No. SCWC-13-0000401, Thursday, February 5, 2015, 10 a.m.

STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. SCOTT A. ABREGANO, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

James S. Tabe, Deputy Public Defender

Attorney for Respondent:

Loren J. Thomas, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 12/11/14.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/defendant-appellant Scott Abregano timely filed an application for a writ of certiorari, seeking review of the Intermediate Court of Appeal’s judgment, entered pursuant its Summary Disposition Order. The ICA’s judgment affirmed the Family Court of the First Circuit’s (family court) Judgment of Conviction and Sentence, which convicted Abregano of one count of violation of a protective order, in violation of HRS § 586-11.

The state alleged that Abregano violated the protective order by attending a softball game at his daughter’s school. When Abregano’s trial was due to start, the family court continued the trial for four weeks due to the presiding judge’s illness. Abregano’s trial thus started more than six months after his arrest. Abregano moved to have his case dismissed on the grounds the delay violated Hawai`i Rules of Penal Procedure (HRPP) Rule 48 and the reason for the delay did not fall into the “good cause” exclusion under HRPP Rule 48(c)(8). The family court denied Abregano’s motion.

At trial, during the prosecution’s examination of Abregano’s wife (the complaining witness), the family court judge informed the prosecutor that the testimony the prosecutor was attempting to elicit — that the judge who issued the protective order had explained to Abregano who was covered by the order — was already in evidence on page 1 of the protective order. Abregano moved for a mistrial because, he argued, the judge’s comments, made in the presence of the jury, negated one of his defenses — that his daughter was not covered by the protective order to the same extent as his wife.

Following the jury’s guilty verdict, Abregano moved for a new trial. In support of his motion, Abregano requested to have one of the jurors testify that the judge’s comments had influenced the juror’s decision. The family court denied Abregano’s request to allow the juror to testify, and denied the motion.

In his application, Abregano raises the following questions: (1) whether the family court erred in finding that the judge’s illness was good cause under HRPP Rule 48 and denying Abregano’s motion to dismiss; (2) whether the family court erred when it referred the prosecutor to the protective order; and (3) whether the family court abused its discretion when it denied Abregano’s request to have a juror testify regarding whether the judge’s comments influenced the juror’s decision.