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State v. Williander

Supreme Court of Hawaii

April 4, 2018

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
GJ WILLIANDER, Petitioner/Defendant-Appellant.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000759; CR. NO. 14-1-1212)

          Taryn R. Tomasa for petitioner.

          Donn Fudo for respondent.

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

          OPINION

          RECKTENWALD, C.J.

         I. Introduction

         This case requires us to determine if the circuit court erred in failing to continue trial because of the unavailability of a defense witness.

         Defendant GJ Williander was charged with second degree robbery of the complainant, Kyle Aihara. On the first day of his trial, [1] Williander moved to continue because police officer Darren Sunada was unavailable to testify. Officer Sunada had arrested Williander and spoken with him shortly after the alleged robbery. Williander argued that Officer Sunada's testimony would provide important evidence regarding Williander's state of mind at the time of the incident. The State objected, noting that Officer Sunada was unavailable because he was on injured leave, and would not return to duty for several months. The circuit court denied Williander's motion.

         At trial, Aihara testified that on the night of the incident, he was walking when someone hit him from behind. Aihara said that while he heard a voice, he could not make out what was said, as he was in shock. A bystander, Michael Ragudo, testified that he observed Aihara and Williander from across the street, and heard Williander yell, "Give me your wallet, " "Give me your fucking wallet, " and saw Williander strike Aihara. After the State rested its case, Williander again moved to continue trial, and also moved for a mistrial, which the circuit court denied.

         The defense's only witness was Williander, who testified that he had no recollection of the incident because he had consumed substantial amounts of alcohol on the afternoon and night in question. Following closing arguments, Williander renewed his motion for mistrial, which the circuit court denied, and the jury found Williander guilty as charged. Williander then moved for a new trial, which the circuit court denied. On appeal, the ICA affirmed the circuit court's holdings.

         In his application to this court, Williander argues that the circuit court erred in denying Williander's motion to continue trial, motion for mistrial, and motion for new trial because of Officer Sunada's unavailability. We conclude that defense counsel exercised due diligence by properly subpoenaing Officer Sunada. We also conclude that Officer Sunada's observations provided a means for Williander to challenge Ragudo's testimony that Williander demanded Aihara's wallet. Ragudo's testimony was the only evidence presented to support finding Williander guilty of robbery rather than assault. Thus, Officer Sunada's testimony was relevant and material testimony that benefitted Williander. Accordingly, Williander's right to compulsory process to obtain witnesses in his favor was violated, and the circuit court erred in denying Williander's motions.

         We therefore vacate the ICA's judgment on appeal and the circuit court's judgment of conviction and probation sentence, and remand for further proceedings consistent with this opinion.

         II. Background

         A. Circuit Court Proceedings

         On July 29, 2014, a grand jury indicted Williander for robbery in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 708-841(1)(a). In discovery, Williander received Sheldon Matsui's statement, which included:

On June 13th, 2014 I was at 24hr Fitness on Kapiolani Blvd. and saw an older Asian male holding his wrist and another bystander telling me not to go outside. When I looked outside I saw a Polynesian male approaching people walking by on the sidewalk and faking like he was going to hit them. The Polynesian male was about 5'7 - 5'10 and about 200 - 240 lbs. He seemed disoriented and kind've [sic] stumbled down the sidewalk. He eventually walked towards Kalakaua Ave. and I lost sight of him. When I got to my car I called 911.

         Williander received a copy of Matsui's 911 call, in which Matsui described the male as a "''crazy guy with no shirt on'" that was "''trying to fight everybody.'" Williander also received a copy of Officer Sunada's written police report regarding the incident, which states that he responded to the scene at 10:28 p.m. and observed a shirtless man:

I observed the male, later identified as GJ WILLIANDER, to have curly black hair and to be about 5-9" [sic] tall. Upon making the above observations, I immediately stopped and exited my blue and white police car and identified my self [sic] to WILLIANDER as a police officer and informed him that he was being detained as a suspect in a robbery case. I then instructed WILLIANDER to place his hands behind his back. WILLIANDER complied by placing his hands behind his back while dropping to his knees and flopping to the ground on his stomach under his own power. While on the ground, WILLIANDER was handcuffed with his hands behind his back without incident and was repositioned into the seated position.
While with WILLIANDER, I was able to smell a strong odor resembling an alcoholic type beverage to be coming from his person. WILLIANDER was slurring his words and rambling unintelligible verbiage. WILLIANDER was also unsteady on his feet while walking.

         1. Motions for Continuance

         In September 2014, Williander moved for a continuance, stating that he needed more time to investigate. The State did not object, and the court granted Williander's motion. In November 2014, Williander moved for a second continuance, as there was "a matter of outstanding discovery." The circuit court granted Williander's motion over the State's objection. In February 2015, Williander requested a third continuance because his counsel's trial schedule was full. Over the State's objection, the court granted Williander's request. In April 2015, Williander requested a fourth continuance, as he was unable to secure witness Sheldon Matsui. Over the State's objection, the circuit court granted the continuance, designating it as "a last continuance for the defense." In July 2015, on the day of trial, Williander moved for a fifth continuance because Officer Sunada was unavailable to testify. This fifth motion for continuance is at issue.

         When asked for an offer of proof for his fifth motion for continuance, Williander's counsel argued that Officer Sunada was a necessary witness because: (1) he was the arresting officer; (2) the arrest occurred within a few minutes of the incident; (3) his police report had the most detailed information about "Williander's state at that time"; and (4) his testimony was important evidence "as to state of mind, an element in this case." The State objected, noting that the court had designated Williander's fourth continuance as a "last continuance, " and also stating that Officer Sunada was on injured leave, with an anticipated return for light duty in September 2015.

         Defense counsel continued his arguments stating that, without Officer Sunada, he did not "have a significant defense" because Williander's memory of the events was limited by his intoxication. Thus, defense counsel argued that it had only two helpful witnesses, Matsui and Officer Sunada, and Matsui did not have as close contact with Williander as Officer Sunada.

         Williander also stated that with regard to whether the parties could stipulate to the testimony of Officer Sunada, Williander would prefer live testimony because he only had one witness, and a stipulated police report would have "less value" than live testimony. Further, Williander stated that Officer Sunada's report had more detail about the incident because he was the person who initially detained Williander and stated his observations of Williander's intoxication.

The court denied Williander's motion, reasoning: And I'm not saying that there's a lack of diligence on your part relative to Officer Sunada because, you know, he's out. And even if you had been diligent, and I'm presuming that up to this point in time, he is out on injured leave, he's not available. But I am of the view that this case is not unduly complex and that while it is less than ideal from the standpoint of the defense strategy and availability of witnesses and other information, that at this point there's been, as I indicated, several continuances.
And while Officer Sunada might be able to provide some impeachment, as we often know police officers do do in cases like this, I'm not resting it solely on that basis. And essentially it's abuse of discretion and I don't believe on review that this will be viewed as such. And so I think the defense has had an ample opportunity to prepare and we're ready for trial and so we're going to proceed.

         2. Trial

         a. The State's Case-in-Chief

         At trial, the State's first witness was Kyle Aihara, the complainant. He testified that he is legally blind, and explained that he is not "completely blind, " but has "visual limitations." Aihara testified that on June 13, 2014, at approximately 10:20 p.m., he was walking east on Kapi'olani Boulevard, near 24 Hour Fitness, when he "felt something hit [him] from behind . . . and [he] fell to the ground." Aihara testified that he "heard a voice, " but "couldn't make it out, " as he "was kind of in shock." According to Aihara, he fell forward on his knees and his face, felt pain in his left wrist, and then "felt a presence of someone on top of [him] . . . ." Aihara stated that Michael Ragudo, whom Aihara did not know prior to the incident, helped him up and gave him his glasses, which had fallen off. Aihara testified that his wallet was still in his pocket. Aihara stated that Ragudo then assisted him into the lobby of 24 Hour Fitness, where Ragudo called the police. On cross-examination, Aihara testified that he did not have any recollection of anyone demanding his wallet, reaching into his pocket to try to take his wallet, or touching his pants.

         Michael Ragudo testified that, at 10:20 p.m. on the night in question, he was on Kapi'olani Boulevard across the street from 24 Hour Fitness when he saw "two guys kind of horsing around." According to Ragudo, he heard one guy yell "clearly" and "loudly" in the tone of a "loud demand" or "command, " "Give me your wallet, " "Give me your fucking wallet, " which indicated to him that they were not just horsing around. Ragudo testified that the "two guys were kind of struggling, " and that he heard, "Give me your wallet, " twice. Ragudo testified that he saw one man down on the ground on his hands and knees, and the other man above him "reach up and then strike down towards the back of the man's head." Ragudo stated that he then yelled and ran across the street, at which point the suspect went Ewa-bound on Kapi'olani. Ragudo stated that he gave Aihara his glasses, helped him up, and then took him into the 24 Hour Fitness lobby and called 911. According to Ragudo, when he was in the 24 Hour Fitness lobby, he saw the suspect walking back towards them and held the door closed in response. Ragudo testified that the suspect, now shirtless, was walking back and forth "agitatedly" on the sidewalk in front of 24 Hour Fitness. Ragudo testified that the police arrived five to ten minutes later. Ragudo also testified that he did "a field identification" of Williander about 15 to 20 minutes after the police arrived on the scene.

         On cross-examination, Ragudo testified that he heard the suspect demand the wallet twice, but that in his handwritten statement, referenced only one demand. Ragudo explained that "the first demand was kind of garbled, I wasn't really paying attention to it, but I clearly heard him the second time , Give me your fucking wallet, ' which was when I yelled from across the street." Ragudo agreed that he did not observe anyone go through Aihara's pockets, or see anyone pat Aihara down, and that he "just saw [Williander] on top of [Aihara] and deliver the punch." On redirect examination, Ragudo again explained that the statement, "Give me your fucking wallet, " was "shouted very loudly so I could hear ...


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