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.
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