State v. Vitti

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JUL-2023
08:13 AM
Dkt. 46 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
THOMAS R. VITTI, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KANEOHE DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Thomas Raymond Vitti (Vitti)

appeals from the March 17, 2022 Notice of Entry of Judgment

And/Or Order (Judgment) entered by the Honolulu Division of the

District Court of the First Circuit (District Court).1

On August 12, 2020, Plaintiff-Appellee State of Hawai#i

(State) filed a complaint (Complaint) alleging that on August 11,

2020, Vitti committed the offense of Terroristic Threatening in

1
The Honorable Timothy E. Ho presided.
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the Second Degree (Terroristic Threatening Second) in violation

of Hawaii Revised Statutes (HRS) § 707-717(1) (2014).2 A bench

2
HRS § 707-717 provides:

§ 707-717 Terroristic threatening in the second
degree. (1) A person commits the offense of terroristic
threatening in the second degree if the person commits
terroristic threatening other than as provided in section
707-716.
(2) Terroristic threatening in the second degree is
a misdemeanor.

HRS § 707-716 (2014) provides:

§ 707-716 Terroristic threatening in the first
degree. (1) A person commits the offense of terroristic
threatening in the first degree if the person commits
terroristic threatening:
(a) By threatening another person on more than one
occasion for the same or a similar purpose;
(b) By threats made in a common scheme against
different persons;
(c) Against a public servant arising out of the
performance of the public servant's official
duties. For the purposes of this paragraph,
"public servant" includes but is not limited to
an educational worker. "Educational worker" has
the same meaning as defined in section 707-711;
(d) Against any emergency medical services provider
who is engaged in the performance of duty. For
purposes of this paragraph, "emergency medical
services provider" means emergency medical
services personnel, as defined in section
321-222, and physicians, physician's assistants,
nurses, nurse practitioners, certified
registered nurse anesthetists, respiratory
therapists, laboratory technicians, radiology
technicians, and social workers, providing
services in the emergency room of a hospital;
(e) With the use of a dangerous instrument or a
simulated firearm. For purposes of this
section, "simulated firearm" means any object
that:
(i) Substantially resembles a firearm;
(ii) Can reasonably be perceived to be a
firearm; or
(iii) Is used or brandished as a firearm; or
(f) By threatening a person who:
(i) The defendant has been restrained from, by
order of any court, including an ex parte
order, contacting, threatening, or
physically abusing pursuant to chapter 586; or
(ii) Is being protected by a police officer
ordering the defendant to leave the
premises of that protected person pursuant
(continued...)

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trial was held on March 17, 2022. The complaining witness (CW)

was the only witness. The District Court found Vitti guilty as

charged.

Vitti raises two points of error on appeal, arguing

that: (1) the District Court erred in denying Vitti's motion to

dismiss the Complaint;3 and (2) the District Court abused its

discretion in sentencing Vitti to a six-month jail sentence.

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 by the parties, we

resolve Vitti's points of error as follows:

(1) Vitti contends that the Complaint was fatally

defective under State v. Thompson, 150 Hawai#i 262, 267, 500 P.3d

447, 452 (2021), because the Complaint was not supported by the

complainant's signature, or a declaration in lieu of signature

pursuant to HRS § 805-1 (2014).4

2
(...continued)
to section 709-906(4), during the
effective period of that order.
(2) Terroristic threatening in the first degree is a
class C felony.
3
The Honorable Summer Kupau-Odo presided.
4
HRS § 805-1 has since been amended. However, at all relevant
times, HRS § 805-1 provided:

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

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The Complaint, which is signed by the deputy

prosecuting attorney identified therein, states:
The undersigned Deputy Prosecuting Attorney of the
City and County of Honolulu, State of Hawai #i charges:

On or about August 11, 2020, in the City and County of
Honolulu, State of Hawai#i, THOMAS RAYMOND VITTI threatened,
by word or conduct, to cause bodily injury to [CW], in
reckless disregard of the risk of terrorizing said person
thereby committing the offense of Terroristic Threatening in
the Second Degree, in violation of Section 707-717(1) of the
Hawai#i Revised Statutes. The threat must be objectively
capable of causing fear of bodily injury in a reasonable
person at whom the threat was directed and who was familiar
with the circumstances under which the threat was made, and:
(1) the threat on its face and in the circumstances in which
it was made must be so clear, unconditional, immediate, and
specific as to the person threatened, that the threat
communicated a seriousness of purpose and an imminent
likelihood of being carried out; or (2) THOMAS RAYMOND VITTI
possessed the apparent ability to carry out the threat, such
that the threat was reasonably likely to cause fear of
bodily injury in [CW]. The relative attributes of THOMAS
RAYMOND VITTI and [CW] must be taken into consideration in
determining whether the threat, under the circumstances, was
objectively capable of causing fear of bodily injury in a
reasonable person. Relative attributes may include, but are
not limited to, size, weight, occupation, training, and
status of THOMAS RAYMOND VITTI and [CW].

I, Matthew M. Kajiura, declare under penalty of law
that the foregoing is true and correct to the best of my
knowledge and belief.

4
(...continued)
If the original complaint results from the issuance of a
traffic summons or a citation in lieu of an arrest pursuant
to section 803-6, by a police officer, the oath may be
administered by any police officer whose name has been
submitted to the prosecuting officer and who has been
designated by the chief of police to administer the oath, or
the complaint may be submitted by declaration in accordance
with the rules of court. Upon presentation of the written
complaint to the judge in whose circuit the offense
allegedly has been committed, the judge shall issue a
warrant, reciting the complaint and requiring the sheriff,
or other officer to whom it is directed, except as provided
in section 805-3, to arrest the accused and to bring the
accused before the judge to be dealt with according to law;
and in the same warrant the judge may require the officer to
summon such witnesses as are named in the warrant to appear
and give evidence at the trial. The warrant may be in the
form established by the usage and practice of the issuing
court.

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The Hawai#i Supreme Court clarified its holding in

Thompson in State v. Mortensen-Young, 152 Hawai#i 385, 526 P.3d

362 (2023). In Mortensen-Young, the supreme court held that HRS

§ 805-1 applies only to criminal complaints used to obtain a

penal summons or arrest warrant. Id. at 397, 526 P.3d at 374. In

other cases, Hawai#i Rules of Penal Procedure (HRPP) Rule 7

provides the proper framework to analyze the sufficiency of

complaints. Id. at 399, 526 P.3d at 376. The supreme court held

that each of the appellees was properly charged by a complaint

signed by the prosecutor, pursuant to HRPP Rule 7(d), which does

not require that a "'charging instrument in a misdemeanor case be

signed by anyone other than a prosecutor'" or be "'subscribed

under oath or made by declaration in lieu of an affidavit by

anyone.'" Id.

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

inapplicable because the Complaint was not used to obtain a penal

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

definite statement of the essential facts, was signed by a

prosecutor, and referenced the statute that Vitti allegedly

violated, as required by HRPP Rule 7(d). The Complaint is a

charging instrument that was sufficient to initiate the subject

prosecution, and Vitti's contention is without merit. The

District Court did not abuse its discretion in denying Vitti's

motion to dismiss.

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(2) Vitti contends that the District Court abused its

discretion in sentencing him to a six-month jail term because the

court considered uncharged prior acts as an aggravating factor in

determining Vitti's sentence.

As noted by the parties, HRS § 706-606 (2014) sets

forth the sentencing factors that the District Court was required

to consider:

§ 706-606 Factors to be considered in imposing a
sentence. The court, in determining the particular sentence
to be imposed, shall consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the
defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide
just punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes
of the defendant; and

(d) To provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.

Vitti also points to State v. Nunes, 72 Haw. 521, 824

P.2d 837 (1992). In Nunes, the supreme court described the

circumstances of that case as follows: "In essence, the judge

imposed a sentence for uncharged crimes—either intimidating a

witness or tampering with a witness. In our minds this raises

serious constitutional questions." Id. at 526, 824 P.2d at 840.

The court then held, in relevant part:

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While a court has broad discretion in imposing a
sentence, and can consider the candor, conduct,
remorse and background of the defendant as well as the
circumstances of the crime and many other factors, a
judge cannot punish a defendant for an uncharged crime
in the belief that it too deserves punishment.

Id.

Here, the District Court found Vitti guilty of

Terroristic Threatening Second based on its finding that the

words Vitti spoke to CW on August 11, 2020, constituted

terroristic threatening.5 The District Court then asked: "As to

5
On direct examination, [CW] was asked to describe what happened
between him and Vitti on August 11, 2020. He testified:

A. Okay. I was in the back corner of my backyard, at
the back corner of my house, and I was watering my plants
which are along like the wall line of my house, and I heard
a door slam, and that was like the door on the back of Mr.
Vitti's house, and I looked up and he came onto his back
porch. And he looked directly at me and he made death
threats to me.

Q. Okay.

A. From his back porch.

. . . .

A. He said, "Die. Die. Die. Die, motherfucker.
I'm not going to take your shit anymore. I'm going to kill
you."

Q. Okay.

A. "Fuck."

Q. When -- when you heard that, what was your
reaction?

A. Oh. I was extremely alarmed. And I knew that he
meant it. And therefore I quickly walked around my house
with my watering jug and went back into my house. Well,
actually I saw my neighbor on the other side and for a
second I spoke to him and then I went in my house and I
called 911.

. . . .

Q. Okay. Let's see. And what -- did anything else
happen between you and the defendant on August 11, 2020?
(continued...)

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sentencing?" The State responded by asking to have CW address

the court at sentencing, which the court allowed. After being

directed to speak into a microphone, CW stated:
You know, I have to admit, sir, I'm not a person that
understands the dynamics of everything that goes on here.
But I do believe that a person should have to be accountable
for their actions, and this being the case, the way the
choices and behaviors that Mr. Vitti made towards my family,
they're -- they're severe. They had effects that, you know,
I'm not a person who's used to being threatened. I've gone
through life to make friends and to be kind. And it's a
situation where I'm feeling that if a person isn't held
accountable for the way that they harm other people that it
only encourages them to cause further harm.

And, you know, I -- also, in my heart I don't wish
this man to be harmed. I would hope that he is able to deal
with his aggression and to get a hold of his anger and to
somehow have a good life. Somehow. But even more so, I
need him to, you know, stay away from causing harm to people
and, in particular, my family and myself.

Vitti does not raise any challenge related to the

above. However, the District Court then questioned CW, after the

close of evidence and the determination of guilt, including the

following:
THE COURT: Okay. What happened on -- on the 12th?
What happened the day after this incident happened? With
you -- you were about to say something about August 12th on
the stand.

[CW]: August 12th?

THE COURT: Yes.

[CW]: Oh, I'm -- I'm sorry, I --

THE COURT: Did you mean August 2nd?

[CW]: I -- when we were talking earlier?

THE COURT: So -- so -- yes, so after you called the
police --

[CW]: After I called the police, sir?

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(...continued)

A. No, sir.

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THE COURT: Did you have any other interaction with
Mr. Vitti?

[CW]: No. He was taken into custody, sir.

THE COURT: I see. Okay. So -- so when you were
talking about him assaulting you, you were not talking about
after the -- the --

[CW]: That was --

THE COURT: -- incident?

[CW]: -- on August 2nd, sir.

The prosecutor then directed CW to his seat and said

that the State was asking for one year jail as the sentence.

Noting that one year was the maximum sentence allowed by law, the

District Court asked why the State was asking for one year. The

prosecutor responded:
[Prosecutor]: The State would argue the circumstances
of this case and the harm done to the victim in this case
are -- show more criminality than in similar cases.

Your honor, [CW] had to move his family because he was
so scared and there was a long period of disruptive behavior
before that. And -- he didn't want to come to court today.
He wanted the case continued to a Monday 'cause of his work
schedule, and I told him that means, you know, the defendant
will probably get released if we continue it to a date
that's convenient for you. So he said, no, he'll -- he'll
find a way to come today, on Thursday. So it's a serious
matter for him.

The District Court then replied: "But that doesn't

mean I should be imposing a year in jail because it's

inconvenient to [CW] to appear in court." The court repeatedly

asked why the case was deserving of the maximum punishment that

the law allows. After rejecting the prosecutor's responses, the

court said: "You can say to me whatever you know about this case

which -- which -- which you believe deserves a year in jail[,]"

followed by, "Tell me about why – why [CW] needed to get a -- a

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TRO[.]" The prosecutor responded that the TRO (temporary

restraining order) was based on an August 2, 2020 incident and

the court interjected, "I take it it's not the first incident

though?" The prosecutor responded that the other incidents were

not so serious, Vitti playing music too loud, driving too fast,

staring at [CW's] family in a way that was uncomfortable, and

then described an August 2nd incident involving Vitti "violently

pushing" at CW's gate, which was not charged in this case, but

which was the basis for a TRO. As the prosecutor continued to

describe the August 2nd incident, the District Court said, "I'm

going to ask [CW] to come back up . . ."

The State then asked CW to "tell the judge about the

August 2nd, 2020 incident[.]" CW's detailed response was

interspersed with multiple questions from the court about the

August 2, 2020 incident, with follow up questions from the court

about "did anything happen" between that day and the day of the

charged conduct.

No objection was made by defense counsel. Instead,

defense counsel pointed out that Vitti has no record of other

convictions, any other pending cases were dismissed, that Vitti

was not a "good fit" for that neighborhood, and asked that Vitti

be sentenced to a term of probation with credit for the time he

already served. Vitti declined to make a statement.

The court then asked the prosecutor about the cases

that were dismissed, whether the State was intending to refile

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them (not likely), the nature of the charges (disorderlies,

harassment), and when they occurred (late 2020, early 2021). The

court asked defense counsel about what Vitti would do if released

(work construction, good friend support system).

The District Court then sentenced Vitti as follows:
THE COURT: Okay. Well, you know what? This -- this
is what I'm struggling with, right? I can sentence Mr.
Vitti to a jail term today and he can be released with -- I
-- if I give him the full year in jail, he will serve the
year, the full year with credit for time served, but when he
is released there is no supervision. There will be no
requirement for him to avail himself of anger management
classes, substance abuse monitoring, and the like. He would
just be released. And he may be harboring more anger
because of the incarceration.

You know, I -- I don't take [CW's] statements lightly.
So that -- that's what -- but the court also doesn't want to
put someone on probation if he's not going to -- he's just
not going to show up for his probation. But -- but I am
concerned. I'm concerned that if he serves the full year in
jail without any rehabilitation he -- he would just be
punished without any hope of -- of perhaps understanding why
he -- he did what he did and how -- how to get better. And
so this is what I'll do.

I'll sentence -- Mr. Vitti, please stand.

. . . .

. . . I'm going to sentence you to six months in jail,
okay, and one year on probation. And as a special condition
of -- the mandatory conditions will be you -- you are not to
commit another federal or state crime or engage in criminal
conduct in any foreign jurisdiction under -- or under
military jurisdiction that would constitute a crime under
Hawaii law.

And you -- you will report to a probation officer as
directed by the court or the probation officer;

that you remain within this jurisdiction -- the
jurisdiction of the court unless granted permission to leave
by the court or a probation officer;

that you notify your probation officer prior to any
change of address or employment;

that you notify a probation officer promptly if
arrested or questioned by a law enforcement officer;

that you permit your probation officer to visit you at
your home or elsewhere as specified by the court; and that

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you make restitution for any losses suffered by the victim,
if the court has ordered restitution.

I'm not going to order any restitution.

As far as discretionary conditions, it will be to
serve a jail term of six months.

Another discretionary condition is to stay away from
[CW] or any member of his family.

Refrain from the use of alcohol or any narcotic drugs
or controlled substances without a prescription.

Refrain from possessing a firearm, ammunition,
destructive device, or other dangerous weapon.

Undergo a mental health assessment and treatment,
including the assessment and treatment for substance abuse
dependency and remain in a specified facility if required
for that purpose.

And the final one would be to seek and maintain -- I'm
sorry, successfully complete the anger management program as
directed by your probation officer.

Vitti argues that, while the District Court may have

considered the HRS § 706-606 factors, it erred and acted

unconstitutionally in considering, inter alia, the uncharged,

alleged incident on August 2, 2020, recalling CW to testify about

the uncharged, alleged incident, in effect acting as an advocate

on behalf of the State after the State allegedly failed to

deliver a satisfactory justification for imposing a sentence of

imprisonment. The State argues, inter alia, that Vitti waived

these arguments by failing to raise them in the trial court, that

a victim has a right to be heard concerning the defendant's

disposition before a sentence is imposed, and that it was

permissible for the District Court to use prior conduct for the

purpose of establishing propensity of dangerousness in the

future.

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We conclude that the District Court plainly erred and

abused its discretion in its sentencing of Vitti when it not only

permitted CW to make a statement, but also extensively questioned

the prosecutor and CW about prior incidents, further incidents,

dismissed charges, and possible uncharged incidents. The

District Court went beyond the permissible bounds of evaluating

applicable sentencing factors when it conducted further

examination of the complaining witness in this manner after the

close of evidence. While an explanation of sentencing factors

considered is not required in every instance, here, the District

Court gave no explanation of the extent of its own post-trial

inquiry into uncharged conduct and stated no limitation of its

consideration of the further statements elicited by the court

from CW and the prosecutor. As stated in Nunes:
[w]hile a court has broad discretion in imposing
a sentence, and can consider the candor, conduct,
remorse and background of the defendant as well as the
circumstances of the crime and many other factors, a
judge cannot punish a defendant for an uncharged crime
in the belief that it too deserves punishment.

72 Haw. at 526, 824 P.2d at 840.

We further conclude that the District Court's

impermissible reliance on uncharged conduct as a basis for its

sentence was unconstitutional and requires that Vitti's sentence

be vacated and this case be remanded for resentencing.

For these reasons, the District Court's March 17, 2022

Judgment is affirmed in part and vacated in part. The District

Court's conviction of Vitti for Terroristic Threatening Second is

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affirmed. Vitti's sentence is vacated, and this case is remanded

for resentencing before another judge.

DATED: Honolulu, Hawai#i, July 26, 2023.

On the briefs:
/s/ Katherine G. Leonard
Rachel K.X. Murakami, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Brian Vincent,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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