FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-AUG-2026
07:47 AM
Dkt. 79 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---oOo---STATE OF HAWAI#I, Plaintiff-Appellee, v.
BEAU HAWKES, Defendant-Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
August 7, 2026
HIRAOKA, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
A grand jury indicted Beau Hawkes on two counts of
assault in the second degree and one count of terroristic
threatening in the first degree. Hawkes moved to dismiss the
indictment because of grand jury counsel misconduct. The Circuit
Court of the Second Circuit granted the motion and entered an
order dismissing the indictment without prejudice.1 Hawkes
appeals, arguing "the trial court failed to engage in any type of
1
The Honorable Kelsey T. Kawano presided.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
analysis as to whether or not the dismissal should have been with
or without prejudice."2
We hold that Hawaii Revised Statutes (HRS) § 612-59
(2016) calls for dismissal of an indictment without prejudice if
a court, exercising its discretion, determines that grand jury
counsel misconduct affected the fairness and impartiality of the
proceeding by tending to induce action other than what reasonable
grand jurors would deem warranted based on the evidence fairly
presented to them. The legislative history confirms that
dismissal with prejudice is not an option.
I. STANDARD OF REVIEW
Statutory interpretation is a question of law reviewed
de novo. In re Maui Fire Cases, 155 Hawai#i 409, 424, 565 P.3d
754, 769 (2025). The fundamental starting point is the language
of the statute; where it is plain and unambiguous, we must give
effect to its plain meaning. Id.
2
The day before Hawkes's motion to dismiss for grand jury counsel misconduct was heard, Hawkes filed another motion to dismiss, for prosecutorial misconduct. During the hearing on the first motion to dismiss, the circuit court said the motion was granted and told Hawkes he was free to go. Hawkes asked if the dismissal was with prejudice. The court stated it was without prejudice. Hawkes orally moved to withdraw the motion and have his second motion heard. The court orally denied the oral motion. Hawkes challenges the denial, but an oral order is not appealable. State v. Bohannon, 102 Hawai#i 228, 235, 74 P.3d 980, 987 (2003). At any rate, the grant of the first motion rendered the second motion, and any prosecutorial misconduct, moot.
Hawkes also moved for reconsideration of the dismissal without prejudice "pursuant to Rule 60(b) and Rule 59(e) of the Hawaii Rules of Civil Procedure." The court orally denied the motion. Hawkes challenges the denial. The Hawai#i Rules of Civil Procedure (HRCP) do not apply to criminal cases. HRCP Rule 1(a). The Hawai#i Rules of Penal Procedure do not provide for a motion for reconsideration. We decline to consider Hawkes's appeal from the oral denial of an inappropriate motion.
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If statutory language is unambiguous, we need not
examine legislative history. Barker v. Young, 153 Hawai#i 144,
149, 528 P.3d 217, 222 (2023). But:
The legislative history of a statute remains relevant even
when the language appears clear upon perfunctory review.
Were this not the case, a court may be unable to adequately
discern the underlying policy which the legislature seeks to
promulgate and, thus, would be unable to determine if a
literal construction would produce an absurd or unjust
result, inconsistent with the policies of the statute.
Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439, 452, 420 P.3d
370, 383 (2018) (cleaned up).
II. DISCUSSION
HRS § 612-57 (2016) establishes grand jury counsel's
duties:
The grand jury counsel shall serve, upon request of the
grand jury, as independent legal counsel to the grand jury,
to be at the call of the grand jury during its proceedings
in obtaining appropriate advice on matters of law after the
grand jury has been sworn and charged by the court under
section 612-16(d) and during the court's absence. The grand
jury counsel may be present during grand jury proceedings,
and if not present in the building shall be in the immediate
vicinity to the building in which the grand jury meets, so
that counsel will be readily available to the grand jury,
but shall not participate in the questioning of the
witnesses or the prosecution. The grand jury counsel's
function shall be only to receive inquiries on matters of
law sought by the grand jury, conduct legal research, and
provide appropriate answers of law.
"Grand jury counsel misconduct," like "prosecutorial
misconduct," is a legal term of art referring to any improper
action committed by grand jury counsel, however harmless or
unintentional. Cf. State v. Brown, 157 Hawai#i 354, 381, 577
P.3d 1045, 1072 (2025) (concerning prosecutorial misconduct).
A court may dismiss an indictment if it finds that
grand jury counsel misconduct "tended to induce action other than
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that which reasonable grand jurors, in their uninfluenced
judgment, would deem warranted based on the evidence fairly
presented to them." State v. Griffin, 126 Hawai#i 40, 53, 266
P.3d 448, 461 (App. 2011), abrogated on other grounds by, State
v. Kato, 147 Hawai#i 478, 465 P.3d 925 (2020).
The State does not argue there was no grand jury
counsel misconduct, or that Hawkes's indictment should not have
been dismissed. The issue presented by this appeal is whether
the trial court erred by not analyzing whether the dismissal
should be with, rather than without, prejudice. We didn't reach
that issue in Griffin because we affirmed the circuit court's
denial of the motion to dismiss the indictment. Id. at 53-54,
266 P.3d at 461-62.
A. HRS § 612-59 calls for dismissal without
prejudice if a court determines that grand
jury counsel misconduct affected the fairness
and impartiality of the proceeding.
HRS § 612-59 provides:
Any indictment which is based upon a grand jury proceeding
in which a violation of section 612-56 [(grand jury counsel;
disqualification)], 612-57 [(grand jury counsel; duties)],
or 612-58 [(grand jury proceedings)], has occurred may be
subject to dismissal without prejudice by an appropriate
state court in the exercise of its discretion. Motion for
such dismissal may be made by either party or the court.
(Emphasis added.)
We note at the outset that grand jury counsel
misconduct — for example, incorrectly instructing the grand jury
on matters of law — could adversely affect the interests of the
State as well as those of the defendant.
Under the plain language of HRS § 612-59, if grand jury
counsel misconduct is shown, a court has discretion to dismiss
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the indictment without prejudice. Griffin, 126 Hawai#i at 52–53,
266 P.3d at 460–61. The court also has discretion to not dismiss
the indictment if, for example, it determines grand jury counsel
misconduct did not affect the "fairness or impartiality" of the
grand jury proceeding. See id.
Hawkes argues that the permissive "may" in HRS § 612-59
means an indictment may be dismissed with prejudice. We do not
agree. The phrase "may be subject to dismissal without
prejudice" means an indictment should not automatically be
dismissed if grand jury counsel misconduct is shown; rather the
court has discretion to dismiss the indictment if it determines
the misconduct affected the fairness or impartiality of the grand
jury proceeding by tending to induce action other than what
reasonable grand jurors would deem warranted based on the
evidence fairly presented to them. But the indictment need not
be dismissed if the court determines the misconduct did not
affect the fairness or impartiality of the proceeding.
"[I]t is generally presumed that the legislature acts
intentionally and purposely in the disparate inclusion or
exclusion of terms in its statutes." Maui Fire Cases, 155
Hawai#i at 428, 565 P.3d at 773. HRS § 612-59 does not say
"dismissal with or without prejudice," or simply "dismissal by an
appropriate state court." Because grand jury counsel misconduct
does not implicate the prosecution, and jeopardy has not
attached,3 dismissal without prejudice of a potentially defective
3
Article I, section 10 of the Hawai#i Constitution provides that no person shall be "subject for the same offense to be twice put in jeopardy[.]" "Attachment of jeopardy in a jury trial occurs when the jury is empaneled and sworn in, but in a bench trial . . . jeopardy attaches when the court begins to hear evidence." State v. Ellway, 158 Hawai #i 190, 196, 590 P.3d 319, 325 (2026).
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indictment is an appropriate remedy for both the State and the
defendant who is the subject of the grand jury proceeding.
B. HRS § 612-59 is consistent with HRS § 612-60.
Statutes that are in pari materia may be construed
together. Omiya, 142 Hawai#i at 450, 420 P.3d at 381. "Laws in
pari materia, or upon the same subject matter, shall be construed
with reference to each other. What is clear in one statute may
be called in aid to explain what is doubtful in another." HRS
§ 1-16 (2009).
Our reading of HRS § 612-59 is consistent with the
remedy provided by HRS § 612-60 (2016), which provides:
If the court finds that the grand jury counsel has provided
the grand jury erroneous counsel or has acted improperly,
the court may require that the grand jury be given the
corrected advice or shall be advised as to improper action,
and shall then continue the case.
HRS § 612-60 applies, and allows remedial action by the
court, if grand jury counsel misconduct comes to the court's
attention during the grand jury proceeding. HRS § 612-59 applies
if grand jury counsel misconduct is shown post-indictment. The
prosecution is not terminated under either statute.
C. The legislative history of HRS § 612-59
confirms that dismissal with prejudice is not
an option.
HRS §§ 612-51 through -59 were enacted to implement
article I, section 11 of the Hawai#i Constitution. See 1980 Haw.
Sess. Laws Act 209, § 1 at 354. Hawai#i Constitution article I,
section 11 was proposed by the 1978 Constitutional Convention and
ratified by the voters on November 7, 1978. It provides:
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Whenever a grand jury is impaneled, there shall be an
independent counsel appointed as provided by law to advise
the members of the grand jury regarding matters brought
before it. Independent counsel shall be selected from among
those persons licensed to practice law by the supreme court
of the State and shall not be a public employee. The term
and compensation for independent counsel shall be as
provided by law.
The Constitutional Convention's Committee on Bill of
Rights, Suffrage and Elections explained:
The role of counsel will be to advise the grand jury
and not the witness or the prosecutor. Until now the
prosecutor has served as the legal adviser to the grand
jury, but there seems to be a conflict between presenting
evidence to a grand jury in the hope that they will return
an indictment and being their legal advisor. Independent
legal counsel will be available to advise the grand jury on
any appropriate matter.
Stand. Comm. Rep. No. 69, in 1 Proceedings of the Constitutional
Convention of Hawai#i of 1978, at 673 (1980).
After Hawai#i Constitution article I, section 11 was
ratified, 1979 House Bill No. 95 was proposed as enabling
legislation. The conference committee reported:
Your Committee's staff consulted the representative
from the prosecutor's office, City and County of Honolulu,
who was in attendance observing the conference, and was
assured that matters pertaining to grand jury proceedings
are handled by the courts as matters required to be
addressed as pre-trial issues, and that as such, there would
be no danger of violations of such provisions resulting in
dismissal of an otherwise valid indictment which would be
barred from re-indictment by the theory of "double
jeopardy." Nonetheless, in abundance of caution, your
Committee amended the former draft to require that such
dismissal shall be "without prejudice."
Conf. Comm. Rep. No. 68, in 1979 Senate Journal, at 985, 1979
House Journal, at 1120.
1979 H.B. No. 95, H.D. 2, S.D. 2, C.D. 1 was passed by
the legislature but vetoed by the governor, who was concerned
about use of the undefined word "advise" to describe grand jury
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counsel's duties. Gov. Msg. No. 512, "Statement of Objections to
House Bill No. 95," in 1979 Senate Journal, at 898-99. It was
amended to address the governor's concerns over the previous bill
and reintroduced during the 1980 legislative session as House
Bill No. 2059-80. The governor had not expressed concern about
the "dismissal without prejudice" language, which remained in
H.B. No. 2059-80. H.B. No. 2059-80 was passed by the
legislature, and approved by the governor on June 6, 1980. 1980
Haw. Sess. Laws Act 209, at 357. HRS § 612-59 has not been
amended since. The legislative history confirms that dismissal
without prejudice was intended, and dismissal with prejudice was
not an option.
III. CONCLUSION
If a court dismisses an indictment under HRS § 612-59
because of grand jury counsel misconduct, the dismissal must be
without prejudice. The circuit court need not have considered a
dismissal with prejudice. The December 10, 2024 Order Granting
Motion to Dismiss Indictment is affirmed.
On the briefs:
/s/ Keith K. Hiraoka
Walter J. Rodby, Presiding Judge
for Defendant-Appellant
Beau Hawkes. /s/ Sonja M.P. McCullen
Associate Judge
Andrew H. Martin,
Richard B. Rost, /s/ Kimberly T. Guidry Department of the Associate Judge
Prosecuting Attorney,
County of Maui
for Plaintiff-Appellee
State of Hawai#i.
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