Rule 48 Doesn't Take a Sick Day

State v. Abregano (HSC December 11, 2015)
Background. Scott Abregano was charged with violating a protective order in which his wife was the petitioner. Trial was delayed for 30 days due to illness on the part of the trial judge. The judge commented that she could not proceed because she was “coming down with the flu bug.”  Because of the continuance, trial commenced fourteen days after the six-month mark in HRPP Rule 48. Abregano filed a motion to dismiss, but it was denied on the grounds that a sick judge was “good cause” excusing the delay.

At trial, Abregano’s wife testified that she obtained a protective order from the family court prohibiting Abregano from coming within 100 feet from her and his step-daughter or within 100 yards of the step-daughter’s school or home. She then testified that at the daughter’s softball game she saw Abregano and estimated that he was around 30 to 40 feet away from her (the wife). She called 911. The stepdaughter also testified that she saw Abregano at the game and got nervous. She estimated that he was closer than a football field away. After the prosecution rested, Abregano moved for a judgment of acquittal on the grounds that the protective order did not prohibit him from going to the school. The family court denied the motion and commented that the protective order need not mention the stepdaughter because “other protected persons stand in the same shoes as the petitioner in this case.” Abregano was found guilty and he appealed. The ICA affirmed.

Judge’s Illness may be “Good Cause.” “[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: (1) from the date of arrest if bail is set or from the filing of the charge, whichever is sooner[.]” HRPP Rule 48(b). Not all time goes toward those six months. “[P]eriods that delay the commencement of trial and are caused by congestion of the trial docket when the congestion is attributable to exceptional circumstances” and “other periods of delay for good cause” are excluded. HRPP Rule 48(c).

“Good cause” is not defined, but it is designed to “take care of unanticipated circumstances.” State v. Gillis, 63 Haw. 285, 288, 626 P.2d 190, 192 (1981). Good cause must also be “a substantial reason that affords legal excuse.” State v. Senteno, 69 Haw. 363, 368, 742 P.2d 369, 373 (1987). The prosecutor’s increased workload is not “good cause.” State v. Hanawahine, 69 Haw. 630-631, 755 P.2d 466, 469-470 (1988). The HSC summarized the various examples that have come forward over the years and concluded that “a period is excusable 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.” 

But Refusing to Replace the Sick Judge is Not. The HSC was careful to note that a sick judge may be “good cause” for some delay, but not always. In synthesizing cases from other jurisdictions, the HSC identified three factors to help determine if a sick judge and the period of delay constitutes “good cause.” Here are the factors it came up with:

               First, we must consider the reason for the delay and whether it was unanticipated and not reasonably foreseeable.
               Second, we must consider the period of absence due to the illness of the judge.
               Third, we must consider the efforts taken and stated on the record to find a replacement judge or reassign the case.
               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.

Applying these four factors, the HSC held that the delay was not “good cause.” Although the first factor may have been met, a four-week delay was too long, no effort was taken to find a substitute judge, and the case wasn’t that complicated. And so the family court erred in denying the motion to dismiss.

Commenting on Evidence. A majority of the HSC took issue on the trial court’s comments in front of the jury. Due Process demands a fair and impartial judge and a judge should not express opinions as to the merits of a case in front of a jury. State v. Silva, 78 Hawaii 115, 117, 118, 890 P.2d 702, 704, 705 (App. 1995) abrogated on other grounds in Tachibana v. State, 79 Hawaii 226, 900 P.2d 1293 (1995). The HSC zeroed in during the prosecution’s questioning of the wife.

The prosecutor was asking Abregano’s wife when she got the protective order if the judge who issued the order told her that it included persons in addition to her. Abregano’s hearsay objections were sustained. The prosecutor was struggling with this point until the trial court asked if this was “covered on page 1 of Exhibit 1” (the protective order itself). The prosecutor answered in the affirmative. The trial court then suggested “[i]f 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.”

Abregano argued that this was an improper comment on the evidence. The trial court “shall instruct the jury regarding the law applicable to the facts of the case, but shall not comment upon the evidence.”  HRE Rule 1102. It “precludes comment on the evidence in all cases, without limitation.” State v. Hauge, 103 Hawaii 38, 59, 79 P.3d 131, 152 (2003).

The HSC majority didn’t go that far though. It did not hold that this was an improper comment because the trial court was wrongly advocating a position. Instead, it delved deeply into the language of the protective order and pointed out that the trial court was wrong in suggesting that the protective order applied to the stepdaughter. And so the erroneous comment was not because the trial court was correct, but advocating for the prosecution. It was erroneous because the trial court was wrong on the law.


Chief Justice Recktenwald’s Dissent. The CJ agreed that there was a Rule 48 violation. The CJ wrote separately because he disagreed that the HSC should have examined the comment-on-the-evidence argument. He believed that there was no need to address it here and it should be played on out on remand. Justice Nakayama joined.

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