January 28, 2014
STATE OF HAWAI'I, Petitioner/Plaintiff-Appellee,
MATTHEW LOCKEY, Respondent/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000765; FC-CR. NO. 11-1-1241)
Brandon H. Ito for petitioner
Harrison Kiehm for respondent
Recktenwald, C.J., Nakayama, and McKenna, JJ., with Acoba, J., dissenting separately, with whom Pollack, J., joins
SUMMARY DISPOSITION ORDER
Petitioner/plaintiff-appellee State of Hawai'i seeks review of the Intermediate Court of Appeals's April 8, 2013 Judgment on Appeal, entered pursuant to its February 26, 2013 Summary Disposition Order. The ICA's judgment vacated the Family Court of the First Circuit's September 28, 2011 Judgment of Conviction and Sentence,  which convicted Matthew Lockey of Harassment in violation of Hawai'i Revised Statutes § 711-1106(1) (a) . On certiorari, the State contends that the ICA erred in holding that (1) the complaint did not sufficiently apprise Lockey of what he must be prepared to meet because the language was worded in the disjunctive; and (2) Lockey's untimely objection was not waived.
We recently addressed this precise issue in State v. Codiamat, ___Hawai'i___, ___P.3d___ (2013) (holding that a charge worded disjunctively in the language of the statute provides sufficient notice so long as the acts charged are contained in a single subsection of a statute and are reasonably related).
Lockey was charged under the same statute as the defendant in Codiamat, and the language of the charge was virtually identical to the language upheld as valid in Codiamat. See id. at *1. Applying the holding of Codiamat to the present case, the State's HRS § 711-1106(1) (a) charge provided Lockey with sufficient notice of what he must be prepared to meet. Accordingly, the ICA erred in vacating Lockey's judgment of conviction and sentence on the ground that the charge was pled in the disjunctive.
Because we are vacating the ICA's judgment on other grounds, we need not reach the issue of whether Lockey's untimely objection was waived.
Accordingly, we vacate the ICA's April 8, 2013 Judgment on Appeal and affirm the family court's September 28, 2011 Judgment of Conviction and Sentence.
ACOBA, J., IN WHICH POLLACK, J., JOINS
The Complaint filed by Petitioner/Plaintiff-Appellee State of Hawai'i (the State) herein charged Respondent/Defendant-Appellant Matthew Lockey (Defendant) with Harassment HRS § 711-1106(1) (a) (Supp. 2009) in that he allegedly "did strike, shove, kick, car otherwise touch [Complainant] in an offensive manner or subject [Complainant] to offensive physical contact[.]"
(Emphasis added.) Defendant's oral motion to dismiss the Complaint because it failed to provide him adequate notice of the charge was denied by the Family Court of the First Circuit (the court) at the time of arraignment.
However, as this court indicated in State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), "[i]n charging the defendant in the disjunctive rather than in the conjunctive, [the Complaint] 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." Jendrusch, 58 Haw. at 282 n.4, 567 P.2d at 1245 n.4 (citing Territory v. Lii, 39 Haw. 574, 579 (1952)) (emphases added). Indeed, "the use of the word , or' would indicate to a lay person that he or she was charged with one of the acts described in the statute, but would not indicate which one." State v. Codiamat, No. SCWC-11-0000540, ___ Hawai'i ___, ___ P.3d ___, 2013 WL 6831727, at *13 (2013) (Acoba, J., dissenting, with whom Pollack, J., joins) (emphasis in the original).
Thus, "[g]iven that , or' is most known as a disjunctive in its ordinary significance ... it signals to a lay person that he or she is in jeopardy of being convicted of the first category of conduct to the exclusion of the second, or of the second category of conduct to the exclusion of the first, without" advising the defendant "of what prohibited conduct he or she is actually on trial for and must defend against." Id. (citing HRS § 1-14) .
Nevertheless, a majority of this court in Codiamat decided that a charge similarly employing "or" was legally viable. In Codiamat, the majority stated that this court has "never relied upon the rule against charging in the disjunctive in reaching the holding of a case, " and that "Hawai'i courts have never enforced a strict rule against charging in the disjunctive." Id. at *3-4 (majority opinion). However, respectfully, "[t]his amounts to an argument for abolishing precedent, for we have clearly-established governing case law on the sufficiency of a charge, with respect to conjunctive and disjunctive language." Id. at *17 (Acoba, J., dissenting). As was noted,
In [State v. Batson, 73 Haw. 236, 831 P.2d 924 (1992)] this court held that it is sufficient "that one offense allegedly committed in two different ways be charged conjunctively in a single count[, ]" and that under these circumstances, "the disjunctive 'or' [is] subsumed within the conjunctive 'and.'" This court's conclusion in Batson followed from its holding in [State v. Lemalu, 72 Haw. 130, 809 P.2d 442 (1991)] and the ICA opinion in [State v. Cabral, 8 Haw.App. 506, 810 P.2d 672 (1991)]. Lemalu reiterated the holding from Jendrusch's footnote four, that "[p]hrasing a complaint in the disjunctive would not provide  notice as it would leave the defendant 'uncertain as to which of the acts charged was being relied upon as the basis for the accusation against him.'" In Cabral, the ICA held that "[i]n our view, the most appropriate method to allege one offense committed in two different ways is to allege in one count that the defendant committed the offense (a) in one way 'and/or' (b) in a second way. "
Id. at *14 (internal citations omitted) (emphasis in original).
Thus, the majority "revert[s] to pre-Jendrusch law, disregarding the limitations on disjunctive charging adopted by this court after Jendrusch." Id. at *16. Additionally, "[i]n reinterpreting Jendrusch, the majority contends that this court . . . ''expressed no concern as to charging [the different non-synonymous acts contained within subsection ©] disjunctively.'" Id. at *17. But, "[t]he import of Jendrusch is not simply that specific errors would result in charging disjunctively . . . but rather, 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[, ], in order to comport with due process." Id. (internal quotation marks omitted) (emphasis in original). Contrary to the majority's view, "Jendrusch did not state that it applied only to subsections in a statute . . . but unambiguously applied to the several ways in which a violation may occur." Id. (internal quotation marks omitted) (emphasis in original). For "[t]he guarantee that the accused must be informed of the nature and the cause of the accusations . . . cannot be satisfied in any other way." Id. (citing Haw. Const, art. 1, § 14) (emphases in original).
It is axiomatic that "''the principle of fundamental fairness, essential to the concept of due process of law, dictates that the defendant in a criminal action should not be relegated to a position from which he or she must speculate as to what crime he [or she] will have to meet in defense.'" State v. Israel, 78 Hawai'i 66, 71, 890 P.2d 303, 308 (1995) (quoting Kreck v. Spalding, 721 F.2d 1229, 1233 (9th Cir. 1983)) (internal brackets omitted). The majority's construction of HRS § 711-1106(1) places the defendant in the dilemma article 1, section 14 of the Hawai'i Constitution mandates must be avoided. Accordingly, I respectfully dissent and would affirm the ICA's majority opinion vacating the September 28, 2011 judgment of the family court against Defendant and remanding the case to the court with instructions to dismiss without prejudice.