State v. Spearman
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The State charged Defendant with violating Haw. Rev. Stat. 291E-61(a)(1) and/or (a)(3) for operating a vehicle under the influence of an intoxicant (OVUII), but the complaint did not allege mens rea. During trial, Defendant moved for a judgment of acquittal and to strike all testimony about breath alcohol content. The district court interpreted this statement as a motion for judgment of acquittal as to section 291E-61(a)(3). The district court granted the motion and subsequently found Defendant guilty of violating section 291E-61(a)(1) only. The intermediate court of appeals (ICA) instructed the district court to dismiss without prejudice the portion of the complaint alleging a violation of section 291E-61(a)(1) because the charge was deficient for failing to allege mens rea. At issue on appeal was whether double jeopardy barred Defendant's re-prosecution for violating section 291E-61. The Supreme Court affirmed, holding (1) the collateral estoppel principle prohibited the State from re-litigating breath alcohol content, whether in a re-prosecution of Defendant on the section 291E-61(a)(3) method of proof, or as part of the State's evidence in a subsequent trial on the section 291E-61(a)(1) method of proof; and (2) collateral estoppel would not prohibit the State from re-charging Defendant on the section 291E-61(a)(1) method of proof.
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Electronically Filed
Supreme Court
SCWC-11-0000702
21-FEB-2013
09:55 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o--________________________________________________________________
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,
vs.
SARAH V.P. SPEARMAN, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-11-0000702
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000702; CASE NO. 1DTA-11-02146)
February 21, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, and POLLACK, JJ.
OPINION OF THE COURT BY MCKENNA, J.
I.
Introduction
At issue in this appeal is whether double jeopardy1 bars the
re-prosecution of a defendant for violating Hawai‘i Revised
1
Article V of the United States Constitution provides, “[N]or shall any
person be subject for the same offense to be twice put in jeopardy of life or
limb. . . .” Article I, Section 10 of the Hawai‘i State Constitution
provides, “[N]or shall any person be subject for the same offense to be twice
put in jeopardy. . . .”
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Statutes (“HRS”) § 291E-61 (2007 & Supp. 2009)2 (“Operating a
Vehicle under the Influence of an Intoxicant” or “OVUII”),
following a “judgment of acquittal” on the HRS § 291E-61(a)(3)
method of proof in an initial trial in which both HRS §§ 291E61(a)(1) and (a)(3) methods of proof were tried.
We reaffirm
that a “judgment of acquittal” on the HRS § 291E-61(a)(3) method
of proof in an OVUII trial is “in form only,” but that it serves
as a factual finding that the State has not met its burden of
proving the requisite breath alcohol content.
Based on our
recent holding in State v. Mundon, ___ Hawai‘i ___, ___ P.3d ___
(2012)(adopting the “collateral estoppel” principle from Ashe v.
Swenson, 397 U.S. 436 (1970)), however, the collateral estoppel
principle embodied in the double jeopardy clause prohibits the
State from re-litigating breath alcohol content, whether in a reprosecution of the defendant on the HRS § 291E-61(a)(3) method of
2
HRS § 291E-61 provides, in relevant part, as it did at the time of
Spearman’s alleged offense:
Operating a vehicle under the influence of an
intoxicant. (a) A person commits the offense of operating
a vehicle under the influence of an intoxicant if the person
operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount
sufficient to impair the person's normal mental faculties or
ability to care for the person and guard against casualty;
(2) While under the influence of any drug that impairs the
person's ability to operate the vehicle in a careful and
prudent manner;
(3) With .08 or more grams of alcohol per two hundred ten
liters of breath; or
(4) With .08 or more grams of alcohol per one hundred
milliliters or cubic centimeters of blood.
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proof, or as part of the State’s evidence in a subsequent trial
on the HRS § 291E-61(a)(1) method of proof. We therefore
expressly overrule State v. Lemalu, 72 Haw. 130, 139, 809 P.2d
442, 447 (1991), which held otherwise.
The collateral estoppel
principle, however, would not prohibit the State from re-charging
the defendant on the HRS § 291E-61(a)(1) method of proof,
following a dismissal without prejudice based on the failure of
the Complaint to allege mens rea.
See State v. Nesmith, 127
Hawai‘i 48, 276 P.3d 617 (2012). Consequently, we affirm the
ICA’s Judgment on Appeal.
II.
Background
On May 16, 2011, the State charged Spearman via Complaint
with violating HRS § 291E-61(a)(1) and/or (a)(3), but the
Complaint did not allege mens rea.
After the State orally read
the Complaint to Spearman, Spearman’s counsel moved to dismiss
the Complaint because it failed to allege mens rea.
The district
court3 denied the motion, and trial commenced.
Among the State’s witnesses was a Honolulu Police Department
officer who testified that she administered the breath alcohol
test, using the Intoxilyzer 8000, to Spearman, who “blew a 0.251
. . . percent of alcohol liters per two tenths breath.”
After
the State rested, Spearman’s counsel moved for a judgment of
3
The Honorable William A. Cardwell presided over the trial.
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acquittal and to strike all testimony about breath alcohol
content.
The district court interpreted this statement as a
“motion for judgment of acquittal as to the A-3.”
The district
court pointed out that the officer “testified that in fact it was
not .251 grams of alcohol per two hundred ten liters of breath.
It was something that I didn’t even understand. . . .
her to testify to [the units of measurement].
failed.”
It’s up to
She tried and
The district court then granted “the motion to judgment
of acquittal as to the A-3.”
Spearman chose not to testify.
The defense then rested, and
the district court found Spearman guilty of violating HRS § 291E61(a)(1) only.
Spearman appealed, on the basis that the
Complaint was legally deficient for failing to allege mens rea.
While Spearman’s appeal was pending before the ICA, we
issued our opinion in Nesmith, which held that an HRS § 291E61(a)(1) charge must allege mens rea in order to give the accused
fair notice of the nature and cause of the accusation.
Hawai‘i at 50, 54, 276 P.3d at 619, 623.
127
In disposing of
Spearman’s appeal, the ICA4 accordingly held, “Pursuant to
Nesmith, we conclude that Spearman’s HRS § 291E-61(a)(1) charge
was deficient for failing to allege mens rea.” State v. Spearman,
CAAP-11-0000702 (June 27, 2012)(SDO) at 2.
4
It then vacated the
The Honorable Craig H. Nakamura, Katherine G. Leonard, and Lisa M.
Ginoza presided over the ICA appeal.
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judgment of the district court and remanded the case “with
instructions to dismiss without prejudice the portion of the
complaint alleging a violation of HRS § 291E-61(a)(1).”
(footnote omitted).
observation:
Id. at 3
The ICA also footnoted the following
“We note that because the District Court acquitted
Spearman with respect to the alleged HRS § 291E-61(a)(3)
violation, the protection against double jeopardy would preclude
Plaintiff-Appellee State of Hawai‘i from re[-]prosecuting
Spearman for violating HRS § 291E-61(a)(3).”
Id. at 3, n.3.
III. Discussion
On certiorari, Spearman presents the following point-bypoint argument:
First, OVUII consists of a single offense (HRS §
291E-61) for which there are four alternative methods of proof
(HRS § 291E-61(a)(1), (2), (3), and (4)).
For this proposition,
Spearman cites State v. Grindles, 70 Haw. 528, 777 P.2d 1187
(1989).
Second, once the State failed to validly charge the HRS
§ 291E-61(a)(1) method of proof and failed to prove the HRS §
291E-61(a)(3) method of proof, the district court should have
found Spearman not guilty of the offense of OVUII or at least
dismissed the entire case with prejudice.
footnote 3 did not go far enough:
Third, the ICA’s
not only should double
jeopardy bar the State from re-prosecuting Spearman on the HRS §
291E-61(a)(3) method of proof, it should also bar the State from
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re-prosecuting her on the HRS § 291E-61(a)(1) method of proof.
In other words, a dismissal without prejudice on the HRS § 291E61(a)(1) method of proof was an improper remedy; the proper
remedy was a dismissal of the entire HRS § 291E-61 Complaint.
Consequently, Spearman requests that this court “reverse and
vacate the District Court’s Judgment of Conviction and Sentence
on the entire HRS § 291E-61 charge herein.”
The following sub-sections discuss several of our past
cases, which dispose of Spearman’s point-by-point argument.
1.
State v. Grindles
Spearman is correct that Grindles stands for the proposition
that Driving under the Influence (“DUI”) under HRS § 291-4 (now
OVUII under HRS § 291E-615) constitutes “one offense with
alternative methods of proof,” including proof of impaired
driving or proof of blood alcohol content.
P.3d at 1189.
70 Haw. at 530, 777
In that case, this court reversed an appellant’s
conviction for DUI and remanded the case for a new trial,
concluding that the trial court erred in bifurcating the DUI
trial into two separate hearings:
the first on the impaired
driving method of proof and the second on the blood alcohol
method of proof.
70 Haw. at 529, 777 P.2d at 1188.
5
The trial
HRS § 291E-61 substantially recodified HRS § 291-4 such that cases
interpreting HRS § 291-4 apply with equal force to HRS § 291E-61. Nesmith,
127 Hawai‘i at 59, 276 P.3d at 628.
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court adjudged the appellant guilty of violating HRS § 291-4
under the impaired driving method of proof, and the hearing on
the blood alcohol content method did not take place thereafter.
70 Haw. at 529, 777 P.2d at 1189.
This court footnoted a further
concern about the bifurcated trial as follows:
We also note that bifurcation of a DUI trial into two
separate hearings under HRS § 291-4(a)(1) and -4(a)(2) may
subject the defendant to double jeopardy. In this case,
jeopardy attached when the court began to hear the State’s
evidence. Appellant was not subjected to double jeopardy,
however, since the trial court adjudicated him guilty at the
conclusion of the State’s proof under § 291-4(a)(1), and did
not proceed to hold a second hearing under § 291-4(a)(2).
However, in the event the defendant is acquitted under §
291-4(a)(1) and the court allows the State to proceed under
§ 291-4(a)(2), the defendant will have been twice placed in
jeopardy for the same offense in violation of article I,
section 10 of the Hawaii Constitution and the fifth
amendment to the U.S. Constitution.
70 Haw. at 533, n.3, 777 P.2d at 1191, n.3.
2.
State v. Dow
This dicta in Grindles, at first glance, appears to support
Spearman’s double jeopardy argument.
However, this court’s
holding in State v. Dow, 72 Haw. 56, 806 P.2d 402 (1991),
demonstrates that an “acquittal” on one method of proof for DUI
does not necessarily pose a double jeopardy threat to a
subsequent prosecution on another method of proof for DUI.
In
that case, the defendant (“Dow”) was charged with DUI under HRS §
291-4(a)(1)(driving under the influence)(count I) and HRS § 2914(a)(2)(driving with blood alcohol level of 0.10 or more)(count
II).
72 Haw. at 58, 806 P.2d at 403.
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rested, Dow moved for a judgment of acquittal as to Count I,
which the trial court granted.
Id.
Count II was submitted to
the jury, but the jury was unable to reach a verdict on that
count, and the trial court declared a mistrial.
Id.
A second
trial on Count II was scheduled, and Dow filed a motion to
dismiss on the ground of double jeopardy.
Id.
The motion was
denied, trial commenced, and Dow was convicted on count II.
Dow appealed, and the ICA reversed his conviction.
58, 806 P.2d at 403-04.
Id.
72 Haw. at
This court then reversed the ICA’s
decision, concluding there was no double jeopardy bar to the
retrial.
72 Haw. at 57, 806 P.3d at 403.
Preliminarily, we note that the facts in Spearman’s case are
similar to those in Dow.
Spearman was charged with violating two
alternative sections of HRS § 291E-61:
the impaired driving
subsection (HRS § 291E-61(a)(1)) and the breath alcohol content
subsection (HRS § 291E-61(a)(3)).
After the prosecution rested,
Spearman moved for a judgment of acquittal as to the HRS § 291E61(a)(3) method of proof, and the trial court granted her motion.
After the “acquittal,” trial proceeded on the other method of
proof, HRS § 291E-61(a)(1).
Although Spearman’s case did not
result in a mistrial on that method of proof, her appeal did
result in a vacate-and-remand of that charge, with an instruction
to the district court to dismiss that charge without prejudice.
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Here, however, the similarities between Dow’s and Spearman’s
cases end.
Spearman, unlike Dow, has not yet been re-prosecuted
on the HRS § 291E-61(a)(1) charge;
Dow, on the other hand,
appealed his conviction on the basis of double jeopardy at the
end of his second trial.
In essence, Spearman’s double jeopardy
challenge to the ICA’s decision is hypothetical, as the ICA did
not direct the district court to commence a second trial on the
HRS § 291E-61(a)(1) charge; the ICA only ordered a dismissal of
that charge without prejudice.
Spearman’s challenge to the ICA’s
SDO and Judgment on Appeal appears to be that it leaves open the
potential for a double jeopardy violation should the State reprosecute.
Returning to this court’s analysis in Dow, however,
the ICA’s direction to the district court to dismiss Spearman’s
HRS § 291E-61(a)(1) without prejudice was not erroneous and will
not pose a double jeopardy threat.
In Dow, this court first recognized that the constitutional
guarantee against double jeopardy “protects against a second
prosecution for the same offense after acquittal,” whether by
jury verdict or by a direction of the court.
806 P.2d at 404 (citations omitted).
72 Haw. at 58-59,
However, it also noted
that not all acquittals are created equal:
there are situations
in which an acquittal can be “in form only”; in such a case, a
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second prosecution after a “form only” acquittal would be
constitutionally permissible.
72 Haw. at 59, 806 P.2d at 404.
In Dow, this court held that pursuant to Grindles, “DUI is one
offense that must be tried at one time.
Therefore, a trial court
should not ‘acquit’ a defendant of part of a DUI offense.”
72
Haw. at 63, 806 P.2d at 406.
It then turned to Hawai‘i Rules of Penal Procedure (“HRPP”)
Rule 29(a)(1977) for further support.
That rule stated at the
time of Dow’s case, as it does now:
Motions for directed verdict are abolished and motions for
judgment of acquittal shall be used in their place. The
court on motion of a defendant or of its own motion shall
order the entry of judgment of acquittal of one or more
offenses alleged in the charge after the evidence on either
side is closed if the evidence is insufficient to sustain a
conviction of such offense or offenses. If a defendant’s
motion for judgment of acquittal at the close of the
evidence offered by the prosecution is not granted, the
defendant may offer evidence without having reserved the
right.
Id.
(emphasis added in Dow).
This court stated, “[T]he rule
makes clear that the court may not acquit a defendant of less
than the entire offense of DUI.
We find, therefore, that the
trial court erred in entering a judgment of acquittal.”
Id.
This court concluded that such a “judgment of acquittal was not
valid. . . .”
72 Haw. at 65, 806 P.2d at 407.
Further, this court stated that it did not believe that the
trial court even intended to enter a “judgment of acquittal”:
[I]t is obvious from the record that the trial court did not
intend to dismiss the entire offense since the case
[proceeded on the other method of proof of DUI]. We find
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that the trial court did not acquit the defendant of
anything. Instead, we conclude that the trial court made a
factual finding, equivalent to a jury’s special verdict.
72 Haw. at 63, 806 P.2d at 406.
This court then rejected the
trial court’s characterization of its action as an “acquittal,”
holding that the “acquittal” was “in form only and not in
substance”; therefore, it concluded that “Dow was not twice
placed in jeopardy for the same offense when he was retried
following a mistrial on the (a)(2) count, despite the trial
court’s entry of judgment of acquittal on the (a)(1) count.”
72
Haw. at 65-66, 806 P.2d at 407.
Similarly, in Spearman’s case, the district court erred in
entering a “judgment of acquittal” as to just the HRS § 291E61(a)(3) charge.
As in Dow’s case, it was “obvious” that the
district court did not intend to dismiss the entire HRS § 291E-61
offense of OVUII because the district court proceeded to render
its decision on the HRS § 291E-61(a)(1) charge.
Instead,
pursuant to Dow, the district court’s “judgment of acquittal” on
the HRS § 291E-61(a)(3) charge was really a “factual finding”
that the State had not proven what Spearman’s breath alcohol
content was.
The district court’s “judgment of acquittal” was,
thus, in form only and would not prevent the State from reprosecuting Spearman on the HRS § 291E-61(a)(1) charge.
Consequently, the ICA did not err in directing the district court
to dismiss the HRS § 291E-61(a)(1) charge without prejudice, with
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the potential existing that Spearman could be re-prosecuted on
that method of proof.
3.
State v. Lemalu
The ICA did not err in the instant case in further
footnoting the following:
“We note that because the District
Court acquitted Spearman with respect to the alleged HRS § 291E61(a)(3) violation, the protection against double jeopardy would
preclude Plaintiff-Appellee State of Hawai‘i from re[]prosecuting Spearman for violating HRS § 291E-61(a)(3).”
Spearman, SDO at 3, n.3.
We acknowledge that this statement is
contrary to our holding in Lemalu, 72 Haw. 130, 809 P.2d 442, but
for reasons discussed further in Section III.4, we believe the
ICA was correct.
In Lemalu, this court held that the State was not precluded,
on double jeopardy grounds, from re-prosecuting both methods of
proof of DUI/OVUII, notwithstanding a “judgment of acquittal” on
one method of proof.
72 Haw. at 139, 809 P.2d at 447.
The
defendant (“Lemalu”) was charged with violating HRS § 2914(a)(1)(impaired driving)(count I) and (a)(2)(blood alcohol
content)(count II).
72 Haw. at 131-32, 809 P.2d at 443.
acquitted him of count I but convicted him of count II.
at 132, 809 P.2d at 443.
A jury
72 Haw.
This court remanded the case for
retrial based on its determination that Lemalu was prejudiced by
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the use of certain jury instructions combined with multiple
special verdict forms.
Id.
This court then considered whether
its remand of the case raised double jeopardy concerns, in light
of Lemalu’s judgment of acquittal on count I.
809 P.2d at 447.
It stated that there was “no question” that
Lemalu could be retried on count II.
447.
72 Haw. at 139-40,
72 Haw. at 139, 809 P.2d at
As to whether he could also be retried on count I, this
court concluded that the jury’s “judgment of acquittal” as to
that count was, as in Dow, “in form only and not in substance”;
therefore, it held, “It is thus constitutionally permissible for
the State to retry Lemalu on the DUI offense, which includes
count I as well as count II of the complaint.”
4.
Id.
State v. Mundon
This court recently decided Mundon, ___ Hawai‘i ___, ___
P.3d ___.
In that case, we unanimously recognized the
“collateral estoppel” principle embodied in the right against
double jeopardy:
“when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again
be litigated between the same parties in any future lawsuit.”
___ Hawai‘i at ___, ___ P.3d at ___.
In adopting the collateral
estoppel principle, we called into question Lemalu as
“inconsistent with our holding that once an acquittal is based on
a finding that the defendant did not commit certain acts,
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collateral estoppel prevents the prosecution from introducing
evidence of those acts in a subsequent trial.”
___ Hawai‘i at
___, n.34, ___ P.3d at ___, n.34.
We now expressly overrule Lemalu to the extent that it would
permit re-prosecution of an HRS § 291E-61(a)(3) offense following
the district court’s factual finding that the State had not
proven breath alcohol content in the initial prosecution.
Determination of breath alcohol content under HRS § 291E-61(a)(3)
involves “an issue of ultimate fact”:
under that method of
proof, proof of breath alcohol content of .08 or more grams of
alcohol per two hundred ten liters of breath alone is enough to
support a conviction under HRS § 291E-61(a)(3), as that method of
proof is one of absolute liability.
See Nesmith, 127 Hawai‘i at
50, 276 P.3d at 619.
Although a district court’s factual finding that the State
did not prove breath alcohol content is not a “valid and final
judgment” under HRPP Rule 29(a) as to the entire HRS § 291E-61
offense if other methods of proving the offense are
contemporaneously tried, under Mundon, such a factual finding
would serve to collaterally estop the State from re-litigating
breath alcohol content in a subsequent OVUII trial.
Specifically, collateral estoppel would preclude a re-trial on
the HRS § 291E-61(a)(3) method of proof, as well as bar
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introduction of evidence concerning Spearman’s breath alcohol
content at a retrial on the HRS § 291E-61(a)(1) method of proof.
Cf. State v. Mezurashi, 77 Hawai‘i 94, 96, 881 P.2d 1240, 1243
(1994)(holding that blood alcohol content can be used as evidence
of impaired driving).
We also note that even before Mundon, we observed 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.”
State v. Kalaola, 124 Hawai‘i 43, 62, 237 P.3d
1109, 1128 (2010)(citing Green v. United States, 355 U.S. 184,
187 (1957)).
In short, at Spearman’s first trial, the State
failed to prove Spearman’s breath alcohol content was at a level
necessary to violate HRS § 291E-61(a)(3).
The State cannot
attempt to newly prove what Spearman’s breath alcohol content was
in a subsequent trial.
IV.
Conclusion
A prior “judgment of acquittal” on an HRS § 291E-61(a)(3)
method of proof in an OVUII trial is “in form only,” but it
serves as a factual finding that the State has not met its burden
of proving breath alcohol content.
As such, the collateral
estoppel principle embodied in the double jeopardy clause
prohibits the State from re-litigating breath alcohol content,
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whether in a re-prosecution of the defendant on the HRS § 291E61(a)(3) method of proof, or as part of the State’s evidence in a
subsequent trial on the HRS § 291E-61(a)(1) method of proof.
The
collateral estoppel principle alone, however, would not prohibit
the State from re-charging the defendant on the HRS § 291E61(a)(1) method of proof, following a dismissal without prejudice
pursuant to Nesmith, 127 Hawai‘i 48, 276 P.3d 617. Consequently,
we affirm the ICA’s Judgment on Appeal.
Timothy I. MacMaster for
petitioner
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
Keith M. Kaneshiro and
Stephen K. Tsushima
for respondent
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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