State v. AkauState v. Akau
Lead Opinion
Opinion of the Court by
On February 8, 2008, this court accepted a timely application for a writ of certiorari, filed by petitioner/ defendant-appellant Anthony Kalani Akau on January 7, 2008, requesting this court review the Intermediate Court of Appeals’ (ICA) October 11, 2007 judgment on appeal, entered pursuant to its September 21, 2007 summary disposition order (SDO). Therein, the ICA affirmed the Circuit Court of the First Circuit’s
Briefly stated, on three separate occasions in October and November 2002, Akau unwittingly sold crystal methamphetamine to un-
On application, Akau apparently argues that the ICA erred in affirming, inter alia, the circuit court’s denial of his motion to dismiss. Specifically, Akau asserts—as he did before the ICA—that the circuit court should have dismissed the drug buy case for failure on the part of respondent/ plaintiff-appellee State of Hawaii (the prosecution) to bring all the charges in one action, as required under HRS §§ 701—lll(l)(b) and 701-109(2), because the possession and paraphernalia offenses and the distribution offenses “[arose] from the same episode.”
As discussed more fully infra, we hold that the ICA erred in affirming the circuit court’s denial of Akau’s motion to dismiss. Accordingly, we reverse the ICA’s October 11, 2007 judgment on appeal and the circuit court’s October 15, 2004 judgment of conviction in the drug buy case.
I. BACKGROUND
A. Factual and Procedural Background Leading Up to the Drug Buy Case
The following undisputed findings of facts (FOFs) are taken from the circuit court’s order denying Akau’s motion to dismiss the drug buy case:
1. On October 8, 2002, fronting 825 Keeaumoku Street, an undercover Honolulu Police Department (hereinafter “HPD”) police officer purchased 0.121 grams of crystal methamphetamine from [Akau] for twenty dollars.
2. On October 22, 2002, fronting 825 Keeaumoku Street, a second undercover police officer purchased 0.094 grams of crystal methamphetamine from [Akau] for twenty dollars.
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4. On November 21, 2002, inside the men’s restroom of Daiei located at 801 Kaheka Street, the second undercover police officer purchased 0.158 grams of crystal methamphetamine from [Akau for twenty dollars].
5. Based on the [three] undercover transactions, a search warrant was obtained and executed on [Akau] and his personal effects on November 26, 2002. [Akau] was never arrested for the [three] underlying drug transactions.
[4 ]
6. Upon execution of the search warrant fronting 835 Keeaumoku Street, 0.351 grams of crystal methamphetamine were found in [Akau’s] possession, which resulted in [Akau’s] arrest for [promoting a [d]angerous [d]rug in the [t]hird [d]egree, in violation of [HRS § 712-1243], and [unlawful [u]se of [d]rug [paraphernalia, in violation of HRS [§ ]329-43.5(a)[.]
*47 7. On December 5, 2002 [Akau] was charged via complaint with [p]romoting a [d]angerous [d]rug in the [t]hird [d]egree and [u]nlawful [u]se of [d]rug [p]arapher-nalia[ ] in [the search warrant case], based upon the illegal narcotic and drug paraphernalia recovered during the execution of the search warrant.
8. On February 6, 2003, [Akau] pled [n]o [c]ontest as charged in [the search warrant case].
9. On April 14, 2003, [Akau] was sentenced [as a first-time drug offender] to[,] inter alia, a term of five (5) years of probation (with one (1) year of incarceration), pursuant to HRS [§ ]706-622.5 [ (Supp.2003) ] in [the search warrant case].
10. On October 21, 2003, [Akau] was indicted in the instant matter for three counts of [promoting a [d]angerous [d]rug in the [s]eeond [d]egree, in violation of HRS [§ ]712—1242(l)(c) ..., based on the October 8, 22, and November 21, 2002, undercover drug transactions.
B. Motion to Dismiss the Drug Buy Case
On March 22, 2004, Akau filed a motion to dismiss the drag buy case, pursuant to HRS §§ 701—lll(l)(b) and 701-109(2). HRS § 701-111 provides in relevant part that:
When prosecution is barred by former prosecution for a different offense. Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution under any of the following circumstances:
(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 701-110(3) [ (1993)5 ] and the subsequent prosecution is for:
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(b) Any offense for which the defendant should have been tried on the first prosecution under section 701-109 unless the court ordered a separate trial of the offense[.]
(Some emphases in original and some added.) In turn, HRS § 701-109, also known as “the compulsory joinder of offenses requirement,” State v. Aiu,
(2) Except as provided in subsection (3) of this section [ (authorizing the court to order separate trials), quoted infra note 10,] a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.
(Emphases added.) Based on these two statutes, Akau argued that the undercover drug buys were “part and parcel of a search warrant and as such, both the purchase [of the drags] and the issuance of a search warrant can and should be deemed ‘the same episode.’ ” The prosecution opposed Akau’s motion. A hearing was held on May 13, 2004 at which time Akau called Lawrence Grean, the head of the Screening Intake Division at the Prosecuting Attorney’s Office, to testify regarding the circumstances under which undercover buys or sales of narcotics that lead to a search warrant are prosecuted or are not prosecuted. Specifically, the following testimony was elicited:
Q: [By Akau’s Counsel] ... Now, in those eases where the undercover or the confidential informant sales/buys has resulted in search warrants, is it the practice of your office, Mr. Grean, to then prosecute the actual buys and/or sales in spite of the fact that the search warrant case has been prosecuted? Do you understand what I’m driving at?
*48 A: [By Grean] I—I think so. The answer to that is it depends.
Q: Ail right. And will you please elucidate all of us as to why it depends?
A: Well, if you have undercover police officers—let’s take that scenario—
Q: Thank you.
A: —and they make three or four buys from a suspect, and then as a result of those buys the search warrant is prepared and executed,—
Q: Yes?
A: —it’s quite possible that the undercover buys cannot go forward because the police officer, the undercover officer, is still working undercover and cannot surface at that time.
Q: And then?
A: So the prosecutor’s office would go ahead with the search warrant case. And at a later date, when it’s—when the undercover officer is going to be available and surface, then we would go ahead with those eases.
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Q: Now, with respect to the buys/sales involving an undercover officer, you mentioned a circumstance under which sometimes those cases would be postponed, to wit, that the officer is still serving in an undercover capacity and therefore your office has to wait until—until that—that person’s undercover status has been lifted. Is that true?
A: Right.
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Q: ... Off the top of your mind, you cannot recollect a case where an undercover officer has done the buy and the sale and which then leads of course to a search warrant on a suspect; right? The suspect is—
A: The answer is yes.
Q: Right. And the suspect is prosecuted on the search warrant case but then is not prosecuted for the buys and sales, even though there was an undercover officer involved in the undercover buys and sales.
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A: Well, it—if the undercover officer has let’s say made four buys and he can’t surface at the—at the time of the buys, and he does surface later on, then there wouldn’t be—unless there’s some other reason I—I don’t—I’m not aware of, he— he—the suspect would then be prosecuted for those four buys.
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Q: ... Now, can you say as a matter of fact that in all circumstances when there is an undercover officer involved with the sales and the buys that—that, even though you’ve made a search warrant case on the suspect, that you always prosecute those buys and sales?
A: Well, I would think so, yes.
Additionally, the circuit court questioned Grean as follows:
Q: [By the circuit court] Mr. Grean, in your mind, correct me if I’m not hearing you right, it’s a matter of prosecutorial discretion if there’s some buys and then later a search warrant and the undercover officer is able to surface, for lack of a better word, and they’re prosecuting, it’s prosecutorial discretion whether to charge separate charges?
A: Absolutely.
Akau also called HPD Officer Shellie Silva, who executed the search warrant on Akau, as a -witness. Officer Silva testified, in relevant part, as follows:
Q: [By Akau’s counsel] Is there any reason why, Officer, you decided to get three or four purchases?
A: [By Officer Silva] In order to get the search warrant, um, you need the purchases done, and the more purchases you have, the more days you have to execute the warrant from the last purchase.
Q: Okay. Now, earlier this afternoon I asked you about that, and is it fair to say that, for instance, if you only made one undercover purchase, more likely than not the search warrant would be good for like one day?
A: Yes.
Q: Whereas, if you made three or four purchases, undercover purchases, then the*49 search warrant would be good for perhaps ten days; is that correct?
A: Maximum ten days, yes.[6 ]
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Q: And then finally, Officer Silva, the—to your knowledge, the search warrant that you executed on November 26[ ], 2002, did in fact result in a criminal case being brought against [Akau]?
A: Yes.
Q: The undercover officers that were used in this case for—with [Akau], do you recall for what length of time, if any, after the search warrant was executed on November 26[ ], 2002, that they stayed in an undercover capacity, if you will?
A: One of the undercover officers is still in an undercover capacity, and the second undercover officer I would say, urn, maybe approximately six months. I don’t know exactly ‘cause there’s other divisions and other teams that would use them. So for my case, I would say approximately six months for one, and one is still currently working with us.
Q: In the police reports that were prepared regarding the purchases and sales in this matter with [Akau], their names are disclosed; is that correct?
A: Um, in the criminal cases that—
Q: Yeah, in the police reports.
A: Yes, because I would believe they had to do a—a report on the actual transactions so their name would be signed at the bottom of the report.
Q: Yeah. So it wouldn’t be blacked out or something like that; right?
A: No.
(Emphases added.) Ultimately, on June 18, 2004, the circuit court issued its order denying Akau’s motion to dismiss. Therein, the circuit court concluded that:
5. [Akau’s] assertion that the distribution charges in the instant matter and his possession of an illegal narcotic and drug paraphernalia in [the search warrant case], were “based on the same conduct or arising from the same episode” is unsupported by the evidence presented to the court. HRS [§ ]701-109(2).
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6. [Akau’s] act of distributing crystal methamphetamine [ (in the drug buy case) ] and his act of possessing an illegal narcotic and drug paraphernalia [ (in the search warrant case) ] do not constithte the “same conduct.”
7. The evidence demonstrated that [Akau’s] distribution of crystal methamphetamine were discrete acts committed and completed on the specific dates charged in the indictment.
8. Similarly, the evidence demonstrated that [Akau’s] possession of the illegal narcotic and related drug paraphernalia were also discrete acts committed and completed on the specific date charged in the complaint and unrelated to the date of the distribution charges in the instant matter.
9. There is no basis to conclude the distribution offenses in the instant matter and the possession and drug paraphernalia offense charged in [the search warrant cases], arose “from the same episode.” HRS [§ ]701-109(2). Accord [ ] State v. Carroll,63 Haw. 345 ,627 P.2d 776 (1981).
10. Accordingly, [Akau] has failed to substantiate his contention that the instant prosecution is barred by operation of “HRS [§§ ]701-lll(l)(b) and 701-109(2).”
(Emphases and some brackets in original.)
C. Motion for Sentencing as a First-Time Drug Offender in the Drug Buy Case
On April 30, 2004, Akau filed a motion for sentencing as a first-time drug offender, pur
D. Akau’s Conditional Plea and Sentence
Prior to the circuit court’s issuance of the orders denying Akau’s motions to dismiss and for sentencing as a first-time drag offender, Akau entered a conditional guilty plea, pursuant to HRPP Rule 11(a)(2), quoted supra note 3, to the charges in the drug buy case. At the hearing on Akau’s change of plea, the circuit court stated:
THE COURT: I’m well aware of this case. This was a search warrant case initially. And then the government chose to use the undercover officers to do the—was it [confidential informants] or [undercover officers]?
[AKAU’S COUNSEL]: [Undercover officers.]
THE COURT: The undercover officers to get sales cases. And there’s a squabble, which I totally understand, whether the law allows it. I tried real hard to either settle this case or to figure out a way to cut [Akau] some slack. I’m making a transcript now for the [a]ppellate [c]ourt. I couldn’t do it, because I have an oath to follow the law. I can’t just, based on the length of my foot or what I had for breakfast, take care of [Akau]. But I think I made a thorough record. So maybe the [a]ppellate [c]ourts might see it differently.
On October 15, 2004, the circuit court accepted Akau’s conditional plea, entered its judgment of guilty conviction, and sentenced Akau to a ten-year term of imprisonment with a mandatory minimum of six months, pursuant to HRS § 712-1242(3) (Supp.2003).
E. Appeal Before the ICA
On appeal, Akau argued, as he does in his application, that the circuit court erred in (1) denying his motion to dismiss inasmuch as the search warrant case and the distribution ease should be considered part of the “same episode” and (2) denying his motion to be sentenced as a first-time drug offender. The ICA issued its SDO on September 21, 2007, discussed more fully infra, rejecting Akau’s arguments and affirming the circuit court’s October 15, 2004 judgment. The ICA filed its judgment on appeal on October 11, 2007. Akau timely filed his application for a writ of certiorari on January 7, 2008. Thereafter, this court accepted Akau’s application on February 8, 2008 and heard oral argument on March 6, 2008.
II. STANDARDS OF REVIEW
A. Motion to Dismiss an Indictment
“A [circuit] court’s ruling on a motion to dismiss an indictment is reviewed for an abuse of discretion.” State v. Mendonca,
B. Statutory Interpretation
We review the circuit court’s interpretation of a statute de novo. State v. Pacheco,
III. DISCUSSION
As previously stated, Akau essentially contends that the ICA erred in affirming the circuit court’s denial of his motions to dismiss and for sentencing as a first-time drug offender. We first address Akau’s argument with respect to his motion to dismiss.
A. Motion to Dismiss
On application, Akau argues—as he did before the ICA—that the search warrant case and the drag buy case should have been tried together as mandated by HRS §§ 701-lll(l)(b) and 701-109(2) because both cases “[arose] from the same episode.” As previously quoted, HRS § 701-111 provides in relevant part:
When prosecution is barred by former prosecution for a different offense. Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution under any of the following circumstances:
(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 701—110(3)[, quoted supra note 5,] and the subsequent prosecution is for:
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(b) Any offense for which the defendant should have been tried on the first prosecution under section 701-109 unless the court ordered a separate trial of the offense[.]
(Bold emphasis in original and underscored emphases added.) In turn, HRS § 701-109 provides in relevant part:
(2) Except as provided in subsection (3) of this section,[10 ] a defendant shall not*52 be subject to separate trials for multiple offenses based on the same conduct or arising fi-om the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.
(Emphases added.) Inasmuch as “it is axiomatic that the ‘same criminal episode’ element of the compulsory joinder rule is not a self-defining concept[,]” People v. Miranda,
1. Hawai'i Case Law
a. the Carroll case
In State v. Carroll,
[HRS] § 701-109(2) ... reflects a policy that a defendant should not have to face the expense and uncertainties of multiple trials based on essentially the same conduct or episode. It is designed to prevent the [prosecution] from harassing a defendant with successive prosecutions where the [prosecution] is dissatisfied with the punishment previously ordered or where the [prosecution] has previously failed to convict the defendant.
Id. at 351,
[the] defendant was charged with the commission of offenses which occurred at different times and places and under different circumstances. Our rationale is based primarily on the fact that the arresting officer failed to recognize the illegal nature of the cannister at the time of the search for weapons. As a result, defendant’s possession of the [m]ace continued after his initial arrest, until the subsequent discovery and identification at the police station.
Id. at 352,
*53 While it is true that the possessory offense can be traced to the time of the first arrest, we cannot say that the possessory charge should be deemed effective as of the time of that arrest. The point in time at which the [m]aee was identified is important because prior to the identification, the facts and circumstances within the first arresting officer’s knowledge did not afford probable cause to believe that an offense other than [afttempted [criminal [pfroperty [dfamage in the [sfecond degree had been committed.
Id. (emphasis added) (citations omitted). Accordingly, the Carroll court reversed the trial court’s order granting the defendant’s motion to dismiss. Id. at 353,
b. the Servantes case
This court, in State v. Servantes,
In Carroll, we reasoned that defendant’s possession of the [m]aee continued until the discovery and identification at the police station. Prior to identifying the [mface, the facts and circumstances known to the first officer did not afford probable cause to believe that an offense other than attempted criminal property damage had been committed.
Here, [the defendant] lost possession of both the marijuana and cocaine when he was arrested and his car seized. Most importantly, police had probable cause at the time of [the defendant’s] arrest on the marijuana offense to suspect [the defendant] of possession of additional illegal drugs.
Furthermore, we cannot ignore that [the defendant’s] motion, filed previous to trial, to suppress the evidence seized from his car is obviously part of the trial proceedings. In the course of the suppression hearing, the [prosecution] would have to refer to a factual account of the misdemeanor' offense in or-der to support probable cause for' the search. A fortiori, the felony charge cannot be tried without mention of the misdemeanor offenses.
Id. at 39,
c. the Keliiheleua case
In State v. Keliiheleua,
Here, there was no reason to suspect that subsequent to causing the motor vehicle accident, [the djefendant would obtain an insurance policy and then file a fraudulent insurance claim. Furthermore, unlike the offenses involved in Servantes, the negligent injury charge can be tried without mention of the fraud case.
Id. (emphasis added).
2. Application of the Compulsory Join-der Statute in this Case
On direct appeal before the ICA, the prosecution argued that the circuit court correctly determined “that there was no basis upon which to conclude that the distribution offenses in the [drug buy case] and the search warrant ... case arose ‘from the same episode.’ ” Specifically, the prosecution asserted:
Here, the circuit court was correct [that] the distribution offenses and the search warrant case did not arise from the same episode or conduct.[12 ] The drug buys*55 were conducted at times separate and apart from the execution of the search warrant. There were entirely different witnesses involved in each offense. The offenses were discovered under different circumstances and were not related in time, place and circumstances. The fact that the buys were used as a basis to support the search warrant did not require the offenses be charged together.
Id. at 13.
In affirming Akau’s conviction, the ICA agreed with the prosecution and rejected Akau’s arguments that all of the charged offenses were required to be joined in a single prosecution. Specifically, the ICA explained that:
Akau’s case is similar to [Servantes ] because the [prosecution’s drug buy case] against Akau provided the [prosecution] with probable cause to search his person and personal effects. The [prosecution’s] search warrant, in turn, gave rise to the [search warrant case]. However, Akau’s case is distinguishable from Servantes because the search warrant for Akau was based on three separate buys/sales for crystal methamphetamine from/to him conducted on three separate buys/sales of crystal methamphetamine from/to him conducted on three separate dates (October 8 and 22 and November 21, 2002)—all made before the police department executed its search warrant on Akau and his personal effects on November 26, 2002. The dates and circumstances involved in the [drug buy ease] and [the search warrant case] were more disparate than were the dates and circumstances in the two cases involved in Servantes. Hence, we do not agree that the [search warrant ease] and [the drug buy case] were part of the “same episode” and, as such, should have been consolidated into one trial.
Akau’s case is more like [Keliiheleua ] in that the criminal offenses were not closely related in time, place, or circumstances.
The Supreme Court of Hawai'i explained in [Carroll ] that HRS § 701-109(2) was designed to prevent the State from harassing a defendant with successive prosecutions where the State had failed to convict the defendant or was dissatisfied with the punishment previously ordered. However, the State’s conviction of Akau in the [search warrant case] was successful, as Akau was convicted of [p]romoting a [dangerous [d]rug in the [t]hird [d]egree and [u]nlawful [u]se of [d]rug [p]araphernialia and sentenced to a term of five years of probation and one year of incarceration. There is no evidence in the record on appeal that the [prosecution] attempted to harass Akau by prosecuting the [search warrant case] separately from the [drug buy ease].
ICA SDO at 3-4.
Akau, however, contends that the ICÁ “committed grave error in being too mechanical and rigid in its approach to the facts of this case and interpretation of ease law.” Specifically, Akau argues that
[t]his is evidenced in the [ICA’s] own language found on page [three] of the [SDO] ... second full paragraph^] wherein the [ICA] at first state[d] that the present case is similar to State v. Servantes,72 Haw. 35 ,804 P.2d 1347 (1991) and then in the same breath distinguishes Akau from Servantes by invoking the "... so closely related in time, place and circumstances ...” language from Carroll to point out the obvious that the three buys/sales occurred on different dates[ ]—ignoring the commonality of purpose of each buy/sale.
Even though this case might constitute an anomalous situation (referred to [in] the [o]pening [b]rief as the “Akau anomaly”), this court, nevertheless, should be concerned with the administration of justice,*56 [c]f., State v. Wong,97 Hawai'i 512 ,40 P.3d 914 (2002)[.]
(Ellipses in original.) Id.
As previously stated, criminal offenses that are “based on the same conduct or aris[e] from the same episode” must be joined in a single prosecution “if such offenses are known to the appropriate prosecuting officer at the time of commencement of the first trial and are within the jurisdiction of a single court.” HRS § 701-109(2). If the prosecution fails to bring such cases together, the subsequent charges are barred. HRS § 701-lll(l)(b). Here, the evidence demonstrates (1) that at the time Akau entered his plea of no contest in the search warrant case the appropriate prosecuting officer was aware of the existence of the three undercover drug buys inasmuch as they served as the bases for the search warrant that ultimately led to the charges levied against Akau in the search warrant ease and (2) that both cases were within the jurisdiction of a single court—the Circuit Court of the First Circuit. Additionally, the parties do not dispute, and we agree, that the search warrant case and the drug buy ease were not based on the same conduct. Accordingly, the relevant inquiry before us narrows to whether both cases “[arose] from the same episode.”
In Carroll, this court announced that the “test for determining the singleness of a criminal episode should be based on whether the alleged conduct was so closely related in time, place and circumstances that a complete account of one charge cannot be related without referring to details of the other charge.”
With respect to the “time” factor, the evidence in the instant case indicates that the undercover drug buys occurred on three separate occasions—October 8, 22, and November 21, 2002. The search warrant was executed on November 26, 2002—five days after the last drug buy. Thus, the facts unequivocally establish that the drug buy offenses and the search warrant offenses did not occur on the same day or at exactly the same time. However, in Servantes, this court determined that the lapse of several days between the discovery of the first criminal offense and the second offense was not fatal to the defendant’s argument that the two criminal offenses “[arose] from the same episode.” Servantes,
With respect to the “place” factor, we expressed concern in Keliiheleua, that “defining ‘place’ as broadly as the entire City and County of Honolulu would unduly hamper the administration and application of HRS § 701-109(2).”
With respect to the “circumstances” factor of the Carroll test, a close reading of our relevant case law reveals that a common thread runs throughout these cases—that is, an examination of whether the facts and circumstances of the first discovered offense provided sufficient probable cause to suspect that the defendant had committed or would commit the second discovered offense. For example, in Carroll, this court determined that the two charged offenses—attempted criminal property damage in the second degree and possession of an obnoxious substance (mace)—were not part of the “same episode” because,
prior to the identification [of the mace], the facts and circumstances within the first arresting officer’s knowledge did not afford probable cause to believe that an offense other than [attempted [cfiiminal [pjroperty [djamage in the [sjecond [d]e-gree had been committed.
In this case, the undisputed facts and the reasonable inferences therefrom establish that: (1) Akau sold drugs to undercover police officers on three separate occasions, each of which was sufficient to charge him with promoting a dangerous drug in the second degree; (2) the three drug buys, however, also provided sufficient probable cause to suspect that Akau would commit additional drug offenses; (3) rather than refer the drug buy evidence to the prosecutors, the police opted to obtain a search warrant based upon the drug buys; (4) the three previous drug buys provided sufficient probable cause for the search warrant; (5) the execution of the search warrant ultimately led to the possession and paraphernalia charges; and (6) the prosecutors were clearly aware of the distribution offenses at the time they made the decision to charge Akau in the search warrant case. Additionally, we observe that the circumstances involved in the three undercover drug buys were also similar to the circumstances involved in the execution of the search warrant inasmuch as all the offenses were drug related, ie., they involved the sale and/or possession of crystal methamphetamine or crystal methamphetamine paraphernalia. Because the circumstances of the drug buy case and the search warrant case are closely related, we believe the “circumstances” factor has been met.
Accordingly, we hold that the charged offenses in the search warrant case and the drug buy case arose from the “same episode” inasmuch as Akau’s conduct was “so closely related in time, place and circumstances that a complete account of one charge [could not have been] related without referring to the details of the other charge.” Carroll,
First, under the compulsory joinder statutes, multiple offenses that are closely related in time, place, and circumstances must be known to the prosecuting officer. See HRS § 701-109(2) (stating in part that “a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer”). And, second, such knowledge must be known “at the time of the commencement of the first trial[.]” Id. (emphasis added). In other words, because a defendant shall not be subjected to multiple trials, prosecutors—at the time they review (evidence submitted by the police that involve multiple offenses committed by the defendant, or at least by the time of trial (if those offenses were charged in separate cases)— must necessarily consider whether the offenses involve the same conduct or whether the alleged conduct constitutes a single episode.
Third, in deciding the singleness of a criminal episode, the prosecutor must, as indicated by our case law, consider “whether the alleged conduct was so closely related in time, place and circumstances that a com-píete account of one charge cannot be related without referring to details of the other charge.”
In the instant case, the prosecutor, in making a determination of the specific charges to be brought against Akau, would necessarily have been required to review the police affidavit in support of the search warrant—that included a factual accounting of the undercover drug buys, i.e., whether there was probable cause to sustain criminal charges. In conducting such review and evaluating probable cause, it is apparent that a complete account of the search warrant offenses could not be made without reference to the details of the undercover drug buys. Consequently, we also hold that all of the offenses brought against Akau should have been joined in a single prosecution.
Finally, our holding today is consistent with and promotes the policies underlying Hawaii’s compulsory joinder statutes, HRS §§ 701—111(1)(b) and 701-109(2), ie., “fairness to the defendant” and “society’s interest in efficient law enforcement.” Carroll,
Compulsory joinder of offenses which share a proximity in time, place and circumstances would not only protect the de*59 fendant from successive prosecutions based on the same conduct or episode, but it would also save the defendant and the [prosecution] time and money[.]
Id. Likewise, the commentary to HRS § 701-109(2) states that “[t]hese rules reflect a policy that defendants should not have to face the expense and uncertainties of two trials based on essentially the same episode.” Commentary to HRS § 701-109. As more aptly stated by the Pennsylvania Supreme Court, where two criminal cases “arise from the same episode” but are not joined, the criminal defendant is forced to “run the gauntlet repeated times and confront the awesome resources of the state.” Commonwealth v. Nolan,
Here, Akau was potentially facing “the expense and uncertainties of Wo [criminal prosecutions] based on essentially the same episode.” Commentary to HRS § 701-109. At the time Akau entered his no contest plea and was sentenced in the search warrant case—in February and April 2003, respectively—he was unaware that law enforcement officials, who had knowledge of the ding buy offenses, would be indicting him in the drug buy case. Having such awareness would presumably have had some impact on Akau’s trial strategy, including his decision to plead no contest to the charges in the search warrant case. Moreover, we observed in Carroll that HRS § 701-109(2) was “designed to prevent the [prosecution] from harassing a defendant with successive prosecutions where the [prosecution] is dissatisfied with the punishment previously ordered or where the [prosecution] has previously failed to convict the defendant.” Carroll,
Additionally, “society’s interest in efficient law enforcement,” Carroll,
Based on the foregoing discussion, we hold that the circuit court erred in denying Akau’s motion to dismiss based upon the prosecution’s failure to join the search warrant offenses and the drug buy offenses in a single prosecution. As such, we also hold that the ICA erred in affirming the circuit court’s erroneous denial.
B. Akau’s Remaining Contention
Akau additionally argues that the ICA erred in affirming the circuit court’s denial of his motion to be sentenced as a first-time drug offender pursuant to HRS § 706-622.5. However, in light of our holding, as discussed
IV. CONCLUSION
Based on the foregoing, we hold that, inasmuch as the offenses associated with the search warrant case and the drug buy case should have been joined in a single prosecution, pursuant to HRS § 701-109(2), the prosecution of the drug buy ease was barred by HRS § 701—lll(l)(b). Accordingly, we reverse the ICA’s October 11, 2007 judgment on appeal and the circuit court’s October 15, 2004 judgment of conviction in the drug buy case.
Notes
. The Honorable Michael A. Town presided over the underlying proceedings.
. HRS § 712—1242(1 )(c) (1993) provides: “A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly ... [distributes any dangerous drug in any amount.”
. HRPP Rule 11 (a)(2) states:
With the approval of the court and the consent of the [prosecution], a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to seek review of the adverse determination of any specific pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
. As indicated by the prosecution, Akau "was in fact arrested after he was indicted on three of the distribution offenses as noted in FOF No. 10.”
. HRS § 701-110(3) provides in relevant part: “There is a conviction if the prosecution resulted in ... a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the court.”
In the search warrant case, Akau entered a no contest plea which was accepted by the circuit court resulting in the circuit court's judgment of conviction and sentence; accordingly, under HRS § 701-110(3), the search warrant case resulted in a conviction for the purposes of HRS § 701-111(1).
. HRPP Rule 41(c) (2007) dictates that a search warrant must be executed "within a specified period of time not to exceed 10 days." (Emphasis added.) However, it is unclear from the record what factors the issuing judge examines in determining how long a search warrant will be valid for—i.e., one day or ten days.
. The circuit court made the following additional FOFs in denying Akau's motion to dismiss:
11. [HPD] Officer Shellie Silva testified that the distribution [offenses in the drug buy] case[] were not referred immediately to the [pjrosecutor's [ojffice as to not compromise the identity of the undercover officers who were*50 still involved in ongoing investigations unrelated to the instant matter.
12. There was no evidence that the prosecution delayed in bringing the indictment in the instant matter in order to gain a tactical advantage over [Akau] or to unfairly cause or expose him to stiffer penalties or punishment.
. HRS § 706-622.5 states in relevant part:
Sentencing for first-time drug offenders; ex-pungement. (1) Notwithstanding any penalty or sentencing provision under part IV of chapter 712, a person convicted for the first time for any offense under part IV of chapter 712 involving possession or use, not including to distribute or manufacture ... of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, or involving possession or use of drug paraphernalia under section 329-43.5, who is nonviolent, as determined by the court after reviewing the:
(a) Criminal history of the defendant;
(b) Factual circumstances of the offense for which the defendant is being sentenced; and
(c) Other information deemed relevant by the court;
shall be sentenced in accordance with subsection (2); provided that the person does not have a conviction for any violent felony for five years immediately preceding the date of the commission of the offense for which the defendant is being sentenced.
(2) A person eligible under subsection (1) shall be sentenced to probation to undergo and complete a drug treatment program.
(Some emphases in original and some added.)
. The 2003 version of HRS § 712-1242(3) stated:
Notwithstanding any law to the contrary, except for first-time offenders sentenced under*51 section 706-622.5, if the commission of the offense of promoting a dangerous drug in the second degree under this section involves the possession or distribution of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of ten years with a mandatory minimum temí of imprisonment, the length of which shall be not less than six months and not greater than five years, at the discretion of the sentencing court.
(Emphases added.)
. HRS § 701-109(3) states:
When a defendant is charged with two or more offenses based on the same conduct or arising from the same episode, the court, on application of the prosecuting attorney or of the defendant, may order any such charge to be tried separately, if it is satisfied that justice so requires.
Accordingly, based on HRS § 701-109(3), it appears that, prior to the entry of Akau’s plea of no contest in the search warrant case, the prosecution could have sought permission from the circuit court to bring the cases separately. However, neither the circuit court, the ICA, nor the parties address the effect of HRS § 701-109(3) on this case.
. We also note here our agreement with the interpretation of Keliiheleua set forth in the concurring opinion. See Concurring Opinion by Acoba, J. (Concurring Op.) at 60,
. In so asserting, the prosecution relied on this court's decision in State v. Lessary,
. In Miranda, the Colorado Supreme Court applied the test for determining when two cases arose from the same episode in its own jurisdiction. See Miranda,
. We recognize that, even though multiple offenses are known to the prosecutor during the charging-decision stage, the compulsory joinder statutes do not mandate that the prosecutor charge all of the offenses in a single complaint or indictment. Indeed, the prosecutor may charge the offenses in separate complaints or indictments; however, HRS § 701-109(2) appears to contemplate that, when the offenses arise from a single episode and are in the jurisdiction of a single court, the prosecuting officer must, at least by "the time of the commencement of the first trial,” HRS § 701-109(2), decide to seek either joinder of all offenses (as required by HRS § 701-109(2)) or separate trials (as permitted under HRS § 701—109(3)). Otherwise, once the first trial commences, the prosecution runs the risk of having the subsequent-charged-offenses dismissed or guilty verdicts on those charges overturned.
Concurrence Opinion
Concurring Opinion by
I concur but note the following.
The statute’s mandate that “a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial[,]” Hawai'i Revised Statutes (HRS) § 701-109(2) (1993),
The relevant “test for determining the singleness of a criminal episode should be based on whether the alleged conduct was so closely related in time, place and circumstances that a complete account of one charge cannot be related without referring to details of the other charge.” [State v.] Servantes, 72 Haw. [35,] 38-39, 804 P.2d [1347,] 1349 [ (1991) ] (quoting [State v.] Carroll, 63 Haw. [345,] 351, 627 P.2d [776,] 780 [ (1981) ]).
State v. Keliiheleua,
Obviously, application of the test will differ, depending upon the varying circumstances of the cases.
There is no probable cause requirement in HRS § 701-109, or that is alluded to in the commentary. Thus the absence of a “probable cause” link between the first charge brought and the second charge initiated, is not determinative of the statute’s application. Probable cause was not a factor in State v. Boyd,
Moreover, the order in which the cases are filed in court is not fundamentally decisive of the single episode issue. In this ease had the “buy” case been brought first and the “search warrant” case second, a complete account of the search warrant case could not be related without relating details of the buy case, thus rendering the search warrant case subject to dismissal as well. Inasmuch as the search warrant case could never be tried,
Although HRS § 701-109(2) focuses on the knowledge of “the appropriate prosecuting officer at the time of the commencement of the first trial,” (emphasis added), it may be impractical at that point in time to add a new charge to the trial without engendering substantial court delay and potential prejudice to the defendant. The offenses pertaining to the drug buy case occurred between October 8, 2002 and November 21, 2002. The offenses pertaining to the search warrant case occurred on November 26, 2002. Thus, in this case, it appears that all the offenses in question were known to the prosecutor at the time the first charge was made via complaint on December 5, 2002. The same episode test was, by definition,. applicable to the instant cases at the time of the first charge. Prudentially for the prosecution, then, the crucial question is whether, in considering the evidence known at the time of the first charging decision, a complete account of one charge cannot be related without referring to details of the other charge such that evidence to be presented in one case would substantively overlap evidence in the other ease. See supra note 2. Finally, if post-charge circumstances indicate that the offenses should not be tried together, then that contingency is met by rendering the cases “subject to the court’s power, in [HRS § 701-109] subsection (3), to order severance, if ‘justice so requires[,]’ ” Commentary on HRS § 701-109, as raised by motion of the prosecution or of the defense.
. HRS § 701-109 entitled “Method of prosecution when conduct establishes an element of more than one offense,” states in pertinent part as follows:
(2) Except as provided in subsection (3) of this section, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.
(3) When a defendant is charged with two or more offenses based on the same conduct or arising from the same episode, the court, on application of the prosecuting attorney or of the defendant, may order any such charge to be tried separately, if it is satisfied that justice so requires.
. Respectfully, in this regard, the dissent is incorrect in its comparison of the instant case to Keliiheleua. In Keliiheleua, the defendant was involved in an automobile accident on November 18, 2000, for which he was charged with the offense of negligent injury.
As related infra, the crux of the issue is whether "a complete account of one charge cannot be related without referring to details of the other charge” based on the close relationship "in time, place, and circumstances.” Id. at 181,
Second, the dissent contends that "[t]he evidence tending to prove a prima facie case against [Petitioner/Defendant-Appellant Anthony Kalani Akau (Akau)] in both criminal cases occurred ... at different places (835 Keeaumoku Street for the possession case, and, for the drug buy case, the area fronting 825 Keeaumoku Street and a men's restroom of a commercial establishment)!.]” Dissent at 67,
Third, the dissent argues that the discovery of the offenses in this case occurred under different circumstances, "namely, the offense in the drug buy case was alleged to have been committed as a result of the three undercover transactions, and the offenses in the possession case were alleged to have been committed as a result of the search of Akau's person,” and, thus, "any evidence tending to prove Akau's culpability in the possession case would not constitute a substantial portion of the proof in the drug buy case.” Dissent at 67,
Finally, in Keliiheleua the evidence necessary to prove the negligent injury offense was different from the evidence needed to prove the fraud offense. There would be little overlap in the proof adduced for the negligent injury and fraud cases as the two cases would necessitate the production of entirely different witnesses, documents, and testimony. Thus, the purpose of HRS § 701-109(2) to join trials such that defendants will not "have to face the expense and uncertainties of two trials based on essentially the same episode," commentary on HRS § 701 — 109, and to spare the State the time and expense associated with production of repetitive evidence, would not be served in Keliiheleua where there would be little to no overlap in the evidence required for the different charges.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. In my view, the facts of the distribution offenses in the drug buy ease and the facts of the possession case do not arise from the same episode.
The plain language of Hawaii Revised Statutes (HRS) § 701-109(2) (1993) clearly requires that
a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of commencement of the first trial and are within the jurisdiction of a single court.
(Emphases added.) I agree with the majority’s framework for analysis, insofar as the plain language of HRS § 701-109(2) mandates analysis of the following: (1) the condition of prosecutorial knowledge “at the time of commencement of the first trial” and whether the offenses “are within the jurisdiction of a single court[,]” see majority opinion at 56,
However, the majority’s analysis of the “time” factor is inconsistent with this court’s unanimous decision in State v. Keliiheleua,
Instead, “whether several criminal acts arise from the ‘same criminal episode’ for purpose of the compulsory joinder rule depends in the final analysis upon a close examination of the underlying facts on which the several offenses are based.” People v. Miranda,
Basing the application of the compulsory joinder statute on a determination of the interrelationship between the proofs of the several offenses properly focuses the trial court’s inquiry on the degree to which the defendant is harassed and judicial resources wasted by successive prosecutions .... Where the proof or defense of one charge necessarily involves the proof or defense of another charge, sequential prosecutions of the two charges burden both the defendant and the state with repetitive presentation of evidence. However, where the proofs of the charges are not interrelated, the prejudice to the defendant caused by separate prosecutions is minimal. For purposes of compulsory joinder, the requirement that offenses arise out of “the same criminal episode,” must be interpreted to include the condition that the offenses be connected in such a manner that prosecution of the offenses involve substantially interrelated proof. Crimes that are committed simultaneously or in close sequence, crimes that occur in the same or closely related place, and acts that form part of the schematic whole, generally involve interrelated proof.
Id. at 380-81; see State v. Boyd,
In Keliiheleua, 105 Hawai‘i at 181-82 & n. 9,
As it relates to the instant case, a distinction must be made between multiple prosecutions that share common characteristics on
It is this emphasis on the interrelatedness of proof between separate prosecutions that I believe was intended by this court to compel joinder when we held, in Carroll, that “the test for determining the singleness of a criminal episode should be based on whether the alleged conduct was so closely related in time, place and circumstances that a complete account of one charge cannot be related without referring to details of the other charge.”
This court’s jurisprudence reveals a similarity with the foregoing framework. In State v. Servantes,
Contrasting the facts of Servantes to Carroll, in Carroll, the defendant was arrested on October 19, 1978, for starting a fire at a school.
Likewise, in Keliiheleua, the defendant was involved in an automobile accident on November 18, 2000, and injured several people.
In the instant case, the search warrant was executed on November 26, 2002, at 835 Keeaumoku Street, whereupon 0.351 grams of crystal methamphetamine were found on Akau’s possession. In connection with the drugs that were recovered on that specific date and place, Akau was charged with promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993),
Contrary to the majority’s conclusion, the offenses allegedly committed in the drug buy case and the possession case are not “so closely related in time, place, and circumstances,” Carroll,
Accordingly, and in light of the foregoing analysis, I would hold that HRS § 701-109(2) does not apply to this case because the drug buy case does not arise from the “same episode” as the possession case. As such, I would affirm the ICA’s October 11, 2007 judgment, which affirms the first circuit court’s October 15, 2004 judgment.
. HRS § 712-1243 mandates that: “(1) A person commits the offense of promoting a dangerous drug in the third degree if the person knowingly possesses any dangerous drug in any amount. (2) Promoting a dangerous drug in the third degree is a class C felony.”
. HRS § 329-43.5(a) mandates that
It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chap*66 ter. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.
. HRS § 712—1242(1 )(c) mandates that "[a] person commits the offense of promoting a dangerous drug in the second degree if the person knowingly: ... (c) Distributes any dangerous drug in any amount, except for methamphetamine.”
. Respectfully, the majority misconstrues the concept of a "substantial factual nexus." Contrary to the majority's interpretation, the concept of a "substantial factual nexus” and the reasoning behind it merely serves to guide and clarify application of the "circumstances” factor of the Carroll test itself, similar in purpose to the majority’s reliance on a finding of probable cause. See Majority opinion at 56-58 & n. 13,
To reiterate the reasons for my dissent: (1) the majority's analysis of the "time” factor is clearly inconsistent with Keliiheleua, and (2) I do not believe that a finding of probable cause was intended by this court to swallow whole the "circumstances” factor of the Carroll test. Instead, the more germane consideration is whether "the facts and issues involved in the charges will be similar.” Keliiheleua,
As stated infra, although not binding upon this court, it is important that we recognize that the Carroll test was derived from Oregon case law. See Carrol,