NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-23-0000315

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

MALIONI KALONI, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CASE NO. 2CPC-21-0000667(1))

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting Chief Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Malioni Kaloni (Kaloni) appeals

from the March 29, 2023 Amended Judgment; Conviction and

Sentence; Notice of Entry (Amended Judgment)

1 entered by the

Circuit Court of the Second Circuit (Circuit Court)

2 in favor of

Plaintiff-Appellee the State of Hawai#i (State). On December 9,

2022, Kaloni was convicted of Promoting a Dangerous Drug in the

Third Degree (Count I), in violation of Hawaii Revised Statutes

1 The Amended Judgment was superceded by a May 4, 2023 Second

Amended Judgment; Conviction and Sentence; Notice of Entry (Second Amended

Judgment). The Second Amended Judgment corrects a typo in Kaloni's first

name. 

2 The Honorable Kirstin M. Hamman presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-23-0000315

28-FEB-2024

08:21 AM

Dkt. 72 SO
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(HRS) § 712-1243(1) (2014).3 The Circuit Court sentenced Kaloni

to five (5) years imprisonment, with credit for time served. 

Kaloni raises three points of error on appeal,

contending that the Circuit Court erred in: (1) failing to

strike Maui Police Department (MPD) crime laboratory (MPD Lab)

criminalist Amber Corpuz's (Corpuz's) testimony because the State

failed to provide the Gas Chromatograph/Mass Spectrometer (GC/MS)

manual(s) and MPD Lab standard operating procedures (SOPs)

pursuant to Hawai#i Rules of Evidence (HRE) Rule 705; (2)

admitting the GC/MS test results without proper foundation;4 and

(3) proceeding with Kaloni's jury trial in absentia.

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 Kaloni's points of error as follows:

(1) We begin with Kaloni's argument that his

constitutional rights were violated when the Circuit Court

proceeded with the jury trial in absentia. Kaloni argues that

the Circuit Court should not have continued the jury trial in 

3 HRS § 712-1243(1) states:

§ 712-1243 Promoting a dangerous drug in the third

degree. (1) A person commits the offense of promoting a

dangerous drug in the third degree if the person knowingly

possesses any dangerous drug in any amount.

4 Kaloni asserts this error should result in Kaloni's conviction be

reversed for insufficient evidence.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

absentia, under Hawai#i Rules of Penal Procedure (HRPP) Rule 43,5

without either an attempt to obtain his presence via a short

continuance or a colloquy to ensure knowing waiver of his

fundamental constitutional rights. 

"[A] [d]efendant's right to be present at all stages

of his [or her] trial is of fundamental importance and is

derived from the confrontation clause of the Fifth Amendment

to the United States Constitution and made applicable to the

states by the due process clause of the Fourteenth

Amendment." 

State v. Vaimili, 135 Hawai#i 492, 501, 353 P.3d 1034, 1043

(2015) (citation omitted). HRPP Rule 43 codifies a defendant's

constitutional right to be present at trial, as well as

exceptions to the defendant's continued presence. Id. When a

defendant has not expressly requested and been granted permission

to leave an on-going trial, but is otherwise voluntarily absent,

the trial court must engage in the balancing test outlined in

State v. Okumura, 58 Haw. 425, 570 P.2d 848 (1977), before

proceeding with trial. Vaimili, 135 Hawai#i at 503, 353 P.3d at

5 HRPP Rule 43 states, in pertinent part:

Rule 43. PRESENCE OF THE DEFENDANT.

(a) Presence required. The defendant shall be

present at the arraignment, at the time of the plea, at

evidentiary pretrial hearings, at every stage of the trial

including the impaneling of the jury and the return of the

verdict, and at the imposition of sentence, except as

otherwise provided by this Rule.

(b) Continued presence not required. The further

progress of a pretrial evidentiary hearing or of the trial

to and including the return of the verdict shall not be

prevented and the defendant shall be considered to have

waived the right to be present whenever a defendant,

initially present,

(1) is voluntarily absent after the hearing or trial

has commenced (whether or not the defendant has been

informed by the court of the obligation to remain during the

trial); or

(2) engages in conduct which is such as to justify

exclusion from the courtroom.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

1045. A defendant's right to confront his accusers is balanced

against the following factors:

(1) the time and expense caused by [a] defendant's efforts

to defeat the proceedings by his departure or flight; (2)

the likelihood that the trial could soon take place with the

defendant present; (3) the difficulty of rescheduling; (4)

the inconvenience to jurors; and (5) harm to the State's

case. 

Id. (citations and internal quotation marks omitted); see also

Okumura, 58 Haw. at 429-30, 570 P.2d at 852-53. However, the

narrow discretion given to the trial judge to proceed with the

trial should be exercised only when the public interest clearly

outweighs that of the absent defendant. Okumura, 58 Haw. at 430,

570 P.2d at 852. 

In Okumura, the supreme court stated that "[t]he

voluntary absence provision of Rule 43 generally applies in the

case of a defendant who has in fact escaped or absconded, and

does not apply to a defendant who is in custody." 58 Haw. at

428, 570 P.2d at 851 (citing Cross v. United States, 117

U.S.App.D.C. 56, 325 F.2d 629 (D.C. Cir. 1963)) (emphasis added).

 In Cross, the defendant was in custody and refused to return to

the courtroom, and the court of appeals rejected the government's

argument that the defendant had voluntarily absented himself from

trial because the defendant was in custody and the voluntary

absence provision was deemed not to apply. Id. at 428, 570 P.2d

at 851-52 (emphasis added). However, in Matias v. State, a

majority of the supreme court found that a defendant did

voluntarily waive her right to be present at trial when 

[a]ppellee's trial counsel reported to the court that

[appellee] refused to return to the courtroom, and [counsel]

brought with him the matron in charge of the holding cell,

who confirmed, in explicit terms, that that was the

situation. The appellee refused to come out of the holding

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

cell and talk to the attorney, and [appellee] informed the

matron that [appellee] was not going to return to the court

that, or any other, day.

73 Haw. 147, 150, 828 P.2d 281, 283 (1992) (emphasis added). 

Here, the record indicates that the only information

known about Kaloni's absence was that the "MCCC [has] informed

[the court] that Mr. Kaloni has refused to leave his cell, and

any attempt that [MCCC] make[s] to take him out of his cell, he

fights with them. So he's refusing to come to court for his

trial." Kaloni's attorney expressed his surprise, and indicated

that he made an attempt to get in touch with Kaloni, but he was

unable to do so. The Circuit Court did not expressly say it was

conducting the Okumura factor test, but the court did discuss the

difficulty of rescheduling and the inconvenience to the jurors. 

The court stated that if the trial went into the following week

it appeared that at least one juror (possibly more) would be lost

due to travel plans. The Circuit Court found that pursuant to

HRPP Rule 43(b), Kaloni voluntarily absented himself from the

trial after it commenced, and therefore, Kaloni waived the right

to be present. It appears from the record that the third and

fourth Okumura factors support the decision to proceed with trial

in Kaloni's absence. 

However, we cannot conclude that the public interest

here "clearly outweighs" the interests of Kaloni. Even if the

trial did need to go into the following week, there was at least

one alternate juror available to replace the one known departing

juror, and the court did not confirm whether or not it would lose

jurors. Second, the State did not present any indication that

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

their case would be prejudiced by a delay, meaning the fifth

Okumura factor does not weigh in favor of a trial in absentia. 

And third, and most important, the court did not assess "the

likelihood that the trial could soon take place with the

defendant present" or attempt to gather sufficient information to

determine that Kaloni waived his right to be present at trial. 

The court simply accepted the report that Kaloni was refusing to

come to court at face value, without any further inquiry or

assessment. 

There is no evidence showing that the trial could not

have been delayed until such a time as Kaloni could have been

brought back into court, as there was no action taken by the

court to determine why Kaloni was refusing to be present. See

Okumura, 58 Haw. at 430, 570 P.2d at 852. Unlike Matias, the

sheriff or guard in charge of the holding cell did not come into

the court to testify regarding Kaloni's situation, nor did Kaloni

relay that he would never return to court. In fact, Kaloni was

in court the following day. At a minimum, the court could have

delayed the trial long enough to allow counsel for Kaloni time to

contact him. That did not occur. Cross and Okumura tell us that

Rule 43 generally does not apply to a defendant who is in

custody, and because the factual record such as the one developed

in Matias is not present, we conclude that the Circuit Court

abused its discretion in conducting the jury trial in absentia

under the circumstances. See Okamura, 58 Haw. at 428, 570 P.2d

at 851-52. Thus, the judgment of conviction is vacated, and this

case remanded for a new trial. See id. at 430, 570 P.2d at 853.

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

However, Kaloni further contends that there is

insufficient evidence to support a conviction. Because the

double jeopardy clause bars retrial of a defendant if there is an

insufficiency of evidence, we will review Kaloni's other points

of error. See State v. Kaulia, 128 Hawai#i 479, 496, 291 P.3d

377, 394 (2013).

(2) Kaloni argues that the test results from the GC/MS

are not reliable because (1) no scientific principle for the

GC/MS was identified, and (2) foundation showing that the GC/MS

was in proper working order was lacking. Kaloni asserts that

because the GC/MS results lacked foundation, there is

insufficient evidence to convict him. However, Kaloni's point of

error is not in compliance with Hawai#i Rules of Appellate

Procedure (HRAP) Rule 28(b)(4). HRAP Rule 28(b)(4) requires each

point of error to include "where in the record the alleged error

occurred[,]" and "where in the record the alleged error was

objected to or the manner in which the alleged error was brought

to the attention of the court or agency." Here, Kaloni does not

show where the alleged error occurred, or where the alleged error

was objected to.

HRAP Rule 28(b)(4) states that "[p]oints not in

compliance with this section shall be disregarded, except that

the appellate court, at its option, may notice a plain error not

presented." We decline to search the record and review for plain

error as to foundational issues. See generally State v. Long, 98

Hawai#i 348, 353, 48 P.3d 595, 600 (2002) (affirming that "a

'lack of foundation' objection generally is insufficient to

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

preserve foundational issues for appeal because such an objection

does not advise the trial court of the problems with the

foundation"); see also State v. Valente, CAAP-22-0000280, 2023 WL

3055611, *3 (Haw. App. April 24, 2023) (SDO) (declining to

address point of error where appellant failed to state where in

the record the alleged error occurred and where the alleged error

was brought to the attention of the trial court).

(3) Kaloni argues that the Circuit Court erred in

allowing Corpuz to testify after the State failed to provide

Kaloni with the GC/MS manual and MPD Lab's SOPs in discovery

pursuant to HRE Rule 705, because Corpuz's work with the GC/MS

that led to her opinion that the substance in question was

methamphetamine was based on the GC/MS manual and/or the MPD

Lab's procedures. HRE Rules 703 and 705 provide:

HRE Rule 703. Bases of opinion testimony by experts.

The facts or data in the particular case upon which an

expert bases an opinion or inference may be those perceived

by or made known to the expert at or before the hearing. If

of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences upon the

subject, the facts or data need not be admissible in

evidence. The court may, however, disallow testimony in the

form of an opinion or inference if the underlying facts or

data indicate lack of trustworthiness.

HRE Rule 705. Disclosure of facts or data underlying

expert opinion.

The expert may testify in terms of opinion or

inference and give the expert's reasons therefor without

disclosing the underlying facts or data if the underlying

facts or data have been disclosed in discovery proceedings. 

The expert may in any event be required to disclose the

underlying facts or data on cross-examination.

HRE Rule 705 allows an expert to give their opinion so

long as the "underlying facts or data" are provided. An example

of how this works is set forth in a recent Hawai#i Supreme Court

opinion, State v. Moon, 152 Hawai#i 195, 209-10, 524 P.3d 1219,

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

1233-34 (2023). In Moon, the defendant sought to strike an

expert's opinion testimony concerning the victim's cause of

death, arguing that medical records underlying the expert's

opinion were facts or data underlying the expert's opinion and

they were not produced. Id. at 203, 524 P.3d at 1227. The

supreme court explained, however, that the underlying facts or

data were disclosed in the form of the autopsy report, which

included all the relevant data, so the medical records did not

need to be separately produced. Id. at 209-10, 524 P.2d at 1233-

34. 

Here, the underlying facts or data supporting Corpuz's

opinion that the evidence in question contained methamphetamine

were the reported results of the series of tests performed by

Corpuz. Kaloni does not argue that in the reported test results

the State failed to disclose all relevant information that Corpuz

gleaned from the tests (or otherwise). We conclude that there

was no violation of HRE Rule 705 here, and the Circuit Court did

not err in denying Kaloni's motion to strike.

For the reasons set forth above, the Circuit Court's

May 4, 2023 Second Amended Judgment is vacated, and this case is

remanded to the Circuit Court for a new trial.

DATED: Honolulu, Hawai#i, February 28, 2024.

On the briefs: /s/ Katherine G. Leonard

Acting Chief Judge

Phyllis J. Hironaka,

Deputy Public Defender, /s/ Sonja M.P. McCullen

for Defendant-Appellant. Associate Judge

Richard B. Rost, /s/ Kimberly T. Guidry

Deputy Prosecuting Attorney, Associate Judge

County of Maui,

for Plaintiff-Appellee.

9