State v. Hernane

• Citation: 454 P.3d 385
• Decision Date: 12 December 2019
• Docket Number: SCWC-18-0000350
• Parties: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Charly HERNANE, also known as Charlie Hernane, Petitioner/Defendant-Appellant.
• Court: Supreme Court of Hawai'i

454 P.3d 385

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.Charly HERNANE, also known as Charlie Hernane, Petitioner/Defendant-Appellant.

SCWC-18-0000350

Supreme Court of Hawai‘i.

DECEMBER 12, 2019

Seth Patek (Jon N. Ikenaga with him on the briefs), for petitioner

Stephen K. Tsushima, Honolulu, for respondent

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE AYABE IN PLACE OF POLLACK, J., RECUSED

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

We hold that the time period a defendant continues to be held in State custody in a mainland prison after his conviction is set aside and a new trial ordered is not excludable under Hawai‘i Rules of Penal Procedure ("HRPP") Rule 48(c)(5) (2000)¹ on the grounds the time period was "caused by the ... unavailability of the defendant." The Circuit Court of the First Circuit² therefore erred in denying Defendant Charly Hernane's ("Hernane") motion to dismiss indictment for violation of HRPP Rule 48. As Hernane's conviction is set aside, we therefore need not address Hernane's second question on certiorari as to whether the circuit court's responses to jury communications constituted impermissible Allen charges. See State v. Villeza, 72 Haw. 327, 334, 817 P.2d 1054, 1058 (1991) (quoting Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (explaining that an Allen charge directs members in the minority of a deadlocked jury to reconsider their views in light of the views of the majority)).

Based on the Rule 48 violation, however, which requires dismissal of the charge against Hernane, we vacate the Intermediate Court of Appeal's ("ICA") January 11, 2016 judgment on appeal and the circuit court's October 22, 2013 judgment of conviction and sentence and remand this case to the circuit court for further proceedings consistent with this opinion.³

II. Background

A. Factual and Procedural Background Preceding Trial on Remand⁴

On May 18, 2011, a grand jury charged Hernane by indictment with murder in the second degree of his mother, Teresita Dumalan Hernane ("mother"), in violation of Hawai‘i Revised Statutes ("HRS") §§ 707-701.5 (Supp. 1986)⁵ and 706-656 (Supp. 1996).⁶ On May 11, 2011, police were called to the mother's home after she was found dead with cuts and wounds to her head and neck. A knife was found next to her body. Hernane was located shortly thereafter in a nearby park with blood on his shirt and shorts.

Hernane was initially convicted by a jury of murder in the second degree and sentenced to a term of life imprisonment with the possibility of parole. A judgment of conviction and sentence was entered on October 22, 2013. Hernane appealed from the conviction and sentence to the ICA alleging prosecutorial misconduct. On January 11, 2016, the ICA entered a judgment on appeal pursuant to its November 30, 2015 memorandum opinion, State v. Hernane, CAAP-13-0005212, 362 P.3d 805 (App. Nov. 30, 2015) (mem.), vacating the circuit court's October 22, 2013 judgment of conviction and remanding Hernane's case for a new trial. The State filed an application for writ of certiorari to this court.

Meanwhile, on February 9, 2016, the circuit court held a hearing to set the retrial week. Defense counsel explained that Hernane was not present because he was "in prison in Arizona."⁷ The State, through a deputy prosecuting attorney, informed the circuit court that it had filed an application for writ of certiorari, and the circuit court stayed the proceedings.

On March 23, 2016, this court rejected certiorari. This triggered the 180-day time period pursuant to HRPP Rule 48 for Hernane's trial to commence. See HRPP Rule 48.⁸

B. Remanded Circuit Court Proceedings

On April 12, 2016, another status conference was held, at which the parties again discussed that Hernane was being held in Arizona. On April 13, 2016, the deputy prosecuting attorney instructed paralegals at the Honolulu Prosecutor's Office to contact the Department of Public Safety to arrange for Hernane's return.

On May 3, 2016, the circuit court held another hearing to set Hernane's retrial. Hernane was not present; defense counsel stated that Hernane "had not been transported from prison by airplane." The State represented that it had made a request to the Department of Public Safety ("DPS") to have Hernane returned to Hawai‘i, and had been informed that he would be returned in July of 2016, but that the exact date was not disclosed for security reasons.

The State asked the circuit court to take under advisement any ruling on Rule 48 and stated that March 23, 2016 was "conceptually the restart date for purposes of Rule 48." Defense counsel requested that trial not be set unless Hernane was present. Over defense counsel's objection, the circuit court set a trial date for August 1, 2016 and scheduled a trial call for July 19, 2016. The circuit court stated it would "take under advisement the determination of Rule 48 excludability, if any, until such time as the issue is raised."

On July 13, 2016, based on the State's request, the trial call was continued to July 22, 2016.

Hernane was returned to Hawai‘i on July 19, 2016. One hundred eighteen days had passed since certiorari had been rejected on March 23, 2016.

On July 22, 2016, Hernane's counsel made an oral motion to continue, and trial was continued to the week of October 31, 2016. Thereafter, Hernane filed multiple continuances as well as motions regarding his fitness to proceed; he was not determined fit to proceed until December 7, 2017. Hernane's retrial was then scheduled for February 5, 2018.

On February 5, 2018, the day of his scheduled jury trial, Hernane filed a motion to dismiss indictment for violation of HRPP Rule 48 (" Rule 48 Motion"). Hernane maintained that since March 23, 2016, a total of 684 days had passed, of which only the 503 days between July 22, 2016 and December 7, 2017 qualified as excludable time periods for the purposes of HRPP Rule 48(c)(1) and (c)(3) ; Hernane conceded as excludable his requested continuances as well as proceedings relating to his fitness to stand trial.⁹ Hernane alleged, however, that as of February 5, 2018, 181 days had elapsed since the rejection of the application for writ of certiorari on March 23, 2016 that were not excludable pursuant to HRPP Rule 48, requiring dismissal due to a violation of HRPP Rule 48.

The State opposed the Rule 48 Motion and asserted that because Hernane was being held pre-trial in Arizona, Hernane "must be deemed unavailable from May 3, 2016 to July 22, 2016."

A hearing on the Rule 48 Motion was held that day, February 5, 2018. The circuit court took judicial notice of the records and files in the case to calculate the time elapsed between the date certiorari was rejected and the date Hernane's trial commenced, which would be later that same day, February 5, 2018. The State entered four exhibits into evidence, which contained a series of emails between the deputy prosecuting attorney and paralegals at the Honolulu prosecutor's officer concerning Hernane's return to Hawai‘i.

The State called one witness, a paralegal at the Honolulu prosecutor's office, to testify about the procedure used by the prosecutor's office to return a defendant housed in a mainland facility to Hawai‘i for trial. The paralegal explained,

[w]hen we're informed that the defendant is being housed in a mainland facility, we contact the Department of Public Safety. Our contact is Howard Komori ["Komori"]. He handles—he's the administrator for inmates who are housed in a mainland facility.

Q. [Deputy Prosecuting Attorney] And could you explain for us in greater detail what the request is that you submit to Mr. Komori?

A. [Paralegal] It's—we usually either call or email him with our request for a specific inmate to be brought back to the state, and we let him know that he needs to be brought back for trial[.]

The paralegal further stated that on April 13, 2016, she received an email from the deputy prosecuting attorney requesting that she contact DPS to have Hernane brought back to the state for trial. The paralegal further explained that thereafter she contacted Komori and was informed that Hernane would be brought back in July of 2016. The paralegal also testified that on April 26, 2016, she sent another email updating the deputy prosecuting attorney that Hernane was still scheduled to return to Hawai‘i in July 2016. She testified that DPS decides when a defendant is brought back, and to her knowledge, the prosecutor's office does not have any say as to when someone is brought back.

The paralegal also testified that, on June 22, 2016, the deputy prosecuting attorney requested that she follow-up with Komori regarding Hernane's return, which the paralegal did, and she was informed that he would be brought back on July 19, 2016. She testified that, knowing that a trial call was scheduled for July 19, 2016, she called the court to move the trial call to after the 19th and was given two dates, the 21st or 22nd of July. The paralegal contacted Hernane's counsel after obtaining the new July 22nd date. On cross-examination, she testified that it was her understanding that Hernane was being brought back on the first regularly scheduled available flight back to Hawai‘i.

Hernane then argued that he was not "unavailable" for purposes of HRPP Rule 48 for the period during which he was "housed on the mainland" because he "was in Hawai‘i State custody." Alternatively, Hernane argued that even if he was "unavailable," the State did not show it exercised due diligence to bring him back promptly.

The State argued that it had exercised due diligence in securing Hernane's presence for trial, and thus, Hernane's Rule 48 Motion should be denied pursuant to State v. Jackson, 8 Haw. App. 624, 817 P.2d 130 (1991). The State argued "it was only on April 12th, 2016, when I [the deputy prosecuting attorney] became aware" at an informal status conference that Hernane was being held in Arizona.¹⁰ The State further maintained that the "Hon...