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Deedy v. Suzuki

United States District Court, D. Hawaii

August 10, 2018

RUSSELL SUZUKI, et al., Respondents.


          Derrick K. Watson United States District Judge.


         In 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.

         Deedy 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.

         After 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.


         On 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 assault.[1]Id.

         I. Deedy's First Trial

         Deedy's 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.[2]

         During 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 Instructions).

         The 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.
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.[3]

         During 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.

         II. Deedy's Second Trial

         The 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.

         Prior 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.[4]

         At the 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. It --
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.[5]

         The 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.

         After 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.

         Deedy 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.

         III. Deedy's Interlocutory Appeal to the Hawaii Supreme Court

         Deedy 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, 2017).

         In 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).

         In 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.[6] 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 ...

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