State v. McKeown

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAY-2021
08:25 AM
Dkt. 74 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
KYLE MCKEOWN, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NOS. 2FC12-1-0280, 2FFC-18-171)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Defendant-Appellant Kyle O. McKeown (McKeown), appeals
from the April 17, 2018 Order Granting the Plaintiff-Appellee
State of Hawaii's (State) Motion to Dismiss Without Prejudice
(4/17/18 Order) filed in 2FC121000280 (First Case), and the July
31, 2019 Findings of Fact, Conclusions of Law, and Order (7/31/19
Order) filed in 2FFC-XX-XXXXXXX (Second Case), both entered by
the Family Court of the Second Circuit (Family Court).1
On appeal, McKeown contends the Family Court erred by
1) dismissing First Case without prejudice in the 4/17/18 Order;
2) dismissing Second Case without prejudice, rather than with
prejudice, in the 7/31/19 Order, under Hawai#i Rules of Penal
Procedure (HRPP) Rule 48, and (3) dismissing Second Case without
1
The Honorable Richard T. Bissen presided.
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prejudice, rather than with prejudice, in the 7/31/19 Order, for
a speedy trial violation.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
dismiss the appeal from First Case for lack of jurisdiction, and
we vacate and remand for further findings as to Second Case.
Both First Case and Second Case charged McKeown with
the 2012 second-degree murder of his four-year-old son. The
indictment in First Case was filed on June 29, 2012. On April
17, 2018, over five years later, the State filed a Motion to
Dismiss Without Prejudice, citing "pending further investigation"
as the reason for dismissal; the Family Court granted the motion
the same day. On May 23, 2018, McKeown was reindicted for the
same charge, this time along with a co-defendant Grace Lee-
Nakamoto as a principal and/or accomplice.2 On May 15, 2019,
McKeown filed a Motion to Dismiss for Violation of HRPP Rule 48
(Rule 48 motion), and on June 13, 2019, McKeown filed a Motion to
Dismiss for Violation of Constitutional Rights and Speedy Trial
(speedy trial motion) which were both heard on June 19, 2019.
The Family Court, taking judicial notice of the files and records
of both First Case and Second Case, orally granted both motions
dismissing Second Case without prejudice. The Family Court
subsequently filed findings of fact (FOF) and conclusions of law
(COL) in its 7/31/19 Order.
No jurisdiction over First Case
As to First Case where McKeown appeals from the 4/17/18
Order, we lack jurisdiction. The Family Court entered its order
dismissing First Case on April 17, 2018 without prejudice, and
McKeown did not timely appeal the dismissal. McKeown's August
2
Co-Defendant Grace Lee-Nakamoto's case, in 2FFC-18-000172, remains
pending in the Second Circuit Court.
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29, 2019 Notice of Appeal from the 4/17/18 Order is untimely
because it was filed more than 30 days after the entry of that
order. See Hawai#i Rules of Appellate Procedure (HRAP) Rule
4(b). Under State v. Nicol, 140 Hawai#i 482, 493, 404 P.3d 259,
270 (2017), the Hawai#i Supreme Court held that "a circuit court
defendant may appeal an order dismissing proceedings without
prejudice under HRS § 641-11." Based on Nicol, we reject
McKeown's argument that, "Under Kim, a dismissal of a case
without prejudice pursuant to Hawaii Rules of Penal Procedure
Rule 48 is reviewable in subsequent prosecution," citing State v.
Kim, 109 Hawai#i 59, 60, 122 P.3d 1157, 1158 (App. 2005). Kim
has been superceded by Nicol. See Nicol, 140 Hawai#i at 494
n.12, 403 P.3d at 271 n.12 ("To the extent that the ICA's prior
decisions in State v. Kim, 109 Hawai#i 59, 60, 122 P.3d 1157,
1158 (App. 2005), and State v. Hern, 133 Hawai#i 59, 62 n.5, 323
P.3d 1241, 1244 n.5 (App. 2013), suggest that a circuit court
defendant may not appeal an order of dismissal without prejudice,
they are therefore incorrect."). McKeown claims that Nicol "did
not suggest that such dismissals could not be challenged should
the case be recharged upon conclusion of the recharged case."
This is an unwarranted interpretation of Nicol, and McKeown has
not pointed to any language in Nicol that could fairly support
such an interpretation. Therefore, we lack jurisdiction over the
4/17/18 Order for First Case, and we do not further address this
point of error. See id.Insufficient findings in Second Case
As to the 7/31/19 Order in Second Case, McKeown
contends that the Family Court abused its discretion by granting
both his Rule 48 motion and his speedy trial motion without
prejudice, rather than with prejudice. Much of McKeown's
argument on appeal focuses on the reasons for, and the
circumstances of, two particular periods of delay that McKeown
claims were caused by the State and support a dismissal with
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prejudice: (1) the time period of the State's continuance of
trial from October 7, 2016 to February 6, 2017 during the First
Case proceedings; and (2) the time period between the State's
2018 voluntary dismissal of First Case and reindictment in Second
Case.
With respect to the latter time period, the relevant
dates can be ascertained in the record, and the Family Court also
made a finding about the circumstances of the reindictment in FOF
13.3 With regard to the earlier time period of the State's 2016
trial continuance, however, there are no specific findings on the
dates of, or the reasons for, that continuance in the 7/31/19
Order.
McKeown argues that the Family Court abused its
discretion in evaluating the delay caused by the State's
continuance of trial, when weighing the circumstances-leading-to-
the-delay factor in its Rule 48 dismissal analysis under State v.
Estencion, 63 Haw. 264, 625 P.2d 1040 (1981),4 and the reasons-
3
FOF 13 states:
13. With respect to Defendant's contention that
he may be prejudiced as a result of the State's
reindictment, the Court finds that the Rules of Penal
Procedure allow for a dismissal and refiling when
there's a change of circumstances or a change in the
evidence. Furthermore, the State's reindictment was
not intended to place Defendant in a disadvantageous
position . . . .
4
Under Estencion, trial courts must consider the following factors,
among others, in determining whether to dismiss the case with or without
prejudice: "the seriousness of the offense; the facts and the circumstances
of the case which led to the dismissal; and the impact of a reprosecution on
the administration of this chapter and on the administration of justice."
State v. Fukuoka, 141 Hawai#i 48, 55-56, 404 P.3d 314, 321-22 (2017) (quoting
Estencion, 63 Haw. at 269, 625 P.2d at 1044). With regard to the second
factor of circumstances-leading-to-the-delay, the supreme court has explained
that the court "should focus on the culpability of the conduct that led to the
delay." Id. at 60, 404 P.2d at 326 (internal quotation marks omitted).
"Relevant considerations within this factor may include whether the delay was
caused by the State's neglect or deliberate misconduct." Id. (citations
omitted).
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for-the-delay factor in its speedy trial dismissal analysis under
Barker v. Wingo, 407 U.S. 514 (1972).5 McKeown claims that the
State's delay should have led the Family Court to conclude that
dismissal with prejudice was appropriate, rather than dismissal
without prejudice. Specifically, McKeown asserts that: "[t]he
facts and circumstances that resulted in Rule 48 being violated
were essentially the State's failure to reassign Mr. McKeown's
case to another prosecutor" and that "[b]y requesting more than a
100 day continuance, when 108 includable days had already elapsed
the State caused a Rule 48 violation." McKeown urges that
pursuant to Visintin, the State's "refusal to assign a different
prosecutor to Mr. McKeown's case and/or the failure of the State
to make Mr. McKeown's case a priority supports dismissing the
instant case with prejudice."
In Visintin, the Hawai#i Supreme Court stated that "the
workload of a deputy prosecutor, the election of a new
prosecutor, and court congestion all share common features in
that they are in all but exceptional circumstances recurring,
systemic, foreseeable, and ultimately the government's
responsibility." 143 Hawai#i at 160, 426 P.3d at 384. The
supreme court held that because a prosecutor's workload or
unavailability is a type of "recurring, systemic, foreseeable"
5
A determination of whether a defendant's speedy trial rights
under the federal and state constitutions have been violated requires applying
the four factors of Barker: "(1) length of the delay; (2) reasons for the
delay; (3) defendant's assertion of his right to speedy trial; and (4)
prejudice to the defendant." State v. Visintin, 143 Hawai#i 143, 156, 426
P.3d 367, 380 (2018) (quoting State v. Lau, 78 Hawai#i 54, 62, 890 P.2d 291,
299 (1995) (citing Barker, 407 U.S. at 530)). With regard to the second
factor of reasons-for-the-delay, a "deliberate attempt to delay the trial in
order to hamper the defense should be weighted heavily against the
government." Id. at 159, 426 P.3d at 383. (quoting Barker, 407 U.S. at 531).
"When a defendant contributes in substantial part to the delay, . . . the
second Barker factor weighs in favor of the prosecution." Id. "A more
neutral reason such as negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather
than with the defendant." Id. (internal quotation marks and citations
omitted).
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circumstance that is the State's responsibility, it concluded
that the reasons-for-the-delay factor in the Barker speedy trial
analysis weighed in favor of the defendant. Id.In this case, there is no specific finding on the
State's continuance, nor any FOF or COL regarding the Family
Court's consideration of the role of the State's continuance in
its Rule 48 dismissal analysis under Estencion or speedy trial
dismissal analysis under Barker. In granting McKeown's motions,
the Family Court necessarily concluded that more than 180 days
had passed for Rule 48, and that McKeown's speedy trial right had
been violated. However, there are no findings with dates for the
Rule 48 calculations and exclusions. There are only general
findings (FOFs 6-10) containing a summary of the various delays
and reasons therefor, without dates, as follows:
6. The Court has not observed any malicious conduct by
either party. Neither party has ever engaged in deliberate
misconduct or neglect which would have contributed to a
delay in the proceedings;
7. Mr. Nardi is the fourth defense attorney appointed
by the Court in this case. It is the Court's observation
through no fault of the Defendant, that each time a defense
attorney was appointed as counsel, the case was basically
restarted.
8. The Court also observed that as each new counsel
was appointed, the availability or unavailability of expert
witnesses became an issue as some experts were not available
for at least six months to a year. To the Defendant's
credit most of that time was waived;
9. Since the Court was present for all of the
hearings, it is the Court's observation that the parties
were very much in agreement with the delays and continuances
that were occurring for whatever advantage each side may
have gained from it;
10. With respect to the current counsel's allegation
that the State somehow intentionally moved slowly in
providing documents to the defense, it is the Court's
observation that at the time discovery was being requested
and provided between the parties, there were [sic] no
counsel complaining or alleging that the State was not in
compliance or was intentionally stalling. It is the Court's
observation that the parties appeared to be in agreement
with the pace at which the trial was proceeding[.]
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In determining that the second Estencion factor of circumstances-
leading-to-the-delay was "satisfied," the Family Court concluded
in COLs 6 and 7 that:
6. With respect to the second factor in Estencion,
relevant considerations may include whether the delay was
caused by the State's neglect or deliberate misconduct.
United States v. Bert, 814 F.3d 70, 80 (2d Cir. 2016).
7. As noted above, neither party has ever engaged in
deliberate misconduct or neglect which would have contributed
to a delay in the proceedings. Moreover, it was the Court's
observation that the parties were very much in agreement with
the delays and continuances that were occurring for whatever
advantage each side may have gained from it. Therefore, the
second factor in Estencion has been satisfied.
HRPP Rule 12(e) requires a court to state its
"essential findings on the record" where factual issues are
involved in determining the motion. State v. Hutch, 75 Haw. 307,
330, 861 P.2d 11, 23 (1993) (internal quotation marks omitted).
"An HRPP Rule 48(b) motion to dismiss, by its very nature,
involves factual issues." Id. HRPP Rule 48(c) mandates that the
court exclude certain time periods from its computation in
determining whether the 180-day period has run. Id. at 330-31,861 P.2d at 23. "Before the court may conclude as a matter of
law that any of the excluded time periods set forth in HRPP 48(c)
have been established, it must first make the appropriate FOF."
Id. at 331, 861 P.2d at 23. Pursuant to HRPP Rule 48(c)(3), "the
court must find whether any period of delay resulting from a
continuance was granted at the request or with the consent of the
defendant or his or her counsel," before concluding that any
resulting period of delay is excludable. Id. (citing State v.
Miller, 4 Haw. App. 603, 606-07, 671 P.2d 1037, 1040 (1983)).
In their briefing on appeal, the parties assume the
dates and the reasons for the State's 2016 continuance as a
given. Neither side has provided the transcript for the relevant
continuance hearing, which appears to have been held on October
12, 2016. The record contains an Order Granting State's Motion
to Continue Trial filed November 2, 2016, that reflects that
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trial was continued to February 6, 2017; however, the order does
not indicate whether the time was charged to the State, or not,
and whether any objection to the continuance was lodged by
McKeown under HRPP Rule 48(c)(3). The State's 2016 continuance
was argued at the June 19, 2019 hearing on the motions to
dismiss, but the Family Court made no specific finding on this
continuance, or the reason for this continuance, and we cannot
tell whether and how it was considered by the court in its
evaluation of the Estencion and Barker factors. Because the
parties do not agree that the delay caused by the prosecutor was
inexcusable and foreseeable under Visintin, and assuming arguendo
it was, whether this reason for delay would support a dismissal
with or without prejudice -- the current record is "inadequate to
permit meaningful review of the trial court's exercise of
discretion[.]" Hern, 133 Hawai#i at 61, 323 P.3d at 1243.
The parties in their briefings do not dispute the
Family Court's finding of the total time and total excludable
number of days set forth in FOF 3 of the 7/31/19 Order, which
states:
3. From the time of Defendant's initial charge of
Murder in the Second Degree in the District Court to
Defendant's most recent jury trial date set for May 20,
2019, approximately two thousand five hundred forty-four
(2,544) days have elapsed. Approximately two thousand one
hundred eighty-eight (2,188) days of the 2,544 days are
excluded pursuant to Rule 16 of the Hawaii Rules of Penal
Procedure. Based on the above figures, the parties have
conceded that the time restriction pursuant to Rule 48 of
the H.R.P.P. has been exceeded by approximately one hundred
eighty (180) days[.]
While the parties agree to the number of excludable days, no
finding provides the dates for the excludable and includable days
to explain how those were calculated, and which side was
responsible, if any, for those delays. There is no finding that
states the specific number of days Rule 48 was exceeded by; FOF 3
only states that the rule was "exceeded by approximately one
hundred eighty (180) days." Adding to the confusion, McKeown
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uses various calculation figures in his briefs, and does not
reference the sources of the defense's number(s).6 By contrast,
the State does not include any calculation figures in its brief.7
Because the 7/31/19 Order lacks sufficient detail, there are
references to court minutes to establish various dates of delay
in the briefs, which is not a proper use of court minutes.8
The lack of specificity in the Family Court's findings
creates an "inordinate burden" on this court to conduct "a
searching review of the record" to decipher the parties' dates
and calculations, to determine whether the trial court abused its
discretion. Hern, 133 Hawai#i at 61, 323 P.3d at 1243. The
6
In the Opening Brief (OB), McKeown states, "the Family Court
properly held that a violation of Rule 48 occurred where at least 360
includable days had passed." The 7/31/19 Order does not contain a 360
includable days figure. While FOF 3 does not provide this calculation, if one
subtracts the 2,188 excludable days from the 2,544 total days elapsed, the
figure is 356 includable days and not the 360 includable days figure McKeown
uses throughout his OB, on pages 10, 11, 15, 19, and 23. McKeown also sets
forth a timeline of dates and Rule 48 computations in his brief, and states:
"Thus, at least 344 (108 + 113 + 74 + 49 = 344) of more than 360 includable
days of delay had nothing to do with appointment of new counsel or
unavailability of experts." Again, no such figures appear in the 7/31/19
Order that is the subject of this appeal, and McKeown does not provide
citations in the record where these numbers can be found. In the Reply Brief,
at pages 4, 9, and 10, McKeown uses a different figure of "356" includable
days rather than the "360" includable days figure he used in his OB. McKeown
also uses a figure of "187" includable days: "The reasons for the final 187
includable days of delay have been discussed in length above and in McKeown's
OB, and are incorporated herein."
7
The State does not include any figures in its Answering Brief
(AB), and only references an approximate figure on page 13 as follows: "The
State calculated that approximately six months could not be excluded."
8
The State references court minutes throughout its AB to establish
dates and events, at pages 2, 3, 4, 10, 16, but minutes are not evidence, and
are solely for the court's use. See State v. English, 68 Haw. 46, 52, 705
P.2d 12, 16 (1985) (holding that "[t]hough the substance of the court's
decision is captured in the minutes of court proceedings kept by the clerk who
attended the hearing, they do not substitute for the requisite written
document; they are merely 'prepared for the court's own use.' [Rules of the
Circuit Courts of the State of Hawai#i (RCCH)] Rule 27."). RCCH Rule 27 and
its parallel family court rule, Hawai#i Family Court Rules (HFCR) Rule 77.1,
both identically provide that: "[t]he court shall cause minutes to be prepared
for its own use." (Emphasis added).
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Supreme Court has held that it is improper for this court to
assume this burden and attempt to discern non-existent findings
which must be determined by the trial court as the factfinder.
See Visintin, 143 Hawai#i at 157-58, 426 P.3d at 381-82(disapproving of this appellate court's evaluation of the four
Barker factors where the lower court had not stated any findings
or conclusions as required by HRPP Rule 12(e) for a speedy trial
motion, and the lower court had only relied on a HRPP Rule 48
motion in denying Visintin's motion to dismiss). For these
reasons, we must vacate and remand for further findings,
including further proceedings as the Family Court may deem
necessary.
Therefore, IT IS HEREBY ORDERED that the appeal from
the Order Granting the State of Hawai#i's Motion to Dismiss
Without Prejudice filed April 17, 2018, in the Family Court of
the Second Circuit in 2FC121000280, is dismissed for lack of
appellate jurisdiction.
IT IS FURTHER ORDERED that the Findings of Fact,
Conclusions of Law, and Order filed July 31, 2019, in the Family
Court of the Second Circuit in 2FFC-XX-XXXXXXX, is vacated, and
this case is remanded for further proceedings consistent with
this Summary Disposition Order.
DATED: Honolulu, Hawai#i, May 28, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Matthew Nardi
(Law Office of Matthew Nardi) /s/ Katherine G. Leonard
for Defendant-Appellant Associate Judge
Renee Ishikawa Delizo /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
County of Maui
for Plaintiff-Appellee
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