Discharge of a Bail Bond Without Pending Charges Does not Exclude Rule 48

State v. Visintin (ICA February 20, 2018)

Background. Shawn Visintin was charged with place to keep a pistol or revolver. He was initially arrested on the charge and on the same day posted a bond for bail. He was issued a bond receipt and a notice to appear in the circuit court. No charges were filed against him. On the date of his scheduled appearance, Visintin did not appear and no charges were initiated against him. The bond was discharged. Visintin went home to Montana. Eight months later, the prosecution indicted him of the charge and a warrant was issued for his arrest. Visintin returned from Montana, pleaded not guilty, and filed a motion to suppress the evidence and a motion to dismiss the charges for violating his right to a speedy trial and HRPP Rule 48.

At the hearing on the motion to suppress, Officer Brian Silva was on duty travelling on Kuhio Highway on Kauai in Kawaihau District. He testified that there had been “a lot of calls of burglaries and criminal activity.” At around 2:40 a.m. he approached the Friendship House, a counseling facility, when he saw someone running across the road from the ocean to the Friendship House. It was Visintin. Officer Silva turned on his spotlight and turned into the Friendship House. He shined the light into bushes nearby. He found Visintin “hiding in the bushes” and concluded that he “obviously was trespassing.” He activated his blue lights, stopped his patrol car, and got out of the car.

He ordered Visintin to come out of the bushes. He complied. Officer Silva noticed Visintin was sweating, breathing heavily, and could smell alcohol on his person. Officer Silva requested Visintin’s identification so that he could run a warrant check. As he pulled out his wallet to produce his Montana driver’s license, Officer Silva noticed a concealed handgun on him. Officer Silva asked if he had any weapons or “something that might hurt me.” Visintin said he had a handgun. A pat down search revealed an unloaded Rock Island semi-automatic .45 caliber handgun. Officer Silva testified that even if he did not answer the question he would have still conducted the pat down search.

Both motions were denied. Visintin entered a conditional plea and he was sentenced to probation with 60 days jail. Visintin appealed to the ICA.

Rule 48 runs when Bail Bond Discharged and No Charges Filed by Prosecution. The court must dismiss the case “if trial is not commenced within 6 months . . . from the date of arrest if bail is set or from the filing of the charge, whichever is sooner[.]” HRPP Rule 48(b)(1). However, “the period between a dismissal of the charge by the prosecutor to the time arrest or filing of a new charge, whichever is sooner,” is excluded from the 6-month calculation. HRPP Rule 48(c)(6). The issue was whether the period from the discharging of the bond to the filing of the indictment was excluded pursuant to HRPP Rule 48(c)(6).

The ICA rejected the prosecution’s argument that the period of time was a de facto dismissal of the charges. The ICA examined the plain language of HRPP Rule 48(c)(6). The period is excluded when there is a “dismissal of the charge by the prosecutor.” The ICA reasoned that the peculiar practice on Kauai of a trial call without any charges being filed and the discharge of bail does not comport with the demarcated starting point in HRPP Rule 48(c)(6). Nothing has been filed by the prosecution and at the calendar call, the prosecutor has not dismissed any charge whatsoever. Thus, it cannot be considered a “dismissal . . . by the prosecutor.” The time is, therefore, not excluded. The indictment should have been dismissed pursuant to HRPP Rule 48.

No Violation of Right to Speedy Trial, no Dismissal With Prejudice. The ICA examined the speedy trial claim. The accused has the right to a speedy and public trial. Haw. Const. Art. I, Sec. 14 and U.S. Const. Am. VI. A violation of the right to a speedy trial turns on four factors: (1) the length of delay; (2) reasons for the delay; (3) the defendant’s assertion of the right to speedy trial; and (4) prejudice to the defendant. State v. White, 192, 201-202, 990 P.2d 90, 99-100 (1999). See also Barker v. Wingo, 407 U.S. 514 (1972).

The first factor—length of delay—required the ICA to determine the starting point of the prosecution, which differs from HRPP Rule 48. In the absence of a charging instrument, the starting point begins with the “actual restraints imposed by arrest and holding to answer a criminal charge[.]” United States v. Marion, 404 U.S. 307, 320 (1971). The ICA held that when Visintin was arrested and forced to post a bond in order to be released, he was under the impression that he would have to face charges someday.

The second factor weighed slightly in favor for the prosecution. The prosecution claimed that the delay was caused because there was no assigned deputy to the case. The office was handling two other major prosecutions and there was no time to assign. The third factor weighed in favor of the prosecution. Visintin did not assert trial. A motion to dismiss for violating his right to speedy trial is not the same. State v. Lau, 78 Hawaii 54, 64, 890 P.2d 291, 301 (1995).

The final factor—prejudice to the defendant—splinters into three more considerations: (1) oppressive pretrial incarceration; (2) anxiety to the defendant; and (3) impairment of the defense. State v. White, 92 Hawaii at 204, 990 P.2d at 102. Here, the ICA found nothing oppressive about three days of pretrial incarceration. The ICA also found there was no actual anxiety to the defendant other than the negligible “assertion of disquietude.” State v. Wasson, 76 Hawaii 415, 422, 879 P.2d 520, 527 (1994). Finally, the ICA held there was no impairment of a defense established. The ICA held that the delay did not violate Visintin’s right to a speedy trial.

Detention of Visintin was Justified. “A warrantless seizure is presumed invalid unless and until the prosecution proves that the seizure falls within a well-recognized and narrowly defined exception to the warrant requirement.” State v. Eleneki, 106 Hawaii 177, 180, 102 P.3d 1075, 1078 (2004). Brief, investigative detentions are an exception. To meet this exception, the prosecution must establish “measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate.” State v. Perez, 111 Hawaii 392, 398, 141 P.3d 1039, 1045 (2006).

The ICA held that the initial stop was sufficient to detain Visintin. He was in an area known for criminal activity. He saw Visintin hiding in the bushes and asked him to come out. Officer Silva suspected he was trespassing. His demand for identification was justified. The circuit court did not err in denying the motion to suppress.

Chief Judge Nakamura’s Concurrence and Dissent. Chief Judge Nakamura agreed with the speedy trial and suppression analysis, but wrote separately to dissent about Rule 48. He believed that the discharging of bail was a de facto dismissal triggering exclusion under HRPP Rule 48(c)(6).

Watch this Case. The HSC granted Visntin’s petition for certiorari on May 25, 2018.