Honolulu Police Department v. Town

- # w iron PLIBLICATI()N IN vvr:s'r’s IIAW'AI‘I Rxzl»o_lz'rs ANI) l>AclFlc RE.'P<)R"IER

lN THE SUPREME COURT OF THE STATE OF HAWAlT

~--@0@~~~

HONOLULU POLICE DEPARTMENT, PetitiOner,

VS.
TOWN, JUDGE OF THE CIRCUlT

sTATE or HAwA:T;
Respondents.

THE HONORABLE MlCHAEL A.
COURT OF THE FlRST CIRCUlT,
OBED K. KAY; and STATE OF HAWAIdQ

NO. 30262

ORlGlNAL PROCEEDlNG
(CR. NO. 07-l*l3l5)

FEBRUARY 4, 2010

NAKAYAMA, DUFFY, AND RECKTENWALD,'

MOON, C.J., .
CONCURRING lN THE RESULT ONLY

WITH ACOBA, J.,
Per Curiam. In this original proceeding, petitioner

Honolulu Police Department (HPD) petitioned this court for a writ

of mandamus directing respondent the Honorable Michael A. Town,

judge of the Circuit Court of the First Circuit (the respondent

judge), to vacate an October 8, 2009 order denying HPD's motion

to quash a subpoena duces tecum served on HPD's custodian of
records by respondent Obed K. Kay (defendant Kay), who issued the
subpoena in State of Hawaifi v. Obed K. KaV (Criminal No. O7-l-
l3l5) for production of police records concerning the complaining

witness (the complainant). HPD had moved to quash the subpoena

on the ground that it impermissibly sought discovery of the

police records pursuant to the subpoena provision of Hawafi

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Rules of Penal Procedure €HRPP) Rule l7§b) (2CG7§, quoted inf;a,
rather than the discovery provision of HRPE Rule l§(b){2) (2007),
quoted infra.

On January l3, 20lG, we issued an order granting HPD's
petition for a writ of mandamus and vacated the respondent
judge’s October 8, 2009 order.

Based on the following, we hold that HRPP Rule l7(b)
does not permit a defendant to directly subpoena police or other
governmental personnel for discoverable material or information
independently and apart from HRPP Rule l6(b)(2).

I. Background

On July l7, 2007, defendant Kay was charged by
complaint with first degree terroristic threatening, Hawafi
Revised Statutes (HRS) § 707-7l6(l)(d) (l993) (Count l);
kidnapping, HRS § 707~720(l)(e) (l993) (Count 2); place to keep
pistol or revolver, HRS § l34-25 (Supp. 2006) (Count 3); and
carrying or use of a firearm in the commission of a separate
felony, HRS § l34~2l (Supp. 2006). As to counts l and 2, the
complaint alleged that defendant Kay threatened, by word or
conduct, to cause bodily injury to the complainant, with the use
of dangerous instrument, and intentionally or knowingly
restrained the complainant, with the intent to terrorize the

complainant or a third person.

** * F()R PUBLICA'I!,<)N IN ’\vx~:sr~s rir,.»xvv,'xl‘x REPQRT$ ANI) merritt Rsl~olrr.lclz …

Defendant hay was arraigned on July 26, 2037 and pled

1

?he cas was calendared for a tnree~

(D

not guilty to all counts.
to~four day jury trial. Defendant Kay indicated that he would
raise the defenses of reasonable doubt, ignorance or mistake of
fact or law, consent, deminimus infraction of the law, choice of
evils, defense of self, others, or property, and lack of
knowledge or intent.

Trial was initially scheduled for September 24, 2007,
but was continued ten times for a variety of reasons§ Defendant
Kay agreed to all the continuances. He waived his constitutional
and HRPP Rule 48 right to speedy trial on September l8, 2007,
February l4, 2008, June l9, 2008, September 4, 2008, April l6,
2009, July 9, 2OG9, and September 24, 2009. He had been in
pretrial custody, but was released on supervised release on April
24, 2008.

On August l6, 2009, defendant Kay obtained discovery
from the prosecution of a criminal history record of the
complainant. On September lO, 2009, defendant Kay issued and
served a subpoena duces tecum on HPD’s custodian of records. The

l

subpoena was issued pursuant to HRPP Rule l7(b). lt commanded

1 HRPP Rule l7. SUBPOENA.
(a) For attendance of witnesses; form; issuance.

A subpoena shall be issued by the clerk under the seal

of the court. lt shall state the name of the court and

the title, if any, of the proceeding, and shall command
each person to whom it is directed to attend and give

continue...

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HPD’s custodian of records to appear as a witness before the

§§

respondent judge, in defendant K y’s criminal case, on September
24, 2009, at 8:3U a.m. and to bring, “for court inspection,”
“copies of HPD Police Reports #O7~lO4943, #G4~427752, #O4~448G44,
and #G4-455004, made in connection with the arrest of [the
complainant].”
HPD moved, on September 23, 2009, to quash defendant

Kay’s subpoena duces tecum. HPD contended that the subpoena

'constituted an impermissible attempt by defendant Kay to

circumvent the discovery procedure of HRPP Rule l6 by obtaining
discovery of the complainant's police records directly from HPD
pursuant to HRPP Rule l7(b), rather than from the prosecution

pursuant to HRPP Rule l6(b)(2).2 HPD argued that defendant Kay

1...continue
testimony at the time and place specified therein. The
clerk shall issue a subpoena, signed and sealed but
otherwise in blank, to a party requesting it, who shall
fill in the blanks before it is served.

(b) For production of documentary evidence and of
objects. A subpoena may also command the person to whom
it is directed to produce the books, papers, documents
or other objects designated therein. The court on
motion made promptly may quash or modify the subpoena if
`compliance would be unreasonable or oppressive. The
court may direct that books, papers, documents or
objects designated in the subpoena be produced before
the court at a time prior to the trial or prior to the
time when they are to be offered in evidence and may
upon their production permit the books, papers, documents
or objects or portions thereof to be inspected by the
parties and their attorneys.

2 HRPP Rule 16._ DISCOVERY.

continue...

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never requested discovery from the prosecution of the police
reports identified in the subpoena duces tecum and that defendant

Kay’s subpoena of those police records was contrary to Stat~ v.

f

Pacarro, 61 Haw. 84, B7, 595 P.2d 295, 298 (l979}, which
construed HRPP Rule l7(b) as “not intend{ingj to provide an
additional means of discovery {apart from HRPP Rule l6j,” nor
permitting any “fishing expedition.” HPD_further argued that
defendant Kay’s use of HRPP Rule l7(b) resulted in a “waste of
judicial and other governmental resources” because the issue of
the discoverability of the complainant’s police records was
“outside the scope” of HPD’s counsel, the Corporation Counsel,
who was not privy to the facts of defendant Kay's case, and
required Corporation Counsel to respond to the subpoena by a
motion to quash.
Defendant Kay opposed HPD's motion to quash. He

contended that his state and federal constitutional right to

2. . .continue

(b) Disclosure by the prosection.

(2) DISCLOSURE OF MATTERS NOT WITHIN PROSECUTION’S
POSSESSKDl Upon written request of defense counsel and
specific designation by defense counsel of material or
information which would be discoverable if in the
possession or control of the prosecutor and which is in
the possession or control of other governmental
personnel, the prosecutor shall use diligent good faith
efforts to cause such material or information to be made
available to defense counsel; and if the prosecutor’s
efforts are unsuccessful the court shall issue suitable
subpoenas or orders to cause such material or
information to be made available to defense counsel.

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compulsory process3 -~ to compel the production of documents ~~
allowed him to obtain the complainant’s police records by
subpoena duces tecum pursuant to HRPP Rule l7(b), “independently
and apart from the normal discovery process of HRPP Rule l6.”

The contention was grounded on a decision of a New York County
trial court in People v. Burnette, 612 N.Y.S.2d 774 (N.Y. Sup.
Ct. l994), wherein the court, Judge Goodman presiding, refused to
quash a criminal defendant’s subpoena duces tecum to the New York
City Police Department -~ issued pursuant to a New York statute
equivalent to HRPP Rule l7(b) (“subpoena statute”> -- for police
records for which disclosure had not been sought from the
prosecution pursuant to a New York statute equivalent to HRPP
Rule l6 (“discovery statute”). Judge Goodman rejected the New
York City Police Department’s contention that the police reports
were discoverable under the discovery statute such that discovery
could be conducted only in accordance therewith.

The right to compulsory process is
guaranteed to all criminal defendants by the
Sixth and Fourteenth Amendments to the
Constitution of the United States. In this
state, the Court of Appeals recently wrote that
the purpose of a subpoena is “to compel the
production of specific documents that are
relevant and material to facts at issue in a
pending judicial proceeding.”

Moreover, the view urged by the Police
Department is inconsistent with the statutory
scheme reflected in [the subpoena statute.] In
particular, [the subpoena statute1 specifically

3 Hawafi Constitution, Article I, Section l4; United States
Constitution, Amendment Vl.

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states that a subpoena may require that the
material being subpoenaed be produced prior to
the date of trial. As the Praccice Commentary
notes, the statute provides no exemption for
“material as may be found in §the discovery
statute}. The Commentary also states that the
purpose of [the subpoena statute} is to “foster
early availability of evidence to reduce surprise
and gamesmanship.”

The above lends me to reject the argument
of the Police Department that [the discovery
statute} represents a ceiling for discovery.
Rather, l view the discovery provisions as
providing “a guarantee that a defendant receive a
certain minimum level of discovery.” Since the
purpose of [the discovery statute] was to broaden
discovery there is no reason to think that it was
meant to limit the exercise by the defendant of
the right to compulsory process as provided in
the United States Constitution or [the subpoena
statute]. In fact it is clear that the subpoena
power extends to items not discoverable under
[the discovery statute].

Burnette, 612 N.Y.S.2d at 777-78 (internal citations omitted).

Pursuant to the view expressed by Judge Goodman, defendant Kay

argued that:

In the case at bar, [the circuit] court
should view the use of the subpoena duces tecum
issued pursuant to HRPP Rule l7(b) in the same
light as did the trial court in Burnette.

l. A defendant clearly has constitutional
rights to discover substantive material that
tends to negate guilt, impeachment material that
supports an attack on the credibility of adverse
witnesses, sentencing material that would tend to
reduce punishment upon conviction, and material
that is essential to enable a defendant to
conduct adequate pre-trial investigation, to file
pre-trial motions, or to make informed pre-trial
strategy decisions - the defendant is entitled to
this material apart from the mechanism set forth
in HRPP Rule l6 which delineates only a certain
minimum level of discovery.

2. There is no reason to think that HRPP
Rule 16 was meant to limit the exercise by the
defendant of the right to compulsory process - a

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mere statute cannot diminish a constitutional
right.

3. There is no exemption within HRPP Rule
l7 against the use of a subpoena duces tecum
where the subject matter may be covered by HRPP
Rule l6.

4. `The purpose of HRPP Rule l7 is to
foster early availability of evidence, to reduce
surprise and gamesmanship.

5. HRPP Rule l?§b) specifically states
that the court may direct that materials
designated in the subpoena “be produced before
the court at a time prior to trial.” If a
defendant directly subpoenas HPD, he acts to
preserve his right to a speedy trial, whereas
making a written request to the prosecutor
(assuming the subject matter falls within the
discoverable matters listed in HRPP Rule l6),
following up with a motion to compel, and then
having a hearing on the motion, would result in
delay injurious to the defendant's right to
speedy trial, incur extra cost in resources of
the court, the prosecutor, and the defense, and
may still require a subpoena or court order to
HPD - when the Corporation Counsel files motions
to quash, it engages in gamesmanship.

(Original emphasis).
The respondent judge heard HPD's motion to quash on

September 24, 2009. At the outset of the hearing, the respondent
judge remarked that: (l) the procedure challenged by HPD was an
efficient procedure for obtaining police records in criminal
cases; (2) the respondent judge was accustomed to the procedure;
(3) HPD's challenge was “jamming up” defendant Kay’s
constitutional and HRPP Rule 48 speedy trial right; and (4) the

ll

respondent judge “d[id]n’t appreciate [the challenge]. These
remarks were echoed by the public defender, as counsel for
defendant Kay, who stated that the subpoenaing of police records

directly from HPD, without requesting the records from the

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prosecution, has been a long standing practice of the public
defender in the circuit, district, and family courts and that the
procedure was challenged “just this year" by the Corporation
Counsel by motions to quash the public defender's subpoenas.
“Past practice and {the} constitutional right {to compulsory
process],” the public defender argued, “[gave defendant Kay thel
independent right to subpoena HPD notwithstanding any provisions
of Rule l6.”

Corporation Counsel countered that police records are
protected by privacy rights under HRS Chapter 92F and that HPD
would be subject to suit if it simply turned over police records
without confirming the legality of the disclosure. Corporation
Counsel noted that the subpoena of police records directly from
police personnel pursuant to HRPP Rule l7(b) was occurring only
in the first judicial circuit and that in the other three
judicial circuits, the defense bar “actually follows Rule l6" by
seeking disclosure through the prosecutor. Corporation Counsel
reiterated that “State vs. Pacarro is still good law, and it’s
clear that subpoenas are not meant to be used as an additional
means of discovery.”

The prosecution, which appeared at the September 24,
2009 hearing, took the position that the complainant's police
reports subpoenaed by defendant Kay “do not specifically pertain

to [defendant Kay's] case.” Consequently, the prosecution argued

s ** ron PulsiilcA'rion IN ‘»vi;s'r’s HAWAI‘I Rle:i»on"rs AND I»Acirlc REPQRTI~;R …

that the police reports were “not discoverable under Rule l6 and
that is why the §prosecution} at this point is not providing
them.”

The respondent judge orally denied HPD’s motion to
quash and ordered HPD to deliver the complainant’s police records
to the circuit court for screening. The screening was ordered
over objection of the public defender, who argued that defendant
Kay was entitled to all of the police reports, without screening,
because the reports concerned the complainant. The public
defender further stated that defendant Kay “can't go [to trial]
without those reports” and thereby agreed to a trial continuance
to January l9, 20lO and waived defendant Kay's speedy trial
right.

Findings of fact, Conclusions of Law and Order denying
HPD's motion to quash was drafted by the public defender and
adopted and entered by the respondent judge on October 8, 2009.

Findings of Fact

2. On September lO, 2009, the defense
filed a Subpoena Duces Tecum . . . directed to
[HPD] to produce “copies of HPD Police Report
#O7-lO4943, #O4~427752, #O4~448044, and #O4-
455004, made in connection with the arrest of
[the complainant].” [The complainant] is the
complaining witness in Cr. No. 07-l-l3l5.

9. This court finds that the material
subpoenaed by the Public Defender is
discoverable. A defendant has a constitutional
right to have certain types of material in
preparation for trial - substantive information
that tends to negate the guilt of the defendant,
impeachment information that supports an attack

lO

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on the credibility of adverse witnesses, or
sentencing information that would tend to reduce
punishment upon conviction; a defendant also has
a constitutional right to have material that is
essential to conduct adequate pre-trial
investigation, to file pre-trial motions, and to
make informed pre-trial strategy decisions. [The
complainant] is the complaining witness in the
case at bar; the subpoenaed material consist of
police reports for offenses for which [the
complainantj was ultimately convicted; these
materials may provide impeachment material of a
key witness against the defendant, or assist the
defendant to conduct adequate pre-trial
investigation, to file pre-trial motions, and to
make informed pre-trial strategy decisions.

lO. This Court finds that the Office of
the Public Defender may directly subpoena HPD for
material independently and apart from HRPP Rule
l6Fby§2) because:

(a) A defendant has a constitutional right
to discover substantive material that tends to
negate guilt, impeachment material that supports
an attack on the credibility of adverse
witnesses, sentencing material that would tend to
reduce punishment upon conviction, as well as
material that is essential to enable a defendant
to conduct adequate pre-trial investigation, to
file pre-trial motions, or to make informed pre-
trial strategy decisions -- the defendant is
entitled to these materials independently and
apart from the mechanism set forth in HRPP Rule
l6, which delineates only a certain minimum level
of discovery.

(b) A defendant has a constitutional right
to compulsory process, which includes the right
to compel the attendance of witnesses and the
right to compel the production of documents.
There is no reason to think that HRPP Rule l6 was

meant to limit that constitutional right -- a
mere statute cannot diminish a constitutional
right.

(c) There is no exemption within HRPP Rule
l7 against the use of a subpoena duces tecum
where the subject matter of the subpoena may be
covered by HRPP Rule l6. »

(d) The purpose of HRPP Rule l7 is to
foster early availability of evidence, and to
reduce surprise and gamesmanship, and HRPP Rule
l7(b) specifically states that the court may
direct that materials designated in the subpoena

ll

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“he produced before the court at a time prior to
the trial.” ff a defendant directly subpoenas
HPD, he acts to preserve his constitutional and
statutory rights to a speedy trial (especially
important where defendant may be in custody
awaiting trial} -- whereas making a HRPP Rule
l6(b)(2} written request to the prosecutor and
waiting for a response, following up with a
motion to compel and waiting for a hearing, and
then having the court issue the same subpoena
(that otherwise would have been issued) and
waiting for a return, would result in delay
injurious to a defendant's rights to a speedy
trial, and incur extra cost in resources of the
court, the prosecutor, and the defense;

(e) HRPP Rule 2 provides that, “These
rules are intended to provide for the just
determination of every penal proceeding. They
shall be construed to secure simplicity in
procedure, fairness in administration and the
elimination of unjustifiable expense and delav.”
Allowing the Office of the Public Defender to
directly subpoena HPD independently and apart
from HRPP Rule l6 will make the discovery process
simpler, will be fair to all concerned parties -~
(the court will conduct an in camera inspection,
entertain any objections to disclosure, have the
material sealed and made part of the record under
HRPP Rule l6(e)(6), and disclose material that is
constitutionally or statutorily reguired) -- and
will eliminate unjustifiable expense and delay;
this will result in a just determination of the
penal proceeding.

Conclusions of Law

l. The defendant has a constitutional due
process right to discover substantive material
that tends to negate the guilt of the defendant
or reduce punishment, Brady v. Maryland, 373 U.S.
B3, l0 L.Ed.2d 2l5, 83 S.Ct.ll94 (l963), State v.
Matafeo, 7l Haw. l83, 787 P.2d 671 (l990), and
impeachment material that supports an attack on
the credibility of witnesses, Giglio v. United
States, 405 U.S. l50, 31 L.Ed.2d l04, 92 S.Ct.
763 (l972), State v. White, 92 Hawai‘i l92, 990
P.2d 90 (l999) (error to prohibit discovery of
police reports by subpoena regarding pending
charges against 3m party witness against
defendant, which would have shown motive under
HRE 609.l to fabricate testimony against
defendant); the defendant also has a

l2

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constitutional due process right to discover
material that is essential to enable a defendant
to conduct adequate pre~trial investigation, to
file pre~trial motions, and to mate informed pre~
trial strategy decisions. The materials
subpoenaed by the defendant are discoverable.

2. The defendant has a constitutional
right to compel the attendance of witnesses and
to compel the production of documents.
washington v. Texas, 388 U.S. 14, 87 S.Ct. l920,
18 L.Ed.2d l0l9 (l967), State v. Valmoja, 56 Haw.
452, 540 P.2d 63 {1975). The mechanism employed
to enforce this right is the subpoena for
witnesses, or subpoena duces tecum for materials,
under HRPP Rule 17.

3. A defendant may directly subpoena HPD
for discoverable materials under HRPP Rule 17
independently and apart from HRPP Rule 16, cf.
State v. White, supra, because

(a) A defendant's constitutional right to
discover material exists independently and apart
from HRPP Rule l6, which delineates only a
minimum level of discovery obtainable from the
prosecution;

(b) HRPP Rule 16 cannot limit or diminish
the defendant's constitutional right to
compulsory process;

(c) There is no exemption within HRPP Rule
17 against the use of a subpoena duces tecum
where the subject matter of the subpoena may be
covered by HRPP Rule 16;

(d) The purpose of HRPP Rule 17 is to
foster early availability of evidence, and to
reduce surprise and gamesmanship, and HRPP Rule
l7(b) specifically states that the court may
direct that materials designated in the subpoena
“be produced before the court at a time prior to
the trial.” If a defendant directly subpoenas
HPD, he acts to preserve his constitutional and
statutory rights to a speedy trial -~ whereas
making a HRPP Rule 16(b)(2) written request to
the prosecutor and waiting for a response,
following up with a motion to compel and waiting
for a hearing, and then having the court issue
the same subpoena and waiting for a return, would
result in delay injurious to the defendant's
speedy trial rights, and incur extra cost in
resources of the court, the prosecutor, and the
defense;

(e) Allowing discovery by subpoena
directly on HPD independently and apart from HRPP

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Rule 16 will accomplish the objectives of HRP?

Rule 2 by making the discovery process simpler,

will be fair to all concerned parties, and will

eliminate unjustifiable expense and delay.

Order
lT lS HEREBY ORDBRED that {HPD’s motion to
quash defendant Kay's subpoena duces tecum] is
hereby DENlED.
1T 18 FURTHER ORDERED that the Department

of the Corporation Counsel shall immediately

produce copies of the subpoenaed materials to the

court ~~ the court shall conduct an in camera

inspection of the materials, shall have the

material sealed and made part of the record under

HRPP Rule l6(e}(6); and shall disclose to the

defense material that is constitutionally or

statutorily required.

(Original emphasis).

On December 30, 2009L HPD initiated this original
proceeding by filing a petition for a writ of mandamus. HPD
sought a writ directing the respondent judge to vacate the
October 8, 2009 order on the ground that it allowed discovery
pursuant to the subpoena provision of HRPP Rule 17(b), contrary
to Pacarro, supra. HPD contended that the October 8, 2009 order
allowed defendant Kay to circumvent the discovery process
mandated by HRPP Rule l6(b)(2) and that the denial of HPD's
motion to quash constituted an “egregious abuse of discretion.”
On January 13, 20l0, we issued an order granting the petition for
a writ of mandamus and vacated the October 8, 2009 order.

ll. Standard for Disposition

A writ of mandamus is an extraordinary remedy that will

not issue unless the petitioner demonstrates a clear and

14

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indisputable right to relief and a lack of alternative means to
redress adequately the alleged wrong or obtain the requested
action. Kema v. Gaddis, 91 HawaiH.2OC, 204, §B2 P.2d 334, 338
(l999}. Such writs are not intended to supersede the legal
discretionary authority of the lower courts, nor are they
intended to serve as legal remedies in lieu of normal appellate
procedures. l_. Where a court has discretion to act, mandamus
will not lie to interfere with or control the exercise of that
discretion, even when the judge has acted erroneously, unless the
judge has exceeded his or her jurisdiction, has committed a
flagrant and manifest abuse of discretion, or has refused to act
on a subject properly before the court under circumstances in
which it has a legal duty to act. ;d., 91 Hawafi at 204-O5, 982

P.2d at 338-39.

IlI. Discussion
A. HRPP Rule l7(b) Does Not Permit A Defendant To Directly

Subpoena Police Or Other Governmental Personnel For

Discoverable Material Or Information Independently And

Apart From HRPP Rule l6(b)(2).

HRPPiRule l6 governs discovery in “cases in which the
defendant is charged with a felony, and may commence upon the
filing in circuit court of an indictment, an information, or a
complaint.” HRPP Rule l6(a). The prosecutor must disclose to a
defendant, within ten calendar days after arraignment and plea,
“any material which tends to negate the guilt of the defendant as

to the offense charged or would tend to reduce the defendant's

punishment therefor.” HRPP Rule l6(b)(l)(vii) and (e)(l). The

l5

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prosecutor must also disclose to a defendant “material or

information which would be discoverable if in the possession or
control of the prosecutor and which is in the possession or
control of other governmental personnel.” HRPP Rule l6{b}(2).
Disclosure pursuant to HRPP Rule l6(b)(2} is effected “upon
written request of defense counsel” and “specific designation by
defense counsel” of the material or information, whereupon “the
prosecutor shall use diligent good faith efforts to cause such
material or information to be made available to defense counsel;
and if the prosecutor’s efforts are unsuccessful the court shall
issue suitable subpoenas or orders to cause such material or
information to be made available to defense counsel.” HRPP Rule
l6(b)(2).4

A subpoena for the production of “documentary evidence”
~- “books, papers, documents” -- or “objects” is issuable in a
criminal case pursuant to HRPP Rule l7(b). Pursuant thereto,
“[t]he court may direct that books, papers, documents or objects
designated in the subpoena be produced before the court at a time
prior to the trial or prior to the time when they are to be
offered in evidence{.]” ld.

HRPP Rule l7(b) was patterned after Federal Rules of

Criminal Procedure (FRCP) Rule l7(c). Pacarro, supra, 61 Haw. at

4 HRPP Rule l6(b)(2) “is directed to situations where the
prosecutor is unaware of the evidence but the defense is, and the
burden is therefore on the defense to specify exactly what and where
the evidence is which it seeks to obtain.” State v. Fukusaku, 85

1HawaiU_462, 478, 946 P.2d 32, 48 (l997).

l6

* w ron PUBLICA'.!‘_I¢;)N in W')z;s'r’s xeIAv\/A;x‘l R.L:Po!z'"x:s ANI) PACIFIC REiPoIzTER er

86, 595 P.2d at 297. FRCP Rule l7{c) was interpreted by the

United States Su rome Court in Bowman Dairy Co. v. United States
f

¥\)
},.x

34l U.S. 4 (l95l). The Bowman court opined that:

lt was not intended by {FRCP3 Rule l6 to
give a limited right of discovery, and then by
fFRCP} Rule 17 to give a right of discovery in
the broadest terms. . . . . Rule l7(o) was not
intended to provide an additional means of
discovery. lts chief innovation was to expedite
the trial by providing a time and place before
trial for the inspection of the subpoenaed
materials.

Bowman, 341 U.S. at 220 (bold emphasis added). The Supreme Court
affirmed and expanded on Bowman in United States v. Nixon, 418

U.S. 683 (l974).

[Bowman] recognized certain fundamental
characteristics of the subpoena duces tecum in
criminal cases: (l) it was not intended to
provide a means of discovery for criminal cases;
(2) its chief innovation was to expedite the
trial by providing a time and place before trial
for the inspection of subpoenaed materials. As
both parties agree, cases decided in the wake of
Bowman have generally followed Judge Weinfeld's
formulation in United States v. Iozia, 13 F.R.D.
335, 338 (SDNY l952), as to the required showing.
Under this test, in order to require production
prior to trial, the moving party must show: (l)
that the documents are evidentiary and relevant;
(2) that they are not otherwise procurable
reasonably in advance of trial by exercise of due
diligence; (3) that the party cannot properly
prepare for trial without such production and
inspection in advance of trial and that the
failure to obtain such inspection may tend
unreasonably to delay the trial; and (4) that the
application is made in good faith and is not
intended as a general “fishing expedition.”

Nixon, 418 U.S. at 698-700 (internal citations and footnote

omitted; bold emphasis added).

l7

H* F<)R Puizl.lcixfrlon m vvi:s“r>s x»n\\v/x;;‘l xuzl'c)n"l"s A;rf~u) PACIFI<:: Re:l>on'rr;lz …

ln 1979, we adopted Bowman's and Nixon’s interpretation
of FRCP Rule 17(c§ when we construed, in Pacarro, District Court
Rules of Penai Procedure (DCRPP) Rule 31{c) {1972),5 which was
then also HRPP Rule 17(b).

The appellant §State of Hawaii} contends
that Rule 31(c), D.C.R.P.P, is not a rule
providing for an additional means of discovery of
evidence. We agree with the appellant's
contention.

. t is generally recognized that in
criminal cases the subpoena duces tecum was not
intended to provide an additional means of
discovery. United States v. NiXon, [418 U.S.
683, 698 (1974)], 94 S.Ct. 3090; Bowman Dairy Co.
v. United States, [341 U.S. 214, 221 (1951)], 71
S.Ct. 675; United States v. Marchisio, [344 F.2d
653, 669 (2d Cir. 1965)]; United States v.
Jannuzzio, 22 F.R.D. 223, 227 (D.C. Del. 1958); 2
Wharton's Criminal Procedure s 382, at 389 [12th
ed. 1975]. See 8 Moore's Federa1 Practice, Ru1es
of Criminal Procedure, P 17.07, at 17~25 (2d ed.
1978 rev.). 1 Wright, Federal Practice and
Procedure, Ru1es of Crimina1 Procedure, s 274, at
550 (1969).

Pacarro, supra, 61 Haw. at 87-88, 595 P.2d at 297~98. Jannuzzio,

cited above in Pacarro, cautioned that “it [was] necessary to
guard against action under [FRCP] Rule 17(c) which, contrary to

its spirit and purpose, is aimed at obtaining discovery.”

Jannuzzio, supra, 22 F.R.D. at 227. Marchisio, also cited above

in Pacarro, emphasized that “a[n} [FRCP Rule 17(c)] subpoena
duces tecum in a criminal action is not intended for the purpose

of discovery; the document sought must at the time {the subpoena

5 DCRPP Ru1e 31(c) (“A subpoena may also command the person to
whom it is directed to produce the books, papers, documents or other
objects designated therein.”).

18

»~ *-~ Fon PLIBLXICATI<)N IN vvxz:s"r’s I~Lxv¢'¢xi"l REP<:)RTS .¢\N;l) Pilcnvl'c R);~:PoRrRR …

is issued§ meet the tests of relevancy and admissibility.”
Marchisio, supra, 344 F.2d at 659.

That a subpoena duces tecum in a criminal case may not
be used for the purpose of discovery has likewise been recognized
“

by many criminal trial courts in New York. These courts each

reiterated the fundamental principle that the right of a

. defendant to compel testimony or the production of physical

evidence or documents by subpoena in a criminal action was a
right to require the giving of testimony or the production of
physical evidence and not a discovery vehicle to obtain documents
for pre-trial inspection or to ascertain the existence of
evidence.” People v. Morrison, 559 N.Y.S.2d 1013, 1017 (N.Y.
Crim. Ct. 1990). 1n Morrison, fifteen criminal defendants sought
production of various police records by subpoena duces tecums
issued directly to the New York City Police Department. The
defendants contended that the Sixth Amendment's Compulsory

Process Clause, Brady v. Maryland, 373 U.S. 83 (l963), and New

York's subpoena statute equivalent to HRPP Rule 17(b) authorized.
them to obtain the requested police reports by subpoena. They
argued that the Compulsory Process and Due Process Clauses of the
federal constitution gave them an unlimited and unrestricted
right to compel the government to provide them with the police
reports relating to their cases and that the subpoena authority
provided to defendants by the New York subpoena statute codified
those constitutional rights and independently created a right to

obtain the police reports by subpoena. Judge Benitez rejected

19

we ron PI)BLIC./xiriron !N W}:s'r»’s nixwixl‘l 1¢:1~:1>0111"5 ANI) I>Acx’l»“lc REPQRTER …

the defendants’ argument and granted the New Ycrk City Police
Department’s motion to quash the subpoenas. Judge Eenitez opined
as fo1lows:

A fundamental distinction exists between a
defendant’s right to discovery, as provided in
{the New York discovery statute], and a
defendant’s right to compel the production of
evidence by subpoena, as provided in {the New
York subpoena statute}. The right to discovery
is the right to receive information and documents
from the prosecution and its agents concerning
the case. A defendant’s right to discovery is
governed and limited by statute, [the New York
discovery statute]. That [statute] gives a
defendant a right to demand and, if that demand
is refused, to obtain court ordered disclosure of
certain information, documents and evidence. The
specific material that is required to be
disclosed is specified in the statute and the
timing of its disclosure is, likewise, governed
by statute. .

The right to compulsory process, on the
other hand, is the right to compel witnesses to
come into court pursuant to subpoena and give
testimony or produce documentary or other
physical evidence. The right to compulsory
process has its roots in constitutional
principles which recognize that a defendant must
be able to compel the production of evidence in
the proceedings relating to the case in order to
present a defense to the charges if he or she
chooses to do so. However, based on the
constitutional analysis set forth above and
decisional law, the right to compulsory process
is not an unlimited and unrestricted right to
compel the production of any documents sought by
a defendant. Rather, it is a restricted right,
the exercise of which must satisfy certain
relevancy and evidentiary standards and which is
subject to other available procedures for
obtaining the material sought.

[The New York subpoena statute]
specifically provide{s] that a subpoena, which
includes a subpoena duces tecum, is a process by
which a person may be compelled to attend a court
proceeding and “appear as a witness,” which means
to give oral testimony, or appear and produce
specified “physical evidence.” The right to

20

»\~ »~ »~ ron Ptzizl_,ylic:r'r.l<“)n m wr+;;s'r’s .HA\>VAI‘! Ri:i“»<)ln'rs ANI) PACIF\:C aero R'rrn *

compel material pursuant to subpoena is,
therefore, limited to the compulsion of
“evidence” and not a right to compel the
production of documents that refer to evidence or
that provide leads that will assist in the
identification of evidence or to ascertain the
existence of witnesses or evidence. »While {the
New York subpoena statute1 provides that a
subpoena duces tecum may require the production
of documentary or other physical evidence prior
to trial, this provision relates only to the
timing of the production of evidence pursuant to
compulsion and does not alter the statute’s
requirement that the documents or physical items
whose production is compelled by subpoena be
evidentiary.

Accordingly, the right to compel the
production of evidence is not a right to obtain
discovery of the prosecution’s case prior to
trial or to conduct a search of the files created
by the investigating or arresting authorities for
details of the prosecution’s evidence or leads to
potential defense evidence.

[The] standard [enunciated in United States v.
Nixon, 418 U.S. 683, 689-99 (1974)] [by which
a[n] [FRCP Rule 17(c)] subpoena duces tecum
should be judged before such subpoena will be
upheld] is the appropriate one to be applied in
applications for and motions to quash subpoenas
duces tecum under our [New York subpoena
statute].

In this case the defendants have not
satisfied the requirements that they show that
the materials sought are evidentiary, or if they
are, that their production prior to trial can not
otherwise be obtained or, if they can not be,
that pre-trial production is necessary. Rather,
defendants’ subpoenas are discovery subpoenas and
“fishing expeditions.”

Morrison, supra, 559 N.Y.S.2d at lO17~l9 (internal citations

omitted).
We agree with Judge Benitez that a fundamental
distinction exists between a defendant’s right to discovery, as

provided by our HRPP Rule l6, and a defendant’s right to compel

21

w * lion Ptml;llcxrion IN wxz:s'r’s xi,»xwAl‘l REP<.)R'FS ANI) PACIF;C :KEPQRTER …

the production of documents by subpoena, as provided by our

HR?P Rule l7{b§. The right to discovery in a felony case is the
right to receive material and information from the prosecution
and its agents concerning the case. The right is governed and
limited by HRPP Rule l6. The rule, in section {b}(l)(i)~~(vii),
gives a defendant the right to receive, without reguest, the
seven categories of enumerated material and information within
the prosecution's possession or control. The rule, in section
(b)(2), gives a defendant: (l) the right to receive -- through
the prosecution and upon written request to the prosecution --

specifically designated discoverable material and information in

‘the possession or control of other governmental personnel; (2)

the right to receive the requested material and information by
the diligent good faith effort of the prosecution; and (3) the
right to receive the requested material and information by a
court issued subpoena or order should the prosecution fail to
obtain the requested material and information.

On the other hand, the right to compel the production
of documents by subpoena, pursuant to HRPP Rule l7(b), is the
right to compel a witness to attend a court proceeding and
produce books, papers, or documents to be offered in evidence.
We opined in Pacarro that “[HRPP Rule l7(b)'s] phrase ‘to be
offered in evidence' means that the designated documents

ll

must be of an evidentiary nature[.] Pacarro, supra, 61 Haw. at
87, 595 P.2d at 298. The right to compel the production of

documents pursuant to subpoena is, therefore, limited to the

22

* * * ma PUBJ;,ICA'I*IQN m xvlzs'r’s HAvvAjr‘.r REP<)R'I‘S A.Ni) L>Aclxz‘lc: lR,P;P<)RT;ER …

'..._J

th

U

compulsion of “evidence” and is not a right to compe
production of documents that provide leads to potential evidence.
The right to com el the roduction of documents b sub oena is
J y

not a right to obtain discovery.

We affirm our opinion in Pacarro that HRPP Rule l7(b)

“is not a rule providing for an additional means of discovery.”

Pacarro, supra, 61 Haw. at S6, 595 P.2d at 297. Consistent with

that opinion, we hold today that HRPP Rule l7{b) does not permit
a defendant to directly subpoena police or other governmental
personnel for discoverable material or information independently
and apart from HRPP Rule l6(b)(2).

E. Defendant Kav’s subpoena Duces Tecum lmproperly
Sought Discoverv Pursuant To HRPP Rule l7(b)

Defendant Kay's subpoena duces tecum sought production
of HPD police reports #O7-lO4943, #O4-427752, #O4-448044, and
#O4-455004 that were apparently identified in the criminal
history record of the complainant. The police reports apparently
concerned criminal offenses for which the complainant was
convicted. The police reports -- according to the findings of
fact drafted by the public defender and adopted by the respondent
judge -- “may provide impeachment material [against the
complainant], or assist [defendant Kay] to conduct adequate pre-
trial investigation, to file pre-trial motions, and to make
informed pre-trial strategy decisions.” This factual finding,
together with the public defender's objection to a screening of

the police reports -- which objection was inconsistent with the

23

+-~ ron PUBL_K’:A':‘I<)N in vvss'r’s HA\v/s.l‘x REP<)RTS inn PAcniIc Rx:l>on'rl~:u …

public defender’s subpoena of the reports “for court inspection"
-- indicates that the contents of the police reports were not
known to the public defender when the subpoena was issued on
September lG, 2009 and when the motion to guash was heard on
September 24, 2009 and that the purpose of the public defender’s
subpoena duces tecum was to discover the contents of the police
reports.

The fact that the police reports supposedly concerned
criminal convictions of the complainant did not alone make the
reports impeachment evidence. HawaFi Rules of Evidence Rule 609
provides that “[f]or the purpose of attacking the credibility of
a witness, evidence that the witness has been convicted of a
crime is inadmissible except when the crime is one involving
dishonesty.” Absent knowledge by the public defender that the
subpoenaed police reports involved crimes of dishonesty, the
public defender’s subpoena was not a subpoena duces tecum for the
production of impeachment evidence pursuant HRPP Rule l7(b) or
for the production of evidence that, at the time the subpoena was
issued, met the tests of relevancy and admissibility. Marchisio,
§gp;a, 344 F.2d at 659. lnstead, the subpoena sought disclosure
of material claimed to be discoverable and in the possession of
police personnel. Disclosure under such circumstances was
subject to the discovery procedure of HRPP Rule l6(b)(2).

The respondent judge found that police reports #G7-
lO4943, #O4-427752, #O4-448044, and #O4-455004 “{are]

discoverable.” He concluded that the police reports are subject

24

*»~ - F¢:)R Pr;zts,l,rciii“lon in Wrs"r~’s H»xvv,fxl‘lt REP<)RTS ANI) ,I>Acl\sil'ti Rsi>c)!z'rsli en

to “direct subpoena” by defendant Kay on HPD pursuant to HRPP
Rule l7(b), “independent and apart from HRPP Rule l6{b}(2)”
because: {l) defendant Kay has a constitutional right to obtain
discoverable materials and to compulsory process to compel the
production of documents; (2) HRPP Rule 16 “delineates only a
certain minimum level of discovery” and “there is no exemption
within HRPP Rule l7 against the use of a subpoena duces tecum
where the subject matter of the subpoena may be covered by HRPP
Rule l6;” (3) HRPP Rule l7 “preserve[s] {defendant Kay’s}
constitutional and statutory rights to a speedy trial,” which is
“especially important” when a defendant is in pretrial custody;
and (4) “allowing discovery by subpoena directly on HPD
independently and apart from HRPP Rule l6" “accomplish[es] the
objectives of HRPP Rule 2 by making the discovery process
simpler.”l

The respondent judge effectively ruled -- contrary to

Pacarro -- that HRPP Rule l7(b) provides a defendant with a means

of discovery in addition to the discovery provided by HRPP Rule

~l6. The respondent judge neither mentioned nor distinguished

Pacarro. He instead cited our opinion in State v. White, 92

n

Hawafi l92, 990 P.2d 90 (l999) for the proposition that “a

defendant may directly subpoena HPD for discoverable materials

6 HRPP Rule 2. PURPOSE AND CONS'I'RUC'I'ION.

These [HRPP] rules are intended to provide for
the just determination of every penal proceeding. They
shall be construed to secure simplicity in procedure,
fairness in administration and the elimination of
unjustifiable expense and delay.

25

»=*- ron PUBL!CATI¢)N IN vw'ss'r's l»xAw'Al‘l nemours AND PA<:IFI<: RE.P<)RTER …

under HRPP Rule l? independently and apart from HRP? Rule l6.”

In White, defendant White moved to compel discovery from the
prosecution of police reports concerning pending criminal charges
and investigations against convicted defendant Cabrera, who had
implicated White for burglary. The trial court denied the motion
to compel upon reasoning that the police reports were irrelevant
and not discoverable under HRPP Rule l6 and White had not sought
production of the reports by a subpoena duces tecum on HPD.

White thereupon subpoenaed HPD for production of the police
reports. The reports were delivered to the trial court, which
inspected the reports, found them irrelevant, and denied
production. White was subsequently convicted of the burglary
charges and appealed, arguing, inter alia, that the motion to
compel discovery was erroneously denied. We held that the police
reports sought by White were relevant and discoverable, but that
the denial of the motion to compel was harmless error because
Cabrera, at White’s trial, admitted his involvement in criminal

activity. The issue before us in White was the relevancy of the

police reports for purposes of discovery, not the propriety of
obtaining the reports by subpoena duces tecum. Whi;e does not
stand for the proposition that HRPP Rule l7(b) allows discovery
independently and apart from HRPP Rule l6.
The respondent judge's ruling that HRPP Rule l7(b)

permits discovery independently and apart from HRPP Rule l6 was
based on Judge Goodman’s view in Burnette, §up;a, that the New

York subpoena statute equivalent to HRPP Rule l7(b) permits

26

=~=~ - ron PUBL!,CATI<)N m vs/Es'r’s HAW'AI‘I REP<)RTS /u\'i) .P.ACIFIC xilaro’n'rl_am en

discovery in accordance with tHe constitutional rignt to
compulsory process. Judge Goodman so opined by rejecting the
opposing view of Judge Benitez in MQr;isQg, supra.7 Hcwever,
Judge Goodman’s view is not legally sound because, as Judge
Benitez opined in Morrison and as we have opined herein, the
right to compulsory process is not a right to compel the
production of documents that provide leads to potential defense
evidence. Defendant Kay's right to compulsory process is not a
right to obtain police reports that may provide impeachment
material or may assist with pretrial investigation and strategy.
Defendant Kay asserted and the respondent judge found
that HPD police reports #O7;lO4943, #O4-427752, #O4~448044, and
#O4~455004 are discoverable. If that is the case, then as
discoverable material not in the prosecutor's possession, the
police reports are subject to the provisions of HRPP Rule
l6(b)(2). The rule requires the public defender to submit a
written request for the police reports to the prosecutor,
requires the prosecutor to make a diligent good faith effort to
secure the reports from HPD, and if the prosecutor’s efforts are
unsuccessful, the circuit court, upon motion by the public

defender, is required to issue a suitable subpoena or order for

7“While this court recognizes that a number of trial courts have
come to different conclusions on {the] question fof whether the New
York subpoena statute creates an independent right of discoveryl, l
respectfully decline to adhere to the views they have expressed. See,
e.g. People v. Morrison [599 N.Y.S.2d lOl3 (N.Y. Crim. Ct. l990)]
[additional citations omitted].” Burnette, supra, 612 N.Y.S.2d at
1010-ll.

27

+-* ron PUBLI,CATI<:)N m \vl@;s'r’s HAWAI‘! REPoR'rs AN.I) Pircnilc: REP<:)RTER …

production of the reports to the public defender. However, the
public defender circumvented the HRPP Rule l6(b){2) procedure by
directly subpoenaing HPD for the reports pursuant to HRPP Rule
l7{b). The respondent judge upheld the subpoena: ill to
implement defendant Kay's right to compulsory process, even
though the subpoena sought discovery, not compulsion of evidence;
(2} to protect defendant Kay's speedy trial right, even though
defendant Kay had been released from pretrial custody in 2008 and
had waived his speedy trial right seven times since arraignment,
with the seventh waiver being effected on September 24, 2009 for
the purpose of obtaining the complainant's police reports; and
(3) to “make the discovery process simpler,” even though HRPP
Rule l6(b)(2) mandated the discovery process to be followed.

That HRPP Rule 2 requires that our Rules of Penal Procedure “be
construed to secure simplicity in procedure” is no basis for
circumventing the mandatory procedure of HRPP Rule l6(b)(2).

The respondent judge's refusal to quash defendant Kay's
subpoena duces tecum as improperly seeking discovery pursuant to
HRPP Rule l7(b) constituted a flagrant and manifest abuse of
discretion. Petitioner HPD demonstrated a clear and indisputable
right to a vacatur of the 0ctober 8, 2009 order denying HPD’s
motion to quash the subpoena duces tecum.

C. HPD Properly Souqht Redress From The October 8,
2009 Order Bv_Mandamus.

“The right of appeal in a criminal case is purely

statutory and exists only when given by some constitutional or

28

- w iron m;fsr_;xcixrltc:)n mr wzzs'r’s trl;Aw'Arr‘l larl>olzfrs AND PA<::IF!C Rsl>orrrriz …

statutory provision.” Grattafiori v. State, ?9 Hawaid l0, 13,
897 P.2d 937, 940 €l995).

ln circuit court criminal cases, appeals are authorized
by HRS §§ 64l~ll {Supp. 2009§, 64l~l3 {Supp. 2009), and 64l»l7
§Supp. 2009). HRS § 6@l~ll provides that “[alny party aggrieved
by the judgment of a circuit court in a criminal matter may
appeal to the intermediate appellate court{.]” HRS § 64l~l3
provides that “{a]n appeal may be taken by and on behalf of the
State from the district or circuit courts to the intermediate
appellate court . . . in all criminal matters, in [ten
enumerated] instances.” HRS § 641-17 provides that “an appeal in
a criminal matter may be allowed to a defendant from the circuit
court to the intermediate appellate court . . . from a decision
denying a motion to dismiss or from other interlocutory orders,
decisions, or judgments, whenever the judge in the judge's
discretion may think the same advisable for a more speedy
termination of the case.”

Criminal No. 07-l~l3l5 is a circuit court criminal
matter filed by plaintiff State of Hawafi against defendant Obed
K. Kay. HPD is not a party to the case. As a nonparty, HPD is
not authorized to appeal the respondent judge's 0ctober 8, 2009
order pursuant to HRS § 64l~ll if judgment is entered against
defendant Kay. HPD is also not authorized to appeal the 0ctober
8, 2009 order pursuant to the interlocutory appeal statute for
defendants, HRS § 641-l7, or pursuant to the appeal statute for

the prosecution, HRS § 641-l3. Having no remedy by way of

29

»» w mm PUBLICATI<)N m WEST~*S n,xwtxr‘x REPQRTS AND PA¢;:IFIC REPc)R'rER …

appeal, HPD properly 3cught redress from the OCt0b@r S, 2009

order by mandamu5.

Carrie K.S. Okinaqa,
C0rp0rati0n C0unSel,

and Kyle K. Chanq, Deputy

C0rp0ration C0unSel, $§AyMLL@Q~¢WMiQAL4@L;9t

for petitioner

%§m»€,£N4@)%W
A/)M /1¢@¢»¢.:..,//

CONCURRENCE BY ACOBA, J.

1 c0ncnr in the result 0nly.

/Q-~M<

30