State v. Feliciano

• Decision Date: 22 October 1980
• Docket Number: No. 6724,6724
• Citation: 618 P.2d 306,62 Haw. 637
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. David FELICIANO, Jr., also known as David Tindoc Feliciano, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 306

618 P.2d 306

62 Haw. 637

STATE of Hawaii, Plaintiff-Appellee, v. David FELICIANO, Jr., also known as David Tindoc Feliciano Defendant-Appellant.

No. 6724.

Supreme Court of Hawai'i.

Oct. 22, 1980.

Syllabus by the Court

1. Under HRS § 701-109(4)(a), Reckless Endangering in the Second Degree is a lesser included offense of attempted murder.

2. An offense is included in an offense charged in the indictment or information when it is established by proof of the same or less than all the facts required to establish the offense charged. Simply put, an offense is included if it is impossible to commit the greater without also committing the lesser. HRS § 701-109(4)(a).

3. On appeal, instructions must be considered in their entirety to determine whether error was committed.

4. Judge-jury communications in the form of supplemental instructions must not confuse or leave an erroneous impression in the minds of the jurors on the applicable legal standards.

5. The trial court must properly instruct the jury on the law so that the jury is given proper guidance in considering the issues before it.

6. A defendant who has been convicted of a lesser included offense is automatically acquitted of the greater charge, thereby barring retrial on the charged offense.

Renee M. L. Yuen, Sp. Deputy Public Defender, Honolulu, for defendant-appellant.

Patrick W. Border, Deputy Pros. Atty., Honolulu, (Stanley M. Chow on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA, MENOR, and LUM, JJ., and MARUMOTO, Retired Justice, assigned by reason of vacancy.

OGATA, Justice.

Defendant-appellant David Feliciano (hereinafter appellant) was indicted by the Oahu Grand Jury for the attempted murder of Edgar Blue in violation of HRS § 705-500 and § 707-701. Appellant allegedly shot at the victim Blue at the Varona Social Club in Ewa Beach, Oahu, on December 3, 1976, at approximately 11:00 p. m. This incident stemmed from attempts by Blue and others to be participants of a party being held at the club. ¹ Appellant was found guilty by a Circuit Court jury of Reckless Endangering in the Second Degree in violation of HRS § 707-714. The trial court sentenced appellant to six months in jail.

Appellant raises two contentions in his briefs and oral argument. First, he contends that the trial court's response to the jury concerning the lesser included offense of reckless endangering was insufficient to properly guide the jury, thus rendering the instruction vague and confusing. Second, he argues that upon reversal of the original judgment, HRS § 701-110 would bar retrial on the attempted murder charge.

We are of the opinion that the trial court's response to the jury's inquiry rendered the instruction originally given vague and confusing. Therefore, we reverse the judgment of the court below. We also believe that a retrial on the attempted murder charge is barred by HRS § 701-110.

I.

Initially, we must consider whether the trial court was correct in giving the instruction on reckless endangering in the second degree. Put another way, is reckless endangering in the second degree a lesser included offense of attempted murder. We believe that reckless endangering in the second degree is a lesser included offense of attempted murder under HRS § 701-109(4)(a).

HRS § 701-109(4)(a) states:

A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged.

This statutory provision codifies the common law rule on lesser included offenses. See Model Penal Code, § 1.08(4), Comment p. 40 (Tentative Draft No. 5, 1956). Simply put, an offense is included if it is impossible to commit the greater without also committing the lesser. Olais-Castro v. United States, 416 F.2d 1155, 1157 (9th Cir. 1969).

Attempted murder is established when a defendant intentionally or knowingly attempted to cause the death of another through an act which is a substantial step in the course of conduct intended to culminate in the crime of murder. HRS § 707-701 and § 705-500. Reckless endangering in the second degree is proved by a defendant's conduct which recklessly places another person in danger of death or serious bodily injury. HRS § 707-714(1).

The difference between attempted murder and reckless endangering in the second degree is one of degree. Reckless endangering only requires a reckless state of mind which is less culpable than the intentional or knowing requirement necessary for attempted murder. ² See Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977); People v. Higgins, 86 Ill.App.2d 202, 229 N.E.2d 161 (1967).

The end result of reckless endangering and attempted murder is the same. In both instances the victim does not die but is placed in jeopardy of being injured or is being injured by appellant's conduct. Thus having the same end result and with a lesser degree of culpability in reckless endangering as compared to attempted murder, reckless endangering in the second degree is a lesser included offense of attempted murder under HRS § 701-109(4)(a). Proof of the attempted murder charge would establish every element of reckless endangering in the second degree.

Moreover, the legislative scheme places reckless endangering in the same classification as murder and attempted murder, offenses against persons. The same interest is being protected by both these statutes. See Commonwealth v. Polimeni, supra; Commonwealth v. Garcia, supra.

We hold that the trial court was correct in instructing the jury that reckless endangering in the second degree is a lesser included offense of attempted murder under HRS § 701-109(4)(a).

II.

During the charge to the jury, the trial judge instructed the jurors that they could find the appellant guilty as charged of attempted murder or a lesser included offense. The court instructed the jury that the lesser included offenses of attempted murder were attempted manslaughter, assault in the first degree, assault in the third degree and reckless endangering in the second degree.

The Court's instruction on reckless endangering in the second degree read in part A person commits the offense of Reckless Endangering in the Second Degree if he engages in conduct which recklessly places another person in danger of death or serious bodily injury.

To find the defendant guilty of this charge, you must find that the Prosecution has proven beyond a reasonable doubt that the defendant's conduct recklessly placed Edgar Blue in danger of death or serious bodily injury. (Emphasis added.)

This instruction required the jury to find specifically that Edgar Blue was placed in danger of death or serious bodily injury by appellant's conduct. The instruction also prescribed that the degree of harm to guide the jury is danger of death or serious bodily injury.

While the jury was deliberating, it sent a note to the court which inquired: "Does reckless endangering also include putting bystanders in jeopardy of bodily harm ?" (Emphasis added.) Despite the objections of defense counsel, the court responded to the question simply with a "yes." Ten minutes later, the jury returned its verdict and appellant was found guilty of reckless endangering in the second degree.

On appeal, instructions must be considered in their entirety to determine whether error was committed. State v. McNulty, 60 Haw. 259, 588 P.2d 438 (1978); State v. Yoshida, 45 Haw. 50, 64, 361 P.2d 1032, 1040 (1961). It is also well settled that an instruction may be supplemented by another. State v. Yoshida, supra.

By its question, the jury sought clarification on the law from the court. The trial court's affirmative response to the jury question was a supplemental instruction to the original jury instruction on reckless endangering in the second degree. See United States v. Walker, 575 F.2d 209 (9th Cir.), cert. denied, 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2d 325 (1978); State v. Yoshida, supra. We believe that the supplemental instruction rendered the original instruction on reckless endangering in the second degree vague and confusing. As a consequence, the jury was misled by the standards enunciated in the supplemental instruction which resulted in appellant's conviction on reckless endangering in the second degree.

We realize that the trial court had a difficult task in responding to such a question from a deliberating jury. The Ninth Circuit in United States v. Walker, supra, recognized this problem and stated:

A trial judge is often reluctant to respond to questions in language similar to that used by the jury, particularly where inquiries are phrased as hypothetical cases or as questions requiring a categorical yes or no answer. Questions or illustrations from the jury may be phrased so that a simple affirmative or negative response might favor one party's position, place undue weight on certain evidence, or indicate that the trial judge believes certain facts to be true when such matters should properly be determined by the jury. Because the jury may not enlist the court as its partner in the fact-finding process, the trial judge must proceed circumspectly in responding to inquiries from the jury. The court may properly attempt to avoid intrusion on the jury's deliberations by framing responses in terms of supplemental instructions rather than following precisely the form of question asked by the jury.

575 F.2d at 214. The trial court created the problems mentioned above by its simplistic response to the jury question.

In State v. Laurie, 56 Haw. 664, 672, 548 P.2d 271 (1976), we held that the trial court's response to the jury question on mental damages by rereading portions of the original instruction was not error. We found the procedure utilized by the court in Laurie, did...