78 Hawai'i 66, State v. Israel

• Decision Date: 27 February 1995
• Docket Number: No. 16803,16803
• Parties: 78 Hawai'i 66 STATE of Hawai'i, Plaintiff-Appellant, v. Lorrin ISRAEL, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 303

890 P.2d 303

78 Hawai'i 66

STATE of Hawai'i, Plaintiff-Appellant, v. Lorrin ISRAEL, Defendant-Appellee.

No. 16803.

Supreme Court of Hawai'i.

Feb. 27, 1995.

Caroline M. Mee, Deputy Pros. Atty., on the briefs, Honolulu, for plaintiff-appellant.

Theodore Y.H. Chinn, Deputy Public Defender (Kenneth Shimozono, Defender Intern, assisting him on the brief), Honolulu, for defendant-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

The State appeals from a circuit court order dismissing one count of a multi-count complaint against defendant-appellee Lorrin Israel. The dismissed count charged Israel with knowingly possessing or intentionally using or threatening to use a firearm while engaged in the commission of a felony in violation of Hawai'i Revised Statutes (HRS) § 134-6(a) (Supp.1992), ¹ and was dismissed for failing to specify which felony Israel was allegedly committed at the time he possessed, used, or threatened to use a firearm. We affirm.

I. BACKGROUND

On June 9, 1992, Israel was arrested on various firearm and ammunition related charges. The following day, complaints were filed in district court for each of five charges. The charges included: Possession of a Firearm by a Person Convicted of Certain Crimes in violation of HRS § 134-7(b) and (g) (Supp.1992); Possession of Ammunition By a Person Convicted of Certain Crimes in violation of HRS § 134-7(b) and (g); Place to Keep Firearm Loaded With Ammunition in violation of HRS § 134-6(c) and (d) (Supp.1992); and Possession, Use or Threat to Use a Firearm in the Commission of a Felony in violation of HRS § 134-6(a) and (d). ²

On June 15, 1992, a preliminary hearing on the charges against Israel was held before the district court. According to the testimony presented at the preliminary hearing, on June 9, 1992, Israel drove to Michelle Taniguchi's house where his girlfriend, Carissa Fraczak, was spending the night. When Israel arrived at Taniguchi's house, he saw Michael Caylor who, along with John Strom and Joey Strom, was visiting Taniguchi. Israel spoke briefly with Caylor and then approached Fraczak. Israel asked Fraczak if he could speak with her. After she refused and walked away, Israel returned to his car.

Caylor then saw John and Joey Strom run off. Caylor fled shortly thereafter when he looked back and saw Israel with a gun. When Fraczak saw Caylor and the others running away, she returned and approached Israel. She then saw that Israel had a gun. Israel pointed the gun at her stomach and said "let's talk." Scared by Israel's behavior, Fraczak ran toward the house. Taniguchi calmed Israel down and he threw the gun on the grass. Taniguchi then told Fraczak to come out and talk to him.

Honolulu Police Department (HPD) Officer Kurt Nakamura was dispatched to Taniguchi's residence to a "threatening type case." He met Caylor at another residence where Caylor told Officer Nakamura that Israel had threatened him with a gun. Officer Nakamura then accompanied Caylor to Taniguchi's house where Caylor identified Israel. Officer Nakamura identified himself and started to search Israel for weapons. During the search, Taniguchi drove up in Israel's car. Israel gave Officer Nakamura oral permission to search his car. After a loaded revolver was found under the passenger seat, Israel was placed under arrest.

Following the arrest, Israel gave HPD Detective Elmer Tadley his version of the incident: He went to the Taniguchi residence, got out of his car to talk with Fraczak, then went back to his car to look for a weapon. He did not realize there was a gun in the car until he "felt" it on the passenger side of the car. When the three males ran away, he got out of his car and pointed the gun at Fraczak out of "anger and stupidity." He then dropped the gun on the grass and later put it back in the car. Israel also told Detective Tadley that the gun was his father's and that he had taken it to clean it. Finally, he admitted that he had previously been convicted of a felony, namely Second Degree Theft, and that he "got off" parole in 1990.

Based on the evidence presented at the preliminary hearing, the district court found probable cause to believe that Israel had committed the four offenses ³ and bound him over to circuit court for further proceedings. The district court gave no indication as to which felony it found probable cause to believe Israel had been committing at the time he possessed, used, or threatened to use a firearm, but simply stated that it found "from the evidence that there is probable cause to believe that the defendant did commit the four remaining charges with which he's charged[.]"

After Israel was committed to the circuit court, a four count complaint was filed charging Israel with each of the offenses that the district court had found probable cause to believe Israel had committed, including Possession, Use or Threat to Use a Firearm in the Commission of a Felony in violation of HRS § 134-6(a).

In full, the HRS § 134-6(a) count, Count IV, alleged:

On or about the 9th day of June 1992, in the City and County of Honolulu, State of Hawaii, LORRIN ISRAEL did knowingly possess or intentionally use or threaten to use a firearm while in the commission of a felony, whether the firearm was loaded or not, and whether operable or not, thereby committing the offense of Possession, Use or Threat to Use a Firearm in the Commission of a Felony, in violation of Section 134-6(a) and (d) of the Hawaii Revised Statutes.

On September 15, 1992, Israel filed a motion to dismiss Count IV of the complaint, claiming, among other things, that the count "failed to state a claim by not specifying which underlying felony Defendant committed when he used a firearm."

On January 20, 1993, after a hearing, the circuit court granted Israel's motion to dismiss Count IV of the complaint. In its Findings of Fact, Conclusions of Law and Order, the court concluded that "the failure of the complaint to allege an underlying or predicate felony ... violate[d] Article I, Section 14 of the Hawaii State Constitution ... [because t]he absence of an underlying felony being alleged [left] the defendant without any notice of the charge or accusation against him[.]" The court also ruled that "the failure of the complaint to state any underlying or predicate felony ... violate[d] Article I, Section 10 of the Hawaii State Constitution ... [because w]ithout an allegation of any underlying felony relevant to Count IV, there [could have been] no probable cause determination made by [the district] court[.]" Finally, the court stated that it "further bas[ed] its order on any parallel United States Constitutional provisions[.]"

Pursuant to HRS § 641-13(1) (Supp.1992), ⁴ the State appeals.

II. DISCUSSION

"Although the detailed and technical niceties of previous pleading and practice are no longer required, a charge must still be in a legally sufficient form which correctly advises the defendant about the allegations against him or her." State v. Cadus, 70 Haw. 314, 318, 769 P.2d 1105, 1109 (1989); see also State v. Schroeder, 76 Hawai'i 517, 529, 880 P.2d 192, 204 (1994). The sufficiency of a charge is measured against several criteria. See HRS § 806-34 (1985). ⁵

The principal criteria are first, whether the [charge] "contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he [or she] must be prepared to meet,' " and, secondly, " 'in case any other proceedings are taken against him [or her] for a similar offense, whether the record shows with accuracy to what extent he [or she] may plead a former acquittal or conviction.' "

State v. Daly, 4 Haw.App. 52, 54-55, 659 P.2d 83, 85 (1983) (quoting Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962)) (citations omitted). In addition, the charge "must be specific enough to ensure that the grand jury [or the court before which a preliminary hearing is held] had before it all the facts necessary to find probable cause." Id. at 54 n. 6, 659 P.2d at 85 n. 6 (quoting State v. Kane, 3 Haw.App. 450, 457, 652 P.2d 642, 647 (1982)).

For the reasons set forth below, we hold that the complaint failed to adequately inform Israel of the nature and cause of the HRS § 134-6(a) charge and failed to ensure that the district court had before it all the facts necessary to find probable cause on that charge.

A. Right to be informed of the nature and cause of the accusation.

Article I, section 14 of the Hawai'i Constitution provides in part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation[.]" ⁶

We believe, and the State apparently agrees, that the underlying felony of an HRS § 134-6(a) charge (i.e., the felony that the defendant was allegedly committing at the time he or she possessed, used, or threatened to use a firearm) is part of the nature and cause of the accusation. Nonetheless, relying on HRS § 806-31 (1985), the State argues that Count IV's general allegations sufficiently stated the offense. HRS § 806-31 provides:

Indirect allegations. No indictment or bill of particulars is invalid or insufficient for the reason merely that it alleges indirectly and by inference instead of directly any matters, facts, or circumstances connected with or constituting the offense, provided that the nature and cause of the accusation can be understood by a person of common understanding.

Count IV of the complaint, however, merely alleged that Israel "did knowingly possess or intentionally use or threaten to use a firearm while in the commission of a felony." The generic term "felony" did not, indirectly or by inference, inform Israel that the underlying felony was Terroristic Threatening in the First Degree. Therefore, we do not believe "that the nature and cause of the accusation [could] be understood by a person of common...