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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2024
08:18 AM
Dkt. 43 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellant,
v.
STEVEN RAY SIMPSON, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Nakasone, Presiding Judge, McCullen and Guidry, JJ.)
This appeal challenges the dismissal without prejudice
of a grand jury indictment for a 1978 murder based on
insufficient evidence of probable cause. We affirm.
Plaintiff-Appellant State of Hawaiʻi (State) appeals
from the October 24, 2023 "Findings of Fact [(FOFs)],
Conclusions of Law [(COLs)] and Order Granting [Defendant-Appellee Steven Ray Simpson (Simpson)'s] Motion to Dismiss
Indictment" (Order Granting Dismissal) filed by the Circuit
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Court of the Third Circuit (Circuit Court). 1 The Circuit Court
concluded that there was "insufficient competent evidence" due
to lack of foundation for two critical pieces of evidence:
(1) a blue plastic tarp, purportedly recovered at the crime
scene, which contained Simpson's fingerprint, and (2) "pubic
combings," purportedly taken from the decedent's body, which
contained Simpson's DNA.
On appeal, the State contends that the Circuit Court:
(1) "abused its discretion in granting the Motion to Dismiss
because 'competency of the evidence' before the grand jury only
applies to accusations of prosecutorial misconduct"; and
(2) "abused its discretion in substituting its judgment for the
grand jury in determining the sufficiency of the evidence
regarding the foundation of the evidence." 2
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve
Simpson's points of error as follows, and affirm.
1 The Honorable Peter K. Kubota presided.
2 The points of error refer to an "Objection" to the "Proposed
[FOF]s, [COL]s and Order Granting Motion to Dismiss Indictment" (Objection),
but do not identify any specific FOFs and COLs in the Order Granting
Dismissal that the State is challenging on appeal. See Hawaiʻi Rules of
Appellate Procedure (HRAP) Rule 28(b)(4)(C) (requiring "either a quotation of
the finding or conclusion urged as error or reference to appended findings
and conclusions"). The State also does not present argument specific to any
FOFs or COLs. See HRAP Rule 28(b)(7) ("Points not argued may be deemed
waived."). Unchallenged FOFs are binding. See State v. Rodrigues,
145 Hawai‘i 487, 494, 454 P.3d 428, 435 (2019). Even if we were to consider
the State's Objection, it does not show that the proposed findings were
clearly erroneous, where the Objection: summarily refers to the proposed
findings by number only; indicates the State "objects" with a brief reason;
and contains no legal argument for any objection.
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On June 23, 2022, the State indicted Simpson for the
1978 murder of Valerie Warshay (Warshay) in Puna, Hawaiʻi, in
violation of Hawaii Revised Statutes (HRS) § 707-701(1). 3
On March 16, 2023, Simpson filed a "Motion to Dismiss
Indictment" (Motion to Dismiss) arguing that "[i]ncompetent
evidence" and "[e]xcessive use of hearsay evidence denied
[Simpson] a fair grand jury proceeding[,]" and that
"[i]nsufficient evidence was presented to support a finding of
probable cause[.]" The State opposed the motion.
The Motion to Dismiss attached the transcript of the
grand jury proceeding, which contained the testimonies pertinent
here, of retired Hawaiʻi County Police Department (HIPD) Officer
William Perreira (Officer Perreira), HIPD Detective Derek
Morimoto (Detective Morimoto), and an acquaintance of Warshay
named Raymond Dana James (James). Officer Perreira testified
that he attended the autopsy of Warshay's body, and he responded
affirmatively when the prosecutor asked if there were "items
taken from [Warshay's] body for forensic purposes such as hair
and fingernail clippings[,]" and if he "watched those [items] be
collected[.]" Detective Morimoto testified that: "there was a
blue tarp that [Warshay's] body was found laying on, [and] two
items of swimwear near the body"; the FBI "had developed a
fingerprint on the blue tarp"; that fingerprint matched
Simpson's "right ring finger"; "Forensic Analytical took
swabbings from the . . . teeth of the comb that was used to
3 The Indictment charged that "[o]n or about April 22, 1978 through
April 23, 1978 . . . STEVEN RAY SIMPSON intentionally or knowingly caused the
death of another person, Valerie Warshay," committing the offense of
"Murder," in violation of HRS § 707-701(1) (1976), which provided: "a person
commits the offense of murder if he intentionally or knowingly causes the
death of another person."
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collect the pubic hair samples from [Warshay's body], and . . .
there was a sperm, uh, fraction . . . discovered"; and Simpson
was identified as "[t]he major contributor" and "[t]he minor
contribut[or] was [ ] James." James testified that he met
Warshay at Harry K. Brown Park, that they "spent the night
together[,]" and that it did not surprise him that his DNA was
present on some items of Warshay's.
At the September 20, 2023 hearing on the Motion to
Dismiss, the Circuit Court received the grand jury transcript
into evidence; and following arguments from both parties, orally
granted the motion. The Circuit Court noted "there was no
foundation laid as to either of the two key pieces of evidence,"
leading to "huge leaps in the evidence considered by the grand
jury[,]" because "[n]o one ha[d] testified with personal
knowledge that either item was collected from the crime scene or
the victim."
The Circuit Court's October 24, 2023 Order Granting
Dismissal concluded that the tarp and pubic combings constituted
incompetent evidence for lack of foundation, rendering the
remaining evidence presented to the grand jury insufficient to
establish probable cause, as follows:
FINDINGS OF FACTS [sic]
. . . .
32. The State's case was based upon [Simpson]'s
fingerprint which was located on a purported blue tarp
which Warshay was found lying on[,] and DNA analysis of
Warshay's pubic combings;
33. [Detective] Morimoto testified that while he
found the blue tarp in evidence, he had no knowledge of the
recovery of the blue tarp, i.e. whether that tarp was in
fact a tarp that Warshay was lying on.
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34. There was no evidence presented to the grand jury
that the tarp in the police evidence room was in fact a
tarp that Warshay was lying on;
35. [Officer] Perreira did not testify that he saw
the tarp when he arrived at the crime scene nor did he
testify that the police recovered a tarp;
36. There being no evidentiary foundation
established, the tarp and its forensic value was
inadmissible and incompetent evidence;
37. There was no evidence that police recovered pubic
combings from Warshay's body;
38. [Officer] Perreira did not testify that pubic
combings were recovered;
39. There was no evidence presented to the grand jury
that the purported pubic combings which Forensic Analytical
analyzed actually came from Warshay;
40. There being no evidentiary foundation
established, the pubic combings and its forensic value was
inadmissible and incompetent.
41. The Court reviewed the issue of hearsay evidence
presented to the grand jury and finds that there was not
excessive use of hearsay evidence presented;
42. The incompetent and inadmissible evidence
violated [Simpson]'s due process right to a fair and
impartial grand jury proceeding;
43. Without the incompetent and inadmissible
evidence, evidence presented was insufficient to establish
probable cause;
Conclusions of Law
. . . .
3. The State's case was based upon [Simpson]'s
fingerprint which was located on a blue tarp which Warshay
was purportedly found lying on[,] and DNA analysis of
Warshay's pubic combings;
4. There was no evidence that the tarp in evidence
was in fact a tarp that Warshay was lying on;
5. The tarp and its forensic value was inadmissible
and incompetent evidence.
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6. There was no evidence that police recovered pubic
combings from Warshay's body.
7. There was no evidence that the purported pubic
combing which Forensic Analytical analyzed actually came
from Warshay;
8. The pubic combings and its [sic] forensic value
was [sic] inadmissible and incompetent;
9. The incompetent and inadmissible evidence denied
[Simpson] of [sic] his right to a fair grand jury
proceeding;
10. The Hawaii Supreme Court in State v. Okumura,
indicated:
Probable cause means such a state of facts as
would lead a person or [sic] ordinary caution
or prudence to believe and conscientiously
entertain a strong suspicion of guilt of the
accused. . . .
59 Haw. 549, 551, 584, P.2d 117, 119 (1979).
11. Disregarding the incompetent and inadmissible
evidence, there was insufficient evidence to support the
finding of probable cause;
12. Based on insufficient competent evidence
presented, the indictment must be dismissed.
(Emphases added.) The State timely appealed the Order Granting
Dismissal.
"An appellate court reviews a trial court's decision
to dismiss an indictment for abuse of discretion." State v.
Wong, 97 Hawaiʻi 512, 517, 40 P.3d 914, 919 (2002) (citing State
v. Chong, 86 Hawaiʻi 282, 288 n.2,
949 P.2d 122, 128 n.2 (1997)).
Where the issue "involves sufficiency of the evidence to support
an indictment, we review the circuit court's order de novo."
State v. Taylor, 126 Hawaiʻi 205, 215,
269 P.3d 740, 750 (2011)
(citing State v. Ontai, 84 Hawaiʻi 56, 59, 64,
929 P.2d 69, 72,
77 (1996) and State v. Ganal, 81 Hawai‘i 358, 367,
917 P.2d 370,
379 (1996)).
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(1) The Circuit Court's dismissal on grounds that the
evidence was insufficient to establish probable
cause due to incompetent evidence, without a
finding of prosecutorial misconduct, was not an
abuse of discretion.
The State asserts, based on language from Hawaiʻi
cases, that "[o]nly if a claim of prosecutorial misconduct is
raised can the competency of the evidence be attacked." The
State relies on language from, inter alia, Chong, 86 Hawaiʻi at
289, 949 P.2d at 129 ("The function of grand jury to protect
against unwarranted prosecution does not entail a duty . . . to
determine that the prosecution's case is supported by competent
evidence." (citation omitted)), and Wong, 97 Hawaiʻi at 518,
40 P.3d 914 at 920 (holding that because a "grand jury
proceeding is not adversary in nature[,] . . . an indictment may
not be attacked on the ground of the incompetency of the
evidence considered by the grand jury, where prosecutorial
misconduct is not involved" (citation omitted)). Accordingly,
the State argues that "[t]he Indictment should not have been
dismissed absent a showing of prosecutorial misconduct." The
State claims that the record does not reflect any prosecutorial
misconduct and maintains that it "did not step outside the
bounds of a proper presentment to the Grand Jury."
A grand jury's function is to determine whether
probable cause exists to support the commencement of criminal
prosecution. See Ganal, 81 Hawaiʻi at 367, 917 P.2d at 379 ("A
grand jury indictment must be based on probable cause."); Hawaiʻi
Const. Art 1, § 10. "'Probable cause' has been defined as 'a
state of facts as would lead a person of ordinary caution or
prudence to believe and conscientiously entertain a strong
suspicion of the guilt of the accused.'" Taylor, 126 Hawaiʻi at
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218, 269 P.3d at 753 (quoting Ontai, 84 Hawaiʻi at 63,
929 P.2d
at 76). "[S]ufficient legal and competent evidence before a
grand jury which establishes probable cause that a suspect has
violated the law will support an indictment." State v. Kuba,
68 Haw. 184, 190,
706 P.2d 1305, 1310 (1985) (citing State v.
Scotland,
58 Haw. 474, 476,
572 P.2d 497, 498 (1977)). "[W]here
sufficient legal and competent evidence is presented to a grand
jury, the reception of illegal or incompetent evidence would not
authorize the court to set aside an indictment if the remaining
legal evidence, considered as a whole, is sufficient to warrant
the indictment." State v. Chong (ICA Chong), 4 86 Hawaiʻi 290,
295,
949 P.2d 130, 135 (App. 1997) (quoting Scotland,
58 Haw. at
476,
572 P.2d at 498).
Applying these principles here, a trial court
reviewing a challenge to an indictment based on sufficiency of
evidence to establish probable cause considers whether the
record of the grand jury proceeding contains "sufficient legal
and competent evidence" to support the indictment. See Kuba,
68 Haw. at 190,
706 P.2d at 1310 (emphasis added). The Circuit
Court's competency of evidence analysis did not have to be
tethered to a review for prosecutorial misconduct when it was
determining whether there was sufficient evidence to establish
probable cause to indict Simpson for Warshay's murder. See id.;
ICA Chong, 86 Hawai‘i at 295, 949 P.2d at 135. It was not an
4 ICA Chong is a 1997 opinion from the Intermediate Court of
Appeals (ICA), and was not overturned on supreme court review in Chong,
86 Hawaiʻi at 290, 949 P.2d at 130. The supreme court affirmed ICA Chong,
holding that "the prosecution's use of pre-scripted questions and answers
. . . [for] its grand jury witnesses . . . did not so clearly infringe upon
the jury's decision-making function and was not so innately prejudicial that
the practice—in and of itself—violated Chong's right to due process of law by
invading the province of the grand jury." Id. at 289, 949 P.2d at 129.
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abuse of discretion for the Circuit Court to determine that
certain evidence was incompetent in its sufficiency-of-evidence- to-establish-probable-cause analysis leading to the dismissal of
the indictment in this case. See Wong, 97 Hawaiʻi at 517,
40 P.3d at 919.
(2) The Circuit Court did not improperly
"substitut[e] its judgment for the grand jury"
when it concluded there was insufficient evidence
to support the indictment.
The State argues that the Circuit Court "abused its
discretion in substituting its judgment for the grand jury in
determining the sufficiency of the evidence regarding the
foundation of the evidence." The State asserts that it "is
entitled to legitimate inferences that the physical and forensic
evidence testified to is linked to the case," contending that
"[t]he State does not need to show a rigorous chain of custody
at a grand jury presentment" and "[t]he Grand Jury was entitled
to make the inference that the evidence was precisely what it
purported to be, and then connect Simpson to the charge in the
Indictment." 5
The Circuit Court's determination that there was
insufficient evidence to establish probable cause to support the
indictment was based on the following unchallenged findings.
See Rodrigues, 145 Hawai‘i at 494, 454 P.3d at 435. Regarding
the tarp, the Circuit Court found in FOFs 33-35 that: Detective
Morimoto "had no knowledge of the recovery of the blue tarp";
the State did not present evidence "that the tarp in the police
evidence room was in fact a tarp that Warshay was lying on"; and
5 The State makes no argument based on Hawai‘i Rules of Evidence
(HRE) Rule 1101(d)(2), which states that the HRE are inapplicable in grand
jury proceedings.
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Officer Perreira "did not testify that he saw the tarp when he
arrived at the crime scene nor did he testify that the police
recovered a tarp[.]" Regarding the pubic combings, the Circuit
Court found in FOFs 37-39 that: "[t]here was no evidence that
police recovered pubic combings from Warshay's body"; Officer
Perreira, whom the record reflects attended the autopsy, "did
not testify that pubic combings were recovered"; and the State
did not present evidence "that the purported pubic combings
which Forensic Analytical analyzed actually came from
Warshay[.]"
We review the Circuit Court's conclusions based on
these unchallenged findings de novo. Taylor, 126 Hawaiʻi at 218,
269 P.3d at 753. The COLs pertinent here, COLs 5, 8, 11, and
12, stated: "[t]he tarp and its forensic value was inadmissible
and incompetent evidence"; "[t]he pubic combings and [their]
forensic value [were] inadmissible and incompetent";
"[d]isregarding the incompetent and inadmissible evidence, there
was insufficient evidence to support the finding of probable
cause"; and that "[b]ased on insufficient competent evidence
presented, the indictment must be dismissed." These COLs were
not erroneous. See id.; Kuba,
68 Haw. at 190,
706 P.2d at 1310;
ICA Chong, 86 Hawaiʻi at 295, 949 P.2d at 135. Therefore, the
Circuit Court did not "substitut[e] its judgment for the grand
jury," and did not abuse its discretion in dismissing the
indictment based on these conclusions that the evidence was
insufficient to establish probable cause. See Wong, 97 Hawaiʻi
at 517,
40 P.3d at 919.
For the foregoing reasons, we affirm the October 24,
2023 "Findings of Fact, Conclusions of Law and Order Granting
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Motion to Dismiss Indictment," filed and entered by the Circuit
Court of the Third Circuit.
DATED: Honolulu, Hawai‘i, October 30, 2024.
On the briefs:
/s/ Karen T. Nakasone
Annaliese H. Wolf,
Presiding Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellant.
/s/ Sonja M.P. McCullen
Associate Judge
Keith S. Shigetomi,
for Defendant-Appellee.
/s/ Kimberly T. Guidry
Associate Judge
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