80 Hawai'i 27, State v. Holbron

Citation904 P.2d 912
Decision Date20 October 1995
Docket NumberNo. 15916,15916
Parties80 Hawai'i 27 STATE of Hawai'i, Respondent-Appellee, v. Billy HOLBRON, Petitioner-Appellant.
CourtHawaii Supreme Court

Theodore Y.H. Chinn, Deputy Public Defender, on the briefs, Honolulu, for petitioner-appellant Billy Holbron.

Caroline M. Mee, Deputy Prosecuting Attorney, on the briefs, Honolulu, for respondent-appellee State of Hawai'i.


LEVINSON, Justice.

The matter before us confronts this court for the first time with the question whether, in combination, Hawai'i Revised Statutes (HRS) §§ 705-500 (1993) 1 and 707-702(1)(a) (1993) 2 create the offense of attempted manslaughter. Put differently, we consider whether, under the Hawai'i Penal Code (HPC) and within the context of the general criminal attempt liability delineated therein, it is possible for a defendant to be charged with or convicted of the offense of "attempted manslaughter" premised upon the defendant attempting recklessly to cause the death of another person. In State v. Tagaro, 7 Haw.App. 291, 757 P.2d 1175, cert. granted,69 Haw. 678 (1987), cert. dismissed, 70 Haw. 666, 796 P.2d 502 (1988), the Intermediate Court of Appeals (ICA) held, inter alia, that "a person charged with attempted murder, an intentional crime, may be found guilty of attempted manslaughter[,]" pursuant to HRS §§ 705-500 and 707-702(1)(a), "if the person acted intentionally or knowingly under mitigating circumstances that do not constitute [a] complete justification." Tagaro, 7 Haw.App. at 297, 757 P.2d at 1178.

The foregoing question is prompted by the petitioner-appellant Billy Holbron's appeal from the judgment, guilty conviction, and sentence of the First Circuit Court, filed on January 6, 1992, adjudging him guilty of attempted murder in the second degree, in violation of HRS §§ 705-500 and 707-701.5(1) (1993). 3 In his opening brief, Holbron urged, inter alia, that the circuit court erred in instructing the jury--over his objection--that "if it did not find [him] guilty of ... attempted murder, it could find him guilty of the included offense of attempted reckless manslaughter" because, he argued, "[t]he offense of attempted reckless manslaughter is non-existent under [the HPC.]" The jury being "required to consider the non-existent included offense of attempted reckless manslaughter before it considered the ... included offense of assault in the first degree" (which, in Holbron's words, the circuit court treated as "the second lesser included offense"), Holbron argued that the jury was wrongfully deprived of the opportunity fairly to consider whether he was guilty of the latter. Accordingly, Holbron asserted that the circuit court's harmful error entitled him to a new trial.

We assigned Holbron's appeal to the ICA, which affirmed the circuit court's judgment of conviction in State v. Holbron, 10 Haw.App. 629, 862 P.2d 1079 (1993) (mem. op.) [hereinafter "ICA's decision"]. Noting that Holbron had argued "that Tagaro was wrongly decided because a person cannot attempt to cause the death of another person through the commission of a reckless act," the ICA expressly declined to retreat from its holding in Tagaro, which it characterized as follows: "[W]hen the defense of self-defense is raised in a prosecution for attempted murder, the [trial] court is required to instruct the jury that it may consider attempted manslaughter as a lesser included offense." ICA's decision at 2. Nevertheless, the ICA ruled that Tagaro did not support the attempted reckless manslaughter instruction given in the present case because, "[i]n Tagaro, the defendant alleged [that] he acted in self-defense," whereas "[h]ere, [Holbron] has made no such claim." Id. at 3. The ICA therefore held that "the challenged instruction to the jury was erroneous" but that "the erroneous instruction was harmless." Id. at 3-4.

We granted Holbron's application for a writ of certiorari to review the ICA's decision. Because, for the reasons set forth below, we hold as a matter of law that HRS §§ 705-500 and 707-702(1)(a) do not and cannot give rise to the offense of "attempted manslaughter" under any circumstances, we hereby overrule Tagaro. However, because we agree with Holbron that there is no offense of "attempted reckless manslaughter" under the HPC, we likewise agree with the ICA, albeit on different grounds, that the challenged jury instruction was erroneous. Moreover, on the record before us and for the reasons set forth below, we agree with the ICA that the erroneous instruction was harmless. Accordingly, we affirm the ICA's decision affirming the circuit court's judgment of conviction. 4


On May 3, 1990, the Office of the Prosecuting Attorney for the City and County of Honolulu filed a criminal complaint against Holbron in the First Circuit Court, charging him with attempted second degree murder as follows:

On or about the 21st day of April, 1990, in the City and County of Honolulu, State of [Hawai'i], BILLY HOLBRON did intentionally engage in conduct which is a substantial step in a course of conduct intended or known to cause the death of Roxanne Benarao, thereby committing the offense of Attempted Murder in the Second Degree, in violation of Sections 705-500, 707-701.5(1) and 706-656 5 of the [Hawai'i] Revised Statutes.[ 6

Holbron's trial began on November 4, 1991 and ended on November 15, 1991, with the return of the jury's guilty verdict. The ICA's decision accurately characterized the "operative facts" adduced at trial, as follows:

[Benarao], [Holbron's] girl friend, arrived at [Holbron's] residence with a plate of food for him; [Benarao] placed the food in the icebox after discovering [Holbron] asleep; when [Holbron] awoke, [Benarao] took the food to him; [Holbron] indicated he did not like the taste of the food, so [Benarao] returned the food to the icebox and went into another room; shortly thereafter, [Holbron] entered the room where [Benarao] was, threw the plate of food at [Benarao's] head, and told her to go home; after [Benarao] gathered up her clothing, [Holbron] threw a radio at her; [Benarao] then entered the living room from where she saw [Holbron] walk in and out of the house several times; [Holbron] finally walked into the house with a gasoline container; [Holbron] asked [Benarao], "You ready to fucking die?"; [Holbron] threw some gasoline onto [Benarao]; [Holbron] then threw a lighted match at [Benarao], but the gasoline did not ignite; [Holbron] threw another lighted match at [Benarao] and the gasoline ignited; [Benarao] extinguished the flames but suffered severe burns; [Holbron] left the house and ran down the street; the house burned down.

[Holbron] did not dispute any of the facts surrounding the event. His defense was that he had "potentially suffered a lot of trauma to the head, ... and that he has recognized organic difficulties in the way his brain works and the way he functions in a day-to-day situation." One of [Holbron's] expert witnesses testified that [Holbron] suffered from damage to the right frontal lobe of the brain and had "significant difficulty with his impulse control." Another expert diagnosed [Holbron] as having "one, organic mental disorders not otherwise specified; and, two, antisocial personality disorder." A third expert diagnosed [Holbron] as having "number one, possible substance [induced] organic mental disorder; number two, substance abuse, methamphetamine."

ICA's decision at 4-5.

Holbron's defense theory, as ultimately argued to the jury by his counsel, was that his bizarre actions clearly indicated that he did not have the requisite state of mind to commit attempted murder. "Defense counsel maintained that the events that transpired could not have aroused [Holbron] to the point where he would have formed the specific intent to cause [Benarao's] death; if anything, [Holbron] had acted recklessly." Id. at 5.

During settlement of jury instructions, Holbron requested--and the circuit court agreed to give--instructions regarding the mitigating defense of attempted manslaughter by virtue of "extreme mental or emotional disturbance," 7 as well as the included offenses of assault in the first degree, 8 assault in the second degree, 9 and reckless endangering in the first degree. 10

The crux of this appeal, however, revolves around State's Supplemental Instruction No. 11, which sought to have the jury instructed regarding the "included offense" of "Attempted Manslaughter (Reckless conduct)" [hereinafter "the disputed instruction"]. 11 As modified by the circuit court, the disputed instruction provided:

A person commits the offense of Attempted Manslaughter if he intentionally engages in conduct, which under the circumstances as he believed them to be, constituted a substantial step in a course of conduct to recklessly cause the death of another person.

There are two elements of Attempted Manslaughter, each of which must be proven by the prosecution beyond a reasonable doubt.

These two elements are:

1. The Defendant intentionally engaged in conduct; [and]

2. The conduct constituted a substantial step in a course of conduct to recklessly cause the death of Roxanne Benarao.

(Emphases added.) Defense counsel objected to the disputed instruction in the following colloquy with the circuit court:

[DEFENSE COUNSEL:] Excuse me, Your Honor, on [the disputed instruction], I'm objecting to you giving this.


THE COURT: Reckless conduct, manslaughter.

[DEFENSE COUNSEL:] I don't believe there's any such animal in the law. There's absolutely no case law to support that proposition....


THE COURT: Okay. Well, your--your objection to [the disputed instruction] is noted.


THE COURT: You understand that I am going to give [the disputed instruction] over your objection.


.... THE COURT: Okay. All right. The--your...

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