State v. Michels

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAR-2023
08:00 AM
Dkt. 68 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
KRISTINE MICHELS, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(NORTH & SOUTH KONA DIVISION)
(CASE NO. 3DTA-18-00638)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)

Defendant-Appellant Kristine L.T. Michels (Michels)

appeals from the July 17, 2018 Judgment and Notice of Entry of

Judgment (Judgment) entered by the District Court of the Third

Circuit (District Court).1 Michels pled nolo contendere to

Operating a Vehicle Under the Influence of an Intoxicant (OVUII),

in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)2

1
The Honorable Margaret K. Masunaga presided.
2
HRS § 291E-61 states, in pertinent part:

§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (a) A person commits the offense of
(continued...)
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(2020). The District Court found her guilty and, inter alia,

revoked her driver's license for one year.

Michels raises five points of error on appeal,

contending that the District Court abused its discretion and

committed reversible error when it: (1) denied her March 27,

2018 Motion to Dismiss for Lack of Affidavit and the June 12,

2018 Motion to Reconsider Denial of Motion to Dismiss; (2)

granted Plaintiff-Appellee State of Hawaii's (State's) first

Motion to Quash at a hearing on April 25, 2018, without notice to

Michels or her counsel; (3) twice quashed subpoenas served on the

State; (4) denied her second Motion to Dismiss the Complaint with

Prejudice, for procedural due process violations; and (5) did not

strike memoranda and proposed orders that were untimely filed by

the State.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, as well as the

relevant legal authorities, we address Michels's points of error

as follows:

(1) Michels argues that the Complaint was defective

and should have been dismissed because it was not supported by

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(...continued)
operating a vehicle under the influence of an intoxicant if
the person operates or assumes actual physical control of a
vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
mental faculties or ability to care for the
person and guard against casualty.

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the sworn statement of a witness with direct observations of

Michels's misconduct and that the supporting declaration was

insufficient as a matter of law. Whether the Complaint complied

with any applicable statute and/or rule is a question of law we

review de novo. State v. Thompson, 150 Hawai#i 262, 266, 500

P.3d 447, 451 (2021).

The Hawai#i Supreme Court recently held, in State v.

Mortensen-Young, –-P.3d--, 2023 WL 2519396, *15 (2023), that HRS

§ 805-1 (2014) applies only to criminal complaints used to obtain

a penal summons or arrest warrant.3 In other cases, such as the

OVUII prosecutions at issue in Mortensen-Young, Hawai#i Rules of

Penal Procedure (HRPP) Rule 7 provides the proper framework to

analyze the sufficiency of complaints.4 Id. at *14-15. In

3
HRS § 805-1 states, in pertinent part:

§ 805-1 Complaint; form of warrant. When a complaint
is made to any prosecuting officer of the commission of any
offense, the prosecuting officer shall examine the
complainant, shall reduce the substance of the complaint to
writing, and shall cause the complaint to be subscribed by
the complainant under oath, which the prosecuting officer is
hereby authorized to administer, or the complaint shall be
made by declaration in accordance with the rules of court.
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HRPP Rule 7 states, in pertinent part:

Rule 7. INDICTMENT, INFORMATION, OR COMPLAINT

. . . .

(d) Nature and contents. The charge shall be a plain,
concise and definite statement of the essential facts
constituting the offense charged . . . . A complaint shall
be signed by the prosecutor. The charge need not contain a
formal conclusion or any other matter not necessary to such
statement . . . . The charge shall state for each count the
official or customary citation of the statute, rule,
regulation or other provision of law which the defendant is
alleged therein to have violated.

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Mortensen-Young, the supreme court held that the trial court

improperly dismissed the complaints against the appellees,

reasoning that the charging instruments had complied with HRPP

Rule 7(d), and were thus sufficient to initiate prosecutions for

OVUII. Id.

Here, as in Mortensen-Young, HRS § 805-1 is

inapplicable because the Complaint was not used to obtain a penal

summons or arrest warrant. The Complaint set forth a plain and

concise statement of the essential facts, was signed by the

prosecutor, and referenced the statute that Michels allegedly

violated, as required by HRPP Rule 7(d). Therefore, the

Complaint was sufficient to initiate the subject prosecution.

See Mortensen-Young, 2023 WL 2519396, at *15.

We conclude that the Complaint was not defective and

the District Court did not abuse its discretion in denying

Defendant's first Motion to Dismiss on that basis.

(2) Michels argues that the District Court abused its

discretion by granting the State's first Motion to Quash.

Michels submits that she was denied procedural due process when

the District Court granted the motion without Michels or her

counsel having notice or an opportunity to be heard. As the

supreme court has stated:
Article I, section 5 of the Hawai#i Constitution
provides in relevant part that "[n]o person shall be
deprived of life, liberty or property without due process of
law[.]" Procedural due process claims are addressed in two
steps: "First, we must determine whether a 'liberty' or
'property' interest has been interfered with by the State;

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second, we must determine what specific procedures are
required to satisfy due process."

De La Garza v. State, 129 Hawai#i 429, 438-39, 302 P.3d 697, 706-

07 (2013) (quoting State v. Bani, 97 Hawai#i 285, 293, 36 P.3d

1255, 1263 (2001)). The State concedes that the District Court

improperly granted the first Motion to Quash a subpoena issued by

Michels, but argues that under the circumstances of this case,

the error was harmless.

Michels issued a subpoena to the deputy prosecutor who

signed the Complaint, which was quashed without proper notice to

Michels of the first Motion to Quash. Michels issued a second

subpoena to the deputy prosecutor, which was also quashed, but

only after Michels was provided proper notice and an opportunity

to be heard on the second Motion to Quash, as well as a related,

second Motion to Dismiss the Complaint.

We conclude that the District Court erred in granting

the first Motion to Quash, but that the court's error was

harmless. The first and second subpoenas were identical and the

issue of whether the State was required to produce the deputy

prosecutor for testimony was fully litigated before the District

Court less than a month after the District Court improperly

granted the State's first Motion to Quash. Michels was given an

opportunity to be heard at a meaningful time and in a meaningful

manner on the issue, and there is no reasonable possibility that

the District Court's error may have contributed to Michels's

conviction.

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(3) Michels argues that the District Court erred in

granting the second Motion to Quash, contending that the deputy

prosecutor's testimony was needed to resolve a factual issue for

the Motion to Dismiss, i.e., whether the officer or the deputy

prosecutor were percipient witnesses and "to establish facts

determinative of the issues, to wit: A declaration in support of

a complaint must clearly state how, when and by whom the

information stated therein was gleaned. Neither the complaint

nor the declaration in this case do that." Michels states that

she is not challenging the sufficiency of the charging instrument

per se; rather she is challenging the form of the declaration

allegedly supporting the Complaint.

As discussed above, the Complaint complied with HRPP

Rule 7(d), which does not require any declaration in support of a

complaint. Rather, HRPP Rule 7 requires that a complaint be

signed by the prosecutor, which it was in this case. We conclude

that Michels's third point of error is without merit.

(4) Michels argues that the District Court abused its

discretion in denying Michels's second Motion to Dismiss, and the

State violated Michels's procedural due process rights by

declining to negotiate with Michels regarding Michels's proposed

stipulation of fact.

As to her due process rights, Michels contends that

dismissal should have been granted because she suffered the

following prejudice: (1) the inability to object to the State's

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first Motion to Quash; (2) unwarranted delay of more than one

month, which increased her emotional worry; and (3) additional

legal fees "created by the fight put up by the [State] trying to

keep its deputy off the stand, unreasonably refusing to negotiate

to a stipulated facts hearing."

As discussed above, although the District Court erred

in ruling on the first Motion to Quash, under the circumstances

of this case, the error was harmless.

The referenced delay appears to have stemmed from a

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. Williander, 142 Hawai#i 155, 162, 415 P.3d

897, 904 (2018) (quoting State v. Lee, 9 Haw. App. 600, 603, 856,

P.2d 1279, 1281 (1993)). In order for the grant or denial of a

continuance to amount to a procedural due process violation, the

moving party must establish the deprivation of life, liberty, or

property without due process of law. See, e.g., Rapp v. Schmidt,

No. 27883, 2008 WL 4001189, at *2 (Haw. App. Aug. 29, 2008) (SDO)

(holding that the movants failed to show how denying their

continuance request deprived them of any protected property

interest or due process rights). Michels provides no factual or

legal support showing how a continuance deprived her of a

protected property interest or her due process rights, submitting

only that "[t]o have allowed a continuance is like laughing at

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the Defendant and belittling the protections she has under the

law." We glean no such inappropriate conduct from the record on

appeal and we conclude that this argument does not warrant the

requested relief.

Similarly, Michels provides no factual or legal support

for the proposition that incurring legal fees in response to the

State's efforts to preclude the deputy prosecutor's testimony was

tantamount to a due process violation. We conclude that this

argument is without merit.

Michels makes no discernible argument in support of her

assertion that the State's failure to negotiate a stipulation of

facts constituted a due process violation.

Accordingly, we reject Michels's argument that the

District Court erred in denying her second Motion to Dismiss.

(5) In her final point of error, Michels argues that

the District Court abused its discretion by declining to strike

late filings by the State.

Trial courts are granted broad discretion to decide

whether to accept late filings and grant appropriate relief.

HRPP Rule 45(c) sets deadlines for parties to serve, inter alia,

motions, opposing memoranda, and replies, but provides the court

discretion to alter the deadlines. See also HRPP Rule 49(d).

Here, the District Court exercised its discretion to

accept certain late filings by the State. Michels did not

identify any prejudice stemming from the District Court's

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decision at trial, and on appeal makes only conclusory statements

about prejudice being "apparent." On the record before us, we

cannot conclude that the District Court abused its discretion by

accepting the State's late filings.

For these reasons, the District Court's July 17, 2018

Judgment is affirmed.

DATED: Honolulu, Hawai#i, March 24, 2023.

On the briefs:
/s/ Lisa M. Ginoza
Frank L. Miller, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Timothy J. Rodes, Associate Judge
Deputy Prosecuting Attorney,
County of Hawai#i, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge

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