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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-13-0003039
                                                                12-AUG-2016
                                                                08:03 AM




                              SCWC-13-0003039

          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

           STATE OF HAWAIʻI, Petitioner/Plaintiff-Appellee,

                                      vs.

   VICENTE KOTEKAPIKA HILARIO, Respondent/Defendant-Appellant.
________________________________________________________________

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-13-0003039; CR. NO. 11-1-0023)

                             MEMORANDUM OPINION
 (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

                              I.   Introduction

       On January 19, 2011, Vicente Kotekapika Hilario

(“Defendant” or “Hilario”) was charged with five counts related

to the December 17, 2010 shooting death of Aureo Moore

(“Moore”): Murder in the First Degree in violation of Hawaiʻi

Revised Statutes (“HRS”) § 707-701(1)(c) (2014) (Count 1),

Murder in the Second Degree in violation of HRS § 707-701.5
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(2014) (Count 2), Retaliating Against a Witness in violation of

HRS § 710-1072.2 (2014) (Count 3), Intimidating a Witness in

violation of HRS “Section 710-1071(1)(a/b/c) [sic]” (2014)

(Count 4), and Bribery of a Witness in violation of HRS “Section

710-1070(1)(a/b/c) [sic]” (2014) (Count 5).               After a jury found

Hilario guilty of all counts except Count 2,1 a “Judgment Guilty

Conviction and Sentence” (“Judgment”) was entered by the Circuit

Court of the Fifth Circuit (“circuit court” or “trial court”) on

July 25, 2013.         Hilario was sentenced to life imprisonment.2

          Hilario timely appealed the Judgment to the ICA, arguing,

among other things, that the circuit court erred when it denied

his Motion to Dismiss based on Hawaiʻi Rules of Penal Procedure

(“HRPP”) Rule 48 (“Rule 48”) (2000).             The rule states, in part:

               Except in the case of traffic offenses that are not
               punishable by imprisonment, the court shall, on motion of
               the defendant, dismiss the charge, with or without
               prejudice in its discretion, if trial is not commenced
               within 6 months [i.e., 180 days] . . . from the date of
               arrest if bail is set or from the filing of the charge,
               whichever is sooner, on any offense based on the same
               conduct or arising from the same criminal episode for which
               the arrest or charge was made[.]

HRPP Rule 48(b)(1); see State v. Jackson, 81 Hawaiʻi 39, 50, 912

P.2d 71, 82 (1996) (construing 6 months as 180 days) (citing

State v. Hoey, 77 Hawaiʻi 17, 28, 881 P.2d 504, 515 (1994)).

1
   The jury did not reach the charge in Count 2, Murder in the Second Degree,
as it found Hilario guilty as to Count 1, Murder in the First Degree.
2
   For the purposes of sentencing, Counts 3 and 4 were merged with Count 1.
As to Count 1, Hilario was sentenced to life imprisonment without the
possibility of parole. As to Count 5, Hilario was sentenced to five years of
imprisonment. The terms are to run consecutively.

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According to Hilario, even when considering permissible

“excluded periods,” the delay of his trial to January 7, 2013

caused a violation of Rule 48.         A majority of the judges on the

ICA panel agreed, noting that the period from September 17, 2012

(the trial date that was set prior to January 7, 2013) to

December 20, 2012 (the date Hilario filed his Motion to Dismiss)

(“the relevant time period”) should not have been excluded for

Rule 48 purposes because the delay resulted from the circuit

court’s erroneous determination that a defense witness was an

alibi witness, consequently requiring additional time to make

necessary disclosures; thus, Hilario’s trial commenced beyond

the prescribed period in Rule 48, and should have been dismissed

upon Hilario’s motion.

       Accordingly, the ICA “vacate[d] [the] July 25, 2013

Judgment and remand[ed] [the case] for dismissal of the charges

with or without prejudice in the discretion of the Circuit Court

of the Fifth Circuit.”       State v. Hilario, No. CAAP-13-0003039,

at 17–18 (App. Mar. 18, 2016) (mem.).          Associate Judge Lisa M.

Ginoza dissented, stating that the circuit court correctly

excluded the relevant time period from the 180-day limit imposed

by Rule 48 because the delay was caused by Hilario’s decision to




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file a Notice of Alibi, and not any error of the circuit court.

See id. at 193 (Ginoza, J., dissenting).

          On April 21, 2016, the State of Hawaiʻi (“State”) timely

applied for writ of certiorari (“Application”), presenting two

questions:

               [1]) Whether the ICA gravely erred by rejecting the trial
               court’s determination that a witness might give alibi
               testimony, where he was expected to testify that he was
               present at the shooting, and could have reasonably
               testified as to the defendant’s whereabouts nearby.

               [2]) Even assuming that the ICA correctly determined that
               a percipient witness can never be deemed an alibi witness,
               the ICA nevertheless gravely erred by failing to determine
               whether the trial court abused its discretion in continuing
               the trial, and charging the delay to the defense, due to
               the parties’ anticipated alibi disclosures, and outstanding
               unrelated discovery.

We granted the Application on June 1, 2016.

          Upon review, we conclude the ICA erred in vacating the July

25, 2013 Judgment and remanding the case for dismissal on the

basis that the delay in trial was not properly excluded under

HRPP Rule 48 because the circuit court incorrectly characterized

a defense witness as an alibi witness.              For the following

reasons, we conclude that it was not clearly erroneous for the

circuit court to exclude the relevant time period for Rule 48

purposes.




3
   The ICA Memorandum Opinion is available in the docket at entry 277.
Citations to Judge Ginoza’s dissent employs the pagination of this PDF
document.

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                                 II.   Background

A.        Circuit Court Proceedings

          1.   Proceedings Prior to the Setting of the September 17,
               2012 Trial Date

          Hilario was arrested on December 17, 2010 and arraigned on

January 25, 2011.         Trial was then set for April 25, 2011.           For

reasons not now at issue, trial was continued to May 14, 2012.

It is uncontested that 129 days elapsed between December 17,

2010 and May 14, 2012 that are included in the 180-day “speedy

trial” limitation set forth by Rule 48.               See Hilario, mem. op.

at 17.

          The State estimated the trial to be between four to six

weeks long.        At a hearing on April 12, 2012, the circuit court

judge4 informed the parties that he would be off-island from June

13 to June 26, 2012.          Because of the estimated duration of the

trial, he asked the parties how they would like to proceed given

that he may need to be out of town prior to the trial’s

conclusion.        Both parties opposed having a substantial break

during the course of the trial.               As Hilario did not wish to

advance the trial, and because defense counsel was unavailable




4
     The Honoroable Randal G.B. Valenciano presided.


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from August 9 to 20, 2012, given the court’s availability, trial

was re-set for September 17, 2012.5

          2.   Proceedings Related to the February 23, 2012 Defense
               Investigator’s Report Containing Jens Kyler Hansen-
               Loo’s Statement

          A February 23, 2012 defense investigator’s report — which

recounted the investigator’s January 12, 2012 conversation with

Jens Kyler Hansen-Loo (“Hansen-Loo”) — stated that Hansen-Loo

saw a family friend, David Manaku (“Manaku”), shoot Moore:

               [O]n the morning of the shooting, [Hansen-Loo] was at his
               grandmother’s home in Anahola. When he awoke, . . .
               Hilario and David Manaku had returned from Kapaa and were
               making plans of going fishing. They all left in
               [Hilario’s] car and both [Hansen-Loo] and Manaku were
               dropped off on the back road between Anahola Beach and the
               Hawaiian Homes. They walked down the road a short distance
               then went over the metal guard rail and were standing in
               the bushes. A short while later [Hansen-Loo] heard [a]
               vehicle stop, a door slam[,] and a Caucasian male got out
               and the car drove off towards the beach. The male stood
               under a tree next to the road. [Hansen-Loo] added that
               Manaku took out a handgun from his waist band and walked
               towards the male from the back and the next thing he knew,
               Manaku shoots the guy a couple of times and the guy
               crouches down and Manaku shoots him again. The male falls
               to the ground and they run back up the road and head into a
               dirt road. [Hansen-Loo] stated that he was shocked and had
               no idea that Manaku was going to shoot the guy.

The February 2012 statement was at odds with Hansen-Loo’s

statement to police in 2010, which indicated he “didn’t know

what had happened.”

          The State received a copy of the investigator’s report in

March 2012.        According to the State, because Hansen-Loo, a

5
   The ICA determined that the period between May 14 and September 17, 2012,
was excludable for the purposes of Rule 48. See Hilario, mem. op. at 12.
Hilario does not contest this conclusion in his Application; therefore, it is
not further discussed in this memorandum.

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“self-proclaimed percipient witness to Moore’s murder,” “refused

to speak to [Kauaʻi Police Department] investigators about the

facts of this case since the January 12, 2102 [sic], statement

to [the defense investigator],” the State filed a “Motion for an

HRPP 15 Deposition of Kyler Hansen Loo” on May 3, 2012.              The

circuit court orally granted the motion on May 22, 2012.

       At the scheduled June 14, 2012 deposition of Hansen-Loo,

without the benefit of counsel, Hansen-Loo declined to answer

many of the State’s questions, asserting his Fifth Amendment

right against self-incrimination.          The State then filed a

“Motion for an Order Compelling Discovery” on June 22, 2012,

requesting that the circuit court issue an order compelling

Hansen-Loo to answer deposition questions and produce documents.

At the July 3, 2012 hearing on the matter, the court appointed

counsel for Hansen-Loo.       At a July 17, 2012 status conference,

Hansen-Loo’s counsel stated that Hansen-Loo would be invoking

his Fifth Amendment right to remain silent at any future

depositions.     This in fact occurred at Hansen-Loo’s rescheduled

deposition on August 3, 2012.

       On August 10, 2012, the State filed a “Motion for a Court

Order Preventing Jens Kyler Hansen-Loo from Testifying at Trial,

or, in the Alternative[,] Disqualifying [Hilario’s Counsel,]

Keith Shigetomi” (“Motion to Prevent”).           According to the State,

Hansen-Loo’s February 2012 statement to the defense investigator
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“is simply a legally inadequate attempt to provide HRPP [Rule]

12.1, ‘hip pocket’ alibi evidence for Hilario.”               The State

explained:

                     If the defense wishes to argue Hilario was somewhere
               else, doing something else, e.g., something other than
               murdering Moore . . . , HRPP [Rule] 12.1 controls. Hilario
               must state -- in writing -- where he was when Moore was
               murdered, if not, the law allows no alibi evidence.

                     Hilario cannot rely upon [Hansen-]Loo to establish a
               phony alibi; Hilario must comply with HRPP [Rule] 12.1.

The State argued that for Hilario’s non-compliance with the

notice and disclosure requirements of HRPP Rule 12.1,6 the


6
               Rule 12.1 NOTICE OF ALIBI
               (a)   Notice by defendant. If a defendant intends to rely
               upon the defense of alibi, the defendant shall, within the
               time provided for the filing of pretrial motions or at such
               later time as the court may direct, notify the prosecutor
               in writing of such intention and file a copy of such notice
               with the court.
               (b)   Disclosure of information and witnesses. Upon
               receipt of notice that the defendant intends to rely upon
               an alibi defense, the prosecutor shall inform the defendant
               in writing of the specific time, date, and place at which
               the offense is alleged to have been committed. The
               defendant shall then inform the prosecutor in writing of
               the specific place at which the defendant claims to have
               been at the time of the alleged offense and the names and
               addresses of the witnesses upon whom the defendant intends
               to rely to establish such alibi. The prosecutor shall then
               inform the defendant in writing of the names and addresses
               of the witnesses upon whom the government intends to rely
               to establish defendant’s presence at the scene of the
               alleged offense.
               (c)   Time of giving information. The court may fix the
               time within which the exchange of information referred to
               in section (b) shall be accomplished.
               (d)   . . .
               (e)   Failure to comply. Upon the failure of either party
               to comply with the requirements of this rule, the court may
               exclude the testimony of any undisclosed witness offered by
               such party as to the defendant’s absence from, or presence
               at, the scene of the alleged offense. This rule shall not
               limit the right of the defendant to testify in the
               defendant’s own behalf.
               (f)   Exceptions. For good cause shown, the court may
                                                                (continued . . .)
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circuit court should sanction Hilario by excluding Hansen-Loo’s

testimony.7

          On August 21, 2012, the State requested a chambers

conference.        At the conference, the trial court indicated that

it was inclined to require a notice of alibi before permitting

Hansen-Loo to testify.8          Hilario then filed a “Notice of Alibi”

(“Notice”) on August 22, 2012, stating that he “hereby gives

notice pursuant to Rule 12.1 of the Hawaii Rules of Penal

Procedure of his intention to rely upon the defense of alibi.”

          Two days later on August 24, 2012, a hearing was held on

several motions as well as Hilario’s August 22, 2012 Notice of

Alibi.       The court opened the hearing by stating that it “would

like to address first . . . the notice of alibi.”

          Hilario’s counsel explained that he filed the Notice

because of the trial court’s statements at the chambers

conference following the filing of the State’s Motion to

Prevent:

                     Your Honor, I received the State’s motion for court
               order preventing Jens Kyler Hansen-Loo from testifying at

(. . . continued)

               grant an exception to any of the requirements of this rule.

HRPP Rule 12.1 (emphasis added).
7
   The State also argued in the alternative that Hilario’s counsel “be
disqualified from representing Hilario because he is a witness relevant to
Loo’s credibility.” This issue is not before the court.
8
   Content of the chambers conference is inferred from references by counsel
at the August 24, 2012 hearing.

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            trial, or in the alternative, to disqualify me on Tuesday
            the 22nd, or the 21st. And upon my review, although I
            disagree with it, I don’t believe that -- one of the basis
            that they’re saying to prevent Hansen-Loo from testifying
            is that he is an alibi witness and that proper notice was
            not given as to I guess his status as an alibi witness.
            And I disagree with that.

                  But in the abundance of caution, I filed that notice
            of alibi. The purpose of the notice of alibi is to give
            notice of a witness, and they are fully aware of Hansen-
            Loo’s status as a witness from March of this year. So,
            it’s not as if we were hiding that witness or anything like
            that. They knew about that witness, and the purpose of the
            rule is that they have notice of the witness.

                  So, we gave them that a long time ago. Now, I still
            -- my position is still that he’s not an alibi witness.
            However, I’m not about to tell the Court that I want him
            prevented from testifying, because obviously he is a
            critical witness. But our position as to the notice of
            alibi is that it’s not necessary. Now, I know from our
            discussions in chambers, the Court disagrees. And the
            Court finds that Hansen-Loo is an alibi witness, that the
            Court is going to require that the steps set forth in Rule
            12.1 be followed. And so our position is that although
            he’s not -- we don’t consider him an alibi witness,
            obviously we’re not going to forego calling him as a
            witness.

(emphasis added).      Hilario’s counsel repeatedly emphasized

that the defense did not view Hansen-Loo as an alibi

witness:

            And I just want to put on the record our position is that
            we don’t believe he’s an alibi witness.

                  Because this witness will not say or is unable to say
            where Vicente Hilario was on the day in question. What
            that witness does say, however, is that he was present at
            the time of the shooting, that he witnessed the shooting,
            and that it was not Vicente Hilario who did the shooting. .
            . .

Over defense counsel’s objections, the court explained that




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Hansen-Loo’s testimony could support an alibi defense,9 and

therefore disclosures pursuant to Rule 12.1, starting with the

Notice, were required.

          Despite the Notice’s untimeliness, the court then declined

to strike it, as the court wished to allow Hilario the

opportunity to present every available defense.10               Having allowed

the Notice of Alibi to stand, the court noted that once

exchanges were made pursuant to Rule 12.1(b), “the Prosecutor

has the discretion to conduct an investigation on any

information that’s being exchanged, so that’s going to take

time.       And the reality is that with the trial date set for

September 17th, pursuing this defense is not going to allow the

trial to start within that time frame.”              In other words, the

court reasoned that “by allowing the Defendant to pursue the

alibi defense, there has to be a continuance of the trial date.”

The court was inclined to charge the delay to the defense


9
     The circuit court stated:

                     But wouldn’t that be absence, which is absence of a
               person, which is an alibi? Because when you look at
               12.1(e) about the testimony, it talks about not only the
               absence, but also the presence at the scene. So, absence
               from the scene, presence at the scene, those all pertain to
               the alibi defense.
10
      The circuit court explained:

               [T]he first issue for the Court is whether to strike it
               and not allow any testimony regarding the alibi. And that,
               from the Court’s perspective . . . would be detrimental to
               Mr. Hilario in the presentation of his defense to not allow
               him to present a defense that is available to him.

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because the delay was “generated by th[e] notice of alibi,” but

heard argument before making its decision.

       The State asserted that it was “prepared and ready to

proceed . . . on September 17th.”           After explaining that she

understood the court’s inclination to permit Hilario to pursue

an alibi defense despite the tardily filed Notice, the

prosecutor argued that “Rule 48[(c)(4)(ii)11] . . . indicates

that if there is a continuance granted to allow the Prosecutor

additional time to prepare the Prosecutor’s case, and additional

time is justified because of the exceptional circumstances . . .

that time should be excluded.”          The State expressed that after

necessary disclosures were made pursuant to Rule 12.1, it “would

need additional time to follow up to do further investigation.”

       Hilario’s counsel did not directly address the Rule

48(c)(4)(ii) issue that was raised by the State, but instead



11
     Excludable periods under Rule 48 include:

             periods that delay the commencement of trial and are caused
             by a continuance granted at the request of the prosecutor
             if:
                   (i) the continuance is granted because of the
             unavailability of evidence material to the prosecution’s
             case, when the prosecutor has exercised due diligence to
             obtain such evidence and there are reasonable grounds to
             believe that such evidence will be available at a later
             date; or
                   (ii) the continuance is granted to allow the
             prosecutor additional time to prepare the prosecutor’s case
             and additional time is justified because of the exceptional
             circumstances of the case[.]

HRPP Rule 48(c)(4).

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reiterated his argument that Hansen-Loo was not an alibi

witness:

                  Your Honor, we just want to be clear that our
            position again is that it’s not an alibi, that [Hansen-Loo]
            simply is an eyewitness. He’s also going to impeach David
            Manaku, who says he saw Mr. Hilario do the shooting;
            whereas, the witness is saying he saw David Manaku do the
            shooting.

                  So, our position is it’s not an alibi. And we don’t
            feel that a continuance is generated because of that, but I
            understand the Court’s position. We just want to make it
            clear that that’s our position.

Having heard the parties’ arguments, the court set

disclosure deadlines that extended past September 17, 2012,

re-set trial for January 7, 2013, and excluded the period

of continuance for Rule 48 purposes.

       In sum, the circuit court concluded at the hearing: (1)

Hansen-Loo was an alibi witness because he would testify that

Hilario was absent from the scene; (2) the Notice of Alibi was

untimely filed on August 22, 2012; (3) precluding Hansen-Loo’s

testimony was not an appropriate sanction for the untimely

filing of the Notice, as Hilario should be permitted to present

an available defense; (4) the Notice triggered mandatory HRPP

Rule 12 disclosures and deadlines, thereby preventing trial from

commencing on September 17, 2012; and (5) accordingly, “[f]or

purposes of Rule 48 and for speedy and public trial, time is

charged to Mr. Hilario.”        Trial was re-set to begin with jury

selection on January 7, 2013.



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       On September 18, 2012, Hilario filed a “Motion for

Reconsideration of Determination of Alibi Defense” (“Motion to

Reconsider”), asserting the following based on the records and

files of the case:

            b. . . . Hansen Loo has stated that he was present at the
            scene of the shooting of decedent, that he did not see
            Defendant at the scene of the shooting and that David
            Manaku shot the decedent;

            c. Hansen Loo is unable to say where Defendant was at the
            time of the shooting [and therefore his testimony does not
            comprise an alibi defense];

            . . .

            i. Defendant requests the Court to reconsider its
            determination that Hansen Loo’s proffered testimony to be
            alibi evidence;

            j. Defendant has no witness to say where Defendant was at
            the time of the alleged incident other than Defendant [and
            he has a right under the federal and State constitutions
            against self-incrimination, and should not be required to
            make pre-trial statements pursuant to HRPP Rule 12].

The State argued in response that Hansen-Loo would testify that

“Hilario was not at the murder scene,” which is an alibi.                The

State further argued that because “Hilario has filed a notice of

intent to rely upon alibi[,] HRPP 12.1 applies and must be

enforced.”     At an October 2, 2012 hearing, the trial court

denied the Motion to Reconsider, stating that Hansen-Loo would

be permitted to testify so long as Hilario complied with HRPP

Rule 12.1.     The denial order was entered on October 12, 2012.

       On December 20, 2012, Hilario filed a “Motion to Dismiss

for Violation of: (1) Rule 48 of the Hawaii Rules of Speedy

Trial and (2) Right to Speedy Trial” (“Motion to Dismiss”),

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arguing, among other things, that the delay in trial caused by

the court’s decision that Hansen-Loo was an alibi witness should

have been charged to the State, not Hilario.            According to

Hilario, this non-excludable time period, coupled with the non-

excludable period from the date of Hilario’s arrest to the date

of the first trial setting, exceeded the 180-day speedy trial

period required under HRPP Rule 48.          Moreover, “the delay in

bringing Defendant to trial . . . has crippled defense

preparation through loss of recall and possible loss of

witness(es).      Because of the substantial and irreversible

prejudice caused by the delay . . . [,] [d]ismissal with

prejudice is mandated.”        The State filed a response on December

24, 2012.

       The circuit court held a hearing on the motion on December

27, 2012.     Hilario argued several periods should not have been

excluded for Rule 48 purposes.         He did not provide a specific

argument with respect to whether any portion of the relevant

time period was excludable, other than to recount the

circumstances leading to the trial’s continuation.12             After

hearing argument, the court explained:

12
     Defense counsel stated:

             [T]he Court had set for [sic] the trial date for August
             27th. And then again, there were motions filed. And I
             believe it was the State’s motion to strike or to prohibit
             the calling of Jens Kyler Hansen-Loo based on the fact that
             the State -- the State’s position was that he was an alibi
                                                              (continued . . .)
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            [W]hat happens is when we get to the August 24 date, this
            is where we get into the discussion regarding the alibi
            defense and the requirements of the alibi defense and Rule
            12.1. The option for the Court at that time was to not
            allow it, because, first of all, the Court made a ruling
            over the objection of the Defendant that the testimony
            presented was, in essence, an alibi type defense.

                  And so, that -- the objection was already noted.
            Once the Court made that ruling, the options for the Court
            was to not allow it or to do Weinberg versus Dixon-Weinberg
            type analysis where you look for other options. And the
            other option was to move the trial to give the Defendant an
            opportunity to comply with 12.1, which was a less drastic
            measure. And so, that is what the Court did to give Mr.
            Hilario the opportunity to present an alibi defense and to
            comply with the requirements of 12.1, which are rather
            specific. And whether Mr. Hilario chooses to use that or
            chooses not to use that, those are within his discretion at
            time of trial.

                  And so, the Court finds from the August 24 date to
            the trial date that is set is also not a violation or it
            doesn’t come towards Rule 48 for speedy and public trial.

The court ultimately denied the Motion to Dismiss.

       Trial commenced on January 7, 2013.         On March 8, 2013, a

jury found Hilario guilty of Counts 1, 3, 4, and 5.             Judgment

was entered by the circuit court on July 25, 2013.             Hilario was

sentenced to life imprisonment.

B.     Appeal to the ICA

       Hilario timely filed a Notice of Appeal with the ICA.                In

his opening brief before the ICA, Hilario argued, among other


(. . . continued)
            witness for which no notice was given. And on August 24th,
            the Court ruled over our objection that Mr. Hansen-Loo was
            an alibi witness, and therefore, necessitated the filing of
            a notice of alibi as well as the required responses under
            the rule.

                  And at that point, the Court continued the trial to
            January 7th.


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things, that Hansen-Loo was not an alibi witness, and “[t]he

trial court erroneously denied Hilario’s Motion to Dismiss”

because it failed to count the period “from September 19,

2012[13] to December 20, 2102 [sic][14]” against the State, as the

delay was due to alibi disclosure procedures erroneously imposed

on Hilario.

       The State entertained the argument in its answering brief

that under certain circumstances Hansen-Loo may not be an alibi

witness:

            If [Hansen-Loo] was the only defense witness to establish
            that [Hilario] was not at the shooting — via [Hansen-Loo’s]
            testimony that he was present and [Hilario] was not — then
            the State does not believe this is technically alibi
            testimony because under Rule 12.1, there would be nothing
            to disclose: a witness who is present at the crime and saw
            that the defendant was not there, cannot establish the
            location of the defendant at the time the crime was
            committed.

(emphasis added).      Nevertheless, the State countered that the

continuation of trial from September 17, 2012 to January 7, 2013

was made with Hilario’s consent because, with respect to the

issue of Hansen-Loo’s testimony, Hilario failed to object “to

the January 7, 2013 trial date or the fact that the delay would

be charged to the defense for Rule 48 purposes.” (emphasis

added).

13
   It is unclear why Hilario argued the non-excludable period began on
September 19, 2012, when trial had been previously set for September 17,
2012.
14
   December 20, 2012 was the date Hilario filed his Motion to Dismiss.
According to Hilario’s Motion, 115 non-excludable days elapsed from August
27, 2012 to December 20, 2012.

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       The ICA concluded that the trial court erred in determining

that Hansen-Loo was an alibi witness:

                  In Hawaii, an alibi defense is “an attempt by
            the defendant to demonstrate he did not commit the
            crime because, at the time, he was in another place
            so far away, or in a situation preventing his doing
            the thing charged against him.” State v. Cordeira,
            68 Haw. 207, 210, 707 P.2d 373, 376 (1985) (citation
            and internal quotation marks omitted). . . . See
            also Black’s Law Dictionary, [sic] 87 (10th ed. 2014)
            (“1. A defense based on the physical impossibility
            of a defendant’s guilt by placing the defendant in a
            location other than the scene of the crime at the
            relevant time. . . . 2. The quality, state, or
            condition of having been elsewhere when an offense
            was committed.”).

Hilario, mem. op. at 14.        “As Hansen-Loo was not an alibi

witness, the procedure set out in HRPP Rule 12.1 did not apply

and Hilario’s trial should not have been delayed on this basis.”

Id. at 15 (footnote omitted).

       The ICA also noted that “it was the State that first

characterized Hansen-Loo as an alibi witness, a characterization

that the defense never adopted and actively contested.              Absent

this characterization, there would be no reason for the defense

to file a notice of alibi.”        Id. at 15.     Accordingly, the ICA

determined the State’s argument that Hilario had consented to

continuing the trial to January 7, 2013 was not founded in the

record.    See id. at 16.

            Judge Ginoza dissented, reasoning that

            the Circuit Court correctly determined[] the delay in trial
            was a result of Hilario filing his Notice of Alibi, which
            was filed on August 22, 2012 (less than a month before the
            scheduled September 17, 2012 trial date). . . . Although
            Hilario’s counsel later argued that he did not believe

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            Hansen-Loo was an alibi witness and that he filed the
            Notice of Alibi “in an abundance of caution,” Hilario
            nevertheless chose to file the Notice of Alibi and never
            withdrew it.”

Id. at 19 (Ginoza, J., dissenting) (first emphasis in original;

second emphasis added).

                        III.    Standard of Review

       The appellate court reviews a trial court’s denial of a

HRPP Rule 48 motion to dismiss under both the “clearly

erroneous” and “right/wrong” tests:

            A trial court’s findings of fact (FOFs) in deciding an HRPP
            48(b) motion to dismiss are subject to the clearly
            erroneous standard of review. An FOF is clearly erroneous
            when, despite evidence to support the finding, the
            appellate court is left with the definite and firm
            conviction that a mistake has been committed. However,
            whether those facts fall within HRPP 48(b)’s exclusionary
            provisions is a question of law, the determination of which
            is freely reviewable pursuant to the “right/wrong” test.

State v. Samonte, 83 Hawaiʻi 507, 514, 928 P.2d 1, 8 (1996)

(quoting State v. Hutch, 75 Haw. 307, 328–29, 861 P.2d 11, 22

(1993)).

                               IV.   Discussion

       The circuit court and Judge Ginoza correctly observed that

the issue of whether Hilario’s case should be dismissed on Rule

48 grounds is distinct from the question of whether the trial

court erred in determining that Hansen-Loo’s testimony could

present an alibi defense.        The circumstances on August 24, 2012

at the time the circuit court continued the trial from September

17, 2012 to January 7, 2013 included: the trial court’s


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evidentiary determination that Hansen-Loo’s testimony supported

an alibi defense; Hilario’s filing of a Notice of Alibi just two

days prior; the State’s ongoing and known difficulties in

interviewing Hansen-Loo; and the State’s representation that it

would need time to investigate any new information that might be

contained in ensuing Rule 12.1 disclosures.            Under the

circumstances of this case, the trial court was not wrong in

determining that granting an additional investigatory period to

the State was a justifiable excludable period under Rule 48.

HRPP Rule 48(c)(8) allows for exclusion of “periods of delay for

good cause.”     This court has held that the “good cause”

provision of Rule 48(c)(8) is “provided to take care of

unanticipated circumstances,” “and that “good cause means a

substantial reason that affords legal excuse.”            State v.

Abregano, 136 Hawaiʻi 489, 497, 363 P.3d 838, 846 (2015)

(citations omitted).       Whether a period of time is excludable as

“good cause” under HRPP Rule 48(c)(8) is dependent on the facts

of each case.     See State v. Herrera, 63 Haw. 405, 409, 629 P.2d

626, 629 (1981) (“‘Exceptional circumstances,’ like ‘good

cause,’ is dependent on the facts of each case.”); Abregano, 136

Hawaiʻi at 498, 363 P.3d at 847 (citing id.).           The facts and

circumstances of this case, as outlined in Part II.A.2. above,

were unanticipated, and constituted substantial reason that

affords legal excuse.
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           Hilario repeatedly argues that the trial court erred when

it determined that Hansen-Loo’s testimony could support an alibi

defense.        According to Hilario, without such a determination,

Rule 12.1 disclosures need not have been made, and therefore

trial could have occurred on September 17, 2012.                 We need not

and do not determine whether Hansen-Loo’s testimony as reflected

in the defense investigator’s report actually presented an alibi

defense.15        Whether or not it was, the circuit court was not


15
  Although we do not decide whether Hansen-Loo’s testimony presented an alibi
defense, we note that at the time of the August 24, 2012 hearing on the
State’s Motion to Prevent, Hansen-Loo had already declined multiple times to
answer any of the State’s deposition questions regarding the shooting. Thus,
the only evidentiary basis for Hansen-Loo’s proffered testimony was contained
in the February 2012 defense investigator’s report.

                The report stated in relevant part:

                [O]n the morning of the shooting, [Hansen-Loo] was at his
                grandmother’s home in Anahola. When he awoke, . . .
                Hilario and David Manaku had returned from Kapaa and were
                making plans of going fishing. They all left in
                [Hilario’s] car and both [Hansen-Loo] and Manaku were
                dropped off on the back road between Anahola Beach and the
                Hawaiian Homes. They walked down the road a short distance
                then went over the metal guard rail and were standing in
                the bushes. A short while later [Hansen-Loo] heard [a]
                vehicle stop, a door slam[,] and a Caucasian male got out
                and the car drove off towards the beach. The male stood
                under a tree next to the road. [Hansen-Loo] added that
                Manaku took out a handgun from his waist band and walked
                towards the male from the back and the next thing he knew,
                Manaku shoots the guy a couple of times and the guy
                crouches down and Manaku shoots him again. . . .

(emphasis added). Although the crux of the statement is that Hansen-Loo
observed someone other than Hilario shoot Moore, the statement contains other
information regarding Hilario’s whereabouts at the time of the shooting.
Hansen-Loo stated that Hilario was “in a location other than the scene of the
crime at the relevant time.” Black’s Law Dictionary 87 (10th ed. 2014)
(defining “alibi”); see also id. at 1838 (defining an “alibi witness” as “[a]
witness who testifies that the defendant was in a location other than the
scene of the crime at the relevant time; a witness who supports the
defendant’s alibi”); Hilario, mem. op. at 14 (citing State v. Cordeira, 68
                                                             (continued . . .)
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wrong in excluding the relevant time period for good cause under

HRPP Rule 48(c)(8) for Rule 48 purposes.           We also note that the

time period of the continuance for these purposes was also

reasonable.

                               V.   Conclusion

       For the foregoing reasons, we vacate the ICA’s April 15,

2016 Judgment on Appeal entered pursuant to its March 18, 2016

Memorandum Opinion, and remand this matter to the ICA for

further proceedings consistent with this opinion.

       DATED:   Honolulu, Hawai‘i, August 12, 2016.

Justin Kollar and                   /s/ Mark E. Recktenwald
Tracy Murakami
for petitioner                      /s/ Paula A. Nakayama

Keith S. Shigetomi                  /s/ Sabrina S. McKenna
for respondent
                                    /s/ Richard W. Pollack

                                    /s/ Michael D. Wilson




(. . . continued)
Haw. 207, 210, 707 P.2d 373, 376 (1985)). Specifically, Hansen-Loo’s
statement that Hilario “dropped off” Hansen-Loo and Manaku on the “back road”
a short distance from where the shooting took place minutes before the
shooting could create a reasonable inference that Hilario had proceeded to a
fishing spot in the area. Such an inference could support an alibi defense,
but we do not decide this issue as it is not necessary to do so.


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