*1
STATE GANAL, Sr., Defendant-
Orlando
Appellant.
No. 17327.
Supreme Court of Hawai'i.
8,May *3 Shigetomi Shigetomi
Keith S. Honolulu, briefs, for Thompson, on defen- Ganal, dant-appellant Sr. Orlando Mee, Prosecuting Deputy Caroline M. At- briefs, Honolulu, plaintiff- torney, on appellee State of Hawaii. KLEIN, MOON, C.J.,
Before RAMIL, LEVINSON, JJ. NAKAYAMA MOON, Chief Justice. Ganal,
Defendant-appellant Orlando Sr. *4 conviction, guilty appeals judgment, and (1) attempted first sentence for: (a) wife, estranged murder of Mabel Ga- his (b) (Mabel), (Michael), nal Michael Touchette (c) lover, the brother Mabel’s Mi- of (2) wife, (Wendy); Wendy chael’s Touchette (a) first of Ganal’s moth- father-in-law, Santiago Aradina and er- and Cruzes), (collectively, Dela Déla Cruz (b) children, Wendy’s Michael and infant (3) Touchette; Joshua Kalah use of a (4) felony; firearm of a the commission threatening of Ma- terroristic (5) lover, (David); bel’s David Touchette damage premis- property the criminal Laundry. employer, Young of his es (1) the appeal, argues pros- that: On present ecution did not sufficient evidence to probable cause that he committed establish damage Young at property (2) Laundry; improperly de- the trial court suppress nied his evidence found motion (3) truck; improperly his trial court de- use of a nied his to dismiss the fire- motion count; (4) deprived a fair of trial arm he was allegedly improper statements because his own out- prosecutor made and/or (5) court; court the trial erro- bursts neously to dismiss the denied his motion degree murder count because attempt is an offense under Hawai'i included - (1993).1 (HRS) § 701-109 Revised Statutes (b) only conspiracy provides pertinent part: One consists 1. offense HRS 701-109 other; or or solicitation to commit prosecution when estab- Method of conduct (c) findings required are fact Inconsistent of more than offense. lishes an element offenses; or to establish the commission conduct defendant When the same of a (d) only in that one is The differ offenses may an element of more than one establish designated prohibit kind of con- offense, defined to prosecuted may be the defendant prohibit spe- generally duct and the other ele- of which such conduct is an each offense conduct; not, however, cific such instance of ment. The defendant (e) continuing as a is defined offense than one offense convicted of more if: other, (a)One and the defendant’s course course conduct offense is included section; uninterrupted, unless the law of conduct was defined in subsection this below, For the reasons eventually discussed we reverse convinced Ganal not to him- shoot persuaded Ganal’s conviction and sentence as give to Counts self and gun. her the II III her, of the indictment and affirm Ga- Mabel then help called for Jun Jun to nal’s convictions and sentences on all other stopped but Ganal her and threatened to kill Counts. both Mabel and Jun Jun. When Jun Jun aid,
came to signaled Mabel’s Mabel to Jun I. FACTUAL BACKGROUND gun, Jun that Ganal had and Jun Jun left the house. Ganal and Mabel continued to many events that form the basis of the and, quarrel, they stopped arguing, after charges against Ganal in principally this case they Jun, they looked for Jun but could not night revolve August around the neighbor find him. A took Mabel back to the early morning August and the and, Waipahu, Dela Cruzes’ home in during largely We detail the relevant events in chro- night following day, Mabel nological order. periodically called Ganal to see if Jun Jun home, had returned but she learned that he August A. Events Prior to had not. Ganal testified at trial February on
15,1991, injured working his back while at job work, Young Laundry. 25,1991 Unable to Night August B. The *5 having difficulty obtaining workers’ com- Waipahu 1. The Dela Cruz House in pensation, despondent. Ganal became At time, wife, roughly Mabel, approximately At p.m., August the same Ganal’s 7:00 on began having David, girlfriend an affair Jun dropped Jun’s co- Jun Jun part-time job. worker at her off at the Dela Cruz Ganal became house. Mabel told Jun affair, suspicious father, through go Mabel’s Jun that she wanted him in- to to his vestigation, eventually but suspi- pick confirmed when Jun Jun called to his ask Ganal to up, cions. him began argue. Jun Jun and Ganal to Mabel then apologize called Ganal to for Jun early April as Mabel and Ganal’s Jun, her, but accusing Ganal swore at her of marriage began deteriorate, to began Ganal turning Mabel, against Jun Jun him. Jun times, calling friendly; David —at he was at Jun, dinner, and the Dela Cruzes then ate others, he family threatened David and his television, watched sleep. went to approximately with violence. At the same time, Mabel left par- Ganal to live with her night Mabel testified at trial on the ents, Ganal, the Dela Cruzes. Orlando Jr. August sleeping she was on a couch (“Jun Jun”), son, Ganal age and Mabel’s then parents’ at her house when she awoke to thirteen, continued to live with Ganal. sound of being open. the front door forced Mabel testified at trial Saturday, that on up, Mabel then looked saw a silver-colored August 1991, she was at gun, Ganal’s home to along and was shot the side of her head. pick up Jun Jun when began she and managed Ganal She to crawl to her brother’s room quarrel. quarrel escalated, room, culminat- and then to her father’s but the doors ing in pointing gun Meanwhile, at Mabel and to both rooms were locked. begging her to move in her, back with him. kicking intruder was punching but refused, pointed When Mabel gun she was unable to see who it was. Mabel’s awoke, his own head if to room, shoot himself. Mabel father came out of his and tried provides (b) specific periods attempt of conduct con- It consists of an to commit the stitute offenses. charged offense or to commit an offense other- therein; wise included or A defendant be convicted of an of- (c) charged only It differs from the offense charged fense included in an offense in the respect injury in the that a less serious or risk indictment or the information. An offense is injury person, property, pub- to the same so included when: lic interest or a different state of mind indicat- (a)It by proof is established of the same or ing culpability lesser suffices to es- required less than all the facts to establish the tablish its commission. charged; commission of the offense intruder, jeans, carrying object walking very stop but the intruder shot gray a dark or blue truck. The him. fast toward bed, object got put man the truck into sleep- Jun testified at trial that he was Jun truck, away quickly. Fitz- and drove ing on the floor next to the television patrick then noticed fire the Touchettes’ living Dela Cruzes’ room when he awoke to Clayt Neighbors Gary house. Guillermo yelling the sound of his mother his name. Kobashigawa Fitzpatrick’s corroborated tes- opened eyes his and saw Ganal in the He timony. light balcony. from the Ganal then shot Jun managed Wendy Touchette testified that on the Jun the mouth. Jun Jun she, husband, neigh- night, to a same her and their two elude Ganal and ran downstairs getting ready for bed when bor’s home. Jun Jun noted that Ganal was children were jeans. they phone call. Michael an- wearing blue received phone a few swered the and said “hello” brother, Diego (Diego), Mabel’s Dela Cruz Michael, times, responded. Wen- but no one asleep that he was in his room when testified dy, sleeping all and the two children were gunshots he was awakened the sound of Wendy awoke to the the main bedroom when screaming living and heard Mabel screaming. got up and sound of Michael She Fearing family’s safety, Diego room. for his saying, Michael was saw Michael on fire. immediately jalous- his knocked out bedroom here, here, he’s he was here.” “He was helped wife and child climb out- ies and said, said, Wendy “What?” and Michael “Or- outside, they Diego side. As crouched heard thereafter, lando,” out.” and “Get Soon pounding on his bedroom door and then the fire, Wendy also on and she tried unsuc- moaning hallway. sound of his father cessfully get for some to the bathroom inside, Diego When he climbed back found water, the fire was too hot. but sofa, dead, his mother bent over a and his stairway, Wendy struggled get out of sliding father down the covered Michael and *6 house, open door moaning. Dela but could not the front with blood and Aradina Cruz gunshot it was somehow locked from the died as a result of seven wounds. because Wendy eventually managed to Santiago Dela died as a result of multi- outside. Cruz door, ple injuries by gunshot reach the kitchen where someone internal caused three children, pulled out. The Touchette wounds. her Kalah, thermal burns and Joshua and died of Nishimura, Rosemary just who lived north Michael died smoke inhalation at the scene. that, house, of the Dela Cruz testified 23, 1991, later, September on as a result approximately p.m., a 11:00 she heard loud over complications related to severe burns noise, cement, pipe falling like a on followed Wendy eighty percent body. was se- of his out six shots. She looked toward verely approximately forty per- burned over Dela house and saw a man dark Cruz body scarring over of her and suffered cent clothing, appeared reloading gun. who to be a much of her face. Malapit, another of the Dela Cruzes’ Ven investigator testified at neighbors, gunshots, Fire Glen Solem heard the noises and window, house was garage a trial that the fire at the Touchette looked out his and saw accelerant, man, intentionally liquid with a possibly Filipino, holding gun started clothes, testified probably gasoline. Solem further dressed in dark run towards a dark- that, patterns and the on the burn lighter-col- colored truck with a based Chevrolet floors, it glass on the tailgate away. patterns of broken ored and drive appeared fires had been started that two 2. The Touchette House Kailua living separately in the room and the bed- gasoline being thrown into the room from Fitzpatrick, neighbor Barbara house. that, Touchettes, testified at trial on the 25, 1991, night August she heard the Young Laundry Premises glass breaking, followed a small sound of watchman, Young Laundry’s night Suesue explosion. Filipino She looked out to see a Faamamalu, man, at trial that he was on wearing jacket testified or local a dark that, up. upon testified Young Laundry premises at hands The officers patrol his drawn, guns with their approaching Ganal midnight August on approximately 12:00 hand, they not see Ganal’s left because burning could a fire on when he discovered Fearing Young kept he it in the truck at all times. building. the second floor of the Draee, safety, for their the officers instructed Ganal Laundry’s manager, testified Michael ground, but to lie face down on the jury proceedings Young that the grand at the comply. Burns and moved would not Clark Laundry plant operates twenty-four hours a hand; grabbed left Ga- working in in closer and Ganal’s day people are and that there swinging by yelling, kicking, nal resisted plant at all hours. Drace further testified arms, refusing placed prone in a sprinkler system extinguished the swept position ground. on the The officers Investigator Pukini testi- fire. Fire Warner him, placed him Ganal’s feet out from under investigation at trial that his indicated fied handcuffs, him intentionally and informed that he was fire set with a was scuffle, During the under arrest for murder. liquid. patterns sug- combustible The burn face, arms, bruises on his liquid Ganal suffered gested that the combustible exit, they rib area as well as a broken nose. Both poured where towards the back hitting Burns and Clark denied Ga- gas they suspected can that con- Officers found Ganal, Mabel, seeing anyone him. nal or else hit tained the accelerant. Jun Jun, tenant, Robinson, and Ganal’s Charles a.m., approximately At 6:40 Detective Ver- Young gas all identified the can found at the arrived at the scene of the arrest. non Santos Laundry being premises as similar to one time, By had moved to a been kept that Ganal in his tool shed at home. police vehicle. Detective blue-and-white arrest, police After Ganal’s search of Ga- informed Ganal that he was investi- Santos home, garage, produced nal’s and tool shed shooting gating a murder and that a had gas no can. house; at Ganal’s mother-in-law’s occurred sought cooperation in he to obtain Ganal’s 25,1991 August
C. Events After filling Department out an Honolulu Police (Form (HPD) form 393 or phone Ganal testified after his con- Consent Search form) Mabel, during evening for Ganal’s truck. Detective versation with consent appeared August Santos testified that Ganal calm he blacked out. The next write, read, thing waking up and that Ganal indicated could he remembered was truck, English. Detective morning perspiring next in his at a and understand Santos *7 through Form to inform beach in Makaha. He took off his clothes read the Ganal watch, key rights of his and asked Ganal for his consent ignition, and his left the in the only to search his truck. Ganal indicated that he and went into the water dressed in his that, rights, understood his read the form for underwear. Ganal further testified time, it, water, appeared he some to understand and while was the someone stole his clothes, and, signed it. The search of Ganal’s truck re- give he when shell, chase, subsequently object spent vealed one which sharp he cut his heel on a in the thieves, pursue was determined to match shells recovered water. Unable to the he the Déla and Touchette houses. drove home. Cruz hand, that, home, Ganal, police As drove the were the other testified Ganal al- on ready police of told aware the events that had tran- when he arrived home and the house, spired put up get at the Déla him hands and on the Cruz the Touchette his house, Young Laundry premises. ground, complied. police After hand- and the he the back, patrol, police they start- While on Honolulu officers cuffed his hands behind his elbows, ribs, recognized thighs, him George kicking Robert Burns and Clark ed on his arms, plate [his] Ganal’s license number and followed and and threatened to “break home, Burns him. Once Ganal arrived at his he face.” Ganal also claimed that Officer began open gate pounded ground. to exit his truck to to his his head into the Ganal driveway, signed point at which officers Burns and testified that he the consent further stop put told him Clark shouted to Ganal to and form because Detective Santos form, Davis testi- HPD Detective Charles “they going make sign did not Ganal’s. if he panel Dela did door to the that he that marks on the it hard for me.” Ganal asserted fied asking house, forcibly broken realize that Detective Santos was which had been Cruz homicides, and permission to search the truck night for his of the were into on that, by it thought saying he “make sledgehammer with use of a consistent hard,” the offi- gun Detective Santos meant that at Mokuleia. The the one found like up again” him if he did not empty cers would “beat four at Mokuleia also matched found cooperate. admitted that Detective from the casings and a bullet recovered shell form allowed him to read the consent house, Santos empty casing re- an shell Dela Cruz Detective read the but he denied that Santos Tou- from road front of the covered him. form to home, casing empty shell ehette in Ganal’s truck. found 30, 1991, August twelve-year-old Justin On snorkeling when Daite was Mokuleia gun sledgehammer
saw and retrieved a II. PROCEDURAL BACKGROUND approximately lying on the ocean bottom grand jury re- August On to five water turned three feet of Ganal, against a five-count indictment turned police. police over articles to the provided: which surrounding in the area searched shrubs charges: Jury The Grand shoes, pair grey and found of white Reebok socks, jacket empty day vinyl a black an I: or about the 25th COUNT On jeans, pocket, pair County maroon City August, bottle in the belt, Honolulu, empty Hawaii, bottle. another brown State of ORLANDO jeans’ pockets, GANAL, a BMW SR., knowing the officers found intentionally or did change, key ring, and a letter some loose person more ly cause death of than Department of Edu- incident, from the Hawaii thereby State in the same or parents cation addressed to Orlando in the committing of Murder the offense Ganal, of the envel- Jr. Written on back Degree, 707- First in violation Sections girlfriend’s 706-656[3] ope 701(l)(a)[2] was Jun Jun’s letter Hawaii girlfriend testified address. Jun Jun’s Revised Statutes. given over had address
she day of II: or about the 25th COUNT On 24,1991. telephone August on City County of August, Honolulu, Hawaii, ORLANDO key ring re- State the BMW Mabel identified GANAL, SR., an intentionally commit her did belonging as trieved from Mokuleia step in a substantial as act which constituted found at Mokuleia and the shoes and belt known to intended or belonging Jun identified a course conduct Jun also Ganal. person[4] more than one jacket cause the death of recovered from Mokuleia the black part shall provides pertinent sentence the court As of such 707-701 department public the director of the part: order authority paroling safety and the Hawaii degree. A Murder in the first governor to prepare application for the in the first *8 commits the offense of murder imprisonment to life commute sentence knowingly intentionally degree person if the or twenty years of im- parole end of with at the causes the death of: persons are who prisonment; provided that (a) person or the same More than one in shall repeat under section 706-606.5 offenders separate incident[.] mandatory mini- applicable serve least imprisonment. mum term of (2) degree felony for is a Murder in the im- shall be to which defendant sentenced for a Motion October Ganal filed 4.On prisonment provided in 706-656. as section alleged in decedents for the a Bill of Particulars 706-656(1) (1993) provides: § 3. HRS complaining in Count witnesses I and the Count granted, prosecution and the The motion was imprisonment for second II. Terms of first and Mo- Response to Defendant's second filed an Amended first and murder and Particulars, (1) setting the dece- Bill of forth for Persons of tion murder. convicted Cruz, being Santiago Dela degree attempted in Count I as mur- dents murder or Cruz, Touchette, and Joshua Dela Kalah imprisonment Aradina Touchette, to life der shall be sentenced setting complaining wit- forth the parole. and possibility without of incident, by threatening in or thereby- the same David on more Touchette committing Attempted than for or offense of Mur one occasion the same similar purpose, Degree, disregard in First in in reckless of the risk der violation of 705-500[5] 707-701(l)(a) Touchette, terrorizing of said Sections David there and 706- by committing the offense of Terroristic 656 of the Hawaii Revised Statutes. Threatening Degree, in the in First viola day III: COUNT On or about 24th 707-716(l)(a)[7] tion of Section Ha 1991, August, City County of in and of waii Revised Statutes. Honolulu, Hawaii, State of ORLANDO day or 26th GANAL, SR., COUNT V: On about the of knowingly possess did or August, City County in the and intentionally use or threaten to use a fire Honolulu, Hawaii, State ORLANDO engaged arm commission while of a SR., GANAL, intentionally damage did felony, whether firearm loaded or property, recklessly placed thereby not, not, operable thereby whether or person danger another or of death bodi committing Possession, the offense of Use ly injury, thereby committing the offense or to Use a in the Threat Firearm Com Property Damage Criminal in the First Felony, mission of a violation Section 708-820[8] Degree, in violation of 134-6(a) (d)[6] Section Hawaii Revised of the Hawaii Revised Statutes. Statutes. IV: day COUNT On or about the 1st January On Ganal filed a motion May, day to including the 10th for, particulars among a bill of other
July, City County in the of Hon things, felony which formed basis of olulu, Hawaii, charge State ORLANDO GA- the use firearm of a in Count III. SR., NAL, threatened, by granted, word or prosecution conduct The motion was bodily Touchette, injury responded by alleging felony cause to David in- Ganal, being ally II nesses in Count Mabel Mi- use or threaten to use of firearm while Touchette, Wendy engaged felony, chael Touchette. in the commission of a wheth- not, er the firearm was loaded or and whether (1993) provides pertinent 5. HRS 705-500 operable or not. part: (1) attempt. person guilty Criminal A is of an (d) Any violating person pos- this section person: attempt commit a crime if the sessing, using threatening or a firearm use (a) Intentionally engages conduct which engaged felony while of a commission would constitute the if the crime attendant guilty felony. Any person shall be of a class A person circumstances were as the believes violating by carrying possessing this section or be; them to or by carrying possessing or loaded firearm (b) which, Intentionally engages in conduct pistol loaded or unloaded or revolver without a person under the circumstances as the believes provided license issued as in section 134-9 be, step them to constitutes a substantial in a guilty Any person felony. shall be of a B class course conduct intended to culminate in the violating by carrying possessing this section person’s commission of the crime. firearm, pistol an unloaded other than a or a causing particular When result is an revolver, guilty felony. shall of a C class crime, person guilty element of attempt of an if, acting commit the crime with the (1993) provides pertinent 7. HRS 707-716 required liability state of mind to establish part: respect speci- to the attendant circumstances crime, person fied threatening degree. in the definition of the Terroristic in the first intentionally engages person in conduct which is a A commits the offense of terroristic step substantial in a course of conduct intend- threatening in the first if ed or known cause such a result. threatening: commits terroristic (3) Conduct shall not be considered a sub- step stantial under this section unless it is (d) dangerous With the use of a instrument. strongly corroborative of the defendant’s crim- *9 inal intent. (1993) provides: § 8. HRS 708-820 (Supp.1992) § provides perti- 6. HRS 134-6 property damage degree. Criminal (1) in the part: nent person A commits the offense criminal damage property per- or use Possession of firearm the if commis- firearms; felony; place intentionally damages keep property sion of a son to load- and there- firearms; (a) penalty, by recklessly ed places person danger It shall be unlawful another person knowingly for possess bodily injury. a or intention- of death or
367
jury which establishes
grand
a
Threatening in the
dence before
Terroristic
volved was
suspect
probable
a
has violated
cause that
Degree.
First
indictment.). “Proba
support
law
an
will
7, 1992,
February
Ganal filed a Motion
On
a
of facts as
ble cause means such
state
for Insufficient Evidence
Dismiss Count V
ordinary
person
caution or
would lead a
Suppress
secured
a Motion to
Evidence
and
conscientiously en
prudence to
believe
Both
were denied.
from his truck.
motions
guilt
strong suspicion
[the]
tertain
19, 1992,
February
a motion
Ganal filed
On
409-10, 862
Chung, 75 Haw. at
accused.”
II for violation of HRS
to dismiss Count
Okumura, 59 Haw. at
(quoting
P.2d at 1070
701-109,9
§
also denied.
which was
Kuba,
551,
119);
v.
68
584 P.2d at
State
cf.
1,1993,
jury
began March
and the
Trial
on
(1985)
1305,
184, 191,
1310
Haw.
706 P.2d
guilty of all counts on
returned a verdict of
(“Probable
when
cause has been established
23, 1993,
7,
April
Ganal filed
April
1998. On
prudent
it can be said that a reasonable
to dismiss
II for a
another motion
Count
have a
person viewing the evidence would
701-109,
arguing that
violation of HRS
crime has been com
strong suspicion that a
purposes
merged
I
II
Counts
mitted”).
reviewing
sufficiency of the
oral-
sentencing.
granted
Ganal was
leave to
probable
to establish
cause before
evidence
jeop-
ly modify the motion to include double
jury, “every legitimate
grand
inference
motion,
hearing
ardy at the
on the
may
from the evidence must
be drawn
Judgment
entered
motion was denied.
of the indictment and
be drawn
favor
1, 1993,
timely
July
appeal
this
fol-
on
appellate
nor the
court
neither the trial court
lowed.
judgment
its
as to
on review
substitute
weight
[that of]
of the evidence for
Kuba,
191,
Jury.”
III. DISCUSSION
Second, the circuit court
interrogation may
also looked to the
al
implicated,
be
must be
totality
denying
circumstances
Ga-
totality
determined from the
of circum
nal’s motion to
property damage
dismiss the
surrounding
stances
pur
the defendant’s
(1)
count, namely:
temporal
proximity of ported relinquishment
right
of a
to be free
25,
all
August
of the events of
1991—the
of unreasonable
searches and seizures.”
shooting at the Dela Cruzes’ residence at
Russo,
126, 137,
State v.
67 Haw.
681 P.2d
p.m.,
11:00
burning
of the Touchette
(1984)
553,
(quoting
562
Merjil,
State v.
65
p.m.,
Young
home at 11:30 to 11:45
601, 605,
(1982)).
864,
Haw.
655 P.2d
868
It
(2)
Laundry
midnight;
fire at 12:00
the fact
government’s
is the
burden to demonstrate
apparently possessed
that Ganal
the means
freely
voluntarily giv
consent was
offense,
to commit the
in that an accelerant
en, Merjil,
605,
65
Haw.
369
regard to the matter of wheth-
2. With
that his consent to
Ganal contends
voluntary
free and
he
not there was
truck was invalid because
was
er or
search his
truck, the
arresting police
prior
officers
to search Defendant’s
by the
consent
beaten
(1)
argues
findings
fact:
following
that:
giving
consent. Ganal
makes the
Court
his ar
by police at the time of
was beaten
allegedly
of the officers who
a. None
(2)
rest;
not find that he
the trial court did
any physical contact or
involved in
were
by police;
he was still
not beaten
was
offi-
were the same
beating of Defendant
beating
the influence of the
operating under
his
attempted to obtain
cers who
consent
at the
the consent form
when he executed
the truck.
to search
scene of his arrest.
that at
further notes
b. The Court
waiver,
though
A
uncoerced
even
Vernon Santos
time that Detective
if in
intelligently given, will be invalid
scene, it was Detective
at the
arrived
Pau’u,
prior illegality.
v.
duced
State
testimony that:
unrebutted
Santos’
505, 509-10,
833,
835-36
72 Haw.
1)
already in the blue
Defendant was
90, 94,
(1992);
Knight,
Haw.
621
State v.
63
vehicle;
police
white
(1980).
370,
the defendant
P.2d
374
When
2)
police
no
officers
That there were
predicated
showing
makes a
that waiver was
Defendant,
asserting their
next
search,
government’s bur
upon
illegal
an
authority
Defen-
force or
over
physical
invalidity
rebutting
of the waiver
den
dant;
been
[not]
to show that the waiver “has
is
illegality
3)
by exploitation
pretty
[but]
of that
come at
had been
That Defendant
sufficiently distinguishable
alone;
means
instead
much left
Pau’u,
purged
primary
taint.”
to be
4)
during
passed
had
That some time
(quoting
deemed waived.
Indictment.
b. The Court finds that when Detec-
tive Santos reviewed the HPD-393 form
argues
§
Ganal next
that HRS
134-
Defendant,
provided
Defendant was
6(a) (1993)
prohibit
“must be construed to
opportunity
with an
through
to read
prosecutions
involving felony
of cases
terror-
form.
threatening”
contrary
istic
if the
Having
opportunity
5.
had the
to listen
sustained,
prosecution
construction were
testimony,
to Defendant’s
the Court finds
right
equal protec
thereunder violated his
intelligent,
that Defendant is
understands
tion under both the United States and Ha-
English language,
and that he admit- wai'i Constitutions. We first address the
ted that he can
134-6(a).
read and write.
proper
§
construction of HRS
Therefore,
the Court finds that re-
134-6(a)
§
The current version of HRS
gardless
may
preceded
of what
have
possession,
criminalizes
use or threatened
arrival of Detective
may
Santos and what
provides
use of a firearm
pertinent
preceded
questioning by
have
Detec-
part:
consent,
tive Santos on the matter of
person
It shall be unlawful for a
to know-
given
when consent was
to Detective San-
ingly carry
person
on the
or have within
tos,
freely
voluntarily
consent was
person’s
immediate control or inten-
given.
tionally use or threaten to use a firearm
The issue of voluntariness is thus
engaged
while
sepa-
the commission of a
coercion,
reduced to the factual
issue of
felony,
rate
whether the firearm was load-
which,
turn,
rests on a determination of
not,
operable
ed or
and whether
or not[.]
credibility
by
made
the circuit court. As the
134-6(a)
addition,
§
(Supp.1995).
HRS
Patterson court noted:
version,
proviso specifically
current
power
judge credibility
of wit-
person
states that “a
prosecuted
shall not be
nesses,
testimony,
resolve conflicts in
under this subsection where weigh evidence and draw factual
infer-
felony
felony
is [t]he
offense of terroristic
ences, is vested in the trial court. On
threatening in
the first
under section
appeal[,]
presumptions
all
proper
favor
ex-
707-716(l)(d)[J”
134-6(a)(3)
...
§
HRS
power,
ercise of that
and the trial court’s
(Supp.1994).
findings
express
implied
whether
must
upheld
supported
if
by substantial evi-
According
particulars
to the bill of
filed
dence.
prosecution
case,
in the instant
the un-
58
134-6(a)
Haw. at
571
(quoting
felony
P.2d at 749
derlying
§
for the HRS
viola-
James,
People
99, 107,
v.
19 Cal.3d
561
charged
P.2d
tion
III
Count
was terroristic
(1977));
Cal.Rptr.
137
threatening
451
degree against
in the first
Mabel
State,
Domingo
716(l)(d).
see also
§
76 Hawai'i
Ganal under HRS
Conse-
707—
(“[A]n
appellate
quently,
prosecution
of Count III would
pass
court
upon
dependent
will not
issues
if
be invalid
the current version of HRS
134-6(a)
upon
credibility
§
applicable.
witnesses and the
were
original);
naked,
voluntary,
brackets in
see
suspect
also United States v.
not
handcuffed,
where the
was
Kim,
(D.
1992) (Defen-
F.Supp.
ill,
Hawai'i
quite
and surrounded
four
signature
Drug
dant’s
on a United States
En-
agents.).
armed
Agency
forcement
consent to search form was
However,
134-6(a)
statutory
incorporates
§
when HRS
was
definition
all of the
prohibit prosecution
amended in 1993 to
underlying felony
of whichever
elements
underlying felony
when the
is terroristic
allegedly being
statutory
committed. The
threatening
in the first
under HRS language requiring
knowingly
“to
707-716(l)(d),
legislature
expressly
possess
intentionally
use or threaten to
provided that the amendments were not to
use
firearm”
therefore be read to
matured,
rights
penal-
“affect
and duties that
specify separate
and distinct element of the
incurred,
proceedings
ties that were
134-6(a)
offense.
*13
begun,
were
before its effective date
June
[of
hand,
language
other
the
On the
HRS
18,
239,
1993].” See 1993 Haw.Sess.L.Act
134-6(a)
§
allowing
be
an over-
could
read as
§ 2 at
threatening
240. The terroristic
lap
underlying
between the elements of the
against
allegedly
Mabel Ganal
occurred on
felony
expressly
and the use of a firearm
24,
Therefore,
August
1991.
it is clear that
Therefore,
required therein.
we next consid-
134-6(a)
§
the current version of HRS
does
legislative history.
er
the statute’s
See
apply.
(“[I]n
Wells,
376,
at
78 Hawai'i
(1981) (“a
legislative history ... can
deadly
subsequent
rifle is a
or
vant
.22 calibre
Jones,
original legislative
Haw.
dangerous weapon”); State v.
61
be used
determine
(1979) (“[a]
210,
shot
597 P.2d
210
at 677.
intent.”
would HRS gering, possessory gun and to offenses —a true, specific requirement that is then the by contemplated Legislature result not 134-6(a) § HRS that the firearm be used provision’s enactment in at the time of the felony would become the commission of (Act 195). surplusage. interpret mere We cannot HRS 134-6(a) § in that manner. See State v. Or tiz, 343, 351-52, 74 Haw. 551- bill, Consistent with the intent of this (“It statutory rule of con cardinal your clarifying further Committee made give struction that courts are bound to effect amendments.... statute, clause, parts to all of a and that no Second, in- proviso was amended to sentence, or word shall be construed as su apply that section 134-6 does not sure void,
perfluous,
insignificant if a construc
persons charged
by
with offenses
def-
legitimately
give
tion can be
found which will
inition,
possession,
involve the
use or
preserve all
force to and
words
the stat
threatened use of a firearm and does not
ute.”),
denied,
reconsideration
74 Haw.
threatening in
include terroristic
the first
(1993).
volves
and is classified
for
leged
Prosecutorial Misconduct
Otherwise,
felony for that reason alone.
Dur-
Ganal’s Own Outburst19
and/or
would,
single
the involvement of a
firearm
ing Trial.
effect,
counted twice: once in the
Alleged
underlying felony and a
Misconduct
definition of the
1.
Prosecutorial
Closing
During
Arguments.
defining
second time in
felo-
ny.
argues
next
that the trial
Ganal
denying
court erred in
his motion for new
Objections
Bill No.
Statement of
to Senate
prosecutorial
trial
on
misconduct. The
based
Journal,
3145,
A
in 1992 House
at 746.
“is within the
denial of a motion for new trial
report accompanying
legislative committee
sound discretion of the trial court
will
bill, using virtually
lan-
the 1993
identical
discre
upset
not be
absent a clear abuse of
guage,
understanding of the
reiterated this
Furutani,
172,
tion.” State v.
76 Hawai'i
134-6(a).
§
original
intent of HRS
Sen.
(1994).
51,
178-79,
P.2d
“The trial
873
57-58
1217,
Stand.Comm.Rep.
No.
1993 Senate
clearly
it
court abuses its discretion when
Journal, at 1210.
disregards
of reason or
exceeds the bounds
that,
Finally,
general
practice
we note
principles
of law or
to the
rules
rule,
strictly
“[p]enal
party litigant.”
statutes are to be
con
substantial detriment of a
omitted).
Ortiz,
352,
(citations
179,
74
P.2d at
strued.”
Haw.
845
Id. at
State (1992). than in American culture “In more socialized order determine P.2d Trimillos, thing liv- you know. This about prosecutorial alleged misconduct whether error, pursuing the American ing in America and [the level of reversible reached the dream, during what he did I don’t know reviewing considers] the nature court] working, but I misconduct, that he was not promptness or lack that time alleged know, instruction, he must have strength just have —I don’t of a curative I him that if a lot of asked against the defen- watched TV. of the evidence weakness Senteno, he said no. (citing [sic] 69 Haw. dant.” Id. State (1987)). got [Ganal] I know where he don’t [4.] buckets, don’t gasoline, he had two we portions of takes issue with fourteen any that. I don’t think he have evidence of closing argument. prosecution’s way half of the half and held back went prosecutor injected per- that the contends con- He have had another bucket. sarcastic, criticized the opinion, sonal tainer, he threw nobody knows but argument, including prof- defense’s Ganal’s living gasoline room area. mitigating of extreme emotion- fered defense performance his [Ganal’s] You know [5.] is a or mental disturbance for which there al just typical soap, here was like a American arouse explanation, tried to reasonable him, Mr. decedents, pat. down I even asked he had it prejudicing thus sympathy for the Ganal, your guy had the how’s back? The jury against portions him. The My gall say me. back still it still hurts closing argument which prosecution’s people After all the innocent hurts. issue are as follows:20 Ganal takes killed, gall to come in here and he has the Ganal, example, and Take Mabel [1.] say my hurts. back yourself completely if forth- ask she was hurting his back wasn’t when How come coming she took the oath and testi- when mother-in-law six times? he shot his people still criticize me and fied. And will sledgehammer he used the When say, why you examine her didn’t cross the windows at the Touchettes’ smashed vigorously, you Hey, know. that’s more bucket, gallon five bucket of and threw me, you I think need to cross exam- didn’t *16 them, gasoline hurting was his back on ine Mabel— then? objected, objection and the was sus- [Ganal pain. suffering. He can’t (cid:127)He’s He’s tained.] pay give right Does that him the the bills. Gee, know, you Trimil- you talk about [2.] him, just betrayed because his wife his son Trimillos, [sic, Dr. los Ricardo Ricardo Ga- joined traitor on him and the other turned values], expert Filipino nal’s on culture and Drace[22] camp. pay want to Mike didn’t entertaining. Maybe thought I he was Comp. him his Workers’ He can’t make so, you think but what did some didn’t payments give he [sic] on the BMW [F]ilipino he contribute about the culture? gives right? him his wife. What any real studies about He didn’t do objected, objection was sus- and the [Ganal amok.[21] you He can tell a lot of little tained.] you [Filipinos, basically, tidbits about Well, know, gives right to come certainly you tell the ster what him the he could up you should be eotypical perception [F]ilipinos, kind of here and tell that he saying. guy, excused? That’s what he is a racist Ricardo. noted, object Philippines, “amok" in Asia and the a 20. Unless otherwise Ganal did not Southeast prosecutor specific cited great to the remarks of the culturally-based dis- condition of emotional individuals, here. turbance in under which a goes killing indiscrimi- loses control and about trial, During Ganal called Dr. Ricardo Trimil- nately. los, Program Studies at the chair of Asian Mánoa, University testify of Hawai'i at about indicated, previously a Michael Drace is topics 22.As Filipino Among culture and values. concept manager Young Laundry. Dr. Trimillos discussed was really know, they [6.] So there is no basis. What ways. They want it both want well, they’re experts] is, saying [Ganal’s explosive thing. you guys jury] experts, you be the [the going Judge [11.] You’re not to have diagnose he suffering what from. presiding judge] you Milks [the trial hand Here symptoms, pick you are the the one here, a big okay, you scale over so can break, you give
want. ifSo want to him a weigh the evidence and where it see tilts say that he was under extreme mental or beyond doubt, just figu- reasonable it’s emotional disturbance. speech, right. rative [sic] You don’t Anyway, gentlemen, [7.] ladies weigh anything. you need no scale to If defendant, you, urge I was not ex- thing under had a scale would—there’s so treme mental or emotional it, disturbance be- put much evidence that the State has know, cause fair, he was able to function you so well it’s tip it will scale he couldn’t have been no matter what he so far down it would it. break That’s a says. that, you And on I analogy. based will ask ridiculous Reason common give not to him an excuse in I’ll you got this case. sense is what to decide have this you— ask case on. objected prosecutor’s
[Ganal use of It’s so odd that driving [12.] he would be “excuse,” the term early the court morning only overruled his truck in the objection noting that “to the terminolo- What’s BVDs. so odd about that? It’s gy argument.”] this is [F]ilipino suit, bathing nothing that’s unusual. Huh? to talk
Well, You want about any him mitigation don’t allow know, stereotypes? why go You circumstances, extenuating you if want to water, suit, you buy bathing don’t have to word, fancy say use the that he should BVDs, your Probably big get wear deal. not be held accountable for what did. he [sic] lot of flack for that. guilty charged Find him on all counts. And, know, you being I’m sarcastic [13.]
[8.] It’s not a test of character. isWhat cynical maybe and all of that it’s gentlemen? ladies and This test is a jump up unfair because can’t your long character? How have I been But, know, you if he whack me wanted to. this, doing years, 50 ten United States big herring putting [red it’s the shibai America, every prosecutor has same act], amnesia, story on an this whole prove beyond burden to the ease a reason- up can’t remember. Stand like man and able doubt. it, say he did that’s the— burden, you [9.] And know that’s our objected, objection was sus- [Ganal People we’re of this not afraid burden. tained.] every day are on convicted burden
beyond only a reasonable doubt. I [14.] [Ganal said] The reason didn’t well, say put any that— he didn’t is, So as I get said the issue does he the bullets — only myself, reason I kill the didn’t he of extreme emotional —extreme benefit stopped thought himself about when he disturbance, mental or emotional the that’s grow up. and him Jun Jun wanted to see bottom line. Is that what de- the law is signed you Wendy to do? I mean did that Did for a minute think and hear he argument? grow to see kids Michael wanted their two up? Santiago he think Marsella[23] Did Aradina say anything [10.] Dr. didn’t grandchildren? see ... wanted to their you, like I because told giving he’s you grab objected bag. you the If feel for a mistrial. [Ganal want to and moved sustained, sorry guy, give objection for him the this a break. Does The was motion denied, he prosecutor deserve the was ad- benefit extreme mental was mean, jury, you presence emotional I Out of the disturbance? monished. Marsella, Anthony professor psychology Dr. on an individu- 23. the effects various life events Mánoa, University quali- level, at the of Hawai'i at general was the al’s stress as well about expert fied as an in cross-cultural and clinical concept "amok.” psychology. Dr. Marsella testified at as to trial 376 occasions, belief that defense witnesses prosecutor thought the her the stated that ' make, the had lied. Id. a
comment was fair one comment, fair but that “It is a court noted noting that constituted First the comments objection.”] it will draw 52(b), Rule this plain under HRPP error prejudicial impact of the court that the held added.) (Emphases by the remarks not rendered harmless was matter, because Ga- a threshold As jury re- instructions to the trial court’s 2, 3, 4, object at nal did trial to comments 661, P.2d at conviction. Id. at 728 versed the 9, 11, above, 6, 8, 10, and 12 must first we did, however, its court couch 1302-03. The alleged prosecutor’s determine whether the holding light of the inconclusive evi- “[i]n con making in those statements misconduct Marsh, against particularly egre- the dence plain error that affected Ganal’s sub stituted prosecutor presenting in gious conduct Rules of Penal Pro rights. Hawaii stantial issues, personal dispositive her views on the (HRPP) 52(b);24 v. State cedure Rule jury prompt a and the lack of instruction 1301, 1302 Marsh, 661, 659, Haw. 728 P.2d 68 prosecutor’s clos- specifically directed to the (1986); Churchill, 4 Haw. also State v. see ing remarks.” Id. 757, (1983). 763 App. 664 P.2d in the “inconclusive evidence” Unlike ap complained affirmatively conduct of must Marsh, much against Ganal was the evidence pear to be of such a nature that substantial plain stronger, we examine the issue of prejudicially af rights the accused were strength light in deter- error the such Churchill, 285, Haw.App. 4 at 664 fected. mining prejudice. Although we that believe however, conduct, any If P.2d such during prosecutor’s indecorous comments rights, implicates a defendant’s constitutional closing argument present case were resulting “an court appellate must reverse and, inappropriate, noting that the trial court conscientiously it con conviction unless can instruction, give believe did not a curative we setting particular clude that ‘in the of [the] comments, context, were taken insig unimportant and [the is] case error so egregious as made in Marsh as not so those nificant ... be harm [it] deemed right deprived have to a fair Ganal of ” 645-46, Pokini, 640, less.’ v. 55 Haw. State trial, plain giving rise to error. (1974) (brackets original) California, Chapman (quoting 386 U.S. remaining Regarding five state (1967)). (numbered 1, S.Ct. L.Ed.2d 705 prosecutor ments made 5, 7, 13, above), to which did Marsh, jury rob- In convicted Marsh of object, reviewing must court determine bery degree. prosecu- in the second trial court abused its whether the discretion testimony primarily on tion’s case rested on denying Ganal’s motion new trial victim, Leroy Ing. Marsh com- denied statement, prose that basis. In his first mitting robbery and an alibi asserted questioning credibil cutor was Mabel Ganal’s summation, During prosecutor defense. ity severely although much not as as— like— repeatedly personal opinion: “La- stated her present prosecutor in Marsh. gentlemen, very dies I feel it is clear and case, however, prosecutor’s statements convinced, too, hope you per- I are rambling appear to have been made son committed crime none oth- who this fashion, less-than-accusatory tone. *18 er than Christina Marsh.... I’m sure she the injecting personal opinion, Rather than the committed crime.” Haw. at jury prosecutor appears to have invited the “Referring P.2d at 1302. Marsh’s testimo- telling the question whether Mabel was your ny, prosecutor the common stated: ‘Use testimony. truth on her based sense, gentlemen. That is ladies fifth, seventh, lie, response true. It’s another lie. It’s ladies and to the comments, objected gentlemen, to the an out-and-out lie.’” Id. thirteenth Ganal statement, gives the prosecutor expressed, prosecutor’s also on “what him at least nine 52(b) they brought provides "[p]Iain although 24. to the HRPP Rule that noticed were not errors affecting rights or defects substantial attention of the court.” right, amnesia, contending story that the statement belit- whole can’t remember. statutorily recognized mitigating it, the tled de- up say Stand like a man and he did fense of extreme mental or emotional distur- objects]. [Ganal that’s the — comment, argues bance. Ganal this However, in view of: the fact that the along prosecutor’s with the use of the terms jurors individually were all voir dired after “excuse,”- accountable,” being “not held excused; juror Ganal’s outburst and one was man,” up referring “stand like a when to the (2) the fact that Ganal did not move for a mitigation, impermissibly denigrated the de- counsel; against mistrial advice of opposed fense itself as applicability to its trial, strength of the evidence adduced at prejudice, argues, Ganal. This Ganal could comment, we do not believe that the taken jury. not be cured instructions to the context, prejudicial was so so as to merit that, context, prosecution argues reversal of the conviction and a new trial. prosecutor merely cautioning was comment, Regarding the fourteenth Ganal jury not to excuse Ganal’s conduct out of argues because case involved the sympathy characterizing and was Ganal’s ex- people, deaths of five two of whom were pert’s give theories as invitations to Ganal a elderly, “ripe infants and two emotions were “break,” though proffered even defense abused,” prosecution to be took ad- apply. agree. did not We vantage during closing argu- of the situation respect With to the thirteenth com prosecution by asserting ments. The retorts ment, argues phrase, that the “he can’t prosecutor merely that the suggesting was me,” jump up impermissibly and whack re jury story could disbelieve Ganal’s jury ferred to and reminded the of Ganal’s testimony because his was inconsistent with previous violent outburst in the courtroom his conduct. while David Touchette was on the witness balance, noted, previously prose- On purpose stand. Ganal submits that closing argument profes- cutor’s lacked the jurors the remark was to remind the attorneys required sionalism and decorum previous Ganal’s outburst and to reinforce practice who before the bar of the courts of image they per had of him aas violent Hawai'i, precari- and the comments made are son, prejudicial effect of which could not ously constituting prosecuto- close to conduct be remedied curative instructions. The However, rial misconduct. taken the con- hand, prosecution, unconvincing on the other argument, text of the entire and in view ly argues prosecutor actually was Ganal, strength against of the case we referring to Ganal’s counsel and not to Ganal. comments, hold that none of the alone or in Although arguably ambiguous, fairly it is combination, would lead us to the conclusion prosecutor clear that the was indeed refer trial that the court abused its discretion ring to Ganal: denying Ganal’s Motion for New Trial. going He didn’t know what was on. What going on? going guys, What’s on here During David Ganal’s Outburst why you guys arresting part me? That’s Testimony. Touchette’s ploy? nothing, of his whole I know I black out, I slip amnesia. don’t know if it was a argues that trial Ganal next not, says but he was in [Ganal’s counsel] granted court have him a new trial should Mokuleia, Makaha, thought I he inwas but because his own outburst the courtroom matter, right,
it doesn’t we know was infra, testimony, during David’s discussed Mokuleia. prejudiced jury against During him. you testimony, up, grabbed guys jumped
Unless believe that these two David’s table, way go ran all pitcher around Kaena Point to a water on counsel’s And, forward, you lunged yelling: fucking hide his clothes Mokuleia. “You’re know, being cynical anything I’m sarcastic and liar. I never like that. You said *19 maybe point, deputy all of that unfair At a and it’s because asshole.” that sheriff intervened, jump up pitcher can’t if and whack me he wanted and the water fell to the But, know, shibai, you big ground to. it’s the counsel also tried this and broke. Ganal’s 378 being brought going
to
from
The trial
dant’s co-indictee resisted
into
block Ganal
forward.
Later,
courtroom;
joined in
began
a recess.
court
defendant
to
court then took
and
officers).
and,
jurors individually,
kick
examined each of
result,
Ganal,
juror
as a
one
was excused.
post-trial
We therefore hold that Ganal’s
however,
move for a
did not
mistrial.
prejudicial
motion for new trial based on the
effect of
own outbursts and
in the
his
actions
Many courts have held
it is not an
that
properly
courtroom was
denied.
deny
trial
abuse of discretion for a
court to
a
on
motion for mistrial based
a criminal de
Merger
E.
I and
Counts
II —First De-
conduct,
generally reasoning
fendant’s own
gree
Attempted
and
De-
Murder
First
grant
a mistrial under
circum
to
such
gree Murder.
would accord defendants an incentive
stances
provoke
they might
to
mistrials whenever
merger statute,
Hawaii’s
a
Under
Annotation,
generally
to
so. See
choose
do
defendant
not be convicted of more than
Disruptive Conduct Accused in Presence
if
offense is
in
offense
“one
included
Jury
Discharge
Mistrial
other,
701-109(4)].'”
as Ground
§
in [HRS
as defined
for
(1979
Jury,
Supp.
the offense of Degree. Murder the First added.) (Emphasis
A Presuming, commits the offense of appeal, jury Murder as we do on that a *22 see, in Degree intentionally instructions, the First if he will heed a e.g., or trial court’s Estrada, knowingly State v. causes the death of more than 69 Haw. (1987), person in separate jury the same or inci- was not free to victims,
dent. rearrange the or to leave some of the out findings regarding victims of their Ga- There two are [sic] material elements to nal’s intent in order to convict Ganal of each the offense of in Degree, Murder the First Therefore, of the homicide jury’s courits. proven by each of which must be the Pros- guilty verdicts of regard with to the first beyond ecution a reasonable doubt. These degree attempted murder and degree first two material elements are: charges necessarily murder included a find- GANAL, 1. That ORLANDO SR. ing possessed single that Ganal intent to Cruz, caused the deaths Aradina Déla kill specific group of victims named in Cruz, Santiago Déla Kalah Touchette and words, each jury’s count. other ver- Joshua in separate Touchette the same or guilty dict degree- on the first murder incident; necessarily jury count meant that the found possessed requisite Ganal intent to intentionally 2. That he did so or know- group people kill the specifically consisting ingly. Cruz, Cruz, of Aradina Santiago Déla Déla added.) (Emphasis Touchette, Joshua and Kalah Touchette. Similarly, jury’s guilty verdict of on the The relevant attempted instruction on first attempted degree first murder count neces- degree (requested by murder prosecution sarily jury meant that the found that Ganal given and by agreement) provid- as modified possessed requisite state of mind to kill ed: group people specifically consisting of Defendant, GANAL, ORLANDO Ganal, Touchette, Wendy Mabel Michael and SR., charged is with the offense óf At- Touchette. tempted in Degree. Murder the First (1) Accordingly, in findings view of: person A commits the offense of At- regarding the character of Ganal’s state of tempted Degree Murder in the if First necessarily by jury mind made associated intentionally engages in conduct which con- finding guilty with its verdict Ganal of first stitutes a step substantial in a course of degree attempted murder and first conduct intended or known to cause the (2) murder; impossi- our view it is death more than one in the same anyone logically ble for to conclude that Ga- separate incident. nal, having single started a fire at the Tou- Kailua, possessed anything chette home in There are two material elements to the single other than a intent to cause the death Attempted offense of in Murder the First therein, of all of the victims we conclude that Degree, proven each of which must be possessed single intent to cause the beyond a reasonable doubt. These two death of all of the victims named both the elements are: attempted murder and first de- 1. That the intentionally Defendant did gree murder counts of the indictment. Con- engage conduct, wit, by shooting Ma- sequently, we hold that the trial court erred bel burning Ganal and the Touchette 701-109(l)(a) declining apply §§ residence; (4)(b) merge Ganal’s conviction for 2. That such conduct pursuant constituted a sub- murder step stantial in a course of conduct intend- II Count of the indictment into his conviction ed or known to pursuant cause death of more I murder to Count wit, Ganal, person, indictment, than one Mabel because Count II “consists 113(a), charged” proscribing 18 U.S.C. assault attempt to commit the offense murder, with intent to where each is commit I.27 Count firearm, inapposite. ted with and is disagrees this conclusion The dissent Shaw, murder statute discussed U.S.C. arguments against principal raises two 1111(a), provides pertinent part juris- merger present in the other case: “[mjurder killing is the unlawful of human multiple allow convictions when a dictions Every aforethought. malice being with mur victims; injures multiple actions defendant’s wait, lying in perpetrated poison, der committed two statu- deliberate, willful, any kind of other mali tory independent based on acts. offenses cious, premeditated killing ... is murder however, arguments, miss The dissent’s degree. Any murder in the first other we discuss in turn. mark and each degree.” second F.2d at *23 First, noted, previously multiple- in Like the statutes at issue Austin and 392. degree provision of first victim Hawaii’s Butler, speaks in the murder statute Shaw unique, is murder statute dissent’s nothing multiple of victims. jurisdictions on case law from other reliance Second, the in dissent’s contention § support interpretation its of HRS 707- to keeping reasoning with the of the above-cited 701(l)(a) Indeed, inapposite. two of is 701-109(l)(a) cases, merger § under HRS is upon by relied for three eases the dissent inappropriate conduct because Ganal’s violat- mul proposition multiple that convictions for statutes, essentially separate two amounts ed tiple appropriate victims is are based on nothing more of than a restatement jurisdictions statutes from murder other degree attempted fact that first murder 707-701(l)(a) § no resemblance to HRS bear degree independently pro- first murder are merg provide guidance thus little in the Penal Code. scribed Hawai‘i This case, analysis present in the er see Austin v. lends no to our task contention assistance (Wis.1978) (“Un State, 668, 271 N.W.2d 671 assessing propriety of the trial court’s statute, degree one der the first murder is application § of HRS to the 701-109 facts of anoth guilty if he or she ‘causes the death of present case. being per human with intent to kill that er Stats.”) 940.01(1), goes lengths to great or another.’ Sec. The dissent eluci- son (Ind. State, 1035, degree 622 1038 first Butler v. N.E.2d date difference between (“[Ind.Code] murder, Ct.App.1993) imposes attempted degree 35-42-1-1 murder first liability knowingly asserting degree on a defendant who or that the elements of first being.” intentionally consummating kills human murder include another “the element 387, death,” original.)). re (Emphasis dissenting opinion The third case at P.2d dissent, upon States v. at and that crime and lied United the substantive (5th Shaw, Cir.1983), attempt 701 F.2d have state of “different mind elements,” dealing propriety dissenting opinion case with the at 917 P.2d federal imposition sentencing “specific for viola in that attempt enhanced is a intent” statutes, crime, “general tions of two federal 18 U.S.C. while murder is a intent” 1111(a), murder, disagree proscribing degree Although Id. first crime.28 we do merge pursu- person separate Because we Ganal's convictions the same or incident.” 109(l)(a) (4)(b), 707-701(a) §§ (Supp.1992). ant to HRS we Several con- do 701— arguments merger pursu- may degree not address Ganal's victions second murder instead 109(l)(e). §§ multiple ant to HRS ensue if the deaths result from acts 701— separate of mind. committed states extent that 28. To the the dissent contends that degree requirement of mind the state for first counsel Prior harbored fundamental mis- functionally murder is identical to the state of relationship apprehension of the between the murder, degree requirement of mind second we degree and second Counsel murder. ar- Briones, holding point clari- to our we .where long gued that as actor caused the as an death requirement of mind for first de- fied the state gree people of two or more he or she could be explicitly murder and that: noted convicted, barring other defenses of first de- degree gree A conviction for murder oc- murder. would Such a conviction alia, cur, asserted, “intentionally possible, when or not the inter or whether kill- knowingly ings causes the death of ... more than occurred or unrelated incidents. related that first murder,” murder and dissenting opinion at separate murder are in fact (emphasis two of- original), and that we “can- Code, fenses under our Penal the dissent is not and any statutory do[ ] not cite authority misguided to suggests the extent that it legislative history supporting [our] flawed independent the fact of statutory proscription interpretation.” assertions, Id. These how- any application has effect on merger; ever, misapprehend holding. our requi- can, contrary, merger definition, to the site intent for first murder is an only occur separately where two crimes are kill multiple people. intent to This is not to proscribed. however, say, the intent to kill must encompass all of the during victims killed The dissent’s seemingly inap- reliance on course criminal conduct. On the other posite authority preoccupation with the hand, if the defendant’s intent kill does separateness of charges that form the encompass victims, separate all of the addi- basis of Counts I and II of the indictment tional convictions of second against highlights misap- the dissent’s for the individuals included within the prehension defen- controlling principles gov- kill, dant’s intent additional erning merger analysis present groups convictions of smaller ease. It is true individuals charges that: are kill, included within the defendant’s intent independent founded on statutory grounds; *24 (2) pursuant must be principles vacated to engaged independent the of acts with merger. respect II; inescapable This result is an to Counts I and conse- counts quence victims; very of the legislature concern different intent of legisla- 707-701(l)(a) expressed during § ture amended its amendment of HRS to in- HRS § emphasized clude serial 707-701 purview by killers within the of the dissent first degree However, prosecution murder. enabled these and conviction for facts ulti- “seri- mately killings are of little al” separate assistance to our committed in assess- incidents. ment propriety 707-701(l)(a), § of the of the trial Pursuant court’s HRS and sub- resolution merger ject of the present proof, issue a may prosecuted defendant be noted, previously case. As analysis in an multiple-victim of for and convicted of first de- merger 701-109(l)(a) § under HRS gree killing murder for the of more than one (4)(b), question merger of ap- person However, when will separate incidents. ply to degree convictions for first murder principles merger of embodied in HRS murder, degree first § where 701-109 mandate if it is determined the two convictions concern groups distinct of spanned defendant’s intent to kill victims, governed by is the character of the space encompass killing and time to of requisite defendant’s homicidal state of mind. separate incidents, victims over the defen- Where a defendant single acts with a intent dant cannot also be convicted of the murders regard to all the victims involved in individually. Similarly, victims inas degree counts for first attempt- murder and case, present which involves numerous murder, degree ed first the counts must victims, § 701-109 likewise mandates 701-109(l)(a) merge pursuant § to HRS that the defendant cannot also be convicted (4)(b). any group the murder of subset of the scope victims that is included within the The dissent asserts that because “HRS ’ the defendant’s intent to kill. 707-701(l)(a) § applies killings to ‘señal re- sulting ‘separate from incidents’ ... a mur-
derer
possess
‘single
Bñones,
does not have to
As we made clear in
respect
intent’ with
to all of
requisite
degree
the intended
intent for first
murder in
707-701(l)(a)
guilty
victims in order to
degree
§
be
of first
unique:
violation of HRS
is
interpretation
required
This
multiple-victim
degree
fails to account for the
first
murder
offense,
greater culpability of the
Briones,
more serious
as noted in
the dissent’s contention that
clearly contrary
legislative
history,
to the
"completed
“general
all
murders” are
intent”
701-109(c).
and violates HRS
suspect.
crimes is
454-57,
Haw.
would
merger
have received had
not been
unique' language
Because
applied.29
707-701(l)(a)
provides
(Supp.1992)
person commits the
“[a]
offense murder
IV. CONCLUSION
degree if
person intentionally
the first
discussion,
foregoing
Based on the
Ganal’s
[mjore
...
knowingly causes the death of
II
are
convictions as to Counts
and III
re-
than one
in the same or
versed. The convictions and
as to
sentences
added),
(emphasis
majority
incident”
remaining
all the
Counts of the indictment
premise
jury’s
“the
starts with
ver-
are affirmed.
regard
degree
guilty
dicts of
with
to the first
attempted
degree
murder and
first
murder
Justice,
NAKAYAMA,
concurring and
necessarily
finding
charges
included
dissenting.
possessed
single
to kill
intent
majority
except
I concur
opinion
specific group of
named in
victims
each
n
part
as to
III.E. Because I believe that
Majority at
P.2d at
count.”
Ganal’s
conviction
Count II for the at-
mind,
premise
majority
fo-
With this
tempted
Ganal,
murder of Mabel
the fact that
set fire to the
cuses on
Wendy
Michael Touchette and
Touchette
home in
all four of
Touchette
Kailua when
merge
does not
I
with his conviction in Count
together,
were
and as a con-
Touchettes
for the first
murder of Aradina Dela
sequence Joshua and
Touchette imme-
Kalah
Cruz,
Cruz,
Santiago Dela
Joshua Touchette
diately
and became named victims
died
Touchette,
respectfully
and Kalah
I
dissent
count,
Michael1
while
part
from
III.E.
Wendy
Touchette survived and became
guilty
jury
After the
returned a verdict of
named victims
*26
(first
murder)
degree
for Count I
majority
and Count murder count. The
believes “it is
murder),
(attempted
degree
anyone
II
impossible
logically
first
for
to conclude
Ganal,
II, arguing
having
single
filed a motion
dismiss
fire at
to
Count
started a
the
that,
(HRS)
Kailua,
any-
under
possessed
Hawai'i Revised Statutes
Touchette home
701-109,
charges
completed
thing
single
for a
than a
to cause the
other
intent
therein,”
thus,
attempt
crime and an
of
to commit that same
death of all
the victims
merge
single
crime
possessed
must
when the
has
“Ganal
a
intent
cause the
defendant
completed
been convicted for the
crime. The
death
all of the victims named
both the
of
judge
motion,
attempted
degree
trial
denied Ganal’s
because
murder and
first de-
first
gree
Counts I and II involved two
sets of
Ma-
different
murder counts of the indictment.”
victims,
offenses,
381,
statutory
jority
majority
two different
as
than one
if:
offense
(a)
gun
in the
of Simmons
blast
direction
the oth-
One
is included in
offense
killed
er,
“only
injured
slightly
this
Simmons but
of
as defined
subsection
Wortham,
section;
....
a friend of
defendant’s
Willie
happened
standing
to be
near Simmons
A
be convicted
who
defendant
Austin,
an
in an offense
at 669.
offense included
at the time.”
271 N.W.2d
or the infor-
charged
indictment
“arguefd] that
conviction
The defendant
An
when:
mation.
is so included
attempted
both murder and
murder
for
offense
(b)
attempt
consists
an
to com-
It
by”
an includ
“define[d]
barred
statutes that
charged
mit
or to commit
...
attempt
crime
‘an
commit
ed
offense
”
therein;
....
otherwise included
offense
Id.
The defendant
charged.’
crime
at 672.
added).
majori-
(Emphasis
Contrary to the
‘transfer
argued
further
“that because
assertion,
ty’s
Count II did not consist
part
first-degree
intent’
which
attempt
Count I. While
Ganal’s
commit
statute,
attempt to
kill Simmons
charged
Count II
Ganal with the
killing
[we]re
the actual
of Wortham
[and]
surviving
murder of the three
part
of the same
part
the same act and
victims,
Ganal,
i.e.,
Michael Touchette
Mabel
first-degree
murder of Wort-
crime
Touchette,
charged
I
Ga-
Wendy
Count
added). Nevertheless,
(emphasis
ham.” Id.
four
nal with the first
murder of
an at
“[s]ince
the Austin court held
namely
four
completely
persons,
different
(some
tempt
require proof of
fact
does
Cruz,
Déla
deceased victims: Aradina
Santia-
preventing
completed
act
extraneous
Cruz,
go
Kalah
Déla
Joshua Touchette and
crime)
com
required
conviction of the
clearly
II
Counts I and
involved
Touchette.
*27
crime,
proper
pleted
conviction
both is
for
offenses,
victims,
different
different
different
(em
Id.
... where there are two victims.”
results,
thus,
and
proof, and different
Counts
added).
phasis
merge pursuant
II
not
to HRS
I and
should
ad-
The
cited
the defendant
statutes
701-109(l)(a)
(4)(b).
§§
and
only
is
dress the situation in which there
According to R.
Minor-
Owens’Alabama’s
sensibly preclude
quite
con-
one victim and
Single
Injuring
ity
A
Act
Status:
Criminal
the
successful and
viction for both the
Single
Multiple
Only a
Persons Constitutes
attempted murder of the same victim.
(1985-
Offense, 16 Cumb.L.Rev.
89-90
case,
truly
attempted
a
is
such
the
murder
1986), majority
jurisdictions
a
of
multi-
allow
is
form the
It
the inchoate
of
murder.
single vo-
ple
when a defendant’s
convictions
attempted
Thus,
anomalous to contend that the
injures multiple
litional act
victims.
actually
murder
of Simmons is
analogous
jurisdictions
cases
other
show
murder
Taking a
attempted
a
not
of Wortham in ckoate form.
count for
murder does
ever,
view,
argu-
common sense
conclude
“single
we
this
the Fifth
held that a
act
Circuit
may
single
ment is
cause
a
consequence;
without merit.
more than
therefore,
a
defendant
convicted of
added).
(emphasis
Id.
separate
arising
single
two
from a
offenses
Likewise,
Appeals
of
of
Court
Indiana
long
requires proof
act so
as each
of a fact
affirmed defendant’s conviction for both the
not essential to
other.” Id. (emphasis).
murder of a man
Allison
named
“Here,
charged
[the defendant]
under two
attempted murder of another man named
discrete
statutes with causing two
federal
Lark,
though
even
only
the defendant “had
types
distinct
harm to two
per
different
kill,
intent to
kill
one
the intent to
Lark[.]”
added).
(emphasis
sons.” Id. at 397
State,
(Ind.
Butler
622 N.E.2d
defendant’s
on both
“conviction
counts was
added).
Ct.App.1993) (emphasis
The defen
proper.” Id.
Lark,
had
gun
dant
aimed and
fired
case,
Similarly in the instant
was
split-second
in the last
pushed
but
Lark had
charged
committing
murder
at-
into
deadly path
on-coming
Allison
tempted
against
murder
two
different sets
bullet, causing Allison
suffer a fatal
chest
(1)
I,
victims:
the deceased victims of Count
respect
separate
wound. With
the two
(2)
surviving
victims of
II.
Count
(1)
(2)
offenses
the murder Allison and
These two
certainly
sets of victims were
no
Lark,
attempted
murder of
the Butler
fungible
more
types
than the two different
required,
court noted that “the
State
they
harm that
Each
two
suffered.
offense,
prove
each
an additional fact
represented
separate
sets of victims
require,
which the other
did not
offense
society. Therefore,
distinct interest of
even
namely
identity
separate
victims.” Id.
single
where Ganal
utilized
volitional act to
added).
(emphasis
if it
“Even
were correct
victims,
simultaneously
both
harm
sets of
argue
only
[the defendant] harbored
separate
Ganal invaded
two
at least
and dis-
intent,
Lark,
one
kill
intent to
he will not
society.
tinct interests of
where,
relief
jeopardy
find
under double
here,
separate
Here,
committed two
because,
important
this is
like
offenses.”
added).
(emphasis
cases,
Id.
“Each of the offenses
defendants in the above
Ganal invaded
included one element
included in
society
two
and distinct interests of
offenses,
other —a
victim.
violating
statutory
two different
offenses:
different
therefore,
merge
do not
[the
degree
defendant]
murder under
707-
701(l)(a)
may properly
separately
be sentenced
(Supp.1992), and
attempted first
consecutively
(empha
(1985).
for each offense.” Id.
murder under-HRS
705-500
added).
sis
When
statutory
these two different
offenses
victims,
concern two different sets of
single
fired a
Where
defendant had
bul
consummating
clearly
element
death
dis-
car, killing
injur
let at a
passenger
tinguishes the deceased victims
de-
of first
ing
passenger
hip,
a second
the Fifth
gree
surviving
murder from the
victims
affirmed
Circuit
the defendant’s conviction
Thus,
murder.
while
for, among
things,
other
the first
prosecution
to show
had
that Ganal’s
passenger
murder of the dead
and the as
actions caused the deaths of Aradina Dela
injured pas
with intent
sault
to murder
Cruz,
Cruz,
Santiago
Joshua
Dela
Touchette
Shaw,
senger. United States v.
701 F.2d
and Kalah
order to
Ga-
Touchette
convict
(5th
Cir.1983),
denied,
396-97
cert.
Shaw
I,
nal of
Count
States,
v. United
465 U.S.
104 S.Ct.
prosecution did not have to make such a
(1984).
1419,
first
a
(a
II).
surviving
in Count
Each
of mind element Ganal
victim
crime has a different state
gun
separate
attempted
an
“To
an
of Ganal’s
shots constituted a
than
crime.
constitute
stated,
independent
attempt,
inten-
and
act. And as
Ganal
the inchoate behavior must be
tional,
i.e.,
“acts”
that he
Commentary to
also committed different
purposeful.”
(1985);
I
§
v.
killed the deceased victims of Count while
see also State
HRS
705-500
178,
285,
Faulkner,
177,
surviving
failed to kill the
vic-
Haw.
P.2d
he tried but
61
599
(“Intent
II.
a defendant
“[W]here
is an essential element
tims
Count
286
According-
one criminal
or trans-
attempt”).
criminal
the context of
scheme
the crime of
attempted
independently
de-
action commits several acts
ly,
conviction for
first
Ganal’s
statutes,
required
jury to
one or more
gree
in Count II
violative of
murder
charges
specific
punished
prop-
all of them if
are
find that
acted with the
intent
for
Ganal,
by
erly
and
trial.”
kill
Touchette
consolidated
the State
Mabel
Michael
Mendonca,
363,
22, 24,
Pilago,
Wendy
v.
v.
65 Haw.
649 P.2d
Touchette.
State
State
Cf.
added)
(1985).
731,
(emphasis
(affirming a con-
Haw.
711 P.2d
735
365
murder,
firearm,
attempted
possession
prohibited
an
a
viction for
of a
In contrast with
“general
receiving, retaining
disposing
completed murder
a
intent”
of stolen
is
Kane,
450,
(firearm),
property
possession
a fire-
Haw.App.
v.
and
crime.
State
Cf.
(1982).
crimes);
by a person
647 n.
arm
convicted of certain
457-58 n.
652 P.2d
Pia,
jury
find
did not have to
that Ganal State
55 Haw.
(1973) (holding
prosecution
mind in
a
acted with an “intentional” state of
(a)
battery
police
degree
first
murder
both
assault or
on a
officer
order
convict Ganal of
I,
rather,
performance
jury merely need-
of his
with the
in Count
but
duties
discharge
intent to
“knowingly”
ed to
that Ganal acted
when
obstruct
officer
find
Cruz,
(b)
Santiago Dela
of those
and
willful interference
he killed Aradina Dela
duties
Cruz,
police
and Kalah Tou- with a
officer while such officer is
Joshua Touchette
707-701(1)
lawfully
(Supp.1992).
executing
did not violate
chette. HRS
duties
against
prohibition
jeopardy).
double
acting
between
intentional-
difference
adjudicated
I and II were
Counts
within
ly ...
...
is
knowingly
and
narrow but
trial,
same
record shows that Ganal
The distinction lies
nonetheless distinct.
separate
least
inde-
committed at
two
“acts”
a
the fact that intent is characterized
than
pendently violative more
one statute.
object
engage
con-
conscious
certain
circumstances, merger pursuant
Under these
a
duct or cause
certain result whereas
701-109(l)(a)
(4)(b)
clearly
§§
to HRS
is
knowledge is characterized
an aware-
unwarranted.
type
a
ness that conduct is of
certain
certainly
certain result will almost
701-109(l)(a)
§§
Merger pursuant to HRS
knowledge will
in-
obtain. While
in most
(4)(b)
addresses a different situation
penal liability,
stances suffice
establish
case in
is
than
instant
which defendant
number
there are a limited
charged
degree
of offenses
murder
with both the first
particu-
require
which
intent to
attempted
degree
effect
and the
first
murder of
lar result.
victims,
single set of
all whom die. Under
circumstances,
quite sensibly
merger
such
(1985) (em-
Commentary to
702-206
precludes
completed
conviction for both
added). Thus,
con-
phasis
in addition to the
attempted
murder of the
first
death,
summating
element of
victims,
attempted
same
because
attempted
murder and
murder
form of the first
inchoate
they
also differ in that
have different state
degree murder.
clearly
mind
committed two
elements. Ganal
statutory
different
offenses.
case, however,
In the instant
where Count
Finally,
independent
only
Ganal committed
acts
I involves
Ganal’s deceased victims
only
surviving
I
II.
II
vic-
respect
to Counts
For exam- Count
involves
Ganal’s
tims,
majority
ple,
independent
fired
it
is anomalous for
Santiago
gun
at Aradina and
Dela Cruz
contend that
murder of
shots
*29
actually
guilty
degree
surviving
of
to be
of first
murder.
victims is
murder
Some
Thus,
intentionally
the deceased victims in choate form.
it
serial
kill
killers
their victims
clearly wrong
majority
time,
merge
is
for the
to
through separate
one
at a
inci-
statutory
when,
two different
these
offenses
many
By
years.
dents over the course of
here,
charged
causing
Ganal was
with
as
two including
killings”
“separate
“serial
inci-
types
to two
different
of harm
different sets
sphere
§
dents” within the
of HRS
707-
victims, through
independent
of
various
acts.
701(l)(a),
legislature clearly
in-
Hawai'i
tended to
for
make it easier
courts to hold
majority
merger
insists that
of all
murder,
persons
degree
accountable for first
multiple-victim
degree
charges
murder
regardless
they
“single
of whether
have a
required
majority
is
because the
believes
respect
prospective
intent” with
all of their
to
degree
necessarily
a first
murderer
has
victims.
“single
respect
intent”
to all
with
example,
majority
intended victims. For
majority’s
today
application merger
of
following:
states
legislative
also conflicts
of
with the
intent
If the trier of fact determines that
701-707(l)(a) by
§
effectively improv-
HRS
possessed separate
defendant had
intents
ing
obtaining parole
Ganal’s
for
chances
after
individuals,
to kill
four
four
con-
twenty years.
enacting
§
When
HRS
701-
degree
victions for second
murder for each
707(l)(a),
legislature specifically
the Hawai'i
of
proper,
the victims
be
would
and one
persons
of
“intend[ed]
convicted
serial
degree
conviction for first
murder for the
killings
subject
imprisonment
be
life
to
with-
group,
four victims as a
or two convictions
parole.” Conf.Comm.Rep.
out
No. 51-86
groups
people,
for two
of two
would not be
1986 House Journal at
and in 1986 Sen-
proper.
added).
(emphasis
ate Journal at 747
Al-
Majority
However,
390 § penal statutes must be accorded a lim legislature by enacting HRS 707- All intended 701(l)(a). interpretation in to ited and reasonable order preserve purpose their overall and to avoid majority’s misapplication merger Gaylord, Haw results. State v. 78 absurd Cf. today language conflicts with the (1995); 127, 138, ai'i P.2d 707-701(l)(a) legislative history of HRS Taylor, 49 Haw. State v. escape accountability allowing Ganal to for (1967). 1014, 1021 majority’s interpreta degree attempted first murder Mabel merger today preserve tion of fails to Ganal, Wendy Michael Touchette and Tou- degree mur purpose overall of Hawaii’s first legislature’s Hawaii ex- chette. Given the patently produces der statute and absurd accountability press expand for first intent accountability escapes in which result murder, degree I do not believe attempted degree for murder of legislature preclude Hawaii intended to vin- Ganal, Wendy Mabel Michael Touchette for those victims who somehow man- dication fact, Touchette, when, people these were carnage age a first to survive the attempted clearly the victims of Ganal’s “single intent” kill “more than murderer’s degree murder. person.” one legis- It more reasonable assume sup- evidence in the record Substantial culpability have rela- lature intended that jury’s in- ports the conclusion that Ganal tionship magnitude crime Ganal, tentionally attempted to kill Mabel committed, including consideration of Wendy Michael Touchette. Touchette Otherwise, number victims. who legislative According language placed resulting a bomb in an airline 707-701(l)(a), history of HRS people deaths of dozens of would be less for should held accountable severely punished repeatedly than one who Contrary to ma- murder. gun persons, fired a a number of jority, I would affirm Ganal’s conviction casualty resulting figure. similar II. attempted first Count Mane, (Utah Ct.App. State v. P.2d
1989) (affirming a defendant’s conviction for aggravated
both first murder and
assault, though even one victim's death and injury nonfatal other victim’s were single
result of the defendant’s volitional act victims). firing one bullet at both