When the Right to Compulsory Process Requires a Continuance

By Benjamin Lowenthal -

State v. Williander (HSC April 4, 2018)
Background. GJ Williander was charged with robbery in the second degree. On the first day of trial, Williander moved for a continuance on the grounds that his witness, Officer Darren Sunada was unavailable to testify. Officer Sunada was the arresting officer and talked to him about the alleged robbery. He argued that his testimony was necessary to establish Williander’s state of mind at the time of the incident. Williander proffered that Officer Sunada would have testified that he met with Williander that night and that he was too drunk to talk or make any sense. This went directly to the issue of whether he could have said anything to the complainant. Despite the best efforts to subpoena the officer, he was unavailable. He was on injury leave for months. The motion was denied.

At trial, the prosecution called the complainant who testified that he was walking on the street one night on Kapiolani Boulevard when he was hit from behind. He could not make out what was said. A bystander testified that he saw the complainant and Williander across the street and heard Williander yell, “Give me your wallet.” “Give me your fucking wallet,” and saw Williander strike the complainant. After the prosecution rested, Williander moved for a continuance again and a mistrial. Both were denied. Williander testified in his own defense. He said that he had no recollection of that night because he drank all afternoon and night. After closing arguments, Williander renewed his motion for mistrial and that too was denied. Williander was found guilty as charged. Williander appealed and the ICA affirmed.

The Right to Compulsory Process. The Due Process Clauses in the Hawaii and federal constitutions guarantee the defendant’s right to a fundamentally fair trial. State v. Valmoja, 56 Haw. 452, 454, 540 P.2d 63, 64 (1975). This includes the right to compulsory process, which “affords a defendant in all criminal prosecutions, not only the power to compel attendance of witnesses, but also the right to have those witnesses heard.” State v. Acker, 133 Hawaii 253, 281, 327 P.3d 931, 959 (2014).

When the Right to Compulsory Process Mandates a Continuance. The HSC held that the defendant’s right to compulsory process can require a continuance of trial when (1) counsel exercised due diligence in seeking to obtain the attendance of the witness; and (2) the witness provides relevant and material testimony that benefits the defendant. The old test under State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279, 1281, is overruled.

The HSC applied the new test here and held that both factors required a continuance. Officer Sunada was served the subpoena for trial, but he said he was unable to testify because he was injured on leave. Secondly, his testimony was relevant and material testimony that benefitted Williander. Officer Sunada would have cast doubt on the bystander’s testimony about Williander yelling, “give me your fucking wallet” and would have cast doubt on Williander’s state of mind at the time due to his intoxication. The circuit court abused its discretion in denying the continuance.

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