United States District Court, D. Hawaii
ORDER (1) DENYING MOTION TO STRIKE PETITION; AND (2)
GRANTING DEEDY'S PETITION FOR WRIT OF HABEAS CORPUS UNDER
28 U.S.C. § 2241
Derrick K. Watson United States District Judge.
2013, the State tried Deedy on second-degree murder and
related firearms charges arising out of the November 2011
death of Kollin Elderts. The trial resulted in a hung jury.
In Deedy's second trial in 2014, a jury acquitted him of
second-degree murder, but deadlocked on lesser included
reckless manslaughter and assault offenses. In October 2018,
Deedy is scheduled to be retried in state circuit court for
reckless manslaughter and assault following the Hawaii
Supreme Court's December 2017 determination that the
retrial will not violate his double jeopardy rights.
now seeks a writ of habeas corpus under 28 U.S.C. §
2241. Deedy asserts that the Double Jeopardy Clause of the
United States Constitution forbids the State from trying him
for a third time because: (1) the circuit court's ruling
at the first trial that there was no evidence of recklessness
amounts to an acquittal that bars further prosecution for
reckless manslaughter or any included offenses; (2) that same
2013 ruling collaterally estops the State from re-litigating
recklessness or any included offenses; and (3) the State
abandoned reckless manslaughter and any included offenses as
theories of prosecution.
careful review of the record, arguments of counsel, and
consideration of the relevant authorities, including the
Supreme Court's decision in Evans v. Michigan,
568 U.S. 313 (2013), the circuit court's determination of
the absence of evidence of recklessness, and resulting
decision not to instruct or submit the reckless manslaughter
claim to the jury during the first trial, is an
“acquittal” for purposes of double jeopardy. The
State accordingly may not proceed with Deedy's October
2018 retrial on reckless manslaughter or any included
offenses without violating constitutional prohibitions.
Deedy's Section 2241 Petition is GRANTED.
November 5, 2011, Deedy fatally shot Kollin Elderts during an
altercation at a fast food restaurant. He was indicted by a
grand jury on November 16, 2011, and charged in a two-count
Indictment: Count 1 charged second-degree murder, in
violation of Hawaii Revised Statutes (“HRS”)
§ 707-701.5, while Count 2 charged him with using a
firearm to commit the offense charged in Count 1, in
violation of HRS § 134-21. Ex. C, Dkt. No. 1-4. The
Indictment also subjected Deedy to conviction on lesser
included offenses, such as reckless manslaughter and
Deedy's First Trial
first trial spanned July and August 2013. Because the
Indictment expressly charged lesser included offenses under
Count 1, the State was permitted to adduce evidence of such
offenses, or argue them as alternative theories of guilt. The
State, however, did neither. Instead, the State advanced a
theory that Deedy was guilty of second-degree murder, but
not of any lesser included offenses.
its opening statement, the State argued that the evidence
would support the charged offense of second-degree murder by
use of a firearm. The parties did not propose lesser included
offense instructions and, in fact, specifically objected to
instructing the jury on reckless manslaughter. Ex. D (8/13/13
Tr. at 46); Dkt. No. 1-5; Respondents' Excerpts of Record
(“ER”) at 64-140; Dkt. No. 21-3 (Proposed Jury
circuit court saw it precisely the same way:
THE COURT: Both of you asked that a manslaughter instruction
not be given. And from what I can recall of the evidence as
to that final shot, I don't think there's any
evidence to support manslaughter, anyway.
MR. FUDO: Support reckless manslaughter.
THE COURT: Yeah.
MR. FUDO: Okay.
THE COURT: I don't think so, not as to that final shot.
MR. FUDO: Not as to the lethal shot, right?
THE COURT: I'm sorry. The lethal shot. Exactly.
8/13/13 Tr. at 46. As a result, the circuit court ruled that
it would not instruct the jury on reckless manslaughter or on
any other included offense.
closing argument, the prosecution reiterated its sole theory
of guilt, urging the jury to convict Deedy of second-degree
murder and the related firearms charge. Correspondingly, the
circuit court instructed the jury only on the same two
offenses. The jury deadlocked after five days of
deliberation, and unable to reach a verdict, the circuit
court declared a mistrial.
Deedy's Second Trial
second trial, held a year later in 2014, covered sixteen
days. Although the prosecution's evidence generally
mirrored the evidence that it presented at the first trial,
the circuit court, over the parties' objections,
instructed the second jury not only on second-degree murder
under Count 1, but on reckless manslaughter (HRS §
707-702(1)(a)), first-degree assault (HRS § 707-710),
and second-degree assault (HRS § 707-711), which it
declined to do during the first trial.
to the commencement of the second trial, Deedy filed a
“Motion to Exclude Reckless Manslaughter Jury
Instruction.” See Ex. K (6/24/14 Motion), Dkt.
No. 24-1. Deedy's motion argued, in part, that even if
the circuit court determined that there was a rational basis
in the evidence that supported instructing the jury on
reckless manslaughter, double jeopardy barred it from doing
so. More specifically, Deedy asserted that by declining to
instruct the jury on reckless manslaughter during the first
trial due to the absence of evidence, the circuit court had
acquitted Deedy of that offense for double jeopardy purposes.
Ex. K at 10-12.
close of the evidence, just as they had done during the first
trial, the parties objected to submitting instructions on the
included offenses because there was no evidentiary basis to
do so under applicable state law. At the August 1, 2014
settlement of jury instructions and hearing on Deedy's
motion, the defense argued that the circuit court's prior
instructional ruling-regardless of the label or correctness
of the decision-was a resolution of some or all of the
elements of the lesser offense, which under federal law,
constituted an acquittal:
MR. OTAKE: . . . the ruling of a judge, whatever its label,
actually represents a resolution, correct or not, of some or
all of the factual elements of the offense at issue[, ] [and]
the category of acquittals include judgments by the court
that the evidence is insufficient to convict. And it
doesn't matter if the ruling was infected with error,
misunderstanding, or whatnot.
THE COURT: Is this a judgment?
MR. OTAKE: When you look at Exhibit A [the 8/13/13 Tr.] --
the point of those cases is it doesn't matter what it is.
THE COURT: It's not a legal judgment, I mean, in the
sense of a piece of paper saying this is the judgment.
MR. OTAKE: It's not. And -- but it does -- the point is
it's a finding.
So following a lengthy first trial the Court found that there
wasn't any evidence to support reckless manslaughter, and
that finding was, in essence, saying that there was not
evidence to support a conviction for reckless manslaughter.
And as the United States Supreme Court says, it doesn't
matter what you call it. If there's a finding like that,
for double jeopardy purposes it's an acquittal. And so --
and it doesn't matter if the Court --you know, it
doesn't matter. What matters is that for double jeopardy
purposes the State doesn't get another try to do that.
8/1/14 Tr. at 10-12. While the State disagreed with
Deedy's double jeopardy conclusions, it concurred with
the defense that the evidence again did not support giving
the lesser included instruction: “just as in last year,
we maintain that same position that there's not a
rational basis in the evidence to support the giving of the
manslaughter instruction.” 8/1/14 Tr. at 23.
Demonstrating that conviction, the State, in its closing
argument, urged the second jury to convict Deedy of murder in
the second degree, and not on any of the included offenses,
because the evidence did not support those offenses under
Count I. Ex. I (8/5/14 Tr. at 49-79), Dkt. No. 1-10; Ex. J
(8/5/14 Tr. at 150-81), Ex. 1-11.
circuit court nonetheless denied Deedy's motion,
concluding that its decision during the first trial was not
tantamount to an acquittal because the court did not
determine Deedy's “guilt or innocence.”
8/1/14 Tr. at 27. The circuit court attempted to explain its
reasoning in the following manner-
After the first trial, the Court apparently said that it
didn't think there was evidence to support a manslaughter
instruction, in other words, that there was insufficient
evidence to clearly require a lesser instruction, under this
Court's interpretation of what a rational basis may
require. Hence, this represented an evaluation based upon the
rational basis test not a resolution or determination of
guilt or innocence or the existence of any given element.
8/1/14 Tr. at 26-27. The circuit court also overruled the
parties' objections, and concluded that, this time
around, there was a rational basis in the evidence to give
jury instructions on reckless manslaughter and the assault
offenses, and it did so. 8/1/14 Tr. at 29; 39-45.
deliberating for six days, the jury acquitted Deedy of
second-degree murder, but was deadlocked on all of the lesser
included offenses. The circuit court thereafter entered a not
guilty verdict on the second-degree murder charge and
concluded that Deedy could be retried on the lesser included
offenses on which the second jury hung.
filed several motions to dismiss on November 26, 2014,
specifically raising the federal constitutional claims at
issue in this Petition, along with several additional state
law claims. Following a hearing, the circuit court denied his
motions in an April 24, 2015 minute order, Ex. G (4/24/15
Cir. Ct. Minute Order), Dkt. No. 1-8, and in a May 19, 2015
order that addressed Deedy's federal claims. Ex. H
(5/19/15 Cir. Ct. Order), Dkt. No. 1-9.
Deedy's Interlocutory Appeal to the Hawaii Supreme
filed an interlocutory appeal from the circuit court's
orders denying his motions to dismiss, which was transferred
to the Hawaii Supreme Court. Ex. O, Dkt. No. 24-5. In that
appeal, Deedy raised federal double jeopardy claims along
with other claims he does not pursue in his Petition,
including those based on state constitutional and statutory
provisions. The Hawaii Supreme Court, in a 4-1 decision,
affirmed the circuit court's rulings and held that the
State was not barred from further retrial on reckless
manslaughter and the included assault offenses. State v.
Deedy, 141 Hawai‘i 208, 407 P.3d 164 (Dec. 14,
doing so, the majority rejected Deedy's acquittal
argument based, in part, upon its characterization of the
circuit court's ruling as “procedural in nature,
” and ultimately determined that “a trial
court's ruling on whether to issue jury instructions on
lesser included offenses does not constitute an acquittal for
double jeopardy purposes.” 141 Hawai‘i at 220,
407 P.3d at 176 (citing Evans, 568 U.S. at 319-20)
(explaining that procedural rulings that result in dismissals
are not acquittals that implicate double jeopardy concerns);
see also 141 Hawai‘i at 219, 407 P.3d at 175
(holding that “a trial court's decision resolving
the issue of whether to give or withhold certain jury
instructions is not a ‘resolution ... of some or all of
the factual elements of the offense charged' and, thus,
does not constitute an acquittal”) (quoting State
v. Dow, 72 Haw. 56, 65, 806 P.2d 402, 407 (1991))
(alteration in original) (additional citation omitted).
rejecting Deedy's claim of acquittal on the lesser
included offenses, the Hawaii Supreme Court was particularly
concerned with a perceived lack of circuit court authority,
in view of Hawaii Rule of Penal Procedure
(“HRPP”) 29, to pronounce an acquittal under the
situation presented here. It declared that:
the ‘acquittal' rule does not apply to lesser
included offenses where the greater charge has not been
resolved by the factfinder, as was the case in Deedy's
first trial. Cases decided by this court and the Supreme
Court did not involve the situation postulated by Deedy-where
the defendant is deemed to have been acquitted of included