Without a Sworn Statement from the Complainant, the Complaint is Defective

 State v. Thompson (HSC December 10, 2021)

Background. Corey Thompson was charged by way of complaint with abuse of a family or household member. HRS § 709-906. The complaint was signed by a prosecutor and had no other signatures on it. The prosecution did not attach a declaration or any affidavit to the complaint. The family court clerk issued a penal summons demanding Thompson’s presence in Kona district court.

 

Thompson moved to dismiss the complaint on the grounds that there was no affidavit establishing probable cause that he committed the offense and there was no declaration or sworn affidavit pursuant to HRS § 805-1. Without an affidavit or declaration, the prosecution could not arraign him pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 5(b)(1). The family court (Hon. Judge Ronald Ibarra) granted the motion and dismissed the case without prejudice. The prosecution appealed. The ICA, in a published opinion, vacated the dismissal order. Thompson petitioned for and was granted a writ of certiorari.

 

The (Long-Forgotten) Procedure of HRS §§ 805-1 and 3. The HSC noted that there is “only a single type of criminal complaint regardless of whether the complaint is used to initiate proceedings through an arrest warrant or a penal summons” in HRS § 805-1:

 

When a complaint is made to any prosecuting officer of the commission of any offense, the prosecuting officer shall examine the complaintant, shall reduce the substance of the complaint to writing, and shall cause the complaint to be subscribed by the complainant under oath, which the prosecuting officer is hereby authorized to administer, or the complaint shall be made by declaration in accordance with the rules of the court. . . . Upon presentation of the written complaint to the judge in whose circuit the offense allegedly has been committed, the judge shall issue a warrant, reciting the complaint and requiring the sheriff, or other office to whom it is directed, except as provided in section 805-3, to arrest the accused and to bring the accused before the judge to be dealt with according to law[.]

 

The exception carved out in HRS § 805-3 allows a penal summons:

 

Where, from the complaint, it appears to the district judge that the offense charged therein is not of a serious nature, or not one for which a severe penalty should be imposed, and where the person complained against is so situated as to raise no presumption of the person’s attempting to elude justice in the premises, the district judge may, in the district judge’s discretion (unless the complainant in writing requests the immediate arrest of the alleged offender), issue the district judge’s summons[.]

 

Because these statutes are “plain and unmistakable[,] the court is bound by the plain, clear and unambiguous language of the statute[s].” State v. Sylva, 61 Haw. 385, 387-388, 605 P.2d 496, 498 (1980). In reading the statutes together, the HSC held that a penal summons may not issue unless there has been compliance with HRS § 805-1—a statute that applies to all criminal complaints regardless of securing the appearance of the defendant by way of penal summons or warrant.

 

The sworn oath or declaration of the complainant is required before a penal summons or warrant may issue. The HSC turned to HRS § 805-1. It was clear that the statute requires the prosecution to either have the complaint signed under oath by the complainant or get a “declaration in accordance with the rules of the court[.]” Id. The HSC held that the “rules of the court” refers to the HRPP Rule 47(d). And because this was a family court case it also relied on the incorporating rule in Hawai'i Family Court Rules (HFCR) Rule 81(c). HRPP Rule 47(d) allows a declaration in lieu of a formal oath or affidavit so long as it contains a statement ensuring that the signer has declared something to this effect:

 

I, __________, declare under penalty of law that the foregoing is true and correct to the best of my knowledge and belief.

 

The HSC held that HRS § 805-1, HRPP Rule 47(d), and HFCR Rule 81(c) required the complaint to be accompanied by either an oath or declaration by the complainant.

According to the HSC, HRS § 805-1 “unambiguously requires the State to ensure that complaints are either subscribed under oath by a complainant or accompanied by a declaration in lieu of affidavit.” Relying on legislative history for the statute, the HSC observed that this requirement protects “the offender’s right to challenge the veracity of the” complainant. S. Stand. Comm. Rep. No. 1194, 2007 Sen. Journal at 1557-58.

 

Noncompliance with HRS § 805-1 is a Defective Complaint. The HSC treated the failure to accompany the complaint with an oath or declaration as a defective complaint. The summons or warrant should not have issued pursuant to HRS §§ 805-1 or 3. Because the prosecutor bears “the responsibility of determining whether or not to instigate a formal criminal proceeding,” the failure to comply with these statutes constitutes “a proper ground for dismissal.” State v. Knoeppel, 71 Haw. 168, 171, 785 P.2d 1321, 1322 (1990). And so, the HSC held that the ICA erred in vacating the dismissal order.

 

The Prosecutor, the Police, and the Complainant. The dynamics between investigating police officers, the complainant, and the prosecutor all intersect at HRS § 805-1. A prosecutor reviews reports from the police and determines if a crime has been committed by someone. The prosecutor can write up a complaint and get it filed. But no summons or warrant can issue unless the complainant signs off on some oath or declaration. If the defendant is hailed into court without that signed statement from the complainant, the complaint is defective and may be dismissed.

 

What does the statement need to say? HRS § 805-1 says the complaint must be “subscribed by the complainant under oath.” If the legislative history has any hint—the statute is there to protect “the offender’s right to challenge the veracity” of the accusation—it would seem that some kind of factual assertion needs to happen. What exactly the complainant is going to have to sign off on remains to be seen.