KAILUA-KONA — Attempted murder and other charges have been dropped against a Kailua-Kona man accused of assaulting a Hawaii Police Department officer earlier this year in what prosecutors called a racially motivated attack.
Shannon Kaleolani Ke, 32, was released from custody Friday morning after Kona Circuit Court Judge Robert D.S. Kim canceled bail set at $322,000. The move followed the judge ruling to dismiss the case without prejudice because prosecutors didn’t bring the case to trial within 180 days.
Ke had been held at Hawaii Community Correctional Center since his arrest March 26 on charges of first-degree attempted murder with the enhancement of a hate crime, disorderly conduct, two counts of first-degree assault on a law enforcement officer and resisting arrest in connection with an incident fronting Huggo’s On The Rocks in Kailua Village.
Trial had been set to commence in mid-January, but that is now off the calendar. However, because Kim dismissed the case without prejudice, the state can refile the charges.
“Absolutely,” Deputy Prosecuting Attorney Chase Murray said Monday when asked if the state will again pursue the charges against Ke. “That’s why we argued so strong for a dismissal without prejudice.”
The matter came before Kim on Friday after Murray on Nov. 27 made a Hawaii Rules of Penal Procedure Rule 48 calculation and discovered the rule expired Nov. 28 — well ahead of the January trial. The rule states the court must dismiss a charge, with or without prejudice in its discretion, if trial is not commenced within six months from the filing of charges.
Deputy Public Defender Ann Datta, Ke’s court-appointed counsel, on Dec. 9 filed a motion to dismiss the case with prejudice citing violation of Rule 48, and unconstitutional violation of Ke’s speedy trial rights.
According to her filing, 256 days had lapsed since the indictment, with 67 of those days “excludable” for a mental evaluation conducted this summer. Based on those numbers, 189 days had passed, “which is 9 days over the time limit for Rule 48 and speedy trial rights purposes.”
In arguing for the case to be dismissed with prejudice, meaning prosecutors would not be able to refile charges against Ke, Datta pointed to only one of the charges, the attempted murder charge, being a serious offense; the appearance of no justification for the delay other than failing to request to advance the trial date; and the impact re-prosecution would have on the administration of justice by making the “consequences of a Rule 48 violation meaningless.”
Further, she wrote, “a dismissal with prejudice would further policy considerations to relieve congestion in the trial courts, to promptly process all cases reaching the courts and to advance the efficiency of the criminal justice process; this court should also conclude that the State caused unreasonable delay in this case, and that this unreasonable delay subverted the public good and disgraced the administration of justice.”
Murray said Monday that the responsibility for calculating Rule 48 falls primarily on prosecutors, though the Supreme Court has ruled that the court and defense also share responsibility.
“I didn’t think about all the time we’d burned through,” he said when probed about the discrepancy.
According to police and prosecutors, Ke assaulted Officer Randall Hancock on the shoreline fronting Huggo’s On The Rocks. Hancock and another officer had responded to the eatery around 5 p.m. March 26 to a report of a disorderly man.
While making contact with the man, identified as Ke, a confrontation ensued resulting in Hancock and Ke tumbling into the water where the altercation continued. The officers were eventually able to take Ke into custody without further incident.
The officer allegedly assaulted by Ke was treated at Kona Community Hospital for contusions to his head and face as well as bruising to his legs. The hate crime enhancement was filed because Ke allegedly made disparaging comments about the officer’s believed race.
Ke pleaded not guilty to the offenses in April.
According to Murray’s Dec. 11 memorandum in opposition to Datta’s motion to dismiss the case, Hancock “suffered damage to spinal discs and lumbar spine, as well as continued headaches, memory lapses, and possible brain damage” as a result of the March 26 incident. Further, the officer remained on leave from the department and has been prohibited from operating a vehicle for medical reasons stemming from the incident.
Attempts to reach Datta were unsuccessful as of press time Monday.