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State v. Kipi5/8/1991
ry, and the Grady test applies.
As pointed out in Justice Scalia's dissenting opinion in Grady , what the new double jeopardy test in effect requires is that prosecutors observe a rule previously rejected by the Supreme Court "that all charges arising out of a single occurrence must be joined in a single indictment." Grady , 110 S. Ct. at 2096 (Scalia, J., dissenting). Based on the Grady rule, what a prosecutor should do in circumstances such as in the present case is to obtain a waiver from family court on the contempt charge and proceed in circuit court on all of the charges.
In addition, although the issue is not specifically now before this court, we conclude that the Grady rule bars the prosecution (following the mistrial) of the other two charges against Kipi that were not dismissed by the court below. The trial court believed that these terroristic threatening charges, based on Kipi's threats to Yamasaki's housemates, were not within the jurisdiction of the family court. However, that conclusion addresses only whether the charges should have been joined under HRS § 701-109(2). Because the protective order prohibited Kipi from contacting, threatening, or abusing not only Yamasaki but anyone living with her, and because the State informed the family court judge of Kipi's threats to the housemates, which the court apparently considered in entering the requested five-month jail sentence, double jeopardy principles bar a second prosecution based on those threats.
IV.
Based on the foregoing, we affirm the dismissal of counts I and II of the complaint, and remand this case with instructions that the remaining two counts of the complaint be dismissed.
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