State v. Arroyo ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2022
07:47 AM
Dkt. 91 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
RAFAEL ARROYO, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from the "Court's Findings of Fact, Conclusions of Law and Order
Granting [Defendant-Appellee Rafael Arroyo's (Arroyo)]
Supplemental Motion to Dismiss Indictment" (FOF/COL/Order),
entered on October 11, 2018, by the Circuit Court of the Second
Circuit (Circuit Court).1/ Pursuant to the FOF/COL/Order, the
Circuit Court dismissed the three-count indictment against Arroyo
because the indictment contained a "made[-]up date" for the
events at issue, and because impermissible and incompetent
hearsay evidence presented to the grand jury may have improperly
influenced grand jurors. As to Count 2, for Burglary in the
First Degree in violation of HRS § 708-810(1)(c) (2014) (Burglary
One), the court concluded that Arroyo suffered prejudice as a
result of the deputy prosecuting attorney's (DPA) circumvention
of a prior court order and/or instruction. Accordingly, the
Circuit Court dismissed Count 2 with prejudice and dismissed
Count 1, for Kidnapping in violation of HRS § 707-720(1)(d) and/
1/
The Honorable Peter T. Cahill presided.
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or (e) (2014), and Count 3, for Terroristic Threatening in the
First Degree in violation of HRS § 707-716(1)(e) (2014), without
prejudice.
On appeal, the State contends that the Circuit Court
erred in dismissing: (1) the indictment, "based on the date of
offenses charged"; and (2) the Burglary One charge, "based on the
testimony of the prosecution's investigator." (Formatting
altered.)
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve the
State's contentions as follows and affirm.
(1) The State first contends that the Circuit Court
erred in dismissing the indictment "based on the date of offenses
charged." The State asserts that "[t]his error is reflected in
[FOF] 17 and [COLs] 5, 8, and 9."
FOFs 16 and 17 state:
16. The State conceded that "March 15, 2015" is a
made-up date for purposes of the allegations herein.
17. By making up said date, the [DPA] has effectively
prevented . . . Arroyo from asserting any legitimate alibi
defense under the circumstances, as well as other possible
date-related defenses.
COLs 5, 8, and 9 state:
5. Relative to the Grand Jury proceedings on or about
July 24, 2017, [the DPA] concedes, and the Court concludes
that the Indictment contains a made up date which is not
supported by the testimony and/or evidence at the grand jury
proceeding. The Court further concludes as a matter of law
that this fabrication was made despite, and notwithstanding
prior cautions from the Court, [regarding] the issue of the
date(s) of these alleged offenses.
. . . .
8. Based on the totality of circumstances and the
cumulative effect of the [DPA's] presentation of improper or
incompetent evidence at the Grand Jury proceeding of
July 24, 2017, the Court concludes as a matter of law that
Count 2 shall be dismissed WITH PREJUDICE.
9. Based on the totality of circumstances and
the cumulative effect of the [DPA's] presentation of
improper and/or incompetent evidence at the Grand Jury
proceeding of July 24, 2017, the Court HEREBY
DISMISSES Counts l & 3 herein WITHOUT PREJUDICE.
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"A trial court's ruling on a motion to dismiss an
indictment is reviewed for an abuse of discretion." State v.
Mendonca, 68 Haw. 280, 283, 711 P.2d 731, 734 (1985) (citing
State v. Corpuz, 67 Haw. 438, 440, 690 P.2d 282, 284 (1984)). At
the same time, "[w]e are mindful that dismissal of an indictment
is required only in flagrant cases in which the grand jury has
been overreached or deceived in some significant way." State v.
Wong, 97 Hawai#i 512, 526, 40 P.3d 914, 928 (2002) (citing
Mendonca, 68 Haw. at 283, 711 P.2d at 734; State v. Pulawa, 62
Haw. 209, 215, 614 P.2d 373, 377 (1980)).
The State acknowledged below that the date of the
events alleged in the indictment, "March 15, 2015, is a made up
date; it is an estimate." On appeal, the State explains that the
"'made-up date' [was] used in response to the prior dismissal of
the charges by the trial court when the date of the offenses was
charged as a range of dates." The State also acknowledges that
the complaining witness (CW) "did not specifically testify that
the incident occurred on March 15, 2015." The State argues,
however, that "when placed in context of CW's acknowledgment that
the incident occurred some time in mid-March, the date of the
offenses charged as 'on or about the 15th day of March, 2015' was
not a misrepresentation." In support of its argument, the State
points out that the date of the three charged offenses is not a
material element of those offenses.
The State is correct that "[i]n general, the precise
time and date of the commission of an offense is not regarded as
a material element." State v. Arceo, 84 Hawai#i 1, 13, 928 P.2d
843, 855 (1996). However, neither Arceo nor subsequent cases
construing Arceo involved a date designated in an indictment
which the State subsequently described as a "made up date." See,
e.g., State v. Kealoha, 95 Hawai#i 365, 379, 22 P.3d 1012, 1026
(App. 2000) (ruling that the circuit court was not wrong in
denying the defendant's motion for acquittal where "[t]he instant
indictment designated 'on or about June 13, 1998' as the time
span during which manufacturing occurred [and] [the co-
defendant's] observations for three weeks prior to the search
warrant execution, if believed, were sufficient to prove [the]
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[d]efendant was engaged in manufacturing methamphetamine on or
about June 13, 1998").
Here, the Circuit Court did not base the dismissal of
the indictment on the State's failure to allege the precise date
of the alleged offenses. Instead, as reflected in COL 5, the
Circuit Court based the dismissal in part on the DPA's
concession, and the court's conclusion, that "the Indictment
contains a made up date which is not supported by the testimony
and/or evidence at the grand jury proceeding." The court further
concluded that "this fabrication was made despite, and
notwithstanding prior cautions from the Court, [regarding] the
issue of the date(s) of these alleged offenses." The State
alleges error with respect to FOF 17 and COLs 5, 8, and 9, but
does not present any specific argument as to why the challenged
FOF is clearly erroneous or the COLs are wrong. See Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not
argued may be deemed waived."). The State's argument that the
date is not a material element of the charged offenses sidesteps
the court's conclusions that the "made up date" was not supported
by the evidence at the grand jury proceeding and was alleged
despite prior cautions from the court.
The Hawai#i Supreme Court has explained that "[t]he
circuit court has supervisory power over grand jury proceedings
to insure the integrity of the grand jury process and the proper
administration of justice." Wong, 97 Hawai#i at 523, 40 P.3d at925 (citing In re Moe, 62 Haw. 613, 616, 617 P.2d 1222, 1224
(1980)); see also State v. Joao, 53 Haw. 226, 230, 491 P.2d 1089,
1092 (1971) ("Where a defendant's substantial constitutional
right to a fair and impartial grand jury proceeding is
prejudiced, a quashing of the indictment emanating therefrom is
an appropriate remedy."). On this record, we conclude that the
Circuit Court did not abuse its discretion in dismissing the
indictment based in part on the fact that it contained a "made-up
date" for the events at issue. We further conclude that FOF 17
is not clearly erroneous and COLS 5, 8, and 9 are not wrong.
(2) The State next contends that the Circuit Court
erred in dismissing the Burglary One charge based on the
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testimony of the prosecution's investigator. The State asserts
that "[t]his error is reflected in FOF[s] 19, 20, 21, and 22, and
COL[s] 6, 7, and 8."
FOFs 18 through 22 state:
18. Also at the grand jury proceeding on the matter,
the [DPA] presented one other witness to support the
Indictment . . ., Office of the Prosecuting Attorney
Investigator David Olsten [(Olsten)], who testified
substantively about a court order allegedly prohibiting
. . . Arroyo from a particular property.
19. Investigator Olsten based his testimony on his
purported reading of court minutes.
20. In the instant case, the Court finds Olsten
incompetent to have testified to the contents of a court
order; that court minutes cannot substitute for a court
order pertaining to bail; that Olsten's testimony unfairly
prejudiced [Arroyo] by misleading Grand Jurors that they
could base their findings on court minutes; that the
dismissal of the prior case did not allow the State to
ignore the Court's direction to the parties to meet and
confer concerning the Court taking judicial notice of the
matter.
21. Given the Court's particular attention to this
issue even prior to trial and re-indictment in these
matters, the Court finds that, as it relates to Count 2
(Burglary [One]), [Arroyo] suffered prejudice by the [DPA]'s
failure to meet and confer with defense counsel as ordered
by the Court on or about September 15, 2016.
22. The prejudice arises because by using the Grand
Jury to find probable cause and to return an Indictment, the
State chose a method that by its very nature avoided Court
oversight on an issue that had already been reviewed and
discussed.
COLs 6 through 8 state:
6. Further relative to the Grand Jury proceedings on
or about July 24, 2017, the Court concludes as a matter of
law that [the DPA] presented impermissible and incompetent
hearsay evidence through the testimony of Investigator . . .
Olsten. The Court concludes that the improper testimony may
have improperly influenced grand jurors, and in the context
of the record as a whole, (including the proceedings in
2PC15-10000379) the process was unfair and a denial of
[Arroyo]'s due process rights.
7. The Court further concludes, relative to Count 2
(Burglary [One]), that [Arroyo] suffered prejudice by the
[DPA]'s July 24, 2017 circumvention of this Court's Order
and/or instruction to confer with defense counsel, and to
not present evidence of any Court-ordered stay away orders
as the basis for a Burglary charge. The Court's
instruction, albeit not an order, nonetheless created a duty
upon the State and [Arroyo] to confer on a critical
evidentiary issue, but presentation of the case before the
Grand Jury allowed the State to proceed in secret thereby
depriving [Arroyo] of the right to be heard on an issue the
Court had already ruled upon, i.e. the order for the parties
to "meet and confer."
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8. Based on the totality of circumstances and the
cumulative effect of the [DPA's] presentation of improper or
incompetent evidence at the Grand Jury proceeding of
July 24, 2017, the Court concludes as a matter of law that
Count 2 shall be dismissed WITH PREJUDICE.
The State argues that Olsten's testimony was "competent
hearsay allowable as evidence at the grand jury hearing[,]" but
that even without Olsten's testimony, there was "sufficient legal
and competent evidence for the Grand Jury to find probable cause
for Burglary [One]." The State also argues that the Circuit
Court erred in dismissing Count 2 with prejudice "based on the
State re-indicting Arroyo without first having a 'meet and
confer' with the Defense to formulate a stipulated judicial
notice of the stay-away order."
The State does not indicate where in the record it
raised these issues or otherwise brought them to the attention of
the Circuit Court. See HRAP Rule 28(b)(4). Based on our review
of the record, it appears that the State did not present these
arguments to the Circuit Court: (1) in response to Arroyo's
initial or supplemental motions to dismiss the indictment; (2)
during or after the June 19, 2018 hearing in which the Circuit
Court stated that Olsten was not competent to testify about the
stay-away order,2/ indicated that the court would grant Arroyo's
motion to dismiss, and invited the parties to brief the issue of
whether the dismissal should be with or without prejudice; or (3)
in response to Arroyo's June 27, 2018 memorandum in support of
dismissal with prejudice. The State's arguments are thus deemed
waived. See State v. McDonnell, 141 Hawai#i 280, 295, 409 P.3d
684, 699 (2017) ("Generally, if a party does not raise an
argument at trial, that argument is deemed waived on appeal."
(citing State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947
(2003)); State v. Harada, 98 Hawai#i 18, 30, 41 P.3d 174, 186
(2002) (concluding that the prosecution failed to preserve its
exigent circumstances claim and thus waived it).
2/
The Circuit Court elaborated that Olsten "is simply an
investigator who looks at court minutes." Additionally, after the DPA
explained why he did not submit to the grand jury two orders pertaining to
bail, which contained the stay-away order, the court stated: "I understand the
difficulty of it, but we have already been through this in the trial, number
one, where I already had concerns about it . . . ."
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Even if the above arguments had not been waived, the
Circuit Court did not dismiss Count 2 based solely on the
testimony of the prosecution's investigator. Count 2 was also
dismissed based on the "made-up date" in the indictment. In
addition, the Circuit Court determined in COL 7 that Arroyo had
suffered prejudice resulting from the State's "circumvention of
this Court's Order and/or instruction to confer with defense
counsel, and to not present evidence of any Court-ordered stay
away orders as the basis for a Burglary charge." Prior to the
July 24, 2017 indictment, the Circuit Court had provided specific
instructions concerning the stay away orders, as reflected in
FOFs 5 and 6.3/ Thus, as the Circuit Court stated in FOF 22, by
3/
FOFs 1 through 15, which are unchallenged on appeal and thus
binding on the parties and this court, see State v. Rodrigues, 145 Hawai #i
487, 494, 454 P.3d 428, 435 (2019), state:
1. On or about May 31, 2015, [Arroyo] was arrested
for the matters forming the factual basis for the instant
case.
2. The State charged [Arroyo] with the instant
allegations by way of Felony Information and Non-Felony
Complaint (filed on or about June 3, 2015), initially
averred within counts 7 through 10 in 2PC15-10000379.
3. On September 15, 2016, based on a Motion brought
by [Arroyo], the Court ordered the dismissal of Counts 7,
(Burglary in the 1st Degree allegedly occurring sometime in
mid-March, 2015), and Count 9 (Assault in the 3rd Degree
allegedly occurring sometime in mid-March, 2015), in
2PC15-1000379.
4. On September 15, 2016, the Court also granted a
pretrial Motion to Sever Counts 8, (Unlawful Imprisonment in
the 1st Degree allegedly occurring sometime in mid-March,
2015), and Count 10, (Interference with Reporting an
Emergency or Crime allegedly occurring sometime in
mid-March, 2015).
5. On September 15, 2016, after granting [Arroyo]'s
Motions to Dismiss Counts 7 and 9, as well as to Sever
Counts 8 and 10, the Court specifically ordered counsels to
work together on formulating the wording to be used on any
Judicial Notice to be taken relative to the Burglary charges
at issue, (i.e., to include Count 7)[.]
6. Also during the course of pretrial procedures in
2PC15-1000379, the Court specifically concluded and
instructed the parties accordingly, that the basis for any
"unlawful entry" relative to any Burglary charges would not
be any Court-ordered stay away orders.
7. On June 7th, 2017, the jury returned Guilty
verdicts on the remaining 2 two (Burglary) counts which
(continued...)
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ignoring the court's instructions, "the State chose a method that
by its very nature avoided Court oversight on an issue that had
already been reviewed and discussed." And as stated in COL 7,
Arroyo was "thereby depriv[ed] . . . of the right to be heard on
an issue the Court had already ruled upon, i.e. the order for the
parties to 'meet and confer.'" See also COL 6 (concluding that
"in the context of the record as a whole, (including the
proceedings in [case no.] 2PC15-100003794/) the process was unfair
and a denial of [Arroyo's] due process rights" (footnote added)).
The State does not directly dispute the Circuit Court's findings
3/
(...continued)
proceeded to trial.
8. On June 21, 2017, weeks after the verdict in the
remaining Counts after trial, a Motion to Dismiss Counts 8 &
10 was filed by the state, and subsequently granted by the
Court.
9. No written Order dismissing Counts 7 & 9 appears
in the record.
10. The record is uncertain and perhaps inaccurate
based on either the non-filing or anachronistic filing of
Orders by the parties.
11. On July 24, 2017, [the DPA] presented evidence for
the Grand Jury that then re-indicted . . . Arroyo on what
was originally Counts 7 through 10 in 2PC-1000379.
12. The originally charged Counts 7-10 in the
re-indictment became re-indicted as Counts 1 through 3 in
2CPC17-0000527.
13. Most notably, what was originally averred as Count
8 (Unlawful Imprisonment) was recharged as Count 1 in
2CPC-XX-XXXXXXX, Kidnapping in the 1st Degree.
14. At the Grand Jury proceeding on the matter, the
[DPA] asked a leading question relative to the date of the
alleged incident from its sole witness on the issue:
(Q): Some time in mid-March 2015, at about 10 pm, did
[Arroyo] appear at your front door? (Emphasis added.)
(A) Yes.
15. Based on this testimony, the Grand Jury was
presented with, and returned an Indictment alleging the
events at issue to have occurred on, or about, March 15,
2015.
(Bold typeface omitted.)
4/
See supra note 3; see also State v. Arroyo, No. CAAP-XX-XXXXXXX,
2021 WL 3264458, at *1 (Haw. App. July 30, 2021) (summarizing procedural
history of case no. 2PC15-1-000379).
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and conclusions that Arroyo suffered prejudice as a result of the
State's circumvention of the court's instructions.
On this record, we cannot conclude that the Circuit
Court abused its discretion in dismissing Count 2 with prejudice.
See Wong, 97 Hawai#i at 527, 40 P.3d at 929. We further conclude
that FOFs 19 through 22 are not clearly erroneous and COLs 6
through 8 are not wrong.
For the reasons discussed above, we affirm the "Court's
Findings of Fact, Conclusions of Law and Order Granting
Defendant's Supplemental Motion to Dismiss Indictment," entered
on October 11, 2018, by the Circuit Court of the Second Circuit.
DATED: Honolulu, Hawai#i, June 28, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Renee Ishikawa Delizo, Chief Judge
Deputy Prosecuting Attorney,
County of Maui,
for Plaintiff-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
John F. Parker,
for Defendant-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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