State v. Nihipali

• Decision Date: 30 November 1981
• Docket Number: No. 7489,7489
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Milton N. NIHIPALI, Jr., and George Mikaele, Defendants, and Steven Yuen, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 407

637 P.2d 407

64 Haw. 65

STATE of Hawaii, Plaintiff-Appellee, v. Milton N. NIHIPALI, Jr., and George Mikaele, Defendants, and Steven Yuen, Defendant-Appellant.

No. 7489.

Supreme Court of Hawai'i.

Nov. 30, 1981.

Syllabus by the Court

1. Whether a defendant's right to speedy trial has been violated is determined by balancing the length of delay, reasons for the delay, the defendant's assertion of his right to speedy trial, and prejudice to the defendant.

2. The length of delay must be "presumptively prejudicial" before the other factors may be considered. A one-year, three-week delay between arrest and trial is presumptively prejudicial.

3. In consenting to be tried with his co-defendants, defendant will not be heard to argue that delays caused by his co-defendants' motions are not attributable to him for purpose of sixth amendment analysis.

4. The element of prejudice should be considered in light of the interests which the right to speedy trial was designed to protect, namely, (1) to prevent oppressive pre-trial incarceration; (2) to minimize anxiety and concern accompanying public accusation; and (3) to limit the possibility that the defense may be impaired by the passage of time.

5. Periods of delay resulting from any pre-trial motion concerning the defendant, from the filing of the motion through the prompt disposition thereof, are excluded in computing time for trial commencement pursuant to Rule 48(c)(1).

Rogers M. Ikenaga, Honolulu, on the brief for defendant-appellant Steven Yuen.

Lee T. Nakamura, Deputy Pros. Atty., Honolulu, on the brief for plaintiff-appellee.

Before RICHARDSON, C.J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

LUM, Justice.

This is an appeal by defendant-appellant Steven Yuen from a conviction of theft in the first degree by extortion, HRS §§ 708-830(3) and 708-831(1)(b). In this appeal, appellant challenges his conviction on the grounds that he was initially denied his right to a speedy trial guaranteed by the sixth amendment to the United States Constitution and provided for under Rule 48(b) of the Hawaii Rules of Penal Procedure (HRPP). ¹ Additionally, appellant claims that there was insufficient evidence to support the jury's verdict. For the reasons stated below, we reject the arguments proffered and affirm.

I.

Appellant was arrested on April 9, 1978, for the crime of theft in the first degree by extortion. He was subsequently indicted on June 15, 1978, and charged with both the theft offense and with criminal conspiracy. Two other persons, Milton Nihipali, Jr., and George Mikaele, were also indicted on similar and additional counts arising out of the same and other episodes and were tried with appellant Yuen as co-defendants. ²

Trial was originally scheduled for the week beginning September 11, 1978, but was reset for the week beginning September 25, 1978, and later for March 12, 1979. Trial did not commence until April 30, 1979, approximately one year and three weeks after the arrests were made.

In the intervening period, all three defendants individually filed numerous motions which, together with a crowded court calendar and the necessity of transferring the case twice to different courts, contributed to considerable delay in bringing the case to trial. On August 4, 1978, defendant Nihipali moved for severance and separate trials on the grounds that proof of alleged criminal acts by co-defendants not involving Nihipali would prejudice his right to a fair trial. Appellant joined this motion on August 14, 1978, but later withdrew his motion for joinder on October 3, 1978. The motion for severance became further complicated by the addition of two charges against Nihipali, and an amended motion was filed on August 30, 1978. The motion was not decided until March 9, 1979, nearly seven months after its filing, by an order granting and denying the motion in part, leaving appellant joined with co-defendants for trial.

On November 6, 1978, appellant joined another of defendant Nihipali's motions, a motion to suppress mechanical tape recordings filed on August 15, 1978, amended on March 1, 1979, and not decided until April 30, 1979, the first day of trial. Additionally, appellant filed a motion to dismiss the indictment for lack of speedy trial on October 20, 1978. The motion was denied on November 27, 1978, on the grounds that the delay complained of was attributable to several defense pre-trial and discovery motions, and the motions to sever and to suppress joined by Yuen, the latter of which was still pending due to counsels' inability to agree on certain stipulated facts. Appellant again moved to dismiss the indictment for lack of speedy trial on March 7, 1979, which motion was joined by defendants Nihipali and Mikaele and never decided. ³

II.

The sixth amendment to the United States Constitution and article I, section 14 of the Constitution of the State of Hawaii guarantee an accused in all criminal prosecutions the right to a speedy trial. This right attaches the moment a person becomes an "accused." In this jurisdiction, "accused" denotes the point at which a formal indictment or information has been returned against a person or when he becomes subject to actual restraints on his liberty imposed by arrest, whichever first occurs. State v. Bryson, 53 Haw. 652, 655, 500 P.2d 1171, 1173 (1972).

Whether the Government has violated an accused's right to speedy trial is determined by applying the four-part test articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and adopted by this court in State v. Almeida, 54 Haw. 443, 509 P.2d 549 (1973), to the particular facts of each case. The four factors to be considered in determining whether dismissal is warranted ⁴ are: (1) length of delay; (2) reasons for the delay; (3) defendant's assertion of his right to speedy trial; and (4) prejudice to the defendant. Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192. Because the right to speedy trial, unlike other rights guaranteed by the Constitution, is unusually amorphous and serves to protect the separate, often conflicting interests of the accused and of the public in the speedy disposition of cases, the weight accorded each of these factors is to be determined on an ad hoc basis. "None of these four factors is to be regarded 'as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial,' but rather, 'they are related factors and must be considered together with such circumstances as may be relevant.' " State v. English, 61 Haw. 12, 16 n.6, 594 P.2d 1069, 1072-73 n.6, quoting Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193. As the Supreme Court recognized in Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905), "(t)he right to a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."

The length of delay serves as a triggering mechanism to the Barker analysis. Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192; State v. O'Daniel, 62 Haw. 518, 524, 616 P.2d 1383, 1388 (1980). Unless the delay is "presumptively prejudicial," the court need not inquire further into the other factors. Barker, supra; O'Daniel, supra. While the Supreme Court deliberately refused to fix a time at which delay would be presumed prejudicial, this court has held a delay of three months between arrest and indictment nonprejudicial, State v. O'Daniel, supra, and one of seven months presumptively prejudicial. State v. Almeida, supra. See State v. Smith, 59 Haw. 456, 583 P.2d 337 (1978) (eighteen-month interval between incident and trial triggered inquiry into reasons for delay); State v. Mata, 1 Haw.App. 31, 613 P.2d 919 (1980) (nine-month delay sufficient to require consideration of Barker elements). See generally Project, Tenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1979-1980, 69 Geo.L.J. 211, 378-79 (1980).

Appellant's trial did not commence until one year and three weeks had elapsed since his arrest and incarceration. We believe that such delay was presumptively prejudicial, warranting inquiry into the remaining Barker factors. See also United States v. Henry, 615 F.2d 1223 (9th Cir. 1980) (one-year delay presumptively prejudicial); United States v. Mitchell, 615 F.2d 1133 (5th Cir. 1979) (fifteen-month delay sufficient to trigger Barker analysis).

The primary reasons for the delay in this case are the filing of numerous defense pre-trial motions, the length of time the trial court took to rule thereon, and the circuit court's "extraordinarily" congested trial docket generally which precluded prompt rescheduling of trial. The Supreme Court in Barker noted that the "neutral" reason of overcrowded courts should be weighed less heavily than, for example, deliberate and tactical prosecution attempts to delay trial. Id., 407 U.S. at 531, 92 S.Ct. at 2192. Where the filing of defense motions and the delay inherent therein are principally responsible for lapse of time, however, courts generally demonstrate little sympathy for the defendant who then claims his right to speedy trial has been violated thereby.

In State v. Smith, supra, for example, we refused to recognize as bona fide defendant's contention that his right to speedy trial had been violated, where the nine months between the indictment and trial were attributable to the severance of charges into three separate trials done at his request.

(H)e shall not be heard because the delays were a direct result of his own act or were the result of a benefit granted to him.

.... Because the appellant had assistance of counsel when he made the motion to sever for separate trials, he should have known that the granting of the motion would require delay in the trial process.

Id. 59 Haw. at 469, 583 P.2d at 345-46. See also Keeny v. Swenson, 458 F.2d 680 (8th Cir. 197...