FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-15-0000440;
CR. NO. 11-1-1647)
M. OTAKE AND DAVIS L. LIVINGSTON FOR PETITIONER
FUDO FOR RESPONDENT
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., WITH
NAKAYAMA, J., DISSENTING
an interlocutory appeal from the orders of the Circuit Court
of the First Circuit (circuit court) denying defendant
Christopher Deedy's motions to dismiss with prejudice the
charges against him. The motions sought to preclude a third
trial in this case based on federal and state constitutional
grounds, state statutory provisions, and the inherent power
of the trial court. We affirm.
FACTS AND PROCEDURAL HISTORY
course of their altercation on November 5, 2011, Christopher
Deedy fatally shot Kollin Elderts (the deceased) at a fast
food restaurant in Waikiki. Deedy was indicted by a grand
jury on November 16, 2011, charging him with murder in the
second degree (Hawaii Revised Statutes (HRS) §§
706-656 (1993 & Supp. 1996) and 707-701.5 (1993)) and
carrying or use of firearm in the commission of a separate
felony (HRS § 134-21 (Supp. 2006)). The first trial was
conducted from July to August 2013. At the settling of the
jury instructions, the circuit court noted that both parties
had asked that a manslaughter instruction not be given and
indicated that, from what the court recalled, it
"didn't think there was any evidence to support
manslaughter anyway." The circuit court thereafter
instructed the jury only on the charged offenses. The jury
was deadlocked and unable to reach a verdict, and the circuit
court found manifest necessity to declare a mistrial.
second trial was conducted a year later. At the close of the
evidence, the parties objected to submitting instructions on
the included offenses of reckless manslaughter, assault in
the first degree, and assault in the second degree on the
grounds that there was no evidentiary basis to instruct on
these offenses. The circuit court overruled the parties'
objection and concluded that there was a rational basis in
the evidence to give jury instructions on reckless
manslaughter and the assault offenses. After six and a half
days of deliberation, the jury acquitted Deedy of
second-degree murder. The jury was deadlocked on all of the
included offenses. The circuit court thereafter entered a not
guilty verdict on the second-degree murder count and
concluded that Deedy could be retried on the included
offenses on which the second jury was hung.
November 26, 2014, Deedy filed a motion to dismiss the case
under the United States Constitution, a motion to dismiss
under State v. Moriwake, 65 Haw. 47, 647 P.2d 705
(1982), a motion to dismiss under the Hawai'i
Constitution, and a motion to dismiss under HRS §§
701-109 to 701-111. The State opposed Deedy's dismissal
motions. After Deedy filed an omnibus reply, the circuit
court conducted a hearing on the motions. At the conclusion
of the hearing, the circuit court orally ruled against Deedy
on his motion to dismiss brought pursuant to
Moriwake and later issued a written order denying
the motion that set forth findings of facts and conclusions
of law. The circuit court, by minute order, also denied
Deedy's other dismissal motions and later issued written
orders denying these motions.
circuit court approved Deedy's request to file an
interlocutory appeal of the court's denial of Deedy's
dismissal motions. Deedy timely filed a notice of appeal, and
the appeal was transferred to this court.
ARGUMENTS ON APPEAL
contends that a third trial in his case is barred based on
multiple grounds: (1) principles of double jeopardy under the
state and federal constitutions; (2) statutory provisions
under the Hawaii Penal Code that preclude further
prosecution; (3) the circuit court's abuse of its
discretion in failing to exercise its inherent authority to
dismiss the case with prejudice; and (4) his immunity from
State prosecution under the Supremacy Clause of the federal
constitution. Deedy urges this court to vacate the circuit
court's orders, hold one or more of his constitutional or
other claims meritorious, and remand this case for entry of
dismissal with prejudice. The State counters that Deedy's
arguments are without merit and also contends that Deedy has
waived his claims by raising them in an untimely manner.
STANDARDS OF REVIEW
double jeopardy principles require the dismissal of a
criminal charge is "a question of constitutional law
that we review under the right/wrong standard of
review." State v. Deguair, 136 Hawai'i 71,
85, 358 P.3d 43, 57 (2015) (quoting State v.
Toyomura, 80 Hawai'i 8, 15, 904 P.2d 893, 900
construction "presents questions of law that are
reviewed de novo under the right/wrong standard."
State v. King, 139 Hawai'i 249, 253, 386 P.3d
886, 890 (2016) (quoting State v. Lei, 95
Hawai'i 278, 281, 21 P.3d 880, 883 (2001)).
court's application of State v. Moriwake to a
motion to dismiss an indictment is reviewed for an abuse of
discretion. See State v. Hinton, 120 Hawai'i
265, 278-80, 204 P.3d 484, 498-99 (2009).
The trial court abuses its discretion when it clearly exceeds
the bounds of reason or disregards rules or principles of law
or practice to the substantial detriment of a party litigant.
The burden of establishing abuse of discretion is on
appellant, and a strong showing is required to establish it.
State v. Deguair, 136 Hawai'i 71, 84-85, 358
P.3d 43, 56-57 (2015) (quoting Hinton, 120
Hawai'i at 273, 204 P.3d at 492) .
Supremacy Clause Immunity
Clause immunity dismissals present a mixed question of law
and fact and are reviewed de novo." Wyoming v.
Livingston, 443 F.3d 1211, 1226 (10th Cir. 2006) .
Waiver and Forfeiture
preliminary matter, the State asserts that Deedy has waived
or forfeited claims based upon his double jeopardy and
federal immunity motions because the motions were filed well
after the conclusion of the second trial. As support for its
position, the State relies upon Hawai'i Rules of Penal
Procedure (HRPP) Rule 12 (2015), which provides, inter alia,
that motions regarding "defenses and objections based on
defects in the institution of the prosecution"
must be raised prior to trial and "within 21 days after
arraignment unless the court otherwise directs." HRPP
Rule 12(b)(1), (c) (emphasis added). Failure by a party
to file pretrial motions in compliance with subsections (b)
and (c) of HRPP Rule 12 "shall constitute waiver
thereof, " subject to the court's authority to
"grant relief from the waiver." HRPP Rule 12(f).
Rule 12(b)(1), however, does not apply in this case because
the second retrial was not an "institution of [a]
prosecution." "A prosecution is commenced either
when an indictment is found or a complaint filed, or when an
arrest warrant or other process is issued, provided that such
warrant or process is executed without unreasonable
delay." HRS § 701-108(5) (1993 & Supp. 2006).
Thus, a retrial is a continuation of a prosecution that was
already instituted, State v. Mundon, 129 Hawai'i
1, 14 n.22, 292 P.3d 205, 219 n.22 (2012) (citing United
States v. Bailin, 977 F.2d 270, 276 (7th Cir. 1992)),
and HRPP Rule 12(b)(1) is accordingly not applicable to a
underscoring the rule's inapplicability is its
requirement that " [p]retrial motions and requests must
be made within 21 days after arraignment unless the court
otherwise directs." HRPP Rule 12(c). Arraignment takes
place at the commencement of a prosecution, and no new
arraignment is had after a mistrial and before a retrial.
See HRPP Rule 5(b) (2008); HRPP Rule 10 (2008). It
would therefore not be possible to comply with the HRPP Rule
12(b)(1) deadline for pretrial motions if its requirements
were imposed on motions concerning issues relating to a
retrial. Accordingly, HRPP Rule 12(b) (1) does not apply to
motions filed with respect to a retrial, and we therefore
consider the merits of all the contentions that Deedy has
asserted in his appeal.
Double Jeopardy Principles Under the State and Federal
contends that a third trial is barred by the double jeopardy
clauses of article I, section 10 of the Hawai'i
Constitution and the Fifth Amendment to the U.S.
Constitution. The double jeopardy clause of the
State and federal constitutions "forbid a second trial
for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in
the first proceeding." State v. Quitog, 85
Hawai'i 128, 140, 938 P.2d 559, 571 (1997) (quoting
Burks v. United States, 437 U.S. 1, 11 (1978)).
"Double jeopardy protects individuals against: (1) a
second prosecution for the same offense after acquittal; (2)
a second prosecution for the same offense after conviction;
and (3) multiple punishments for the same offense."
Id. at 141, 938 P.2d at 572 (quoting State v.
Ontiveros, 82 Hawai'i 446, 450, 923 P.2d 388, 392
raises three arguments to support his constitutional double
jeopardy claims: (1) the State abandoned reckless
manslaughter and the assault offenses by its trial strategy;
(2) the circuit court's ruling in the first trial with
respect to the submission of jury instructions on the
included offenses constituted an acquittal of the reckless
manslaughter and the assault offenses; and (3) even assuming
that double jeopardy has not attached, the doctrine of
collateral estoppel precludes a third trial.
Quitog Abandonment of Reckless Manslaughter and the
contends that the State abandoned the reckless manslaughter
and assault offenses and is thus barred from retrying him for
these offenses under the principles enunciated in State
v. Quitog, 85 Hawai'i 128, 938 P.2d 559 (1997).
Quitog, this court held that the double jeopardy
clause of the Hawai'i Constitution "bar[s] a retrial
of the defendant as to the originally charged offense"
if the following prerequisites are satisfied:
during final argument in a criminal prosecution for [the
originally charged offense], (1) the prosecution abandons its
initial position that the defendant is guilty as charged by
(a) expressly conceding that he is not and (b) exhorting the
jury to convict the defendant of one of several included
offense as to which the trial court has instructed the jury,
(2) the jury deadlocks by virtue of its inability to reach a
unanimous agreement regarding the particular offense, if any,
of which the defendant has been proved guilty, (3) the trial
court declares a mistrial based upon "manifest
necessity, " and (4) the prosecution could have
presented the jury with the theory that it subsequently
wishes to advance on retrial.
Quitog, 85 Hawai'i at 129-30, 938 P.2d at
560-61. Said another way, "the Hawai'i Constitution
'bars retrial for [a] charge when the government's
deliberate trial strategy'--which is completely
incompatible with another approach that it could have
pursued, but expressly chose not to--accompanies the
termination of 'the first trial . . . without the jury
passing upon that charge.'" Id. (quoting
United States v. Cavanaugh, 948 F.2d 405, 417 (8th
Cir. 1991)). This test was derived from federal courts of
appeals cases, as noted in this court's opinion in
Quitog. Id. at 148-49, 938 P.2d at 579-80
(citing Cavanaugh, 948 F.2d at 413 (concluding that
the government at trial abandoned the theory that there were
two separate criminal acts--assault and murder--because the
government presented the acts that allegedly constituted
assault as an integral part of the actual murder);
Sizemore v. Fletcher, 921 F.2d 667, 673 (6th Cir.
1990) (ruling that a second trial may be "barred by
double jeopardy" if "the first trial ended without
a verdict for reasons of the prosecution's making");
Saylor v. Cornelius, 845 F.2d 1401, 1403, 1408 (6th
maintains that all of the Quitog requirements were
met in this case: the State abandoned the initial position it
took in the indictment, which allowed for conviction of the
included offenses, by (1) conceding that the evidence it
adduced did not support finding him guilty of any included
offense and by so exhorting the second jury; (2) the second
jury deadlocked on the included offenses; (3) the circuit
court tacitly found manifest necessity and declared a
mistrial; and (4) the State could have presented the second
jury with the theories underlying the included offenses.
circumstances of Quitog are markedly different from
this case. At the outset, Quitog applies in
situations where the State "abandons its initial
position that the defendant is guilty as
charged." Quitog, 85 Hawai'i at 129,
938 P.2d at 560 (emphasis added). Deedy is essentially
attempting to apply Quitog in reverse: that is, the
State ostensibly abandons the position that the defendant
could also be guilty of the included offenses by focusing on
the charged offense and by imploring the factfinder to find
the defendant guilty as charged. Based on the clear language
of Quitog, this sort of reverse application was
never contemplated; accordingly, in cases where the State
focuses on the charged offense, the concept of abandonment
adopted by this court in Quitog does not apply, and
the State is not precluded from proceeding with a retrial of
the defendant on the included offenses of the charged
offense. See Quitog, 85 Hawai'i at 129, 938 P.2d
even assuming that the Quitog framework applies, the
facts of this case do not demonstrate abandonment of reckless
manslaughter and the assault offenses. The defendant in
Quitog was charged with attempted murder in the
second degree; however, during the State's closing
argument at trial, the deputy prosecutor stated, in pertinent
part, the following:
[BY THE DPA]: . . .
What I am about to tell you will probably surprise many, if
not all of you.
[Quitog] is charged with Attempted Murder in the
Second Degree, among other things. He is not guilty of
Attempted Murder in the Second Degree.....
Now, as I argued to you at the outset, [Quitog] is not
guilty of Attempted Murder because there was no intent
to kill. I'll admit that. The [prosecution] does not
seek a conviction of Attempted Murder in the Second Degree.
Well, let me tell you something else. He's also not
guilty of Attempted Manslaughter because Attempted
Manslaughter requires reckless conduct.
He's guilty of Assault in the First Degree.
He's guilty of intentionally or knowingly causing serious
bodily injury. . . . [D]on't convict him either of
Assault in the Second Degree or Assault in the Third Degree
because he did much more than that; . . . the injuries he
created and what was on his mind, his state of mind, was more
than recklessly; was more than substantial bodily injury; and
was more than bodily injury. That's why the
[prosecution] asks you to convict him of Assault in the First
Quitog, 85 Hawai'i at 132-33, 938 P.2d at 563-64
court determined, based on the deputy prosecutor's final
argument, that the State abandoned the charged offense of
attempted murder in the second degree. Id. at 149,
938 P.2d at 580. We reached this conclusion because the State
could have presented this theory to the original jury but
chose not to and because the trial terminated without a
determination of guilt or innocence on the charged offense
following "a deliberate, tactical decision by the
prosecution." Id. (quoting Cavanaugh,
948 F.2d at 416) .
contrast, the deputy prosecutor at the second trial did not
exhort the jury to acquit Deedy of reckless manslaughter and
the assault offenses. During the second trial, the State
explicitly discussed the possibility that the jury could
convict Deedy of an included offense if the jury found it
appropriate to do so:
You have also heard from the Court that there are other
counts you may consider if you feel it is necessary at a
certain point in your deliberations. They are Reckless
Manslaughter and Manslaughter as a Result of Extreme Mental
or Emotional Disturbance.
The state of mind for the Reckless Manslaughter is
self-explanatory. It's reckless. And you have heard the
definition of what reckless conduct is. It's reckless as
opposed to intentional and knowing, which is what Murder
The second manslaughter option relates to a situation in
which the defendant intentionally causes the death of [the
deceased], but he does so while under extreme emotional
distress. This type of manslaughter is a defense that the
defendant must prove to you. That is his burden in this case
for that defense.
. . . Other charges that the Court has given you to consider
-- at a certain point in your deliberation, if you feel that
you need to, include Assault in the First Degree, and Assault
in the Second Degree. Now, like the difference between Murder
2 and Reckless Manslaughter, the Assault charges incorporate
the intentional and reckless states of mind. Assault 1 would
be intentional, Assault 2, reckless. The difference between
the Murder/Manslaughter charges and the Assault 1, Assault 2
charges is what happens, the consequence of the action.
I urge you to carefully consider all of the instructions as
given. In doing so, you will find that there is only one
charge which is supported by the credible evidence in this
case, and that is the original charge of Murder in the Second
the jury acquitted Deedy of the charged offense in this case
unlike in Quitog, where the jury deadlocked on the
charged offense. Quitog, 85 Hawai'i at 145-46,
938 P.2d at 576-77. Thus, the resolution of this case also
does not meet Quitog's second requirement that
the factfinder deadlocks with respect to the charged offense.
Id. at 129, 938 P.2d at 560. Relatedly, the third
Quitog requirement is also not satisfied in this
case because, unlike in Quitog, where the mistrial
was declared with respect to the charged offense, the
declaration of a mistrial in this case was made only with
respect to reckless manslaughter and the assault offenses;
Deedy was acquitted of the charged offense of second-degree
murder. Id. at 135, 938 P.2d at 566. Finally, the
fourth Quitog requirement is not met because, unlike
in Quitog, the State in this case did not
"expressly conced[e]" that Deedy was not guilty of
reckless manslaughter and the assault offenses and, in fact,
"presented the [second] jury with the theory that it
subsequently wishes to advance on retrial." Id.
at 129-30, 938 P.2d at 560-61; cf. Cavanaugh, 948
F.2d at 413, 417.
on the foregoing, it cannot be said that the State abandoned
reckless manslaughter and the assault offenses. The
State's trial strategy of primarily arguing that the
evidence supports a conviction on second-degree murder does
not demonstrate, contrary to Deedy's contention, that the
State abandoned reckless manslaughter and the assault
offenses. Urging the jury to convict on the original charge
is not the type of statements or acts that the
Quitog court determined as constituting abandonment:
the State in this case did not go "out on a limb"
to take reckless manslaughter and the assault offenses
"off the table." Quitog, 85 Hawai'i at
146, 938 P.2d at 577. Thus, Quitog and its federal
counterparts do not bar a retrial on reckless manslaughter
and the included assault offenses.
next contends that, under the double jeopardy clause of the
state and federal constitutions, he may not be retried for
reckless manslaughter and the included assault offenses
because the circuit court's ruling at the first
trial--that there was no rational basis in the evidence to
support a reckless manslaughter jury instruction--constituted
an acquittal for purposes of double jeopardy.
reasons that the circuit court's finding that there was
no rational basis to support a reckless manslaughter charge
necessarily implies that the State would not have been able
to overcome a judgment of acquittal, which is governed by a
higher standard than "rational basis." Deedy argues
that this court should find the circuit court's refusal
to issue a reckless manslaughter jury instruction as
sufficient to bar a retrial on that charge. According to
Deedy, the circuit court's independent conclusion in the
first trial that the evidence did not rationally support a
reckless manslaughter instruction establishes his lack of