State v. Lemalu, 14296

• Decision Date: 11 April 1991
• Docket Number: No. 14296,14296
• Citation: 72 Haw. 130,809 P.2d 442
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Aukusitino L. LEMALU, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 442

809 P.2d 442

72 Haw. 130

STATE of Hawaii, Plaintiff-Appellee, v. Aukusitino L. LEMALU, Defendant-Appellant.

No. 14296.

Supreme Court of Hawai'i.

April 11, 1991.

Syllabus by the Court

1. There is no prohibition to charging in two counts the two separate methods of proving the offense of driving under the influence of intoxicating liquor (DUI) under Hawaii Revised Statutes (HRS) § 291-4(a).

2. A complaint charging the two methods of proving DUI in two counts was impliedly set forth in the conjunctive and sufficiently apprised defendant that he was charged with committing the offense provable by two different means.

3. The State is not required to elect between the two methods of proof provided by HRS § 291-4(a) at any stage of a DUI prosecution.

4. Where there was only one prosecution, and jeopardy for the DUI offense did not end until after the jury reached a verdict on both counts of DUI, submission of two DUI counts to the jury did not place defendant twice in jeopardy for the same offense.

5. Instructions in DUI case that erroneously gave jury the impression that two-count DUI charge constituted two separate crimes, combined with use of multiple verdict forms, created substantial prejudice recognizable as plain error.

6. Instructions must be worded so as not to mislead jury into believing that the two methods of proving DUI constitute two separate offenses.

7. Use of multiple verdict forms in DUI case is appropriate as long as jury is properly instructed that DUI is one offense.

8. Jury's verdict of not guilty under only one method of proof for DUI offense is merely a factual finding and not the basis for a judgment of acquittal; only one judgment of acquittal or of conviction should be entered with respect to one DUI offense.

9. Where jury finds defendant not guilty of one method of proof under HRS § 291-4(a), and court enters judgment of acquittal based on such finding, judgment of acquittal is in form only and not in substance; thus, on remand, it is constitutionally permissible for State to retry defendant on both counts of DUI offense as originally charged in complaint.

Arthur E. Ross (Paul J. Cunney, on the brief), Honolulu, for defendant-appellant.

Charlotte Jean Duarte and Wallace W. Weatherwax, Deputy Pros. Attys. (Alexa D.M. Fujise, on the brief), Honolulu, for plaintiff-appellee.

Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ.

MOON, Justice.

Defendant-appellant Aukusitino L. Lemalu (Lemalu) appeals his conviction for Driving Under the Influence of Intoxicating Liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985). Lemalu was arrested in 1987 and charged, in two separate counts, with violating HRS § 291-4(a)(1) (driving under the influence) (count I) and § 291-4(a)(2) (driving with a blood alcohol level of 0.10 percent or more) (count II). Following a jury trial, Lemalu was acquitted of count I but convicted of count II. On appeal, Lemalu asserts that the trial court erred in denying his motion to dismiss the complaint based on his contention that the use of two counts to charge a single offense of DUI rendered the complaint defective and violated his due process rights. Alternatively, Lemalu asserts that he was twice placed in jeopardy when both counts were submitted to the jury. Lemalu contends that the trial court should have required that the State elect only one count under which to proceed. We do not agree with these assertions. However, we conclude that there was substantial prejudice created by the use of particular jury instructions combined with multiple verdict forms, which may have led the jury to believe that Lemalu was charged with two separate offenses rather than one. We find such prejudice to be plain error, and therefore vacate Lemalu's conviction and remand for retrial.

I.

On December 4, 1989, before jury selection, the trial court heard Lemalu's "Motion to Dismiss Counts I and II of the Complaint" (motion to dismiss), which was based on a decision by this court issued in July 1989, State v. Grindles, 70 Haw. 528, 777 P.2d 1187 (1989), pronouncing that the DUI statute provided two alternative means of proving a single offense. ¹ At the hearing on the motion to dismiss, Lemalu argued that under Grindles he had been mischarged, since the complaint contained two counts alleging the single offense of DUI, which he submitted would lead the jury to believe that two offenses had allegedly been committed. The trial court disagreed, noting that Grindles was distinguishable from Lemalu's case because Grindles involved the bifurcation of the two methods of proving DUI into separate trials. The trial court, not convinced that Lemalu had been illegally charged, denied the motion to dismiss. After a three-day trial, both counts were submitted to the jury, which found Lemalu guilty under count II but not guilty under count I. The trial court entered a judgment of conviction as to count II, the subsection (a)(2) violation, and a judgment of acquittal as to count I, the (a)(1) violation. Lemalu timely appealed his DUI conviction under HRS § 291-4(a)(2).

II.

A.

The DUI statute, HRS § 291-4(a), provides as follows:

A person commits the offense of driving under the influence of intoxicating liquor if:

(1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor; or

(2) The person operates or assumes actual physical control of the operation of any vehicle with 0.10 per cent or more, by weight of alcohol in the person's blood.

Lemalu argues that since the complaint, which set forth the DUI violation in two counts, failed to clearly show that only one offense was charged, the complaint was prejudicially defective by virtue of the suggestion to the jury that he had committed not one but two crimes.

We do not believe, however, that the two-count DUI charge in this case was fatally flawed. There is no prohibition, constitutional or otherwise, to charging the DUI offense in two counts. The defense itself acknowledges that at common law one offense could be charged in more than one count to meet the contingencies of proof at trial. "It has long been the approved practice to charge, by several counts, the same offense as committed in different ways or by different means, to such extent as will be necessary to provide for every possible contingency in the evidence." 41 Am.Jur.2d Indictments and Informations § 223, at 1016 (1968). See also Wharton's Criminal Procedure § 296 (12th ed. 1975). DUI, by statute, is precisely such an offense. Thus, charging the two methods of proving DUI in separate counts is in keeping with approved practice. However, when the type of conduct proscribed under one subsection of a statute is not factually synonymous with that proscribed by another subsection, we have previously noted that the charge "may be laid in the conjunctive but not in the disjunctive." State v. Jendrusch, 58 Haw. 279, 283 n. 4, 567 P.2d 1242, 1245 n. 4 (1977). A defendant must be put on sufficient notice of the " 'nature and cause of the accusation' " with which he is charged. Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 (citation omitted). Phrasing a complaint in the disjunctive would not provide such notice as it would leave the defendant "uncertain as to which of the acts charged was being relied upon as the basis for the accusation against him." Jendrusch, 58 Haw. at 283 n. 4, 567 P.2d at 1245 n. 4.

In this case, there is neither the conjunctive "and" nor the disjunctive "or" joining the two counts alleging DUI in the complaint. Nonetheless, we find that the complaint is impliedly set forth in the conjunctive and that it sufficiently apprised Lemalu that he was charged with committing the offense of DUI provable by two different means. We therefore decline to reverse the trial court's denial of Lemalu's motion to dismiss the complaint on the basis of its two separate counts.

B.

Lemalu argues alternatively that the trial court erred by not requiring the State to make an election to proceed under either the (a)(1) or the (a)(2) subsection of HRS § 291-4. We have not been presented with any authority which convinces us that the State should be forced to elect between the two methods of proof provided by HRS § 291-4(a) at any stage of the proceeding.

Lemalu further argues that the submission of the two DUI counts to the jury placed him twice in jeopardy for the same offense. ² However, we discern no double jeopardy where, as here, the two DUI counts are submitted to the jury (or the judge, in a jury-waived case) at the same time. State v. Grindles, 70 Haw. 528, 777 P.2d 1187 (1989). The Double Jeopardy Clause was "directed at the threat of multiple prosecutions," and "guards against Government oppression." United States v. Scott, 437 U.S. 82, 86, 99, 98 S.Ct. 2187, 2191, 2198, 57 L.Ed.2d 65 (1978) (citations omitted). In addition, jeopardy does not come to an end in a particular case until the jury is discharged. State v. Manipon, 70 Haw. 175, 765 P.2d 1091 (1989). Therefore, since there was only one prosecution, and jeopardy for Lemalu's DUI offense did not end until after the jury reached a verdict on both counts, this case simply does not raise double jeopardy concerns.

Based on the arguments presented by Lemalu in this appeal, we discern no reversible error with respect to the trial court's denial of the motion to dismiss or the submission of both DUI counts to the jury.

III.

We now discuss our conclusion that the jury instructions combined with the use of multiple verdict forms addressing each DUI count created substantial prejudice to Lemalu by impressing upon the jury that he was charged with two separate DUI offenses. Although Lemalu has not raised this issue on appeal, we view the giving of certain instructions coupled with the use of multiple verdict forms as plain error.

Our review of the jury instructions in this case reveals two...