Deangelo v. Souza. ( 2022 )

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Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
17-NOV-2022
09:19 AM
Dkt. 17 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
SCOTT DAVID DEANGELO, Petitioner,
vs.
THE HONORABLE KEVIN A. SOUZA,
Judge of the Circuit Court of the First Circuit,
State of Hawaiʻi, Respondent Judge.
and
STATE OF HAWAIʻI, Respondent.
SCPW-XX-XXXXXXX
ORIGINAL PROCEEDING
(CASE NO. 1CPC-XX-XXXXXXX)
NOVEMBER 17, 2022
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY EDDINS, J.
This petition for an extraordinary writ challenges the
constitutionality of Hawaiʻi Rules of Penal Procedure (HRPP) Rule
12(g).
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Rule 12(g) allows a judge who dismisses a case based on a
“defect in the institution of the prosecution or in the charge”
to order the defendant held for a “specified time” while the
State re-files charges. Up until recently, courts have rarely
invoked Rule 12(g). But the present wave of dismissals in cases
where the State did not obtain an indictment from a grand jury
has prompted a surge in the rule’s use.
Scott Deangelo is the defendant in one such case. After
the court dismissed charges against him, it ordered under Rule
12(g) that Deangelo remain in custody for 90 days, while the
State sought a grand jury indictment. Deangelo argues that Rule
12(g) violates the Fourth Amendment of the United States
Constitution, which protects against unreasonable seizures, and
Hawaiʻi Revised Statutes (HRS) § 803-9(5) (Supp. 2021), which
requires an “arrested person” to be taken “before a qualified
magistrate for examination” within 48 hours of arrest. While
Deangelo’s case has been mooted by his indictment eleven days
later, his challenge to Rule 12(g) presents an issue of public
importance.
We hold that, when probable cause has been found after a
preliminary hearing but the case is dismissed without prejudice
due to a defect in the institution of the prosecution, Rule
12(g) permits a court to hold a defendant in custody or continue
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bail for a specified time that is reasonable under the
circumstances.
I.
The police arrested Defendant-Petitioner Scott Deangelo
without a warrant on February 8, 2022 for second-degree murder.
The next day, the district court made a judicial determination
of probable cause for the extended restraint of liberty and set
bail at $500,000. On February 17, the court confirmed its
probable cause and bail findings. After a two-day preliminary
hearing on February 25, a different district court judge found
probable cause to believe that Deangelo committed the charged
felonies and sent the case to circuit court.
On March 10, Deangelo was arraigned without a grand jury
indictment. The circuit court confirmed bail at $500,000. In
response to the State’s motion to either hold Deangelo without
bail or increase bail, the circuit court ordered on June 6 that
Deangelo be held without bail. The court based its order on the
seriousness of Deangelo’s charged crimes and its finding that
Deangelo posed a danger to the community and was a flight risk.
On August 25, Deangelo moved to dismiss the case because he
had not been indicted in accordance with HRS § 801-1 (2014).
See State v. Obrero, 151 Hawaiʻi 472, 517 P.3d 755 (2022). The
State conceded the motion, but requested that the court dismiss
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the case without prejudice. Citing Rule 12(g), the State also
asked the court to hold Deangelo in custody without bail.
On October 10, the circuit court dismissed Deangelo’s case
without prejudice and denied all pending motions as moot. But
under HRPP Rule 12(g), the court ordered that Deangelo remain in
custody without bail for 90 days. In the order, the circuit
court made detailed factual findings. These findings reviewed
the impact of Covid-19 on grand jury proceedings over the past
two and a half years. The court observed that for fourteen of
the last thirty months, grand juries were unavailable in the
First Circuit. The court pointed out that when the State
charged Deangelo via complaint, grand jury proceedings were not
taking place in the First Circuit. In light of this, the
court’s previous no-bail finding, and based on “the offenses
alleged, the possible punishment upon conviction, Defendant’s
financial ability to afford bail, the serious risk that
Defendant will flee, and the serious risk that Defendant poses a
danger to any person or the community,” the court decided to
hold Deangelo in custody.
By October 16, Deangelo had not yet been indicted. He
filed a petition for an extraordinary writ to this court. His
continued custody under 12(g) violated the Hawaiʻi and United
States Constitutions, as well as HRS § 803-9(5), he argued.
Deangelo wanted to be released.
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Five days later, on October 21, a grand jury indicted
Deangelo on three counts — murder in the second degree, place to
keep a pistol or revolver, and place to keep ammunition. Eleven
days had elapsed since the case’s dismissal.
The parties disagree on whether Deangelo’s indictment has
mooted the court’s 12(g) order holding him in custody for up to
90 days. But both urge us to review the broader issue of Rule
12(g)’s validity, since it is an issue of public interest that
may repeat while evading meaningful judicial review. See Moana
v. Wong, 141 Hawaiʻi 100, 115, 405 P.3d 536, 551 (2017). Because
we agree that the 12(g) issue should be resolved promptly, we
assume the mootness of the order holding Deangelo but go on to
the merits of Deangelo’s statutory and constitutional challenges
to Rule 12(g) itself.
HRPP Rule 12(g) 1 reads:
If the court grants a motion based on a defect in the
institution of the prosecution or in the charge, it may
also order that the defendant be held in custody or that
the defendant’s bail be continued for a specified time
pending the filing of a new charge. Nothing in this rule
shall be deemed to affect provisions of any statute
relating to periods of limitations.
1 The rule, formerly known as Rule 12(b)(5), is a slightly modified
version of Federal R. Crim. P. 12(g). The federal rule provides:
If the court grants a motion to dismiss based on a defect
in instituting the prosecution, in the indictment, or in
the information, it may order the defendant to be released
or detained under 18 U.S.C. § 3142 for a specified time
until a new indictment or information is filed. This rule
does not affect any federal statutory period of
limitations.
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Deangelo contends that Rule 12(g), on its face and as
applied to him, violates HRS § 803-9(5) and the Fourth Amendment
of the United States Constitution. 2
Deangelo argues that when the court dismissed his case, all
proceedings against him terminated, including the prior judicial
determination of probable cause to hold him. So he was like a
person arrested without a warrant. And this person has rights.
First, they have a statutory right under HRS § 803-9(5) to be
charged or brought before a district court judge for a probable
cause determination within 48 hours. Second, they have a Fourth
Amendment and Hawaiʻi constitutional right to a probable cause
finding made before arrest or promptly after it, where promptly
means within 48 hours. Gerstein v. Pugh, 420 U.S. 103, 126
(1975); County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991); Constitution of the State of Hawaiʻi article I, section
7. By empowering judges to hold people in custody after
dismissal for a specified period of time, Deangelo argues that
Rule 12(g) on its face violates both HRS § 803-9(5) and his
constitutional rights against unreasonable seizure. Since a
court rule cannot abridge substantive rights, Rule 12(g) “must
be stricken,” or if upheld, must be capped at 48 hours.
2 Deangelo mentions article I, section 7 of the Hawaiʻi Constitution,
saying if there’s a Fourth Amendment violation, then there’s an article I,
section 7 violation. But Deangelo presents no arguments specific to our
constitution’s Fourth Amendment analogue.
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Not so, says the State. It argues that a person against
whom a judicial determination of probable cause has already been
made is not in the same position as a person who has just been
arrested without that finding. The plain language of HRS § 803-
9(5) governs only a person’s “initial appearance” in court after
an arrest and has no relevance whatsoever to Rule 12(g). As to
Deangelo’s constitutional claims, the State maintains that all
required constitutional procedures were followed — probable
cause to hold Deangelo was found within 48 hours and confirmed
after a preliminary hearing.
II.
The equivalent of Rule 12(g) has existed in federal law
since 1944 and as of today has been adopted by at least 26
states. The rule also has roots in the common law. See Latson
v. State, 146 A.2d 597, 600 (Del. 1958) (observing that the rule
“embod[ies] the practice theretofore existing that on the
dismissal of an indictment the defendant is not automatically
entitled to discharge, and the court may hold him in custody.”)
Yet, courts seldom invoke 12(g). See U.S. v. Powers, 168 F.3d
943, 949 (7th Cir. 1999) (commenting on the “dearth of reported
cases”).
In Dawson v. Lanham, we suggested in passing that the trial
court should have used this rule to hold the defendants in
custody after the court dismissed their indictment. 53 Haw. 76,
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83, 488 P.2d 329, 334 (1971). In his dissent, Justice Abe
pointed out that Rule 12(g) is valid only to the extent that it
does not abridge substantive rights, a question that the Dawson
Court did not consider. Id. at 87 n.4, 488 P.2d at 336 n.4.
Fifty years later, we take up this question.
The Fourth Amendment protects against “unreasonable . . .
seizures.” U.S. Const. Am. IV. It “requires a judicial
determination of probable cause as a prerequisite to extended
restraint of liberty following arrest.” Gerstein, 420 U.S. at
114. That judicial determination, if made after arrest, must be
made promptly. Id. at 125-26. The Supreme Court has held that
determinations made within 48 hours of arrest will generally
satisfy this requirement. McLaughlin, 500 U.S. at 56. HRS
§ 803-9(5) codifies this rule in Hawaiʻi law. Failure to
promptly determine probable cause or a defect in the probable
cause determination itself may render any subsequent custody
unreasonable. See Manuel v. City of Joliet, Ill., 137 S. Ct.
911, 918-19 (2017) (holding that probable cause obtained based
on false police statements renders a seizure unreasonable.)
Here, no one disputes that sufficient probable cause to
arrest and hold Deangelo was found. Also, through a preliminary
hearing a judge determined that probable cause existed to
believe Deangelo had committed the dismissed charges. The
constitutional question turns, then, on whether there was still
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probable cause to hold Deangelo after the court dismissed his
case.
Typically, a dismissal ends the court proceedings, leaving
“nothing further to be accomplished.” State v. Kalani, 87
Hawaiʻi 260, 261, 953 P.2d 1358, 1359 (1998). And we have said
that after dismissal “even if the prosecution is allowed to
recharge the defendant, recharging [them] does not revive the
original case.” Id. at 262, 953 P.2d at 1360. In Kalani,
however, we considered whether a dismissal without prejudice
constituted a final order for the purpose of appeal. Kalani did
not involve a Rule 12(g) order.
Rule 12(g) creates a limited exception to the procedure
that a dismissal completely terminates the original case. If
the court grants a dismissal based on “a defect in the
institution of the prosecution or in the charge,” the rule
allows the judge to hold the defendant in custody (or continue
bail) while the State re-charges. In effect, dismissal paired
with a 12(g) grant resets the proceedings to where they were
before the defective charge or indictment was made. In
Deangelo’s case, that means after a preliminary hearing at which
the court found probable cause.
A “[p]reliminary hearing is for the purpose of determining
whether there is probable cause to warrant holding the accused
for action by the grand jury.” Engstrom v. Naauao, 51 Haw. 318,
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320, 459 P.2d 376, 377 (1969); see also State v. Tominaga, 45
Haw. 604, 609, 372 P.2d 356, 359 (1962) (“The only purpose of a
preliminary hearing is to determine whether there is sufficient
evidence against an accused to warrant his being held for action
by a grand jury.” (citations omitted)). Because grand juries
may take time to convene, the preliminary hearing helps ensure
that a defendant is not unreasonably held before indictment.
Within this framework, a rule like 12(g) does not offend
the Fourth Amendment, article I, section 7, or HRS § 803-9(5),
which duplicates the holding of McLaughlin. We stress that
12(g) is a procedural rule, limited to defects in the charging
process. The rule cannot abridge a substantive right. HRS
§ 602-11 (2016). If, as in City of Joliet, it were discovered
that police had sworn false statements in order to obtain a
probable cause determination, the seizure would be unreasonable.
In that case, custody could not continue without violating the
Fourth Amendment and article I, section 7, and Rule 12(g) could
not change that.
No such defect in probable cause occurred here. The State
charged Deangelo via complaint and a preliminary hearing was
conducted before our clarification that prosecutions based on
complaint and preliminary hearing alone are unlawful under HRS
§ 801-1. See Obrero, 151 Hawaiʻi 472, 517 P.3d 755. By
dismissing the case, the circuit court addressed this defect in
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the institution of the prosecution; by invoking Rule 12(g) the
court ensured that a defendant it believed to be a danger to the
public and a flight risk would remain in custody while the State
sought a grand jury indictment. Custody under these
circumstances abridges no substantive right. 3
From the question of whether Rule 12(g) is constitutional,
we turn to the question of how long a court may hold a defendant
under the Rule.
The plain text of 12(g) does not specify how long a
defendant can be held in custody, only that the time be
“specified.” Several states that have adopted this rule have
embedded specific time limits, ranging from one day to 60 days. 4
Other states have made explicit that the specified time
must be reasonable. 5
Still others have decided that when a prosecution is
dismissed, the defendant must be released. 6
3 The length of custody authorized under 12(g) may not, for example,
abridge a defendant’s right to a speedy trial.
4 See Kan. Stat. Ann. § 22-3208(6) (custody limited to one day after
dismissal); Wyo. R. Prac. & P. 12(i) (48 hours); Wis. Stat. § 971.31(6) (72
hours); Md. Crim. Causes. 4-252(h)(1) (ten days if the crime charged is a
crime of violence, otherwise immediate discharge); Ohio Crim. R. 12(j)
(fourteen days); Iowa R.2.11(7) (20 days); Ky. R. Crim. P. RCr 8.24(2)
(within 60 days or until the discharge of the next grand jury assembled,
whichever is sooner).
5 See Utah R. Crim. P. 12(h); Ala. R. Crim. P. 15.5(a); Fla. R. Crim. P.
R. 3.190(e).
6 See Ariz. R. Crim. P. 16.4(e); Me. R. Crim. P. 12(5); Mont. Code Ann.
§ 46-13-402.
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No court, federal or state, has interpreted the “specified
time” language to mandate a fixed maximum time in all cases.
See, e.g., Esguerra v. State, No. A-8395, 2005 WL 19220, at *3
(Alaska Ct. App. Jan. 5, 2005) (“[T]he time which the State can
hold the defendant before reindicting him must be specified, but
is not limited to ten days.”); Powers, 168 F.3d at 948(declining to rule on what a “specified time” constitutes, but
noting that such an extension potentially “cannot in itself
affect the speedy trial clock”); U.S. v. Silverman, 129 F. Supp.
496, 514 (D. Conn. 1955) (continuing bail for 21 days under the
federal equivalent to 12(g) without discussion).
The rule does not contemplate a universal time limit and
setting one would undermine the trial court’s ability to tailor
its order to the circumstances. We hold only that the time
specified must be reasonable in light of all the circumstances.
Relevant circumstances may include the status of the case (is
the case at the discovery and pretrial motions stage or is trial
imminent?), the unprecedented exigencies of the Covid-19
pandemic, the inability of the State to convene grand juries
during a particular time, the nature and seriousness of the
defendant’s alleged crime(s), the extent to which the defendant
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poses a flight risk and a danger to the community, and the
defendant’s ability to afford bail. 7
The circuit court properly looked to these factors. Since
the State indicted Deangelo before the 12(g) order expired, we
do not find it necessary to determine whether the circuit court
abused its discretion in specifying 90 days.
However, we emphasize that no state that has specified a
deadline to recharge under 12(g) has allowed custody to stretch
beyond 60 days and that most have settled on a far lower number.
We do not foresee any circumstances that will justify custody
longer than 60 days under a 12(g) order. In Deangelo’s case,
despite the grand jury postponements identified by the circuit
court, the State was able to secure an indictment within eleven
days. We expect that this time will continue to decrease as
defendants are lawfully charged.
Jon N. Ikenaga /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Anna Ishikawa /s/ Sabrina S. McKenna
(Loren J. Thomas and
/s/ Michael D. Wilson
Steven S. Tsushima on the
briefs) /s/ Todd W. Eddins
for respondent
7 While Rule 12(g) gives the court the option of holding the defendant in
custody or continuing bail, the court must support either determination with
findings of fact that comply with HRS Chapter 804.
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