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State v. Visintin

Intermediate Court of Appeals of Hawaii

February 20, 2018

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
SHAWN D. VISINTIN, Defendant-Appellant

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CR. NO. 13-1-0166)

         On the briefs:

          Daniel G. Hempey, for Defendant-Appellant.

          Tracy Murakami, Deputy Prosecuting Attorney, Office of the Prosecuting Attorney, for Plaintiff-Appellee.

          LEONARD and GINOZA, JJ. WITH NAKAMURA, C.J., CONCURRING AND DISSENTING SEPARATELY

          OPINION

          GINOZA, J.

         Defendant-Appellant Shawn Daniel Visintin (Visintin) appeals from his conviction for the offense of Place to Keep Pistol or Revolver, in violation of Hawaii Revised Statutes (HRS) § 134-25 (2011), in the Circuit Court of the Fifth Circuit (circuit court). Visintin was convicted pursuant to a conditional no contest plea, which allowed him to pursue this appeal.[1]

         On August 7, 2012, Visintin was arrested for the offense of Place to Keep Pistol, and on the same date, he secured a bond for bail that had been set at $10, 000. Visintin was issued a "Bail/Bond Receipt, Acknowledgment, and Notice to Appear" (BBRA), which stated he was to appear at the District Court of the Fifth Circuit (district court) on September 5, 2012. As of September 5, 2012, Plaintiff-Appellee State of Hawai'i (State) had not filed any charge against Visintin and thus, on that date, the State contends that the district court discharged Visintin's bail bond as part of its "calendar call" procedure. Visintin was not present at the September 5, 2012 proceeding and the record does not reflect any documents discharging Visintin's bail bond or that he was notified that his bail bond had been discharged.

         Almost nine months after Visintin's arrest and the posting of his bail bond, and after he had returned to his home in Montana, the State issued an Indictment charging him with the offenses of Place to Keep Pistol or Revolver, in violation of HRS § 134-25 (2011) (Count 1), and Unregistered Firearm, in violation of HRS §§ 134-3(a) (2011) and 134-17(b) (2011) (Count 2). A bench warrant was also issued for Visintin's arrest.

         After being arrested in Montana pursuant to a fugitive complaint but then being released, Visintin voluntarily returned to Hawai'i for arraignment on the charges. He subsequently filed a "Motion to Suppress Evidence Based on Illegal Stop, Illegal Detention, Illegal Interrogation, Illegal Search, and Illegal Arrest" (Motion to Suppress). He also filed a "Motion to Dismiss Based on Rule 48, Speedy Trial, Right to Bail and Due Process" (Motion to Dismiss), alleging that his right to a speedy trial, right against excessive bail, and due process rights had been violated. The circuit court denied both the Motion to Suppress and the Motion to Dismiss.

         Visintin subsequently entered a conditional plea under which he pled no contest to the Place to Keep Pistol or Revolver charge, and the Unregistered Firearm charge was dismissed. Under the conditional plea, Visintin was allowed to appeal the denial of his motions.

         On appeal, Visintin argues that the circuit court erred by:

(1) denying his Motion to Dismiss because: (a) the delay in bringing him to trial after his arrest and setting of bail violated his right to a speedy trial under Hawai'i Rules of Penal Procedure (HRPP) Rule 48; (b) his right to a speedy trial under the Sixth Amendment to the United States Constitution or article I, section 14 of the Hawai'i Constitution was violated; and (c) his right against excessive bail was violated; and
(2) denying his suppression motion because the arresting officer lacked reasonable suspicion to detain him and request his identification.

         We hold that under HRPP Rule 48, the six-month time period for commencing Visintin's trial began to run when he was arrested and bail was set on August 7, 2012. Although the State contends that Visintin's bail bond was discharged pursuant to the calendar call procedure such that the time from the bail bond discharge until filing of the Indictment should be excluded, the record does not show that Visintin was notified that his bail bond was discharged. Given the circumstances in this case, we conclude that the time requirement under HRPP Rule 4 8 was exceeded. However, we conclude that Visintin's constitutional speedy trial rights were not violated, and that his demand for dismissal based on his claim of excessive bail is unwarranted.

         We further hold that the arresting officer had reasonable suspicion at the time he initially stopped Visintin, and the officer's request for Visintin's identification was proper. Thus, the circuit court properly denied Visintin's Motion to Suppress.

         The case is remanded to the circuit court for dismissal under HRPP Rule 48. On remand, the circuit court must determine whether to dismiss with or without prejudice, in the circuit court's discretion.

         I. Background

         A. Events on August 7, 2012 and Visintin's Arrest

         On August 7, 2012, Officer Brian Silva (Officer Silva) was on duty in his patrol car driving southbound on Kuhio Highway, entering the Kawaihau District of Kaua'i. Officer Silva stated that there had been "a lot of calls of burglaries and criminal activity" in the area in which he was patrolling prior to that date, but he could not name any specific incidents and was not responding to any report of criminal activity in progress at that time.

         At approximately 2:40 AM, as he approached an institution known as the Friendship House, [2] Officer Silva "saw a figure of a person running across the street from the ocean side . . . into the area of the entrance into the Friendship House." Visintin was the individual in question. Officer Silva turned on his vehicle's spotlight and began to turn into the driveway of the Friendship House where he had seen Visintin running. Officer Silva described his spotlight as "very bright." Using his spotlight, Officer Silva saw Visintin "lowered into the bushes" next to the driveway. Officer Silva stated that he wanted to see what Visintin was doing "hiding in the bushes" and that he "obviously was trespassing" by doing so. Officer Silva then activated his patrol car's blue cruise lights; Officer Silva estimated that there was "[m]aybe a second" between the time he turned on his spotlight and the time he activated his cruise lights.

         At the time he activated his spotlight, Officer Silva had determined that he wanted to "check it out, " see what was going on, and request identification. Officer Silva stated that the recent burglaries and the fact that the Friendship House appeared to be closed factored into his decision to stop and request identification from Visintin, but that he still would have checked it out, even in the absence of the burglary reports. Additionally, Officer Silva testified that the fact that Visintin ran across the road "alarmed [him] a little bit more than a regular person[, ]" but that he still would have stopped Visintin, even if he had walked across the road. Officer Silva had not heard of Visintin prior to their encounter on August 7, 2012, had no warrant to arrest or search him, and had no report that Visintin or anyone matching his description had engaged in any illegal activity.

         After turning on his cruise lights, Officer Silva immediately exited his vehicle and ordered Visintin to come out of the bushes. Visintin cooperated. As Visintin approached him, Officer Silva noted that Visintin was breathing heavily, sweating a lot, and that he could smell alcohol coming from Visintin's facial area. Officer Silva took these considerations into account when approaching Visintin.

         Officer Silva then requested identification from Visintin. Officer Silva agreed that one of the things he intended to do with Visintin's identification was to run a warrant check. Upon Officer Silva's request for identification, Visintin reached into his wallet and produced a Montana driver's license. While Visintin was getting his driver's license, Officer Silva observed a concealed weapons permit underneath the clear plastic in the wallet. This caused Officer Silva to suspect that Visintin possibly had a firearm on his person, and Officer Silva asked Visintin whether he had any weapons or "anything that might hurt me[.]" Visintin responded that he had a handgun, and Officer Silva conducted a pat down and found an unloaded Rock Island semi-automatic .45 caliber handgun in the waistband of Visintin's pants. Even if Visintin had not responded to his question, Officer Silva stated he "still would have patted him down for officer safety." After retrieving the handgun, Officer Silva advised Visintin that he was under arrest for "Place to Keep" and advised him of his constitutional rights.[3]

         B. Events After Visintin's Arrest

         Incident to his arrest on August 7, 2012, Visintin's bail was set at $10, 000. He paid approximately $1, 000 for a bail bond that was posted the same day as his arrest. A BBRA signed by Visintin on August 7, 2012, indicated a charge for "Place to Keep Pistol" and referenced an arrest report number. The BBRA also directed Visintin to appear in district court on September 5, 2012.

         On August 31, 2012, Visintin's counsel inquired via email with the assigned Deputy Prosecuting Attorney (DPA) as to whether a complaint would be filed and whether the matter would proceed on September 5, 2012. The DPA responded by email that her office had "not received the reports, so therefore no Complaint has been filed." As asserted by Visintin in his Motion to Dismiss, [4] and not disputed by the State,

By the September 5, 2012 court date . . . the [State] had not filed a Complaint or any other document related to the case.
[A]s of September 5, 2012 [, ] the State had not charged [Visintin] with any crime. The State did not file any sort of Motion to modify [Visintin's] bail status. The State provided no notice to [Visintin] that the bail bond he posted would or would not be discharged. [Visintin] was given no notice that there would be any change to his bail status. [Visintin] was not given an opportunity to be heard as to whether his bail should be changed, or his speedy trial rights derailed, or whether any ensuing delay was based on good cause.

         A video recording in the record reflects that Visintin did not appear before the district court at the September 5, 2012 proceeding, but that his case was among others that were called pursuant to the court's calendar call system. During this court session, the district court announced that for individuals called by the court, charges had not yet been filed and they were free to go, any cash bail posted would be refunded, and any bail bonds would be discharged. Visintin contends, and it is not disputed by the State, that his bail bond was apparently returned to the bondsman without notice to him, Visintin did not receive any sort of refund for the $1, 000 that he paid to the bondsman to secure the bail bond, and he at some point properly returned to his home in Montana.[5] The record does not contain any document showing a discharge of Visintin's bail bond that had been issued on August 7, 2012.

         On April 25, 2013, a Grand Jury returned the Indictment charging Visintin with the offenses of Place to Keep Pistol or Revolver and Unregistered Firearm. The Indictment concerned the conduct for which Visintin had been arrested and posted the bail bond almost nine months earlier.

         On April 25, 2013, the same day the Indictment was filed, the circuit court issued a bench warrant for Visintin's arrest and set his bail at $10, 000.[6] On April 30, 2013, the DPA sent an email to Visintin's counsel advising him that Visintin had been indicted and that there was a bench warrant for his arrest. The DPA further recommended that Visintin return to Kaua'i from Montana rather than be arrested and extradited. As of May 24, 2013, it appears that Visintin's counsel had not indicated to the DPA whether Visintin would voluntarily return to Hawai'i.

         On May 31, 2013, the County Attorney of Yellowstone, Montana filed a "Fugitive from Justice Complaint, " which stated that a warrant had been issued for Visintin's arrest, that Visintin "fled from justice or has been convicted of crimes in [Hawai'i] and has escaped from confinement or has broken the terms of his bail, probation or parole, " and that authorities in the circuit court had requested Visintin's arrest and indicated they would extradite him. Visintin alleged that this fugitive complaint was based on false representations because the fact that he had previously posted bail on the same matter was withheld from the Montana Court. Visintin was arrested by Montana authorities at his parents' home on June 1, 2013, and again posted bail, this time also for $10, 000, to secure his freedom during the Montana extradition proceedings. On June 4, 2013, however, the Yellowstone County Attorney moved to dismiss the fugitive complaint "on the grounds that it is not in the interest of justice to pursue." The Montana Court granted the motion, dismissed the case without prejudice, and exonerated Visintin's bond.

         On August 1, 2013, Visintin filed in the circuit court a motion to recall the bench warrant and to allow him to return voluntarily to Kaua'i for arraignment, to return to Montana during the pendency of the case, and be released on his own recognizance. The State did not oppose Visintin's motion. On August 6, 2013, the circuit court granted in part and denied in part Visintin's motion, denying him release on his own recognizance but reducing his bail to $100 and allowing Visintin to return to Montana pending the outcome in the case so long as he was present for all court appearances. On August 6, 2013, Visintin filed a waiver of extradition and was arrested and arraigned on Kaua'i. Visintin paid the $100 bail and was released.

         C. Visintin's Motion to Dismiss

         On August 20, 2013, Visintin filed the Motion to Dismiss, which alleged that his speedy trial rights had been violated due to the delay in bringing him to trial since his initial arrest, his due process rights were violated, and that seeking and obtaining multiple postings of bail violated constitutional prohibitions on excessive bail.

         On September 10, 2013, the circuit court held a hearing on the Motion to Dismiss. With regard to the HRPP Rule 48 time periods, the parties agreed that the 29-day period between Visintin's initial arrest on August 7, 2012 and his initial court date on September 5, 2012, should be charged to the State. The parties further agreed that the 14-day period between the arraignment on August 6, 2013 to the filing of the Motion to Dismiss on August 20, 2013, was charged to the State. However, the parties disputed the 231-day period from the day after the initial court date (September 6, 2012) to the filing of the Indictment (April 25, 2013) .[7]

         The State requested the circuit court take judicial notice that the DPA assigned to Visintin's case had been in trial with other cases from December 3, 2012 to December 11, 2012 and from January 7, 2013 to March 6, 2013. The circuit court took judicial notice that the DPA had been assigned these cases but expressed doubts as to whether this furnished good cause to exclude the time under HRPP Rule 48(c) (8) and noted that administration and assignment of cases was handled within the prosecutor's office. The State additionally requested that the circuit court take notice of the fact that 2012 was an election year for the prosecutor's office, the election was held November 6, 2012, and a new prosecutor took office on December 3, 2012.

         Arguments on the Motion to Dismiss primarily centered upon the effect of the circuit court's calendar call procedure on the 231-day contested period. To explain this procedure, the State called Vera Tabe (Tabe), Court Administrator for the circuit court, as a witness. Tabe testified that, as part of her duties, she was familiar with the calendar call list, [8] which had been in place the entire time she had been a court administrator, a period of over ten years. Tabe testified that the first step of the procedure was the generation of a calendar call list, which she described as an internal document listing defendants who had been arrested, given a court date, and posted bail or bond or been released on their own recognizance, but for whom a complaint had not yet been filed by the prosecutor's office.[9]

         Tabe explained that this list was generated by the court's receipt of defendants' BBRA forms. Tabe testified that the Kaua'i Police Department would send the original BBRA to the court, while a copy would be forwarded to the defendant. According to Tabe, after the court receives a BBRA, it is file-stamped without a case number, [10] and then it is placed in a pending file (actually a lateral drawer) for the assigned court date. A criminal number is not attached to a BBRA until a complaint is filed by the prosecutor's office.

         Tabe testified that, at the time of the court date indicated on the BBRA, the cases on the calendar call list are called "first thing in the morning by the Judge" prior to the court's normal calendar. In addressing the calendar call cases, the judge would "read the list of names of the defendants [] and indicate that no formal charges ha[d] been filed against them by the prosecutor's office, but in the future if they do proceed, they will be served with documents to appear when and where." Tabe testified that the court does not consider it a failure to appear if a defendant does not appear for the calendar call, and there are no consequences for not appearing for the calendar call proceeding.

         Tabe further testified that after the cases on the calendar call list are called, the court retains the original BBRAs. For defendants who have paid cash bail, the judge issues an unfiled order so that the defendant can go to the court's fiscal window to receive a refund of the amount paid. With regard to a defendant who posted a bail bond, Tabe testified that the judge "discharges the bond" and after the judge discharges it the defendant is no longer under the bond. The following testimony was also given:

Q: And -- and in a case where it's a bond posted, the bond is simply automatically sent back to the bonding company?
A: We don't. We keep the original BBRA, the original bond. The bond is just discharged.
Q: Okay.
A: So there is nothing more on that bond for that defendant.
Q: Okay. Is there a record kept of the time that the bond is discharged?
A: It would be just what's noted in the court proceeding on that hearing date.
Q: Is the time of the bond discharge noted in the file?
A: No.
Q: Okay.
A: Because we don't have any case ...

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