State v. Martin
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***NOT FOR PUBLICATION***
NO. 22980
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
_________________________________________________________________
STATE OF HAWAI#I, Plaintiff-Appellant
vs.
SOLOMON MARTIN, Defendant-Appellee
_________________________________________________________________
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NOS. 97-2160 & 97-3100)
MEMORANDUM OPINION
(By: Acoba, and Duffy, JJ.; With
Moon, C.J., Levinson, and Nakayama, JJ., Concurring)
Plaintiff-Appellant State of Hawai#i (the prosecution)
appeals from orders of the first circuit court1 (the court)
granting the motion of Defendant-Appellee Solomon Martin
(Defendant) to strike the reference to use of firearms in the
commission of a felony, Hawai#i Revised Statutes (HRS) § 134-6
(Supp. 1998) in Count IV of the complaint of Cr. No. 97-2160, and
references to the mandatory term of imprisonment for use of a
firearm in the commission of a felony, HRS § 706-660.1 (1993), in
Count I of Cr. No. 97-2160 and Counts I and II of the indictment
in Cr. No. 97-3100.
1
The Honorable John S.W. Lim presided over this matter.
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I.
In the September 4, 1997 complaint in Cr. No. 97-2160,
Defendant was charged in relevant part in Count I and Count IV as
follows:
COUNT I: On or about the 23rd day of August, 1997, in
the City and County of Honolulu, State of Hawaii, SOLOMON
MARTIN did intentionally engage in conduct which is a
substantial step in a course of conduct intended or known to
cause bodily injury to John Williams with a dangerous
instrument, to wit, a semiautomatic firearm, intending or
knowing that it was a dangerous instrument, thereby
committing the offense of Attempted Assault in the Second
Degree, in violation of Sections 705-500 and 707711(1)(d)[2] of the Hawaii Revised Statutes, and where he
had a semiautomatic firearm in his possession or threatened
its use or used the semiautomatic firearm while engaged in
the commission of this felony, whether the semiautomatic
firearm was loaded or not, and whether operable or not, he
is subject to Sentence of Imprisonment for Use of a Firearm,
Semiautomatic Firearm or Automatic Firearm in a Felony, in
accordance with Section 706-660.1 of the Hawaii Revised
Statutes.[3]
2
HRS § 707-711(1)(d) (1993) states as follows:
Assault in the second degree.
the offense of assault in the second
. . . .
(d)
The person intentionally
bodily injury to another
instrument[.]
3
(1) A person commits
degree if:
or knowingly causes
person with a dangerous
HRS § 706-660.1 states in pertinent part as follows:
Sentence of imprisonment for use of a firearm,
semiautomatic firearm, or automatic firearm in a felony.
(1) A person convicted of a felony, where the person had a
firearm in the person’s possession or threatened its use or
used the firearm while engaged in the commission of the
felony, whether the firearm was loaded or not, and whether
operable or not, may in addition to the indeterminate term
of imprisonment provided for the grade of offense be
sentenced to a mandatory minimum term of imprisonment
without possibility of parole or probation the length of
which shall be as follows:
. . . .
(d) For a class C felony -- up to three years.
The sentence of imprisonment for a felony involving the use
of a firearm as provided in this subsection shall not be
subject to the procedure for determining minimum term of
imprisonment prescribed under section 706-669; provided
further that a person who is imprisoned in a correctional
institution as provided in this subsection shall become
(continued...)
2
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. . . .
COUNT IV: On or about the 23rd day of August, 1997,
in the City and County of Honolulu, State of Hawaii, SOLOMON
MARTIN did knowingly carry on his person or have within his
immediate control or intentionally use or threaten to use a
firearm while engaged in the commission of a separate
felony, whether the firearm was loaded or not, and whether
operable or not, thereby committing the offense of Carrying,
Using or Threatening to Use a Firearm in the Commission of a
Separate Felony, in violation of Sections 134-6(a) and (e)
of the Hawaii Revised Statutes,[4] and the separate felony
is Attempted Assault in the Second Degree, in which the
elements are that Solomon Martin did intentionally engage in
conduct which is a substantial step in a course of conduct
intended or known to cause substantial bodily injury to John
Williams, in violation of Sections 705-500 and 707-711(1)(a)
3
(...continued)
subject to the parole procedure as prescribed in section
706-670 only upon the expiration of the term of mandatory
imprisonment fixed under paragraph . . . (d).
(Emphases added.)
4
HRS § 134-6(a) and (e) (Supp. 1998) states as follows:
Carrying or use of firearm in the commission of a
separate felony; place to keep firearms; loaded firearms;
penalty. (a) It shall be unlawful for a person to knowingly
carry on the person or have within the person’s immediate
control or intentionally use or threaten to use a firearm
while engaged in the commission of a separate felony,
whether the firearm was loaded or not, and whether operable
or not; provided that a person shall not be prosecuted under
this subsection where the separate felony is:
(1)
A felony offense otherwise defined by this
chapter;
(2)
The felony offense of reckless endangering in
the first degree under section 707-713;
(3)
The felony offense of terroristic threatening in
the first degree under section [707-716(1)(a)],
707-716(1)(d)]; or
(4)
The felony offenses of criminal property damage
in the first degree under section 708-820 and
criminal property damage in the second degree
under section 708-821 and the firearm is the
instrument or means by which the property damage
is caused.
. . . .
(e) Any person violating subsection (a) . . . shall be
guilty of a class A felony. Any person violating this
section by carrying or possessing a loaded firearm or by
carrying or possessing a loaded or unloaded pistol or
revolver without a license issued as provided in section
134-9 shall be guilty of a class B felony. Any person
violating this section by carrying or possessing an unloaded
firearm, other than a pistol or revolver, shall be guilty of
a class C felony.
(Emphases added.)
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of the Hawaii Revised Statutes.[5]
(Emphases added.)
In a December 18, 1997 indictment in Cr. No. 97-3100,
Defendant was charged in relevant part in Count I and Count II as
follows:
COUNT I: On or about the 23rd day of August, 1997, in
the City and County of Honolulu, State of Hawaii, SOLOMON
MARTIN did intentionally fire a firearm, an instrument that
falls within the scope of Section 706-660.1 of the Hawaii
Revised Statutes, in a manner which recklessly placed Toni
Clegg in danger of death or serious bodily injury, thereby
committing the offense of Reckless Endangering in the First
Degree, in violation of Section 707-713 of the Hawaii
Revised Statutes.
COUNT II: On or about the 23rd day of August, 1997,
in the City and County of Honolulu, State of Hawaii, SOLOMON
MARTIN did intentionally fire a firearm, an instrument that
falls within the scope of Section 706-660.1 of the Hawaii
Revised Statutes, in a manner which recklessly placed
Sunsiri Edwards in danger of death or serious bodily injury,
thereby committing the offense of Reckless Endangering in
the First Degree, in violation of Section 707-713 of the
Hawaii Revised Statutes.
The cases were consolidated for trial.
July 8, 1995.
Trial began on
During trial proceedings, Count I of the complaint
was dismissed by the court.
On July 9, before the jury was
sworn, Defendant moved to dismiss Count IV of the complaint on
the ground that in State v. Ganal, 81 Hawai#i 358, 917 P.2d 358
(1996), this court had held that HRS § 134-6(a) does not apply
when the use of a firearm is an element of the underlying
offense.
The prosecution, on the other hand, argued that the use
of a dangerous instrument was not an element of the underlying
5
HRS § 707-711(1)(a) (1993) states as follows:
Assault in the second degree. (1) A person commits
the offense of assault in the second degree if:
(a)
The person intentionally or knowingly causes
substantial bodily injury to another.
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felony, attempted assault in the second degree, HRS § 707711(1)(a), identified in Count IV.
the motion.
The court, however, granted
It dismissed the HRS § 134-6(a) charge in Count IV
on the ground that “the legislature did not intend to enhance
twice for use of one dangerous firearm” and reinstated Count I.
Trial continued, and on July 10, 1998, Defendant
indicated he would change his pleas on all of the remaining
counts in the complaint and in the indictment.
At the change of plea hearing, Defendant orally moved
to strike the reference in Count I of the complaint to the use of
the firearm in the commission of a felony, HRS § 706-660.1 in
Cr. No. 97-2160, and the same reference in Counts I and II of the
indictment in Cr. No. 97-3100.
The prosecution objected and
indicated that as to all counts as to which a firearm was
involved, the weapon involved was “a semiautomatic weapon.”6
The court deemed there was an “aggravation” of the
attempted assault and reckless endangering charges from
misdemeanors to felonies because of “the use of the firearm.”
6
HRS § 706-660.1(3) (1993) pertains to use of a semiautomatic
firearm and provides as follows:
A person convicted of a felony, where the person had a
semiautomatic firearm or automatic firearm in the person’s
possession or used or threatened its use while engaged in
the commission of the felony, whether the semiautomatic
firearm or automatic firearm was loaded or not, and whether
operable or not, shall in addition to the indeterminate term
of imprisonment provided for the grade of offense be
sentenced to a mandatory minimum term of imprisonment
without possibility of parole or probation the length of
which shall be as follows:
. . . .
(d)
For a class C felony -- five years.
5
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The court also perceived that “the State seeks under [HRS §] 706660.1 to aggravate by way of a mandatory minimum for the same use
of the firearm.”
The court granted the motion.
Thereafter, the
court accepted no-contest pleas to, among other counts, Count I
of the complaint and Counts I and II of the indictment and
sentenced Defendant on each count to concurrent five-year
probation terms.
On October 19, 1999, the court filed a written “Order
Granting Oral Motion to Dismiss Count IV in Cr. No. 97-2160 and
Oral Motion Striking Mandatory Minimum Language” with findings of
fact and conclusions of law (without delineation) (Order).
II.
On November 17, 1999, the prosecution appealed from
the Order.
On appeal, the prosecution contends the court erred,
as to the complaint, in dismissing Count IV and striking the
language referred to above from Count I, and as to the
indictment, in striking the same language from Counts I and II.
The prosecution does not challenge paragraphs 1-5, 7, and 9-16 of
the Order.
III.
Count I and Count IV of the complaint in Cr. No. 972160 appear to involve substantially the same facts.
Count I,
however, charges a violation of HRS §§ 705-500 (1993) and 707711(1)(d), attempted assault in the second degree on John
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Williams, under the circumstances where “bodily injury” was
caused “to another person with a dangerous instrument,” in this
case, a semiautomatic firearm, subjecting Defendant, as Count I
alleges, to consideration under “[HRS §] 706-660.1” for a
mandatory term of imprisonment.
Count IV charges, again, the use
of a firearm in the commission of a separate felony; this time,
under HRS § 134-6(a) and (e), the separate felony being the same
separate felony of assault in the second degree alleged in Count
I, that is, as against John Williams, except in the HRS 707711(1)(a) version under which “substantial bodily injury” is
caused “to another person.”
The court found that “[t]he conduct
involving the use of the firearm is the same for both Counts I
and IV under Criminal number 97-2160.”
designate this finding as error.
The prosecution does not
Accordingly, it is established
that Counts I and IV of the complaint are based on the same
conduct.
In moving for dismissal of Count IV, Defendant argued
that under Ganal, “HRS § 134-6 does not apply where the use of a
firearm establishes an element of the underlying felony.”
Defendant reasoned that because Count IV charged “Attempted
Assault in the Second Degree ‘with a dangerous instrument[,]’
[the firearm,] . . . [as] the underlying offense[,]” the HRS
§ 134-6 charge must “be dismissed.”
But, in Ganal, this court was concerned with the pre1993 amendment version of HRS § 134-6(a) and held that “the
originally enacted version of HRS § 134-6(a) was never intended
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to apply where the defendant’s use of a firearm establishes an
element of the underlying felony.”
at 384.
81 Hawai#i at 372, 917 P.2d
However, as the prosecution points out, Defendant was
charged under HRS § 134-6(a) as modified by the 1993 amendment.
The 1993 amendment prohibited prosecution under HRS § 134-6 where
the possession, control, threat to use, or use of a firearm was
involved in certain described felonies.
Attempted assault in the
second degree is not one of those felonies.
Accordingly, as the
prosecution argues,
the rule of expressio unius est exclusio alterius applies in
this instance. “The specificity of the legislative
enumeration in this section means that the limitations
exemption is applicable only to the offenses enumerated.”
State v. Liuafi, 1 Haw. App. 625, 637, 623 P.2d 1271, 1279
(1981). “When the legislature expresses things through a
list, the court assumes that what is not listed is
excluded.” 2A Sutherland Statutory Construction § 47.23,
at 216-17 (5th ed. 1992). “Departure from the plain and
unambiguous language of the statute cannot be justified
without a clear showing that the legislature intended some
other meaning would be given the language.” In re Tax
Appeal of Lower Mapunapuna Tenants Ass’n, 73 Haw. 63, 68,
828 P.2d 263, 266 (1992) (quoting Espaniola v. Cawdrey Mars
Joint Venture, 68 Haw. 171, 179, 707 P.2d 365, 370 (1985)).
State v. Kaakimaka, 84 Hawai#i 280, 291, 933 P.2d 617, 628,
reconsideration denied, 84 Hawai#i 496, 936 P.2d 191 (1997)
(brackets omitted).
Because the 1993 version of HRS § 134-6(a)
does not list attempted assault in the second degree as an
offense for which “a person shall not be prosecuted under [that]
subsection,” Defendant is subject to prosecution for the use of a
firearm and for the felony in which the firearm was used.
The
court therefore erred in relying upon the holding in Ganal to
dismiss Count IV.
Count IV, therefore, cannot be dismissed on
the authority of Ganal.
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As an alternative ground for sustaining the court’s
dismissal, Defendant argues on appeal that Count IV was charged
in violation of Hawai#i Rules of Penal Procedure (HRPP) Rule 7(f)
and therefore, must be dismissed.7
Defendant maintains that
Count IV “in effect attempts to amend the underlying felony of
Count I to include an additional element under 707-711(1)(a).”
Defendant points out that under Count I, attempted assault in the
second degree under HRS § 707-711(1)(d) requires proof of an
attempt to cause bodily injury to John Williams with the use of a
dangerous instrument, to wit, a semi-automatic handgun.
Under
Count IV, the underlying felony is alleged to be attempted
assault in the second degree under HRS § 707-711(1)(a), requiring
proof that Defendant attempted to cause substantial bodily injury
to John Williams.
Thus, assault in the second degree as defined
under HRS § 707-711(1)(a) requires proof different from that
required with respect to HRS § 707-711(1)(d).
Defendant did not below raise the argument that
Rule 7(f) was violated.
There is no express indication in the
record that Count IV was amended from a prior version.
Moreover,
an argument not raised below need not be considered on appeal.
See State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003)
(“As a general rule, if a party does not raise an argument at
7
HRPP Rule 7(f) states as follows:
Amendment. The court may permit a charge other than
an indictment to be amended at any time before verdict or
finding if no additional or different offense is charged and
if substantial rights of the defendant are not prejudiced.
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trial, that argument will be deemed to have been waived on
appeal[.]”); see also Hawai#i Rules of Appellate Procedure
Rule 28(b)(4) (“Points not presented in accordance with this
section will be disregarded, except that the appellate court, at
its option, may notice plain error not presented.”).
It was established by the court’s uncontested findings,
however, that the underlying conduct for attempted assault in
707-711(1)(a) upon which the violation of HRS § 134-6(a) and (e)
are premised in Count IV of Cr. No. 97-2160 is the same
assaultive episode described in Count I, as an attempted assault
under HRS § 707-711(1)(d).
convicted of both.
Defendant cannot lawfully be
As stated by this court, “[the] Double
Jeopardy [Clause] protects individuals against multiple
punishments for the same offense.”
State v. Ake, 88 Hawai#i 389,
392, 967 P.2d 221, 224 (1998).
In State v. Jumila, 87 Hawai#i 1, 950 P.2d 1201 (1998),
reversed on other grounds by State v. Brantley,8 99 Hawai#i 463,
56 P.3d 1252 (2002), both the majority and the dissent agreed
that a defendant cannot be convicted of both a HRS § 134-6(a)
violation and receive a sentence under HRS § 706-660.1 on the
underlying 134-6(a) felony offense.
The majority said that, “as
explained by the dissent, a defendant may not be convicted of an
HRS § 134-6(a) violation and receive a mandatory minimum term of
8
The plurality in Brantley held that a defendant may be convicted
of both carrying or use of a firearm in the commission of a separate felony,
and the separate felony; but did not discuss the question of whether the
double jeopardy clause barred a mandatory minimum term of imprisonment if
defendant was convicted under both HRS § 134-6(a) and HRS § 706-660.1.
10
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imprisonment on the underlying felony pursuant to HRS § 706660.1.”
Id. at 6, 950 P.2d at 1206.
The dissent pointed out
that “a problem is presented by the issue of whether double
jeopardy prohibits punishment under both HRS § 134-6(a) (carrying
or use of a firearm) and HRS § 706-660.1 (mandatory minimum
terms) when the application of both statutes is based on the same
underlying felony[.]”
Id. at 13, 950 P.2d at 1213 (Ramil, J.,
dissenting, joined by Nakayama, J.)
Applying the test in
Blockburger v. United States, 284 U.S. 299 (1932), the dissent
noted that “[u]nder Blockburger, double jeopardy prohibits
cumulative punishments unless ‘each statutory provision requires
proof of a fact which the other does not.’”
Id. (brackets
omitted) (quoting United State v. Lanzi, 933 F.2d 824 (10th Cir.
1991)).
Observing that “there is no material difference
between, on the one hand, ‘carrying’ or ‘having within one’s
immediate control’ a firearm and, on the other hand, ‘possessing’
a firearm[, b]oth HRS § 134-6(a) and HRS § 706-660.1 include
‘using’ or ‘threatening to use’ a firearm[,]” id. at 14, 950 P.2d
at 1214, the dissent decided that “it cannot be said that each
statutory provision requires proof of a fact which the other does
not[,]” id. (emphasis in original) (internal quotation marks
omitted).
It was concluded, then, that “double jeopardy
principles prevent imposition of cumulative punishments under
both HRS § 134-6(a) and HRS § 706-660.1 when the application of
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both statutes is based on the same underlying felony.”
That is the case here.
Id.
The appropriate remedy was to
“vacate the mandatory minimum term and remand for resentencing
without the mandatory minimum.”
Id.
In accordance with the
agreement of the majority and dissent in Jumila on this issue,
the court’s order in Cr. No. 97-2160 with respect to Count IV
regarding HRS § 134-6(a) and (e) is vacated with instructions to
reinstate that charge.
However, the court’s order striking the
reference to HRS § 706-660.1 in that case is affirmed.
IV.
The court perceived a “double enhancement” in Counts I
and II in Cr. No. 97-31009 in essentially the following syllogism
set forth in the Order:
(1) charging the use of a firearm
elevated the reckless endangering charge from a misdemeanor to a
felony (Paragraph 11); (2) the charging reference to 706-660.1
for use of firearm “seeks further to subject Defendant to
9
According to the prosecution’s proffer at the change of plea
hearing on July 10, 1998, Count I in Cr. No. 97-2160 involved separate
incidents from that in Counts I and II of Cr. No. 97-3100. As to Count I in
Cr. No. 97-2160, the prosecution said:
With respect to Count 1, the State would prove that –
essentially, the evidence of the State would be that during
a certain confrontation, Mr. Martin had this weapon at the
stomach of Mr. Williams and clicked the trigger and for some
reason the gun did not work.
As to Counts I and II in Cr. No. 97-3100, the prosecutor said:
With respect to Counts 1 and 2 of 97-3100, again, with
the same weapon on the same evening, the State would prove
that shots were fired at a car in which Tory Cleg and
Sincery Edwards were passengers or drivers and those shots
were fired from that weapon by Mr. Martin.
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enhanced sentencing” (Paragraph 12); (3) “the legislature while
increasing the penalty for firing a firearm . . . , [in a
reckless endangering charge to a felony] did not include a
mandatory minimum sentence for the same conduct and firearm”
(Paragraph 14); (4) “the State [further] seeks under 706-660.1 to
aggravate by way of a mandatory minimum for the same use of the
firearm” (Paragraph 15); and (5) “the legislature did not intend
to enhance twice for one conduct” (Paragraph 19); (6) therefore
“the mandatory minimum language as it relates to the use of a
firearm in Count I of Cr. No. 97-2160 and Counts I and II under
Cr. No.
97-3100” are stricken.10
With respect to Counts I and II under Cr. No. 97-3100,
HRS § 707-713 in pertinent part states that reckless endangering
in the first degree is as follows:
(1) A person commits the offense of reckless
endangering in the first degree if the person . . . fires a
firearm in a manner which recklessly places another person
in danger of death or serious bodily injury.
(2) Reckless endangering in the first degree is a
class C felony.
As the language in Counts I and II indicates, the prosecution
charged the firearm was “an instrument that falls within the
scope of [HRS §] 706-660.1.”
Defendant maintained this was a
“double enhancement” stemming from (1) charging an aggravated
form of reckless endangering (the use of a firearm elevating the
10
The order in reference to these counts states in an incomplete
sentence, “IT IS FURTHER ORDERED that the mandatory minimum language as it
relates to the issue of a firearm in Count I of Cr. No. 97-2160 and Counts I
and II under Cr. No. 97-3100.” However, the transcript of July 10, 1998
hearing indicates the court intended the reference to be stricken, and the
parties do not dispute this.
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charge to first degree status, as opposed to second degree
reckless endangering)11 and (2) charging a HRS § 706-660.1
violation which exposed Defendant to a mandatory minimum term of
imprisonment without possibility of parole or probation for the
involvement of a firearm while engaged in the commission of a
felony.
As indicated, reckless endangering in the first degree
is a “class C felony.”
HRS § 707-713.
Upon conviction of a
class C felony, HRS § 706-660.1 provides that a defendant “may be
sentenced to an indeterminate term of imprisonment.”
Under the
indeterminate sentencing scheme, the court “shall impose the
maximum length of imprisonment” prescribed by law, and the
“minimum length of imprisonment shall be determined by the Hawaii
paroling authority[.]”
HRS § 706-660.
However, the court’s
sentencing power is subject to the proviso, relevant here, that
an indeterminate sentence is to be imposed “except as provided
11
HRS § 707-714 (1993) states as follows:
Reckless endangering in the second degree. (1) A
person commits the offense of reckless endangering in the
second degree if the person engages in conduct which
recklessly places another person in danger of death or
serious bodily injury.
(2) For the purposes of this section and in addition
to other applications, a person engages in conduct which
recklessly places another person ind danger of death or
serious bodily injury when that person intentionally
discharges a firearm in a populated area, in a residential
area or within the boundaries or in the direction of any
road, street or highway; provided that the provisions of
this paragraph shall not apply to any person who discharges
a firearm upon a target range for the purpose of the target
shooting done in compliance with all laws and regulations
applicable thereto.
(3) Reckless endangering in the second degree is a
misdemeanor.
(Emphasis added.)
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for in section 706-660.1 relating to the use of firearms in
certain felony offenses[.]”
Id.
Under the relevant portion of
HRS § 706-660.1, a defendant
may in addition to the indeterminate term of imprisonment
provided for the grade of offense be sentenced to a
mandatory minimum term of imprisonment without possibility
of parole or probation the length of which shall be as
follows:
. . . .
(d)
For a class C felony -- up to three years.
Reckless endangering in the first degree, as contrasted
to its second degree cousin, was originally “reserved for cases
where the actor employs ‘widely dangerous means.’”
HRS §§ 707-713 to -714.
Commentary on
The legislature in 1978 amended the
statute by adding to the circumstance of employing widely
dangerous means, the firing of a firearm under the prescribed
circumstances.
-714.
See Supplementary Commentary on HRS § 707-713 to
In doing so, the legislature equated the specific act of
the firing of a firearm in circumstances placing another person
in danger of death or serious bodily injury with the general
approbation against the employment of “widely dangerous means.”
Contrary to the court’s statement, there is no “double
enhancement” here.
Conviction under 707-713 for reckless
endangering in the first degree merely reflects the apparently
undisputed fact that defendant “fire[d] a firearm” under the
attendant circumstances as described in the statute.
The use of
the firearm was an intrinsic element of the class of felony for
which Defendant was charged.
As expressed by HRS § 706-660,
under such circumstances the court was required to consider under
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HRS § 706-660.1 whether Defendant should “in addition to the
indeterminate term of imprisonment” called for, “be sentenced to
a mandatory minimum term of imprisonment” for the use of the
firearm.
Thus, sentencing under HRS § 706-660.1, were it to take
place, would not extend the maximum length of imprisonment, but
only remove the extent to which the Hawai#i Paroling Authority
might, in its discretion, prescribe as the minimum length of
imprisonment to be served by Defendant.
Because the language of
Counts I and II only reflected the interrelationship between the
indeterminate sentencing procedure in HRS § 706-660 which was
subject to the mandatory minimum term procedure in HRS § 706660.1, there was no reason to strike it.
The court’s reference
to two mandatory minimums appears to be incorrect.
The court,
accordingly, erred in striking the language from Counts I and
II.12
V.
12
The court said “[w]ith respect to the charge of [a]ttempted
[a]ssault in the [s]econd [d]egree and the two counts of [r]eckless
[e]ndangering in the [f]irst [d]egree, if a defendant commits these offenses,
he can be charged either with the unadorned Class C felony or with the Class C
felony with a firearm mandatory minimum basically at the whim of the
prosecution.” The court contended, thus, that under State v. Modica, 58 Haw.
249, 250-51, 567 P.2d 420, 421-22 (1977) (holding that where “same act
committed under the same circumstances is punishable either as a felony or as
a misdemeanor, under either of two statutory provisions, and the elements of
proof essential to either conviction are exactly the same[;] a conviction
under the felony statute would constitute a violation of the defendant’s
rights”). As indicated above with respect to attempted assault in the second
degree in Cr. No. 97-2160, the mandatory minimum sentence charge under HRS §
706-660.1 is stricken. With respect to the reckless endangering in the first
degree charges, “the Class C felony [charge] with a firearm mandatory minimum”
merely reflects the circumstance that when a firearm is employed in a HRS
§ 707-713 charge, the court must consider whether a part of the indeterminate
imposed sentence should be made pursuant to HRS § 706-660.1.
16
***NOT FOR PUBLICATION***
Accordingly, the court’s order dismissing Count IV of
Cr. No. 97-2160 is vacated with instructions that Count IV be
reinstated, but the striking of the reference to HRS § 706-660.1
in Count I of Cr. No. 97-2160 is affirmed.
The court’s order
striking the reference to HRS § 706-660.1 in Counts I and II of
Cr. No. 97-3100 is vacated and the case remanded for disposition
in accordance with this opinion.
On the briefs:
Donn Fudo, Deputy Prosecuting
Attorney, City and County
of Honolulu, for plaintiffappellant.
Rose Anne Fletcher, Deputy
Public Defender, for
defendant-appellee.
I concur in the result.
17
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