State v. Mitchell, 7044
| Decision Date | 05 August 1980 |
| Docket Number | No. 7044,7044 |
| Citation | 1 Haw.App. 121,615 P.2d 109 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Walter Clyde MITCHELL, also know as Clyde, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. In determining whether the right to a speedy trial has been violated, a balancing test incorporating the following factors is used: the length of delay; the reason for delay; the defendant's assertion of the right; and prejudice to the defendant.
2. The right to a speedy trial is born when a person becomes an "accused" through charge or arrest.
3. Memory loss occurring before a person becomes an "accused" is not relevant to determination of whether that person has suffered prejudice in balancing test analysis.
4. The State's interest in continuing undercover police detective's effectiveness in pursuing purveyors of contraband narcotics is a legitimate State purpose and here justifies four-month delay in seeking indictment.
Christopher D. Ferrara, Robinson & Ferrara, Honolulu, for defendant-appellant.
Michael P. Akana, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.
Before HAYASHI, C. J. and PADGETT and BURNS, JJ.
Defendant/appellant Walter Clyde Mitchell, convicted of Promoting a Dangerous Drug in the Second Degree after a jury trial in April 1978, appeals from the judgment filed June 2, 1978. The primary issue on this appeal is whether Mitchell's constitutional 1 right to a speedy trial was violated. Mitchell was convicted of selling heroin to an undercover police detective. The offense occurred on August 10, 1976. He was indicted on December 8, 1976, when the detective and another police officer emerged from their undercover capacity to testify before the Oahu grand jury about drug-related offenses. Mitchell was arrested on December 12, 1976 and released on his own recognizance by an order dated December 23, 1976.
Mitchell's trial was originally scheduled for the week of April 18, 1977. On April 13 and 14, 1977, Mitchell, through his counsel, filed four motions. Two are pertinent here. The first was a motion to consolidate Mitchell's case with two cases against other defendants involving the same informer and the same police tactical operation. The second was a motion to continue Mitchell's trial until sometime in June 1977 on the ground that an expert witness crucial to his case would be on the mainland until May 24, 1977. A hearing on all four motions was held on April 18, 1977 before Judge Toshimi Sodetani. The motion to continue was granted without opposition. The court indicated that its June and July calendar was mostly full and that although there was a possibility of an early June trial date, it might have to go to August. Mitchell's counsel said that that was all right with Mitchell. No trial date was set.
Judge Sodetani requested memoranda of law from both parties on the motion to consolidate, which were submitted as requested by May 2, 1977. The motion to consolidate was scheduled for July 26, 1977 and was continued to allow newly assigned prosecuting attorneys to submit additional legal arguments. The State filed a supplemental memorandum in opposition to the motion to consolidate on August 5, 1977.
On October 4, 1977, a further hearing on the motion to consolidate was held before Judge John C. Lanham, to whom Mitchell's case had been transferred. Christopher D. Ferrara, Mitchell's counsel, and Larry C. Y. Lee, counsel for the two other defendants seeking consolidation, were present. After argument, the court indicated its inclination to deny the motion to consolidate and raised the question of setting trial dates for the three defendants. Counsel for the other two defendants indicated that his clients, who were still in the United States Army, had been passed up on promotions and pay because of the pending trial. Mitchell had been discharged from the Army in June 1977.
Both defense counsel then indicated their intention to file motions to dismiss based on violation of the right to speedy trial. Mr. Lee indicated that he would need "perhaps a month" to prepare for trial. Mr. Ferrara was silent. Addressing himself to the court clerk, Judge Lanham said,
Mitchell's counsel filed the motion to dismiss on November 15, 1977. A hearing on the motion was unavailable until December 6, 1977. The trial was rescheduled for January 30, 1978. At the December 6 hearing:
She says, "Well, I can't give you a trial on the 30th." I said, "Somehow you are going to have to do it." I said, "Well, I need it file-stamped." So I went ahead and took the December 8th (sic?) date.
Mitchell testified at the December 6 hearing. Defense counsel offered to stipulate that Mitchell remembered the events of August 10, 1976. It was his difficulty in remembering events before and after that date which the defense alleged was prejudicing his case. In making this argument, defense counsel stressed that the "total overall delay", both pre- and post-indictment was involved.
Mitchell testified that when he obtained legal counsel in December 1976, he didn't remember too much of what had transpired in August. His memory of events on the date of the offense, but not of surrounding dates, had been helped somewhat by review of the police reports and conversations with counsel.
He also testified that at the time of indictment, he was serving in the Army as a medical specialist at Tripler Hospital. As a result of the arrest, he was "labelled as a drug pusher" and harassed by officers and staff members. He wasn't trusted as much as he had been. His room was searched. Eventually, he asked to be discharged. Once discharged, bail was required, as his military ties had been a basis for release on his own recognizance. His family, he said, was shocked. He had never been in "any trouble" prior to this charge. After release from the service, he had sought work unsuccessfully and attributed the rejections he encountered to the pending felony charge, as some of the applications had questions regarding that matter.
Mitchell also alleged that two or three former co-workers at the hospital who were potential character witnesses had been transferred to unknown mainland duty stations while the trial was pending. He was unable, he said, to recall their names or genders and had not identified them to his counsel in December 1976. At the time of the motion hearing, he was a self-employed salesman of a diet product and was attending school part-time.
Judge Lanham's Order Denying Motion to Dismiss Indictment, filed on December 21, 1977, states that "the evidence and the file show no denial of defendant's rights" to a speedy trial and to due process of law "for reasons basically the same as those set forth in the decision on a similar motion" filed in the cases of the other two defendants who had also sought consolidation. That decision was attached to the decision in the instant case. Noting a sequence of dates between April and November 1977 on which motions, memoranda and orders were filed, the court stated:
In my opinion this shows an active file and is not the type of case where the court can honestly say there was any undue delay to the extent that defendants were denied a speedy trial. It is also noted that the defendants were not in jail or restrained of their liberty while awaiting trial, 2 and were represented by counsel throughout, and never indicated any desire to the court for a speedy trial that is shown in the record. As far as the court is concerned it has not been shown where any real prejudice was caused to defendants by any delay.
Defendants' claim that their memory has dimmed is related to the pre-indictment period, but this is not very plausible when considered in connection with the nature of the offense. One should have no difficulty remembering whether or not he sold heroin to the undercover agent on an approximate date four or five months ago, where such act is an unusual event. Of course, if the defendants contend that the undercover agent's testimony is cut out of whole cloth, time doesn't make much difference; and if the defense is entrapment, defendants must remember the incident or else how could they raise that defense.
The record indicates that sometime in January 1978 the court sua sponte reset Mitchell's trial to begin on April 14, 1978, apparently due to calendar congestion. Mitchell's counse...
To continue reading
Request your trial
-
State v. Durry
...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,......
-
State v. Phillips, No. 23941 (Haw. App. 6/4/2002)
...Lau, 78 Hawai`i at 65, 890 P.2d at 302 (emphasis, internal brackets, and citations omitted). See also State v. Mitchell, 1 Haw. App. 121, 128, 615 P.2d 109, 114 (1980) ("[Defendant's] claim that the lapse of time prevented him from calling three former co-workers, whose names and genders he......