State v. Smith

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-MAY-2025
07:57 AM
Dkt. 120 MO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

CAAP-XX-XXXXXXX
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
CHANI SMITH, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
and
CAAP-XX-XXXXXXX
STATE OF HAWAI‘I, Plaintiff-Appellant,
v.
CHANI SMITH, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)

In CAAP-XX-XXXXXXX, Defendant-Appellant Chani Smith

(Smith) appeals from the August 29, 2022 "Findings of Fact

[(FOFs)], Conclusions of Law [(COLs)], and Order Granting

[Smith's] Motion to Dismiss for Violation of [Hawaiʻi Rules of
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Penal Procedure (HRPP)] Rule 48 Without Prejudice & Denying

[Smith's] Motion to Dismiss for Violation of Constitutional

Speedy Trial Right" (2022 Order), filed by the Circuit Court of

the Second Circuit (circuit court) in Case No. 2CPC-XX-XXXXXXX.

In CAAP-XX-XXXXXXX, which this court has consolidated

with CAAP-XX-XXXXXXX, Plaintiff-Appellant State of Hawaiʻi

(State) appeals from the February 16, 2023 "[FOFs], [COLs], and

Order Granting [Smith's] Motion for Order to Show Cause and

Dismissal with Prejudice" (2023 Order), filed by the circuit

court in Case No. 2CPC-XX-XXXXXXX.1

I. Background2

On July 30, 2017, the complaining witness (CW)

reported to the Maui Police Department (MPD) that she had been

sexually assaulted earlier that day. MPD initiated a police

investigation, the CW submitted to a sexual assault examination

by a medical professional, and a Hawaii Sexual Assault Evidence

Collection Kit was submitted as evidence in the case. The CW

gave a recorded statement to an MPD Officer (Officer), in the

Officer's patrol car at the Maui Memorial Hospital parking lot.

The Officer wrote an incident report and submitted his digital

recording as evidence in the case. Smith's defense counsel

1 The Honorable Peter T. Cahill presided in both underlying cases.

2 The background facts set forth herein are taken from the circuit
court's FOFs in the 2022 Order and 2023 Order, and are uncontested by the
parties.

2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

received a copy of this recorded interview in the ordinary

discovery process.

The CW was separately interviewed on July 30, 2017 by

an MPD Detective (Detective). The Detective's report

represented that the Detective's interview of the CW was also

conducted at the Maui Memorial Hospital parking lot. No

recording of the Detective's interview of the CW was submitted

into evidence, and there is no indication that the interview was

recorded.

On August 1, 2017, the Detective interviewed a witness

to the alleged sexual assault, Amy Schooping (Schooping). The

Detective prepared a written report with a detailed summary of

the interview. Schooping's interview was recorded; however, a

copy of the Schooping recording was not submitted into evidence

at the time. The recording was later recovered by MPD.

On August 4, 2017, the Detective conducted a telephone

interview with another witness, Jeffery Johnson (Johnson).

There is no indication that Johnson's interview was recorded,

and the Detective did not submit a recording of Johnson's

interview into evidence.

Smith was made aware of the investigation, retained

counsel, and submitted to a buccal swab on December 1, 2017.

Smith was not arrested at this time. Evidence, including

Smith's buccal swab, was submitted to the Sorenson Forensics Lab

3
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

for analysis, which submitted its results on January 30, 2018.

The test results found no DNA or other evidence.

The evidence was then submitted to the Honolulu Police

Department Scientific Investigative Section for additional

scientific examination. This testing was completed on April 17,

2019, and also found no DNA or other evidence.

In January 2019, during the pendency of the

investigation, Smith moved to California.

On November 2, 2020, the State filed its Indictment in

2CPC-XX-XXXXXXX (2020 Indictment). The 2020 Indictment charged

Smith with two counts of Sexual Assault in the Second Degree, in

violation of Hawaii Revised Statutes (HRS) § 707-731(1)(a), (b)

(2014).

On February 8, 2022, Smith was arrested by California

law enforcement on a Hawaiʻi arrest warrant. There is no record

that the State attempted to locate Smith prior to his February

2022 arrest. Smith posted bail in California and Hawaiʻi,

remained out on bond, and was permitted by the court to continue

residing in California.

On April 20, 2022, Smith was arraigned on the charges

in 2CPC-XX-XXXXXXX. Smith filed "[Smith's] Request for

Discovery and for Disclosure of All Exculpatory Evidence and

Incorporated Statement of Authority" the next day. The State

provided discovery materials to Smith in April and May of 2022,

4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

which included written summaries of the statements made by

Schooping and Johnson.

On June 9, 2022, Smith filed his "Motion to Dismiss

for Violation of [HRPP Rule 48] and for Violation of the Sixth

Amendment Right to a Speedy Trial" (Motion to Dismiss). The

circuit court heard Smith's Motion to Dismiss in June and August

2022. After the June 2022 hearing, the State hand-delivered to

defense counsel the recorded statement of the CW, which had been

submitted as evidence by the MPD Officer who took the statement,

and two other disks containing discovery material.

On August 29, 2022, the circuit court entered its 2022

Order, which granted Smith's Motion to Dismiss without prejudice

for violation of HRPP Rule 48, and denied Smith's Motion to

Dismiss for violation of the constitutional right to a speedy

trial. The circuit court gave the State a deadline of

September 9, 2022 to re-indict Smith.

Smith timely appealed the 2022 Order. Smith's appeal

of the 2022 Order was docketed as CAAP-XX-XXXXXXX. On appeal,

Smith alleges that the circuit court erred in not dismissing the

case with prejudice after finding a violation of HRPP Rule 48,

and in concluding that his constitutional right to a speedy

trial was not violated.

On September 9, 2022, the State filed a new Indictment

in 2CPC-XX-XXXXXXX (2022 Indictment). The 2022 Indictment re-

5
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

charged Smith with the same two counts of Sexual Assault in the

Second Degree.

On September 27, 2022, Smith filed a Motion to Compel

Discovery requesting, inter alia, that the recorded statements

of Schooping and Johnson be turned over to defense counsel. The

circuit court granted Smith's Motion to Compel Discovery in

part. As to the requested recordings, the circuit court adopted

the deputy prosecuting attorney's (DPA) representation that

there were no recorded statements of Schooping and Johnson that

were turned into evidence. The circuit court left open the

possibility of revisiting the issue if any recordings were

located. The circuit court ordered the State to provide the

investigative notes related to Schooping and Johnson's

statements to the defense by October 28, 2022, and, if no such

notes existed, that the State notify the defense of this. The

circuit court further ordered that, except for the discovery

issue, the proceedings in 2CPC-XX-XXXXXXX would be stayed

pending the outcome of Smith's appeal from the 2022 Order in

CAAP-XX-XXXXXXX.

On the October 28, 2022 discovery deadline, the State

communicated with the defense that the Detective who interviewed

Schooping and Johnson was on extended medical leave and not

responding to his supervisor's inquiries. The State

6
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

communicated that it could not provide any information as to

whether any interview notes still exist or ever existed.

On November 1, 2022, Smith filed a Motion for Order to

Show Cause as to why the State should not be held in contempt

for its noncompliance with the circuit court's order to turn

over notes of Schooping and Johnson's interviews. Smith asked

the circuit court to hold the State in contempt and impose the

sanction of dismissal of the case with prejudice.

On November 3, 2022, the State communicated to the

defense that on November 2, 2022, the Detective's supervisor had

spoken with the Detective, who was on medical leave, and that

the Detective had informed the supervisor that the Detective

does not retain notes after completing reports. The State

further communicated to the defense that the State was able to

locate an audio and visual recording of Schooping's August 1,

2017 statement with the assistance of a second MPD detective.

The recording was located on an MPD computer hard drive, and the

recording was provided to defense counsel on November 18, 2022.

In January 2023, the circuit court heard argument on

the Motion for Order to Show Cause, and whether dismissal with

prejudice was the proper sanction for the State's discovery

violation. At the hearing, the circuit court expressed concern

regarding the State's noncompliance with its discovery order:

This is a five-year-old case. It went through a
dismissal once. We're back again. I issued an order and

7
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

said, do this. And [defense counsel] is absolutely
correct. I don't blame the [DPA]. You can only turn over
what you got.

But this idea that they go through and –- I'm like
flabbergasted. I truly am. Five years and they know –-
it's a sex assault case. [Defense counsel] described it,
common vernacular is a –- it's a rape case, and they're
only finding things now? I've got to tell you, that's just
not acceptable. That's just –- that just is not
acceptable. That's hiding the ball. Whether it's
intentional or negligent, unintentional, just a mistake,
it's hiding the ball. And if –- there's got to be a
consequence to that.

And this idea is, well, I exclude the witness. But
he may be helpful to the defense. You're just assuming
that it's not going to –- now all of a sudden this other
critical witness, who's an eyewitness to something, is –-
comes out of the woodwork, but not really out of the
woodwork because the State always had the evidence in its
possession. That's evidence. You can call it whatever you
want, but that's evidence in this case. And they only find
it now?

. . . .

. . . It's five years this [CW] has been dragged
through this process, and now we're going at it again when
someone says, well, we have this –- now all of a sudden
this secret archive –- this is like the Vatican, for God's
sakes. The secret archive has been discovered, and now we
know that the police department has a secret archive where
things are somewhere -– stored sometimes.

Well, who had access –- I mean, look, . . . [the
second MPD detective] has testified more times in this
courtroom than anybody else that I can think of. And, you
know, I've got to tell you, he carries a lot of weight and
credibility around here. And he went to the extra effort,
but we've got the investigating officer who can't remember
things, doesn't take notes. Okay. Well, if that's the way
he wants to conduct his investigations, there's an impact
when he gets on the witness stand over the quality of the –
- of the investigation.

. . . .

. . . I . . . find that the [MPD] did not turn over
critical evidence that it had in its possession. Thanks to
the exceptional work of . . . [the second MPD detective],
with his 25 years of experience, he actually found
something.

But at some point, there needs to be a consequence to
the action because just not –- and it doesn't really make
any difference whether it's exculpatory or not. Defendant

8
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

needs to prepare. This is a very hotly contested case, and
now all of a sudden there's an eyewitness who shows up only
after the first matter is dismissed, after years went by
where there was no indictment brought forth. I –- there
just needs to be a consequence.

(Emphasis added.)

On February 16, 2023, the circuit court entered its

2023 Order dismissing the 2022 Indictment with prejudice. The

State appealed the 2023 Order, and this appeal was docketed as

CAAP-XX-XXXXXXX. The State raises a single point of error on

appeal, contending that the circuit court abused its discretion

by dismissing the charges against Smith with prejudice.

This court consolidated Smith's appeal in CAAP-22-

0000688 with the State's appeal in CAAP-XX-XXXXXXX. We address

the points of error raised in both appeals as follows.

II. Discussion

We review the circuit court's ruling on a motion to

dismiss an indictment for abuse of discretion. State v.

Thompson, 150 Hawaiʻi 262, 266, 500 P.3d 447, 451 (2021). "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." Id.

(citations omitted).

We review questions of constitutional law under the

right/wrong standard. State v. Visintin, 143 Hawaiʻi 143, 152,

426 P.3d 367, 376 (2018) (citations omitted).

9
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

A. 2CPC-XX-XXXXXXX

Smith contends that the circuit court erred in

dismissing the charges brought against Smith in 2CPC-XX-XXXXXXX

without prejudice. Smith raises two principle points of error

in this regard, contending that the circuit court erred in: (1)

its application of the three factors adopted in State v.

Estencion, 63 Haw. 264, 625 P.2d 1040 (1981), to determine

whether to dismiss a case with or without prejudice for

violation of HRPP Rule 48(b); and (2) "not dismissing the

charges against . . . Smith for the violation of his

constitutional rights" to a speedy trial guaranteed under the

United States Constitution and in article I, section 14 of the

Constitution of the State of Hawaiʻi. We address these points in

turn.

1. HRPP Rule 48

"The purpose of [HRPP] Rule 48 is to ensure an accused

a speedy trial, which is separate and distinct from his

constitutional protection to a speedy trial." Estencion,

63 Haw. at 268, 625 P.2d at 1043 (footnote omitted). In

Estencion, the Hawaiʻi Supreme Court adopted the following test

to guide a trial court's exercise of discretion in dismissing

charges with or without prejudice for a HRPP Rule 48 violation:

In determining whether to dismiss the case with or without
prejudice, the court shall consider, among others, each of
the following factors: the seriousness of the offense; the
facts and the circumstances of the case which led to the

10
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.

Id. at 269, 625 P.2d at 1044 (quoting Federal Speedy Trial Act,

18 U.S.C.A. § 3162(a)(1) (West 1969 & Supp. 1980)).

The circuit court, applying the Estencion factors to

this case, concluded:

8. The seriousness of the offense in the instant case
weighs heavily in favor of the State and a dismissal
without prejudice.

9. The circumstance that led to the dismissal here is
the [State's] failure to make any effort to locate [Smith],
irrespective of the fact that he was residing in
California, [this] weighs in favor of a dismissal with
prejudice.

10. The fact that this is a very serious charge and
once the matter was brought to the attention of this court,
all parties acted diligently in addressing the issue, and
the State agreed to promptly refile this matter, strongly
favors allowing re-prosecution in the administration of
justice.

(Emphasis added.)

As to the first Estencion factor, the circuit court's

assessment of Sexual Assault in the Second Degree as

constituting a "serious" offense did not exceed the bounds of

reason. As to the second factor, the circuit court acknowledged

that the State's "failure to make any effort to locate [Smith],

irrespective of the fact that he was residing in California" in

fact "weighs in favor of a dismissal with prejudice." (Emphasis

added.) And, with regard to the third factor, the circuit court

did not abuse its discretion in determining that the

"administration of justice" favored reprosecution because "this

11
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

is a very serious charge" and "all parties acted diligently in

addressing the issue."

We therefore conclude that the circuit court did not

abuse its discretion in applying the Estencion factors, and in

dismissing the charges brought against Smith in 2CPC-XX-XXXXXXX

without prejudice on that basis.

2. Constitutional Right to a Speedy Trial

Both the Sixth Amendment to the United States

Constitution and article I, section 14 of the Hawaiʻi

Constitution guarantee a defendant in a criminal case the right

to a speedy trial in all prosecutions. State v. Lau, 78 Hawaiʻi

54, 62, 890 P.2d 291, 299 (1995). Courts consider the four

factors articulated in Barker v. Wingo, 407 U.S. 514 (1972) in

determining whether a defendant's constitutionally protected

right to a speedy trial has been violated. Those four factors

are: "(1) length of the delay; (2) reasons for the delay; (3)

defendant's assertion of his right to speedy trial; and (4)

prejudice to the defendant." Lau, 78 Hawaiʻi at 62, 890 P.2d at

299 (citing Barker, 407 U.S. at 530).

None of the four Barker factors "is to be regarded as

either a necessary or sufficient condition to the finding of a

deprivation of the right to a speedy trial." Id. (cleaned up).

The factors are related "and must be considered together with

such circumstances as may be relevant." Id. (cleaned up).

12
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

"When a defendant's right to a speedy trial has been violated,

the only remedy is dismissal with prejudice." Visintin,

143 Hawaiʻi at 157, 426 P.3d at 381 (citation omitted).

In applying the Barker factors, the circuit court

concluded:

14. The length of the delay favors [Smith's]
assertion of a Speedy Trial violation.

15. Although [Smith] was residing out of state, the
overall responsibility for the delay in this case was the
State's failure to look for [Smith]. This factor favors
[Smith].

16. [Smith] did not assert his right [to] a Speedy
Trial until this Motion [to Dismiss] was filed. This
factor favors the State.

17. The most decisive factor when evaluating a
possible violation of Speedy Trial is the prejudice to the
Defendant. When evaluating prejudice, there are three
factors to consider: to prevent oppressive pre-trial
incarceration; to minimize anxiety and concern of the
accused; and to limit the possibility that the defense will
be impaired. State v. Almeida, 54 Haw. 443, 448, 509 P.2d
549, 552 (1973); citing, Barker . . . . This factor
favor[]s the State.

18. [Smith] has not suffered any oppressive pre-trial
incarceration. Arguably there was anxiety of the accused,
however, that exists in any criminal case, therefore this
case does not stand out. There is nothing to support that
the defense has been impaired at this juncture.

(Emphasis added.)

Here, the circuit court's conclusions that the first

two Barker factors weigh in Smith's favor are unchallenged. At

issue, therefore, is whether the circuit court erred in

concluding that the third and fourth factors weigh in favor of

the State and, if so, whether the circuit court was wrong in

concluding that Smith's constitutional rights were not violated.

13
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

We review these questions de novo. See Visintin, 143 Hawaiʻi at

152, 426 P.3d at 376 (citations omitted).

The circuit court concluded that the third Barker

factor weighed in favor of the State because Smith "did not

assert his right [to] a Speedy Trial until this Motion [to

Dismiss] was filed." This cursory conclusion implies that Smith

failed to timely "assert his right" to a speedy trial because he

did not move to dismiss his charges until June 2022. This does

not accurately reflect the record.

The record reflects that the alleged offense occurred

on July 30, 2017, the 2020 Indictment charging Smith was filed

on November 2, 2020, and Smith was arrested in California on

February 8, 2022. The record thus reflects a period of

approximately 15 months between the filing of the 2020

Indictment and Smith's arrest. During this time, it appears

that the State did not make efforts to locate and arrest Smith.

It further appears that Smith was unaware of the 2020 Indictment

and the arrest warrant until he was arrested in February 2022.

The record reflects, moreover, that Smith moved to

dismiss the Indictment on June 9, 2022, a mere 50 days – less

than 2 months – after his arraignment on April 20, 2022. See

Visintin, 143 Hawaiʻi at 161, 426 P.3d at 385 (finding that

defendant "raised the issue of speedy trial as soon as was

practicable under the circumstances" where defendant filed a

14
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

motion to dismiss on speedy trial grounds within two weeks of

his arraignment). On this basis, we determine that the circuit

court erred in concluding that Smith did not "assert his right

to a Speedy Trial."

With regard to the fourth Barker factor, we determine

that the circuit court did not err in concluding, on the record

before it, that "[t]here is nothing to support that the defense

has been impaired at this juncture." The circuit court did err,

however, in concluding that "[t]he most decisive factor when

evaluating a possible violation of Speedy Trial is the prejudice

to the Defendant." Even if the fourth Barker factor weighed in

favor of the State, that factor should have been properly

balanced with the first three factors that weigh in Smith's

favor.

For the foregoing reasons, we vacate the circuit

court's Order in Case No. 2CPC-XX-XXXXXXX. We instruct the

circuit court, on remand, to make such FOFs and COLs as

necessary to demonstrate its full consideration, and proper

balancing, of all four Barker factors.

B. 2CPC-XX-XXXXXXX

The State contends that the circuit court erred in

dismissing the charges brought against Smith in 2CPC-XX-XXXXXXX

with prejudice.

15
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

The following FOFs and COLs set forth the circuit

court's basis for dismissing the 2022 Indictment with prejudice:

[FOF] 36. Following the hearing on January 10, 2023,
this Court found that although not faulting the [DPA]
personally as the Defense had argued, the [MPD's] and by
extension the [DPA's] possession of the recording for five
years before turning it over was not acceptable.
[FOF] 37. With regard to the belatedly provided
recording of [the] Amy Schooping interview, this Court
stat[ed]: "whether intentional, negligent, unintentional or
just a mistake it's hiding the ball." It doesn't matter
whether the evidence is inculpatory of exculpatory. The
delay in providing limited the Defense's ability to
prepare. The Court added: "I . . . find that the [MPD] did
not turn over critical evidence that it had in its
possession. . . . [T]here needs to be a consequence to that
action."
[FOF] 38. The Court finds that the appropriate
remedy for this is a Dismissal with Prejudice because: 1)
The State (MPD) had the evidence for over 5 years, knew the
importance of this case, and simply failed to turn over
evidence that it knew it had without reason or explanation;
2) the Court cannot say that the withholding of this
evidence by the police has not prejudiced the [defendant]
in both cases regardless of its contents.

. . . .

[COL] 9. [Smith] in this case is entitled to the
whole truth-not some surgically constructed or manufactured
"truth" that suits only the government's erroneous theory
of the case. Brady [v. Maryland, 373 U.S. 83,] 87-88
[(1963)]. Complete and unadulterated disclosures are
required to the fullest extent of the mandates of Rule 16,
Brady, and its progeny. See[] e.g.[,] United States v.
Agurs, 427 U.S. 97, 106 . . . (1976) ("When the prosecutor
receives a specific and relevant request, failure to make
any response is seldom, if ever, excusable.").

. . . .

[COL] 11. The Court has broad discretion to
alleviate discovery violations (HRPP Rule 16(e)(9)(i);
State v. David, 134 Hawaiʻi 289, 297, 339 P.3d[] 1090, 1098
(2014)) and the Court deems the appropriate remedy is a
dismissal with prejudice.

[COL] 12. The Court has considered alternative
remedies but concludes as a matter of law that failure to
provide a simple statement to the defense regardless of its
content for 5 years must bear a significant consequence.
The claim of MPD of a recent "discovery" of this material

16
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

the Court finds incredulous. The defense should be
afforded even innocuous material so a defendant can
consider all viable options and must not be left to making
important decisions based on the whim of an investigating
officer.

(Cleaned up.)

On appeal, the State contends that FOF 38 was clearly

erroneous and COL 12 was wrong because the circuit court erred:

(1) in finding "that the State failed to provide the [Schooping]

recording to Smith for five years"; (2) finding "that Smith

suffered prejudice from the delay"; and (3) failing to consider

"other less-restrictive remedies than dismissal with prejudice,"

such as suppression of Schooping's testimony, dismissal without

prejudice, and referral of the DPA for disciplinary action.

A discovery violation can . . . constitute a so-called
Brady violation, which infringes upon the defendant's due
process right to a fair trial. The suppression by the
[DPA] of evidence favorable to the accused violates due
process where the evidence is material to guilt or
punishment, regardless of the good faith or bad faith of
the [DPA]. However, in order to establish a Brady
violation, an appellant must make a showing that the
suppressed evidence would create a reasonable doubt about
the appellant's guilt that would not otherwise exist.

State v. Fukusaku, 85 Hawaiʻi 462, 479, 946 P.2d 32, 49 (1997)

(cleaned up).

HRPP Rule 16, which governs discovery in criminal

cases, directs in relevant part that,

Upon written request of defense counsel and specific
designation by defense counsel of material or information
which would be discoverable if in the possession or control
of the prosecutor and which is in the possession or control
of other governmental personnel, the prosecutor shall use
diligent good faith efforts to cause such material or
information to be made available to defense counsel; and if
the prosecutor's efforts are unsuccessful the court shall

17
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

issue suitable subpoenas or orders to cause such material
or information to be made available to defense counsel.

HRPP Rule 16(b)(2) (emphasis added).

The record reflects that the Schooping recording is

not part of the record, and there is no indication that the

circuit court reviewed the recording prior to dismissing the

2022 Indictment. It is unclear how the circuit court could have

determined, without reviewing the recording, that the recording

was material to Smith's defense, such that the State's delay in

turning over the Schooping recording prejudiced the defense.

Moreover, the circuit court found that, although it

was not "faulting the [DPA] personally," "the [MPD's] and by

extension the [DPA's] possession of the recording for five years

before turning it over was not acceptable." On September 27,

2022, the defense filed a Motion to Compel Discovery requesting

that the circuit court compel disclosure of the recorded

interview with Schooping. The State located and turned over the

recording to the defense on November 18, 2022. It appears that

the recording was in MPD's possession, the Detective who made

the recording was unavailable due to medical reasons, and a

second MPD detective was able to locate a copy of the recording.

We determine that the circuit court erred in failing to examine

whether, under these circumstances, the DPA in fact used

"diligent good faith efforts" to locate and make the recording

available to Smith.

18
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

We therefore vacate the circuit court's 2023 Order,

and instruct the circuit court on remand to make appropriate

FOFs and COLs as to whether, under these circumstances, the

State violated Brady and/or HRPP Rule 16 by not turning the

Schooping recording over to the defense prior to November 18,

2022.

We further instruct the circuit court, should it

exercise its authority to impose HRPP Rule 16 sanctions,3 to make

FOFs and COLs that clearly articulate its consideration of

whether a less severe sanction than dismissal "would rectify

prejudice" to Smith. In imposing HRPP Rule 16 sanctions,

The trial court should take into account the reasons
why the disclosure was not made, the extent of prejudice,
if any, the feasibility of rectifying that prejudice by a
continuance, and any other relevant circumstances. . . .
Before the court orders dismissal of a case because of the
State's violation of HRPP Rule 16, it must consider whether
less severe measures would rectify prejudice caused to the
defendant by the violation.

State v. Dowsett, 10 Haw. App. 491, 495, 878 P.2d 739, 742 (App.

1994) (cleaned up).

Finally, if the circuit court determines that

dismissal is warranted, it should make sufficient FOFs and COLs

3 It appears that the circuit court, while determining that the
State violated both Brady and HRPP Rule 16, imposed sanctions pursuant to
HRPP Rule 16. HRPP Rule 16(e)(9)(i) provides:

If at any time during the course of the proceedings
it is brought to the attention of the court that a party
has failed to comply with this rule or an order issued
pursuant thereto, the court may order such party to permit
the discovery, grant a continuance, or it may enter such
other order as it deems just under the circumstances.

19
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

to clearly articulate its basis for dismissing the case with or

without prejudice.

III. Conclusion

For the foregoing reasons, we vacate the circuit

court's 2022 Order in 2CPC-XX-XXXXXXX, and remand for further

proceedings to determine, consistent with this memorandum

opinion, whether Smith's constitutional right to a speedy trial

was violated. We further vacate the circuit court's 2023 Order

in 2CPC-XX-XXXXXXX, and remand for further proceedings

consistent with this memorandum opinion. We note that a circuit

court finding of a speedy trial violation in 2CPC-XX-XXXXXXX

would render further proceedings in 2CPC-XX-XXXXXXX unnecessary

on mootness grounds.

DATED: Honolulu, Hawaiʻi, May 29, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Gary A. Modafferi,
for CHANI SMITH. /s/ Sonja M.P. McCullen
Associate Judge
Gerald K. Enriques,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for STATE OF HAWAI‘I.

20