State v. Visintin.State v. Visintin.
A protracted pretrial period can hinder the accurate determination of a case as evidence dissipates, as well as cause anxiety and hardship to a defendant awaiting the disposition of criminal charges. Thus, the Hawaiʻi and U.S. Constitutions and our court rules grant an accused the right to a prompt adjudication, and a case generally must be dismissed if a defendant is held to answer for a period exceeding a prescribed time limit or an unreasonable amount of time without a trial ensuing.
In this case, the State was not prepared to proceed with a prosecution on the date of the defendant‘s initial court appearance. In a process referred to as a calendar call, the court read aloud a list of defendants against whom no charges had been filed before stating orally that the defendants were free to go and that any bail or bond they posted would be discharged. Seven months later, the defendant was indicted for the same crime for which he had been arrested, and he moved to dismiss the case based on the State‘s delay in bringing the prosecution.
We now hold that, because no written order or notice of the ruling was filed effectively discharging the defendant‘s bail, he remained held to answer for the alleged crime underlying his arrest and the case must be dismissed under our court rules for this reason. We further hold that the Intermediate Court of Appeals erred by considering the legal merits of the defendant‘s constitutional speedy trial challenge when the trial court failed to make the factual findings necessary for review. Accordingly, we remand the case for dismissal with or without prejudice as the trial court determines appropriate under our court rules. We also set forth applicable legal principles for the trial court‘s evaluation of the defendant‘s constitutional speedy trial challenge if the dismissal under our court rules is determined to be
I. BACKGROUND
A. Events on August 7, 2012 and Visintin‘s Arrest
On August 7, 2012, around 2:40 a.m., Officer Brian Silva of the Kauai Police Department was on uniform patrol when he saw a person running across the street to a facility that appeared to be closed. Upon turning on his cruise lights, Officer Silva saw the figure of a person in the bushes of the facility‘s driveway. Officer Silva exited his vehicle, ordered the person to come out of the bushes, and asked the person for identification. Officer Silva observed that the person was breathing heavily and sweating profusely and that there was an odor of alcohol emitting from the person. The person, who was identified as Shawn Visintin, provided Officer Silva with his driver‘s license from the State of Montana.
While Visintin was removing his license from his wallet, Officer Silva saw a concealed weapons permit in the wallet. Suspecting that Visintin may be armed, Officer Silva asked him if he was carrying any weapons. After Visintin responded that he had a handgun, Officer Silva conducted a pat-down search of Visintin and discovered a semi-automatic .45 caliber handgun in the back part of the waistband of Visintin‘s pants. Officer Silva then recovered the handgun, which was unloaded, and placed Visintin under arrest for place to keep pistol or revolver in violation of Hawaii Revised Statutes (HRS)
B. Events Following Visintin‘s Arrest
Visintin‘s bail was set at $10,000. Upon posting bail on August 7, 2012, Visintin was given a “Bail/Bond Receipt, Acknowledgment, and Notice to Appear” form, indicating that he was to appear in district court on September 5, 2012.2
A “calendar call” was conducted in the District Court of the Fifth Circuit (district court) on September 5, 2012.4 During this proceeding, the district court called the names of those persons against whom no complaint had been filed, including Visintin, who was not present.5 The court announced that these persons were free to go and that any cash bail they posted would be refunded or their bonds would be discharged. However, the record does not contain a filed document or calendar notation indicating that Visintin‘s bond was discharged, that the case was dismissed, or that the case was addressed by some other disposition. Nor does the record show that Visintin received notice of the outcome of the September 5, 2012 proceeding.
More than seven months later, on April 25, 2013, a grand jury indicted Visintin on one count of place to keep pistol or revolver in violation of
In an email dated April 30, 2013, the prosecutor informed Visintin‘s counsel of the indictment and the outstanding bench warrant for the arrest of Visintin, who had returned to Montana following his release from custody. The prosecutor suggested that Visintin fly back to Kauaʻi rather than be arrested and extradited. Defense counsel replied by email and inquired whether Visintin‘s case could be resolved at arraignment. In a response dated May 1, 2013, the prosecutor stated that she would provide an answer at a later time as she was getting ready for a trial scheduled the following week. Three weeks later, in an email dated May 24, 2013, the prosecutor asked defense counsel whether Visintin was planning on returning to Kauaʻi to turn himself in, adding that she would not discuss a plea offer until Visintin was arrested on the warrant.
On May 31, 2013, the State of Montana filed a “Fugitive from Justice Complaint” (fugitive complaint) in response to the warrant issued by the circuit court. In the fugitive complaint, a Montana County Attorney stated that Visintin was wanted in Hawaiʻi, Fifth Circuit, for the two indicted offenses; that a warrant had been issued for Visintin‘s arrest; that Visintin “ha[d] fled from justice or ha[d] been convicted of crimes in that state and ha[d] escaped from confinement or ha[d] broken the terms of his bail, probation or parole“; and that a request had been made by the authorities in Hawaiʻi for his arrest. (Capitalization omitted.) The fugitive complaint requested the issuance of a warrant from the Montana court commanding law enforcement officers “to apprehend the said fugitive” and bring him to court.
Visintin subsequently returned to Kauaʻi voluntarily and on August 1, 2013, filed a motion in the circuit court to recall the bench warrant issued after his indictment. The court denied Visintin‘s request to be released on recognizance but reduced the bail amount from $10,000 to $100.9 Visintin posted bail on August 6, 2013, and he was arraigned the same day.
C. Motion to Dismiss
1. Visintin‘s Motion and the State‘s Opposition
On August 20, 2013, Visintin filed a “Motion to Dismiss Based on Rule 48, Speedy Trial, Right to Bail and Due Process” (motion to dismiss) in the circuit court. In his motion, Visintin argued that the time limit set forth in
Visintin contended that the delay, which doubled the period allowed under the rule, was entirely attributable to the State and that the State had provided no good cause for the delay. Thus, Visintin concluded that
Visintin also contended that his constitutional right to speedy trial, which attached at his initial arrest, was violated. He maintained that the State was entirely responsible for the delay and had provided no valid reason for it, that the delay was presumptively prejudicial, that he suffered tangible losses to his employment, that “memories have faded and even police witnesses who ‘searched the area for criminal activity with negative results’ have apparently retired,” and that he had always demanded a speedy trial. Visintin also submitted that the calendar call procedure does not provide a mechanism by which a defendant could assert the right to speedy trial. Thus, Visintin argued, the violation of his constitutional right to speedy trial supported the dismissal of his case with prejudice.
Lastly, Visintin asserted that the State had thwarted the purpose of bail, which is to ensure that the defendant is present at trial while also affording the defendant freedom from harassment and confinement. Although
Opposing Visintin‘s motion to dismiss, the State described the “unique” procedure employed in the district court of the Fifth Circuit when the State does not file a charging document by an established deadline.12 The State contended that it did not charge Visintin as it lacked adequate information to do so because the police reports were not forwarded to the prosecutor‘s office until the date when Visintin‘s bond was discharged. Since no case numbers are created unless a charging document has been filed, the State asserted, there is no readily available mechanism to file a written dismissal of a case. Therefore, the State submitted, the effect of the call list is a “de facto dismissal of the cases,” and the period from the day after Visintin‘s bond was discharged until he was indicted was excluded from the time limit calculation under
As to the claim of a constitutional speedy trial violation, the State argued that Visintin did not provide sufficient facts demonstrating actual prejudice and that he had not previously asserted his right to a speedy trial. Upon balancing the four factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), the State concluded that Visintin‘s right to speedy trial under the federal and state constitutions was not violated.
Finally, the State submitted that Visintin‘s argument as to excessive bail was without merit because the State had not charged him by the calendar call date, and his bond was discharged. Any argument by Visintin that he did not receive notice of the dismissal, the State added, was misplaced given that defense counsel knew before the calendar call proceeding that no complaint would be filed.
2. Hearing on the Motion to Dismiss
At the hearing on Visintin‘s motion, the State requested that the court take judicial notice that, inter alia, the prosecutor assigned to Visintin‘s case was in trial from December 3 to December 11, 2012, and from January 7, 2013, to March 6, 2013. The court questioned whether the prosecutor‘s work schedule was a sound basis for the delay, stating that the court was not aware of any cases in which the prosecutor‘s workload justified a delay in bringing a defendant to trial.13
The State then called Vera Tabe, court administrator of the Fifth Circuit, to testify about the “calendar call procedure” that the district court of the Fifth Circuit has adopted. Tabe testified that, after a defendant posts bail or bond or is released on his or her own recognizance, the district court receives an original BBRA from the Kauai Police Department, which is file-stamped and placed in a “pending file” (a lateral drawer). A criminal number is not assigned to a case until a complaint is filed by the prosecutor‘s office. When the State does not file a charging document by 12:00 p.m. on Monday of the week of the scheduled court date, the case is placed on the calendar call list, an internal document that notes the defendant‘s name, charge, and method of release.
At the scheduled proceeding, Tabe continued, the judge reads the names on the call list and informs the defendants that no formal charges have been filed and that they
Tabe explained that no document is filed by either the court or the clerk as to any action taken regarding the bail or bond and no notation is made on the calendar call list regarding the discharge. Additionally, Tabe stated that no written notice is provided to the defendant or defense counsel when a bond is discharged and nothing is sent to the bonding company.
To Tabe‘s knowledge, the State has never attempted to request a written dismissal of a case that has been placed in the pending file, although defendants commonly file motions under the bail/bond receipt number seeking permission to travel. Tabe acknowledged that, after the case is placed on the calendar call list, circuit court staff “[do not] know what actually happens to the case.”14 These unwritten “court rules” relating to the calendar call procedure, Tabe explained, are based on an agreement between the courts and the prosecutor‘s office.
Following Tabe‘s testimony, the circuit court denied Visintin‘s motion to dismiss, relying solely on
D. No Contest Plea and Circuit Court Judgment
On September 16, 2013, Visintin pleaded no contest to the charge of place to keep pistol or revolver, which plea was made conditional on his right to appeal any pretrial rulings, and the State dismissed the unregistered firearm charge.16 The court sentenced Visintin to five years of probation, with a condition of sixty days in jail in addition to time previously served. The circuit court entered its judgment of guilty conviction and probation sentence on January 30, 2014.17
II. APPEAL
Visintin timely appealed to the Intermediate Court of Appeals (ICA) from the circuit court‘s denial of the motion to dismiss and the judgment. In a published opinion, the ICA vacated the circuit court‘s judgment and remanded the case to the circuit court for dismissal, with or without prejudice, as determined by that court pursuant to
The ICA determined that, based on the plain language of
In addition, the ICA determined that the calendar call procedure should not be construed as a de facto dismissal of Visintin‘s case because it would contravene the requirements of
Accordingly, the ICA held that the circuit court was required to dismiss the charges pursuant to
Turning to the constitutional speedy trial challenge, the ICA found that the circuit court had not addressed Visintin‘s constitutional speedy trial right and thus had implicitly rejected it when the court denied Visintin‘s motion to dismiss on
As to Visintin‘s final contention on appeal, the ICA pointed out that Visintin provided no authority for the assertion that a defendant whose right against excessive bail has been violated is entitled to dismissal of criminal charges. Id. at 143, 414 P.3d at 195. The ICA therefore held that “there is no independent basis for dismissing the criminal charges against Visintin based on his claim of excessive bail.” Id.
Both the State and Visintin filed applications for writs of certiorari from the ICA‘s decision. We accepted both applications.
A trial court‘s findings of fact (FOFs) in deciding an HRPP Rule 48(b) motion to dismiss are subject to the clearly erroneous standard of review. . . . However, whether those facts fall within HRPP Rule 48(b)‘s exclusionary provisions is a question of law, the determination of which is freely reviewable pursuant to the “right/wrong” test.
State v. Samonte, 83 Hawaiʻi 507, 514, 928 P.2d 1, 8 (1996).
This court reviews questions of constitutional law under the right/wrong standard. State v. Davis, 133 Hawaiʻi 102, 111, 324 P.3d 912, 921 (2014) (citing State v. Jenkins, 93 Hawaiʻi 87, 100, 997 P.2d 13, 26 (2000)).
IV. DISCUSSION
A. State‘s Application for Writ of Certiorari
On certiorari, the State contends that the contested period was excludable under
1. The Period Between the Calendar Call Proceeding and the Indictment Date is not Excluded under HRPP Rule 48(c)(6)
Under
The ICA in this case correctly determined that the district court′s calendar call procedure cannot be construed as a de facto dismissal because it would contravene the plain language of
But this reasoning is predicated on the incorrect assumption that Visintin was in fact no longer held to answer following the calendar call proceeding. Although it is true that, under our precedents, the
That a written order must be filed in this context--or at the very least a written notice of entry of the decision or ruling--is indicated by the plain language of the HRPP.
After the decision or ruling of the court following a hearing on a motion, the clerk shall note the decision or ruling on the docket. The filing of the written decision or ruling, or in the event of an oral decision or ruling, the filing of the written notice of entry of the decision or ruling, in the office of the clerk constitutes entry of the order. The decision or ruling or notice of entry shall be signed by the judge or by the clerk, if the judge so directs, provided that for purposes of this rule, an oral order granting an oral motion is entered when the court′s oral order is entered by the clerk on the electronic docket.
(Emphasis added.) The calendar call proceeding operates as a hearing on the State′s motion to refund bail or discharge a bond and to release the defendant outright. See Motion, Black′s Law Dictionary (10th ed. 2014) (“A written or oral application requesting a court to make a specified ruling or order.”). Alternatively, the proceeding may be viewed as a hearing on the court′s own motion or a joint motion of the court and the State. Regardless of whom the motion is viewed as originating from,
Sound policy considerations underlie
Despite the fact that the earlier posted bond had been discharged because the prosecutor was unprepared to proceed with the case, the circuit court′s outstanding warrant resulted in Montana issuing a “fugitive” warrant against Visintin. Visintin′s life was subject to significant upheaval when he was arrested by Montana law enforcement as a fugitive from justice, incarcerated, and again required to post bail. At a minimum, had there been a written order or notice of entry discharging Visintin′s initial bond and formally releasing him from custody, the issuance of the fugitive warrant in this case may have been avoided.
Additionally, were we to hold that the calendar call proceeding was a legally effective order, the absence of a written order or notice of entry of the ruling would force a person released pursuant to the procedure to obtain the transcript or recording of the proceeding to acquire documentation that he or she is no longer being held to answer for the crime underlying the person′s arrest. A defendant should not be required to take such measures to obtain information affecting one′s fundamental liberty that may easily be relayed through a written order or notice of entry. Nor should the defendant, counsel, or the public be required to rely upon a court′s verbal statements indicating that a felony case will not be going forward or that the restraints of bail conditions no longer apply.
Further compounding the problematic nature of the calendar call procedure is that the procedure itself is unwritten and thus not readily accessible to public understanding or scrutiny except to those with inside knowledge.23 Pro se defendants or those with counsel unfamiliar with the Fifth Circuit′s “unique” procedure are unlikely to understand the legal significance the procedure is intended to hold without a written document, leaving them uninformed as to the status of the criminal claim against them.
The State argues that requiring a written order to discharge bail will leave it with no established method of disposing of a case under these circumstances. It is not possible to file a written bail discharge order before a written complaint is filed, the State contends, because there is no case number under which to file the order. But the filing of written orders prior to formal charging is both routine and expressly authorized under our court rules.
(2) PROBABLE CAUSE DETERMINATION UPON ARREST WITHOUT A WARRANT. As soon as practicable, and,
Rule 45 notwithstanding, not later than 48 hours after the warrantless arrest of a person held in custody, a district judge shall determine whether there was probablecause for the arrest. . . . If probable cause is found as aforesaid, an appropriate order shall be filed with the court as soon as practicable. If probable cause is not found, or a proceeding to determine probable cause is not held within the time period provided by this subsection, the arrested person shall be ordered released and discharged from custody.
(Emphases added.) Thus, this rule provides that when a person has been arrested without a warrant and remains in custody, the court shall, no later than forty-eight hours after the arrest, determine whether there was probable cause for the arrest. If probable cause is found, the court is required to file an order as soon as practicable. Similarly, if probable cause is not found or a proceeding to determine probable cause is not held within the time provided by
This authority of the district court to issue orders prior to the filing of a charge is also recognized in
In summary, because the calendar call procedure involves matters with significant and consequential effects, a verbal directive that is not memorialized is ineffective as an “order.” To hold otherwise would create great uncertainty by denying future courts, defendants, and the public a definitive record of proceedings. And, as this case demonstrates, the absence of a written order or notice of entry affects the integrity of the procedure by which judicial warrants issue and hampers a court′s duty to promote a fair process. This is why the filing of a written order--or at the very least a written notice of entry--is both permitted and explicitly called for under our court rules.24
Because there was no written order or notice of entry of an oral order discharging Visintin′s bond and releasing him outright, Visintin remained held to answer for purposes of the
2. The Period Between the Calendar Call Proceeding and the Indictment Date is not Excluded under HRPP Rule 48(c)(8)
The State contends in the alternative that the period between the calendar call proceeding and the date of Visintin′s indictment is excluded based on good cause.
On certiorari, the State argues that Visintin′s failure to appear at the scheduled court proceeding constitutes good cause to exclude the delay between the calendar call proceeding and the date of Visintin′s indictment under
In State v. Choy Foo, 142 Hawaiʻi 65, 71-72, 414 P.3d 117, 123-24 (2018), the defendant argued that his appearance without counsel at arraignment was not an unanticipated circumstance constituting good cause. We agreed, holding that it was “‘reasonably foreseeable′ that many defendants will make their initial appearance in district court without an attorney.” Id. at 76, 414 P.3d at 128. Similarly, it is not an unanticipated circumstance that many defendants will not appear at the calendar call given that, under the system that has been established in the Fifth Circuit, there is no consequence for a defendant who does not appear at the calendar call.
Moreover, as discussed above, the calendar call procedure would not have resulted in the stopping of the
B. Visintin′s Application for Writ of Certiorari
Visintin contends on certiorari that the circuit court erred in denying his constitutional speedy trial motion and that his right against excessive bail was violated, which should have resulted in the dismissal of the criminal charges against him.
1. Speedy Trial
The
As to the first factor, length of delay, the ICA held in this case that the more-than-twelve-month period between Visintin′s arrest and the filing of the motion to dismiss was sufficient to warrant inquiry into the other Barker factors. State v. Visintin, 142 Hawaiʻi 126, 141, 414 P.3d 178, 193 (App. 2018). With regard to the second factor, reasons for the delay, the ICA held that the State′s proffered explanations--the assigned prosecutor′s unavailability and the leadership change at the prosecutor′s office--were not “overwhelming justifications” but nonetheless provided “a reasoned basis for the delay and are weighted less heavily.” Id. The ICA thus concluded that the second factor weighed slightly in favor of the State. Id. The ICA also determined that a portion of the delay, which spanned several months, was attributable to the time required to bring Visintin back to Hawaiʻi from Montana and was reasonable. Id. Turning to the third factor, assertion of the right to a speedy trial, the ICA held that this factor weighed in favor of the State because, other than the motion to dismiss, the record lacked a showing that Visintin actually desired a speedy trial. Id. at 141-42, 414 P.3d at 193-94.
Lastly, with respect to the fourth factor, prejudice to the defendant, the ICA held that Visintin did not submit “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 142, 414 P.3d at 194 (quoting State v. Ferraro, 8 Haw. App. 284, 300, 800 P.2d 623, 632 (1990)). Further, the ICA determined that Visintin did not suffer oppressive pretrial incarceration, that he only alleged the possibility of prejudice--which was insufficient to establish a violation of the constitutional speedy trial right, and that the twelve-month period of delay was not “exceedingly long.” Id. Accordingly, the ICA held that Visintin′s constitutional right to a speedy trial had not been violated. Id.
a. The ICA Erred in Considering Visintin′s Constitutional Speedy Trial Claim on the Merits
After determining that the circuit court “implicitly rejected” Visintin′s argument regarding the right to a speedy trial when it denied his motion to dismiss, the ICA considered the merits of Visintin′s constitutional speedy trial challenge. Visintin, 142 Hawaiʻi at 140-42, 414 P.3d at 192-94. However, nothing in the record indicates that the circuit court considered Visintin′s argument regarding his constitutional right to a speedy trial, let alone evaluated the four Barker factors. Instead, the circuit court relied solely on
Additionally, even assuming the circuit court considered Visintin′s argument regarding a constitutional speedy trial violation, the court neither issued a written order setting forth its findings or conclusions with respect to the issue nor did it state any findings or conclusions on the record when it denied the motion.
This court has repeatedly stated that “cases will be remanded when the factual basis of the lower court′s ruling cannot be determined from the record.” See, e.g., State v. Anderson, 67 Haw. 513, 514, 693 P.2d 1029, 1030 (1985) (remanding to the lower court after determining that the lower court granted the motion to suppress without having made any findings of fact); State v. Hutch, 75 Haw. 307, 331, 861 P.2d 11, 23 (1993) (holding that both trial courts committed reversible error in denying the defendant′s
The ICA nevertheless considered Visintin′s argument as to his constitutional speedy trial challenge. The ICA evaluated each of the four Barker factors and made a number of implicit or express factual findings in determining whether the factors weighed in favor of or against Visintin.
For example, regarding the second Barker factor, reasons for the delay, the ICA found that the State′s proffered justifications--that the prosecutor was unavailable due to her trial schedule and that it was an election year--provided “a reasoned basis for the delay.” Visintin, 142 Hawaiʻi at 141, 414 P.3d at 193. The ICA also determined that a portion of the delay was due to the time needed to bring Visintin back to Hawaiʻi from Montana following his indictment, which was “reasonable.” Id. The circuit court, however, did not make any specific findings that these reasons were the actual causes of the delay. And, insofar as the ICA suggested that Visintin was responsible for the delay for his return to Hawaiʻi from Montana, this conclusion was contradicted by the circuit court′s factual findings in ruling upon Visintin′s
Now, once the indictment is issued on April 25th to the period of August 6th, because the defendant is free to leave at that point in time, you cannot now say the defendant is making himself unavailable. It would be inconsistent for the Court to have that type of ruling. So the period between April 25th to August 6th is chargeable to the State.
The ICA never determined that this finding was clearly erroneous, and the circuit court is certainly better positioned than an appellate court to make factual findings as to the causes of delay and the allocation of responsibility between the parties.
Similarly, the ICA specifically found as to the fourth factor, prejudice to the defendant, that Visintin did not suffer oppressive pretrial incarceration, that he did not suffer anxiety, and that he had only alleged the possibility of prejudice, which the ICA stated was insufficient to establish a violation of the speedy trial right. Visintin, 142 Hawaiʻi at 142, 414 P.3d at 194. However, the circuit court itself did not make any findings as to whether Visintin had established oppression, anxiety, or prejudice. This was of particular import here because Visintin alleged that he had suffered a number of extreme, potentially anxiety-inducing circumstances that were arguably caused by the State′s delay in bringing the case. Visintin asserted that he was subject to multiple arrests, including one in which heavily armed Marshals forced their way into his family home in Montana and forcibly detained Visintin and his mother. Visintin further contended that he endured false accusations of being a fugitive and was required to post bail multiple times. And the email exchanges between the deputy prosecutor and Visintin′s counsel may suggest that Visintin was very concerned as to the impact of the prosecution on his prospects of becoming a police officer, a job for which he had invested much training and preparation. Whether these events occurred, were caused by the delay, and resulted in Visintin experiencing great anxiety were factual matters that should have been initially ascertained by a trial court and not by a court on appeal.
Thus, because “it is not the role of the appellate court, in the first instance, to make determinations” as to factual issues, the ICA erred in considering Visintin′s constitutional speedy trial argument without the circuit court having made any findings of fact. Rodrigues, 122 Hawaiʻi at 238, 225 P.3d at 680.
b. The ICA Applied Incorrect Principles of Law
In improperly considering Visintin′s constitutional speedy trial claim, the ICA did not
i. Reasons for the Delay
This court has stated, in accordance with the U.S. Supreme Court′s decision in Barker, that different weights are assigned to different reasons in determining whether a delay of trial violates a defendant′s constitutional speedy trial right. Lau, 78 Hawaiʻi at 63, 890 P.2d at 300 (citing Barker, 407 U.S. at 531). “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.” Id. (quoting Barker, 407 U.S. at 531). “A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. (quoting Barker, 407 U.S. at 531).
When a defendant contributes in substantial part to the delay, we have held that the second Barker factor weighs in favor of the prosecution. In State v. White, for instance, the defendant′s various pretrial motions resulted in a delay of approximately four and a half months. 92 Hawaiʻi 192, 203, 990
P.2d 90, 101 (1999). Although the State‘s requests to continue trial resulted in a four-month delay, the White court determined that the State‘s requests did not appear to have been a deliberate attempt to delay trial. Id. Because the defendant was responsible for a substantial part of the delay, the court concluded that the second Barker factor weighed in favor of the State. Id. at 204, 990 P.2d at 102.
By contrast, when a delay results from a more neutral reason, we have held that the second Barker factor weighs in favor of the defendant. In Lau, the defendants contended that the reasons for the delay were court congestion and the State‘s determination to try every case involving a charge of driving under the influence of an intoxicant. 78 Hawai‘i at 63, 890 P.2d at 300. In response, the State conceded that court congestion was present but argued that the evolution of caselaw in Hawai‘i constituted “unique circumstances” that led to the backlog of cases. Id. The Lau court acknowledged that the State‘s contention had some merit, but found that there was no indication that the defendants were responsible for the delay in bringing the case to trial. Id. “[W]hile court congestion is a ‘more neutral’ reason that ‘counts less heavily against the State than would a deliberate delay,‘” the court held, “it nevertheless still tips the scales in favor of [the defendants],since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. (quoting Wasson, 76 Hawai‘i at 420, 879 P.2d at 525). Thus, the Lau court concluded that the second Barker factor weighed in favor of the defendants. Id.
Even when the defendant is partially responsible for the delay, this court has held that the second Barker factor may tip in favor of the defendant. In State v. Dwyer, the defendant‘s trial was continued three times. One of the continuances was due to the defendant‘s counsel falling ill, and one was at the request of the State because it was unable to proceed to trial.26 78 Hawai‘i 367, 371, 893 P.2d 795, 799 (1995). The Dwyer court found that there was no attempt by the State to deliberately delay the defendant‘s trial. Id. Nonetheless, it concluded that, on balance, the reasons-for-the-delay factor weighed in favor of the defendant. Id. Similarly, in Wasson, both the State and the defendant shared some responsibility for the delay in the defendant‘s trial. 76 Hawai‘i at 419-20, 879 P.2d at 524-25. The reasons for the delay included court congestion, two failures to appear by the defendant, and the defendant‘s two motions for continuances. Id. This court held that, while court congestion was a “more neutral” reason that counted less heavily against the State and was offset
In this case, although the ICA determined that the State was primarily responsible for the delay, it held that the reasons-for-the-delay factor weighed slightly in favor of the State. Visintin, 142 Hawai‘i at 141, 414 P.3d at 193. The ICA held that the State‘s proffered justifications--that the assigned prosecutor was unavailable and that the prosecutor‘s office underwent a change in leadership--provided “a reasoned basis for the delay and are weighted less heavily.” Id. The ICA did not directly state that Visintin was responsible for any portion of the delay between his arrest on August 7, 2012, and his arraignment on August 6, 2013, though the ICA appeared to suggest the delay in returning Visintin to Hawai‘i to stand trial may be attributable to him.27 See id.
In Dwyer, the State moved to continue the trial because it was unable to proceed with the case, and we held that the second Barker factor tipped in favor of the defendant. 78 Hawai‘i at 371, 893 P.2d at 799. Likewise, this court in Wasson weighed the second Barker factor in favor of the defendant when court congestion was alleged as a reason for the delay. 76 Hawai‘i at 419, 879 P.2d at 524. The State submitted in this case that it could not proceed with trial because the assigned deputy prosecutor was busy with trials in other cases and there was a change in leadership at the prosecutor‘s office.28 But the workload of a deputy prosecutor, the election of a new prosecutor, and court congestion all share common features in that they are in all but exceptional circumstances recurring, systemic, foreseeable, and ultimately the government‘s responsibility.
Hence, the ICA misapprehended applicable principles in evaluating the second Barker factor. Cf. State v. Hanawahine, 69 Haw. 624, 631, 755 P.2d 466, 470 (1988) (holding that the defendant‘s late arraignment that resulted from the assigned prosecutor‘s workload was “not good cause for the delay [under
ii. Assertion of the Right to a Speedy Trial
The ICA also incorrectly applied legal principles relating to the third Barker factor: the assertion of the right to a speedy trial. We have stated that “[a] defendant has no duty to bring himself [or herself] to trial; the [S]tate has that duty.” Wasson, 76 Hawai‘i at 420, 879 P.2d at 525 (alterations in original) (quoting Barker, 407 U.S. at 527). “Thus, a defendant does not waive his or her right to a speedy trial by failing to demand one.” Id. (citing Barker, 407 U.S. at 526). However, the assertion of the right to a speedy trial “is entitled to strong evidentiary weight in determining whetherthe defendant is being deprived of the right.” Id. (quoting Barker, 407 U.S. at 531-32).
A defendant‘s motion to dismiss based on speedy trial “is ‘tantamount to an assertion of his [or her] constitutional right to a speedy trial.‘” Id. at 420-21, 879 P.2d at 525-26 (alteration in original) (quoting State v. Nihipali, 64 Haw. 65, 70 n.5, 637 P.2d 407, 412 n.5 (1981)). Nonetheless, the motion “does not necessarily indicate that the defendant actually wants to be tried immediately” unless accompanied by an alternative demand
In concluding that this factor weighed in favor of the State, the ICA determined that nothing in the record, other than Visintin‘s motion to dismiss, indicated that Visintin asserted the right to a speedy trial. Visintin, 142 Hawai‘i at 141-42, 414 P.3d at 193-94. The ICA‘s holding overlooks the significant circumstance that there appears to have been no conventional forum in which Visintin could have asserted the right to a speedy trial.
Although Visintin was arrested on August 7, 2012, he was not charged until more than seven months later on April 25, 2013. During the period between the arrest and the indictment, there was no pending charge against Visintin. Visintin aptly notes that it “is unfair to require that a defendant demand a speedy trial after he has been accused, but then refuse to create an actual case in which defendant can make a timely demand.” Without a pending charge and an arraignment to allow a trial to be set, there does not appear to have been any standard legal proceeding in which Visintin could have demanded a speedy trial. And when Visintin was finally arraigned on August 6, 2013, he filed a motion to dismiss based on speedy trial grounds within two weeks--on August 20, 2013.29 Thus, the ICA erred in concluding this factor weighed in favor of the State without considering whether Visintin raised the issue of speedy trial as soon as was practicable under the circumstances.30
iii. Prejudice to the Defendant
Prejudice to the defendant “should be assessed in the light of the interests of defendants [that] the speedy trial right was designed to protect.” Lau, 78 Hawai‘i at 64, 890 P.2d at 301 (quoting Barker, 407 U.S. at 532). These interests are the prevention of oppressive pretrial incarceration, the minimization of the defendant‘s anxiety and concern, and the preservation of the ability to mount an effective defense. Id.
With regard to anxiety, the ICA concluded in this case as follows:
The 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. State v. Ferraro, 8 Haw. App. 284, 300, 800 P.2d 623, 632 (1990) (citation and internal brackets omitted). Visintin has not offered such evidence here.
Visintin, 142 Hawai‘i at 142, 414 P.3d at 194 (emphases added). While the ICA correctly stated that to demonstrate anxiety, the defendant must offer objective, current evidence, the ICA incorrectly applied Ferraro to require that Visintin offer evidence that he demanded a speedy trial in order to demonstrate anxiety.
We have stated the following in addressing the issue of prejudice in the speedy trial context:
[W]holly aside from possible prejudice to a defense on the merits, [inordinate delay] may seriously interfere with the defendant‘s liberty, whether he is free on bail or not, and may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.
Lau, 78 Hawai‘i at 65, 890 P.2d at 302 (alterations in original) (quoting Moore v. Arizona, 414 U.S. 25, 27 (1973)). Thus, because anxiety may be based on a variety of circumstances, evidence of anxiety may take a variety of forms. The Ferraro court specifically recognized this fact
Although we have in the past held that a defendant‘s demand for a speedy trial may be relevant evidence of anxiety, we have never indicated that it is a necessary precondition for a showing of anxiety.31 When the defendant has raised financial circumstances as a basis for asserted anxiety, for example, Hawai‘i courts have considered whether there was a demand for speedy trial as evidence that the defendant was indeed impacted by the alleged financial hardship. In Lau, the defendants contended that they suffered from anxiety due to increased automobile insurance premiums. 78 Hawai‘i at 64, 890 P.2d at 301. In assessing whether the prejudice factor weighed in favor of the defendants, this court considered, inter alia, that the defendants had not asserted their right to a speedy trial and concluded that the record did not show that the alleged financial hardship was sufficient to warrant a finding of prejudice to the defendants. Id. at 65, 890 P.2d at 302.
In this case, whether Visintin demanded a speedy trial is not an appropriate consideration as evidence of anxiety. Visintin did not allege a financial hardship as a basis for any asserted anxiety.
Moreover, as discussed supra, Visintin could not have readily demanded a speedy trial during the period between the initial court proceeding and the arraignment, as there was no pending charge against him. Thus, the ICA misapprehended Ferraro by improperly considering the absence of an assertion of the right to a speedy trial by Visintin as a factor indicating that there was no evidence of anxiety.
2. Excessive Bail
Under
The ICA declined to reach Visintin‘s argument that his right against excessive bail was violated, concluding that “there is no independent basis for dismissing the criminal charges against Visintin based on his claim of excessive bail.” State v. Visintin, 142 Hawai‘i 126, 143, 414 P.3d 178, 195 (App. 2018). The ICA‘s ruling may potentially be interpreted overbroadly as an apparent categorical exclusion on dismissal based on violations of a defendant‘s bail-related rights. However, courts in other jurisdictions have held that the denial of bail may warrant dismissal of the case with prejudice under certain circumstances. For example, in City of Jamestown v. Erdelt, the defendant was arrested for driving under the influence of alcohol (DUI) and was detained for a period of eight hours before being allowed to post bail. 513 N.W.2d 82, 83 (N.D. 1994). The trial court granted the defendant‘s motion to dismiss the DUI charge. Id. The Supreme Court of North Dakota affirmed the trial court‘s dismissal “as a sanction for institutional non-compliance and systematic disregard of the law.” Id. at 85-86 (citations omitted). The court reasoned that the arresting officer had detained the defendant without making an individualized determination of the intoxication and dangerousness of the defendant--in violation of the bail statutes and case precedent. Id. at 86.
Similarly, in State v. Cuchy, DUI arrestees were jailed for twelve hours, based on the sheriff department‘s policy, before being allowed to
In light of Erdelt and Cuchy, there is legal authority for the proposition that criminal charges against a defendant may be dismissed based on violations of the right to bail under certain circumstances, including when law enforcement denies bail pursuant to a blanket policy of jailing DUI arrestees for several hours. Nevertheless, even if this court applied the holding in Erdelt and Cuchy, a dismissal of the charges against Visintin would not be warranted. While the circumstances in this case raise serious concerns as to the number of times Visintin was subject to arrest and the posting of bail for a single incident, the circumstances are not similar to those presented in Erdelt and Cuchy. Cf. Lock v. Moore, 541 N.W.2d84, 87 (N.D. 1995) (unlike in Erdelt, “this is not a case of a person meeting all the bail requirements but nonetheless being kept in jail“). Because the circumstances in this case do not rise to the level of a violation of the right against excessive bail, Visintin has not demonstrated that this constitutional right was violated.32
V. CONCLUSION
Based on the foregoing, the ICA‘s March 20, 2018 Judgment on Appeal is affirmed in part and vacated in part. The ICA‘s judgment on appeal is affirmed to the extent that it vacated the circuit court‘s judgment and remanded the case to the circuit court for dismissal, with or without prejudice as determined by that court, based on a finding of a
Tracy Murakami for petitioner/respondent
Daniel G. Hempey for respondent/petitioner
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
Notes
When a defendant who is sentenced to imprisonment has previously been detained in any State or local correctional or other institution following the defendant′s arrest for the crime for which sentence is imposed, such period of detention following the defendant′s arrest shall be deducted from the minimum and maximum terms of such sentence.