State v. Codiamat
| Decision Date | 27 December 2013 |
| Docket Number | No. SCWC–11–0000540.,SCWC–11–0000540. |
| Citation | 317 P.3d 664,131 Hawai'i 220 |
| Parties | STATE of Hawai‘i, Petitioner/Plaintiff–Appellant, v. Marianne L. CODIAMAT, Respondent/Defendant–Appellee. |
| Court | Hawaii Supreme Court |
Brandon H. Ito, for petitioner.
James S. Tabe and Craig W. Jerome, for respondent.
Petitioner/Plaintiff–Appellant State of Hawai‘i (State) asks us to consider whether its complaint against Respondent/Defendant–Appellee Marianne L. Codiamat (Codiamat) provided sufficient notice to Codiamat of the charged offense to meet the constitutional requirements of due process. The State's complaint charged Codiamat with harassment, in violation of Hawai‘i Revised Statutes (HRS) § 711–1106(1)(a) (Supp.2010).1 Before the commencement of trial, the District Court of the First Circuit (district court)2 granted Codiamat's motion to dismiss the State's complaint on the ground that it left the defendant unsure of what offense was charged because it was pleaded in the disjunctive using the conjunction "or."
On application for writ of certiorari to this court, the State argues: (1) that the Intermediate Court of Appeals (ICA) erred in affirming the dismissal because the State did not charge non-synonymous alternative means disjunctively; (2) that the ICA's dismissal is inconsistent with Hawai‘i precedent allowing some use of the disjunctive in charging documents; and (3) that Hawai‘i precedent limiting the use of disjunctive charging should be overturned.
We hold that the complaint in this case met due process requirements, regardless of whether one concludes that the disjunctively charged acts were synonymous or non-synonymous. Therefore, it is unnecessary for us to reach the question of whether the acts charged disjunctively were synonymous. The acts charged disjunctively were contained within a single subsection of a statute and were reasonably related so that the complaint sufficiently apprised the defendant of the nature of the charged acts and allowed the defendant to prepare a defense.
We vacate the judgment of the ICA affirming the district court's notice of entry of judgment and/or order and remand this case to the district court for further proceedings.
On January 24, 2011, the State charged Codiamat with harassment in violation of HRS § 711–1106(1)(a).3 The complaint stated:
On or about the 6th day of January, 2011, in the City and County of Honolulu, State of Hawai‘i, MARIANNE L. CODIAMAT, with intent to harass, annoy, or alarm [Complainant], did strike, shove, kick, or otherwise touch [Complainant] in an offensive manner or subject [Complainant] to offensive physical contact, thereby committing the offense of Harassment, in violation of Section 711–1106(1)(a) of the Hawai‘i Revised Statutes .
(Emphasis added).
On June 15, 2011, at a pretrial hearing, Codiamat orally moved to dismiss the complaint based on State v. McCarthy, No. 29701, 124 Hawai‘i 129, 2010 WL 3433722 (App. Aug. 31, 2010) (mem. op.),4 arguing that the disjunctive wording in the complaint made it difficult to prepare a defense.5 Over the State's objection, the district court granted Codiamat's motion and dismissed the complaint without prejudice.
On appeal to the ICA, the State argued that McCarthy only prohibits charging in the disjunctive when the acts, or the results of the acts, charged disjunctively are non-synonymous. It maintained that the acts described in Codiamat's complaint—"strike, shove, kick, or otherwise touch in an offensive manner or subject to offensive physical contact"—are simply multiple descriptions of "an offensive touching." The State reasoned that the disjunctive charging did not deprive Codiamat of fair notice because the disjunctive was only used to link synonymous words.
In her answering brief, Codiamat argued that the reasoning in McCarthy applied here to prohibit disjunctive charging. Specifically, Codiamat argued that (1) strike, (2) shove, (3) kick, (4) otherwise touch in an offensive manner, and (5) subject to offensive physical contact each have a distinct meaning. Codiamat concluded that by charging these acts disjunctively, "[She] was not given proper notice of what she was actually being charged with doing."6
The ICA affirmed the district court's judgment, concluding that "[b]ecause the charge was pleaded in the disjunctive, it did not sufficiently apprise Codiamat of what she must be prepared to meet." See State v. Codiamat, No. CAAP–11–0000540, 128 Hawai‘i 130, 2012 WL 3113898, at *1 (App. July 31, 2012) (SDO). The ICA first established that "touching another person in an offensive manner" is not synonymous with "subjecting the other person to offensive physical contact." Id. at *1–2. Relying upon its earlier holding in State v. Pesentheiner, 95 Hawai‘i 290, 22 P.3d 86 (App.2001), the ICA clarified that " ‘subject[ing] the other person to offensive physical contact’ " has a separate meaning from offensive touching, namely, " ‘contact with an item physically appurtenant to the body.’ " Id. at *2 (quoting Pesentheiner, 95 Hawai‘i at 294–95, 22 P.3d at 90–91). The ICA then cited State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), for the principal that " ‘[w]here a statute specifies several ways in which its violation may occur, the charge may be laid in the conjunctive but not in the disjunctive.’ " Id. at *2–3 (quoting Jendrusch, 58 Haw. at 283 n. 4, 567 P.2d at 1245 n. 4). The ICA therefore concluded that the disjunctive phrasing in the complaint constituted a fatal defect and held that the district court did not err in dismissing the case without prejudice. Id. at *3.
Chief Judge Nakamura filed a concurring opinion in which he argued that the " Jendrusch rule7 cannot withstand rational scrutiny." Id. at *4 (Nakamura, C.J., concurring). He contended that charging in the conjunctive provides no greater notice to the defendant than charging in the disjunctive, explaining that "[b]ecause the State can establish the harassment offense against Codiamat by proving either of the charged alternative means of committing the offense, charging her in the disjunctive clearly provided her with fair notice of the accusation and what she was required to meet." Id. at *4. Chief Judge Nakamura opined that he believed this court should re-examine and overturn its precedent limiting the use of disjunctive pleading. Id. at *5–6.
Codiamat timely filed an application for writ of certiorari on September 7, 2012. This court accepted Codiamat's application on October 22, 2012, and oral argument was heard on November 29, 2012.
A. Sufficiency of a Complaint
The issue of whether a complaint provides sufficient notice to a defendant is reviewed under the de novo, or right/wrong, standard. State v. Merino, 81 Hawai‘i 198, 212, 915 P.2d 672, 686 (1996).
Hawai‘i takes a nontechnical approach to pleading standards. The Sixth Amendment to the United States Constitution and article I, section 14 of the Hawai‘i Constitution mandate that a "charge must be worded in a manner such that the nature and cause of the accusation could be understood by a person of common understanding." State v. Sprattling, 99 Hawai‘i 312, 318, 55 P.3d 276, 282 (2002) (internal quotation marks and alterations omitted) (quoting State v. Israel, 78 Hawai‘i 66, 71, 890 P.2d 303, 308 (1995) ). The complaint must "inform[ ] the accused ‘fully’ of the nature and cause of the accusation against him or her, and sufficiently appris[e] the defendant of what he or she must be prepared to meet to defend against the charges." State v. Nesmith, 127 Hawai‘i 48, 66, 276 P.3d 617, 635 (2012) (Acoba, J., concurring and dissenting).
Hawai‘i courts have never enforced a strict rule against charging in the disjunctive. "The rule against disjunctive allegations has been modified and relaxed in Hawai‘i in cases of offenses which are ‘constituted of one or more of several acts or which may be committed by one or more of several means or with one or more of several intents or which may produce one or more of several results.’ " Territory v. Tamashiro, 37 Haw. 552, 553 (1947) (quoting Revised Laws of Hawai‘i (RLH) § 10804 (1945)).
In Jendrusch, the first modern case in which this court addressed the issue of disjunctive charging, the defendant was charged with disorderly conduct in violation of HRS § 711–1101(1).8 58 Haw. at 280, 567 P.2d at 1243. The complaint charged the defendant disjunctively with violating subsection (1)(b) or subsection (1)(c) of the statute.9 Jendrusch, 58 Haw. at 280, 567 P.2d at 1243–44. The court held that the complaint was insufficient on other grounds.10
Id. at 282, 567 P.2d at 1245. But, in dicta, the court stated:
The type of conduct proscribed by subsection (1)(b) is not factually synonymous with that proscribed by subsection (1)(c). In charging the defendant in the disjunctive rather than in the conjunctive, it left the defendant uncertain as to which of the acts charged was being relied upon as the basis for the accusation against him. Where a statute specifies several ways in which its violation may occur, the charge may be laid in the conjunctive but not in the disjunctive.
Id. at 283 n. 4, 567 P.2d at 1245 n. 4 (citing Territory v. Lii, 39 Haw. 574 (1952) ).
Later cases clarified permissible means of charging a defendant in the alternative. In an indictment for an offense that may be committed by a variety of acts, two or more of those acts may be charged in multiple counts or conjunctively in one count. See State v. Lemalu, 72 Haw. 130, 134, 809 P.2d 442, 444 (1991) (); see also Lii, 39 Haw. at 578–79 (). However, the preferred method for charging an offense that may be committed in...
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