State v. Bryson, s. 5152

• Decision Date: 08 September 1972
• Docket Number: Nos. 5152,5153,5154,5155,s. 5152
• Citation: 500 P.2d 1171,53 Haw. 652
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Roy Alton BRYSON, aka Alton, Defendant-Appellee. STATE of Hawaii, Plaintiff-Appellant, v. Bruce Charles BOWMAN, Defendant-appellee, and William Bannister, Defendant. STATE of Hawaii, Plaintiff-Appellant, v. Henry Ashford COAKLEY, Defendant-Appellee, and Ernest James GRANITO, Defendant. STATE of Hawaii, Plaintiff-Appellant, v. Sherman Ivers EGGE, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 1171

500 P.2d 1171

53 Haw. 652

STATE of Hawaii, Plaintiff-Appellant, v. Roy Alton BRYSON, aka Alton, Defendant-Appellee.

STATE of Hawaii, Plaintiff-Appellant, v. Bruce Charles BOWMAN, Defendant-appellee, and William Bannister, Defendant.

STATE of Hawaii, Plaintiff-Appellant, v. Henry Ashford COAKLEY, Defendant-Appellee, and Ernest James GRANITO, Defendant.

STATE of Hawaii, Plaintiff-Appellant, v. Sherman Ivers EGGE, Defendant-Appellee.

Nos. 5152, 5153, 5154, 5155.

Supreme Court of Hawai'i.

Sept. 8, 1972.

Syllabus by the Court

1. The speedy trial guarantee of the United States and Hawaii Constitutions does not apply until the putative defendant becomes an accused through charge or detention.

2. A full evidentiary hearing is necessary in order to establish prejudicial pre-indictment delay resulting in deprivation of due process of law.

3. A pre-indictment delay of eight and one-half months claimed to have caused memory loss to the defendant does not, by itself, deprive the defendant of due process of law.

4. The interest of the state in keeping an undercover official's identity secret for a reasonable period of time is a legitimate basis for delaying indictment of an individual while the officer continues his undercover work.

Lawrence S. Grean, Deputy Pros. Atty., Honolulu (Barry Chung, Pros. Atty., with him on briefs), for appellant.

James Blanchfield, Deputy Public Defender, Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, for appellees.

Before RICHARDSON, C. J., MARUMOTO, LEVINSON and KOBAYASHI, JJ., and VITOUSEK, Circuit Judge, for ABE, J., disqualified.

RICHARDSON, Chief Justice.

The four narcotics cases before this court were consolidated for purposes of argument on appeal. All of the prosecutions were the result of alleged sales of narcotics to an undercover police officer. Each defendant was indicted by a grand jury from six to nine months after the date of the alleged sale.

The defense counsel below moved to dismiss the indictments on the ground that there had been an unreasonable and prejudicial lapse of time between the date of the commission of the alleged offense and the date of the defendants' indictments. In two of the cases testimony was taken from both a defendant and the undercover police officer. In the other two cases no testimony was taken and no evidence was presented.

The undercover police officer testified that the charges were not brought earlier due to a desire to protect his undercover operations in order to facilitate discovery of the persons chiefly responsible for the traffic in narcotic drugs in the State of Hawaii. The trial judge ruled that any delay in excess of six months between the alleged sale of a narcotic drug and an indictment for the sale would be deemed prejudicial and that the state would have the burden of coming forward to show sufficient reason for the delay. The desire of the police department to protect the undercover police officer's identity while he attempted to reach larger figures in the drug traffic was held to be insufficient reason to overcome the prejudice resulting from the delay in excess of six months. The defendants' motions to dismiss were granted and the state appealed therefrom.

The appellees contend that the result below was required by the right to a speedy trial guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 11 of the Hawaii Constitution, and the due process clause of the Fifth Amendment of the United States Constitution and Article I, Section 4 of the Hawaii Constitution. We shall deal with the two constitutional arguments in turn.

The appellees would interpret the constitutional right to a speedy trial to arise once there is a 'decision to prosecute.' We cannot agree. The speedy trial provision has no application until the putative defendant becomes an 'accused. ¹' This means that the defendant must in some way be charged or detained. It does not mean that the police simply know that an offense has occurred.

The United States Supreme Court in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) examined extensively the constitutional guarantees of a speedy trial and due process of law where the delay is prior to arrest or indictment. In Marion the defendants-appellees were indicted on April 19, 1970 for allegedly conducting a fraudulent business scheme involving misrepresentations, alterations of documents, and deliberate non-performance of contracts. The period covered in the indictments was March 1964 to February 1967. Over three years elapsed between the date of the last alleged illegal act and the date of the indictment. Counsel for the defendants moved to dismiss because the indictment was returned 'an unreasonably oppressive and unjustifiable time after the alleged offenses.' 404 U.S. at 310, 92 S.Ct. at 456, 30 L.Ed.2d at 471. They argued that the memory of many specific acts and conversations had dimmed with the passage of time. Negligence or indifference on the part of the United States Attorney was alleged. No specific prejudice was claimed or demonstrated.

The opinion of the Supreme Court, delivered by Justice White, refused to recognize an invasion of the right to a speedy trial as guaranteed by the Sixth Amendment. Only after the indictment, according to the Court, had the defendants become 'accused' and therefore entitled to a constitutionally required speedy trial.

The Supreme Court held:

. . . (I)t is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of speedy-trial provision of the Sixth Amendment.

We adopt the same interpretation for the Hawaii State Constitution right to a speedy trial. Prior to such formal charge or detention a citizen suffers no public accusation or restraint on his liberty. The passage of time may always impair memories or cause evidence to be lost and lead to interference with a defendant's ability to defend himself. The legislature has provided a statute of limitations to guard against the prejudice which results from the passage of an excessive period of time between the commission of an alleged crime and its prosecution. These statutes set a time limit beyond which it is irrebuttably assumed that a defendant's right to a fair trial would be prejudiced. The constitutional right to a speedy trial serves to insure an accused of an early disposition of the charges against him; it is not intended to be substituted for the statute of limitation's protection against state prosecutions. This court has so held in the previous decisions of Territory v. Shito, 43 Haw. 203 (1959) and State v. Wong, 47 Haw. 361, 389 P.2d 439 (1964).

The case of Territory v. Shito, supra, discusses a pre-indictment delay of approximately 1 year and 9 months following a summary commitment. The delay there was found to be subject to but not to violate the constitutional right to a speedy trial. This holding is not in conflict with our decision today as the defendant was very definitely 'an accused' before his indictment.

State v. Wong, supra, involved a defendant who was alleged to have committed a murder while an escapee from prison. Following capture and indictment he was adjudged incompetent to stand trial and placed...