State v. Jackson

• Decision Date: 20 September 1991
• Docket Number: No. 14705,14705
• Citation: 817 P.2d 130,8 Haw.App. 624
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Elijah JACKSON, Jr., Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 130

817 P.2d 130

8 Haw.App. 624

STATE of Hawaii, Plaintiff-Appellee, v. Elijah JACKSON, Jr., Defendant-Appellant.

No. 14705.

Intermediate Court of Appeals of Hawai'i.

Sept. 20, 1991.

Syllabus by the Court

1. Rule 48(b)(1), Hawaii Rules of Penal Procedure (HRPP) (1977), requires the court to dismiss the charges against a defendant if trial on those charges is not commenced within six months of the defendant's arrest or the filing of the charge.

2. Rule 48(c)(5), HRPP, provides that periods of delay resulting from the absence or unavailability of the defendant shall be excluded when computing the time for trial commencement. A defendant should be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained or he resists being returned to the state for trial.

3. A defendant shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence.

4. Due diligence is a fluid concept that must be determined on a case by case basis and is a question of fact subject to the clearly erroneous standard of review.

5. Due diligence only requires the showing of a reasonable effort to procure a defendant for trial, not perfect vigilance and punctiliousness, or a good faith attempt to secure defendant's presence for trial by (1) commencing formal proceedings, or (2) making a sincere request to the sister state authorities.

6. The trial court's findings of fact in deciding both the question of due diligence and a Rule 48, HRPP, motion are subject to the clearly erroneous standard of review. However, whether those facts fall within one of Rule 48(c), HRPP's, exclusionary provisions is a question of law, the determination of which is freely reviewable. A lower court's finding of fact is clearly erroneous when even though there is evidence to support it, the appellate court, based on the entire record, is left with a definite and firm conviction that a mistake has been made.

7. The period of delay in the start of trial due to a defendant's being held in federal custody is excludable under Rule 48(c)(5), HRPP, when, despite numerous attempts by the prosecution, the United States Marshal's office refuses to accept service of a subpoena ad prosequendam or to give up custody of the defendant.

8. In determining whether a state used due diligence to procure a defendant's presence for trial, the focus is on what was done by the state rather than on what was not done. If authorities follow the procedure suggested by the custodian jurisdiction, justifiably relying on its assertions, then due diligence is established.

9. A central principle of the right to a fair trial is that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.

10. Due process requires not only the absence of actual bias, but that the court endeavor to prevent even the probability of unfairness.

11. A courtroom arrangement or procedure is inherently prejudicial when it poses an unacceptable threat to the defendant's due process right to a fair trial.

12. The use of identifiable security officers is not the type of courtroom practice that is inherently prejudicial, in light of the wide range of inferences a juror might draw from their presence.

13. Where a challenged courtroom practice is not inherently prejudicial, a defendant has the burden of demonstrating any actual prejudice caused by the practice.

14. The jury is presumed to adhere to the court's instructions that it should draw no inference from an event that occurred in the courtroom.

15. Where, very shortly after testifying in trial, a witness for the state changes her plea in another court to guilty in a separate, unrelated case, and the evidence against the defendant in the case at trial is overwhelming, the trial court does not abuse its discretion in refusing to allow the defendant to recall the witness for the purpose of impeaching her through the use of her guilty plea.

Charles B. Fey, on the brief, Kailua, for defendant-appellant.

Charlotte J. Duarte, Deputy Pros. Atty., City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., HEEN, J., and YIM, Circuit Judge, assigned by reason of vacancy.

HEEN, Judge.

Defendant-Apellant Elijah Jackson, Jr. (Defendant), appeals from his July 17, 1990, jury trial conviction on three counts of Promoting a Dangerous Drug in the First Degree. Hawaii Revised Statutes (HRS) § 712-1241(1)(b)(ii)(A) (1985). We affirm. ¹

Defendant argues that the trial court erred when it:

(1) denied his Rule 48, Hawaii Rules of Penal Procedure (HRPP) (1977), motion to dismiss (Rule 48 Motion) for pre-trial delay;

(2) denied his motion for mistrial; and

(3) denied his motion to recall a state witness for further cross-examination.

We find no error.

I.

A.

Defendant was first arrested on these charges by the Honolulu Police Department (HPD) on May 11, 1988. At that time, he was in federal custody on separate federal charges. The record shows that HPD released Defendant on the state charges pending investigation. However, Defendant remained in federal custody.

Defendant was indicted in this case on October 5, 1988, and he was arrested on the indictment on November 2, 1988. Arraignment was set for November 14, 1988. When Defendant failed to appear for arraignment, the State discovered he was still in federal custody, and the arraignment was continued to November 21, 1988. After numerous continuances, all due to Defendant's being in federal custody, Defendant was finally arraigned on July 20, 1989, ² and trial was set for October 16, 1989.

On September 6, 1989, Defendant filed his Rule 48 Motion and a motion for bill of particulars. ³ On September 11 and 18, 1989, respectively, Defendant filed a motion to extend the date set by the court for filing pre-trial motions and a motion to compel discovery. ⁴ On September 21, 1989, the Office of the Public Defender moved to withdraw as counsel for Defendant. On October 2, 1989, the court continued the hearing on the motions filed on September 6, 11, and 18, 1989, and appointed substitute counsel on October 6, 1989. The trial did not begin as scheduled on October 16, 1989. On November 15, 1989, the substitute counsel moved the court for leave to withdraw as counsel. The motion was granted, and the court again appointed counsel on December 6, 1989. ⁵ On December 11, 1989, Defendant's new counsel filed a motion to continue the trial. The motion was granted, and trial was rescheduled to the week of April 9, 1990. The Rule 48 Motion was rescheduled for April 3, 1990, but continued by stipulation of the parties to April 9, 1990. The Rule 48 Motion was denied on April 11, 1990. Trial began on May 30, 1990. ⁶

B.

1.

Defendant argues that the State knew he was in federal custody and knew that the federal authorities were holding him in Honolulu for most of the pre-trial period, but that the State did not use "the proper procedure" to obtain his presence prior to his arraignment on July 20, 1989. He contends that the period between his indictment and arraignment is not excludable under Rule 48(c)(5), HRPP. The State argues that the period is excludable due to Defendant's "unavailability" under Rule 48(c)(5), HRPP. We agree with the State.

2.

Rule 48(b)(1) requires the court to dismiss the charges against a defendant if trial on those charges is not commenced within six months of the defendant's arrest or the filing of the charge. In this case, the elapsed time between the indictment and trial obviously exceeded six months. However, Rule 48(c)(5), HRPP, provides that,

periods of delay resulting from the absence or unavailability of the defendant[,]

shall be excluded when computing the elapsed time.

The rule does not define the term "unavailability". We look to the American Bar Association Standards for Criminal Justice Relating to Speedy Trial (Supp.1986) (ABA Standards) for assistance. See State v. Johnson, 62 Haw. 11, 608 P.2d 404 (1980). 2 ABA Standards, Standard 12-2.3(e), at 12.27, states, in pertinent part:

A defendant should be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained or he resists being returned to the state for trial.

Under the ABA Standards the prosecution is not excused from seeking the defendant's presence. However, the period of the defendant's absence is excludable where the prosecutor's attempts are unsuccessful. Id., Commentary, at 12.32.

The ABA Standards do not provide a gauge for examining the prosecution's efforts to obtain the defendant's presence. However, under the Federal Speedy Trial Act, 18 U.S.C.S. § 3161(h)(3)(B) (Law.Co-op.1979),

a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence[.]

We adopt the due diligence standard established by the Federal Speedy Trial Act.

Due diligence is a fluid concept that must be determined on a case by case basis, Commonwealth v. Lloyd, 370 Pa.Super.Ct. 65, 535 A.2d 1152 (1988); Commonwealth v. DeMarco, 332 Pa.Super.Ct. 315, 481 A.2d 632 (1984), and is a question of fact subject to the clearly erroneous standard of review. See Ingram v. State, 703 P.2d 415 (Alaska App.1985).

To establish due diligence, other jurisdictions have required the state to show "reasonable efforts" to procure the defendant for trial, Commonwealth v. Lloyd, 370 Pa.Super.Ct. at 83, 535 A.2d at 1162 ("Due diligence only requires the showing of a reasonable effort to procure a defendant for trial, not perfect vigilance and punctiliousness."), or a "good faith attempt" to secure defendant's presence for trial by (1) commencing formal proceedings, or (2) "making a...