State v. Barua

522 P.3d 1131, 152 Haw. 144

• Court: Hawaii Intermediate Court of Appeals
• Decided: January 24, 2023
• Docket: CAAP-21-0000040
• Status: Published

Opinion

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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. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.