State v. Almeida

• Decision Date: 01 May 1973
• Docket Number: No. 5265,5265
• Citation: 509 P.2d 549,54 Haw. 443
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Robert E. ALMEIDA, Defendant, and George H. Madeira, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 549

509 P.2d 549

54 Haw. 443

STATE of Hawaii, Plaintiff-Appellant, v. Robert E. ALMEIDA, Defendant and George H. Madeira, Defendant-Appellee.

No. 5265.

Supreme Court of Hawai'i.

May 1, 1973.

Syllabus by the Court

1. The burden of going forward with a motion to dismiss indictment is upon the movant to show a prima facie case showing that he is entitled to dismissal.

2. The right to speedy trial arises when a person becomes an 'accused',

which occurs when either a formal indictment or information has been returned against a person or when he becomes subject to the actual restraints on his liberty, imposed by arrest.

3. In determining whether the right to speedy trial has been violated, a balancing test must be used rather than an arbitrary period of time. This test includes consideration of such factors as length of delay, reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. Such factors are not pre-conditions to a finding of such right.

Douglas L. Halsted, Deputy Pros. Atty. (Barry Chung, Pros. Atty., Honolulu, Hawaii, of counsel), for plaintiff-appellant.

David L. Turk, Honolulu (David C. Schutter, Honolulu, of counsel), for defendant-appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

KOBAYASHI, Justice.

The State of Hawaii appeals from an order of the trial court granting the defendant's pre-trial motion to dismiss the indictment for several drug offenses.

FACTS

On March 7, 1971, George H. Madeira (defendant-appellee) and Robert E. Almeida (Almeida) were arrested and charged with three offenses: possession of narcotic durg, possession of harmful drug, and possession of narcotic drug with intent to sell the same.

At a preliminary hearing on the above-alleged offenses on March 15, 1971, defendant-appellee was discharged and released.

On April 14, 1971, however, a grand jury returned an indictment against the defendant-appellee and Almeida for the same three offenses. A bench warrant of arrest was then issued and though Almeida was served promptly the defendant-appellee was not actually served until November 10, 1971, seven months later. On the same day the defendant-appellee was released on his own recognizance.

On November 11, 1971, the defendant-appellee appeared and entered a plea of not guilty. Five days later the defendant-appellee filed a motion, supported with a personal affidavit, to dismiss the indictment against him, alleging that he had been denied his constitutional right to a speedy trial. At the hearing on the motion on January 13, 1972, the defendant-appellee introduced into evidence the transcripts of the defendant-appellee's preliminary hearing of March 15, 1971, and a copy of an order of defendant-appellee's discharge pursuant to the preliminary hearing. On January 19, 1972, the court entered a written order granting the defendant-appellee's motion, from which the State appeals to this court.

In his motion to dismiss the defendant-appellee stated:

that there was unnecessary delay by the government of approximately seven months between the date of the indictment (April 14, 1971) and the date of the subsequent arrest (November 10, 1971) in violation of defendant's right to speedy trial and due process of law under the 6th and 14th Amendments of the United States Constitution, and Article 1, Section 4 and Section 11 of the Hawaii Constitution and Hawaii Revised Statutes, Section 711-6.

In his affidavit the defendant-appellee made the following representations:

1. That he was arrested on March 7, 1971, for the alleged offenses, and after a preliminary hearing on March 15, 1971, the charges against him were dismissed;

2. That his co-defendant, Robert E. Almeida, after a preliminary hearing, was bound over to the circuit court;

3. That he was never informed, contacted, or approached with regard to the indictment until he was arrested on the morning of November 10, 1971 4. That at all times since March 7, 1971, he has resided within the City and County of Honolulu and was totally available to anyone who wished to talk to him;

5. That he has never attempted to evade service of process;

6. That his attorney, the bondsman who posted his initial bail, the Adult Probation and District Court of Honolulu all had his address and phone number;

7. That his co-defendant had already had a motion to suppress heard and the failure of the State to inform him of the pendency of any charges against him had prevented him from participating in said motion to suppress;

8. That the actions of the State in holding these criminal charges outstanding against him for eight months had substantially adversely affected his ability to present a defense thereto and had grievously affected his personal business and financial condition;

9. That his own memory of names, times and places relative to March 7, 1971, was substantially dimmer than it would have been had he been informed of the charges in April or May rather than in November of 1971.

At the hearing on the motion to dismiss the prosecution failed to give any explanation for the delay in serving the bench warrant.

SPEEDY TRIAL

There is no question that the Sixth Amendment right to speedy trial is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern incident to public accusation and to limit the potential impairment of the ability of an accused to defend himself. United States v. Marion, 404 U.S. 307, 92 S.Ct 455, 30 L.Ed.2d 468 (1971). The right to speedy trial arises only when a person becomes an 'accused'. ¹ We have interpreted 'accused' to mean the point at which either a formal indictment or information has been returned against a person or when he becomes subject to actual restraints on his liberty imposed by arrest, whichever first occurs. State v. Bryson, 53 Haw. 652, 655, 500 P.2d 1171, 1173 (1972). ² Thus, generally it is only subsequent to accusation that the Sixth Amendment of the United States Constitution and Article I, Section 11 of the Hawaii Constitution require an early disposition of the charges levied against an accused. ³

This court deems it unwise to set a specific time period arbitrarily within which an accused must be brought to trial. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court promulgated a balancing test applicable to defendant-appellee's claim that his right to speedy trial was denied. The court stated at 530-531, 92 S.Ct. at 2192:

A balancing test necessarily compels courts to approach speedy trial cases on ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. . . .

Closely related to length of delay is the reason the government assigns to justify the delay. . . .

At page 533, 92 S.Ct. at page 2193, the court further stated:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. . . .

In the case herein the State argues that the affidavit of defendant-appellee submitted with his motion to dismiss the indictment was insufficient to raise a prima facie case, and thus the burden did not shift to the State to show justification for the alleged post indictment delay.

We agree with the State that the burden...