STATE of Hawaiʻi, Plaintiff-Appellee, v. Willie R. JACKSON, Defendant-Appellant.
No. 17367.
Supreme Court of Hawaiʻi.
Feb. 23, 1996.
Amended Concurring Opinion by Judge Levinson filed Feb. 26, 1996.
912 P.2d 71
Donn Fudo, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee State of Hawaiʻi.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
Following a jury trial, defendant-appellant Willie R. Jackson was convicted of one count of sexual assault in the second degree, in violation of
We hold that Jackson received a fair trial, free from reversible error, and that sufficient evidence was presented by the prosecution to support his convictions. However, because we agree with Jackson that the circuit court erred in concluding that the commencement of his trial was within the time limits set forth in
We recognize that by vacating Jackson‘s convictions the purposes sought to be accomplished by
I. BACKGROUND
On the night of June 2, 1991, Jackson, Kaipo Annon, and the complaining witness (CW), all of whom worked together at a Waikiki hotel, decided to meet after work at Hot Rods Cafe (the Cafe), where Jackson‘s girlfriend, Monica, worked as a waitress. The three co-workers had some drinks and food, talked, and listened to music with another friend, Willie Meyers, until the Cafe closed at 2:00 a.m.
Jackson and CW followed Annon as far as Kahala, where Jackson “just turned the car around and ... went to Kahala Beach Park.” After arriving at the park, the two got out of the car and talked.
Jackson testified that at that point, he decided that they should return and he took CW directly back to where her car was parked.
CW‘s testimony regarding the events that followed their arrival at Kahala Beach Park was drastically different than Jackson‘s account. According to CW‘s testimony, Jackson started kissing her, and she told him to stop and pulled away. They returned to the car, where Jackson reclined the seats, unzipped his pants, and “pulled out” his erect penis. CW testified that she felt “scared” and had not expected Jackson to do that.
Jackson informed CW that he wanted her to “jack him off.” Still frightened, CW refused, and told him that she wanted to go back to her own car. Jackson ignored CW‘s request and instead “grabbed” her hand, “put it around his penis,” and started “making [her] hand go up and down.” Because CW “didn‘t want to move [her] hand up and down,” Jackson covered her hand with his and forced her hand to “go up and down” on his penis. CW tried to pull her hand away, told Jackson that she did not want to do it, and again pleaded that she be returned to her car. Jackson told her that he would not take her back until she made him “come,” essentially giving CW an ultimatum: either perform manual sex or get out of the car and walk.
CW did not get out of the car because it was 2:30 or 3:00 in the morning, nobody was around, and it was dark. She was scared, “afraid to just walk,” because “you hear stories about young girls and people getting murdered.” CW did manage to free her hand, but Jackson “kept pulling it back.” During this period, Jackson hid the car keys. At one point, CW succeeded in pulling her seat up, but Jackson reclined it back down and “jumped” over to her side. CW was “crying” and “making a lot of noise, hoping somebody would hear.” She repeatedly told Jackson that she “wanted to go back to [her] car, to stop,” but he ignored her pleas. Instead, Jackson got on top of CW and restrained her as she struggled. He then “pulled his pants half way down,” forced CW‘s skirt up, and “inserted his penis in” her vagina.
CW testified that she remained “scared” throughout this encounter, and that she was crying and repeatedly telling Jackson to stop. However, Jackson ignored her pleas and “kept doing it.” Eventually, Jackson “pulled his penis out.” CW again told him to take her back to her car. Jackson complied, and apologized to CW on the ride back. He also cautioned CW not to tell their friends at work or his girlfriend about the incident. CW subsequently reported the incident, and Jackson was arrested.
On April 28, 1992, an Oʻahu grand jury returned an indictment charging Jackson with sexual assault in the first dеgree in violation of
On December 1, 1992, Jackson filed a motion to dismiss the charges against him, claiming that
Trial commenced on December 2, 1992. Before the trial began, and outside of the jury‘s presence, the circuit court informed both parties of its intention to provide the jury with a few preliminary instructions, including the definition of “strong compulsion.” The court explained that it wanted to give the jurors something to focus on during the course of the proceedings, and asked whether counsel had any objections. Although defense counsel James Miura had no objection to the substance of the definition, he did note an objeсtion on procedural grounds.
Prior to recross-examination of CW, the court warned Miura, “Limit yourself to recross ... we‘re not going to do cross all over again.” During the recross, as Miura began to question CW about statements she had made to a private detective and to the police regarding the alleged sexual assaults, the following colloquy ensued:
THE COURT: How deeply are we getting into this since this is recross?
....
THE COURT: I don‘t recall that the [prosecution] raised that issue in its redirect.
MIURA: Well, I—this is also another prior statement, your Honor.
THE COURT: Yeah, but that‘s what you should have done in your cross, this is redirect, this is the fourth shot, you don‘t get to start doing new things in the fourth shot. You can only attack what the [prosecution] raised in its redirect and I don‘t recall that [it] did raise that on redirect.
I don‘t want to get into a third statement unless it directly deals with something raised by the [prosecution] in its redirect, not [its] direct.
MIURA: Well, your Honor, if it can get redundant, I can see this point, your Honor, I won‘t get into that point.
Miura then terminated his recross-examination of CW.
Once the prosecution rested, Jackson made a motion for mistrial and a motion for judgment of acquittal, each of which the court heard and denied that day. Both motions were heard outside the presence of the jury.
After the defense presented its case, and the parties settled jury instructions, Jackson renewed his motion for judgment of acquittal and again, outside the presence of the jury, the court denied his motion. The jury thereafter deliberated for a day and a half before returning its verdict: as to Cоunt I, Jackson was found guilty of the included offense of sexual assault in the second degree, and, as to Count II, he was found guilty of the included offense of sexual assault in the fourth degree. The court polled the jury, and all members indicated agreement with the verdict.
On December 21, 1992, Jackson filed a motion for a new trial, based on post-verdict revelations made by Patricia Pennywell, the jury foreperson. The motion alleged that because the “jury took into consideration the fact that Defendant was of African-American descent in coming to a guilty verdict,” Jackson “did not receive a fair and impartial trial on this matter.” According to Pennywell, two of the jurors made some comments that, arguably, revealed racial prejudice. One juror—an elderly Japanese female—expressed surprise that Jackson, whom she referred to as “colored,” had such a “pretty” and “non-
A second juror remarked, in the context of discussing the effects of alcohol, “That‘s the way they are.” Pennywell inferred that “they” referred to men of African-American descent. Pennywell then “called the juror” on her comment by repeating it. The juror immediately denied that she had meant any racial overtone. A few other jurors “grumbled” or “raised eyebrows perhaps.”
Pennywell testified that aside from these comments, no other references to race were made, and that it “wasn‘t possible to be racial with respect to the matter before the group.” In addition, Pennywell testified that she reminded the jurors “[t]hat it was important not to consider race as an issue in the deliberations.”
Pennywell also disclosed that on the morning of the day that the jury reached its verdict, she began to have memories of a sexual assault, of which she had not previously been consciously aware, that had been perpetrated on her by her stepfather when she was thirteen-years-old. Pennywell did not discuss her memories or feelings with the other jurors during deliberations. Nor did she vouch for the credibility of the complaining witness. When asked whether she was feeling any mental or emotional discomfort during jury deliberations because of the thoughts and memories of her own assault, Pennywell responded, “I was beginning to but they had not become clear until the morning we turned in a verdict.” Pennywell testified:
I figured I would be able to keep what happened to me separate from the issue before the court, and I was fully aware that it wasn‘t necessary for all of us to come to an agreement in a jury. That it was possible for there to be no agreement, and I found myself caving in simply because I couldn‘t tolerate being in the room with the ... situation and discussion.
At the conclusion of Pennywell‘s testimony, the circuit court heard and considered the arguments of counsel on both sides. The court thereafter deniеd Jackson‘s motion for new trial, stating in part:
[u]nder the circumstances and given the evidence that I have heard ... I ... found the evidence of guilt compelling and overwhelming; and I did not disagree with the verdict.... Nothing else in the day-and-a-half deliberation ... indicates to me that ethnicity or race had anything to do with it.... As to [Pennywell‘s] experience with her stepfather ... I am satisfied that [she] knew what she was doing when she voted to convict.... I didn‘t see anything improper in the deliberations.
On January 21, 1993, Miura made a motion to withdraw as counsel and have substitute counsel appointed.6 The next day, at a preliminary hearing on the motion for new trial based on Pennywell‘s disclosures, Jackson orally notified the court of his wish to replace Miura with private counsel on the ground that Miura had filed the motion for judgment of acquittal without Jackson‘s permission.7 Jackson subsequently filed a pro se motion for new trial based on Miura‘s filing of the motion for judgment of acquittal against Jackson‘s wishes.
On July 15, 1993, the circuit court denied Jackson‘s motion for new trial based on Miura‘s filing of the motion for judgment of acquittal. Final judgment and sentence were entered that day. Jackson thereafter timely appealed.
A. Sufficiency of the Evidence
Jackson alleges that there was “insufficient evidence to establish beyond a reasonable doubt that the crime of Sexual Assault by illegal strong compulsion or threatening had actually been committed, as required by Hawaiʻi law, even when the evidence is viewed in the light most favorable to the [prosecution].” (Emphasis addеd.)
Whether there was insufficient evidence to establish “strong compulsion” in the instant case is irrelevant, because “strong compulsion” is not an element of either offense for which Jackson was convicted. Although Jackson was charged with sexual assault in the first degree under
The question thus becomes whether there was sufficient evidence to establish the element of “compulsion.”8
We have long held that evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or a jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact. Indeed, even if it could be said in a bench trial that the conviction is against the weight of the evidence, as long as there is substantial evidence to support the requisite findings for conviction, the trial court will be affirmed.
“Substantial evidence” as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a [person] of reasonable caution to support a conclusion. And as trier of fact, the trial judge is free to make all reasonable and rational inferences under the facts in evidence, including circumstantial evidence. State v. Pone, 78 Hawaiʻi 262, 265, 892 P.2d 455, 458 (1995) (quoting State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992), reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992)).
In the instant case, the record contains substantial evidence that, from the outset, CW rebuffed Jackson‘s sexual advances. According to CW‘s testimony, she repeatedly told him to stop, attempted to pull away, and told Jackson that she did not want to touch him. This evidence is sufficient to establish absence of consent and, accordingly, is sufficient to establish the element of “compulsion.”
Thus, based on our review of the record, considering the facts in the strongest light for the prosecution, we hold that substantial evidence was presented to support Jackson‘s convictions of sexual assault in the second degree and sexual assault in the fourth degree. Therefore, Jackson‘s argument in this regard is without merit.
B. Pre-trial instruction on “strong compulsion”
In a related point of error, Jackson contends that the circuit court erred in giving a preliminary instruction defining “strong compulsion.” Jackson, however, fails to present any argument whatsoever to suppоrt this claim. Because no support for this claim appears in the “Argument” section of Jackson‘s opening brief, it is our prerogative to disregard it without reaching the issue pre-
Furthermore, because the jury did not convict Jackson of any offense involving “strong compulsion,” see supra section II.A., even assuming, arguendo, that the circuit court erred in giving the pre-trial instruction regarding the definition of “strong compulsion,” any such error was harmless beyond a reasonable doubt.
C. Restriction of Recross-Examination
Jackson next maintains that the circuit court improperly restricted the scope of his recross-examination of CW. The scope and extent of cross and recross-examination of a witness is within the sound discretion of the trial judge. See, e.g., State v. Alfonso, 65 Haw. 95, 648 P.2d 696, 700 (1982); see also State v. Emmsley, 3 Haw. App. 459, 467, 652 P.2d 1148, 1154 (1982). Under this standard, we will not disturb the trial court‘s exercise of its discretion unless it is clearly abused. An “abuse of discretion occurs if the trial court has ‘clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party-litigant.‘” State v. Adams, 76 Hawaiʻi 408, 411, 879 P.2d 513, 516 (1994) (citing Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992), reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992)).
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect the witness from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited to the subject of the direct examination and matters affecting the credibility of the witness.
Pursuant to this rule: (1) “[r]edirect is properly limited to the development, correction and refutation of matters brought out for the first time on cross“; and (2) “[r]ecross should similarly be limited to items newly broached on redirect. Repetitive examinations are properly curtailed under the court‘s general rule 611(a) control.” A. Bowman, Hawaiʻi Rules of Evidence Manual 250 (1990).
Jackson alleges that “[t]he trial court improperly denied [him] his right to confront and impeach his accuser” by restricting the scope of his recross-examination of CW “concerning the incident the [prosecution] questioned her about on re-direct.” This argument is contradicted by the record before us, insofar as (1) the circuit court did not preclude recross-examination of issues that had been raised on re-direct at all, but rather sought to limit the scope of recross so as to exclude issues not raised on re-direct, and (2) defense counsel voluntarily ceased pursuing a line of questioning that was concededly “redundant.”
Even if the circuit court had expressly restricted the scope of defense counsel‘s recross-examination in the manner described, such action would have fallen within the ambit of its discretion. However, a closer examination of the trial transcript reveals that this is not what occurred. After cautioning defense counsel to avoid questioning “unless it directly deals with something raised by the [prosecution] in its redirect, not [its] direct,” the circuit court allowed recross-examination to continue. At that point, defense counsel noted that his intended line of questioning would be “redundant,” and thereby ended his recross-examination of CW voluntarily.
Inasmuch as the circuit court did not abuse its discretion by cautioning defense counsel to keep the scope of his recross-examination within the proper bounds, and given that defense counsel voluntarily terminated the recross-examination because the intended line of questioning became redundant, Jackson‘s rights were not violated. Cf. Emmsley,
D. Jury Deliberations
Jackson‘s final contention with respect to alleged errors occurring at trial9 is that he was deprived of a fair trial by twelve fair and impartial jurors and that the circuit court erred in denying his motion for new trial on that basis. The granting or denial of a motion for new trial rests within the discretion of the trial court and will therefore not be disturbed absent a clear abuse of discretion. State v. Furutani, 76 Hawaiʻi 172, 178-79, 873 P.2d 51, 57-58 (1994). “The same principle is applied in the context of a motion for new trial premised on juror misconduct.” Id. at 179, 873 P.2d at 58.
Jackson‘s argument in this regard is based on jury foreperson Pennywell‘s post-verdict testimony that: (1) two jurors had expressed racist opinions; and (2) Pennywell had experienced an incident of sexual assault in her childhood that she did not recollect until the day on which the jury reached its verdict.
In Furutani, supra, we addressed the general principles and the conceptual framework governing claimed denials of the right to a fair trial by an impartial jury. We explained that “[t]he defendant bears the initial burden of making a prima facie showing of a deprivation that could substantially prejudice [his or her] right to a fair trial by an impartial jury.” 76 Hawaiʻi at 181, 873 P.2d at 60. When a defendant makes such a claim,
the initial step for the trial court to take is to determine whether the nature of the alleged deprivation rises to the level of being substantially prejudicial. If it does not rise to such a level, the trial court is under no duty to interrogate the jury.
And whether it does rise to the level of substantial prejudice is ordinarily a question committed to the trial court‘s discretion.
Id. at 180, 873 P.2d at 59. When the alleged deprivation is based on statements made during deliberations, in order for the deprivation to rise to the level of being substantially prejudicial, a showing must be made “that improper juror comments during deliberations have been used as a circumstance against” the defendant. Id. at 185, 873 P.2d at 64. If such a prima facie showing is made by the defendant,
there is a presumption of prejudice and the verdict will be set aside unless it is clearly shown that the juror‘s comments could not have affected the verdict. And consistent with our case law, the burden is on the prosecution to make such a clear showing beyond a reasonable doubt.
Id. at 185-86, 873 P.2d at 64-65.
1. Alleged racial bias amongst the jurors
We first consider Jackson‘s allegation regarding “the expression and acting out of racial prejudice in the jury deliberations.” Upon review of the record, we are convinced that even assuming, arguendo, that both jurors’ comments reflected a tendency towards racial bias, the circuit court did not abuse its discretion in denying Jackson‘s motion for new trial on that basis.
First of all, the comments regarding the race and appearance of Jackson‘s wife were made after agreement on the verdict had been reached.10 These comments therefore could not have been “comments during deliberations [that were] used as a circumstance against” Jackson. See Furutani, 76 Hawaiʻi at 185, 873 P.2d at 64. Consequently, they could not have risen to the level
Furutani, 76 Hawaiʻi at 179, 873 P.2d at 58. Although the circuit court did not enter written findings of fact, the court expressed its findings in making its oral ruling at the conclusion of the hearing on Jackson‘s motion for new trial. One such finding was that the juror‘s comments regarding her surprise at the racial difference between Jackson and his wife were made after the jury had reached agreement on the verdict. This finding was not clearly erroneous.
We are more troubled by the statement, “That‘s the way they are,” which Pennywell understood to be a reference to African-American men. Nonetheless, the trial court could have reasonably concluded that the statement did not influence the other jurors because: (1) Pennywell challenged the juror as soon as the comment was made; (2) the juror immediately denied any racial meaning behind the statement; (3) other jurors reacted to the comment negatively; (4) Pennywell expressly cautioned the jury not to consider race as an issue in the deliberations; (5) no other statements reflecting racial bias were made during the course of the deliberations; and (6) the circuit court “found the evidence of guilt compelling and overwhelming.”
Based on the foregoing, we hold that the circuit court could have reasonably concluded that the jurors’ comments “could not have affected the verdict.” See Furutani, 76 Hawaiʻi at 185, 873 P.2d at 64. Accordingly, we hold that the circuit court did not abuse its discretion in denying Jackson‘s motion for new trial on these grounds.
2. Pennywell‘s recollection during deliberations of a childhood experience of sexual assault
We next examine the effect of Pennywell‘s recollection of a childhood experience of sexual assault on Jackson‘s right to a fair trial by an impartial jury. This type of situation often arises in the context of, and is framed as a question involving, juror nondisclosure of relevant information during voir dire.
Under some circumstance a juror‘s nondisclosure of information during jury selection may be grounds for a new trial. Where, for example, a juror deliberately misrepresents important biographical information relevant to a challenge for cause or a peremptory challenge or knowingly conceals a bias or hostility towards the defendant, a new trial might well be necessary. In such instances, the juror‘s deliberate misrepresentation or knowing concealment is itself evidence that the juror
was likely incapable of rendering a fair and impartial verdict in the matter. Furutani, 76 Hawaiʻi at 182, 873 P.2d at 61 (quoting People v. Dunoyair, 660 P.2d 890, 895 (Colo. 1983)). The instant case, however, cannot be properly characterized as one involving knowing concealment during voir dire. First, because the jury selection process was not transcribed, we have no record of the questions asked during voir dire. We know only, according to Pennywell‘s testimony, that she was asked “about her experience” generally and “about being fair.” Second, it is uncontroverted that Pennywell was not consciously aware of her childhood experience at the time of voir dire and, therefore, would have been unable to disclose that information even if asked.
In determining whether Pennywell‘s recollection itself, as opposed to the failure to disclose it during voir dire, deprived Jackson of a fair trial by an impartial jury, we return to the conceptual framework discussed above. In this context, in order to make a prima facie showing of a deprivation, Jackson would have to present evidence that Pennywell “consciously relied on her personal childhood experience as a sex[ual] assault victim and, based on that experience, communicated her assessment of the credibility of [CW‘s] testimony to her fellow jurors.” Id. at 182 n. 13, 873 P.2d at 61 n. 13; see also State v. Larue, 68 Haw. 575, 577-78, 722 P.2d 1039, 1041-42 (1986).
Furthermore, as to the reasons that Pennywell ultimately “caved in” and voted for conviction—be it exhaustion, pressure from the other jurors, or stress due to the nature of her recollection—we may not make specific inquiries.
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify concerning the effect of anything upon the juror‘s or any other juror‘s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or conсerning the juror‘s mental processes in connection therewith. Nor may the juror‘s affidavit or evidence of any statement by the juror
indicating an effect of this kind be received.
See also Larue, 68 Haw. at 578, 722 P.2d at 1042. Although ”
The record supports the circuit court‘s findings that Pennywell did not communicate her recollection to the other jurors, nor did she rely upon it to vouch for CW‘s credibility. In fact, Pennywell testified that she did not comment on CW‘s credibility at all. Moreover, Pennywell‘s experience did not manifest itself in a bias against Jackson during the course of the deliberations; indeed, she was the only juror “holding out for not guilty” throughout the deliberations. For these reasons, we hold that the circuit court did not abuse its discretion in refusing to grant a new trial based on Pennywell‘s recollection during deliberations of her childhood experience of sexual assault.
E. HRPP Rule 48
In Jackson‘s remaining point of error he does not challenge the fairness of his trial but argues that the circuit court erroneously denied his pre-trial motion to dismiss for violation of
In the instant case, it is undisputed that two hundred seventeen days elapsed between the date of Jackson‘s arrest and the commencement of his trial, exceeding by thirty-seven the one hundred eighty days permissible under
1. The circuit court erred in excluding the twenty-eight day period from the date on which Jackson filed his motion for supervised release through the date on which the motion was heard.
At the time of the hearing on Jackson‘s
However, subsequent to the circuit court‘s ruling on Jackson‘s Rule 48 motion, we held that
a motion for supervised release and/or bail reduction does not address substantive issues that affect thе timing of trial. The motion may be filed or heard at any time—before, during, or even after trial. Thus, excluding time periods attributable to the pendency of such motions for purposes of the
HRPP 48 computation would not advance the underlying policies of prompt processing of cases and maximizing the efficiency of the criminal justice system....Because motions for supervised release and/or bail reduction in no way delay the
commencement of criminal trials, we hold that time periods attributable to such motions are not excludable pursuant to
HRPP 48(c) .
Hoey, 77 Hawaiʻi at 30, 881 P.2d at 517 (citations omitted).
Were Hoey given retroactive application, the time period attributable to Jackson‘s motion for supervised release and/or bail reduction would not be excludable pursuant to
“Although judicial decisions are assumed to apply retroactively, such application is not automatic.” Id. “Implicit in the factors to be considered in determining whether a judicial decision will be applied retroactively is the concept of fairness.” State v. Kekona, 77 Hawaiʻi 403, 410 n. 3, 886 P.2d 740, 748 n. 3 (1994) (Levinson, J., concurring and dissenting) (quoting Ikezawa, 75 Haw. at 220-21, 857 P.2d at 598) (brackets omitted). Because we applied the Hoey rule to vacate Hoey‘s conviction, rather than limiting its application to future appeals, “persuasive federal authority would suggest that we would be obligated to apply the same rule to all other criminal proceedings currently pending in the court system.” Id. (citing Powell v. Nevada, 511 U.S. 79, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994)). This is true for two reasons:
First, the nature of judicial review precludes us from simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new [rules], and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule. Second, selective application of new rules violates the principle of treating similarly situated defendants the same.
Id. (quoting Powell, 511 U.S. at —, 114 S.Ct. at 1283) (citations, quotation marks, ellipsis points, brackets, and emphases omitted).
Jackson filed his notice of appeal on August 12, 1993. We announced our decision in Hoey on September 22, 1994. Thus, Jackson‘s appeal was pending when the new rule—i.e., that time periods attributable to motions for supervised release are not excludable for
We therefore hold that, although the circuit court “simply acted according to the rule as it was interpreted at the time,” Ikezawa, 75 Haw. at 223, 857 P.2d at 599, Powell requires retroactive application of Hoey. Accordingly, we further hold that the trial court erred in excluding from its
2. The circuit court did not err in excluding the fifteen days attributable to defense counsel‘s failure to appear at a pretrial status conference.
Jackson next argues that the circuit court erred in excluding the fifteen days from October 9, 1992, through October 23, 1992, from
We agree with the circuit court‘s conclusion regarding this fifteen day period. As indicated above, the plain language of
3. Because the circuit court erred in denying Jackson‘s HRPP Rule 48 motion to dismiss, we must vacate his convictions and remand for entry of an order dismissing the charges against him, with or without prejudice, in spite of the fact that doing so will likely subvert the goals sought to be achieved by HRPP Rule 48.
Taking into account the twenty-eight days that elapsed during the pendency
of Jackson‘s motion for supervised release and/or bail reduction, which the circuit court improperly excluded, a total of two hundred two non-excludable days11 elapsed from the date of Jackson‘s arrest to the commencement of his trial, a “clear violation of the one hundred eighty day limit mandated by
In the past, when a trial court has improperly denied a defendant‘s motion to dismiss for violation of
Although this approach to dealing with erroneous denials of
The current version of
One way in which these goals are achieved is through the threat of sanctions for violation of
Rule 48(b)‘s sanction of dismissal in criminal cases not tried within the prescribed time frame, unless excludable delay is shown, creates an incentive for trial courts to design and implement efficient and fair procedures to decrease the potential for delay caused by chronic congestion and for the legislature to supply the necessary resources to ensure prompt processing of all criminal cases. Additionally, Rule 48‘s speedy trial requirement also gives the prosecutor an incentive to design screening procedures to ensure that as much as possible those cases that may be disposed of by means other than trial are removed from the criminal justice system as quickly as possible.
9 Haw. App. at 210-11, 831 P.2d at 939 (footnotes omitted). Thus, it is apparent that the threat of dismissal of charges, with or without prejudice, furthers the purposes of
However, when cases have proceeded to trial and guilty verdicts have been returned, vacating appellants’ convictions would not, in many cases, further any of the purposes of
Furthermore, we note that if an appellant can demonstrate that his or her constitutional right to a speedy trial15—the substantive right that
remedy for the violation of an accused‘s [constitutional] right to speedy trial is dismissal with prejudice.” (Quoting State v. Nihipali, 64 Haw. 65, 67 n. 4, 637 P.2d 407, 408 n. 4 (1981); emphasis in original.)). In the instant case, however, it is clear that Jackson‘s constitutional right to a speedy trial was not violated: there was a relatively short time between indictment and trial (two hundred seventeen days), Jackson never made a demand for a speedy trial, and, most importantly, Jackson suffered no actual prejudice as a result of the delay in bringing him to trial. See id. at 419-23, 879 P.2d at 524-28.16
Despite our concerns, in light of the long line of cases that have consistently vacated convictions based on trial courts’ erroneous denials of appellants’
III. CONCLUSION
For the foregoing reasons, we vacate Jackson‘s convictions and remand for entry of an order dismissing the charges against him, with or without prejudice, in the discretion of the circuit court.
February 26, 1996.
LEVINSON, Justice, concurring in amended opinion.*
I agree with the majority that “Jackson received a fair trial, free from reversible error, and that sufficient evidence was presented by the prosecution to support his convictions.” Majority opinion at 74. I also agree with the majority that “the circuit court erred in concluding that the commencement of [Jackson‘s] trial was within the time limits set forth in [Hawaiʻi Rules of Penal
Procedure (HRPP)] Rule 48,” and that, therefore, “we have no choice but to vacate Jackson‘s convictions and remand for entry of an order dismissing the charges against him, with or without prejudice, in the circuit court‘s discretion.” Id.1
I do not, however, share the majority‘s apparent distaste—as if this court were self-administering a dose of castor oil—for the result that we reach today. Rather, I believe that we are simply following the wisdom of State v. Ikezawa, 75 Haw. 210, 857 P.2d 593 (1993), in which this court, citing
I take particular issue with the majority‘s belief that “by vacating Jackson‘s convic-
* This Amended Concurring Opinion corrects page references to the majority opinion filed on February 23, 1996.
Accordingly, neither
I. PRIOR CASE LAW
Citing State v. Lau, 78 Hawaiʻi 54, 60, 890 P.2d 291, 297 (1995), the majority acknowledges that the “constitutional right to a speedy trial” is “the substantive right that
(2) The relief mandated by
(3) Defendants, including Jackson, are entitled to have the “substantive right,” which is codified in
II. IMPLICATIONS OF THE MAJORITY OPINION
I read the majority opinion to imply that, until now, this court‘s application of
Aside from the fact that the Hoey and English II courts cited the very purposes advanced by the majority as constituting the theoretical underpinnings of
In a nutshell, the majority mixes apples and oranges when it seeks to link the redress available to defendants whose “substantive” rights under
III. THE MAJORITY OPINION IMPLIES THAT THE CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, IN THE ABSENCE OF HRPP 48(b), WOULD ADEQUATELY PROTECT THE RIGHTS OF CRIMINAL DEFENDANTS UNDER HAWAIʻI LAW.
Further to its belief that vacating the convictions of defendants whose
Furthermore, we note that if [a defendant] can demonstrate that his or her constitutional right to a speedy trial—the substantive right that
HRPP Rule 48 , through a procedural mechanism that is “separate and distinct” therefrom, seeks to protect—was violated, the [defendant] will be entitled to have his or her convictions vacated and the charges dismissed with prejudice.
Id. at 86 (citations and footnote omitted). The only inference that I can draw from the majority‘s observation is that it suspects, given the constitutional protection,4 that
I will not undertake in this opinion to chronicle the development—with which the majority is as familiar as I—of
What I will undertake in this opinion, on the other hand, is to demonstrate that the appellate case law in this jurisdiction intеrpreting the parameters of the constitutional
right to a speedy trial, as it has evolved over time, has imposed almost insurmountable barriers to the establishment of a constitutional deprivation. I also suggest that this court‘s construction of the constitutional right to a speedy trial would be considerably more expansive than it is, but for the presence of a robust and self-executing rule of court—of our own making—that vindicates the same substantive right. Cf. English I, 61 Haw. at 23, 594 P.2d at 1076 (“there need not be a deprivation of one‘s constitutional right to a speedy trial before [
Recently, in Dwyer, we reaffirmed our adherence to the long-standing formulation of the core analytical framework within which we have evaluated claims of the denial of the constitutional right to a speedy trial:
[W]hether an accused‘s right to a speedy trial has been violated is determined by applying the four-part test articulated in Barker v. Wingo, 407 U.S. 514 [92 S.Ct. 2182, 33 L.Ed.2d 101] (1972). The four factors to be considered are: (1) length of the delay; (2) the reasons for the delay; (3) the defendant‘s assertion of his or her right to a speedy trial; and (4) prejudice to the defendant. Id. at 530 [92 S.Ct. at 2192.]
Dwyer, 78 Hawaiʻi at 371, 893 P.2d at 799. In English I, we quoted Barker, 407 U.S. at 533, 92 S.Ct. at 2193, for the proposition (the ”Barker/English I proposition“) that “none of these four factors is to be regarded ‘as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial,’ but rather, ‘they are related factors and must be considered together with such other circumstances as may be relevant.‘” English I, 61 Haw. at 16 n. 6, 594 P.2d at 1073 n. 6; see also Mata, 1 Haw. App. at 39, 613 P.2d at 925 (“The presence or absence of any single factor is not dispositive.” (Citing Barker, 407 U.S. at 533, 92 S.Ct. at 2193)).
Notwithstanding the lip service paid to the Barker/English I proposition in Lau, 78 Hawaiʻi at 62, 890 P.2d at 299, and Wasson, 76
Moreover, even though the “length of delay serves as a triggering mechanism to the Barker analysis,” Nihipali, 64 Haw. at 68, 637 P.2d at 411, and “delays of at least six months [are] sufficient to warrant an inquiry into the other Barker factors,” Lau, 78 Hawaiʻi at 63, 890 P.2d at 300, the length of the delay—the first Barker factor—is virtually insignificant with respect to the bottom line. See, e.g., Dwyer (finding no constitutional deprivation despite delay in excess of thirty-two months); Lau (finding no constitutional deprivation despite twenty-four month delay); Wasson (finding no constitutional deprivation despite delay of twenty-six and one-half months).
The second Barker factor—the reasons for the delay—is equally insignificant. See, e.g., Dwyer (finding no constitutional deprivation despite holding that application of the factor weighed in defendant‘s favor); Lau (same); Wasson (same).
This court‘s view of the third Barker factor—assertion of the right to a speedy trial—has undergone an especially curious metamorphosis. In Nihipali, 64 Haw. at 70 n. 5, 637 P.2d at 412 n. 5, we articulated the intuitive notion that a defendant‘s act of filing a motion to dismiss on constitutional speedy trial grounds is “tantamount to an assertion of his [or her] right to a spеedy trial.” (Citations omitted.) That is no longer the case. Now, “unless the motion to dismiss is accompanied in some way by an alternative demand, even if made implicitly, for a speedy
trial, it does not necessarily indicate that the defendant actually wants to be tried immediately.” Dwyer, 78 Hawaiʻi at 371-72, 893 P.2d at 799-800 (quoting Wasson, 76 Hawaiʻi at 421, 879 P.2d at 526). In other words, if a defendant “fails to identify any other conduct evidencing a desire to be brought to trial immediately, we [will] not [be] convinced that his [or her] motion to dismiss on speedy trial grounds [is] the equivalent of a demand for a speedy trial.” Id. at 372, 879 P.2d at 800. “Thus, in the absence of some other indication that a defendant making a motion to dismiss actually desires a speedy trial, the motion, standing alone, does not weigh in his or her favor.” Wasson, 76 Hawaiʻi at 421, 879 P.2d at 526.
We assess the fourth Barker factor—actual prejudice to the defendant by virtue of pretrial delay—in light of
“the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his [or her] case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.”
Lau, 78 Hawaiʻi at 64, 890 P.2d at 301 (quoting Barker, 407 U.S. at 532, 92 S.Ct. at 2193).
The first interest—preventing oppressive pretrial incarceration—speaks for itself.
As to the second interest—minimizing the accused‘s anxiety and concern—, we have had the following to say: “[T]he government will prevail unless the defendant offers objective, contemporaneous evidence of anxiety, such as prompt and persistent assertion of the desire for a speedy trial coupled with a demonstrable basis for the court‘s believing the delay is traumatic.” Id. at 65, 890 P.2d at 302 (quoting State v. Ferraro, 8 Haw. App. 284, 300, 800 P.2d 623, 632 (1990)). In this
With respect to the “most serious” interest—limiting the possibility that the defense will be impaired—, we have held that the mere possibility or probability that “any witnesses will ... be unable to recall accurately the events preceding [a defendant‘s] arrest due to the passing of time” does not demonstrate constitutionally prejudicial pretrial delay. Lau, 78 Hawaiʻi at 65, 890 P.2d at 302. It would be unhealthy, I think, to hold one‘s breath while waiting for a case of constitutionally prejudicial pretrial delay based on this standard.
How likely is it, I аsk, that this court would have construed the constitutional right to a speedy trial so parsimoniously if there had been no
And if this court renders
IV. CONCLUSION
Based on the foregoing analysis, I oppose the dilution of the protections afforded by
respect to the construction of the constitutional right to a speedy trial. See id. As noted supra at 11 of this opinion, however, I do suggest that the presence of a robust and self-executing
Notes
(1) A person commits the offense of sexual assault in the second degree if:
(a) The person knowingly subjects another person to an аct of sexual penetration by compulsion[.]
Because I agree with the majority‘s holding, set forth at section II.A. of the majority opinion, that Jackson‘s convictions were supported by substantial evidence, a dismissal of the charges without prejudice and a subsequent reinstatement of them would not compromise Jackson‘s constitutional right against double jeopardy. See State v. Malufau, 80 Hawaiʻi 126, 135, 906 P.2d 612, 621 (1995).(1) A person commits the offense of sexual assault in the fourth degree if:
(a) The person knowingly subjects another person to sexual contact by compulsion or causes another person to have sexual contact with the actor by compulsion[.]
For the reasons discussed in section III. of this opinion, I believe that outright repeal ofthat is ‘separate and distinct,’ ... seeks to protect[.]” Majority opinion at 34. Quoting State v. Hoey, 77 Hawaiʻi 17, 29, 881 P.2d 504, 516 (1994), and citing State v. Coyaso, 73 Haw. 352, 356, 833 P.2d 66, 68 (1992), the majority further acknowledges that the purposes of
Consistent with the foregoing, the uniform precedent of the appellate courts in this jurisdiction has reflected the following point of view:
(1)
my view, substantially destroy
(b) By Court. Except in the case of traffic offenses, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months from:
(1) the date of arrest or of filing the charge, whichever is sooner, on any offense based on the same conduct or arising from the same criminal episode for which the arrest or charge was made[.]
....
(c) Excluded Periods. The following periods shall be excluded in computing the time for trial commencement:
(1) periods of delay resulting from collateral or other proceedings concerning the defendant, including ... hearings on pretrial motions ... ;
....
(3) periods of delay resulting from a continuance granted at the request or with the consent of the defendant or [the defendant‘s] counsel;
....
(5) periods of delay resulting from the absence or unavailability of the defendant; [and]
....
(8) other periods of delay for good cause.
As the Intermediate Court of Appeals noted in State v. Kahawai, 9 Haw. App. 205, 210-11, 831 P.2d 936, 939 (1992), cert. denied, 73 Haw. 627, 834 P.2d 1315 (1992),(Footnotes omitted). Although I agree with the majority that “[o]ur role in the criminal justice system, both when we decide cases on appeal and when we promulgate rules pursuant to our statutory authority ... is primarily to ensure that the process is fair,” majority opinion at 86 n. 14, the majority‘s attribution to me of the notion that
(1) A person commits the offense of sexual assault in the first degree if:
(a) The person knowingly subjects another person to an act of sexual penetration by strong compulsion[.]
The sixth amendment to the United States Constitution provides in relevant part that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” Article I, section 14 of the Hawaiʻi Constitution (1978) contains the identical language.(1) A person commits the offense of sexual assault in the third degree if:
....
(e) The person knowingly, by strong compulsion, has sexual cоntact with another or causes another person to have sexual contact with the actor[.]
Because I am regrettably alone in concurring separately, the majority is correct that I am expressing only my opinion in this regard. See majority opinion at 86 n. 16. Nevertheless, I hasten to add that I share the majority‘s confidence that it has always “diligently attempted” in the past—as it will continue to strive in the future—to discharge the task of constitutional interpretation with integrity and in good faith. See id. I certainly do not imply that this court has ever “casually disregarded” its duty withIf there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the circuit court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.
61 Haw. at 23, 594 P.2d at 1076. This rule was based on a version of Rule 48(b) of the Federal Rules of Criminal Procedure and was “regarded as a restatement of the inherent power of the court to dismiss a case for want of prosecution.” State v. Mageo, 78 Hawaiʻi 33, 36, 889 P.2d 1092, 1095 (App. 1995) (quoting English, 61 Haw. at 23, 594 P.2d at 1076). The current version of the rule, however, bears little resemblance to the past version and, based on its genesis in the ABA Standards Relating to Speedy Trial,
Dismissal without prejudice cannot be considered a serious sanction. In effect it rewards unacceptable delay with further delay. It is the procedural equivalent of the fox guarding the hen house.... Without the sanction of dismissal with prejudice as the usual or preferred result, the prosecution would have no incentive to move to trial to avoid the sanction and the defense would have no incentive to move to trial in order to take advantage of the sanction.
R. Misner, Speedy Trial Federal and State Practice 300 (1983).We recognize, of course, that this court is not infallible, see, e.g., State v. Kwak, 80 Hawaiʻi 297, 909 P.2d 1112 (1995) (opinion on motion for reconsideration), and that it is possible that we have misconstrued the right to a speedy trial guaranteed by article I, section 14 of the Hawaiʻi Constitution. However, we are confident that when called upon to interpret the constitutional right to a speedy trial the majority of the members of this court have diligently attempted to perform their duty of ascertaining the intent of the framers and the people who adopted the constitutional provision, see Convention Center Authority v. Anzai, 78 Hawaiʻi 157, 167, 890 P.2d 1197, 1207 (1995) (“[W]e have long recognized that the Hawaiʻi Constitution must be construed with due regard to the intent of the framers and the pеople adopting it and that the fundamental principle in interpreting a constitutional provision is to give effect to that intent.” (Citations, quotation marks, and brackets omitted.)), and have not casually disregarded that duty merely because of the presence of
If the committee considers an amendment whereby dismissal with prejudice would be the sole remedy for a violation of the rule, it might consider other accompanying amendments. For example, it might consider requiring defendants to demonstrate that they have suffered actual prejudice as a result of the delay before being entitled to such a remedy. With an “actual prejudice” requirement, the rule would more closely comport with the constitutional right to a speedy trial and thereby more effectively ensure compli-
ance with that right. The committee might also consider lengthening the time limits within which cases must be brought, particularly with respect to more serious offenses, so that the societal interest in punishing law violators is not compromised.The examples of possible amendments set forth above are by no means intended to constitute an exhaustive list of amendments that the committee might consider. They are presented merely to demonstrate that there are a variety of ways in which the rule might be improved.