WAILUKU - After a criminal complaint against former police officer Christopher Kealoha was received at the Maui Police Department in February, the document went missing before it was served on him more than five months later.
Because the 180-day time limit for a speedy trial had lapsed by the time Kealoha was arraigned in court Aug. 7, the charge alleging that Kealohad abused his police officer wife was dismissed Friday.
But, citing the "unusual occurrence" that led to the delay, 2nd Circuit Judge Richard Bissen dismissed the charge without prejudice, meaning it can be brought again.
Deputy Prosecutor Emlyn Higa said that the state would refile the charge alleging that Kealoha abused his wife at their Haiku residence on Nov. 24, when both were employed as Maui police officers.
"This is a delicate matter and a difficult matter because it does involve both parties being police officers," Bissen said in ruling on the defense request to dismiss the charge. "And it does involve a rather unusual occurrence that in over 26 years, Lieutenant (Arthur) Dadez has never seen before."
Dadez, a nearly 27-year police veteran and the Wailuku Patrol District watch commander, testified that he was assigned to find the paperwork for the penal summons complaint against Kealoha on July 18, after an internal inquiry about whether it had been served. When Dadez couldn't locate the document at the Police Department, he asked the prosecutor's office to send him another copy, which he received the same day and assigned his watch to serve on Kealoha. The summons was served on Kealoha that day, court records show.
Police records show the original document from the prosecutor's office was received at the Police Department's Records Section on Feb. 1.
Under routine practice, a clerk would have picked up the document along with other mail from the Records Section and distributed the material into a bin in the Wailuku patrol squadroom along with other penal summons complaints, bench warrants and subpoenas, Dadez said. He said the summons for Kealoha would have been placed in a folder for an Upcountry beat, although it wouldn't be unusual for officers assigned to other beats to also look into the folder.
Kealoha's wife, Rachel Kealoha, was working as a Wailuku patrol officer and would have had access to the folder containing the summons for her husband, Dadez said.
The prosecutor's office had initially declined prosecution of Christopher Kealoha pending investigation. On Jan. 17, about a week before the complaint was filed, Rachel Kealoha had gone to the prosecutor's office to sign a document requesting withdrawal of prosecution of her husband in the abuse case. She was told that the prosecutor's office might proceed with the charge.
Questioned by Higa about how an officer could intercept a document such as a penal summons, Dadez said that an officer could take the document from the folder, take it on patrol and destroy it.
"Is that something officer Rachel Kealoha would have the means and opportunity to do?" Higa asked Dadez.
"Yes," he replied.
"And pretty much any other officer would have means and opportunity?" Higa asked.
"That is correct," Dadez said.
Under questioning by Deputy Public Defender John Parker, Dadez said he had no information that Rachel Kealoha was involved and had no information about what happened to the original summons for her husband.
Bissen asked Dadez how often a penal summons goes missing.
"That's pretty rare," Dadez said.
"Can you think of any other time this has happened in your 26-plus years?" Bissen asked.
"No," Dadez replied.
"Have you ever heard of a situation where it just disappeared?" the judge asked.
"No," Dadez said.
If a summons were placed in the wrong bin, it would be returned to the correct bin or sent somewhere that could be tracked, Dadez said.
"So how do you explain a physical document going from the prosecutor's office to the Police Department and then totally disappearing?" Bissen asked.
"It got intercepted," Dadez replied. "Somebody picked it up and made it go away."
"We're not attacking anybody in particular, but that's the only way that would happen?" the judge asked.
"That's right," Dadez said.
Rachel Kealoha, a police officer for five-and-a-half years who was also called to testify at the hearing Friday, said she signed the withdrawal of prosecution of her husband because "I don't think that the charge represented what actually happened."
"I don't think there was any incident, any abuse, anything like that," she said.
She said she had first asked to sign the withdrawal that night when officers showed up.
"By the time they got there, I no longer needed their assistance," she said. "I just wanted them to help me get Chris in the house."
Asked why she called 911 instead of someone else, Kealoha said, "I didn't have anybody else to call at that hour. That's my family."
She said she didn't realize she had "red dried blood on my lip," which required police officers to arrest her husband that night.
Responding to questions from Parker, Rachel Kealoha said that her husband didn't act intentionally and she had just awakened him that night.
"It'd be like trying to capture a dog that was walking by," she said. "It flailed, you get a scratch on your arm."
Asked about whether what she told a 911 radio operator that night was the truth, Kealoha said, "I'm sure I was in a very emotional state."
In a tape of her 911 call played in court, she says, "Chris just kicked me in the face," while a baby cries in the background.
She tells the police dispatcher that her husband is in the bathtub and she's in the house. She appears to be crying at times, with the dispatcher saying, "It's OK, Rachel, it's all right" at one point.
When the dispatcher asks about any firearms in the house, Rachel Kealoha says, "He doesn't have any firearms. They're all surrendered." and "I didn't bring mine home."
As the dispatcher says officers are heading to the house from Pukalani, Rachel Kealoha says, "I don't know what else to do. I don't want to do this."
In giving the prosecution the opportunity to refile the charge, Bissen said that the prosecution "has done nothing to create this."
"Every police investigation begins with the question by an experienced detective. Who had motive? Who had opportunity?" the judge said. "I think Lieutenant Dadez ruled out accident as a cause. There's no accident.
"Can we say anyone on Maui could have removed it? We know that's not true. It didn't have to be Mrs. Kealoha. It could be somebody else who worked at the department, who is fond of either of the Kealohas. The fact of the matter is this was removed from the Police Department's secure area, so it could only be someone on staff at the Police Department."
Bissen also said it was undisputed that Rachel Kealoha didn't want to see the case proceed.
"She would like nothing more than to see this case dismissed, whatever the reason," Bissen said. "The reason today is this was an unintentional accident by a flailing, half-asleep, half-awake person.
Yet we just heard from the 911 tape that she made a very important phone call - a phone call, I might add, that needed to be made that night."
"At the time, you needed to make that call," the judge said to Rachel Kealoha, who was in the courtroom gallery to hear the decision. "And that's what kept you safe."
Christopher Kealoha, 28, who had been an officer for more than five years, resigned from the department earlier this year, police said.
* Lila Fujimoto can be reached at email@example.com.