State v. Rauch, No. 23076.

• Citation: 94 Haw. 315,13 P.3d 324
• Decision Date: 06 December 2000
• Docket Number: No. 23076.
• Parties: STATE of Hawai`i, Plaintiff-Appellee. v. Lovisa RAUCH, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

13 P.3d 324

94 Haw. 315

STATE of Hawai`i, Plaintiff-Appellee. v. Lovisa RAUCH, Defendant-Appellant.

No. 23076.

Supreme Court of Hawai`i.

December 6, 2000.

Dana S. Ishibashi, on the briefs, Honolulu, for the defendant-appellant, Lovisa Rauch.

Donn Fudo (Deputy Prosecuting Attorney), on the briefs, for the plaintiff-appellee, State of Hawai`i.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ, and Intermediate Court of Appeals Judge Foley, in Place of ACOBA, J., Recused.

Opinion of the Court by LEVINSON, J.

The defendant-appellant Lovisa Rauch appeals from the first circuit court's amended judgment of conviction of and sentence for the offense of reckless manslaughter, in violation of Hawai`i Revised Statutes (HRS) § 707-702 (1993 & Supp.1999),¹ filed on September 22, 1999. Rauch's points of error on appeal are: (1) that the family court of the first circuit erred in waiving jurisdiction over her because it (a) misconstrued HRS § 571-22(d) (1993 & Supp.1998)² to mandate waiver and (b) violated principles of double jeopardy;³ and (2) that the first circuit court erred in sentencing her because it (a) did not apply time served credit for house arrest presentence detention, pursuant to HRS § 706-623(2) (1993), see infra section III.B.1, and (b) did not make sufficient findings under HRS § 706-606(2) (1993), see infra section III.B.2, to support incarceration. Finding no merit in Rauch's points of error, we affirm her conviction and sentence.

I. BACKGROUND

On August 17, 1998, Rauch was accused by petition filed in family court of committing an act that, if committed by an adult, would constitute second degree murder, in violation of HRS §§ 707-701.5 (1993) and 706-656 (1993 & Supp.1999). After conducting a hearing on the petition, the family court waived jurisdiction over Rauch and bound her over to be tried as an adult in the first circuit court. Rauch was indicted on October 20, 1998. She subsequently pled no contest to reckless manslaughter, see supra note 1, and was sentenced to probation for a term of ten years, subject to the special condition, inter alia, of one year of incarceration.

Just over a month shy of her seventeenth birthday, Rauch, on August 13, 1998, was involved in an altercation between her family and their neighbors, the Alameida family. Her family had recently moved into the neighborhood. Her father, Perry Rauch, was a commercial fisherman. The Alameida family were apparently displeased with the increase in vehicular traffic in the neighborhood, which they attributed to Perry's fishery.

On August 13, 1998, Perry delivered some fish to a neighbor, and, while at the neighbor's house, complained about someone who had painted on the gate to his property. Clayton Alameida, who was also at the neighbor's house, overheard Perry's complaints, became verbally abusive, told Perry to leave, and challenged him to fisticuffs. Clayton was intoxicated at the time, but to what degree remains uncertain. Perry used the neighbor's telephone, called his wife, and requested her to bring him a baseball bat. She did so, opting to drive over in their automobile. Once there, Clayton assaulted her, knocking her to the ground at least twice. Rauch, who had walked over to the neighbor's house, observed Clayton's assault on her mother. Both families continued to taunt and threaten each other as the Rauches retreated to their own property. The Alameida family, however, followed them.⁴

On the Rauches' property, Clayton continued to taunt Perry, chasing him around (although Perry still held the bat), and, apparently, wielding or throwing iron bars at him. At some point, Rauch left the front lawn in search of her father's .22 caliber rifle, which she eventually found in his boat. Rauch returned and attempted to dissuade Clayton from continuing his attack on her parents by aiming the rifle at him. The rifle discharged. Clayton's grandmother, Julia Alameida, who was sixty-two years old at the time, was struck in the forehead by the bullet and died as a result.

Rauch and the prosecution stipulated to the following facts at the hearing conducted with regard to the prosecution's waiver petition:

One, the minor, Lovisa Rauch, was born on September 23, 1981; two, Lovisa Rauch was 16 years old at the time of the alleged offense[,] which was on August 13th to 14th, 1998; three, the alleged offense would constitute a felony if committed by an adult; four, that during her minority, Lovisa Rauch is alleged to have committed an act that would constitute murder in the second degree if committed by an adult; five, Lovisa Rauch is not committable to an institution for the mentally defective or retarded or the mentally ill.

Without objection, the family court also admitted into evidence the police report concerning the present matter and the report of Dr. Gary M. Farkas, filed in the family court on September 8, 1998.

Called by the prosecution, Gary Farkas, Ph.D., a "self-employed clinical psychologist" who is also employed part-time by the State of Hawai`i Courts and Corrections Division, testified that, after meeting with Rauch on September 1, 1998, he did not detect "any significant mental health indicators in her," that "there was no evidence that she had a psychotic disorder, a depressive disorder, [or] an anxiety disorder," and, indeed, that she had "no diagnosable [mental] conditions." On cross-examination, Dr. Farkas testified that his conclusion was that Rauch was not committable to an institution for the mentally ill.

Called by the defense, Barry S. Carlton, M.D., an associate professor of psychiatry at the University of Hawai`i John A. Burns School of Medicine, testified that he also met with Rauch and that, pursuant to his request, Queen's Medical Center conducted standard psychological testing of her. Dr. Carlton similarly concluded that Rauch was not committable. He also testified that Rauch was able to understand "what has happened to her, the charges that have [been] brought, and participate in her ... defense."

The defense also called Rauch's father, Perry. Perry testified that, to his knowledge, Rauch had not "caused any problems or difficulties at school" or at home. Lovelyn Mapona Kekino, Rauch's mother, testified similarly but acknowledged that Rauch did have some trouble abiding by the school's dress code. Lovelyn also acknowledged that Rauch had been referred to the family court once before, on the accusation of committing theft in the fourth degree. Lovelyn testified that neither Rauch nor her friends used drugs. The family court also heard testimony from Rauch's brother, Dane Kekino Rauch, and Jasmine Marie Kaalakahealani Pullman, a friend of Rauch's, who had gathered letters of support from other schoolmates.

The prosecution urged the family court to waive its jurisdiction over Rauch under either HRS § 571-22(a) (1993 & Supp.1998),⁵ or, alternatively, under HRS § 571-22(d), see supra note 2. Under HRS § 571-22(a), the prosecution argued: (1) that Rauch was not committable to an institution for the mentally ill and, therefore, was not in need of treatment; and (2) that, based on the severity of the alleged offense, the safety of the community required that Rauch be subject to "judicial restraint" for a period beyond her minority. Under HRS § 571-22(d), the prosecution again noted that Rauch was accused of committing second degree murder and that there was no evidence that she was committable to a mental institution; these were facts stipulated to by the parties.

Rauch argued that the factors set forth in HRS § 571-22(c) (1993 & Supp.1999)⁶ weighed against granting the prosecution's petition, inasmuch as: "there is no history or pattern of law-violating behavior; she has no history or pattern of assaultive, aggressive, or violent type of behavior; she has never been a behavior problem at home, at school, or in the community; she comes from a close-knit family, has [a] strong support system in ... her parents and siblings[;] ... that her overall functioning is stable; [and] that if she is in need of services and/or treatment, she is treatable under the family court system given her age."

In rebuttal, the prosecution argued that, "as far as waiver under [HRS §] 571-22(d)" was concerned, and given the severity of the accusation, the "only issue" was "whether or not [Rauch was] committable."

The family court ruled as follows:

All right. The court finds that the respondent is a minor under the age of 18; that the incident which led to the charge in this case occurred while the minor was 16 years of age; and that the act constitutes a felony if committed by an adult; and, further, that the minor is not committable to an institution for the mentally defective or retarded or mentally ill.

Normally, under section 571-22, the court would go through the criteria with regard to waiver. But the legislature, in enacting Act 318 last year during the 1977 [sic] legislative session, amended the statute by adding subsection (d) and giving a clear policy indication that in a case where the alleged act constitutes murder in the second degree and, in this case, in having reviewed the entire police report, appears there is probable cause for that charge and, secondly, that there is no evidence in this case that the minor is committable. And following the legislature's policy decision, the court is granting the [prosecution's] request for a waiver.

Later that afternoon, the family court heard arguments on Rauch's motion for reconsideration. Rauch argued she had no notice that the prosecution would be relying on HRS § 571-22(d), and, thus, the family court's reliance on that subsection denied her due process. Rauch also argued that, in any event, the family court misconstrued the legislative intent of HRS § 571-22(d), inasmuch as the court was not required, upon making the findings set forth in HRS § 571-22(d), to waive its jurisdiction. Moreover, Rauch contended that, to properly exercise its discretion under HRS § 571-22...