State v. Basnet.Â

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Electronically Filed
Supreme Court
SCWC-11-0000762
18-DEC-2013
09:54 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
SUSHIL BASNET, Petitioner/Defendant-Appellant.
SCWC-11-0000762
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000762; FC-CR. NO. 11-1-1675)
December 18, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold first, that respectfully, the Family Court of
the First Circuit (the family circuit court) should have
arraigned Petitioner/Defendant-Appellant Sushil Basnet (Basnet)
in accordance with Hawai#i Rules of Penal Procedure (HRPP) Rule
10(a), but because it failed to do so, the case must be dismissed
without prejudice. Second, in the event of retrial, we hold that
the charge was sufficient inasmuch as it “fully defin[ed] the
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offense in unmistakable terms readily comprehensible to persons
of common understanding.” State v. Jendrusch, 58 Haw. 279, 282,
567 P.2d 1242, 1245 (1977). Accordingly, the family circuit
court’s judgment of conviction and sentence entered on September
23, 2013 is vacated and the case is dismissed without prejudice.
I.
A. Arrest and Complaint
Basnet was arrested following an incident that took
place the morning of June 7, 2011 at the Himalayan Kitchen
restaurant. Respondent/Plaintiff-Appellee State of Hawai#i (the
State) filed a Complaint against Basnet on June 9, 2011. The
caption on the Complaint stated “IN THE DISTRICT COURT OF THE
FIRST CIRCUIT” and the Complaint stated as follows:
The undersigned Deputy Prosecuting Attorney of the
City and County of Honolulu, State of Hawaii charges:
On or about the 7th day of June, 2011, in the City and
County of Honolulu, State of Hawaii, SUSHIL BASNET did
intentionally, knowingly, or recklessly physically abuse
[Basnet’s wife], a family or household member, thereby
committing the Offense of Abuse of Family or Household
Members [(AFHM)], in violation of Section 709-906(1)[ 1] of
the Hawaii Revised Statutes [(HRS)]. SUSHIL BASNET is
1
HRS § 709-906(1) (Supp. 2006) provides:
(1) It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member or
to refuse compliance with the lawful order of a police
officer under subsection (4). The police, in investigating
any complaint of abuse of a family or household member, upon
request, may transport the abused person to a hospital or
safe shelter.
For purposes of this section, “family or household member”
means spouses or reciprocal beneficiaries, former spouses or
reciprocal beneficiaries, persons who have a child in
common, parents, children, persons related by consanguinity,
and persons jointly residing or formerly residing in the
same dwelling unit.
2
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subject to sentencing in accordance with Section 709-906(5)(a) of
the [HRS].
(Emphasis added.) Basnet posted a $1,000 cash bail and received
a notice to appear at the “FAMILY [court] - Alakea” on June 21,
2011.
B. Proceedings Before Judge Choy
On June 21, 2011, a hearing apparently took place in
the family district court before Judge Darryl Y.C. Choy. The
Pre-Trial Order in the record, entered on June 21, 2011 by Judge
Choy states at the top of the form that the order is from the
“Family Court of the First Circuit.” In the section of the form
titled “Trial Setting”, it indicates that Basnet waived reading
of the charge, entered a plea of not guilty, and that a jury
trial was demanded, and thereby the case was committed to circuit
court. Basnet was ordered to appear next on September 19, 2011,
at 1111 Alakea St., Courtroom 8C.
C. Pre-Trial Proceedings Before Judge Castagnetti
On September 19, 2011, the parties appeared before the
Honorable Jeannette H. Castagnetti, in the family circuit court.
Both parties indicated that they were ready to proceed to trial,
and the family circuit court ordered the parties back to appear
the following day for trial.
On Tuesday, September 20, 2011, the family circuit
court informed the parties that the case was a “backup case[] for
trial this week,” and ordered the parties to return that
Thursday, September 22, 2011. The deputy prosecuting attorney
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also made an oral motion to amend the Complaint in the case. He
stated that “[b]asically, the heading at the top says in the
District Court. However, it was filed in the Family Court, and I
just have corrected that with an amended [C]omplaint.” At that
time, defense counsel stated that he had “a rather lengthy
objection”. Defense counsel gave his notes he had made outlining
his objection to Judge Castagnetti, after he indicated that the
notes did not contain any privileged communications. The family
circuit court indicated that it would take the State’s oral
motion to amend the Complaint under advisement, to address when
the parties returned later that week.
On Thursday, September 22, 2011, the family circuit
court addressed the issue of amending the Complaint that was
raised by the deputy prosecuting attorney at the prior hearing.
The deputy prosecuting attorney maintained that the purpose of
amending the Complaint was to correct the typographical error
that the case was in family court, and not in district court.
Defense counsel stated his position that the error was
substantive rather than typographical. In his view, the court
lacked jurisdiction because Basnet was arraigned in circuit
court2 and should have instead been arraigned in district court.
He stated as follows:
2
As will be discussed infra, there was ongoing confusion regarding
the status of the court presided over by Judge Choy. It was actually a family
district court, but defense counsel at this stage of the case apparently
thought it was a family circuit court, perhaps because, as noted, Judge Choy’s
pre-trial order had the heading “Family Court of the First Circuit.”
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Your Honor, my position is that it is not a typographical error.
It is substantive.
This court has no jurisdiction for two very
fundamental reasons. And I understand that it’s probably
very upsetting because what it means is that all of these
cases are inappropriately being processed. Yet, as you
know, the appellate court did strike down hundreds of --
several hundred DUI cases last year because they, in fact,
were not being properly charged. My argument is, one, this
case is not properly charged and, two, it is not being
properly processed.
It’s very clear that the family court rules
specifically state that the [HRPP] govern these types of
cases. And, in fact, there are no rules in the family court
rules governing the charge, the arraignment, and the
processing of the defendant. That’s clear.
So we look to the [HRPP]. [The HRPP] are also very
clear on its face, and it says that if someone is charged
with a non-felony, they don’t get arraigned in circuit
court. Family court is circuit court. It was inappropriate
to arraign Mr. Basnet here. It’s -- so as a consequence,
that arraignment is void.
The appropriate place is in the district court. And
then when an individual either refuses to elect jury trial
or demand jury trial, it is incumbent upon the [district]
court to transfer it to the circuit court, and the circuit
court does not obtain jurisdiction until the district court
does so.[3 ] So I’m not simply arguing that he cannot amend
the [C]omplaint. I’m arguing that this court does not have
jurisdiction.
(Emphases added.) Defense counsel also made further arguments
regarding the sufficiency of the Complaint for failure to define
“physical abuse” or “family or household member”, alleging that
the Complaint should be dismissed pursuant to State v. Wheeler,
121 Hawai#i 383, 219 P.3d 1170 (2009).
The family circuit court rejected defense counsel’s
arguments regarding the arraignment, because it noted that Basnet
was actually arraigned in a family district court:
THE COURT: . . . . First, let’s deal with the issue
of the State’s oral motion to amend the [C]omplaint to have
the heading listed as it being in the family court as
opposed to the district court which [the deputy prosecuting
3
This is the basis of defense counsel’s ultimate argument on this
issue, specifically, that Basnet should have been re-arraigned in the court
that conducted the jury trial.
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attorney] has represented is a typographical error. So I
understand [defense counsel’s] argument that this court
lacks jurisdiction over the subject -- are you saying
subject matter of the [C]omplaint?
[DEFENSE COUNSEL:] . . . Yes.
THE COURT: Okay. And you’re also saying that the
Rules of Penal Procedure were not followed appropriately
because the defendant was arraigned in a circuit court as
opposed to a district court?
[DEFENSE COUNSEL:] That’s correct.
. . . .
THE COURT: Okay, what about the fact that under the
[HRS] that there are family district judges appointed who
have the same powers as district court judges, and the
courtroom next-door where the arraignment took place, those
were family district court judges, and the family court has
exclusive original jurisdiction over cases involving
husbands and wi[ves]?
. . . .
(Emphases added.) The court explained that the statutory scheme
establishes both family district courts and family circuit
courts, and concluded that Basnet had been properly arraigned in
the family district court:
THE COURT: Okay. All right. All right, so [HRS]
Chapter 571 pertains to family court, and specifically, [HRS
§] 571-3 [(2006)4 ] establishes that family courts are
divisions of the circuit courts within the state. HRS [§]
571-8 [(2006)] establishes district family courts in
addition to the district courts established under HRS [§]
604-1 [(1993) 5].
4
HRS § 571-3 provides:
The family courts shall be divisions of the circuit courts
of the State and shall not be deemed to be other courts as
that term is used in the State Constitution. A family court
shall be held at the courthouse in each circuit, or other
duly designated place, by the judge or judges of the
respective family courts as herein defined. The chief
justice of the supreme court may temporarily assign a family
court judge to preside in another circuit when the urgency
of one or more cases requires the chief justice to do so.
In any case in which it has jurisdiction the court shall
exercise general equity powers as authorized by law.
(Emphasis added.)
5
HRS § 604-1 provides, in relevant part:
There shall be established in each of the judicial circuits
of the State a district court with the powers and under the
(continued...)
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Pursuant to HRS [§] 571-8(b)[6 ], the Chief Justice may
designate a district family judge to act as a district judge
and, when so appointed, shall have all the powers of a
district judge appointed pursuant to HRS [§] 604-2 [(Supp.
1994) 7].
[HRS §] 571-8.5 [(2006)8 ] gives district family judges
the power to make and issue all orders and writs necessary
or appropriate in aid of their original jurisdiction. And
HRS [§] 571-14 [(Supp. 2008)] gives the family court
exclusive original jurisdiction to try an adult charged with
an offense other than a felony against the person of the
defendant’s husband or wife, and in particular, that’s
5
(...continued)
conditions herein set forth, which shall be styled as
follows:
(1) For the First Judicial Circuit: The District Court of
the First Circuit.
. . . .
6
HRS § 571-8(b) states, in relevant part:
(b) When in the discretion of the chief justice of the
supreme court the urgency or volume of cases so requires,
the chief justice may appoint one or more district family
judges for each judicial circuit. In addition, within any
circuit, the chief justice may designate any district judge
of the district court to act as a district family judge
within that circuit; the judge when so designated shall
exercise the powers of a district family judge appointed
pursuant to this section.
(Emphasis added.)
7
HRS § 604-2 provides, in pertinent part:
(b) The chief justice shall appoint district judges to serve
on a per diem basis and as may be necessary to provide
auxiliary judicial functions in the several districts of the
State. Per diem district judges may engage in the private
practice of law during their term of service, and shall
receive per diem compensation for the days on which actual
service is rendered based on the monthly rate of
compensation paid to a district court judge. For the
purpose of determining per diem compensation in this
section, a month shall be deemed to consist of twenty-one
days.
(Emphasis added.)
8
HRS § 571-8.5 provides, in relevant part:
(a) The district family judges may:
. . . .
(3) Make and issue all orders and writs necessary or
appropriate in aid of their original jurisdiction;
. . . .
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[HRS §] 571-14(2)(B)[ 9].
So I’m going to find that this court has jurisdiction,
and also, that the defendant was properly arraigned by a
district family court judge. And so I’m going to grant the
State’s oral motion to amend the [C]omplaint. I’ll also
find that there’s been no prejudice to the defendant with
respect to the amendment. It was, as the State represented,
a typographical error, that this case is a family court
criminal matter. It was assigned to a family court criminal
number, and it was just a matter of changing the heading to
be in the family court of the first circuit, State of
Hawaii.
(Emphases added.)
Defense counsel then asked the family circuit court to
take judicial notice “of the lack of a commitment order from the
district court to the circuit court.” He also stated that he
“would like findings with respect to whether the family circuit
court is declaring that it is unnecessary for the family district
court judge and the family district court, if you will, then, to
not abide by the [HRPP] which specifically require a commitment
order and a second arraignment within 14 days[.]”10 The family
circuit court declined to make the requested findings, but stated
that there was no commitment order that was issued by the
9
HRS § 571-14 provides, in relevant part:
(a) Except as provided in sections 603-21.5 and 604-8, the
[family] court shall have exclusive jurisdiction:
. . . .
(2) To try any adult charged with:
. . . .
(B) An offense, other than a felony,
against the person of the defendant’s husband or
wife[.]
. . . .
(Emphasis added.)
10
Defense counsel was presumably referring to HRPP Rule 10(a),
discussed further infra, which provides that “A defendant who has been held by
district court to answer in circuit court shall be arraigned in circuit court
within 14 days after the district court’s oral order of commitment . . . .”
(Emphasis added.)
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district family judge after arraignment of the defendant.
Defense counsel responded that “there was no subsequent
arraignment within the 14 days, as required by the rules.”
As to defense counsel’s argument based on Wheeler, the
family circuit court took Basnet’s oral motion to dismiss the
Complaint under advisement and indicated that it would make
findings as to the issues raised regarding the sufficiency of the
Complaint.
D. Trial, Sentencing, and Post-Trial Proceedings
The family circuit court then heard the motions in
limine and the case proceeded to voir dire and jury selection.
Trial commenced that same day.
The following day, September 23, 2011, trial was set to
continue. Before the jury was brought in, the family circuit
court orally ruled on defense’s oral motion to dismiss the
Complaint pursuant to Wheeler for failure to state a claim or
failure to state an offense. Relying on Wheeler, and State v.
Mita, 124 Hawai#i 385, 245 P.3d 458 (2010), the family circuit
court denied the motion.
Defense counsel also asked the family circuit court to
reconsider its earlier finding that “because a District Court
judge conducted the arraignment, the matter occurred in the
District Court of the . . . Family Court, District Court
division.” Defense counsel averred that Judge Choy was a per
diem judge, but not necessarily a District Court judge. He
therefore argued that there was no evidence that the earlier
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proceeding occurred in the District Court, and that, in the
alternative, even if it was in the District Court, there was no
commitment order to the Circuit Court.
The family circuit court then asked defense counsel how
his client was prejudiced by any of the proceedings “from the
time he was arrested to arraignment and plea to today[.]”
Defense counsel responded that “[Basnet] has been prejudiced by
the [family circuit] court not having jurisdiction or he wouldn’t
be here today.” Defense counsel said:
And it’s our opinion that the [family circuit] court
doesn’t have jurisdiction, that the rules require, again,
arraignment in the District Court, followed by commitment
orders, followed by a second arraignment. Now, at that
second arraignment, Mr. Basnet may have already had time to
consult with counsel, had gone to the Public Defender, may
or may not have waived jury trial. It’s unknown in terms of
what sequence of events would have occurred. But he was
denied a second arraignment which he was entitled to.
(Emphasis added.) This was construed as an oral motion for
reconsideration of the family circuit court’s ruling. The family
circuit court asked defense counsel to put the motion in writing,
said it would give the State an opportunity to brief the issue,
and stated that the motion would be contingent on the outcome of
trial.
Trial then continued that day, with the family circuit
court giving the jury the following instructions, in pertinent
part:
In the [C]omplaint, the defendant, Sushil Basnet, is
charged with the offense of Abuse of Family or Household
Members.
A person commits the offense of Abuse of Family or
Household Members if he intentionally, knowingly, or
recklessly physically abuses a family or household member.
There are three material elements to the offense of
Abuse of Family or Household Members, each of which the
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prosecution must prove beyond a reasonable doubt.
These three elements are:
1. That on or about June 7, 2011, in the City and
County of Honolulu, State of Hawai#i, the defendant
physically abused [the defendant’s wife]; and
2. That at that time, the defendant and [the
defendant’s wife] were family or household members; and
3. That the defendant did so intentionally,
knowingly, or recklessly as to each of the foregoing
elements.
Family or household member mean spouses or reciprocal
beneficiaries, former spouses or reciprocal beneficiaries,
persons who have a child in common, parents, children,
persons related by consanguinity, and persons jointly
residing or formerly residing in the same dwelling unit.
Physical abuse means causing bodily injury to another
person.
Bodily injury means physical pain, illness, or any
impairment of physical condition.
. . . .
The jury deliberations took place that day, and in the
afternoon the jury indicated that it had reached a verdict. The
jury found Basnet guilty of AFHM. Basnet was also sentenced the
same day to two years’ probation, including, as special terms and
conditions of probation, that Basnet serve two days in jail with
credit for time served, pay $55.00 as a Crime Victim Compensation
Fee, pay a Probation Service Fee of $150.00, and undergo domestic
violence intervention as directed by his probation officer.
Basnet was ordered to appear on October 19, 2011 for execution of
the sentence or conditions of bail pending appeal.
After sentencing, the family circuit court briefly
raised the issue of Basnet’s previous motions, stating that they
were denied for the reasons that the court had already indicated.
Defense counsel indicated that he did not intend to file his
motion for reconsideration in writing, but rather decided to
“leave it to appeal.” The following exchange regarding
arraignment then took place:
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THE COURT: Okay, I understand that. All right. So
as to -- we can do this then. [Deputy prosecuting
attorney], as -- as to [defense counsel’s] then oral motion
for reconsideration of his motions to dismiss for lack of
jurisdiction, I think particularly under [] Wheeler or --
and, also, the motion to dismiss for lack of jurisdiction,
specifically that -- I think we -- there [were] a number of
arguments -- and, [defense counsel], you can correct me if
I’m not stating this properly -- the fact that the Family
District Court lacked jurisdiction under -- under the Rules
of Penal Procedure and that after -- and that the defendant
should have been arraigned in District Court, is that
correct, and then after he demanded a jury trial, the matter
should have been committed to Circuit Court by way of a
commitment order, and then once in Circuit Court, he was
required to have an arraignment within 14 days of his
arraignment, and then the matter should have been set --
[Defense counsel:] Yes.
THE COURT: -- for trial? That’s the basis --
[Defense counsel:] Correct.
THE COURT: -- of your motion?
Okay, [deputy prosecuting attorney], anything
further you want to put with respect, on the record, to
that?
[Deputy prosecuting attorney:] No, Your Honor.
THE COURT: All right. And, again, the court is
denying that motion. There’s -- hasn’t -- as the court sees
it, no prejudice to the defendant with respect to the
procedure that was followed in this case. And, of course,
if the appellate courts disagree, then we will find out once
they go up --
. . . .
-- on appeal.
(Emphases added.)
II.
A. Basnet’s Opening Brief
1. HRPP Rule 10(a)
On October 18, 2011, Basnet filed a notice of appeal
with the ICA. Basnet’s first point of error was that “[t]he
[family circuit] court jurisdictionally erred in denying Basnet’s
motion to dismiss for failing to hold an arraignment within
fourteen days of Basnet demanding a jury trial in the Family
District court pursuant to HRPP Rule 10(a).” In connection with
this argument, Basnet pointed out that the family circuit court
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failed to conduct an arraignment even when he objected to not
having been properly arraigned.
2. Sufficiency of the Complaint
Basnet’s second point of error was that “the
[C]omplaint failed to define the terms ‘physical abuse’ and
‘family or household member.’” In connection with this argument,
Basnet contended that “physical abuse” is an element of the
offense of AFHM that “should be defined [in the Complaint] as to
provide him with fair notice of what the element means.” Basnet
further argued that while HRS § 709-906(1) provides a definition
of “family or household member,” the definition was not included
in the Complaint and thus the “mere citation in the written
charge to HRS § 709-906(1) . . . simply does not cure the defect
in the charge.”
B. State’s Answering Brief
1. HRPP Rule 10(a) Applicability
In its Answering Brief, the State first alleged that
Basnet should be judicially estopped from arguing that he should
have been re-arraigned in the circuit court, because he had
argued before the trial court judge that the family circuit court
lacked jurisdiction because there was no arraignment in the
district court at all.
The State argued in the alternative that, should the
appellate court consider Basnet’s claim regarding the
arraignment, the arraignment did in fact comport with HRPP Rule
10. On this point, the State contended that “the record shows
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that Basnet was initially arraigned in the Family Court of the
First Circuit” rather than the District Court, and thus “HRPP
Rule 10(a)’s mandate is inapplicable to his situation.” Hence,
the State alleged, the arraignment in the family court of the
first circuit did not deprive the family court of jurisdiction to
hear the case.
2. Sufficiency of the Complaint
With respect to Basnet’s second point of error, the
State argued that the family circuit court correctly interpreted
Wheeler and Mita in denying Basnet’s motion to dismiss for lack
of jurisdiction because the terms “physical abuse” and “family or
household member” were not defined in the charge. The State
contended that “[a] person of ordinary understanding would know
the common meaning of the words ‘physical,’ ‘abuse,’ ‘family,’
‘household,’ and ‘member.’” Hence, the State argued that Basnet
had sufficient notice of the cause of the accusation, because
“[h]e understood that he was charged with causing pain, i.e.,
physical abuse, to his wife, i.e., a family member.”
C. ICA’s Memorandum Opinion
As noted, the ICA filed a Memorandum Opinion in this
case on June 19, 2013. State v. Basnet, No. CAAP-11-0000762,
2013 WL 3094944, at *1 (App. June 19, 2013).
1. Interpretation and Application of HRPP Rule 10
The ICA first addressed Basnet’s contention that the
circuit family court lacked subject matter jurisdiction because
his arraignment did not comply with the HRPP. Id. at *2.
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Notably, the ICA concluded that “[a]lthough the State argues
otherwise,[11] Basnet correctly asserts he was arraigned in the
district family court, not the circuit family court. The
presiding judge at the arraignment hearing was a per diem
judge[], and per diem judges serve as district judges only.” Id.
(emphasis added) (citing HRS § 604-2 and HRS § 571-8).
However, the ICA determined that any impropriety with
respect to the arraignment and failure of the family district
court to enter a separate commitment order “constituted harmless
error and did not warrant dismissal.” Id. According to the ICA,
“[t]he purpose of arraignment is to inform the defendant of the
charges and of their [sic] rights and to give the opportunity to
plead.” Id. Thus, in this case, where Basnet waived reading of
the charge, entered a plea of not guilty, and elected jury trial
during his arraignment in the family district court, and where
the pre-trial order entered by the family district court
specifically noted the case was committed to the family circuit
court for jury trial, Basnet could not show that “the alleged
irregularities affected his substantial rights.” Id.
2. Sufficiency of the Complaint
Second, the ICA noted that this court’s opinion in Mita
held that “‘the State need only allege the statutory definition
11
To reiterate, in its Answering Brief, the State had argued that
HRPP Rule 10 was inapplicable because “the record shows that Basnet was
initially arraigned in the Family Court of the First Circuit” rather than the
family district court.
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of a term when it creates an additional essential element of the
offense, and the term itself does not provide a person of common
understanding with fair notice of that element.” Id. (quoting
Mita, 124 Hawai#i at 392, 246 P.3d at 465). Applying Mita’s
holding, the ICA stated that “Basnet does not contend that either
of the terms [‘physical abuse’ or ‘family or household member’]
created an additional essential element of the offense.” Id. at
*3.
The charge was sufficient according to the ICA, because
the use of terms in the charge was consistent with commonly
understood meanings, such that Basnet had fair notice. Id. It
noted that this court has held that the ordinary reading of
“physical abuse” gives sufficient notice of the prohibited
conduct, id. (citing State v. Kameenui, 69 Haw. 620, 623, 752
P.2d 1250, 1252 (1988)), and that the [C]omplaint did not need to
set forth the full statutory definition of “family or household
member” because “it adequately informed Basnet of the nature and
cause of the accusation against him.” Id. Hence, the ICA
upheld the judgment of the family circuit court as to both of
Basnet’s points of error.
III.
Basnet lists the following questions in his
Application:
(1) Whether the ICA gravely erred in holding that the
failure to arraign Basnet in [family circuit court] was
harmless error where Basnet timely objected before trial?
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(2) Whether the ICA gravely erred in holding that the
[AFHM] charge was sufficient under State v. Wheeler?
The State did not file a Response.
IV.
A. Challenge to Arraignment Procedures
In connection with his first question, Basnet argues
the family circuit court “lacked jurisdiction because [Basnet]
had never been arraigned in that court as required by [HRPP] Rule
10(a).” HRPP Rule 10(a) provides, to reiterate:
(a) A defendant who has been held by district court to
answer in circuit court shall be arraigned in circuit court
within 14 days after the district court’s oral order of
commitment following (i) arraignment and plea, where the
defendant elected jury trial or did not waive the right to
jury trial or (ii) initial appearance or preliminary
hearing, whichever occurs last.
(Emphasis added.) Basnet avers instead that, “[The family
circuit court] just ordered the jury trial to proceed overruling
[Basnet’s] objection.” According to Basnet, (1) “there must be
an arraignment which is intended to identify . . . the accused,
inform[] him of the charge, and obtain a plea[,]” (citing
Territory v. Marshall, 13 Haw. 76, 83 (Haw. Terr. 1900)), (2)
“[a]n arraignment is a critical stage of a criminal
proceeding[,]” (citing Hamilton v. Alabama, 368 U.S. 52, 54
(1961)), and “it must [be] before a judge with proper
jurisdiction[,]” (citing State v. Patterson, 780 S.W.2d 675, 680
(Mo. App. 1989)), (3) “the [family] district court arraignment
was a nullity as it was not in the court in which Basnet was
tried,” and (4) “a conviction is invalid if there is no
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arraignment and the defendant makes a valid timely objection[,]”
(citing Blanton v. State, 115 N.E.2d 122, 123 (Ind. 1953)).
Basnet contends that, as with a timely objection to the
sufficiency of a charge, a criminal defendant should also not be
required to show prejudice where he or she makes a timely
objection to the lack of an arraignment, because “there is no
charge for the defendant to answer.” Basnet asserts that,
contrary to this rationale, the ICA, “in effect, applied the
liberal construct construction standard, essentially a harmless
error standard, to determine if [Petitioner] was entitled to
relief.” (Citing State v. Motta, 66 Haw. 89, 90, 657 P.2d 1014,
1019 (1983).) Basnet maintains that “[w]here a defendant makes a
proper and timely objection, [the liberal construction standard]
has no application.” (Citing State v. Walker, 126 Haw. 475, 489,
273 P.3d 1161, 1175 (2012).)
B. Challenge to the Sufficiency of the Charge
Regarding Basnet’s second question, he asserts that
“[s]ince this court’s decisions in Wheeler [] and Mita [], there
has been much confusion as to when definitions not included in a
criminal statute must be included in a charge so that a criminal
defendant receives fair notice of the charge.” According to
Basnet, “[t]he ICA . . . chose to follow Mita[,] where this court
held that the meaning of ‘animal nuisance’ was apparent from the
words themselves rather than Wheeler which held that a definition
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not in the criminal statute must be expressly charged because the
definition included an element of the offense.”
Basnet construes Wheeler and Mita as holding that “a
person charged with a crime is thereby on notice of all
definitions that apply to the terms used in the charge unless the
definition includes an additional element of the offense in the
form of an attendant circumstances.” He argues that such a
holding is “patently arbitrary” and that “[t]his court should
review this case in order to clarify/refine when Wheeler or Mita
applies to particular facts in a given case or whether one should
be overruled.” Basnet concludes that in this case, the terms
‘physical abuse’ and ‘family or household member’ are not self-
evident and an ordinary person has no idea of what they mean[,]”
therefore, the ICA gravely erred in applying Mita to this case.
V.
A.
As a preliminary matter, it is noted that the ICA
concluded (1) that Basnet was initially arraigned in the family
district court, with Judge Choy presiding, and (2) that no court
entered a separate commitment order.12 The ICA premised its
12
There appears to be no separate written commitment order as part
of the record on appeal, in accordance with HRPP Rule 5(b)(3), although a
checked box on Judge Choy’s Pre-Trial Order indicates that the case was
committed to the circuit court. The State apparently does not challenge the
conclusion that there was no written commitment order.
In his Application, Basnet does not appear to premise his
arguments on the lack of a written commitment order, but rather on the lack of
an arraignment by the circuit court. Also, there is no transcript available
for the June 21, 2011 hearing in which the family district court would have
(continued...)
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conclusion on an interpretation of HRS § 604-2 and HRS § 571-8,
in conjunction with information about Judge Choy from the State
of Hawai#i Judiciary’s 2011 Annual Report. Basnet, 2013 WL
3094944, at *2 n.5. See The Judiciary State of Hawai#i, 2011
Annual Report, at 32 (December 31, 2011), http://www.courts.
state.hi.us/news_and_reports/reports/annual_report_stat_sup_archi
ve.html. According to HRS § 604-2(b), district court judges can
be appointed on a per diem basis. HRS § 571-8 establishes a
district family court in each judicial circuit. No statute or
court rule provides for circuit court judges to be appointed on a
per diem basis. Thus, insofar as Judge Choy was a per diem
judge, he presided in the family district court. Although the
State argued before the ICA that Basnet was actually arraigned in
the family circuit court, it did not file a Response, and thus
does not appear to challenge the conclusion by the ICA that
Basnet was arraigned in family district court.
Family district courts in Hawai#i are courts of limited
jurisdiction. See HRS § 571-8 and HRS § 571-8.5. HRS § 571-8.4
directs that “[t]he senior judge or judge of the family court of
the circuit may direct that any case coming within the
jurisdictional provisions of this chapter, or all cases of a
class or within a district to be designated by the senior judge
or judge, shall be heard by the district family judge.” The
12
(...continued)
entered an oral commitment on the record. Under these circumstances, the
alleged lack of a written commitment order in this case need not be addressed.
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instant case involves “[a]n offense, other than a felony, against
the person of the defendant’s . . . wife[,]” HRS § 571-
14(a)(2)(B). Thus, this case fell within the jurisdictional
provisions of Chapter 571, and accordingly, could initially be
assigned to a district family judge, that is, until the defendant
requested a jury trial.13 HRS § 571-8.4.
District courts are also courts of limited
jurisdiction. HRS § 604-8 states that “[i]n any case cognizable
by a district court under this section in which the accused has a
right to a trial by jury in the first instance, the district
court, upon demand by the accused for a trial by jury, shall not
exercise jurisdiction over the case, but shall examine and
discharge or commit for trial the accused as provided by law[.]”14
In this case, Basnet demanded a jury trial, and, as noted, the
family district court stated in its Pre-Trial Order that the case
was committed to the family circuit court.
HRPP Rule 5(b)(1) provides:
ARRAIGNMENT. In the district court, if the offense charged
against the defendant is other than a felony, the complaint
shall be filed and the proceedings shall be had in
13
The offense of AFHM, HRS § 709-906(1), is a misdemeanor, carrying
a maximum prison term of one year. See HRS § 706-663 (1993) (“the court may
sentence a person who has been convicted of a misdemeanor . . . to
imprisonment for a definite term to be fixed by the court and not to exceed
one year in the case of a misdemeanor . . . .”).
14
Basnet had a constitutional and statutory right to trial by jury in
this case. See HRS § 806-60 (1993) (any defendant charged with a crime for
which the defendant may be imprisoned for six months or more has the right to
trial by jury); State v. Kasprycki, 64 Haw. 374, 375, 641 P.2d 978, 978-79
(1982) (noting that petty offenses without the right to trial by jury are
those for which the term of imprisonment is thirty days or less).
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accordance with this section (b) . . . . When the offense is
charged by complaint, arraignment shall be in open court, or
by video conference when permitted by Rule 43. The
arraignment shall consist of the reading of the complaint to
the defendant and calling upon the defendant to plead
thereto . . . . The defendant may waive the reading of the
complaint or the recitation of the essential facts
constituting the offense charged at arraignment . . . . In
addition to the requirements of Rule 10(e), the court shall
in appropriate cases, inform the defendant of the right to
jury trial in the circuit court and that the defendant may
elect to be tried without a jury in the district court.
As noted, HRPP Rule 10(a) provides that “[a] defendant who has
been held by district court to answer in circuit court shall be
arraigned in circuit court within 14 days after the district
court’s oral order of commitment following (i) arraignment and
plea, where the defendant elected jury trial or did not waive the
right to jury trial . . . .” (Emphasis added.)
Rule 10(a) requires that the defendant be arraigned in
circuit court after the order of commitment. In the instant
case, the defendant was not arraigned in the family circuit court
after the family district court’s order of commitment, as
indicated in its Pre-Trial Order. Thus, it is clear that the
family circuit court erred by not arraigning Basnet.15
B.
Black’s Law Dictionary defines “arraignment” as “[t]he
initial step in a criminal prosecution whereby the defendant is
brought before the court to hear the charges and to enter a
plea.” Black’s Law Dictionary 123 (9th ed. 2009). As noted,
15
No arraignment at all took place in the family circuit court in
this case. Basnet did not explicitly raise any other issue with respect to
the arraignment request under HRPP Rule 10(a), and so our decision is limited
to the issue raised.
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HRPP Rule 10(d) provides that “[a]rraignment in the circuit court
shall be conducted in open court or by video conference when
permitted by Rule 43. The arraignment shall consist of reading
the charge to the defendant or stating to the defendant the
substance of the charge and calling on the defendant to plead
thereto. The defendant shall be given a copy of the charge
before the defendant is called upon to plead.”
In his Application, Basnet mentions the three purposes
of an arraignment, as set forth in Marshall. Marshall stated
that, “[t]he general rule is that there must be in every criminal
case an arraignment and a plea, the object of the arraignment
being to identify the accused, inform him of the charge and
obtain his plea, the object of the plea being to make an issue to
be tried.” 13 Haw. at 83.
Basnet further references State v. Kikuchi, 54 Haw.
496, 510 P.2d 781 (1973), for the proposition that a defendant
can waive his or her right to an arraignment by failing to
properly object to the lack of arraignment, where the defendant
was fully aware of the charge. In Kikuchi, the defendant was
initially charged in the district court for violating an
ordinance Section 15-6.4(3a). 54 Haw. at 496, 510 P.2d at 781.
However, after a trial, he was found guilty of the offense of
violating Section 15-6.4(2a), for which he had never been
charged. Id. Although the procedure is not clear from the
opinion, the defendant apparently then “appealed to the circuit
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court of the first circuit for a trial de novo[,]” and the
circuit court found him guilty of violating Section 15-6.4(2a).
Id. This court noted, however, that the record on appeal did not
show that there was an arraignment of the defendant for violating
Section 15-6.4(2a), or that he entered a plea of not guilty. Id.
at 496-97, 510 P.2d at 781.
Kikuchi posed the question of whether it is “mandatory
that a defendant in a criminal case be arraigned in open court
and that he or the court enter a plea of not guilty? Or, can
arraignment and entry of a plea of not guilty be waived
specifically by defendant or by the conduct of the defendant
during the course of trial?” Id. at 498, 510 P.2d at 782. This
court noted that “the record, as in the present case, clearly
shows that [the defendant] was represented by counsel, was fully
aware of the nature and substance of the accusation [under
Section 15-6.4(2a)], knew what he was being prosecuted for,
postured himself as being not guilty of the accusation, was tried
as if he had pleaded not guilty, and raised no objection during
the course of trial[.]” Id. at 500, 510 P.2d at 783 (emphasis
added). Under these circumstances, Kikuchi held that, “[w]e are
of the opinion that as in the instant case where it appears from
the record that [the defendant] had sufficient notice of the
accusation and an adequate opportunity to defend himself in the
prosecution he has suffered no prejudice.” Id.
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C.
In his Opening Brief to the ICA, Basnet alleged that
Kikuchi is distinguishable, on the basis that the defendant in
Kikuchi failed to object to the lack of an arraignment at trial,
whereas Basnet did object in the proceedings before the family
circuit court in this case. Indeed, Basnet maintained his
objection throughout trial.
An objection to the lack of an arraignment may be
analogized to an objection to the sufficiency of the charge,
since one of the purposes of an arraignment, as noted in
Marshall, is to “inform [the defendant] of the charge and obtain
his plea[.]” Marshall, 13 Haw. at 83. In the sufficiency of the
charge context, this court has applied different principles
depending on whether an objection is made before the trial court
or for the first time on appeal. The failure of the charging
instrument to state an offense is reversible error, Jendrusch, 58
Haw. at 281, 567 P.2d at 1244, and this court has held that
“[t]he failure of an accusation to charge an offense may be
raised ‘at any time during the pendency of the proceedings.’”
State v. Merino, 81 Hawai#i 198, 212, 915 P.2d 672, 686 (1996)
(quoting HRPP 12(b)(2)).
However, pursuant to the “post-conviction liberal
construction rule,” adopted by this court in State v. Motta, 66
Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983) and State v. Wells, 78
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Hawai#i 373, 381, 894 P.2d 70, 78 (1995), an appellate court will
liberally construe indictments and complaints that are challenged
for the first time on appeal. Merino, 81 Hawai#i at 212, 915 P.2d
at 686. In those circumstances, “‘this court will not reverse a
conviction based upon a defective indictment or complaint unless
the defendant can show prejudice or that the indictment or
complaint cannot within reason be construed to charge a crime.’”
Id. (quoting Wells, 78 Hawai#i at 381, 894 P.2d at 78) (brackets
omitted) (other citation omitted).
Where the defendant has timely objected to the
sufficiency of the charge, however, this rule does not apply.
See State v. Robins, 66 Haw. 312, 314, 660 P.2d 39, 41 (1983)
(stating that where the alleged deficiency in the indictment was
raised by a timely motion, “[t]he liberal construction rule laid
down in Motta” was inapplicable). Thus, where the issue was
raised at trial, the case will be dismissed without prejudice
without resort to the Motta/Wells standard.
These principles are instructive here, and lead to two
conclusions. First, because Basnet timely objected, he did not
need to show that he was prejudiced by the family court’s failure
to arraign in accordance with HRPP Rule 10(a).
Second, respectfully, the ICA erred in applying the
harmless error standard. See Basnet, 2013 WL 3094944, at *2. In
the context of sufficiency of the charging instrument, it is
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well-established that a charge that fails to provide the accused
with fair notice of the essential elements “amounts to a failure
to state an offense, and a conviction based upon it cannot be
sustained, for that would constitute a denial of due process.”
Jendrusch, 58 Haw. at 281, 567 P.2d at 1244. Thus, such errors
are not subject to harmless error analysis. Similarly, since one
of the purposes of arraignment is also to inform the defendant of
the charge, if a defendant objects at trial to the lack of an
arraignment, then the conviction “cannot be sustained[,]” because
it would correspondingly constitute a denial of due process.
Accordingly, Basnet’s conviction must be vacated, and the case
dismissed without prejudice.
VI.
We reach Basnet’s second point of error in the event
charges will be re-filed against Basnet. Basnet maintains that
the charge is legally insufficient, and alleges that the ICA
erred in its application of Mita and this court should clarify or
overrule Wheeler and Mita. This court has held that “[w]here the
statute sets forth with reasonable clarity all essential elements
of the crime intended to be punished, and fully defines the
offense in unmistakable terms readily comprehensible to persons
of common understanding, a charge drawn in the language of the
statute is sufficient.” Jendrusch, 58 Haw. at 282, 567 P.2d at
1245; see State v. Cummings, 101 Hawai#i at 143, 63 P.3d at 1113
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(2003). In the instant case, the charge did “fully define[] the
offense in unmistakable terms readily comprehensible to persons
of common understanding,” Jendrusch, 58 Haw. at 282, 567 P.2d at
1245, and thus, contrary to Basnet’s allegation, the charge was
legally sufficient.
A.
First, the charge was not required to include the
statutory definition of the term “family or household member.”
As noted, HRS § 709-906(1) provides that “‘family or household
member’ means spouses or reciprocal beneficiaries, former spouses
or reciprocal beneficiaries, persons in a dating relationship as
defined under section 586-1, persons who have a child in common,
parents, children, persons related by consanguinity, and persons
jointly residing or formerly residing in the same dwelling unit.”
Without this definition, the charge still “fully define[d] the
offense in unmistakable terms readily comprehensible to persons
of common understanding,” because the charge included the name of
Basnet’s spouse, therefore indicating specifically who was the
relevant family or household member. Where the actual name of
his wife was part of the charge, defining the term “family and
household member” as “wife” was not required to apprise Basnet of
the charges he needed to be prepared to meet.
Contrary to Basnet’s argument, this case is
distinguishable from Wheeler, where this court held that the
charge was insufficient because it failed to include the
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statutory definition of the term “operate.” Wheeler, 121 Hawai#i
at 393, 219 P.3d at 1180. That conclusion was based on the fact
that the use of the phrase “operate” in the charge did not
provide adequate notice to the defendant that the State was
required to prove that his operation of the vehicle occurred on a
public way, street, road or highway. Id. at 395, 219 P.3d at
1182. In this case, on the other hand, Basnet is not persuasive
in arguing that the term “family or household member” did not
provide him with adequate notice, absent the statutory
definition, because the term “family or household member” is
readily comprehendible to a person of common understanding. Thus
the proposed application of Wheeler is inapposite.
B.
Second, the term “physical abuse” need not be defined
in the written charge. In Kameenui, this court held that
although the statute does not specifically define the term
“physical abuse” the statute including that term, HRS § 709-
906(1) is not void for vagueness because “[p]ersons of ordinary
intelligence” would have a reasonable opportunity to know that
“physical abuse” includes “physical injury.” 69 Haw. at 623, 753
P.2d at 1252. Further, in State v. Nomura, 79 Hawai#i 413, 903
P.2d 718 (1995), the ICA noted that “[f]rom Kameenui and the
[dictionary] definition of the word ‘physical,’ it is evident
that to ‘physically abuse’ someone means to maltreat in such a
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manner as to cause injury, hurt or damage to that person’s body
. . . .” and that “a more precise definition would ‘require the
legislature to list every type of conduct covered under the
statute [which] would be counterproductive.’” Nomura, 79 Hawai#i
at 416, 903 P.2d at 721 (quoting Kameenui, 69 Haw. at 623, 753
P.2d at 1252). Thus, this court has held that the term “physical
abuse” is readily understandable, and as such, it provided
sufficient notice to Basnet as part of the charge in this case.
Finally, although the family circuit court gave an
instruction to the jury in this case regarding “family and
household member” and “physical abuse” in this case, this court
has not held that the charge must mirror the jury instructions
given in a particular case. Rather, this court has held that
“the trial court is not required to instruct the jury in the
exact words of the applicable statute but to present the jury
with an understandable instruction that aids the jury in applying
that law to the facts of the case.” State v. Sawyer, 88 Hawai#i
325, 330, 966 P.2d 637, 642 (1998) (internal quotation marks and
citation omitted).
VII.
Accordingly, the ICA’s July 19, 2013 judgment and the
family circuit court’s September 23, 2011 judgment of conviction
and sentence are vacated, and the case is remanded to the family
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circuit court to enter an order dismissing the case without
prejudice.
Steven T. Barta, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James M. Anderson,
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
31