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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-FEB-2024
09:09 AM
Dkt. 62 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
JOSHUA LAGRANGE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC141001041)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Joshua LaGrange (LaGrange) appeals
from the March 6, 2023 Order Revoking Conditional Release (Order
Revoking CR) entered by the Circuit Court of the First Circuit
(Circuit Court).1 Following a March 6, 2023 hearing on
Plaintiff-Appellee State of Hawai‘i's (State) February 17, 2022
"Motion to Revoke Order Granting Conditional Release [(CR)] and
Issuance of Bench Warrant" (Motion to Revoke CR), the Circuit
Court granted the motion, revoked CR, and ordered LaGrange be
1 The Honorable Christine E. Kuriyama presided.
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committed to the custody of the Department of Health (DOH).2 The
Motion to Revoke CR alleged that LaGrange violated the terms of
his conditional release by leaving his court-approved residence,
failing to notify his probation officer of his new address, and
causing his whereabouts to become unknown. At the hearing,
LaGrange did not contest the violation, but argued that the
State had failed to adduce evidence that LaGrange was "still
affected by a . . . mental disease, disorder, or defect[,]"
which was required under HRS § 704-413(4)(a).3
On appeal, LaGrange challenges the revocation of his
CR, contending that the Circuit Court erroneously took judicial
notice4 of a February 22, 2023 letter from Hawai‘i State Hospital
2 LaGrange had been placed on CR on March 31, 2016 following entry
of a judgment of acquittal and commitment to DOH custody on the basis of a
mental disease, disorder, or defect excluding penal responsibility under
Hawaii Revised Statutes (HRS) § 704-404, for a second-degree assault charge.
3 HRS § 704-413(4)(a)(2014) provides in pertinent part:
(4) If, at any time after the order pursuant to this
chapter granting conditional release, the court determines,
after hearing evidence, that:
(a) The person is still affected by a physical or
mental disease, disorder, or defect, and the
conditions of release have not been fulfilled[,] . .
.
the court may forthwith modify the conditions of release or
order the person to be committed to the custody of the
director of health, subject to discharge or release in
accordance with the procedure prescribed in section 704-
412[.]
(Emphases added.)
4 Hawai‘i Rules of Evidence (HRE) Rule 201(b) provides:
A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court, or
(2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.
We do not agree with the State's assertion on appeal that the HRE do
not apply to a CR revocation hearing, citing HRS § 704-415(2) (application
for CR or discharge from CR) and HRS § 706-625(2) (revocation of probation).
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psychiatrist, Kent Booher, M.D. (Dr. Booher) as evidence that
LaGrange was "still affected by a . . . mental disease,
disorder, or defect" under HRS § 704-413(4)(a) ("still affected"
finding).
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, we resolve
LaGrange's point of error as follows, and vacate and remand.
"[W]hether a particular fact is a proper subject for
judicial notice is a question of law" reviewed de novo under the
right/wrong standard of review. Ditto v. McCurdy, 98 Hawai‘i
123, 128, 44 P.3d 274, 279 (2002) (citation omitted).
In granting the State's Motion to Revoke CR, the
Circuit Court took judicial notice of Dr. Booher's February 22,
2023 letter over defense objection, and made the "still
affected" finding under HRS § 704-413(4)(a).5
HRS § 706-625(2) pertains to revocation of probation and is inapposite. HRS
§ 704-415(2), pertaining to application for CR on discharge from CR, states:
"such hearing shall be deemed a civil proceeding . . . ." We conclude that
the statute here, HRS § 704-413(4), pertaining to the modification or
revocation of CR, is also a "civil proceeding." HRE Rule 1101(b) provides
that the rules "apply generally to civil and criminal proceedings[,]" and
subsection (d)(3) lists specific types of "[m]iscellaneous proceedings" where
the HRE are inapplicable. Among the list of HRE-inapplicable proceedings are
proceedings "granting or revoking probation[.]" CR proceedings are not
listed among the exclusions. Thus, the HRE apply here.
5 Regarding Dr. Booher's letter, the Circuit Court stated: "The
Court has taken judicial notice of the record and file, which would include
the February 22, '23 letter from Dr. Booher, staff psychiatrist at the Hawaii
State Hospital."
Defense counsel objected to the Circuit Court's "still-affected"
finding as follows:
[DEFENSE COUNSEL]: So is the Court finding that
[LaGrange] is still affected by a physical or mental
disease, disorder, or defect? And if the Court is making
that finding, I am objecting. I believe you can only make
that finding based on reviewing letters that have been
submitted over the last year, and in so doing, as I said,
that is not evidence presented, and you are violating my
client's due process rights . . . . That can't be taken
away without due process of law. Those rights apply right
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LaGrange argues that the Circuit Court "exceeded the
permissible scope of judicial notice when it noticed the alleged
facts set forth in the letter and used Dr. Booher's statements
as evidence to support a finding that Lagrange was still
affected by a physical or mental disease, disorder or defect."
The State counters that "although the statute specifies that the
court must determine at a hearing that a person is still
now, regardless of the--the rules of evidence. He has not
had an opportunity to confront anybody who said--presented
evidence that he is currently suffering from a mental
disease, disorder, or defect. That is our position.
THE COURT: Okay. Thank you.
[DEFENSE COUNSEL]: So I'm asking the Court to make a
clear determination. Are you--are you making that
determination today that he is still affected or not?
'Cause [sic] that--that was not in the recitation of the
Court's ruling.
(Pause in proceedings.)
THE COURT: Let's go off record briefly.
(Recess taken.)
THE CLERK: Back on record.
THE COURT: All right. Counsel, having reviewed
Section 704-413, subsection (4), the Court is, based on the
record and the arguments made by the State, and the record
would include the record in file and the credible and
reliable evidence, the Court's making the finding that Mr.
Lagrange is still affected by a physical or mental disease,
disorder, or defect, and the conditions of release have not
been fulfilled. And this is over your objection, correct?
[DEFENSE COUNSEL]: Yes, Your Honor. And--and I think
I made most of it on the record, but just so it's very
clear, my objection to the Court making that specific
finding that he's still suffering a mental illness is that
there has not been evidence put before the Court today.
And merely going and looking at old letters does not say
that he is still in that mental position. And of course
looking at those old letters to make a factual
determination that today he still has a mental illness I
would argue is a big-time due process violation when you
are depriving him of liberty indefinitely.
. . . .
(Emphases added.)
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affected by a physical or mental disease, disorder, or defect,
this does not require a full-blown evidentiary hearing with live
testimony." The State maintains that "[i]t is sufficient for a
court to rely on a prior finding of physical or mental disease,
disorder, or defect, especially when no showing has been made of
any change of condition." In this case, however, the record
reflects the Circuit Court did not rely on a prior finding of
mental disease, disorder, or defect and instead took judicial
notice of Dr. Booher's letter.
"'[A] distinction must be carefully drawn between
taking judicial notice of the existence of documents in the
Court file as opposed to the truth of the facts asserted in
those documents.'" Uyeda v. Schermer, 144 Hawai‘i 163, 172, 439
P.3d 115, 124 (2019) (emphases in original) (citation omitted).
In State v. Akana,
68 Haw. 164,
706 P.2d 1300 (1985), the
supreme court drew a distinction between "[t]he existence of a
conviction properly recorded in court records" as "an
adjudicative fact 'capable of accurate and ready
determination,'" and the "facts underlying the conviction,"
which cannot be "the proper subject of judicial notice." Uyeda,
144 Hawai‘i at 172-73,
439 P.3d at 124-25.
Here, although the Circuit Court could take judicial
notice of the existence of Dr. Booher's letter, the Circuit
Court erred when it relied on the contents of Dr. Booher's
letter to make its "still-affected" finding under HRS § 704-
413(4)(a). See id. at 172, 439 P.3d at 124; Ditto, 98 Hawai‘i at
128,
44 P.3d at 279. Assuming arguendo the "truth of the facts
asserted" in Dr. Booher's letter could be considered, the letter
contains no statement that LaGrange was "still affected" by a
mental disease, disorder, or defect at the time the letter was
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written, six days before the hearing.6 See Uyeda, 144 Hawai‘i at
172, 439 P.3d at 124.
Under HRS § 704-413(4)(a), the Circuit Court cannot
modify CR unless the court determines that "[t]he person is
still affected by a physical or mental disease, disorder, or
defect and the conditions of release have not been fulfilled[.]"
Because the record lacks evidence regarding the "still-affected"
finding, the Motion to Revoke CR was erroneously granted.
For the foregoing reasons, the Order Revoking
Conditional Release filed on March 6, 2023 by the Circuit Court
of the First Circuit is vacated, and we remand for a new hearing
or further proceedings consistent with this order.
DATED: Honolulu, Hawai‘i, February 20, 2024.
On the briefs:
/s/ Katherine G. Leonard
Jon N. Ikenaga,
Acting Chief Judge
Deputy Public Defender
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney
/s/ Karen T. Nakasone
for Plaintiff-Appellee.
Associate Judge
6 Dr. Booher's letter contains only implicit references to
LaGrange's mental disease, disorder, or defect, that "Mr. Lagrange remains
stable at his medicated baseline" and that LaGrange was "well down the path
of becoming permanently institutionalized."
6
