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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000759
                                                              04-APR-2018
                                                              08:34 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


                          STATE OF HAWAI#I,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                            GJ WILLIANDER,
                   Petitioner/Defendant-Appellant.


                            SCWC-15-0000759

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-15-0000759; CR. NO. 14-1-1212)

                              APRIL 4, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                     OPINION OF RECKTENWALD, C.J.

                            I.   Introduction

          This case requires us to determine if the circuit court

erred in failing to continue trial because of the unavailability

of a defense witness.
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           Defendant GJ Williander was charged with second degree

robbery of the complainant, Kyle Aihara.           On the first day of his

trial,1 Williander moved to continue because police officer

Darren Sunada was unavailable to testify.          Officer Sunada had

arrested Williander and spoken with him shortly after the alleged

robbery.   Williander argued that Officer Sunada’s testimony would

provide important evidence regarding Williander’s state of mind

at the time of the incident.       The State objected, noting that

Officer Sunada was unavailable because he was on injured leave,

and would not return to duty for several months.           The circuit

court denied Williander’s motion.

           At trial, Aihara testified that on the night of the

incident, he was walking when someone hit him from behind.

Aihara said that while he heard a voice, he could not make out

what was said, as he was in shock.        A bystander, Michael Ragudo,

testified that he observed Aihara and Williander from across the

street, and heard Williander yell, “Give me your wallet,” “Give

me your fucking wallet,” and saw Williander strike Aihara.             After

the State rested its case, Williander again moved to continue

trial, and also moved for a mistrial, which the circuit court

denied.

           The defense’s only witness was Williander, who

testified that he had no recollection of the incident because he



     1
           The Honorable Rom A. Trader presided.

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had consumed substantial amounts of alcohol on the afternoon and

night in question.    Following closing arguments, Williander

renewed his motion for mistrial, which the circuit court denied,

and the jury found Williander guilty as charged.           Williander then

moved for a new trial, which the circuit court denied.            On

appeal, the ICA affirmed the circuit court’s holdings.

           In his application to this court, Williander argues

that the circuit court erred in denying Williander’s motion to

continue trial, motion for mistrial, and motion for new trial

because of Officer Sunada’s unavailability.          We conclude that

defense counsel exercised due diligence by properly subpoenaing

Officer Sunada.    We also conclude that Officer Sunada’s

observations provided a means for Williander to challenge

Ragudo’s testimony that Williander demanded Aihara’s wallet.

Ragudo’s testimony was the only evidence presented to support

finding Williander guilty of robbery rather than assault.              Thus,

Officer Sunada’s testimony was relevant and material testimony

that benefitted Williander.      Accordingly, Williander’s right to

compulsory process to obtain witnesses in his favor was violated,

and the circuit court erred in denying Williander’s motions.

           We therefore vacate the ICA’s judgment on appeal and

the circuit court’s judgment of conviction and probation

sentence, and remand for further proceedings consistent with this

opinion.



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                              II.   Background

A.   Circuit Court Proceedings

            On July 29, 2014, a grand jury indicted Williander for

robbery in the second degree, in violation of Hawai#i Revised

Statutes (HRS) § 708-841(1)(a).         In discovery, Williander

received Sheldon Matsui’s statement, which included:

            On June 13th, 2014 I was at 24hr Fitness on Kapiolani
            Blvd. and saw an older Asian male holding his wrist
            and another bystander telling me not to go outside.
            When I looked outside I saw a Polynesian male
            approaching people walking by on the sidewalk and
            faking like he was going to hit them. The Polynesian
            male was about 5’7 - 5’10 and about 200 - 240 lbs. He
            seemed disoriented and kind’ve [sic] stumbled down the
            sidewalk. He eventually walked towards Kalakaua Ave.
            and I lost sight of him. When I got to my car I
            called 911.

            Williander received a copy of Matsui’s 911 call, in

which Matsui described the male as a “‘crazy guy with no shirt

on’” that was “‘trying to fight everybody.’”            Williander also

received a copy of Officer Sunada’s written police report

regarding the incident, which states that he responded to the

scene at 10:28 p.m. and observed a shirtless man:

            I observed the male, later identified as GJ
            WILLIANDER, to have curly black hair and to be about
            5-9” [sic] tall. Upon making the above observations,
            I immediately stopped and exited my blue and white
            police car and identified my self [sic] to WILLIANDER
            as a police officer and informed him that he was being
            detained as a suspect in a robbery case. I then
            instructed WILLIANDER to place his hands behind his
            back. WILLIANDER complied by placing his hands behind
            his back while dropping to his knees and flopping to
            the ground on his stomach under his own power. While
            on the ground, WILLIANDER was handcuffed with his
            hands behind his back without incident and was


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          repositioned into the seated position.

          . . . .

          While with WILLIANDER, I was able to smell a strong
          odor resembling an alcoholic type beverage to be
          coming from his person. WILLIANDER was slurring his
          words and rambling unintelligible verbiage.
          WILLIANDER was also unsteady on his feet while
          walking.

     1.   Motions for Continuance

          In September 2014, Williander moved for a continuance,

stating that he needed more time to investigate.           The State did

not object, and the court granted Williander’s motion.            In

November 2014, Williander moved for a second continuance, as

there was “a matter of outstanding discovery.”          The circuit court

granted Williander’s motion over the State’s objection.            In

February 2015, Williander requested a third continuance because

his counsel’s trial schedule was full.         Over the State’s

objection, the court granted Williander’s request.           In April

2015, Williander requested a fourth continuance, as he was unable

to secure witness Sheldon Matsui.        Over the State’s objection,

the circuit court granted the continuance, designating it as “a

last continuance for the defense.”        In July 2015, on the day of

trial, Williander moved for a fifth continuance because Officer

Sunada was unavailable to testify.        This fifth motion for

continuance is at issue.

          When asked for an offer of proof for his fifth motion

for continuance, Williander’s counsel argued that Officer Sunada


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was a necessary witness because:         (1) he was the arresting

officer; (2) the arrest occurred within a few minutes of the

incident; (3) his police report had the most detailed information

about “Williander’s state at that time”; and (4) his testimony

was important evidence “as to state of mind, an element in this

case.”   The State objected, noting that the court had designated

Williander’s fourth continuance as a “last continuance,” and also

stating that Officer Sunada was on injured leave, with an

anticipated return for light duty in September 2015.

          Defense counsel continued his arguments stating that,

without Officer Sunada, he did not “have a significant defense”

because Williander’s memory of the events was limited by his

intoxication.   Thus, defense counsel argued that it had only two

helpful witnesses, Matsui and Officer Sunada, and Matsui did not

have as close contact with Williander as Officer Sunada.

          Williander also stated that with regard to whether the

parties could stipulate to the testimony of Officer Sunada,

Williander would prefer live testimony because he only had one

witness, and a stipulated police report would have “less value”

than live testimony.     Further, Williander stated that Officer

Sunada’s report had more detail about the incident because he was

the person who initially detained Williander and stated his

observations of Williander’s intoxication.

          The court denied Williander’s motion, reasoning:

                And I’m not saying that there’s a lack of


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          diligence on your part relative to Officer Sunada
          because, you know, he’s out. And even if you had been
          diligent, and I’m presuming that up to this point in
          time, he is out on injured leave, he’s not available.
          But I am of the view that this case is not unduly
          complex and that while it is less than ideal from the
          standpoint of the defense strategy and availability of
          witnesses and other information, that at this point
          there’s been, as I indicated, several continuances.

          . . . .

                And while Officer Sunada might be able to
          provide some impeachment, as we often know police
          officers do do in cases like this, I’m not resting it
          solely on that basis. And essentially it’s abuse of
          discretion and I don’t believe on review that this
          will be viewed as such. And so I think the defense
          has had an ample opportunity to prepare and we’re
          ready for trial and so we’re going to proceed.

     2.   Trial

          a.    The State’s Case-in-Chief

          At trial, the State’s first witness was Kyle Aihara,

the complainant.    He testified that he is legally blind, and

explained that he is not “completely blind,” but has “visual

limitations.”    Aihara testified that on June 13, 2014, at

approximately 10:20 p.m., he was walking east on Kapi#olani

Boulevard, near 24 Hour Fitness, when he “felt something hit

[him] from behind . . . and [he] fell to the ground.”              Aihara

testified that he “heard a voice,” but “couldn’t make it out,” as

he “was kind of in shock.”      According to Aihara, he fell forward

on his knees and his face, felt pain in his left wrist, and then

“felt a presence of someone on top of [him] . . . .”            Aihara

stated that Michael Ragudo, whom Aihara did not know prior to the


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incident, helped him up and gave him his glasses, which had

fallen off.    Aihara testified that his wallet was still in his

pocket.    Aihara stated that Ragudo then assisted him into the

lobby of 24 Hour Fitness, where Ragudo called the police.             On

cross-examination, Aihara testified that he did not have any

recollection of anyone demanding his wallet, reaching into his

pocket to try to take his wallet, or touching his pants.

            Michael Ragudo testified that, at 10:20 p.m. on the

night in question, he was on Kapi#olani Boulevard across the

street from 24 Hour Fitness when he saw “two guys kind of horsing

around.”    According to Ragudo, he heard one guy yell “clearly”

and “loudly” in the tone of a “loud demand” or “command,” “Give

me your wallet,” “Give me your fucking wallet,” which indicated

to him that they were not just horsing around.          Ragudo testified

that the “two guys were kind of struggling,” and that he heard,

“Give me your wallet,” twice.       Ragudo testified that he saw one

man down on the ground on his hands and knees, and the other man

above him “reach up and then strike down towards the back of the

man’s head.”    Ragudo stated that he then yelled and ran across

the street, at which point the suspect went Ewa-bound on

Kapi#olani.    Ragudo stated that he gave Aihara his glasses,

helped him up, and then took him into the 24 Hour Fitness lobby

and called 911.    According to Ragudo, when he was in the 24 Hour

Fitness lobby, he saw the suspect walking back towards them and

held the door closed in response.        Ragudo testified that the

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suspect, now shirtless, was walking back and forth “agitatedly”

on the sidewalk in front of 24 Hour Fitness.          Ragudo testified

that the police arrived five to ten minutes later.           Ragudo also

testified that he did “a field identification” of Williander

about 15 to 20 minutes after the police arrived on the scene.

           On cross-examination, Ragudo testified that he heard

the suspect demand the wallet twice, but that in his handwritten

statement, referenced only one demand.         Ragudo explained that

“the first demand was kind of garbled, I wasn’t really paying

attention to it, but I clearly heard him the second time ‘Give me

your fucking wallet,’ which was when I yelled from across the

street.”   Ragudo agreed that he did not observe anyone go through

Aihara’s pockets, or see anyone pat Aihara down, and that he

“just saw [Williander] on top of [Aihara] and deliver the punch.”

On redirect examination, Ragudo again explained that the

statement, “Give me your fucking wallet,” was “shouted very

loudly so I could hear it clearly,” and agreed that he did not

have any doubt as to what he heard.        After calling two additional

police officers, the State then rested its case.

           b.   Motion to Submit Officer Sunada’s Police Report
                into Evidence and Motion for Mistrial

           Prior to the defense beginning its case, Williander

moved to enter into evidence a redacted version of Officer

Sunada’s police report under the hearsay exception in Hawai#i

Rules of Evidence (HRE) Rule 804(b)(8).         While the court


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acknowledged that Officer Sunada was unavailable, it denied

Williander’s request, finding that the hearsay exception did not

apply.

          In response, Williander moved to continue trial until

September, when Officer Sunada would be available.           The State

objected, and also asserted that it was unwilling to stipulate to

any portion of the report.      The court denied the motion to

continue trial.    Williander then moved for a mistrial, arguing

that without Officer Sunada’s testimony, “Going forward at this

point is just impossible for us.”        The State objected, and the

court denied the motion for mistrial.

          c.      The Defense’s Case-in-Chief

          The defense’s only witness was Williander.            Williander

testified that at around 2:00 p.m. on the day of the incident, he

drank about three 40-ounce containers of malt liquor at home.

Williander stated that around 5:00 p.m., he went to a bar, and

was “pretty buzzed” even before he continued to drink “hard

liquor” there.    Williander testified that he was drunk that night

and after his “first few drinks” at the bar, he could not

remember what happened.     Williander stated that the next thing he

remembered was waking up in the Honolulu Police Department (HPD)

“drunk tank” the following day.       Williander testified that he did

not remember assaulting Aihara or making any statements to Aihara

or others in the area.     On cross-examination, Williander

testified that he did not know Aihara or Ragudo.           Williander also


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testified that he did not deny striking Aihara, but that he “just

[didn’t] remember.”     Williander further testified that he did not

remember yelling, “Give me your wallet.”

            d.     Closing Arguments

            The State argued that Williander’s statement, “Give me

your fucking wallet,” indicated that he intended to steal

Aihara’s wallet.     The State also argued that Williander did not

deny striking Aihara or making the statement, “Give me your

fucking wallet.”     At several points in closing arguments, the

State addressed Ragudo’s recollection of Williander’s demand for

the wallet.      The State asserted that Ragudo “was confident” when

he testified that he heard the demand for the wallet and that

“[t]he demand for the wallet was clear and it was unequivocal.”

The State also argued that Ragudo did not “have a bias in this

case.”   At the end of closing arguments, the State asserted that

“those four words are what this case is about -- ‘Give me your

wallet.’”

            Williander argued that while there is “a lot” of

evidence to show that he assaulted Aihara, the State is

“overreaching” with regards to the robbery.          Williander argued

that the only evidence of robbery was “those four words Mr.

Ragudo says he heard GJ say across a six-lane boulevard at 10 PM

on a Friday night.”     Williander argued that Ragudo was not

accurate in his recollection of what Williander said to Aihara.

Williander asserted that “the verbal demand is everything because


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there’s nothing stolen . . . .”

          e.    Renewed Motion for Mistrial

          After closing arguments, Williander renewed his motion

for mistrial, incorporating his previous arguments.           Williander

also argued that the defense was “hammered with” Ragudo’s

testimony that Williander demanded the wallet, particularly in

the State’s closing arguments, because the defense did not have

the opportunity to call Officer Sunada as a witness.            Williander

also argued that, according to his report, Officer Sunada “would

have said eight minutes later . . . [he] was with Mr. Williander

and he was slurring his words, rambling unintelligible verbiage.”

Williander further argued that the defense had no other means to

respond to the State’s arguments.        The court denied Williander’s

renewed motion for mistrial.

          The jury found Williander guilty as charged of robbery

in the second degree.

     3.   Post-trial

          Following the jury’s verdict, Williander made a brief

oral motion for a new trial based on Officer Sunada’s absence, as

the “reliability of Mr. Ragudo’s testimony was critical in the

outcome of this case.”     Williander also noted that he planned to

make the motion in writing.      The court denied the oral motion

without prejudice with leave for Williander to file a written

motion.

          Approximately a week later, Williander filed a motion


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for new trial, reiterating his earlier arguments, and arguing

that he satisfied the factors in State v. Lee2 required for a

grant of a continuance.       The State filed its opposition, arguing

that Officer Sunada’s testimony was “mere impeachment,” as he was

not present during the robbery, and would not have provided

testimony that bears directly upon the issue of guilt.             The State

argued that the “sole reason” Williander sought Officer Sunada’s

testimony was to impeach the credibility of Ragudo’s testimony

that Williander demanded Aihara’s wallet.          The State also argued

that Williander could not use Officer Sunada’s testimony to

negate Williander’s state of mind because the jury cannot

consider self-induced intoxication to negate the defendant’s

state of mind.     The State then argued that Williander could have

attempted to impeach Ragudo’s testimony through Matsui, who would

have provided testimony “consistent with intoxication.”

            At the hearing on Williander’s motion for new trial,

the circuit court acknowledged that “when officers are on injured

leave, they are precluded per HPD policy from appearing in court

to testify,” and noted that the defense did everything it could

to secure Officer Sunada’s attendance.          Williander argued that

“there was no replacement witness for [Officer Sunada],” and that



      2
            Lee held that, to merit a continuance, the defendant must show
that “due diligence has been exercised to obtain the attendance of the
witness, that substantial favorable evidence would be tendered by the witness,
that the witness is available and willing to testify, and that the denial of
the continuance would materially prejudice the defendant.” 9 Haw. App. 600,
604, 856 P.2d 1279, 1282 (1993) (quotation omitted).

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Matsui was not a “comparable witness” because Matsui “did not

have direct contact,” including full visual, smell, and hearing,

with Williander, but rather observed him through the window at 24

Hour Fitness.   The State argued that Officer Sunada’s report did

not provide enough contextual detail to show the “exact degree of

[Williander’s] incoherence.”      The State also contended that

Officer Sunada was a “mere impeachment witness,” and that the

“denial of a continuance to procure the testimony of an

impeachment witness is not an abuse of discretion.”

           The court ultimately denied Williander’s motion for new

trial.   In its Findings of Fact, Conclusions of Law, and Order

Denying Defendant’s Motion for New Trial, the court concluded

that Officer Sunada was not present during the robbery, and thus

would not have provided testimony that bears directly upon the

issue of guilt.    The court found that the only reason Williander

“sought to procure Officer Sunada’s testimony was to impeach the

credibility of Ragudo’s assertion” that he heard Williander

demand Aihara’s wallet.     The court also concluded that Officer

Sunada was unavailable at trial and defense counsel made “all

reasonable efforts” to secure his testimony, but that Officer

Sunada’s unavailability was not good cause for a continuance,

given that Williander “had been granted four prior continuances,

with the April 15, 2015 continuance designated as his last.”

Moreover, the court concluded that Matsui was available to

testify, but that Williander did not call him to testify.             Thus,


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the court concluded that it did not abuse its discretion in

denying Williander’s motion to continue, and that Williander’s

right to a fair trial was not denied.

            The court sentenced Williander to four years of

probation, $1,078.97 restitution to Aihara for medical expenses,

and thirty days’ imprisonment in addition to the time he had

already served.      Williander timely appealed.

B.    ICA Proceedings

            In Williander’s opening brief before the ICA,

Williander argued that the circuit court erred in denying his

motions to continue trial, motions for mistrial, and motions for

new trial.     Williander applied the four factors set forth in

State v. Lee, arguing that these factors supported granting a

continuance.3     In the State’s answering brief, the State argued,

applying the Lee factors, that the court did not abuse its

discretion in denying Williander’s motion for continuance.

            In its Summary Disposition Order, the ICA applied the

Lee factors.     The ICA found that the first and third Lee factors

were satisfied.      However, the ICA determined that Officer

Sunada’s testimony would not have tendered “‘substantial

favorable evidence’” to satisfy the second Lee factor.              The ICA

found that Williander’s testimony that he was intoxicated was not

contradicted by the State’s witnesses.           Thus, Officer Sunada’s

testimony was not needed in order to impeach the State’s

      3
            See supra note 2.

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witnesses on the issue of Williander’s state of intoxication.

          Additionally, the ICA stated:

                Aihara could not understand anything that
          Williander said to him. Ragudo did not testify that
          Williander did not slur his words, only that when
          Williander shouted, Ragudo could hear what Williander
          said. Indeed, Ragudo testified that Williander’s
          speech was at first “garbled.” Conversely, Officer
          Sunada was not present during the offense and could
          not directly contradict Aihara and Ragudo’s version of
          those events. Moreover, there is no indication
          Officer Sunada heard Williander’s speech when
          shouting. Thus, Officer Sunada’s testimony could not
          have impeached Aihara or Ragudo’s testimony.

          The ICA determined that, in any event, under HRS

§ 702-230(2), evidence of Williander’s “self-induced intoxication

was not admissible to negative his state of mind.”

          The ICA also concluded that Williander failed to

satisfy the fourth Lee factor regarding material prejudice.             The

ICA reasoned again that HRS § 702-230(2) “prevents the use of

self-induced intoxication to negate the requisite state of mind,”

and thus found that the denial of the continuance did not

materially prejudice Williander.

          Therefore, the ICA held that the circuit court did not

abuse its discretion in denying Williander a fifth continuance.

In light of its conclusions that Officer Sunada’s testimony was

“not admissible to disprove the requisite intent and at best was

sought for the purposes of impeachment,” the ICA rejected

Williander’s arguments that the circuit court abused its

discretion in denying his motions for a mistrial and a new trial.

Accordingly, the ICA affirmed the circuit court’s conviction and

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probation sentence.

            Chief Judge Nakamura dissented, concluding that there

were valid grounds for a continuance to enable Williander to

present Officer Sunada’s testimony because all four Lee factors

were met.   Thus, Chief Judge Nakamura concluded that the circuit

court abused its discretion in denying Williander’s motion for a

continuance.

            In disagreement with the majority, Chief Judge Nakamura

determined that Williander satisfied the second and fourth Lee

factors.    Chief Judge Nakamura reasoned that the only testimony

offered by the State to show that Williander was guilty of

robbery, as opposed to assault, was Ragudo’s testimony that he

heard Williander yelling, “Give me your wallet.          Give me your

fucking wallet,” while Williander was punching a man.            Chief

Judge Nakamura noted that Aihara stated that he heard a voice,

but could not make out what was said, and had “no recollection of

anyone demanding his wallet before he was assaulted; he never

felt anyone reach into his pocket to try and take his wallet; he

had no recollection of anyone touching his pants anywhere; and he

still had his wallet after the assault.”         Additionally, Chief

Judge Nakamura noted that Williander testified that he had

“prodigious” amounts of alcohol and had no recollection of the

charged incident, and that Officer Sunada’s police report stated

that Williander “smelled of alcohol and was slurring his words

and rambling unintelligible verbiage.”         Chief Judge Nakamura


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reasoned that Officer Sunada’s observations, as reflected in his

police report, “provided the best and perhaps the only means for

Williander to meaningfully challenge and cast doubt on Ragudo’s

testimony that he heard Williander make a demand for Aihara’s

wallet.”

                        III.    Standards of Review

A.    Motion for Continuance

            “A motion for continuance is addressed to the sound

discretion of the trial court, and the court’s ruling will not be

disturbed on appeal absent a showing of abuse of that

discretion.”     State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279,

1281 (1993).     “Generally, to constitute an abuse, it must appear

that the court clearly exceeded the bounds of reason or

disregarded rules or principles of law or practice to the

substantial detriment of a party litigant.”            State v. Crisostomo,

94 Hawai#i 282, 287, 12 P.3d 873, 878 (2000) (internal quotation

marks, citation, and brackets omitted).

B.    Motion for New Trial

            As a general matter, the granting or denial of a
            motion for new trial is within the sound discretion of
            the trial court and will not be disturbed absent a
            clear abuse of discretion. . . . 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. Yamada, 108 Hawai#i 474, 478, 122 P.3d 254, 258 (2005)

(quoting State v. Kim, 103 Hawai#i 285, 290, 81 P.3d 1200, 1205

(2003)).

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C.    Motion for Mistrial

            The denial of a motion for mistrial is within the
            sound discretion of the trial court and will not be
            upset absent a clear abuse of discretion. 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. Lagat, 97 Hawai#i 492, 495, 40 P.3d 894, 897 (2002)

(internal quotation marks and citations omitted).

                              IV.   Discussion

            There is one issue before this court:

            Whether the ICA gravely erred in holding that the
            circuit court did not err in denying Williander’s
            Motions to Continue Trial, Motions for Mistrial, and
            Motions for New Trial based on defense witness Officer
            Sunada’s unavailability.

            This court must consider whether the circuit court

violated Williander’s right to compulsory process to obtain

witnesses in his favor by denying Williander’s motion to continue

trial to obtain Officer Sunada as a witness.            See State v.

Valmoja, 56 Haw. 452, 454, 540 P.2d 63, 64 (1975).

            The due process guarantee of the Federal and Hawaii
            constitutions serves to protect the right of an
            accused in a criminal case to a fundamentally fair
            trial. As relevant here, a fundamental element of due
            process of law is the right of compulsory process.
            The right to compulsory process affords a defendant in
            all criminal prosecutions, not only the power to
            compel attendance of witnesses, but also the right to
            have those witnesses heard.

            Although the right to compulsory process is of
            paramount importance in assuring a defendant the right
            to a meaningful defense and a fair trial, it does not
            guarantee the right to compel attendance and testimony
            of all potential witness absolutely. In other words,


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            the right is not without just limitations.

State v. Acker, 133 Hawai#i 253, 281, 327 P.3d 931, 959 (2014)

(quotation marks and citations omitted).

            Both Williander and the State utilize the Lee test4 in

evaluating whether a motion to continue should have been granted.

In discussing the Lee test, this court has stated:

            This court has not explicitly adopted the Lee test.
            However, we have often applied some combination of
            these factors in evaluating a motion for a continuance
            to obtain the testimony of an unavailable witness at
            trial. In State v. Valmoja, 56 Haw. 452, 540 P.2d 63
            (1975), we held that the trial court abused its
            discretion in denying a motion for a continuance where
            the defendant exercised due diligence in attempting to
            obtain the testimony of the absent witness and the
            materiality of the witness’s evidence was apparent. 56
            Haw. at 454, 540 P.2d at 64. In State v. Mara, 98
            Hawai#i 1, 41 P.3d 157 (2002), we concluded that the
            circuit court did not abuse its discretion in denying
            the defendant’s request for a continuance where the
            defendant failed to show that he was materially
            prejudiced by his inability to present the
            unidentified witness’s testimony. 98 Hawai#i at
            14–15, 41 P.3d at 170–71.

State v. Villiarimo, 132 Hawai#i 209, 223, 320 P.3d 874, 888

(2014).

            We conclude that the Lee test goes too far in limiting

the right to compulsory process, thus creating unnecessary

burdens on defendants who wish to exercise this right.               For the

reasons presented below, we hold that the relevant factors are:



      4
            The Lee test   includes the following factors: “due diligence has
been exercised to obtain   the attendance of the witness, that substantial
favorable evidence would   be tendered by the witness, that the witness is
available and willing to   testify, and that the denial of the continuance would
materially prejudice the   defendant.” 9 Haw. App. at 604, 856 P.2d at 1282.

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(1) whether counsel exercised due diligence in seeking to obtain

the attendance of the witness; and (2) whether the witness

provides relevant and material testimony that benefits the

defendant.

            Washington v. State of Texas created the limitation on

the right to compulsory process that the testimony has to be

relevant and material to the defense.         388 U.S. 14, 23 (1967);

see Valmoja 56 Haw. at 454, 540 P.2d at 64.           Later cases

clarified that the testimony must benefit the defendant.             See

United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (to

establish a violation of this right, the defendant must “make

some plausible showing of how [the] testimony would have been

both material and favorable to his defense”); State v. Mitake, 64

Haw. 217, 224, 638 P.2d 324, 330 (1981) (to establish a violation

of this right, the defendant must show “that the testimony denied

the defendant would have been helpful to him [or her]”); State v.

Savitz, 67 Haw. 59, 60–61, 677 P.2d 465, 466–67 (1984); State v.

Diaz, 100 Hawai#i 210, 226, 58 P.3d 1257, 1273 (2002); Acker, 133

Hawai#i at 281, 327 P.3d at 959.5

            This court has also held that a defendant seeking a

continuance must make a showing that defense counsel exercised

due diligence in obtaining the attendance of witnesses.             See


      5
            The U.S. Supreme Court explained that the testimony must be
beneficial to the defendant since the Sixth Amendment guarantees a defendant
in a criminal case “compulsory process for obtaining witnesses in his favor.”
Valenzuela-Bernal, 458 U.S. at 867 (quoting U.S. Const. amend. VI (emphasis
added)).

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Valmoja 56 Haw. at 454, 540 P.2d at 64; Mara, 98 Hawai#i at 8-9,

41 P.3d at 164-65.

            Accordingly, we hold that the relevant factors to

consider in evaluating whether a motion for continuance should be

granted are: (1) whether counsel exercised due diligence in

seeking to obtain the attendance of the witness; and (2) whether

the witness provides relevant and material testimony that

benefits the defendant.6       These factors protect the defendant’s

right to compulsory process while providing “just limitations” on

the defendant’s ability to obtain witnesses in the defendant’s

favor.    See Acker, 133 Hawai#i at 281–82, 327 P.3d at 959–60.

A.    Due Diligence

            Defense counsel exercised due diligence in seeking to

obtain Officer Sunada as a witness.          On June 16, 2015, Officer

Sunada was served with a subpoena for the July 13, 2015 trial.

Officer Sunada was not able to testify at the trial because he

was on injured leave at the time.          In Valmoja, this court

concluded that defense counsel exercised due diligence in serving

subpoenas on the absent witnesses at a reasonable period of time

prior to trial.      56 Haw. at 454, 540 P.2d at 64.         In contrast,


      6
            Lee is overruled to the extent that it holds that the following
factors should be utilized in evaluating a motion for continuance: (1)
“substantial favorable evidence would be tendered by the witness”; (2) “the
witness is available and willing to testify”; and (3) “the denial of the
continuance would materially prejudice the defendant.” See Lee, 9 Haw. App.
at 604, 856 P.2d at 1282. As noted above, the relevant standard is whether
the witness will provide relevant and material testimony that benefits the
defendant. And while the availability of the witness might be relevant to the
question of whether the testimony will be beneficial to the defendant, it is
not a distinct, dispositive factor.

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defense counsel in Lee, where the ICA held that the trial court

did not abuse its discretion in denying the continuance, did not

subpoena the potential defense witness.           9 Haw. App. at 604, 856

P.2d at 1282.     Thus, Williander’s defense counsel exercised due

diligence by properly subpoenaing Officer Sunada.

B.    Relevant and Material Testimony that Benefits Williander

            Officer Sunada’s testimony was relevant and material

testimony that benefitted Williander.          As an initial matter,

Officer Sunada’s testimony was inadmissible to show self-induced

intoxication to negate Williander’s state of mind.             See HRS

§ 702-230; State v. Souza, 72 Haw. 246, 249, 813 P.2d 1384, 1386

(1991) (“[T]he operation of § 702-230 does not deprive a

defendant of the opportunity to present evidence to rebut the

mens rea element of the crime.         The statute merely prohibits the

jury from considering self-induced intoxication to negate the

defendant’s state of mind.”).         Thus, Officer Sunada’s testimony

was admissible to show that: (1) due to intoxication, Williander

was not physically able to make a verbal demand for Aihara’s

wallet; and (2) to impeach Ragudo’s testimony that Williander

made a verbal demand for the wallet.

            Williander agrees with Chief Judge Nakamura’s dissent,

which concluded that Officer Sunada’s testimony provided “the

best and perhaps the only means for Williander to meaningfully

challenge and cast doubt on Ragudo’s testimony.”

            The State responds that Officer Sunada’s testimony


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regarding the alcoholic odor coming from Williander would not

provide impeachment evidence of Aihara or Ragudo’s testimony

because Aihara’s testimony--that Williander’s speech was

“garbled” and that he could not “make out what [Williander] . . .

said”--was consistent with Officer Sunada’s testimony that

Williander was “slurring his words and rambling unintelligible

verbiage.”

          The State further contends that Officer Sunada’s

testimony “seems to suggest” that he “recognized certain

utterances [Williander] made as words, albeit slurred or making

no sense.”   Thus, the State argues that there is no reason to

conclude that Officer Sunada would have opined Williander was

unable to utter, “Give me your fucking wallet,” and that the ICA

did not err in concluding that the testimony was not substantial

favorable evidence for Williander.        Therefore, the State argues

that the ICA did not err in concluding that Williander’s

contention that Officer Sunada’s testimony provided Williander’s

only legal defense was without merit.

          To determine the importance of Officer Sunada’s

testimony, we must look to HRS § 708-841(1)(a), which states that

a person is guilty of robbery in the second degree when “in the

course of committing theft,” the person “uses force against the

person of anyone present with the intent to overcome that

person’s physical resistance or physical power of resistance.”

Here, the only testimony offered by the State to support a


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finding that Williander was in the course of committing theft

when he exerted force upon Aihara was Ragudo’s testimony that

from across Kapi#olani Boulevard, he heard Williander yell, “Give

me your wallet.    Give me your fucking wallet.”        Ragudo stated

that while he heard Williander demand the wallet twice, “the

first demand was kind of garbled,” but that the second demand was

clear: “Give me your fucking wallet.”

            Aihara testified that during the incident, he “heard a

voice,” but “couldn’t make it out.”        Aihara also stated that he

had no recollection of anyone demanding his wallet, reaching into

his pocket to try to take his wallet, or touching his pants.

            Given that Ragudo’s testimony was significant evidence

to support the premise that force was used in order to carry out

a theft, Officer Sunada’s testimony was vital to discredit

Ragudo’s credibility.     Officer Sunada’s testimony that Williander

was “slurring his words and rambling unintelligible verbiage”

would have been evidence from which Williander could argue that

he was unable to clearly yell the alleged demand.           Thus, Officer

Sunada’s testimony could have provided relevant and material

evidence that benefitted Williander if Officer Sunada testified

at trial.

            Accordingly, we conclude that, in denying the motion

for continuance, the circuit court violated Williander’s right to

compulsory process.




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C.    The Circuit Court Abused its Discretion in Denying
      Williander’s Motion to Continue Trial.

            By properly subpoenaing Officer Sunada, Williander’s

defense counsel exercised due diligence in seeking to obtain the

witness.    Further, Officer Sunada’s observations are relevant and

material testimony that benefits Williander because the

observations provide essential support for perhaps the only

meaningful defense for Williander: that Williander was physically

unable to make a verbal demand for Aihara’s wallet.             The denial

of the opportunity to present Officer Sunada as a witness

violated Williander’s right to compulsory process.             Therefore, we

conclude that the circuit court abused its discretion in denying

Williander’s motion to continue trial.           Accordingly, we also

conclude that the circuit court abused its discretion in denying

Williander’s motions for mistrial and motion for new trial.

                               V.   Conclusion

            For the foregoing reasons, we vacate the ICA’s July 26,

2017 judgment on appeal and the circuit court’s September 22,

2015 judgment of conviction and probation sentence, and remand to

the circuit court for further proceedings consistent with this

opinion.

Taryn R. Tomasa                            /s/ Mark E. Recktenwald
for petitioner
                                           /s/ Paula A. Nakayama
Donn Fudo for
respondent                                 /s/ Sabrina S. McKenna

                                           /s/ Richard W. Pollack

                                           /s/ Michael D. Wilson

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