State v. Vaimili. ( 2015 )

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Electronically Filed
Supreme Court
SCWC-12-0000115
29-JUN-2015
03:28 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
JOSEPH VAIMILI, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-12-0000115
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000115; CR. NO. 09-1-0410)
JUNE 29, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case arises from Petitioner/Defendant-Appellant
Joseph Vaimili’s (“Vaimili[’s]”) convictions for sex trafficking
related crimes based on his conduct as a pimp for the
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complaining witness (“CW”) who came to Hawaii to work as a
prostitute during the 2009 Pro Bowl.
In brief summary, at his trial, Vaimili was present
for voir dire and jury selection; however, he failed to appear
in court two days later despite being instructed to do so. The
trial was continued two times over the course of one month,
first for five days, at which time the circuit court found that
Vaimili had voluntarily absented himself from the proceedings,
and again for twenty-one days, after which the circuit court
conducted trial in absentia.
Vaimili challenges the State’s pleading of the charges
against him in the disjunctive and the circuit court’s
conducting trial in absentia, presenting four issues on
certiorari:
1. Whether the ICA [Intermediate Court of Appeals] gravely
erred in holding that the charges against Vaimili were
not defective where they were phrased in the
disjunctive?
2. Whether the ICA gravely erred in holding that Vaimili’s
counsel was not ineffective for failing to challenge the
charges as defective where they were phrased in the
disjunctive?
3. Whether the ICA gravely erred in holding that the
proceedings in this case “commenced” for purposes of
HRPP [Hawaii Rules of Penal Procedure] Rule 43 when the
process of jury selection begins?
4. Whether the ICA gravely erred in holding that the
circuit court did not violate Vaimili’s constitutional
right to be present where it proceeded to trial in his
absence?
Questions 1, 2, and 4 were raised as points of error before the
ICA. Question 3 concerns an issue of first impression in this
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jurisdiction regarding the ICA’s holding that “trial commences”
for purposes of HRPP Rule 43 when jury selection begins.
II. Background
A. Circuit Court Proceedings1
On October 13, 2009, Vaimili was charged by amended
complaint with two counts of Kidnapping, one count of
Terroristic Threatening in the First Degree, one count of
Promoting Prostitution in the First Degree, and one count of
Carrying or Use of a Firearm in the Commission of a Separate
Felony. The amended complaint read in relevant part as follows:
COUNT I: On or about the 4th day of March, 2009, to
and including the 5th day of March 2009, in the City and
County of Honolulu, State of Hawaii, JOSEPH VAIMILI did
intentionally or knowingly restrain [the Complaining
Witness (“CW”)], with intent to terrorize her or a third
person, thereby committing the offense of Kidnapping, in
violation of Section 707–720(1)(e) of the [HRS].[2]
. . . .
COUNT II: On or about the 21st day of February, 2009,
in the City and County of Honolulu, State of Hawaii, JOSEPH
VAIMILI did intentionally or knowingly restrain [the CW],
with intent to inflict bodily injury upon her or subject
her to a sexual offense, thereby committing the offense of
Kidnapping, in violation of Section 707–720(1)(d) of the
[HRS].[3]
. . . .
COUNT III: On or about the 4th day of March, 2009, to
and including the 5th day of March, 2009, in the City and
1
The Honorable Randal K.O. Lee presided.
2
See HRS § 707-720(1) (Supp. 2008) (“A person commits the offense
of kidnapping if the person intentionally or knowingly restrains another
person with intent to . . . [i]nflict bodily injury upon that person or
subject that person to a sexual offense; [or] [t]errorize that person or a
third person . . . .”).
3
See supra note 2.
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County of Honolulu, State of Hawaii, JOSEPH VAIMILI,
threatened, by word or conduct, to cause bodily injury to
[the CW], with the use of a dangerous instrument, to wit,
an instrument that falls within the scope of Section 706–
660.1 of the [HRS], with the intent to terrorize, or in
reckless disregard of the risk of terrorizing [the CW],
thereby committing the offense of Terroristic Threatening
in the First Degree, in violation of Section 707–716(1)(e)
of the [HRS].[4]
. . . .
COUNT IV: On or about the 18th day of February, 2009,
to and including the 3rd day of March, 2009, in the City
and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did
knowingly advance prostitution by compelling [the CW] by
force, threat, or intimidation to engage in prostitution,
or did knowingly profit from such coercive conduct by
another, thereby committing the offense of Promoting
Prostitution in the First Degree, in violation of Section
712–1202(1)(a) of the [HRS].[5]
. . . .
COUNT V: On or about the 4th day of March, 2009, to
and including the 5th day of March, 2009, in the City and
County of Honolulu, State of Hawaii, JOSEPH VAIMILI did
knowingly carry on his person or have within his immediate
control or did intentionally use or threaten to use a
firearm while engaged in the commission of a separate
felony, to wit, Kidnapping and/or any included felony
offense of Kidnapping, whether the firearm was loaded or
not, and whether operable or not, thereby committing the
offense of Carrying or Use of a Firearm in the Commission
of a Separate Felony, in violation of Section 134–21 of the
Hawaii Revised Statutes.[6] JOSEPH VAIMILI commits the
4
See HRS § 707-716(1)(e) (Supp. 2007) (“A person commits the
offense of terroristic threatening in the first degree if the person commits
terroristic threatening . . . [w]ith the use of a dangerous instrument.”).
“Terroristic threatening” is defined in HRS § 707-715 (1993) (“A person
commits the offense of terroristic threatening if the person threatens, by
word or conduct, to cause bodily injury to another person . . . [w]ith the
intent to terrorize, or in reckless disregard of the risk of terrorizing,
another person.”).
5
See HRS § 712-1202(1)(a) (Supp. 2008) (“A person commits the
offense of promoting prostitution in the first degree if the person knowingly
. . . [a]dvances prostitution by compelling a person by force, threat, or
intimidation to engage in prostitution, or profits from such coercive conduct
by another . . . .”).
6
See HRS § 134-21 (Supp. 2006) (“It shall be unlawful for a person
to knowingly carry on the person or have within the person’s immediate
control or intentionally use or threaten to use a firearm while engaged in
the commission of a separate felony, whether the firearm was loaded or not,
and whether operable or not . . . .”).
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offense of Kidnapping, in violation of Section 707–
720(1)(e) of the [HRS], if he intentionally or knowingly
restrain [sic] [the CW] with intent to terrorize her or a
third person.
Jeffrey T. Arakaki (“Arakaki” or “trial counsel”) was
appointed to represent Vaimili.
On April 6, 2010, during a hearing on certain pretrial
motions, trial counsel requested that Vaimili’s presence be
waived. The State informed the circuit court that it had
information that Vaimili had left Hawaii, and that the bail bond
company had gone to San Francisco to try to locate him. The
State also explained that Vaimili’s bail was set for $250,000
because of the high risk of his leaving the state. The circuit
court ordered a trial call for the following week and required
Vaimili to be present in court.
On April 13, 2010, Vaimili was present in court for
the trial call. Ida Peppers (“Peppers”), who stated that she
was a representative of the bail bond company and also Vaimili’s
employer in a restaurant, reported to the circuit court that she
and Linda Del Rio (“Del Rio”), an employee of the bail bond
company, were in California looking for another person, not
Vaimili. Vaimili denied that he had traveled to the mainland
while on bail, instead asserting that he had been at work. The
circuit court clarified with Vaimili that he “cannot leave this
island without this Court’s permission[,]” and continued the
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trial call to the following week to permit additional witnesses
to be called on the issue of whether Vaimili had left Hawaii.
At the hearing on April 22, 2010, a district court
clerk (“court clerk”) testified that on April 1st, Del Rio
informed the clerk that Vaimili had forfeited his $250,000 bail,
and that she was going to travel to San Francisco to bring him
back. The court clerk, however, did not know whether Vaimili
had actually left the jurisdiction. Del Rio testified that
“Vaimili never left the State of Hawaii[,]” and that she went to
San Francisco to search for two other people. The circuit court
concluded that the evidence presented was insufficient to prove
an intentional violation of the conditions of bail by Vaimili.
The circuit court found that “Del Rio’s credibility is an
issue[,]” and that the court clerk was more credible. The
circuit court modified Vaimili’s bail conditions, subjecting
Vaimili to electronic monitoring and imposing a curfew.
On June 15, 2010, Vaimili apparently failed to appear
on time for morning proceedings, for which the circuit court
issued the following reprimand:
Mr. Vaimili, you were supposed to be here this
morning. And I know your attorney told you you didn’t have
to, [sic] but at the last hearing I made it clear all
parties be here. Henceforth, whenever you have to come to
this courtroom, you have to come -- you have to be here,
regardless of what somebody else tells you just be here.
And be here on time because if you’re not on time, I’m
going to take you into custody.
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On Monday, June 21, 2010, Vaimili was present for jury
selection and voir dire, which began and was completed that day.
After the jury was selected, the circuit court informed the
jurors, in Vaimili’s presence, that trial would resume on
Wednesday at 9:00 a.m., instructed the jurors to arrive at 8:45
a.m., and informed the jurors that he would swear them in on
Wednesday before proceeding with opening statements and
evidence.
On Wednesday, June 23, 2010, Vaimili failed to appear.
Trial counsel represented that he had spoken to Vaimili the day
before because they planned to meet, but that Vaimili failed to
show up for their meeting and thereafter did not respond to any
of his contacts. Trial counsel explained that when he attempted
to contact Vaimili by phone, Vaimili’s phone number “indicated
that he would not take any calls at that point in time.”7
At that point, the circuit court asked counsel how the
case should proceed in light of Vaimili’s absence, explaining
that trial in absentia could proceed because “Vaimili
voluntarily absented himself from the trial[,]” or he “could
also discharge the jury[,]” which had not been sworn in yet.
Trial counsel preferred to have Vaimili present and requested a
continuance until Vaimili either “show[ed] up” or was “picked
7
Trial counsel explained to the court: “I made some calls and the
calls were just when I call his phone number the phone number just indicated
that he would not take any calls at that point in time.”
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up[.]” The circuit court issued a bench warrant, ordered
forfeiture of Vaimili’s bond, and continued trial for five days
to the following Monday, June 28, 2010.
On June 28, 2010, the State filed a “Memorandum on
Trial In Absentia[,]” asserting, inter alia, that: (1) Vaimili
was present in court when trial commenced with jury selection;
(2) Vaimili was present in court when the State confirmed that
the CW was on Oahu and prepared to testify at trial; (3) Vaimili
did not return to court thereafter, and thus, voluntarily
absented himself from the proceedings; and (4) the public’s
interest in going forward with the trial outweighed Vaimili’s
right to be present. The State further represented that (1) on
June 15, 2010, Vaimili notified the Intake Service Center
(“ISC”) that the telephone to which his electronic monitor was
attached had been disconnected, and that the ISC had not heard
from him since June 17, 2010 despite his having an appointment
with ISC the week of June 21, 2010; (2) since Vaimili’s non-
appearance in court on June 23, 2010, police officers and
sheriffs had been actively looking for Vaimili on Oahu at places
he was known to frequent, but had been unable to find him; (3)
on June 23, 2010, Vaimili had reportedly been at the Honolulu
International Airport preparing to board a flight to San
Francisco; and (4) because Vaimili had absconded, the CW, who
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had been brought from the mainland to Hawaii to testify at
trial, was “obligated to remain on the Island of Oahu for an
additional week at significant expense, inconvenience and
emotional distress to the [CW], who fear[ed] [that Vaimili] and
his friends w[ould] attempt to keep her from testifying against
him.”
Trial counsel then informed the circuit court that he
had not had any contact with Vaimili, and that Del Rio told him
that morning that they had not located him. The circuit court
noted that “it received several phone calls from Ms. Del Rio
indicating that she was at the airport anticipating that Mr.
Vaimili was -- maybe leaving the jurisdiction and that she was
soliciting the assistance of law enforcement authorities to
assist her in locating and apprehending [him].” The circuit
court therefore found that under HRPP Rule 43, “Vaimili [had]
voluntarily and intelligently absent[ed] himself from the
proceedings.”
The circuit court called in the jury, advised them
that the trial would be continued to July 19, 2010, and asked if
anyone would be unavailable. The circuit court excused a juror
who stated that she was going back to the mainland on July 15th,
and replaced her with the first alternate. The circuit court
then asked the jurors whether they had heard anything about the
case outside of the courtroom, questioned two jurors who
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answered affirmatively, outside of the presence of the other
jurors, and permitted trial counsel and the State an opportunity
to question them. The two jurors stated that what they had been
told would not impact their ability to be fair and impartial,
and the circuit court kept the two jurors on the jury. The
circuit court then addressed the entire jury and instructed them
to return on July 19th.
The circuit court also denied Vaimili’s motion to
dismiss his charges for alleged discovery violations, and
Natasha Cambra (“Cambra”), a co-defendant whose case had been
consolidated with Vaimili’s case for trial, pled guilty to
unlawful imprisonment pursuant to a plea agreement.
Vaimili had not been located by July 19, 2010. Trial
counsel objected to trial in absentia, arguing that “the public
interest in continuing this trial does not in fact supersede
[Vaimili’s] right to be present, [nor] his right to confront . .
. his accusers[,]” and that the State had not shown that Vaimili
was voluntarily absent. Trial counsel also informed the court
that he had last spoken to Vaimili on June 22, the day after
jury selection, and that they had scheduled to meet. Trial
counsel further stated that he attempted to contact Vaimili “a
number of times[]” through a phone number provided by Vaimili,
including an attempt made as recently as one or two weeks
previously, but that he did not respond to any of those calls.
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Trial counsel also stated that Peppers confirmed with him that
the number he was using to reach Vaimili was “not a number that
he can be reached at[,]” and that Peppers was “presently on the
mainland looking for Mr. Vaimili.”
Citing HRPP Rule 43, the circuit court ruled in
relevant part as follows:
[T]he defendant shall be considered to have waived the
right to be present whenever a defendant initially present
is voluntarily absent after the hearing or trial is
commenced. In this particular case, Mr. Vaimili was
informed that the —- after jury selection that the trial
will commence at 9:00 on the 23rd. Mr. Vaimili was
instructed to be here I believe at 8:30. He had been
previously admonished by this court that irregardless [sic]
of what anybody might tell him that he is required to be
present at all proceedings and that’s why the court even
imposed conditions on Mr. Vaimili short of revoking his
bail.
As counsel recall there was a motion to revoke Mr.
Vaimili’s bail because of allegations that Mr. Vaimili had
left the jurisdiction to the State of California, and the
witness that would bear fruit to that was Ms. Del Rio.
However, at the hearing Ms. Del Rio had indicated that that
was not correct, and therefore the court had no basis to
grant the motion. However, given the seriousness of the
offense, the court nevertheless imposed the conditions that
it did on Mr. Vaimili only later be [sic] confronted on
June 23rd of Mr. Vaimili’s failure to appear. The court
even continued the matter to allow [trial counsel] or Ms.
Del Rio to find Mr. Vaimili. And to this date, Mr. Vaimili
has yet to appear before this court. Therefore, the court,
under Rule 43 of the Hawaii Rules of Penal Procedure, will
proceed without Mr. Vaimili’s presence.
The circuit court then proceeded to swear in the jury,
and instructed the jury that Vaimili had “voluntarily elected
not to be present at trial[,]” and that the jury shall not use
or consider Vaimili’s absence to determine his guilt or
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innocence of the charges and shall not use Vaimili’s absence “as
evidence that [he] is a person of bad character.”8
On July 22, 2010, the jury found Vaimili guilty as
charged on all five counts.
On or about October 14, 2011, Vaimili was arrested in
Texas and returned to Hawaii for sentencing.
On February 21, 2012, Vaimili appeared before the
circuit court for sentencing. The circuit court imposed
mandatory minimum terms of incarceration based on Vaimili’s
status as a repeat offender, sentencing him to forty years of
imprisonment as follows: ten years on counts 1 and 2, and five
years on count 3 to run concurrently, ten years on count 4 to
run consecutively to the sentences on counts 1 through 3, and 20
years on count 5 to run consecutively to the sentences on counts
1 through 4.
On February 24, 2012, Vaimili appealed the Judgment to
the ICA.
8
Relevant to the State’s charging Vaimili with alternative acts,
the circuit court also instructed the jury as follows:
The law allows the introduction of evidence for the
purpose of showing that there is more than one act upon
which proof of an element of an offense may be based. In
order for the prosecution to prove an element, all twelve
jurors must unanimously agree that the same act has been
proved beyond a reasonable doubt.
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On April 12, 2012, Arakaki filed a motion to withdraw
as counsel, which the ICA granted. Thereafter, Jeffrey A. Hawk
was appointed counsel for Vaimili, effective June 4, 2012.
B. Appeal to the ICA
On appeal to the ICA, Vaimili argued that his
conviction should be vacated because: (1) the charges against
him were fatally defective due to the State’s charging him in
the disjunctive, which allegedly failed to provide him with
adequate notice of the alleged offenses; (2) his trial counsel
provided ineffective assistance by failing to raise the charging
issue; and (3) the circuit court deprived Vaimili of his
constitutional right to be present at trial by holding trial in
his absence after he failed to appear.
The ICA affirmed the circuit court’s Judgment in a
published Opinion, stating its holdings as follows:
(1) consistent with . . . State v. Codiamat, 131 Hawaii
220, 317 P.3d 664 (2013), the State’s charging Vaimili in
the disjunctive did not render his charges defective under
Codiamat; (2) Vaimili’s trial counsel’s failure to raise
the charging issue did not constitute ineffective
assistance of counsel; and (3) the Circuit Court acted
within its discretion, and did not violate Vaimili’s right
to be present at trial, when it only proceeded with the
trial after it became apparent that Vaimili was voluntarily
absent, that he could not be located, and that it was
unlikely he would soon return.
With respect to the disjunctive charges, the ICA also stated in
Part I.D. of its discussion:
We conclude that the charges against Vaimili gave him
fair notice of the nature and cause of the accusation
against him and what he needed to be prepared to meet. It
is well-settled that where an offense statute establishes
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alternative means of committing an offense, the State is
allowed to prove in the disjunctive, that is, prove the
offense was committed by establishing any of the
alternative means.
If the State can prove alternative means in the
disjunctive, then charging alternative means in the
disjunctive serves to provide a defendant with fair notice.
Put another way, disjunctive charging provides a defendant
with fair notice because it accurately reflects what the
defendant must be prepared to meet, and thus, satisfies due
process. . . .
In this case, the State’s disjunctive charging served
to provide Vaimili with fair notice that the State could
prove the charges against him through proof of alternative
acts or states of mind. . . . We conclude that Vaimili
has failed to show that his charges were rendered fatally
defective by the State’s charging in the disjunctive.
(citations omitted).
III. Standards of Review
A. Sufficiency of Charges
“[W]hether a complaint provides sufficient notice to a
defendant is reviewed under the de novo, or right/wrong,
standard.” State v. Codiamat, 131 Hawaii 220, 223, 317 P.3d
664, 667 (2013).
B. Ineffective Assistance of Counsel
When reviewing a claim of ineffective assistance of
counsel, [the appellate court] looks at whether defense
counsel’s assistance was within the range of competence
demanded of attorneys in criminal cases. The defendant has
the burden of establishing ineffective assistance of
counsel and must meet the following two-part test: 1) that
there were specific errors or omissions reflecting
counsel’s lack of skill, judgment, or diligence; and 2)
that such errors or omissions resulted in either the
withdrawal or substantial impairment of a potentially
meritorious defense. To satisfy this second prong, the
defendant needs to show a possible impairment, rather than
a probable impairment, of a potentially meritorious
defense. A defendant need not prove actual prejudice.
State v. Wakisaka, 102 Hawaii 504, 513-14, 78 P.3d 317, 326-27
(2003) (internal quotation marks, citations, and footnote
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omitted).
C. Defendant’s Constitutional Right to be Present
“We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard.” State v.
Pratt, 127 Hawaii 206, 212, 277 P.3d 300, 306 (2012) (citations
and internal quotation marks omitted).
D. Interpretation of a Court Rule
Principles of statutory construction apply to
interpreting a rule promulgated by the courts. The
interpretation of a court rule is thus a question of law
reviewable de novo. See State v. Baron, 80 Hawaii 107, 113, 905
P.2d 613, 619 (1995).
IV. Discussion
A. Disjunctive Charging Language
In Codiamat, 131 Hawaii 220, 317 P.3d 664, this court
recognized that “states of mind may be charged disjunctively,”
and “acts may be charged disjunctively when the words used
charge similar or analogous forms of conduct that are codified
in a single subsection of a statute.” 131 Hawaii at 227, 317
P.3d at 671 (citing State v. Batson, 73 Haw. 236, 248, 831 P.2d
924, 931 (1992); State v. Jendrusch, 58 Haw. 279, 280, 567 P.2d
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1242, 1243 (1977); State v. Nesmith, 127 Hawaii 48, 51, 276 P.3d
617, 620 (2012)). Here, the ICA “conclude[d] that the charges
against Vaimili gave him fair notice of the nature and cause of
the accusation against him and what he needed to be prepared to
meet” because the State was permitted to “prove the charges
against him through proof of alternative acts or states of
mind.”
Although initially, the ICA accurately quoted our
holding in Codiamat, the ICA’s subsequent language in Part I.D.
of its discussion, partially quoted in Part II.B., supra, is
overly expansive and may suggest an extension of our holding in
Codiamat. We therefore expressly reiterate that our conclusion
is limited to the following: “when charging a defendant under a
single subsection of a statute, the charge may be worded
disjunctively in the language of the statute as long as the acts
charged are reasonably related so that the charge provides
sufficient notice to the defendant.” Codiamat, 131 Hawaii at
227, 317 P.3d at 671 (footnote omitted). Here, Vaimili was
charged by amended complaint. See supra Part II.A. A review of
the actions alleged in each count reveals that the charges were
worded disjunctively in the language of a single subsection of
each respective statute.
Nevertheless, Vaimili asserts that the charges for each
count gave him insufficient notice of the specific acts with
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which he was charged. In brief, for each count charged, he
identifies four possible acts that could support a conviction of
the charge, and states that the four acts were “distinct and
separate acts that [he] had to prepare to defend.” For example,
with respect to Count I, Vaimili asserts:
[T]here were four distinct acts that could have supported
Vaimili’s conviction: 1) intentionally restraining [the CW]
with intent to terrorize her; 2) knowingly restraining [the
CW] with intent to terrorize her; 3) intentionally
restraining [the CW] with intent to terrorize an
unspecified third person; or 4) knowingly restraining [the
CW] with intent to terrorize an unspecified third person.
Vaimili’s assertion is without merit. The State’s
charging of multiple “distinct and separate” acts using
disjunctive language is permissible as long as use of the
disjunctive is confined to address “similar or analogous forms
of conduct” contained in a single subsection of a statute; in
this way, the alleged acts are reasonably related, and each of
those separate acts can be ascertained. Codiamat, 131 Hawaii at
227, 317 P.3d at 671.
Here, determination of the content and number of
disparate acts alleged is not an issue, as Vaimili readily
identifies each of them. Further, Vaimili’s assertions that the
disparate acts alleged by the State within each count are not
reasonably related to provide Vaimili with requisite notice, are
unpersuasive. Vaimili points only to the kidnapping charge in
Count I to illustrate why he was not given sufficient notice.
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That is, Vaimili suggests that Count I did not provide him
sufficient notice because the amended complaint did not allege
the identity of the possible “third person.” Yet, the absence
of the identity of the “third person” in the amended complaint,
which could have been rectified by a motion for a bill of
particulars, see HRS § 806-47 (1993), bears not on whether the
State’s use of the disjunctive failed to give Vaimili adequate
notice of the “nature and cause of the accusation,” Haw. Const.
art. I, § 14; that is, whether “the acts charged are reasonably
related.”
Vaimili provides no other reasons to support a
conclusion that the acts charged within each count are not
reasonably related. The charges met due process requirements as
they provided fair notice and were worded “‘in a manner such
that the nature and cause of the accusation could be understood
by a person of common understanding.’” Codiamat, 131 Hawaii at
223, 317 P.3d at 667 (quoting State v. Sprattling, 99 Hawaii
312, 318, 55 P.3d 276, 282 (2002)).
As previously noted, each count of the charges against
Vaimili was worded disjunctively in the language of a single
subsection of a statute, alleging conduct that was reasonably
related. We conclude the amended complaint provided sufficient
notice to Vaimili and was not defective. See Codiamat, 131
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Hawaii at 227, 317 P.3d at 671. Further, as no potentially
meritorious defense was implicated, trial counsel did not
provide ineffective assistance for failing to object to the
disjunctive charging language. See Wakisaka, 102 Hawaii at 513-
14, 78 P.3d at 326-27.
B. Trial in Absentia
“[A] [d]efendant’s right to be present at all stages
of his [or her] trial is of fundamental importance and is
derived from the confrontation clause of the Fifth Amendment to
the United States Constitution and made applicable to the states
by the due process clause of the Fourteenth Amendment.” State
v. Caraballo, 62 Haw. 309, 320, 615 P.2d 91, 99 (1980) (citing
Pointer v. Texas, 380 U.S. 400 (1965)). Trial may continue,
however, in certain circumstances when a defendant is
voluntarily absent.
Rule 43 of the Hawaii Rules of Penal Procedure
(“HRPP”) codifies a defendant’s constitutional right to be
present at trial, as well as exceptions to the defendant’s
continued presence. See Caraballo, 62 Haw. at 320, 615 P.2d at
99 (referring to the Hawaii Rules of Criminal Procedure
(“HRCP”), the predecessor to the HRPP). The Rule states in
relevant part:
(a) Presence required. The defendant shall be present at
the arraignment, at the time of the plea, at evidentiary
pretrial hearings, at every stage of the trial including
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the impaneling of the jury and the return of the verdict,
and at the imposition of sentence, except as otherwise
provided by this rule.
(b) Continued presence not required. The further progress
of a pretrial evidentiary hearing or of the trial to and
including the return of the verdict shall not be prevented
and the defendant shall be considered to have waived the
right to be present whenever a defendant, initially
present,
(1) is voluntarily absent after the hearing or trial
has commenced (whether or not the defendant has been
informed by the court of the obligation to remain during
the trial); or
(2) engages in conduct which is such as to justify
exclusion from the courtroom.
HRPP Rule 43.
By proceeding with trial despite his absence, Vaimili
argues the trial court violated this court rule, and in so
doing, violated his rights under the United States and Hawaii
Constitutions. Specifically, Vaimili contends (1) the State
failed to show his absence from trial was voluntary; (2) that
trial does not “commence” until after the empaneled jury is
administered its oath, and as such, Rule 43(b)’s exception to
the defendant’s constitutional right to be present does not
apply to his case as the selected jury had not been administered
its oath prior to his absence from court; and (3) his absence
through the trial was “not harmless beyond a reasonable doubt.”
For the following reasons, Vaimili’s arguments are
unpersuasive.
1. Vaimili’s Absence Was Voluntary.
Vaimili was present in court on June 21, 2010 when the
jury was selected and the parties and jurors were instructed to
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return two days later. Vaimili, who was released on bail,
failed to return when trial resumed on June 23, 2010. Trial
counsel could not explain Vaimili’s absence, representing that
he had spoken with Vaimili on June 22 because they planned to
later meet, but that Vaimili failed to show and thereafter did
not return any of trial counsel’s phone calls. After issuing a
bench warrant and ordering the forfeiture of Vaimili’s bond, the
circuit court continued the trial for five days. On June 28,
2010, Vaimili’s whereabouts were still unknown — trial counsel
informed the circuit court that Vaimili still had not contacted
him and that the bail bond company had not been able to locate
Vaimili. The circuit court also noted that it received several
phone calls from a bail bond company employee indicating she was
seeking assistance from law enforcement authorities to help
locate and apprehend Vaimili.
The court continued proceedings for another twenty-one
days to July 19, 2010. On that date, Vaimili remained absent,
and defense counsel argued that trial should not proceed without
Vaimili as the State “ha[d] not met its burden to show that
[Vaimili] [wa]s voluntary[ily] absent.” Specifically, defense
counsel suggested, “[f]or all we know, your Honor, [Vaimili] may
have been hurt or . . . deceased.” Through the court’s colloquy
with defense counsel, it was established that defense counsel’s
last successful contact with Vaimili was on June 22, which was
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the day after jury selection. Further, all of defense counsel’s
subsequent attempts to contact Vaimili by phone at a number
provided by Vaimili — including the most recent efforts one to
two weeks before July 19 — were unsuccessful. Defense counsel
also stated that the head of the company that posted bail for
Vaimili informed him that she could not reach Vaimili at that
same provided number, and that she was searching for Vaimili on
the mainland. Thus, for almost a month, Vaimili had no contact
with his attorney or bail bond person, the minimum two
individuals he should have had contact with given that he was
released on bail and was last informed that trial was to resume
on June 23, 2010. Moreover, these events unfolded after (1) the
court previously received testimony in April 2010 by the court
clerk that Del Rio had informed her that Vaimili had forfeited
bail and would need to be retrieved from San Francisco, and (2)
Vaimili failed to appear on time for proceedings the morning of
June 15, 2010.
Based on the foregoing, we conclude the ICA, when
conducting its de novo review, did not err in “conclud[ing] that
there was sufficient evidence to show that Vaimili was
voluntarily absent.” The trial court had issued a bench warrant
to secure Vaimili’s return, yet local authorities were unable to
locate him. The trial court also provided a significant amount
of time for Vaimili to reappear and contact his attorney or bail
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bond person, which he did not do. Moreover, the telephone
number provided by Vaimili, when dialed, indicated that Vaimili
“would not take any calls at that point in time,” see supra note
7, which does not support defense counsel’s position that
Vaimili may have been injured or deceased. As the ICA noted,
“[a]lthough the . . . [c]ourt did not know the precise reason
for Vaimili’s failure to appear, the record provides compelling
evidence that Vaimili had absconded” and therefore was
voluntarily absent.
2. For the Purposes of HRPP Rule 43, Trial “Commences”
before the Selected Jury Is Sworn.
HRPP Rule 43 is the successor to HRCP Rule 43, which
in turn was modeled on Rule 43 of the Federal Rules of Criminal
Procedure (“FRCP”). See Caraballo, 62 Haw. at 322 n.12, 615
P.2d at 99 n.12; Matias v. State, 73 Haw. 147, 149, 828 P.2d
281, 283 (1992). HRPP Rule 43 states in relevant part: “The
further progress . . . of the trial to and including the return
of the verdict shall not be prevented and the defendant shall be
considered to have waived the right to be present whenever a
defendant, initially present, . . . is voluntarily absent after
the . . . trial has commenced[.]” HRPP Rule 43(b)(1). This
portion of HRPP Rule 43 is substantially similar to the version
of FRCP Rule 43 after which HRCP Rule 43 was patterned. Compare
HRPP Rule 43(b)(1), with FRCP 43(b)(1) (1975 and 1995
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amendments) (“The further progress of the trial . . . will not
be prevented and the defendant will be considered to have waived
the right to be present whenever a defendant, initially present
at trial . . . is voluntarily absent after the trial has
commenced.”). Since 1995, FRCP 43 has not changed
substantively; only stylistic edits were made in 2002 to promote
clarity and consistency. See FRCP 43(c)(1)(A) (“A defendant who
was initially present at trial . . . waives the right to be
present . . . when the defendant is voluntarily absent after the
trial has begun . . . .”). See State v. Okumura, 58 Haw. 425,
570 P.2d 848 (1977).
As with the federal rule after which it was modeled,
HRPP Rule 43 “refers not to the commencement of jeopardy but to
the commencement of trial.” United States v. Miller, 463 F.2d
600, 603 (1st Cir. 1972). Thus, although jeopardy attaches
after an empaneled jury is sworn, see State v. Quitog, 85 Hawaii
128, 141, 938 P.2d 559, 572 (1997), that does not mean an
empaneled jury must be sworn before trial “commences” for the
purposes of HRPP Rule 43.
Rather, federal courts have consistently held that for
purposes of FRCP Rule 43, trial “has begun” or “commenced” when
jury selection begins, not when the selected jury is sworn in.
See, e.g., Miller, 463 F.2d at 603 (“With regard to a
defendant’s presence at trial, the trial commences ‘at least’
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from the time that the work of impaneling jurors begins.”
(quoting Hopt v. Utah, 110 U.S. 574, 578 (1884)); United States
v. Bradford, 237 F.3d 1306, 1309 (11th Cir. 2001) (citing United
States v. Krout, 56 F.3d 643 (5th Cir. 1995); United States v.
Camacho, 955 F.2d 950 (4th Cir. 1992); Government of the Virgin
Islands v. George, 680 F.2d 13 (3d Cir. 1982); Miller, 463 F.2d
600); United States v. Benabe, 654 F.3d 753 (7th Cir. 2011).
Indeed, “[a] felony defendant has a right to be present at jury
selection because the trial begins no later than voir dire.”
Cuoco v. United States, 208 F.3d 27, 32 (2d Cir. 2000) (emphasis
in original). These federal cases are persuasive given HRPP
Rule 43’s origins in FRCP Rule 43. Moreover, the plain text of
HRPP Rule 43 supports the conclusion that jury selection is not
a proceeding separate from trial. See HRPP Rule 43(a) (“The
defendant shall be present . . . at every stage of the trial
including the impaneling of the jury . . . .”) (emphasis added);
State v. Rauch, 94 Hawaii 315, 322, 13 P.3d 324, 331 (2000)
(stating that statutory construction begins with “language
contained in the statute itself”).
As such, we agree with the foregoing line of federal
cases interpreting FRCP Rule 43, and hold that for the purposes
of HRPP Rule 43, trial “commences” when prospective jurors are
administered an oath prior to voir dire, at any authorized
location for court proceedings.
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3. The Okumura Balancing Test Applies to Voluntarily
Absent Defendants Such as Vaimili.
We further clarify that when a defendant has not
expressly requested — and been granted — permission to leave an
on-going trial,9 but is otherwise voluntarily absent, the trial
court must still engage in the balancing test outlined in
Okumura, 58 Haw. 425, 570 P.2d 848, before determining whether
to proceed with the trial: “[T]he narrow discretion given to
the trial judge to proceed with the trial should be exercised
only when the public interest clearly outweighs that of the
absent defendant.” (quoting United States v. Tortora, 464 F.2d
1202, 1210 (2d Cir.), cert. denied sub nom. Santoro v. United
States, 409 U.S. 1063 (1972)). Thus, a defendant’s right to
confront his accusers is balanced against factors such as (1)
“the time and expense caused by [a] defendant’s efforts to
defeat the proceedings by his departure or flight,” Okumura, 58
Haw. at 430, 570 P.2d at 852 (citation and quotation marks
omitted); (2) “the likelihood that the trial could soon take
place with the defendant present,” United States v. Benavides,
9
Our ruling in Caraballo, 62 Haw. 309, 615 P.2d 91, is not
disturbed. In that case, the defendant, through counsel, twice requested and
was granted, permission to leave the trial while it continued to proceed.
See Caraballo, 62 Haw. at 321 n.11, 615 P.2d at 99 n.11. The first instance
was prior to the empaneling of the jury, and the second instance was during
the testimony of a witness. See Caraballo, 62 Haw. at 320 & nn.8, 9, 615
P.2d at 98 nn.8, 9. In these circumstances, we held that the defendant’s
requested, voluntary absence from trial, with no record that the defendant
also requested that trial be continued until his return, “operates as a
waiver of his right to be present and the trial may continue as if he were
present.” Caraballo, 62 Haw. at 323, 615 P.2d at 100.
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596 F.2d 137, 139 (5th Cir. 1979); (3) “the difficulty of
rescheduling,” Tortora, 464 F.2d at 1210; (4) the “inconvenience
to jurors,” Benavides, 596 F.2d at 140; and (5) harm to the
State’s case, Okumura, 58 Haw. at 430, 570 P.2d at 852.
Here, Vaimili was present at the start of trial, when
a jury and alternate jurors were selected. Despite Vaimili’s
absence when trial resumed on June 23, 2010 and was later
continued to June 28, 2010, the court did not hastily proceed
with trial, but instead continued proceedings again for an extra
twenty-one days due to Vaimili’s disappearance. Cf. Benavides,
596 F.2d at 140 (concluding the trial court abused its
discretion when it proceeded with trial after providing only a
one-day continuance for defense counsel to locate his clients).
Yet, even with the extension of time, no indication was given as
to when Vaimili would return. Vaimili did not contact anyone
related to the case, his attorney and bail bond person could not
reach him, and authorities could not locate Vaimili after a
bench warrant issued. Thus any further delay to proceedings in
order to await Vaimili’s return was foreseeably indefinite, as
there was “no reasonable probability he could be located
shortly.” United States v. Beltran-Nunez, 716 F.2d 287, 291
(5th Cir. 1983).
Based on these circumstances, the public interest
clearly outweighed Vaimili’s interest. The purpose of HRPP
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43(b)(1) is to prevent a defendant from “defeat[ing] the
proceedings by voluntarily absenting himself after the trial has
been commenced in his presence.” FRCP 43 advisory committee’s
note (1944 adoption). Vaimili’s disappearance for nearly a
month stymied all reasonable efforts by the court to permit him
to be present at the remainder of his trial. The delay caused
by Vaimili’s absence and lack of contact had already required
the replacement of one juror, with an indefinite delay
potentially requiring the dismissal of additional jurors,
thereby wasting the time and expense already spent for trial.
Accordingly, the circuit court did not violate
Vaimili’s right to be present at trial. The ICA did not err in
concluding that the circuit court appropriately exercised its
discretion in proceeding with the trial without Vaimili.
V. Conclusion
For the foregoing reasons, we affirm the December 24,
2014 Judgment of the Intermediate Court of Appeals, which
affirmed the Circuit Court of the First Circuit’s February 21,
2012 Judgment of Conviction and Sentence.
Jeffrey A. Hawk, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James M. Anderson,
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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