No. SCWC-12-0000115, Thursday, May 14, 2015, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. JOSEPH VAIMILI, Petitioner/Defendant-Appellant.

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

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Jeffrey A. Hawk

Attorney for Respondent:

James M. Anderson, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 02/20/15.

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

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Brief Description:

At issue in this case is the constitutional right of a criminal defendant to be present for trial. This case arises from Petitioner/Defendant-Appellant Joseph Vaimili’s (Vaimili) convictions for sex trafficking related crimes. In brief summary, Vaimili was present in court through jury selection; however, he failed to appear for trial two days later despite being instructed to do so. The trial was continued two times over the course of one month to permit Vaimili to appear pursuant to a bench warrant; first for five days, at which time the circuit court found that Vaimili had voluntarily absented himself from the proceedings, and again for twenty-one days, after which the circuit court conducted trial in his absence. Vaimili was found guilty by jury on all counts. He was subsequently apprehended in Texas over a year later, and was returned to Hawai`i for sentencing. The ICA affirmed his convictions.

Vaimili challenges the State’s pleading of the charges against him in the disjunctive and the circuit court’s conducting trial in his absence, presenting four issues on certiorari. First, Vaimili argues that the ICA erred when it held that the charges against him were fatally defective where they were phrased in the disjunctive. He contends that each disjunctive charge supported four distinct and separate acts that could have supported his conviction, and therefore failed to provide due process and notice of the specific acts for which he was being charged in order to allow him to prepare his defense.

Second, Vaimili argues that the ICA erred when it held that his trial counsel was not ineffective for failing to object to the disjunctive charging language and moving to dismiss the complaint.

Third, Vaimili argues that the ICA erred when it held that “trial commences” for purposes of Hawai`i Rules of Penal Procedure Rule 43 when jury selection begins rather than when jeopardy attaches, i.e., the jury is sworn, which is his position. He argues that at the time the circuit court found that he had voluntarily absented himself, no substantive event had occurred. He therefore contends that the ICA erred when it held that he had voluntarily waived his right to be present because he did not voluntarily absent himself after the jury had been sworn in.

Fourth, Vaimili argues that the ICA erred when it held that the circuit court did not violate his constitutional right to be present where it held the trial in his absence without showing that he had voluntarily absented himself from the proceedings. Vaimili argues that (1) the State failed to sustain its burden to establish that his absence was voluntary and not a result of circumstances beyond his control, (2) the violation of his right to be present was not harmless beyond a reasonable doubt, and (3) the circuit court abused its discretion when it decided to conduct the entire trial in his absence.