State v. Durry
| Citation | 665 P.2d 165,4 Haw.App. 222 |
| Decision Date | 18 May 1983 |
| Docket Number | No. 8312,8312 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Maria DURRY, also known as Fenika Faamatau, Maria Naia Faamatau, Malia Faamatau, Ruta Faamatau, Ruta Lasa, Fenika McKernan, Fenika N. Durry, Maria Naia Durry, Fenika Maria Durry, Maria Feneka, Maria Pavoc and Fenika Lauvasa, Defendant-Appellant, and Mika Faamatau, also known as Mike Faamatau, Lauvasa Lauvasa, Mika Lauvasa, Michael Lauvasa and Mika Faamatao, and Maelega Fereti, also known as Maelega Feleti, Maelega Faoasau Feleti, and Maaelega Feleti, Defendants. |
| Court | Court of Appeals of Hawai'i |
Syllabus by the Court
1. A defendant's speedy trial rights under the sixth amendment to the United States Constitution and article I, section 14 of the Hawaii State Constitution accrue when defendant is arrested.
2. A delay of nineteen months and seventeen days from arrest to trial is presumptively prejudicial to defendant's speedy trial rights and requires the court to consider the reasons for the delay, the defendant's assertion of her rights, and prejudice to defendant, together with other relevant circumstances, in determining whether the defendant's speedy trial rights were violated by the delay.
3. Where exclusion of all periods of time provided for in 48(c) from the entire period of delay in beginning a trial results in a remaining period of time of less than six months from indictment to trial, defendant has not been deprived of her speedy trial right under Rule 48(b), HRPP.
4. A witness may testify as to a statement made to him by a third person where the statement testified to is found by the trial court to be trustworthy, of probative value, and necessary.
William H. Brady, Honolulu (Brady & Brady, Honolulu, of counsel), for defendant-appellant.
Arthur E. Ross, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.
Before BURNS, C.J., and HEEN and TANAKA, JJ.
Defendant Maria Durry (Durry) appeals her conviction of the offenses of manslaughter, Hawaii Revised Statutes (HRS) § 707-702 (1976), and robbery in the first degree, HRS § 708-840 (1976).
Durry contends that she was deprived of her right to a speedy trial under the sixth amendment to the United States Constitution, article I, section 14 of the Hawaii State Constitution, 1 and Rule 48(b), Hawaii Rules of Penal Procedure (HRPP) (1977), and that the court erred in admitting hearsay testimony against her. We find no error and affirm.
On September 25, 1979 Durry was arrested for questioning on the charges of murder and robbery in the first degree and second degree, 2 and has been continuously in custody since that date. On February 10, 1980 the Oahu Grand Jury returned an indictment against her and co-defendants Mika Faamatau (Faamatau) and Maelega Fereti (Fereti) for murder and robbery in the first degree. Durry was not tried until May 11, 1981, nineteen months and seventeen days after her arrest. On May 13, 1981 the jury rendered its verdict of guilty of the lesser offense of manslaughter and of robbery in the first degree. Durry was sentenced to incarceration on June 22, 1981.
On April 20, 1981, just prior to her April 23, 1981 trial date, Durry filed a motion to dismiss for violation of Rule 48(b), 3 HRPP, and for lack of speedy trial. An order denying the motion was entered on May 4, 1981.
Durry's right to a speedy trial accrued when she was arrested on September 25, 1979. State v. Almeida, 54 Haw. 443, 509 P.2d 549 (1973); State v. Bryson, 53 Haw. 652, 500 P.2d 1171 (1972); State v. Mitchell, 1 Haw.App. 121, 615 P.2d 109 (1980). The State concedes that the nineteen-month delay to the time of trial was "presumptively prejudicial," State v. Valletta, 66 Haw. 351, 662 P.2d 204 (1983), and that the other factors for determining whether there has been a violation of Durry's speedy trial rights must be examined. State v. Nihipali, 64 Haw. 65, 637 P.2d 407 (1981); State v. O'Daniel, 62 Haw. 518, 616 P.2d 1383 (1980); State v. Almeida, supra. Those other factors are (1) reasons for the delay, (2) the defendant's assertion of her rights, and (3) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Nihipali, supra; State v. O'Daniel, supra; State v. Almeida, supra. None of those factors alone is regarded as either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial. Instead, they are related factors and must be considered together with such other circumstances as may be relevant. In deciding the question, the courts must engage in a process of balancing those factors. Barker v. Wingo, supra; State v. English, 61 Haw. 12, 16 n. 6, 594 P.2d 1069, 1072 n. 6 (1979).
Durry argues that the primary reasons for the delay were that her attorney was unavailable for trial during part of the pre-trial period and the court erred in not giving her an earlier trial date. Durry does not contend that the State deliberately delayed the trial for the purpose of hindering her defense. Our review of the record indicates that there were many more reasons for the delay than those advanced by Durry.
We begin this discussion by first taking judicial notice of the additional charge of robbery in the second degree lodged against Durry when she was arrested in the instant case. Sakamoto v. Chang, 56 Haw. 447, 539 P.2d 1197 (1975); In re Ellis, 55 Haw. 458, 522 P.2d 460 (1974), cert. denied, 419 U.S. 1109, 95 S.Ct. 782, 42 L.Ed. 805 (1975); Wohlschlegel v. Uhlmann-Kihei, Inc., 4 Haw.App. 123, 662 P.2d 505 (1983); Sapp v. Wong, 3 Haw.App. 509, 654 P.2d 883 (1982). The offense took place on August 21, 1979, but Durry was not arrested until September 25, 1979 and she was unable to post bail for her release. The grand jury returned an indictment in that case (Cr. 53759) on January 9, 1980. Durry was tried and found guilty of the lesser offense of theft in the second degree on March 21, 1980.
Durry was arraigned on the instant charges on February 25, 1980. Faamatau was arraigned on March 3, 1980 and Fereti was arraigned on March 17, 1980. Trial for the three defendants was set for April 14, 1980. The public defender for Fereti, however, was not appointed until March 20. Moreover, on March 21, Faamatau filed a motion for severance which he subsequently withdrew on April 3. Consequently, the April trial date was continued to the week of June 2, 1980.
On April 15, 1980, new counsel was appointed for Fereti because his original public defender was also representing Faamatau. On May 28, Fereti filed a motion to suppress. Apparently because of this motion, the June trial date was again continued until the week of September 8, 1980. In the meantime, Durry's two previous lawyers withdrew and the court was required to appoint new counsel for Durry on March 5, 1980 and again on July 22, 1980, when present counsel was appointed.
Hearings on Durry's motions were continued at Durry's request from August 21, 1980, to August 28, 1980, to September 18, 1980, to September 29, 1980, and finally to October 6, 1980. On that last date, the motion to sever was granted. In the meantime, the trial was also continued and on October 6 new dates were set for the severed trials. Trial for Faamatau and Fereti was set for December 18-20, 1980 and for Durry on December 23-24, 1980.
The trials were not held in December and nothing appears in the record to indicate any continuance or any reason for it. On February 27, 1981, however, an order prepared by Durry's attorney was entered granting her motion to continue her trial date from February 26, 1981 to April 23, 1981, but the trial was not held until May 11, 1981. Again, the record does not show the reason for the continuance to May, but we infer that it resulted from Durry's filing of her motion to dismiss on speedy trial grounds.
We have no difficulty in finding that until her motion for severance was granted on October 6, 1980 the delay was caused by the pre-trial motions, discovery, and proceedings relating to all defendants. Durry does not argue and cannot take the position that delays caused by her co-defendants' motions cannot be attributed to her. Cf. State v. Nihipali, supra. Moreover, the bulk of the pre-trial activity was on behalf or on account of Durry. Durry cannot complain about the delay from February 26 to April 23, 1981, since that continuance was on her motion. Nor can Durry complain about the delay from April 23 to May 11, 1981, as it resulted from her motion to dismiss. Additionally, a portion of the delay was occasioned by the trial of the second degree robbery charge against Durry. Therefore, the only period that concerns us is from October 6, 1980 to February 26, 1981.
The events after October 6, 1980 are confusing because of the incomplete record. However, we are able to recapitulate those events from the interchange between the court and counsel in the transcript of the April 22, 1981 hearing on Durry's motion to dismiss. In our reading of the transcript, it appears that the State was not at fault for any delay.
As noted above, the December trial dates were set so that Faamatau and Fereti would be tried ahead of Durry. It appears from the trial judge's remarks that this sequence was set because Durry did not want to go to trial before her co-defendants. Although defense counsel disputed this, we note that the trial judge's remarks are supported by the court's minutes of the pre-trial conference of October 6, 1980, when the December trial dates were set, and the minutes for February 17, 1981, when the April dates were set. Moreover, the order of continuance filed on February 27, 1981 and prepared by Durry's attorney sets the trial date to follow co-defendants' trial.
On the basis of oral argument before this court and the April 22, 1981 transcript, it appears that the reason for the continuance of the December 8, 1980 trial date...
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