If no Prelim in Two Days, the Defendant must (more or less) Always be Released

Moana v. Wong (HSC November 21, 2017)
Background. This case is comprised of two cases that have been consolidated and address the same procedural issue. First, Si Ufaga Moana was arrested on June 20, 2017 for assault in the second degree. Two days later he was charged by way of a complaint of felony abuse of a household member. That same day, on June 22, Moana appeared in custody before the family court. The family court confirmed bail at $30,000 and set a preliminary hearing for June 26, 2017. On the day of the preliminary hearing, the prosecution moved to continue on the grounds that the complaining witness “absented herself” from the proceedings. The prosecutor represented that the complainant might be on the mainland and may be refusing to come, but was unsure. Moana moved to dismiss the complaint or, in the alternative, moved for supervised release. The prosecution opposed. The family court granted the continuance and denied Moana’s motions. The preliminary hearing had been continued to July 13, 2017—15 days after the initial appearance. Before the hearing took place, Moana filed for a writ of mandamus.

In the other case, Jayvan Curioso was arrested on March 10, 2017 for abuse of a family or household member. Three days later he was charged by way of a complaint with kidnapping, terroristic threatening in the first degree, and abuse of a family or household member. Bail was set at $150,000 and a preliminary hearing was set for March 15, 2017. At the preliminary hearing, the prosecution moved for a continuance to March 21 to obtain a Tagalog interpreter for the complainant. Curioso objected and moved for release on his own recognizance or a reduction in bail. The district court denied Curioso’s request and granted the prosecution’s continuance. The preliminary hearing was continued to March 21—six days after Curioso’s initial appearance. Curioso petitioned for a writ of mandamus.

After the petitions were filed, the prosecution charged Moana by way of a felony information and dismissed the case with the complaint. The prosecution also obtained an indictment against Curioso and dismissed the case with the complaint and preliminary hearing.

HRPP Rule 5(c)(3)—Mandatory Release and the Three Exceptions. Moana and Curioso argue that their respective trial courts erred in denying their motions for release. The key to their argument is in HRPP Rule 5:

TIME FOR PRELIMINARY HEARING; RELEASE UPON FAILURE OF TIMELY DISPOSITION. The court shall conduct the preliminary hearing within 30 days of initial appearance if the defendant is not in custody; however, if the defendant is held in custody for a period of more than 2 days after initial appearance without commencement of a defendant’s preliminary hearing, the court, on motion of the defendant, shall release the defendant to appear on the defendant’s own recognizance, unless failure of such determination or commencement is caused by the request, action or condition of the defendant, or occurred with the defendant’s consent, or is attributable to such compelling fact or circumstance which would preclude such determination or commencement within the prescribed period, or unless such compelling fact or circumstance would render such release to be against the interest of justice.

HRPP Rule 5(c)(3). Court rules are reviewed de novo. See Enos v. Pac. Transfer & Warehouse, Inc., 80 Hawaii 345, 349, 910 P.2d 116, 120 (1996).

The HSC interpreted the rule to mean that when the defendant is in custody and a preliminary hearing has not commenced within two days of the initial appearance, the court must release the defendant upon his or her own motion. This rule is subject to three exceptions: (1) release is not required when the failure to conduct the preliminary hearing resulted from action or condition of the defendant, upon request by the defendant, or upon agreement by the defendant; (2) when a “compelling fact or circumstance” precludes the hearing from occurring on time; and (3) a “compelling fact or circumstance” would make release “against the interest of justice.”

The “Compelling-Fact-or-Circumstance”-Precludes-the-Hearing Exception. The prosecution conceded that the first exception did not apply, but instead argued vaguely that “compelling circumstances” justified the continued detention.

The HSC examined the history of the rule and the structure of the rule too. In the end, the HSC construed the words “compelling fact or circumstance” to mean “an occurrence or situation that is of such gravity as to overcome the strong presumption that the release rule applies.” The absence of a witness will rarely displace this strong presumption. Even if there is a “compelling fact or circumstance,” it must directly preclude the determination of probable cause or commencement of the preliminary hearing.

In applying this interpretation to Moana and Curioso’s cases, the HSC resolved each differently. In Moana’s case, the prosecution’s unavailability of the complaining witness was vague and indefinite. The prosecution must “set forth the specific steps that it intends to take to expeditiously resolve the compelling circumstance, and the requested continuance must be limited to that time period.” Thus, the family court should have released him.

In Curioso’s case, however, the need for an interpreter was too important and prolonged detention may be justified. But the district court should have done more. There appeared to be no steps taken in advance to secure an interpreter and the district court should have made the continuance much shorter.

The Compelling-Fact-or-Circumstance-Renders-Release-Against-the-Interest-of-Justice Exception. The HSC also examined the third and final exception: when the compelling fact or circumstance renders against release in the interest of justice. The HSC interpreted this language to allow the district court to keep the defendant detained beyond the two-day period when a compelling fact or circumstance exists to keep him or her in custody. This too must overcome the gravity of the strong presumption for release. In these cases there was nothing in either record justifying the prolonged detention.

A Note on Mootness. The mootness doctrine is a self-imposed rule on the courts limiting its cases to a “live controversy of the kind that must exist if courts are to avoid advisory opinions on abstract propositions of law.” Kona Old Hawaiian Trails Grp. v. Lyman, 69 Haw. 81, 87, 734 P.2d 161, 165 (1987). Thus, the court will not decide a case if it cannot grant relief sought by the party. County of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 405, 235 P.3d 1103, 1117 (2010). These cases are moot.

Once the defendant has been charged by way of another instrument like an indictment or felony information, a preliminary hearing cannot be conducted. Hawaii Rules of Penal Procedure Rule 5(c)(1) (preliminary hearing “shall not be held if the defendant is indicted or charged by information before the date set for such hearing.”). The new charging instrument ends the trial court’s jurisdiction to hold the preliminary hearing. Chung v. Ogata, 53 Haw. 395, 395, 495 P.2d 26, 26 (1972). Because Moana was later charged by way of a felony information and Curioso by way of indictment, the proceedings scheduling a preliminary hearing had ended and the right to a preliminary hearing extinguished.

But there are exceptions to the mootness doctrine. Courts forge ahead and resolve moot cases if the alleged injury is capable of repetition but by its nature evades appellate review. State v. Tui, 138 Hawaii 462, 468, 382 P.3d 274, 280 (2016). This exception typically arises when “the passage of time would prevent any single plaintiff from remaining subject to the restriction complained of for the period of necessary to complete the lawsuit.” Id.


The HSC held that these cases met the exception. Continuing cases beyond the two-day limitation imposed by HRPP Rule 5(c)(3) is certainly capable of repetition. At the same time, this problem will almost always evade appellate review. The crucial, injurious period of time is the continuance beyond two days while the defendant remains in custody. Even if the HSC is ready, willing, and able to resolve the issue expeditiously, the prosecution can effectively end the proceedings by securing a felony information or indictment. Thus, the HSC addressed the merits of their cases and found error on the part of the lower courts.

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