77 Hawai'i 17, State v. Hoey
| Decision Date | 22 September 1994 |
| Docket Number | No. 17240,17240 |
| Citation | 881 P.2d 504,77 Hawaii 17 |
| Parties | 77 Hawai'i 17, 63 USLW 2221 STATE of Hawai'i, Plaintiff-Appellee, v. Brett Matthew HOEY, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Caroline M. Mee, Deputy Prosecuting Atty., Honolulu, for plaintiff-appellee State of Hawai'i.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
The defendant-appellant Brett Matthew Hoey appeals his convictions of robbery in the first degree and kidnapping following a jury trial in the Circuit Court of the First Circuit Court, State of Hawai'i. Hoey urges the following points of error on appeal: (1) that the trial court erroneously denied his motion to dismiss the charges against him because his trial was not timely commenced as required by Hawai'i Rules of Penal Procedure (HRPP) 48; 1 (2) that the trial court erroneously admitted a redacted version of his tape-recorded confession to the police into evidence despite the fact, inter alia, that he had not voluntarily, knowingly, and intelligently waived his right to counsel; and (3) that the trial court erroneously refused to instruct the jury regarding the possibility that the kidnapping and robbery counts of the complaint had merged, in which case he could be convicted at most of the robbery offense.
We agree with all three of Hoey's points of error. Accordingly, because we hold that the commencement of Hoey's trial was untimely,
[77 Hawai'i 21] in violation of hrpp 48, we vacate the trial court's judgment of conviction and remand the matter for the entry of an order dismissing the complaint. However, because the circuit court has the discretion, on remand, to dismiss the complaint without prejudice, 2 and it is possible that Hoey may be recharged, we deem it necessary to provide guidance with respect to the remaining issues in the event of a new trial. Thus, for the reasons stated below, we hold that the trial court committed reversible error both when it allowed Hoey's confession into evidence and when it refused to instruct the jury as to the applicable law regarding merger of offenses. Cf. State v. Wasson, 76 Hawai'i 415, 879 P.2d 520, 523-24 (Sup.1994) (); Knodle v. Waikiki Gateway Hotel, 69 Haw. 376, 391, 742 P.2d 377, 386 (1987) ().
On June 2, 1992, the Office of the Prosecuting Attorney for the City and County of Honolulu filed a two-count complaint in the first circuit court, charging Hoey as follows:
On the following day, May 20, 1992, Hoey was arrested by Detective Henry Nobriga of the Honolulu Police Department (HPD). At the police station, Detective Nobriga conducted a tape-recorded interrogation of Q. [by Detective Nobriga]: I'm gonna ask you questions about [a] robbery and kidnapping which occurred on, uh, May 19, 1992, at about eleven o'clock that night. That's at ... 1009 University Avenue. But first I wanna inform you of certain rights you have under the Constitution. Before I ask you any questions, you must understand your rights. You have the right to remain silent. You don't have to say anything to me or answer any of my questions. Anything you say may be used against you at your trial. You have a right to counsel of your choice or talk to anyone else you may want to. If you cannot afford an attorney--well, you also have a right, I should say, to have an attorney present while I talk to you. If you cannot afford an attorney, the court will appoint one for you. You think you'll need an attorney now?
[77 Hawai'i 22] Hoey. At the outset of the interrogation process, Detective Nobriga utilized an "HPD Form 81" in conjunction with advising Hoey of his Miranda rights. After some preliminary remarks by Detective Nobriga, the tape-recorded interrogation commenced with the following colloquy:
A. [by Hoey]: I don't have the money to buy one.
Q. No, well, I'm just saying do you think you'll need an attorney?
A. Right now, I don't think so.
Q. Okay. If you decide to answer my questions without an attorney being present, you still have the right to stop answering at any time. [Coughs.] Excuse me. In other words, if you don't want to answer a question, you don't have to. Do you understand what I've told you?
A. Yes.
Q. Okay. I'll go over would you like to tell me what happened, but for now this is what I need for you to do. Initial where it says "yes" here [on the HPD Form 81]. You know why you're being arrested?
A. Yes.
Q. Okay. Here it says, "Do you want an attorney now?" The answer was "no." Is that correct?
A. Yes.
Q. Okay. Now, do you understand what I've told you? Go ahead and put "yes."
A. [No audible response.]
Q. Okay, go ahead and mark "yes" there [apparently, the "yes" space following the question, "Would you like to tell me what happened?"] for now. Well, yeah, go ahead and mark "yes." And sign right here [on the line designating] your name.
State's Exhibit 1 (emphasis added).
Having engaged in the foregoing colloquy and obtained Hoey's initials and signature on the HPD Form 81, Detective Nobriga proceeded to question Hoey regarding the events of May 19, 1992. Hoey fully confessed to the charged offenses. In substance, he admitted to Detective Nobriga that at approximately 10:30 p.m., he and an accomplice, Chad Akimoto, entered Carnival Carnival, a video arcade in the University district of Honolulu, ostensibly to repair video games. Once the establishment had been closed and the front entrance locked for the night, Susan Fasone, the night supervisor, was the only person present with them. Hoey and Akimoto lured Fasone into the maintenance room, at which time Akimoto struck Fasone on the head with a length of two-by-four lumber. After Fasone fell to the floor, Akimoto bound her hands and feet. Hoey attempted to tape Fasone's mouth, but, because there was insufficient electrical tape available for the purpose, Hoey partially covered Fasone's head with a plastic bag. Hoey and Akimoto then took approximately $1500.00 of store receipts, as well as $200.00 and a Hawaiian bracelet belonging to Fasone. Hoey disabled the telephone and apologized to Fasone for her physical injury. The men then locked the door to the maintenance room and fled Carnival Carnival, leaving Fasone bound inside the maintenance room.
Hoey was arraigned in district court on May 21, 1992, and the case was committed to circuit court for further proceedings on May 26, 1992. Bail was set at $100,000.00 in the aggregate; Hoey has remained continuously in custody since that time.
On June 18, 1992, Hoey was arraigned in circuit court, entering pleas of not guilty to the two charges. The arraignment judge set the matter for trial during the week of September 8, 1992.
On June 8, 1992, Hoey filed a motion for supervised release and/or bail reduction. The motion came on for hearing in the circuit court on July 13, 1992. The presiding judge orally denied Hoey's motion for supervised release but reduced his bail to $35,000.00 in the aggregate, subject to a number of conditions. The written order memorializing the court's ruling was filed on July 30, 1992.
For reasons not reflected in the record, the week of September 8, 1992 came and went without the present matter coming on for trial. The matter was, however, called for a trial status conference in the fourteenth division of the first circuit court on October 5, 1992, having been designated the "tenth backup" on the criminal division's master calendar. Because the deputy public defender assigned to Hoey's case was scheduled to be in trial in another case-- State v. Kaikala, Cr. No. 91-1938--from October 6 through October 9, 1992, the court ordered that the present matter be placed on "float" status pending the availability of defense counsel.
On October 23, 1992, Hoey filed a motion to continue trial week and pre-trial motions deadline in order to allow him to request various medical records from the state of New York that might bear upon his fitness to proceed as well as a potential defense of lack of penal responsibility. The motion was heard by the administrative judge of the criminal division on the same day. Following argument, during which Hoey's counsel orally waived Hoey's constitutional right to a speedy trial, as well as his rights under HRPP 48, pending a determination of his fitness to proceed, the administrative judge granted the motion to continue trial week and pulled the case from the master calendar.
On November 2, 1992, Hoey filed a motion for a mental evaluation to determine his present fitness to proceed, his mental condition at the time of the alleged offenses, and the existence of any mental disease, disorder, or defect that would affect his penal responsibility. On November 30, 1992, the...
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