State Of Haw.‘i v. Kalaola
| Citation | 237 P.3d 1109,124 Hawai'i 43 |
| Decision Date | 19 August 2010 |
| Docket Number | No. 29163.,29163. |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff-Appellee v. Jason Keliikoaikaika KALAOLA, Petitioner/Defendant-Appellant. |
| Court | Supreme Court of Hawai'i |
OPINION TEXT STARTS HERE
Henry P. Ting, Deputy Public Defender, for respondent/defendant-appellant.
Anne K. Clarkin, Deputy Prosecuting Attorney, for petitioner/plaintiff-appellee.
Petitioner/Defendant-Appellant Jason Keliikoaikaika Kalaola was charged with one count of failure to disperse in violation of Hawai‘i Revised Statutes (HRS) § 711-1102 (1993), 1 following an incident at Aloha Tower Marketplace (ATM) in which police were called to respond to an unruly crowd. At trial, the State presented evidence concerning Kalaola's conduct on both the second and first floors of ATM, and argued that Kalaola's failure to disperse from either floor was independently sufficient to support a conviction. The jury found Kalaola guilty, and a timely appeal followed. On appeal, the ICA concluded that the trial court erred in improperly instructing the jury, but held that there was sufficient evidence to support the conviction. State v. Kalaola, No. 29163, 2009 WL 1507291, at *2-3 (Hawai‘i App. May 29, 2009). Accordingly, the ICA vacated the circuit court's judgment and remanded the case for a new trial. Id. at *3.
Kalaola timely petitioned this court for a writ of certiorari to review the ICA's June 26, 2009 judgment. In his application, Kalaola argues that the conviction was not supported by sufficient evidence and that, accordingly, it should be reversed rather than remanded for a new trial. The State did not petition this court for review of the ICA's judgment remanding to the circuit court for further proceedings, and did not file a response to Kalaola's application to this court. Accordingly, the ICA's finding of trial error with regard to the jury instructions is undisputed. The remaining question is whether the evidence presented at trial was sufficient to support Kalaola's conviction.
We hold that sufficient evidence was presented to establish that Kalaola failed to disperse from the first floor of ATM, but that there was insufficient evidence to establish that Kalaola failed to disperse from the second floor. We further hold that the double jeopardy clause of the Hawai‘i Constitution does not bar a retrial of Kalaola with regard to his alleged failure to disperse from the first floor, for which there clearly was sufficient evidence adduced at trial to support a conviction under HRS § 711-1102.
Although no Hawai‘i cases address double jeopardy in the context of the specific factual situation at issue here, we are guided by our prior double jeopardy cases. In a variety of cases involving reprosecution after a jury verdict, this court has repeatedly recognized that, as long as there was sufficient evidence presented to support the conviction of the defendant for the charged offense, the double jeopardy clause bars a retrial only when there was in fact an acquittal, whether express or implied. Such was not the case here, since the jury convicted Kalaola.
We therefore vacate Kalaola's conviction and remand for a new trial with regard to the events that transpired on the first floor.
The following facts, taken from the record on appeal and the transcripts of the proceedings before the trial court, are relevant to the consideration of the issues presented here. 2
Kalaola was charged by way of complaint with one count of failure to disperse in violation of HRS § 711-1102(1). The complaint against Kalaola alleged:
On or about the 19th day of May, 2007, in the City and County of Honolulu, State of Hawaii, [Kalaola], as one (1) of six (6) or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, or as a person in the immediate vicinity, failed to obey a law enforcement officer's order to disperse, in violation of Section 711-1102(1) of the [HRS].
At trial, the State's only witnesses were police officers who encountered Kalaola at ATM on the night of the alleged incident. For example, Officer Keani Alapa (Officer Alapa) testified he was dispatched to ATM because of a report of “approximately 50 people fighting.” Upon arriving at ATM, Officer Alapa and Officer Ryan Kaio (Officer Kaio) encountered “multiple fights going on, approximately maybe 50 to 75 people fighting” on the second floor of ATM. Officer Alapa testified that he observed fighting over “pretty much the whole area” of the second floor.
Officer Alapa testified that he observed Kalaola on the second floor “calling people out, challenging people to fight.” Officer Alapa further testified that he addressed the “general group” of which Kalaola was a part and ordered them to leave at least ten times. Officer Alapa testified that Kalaola did not leave at that time, but that the officers “eventually got a lot of people to leave the second floor and (inaudible) proceed down to the parking lot where some other incidents ignited down there.” Officer Alapa testified that it took approximately 20 minutes before the crowd started to go downstairs, and that he also eventually proceeded to the first floor, where he “saw [Kalaola] again on the sidewalk.”
Sergeant Albert Lee (Sergeant Lee) testified that, when he arrived at ATM, he saw “about 50” people “streaming out, they were still all yelling at each other, had some small fights breaking out.” He testified that he also saw Kalaola “streaming out” of the second floor, yelling and swearing. Sergeant Lee testified that he approached Kalaola and “told him to leave the area.” Sergeant Lee further testified that, when he approached Kalaola, Kalaola was yelling and cursing at other people in the area, and that Sergeant Lee “had to tell [Kalaola] at least maybe ten more times” to leave. Sergeant Lee also testified that there were other fights breaking out in the parking lot of ATM, with which he had to assist. He further testified that, when he came back to the front of ATM, “there were still other people fighting in the general area [,]” and that he again “asked [Kalaola] to leave and he wouldn't.” Sergeant Lee testified that he then had Kalaola arrested for failure to disperse.
At the conclusion of the trial, the circuit court instructed the jury, with regard to the offense of failure to disperse, as follows:
...
A person commits the offense of Failure to Disperse if he is one of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, or he is a person in the immediate vicinity, and he knowingly fails to comply with a law enforcement officer's order to disperse.
There are three material elements to the offense of Failure to Disperse, each of which the prosecution must prove beyond a reasonable doubt.
These elements are:
1. That, on or about the 19th day of May, 2007, in the City and County of Honolulu, State of Hawai‘i, [Kalaola] was one of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, or he was a person in the immediate vicinity ; and
2. [Kalaola] failed to comply with a law enforcement officer's order to disperse; and
3. [Kalaola] did so knowingly.
(Emphasis added).
Although Kalaola requested that the circuit court include the statutory definition of “disorderly conduct” in the jury instructions, the circuit court did not instruct the jury on the definition of disorderly conduct.
The circuit court also gave the jury the following unanimity instruction, which was based on State v. Arceo, 84 Hawai‘i 1, 928 P.2d 843 (1996):
The law allows the introduction of evidence for the purpose of showing that there is more than one act upon which proof of an element of an offense may be based. In order for the prosecution to prove an element, all twelve jurors must unanimously agree that the same act has been proved beyond a reasonable doubt.
During closing argument, the Deputy Prosecuting Attorney (DPA) referred to the Arceo instruction in arguing that there were multiple acts to support conviction. Specifically, the DPA relied on the instruction to argue that “both” the events on the first floor and the events on the second floor could support conviction:
In order for the Prosecution to prove an element, all twelve jurors must unanimously agree that the same act has been proved beyond a reasonable doubt.
What this means, ladies and gentlemen, is whenever there is more than one act upon which proof of an element may be based.
Basically, ladies and gentlemen, what that means is, number one, the incident on the second floor and, number two, the incident on the first floor.
The incident on the second floor is when [Kalaola] was engaging in-was calling people out and Officer Alapa told [Kalaola] to disperse and [Kalaola] did not so [sic].
Officer Alapa chose not to arrest [Kalaola] at that time. He chose not to arrest anybody at that time because he was outnumbered and it was not safe for either him or Kaio to effectuate arrests.
Their priority at that particular point was getting people-was to calm down the situation and getting people to leave the second floor.
The second incident, this is the incident with Sergeant Lee downstairs.
At that particular-and, ladies and gentlemen, that (inaudible) that all twelve of you must agree that one of these incidents happened.
Basically, you cannot (inaudible) where six of you agree that the second floor incident happened, six of you agree that the first floor incident happened and [Kalaola] is guilty.
What that means is that twelve of you must agree that the second floor incident happened or the first floor happened or both happened.
Ladies and gentlemen, both did...
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