86 Hawai'i 1, State v. Cullen
| Decision Date | 21 October 1997 |
| Docket Number | No. 19936,19936 |
| Citation | 86 Hawaii 1,946 P.2d 955 |
| Parties | 86 Hawai'i 1 STATE of Hawai'i, Plaintiff-Appellee/Cross-Appellant, v. Russell Peter Louis CULLEN, also known as Russell P.L. Cullen, Defendant-Appellant/Cross-Appellee. |
| Court | Hawaii Supreme Court |
Myles S. Breiner, on the briefs, Honolulu, for defendant-appellant/cross-appellee Russell Peter Louis Cullen.
Donn Fudo, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee/cross-appellant State of Hawai'i.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
The defendant-appellant/cross-appellee Russell Peter Louis Cullen appeals from the judgment and sentence following his conviction of one count of attempted murder in the first degree and one count of possession of firearm by a person convicted of certain crimes. On appeal, Cullen argues that the circuit court committed plain error in instructing the jury, inasmuch as: (1) the instructions on attempted first degree murder were defective because they failed to inform the jury that "intent to cause the deaths of Robin Saya and Carolina Ching in a common scheme or plan" was an essential element of the offense of attempted first degree murder; (2) the "transitional" instruction from attempted first degree murder to second degree murder and attempted second degree murder was defective in that it (a) treated the second degree charges as included offenses of the first degree charge, rather than as separate and mutually exclusive offenses that depend on irreconcilable factual premises, and (b) failed to inform the jury that a guilty verdict as to attempted first degree murder precluded a guilty verdict as to second degree murder and attempted second degree murder; (3) the instructions on both attempted first degree murder and attempted second degree murder were defective because they did not include the language "under the circumstances as the defendant believed them to be"; and (4) the instruction that "conduct shall not be considered a substantial step unless it is strongly corroborative of the defendant's intent to commit the offense," while included in the instruction on attempted first degree murder, was omitted from the instruction on attempted second degree murder, making that instruction defective. All of Cullen's points of error are without merit. Accordingly, we affirm Cullen's conviction and sentence.
On cross-appeal, the prosecution argues that Cullen's motion for bail pending appeal was improperly granted and alleges that the trial court erred in its entry of the following findings of fact (FOFs): (1) that, in this appeal, Cullen raised a substantial question of law, which, if decided in Cullen's favor, might result in a reversal or an order for a new trial of all the counts in connection with which imprisonment had been imposed; (2) that Cullen's medical condition provided clear and convincing evidence supporting the conclusion that he did not pose a flight risk; (3) that the prosecution did not present any evidence in the hearing on the motion, but relied, instead, upon the records and files in this case; and (4) that the prosecution's position that, because Cullen was convicted of a serious offense, he was, therefore, dangerous, was inconsistent with the provisions and intent of Hawai'i Revised Statutes (HRS) § 804-4.
This case arises out of the shooting of Carolina Ching and Robin Saya on November 17, 1993, at the Kukui Plaza parking structure. Ching was killed; Saya suffered serious injuries.
Saya identified Cullen as the shooter. Accordingly, on December 6, 1993, Cullen was charged by way of complaint with one count of attempted murder in the first degree in violation of HRS §§ 705-500, 1 707-701(1)(a), 2 and 706-656, 3 one count of murder in the second degree in violation of HRS §§ 707-701.5(1) 4 and 706-656, 5 one count of attempted murder in the second degree in violation of HRS §§ 705-500, 6 707-701.5(1), 7 and 706-656, 8 and one count of possession of firearm by a person convicted of certain crimes in violation of HRS §§ 134-7(b) and (h). 9
Cullen's first trial commenced on November 3, 1994. In his defense, Cullen attempted to establish an alibi and maintained that he had been misidentified. A mistrial was declared on November 30, 1994, when the jury was unable to reach a unanimous verdict.
Cullen's second trial began on September 19, 1995. During closing argument, the prosecutor stated to the jury:
[W]e are talking not about two separate incidents, we are talking about the same incident that happened at the same time, that he intended to kill both of them on that occasion, as opposed to him intending to kill just Carol and then later formulating the intent to kill Robin in a separate incident.
He has to have the intent to kill both of them in the same incident.
....
I make a point of this same incident for a very short reason and I will get to that.
You will be instructed[:] "If and only if you find the defendant is not guilty in Count One of the Offense of Attempted Murder in the [First] Degree, you find him not guilty of Count One; or you are unable to reach a unanimous verdict to this offense, then you must consider that the defendant is guilty or not guilty in Counts Two and Three of the Offense of Murder in the Second Degree and Attempted Murder in the Second Degree."
If you find him not guilty of Count One, or you can't reach a unanimous decision; then you got to look at Counts Two and Three, Murder Second, and Attempted Murder Second Degree.
If, however, you find him guilty of Attempted Murder in the First Degree, you do not go to Counts Two and Three.
The only difference between Attempted Murder One and Murder Two, and Attempted Murder Two, is the same incident. If they are different incidents, then we are looking Murder Second and Attempted Murder in the Second Degree.
If he didn't have the intent to kill both of them in the same incident, then we are look[ ]ing at Counts Two and Three.
That's really the only difference; but you cannot convict him of all three counts. You can only convict him like Count One, then you don't go on to Counts Two and Three, you just jump over to Count Four.
The prosecutor concluded his remarks to the jury by saying:
Based upon all the credible evidence that you have heard in this case, and based on the law that the Court will instruct you on, you must find this defendant, Russell Cullen, guilty as charged of Count One; Attempted Murder in the First Degree; and Count Four, Possession of a Firearm by a person convicted of certain crimes.
Prior to deliberations, the court instructed the jury:
Defendant is charged in Count One with the Offense of Attempted Murder in the First Degree. There are two material elements of Murder in the First Degree, each of which the prosecution must prove beyond a reasonable doubt.
These two elements are, one[:] that on or about the 17th day of November, 1993, on the Island of Oahu, City and County of Honolulu, State of Hawaii; the defendant did intentionally engage in conduct. Two[:] that such conduct constituted a substantial step in a course of conduct intended or known to cause the death of Robin Saya and Carol[ina] Ann Ching in the same incident.
Conduct shall not be considered a substantial step unless it is strongly corrobative of the defendant's intent to commit the offense.
If and only if you find the defendant not guilty in Count One of the Offense of Attempted Murder in the First Degree; or if you are unable to reach a unanimous verdict as to this offense, then you must consider whether defendant is guilty or not guilty in Counts [T]wo and Three of the Offenses of Murder in the Second Degree and Attempted Murder in the Second Degree.
The defendant is charged in Count Two with the Offense of Murder in the Second Degree. There are two material elements of Murder in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt. These two elements are; one, that on or about the 17th day of November, 1993, on the Island of Oahu, City and County of Honolulu, State of Hawaii; the defendant did cause the death of Carol[ina] Ann Ching. Two; that the defendant did so intentionally or knowingly.
Defendant is charged in Count Three with the Offense of Attempted Murder in the Second Degree. There are two elements to the Offense of Attempted Murder in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt. These two elements are; one, that on or about the 17th day of November, 1993, on the Island of Oahu, City and County of Honolulu, State of Hawaii; the defendant did intentionally engage in conduct; two, that such conduct constituted a substantial [step] in a course of conduct intended or known to cause the death of Robin Saya.
....
The defendant is charged with one [or] more than one offense in separate counts of the complaint. Each count and the evidence that applies to that count is to be considered separately....
Cullen did not object to any of these instructions.
The jury returned verdicts of guilty as to Count One (attempted first degree murder)and Count Four (possession of a firearm by a person convicted of certain crimes). Cullen was sentenced to life imprisonment without the possibility of parole in connection with Count One and ten years imprisonment in connection with Count Four.
On April 8, 1996, Cullen filed a motion for bail pending appeal pursuant to HRS § 804-6. 10 A hearing on the motion was held on May 15, 1996. Cullen presented evidence of his allegedly life-threatening health problems and need for frequent medical treatment in support of his argument that he presented no flight risk. 11 Cullen also argued that, inasmuch as the shooting victim/witness Saya was then under indictment on federal drug charges and himself under house arrest, Cullen would have minimal, if any, opportunity to pose a risk to Saya if freed on bail.
In applying HRS § 804-4, ...
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