Briones v. State

Decision Date31 March 1993
Docket NumberNo. 15833,15833
Citation74 Haw. 442,848 P.2d 966
PartiesIsagani P. BRIONES, Petitioner-Appellant, v. STATE of Hawaii, Respondent-Appellee.
CourtHawaii Supreme Court

Syllabus by the Court

The right to a fair jury trial includes the right to have all charges clearly presented to the jury in order to obviate the possibility of inconsistent findings of fact if the jury were to find against the defendant on all counts.

The state of mind essential to support a charge of attempted first degree murder of two people is inconsistent with that state of mind necessary to support separate counts of second degree murder and attempted second degree murder.

The state of mind of the accused provides the relationship and is the distinguishing factor between separate counts of second degree murder and one count of first degree murder. The state of mind with which the actor acts must, therefore, be clearly and unambiguously established by the finder of fact in order to sustain a first or second degree murder conviction.

Proper jury instructions must include a directive that a guilty verdict of first degree murder precludes a guilty verdict on second degree murder, and vice versa.

Factually inconsistent verdicts concerning multiple convictions require reversal and an order for a new trial.

Complaints of counsel's ineffective assistance at trial, contained in a Rule 40 petition, are usually waived pursuant to HRPP 40(a)(3).

Where petitioner has been represented by the same counsel both at trial and on direct appeal, no waiver of the issue of trial counsel's performance occurs because no realistic opportunity existed to raise the issue on direct appeal.

No constitutional right to an appeal exists.

Hawaii guarantees by statute the right to an appeal to every criminal defendant who deems himself or herself aggrieved by a district or circuit court judgment.

For appeals as of right, a criminal defendant has the right to effective assistance of counsel pursuant to the Due Process and Equal Protection Clauses of the United States and Hawaii Constitutions.

The burden to show ineffective assistance of trial or appellate counsel rests with the petitioner.

General claims of ineffective assistance of trial counsel are insufficient and every action or omission is not subject to inquiry. Specific actions or omissions alleged to be error but which had an obvious tactical basis for benefitting the defendant's case will not be subject to further scrutiny. If, however, the action or omission had no obvious basis for benefitting defendant's case and it resulted in the withdrawal or substantial impairment of a potentially meritorious defense, then the knowledge held and investigation performed by counsel in pursuit of an informed decision will be evaluated as that information that, in light of the complexity of the law and the factual circumstances, an ordinarily competent criminal attorney should have had.

An informed, tactical decision by trial counsel will rarely be second-guessed by judicial hindsight.

Determining whether a defense is potentially meritorious, requires an evaluation of the possible, rather than probable, effect of the defense on the decision maker. Therefore, no showing of "actual" prejudice is required to prove ineffective assistance of counsel.

An "appealable" issue is an error or omission by counsel, judge, or jury resulting in the withdrawal or substantial impairment of a potentially meritorious defense.

Every appealable issue is not required to be asserted.

If an appealable issue is omitted, then the issues actually presented on appeal as well as any omitted are evaluated in light of the entire record, the status of the law and, most importantly, counsel's knowledge of both.

Counsel's informed decision as to which issues to present on appeal will not ordinarily be second-guessed.

If an appealable issue is omitted as a result of the performance of counsel whose competence fell below that required of attorneys in criminal cases, then appellant's counsel is constitutionally ineffective.

Violation of an accused's constitutional right to effective assistance of counsel warrants the irrebuttable presumption of prejudice.

Reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute an "acquittal" for double jeopardy purposes.

John Ashford Thompson, on the briefs, Honolulu, for petitioner-appellant.

Doraine Meyer Belnap, Deputy Prosecuting Atty., on the briefs, Honolulu, for respondent-appellee.

Before LUM, C.J., and MOON, KLEIN and LEVINSON, JJ., Circuit Judge SOONG, in place of WAKATSUKI, J., deceased.

KLEIN, Justice.

Petitioner Isagani P. Briones (Petitioner) seeks review of a circuit court order dismissing his Hawaii Rules of Penal Procedure (HRPP) Rule 40 petition, which sought to vacate his conviction of attempted first degree murder in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1985) and 707-701(1)(a) (Supp.1992). Relying on our opinion in State v. Briones, 71 Haw. 86, 784 P.2d 860 (1989), the trial court determined that the petition was frivolous and thus no evidentiary hearing was held. See HRPP 40(f). 1 In Briones, we reversed Petitioner's convictions of attempted second degree murder and second degree murder, in violation of HRS §§ 705-500 and 707-701.5 (Supp.1992). Later, the circuit court dismissed both charges in accordance with our instructions. Our affirmance of petitioner's conviction and sentence for attempted first degree murder yielded the petition, the dismissal of which we now review. Because we agree with Petitioner in certain respects, we reverse his conviction of attempted first degree murder and remand to circuit court for a new trial. Although the facts of this case are ably set out in State v. Briones, supra, a brief summary is useful.


Shortly after arriving uninvited at a party on May 3, 1987, Petitioner allegedly took a shotgun from the car in which he arrived then shot and killed one person, pumped the gun, then shot and wounded another person. Both victims were guests at the party.

Petitioner was charged as follows:

Count I--Attempted first degree murder for the attempted murder of more than one person "in the same incident," in violation of Hawaii Revised Statutes (HRS) §§ 705-500 and 707-701(1)(a);

Count II--Second degree murder for causing the death of the first victim, in violation of HRS § 707-701.5(1);

Count III--Attempted second degree murder for attempting to cause the death of the second victim, in violation of HRS §§ 705-500 and 707-701.5(1);

Count IV--Place to keep firearm, in violation of HRS § 134-6 (1985); and

Count V--Possession of a firearm by a person indicted for certain crimes, in violation of § 134-7(b) (1985).

Petitioner was convicted by a jury on all five counts. At trial, Petitioner's counsel objected that convicting Petitioner of Count I as well as Counts II and III violated the double jeopardy prohibitions of the State and Federal constitutions as well as HRS § 701-109(1)(a) (1985) because Counts II and III were included and derivative offenses of Count I. 2 No objections were raised as to Petitioner's convictions on Counts IV and V.

Petitioner's counsel further argued at trial that the death of the first victim rendered Petitioner's conviction of attempted murder in the first degree (Count I) an impossibility, because one cannot be convicted of an inchoate, attempted crime as well as the substantive crime itself. The trial court resolved the issues by denying defense counsel's objections and imposing sentences on all five counts.

Petitioner's counsel reasserted his arguments on appeal. Without directly addressing the double jeopardy issue, 3 we affirmed Petitioner's conviction and sentence on Count I but reversed his convictions on Counts II and III, and remanded the case for dismissal of those two counts based upon the trial court's violation of an express statutory provision:

[B]ecause the exception clause of HRS § 707-701.5 directs the fact finder to first consider the elements of first degree murder, as codified in HRS § 707-701(1)(a), once it found Defendant guilty of the inchoate crime of attempted first degree murder, it was precluded from also considering the second degree murder and attempted second degree murder charges.

State v. Briones, 71 Haw. at 94, 784 P.2d at 864.

HRS § 707-701.5(1) states:

Except as provided in section 707-701 [first degree murder], a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.

(Emphasis added.)

Petitioner is currently serving a prison sentence of life without parole, as a result of his conviction of attempted first degree murder (Count I). Had Petitioner been convicted of either Count II or III, or both, the sentence would have included the possibility of parole. Petitioner retained different counsel and filed a Rule 40 petition for post-conviction relief. The trial court dismissed the petition and this timely appeal followed.

A. Impermissible Presumption of Guilt

Petitioner asserts that the judge's instructions to the jury concerning Counts I, II, and III, combined with the prosecutor's explanation in closing argument, led the jury to conclude that if petitioner were guilty of second degree murder (Count II) and attempted second degree murder (Count III), then petitioner was automatically guilty of attempted first degree murder (Count I). Petitioner maintains that he was prejudiced by his prior counsel's failure to raise this issue at trial and on appeal. We disagree.

The judge sufficiently instructed the jury regarding the elements of the individual counts. The judge's instructions in pertinent part were:

There are three elements to the offense of attempted murder in the first degree, each of which the prosecution must prove beyond a reasonable doubt. If the prosecution has done so, you must find the defendant guilty as charged....

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