State v. Borge, CAAP-21-0000364

CourtCourt of Appeals of Hawai'i
PartiesSTATE OF HAWAI'I, Plaintiff-Appellee, v. TROY D. BORGE, JR., Defendant-Appellant.
Docket NumberCAAP-21-0000364
Decision Date14 September 2022

STATE OF HAWAI'I, Plaintiff-Appellee,

TROY D. BORGE, JR., Defendant-Appellant.

No. CAAP-21-0000364

Intermediate Court of Appeals of Hawaii

September 14, 2022



Hayden Aluli, for Defendant-Appellant.

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

Leonard, Presiding Judge, Nakasone and McCullen, JJ.


Defendant-Appellant Troy D. Borge, Jr. (Borge) appeals from the Circuit Court of the Second Circuit's[1] June 7, 2021 Judgment; Conviction and Sentence (Judgment) convicting him of Assault in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-710 (2014).[2]

On appeal, Borge argues that the circuit court "reversibly erred in: 1) denying his Motion to Dismiss Indictment; and 2) ordering restitution to be paid to the


complainant [(CW)] for his medical care paid by his insurance provider."

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve this appeal as follows, and affirm.

(1) Borge's first point of error alleges the circuit court erred when it denied his July 17, 2020 Motion to Dismiss Indictment (Motion to Dismiss). Borge argues several reasons why the indictment was invalid and should have been dismissed with prejudice. "A [trial] court's ruling on a motion to dismiss an indictment is reviewed for an abuse of discretion." State v. Akau, 118 Hawai'i 44, 51, 185 P.3d 229, 236 (2008) (citation and internal quotation marks omitted). As discussed below, the circuit court did not abuse its discretion when it denied his Motion to Dismiss.

(a) According to Borge, the indictment in the underlying case (2CPC-20-0000288) should have been dismissed with prejudice because, pursuant to HRS § 701-110(2) (2014), the district court's no probable cause determination in State v. Borge 2DCW-19-0002338 (2DCW-19-0002338), was a final order that "effectively terminated the prosecution for [Attempted Murder in the Second Degree]."

HRS § 701-110(2) provides,

[w]hen a prosecution is for an offense under the same statutory provision and is based on the same facts as a former prosecution, it is barred by the former prosecution
[if the] former prosecution was terminated, after the information had been filed or the indictment found, by a
final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense

(Formatting altered.)

Here, the district court's no probable cause determination in 2DCW-19-0002338 was not a final order because a final order is "an order ending the proceeding, leaving nothing further to be accomplished." Casumpang v. ILWU, Local 142, 91 Hawai'i 425, 426, 984 P.2d 1251, 1252 (1999). In 2DCW-19-0002338, after the preliminary hearing, the district court found no probable cause for Attempted Murder in the Second Degree. However, it committed the case to the circuit court for further proceedings on the probable cause determination for Assault in the First Degree. See Moana v. Wong, 141 Hawai'i 100, 106-07, 405 P.3d 536, 542-43 (2017) (explaining that preliminary hearings are often viewed as a screening device that determines whether the facts alleged justify detaining a defendant as he awaits trial).

The committal order made no judgment on the merits of the case, did not bear on Borge's guilt or innocence, and did not end the litigation by fully deciding all rights and liabilities of all parties, leaving nothing further to be adjudicated. See Casumpang, 91 Hawai'i at 426, 984 P.2d at 1252 ("When a written judgment, order, or decree ends the litigation by fully deciding all rights and liabilities of all parties, leaving nothing further to be adjudicated, the judgment, order, or decree is final and appealable."); People v. Harkness, 339 N.E.2d 545, 547 (Ill.App.Ct. 1975) (explaining that because a "finding of no probable cause is neither a conviction nor an acquittal[,]" it is


not a final judgment or order) (citation omitted). Accordingly, HRS § 701-110(2) is not applicable and the district court's no probable cause determination in 2DCW-19-0002338 was not a final order that precluded the indictment in this underlying case.

(b) Borge also argues that under the doctrine of collateral estoppel, the district court's no probable cause determination in 2DCW-19-0002338 barred the Plaintiff-Appellee State of Hawai'i (State) from seeking an indictment for Attempted Murder in the Second Degree in this underlying case. The doctrine of "collateral estoppel means that, 'when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.'" State v. Mundon, 129 Hawai'i 1, 14, 292 P.3d 205, 218 (2012) (citation omitted).

In this case, and as discussed above, the district court's determination that there was no probable cause in 2DCW-19-0002338 was not a final judgment. Therefore, the State was not collaterally estopped from seeking the indictment against Borge in this underlying case. See State v. Deedy, 141 Hawai'i 208, 221, 407 P.3d 164, 177 (2017); see also Morse v. United States, 267 U.S. 80, 85 (1925) ("[A] judgment in a preliminary examination discharging an accused person for want of probable cause is not conclusive upon the question of his guilt or innocence and constitutes no bar to a subsequent trial in the court to which the indictment is returned.") (citation omitted).

(c) Borge next argues that the indictment "should have been dismissed because Borge's due process right to a fair and impartial grand jury was violated for a second time by three


instances of prosecutorial misconduct before the grand jury." The Hawai'i Supreme Court has held that prosecutorial misconduct before the grand jury must be "extreme and clearly infringe[ ] upon the jury's decision-making function" to warrant dismissal of the indictment. State v. Pulawa, 62 Haw. 209, 218, 614 P.2d 373, 378 (1980) .

Borge alleges the first instance of prosecutorial misconduct occurred when the prosecutor "elicited evidence of Borge's invocation of his right to remain silent by asking [Detective Dennis Clifton (Detective Clifton)] whether he had taken 'any statement from' [Borge] the day after he was arrested, to which [Detective] Clifton answered, 'We attempted to question him, but he requested to speak to an attorney.'"

A criminal defendant has the right to remain silent, and no person shall be "compelled in any criminal case to be a witness against oneself." Haw. Const, art. I, § 10. A "prosecutor may not imply guilt from a defendant's exercise of the right to remain silent, for doing so would dilute the right, undermine the values that the right protects, and penalize the defendant for exercising a constitutional right." State v. Tsujimura, 140 Hawai'i 299, 314, 400 P.3d 500, 515 (2017).

Contrary to Borge's argument, the June 26, 2020 grand jury transcript shows the prosecutor's line of inquiry as detailing the actions Detective Clifton took the night of the incident as part of his investigation. Although the witness referenced Borge's silence, it was referenced only once before the prosecutor moved on to a different question. Furthermore, the prosecutor promptly instructed the grand jury to not


"consider that information in [its] deliberation." See State v. Rodriques, 113 Hawai'i 41, 49-50, 147 P.3d 825, 833-34 (2006) (holding that the information elicited from the detective was not an improper comment on the defendant's right to remain silent because the prosecutor's question was "part of a line of inquiry designed to establish the detective's custom and practice regarding accurately transcribing . . . statements").

Because the prosecutor did not comment on Borge's silence, did not use his silence to imply his guilt, and immediately gave curative instructions to the grand jury regarding that information, there was no prosecutorial misconduct. State v. Williams 146 Hawai'i 62, 72, 456 P.3d 135, 145 (2020) (explaining factors to consider when reviewing allegations of prosecutorial misconduct).

Borge alleges the second instance of prosecutorial misconduct occurred...

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