16 P.3d 246 (Hawai'i 2001), 21720, State v. Haanio

Docket Nº:21720.
Citation:16 P.3d 246, 94 Hawai'i 405
Opinion Judge:[8] The opinion of the court was delivered by: Acoba, J.
Party Name:STATE of Hawai'i, Respondent-Appellee, v. Oliver HAANIO, Jr., Petitioner-Appellant.
Attorney:[7] Dwight C. H. Lum, on the application, for petitioner- appellant
Case Date:January 31, 2001
Court:Supreme Court of Hawai'i

Page 246

16 P.3d 246 (Hawai'i 2001)

94 Hawai'i 405

STATE of Hawai'i, Respondent-Appellee,


Oliver HAANIO, Jr., Petitioner-Appellant.

No. 21720.

Supreme Court of Hawai'i.

January 31, 2001.

Page 247

[Copyrighted Material Omitted]

Page 248

[94 Hawai'i 407] Dwight C.H. Lum, on the application, Honolulu, for petitioner-appellant.

MOON, C.J., NAKAYAMA, RAMIL, and ACOBA, JJ.; with LEVINSON, J., concurring separately.



We affirm the affirmance by the Intermediate Court of Appeals (the ICA) of the June 19, 1998 judgment of conviction and sentence of Petitioner-Appellant Oliver Haanio, Jr. (Petitioner) for the included offense of robbery in the second degree, Hawai'i Revised Statutes (HRS) § 708-841 (1993). However, we disagree with the ICA's reformulation of the standard established in State v. Kupau, 76 Hawai'i 387, 879 P.2d 492 (1994), for governing a trial court's discretion in giving included offense instructions. For that reason, and to clarify other grounds for affirming Petitioner's conviction, we granted certiorari herein. We further hold, upon reexamination of the Kupau decision, that, in jury trials beginning after the filing date of this opinion, the trial courts shall instruct juries as to any included offenses having a rational basis in the evidence without regard to whether the prosecution requests, or the defense objects to, such an instruction. 1


On April 23, 1997, Petitioner was charged by way of complaint with one count of robbery in the first degree, HRS § 708-840(1)(a) (1993), 2 of Gilbert Kamoku. The complaint alleged in relevant part that "[o]n or about the 12th day of April, 1997, . . . [Petitioner,] while in the course of committing a theft, did attempt to kill or intentionally inflict or attempt to inflict serious bodily injury upon [Kamoku.]"

On January 20, 1998, the case proceeded to trial. Humphrey Goods testified that, at about 10:00 p.m. on April 12, 1997, while he and Robert Morris were sitting on a wall on River Street in Honolulu, he saw Petitioner approach Kamoku and hit him, causing Kamoku to fall to the ground. Once Kamoku was on the ground, Petitioner was observed kicking him several times. Approximately twenty minutes later, Goods approached Kamoku after being told that "something must be wrong."

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[94 Hawai'i 408] Morris testified he was sitting with Goods earlier when Petitioner challenged him to a fight and chased him around a car. Petitioner appeared intoxicated. Morris saw Petitioner walk down the street towards Kamoku, and ten minutes later Morris turned around and saw Kamoku lying on the ground and Petitioner walking away with a "friend." Petitioner approached Morris and again challenged him to a fight.

Charlotte Hammons testified that she observed, from fifty feet away, Petitioner "drinking" with Kamoku. She saw Kamoku give Petitioner some money, which Petitioner used to purchase beer at a nearby store. According to Hammons, Petitioner and Kamoku continued drinking until Petitioner stood up and requested more money from Kamoku. Hammons recalled that, at that moment, Petitioner choked Kamoku. When Petitioner released Kamoku, Kamoku fell to the ground. Petitioner yelled at Kamoku and kicked him. After Petitioner walked away from Kamoku, Hammons related that she and her boyfriend, Nick, approached Kamoku and found him lying on the sidewalk surrounded by blood. Goods observed that Kamoku's right pants pocket was turned inside out. Nick then called an ambulance.

An ambulance technician found Kamoku lying face down on the River Street sidewalk, with blood around his head and flowing from his nose and mouth. Kamoku arrived at the Queen's Medical Center comatose, barely breathing, and with bruises on his face, forehead, and around his eyes. The examining physician concluded that Kamoku had sustained a severe concussion.

Kamoku testified that he remembered something happening to him on April 12, 1997, but could not recall specifically what occurred. He only recollected "drinking," waking in the hospital, and being informed by a doctor that he had sustained a concussion. Kamoku did recount that he had money in his right front pocket on the day in question. He could not recall how much money he had, but remembered that he also had a wallet, food stamps, an identification card, and a bus pass, all of which were never recovered.

A police officer testified that Kamoku's bus pass was found by emergency "personnel" and provided to the officer when he was attempting to identify Kamoku at the scene of the crime.

At the close of the case-in-chief of Respondent-Appellee State of Hawai'i (the prosecution), the defense rested without presenting any evidence. Petitioner then moved for a judgment of acquittal, which the court denied. 3 Thereafter, the court presented the parties with proposed supplemental jury instructions regarding included offenses:

THE COURT: Now, I got some additional instructions I want you folks to take a look at over the weekend, included offenses.

I am not saying that I feel there's a rational basis to give them, but I wanted to give them to you both to think about over the weekend. . . .

At the conference held to settle instructions, the defense objected to the court's proposed supplemental jury instruction no. 5 4 on the

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[94 Hawai'i 409] included offense of robbery in the second degree, as defined in HRS § 708-841(1)(c). 5

THE COURT: . . . Court's supplemental 5 will be given over objection of [Petitioner]. [Defense Counsel].

[DEFENSE COUNSEL]: Yes. If the [c]ourt pleases, based on [Petitioner's] position of denial as to any type of action against the victim we would object on the grounds that this isn't consistent with the position taken by [Petitioner]. Also with the facts as brought out in testimony and evidence.

THE COURT: I will find a rational basis in the evidence for the jury to find that rather than intending to kill or attempting to kill or to inflict serious bodily injury[,] that [Petitioner] may have acted recklessly in inflicting the injuries he did on the victim. So No. 5 will be given over objection.

The prosecution had submitted a proposed included offense instruction on robbery in the second degree, State's supplemental instruction no. 1, but withdrew it at the settlement conference.

The court's supplemental instructions no. 6, regarding the purported included offense of assault in the first degree, as defined in HRS § 707-710(1), 6 and no. 7A, dealing with the included offense of assault in the second degree, 7 as defined in HRS § 707-711(1)(a) and (b), 8 were also given over Petitioner's objections. 9

The court subsequently conducted a colloquy with Petitioner, wherein it informed him of the included offenses and advised him that these offenses carried lesser penalties than the charged offense. Petitioner indicated he objected to the jury being instructed on lesser included offenses.

[THE COURT] Q: [Petitioner], we are having this brief matter without the jury because I want to tell you that you are entitled to have certain lesser included offenses considered in this case by the jury. Assault in the first degree, assault in the second degree. Do you understand?


Q. The offense you are charged with now carries a maximum twenty years in prison. If convicted of that offense[,] I have no choice but to send you to prison. Do you understand?

A. (Nods)

Q. As to included offenses, robbery in the second degree and assault in the first degree are Class B felonies and both carry a maximum penalty of ten years in prison and $25,000 fine. But they also carry the option of me giving you probation. Do you understand that?

A. (Nods)

Q. You need to answer out loud.

A. Yes, yes.

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[94 Hawai'i 410] Q. So that if I were to instruct the jury on the lesser included offenses of assault in the first degree and robbery in the second degree, the jury would have the option of finding you guilty of an included offense that you could get probation on. Do you understand that?

A. Yes, I do.

Q. There is one other offense that I find the evidence justifies me instructing the jury on. That is assault in the second degree. That is a class C felony. The maximum penalty is five years in prison and $10,000 fine. That one I can also give you probation on. Do you understand?

A. Yes, I do.

Q. During the time that we were settling instructions we were informed that you did not want to have any lesser included offenses in this case?

A. No, I don't.

Q. That is your position?

A. Yes, it is.

Q. So if I were to find that in addition to the three charges that I have already mentioned, robbery in the second degree, assault in the first degree, and assault in the second degree, if I were to say that the evidence justified me instructing the jury as to a theft in the second degree and assault in the third degree, one of which is a class C felony--the theft in the second degree is a class C felony, which is a five year felony; and assault in the third degree, which is a misdemeanor--you would still not want those included offense instructions?

A. No.

THE COURT: Thank you very much.

Nevertheless, the court gave its supplemental jury instructions nos. 5, 6, and 7A. After deliberations, the jury found Petitioner guilty of the included offense of robbery in the second degree. The court sentenced Petitioner to ten years' imprisonment, as set forth in its June 19, 1998 judgment of conviction and sentence.


On appeal, which was...

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