State v. Akau

Decision Date30 May 2008
Docket NumberNo. 26989.,26989.
Citation185 P.3d 229,118 Haw. 44
PartiesSTATE of Hawai`i, Respondent/Plaintiff-Appellee, v. Anthony Kalani AKAU, Petitioner/Defendant-Appellant.
CourtHawaii Supreme Court

Christopher R. Evans, Honolulu, for petitioner/defendant-appellant, on the application.

Loren J. Thomas, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee.

MOON, C.J., LEVINSON, and DUFFY, JJ.; NAKAYAMA, J., dissenting; ACOBA, J., concurring separately.

Opinion of the Court by MOON, C.J.

On February 8, 2008, this court accepted a timely application for a writ of certiorari, filed by petitioner/ defendant-appellant Anthony Kalani Akau on January 7, 2008, requesting this court review the Intermediate Court of Appeals' (ICA) October 11, 2007 judgment on appeal, entered pursuant to its September 21, 2007 summary disposition order (SDO). Therein, the ICA affirmed the Circuit Court of the First Circuit's1 October 15, 2004 judgment, convicting Akau of, and sentencing him for, — pursuant to his conditional guilty plea — three counts of promoting a dangerous drug in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1242 (1993 & Supp.2003).2 Oral argument was held on March 6, 2008.

Briefly stated, on three separate occasions in October and November 2002, Akau unwittingly sold crystal methamphetamine to undercover police officers. The drug buys led to the execution of a search warrant of Akau's person and personal effects, which, in turn, led to charges of promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993), and unlawful use of drug paraphernalia, in violation of HRS § 329-43.5 (1993) [hereinafter, the search warrant case or possession case]. Approximately ten months later (and after Akau pled no contest and was sentenced as a first-time drug offender in the search warrant case), Akau was indicted on three counts of promoting a dangerous drug in the second degree based upon the three undercover drug buys [hereinafter, the drug buy case or distribution case]. After unsuccessfully moving to dismiss the drug buy case based upon the compulsory joinder statutes, HRS §§ 701-111(1)(b) (1993) (barring a subsequent prosecution for "[a]ny offense for which the defendant should have been tried on the first prosecution") and 701-109(2) (1993) (requiring joinder of criminal offenses "based on the same conduct or arising from the same episode"), Akau entered a conditional guilty plea, pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rule 11(a)(2) (2007),3 and was sentenced.

On application, Akau apparently argues that the ICA erred in affirming, inter alia, the circuit court's denial of his motion to dismiss. Specifically, Akau asserts — as he did before the ICA — that the circuit court should have dismissed the drug buy case for failure on the part of respondent/plaintiff-appellee State of Hawai`i (the prosecution) to bring all the charges in one action, as required under HRS §§ 701-111(1)(b) and 701-109(2), because the possession and paraphernalia offenses and the distribution offenses "[arose] from the same episode."

As discussed more fully infra, we hold that the ICA erred in affirming the circuit court's denial of Akau's motion to dismiss. Accordingly, we reverse the ICA's October 11, 2007 judgment on appeal and the circuit court's October 15, 2004 judgment of conviction in the drug buy case.

A. Factual and Procedural Background Leading Up to the Drug Buy Case

The following undisputed findings of facts (FOFs) are taken from the circuit court's order denying Akau's motion to dismiss the drug buy case:

1. On October 8, 2002, fronting 825 Keeaumoku Street, an undercover Honolulu Police Department (hereinafter "HPD") police officer purchased 0.121 grams of crystal methamphetamine from [Akau] for twenty dollars.

2. On October 22, 2002, fronting 825 Keeaumoku Street, a second undercover police officer purchased 0.094 grams of crystal methamphetamine from [Akau] for twenty dollars.

. . . .

4. On November 21, 2002, inside the men's restroom of Daiei located at 801 Kaheka Street, the second undercover police officer purchased 0.158 grams of crystal methamphetamine from [Akau for twenty dollars].

5. Based on the [three] undercover transactions, a search warrant was obtained and executed on [Akau] and his personal effects on November 26, 2002. [Akau] was never arrested for the [three] underlying drug transactions.4

6. Upon execution of the search warrant fronting 835 Keeaumoku Street, 0.351 grams of crystal methamphetamine were found in [Akau's] possession, which resulted in [Akau's] arrest for [p]romoting a [d]angerous [d]rug in the [t]hird [d]egree, in violation of [HRS § 712-1243], and [u]nlawful [u]se of [d]rug [p]araphernalia, in violation of HRS [§] 329-43.5(a)[.]

7. On December 5, 2002 [Akau] was charged via complaint with [p]romoting a [d]angerous [d]rug in the [t]hird [d]egree and [u]nlawful [u]se of [d]rug [p]araphernalia[] in [the search warrant case], based upon the illegal narcotic and drug paraphernalia recovered during the execution of the search warrant.

8. On February 6, 2003, [Akau] pled [n]o [c]ontest as charged in [the search warrant case].

9. On April 14, 2003, [Akau] was sentenced [as a first-time drug offender] to[,] inter alia, a term of five (5) years of probation (with one (1) year of incarceration), pursuant to HRS [§] 706-622.5 [(Supp.2003)] in [the search warrant case].

10. On October 21, 2003, [Akau] was indicted in the instant matter for three counts of [p]romoting a [d]angerous [d]rug in the [s]econd [d]egree, in violation of HRS [§ ]712-1242(1)(c) . . ., based on the October 8, 22, and November 21, 2002, undercover drug transactions.

B. Motion to Dismiss the Drug Buy Case

On March 22, 2004, Akau filed a motion to dismiss the drug buy case; pursuant to HRS §§ 701-111(1)(b) and 701-109(2). HRS § 701-111 provides in relevant part that:

When prosecution is barred by former prosecution for a different offense. Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution under any of the following circumstances:

(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 701-110(3) [(1993)5] and the subsequent prosecution is for:

. . . .

(b) Any offense for which the defendant should have been tried on the first prosecution under section 701-109 unless the court ordered a separate trial of the offense[.]

(Some emphases in original and some added.) In turn, HRS § 701-109, also known as "the compulsory joinder of offenses requirement," State v. Aiu, 59 Haw. 92, 95, 576 P.2d 1044, 1047 (1978), provides in relevant part that:

(2) Except as provided in subsection (3) of this section [(authorizing the court to order separate trials), quoted infra note 10,] a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.

(Emphases added.) Based on these two statutes, Akau argued that the undercover drug buys were "part and parcel of a search warrant and as such, both the purchase [of the drugs] and the issuance of a search warrant can and should be deemed `the same episode.'" The prosecution opposed Akau's motion. A hearing was held on May 13, 2004 at which time Akau called Lawrence Grean, the head of the Screening Intake Division at the Prosecuting Attorney's Office, to testify regarding the circumstances under which undercover buys or sales of narcotics that lead to a search warrant are prosecuted or are not prosecuted. Specifically, the following testimony was elicited:

Q: [By Akau's Counsel] . . . Now, in those cases where the undercover or the confidential informant sales/buys has resulted in search warrants, is it the practice of your office, Mr. Grean, to then prosecute the actual buys and/or sales in spite of the fact that the search warrant case has been prosecuted? Do you understand what I'm driving at?

A: [By Grean] I — I think so. The answer to that is it depends.

Q: All right. And will you please elucidate all of us as to why it depends?

A: Well, if you have undercover police officers — let's take that scenario —

Q: Thank you.

A: — and they make three or four buys from a suspect, and then as a result of those buys the search warrant is prepared and executed, —

Q: Yes?

A: — it's quite possible that the undercover buys cannot go forward because the police officer, the undercover officer, is still working undercover and cannot surface at that time.

Q: And then?

A: So the prosecutor's office would go ahead with the search warrant case. And at a later date, when it's — when the undercover officer is going to be available and surface, then we would go ahead with those cases.

. . . .

Q: Now, with respect to the buys/sales involving an undercover officer, you mentioned a circumstance under which sometimes those cases would be postponed, to wit, that the officer is still serving in an undercover capacity and therefore your office has to wait until — until that — that person's undercover status has been lifted. Is that true?

A: Right.

. . . .

Q: . . . Off the top of your mind, you cannot recollect a case where an undercover officer has done the buy and the sale and which then leads of course to a search warrant on a suspect; right? The suspect is —

A: The answer is yes.

Q: Right. And the suspect is prosecuted on the search warrant case but then is not prosecuted for the buys and sales, even though there was an undercover officer involved in the undercover buys and sales.

. . . .

A: Well, it — if the undercover officer has let's say made four buys and he can't surface at the — at the time of the buys, and he does...

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