80 Hawai'i 107, State v. Baron

• Decision Date: 16 October 1995
• Docket Number: No. 16931,16931
• Parties: 80 Hawai'i 107 STATE of Hawai'i, Plaintiff-Appellee, v. Vernon BARON, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 613

905 P.2d 613

80 Hawai'i 107

STATE of Hawai'i, Plaintiff-Appellee, v. Vernon BARON, Defendant-Appellant.

No. 16931.

Supreme Court of Hawai'i.

Oct. 16, 1995.

Reconsideration Granted in Part and

Denied in Part Nov. 27, 1995.

[80 Hawai'i 109] James S. Tabe, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Caroline M. Mee, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee.

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

OPINION

NAKAYAMA, Justice.

Defendant-appellant Vernon Baron (Appellant) was found guilty of one count of sexual assault in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 707-731(1)(a) (Supp.1992), ¹ and two counts of sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a) (Supp.1992), ² and appeals from the judgment of the circuit court. On appeal, Appellant contends that: (1) he was denied a speedy trial pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 48; ³ (2) the circuit court erred in refusing to excuse for cause members of the jury who were unable to read, write, and understand English; (3) the circuit court erred in permitting a deputy city prosecutor to testify on behalf of the prosecution; (4) the circuit court erred in admitting the testimony of the complainant's school nurse; (5) the circuit court erred by admitting a tape recorded statement of the complainant; and (6) the circuit court erred by precluding Appellant from adducing testimony that the court deemed to be improper alibi testimony. For the reasons stated below, we vacate Appellant's conviction and sentence and remand the case to the circuit court for a new trial.

I. BACKGROUND

On February 27, 1992, Appellant was indicted on two counts of sexual assault in the second degree and four counts of sexual assault in the fourth degree, based on two alleged incidents of sexual assault involving his fourteen-year-old daughter, the complainant. The first reported incident allegedly occurred on or about October 27 and 28, 1990, and the second alleged incident occurred between September 1, 1990, and October 26, 1990. Appellant was subsequently arrested on March 16, 1992, and released on bail four days later.

Jury trial was initially scheduled for the week of July 27, 1992, but due to the cancellation of all trials in the family circuit court, trial was postponed and rescheduled to begin the week of August 31, 1992. Meanwhile, on July 30, 1992, Appellant's counsel moved to withdraw as counsel from the case due to Appellant's failure to pay attorney's fees. Counsel's motion was granted on August 11, 1992, and Appellant's case was transferred to the Office of the Public Defender. Pursuant to a motion filed by Appellant's new counsel on August 27, 1992, trial was continued to September 15, 1992.

On September 8, 1992, Appellant filed a motion to dismiss the indictment pursuant to HRPP Rule 48, arguing that the time period between the date of the indictment and the date of the motion exceeded six months. Appellant also filed a motion for a mental examination to determine his fitness to proceed.

Both motions were set for hearing before the circuit court on September 15, 1992. The hearing commenced on that date and was then continued to September 18, 1992, at which time the circuit court noted that the overall time period between the date of the indictment and the date of the HRPP Rule 48 motion was 186 days, exceeding the six month limitation. However, the circuit court denied the HRPP Rule 48 motion because it excluded from the computation the eleven days required to complete the withdrawal of Appellant's original counsel, thus reducing the total number of includable days to less than six months. Further, the circuit court left open the possibility that it could consider at a future date whether an additional number of days warranted exclusion as a result of court congestion in the family circuit court.

At the hearing, the circuit court also granted Appellant's motion to undergo a mental examination to determine his fitness to proceed. The circuit court continued the matter to November 13, 1992, for further proceedings, and set a new trial date of December 7, 1992.

On December 4, 1992, Appellant again moved to dismiss the indictment pursuant to HRPP Rule 48 and also filed a motion to continue trial. At a hearing on the same day, the circuit court found that, because trial had been continued at Appellant's request in order to undergo a mental examination to determine his fitness to proceed, the time that had passed since his prior motion to dismiss was chargeable to Appellant; thus, the circuit court denied Appellant's motion to dismiss. Additionally, the circuit court denied Appellant's motion to continue trial.

On December 7, 1992, the prosecutor fell ill and requested a continuance. Over Appellant's objection, the circuit court granted the continuance and rescheduled the trial for December 28, 1992.

On December 28, 1992, Appellant renewed his motion to dismiss pursuant to HRPP Rule 48, arguing that an additional twenty-one days should be added to the previously determined 175 days as a result of the circuit court's granting of the prosecution's request for a continuance. The circuit court declined to address Appellant's argument and proceeded to exclude an additional 97 days from the total time period due to "exceptional circumstances" of court congestion, thus reducing the includable time period to 99 days. In a written order, the circuit court gave a thorough explanation and time sequence outlining the excluded 97-day period, which began on May 26, 1992 and ended August 30, 1992. These exceptional circumstances included: the reassignment of two judges; the retirement of one judge; the temporary assignment of one judge to another court; the vacations of potential replacement judges; and a marked increase in jury trial demands.

Appellant's jury trial commenced on December 28, 1992. During the jury voir dire, two prospective jurors who had been seated in the jury box notified the trial court that they had problems with the English language. Prospective juror Jose engaged in the following exchange with the trial court:

THE COURT: Mr. Jose, tell me about yourself, how long have you been in [Hawai'i]?

THE JUROR: About eight years.

THE COURT: And is this eight years in [O'ahu]?

THE JUROR: Yes.

THE COURT: How long in the United States?

THE JUROR: Eight years.

THE COURT: And you finished high school?

THE JUROR: No.

THE COURT: How far did you get in high school?

THE JUROR: Third year in the Philippines.

THE COURT: And in what language did you have in high school?

THE JUROR: English.

Both the prosecution and Appellant challenged Mr. Jose's qualifications to sit on the jury and asked that he be excused for cause, pursuant to HRS § 612-4(2) (1985). ⁴ The court denied counsel's requests and stated:

I'm concerned because my feeling for a fair and impartial jury, who are representing an array of intelligence of the ethnicity of [Hawai'i], we do require people limited in educational ability and with a minor command of the English language [to be considered as qualified members of the jury pool]. I think if we were to exclude a vast number of immigrant citizens in this state, we would be eliminating about twenty percent of the jury members of the community. Mr. Jose apparently understands English.

(Emphasis added.) Appellant subsequently used a peremptory challenge to disqualify Mr. Jose from the jury.

Similarly, prospective juror Low stated that she did not "speak much English" and did not "understand how to read and write" English. The following conversation between the trial court and Mrs. Low ensued:

THE COURT: Mrs. Low, how long have you been in [Hawai'i]?

THE JUROR: I think about twenty-six, twenty-seven years.

....

THE COURT: How much education you have?

THE JUROR: I only go to A, B, C school and then I drop off.

THE COURT: Where do you work?

THE JUROR: I work Island Laundry Department.

....

THE COURT: You work. You have boss then?

THE JUROR: Yes.

THE COURT: Your boss speak what language?

THE JUROR: English.

THE COURT: Any trouble understanding your boss?

THE JUROR: Sometimes.

THE COURT: ... Any reason why you cannot serve as a juror?

THE JUROR: I don't understand how to read and write. I don't understand too much, maybe make wrong.

THE COURT: You can talk English, is that right? You can understand English?

THE JUROR: Not so much.

THE COURT: Anything I told you so far you don't understand?

THE JUROR: Little bit.

THE COURT: What part you don't understand?

THE JUROR: About I know how to judge the person ... I don't know how to judge a person right or wrong.

THE COURT: Maybe when you are on the jury, maybe eleven people will help you.

Appellant challenged Mrs. Low for cause and moved to excuse her pursuant to HRS § 612-4(2). The trial court denied Appellant's request by stating, "Your request is denied. The court will note Mrs. Low has been in this country [for] twenty-seven years. She's worked in the laundry department and I'm not convinced that Mrs. Low does not understand the English language that would disqualify her from service which is under the constitution." No peremptory challenge was exercised to excuse Mrs. Low, and she remained to serve as a member of the jury panel that heard the case.

Following opening statements, and over Appellant's objection, the prosecution called Sandra Chang to testify. Chang testified that she was a public health nurse employed at the Wai'anae Transition Center, which was located on the Wai'anae school campus, for the past fifteen years. She testified that the complainant came to see her in November 1990 and that "she looked sad and crying and had a hard time talking." Chang testified that the complainant spent hours talking and sitting with her. Chang then called the Children's Protective Service, which in turn called the Honolulu...