State v. Adam

40 P.3d 877, 97 Haw. 475, 2002 Haw. LEXIS 76
CourtHawaii Supreme Court
DecidedFebruary 8, 2002
Docket23030
StatusPublished
Cited by17 cases

This text of 40 P.3d 877 (State v. Adam) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Adam, 40 P.3d 877, 97 Haw. 475, 2002 Haw. LEXIS 76 (haw 2002).

Opinion

Opinion of the Court by

MOON, C.J.

Real party in interest-appellant Michael G.M. Ostendorp appeals from the order of the circuit court of the third circuit, the Honorable Ronald Ibarra presiding, ordering Ostendorp to pay, inter alia, jury fees and costs in the amount of $2,460.27 for failing to appear at a jury trial. Ostendorp claims that the circuit court: (1) violated his right to due process by sanctioning him without adequate notice or an opportunity to be heard in a timely manner; (2) abused its discretion in sanctioning him under the Rules of the Circuit Courts of the State of Hawaii (RCCH) Rule 15(b) (1999) (providing that a court may sanction an attorney for failing to appear without just cause) (quoted in full infra)-, and (3) abused its discretion in sanctioning him pursuant to its inherent authority. Because Ostendorp’s claims lack merit, we affirm the circuit court’s order.

I. BACKRGOUND 1

Ostendorp represented Defendant Richard Lewis Adam, who was charged with: assault, terroristic threatening, reckless endangerment, and promoting a detrimental drug. Ostendorp became counsel of record on October 19, 1998, after Adam’s second attorney, 2 William I. Zimmerman, withdrew because he was engaged in ⅜ law practice with the deputy prosecutor’s husband.

*477 On April 14, 1999, Ostendorp filed a Motion to Continue Trial Week, which was heard on April 19, 1999. In granting the defense’s motion to continue, the circuit court and counsel had the following exchange:

THE COURT: September 7th?
DEPUTY PROSECUTOR: That’s fine, Your Honor.
THE COURT: Mr. Ostendorp?
OSTENDORP: Your Honor, if I may look—September 7th. The week of the [sic] September 6th, I’m supposed to be starting something in Federal Court, although we’ve been bounced three times, a civil case. September 7th is fíne, Your Hon- or.

(Emphasis added.)

On July 31,1999, United States Magistrate Judge Barry Kurren (Magistrate Kurren) informed Ostendorp that his civil trial in federal court would commence on August 31,1999. According to Ostendorp, Magistrate Kurren made it clear that the trial would not be continued except for a “very good reason”. Ostendorp said he believed the federal trial would last two to three weeks. Ostendorp stated, however, that Magistrate Kurren believed the trial would only take two to three days.

On August 3,1999, Ostendorp filed another Motion to Continue Trial Week, which was heard on August 9, 1999. Ostendorp informed the circuit court that he did not tell the federal court of his scheduling conflict when it advanced the federal trial date. When the circuit court inquired as to why Ostendorp did not request that the federal court reschedule, Ostendorp responded, “Honestly, Judge, because I’m more afraid of Judge Ezra than you. I’m sorry. It’s the naked truth. I’m—especially after we got him turned over on [sic] Ninth Circuit, so I— yeah, I’m just more afraid of him.” The circuit court denied Ostendorp’s motion, stating:

And the only reason I am not continuing the ease at this point, without even heard [sic] the prosecutor’s opposition, is this case was set. You went into Federal Court knowing that this case was set. You did not tell the Federal judge that you had a trial, and now you come back after the Federal Court set the trial which may conflict—I say “may,” with this case.

After the circuit court issued its decision, Ostendorp did not attempt to clarify his recitation of the facts or move to reconsider the court’s order.

On August 26, 1999, the circuit court filed orders denying Adam’s Motion to Disqualify, the State’s Attorneys and his Motion to Dismiss for Failure to Provide Discovery. On August 31, 1999, Ostendorp filed a notice of appeal, appealing from the circuit court’s denial of the two motions, arguing that the appeal was appropriate under the collateral order doctrine.

On September 2, 1999, Ostendorp telephoned the circuit court to determine whether trial would commence on September 7th as scheduled. The court arranged for a telephone conference with the parties the same day. During the telephone conference, Os-tendorp expressed his belief that trial could not proceed because the circuit court lost jurisdiction over the case when Ostendorp filed the August 31, 1999 notice of appeal. The circuit court believed that the orders Adam was appealing from were not final judgments and did not fall within the collateral judgment rule. The circuit court, therefore, ordered, “Mr. Ostendorp, absent a Supreme Court writ of mandamus, 3 you are ordered to be here with your client on Tuesday [September 7, 1999], at 9 o’clock for a jury trial.” During the telephone conference, Ostendorp did not inform the court of any scheduling conflict and did not tell the court that he would not be able to appear for trial on September 7,1999.

On September 7, 1999, Ostendorp did not appear for Adam’s jury trial. Adam appeared and was accompanied by attorney Peter E. Roberts. 4 Roberts informed the *478 eoui’t that Ostendorp was in Honolulu, and that, although his federal trial was ongoing, Ostendorp was not in trial that day.

The circuit court noted that the defense had failed to submit a witness list, an exhibit list, and proposed jury instructions as directed by the court. Roberts stated that he was unaware of the deadlines and that his appearance was the result of a telephone call from Ostendorp three days earlier. The court voiced concerns about a possible ineffective assistance of counsel allegation and inquired whether Roberts was prepared to proceed. After conferring with Adam, Roberts and the court had the following exchange:

ROBERTS: Now, your Honor, as to proceeding today, I must make two representations to the Court. The first representation is that Mr. Adam, in fact, is extremely hesitant to proceed to trial with me covering for Mr. Ostendorp.
The second representation is, however, that I have reviewed the police reports in this matter, the investigative reports in this matter. I believe that I have a clear understanding of the issues presented in the case. Hence, absent—Oh, and I have not discussed with Mi*. Adam proposed testimony by himself. In other words, I haven’t prepared him, I haven’t gone over any questions with him. Absent that, I believe I’m aware of the facts of the case.
THE COURT: Are you prepared to try this case?
ROBERTS: I cannot represent that I believe I cannot do so, no. I believe I can.
THE COURT: You can try this case?
ROBERTS: (Nods head.)
THE COURT: Are you Mr. Adam’s attorney?
ROBERTS: That’s where the sticking point is.
THE COURT: Are you retained by Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
40 P.3d 877, 97 Haw. 475, 2002 Haw. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-adam-haw-2002.