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State v. Deedy

Supreme Court of Hawaii

December 14, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
CHRISTOPHER DEEDY, Petitioner/Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-15-0000440; CR. NO. 11-1-1647)

          THOMAS M. OTAKE AND DAVIS L. LIVINGSTON FOR PETITIONER

          DONN FUDO FOR RESPONDENT

          RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING

          OPINION

          POLLACK, J.

         This is 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.

         I. FACTS AND PROCEDURAL HISTORY

         In the 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.

         A second trial was conducted a year later.[1] 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.

         On 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.

         The 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.

         II. ARGUMENTS ON APPEAL

         Deedy 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.

         III. STANDARDS OF REVIEW

         A. Double Jeopardy

         Whether 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 (1995)).

         B. Statutory Construction

         Statutory 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)).

         C. Moriwake Analysis

         A trial 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) .

         D. Supremacy Clause Immunity

         "Supremacy 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) .

         IV. DISCUSSION

         A. Waiver and Forfeiture

         As a 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).[2] 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).

         HRPP 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 retrial.

         Further 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.

         B. Double Jeopardy Principles Under the State and Federal Constitutions

         Deedy 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.[3] 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 (1996)).

         Deedy 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.

         1. Quitog Abandonment of Reckless Manslaughter and the Assault Offenses

         Deedy 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).

          In 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 Cir. 1988)).

         Deedy 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.

         The 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 at 560.

         Further, 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 Degree.

Quitog, 85 Hawai'i at 132-33, 938 P.2d at 563-64 (footnote omitted).

         This 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) .

         In 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 Second requires.
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 Degree.

         Additionally, 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.

         Based 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.

         2. Acquittal

         Deedy 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.[4]

         Deedy 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 ...


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