State v. Abregano.Â

*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
11-DEC-2015
09:25 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
SCOTT A. ABREGANO, Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-CR. NO. 12-1-01963)
DECEMBER 11, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINIONS OF THE COURT
Part I (By: Recktenwald, C.J., with whom Nakayama, McKenna,
Pollack, and Wilson, JJ., join)
Part II (By: McKenna, J., with whom Pollack and Wilson, JJ.,
join, and Recktenwald, C.J., dissenting separately, with whom
Nakayama, J., joins)
PART I: HAWAI#I RULES OF PENAL PROCEDURE RULE 48
The central issue is whether the family court erred in
finding that a delay due to the trial judge’s illness was
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
excluded as “good cause” from the calculation of the time for
commencing defendant’s trial under Rule 48 of Hawai#i Rules of
Penal Procedure (HRPP).
Defendant Scott A. Abregano was charged with violation
of a protective order, under which Abregano was the respondent
and his wife, KA, was the petitioner.1 Before Abregano’s trial
began, the date of the trial was continued for one month because
the trial judge was ill. Although HRPP Rule 482 requires that a
1
Specifically, Abregano was charged with violating HRS § 586-11
(Supp. 2012) which provides, in relevant part: “When an order for protection
is granted pursuant to this chapter, a respondent or person to be restrained
who knowingly or intentionally violates the order for protection is guilty of
a misdemeanor.”
2
HRPP Rule 48 (2015) (“Dismissal”) provides, in relevant part:
(b) By Court. Except in the case of traffic offenses
that are not punishable by imprisonment, the court
shall, on motion of the defendant, dismiss the charge,
with or without prejudice in its discretion, if trial
is not commenced within six months:
(1) from the date of arrest if bail is set or
from the filing of the charge, whichever is
sooner, on any offense based on the same conduct
or arising from the same criminal episode for
which the arrest or charge was made; or
(2) from the date of re-arrest or re-filing of
the charge, in cases where an initial charge was
dismissed upon motion of the defendant; or
(3) from the date of mistrial, order granting a
new trial or remand, in cases where such events
require a new trial.
Clauses (b)(1) and (b)(2) shall not be
applicable to any offense for which the arrest
was made or the charge was filed prior to the
effective date of the rule.
(c) Excluded Periods. The following periods shall be
excluded in computing the time for trial commencement:
(continued...)
2
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
(...continued)
(1) periods that delay the commencement of trial
and are caused by collateral or other
proceedings concerning the defendant, including
but not limited to penal irresponsibility
examinations and periods during which the
defendant is incompetent to stand trial,
pretrial motions, interlocutory appeals and
trials of other charges;
(2) periods that delay the commencement of trial
and are caused by congestion of the trial docket
when the congestion is attributable to
exceptional circumstances;
(3) periods that delay the commencement of trial
and are caused by a continuance granted at the
request or with the consent of the defendant or
defendant’s counsel;
(4) periods that delay the commencement of trial
and are caused by a continuance granted at the
request of the prosecutor if:
(i) the continuance is granted because of
the unavailability of evidence material to
the prosecution’s case, when the
prosecutor has exercised due diligence to
obtain such evidence and there are
reasonable grounds to believe that such
evidence will be available at a later
date; or
(ii) the continuance is granted to allow
the prosecutor additional time to prepare
the prosecutor’s case and additional time
is justified because of the exceptional
circumstances of the case;
(5) periods that delay the commencement of trial
and are caused by the absence or unavailability
of the defendant;
(6) the period between a dismissal of the charge
by the prosecutor to the time of arrest or
filing of a new charge, whichever is sooner, for
the same offense or an offense required to be
joined with that offense;
(7) a reasonable period of delay when the
defendant is joined for trial with a codefendant
as to whom the time for trial has not run and
there is good cause for not granting a
severance; and
(continued...)
3
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
criminal defendant be tried within six months of the earlier of
his or her arrest or indictment, this continuance resulted in
Abregano’s trial not beginning until March 12, 2013--fourteen
days after the six-month period expired. Before trial began,
Abregano filed a Rule 48 motion to dismiss, which the family
court denied based upon its conclusion that the period of delay
due to the trial judge’s illness was excluded from the HRPP Rule
48 period because it constituted “good cause” for delay under
HRPP Rule 48(c)(8).
We conclude that under the circumstances in this case,
the family court erred in finding that the trial judge’s illness
constituted good cause to exclude one month under HRPP Rule 48.
Accordingly, we vacate the judgment on appeal of the Intermediate
Court of Appeals (ICA) and the family court’s judgment of
conviction and sentence, and remand to the family court to decide
whether to dismiss Abregano’s charges with or without prejudice.
Because this issue is dispositive, we do not address the other
issues raised by Abregano in his appeal except as noted below.
I. Background
A. Pre-trial Proceedings
On August 30, 2012, Abregano was arrested for violating
a protective order. Abregano was charged as follows:
(...continued)
(8) other periods of delay for good cause.
4
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
On or about the 30th day of August, 2012, in the City
and County of Honolulu, State of Hawai#i, SCOTT A.
ABREGANO did intentionally or knowingly violate the
Order for Protection issued in FC-DA No. 12-1-6011 on
the 17th day of January, 2012 by the Honorable Lanson
K. Kupau, Judge of the Family Court of the First
Circuit, State of Hawai#i, pursuant to Chapter 586 of
the Hawai#i Revised Statutes, thereby committing the
offense of Violation of an Order for Protection in
violation of Section 586-5.5 and Section 586-11(a) of
the Hawai#i Revised Statutes.
Abregano pleaded not guilty and requested a jury trial.
The State calculated that the deadline for Abregano’s trial under
Hawai#i Rules of Penal Procedure (HRPP) Rule 48 was February 26,
2013, so the court set Abregano’s trial for January 14, 2013. On
January 14, 2013 the parties appeared in family court before
Judge Jeanette Castagnetti. The State and Abregano both stated
that they were ready for trial, and the court scheduled the trial
to commence the next day. The parties appeared before the family
court on January 15, 2013 and declared they were ready for trial.
The court continued the trial until February 11, 2013 “due to
court congestion.” Neither party objected to this continuance.
On February 11, 2013, the parties appeared before the
family court and both declared they were ready for trial.
However, Judge Castagnetti continued the trial until March 11,
due to her illness:
As I informed the attorneys earlier during another
matter, notwithstanding that both sides are declaring
ready for trial, having gone through the part of this
morning’s calendar call, uh, the court feels that it’s
not going to be able to proceed to trial this week.
It’s apparent to me that I’m coming down with a flu
bug, and so I’m going to continue this matter due to
the court’s unavailability for trial this week.
5
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
So that means for you, Mr. Abregano, your next
calendar call setting will be on March 11th at 8:30.
Although Abregano did not formally object to this
continuance, the following exchange occurred between Abregano’s
counsel and the court:
[DEFENSE COUNSEL]: And, Your Honor, it is my
understanding that you won’t make any finding with
respect to Rule 48; right?
THE COURT: Correct.
[DEFENSE COUNSEL]: So any objection would not be
relevant at this point?
THE COURT: Well, you can -- I mean we’ll note that
both sides are ready. And then, um, obviously there
will be no waiver of Rule 48 speedy trial by defense
given the circumstances, so we can note that as well.
[DEFENSE COUNSEL]: Thank you, Your Honor.
On March 5, 2013, Abregano filed a “Motion to Dismiss
for Violation of HRPP Rule 48, and Speedy Trial.” Abregano
argued that the Rule 48 six-month period began running on
August 30, 2012, the date of his arrest, that six months had
already elapsed by March 5, 2013, and that the reasons for
continuance beyond the six-month period did not fall into any of
the excluded periods provided by Rule 48. Abregano argued that
for periods of delay caused by court congestion to be excluded
under Rule 48, there must be “exceptional circumstances,” which
require a showing that the congestion “deviat[ed] from the norm.”
Abregano argued that such congestion was not present here.
Abregano also argued that the illness of the judge does
not constitute “exceptional circumstances,” because it is not a
6
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
“unique, nonrecurring event.” Abregano also contended that delay
due to a judge’s illness is not “good cause” because it does not
amount to a “substantial reason which affords a legal excuse.”
According to Abregano, his charges should have been dismissed
with prejudice.
On March 11, 2013, the parties appeared in the family
court.3 The court heard the parties’ arguments on Abregano’s
motion to dismiss, and denied the motion, ruling that the
continuance due to Judge Castagnetti’s illness extended the Rule
48 trial deadline by one month to March 26, 2013:
[DEFENSE COUNSEL]: In this case, Your Honor, this
matter came before the court on February 11, 2013. At
that time the court continued all the cases because
the court was ill. She said she was ill and
unavailable. Um, the defense believed that that is
not a reason that Rule 48 should be told [sic]. It
doesn’t fall within any of the exceptions under
Subsection 48, 48B or 48C, Your Honor.
THE COURT: Isn’t there a catch-all provision?
[DEFENSE COUNSEL]: Good cause? Is that what the
court is referring to?
THE COURT: Yes.
[DEFENSE COUNSEL]: Good cause has been defined by the
court as, um, I have it in my motion, substantial
reason which -- substantial reason which affords a
legal excuse. And under State v. Extencion [sic] the
supreme court indicated there’s no substantial reason
for delay when in that case the State lacked
facilities to test the evidence and the crucial report
that was missing that was received late and there was
a shortage of experienced prosecutors. In this --
THE COURT: Well, is there a case that says the
judge being sick is not good cause?
3
The Honorable Dean E. Ochiai presided over this hearing and all
subsequent proceedings in this case.
7
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
[DEFENSE COUNSEL]: No, Your Honor. But as in this
case we have to make a prima facie case indicating
that Rule 48 – uh, that there was a triggering event
where Rule 48 was violated. Then the state has to
make, um -- has to negate the burden or show -- has to
meet its burden of indicating that Rule 48 had not yet
run. In this case it is not exceptional
circumstances. It is not good cause. Merely because
one judge in Circuit Court is ill when there are 21
other judges, there are replacement judges. There
are, um –
THE COURT: No. I disagree with you one hundred
percent. There are no replacement judges. And it’s
just like you guys. When your client shows up and
says I want P.D. Stanley who is my attorney, we
routinely continue it so that we can protect the
procedural rights of the defendant to say, yes, you
have an assigned public defender. The court’s going
to honor that.
If Judge Castagnetti was sick, she was sick.
That’s not something that happens every day. I think
that’s good cause. I’m going to rule March, 26, ‘13
is the Rule 48 date. So we’ll pass this case. Put it
in the queue.
The family court then set the trial to commence the
next day, on March 12, 2013.
B. Trial
Abregano’s jury trial commenced on March 12, 2013, with
Judge Ochiai presiding. The State presented its opening
statement, contending that the evidence would demonstrate that
Abregano had violated the protective order by coming too close to
his stepdaughter, HP, who was one of the “protected persons”
under the protective order, during a softball game in which HP
was playing. Abregano, in his opening statement, acknowledged
that Abregano’s estranged wife (KA), was the “petitioner” under
the protective order, and that Abregano was prohibited from
8
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
coming within 100 feet of KA or 100 yards of KA’s work or home.4
Abregano also contended, however, that the evidence would show
that no term of the protective order prohibited Abregano from
coming within 100 feet of HP or 100 yards of HP’s school or home.
KA testified to the following. On January 17, 2012, KA
petitioned for an order of protection in Family Court before
Judge Kupau. The protective order designated KA as the
petitioner and Abregano as the respondent. HP was also “covered”
under the order. When the protective order was issued, Mr.
William, a staff member of Adult Client Services, read the order
aloud to Abregano. Abregano stated that he did not understand
the order, so Judge Kupau read the order aloud, and Abregano then
stated that he understood and signed the proof of service.
When, during Abregano’s trial, the State questioned KA
as to what Judge Kupau had told HP and Abregano about contact
between the parties under the protective order, the following
exchange occurred:
[STATE]: Okay. Um, what did [Judge Kupau] -- what
did he tell you and the defendant about contact
between parties?
[DEFENSE COUNSEL]: Objection. Hearsay. This is
hearsay.
THE COURT: Mr. Prosecutor, does the document not
4
In section B, titled “contact between parties,” the protective
order provided that “[t]he respondent is prohibited from coming or passing
within 100 yards of any residence or place of employment or school of the
Petitioner” and “[t]he Respondent is prohibited from coming or passing within
100 feet of the Petitioner at all other neutral locations.” (Emphases added).
9
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
speak for itself? It is in evidence.
[STATE]: All right. Um, then let’s specifically
address Points 3 and Points 4 in Section 3B --
THE COURT: All right.
[STATE]: -- ‘cause that deals with contact between
parties.
[STATE]: [KA], um, Section 3 says “The respondent is
prohibited from coming or passing within 100 yards of
any residence or place of employment or school of the
petitioner. The respondent must not violate this
order even if the petitioner invites the respondent
over.”
[DEFENSE COUNSEL]: Objection. Is that a question?
THE COURT: I think that is part of the question. So
overruled at this time.
[STATE]: Do you remember Judge Kupau going over that
portion Point 3B3 with you in open court and the
defendant in open court?
[KA]: Yes.
[STATE]: Okay. Now does 3 -- did he tell you 3B3,
that section that I just read to you, does that apply
-- did he tell the defendant and you that that applies
only to you or to -- I mean -- or to you and the other
people covered under the order of protection?
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Okay. Sustained.
[STATE]: Okay. For the contact between parties
section, did Judge Kupau say that it went over -- that
it covers both -- just you or you and the other people
on the order for protection?
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Sustained.
[STATE]: Okay.
THE COURT: Mr. Prosecutor, isn’t this covered on Page
1 of Exhibit 1?
[STATE]: Okay.
THE COURT: No, I’m just asking. I don’t mean to pre-
empt your questioning, but isn’t it covered on Page 1?
10
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
[STATE]: Yes. Yes, Your Honor. You are correct.
THE COURT: Well, it’s in evidence. If you want to
ask her who’s covered, I think you can publish that
portion of the exhibit which is in evidence if you
desire.
[STATE]: Okay. So just to be clear, um, [KA], in
addition to yourself as the petitioner that’s covered
under this order for protection, um, again there’s
three other people covered under this order; right?
[DEFENSE COUNSEL]: Objection. Leading.
THE COURT: Overruled.
[KA]: Yes.
[STATE]: Okay. So then who are those three people
in addition to yourself covered under this order?
[KA]: Uh, my daughter [HP], uh, my son . . . and our
youngest daughter . . . .
[STATE]: Okay. Thank you, [KA].
KA testified that on August 30, 2012, KA was at HP’s
softball game at HP’s high school. HP told KA that Abregano was
at the game, and then KA saw Abregano, who she estimated was
around thirty to forty feet away from where KA was seated. KA
then called 911.
HP testified to the following. On August 30, 2012, she
was playing in a softball game at her high school. When HP was
jogging to the fence, she saw Abregano closer than a football
field away from her, and felt nervous, so she told her coach and
then KA that Abregano was present. When HP was walking to the
bathroom during the game, she heard her name being called and
recognized Abregano’s voice, although she did not turn to look at
who was calling her name.
11
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
After HP testified, Abregano moved for judgment of
acquittal. Abregano argued that the protective order did not
prohibit him from coming to HP’s school because HP was not listed
as a petitioner but as an additional protected person. Abregano
acknowledged that the protective order prohibited him from
contacting specifically enumerated persons, which included HP,
but argued that whether he had attempted to contact HP was the
only issue that should go to the jury. The court denied the
motion and made the following ruling from the bench:
[Defense counsel], I have issued orders for protection
myself in the District Court. When I say “other
protected persons,” they have the same meaning as “the
petitioner” in the court’s eyes. So -- otherwise they
would not be listed as “other protected persons.”
I’ve had situations in which people came in claiming
to be other protected persons but they were not listed
on the order for protection as other protected
persons, so the court was powerless to do anything
about it.
So as far as the court is concerned, other
protected persons stand in the same shoes as the
petitioner in this case. So if that’s your only
basis, I’m going to flatly deny the motion for
judgment of acquittal.
Abregano also objected to the judge’s statements to the
prosecutor in the presence of the jury which, according to
Abregano, suggested to the jury that the identity of the
individuals covered by the protective order was already in
evidence on page 1 of exhibit 1. Abregano moved for a mistrial,
and the family court denied his motion:
[DEFENSE COUNSEL]: I do object to the court talking
with the prosecutor during the trial and telling him -
- indicating to him where certain things in the
document may be. I do believe in front of the jury
12
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
when the jury is watching it is prejudicial.
THE COURT: Okay. You have preserved your record.
That document -- the court was commenting on a
document that was already received into evidence.
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: You did so in front of the jury
and you were talking specifically to the prosecutor.
And in that case we do believe that that shows that
there is some camaraderie between –
THE COURT: Watch yourself. Watch yourself very
carefully before you make allegations. The court was
facilitating the use of this document for a witness
who was on the stand.
[DEFENSE COUNSEL]: I understand, Your Honor, but in
front of the jury. The jury was watching that
exchange. They were watching you in -- I’m sorry,
Your Honor. I have to make my record before the
record goes up.
THE COURT: You can make your record, but choose your
words carefully.
[DEFENSE COUNSEL]: You were --
THE COURT: Okay.
[DEFENSE COUNSEL]: -- talking to the prosecutor while
in front of the jury with respect to the order and you
were telling where on the order things were. This is
specifically prejudicial in this case because the
order itself, as you can see our entire defense is
that he did not know that HP was a -- was a petitioner
as HP is not listed. So by the court indicating, oh,
it’s on Page 1, the first paragraph, the court is
telling the jury in addition to the prosecutor that my
entire argument (inaudible).
THE COURT: Ms. Stanley, the document speaks for
itself. Had you attempted to argue that these people
were not protected persons under this order for
protection issued by Judge Kupau in your closing
argument, I would shut you down to say that is a
misstatement of the law and a misstatement of this
document even if I had to call Judge Kupau to come in
here and clarify this. So don’t –
[DEFENSE COUNSEL]: Your Honor, that is –
THE COURT: Don’t try to confuse the issue here. This
was already in evidence, and the court merely was
13
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
saying where it is so that questioning of the witness
could be facilitated so that we wouldn’t be here for
two hours groping in the dark to get to the same
place. Okay. So –
. . . .
[DEFENSE COUNSEL]: And the defense does move for a
mistrial.
THE COURT: Well, that’s denied also.[5]
After Abregano testified in his own defense, Abregano
again moved for judgment of acquittal, which the court denied.
The jury found Abregano guilty, and the family court
sentenced him to two years probation with the conditions of
forty-eight hours incarceration, completion of the domestic
violence intervention and parenting programs, and compliance with
the terms of the protective order. Abregano timely filed a
notice of appeal.
5
Abregano argues in his application for writ of certiorari that the
family court’s comments were improper and warrant a new trial because they
constituted an improper comment upon the evidence. Specifically, Abregano
takes issue with the family court’s comment that the identity of the persons
covered by section III(B)(3) of the protective order was “covered on page 1 of
Exhibit 1,” since Abregano’s defense was that section III(B)(3) did not apply
to HP. However, as set forth below, we resolve this appeal on the HRPP Rule
48 issue. We note, however, that judicial comments that may rationally be
perceived by a jury as being a comment on the evidence may constitute
reversible error. See Hawai#i Rules of Evidence Rule 1102 (1993) (“The court
shall instruct the jury regarding the law applicable to the facts of the case,
but shall not comment upon the evidence. It shall also inform the jury that
they are the exclusive judges of all questions of fact and the credibility of
witnesses.”) (emphasis added). Such errors can be avoided by directing the
comment to counsel at the bench or when the jury is not present.
Further, we note that when counsel attempts to make an argument,
the court must allow counsel a fair opportunity to state the argument for the
record. Here, on more than one occasion, the court appeared to interject and
thereby prevented defense counsel from fully expressing her arguments in
support of Abregano’s motions for acquittal and new trial.
14
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
C. Appeal to the ICA
In his appeal, Abregano argued that the family court
erred in denying Abregano’s Motion to Dismiss for violation of
HRPP Rule 48.
Abregano argued that the “good cause” provision under
HRPP Rule 48(c) is not a “catch-all” provision, and that the
court has a duty of due diligence to ensure that a defendant’s
trial begins within the six months required by Rule 48. Abregano
argued that to constitute “good cause,” a reason for delay must
be a “substantial reason which affords a legal excuse,” and that
for court congestion to excuse a delay, there must be
“exceptional circumstances” caused by “unique, non-recurring
events.” Abregano argued that Hawai#i Revised Statutes (HRS) §§
603-3 and 603-41 require there to be twenty-five circuit court
judges in the first circuit, and allow for substitute retired
judges or judges from other circuits in the case of court
congestion. Therefore, according to Abregano, the lack of
findings by the trial court as to why no replacement judges were
available to replace Judge Castagnetti during her illness meant
the court “failed to fulfill its duty of due diligence” to find a
replacement. Abregano also contended that the length of delay
resulting from Judge Castagnetti’s illness--four weeks--was
unnecessarily long.
The ICA affirmed the family court’s judgment of
15
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
conviction. The ICA, relying on two federal cases, United States
v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977), and United States v.
Ferris, 751 F.2d 436, 441-42 (1st Cir. 1984), held that a trial
judge’s illness is properly excludable under the “good cause”
provision of HRPP Rule 48. The ICA disagreed with Abregano that
the family court had any duty of due diligence to find a
replacement judge, but stated that even if it did, the court in
this case made efforts to hear Abregano’s case expeditiously.
Abregano timely filed an application for writ of
certiorari.
II. Standard of Review
This court reviews a trial court’s denial of HRPP Rule
48 motion to dismiss under both the “clearly erroneous” and
“right/wrong” tests:
A trial court’s findings of fact (FOFs) in deciding an
HRPP 48(b) motion to dismiss are subject to the
clearly erroneous standard of review. An FOF is
clearly erroneous when, despite evidence to support
the finding, the appellate court is left with the
definite and firm conviction that a mistake has been
committed. However, whether those facts fall within
HRPP 48(b)’s exclusionary provisions is a question of
law, the determination of which is freely reviewable
pursuant to the “right/wrong” test.
State v. Samonte, 83 Hawai#i 507, 514, 928 P.2d 1, 8 (1996)
(quoting State v. Hutch, 75 Haw. 307, 328-29, 861 P.2d 11, 22
(1993)).
III. Discussion
Because Judge Castagnetti continued Abregano’s trial
16
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
for one month due to her illness, this court must determine
whether that illness constituted an excluded period of delay as
“good cause” under HRPP Rule 48(c)(8) and, specifically, whether
a four-week delay was reasonable under the circumstances of this
case.
Abregano argues that in the event of a trial judge’s
illness or court congestion, the family court has a duty of due
diligence to find a replacement judge. Abregano thus argues that
it was error for the family court to deny his HRPP Rule 48 motion
to dismiss without making any findings as to whether any
alternative judges were available. For example, Abregano argues
that the family court made no findings that “none of the other
twenty-four circuit court judges . . . [were] available” or that
“a family district court judge could not have been assigned to
sit as a family court judge . . .” Abregano also argues that
even if Judge Castagnetti’s illness justified the exclusion of
some time from the Rule 48 period, it did not warrant delay for
as long as four weeks.
We conclude that although a trial judge’s illness may
constitute good cause for some period of delay, under the
circumstances of this case, where there is an absence in the
record of any attempt to find a replacement judge or reassign
Abregano’s case, there was no good cause to exclude a four-week
period.
17
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
HRPP Rule 48 (b) provides, in part: “the court shall,
on motion of the defendant, dismiss the charge, with or without
prejudice in its discretion, if trial is not commenced within six
months: (1) from the date of arrest if bail is set or from the
filing of the charge, whichever is sooner[.]” HRPP Rule 48(c)
describes periods that are excluded from the computation of time
for the commencement of trial. These include HRPP Rule 48(c)(2):
“periods that delay the commencement of trial and are caused by
congestion of the trial docket when the congestion is
attributable to exceptional circumstances,” and (c)(8): “other
periods of delay for good cause.”
HRPP Rule 48(c) does not give any guidance on what good
cause means, but this court has held that the good cause
provision “is provided to take care of unanticipated
circumstances,” State v. Gillis, 63 Haw. 285,288, 626 P.2d 190,
192 (1981), and that good cause means “a substantial reason that
affords legal excuse,” State v. Senteno, 69 Haw. 363,368, 742
P.2d 369, 373 (1987) (citing Estencion, 63 Haw. at 267, 625 P.2d
at 1043). However, “Rule 48(c)(8) is not to be used to excuse a
lack of diligence on the part of the government to comply with
Rule 48.” Gillis, 63 Haw. at 288, 626 P.2d at 193.
Although this court has never addressed the question of
whether a trial judge’s illness is good cause for delay of a
trial, we have found good cause for a delay of five months where
18
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
the defendant was without local counsel following the grant of
the defendant’s counsel’s motion to withdraw. See Senteno, 69
Haw. at 368, 742 P.2d at 373. While not a finding of “good
cause,” this court has also affirmed the exclusion of a period of
delay of ninety-seven days under HRPP Rule 48(c)(2) after finding
that a shortage of judges due to two resignations and “a marked
increase in jury demands” was a “unique, nonrecurring event,”
which constituted “exceptional circumstances” under the rule.
See State v. Baron, 80 Hawai#i 107, 114, 905 P.2d 613, 620
(1995).
This court has found there was not good cause where the
prosecutor had an increased workload because, while not
anticipated, the increased workload was not reasonably
unforeseeable. Hanawahine, 69 Haw. at 630-31, 755 P.2d at 469-
70. In addition, there was no good cause where the delay was
caused by the State’s late filing of the complaint and
difficulties in securing the attendance of witnesses, because
these were not “unanticipated circumstances.” Gillis, 63 Haw. at
288, 626 P.2d at 192. There was also no good cause where the
State argued that the delay was caused by
an absence of facilities in Hawai#i County for the
police criminalist to conduct a test of the evidence,
requiring the evidence to be sent to Honolulu for
testing; that the written report of the criminalist
was not completed until November 24, 1978, and did not
reach the prosecutor until January 3, 1979 . . . .
and a shortage of experienced prosecutors in the
Hawai#i County prosecutor’s office.
19
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Estencion, 63 Haw. at 267, 625 P.2d at 1042.
Accordingly, a period is excludable as good cause under
HRPP Rule 48(c)(8) if the events causing the delay are
unanticipated and not reasonably foreseeable. The illness of a
judge such that the court is unavailable is an unanticipated
event. Although it may be foreseeable that judges will, on
occasion, become ill, when this might happen is generally not
reasonably foreseeable.
Courts in other jurisdictions have found that the
illness of a trial judge may constitute good cause for delay.
See State v. Hoyt, 806 P.2d 204, 208 (Utah App. 1991) (there was
no constitutional violation where the trial was delayed one
hundred twenty-four days due, in part, to the judge’s illness);
Commonwealth v. Thompson, 701 A.2d 1367, 1371 (Pa. 1997) (a
backlog caused by the judge’s illness and a data entry error by
the court constituted good cause to justify a delayed
sentencing); Evans v. State, 742 So.2d 1205, 1208 (Miss. Ct. App.
1999) (a continuance due to the judge’s illness did not count
towards the statutory speedy trial deadline); Lane, 561 F.2d at
1078 (there was no abuse of discretion where the court denied a
Federal Rules of Criminal Procedure Rule 48(b) motion to dismiss
because the delay was due to “institutional factors” such as the
“illness of a judge and the unavailability of a replacement”);
20
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Ferris, 751 F.2d at 441-42 (under the federal Speedy Trial Act,
18 U.S.C. § 3161, “a relatively short period of delay due to a
judge’s illness . . . should be treated as a continuance whether
or not a continuance order issues. The delay due to the judge’s
illness is, therefore, properly excludable time”).
We thus conclude that the illness of a trial judge may
constitute “good cause” for some period of delay. However, even
in the two cases relied upon by the ICA in this case, Lane and
Ferris, there were limitations on the amount of time that could
justifiably be excused as “good cause.” In Lane, for example,
the court noted that the delay was justified not just by the
judge’s illness, but by the judge’s illness “and the
unavailability of a replacement.” Lane, 561 F.2d at 1078.
Similarly, in Ferris, the First Circuit noted that “a relatively
short period of time” may be excluded from the speedy trial
period due to a judge’s illness. Both of these courts thus
appeared to recognize that, even if a judge’s illness may
constitute “good cause” for delay, it is not without limits. We
must therefore determine what those limits are, and whether they
were exceeded by the delay in this case.
Whether a period of time is excludable as “good cause”
under HRPP Rule 48(c)(8) is dependent on the facts of each case.
See State v. Herrera, 63 Haw. 405, 409, 629 P.2d 626,629 (1981)
(“‘Exceptional circumstances,’ like ‘good cause,’ is dependent on
21
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
the facts of each case. The evidence, based upon all legitimate
inferences and deductions, facts admitted or known, and matters
which judicial notice may properly be taken, supports [the trial
judge’s] findings. Findings of the trial court will not be
disturbed unless clearly erroneous.”). Similarly, the
determination of how long a period can be excluded due to a trial
judge’s illness is dependent on the facts of each case. As the
Lane and Ferris courts recognized, the delay cannot be
indefinite, and it cannot exceed the amount of time necessary for
the sick judge to recover, or for an alternative judge to be
found.
Thus, to determine whether a period of time was
properly excluded under HRPP Rule 48(c)(8), a reviewing appellate
court must consider several factors.
First, we must consider the reason for the delay and
whether it was unanticipated and not reasonably foreseeable.
See, e.g., Gillis, 63 Haw. at 288, 626 P.2d at 192 (stating that
the good cause provision of HRPP Rule 48 “is provided to take
care of unanticipated circumstances”).
Second, we must consider the period of absence due to
the illness of the judge. See, e.g., Ferris, 751 F.2d at 441-42(holding that under the federal Speedy Trial Act, “a relatively
short period of delay due to a judge’s illness” is “properly
excludable time”) (emphasis added).
22
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Third, we must consider the efforts taken and stated on
the record to find a replacement judge or reassign the case.
See, e.g., State v. Bellah, 252 P.3d 357, 363 (Or. Ct. App. 2011)
(holding that the trial court erred in denying the defendant’s
motion to dismiss because the record did not “disclose how the
particular length . . . of delay was required by the lack of
available judges or whether the court or the state made a
reasonable effort to reset the case for an earlier trial date”);
State v. Lee, 228 P.3d 609, 612-13 (Or. Ct. App. 2010)
(illustrating the kind of evidence that is helpful to assess the
delays that are due to a lack of available judges: of the
possible alternative judges, the record demonstrated that “one
judge was screened from the case, one had show-cause hearings
scheduled, a third had a doctor’s appointment, and a fourth
already had a primary trial scheduled.” The court held in part
that the defendant’s right to speedy trial was not violated
because “the reasons for each portion of the delay are well-
established in the record.”)
Finally, we must consider the complexity of the case
and whether it was such that it was not reasonable to ask an
alternative judge to step in on short notice. See, e.g.,
Williams v. State, 651 S.E.2d 674, 677-78 (Ga. 2007) (“The delay
that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy
23
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
charge.”) (quoting Barker v. Wingo, 407 U.S. 514 530-31 (1972));
United States v. Murillo, 288 F.3d 1126 (9th Cir. 2002) (holding
that the defendant’s right to a speedy trial was not violated by
a thirteen-month delay given the complexity of the case, which
involved an appeal in a complex murder case in which the death
penalty was a consideration).
Regarding the first factor, the reason for the delay,
we conclude that a trial judge’s illness is sufficiently
unforeseeable to warrant some period of delay. The issue here is
thus how long a delay was warranted, which requires consideration
of the other three factors.
The family court ruled that Judge Castagnetti’s illness
justified an exclusion of a period of four weeks from Abregano’s
HRPP Rule 48 trial date calculation, extending his trial deadline
from February 26, 2013 to March 26, 2013. Judge Castagnetti’s
illness may have constituted good cause to delay the trial for a
few days, even if no action was taken to attempt to find a
replacement judge.6 Here, however, Abregano’s trial was delayed
for four weeks. The record is silent on whether Judge
Castagnetti actually remained ill for that period, but even if
she did, when the trial is delayed for that long due to the
6
We note that in the present case, on February 11, 2013, Judge
Castagnetti continued Abregano’s trial for one month, until March 11, 2013.
Abregano’s HRPP Rule 48 trial deadline was February 23, 2011. Thus, on
February 11, 2013, Judge Castagnetti could have continued Abregano’s trial for
up to twelve days without implicating the HRPP Rule 48 deadline.
24
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
judge’s illness, and the case is not complex, efforts must be
made to reassign the case to avoid delay. Abregano’s case was
not complex enough to warrant waiting four weeks for the same
judge to become available again. This case involved a simple
misdemeanor charge with uncomplicated facts and did not involve
extensive pre-trial evidentiary motions or hearings.7 As such,
the family court was obligated to make efforts to reassign the
case to a different judge.
On March 11, 2013, when the parties appeared before the
family court after the one-month continuance due to Judge
Castagnetti’s illness, the court heard Abregano’s arguments
regarding his motion to dismiss on HRPP Rule 48 grounds.
Abregano argued that a trial judge’s illness does not fall under
any of the HRPP Rule 48 exceptions, and that the good cause
exception did not apply here because there were twenty-one other
circuit court judges that could have replaced Judge Castagnetti.
The family court rejected Abregano’s arguments:
THE COURT: No. I disagree with you one hundred
percent. There are no replacement judges. And it’s
just like you guys. When your client shows up and
says I want P.D. Stanley who is my attorney, we
routinely continue it so that we can protect the
procedural rights of the defendant to say, yes, you
have an assigned public defender. The court’s going
to honor that.
If Judge Castagnetti was sick, she was sick.
That’s not something that happens every day. I think
7
When there has been extensive pre-trial evidentiary rulings by the
same judge, this would weigh in favor of excluding a longer period of delay in
a HRPP Rule 48 calculation due to the judge’s illness.
25
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
that’s good cause. I’m going to rule March, 26, ‘13
is the Rule 48 date. So we’ll pass this case. Put it
in the queue.
(Emphasis added).
Thus, the only evidence in the record that any efforts
were made to find a replacement judge or reassign Abregano’s case
was the family court’s comment that “[t]here are no replacement
judges.” However, rather than demonstrating that efforts had
been made to reassign the case, this exchange appears to indicate
that no efforts had been made and that the court believed it was
under no obligation to make any efforts. The family court
compared the situation to that in which proceedings are continued
to allow a defendant to be represented by a particular public
defender who is temporarily unavailable. However, the illness of
a trial judge and the temporary unavailability of a public
defender are not analogous. There is no reason, in a non-complex
case such as this, that the defendant should have to wait for the
same judge to become available beyond the defendant’s HRPP Rule
48 trial deadline. Rather, efforts should be made to minimize
the trial delay as much as possible by, at minimum, inquiring
into the availability of other judges. Further, such efforts
should be stated on the record to allow meaningful review on
appeal.8
8
At minimum in this case, the family court should have explained
the circumstances that led it to the conclusion that “there are no replacement
(continued...)
26
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Without any additional facts or representations in the
record, the family court’s statement lacked the necessary basis
to support a finding that there were no other judges available.
Thus, we conclude that the record is not sufficient to support a
finding of good cause to exclude a four-week delay due to the
trial judge’s illness. As a result, the family court erred in
denying Abregano’s HRPP Rule 48 motion to dismiss.
IV. Conclusion
For the foregoing reasons, we vacate the judgment on
appeal of the ICA and the family court’s judgment of conviction
and sentence, and remand the case to the family court to decide
whether to dismiss Abregano’s charge with or without prejudice.9
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
(...continued)
judges.” In cases where this court has affirmed the exclusion of periods of
time under HRPP Rule 48 as “exceptional circumstances” due to court
congestion, we have required some explanation as to what those circumstances
are. For example, in Baron, this court affirmed the circuit court’s exclusion
of a ninety-seven day period for “exceptional circumstances” because, in
denying the Rule 48 motion, the circuit court explained that there was a lack
of replacement judges because of “the reassignment of two judges; the
retirement of one judge; the temporary reassignment of one judge to another
court; the vacations of potential replacement judges; and a marked increase in
jury trial demands.” 80 Hawai#i at 110, 114, 905 P.3d at 616, 620. However,
no such explanation was given in the present case.
9
“[T]he court shall, on motion of the defendant, dismiss the
charge, with or without prejudice in its discretion, if trial is not commenced
within six months.” HRPP Rule 48(b) (emphasis added).
27
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
PART II: IMPROPER COMMENT ON THE EVIDENCE
The second question in Abregano’s application for
certiorari asks:
Whether the ICA gravely erred in holding that the
[family court] did not assume the role of an advocate
for the prosecution and did not exhibit bias when [the
family court] improperly commented on the evidence.
The dissent states that it is not necessary to reach
the second question because we have remanded for a new trial on
the first question. The right to an impartial judge is a due
process right under article I, section 5 of the Hawai#i
Constitution, however, and a judge should not express opinions as
to the merits of a case in front of a jury, State v. Silva, 78
Hawai#i 115, 117, 118, 890 P.2d 702, 704, 705 (App. 1995)
(citations omitted), abrogated on other grounds by Tachibana v.
State, 79 Hawai#i 226, 900 P.2d 1293 (1995). In addition, it is
not unusual for our appellate courts to provide guidance on
remand. See, e.g., State v. Basham, 132 Hawai#i 97, 112, 319
P.3d 1105, 1120 (2014) (providing guidance on remand regarding
claims of prosecutorial misconduct); Nelson v. Univ. of Haw., 97
Hawai#i 376, 385 n.6, 38 P.3d 95, 104 n.6 (2001) (addressing
evidentiary issues to provide guidance to the court on remand);
State v. Pacheco, 96 Hawai#i 83, 88, 26 P.3d 572, 577 (2001)
(vacating conviction and remanding for new trial based on
prosecutorial misconduct and addressing additional issues on
28
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
erroneously admitted evidence, ineffective assistance of counsel,
and choice of evils defense “[i]n order to provide guidance to
the circuit court and the parties on remand. . . .”); State v.
Davia, 87 Hawai#i 249, 252, 953 P.2d 1347, 1350 (1998) (vacating
conviction and remanding for new change of plea hearing based on
district court’s failure to establish that defendant’s plea was
knowing and voluntary, but addressing defendant’s remaining
points of error “in order to provide guidance to the district
court and the parties on remand”).
We therefore address the second question. The trial
transcript passage in Section I(B) provides the background:
[STATE]: Okay. Um, what did [Judge Kupau] –- what did he
tell you and the defendant about contact between parties?
[DEFENSE COUNSEL]: Objection. Hearsay. This is hearsay.
THE COURT: Mr. Prosecutor, does the document not speak for
itself? It is in evidence.
[STATE]: All right. Um, then let’s specifically address
Points 3 and Points 4 in Section 3B –
THE COURT. All right.
[STATE]: –- ‘cause that deals with contact between parties.
[STATE]: [KA], um Section 3 says[,] “The respondent is
prohibited from coming or passing within 100 yards of any
residence or place of employment or school of the
petitioner. The respondent must not violate this order even
if the petitioner invites the respondent over.”
[DEFENSE COUNSEL]: Objection. Is that a question?
THE COURT: I think that is part of the question. So
overruled at this time.
[STATE]: Do you remember Judge Kupau going over that portion
of Point 3B3 with you in open court and the defendant in
open court?
29
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
[KA]: Yes.
[STATE]: Okay. Now does 3 –- did he tell you 3B3, that
section that I just read to you, does that apply –- did he
tell the defendant and you that that applies only to you or
to –- I mean –- or to you and the other people covered under
the order of protection?
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Okay. Sustained.
[STATE]: Okay. For the contact between parties section, did
Judge Kupau say that it went over –- that it covers both -–
just you or you and the other people on the order for
protection?
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Sustained.
[STATE]: Okay.
THE COURT. Mr. Prosecutor, isn’t this covered on Page 1 of
Exhibit 1?
[STATE]: Okay.
THE COURT: No, I’m just asking. I don’t mean to preempt
your questioning, but isn’t it covered on Page 1?
[STATE]: Yes. Yes, Your Honor. You are correct.
THE COURT: Well, it’s in evidence. If you want to ask her
who’s covered, I think you can publish that portion of the
exhibit which is in evidence if you desire.
[STATE]: Okay. So just to be clear, um, [KA], in addition
to yourself as the petitioner that’s covered under this
order for protection, um, again, there’s three other people
covered under this order; right?
[DEFENSE COUNSEL]: Objection. Leading.
THE COURT: Overruled.
[KA]: Yes.
[STATE]: Okay. So then who are those three people in
addition to yourself covered under this order?
[KA]: Uh, my daughter [HP], uh, my son ... and our youngest
daughter....
[STATE]: Okay. Thank you, [KA].
30
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
In front of the jury, in the passage quoted above, the
family court suggested that the State was correct in arguing that
Abregano could be found to have violated Sections III(B)(3) and
III(B)(4) of the protective order because “isn’t this covered on
Page 1 of Exhibit 1.”
This suggestion by the family court was an improper
comment on the evidence under Hawai#i Rules of Evidence (“HRE”)
Rule 1102 (1993), which provides that “[t]he court shall instruct
the jury regarding the law applicable to the facts of the case,
but shall not comment upon the evidence.” We have observed that
“the Commentary on Rule 1102 unequivocally states that the
present rule precludes comment on the evidence in all cases,
without limitation.” State v. Hauge, 103 Hawai#i 38, 59, 79 P.3d
131,152 (2003) (internal brackets, quotation marks, and emphasis
deleted). Thus, the prohibition against judicial comment on the
evidence applies throughout the proceedings and is not limited to
jury instructions.10 Id. The rationale for HRE Rule 1102 is
that judicial comment on the evidence risks placing the judge in
the role of an advocate, and that analysis of the evidence is an
advocate’s function. Addison Bowman, Hawai#i Rules of Evidence
Manual § 1102-1 (2014); State v. Nomura, 79 Hawai#i 413, 417, 903
10
The family court later explained that “the court was commenting on
a document that was already received into evidence,” and that, “[t]he court
was facilitating the use of this document for a witness who was on the stand.”
31
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
P.2d 718, 722 (App. 1995).
The record does not support Abregano’s assertion,
however, that the family court’s improper comment was based on
the court assuming the role of an advocate for the prosecution or
that it constituted an exhibition of bias; rather the record
suggests that the family court’s improper comment was based on a
misunderstanding of what was prohibited by the protective order.
For example, in denying Abregano’s motion for judgment of
acquittal, the family court stated its belief that “other
protected persons stand in the same shoes as the petitioner[.]”
Contrary to the family court’s commentary before the jury and its
statement during its ruling on the motion for judgment of
acquittal, under the protective order, other protected persons do
not stand in the same shoes as the petitioner, and Sections
III(B)(3) and III (B)(4) do not apply to conduct between Abregano
and HP.
A redacted copy of the protective order is attached to
this concurring opinion as “Attachment 1,” with redactions noted
in brackets. The protective order identifies Abregano as the
“Respondent.” In and below the caption, it refers to KA as the
“Petitioner,” giving the “Year of Birth” of the “Petitioner.”
Below the “PETITIONER IDENTIFIERS” on the first page, HP is
included as an “Other Protected Person” with a “YOB” or “Year of
Birth.” Below the “Other Protected Person” information, the
32
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
protective order identifies “Respondent’s Relationship to
Petitioner” as “MARRIED.” Obviously, this cannot be HP.
The protective order is replete with additional
references to the “Petitioner” that make it clear that the only
“Petitioner” is KA. For example, persons present at the court
hearing on the protective order are identified at the top of page
2, and notes that “Petitioner” was present. HP was not at the
hearing. Section III(D)(1) regarding “Temporary Custody and
Visitation” provides that the “Petitioner” shall have temporary
legal and physical custody of the parties’ minor children.
The State asserts that Abregano violated Sections
III(B)(3) and (4) of the protective order by contacting HP, and
before the jury, the family court suggested that the State’s
assertion was correct. These sections, however, only prohibit
conduct by Respondent as to the “Petitioner,” or KA. A review of
the protective order makes clear that the “Petitioner” is KA, and
HP is an “Other Protected Person.” The protective order’s only
prohibition on conduct between Abregano and HP appears in Section
III(B)(8), which prohibits Abregano from “contacting” HP.
As this court recently reiterated in State v. Guyton,
135 Hawai#i 372, 351 P.3d 1138 (2015), a case alleging a
violation of a district court restraining order:
[A] prerequisite to punishing a person for violating an
injunction order . . . is a court order that is “clear and
unambiguous,” so as to allow a person of ordinary
intelligence to “ascertain from the four corners of the
33
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
order precisely what acts are forbidden[.]” This
requirement is no more than a rule of reason because, as it
is for statutes, fairness and due process dictate that a
court order must be sufficiently particular and definite so
as to clearly identify the conduct that it prohibits.
135 Hawai#i at 377-78, 351 P.3d 1143-44 (citations omitted).
Thus, in addition to making an improper comment on the
evidence, the family court erred in suggesting before the jury
that the State correctly asserted that Abregano could be found to
have violated Sections III(B)(3) and III(B)(4) of the protective
order and in stating during its ruling on Abregano’s motion for
judgment of acquittal that “other protected persons stand in the
same shoes as the petitioner in this case.” The record
indicates, however, that the family court’s improper comment
before the jury was based on a mistaken understanding of what was
prohibited by the protective order. As a remand has already been
ordered for the Rule 48 violation, we need not address whether
any remedy is necessary for the improper comment.11
James S. Tabe /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Loren J. Thomas /s/ Michael D. Wilson
for respondent
11
We therefore do not consider the extent of the prejudice by the
improper comment on the evidence, although we note that Communication No. 1
from the jury inquired as follows: “Does the term ‘Petitioner’ include the
‘Petitioner Identifiers’ on page 1 of Exhibit 1? We also do not address the
sufficiency of the evidence as this issue was not raised on appeal. See State
v. Davis, 133 Hawai#i 102, 120, 324 P.3d 912, 930 (2014) (“[A] reviewing court
is required under article I, section 10 of the Hawai#i Constitution to address
a defendant’s express claim of insufficiency of the evidence prior to
remanding for a new trial based on a defective charge.”).
34