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Oral Argument Before the Hawaii Supreme Court

No. SCWC-13-0003039, Thursday, July 21, 2016, 10 a.m.

STATE OF HAWAIʻI, Petitioner/Plaintiff-Appellee, vs. VICENTE KOTEKAPIKA HILARIO, Respondent/Defendant-Appellant.

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

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

Attorney for Petitioner:

Tracy Murakami, Deputy Prosecuting Attorney

Attorney for Respondent:

Keith S. Shigetomi

NOTE: Order accepting Application for Writ of Certiorari, filed 06/01/16.


[ Listen to the entire audio recording in mp3 format ]

Brief Description:

After a jury found Respondent/Defendant-Appellant Vicente Kotekapika Hilario (“Hilario”) guilty of Murder in the First Degree in violation of Hawaiʻi Revised Statutes § 707-701(1)(c) (2014), among other counts related to the December 17, 2010 shooting death of Aureo Moore, the Circuit Court of the Fifth Circuit (“circuit court”) entered a “Judgment Guilty Conviction and Sentence” (“Judgment”) on July 25, 2013. Hilario timely appealed the Judgment to the Intermediate Court of Appeals (“ICA”), arguing, among other things, that the circuit court erred when it denied his Motion to Dismiss based on Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 48 (“Rule 48”).

Rule 48 states:

Except in the case of traffic offenses that are not punishable by imprisonment, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months . . . from the date of arrest if bail is set or from the filing of the charge, whichever is sooner, on any offense based on the same conduct or arising from the same criminal episode for which the arrest or charge was made[.]

HRPP Rule 48(b)(1). According to Hilario, even when considering permissible “excluded periods,” the delay of his trial to January 7, 2013 after his initial arrest on December 17, 2010, caused a violation of Rule 48.

A majority of the judges on the ICA panel agreed, determining that the time limitation imposed by Rule 48 was exceeded after the circuit court erroneously ruled that certain proffered witness testimony was alibi evidence, necessitating disclosures pursuant to HRPP Rule 12.1, which delayed trial. One judge dissented, stating that the relevant trial delay was caused by Hilario’s decision to file a Notice of Alibi, and not any error of the circuit court.

On April 21, 2016, Petitioner/Plaintiff-Appellee State of Hawaiʻi timely applied for writ of certiorari, presenting two questions:

[1]) Whether the ICA gravely erred by rejecting the trial court’s determination that a witness might give alibi testimony, where he was expected to testify that he was present at the shooting, and could have reasonably testified as to the defendant’s whereabouts nearby.

[2]) Even assuming that the ICA correctly determined that a percipient witness can never be deemed an alibi witness, the ICA nevertheless gravely erred by failing to determine whether the trial court abused its discretion in continuing the trial, charging the delay to the defense, due to the parties’ anticipated alibi disclosures, and outstanding unrelated discovery.