State v. Key

• Decision Date: 29 January 2020
• Docket Number: NO. CAAP-18-0000064,CAAP-18-0000064
• Citation: 456 P.3d 191 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. John Patrick KEY, Defendant-Appellant
• Court: Hawaii Court of Appeals

456 P.3d 191 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.John Patrick KEY, Defendant-Appellant

NO. CAAP-18-0000064

Intermediate Court of Appeals of Hawai‘i.

January 29, 2020.

On the briefs:

Kevin O'Grady, for Defendant-Appellant.

Chad Kumagai, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

(By: Leonard, Presiding Judge, Chan and Wadsworth, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant John Patrick Key (Key ) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment filed on January 11, 2018 (Judgment ), in the District Court of the First Circuit, Wahiawa Division (District Court ).¹ Key was convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII ), in violation of Hawaii Revised Statutes (HRS ) § 291E-61(a)(1) (Supp. 2018).²

Key raises three points of error on appeal, contending that the District Court erred when it: (1) failed to dismiss the case for violation of Hawai‘i Rules of Penal Procedure (HRPP) Rule 48 ; (2) denied Key's motions to compel; and (3) failed to conduct an adequate Tachibana colloquy.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Key's points of error as follows:

(1) HRPP Rule 48(b)(1) requires criminal charges to be dismissed if trial does not commence within 180 days from arrest or the filing of the charges, whichever is sooner. State v. Hoey, 77 Hawai‘i 17, 28, 881 P.2d 504, 515 (1994). HRPP Rule 48 provides, in relevant part:

Rule 48. DISMISSAL.

....

(b) By court. Except in the case of traffic offenses that are not punishable by imprisonment, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months:

(1) from the date of arrest if bail is set or from the filing of the charge, whichever is sooner, on any offense based on the same conduct or arising from the same criminal episode for which the arrest or charge was made; or

(2) from the date of re-arrest or re-filing of the charge, in cases where an initial charge was dismissed upon motion of the defendant; or

(3) from the date of mistrial, order granting a new trial or remand, in cases where such events require a new trial.

Clauses (b)(1) and (b)(2) shall not be applicable to any offense for which the arrest was made or the charge was filed prior to the effective date of the rule.

(c) Excluded periods. The following periods shall be excluded in computing the time for trial commencement:

(1) periods that delay the commencement of trial and are caused by collateral or other proceedings concerning the defendant, including but not limited to penal irresponsibility examinations and periods during which the defendant is incompetent to stand trial, pretrial motions, interlocutory appeals and trials of other charges;

(2) periods that delay the commencement of trial and are caused by congestion of the trial docket when the congestion is attributable to exceptional circumstances;

(3) periods that delay the commencement of trial and are caused by a continuance granted at the request or with the consent of the defendant or defendant's counsel;

(4) periods that delay the commencement of trial and are caused by a continuance granted at the request of the prosecutor if:

(i) the continuance is granted because of the unavailability of evidence material to the prosecution's case, when the prosecutor has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at a later date; or

(ii) the continuance is granted to allow the prosecutor additional time to prepare the prosecutor's case and additional time is justified because of the exceptional circumstances of the case;

....

(d) Per se excludable and includable periods of time for purposes of subsection (c)(1) of this rule.

(1) For purposes of subsection (c)(1) of this rule, the period of time, from the filing through the prompt disposition of the following motions filed by a defendant, shall be deemed to be periods of delay resulting from collateral or other proceedings concerning the defendant: motions to dismiss, to suppress, for voluntariness hearing heard before trial, to sever counts or defendants, for disqualification of the prosecutor, for withdrawal of counsel including the time period for appointment of new counsel if so ordered, for mental examination, to continue trial, for transfer to the circuit court, for remand from the circuit court, for change of venue, to secure the attendance of a witness by a material witness order, and to secure the attendance of a witness from without the state.

(2) For purposes of subsection (c)(1) of this rule, the period of time, from the filing through the prompt disposition of the following motions or court papers, shall be deemed not to be excluded in computing the time for trial commencement: notice of alibi, requests/motions for discovery, and motions in limine, for voluntariness hearing heard at trial, for bail reduction, for release pending trial, for bill of particulars, to strike surplusage from the charge, for return of property, for discovery sanctions, for litigation expenses and for depositions.

(3) The criteria provided in section (c) shall be applied to motions that are not listed in subsections (d) (1) and (d)(2) in determining whether the associated periods of time may be excluded in computing the time for trial commencement.

Key contends the District Court erred when it found that only 147 includable days elapsed between Key's arrest on January 16, 2016, and the filing of his Motion to Dismiss for Rule 48 Violation on December 29, 2016. Key submits that 189 includable days elapsed during that time period due to a delay for court congestion without exceptional circumstances pursuant to HRPP Rule 48(c)(2).

It is undisputed that there was no finding of an exceptional circumstance to continue the hearing on November 17, 2016. However, as the District Court noted, Key had filed a motion to suppress, which was still pending at the time of his Rule 48 motion. Under HRPP Rule 48(d)(1), the time period from the filing of a motion to suppress through the prompt disposition is excludable. State v. Sujohn, 64 Haw. 516, 520-21, 644 P.2d 1326, 1328-29 (1982). "Every pretrial motion is subject to prompt disposition through due diligence by all concerned."³ State v. Soto, 63 Haw. 317, 320, 627 P.2d 279, 281 (1981) overruled on other grounds by Hoey, 77 Hawai‘i 17, 881 P.2d 504. Thus, the prompt disposition requirement is subject to a due diligence standard, not an exceptional circumstance standard.

Key acknowledges a defense continuance from October 13, 2016, to November 17, 2016 (which took the includable period to 147 days), but argues that there was congestion on November 17th, which makes the subsequent period includable. The District Court rejected this argument, finding that so long as the motion to suppress is handled in an expeditious manner, the period that the motion is pending is not counted against the State. On that basis, the District Court denied Key's Rule 48 motion. We conclude that the District Court was not wrong in its determination that only 147 includable days had elapsed.

(2) Key argues that the District Court erred by denying various motions to compel.

"[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). Impeachment evidence falls within the Brady rule because such evidence is favorable to the accused and, if used effectively, may make the difference between conviction and acquittal. United States v. Bagley, 473 U.S. 667, 676 (1985) (citations omitted).

In Birano v. State, 143 Hawai‘i 163, 181, 426 P.3d 387, 405 (2018) (quoting State v. Tetu, 139 Hawai‘i 207, 219, 386 P.3d 844, 856 (2016) ), the Hawai‘i Supreme Court held: "Central to the protections of due process is the right to be accorded a meaningful opportunity to present a complete defense." (Brackets omitted). "Therefore, the prosecution has a constitutional obligation to disclose evidence that is material to the guilt or punishment of the defendant." Id. at 182, 426 P.3d at 406 (citation omitted). "The duty to disclose evidence that is favorable to the accused includes evidence that may be used to impeach the government's witnesses by showing bias, self-interest, or other factors that might undermine the reliability of the witness's testimony." Id. (citation omitted). "The U.S. Supreme Court thus has rejected any ... distinction between impeachment evidence and exculpatory evidence in the context of Brady disclosure obligations." Id. (citation and internal quotation marks omitted).

Here, Key sought to compel disclosure of impeachment evidence. "In every instance where a witness is sought to be impeached, the only issue that arises is whether the witness is telling the truth." Asato v. Furtado, 52 Haw. 284, 292, 474 P.2d 288, 294 (1970). "It is character and reputation for truth and veracity, not any other character trait, that is in issue." Id.

Key challenges the denial of his various motions to compel impeachment material on the grounds that: (1) some material was destroyed, but the State did not reveal when it was destroyed and by whom, the State failed to preserve the material, and the State failed to disclose the material to Key; (2) the State would only disclose material relating to truth or veracity; and (3) Key should have received all personnel files, information regarding whether an officer was found not credible, information regarding false statements, information regarding abuse of power, and annual reviews and assessments, including training manuals. Key suggests that Milke v. Ryan, 711 F.3d 998 (9th...