State v. Davis
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After a trial, Defendant was convicted of operating a vehicle after license and privilege have been suspended or revoked for operating a vehicle under the influence of an intoxicant. On appeal, the intermediate court of appeals (ICA) vacated the district court’s judgment, determining that the charge against Defendant was defective for failing to allege the requisite state of mind, and remanded with instructions to dismiss the case without prejudice. Defendant filed an application for writ of certiorari, contending that the ICA gravely erred in failing to address his arguments that insufficient evidence sustained the conviction and that double jeopardy precluded retrial. The Supreme Court affirmed but on different grounds, holding (1) a reviewing court is required to address an express claim of insufficiency of the evidence prior to remaining for a new trial based on a defective charge; but (2) substantial evidence supported the conviction in this case, and therefore, double jeopardy did not preclude a retrial.
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Electronically Filed
Supreme Court
SCWC-12-0000074
26-FEB-2014
08:59 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
TERRY J. DAVIS, Petitioner/Defendant-Appellant.
SCWC-12-0000074
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000074; 1DTC-11-032838)
FEBRUARY 26, 2014
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., WITH
ACOBA, J., CONCURRING
OPINION OF THE COURT BY POLLACK, J.
Terry Davis was convicted by the District Court of the
First Circuit (district court) of operating a vehicle after
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license and privilege have been suspended or revoked for
operating a vehicle under the influence of an intoxicant, in
violation of Hawai#i Revised Statutes (HRS) §§ 291E-62(a)(1)
and/or (2) (2007).
On appeal, the Intermediate Court of Appeals (ICA)
vacated the district court judgment, concluding that the charge
against Davis for violating HRS §§ 291E-61(a)(1) and/or (2) was
defective for failing to allege the requisite state of mind.
The
ICA remanded the case to the district court with instructions to
dismiss the case without prejudice.
Davis contends in his application for writ of
certiorari (Application) that the ICA gravely erred in failing to
address whether there was sufficient evidence to sustain the
conviction and whether double jeopardy precludes retrial.
Davis
requests this court to vacate the ICA’s September 13, 2013
Judgment on Appeal, and remand the case to the district court
with instructions to reverse the conviction and bar further
prosecution based on double jeopardy.
We hold that, under article I, section 10 of the
Hawai#i Constitution, a reviewing court is required to address an
express claim of insufficiency of the evidence prior to remanding
for a new trial based on a defective charge.
Upon our review of
the sufficiency of the evidence, we conclude that substantial
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evidence supported the conviction, and therefore double jeopardy
does not preclude a retrial.
Accordingly, we affirm the ICA’s
judgment for the reasons set forth in this opinion.
I.
On January 11, 2012, the State orally charged Davis
with committing the offense of operating a vehicle after license
and privilege have been suspended or revoked for operating a
vehicle under the influence of an intoxicant (Oral Charge),1 in
violation of HRS §§ 291E-62(a)(1) and/or (2).
1
2
The Oral Charge was as follows:
On or about July 22, 2011, in the City and County of Honolulu,
State of Hawai#i, you, Mr. Davis, as a person whose license and
privilege to operate a vehicle had been revoked, suspended, or
otherwise restricted pursuant to Section 291E-62 or to part 3 of
Chapter 291E or Section 291E-61 or 291E-61.5 or to part 7 or part
14 of Chapter 286 or Section 200-81 — 291-4, 291-4.4, 291-4.5, or
291-7 of the Hawai#i Revised Statutes as those provisions were in
effect on December 31, 2001, you did operate or assume actual
physical control of any vehicle upon a public way, street, or
highway, in violation of any restrictions placed on his license
and/or while your license or privilege to operate a vehicle
remained suspended or revoked, thereby committing the offense of
operating a vehicle after license and privilege have been
suspended or revoked for operating a vehicle under the influence
of an intoxicant, in violation of Section 291E-62(a)(1) and/or
(a)(2) of the Hawai#i Revised Statutes.
You are subject to sentencing in accordance with Section 291E62b(b)(2) of the Hawai#i Revised Statutes where you have committed
the instant offense within five years of a prior conviction for an
offense under Section 291E-62 or under Section 291-1.5 of the
Hawai#i Revised Statutes as that section was in effect on December
31, 2001.
2
HRS § 291E-62 provides as follows:
(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section or to part III or
(continued...)
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Davis objected to the Oral Charge as insufficient for
not including a state of mind allegation, and requested the case
be dismissed.3
The district court denied the motion to dismiss.4
The case then proceeded to trial.
Honolulu Police
Department (HPD) Officer Kelvin Hayakawa (Officer Hayakawa) was
the only witness to testify.
On July 22, 2011, Officer Hayakawa responded to a motor
vehicle collision in the area of Kuala Street and Kamehameha
Highway.5
Officer Hayakawa testified that the location of the
offense on Kuala Street and Kamehameha Highway was in the City
and County of Honolulu, State of Hawai#i.
Upon his arrival,
Officer Hayakawa observed a white pickup truck and a four-door
car pulled over on the shoulder of Kamehameha Highway.
The
occupants were standing outside of their respective vehicles.
2
(...continued)
section 291E-61 or 291E-61.5, or to part VII or part XIV of
chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or
291-7 as those provisions were in effect on December 31,
2001, shall operate or assume actual physical control of any
vehicle:
(1) In violation of any restrictions placed on the person’s
license; or
(2) While the person’s license or privilege to operate a vehicle
remains suspended or revoked.
3
The State’s Complaint was filed on August 22, 2011. On September
26, 2011, the State filed an Amended Complaint. Neither the Complaint nor the
Amended Complaint included a state of mind allegation as part of the charge.
4
The Honorable Paula Devens presided.
5
The parties refer to “Kamehameha Highway” as “Kam Highway.”
4
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Davis identified himself as the driver of the pickup truck.6
Officer Hayakawa initiated a motor vehicle collision
investigation.
He found damage to the front bumper of the pickup
truck and damage to the other vehicle’s rear bumper.
The Officer
then conducted a background check on Davis’s driver’s license
status.
Officer Hayakawa did not recall whether he checked the
status of Davis’s driver’s license on the computer in his patrol
car or through dispatch, but he recalled that he was informed
that Davis’s license had been revoked.7
Officer Hayakawa issued a citation (Citation) to Davis
for “driving with a revoked license,”8 and he gathered Davis’s
personal information including his date of birth, address, and
“whatever information [he] needed for the report and the
citation.”
The Citation indicated that Davis’s name was “Terry
J. Davis,” his height and weight was 6’1” and 210 pounds, he had
brown hair and brown eyes, his date of birth, and the last four
6
During his testimony, Officer Hayakawa identified Davis in the
courtroom as the same person to whom he issued a citation on July 22, 2011.
7
Davis objected to the prosecutor’s question asking Officer
Hayakawa if he remembered the result of the background checks he performed on
Davis’s driver’s license status on hearsay and confrontation grounds. The
district court overruled the objection.
8
The “Citation for Traffic Crime(s) Arrest” (Citation) issued to
“Terry J. Davis” by Officer Hayakawa on July 22, 2011 indicated that Officer
Hayakawa cited Davis for violating HRS § 286-132 (2007), driving motor vehicle
while license revoked.
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numbers of his social security number.
The State sought to admit into evidence State’s Exhibit
1, the Judgment of Conviction and Probation Sentence for Cr. No.
06-1-0933 issued by the Circuit Court of the First Circuit
(circuit court) on March 19, 2007 (Exhibit 1 or Judgment of
Conviction), under Hawai#i Rules of Evidence (HRE) Rule 902(1)
(Supp. 2001) as a self-authenticating public document.
The
Judgment of Conviction reflected that a Terry Jay Davis had been
convicted in Count I of habitually operating a vehicle under the
influence of an intoxicant, in violation of HRS § 291E-61.5
(2007),9 and in Count II of operating a vehicle after license and
privilege have been suspended or revoked for operating a vehicle
under the influence of an intoxicant, in violation of HRS § 291E62 (2007).10
9
The circuit court had imposed a sentence of:
HRS § 291E-61.5 states, in relevant part:
(a) A person commits the offense of habitually operating a
vehicle under the influence of an intoxicant if:
(1) The person is a habitual operator of a vehicle under
the influence of an intoxicant;
. . . .
(d) For a conviction under this section, the sentence shall be
either:
(1) An indeterminate term of imprisonment of five years;
or
(2) A term of probation of five years, with conditions
to include:
(A) Mandatory revocation of license and privilege
to operate a vehicle for a period not less than
one year but not more than five years[.]
10
HRS § 291E-62 stated, in relevant part:
(continued...)
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“PROBATION: FIVE(5) YEARS AS TO CT. 1.”
As a special condition
of probation, “TERRY JAY DAVIS” was prohibited from operating a
motor vehicle throughout the period of probation.11
Davis objected to the admission of Exhibit 1, arguing,
inter alia, that it did not comport with the requirements of HRE
Rule 902(1) or 902(4).
Davis argued that Exhibit 1 lacked proper
authentication because there was no attestation with regard to
the seal, and there was no evidence that the signature was made
by a custodian authorized to make such a certification.
Davis also objected to the admission of Exhibit 1 based
on hearsay grounds with respect to “the contents of the document
itself as well as the hearsay statement that is the certification
itself.”
The State responded that Exhibit 1 was generated and
filed by the circuit court and included both the judge and
clerk’s name on the document.
Also, Exhibit 1 fell under the
hearsay exception set forth in HRE Rule 803(b)(8) (Supp. 2002)
because the document was a “public record.”
The district court admitted Exhibit 1 into evidence as
10
11
(...continued)
(b) Any person convicted of violating this section shall be
sentenced as follows:
. . . .
(C) Revocation of license and privilege to operate a
vehicle for an additional year[.]
Probation was not imposed in Count II.
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a self-authenticating document under HRE Rule 902(1) and as a
public record under HRE Rule 803(b)(8).
Davis then made a motion for judgment of acquittal,
arguing that there was insufficient evidence to establish a prima
facie case.
He argued that there was “nothing in [Exhibit 1]
related to any continued license suspension” or that indicated
“Davis’s license was suspended on the date of the incident . . .
for the offense of DUI.”
Thus, Davis maintained that the State
had not adduced any evidence to show that Davis’s license was
actually suspended at the time of the DUI offense on July 22,
2011.
The State responded that Davis was sentenced to a fiveyear probation term, and Condition 7R of the Special Conditions
of Probation (Special Condition 7R) set forth in Exhibit 1
“prohibited Davis from operating a motor vehicle throughout the
period of probation.”
The State pointed out that the probation
term started on March 19, 2007 and was scheduled to run until
March 18, 2012.
The district court denied the motion for judgment of
acquittal, finding that Special Condition 7R brought Davis
“within the scope of HRS § 291E-62 in that Davis was prohibited
from operating a motor vehicle throughout the period of
probation, and that constitute[d] a restriction on his license to
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operate a vehicle pursuant to HRS § 291E-61, for which Davis had
entered a plea of guilty” on March 19, 2007.
The defense rested without presenting evidence.
In
closing argument, the State argued that it proved beyond a
reasonable doubt that Davis was guilty of driving while his
license was suspended or revoked for operating a motor vehicle
under the influence of an intoxicant as a second offense.
Officer Hayakawa was dispatched to a motor vehicle collision
where he observed damage to Davis’s vehicle.
Davis admitted to
Officer Hayakawa that he was driving the vehicle, and he had
provided the Officer his name, date of birth, and the last four
digits of his social security number.
This information was
identical to that reflected on State’s Exhibit 1.
The State maintained that Exhibit 1 demonstrated that
Davis’s license was restricted as a term of his probation when he
was found guilty of violating HRS §§ 291E-61.5 and 291E-62.
The
State contended that Davis was aware of his probation terms, and
therefore he recklessly disregarded the requirements of his
probation by driving with a suspended or revoked license.
Davis countered that the evidence was insufficient to
prove that his license suspension remained in place on the date
of the incident on July 22, 2011.
Davis argued that there was
nothing provided by the driver’s license bureau or the
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Administrative Driver’s License Revocation Office about his
license status on the date of the incident.
There was also no
evidence that after the March 19, 2007 judgment was issued, the
terms and conditions of his probation were not modified or
changed in any way.
Additionally, Davis contended that there was no
evidence presented by the State that he actually received a copy
of the terms and conditions of probation or that he was aware of
those terms and conditions.
Davis maintained that the State did
not provide a witness to identify him as the person who appeared
in court and had his license suspended or revoked on March 19,
2007.
Davis asserted that the State failed to prove beyond a
reasonable doubt that he was aware or should have been aware that
his license was suspended or revoked, or that his license
actually was suspended or revoked on March 19, 2007.
Finally, Davis asserted that there was no testimony to
confirm that the accident that occurred on July 22, 2011 took
place on a public way, street, road, or highway, as required
under HRS § 291E-62.
In reply, the State argued that Officer Hayakawa
testified that “the location of the violation was on Kamehameha
Highway and Kuala Street, which is a public street, road, or
highway in the City and County of Honolulu, State of Hawai#i.”
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The State pointed out that the first page of Exhibit 1 contained
language stating that copies of the Judgment of Conviction were
mailed and delivered to all parties, which gave Davis notice
through the attached terms and conditions of probation that he
was restricted from driving a motor vehicle during the five years
of probation.
The State further argued that the Judgment of
Conviction could not have been executed in circuit court without
Davis’s presence.
The district court “accept[ed] [O]fficer [Hayakawa’s]
testimony regarding obtaining information relevant to [Davis’s]
identity, which [was] corroborated by State’s Exhibit 1,” and
found the officer’s testimony to have been credible.
The
district court found that the State satisfied its burden of proof
that Davis was guilty as charged.
Sentence was imposed, and the
district court judgment was filed.12
Davis timely appealed.
II.
On appeal to the ICA, Davis presented four points of
error:
1. The State failed to adduce sufficient evidence to sustain
the conviction.
2. The district court erred in admitting State’s Exhibit 1
because it was not properly certified, and therefore not
12
On that same day, the district court filed a Notice of Entry of
Judgment And/Or Order and Plea/Judgment indicating that Davis was convicted of
violating HRS §§ 291E-62(a)(1) and/or (2), (b)(1).
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self-authenticating pursuant to HRE 902(4).
3. Double jeopardy precludes a retrial on the same charge.
4. Assuming arguendo that there is sufficient evidence to
sustain the conviction, State v. Nesmith mandates a new
trial.
A.
In his first point of error, Davis argued that the
State failed to adduce sufficient evidence to sustain a
conviction under HRS § 291E-62(a)(1) because the State failed to
prove “every element of the crime charged beyond a reasonable
doubt.”
Davis presented five arguments in support of his first
point of error.
First, Davis argued that the State failed to establish
that the motor vehicle collision occurred on a public way,
street, road, or highway pursuant to the statutory definitions.
Officer Hayakawa testified that he responded to a motor vehicle
collision and observed two vehicles pulled over on the shoulder
of Kamehameha Highway.
Davis maintained that the State failed to
prove that Kamehameha Highway fell under the definition of
“public road” or “public highway” because the State did not
“establish that the area where the accident occurred was open to
the public or “publicly maintained,” or that the highway was
built, acquired, or otherwise under the jurisdiction of the
County or the State of Hawai#i.”
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Second, Davis argued the State failed to establish by
satisfactory evidence that the “Terry Jay Davis” listed as the
defendant on the Judgment of Conviction was connected to him.
Davis asserted that the evidentiary record lacked any fingerprint
evidence or physical description to link him to Exhibit 1.
Additionally, Davis argued that the State demonstrated only that
the last four digits of his social security number (SSN) matched
the SSN on State’s Exhibit 1.
He maintained that the name “Terry
Jay Davis” was not the same as “Terry J. Davis.”
However, Davis
did concede that his birth date matched the birth date of “Terry
Jay Davis” on Exhibit 1.
Third, Davis argued that even if Exhibit 1 established
prior convictions under HRS §§ 291E-61.5 and 291E-62, the State
failed to call any witnesses to attest to Davis’s presence or
identity at the March 19, 2007 hearing.
Davis pointed out that
the terms and conditions of probation attached to the Judgment of
Conviction were “unsigned, unacknowledged, and undated.”
Davis
argued that “the district court’s assumption that he must have
been present because a plea would not have been accepted, he
would not have been sentenced . . . was insufficient.”
Additionally, Davis argued that the State failed to
establish that Davis was on probation or that the terms and
conditions of probation were in effect at the time of the
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incident on July 22, 2011.
Neither HRS §§ 291E-61.5 nor 291E-62
“mandate[d] a five-year driver’s license suspension.”13
Therefore, without evidence of a specific date in which the
license revocation would become effective, any restriction on
Davis’s driver’s license “may have been completed long before
July 22, 2011” or modified by the court.
Lastly, Davis argued
that Exhibit 1 was insufficient to establish that he
intentionally, knowingly, or recklessly operated a vehicle while
his driver's license was suspended or revoked.
Fourth, Davis argued that the State failed to adduce
sufficient evidence that his driver’s license had been revoked,
suspended, or restricted pursuant to any other statutory
provision enumerated in HRS §§ 291E-62(a)(1) and/or (2).
Fifth, Davis argued that even if Exhibit 1 was properly
admitted, the State failed to adduce sufficient evidence that he
was convicted for violating HRS § 291E-62 within the requisite
probationary time period or that he was the individual sentenced
in court for a second offense of HRS § 291E-62 within a five-year
period.
Consequently, there was insufficient evidence to subject
him to sentencing under HRS § 291E-62(b)(2).
13
Under HRS § 291E-61.5, the mandatory driver’s license suspension
is for “not less than one year but not more than five years[.]” Under
HRS § 291E-62, the driver's license suspension is for “an additional year.”
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In his second point of error, Davis argued that the
district court erred in admitting Exhibit 1 into evidence because
Exhibit 1 failed to comply with the self-authentication
requirements under HRE Rule 902.
The State was required to
establish that the document was certified as correct by either
the custodian of records or a person authorized to make such a
certification.
The seal on Exhibit 1 stated as follows:
I do hereby certify that this is a full, true, and correct
copy of the original file in this office.
[Illegible Signature]
Clerk, Circuit Court, First Circuit.
Davis argued that there was “no attestation that this
[was] a seal, a public seal that [came] from an agency of the
State of Hawai#i,” and “[there was] no proof that [the] signature
[was] by the custodian or other person authorized to make
certification.”
Davis contended that the district court’s error
denied him a right to a fair trial.
Davis asserted in his third point of error that the
Double Jeopardy Clauses under article I, section 10 of the
Hawai#i Constitution and the Fifth and Fourteenth Amendments of
the United States Constitution preclude retrial because the State
failed to adduce sufficient evidence to sustain the conviction
under HRS § 291E-62(a)(1).
Double jeopardy principles barred
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retrial “even where [] the initial charging document was
defective.”
In his fourth point of error, Davis argued that even if
the ICA determined that the State did adduce sufficient evidence
to support Davis’s conviction, State v. Nesmith, 127 Hawai#i 48,
276 P.3d 617 (2012) required the ICA to vacate Davis’s conviction
and remand the matter for a new trial because the State failed to
allege the required state of mind in the Oral Charge.
B.
The State presented three arguments in its Answering
Brief.
First, the State conceded that Davis’s conviction must be
vacated and remanded for a retrial because the Oral Charge did
not explicitly inform Davis of the requisite state of mind and
because Davis made a timely pre-trial objection to the charge.
Second, the State argued that the district court did
not err or abuse its discretion in admitting Exhibit 1 because
the Judgment of Conviction was properly authenticated.
The State
pointed out that Exhibit 1 bore a seal signed and attested to by
a clerk of the circuit court.
The State asserted that Davis
failed to offer any evidence that indicated that Exhibit 1 was
not authentic.
Third, the State maintained that there was sufficient
evidence adduced at trial to establish that Davis operated his
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truck on a public highway with a revoked license, as Davis had
been previously convicted under HRS § 291E-62 within the previous
five years, and his license was revoked as a result of that
conviction.
The State argued that the section of Kamehameha Highway
where Officer Hayakawa observed Davis was a “public highway.”
Courts “are duty-bound to take ‘judicial notice’ of municipal
ordinances” which include the City and County of Honolulu Speed
Schedules established by the Department of Transportation
Services pursuant to the Revised Ordinances of Honolulu (ROH)
§ 15-7.2 (2012).
The stretch of Kamehameha Highway at the
intersection of Kuala Street where Davis’s motor vehicle
collision occurred was “[a]mong the public ways listed on page 7
of Schedule VII.”
Thus, the district court was required to take
judicial notice that the portion of Kamehameha Highway located at
the intersection of Kuala Street was a “public highway” under the
definition of “public way, street, road, or highway” in
HRS § 291E-1.
The State next argued that Exhibit 1 proved that Davis
was convicted on March 19, 2007 of violating HRS § 291E-61.5 and
HRS § 291E-62.
Whenever probation is imposed pursuant to
HRS § 291E-61.5(d)(2)(A), the probationary term is for five
years, and there is a mandatory revocation of license and
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privilege to operate a vehicle “for a period not less than one
year but not more than five years.”
The State noted that Special Condition 7R in Exhibit 1
“prohibited [Davis] from operating a motor vehicle throughout the
period of probation.”
Davis’s “five-year term of probation
continued through March 18, 2012, and Davis was found operating
his truck on July 22, 2011” in violation of the terms and
conditions of his probation.
The district court judgment
occurred less than five years after the March 19, 2007 Judgment
of Conviction, and thus subjected Davis to sentencing pursuant to
HRS § 291E-62(b)(2).
Additionally, the State argued that a sufficient
foundation existed to establish that Davis was the same person
convicted by the Judgment of Conviction.
The date of birth and
social security number that Officer Hayakawa obtained from Davis
at the time of the accident matched the information recorded on
the Judgment of Conviction.
The State contended that “Davis
adduced no evidence to contradict the reasonable inference that
he was in fact the same person who was convicted in the March 19,
2007 Judgment [of Conviction].”
C.
The ICA concluded that the Oral Charge was defective
for failing to allege the requisite mens rea, and the case should
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have been dismissed without prejudice pursuant to Nesmith, 127
Hawai#i 48, 276 P.3d 617.
State v. Davis, No. CAAP-12-0000074,
2013 WL 4102403, at *3 (App. Aug. 14, 2013) (SDO).
The ICA held that it was not necessary to reach the
sufficiency of the evidence or double jeopardy issues raised by
Davis based on its interpretation of this court’s ruling in
State v. Gonzalez, 128 Hawai#i 314, 288 P.3d 788 (2012).
The ICA
noted that “where the charge did not contain the requisite state
of mind, ‘Nesmith mandates dismissal without prejudice.’”
Davis,
2013 WL 4102403, at *2 (quoting Gonzalez, 128 Hawai#i at 324, 288
P.3d at 798) (emphasis omitted).
The ICA noted that the supreme
court reached this conclusion even though the defendant had also
challenged whether the State had “carried its burden of proof at
trial.”
Id.
The ICA also noted that the Gonzalez court reached
the evidence question “only to provide guidance for the
anticipated retrial on the same charge, and notwithstanding its
determination that critical evidence was improperly admitted.”
Id.
Consequently, “the court expected that a retrial on the
charge was likely.”
Id.
Thus, the ICA concluded: “Gonzalez
suggests that, where a charge is defective for failing to allege
the requisite mens rea, it is not necessary to reach the
questions of sufficiency of the evidence and double jeopardy.”
Id.
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The ICA ordered the district court judgment to be
vacated, and the case remanded to the district court with
instructions to dismiss the case without prejudice.
D.
In his Application to this court, Davis sets forth the
following contentions as the questions presented:
1. The ICA gravely erred in failing to address whether there
was sufficient evidence to sustain the conviction and
whether double jeopardy precludes retrial.
2. The ICA gravely erred in failing to hold that the district
court erred in admitting Exhibit 1 into evidence.
3. The ICA gravely erred in failing to hold that there was
insufficient evidence to sustain the conviction.
4. The ICA gravely erred in failing to hold that double
jeopardy precluded another trial despite State v. Nesmith.
The Application reiterates arguments that Davis made in
the Opening Brief, except as additionally noted.
In the first question presented, Davis argues that the
ICA gravely erred in failing to address whether there was
insufficient evidence to sustain a conviction against him for
violating HRS §§ 291E-62(a)(1) and/or (2) because “the reviewing
court is required to decide the sufficiency question, despite the
fact that there may be other grounds for reversal that would not
preclude retrial.”
“When a defendant challenging his conviction
on appeal contends both that the trial was infected by error and
that the evidence was constitutionally insufficient, the court
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may not . . . ignore the sufficiency claim, reverse on grounds of
trial error, and remand for retrial.”
Because the first trial
has plainly ended, Davis asserts that “retrial is foreclosed by
the Double Jeopardy Clause” notwithstanding a charging error,
because the State “failed to adduce sufficient evidence to
support the conviction in the first trial.”
In his second question presented, Davis argues that the
district court erred in admitting the Judgment of Conviction
because it was not properly certified by the State, and it was
not self-authenticating under HRE Rule 902(1).
Davis argues that
Exhibit 1 “constituted a public record that required additional
foundation under HRE [Rule] 902(4), which the State failed to
lay.”
For example, the State failed to provide evidence
“indicating that the document was certified by an authorized
custodian,” and “[t]he stamp fail[ed] to indicate that [] Exhibit
1 was certified by the custodian of records.”
Additionally, the
State failed to call a witness to properly certify and
authenticate Exhibit 1.
In the third and fourth questions presented, Davis sets
forth the same arguments that were made in the Opening Brief.
The State did not file a response to the Application.
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III.
The four questions raised in the Application will be
addressed in the order presented.
A.
The first issue raises the question of whether an
appellate court is required to review a defendant’s insufficiency
of evidence claim prior to vacating the defendant’s conviction
and remanding for a new trial based on a defective charge.
The
ICA held that Davis’s case should have been dismissed without
prejudice based on the faulty charge, but determined that it was
not required to address Davis’s argument that there was
insufficient evidence to support his conviction and that double
jeopardy therefore precluded a retrial on remand.
“We answer questions of constitutional law by
exercising our own independent judgment based on the facts of the
case.
Thus, we review questions of constitutional law under the
right/wrong standard.”
State v. Jenkins, 93 Hawai#i 87, 100, 997
P.2d 13, 26 (2000) (quotation marks and citations omitted).
1.
The double jeopardy clauses of the Fifth Amendment of
the United States Constitution and article I, section 10 of the
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Hawai#i Constitution provide that no person shall be subject for
the same offense to be twice put in jeopardy.
“Based upon these
provisions, we have long recognized” that “[d]ouble 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.”
State v. Rogan, 91 Hawai#i 405, 416, 984 P.2d
1231, 1242 (1999) (internal quotation marks and citations
omitted).
The U.S. Supreme Court first considered in detail “the
double jeopardy implications of an appellate reversal” in Ball v.
United States, 163 U.S. 662 (1896).
U.S. 1, 13 (1978).
Burks v. United States, 437
In Ball, three defendants were tried together
for murder in a jury trial.
Id. at 663.
Two defendants were
found guilty as charged in the indictment, and one defendant,
Millard F. Ball, was found not guilty.
Id. at 663-64.
On the
first appeal by the guilty defendants, the Court held that the
indictment was fatally defective and would not support a sentence
for murder, and therefore reversed the judgments against the two
defendants.
Id. at 664-65.
On remand, the trial court dismissed
the defective indictment, and a new indictment was returned
against all three defendants.
Id. at 665.
all three defendants guilty of murder.
23
The jury then found
Id. at 665-66.
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On the second appeal, the Court held that defendant
Millard’s “acquittal by the verdict of the jury could not be
deprived of its legitimate effect by the subsequent reversal by
this court of the judgment against the other defendants[.]”
at 670.
Id.
As to Millard’s acquittal, “the court could take no
other action than to order his discharge.”
Id. at 671.
The
Court held that “the verdict of acquittal was final, and could
not be reviewed, on error or otherwise, without putting him twice
in jeopardy, and thereby violating the constitution.”
Id.
As to the other two defendants who had been convicted
after the first trial, the Court held that their second trial was
not barred based on former jeopardy, as “a defendant who procures
a judgment against him upon an indictment to be set aside may be
tried anew upon the same indictment, or upon another indictment,
for the same offense of which he had been convicted.”
Id. at
672.
Subsequently in Burks, the Court distinguished between
the applicability of double jeopardy in cases setting aside
convictions based on trial errors and those setting aside
convictions based on the insufficiency of the evidence.
437 U.S. 1.
In Burks, the defendant was convicted by jury trial.
Id. at 2-3.
The defendant filed a motion for new trial, arguing
that the evidence was insufficient to support the verdict.
24
Id.
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at 3.
The district court denied the motion.
The court of
appeals reversed the defendant’s conviction based on the
insufficiency of the evidence.
Id.
However, “rather than
terminating the case against [the defendant],” the appellate
court remanded to the district court “for a determination of
whether a directed verdict of acquittal should be entered or a
new trial ordered” and indicated that the district court “should
choose the appropriate course ‘from a balancing of the
equities.’”
Id. at 4 (internal quotation marks in first
quotation omitted).
The appellate court “assumed it had the
power to order this ‘balancing’ remedy by virtue of the fact that
[the defendant] had explicitly requested a new trial.”
Id. at 5.
The Burks Court reversed the court of appeals and held that
double jeopardy “precludes a second trial once the reviewing
court has found the evidence legally insufficient,” regardless of
whether the defendant sought a new trial as a remedy.
Id. at 17-
18.
The Court explained that the “Double Jeopardy Clause
forbids a second trial for the purpose of affording the
prosecution another opportunity to supply evidence which it
failed to muster in the first proceeding.
This is central to the
objective of the prohibition against successive trials.”
11 (footnote omitted).
Id. at
“The Clause does not allow the State to
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make repeated attempts to convict an individual for an alleged
offense, since the constitutional prohibition against double
jeopardy was designed to protect an individual from being
subjected to the hazards of trial and possible conviction more
than once for an alleged offense.”
Id. (quoting Green v. United
States, 315 U.S. 184, 187 (1957)) (brackets, ellipsis, and
quotation marks omitted).
The Court reasoned that “reversal for trial error . . .
does not constitute a decision to the effect that the government
has failed to prove its case.
As such, it implies nothing with
respect to the guilt or innocence of the defendant.
Rather, it
is a determination that a defendant has been convicted through a
judicial process which is defective in some fundamental
respect[.]”
Id. at 15.
In those situations, the defendant has a
“strong interest in obtaining a fair readjudication of his [or
her] guilt free from error,” and “society maintains a valid
concern for insuring that the guilty are punished.”
Id.
However, where the defendant’s conviction is overturned
“due to a failure of proof at trial,” the prosecution has already
been “given one fair opportunity to offer whatever proof it could
assemble.”
Id. at 16.
“[S]uch an appellate reversal means that
the government’s case was so lacking that it should not have even
been submitted to the jury.”
Id.
26
The Court thus reasoned that
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because reviewing courts “afford absolute finality to a jury’s
verdict of acquittal—no matter how erroneous its decision—it is
difficult to conceive how society has any greater interest in
retrying a defendant when, on review, it is decided as a matter
of law that the jury could not properly have returned a verdict
of guilty.”
Id. at 16.
In Justices of Boston Municipal Court v. Lydon, 466
U.S. 294 (1984), the Court upheld Massachusetts’ two-tier system
in which a defendant charged with certain minor crimes has the
option of electing either a bench trial or jury trial, and if
convicted through a bench trial, has an absolute right to a trial
de novo before a jury.
Id. at 296-97.
The Court held that a
defendant who was convicted after electing a bench trial could be
retried de novo by jury “without any judicial determination of
the sufficiency of the evidence at his prior bench trial.”
at 303.
Id.
A majority of the Court found that its decision in Burks
did not “mandate[] the conclusion that a trial de novo is barred
by the Double Jeopardy Clause if the evidence presented at the
bench trial was insufficient to support a finding of guilt.”
at 306.
Id.
The Court explained that the State was not “attempting
to impose multiple punishments for a single offense” or “making
another attempt to convict [the defendant] after acquittal.”
at 307.
Id.
Rather, the State was “satisfied with the results of the
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bench trial and would have abided the results of a jury trial had
[the defendant] taken that initial course.”
Id.
Additionally,
under the two-tier system, jeopardy was not terminated through an
appellate determination that the evidence was insufficient to
support a conviction; rather, the second de novo trial was “part
of a single continuous course of judicial proceedings during
which, sooner or later, a defendant receives more—rather than
less—of the process normally extended to criminal defendants[.]”
Id. at 309 (citation omitted).
The Court further noted that the
two-tier system benefitted both defendants and the State, and did
not “constitute ‘governmental oppression of the sort against
which the Double Jeopardy Clause was intended to protect, . . .
even when a defendant convicted at the first tier claims
insufficiency of the evidence.”
Id. at 310 (quoting United
States v. Scott, 437 U.S. 82, 91 (1978).
Accordingly, double
jeopardy did not bar re-prosecution of the defendant under the
two-tier system.
Id. at 310-13.
The concurring opinion in Justices of Boston read Burks
to hold that an appellate court must review a defendant’s
sufficiency of the evidence claim before vacating and remanding
for a new trial based on a trial error.
Id. at 320-22 (Brennan,
J., concurring, with Marshall, J., joining).
The concurrence
explained that the Burks decision “is not merely an application
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of an abstract concept of continuing jeopardy,” but “derives from
perhaps the most fundamental rule in the history of double
jeopardy jurisprudence—that a verdict of acquittal cannot be
reviewed, on error or otherwise, without putting a defendant
twice in jeopardy, and thereby violating the Constitution.”
Id.
at 318 (quotation marks, brackets, ellipsis and citation omitted)
(emphasis added).
Although the majority was “correct in stating
that a prerequisite to a successful Burks claim is a ‘legal
judgment’ rendered at some point that the evidence was
insufficient,” id. at 319, the concurrence noted that “[t]he fact
that a trial has ended does not . . . complete the constitutional
inquiry.”
Id. at 321.
Rather, once it has been determined that
a trial has ended as a matter of constitutional law, the
concurrence stated that “a court considering a double jeopardy
claim must consider the separate question of whether a second
trial would violate the Constitution.”
Id.
“For example, when a
defendant challenging his conviction on appeal contends both that
the trial was infected by error and that the evidence was
constitutionally insufficient, the court may not, consistent with
the rule of [Burks], ignore the sufficiency claim, reverse on
grounds of trial error, and remand for retrial.”
(emphasis added).
Id. at 321-22
“Because the first trial has plainly ended,
‘retrial is foreclosed by the Double Jeopardy Clause if the
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evidence fails to satisfy the constitutional standard for
sufficiency.
Hence, the sufficiency issue cannot be avoided; if
retrial is to be had, the evidence must be found to be legally
sufficient . . . to sustain the jury verdict.’”
Id. (quoting
Tibbs v. Florida, 457 U.S. 31, 51 (1982) (White, J., dissenting,
joined by Brennan, Marshall, and Blackmun, JJ.)) (brackets
omitted).
Two months after Justices of Boston, the Court decided
Richardson v. United States, 468 U.S. 317 (1984).
In Richardson,
the jury acquitted the defendant of several counts but was unable
to agree as to other counts.
Id.
at 318.
The district court
declared a mistrial as to the latter counts, and set them for
retrial.
Id.
The defendant moved to bar the retrial based on
the Double Jeopardy Clause because sufficient evidence to support
a conviction on the remaining counts had not been presented by
the government during the first trial.
denied the motion.
Id.
Id.
The district court
The Richardson Court first held that the
district court’s order denying the defendant’s double jeopardy
claim was appealable under the federal approach to the collateral
order doctrine.
Id. at 321-22.
On the merits of the double jeopardy claim, the
Richardson Court determined that “[w]here, as here, there has
been only a mistrial resulting from a hung jury, Burks simply
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does not require that an appellate court rule on the sufficiency
of the evidence because retrial might be barred by the Double
Jeopardy Clause.”
Id. at 323.
The Court reconciled its decision
with Burks by stating that “the protection of the Double Jeopardy
Clause by its terms applies only if there has been some event,
such as an acquittal, which terminates the original jeopardy.”
Id. at 325 (citing Justices of Boston, 466 U.S. 294).
is not an event that terminates jeopardy.
Id.
A mistrial
The Court
reiterated, “Our holding in Burks established only that an
appellate court’s finding of insufficient evidence to convict on
appeal from a judgment of conviction is for double jeopardy
purposes, the equivalent of an acquittal; it obviously did not
establish . . . that a hung jury is the equivalent of an
acquittal.”
Id.
Thus, regardless of the sufficiency of the
evidence at a defendant’s first mistrial, the defendant has no
valid double jeopardy claim to prevent retrial.
Id. at 326.
The federal courts of appeals appear to be divided on
the question of whether Burks and Richardson require an appellate
court to review the sufficiency of the evidence before ordering a
retrial based on a trial error, “as well as on the issue of
whether sufficiency review before retrial is prudentially sound
or constitutionally required.”
161 (2d Cir. 2013).
Hoffler v. Bezio, 726 F.3d 144,
Compare Palmer v. Grammer, 863 F.2d 588, 592
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(8th Cir. 1988) (“it is well-established that Burks does not
allow an appellate court to reverse for trial error and remand
for retrial while ignoring a claim of insufficient evidence”)
(citing Justices of Boston, 466 U.S. at 321-22 (Brennan, J.,
concurring)); Vogel v. Pennsylvania, 790 F.2d 368, 376 (3d Cir.
1986) (“when a defendant raises an insufficiency of evidence
contention that the trial court finds unnecessary to address, a
court subsequently presented with a double jeopardy argument must
address and resolve that issue”); United States v. Wiles, 106
F.3d 1516, 1518 (10th Cir. 1997) (“this circuit has held that
when we reverse on appeal because of a procedural error at trial
and remand for a new trial, the prohibition against double
jeopardy requires us to address a defendant’s claim that the
evidence presented at trial on the reversed count was
insufficient”), with Foxworth v. Maloney, 515 F.3d 1, 4 (1st Cir.
2008) (adopting prudential rule requiring review of sufficiency
challenges before ordering retrial); Patterson v. Haskins, 470
F.3d 645, 659 (6th Cir. 2006) (“this court’s longstanding
prudential practice of reviewing the sufficiency of the evidence
despite reversing a conviction on other grounds was not
undermined by the Supreme Court’s decision in Richardson”);
United States v. Douglas, 874 F.2d 1145, 1149-51 (7th Cir. 1989)
(declining to hold that double jeopardy requires the court to
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review sufficiency of evidence when defendant raises the issue on
appeal, but adopting “policy . . . of routinely addressing
evidentiary sufficiency in criminal cases when a defendant
presents the issue on appeal”), abrogated on other grounds by
United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990).
At a minimum, federal courts of appeals are unanimous
in concluding that sufficiency review before ordering retrial “is
warranted . . . as a matter of prudent policy.”
F.3d at 161-62.
Hoffler, 726
For example, federal courts have observed that
“a sufficient rationale lies in a proper ‘concern for the
preservation of scarce and costly resources.’”
(quoting Douglas, 874 F.2d at 1150).
Id. at 162
“All retrials involve
duplicative efforts by judges, juries, prosecutors and
defendants, at considerable expense in time and money to all, and
in anxiety to the defendant.
If in fact insufficient evidence is
presented at a first trial, a retrial, on any basis, ordinarily
may be expected to be a wasted endeavor.”
1150.
Douglas, 874 F.2d at
See Hoffler, 726 F.3d at 162 (“[I]f a reviewing court were
to order a new trial without addressing a sufficiency challenge,
it could result in the futility of a second conviction that would
have to be reversed in a second appeal.”) (quotation marks and
citation omitted).
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2.
Consistent with the analysis in Burks and with Justice
Brennan’s concurrence in Justices of Boston, this court has
consistently examined the sufficiency of the evidence before
determining whether to remand for a new trial based on a trial
error or whether to enter a judgment of acquittal.
See State v.
Kaulia, 128 Hawai#i 479, 291 P.3d 377 (2013) (vacating conviction
and remanding for new trial based on district court’s lack of
jurisdiction to proceed to trial absent filing of an amended
complaint with correct charge, and examining sufficiency of the
evidence); State v. Getz, 131 Hawai#i 19, 313 P.3d 708 (2013)
(vacating conviction and remanding for new trial based on trial
court’s lack of specific unanimity instruction, and examining
sufficiency of the evidence); State v. Arceo, 84 Hawai#i 1, 33
n.40, 928 P.2d 843, 875 n.40 (1996) (“Because our disposition of
the present appeal is grounded in ‘trial error’ and the evidence
adduced at trial was clearly sufficient to support Arceo’s
convictions, double jeopardy concerns are not implicated by a new
trial”); State v. Balanza, 93 Hawai#i 279, 1 P.3d 281 (2000)
(reversing defendant’s conviction for promoting a dangerous drug
in the second degree and remanding the case with instructions to
enter a judgment of acquittal, where the trial court erred by not
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instructing the jury on the procuring agent defense and there was
insufficient evidence to support the conviction); State v.
Silver, 125 Hawai#i 1, 249 P.3d 1141 (2011) (examining
sufficiency of the evidence claims despite other alleged trial
errors and reversing conviction on a count for insufficiency of
the evidence); State v. Bailey, 126 Hawai#i 383, 271 P.3d 1142
(2012) (holding that circuit court abused discretion in denying
motion for mistrial because juror’s comments were not harmless
beyond a reasonable doubt, and also determining that the evidence
was sufficient to support each of the defendant’s convictions,
and accordingly remanding for a new trial).
See also State v.
Bannister, 60 Haw. 658, 594 P.2d 133 (1979) (holding that State’s
evidence was insufficient to support conviction because key
testimony was inadmissible, sua sponte addressing double jeopardy
issue, and remanding with instructions to enter a judgment of
acquittal because of insufficiency of evidence).
In State v. Malufau, 80 Hawai#i 126, 132, 906 P.2d 612,
618 (1995) (Malufau I), vacated in part 80 Hawai#i 126, 906 P.2d
612 (Malufau II), the court held that “challenges to the
sufficiency of the evidence must always be decided on appeal”
because “the Double Jeopardy Clause bars retrial of a defendant
once a reviewing court has found the evidence at trial to be
legally insufficient to support the conviction.”
35
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added) (internal quotation marks and citation omitted).
The
exception to this rule is that the prosecution is permitted to
retry the defendant on a lesser-included offense without
offending the double jeopardy clause.
Malufau II, 80 Hawai#i at
134-35, 906 P.2d at 620-21.
In Malufau I, the court vacated the defendant’s
conviction of assault in the first degree based on the circuit
court’s erroneous admission of irrelevant testimony that had a
“substantial influence” on the jury’s verdict.
132, 906 P.2d at 618.
80 Hawai#i at
The court held that because it was
vacating the conviction, it was obligated to address the
defendant’s argument regarding the sufficiency of the evidence.
Id.
The court ultimately concluded that there was insufficient
evidence to support the conviction for assault in the first
degree and that the prosecution was therefore not permitted to
retry him on that charge on remand, but could retry him on the
included offenses of assault in the second and third degree.
Id.
at 133-34, 906 P.2d at 619-20.
In State v. Kalaola, 124 Hawai#i 43, 46, 237 P.3d 1109,
1112 (2010), the defendant was found guilty by a jury of
committing the offense of failure to disperse.
On appeal, the
ICA concluded that the trial court failed to properly instruct
the jury regarding the material elements for the charged offense.
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State v. Kalaola, No. 29163, 2009 WL 1507291, at *1 (App. May 29,
2009) (SDO).
The ICA vacated the conviction based on the trial
error and remanded the case for a new trial.
Id. at *2-3.
The
only question addressed by this court on application for writ of
certiorari was whether the conviction should have been reversed
rather than remanded for a new trial because the conviction was
not supported by sufficient evidence.
Kalaola, 124 Hawai#i at
46, 237 P.3d at 1112.
This court held that sufficient evidence was presented
to establish that the defendant failed to disperse from the first
floor of the subject building, but that there was insufficient
evidence to establish that he failed to disperse from the second
floor.
Id.
Accordingly, the court held that the double jeopardy
clause of the Hawai#i Constitution did not bar retrial with
regard to his alleged failure to disperse from the first floor,
given that there was clearly sufficient evidence supporting the
conviction.
Id.
The court vacated the defendant’s conviction
and remanded for a new trial “with regard to the events that
transpired on the first floor.”
Id.
Accordingly, the basis for
this court’s acceptance of certiorari in Kalaola, to examine the
sufficiency of the evidence although it was undisputed that the
circuit court had committed a trial error, indicates that a
reviewing court finding trial error must also examine the
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defendant’s sufficiency of the evidence claim because of double
jeopardy concerns.
Moreover, in determining the sufficiency issue, the
Kalaola court definitively stated, “It is well-settled that, even
where this court finds trial error, ‘challenges to the
sufficiency of the evidence must always be decided on appeal.
. . . This is because the double jeopardy clause bars retrial of
a defendant once a reviewing court has found the evidence at
trial to be legally insufficient to support a conviction.’”14
Id.
at 59, 237 P.3d at 1125 (emphasis added) (brackets omitted)
(quoting Malufau I, 80 Hawai#i at 132, 906 P.2d at 618)
(quotation marks omitted)).
In the specific context of defective charges, in State
v. Elliott, the court reversed the defendant’s conviction for
resisting arrest upon finding that the charge was fatally
defective for failure to allege the requisite mens rea, rather
than vacating the conviction and remanding for a new trial.
Hawai#i 309, 884 P.2d 372 (1994).
14
77
The court also found that a
A defective or faulty indictment or charge is a “trial error.”
See Burks, 437 U.S. at 14 (“The reversal in Ball was therefore based not on
insufficiency of evidence but rather on trial error, i.e., failure to dismiss
a faulty indictment.”); Kalaola, 124 Hawai#i at 52, 237 P.3d at 1118 (“[T]he
double jeopardy clause . . . imposes no limitations whatever upon the power to
retry a defendant who has succeeded in getting his conviction set aside, for
reasons other than insufficiency of the evidence. As set forth below, such
reasons are typically referred to as ‘trial error.’” (Quotation marks,
brackets and citations omitted)).
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second charge against the defendant, of assault against a police
officer, was defective because it could not be reasonably
construed to allege that offense.
375-76.
Id. at 312-13, 884 P.2d at
However, the court found that the defective count
purporting to charge assault against a police officer actually
charged the lesser-included offense of assault in the third
degree, and all of the essential elements of the latter offense
were proven at trial.
Id. at 313, 884 P.2d at 376.
Thus, rather
than reflexively vacating and remanding for a new trial based on
a defective charge, the court examined the sufficiency of the
evidence and found that there was enough evidence to support the
lesser-included offense.
Because the charge was only faulty as
to the greater offense, the court remanded the case for entry of
a judgment of conviction as to the lesser included offense of
assault in the third degree and for appropriate resentencing.
Id.
Finally, this court has examined the defendant’s
sufficiency of the evidence claim prior to remand for a violation
of the speedy trial rule under Hawai#i Rules of Penal Procedure
(HRPP) Rule 48.15
In State v. Jackson, 81 Hawai#i 39, 912 P.2d 71
15
HRPP Rule 48(b)(1) (2000) generally provides that “the court
shall, on motion of the defendant, dismiss the charge, with or without
prejudice in its discretion, if trial is not commenced within 6 months” from
the date of arrest if bail is set or from the filing of the charge, whichever
(continued...)
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(1996), the court held that the trial court erred in denying the
defendant’s HRPP Rule 48 motion to dismiss.
P.2d at 83-84.
Id. at 51-52, 912
Based on this error, the court vacated the
defendant’s conviction and remanded for entry of an order
dismissing the charges against him, “with or without prejudice,
in the circuit court’s discretion.”16
86-87.
Id. at 54-55, 912 P.2d at
Despite its disposition, the court extensively examined
the defendant’s insufficiency of evidence claim and held that
“substantial evidence was presented to support [the defendant’s]
convictions of sexual assault in the second degree and sexual
assault in the fourth degree.”
Id. at 46, 912 P.2d at 78.
Justice Levinson wrote in his concurring opinion that
“[b]ecause [he] agree[d] with the majority’s holding . . . that
[the defendant’s] convictions were supported by substantial
evidence, a dismissal of the charges without prejudice and a
subsequent reinstatement of them would not compromise [the
defendant’s] constitutional right against double jeopardy.”
Id.
at 55 n.1, 912 P.2d at 87 n.1 (Levinson, J., concurring) (citing
15
(...continued)
is sooner.
16
The court explained that if an appellant demonstrates that his or
her constitutional right to a speedy trial was violated (as opposed to the
statutory right), then the appellant would be entitled to have his or her
convictions vacated and the charges dismissed with prejudice. Id. at 54, 912
P.2d at 86.
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Malufau I, 80 Hawai#i at 135, 906 P.2d at 621).
The majority
opinion did not disagree with this characterization of its
sufficiency of the evidence analysis.
The fact that the Jackson court examined the
sufficiency of the evidence prior to remanding the case to the
district court is instructive, as a motion to dismiss based on a
HRPP Rule 48 violation is similar to a motion to dismiss based on
a defective charge for omission of mens rea.
Both involve
situations where the trial court fails to dismiss a charge prior
to trial, the case then proceeds to trial, and following appeal,
the trial court is held to have erroneously denied the pretrial
motion to dismiss the charge.
3.
In this case, the ICA, after holding that Davis’s case
should have been dismissed without prejudice based on the
defective charge, held that it need not address Davis’s argument
that there was insufficient evidence to support his conviction
and that double jeopardy therefore precluded a retrial on the
same charge.
The ICA held that pursuant to Gonzalez, 128 Hawai#i
314, 288 P.3d 788, and Nesmith, 127 Hawai#i 48, 276 P.3d 617,
dismissal without prejudice is mandated where the charge failed
to allege the requisite state of mind, regardless of whether the
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defendant has also alleged that the conviction was not supported
by sufficient evidence.
However, neither Nesmith nor Gonzalez specifically
addressed the question of whether double jeopardy requires a
reviewing court to address a claim of insufficiency of evidence
when it remands for a new trial based on a separate trial error.
In Nesmith, the court held in a consolidated opinion involving
two defendants that mens rea must be alleged for a HRS § 291E61(a)(1) (2007) charge of operating a vehicle under the influence
of alcohol in an amount sufficient to impair the person’s normal
mental faculties, but not for a HRS § 291E-61(a)(3) (2007) charge
of operating a vehicle under the influence of .08 or more grams
of alcohol per two hundred ten liters of breath.
50, 276 P.3d at 619.
127 Hawai#i at
The court held that the latter (a)(3)
offense is an “absolute liability offense for which no mens rea
need be alleged or proven.”
Id. at 61, 276 P.3d at 630.
The
district court had adjudged the defendants guilty of violating
both subsections, each of which can serve as the basis for a
conviction under the statute.
Id.
The Nesmith court held that
“insofar as the (a)(3) charge was sufficient, and insofar as
neither [defendant] challenge[d] the sufficiency of the evidence
as to that basis, each’s conviction still stands.”
added).
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Subsequently in Gonzalez, the court held that an
excessive speeding charge against the defendant was defective
because it failed to allege the requisite state of mind.
Hawai#i at 315, 288 P.3d at 789.
128
As a result, the court vacated
the conviction and ordered the charge dismissed without
prejudice.
Id. at 327, 288 P.3d at 801.
The court explained,
“Because the charge here did not contain the requisite state of
mind, as the State concedes, Nesmith mandates dismissal without
prejudice.”
128 Hawai#i at 324, 288 P.3d at 798.
The Gonzalez court then addressed the defendant’s
second point of error, that “[t]he trial court erred in finding
that the State put forth a prima facie case and receiving
evidence of the laser gun speed reading because the State failed
to lay a sufficient foundation for the speed reading taken by the
laser gun.”
Id. at 316-17, 288 P.3d at 790-91.
The court
explained that it was addressing this argument “[d]ue to the
likelihood of retrial on remand” and “to prevent further error.”
Id. at 324, 288 P.3d at 798.
However, the propriety of a remand
based on a violation of double jeopardy was not directly
challenged by the defendant, apparently because of the
defendant’s contention that the trial court lacked subject matter
jurisdiction over the case because of the faulty charge.
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Most recently in State v. Apollonio, 130 Hawai#i 353,
311 P.3d 676 (2013), the court again held that the State’s
excessive speeding charge omitted the requisite state of mind,
and that the charge must therefore be dismissed without
prejudice.
Id. at 358-59, 311 P.3d at 681-82.
Consistent with
Gonzalez, the court addressed the defendant’s second argument
that the State failed to lay an adequate foundation for the
introduction of the speed reading from the laser gun, in order
“to prevent future error” “[d]ue to the likelihood of retrial.”
Id. at 359, 311 P.3d at 682.
The Apollonio defendant also did
not directly challenge the sufficiency of the evidence based on
double jeopardy principles.
State v. Wheeler, 121 Hawai#i 383,
385-86, 219 P.3d 1170, 1172-73 (2009) (affirming ICA’s decision
to vacate and remand with instructions to dismiss without
prejudice based on defective charge).
4.
This case, unlike Nesmith, Gonzalez and Apollonio,
squarely raises the issue of whether, when a defendant expressly
challenges his or her conviction based on a fatally defective
charge and based on insufficient evidence, a reviewing court may
ignore the sufficiency claim, vacate based on the defective
charge, and remand for a new trial.
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Although the federal courts are divided on the issue of
whether double jeopardy requires a reviewing court to examine a
defendant’s sufficiency of the evidence claim prior to remanding
for retrial based on a trial error, “we are not bound to give
provisions of the Hawai#i Constitution the same interpretations
as those given under the United States Constitution.”
Lessary, 75 Haw. 446, 453, 865 P.2d 150, 154 (1994).
State v.
“We have
often interpreted our double jeopardy clause to provide broader
protections than the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution where the federal
interpretation did not adequately preserve the rights and
interests sought to be protected.”
Rogan, 91 Hawai#i at 423, 984
P.2d at 1249 (citations omitted).
Hawai#i courts have been consistent in examining the
sufficiency of the evidence before determining whether to remand
for a new trial based on a trial error or whether to enter a
judgment of acquittal.
This court’s analysis has been grounded
in article I, section 10 of the Hawai#i Constitution.
In
Kalaola, the court expressly stated that even where the court
finds trial error, challenges to the sufficiency of the evidence
must always be decided on appeal because the double jeopardy
clause bars retrial of a defendant once a reviewing court has
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found the evidence at trial to be legally insufficient to support
a conviction.
124 Hawai#i at 59, 237 P.3d at 1126.
Furthermore, any other result would be in contradiction
to the purposes of the double jeopardy clause.
The double
jeopardy clause protects both defendants’ interests and societal
interests.
Rogan, 91 Hawai#i at 416, 984 P.2d at 1242.
With
respect to defendants’ interests, “multiple prosecutions
seriously disrupt a defendant’s personal life during trial and
create a potential for governmental harassment of the defendant.”
Id.
Additionally, “repeated prosecutions enhance the likelihood
that an innocent defendant may be convicted.”
Id.
On the other
hand, society has an interest in “the right to one full and fair
opportunity to prove a defendant’s guilt.”
Id. at 417, 984 P.2d
at 1243.
As explained by the Burks Court, in a case where the
defendant’s conviction is overturned based on the insufficiency
of the evidence, the prosecution has already “been given one fair
opportunity to offer whatever proof it could assemble.”
at 16.
437 U.S.
An appellate reversal based on insufficient evidence
“means that the government’s case was so lacking that it should
not have even been submitted to the jury.”
(emphasis added).
Burks, 437 U.S. at 16
“In other words, ‘a reversal on the
insufficiency of the evidence is the constitutional equivalent of
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an acquittal’ barring retrial under the Double Jeopardy Clause.”
Douglas, 874 F.2d at 1149-50 (ellipsis omitted) (quoting Webster
v. Duckworth, 767 F.2d 1206, 1214 (7th Cir. 1985)).
“[I]t is
difficult to conceive how society has any greater interest in
retrying a defendant when, on review, it is decided as a matter
of law that the jury could not properly have returned a verdict
of guilty.”
Burks, 437 U.S. at 16.
These reasons for prohibiting a second trial under the
double jeopardy clause where an appellate court finds that the
evidence adduced at trial was insufficient as a matter of law are
equally applicable in cases where there are other bases for
reversing conviction, such as a defective charge.
If double
jeopardy prohibits a second trial based on the insufficiency of
the evidence, then there is no reason that the double jeopardy
clause should permit the government a second opportunity to
supply the evidence it failed to produce in the first trial in
cases where the appellate court finds that the State’s case was
both brought upon a fatally defective charge and was insufficient
as a matter of law.
The defective charge would not have affected the
State’s “fair opportunity to offer whatever proof it could
assemble.”
See id. at 16.
In other words, “[t]his is not a case
in which the trial error leading to reversal may have prejudiced
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the prosecution.”
United States v. Marolda, 648 F.2d 623, 624
(9th Cir. 1981) (prejudicial variance between the offense as
charged in the indictment and that defined by the court’s
instructions required reversal but was not the type of trial
error that may have prejudiced prosecution, and because evidence
was insufficient at first trial, defendant’s motion to dismiss on
double jeopardy grounds should have been granted).
Accordingly,
the general rule, that “[t]he Double Jeopardy Clause forbids a
second trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in the
first proceeding,” should apply.
Burks, 437 U.S. at 11.
Therefore, if it is found that the State failed to
provide sufficient evidence and that no jury could have properly
returned a verdict of guilty, then double jeopardy should
preclude a retrial based on the defective charge.
The alternative, in which the appellate court would
remand for a second trial based on a defective charge without
reviewing the defendant’s sufficiency claim, is problematic for
several reasons.
First, if a defendant raises two points of
error, one of which is insufficiency of the evidence, then a
different result could occur depending on which error the
appellate court decided to consider first, or which error the
court decided was dispositive.
The defendant’s entitlement to
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the protections of the double jeopardy clause would then be
wholly dependent on the appellate court’s inclinations.
Second, a defendant who was acquitted would be in a
better position than a defendant who was convicted through a
trial in which the State produced insufficient evidence as a
matter of law, even though an acquittal and insufficient evidence
are essentially equivalent for constitutional purposes.
See
Lockhart v. Nelson, 488 U.S. 33, 39 (1988) (“Burks was based on
the view that an appellate court’s reversal for insufficiency of
the evidence is in effect a determination that the government’s
case against the defendant was so lacking that the trial court
should have entered a judgment of acquittal[.]”).
The acquitted
defendant would be absolutely protected from retrial by the
double jeopardy clause, while the convicted defendant would be
subject to retrial as long as there was a reversible trial error.
This difference would be based on pure fortuity, in one case the
defendant was acquitted based on the insufficiency of the
evidence and in the other case the trial court erred by
permitting the government’s case to be submitted to the jury.
Third, a defendant would be penalized because of the
State’s multiple errors.
If there was no other trial error
raised on appeal, then a defendant who had been convicted despite
insufficient evidence could not be retried because the appellate
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court must decide the insufficiency issue pursuant to Burks.
However, the defendant who raises multiple errors, including a
valid insufficiency of the evidence claim, is penalized because
the appellate court can vacate and remand for a new trial based
on the trial error and completely ignore the insufficiency claim.
Such a result is completely contrary to the purpose of
the double jeopardy clause, “to protect an individual from being
subjected to the hazards of trial and possible conviction more
than once for an alleged offense.”
Burks, 437 U.S. at 11
(internal quotations and citations omitted).
The government
should not be afforded “an opportunity for the proverbial ‘second
bite at the apple,’” id. at 17, where the government’s case was
insufficient as a matter of law and should never have been
submitted to the jury, simply because the government also erred
in charging the defendant with a defective charge.
See People v.
Barrett, 1 Johns. 66, 74 (N.Y. Sup. Ct. 1806) (Livingston, J.,
dissenting) (“[S]uppose an acquittal to take place, the
prosecutor, if he be dissatisfied, and bent on conviction, has
nothing to do but to tell the court that his own indictment was
good for nothing; that it has no venue, or is deficient in other
particulars, and that, therefore, he has a right to a second
chance of convicting the prisoner[.]”).
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As stated, although federal courts disagree on whether
a sufficiency review is constitutionally required when ordering a
retrial based on a trial error, all federal courts have concluded
that sufficiency review is warranted at least minimally “as a
matter of prudent policy.”
Hoffler, 726 F.3d at 161-62.
The
long-standing federal practice of undertaking a sufficiency
review demonstrates the concern that retrials involve
“considerable expense in time and money” to all parties involved,
and “in anxiety to the defendant.”
Douglas, 874 F.2d at 1150.
“If in fact insufficient evidence [was] presented at a first
trial, a retrial, on any basis, ordinarily may be expected to be
a wasted endeavor.”
Id.
Thus, it is in the interest of the
court, juries, prosecutors, and defendants to determine on review
whether the State’s evidence was insufficient as a matter of law
before remanding for a new trial, notwithstanding the existence
of a trial error such as a faulty charge.
Accordingly, based on this court’s precedent construing
the double jeopardy clause of the Hawai#i Constitution, the
purposes of the double jeopardy clause, and policy reasons, a
reviewing court is required under article I, section 10 of the
Hawai#i Constitution to address a defendant’s express claim of
insufficiency of the evidence prior to remanding for a new trial
based on a defective charge.
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B.
The second question presented is whether the ICA
gravely erred in failing to hold that the district court
erroneously admitted Exhibit 1 into evidence as a selfauthenticating document.
Davis contends that the district court erred in
admitting Exhibit 1 because it was not properly certified as
correct by a custodian of records or a person authorized to make
such a certification, and therefore it was not selfauthenticating under HRE Rule 902(1).
Davis maintains that
pursuant to HRE Rule 902(4), Exhibit 1 constituted a “public
record” that required additional foundation for authentication,
which the State failed to provide.
Davis notes that the
certification on Exhibit 1 included an illegible signature of the
circuit court clerk, and the State failed to establish through a
witness or other evidence that the signature on Exhibit 1
belonged to a person authorized to make the certification
pursuant to HRE Rule 902(4).
HRE Rule 902 states, in relevant part:
Extrinsic evidence of authenticating as a condition
precedent to admissibility is not required with respect to
the following:
(1) Domestic public documents under seal. A document
bearing a seal purporting to be that of the United States,
or of any state, district, commonwealth, territory, or
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insular possession thereof, or the Panama Canal Zone, or the
Trust Territory of the Pacific Islands, or of a political
subdivision, department, officer, or agency thereof, and a
signature purporting to be an attestation or execution.
. . . .
(4) Certified copies of public records. A copy of an
official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually
recorded or filed in a public office, including data
compilations in any form, certified as correct by the
custodian or other person authorized to make the
certification, by certificate complying with paragraph (1),
(2), or (3) or complying with any statute or rule prescribed
by the supreme court.
(Emphases added).
Under our law, “[t]he clerks of the supreme,
intermediate appellate court, circuit, and district courts shall
have the custody of all records, books, papers, moneys, exhibits,
and other things pertaining to their respective courts.”
§ 606-4 (1993) (emphasis added).
HRS
Additionally, “[t]he clerks of
the courts of record may issue process, administer oaths, take
depositions, and perform all other duties pertaining to their
office.”
HRS § 606-8 (1993).
A clerk must also “attend and
record the proceedings at all sittings of courts of record.”
HRS
§ 606-8.
In this case, Exhibit 1 bears an impressed seal of the
circuit court in compliance with HRE Rule 902(1), and contains
the signature of the court clerk of the circuit court.
As noted,
court clerks “have the custody of all records, . . . exhibits,
and other things pertaining to their respective courts” and may
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“perform all other duties pertaining to their office.”
HRS §§ 606-4, 606-8.
In accordance with HRE Rule 902(1) and
HRS § 606-4, the court clerk of the circuit court was a
“custodian or other person authorized to make the certification”
of the Judgment of Conviction, which was filed in a public office
as required by law.
The certification affixed to Exhibit 1 states: “I do
hereby certify that this is a full, true, and correct copy of the
document on file in this office.”
The signature line of the
certification below the clerk’s signature states: “Clerk, Circuit
Court, First Circuit.”
Clearly, a duty of the clerk is to
certify copies of documents filed and retained in the clerk’s
office as full, true, and correct.
Thus, Exhibit 1 met the requirements of a selfauthenticating document under HRE Rule 902(1) and (4), based upon
the seal, certification, and attestation of the court clerk
acting as the custodian authorized to certify that Exhibit 1 was
a full, true, and correct copy of the Judgment of Conviction.
C.
In his third question, Davis contends that the ICA
gravely erred in failing to hold that there was insufficient
evidence to sustain the conviction on three grounds.
First,
Davis contends that the State failed to establish that he
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operated a vehicle on a “public way, street, or highway” because
the State did not prove that the location of the incident on the
shoulder of Kamehameha Highway was a “true location open to the
public or that the highway was built, acquired, or otherwise
under the jurisdiction of the [City and County of Honolulu] or
the State of Hawai#i.”
The City and County Of Honolulu Speed Schedules were
established by the Department of Transportation Services pursuant
to the Revised Ordinances of Honolulu § 15-7.2 (1990).17
Schedule
VII18 lists streets and portions thereof as “public ways”19
17
Although not applicable to this case, ROH § 15-7.2 provides that
“[n]o person shall drive a vehicle on a public highway or street at a speed in
excess of the following speed limit zones established or hereafter established
by ordinance of the city council.” (Emphasis added).
ROH § 15-7.2(d) establishes a speed limit of 35 miles per hour
“[o]n those streets or portions thereof described in Schedule VII attached to
the ordinance codified in this section and made part hereof . . . .”
18
Table 15.0 on page 2 of ROH “Chapter 15 Traffic Code” provides a
table that shows the corresponding schedule for each section of the traffic
note. The Editor’s Note on the bottom of page 2 states that “[t]he schedules
referred to in this table are on file with the office of the city and county
clerk and the department of transportation services, City and County of
Honolulu, and are available for examination by the general public during
reasonable hours.”
19
Under HRS § 291E-1 (2007), a “[p]ublic way, street, road, or
highway” includes:
(1) The entire width, including berm or shoulder, of every
road, alley, street, way, right of way, lane trail, highway,
or bridge;
(2) A parking lot, when any part thereof is open for use by
the public or to which the public is invited for
entertainment or business purposes;
(continued...)
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governed by the ordinance.
Among the “public ways” listed in
Schedule VII is “KAMEHAMEHA HWY., from a pt. 500’ Honolulu side
of Plantation Dr. intx. through Wahiawa Interchange to a pt. 750’
Wahiawa of Lumiaina S. intx.”
See Schedule VII.
The section of Kamehameha Highway where Officer
Hayakawa observed Davis and his pickup truck was located within
the stretch of Kamehameha Highway that intersects with Kuala
Street.
19
This portion of the street is designated as a “public
(...continued)
(3) Any bicycle lane, bicycle path, bicycle route, bikeway,
controlled-access highway, laned roadway, roadway, or
street, as defined in section 291C-1; or
(4)
Any public highway, as defined in section 264-1.
According to HRS § 264-1 (Supp. 2011), a “public highway”
includes:
(a) All roads, alleys, streets, ways, lanes, bikeways,
bridges, and all other real property highway related
interests in the State, opened, laid out, subdivided,
consolidated, and acquired and built by the government are
declared to be public highways. Public highways are of two
types:
(1) State highways, which are those lands, interests,
or other real property rights, as defined above,
having an alignment or possession of a real property
highway related interest as established by law,
subdivided and acquired in accordance with policies
and procedures of the department of transportation,
separate and exempt from any county subdivision
ordinances, and all those under the jurisdiction of
the department of transportation; and
(2) County highways, which are all other public
highways.
(Emphasis added).
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way” because it falls within the above description set forth in
Schedule VII.
A court must take judicial notice of, inter alia, the
constitutions and statutes of the United States and of every
state and all duly enacted ordinances of cities or counties of
the State of Hawai#i.
HRE Rule 202(b) (1993).
This court has
held that “courts are duty-bound to take ‘judicial notice’ of
municipal ordinances.”
State v. West, 95 Hawai#i 22, 26, 18 P.3d
884, 888 (2001); State v. Schnabel, 127 Hawai#i 432, 444, 279
P.3d 1237, 1249 (2012) (“it is universally accepted that a court
must judicially notice the public law of its own jurisdiction”
(quotation marks and citation omitted)).
taken at any stage of the proceeding.
Judicial notice may be
HRE Rule 201(f) (1993).
Accordingly, pursuant to West and Schnabel, judicial notice is
taken of the fact that the section of Kamehameha Highway where
the incident occurred in this case was on a “public highway”
pursuant to ROH § 15-7.2 and HRS § 291E-1.
Therefore, sufficient
evidence was adduced to prove that Davis operated his vehicle on
a “public way.”
Second, Davis argues that the State failed to establish
that Exhibit 1 relating to the conviction for “Terry Jay Davis”
was applicable to Davis, who was identified as “Terry J. Davis”
in the July 22, 2011 citation issued by Officer Hayakawa.
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it is contended that there was insufficient evidence to identify
Davis as the person convicted in the Judgment of Conviction.
A “[p]rior conviction may be proved by any evidence
. . . made in connection with arrest, conviction, or imprisonment
that reasonably satisfies the court that the defendant was
convicted.”
HRS § 706-666(2) (1993).
In State v. Nishi, the ICA
held that the information contained in a certified traffic
abstract, which includes the person’s name, social security
number, and birth date, “is adequate to connect a defendant with
a prior conviction.”
9 Haw. App. 516, 527, 852 P.2d 476, 482
(1993), reconsideration granted, 9 Haw. App. 660, 853 P.2d 543
(1993).
However, in that case, “[t]he State presented no
evidence of Defendant’s driver’s license number or social
security number or birth date that could be compared with
information appearing on the traffic abstract.”
App. at 528, 852 P.2d at 482.
Nishi, 9 Haw.
Accordingly, the court held that
the defendant had been erroneously sentenced as a second-time
offender because the prosecution failed to submit any evidence
beyond an identical name, connecting the defendant to the
previously convicted individual.
Id., 852 P.2d at 482-83.
Here, the Judgment of Conviction of “Terry Jay Davis”
included the final four digits of Davis’s social security number
and Davis’s date of birth.
Officer Hayakawa testified that he
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obtained Davis’s social security number and date of birth from
Davis.
The citation issued to “Terry J. Davis” by Officer
Hayakawa on July 22, 2011 indicated Davis’s date of birth, and
the last four digits of his social security number.
This
information matched the information recorded on the Judgment of
Conviction, which provided the requisite proof tying the
defendant to the previously convicted individual.20
See id., 852
P.2d at 482.
Third, Davis contends that the State failed to adduce
substantial evidence to establish that he was on probation on
July 22, 2011, and his driver's license was restricted at the
time of the motor vehicle collision on July 22, 2011.
HRS § 291E-61.5(d)(2)(A) provides that whenever
probation is imposed pursuant to a conviction under this statute,
the probation term is five years with conditions to include a
“[m]andatory revocation of license and privilege to operate a
vehicle for a period not less than one year but not more than
five years.”
The Judgment of Conviction sentenced Davis to five
years of probation as to Count 1, habitually operating a vehicle
under the influence of an intoxicant (HRS § 291E-61.5).
20
Special
Additionally, “J.” and “Jay” appear to be interchangeable
variations.
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Condition 7R provided that Davis was “[p]rohibited from operating
a motor vehicle throughout the period of probation.”
The five-
year term of probation was imposed on March 19, 2007, and
therefore probation would expire on March 18, 2012.
Davis was
found to have operated his truck on July 22, 2011.
Accordingly, the State produced substantial evidence to
show that Davis was on probation on July 22, 2011, and his
driver’s license was restricted at the time of the motor vehicle
collision on July 22, 2011, based upon his conviction for
violation of HRS § 291E-61.5.
Davis further asserts that even if the terms and
conditions of his probation restricting his driver’s license were
in effect on July 22, 2011, the State failed to adduce “any
evidence from the driver’s license bureau or from the
Administrative Driver’s License Revocation Office,” that he was
aware that his license was restricted.
Thus, without further
evidence, Davis argues that Exhibit 1 was insufficient to
establish that he “intentionally, knowingly, or recklessly”
operated a vehicle while his driver's license was revoked or
suspended on July 22, 2011.
The Judgment of Conviction specifically stated, “This
judgment has been entered and copies mailed or delivered to all.”
Additionally, a defendant is required to be present for
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imposition of sentence for a felony offense under HRPP Rule 43.
The record thus contained substantial evidence that Davis was
aware that he was prohibited from operating a motor vehicle
throughout the period of probation.
Accordingly, the State
produced sufficient evidence to establish that Davis
intentionally, knowingly, or recklessly operated a vehicle on
July 22, 2011, while his driver’s license was revoked or
suspended.
D.
In his fourth question presented, Davis contends
that the ICA gravely erred in failing to hold that double
jeopardy precluded another trial despite Nesmith.
However,
in light of our determination that the State adduced
substantial evidence to support a conviction under
HRS §§ 291E-62(a)(1) and (2), double jeopardy does not
preclude a retrial on the charge.
IV.
In conclusion, we hold that where a defendant expressly
claims both a charging error and insufficient evidence to support
the conviction, the reviewing court is required under article I,
section 10 of the Hawai#i Constitution to examine the sufficiency
of the evidence claim before vacating the conviction and
remanding for a new trial based on the charging error.
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case, we conclude that the State did adduce substantial evidence
to support the district court judgment.
Accordingly, we affirm
the ICA’s September 10, 2013 Judgment on Appeal, but for the
reasons stated.
John M. Tonaki and
Taryn R. Tomasa
for petitioner
/s/ Mark E. Recktenwald
Keith M. Kaneshiro and
Brian R. Vincent
for respondent
/s/ Sabrina S. McKenna
/s/ Paula A. Nakayama
/s/ Richard W. Pollack
62
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