State v. Crail

• Decision Date: 30 October 2001
• Docket Number: No. 23007.,23007.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Darrel M. CRAIL, Defendant-Appellant, and Rilei Shepard, also known as Rilei Edwards-Sheppard, Defendant.
• Court: Hawaii Supreme Court

35 P.3d 197

97 Haw. 170

STATE of Hawai`i, Plaintiff-Appellee, v. Darrel M. CRAIL, Defendant-Appellant, and Rilei Shepard, also known as Rilei Edwards-Sheppard, Defendant.

No. 23007.

Supreme Court of Hawai`i.

October 30, 2001.

Stuart N. Fujioka, Honolulu, for defendant-appellant, on the briefs.

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

MOON, C.J., NAKAYAMA, RAMIL, and ACOBA, JJ. with LEVINSON, J., Concurring Separately.

Opinion of the Court by ACOBA, J.

We hold, in this appeal by Defendant-Appellant Darrell Crail (Defendant) from a November 18, 1999 judgment of conviction and sentence for violations of Hawai`i Revised Statutes (HRS) § 712-1243 (Supp.1999) (Count I) and HRS § 329-43.5 (1993) (Count II), that the first circuit court (the court)<sup>1</sup> did not err in denying his motion to dismiss for preindictment delay. Contrary to his contentions, we conclude that Defendant did not demonstrate substantial prejudice from his alleged loss of memory or from the loss of potential witnesses and evidence, see State v. Carvalho, 79 Hawai`i 165, 167, 880 P.2d 217, 220 (App.),

cert. granted, 77 Hawai`i 373, 884 P.2d 1149 (1994), cert. dismissed as improvidently granted, 78 Hawai`i 474, 896 P.2d 930 (1995), or from the failure of the police to tape record his confession. See State v. Kekona, 77 Hawai`i 403, 410-11, 886 P.2d 740, 747-48 (1994).

However, we also hold that the locations of illegal drugs and drug paraphernalia were required to be proven by Plaintiff-Appellee State of Hawai`i (the prosecution). Thus, jury instructions which identified such locations constituted improper comments by the court on the evidence, which error requires that Defendant's November 18, 1999 conviction and sentence be vacated and the case remanded for a new trial. See State v. Tanaka, 92 Hawai`i 675, 994 P.2d 607,

reconsideration denied,

92 Hawai`i 675,

994 P.2d 607 (App.1999),

cert. dismissed,

92 Hawai`i 675,

994 P.2d 607 (2000); HRS chapter 262, Hawai`i Rules of Evidence (HRE) Rule 1102 (1993).

We hold that because Defendant's motion for judgment of acquittal or, in the alternative, motion for a new trial, pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rules 29 (2000) and 33 (2000), respectively, was untimely, the court did not err in denying it. Finally, in light of the remand, we determine, as is necessary, that there was sufficient evidence to have supported Defendant's convictions.

For the foregoing reasons, we vacate the court's November 18, 1999 judgment of convictions and sentence and remand the case for disposition as set forth herein.

I.

A.

In 1997, several complaints of suspected drug activity at a residence in Nánákuli, O`ahu (the residence) were filed with the Narcotics/Vice Division of the Honolulu Police Department (HPD). On September 24, 1997, a search warrant was issued for the residence. Defendant was the only one named in the warrant as a person to be searched. HPD executed the warrant on October 1, 1997 and recovered from the residence: (1) a glass pipe with residue, containing.045 grams of methamphetamine, identified at trial as Exhibit 1; (2) four ziploc bags, containing .410 grams of methamphetamine, identified as Exhibit 2; (3) ziploc bags in a plastic container, containing .265 grams of methamphetamine, identified as Exhibit 3; (4) a scale with .002 grams of methamphetamine, identified as Exhibit 4; and (5) a scraper, identified as Exhibit 40. On the day of the search, Defendant was arrested and transported to the Wai`anae police station. At the station, Defendant was notified of his constitutional rights and, thereafter, provided a statement to the police.

On February 2, 1999, a year and four months after his arrest, Defendant was indicted by the grand jury. The first count of the indictment charged Defendant with the offense of promoting a dangerous drug in the third degree, HRS § 712-1243,² and the second count charged him with the offense of unlawful use of drug paraphernalia, HRS § 329-43.5(a).³

In Counts III and IV of the same indictment, the prosecution charged Co Defendant Rilei Shepard, also a resident of the searched premises, with the same offenses. On June 29, 1999, Shepard entered a plea of guilty pursuant to a plea bargain.

On July 14, 1999, Defendant filed a motion to dismiss the charges, alleging prejudice from preindictment delay. He argued that the indictment was untimely and, thus, violated his right to due process⁴ because it substantially prejudiced his ability to collect and to present lost "evidence which implicated other occupants as the possessors of the contraband for which he now stands accused." According to Defendant, "[o]ver the. . . 18 months [prior to the indictment], the rooms and residence have changed and there is no way to reconstruct the evidence, such as identification materials and the pants in which [Exhibit 1,] the pipe[,] was found, so as to establish the real owners of the pipe and drugs."

The prosecution, in its opposition memorandum, argued that Defendant had not shown substantial prejudice resulting from his alleged loss of memory or lost potential witnesses.⁵ It asserted that the "approximately fifteen months" transpiring from the search to the indictment was not prejudicial because Defendant had received a copy of the search warrant and, thus, was aware of the basis for the charges.

On July 14, 1999, Defendant also filed a motion to suppress the aforesaid Exhibits 1-4 and the interview and/or statements made by him to the police on October 1, 1997. In this regard, Defendant claimed that the warrant was improperly executed, there being no record that he or anyone else in the residence saw or received the warrant, and that his statements were inadmissible because he had not "knowingly waive[d] his right to counsel or against self-incrimination."

The motion to dismiss and motion to suppress were consolidated for hearing on August 6, 1999. At the hearing, HPD Officer Phillip Aguilar testified that, on October 1, 1997, he showed and served Defendant a search warrant, although this event was not indicated in his written police report. According to Aguilar, after the search of the residence, he arrested Defendant and took him to the Wai`anae police station. There, Aguilar showed Defendant an "HPD Form 81" entitled "Warning Persons Being Interrogated of Their Constitutional Rights" and read it to him. Defendant acknowledged understanding his constitutional rights and signed the form. Aguilar related that Defendant also inspected and signed an inventory sheet listing all the items seized in the execution of the search warrant.

According to the officer, at the time of the interview, Defendant was not under the influence of any drugs or alcohol and was not coerced in any manner. Aguilar admitted Defendant's statement was not tape recorded, but indicated he did not ordinarily tape record interviews and he had forgotten the tape recorder at another office. The officer reported that he typed Defendant's statement in Defendant's presence on "HPD Form 252" and then reviewed the statement with him before Defendant signed it.

Following the parties' arguments on the motions, the court denied Defendant's motion to dismiss on the ground that Defendant had failed to show any substantial prejudice such as the death or disappearance of a defense witness during the delay. The court found the search warrant was "either given to [Defendant] or left there [at the residence]." Despite the lack of an audio or video tape recording of Defendant's statement, the court determined that there was "uncontroverted [evidence] that the officer covered all the basis [sic] under HPD Form 81"⁶ before extracting Defendant's statement. As a result, the court also denied Defendant's motion to suppress the items seized, as well as his statement.

On appeal, Defendant challenges the court's ruling on his motion to dismiss, but does not contest its ruling on his motion to suppress.

B.

On August 17, 1999, after the jury was impaneled but before opening statements, Defendant requested a voluntariness hearing on the admissibility of his HPD Form 252 statement, identified at the hearing as Exhibit 8.⁷ In the statement, Defendant acknowledged: (1) living at the residence; (2) purchasing, using, and distributing drugs; (3) "smok[ing] crystal methamphetamine with Riley [sic]" the night before the search; and (4) owning "[t]he pipe with the residue that was found in the room ... and the packets of `ice'." The statement also confirmed that Defendant gave "th[e] statement of [his] own free will."

At the hearing, Aguilar testified, as he had before, to the procedure followed in obtaining the Form 252 statement. Defendant testified that he chose to speak with Aguilar, but did not agree with some of the statements on Form 252 because they were incorrect⁸ and oversimplified comments made during his twenty minute interview. Defendant explained that some of the statements may have been made by Rilei, who was interviewed before Defendant. According to Defendant, he did not sign the form voluntarily, but did so only because Aguilar told him that if he did not sign it, the owner of the house, his father, and Defendant's girlfriend, Stacy, would be arrested. Defendant indicated that he gave a false statement to prevent his father, Rilei, and Stacy from "get[ting] in trouble."

At the conclusion of the hearing, the court found Defendant had voluntarily made the statement to Aguilar and allowed it to be offered into evidence.⁹ The court's ruling at the voluntariness hearing is not challenged by Defendant on appeal.

C.

The following relevant evidence was adduced at trial. HPD Officer John Haina testified that, as a member of the team executing the search warrant, he was assigned to knock on the door of the residence, to announce the police had a warrant, and to make entry. Upon entering the residence, Haina located Defendant in a...