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Electronically Filed
Supreme Court
SCPW-17-0000532
21-NOV-2017
08:24 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
SI UFAGA MOANA, Petitioner,
vs.
THE HONORABLE FRANCES Q. F. WONG, Judge of the
Family Court of the First Circuit,
State of Hawaii, Respondent Judge,
and
STATE OF HAWAII, Respondent.
(SCPW-17-0000532; CASE NO. 1FFC-17-0000575)
JAYVAN C. CURIOSO, Petitioner,
vs.
THE HONORABLE HILARY BENSON GANGNES, Judge of the
District Court of the First Circuit, Honolulu Division,
State of Hawaii, Respondent Judge,
and
STATE OF HAWAII, Respondent.
(SCPW-17-0000171; CASE NO. 1DCW-17-0000868)
SCPW-17-0000532
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ORIGINAL PROCEEDINGS
NOVEMBER 21, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
Petitioner Si Ufaga Moana (Moana) seeks a writ of
mandamus directing the Honorable Frances Q. F. Wong to order his
release forthwith from custody in accordance with the
requirement that a defendant be released upon motion if a
preliminary hearing has not commenced within two days of the
defendant’s initial appearance. See Hawaii Rules of Penal
Procedure (HRPP) Rule 5(c)(3) (2014). Petitioner Jayvan C.
Curioso (Curioso) also seeks a writ of mandamus directing the
Honorable Hilary Benson Gangnes to order his release forthwith
from custody in accordance with the two-day preliminary hearing
requirement.
Because the State respectively charged Moana and
Curioso (petitioners) by information and grand jury indictment
during the pendency of these petitions, obviating the need for
preliminary hearings, we ultimately deny the petitions as moot.
We nonetheless consider the legal issues at the heart of these
cases based on an exception to the mootness doctrine because
they are capable of repetition but would otherwise evade review.
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Under our rules of court, when a delay in the
commencement of a preliminary hearing is not caused by a
defendant’s condition, action, or request and occurs without the
defendant’s consent, the keeping of a defendant in custody is
permitted only when compelling circumstances justify an ongoing
deprivation of liberty. HRPP Rule 5(c)(3). We now provide
guidance as to when circumstances are compelling for purposes of
denying a defendant’s motion for release from custody when the
defendant is held for a period of more than two days after
initial appearance without commencement of a preliminary
hearing.
I. FACTS AND PROCEDURAL HISTORY
A. Moana’s Arrest and Preliminary Hearing
On June 20, 2017, police arrested Moana for assault in
the second degree in violation of Hawaii Revised Statutes (HRS)
§ 707-711 (2014 & Supp. 2016). On June 22, 2017, Moana was
charged by complaint with abuse of family or household members,
which was statutorily enhanced to a class C felony due to the
alleged incident occurring in the presence of a minor household
member under the age of 14. HRS § 709-906(1), (9) (Supp. 2016).
The same day, Moana made his initial appearance before the
Family Court of the First Circuit (family court); the family
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court confirmed bail at $30,000 and issued an order scheduling a
preliminary hearing for June 26, 2017.1
On the day of the preliminary hearing, the State
requested a continuance, informing the family court that the
complaining witness had “absented herself” from the proceeding.
The prosecutor stated that the complainant had expressed a
reluctance to come to court when she was served on the preceding
Friday by the prosecuting attorney’s investigators but did not
indicate that she did not intend to appear. The prosecutor
explained that he had since been contacted by the complainant’s
aunt, who informed him that she had taken food to the airport to
give to the complainant and her child. Based on this
information, the prosecutor stated that he was not sure whether
the complaining witness was present on the island. He requested
additional time to locate and secure the complainant’s
cooperation, explaining that his office might obtain a material
witness order if she was found on the mainland and refused to
return voluntarily. The prosecutor advised the court that,
1
HRPP Rule 54(a) (1996) states that the HRPP “apply to all penal
proceedings in all courts of the State of Hawaii, except as provided in” HRPP
Rule 54(b). Moana’s case did not fall within any of the exceptions listed in
HRPP Rule 54(b).
Because Moana’s initial appearance occurred on a Thursday, the
scheduled hearing would have occurred within the two-day time limit as
calculated under HRPP Rule 45(a) (2012), which excludes holidays and
weekends. All references to time limits or elapsed time are computed in
accordance with this rule.
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because Moana’s initial appearance was on June 22, 2017, “the 30
days for preliminary hearing would run on Saturday, July 22nd”
and requested that the hearing be rescheduled before that date.2
Moana moved to dismiss the complaint or, in the
alternative, for the family court to set aside bail and release
him on his own recognizance to the supervision of his church
pastor or mother, who were present in the courtroom. The
prosecutor opposed Moana’s motion, citing the nature of the
offense. He explained that the complainant was thirty-three-
weeks pregnant at the time Moana allegedly bit and punched her,
causing injury to her ear and a possible concussion. He further
stated that the argument leading to the incident arose because
the complaining witness asked for money to buy food for her and
Moana’s two-year-old child. The prosecutor asserted that the
child was present during the events and Moana allegedly threw
Lego-style blocks at the child’s head, causing bruising.3 He
also pointed to Moana’s 2014 arrest for abuse of the same
complaining witness, contending that the alleged attack was an
2
HRPP Rule 5(c)(3) requires courts to schedule a preliminary
hearing within thirty days of a defendant’s initial appearance “if the
defendant is not in custody.” If a defendant has been “held in custody for a
period of more than 2 days after initial appearance without commencement of a
defendant’s preliminary hearing,” the rule mandates the defendant’s release
upon his or her own motion. This provision is subject to several narrow
exceptions, discussed infra.
3
The prosecutor explained that the State intended to pursue
misdemeanor child abuse charges against Moana in a separate proceeding.
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escalation of violence toward the individual and that Moana
might be a danger to her. Lastly, the State argued that there
had been “some obstruction” from Moana’s family during the
investigation, making release into their custody inappropriate.
Taken together, the State concluded, these factors were
compelling reasons to continue the hearing and to keep Moana in
custody.
The family court granted the State’s motion for a
continuance and denied Moana’s motion for dismissal of the
complaint. Seemingly relying on the State’s assertion regarding
the thirty-day period in which a preliminary hearing must be
held, the court noted that the “hearing [had been] set very
expeditiously within the 30-day limit,” which left the court
free to continue it without legal obstacle.
With respect to bail reduction, the family court noted
several factors guiding its discretion in setting or modifying
bail, including Moana’s criminal history, the nature of the
offense, and the vulnerable nature of the complainant and their
child.4 The prosecutor asked for clarification regarding whether
4
The family court also expressed general concern regarding
individuals who threaten or otherwise attempt to persuade a witness not to
testify, referencing an unrelated recent news story. Because the parties did
not allege such coercion and the record does not reveal any linkage of the
news story to the facts of the case, we do not address the court’s general
concern.
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these findings relating to bail also constituted compelling
reasons for the continuance and for keeping Moana in custody, to
which the court answered affirmatively.
The family court confirmed bail at $30,000 and
scheduled the continued preliminary hearing for July 13, 2017,
which was 15 days after Moana’s initial appearance. The court
informed the prosecutor that it had intentionally left time
before the presumed 30-day deadline for another continuance if
necessary, but it went on to warn that “the next time . . . if
the complaining witness fails to appear . . . [the State]
need[s] a lot more information than what somebody might have
said.” Prior to the continued hearing date, Moana filed with
this court a petition for a writ of mandamus.
B. Curioso’s Arrest and Preliminary Hearing
Police arrested Curioso on March 10, 2017, for abuse
of family or household members, HRS § 709-906 (2014 & Supp.
2016). On March 13, 2017, Curioso was charged by complaint in
the District Court of the First Circuit (district court) with
kidnapping, HRS § 707-720(1)(d) (2014), terroristic threatening
in the first degree, HRS § 707-716(1)(e) (2014), and abuse of
family or household members with a statutory enhancement to a
class C felony based on the charged conduct, HRS § 709-906(1),
(8). Bail was set at $150,000 in the aggregate, and a
preliminary hearing was scheduled for March 15, 2017.
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On the day of the preliminary hearing, the prosecutor
requested a continuance to March 21, 2017, to obtain a Tagalog
interpreter for the complainant, for whom English was a second
language. Curioso objected and moved for release on his own
recognizance or, in the alternative, a reduction in bail. The
court denied Curioso’s requests and granted the State’s motion
for a continuance. The court explained that the State’s request
was “reasonable” given that an interpreter was “necessary for
the witness to give testimony” and the State was otherwise ready
with its witnesses. The preliminary hearing was rescheduled by
the court to March 21, 2017, which was six days after Curioso’s
initial appearance.5 On March 16, 2017, Curioso filed a petition
for a writ of mandamus.
II. THE PETITIONS FOR WRITS OF MANDAMUS
Moana and Curioso argue that the judges in their
individual cases violated HRPP Rule 5(c)(3) by denying their
respective motions for release on their own recognizance. This
rule requires that a court release a defendant upon motion “if
the defendant is held in custody for a period of more than 2
days after initial appearance without commencement of a
defendant’s preliminary hearing.” HRPP Rule 5(c)(3). However,
5
The period also included a weekend, which is not figured into
this total. See supra, note 2.
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the State may maintain custody of a defendant when the delay is
caused by the defendant or occurs with the defendant’s consent.
Id. Release is also not required when the failure to commence a
timely preliminary hearing is attributable to a “compelling fact
or circumstance” that would preclude determination of probable
cause or commencement of the hearing or would render the
defendant’s “release to be against the interest of justice.”
Id.
In his petition for a writ of mandamus, Moana argues
that a preliminary hearing did not commence within two days from
his initial appearance, obligating the family court to release
him upon his motion. Moana states that the court appeared to
base its ruling denying his release on a finding of a compelling
fact or circumstance. He disputes, however, that compelling
reasons existed to hold him in custody under any of HRPP Rule
5(c)(3)’s exceptions. In its response, the State argues that
the court properly found compelling reasons to keep Moana in
custody, including Moana’s criminal history, the nature of the
alleged offense, and the vulnerable nature of the complainant
and their child.
In his petition, Curioso similarly argues that a
preliminary hearing did not commence within two days of his
initial appearance and that none of HRPP Rule 5(c)(3)’s
exceptions justified his continued detention. He asserts that
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the State’s failure to obtain an interpreter for the complainant
was neither a compelling circumstance precluding the
commencement of a preliminary hearing within two days of his
initial appearance nor one rendering his release against the
interest of justice. He points out that the State had five days
to speak with the complainant following his arrest to determine
if an interpreter was needed for the preliminary hearing.
The State responds that it diligently attempted to
find an interpreter as soon as the complainant requested one.
In a declaration attached to the State’s response, the
prosecutor who requested the continuance avers that her review
of case materials prior to the hearing did not reveal a need for
an interpreter and that she was not informed of the request
until the morning of the scheduled preliminary hearing. She
further avers that the State’s victim witness advocate made
calls to ten different interpreters but was unable to arrange
one for the scheduled time. The prosecutor also states that she
was unable to convince the complainant to proceed without an
interpreter. The prosecutor does not aver that any of this
information was placed on the record on the date of the
scheduled hearing.
The State asserts that the lack of an interpreter to
aid the complainant in her testimony constituted a compelling
circumstance that justified the district court’s decision to not
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release Curioso. In support of its argument, the State points
to this court’s repeated pronouncements regarding the
fundamental importance of individuals involved in litigation
understanding the proceedings and being understood in turn.
III. DISCUSSION
A. Mootness
As a threshold matter, we address whether the merits
of the petitions are properly considered by this court. We have
long adhered to certain “prudential rules of judicial self-
governance ‘founded in concern about the proper--and properly
limited--role of the courts in a democratic society.’” Kona Old
Hawaiian Trails Grp. v. Lyman, 69 Haw. 81, 87, 734 P.2d 161, 165
(1987) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)); Cty.
of Haw. v. Ala Loop Homeowners, 123 Hawaii 391, 405, 235 P.3d
1103, 1117 (2010). Among these is the doctrine of mootness,
which typically limits our rulings to “live controvers[ies] of
the kind that must exist if courts are to avoid advisory
opinions on abstract propositions of law.” Kona, 69 Haw. at 87,
734 P.2d at 165 (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)).
Accordingly, we will generally refrain from deciding cases in
which we can no longer grant the relief a party seeks. Ala Loop
Homeowners, 123 Hawaii at 405, 235 P.3d at 1117 (citing
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Kahoohanohano v. State, 114 Hawaii 302, 332, 162 P.3d 696, 726
(2007)).
When a defendant is indicted or charged by criminal
information, a preliminary hearing need not--and, under our
rules, cannot--be conducted. HRPP Rule (5)(c)(1) (2014).6 This
is because a complaint and preliminary hearing, indictment, and
criminal information are separate, parallel methods by which a
felony prosecution may be initiated. See Haw. Const. art. I, §
10; HRPP Rule 7(a)–(b) (2012). The “real purpose” of a
preliminary hearing is to confirm that probable cause exists to
hold a defendant in custody, “and no purpose remains for” the
hearing when probable cause is established through another
mechanism, including indictment. Chung v. Ogata (Ogata I), 53
Haw. 364, 366, 493 P.2d 1342, 1343 (1972) (citing State v.
Tominaga, 45 Haw. 604, 372 P.2d 356 (1962)). We have thus held
that both a defendant’s right to a preliminary hearing and a
trial court’s jurisdiction to conduct such a hearing are cut off
by an indictment, even when it is returned after the continuance
of the preliminary hearing. Chung v. Ogata (Ogata II), 53 Haw.
395, 395, 495 P.2d 26, 26 (1972); Tominaga, 45 Haw. at 610, 372
6
HRPP Rule (5)(c)(1) states that “the court shall schedule a
preliminary hearing, provided that such hearing shall not be held if the
defendant is indicted or charged by information before the date set for such
hearing.” (Emphasis added.)
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P.2d at 360.7 The same would logically hold true for an
information, by which probable cause may also be established.
See HRS § 806-85 (2004).
On July 7, 2017, this court issued an order directing
the State to respond to Moana’s petition for mandamus. The
State filed a timely answer on July 10, 2017. The following
day, prosecutors charged Moana by felony information, cutting
off his right to the continued preliminary hearing two days
before it was scheduled to take place.8 Similarly, this court on
March 17, 2017, ordered the State to respond to Curioso’s
petition. The State filed a timely answer on March 20, 2017--
the day before Curioso’s continued preliminary hearing. The
next day, the State obtained a grand jury indictment of Curioso,
7
Tominaga and the two Ogata cases were decided prior to 1977, when
preliminary hearings and indictments were governed by the District Court
Rules of Penal Procedure (DCRPP) and Hawaii Rules of Criminal Procedure
(HRCrP). The HRPP are substantially modeled after the DCRPP and HRCrP,
however, and the holdings of Tominaga and the two Ogata cases are not
undermined by the adoption of the HRPP. See infra (discussing the history
and adoption of HRPP Rule 5(c)(3)).
8
Unlike in Curioso’s case, in which the State filed a notice
informing this court of the defendant’s indictment, the State did not notify
this court that it had charged Moana by information. Only research of the
family court docket by this court revealed the supervening charge. Although
Hawaii Rules of Evidence (HRE) Rule 201 (1980) permits us to take judicial
notice of such records on our own accord, we remind litigants that their duty
of candor toward this tribunal includes a responsibility to disclose material
facts that may affect the outcome of a case, including those facts that would
render the case moot. See AIG Haw. Ins. Co. v. Bateman, 82 Hawaii 453, 460,
923 P.2d 395, 402 (1996).
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which effectively blocked his preliminary hearing from
proceeding hours before its scheduled commencement.
The petitioners’ rights to preliminary hearings--and
release prior to those hearings--were extinguished when probable
cause to hold them in custody was determined through other
mechanisms. Indeed, had the judges granted the petitioners’
motions for release, the information and indictment would have
formed independent legal bases for returning the petitioners to
the State’s custody. We are therefore compelled to deny the
petitions as moot because we cannot provide the relief the
petitioners seek.
This is not the end of our inquiry, however. We have
recognized exceptions to the mootness doctrine when its
application would defeat its own purpose of preserving the
judiciary’s proper role in a democratic society. See, e.g.,
State v. Tui, 138 Hawaii 462, 468, 382 P.3d 274, 280 (2016)
(applying “capable of repetition but evading review” exception
to mootness); Hamilton ex rel. Lethem v. Lethem, 119 Hawaii 1,
7, 193 P.3d 839, 845 (2008) (adopting collateral consequences
exception to mootness); Doe v. Doe, 116 Hawaii 323, 326, 172
P.3d 1067, 1070 (2007) (applying public interest exception to
mootness). Notwithstanding our normal reluctance to rule
outside of the context of a live controversy, this court will
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resolve the merits of a claim for which it cannot grant relief
when the alleged injury is capable of repetition but by its
nature will evade appellate review.9 Tui, 138 Hawaii at 468,
382 P.3d at 280. This often occurs when a class of injury is
brief enough that “the passage of time would prevent any single
plaintiff from remaining subject to the restriction complained
of for the period necessary to complete the lawsuit.” Id.
(quoting Lethem, 119 Hawaii at 5, 193 P.3d at 843).
These petitions fall within this exception to the
mootness doctrine. The two cases demonstrate that the
continuance of a preliminary hearing beyond the two-day limit
that HRPP Rule 5(c)(3) sets for defendants in custody is an
event capable of repetition. Yet the coinciding determination
by the district or family court of whether to release a
defendant will nearly always evade appellate review under
conventional notions of mootness. As discussed, a determination
of probable cause renders the issue moot by eliminating an
appellate court’s ability to grant an effective remedy for the
alleged injury. This determination would occur when a
9
Although the “capable of repetition, yet evading review”
exception has “merged at times” with the similar public interest exception to
the mootness doctrine, “they are, in fact, ‘separate and distinct.’” Doe,
116 Hawaii at 327 n.4, 172 P.3d at 1071 n.4 (quoting Kahoohanohano, 114
Hawaii at 333 n.23, 162 P.3d at 727 n.23).
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rescheduled preliminary hearing is conducted in full, leaving
only the brief duration of the continuance to obtain legal
redress. But even when this court stands ready to expeditiously
resolve a challenge during this brief period, the State may
bypass the court’s review by filing an information or obtaining
a grand jury indictment.10 Because release decisions under HRPP
Rule 5(c)(3) would otherwise be effectively unreviewable, we
address the challenge the petitions raise in order to provide
guidance to the district and family courts--although we are not
able to grant the petitioners the release from custody they
seek.
B. HRPP Rule 5(c)(3)’s Release Mandate and Its Exceptions
Petitioners argue that HRPP Rule 5(c)(3) required the
judges in their cases to grant their motions for release from
custody. We review a trial court’s interpretation of court
rules de novo. See Enos v. Pac. Transfer & Warehouse, Inc., 80
Hawaii 345, 349, 910 P.2d 116, 120 (1996).
HRPP Rule 5(c)(3) provides in full as follows:
(3) TIME FOR PRELIMINARY HEARING; RELEASE UPON FAILURE OF TIMELY
DISPOSITION. The court shall conduct the preliminary hearing
10
Hawaii Rules of Appellate Procedure (HRAP) Rule 21(c) (2006)
requires that respondents be given an opportunity to answer prior to a court
granting a petition for a writ of mandamus. This procedure provides
notification to the State of this court’s pending review of an HRPP Rule
5(c)(3) determination and affords an opportunity to file an information or
obtain an indictment before the court may rule.
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within 30 days of initial appearance if the defendant is
not in custody; however, if the defendant is held in
custody for a period of more than 2 days after initial
appearance without commencement of a defendant’s
preliminary hearing, the court, on motion of the defendant,
shall release the defendant to appear on the defendant’s
own recognizance, unless failure of such determination or
commencement is caused by the request, action or condition
of the defendant, or occurred with the defendant’s consent,
or is attributable to such compelling fact or circumstance
which would preclude such determination or commencement
within the prescribed period, or unless such compelling
fact or circumstance would render such release to be
against the interest of justice.
HRPP Rule 5(c)(3) (emphasis added). Thus, if a preliminary
hearing has not commenced within two days of the initial
appearance of a defendant held in custody, the rule directs
courts to release the defendant upon his or her own motion.
This general requirement is subject to three exceptions,
however. Release is not mandated when the failure to conduct a
preliminary hearing within the prescribed time frame resulted
from some action or condition of the defendant, upon the
defendant’s request, or with the defendant’s consent. Release
is also not required when a “compelling fact or
circumstance . . . preclude[d]” the hearing from commencing or
probable cause from being determined. Lastly, HRPP Rule 5(c)(3)
allows a court to deny a defendant’s motion for release when a
“compelling fact or circumstance” would make the release
“against the interest of justice.”
The State does not argue that either judge relied on
HRPP Rule 5(c)(3)’s first exception when denying the petitioners
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their release.11 Rather, the State contends that the respective
courts found “compelling circumstances” that justified the
continued detention of the petitioners. The State does not
specify which compelling circumstances exception of HRPP Rule
5(c)(3) applies, and it is not apparent from the context of the
courts’ rulings. We therefore consider each of these exceptions
in turn.
1. HRPP Rule 5(c)(3)’s Second Exception
HRPP Rule 5(c)(3)’s second exception permits the
continued detention of a defendant when “compelling” facts or
circumstances “preclude” the determination of probable cause or
the commencement of a preliminary hearing within the prescribed
two-day period. The HRPP does not define “preclude” or
“compelling.” See HRPP Rule 2.3 (2012).12 “It is well
established that the interpretation of rules promulgated by the
supreme court involves principles of statutory construction.”
11
We note that HRPP Rule 5(c)(3)’s first exception specifically
provides that the release rule does not apply when the failure of the
probable cause determination or commencement of the preliminary hearing is
caused by the action of the defendant. In other words, if the defendant’s
conduct, for example, has caused a witness to not appear, release from
custody is not required, and a compelling circumstance is irrelevant. In
this case, however, the State did not contend at the hearing or in response
to the petition that Moana engaged in any actions following the offense to
cause the witness not to appear.
12
The HRPP cross-reference Hawaii Electronic Filing and Service
Rules (HEFSR) Rule 1 (2015) for definitions, but neither “preclude” nor
“compelling” is defined in HEFSR Rule 1.
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State v. Bohannon, 102 Hawaii 228, 240, 74 P.3d 980, 992 (2003).
The history and structure of HRPP Rule 5(c)(3) may therefore
guide our understanding of these terms. See Morgan v. Planning
Dept., Cty. of Kauai, 104 Hawaii 173, 185, 86 P.3d 982, 994
(2004).
a. The History of HRPP Rule 5(c)(3)
Prior to 1977, two sets of rules governed Hawaii
courts in criminal cases: the Hawaii Rules of Criminal Procedure
(HRCrP) and the District Court Rules of Penal Procedure (DCRPP).
The HRCrP were promulgated in 1960 to “govern the procedure in
the courts of the State in all criminal proceedings.” HRCrP
Rule 1 (1960). Although HRCrP Rule 5(d)(1) (1960) provided a
preliminary hearing to a defendant charged with a felony by
complaint, the HRCrP neither specified a deadline by which such
a hearing was to be conducted nor entitled the defendant to
release when the hearing was not timely held. Rather, the rules
required only that courts conduct the hearing “within a
reasonable time.” HRCrP Rule 5(d)(2) (1960). HRCrP Rule 5 did
not further specify the parameters of what constituted a
“reasonable time,” and the rule was likewise silent on the
remedy should the preliminary hearing not be held in a timely
manner.
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In November 1971, this court adopted and promulgated
the DCRPP, which “govern[ed] the procedure in the district
courts of the State in all penal proceedings.”13 DCRPP Rule 2
(1972). DCRPP Rule 25(b) (1972) functioned much the same as the
version of HRPP Rule 5(c)(3) now in effect. Under DCRPP Rule
25(b), a defendant charged with a felony in district court who
was held in custody was entitled to a preliminary hearing within
forty-eight hours. If more than forty-eight hours passed
without either a “disposition of the charge” or “commencement of
a hearing,” the district judge was required to release the
defendant unless the defendant’s release was prohibited by law
or the delay was due to the defendant’s “request, action or
condition” or “occurred with [the defendant’s] consent.” DCRPP
Rule 25(b)(1), (2). Release of the defendant was also not
required if the court “was satisfied that the State ha[d] shown
good cause why an order of release should not be issued.” Id.
(emphasis added). Additionally, the rule specified that “[s]uch
good cause must consist of some compelling fact or circumstance
which would preclude disposition of the charge within the
13
The DCRPP superseded the HRCrP in district courts, in which the
new rules applied when their application was not limited or modified by other
laws. DCRPP Rule 2 (1972). The HRCrP were left intact in all other courts.
See Ogata I, 53 Haw. at 368, 493 P.2d at 1345 (“Those rules apply only to
proceedings in the district courts and before district judges. No provision
thereunder applies to proceedings in the circuit courts . . . . [T]he
circuit courts are governed by [the] H.R.Cr.P.”).
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prescribed period or would render such release to be against the
interest of justice.” Id. (emphasis added).
Thus, under DCRPP Rule 25(b), a defendant in custody
who was charged with a felony and did not receive a timely
preliminary hearing was entitled to release unless, inter alia,
the State could demonstrate the existence of “good cause,”
defined by the rule as a “compelling fact or circumstance” that
either (1) precluded the hearing from being held within the
forty-eight-hour window, or (2) rendered the defendant’s release
against the interest of justice. Id.
In 1977, the Hawaii Rules of Penal Procedure (HRPP)
were adopted to replace the HRCrP and the DCRPP and to provide a
comprehensive, unified set of rules governing criminal procedure
in Hawaii. See Comm. for Penal Rules Revision of the Judicial
Council of Haw., Proposed Hawaii Rules of Penal Procedure at i-
ii (June 1975) (stating that the HRPP were “intended to govern
penal procedure in all of the courts” and “will supersede both
the [HRCrP] and the [DCRPP]”). In crafting the HRPP, the
drafters sought to “retain the present rules [of the HRCrP]
wherever justified.” Id. at ii. The Penal Rules Revision
Committee (the Committee) declined to retain the substance of
HRCrP Rule 5 regarding preliminary hearings, however, in favor
of a rule modeled after the more-protective DCRPP Rule 25.
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Under a proposed draft of the HRPP transmitted to the Judiciary,
courts were required to conduct a preliminary hearing for a
defendant in custody on felony charges, and, “if the defendant
[was] held in custody for a period of more than 4 days after
first appearance without either a determination of probable
cause or commencement of a hearing thereon,” the defendant was
entitled to release. Id. at 10—11. The proposed rule retained
two of DCRPP Rule 25’s exceptions, permitting courts to deny
release if the failure to timely conduct or commence a
preliminary hearing (1) was caused by “the request, action or
condition of the defendant or occurred with his consent” or (2)
was attributable to “some compelling fact or circumstance which
would preclude [the probable cause] determination or
commencement within the prescribed period.” Id. at 11.
HRPP Rule 5 as adopted and promulgated by this court
did not incorporate the Committee’s proposed departures from
DCRPP Rule 25, including the extended four-day time limit for
holding a preliminary hearing when a defendant is held in
custody. See HRPP Rule 5(c)(2) (1977). The court instead
retained the forty-eight-hour time limit and the exception
permitting the continued confinement of a defendant when
compelling circumstances rendered release against the interest
of justice. See id. The rule has remained substantially the
same in the years since.
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The history demonstrates this jurisdiction’s strong
commitment to protecting defendants held in custody by providing
a prompt preliminary hearing. The Committee first rejected the
more flexible “reasonable time” standard contained in the HRCrP
when the DCRPP were promulgated, instead establishing a firm
deadline subject to few exceptions. Thus, an approach based on
“reasonableness” that would have weighed the State’s
administrative or prosecutorial needs against the hardship of
the defendant was rejected, and instead the Committee
recommended a proposed rule under which the rights of the
defendant were highly protected. This intention was reaffirmed
when the Committee modeled Rule 5 in the proposed draft of the
HRPP after the more protective DCRPP rule, notwithstanding its
otherwise stated intention to “retain [the HRCrP] wherever
justified.” Proposed Hawaii Rules of Penal Procedure at ii.
The commitment was again confirmed when this court adopted and
promulgated the HRPP, strengthening Rule 5’s protections for in-
custody defendants beyond those contained in the proposed draft
of the Rule by reducing the prescribed time frame for
commencement of the preliminary hearing from four days to forty-
eight hours.
The implication from the history of HRPP Rule 5 is
clear: there is a strong presumption that a defendant should be
released upon motion if a preliminary hearing has not commenced
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within two days, and holding a defendant for a longer period
without a preliminary hearing is permissible only in very
limited situations. Indeed, implicit in this court’s adoption
of a two-day time limit over the proposed four-day limit was a
statement that a delay of even two additional days was
presumptively not permissible. This presumption is also evident
in the framework of the rule itself.
b. The Structure of HRPP Rule 5(c)(3)
Our strong commitment to protecting defendants from
prolonged confinement without a preliminary hearing is reflected
in HRPP Rule 5(c)(3)’s structure. Unlike the Federal Rules of
Criminal Procedure and the rules of many other jurisdictions,
the two-day time limit contained in HRPP Rule 5(c)(3) is not
framed as a but-for requirement in order to proceed with the
preliminary hearing. Compare HRPP Rule 5(c)(3) with Fed. R.
Crim. P. 5.1(c) (2009) (“The magistrate judge must hold the
preliminary hearing . . .”); Del. Super. Ct. Crim. R. 5(d)
(2016) (“Such examination shall be held . . .”); and Alaska R.
Crim. P. 5(e)(4) (2017) (same). That is, HRPP Rule 5(c)(3)
provides only for the release of the defendant upon the
defendant’s motion if a hearing is not conducted within the
prescribed time period; it does not provide for the dismissal of
charges without prejudice, as many courts have held to be the
case under the “mandatory” language of other jurisdictions. See
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State v. Hutcheson, 352 S.E.2d 143, 148 (W. Va. 1986) (citing
United States v. Rogers, 455 F.2d 407, 412 (5th Cir. 1972);
United States v. Milano, 443 F.2d 1022, 1024, 1025 (10th Cir.
1971); United States v. Assenza, 337 F. Supp. 1057, 1061 (M.D.
Fla. 1972)). Instead, the charges against the released
defendant remain pending when the defendant is released, and the
thirty-day time limit for out-of-custody defendants, which is
couched in mandatory terms, becomes applicable. In other words,
HRPP Rule 5(c)(3) allows the State up to thirty days from a
defendant’s initial appearance to remedy any complication that
made conducting a preliminary hearing within the two-day time
limit inconvenient or otherwise problematic. However, the rule
requires that the defendant be released from custody upon motion
until such a hearing takes place unless the State demonstrates
that one of the rule’s narrow exceptions is applicable.
c. The Language and Operation of HRPP Rule 5(c)(3)
With these principles in mind, we turn now to the
language of HRPP Rule 5(c)(3)’s second exception. The rule does
not require the release of a defendant from custody upon motion
if the nonoccurrence of a preliminary hearing “is attributable
to such compelling fact or circumstance which would preclude
such determination or commencement within the prescribed
period.” HRPP Rule 5(c)(3). This phrasing suggests two
separate requirements: a “compelling fact or circumstance” must
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exist, and that fact or circumstance must “preclude such
determination [of probable cause] or the commencement [of a
preliminary hearing]” within two days of the defendant’s initial
appearance.
We interpret the meaning of “compelling” in light of
our historical commitment to providing a defendant held in
custody with a preliminary hearing within two days of initial
appearance such that release is strongly presumed to be
appropriate if a preliminary hearing does not commence within
this period. Both our history and the structure of HRPP Rule
5(c)(3) indicate that only in narrow circumstances will the
presumption be displaced, allowing the defendant to be held
longer than two days without commencement of the preliminary
hearing. Thus, a compelling fact or circumstance is an
occurrence or situation that is of such gravity as to overcome
the strong presumption that the release rule applies.
The absence of a witness from a hearing does not in
itself present a circumstance of sufficient gravity to displace
the strong presumption that the release rule applies. Indeed,
were the voluntary nonattendance of a witness considered
compelling for purposes of HRPP Rule 5(c)(3), a witness could
extend a defendant’s captivity at will simply by electing not to
attend the preliminary hearing. Such a result would be plainly
contrary to the strong presumption of release embodied in the
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rule. Rather, when the State has used due diligence to obtain
the witness’s presence, the court must consider the reasons for
the witness’s absence, if known.14 Because the release rule is
designed to have broad application, a situation must present
serious considerations in order to be compelling. Further, a
circumstance caused by the State’s failure to exercise due
diligence will rarely overcome the strong presumption that the
release rule applies because the rule exists to protect
defendants against unnecessary delays.
This interpretation is consistent with our application
of the compelling circumstance phrase in other contexts. In
Gannett Pacific Corp. v. Richardson, for example, we considered
when preliminary hearings--like the ones here at issue--could be
closed to the public. 59 Haw. 224, 233, 580 P.2d 49, 56—57
(1978). We determined that a departure from “this
jurisdiction’s policy of openness in judicial proceedings” was
justified only when the court concludes that the public’s
exposure to potentially inadmissible evidence was substantially
likely to interfere with the defendant’s right to a fair trial
by an impartial jury. Id. We would later describe this
decision as holding “that except under certain rare and
14
When the reasons for a witness’s absence cannot be ascertained,
evidence of whether the witness intended to cooperate may be relevant to the
court’s analysis.
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compelling circumstances, courtroom proceedings shall be open to
the public.” Oahu Publ’ns Inc. v. Ahn, 133 Hawaii 482, 495, 331
P.3d 460, 473 (2014) (other emphasis omitted) (quoting Honolulu
Advertiser, Inc. v. Takao, 59 Haw. 237, 238, 580 P.2d 58, 60
(1978)). Just as in the present cases, we identified a strong
policy commitment “firmly embedded in our system of
jurisprudence.” Gannett, 59 Haw. at 228, 580 P.2d at 54. As
here, we permitted this commitment to be overcome only by a
showing of circumstances that raised a countervailing concern of
great enough weight to overcome the strong presumption that the
standard rule applies. See also Amemiya v. Sapienza, 63 Haw.
424, 428, 629 P.2d 1126, 1129 (1981) (holding that,
notwithstanding legislative delegation of prosecutorial
discretion to city and county public prosecutor, state attorney
general may “supersede” public prosecutor “in certain compelling
circumstances,” including “dereliction of duty” and when
conflict of interest exists).
Even when a compelling fact or circumstance is found
to be present, however, it must actually result in preclusion of
“determination [of probable cause] or commencement [of a
preliminary hearing] within the prescribed period” for HRPP Rule
5(c)(3)’s second exception to apply. “Preclude” is generally
defined as “to prevent or make impossible; to rule out
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beforehand by necessary consequence.” Preclude, Black’s Law
Dictionary (10th ed. 2014). Preclusion will therefore occur
either when a circumstance prevents the determination of
probable cause at a preliminary hearing or when a circumstance
prevents the commencement of the hearing within the two-day time
frame. The former situation will arise, for example, when there
is an unavailability of evidence that is crucial to the probable
cause determination. The latter situation occurs, for example,
when court personnel required to conduct a hearing, such as
defense counsel, are unable to be present.15
An implicit corollary to the rule’s provisions is that
any continuance granted under HRPP Rule 5(c)(3)’s second
exception must be no longer than needed to resolve the
compelling fact or circumstance that precluded the determination
of probable cause or the commencement of a hearing within the
two-day time limit. The court must be informed how the State
intends to expeditiously address the circumstance precluding the
determination of probable cause or commencement of the hearing,
and any continuance must be circumscribed to the period
15
HRPP Rule 5(c)(3) additionally requires that there be a causal
link between the compelling fact or circumstance and the nonoccurrence of the
hearing. The “failure of such determination or commencement” must be
“attributable to such compelling fact or circumstance.” HRPP Rule 5(c)(3)
(emphasis added). Even when a hearing is precluded and a compelling fact or
circumstance is present, HRPP Rule 5(c)(3)’s second exception will not apply
when the preclusion resulted from a separate, noncompelling event.
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necessary to resolve that circumstance. The rule’s language,
structure, and history demonstrate a policy determination that
an in-custody defendant should be afforded a preliminary hearing
within the prescribed time frame of the rule. Any deviation
from this time frame should be measured relative to the two-day
limit--not the thirty-day limit applicable to out-of-custody
defendants. Thus, the length of a requested continuance must be
consistent with the rule’s objective of a prompt probable cause
determination.
In summary, two days is the presumptive limit of
acceptable delay, and holding a defendant without a preliminary
hearing for a longer period is authorized under HRPP Rule
5(c)(3)’s second exception only when compelling circumstances
prevent a timely determination of probable cause or commencement
of the hearing.16 The period of any requested continuance must
be consistent with the prompt-determination purpose of the rule
and correlated in duration to the specific circumstance that
caused the preliminary hearing to not commence within the two-
day time frame.17
16
We note that this corollary also applies to HRPP Rule 5(c)(3)’s
other exceptions to the standard release rule. Under the rule’s first
exception, for example, a hearing continued because of a defendant’s
condition should occur as soon as the condition is alleviated.
17
Both petitioners acknowledge a dearth of caselaw regarding when a
preliminary hearing “commences” for purposes of HRPP Rule 5(c)(3). They
(continued . . .)
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d. Application to Moana and Curioso’s Cases
The cases at hand provide illustrative examples of the
operation of HRPP Rule 5(c)(3)’s second exception. In Moana’s
case, the State argues that the complainant’s nonappearance
despite being properly served was a compelling fact or
circumstance.18 Turning initially to the preclusion requirement
of the second exception, the complaining witness’s absence at
the preliminary hearing likely precluded a determination of
probable cause, insofar as the witness’s testimony would provide
crucial evidence on this issue. However, the State’s plan for
(. . . continued)
argue that the structure of the rule, which permits a delay in commencement
without the release of the defendant if the delay occurs by the defendant’s
request or with the defendant’s consent, necessarily contemplates an
opportunity for the defendant to move for continuance or consent to the
State’s motion prior to commencement of the hearing. Commencement must
therefore occur later, when witnesses are sworn or evidence is presented,
they conclude. The State does not dispute this point.
We note that HRPP Rule 5(c)(3)’s text indicates that the two-day
time limit for in-custody defendants is satisfied if a preliminary hearing
commences within the time frame, and that conclusion of the hearing within
the two-day period is not required. In other words, a hearing commenced
within the two-day period may extend beyond that time frame without
necessitating the release of the defendant upon motion. However, any
continuance granted after the commencement of the hearing must satisfy one of
HRPP Rule 5(c)(3)’s exceptions or be based on the court’s inability to
complete the hearing on the scheduled day due to time restraints. Any
continuance would presumably be to the next court day.
18
The State also proffers Moana’s criminal history, the nature of
the offense with which Moana was charged, and the vulnerable nature of the
complainant as compelling circumstances on which the court relied. Because
these circumstances do not prevent the determination of probable cause or the
commencement of preliminary hearing within the two-day time frame, they
clearly do not qualify under HRPP Rule 5(c)(3)’s second exception. We
consider them further with respect to HRPP Rule 5(c)(3)’s third exception,
discussed infra.
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securing the attendance of the complaining witness was of an
indefinite nature and duration. To hold a defendant during a
continuance pursuant to HRPP Rule 5(c)(3)’s second exception,
the State must set forth the specific steps that it intends to
take to expeditiously resolve the compelling circumstance, and
the requested continuance must be limited to that time period.
Here, the State made only vague statements indicating that it
would attempt to locate and serve the witness again, possibly
attempting to obtain a material witness order if necessary.
Indeed, the State acknowledged that the complainant may no
longer have been in Hawaii and offered no information suggesting
it had any knowledge of the witness’s current location. The
strong presumption of release does not permit the State to hold
a defendant for a period of time that does not preserve the
defendant’s right to a prompt probable cause determination.
Because the continuance was clearly not limited to the
time necessary to expeditiously resolve the circumstance
precluding the hearing, we do not address whether the
complaining witness’s absence constituted a compelling
circumstance in light of the witness’s possible departure from
the jurisdiction and previously expressed reluctance to testify.
However, we note that when a compelling circumstance is not
present or it cannot be ascertained whether a witness’s
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attendance can be promptly obtained, the court following the
release of the defendant from custody may continue the
preliminary hearing to any point within the thirty-day time
limit for an out-of-custody defendant.
In Curioso’s case, the complainant was present and
ready to testify at the scheduled preliminary hearing but was
impeded from doing so by the lack of an interpreter. The State
avers that it could not have discovered the need for an
interpreter earlier through ordinary diligence and that it made
diligent efforts to obtain an interpreter as soon as the
complainant requested one.19 As we have said, “inherent in [the]
nature of justice is the notion that those involved in
litigation should understand and be understood.” In re Doe, 99
Hawaii 522, 533, 57 P.3d 447, 458 (2002) (quoting Figueroa v.
Doherty, 303 Ill. App. 3d 46, 50, 707 N.E.2d 654, 658 (1999)).
19
Although we assume in this case that the State exercised due
diligence in attempting to secure an interpreter, we note that there is no
indication in the record that the State contacted the court for assistance.
The court is equipped with many resources in this area, including the ability
to appoint an interpreter of its own selection at a hearing or trial. See
HRPP Rule 28(b) (2012). Further, the Hawaii State Judiciary has committed to
“reasonably provid[ing], free of charge, and in a timely manner, competent
court interpreters for parties, witnesses and individuals with a substantial
interest in a case.” Judiciary’s Language Access Policy, Hawaii Judiciary
Policy #12 (2014); see also Hawaii State Judiciary, Language Access Plan for
Persons with Limited English Proficiency, FY 2015-2016, at 9 (“Non-Judiciary
staff, including a public defender, prosecuting attorney, private attorney,
or community advocate, may also inform the court of a client’s need for an
interpreter in a particular case.”)
http://www.courts.state.hi.us/docs/services/LEP.pdf.
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Given the fundamental importance of an interpreter in courtroom
proceedings, the inability to obtain one presented a
circumstance of such gravity as to overcome the strong
presumption that inheres in the release rule.
The facts of the situation were thus compelling under
the first prong of HRPP Rule 5(c)(3)’s second exception. The
interpreter was also essential court personnel necessary to
commence the preliminary hearing. With both requirements of
HRPP Rule 5(c)(3)’s second exception met, the district court
would have been justified in relying upon it to deny Curioso’s
motion for release.
However, the facts concerning the complaining
witness’s late request for an interpreter, lack of prior
indication that an interpreter was needed, and the State’s
efforts to locate an interpreter were not shown to be part of
the record of the hearing in this case.20 The district court
also continued the hearing without any inquiry into when an
interpreter could be obtained, and instead of continuing the
hearing to the next day, which was a Friday, the hearing was
rescheduled for the following Tuesday--after the weekend. As
discussed, when a defendant is kept in custody beyond the two-
20
The information was contained in an affidavit submitted with the
State’s response to Moana’s petition for a writ of mandamus.
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day time limit pursuant to HRPP Rule 5(c)(3)’s second exception,
any postponement of the preliminary hearing is to be limited to
the time necessary to address the circumstance precluding the
hearing--here, the minimum time needed to secure an interpreter.
2. HRPP Rule 5(c)(3)’s Third Exception
Because the State does not specify which of HRPP Rule
5(c)(3)’s exceptions the family court relied upon to deny
Moana’s motion for release and keep him in custody until a
continued hearing date two weeks hence, we also address the
proffered facts in relation to the rule’s third exception, which
allows a court to deny a motion for release if a “compelling
fact or circumstance would render such release to be against the
interest of justice.”
Like HRPP Rule 5(c)(3)’s second exception, the rule’s
third exception requires that a court find that a “compelling
fact or circumstance” exists in order to keep a defendant in
custody. As we have concluded above, a fact or circumstance is
compelling when it is of such gravity as to overcome the strong
presumption that the standard release rule should apply to the
situation.
The record does not indicate that any such compelling
facts or circumstances were implicated in Moana’s case. In
addition to the nonappearance of the complainant, discussed
above, the State argues that the family court relied upon three
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compelling circumstances when it required Moana to remain in
custody while the complainant’s whereabouts were being
determined: the nature of Moana’s alleged offense, the
vulnerable nature of the complainant and their child, and
Moana’s criminal history, which the State argues collectively
indicated a potential danger to the absent complainant.
However, simply referencing the nature of an alleged offense
does not present a fact that justifies departing from the
standard rule because HRPP Rule 5(c)(3) was formulated and
adopted to apply to all criminal offenses. The rule does not
provide for different periods of custody based on the type of
offense. That is, the third exception applies to compelling
circumstances and not offenses categorized as compelling.
Additionally, the record does not demonstrate any
specific factual allegation that Moana posed a risk to the
absent complainant that was of a sufficient gravity to overcome
the strong presumption that the standard release rule should
apply to the situation. Indeed, the State’s argument that Moana
posed a potential risk to the complainant was undermined by the
basis of its request for the continuance and the family court’s
apparent reasoning for granting it. The complainant’s
whereabouts were unknown to the State, and the requested
additional time by the prosecutor was to locate and obtain the
complainant’s cooperation. The prosecutor further explained
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that his office might obtain a material witness order if the
complainant was found on the mainland and refused to return
voluntarily. The court itself referred to the insubstantiality
of the prosecutor’s request in its ruling, warning the
prosecutor that “the next time . . . if the complaining witness
fails to appear . . . [the State] need[s] a lot more information
than what somebody might have said.”21 The lack of a showing of
compelling circumstances for the continuance request is clearly
evident.
Even had the asserted facts constituted compelling
circumstances, the State did not present the court with proposed
measures to expeditiously address the concerns raised. The
strong presumption of release requires that a defendant in
custody be afforded a hearing as promptly as feasible, and a
continuance should in no event be longer than necessary to
resolve the compelling circumstance that justified holding a
defendant beyond the two-day time limit. Just as under HRPP
Rule 5(c)(3)’s second exception, the rule’s third exception does
not authorize holding a defendant without a probable cause
determination for a period beyond what is required by the
21
The family court’s comments regarding “what somebody might have
said” referred to the prosecutor’s statement to the court in his continuance
request that he had been contacted by the complainant’s aunt, who informed
him that she had taken food to the airport to give to the complainant and her
child.
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compelling circumstance, and any continuance granted must comply
with the prompt hearing mandate embodied in the rule.
It is also noted that HRPP Rule 5(c)(3)’s third
exception contains a second prong that requires a court to
determine that the defendant’s release would be “against the
interests of justice.” Because the record does not support a
finding that compelling circumstances existed to overcome the
strong presumption that release was required, we do not address
the possible situations in which the interests of justice
provision may apply.
IV. CONCLUSION
Because the petitions are moot, we cannot provide the
relief the petitioners seek and therefore deny their petitions.
We nonetheless consider the legal questions they present, which
are capable of repetition but would otherwise evade review, in
order to provide guidance to the district and family courts. We
hold that HRPP Rule 5(c)(3) provides a strong presumption that
the release upon motion of a defendant held in custody is
required when a preliminary hearing has not commenced within two
days of initial appearance. When a delay is not caused by a
defendant and occurs without the defendant’s consent, courts may
deny a defendant’s motion for release only in a circumstance
that is of such gravity as to overcome the strong presumption of
release. If such a compelling circumstance is found, the
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continuance of the preliminary hearing must be consistent with
the prompt-determination objective of the rule and must be no
longer than needed to resolve the circumstance making the delay
necessary.
Jon N. Ikenaga /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama
Rafael K. Renteria
for respondent in /s/ Sabrina S. McKenna
SCPW-17-0000532
/s/ Richard W. Pollack
Leigh M. Okimoto
for respondent in /s/ Michael D. Wilson
SCPW-17-0000171
39