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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2024
08:21 AM
Dkt. 72 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MALIONI KALONI, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX(1))
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, McCullen and Guidry, JJ.)
Defendant-Appellant Malioni Kaloni (Kaloni) appeals
from the March 29, 2023 Amended Judgment; Conviction and
Sentence; Notice of Entry (Amended Judgment)1 entered by the
Circuit Court of the Second Circuit (Circuit Court)2 in favor of
Plaintiff-Appellee the State of Hawai#i (State). On December 9,
2022, Kaloni was convicted of Promoting a Dangerous Drug in the
Third Degree (Count I), in violation of Hawaii Revised Statutes
1
The Amended Judgment was superceded by a May 4, 2023 Second
Amended Judgment; Conviction and Sentence; Notice of Entry ( Second Amended
Judgment). The Second Amended Judgment corrects a typo in Kaloni's first
name.
2
The Honorable Kirstin M. Hamman presided.
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(HRS) § 712-1243(1) (2014).3 The Circuit Court sentenced Kaloni
to five (5) years imprisonment, with credit for time served.
Kaloni raises three points of error on appeal,
contending that the Circuit Court erred in: (1) failing to
strike Maui Police Department (MPD) crime laboratory (MPD Lab)
criminalist Amber Corpuz's (Corpuz's) testimony because the State
failed to provide the Gas Chromatograph/Mass Spectrometer (GC/MS)
manual(s) and MPD Lab standard operating procedures (SOPs)
pursuant to Hawai#i Rules of Evidence (HRE) Rule 705; (2)
admitting the GC/MS test results without proper foundation;4 and
(3) proceeding with Kaloni's jury trial in absentia.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Kaloni's points of error as follows:
(1) We begin with Kaloni's argument that his
constitutional rights were violated when the Circuit Court
proceeded with the jury trial in absentia. Kaloni argues that
the Circuit Court should not have continued the jury trial in
3
HRS § 712-1243(1) states:
§ 712-1243 Promoting a dangerous drug in the third
degree. (1) A person commits the offense of promoting a
dangerous drug in the third degree if the person knowingly
possesses any dangerous drug in any amount.
4
Kaloni asserts this error should result in Kaloni's conviction be
reversed for insufficient evidence.
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absentia, under Hawai#i Rules of Penal Procedure (HRPP) Rule 43,5
without either an attempt to obtain his presence via a short
continuance or a colloquy to ensure knowing waiver of his
fundamental constitutional rights.
"[A] [d]efendant's right to be present at all stages
of his [or her] trial is of fundamental importance and is
derived from the confrontation clause of the Fifth Amendment
to the United States Constitution and made applicable to the
states by the due process clause of the Fourteenth
Amendment."
State v. Vaimili, 135 Hawai#i 492, 501, 353 P.3d 1034, 1043
(2015) (citation omitted). HRPP Rule 43 codifies a defendant's
constitutional right to be present at trial, as well as
exceptions to the defendant's continued presence. Id. When a
defendant has not expressly requested and been granted permission
to leave an on-going trial, but is otherwise voluntarily absent,
the trial court must engage in the balancing test outlined in
State v. Okumura, 58 Haw. 425, 570 P.2d 848 (1977), before
proceeding with trial. Vaimili, 135 Hawai#i at 503, 353 P.3d at
5
HRPP Rule 43 states, in pertinent part:
Rule 43. PRESENCE OF THE DEFENDANT.
(a) Presence required. The defendant shall be
present at the arraignment, at the time of the plea, at
evidentiary pretrial hearings, at every stage of the trial
including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as
otherwise provided by this Rule.
(b) Continued presence not required. The further
progress of a pretrial evidentiary hearing or of the trial
to and including the return of the verdict shall not be
prevented and the defendant shall be considered to have
waived the right to be present whenever a defendant,
initially present,
(1) is voluntarily absent after the hearing or trial
has commenced (whether or not the defendant has been
informed by the court of the obligation to remain during the
trial); or
(2) engages in conduct which is such as to justify
exclusion from the courtroom.
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1045. A defendant's right to confront his accusers is balanced
against the following factors:
(1) the time and expense caused by [a] defendant's efforts
to defeat the proceedings by his departure or flight; (2)
the likelihood that the trial could soon take place with the
defendant present; (3) the difficulty of rescheduling; (4)
the inconvenience to jurors; and (5) harm to the State's
case.
Id. (citations and internal quotation marks omitted); see also
Okumura, 58 Haw. at 429-30, 570 P.2d at 852-53. However, the
narrow discretion given to the trial judge to proceed with the
trial should be exercised only when the public interest clearly
outweighs that of the absent defendant. Okumura, 58 Haw. at 430,
570 P.2d at 852.
In Okumura, the supreme court stated that "[t]he
voluntary absence provision of Rule 43 generally applies in the
case of a defendant who has in fact escaped or absconded, and
does not apply to a defendant who is in custody." 58 Haw. at
428, 570 P.2d at 851 (citing Cross v. United States, 117
U.S.App.D.C. 56, 325 F.2d 629 (D.C. Cir. 1963)) (emphasis added).
In Cross, the defendant was in custody and refused to return to
the courtroom, and the court of appeals rejected the government's
argument that the defendant had voluntarily absented himself from
trial because the defendant was in custody and the voluntary
absence provision was deemed not to apply. Id. at 428, 570 P.2d
at 851-52 (emphasis added). However, in Matias v. State, a
majority of the supreme court found that a defendant did
voluntarily waive her right to be present at trial when
[a]ppellee's trial counsel reported to the court that
[appellee] refused to return to the courtroom, and [counsel]
brought with him the matron in charge of the holding cell,
who confirmed, in explicit terms, that that was the
situation. The appellee refused to come out of the holding
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cell and talk to the attorney, and [appellee] informed the
matron that [appellee] was not going to return to the court
that, or any other, day.
73 Haw. 147, 150, 828 P.2d 281, 283 (1992) (emphasis added).
Here, the record indicates that the only information
known about Kaloni's absence was that the "MCCC [has] informed
[the court] that Mr. Kaloni has refused to leave his cell, and
any attempt that [MCCC] make[s] to take him out of his cell, he
fights with them. So he's refusing to come to court for his
trial." Kaloni's attorney expressed his surprise, and indicated
that he made an attempt to get in touch with Kaloni, but he was
unable to do so. The Circuit Court did not expressly say it was
conducting the Okumura factor test, but the court did discuss the
difficulty of rescheduling and the inconvenience to the jurors.
The court stated that if the trial went into the following week
it appeared that at least one juror (possibly more) would be lost
due to travel plans. The Circuit Court found that pursuant to
HRPP Rule 43(b), Kaloni voluntarily absented himself from the
trial after it commenced, and therefore, Kaloni waived the right
to be present. It appears from the record that the third and
fourth Okumura factors support the decision to proceed with trial
in Kaloni's absence.
However, we cannot conclude that the public interest
here "clearly outweighs" the interests of Kaloni. Even if the
trial did need to go into the following week, there was at least
one alternate juror available to replace the one known departing
juror, and the court did not confirm whether or not it would lose
jurors. Second, the State did not present any indication that
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their case would be prejudiced by a delay, meaning the fifth
Okumura factor does not weigh in favor of a trial in absentia.
And third, and most important, the court did not assess "the
likelihood that the trial could soon take place with the
defendant present" or attempt to gather sufficient information to
determine that Kaloni waived his right to be present at trial.
The court simply accepted the report that Kaloni was refusing to
come to court at face value, without any further inquiry or
assessment.
There is no evidence showing that the trial could not
have been delayed until such a time as Kaloni could have been
brought back into court, as there was no action taken by the
court to determine why Kaloni was refusing to be present. See
Okumura, 58 Haw. at 430, 570 P.2d at 852. Unlike Matias, the
sheriff or guard in charge of the holding cell did not come into
the court to testify regarding Kaloni's situation, nor did Kaloni
relay that he would never return to court. In fact, Kaloni was
in court the following day. At a minimum, the court could have
delayed the trial long enough to allow counsel for Kaloni time to
contact him. That did not occur. Cross and Okumura tell us that
Rule 43 generally does not apply to a defendant who is in
custody, and because the factual record such as the one developed
in Matias is not present, we conclude that the Circuit Court
abused its discretion in conducting the jury trial in absentia
under the circumstances. See Okamura, 58 Haw. at 428, 570 P.2d
at 851-52. Thus, the judgment of conviction is vacated, and this
case remanded for a new trial. See id. at 430, 570 P.2d at 853.
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However, Kaloni further contends that there is
insufficient evidence to support a conviction. Because the
double jeopardy clause bars retrial of a defendant if there is an
insufficiency of evidence, we will review Kaloni's other points
of error. See State v. Kaulia, 128 Hawai#i 479, 496, 291 P.3d
377, 394 (2013).
(2) Kaloni argues that the test results from the GC/MS
are not reliable because (1) no scientific principle for the
GC/MS was identified, and (2) foundation showing that the GC/MS
was in proper working order was lacking. Kaloni asserts that
because the GC/MS results lacked foundation, there is
insufficient evidence to convict him. However, Kaloni's point of
error is not in compliance with Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4). HRAP Rule 28(b)(4) requires each
point of error to include "where in the record the alleged error
occurred[,]" and "where in the record the alleged error was
objected to or the manner in which the alleged error was brought
to the attention of the court or agency." Here, Kaloni does not
show where the alleged error occurred, or where the alleged error
was objected to.
HRAP Rule 28(b)(4) states that "[p]oints not in
compliance with this section shall be disregarded, except that
the appellate court, at its option, may notice a plain error not
presented." We decline to search the record and review for plain
error as to foundational issues. See generally State v. Long, 98
Hawai#i 348, 353, 48 P.3d 595, 600 (2002) (affirming that "a
'lack of foundation' objection generally is insufficient to
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preserve foundational issues for appeal because such an objection
does not advise the trial court of the problems with the
foundation"); see also State v. Valente, CAAP-XX-XXXXXXX, 2023 WL
3055611, *3 (Haw. App. April 24, 2023) (SDO) (declining to
address point of error where appellant failed to state where in
the record the alleged error occurred and where the alleged error
was brought to the attention of the trial court).
(3) Kaloni argues that the Circuit Court erred in
allowing Corpuz to testify after the State failed to provide
Kaloni with the GC/MS manual and MPD Lab's SOPs in discovery
pursuant to HRE Rule 705, because Corpuz's work with the GC/MS
that led to her opinion that the substance in question was
methamphetamine was based on the GC/MS manual and/or the MPD
Lab's procedures. HRE Rules 703 and 705 provide:
HRE Rule 703. Bases of opinion testimony by experts .
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived
by or made known to the expert at or before the hearing. If
of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in
evidence. The court may, however, disallow testimony in the
form of an opinion or inference if the underlying facts or
data indicate lack of trustworthiness.
HRE Rule 705. Disclosure of facts or data underlying
expert opinion .
The expert may testify in terms of opinion or
inference and give the expert's reasons therefor without
disclosing the underlying facts or data if the underlying
facts or data have been disclosed in discovery proceedings.
The expert may in any event be required to disclose the
underlying facts or data on cross-examination.
HRE Rule 705 allows an expert to give their opinion so
long as the "underlying facts or data" are provided. An example
of how this works is set forth in a recent Hawai#i Supreme Court
opinion, State v. Moon, 152 Hawai#i 195, 209-10, 524 P.3d 1219,
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1233-34 (2023). In Moon, the defendant sought to strike an
expert's opinion testimony concerning the victim's cause of
death, arguing that medical records underlying the expert's
opinion were facts or data underlying the expert's opinion and
they were not produced. Id. at 203, 524 P.3d at 1227. The
supreme court explained, however, that the underlying facts or
data were disclosed in the form of the autopsy report, which
included all the relevant data, so the medical records did not
need to be separately produced. Id. at 209-10, 524 P.2d at 1233-
34.
Here, the underlying facts or data supporting Corpuz's
opinion that the evidence in question contained methamphetamine
were the reported results of the series of tests performed by
Corpuz. Kaloni does not argue that in the reported test results
the State failed to disclose all relevant information that Corpuz
gleaned from the tests (or otherwise). We conclude that there
was no violation of HRE Rule 705 here, and the Circuit Court did
not err in denying Kaloni's motion to strike.
For the reasons set forth above, the Circuit Court's
May 4, 2023 Second Amended Judgment is vacated, and this case is
remanded to the Circuit Court for a new trial.
DATED: Honolulu, Hawai#i, February 28, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Phyllis J. Hironaka,
Deputy Public Defender, /s/ Sonja M.P. McCullen
for Defendant-Appellant. Associate Judge
Richard B. Rost, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
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