Right to Attend your Trial is not Invitation to Flee

State v. Vaimili (ICA November 12, 2014)
Background. Joseph Vaimili had been charged of kidnapping, terroristic threatening in the first degree, promoting prostitution in the first degree, and using or carrying a firearm while in the commission of a felony. Vaimili was released on bail. He appeared at some pretrial matters and at the selection of his jury. On the day the jury was supposed to be sworn in and trial to get started, Vaimili did show up in court. The trial court granted two continuances and he still did not show up. The prosecution filed a memorandum asserting that Vaimili left the islands and that sheriffs and police were actively searching for him on Oahu. Finally, about a month after the jury had been selected, the court proceeded with his trial in absentia. The jury found Vaimili guilty as charged. He was later found in Texas more than a year after the verdict, brought back to Hawaii, and sentenced to prison for 40 years. He appealed.

Disjunctive Charging as Alternative Means to a Single Offense is A-O.K. The charging instrument must inform the accused about “the nature and cause of the accusation.” Haw. Const. Art. I, Sec .14. It must “sufficiently apprise the defendant of what he or she must be prepared to meet to defend against the charges.” State v. Codiamat, 131 Hawaii 220, 223, 317 P.3d 664, 667 (2013).

Here’s the amended complaint:

Count I: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did intentionally or knowingly restrain [the CW], with intent to terrorize her or a third person, thereby committing the offense of Kidnapping . . . .
. . . .
Count II: On or about the 21st day of February, 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI, did intentionally or knowingly restrain [the CW], with intent to inflict bodily injury upon her or subject her to a sexual offense, thereby committing the offense of kidnapping . . . .
. . . .
Count III: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI threatened, by word or conduct, to cause bodily injury to [the CW], with the use of a dangerous instrument, to wit, an instrument that falls within the scope of Section 706-660.1 of the [HRS], with the intent to terrorize, or in reckless disregard of the risk of terrorizing [the CW], thereby committing the offense of Terroristic Threatening in the First Degree . . . .
. . . .
Count IV: On or about the 18th day of February, 2009, to and including the 3rd day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did knowingly advance prostitution by compelling [the CW] by force, threat, or intimidation to engage in prostitution, or did knowingly profit from such coercive conduct by another, thereby committing the offense of Promoting Prostitution in the First Degree . . . .
. . . .
Count V: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did knowingly carry on his person or have within his immediate control or did intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, to wit, Kidnapping and/or any included felony offense of Kidnapping, whether the firearm was loaded or not, and whether operable or not, thereby committing the offense of Carrying or Use of a Firearm in the Commission of a Separate Felony . . ., if he intentionally or knowingly restrain[ed] [the CW] with the intent to terrorize her or a third person.

Vaimili argued that this charging document was defective because it used the disjunctive throughout each of the counts. ICA disagreed. Using the disjunctive “may be appropriate when it provides notice to the defendant that the State may attempt to prove guilt by showing that the defendant committed any one of multiple related acts. This alerts the defendant that he or she must be prepared to defend against each of the charged alternatives.” Codiamat, 131 Hawaii at 226, 317 P.3d at 670. States of mind can be charged disjunctively. Id. at 227, 317 P.3d at 671. When the defendant is charged “under a single subsection of a statute, the charge may be worded disjunctively in the language of the statute as long as the acts charged are reasonably related so that the charge provides sufficient notice to the defendant.” Id.

Here, the ICA held that the use of the disjunctive in the counts against Vaimili was constitutionally sound. According to the ICA, the disjunctive were alternative means to prove the single offense. “For example, if an offense can be committed by alternative means A or B, the State can establish the defendant’s guilt by proving either means A or means B.” That, according to the ICA, provides fair notice that is constitutionally permissible.

Standing Trial without the Accused. When the offense is not capital and when the accused is not in custody, “the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.” Diaz v. United States, 223 U.S. 442, 445 (1912).

A more recent articulation of the rule comes from Hawaii Rules of Penal Procedure (HRPP) Rule 43:
The further progress of a pretrial evidentiary hearing or of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present, . . . is voluntarily absent after the hearing or trial has commenced . . . .

“Trial has Commenced” at the Start of Jury Selection. The first issue, according to the ICA, was determining when “trial has commenced.” As a matter of first impression, the ICA held that trial has commenced when the court begins the jury selection process. The court arrived to that decision based on the language of the rule and noted how it is almost identical to the Federal Rules of Criminal Procedure. And so, the federal interpretation of their rules would be “persuasive” and “appropriate.” State v. Toguchi, 9 Haw. App. 466, 467, 845 P.2d 557, 558 (1993); State v. Caraballo, 62 Hawaii 309, 322 n. 12, 615 P.2d 91, 99 n. 12 (1980). Federal courts have held that jury selection marks the start of a trial. United States v. Alikpo, 944 F.2d 206, 209-10 (5th Cir. 1991); United States v. Bradford, 237 F.3d 1306, 1309-10 (11th Cir. 2001). At the same time, however, this is not the same triggering point for Double Jeopardy. Id. And so, the ICA held that Vaimili’s trial had “commenced” once the jury was selected and while he was in court.

No Contact with Lawyer and Bail Bond Company for Nearly a Month is “Voluntarily Absent.” Having held that trial had commenced, the next question was whether Vaimili had “voluntarily absent[ed]” himself by failing to appear once jury had been selected. The ICA held that the record provided compelling evidence that Vaimili had absconded. He was in the courtroom when the court told jurors when the trial would resume. He did not show. His lawyer told the court that he had lost contact with him. There was no explanation for the failure to appear. The court continued the case for five days.

When they appeared again, his whereabouts were still unknown. His lawyer didn’t know where he was and his bail bond company couldn’t find him. The court continued the trial for another 22 days and his whereabouts were still unknown. The bail bond company still couldn’t find him and informed the court that it was looking for him on the mainland. That, according to the ICA, was sufficient evidence to show that Vaimili was voluntarily absent from the trial.

Proceeding in Absentia is not an Abuse of Discretion? The final issue was whether the trial proceeding should have continued without Vaimili. Vaimili relied on State v. Okamura, 58 Haw. 425, 570 P.2d 848 (1977). There, the defendant, then in custody, went to the bathroom, but jumped out of a window and hurt himself. The trial court refused to stop the proceedings for the day and demanded his return (even though he was in the hospital being treated for his injuries).

The decision to proceed without the voluntarily absented defendant “lies in only a narrow discretion given to the trial judge” in which the judge must “weigh the competing interests at stake.” Id. at 429, 570 P.2d at 852. The court must carefully balance the defendant’s “right to confront his accusers, and other possible prejudice which might result from his absence, . . . against the time and expense caused by defendant’s effort to defeat the proceedings by his departure or flight.” Id. Moreover, “the narrow discretion given to the trial judge to proceed with trial should be exercised only when the public interest clearly outweighs that of the absent defendant.” Id. at 430, 570 P.2d at 852.

The ICA noted that the balancing test in Okamura is required even after the court concludes that the accused voluntarily absented himself or herself. But after Okamura, the HSC in Caraballo did not apply the balancing test. In Caraballo, the defendant walked out of his trial while he was on bail.

Despite the legal question, the ICA held that even if the Okamura balancing test did apply, there was enough in front of the trial judge to proceed without Vaimili. It was clear from the record that Vaimili was gone and not likely to return soon. Trials cannot be postponed indefinitely and the public interest in proceeding clearly outweighed Vaimili’s interests. The ICA affirmed the judgment.

Another Distinct Absence. This case suggests that there has been no further discussion after Caraballo. But what about State v. Kaulia? There, the HSC held that the trial court abused its discretion in proceeding with trial after the defendant got up and announced that he was walking out of the courtroom. The HSC held that a colloquy was required. Can this case be squared with Kaulia? Possibly. How should we read that case with this one?


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