85 Hawai'i 128, State v. Quitog, s. 19391

Decision Date28 April 1997
Docket Number19450,Nos. 19391,s. 19391
Parties85 Hawai'i 128 STATE of Hawai'i, Plaintiff-Appellee, v. Maxie QUITOG, Defendant-Appellant (Two Cases).
CourtHawaii Supreme Court

Mariano V. Hernando (Hayden Aluli, with him on the briefs), Honolulu, for defendant-appellant Maxie Quitog.

James H.S. Choi, Deputy Prosecuting Attorney, on the briefs for plaintiff-appellee State of Hawai'i.

Before KLEIN, Acting C.J., LEVINSON, NAKAYAMA and RAMIL, JJ., and SHIMABUKURO, Circuit Court Judge, in place of MOON, C.J., Recused.

LEVINSON, Justice.

The defendant-appellant Maxie Quitog has taken consolidated interlocutory appeals 1 from two orders of the First Circuit Court, the first--filed on November 1, 1995--denying his post-trial motion to dismiss Count I of the complaint, which charged him with the attempted second degree murder of George Stanley, "on double jeopardy grounds" and the second--filed on November 2, 1995--denying his post-trial motion to dismiss the same count "for violation of [the] double jeopardy clause and/or [based on] collateral estoppel" or, alternatively, for a judgment of acquittal "due to [the] prosecution's confession of error."

Quitog's appeals pose the following question of first impression in this jurisdiction: When, during final argument in a criminal prosecution for attempted second degree murder, (1) the prosecution abandons its initial position that the defendant is guilty as charged by (a) expressly conceding that he is not and (b) exhorting the jury to convict the defendant of one of several included offense as to which the trial court has instructed the jury, (2) the jury deadlocks by virtue of its inability to reach a unanimous agreement regarding the particular offense, if any, of which the defendant has been proved guilty, (3) the trial court declares a mistrial based upon "manifest necessity," and (4) the prosecution could have presented the jury with the theory that it subsequently wishes to advance on retrial, do the double jeopardy clauses of the United States or Hawai"i Constitutions 2 2

2 bar a retrial of the defendant as to the originally charged offense of attempted second degree murder? We hold that the double jeopardy clause of the Hawai'i Constitution does. 3

Thus, for the reasons discussed infra, we (1) vacate the circuit court's orders in part, (2) instruct the circuit court to modify its orders so as to preclude Quitog from being retried for attempted second degree murder, while permitting a retrial with respect to any lesser included offense, cf. State v. Wallace, 80 Hawai'i 382, 414, 910 P.2d 695, 727 (1996), 4 and (3) remand this case to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND

On March 22, 1994, Quitog was charged by complaint with attempted murder in the second degree in violation of Hawai'i Revised Statutes (HRS) §§ 705-500 and 707-701.5(1) (1993) 5 (Count I), criminal property damage in the first degree in violation of HRS § 708-820 (1993) (Count II), and terroristic threatening in the first degree in violation of HRS § 707-716(1)(d) (1993) (Count III). 6 In particular, Count I charged in relevant part that:

On or about the 8th day of March, 1994, in the City and County of Honolulu, State of Hawaii, MAXIE QUITOG ... did intentionally engage in conduct which is a substantial step in a course of conduct intended or known to cause the death of George Stanley, thereby committing the offense of Attempted Murder in the Second Degree....

A. Trial

The underlying events that gave rise to the complaint are irrelevant to the disposition of this appeal. What is relevant are certain events that occurred during Quitog's trial. 7 Jury selection took place on May 2, 1995. The deputy prosecuting attorney (DPA) and defense counsel delivered their opening statements the next day, and the evidentiary phase of the trial began.

Over the course of two days--May 3 and 4, 1995--, the prosecution moved thirteen exhibits into evidence and adduced the testimony of four witnesses--the complainant George Stanley, a Honolulu Police Department (HPD) evidence specialist, a general surgeon who treated Stanley for the injuries that Quitog inflicted, and an investigating HPD police officer--before resting its case-in-chief. Defense counsel then orally moved for a judgment of acquittal, which the trial court denied, ruling that the prosecution had made out a prima facie case as to all counts.

On May 4, 1995, Quitog adduced the testimony of his sister, moved a diagram into evidence, and rested his case. There were no rebuttal witnesses. The trial court excused the jury for the day, and defense counsel renewed his motion for judgment of acquittal, which the trial court again denied.

B. Included Offense Instructions

On May 8, 1995, when the proceedings were reconvened, the trial court noted, and Quitog acknowledged, that the defense had requested (and the trial court had agreed to give) jury instructions regarding all available offenses that were supported by the record and were "included," for purposes of the Hawai'i Penal Code (HPC), within the offense of attempted second degree murder, even though some were "inconsistent" with others. Thus, by agreement of the parties, the trial court ultimately instructed the jury as to the "included" offenses of: (1) "attempted manslaughter" by virtue of the defendant's reckless conduct (Court's Instruction No. 33); 8 (2) assault in the first degree in violation of HRS § 707-710 (1993) (State's Instruction No. 6); 9 (3) three forms of assault in the second degree in violation of HRS §§ 707-711(1)(a), -711(1)(b), and -711(1)(d) (1993) (Court's Instruction Nos. 34, 35, and 36); 10 (4) two forms of assault in the third degree in violation of HRS §§ 707-712(1)(a) and -712(1)(b) (1993) (Court's Instruction Nos. 37 and 37A); 11 and (5) reckless endangering in the second degree in violation of HRS § 707-714 (1993) (Court's Instruction No. 38). 12

C. Prosecution's Closing Argument

The parties and the trial court having reached agreement regarding the included offense instructions that would be read to the jury, the case was called and the DPA delivered his closing argument. The following excerpts are germane to the present appeal:

[BY THE DPA]: Good morning, members of the jury.

What I am about to tell you will probably surprise many, if not all of you.

[Quitog] is charged with Attempted Murder in the Second Degree, among other things. He is not guilty of Attempted Murder in the Second Degree.

One stab wound to the abdomen is not enough to prove that ... Quitog intended to kill George Stanley. Now, you may think, wait, aren't you the Prosecutor? Why are you saying this?

That one stab wound is not enough to prove that ... Quitog intended to kill George Stanley, but it is enough to prove beyond a reasonable doubt that he intended to cause what the law calls serious bodily injury and [Quitog], therefore, is guilty instead of Assault in the First Degree, which is an option available to you.

....

Finally, we reach the stabbing of George Stanley. What we have here is a decision tree. This is the type of analysis you should go through in deciding the stabbing portion of this case.

Now, as I argued to you at the outset, [Quitog] is not guilty of Attempted Murder because there was no intent to kill. I'll admit that. The [prosecution] does not seek a conviction of Attempted Murder in the Second Degree. Well, let me tell you something else. He's also not guilty of Attempted Manslaughter because Attempted Manslaughter requires reckless conduct.[ 13

....

He's guilty of Assault in the First Degree. He's guilty of intentionally or knowingly causing serious bodily injury. Now, what does that mean?

....

[Quitog] intentionally or knowingly caused serious bodily injury to George Stanley; and therefore, he is guilty of Assault in the First Degree.

Don't convict him of Attempted Murder in the Second Degree, although he's charged with that. He didn't intend to kill George Stanley. And to convict him of Attempted Murder in the Second Degree wouldn't be justice.

But don't convict him either of Assault in the Second Degree or Assault in the Third Degree because he did much more than that; and that would not be justice, either[,] because the injuries he created and what was on his mind, his state of mind, was more than recklessly; was more than substantial bodily injury; and was more than bodily injury. That's why the [prosecution] asks you to convict him of Assault in the First Degree.

....

Thank you.

(Emphases added.) Defense counsel responded with a seventeen-minute closing argument, 14 followed by three minutes of rebuttal by the DPA. The trial court then instructed the jury as to the law of the case.

D. The Jury's Deliberations, Communications, And Verdicts, And The Trial Court's Declaration Of A Mistrial As To Count I

The jury commenced its deliberations at 12:00 p.m. on May 8, 1995. Shortly after 4:10 p.m., the bailiff presented the trial court with a written jury communication, which inquired, "How does the law interpret the explanation of Assault in the First Degree regarding bodily injury? Does the 'cause' of bodily injury apply to the intent of the assailant or to the outcome of the injury?" (Emphasis added.) 15 The communication closed with a page reference to the trial court's instruction regarding the elements of first degree assault. At 4:27 p.m., after conferring with counsel, the trial court returned the communication to the jury with the typed response, "Please refer to the jury instructions." The jury was released for the day at 4:30 p.m.

On May 9, 1995, the jury resumed its deliberations at 9:00 a.m. The trial day was cut short by a bomb threat, which necessitated an evacuation of the courthouse at 2:10 p.m. The jury was released for the remainder of the day at 3:00 p.m.

On May 10, 1995, the jury once again resumed its deliberations at 9:00 a.m. Forty-five minutes later, the...

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