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Moana v. Wong

Supreme Court of Hawaii

November 21, 2017

SI UFAGA MOANA, Petitioner,
v.
THE HONORABLE FRANCES Q. F. WONG, Judge of the Family Court of the First Circuit, State of Hawai'i, Respondent Judge, and STATE OF HAWAI'I, Respondent. JAYVAN C. CURIOSO, Petitioner,
v.
THE HONORABLE HILARY BENSON GANGNES, Judge of the District Court of the First Circuit, Honolulu Division, State of Hawai'i, Respondent Judge, and STATE OF HAWAI'I, Respondent.

         ORIGINAL PROCEEDINGS, Nos. 1FFC-17-0000575, 1DCW-17-0000868

          Jon N. Ikenaga for petitioners.

          Rafael K. Renteria for respondent in SCPW-17-0000532.

          Leigh M. Okimoto for respondent in SCPW-17-0000171.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          POLLACK, J.

         Petitioner Si Ufaga Moana (Moana) seeks a writ of mandamus directing the Honorable Frances Q. F. Wong to order his release forthwith from custody in accordance with the requirement that a defendant be released upon motion if a preliminary hearing has not commenced within two days of the defendant's initial appearance. See Hawai'i Rules of Penal Procedure (HRPP) Rule 5(c)(3) (2014). Petitioner Jayvan C. Curioso (Curioso) also seeks a writ of mandamus directing the Honorable Hilary Benson Gangnes to order his release forthwith from custody in accordance with the two-day preliminary hearing requirement.

         Because the State respectively charged Moana and Curioso (petitioners) by information and grand jury indictment during the pendency of these petitions, obviating the need for preliminary hearings, we ultimately deny the petitions as moot. We nonetheless consider the legal issues at the heart of these cases based on an exception to the mootness doctrine because they are capable of repetition but would otherwise evade review.

         Under our rules of court, when a delay in the commencement of a preliminary hearing is not caused by a defendant's condition, action, or request and occurs without the defendant's consent, the keeping of a defendant in custody is permitted only when compelling circumstances justify an ongoing deprivation of liberty. HRPP Rule 5(c)(3). We now provide guidance as to when circumstances are compelling for purposes of denying a defendant's motion for release from custody when the defendant is held for a period of more than two days after initial appearance without commencement of a preliminary hearing.

         I. FACTS AND PROCEDURAL HISTORY

         A. Moana's Arrest and Preliminary Hearing

         On June 20, 2017, police arrested Moana for assault in the second degree in violation of Hawaii Revised Statutes (HRS) § 707-711 (2014 & Supp. 2016). On June 22, 2017, Moana was charged by complaint with abuse of family or household members, which was statutorily enhanced to a class C felony due to the alleged incident occurring in the presence of a minor household member under the age of 14. HRS § 709-906(1), (9) (Supp. 2016). The same day, Moana made his initial appearance before the Family Court of the First Circuit (family court); the family court confirmed bail at $30, 000 and issued an order scheduling a preliminary hearing for June 26, 2017.[1]

         On the day of the preliminary hearing, the State requested a continuance, informing the family court that the complaining witness had "absented herself" from the proceeding. The prosecutor stated that the complainant had expressed a reluctance to come to court when she was served on the preceding Friday by the prosecuting attorney's investigators but did not indicate that she did not intend to appear. The prosecutor explained that he had since been contacted by the complainant's aunt, who informed him that she had taken food to the airport to give to the complainant and her child. Based on this information, the prosecutor stated that he was not sure whether the complaining witness was present on the island. He requested additional time to locate and secure the complainant's cooperation, explaining that his office might obtain a material witness order if she was found on the mainland and refused to return voluntarily. The prosecutor advised the court that, because Moana's initial appearance was on June 22, 2017, "the 30 days for preliminary hearing would run on Saturday, July 22nd" and requested that the hearing be rescheduled before that date.[2]

         Moana moved to dismiss the complaint or, in the alternative, for the family court to set aside bail and release him on his own recognizance to the supervision of his church pastor or mother, who were present in the courtroom. The prosecutor opposed Moana's motion, citing the nature of the offense. He explained that the complainant was thirty-three-weeks pregnant at the time Moana allegedly bit and punched her, causing injury to her ear and a possible concussion. He further stated that the argument leading to the incident arose because the complaining witness asked for money to buy food for her and Moana's two-year-old child. The prosecutor asserted that the child was present during the events and Moana allegedly threw Lego-style blocks at the child's head, causing bruising.[3] He also pointed to Moana's 2014 arrest for abuse of the same complaining witness, contending that the alleged attack was an escalation of violence toward the individual and that Moana might be a danger to her. Lastly, the State argued that there had been "some obstruction" from Moana's family during the investigation, making release into their custody inappropriate. Taken together, the State concluded, these factors were compelling reasons to continue the hearing and to keep Moana in custody.

         The family court granted the State's motion for a continuance and denied Moana's motion for dismissal of the complaint. Seemingly relying on the State's assertion regarding the thirty-day period in which a preliminary hearing must be held, the court noted that the "hearing [had been] set very expeditiously within the 30-day limit, " which left the court free to continue it without legal obstacle.

         With respect to bail reduction, the family court noted several factors guiding its discretion in setting or modifying bail, including Moana's criminal history, the nature of the offense, and the vulnerable nature of the complainant and their child.[4] The prosecutor asked for clarification regarding whether these findings relating to bail also constituted compelling reasons for the continuance and for keeping Moana in custody, to which the court answered affirmatively.

         The family court confirmed bail at $30, 000 and scheduled the continued preliminary hearing for July 13, 2017, which was 15 days after Moana's initial appearance. The court informed the prosecutor that it had intentionally left time before the presumed 30-day deadline for another continuance if necessary, but it went on to warn that "the next time ... if the complaining witness fails to appear . . . [the State] need[s] a lot more information than what somebody might have said." Prior to the continued hearing date, Moana filed with this court a petition for a writ of mandamus.

         B. Curioso's Arrest and Preliminary Hearing

         Police arrested Curioso on March 10, 2017, for abuse of family or household members, HRS § 709-906 (2014 & Supp. 2016). On March 13, 2017, Curioso was charged by complaint in the District Court of the First Circuit (district court) with kidnapping, HRS § 707-720(1)(d) (2014), terroristic threatening in the first degree, HRS § 707-716(1)(e) (2014), and abuse of family or household members with a statutory enhancement to a class C felony based on the charged conduct, HRS § 709-906(1), (8). Bail was set at $150, 000 in the aggregate, and a preliminary hearing was scheduled for March 15, 2017.

         On the day of the preliminary hearing, the prosecutor requested a continuance to March 21, 2017, to obtain a Tagalog interpreter for the complainant, for whom English was a second language. Curioso objected and moved for release on his own recognizance or, in the alternative, a reduction in bail. The court denied Curioso's requests and granted the State's motion for a continuance. The court explained that the State's request was "reasonable" given that an interpreter was "necessary for the witness to give testimony" and the State was otherwise ready with its witnesses. The preliminary hearing was rescheduled by the court to March 21, 2017, which was six days after Curioso's initial appearance.[5] On March 16, 2017, Curioso filed a petition for a writ of mandamus.

         II. THE PETITIONS FOR WRITS OF MANDAMUS

         Moana and Curioso argue that the judges in their individual cases violated HRPP Rule 5(c)(3) by denying their respective motions for release on their own recognizance. This rule requires that a court release a defendant upon motion "if the defendant is held in custody for a period of more than 2 days after initial appearance without commencement of a defendant's preliminary hearing." HRPP Rule 5(c)(3). However, the State may maintain custody of a defendant when the delay is caused by the defendant or occurs with the defendant's consent. Id. Release is also not required when the failure to commence a timely preliminary hearing is attributable to a "compelling fact or circumstance" that would preclude determination of probable cause or commencement of the hearing or would render the defendant's "release to be against the interest of justice." Id.

         In his petition for a writ of mandamus, Moana argues that a preliminary hearing did not commence within two days from his initial appearance, obligating the family court to release him upon his motion. Moana states that the court appeared to base its ruling denying his release on a finding of a compelling fact or circumstance. He disputes, however, that compelling reasons existed to hold him in custody under any of HRPP Rule 5(c)(3)'s exceptions. In its response, the State argues that the court properly found compelling reasons to keep Moana in custody, including Moana's criminal history, the nature of the alleged offense, and the vulnerable nature of the complainant and their child.

         In his petition, Curioso similarly argues that a preliminary hearing did not commence within two days of his initial appearance and that none of HRPP Rule 5(c)(3)'s exceptions justified his continued detention. He asserts that the State's failure to obtain an interpreter for the complainant was neither a compelling circumstance precluding the commencement of a preliminary hearing within two days of his initial appearance nor one rendering his release against the interest of justice. He points out that the State had five days to speak with the complainant following his arrest to determine if an interpreter was needed for the preliminary hearing.

         The State responds that it diligently attempted to find an interpreter as soon as the complainant requested one. In a declaration attached to the State's response, the prosecutor who requested the continuance avers that her review of case materials prior to the hearing did not reveal a need for an interpreter and that she was not informed of the request until the morning of the scheduled preliminary hearing. She further avers that the State's victim witness advocate made calls to ten different interpreters but was unable to arrange one for the scheduled time. The prosecutor also states that she was unable to convince the complainant to proceed without an interpreter. The prosecutor does not aver that any of this information was placed on the record on the date of the scheduled hearing.

         The State asserts that the lack of an interpreter to aid the complainant in her testimony constituted a compelling circumstance that justified the district court's decision to not release Curioso. In support of its argument, the State points to this court's repeated pronouncements regarding the fundamental importance of individuals involved in litigation understanding the proceedings and being understood in turn.

         III. DISCUSSION

         A. Mootness

         As a threshold matter, we address whether the merits of the petitions are properly considered by this court. We have long adhered to certain "prudential rules of judicial self-governance 'founded in concern about the proper--and properly limited--role of the courts in a democratic society.'" Kona Old Hawaiian Trails Grp. v. Lyman, 69 Haw. 81, 87, 734 P.2d 161, 165 (1987) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)); Cty. of Haw, v. Ala Loop Homeowners, 123 Hawai'i 391, 405, 235 P.3d 1103, 1117 (2010). Among these is the doctrine of mootness, which typically limits our rulings to "live controvers[ies] of the kind that must exist if courts are to avoid advisory opinions on abstract propositions of law." Kona, 69 Haw. at 87, 734 P.2d at 165 (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)). Accordingly, we will generally refrain from deciding cases in which we can no longer grant the relief a party seeks. Ala Loop Homeowners, 123 Hawai'i at 405, 235 P.3d at 1117 (citing Kaho'ohanohano v. State, 114 Hawai'i 302, 332, 162 P.3d 696, 726 (2007)).

         When a defendant is indicted or charged by criminal information, a preliminary hearing need not--and, under our rules, cannot-be conducted. HRPP Rule (5) (c) (1) (2014).[6] This is because a complaint and preliminary hearing, indictment, and criminal information are separate, parallel methods by which a felony prosecution may be initiated. See Haw. Const, art. I, § 10; HRPP Rule 7(a)-(b) (2012). The "real purpose" of a preliminary hearing is to confirm that probable cause exists to hold a defendant in custody, "and no purpose remains for" the hearing when probable cause is established through another mechanism, including indictment. Chung v. Ogata (Ogata I), 53 Haw. 364, 366, 493 P.2d 1342, 1343 (1972) (citing State v. Tominaga, 45 Haw. 604, 372 P.2d 356 (1962)). We have thus held that both a defendant's right to a preliminary hearing and a trial court's jurisdiction to conduct such a hearing are cut off by an indictment, even when it is returned after the continuance of the preliminary hearing. ...


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