand jury” (HRS § 806-8). HRS § 806-8 is even titled
“[p]rosecution where indictment not essential.” The State does
not explain how a statute with a title that contemplates the
possibility that indictments are, in some circumstances,
essential for prosecution could directly conflict with a statute
providing that indictments are, in some circumstances, essential
for prosecution.
The State’s claim that article I, section 10, HRS § 805-7,
or HRS § 806-6 or -8 implicitly repeal HRS § 801-1 by “covering
the field” is similarly without merit.
Article I, section 10 cannot “cover the field” because it
is manifestly not intended to embrace the entire law on the
initiation of criminal prosecutions in our state. It is a
single sentence. It establishes a constitutional floor for
prosecutions, and “indicates” the general principle that
defendants should not be prosecuted without a probable cause
determination from an independent factfinder; but it 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).
A single sentence is no substitute for the tangle of laws
that came before it concerning the initiation of felony
19
prosecutions. The 1982 amendment of article I, section 10,
then, made the repeal of HRS § 801-1 possible, but did not
effectuate that repeal by “covering the field” and providing a
comprehensive new procedural framework for charging felonies
through the complaint and preliminary hearing process.
None of the other one-off statutes the State cites as
“implicitly repealing” HRS § 801-1 constitute such a framework
either. These are standalone statutes that deal with piecemeal
aspects of prosecution. They concern “Commitment; form of
mittimus” (HRS § 805-7’s title) and oblige the State to furnish
defendants with a copy of a complaint or indictment before
arraignment (HRS § 806-6). They do not embrace the entire law
on the initiation of a felony prosecution.
HRS § 801-1’s history can be traced to 1869, when the
Kingdom of Hawai‘i adopted a law requiring grand jury indictments
for most prosecutions. 21 And America’s “[f]ounders thought the
grand jury so essential to basic liberties that they provided in
the Fifth Amendment that federal prosecution for serious crimes
can only be instituted by a presentment or indictment of a Grand
21 The 1869 version of this law enacted in the Hawaiian Kingdom’s penal
code was nearly identical to HRS § 801-1: it exempted offenses within the
jurisdiction of a “police court or district justice” from the indictment
requirement whereas HRS § 801-1 exempts offenses within the “jurisdiction of
a district court.” Haw. Kingdom Penal Code 1869, Chapter 2 § 2.
20
Jury.” United States v. Calandra, 414 U.S. 338, 343 (1974)
(cleaned up)).
The grand jury “infuses our system of justice with a
democratic ethos because ordinary citizens serve as grand
jurors.” State v. Vega-Larregui, 248 A.3d 1224, 1239 (N.J.
2021) (cleaned up)). It “functions as a barrier to reckless or
unfounded charges.” State v. Kahlbaun, 64 Haw. 197, 203, 638
P.2d 309, 315 (1981). And it serves as a “shield against
arbitrary or oppressive action” by ensuring “that serious
criminal accusations will be brought only upon the considered
judgment of a representative body of citizens acting under oath
and under judicial instruction and guidance.” Id. (quoting
United States v. Mandujano, 425 U.S. 564, 571 (1976)). Put
plainly, HRS § 801-1 guarantees that the State may only
prosecute someone for one of Hawai‘i’s most serious offenses if
it has an indictment from “ordinary citizens” and not just a
determination of probable cause from a single judge.
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.” See Fasi, 50 Haw. at 285, 439
21
P.2d at 211 (holding that statute which used the introductory
clause “[a]ny law to the contrary notwithstanding” was
“manifest[ly]” designed to “cover the entire field” on its
topic.) But it cannot undo the substantive right to a grand
jury indictment conferred by HRS § 801-1 with a “housekeeping
measure” that sprinkles the word “complaint” throughout a few
statutes. 22
D. The State’s prosecution of Obrero is unlawful under HRS
§ 801-1
The felonies Obrero is charged with are not within the
jurisdiction of the district court and may not be charged by
information. So under HRS § 801-1, Obrero cannot be arraigned
on the charges absent a grand jury indictment. Because the
State’s prosecution of Obrero proceeded beyond arraignment based
on a complaint and probable cause hearing alone, it is unlawful
under HRS § 801-1. The charges against Obrero should be
dismissed without prejudice. 23
22 Especially not where, as discussed above, those statutes explicitly
contemplate that some cases may only be tried on an indictment. See, e.g.,
HRS § 806-8 (referring to cases “in which the accused may be held to answer
without an indictment by a grand jury”).
23 This conclusion is justified for the reasons set forth in this opinion.
But it is hardly the only conclusion that a competent lawyer could arrive at
after reading HRS § 801-1 and considering other related authorities
concerning the initiation of felony prosecutions. Some of the sharpest legal
minds disagree with our holding in this case. See dissent. So our
conclusion that the plain language of HRS § 801-1 obliged the State to secure
an indictment before subjecting Obrero to trial and sentencing does not mean
that a defense lawyer who declined to move for the dismissal of charges for
failure to comply with HRS § 801-1 fell below the “range of competence
demanded of attorneys in criminal cases.” See State v. Salavea, 147 Hawai‘i
564, 576, 465 P.3d 1011, 1023 (2020).
22
IV. CONCLUSION
The State cannot subject Obrero to trial and sentencing
without a grand jury indictment. See HRS § 801-1.
We reverse the circuit court’s denial of Obrero’s motion to
dismiss and remand this case to the circuit court for
proceedings consistent with this opinion.
Thomas M. Otake /s/ Sabrina S. McKenna
for appellant
/s/ Michael D. Wilson
Donn Fudo /s/ Todd W. Eddins
for appellee
23