State v. Correa. , 124 Haw. 179 ( 2010 )

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FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
IN THE INTERMEDIATE coURT 0F APPEALs
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sTATE oF HAwAFI, P1aintiff-Appe11ant,
vs. l f
KYLE F.K. CORREA, Defendant-Appellee “J
NO. 298l7
APPEAL FRoM THE FAMILY CoURT oF THE FIRsT cIRcUIT
(FC-cR NO. 03-1-1900)
AUGUST 27, 2010
NAKAMURA, CHIEF JUDGE, FUJISE, and GINOZA, JJ.
OPINION OF THE COURT BY NAKAMURA, C.J.
Defendant-Appellee Kyle F.K. Correa (Correa) was
charged by complaint with abuse of a family or household member,
in violation of Hawaii Revised Statutes (HRS) § 709-906 (Supp.
The alleged victim and the complainant (Complainant)
2009).H
was Correa's wife.
At a calender call held on the day scheduled for trial,
the Family Court of the First Circuit (family court)W denied
Correa's motion for a trial continuance. The Deputy Prosecuting
advised the family court that Plaintiff-Appellant
Attorney (DPA)
V HRS § 709-906 provides in relevant part:
. . to physically
(1) lt shall be unlawful for any person
abuse a family or household member
For the purposes of this section, "family or household
member" means spouses or reciprocal beneficiaries, former spouses
or reciprocal beneficiaries, persons who have a child in common,
parents, children, persons related by consanguinity, and persons
jointly residing or formerly residing in the same dwelling unit.
" The Honorable Patrick W. Border presided over the proceedings
relevant to this appeal.
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State of HawaiU.(State) was ready to proceed with trial. At a
bench conference, the family court asked the DPA if he had
personally spoken with the Complainant. The DPA acknowledged
that he had not.. After the bench conference, the DPA again
represented that the State was ready to proceed with trial, and
he advised the family court that he had "right now" talked to the
Complainant. The family court ruled that because the DPA in
preparation for trial had not spoken "in detail" with the
Complainant, "the State cannot be heard to say that it's ready
for trial." Based on this ruling, the family court dismissed the
abuse charge against Correa with prejudice.i
iThe State appeals from the family court's "Order of
Dismissal with Prejudice (Dismissal Order), which was filed on
April 13, 2009. We hold that the family court abused its
discretion in dismissing the abuse charge against Correa.
Accordingly, we vacate the family court's Dismissal Order and
remand the case for further proceedings.
BACKGROUND FACTS
On August 28, 2008, Correa was charged with abusing
the Complainant, who was a family or household member. On
October 1, 2008, the State filed a "Notice of Intent to Use
Evidence" (Notice of Intent), which notified Correa of the
State's intent to use evidence of a prior incident in which he
allegedly abused the Complainant as well as two incidents of
alleged burglary committed by Correa involving other complaining
witnesses. With respect to the prior incident of alleged abuse,
the State attached a police report that contained a written
statement, signed by the Complainant, which stated that Correa
had slammed the Complainant's head against the passenger window
of a truck, pulled her hair, hit her head against the truck's
middle console, choked her, and dragged her out of the truck.
The State asserted that it intended to use the evidence proffered
in its Notice of Intent "to explain the possible recantation" of
the Complainant at trial or "to rebut [Correa's] first aggressor
self-defense . . . ."
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On December 4, 2008, Correa filed a notice that the
Office of Public Defender was withdrawing as his counsel and that
new counsel was being substituted and was appearing for Correa,
Trial was continued to January 20, 2009, and then to February 17,
2009. At a calendar call held on February 17, 2009, Correa
orally moved for a continuance to enable the defense to determine
the outcome of another matter for which Correa had been placed in
custody. The family court continued the trial to April 13, 2009,
but advised the parties that this would be the "[l]ast
continuance for everyone" absent something "extraordinary."
On April 3, 2009, Correa filed a motion to continue the
trial. In support of the motion, Correa's counsel asserted that:
1) on February 6, 2009, Correa was arrested for, and was
subsequently charged with, first degree methamphetamine
trafficking; 2) Correa had been accepted into a residential
substance abuse program scheduled to begin on April l4, 2009; and
3) Correa was asking for a continuance of at least ninety days to
permit him to enter and complete the substance abuse program.
On April 13, 2009, the scheduled date for trial, a
hearing on a calendar call and on Correa's motion for a
continuance was held. At the outset of the hearing, the family
court asked both parties if they were ready for trial, and then
it proceeded to consider and deny Correa's motion for a
continuance of trial:
THE COURT: Okay. State's ready?
[DPA]: Uh, Your Honor, for this case State is ready
to proceed.
THE COURT: DefenSe?
[DEFENSE COUNSEL]: Your Honor, defense is asking for
a continuance. Uh, we did file a motion to continue. Mr.
Correa is set to enter into a treatment program tomorrow.
That is a residential program that he cannot leave for a
period of -- '
THE COURT: Okay. Would you join me up here.
(Bench conference begun.)
l THE COURT: When, uh -- when did he get admitted to
that program?
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[DEFENSE COUNSEL]: MarCh 30th.
THE COURT: Because I designated it as a final
continuance in February.
[DEFENSE COUNSEL]: I remember you saying that.
THE COURT: Yeah.
[DEFENSE COUNSEL]: But, uh, I think (inaudible), Your
Honor. He has two things going on. One, he has the drug
treatment. Two, he has a Circuit Court methamphetamine
trafficking case that's set for the end of the month.
THE COURT: Okay. We're not -- I’ve -- I’ve said --
because we're trying to go with the rule of reason that we
give some leeway. But this case has gone on -- let me see
this one. Um, it's -- the first calendar call was last
October which means that just from calendar calls that
period is six months old. So the motion to continue is
denied.
After denying Correa's motion to continue the trial,
the family court advised defense counsel that Correa would be
required to appear at the "calendar call tomorrow at . . . 8:30."
The family court then questioned the DPA about whether he had
personally spoken to the Complainant. dThe family court
repeatedly expressed the view that the DPA could not be ready for
trial unless the DPA had personally spoken to the Complainant.
The following colloquy ensued:
THE COURT: . . . . Now my question for the State is
this. Have you personally spoken with the complainant?
[DPA]: No, Your Honor. Uh, I can ask my -- one of my
THE COURT: No. No. If you're talking about victim-
witness advocates, they're not paralegals. They're not
licensed to practice law. They've had no legal training.
And you, as the attorney, are a steward of the justice
process and an officer of the court. If you're telling me
that you haven't spoken with the witness personally, then
you're not ready.
[DPA]: If that's the case then, Your Honor, we'll
stipulate to the continuance.
THE COURT: I said it was a final continuance.
THE COURT: Let me just -- let me just explain
something. Have you talked with the complainant?
[DEFENSE COUNSEL]: Have I?
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TI:IE COURT: YeS [. ]
[DEFENSE COUNSEL]: This morning, yes.
THE COURT: Have you talked to the complainant before
that?
[DEFENSE COUNSEL]: Uh, I believe so. At the last
trial call I spoke with her.
THE COURT: Okay. So, in other words, these
complainants are approachable. You cannot sit here and with
one voice say I haven't talked to the key witness in my case
and then turn around and say I'm ready for trial. That's a
non -- that's a non seguitur. It is part and parcel. You
are telling me to summon a jury of 40 people to be here and
try this case. You cannot tell me that you're ready for
trial if -- if since October you've had this case and you
still haven't talked to the complainant. You're not ready.
[DPA]: Your Honor, based on the information I have --
THE COURT: Mr. -- you're calling a witness to trial
that's the centerpiece of your case. You cannot sit there
and tell me that -- that you haven't talked to the witness
but you're ready for trial. You will not be heard to say
that. I will not risk 40 jurors on an unprepared case. And ,
you've had six months to do it.
This case first came here in October. He hasn't once
talked to the complainant. I know the complainant is
approachable because the defense lawyer talked to him --
talked to her. That's it.
Let me just be crystal clear with you, Do not come
into this court and tell me that you're ready for trial when
you haven't talked to the complainant. That somebody else
talked to the complainant and is feeding you information is
inadeguate. You can't do that. You're the lawyer. You're
the officer of the court. And you're the one -- you are
instructing me to summon 40 jurors into this court, and you
cannot be heard to say that when you haven't even talked to
the complainant in six months.
[DPA]: Well, Your Honor, with all due candor to the
court, I haven't had to file for (inaudible) in six months.
THE COURT: I don't think it makes any difference.
[DPA] : But - -
THE COURT: It doesn't make any difference. If you
haven't talked to that witness after all the preparation
time that you've had, then that's it, you're not ready.
(Bench conference concluded.)
(Emphases added.)
After the bench conference concluded, the family court
entertained motions from the parties. The DPA again advised the
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family court that he was ready to proceed with trial. The DPA
also advised the family court that he had just spoken with the
Complainant. The family court ruled that this was insufficient
and granted Correa's motion to dismiss the case "with prejudice"
on the ground that the State was not ready for trial:
THE COURT: I'll hear whatever motions you have.
[DPA]: And, Your Honor, again I mean State's willing
to stipulate to a continuance. But if the court's not
willing to grant any continuance, then State's ready to
proceed with trial.
THE COURT: Okay. You haven't spoken with the
complainant?
[DPA]: I just briefly --
THE COURT: IS that -~
[DPA]: -- talked with her right now.
THE COURT: Is that -- is that a correct statement?
You haven't spoken with the complainant?
[DPA]: I just spoke with her right now.
THE COURT: You have not spoken with the complainant?
[DPA]: Prior to today, nol But 1 just spoke with her
right now.
THE COURT: Yeah, just in the moment since I -- since
I released you from the bench you've now spoken with her; is
that right?
[DPA]: Yes, Your Honor.
THE COURT: Okay. State -- and defense?
[DEFENSE COUNSEL]: Your Honor, I believe the State is
not ready. They had just spoken briefly with the
complaining witness. I move to dismiss the case.
THE COURT: Well, I do this with extreme reluctance,
but this case first came on for calendar call on October
13th and the, uh -- it is insufficient. The State cannot be
heard to say that it's ready for trial if it hasn't spoken
in detail and in preparation with its complainant. The
motion is qranted. The dismissal is with prejudice.
[DPA]: And, Your Honor, State would ask the court to
reconsider and ask for a dismissal without prejudice.
THE COURT: I'm not going to do that.
[DEFENSE COUNSEL]: Thank you,
(Emphasis added . )
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DISCUSSION
The State argues that the family court abused its
discretion in dismissing the abuse charge against Correa with
prejudice. The family court dismissed the charge with prejudice
solely on the ground that the DPA had not personally spoken "in
detail" to the Complainant before the calendar call on the date
scheduled for trial.
We review a trial court's decision to dismiss a
criminal charge for abuse of discretion. State v. Mendonca, 68
Haw. 280, 283, 711 P.2d 73l, 734 (1985). We conclude that under
the circumstances of this case, the family court abused its
discretion in dismissing the charge against Correa.
Citing State v. Moriwake, 65 Haw. 47, 647 P.2d 705(1982), Correa argues that the family court "properly exercised
its 'inherent power' to dismiss this case where the State was not
prepared to proceed to trial." We conclude that the HawaiU_
Supreme Court's subsequent decision in State v. Alvey, 67 Haw.
49, 678 P.2d 5 (1984), and not Moriwake, is the applicable
precedent for this case. Under Alvey, the family court abused
its discretion in dismissing the charge against Correa.
I.
In Moriwake, the trial court dismissed with prejudice a
manslaughter charge against Moriwake after Moriwake had undergone
two trials which both ended in mistrials due to deadlocked
juries. Moriwake, 65 Haw. at 43-50, 647 P.2d 708-09. The
HawaiE.Supreme Court concluded that a trial court has the
inherent power to dismiss "an indictment with prejudice following
the declaration of one or more mistrials because of genuinely
deadlocked juries," even though a retrial would not violate the
defendant's constitutional rights. lQ4 at 55, 647 P.2d at 712.
The court stated that it was "cognizant of the deference to be
accorded the prosecuting attorney with regard to criminal
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proceedings, but [that] such deference is not without bounds."
Id. at 56, 647 P.2d 7l2. 1The court noted:
Society has a strong interest in punishing criminal conduct.
But society also has an interest in protecting the integrity
of the judicial process and in ensuring fairness to
defendants in judicial proceedings. Where those fundamental
interests are threatened, the 'discretion' of the prosecutor
must be subject to the power and responsibility of the
court. _ 1
;d; (quoting State v. Braunsdorf, 297 N.W.2d 808, 817 (Wis. l980)
(Day, J., dissenting)).
The court described the trial court's exercise of its
inherent power to dismiss a charge as "a matter of balancing the
interest of the state against fundamental fairness to a defendant
with the added ingredient of the orderly functioning of the court
system." ;d; (citation and internal quotation marks omitted).
The court concluded that, in view of the two deadlocked juries
after two full, nearly identical trials and the absence of any
indication that a third trial would proceed differently, the
trial court had not abused its discretion in employing its
inherent power to dismiss the charge against Moriwake, ;QL at
57, 647 P.2d at 7l3.
.II.
in Alvey, 67 Haw. at 58, 678 P.2d at 11, the supreme
court reached the opposite conclusion and held that the trial
court had abused its discretion in using its inherent power to
dismiss the charge. Alvey was criminally charged with promoting
prison contraband. ;Q; at 52, 678 P.2d at 7. A prison
disciplinary committee had previously determined that there was
insufficient evidence to support an administrative prison
infraction that was based on the same incident as the criminal
charge. ;Q4 at 51-52, 678 P.2d at 6-7. The trial court
dismissed the criminal charge with prejudice on the grounds that:
1) dismissal of the administrative prison infraction collaterally
estopped the criminal charge; and 2) dismissal of the criminal
charge was within its inherent power. ldL at 52-53, 678 P.2d at
8. With respect to the use of its inherent power, the trial
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court reasoned that it "should not meddle in prison affairs by
retrying an inmate who had already been absolved by prison
officials under a lesser burden of proof" and that "judicial
economy supported giving the prison hearing res judicata effect."
;g_._ at 53, 673 P.2d at 3.
After concluding that the trial court erred in
dismissing the charge on collateral estoppel grounds, the supreme
court turned to address whether the trial court had properly
exercised its inherent power. The supreme court held that the
trial court had abused its discretion in dismissing the charge
based on its inherent power. ;Q; at 58, 678 P.2d at 11. In
support of this holding, the supreme court observed:
Alvey has not cited a single authority for the
proposition that a trial judge has the inherent power to
dismiss an otherwise valid indictment prior to the
defendant's first trial. Nor could we, for a judge's
inherent~power to dismiss an indictment is not so broad.
;d; at 57, 678 P.2d at 10. The supreme court noted that although
a federal court is empowered to dismiss an indictment based on
governmental or prosecutorial misconduct, such supervisory power
will only be used "when the misconduct represents 'a serious
threat to the integrity of the judicial process.'" ;d;
(citation, internal quotation marks, and block quote format
omitted). The supreme court also cited state court decisions
requiring "a 'clear denial of due process,' evidence some
constitutional right has been violated, arbitrary action, or
governmental misconduct" to justify the dismissal of a charge.
;Q4 at 57-58, 678 P.2d at 10 (citations omitted).
With respect to the trial court's reliance on judicial
economy to support the exercise of its inherent power, the
supreme court stated, "Judicial economy is . . . not a legitimate
reason to dismiss an indictment prior to a defendant's first
trial. Except where Moriwake-type considerations apply,
dismissing an indictment just to ease a crowded docket is an
abuse of discretion." ldL at 58, 678 P.2d at 11.
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The supreme court explained why Alvey's case was
distinguishable from Moriwake:
In bringing criminal charges against Alvey the State's
interest is to prosecute prison crime. It is a strong
interest. In Moriwake the judicial interest in preventing a
third trial at which no new evidence would be presented,
combined with fairness to the defendant, outweighed the
State's interest in prosecution. Here, a trial will not
waste judicial resources nor deny Alvey fair treatment.W
we therefore hold that the trial judge abused his discretion
in using his inherent power to dismiss the indictment.
9 while there are serious questions about Alvey's
criminal intent, they are for the trier of fact to decide.
21 Am.Jur.2d, Criminal Law § 129 (1981).
III.
Correa was charged with abuse of a family or household
member. The State has a strong interest in prosecuting crimes
involving domestic abuse. §§§ Alvey, 67 Haw. at 58, 678 P.2d at
11; Coyle v. Compton, 85 HawaFi 197, 208, 940 P.2d 404, 415
(App. 1997) (noting the HawaFi Legislature's identification of
"a state interest in preventing domestic abuse and in protecting
family and household members against physical harm"). Correa was
not previously tried on the abuse charge. There was no
allegation that the DPA had engaged in conduct that infringed
upon Correa's right to a fair trial. Thus, the family court's
dismissal of the abuse charge was not necessary to protect the
integrity of the judicial process or to ensure fairness to Correa
in judicial proceedings. §§§ Moriwake, 65 Haw. at 56, 647 P.2d
7l2. The following observation of the supreme court in Alvey
applies to Correa's case:
[The defendant] has not cited a single authority
for the proposition that a trial judge has the
inherent power to dismiss an otherwise valid
indictment prior to the defendant's first trial. Nor
could we, for a judge's inherent power to dismiss an
indictment is not so broad.
Alvey, 67 Haw. at 57, 678 P.2d at 10. We conclude that the
family court exceeded the permissible bounds of its inherent
power in dismissing the charge against Correa.
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The sole basis for the family court's decision to
dismiss the abuse charge with prejudice was that the DPA had not
personally spoken in detail with the Complainant before the
calendar call. The family court was unwilling to accept any
substitute for the DPA personally speaking in detail to the
Complainant, and it specifically told the DPA, "[t]hat somebody
else talked to the complainant and is feeding you information is
inadequate." There is no indication that the DPA had advance
notice before the calendar call of the family court's
requirement.
In rendering its decision, the family court did not ask
the DPA whether anyone on the prosecution's team besides the DPA
had interviewed the Complainant. The family court did not ask
the DPA whether the DPA had reviewed materials, such as police
reports or interview statements, that would document the
Complainant's anticipated testimony. Nor did the family court
ask the DPA what the Complainant had told the DPA during their
brief conversation; what evidence the State had to prove its
case; or whether the State had evidence, such as a signed
statement by the Complainant, that would permit the State to
prove its case even if the Complainant recanted her allegations
of abuse. '
In addition, the reasoning underlying the family
court's decision was flawed. lt may not be necessary in all
abuse cases for the DPA to personally speak in detail with the
Complainant before the calendar call for the State to be ready
for trial. The DPA may become prepared by having other members
of the prosecution team interview the Complainant or by reviewing
police reports or interview statements. Moreover, the family
court assumed that the Complainant must have been available for a
detailed personal interview with the DPA because the Complainant
had previously spoken with defense counsel. However, complaining
witnesses in domestic abuse cases do not always make themselves
equally available to both parties before trial.
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The prosecuting attorney is to be accorded deference in
how to discharge the duties of his or her office, see Moriwake,
65 Haw. at 56, 647 P.2d at 712, which we conclude includes
deference in how the prosecuting attorney prepares a case for
trial. See United StateS V. Welch, 572 F.2d 1359, 1360 (9th Cir.
1978) (stating that the appellate court "will not interfere with
the Attorney General's prosecutorial discretion unless it is
abused to such an extent as to be arbitrary and capricious and
violative of due procesS"); gf; Alvey, 67 Haw. at 57-58, 678 P.2d
at 10-11. In this case, the family court imposed a blanket
requirement that the only way the State could be ready for trial
and avoid a dismissal with prejudice in a domestic abuse case is
for the DPA to personally speak in detail with the Complainant 1
before the calendar call. We conclude that in imposing and
applying this inflexible rule in this case, the family court,
without sufficient justification, encroached upon the prosecuting
attorney's prerogative to decide how to prepare his or her case
for trial.
As in Alvey, judicial economy was one of the family
court's key concerns in and motivations for using its inherent
power to dismiss the charge against Correa. The family court
indicated that it did not want to call in jurors to try the case
when the family court did not believe the State was ready.
However, as the Alvey court made clear, "[j]udicial economy is
not a legitimate reason to dismiss an indictment prior to a
defendant's first trial." Alvey, 67 Haw. at 58, 678 P.2d at 11.
In addition, Moriwake-type considerations do not apply because
Correa's case is clearly distinguishable from Moriwake. Correa
did not undergo two prior trials where the juries deadlocked with
no prospect for a different result in a third trial. Indeed,
Correa was not subject to any previous trial, and requiring
Correa to proceed to trial for the first time would not deny him
fair treatment or have an adverse effect on the integrity of the
judicial process. In the absence of Moriwake-type
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considerations, "dismissing [a charge] just to ease a crowded
docket is an abuse of discretion." lQ; at 58, 678 P.2d at 11.
We recognize that to promote the orderly functioning of
the court system, a trial court has an interest in ensuring the
preparedness of counsel and in appropriate circumstances may
sanction counsel for being unprepared. §§§, §;g;, HawaFi Rules
of Penal Procedure (HRPP) Rule 53(b) (2000) ("An attorney who
unjustifiably fails to prepare for a presentation to the
court necessitating a continuance may be subject to sanctions as
the court deems appropriate.") However, even when the State
violates the discovery requirements of HRPP Rule 16 (2007), the
trial court abuses its discretion in dismissing the case if it
fails to "consider whether less severe measures would rectify
prejudice caused to the defendant by the violation." State v.
Dowsett, 10 Haw. App. 491, 495, 878 P.2d 739, 742 (1994).
Here, there is no claim that the DPA had engaged in
conduct that caused prejudice to Correa. There is no indication
that_the DPA had advance notice of the family court's view that
the State could not be ready for trial unless the DPA personally
spoke in detail with the Complainant before the calendar call.
The family court did not ask the DPA why he had not previously
spoken in detail with the Complainant or what other steps the DPA
had taken to prepare for trial. There is also no indication that
the family court considered any less severe measures before
dismissing the abuse charge, such as sanctioning the DPA if that
turned out to be appropriate.
The State was entitled to have a trial on the merits of
the abuse charge against Correa. §§§ Alvey, 67 Haw. at 58 n.6,
678 P.2d at 11 n.6. Under the circumstances of this case, we
hold that the family court abused its discretion in using its
inherent power to dismiss the charge against Correa.
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CONCLUS ION
We vacate the April 13, 2009, Dismissal Order filed by
the family court, and we remand the case for further proceedings
consistent with this opinion.
On the briefs:
James M. Anderson &‘g
Deputy Prosecuting Attorney
Ci_ty & County of Honolulu
for Plaintiff-Appellant § ,
Jeffrey A. Hawk 6 '; ‘ g
(Hawk Sing & Ignacio)
for Defendant-Appellee _
_‘;1,.;. U.A }‘€<'~@“
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