State v. Cummings

• Decision Date: 24 February 2003
• Docket Number: No. 23905.,23905.
• Citation: 101 Haw. 139,63 P.3d 1109
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Craig Neal CUMMINGS, Defendant-Appellant.
• Court: Hawaii Supreme Court

63 P.3d 1109

101 Haw. 139

STATE of Hawai`i, Plaintiff-Appellee, v. Craig Neal CUMMINGS, Defendant-Appellant.

No. 23905.

Supreme Court of Hawai`i.

February 24, 2003.

Robert D.S. Kim, on the briefs, for the defendant-appellant Craig Neal Cummings.

Linda L. Walton, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellee State of Hawai`i.

LEVINSON and ACOBA, JJ., and Intermediate Court of Appeals Judge LIM, assigned by reason of vacancy, and MOON, C.J., dissenting, with whom NAKAYAMA, J., joins.

Opinion of the Court by LEVINSON, J.

The defendant-appellant Craig Neal Cummings appeals from the September 20, 2000 judgment of conviction and sentence of the district court of the third circuit, the Honorable Joseph P. Florendo presiding, convicting him of and sentencing him for the offenses of driving under the influence of intoxicating liquor (DUI), in violation of HRS § 291-4(a)(1) (Supp.1998),¹ operating a vehicle without no-fault insurance, in violation of HRS § 431:10C-104(a) (Supp.1998), and operation of a motor vehicle without a certificate of inspection, in violation of HRS § 286-25 (1993). Cummings urges this court to reverse his DUI conviction and sentence on the bases that the district court erred: (1) in denying his oral motion to dismiss the DUI charge and/or for judgment of acquittal at the conclusion of the prosecution's case-in-chief because the charge, as set forth in the complaint, failed to allege the material elements of DUI; (2) in admitting the testimony of Michael Beshoner, M.D., regarding his treatment of Cummings following the accident because the testimony was privileged pursuant to Hawai`i Rules of Evidence (HRE) Rule 504 (1993); and (3) in finding that the vehicle that Cummings was operating crossed into the opposite lane of travel, notwithstanding evidence presented by the defense to the contrary.

For the reasons discussed infra, we hold that the district court erred in denying Cummings's motion to dismiss Count I of the complaint on the basis that it failed to allege the material elements of DUI. Because the foregoing is outcome dispositive of the present appeal, we do not address Cummings's other points of error. Accordingly we reverse Cummings's conviction of and sentence for DUI.²

I. BACKGROUND

On August 11, 1999, the prosecution charged Cummings by complaint with DUI, in violation of HRS § 291-4(a)(1) (Count I), see supra note 1, negligent injury in the third degree, in violation of HRS § 707-706(1) (1993) (Count II), operating a vehicle without no-fault insurance, in violation of HRS § 431:10C-104(a) (Count III), and operation of a motor vehicle without a certificate of inspection, in violation of HRS § 286-25 (Count IV). Count II of the complaint was subsequently dismissed with prejudice, and, on August 16 and September 20, 2000, the district court conducted a bench trial with respect to the remaining charges, in the course of which the prosecution adduced the following evidence.

On March 11, 1999, Cummings was driving a jeep on Palani Road in the County of Hawai`i when his vehicle crossed the center line and collided head-on with a vehicle driven by Tavita Laasaga. Randall Acquino, a passenger in Laasaga's car, exited the vehicle and approached Cummings's jeep, whereupon Cummings apologized to Acquino. Acquino noticed that Cummings was slurring his speech and smelled "a lot of liquor" on Cummings's breath.

Hawai`i County Police Department (HCPD) Officer Robert Sakata arrived at the scene shortly thereafter and noticed that Cummings's eyes were bloodshot and glassy, that his speech was slurred, that he appeared as if he was "in a daze," and that there was a "very strong" "odor of alcoholic beverage on his breath." Hawai`i County Firefighter Mark Evans, who also arrived at the scene shortly after the accident, found Cummings to be conscious but uncooperative and likewise noticed "a strong odor of alcohol" on Cummings's breath.

Cummings was subsequently transported to Kona Community Hospital (KCH) where Dr. Beshoner, a physician certified in emergency medicine, treated him for his injuries. Dr. Beshoner noted that Cummings "had a strong smell of alcohol on the breath, was acting belligerent and uncooperative, and appeared. . . to be clinically . . . intoxicated."

At trial, both Acquino and Laasaga testified on behalf of the prosecution that Cummings's jeep had crossed the center line of Palani Road and had collided with their vehicle. In addition, HCPD Officer Bradley Freitas testified that his investigation of the scene, including the accident debris field, indicated that the collision had occurred in Laasaga's lane of travel. James Mitchell, however, testified for Cummings as an expert in the field of accident reconstruction, that Laasaga's vehicle had crossed into Cummings's lane of travel, although he admitted that he had not viewed the scene of the accident until after the debris had been removed.

At the conclusion of the prosecution's case-in-chief, Cummings orally moved to dismiss and/or for judgment of acquittal with respect to the DUI charge, on the basis that Count I of the complaint had failed to state a material element of the offense.

Count I stated:

On or about the 11th day of March 1999, in Kona, County and State of Hawaii, Craig Neal Cummings did operate or assume actual physical control of the operation of a vehicle while under the influence of intoxicating liquor, thereby committing the offense of Driving Under the Influence of Intoxicating Liquor, in violation of Section 291-4(a)(1), Hawaii Revised Statues, as amended.

Cummings argued that the complaint failed to allege that he was under the influence of intoxicating liquor "in an amount sufficient to impair the person's normal mental faculties or ability to care for oneself and guard against casualty[,]" as required by HRS § 291-4(a)(1), see supra note 1. (Emphasis added.) The district court denied the motion, but allowed the prosecution to amend Count I to add the missing language.

At the conclusion of the trial on September 20, 2000, the district court found Cummings guilty as charged.

II. STANDARD OF REVIEW

"`Whether [a complaint] sets forth all the essential elements of [a charged] offense. . . is a question of law,' which we review under the de novo, or `right/wrong,' standard." State v. Merino, 81 Hawai`i 198, 212, 915 P.2d 672, 686 (1996) (quoting State v. Wells, 78 Hawai`i 373, 379, 894 P.2d 70, 76 (1995)) (some brackets added and some in original).

III. DISCUSSION

It is well settled that an "accusation must sufficiently allege all of the essential elements of the offense charged," a requirement that "obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]" State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977)[; accord State v. Israel, 78 Hawai`i 66, 69-70, 890 P.2d 303, 306-07 (1995); State v. Elliott, 77 Hawai`i 309, 311, 884 P.2d 372, 374 (1994)]. Put differently, the sufficiency of the charging instrument is measured, inter alia, by "whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he [or she] must be prepared to meet[.]" State v. Wells, 78 Hawai`i 373, 379-80, 894 P.2d 70, 76-77 (1995) (citations and internal quotation marks omitted) (brackets in original). "A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process." Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 (citations omitted).

Merino, 81 Hawai`i at 212,915 P.2d at 686 (some brackets added and some in original). In other words, an oral charge, complaint, or indictment that does not state an offense contains within it a substantive jurisdictional defect, rather than simply a defect in form, which renders any subsequent trial, judgment of conviction, or sentence a nullity. See Israel, 78 Hawai`i at 73,890 P.2d at 310 (quoting Elliott, 77 Hawai`i at 311,884 P.2d at 374 (quoting Jendrusch, 58 Haw. at 281,567 P.2d at 1244)); Elliott, 77 Hawai`i at 312,884 P.2d at 375 ("the omission of an essential element of the crime charged is a defect in substance rather than form" (quoting Jendrusch, 58 Haw. at 281,567 P.2d at 1244)); Territory v. Koa Gora, 37 Haw. 1, 6 (1944) (failure to state an offense is a "jurisdictional point"); Territory v. Goto, 27 Haw. 65, 102 (1923) (Peters, C.J., concurring) ("[f]ailure of an indictment[,] [complaint, or oral charge] to state facts sufficient to constitute an offense against the law is jurisdictional[;] . . . an indictment[,] [complaint, or oral charge] . . . is essential to the court's jurisdiction," (brackets added)); HRS § 806-34 (1993) (explaining that an indictment may state an offense "with so much detail of time, place, and circumstances and such particulars as to the person (if any) against whom, and the thing (if any) in respect to which the offense was committed, as are necessary[,]" inter alia, "to show that the court has jurisdiction, and to give the accused reasonable notice of the facts"). That being the case, reversal of a conviction obtained on such a defective accusation does not require a showing of prejudice. See Elliott, 77 Hawai`i at 311,884 P.2d at 374 (agreeing with the ICA that inasmuch as defendant could not demonstrate and did not assert prejudice where an element was omitted from an oral charge, "[t]he question, then, is whether the oral charges can be reasonably construed to charge [the defendant] with the offenses [of which the defendant was convicted]" (some brackets added and some in original) (citation and quotation signals omitted)); State v. Yonaha, 68 Haw. 586, 586-87, 723 P.2d 185, 185-86 (1986) (conviction obtained on oral charge reversed for failure to state "element" of intent; prejudice not addressed); State v. Faulkner, 61 Haw. 177, 177-78, 599 P.2d 285, 285-86 (1979) (same); State v. Borochov...