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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