State v. Marquez

S
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER




                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    05-MAR-2021
                                                    07:51 AM
                                                    Dkt. 51 SO


                              NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                             OF THE STATE OF HAWAI#I


               STATE OF HAWAI#I, Plaintiff-Appellant, v.
                 PRECIOUS MARQUEZ, Defendant-Appellee

           APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
                       (CASE NO. 1FFC-XX-XXXXXXX)


                    SUMMARY DISPOSITION ORDER
 (By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

             Plaintiff-Appellant State of Hawai#i (State) appeals
from the Order of Dismissal with Prejudice, entered on May 29,
2019 (Dismissal Order), in the Family Court of the First Circuit
(family court).1/
          On May 13, 2019, the State filed a criminal complaint
charging Defendant-Appellee Precious Marquez (Marquez) with two
counts of felony Abuse of Family or Household Members, in
violation of Hawaii Revised Statutes (HRS) § 709-906(1) and (9)
(2014 & Supp. 2018)2/ (Felony Abuse).          The charges stemmed from a

      1/
             The Honorable Na#unanikina#u A. Kamali#i presided.
      2/
            At the time of the alleged offense in 2019, HRS § 709-906 stated,
in relevant part:

                   Abuse of family of household members; penalty. (1) It
             shall be unlawful for any person, singly or in concert, to
             physically abuse a family or household member . . . .

                   For the purposes of this section:
                   . . . .
                   "Family or household member":
                                                                  (continued...)
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

May 9, 2019 incident in which Marquez allegedly struck the
complaining witness (CW) in the presence of their one- and three-
year-old children while at a Target store in Kapolei. Following
a preliminary hearing on May 29, 2019, the family court dismissed
the complaint with prejudice for lack of probable cause.
          The State contends that the family court erred in: (1)
dismissing the complaint with, rather than without, prejudice;
and (2) failing to provide findings supporting the Dismissal
Order. The State requests that the Dismissal Order be vacated
and the case be assigned to a different judge on remand.
          After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we vacate the
Dismissal Order and remand this case to the family court with
instructions, for the reasons set forth below.
          "The use of a trial court's inherent power to dismiss a
criminal charge with prejudice is reviewed for abuse of
discretion." State v. Kapalski, No. CAAP-XX-XXXXXXX, 

2019 WL 2417753

, at *5 (Haw. App. June 10, 2019) (mem.) (citing State v.
Kostron, No. 30217, 

2012 WL 4478586

, at *2 (Haw. App. Sept. 28,
2012) (SDO)). "The trial court abuses its discretion when it
clearly exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant." State v. Plichta, 116 Hawai#i 200, 214, 

172 P.3d 512

, 526 (2007) (quoting State v. Rogan, 91 Hawai#i 405,
411, 

984 P.2d 1231

, 1237 (1999)).


      2/
           (...continued)
                    (a)   Means spouses or reciprocal beneficiaries,
                          former spouses or reciprocal beneficiaries,
                          persons in a dating relationship as defined
                          under section 586-1, persons who have a child in
                          common, parents, children, persons related by
                          consanguinity, and persons jointly residing or
                          formerly residing in the same dwelling unit[.]
                   . . . .

                   (9) Where physical abuse occurs in the presence of a
             minor, as defined in section 706-606.4, and the minor is a
             family or household member less than fourteen years of age,
             abuse of a family or household member is a class C felony.
HRS § 709-906(1), (9) (2014 & Supp 2018).

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 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

          At the preliminary hearing in this case, the State
offered the CW's testimony in support of the Felony Abuse
charges. Following that testimony, the family court stated that
it did not find the CW credible, and thus did not find probable
cause to believe that the charged offenses had been committed and
that Marquez had committed the charged offenses. The family
court thereafter dismissed the complaint with prejudice.
          The State does not dispute the family court's finding
of no probable cause, but argues that the court abused its
discretion in dismissing the Felony Abuse charges with prejudice.
          The supreme court has explained the purpose of a
preliminary hearing as follows:
          "The primary purpose of a preliminary hearing is to
          ascertain whether there is reasonable ground to believe that
          a crime has been committed and whether there is just cause
          to believe the defendant committed it." 21 Am. Jur. 2d
          Criminal Law, § 413, at 685 (1981).

                The credibility of witnesses at a preliminary hearing
                is a proper consideration for the judge in determining
                probable cause. Moreover, the credibility of
                witnesses at the preliminary hearing is a question of
                fact within the province of the committing judge to
                determine and neither the trial court nor an appellate
                court may substitute its judgment for his or hers on
                such question.

Id. at 684.

Reed v. City & Cty. of Honolulu, 76 Hawai#i 219, 228, 

873 P.2d 98

, 107 (1994) (brackets and ellipsis omitted). "If from the
evidence [adduced at a preliminary hearing] it appears that there
is probable cause to believe that the felony charged, or an
included felony, has been committed and that the defendant
committed it, the court shall commit the defendant to answer in
the circuit court; otherwise, the court shall discharge the
defendant." Hawai#i Rules of Penal Procedure (HRPP) Rule 5(c)(6)
(emphasis added).
          Thus, where, as here, the court does not find probable
cause to hold the defendant to answer the charge, the remedy
under HRPP Rule 5(c)(6) is to discharge the defendant, not to
dismiss the charge with prejudice. We therefore view the family
court's dismissal with prejudice as an exercise of its inherent
power to "administer justice." State v. Moriwake, 

65 Haw. 47

,
55, 

647 P.2d 705

, 712 (1982); accord State v. Alvey, 

67 Haw. 49

,

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57, 

678 P.2d 5

, 10 (1984) (holding that the trial court has
inherent power to dismiss a criminal charge with prejudice under
certain circumstances).
           The family court's power in this respect "is not
unbounded." Kapalski, 

2019 WL 2417753

, at *6. "The court must
balance the interests of the state against fundamental fairness
to the defendant, with the added ingredient of the orderly
functioning of the court system."

Id. (citing Moriwake, 65

Hawai#i at 

55-56, 647 P.2d at 712

). "For example, the court acts
within its discretion when dismissing charges after two
mistrials," but "abuses that discretion when dismissing prior to
the first trial for comity or judicial economy absent a due
process violation or misconduct that represents a serious threat
to the integrity of the judicial process."

Id. (emphasis added) (comparing

Moriwake, 65 Hawai#i at 

57, 647 P.2d at 713

with

Alvey, 67 Haw. at 57

, 678 P.2d at 10-11).
          Here, the family court did not make factual findings
supporting the Dismissal Order. Nonetheless, the record is
sufficient for this court to make a determination of whether the
family court abused its discretion in dismissing the Felony Abuse
charges with prejudice. See Kapalski, 

2019 WL 2417753

, at *7
(citing State v. Hern, 133 Hawai#i 59, 64-65, 

323 P.3d 1241

,
1246- 47 (App. 2013)). Specifically, the family court stated on
the record that it was dismissing the charges for lack of
probable cause, because it did not find the CW credible. There
was no mention or suggestion, and we find no evidence in the
record, of a due process violation or any misconduct representing
a serious threat to the integrity of the judicial process.
          On this record, we conclude that the family court
abused its discretion in dismissing the Felony Abuse charges with
prejudice. Given our conclusion, we do not reach the State's
second issue on appeal. In addition, the State's request that
this case be remanded to a different judge is denied.
          Therefore,
          IT IS HEREBY ORDERED that the Order of Dismissal with
Prejudice, entered on May 29, 2019, in the Family Court of the
First Circuit, is vacated, and this case is remanded to the


                                  4
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family court with instructions to dismiss the Felony Abuse
Charges without prejudice.

          DATED:   Honolulu, Hawai#i, March 5, 2021.



On the briefs:
                                      /s/ Katherine G. Leonard
Chad M. Kumagai,                      Presiding Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellant.              /s/ Keith K. Hiraoka
                                      Associate Judge
Jon N. Ikenaga,
Deputy Public Defender,
for Defendant-Appellee.               /s/ Clyde J. Wadsworth
                                      Associate Judge




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