NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2022
07:55 AM
Dkt. 49 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
TROY A. SOLOMON, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FFC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and Nakasone, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from the Order Dismiss[ing] with Prejudice (Dismissal Order),
entered on March 13, 2019, in the Family Court of the First
Circuit (Family Court).1/ The Family Court dismissed the
January 22, 2019 Complaint charging Defendant-Appellee Troy A.
Solomon (Solomon) with Abuse of Family or Household Members, in
violation of Hawaii Revised Statutes (HRS) § 709-906(1) and (9)
Supp. 2018).2/
1/
The Honorable Na#unanikina#u A. Kamali#i presided.
2/
At the time of the alleged offense in 2019, HRS § 709-906 stated,
in relevant part:
Abuse of family or household member; penalty. (1) It
shall be unlawful for any person, singly or in concert, to
physically abuse a family or household member. . . .
For purposes of this section:
. . . .
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
On appeal, the State contends that: (1) the Family
Court abused its discretion in dismissing the Complaint with
prejudice based on the factors stated in State v. Estencion, 63
Haw. 264, 269, 625 P.2d 1040, 1044 (1981); (2) assuming arguendo
that the Estencion factors apply to a dismissal at the
preliminary hearing stage, the Family Court incorrectly applied
them; and (3) the Family Court erred when it found that the State
did not prove the complaining witness's (CW) unavailability under
a "probable cause" standard.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we conclude
that the Family Court abused its discretion in dismissing the
Complaint with prejudice.
"The use of a trial court's inherent power to dismiss a
criminal charge with prejudice is reviewed for abuse of
discretion." State v. Kapalski, No. CAAP-XX-XXXXXXX, 2019 WL
2417753, at *5 (Haw. App. June 10, 2019) (mem.) (citing State v.
Kostron, No. 30217, 2012 WL 4478586, at *2 (Haw. App. Sept. 28,
2012) (SDO)). "The trial court abuses its discretion when it
clearly exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant." Id. (quoting State v. Plichta, 116 Hawai#i 200,
214, 172 P.3d 512, 526 (2007)).
2/
(...continued)
"Family or household member":
(a) Means spouses or reciprocal beneficiaries,
former spouses or reciprocal beneficiaries,
persons in a dating relationship as defined
under section 586-1, persons who have a child in
common, parents, children, persons related by
consanguinity, and persons jointly residing or
formerly residing in the same dwelling unit[.]
. . . .
(9) Where physical abuse occurs in the presence of a
minor, as defined in section 706-606.4, and the minor is a
family or household member less than fourteen years of age,
abuse of a family or household member is a class C felony.
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
On March 7, 2019, the Family Court held a preliminary
hearing in this case.3/ During the hearing, the State attempted
to establish CW's unavailability pursuant to Hawai#i Rules of
Penal Procedure (HRPP) Rule 5(c)(6).4/ The State asserted that
Justin Endo (Endo) and Blaise Atabay (Atabay), investigators for
the prosecutor's office, would "testify that they were unable to
serve [CW]; that she's uncooperative; . . . that she is
essentially evading service." Endo and Atabay then testified as
to their unsuccessful efforts to serve CW. Following their
testimony, the State "move[d] for unavailability of [CW]." The
Family Court denied the motion, stating in part:
Court listened very carefully to all of the efforts of
the Prosecutor's Office to investigate this case and to go
to [CW's] house and to serve her with the subpoena. . . . I
heard that multiple phone calls were made. But I didn't
hear any testimony as to why she may not be there. . . .
So I'm not -- do not find that there is probable cause
to at least sustain your assertion that she was unavailable.
So I am ruling in favor of the defense in this matter. I
think the prosecution can make greater efforts to serve
[CW], in which case she would be here. And you could make
that argument, but I don't find that those efforts were made
by your investigators.
The Family Court then granted the State's request to continue the
preliminary hearing.
On March 13, 2019, the parties appeared for the
continued preliminary hearing and the State requested a further
continuance. The State explained in part that the prosecutor's
office investigators spent about four hours at the residence, but
"[u]nfortunately no one answered, and the investigators were
unable to serve the [CW] despite the efforts made." Solomon
asked the Family Court to dismiss the case, but deferred to the
3/
The preliminary hearing was initially set for February 14, 2019;
however, Solomon did not appear. A bench warrant was issued and bail was set
at $50,000. On March 1, 2019, a hearing was held to address Solomon's motion
to set aside issuance of the bench warrant and to reinstate bail. At that
time, the State indicated it was ready to proceed with the preliminary
hearing, but the court set the hearing for March 7, 2019. The Honorable Linda
S. Martell presided over the February 14, 2019 and March 1, 2019 proceedings.
4/
HRPP Rule 5(c)(6) states, in relevant part: "The finding of
probable cause may be based in whole or in part upon hearsay evidence when
direct testimony is unavailable or when it is demonstrably inconvenient to
summon witnesses able to testify to facts from personal knowledge."
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
court whether to dismiss with or without prejudice. The Family
Court stated:
There's been a significant amount of time, and it's been the
Court's concern. I'm not the first judge to hear this
motion to continue. Judge Martell also granted a motion to
continue.
So at this time the Court does not find good cause to
continue the matter.
Following arguments concerning whether the dismissal should be
with or without prejudice, the Family Court dismissed the case
with prejudice, stating:
As to the Estencion factors, yes, the Court can see that
with regard to the charge of Abuse of Household Member, this
is being a preliminary hearing as a felony. The State has
put great effort into trying to locate their . . . witness.
And I also take note, counsel, how long this matter has
taken, the number of continuances as well, and the State's
inability to produce the witness.
But also at the . . . same time, with the passage of
time, the Court is to look at the -- you know, the evidence
and the prejudice to defendant. The number of times that he
has come to court. Granted, you've been subpoenaed a couple
of times and there's -- not subpoenaed, but you've been
bench warranted to be here. There are other matters that
are pending that aren't related to this.
But at this time, based on the factors, I am going to
dismiss it with prejudice.
The State contends that the Family Court "abused its
discretion when it erroneously applied the Esten[c]ion factors to
a dismissal at the preliminary hearing stage before HRPP Rule 48
expired." The State does not argue that dismissal was
unwarranted; rather, the State argues that "the court should have
dismissed this case without prejudice."
In response, Solomon contends that the "oral order
dismissing the Complaint with prejudice is vague and confusing,
and its written order lacks specificity[.]" (Formatting
altered.) Solomon argues that "the case must be remanded for
clarification in order to allow the appellate court 'to engage in
a conscientious appellate review.[']"
The Family Court's oral ruling dismissing the Complaint
is not a model of clarity. However, it appears that the Family
Court dismissed the Complaint due to the amount of time that had
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
passed, the State's inability to produce CW, and previous
continuances. It is undisputed that HRPP Rule 48 was not
violated. We thus view the Family Court's dismissal with
prejudice as an exercise of its inherent power to "administer
justice." State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705, 712
(1982); accord State v. Alvey, 67 Haw. 49, 57, 678 P.2d 5, 10
(1984) (holding that the trial court has inherent power to
dismiss a criminal charge with prejudice under certain
circumstances).
The Family Court's power in this respect "is not
unbounded." Kapalski, 2019 WL 2417753, at *6. "The court must
balance the interests of the state against fundamental fairness
to the defendant, with the added ingredient of the orderly
functioning of the court system." Id. (citing Moriwake, 65
Hawai#i at 55-56, 647 P.2d at 712). "For example, the court acts
within its discretion when dismissing charges after two
mistrials," but "abuses that discretion when dismissing prior to
the first trial for comity or judicial economy absent a due
process violation or misconduct that represents a serious threat
to the integrity of the judicial process." Id. (comparing
Moriwake, 65 Hawai#i at 57, 647 P.2d at 713 with Alvey, 67 Haw.
at 57, 678 P.2d at 10-11). Similarly, "[t]he court acts within
its discretion when it dismisses after more than two years of
failure to prosecute and errors in charges, but abuses that
discretion when dismissing merely because the [deputy prosecuting
attorney] had not personally spoken to the complainant." Id.
(comparing Kostron, 2012 WL 4478586, at *2-3 with State v.
Correa, 124 Hawai#i 179, 185, 238 P.3d 706, 712 (App. 2010)).
Here, the Family Court did not issue written factual
findings supporting the Dismissal Order. Nonetheless, the record
is sufficient for this court to make a determination of whether
the Family Court abused its discretion in dismissing the
Complaint with prejudice. See Kapalski, 2019 WL 2417753, at *7
(citing State v. Hern, 133 Hawai#i 59, 64-65, 323 P.3d 1241,
1246-47 (App. 2013)); State v. Marquez, No. CAAP-XX-XXXXXXX, 2021
WL 840910, at *2 (Haw. App. Mar. 5, 2021) (SDO). Specifically,
the Family court stated on the record that it was dismissing the
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
charges because of the amount of time that had passed (roughly
seven weeks from the filing of the Complaint), the State had been
unable to produce CW within that time (despite "great effort" by
the State), and previous continuances (only one of which was at
the State's request). There was no mention or suggestion, and we
find no evidence in the record, of a due process violation or any
misconduct representing a serious threat to the integrity of the
judicial process.
On this record, we conclude that the Family Court
abused its discretion in dismissing the Complaint with prejudice.
Given our conclusion, we do not reach the State's remaining
contentions.
For the reasons discussed above, we vacate the Order
Dismiss[ing] with Prejudice, entered on March 13, 2019, in the
Family Court of the First Circuit, and remand the case with
instructions to dismiss the Complaint without prejudice.
DATED: Honolulu, Hawai#i, June 27, 2022.
On the briefs:
/s/ Katherine G. Leonard
Chad M. Kumagai, Presiding Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
William H. Jameson, Jr.,
Deputy Public Defender,
for Defendant-Appellee. /s/ Karen T. Nakasone
Associate Judge
6