CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000540; CASE No. 1P311-00173/REP. No. 11008255).
Brandon H. Ito for petitioner.
James S. Tabe and Craig W. Jerome for respondent.
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., WITH ACOBA, J., DISSENTING, WITH WHOM POLLACK, J., JOINS.
Petitioner/Plaintiff-Appellant State of Hawai'i (State) asks us to consider whether its complaint against Respondent/Defendant-Appellee Marianne L. Codiamat (Codiamat) provided sufficient notice to Codiamat of the charged offense to meet the constitutional requirements of due process. The State's complaint charged Codiamat with harassment, in violation of Hawai'i Revised Statutes (HRS) § 711-1106 (1) (a) (Supp. 2010).Before the commencement of trial, the District Court of the First Circuit (district court) granted Codiamat's motion to dismiss the State's complaint on the ground that it left the defendant unsure of what offense was charged because it was pleaded in the disjunctive using the conjunction "or."
On application for writ of certiorari to this court, the State argues: (1) that the Intermediate Court of Appeals (ICA) erred in affirming the dismissal because the State did not charge non-synonymous alternative means disjunctively; (2) that the ICA's dismissal is inconsistent with Hawai'i precedent allowing some use of the disjunctive in charging documents; and (3) that Hawai'i precedent limiting the use of disjunctive charging should be overturned.
We hold that the complaint in this case met due process requirements, regardless of whether one concludes that the disjunctively charged acts were synonymous or non-synonymous. Therefore, it is unnecessary for us to reach the question of whether the acts charged disjunctively were synonymous. The acts charged disjunctively were contained within a single subsection of a statute and were reasonably related so that the complaint sufficiently apprised the defendant of the nature of the charged acts and allowed the defendant to prepare a defense.
We vacate the judgment of the ICA affirming the district court's notice of entry of judgment and/or order and remand this case to the district court for further proceedings.
On January 24, 2011, the State charged Codiamat with harassment in violation of HRS § 711-1106(1) (a) . The complaint stated:
On or about the 6th day of January, 2011, in the City and County of Honolulu, State of Hawaii, MARIANNE L. CODIAMAT, with intent to harass, annoy, or alarm [Complainant], did strike, shove, kick, or otherwise touch [Complainant] in an offensive manner or subject [Complainant] to offensive physical contact, thereby committing the offense of Harassment, in violation of Section 711-1106(1)(a) of the Hawaii Revised Statutes.
On June 15, 2011, at a pretrial hearing, Codiamat orally moved to dismiss the complaint based on State v. McCarthy, No. 29701, 2010 WL 3433722 (App. Aug. 31, 2010) (mem. op.), arguing that the disjunctive wording in the complaint made it difficult to prepare a defense. Over the State's objection, the district court granted Codiamat's motion and dismissed the complaint without prejudice.
On appeal to the ICA, the State argued that McCarthy only prohibits charging in the disjunctive when the acts, or the results of the acts, charged disjunctively are non-synonymous. It maintained that the acts described in Codiamat's complaint --"strike, shove, kick, or otherwise touch in an offensive manner or subject to offensive physical contact" -- are simply multiple descriptions of "an offensive touching." The State reasoned that the disjunctive charging did not deprive Codiamat of fair notice because the disjunctive was only used to link synonymous words.
In her answering brief, Codiamat argued that the reasoning in McCarthy applied here to prohibit disjunctive charging. Specifically, Codiamat argued that (1) strike, (2) shove, (3) kick, (4) otherwise touch in an offensive manner, and (5) subject to offensive physical contact each have a distinct meaning. Codiamat concluded that by charging these acts disjunctively, "[She] was not given proper notice of what she was actually being charged with doing."
The ICA affirmed the district court's judgment, concluding that "[b]ecause the charge was pleaded in the disjunctive, it did not sufficiently apprise Codiamat of what she must be prepared to meet." See State v. Codiamat, No. CAAP-11-0000540, 2012 WL 3113898, at *1 (App. July 31, 2012) (SDO). The ICA first established that "touching another person in an offensive manner" is not synonymous with "subjecting the other person to offensive physical contact." Id. at *l-2. Relying upon its earlier holding in State v. Pesentheiner, 95 Hawai'i 290, 22 P.3d 86 (App. 2001), the ICA clarified that ", subject[ing] the other person to offensive physical contact'" has a separate meaning from offensive touching, namely, "''contact with an item physically appurtenant to the body.'" Id. at *2 (quoting Pesentheiner, 95 Hawai'i at 294-95, 22 P.3d at 90-91). The ICA then cited State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), for the principal that ", [w]here a statute specifies several ways in which its violation may occur, the charge may be laid in the conjunctive but not in the disjunctive.'" Id. at *2-3 (quoting Jendrusch, 58 Haw. at 283 n.4, 567 P.2d at 1245 n.4). The ICA therefore concluded that the disjunctive phrasing in the complaint constituted a fatal defect and held that the district court did not err in dismissing the case without prejudice. Id. at *3.
Chief Judge Nakamura filed a concurring opinion in which he argued that the "Jendrusch rule cannot withstand rational scrutiny." Id. at *4 (Nakamura, C.J., concurring). He contended that charging in the conjunctive provides no greater notice to the defendant than charging in the disjunctive, explaining that "[b]ecause the State can establish the harassment offense against Codiamat by proving either of the charged alternative means of committing the offense, charging her in the disjunctive clearly provided her with fair notice of the accusation and what she was required to meet." Id. at *4. Chief Judge Nakamura opined that he believed this court should reexamine and overturn its precedent limiting the use of disjunctive pleading. Id. at *5-6.
Codiamat timely filed an application for writ of certiorari on September 7, 2012. This court accepted Codiamat's application on October 22, 2012, and oral argument was heard on November 29, 2012.
II. STANDARD OF REVIEW
A. Sufficiency of a Complaint
The issue of whether a complaint provides sufficient notice to a defendant is reviewed under the de novo, or right/wrong, standard. State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996) .
A. The complaint was sufficient to meet the requirements of due process
Hawai'i takes a nontechnical approach to pleading standards. The Sixth Amendment to the United States Constitution and article I, section 14 of the Hawai'i Constitution mandate that a "charge must be worded in a manner such that the nature and cause of the accusation could be understood by a person of common understanding." State v. Sprattling, 99 Hawai'i 312, 318, 55 P.3d 276, 282 (2002) (internal quotation marks and alterations omitted) (quoting State v. Israel, 78 Hawai'i 66, 71, 890 P.2d 303, 308 (1995)). The complaint must "inform the accused ''fully' of the nature and cause of the accusation against him or her, and sufficiently appris[e] the defendant of what he or she must be prepared to meet to defend against the charges." State v. Nesmith, 127 Hawai'i 48, 66, 276 P.3d 617, 635 (2012) (Acoba, J., concurring and dissenting).
1. Hawai'i precedent regarding disjunctive charging
Hawai'i courts have never enforced a strict rule against charging in the disjunctive. "The rule against disjunctive allegations has been modified and relaxed in Hawaii in cases of offenses which are ''constituted of one or more of several acts or which may be committed by one or more of several means or with one or more of several intents or which may produce one or more of several results.'" Territory v. Tamashiro, 37 Haw. 552, 553 (1947) (quoting Revised Laws of Hawai'i (RLH) § 10804 (1945)) .
In Jendrusch, the first modern case in which this court addressed the issue of disjunctive charging, the defendant was charged with disorderly conduct in violation of HRS § 711-1101(l). 58 Haw. at 280, 567 P.2d at 1243. The complaint charged the defendant disjunctively with violating subsection (1) (b) or subsection (1) (c) of the statute. Jendrusch, 58 Haw. at 280, 567 P.2d at 1243-44. The court held that the complaint was insufficient on other grounds. Id. at 282, 567 P.2d at 1245. But, in dicta, the court stated:
The type of conduct proscribed by subsection (1)(b) is not factually synonymous with that proscribed by subsection (1)(c). In charging the defendant in the disjunctive rather than in the conjunctive, it left the defendant uncertain as to which of the acts charged was being relied upon as the basis for the accusation against him. Where a statute specifies several ways in which its violation may occur, the charge may be laid in the conjunctive but not in the disjunctive.
Id. at 283 n.4, 567 P.2d at 1245 n.4 (citing Territory v. Lii, 39 Haw. 574 (1952)) .
Later cases clarified permissible means of charging a defendant in the alternative. In an indictment for an offense that may be committed by a variety of acts, two or more of those acts may be charged in multiple counts or conjunctively in one count. See State v. Lemalu, 72 Haw. 130, 134, 809 P.2d 442, 444 (1991) (approving of charging in several counts); see also Lii, 39 Haw. at 578-79 (approving of charging conjunctively in one count). However, the preferred method for charging an offense that may be committed in more than one way is to charge in the conjunctive/disjunctive -- alleging that the defendant committed the offense in one way and/or in another way. State v. Batson, 73 Haw. 236, 250, 831 P.2d 924, 932 (1992) (citing State v. Cabral, 8 Haw.App. 506, 510, 810 P.2d 672, 675 (1991)).
These later cases extrapolated a rule from Jendrusch: "[W]here a statute proscribes an offense that can be committed by factually alternative types of conduct, , the charge may be laid [out] in the conjunctive but not in the disjunctive.'" Batson, 73 Haw. at 249-50, 831 P.2d at 932 (first brackets added, second brackets in original) (quoting Lemalu, 72 Haw. at 134, 809 P.2d at 444); accord Jendrusch, 58 Haw. at 283 n.4, 567 P.2d at 1245 n.4. Though this court quoted the Jendrusch rule in Batson and Lemalu, we have never relied upon the rule in reaching the holding of a case.
The ICA previously construed the Jendrusch rule narrowly, to forbid disjunctive charging only where a defendant is charged with committing an offense under multiple sections of a statute. See State v. Freitas, No. 28430, 2010 WL 2862051, at *3 (App. July 22, 2010) (SDO) ("Jendrusch is inapposite because [defendant] was not charged with engaging in conduct proscribed by different sections of [the statute] . . . ."). The ICA's decision in McCarthy represented a departure from its earlier interpretation of the Jendrusch rule.
McCarthy was convicted of harassment in violation of HRS § 711-1106 (1) (b) . McCarthy, 2010 WL 3433722, at *1. On appeal, McCarthy alleged that the trial court erred in denying his motion to dismiss the complaint for lack of specificity. Id. at *l-2. McCarthy's complaint read:
On or about the 4th day of October, 2006, in the City and County of Honolulu, State of Hawaii, KIRK MCCARTHY, with intent to harass, annoy, or alarm SCOTT AKAU, did insult, taunt, or challenge SCOTT AKAU in a manner likely to provoke an immediate violent response or that would cause SCOTT AKAU to reasonably believe that KIRK MCCARTHY intended to cause bodily injury to him or another or damage to the property of SCOTT AKAU or another ....
Id. at *1 (emphasis added). Relying upon the Jendrusch rule and federal pleading standards, the ICA held that "[t]he complaint is insufficient because it charges the results of the conduct in the disjunctive ('or'), rather than in the conjunctive ('and')." Id. at *2 (emphasis added). The court noted that by charging two non-synonymous results disjunctively -- provoking a violent response car causing fear of injury -- the defendant was left uncertain as to which acts were alleged. Id. at *3. The court also recommended using the conjunctive/disjunctive ("and/or") construction established in Batson. Id. at *4.
Despite the ICA's apparent assertion that disjunctive charging of non-synonymous acts violates due process, the court itself was doubtful of this conclusion. In the final footnote of McCarthy, the ICA stated: "The case law notwithstanding, it is not clear to us that phrasing the charge in the conjunctive provides any ...