State v. Sulenta ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUL-2022
07:46 AM
Dkt. 39 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant,
v.
COLE F. SULENTA, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX(3))
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Plaintiff-Appellant, State of Hawai#i (State) appeals
from the September 13, 2021 Findings of Fact (FOF), Conclusions
of Law (COL); Order Granting Defendant-Appellee Cole F. Sulenta's
(Sulenta) Motion to Dismiss Counts 1-5 for Insufficient Evidence
(Order Granting Motion to Dismiss), filed by the Circuit Court of
the Second Circuit (Circuit Court).1 Sulenta was charged via
Felony Information and Non-Felony Complaint (Information) with
Accidents Involving Death or Serious Bodily Injury in violation
of Hawaii Revised Statutes (HRS) § 291C-12; two counts of
Negligent Injury in the First Degree in violation of HRS § 707-
705; Operating a Vehicle Under the Influence of an Intoxicant in
violation of HRS § 291E-61(a)(1); and Reckless Driving of Vehicle
in violation of HRS § 291-2.
1
The Honorable Kelsey T. Kawano presided.
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On appeal, the State contends that the Circuit Court
erred in granting Sulenta's Motion to Dismiss Counts 1-5 for
Insufficient Evidence (Motion to Dismiss) and entering FOF 9 and
COLs 3, 4,2 5, 6, 7, 8, 9, 10, and 11.3
2
The Circuit Court's FOF, COL, and Order Granting Motion to Dismiss
contains a typographical error with two COLs numbered as COL 4. In its
Opening Brief, the State clarifies that it challenges the second COL 4 ( Second
COL 4).
3
The challenged FOF and COLS state:
FINDINGS OF FACT
. . . .
9. The Order Granting Motion to Suppress further concluded
that Officer Thompson's Declaration is inadmissible
testimonial hearsay barred by Crawford v. Washington, 541 U.
S. 36 (2004).
CONCLUSIONS OF LAW
. . . .
3. The State's additional evidence was set forth in Ofc.
Thompson's declaration was submitted in support of the
information charging packet. However, this Court has
determined that information to be inadmissible testimonial
hearsay, barred by Crawford v. Washington, 541 U.S. 36(2004).
. . . .
4. The information in the charging packet is admissible for
purposes of establishing probable cause to support the
information charge. But, it is not permissible for purposes
of opposing the subsequent motion to dismiss for lack of
probable cause nor for use at the trial where the proponent
of the hearsay statements is deceased and unavailable for
cross-examination.
5. When [Sulenta] exercised his right to seek dismissal of
the information pursuant to HRS § 806-86(a), he was stymied
in that effort because Ofc. Thompson was not here to answer
questions about his declaration.
6. None of the facts argued by the State in opposition to
the instant motion to dismiss have any basis for admission
and consideration by this Court without Ofc. Thompson.
7. The sources and identities of the declarant's hearsay
statements as related by Ofc [sic] Thompson in his
declaration are unknown to this Court. The declaration only
cited to two MPD reports, 19-035605 and 19-035607. But, they
are his own police reports, and his two police reports do
(continued...)
2
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Upon review of the record and the briefs submitted by
the parties and having given due consideration to the arguments
advanced and the issues raised, we resolve the State's point of
error as follows, and affirm.
The pertinent background is as follows. On April 30,
2020, the State filed the five-count Information against Sulenta,
along with sealed exhibits in support of the Information (Sealed
Exhibits), which contained the Declaration of Maui Police
Department (MPD) Officer Jason Thompson (Officer Thompson), who
investigated the case involving Sulenta. FOFs 2 and 3. On May
1, 2020, the Circuit Court found that the Sealed Exhibits
contained sufficient evidence to support a finding of probable
cause (PC) for the Information, and filed its Order Following
Judicial Review of Information and Complaint and Supporting
Documents (May 1, 2020 Order Finding PC).4 FOF 4.
3
(...continued)
not reference the additional evidence for which the State
argued.
8. Ofc. Thompson was not involved in investigating the
vehicle collision other than investigating [Sulenta] himself
for criminal conduct. Ofc. Thompson's records and files do
not indicate that he conferred with other officers who did
the collision investigation or what information was obtained
from such conferences. The only documented conference in his
reports was with Sergeant Ryan Saribay ("Sgt. Saribay"),
which was irrelevant to this issue of the additional
information.
9. None of the other records and files in this case,
including prior motions and exhibits attached thereto, and
the items listed in the foregoing paragraph 9 of the
Findings of Fact, indicate that Ofc. Thompson conferred with
other officers who investigated the incident or what
information was obtained from such conferences, with the
exception of a conference with Sgt. Saribay.
10. Accordingly, the current records and files of this case
are devoid of any evidence to support a finding of probable
cause for the continued prosecution of this case.
11. The trial court can dismiss a complaint or indictment
because of the incompetency of evidence. State v. Corpuz, 67
Haw. 438, 690 P.2d 282 (1984). Id., 67 Haw. at 440, 690 P.2d
at 284.
4
The Honorable Kirstin M. Hamman signed the May 1, 2020 Order
Finding PC. An amended order was filed on May 11, 2020.
3
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On August 5, 2020, Officer Thompson died. FOF 5.
In November 2020, Sulenta filed motions to suppress
statements and evidence (Motions to Suppress). In his Motions to
Suppress, Sulenta argued that the State's evidence, which
included documentation created by Officer Thompson, such as
evidence of oral statements made by Sulenta, Sulenta's
Standardized Field Sobriety Test, the Incident/Investigation
Report, the Motor Vehicle Accident Report, the transcript of
Officer Thompson's body camera (body cam) video, and the Lahaina
Police Station Processing Video (processing video), should be
suppressed because Officer Thompson was now deceased and
unavailable for cross-examination. Following a June 16, 2021
hearing5 on the suppression motions, the Circuit Court granted
the motions, and subsequently filed a July 23, 2021 FOF and COL;
Order Granting Motion to Suppress Evidence (July 23, 2021 Order
Granting Suppression).6
5
The State called the following witnesses at the hearing: Shayna
Hipolito, a former MPD employee who assisted Officer Thompson with booking
Sulenta at the Lahaina Police Station and authenticated the processing video;
MPD Officer Paul Pomainville, who authenticated Officer Thompson's body cam
video; and Sergeant Ryan Saribay, who responded to the police dispatch and was
the first officer on the scene of the accident, observed Sulenta at the scene,
and turned over the investigation once Officer Thompson arrived.
6
The Order Granting Suppression stated in pertinent part:
FINDINGS OF FACT
10. Ofc. Thompson also prepared a declaration (Dkt.
#3) which served as the sole basis for the judicial
determination of probable cause (Dkt. #7) for the Felony
Information and Non-Felony Complaint herein (Dkt.#1).
. . . .
CONCLUSIONS OF LAW
. . . .
19. Ofc. Thompson's declaration in support of the
Felony Information and Non-Felony Complaint herein, referred
to in paragraph 4 above fall within the "core class of
testimonial statements described in Crawford." State v.
Fitzwater, 122 Haw. 354, 371-373 (2010), quoting, Crawford
v. Washington, 541 U.S. at 51-52; Melendez v. Massachusetts,
557 U.S. 305, 129 S. Ct. 2527 (2009). The declaration is
inadmissible testimonial hearsay.
4
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The Circuit Court suppressed the documentation from Officer
Thompson, the body cam video, and the Lahaina Police Station
Processing Video, ruling these items inadmissible at trial due to
the Confrontation Clause and Sixth Amendment7 issues resulting
from Officer Thompson's unavailability for cross-examination by
Sulenta.
On July 29, 2021, Sulenta filed the Motion to Dismiss
at issue in this appeal, arguing inter alia, that dismissal was
necessary based on the July 23, 2021 Order Granting Suppression.
Sulenta attached the suppression order to his motion, urging that
"in light of [the order], it is evident that the State lacks the
evidence to proceed against [Sulenta] . . . ." In opposition,
the State argued that under HRS § 806-88(b), a determination of
probable cause may be based in whole or in part on hearsay
evidence and upon evidence that may ultimately be ruled
inadmissible at trial, and that there was sufficient additional
evidence that was not suppressed "for the case to proceed to
trial."
Following hearings on August 5 and 19, 2021, the
Circuit Court granted Sulenta's motion and dismissed Counts 1-5
without prejudice, noting in its oral ruling that the State could
re-file a felony information with the additional "potential
sources of evidence that may exist" that the State had made
reference to. On September 13, 2021, the Circuit Court filed its
FOF, COL, and Order Granting Motion to Dismiss, from which the
State timely appealed.
A circuit court's ruling on a "motion to dismiss an
[information] based on sufficiency of the evidence to support the
[information]" is reviewed de novo. State v. Shaw, 150 Hawai#i
56, 61, 497 P.3d 71, 76 (2021) (citing State v. Taylor, 126
Hawai#i 205, 215, 269 P.3d 740, 750 (2011)).
7
The sixth amendment to the United States Constitution and article
I, section 14 of the Hawai#i Constitution guarantee an accused the right to
confront adverse witnesses. State v. Balisbisana, 83 Hawai #i 109, 115, 924
P.2d 1215, 1221 (1996).
5
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Findings of fact are reviewed on appeal under the
clearly erroneous standard. Jones v. State, 79 Hawai #i 330,
334, 902 P.2d 965, 969 (1995). "A finding of fact is clearly
erroneous when, despite evidence to support the finding, the
appellate court is left with the definite and firm
conviction in reviewing the entire evidence that a mistake
has been committed." Id. (quoting Tachibana v. State, 79
Hawai#i 226, 231, 900 P.2d 1293, 1298 (1995)). "A finding of
fact is also clearly erroneous when the record lacks
substantial evidence to support the finding." O'Grady v.
State, 140 Hawai#i 36, 43, 398 P.3d 625, 632 (2017) (quoting
In re Grievance Arbitration Between State of Haw. Org. of
Police Officers, 135 Hawai#i 456, 461-62, 353 P.3d 998,
1003-04 (2015)).
"An appellate court may freely review conclusions of
law and the applicable standard of review is the right/wrong
test." Dan v. State, 76 Hawai#i 423, 428, 879 P.2d 528, 533
(1994) (quoting Maria v. Freitas, 73 Haw. 266, 270, 832 P.2d
259, 262 (1992)).
Birano v. State, 143 Hawai#i 163, 181, 426 P.3d 387, 405 (2018).
FOF 9
FOF 9 stated that the suppression order concluded that
Officer Thompson's Declaration was inadmissible hearsay banned by
the Crawford case. The State acknowledges that FOF 9 "is a
correct statement of what the Circuit Court ruled" in the
suppression order, but claims that FOF 9 "incorrectly implies
that the admissibility of evidence is a proper consideration on a
Motion to Dismiss an Information." The State thus concedes that
FOF 9 is accurate and not clearly erroneous as a factual finding.
The State's disagreement with an implication of FOF 9 that it
perceives as incorrect does not render FOF 9 clearly erroneous as
a factual finding. See Birano, 143 Hawai#i at 181, 426 P.3d at
405.
COL 3
The State argues that COL 3 is erroneous because the
admissibility of evidence is not "a proper consideration" on a
motion to dismiss an Information and that "while Crawford has
implications regarding admission at trial, it has no bearing on
the determination of probable cause." We do not read COL 3 as
applying Crawford to a "determination of probable cause." COL 3,
6
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which is actually an FOF, merely states that the evidence in
Thompson's Declaration in support of the Information was
previously determined by the court "to be inadmissible
testimonial hearsay" banned by Crawford. This FOF is based on
the record of prior proceedings in this case, is supported by the
suppression order, and is not clearly erroneous. See id.
Second COL 4 and COLs 5 - 10
The State argues that Second COL 4 was wrong, where the
Circuit Court concluded that the "information in the charging
packet," i.e. Officer Thompson's Declaration, "is not permissible
for purposes of opposing the subsequent motion to dismiss for
lack of probable cause nor for use at the trial where the
proponent of the hearsay statements is deceased and unavailable
for cross-examination." The State argues that HRS §§ 806-85(b)8
and 806-88(b)9 allow the court to rely upon hearsay for both the
8
HRS § 806-85 (2014), entitled "Probable cause," provides in
pertinent part:
(a) When an information is filed, the court having
jurisdiction shall review the information and its exhibit to
determine whether there is probable cause to believe that
the offense charged was committed and that the defendant
committed the offense charged.
(b) A finding of the existence of probable cause or lack
thereof may be based in whole or in part upon hearsay
evidence or upon evidence that may ultimately be ruled to be
inadmissible at the trial.
(c) If the court finds that there is probable cause to
believe that the offense charged was committed and that the
defendant committed the offense charged, the court shall set
bail and direct the clerk to issue a warrant for the arrest
of the defendant. . . .
9
HRS § 806-88 (2014), entitled "Ruling on motion to dismiss,"
provides:
(a) The court shall determine from an examination of the
information and its attachments, and in light of any
evidence presented at a hearing on a motion to dismiss the
information, whether the information and its attachments
establish the existence of probable cause to believe that
the offense charged has been committed and that the
defendant committed the offense charged.
(continued...)
7
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probable cause determination and a motion to dismiss an
Information. The State also claims that Second COL 4 conflicts
with HRS § 806-88, which "requires consideration" of Officer
Thompson's Declaration submitted in support of the Information.
While the wording in Second COL 4 is confusing, COL 7
makes clear that the Circuit Court did consider Officer
Thompson's Declaration. The Circuit Court's reasoning in Second
COL 4 and COL 5 turned on Sulenta's inability to exercise his
right to call the officer and question him at the motion to
dismiss hearing as provided by HRS § 806-87(a).10 HRS § 806-
87(a) provides that a defendant may introduce evidence at a
hearing to dismiss an Information, by issuing subpoenas and
calling witnesses, to challenge the existence of probable cause.
Sulenta was unable to do this since Officer Thompson had passed
away. Hence, COL 5's conclusion that Sulenta was "stymied" in
seeking dismissal of the Information under HRS § 806-88(a),
"because Officer Thompson was not here to answer questions about
his declaration," was not wrong. See id. As the State points
out, HRS § 806-88 requires the court to rule on a motion to
dismiss based on reviewing the Information and attachments, but
9
(...continued)
(b) A finding of the existence of probable cause or lack
thereof may be based in whole or in part upon hearsay
evidence or on evidence that may ultimately be ruled to be
inadmissible at the trial.
10
HRS § 806-87 (2014), entitled "Evidence at hearing on motion to
dismiss," provides:
(a) The defendant may introduce evidence at the hearing.
The defendant may also subpoena and call witnesses if the
motion is accompanied by a declaration stating that counsel
for the defendant (or the defendant if appearing without
counsel) has a good faith basis to believe that each witness
subpoenaed will provide specific testimony to help
demonstrate that the information and its exhibit or exhibits
do not establish the existence of probable cause to believe
that the offense charged has been committed or probable
cause to believe that the defendant committed the offense
charged.
(b) The court may, in its discretion, permit the State to
call witnesses, introduce evidence, or otherwise supplement
the exhibit or exhibits appended to the information.
(Emphases added).
8
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the statute also requires consideration of "any evidence
presented at a hearing" on a motion to dismiss. Here, the
Circuit Court in COL 7 did consider the contents of Officer
Thompson's Declaration pursuant to HRS § 806-88(a), but further
concluded that the Declaration and the other "facts argued by the
State" could not be used to oppose the Motion to Dismiss where
the officer "is deceased and unavailable for cross-examination."
Second COL 4, COL 6. Second COL 4 and COL 6 were not wrong under
the circumstances of this case, where Sulenta could not call or
question Officer Thompson as a witness at the Motion to Dismiss
hearing as provided by HRS § 806-87. See id.
As to COLs 7-10, the State argues that these COLs are
again "flawed" because they "ignore the basis [sic] principle
regarding what may be considered on a Motion to Dismiss an
Information" under HRS §§ 806-85(b) and 806-88(b). COLs 7-10 do
not disregard HRS §§ 806-85(b) and 806-88(b), but reflect the
Circuit Court's consideration of the entirety of the record
before it, consistent with the hearing procedure set forth in HRS
§ 806-87. At a motion to dismiss hearing, HRS § 806-87 permits
both sides the opportunity to present additional evidence beyond
the original evidence in support of the initial probable cause
determination. Here, the Circuit Court properly considered
evidence beyond Officer Thompson's Declaration attached to the
Information, pursuant to HRS §§ 806-87 and 806-88. Following a
motion to dismiss hearing conducted in accordance with HRS §§
806-85, 806-86, 806-87, and 806-88, COLs 7-10 set forth the
Circuit Court's description and analysis of, and conclusions
about the record of evidence presented. These COLs are not
erroneous. See id.
COL 11
The State argues that the Circuit Court erred in COL
11, which cites State v. Corpuz, 67 Haw. 438, 690 P.2d 282(1984), for the "proposition that a [] 'trial court can dismiss a
Complaint or Indictment because of the incompetency of
evidence.'" The State argues that this conclusion "ignores the
9
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actual holding of Corpuz, which explicitly permits reliance upon
hearsay testimony to support an Indictment." The State also
argues that COL 11 is incorrect because "it specifically
references dismissal of Complaints and Indictments" and not a
Felony Information. These arguments lack merit.
In Corpuz, the supreme court reaffirmed prior precedent
that: "'where the hearsay testimony was not used deliberately in
the place of better evidence to improve the case for an
indictment, dismissal of the indictment is not required.'"
Corpuz, 67 Haw. at 440, 690 P.2d at 285 (quoting State v. Murphy,
59 Haw. 1, 6, 575 P.2d 448, 453 (1978)). COL 11 refers to the
standard of review used in the Corpuz case, and is not an
erroneous statement of law. See id. at 440, 690 P.2d at 284 ("A
motion to dismiss an indictment because of the incompetency of
evidence before a grand jury is addressed to the discretion of
the trial court.").
The State's second argument that Corpuz applies only to
complaints or indictments and not to an Information also lacks
merit. Legal precedent and authorities pertaining to complaints
and indictments similarly apply to a felony information. See HRS
§ 806-9;11 see also State v. Pitolo, 141 Hawai#i 131, 138 n.12,
406 P.3d 354, 361 n.12 (App. 2017) (quoting HRS § 806-9 and
recognizing that the requirement that an indictment contain an
averment of facts regarding a statute of limitations also applies
to a felony information).
We thus conclude that the Circuit Court did not err in
granting the motion to dismiss the Information without prejudice.
See Shaw, 150 Hawai#i at 61, 497 P.3d at 76.
For the foregoing reasons, we affirm the September 13,
2021 Findings of Fact, Conclusions of Law; Order Granting
Defendant-Appellee Cole F. Sulenta's Motion to Dismiss Counts 1-5
11
HRS § 806-9 (2014), entitled "Information, laws applicable,"
states in pertinent part:
All provisions of law applying to prosecutions upon
indictments, . . . to motions, pleadings, trials, . . . and
to all proceedings in cases of indictment, whether in the
court of original or appellate jurisdiction, shall in the
same manner and to the same extent as near as may be, apply
to information and all prosecutions and proceedings thereon.
10
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for Insufficient Evidence, filed by the Circuit Court of the
Second Circuit.
DATED: Honolulu, Hawai#i, July 27, 2022.
On the briefs:
/s/ Katherine G. Leonard
Richard B. Rost, Presiding Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Keith K. Hiraoka
for Plaintiff-Appellant. Associate Judge
Myles S. Breiner, /s/ Karen T. Nakasone
(Law Office of Myles S. Associate Judge
Breiner & Associates),
for Defendant-Appellee.
11