State v. Williander. , 415 P.3d 897 ( 2018 )

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Electronically Filed
Supreme Court
SCWC-15-0000759
04-APR-2018
08:34 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
GJ WILLIANDER,
Petitioner/Defendant-Appellant.
SCWC-15-0000759
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000759; CR. NO. 14-1-1212)
APRIL 4, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF RECKTENWALD, C.J.
I. Introduction
This case requires us to determine if the circuit court
erred in failing to continue trial because of the unavailability
of a defense witness.
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Defendant GJ Williander was charged with second degree
robbery of the complainant, Kyle Aihara. On the first day of his
trial,1 Williander moved to continue because police officer
Darren Sunada was unavailable to testify. Officer Sunada had
arrested Williander and spoken with him shortly after the alleged
robbery. Williander argued that Officer Sunada’s testimony would
provide important evidence regarding Williander’s state of mind
at the time of the incident. The State objected, noting that
Officer Sunada was unavailable because he was on injured leave,
and would not return to duty for several months. The circuit
court denied Williander’s motion.
At trial, Aihara testified that on the night of the
incident, he was walking when someone hit him from behind.
Aihara said that while he heard a voice, he could not make out
what was said, as he was in shock. A bystander, Michael Ragudo,
testified that he observed Aihara and Williander from across the
street, and heard Williander yell, “Give me your wallet,” “Give
me your fucking wallet,” and saw Williander strike Aihara. After
the State rested its case, Williander again moved to continue
trial, and also moved for a mistrial, which the circuit court
denied.
The defense’s only witness was Williander, who
testified that he had no recollection of the incident because he
1
The Honorable Rom A. Trader presided.
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had consumed substantial amounts of alcohol on the afternoon and
night in question. Following closing arguments, Williander
renewed his motion for mistrial, which the circuit court denied,
and the jury found Williander guilty as charged. Williander then
moved for a new trial, which the circuit court denied. On
appeal, the ICA affirmed the circuit court’s holdings.
In his application to this court, Williander argues
that the circuit court erred in denying Williander’s motion to
continue trial, motion for mistrial, and motion for new trial
because of Officer Sunada’s unavailability. We conclude that
defense counsel exercised due diligence by properly subpoenaing
Officer Sunada. We also conclude that Officer Sunada’s
observations provided a means for Williander to challenge
Ragudo’s testimony that Williander demanded Aihara’s wallet.
Ragudo’s testimony was the only evidence presented to support
finding Williander guilty of robbery rather than assault. Thus,
Officer Sunada’s testimony was relevant and material testimony
that benefitted Williander. Accordingly, Williander’s right to
compulsory process to obtain witnesses in his favor was violated,
and the circuit court erred in denying Williander’s motions.
We therefore vacate the ICA’s judgment on appeal and
the circuit court’s judgment of conviction and probation
sentence, and remand for further proceedings consistent with this
opinion.
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II. Background
A. Circuit Court Proceedings
On July 29, 2014, a grand jury indicted Williander for
robbery in the second degree, in violation of Hawai#i Revised
Statutes (HRS) § 708-841(1)(a). In discovery, Williander
received Sheldon Matsui’s statement, which included:
On June 13th, 2014 I was at 24hr Fitness on Kapiolani
Blvd. and saw an older Asian male holding his wrist
and another bystander telling me not to go outside.
When I looked outside I saw a Polynesian male
approaching people walking by on the sidewalk and
faking like he was going to hit them. The Polynesian
male was about 5’7 - 5’10 and about 200 - 240 lbs. He
seemed disoriented and kind’ve [sic] stumbled down the
sidewalk. He eventually walked towards Kalakaua Ave.
and I lost sight of him. When I got to my car I
called 911.
Williander received a copy of Matsui’s 911 call, in
which Matsui described the male as a “‘crazy guy with no shirt
on’” that was “‘trying to fight everybody.’” Williander also
received a copy of Officer Sunada’s written police report
regarding the incident, which states that he responded to the
scene at 10:28 p.m. and observed a shirtless man:
I observed the male, later identified as GJ
WILLIANDER, to have curly black hair and to be about
5-9” [sic] tall. Upon making the above observations,
I immediately stopped and exited my blue and white
police car and identified my self [sic] to WILLIANDER
as a police officer and informed him that he was being
detained as a suspect in a robbery case. I then
instructed WILLIANDER to place his hands behind his
back. WILLIANDER complied by placing his hands behind
his back while dropping to his knees and flopping to
the ground on his stomach under his own power. While
on the ground, WILLIANDER was handcuffed with his
hands behind his back without incident and was
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repositioned into the seated position.
. . . .
While with WILLIANDER, I was able to smell a strong
odor resembling an alcoholic type beverage to be
coming from his person. WILLIANDER was slurring his
words and rambling unintelligible verbiage.
WILLIANDER was also unsteady on his feet while
walking.
1. Motions for Continuance
In September 2014, Williander moved for a continuance,
stating that he needed more time to investigate. The State did
not object, and the court granted Williander’s motion. In
November 2014, Williander moved for a second continuance, as
there was “a matter of outstanding discovery.” The circuit court
granted Williander’s motion over the State’s objection. In
February 2015, Williander requested a third continuance because
his counsel’s trial schedule was full. Over the State’s
objection, the court granted Williander’s request. In April
2015, Williander requested a fourth continuance, as he was unable
to secure witness Sheldon Matsui. Over the State’s objection,
the circuit court granted the continuance, designating it as “a
last continuance for the defense.” In July 2015, on the day of
trial, Williander moved for a fifth continuance because Officer
Sunada was unavailable to testify. This fifth motion for
continuance is at issue.
When asked for an offer of proof for his fifth motion
for continuance, Williander’s counsel argued that Officer Sunada
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was a necessary witness because: (1) he was the arresting
officer; (2) the arrest occurred within a few minutes of the
incident; (3) his police report had the most detailed information
about “Williander’s state at that time”; and (4) his testimony
was important evidence “as to state of mind, an element in this
case.” The State objected, noting that the court had designated
Williander’s fourth continuance as a “last continuance,” and also
stating that Officer Sunada was on injured leave, with an
anticipated return for light duty in September 2015.
Defense counsel continued his arguments stating that,
without Officer Sunada, he did not “have a significant defense”
because Williander’s memory of the events was limited by his
intoxication. Thus, defense counsel argued that it had only two
helpful witnesses, Matsui and Officer Sunada, and Matsui did not
have as close contact with Williander as Officer Sunada.
Williander also stated that with regard to whether the
parties could stipulate to the testimony of Officer Sunada,
Williander would prefer live testimony because he only had one
witness, and a stipulated police report would have “less value”
than live testimony. Further, Williander stated that Officer
Sunada’s report had more detail about the incident because he was
the person who initially detained Williander and stated his
observations of Williander’s intoxication.
The court denied Williander’s motion, reasoning:
And I’m not saying that there’s a lack of
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diligence on your part relative to Officer Sunada
because, you know, he’s out. And even if you had been
diligent, and I’m presuming that up to this point in
time, he is out on injured leave, he’s not available.
But I am of the view that this case is not unduly
complex and that while it is less than ideal from the
standpoint of the defense strategy and availability of
witnesses and other information, that at this point
there’s been, as I indicated, several continuances.
. . . .
And while Officer Sunada might be able to
provide some impeachment, as we often know police
officers do do in cases like this, I’m not resting it
solely on that basis. And essentially it’s abuse of
discretion and I don’t believe on review that this
will be viewed as such. And so I think the defense
has had an ample opportunity to prepare and we’re
ready for trial and so we’re going to proceed.
2. Trial
a. The State’s Case-in-Chief
At trial, the State’s first witness was Kyle Aihara,
the complainant. He testified that he is legally blind, and
explained that he is not “completely blind,” but has “visual
limitations.” Aihara testified that on June 13, 2014, at
approximately 10:20 p.m., he was walking east on Kapi#olani
Boulevard, near 24 Hour Fitness, when he “felt something hit
[him] from behind . . . and [he] fell to the ground.” Aihara
testified that he “heard a voice,” but “couldn’t make it out,” as
he “was kind of in shock.” According to Aihara, he fell forward
on his knees and his face, felt pain in his left wrist, and then
“felt a presence of someone on top of [him] . . . .” Aihara
stated that Michael Ragudo, whom Aihara did not know prior to the
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incident, helped him up and gave him his glasses, which had
fallen off. Aihara testified that his wallet was still in his
pocket. Aihara stated that Ragudo then assisted him into the
lobby of 24 Hour Fitness, where Ragudo called the police. On
cross-examination, Aihara testified that he did not have any
recollection of anyone demanding his wallet, reaching into his
pocket to try to take his wallet, or touching his pants.
Michael Ragudo testified that, at 10:20 p.m. on the
night in question, he was on Kapi#olani Boulevard across the
street from 24 Hour Fitness when he saw “two guys kind of horsing
around.” According to Ragudo, he heard one guy yell “clearly”
and “loudly” in the tone of a “loud demand” or “command,” “Give
me your wallet,” “Give me your fucking wallet,” which indicated
to him that they were not just horsing around. Ragudo testified
that the “two guys were kind of struggling,” and that he heard,
“Give me your wallet,” twice. Ragudo testified that he saw one
man down on the ground on his hands and knees, and the other man
above him “reach up and then strike down towards the back of the
man’s head.” Ragudo stated that he then yelled and ran across
the street, at which point the suspect went Ewa-bound on
Kapi#olani. Ragudo stated that he gave Aihara his glasses,
helped him up, and then took him into the 24 Hour Fitness lobby
and called 911. According to Ragudo, when he was in the 24 Hour
Fitness lobby, he saw the suspect walking back towards them and
held the door closed in response. Ragudo testified that the
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suspect, now shirtless, was walking back and forth “agitatedly”
on the sidewalk in front of 24 Hour Fitness. Ragudo testified
that the police arrived five to ten minutes later. Ragudo also
testified that he did “a field identification” of Williander
about 15 to 20 minutes after the police arrived on the scene.
On cross-examination, Ragudo testified that he heard
the suspect demand the wallet twice, but that in his handwritten
statement, referenced only one demand. Ragudo explained that
“the first demand was kind of garbled, I wasn’t really paying
attention to it, but I clearly heard him the second time ‘Give me
your fucking wallet,’ which was when I yelled from across the
street.” Ragudo agreed that he did not observe anyone go through
Aihara’s pockets, or see anyone pat Aihara down, and that he
“just saw [Williander] on top of [Aihara] and deliver the punch.”
On redirect examination, Ragudo again explained that the
statement, “Give me your fucking wallet,” was “shouted very
loudly so I could hear it clearly,” and agreed that he did not
have any doubt as to what he heard. After calling two additional
police officers, the State then rested its case.
b. Motion to Submit Officer Sunada’s Police Report
into Evidence and Motion for Mistrial
Prior to the defense beginning its case, Williander
moved to enter into evidence a redacted version of Officer
Sunada’s police report under the hearsay exception in Hawai#i
Rules of Evidence (HRE) Rule 804(b)(8). While the court
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acknowledged that Officer Sunada was unavailable, it denied
Williander’s request, finding that the hearsay exception did not
apply.
In response, Williander moved to continue trial until
September, when Officer Sunada would be available. The State
objected, and also asserted that it was unwilling to stipulate to
any portion of the report. The court denied the motion to
continue trial. Williander then moved for a mistrial, arguing
that without Officer Sunada’s testimony, “Going forward at this
point is just impossible for us.” The State objected, and the
court denied the motion for mistrial.
c. The Defense’s Case-in-Chief
The defense’s only witness was Williander. Williander
testified that at around 2:00 p.m. on the day of the incident, he
drank about three 40-ounce containers of malt liquor at home.
Williander stated that around 5:00 p.m., he went to a bar, and
was “pretty buzzed” even before he continued to drink “hard
liquor” there. Williander testified that he was drunk that night
and after his “first few drinks” at the bar, he could not
remember what happened. Williander stated that the next thing he
remembered was waking up in the Honolulu Police Department (HPD)
“drunk tank” the following day. Williander testified that he did
not remember assaulting Aihara or making any statements to Aihara
or others in the area. On cross-examination, Williander
testified that he did not know Aihara or Ragudo. Williander also
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testified that he did not deny striking Aihara, but that he “just
[didn’t] remember.” Williander further testified that he did not
remember yelling, “Give me your wallet.”
d. Closing Arguments
The State argued that Williander’s statement, “Give me
your fucking wallet,” indicated that he intended to steal
Aihara’s wallet. The State also argued that Williander did not
deny striking Aihara or making the statement, “Give me your
fucking wallet.” At several points in closing arguments, the
State addressed Ragudo’s recollection of Williander’s demand for
the wallet. The State asserted that Ragudo “was confident” when
he testified that he heard the demand for the wallet and that
“[t]he demand for the wallet was clear and it was unequivocal.”
The State also argued that Ragudo did not “have a bias in this
case.” At the end of closing arguments, the State asserted that
“those four words are what this case is about -- ‘Give me your
wallet.’”
Williander argued that while there is “a lot” of
evidence to show that he assaulted Aihara, the State is
“overreaching” with regards to the robbery. Williander argued
that the only evidence of robbery was “those four words Mr.
Ragudo says he heard GJ say across a six-lane boulevard at 10 PM
on a Friday night.” Williander argued that Ragudo was not
accurate in his recollection of what Williander said to Aihara.
Williander asserted that “the verbal demand is everything because
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there’s nothing stolen . . . .”
e. Renewed Motion for Mistrial
After closing arguments, Williander renewed his motion
for mistrial, incorporating his previous arguments. Williander
also argued that the defense was “hammered with” Ragudo’s
testimony that Williander demanded the wallet, particularly in
the State’s closing arguments, because the defense did not have
the opportunity to call Officer Sunada as a witness. Williander
also argued that, according to his report, Officer Sunada “would
have said eight minutes later . . . [he] was with Mr. Williander
and he was slurring his words, rambling unintelligible verbiage.”
Williander further argued that the defense had no other means to
respond to the State’s arguments. The court denied Williander’s
renewed motion for mistrial.
The jury found Williander guilty as charged of robbery
in the second degree.
3. Post-trial
Following the jury’s verdict, Williander made a brief
oral motion for a new trial based on Officer Sunada’s absence, as
the “reliability of Mr. Ragudo’s testimony was critical in the
outcome of this case.” Williander also noted that he planned to
make the motion in writing. The court denied the oral motion
without prejudice with leave for Williander to file a written
motion.
Approximately a week later, Williander filed a motion
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for new trial, reiterating his earlier arguments, and arguing
that he satisfied the factors in State v. Lee2 required for a
grant of a continuance. The State filed its opposition, arguing
that Officer Sunada’s testimony was “mere impeachment,” as he was
not present during the robbery, and would not have provided
testimony that bears directly upon the issue of guilt. The State
argued that the “sole reason” Williander sought Officer Sunada’s
testimony was to impeach the credibility of Ragudo’s testimony
that Williander demanded Aihara’s wallet. The State also argued
that Williander could not use Officer Sunada’s testimony to
negate Williander’s state of mind because the jury cannot
consider self-induced intoxication to negate the defendant’s
state of mind. The State then argued that Williander could have
attempted to impeach Ragudo’s testimony through Matsui, who would
have provided testimony “consistent with intoxication.”
At the hearing on Williander’s motion for new trial,
the circuit court acknowledged that “when officers are on injured
leave, they are precluded per HPD policy from appearing in court
to testify,” and noted that the defense did everything it could
to secure Officer Sunada’s attendance. Williander argued that
“there was no replacement witness for [Officer Sunada],” and that
2
Lee held that, to merit a continuance, the defendant must show
that “due diligence has been exercised to obtain the attendance of the
witness, that substantial favorable evidence would be tendered by the witness,
that the witness is available and willing to testify, and that the denial of
the continuance would materially prejudice the defendant.” 9 Haw. App. 600,
604, 856 P.2d 1279, 1282 (1993) (quotation omitted).
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Matsui was not a “comparable witness” because Matsui “did not
have direct contact,” including full visual, smell, and hearing,
with Williander, but rather observed him through the window at 24
Hour Fitness. The State argued that Officer Sunada’s report did
not provide enough contextual detail to show the “exact degree of
[Williander’s] incoherence.” The State also contended that
Officer Sunada was a “mere impeachment witness,” and that the
“denial of a continuance to procure the testimony of an
impeachment witness is not an abuse of discretion.”
The court ultimately denied Williander’s motion for new
trial. In its Findings of Fact, Conclusions of Law, and Order
Denying Defendant’s Motion for New Trial, the court concluded
that Officer Sunada was not present during the robbery, and thus
would not have provided testimony that bears directly upon the
issue of guilt. The court found that the only reason Williander
“sought to procure Officer Sunada’s testimony was to impeach the
credibility of Ragudo’s assertion” that he heard Williander
demand Aihara’s wallet. The court also concluded that Officer
Sunada was unavailable at trial and defense counsel made “all
reasonable efforts” to secure his testimony, but that Officer
Sunada’s unavailability was not good cause for a continuance,
given that Williander “had been granted four prior continuances,
with the April 15, 2015 continuance designated as his last.”
Moreover, the court concluded that Matsui was available to
testify, but that Williander did not call him to testify. Thus,
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the court concluded that it did not abuse its discretion in
denying Williander’s motion to continue, and that Williander’s
right to a fair trial was not denied.
The court sentenced Williander to four years of
probation, $1,078.97 restitution to Aihara for medical expenses,
and thirty days’ imprisonment in addition to the time he had
already served. Williander timely appealed.
B. ICA Proceedings
In Williander’s opening brief before the ICA,
Williander argued that the circuit court erred in denying his
motions to continue trial, motions for mistrial, and motions for
new trial. Williander applied the four factors set forth in
State v. Lee, arguing that these factors supported granting a
continuance.3 In the State’s answering brief, the State argued,
applying the Lee factors, that the court did not abuse its
discretion in denying Williander’s motion for continuance.
In its Summary Disposition Order, the ICA applied the
Lee factors. The ICA found that the first and third Lee factors
were satisfied. However, the ICA determined that Officer
Sunada’s testimony would not have tendered “‘substantial
favorable evidence’” to satisfy the second Lee factor. The ICA
found that Williander’s testimony that he was intoxicated was not
contradicted by the State’s witnesses. Thus, Officer Sunada’s
testimony was not needed in order to impeach the State’s
3
See supra note 2.
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witnesses on the issue of Williander’s state of intoxication.
Additionally, the ICA stated:
Aihara could not understand anything that
Williander said to him. Ragudo did not testify that
Williander did not slur his words, only that when
Williander shouted, Ragudo could hear what Williander
said. Indeed, Ragudo testified that Williander’s
speech was at first “garbled.” Conversely, Officer
Sunada was not present during the offense and could
not directly contradict Aihara and Ragudo’s version of
those events. Moreover, there is no indication
Officer Sunada heard Williander’s speech when
shouting. Thus, Officer Sunada’s testimony could not
have impeached Aihara or Ragudo’s testimony.
The ICA determined that, in any event, under HRS
§ 702-230(2), evidence of Williander’s “self-induced intoxication
was not admissible to negative his state of mind.”
The ICA also concluded that Williander failed to
satisfy the fourth Lee factor regarding material prejudice. The
ICA reasoned again that HRS § 702-230(2) “prevents the use of
self-induced intoxication to negate the requisite state of mind,”
and thus found that the denial of the continuance did not
materially prejudice Williander.
Therefore, the ICA held that the circuit court did not
abuse its discretion in denying Williander a fifth continuance.
In light of its conclusions that Officer Sunada’s testimony was
“not admissible to disprove the requisite intent and at best was
sought for the purposes of impeachment,” the ICA rejected
Williander’s arguments that the circuit court abused its
discretion in denying his motions for a mistrial and a new trial.
Accordingly, the ICA affirmed the circuit court’s conviction and
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probation sentence.
Chief Judge Nakamura dissented, concluding that there
were valid grounds for a continuance to enable Williander to
present Officer Sunada’s testimony because all four Lee factors
were met. Thus, Chief Judge Nakamura concluded that the circuit
court abused its discretion in denying Williander’s motion for a
continuance.
In disagreement with the majority, Chief Judge Nakamura
determined that Williander satisfied the second and fourth Lee
factors. Chief Judge Nakamura reasoned that the only testimony
offered by the State to show that Williander was guilty of
robbery, as opposed to assault, was Ragudo’s testimony that he
heard Williander yelling, “Give me your wallet. Give me your
fucking wallet,” while Williander was punching a man. Chief
Judge Nakamura noted that Aihara stated that he heard a voice,
but could not make out what was said, and had “no recollection of
anyone demanding his wallet before he was assaulted; he never
felt anyone reach into his pocket to try and take his wallet; he
had no recollection of anyone touching his pants anywhere; and he
still had his wallet after the assault.” Additionally, Chief
Judge Nakamura noted that Williander testified that he had
“prodigious” amounts of alcohol and had no recollection of the
charged incident, and that Officer Sunada’s police report stated
that Williander “smelled of alcohol and was slurring his words
and rambling unintelligible verbiage.” Chief Judge Nakamura
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reasoned that Officer Sunada’s observations, as reflected in his
police report, “provided the best and perhaps the only means for
Williander to meaningfully challenge and cast doubt on Ragudo’s
testimony that he heard Williander make a demand for Aihara’s
wallet.”
III. Standards of Review
A. Motion for Continuance
“A motion for continuance is addressed to the sound
discretion of the trial court, and the court’s ruling will not be
disturbed on appeal absent a showing of abuse of that
discretion.” State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279,
1281 (1993). “Generally, to constitute an abuse, it must appear
that the court clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.” State v. Crisostomo,
94 Hawai#i 282, 287, 12 P.3d 873, 878 (2000) (internal quotation
marks, citation, and brackets omitted).
B. Motion for New Trial
As a general matter, the granting or denial of a
motion for new trial is within the sound discretion of
the trial court and will not be disturbed absent a
clear abuse of discretion. . . . The trial court
abuses its discretion when it clearly exceeds the
bounds of reason or disregards rules or principles of
law or practice to the substantial detriment of a
party litigant.
State v. Yamada, 108 Hawai#i 474, 478, 122 P.3d 254, 258 (2005)
(quoting State v. Kim, 103 Hawai#i 285, 290, 81 P.3d 1200, 1205
(2003)).
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C. Motion for Mistrial
The denial of a motion for mistrial is within the
sound discretion of the trial court and will not be
upset absent a clear abuse of discretion. The trial
court abuses its discretion when it clearly exceeds
the bounds of reason or disregards rules or principles
of law or practice to the substantial detriment of a
party litigant.
State v. Lagat, 97 Hawai#i 492, 495, 40 P.3d 894, 897 (2002)
(internal quotation marks and citations omitted).
IV. Discussion
There is one issue before this court:
Whether the ICA gravely erred in holding that the
circuit court did not err in denying Williander’s
Motions to Continue Trial, Motions for Mistrial, and
Motions for New Trial based on defense witness Officer
Sunada’s unavailability.
This court must consider whether the circuit court
violated Williander’s right to compulsory process to obtain
witnesses in his favor by denying Williander’s motion to continue
trial to obtain Officer Sunada as a witness. See State v.
Valmoja, 56 Haw. 452, 454, 540 P.2d 63, 64 (1975).
The due process guarantee of the Federal and Hawaii
constitutions serves to protect the right of an
accused in a criminal case to a fundamentally fair
trial. As relevant here, a fundamental element of due
process of law is the right of compulsory process.
The right to compulsory process affords a defendant in
all criminal prosecutions, not only the power to
compel attendance of witnesses, but also the right to
have those witnesses heard.
Although the right to compulsory process is of
paramount importance in assuring a defendant the right
to a meaningful defense and a fair trial, it does not
guarantee the right to compel attendance and testimony
of all potential witness absolutely. In other words,
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the right is not without just limitations.
State v. Acker, 133 Hawai#i 253, 281, 327 P.3d 931, 959 (2014)
(quotation marks and citations omitted).
Both Williander and the State utilize the Lee test4 in
evaluating whether a motion to continue should have been granted.
In discussing the Lee test, this court has stated:
This court has not explicitly adopted the Lee test.
However, we have often applied some combination of
these factors in evaluating a motion for a continuance
to obtain the testimony of an unavailable witness at
trial. In State v. Valmoja, 56 Haw. 452, 540 P.2d 63
(1975), we held that the trial court abused its
discretion in denying a motion for a continuance where
the defendant exercised due diligence in attempting to
obtain the testimony of the absent witness and the
materiality of the witness’s evidence was apparent. 56
Haw. at 454, 540 P.2d at 64. In State v. Mara, 98
Hawai#i 1, 41 P.3d 157 (2002), we concluded that the
circuit court did not abuse its discretion in denying
the defendant’s request for a continuance where the
defendant failed to show that he was materially
prejudiced by his inability to present the
unidentified witness’s testimony. 98 Hawai#i at
14–15, 41 P.3d at 170–71.
State v. Villiarimo, 132 Hawai#i 209, 223, 320 P.3d 874, 888
(2014).
We conclude that the Lee test goes too far in limiting
the right to compulsory process, thus creating unnecessary
burdens on defendants who wish to exercise this right. For the
reasons presented below, we hold that the relevant factors are:
4
The Lee test includes the following factors: “due diligence has
been exercised to obtain the attendance of the witness, that substantial
favorable evidence would be tendered by the witness, that the witness is
available and willing to testify, and that the denial of the continuance would
materially prejudice the defendant.” 9 Haw. App. at 604, 856 P.2d at 1282.
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(1) whether counsel exercised due diligence in seeking to obtain
the attendance of the witness; and (2) whether the witness
provides relevant and material testimony that benefits the
defendant.
Washington v. State of Texas created the limitation on
the right to compulsory process that the testimony has to be
relevant and material to the defense. 388 U.S. 14, 23 (1967);
see Valmoja 56 Haw. at 454, 540 P.2d at 64. Later cases
clarified that the testimony must benefit the defendant. See
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (to
establish a violation of this right, the defendant must “make
some plausible showing of how [the] testimony would have been
both material and favorable to his defense”); State v. Mitake, 64
Haw. 217, 224, 638 P.2d 324, 330 (1981) (to establish a violation
of this right, the defendant must show “that the testimony denied
the defendant would have been helpful to him [or her]”); State v.
Savitz, 67 Haw. 59, 60–61, 677 P.2d 465, 466–67 (1984); State v.
Diaz, 100 Hawai#i 210, 226, 58 P.3d 1257, 1273 (2002); Acker, 133
Hawai#i at 281, 327 P.3d at 959.5
This court has also held that a defendant seeking a
continuance must make a showing that defense counsel exercised
due diligence in obtaining the attendance of witnesses. See
5
The U.S. Supreme Court explained that the testimony must be
beneficial to the defendant since the Sixth Amendment guarantees a defendant
in a criminal case “compulsory process for obtaining witnesses in his favor.”
Valenzuela-Bernal, 458 U.S. at 867 (quoting U.S. Const. amend. VI (emphasis
added)).
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Valmoja 56 Haw. at 454, 540 P.2d at 64; Mara, 98 Hawai#i at 8-9,
41 P.3d at 164-65.
Accordingly, we hold that the relevant factors to
consider in evaluating whether a motion for continuance should be
granted are: (1) whether counsel exercised due diligence in
seeking to obtain the attendance of the witness; and (2) whether
the witness provides relevant and material testimony that
benefits the defendant.6 These factors protect the defendant’s
right to compulsory process while providing “just limitations” on
the defendant’s ability to obtain witnesses in the defendant’s
favor. See Acker, 133 Hawai#i at 281–82, 327 P.3d at 959–60.
A. Due Diligence
Defense counsel exercised due diligence in seeking to
obtain Officer Sunada as a witness. On June 16, 2015, Officer
Sunada was served with a subpoena for the July 13, 2015 trial.
Officer Sunada was not able to testify at the trial because he
was on injured leave at the time. In Valmoja, this court
concluded that defense counsel exercised due diligence in serving
subpoenas on the absent witnesses at a reasonable period of time
prior to trial. 56 Haw. at 454, 540 P.2d at 64. In contrast,
6
Lee is overruled to the extent that it holds that the following
factors should be utilized in evaluating a motion for continuance: (1)
“substantial favorable evidence would be tendered by the witness”; (2) “the
witness is available and willing to testify”; and (3) “the denial of the
continuance would materially prejudice the defendant.” See Lee, 9 Haw. App.
at 604, 856 P.2d at 1282. As noted above, the relevant standard is whether
the witness will provide relevant and material testimony that benefits the
defendant. And while the availability of the witness might be relevant to the
question of whether the testimony will be beneficial to the defendant, it is
not a distinct, dispositive factor.
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defense counsel in Lee, where the ICA held that the trial court
did not abuse its discretion in denying the continuance, did not
subpoena the potential defense witness. 9 Haw. App. at 604, 856
P.2d at 1282. Thus, Williander’s defense counsel exercised due
diligence by properly subpoenaing Officer Sunada.
B. Relevant and Material Testimony that Benefits Williander
Officer Sunada’s testimony was relevant and material
testimony that benefitted Williander. As an initial matter,
Officer Sunada’s testimony was inadmissible to show self-induced
intoxication to negate Williander’s state of mind. See HRS
§ 702-230; State v. Souza, 72 Haw. 246, 249, 813 P.2d 1384, 1386
(1991) (“[T]he operation of § 702-230 does not deprive a
defendant of the opportunity to present evidence to rebut the
mens rea element of the crime. The statute merely prohibits the
jury from considering self-induced intoxication to negate the
defendant’s state of mind.”). Thus, Officer Sunada’s testimony
was admissible to show that: (1) due to intoxication, Williander
was not physically able to make a verbal demand for Aihara’s
wallet; and (2) to impeach Ragudo’s testimony that Williander
made a verbal demand for the wallet.
Williander agrees with Chief Judge Nakamura’s dissent,
which concluded that Officer Sunada’s testimony provided “the
best and perhaps the only means for Williander to meaningfully
challenge and cast doubt on Ragudo’s testimony.”
The State responds that Officer Sunada’s testimony
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regarding the alcoholic odor coming from Williander would not
provide impeachment evidence of Aihara or Ragudo’s testimony
because Aihara’s testimony--that Williander’s speech was
“garbled” and that he could not “make out what [Williander] . . .
said”--was consistent with Officer Sunada’s testimony that
Williander was “slurring his words and rambling unintelligible
verbiage.”
The State further contends that Officer Sunada’s
testimony “seems to suggest” that he “recognized certain
utterances [Williander] made as words, albeit slurred or making
no sense.” Thus, the State argues that there is no reason to
conclude that Officer Sunada would have opined Williander was
unable to utter, “Give me your fucking wallet,” and that the ICA
did not err in concluding that the testimony was not substantial
favorable evidence for Williander. Therefore, the State argues
that the ICA did not err in concluding that Williander’s
contention that Officer Sunada’s testimony provided Williander’s
only legal defense was without merit.
To determine the importance of Officer Sunada’s
testimony, we must look to HRS § 708-841(1)(a), which states that
a person is guilty of robbery in the second degree when “in the
course of committing theft,” the person “uses force against the
person of anyone present with the intent to overcome that
person’s physical resistance or physical power of resistance.”
Here, the only testimony offered by the State to support a
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finding that Williander was in the course of committing theft
when he exerted force upon Aihara was Ragudo’s testimony that
from across Kapi#olani Boulevard, he heard Williander yell, “Give
me your wallet. Give me your fucking wallet.” Ragudo stated
that while he heard Williander demand the wallet twice, “the
first demand was kind of garbled,” but that the second demand was
clear: “Give me your fucking wallet.”
Aihara testified that during the incident, he “heard a
voice,” but “couldn’t make it out.” Aihara also stated that he
had no recollection of anyone demanding his wallet, reaching into
his pocket to try to take his wallet, or touching his pants.
Given that Ragudo’s testimony was significant evidence
to support the premise that force was used in order to carry out
a theft, Officer Sunada’s testimony was vital to discredit
Ragudo’s credibility. Officer Sunada’s testimony that Williander
was “slurring his words and rambling unintelligible verbiage”
would have been evidence from which Williander could argue that
he was unable to clearly yell the alleged demand. Thus, Officer
Sunada’s testimony could have provided relevant and material
evidence that benefitted Williander if Officer Sunada testified
at trial.
Accordingly, we conclude that, in denying the motion
for continuance, the circuit court violated Williander’s right to
compulsory process.
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C. The Circuit Court Abused its Discretion in Denying
Williander’s Motion to Continue Trial.
By properly subpoenaing Officer Sunada, Williander’s
defense counsel exercised due diligence in seeking to obtain the
witness. Further, Officer Sunada’s observations are relevant and
material testimony that benefits Williander because the
observations provide essential support for perhaps the only
meaningful defense for Williander: that Williander was physically
unable to make a verbal demand for Aihara’s wallet. The denial
of the opportunity to present Officer Sunada as a witness
violated Williander’s right to compulsory process. Therefore, we
conclude that the circuit court abused its discretion in denying
Williander’s motion to continue trial. Accordingly, we also
conclude that the circuit court abused its discretion in denying
Williander’s motions for mistrial and motion for new trial.
V. Conclusion
For the foregoing reasons, we vacate the ICA’s July 26,
2017 judgment on appeal and the circuit court’s September 22,
2015 judgment of conviction and probation sentence, and remand to
the circuit court for further proceedings consistent with this
opinion.
Taryn R. Tomasa /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Donn Fudo for
respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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