State v. Arroyo

151 Hawai‘i 327

511 P.3d 826 (Table)

STATE of Hawai‘i, Plaintiff-Appellant,

v.Rafael ARROYO, Defendant-Appellee

NO. CAAP-18-0000875

Intermediate Court of Appeals of Hawai‘i.

June 28, 2022

On the briefs:

Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellant.

John F. Parker, for Defendant-Appellee.

(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

Plaintiff-Appellant State of Hawai‘I (State ) appeals from the "Court's Findings of Fact, Conclusions of Law and Order Granting [Defendant-Appellee Rafael Arroyo's (Arroyo )] Supplemental Motion to Dismiss Indictment" (FOF/COL/Order ), entered on October 11, 2018, by the Circuit Court of the Second Circuit (Circuit Court ).¹ Pursuant to the FOF/COL/Order, the Circuit Court dismissed the three-count indictment against Arroyo because the indictment contained a "made[-]up date" for the events at issue, and because impermissible and incompetent hearsay evidence presented to the grand jury may have improperly influenced grand jurors. As to Count 2, for Burglary in the First Degree in violation of HRS § 708-810(1)(c) (2014) (Burglary One ), the court concluded that Arroyo suffered prejudice as a result of the deputy prosecuting attorney's (DPA ) circumvention of a prior court order and/or instruction. Accordingly, the Circuit Court dismissed Count 2 with prejudice and dismissed Count 1, for Kidnapping in violation of HRS § 707-720(1)(d) and/or (e) (2014), and Count 3, for Terroristic Threatening in the First Degree in violation of HRS § 707-716(1)(e) (2014), without prejudice.

On appeal, the State contends that the Circuit Court erred in dismissing: (1) the indictment, "based on the date of offenses charged"; and (2) the Burglary One charge, "based on the testimony of the prosecution's investigator." (Formatting altered.)

After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve the State's contentions as follows and affirm.

(1) The State first contends that the Circuit Court erred in dismissing the indictment "based on the date of offenses charged." The State asserts that "[t]his error is reflected in [FOF] 17 and [COLs] 5, 8, and 9."

FOFs 16 and 17 state:

16. The State conceded that "March 15, 2015" is a made-up date for purposes of the allegations herein.

17. By making up said date, the [DPA] has effectively prevented ... Arroyo from asserting any legitimate alibi defense under the circumstances, as well as other possible date-related defenses.

COLs 5, 8, and 9 state:

5. Relative to the Grand Jury proceedings on or about July 24, 2017, [the DPA] concedes, and the Court concludes that the Indictment contains a made up date which is not supported by the testimony and/or evidence at the grand jury proceeding. The Court further concludes as a matter of law that this fabrication was made despite, and notwithstanding prior cautions from the Court, [regarding] the issue of the date(s) of these alleged offenses.

....

8. Based on the totality of circumstances and the cumulative effect of the [DPA's] presentation of improper or incompetent evidence at the Grand Jury proceeding of July 24, 2017, the Court concludes as a matter of law that Count 2 shall be dismissed WITH PREJUDICE.

9. Based on the totality of circumstances and the cumulative effect of the [DPA's] presentation of improper and/or incompetent evidence at the Grand Jury proceeding of July 24, 2017, the Court HEREBY DISMISSES Counts l & 3 herein WITHOUT PREJUDICE.

"A trial court's ruling on a motion to dismiss an indictment is reviewed for an abuse of discretion." State v. Mendonca, 68 Haw. 280, 283, 711 P.2d 731, 734 (1985) (citing State v. Corpuz, 67 Haw. 438, 440, 690 P.2d 282, 284 (1984) ). At the same time, "[w]e are mindful that dismissal of an indictment is required only in flagrant cases in which the grand jury has been overreached or deceived in some significant way." State v. Wong, 97 Hawai‘i 512, 526, 40 P.3d 914, 928 (2002) (citing Mendonca, 68 Haw. at 283, 711 P.2d at 734 ; State v. Pulawa, 62 Haw. 209, 215, 614 P.2d 373, 377 (1980) ).

The State acknowledged below that the date of the events alleged in the indictment, "March 15, 2015, is a made up date; it is an estimate." On appeal, the State explains that the " ‘made-up date’ [was] used in response to the prior dismissal of the charges by the trial court when the date of the offenses was charged as a range of dates." The State also acknowledges that the complaining witness (CW ) "did not specifically testify that the incident occurred on March 15, 2015." The State argues, however, that "when placed in context of CW's acknowledgment that the incident occurred some time in mid-March, the date of the offenses charged as ‘on or about the 15th day of March, 2015’ was not a misrepresentation." In support of its argument, the State points out that the date of the three charged offenses is not a material element of those offenses.

The State is correct that "[i]n general, the precise time and date of the commission of an offense is not regarded as a material element." State v. Arceo, 84 Hawai‘i 1, 13, 928 P.2d 843, 855 (1996). However, neither Arceo nor subsequent cases construing Arceo involved a date designated in an indictment which the State subsequently described as a "made up date." See, e.g., State v. Kealoha, 95 Hawai‘i 365, 379, 22 P.3d 1012, 1026 (App. 2000) (ruling that the circuit court was not wrong in denying the defendant's motion for acquittal where "[t]he instant indictment designated ‘on or about June 13, 1998’ as the time span during which manufacturing occurred [and] [the codefendant's] observations for three weeks prior to the search warrant execution, if believed, were sufficient to prove [the] [d]efendant was engaged in manufacturing methamphetamine on or about June 13, 1998").

Here, the Circuit Court did not base the dismissal of the indictment on the State's failure to allege the precise date of the alleged offenses. Instead, as reflected in COL 5, the Circuit Court based the dismissal in part on the DPA's concession, and the court's conclusion, that "the Indictment contains a made up date which is not supported by the testimony and/or evidence at the grand jury proceeding." The court further concluded that "this fabrication was made despite, and notwithstanding prior cautions from the Court, [regarding] the issue of the date(s) of these alleged offenses." The State alleges error with respect to FOF 17 and COLs 5, 8, and 9, but does not present any specific argument as to why the challenged FOF is clearly erroneous or the COLs are wrong. See Hawai‘i Rules of Appellate Procedure (HRAP ) Rule 28(b)(7) ("Points not argued may be deemed waived."). The State's argument that the date is not a material element of the charged offenses sidesteps the court's conclusions that the "made up date" was not supported by the evidence at the grand jury proceeding and was alleged despite prior cautions from the court.

The Hawai‘i Supreme Court has explained that "[t]he circuit court has supervisory power over grand jury proceedings to insure the integrity of the grand jury process and the proper administration of justice." Wong, 97 Hawai‘i at 523, 40 P.3d at 925 (citing In re Moe, 62 Haw. 613, 616, 617 P.2d 1222, 1224 (1980) ); see also State v. Joao, 53 Haw. 226, 230, 491 P.2d 1089, 1092 (1971) ("Where a defendant's substantial constitutional right to a fair and impartial grand jury proceeding is prejudiced, a quashing of the indictment emanating therefrom is an appropriate remedy."). On this record, we conclude that the Circuit Court did not abuse its discretion in dismissing the indictment based in part on the fact that it contained a "made-up date" for the events at issue. We further conclude that FOF 17 is not clearly erroneous and COLS 5, 8, and 9 are not wrong.

(2) The State next contends that the Circuit Court erred in dismissing the Burglary One charge based on the testimony of the prosecution's investigator. The State asserts that "[t]his error is reflected in FOF[s] 19, 20, 21, and 22, and COL[s] 6, 7, and 8."

FOFs 18 through 22 state:

18. Also at the grand jury proceeding on the matter, the [DPA] presented one other witness to support the Indictment ..., Office of the Prosecuting Attorney Investigator David Olsten [(Olsten )], who testified substantively about a court order allegedly prohibiting ... Arroyo from a particular property.

19. Investigator Olsten based his testimony on his purported reading of court minutes.

20. In the instant case, the Court finds Olsten incompetent to have testified to the contents of a court order; that court minutes cannot substitute for a court order pertaining to bail; that Olsten's testimony unfairly prejudiced [Arroyo] by misleading Grand Jurors that they could base their findings on court minutes; that the dismissal of the prior case did not allow the State to ignore the Court's direction to the parties to meet and confer concerning the Court taking judicial notice of the matter.

21. Given the Court's particular attention to this issue even prior to trial and re-indictment in these matters, the Court finds that, as it relates to Count 2 (Burglary [One]), [Arroyo] suffered prejudice by the [DPA]’s failure to meet and confer with defense counsel as ordered by the Court on or about September 15, 2016.

22. The prejudice arises because by using the Grand Jury to find probable cause and to return an Indictment, the State chose a method that by its very nature avoided Court oversight on an issue that had already been reviewed and discussed.

COLs 6 through 8 state:

6. Further relative to the Grand Jury proceedings on or about July 24, 2017, the Court concludes as a matter of law that [the DPA] presented impermissible and incompetent hearsay evidence through the testimony of Investigator ... Olsten. The Court concludes that the improper testimony may have

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