APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 07-1-1741)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Fujise and Reifurth, JJ.)
Defendant-Appellant Sione Tali Taumoepeau (Taumoepeau) appeals from the March 3, 2010 judgment of conviction and sentence of the Circuit Court of the First Circuit (circuit court).*fn1 Taumoepeau was convicted on one count of Promoting a Dangerous Drug in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 712-1243 (Supp. 2010), and sentenced to incarceration for five years.
Taumoepeau argues that the circuit court violated Rule 48 of the Hawaii Rules of Penal Procedure (HRPP) and the U.S. and Hawaii Constitutions, because trial was held 820 days following his arrest. He also argues that his trial counsel was ineffective for failing to file a motion to dismiss for lack of a speedy trial.
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 Taumoepeau's points on appeal as follows and affirm the conviction.
(1) The circuit court did not commit plain error by not dismissing the charges under HRPP Rule 48(b), given that Taumoepeau did not file a motion to dismiss under that rule. "Rule 48(b), by its terms, can be invoked only by a motion to dismiss made by the defendant." State v. McDowell, 66 Haw. 650, 651, 672 P.2d 554, 555-56 (1983). Accordingly, the circuit court lacks authority to dismiss sua sponte the charges against Taumoepeau based on Rule 48. See id.
(2) Taumoepeau's right to a speedy trial under the Sixth Amendment of the U.S. Constitution and article I, section 14 of the Hawaii Constitution was not violated. Taumoepeau and the State agree that we should apply the test given in Barker v. Wingo, 407 U.S. 514 (1972). See also State v. Almeida, 54 Haw. 443, 447, 509 P.2d 549, 551-52 (1973) (adopting the Barker test). Under Barker, we consider four factors in determining whether a trial was timely: "(1) length of delay; (2) the reasons for the delay; (3) the defendant's assertion of his or her right to speedy trial; and (4) prejudice to the defendant." State v. White, 92 Hawaii 192, 201-02, 990 P.2d 90, 99-100 (1999).
The State concedes that the Barker inquiry was triggered by the 820-day delay in starting trial.
As to the second Barker factor, although Taumoepeau conceded in his opening brief that the second Barker factor weighed against him, he asserts in his reply brief that this factor "may weigh" in his favor. The State argues this factor can be equally weighed for or against Taumoepeau. The Hawaii Supreme court has acknowledged that "different weights should be assigned to different reasons for the delay in bringing an accused to trial." State v. Wasson, 76 Hawaii 415, 420, 879 P.2d 520, 525 (1994) (internal quotation marks omitted).
Taumoepeau's delays were attributable to his failure to appear and his request for a continuance. The State concedes responsibility for some delays caused by the absence of its witness Officer John Locey (Ofr. Locey) and court congestion. The Hawaii Supreme Court and the U.S. Supreme Court has considered court congestion as a "more neutral reason" for trial delay than deliberate attempts to hinder the defense and should accordingly "be weighted less heavily." Wasson, 76 Hawaii at 420, 879 P.2d at 525 (quoting Barker, 407 U.S. at 531) (internal quotation marks omitted). Moreover, there is nothing to suggest that Ofr. Locey's absence was a deliberate attempt to hinder the defense's case. Accordingly, this factor does not weigh in Taumoepeau's favor.
Taumoepeau concedes the third factor weighs against him because he never asserted his right to a speedy trial. In evaluating the fourth Barker factor, courts look at the purpose of the constitutional right to a speedy trial: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Wasson, 76 Hawaii at 421, 879 P.2d at 526 (quoting Barker, 407 U.S. at 532) (internal quotation marks omitted).
Taumoepeau concedes that the first interest is inapplicable because Taumoepeau was out on bond for a substantial period before trial. He maintains the second interest weighs in his favor "because the length of [the] delay alone increased his anxiety." The supreme court has said that some anxiety can be assumed but "something more than a bare assertion of disquietude is generally required before this form of prejudice will weigh in favor of the accused." Wasson, 76 Hawaii at 422, 897 P.2d at 527. Taumoepeau does not present any evidence of "something more."
Taumoepeau claims that he was prejudiced because he was prevented from calling Moesolo Tuiloma (Tuiloma), who had died before trial, as a witness. Taumoepeau does not make an offer of proof regarding Tuiloma's testimony, nor does he indicate when Tuiloma passed away. Had Tuiloma died during the delay, that would weigh in favor of Taumoepeau. See White, 92 Hawaii at 205, 99 P.2d. at 103. However, Taumoepeau did not list Tuiloma in his naming of witnesses filed May 12, 2008, when a trial would have been timely, even according to Taumoepeau's analysis. We thereby ...