State v. English, s. 6210

• Decision Date: 11 May 1978
• Docket Number: 6211,Nos. 6210,s. 6210
• Citation: 594 P.2d 1069,61 Haw. 12
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. John Basilio Puaaloha ENGLISH, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 1069

594 P.2d 1069

61 Haw. 12

STATE of Hawaii, Plaintiff-Appellant, v. John Basilio Puaaloha ENGLISH, Defendant-Appellee.

Nos. 6210, 6211.

Supreme Court of Hawai'i.

May 11, 1978.

Syllabus by the Court

1. The right to a speedy trial in a criminal prosecution has no application until the putative defendant becomes an "accused". Whatever prosecutorial delay that may occur prior to one becoming an "accused" may, however, be challenged on due process ground.

2. A putative defendant does not become an "accused" so as to invoke his Sixth Amendment right to speedy trial until either formal indictment or information has been filed against him or else he has become subject to actual restraints imposed by arrest and holding to answer a criminal charge.

3. A juvenile who faces criminal charges as an adult becomes an "accused" for speedy trial purposes upon issuance of the family court's order waiving its jurisdiction over him.

4. The family court's delay in waiving its jurisdiction over a juvenile defendant must be characterized as "pre-accusatory" and thus such delay will be scrutinized against his constitutional right to due process of law.

5. Although proof of actual prejudice resulting from a pre-accusatory delay is generally a necessary element of a due process claim, this court will also consider the reasons for the delay in determining whether dismissal of the criminal charge is required.

6. One may not complain of adverse effects and prejudice resulting from a delay in the prosecution of a case where such delay was the result of a benefit granted to him.

7. The failure of the family court to provide a juvenile accused of committing a crime a hearing before waiving its jurisdiction over him as required by HRS § 571-22 (1976) constituted a denial of due process.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Marie N. Milks, Deputy Public Defender, Honolulu, for defendant-appellee.

Before RICHARDSON, C. J., and OGATA, and MENOR, JJ. ^*

RICHARDSON, Chief Justice.

The State of Hawaii appeals from an order granting a motion to dismiss the indictments against defendant-appellee, John Basilo English, in Criminal Nos. 48739 and 48740. ¹

In December of 1974, two petitions were filed in the family court alleging that on the ninth and nineteenth days of November 1974 appellant engaged in conduct which, if committed by an adult, would constitute two separate offenses of burglary in the second degree in violation of HRS § 708-811 (1976). ² At the time of these alleged offenses, appellee was sixteen years of age and a resident at the Hawaii Youth Correctional Facility. ³

On December 27, 1974, the prosecution filed a petition in the family court requesting that the court waive its exclusive jurisdiction over appellee, pursuant to HRS § 571-22 (1976), and order that he be held for further criminal proceedings in the circuit court. A hearing on this petition was held on February 27, 1975, wherein a committee appointed to study and investigate the appropriateness of waiving jurisdiction reported its findings. ⁴ After taking the petition under advisement, the family court issued an interim order (filed February 28, 1975) directing

that a coordinated treatment plan be developed by personnel of the Hawaii Youth Correctional Facility, Division of Vocational Rehabilitation, Olomana School, Family Court, and the Courts and Corrections Mental Health Team assigned to the Hawaii Youth Correctional Facility Which shall assume the possibility that the Court may deny the petition for waiver. (Emphasis added).

In another petition filed in family court on May 12, 1975, appellee was alleged to have committed an act which, if charged against an adult, would have constituted the offense of robbery in the first degree in violation of HRS § 708-840 (1976). On the date of the alleged robbery, March 23, 1975, appellee was seventeen years of age.

On May 14, 1975, the prosecution again petitioned the family court to waive its jurisdiction over appellee; this time with respect to appellee's alleged robbery offense. From the record, there is no indication that a hearing on this petition was ever held. Nevertheless, on January 7, 1976, the family court issued an order waiving its jurisdiction over appellee and directing that he be held for criminal proceedings in the circuit court to face the robbery charge. This order expressly referred to the prosecution's petition for waiver of jurisdiction as to the burglary offenses and the hearing held thereon, and also noted the court's consideration of "the course and results of treatment afforded said minor in accordance with its interim order after the hearing." Thereafter, on January 16, 1976, the family court amended its waiver order so as to include the two alleged burglary offenses.

On February 4, 1976, an Oahu grand jury returned two indictments against appellee: one charging him with two counts of burglary in the second degree (Criminal No. 48739) and the other charging him with robbery in the first degree (Criminal No. 48740). Subsequently, appellee moved to dismiss both indictments alleging, Inter alia, that the delay by the government in prosecuting the charges against appellee was unreasonable and prejudicial, and thereby denied him of his rights to due process of law and to a speedy trial. After a hearing on this motion, the trial court dismissed both indictments for lack of speedy trial. This appeal followed.

This appeal raises the question of whether the family court's delay in waiving its jurisdiction over appellee denied him of his right to due process of law or violated his right to a speedy trial. The State contends that, although a juvenile is entitled to due process of law, the right to a speedy trial does not apply to juvenile proceedings. Further, it asserts that neither of these rights, even if applicable, was violated by the pre-waiver delay. Appellee, on the other hand, argues that the trial court properly held that he was denied of his right to a speedy trial, and that the trial court's dismissal of the indictments against him can be sustained on other grounds, including the violation of his right to due process and Rule 48(b) of the Hawaii Rules of Criminal Procedure.

No. 6210

I

The right to a speedy trial in a criminal prosecution is a fundamental guarantee provided for by both the United States and the Hawaii Constitutions. ⁵ This right, however, has no application until the putative defendant becomes an "accused." United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Almeida, 54 Haw. 443, 509 P.2d 549 (1973). Whatever prosecutorial delay that may occur prior to one becoming an "accused" must be challenged, if at all, on due process ground. United States v. Marion, supra, 404 U.S. at 324-26, 92 S.Ct. 455; State v. Bryson, 53 Haw. 652, 500 P.2d 1171 (1972). See also State v. Almeida, supra, 54 Haw. at 556 n. 2, 509 P.2d at 551 n. 2.

In the instant case, appellee asserts that he became an "accused" for speedy trial purposes once the prosecution filed its petition in family court requesting that it waive its exclusive jurisdiction over him. Accordingly, he urges this court to utilize the standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in scrutinizing the delay alleged herein. ⁶ See State v. Almeida, supra.

A putative defendant does not become an "accused" so as to invoke his Sixth Amendment right to a speedy trial until either formal indictment or information has been filed against him or else he has become subject to actual restraints imposed by arrest and holding to answer a criminal charge. United States v. Marion, supra. This court has adopted the same interpretation with respect to our own constitution. State v. Bryson, 53 Haw. at 655, 500 P.2d at 1173. Although in the case before us we are precluded from making a simple application of the above principle, ⁷ we believe appellee became an "accused" upon being waived by the family court. Thus, the family court's delay in waiving its jurisdiction over appellee must be characterized as Pre -accusatory and we will examine it against his constitutional right to due process of law. See Marion, supra ; Bryson, supra.

The United States Supreme Court has stated that, although " 'the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges'," United States v. Marion, supra, 404 U.S. at 322, 92 S.Ct. at 464, Quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), it " 'does not fully define the (defendants') rights with respect to the events occurring prior to indictment' " and "that the Due Process Clause has a limited role to play in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). Accordingly, in its decision in Marion, the Court suggested that the Due Process Clause would require dismissal of an indictment where it was shown that the pre-accusatory delay resulted in substantial prejudice to the defendant's right to a fair trial and that the delay "was an intentional device to gain tactical advantage over the accused." 404 U.S. at 324, 92 S.Ct. at 465 (footnote and citation omitted). ⁸

Although proof of actual prejudice resulting from a pre-accusation delay is generally a necessary element of a due process claim, this court will also consider the reasons for the delay in determining whether dismissal of the criminal charge is required. See United States v. Lovasco, supra, State v. Bryson, supra. We note that this balancing approach has been approved by a substantial number of courts in other jurisdictions. See, e. g., United States v. Weaver, 565 F.2d 129 (8th Cir. 1977), Cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978); Coffey v. State, Alaska, 585 P.2d 514 (1978); Scherling v. Superior Court of Santa Clara County, ...