State v. Visintin

414 P.3d 178

STATE of Hawai‘i, Plaintiff-Appellee,

v.Shawn D. VISINTIN, Defendant-Appellant

NO. CAAP-14-0000391

Intermediate Court of Appeals of Hawai‘i.

FEBRUARY 20, 2018

On the briefs:

Daniel G. Hempey, Lihue, for Defendant-Appellant.

Tracy Murakami, Deputy Prosecuting Attorney, Office of the Prosecuting Attorney, for Plaintiff-Appellee.

OPINION OF THE COURT BY GINOZA. J.

Defendant-Appellant Shawn Daniel Visintin (Visintin ) appeals from his conviction for the offense of Place to Keep Pistol or Revolver, in violation of Hawai‘i Revised Statutes (HRS ) § 134-25 (2011), in the Circuit Court of the Fifth Circuit (circuit court ). Visintin was convicted pursuant to a conditional no contest plea, which allowed him to pursue this appeal.¹

On August 7, 2012, Visintin was arrested for the offense of Place to Keep Pistol, and on the same date, he secured a bond for bail that had been set at $10,000. Visintin was issued a "Bail/Bond Receipt, Acknowledgment, and Notice to Appear" (BBRA ), which stated he was to appear at the District Court of the Fifth Circuit (district court ) on September 5, 2012. As of September 5, 2012, Plaintiff-Appellee State of Hawai‘i (State ) had not filed any charge against Visintin and thus, on that date, the State contends that the district court discharged Visintin's bail bond as part of its "calendar call" procedure. Visintin was not present at the September 5, 2012 proceeding and the record does not reflect any documents discharging Visintin's bail bond or that he was notified that his bail bond had been discharged.

Almost nine months after Visintin's arrest and the posting of his bail bond, and after he had returned to his home in Montana, the State issued an Indictment charging him with the offenses of Place to Keep Pistol or Revolver, in violation of HRS § 134-25 (2011) (Count 1 ), and Unregistered Firearm, in violation of HRS §§ 134-3 (a) (2011) and 134-17 (b) (2011) (Count 2 ). A bench warrant was also issued for Visintin's arrest.

After being arrested in Montana pursuant to a fugitive complaint but then being released, Visintin voluntarily returned to Hawai‘i for arraignment on the charges. He subsequently filed a "Motion to Suppress Evidence Based on Illegal Stop, Illegal Detention, Illegal Interrogation, Illegal Search, and Illegal Arrest" (Motion to Suppress ). He also filed a "Motion to Dismiss Based on Rule 48, Speedy Trial, Right to Bail and Due Process" (Motion to Dismiss ), alleging that his right to a speedy trial, right against excessive bail, and due process rights had been violated. The circuit court denied both the Motion to Suppress and the Motion to Dismiss.

Visintin subsequently entered a conditional plea under which he pled no contest to the Place to Keep Pistol or Revolver charge, and the Unregistered Firearm charge was dismissed. Under the conditional plea, Visintin was allowed to appeal the denial of his motions.

On appeal, Visintin argues that the circuit court erred by:

(1) denying his Motion to Dismiss because: (a) the delay in bringing him to trial after his arrest and setting of bail violated his right to a speedy trial under Hawai‘i Rules of Penal Procedure (HRPP ) Rule 48 ; (b) his right to a speedy trial under the Sixth Amendment to the United States Constitution or article I, section 14 of the Hawai‘i Constitution was violated; and (c) his right against excessive bail was violated; and

(2) denying his suppression motion because the arresting officer lacked reasonable suspicion to detain him and request his identification.

We hold that under HRPP Rule 48, the six-month time period for commencing Visintin's trial began to run when he was arrested and bail was set on August 7, 2012. Although the State contends that Visintin's bail bond was discharged pursuant to the calendar call procedure such that the time from the bail bond discharge until filing of the Indictment should be excluded, the record does not show that Visintin was notified that his bail bond was discharged. Given the circumstances in this case, we conclude that the time requirement under HRPP Rule 48 was exceeded. However, we conclude that Visintin's constitutional speedy trial rights were not violated, and that his demand for dismissal based on his claim of excessive bail is unwarranted.

We further hold that the arresting officer had reasonable suspicion at the time he initially stopped Visintin, and the officer's request for Visintin's identification was proper. Thus, the circuit court properly denied Visintin's Motion to Suppress.

The case is remanded to the circuit court for dismissal under HRPP Rule 48. On remand, the circuit court must determine whether to dismiss with or without prejudice, in the circuit court's discretion.

I. Background

A. Events on August 7, 2012 and Visintin's Arrest

On August 7, 2012, Officer Brian Silva (Officer Silva ) was on duty in his patrol car driving southbound on Kuhio Highway, entering the Kawaihau District of Kaua‘i. Officer Silva stated that there had been "a lot of calls of burglaries and criminal activity" in the area in which he was patrolling prior to that date, but he could not name any specific incidents and was not responding to any report of criminal activity in progress at that time.

At approximately 2:40 AM, as he approached an institution known as the Friendship House,² Officer Silva "saw a figure of a person running across the street from the ocean side ... into the area of the entrance into the Friendship House." Visintin was the individual in question. Officer Silva turned on his vehicle's spotlight and began to turn into the driveway of the Friendship House where he had seen Visintin running. Officer Silva described his spotlight as "very bright." Using his spotlight, Officer Silva saw Visintin "lowered into the bushes" next to the driveway. Officer Silva stated that he wanted to see what Visintin was doing "hiding in the bushes" and that he "obviously was trespassing" by doing so. Officer Silva then activated his patrol car's blue cruise lights; Officer Silva estimated that there was "[m]aybe a second" between the time he turned on his spotlight and the time he activated his cruise lights.

At the time he activated his spotlight, Officer Silva had determined that he wanted to "check it out," see what was going on, and request identification. Officer Silva stated that the recent burglaries and the fact that the Friendship House appeared to be closed factored into his decision to stop and request identification from Visintin, but that he still would have checked it out, even in the absence of the burglary reports. Additionally, Officer Silva testified that the fact that Visintin ran across the road "alarmed [him] a little bit more than a regular person[,]" but that he still would have stopped Visintin, even if he had walked across the road. Officer Silva had not heard of Visintin prior to their encounter on August 7, 2012, had no warrant to arrest or search him, and had no report that Visintin or anyone matching his description had engaged in any illegal activity.

After turning on his cruise lights, Officer Silva immediately exited his vehicle and ordered Visintin to come out of the bushes. Visintin cooperated. As Visintin approached him, Officer Silva noted that Visintin was breathing heavily, sweating a lot, and that he could smell alcohol coming from Visintin's facial area. Officer Silva took these considerations into account when approaching Visintin.

Officer Silva then requested identification from Visintin. Officer Silva agreed that one of the things he intended to do with Visintin's identification was to run a warrant check. Upon Officer Silva's request for identification, Visintin reached into his wallet and produced a Montana driver's license. While Visintin was getting his driver's license, Officer Silva observed a concealed weapons permit underneath the clear plastic in the wallet. This caused Officer Silva to suspect that Visintin possibly had a firearm on his person, and Officer Silva asked Visintin whether he had any weapons or "anything that might hurt me[.]" Visintin responded that he had a handgun, and Officer Silva conducted a pat down and found an unloaded Rock Island semi-automatic .45 caliber handgun in the waistband of Visintin's pants. Even if Visintin had not responded to his question, Officer Silva stated he "still would have patted him down for officer safety." After retrieving the handgun, Officer Silva advised Visintin that he was under arrest for "Place to Keep" and advised him of his constitutional rights.³

B. Events After Visintin's Arrest

Incident to his arrest on August 7, 2012, Visintin's bail was set at $10,000. He paid approximately $1,000 for a bail bond that was posted the same day as his arrest. A BBRA signed by Visintin on August 7, 2012, indicated a charge for "Place to Keep Pistol" and referenced an arrest report number. The BBRA also directed Visintin to appear in district court on September 5, 2012.

On August 31, 2012, Visintin's counsel inquired via email with the assigned Deputy Prosecuting Attorney (DPA ) as to whether a complaint would be filed and whether the matter would proceed on September 5, 2012. The DPA responded by email that her office had "not received the reports, so therefore no Complaint has been filed." As asserted by Visintin in his Motion to Dismiss,⁴ and not disputed by the State,

By the September 5, 2012 court date ... the [State] had not filed a Complaint or any other document related to the case.

[A]s of September 5, 2012 [,] the State had not charged [Visintin] with any crime. The State did not file any sort of Motion to modify [Visintin's] bail status. The State provided no notice to [Visintin] that the bail bond he posted would or would not be discharged. [Visintin] was given no notice that there would be any change to his bail status. [Visintin] was not given an opportunity to be heard as to whether his bail should be changed, or his speedy trial rights derailed, or whether any ensuing delay

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