State v. McKeown

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-JUL-2025
01:27 PM
Dkt. 70 MO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
KYLE McKEOWN, Defendant-Appellant

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

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Kyle O. McKeown (McKeown) appeals

from the December 29, 2021 Findings of Fact, Conclusions of Law,

and Order Granting Defendant McKeown's Motion to Dismiss Pursuant

to Hawaii Rules of Penal Procedure Rule 48 [(Rule 48 Motion to

Dismiss)] and Denying Defendant McKeown's Motion to Dismiss for

Speedy Trial Violation [(Speedy Trial Motion to Dismiss)]

(FOFs/COLs/Order), entered by the Family Court of the Second

Circuit (Family Court).1

I. BACKGROUND

A. Initial Proceedings

On May 30, 2012, McKeown was arrested, and on June 1,

2012, the State of Hawai i (State) charged McKeown via complaint

1
The Honorable Richard T. Bissen presided.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

in 2FC121000240 with the offense of Murder in the Second Degree. 2

Case number 2FC121000240 was dismissed on July 2, 2012.

On June 29, 2012, the State charged McKeown via

indictment in 2FC121000280 with the offense of Murder in the

Second Degree of his four-year-old son (Son) in violation of

Hawaii Revised Statutes (HRS) §§ 707-701.5 (2014), 663-1.6

(2016), and 702-203 (2014). The indictment provided:
That during or about the period of May 21, 2012
through May 29, 2012, inclusive, in the County of Maui,
State of Hawaii, KYLE O. MCKEOWN, as a principal and/or
accomplice, being the parent, guardian, or any other person
having legal or physical custody of a four year old male
minor, did intentionally or knowingly cause the death of a
four year old male minor, a person less than 18 years of
age, by intentionally or knowingly inflicting injury on him,
and/or by intentionally or knowingly failing to seek and
obtain timely medical attention for a four year old male
minor, a duty imposed by law, intending or knowing that the
failure to seek and obtain timely medical attention would
result in the death of a four year old male minor[.]

A total of 30 days elapsed between May 30, 2012, and

June 29, 2012, which are not excluded for Rule 48 purposes. 3

2
For purposes of analyzing whether McKeown was entitled to relief
pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 48 (Rule 48), the
calculation of time begins on May 30, 2012.
3
HRPP Rule 48(c) provides in relevant part:

Rule 48. Dismissal.

. . . .

(c) Excluded Periods. The following periods shall be
excluded in computing the time for trial commencement:

(1) periods that delay the commencement of trial and
are caused by collateral or other proceedings concerning the
defendant, including but not limited to penal
irresponsibility examinations and periods during which the
defendant is incompetent to stand trial, pretrial motions,
interlocutory appeals and trials of other charges;

(2) periods that delay the commencement of trial and
are caused by congestion of the trial docket when the
congestion is attributable to exceptional circumstances;

(3) periods that delay the commencement of trial and
are caused by a continuance granted at the request or with
the consent of the defendant or defendant's counsel;

(continued...)

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

McKeown's trial was set for September 17, 2012. A

total of 80 days elapsed from June 29, 2012, to September 17,

2012, which are not excluded for Rule 48 purposes.

McKeown's trial in case number 2FC121000280 was

continued a number of times for various reasons as follows.

On August 16, 2012, trial was continued from

September 17, 2012, to October 15, 2012, on McKeown's request

because the parties were still working on discovery. McKeown

waived his Rule 48 rights for this period. A total of 28 days

elapsed between September 17, 2012, and October 15, 2012, which

are excluded for Rule 48 purposes.

3
(...continued)
(4) 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;

(5) periods that delay the commencement of trial and
are caused by the absence or unavailability of the
defendant;

(6) the period between a dismissal of the charge by
the prosecutor to the time of arrest or filing of a new
charge, whichever is sooner, for the same offense or an
offense required to be joined with that offense;

(7) a reasonable period of delay when the defendant
is joined for trial with a codefendant as to whom the time
for trial has not run and there is good cause for not
granting a severance; and

(8) other periods of delay for good cause.

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

On September 27, 2012, trial was continued to

January 14, 2013, on McKeown's request, because the autopsy

report had just been given to McKeown, which triggered "a lot of

other work." McKeown waived his Rule 48 rights for this period.

On January 3, 2013, trial was continued to March 11,

2013, to allow time for the Family Court to turn over medical

records to the State and for the State to prepare a protective

order. McKeown waived his Rule 48 rights for this period.

On February 28, 2013, trial was continued to May 20,

2013, and McKeown waived his Rule 48 rights for this period.

On April 18, 2013, trial was continued to August 5,

2013, on both parties' request, and McKeown waived his Rule 48

rights for this period. A total of 294 days elapsed between

October 15, 2012, and August 5, 2013, which are excluded for

Rule 48 purposes.

On July 11, 2013, trial was continued to September 5,

2013, and McKeown waived his Rule 48 rights for this period.

On September 5, 2013, trial was continued to October 4,

2013, on McKeown's request, and McKeown waived his Rule 48 rights

for this time period. A total of 60 days elapsed between

August 5, 2013, and October 4, 2013, which are excluded for

Rule 48 purposes.

On October 4, 2013, trial was continued to November 8,

2013, on McKeown's request because McKeown was still waiting for

records to turn over to his expert. McKeown waived his Rule 48

rights for this period. A total of 35 days elapsed between

October 4, 2013, and November 8, 2013, which are excluded for

Rule 48 purposes.

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

On November 8, 2013, trial was continued to

November 21, 2013, because records were still not completed. A

total of 13 days elapsed between November 8, 2013, and

November 21, 2013, and the Family Court found that it was unclear

whether this time period was excluded or included under Rule 48.

However, the Family Court appears to have included this period in

its Rule 48 computation.

On November 21, 2013, trial was continued to

January 15, 2014, and McKeown waived his Rule 48 rights for this

time period.

On January 15, 2014, trial was continued to

February 19, 2014, on McKeown's request because McKeown was

waiting for the return of a subpoena duces tecum for records of

about 400 pages. McKeown waived his Rule 48 rights for this

period.

On February 19, 2014, trial was continued to March 14,

2014, on McKeown's request because McKeown was waiting for the

return on the subpoena. McKeown waived his Rule 48 rights for

this period.

On April 17, 2014, trial was continued to May 22, 2014,

because the parties stipulated to a qualified protective order

regarding health/medical information requiring signatures from

the State and the Family Court before the records could be

provided. McKeown waived his Rule 48 rights for this period.

On May 22, 2014, trial was continued to July 2, 2014,

because counsel needed time to review the subpoena records and

provide expert witnesses with the information for review.

McKeown waived his Rule 48 rights for this period. A total of

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

223 days elapsed between November 21, 2013, and July 2, 2014,

which are excluded for Rule 48 purposes.

On July 2, 2014, proceedings were continued to July 16,

2014, to hold a hearing on McKeown's Motion to Set Trial wherein

McKeown requested a trial date in February 2015 due to expert

availability. A total of 14 days elapsed between July 2, 2014,

and July 16, 2014, which are excluded for Rule 48 purposes.

On July 16, 2014, the Family Court granted McKeown's

Motion to Set Trial, and trial was continued to February 2, 2015.

McKeown waived his Rule 48 rights for this period. A total of

201 days elapsed between July 16, 2014, and February 2, 2015,

which are excluded for Rule 48 purposes.

On December 10, 2014, McKeown moved for withdrawal and

substitution of counsel because the attorney was closing his law

practice. The Family Court granted the motion, and McKeown's

second attorney indicated at the hearing that he would likely not

be prepared for trial at the February 2015 trial date.

On January 21, 2015, trial was continued to March 30,

2015, on McKeown's request because McKeown's second attorney had

not yet gone over discovery. McKeown waived his Rule 48 rights

for this period. A total of 56 days elapsed between February 2,

2015, and March 30, 2015, which are excluded for Rule 48

purposes.

On February 25, 2015, McKeown moved for withdrawal and

substitution of counsel because McKeown's second attorney was

unable to continue representing McKeown due to their overwhelming

workload. The Family Court granted the motion, and although the

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

April 2015 trial date was maintained, trial would not go on that

date.

On March 13, 2015, trial was continued to August 17,

2015, on McKeown's request because there was supposed to be a

stipulation to send the pathology slides to an expert. McKeown's

Rule 48 waiver form reflected the period between April 6, 2015

and August 17, 2015, but not between March 30, 2015, and April 6,

2015. A total of 140 days elapsed between March 30, 2015 and

August 17, 2015, which are excluded for Rule 48 purposes. 4

On June 22, 2015, trial was continued to September 21,

2015, to allow time for McKeown to prepare a stipulation for

disclosure of pathology slides. McKeown waived his Rule 48

rights for this period. A total of 35 days elapsed between

August 17, 2015, and September 21, 2015, which are excluded for

Rule 48 purposes.

On September 15, 2015, trial was continued to June 22,

2016, on McKeown's request due to expert availability. McKeown

waived his Rule 48 rights for this period. A total of 266 days

elapsed between September 21, 2015, and June 13, 2016, which are

excluded for Rule 48 purposes.

On June 6, 2016, trial was continued to October 17,

2016. McKeown waived his Rule 48 rights from August 1, 2016, to

October 17, 2016, and June 13, 2016, to July 31, 2016 would be

charged to the State. A total of 49 days elapsed between

June 13, 2016, and July 31, 2016, which are not excluded for

Rule 48 purposes. A total of 77 days was found to have elapsed

4
Although trial was continued to August 17, 2015, the Family Court
calculated the time period based on August 24, 2015. However, McKeown also
waived his Rule 48 rights between August 17, 2015, and August 24, 2015.

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

between July 31, 2016, and October 17, 2016, which are excluded

for Rule 48 purposes.

On October 7, 2016, the State filed a Motion to

Continue Trial Date (State Motion to Continue), requesting a

continuance because the prosecutor assigned to this case was in

trial for another case that would continue through November 2016.

At the hearing on the State Motion to Continue, McKeown objected

to the Motion to Continue and did not waive his Rule 48 rights.

The Family Court continued trial to February 6, 2017, over

McKeown's objection, noting that most continuances to date had

been waived by McKeown. The Family Court found a total of 112

days between October 7, 2016, and February 6, 2017, are included

for Rule 48 purposes.

On December 2, 2016, trial was continued to

September 25, 2017, on McKeown's motion due to expert

availability. McKeown waived his Rule 48 rights for this period.

A total of 231 days elapsed between February 6, 2017, and

September 25, 2017, which are excluded for Rule 48 purposes.

On August 8, 2017, McKeown again moved for and the

Family Court granted withdrawal and substitution of counsel. The

September 25, 2017 trial date was vacated and continued to

May 14, 2018, due to McKeown's expert availability. McKeown

waived his Rule 48 rights for this period.

On April 5, 2018, McKeown filed a Motion to Dismiss

Indictment, arguing, inter alia, that the indictment should be

dismissed with prejudice because the competent evidence presented

to the grand jury failed to establish probable cause to believe

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

Son died as a result of a delay in medical treatment and/or that

McKeown caused the death of a human.

The State submitted a Motion to Dismiss Without

Prejudice (State Motion to Dismiss) case number 2FC121000280,

dated April 16, 2018, with an "Approved and So Ordered" signature

block for the court. The State Motion to Dismiss was filed the

next day, April 17, 2018, with the order signed by the Family

Court. The State later asserted, in response to the Rule 48

Motion to Dismiss the subsequently filed charge, that the reason

for the reindictment was that the State became aware of a "major

error" pertaining to one of its expert witnesses:
With respect to the State's reindictment of this case,
the State became aware of a major error pertaining to one of
its expert witnesses during the beginning of 2017. At the
time, the State did not have any reason to question the
accuracy of the subject expert's findings until the State
had an opportunity to speak with a different expert who
happened to be testifying in an unrelated matter during the
latter part of November, 2016, in the above-reference [sic]
Capobianco case. Based on the new information and evidence
provided to the State, the State felt compelled to correct
the record and seek a reindictment in this matter.

The State further represented:
[A]t no time is the State saying that the defendant is
not responsible for the murder of his son. Um, that's clear
in the transcript. That's clear in the grand jury
presentation. And all along the State has –- has maintained
that it was the defendant that caused those injuries.

The thing that did change was when they were caused,
the severity, and because the injuries, based on the
State's, um, additional forensic evidence through its
forensic expert, the evidence would have -- I mean the
injuries would have been caused five to seven days before.

McKeown later acknowledged that the omission theory was

not new to the defense, that the State had not been previously

aware that there was insufficient evidence to support the

omission theory in the 2012 indictment, and that the defense knew

all along it would possibly need to preserve testimony for

evidence occurring for a broader time period.

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

As noted above, the Family Court approved the State

Motion to Dismiss on April 17, 2018; the case was dismissed

without prejudice. The hearing date for McKeown's April 5, 2018

motion to dismiss was stricken (per minutes dated May 3, 2018),

with the court's minutes noting the dismissal without prejudice

on April 17, 2018.

A total of 204 days elapsed between September 25, 2017,

and April 17, 2018, which are excluded for Rule 48 purposes.

B. Further Proceedings

On May 23, 2018, the State recharged McKeown via

indictment in 2FFC-XX-XXXXXXX with Murder in the Second Degree in

violation of HRS § 707-701.5(1). Trial was set for August 27,

2018. A total of 36 days elapsed between April 17, 2018, and

May 23, 2018, which are excluded for Rule 48 purposes.

On June 14, 2018, McKeown requested and was granted

supervised release.

On August 27, 2018, trial was continued to March 4,

2019, because McKeown was still going through evidence, and his

expert would not be available until the first two weeks of March.

McKeown waived his Rule 48 rights for this period. A total of

189 days elapsed between August 27, 2018, and March 4, 2019,

which are excluded for Rule 48 purposes.

On January 22, 2019, the parties stipulated to and the

Family Court approved continuing trial to May 20, 2019.

McKeown filed the Rule 48 Motion to Dismiss on May 15,

2019, and the Speedy Trial Motion to Dismiss on June 13, 2019.

The Family Court heard the motions on June 19, 2019,

and stated its rationale as follows:

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

Ah, the Court has sat on this case since 2012 when the
case came up. And so I have seen, um, just about all of the
hearings that have occurred and there have been many, many,
many, many hearings.

Um, I -- I wanted to say that the Court didn't observe
any, and I think to use your word, um, malicious conduct on
either side. Um, I think it was -- I think it was always
heart wrenching when one of the attorneys involved had to
withdraw because it basically restarted the case.

Kind of like what happened when you came on board, Mr.
Nardi, just last year. Um, what made it extremely difficult
was that Mr. McKeown was in custody most of that time or a
lot of that time. Um, and that was factored in as the
delays became more and more, for whatever the reasons were.

Um, but I agree with you that it's, while not directly
relevant as to how many attorneys were assigned and why they
left, um, I just don't attribute that blame to either side.
It certainly wasn't Mr. McKeown firing his attorneys. It
wasn't that case. And it wasn't the attorneys not being
willing to serve. There were different circumstances that
caused that.

But in many (inaudible) we were just towards the end
getting ready to start a trial and then someone would get up
and leave. And -- and I think that was especially
troubling, um, and that happened with -- we know now that
you're the fourth attorney that was assigned to this case.

The second part that the Court recalls, ah, that was a
significant part was the availability of experts, or the
unavailability of experts, might be more.

There are some experts that weren't ready for six
months. They weren't going to be available. And to his
credit, Mr. McKeown waived most of that time I think at the
-- at the discussions of his attorney and -- and at their
advice.

Um, those seem to be the two biggest factors that I
can recall in this case just as a group or as a -- as a
majority of the reasons why these cases were continued. Was
either to accomodate the experts or because the attorneys
were leaving.

. . . .

I was at all of those hearings and I -- the attorneys
were very much in agreement with the delays that were
occurring for whatever advantage that each side may have --
may have gotten from that.

. . . .

A person who witnessed that being the case, at least
there were no objections made by defense, previous counsel,
I can understand why you would object now. But at the time
there were no counsel saying, your Honor, the State's
dragging their feet. They're not getting us the documents,
you know, we're at a disadvantage. Um, the parties seem to
be in agreement with the pace at which the trial was
proceeding. That's the best I can say.

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

On July 31, 2019, the Family Court entered Findings of

Fact, Conclusions of Law, and Order (2019 FOFs/COLs/Order),

dismissing 2FFC-XX-XXXXXXX without prejudice. A total of 107

days elapsed between March 4, 2019, and June 19, 2019, which are

excluded for Rule 48 purposes.

The total number of days elapsed from May 30, 2012, to

June 19, 2019, is 2,576 days. Of the 2,576 elapsed days, 2,196

days are excluded and 380 days are not excluded under Rule 48.

Accordingly, considering the permissible 180 day period pursuant

to Rule 48, McKeown was subject to an excess period of 200 days.

McKeown timely appealed the 2019 FOFs/COLs/Order. On

May 28, 2021, we vacated and remanded the 2019 FOFs/COLs/Order

with instructions to the Family Court to make specific findings

regarding the State Motion to Continue and the Family Court's

consideration thereof in its analysis. On December 29, 2021, the

Family Court entered the FOFs/COLs/Order.

The Family Court entered, inter alia, the following

findings regarding the State Motion to Continue and State Motion

to Dismiss:
17. On October 7, 2016, the State filed a Motion to
Continue Trial (hereinafter "State's Motion"). The State's
Motion was heard on October 12, 2016. The basis for the
State's Motion was due to the assigned Deputy Prosecutor
Robert Rivera being in trial in another case, State v.
Capobianco (2PC161000133). At the hearing on State's
Motion, the Defendant objected to the State's request for
continuance and did not waive any rights under HRPP Rule 48.
Over Defendant's objection, the Court granted the State's
Motion and trial was set for February 6, 2017. A total of
112 days elapsed between October 17, 2016, and February 6,
2017, and those day are included pursuant to HRPP Rule
48(c)(3).

. . . .

21. On April 17, 2018, the State of Hawaii made a
Motion to Dismiss without Prejudice case number
2FC121000280. The Court granted the motion and the case was
dismissed without Prejudice.

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

(Format altered).

McKeown challenges COLs 7 to 10, 12, and 14 to 17,

which provide in relevant part: 5
Analysis of the Estencion Factors

. . . .

7. Under the second Estencion factor, the court may
consider whether the delay was caused by the State's neglect
or deliberate misconduct, delays caused by the court itself,
or whether the delay was caused by the defendant's own
conduct. State v. Fukuoka, 141 Hawai i 48, 60, 404 P.3d
314, 326 (2017). "Responsibility for Rule 48's efficacy
does not rest solely on the prosecutor, but 'the prosecutor,
the court, and the accused share responsibility for carrying
out the speedy trial requirements of Rule 48.'" State v.
Faalafua, 67 Haw. 335, 339, 686 P.2d 826, 829 (1984)
(quoting State v. Soto, 63 Haw. 317, 321, 627 P.2d 279, 281
(1981)). In this case, neither party has ever engaged in
deliberate misconduct or neglect which would have
contributed to a delay in the proceedings. Moreover, it was
the Court's observation that the parties were very much in
agreement with the delays and continuances that were
occurring for whatever advantage each side may have gained
from it.

. . . .

8. The second Estencion factor weighs in favor of a
dismissal without prejudice.

9. "[U]nder the third Estencion factor, the court
evaluates considerations relating to the purposes of HRPP
Rule 48 and the administration of justice." Fukuoka, 141
Hawai i at 62, 404 P.3d at 329. "In analyzing the third
Estencion factor . . . the court must also consider[] the
impact of reprosecution on the administration of justice
generally." Id. at 63, 404 P.3d at 329. "Prejudice to the
defendant may also be considered when analyzing the impact
of reprosecution on the administration of HRPP rule 48 and
the administration of justice." Id. The presence of
prejudice to the defendant may be of substantial importance
of analyzing the third Estencion factor, but "there is no
requirement that the absence of prejudice be separately
considered prior to dismissal with prejudice under Rule
48(b)." Id. at 64, 404 P.3d at 330 (internal quotation
marks and citation omitted). In this case, considering the
possible prejudices which include lack of memory and loss of
potential witnesses as a result of the delay in the trial
proceedings and as a result of the prosecution re-filing
charges under both the commission and omission theories, the
Court found that parties had been in agreement in most of
the delays in the trial proceedings. Further, the Court
finds no impropriety on the part of the State in re-filing
charges using an additional theory as the "Rules of [Penal]
Procedure allow for a dismissal of a case and refiling when
there's a change in circumstance or a change in evidence."
See Transcript of Hearing on Motion to Dismiss on June 19,
2019, Pg. 27, lines 6-8.

5
Some citation formatting cleaned up.

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

10. The third Estencion factor weighs in favor of a
dismissal without prejudice.

. . . .

12. The Court further concludes based on the analysis
of the three (3) Estencion factors as noted above, that a
dismissal without prejudice is warranted.

Analysis of Speedy Trial Factors

. . . .

14. In this case, delays in the trial were a result
of agreement by the parties, with the consent of the
Defendant, or due to withdrawal of defense attorneys, [sic]
There were only two (2) significant periods of delay
attributed to the State. Once when the assigned Prosecutor
was in trial in another high-profile case and then following
the dismissal of 2FC121000280 and the re-filing of charges
in the current case number. Therefore, the first two
factors, weigh in favor of the State, as previously found in
the HRPP Rule 48 analysis.

15. As to factor three (3), the assertion of his
right to a speedy trial, the Defendant did not make any
active assertions during the pendency of the case until
filing a Motion to Dismiss for Speedy Trial Violation on
June 13, 2019. The Defendant was ready for trial in June
and October of 2016 when the assigned prosecutor became
unavailable due to being in trial in another courtroom.
During that time, the Defendant did not waive his rights to
a speedy trial and/or HRPP Rule 48. At all other times, the
parties were in agreement as to continuances. Therefore,
the third speedy trial factor weighs in favor of the State.

16. The fourth factor, prejudice to the defendant
weighs in favor of the State, as Defendant has only made a
showing of possible prejudice, rather than specific
prejudice.

17. Based on findings set forth above and taking into
consideration the numerous accommodations to continue and
the cooperation between the parties to seek a trial date the
Court cannot conclude that the Defendant's right to a speedy
trial has been violated.

(Format altered).

McKeown timely filed a Notice of Appeal.

II. POINTS OF ERROR

McKeown raises two points of error on appeal,

contending that the Family Court erred in failing to dismiss

2FFC-XX-XXXXXXX with prejudice (1) as a result of a HRPP Rule 48

violation, and (2) on the grounds that McKeown's rights to a

speedy trial under the Sixth Amendment of the U.S. Constitution

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

and article I, section 14 of the Hawai i Constitution were

violated.

III. APPLICABLE STANDARDS OF REVIEW
We review a trial court's decision to dismiss a case
with or without prejudice for violation of HRPP Rule 48 for
abuse of discretion. See State v. Estencion, 63 Haw. 264,
269, 625 P.2d 1040, 1044 (1981). An abuse of discretion
occurs when "the decisionmaker 'exceeds the bounds of reason
or disregards rules or principles of law or practice to the
substantial detriment of a party.'" State v. Kony, 138
Hawai i 1, 8, 375 P.3d 1239, 1246 (2016) (quoting State v.
Vliet, 95 Hawai i 94, 108, 19 P.3d 42, 56 (2001)).

State v. Fukuoka, 141 Hawai i 48, 55, 404 P.3d 314, 321 (2017).

The appellate court reviews questions of constitutional

law under the right/wrong standard. State v. Davis, 133 Hawai i

102, 111, 324 P.3d 912, 921 (2014).

IV. DISCUSSION

A. Rule 48 Dismissal - With or Without Prejudice

Pursuant to HRPP Rule 48(b), trial must commence within

six months from the date of arrest if bail is set or from the

filing of the charge, whichever is sooner. If the initial charge

is dismissed and recharged with the same charge, the time period

for the proceedings for both offenses are computed together,

albeit with the exclusion of the period between the dismissal of

the initial charge and the filing of the new charge. See, e.g.,

State v. Holt, 67 Haw. 246, 247, 684 P.2d 971, 971-92 (1984)

(computing time period for Rule 48 purposes based on proceedings

for both initial charge and subsequent re-indictment, excluding

the time period between the charge and the re-indictment).

It is undisputed that the Family Court properly found a

Rule 48 violation and dismissed the case. McKeown argues,

however, that the Family Court abused its discretion in failing

to order dismissal with prejudice.

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

In State v. Estencion, the Hawai i Supreme Court held:
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
dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.

63 Haw. at 269, 625 P.2d at 1044.

It is undisputed that the first Estencion factor – the

seriousness of the offense – weighs in favor of dismissal without

prejudice. The charge here stems from the alleged murder of a

young child by his own father. As noted by the Family Court, due

to the special circumstances of the offense, McKeown faces the

possibility of life in prison without parole.

McKeown argues that the Family Court erroneously

concluded that the second Estencion factor – reason for delay

that led to dismissal – and third Estencion factor – impact of

reprosecution on the administration of justice – both weighed in

favor of dismissal without prejudice. In the alternative,

McKeown argues that the Family Court abused its discretion by

dismissing without prejudice without properly considering the

second and third Estencion factors. McKeown argues that the

Family Court failed to consider the delay caused by granting the

State Motion to Continue over objection and the State Motion to

Dismiss one month prior to trial in analyzing the second and

third Estencion factors. McKeown argues that the Family Court

erred in finding that the parties agreed to the delays because

McKeown objected to the State Motion to Continue and the State

Motion to Dismiss.

The Family Court clearly did consider the delays

attributable to the State as they are included in the court's

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

FOFs. The crux of the issue appears to be whether the Family

Court allocated adequate weight to those delays in concluding

that the second Estencion factor weighs in favor of dismissal.

Notably, "[i]n evaluating the facts and circumstances of the

case, the court should focus on 'the culpability of the conduct

that led to the delay.'" Fukuoka, 141 Hawai i at 60, 404 P.3d at

326. The court may consider whether the delay was caused by the

State's neglect or deliberate misconduct, the defendant's

conduct, or by the court itself. Id. The court, the

prosecution, and the defendant all share the responsibility to

facilitate the timely resolution of proceedings. See id. at 61-

62, 404 P.3d at 327-28.

Although continuances requested by the defendant are

excluded in computing the time for trial commencement under

Rule 48, the trial court may consider these excluded time periods

in evaluating whether the Estencion factors weigh in favor of

dismissal with or without prejudice. See, e.g., id. at 61-62,

66, 404 P.3d at 327-28, 332 (holding that in evaluating the

second Estencion factor, the court may consider whether the delay

was caused by the defendant's conduct, including delays

attributed to defendant's discovery requests); State v. Nieto,

No. CAAP-XX-XXXXXXX, 2023 WL 5528918, *3 (Haw. App. Aug. 28,

2023) (SDO) (holding circuit court did not abuse its discretion

in dismissing the case without prejudice based in part on the

conclusion that "[w]ith respect to the facts and circumstances of

the case which led to the dismissal, the State's one continuance

. . . must be viewed in relation to [defendant's] 19 prior

requests to continue the trial date.").

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

Here, in weighing the second Estencion factor, the

Family Court concluded in COL 7 that neither party ever engaged

in deliberate misconduct or neglect which would have contributed

to a delay in the proceedings. The Family Court presided over

the many, many proceedings involving delays and observed that the

parties were very much in agreement with the delays and

continuances that were occurring. Obviously, this did not

include the two instances relied on by McKeown, the State Motion

to Continue and the State Motion to Dismiss. The Family Court's

FOFs and the record indicate that the majority of the

continuances were indeed upon McKeown's request or with his

agreement. Approximately seven years (2,576 days) elapsed since

the May 30, 2012 indictment, approximately six years (2,196 days)

of which were excluded via McKeown's waiver, and approximately

one year (380 days) of which was not excluded. Based on the

record, there were over two dozen continuances and/or delays, at

least thirteen of which were on McKeown's request or due to

McKeown's motions, and the vast majority of which were otherwise

agreed to and waived by McKeown. The record indicates that these

continuances were primarily due to the withdrawal and

substitution of three of McKeown's attorneys, the availability or

unavailability of McKeown's experts, and additional time needed

for the production and review of records by McKeown's attorneys

or experts.

Regarding the State Motion to Continue, McKeown argues

that a delay due to the prosecutor being in a separate trial was

foreseeable, the State should have assigned a different

prosecutor to McKeown's case, and the refusal to assign a

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

different prosecutor supports dismissal with prejudice. 6

However, even if that particular delay might have potentially

been avoidable, there is no argument or support for the

proposition that it was malicious or calculated, and that on

balance, the facts and circumstances of that delay do not weigh

in favor of dismissal with prejudice. See State v. Kim, 109

Hawai i 59, 64, 122 P.3d 1157, 1162 (App. 2005), superseded on

other grounds by State v. Nicol, 140 Hawai i 482, 494 n.12, 403

P.3d 259, 271 n.12 (2017) ("Despite the fact that the State's

delay was unjustified, it does not in and of itself tip the

balance toward dismissal with prejudice."); see also State v.

White, 92 Hawai i 192, 203-04, 990 P.2d 90, 101-02 (1999)

(holding in speedy trial violation context that defendant being

responsible for substantial part of the delay outweighed State's

motions to continue that did not appear calculated to cause

unreasonable delay).

McKeown also argues that the State Motion to Dismiss

was a deliberate delay done to create a tactical advantage less

than a month before trial was set to commence. McKeown asserts

that because he had motions pending designed to limit the State

to presenting only a theory of acute injury, the State re-

indicted McKeown with evidence in direct conflict with the acute

injury theory, and instead relied on a theory of omission,

thereby weakening McKeown's defense. The Family Court found,

6
The Family Court stated in FOF 17 that the prosecutor in this case
was in trial in State v. Capobianco, 2PC161000133. This court takes judicial
notice that the Capobianco case involved a jury trial on charges of second
degree murder and arson and was conducted over several months before the jury
reached a verdict. The prosecutor first appeared in this case (McKeown) when
the original complaint was filed on June 1, 2012.

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

however, that the State re-filed charges under both commission

and omission theories, and that there was "no impropriety on the

part of the State in re-filing charges using an additional theory

as the [HRPP] allow for a dismissal of a case and refiling when

there's a change in circumstance or a change in evidence."

Indeed, the 2012 indictment charged McKeown under both commission

and the omission theories. The 2012 indictment also charged

McKeown based on a time period spanning May 21, 2012, through

May 29, 2012, i.e., the nine days prior to Son's death on May 30,

2012. McKeown in his 2018 Motion to Dismiss argued that the

Family Court should dismiss or strike the omission theory portion

of the 2012 indictment because the State had not presented

sufficient competent evidence that Son died as a result of a

failure to act. The State then dismissed the initial charges,

re-indicted McKeown, and entered evidence supporting the omission

theory. The State explained that the re-indictment was necessary

because it became aware of a major error pertaining to one of its

expert witnesses regarding the timing and severity of the

injuries leading to Son's death. McKeown has acknowledged that

the omission theory was not new to the defense, that the State

had not been previously aware that there was insufficient

evidence to support the omission theory in the 2012 indictment,

and that the defense knew all along it would possibly need to

preserve testimony for evidence occurring for a broader time

period. Accordingly, it was not clearly erroneous for the Family

Court to find that the State's re-indictment of McKeown was not

due to a deliberate delay or to hamper the defense.

20
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Based on a review of the entirety of the record, we

conclude that the Family Court properly weighed the delays caused

by the State against delays caused or agreed to by the defendant

and did not err or abuse its discretion in concluding that on

balance, the second Estencion factor does not weigh in favor of

dismissal with prejudice.

With respect to the third Estencion factor, McKeown

argues that the impact of reprosecution on the administration of

justice weighs in favor of dismissal with prejudice because

McKeown's case had already been dismissed twice, the lengthy

delay caused by the State resulted in an unreasonably oppressive

amount of pretrial incarceration, and the defense was prejudiced

when the State changed its theory of the case after the case had

been pending for five years.

In analyzing the third Estencion factor, the court "may

consider whether the State or the court's conduct reflect a

pattern of lack of diligence, thereby suggesting that dismissal

with prejudice is necessary to vindicate the purposes of HRPP

Rule 48 and justice generally." Fukuoka, 141 Hawai i at 63, 404

P.3d at 329. The court may also consider prejudice to the

defendant due to the length of the delay insofar as a lengthy

delay may reflect a lack of due diligence on the part of the

State or the court. Id. at 65, 404 P.3d at 331. Prejudice to

the defendant is not a mandatory factor to be considered by the

trial court prior to ordering dismissal with prejudice under

Rule 48. Id. at 64, 404 P.3d at 330. However, a finding of

prejudice is not insignificant. Kim, 109 Hawai i at 66, 122 P.3d

at 1164.

21
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Here, the Family Court analyzed the third Estencion

factor as follows:
In this case, considering the possible prejudices which
include lack of memory and loss of potential witnesses as a
result of the delay in the trial proceedings and as a result
of the prosecution re-filing charges under both the
commission and omission theories, the Court found that
parties had been in agreement in most of the delays in the
trial proceedings. Further, the Court finds no impropriety
on the part of the State in re-filing charges using an
additional theory as the "Rules of [Penal] Procedure allow
for a dismissal of a case and refiling when there's a change
in circumstance or a change in evidence."

McKeown argues that the delay combined with the State's

change in theory caused him prejudice because McKeown would have

to search for witnesses who may no longer be available or have

lost their memories of the days leading up to Son's death.

However, as McKeown acknowledges in his opening brief, the Family

Court expressly addressed the possibility of prejudice due to

lack of memory and loss of potential witnesses as a result of the

delay in trial proceedings, and nevertheless concluded that the

third Estencion factor weighed in favor of dismissal without

prejudice. McKeown does not point to specific witnesses or

potentially exculpatory evidence that might have been lost or

forgotten due to the delays caused by the State. McKeown

generally asserts that the delay combined with the State's change

in theory resulted in him having to search for witnesses who saw

Son five to seven days prior to Son's death, five years after the

observations were made. However, the majority of the over five

year delay prior to the State re-filing the charges against

McKeown was upon McKeown's request or with his agreement, and not

due to a lack of due diligence on the part of the State or court.

See Fukuoka, 141 Hawai i at 65, 404 P.3d at 331.

22
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

On this record, notwithstanding the overall period of

delay, as well as the period of delay attributable to the State,

we conclude that the Family Court did not abuse its discretion in

determining that the third Estencion factor weighed in favor of

dismissal without prejudice. Accordingly, we conclude that the

Family Court did not abuse its discretion in dismissing the case

without prejudice for violation of Rule 48.

B. Constitutional Rights to a Speedy Trial

McKeown argues that the Family Court erred in failing

to dismiss the indictment with prejudice as a result of the

violation of McKeown's constitutional right to a speedy trial

because all four Barker factors weigh in favor of finding a

constitutional speedy trial violation. McKeown challenges COLs

14 to 17 in conjunction with his argument that his constitutional

right to a speedy trial was violated.
The Sixth Amendment to the United States Constitution
and article I, section 14 of the Hawai i Constitution
guarantee a defendant in a criminal case the right to a
speedy trial in all prosecutions. State v. Lau, 78 Hawai i
54, 62, 890 P.2d 291, 299 (1995). Whether the defendant's
right to a speedy trial has been violated is determined by
applying the four factors articulated in Barker v. Wingo,
407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): "(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 Hawai i at 62, 890
P.2d at 299 (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182).
No one factor "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. (quoting State v. Wasson, 76
Hawai i 415, 419, 879 P.2d 520, 524 (1994)). Rather, the
factors are related "and must be considered together with
such circumstances as may be relevant." Id. (quoting
Wasson, 76 Hawai i at 419, 879 P.2d at 524). When a
defendant's right to a speedy trial has been violated, the
only remedy is dismissal with prejudice. Id.

State v. Visintin, 143 Hawai i 143, 156-57, 426 P.3d 367, 380-81

(2018).

The supreme court further explained:
[I]n accordance with the U.S. Supreme Court's decision
in Barker, that different weights are assigned to different

23
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

reasons in determining whether a delay of trial violates a
defendant's constitutional speedy trial right. A deliberate
attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government. A more
neutral reason such as negligence or overcrowded courts
should be weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such
circumstances must rest with the government rather than with
the defendant.

Id. at 159, 426 P.3d at 383 (quoting Lau, 78 Hawai i at 63, 890

P.2d at 300) (cleaned up).

Regarding the first Barker factor – length of delay –

McKeown argues that the Family Court erred in stating the delays

were a result of agreement by the parties. For purposes of its

speedy trial analysis, the Family Court clearly recognized that

most, but not all, of the delays were by agreement of the

parties. McKeown further argues that the 380 day length of the

delays is excessive, and that the first Barker factor therefore

weighs in favor of a finding of a violation of McKeown's right to

a speedy trial.

We note that the length of delay factor serves as a

trigger for whether inquiry into the other Barker factors is

warranted. State v. White, 92 Hawai i at 202, 990 P.2d at 100

("The length of delay triggers the Barker analysis."). It does

not itself weigh in favor of or against a finding of a speedy

trial violation. See id. at 203, 990 P.2d at 101 (holding that

eleven-month delay warranted inquiry into the other Barker

factors).

Here, as discussed supra, the Family Court found that

the total number of days that were not waived by McKeown was 380

days, and the vast majority of the cumulatively lengthy delay of

2,576 days were upon request, with agreement, and/or upon waiver

by McKeown. The length of the delay here warranted inquiry into

24
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

the other Barker factors. The Family Court concluded that the

length of the delay and the second Barker factor – reasons for

delay – weighed in favor of the State, pointing to the other

high-profile trial the prosecutor was in, and the dismissal and

refiling, which was due to new information concerning flawed

evidence previously presented to support the earlier indictment,

as supporting that conclusion. It appears that the Family Court

viewed the State-caused reasons for delay as neutral, and

considered that the lengthiness of the overall delay weighed in

favor of the State because most of the delay was at the request

or with the agreement of McKeown. We cannot conclude that the

Family Court erred in this determination. See White, 92 Hawai i

at 203-05, 990 P.2d at 101-02 (holding that on balance, the

second Barker factor weighed in favor of the State because the

defendant contributed in substantial part to the delay which he

later claimed prejudiced him, and the State's delay did not

appear to be calculated to cause unreasonable delay).

Regarding the third Barker factor – defendant's

assertion of his right to speedy trial – McKeown argues that the

Family Court erred by failing to explain why the two significant

periods of delay attributed to the State did not support the

finding of a constitutional violation, or how it is mitigated by

other delays. McKeown submits that he had demanded that his case

proceed to trial at the time of these two delays.

A defendant has no duty to bring himself or herself to

trial; the State has that duty. Visintin, 143 Hawai i at 160,

426 P.3d at 384 (quoting Wasson, 76 Hawai i at 420, 879 P.2d at

525). Thus, a defendant does not waive his or her right to a

25
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

speedy trial by failing to demand one. Id. However, the

assertion of the right to a speedy trial is "entitled to strong

evidentiary weight in determining whether the defendant is being

deprived of the right." Id. (quoting Barker, 407 U.S. at 531-

32). A defendant's motion to dismiss based on speedy trial "is

tantamount to an assertion of his or her constitutional right to

a speedy trial." Id. (quoting Wasson, 76 Hawai i at 420-21, 879

P.2d at 525-26).

Here, McKeown did in fact file his Speedy Trial Motion

to Dismiss on June 13, 2019 – after he was re-indicted following

the granting of the State Motion to Dismiss – asserting his

constitutional right to a speedy trial had been violated.

McKeown argues that he demanded that his case proceed to trial

when the State filed the State Motion to Continue and the State

Motion to Dismiss, but he does not provide any support in the

record showing that he previously asserted his speedy trial

rights.7 Indeed, just prior to the State Motion to Dismiss,

McKeown had filed his own Motion to Dismiss and did not raise any

arguments regarding his right to a speedy trial. In the Speedy

Trial Motion to Dismiss, McKeown did not demand or assert that he

wanted a speedy trial; rather, he demanded that the indictment be

dismissed with prejudice because of a speedy trial violation.

This is more than a semantical distinction in this case because

of the years of delay in asserting his speedy trial rights and in

seeking delays for reasons that were beneficial to his defense –

7
McKeown filed no written opposition to the State Motion to
Continue and did not request or otherwise provide a transcript for the October
12, 2016 hearing. There is no filing by McKeown related to the State Motion
to Dismiss; the case was dismissed without a hearing.

26
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

at no point did McKeown actually assert that he wanted a speedy

trial.

In Barker, the Supreme Court explored the difficulty of

this analysis and concluded that a flexible approach, rather than

a rigid test, was necessary to properly determine whether a

defendant's constitutional right to a speedy trial was violated:
[A] suggested alternative would restrict consideration
of the right to those cases in which the accused has
demanded a speedy trial. Most States have recognized what
is loosely referred to as the 'demand rule,' although eight
States reject it. It is not clear, however, precisely what
is meant by that term. Although every federal court of
appeals that has considered the question has endorsed some
kind of demand rule, some have regarded the rule within the
concept of waiver, whereas others have viewed it as a factor
to be weighed in assessing whether there has been a
deprivation of the speedy trial right. We shall refer to
the former approach as the demand-waiver doctrine. The
demand-waiver doctrine provides that a defendant waives any
consideration of his right to speedy trial for any period
prior to which he has not demanded a trial. Under this
rigid approach, a prior demand is a necessary condition to
the consideration of the speedy trial right. . . .

Such an approach, by presuming waiver of a fundamental
right from inaction, is inconsistent with this Court's
pronouncements on waiver of constitutional rights. The
Court has defined waiver as an intentional relinquishment or
abandonment of a known right or privilege. Courts should
indulge every reasonable presumption against waiver, and
they should not presume acquiescence in the loss of
fundamental rights. [W]e have held:

Presuming waiver from a silent record is
impermissible. The record must show, or there must be
an allegation and evidence which show, that an accused
was offered counsel but intelligently and
understandably rejected the offer. Anything less is
not waiver.

The Court has ruled similarly with respect to waiver
of other rights designed to protect the accused.

In excepting the right to speedy trial from the rule
of waiver we have applied to other fundamental rights,
courts that have applied the demand-waiver rule have relied
on the assumption that delay usually works for the benefit
of the accused and on the absence of any readily
ascertainable time in the criminal process for a defendant
to be given the choice of exercising or waiving his right.
But it is not necessarily true that delay benefits the
defendant. There are cases in which delay appreciably harms
the defendant's ability to defend himself. Moreover, a
defendant confined to jail prior to trial is obviously
disadvantaged by delay as is a defendant released on bail
but unable to lead a normal life because of community
suspicion and his own anxiety.

27
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

The nature of the speedy trial right does make it
impossible to pinpoint a precise time in the process when
the right must be asserted or waived, but that fact does not
argue for placing the burden of protecting the right solely
on defendants. A defendant has no duty to bring himself to
trial; the State has that duty as well as the duty of
insuring that the trial is consistent with due process.
Moreover, for the reasons earlier expressed, society has a
particular interest in bringing swift prosecutions, and
society's representatives are the ones who should protect
that interest.

It is also noteworthy that such a rigid view of the
demand-waiver rule places defense counsel in an awkward
position. Unless he demands a trial early and often, he is
in danger of frustrating his client's right. If counsel is
willing to tolerate some delay because he finds it
reasonable and helpful in preparing his own case, he may be
unable to obtain a speedy trial for his client at the end of
that time. Since under the demand-waiver rule no time runs
until the demand is made, the government will have whatever
time is otherwise reasonable to bring the defendant to trial
after a demand has been made. Thus, if the first demand is
made three months after arrest in a jurisdiction which
prescribes a six-month rule, the prosecution will have a
total of nine months—which may be wholly unreasonable under
the circumstances. The result in practice is likely to be
either an automatic, pro forma demand made immediately after
appointment of counsel or delays which, but for the
demand-waiver rule, would not be tolerated. Such a result
is not consistent with the interests of defendants, society,
or the Constitution.

We reject, therefore, the rule that a defendant who
fails to demand a speedy trial forever waives his right.
This does not mean, however, that the defendant has no
responsibility to assert his right. We think the better
rule is that the defendant's assertion of or failure to
assert his right to a speedy trial is one of the factors to
be considered in an inquiry into the deprivation of the
right. Such a formulation avoids the rigidities of the
demand-waiver rule and the resulting possible unfairness in
its application. It allows the trial court to exercise a
judicial discretion based on the circumstances, including
due consideration of any applicable formal procedural rule.
It would permit, for example, a court to attach a different
weight to a situation in which the defendant knowingly fails
to object from a situation in which his attorney acquiesces
in long delay without adequately informing his client, or
from a situation in which no counsel is appointed. It would
also allow a court to weigh the frequency and force of the
objections as opposed to attaching significant weight to a
purely pro forma objection.

In ruling that a defendant has some responsibility to
assert a speedy trial claim, we do not depart from our
holdings in other cases concerning the waiver of fundamental
rights, in which we have placed the entire responsibility on
the prosecution to show that the claimed waiver was
knowingly and voluntarily made. Such cases have involved
rights which must be exercised or waived at a specific time
or under clearly identifiable circumstances, such as the
rights to plead not guilty, to demand a jury trial, to
exercise the privilege against self-incrimination, and to
have the assistance of counsel. We have shown above that
the right to a speedy trial is unique in its uncertainty as

28
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

to when and under what circumstances it must be asserted or
may be deemed waived. But the rule we announce today, which
comports with constitutional principles, places the primary
burden on the courts and the prosecutors to assure that
cases are brought to trial. We hardly need add that if
delay is attributable to the defendant, then his waiver may
be given effect under standard waiver doctrine, the demand
rule aside.

We, therefore, reject both of the inflexible
approaches—the fixed-time period because it goes further
than the Constitution requires; the demand-waiver rule
because it is insensitive to a right which he have deemed
fundamental. The approach we accept is a balancing test, in
which the conduct of both the prosecution and the defendant
are weighed.

Barker, 407 U.S. at 523-30 (cleaned up).

In implementing that approach here, we cannot conclude

that the third Barker factor weighed heavily in favor of either

McKeown or the State. As the Supreme Court further explained,

none of the Barker factors are either necessary or sufficient to

establish a deprivation of the constitutional right of speedy

trial. Id. at 533 ("these factors have no talismatic qualities;

courts must still engage in a difficult and sensitive balancing

process . . . carried out with full recognition that the

accused's interest in a speedy trial is specifically affirmed in

the Constitution").

Thus, we turn to the fourth Barker factor – prejudice

to the defendant. McKeown was prejudiced to an extent by the

pretrial time he spent incarcerated, although he was released in

2019 before he asserted his speedy trial rights were violated.

We similarly recognize that McKeown has lived under a cloud of

suspicion that he murdered his four-year-old child. However,

there is no specific claim that witnesses died or evidence

otherwise became unavailable due to the delay, although that

remains a possibility as the case has not gone to trial and the

case against McKeown was dismissed without prejudice, apparently

29
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

without a further indictment. We cannot conclude that this

factor weighs heavily in favor of either party. However, we also

cannot conclude that the Family Court clearly erred in

determining that it weighed more in favor of the State.

Considering all of the Barker factors, and the specific

and overall circumstances reflected in the Family Court findings

and conclusions, as well as the entirety of the record in this

case, particularly the extended periods of delay for which

McKeown was responsible or in which he acquiesced without seeking

a speedy trial, we conclude that the Family Court did not err in

determining that McKeown's constitutional right to speedy trial

was not violated. Importantly, however, we further conclude that

if McKeown were re-indicted and tried, in light of the additional

passage of time, if, for example, witnesses died or evidence

disappeared or testimony at trial indicated major lapses of

memory, or the circumstances otherwise changed to McKeown's

prejudice, McKeown could again seek relief based on his

constitutional right to speedy trial.

V. CONCLUSION

For these reasons, the Family Court's December 29, 2021

FOFs/COLs/Order is affirmed.

DATED: Honolulu, Hawai i, July 18, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Matthew Nardi,
(Law Office of Matthew Nardi), /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Stephen K. Tsushima, /s/ Clyde J. Wadsworth
Special Deputy Attorney Associate Judge
General,
City & County of Honolulu,
for Plaintiff-Appellee.

30