State v. Motta

• Decision Date: 27 January 1983
• Docket Number: No. 8380,8380
• Citation: 657 P.2d 1019,66 Haw. 89
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. David K. MOTTA, also known as Bimbo, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1019

657 P.2d 1019

66 Haw. 89

STATE of Hawaii, Plaintiff-Appellee, v. David K. MOTTA, also known as Bimbo, Defendant-Appellant.

No. 8380.

Supreme Court of Hawai'i.

Jan. 27, 1983.

As Amended Jan. 31, 1983.

Syllabus by the Court

Where an indictment for burglary is challenged only after conviction, it will be liberally construed, and where it tracks the statute and there is no prejudice or surprise to the defendant, the general allegation of entering a building with intent to commit a crime against persons or property will be upheld.

James D. Comack, Honolulu (Milton S. Tani and Alvin T. Sasaki, Deputy Public Defenders, Honolulu, on brief), for defendant-appellant.

Alexandra Kaan, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before LUM, Acting C.J., NAKAMURA, PADGETT and HAYASHI, JJ., and CHANG, Circuit Judge, assigned by reason of vacancy.

PADGETT, Judge.

Defendant-Appellant David Kalei Motta (Motta) appeals his jury conviction for burglary in the second degree. Motta's contention on appeal is that the grand jury indictment against him failed to allege the specific crime against a person or property which he intended to commit when entering the building. He argues that such an allegation is an essential element in charging the offense of burglary, and therefore, his conviction should be reversed.

At the outset, we decide that since Motta failed to raise any objection to the indictment until after trial, it must be liberally construed. ¹ We are mindful that the failure of an indictment to state an offense is a fundamental defect which can be raised "at any time during the pendency of the proceeding" (HRPP Rule 12(b)(2)), but we choose to adopt the rule followed in most federal courts of liberally construing indictments challenged for the first time on appeal. U.S. v. Coleman, 656 F.2d 509, 510-11 (9th Cir.1981); U.S. v. Previte, 648 F.2d 73, 80 (1st Cir.1981); U.S. v. Hart, 640 F.2d 856, 857-58 (6th Cir.), cert. denied, 451 U.S. 992, 101 S.Ct. 2334, 68 L.Ed.2d 853 (1981); U.S. v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977); Kaneshiro v. U.S., 445 F.2d 1266, 1269 (9th Cir.1971), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971); U.S. v. Norman, 391 F.2d 212, 213 (6th Cir.1968); U.S. v. Thompson, 356 F.2d 216, 226 (2nd Cir.), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1965); Clay v. U.S., 326 F.2d 196, 198 (10th Cir.1963). See also, 1 Wright, Federal Practice and Procedure, Criminal, § 123 at 354-55 (1982).

The Second Circuit has expressed this post-conviction liberal construction rule as follows:

Technically, a claim that the indictment does not charge an offense may be raised on a motion in arrest of judgment.... But the courts of the United States long ago withdrew their hospitality toward technical claims of invalidity of an indictment first raised after trial, absent a clear showing of substantial prejudice to the accused--such as a showing that the indictment is "so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had."

U.S. v. Thompson, 356 F.2d at 226. The Ninth Circuit has said that

although such defects are never waived, indictments which are tardily challenged are liberally construed in favor of validity.... [W]hen an indictment is not challenged before the verdict, it is to be upheld on appeal if " 'the necessary facts appear in any form or by fair construction can be found within the terms of the indictment.' "

U.S. v. Pheaster, 544 F.2d at 361, citing Kaneshiro v. U.S., 445 F.2d at 1269, quoting Hagner v. U.S., 285 U.S. 427, 433, 52 S.Ct. 417, 420, 76 L.Ed. 861 (1932). In similar vein, the Sixth Circuit has recently said that "unless the defendant can show prejudice, a conviction will not be reversed where the indictment is challenged only after conviction unless the indictment cannot within reason be construed to charge a crime." U.S. v. Hart, 640 F.2d at 857-58. See also U.S. v. Previte, 648 F.2d at 80.

Our adoption of this liberal construction standard for post-conviction challenges to indictments means we will not reverse a conviction based upon a defective indictment unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime.

Although the Intermediate Court of Appeals in State v. Tuua, 3 Haw.App. 287, ---, 649 P.2d 1180, 1185-86 (1982), concluded that our decision in State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), rejected the liberal rule in a situation where the alleged defect was raised for the first time after a conviction, we read Jendrusch as neither rejecting nor expressly adopting the liberal rule. In Jendrusch we held that a complaint for disorderly conduct was fatally defective because the charge only contained allegations that the defendant intended to cause "public inconvenience, annoyance or alarm." We noted that an allegation of an "intent to cause physical inconvenience or alarm by a member or members of the public" is a necessary element. We found that the complaint "by any fair construction" was "constitutionally insufficient and therefore fatally defective" because we found no way to construe the charge as alleging either actual or threatened physical inconvenience or alarm. Using the language of these liberal construction cases we would still find that the charge in Jendrusch was "so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had."

Analyzing Motta's indictment under the principles of liberal construction, we determine that Motta has not been prejudiced and that the indictment can, "within reason" be construed to charge the crime of burglary in the second degree.

The indictment against Motta reads as follows:

On or about 10th day of July, 1980, ... DAVID KALEI MOTTA, ... did intentionally enter into or remain unlawfully in a building, to wit, Waiau Elementary School, ... with intent to commit therein a crime against a person or property rights, thereby committing the offense of Burglary in the Second Degree in violation of Section 708-811 of the Hawaii Revised Statutes.

Motta argues that an allegation of the specific underlying crime is an essential element for an offense of burglary, and that since the indictment does not identify the particular offense he allegedly intended to commit inside the school, the indictment is fatally defective.

The State's view is that the statute under which Motta was indicted, HRS § 708-811, burglary in the second degree, requires only a generalized intent to commit a crime, ² and that since the indictment is drafted in substantially the same wording as the statute, the indictment is sufficient to state the offense of burglary in the second degree, even though the underlying offense was not specified.

Some jurisdictions agree with the State's view that where the statute for burglary requires only a general felonious or criminal intent, it is not necessary for the charging instrument to specify the crime the accused allegedly intended to commit. Commonwealth v. Madison, 263 Pa.Super. 206, 213, 397 A.2d 818, 822 (1979); Commonwealth v. Wilks, 250 Pa.Super. 182, 189, 378 A.2d 887, 890 (1977); State v. Murie, 140 Wash. 71, 248 P. 79, 80 (1926). The general rule, however, in most jurisdictions is that an indictment for burglary is defective when it fails to specify the particular ulterior crime intended, even when the required intent, as defined by statute, is simply the intent to commit "a felony" or "a crime." 13 Am.Jur.2d, Burglary, § 36, p. 341 (196...