SI UFAGA MOANA, Petitioner, vs. THE HONORABLE FRANCES Q. F. WONG, Judge of the Family Court of the First Circuit, State of Hawaiʻi, Respondent Judge, and STATE OF HAWAIʻI, 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 Hawaiʻi, Respondent Judge, and STATE OF HAWAIʻI, Respondent.
SCPW-17-0000532 (Consolidated with SCPW-17-0000171; CASE NO. 1DCW-17-0000868)
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
NOVEMBER 21, 2017
ORIGINAL PROCEEDINGS
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
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
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.
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.
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
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,
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
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 nоted that the “hearing [had been] set very expeditiously within the 30-day limit,” which left the court free to continue it without legal obstacle.
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,
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
the State may maintain custody of a defendant when the delay is caused by the defendant or occurs with the defendant’s consent.
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
In his petition, Curioso similarly argues that a preliminary hearing did not commence within two days of his initial appearance and that none of
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 appeаrance 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 wаs 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
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 ʻfounded in concern about the proper--and properly limited--role of the courts in a democratic society.ʼ” 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 Hawaiʻi 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 Hawaiʻi at 405, 235 P.3d at 1117 (citing
Kahoʻohanohano v. State, 114 Hawaiʻi 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.
P.2d at 360.7 The same would logically hold true for an information, by which probable cause may also be established. See
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,
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 Hawaiʻi 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 Hawaiʻi 1, 7, 193 P.3d 839, 845 (2008) (adopting collateral consequences exception to mootness); Doe v. Doe, 116 Hawaiʻi 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
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 Hawaiʻi 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 Hawaiʻi at 5, 193 P.3d at 843).
These petitions fall within this exception to the mootness doctrine. The two cases demonstrаte that the continuance of a preliminary hearing beyond the two-day limit that
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
B. HRPP Rule 5(c)(3) ’s Release Mandate and Its Exceptions
Petitioners argue that
(3) TIME FOR PRELIMINARY HEARING; RELEASE UPON FAILURE OF TIMELY DISPOSITION. The court shall conduct the preliminary hearing
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 intеrest of justice.
The State does not argue that either judge relied on
their release.11 Rather, the State contends that the
1. HRPP Rule 5(c)(3) ’s Second Exception
State v. Bohannon, 102 Hawaiʻi 228, 240, 74 P.3d 980, 992 (2003). The history and structure of
a. The History of HRPP Rule 5(c)(3)
Prior to 1977, two sets of rules governed Hawaiʻi courts in criminal cases: the Hawaiʻi 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.
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
prescribed period or would render such release to be against the interest of justice.” Id. (emphasis added).
Thus, under
In 1977, the
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
The implication from the history of
b. The Structure of HRPP Rule 5(c)(3)
Our strong commitment to protecting defendants from prolonged confinement without
c. The Language and Operation of HRPP Rule 5(c)(3)
With these principles in mind, we turn now to the language of
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
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
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 conсludes 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 compelling circumstances, courtroom proceedings shall be open to the public.” Oahu Publ‘ns Inc. v. Ahn, 133 Hawaiʻi 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 сonflict 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
An implicit corollary to the rule‘s provisions is that any continuance granted under
In summary, two days is the presumptive limit of acceptable delay, and holding a defendant without a preliminary hearing
d. Application to Moana and Curioso‘s Cases
The cases at hand provide illustrative examples of the operation of
(. . . 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
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 attendance can be promptly obtained, the court following the release of the defendant from custody may continue the preliminary hearing
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 Hawaiʻi 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)).
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
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- day time limit pursuant to
2. HRPP Rule 5(c)(3)‘s Third Exception
Because the State does not specify which of
Like
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 compelling circumstances when it required Moana to
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 сomplainant 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 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 rеlease 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
It is also noted that
IV. CONCLUSION
Because the petitions arе 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
Jon N. Ikenaga
for petitioners
Rafael K. Renteria
for respondent in
SCPW-17-0000532
Leigh M. Okimoto
for respondent in
SCPW-17-0000171
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson