[42]*42KLEIN, Justice.
Following a jury trial, defendant-appellant Willie R. Jackson was convicted of one count of sexual assault in the second degree, in violation of Hawaii Revised Statutes (HRS) § 707-731(l)(a) (1993),1 and one count of sexual assault in the fourth degree, in violation of HRS § 707-733(l)(a) (1993).2 Jackson appeals from the judgment of the circuit court, contending that the court erred in: (1) denying his motion to dismiss for violation of Hawaii Rules of Penal Procedure (HRPP) Rule 48(b);3 (2) providing the jury with a definition of “strong compulsion” prior to commencement of trial; (3) restricting the scope of Jackson’s recross-examination of a witness; (4) instructing the jury on included offenses; (5) denying Jackson’s motion for new trial based upon the prejudicial effect of defense counsel’s filing of a motion for judgment of acquittal at the close of the prosecution’s case-in-chief; and (6) denying Jackson’s motion for a new trial based upon post-verdict disclosures made by the jury foreperson. Jackson also claims that (7) insufficient evidence was presented at trial to support his convictions because the prosecution failed to establish the element of “strong compulsion.”
We hold that Jackson received a fair trial, free from reversible error, and that sufficient evidence was presented by the prosecution to support his convictions. However, • because we agree with Jackson that the circuit court erred in concluding that the commencement of his trial was within the time limits set forth in HRPP Rule 48, in light of our precedent, we have no choice but to vacate Jackson’s convictions and remand for entry of an order dismissing the charges against him, with or without prejudice, in the circuit court’s discretion.
We recognize that by vacating Jackson’s convictions the purposes sought to be accomplished by HRPP Rule 48 will likely be subverted. For that reason, we take this opportunity to request that the Permanent Committee on Rules of Penal Procedure and Circuit Court Criminal Rules reassess HRPP Rule 48 and propose any amendments it deems necessary to prevent the reoccurrence of such an absurd result in the future.
I. BACKGROUND
On the night of June 2, 1991, Jackson, Kaipo Annon, and the complaining witness (CW), all of whom worked together at a Waikiki hotel, decided to meet after work at Hot Rods Cafe (the Cafe), where Jackson’s girlfriend, Monica, worked as a waitress. The three co-workers had some drinks and food, talked, and listened to music with another friend, Willie Meyers, until the Cafe closed at 2:00 a.m.
[43]*43After the Cafe closed, the four walked to where they had parked. There was concern about Annon, who was driving a moped and lived in Hawai‘i Kai, driving home at that late hour after having drunk “pretty heavy in the bar.” Meyers offered to give Annon a ride home, but Annon did not want to leave his moped. Meyers then asked CW to follow Annon home as Annon drove his moped home. CW agreed, and asked Jackson to accompany her because she “didn’t want to drive [to Annon’s residence in Hawaii Kai] alone.” Jackson agreed, on the condition that they take his, rather than CW’s, car.
Jackson and CW followed Annon as far as Kahala, where Jackson “just turned the car around and ... went to Kahala Beach Park.” After arriving at the park, the two got out of the car and talked.
Jackson testified that at that point, he decided thát they should return and he took CW directly back to where her ear was parked.
CW’s testimony regarding the events that followed their arrival at Kahala Beach Park was drastically different than Jackson’s account. According to CW’s testimony, Jackson started kissing her, and she told him to stop and pulled away. They returned to the car, where Jackson reclined the seats, unzipped his pants, and “pulled out” his erect penis. CW testified that she felt “seared” and had not expected Jackson to do that.
Jackson informed CW that he wanted her to “jack him off.” Still frightened, CW refused, and told him that she wanted to go back to her own ear. Jackson ignored CW’s request and instead “grabbed” her hand, “put it around his penis,” and started “making [her] hand go up and down.” Because CW “didn’t want to move [her] hand up and down,” Jackson covered her hand with his and forced her hand to “go up and down” on his penis. CW tried to pull her hand away, told Jackson that she did not want to do it, and again pleaded that she be returned to her car. Jackson told her that he would not take her back until she made him “come,” essentially giving CW an ultimatum: either perform manual sex or get out of the car and walk.
CW did not get out of the car because it was 2:30 or 3:00 in the morning, nobody was around, and it was dark. She was scared, “afraid to just walk,” because “you hear stories about young girls and people getting murdered.” CW did manage to free her hand, but Jackson “kept pulling it back.” During this period, Jackson hid the car keys. At one point, CW succeeded in pulling her seat up, but Jackson reclined it back down and “jumped” over to her side. CW was “crying” and “making a lot of noise, hoping somebody would hear.” She repeatedly told Jackson that she “wanted to go back to [her] car, to stop,” but he ignored her pleas. Instead, Jackson got on top of CW and restrained her as she struggled. He then “pulled his pants half way down,” forced CW’s skirt up, and “inserted his penis in” her vagina.
CW testified that she remained “scared” throughout this encounter, and that she was crying and repeatedly telling Jackson to stop. However, Jackson ignored her pleas and “kept doing it.” Eventually, Jackson “pulled his penis out.” CW again told him to take her back to her car. Jackson complied, and apologized to CW on the ride back. He also cautioned CW not to tell their friends at work or his girlfriend about the incident. CW subsequently reported the incident, and Jackson was arrested.
On April 28, 1992, an O’ahu grand jury returned an indictment charging Jackson with sexual assault in the first degree in violation of HRS § 707-730(l)(a) (1993)4 (Count I) and sexual assault in the third degree in violation of HRS § 707-732(l)(e) (1993)5 (Count II). Jackson filed a motion [44]*44for supervised release and/or bail reduction on August 4, 1992. He subsequently withdrew the motion on August 31,1992.
On December 1, 1992, Jackson filed a motion to dismiss the charges against him, claiming that HRPP Rule 48(b) had been violated inasmuch as his trial had not commenced within one hundred eighty days of his arrest. Jackson argued that two hundred seventeen non-excludable days had elapsed between April 28, 1992, the date of the filing of charges against him, and December 1, 1992, the date on which he filed his HRPP Rule 48(b) motion. The circuit court denied the motion, concluding, inter alia, that the twenty-eight days that had elapsed while Jackson’s motion for supervised release and/or bail reduction was pending, as well as the fifteen days between the first pretrial status conference (rescheduled due to defense counsel’s failure to appear) and the second, were excludable. The circuit court held that, after excluding these periods, the allowable period had not been exceeded.
Trial commenced on December 2, 1992. Before the trial began, and outside of the jury’s presence, the circuit court informed both parties of its intention to provide the jury with a few preliminary instructions, including the definition of “strong compulsion.” The court explained that it wanted to give the jurors something to focus on during the course of the proceedings, and asked whether counsel had any objections. Although defense counsel James Miura had no' objection to the substance of the definition, he did note an objection on procedural grounds.
Prior to recross-examination of CW, the court warned Miura, “Limit yourself to recross ... we’re not going to do cross all over again.” During the recross, as Miura began to question CW about statements she had made to a private detective and to the police regarding the alleged sexual assaults, the following colloquy ensued:
THE COURT: How deeply are we getting into this since this is recross?
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THE COURT: I don’t recall that the [prosecution] raised that issue in its redirect.
MIURA: Well, I — this is also another prior statement, your Honor.
THE COURT: Yeah, but that’s what you should have done in your cross, this is redirect, this is the fourth shot, you don’t get to start doing new things in the fourth shot. You can only attack what the [prosecution] raised in its redirect and I don’t recall that [it] did raise that on redirect.
I don’t want to get into a third statement unless it directly deals with something raised by the [prosecution] in its redirect, not [its] direct.
MIURA: Well, your Honor, if — it can get redundant, I can see this point, your Honor, I won’t get into that point.
Miura then terminated his reeross-examination of CW.
Once the prosecution rested, Jackson made a motion for mistrial and a motion for judgment of acquittal, each of which the court heard and denied that day. Both motions were heard outside the presence of the jury.
After the defense presented its case, and the parties settled jury instructions, Jackson renewed his motion for judgment of acquittal and again, outside the presence of the jury, the court denied his motion. The jury thereafter deliberated for a day and a half before returning its verdict: as to Count I, Jackson was found guilty of the included offense of sexual assault in the second degree, and, as to Count II, he was found guilty of the included offense of sexual assault in the fourth degree. The court polled the jury, and all members indicated agreement with the verdict.
On December 21, 1992, Jackson filed a motion for a new trial, based on post-verdict revelations made by Patricia Pennywell, the jury foreperson. The motion alleged that because the “jury took into consideration the fact that Defendant was of African-American descent in coming to a guilty verdict,” Jackson “did not receive a fair and impartial trial on this matter.” According to Pennywell, two of the jurors made some comments that, arguably, revealed racial prejudice. One juror — an elderly Japanese female — expressed surprise that Jackson, whom she referred to as “colored,” had such a “pretty” and “non-[45]*45Black” wife. However, Pennywell added, “I really believed that was something that was probably said after the verdict was agreed to. And as such ... [i]t didn’t have any bearing on the deliberations itself.”
A second juror remarked, in the context of discussing the effects of alcohol, “That’s the way they are.” Pennywell inferred that “they” referred to men of African-American descent. Pennywell then “called the juror” on her comment by repeating it. The juror immediately denied that she had meant any racial overtone. A few other jurors “grumbled” or “raised eyebrows perhaps.”
Pennywell testified that aside from these comments, no other references to race were made, and that it “wasn’t possible to be racial with respect to the matter before the group.” In addition, Pennywell testified that she reminded the jurors “[t]hat it was important not to consider race as an issue in the deliberations.”
Pennywell also disclosed that on the morning of the day that the jury reached its verdict, she began to have memories of a sexual assault, of which she had not previously been consciously aware, that had been perpetrated on her by her stepfather when she was thirteen-years-old. Pennywell did not discuss her memories or feelings with the other jurors during deliberations. Nor did she vouch for the credibility of the complaining witness. When asked whether she was feeling any mental or emotional discomfort during jury deliberations because of the thoughts and memories of her own assault, Pennywell responded, “I was beginning to but they had not become clear until the morning we turned in a verdict.” Pennywell testified:
I figured I would be able to keep what happened to me separate from the issue before the court, and I was fully aware that it wasn’t necessary for all of us to come to an agreement in a jury. That it was possible for there to be no agreement, and I found myself caving in simply because I couldn’t tolerate being in the room with the ... situation and discussion.
At the conclusion of Pennywell’s testimony, the circuit court heard and considered the arguments of counsel on both sides. The court thereafter denied Jackson’s motion for new trial, stating in part:
[ujnder the circumstances and given the evidence that I have heard ... I ... found the evidence of guilt compelling and overwhelming; and I did not disagree with the verdict_ Nothing else in the day-and-a-half deliberation ... indicates to me that ethnicity or race had anything to do with it.... As to [Pennywell’s] experience with her stepfather ... I am satisfied that [she] knew what she was doing when she voted to convict.... I didn’t see anything improper in the deliberations.
On January 21,1993, Miura made a motion to withdraw as counsel and have substitute counsel appointed.6 The next day, at a preliminary hearing on the motion for new trial based on Pennywell’s disclosures, Jackson orally notified the court of his wish to replace Miura with private counsel on the ground that Miura had filed the motion for judgment of acquittal without Jackson’s permission.7 Jackson subsequently filed a pro se motion for new trial based on Miura’s filing of the motion for judgment of acquittal against Jackson’s wishes.
On July 15, 1993, the circuit court denied Jackson’s motion for new trial based on Mi-ura’s filing of the motion for judgment of acquittal. Final judgment and sentence were entered that day. Jackson thereafter timely appealed.
[46]*46II. DISCUSSION
A. Sufficiency of the Evidence
Jackson alleges that there was “insufficient evidence to establish beyond a reasonable doubt that the crime of Sexual Assault by illegal strong compulsion or threatening had actually been committed, as required by Hawaii law, even when the evidence is viewed in the light most favorable to the [prosecution].” (Emphasis added.)
Whether there was insufficient evidence to establish “strong compulsion” in the instant case is irrelevant, because “strong compulsion” is not an element of either offense for which Jackson was convicted. Although Jackson was charged with sexual assault in the first degree under HRS § 707-730(l)(a) and sexual assault in the third degree under HRS § 707-732(l)(e), both of which require proof that the defendant used “strong compulsion,” see supra notes 4 and 5, he was ultimately convicted of the included offenses of sexual assault in the second degree under HRS § 707 — 731(1)(a) and sexual assault in the fourth degree under HRS § 707 — 733(l)(a), respectively, neither of which require proof that the defendant used “strong compulsion,” but only require proof that the sexual penetration/contact was accomplished by “compulsion.” See supra notes 1 and 2. “Compulsion” may be proved by evidence of an “absence of consent,” HRS § 707-700 (1993), and the jury in the instant case was so instructed.
The question thus becomes whether there was sufficient evidence to establish the element of “compulsion.”8
We have long held that evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or a jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact. Indeed, even if it could be said in a bench trial that the conviction is against the weight of the evidence, as long as there is substantial evidence to support the requisite findings for conviction, the trial court will be affirmed.
“Substantial evidence” as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a [person] of reasonable caution to support a conclusion. And as trier of fact, the trial judge is free to make all reasonable and rational inferences under the facts in evidence, including circumstantial evidence.
State v. Pone, 78 Hawai'i 262, 265, 892 P.2d 455, 458 (1995) (quoting State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931, reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992)).
In the instant case, the record contains substantial evidence that, from the outset, CW rebuffed Jackson’s sexual advances. According to CW’s testimony, she repeatedly told him to stop, attempted to pull away, and told Jackson that she did not want to touch him. This evidence is sufficient to establish absence of consent and, accordingly, is sufficient to establish the element of “compulsion.”
Thus, based on our review of the record, considering the facts in the strongest light for the prosecution, we hold that substantial evidence was presented to support Jackson’s convictions of sexual assault in the second degree and sexual assault in the fourth degree. Therefore, Jackson’s argument in this regard is without merit.
B. Pre-trial instruction on “strong compulsion”
In a related point of error, Jackson contends that the circuit court erred in giving a preliminary instruction defining “strong compulsion.” Jackson, however, fails to present any argument whatsoever to support this claim. Because no support for this claim appears in the “Argument” section of Jackson’s opening brief, it is our prerogative to disregard it without reaching the issue pre[47]*47sented. State v. Lopez, 78 Hawai‘i 433, 452, 896 P.2d 889, 908 (1995) (citing Loui v. Board of Medical Examiners, 78 Hawaii 21, 29 n. 19, 889 P.2d 705, 713 n. 19 (1995)); see also State v. Reed, 77 Hawaii 72, 86, 881 P.2d 1218, 1232 (1994); cf. Berkness v. Hawaiian Electric Co., 51 Haw. 437, 438, 462 P.2d 196, 197 (1969).
Furthermore, because the jury did not convict Jackson of any offense involving “strong compulsion,” see supra section H.A., even assuming, arguendo, that the circuit court erred in giving the pre-trial instruction regarding the definition of “strong compulsion,” any such error was harmless beyond a reasonable doubt. -
C. Restriction of Recross-Examination
Jackson next maintains that the circuit court improperly restricted the scope of his recross-examination of CW. The scope and extent of cross and recross-examination of a witness is within the sound discretion of the trial judge. See, e.g., State v. Alfonso, 65 Haw. 95, 648 P.2d 696, 700 (1982); see also State v. Emmsley, 3 Haw.App. 459, 467, 652 P.2d 1148, 1154 (1982). Under this standard, we will not disturb the trial court’s exercise of its discretion unless it is clearly abused. An “abuse of discretion occurs if the trial court has ‘clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party-litigant.’ ” State v. Adams, 76 Hawai'i 408, 411, 879 P.2d 513, 516 (1994) (citing Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992)).
Hawaii Eules of Evidence (HRE) 611 provides, in pertinent part:
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect the witness from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited to the subject of the direct examination and matters affecting the credibility of the witness.
Pursuant to this rule: (1) “[r]edireet is properly limited to the development, correction and refutation of matters brought out for the first time on cross”; and (2) “[r]ecross should similarly be limited to items newly broached on redirect. Repetitive examinations are properly curtailed under the court’s general rule 611(a) control.” A. Bowman, Hawai‘i Rules of Evidence Manual 250 (1990).
Jackson alleges that “[t]he trial court improperly denied [him] his right to confront and impeach his accuser” by restricting the scope of his recross-examination of CW “concerning the incident the [prosecution] questioned her about on re-direct.” This argument is contradicted by the record before us, insofar as (1) the circuit court did not preclude recross-examination of issues that had been raised on re-direct at all, but rather sought to limit the scope of recross so as to exclude issues not raised on re-direct, and (2) defense counsel voluntarily ceased pursuing a line of questioning that was eoncededly “redundant.”
Even if the circuit court had expressly restricted the scope of defense counsel’s recross-examination in the manner described, such action would have fallen within the ambit of its discretion. However, a closer examination of the trial transcript reveals that this is not what occurred. After cautioning defense counsel to avoid questioning “unless it directly deals with something raised by the [prosecution] in its redirect, not [its] direct,” the circuit court allowed recross-examination to continue. At that point, defense counsel noted that his intended line of questioning would be “redundant,” and thereby ended his recross-examination of CW voluntarily.
Inasmuch as the circuit court did not abuse its discretion by cautioning defense counsel to keep the scope of his recross-examination within the proper bounds, and given that defense counsel voluntarily terminated the recross-examination because the intended line of questioning became redundant, Jackson’s rights were not violated. Cf. Emmsley, [48]*48supra (repetitive recross properly disallowed).
D. Jury Deliberations
Jackson’s final contention with respect to alleged errors occurring at trial9 is that he was deprived of a fair trial by twelve fair and impartial jurors and that the circuit court erred in denying his motion for new trial on that basis. The granting or denial of a motion for new trial rests within the discretion of the trial court and will therefore not be disturbed absent a clear abuse of discretion. State v. Furutani, 76 Hawaii 172, 178-79, 873 P.2d 51, 57-58 (1994). “The same principle is applied in the context of a motion for new trial premised on juror misconduct.” Id. at 179, 873 P.2d at 58.
Jackson’s argument in this regard is based on jury foreperson Pennywell’s post-verdict testimony that: (1) two jurors had expressed racist opinions; and (2) Pennywell had experienced an incident of sexual assault in her childhood that she did not recollect until the day on which the jury reached its verdict.
In Furutani, supra, we addressed the general principles and the conceptual framework governing claimed denials of the right to a fair trial by an impartial jury. We explained that “[t]he defendant bears the initial burden of making a prima facie showing of a deprivation that could substantially prejudice [his or her] right to a fair trial by an impartial jury.” 76 Hawaii at 181, 873 P.2d at 60. When a defendant makes such a claim,
the initial step for the trial court to take is to determine whether the nature of the alleged deprivation rises to the level of being substantially prejudicial. If it does not rise to such a level, the trial court is under no duty to interrogate the jury. And whether it does rise to the level of substantial prejudice is ordinarily a question committed to the trial court’s discretion.
Id. at 180, 873 P.2d at 59. When the alleged deprivation is based on statements made during deliberations, in order for the deprivation to rise to the level of being substantially prejudicial, a showing must be made “that improper juror comments during deliberations have been used as á circumstance against” the defendant. Id. at 185, 873 P.2d at 64. If such a prima facie showing is made by the defendant,
there is a presumption of prejudice and the verdict will be set aside unless it is clearly shown that the juror’s comments could not have affected the verdict. And consistent with our case law, the burden is on the prosecution to make such a clear showing beyond a reasonable doubt.
Id. at 185-86, 873 P.2d at 64-65.
1. Alleged racial bias amongst the jurors
We first consider Jackson’s allegation regarding “the expression and acting out of racial prejudice in the jury deliberations.” Upon review of the record, we are convinced that even assuming, arguendo, that both jurors’ comments reflected a tendency towards racial bias, the circuit court did not abuse its discretion in denying Jackson’s motion for new trial on that basis.
First of all, the comments regarding the race and appearance of Jackson’s wife were made after agreement on the verdict had been reached.10 These comments therefore could not have been “comments during deliberations [that were] used as a circumstance against” Jackson. See Furuta-ni, 76 Hawaii at 185, 873 P.2d at 64. Consequently, they could not have risen to the level [49]*49of being substantially prejudicial and could not have affected the verdict.
We are more troubled by the statement, “That’s the way they are,” which Pen-nywell understood to be a reference to African-American men. Nonetheless, the trial court could have reasonably concluded that the statement did not influence the other jurors because: (1) Pennywell challenged the juror as soon as the comment was made; (2) the juror immediately denied any racial meaning behind the statement; (3) other jurors reacted to the comment negatively; (4) Pennywell expressly cautioned the jury not to consider race as an issue in the deliberations; (5) no other statements reflecting racial bias were made during the course of the deliberations; and (6) the circuit court “found the evidence of guilt compelling and overwhelming.”
Based on the foregoing, we hold that the circuit court could have reasonably concluded that the jurors’ comments “could not have affected the verdict.” See Furutani, 76 Ha-wai'i at 185, 873 P.2d at 64. Accordingly, we hold that the circuit court did not abuse its discretion in denying Jackson’s motion for new trial on these grounds.
2. Pennywell’s recollection during deliberations of a childhood experience of sexual assault
We next examine the effect of Pen-nywell’s recollection of a childhood experience of sexual assault on Jackson’s right to a fair trial by an impartial jury. This type of situation often arises in the context of, and is framed as a question involving, juror nondisclosure of relevant information during voir dire.
Under some circumstance a juror’s nondisclosure of information during jury selection may be grounds for a new trial. Where, for example, a juror deliberately misrepresents important biographical information relevant to a challenge for cause or a peremptory challenge or knowingly conceals a bias or hostility towards the defendant, a new trial might well be necessary. In such instances, the juror’s deliberate misrepresentation or knowing concealment is itself evidence that the juror was likely incapable of rendering a fair and impartial verdict in the matter.
Furutani 76 Hawai'i at 182, 873 P.2d at 61 (quoting People v. Dunoyair, 660 P.2d 890, 895 (Colo.1983)). The instant case, however, cannot be properly characterized as one involving knowing concealment during voir dire. First, because the jury selection process was not transcribed, we have no record of the questions asked during voir dire. We know only, according to Pennywell’s testimony, that she was asked “about her experience” generally and “about being fair.” Second, it is uncontroverted that Pennywell was not consciously aware of her childhood experience at the time of voir dire and, therefore, would have been unable to disclose that information even if asked.
In determining whether Pennywell’s recollection itself, as opposed to the failure to disclose it during voir dire, deprived Jackson of a fair trial by an impartial jury, we return to the conceptual framework discussed above. In this context, in order to make a prima facie showing of a deprivation, Jackson would have to present evidence that Pen-nywell “consciously relied on her personal childhood experience as a sex[ual] assault victim and, based on that experience, communicated her assessment of the credibility of [CW’s] testimony to her fellow jurors.” Id. at 182 n. 13, 873 P.2d at 61 n. 13; see also State v. Larue, 68 Haw. 575, 577-78, 722 P.2d 1039, 1041-42 (1986).
Furthermore, as to the reasons that Pennywell ultimately “caved in” and voted for conviction — be it exhaustion, pressure from the other jurors, or stress due to the nature of her recollection — we may not make specific inquiries. HRE 606(b) provides:
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify concerning the effect of anything upon the juror’s or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may the juror’s affidavit or evidence of any statement by the juror [50]*50indicating an effect of this kind be received.
See also Larue, 68 Haw. at 578, 722 P.2d at 1042. Although “HRE 606(b) does not prohibit ‘inquiry into’ the deliberative processes of juries,” State v. Holbron, 80 Hawai‘i 27,46, 904 P.2d 912, 931 (1995), “under [HRE] 606(b), we cannot consider jurors’ testimony as to the effect of the [outside influence] upon them[; w]e can only consider whether such [outside influence was present], and whether, given [the outside influence], we can say that the defendant had a trial before an impartial jury.” Furutani, 76 Hawaii at 185, 873 P.2d at 64 (citation, footnote, original brackets and ellipses points omitted).
The record supports the circuit court’s findings that Pennywell did not communicate her recollection to the other jurors, nor did she rely upon it to vouch for CW’s credibility. In fact, Pennywell testified that she did not comment on CW’s credibility at all. Moreover, Pennywell’s experience did not manifest itself in a bias against Jackson during the course of the deliberations; indeed, she was the only juror “holding out for not guilty” throughout the deliberations. For these reasons, we hold that the circuit court did not abuse its discretion in refusing to grant a new trial based on Pennywell’s recollection during deliberations of her childhood experience of sexual assault.
E. HRPP Rule k8
In Jackson’s remaining point of error he does not challenge the fairness of his trial but argues that the circuit court erroneously denied his pre-trial motion to dismiss for violation of HRPP Rule 48(b).
HRPP Rule 48(b) mandates the dismissal of criminal charges if a trial on those charges does not commence within six months, construed as one hundred eighty days, from the time of the arrest or of filing of charges, whichever is sooner. State v. Hoey, 77 Hawaii 17, 28, 881 P.2d 504, 515 (1994). Pursuant to HRPP Rule 48(c), however, certain periods must be excluded from the computation of the six month period.
In the instant case, it is undisputed that two hundred seventeen days elapsed between the date of Jackson’s arrest and the commencement of his trial, exceeding by thirty-seven the one hundred eighty days permissible under HRPP Rule 48(b). The circuit court, however, concluded that (1) the twenty-eight day period from August 3, 1992, through August 31, 1992, during which Jackson’s motion for supervised release and/or bail reduction was pending and (2) the fifteen day period from October 9, 1992, through October 23, 1992, attributable to a rescheduled pretrial status conference, were excluda-ble time periods. Consequently, the circuit court concluded that the time limits set forth in HRPP Rule 48 had not been violated.
1. The circuit court erred in excluding the twenty-eight day period from the date on which Jackson filed his motion for supervised release through the date on which the motion was heard.
At the time of the hearing on Jackson’s HRPP Rule 48 motion to dismiss, the law in this jurisdiction was that periods resulting from the filing of a defendant’s motion for supervised release and/or bail reduction are excluded from calculations for HRPP Rule 48 purposes. See State v. Durry, 4 Haw.App. 222, 665 P.2d 165 (1983). The circuit court recognized the Durry holding in concluding that the twenty-eight day period attributable to Jackson’s motion for supervised release and/or bail reduction was excludable under HRPP Rule 48(c). Durry, 4 Haw.App. at 230 n. 5, 665 P.2d at 172 n. 5.
However, subsequent to the circuit court’s ruling on Jackson’s Rule 48 motion, we held that
a motion for supervised release and/or bail reduction does not address substantive issues that affect the timing of trial. The motion may be filed or heard at any time— before, during, or even after trial. Thus, excluding time periods attributable to the pendency of such motions for purposes of the HRPP 48 computation would not advance the underlying policies of prompt processing of cases and maximizing the efficiency of the criminal justice system. ...
Because motions for supervised release and/or bail reduction in no way delay the [51]*51commencement of criminal trials, we hold that time periods attributable to such motions are not excludable pursuant to HRPP 48(e).
Hoey, 77 Hawai'i at 30, 881 P.2d at 517 (citations omitted).
Were Hoey given retroactive application, the time period attributable to Jackson’s motion for supervised release and/or bail reduction would not be excludable pursuant to HRPP Rule 48(c). The issue, therefore, becomes whether Hoey is to be given retroactive application. See State v. Ikezawa, 75 Haw. 210, 219, 857 P.2d 593, 597 (1993) (holding that a decision overruling clear precedent under which six-month speedy trial period was not tolled between dismissal of original charge and filing of different charge even when charges were based on same episode would not be applied retroactively, particularly in light of defendant’s substantial reliance on overruled precedent).
“Although judicial decisions are assumed to apply retroactively, such application is not automatic.” Id. “Implicit in the factors to be considered in determining whether a judicial decision will be applied retroactively is the concept of fairness.” State v. Kekona, 77 Hawai'i 403, 410 n. 3, 886 P.2d 740, 748 n. 3 (1994) (Levinson, J., concurring and dissenting) (quoting Ikezawa, 75 Haw. at 220-21, 857 P.2d at 598) (brackets omitted). Because we applied the Hoey rule to vacate Hoey’s conviction, rather than limiting its application to future appeals, “persuasive federal authority would suggest that we would be obligated to apply the same rule to all other criminal proceedings currently pending in the court system.” Id. (citing Powell v. Nevada, 511 U.S. 79, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994)). This is true for two reasons:
First, the nature of judicial review precludes us from simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new [rules], and then permitting a stream of similar eases subsequently to flow by unaffected by that new rule. Second, selective application of new rules violates the principle of treating similarly situated defendants the same.
Id. (quoting Powell, 511 U.S. at —■—-, 114 S.Ct. at 1283) (citations, quotation marks, ellipsis points, brackets, and emphases omitted).
Jackson filed his notice of appeal on August 12,1993. We announced our decision in Hoey on September 22,1994. Thus, Jackson’s appeal was pending when the new rule — i.e., that time periods attributable to motions for supervised release are not ex-cludable for HRPP Rule 48(c) purposes — was announced. Because the present appeal could just as easily have been the case “fish[ed] from the stream of appellate review” to serve as the vehicle for the pronouncement of this rule, and because we chose to apply the new rule to Hoey himself, we are obligated to apply the rule retroactively to all similarly situated defendants whose appeals were pending at the time it was announced. Cf. Tachibana v. State, 79 Hawai'i 226, 238 n. 10, 900 P.2d 1293, 1305 n. 10 (1995) (noting that because new rule would be applied to neither Tachibana’s case nor “any other case in which trial [had] been completed, our refusal to apply the [new rule] retroactively [was] not inconsistent with the reasoning of Powell ”); Kekona, supra (prospective application of new principle would be justified by fact that neither Keko-na nor any other present criminal defendant would derive benefit of rule, thereby avoiding selective application prohibited by Powell).
We therefore hold that, although the circuit court “simply acted according to the rule as it was interpreted at the time,” Ikezawa, 75 Haw. at 223, 857 P.2d at 599, Powell requires retroactive application of Hoey. Accordingly, we further hold that the trial court erred in excluding from its HRPP Rule 48(b) calculation the twenty-eight day period that elapsed between the fifing of Jackson’s motion for supervised release and/or bail reduction and its disposition.
2. The circuit court did not err in excluding the fifteen days attributable to defense counsel’s failure to appear at a pretrial status conference.
Jackson next argues that the circuit court erred in excluding the fifteen days from October 9,1992, through October 23, 1992, from [52]*52its HRPP Rule 48 calculations. A pretrial status conference was originally scheduled for October 9, 1992. Defense counsel failed to appear. As a result, the conference was rescheduled until October 23, 1992. The prosecution characterizes this period as the equivalent of a “continuance,” for which it should not be penalized with respect to HRPP Rule 48 calculations. The circuit court, although not expressly terming this period the functional equivalent of an excludable period of delay resulting from a motion for a continuance, concluded that the fifteen days “are excluded certainly because of the no-show[.]”
We agree with the circuit court’s conclusion regarding this fifteen day period. As indicated above, the plain language of HRPP Rule 48 makes clear that the enumerated periods of excludable time set forth in subsection (c) apply only to events and circumstances that cause a “delay” in the commencement of trial. The rescheduling of a pretrial status conference, which is itself a precondition to the commencement of trial, by its very nature delays commencement of trial. Where such delay is attributable to the defense, the delay is excludable under HRPP Rule 48(c). We therefore hold that the circuit court properly excluded the time period from October 9, 1992, through October 23, 1992, from its HRPP Rule 48 calculations.
3. Because the circuit court erred in denying Jackson’s HRPP Rule j.8 motion to dismiss, we must vacate his convictions and remand for entry of an order dismissing the charges against him, with or without prejudice, in spite of the fact that doing so will likely subvert the goals sought to be achieved by HRPP Rule ⅛8.
Taking into account.the twenty-eight days that elapsed during the pendency of Jackson’s motion for supervised release and/or bail reduction, which the circuit court improperly excluded, a total of two hundred two non-exeludable days11 elapsed from the date of Jackson’s arrest to the commencement of his trial, a “clear violation of the one hundred eighty day limit mandated by HRPP 48(b).” Hoey, 77 Hawaii at 32, 881 P.2d at 519. Thus, the circuit court erred when it denied Jackson’s motion to dismiss.
In the past, when a trial court has improperly denied a defendant’s motion to dismiss for violation of HRPP Rule 48 and the defendant has been convicted in a subsequently held trial, the appellate court has, without extended analysis, vacated the defendant’s conviction and remanded the case for entry of an order of dismissal, with or without prejudice. See, e.g., Hoey, supra; State v. Wasson, 76 Hawai'i 415, 879 P.2d 520 (1994); Ikezawa, supra; State v. Kahawai, 9 Haw. App. 205, 831 P.2d 936, cert. denied, 73 Haw. 627, 834 P.2d 1315 (1992); State v. Ho, 7 Haw.App. 516, 782 P.2d 29 (1989); State v. Hanawahine, 69 Haw. 624, 755 P.2d 466 (1988); cf. State v. Dwyer, 78 Hawai'i 367, 893 P.2d 795 (1995) (remanding for application of Rule 48); State v. Lau, 78 Hawai'i 54, 890 P.2d 291 (1995) (remanding for application of Rule 48); State v. Hutch, 75 Haw. 307, 861 P.2d 11 (1993) (remanding case for “entry of appropriate [findings of fact]” regarding time periods that may have been excludable); State v. Caspino, 73 Haw. 256, 831 P.2d 1334 (1992) (remanding case to trial court for findings regarding excludability of certain time period, and directing, that if time period is found not to be excludable, to dismiss the charges); State v. English, 68 Haw. 46, 705 P.2d 12 (1985) (vacating judgment of conviction and remanding for entry [53]*53of order of dismissal with prejudice); State v. Gillis 63 Haw. 285, 626 P.2d 190 (1981) (reversing defendant’s conviction and dismissing charge with prejudice).
Although this approach to dealing with erroneous denials of HRPP Rule 48 motions to dismiss is understandable, we are troubled because vacating convictions on that basis will, in many cases, subvert the goals sought to be achieved by HRPP Rule 48.
The current version of HRPP Rule 48 “is derived from the ABA Standards of Criminal Justice,” State v. Balauro, 73 Haw. 70, 73, 828 P.2d 267, 269 (1992), in particular, Part II of the chapter setting forth standards relating to speedy trial.12 See II American Bar Association, Standards for Criminal Justice, §§ 12-2.1 through -2.3 (2d ed. 1980); American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, §§ 2.1-.3 (1967). Its purposes are “to ensure speedy trial for criminal defendants, ... to relieve congestion in the trial court, to promptly process all cases reaching the courts, and to advance the efficiency of the criminal justice process.” Hoey, 77 Hawai‘i at 29, 881 P.2d at 516 (citations and quotation marks omitted). See also State v. Coyaso, 73 Haw. 352, 356, 833 P.2d 66, 68 (1992).
One way in which these goals are achieved is through the threat of sanctions for violation of HRPP Rule 48. As explained in Kahawai, supra:
Rule 48(b)’s sanction of dismissal in criminal cases not tried within the prescribed time frame, unless excludable delay is shown, creates an incentive for trial courts to design and implement efficient and fair procedures to decrease the potential for delay caused by chronic congestion and for the legislature to supply the necessary resources to ensure prompt processing of all criminal cases. Additionally, Rule 48’s speedy trial requirement also gives the prosecutor an incentive to design screening procedures to ensure that as much as possible those cases that may be disposed of by means other than trial are removed from the criminal justice system as quickly as possible.
9 Haw.App. at 210-11, 831 P.2d at 939 (footnotes omitted). Thus, it is apparent that the threat of dismissal of charges, with or without prejudice, furthers the purposes of HRPP Rule 48.13
However, when eases have proceeded to trial and guilty verdicts have been returned, vacating appellants’ convictions would not, in many cases, further any of the purposes of HRPP Rule 48. On remand, it is [54]*54likely that the trial court will dismiss such eases without prejudice and that the prosecution will reinstitute the charges, thereby increasing, instead of relieving, congestion in our courts. The prompt processing of cases and the efficiency of our criminal justice process would clearly not be enhanced by vacating a trial court’s judgment, only to have the process that led to the judgment repeated. Indeed, such a remedy defeats the speedy disposition of charges against a defendant and disgraces the administration of justice by requiring the retrial of a case that was tried without error in the first instance.14
Furthermore, we note that if an appellant can demonstrate that his or her constitutional right to a speedy trial15 — the substantive right that HRPP Rule 48, through a procedural mechanism that is “separate and distinct” therefrom, see Lau, 78 Hawai'i at 60, 890 P.2d at 297 (quoting State v. Estencion, 63 Haw. 264, 268, 625 P.2d 1040, 1043 (1981)), seeks to protect— was violated, the appellant will be entitled to have his or her convictions vacated and the charges dismissed with prejudice. Wasson, 76 Hawai'i at 418, 879 P.2d at 523 (“The only remedy for the violation of an accused’s [constitutional] right to speedy trial is dismissal with prejudice.’’ (Quoting State v. Nihipali, 64 Haw. 65, 67 n. 4, 637 P.2d 407, 408 n. 4 (1981); emphasis in original.)). In the instant case, however, it is clear that Jackson’s constitutional right to a speedy trial was not violated: there was a relatively short time between indictment and trial (two hundred seventeen days), Jackson never made a demand for a speedy trial, and, most importantly, Jackson suffered no actual prejudice as a result of the delay in bringing him to trial. See id. at 419-23, 879 P.2d at 524-28.16
Despite our concerns, in light of the long line of cases that have consistently vacated convictions based on trial courts’ erroneous denials of appellants’ HRPP Rule 48 motions to dismiss and the fact that HRPP Rule 48 has not been amended as a result of those cases, cf. Ross v. Stouffer Hotel Co. (Hawai'i) Ltd., 76 Hawai'i 454, 458, 879 P.2d 1037, 1041 (1994) (declining to overrule prior decision based, in part, on legislature’s failure to amend statutes in light of the prior decision), we are constrained to vacate Jack[55]*55son’s conviction and remand for dismissal of the charges against him, with or without prejudice, in the circuit court’s discretion. Our concerns, however, prompt us to refer HRPP Rule 48 to the Permanent Committee on Rules of Penal Procedure and Circuit Court Criminal Rules to reassess the effectiveness of the present version of the rule and propose any amendments it deems necessary to prevent the reoccurrence of similar results in the future.17
III. CONCLUSION
For the foregoing reasons, we vacate Jackson’s convictions and remand for entry of an order dismissing the charges against him, with or without prejudice, in the discretion of the circuit court.
February 26, 1996.