State v. Kaeo. , 132 Haw. 451 ( 2014 )

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Electronically Filed
Supreme Court
SCWC-12-0000007
28-FEB-2014
07:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
PAUL C.K. KAEO, Petitioner/Defendant-Appellant.
SCWC-12-0000007
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000007; CR. NO. 09-1-0719)
FEBRUARY 28, 2014
NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.,
WITH RECKTENWALD, C.J., DISSENTING
OPINION OF THE COURT BY POLLACK, J.
This case raises the question of whether the trial
court erred in failing to instruct the jury upon the offense of
assault in the first degree as an included offense of the charge
of murder in the second degree.
The circuit court in this case declined to instruct the
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jury on the defense’s requested instruction on assault in the
first degree. The jury returned a verdict of manslaughter, and
the Intermediate Court of Appeals (ICA) affirmed the circuit
court’s judgment.
We conclude that assault in the first degree is an
included offense of murder in the second degree, and the circuit
erred by not instructing the jury upon the included offense of
assault in the first degree. Accordingly, we vacate the ICA’s
and circuit court’s judgments, and remand for a new trial.
I.
A.
1.
Paul Kaeo (Paul) was charged with murder in the second
degree pursuant to Hawai#i Revised Statutes (HRS) § 707-701.5
(1993). The following facts were adduced at trial.1
Paul met his future wife Debbie Baker Kaeo (Debbie) in
1989. They were married on June 6, 1998. Around the end of
2008, Debbie and Paul moved into the home of Debbie’s mother,
Lucille Baker (Lucille), where they lived together with Lucille
and Debbie’s brother, Calvin Baker (Calvin), until February 2009.
In February 2009, Paul learned that Debbie was seeing Charles
Kahumoku (Charles) and Debbie moved out. Debbie testified that
1
The Honorable Karen S. S. Ahn, presiding.
2
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she moved in with Charles. At that time, Debbie was working for
Roberts Hawai#i as a bus driver.
Despite their separation, Debbie and Paul continued to
communicate from February to May 2009, usually after Debbie and
Charles got into arguments. On direct examination, Debbie
testified that Paul would get upset during these conversations
and threaten to kill Charles. On cross-examination, however,
Debbie stated only that she “assum[ed]” Paul had once threatened
to kill Charles during these conversations and that she could not
remember mentioning Paul’s threats against Charles to anyone.
Debbie also testified that she could not remember Paul ever
asking where Charles lived.
Calvin also stated that Paul had said he would kill
Charles “if he found him.” On cross-examination Calvin stated
that he never told his sister about Paul’s threats. Calvin also
confirmed that it was possible Paul actually said “he don’t know
what might happen” if Paul ever saw Charles, and not that he
would kill Charles.
Paul denied ever telling Calvin that he would kill
Charles. Paul admitted saying to Calvin that Paul “never like
see [Charles] because I don’t know what might happen.” Paul
testified that he still loved Debbie and would take her back if
she wanted him back. Paul acknowledged that he did not like
Charles after he found out Charles was sleeping with Debbie.
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Paul testified that Debbie complained to him about
Charles’ drinking, mood swings, and his overprotectiveness of
her. Debbie and Paul testified that sometime around the end of
March or beginning of April 2009, Debbie called Paul “for advice”
because Charlie had threatened to shoot her. Paul testified that
it sounded as if “[Debbie] was in the room, and [Charles] was
locked out, and I could hear him, like, pounding on the door and
saying that he going kill her if she leave him.” Paul stated
that Debbie asked him at that time to pick her up, but he was at
the beach with Calvin, had no car, and Calvin would not lend him
his car.
Paul testified that after Debbie called him, he left a
message on Charles’ phone asking “why [Charles] hitting on
[Debbie][?]” Charles called Paul back, and Paul told him “he
gotta stop, stop hitting her or for sure she’s gonna leave him.”
Paul told Charles he could hear him threaten to kill Debbie. At
that point, according to Paul, Charles started yelling and
swearing at him and Charles said “you know what, I see you on the
street, I’ll shoot you too.” Paul testified that he then hung up
the phone because he was scared.
Paul testified that another incident of Charles abusing
Debbie occurred a few weeks later in the middle of April. Debbie
admitted that this incident occurred at a bar near the airport
where Debbie and Charles were having drinks with friends. Debbie
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testified that she did not understand why Charles became angry
during this incident. However, Paul testified that Debbie said
to him that “she started talking to this guy at the bar and
[Charles] got jealous.” Debbie testified that after Charles got
upset she went to the women’s bathroom. Charles followed her
into the bathroom and then hit her in the back. Another person
in the bathroom came out of a stall and told Charles to stop and
get out. Debbie testified that she got scared and called Paul.
Paul testified that he was at work on a night shift
that lasted from 10 p.m. to 6 a.m. when Debbie called and told
him what had occurred. Paul told her to come over to his
workplace. Debbie testified that she ran over to Paul’s
workplace, which was near the bar, because she did not want to
get hit again and was afraid she would.
Paul testified that when Debbie arrived, he had to open
a gate at his workplace to let her in. At that point, Debbie and
Paul saw Charles driving by Paul’s workplace in a truck. Paul
testified that Debbie stayed at his workplace for a couple hours
while he worked and then she left. Paul testified that when
Debbie left, she went back to the bar to meet Charles.
Paul testified further that he saw Debbie again the
next day at Lucille’s house. According to Paul, Debbie said “she
hate when Charlie do this kind of stuff when – because he always
do ‘em when he drunk.” Paul testified that Debbie then pulled
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down the collar of her turtleneck and showed him “a bruise like
someone choked her.” The bruise was not present when Paul saw
her the night before. Paul told Debbie “you gotta do something
about it because my hands are tied if you no like be with me[.]”
Debbie denied that she went to her mother’s house at this time or
that these events occurred.
Despite these incidents, Debbie testified that while
her relationship with Charles was not perfect, she was happy with
him. She also stated that it was not “a hard choice choosing
between Paul and Charles[.]” Debbie testified also that Paul
never attempted to reconcile his relationship with her or tried
to persuade her to get back into a relationship with him.
2.
Paul, Calvin, and Debbie all testified that on May 8,
2009, Paul and Calvin were at Lucille’s house preparing for a
family party or baby shower that was scheduled to take place the
next day. Lucille was in California at this time. Paul
testified that at approximately 9 a.m., Debbie called him and
offered to come to the house and help with the cooking. Paul
testified that he told Debbie to stay at home.
Debbie testified that on that day Charles picked her up
after work and dropped her off at Lucille’s around 4:30 p.m.
Calvin testified that Paul was in the house and did not speak to
Charles at this time. Paul testified that because he was almost
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done with the cooking he, Debbie, and Calvin just “[hung] out”
outside the house in the garage/driveway. Calvin testified they
drank beer. Debbie confirmed that they spent the evening
drinking beer and “talking stories” outside of the house in the
garage/driveway.
Paul and Calvin testified that during the evening
Debbie’s relationship with Charles was discussed. Paul testified
that Debbie said she was scared of Charles and “don’t like when
he’s always mad at her.” Paul and Calvin testified that they
attempted to convince Debbie to stay over at the house for the
night. Debbie said she would not mind, but she did not have a
work uniform for the next day. Paul informed her she had an
extra work uniform inside.
Debbie testified that Paul and Calvin brought up the
issue of her relationship with Charles. Debbie testified that
Paul and Calvin tried to convince her to stay over but that she
“just wanted to go home.” Debbie testified that Paul said she
looked “scared” and that Paul knew “he threatening you,” to which
Debbie replied, “what you talking about? I no understand.”
At this point, Paul and Calvin testified that they
thought Debbie was going to stay over. Paul wanted Debbie to
stay over because he “cannot see her getting beat – beaten every
time.” Calvin also testified that he spoke on the phone with
Charles and told him that Debbie was going to stay over. Calvin
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testified that Debbie did not want to go home or go with Charles.
Debbie and Paul testified that at some point in the
evening, Debbie left the house to get pupus but forgot her
cellular phone at the house. Paul testified that while Debbie
was gone, Charles called her phone. Paul answered the phone and
said “lose the number” and then hung up. Charles called back a
few minutes later and Paul answered again. This time Paul
explained that Debbie was going to stay over for the night and
Calvin would drive her to work and pick her up. Paul testified
that at this point Charles “started swearing and stuff like that
and he told me that don’t interfere with my life, I going kill
you.” That made Paul scared for himself and Debbie. Paul
testified that he was scared for Debbie because “if she do go
home, who knows what he might do. I don’t know what he’s capable
of.”
Debbie testified that when she returned she noticed
that she had a missed call. Paul told Debbie that Charles had
called. Debbie did not think it was a “big deal.” Debbie then
went into the house. Debbie called Charles and asked him to pick
her up. Debbie wanted to go home at about 9:30 p.m. because she
had work the next day.
Paul testified that at about 9:00 p.m. or 9:30 p.m.
Charles arrived at Lucille’s house in his truck. Paul testified
that he did not know Charles was coming. Calvin also testified
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that he did not know Charles was coming and was surprised when he
showed up.
Paul testified that Debbie stood up to leave and he
pushed her back down. Debbie testified that she stood up, hugged
both Calvin and Paul goodbye, “was ready to walk out the gate,”
and then was “flown back” onto the grass behind the garage by
Paul. Calvin testified that Debbie never stood up. Paul
testified that he said to Debbie “you’re not going home with this
guy tonight.” According to Debbie, Paul said “‘You ain’t’ – ‘you
ain’t fucking leaving.’”
Paul testified that the reason he pushed Debbie down
was because something might happen to her. Paul testified
further that, as a result of the conversation he had with Charles
about Debbie staying over and Charles threatening to kill Paul,
Charles might be mad and drunk enough to kill Debbie and thus he
“feared for her life.”
Paul testified that he next walked into the street
toward Charles’ truck. Paul told Charles “[Debbie] going stay
over I told you, you know, just go home and pick her up at work.”
Paul testified that Charles started “yelling and stuff like
that,” but Paul could not hear him because Charles was in the
truck. Paul grabbed a “pipe,”2 which Calvin described as the
2
Debbie at first described it as a “pipe or something.” Debbie
identified State’s Exhibit 1 as the object in Paul’s hand that evening.
(continued...)
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rebar they used to keep the gate closed so as to keep the dogs in
the yard and “started smashing on [Charles’] car.” Paul smashed
the windshield first, then the passenger side window. Debbie
testified that she attempted to grab the bar out of Paul’s hand
but Paul shoved her down again. Paul testified that he pushed
Debbie down and told her to stay away. He also testified that he
was not jealous and the attack was “like trying to keep her safe,
protect – protecting her.” Paul testified that he “never like .
. . something happen to her” “[b]ecause [Charles] was hurting
Debbie.”
Calvin testified that he could not understand anything
Paul was saying. Debbie testified that while Paul was smashing
Charles’ car, Paul said “he going kill him” “many times.” Debbie
noticed that Charles looked scared and was not attempting to get
out of the car. After hitting Charles’ car a number of times,
Paul testified that he “went onto the driver’s side and started
jabbing [Charles].” Debbie testified that as Paul walked around
the truck to the driver’s side, Paul said “I going kill him.”
Debbie testified that during this time she was “screaming and
yelling” “stop, just stop.” Debbie testified that she called the
2
(...continued)
Debbie described it as a peg made out of metal used for holding up tents while
camping. An evidence specialist (Specialist) with the Honolulu Police
Department’s Scientific Investigation Section recovered a two-foot metal bar
that was depicted in State’s Exhibits 19 and 29. Calvin identified the bar in
State’s Exhibit 19 as the one from Paul’s hand.
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police three times while she was trying to stop Paul from hurting
Charles.
On cross-examination, Debbie acknowledged that she did
not mention Paul saying he would kill Charles while Paul was
hitting Charles’ car in her written statement or in her half-hour
interview with the detectives, and she did not remember telling
this to the grand jury. Debbie testified that she told the
prosecuting attorney in the case about what Paul said on at least
one occasion.3
Paul testified that he jabbed Charles through the open
driver side window. Paul stated that he never opened the door
while he was jabbing Charles with the bar. Calvin testified that
he saw Paul “poking” Charles with the bar while Charles was
inside the truck.4 Paul testified that at this point he was only
trying to hurt Charles and not kill him:
[DEFENSE COUNSEL]: Okay. When you were jabbing into there,
what were you trying to do, Paul?
[PAUL]: I was trying to hurt him.
[DEFENSE COUNSEL]: Okay. But, I mean, why?
[PAUL]: Because he was hurting Debbie.
[DEFENSE COUNSEL]: Okay. You said earlier you pushed down
Debbie because you were afraid for her?
[PAUL]: Yes, I was afraid for her.
3
After Debbie’s testimony concluded, Defense Counsel stated on the
record, out of the presence of the jury, that at no time did the prosecutor’s
office disclose that Debbie had said that Paul said “I going kill him,”
referring to Charles. The Prosecutor related that he could not remember and
did not know of these statements by Paul prior to that day in court.
4
Debbie testified that she again tried to get the bar out of Paul’s
hand again and Paul pushed her down a third time. Paul testified that Debbie
was not around. Debbie testified that she did not know where Calvin was at
this point.
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[DEFENSE COUNSEL]: Okay. When you're jabbing the bar into
the truck, you still afraid for her?
[PAUL]: Yes.
[DEFENSE COUNSEL]: Okay. Were you trying to kill him?
[PAUL]: No.
[DEFENSE COUNSEL]: You weren't trying to kill him?
[PAUL]: No.
[Defense Counsel]: Okay. What were you trying to do, Paul, I
mean, what --
[PAUL]: I was just trying to stop him from, you know, taking
her and, who knows, beating her, stuff like that.
[DEFENSE COUNSEL]: Did you, I guess, at any time think about
the kind of injuries that you wanted to inflict?
[PAUL]: At that time I wasn't thinking. My mind was just --
[DEFENSE COUNSEL]: Okay. But you know you weren't trying to
kill him?
[PAUL]: Yes.
[DEFENSE COUNSEL]: You were trying to hurt him though?
[PAUL]: Yes.
[DEFENSE COUNSEL]: Okay. But you don't remember how much?
[PAUL]: No.
Paul admitted he knew hitting someone in the head with
the bar he hit Charles with could be dangerous, but he denied
aiming for Charles’ head, stating that he “just swung wild” and
“was just jabbing wild[.]” Paul also admitted hitting Charles
“out of anger[.]”
Paul testified that he stopped hitting Charles when he
saw Charles “go down.” Paul could not hear Charles breathing or
any “gurgling sounds.” Paul also testified that he “couldn’t see
blood.” Paul and Calvin testified that at this point Calvin came
up behind Paul and “told ‘em enough already.”5 Both testified
5
A neighbor (Neighbor), who was twenty yards away across the
street, testified that he went outside when he heard commotion in the street.
He saw Charles’ truck drive up, saw the door open, and saw someone go into
Charles’ truck from the driver’s side and that “most of their body was into
the truck maybe with their leg still out hanging on the street.” Neighbor
testified that it seemed like a fight was happening in the truck and there was
a pounding sound. Neighbor also heard what sounded like a woman trying to
(continued...)
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that Calvin took the bar from Paul. Calvin testified that he
threw the bar over the car.
Paul testified that he said to Calvin that he should
take Charles to the hospital because he knew he “beat him real
bad.” Paul said “I need to do something to help this guy, what I
did.” Paul then tried to push Charlie over so he could “get in
and go.” Paul testified that at this point Debbie came up and
took the keys out of the ignition of the truck. Paul admitted
that he never actually told Debbie he was planning to take
Charles to the hospital.
Debbie testified that when Paul opened the driver’s
side door, Charles was slouched over the steering wheel. She
testified further that Paul then said “Fuck you. Get away. I
going take him. I going take him.” Debbie testified that Paul
was trying to start the truck. Debbie took the keys out of the
truck to prevent Paul from taking Charlie because Debbie was
worried about Charlie. Paul and Debbie testified that Paul ran
away after Debbie took the keys. Debbie testified that Charles
had a pulse and was breathing at this time. According to Debbie
5
(...continued)
break up the fight. Neighbor testified that he went back inside five minutes
later, “maybe ten at the most.” Neighbor stated that he heard no breaking
glass and did not see anyone strike the truck. Neighbor said it was very dark
and they went back inside because they did not want to intrude on a family
issue.
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no emergency personnel showed up for ten more minutes. Paul
denied knowing Charles was dead on the night of the incident.6
Jeffery Jacobson (Jacobson), who responded to the
incident, testified that he arrived on the scene in an ambulance
at about 9:50 p.m. Jacobson testified that the passenger window
“looked shattered” and the windshield of Charles’ truck was
damaged. He then noticed that Charles’ “feet were above the
steering wheel . . . and he was lying at an angle down where his
head was in the passenger seat[.]” Jacobson checked Charles’
pulse but “no pulse was indicated.” Charles also was
unresponsive and not breathing. He attempted to revive Charles
with CPR and adrenalin, but Charles did not return to spontaneous
respirations or spontaneous pulse. Jacobson took Charles to
Waianae Coast Comprehensive Health Center, the nearest
appropriate facility. Dr. Gayle Suzuki (Dr. Suzuki),7 a medical
examiner, testified that Charles was pronounced dead on May 8,
2009.
Dr. Suzuki testified that on May 10, 2009, she
conducted an autopsy of Charles. She identified numerous
external wounds to Charles’ head, such as bruises and scrapes on
the middle part of his forehead, a scrape over his right eyebrow
6
Paul acknowledged that he was the person who killed Charles.
7
Dr. Suzuki was offered as an expert “in the field of anatomical,
clinical and forensic pathology, qualified to give opinions on things like
manner of death, mechanism of injury, etcetera.”
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and a bruise by his right eye. Charles also had a broken nose
and circular cuts on his nose and below his left jaw. Dr. Suzuki
testified that the external head wounds alone were not fatal.
On his torso, Charles had a “semicircular scrape” to
the left side of his chest, scrapes and bruises on his back
shoulder blades, along the back of his forearm and a “seven inch
. . . bruise on the left side of his torso[.]” Charles had no
external injuries from the waist down. Dr. Suzuki testified that
Charles’ wounds were consistent with Charles being attacked from
the left side. She described many of the arm wounds as defensive
type injuries.
Dr. Suzuki also determined that there were internal
injuries to Charles’ head. She described these injuries as
“rotational type injuries” resulting in a “shearing and
stretching of the brain cells itself.” Dr. Suzuki testified that
these rotational type injuries could result in a range of
injuries, from concussions to death. In this case, the shearing
resulted in bleeding around blood vessels on the brain, which
indicated an injury to the brain. Dr. Suzuki testified that
these injuries were caused by blunt force trauma, which was the
cause of Charles’ death. She testified that there was no skull
fracture, but external injuries would not necessarily occur even
where a person died from blunt force trauma to the head.
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Dr. Suzuki testified that Charles had a blood alcohol
concentration (BAC) of .221. She stated that Charles’ head
injury alone was sufficient to cause his death and that even
without the alcohol in his system, Charles would have died.
[Id.]
On cross-examination, Dr. Suzuki discussed alcohol
concussion syndrome (ACS). She described ACS as a “mechanism”
that caused persons with BACs from .22 to .33 to suddenly stop
breathing and die after suffering an otherwise non-fatal blow to
the head. She stated, however, that the prior cases of ACS,
unlike the instant case, did not involve physical damage to the
brain itself. Dr. Suzuki testified that she could not rule out
alcohol as a factor contributing to Charles’ death, but she still
believed “to a reasonable medical degree” of certainty that even
without the alcohol, Charles would have died. However, she
conceded that she was not “a hundred percent absolute[ly]”
certain that a person with Charles’ injuries and no alcohol in
their system would also have died.
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B.
Prior to trial, Paul submitted Defendant’s Requested
Jury Instructions numbers 5 and 6 on assault in the first degree8
and assault in the second degree.9
Before testimony began, the parties and the court
discussed jury instructions. The court “reserved” the issue of
8
Defendant’s Jury Instruction No. 5 reads as follows:
If and only if you find Paul Kaeo not guilty of
Manslaughter, or you are unable to reach a unanimous verdict
as to this offense, then you must consider whether the
defendant is guilty or not guilty of the included offense of
Assault in the First Degree.
A person commits the offense of Assault in the First
Degree if he intentionally or knowingly causes serious
bodily injury to another person.
There are two material elements to the offense of
Assault in the First Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These two elements are:
1. That, on or about May 8, 2009, in the City and
county of Honolulu, State of Hawai#i, the Defendant caused
serious bodily injury to another person; and
2. That the Defendant did so intentionally or
knowingly.
9
Defendant’s Jury Instruction No. 6 read as follows:
If and only if you find Paul Kaeo not guilty of
Assault in the First Degree, or you are unable to reach a
unanimous verdict as to this offense, then you must consider
whether the defendant is guilty or not guilty of the
included offense of Assault in the Second Degree.
A person commits the offense of Assault in the Second
Degree if he intentionally or knowingly causes substantial
bodily injury to another person.
There are two material elements to the offense of
Assault in the Second Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These two elements are:
1. That, on or about May 8, 2009, in the City and
county of Honolulu, State of Hawai#i, the Defendant caused
substantial bodily injury to another person; and
2. That the Defendant did so intentionally or
knowingly.
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whether to give Defendant’s Requested Jury Instructions numbers 5
and 6. Later that day the court informed the parties that the
court would not be submitting to the jury the assault in the
first degree instructions, which the court initially had included
in its own instructions. The defense objected, noting that Paul
had requested both assault in the first degree and assault in the
second degree. The defense argued that under HRS § 701-109(4)(a)
or (c), but especially (c), the court should give instructions
for both assault in the first degree and assault in the second
degree. The defense contended that this case “exactly” fits the
description of an “included” offense in HRS § 701-109(4)(c),
which the defense described as one that “differs from the offense
charged only in the respect that a less serious injury or
different state of mind suffices to establish its commission.”
The prosecution argued that assault in the first degree
not be given. The prosecution contended that assault in the
first degree would “have to go through a manslaughter verdict or
analysis,” which requires a reckless state of mind and assault in
the first degree has an intentional or knowing state of mind.
The court based its decision not to give the assault
instruction on State v. Robinson, 82 Hawai#i 304, 922 P.2d 358(1996) and State v. Alston, 75 Haw. 517, 865 P.2d 157, (1994).
The court characterized the holding in Robinson as “you don’t get
an assault third lesser off an assault one unless there is a
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rational basis to find that the injury did not constitute serious
bodily injury but actually in fact constituted bodily injury.”
The court read Alston to hold that HRS § 701-109(4)(c) “generally
require[s] the same end result.” The court concluded that when
Alston and Robinson are “combined” they “seem to suggest” that
“when it comes to murder and a dead person . . . you cannot get
to a different injury, which is pure injury, serious bodily
injury, substantial bodily injury.” The court accordingly based
its decision not to include the proposed assault instructions
solely on its interpretation of the law and not based on the
facts presented at trial.
Thus, the court gave instructions to the jury on murder
in the second degree, reckless manslaughter, and extreme mental
or emotional disturbance manslaughter. During closing arguments
the defense argued that if the jury believed Paul only assaulted
Charles and did not intend to kill him, the jury should find Paul
not guilty because they had not been instructed on assault. The
Court interrupted the defense to say that assault was not a
consideration:
[DEFENSE COUNSEL]: Now, if you say, no, it wasn't a jealous
rage, you gotta -- the other path you gotta look at, and
this is actually probably where you're supposed to start,
okay, is same thing. Okay? Was it murder? If it wasn't
murder, was it manslaughter? Okay.
Now, generally speaking, you guys know where this line
goes, right? There's -- I mean, you know, there's assaults
but you have no instructions for assaults so you cannot
consider any kind of assault. Okay? So even if you say to
yourselves, and this is just an assault, I mean, I don't
think he intended to kill him or anything like that, I don't
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think he acted recklessly, that's an assault. But you don't
have an instruction, okay? So that would mean you're here,
okay? You're not guilty. Now if anywhere along this line
you stop, you say, okay –
THE COURT: Assault is not to be – assault is not a
consideration.
[DEFENSE COUNSEL]: That's right. That's what I said. Okay.
So if you stop anywhere along this line, you say murder or
manslaughter, then you gotta consider the defenses that were
raised. Okay?
(Emphasis added).
On August 8, 2011, the jury convicted Paul of reckless
manslaughter. On December 5, 2011, the court sentenced Paul to
twenty years imprisonment with a mandatory minimum of six years
and eight months. Paul appealed to the ICA.
C.
Paul raised a single relevant10 point of error on
appeal to the ICA: the lower court erred in refusing to submit
defendant’s requested jury instructions regarding the included
offense of assault in the first degree.
Paul argued that the jury should have been instructed
on assault in the first degree pursuant to HRS § 701-109(4)(c)
10
As part of his first point of error raised to the ICA, Paul also
contended that the lower court erred in refusing to submit defendant’s
requested jury instructions on assault in the second degree. In light of our
determination that the jury should have been given an instruction on assault
in the first degree as a lesser included of murder in the second degree, it is
unnecessary to discuss this argument.
Paul raised two additional points of error to the ICA. First,
“The lower court abused its discretion by refusing to allow evidence of the
familial relationship between the decedent and the State’s primary witness.”
This point is not raised in the Application. Second, the circuit court
violated his “constitutional right to present a complete defense by precluding
[his] attorney from arguing this was an assault case.” In light of our
disposition of Paul’s primary argument in the Application, it is unnecessary
to discuss this issue.
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because “assault ‘differs from [murder] only in the respect that
a less serious injury or risk of injury to the same person . . .
suffices to establish its commission.’” (Emphasis added). Paul
contended that the commentaries to the Model Penal Code (MPC)
supported this argument as the MPC commentaries specifically
state that “Paragraph (c) allows conviction of an offense
consisting of an intentional infliction of bodily harm where the
charge is intentional homicide[.]” Thus, “[t]he fact that the
defendant’s conduct caused an injury which resulted in death does
not preclude Assault as an included offense.”
Paul further argued that the court erred in its
interpretation of Alston’s “end result” analysis because “death
is a form of injury,” and thus assault and Murder could have the
same “end result.” Paul reasoned that “the issue of the included
offenses turns on whether the evidence supports a rational
conclusion that the defendant did not intentionally or knowingly
cause a death, but instead, acted with the state of mind to
commit assault.” Paul maintained that “[u]nder the principles of
criminal law, an individual cannot be adjudged guilty without
proof that he acted with the requisite criminal mens rea to cause
the prohibited harm or injury,” and “[t]he penal law does not, in
most instances, condemn a person’s conduct alone.” Paul stated
that there was “a rational basis for concluding that he did not
contemplate killing [Charles], and thus he is entitled to the
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requested instructions on Assault.” Paul maintained that HRS §
701-109(4) does not indicate in any way that the “end result, in
this case death, controls the included instructions that are
given.”
Paul distinguished Robinson, which involved a dispute
over whether the defendant caused the injuries and not a dispute
as to the defendant’s state of mind. In this case, by contrast,
the central question is whether the evidence supports a finding
that Paul only intended to assault Charles and not kill him.
The prosecution responded that the trial court need not
instruct the jury on a lesser included offense “unless there is a
rational basis in the evidence for a verdict acquitting the
defendant of the offense charged and convicting him of the
included offense.” The prosecution argued that Paul admitted
trying to hurt Charles because Charles was hurting Debbie and
Paul admitted causing the injuries to Charles and to killing
Charles. Paul admitted that “At that time I wasn’t thinking. My
mind was just --.” Paul knew “hitting somebody in the head with
the bar can be dangerous and deadly.” Finally, Paul admitted
that “he ‘just swung wild,’” at any part of Charles’ body and
“beat [Charles] real bad” because Paul was angry. The
prosecution concluded that based on this evidence “there was no
rational basis to support the contention that the jury could have
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rationally acquitted Defendant of Reckless Manslaughter and
convicted him of [Assault in the First Degree].”
The ICA issued a Summary Disposition Order (SDO)
affirming the circuit court judgment (judgment) relying on the
holding in State v. Haanio, 94 Hawai#i 405, 16 P.3d 246 (2001),
that “when the jury convicts the defendant of the charged offense
or a greater included offense, a trial court’s failure to
instruct on a lesser included offense is a harmless error.”11
II.
In his Application for Writ of Certiorari, Paul raises
a single12 point of error:
The ICA gravely erred in holding that the circuit court’s
failure to instruct the jury on the lesser-included assault
offenses was a harmless error.
A.
The ICA affirmed the circuit court judgment solely on
the grounds that, pursuant to Haanio, the court’s failure to
instruct on assault in the first degree was harmless because the
jury convicted Paul of manslaughter. After the ICA issued its
11
The ICA also found that the court’s interruption of the defense’s
closing arguments concerning assault did not disturb or dispute Paul’s theory
that the jury “must acquit if they believe [Paul] did not act with the
requisite intent for murder or manslaughter, and did not violate [Paul’s]
right to present a complete defense.
12
Paul also raises as a sub-point that his federal and Hawai#i
constitutional rights to present a defense and to effective assistance of
counsel were violated by the court’s foreclosing his counsel from arguing to
the jury the lesser included offenses of assault in the first degree and
assault in the second degree.
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SDO, this court held that “Haanio is overruled to the extent that
it holds the trial court’s error in failing to give included
offense instructions is harmless if the defendant was convicted
of the charged offense or of a greater included offense.” State
v. Flores, 131 Hawai#i 43, __, 314 P.3d 120, 134 (2013).
In Flores, the issue was whether the trial court should
have instructed the jury on unlawful imprisonment in the first
degree when the defendant was charged with and convicted of the
crime of kidnapping. Flores, 131 Hawai#i at __, 314 P.3d at 121,
128. After establishing that unlawful imprisonment in the first
degree was a lesser included offense of kidnapping and that the
evidence in the case presented a rational basis for the jury to
acquit Flores on kidnapping and convict him of unlawful
imprisonment in the first degree, the Flores court held that the
trial court’s failure to instruct on unlawful imprisonment was
not harmless simply because the defendant was convicted of the
greater offense. Flores, 131 Hawai#i at __, 314 P.3d at 121-135.
Instead, the court held that there was a rational basis for the
jury to find Flores guilty of unlawful imprisonment in the first
degree, had the jury been given the appropriate instruction. Id.
at, 314 P.3d at 135. Thus, “[t]he failure to instruct the jury
on a lesser included offense for which the evidence provides a
rational basis warrants vacation of the defendant’s conviction.”
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Id.
In this case, Paul was charged with murder in the
second degree and convicted of the lesser included offense of
reckless manslaughter. Pursuant to Flores, if assault in the
first degree is a lesser included offense of murder in the second
degree, and there was a rational basis in the evidence for
acquitting Paul of murder in the second degree and convicting him
of the included offense of assault in the first degree, then the
court’s failure to instruct on the included offense is subject to
a harmless beyond a reasonable doubt standard.
B.
“[A]n offense is a lesser included offense of another
if it satisfies the requirements set forth in HRS § 701-109(4)
which codifies the common law doctrine of lesser included
offenses.” State v. Alston, 75 Haw. 517, 532-33, 865 P.2d 157,
166 (1994) (quotations, citations, and brackets omitted). HRS §
701-109(4) provides in relevant part:
A defendant may be convicted of an offense included in an
offense charged in the indictment or the information. An
offense is so included when:
. . . .
(c)It differs from the offense charged only in the respect
that a less serious injury or risk of injury to the same
person, property, or public interest or a different state of
mind indicating lesser degree of culpability suffices to
establish its commission.
HRS § 701-109(4) (1993). Each subsection of the statute
“requires alternative analyses.” Alston, 75 Haw. at 533, 865 P.d
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at 166 (citing State v. Burdett, 70 Haw. 85, 87, 762 P.2d 164,
166 (1988)). In particular, subsection (c) “expands the
doctrine of lesser included offenses to include crimes that
require a . . . less serious injury or risk of injury.” Burdett,
70 Haw. at 90, 762 P.2d at 167.
“The degree of culpability, degree of injury or risk of
injury and the end result are some of the factors considered in
determining whether an offense is included in another under HRS §
701-109(4)(c).” State v. Kupau (Kupau I), 63 Haw. 1, 7, 620 P.2d
250, 254 (1980). In this case, the degree of culpability, the
end result, the degree of injury or risk of injury and the
legislative history all strongly indicate that assault in the
first degree is a lesser included offense of murder in the second
degree.
1.
First, “[r]egarding the degree of culpability, the rule
is that the lesser included offense cannot have a mental state
greater than or different from that which is required for the
charged offense.” Alston, 75 Haw. at 534, 865 P.2d at 166. For
example, in Kupau I, the court held that “harassment has a
greater mental state than assault in the third degree” because
“[h]arassment requires a state of mind that has the intent to
harass, annoy or alarm, while assault requires a mental state
that is intentional, knowing or reckless.” 63 Haw. at 6, 620
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P.2d at 254. Likewise, harassment “has a more culpable mental
state than terroristic threatening in the first degree” because
the latter “requires a mental state that is intentional or
reckless.” Burdett, 70 Hawai#i at 88, 762 P.2d at 166-167.
In both Kupau I and Burdett, the court noted that the
Commentary on HRS § 702-208 states that intent, knowledge,
recklessness, and negligence are in descending order of
culpability. Kupau I, 63 Haw. at 6 n.5, 620 P.2d at 253 n.5;
Burdett, 70 Hawai#i at 88-89, 752 P.2d at 167. Thus, the degree
of culpability test refers to the state of mind—intentionally,
knowingly, recklessly, or negligently—required to establish an
element of an offense pursuant to HRS § 702-204.
In this case, murder in the second degree and assault
in the first degree both require an intentional or knowing state
of mind.
In Alston, the court held that terroristic threatening
is not a lesser included offense of intimidating a witness, in
part because the court determined that the “two offenses have
‘different’ mens rea requirements.” 75 Hawai#i at 534, 865 P.2d
at 166. The court first noted that terroristic threatening can
be committed with the lesser mental state of recklessness, while
intimidating a witness requires an intentional mental state. Id.Thus, terroristic threatening does not have a mental state
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greater than that required for intimidating a witness. However,
the court held that the two offenses have “different” mental
state requirements because “intimidating a witness requires the
intent to cause another’s absence from an official proceeding,
and terroristic threatening requires the intent to cause, or
recklessness in causing, terror.” Id.Murder in the second degree and assault in the first
degree do not require “different” mental states under the Alston
analysis. To prove the offense of murder in the second degree,
the State must establish that “the person intentionally or
knowingly cause[d] the death of another person.” HRS § 707-
701.5(a). To prove the offense of assault in the first degree,
the State must show that the “person intentionally or knowingly
cause[d] serious bodily injury to another person.” HRS § 707-
710(1).
Therefore, assault in the first degree does not have a
mental state greater than or different from that which is
required for murder in the second degree.
2.
Second, subsection (c) “provides that a crime can be a
lesser included offense when a less serious injury or risk of
injury to the same person is involved.” Burdett, 70 Haw. at 91,
762 P.2d at 168. See Kupau I, 63 Haw. at 8, 620 P.2d at 254(injury resulting from harassment is different from, and
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therefore not less serious than injury received from assault in
the third degree, because “[a]lthough harassment requires a
physical touching, [the statute] is concerned with the offensive
nature of the touching to one’s sensibilities”).
Both murder in the second degree and assault in the
first degree require that the person intentionally or knowingly
cause physical harm to another. They differ in that assault in
the first degree requires a “less serious injury or risk of
injury to the same person,” consistent with HRS § 701-109(4)(c).
If a person “causes the death of another” under HRS § 707-
701.5(a), then the person will necessarily have caused a “bodily
injury which creates a substantial risk of death” under HRS §§
707-710(1) and 707-700 (emphasis added). See Young v. State, 605
S.W.2d 550, 552 (Tex. Crim. App. 1979) (“one cannot intentionally
or knowingly cause the death of another without committing an act
clearly dangerous to human life”).13
“HRS [§] 701-109(4) has been taken almost verbatim from
the Proposed Official Draft of the Model Penal Code, [§] 1.07(4)
(1962).” Kupau I, 63 Haw. at 4, 620 P.2d at 252. The commentary
13
The Hawai#i Penal Code is patterned after the Model Penal Code.
See State v. Gaylord, 78 Hawai#i 127, 140 n.22, 890 P.2d 1167, 1180 n.22
(1995).
The Model Penal Code was also “highly influential” in the
development of the Texas Penal Code. See Thompson v. State, 236 S.W.3d 787,
797 (Tex. Crim. App. 2007) and Brown v. State, 955 S.W.2d 276, 284 (Tex. Crim.
App. 1997) (“Because the Legislature expressed an intent to model our Code
after the Model Penal Code, we may also look to the Model Code for
guidance.”).
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to the Model Penal Code (MPC) § 1.07(4) expressly provides that
“Paragraph (c) allows conviction of an offense consisting of an
intentional infliction of bodily harm where the charge is
intentional homicide[.]” MPC § 1.07 cmt. 5 (Revised Comments
1985) (emphasis added).
The MPC defines criminal homicide as “purposely,
knowingly, recklessly or negligently caus[ing] the death of
another human being.” MPC § 210.1(1). Criminal homicide
constitutes murder when “it is committed purposely or knowingly.”
MPC § 210.2(1). Under the MPC, purposely is equivalent to
“intentionally” or “with intent.” MPC § 1.13(12). See MPC §
2.02(2)(a) (defining general requirements of culpability).
Accordingly, the MPC formulation of murder is identical
to the definition of murder in the second degree under HRS § 707-
701.5 (intentionally or knowingly causing the death of another
person). The MPC also defines “aggravated assault” as
“purposely, knowingly or recklessly” causing “serious bodily
injury,” MPC § 211.1(2)(a) (Revised Commentaries 1980), similar
to HRS § 707-710 (intentionally or knowingly causing serious
bodily injury).
Thus, consistent with the MPC, HRS § 701-109(4) allows
for a conviction of assault in the first degree where the charge
is murder in the second degree. See State v. Box, 626 N.E.2d
996, 1000 (Ohio Ct. App. 1993) (holding that “felonious assault,”
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defined as “knowingly . . . caus[ing] serious physical harm to
another,” is a lesser included offense of aggravated murder,
defined as “purposely, and with prior calculation and design,
caus[ing] the death of another”).14 See also Hall v. State, 295
S.E.2d 194, 195 (Ga. App. 1982) (holding that aggravated assault
with intent to commit murder may be charged as a lesser included
offense of murder).15
Furthermore, finding that assault in the first degree
is a less serious degree of injury or risk of injury than murder
in the second degree is consistent with the concept that a
defendant may act intentionally or knowingly with respect to the
conduct, but not as to the result of the conduct. For example,
in State v. Kupau (Kupau II), 76 Hawai#i 387, 391, 879 P.2d 492,
496 (1994), overruled on other grounds by State v. Haanio, 94
Hawai#i 405, 16 P.3d 246 (2001), in the context of an assault
case, the court explained that the defendant could have acted
intentionally or knowingly with respect to his conduct, and the
victim could have in fact suffered substantial bodily injury as a
result thereof. However, if the defendant did not act
intentionally or knowingly with respect to that result of
14
“Ohio's statutory definitions of criminal offenses in the Revised
Code are based largely upon the American Law Institute's Model Penal Code.”
State v. Brooks, 542 N.E.2d 636, 641 (Ohio 1989).
15
“[T]he present Criminal Code was based in large measure on the
Model Penal Code.” Grace v. State, 200 S.E.2d 248, 255 (Ga. 1973).
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substantial bodily injury, but only acted recklessly with respect
to the result, then the defendant “may, depending upon the
circumstances,” only be guilty of the lesser included offense of
assault in the third degree (requiring intentional, knowing or
reckless state of mind) rather than the charged offense of
assault in the second degree (requiring intentional or knowing
state of mind).16 Id. at 391-92, 879 P.2d at 496-97.
By the same reasoning, if there is a rational basis in
the evidence to prove that the defendant acted intentionally or
knowingly with respect to the conduct of causing serious bodily
injury, but the defendant did not act intentionally or knowingly
with respect to the result of death, then an assault in the first
degree instruction should be given.
The circuit court in this case did not give the lesser
included instruction on assault because murder results in death
while assault does not result in death. However, as stated, in
both situations, serious bodily injury was caused to another
person; but in a murder prosecution, the serious bodily injury
16
The Kupau II court interpreted HRS § 707-711(1) (Supp. 1992),
which provided that a person commits the offense of assault in the second
degree if the person “intentionally or knowingly causes substantial bodily
injury to another.” Kupau II, 76 Hawai#i at 388, 388 n.1, 879 P.2d at 493,
493 n.1. HRS § 707-712 (1985) provided that a person commits the offense of
assault in the third degree if the person “intentionally, knowingly, or
recklessly causes bodily injury to another person.” Kupau II, 76 Hawai#i at
388 n.3, 879 P.2d at 493 n.3.
The current statute provides, as it did on May 8, 2009, that
assault in the second degree is committed if the person intentionally or
knowingly causes substantial bodily injury to another, or if the person
recklessly causes serious or substantial bodily injury to another. HRS § 707-
711(1) (1993).
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has resulted in death. It would be illogical for a court’s
submission of a jury instruction on assault in the first degree
to depend upon the fortuity of the victim living or dying as a
result of the same injuries. That is, in two situations the
defendant could have the identical intent with respect to the
conduct of causing serious bodily injury. However, if in one
situation the victim receives medical assistance and lives, the
jury is instructed on the lesser offense of assault in the first
degree. In the identical situation, where the victim does not
receive medical care and dies, the jury is not so instructed.
Under the same reasoning, the timing of the trial could determine
whether the instruction on assault is given, depending on whether
the victim eventually succumbs to the injuries.
Accordingly, the offense of assault in the first degree
differs from the offense of murder in the second degree only in
the respect that a less serious injury (i.e. substantial risk of
death versus death) suffices to establish its commission.
3.
Third, we consider the end result to determine whether
an offense is included in another. “The Commentary to HRS § 701-
109 and this court in Kupau [I] indicated that the lesser
included offense should produce the same end result as the
charged offense.” Burdett, 70 Haw. at 89, 762 P.2d at 167. The
“end result” refers to the result of the criminal act. For
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example, negligent homicide has the same end result as murder
under HRS § 701-109(c). Commentary to HRS § 701-109.
However, this court has never stated that the “end
result” factor is dispositive. The end result is only one of the
factors that can be considered in determining whether one offense
is included in another. See State v. Woicek, 63 Haw. 548, 551,
632 P.2d 654, 656 (1981) (“some of the factors that can be
considered in determining whether an offense is included in
another are the degree of culpability, the end result and
legislative scheme”) (emphasis added).
In Kupau I, the court found that harassment and assault
in the third degree do not produce the same end result, as the
end result of assault is bodily injury, and harassment has no
such result. 63 Haw. at 7, 620 P.2d at 254. The court further
noted that the evidence in that case showed that the victim
“suffered mental anxiety as a result of the incident, but not
bodily injury as would result from assault.” Id.In this case, the circuit court relied on Alston as a
basis for its determination that “the end result” of assault and
murder are different because murder involves a “dead person”
whereas assault involves “pure injury.”17 In Alston, the court found
17
The circuit court “combine[d]” Alston and Robinson to reach this
conclusion. Robinson, however, was decided on the grounds that the defendant
“points to evidence that the victim suffered bodily injury as well as serious
bodily injury” but offered no theory under which the victim suffered only
(continued...)
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that the terroristic threatening offense and intimidating a
witness offense have “distinct” end results. 75 Haw. at 535, 865
P.2d at 167. The court explained that “[t]heoretically,
terroristic threatening produces a psychological injury to the
person threatened,” whereas “intimidating a witness results in
the absence of the person threatened from an official proceeding
to which he or she was legally summoned.” Id. (emphases added).
“Stated differently in the context of the legislative
classification, terroristic threatening produces a personal
injury while intimidating a witness impairs the administration of
a public function.” Id. (emphasis added).
Thus, the focus in Alston was on the nature of the
harm; i.e. psychological injury versus physical absence of the
person from judicial proceedings. The court referred to the
different legislative classification of the offenses as a way of
emphasizing the distinct nature of the harm for each offense.
This is similar to the court’s approach in Burdett, in which the
court explained that the end results of harassment and
terroristic threatening are similar but distinct, because
“terroristic threatening involves threats and psychological
17
(...continued)
bodily injury and no serious bodily injury. 82 Hawai#i at 314, 922 P.2d at
368. In other words, the defendant in Robinson presented no evidence that she
could be acquitted of assault in the first degree and convicted of assault in
the third degree. Id. In this case, as discussed infra, there was sufficient
evidence for the jury to conclude that Paul intentionally or knowingly
committed assault but did not intend to cause Charles’ death.
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rather than actual physical harm, while the harassment statute
seeks to preserve public peace and prohibits insults or
challenges likely to provoke a violent or disorderly response.”
70 Haw. at 89, 762 P.2d at 167.
Whereas Kupau, Burdett, and Alston involved offenses in
which the end results were distinct due to the different
legislative purposes for the offenses, assault and murder are
both classified as offenses against the person, and both result
in actual physical harm to a person. Cf. State v. Kinnane, 79
Hawai#i 46, 56, 897 P.2d 973, 983 (1995) (finding the end results
of attempted sexual assault in the second degree and sexual
assault in the fourth degree are the same because “[i]n both
instances the victim is placed in jeopardy of being injured or is
being injured by the defendant’s conduct,” even though sexual
assault in the fourth degree “envisions a less serious injury or
risk of injury [(sexual contact)] than attempted sexual assault
in the second degree [(risk of sexual penetration)]”). The “end
result” factor therefore weighs in favor of finding that assault
in the first degree is a lesser included offense of murder in the
second degree.
4.
Finally, the court may consider the legislative
statutory scheme for both offenses in determining whether one is
a lesser included offense of the other. This court has
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considered whether the offenses are placed in separate categories
under the Hawai#i Penal Code. See Kupau I, 63 Haw. at 7, 620
P.2d at 254 (“the structure of the Hawai#i Penal Code places the
offenses of harassment and assault in the third degree in
separate categories,” with the former placed in the chapter of
“Offenses Against Public Order” and the latter placed in the
chapter of “Offenses Against Persons”); Alston, 75 Haw. at 534,
865 P.2d at 166 (“terroristic threatening is classified as an
offense against the person in HRS chapter 707, while intimidating
a witness is classified as an offense against public
administration in HRS chapter 710”). Separate classification of
offenses under the Penal Code “indicates that different societal
interests were intended to be protected[.]” Kupau, 63 Haw. at 7,
620 P.2d at 254.
In this case, assault in the first degree and murder in
the second degree are both classified as offenses against persons
under HRS Chapter 707.
5.
The analysis under HRS § 701-109(4)(c) demonstrates
that assault in the first degree differs from murder in the
second degree only in that assault in the first degree involves a
less serious injury or risk of injury. Assault in the first
degree does not have a mental state different from that required
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for murder in the second degree; both require an intentional or
knowing mental state. Both offenses have the same end result,
given that both result in physical harm to the person. Assault
in the first degree results in a lesser degree of harm than
murder in the second degree. Finally, both offenses are part of
the same legislative statutory scheme under “Offenses Against the
Person.” Thus, assault in the first degree is a lesser included
offense of murder in the second degree under HRS § 701-109(4)(c).
C.
The question then becomes whether there was a rational
basis in the evidence to acquit Paul of murder in the second
degree and convict him of assault in the first degree. Flores,
131 Hawai#i at __, 314 P.3d at 130.
“Jury instructions on lesser-included offenses must be
given where there is a rational basis in the evidence for a
verdict acquitting the defendant of the offense charged and
convicting the defendant of the included offense.” Id. at __,
314 P.3d at 128. “[J]urors are at liberty to believe all, none,
or part of the evidence as they see fit.” Haanio, 94 Hawai#i at
415, 16 P.3d at 256.
In this case, there was a rational basis for acquitting
Paul of the murder charge and convicting him of assault in the
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first degree.18 First, Paul testified that while he was trying
to hurt Charles, he did not intend to kill him. Had the jury
believed Paul’s testimony, the jury would have had a rational
basis for finding that Paul did not intentionally or knowingly
cause Charles’ death. Paul testified that he was trying to
“hurt” Charles. Paul stated he did not know “how much” he was
trying to hurt Charles. Paul also said that “At that time I
wasn’t thinking. My mind was just --.”
Additionally, the circumstances of the incident could
have led the jury to believe that Paul did not intentionally or
knowingly cause Charles’ death. The offense was committed with a
metal bar that kept the gate closed to keep the dogs in the yard,
which provides some evidentiary support that Paul did not plan to
18
The dissent contends that “neither party here advocated for the
approach taken by the majority.” Dissenting Opinion at 3-4. This is
incorrect.
At trial, during the settlement of the jury instructions, defense
counsel argued to the court that “an offense is so included when it differs
from the offense charged only in the respect that a less serious injury or
different state of mind suffices to establish its commission. That’s exactly
what we have here.”
In his first point of the Statement of the Points Relied Upon,
Paul argued that, “The requested Assault instructions should have been
submitted to the jury pursuant to HRS § 701-109(4)(a) as assault ‘is
established by proof of the same or less than all the facts required to
establish’ murder.”
In the argument section of his Opening Brief, Paul stated the
following: “Paul’s requests from the lower court for first-and second-degree
Assault as lesser-included offenses of Murder in the Second Degree is
precisely because the Assaults involve ‘less serious injuries to the same
person,’ and because they also involve a ‘different state of mind indicating a
lesser degree of culpability.’”
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intentionally or knowingly cause Charles’ death.19 Paul’s
initial focus was breaking the car windshield and windows and not
on attacking Charles’ person.
It also appears that Paul never opened the car door to
attack Charles. Consistent with the attack being carried out
through the window, Calvin testified that Paul was “poking” at
Charles. Paul also testified that he “jabbed” or “was jabbing”
at Charles.
While Paul acknowledged that he knew hitting someone in
the head with the bar could cause death, he testified that at the
time he was attacking Charles he did not aim for any particular
part of Charles’ body. Some of Charles’ wounds were consistent
with being attacked from outside the driver-side door and were
described by Dr. Suzuki as “defensive type injuries.” She also
testified that there were no skull fractures.
The incident occurred at 9:00 or 9:30 at night. Paul
described the scene as “dark.” Similarly, a neighbor testified
that “the street was dim. Where everything took place was very
dark as well.” Paul also testified that he “couldn’t see blood.”
Under the circumstances, Paul may not have been aware where his
jabs were landing.
19
While plan is not an element of the offense of murder in the
second degree, the lack of a plan may make it more likely that Paul did not
intend to cause Charles’ death.
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Paul also testified that he intended to take Charles to
the hospital when Debbie took the keys from the truck. Intending
to take a person to the hospital would also provide evidentiary
support that Paul did not intentionally or knowingly cause
Charles’ death. Furthermore, when Paul was in the truck and the
keys were taken by Debbie, Paul was no longer in possession of
the bar, as it had been taken from him by Calvin. Debbie also
testified that when the incident ended Charles had a pulse and
was breathing.
Furthermore, the testimony was conflicting as to
whether Paul said he would kill Charles. Calvin testified that
Paul said prior to the day of the incident that he would “kill”
Charles if he ever saw him. However, Calvin acknowledged that
Paul could have said “he don’t know what might happen” if he saw
Charles. Paul denied telling Calvin that Paul wanted to kill
Charles. Debbie testified that, on the night of the incident,
Paul said “many times” that “he going kill him” referring to
Charles. However, Debbie admitted that she did not tell the
police this information or include it in her written statement.
The jury would also have had a rational basis for
believing that Paul was trying to protect Debbie by warning or
punishing Charles. Paul testified multiple times that he
believed that Charles was physically abusing Debbie. He
testified that he was not jealous and the attack was “like trying
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to keep her safe, protect -- protecting her.” Paul testified
that he “never like . . . something happen to her” “[b]ecause
[Charles] was hurting Debbie.”
The jury’s verdict in this case also indicates that the
jury believed Paul did not intentionally or knowingly cause
Charles’ death. The jury convicted Paul of the included offense
of reckless manslaughter, which rejects the conclusion that Paul
intentionally or knowingly caused Charles’ death. See HRS § 707-
702(1)(a) (Supp. 2006).
The court made its decision not to instruct the jury on
assault based on its analysis of the law as interpreted though
Robinson and Alston, not upon facts adduced at trial. The
prosecution also argued against the inclusion of the assault
charges based on an interpretation of law and not on the factual
circumstances of the case.
The totality of the evidence showed a rational basis
for acquitting Paul of murder in the second degree and convicting
him of assault in the first degree. Because assault in the first
degree is a lesser included offense of murder in the second
degree, Paul was entitled to a jury instruction on assault in the
first degree. The court’s failure to give this instruction was
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not harmless beyond a reasonable doubt. Flores, 131 Hawai#i at __
, 314 P.3d at 134.20
Thus, the ICA erred in affirming the court’s judgment
because the court erred in failing to instruct the jury on the
included offense of assault in the first degree.
D.
The dissent contends that under the facts of this case
that the jury “could not have” found that Paul committed assault
in the first degree “without also finding that [Paul] consciously
disregarded a substantial and unjustifiable risk that his conduct
would cause [Charles’] death.” Dissenting Opinion at 6. In
other words, the dissent is contending that the same evidence
that would have permitted the jury to convict [Paul] of first
degree assault would have also required the jury to convict him
of reckless manslaughter. Id. at 6, 9.
This contention is incorrect both as a matter of law
and of fact. First, as a matter of law, a jury’s determination
of intentionally or knowingly causing serious bodily injury does
not provide any inference that the jury would have concluded that
the defendant consciously disregarded a risk that the defendant’s
20
As noted by Paul in his Application, the court interrupted Defense
Counsel “during closing arguments when counsel was arguing to the jury that if
they believed the instant matter was an assault case, then they should find
Paul not guilty.” The court interrupted to say that “Assault is not to be –
assault is not a consideration.” Denying defense counsel the ability to make
this very argument highlights the harmful error caused by a failure to
properly instruct the jury.
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conduct would result in the injured person’s death, much less
that the manslaughter offense was required to have been proved
for the jury to return an assault in the first degree verdict.
Second, as a matter of the facts adduced at trial, the
contention that a finding of assault in the first degree in this
case would require a jury to convict Paul of manslaughter is not
correct.
Paul testified that at the time he was assaulting
Charles he did not aim for Charles’ head or for any particular
part of Charles’ body. In view of Paul’s testimony, it was for
the jury to judge the credibility of his statements and to assess
Paul’s actions before, during, and after the incident in light of
all the other evidence to determine Paul’s state of mind during
the incident.
Nevertheless, the dissent maintains that the jury was
required to find that Paul consciously disregarded the risk that
the jabbing would cause Charles’ death. As stated, however, Paul
testified that he was not aiming for any particular part of
Charles’ body, and it appeared that Charles was trying to fend
off the jabs and suffered “defensive injuries” but no skull
fractures according to Dr. Suzuki. Paul never testified that he
consciously disregarded the risk that his conduct would cause
Charles’ death, and in fact, his testimony essentially rejected
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such a contention as he indicated “At that time I wasn’t
thinking. My mind was just - -.”
Thus, it is the duty of a jury, and not an appellate
court, to weigh such evidence; it would be contrary to
fundamental principles of our jury system to hold, as the dissent
urges, that as a matter of law the jury “could not have” found
assault in the first degree “without also finding” that Paul
consciously disregarded the risk that the jabbing would cause
Charles’ death.
It bears repeating that the jury in this case evaluated
Paul’s intent during the incident and, based upon its
consideration of all the evidence, concluded that the government
had not proved that Paul intended to cause Charles’ death or that
Paul was aware that his conduct was practically certain to have
that result. Thus, it would appear that the jury did give some
weight to Paul’s testimony regarding the events.
However, because the jury was not permitted to consider
assault in the first degree, the jury was compelled to either
acquit Paul entirely or convict him of manslaughter. Since Paul
had acknowledged that he had tried to hurt Charles for what
Charles had done to Debbie and because the jury did not have an
included offense alternative, the jury had little choice but to
return a verdict of manslaughter. Keeble v. United States, 412
U.S. 205, 212-13 (1993) (requiring instruction on lesser-included
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offenses protects defendant from the danger that “[w]here one of
the elements of the offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury is likely
to resolve its doubt in favor of conviction”).
Unequivocally, this is not a case where the evidence
requires a verdict of manslaughter where Paul’s state of mind
“remains in doubt.” Id. Under the facts of this case, a jury
may or may not determine that Paul “consciously disregarded” the
risk that his conduct would cause Charles’ death. But that
decision is for a jury, and not for this court as a matter of
law, as the dissent contends.21
III.
Based on the foregoing, the ICA’s and the circuit
court’s judgments are vacated and this case is remanded to the
circuit court for a new trial.
Randall K. Hironaka /s/ Paula A. Nakayama
for petitioner
/s/ Simeon R. Acoba, Jr.
Stephen K. Tsushima
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
21
In light of our determination that there was a rational basis in
the evidence for the jury to acquit Paul of manslaughter and convict him of
assault in the first degree, we do not address the dissent’s reading of the
term “charged offense” in HRS § 701-109(5).
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