76 Hawai'i 415, State v. Wasson

• Citation: 76 Hawaii 415,879 P.2d 520
• Decision Date: 29 August 1994
• Docket Number: No. 16400,16400
• Court: Supreme Court of Hawai'i
• Parties: 76 Hawai'i 415 STATE of Hawai'i, Plaintiff-Appellee, v. Harry F. WASSON, Defendant-Appellant.

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879 P.2d 520 76 Hawai'i 415 STATE of Hawai'i, Plaintiff-Appellee,
v.
Harry F. WASSON, Defendant-Appellant. No. 16400. Supreme Court of Hawai'i. Aug. 29, 1994.

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[76 Hawai'i 416] Walter J. Rodby, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Loren J. Thomas, Deputy Pros. Atty., on the briefs, Honolulu, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

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[76 Hawai'i 417] NAKAYAMA, Justice.

By a complaint filed on February 24, 1990 in the District Court of the First Circuit, defendant-appellant Harry F. Wasson (Wasson) was charged with assault in the third degree, in violation of Hawai'i Revised Statutes (HRS) § 707-712(1)(a). ¹ After Wasson demanded a jury trial, the case was committed for trial to the Circuit Court of the First Circuit. Prior to trial, which began on May 6, 1992, Wasson twice moved to have the assault charge dismissed on speedy trial grounds. Both times he asserted Hawai'i Rules of Penal Procedure (HRPP) Rule 48 (Rule 48) as a basis for dismissal, claiming that his trial had not commenced within six months of the filing of the charge as required by the rule. ² Wasson's second motion also asserted his right to a speedy trial under the Hawai'i and United States Constitutions. ³ The circuit court denied both motions.

A jury convicted Wasson of the assault charge. He now appeals the judgment of conviction, arguing that the circuit court erred in denying his motions to dismiss. Plaintiff-appellee State of Hawai'i (State) concedes that the court erroneously denied Wasson's Rule 48 motions to dismiss, but argues that the court properly ruled that Wasson's constitutional speedy trial right was not violated despite the more than two year delay in the commencement of his trial. We agree with the State on both points. We therefore remand this case to the circuit court for vacation of the judgment of conviction and dismissal of the charge, with or without prejudice, in the court's discretion.

I. BACKGROUND

The assault charge against Wasson stemmed from an incident occurring at the snack bar on the Brigham Young University campus on October 21, 1989. Wasson's mother and father were also charged with assault in the third degree in connection with the incident.

Wasson was arraigned in district court on May 18, 1990. On November 16, 1990, he demanded a jury trial and was committed for trial to the circuit court. Following the filing of a new complaint in circuit court, again charging Wasson with assault in the third degree, Wasson was arraigned on January 7, 1991.

On September 13, 1991, Wasson's co-defendant mother filed a motion to dismiss the charge against her pursuant to Rule 48, arguing that her trial had not commenced within six months from the date of the filing of the charge against her. On September 30, 1991, Wasson filed a joinder in that motion, also seeking dismissal of the charge against him based on Rule 48.

A hearing was held on October 15, 1991. On October 21, 1991, the circuit court orally denied the motion. The court found that of the 605 days that had elapsed since the filing of the initial complaint in district court, at least 445 days were "excludable" for various reasons under Rule 48(c). ⁴ Excluding those 445 days, the court found that only 160 days--approximately five and one-third months--counted toward the six month time limit for commencing Wasson's trial. ⁵ A

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[76 Hawai'i 418] written order denying Wasson's motion was entered on January 2, 1992.

On May 4, 1992, Wasson filed another motion to dismiss, this time based on both Rule 48 and his constitutional right to a speedy trial under the Hawai'i and United States Constitutions. A hearing was held two days later. At the end of the hearing, the court concluded that the ruling on Wasson's previous Rule 48 motion was "law of the case" and would not be reconsidered. Thus, it ruled that it would only consider whether any time subsequent to the entry of the written order denying Wasson's first Rule 48 motion counted toward the six month period for commencing trial. The court found that none of that time was "includable for the defense" and denied Wasson's motion. It did not, however, identify the specific bases under Rule 48(c) for excluding the entire period from its computation. ⁶

Wasson's trial, which was consolidated with those of his co-defendant parents, commenced on May 6, 1992. On May 13, 1992, the jury found Wasson guilty of assault in the third degree. Wasson was subsequently sentenced to a fine of $100. He now appeals the denial of his two motions to dismiss.

II. DISCUSSION

A. Rule 48

The State concedes on appeal that the circuit court erred in several respects in denying Wasson's Rule 48 motions to dismiss. Among other things, the State concedes that in denying Wasson's second motion the court erroneously considered only the time period subsequent to January 2, 1992, the date on which the written order denying Wasson's first Rule 48 motion was filed. The State acknowledges that the court should have considered the period dating back to the conclusion of the hearing on the first Rule 48 motion, October 21, 1991. See State v. Soto, 63 Haw. 317, 320, 627 P.2d 279, 281 (1981) (per curiam). The State also concedes that the court erred in excluding the entire period of time between the denial of Wasson's first Rule 48 motion and the hearing on his second motion, acknowledging that only a relatively small portion (29 days) of that 198 day period was "excludable" for purposes of Rule 48.

The State has properly conceded error on these points. See Territory v. Kogami, 37 Haw. 174, 175 (1945) (even when the prosecutor concedes error, before a conviction is reversed, "it is incumbent on the appellate court to ascertain first that the confession of error is supported by the record and well-founded in law and to determine that such error is properly preserved and prejudicial."). When the time improperly excluded as a result of the errors is included in the Rule 48 computation, the lapse between the filing of the charge against Wasson and his trial clearly exceeded six months. We therefore hold that the court erroneously denied Wasson's Rule 48 motion to dismiss.

That, however, does not end the matter. The Rule 48 violation entitles Wasson to have the charges against him dismissed "with or without prejudice at the court's discretion." HRPP 48(b) (emphasis added). But Wasson also appeals the denial of his motion to dismiss on constitutional speedy trial grounds. "The only remedy for the violation of an accused's right to speedy trial is dismissal with prejudice." State v. Nihipali, 64 Haw. 65, 67 n. 4, 637 P.2d 407, 408 n. 4 (1981) (emphasis added). Thus, were we to find a violation of Wasson's constitutional speedy trial right, the charge against him would have to be dismissed with prejudice. Accordingly, we must address the constitutional issue.

B. Constitutional Right to Speedy Trial

In all criminal prosecutions, the accused has the right to a speedy trial under the sixth amendment to the United States Constitution and article I, section 14 of the Hawai'i Constitution.

This right attaches the moment a person becomes an "accused." In this jurisdiction, "accused" denotes the point at which a formal indictment or information has been returned against a person or when he becomes subject to actual restraints on his

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[76 Hawai'i 419] liberty imposed by arrest, whichever first occurs. State v. Bryson, 53 Haw. 652, 655, 500 P.2d 1171, 1173 (1972).

Whether the Government has violated an accused's right to speedy trial 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), and adopted by this court in State v. Almeida, 54 Haw. 443, 509 P.2d 549 (1973), to the particular facts of each case. The four factors to be considered in determining whether dismissal is warranted are: (1) length of the delay; (2) reasons for the delay; (3) defendant's assertion of his right to speedy trial; and (4) prejudice to the defendant. Barker, supra at 530[, 92 S.Ct. at 2192]. Because the right to speedy trial, unlike other rights guaranteed by the [United States and Hawai'i] Constitution[s], is unusually amorphous and serves to protect the separate, often conflicting interests of the accused and of the public in the speedy disposition of cases, the weight accorded each of these factors is to be determined on an ad hoc basis. "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 to a speedy trial,' but rather 'they are related factors and must be considered together with such circumstances as may be relevant.' " State v. English, 61 Haw. 12, 16 n. 6, 594 P.2d 1069, 1072-73 n. 6 [1978], quoting Barker, supra at 533[, 92 S.Ct. at 2193].

Nihipali, 64 Haw. at 67-68, 637 P.2d at 410-11 (footnote omitted).

1. Length of the delay

The first factor, the length of the interval between accusation and trial, "serves as a triggering mechanism to the Barker analysis." Id. at 68, 637 P.2d at 411 (citing Barker, 407 U.S. at 530, 92 S.Ct. at 2192, and State v. O'Daniel, 62 Haw. 518, 524, 616 P.2d 1383, 1388 (1980)). Because some pretrial delay is inevitable in almost every criminal prosecution, unless the delay in the commencement of trial "has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay," inquiry into the remaining Barker factors is unnecessary. Doggett v. United States, --- U.S. ----, ----, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520, 528 (1992).

Although precisely when a given delay passes into "presumptively prejudicial" territory depends on the facts of each case, Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192, we have held that delays shorter than the one in this case have triggered inquiry into the other Barker factors. See, e.g., Nihipali, 64 Haw. at 68, 637...