State v. Murray, 27549.

CourtSupreme Court of Hawai'i
Writing for the CourtAcoba
Citation169 P.3d 955
PartiesSTATE of Hawai`i, Respondent/Plaintiff-Appellee v. James MURRAY, Petitioner/Defendant-Appellant.
Docket NumberNo. 27549.,27549.
Decision Date29 October 2007
169 P.3d 955
STATE of Hawai`i, Respondent/Plaintiff-Appellee
v.
James MURRAY, Petitioner/Defendant-Appellant.
No. 27549.
Supreme Court of Hawai`i.
October 29, 2007.

[169 P.3d 956]

Taryn R. Tomasa, Deputy Public Defender, for petitioner/defendant-appellant.

Brandon Paredes, Deputy Prosecuting Attorney, County of Maui, for respondent/plaintiff-appellee.

MOON, C.J., LEVINSON, ACOBA, and DUFFY, JJ.; and NAKAYAMA, J., Dissenting.

Opinion of the Court by ACOBA, J.


Petitioner/Defendant-Appellant James Murray (Petitioner) filed an application for

169 P.3d 957

writ of certiorari1 on April 27, 2007, requesting that this court review the February 6, 2007 judgment of the Intermediate Court of Appeals (the ICA), issued pursuant to its January 19, 2007 memorandum opinion2 affirming the September 13, 2005 judgment of the family court of the second circuit (the court),3 convicting Petitioner of Abuse of a Family or Household Member as a class C felony, HRS §§ 709-906(1) and (7) (Supp. 2006).4

Respondent/Plaintiff-Appellee State of Hawai`i (Respondent) did not file a memorandum in opposition.

I.

The following matters, some verbatim, are taken from the parties' submissions and from the record.

During motions in limine, defense counsel stipulated to [Petitioner's] prior abuse convictions. The [court] never conducted a colloquy with [Petitioner] regarding the stipulation. Based on the stipulation, defense counsel requested that the [court] preclude the introduction of the priors. The [court] denied the defense counsel's request[.]

On the first day of evidence, [Respondent] read the stipulation into evidence. The [court] did not instruct the jury with a limiting instruction either before or after the introduction of the stipulation.

Jennifer Murray [(Jennifer)], [Petitioner's] estranged wife, testified that on the date of the incident, she and [Petitioner] were living separately .... [Petitioner] arrived at Jennifer's residence and demanded to see their daughter .... [Petitioner] pushed her causing Jennifer to fly forward but she did not fall. Jennifer did not feel pain from the push.

... Jennifer testified that [Petitioner] pushed her a second time. The second shove hurt Jennifer and she got upset. From behind, [Petitioner] grabbed Jennifer and caused scratches to her chest, redness, and red marks. Jennifer also testified that her right upper arm/shoulder hurt although there were no visible injuries. Later, a police officer arrived at the house and photographed scratch marks on Jennifer's right lower collar bone.

(Emphases added). Thereafter,

[a]n Amended Complaint filed on February 9, 2005 charged [Petitioner] with violating

169 P.3d 958

HRS § 709-906 by causing physical abuse to his wife, [Jennifer], on or about January 18, 2005, "within two (2) years of a second or subsequent conviction of Abuse of Family or Household Member."

However, "[d]uring the charge to the jury, the [court] failed to instruct the jury with a limiting instruction regarding [Petitioner's] prior convictions. . . ." (Emphasis added).

II.

Petitioner raises the following questions in his application:

1. Whether the ICA gravely erred in holding that where a violation of HRS § 709-906 is charged as a felony offense, the prior convictions constitute an element of the offense.

2. Whether the ICA gravely erred in holding that defense counsel's stipulation to an element of the offense constituted a tactical decision that can be made solely by counsel and, thus, that it did not require a knowing, intelligent, or voluntary waiver by the defendant of his right to have that element proven to a jury beyond a reasonable doubt.

3. Whether the ICA gravely erred in holding that the trial court's failure to instruct the jury with a limiting instruction regarding the defendant's prior convictions did not constitute reversible error.

(Brackets omitted.)

III.

As to the first question, Petitioner argues "[t]he offense of felony [a]buse is a recidivist statute where the prior convictions are extrinsic sentencing factors determined by the trial court" as opposed to a "status offense" where "the prior conviction is an element of the offense[,]" because (1) "the statute refers to the prior convictions in the penalty subsection of the statute, separate and apart from the definition of the offense[,]" (2) "[t]he legislature specifically stated that the amendments were to `clarify sentencing provisions[,]' not to add an element to the felony offense, see . . . Stand. Com. Rep. No. 1268 (2003) (emphasis added)[,]" and (3) "[t]he difference between HRS §§ 709-906(7) and 291E-61(b)(1)(4) [as construed in State v. Domingues, 106 Hawai`i 480, 107 P.3d 409 (2005), is that] HRS § 709-906(7) provides that `for a third or subsequent offense that occurs within two years of a second or subsequent conviction, the person shall be charged with a Class C felony' (emphasis added) [and i]n contrast, the prefatory language of HRS § 291E-61(b)(1)(4) stated that the individual `shall be sentenced.'"

In its answering brief, Respondent correspondingly argued that prior convictions constituted elements because (1) "[t]o be convicted under subsection (7) [of HRS § 709-906], a defendant must have committed `a third or any subsequent offense that occurs within two years of a second or subsequent conviction[ ]' ... [which] describes an attendant circumstance — an essential element — that [Respondent] needs to prove beyond a reasonable doubt[,]" (2) as in Domingues, "the prefatory language in HRS § 709-906(5)(a) and (b) and HRS § 709-906(7) describe attendant circumstances that are intrinsic to and enmeshed in the hierarchy of offenses that HRS § 709-906 . . . describes [and, a]s such, . . . the essential element that [Respondent must prove was that Petitioner] committed the instant abuse within two years of a second or subsequent conviction[,]" (3) "[i]n 1998, . . . [in] the creation of a felony abuse offense[,] . . . the legislature stated that . . . `an enhanced grade of offense for repeat criminal behavior sends a message to the repeat offender . . . and will be treated as a serious offense[,]' Sen. Stand. Comm. Rep. No. 3252, in 1998 Senate Journal, at 1314 (emphasis added)," (4) in 2002, the legislature, in amending subsection (7) to read, "[f]or a third or any subsequent offense ... that occurs within two years[,]" said that "[t]his measure ... limit[s] misdemeanors to the first and second offense, while making it a class C felony for any third and subsequent offense."5

169 P.3d 959
IV.

With reference to the first question, the ICA held "the fact that [Petitioner] committed his crime `within two (2) years of a second or subsequent conviction of Abuse of Family or Household Member' is an `intrinsic fact' that must be determined by the jury[,]" and (2) "[a] stipulation of that fact does not violate the defendant's due process rights by impermissibly lessening the prosecution's burden to prove that material element[, t]herefore, it is a tactical decision permissibly made by counsel for the defendant."

V.

On February 9, 2005, Respondent charged Petitioner by complaint as follows:

That on or about the 18th day of January, 2005, in the County of Maui, State of Hawaii, JAMES MURRAY within two (2) years of a second or subsequent conviction of Abuse of Family or Household Member in violation of Section 709-906 of the Hawaii Revised Statutes, did intentionally, knowingly or recklessly engage in and cause physical abuse of a family or household member, to wit Jennifer Murray, thereby committing the offense Felony Abuse of Family or Household Member in violation of Section 709-906(7) of the Hawaii Revised Statutes.

HRS § 709-906 (Supp.2004) states in pertinent part:

(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member.

...

....

(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:

(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

(b) For a second offense that occurs within one year of the first conviction, the person shall be termed a `repeat offender' and serve a minimum jail sentence of thirty days.

....

(7) For a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the person shall be charged with a class C felony.

(Emphasis added).

A.

Under HRS § 709-906 the prosecution would need to prove first that Petitioner "physically abuse[d] a family or household member" in violation of HRS § 709-906(1) and second that the violation was Petitioner's "third or any subsequent offense that occur[ed] within two years of a second or subsequent conviction ..." in violation of HRS § 709-906(7) as was charged in the complaint. HRS § 702-205 (1993) states:

The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as:

(a) Are specified by the definition of the offense, and

(b) Negative a defense (other than a defense based on the statute of limitations, lack of venue, or lack of jurisdiction).

Conduct is defined in HRS § 701-118(4) (1993) as "an act or omission, or, where

169 P.3d 960

relevant, a series of acts or a series of omissions, or a series of acts and omissions[.]" Furthermore, an act is defined under § 701-118(2) (1993) as a "bodily movement whether voluntary or involuntary[.]" Based on the foregoing definitions, the requisite conduct constituting a violation of HRS § 709-906 is some physical bodily movement. The requisite result of such conduct is physical abuse. The requisite attendant circumstances are that the object of the abuse has the attributes of a person who is a family or household member of the defendant.

Although the Hawai`i Penal Code does not define the term "attendant circumstances," in State v. Aiwohi, 109 Hawaii 115,...

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43 practice notes
  • State v. McDonnell, SCWC-14-0000355
    • United States
    • Supreme Court of Hawai'i
    • 28 d1 Agosto d1 2017
    ...upon request when the jury is authorized to consider evidence for one purpose but not another); State v. Murray, 116 Hawai'i 3, 18-19, 21, 169 P.3d 955, 970-71, 973 (2007) (stating that a limiting instruction pursuant to HRE Rule 105 may be necessary "to prevent potential prejudice to a def......
  • State v. Schnabel, No. SCWC–29390.
    • United States
    • Supreme Court of Hawai'i
    • 11 d5 Maio d5 2012
    ...and "gut" were two separate instances of misconduct, they are addressed together.38 As noted in State v. Murray, 116 Hawai‘i 3, 10 n. 8, 169 P.3d 955, 962 n. 8 (2007), HRS § 701–114 (1993) provides in relevant part that "no person may be convicted of an offense unless" "[e]ach element of th......
  • State Of Haw.‘i v. Stenger, No. 27511.
    • United States
    • Supreme Court of Hawai'i
    • 4 d4 Março d4 2010
    ...omitted); State v. Kassebeer, 118 Hawai‘i 493, 511, 193 P.3d 409, 427 (2008) (citation omitted); State v. Murray, 116 Hawai‘i 3, 14 n. 9, 169 P.3d 955, 966 n. 9 (2007) (citation omitted). Because of the trial court's duty to instruct the jury properly, this court has held that, “although as......
  • State ‘i v. Walsh, No. 29790.
    • United States
    • Supreme Court of Hawai'i
    • 23 d2 Agosto d2 2011
    ...there is a reasonable possibility that the error might have contributed to conviction.’ ” State v. Murray, 116 Hawai‘i 3, 14 n. 9, 169 P.3d 955, 966 n. 9 (2007) (quoting State v. Gonsalves, 108 Hawai‘i 289, 293, 119 P.3d 597, 601 (2005)). 47. Of course, as stated supra, the prosecution's su......
  • Request a trial to view additional results
44 cases
  • State v. McDonnell, SCWC-14-0000355
    • United States
    • Supreme Court of Hawai'i
    • 28 d1 Agosto d1 2017
    ...upon request when the jury is authorized to consider evidence for one purpose but not another); State v. Murray, 116 Hawai'i 3, 18-19, 21, 169 P.3d 955, 970-71, 973 (2007) (stating that a limiting instruction pursuant to HRE Rule 105 may be necessary "to prevent potential prejudice to a def......
  • State v. Schnabel, No. SCWC–29390.
    • United States
    • Supreme Court of Hawai'i
    • 11 d5 Maio d5 2012
    ...and "gut" were two separate instances of misconduct, they are addressed together.38 As noted in State v. Murray, 116 Hawai‘i 3, 10 n. 8, 169 P.3d 955, 962 n. 8 (2007), HRS § 701–114 (1993) provides in relevant part that "no person may be convicted of an offense unless" "[e]ach element of th......
  • State Of Haw.‘i v. Stenger, No. 27511.
    • United States
    • Supreme Court of Hawai'i
    • 4 d4 Março d4 2010
    ...omitted); State v. Kassebeer, 118 Hawai‘i 493, 511, 193 P.3d 409, 427 (2008) (citation omitted); State v. Murray, 116 Hawai‘i 3, 14 n. 9, 169 P.3d 955, 966 n. 9 (2007) (citation omitted). Because of the trial court's duty to instruct the jury properly, this court has held that, “although as......
  • State ‘i v. Walsh, No. 29790.
    • United States
    • Supreme Court of Hawai'i
    • 23 d2 Agosto d2 2011
    ...there is a reasonable possibility that the error might have contributed to conviction.’ ” State v. Murray, 116 Hawai‘i 3, 14 n. 9, 169 P.3d 955, 966 n. 9 (2007) (quoting State v. Gonsalves, 108 Hawai‘i 289, 293, 119 P.3d 597, 601 (2005)). 47. Of course, as stated supra, the prosecution's su......
  • Request a trial to view additional results

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