State v. Diaz
| Decision Date | 10 December 2002 |
| Docket Number | No. 23860.,23860. |
| Citation | 58 P.3d 1257,100 Haw. 210 |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Alicia DIAZ, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Emmanuel G. Guerrero, on the briefs, for defendant-appellant.
Caroline M. Mee, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.
Defendant-appellant Alicia Diaz (Diaz) appeals from the judgment of the first circuit court, the Honorable Karen S.S. Ahn presiding, convicting her of promoting a dangerous drug in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1242 (1993),1 and unlawful possession of drug paraphernalia, in violation of HRS § 329-43.5(a) (1993).2 On appeal, Diaz argues that the trial court erred when it: (1) denied her motion to suppress evidence obtained during an illegal search; (2) denied her motion to dismiss charges for violation of Hawai`i Rules of Penal Procedure (HRPP) Rule 48; and (3) denied her right to a fair trial and due process resulting from the cumulative effect of errors that occurred throughout the trial. We hold that: (1) the police officers validly executed the search warrant; (2) the prosecution exercised due diligence in its attempts to locate Diaz to serve the bench warrant and the number of excludable days resulted in trial commencing within the 180 days required by HRPP Rule 48; and (3) Diaz's argument that the cumulative effect of instances of prejudicial error and misconduct denied her right to a fair trial is without merit.
On December 4, 1998, a search warrant for the premises of the Fil-Am Video store was executed. At approximately 6:45 p.m., police officers and detectives with the Honolulu Police Department (HPD) arrived at the video store during regular business hours.3 The detectives observed an unidentified man leaving the video store and requested that he re-enter the store. The detectives followed this man into the store, and, upon entering, the detective identified his office and stated that he was executing a search warrant. The detective asked one of the customers if a door located on the "makai"4 side of the store was an office door. After receiving an affirmative response, HPD Officer William Richardson testified that he "approached that door and [] knocked three separate times announcing myself, and the purpose being there with the search warrant, and there was no — no one came to the door to open it." Specifically, the officer stated, "[P]olice department, search warrant." After waiting approximately fifteen seconds, he turned to his sergeant and was instructed to break the door. The office door was then kicked in.
Upon breaking the door, the officers discovered Diaz standing in front of a desk holding a white unsealed envelope. Diaz then dropped the envelope on the floor, stating that she had "just found that particular envelope on the ground." Inside the unsealed envelope that fell to the floor were baggies that the officers identified as resembling "ice." Diaz's name was written on the outside of the envelope.
On October 27, 1999, Diaz was indicted on one count of promoting a dangerous drug in the second degree and one count of unlawful use of drug paraphernalia. A grand jury issued a bench warrant on October 28, 1999. On January 12, 2000, Diaz was served with the bench warrant for her arrest. On July 31, 2000, Diaz was convicted as charged. This timely appeal followed.
On July 18, 2000, Diaz filed a motion to dismiss charges for violation of HRPP Rule 48.5 A hearing commenced on July 21, 2000, in which Diaz argued that the deputy sheriff's efforts to locate Diaz did not amount to due diligence. As evidence for this argument, Diaz noted that the deputy sheriff completed a computer check, but failed to check with the post office, the phone company,6 or white pages of the telephone book. Diaz argued that she had reported the theft of her car to the police on November 15, 1999 and at that time had given the correct address. She further argued that on December 10, 1999 she had been involved in a minor traffic accident and had given the police her address. The prosecution argued that the deputy went to three different addresses. Neighbors at two locations had no knowledge of Diaz. The third address was a closed road. Finally, the prosecution argued that the deputy completed monthly computer checks. The trial court concluded that the "77 days that it took for the sheriffs to serve the grand jury bench warrant upon the defendant. . . [was] based upon the unavailability of the Defendant." The prosecution had requested a continuance of the trial on March 10, 2000 because a material witness was going to school on the mainland and unable to attend trial until the summer break. At the hearing, both defense counsel and Diaz consented to continuing the trial until the summer. The trial court denied the motion to dismiss charges finding that 125 days remained to try the case under HRPP Rule 48.
On July 27, 2000, the second day of trial, Diaz filed a motion to suppress evidence collected during the execution of the search warrant at the Fil-Am Video store. The prosecution argued that HRPP Rule 12(f)7 provides that pretrial issues such as motions to suppress are deemed waived if not raised before trial. The trial court ruled that there was no good cause shown to grant relief because "both counsel had full discovery," both counsel "had full access to the defendant," and a motion could have been "put forth within the deadline required."
Prior to trial commencing, Diaz filed a motion in limine seeking the exclusion of certain evidence, including reference to the search warrant addressed to Diaz.8 The trial court limited the reference to the search warrant addressed to the Fil-Am Video store. The following exchange occurred among the court, defense counsel, and the prosecutor:
Trial commenced on July 26, 2000. During direct examination the prosecution asked Officer Bumanglag "[n]ow, were you assigned to execute a search warrant on December 4, 1998?" After receiving an affirmative answer, the prosecutor asked where the warrant was executed. No further reference by the prosecution was made regarding the warrants. During cross-examination, defense counsel questioned Officer Bumanglag about the search warrant. Officer Bumanglag testified that Diaz was the subject of a search warrant. Defense counsel then asked, "[N]ow, if I were to tell you that the warrant itself made no reference to Alicia Diaz, would that be correct?" The prosecution objected and asked that the document be marked for identification. After viewing the document, the prosecutor objected because defense counsel was not using the complete warrant.9 Defense counsel argued that the purpose of introducing that part of the warrant was to impeach Officer Bumanglag by demonstrating that Diaz's name was not on that warrant. The court permitted defense counsel to submit the warrant over the prosecution's objection. Questioning again proceeded with the following exchange:
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