State v. Quelnan

• Decision Date: 11 January 1989
• Docket Number: No. 13040,13040
• Citation: 70 Haw. 194,767 P.2d 243
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Armando Q. QUELNAN, also known as Andy Quelnan, Defendant-Appellant, and Nestor B. Constantino, Defendant.
• Court: Hawaii Supreme Court

Page 243

767 P.2d 243

70 Haw. 194

STATE of Hawaii, Plaintiff-Appellee, v. Armando Q. QUELNAN, also known as Andy Quelnan, Defendant-Appellant and Nestor B. Constantino, Defendant.

No. 13040.

Supreme Court of Hawai'i.

Jan. 11, 1989.

Syllabus By The Court

1. The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. And when the court revokes probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which he was convicted.

2. The duty of the prosecution is to seek justice, to exercise the highest good faith in the interest of the public and to avoid even the appearance of unfair advantage over the accused.

3. Upon defense counsel's timely request for production, State should have produced the urine specimens to defense counsel in order to give Defendant the opportunity to conduct independent testing.

4. Defense counsel's production request made prior to the probation revocation hearing was essentially similar to an accused's pre-trial discovery request for 5. The positive drug findings resulting from the January 26, 1988 and February 11, 1988 samples was an inappropriate basis in determining Defendant's future probationary status, and the suppression of the positive drug findings is the appropriate sanction herein.

relevant material or information within the prosecution's possession or control. Hence, State's failure to timely produce the requested material [70 Haw. 195] violated the inherent principles of justice and fundamental fairness accorded to an accused.

6. Defendant's failure to report his change in employment status within 48 hours was excusable under the circumstances.

Jonathan Ezer (Alvin T. Sasaki on the briefs; Ezer & Sasaki, of counsel), Honolulu, for defendant-appellant.

Jeffrey M. Albert, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

HAYASHI, Justice.

Defendant-Appellant Armando Q. Quelnan ("Defendant") appeals from the Order of Revocation of Probation and Resentencing entered in the First Circuit Court on May 6, 1988. The circuit court's order revoked Defendant's probation and resentenced Defendant to a concurrent ten-year term of imprisonment on each count, with mittimus issued forthwith. ¹ We reverse.

I. FACTUAL BACKGROUND

On July 10, 1986, Defendant was indicted on three counts of Promoting a Dangerous Drug in the Second Degree (HRS § 712-1242(1)(c)). ² On November 28, 1986, Defendant pled guilty to all three counts.

On January 7, 1987, Defendant was sentenced to five years probation on each count. Five general probation conditions were listed, including the reporting of "any change of address or change of employment within 48 hours." Record at 118.

Seven special probation conditions were also listed, including:

1) imprisonment for a period of three months;

2) upon his release, Defendant refrain "from the use of illicit/unprescribed drugs/substances[ ]";

3) submitting to drug and alcohol testing as directed by the Adult Probation Division ("APD"), "with the provision that a positive finding ... may be considered prima facie evidence of probation violation[ ]"; and

4) obtaining and maintaining "gainful employment and/or be enrolled in an educational/vocational training program" throughout the probationary period.

Id. at 119.

On March 2, 1988, the State of Hawaii ("State") filed a Motion for Revocation of Probation and Resentencing. Based on the affidavit of Defendant's probation officer, Michelle Wentzell ("Officer Wentzell"), State averred that Defendant had violated the following conditions of probation:

1) on September 4, 1987, Defendant was indicted in Criminal No. 87-1079 with various gambling offenses; ³ 2) on January 26, 1988, "[D]efendant provided a urine specimen that was positive for amphetamines[ ]";

3) on February 11, 1988, "[D]efendant provided a urine specimen that was positive for amphet[a]mines[ ]"; and

4) "[a]n attempt to verify the [D]efendant's employment with Sida Taxi resulted in a report that the [D]efendant pays a taxi rental fee but does not drive for Sida and therefore has misrepresented his employment and source of income" to Officer Wentzell.

Record at 163-64.

On April 4, 1988, defense counsel requested that the Office of the Prosecuting Attorney ("prosecutor's office") provide Defendant with the urine samples taken from him on January 26, 1988 and February 11, 1988, for the purpose of conducting independent testing of the specimens. By letter dated April 11, 1988, the prosecutor's office responded:

The probation officer did not save the speicmens [sic] taken from your client on January 26, [1988] and February 11, 1988.

Record at 177.

On May 4, 1988, Defendant filed a Motion for Exclusion of Urinalysis Results. On May 6, 1988, a consolidated hearing was held before the First Circuit Court (Judge Ronald B. Greig) on Defendant's motion to exclude and on State's motion to revoke probation. After the circuit court orally denied Defendant's motion to exclude, ⁴ State's motion to revoke probation was then heard.

State presented its case through the testimony of Officer Wentzell. ⁵ Defendant then testified. Thereafter, the circuit court found that Defendant had "inexcusably violated the terms and conditions of probation," leaving the circuit court with "no alternative but to grant the motion to revoke probation." Transcript of May 6, 1988 at 36. The circuit court then resentenced Defendant to a concurrent ten-year term of imprisonment on each count, with mittimus issued forthwith.

Following Defendant's timely notice of appeal, the facts in this case took a disturbing twist. On September 16, 1988, in an attempt to determine the procedures under which Defendant's specimens were discarded, State first learned that on April 11, 1988, the specimens in question, although no longer in the possession of the APD, were in the possession of an independent testing laboratory, which, under contract with the APD, retains such specimens for six months after a positive test result. ⁶

II. PROBATION REVOCATION

HRS § 706-625(c) (Supp.1988) provides in pertinent part (emphasis added): "The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony." HRS § 706-625(e) (Supp.1988) states, in turn: "When the court revokes probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which he was convicted."

While no specific findings were made, upon a careful review of the record, it is clear the circuit court based its decision to revoke Defendant's probation on two grounds: 1) the positive urinalysis test results; and 2) Defendant's misrepresentation

of his employment status to Officer Wentzell. Contra note 3, supra.

A. DRUG VIOLATION

"The duty of the prosecution is to seek justice, to exercise the highest good faith in the interest of the public and to avoid even the appearance of unfair advantage over the accused." State v. Miller, 67 Haw. 121, 122, 680 P.2d 251, 253 (1984); see also ABA Standards for Criminal Justice § 3-1.1 (2d ed. Supp.1982).

Whether through inadvertence, neglect or otherwise, we find unjust and unfair, State's:

1) failure in producing Defendant's urine specimens upon defense counsel's timely request;

2) misrepresentation to defense counsel that Defendant's urine specimens were not saved;

3) subsequent use of the positive test results as one of the bases in seeking revocation, despite its failure in producing the specimens for independent testing upon defense counsel's timely request; and

4) five month delay, from April 4, 1988, the date defense counsel requested production of the specimens, to September 16, 1988, in attempting to determine the true nature and location of the specimens in question.

Accordingly, we hold that upon defense counsel's timely request for production, State should have produced the urine specimens to defense counsel in order to give Defendant the opportunity to conduct independent testing.

Defense counsel's production request made prior to the probation revocation hearing, we believe, was essentially similar to an accused's pre-trial discovery request for relevant material or information within the prosecution's possession or control. ⁷ See Hawaii Rules of Penal Procedure ("HRPP") Rule 16(b)(1)(iv); cf. State v. Kutzen, 67 Haw. 542, 696 P.2d 351 (1985) (State's unintentional false representation to defense counsel at pre-trial discovery conference that it had no videotapes of defendant which it had yet to produce violated HRPP Rule 16(b)(1)(ii)). Hence, State's failure to timely produce the requested material violated the inherent principles of justice and fundamental fairness accorded to an accused.

State's submission of Defendant's positive urinalysis results into evidence solely through Officer Wentzell's testimony causes us additional concern. Cf. United States v. Bell, 785 F.2d 640 (8th Cir.1986) (good cause shown for allowing the government to present urinalysis laboratory reports and police reports at probation revocation hearing without producing the persons who prepared the reports, but good cause not shown for admitting a supervising probation officer's hearsay testimony about a police investigation on probationer's alleged cocaine trafficking); United States v. Penn, 721 F.2d 762 (11th Cir.1983) (admittance of probation officer's testimony on the positive urinalysis results, the laboratory reports, and a letter from the laboratory summarizing the results, deemed sufficiently trustworthy and reliable); United States v. Caldera, 631 F.2d 1227 (5th Cir.1980) (per curiam) (introduction of laboratory reports containing positive cocaine finding at probation...