State v. VINHACA

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No. 28571

lN THE SUPREME COURT OF THE STATE OF HAWAI‘l

STATE oF HAwAI‘:, Resp@ndent-Plaintiff-Appeiiee,

vs. _
ARTHUR VINHACA, Petitioner-Defendant~AppellantQ; §§
__¥: ¥;
CERTIORARI TO THE INTERMEDlATE COURT OF APPEAf;` 'F
(Fc-CR. No. 06-1»-0088)
MEM@RANDUM oP:N:oN w
(By: Moon, C.J., Nakayama, Duffy and Recktenwald§ JJ..r

and Acoba, J., Dissenting)

Petitioner-Defendant-Appellant Arthur Vinhaca

(“Vinhaca”) filed a timely application for a writ of certiorari

seeking review of the judgment of the lntermediate Court of

Appeals (lCA) filed May 22, 2009, entered pursuant to the summary

disposition order filed April 29, 2009 in State v. Vinhaca, No.

2857l (App. Apr. 29, 2009) (SDO) which affirmed the April 30,
2007 judgment of the circuit court of the fifth circuit.1 This

court accepted certiorari on September 30, 2009, and oral

argument was held on November l9, 2009. Vinhaca asserts that the
lCA gravely erred by affirming the circuit court’s decision to
allow the introduction of preliminary hearing testimony after

holding that one of the witnesses was unavailable.2 For the

1 The Honorable Kathleen N.A. Watanabe presiding.

7

Vinhaca also asserts that he did not have an adequate opportunity
to cross-examine his unavailable daughter and that the prosecutor committed

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following reasons, we affirm the lCA's May 22, 2009, judgment on
appeal.

I. BACKGROUND_
The State of HawaiU.(“the prosecution”) charged
Vinhaca with nine counts of Sexual Assault in the Third Degree in
violation of HawafiVRevised Statutes (HRS) § 707-732 (Supp.
2008),3 one count of Assault in the Second Degree in violation of

HRS § 707~7ll(l)(d) (l993),4 five counts of Abuse of Family and

2...continue
prosecutorial misconduct. Upon careful review of the record and the briefs
submitted by the parties, we conclude that these arguments are without merit.

3 HRS § 707-732 provides in relevant part:

(l) A person commits the offense of sexual assault in
the third degree if:

(b) The person knowingly subjects to sexual
contact another person who is less than fourteen years
old or causes such a person to have sexual contact
with the person;

(c) The person knowingly engages in sexual
contact with a person who is at least fourteen years
old but less than sixteen years old or causes the
minor to have sexual contact with the person; provided

that:

(i) The person is not less than five years

older than the minor; and
(ii) The person is not legally married to

the minor[.]

4 At the time of the charged offense, HRS § 707~7ll(l)(d) provided

in relevant parts

(l) A person commits the offense of assault in the
second degree if:

(d) The person intentionally or knowingly causes
bodily injury to another person with a dangerous
instrument[.]

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Household Members in violation of HRS § 709-906 (Supp. 2009),5
and two counts of Sexual Assault in the First Degree in violation
of HRS § 707~730(l)(b) (Supp. 2008),6 arising from Vinhaca’s
alleged abuse of his two minor daughters, Daughter l and Daughter
2, between 2003 and 2005. Both Daughters testified at the
preliminary hearing, but only Daughter 2 appeared at trial.

AThe aeughtere testified et the Juiy 25, 2007
preliminary hearing as follows. Daughter 2 testified that when
she was fourteen, Vinhaca touched her breasts and her “private
parts.” She testified Vinhaca used to “twist [her] nipples” with
his hand and “used to make [his daughters] whistle and he
wouldn't want to stop until [they] whistle[d].” Rebecca Seiter,
Daughter 2’s therapist, testified that Daughter 2 told her
Vinhaca “often did that when he was upset with [Daughter 2's]
mother, so that she would hear the whistle and know that her
daughter was being hurt or touched.” This happened “about three

times a week” when Daughter 2 was fourteen. She also testified

5 HRS § 709-906(l) provides:

(l) lt shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member .

6 HRS § 707-730(l)(b) provides:

(l) A person commits the offense of sexual assault in
the first degree if:

(b) The person knowingly engages in sexual

penetration with another person who is less than
fourteen years old[.]

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that Vinhaca touched and rubbed her vagina through her clothes
and sucked her breasts. Vinhaca “would make [her] lay inside the
bed with him” and would rub her vagina with his penis through her
clothes. He also hit her over the head with a large steel wrench
because she did not clean his tools well enough.

Daughter l testified that, when she was eleven, Vinhaca
would pinch her nipples until she whistled to stop. This
happened “every day” until she moved out of Vinhaca's house. She
also testified that Vinhaca touched and rubbed her vagina with
his hand and would undress, lay on her, and touch his penis to
her vagina. She testified that “two or three times” he put his
penis into her vaginal opening. She also testified that he put
his fingers in her genital opening, and put his mouth on her
genital opening.

On January 22, 2007, the prosecution moved to sever the
trial because it could not locate Daughter l. The declaration of
the prosecuting attorney stated that in “preparing for this
trial, Counsel learned that [Daughter l] is on runaway status.”
The declaration also stated that “[a]s of now, it is doubtful
that [Daughter l] will be available for trial on February 5,
2007.”

On February l, 2007, the circuit court held a hearing

on the prosecution’s motion to sever. At the hearing, the

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prosecuting attorney stated:

THE COURT: Okay. And, once again, the basis of this
motion is the problem with a witness, with the complaining
witness, -
[PROSECUTING ATTORNEY]: Yes, and so your Honor is up
to date on that issue, we did -- the witness that we’re
having difficulty with is a minor. We have actually served
the guardian with a subpoena to bring that minor to court.
However, we have been informed that she is not being [sic]
able to be located right now.

We have an understanding where she is, but it appears
that she’s kind of in hiding. We have had our investigator
go out and try to find her himself, but for your Honor’s
knowledge, we have actually served the person we needed to
serve, which is the CWS . . . worker.

The motion to sever was denied and Vinhaca's trial
began on February 5, 2007. Daughter l did not appear at trial,
and Daughter 2 essentially recanted the testimony she had given
at the preliminary hearing. The prosecution requested that the
circuit court play the tape of Daughter 2’s preliminary hearing
testimony for the jury. The circuit court granted this request
and Daughter 2’s preliminary hearing testimony was played for the
jury.

After Daughter 2’s preliminary hearing testimony was
played, Karla Huerta (“Huerta”), a social services worker for the
Department of Human Services (“DHS”) testified about the efforts
made to locate Daughter l. She testified that on January 25,
2007, she was served with a subpoena “to bring [Daughter l] to
court for this trial[.]” She testified that she was unable to
bring Daughter l to trial because Daughter l was “on the run.”

Daughter l first ran away on October 3l, 2006, and “has been

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picked up on four different occasions, but has continued to run
away from the program.” Daughter l was “last picked up on
January l6th, and then she ran away within an hour of that time.”

Huerta testified that in the several days before trial
she contacted the “juvenile delinquent program to help see if
they’ve heard of anything” and that they “printed something in
the newspaper.” She went to Daughter l’s mother’s home, where
Daughter l has resided on numerous occasions, “contacted the
schools[,]” and talked to “many people in the community”
including police officers. She called police officers to see if
they have “seen or heard of her recently because of this court
hearing.” On cross-examination, she testified that when the
sheriff served her, she told him that Daughter l was not with
her, She also testified that prior to being served, she could
not locate Daughter l.

fhe prosecution then requested that the circuit court
play the tape of Daughter l’s preliminary hearing testimony for
the jury. The circuit court granted the request over the
objection of the defendant.

At the close of trial, upon agreement by the
prosecution and Vinhaca, the circuit court dismissed five counts.
The jury found Vinhaca guilty of one count of first-degree sexual

assault, in violation of HRS § 707-730(l)(b) (Supp. 2008); one

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count of first-degree attempted sexual assault, in violation of
HRS §§ 707-730(l)(b) and 705-500 (l993); one count of
second-degree assault, in violation of HRS § 707-7ll(l)(d)
(l993); and eight counts of third-degree sexual assault, in
violation of HRS § 707-732 (Supp. 2008).

Vinhaca appealed to the ICA asserting that the circuit
court’s decision to allow the introduction of Daughter l’s
preliminary hearing testimony violated the Confrontation Clause
because the prosecution failed to prove Daughter l’s
unavailability. The ICA concluded that “the admission of
Daughter l’s preliminary hearing testimony did not violate
Vinhaca's right of confrontation.” Vinhaca, SDO at 4. The lCA
held that the “circuit court did not err in finding that Daughter
l was unavailable” because the “State presented evidence that it
had served Daughter l’s legal custodian, Karla Lynn Huerta, a
social worker for the Department of Human Services, with a
subpoena to bring Daughter l to trial.” ld; at 5. The lCA also
relied on Huerta’s testimony “that she was unable to comply with
the subpoena because Daughter l had run away and Daughter l’s
whereabouts were unknown.” ld; The lCA noted that Daughter l
ran away three weeks before trial and that Huerta had been unable
to locate Daughter l. ld; Huerta was unable to locate Daughter

l “despite efforts that included providing pictures of Daughter l

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to the juvenile delinquency program and having them publish a
request for assistance in locating Daughter l in a newspaper;
looking for Daughter l at her mother’s home; and contacting
Daughter l’s school, people in the community, and the police in
an effort to ascertain her whereabouts.” ld; The lCA concluded
that the circuit court did not err in finding that Daughter l was
unavailable, and affirmed the April 30, 2007, judgment of the
circuit court. ;Q; at 7.

II. STANDARDS OF REVIEW

A. Certiorari

The acceptance or rejection of an application for writ
of certiorari is discretionary. HRS § 602-59(a) (Supp. 2009).
“ln deciding whether to accept an application, this court reviews
the decisions of the ICA for (l) grave errors of law or of fact
or (2) obvious inconsistencies in the decision of the lCA with
that of the supreme court, federal decisions, or its own
decisions and whether the magnitude of such errors or
inconsistencies dictate the need for further appeal.” State v.
Wheeler, l2l HawaiU_383, 390, 2l9 P.3d ll70, ll77 (2009) (citing
HRS § 602-59(b)).
B. violation of Right To Confrontation

Whether the prosecution has adequately shown “the

‘unavailability' of a witness-for the purpose of satisfying the

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confrontation clauses of the United States and Hawafi
Constitutions-is, at the first level of analysis, a question of
fact for the trial court to decide, involving a determination of
the nature of the prosecution's ‘good faith’ efforts to secure
the witness’s presence at trial.” State v. Lee, 83 Hawafi 267,
273, 925 P.2d 1091, 1097 (1996). Findings of fact are reviewed

under the clearly erroneous standard. ld. (citing State v.

Ganal, 81 Hawai‘i 358, 368, 917 P.2d 370, 380 (1996); Tachibana

v. State, 79 HawaFi 226, 23l, 900 P.2d 1293, 1298 (l995); State

v. Furutani, 76 Hawai‘ir172, 179, 873 P.2d 51, 58 (1994)). A

finding of fact is clearly erroneous when “despite evidence to
support the finding, the appellate court is left ‘with the

definite and firm conviction that a mistake has been committed.’”

1d. (quoting Ganal, 81 HawaiH at 368, 917 P.2d at 380;

Teehibene, 79 Hewei‘i et 231, 900 P.za et 1293,- Feruteei, 76

HawaiYi at 179, 873 P.2d at 58).

“At the second level of analysis, we ask whether the
facts as found amount to a legally adequate good faith effort to
confront the defendant with his accusers. This is a question of
federal and/or state constitutional law, and we answer it by
exercising our own ‘independent constitutional judgment [based]
on the facts of the case.’” lg4 (some internal quotation marks

omitted) (quoting Crosbv v. State Dep’t of Budget & Fin., 76

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Hawafi 332, 341, 876 P.2d 1300, 1309 (1994))f “1n other words,
‘application of constitutional principles to the facts as found

requires us to examine the entire record and make an
independent determination . . . based upon that review and the
totality of the circumstances[.]’” ldL (quoting State v. Hoey,
77 Hawai‘i 17, 32, 881 P.2d 504, 519 (1994)).

III. DISCUSSION

A. The ICA Did Not Gravely Err By Affirming the Trial Court's
Determination That Daughter 1 Was Unavailable.

1n his application, Vinhaca asserts that the lCA
gravely erred by holding that Daughter 1 was unavailable for
trial. He asserts that the admission of prior testimony violated
the Confrontation Clause.7

Preliminary hearing testimony from an unavailable
witness is testimonial hearsay. State v. Fields, 115 Hawafi
503, 513, 168 P.3d 955, 965 (2007) (quoting Crawford v.
Washington, 541 U.S. 36, 64, 68 (2004)). Testimonial hearsay “is
admissible ‘only where the declarant is unavailable, and only

where the defendant has had a prior opportunity to cross-examine’

7 ln his application, Vinhaca did not specify which constitution his
confrontation claim is based upon. This court has stated that the
“confrontation clause contained within article l, section 14 of the HawaiH
Constitution is virtually identical to the confrontation clause of the sixth

amendment to the United States Constitution.” State v. Fields, 115 Hawafi
503, 517, 168 P.3d 955, 969 (2007). However, in State v. Lee, 83 Hawafi 267,

278, 925 P.2d l091, 1102 (l996), this court adopted a test for unavailability
not yet endorsed by the United States Supreme Court. As discussed below, we
conclude that under either test, the admission of Daughter l’s preliminary
hearing testimony did not violate Vinhaca’s right to confront Daughter l.

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[the declarant] about the statement.” lQ; (quoting Crawford, 541
U.S. at 59).

In determining whether the declarant is unavailable,
the United States Supreme Court has held that the prosecution
must prove that it made a “good faith” effort to secure the
presence of the unavailable witness. Ohio v. Roberts, 448 U.S.
56, 74 (1980) (quoting Barber v. Pa e, 390 U.S. 719, 724-25
(1968)), overruled on other grounds by Crawford, 541 U.S. at 60-
61, 68-69. The State's obligation to make a good faith effort is
“context-specific . . . .” Hamilton v. Morgan, 474 F.3d 854,
858-59 (6th Cir. 2007); see also 30B Michael Graham, Federal
Practice & Procedure § 7072 at 736-40 (2006) (“Whether the
government has shown good faith in attempting to first locate and
second procure the witness’ attendance by process or voluntarily
by reasonable means must be determined on a case-by-case basis
after careful review of the particular facts and circumstances.”)
(emphasis added) (footnotes omitted). For instance, the Supreme

Court explained that:

The law does not require the doing of a futile act.

Thus, if no possibility of procuring the witness exists (as,
for example, the witness’ intervening death), “good faith”
demands nothing of the prosecution. But if there is a
possibility, albeit remote, that affirmative measures might
produce the dec1arant, the obligation of good faith may
demand their effectuation.

Roberts, 448 U.S. at 74 (emphasis in original).

The Supreme Court also emphasized that the “lengths to

ll

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which the prosecution must go to produce a witness . . . is a
question of reasonableness.” ld; (quoting Ca1ifornia v. Green,
399 U.S. 149, 189 n.22 (1970) (Harlan, J., concurring)). To
satisfy the unavailability requirement of the United States
Constitution, the prosecution must show that “the witness is
unavailable despite good-faith efforts undertaken prior to trial
to locate and present that witness.” lQ; at 74-75.

This court has also explained that a good faith effort
requires that the prosecution has made “vigorous and appropriate
steps to procure the complaining witness’ presence at trial
.” State v. Lee, 83 Hawafi 267, 277, 925 P.2d 1091, 1101 (1996)
(emphasis and block format omitted) (quoting State v. Ortiz, 74
Haw. 343, 363, 845 P.2d 547, 556-57 §1993)). In Lee, this court
expressly adopted the unavailability standard announced in United
States v. Lynch: “establishment of the prosecution's reasonable
efforts to secure the presence of the declarant ‘require[s] a
search equally as vigorous as that which the government would
undertake to find a critical witness if it has no prior testimony
to rely upon in the event of ‘unavailability[.]"” ld; at 278,
925 P.2d at 1102 (relying on United States v. Lynch, 499 F.2d
1011, 1023 (D.C. Cir. 1974)). As discussed below, the
prosecution satisfied the tests announced in Roberts and Lee by

moving to sever the trial when it became apparent Daughter 1 may

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not appear, having an investigator attempt to locate Daughter 1,
subpoenaing Huerta to locate Daughter 1, and through Huerta's
attempts to locate Daughter 1.

1. The prosecution's efforts to locate Daughter 1
satisfied the Sixth Amendment’s unavailability

reguirement.

The admission of Daughter l’s preliminary hearing
testimony into evidence did not violate the Sixth Amendment of
the United States Constitution. 1n Roberts, the prosecution
sought to introduce prior testimony of a witness, Anita 1saacs,
and submitted evidence to establish her unavailability. Roberts,
448 U.S. at 59. The prosecutor spoke with Anita's mother four
months before trial. lQ; at 75. Anita's mother told the
prosecutor that she did not know Anita’s location, had last heard
from Anita during the preceding summer, and had no way of
contacting Anita in an emergency. ld; The prosecution issued
five subpoenas to Anita's mother in the several months before
trial. ldL Additionally, at the hearing to determine the
admissibility of the preliminary hearing testimony, the
prosecutor stated to the court that the defendant “witnessed that
1 have attempted to locate, 1 have subpoenaed, there has been a
voir dire of the witness’ parents, and they have not been able to
locate her for over a year.” ld¢ Upon review, the Supreme Court

held that given “these facts, the prosecution did not breach its

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duty of good-faith effort.” ld; The Supreme Court held that a
conversation with Anita’s mother -- where the mother told the
prosecutor that she did not know Anita's location -- along with
five subpoenas served on Anita’s mother at her residence,
satisfied the prosecution's burden to show Anita's

unavailability.B The Court emphasized that

the service and ineffectiveness of the five subpoenas and
the conversation with Anita's mother were far more than mere
reluctance to face the possibility of a refusal. lt was
investigation at the last-known real address, and it was
conversation with a parent who was concerned about her
daughter's whereabouts.

ld. at 76.

v 3 The dissent asserts that serving “five subpoenas over a span of
several months is evidence that the prosecution remained in contact with
Anita's parents and made periodic checks with them to determine if they had
any new information on Anita’s whereabouts.” Dissent at 29 (footnotes
omitted). Although the Supreme Court noted that the prosecutor was “in touch
with [Anita’s mother] and discussed with her Anita's whereabouts[,]” the
Supreme Court did not establish that the prosecutor made “periodic checks”
with Anita's parents outside of sending subpoenas to their residence, §g§
Roberts, 448 U.S. at 75, 76 (“the service and ineffectiveness of the five
subpoenas and the conversation with Anita's mother were far more than mere
reluctance to face the possibility of a refusal{”). For instance, Justice
Brennan's dissenting opinion states that from “all that appears in the record
- and there has been no suggestion that the record is incomplete in this
respect - the State’s total effort to secure Anita's attendance at
respondent's trial consisted of the delivery of five subpoenas in her name to
her parents' residence, and three of those were issued after the authorities
had learned that she was no longer living there.” lQ; at 79 (Brennan, J.,
dissenting) (footnote omitted).

Additionally, although the dissent notes that the prosecution conducted

a voir dire of Anita's mother in Roberts, Dissent at 28, the voir dire hearing
occurred at trial after the prosecutor sought to introduce Anita’s preliminary
hearing testimony. Roberts, 448 U.S. at 59. The hearing was conducted at
defendant's request to establish Anita's unavailability. ldL at 59, 75.
Anita’s mother was “the sole witness at voir dire” and testified that she
“knew of no way to reach Anita in case of an emergency.” lQ; at 59-60. The
voir dire of Anita’s mother is analogous to calling Huerta at trial to testify
about Daughter l’s unavailability, and is not an additional effort made by the
prosecution in Roberts to establish Anita’s unavailability.

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Applying the Supreme Court’s analysis in Roberts, the
prosecution in the present matter satisfied its obligation to
make a good faith effort. Like the prosecutor in Roberts, the
prosecution served a person, Huerta, who was concerned about
Daughter l’s whereabouts. For instance, Huerta testified that,
prior to being served, she was unable to locate Daughter 1 after
she ran away from her placement at the Hale Opio Girls Home Group

Program on January 16, 2007. Thus, like Anita's mother, Huerta

\was concerned about Daughter l’s whereabouts and could not locate

Daughter 1.

Additionally, the service of the subpoena on Huerta
prompted Huerta to take additional efforts to locate Daughter 1.
For instance, Huerta testified that she was served with a
subpoena “to bring fDaughter 11 to court for this trialf.]”
(Emphasis added.) The subpoena also indicates that Daughter 1
was served “care of” Huerta. In complying with this subpoena,
Huerta testified she had been unable to locate Daughter 1 despite
contacting the juvenile delinquent program, placing an ad in the
newspaper, visiting Daughter l’s mother’s home where Daughter 1
had resided on numerous occasions, talking to “many people in the
community[,]” and contacting police officers and calling them to
“see if they’ve seen or heard of her recently . . . .” Huerta’s

efforts met the good faith standard announced in Roberts. We

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respectfully disagree with the dissent's suggestion that her
efforts could not establish a good faith effort to locate
Daughter 1 because she was not a “prosecutorial authority.”
Dissent at 13 (citing Barber, 390 U.S. at 724-25). The efforts
of a social worker to locate an unavailable witness can establish
that a good faith effort was made to bring the witness to trial.
§ee infra at 21-23.

Finally, unlike Roberts, the prosecution assigned an

`investigator to locate Daughter 19 and moved to sever the trial

9 Although the dissent asserts that “the bare statement that the
prosecution had its ‘investigator go out and try to find her himself’ is
manifestly insufficient” to establish that the prosecution made a good faith
effort to locate Daughter 1, Dissent at 20, even without this statement, the
prosecution established a good faith effort by serving the subpoena on_Huerta,
having Huerta make numerous efforts to locate Daughter 1, and moving to sever
the trial. Additionally, this court can rely upon an undisputed
representation by the prosecutor at a hearing to bolster its conclusion that
the prosecution made good faith efforts to locate Daughter 1. §§§ Hiler v.
State, 796 P.2d 346, 349 (Okla. Crim. App. 1990) (holding that the
“prosecution's uncontroverted assertion was sufficient to show that [the
witness] was unavailable to testify”) (citing Munson v. State, 758 P.2d 324,
333 (Okla. Crim. App. l988)); Munson, 758 P.2d at 333 (holding that the
prosecution established a witness’ unavailability partly based on a
prosecutor's representation of a conversation with a prosecutor from another
state), cert. denied 488 U.S. 1019 (1989).

The dissent distinguishes Hiler by asserting that Hiler waived his
confrontation argument by introducing the preliminary hearing testimony in his
case in chief. Dissent at 22. Respectfully, this argument is unpersuasive
because the court held that “ln]otwithstanding appellant’s waiver of these
issues, we hold that appellant’s right to confrontation was not abridged
through the use of [the witness]’ preliminary hearing testimony and that the
prosecution's uncontroverted assertion was sufficient to show that [the
witness] was unavailable to testify.” Hiler, 796 P.2d at 349 (emphasis
added). Thus, this court can rely on the uncontroverted representation of the
prosecutor to establish that it made a good faith effort.

Moreover, although the dissent notes, and we agree, that Munson is
factually distinct because the court did not rely solely on the
representations of the prosecutor, Dissent at 22-23, the Hiler court
interpreted Munson as supporting the proposition that “the prosecution's
uncontroverted assertion was sufficient to show that [the witness] was
unavailable to testify.” Hiler, 796 P.2d at 349 (citing Munson, 758 P.2d at

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when it became apparent that the prosecution would have
difficulty locating Daughter 1 for trial. The prosecution's
efforts before trial exceeded the efforts the prosecutors took in

Roberts.w Thus, under Roberts, the prosecution established

9...continue

333). Thus, although the dissent correctly observes that Munson is distinct,
the Oklahoma Criminal Court of Appeals interpreted Munson as supporting the
proposition we use it for. See id.

w As the dissent points out, there are factual differences between
Roberts and this case. §§§ Dissent at 27-33. For instance, in Roberts, the
prosecution served five subpoenas over the course of several months. However,
the prosecution served three of these subpoenas after it knew Anita did not
reside at her mother’s residence. §§g Roberts, 448 U.S. at 79-80 & n.3
(Brennan, J., dissenting). Returns for the remaining two subpoenas were made
on November 3 and November 4, 1975. ld; Thus, although the number of
subpoenas issued in Roberts appears to suggest that the prosecutor's efforts
in that case outweigh the prosecution's efforts in this case, the prosecution
only issued two subpoenas -- one day apart -- at Anita’s mother’s house before
they knew that Anita did not reside with her mother. .

Additionally, as the dissent discusses, the subpoena in this case
was served after the prosecution had moved to sever the trial based on
Daughter l’s unavailability. This does not demonstrate the prosecution's “bad
faith” in serving the subpoena, but instead demonstrates that the prosecution
served Huerta to prompt her to take additional efforts to locate Daughter 1.

_ This is evidenced by Huerta’s testimony that she was served with a subpoena

“to bring [Daughter l] to court for this tria1[.]” Furthermore, the
prosecution's adherence to a necessary legal process does not indicate that
its service of the subpoena was “truly a meaningless exercise, bereft of any
good faith basis.” Dissent at 17 (footnote omitted). The prosecution had a
continuing legal obligation to produce Daughter 1 for trial, and serving a
subpoena on Huerta was part of that obligation. §§§ State v. Ortiz, 74 Haw.
343, 363, 845 P.2d 547, 557 (1993), overruled on other grounds, State v.
Moore, 82 HawaiU_202, 22l, 921 P.2d 122, 141 (1996). Fulfilling this
obligation by subpoenaing Huerta, even though Daughter 1 had run away, does
not suggest that the prosecution's effort was “bereft of any good faith
basis.”

The dissent also notes that the subpoena was served eleven days
before trial. Dissent at 28, 30. However, courts have held that the
prosecution's efforts were reasonable when attempting to serve the witness at
a similar time before trial. Pillette v. Berghuis, 630 F. Supp.2d 791, 804
(E.D. Mich. 2009) (holding that the prosecution's efforts to locate an
unavailable witness were reasonable when the prosecution, among other efforts,
attempted serve the witness “approximately two weeks” before trial); State v.
Black, 621 N.E.2d 484, 487 (Ohio App. 1993) (rejecting defendant's argument
that the state should have attempted to locate the witness more than a week in
advance of trial and “declin[ing] to adopt a bright-line rule establishing a
time limit for efforts to be made to produce a witness.”).

continue...

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Daughter l’s unavailability.

2. The prosecution has satisfied the unavailability test
adopted in State v. Lee.

ln State v. Lee, this court adopted the following

standard for the prosecution to prove unavailability:

establishment of the prosecution's reasonable efforts to
secure the presence of the declarant “require[s] a search
equally as vigorous as that which the government would
undertake to find a critical witness if it has no prior
testimony to rely upon in the event of ‘unavailability,’”

Lee, 83 HawaiYi at 278, 925 P.2d at 1102 (relying on Lynch, 499

F.2d at 1023).

This court has also stated that the mere “service of a
subpoena on the complaining witness did not establish her
unavailability . . . .” State v. Beyer, 72 Haw. 469, 473, 822
P.2d 519, 521 (1991), overruled on other grounds, Moore, 82
HawaiU_at 220, 921 P.2d at 140; Lee, 83 Hawafi at 277 n.11, 925
P.2d at 1101 n.11 (quoting §ey§;, 72 Haw. at 473, 822 P.2d at
521}.

The prosecution satisfied the standard adopted in Lee
for three reasons. First, nothing suggests the prosecution

intended to rely on the preliminary hearing testimony or that it

”...continue

Finally, the prosecution also took efforts to locate Daughter 1
that the prosecution did not take in Roberts by assigning an investigator to
locate Daughter 1 and moving to sever the trial when it became apparent that

» it would be difficult to locate Daughter l. When compared to Roberts, the

prosecution's efforts in this case were reasonable, and Vinhaca's rights under
the Sixth Amendment of the United States Constitution were therefore not
violated.

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would have taken additional measures if it did not have Daughter
l’s preliminary hearing testimony. As discussed above, the-
prosecution assigned an investigator to locate Daughter 1. Thus,
a person within the prosecutor's office attempted to locate
Daughter 1.

Additionally, when the prosecution discovered Daughter
1 would not likely appear at trial, it moved to sever the trial
to avoid relying on Daughter l’s preliminary hearing testimony.
This court has implied that moving for a continuance evidences
the prosecution's good faith effort to locate a witness. §ee
MQQr§, 82 Hawaifi at 224, 921 P.2d at 144 (noting that the
prosecution's motion for a continuance, which was opposed by the
defendant, was denied); see also United States v. Lynch, 499 F.2d
1011, 1024 (D.C. Cir. 1974)A(“lt is difficult to believe that if
the preliminary hearing testimony of this critical witness were
not available, the prosecution would have abandoned its efforts
at this point to locate Miss Brown and concluded its case. We
believe the prosecution would have asked the court for additional

time within which to find her.”) (emphasis added).H The

“ The dissent correctly notes that the prosecution did not seek a
continuance of the entire trial, but did not object to one. §§§ Dissent at
40-44. Although the prosecution did not request to continue the entire trial,
it moved to sever the trial because it was prepared to proceed on those counts
relating to Daughter 2. The prosecution requested to sever the trial because
it would be “severely prejudiced” by having to proceed on charges relating to
Daughter 1 when she was unavailable for trial. lt is apparent from the record
that both the prosecution and the defense understood that if the motion to

continue...

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prosecution in this case notified the circuit court that it would
have trouble locating Daughter 1, and that it would prefer moving
forward with the charges related to Daughter 2. Vinhaca opposed
the prosecution's motion to sever and the circuit court denied
the motion. The prosecution's motion to sever illustrates that
its effort to locate Daughter 1 was in good faith because it
requested additional time to locate Daughter 1.

Furthermore, the prosecution subpoenaed Huerta and

»Huerta attempted to locate Daughter 1. Thus, the prosecution

made good faith efforts to locate Daughter 1 and nothing suggests
that the prosecution would have taken additional efforts to
locate Daughter 1 if it did not have her preliminary hearing

testimony.

“...continue

sever was granted, the trial with regard to Daughter 1 would not proceed as
scheduled. Thus, the motion to sever was the functional equivalent of a
motion to continue the trial relating to Daughter 1 because it requested
additional time to search for Daughter 1.

ln response to the prosecution's motion to sever, Vinhaca asserted that
“the State should seek a continuance of the entire trial and all of the
pending charges or should dismiss the charges that the State is not able to
prosecute and proceed with the charges that the State is able to.” ln reply,
the prosecution asserted that “[j]ustice would be best served by allowing the
State to proceed on [] (and have Defendant face in a timely manner) Counts 1
through 8.” The dissent asserts that “the record reflects that Respondent
could have asked for a continuance on its own, but did not.” Dissent at 42.
Respectfully, the prosecution's neutrality with regard to continuing the
entire trial does not undercut the inference of good faith that its request to
sever, and thus continue with regard to Daughter 1, raised.

Furthermore, contrary to the dissent's suggestion, the discussion above
illustrates that the prosecution did not “obviously intend[] to rely on the
preliminary hearing transcript of Daughter 1, despite its motion to sever.”
Dissent at 40. The prosecution's motion to sever demonstrates that it
attempted to avoid using Daughter l’s preliminary hearing testimony by
severing the trial and proceeding on those charges related to Daughter 2.

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Second, the prosecution's subpoena to Huerta prompted

Huerta to take additional efforts to locate Daughter 1. Other
courts have included the efforts of social services workers in
determining whether the prosecution made a good faith effort to
locate a witness. For instance, in State v. Black, 621 N.E.2d
484, 487-88 (Ohio App. 1993), the court held that the prosecution
made a good faith effort to locate a run-away thirteen year old
witness (“Brock”) by contacting the DHS and having members of DHS
look for the witness. The prosecution “presented four witnesses
to testify with respect to their efforts to locate Brock.” ld;
at 487. The four witnesses were “a supervisor in the Children’s
Division of the Hamilton County Department of Human Services, a
supervisor in the special-placement unit of the Montgomery County
Children’s Services, a case worker at Montgomery County
Children’s Services, and Brock’s mother.” lQ; The court stated

that the testimony of these witnesses established:

[T]hat Brock had been discharged from the United Methodist
Children’s Home in 1990 and had been returned to the custody
of the Montgomery County Children’s Board. The Montgomery
County Children’s Board returned custody of Brock to her
mother in January 1992, after she had been missing for a
period of six months. Brock's mother testified that she had
not seen her daughter since 1991 and that she had no idea
where Brock was currently staying. Brock’s dental records
had been given to the police and a warrant had been issued
for her arrest, but the police had been unable to locate
her.

ld. at 776, 621 N.E.2d at 487 (emphasis added).

The court concluded that the testimony of the four

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witnesses, none of whom were members of the prosecution,
established the unavailability of the run-away child. The court
held that Brock was unavailable because the “record.reveals that
Brock had a history of running away from her mother’s home and
from juvenile facilities; and that Brock had not been seen by her
mother or juvenile authorities for a period of several months.”
ld; at 487-88. Thus, even though the “prosecution” must make
efforts to locate the witnesses, the efforts of DHS to look for a
run-away teenage witness are not considered separately from the
8prosecution's efforts.”

Similarly, in State v. Sanchez, 592 A.2d 413, 415

(Conn. App. 1991), a thirteen year old witness, “E,” was “turned
over to the juvenile authorities” for possessing cocaine and
heroin and left for Puerto Rico two days later. ln the
subsequent trial of Sanchez, the state sought to introduce E's
deposition testimony. The state could not locate E before trial.
ldL The court held that the state established E’s unavailability
because the “state contacted an investigator for the juvenile
court from the public defender’s office and also a juvenile
division probation officer in an attempt to locate E.” ld; The
investigator was unsuccessful in locating E, and the probation
office had no information about E’s whereabouts. lQ4 at 415-16.

Also, “the investigation stemming from information presented by

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the defendant to the state as to E’s whereabouts proved
fruitless.” lee at 416. Furthermore, the state deposed E before
she was released because of her probable unavailability and the
defendant did not object to that procedure. lee ln Sanchez, the
efforts of two witnesses, in offices distinct from the
prosecutor's office, sufficed to establish E’s unavailability.
See also United States v. Thornton, 16 M.J. 1011, 1013 (A.C.M.R.
1983) (holding that the prosecution made a good faith effort to
produce a German citizen where the prosecution tried to produce
the witness’ presence “by subpoena, and also sought assistance
from her mother, her friends, and the German police.”); United
States v. Rundle, 298 F. Supp. 392, 395 (E.D. Pa. 1969) (holding
that prosecution established good faith effort where in addition
to the efforts of an investigator from the District Attorney’s
office, an Administrative Assistant from the Fort Mifflin Youth
Development Center and the witness’ mother testified that they
were unable to locate the witness). Thus, because Huerta took
extensive efforts to locate Daughter 1, the prosecution satisfied
its obligation to show Daughter 1 was unavailable.

Third, although the prosecution could have taken
additional efforts to locate Daughter 1, like “driver’s license
or motor vehicle registration searches[,]” eee Lee, 83 HawaFi at

279, 925 P.2d at 1103, these efforts would have been futile given

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Daughter 1 was a minor, her history as a run-away, and the
efforts already taken by the prosecution to locate her. Courts
have recognized the increased difficulty of locating run-away
minors, and have weighed this in determining whether the
prosecution's efforts to locate a witness were reasonable. §ee
§leek, 621 N.E.2d at 488 (noting that the witness had a history
of running away and stating that in “light of [the witness’1
history and the efforts made by the prosecution to find her, we
hold that the trial judge had sufficient evidence to find that
[the witness] was unavailable”) (emphasis added); Commonwealth v.
Jackson, 344 A.2d 842, 844 (Pa. 1975) (holding that the state
satisfied the good faith requirement because it “presented
evidence that the child [witness] mysteriously disappeared
shortly before trial and that he had previously run away ‘many
times.'”). For instance, in Roberts, the Court held that the
prosecution was not required to take additional efforts to locate
Anita because “the great improbability that such efforts would
have resulted in locating the witness, and would have led to her
production at trial, neutralizes any intimation that a concept of
reasonableness required their execution.” Roberts, 448 U.S. at
75-76. Similarly, it is highly unlikely that additional efforts
would have proved fruitful given that Daughter 1 had run away

many times since October 31, 2006, and the prosecution subpoenaed

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Huerta and assigned an investigator to locate Daughter 1 and
neither person could find Daughter 1. The Confrontation Clause
does not require the prosecution to take all possible efforts to
locate a witness, but only requires the prosecution to take
reasonable good faith efforts to locate a witness. Reed v.
Hathaway, 596 F. Supp.2d 1200, 1206 (C.D. lll. 2009) (“The rule
is not that the government must do everything it can to get a
witness to testify, rather only that it make a reasonable, good
faith effort to get the witness into court.”) (citing United
States v. Reed, 227 F.3d 763, 767 (7th Cir. 2000)). The
prosecution fulfilled its obligation to make a good faith effort
to locate Daughter 1, and additional efforts would have proved
futile.

IV. CONCLUSION
Based upon the foregoing analysis, we affirm the lCA’s
May 22, 2009, judgment.

DATED: Honolulu, HawaiUq August 4, 2010.

william H. Jameson, Jr.,

(Linda C.R. Jameson on - C;?§7MJ;»-

the briefs) for petitioner-

defendant-appellant

?i@w¢a_L3kTH%#Lm¢QJvV

Tracy Murakami, Deputy

Prosecuting Attorney, Q(

mo»E-£>HB@)%w

for respondent-plaintiff-

appellee

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