State v. Hawkes

Opinion

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 07-AUG-2026 07:47 AM Dkt. 79 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

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STATE OF HAWAI#I, Plaintiff-Appellee, v. BEAU HAWKES, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPC-XX-XXXXXXX)

August 7, 2026

HIRAOKA, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

A grand jury indicted Beau Hawkes on two counts of

assault in the second degree and one count of terroristic

threatening in the first degree. Hawkes moved to dismiss the

indictment because of grand jury counsel misconduct. The Circuit

Court of the Second Circuit granted the motion and entered an

order dismissing the indictment without prejudice.1 Hawkes

appeals, arguing "the trial court failed to engage in any type of

1 The Honorable Kelsey T. Kawano presided. FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

analysis as to whether or not the dismissal should have been with

or without prejudice."2

We hold that Hawaii Revised Statutes (HRS) § 612-59

(2016) calls for dismissal of an indictment without prejudice if

a court, exercising its discretion, determines that grand jury

counsel misconduct affected the fairness and impartiality of the

proceeding by tending to induce action other than what reasonable

grand jurors would deem warranted based on the evidence fairly

presented to them. The legislative history confirms that

dismissal with prejudice is not an option.

I. STANDARD OF REVIEW

Statutory interpretation is a question of law reviewed

de novo. In re Maui Fire Cases, 155 Hawai#i 409, 424, 565 P.3d

754, 769 (2025). The fundamental starting point is the language

of the statute; where it is plain and unambiguous, we must give

effect to its plain meaning. Id.

2 The day before Hawkes's motion to dismiss for grand jury counsel misconduct was heard, Hawkes filed another motion to dismiss, for prosecutorial misconduct. During the hearing on the first motion to dismiss, the circuit court said the motion was granted and told Hawkes he was free to go. Hawkes asked if the dismissal was with prejudice. The court stated it was without prejudice. Hawkes orally moved to withdraw the motion and have his second motion heard. The court orally denied the oral motion. Hawkes challenges the denial, but an oral order is not appealable. State v. Bohannon, 102 Hawai#i 228, 235, 74 P.3d 980, 987 (2003). At any rate, the grant of the first motion rendered the second motion, and any prosecutorial misconduct, moot. Hawkes also moved for reconsideration of the dismissal without prejudice "pursuant to Rule 60(b) and Rule 59(e) of the Hawaii Rules of Civil Procedure." The court orally denied the motion. Hawkes challenges the denial. The Hawai#i Rules of Civil Procedure (HRCP) do not apply to criminal cases. HRCP Rule 1(a). The Hawai#i Rules of Penal Procedure do not provide for a motion for reconsideration. We decline to consider Hawkes's appeal from the oral denial of an inappropriate motion.

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If statutory language is unambiguous, we need not

examine legislative history. Barker v. Young, 153 Hawai#i 144,

149, 528 P.3d 217, 222 (2023). But:

The legislative history of a statute remains relevant even when the language appears clear upon perfunctory review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.

Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439, 452, 420 P.3d

370, 383 (2018) (cleaned up).

II. DISCUSSION

HRS § 612-57 (2016) establishes grand jury counsel's

duties:

The grand jury counsel shall serve, upon request of the grand jury, as independent legal counsel to the grand jury, to be at the call of the grand jury during its proceedings in obtaining appropriate advice on matters of law after the grand jury has been sworn and charged by the court under section 612-16(d) and during the court's absence. The grand jury counsel may be present during grand jury proceedings, and if not present in the building shall be in the immediate vicinity to the building in which the grand jury meets, so that counsel will be readily available to the grand jury, but shall not participate in the questioning of the witnesses or the prosecution. The grand jury counsel's function shall be only to receive inquiries on matters of law sought by the grand jury, conduct legal research, and provide appropriate answers of law.

"Grand jury counsel misconduct," like "prosecutorial

misconduct," is a legal term of art referring to any improper

action committed by grand jury counsel, however harmless or

unintentional. Cf. State v. Brown, 157 Hawai#i 354, 381, 577

P.3d 1045, 1072 (2025) (concerning prosecutorial misconduct).

A court may dismiss an indictment if it finds that

grand jury counsel misconduct "tended to induce action other than

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that which reasonable grand jurors, in their uninfluenced

judgment, would deem warranted based on the evidence fairly

presented to them." State v. Griffin, 126 Hawai#i 40, 53, 266

P.3d 448, 461 (App. 2011), abrogated on other grounds by, State

v. Kato, 147 Hawai#i 478, 465 P.3d 925 (2020).

The State does not argue there was no grand jury

counsel misconduct, or that Hawkes's indictment should not have

been dismissed. The issue presented by this appeal is whether

the trial court erred by not analyzing whether the dismissal

should be with, rather than without, prejudice. We didn't reach

that issue in Griffin because we affirmed the circuit court's

denial of the motion to dismiss the indictment. Id. at 53-54,

266 P.3d at 461-62.

A. HRS § 612-59 calls for dismissal without prejudice if a court determines that grand jury counsel misconduct affected the fairness and impartiality of the proceeding.

HRS § 612-59 provides:

Any indictment which is based upon a grand jury proceeding in which a violation of section 612-56 [(grand jury counsel; disqualification)], 612-57 [(grand jury counsel; duties)], or 612-58 [(grand jury proceedings)], has occurred may be subject to dismissal without prejudice by an appropriate state court in the exercise of its discretion. Motion for such dismissal may be made by either party or the court.

(Emphasis added.)

We note at the outset that grand jury counsel

misconduct — for example, incorrectly instructing the grand jury

on matters of law — could adversely affect the interests of the

State as well as those of the defendant.

Under the plain language of HRS § 612-59, if grand jury

counsel misconduct is shown, a court has discretion to dismiss

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the indictment without prejudice. Griffin, 126 Hawai#i at 52–53,

266 P.3d at 460–61. The court also has discretion to not dismiss

the indictment if, for example, it determines grand jury counsel

misconduct did not affect the "fairness or impartiality" of the

grand jury proceeding. See id.

Hawkes argues that the permissive "may" in HRS § 612-59

means an indictment may be dismissed with prejudice. We do not

agree. The phrase "may be subject to dismissal without

prejudice" means an indictment should not automatically be

dismissed if grand jury counsel misconduct is shown; rather the

court has discretion to dismiss the indictment if it determines

the misconduct affected the fairness or impartiality of the grand

jury proceeding by tending to induce action other than what

reasonable grand jurors would deem warranted based on the

evidence fairly presented to them. But the indictment need not

be dismissed if the court determines the misconduct did not

affect the fairness or impartiality of the proceeding.

"[I]t is generally presumed that the legislature acts

intentionally and purposely in the disparate inclusion or

exclusion of terms in its statutes." Maui Fire Cases, 155

Hawai#i at 428, 565 P.3d at 773. HRS § 612-59 does not say

"dismissal with or without prejudice," or simply "dismissal by an

appropriate state court." Because grand jury counsel misconduct

does not implicate the prosecution, and jeopardy has not

attached,3 dismissal without prejudice of a potentially defective

3 Article I, section 10 of the Hawai#i Constitution provides that no person shall be "subject for the same offense to be twice put in jeopardy[.]" "Attachment of jeopardy in a jury trial occurs when the jury is empaneled and sworn in, but in a bench trial . . . jeopardy attaches when the court begins to hear evidence." State v. Ellway, 158 Hawai #i 190, 196, 590 P.3d 319, 325 (2026).

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indictment is an appropriate remedy for both the State and the

defendant who is the subject of the grand jury proceeding.

B. HRS § 612-59 is consistent with HRS § 612-60.

Statutes that are in pari materia may be construed

together. Omiya, 142 Hawai#i at 450, 420 P.3d at 381. "Laws in

pari materia, or upon the same subject matter, shall be construed

with reference to each other. What is clear in one statute may

be called in aid to explain what is doubtful in another." HRS

§ 1-16 (2009).

Our reading of HRS § 612-59 is consistent with the

remedy provided by HRS § 612-60 (2016), which provides:

If the court finds that the grand jury counsel has provided the grand jury erroneous counsel or has acted improperly, the court may require that the grand jury be given the corrected advice or shall be advised as to improper action, and shall then continue the case.

HRS § 612-60 applies, and allows remedial action by the

court, if grand jury counsel misconduct comes to the court's

attention during the grand jury proceeding. HRS § 612-59 applies

if grand jury counsel misconduct is shown post-indictment. The

prosecution is not terminated under either statute.

C. The legislative history of HRS § 612-59 confirms that dismissal with prejudice is not an option.

HRS §§ 612-51 through -59 were enacted to implement

article I, section 11 of the Hawai#i Constitution. See 1980 Haw.

Sess. Laws Act 209, § 1 at 354. Hawai#i Constitution article I,

section 11 was proposed by the 1978 Constitutional Convention and

ratified by the voters on November 7, 1978. It provides:

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Whenever a grand jury is impaneled, there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought before it. Independent counsel shall be selected from among those persons licensed to practice law by the supreme court of the State and shall not be a public employee. The term and compensation for independent counsel shall be as provided by law.

The Constitutional Convention's Committee on Bill of

Rights, Suffrage and Elections explained:

The role of counsel will be to advise the grand jury and not the witness or the prosecutor. Until now the prosecutor has served as the legal adviser to the grand jury, but there seems to be a conflict between presenting evidence to a grand jury in the hope that they will return an indictment and being their legal advisor. Independent legal counsel will be available to advise the grand jury on any appropriate matter.

Stand. Comm. Rep. No. 69, in 1 Proceedings of the Constitutional

Convention of Hawai#i of 1978, at 673 (1980).

After Hawai#i Constitution article I, section 11 was

ratified, 1979 House Bill No. 95 was proposed as enabling

legislation. The conference committee reported: Your Committee's staff consulted the representative from the prosecutor's office, City and County of Honolulu, who was in attendance observing the conference, and was assured that matters pertaining to grand jury proceedings are handled by the courts as matters required to be addressed as pre-trial issues, and that as such, there would be no danger of violations of such provisions resulting in dismissal of an otherwise valid indictment which would be barred from re-indictment by the theory of "double jeopardy." Nonetheless, in abundance of caution, your Committee amended the former draft to require that such dismissal shall be "without prejudice."

Conf. Comm. Rep. No. 68, in 1979 Senate Journal, at 985, 1979

House Journal, at 1120.

1979 H.B. No. 95, H.D. 2, S.D. 2, C.D. 1 was passed by

the legislature but vetoed by the governor, who was concerned

about use of the undefined word "advise" to describe grand jury

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counsel's duties. Gov. Msg. No. 512, "Statement of Objections to

House Bill No. 95," in 1979 Senate Journal, at 898-99. It was

amended to address the governor's concerns over the previous bill

and reintroduced during the 1980 legislative session as House

Bill No. 2059-80. The governor had not expressed concern about

the "dismissal without prejudice" language, which remained in

H.B. No. 2059-80. H.B. No. 2059-80 was passed by the

legislature, and approved by the governor on June 6, 1980. 1980

Haw. Sess. Laws Act 209, at 357. HRS § 612-59 has not been

amended since. The legislative history confirms that dismissal

without prejudice was intended, and dismissal with prejudice was

not an option.

III. CONCLUSION

If a court dismisses an indictment under HRS § 612-59

because of grand jury counsel misconduct, the dismissal must be

without prejudice. The circuit court need not have considered a

dismissal with prejudice. The December 10, 2024 Order Granting

Motion to Dismiss Indictment is affirmed.

On the briefs: /s/ Keith K. Hiraoka Walter J. Rodby, Presiding Judge for Defendant-Appellant Beau Hawkes. /s/ Sonja M.P. McCullen Associate Judge Andrew H. Martin, Richard B. Rost, /s/ Kimberly T. Guidry Department of the Associate Judge Prosecuting Attorney, County of Maui for Plaintiff-Appellee State of Hawai#i.