State v. Spearman

• Decision Date: 21 February 2013
• Docket Number: No. SCWC–11–0000702.,SCWC–11–0000702.
• Citation: 129 Hawai'i 146,296 P.3d 359
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Sarah V.P. SPEARMAN, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

129 Hawai'i 146

296 P.3d 359

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Sarah V.P. SPEARMAN, Petitioner/Defendant–Appellant.

No. SCWC–11–0000702.

Supreme Court of Hawai‘i.

Feb. 21, 2013.

Reconsideration Denied March 8, 2013.

Timothy I. MacMaster, Honolulu, for petitioner.

Keith M. Kaneshiro and Stephen K. Tsushima, Honolulu, for respondent.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, and POLLACK, JJ.

Opinion of the Court by MCKENNA, J.

I. Introduction

At issue in this appeal is whether double jeopardy¹ bars the re-prosecution of a defendant for violating Hawai‘i Revised Statutes ("HRS") § 291E–61 (2007 & Supp. 2009)² ("Operating a Vehicle under the Influence of an Intoxicant" or "OVUII"), following a "judgment of acquittal" on the HRS § 291E–61(a)(3) method of proof in an initial trial in which both HRS §§ 291E–61(a)(1) and (a)(3) methods of proof were tried. We reaffirm that a "judgment of acquittal" on the HRS § 291E–61(a)(3) method of proof in an OVUII trial is "in form only," but that it serves as a factual finding that the State has not met its burden of proving the requisite breath alcohol content. Based on our recent holding in State v. Mundon, 129 Hawai‘i 1, 292 P.3d 205 (2012) (adopting the "collateral estoppel" principle from Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) ), however, the collateral estoppel principle embodied in the double jeopardy clause prohibits the State from re-litigating breath alcohol content, whether in a re-prosecution of the defendant on the HRS § 291E–61(a)(3) method of proof, or as part of the State's evidence in a subsequent trial on the HRS § 291E–61(a)(1) method of proof. We therefore expressly overrule State v. Lemalu, 72 Haw. 130, 139, 809 P.2d 442, 447 (1991), which held otherwise. The collateral estoppel principle, however, would not prohibit the State from re-charging the defendant on the HRS § 291E–61(a)(1) method of proof, following a dismissal without prejudice based on the failure of the Complaint to allege mens rea. See State v. Nesmith, 127 Hawai‘i 48, 276 P.3d 617 (2012). Consequently, we affirm the ICA's Judgment on Appeal.

II. Background

On May 16, 2011, the State charged Spearman via Complaint with violating HRS § 291E–61 (a)(1) and/or (a)(3), but the Complaint did not allege mens rea. After the State orally read the Complaint to Spearman, Spearman's counsel moved to dismiss the Complaint because it failed to allege mens rea. The district court³ denied the motion, and trial commenced.

Among the State's witnesses was a Honolulu Police Department officer who testified that she administered the breath alcohol test, using the Intoxilyzer 8000, to Spearman, who "blew a 0.251 ... percent of alcohol liters per two tenths breath." After the State rested, Spearman's counsel moved for a judgment of acquittal and to strike all testimony about breath alcohol content. The district court interpreted this statement as a "motion for judgment of acquittal as to the A–3." The district court pointed out that the officer "testified that in fact it was not .251 grams of alcohol per two hundred ten liters of breath. It was something that I didn't even understand.... It's up to her to testify to [the units of measurement]. She tried and failed." The district court then granted "the motion to judgment of acquittal as to the A–3."

Spearman chose not to testify. The defense then rested, and the district court found Spearman guilty of violating HRS § 291E–61 (a)(1) only. Spearman appealed, on the basis that the Complaint was legally deficient for failing to allege mens rea.

While Spearman's appeal was pending before the ICA, we issued our opinion in Nesmith, which held that an

HRS § 291E–61 (a)(1)

charge must allege mens rea in order to give the accused fair notice of the nature and cause of the accusation. 127 Hawai‘i at 50, 54, 276 P.3d at 619, 623. In disposing of Spearman's appeal, the ICA⁴ accordingly held, "Pursuant to Nesmith, we conclude that Spearman's HRS § 291E–61(a)(1) charge was deficient for failing to allege mens rea. " State v. Spearman, CAAP–11–0000702, 127 Hawai'i 414, 2012 WL 2445294 (June 27, 2012) (SDO) at 2. It then vacated the judgment of the district court and remanded the case "with instructions to dismiss without prejudice the portion of the complaint alleging a violation of HRS § 291E–61(a)(1)." Id. at 3 (footnote omitted). The ICA also footnoted the following observation: "We note that because the District Court acquitted Spearman with respect to the alleged HRS § 291E–61(a)(3) violation, the protection against double jeopardy would preclude Plaintiff–Appellee State of Hawai‘i from re [-]prosecuting Spearman for violating HRS § 291E–61(a)(3)." Id. at 3, n. 3.

III. Discussion

On certiorari, Spearman presents the following point-by-point argument: First, OVUII consists of a single offense ( HRS § 291E–61 ) for which there are four alternative methods of proof ( HRS § 291E–61(a)(1), (2), (3), and (4) ). For this proposition, Spearman cites State v. Grindles, 70 Haw. 528, 777 P.2d 1187 (1989). Second, once the State failed to validly charge the HRS § 291E–61(a)(1) method of proof and failed to prove the HRS § 291E–61(a)(3) method of proof, the district court should have found Spearman not guilty of the offense of OVUII or at least dismissed the entire case with prejudice. Third, the ICA's footnote 3 did not go far enough: not only should double jeopardy bar the State from re-prosecuting Spearman on the HRS § 291E–61(a)(3) method of proof, it should also bar the State from re-prosecuting her on the HRS § 291E–61(a)(1) method of proof. In other words, a dismissal without prejudice on the HRS § 291E–61(a)(1) method of proof was an improper remedy; the proper remedy was a dismissal of the entire HRS § 291E–61 Complaint. Consequently, Spearman requests that this court "reverse and vacate the District Court's Judgment of Conviction and Sentence on the entire HRS § 291E–61 charge herein."

The following sub-sections discuss several of our past cases, which dispose of Spearman's point-by-point argument.

1. State v. Grindles

Spearman is correct that Grindles stands for the proposition that Driving under the Influence ("DUI") under HRS § 291–4 (now OVUII under HRS § 291E–61⁵ ) constitutes "one offense with alternative methods of proof," including proof of impaired driving or proof of blood alcohol content. 70 Haw. at 530, 777 P.2d at 1189. In that case, this court reversed an appellant's conviction for DUI and remanded the case for a new trial, concluding that the trial court erred in bifurcating the DUI trial into two separate hearings: the first on the impaired driving method of proof and the second on the blood alcohol method of proof. 70 Haw. at 529, 777 P.2d at 1188. The trial court adjudged the appellant guilty of violating HRS § 291–4 under the impaired driving method of proof, and the hearing on the blood alcohol content method did not take place thereafter. 70 Haw. at 529, 777 P.2d at 1189. This court footnoted a further concern about the bifurcated trial as follows:

We also note that bifurcation of a DUI trial into two separate hearings under HRS § 291–4(a)(1) and –4(a)(2) may subject the defendant to double jeopardy. In this case, jeopardy attached when the court began to hear the State's evidence. Appellant was not subjected to double jeopardy, however, since the trial court adjudicated him guilty at the conclusion of the State's proof under § 291–4(a)(1), and did not proceed to hold a second hearing under § 291–4(a)(2). However, in the event the defendant is acquitted under § 291–4(a)(1) and the court allows the State to proceed under § 291–4(a)(2), the defendant will have been twice placed in jeopardy for the same offense in violation of article I, section 10 of the Hawaii Constitution and the fifth amendment to the U.S. Constitution.

70 Haw. at 533, n. 3, 777 P.2d at 1191, n. 3.

2. State v. Dow

This dicta in Grindles, at first glance, appears to support Spearman's double jeopardy argument. However, this court's holding in State v. Dow, 72 Haw. 56, 806 P.2d 402 (1991), demonstrates that an "acquittal" on one method of proof for DUI does not necessarily pose a double jeopardy threat to a subsequent prosecution on another method of proof for DUI. In that case, the defendant ("Dow") was charged with DUI under HRS § 291–4(a)(1) (driving under the influence)(count I) and HRS § 291–4(a)(2) (driving with blood alcohol level of 0.10 or more)(count II). 72 Haw. at 58, 806 P.2d at 403. After the prosecution rested, Dow moved for a judgment of acquittal as to Count I, which the trial court granted. Id. Count II was submitted to the jury, but the jury was unable to reach a verdict on that count, and the trial court declared a mistrial. Id. A second trial on Count II was scheduled, and Dow filed a motion to dismiss on the ground of double jeopardy. Id. The motion was denied, trial commenced, and Dow was convicted on count II. Id. Dow appealed, and the ICA reversed his conviction. 72 Haw. at 58, 806 P.2d at 403–04. This court then reversed the ICA's decision, concluding there was no double jeopardy bar to the retrial. 72 Haw. at 57, 806 P.2d at 403.

Preliminarily, we note that the facts in Spearman's case are similar to those in Dow. Spearman was charged with violating two alternative sections of HRS § 291E–61 : the impaired driving subsection ( HRS § 291E–61(a)(1) ) and the breath alcohol content subsection ( HRS § 291E–61(a)(3) ). After the prosecution rested, Spearman moved for a judgment of acquittal as to the HRS § 291E–61(a)(3) method of proof, and the trial court granted her motion. After the "acquittal," trial proceeded on the other method of proof, HRS § 291E–61(a)(1). Although Spearman's case did not result in a mistrial on that method of proof, her appeal did result in a vacate-and-remand of that charge, with an instruction to the district court to dismiss that charge without prejudice. Here, however, the similarities between Dow's and...