State v. CummingsState v. Cummings
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- Levinson
Lead Opinion
The defendant-appellant Craig Neal Cummings appeals from the September 20, 2000 judgment of conviction and sentence of the district court of the third circuit, the Honorable Joseph P. Florendo presiding, convicting him of and sentencing him for the offenses of driving under the influence of intoxicating liquor (DUI), in violation of
For the reasons discussed infra, we hold that the district court erred in denying Cummings’s motion to dismiss Count I of the complaint on the basis that it failed to allege the material elements of DUI. Because the foregoing is outcome dispositive of the present appeal, we do not address Cummings’s other - points of error. Accordingly we reverse Cummings’s conviction of and sentence for DUI.2
I. BACKGROUND
On August 11, 1999, the prosecution charged Cummings by complaint with DUI, in violation of
On March 11, 1999, Cummings was driving a jeep on Palani Road in the County of Hawai‘i when his vehicle crossed the center line and collided head-on with a vehicle driven by Tavita Laasaga. Randall Aequino, a passenger in Laasaga’s car, exited the vehicle and approached Cummings’s jeep, whereupon Cummings apologized to Aequino. Ac-quino noticed that Cummings was slurring his speech and smelled “a lot of liquor” on Cummings’s breath.
Hawai‘i County Police Department (HCPD) Officer Robert Sakata arrived at the scene shortly thereafter and noticed that Cummings’s eyes were bloodshot and glassy, that his speech was slurred, that he appeared as if he was “in a daze,” and that there was a “very strong” “odor of alcoholic beverage on his breath.” Hawai‘i County Firefighter Mark Evans, who also arrived at the scene shortly after the accident, found Cummings to be conscious but uncooperative and likewise noticed “a strong odor of alcohol” on Cummings’s breath.
Cummings was subsequently transported to Kona Community Hospital (KCH) where Dr. Beshoner, a physician certified in emergency medicine, treated him for his injuries. Dr. Beshoner noted that Cummings “had a strong smell of alcohol on the breath, was acting belligerent and uncooperative, and appeared ... to be clinically ... intoxicated.”
At trial, both Aequino and Laasaga testified on behalf of the prosecution that Cummings’s jeep had crossed the center line of Palani Road and had collided with them vehicle. In addition, HCPD Officer Bradley Freitas testified that his investigation of the scene, including the accident debris field, indicated that the collision had occurred in Laasaga’s lane of travel. James Mitchell, however, testified for Cummings as an expert in the field of accident reconstruction, that Laasaga’s vehicle had crossed into Cummings’s
At the conclusion of the prosecution’s casein-chief, Cummings orally moved to dismiss and/or for judgment of acquittal with respect to the DUI charge, on the basis that Count I of the complaint had failed to state a material element of the offense.
Count I stated:
On or about the 11th day of March 1999, in Kona, County and State of Hawaii, Craig Neal Cummings did operate or assume actual physical control of the operation of a vehicle while under the influence of intoxicating liquor, thereby committing the offense of Driving Under the Influence of Intoxicating Liquor, in violation ofSection 291-4(a)(l) , Hawaii Revised Statues, as amended.
Cummings argued that the complaint failed to allege that he was under the influence of intoxicating liquor “in an amount sufficient to impair the ¡person’s normal mental faculties or ability to care for oneself and guard against casualty [,] ” as required by
At the conclusion of the trial on September 20, 2000, the district court found Cummings guilty as charged.
II. STANDARD OF REVIEW
“ “Whether [a complaint] sets forth all the essential elements of [a charged] offense ... is a question of law,’ which we review under the de novo, or ‘right/wrong,’ standard.” State v. Merino, 81 Hawai‘i 198, 212, 915 P.2d 672, 686 (1996) (quoting State v. Wells, 78 Hawai‘i 373, 379, 894 P.2d 70, 76 (1995)) (some brackets added and some in original).
III. DISCUSSION
It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977)[; accord State v. Israel, 78 Hawai‘i 66, 69-70, 890 P.2d 303, 306-07 (1995); State v. Elliott, 77 Hawai‘i 309, 311, 884 P.2d 372, 374 (1994) ]. Put differently, the sufficiency of the charging instrument is measured, inter alia, by “whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he [or she] must be prepared to meet[.]” State v. Wells, 78 Hawai‘i 373, 379-80, 894 P.2d 70, 76-77 (1995) (citations and internal quotation marks omitted) (brackets in original). “A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.” Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 (citations omitted).
Merino, 81 Hawaii at 212, 915 P.2d at 686 (some brackets added and some in original). In other words, an oral charge, complaint, or indictment that does not state an offense contains within it a substantive jurisdictional defect, rather than simply a defect in form, which renders any subsequent trial, judgment of conviction, or sentence a nullity. See Israel, 78 Hawai‘i at 73, 890 P.2d at 310 (quoting Elliott, 77 Hawaii at 311, 884 P.2d at 374 (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244)); Elliott, 77 Hawai‘i at 312, 884 P.2d at 375 (“the omission of an essential .element of the crime charged is a defect in substance rather than form” (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244)); Territory v. Koa Gora, 37 Haw. 1, 6 (1944) (failure to state an offense is a “jurisdictional point”); Territory v. Goto, 27 Haw. 65, 102 (1923) (Peters, C.J., concurring) (“[failure of an indictment[,] [complaint, or oral charge] to state facts sufficient to constitute an offense against the law is jurisdictional[;] ... an indictment[,] [complaint, or oral charge] ... is essential to the court’s jurisdiction,” (brackets added));
(quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir.1965)).
In order not to be substantively defective, an accusation, in whatever form it is issued, must allege all of the essential elements of the offense:
[j]ust as the [prosecution] must prove beyond a reasonable doubt all of the essential elements of the offense charged, the [prosecution] is also required to sufficiently allege them and that requirement is not satisfied by the fact that the accused actually knew them and was not misled by the failure to sufficiently allege all of them.
Israel, 78 Hawai‘i at 73, 890 P.2d at 310 (quoting State v. Tuua, 3 Haw.App. 287, 293, 649 P.2d 1180, 1184-85 (1982) (citations omitted)) (some brackets added and some in original).
It is well established that “[w]here the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to person of common understanding, a charge drawn in the language of the statute is sufficient.” Merino, 81 Hawai‘i at 214, 915 P.2d at 688 (quoting Israel, 78 Hawai‘i at 73, 890 P.2d at 310 (quoting State v. Schroeder, 76 Hawai‘i 517, 529, 880 P.2d 192, 204 (1994))). But “where the definition of the offense includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species ... [and] descend to particulars.” Israel, 78 Hawai‘i at 73, 890 P.2d at 310 (quoting Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)); accord Merino, 81 Hawai‘i at 215, 915 P.2d at 689. Moreover, citing to a statutory reference does not cure a charge that merely states an element of the offense in generic terms. Elliott, 77 Hawai‘i at 311, 884 P.2d at 374. “To allow a mere statutory reference to cure the omission of essential elements would completely vitiate the rule of law developed in Jen-drusch, Motto, and Yonaha.” Id.
In the present matter, in order to convict Cummings of DUI pursuant to
As noted supra, the prosecution charged Cummings by complaint as follows:
On or about the 11th day of March 1999, in Kona, County and State of Hawaii, Craig Neal Cummings did operate or assume actual physical control of the operation of a vehicle while under the influence of intoxicating liquor, thereby committing the offense of Driving Under the Influence of Intoxicating Liquor, in violation ofSection 291-4(a)(l) , Hawaii Revised Statues, as amended.
Thus, the complaint failed adequately to allege a critical component of one of the material elements of the offense—i.e., that Cummings was under the influence of intoxicating liquor “in an amount sufficient to impair [his] normal mental faculties or ability to care for • [himself] and guard against casualty[.]”
Because the complaint failed to state a material element of DUI that the prosecution was required to prove, it failed to state an offense and, therefore, was fatally defective. Accordingly, the district court lacked subject matter jurisdiction to preside over the prosecution’s DUI ease against Cummings. That being so, (1) the district court erred in denying Cummings’s motion to dismiss the charge based on the defective complaint, and (2) the amendment of the complaint after the presentation of the prosecution’s case-in-chief failed to remedy the problem, inasmuch as the prosecution’s case-in-chief, absent a proper complaint, was a nullity, and the amended complaint could not confer jurisdiction retroactively.
The prosecution argues that the district court did not err in denying Cummings’s motion to dismiss and/or for judgment of acquittal and in permitting the amendment of the complaint on the basis that Hawai‘i Rules of Penal Procedure (HRPP) Rule 7(f) (1999) permits “a charge other than an indictment to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” The prosecution contends that the amended complaint did not charge any additional or different offense and that Cummings was not prejudiced by the amendment. We disagree. Because the original complaint failed to state a material element of DUI, it therefore failed to state an offense; that being so, the amendment of the complaint to permit it properly to charge DUI, stated an offense for the first time. Accordingly, HRPP Rule 7(f) is inapplicable in the present matter and the question of prejudice is irrelevant.
In sum, the district court erred in denying Cummings’s motion to dismiss Count I of the complaint.5 Because the foregoing holding is outcome dispositive of Cummings’s appeal, we decline to address his remaining points of error.
IV. CONCLUSION
In light of the foregoing, we reverse Cummings’s conviction of and sentence for DUI based on Count I of the complaint.
Notes
.
A person commits the offense of driving under tire influence of intoxicating liquor if ... [t]he person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor, meaning that the person concerned is under the influence of intoxicating liquor in an amount sufficient to impair the person’s normal mental faculties or ability to care for oneself and guard against casualty!.]
The offense of operating a vehicle under the influence of an intoxicant has been recodified as
. We affirm the district court’s judgment with respect to the infractions of
. Alternatively,: tire prosecution could have charged Cummings with DUI pursuant to
. Contrary to the dissent, we do not believe that the phrase “under the influence of intoxicating liquor” speaks for itself. Indeed, State v. Mata, 71 Haw. 319, 789 P.2d 1122 (1990), on which the dissent relies, see dissenting opinion at 4-6, confirms our belief that reasonable minds may differ regarding the phrase’s meaning, inasmuch as “the trial judge [in Mata erroneously] equated tire statutory term ‘under the influence of intoxicating liquor’ with the ‘slightest perceptible, appreciable or noticeable degree’ of impairment and instructed that impairment included ‘any interference with’ or ‘lessening of’ ‘alertness,’ ‘any weakening or slowing up of the action of the motor nerves,’-or ‘any interference with the coordination of the sensory or motor nerves’ which may cause sluggishness.” 71 Haw. at 331, 789 P.2d at 1128. If, indeed, the legislature amended the statute in response to the trial judge’s confusion in Mata, as the dissent suggests at 4 of the dissenting opinion, the legislature obviously believed that the phrase “under the influence” was not self-explanatory and required clarification. In any event, if we were to hold that tire phrase “in an amount sufficient to impair tire person’s normal mental faculties or ability to care for oneself and guard against casualty” was superfluous or unnecessary, as the dissent urges, we would render the legislature’s amendment of the statute meaningless, something we are hesitant to do. See Franks v. City and County of Honolulu, 74 Haw. 328, 339, 843 P.2d 668, 673 (1993) (“It is a cardinal rule of statutory construction that courts are bound, if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute.”) (Quoting State v. Wallace, 71 Haw. 591, 594, 801 P.2d 27, 29 (1990) (quoting Camara v. Agsalud, 67 Haw. 212, 215-16, 685 P.2d 794, 797 (1984)).).
. Moreover, the district court compounded its error in permitting the prosecution to reopen its case for the ‘purpose of amending the fatally defective charge after Cummings moved to dismiss the charge and/or for judgment of acquittal. This court has noted that “a defendant has ‘every right to wait until the [prosecution] ha[s] presented its case before moving for‘acquittal on the grounds that the [prosecution] ha[s] not proved [a] necessary element’ ... by virtue of evidentia-ry insufficiency!,]” and has held that it is an abuse of discretion for the trial court to permit the prosecution to reopen its case for the purpose of adducing further evidence after a defendant so moves. See State v. Kwak, 80 Hawai‘i 297, 305, 909 P.2d 1112, 1120 (1995) (quoting State v. Black, 66 Haw. 530, 531-32, 668 P.2d 32, 33-34 (1983) (citing State v. Miyashiro, 3 Haw.App. 229, 647 P.2d 302 (1982))) (some brackets added and some in original). A fortiori, a defendant may wait until the close of the prosecution’s case-in-chief before challenging a defective charge and it is an abuse of discretion for the trial court to permit the prosecution to re-open its case-in-chief for the purpose of amending a charge that fails to state an offense.
Dissenting Opinion
Dissenting Opinion by
MOON, C.J.,in which NAKAYAMA, J., joins.
I respectfully disagree with the majority’s holding that the DUI charge in this case was fatally defective because it “failed to allege a
This court recently reiterated that we “will interpret a charge as a whole, employing practical considerations and common sense.” State v. Sprattling, 99 Hawai‘i 312, 319, 55 P.3d 276, 283 (2002) (emphasis added) (citations omitted). In the present case, Cummings was charged with, inter alia, “op-erat[ing] or assuming] actual physical control of the operation of a vehicle while under the influence of intoxicating liquor,” in violation of
As the United States District Court of Appeals for the Thud Circuit has noted, Government of Virgin Islands v. Steven, 134 F.3d 526, 528 (3rd Cir.1998) (parallel citations omitted). As far back as 1929—only a couple of decades after the introduction of the Ford Model T,—the Minnesota Supreme Court recognized that “the expression ‘under the influence of intoxicating liquor’ is in common, eveiyday use by the people” and “[w]hen used in reference to the driver of a vehicle on public highways, it appears to have a well-understood meaning.” State v. Graham, 176 Minn. 164, 222 N.W. 909, 911 (1929). Given the common understanding of the term today, I fail to see how omission of the “magical” phrase “in an amount sufficient to impair the person’s normal mental faculties or ability to care for oneself and guard against casualty” could be viewed as omitting a “critical component” or a “critical facet,” see Maj. op. at 144, 63 P.3d at 1114, much less an essential element of the offense charged.
courts have recognized for over half a century that driving “under the influence” is commonly understood to mean driving in a state of intoxication that lessens a person’s normal ability for clarity and control. See, e.g, Weston v. State, [49 Ariz. 183,] 65 P.2d 652, 654 (1937); State v. Graham, [176 Minn. 164,] 222 N.W. 909, 911 (1929). This common understanding is consistent with the obvious purpose of drank driving statutes; i.e., to prevent people from driving unsafely due to an alcohol-induced diminished capacity. Because driving “under the influence” is commonly understood, it therefore puts citizens on fair notice of proscribed conduct.
Prior to 1991,
As amended, and in its entirety,
§ 291-4 Driving under the influence of intoxicating liquor, (a) A person commits the offense of driving under the influence of intoxicating liquor if:
(1) The person operates or assumes actual physical control of the operation of any vehicle while under the iiifluenee of intoxicating liquor, meaning that the person concerned is under the influence of intoxicating liquor in an amount sufficient to impair the person’s normal mental faculties or ability to care for oneself and guard against casualty[.]
Id. (emphasis added). The legislative history fails to explain why the law was amended to include a statutory definition of the term
The legislature’s clarification was perhaps a response to this court’s decision in State v. Mata, 71 Haw. 319, 789 P.2d 1122 (1990), issued shortly before the adoption of the statutory amendment. In Mata, the defendant was convicted of violating
In Mata, we declined to read into
Accordingly, based on the foregoing, I would conclude that the charge, as given, set forth with reasonable’ clarity all of the essential elements necessary to state an offense
. The jury was instructed that:
A person is under the influence of intoxicating liquor ... if he or she has consumed intoxicating liquor sufficient to affect his or her mental or physical facilities ... or abilities in such a way as to impair, to any perceptible, appreciable, or noticeable degree, his or her ability to operate a vehicle safely. The mere fact that a person has taken a drink does not automatically place him under the ban of the statute, unless such drink has some influence upon the person lessening, in some degree, his ability to operate an automobile safely.
The burden is on the State to prove beyond a reasonable doubt that the defendant’s consumption of alcohol impaired, to any perceptible, appreciable, or noticeable degree, the defendant‘s ability to operate a motor vehicle safely. The State need not prove that the defendant actually drove in an unsafe or erratic manner or that the defendant caused an accident. It must prove only a diminished capacity to operate safely.
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If the ability of the defendant to drive safely has been lessened to the slightest perceptible, appreciable, or noticeable degree by the use of intoxicating liquor, then the defendant may be deemed to be under the influence. That condition which brings a driver within the scope of driving under the influence is any interference with or lessening of alertness, any weakening or slowing up of the action of the motor nerves, or any interference with the coordination of sensory and motor nerves which may cause sluggishness where quickness of action is required or which may otherwise signal a diminished capacity to operate a vehicle safely.
Id. at 328-29, 789 P.2d at 1127-28 (emphases added).
. Pursuant to