State v. Wood

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUL-2025
08:07 AM
Dkt. 44 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellant,
v.
BASIL WOODY, Defendant-Appellee

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(CASE NO. 3DTA-23-00311)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka and Guidry, JJ.)

In this appeal, Plaintiff-Appellant State of Hawai‘i
(State) challenges an order denying its motion to continue a
suppression hearing, and a subsequent order granting the
defendant's motion to suppress evidence. We vacate and remand.
The State appeals from the July 28, 2023 "Order
Granting [Defendant-Appellee Basil Woody (Woody)]'s First
Pretrial Motion: Motion to Suppress Fruits of Warrantless
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Seizure" (Order Granting Motion to Suppress), filed and entered
by the District Court of the Third Circuit (District Court). 1
The State contends the District Court erred by
granting Woody's motion to suppress, and denying the State's
motion to continue the suppression hearing due to the
unavailability of the State's witness.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve the
State's contention as follows.
On February 21, 2023, Woody was charged with Operating
a Vehicle Under the Influence of an Intoxicant.
On April 10, 2023, Woody filed a motion to suppress,
requesting to suppress any evidence obtained by Hawai‘i Police
Department Officer Alexis Molina (Officer Molina) during the
warrantless stop of Woody's vehicle.
On April 24, 2023, Woody appeared in court and was
ordered to return on June 16, 2023 for an evidentiary hearing on
the motion to suppress.
On June 14, 2023, two days before the June 16, 2023
suppression hearing, the State filed a motion to continue the
hearing because Officer Molina was unavailable to testify due to
military training and would be "on extended military duty" until
August 8, 2023. On the same day, the State filed an opposition
to Woody's motion to suppress, arguing that Officer Molina had
reasonable suspicion and probable cause to believe Woody was
operating a vehicle under the influence of an intoxicant.
At the June 16, 2023 suppression hearing, the State
orally moved for a continuance because of Officer Molina's

1 The Honorable Joanna E. Sokolow presided.

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unavailability and asked for a new hearing date to be set. The
State noted that this was its "first continuance" and that it
had Hawai‘i Rules of Penal Procedure "Rule 48 time in excess
[sic] . . . through October 9th on this[.]"
The District Court questioned the State regarding its
efforts to ascertain Officer Molina's availability. The State
explained that Officer Molina was subpoenaed on June 7, 2023;
Officer Molina informed the State of his unavailability on June
12, 2023; and the prosecutor did not contact Officer Molina
between April 24, 2023, when the motion to suppress was set, and
June 12, 2023, to confirm his availability for the June 16, 2023
hearing. The prosecutor also informed the District Court of the
case assignment procedure at his office, as follows:
[DEPUTY PROSECUTING ATTORNEY (DPA)]: . . . the way
our schedule works is we're assigned a particular trial
date. I did not get this file until last Friday so I did
not speak to Officer Molina. My, uh, [sic] I usually prep
people about two days before the hearing.

Officer Molina had called me on Monday to inform me
that he was unavailable and also inform me of his ongoing
military leave beginning on July 3rd.

. . . .

. . . As I said, you know, [sic] our schedules are
set in [sic] such that, you know, [sic] we're assigned a
particular trial and motion date. A lot of times I'm not
getting the file 'til [sic] late.

I've addressed that internally with the office.
Going forward we're gonna [sic] make sure that this
situation does not occur in the future. So [sic] I extend
my apologies to the Court . . . .

(Emphases added.)
The District Court found that the State did not "act[]
promptly" to ascertain the availability of Officer Molina and
denied the State's motion to continue, stating:
THE COURT: . . . the issue that the Court is
having is that it's . . . not acceptable that when a
motion is set in April that no effort whatsoever is

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made to ascertain the availability of an officer
prior to a few days before the hearing.

. . . .

Right, but had the State acted promptly to find
out about this officer's schedule they could have
moved to advance the hearing and could have done it
in May.

. . . .

. . . What I am contemplating doing is denying
the motion to continue and that [sic] you need to
have the hearing today. So [sic] that's what the
Court's gonna [sic] do.

(Emphases added.)
After denying the State's motion to continue, the
District Court proceeded with the motion to suppress. The State
indicated it had to "concede" the warrantless arrest of Woody
because it did not have Officer Molina available to present
testimony to "contest" the warrantless arrest, and the District
Court then granted the motion to suppress, as follows:
THE COURT: . . . is the State conceding that
there's no warrant in this matter?

[DPA]: The State's gonna [sic] concede, Your
Honor. I mean based on that --

[DEFENSE COUNSEL]: Thank you.

[DPA]: -- then, you know, I'm not able to
proceed. I don't have Officer Molina here.

THE COURT: Okay.

[DEFENSE COUNSEL]: Yes, Your Honor. We would
assert and I believe the State has -- I think the
State has [sic] concurred in their memoranda in
opposition, I could be wrong, that this was a
warrantless arrest.

In any event if that wasn't pled in the State's
motion I would –- I would here stipulate with the
State that the arrest was warrantless and make the
argument that the burden then shifts to the State.

THE COURT: Okay.

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[DPA]: State does not contest that, Your Honor.

. . . .

THE COURT: Okay. Court will grant the motion to
suppress.

(Emphases added.) The District Court entered the July 28, 2023
Order Granting Motion to Suppress, and the "Order Denying
[State's] Motion to Continue Hearing" (Order Denying Motion to
Continue) on August 1, 2023. The State timely appealed.
We review the denial of the State's motion to continue
for abuse of discretion. State v. O'Donnell, No. 29730, 2009 WL
5116359, at *2 (Haw. App. Dec. 29, 2009) (SDO) (citing State v.
Lee, 9 Haw. App. 600, 603, 856 P.2d 1279, 1281 (App. 1993)).
When evaluating a motion to continue based on the unavailability
of a witness, the movant must "show that (1) the movant acted
with due diligence to obtain the attendance of the witness;
(2) the witness would provide substantial favorable evidence for
the movant; (3) the witness is available and willing to testify;
and (4) the denial of the continuance would result in material
prejudice to the movant" (Lee test). Id. (citing Lee, 9 Haw.
App. at 604, 856 P.2d at 1282). 2
Here, the record reflects the District Court denied
the State's first request for a continuance for a lack of
diligence, reasoning that the State failed to "act[] promptly"
to ascertain the availability of Officer Molina. "In
determining whether due diligence has been shown, [the] primary
emphasis must be on the reasonableness of the efforts actually

2 The Lee test to evaluate a continuance was overruled in part by
State v. Williander, as inapplicable to situations where a defendant moves
for a continuance. See 142 Hawai‘i 155, 163, 415 P.3d 897, 905 (2018) ("We
conclude that the Lee test goes too far in limiting the right to compulsory
process, thus creating unnecessary burdens on defendants who wish to exercise
this right."). Here, because the State was moving to continue, the Lee test
still applies.

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made, not on the alternatives that might have been available."
State v. Jackson, 8 Haw. App. 624, 632, 817 P.2d 130, 135-36
(App. 1991) (citation omitted). Focusing on the efforts
actually made for this first hearing on the suppression motion,
where the subpoena for Officer Molina was issued on June 7,
2023; the assigned prosecutor did not receive the file until
June 9, 2023, "last Friday" before the June 16, 2023 hearing;
and the prosecutor was in communication with the officer
regarding his availability -- we conclude that while not prompt,
these efforts were reasonable and established sufficient
diligence under the circumstances. See id. Under the Lee test,
the State: (1) "acted with due diligence to obtain" Officer
Molina's presence by its June 7, 2023 subpoena; (2) represented
that Officer Molina "would provide substantial favorable
evidence" for the State because Officer Molina had "both
reasonable suspicion and probable cause" to make the warrantless
arrest; (3) indicated that Officer Molina was willing and would
be available to testify when his extended military duty ended on
August 8, 2023; and (4) showed that the denial of the
continuance would result in "material prejudice" to the State,
where the State could not oppose the motion to suppress without
Officer Molina's testimony. See O'Donnell, 2009 WL 5116359, at
*2 (citing Lee, 9 Haw. App. at 604, 856 P.2d at 1282). Thus,
the District Court acted outside its discretion in denying the
State's motion to continue the suppression hearing under these
circumstances, and we reverse the Order Denying Motion to
Continue. See id. (citing Lee, 9 Haw. App. at 603, 856 P.2d at
1281).
Because we conclude that the suppression hearing
should have been continued, we vacate the Order Granting Motion
to Suppress.

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For the foregoing reasons, we vacate the July 28, 2023
Order Granting Motion to Suppress, filed and entered by the
District Court of the Third Circuit, and remand for further
proceedings consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai‘i, July 25, 2025.
On the briefs:
/s/ Karen T. Nakasone
Stephen L. Frye,
Chief Judge
Deputy Prosecuting Attorney,
for Plaintiff-Appellant.
/s/ Keith K. Hiraoka
Associate Judge
Eli N. Bowman,
for Defendant-Appellee.
/s/ Kimberly T. Guidry
Associate Judge

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