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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-JAN-2023
07:56 AM
Dkt. 49 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOY BARUA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTA-18-02991)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Joy Barua (Barua) appeals from the
December 29, 2020 Findings of Fact [(FOFs)] and Order Granting
Motion to Dismiss Without Prejudice for Lack of Prosecution
(Dismissal Order) entered by the Honolulu Division of the
District Court of the First Circuit (District Court).1 This is
Barua's second appeal from the dismissal without prejudice of the
charge against him.
1
The Honorable Kenneth J. Shimozono (Judge Shimozono) entered the
Dismissal Order.
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On August 26, 2018, Barua was arrested, and on
September 14, 2018, Barua was charged via Complaint with one
count of Operating a Vehicle Under the Influence of an
Intoxicant, in violation of Hawaii Revised Statutes (HRS) § 291E-
61(a)(1) and/or (3) (Supp. 2017) (OVUII). On February 14, 2019,
the OVUII charge against Barua was dismissed for lack of
prosecution.
In Barua's first appeal, CAAP-XX-XXXXXXX, Barua argued
that the District Court made inadequate findings to support the
dismissal without prejudice and that the case against him should
be dismissed with prejudice without a remand for further
findings. The State of Hawai#i (State) agreed that the District
Court's findings were inadequate, but argued that Barua's failure
to order more than a single transcript from the District Court
proceedings rendered the record on appeal inadequate for
meaningful review of the District Court's exercise of its
discretion. This court concluded that the record was inadequate
for meaningful review of the District Court's exercise of its
discretion. The District Court's initial judgment of dismissal
was vacated and the case was remanded for the District Court to
enter findings to support its decision or for further proceedings
consistent with this court's Summary Disposition Order in CAAP-
XX-XXXXXXX.
On remand, the District Court entered the Dismissal
Order. The dismissal of the charge against Barua was based on
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the State's lack of prosecution for failing, at multiple
hearings, to present witnesses to challenge the allegations of
constitutional violations raised in Barua's November 6, 2018
motions to suppress (collectively, Motion to Suppress). The
District Court's exercise of its discretion to dismiss without
prejudice was based on the court's findings that Barua "shares
responsibility" for the delay in the prompt disposition of the
Motion to Suppress because, although counsel appeared on his
behalf, Barua did not appear at three of the hearings on his
Motion to Suppress.
Barua raises two points of error in this appeal,
contending that: (1) either the District Court should have
dismissed the case with prejudice or the District Court failed to
enter accurate and fair findings in support of the dismissal
without prejudice; and (2) the District Court erred in refusing
to issue FOFs or conclusions of law (COLs) as to why Barua could
not waive his right to be present for the suppression hearings in
this case.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, as well as the
relevant legal authorities, we resolve Barua's points of error as
follows:
(1) Barua includes multiple arguments in support of
his first point of error. In sum, he challenges various of the
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District Court's FOFs, alleged omissions from the FOFs, and the
District Court's conclusion that Barua contributed to the delay
because the suppression hearings would not have commenced without
his physical presence.
Barua argues that he did not move for dismissal, as is
noted in the Dismissal Order. This contention is not supported
by the record. At the February 14, 2019 hearing, Barua's counsel
stated, "you should grant the motion to suppress and/or dismiss
the case."
Barua argues that the District Court clearly erred in
certain FOFs concerning the hearings on the Motion to Suppress.
For clarity, these issues are addressed in the following context.
Upon review of the transcripts of proceedings, it is
clear that on October 22, 2018, the Honorable Darolyn Lendio Heim
set a suppression hearing for November 15, 2018. While there was
some confusion about that at the November 5, 2018 hearing before
the Honorable Sherri-Ann L. Iha, Judge Iha stated that the court
was "not vacating anything," in response to defense counsel's
request not to vacate the November 15, 2018 hearing date.
A hearing was held before the Honorable William M.
Domingo on November 15, 2018, which both parties and the court
treated as a hearing on the Motion to Suppress, as well as
Barua's motions to compel discovery. The State was not ready to
proceed on the Motion to Suppress. The State acknowledged that
it had made a mistake in not sending out any subpoenas for the
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Motion to Suppress. On that basis, Judge Domingo reset the
hearing on the Motion to Suppress to December 6, 2018. Although
it was stated on the record that Barua was not present (pursuant
to a Hawaii Rules of Penal Procedure (HRPP) Rule [43] waiver),
Judge Domingo's only statement in response was "[a]ll right,"
Barua's absence was not referenced as a reason for delay, and
Judge Domingo confirmed, with no objection from the State, that
"we'll charge everything to the State."
A hearing was held on December 6, 2018, before Judge
Iha. The transcript does not reflect Barua's presence at the
hearing; however, Barua's absence was neither the basis for
further delay nor commented on in any way. The hearing primarily
addressed outstanding discovery materials from the State. While
the exchange between the parties and the court was a bit terse,
Judge Iha ultimately stated, "Well, we're not going to do the
hearings on the motion to suppress (indiscernible) continue this
to [January] 9th?" Barua had sought to get the outstanding
discovery materials before the suppression hearing without the
suppression hearing delaying the January 9th trial date. Judge
Iha converted the January 9th trial date to a hearings on motions
date and said that a new trial date would be set that day.
The January 9, 2019 hearing was held before Judge
Shimozono. Corporation Counsel appeared on behalf of the
Honolulu Police Department's (HPD's) Communications Division, as
well as its Central Receiving Division, and requested at least an
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additional week extension to get responsive records to Barua.
Judge Shimozono indicated that the court would grant HPD
additional time, setting a January 16, 2019 deadline for HPD, and
set a trial date. Barua noted that they were set for hearing on
the Motion to Suppress and that, again, the State did not
subpoena its witnesses for the hearing. The State confirmed that
no officers were subpoenaed. After considerable back-and-forth
regarding who would be charged with what time for HRPP Rule 48
purposes (and no decision being made on that issue), a further
hearing was set on February 7, 2019, on the Motion to Suppress,
and no trial date was set. Again, the hearing transcript does
not reflect Barua's presence at the hearing; however, Barua's
absence was neither the basis for further delay nor commented on
in any way.
The February 7, 2019 hearing was held before Judge
Shimozono. Defense counsel noted that he wished to waive Barua's
presence at the hearing. After some discussion of materials that
had still not been produced by HPD, defense counsel represented
to the court that the State was not ready to proceed on the
Motion to Suppress and asked that the Motion to Suppress be
granted. At that point, Judge Shimozono noted that the Motion to
Suppress was an evidentiary hearing and that Barua was not
present. Defense counsel stated that they "had been proceeding
under [an HRPP] Rule 43 waiver." The District Court informed
defense counsel that it was not waiving the defendant's presence
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and, although noting that the State was not ready on the Motion
to Suppress, the defendant did not have prior permission to be
excused from the hearing. When asked the basis for not waiving
the defendant's presence, the District Court stated that it was
evidentiary, "[a]nd the court requires the defendant to be here,
just like the trial if it's evidentiary." The District Court
denied the defense's request for FOFs and COLs as to why the
court was requiring the defendant's presence. After confirming
with the State that it could be ready in a week, the District
Court reset the hearing on the Motion to Suppress to February 14,
2019, as well as the discovery status and motions to compel.
The February 14, 2019 hearing was held before Judge
Shimozono. Barua was present in the courtroom. The State
informed the District Court that the State was not ready to
proceed on the Motion to Suppress. The parties and the court
reviewed and confirmed that there were four hearings on the
Motion to Suppress where the State was not ready to proceed,
November 15, 2018, January 9, 2019, February 7, 2019, and
February 14, 2019. The District Court orally ruled:
THE COURT: Okay. So one, two, three, four. Okay. So what
I'm going to do is I'm going to deny the State's request to
continue this for APT and motions. I'm going to grant the
defense motion to dismiss. I'm going to dismiss it without
prejudice.
To the extent that the FOFs in the Dismissal Order are
inconsistent with the above, we are left with a definite and firm
conviction that a mistake has been made and they are clearly
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erroneous. As discussed above, Judge Lendio Heim set November
15, 2018, for a hearing on the Motion to Suppress and the State
was not ready to proceed on that day. Thus, there were four, not
three dates where the Motion to Suppress was set for hearing and
the State was not ready to proceed.2 The record does not support
an implied finding that the December 6, 2018 hearing on the
Motion to Suppress was continued because Barua was not present.3
We conclude that the District Court (Judge Shimozono
presiding) abused its discretion when it grounded its decision to
dismiss the charges against Barua without prejudice on Barua's
absence at the November 15, 2018 hearing before Judge Domingo,
the December 6, 2018 hearing before Judge Iha, and after-the-
fact, the January 9, 2019 hearing before Judge Shimozono.
We recognize that HRPP Rule 43 generally requires a
defendant's presence at pre-trial evidentiary hearings.4
2
At the February 14, 2019 hearing, the District Court recognized
the State's lack of readiness at four hearings, but in the Dismissal Order,
the District Court found that the State was not ready at three hearings. In
the State's appellate brief, the State references its four failures to be
ready to proceed on the Motion to Suppress, while arguing that the Dismissal
Order should be affirmed.
3
The Dismissal Order states, in paragraph 13.b., that "[t]he State
was ready to proceed on December 6, 2018, but the Defendant was not present."
4
HRPP Rule 43 provides in part:
Rule 43. PRESENCE OF THE DEFENDANT.
(a) Presence required. The defendant shall be
present at the arraignment, at the time of the plea, at
evidentiary pretrial hearings, at every stage of the trial
including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as
otherwise provided by this Rule.
(b) Continued presence not required. The further
progress of a pretrial evidentiary hearing or of the trial
to and including the return of the verdict shall not be
(continued...)
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However, the same rule permits a court to conduct an evidentiary
pretrial hearing in the defendant's absence when the defendant's
counsel orally represents that the defendant consents to the
conduct of the hearing in the defendant's absence. HRPP Rule
43(d)(1). Without commenting on Judge Shimozono's decision not
to rule on the Motion to Suppress on February 7, 2019, due to
Barua's absence from the courtroom on that date, neither Judge
Shimozono nor the State cite any rule or case law authority for
Judge Shimozono's determination that Judges Domingo and Iha would
not have been able to proceed in Barua's absence, and we find
none. In other words, there is no support in the law (or the
record in this case) for Judge Shimozono's after-the-fact ruling
4
(...continued)
prevented and the defendant shall be considered to have
waived the right to be present whenever a defendant,
initially present,
(1) is voluntarily absent after the hearing or trial
has commenced (whether or not the defendant has been
informed by the court of the obligation to remain during the
trial); or
(2) engages in conduct which is such as to justify
exclusion from the courtroom.
(c) Presence not required. A defendant need not be
present either physically or by video conference if:
(1) the defendant is a corporation and appears by
counsel; or
(2) the proceeding is a conference or argument upon a
question of law; or
(3) the proceeding is a reduction of sentence under
Rule 35.
(d) Presence may be waived for non-felony offenses.
In prosecutions for offenses other than a felony, the court
may:
(1) conduct an arraignment, wherein a plea of not
guilty is accepted, or conduct an evidentiary pretrial
hearing in the defendant's absence, provided the defendant
consents in writing or the defendant's counsel orally
represents that the defendant consents.
(Emphasis added).
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on whether the other judges could have proceeded to hearing if
the State had been ready.
The only other supporting ground stated for the
District Court's decision to dismiss without prejudice was
Barua's absence at the February 7, 2019 hearing, at which the
State was not prepared to go forward.5 Assuming that there was
no abuse of discretion in the District Court's refusal to proceed
in Barua's absence under the circumstances of this case, it is
undisputed that the State was unable to proceed with an
evidentiary proceeding on that date, and any delay resulting in
part from Barua's absence was only one week.
In Barua's previous appeal, this court explained:
"In criminal cases, 'the power of a court to dismiss a
case on its own motion for failure to prosecute with due
diligence is inherent.'" State v. Mageo, 78 Hawai #i 33, 37,
889 P.2d 1092, 1096 (App. 1995) (emphasis and brackets
omitted) (quoting State v. Estencion, 63 Haw. 264, 268,
625
P.2d 1040, 1043 (1981)). A trial court has the inherent
power to dismiss a charge with or without prejudice for the
failure to prosecute with due diligence, but must clearly
articulate the reasons for its decision so that a reviewing
court may accurately assess whether the trial court duly
exercised its discretion. See id. at 37-38, 889 P.2d at
1096-97 (trial courts exercising their inherent power to
dismiss a criminal case with prejudice should set forth
their reasons for doing so); State v. Hern, 133 Hawai #i 59,
64, 323 P.3d 1241, 1246 ([App.] 2013) (in determining
whether to dismiss a charge with or without prejudice under
Hawai#i Rules of Penal Procedure (HRPP) Rule 48(b), the
trial court must "clearly articulate the effect of the . . .
factors [set forth in Estencion, 63 Haw. at 269,
625 P.2d at
1044] and any other factor it considered in rendering its
decision"). When issuing its findings, the trial court
should consider the appropriate factors depending upon the
grounds for dismissal. Compare Mageo, 78 Hawai #i at 37-38,
889 P.2d at 1096-97 (dismissal with or without prejudice for
5
The parties have not argued, and we do not reach the issue of,
whether it is necessary for a defendant to be present pursuant to HRPP Rule
43, absent a waiver, when no evidentiary hearing could be held due to the
State's inability to meet its burden to present witnesses to challenge the
allegations of constitutional violations raised in a motion to suppress.
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want of prosecution requires "balancing of the interest of
the state against fundamental fairness to a defendant with
the added ingredient of the orderly functioning of the court
system" (quoting State v. Moriwake, 65 Haw. 47, 56,
647 P.2d
705, 712 (1982)) (bracket omitted)), with Estencion,
63 Haw.
at 269,
625 P.2d at 1044 (dismissal with or without
prejudice for violation of HRPP Rule 48 requires
consideration of: "the seriousness of the offense; the
facts and the circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.").
State v. Barua, No. CAAP-XX-XXXXXXX, 2020 WL 3497648 at *2-*3
(Haw. App. June 29, 2020) (SDO).
As noted, Mageo held that dismissal with or without
prejudice for want of prosecution requires "balancing of the
interest of the state against fundamental fairness to a defendant
with the added ingredient of the orderly functioning of the court
system." Mageo, 78 Hawai#i at 37-38, 889 P.2d at 1096-97
(citation and brackets omitted).
Here, although not citing Mageo, it appears that the
District Court applied the Mageo balancing test in FOFs 13(d),
(e), and (f):
d. The State has an interest in prosecuting criminal
offenses and imposing sanctions for criminal conduct.
That is clearly outweighed by the State's failure to
diligently prosecute this case in a timely manner and
the orderly functioning of the court system. While
the State was ready to proceed on the motions to
suppress on one occasion (December 6, 2018), the State
offered no justifiable explanation for its failure to
subpoena witnesses on two separate occasions (January
9, 2019 and February 14, 2019). In addition, the
State was not ready to proceed on February 7, 2019,
because a police officer did not appear at court to
testify.
e. Fundamental fairness to the Defendant requires that
Defendant's motions be heard and resolved in a timely
manner so that the case may [] proceed to trial.
However, Defendant has an obligation to be physically
present for evidentiary hearings pursuant to HRPP
43(a). On three of the four dates set for hearing on
the motions to suppress, Defendant was not present and
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did not receive the Court's permission to waive his
appearance. Therefore, Defendant's repeated failures
to appear would have prevented the hearings from
proceeding as scheduled and Defendant shares
responsibility in this case for the delay in the
prompt disposition of his motions to suppress. Both
the State and Defendant thereby failed to assist in
the orderly functioning of the court in this case.
f. In balancing the interest of the State against the
fundamental fairness to the defendant, with
consideration to the orderly functioning of the court
system, the court finds shared culpability in the
delay in the prompt disposition of the motions to
suppress in this case, with no explanation from the
State for their lack of diligence in issuing subpoenas
for its witnesses on two separate occasions, or from
Defendant for his failure to appear on multiple
(three) occasions for his evidentiary hearings.
Therefore, dismissal without prejudice in this case is
warranted insofar as it promotes the orderly and
prompt disposition of criminal cases, while not
rewarding Defendant's failures to appear by barring
any further proceedings in the case should the State
decide to refile the charges.
However, the District Court assessed in FOF 13(e) and
(f) that the Defendant bore "shared culpability" and "shared
responsibility" for the delay based on "Defendant's repeated
failures to appear" that "would have prevented the hearings from
proceeding as scheduled," even though no evidence could have been
presented, even if Barua had been in attendance. This assessment
clearly exceeds the bounds of reason and constitutes a manifest
abuse of discretion. The District Court's mixed FOF/COL in FOF
13(f) was clearly erroneous to the extent that it relied on
Barua's absence as the cause for delay impacting the orderly
court functioning in this case.6
6
The District Court also analyzed the Estencion factors that must
be analyzed when there is a dismissal based on HRPP Rule 48. However, there
was no dismissal based on HRPP Rule 48 in this case, and therefore, we need
not address the District Court's Estencion analysis. We note, however, the
District Court stated that it "finds that while there were delays attributable
(continued...)
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Thus, we conclude that the District Court failed to
duly exercise its discretion in dismissing the charge against
Barua without prejudice. This court has previously held that
even if a trial court's findings are insufficient to support its
decision to dismiss a case with or without prejudice, where the
record is sufficient for the appellate court to make a
determination of whether the trial court abused its discretion,
the appellate court may elect, at its option, to resolve the
appeal on the merits. State v. Hern, 133 Hawai#i 59, 64, 323
P.3d 1241, 1246 (App. 2013), abrogated on other grounds by State
v. Nicol, 140 Hawai#i 482, 494 n.12,
403 P.3d 259, 271 n.12
(2017). Under the circumstances of this case, where this issue
is on appeal for the second time after remanding to the District
Court to set forth sufficient findings, we conclude that it is
appropriate to resolve the appeal on its merits, rather than to
remand the case to the District Court.
For the reasons set forth above, the District Court's
December 29, 2020 Dismissal Order, which dismissed the charge
against Barua without prejudice, is reversed and prejudice is
6
(...continued)
to both the State and defendant in resolving the pending motions to suppress,
HRPP Rule 48 has not been violated as of the date of dismissal." There are no
findings to support a conclusion that HRPP Rule 48 had not been violated, a
long-established requirement in this jurisdiction. See, e.g., State v. Hutch,
75 Haw. 307, 331,
861 P.2d 11, 23 (1993) (holding that both trial courts
committed reversible error in denying defendant's HRPP Rule 48 motions without
stating their "essential findings on the record" in accordance with HRPP Rule
12(e)).
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hereby attached to the dismissal. In light of this conclusion,
we need not reach Barua's second point of error.
DATED: Honolulu, Hawai#i, January 24, 2023.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Richard L. Holcomb,
(Holcomb Law, LLLC), /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge
Stephen K. Tsushima, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.
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