A New Way to Read Rule 48 and Introducing Spoliation Remedy to Brady Violations
State v. Alkire (HSC June 25, 2020)
Background. Lisa Alkire was driving her red jeep during the early morning hours in October on the Likelike Highway when she was pulled over the police and arrested for driving under the influence of an intoxicant. She was taken to the Kalihi police station. Five days later, her lawyer faxed a request to preserve various materials to the HPD Central Receiving Division. The letter requested video and audio recordings that may contain evidence of the case. It listed Alkire’s information, date of arrest, citation number, and State ID booking number. The request was also cc’d to the prosecutor’s office. The next day, counsel faxed Central Receiving an addendum that specifically requested to preserve video from the Kalihi police station. That too was cc’d to the prosecutor’s office. Hard copies were mailed to the prosecutor’s office, Central Receiving, and the main HPD Headquarters. Alkire was charged on November 1, 2016.
Alkire filed a motion to compel for the arresting and investigating officers’ internal files for any impeachment evidence and requested the court to order the prosecutor “to review the files of its witnesses to determine whether impeachment materials exist and not shift the burden to police or non-lawyer bureaucrats.” She filed a second motion to compel production of a video recording showing her at the police station after her arrest at the Kalihi station. Alkire argued that the preservation letters put the prosecutor and the police on notice that these materials would be requested. Alkire claimed that Kalihi Police Department has video recordings for up to 30 days before it is wiped clean. The prosecution had never responded to her request for the video. The prosecution opposed the motion on the grounds that the first request was a fishing expedition and the second request was not material because Alkire got to the station 40 minutes after the arrest and there was no way of telling if the video would show that Alkire exhibited no signs of impairment.
At the hearing on the motion and trial date, the Hon. Judge James Ashford of the district court, asked the prosecution if it had possession of the any exculpatory or sentence-reducing information that had not been turned over to the defense. The prosecution did not. The district court denied the motion to compel disclosure of the officers’ files. The district court denied the second motion on the grounds that Alkire failed to show the video actually existed or if it did exist, that it was material.
The parties waived opening statements and the patrol officer testified that he saw a red Jeep veer onto the right shoulder of the Likelike Highway three times before he decided to stop the vehicle. When he approached the jeep he saw Alkire and smelled a strong odor of alcohol. After the patrol officer was excused and a brief recess, the case was continued for approximately eight weeks due to chronic court congestion.
At the next court date, the prosecution called another officer who conducted the standardized field sobriety tests. In the middle of this officer’s cross-examination, the district court interrupted and announced that trial had to be continued. Counsel wanted a longer continuance to get transcripts from trial up to this point. The prosecutor objected and suggested getting audio recordings. The district court agreed with the prosecution and declined the defense’s request for a delay. The district court accommodated the officer’s schedule and continued trial from March to June.
The parties with their witnesses arrived to court in June and learned that the district court sua sponte issued an order striking the trial date and setting a status hearing without witnesses for August 2. Weeks later another order was issued rescheduling trial to August 4.
Alkire moved to dismiss pursuant to speedy trial violations and HRPP Rule 48. Alkire argued that “commencing” a trial and continuing the proceedings beyond the six-month period in Rule 48 must be stopped. The motion was denied and trial resumed. The district court heard the rest of the evidence and convicted Alkire based on the testimony of the officers. Alkire appealed to the ICA, which affirmed.
It’s not Enough to Call it a “Trial” and then Continue it. HRPP Rule 48, which requires dismissal if “trial is not commenced within six months . . . from the date of the arrest.” Alkire argued that her speedy trial rights and Rule 48 were violated because the district court did not “meaningfully” commence trial within six months of her arrest. Alkire urged the HSC to adopt the standard set out in Rhinehart v. Municipal Court, 677 P.2d 1206 (Cal. 1984).
There, the California Supreme Court examined if its equivalent to Rule 48 was violated when the trial court impaneled a jury the day before its rule would have been violated and announced that due to court congestion there would be a five or six day delay before evidence would be presented. Id. at 1208.
The California Supreme Court rejected this tactic:
[A] case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn.
Id. at 1211-1212. The HSC found this rationale persuasive and consistent with Rule 48’s objective in bringing cases to trial expeditiously. The HSC agreed with Alkire and held that “in order to effectuate its intent, HRPP Rule 48 requires a ‘meaningful’ commencement of trial.”
The HSC explained that a trial is “meaningfully” commenced when the trial court has “‘reasonably’ committed its resources to the trial, which also requires that the parties be ready to proceed, and, if applicable, a panel of prospective jurors summoned and sworn[.]”
Here’s the Rub (for Alkire). The HSC acknowledged this was a new rule and, therefore, it would not apply to Alkire’s case. See State v. Kaneaiakala, 145 Hawai'i 231, 235, 450 P.3d 761, 765 (2019). The rule applies to trials that commence only after June 25, 2020.
Due Process Does not Require the Prosecutor to Sift Through Personnel Files. The HSC rejected Alkire’s argument that the prosecutor had to look through the materials to determine and fine impeachment evidence. The government must disclose to the defense evidence that is “material either to guilt or to punishment.” Kyles v. Whitley, 514 U.S. 419, 432 (1995). Evidence is “material” “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 433. This imposes an affirmative duty on the prosecutor to learn of favorable evidence known to other government agents. Youngblood v. West Virginia, 547 U.S. 867, 869-870 (2006).
Hawai'i’s criminal discovery rules distinguish between felony and non-felony cases. State v. Lo, 116 Hawai'i 23, 26, 169 P.3d 975, 978 (2007). For the latter, the court has discretion to apply HRPP Rule 16’s mandatory disclosure rules upon “a showing of materiality and if the request is reasonable[.]” HRPP Rule 16(d).
The HSC held that Alkire’s request for impeachment materials for the patrol and investigating officers was both “material” and “reasonable.” But the prosecutor represented that it made efforts to look for the materials, but simply did not have them. Thus, if the materials did exist they were held by other government personnel. The HSC held that there was no constitutional violation here and that the prosecutor made a good-faith effort to cause the requested materials to be made available to the defense. The district court did not err in declining Alkire’s demand that the prosecutor personally review the personnel files.
The Stationhouse Video is a Different Matter. The HSC also examined the denial of the motion to compel the stationhouse video. Like the other discovery request, the request for the videos was “material” and “reasonable.” The district court erred in refusing to compel the disclosure of the video. A further hearing is required before a new trial can (meaningfully) commence.
Before the retrial, the district court must determine if the video recording was preserved.
[T]he duty of disclosure is operative as a duty of preservation, and that principle must be applied on a case-by-case basis[.]
In certain circumstances, regardless of good or bad faith, the State may lose or destroy material evidence which is so critical to the defense as to make a criminal trial fundamentally unfair without it.
State v. Matafeo, 71 Haw. 183, 187, 787 P.2d 671, 672-673 (1990). The HSC ordered the district court on remand to apply Matafeo to the video. If the recording was not preserved, the district court has to determine if it was so critical to the defense that it would make trial fundamentally unfair. If so, the case must be dismissed—regardless of the good or bad faith of the prosecution.
A New Remedy for Lost Evidence. If not and trial must proceed without the materials, the district court must fashion an appropriate remedy “to cure prejudice suffered by one party as a result of another party’s loss or destruction of evidence.” Stender v. Vincent, 92 Hawai'i 355, 362, 992 P.2d 50, 57 (2000). The HSC held that in criminal cases where the prosecution should have had the materials and despite the accused’s timely request to preserve the evidence, the video was lost or destroyed, the trier of fact is free to draw an adverse inference that the lost evidence was unfavorable to the spoliator. Id. at 364-365, 992 P.2d at 59-60.
Spoliation in Criminal Cases. The HSC has adopted a civil remedy for discovery violations in criminal cases. If the case is not dismissed pursuant to Matafeo and trial proceeds, the prosecution suffers an “adverse inference” for destroyed or losing evidence that the defendant had diligently requested to preserve. In other words, the trial court will have to fashion a jury instruction to infer that the last evidence was favorable for the defendant. This part of the opinion—long advocated by Brady scholars—was unanimous.
Justice Nakayama’s Concurrence and Dissent. Justice Nakayama agreed that the prosecutor need not personally review files of the testifying officers and that Alkire was entitled to the video. She disagreed about the new “meaningful” commencement standard for Rule 48. Justice Nakayama wrote that the new rule amends Rule 48 and adds language and standards that are simply not there. Moreover, there was no guidance for trial courts in ascertaining a “meaningful” commencement.
Justice Nakayama felt that the canons of rules and statutory interpretation call upon courts to examine the “language of the statute itself.” State v. Choy Foo, 142 Hawai'i 65, 72, 414 P.3d 117, 124 (2018). Adding the word “meaningful” to the rule does damage to these well-established canons. Moreover, Justice Nakayama wrote that this case did not violate Rule 48 even under the new standard. She believed that this standard offers very little guidance for courts in understanding what it means to “meaningfully” commence a trial. The Chief Justice joined.Does Alkire’s Case Violate the New Rule in Alkire? The Chief Justice and Justice Nakayama don’t think so. And the HSC does not actually apply the new rule here. Instead it held that it would apply only to those trials that (meaningfully) commence after the date of publication. That means we have no official application of the new rule. That also means we are not sure if calling a witness on the first day of trial and continuing after excusing that witness was a “meaningful” commencement of the bench trial. The parties were certainly ready to proceed, which was one of the elements of the new rule. But what’s not so clear is determining when the court has “committed its resources to the trial.” Future cases will have to flesh this part out.