79 Hawai'i 165, State v. Carvalho

• Citation: 880 P.2d 217
• Decision Date: 08 September 1994
• Docket Number: No. 15524,15524
• Parties: 79 Hawai'i 165 STATE of Hawai'i, Plaintiff-Appellee, v. Daniel Perry CARVALHO, Jr., Defendant-Appellant.
• Court: Court of Appeals of Hawai'i

Page 217

880 P.2d 217

79 Hawai'i 165

STATE of Hawai'i, Plaintiff-Appellee, v. Daniel Perry CARVALHO, Jr., Defendant-Appellant.

No. 15524.

Intermediate Court of Appeals of Hawai'i.

Sept. 8, 1994.

Certiorari Granted Sept. 29, 1994.

Syllabus by the Court

1. The statute of limitations does not fully define the defendant's rights to a fair trial, and events occurring prior to the formal criminal charge may cause substantial prejudice to such rights. Under such circumstances, the Due Process Clause requires dismissal of the criminal charge.

2. A due process inquiry must consider the reasons for a delay in prosecution and the prejudice to the defendant.

3. In determining whether dismissal of the criminal charge is required due to prosecutorial delay, the court applies the balancing approach by weighing substantial prejudice to the defendant's right to a fair trial against the reasons for the delay.

4. A mere claim of loss of memory coupled with a lapse of time does not, of itself, establish prejudice for purposes of a claim of violation of due process under article I, section 5 of the Hawai'i State Constitution or under the Fourteenth Amendment of the United States Constitution.

5. The real possibility of prejudice inherent in any extended delay, i.e., that memories will dim, is not in itself enough to demonstrate that the defendant cannot receive a fair trial.

6. Where evidence at a pre-trial hearing is insufficient to establish prejudice from memory loss, actual prejudice may be demonstrated by events at trial.

7. In a claim of pre-indictment delay, the generalized prospect of testimony from lost witnesses does not amount to actual prejudice.

8. In a claim of pre-indictment delay, proof must be definite and not speculative in order to establish prejudice.

9. The defendant's right to one peremptory challenge to alternate jurors under Hawai'i Rules of Penal Procedure (HRPP) Rule 24(c) is a right pertaining to all alternate jurors and therefore the defendant shall not be called upon to exercise the challenge until all potential alternate jurors have been examined and passed for cause.

10. The right to exercise a peremptory challenge is one of the most important of the rights secured to the accused in a criminal case.

11. The denial or impairment of a defendant's right of peremptory challenges in a criminal case is reversible error not requiring a showing of prejudice.

12. Under HRPP Rule 52(b), appellate courts, in the public interest, may of their own motion, notice errors to which no exception has been taken if the errors are obvious, and if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.

Dwight C.H. Lum, on the briefs, Honolulu, for defendant-appellant.

Caroline M. Mee, Deputy Pros. Atty., City & County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and ACOBA, JJ.

ACOBA, Judge.

The defendant, Daniel Perry Carvalho, Jr., (hereafter Defendant) was indicted for the offense of Promoting a Dangerous Drug in the First Degree under Hawai'i Revised Statutes (HRS) § 712-1241(1)(b)(ii)(A) (1985). Trial commenced on April 22, 1991. The jury returned a verdict of guilty on April 26, 1991 and Defendant was sentenced to imprisonment for a term of twenty years and restitution in the amount of $620.00. On his appeal from the judgment, Defendant raises several points. We consider two points.

I.

First, Defendant claims that the motions court erred in denying his pre-trial motion to dismiss for pre-indictment delay (hereafter Motion).

Defendant allegedly sold cocaine to a confidential informant on January 31, 1986. He was indicted on July 27, 1988, thirty months after the date of the alleged offense but within the time allowed under the statute of limitations.

The United States Supreme Court first recognized in United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481 (1971), that "the statute of limitations does not fully define the [defendant's] rights" to a fair trial and that "events occurring prior to [the formal criminal charge]" may "cause [ ] substantial prejudice to [such] rights...." Under such circumstances "the Due Process Clause ... would require dismissal of the [criminal charge][.]" Id.

After Marion, it was made clear that the "due process inquiry must consider the reasons for the delay [in prosecution] as well as the prejudice to the accused." United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752, 759 (1977). Thus, we "follow the balancing approach adopted by a substantial number of courts in other jurisdictions" by weighing "substantial prejudice to the defendant's right to a fair trial" against "the reasons for the delay in determining whether dismissal of the criminal charge is required." State v. English, 61 Haw. 12, 17 n. 8, 17, 18, 594 P.2d 1069, 1073 n. 8, 1073 (1979).

The hearing on the Motion consisted of stipulations as to testimony. The essence of Defendant's case was that he could not remember "where he was or what he might have done on January 31, 1986," that his mother, family and friends were unable to help him recollect the events of January 31, 1986, that because he could not recollect such events he would not be able to locate potential alibi witnesses and that he had no floor plans for his residence where the alleged cocaine sale took place.

The State's offer of testimony was that the informant surfaced sometime after July 30, 1987, that the informant was working in an undercover capacity prior to that time and that the police department and the informant did not "purposely delay bringing in this case [to the prosecutor] in order to obtain an unfair advantage."

The State also offered evidence that the prosecutor's office received the case on August 17, 1987 and that the indictment was delayed because of re-assignments within the prosecutor's office, "holidays and administrative days off," a backlog of cases at the grand jury, a planned consolidation with another case, lack of time at the grand jury proceedings, and the illness of the informant. Defendant was not indicted until July 27, 1988, almost a year after the case had been "conferred" with the prosecutor's office.

A.

We do not condone the nearly one year delay in the prosecutor's office. However, we believe the motions court was correct in concluding that Defendant failed to establish that his claimed inability to recollect events prior to his indictment, even with the aid of others, amounted to "substantial prejudice" to his right to a fair trial. Defendant claimed that he could not recollect what occurred on January 31, 1986 but that if he could have, he would have been able to obtain "alibi witnesses" for that date. But it is established in our jurisdiction that "a mere claim of loss of memory coupled with a lapse of time does not, of itself, establish prejudice for purposes of a claim of violation of due process under Article I, Section 5 of the Hawaii [Hawai'i] State Constitution[,]" State v. Dunphy, 71 Haw. 537, 542, 797 P.2d 1312, 1315 (1990), or under the Fourteenth Amendment of the United States Constitution. See State v. Bryson, 53 Haw. 652, 500 P.2d 1171 (1972) (evidence of memory loss insufficient in that case to establish prejudice under due process clause of Hawai'i State Constitution and Fifth Amendment of the United States Constitution). See also State v. Levi, 67 Haw. 247, 249, 686 P.2d 9, 10 (1984) (memory loss based on a "31 month delay," one month more than the thirty months claimed here, was insufficient to show substantial prejudice); State v. English, 61 Haw. 12, 19, 594 P.2d 1069, 1074 (1979) (A "bald assertion of [defendant's] loss of memory" is insufficient to establish "substantial prejudice"). For "the real possibility of prejudice inherent in any extended delay[, i.e.,] that memories will dim[,] ... [is] not in [itself] enough to demonstrate that [the defendant] cannot receive a fair trial[.]" United States v. Marion, 404 U.S. 307, 326, 92 S.Ct. 455, 466, 30 L.Ed.2d 468, 482 (1971).

While the evidence submitted at the hearing on the Motion was insufficient to establish prejudice from claimed memory loss, "[e]vents of the trial may demonstrate actual prejudice[.]" ¹ Id. But prejudice was not demonstrated at trial. Defendant testified that he "didn't engage in [the sale]." He was also able to testify in detail on direct examination about the informant's visit to his home on or about January 31, 1986, ² the day of the alleged sale, as well as about her visits to his home on the three days following. His testimony at trial does not indicate that the passage of time prejudiced his right to a fair trial. Defendant was clear in his denial of culpability and was able to recount the events of the informant's visits with him during the relevant time period.

Defendant also claimed he was prejudiced by the loss of potential alibi witnesses because of the passage of time. However, in a claim of pre-indictment delay, " 'the generalized prospect of ... lost witnesses does not amount to actual prejudice.' " Millman v. State, 841 P.2d 190, 196 (Alaska App.1992) (quoting State v. Mouser, 806 P.2d 330, 337-38 (Alaska App.1991)). Because "[t]he defendant has not indicated what the unavailable witness'[ ] testimony would have added [he], therefore, has failed to show how he was prejudiced by the lack of that testimony." State v. Weeks, 137 N.H. 687, 698, 635 A.2d 439, 446 (1993).

Defendant identified one of the "lost" witnesses. He stated that this witness lived with him "off and on" and Defendant's "last knowledge was that Mr. Sanchez was somewhere in Texas, but no one seems to know [where]." However, he did not know what Mr. Sanchez would have testified to, if anything. Moreover, at the hearing Defendant did not "show[ ] a good faith attempt to locate the witness[ ][,]" a necessary factor in establishing prejudice resulting from a lost witness....