Deangelo v. Souza

• Decision Date: 17 November 2022
• Docket Number: SCPW-22-0000607
• Citation: 152 Hawai‘i 55,520 P.3d 253
• Parties: Scott David DEANGELO, Petitioner, v. The Honorable Kevin A. SOUZA, Judge of the Circuit Court of the First Circuit, State of Hawai‘i, Respondent Judge. and State of Hawai‘i, Respondent.
• Court: Hawaii Supreme Court

152 Hawai‘i 55

520 P.3d 253

Scott David DEANGELO, Petitioner,

v. The Honorable Kevin A. SOUZA, Judge of the Circuit Court of the First Circuit, State of Hawai‘i, Respondent Judge.andState of Hawai‘i, Respondent.

SCPW-22-0000607

Supreme Court of Hawai‘i.

November 17, 2022

Jon N. Ikenaga for petitioner

Anna Ishikawa (Loren J. Thomas, Honolulu, and Steven S. Tsushima on the briefs) for respondent

RECKTENWALD, C.J., NAKAYAMA, MCKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY EDDINS, J.

This petition for an extraordinary writ challenges the constitutionality of Hawai‘i Rules of Penal Procedure (HRPP) Rule 12(g).

Rule 12(g) allows a judge who dismisses a case based on a "defect in the institution of the prosecution or in the charge" to order the defendant held for a "specified time" while the State re-files charges. Up until recently, courts have rarely invoked Rule 12(g). But the present wave of dismissals in cases where the State did not obtain an indictment from a grand jury has prompted a surge in the rule's use.

Scott Deangelo is the defendant in one such case. After the court dismissed charges against him, it ordered under Rule 12(g) that Deangelo remain in custody for 90 days, while the State sought a grand jury indictment. Deangelo argues that Rule 12(g) violates the Fourth Amendment of the United States Constitution, which protects against unreasonable seizures, and Hawai‘i Revised Statutes (HRS) § 803-9(5) (Supp. 2021), which requires an "arrested person" to be taken "before a qualified magistrate for examination" within 48 hours of arrest. While Deangelo's case has been mooted by his indictment eleven days later, his challenge to Rule 12(g) presents an issue of public importance.

We hold that, when probable cause has been found after a preliminary hearing but the case is dismissed without prejudice due to a defect in the institution of the prosecution, Rule 12(g) permits a court to hold a defendant in custody or continue bail for a specified time that is reasonable under the circumstances.

I.

The police arrested Defendant-Petitioner Scott Deangelo without a warrant on February 8, 2022 for second-degree murder. The next day, the district court made a judicial determination of probable cause for the extended restraint of liberty and set bail at $500,000. On February 17, the court confirmed its probable cause and bail findings. After a two-day preliminary hearing on February 25, a different district court judge found probable cause to believe that Deangelo committed the charged felonies and sent the case to circuit court.

On March 10, Deangelo was arraigned without a grand jury indictment. The circuit court confirmed bail at $500,000. In response to the State's motion to either hold Deangelo without bail or increase bail, the circuit court ordered on June 6 that Deangelo be held without bail. The court based its order on the seriousness of Deangelo's charged crimes and its finding that Deangelo posed a danger to the community and was a flight risk.

On August 25, Deangelo moved to dismiss the case because he had not been indicted in accordance with HRS § 801-1 (2014). See State v. Obrero, 151 Hawai‘i 472, 517 P.3d 755 (2022). The State conceded the motion, but requested that the court dismiss the case without prejudice. Citing Rule 12(g), the State also asked the court to hold Deangelo in custody without bail.

On October 10, the circuit court dismissed Deangelo's case without prejudice and denied all pending motions as moot. But under HRPP Rule 12(g), the court ordered that Deangelo remain in custody without bail for 90 days. In the order, the circuit court made detailed factual findings. These findings reviewed the impact of Covid-19 on grand jury proceedings over the past two and a half years. The court observed that for fourteen of the last thirty months, grand juries were unavailable in the First Circuit. The court pointed out that when the State charged Deangelo via complaint, grand jury proceedings were not taking place in the First Circuit. In light of this, the court's previous no-bail finding, and based on "the offenses alleged, the possible punishment upon conviction, Defendant's financial ability to afford bail, the serious risk that Defendant will flee, and the serious risk that Defendant poses a danger to any person or the community," the court decided to hold Deangelo in custody.

By October 16, Deangelo had not yet been indicted. He filed a petition for an extraordinary writ to this court. His continued custody under 12(g) violated the Hawai‘i and United States Constitutions, as well as HRS § 803-9(5), he argued. Deangelo wanted to be released.

Five days later, on October 21, a grand jury indicted Deangelo on three counts — murder in the second degree, place to keep a pistol or revolver, and place to keep ammunition. Eleven days had elapsed since the case's dismissal.

The parties disagree on whether Deangelo's indictment has mooted the court's 12(g) order holding him in custody for up to 90 days. But both urge us to review the broader issue of Rule 12(g) ’s validity, since it is an issue of public interest that may repeat while evading meaningful judicial review. See Moana v. Wong, 141 Hawai‘i 100, 115, 405 P.3d 536, 551 (2017). Because we agree that the 12(g) issue should be resolved promptly, we assume the mootness of the order holding Deangelo but go on to the merits of Deangelo's statutory and constitutional challenges to Rule 12(g) itself.

HRPP Rule 12(g)¹ reads:

If the court grants a motion based on a defect in the institution of the prosecution or in the charge, it may also order that the defendant be held in custody or that the defendant's bail be continued for a specified time pending the filing of a new charge. Nothing in this rule shall be deemed to affect provisions of any statute relating to periods of limitations.

Deangelo contends that Rule 12(g), on its face and as applied to him, violates HRS § 803-9(5) and the Fourth Amendment of the United States Constitution.²

Deangelo argues that when the court dismissed his case, all proceedings against him terminated, including the prior judicial determination of probable cause to hold him. So he was like a person arrested without a warrant. And this person has rights. First, they have a statutory right under HRS § 803-9(5) to be charged or brought before a district court judge for a probable cause determination within 48 hours. Second, they have a Fourth Amendment and Hawai‘i constitutional right to a probable cause finding made before arrest or promptly after it, where promptly means within 48 hours. Gerstein v. Pugh, 420 U.S. 103, 126, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ; County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ; Constitution of the State of Hawai‘i article I, section 7. By empowering judges to hold people in custody after dismissal for a specified period of time, Deangelo argues that Rule 12(g) on its face violates both HRS § 803-9(5) and his constitutional rights against unreasonable seizure. Since a court rule cannot abridge substantive rights, Rule 12(g) "must be stricken," or if upheld, must be capped at 48 hours.

Not so, says the State. It argues that a person against whom a judicial determination of probable cause has already been made is not in the same position as a person who has just been arrested without that finding. The plain language of HRS § 803-9(5) governs only a person's "initial appearance" in court after an arrest and has no relevance whatsoever to Rule 12(g). As to Deangelo's constitutional claims, the State maintains that all required constitutional procedures were followed — probable cause to hold Deangelo was found within 48 hours and confirmed after a preliminary hearing.

II.

The equivalent of Rule 12(g) has existed in federal law since 1944 and as of today has been adopted by at least 26 states. The rule also has roots in the common law. See Latson v. State, 146 A.2d 597, 600 (Del. 1958) (observing that the rule "embod[ies] the practice theretofore existing that on the dismissal of an indictment the defendant is not automatically entitled to discharge, and the court may hold him in custody.") Yet, courts seldom invoke 12(g). See U.S. v. Powers, 168 F.3d 943, 949 (7th Cir. 1999) (commenting on the "dearth of reported cases").

In Dawson v. Lanham, we suggested in passing that the trial court should have used this rule to hold the defendants in custody after the court dismissed their indictment. 53 Haw. 76, 83, 488 P.2d 329 (1971). In his dissent, Justice Abe pointed out that Rule 12(g) is valid only to the extent that it does not abridge substantive rights, a question that the Dawson Court did not consider. Id. at 87 n.4, 488 P.2d at 336 n.4.

Fifty years later, we take up this question.

The Fourth Amendment protects against "unreasonable ... seizures." U.S. Const. Am. IV. It "requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." Gerstein, 420 U.S. at 114, 95 S.Ct. 854. That judicial determination, if made after arrest, must be made promptly. Id. at 125-26, 95 S.Ct. 854. The Supreme Court has held that determinations made within 48 hours of arrest will generally satisfy this requirement. McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. HRS § 803-9(5) codifies this rule in Hawai‘i law. Failure to promptly determine probable cause or a defect in the probable cause determination itself may render any subsequent custody unreasonable. See Manuel v. City of Joliet, Ill., 580 U.S. 357, 137 S. Ct. 911, 918-19, 197 L.Ed.2d 312 (2017) (holding that probable cause obtained based on false police statements renders a seizure unreasonable.)

Here, no one disputes that sufficient probable cause to arrest and hold Deangelo was found. Also, through a preliminary hearing a judge determined that probable cause existed to believe Deangelo had committed the dismissed charges. The constitutional question turns, then, on whether there...