As Corrected December 24, 2014.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (CR NO. 09-1-0410).
On the briefs:
Jeffrey A. Hawk, (Hawk Sing & Ignacio), for Defendant-Appellant.
James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
NAKAMURA, CHIEF JUDGE, AND LEONARD AND REIFURTH, JJ.
[134 Hawai'i 265] NAKAMURA. C.J.
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Joseph Vaimili (Vaimili) in an amended complaint with kidnapping, first-degree terroristic threatening, first-degree promoting prostitution, and carrying or use of a firearm in the commission of a separate felony. The charges stemmed from allegations by the complaining witness (CW) that Vaimili became her pimp, and then Vaimili kidnapped her, physically abused her, and threatened her at gun point.
Vaimili was released on bail and appeared for certain pre-trial proceedings and for jury selection. However, after the jury was selected, on the day the jury was to be sworn in, Vaimili failed to appear. The Circuit Court of the First Circuit (Circuit Court)  granted two continuances which delayed the swearing in of the jury for almost a month. [134 Hawai'i 266] After attempts to locate or contact Vaimili during this period failed, the Circuit Court proceeded to swear in the jury and continue with the trial. The jury found Vaimili guilty as charged on all counts. Vaimili was eventually apprehended in Texas over a year later and was returned to Hawai'i for sentencing. The Circuit Court sentenced Vaimili to a total of 40 years of imprisonment.
Vaimili appeals from the Judgment of Conviction and Sentence (Judgment) filed on February 21, 2012. On appeal, Vaimili contends that his convictions should be vacated because: (1) the charges against him were fatally defective due to the State's charging him in the disjunctive, which he claims resulted in the failure to provide him with adequate notice of the alleged offenses; (2) his trial counsel provided ineffective assistance by failing to raise the charging issue; and (3) the Circuit Court deprived Vaimili of his constitutional right to be present at trial by holding the trial in his absence after he failed to appear.
We hold that: (1) consistent with the Hawai'i Supreme Court's recent decision in State v. Codiamat, 131 Hawai'i 220, 317 P.3d 664 (2013), the State's charging Vaimili in the disjunctive did not render his charges defective; (2) Vaimili's trial counsel's failure to raise the charging issue did not constitute ineffective assistance of counsel; and (3) the Circuit Court acted within its discretion, and did not violate Vaimili's right to be present at trial, when it only proceeded with the trial after it became apparent that Vaimili was voluntarily absent, that he could not .be located, and that it was unlikely he would soon return. Accordingly, we affirm the Circuit Court's Judgment.
On October 13, 2009, the State charged Vaimili by amended complaint with (1) kidnapping, in violation of Hawaii Revised Statutes (HRS) § 707-720 (1) (e) (Supp.' 2013);  (2) kidnapping, in violation of HRS § 707-720(1) (d) (Supp. 2013);  (3) first-degree terroristic threatening, in violation of HRS § 707-716(1) (e) (Supp. 2008);  (4) first-degree promoting prostitution, in violation of HRS § 712-1202 (1) (a) (Supp. 2008);  and (5) carrying or use of a firearm in the commission of a separate felony, in violation of HRS § 134-21 (Supp. 2011). The amended complaint read in relevant part as follows:
[134 Hawai'i 267] COUNT I: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did intentionally or knowingly restrain [the CW], with intent to terrorize her or a third person, thereby committing the offense of Kidnapping, in violation of Section 707-720(1)(e) of the [HRS].
. . . .
COUNT II: On or about the 21st day of February, 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did intentionally or knowingly restrain [the CW], with intent to inflict bodily injury upon her or subject her to a sexual offense, thereby committing the offense of Kidnapping, in violation of Section 707-720(1)(d) of the [HRS].
. . . .
COUNT III: On or about the 4th day of March, 2009, to and including the 5th day of March, 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI, threatened, by word or conduct, to cause bodily injury to- [the CW], with the use of a dangerous instrument, to wit, an instrument that falls within the scope of Section 706-660.1 of the [HRS], with the intent to terrorize, or in reckless disregard of the risk of terrorizing [the CW], thereby committing the offense of Terroristic Threatening in the First Degree, in violation of Section 707-716(1)(e) of the [HRS].
. . . .
COUNT IV: On or about the 18th day of February, 2009, to and including the 3rd day of March, 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did knowingly advance prostitution by compelling [the CW] by force, threat, or intimidation to engage in prostitution, or did knowingly profit from such coercive conduct by another, thereby committing the offense of Promoting Prostitution in the First Degree, in violation of Section 712-1202(1)(a) of the [HRS].
. . . .
COUNT V: On or about the 4th day of March, 2009, to and including the 5th day of March, 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did knowingly carry on his person or have within his immediate control or did intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, to wit, Kidnapping and/or any included felony offense of Kidnapping, whether the firearm was loaded or not, and whether operable or not, thereby committing the offense of Carrying or Use of a Firearm in the Commission of a Separate Felony, in violation of Section 134-21 of the Hawaii Revised Statutes. JOSEPH VAIMILI commits the offense of Kidnapping, in violation of Section 707-720(1)(e) of the [HRS], if he intentionally or knowingly restrain [sic] [the CW] with intent to terrorize her or a third person.
Each count also alleged that if convicted of the charged offense or an included felony offense, Vaimili may be subject to an extended term of imprisonment as a multiple offender in accordance with HRS § § 706-661 and 706-662(4)(a) (Supp. 2013).
On April 6, 2010, the Circuit Court held a hearing on certain pre-trial motions, at which time Vaimili's trial counsel asked that Vaimili's presence be waived. The State informed the Circuit Court that it had information that Vaimili had left Hawai'i. The State explained that the bond posted for Vaimili was $250,000 because of the high risk of his leaving Hawai'i, and that Vaimili's bail bonds person had gone to San Francisco to look for him. The Circuit Court ordered a trial call the following week and required Vaimili's presence in court.
On April 13, 2010, Vaimili was present in court. Ida Peppers (Peppers), who stated that she was the representative of Freedom Bail Bonds and that she was also Vaimili's employer, reported to the court that she and Linda Del Rio (Del Rio) were in California looking for another person and not Vaimili. Vaimili denied that he had traveled to the mainland while on bail. The Circuit Court, however, continued the hearing for a week to permit additional witnesses to be called on [134 Hawai'i 268] the question of whether Vaimili had left Hawai'i.
At the subsequent hearing, Shane Yaw (Yaw), a district court clerk, testified that on April 1st, Del Rio informed Yaw that Vaimili had forfeited his $250,000 bail and that Del Rio was going to travel to San Francisco to find Vaimili. However, Yaw did not know whether Vaimili had actually left the jurisdiction. Del Rio, an employee of Freedom Bail Bonds, testified that Vaimili never left Hawaii and that she had traveled to California in search of two other people. The Circuit Court concluded that the evidence presented was insufficient to prove an intentional violation of the conditions of bail by Vaimili. However, the Circuit Court found Del Rio's credibility was " an issue" and that Yaw was more credible. The Circuit Court modified Vaimili's bail conditions by imposing a curfew on Vaimili and subjecting Vaimili to electronic monitoring.
Vaimili was present for jury selection, which began in the morning on Monday, June 21, 2010, and was completed that afternoon. After the jury was selected, the Circuit Court informed the jurors, in the presence of Vaimili, that trial would resume on Wednesday at 9:00, and it instructed the jurors to be present in the courthouse at 8:45. The Circuit Court informed the jurors that it would swear them in on Wednesday, and then proceed with opening statements and evidence.
On Wednesday, June 23, 2010, Vaimili failed to appear. Vaimili's trial attorney (defense counsel) represented to the Circuit Court that he had spoken to Vaimili the day before because they had planned to meet, but Vaimili failed to show up for the meeting. Defense counsel explained that when he attempted to contact Vaimili by phone several times thereafter, Vaimili's " phone number" indicated that Vaimili was not accepting calls.
The Circuit Court asked counsel's position on how the case should proceed, in light of Vaimili's absence. The Circuit Court noted that it could proceed with trial in absentia because " Vaimili voluntarily absented himself from the trial[,]" or it could discharge the jury, which had not yet been sworn in. Defense counsel preferred to have Vaimili present during trial and requested a continuance until Vaimili " show[ed] up" or could be " picked up." The Circuit Court continued trial to the following Monday, June 28, 2010.
On June 28, 2010, the State filed a " Memorandum on Trial In Absentia [,]" asserting that: (1) Vaimili was present at the commencement of trial for jury selection; (2) Vaimili was present in court when the State confirmed that the CW was on O'ahu and prepared to testify at trial; (3) Vaimili thereafter voluntarily absented himself from the proceedings by absconding; and (4) the public's interest in going forward with the trial outweighed Vaimili's right to be present. The State further represented that: (1) on June 15, 2010, Vaimili notified the Intake Service Center (ISC) that the telephone to which his electronic monitoring was attached had been disconnected, and that ISC had not heard from Vaimili since June 17, 2010, even though he had an appointment with ISC during the week of June 21, 2010; (2) since Vaimili's non-appearance in court on June 23, 2010, police officers and sheriffs had been actively searching for Vaimili on O'ahu at places he was known to frequent, but have' been unable to find him; (3) Vaimili had reportedly been at the Honolulu International Airport on June 23, 2010, preparing to board a flight to San Francisco; and (4) the CW had been brought from the mainland to Hawai'i to testify for trial, and that " [b]ecause Defendant has absconded, [the CW] is obligated to remain on the Island of Oahu for an additional week at significant expense, inconvenience and emotional distress to the [CW], who fears the Defendant and his friends will attempt to keep her from testifying against him."
In court on June 28, 2010, Vaimili's counsel informed the Circuit Court that Vaimili had not contacted counsel and that Vaimili had not been located by the bail bond company. The Circuit Court found that under Hawai'i Rules of Penal Procedure (HRPP) Rule 43, Vaimili had voluntarily absented himself from the proceedings. The Circuit Court called in the jury, advised the jurors that the [134 Hawai'i 269] trial would be continued to July 19, 2010, and asked if anyone would be unavailable. The Circuit Court excused a juror who stated that she was going back to the mainland on July 15th and replaced her with the first alternate. The Circuit Court also asked the jurors whether they had heard anything about the case outside the courtroom. The Circuit Court questioned two jurors who answered affirmatively, outside the presence of the other jurors, and also gave counsel for Vaimili and the State the opportunity to question them. The two jurors stated that what they had heard would not affect their ability to be fair and impartial, and the Circuit Court kept the two jurors on the jury. The Circuit Court then addressed the entire jury panel and instructed them to return to court on July 19th.
During the June 28, 2010, proceedings, the Circuit Court also considered Vaimili's motion to dismiss his charges for alleged discovery violations, on which the State presented the testimony of a witness, and denied the motion. In addition, Natasha Cambra (Cambra), whose case had been consolidated with Vaimili's case for trial, pleaded guilty to unlawful imprisonment pursuant to a plea agreement. The Circuit Court continued trial to July 19, 2010.
On July 19, 2010, Vaimili still had not been located. Defense counsel stated that his last contact with Vaimili had been on June 22, 2010, the day after jury selection. Defense counsel further stated that he attempted to contact Vaimili a number of times through the phone number Vaimili provided, but Vaimili never responded to those calls. Defense counsel also stated that Peppers, the head of the bail bond company, confirmed that Vaimili could not be reached at his telephone number and that Peppers was presently on the mainland searching for Vaimili.
Defense counsel objected to a trial in absentia, arguing that the public interest in continuing with the trial did not supercede Vaimili's right to be present and confront his accusers, and that the State had not shown that Vaimili was voluntarily absent. The Circuit Court, citing HRPP Rule 43, ruled in relevant part:
[T]he defendant shall be considered to have waived the right to be present whenever a defendant initially present is voluntarily absent after the hearing or trial is commenced. In this particular case, Mr. Vaimili was informed that the -- after jury selection that the trial will commence at 9:00 on the 23rd. Mr. Vaimili was instructed to be here I believe at 8:30. He had been previously admonished by this court that irregardless of what anybody might tell him that he is required to be present at all proceedings and that's why the court even imposed conditions on Mr. Vaimili short of revoking his bail.
As counsel recall there was a motion to revoke Mr. Vaimili's bail because of allegations that Mr. Vaimili had left the jurisdiction to the State of California, and the witness that would bear fruit to that was Ms. Dei Rio. However, at the hearing Ms. Del Rio had indicated that that was not correct, and therefore the court had no basis to grant the motion. However, given the seriousness of the offense, the court nevertheless imposed the conditions that it did on Mr. Vaimili only later be confronted on June ...