State v. Carter.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-MAR-2024
08:00 AM
Dkt. 49 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

---o0o---

STATE OF HAWAI‘I, Plaintiff-Appellee, v.
SAMUEL CARTER, aka Tony Johnson, Michael Carter, Tony Carter, and
"Chicago," Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)

MARCH 6, 2024

WADSWORTH, PRESIDING JUDGE, NAKASONE AND GUIDRY, JJ.

OPINION OF THE COURT BY NAKASONE, J.

Defendant-Appellant Samuel Carter (Carter), self-
represented,1 appeals from the September 1, 2023 "Order Denying

1 Carter was represented by court-appointed counsel until
September 11, 2023, when counsel was allowed to withdraw.
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Defendant's Motion for Supervised Release or, in the Alternative,
to Reduce Bail" (Order Denying Bail Reduction) filed by the
Circuit Court of the First Circuit (Circuit Court),2 in which the
Circuit Court denied Carter's request to reduce the $3,300,000.00
($3.3 million) bail amount.3
On appeal, Carter contends4 the Circuit Court erred by
setting "excessive bail" in the amount of $3.3 million, in
violation of the prohibition against excessive bail in the federal
and state constitutions;5 and erred by denying a reduction of bail

2 The Honorable Ronald G. Johnson presided.
3 Carter challenges the Circuit Court's January 31, 2023 and May 9,
2023 bail rulings pertaining to Carter's January 9, 2023 motion to set bail and
March 14, 2023 motion to reduce bail. At the time Carter filed his August 22,
2023 Notice of Appeal, the record contained no orders reflecting the disposition
of Carter's bail motions. After Carter filed the Notice of Appeal, the Circuit
Court entered the Order Denying Bail Reduction that included the bail rulings
Carter challenges on appeal. We address Carter's challenges in the context of
the September 1, 2023 Order Denying Bail Reduction, which is an appealable
order. See State v. Johnson, 96 Hawai‘i 462, 470 n.12, 32 P.3d 106, 114 n.12
(App. 2001) (explaining that orders appealable under the collateral order
exception in criminal cases include "denial of pretrial motions to reduce
bail"). The August 22, 2023 Notice of Appeal is "deemed to have been filed on
the date" of the September 1, 2023 Order Denying Bail Reduction. Hawai‘i Rules
of Appellate Procedure (HRAP) Rule 4(b)(4).
4 Carter's Opening Brief does not comply with HRAP Rule 28 in multiple
respects, and does not contain any record references. Despite non-compliance
with the HRAP, Carter's legal argument is discernible, and we endeavor to afford
"litigants the opportunity to have their cases heard on the merits, where
possible." Marvin v. Pflueger, 127 Hawai‘i 490, 496, 280 P.3d 88, 94 (2012)
(cleaned up); see Erum v. Llego, 147 Hawai‘i 368, 380-81, 465 P.3d 815, 827-28
(2020) (applying liberal review to pleadings by self-represented litigants "to
facilitate access to justice" and to afford opportunity for appellate review
despite non-compliance with court rules). While Carter did not provide
transcripts of the January 31, 2023 and May 9, 2023 hearings from which he
appeals pursuant to HRAP Rule 10(b)(1)(A), we are able to glean the necessary
background from court minutes, filings in the Circuit Court, and the procedural
history set forth in the Order Denying Bail Reduction.
5 Carter relies on the Eighth Amendment of the United States
Constitution, which states: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted."

While Carter cites Article I, "Section 9" of the Hawai‘i
Constitution, he quotes from Article I, Section 12, which is pertinent here;
this provision states: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel or unusual punishment inflicted. The court may

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to a "reasonable" amount of $100,000.00, in violation of Hawaii
Revised Statutes (HRS) § 804-9.6
We hold that after making findings to support a denial
of bail under subsections (b) and (d) of HRS § 804-3, the Circuit
Court abused its discretion by electing to set cash bail of $3.3
million instead, and by finding that such amount was reasonable,
in violation of HRS § 804-9.
I. BACKGROUND
August 30, 2022 initial bail status in Circuit Court was
"no bail"
On August 26, 2022, Carter was indicted by the
Plaintiff-Appellee State of Hawai‘i (State) for five counts:
Attempted Murder in the Second Degree in violation of HRS
§§ 705-500, 707-701.5, and 706-656 (Count One); Murder in the
Second Degree in violation of HRS §§ 707-701.5 and 706-656 (Count
Two); Ownership or Possession Prohibited of any Firearm or
Ammunition by a Person Convicted of Certain Crimes in violation of
HRS §§ 134-7(b) and (h) (Count Three); Carrying or Use of Firearm
in the Commission of a Separate Felony in violation of HRS
§ 134-21 (Count Four); and Carrying or Use of a Firearm in the
Commission of a Separate Felony in violation of HRS § 134-21

dispense with bail if reasonably satisfied that the defendant or witness will
appear when directed, except for a defendant charged with an offense punishable
by life imprisonment."
6 Carter quotes from HRS "§ 709-9," which is the predecessor version
of the current statute, HRS § 804-9. HRS § 804-9 (2014 & 2022 Supp.), entitled
"Amount," provides:

The amount of bail rests in the discretion of the justice or
judge or the officers named in section 804-5 and shall be set
in a reasonable amount based upon all available information,
including the offense alleged, the possible punishment upon
conviction, and the defendant's financial ability to afford
bail. The bail amount should be so determined as not to suffer
the wealthy to escape by the payment of a pecuniary penalty,
nor to render the privilege useless to the poor.

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(Count Five). On August 30, 2022, an Order Pertaining to Bail
(OPB) was filed, which ordered Carter to be "held without bail"
(no bail).7
On January 9, 2023, Carter filed a Motion for Supervised
Release or, in the Alternative, to Set Bail (Motion to Set Bail),
arguing that there had been no hearing or findings supporting no
bail, as required by HRS § 804-3.8 In response to the Motion to

7 The Order Denying Bail Reduction noted in Finding of Fact (FOF) 5
that at the time the August 30, 2022 OPB of no bail was filed, an August 26,
2022 Pretrial Bail Report (PBR) had been filed under 1DCW-XX-XXXXXXX (initial
criminal felony complaint filed in district court) by the Oahu Intake Services
Center (OISC), which recommended against any supervised release for Carter
because Carter "did not have a stable residence"; Carter's "employment could not
be verified and a representative of [Carter]'s alleged employer indicated they
are not familiar with [Carter]"; Carter "ha[d] a criminal record in Nevada,
Florida, Illinois, New Jersey, and Hawaii"; and Carter "scored as a 'high' risk
level" based on the pretrial risk assessment OISC conducted.
8 HRS § 804-3 (2014), entitled "Bailable offenses," states:

(a) For purposes of this section, "serious crime" means
murder or attempted murder in the first degree, murder or
attempted murder in the second degree, or a class A or B
felony, except forgery in the first degree and failing to
render aid under section 291C-12, and "bail" includes release
on one's own recognizance, supervised release, and conditional
release.

(b) Any person charged with a criminal offense shall be
bailable by sufficient sureties; provided that bail may be
denied where the charge is for a serious crime, and:

(1) There is a serious risk that the person will flee;

(2) There is a serious risk that the person will
obstruct or attempt to obstruct justice, or therefore, injure,
or intimidate, or attempt to thereafter, injure, or
intimidate, a prospective witness or juror;

(3) There is a serious risk that the person poses a
danger to any person or the community; or

(4) There is a serious risk that the person will engage
in illegal activity.

(c) Under subsection (b)(1) a rebuttable presumption
arises that there is a serious risk that the person will flee
or will not appear as directed by the court where the person
is charged with a criminal offense punishable by imprisonment
for life without possibility of parole. For purposes of

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Set Bail, the OISC submitted a letter to the Circuit Court noting
that:
"The Oahu Intake Service Center (OISC) has not filed any
previous Pretrial Bail Reports in the current case as the
defendant is being held without bail." OISC also cited H.R.S.
§ 353-109 and noted that persons detained without bail are not

subsection (b)(3) and (4) a rebuttable presumption arises that
the person poses a serious danger to any person or community
or will engage in illegal activity where the court determines
that:

(1) The defendant has been previously convicted of a
serious crime involving violence against a person within the
ten-year period preceding the date of the charge against the
defendant;

(2) The defendant is already on bail on a felony charge
involving violence against a person; or

(3) The defendant is on probation or parole for a
serious crime involving violence to a person.

(d) If, after a hearing the court finds that no
condition or combination of conditions will reasonably assure
the appearance of the person when required or the safety of
any other person or community, bail may be denied.

HRS § 804-3 was amended to its current form in 1987. There is no Hawai‘i
case law that analyzes the current version of HRS § 804-3 in the context
of orders denying bail.
9 HRS § 353-10 (2015 & 2022 Supp.), entitled "Intake service centers,"
provides in subsection (b) that the centers shall:

(3) Conduct internal pretrial risk assessments on adult
offenders within three working days of admission to a
community correctional center; provided that this paragraph
shall not apply to persons subject to county or state
detainers or holds, persons detained without bail, persons
detained for probation violation, persons facing revocation of
bail or supervised release, and persons who have had a
pretrial risk assessment completed prior to admission to a
community correctional center. . . .

. . . .

(9) Provide pretrial bail reports to the courts on adult
offenders, within three working days of admission of the
offender to a community correctional center, that are ordered
by the court or consented to by the offender. A complete copy
of the executed pretrial risk assessment . . . shall be
included in the pretrial bail report. . . .

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eligible for a pretrial risk assessment. H.R.S. § 353-
10(b)(3). OISC further stated: "Should bail be set in this
matter the OISC would be able to address a Motion for
Supervised Release in this case."

FOF 8 (footnote added).
January 31, 2023 hearing: Bail set at $3.3 million
to obtain an updated pretrial bail report
At the January 31, 2023 hearing on the Motion to Set
Bail, Carter requested a bail amount of "$100,000" to be set. The
State argued that Carter's no bail status pursuant to HRS § 804-3
should continue, as "there was a rebuttable presumption of
detention" and that Carter "posed a danger to the community and a
flight risk."10 The Circuit Court further explained, in FOFs 12
and 13, that while it believed Carter qualified to be held without
bail under HRS § 804-3, it set a bail amount so an updated PBR
could be obtained from OISC:

12. The Court at the time of the January 1 [sic],11 2023
hearing, did believe given the charges and the factual
information presented, that Defendant qualified for and
was subject to, being held without bail pursuant to H.R.S.
§ 804-3.

(Emphases added.) It appears in this case that a PBR in accordance with
this statute was completed on August 26, 2022 and filed in the earlier
district court case, not in the Circuit Court case.

10 In the September 1, 2023 Order Denying Bail Reduction, the Circuit
Court explained in FOF 11 that it found the $3.3 million "to be reasonable"
based on, inter alia, the serious crimes Carter was charged with; the possible
penalties he faced if convicted; Carter's criminal record in Hawai‘i, Nevada,
Florida, Illinois, and New Jersey, including felony offenses; Carter's arrests
for contempt of court and parole violations indicating risk of flight and non-
compliance with court orders; Carter's conviction and arrest for the violent
crime of robbery; possessing a firearm as a felon; and Carter's severe mental
health diagnosis and reported use of illicit substances prior to entering
custody.

11 It appears that the Circuit Court was actually referring to the
January 31, 2023 bail hearing, and the January 1, 2023 reference is erroneous.

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13. The Court's setting of bail in this matter allowed the
production of an updated PBR.12 An updated PBR would allow
for further review of any combination of bail conditions
that might address the risks of flight and dangerousness.

(Footnotes added.) After the hearing, the Circuit Court then
filed a January 31, 2023 OPB that set an aggregate bail amount of
$3.3 million.
On March 14, 2023, Carter filed another Motion for
Supervised Release or, in the Alternative, to Reduce Bail (Motion
to Reduce Bail), requesting that the $3.3 million bail be reduced
to "$100,000." On March 16, 2023, an updated PBR recommended
against any supervised release, and noted that Carter did not have
a "stable residence," had no verifiable employment, had a

12 While the statute cited by OISC, HRS § 353-10(b), appears to apply
to the preparation of an initial PBR with pretrial risk assessment within the
first "three working days" of a detainee's admission to a community correctional
center, the Circuit Court is entitled to periodic reviews and recommendations
for a pretrial detainee's bail status based on "new information or a change in
circumstances" under HRS § 353-6.2 (2015 & 2022 Supp.). This statute, entitled
"Community correctional centers; periodic reviews of pretrial detainees,"
provides:

(a) The relevant community correctional centers, on a
periodic basis but no less frequently than every three months,
shall conduct reviews of pretrial detainees to reassess
whether a detainee should remain in custody or whether new
information or a change in circumstances warrants
reconsideration of a detainee's pretrial release or
supervision.

(b) For each review conducted pursuant to subsection
(a), the relevant community correctional center shall transmit
its findings and recommendations by correspondence or
electronically to the appropriate court, prosecuting attorney,
and defense counsel.

(c) If a motion to modify bail is filed pursuant to a
recommendation made pursuant to subsection (b), a hearing
shall be scheduled at which the court shall consider the
motion.

(Emphases added.) HRS § 353-6.2 does not contain any exclusion on the court's
ability to obtain a periodic review report, unlike HRS § 353-10(b)(3)'s
exclusion of certain categories of pretrial detainees from having pretrial risk
assessments prepared.

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"criminal record in Nevada, Florida, Illinois, New Jersey, and
Hawaii," and that Carter was "scored as a 'high' risk." Another
PBR was filed on April 5, 2023, noting that Carter's proposed
supervised release sponsors declined to sponsor Carter. The
Circuit Court took judicial notice of the PBRs.
May 9, 2023 hearing: Bail reduction denied and bail
remains $3.3 million
At the May 9, 2023 hearing on the Motion to Reduce Bail,
the court minutes reflect that Carter testified, defense exhibits
A through C were received,13 and the Circuit Court denied the bail
reduction. This ruling was reflected in the subsequently filed
September 1, 2023 Order Denying Bail Reduction, in which the
Circuit Court made findings under HRS § 804-3, that because the
statute stated that bail "may be denied" and did not require that
bail be denied, the Circuit Court maintained the $3.3 million bail
amount and denied the requested reduction to $100,000.00.14

13 The following exhibits were received into evidence: the January 31,
2023 OPB setting bail at $3.3 million (Exhibit A); a Bank of Hawaii banking
statement reflecting Carter's savings of "$875.49" (Exhibit B); and an October
27, 2022 complaint filed against Carter for "$543.35" in unpaid rent (Exhibit
C).
14 The Order Denying Bail Reduction states in pertinent part:

FINDINGS OF FACT

. . . .

33. Given the charges and the factual information presented,
the rebuttable presumption of detention without bail is
applicable, pursuant to H.R.S.§ 804-3. Defendant may be denied
bail based upon the charges and the facts as presented to the
Court, there is a serious risk that Defendant will flee and a
serious risk that Defendant poses a danger to any person or
the community. The Court elects not to deny defendant bail in
this instance.

34. Bail in the amount of $3,300,000 was previously set by the
Court and the Court finds it to be reasonable given the
totality of the circumstances. Id. at 1.

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CONCLUSIONS OF LAW

. . . .

6. HRS § 803(b)(l) states, in pertinent part, "[a]ny person
charged with a criminal offense shall be bailable by
sufficient sureties; provided that bail may be denied where
the charge is for a serious crime, and there is a serious risk
that the person will flee."

7. "Under subsection (b)(l) a rebuttable presumption arises
that there is a serious risk that the person will flee or will
not appear as directed by the court where the person is
charged with a criminal offense punishable by imprisonment for
life without possibility of parole." HRS § 804-3(c).

8. The penalty for Attempted Murder in the Second Degree and
Murder in the Second Degree is life imprisonment with the
possibility of parole. HRS § 706-656(2). The State has given
Defendant notice of his eligibility to be sentenced to an
extended term of imprisonment, which increases the potential
penalty that he is facing to life imprisonment without the
possibility of parole. HRS § 706-661(1).

9. The Court finds that Defendant is charged with multiple
serious crimes under HRS § 804-3(b) and poses a serious flight
risk under HRS § 804-3(b)(l).

10. Further, bail may also be "denied where the charge is for
a serious crime, and ... [t]here is a serious risk that the
person poses a danger to any person or the community." HRS §
804-3(b)(3).

11. The Court finds that Defendant poses a serious risk of
danger to any person or the community under HRS § 804(b)(3)
based on the alleged facts of the current offenses.

12. The Court has not been presented with a condition or
combination of conditions that will reasonably assure the
appearance of Defendant when required or the safety of any
other person or community." HRS § 804-3(d).

13. Under the circumstances bail may be denied pursuant to
H.R.S. § 804-3, however, there is not a requirement to do so.

14. Defendant poses a serious risk of flight and a serious
danger to any person or the community. The Court has applied
its wide discretion in considering the foregoing factors, such
as Defendant's pecuniary situation and the maximum potential
penalty for the charges in the indictment. Sakamoto v. Won Bae
Chang [sic], 56 Haw. 447, 539 P.2d 1197 (1975). The Court
finds that the current bail in the amount of $3,300,000 is
reasonable at this time.

(Emphases added and emphases to "may" in original.)

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II. STANDARD OF REVIEW
Release on Bail: "The decision whether to grant a
motion for release on bail . . . requires a judgment call" by the
trial court; and decisions "requir[ing] a 'judgment call' on the
part of the trial court, are reviewed for an abuse of discretion."
State v. Cullen, 86 Hawai‘i 1, 9, 946 P.2d 955, 963 (1997) (cleaned
up). "The trial court abuses its discretion when it clearly

It appears that the Circuit Court cited to Sakamoto v. Won Bae
Chang, 56 Haw. 447, 539 P.2d 1197 (1975), for the proposition that the court has
wide discretion in determining the amount of bail. Carter also relies on
Sakamoto, which the State argues is distinguishable, as it is unclear in
Sakamoto "what were the relevant facts[,]" and because "the statutes relating to
bail have been amended and bec[a]me more detailed since[.]"

In Sakamoto, the petitioner argued that bail in the amount of
"$300,000" was "in effect a denial of his right to be admitted to bail." Id. at
449, 539 P.2d at 1199. Sakamoto construed the predecessor version of HRS § 804-
3, which is now obsolete. The prior version of HRS § 804-3 stated: "All
persons charged with criminal offenses shall be bailable by sufficient sureties,
unless for offenses punishable by imprisonment for life not subject to parole,
when the proof is evident or the presumption great." Id. Under this obsolete
statute, the Sakamoto Court found that the State "did not sustain [its] burden
that there [was] a fair likelihood that the petitioner [was] in danger of a jury
verdict against him for murder in the first degree[,]" and thus the petitioner
was entitled to bail. Id. at 449-50, 539 P.2d at 1199. The supreme court then
looked to the predecessor version of the bail amount statute, HRS § 804-9, which
stated:

The amount of bail rests in the discretion of the justice or
judge or the officers named in section 709-5; but should be so
determined as not to suffer the wealthy to to [sic] escape by
the payment of a pecuniary penalty, nor to render the
privilege useless to the poor. In all cases, the officer
letting to bail should consider the punishment to be inflicted
on conviction, and the pecuniary circumstances of the party
accused.

Id. at 450, 539 P.2d at 1199. Under this predecessor version of HRS § 804-9 and
Article I, Section 12 of the Hawai‘i Constitution, the Sakamoto Court concluded
that the $300,000 bail amount was excessive, where the lower court found that
petitioner "'[was] not of means,'" that "'pecuniary circumstances of the
[petitioner] would not be the basis on which a high bail can be set[,]'" and
"[n]o evidence has been presented that [petitioner] would not be present at any
of these proceedings should be [sic] not be held in custody[.]" Id. at 450-51,
539 P.2d at 1199-200. While the Circuit Court and the parties all referenced to
Sakamoto, a 1975 case, we conclude that Sakamoto's construction of obsolete
versions of HRS §§ 804-3 and 804-9 renders it inapposite and unhelpful to our
contemporary application of the current versions of these statutes in this case.

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exceeds the bounds of reason or disregards rules or principles of
law or practice to the substantial detriment of a party litigant."
Id. (citations omitted).
Amount of Bail: "It is settled that the determination
of the amount of bail rests peculiarly within the discretion of
the trial court. An appellate court should not disturb or
interfere with the exercise of such discretion, unless it is
clearly abused." State v. Henley, 136 Hawai‘i 471, 478, 363 P.3d
319, 326 (2015) (citation omitted).
Statutory Construction: The interpretation of a statute
is reviewed de novo. State v. Choy Foo, 142 Hawai‘i 65, 72, 414
P.3d 117, 124 (2018). The court's construction of statutes is
guided by the following rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself. Second,
where the statutory language is plain and unambiguous, our
sole duty is to give effect to its plain and obvious meaning.
Third, implicit in the task of statutory construction is our
foremost obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute itself.
Fourth, when there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists.

Id. (citation omitted).
III. DISCUSSION
Carter argues, inter alia, that the Circuit Court set
"excessive" bail in the amount of $3.3 million in violation of
Article I, Section 12 of the Hawai‘i Constitution and HRS § 804-9,
as he is a "poor person." The State argues that the Circuit Court
did not abuse its discretion, where it could have "detained Carter
without bail as provided in HRS § 804-3(b)[,]" but chose to not do
so and instead found that $3.3 million "was reasonable given the
totality of the circumstances."

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A. The setting of cash bail under HRS § 804-9 entails a
financial circumstances analysis, which is distinct
and different from the risk analyses for denial of
bail under HRS § 804-3(b) and (d).
Under the HRS, a criminal pretrial defendant is
ordinarily entitled to a presumption of bail. "If the charge is
for an offense for which bail is allowable under section 804-3,
the defendant may be admitted to bail before conviction as a
matter of right and under the least restrictive conditions
required to ensure the defendant's appearance and to protect the
public. . . ." HRS § 804-4(a) (2014 & 2022 Supp.) (emphasis
added). "Any person charged with a criminal offense shall be
bailable by sufficient sureties; provided that bail may be denied
where the charge is for a serious crime . . . ." HRS § 804-3(b).
HRS § 804-1 (2014) defines "bail" as:
Bail, or the giving of bail, is the signing of the
recognizance by the defendant and the defendant's surety or
sureties, conditioned for the appearance of the defendant at
the session of a court of competent jurisdiction to be named
in the condition, and to abide by the judgment of the court.

"Bail" is generally defined as "[a] security such as cash, a bond,
or property; esp., security required by a court for the release of
a criminal defendant who must appear in court at a future time."
Black's Law Dictionary 167 (10th ed. 2014). HRS § 804-3(a)
further explains that, under that statute, "'bail' includes
release on one's own recognizance, supervised release, and
conditional release." There are also mandatory "[g]eneral
conditions of release on bail" that apply to all persons released
on any of the different types of bail, under HRS § 804-7.4.15

15 HRS § 804-7.4 (2014), entitled "General conditions of release on
bail," provides:

Any person released on bail, recognizance, supervised release
or conditional release shall be released subject to the
following conditions:

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1. Setting of cash bail is governed by HRS § 804-9.
As to monetary or "cash" bail, HRS § 804-9 specifically
requires that the amount be "reasonable," which is determined
based on "all available information, including the offense
alleged, the possible punishment upon conviction, and the
defendant's financial ability to afford bail." HRS § 804-9
circumscribes a court's discretion with the admonition that the
cash bail amount "should be so determined as not to suffer the
wealthy to escape by the payment of a pecuniary penalty, nor to
render the privilege useless to the poor." Thus, a key component
of setting cash bail under HRS § 804-9 involves analyzing the
financial circumstances of the defendant, and setting an amount
that does not discriminate against indigent defendants and
advantage defendants with financial means.
2. Denial of bail based on risk is governed by HRS
§ 804-3.
Bail denial for serious crime and serious risk under
HRS § 804-3(b). Under HRS § 804-3(b), a person "may be denied"
bail for a "serious crime" and if the trial court finds any of the
"serious risk[s]" in (b)(1) through (b)(4) are present:
(1) There is a serious risk that the person will flee;

(2) There is a serious risk that the person will obstruct or
attempt to obstruct justice, or therefore, injure, or
intimidate, or attempt to thereafter, injure, or
intimidate, a prospective witness or juror;

(3) There is a serious risk that the person poses a danger to
any person or the community; or

(1) The person shall not commit a federal, state or local
offense during the period of release;

(2) The person shall appear for all court hearings unless
notified by the person's attorney that the person's appearance
is not required; and

(3) The person shall remain in the State of Hawaii unless
approval is obtained from a court of competent jurisdiction to
leave the jurisdiction of the court.

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(4) There is a serious risk that the person will engage in
illegal activity.

A "serious crime" under HRS § 804-3 means "murder or attempted
murder in the first degree, murder or attempted murder in the
second degree, or a class A or B felony, except forgery in the
first degree and failing to render aid under section 291C-12[.]"
HRS § 804-3(a). HRS § 804-3(c) sets forth the criteria for the
various rebuttable presumptions that may apply to any of the
applicable "serious risk" findings for a "serious crime" denial of
bail under subsection (b), such as "serious risk" of flight under
(b)(1), "serious risk" of danger to a person or the community
under (b)(3), and "serious risk" of illegal activity under (b)(4).
Thus, the bail denial determination under HRS § 804-3(b) involves
a "serious crime" determination and an analysis of the "serious
risk" posed by the defendant.
Bail denial for no risk-mitigating bail conditions under
HRS § 804-3(d). Under HRS § 804-3(d), "[i]f, after a hearing the
court finds that no condition or combination of conditions will
reasonably assure the appearance of the person when required or
the safety of any other person or community, bail may be denied."
Thus, the bail denial determination under HRS § 804-3(d) involves
an analysis of whether any risk-mitigating bail conditions16 may be

16 These conditions are set forth in HRS § 804-7.1 (2014 & 2022 Supp.),
entitled "Conditions of release on bail, recognizance, or supervised release,"
which provides in pertinent part:

Upon the defendant's release on bail, recognizance, or
supervised release, however, the court may enter an order:

(1) Prohibiting the defendant from approaching or
communicating with particular persons or classes of persons,
except that no such order should be deemed to prohibit any
lawful and ethical activity of defendant's counsel;

(2) Prohibiting the defendant from going to certain
described geographical areas or premises;

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imposed to provide reasonable assurance against a risk of non-
appearance, or a risk to public safety. If the court determines
no risk-mitigating bail conditions or combination of conditions
exist under HRS § 804-3(d), then a denial of bail is appropriate.17

(3) Prohibiting the defendant from possessing any
dangerous weapon, engaging in certain described activities, or
indulging in intoxicating liquors or certain drugs;

(4) Requiring the defendant to report regularly to and
remain under the supervision of an officer of the court;

(5) Requiring the defendant to maintain employment, or,
if unemployed, to actively seek employment, or attend an
educational or vocational institution;

(6) Requiring the defendant to comply with a specified
curfew;

(7) Requiring the defendant to seek and maintain mental
health treatment or testing, including treatment for drug or
alcohol dependency, or to remain in a specified institution
for that purpose;

(8) Requiring the defendant to remain in the
jurisdiction of the judicial circuit in which the charges are
pending unless approval is obtained from a court of competent
jurisdiction to leave the jurisdiction of the court;

(9) Requiring the defendant to submit to the use of
electronic monitoring and surveillance;

(10) Requiring the confinement of the defendant in the
defendant's residence[.]
17 While not referenced in the Order Denying Bail Reduction that we
review here, there is another bail denial provision set forth in HRS
§ 804-7.1, in addition to the bail denial provisions in subsection (b) and (d)
of HRS § 804-3. This bail denial provision under HRS § 804-7.1 states:

Upon a showing that there exists a danger that the defendant
will commit a serious crime or will seek to intimidate
witnesses, or will otherwise unlawfully interfere with the
orderly administration of justice, the judicial officer named
in section 804-5 may deny the defendant's release on bail,
recognizance, or supervised release.

While bail denial under HRS § 804-7.1 contains a similar reference to "serious
crime" as in HRS § 804-3, it does not reference HRS § 804-3 or define "serious
crime." HRS § 804-3 defines "serious crime," but for "purposes of [that]
section" only.

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B. The Circuit Court made the required findings for a
denial of bail for a "serious crime" and "serious
risk" under HRS § 804-3(b), and no risk-mitigating
bail conditions under HRS § 804-3(d).
Here, with regard to the "serious crime" and "serious
risk" analysis under subsection (b), the Circuit Court found
Carter was charged with a "serious crime" in each of the five
counts in the Indictment under HRS § 804-3(a). The Circuit Court
found under (b)(1) that Carter was "charged with multiple serious
crimes under HRS § 804-3(b) and poses a serious flight risk under
HRS § 804-3(b)(1)." Conclusion of Law (COL) 9. The Circuit Court
applied the rebuttable presumption of serious risk of flight under
subsection (c), where "[t]he penalty for Attempted Murder in the
Second Degree is life imprisonment with the possibility of
parole[,]" and the "State has given [Carter] notice of his
eligibility to be sentenced to an extended term of imprisonment,
which increases the potential penalty . . . to life imprisonment
without the possibility of parole." COLs 7-8. The Circuit Court
also found under subsection (b)(3), that Carter "pose[d] a serious
risk of danger to any person or the community" "based on the
alleged facts of the current offenses." COLs 10-11. Even though
the Circuit Court made the required findings for a denial of bail
under the "serious crime" prong in HRS § 804-3(b), the Circuit
Court elected not to deny bail in this case.
Here, with regard to the analysis of any risk-mitigating
bail conditions under HRS § 804-3(d), the Circuit Court concluded
that: "The Court has not been presented with a condition or
combination of conditions that will reasonably assure the
appearance of [Carter] when required or the safety of any other
person or community." COL 12. Despite its conclusion that no
bail conditions or combination of bail conditions could reasonably
assure Carter's appearance or public safety, the Circuit Court
elected not to deny bail in this case. We note, however, that it

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appears inconsistent for the Circuit Court to find, on the one
hand, that no bail conditions could mitigate the non-appearance
and public safety risks posed by Carter; and on the other hand, to
then set cash bail in the face of such risks.
Despite making findings sufficient to deny bail under
both HRS § 804-3(b) and (d), the Circuit Court explained in FOF 33
and COL 13,18 that the statute's use of the term "may" in stating
"bail may be denied" in subsections (b) and (d), meant that the
Circuit Court had discretion to deny bail or to elect not to do
so. This is a correct interpretation of the plain meaning of
"bail may be denied," and the Circuit Court had discretion to
elect not to deny bail outright. See Choy Foo, 142 Hawai‘i at 72,
414 P.3d at 124. However, once the Circuit Court decided to set
cash bail as an alternative, it was required to exercise its
discretion in accordance with the law governing setting the amount
of cash bail, i.e. HRS § 804-9 and its requirement that the amount
be "reasonable." The Circuit Court did not properly exercise its
discretion in determining the amount of cash bail in this case.

18 FOF 33 and COL 13 states:

33. Given the charges and the factual information presented,
the rebuttable presumption of detention without bail is
applicable, pursuant to H.R.S.§ 804-3. Defendant may be
denied bail based upon the charges and the facts as presented
to the Court, there is a serious risk that Defendant will flee
and a serious risk that Defendant poses a danger to any person
or the community. The Court elects not to deny defendant bail
in this instance.

. . . .

13. Under the circumstances bail may be denied pursuant to
H.R.S. § 804-3, however, there is not a requirement to do so.

(Emphases in original.)

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C. The Circuit Court abused its discretion by setting cash
bail in the amount of $3.3 million in violation of HRS §
804-9, without analyzing the financial circumstances of
the defendant.
"Excessive bail shall not be required." U.S. Const.
amend. VIII; Haw. Const. art. I, § 12. HRS § 804-9 guides and
circumscribes the scope of a trial court's discretion when setting
a cash bail amount. The Circuit Court was required to set such
cash bail in a "reasonable amount" that would not "render the
privilege useless to the poor." HRS § 804-9. The record reflects
that on September 19, 2022, prior to the bail hearings at issue,
the Circuit Court had found Carter was indigent and appointed
court-appointed counsel for Carter due to a conflict of interest
with the State Office of the Public Defender. The Circuit Court
noted in FOF 20 that Carter admitted into evidence a banking
statement, and that Carter had an income of "$861 per month from
Social Security benefits." The bail hearing evidence also
contained a complaint filed against Carter, which sought to
recover unpaid rent from Carter in the amount of "543.35." While
FOF 20 reflects that the Circuit Court considered Carter's
financial circumstances as HRS § 804-9 requires, the Circuit Court
made no findings analyzing Carter's "financial ability to afford
bail" under HRS § 804-9, and explaining how the $3.3 million
amount was "reasonable" "based upon all available information,"
which included Carter's bank account and fixed social security
income. HRS § 804-9. The evidence did not indicate Carter had
the means to post cash bail in the amount of $3.3 million.
Here, it appears that the Circuit Court utilized its
risk-based findings for bail denial under HRS § 804-3 to conclude
that the $3.3 million bail amount was "reasonable" under HRS
§ 804-9, which was erroneous. The risk-based analysis for bail
denial under HRS § 804-3 is distinct and different from the
financial circumstances analysis required under HRS § 804-9.

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"A statutory interpretation that is rational, sensible, and
practicable is preferred to one which is unreasonable,
impracticable, inconsistent, contradictory, and illogical."
Matter of Lindner, 152 Hawai‘i 130, 142, 522 P.3d 1117, 1129 (App.
2022) (cleaned up). If a defendant charged with serious crimes
poses such a serious risk under the risk analysis in HRS § 804-
3(b), then it is logical to allow a deviation from the presumption
of bail, and to deny bail in that instance. If a defendant's non-
appearance or public safety risks cannot be mitigated by any
combination of bail conditions under the risk analysis under HRS
§ 804-3(d), then it is logical for the statute to allow a
deviation from the presumption of bail and to deny bail in that
instance. See id. While HRS § 804-9 includes consideration of
the offense type and possible punishment, it does not entail a
risk analysis similar to HRS § 804-3, and focuses on an assessment
of financial circumstances, which directs trial courts to avoid
discriminatory setting in bail amounts that favor wealthy
defendants and disadvantage poor ones.
We conclude that the Circuit Court abused its discretion
when it elected to set cash bail of $3.3 million and concluded
that such amount was reasonable, in violation of HRS § 804-9. See
Henley, 136 Hawai‘i at 478, 363 P.3d at 326.
IV. CONCLUSION
For the foregoing reasons, we vacate in part the
September 1, 2023 "Order Denying Defendant's Motion for Supervised
Release or, in the Alternative, to Reduce Bail" filed by the
Circuit Court of the First Circuit as to the bail amount, and
affirm the remainder of the order, which contains findings that
support a denial of bail under HRS § 804-3 (b) or (d). We remand
for the Circuit Court to issue an order pertaining to bail and to

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conduct any further proceedings as may be necessary, in accordance
with this Opinion.19

On the briefs:
/s/ Clyde J. Wadsworth
Samuel Carter, Presiding Judge
Self-represented Defendant-
Appellant. /s/ Karen T. Nakasone
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

19 We also reverse the January 31, 2023 OPB setting $3.3 million
aggregate bail, and the previous August 30, 2022 OPB of "no bail" remains in
effect until a new OPB is issued by the Circuit Court on remand.

20