State v. JumilaState v. Jumila
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Lead Opinion
Defendant-appellant Clemente B. Jumila, Jr., appeals the Third Circuit Court’s denial of his motion to reduce sentence and correct illegal sentence pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 35. For the reasons set forth below, we vacate the circuit court’s denial of Jumila’s HRPP Rule 35 motion and reverse Jumila’s conviction and sentence on the Hawai‘i Revised Statutes (HRS) § 134-6(a) charge.
I. BACKGROUND
In December 1995, Jumila pleaded no contest to charges of murder in the second degree, in violation of
Jumila thereafter filed a motion, pursuant to HRPP Rule 35, to reduce sentence and correct illegal sentence, which the circuit court denied on May 6, 1996. This timely appeal followed.
II. DISCUSSION
A. Analysis
On appeal, Jumila argues that, because he was sentenced to a mandatory minimum term of fifteen years in connection with the second degree murder charge, the charge of carrying or use of a firearm in the commission of a separate felony was an included offense, as defined in
According to
Jumila’s
This analysis is analogous to that set forth in State v. Vinge, 81 Hawai‘i 309, 318-19, 916 P.2d 1210, 1219-20 (1996), wherein we concluded that the offenses of “theft and attempted theft, regardless of degree, are included offenses of first degree robbery.” 81 Hawai‘i at 319, 916 P.2d at 1220. In Vinge, we noted that, because robbery in the first degree is defined by
in order for the prosecution to prove that a defendant committed robbery in the first degree, the prosecution must also prove— as an element of first degree robbery—all the elements of theft or attempted theft. Therefore, because (1) theft is an element of first degree robbery, (2) a defendant cannot commit first degree robbery without committing theft or attempted theft, and (3) attempted theft is an included offense of theft, seeHRS § 701-109(4)(b) , we hold that theft and attempted theft, regardless of degree, are included offenses of first degree robbery.
Id.
Because the felony underlying an
In order to remedy the
In the instant case, however, the included offense is murder in the second degree, an offense of a higher class and grade than
B. Response to Dissent
The dissent essentially argues that the legislature intended that an individual could be convicted of both an
We have found no indications in the language of
The dissent further asserts that our holding in the instant case is incorrect because it “effectively nullifies”
First, we note that there are far more class B and C felonies than murder-related and class A felonies that could be the underlying felonies in
III. CONCLUSION
For the foregoing reasons, we (1) vacate the circuit court’s order denying Jumila’s motion to reduce sentence and correct illegal sentence and (2) reverse Jumila’s conviction and sentence on the
Notes
.
Murder in the second degree. (1) . . . [A] person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.
.
Carrying or use of firearm in the commission of a separate felony; place to keep firearms; loaded firearms; penalty, (a) It shall be unlawful for a person to knowingly carry on the person or have within the person‘s immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, whether the firearm was loaded or not, and whether operable or not; provided that a person shall not be prosecuted under this subsection where the separate felony is:
(1) A felony otherwise defined by this chapter;
(2) The felony offense of reckless endangering in the first degree under section 707-713;
(3) The felony offense of terroristic threatening in the first degree under section 707-716(1)(a), 707-716(1)(b), and 707-716(1)(d); or
(4)The felony offenses of criminal property damage in the first degree under section 708-820 and criminal property damage in the second degree under section 708-821 and the firearm is the instrument or means by which the property damage is caused.
.
Sentence of imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm in a felony. (1) A person convicted of a felony, where the person had a firearm in the person‘s possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, may in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:
(a) For murder in the second degree and attempted murder in the second degree—up to fifteen ycars[.]
. There is no question that the
. Although Jumila entered pleas of no contest to the second degree murder and
.We are mindful of the principles espoused in State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977), and State v. Kuuku, 61 Haw. 79, 595 P.2d 291 (1979), wherein this court ruled that:
[a] denial of [the] rights [to due process and the equal protection of the laws] would . . . result . . . if a violation of [a] misdemeanor statute . . . would invariably and necessarily constitute a violation’ of [a] felony provision .... Thus, where the same act committed under the same circumstances is punishable either as a felony or a misdemeanor, under either of two statutory provisions, and the elements’ of proof essential to either conviction are exactly the same, a conviction under the felony statute would constitute a violation of the defendant’s rights to due process and the equal protection of the laws.
[Modica], 58 Haw. [at] 250-51, 567 P.2d [at] 421-22 . . . (citations omitted). The “Módica rule,” which applies equally to the possibility of prosecution and conviction under two differently classed felonies (for example, under either a class [A] felony statute or a class C felony statute) . . . was expressly reaffirmed in . . . Kuuku, 61 Haw. [at] 80-81 [ & n. 1], 595 P.2d [at] 293 [ & n. 1]....
State v. Hoang, 86 Hawai‘i 48, 51, 947 P.2d 360, 363 (1997); State v. Arceo, 84 Hawai‘i 1, 22, 928 P.2d 843, 864 (1996) (citing State v. Aluli, 78 Hawai‘i 317, 324, 893 P.2d 168, 175 (1995)) (Levinson, J., concurring).
However, because “the elements of proof essential to” a conviction under
. Because we are reversing Jumila’s conviction and sentence on the
. The discussion on pages 7-8, 950 P.2d at pages 1207-1208 of the dissenting opinion expressly sets forth the dissent’s interpretation of the legislative intent. Furthermore, to the extent that the dissent contends that
. As stated in’ the cited committee report, the purpose of the bill at issue was only to:
(1) Make it unlawful to knowingly carry or have in a person’s immediate control a firearm while engaged in the commission of a separate felony;
(2) Provide that a person shall not be prosecuted undersection 134-6(a) where the separate felony involves a possessory gun offense under Chapter 346, the offense of reckless endangering in the first degree under section 707-713, or the offense of terroristic threatening in the first degree except where a public servant is involved—all of which already have enhanced penalties for the use or possession of a firearm; and
(3) Applies the new provisions to convictions occurring after the approval of the Act.
. The ten class A felonies defined by the HPC are: Manslaughter,
Of these, pursuant to our holding in State v. Ganal, 81 Hawai’i 358, 373, 917 P.2d 370, 385 (1996), because
.Some of the class B and C felonies defined in the HPC that could be the underlying felonies for
The foregoing list is not meant to be exhaustive and, among other things, does not include any class B or C felonies that already include the use of a dangerous instrument or weapon as an element In addition, the list does not include any of the class B and C felonies that are defined outside the HPC. However, we note that with respect to most of the class B and C felonies that are defined outside the HPC, it is unlikely, though theoretically possible, that anyone would be prosecuted for carrying a firearm while committing such offenses. The few exceptions might be: Forcibly Resisting a Poultry Inspector,
Dissenting Opinion
with whom NAKAYAMA, Justice, joins, dissenting.
Because I disagree with the reasoning applied and the result reached by the majority in this case, I respectfully dissent. I would vacate Jumila’s mandatory minimum term
I. DISCUSSION
A. Whether Second Degree Murder is an Included Offense of Carrying or Use of a Firearm
Relying on
I believe that the intent of the legislature in enacting
[o]ur primary duty in interpreting and applying statutes is to ascertain and give effect to the legislature’s intention to the fullest degree. Although the intention of the legislature is to be obtained primarily from the language of the statute itself, we have rejected an approach to statutory construction which limits us to the words of a statute!,] • • ■ for when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Thus, the plain language rule of statutory construction, does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.
Sato v. Tawata, 79 Hawai‘i 14, 17-18, 897 P.2d 941, 944-45 (1995) (quoting Richardson v. City & County of Honolulu, 76 Hawai‘i 46, 68-69, 868 P.2d 1193, 1215-16 (Klein, J., dissenting), reconsideration denied, 76 Hawai‘i 247, 871 P.2d 795 (1994)) (alterations in original).
In the present case, the legislative history of
Nothing in the text of
Furthermore, Hawai‘i case law implicitly supports allowing a defendant to be convicted of both
Therefore, in my view, the legislature intended to allow defendants to be convicted of both a violation of
The majority relies primarily on
We have often held that
where there is a “plainly irreconcilable” conflict between a general and a specific statute concerning the same subject matter, the specific will be favored. However, where the statutes simply overlap in their application, effect will be given to both if possible, as repeal by implication is disfavored.
State v. Vallesteros, 84 Hawai‘i 295, 303, 933 P.2d 632, 640, reconsideration denied, 84 Hawai‘i
We have also held that
a rational, sensible and practicable interpretation of a statute is preferred to one which is unreasonable or impracticable because the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality.
Keliipuleole v. Wilson, 85 Hawai‘i 217, 221-22, 941 P.2d 300, 304-05 (1997) (brackets, internal quotation marks, and citations omitted). The majority’s analysis in the present case leads to an absurd result. Carrying or use of a firearm under
Of course, the prosecution could respond to the majority’s approach by initiating some practical measures. The prosecution will probably alter its charging policies in order to take into account the fact that, under the majority’s analysis, a defendant can be convicted of the underlying felony or
I also disagree with the majority’s reliance on State v. Vinge, 81 Hawai‘i 309, 916 P.2d 1210 (1996). In Vinge, we held that theft and attempted theft are included offenses of robbery in the first degree. Id. at 319, 916 P.2d at 1220. However, Vinge is distinguishable from the present case based on the offenses involved. Vinge involved robbery, and robbery is essentially a combination of theft and assault. The Commentary to
For these reasons, I disagree with the majority’s analysis and would not hold that second degree murder is an included offense of carrying or use of a firearm in the commission of a separate felony.
B. Whether Double Jeopardy Bars Imposition of a Mandatory Minimum Term
Instead of deciding this case based on the included offense issue, I would decide the case based on double jeopardy principles. Jumila argues that the constitutional right against double jeopardy prevents imposition of “dual punishment” under both
The Fifth Amendment to the United States Constitution provides in relevant part: “No person . . . shall be subject for the same offence to be twice put in jeopardy of life or limb[.]” Article I, section 10 of the Hawai‘i Constitution provides in relevant part: “No person . . . shall be subject for the same offense to be twice put in jeopardy[.]” We have often recognized that double jeopardy is implicated in three types of situations. “Double jeopardy protects individuals against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Tuipuapua, 83 Hawai‘i 141, 148, 925 P.2d 311, 318 (1996) (quoting State v. Toyomura, 80 Hawai‘i 8, 16, 904 P.2d 893, 901 (1995)). See also North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969). It is clear that the present case does not involve successive prosecutions. Rather than being prosecuted in two separate proceedings, Jumila was convicted of two offenses, and subjected to punishment for those convictions, in a single proceeding. Thus, the first two protections described above do not apply to this case. Rather, it is the third protection— multiple punishments—that is implicated here.
Because we are dealing with the multiple punishment aspect of double jeopardy, a threshold question is whether the three statutes involved in this case impose “punishment” for double jeopardy purposes.
A more difficult question, however, is whether mandatory minimum terms imposed pursuant to
The legislative history of
The legislature finds that alternative methods of discouraging the use of firearms such as stronger and more certain penalties should be instituted, it is the purpose of this Act in view of the increasing use of firearms in criminal actions to provide a deterrent effect against such use for the protection of the people in this State.
1976 Haw. Sess. L. Act 204, § 1, at 493 (emphasis added). See also Hse. Conf. Comm. Rep. No. 35, in 1976 House Journal, at 1143; Sen. Conf. Comm. Rep. No. 34-76, in 1976 Senate Journal, at 883.
In addition,
[w]e have repeatedly recognized that one provision of a comprehensive statute should be read in context of other provisions of that statute and in light of the general legislative scheme. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.
Kam v. Noh, 70 Haw. 321, 326-27, 770 P.2d 414, 417-18 (1989) (citation omitted). Because
Therefore, the threshold question posed above has been answered‘—the three statutes involved in the present case impose “punishment” for double jeopardy purposes. The next question is what standard to apply in multiple punishment cases.
The federal standard interpreting the Double Jeopardy Clause of the United States Constitution was succinctly set forth in United States v. Lanzi, 933 F.2d 824 (10th Cir. 1991), as follows:
[T]he first step in the double jeopardy analysis is to determine whether the legislature intended that each violation be a separate offense. Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). If the legislature, as expressed in the language of the statute or its legislative history, clearly intended cumulative punishment under two different statutory provisions, the imposition of multiple punishment does not violate the Double Jeopardy Clause and the court’s inquiry is at an end. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). If the legislative intent is unclear, however, the rule from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), must be applied. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. Then, the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether eachprovision requires proof of a fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.
Lanzi, 933 F.2d at 825-26 (internal quotation marks, brackets, and ellipses omitted). See also United States v. Smith, 962 F.2d 923, 932 (9th Cir.1992).
We have previously stated that “[w]hen the [federal] interpretation of a provision present in both the United States and Hawai‘i Constitutions does not adequately preserve the rights and interests‘sought, to be protected, we will not hesitate to recognize the appropriate protections as a matter of state constitutional law.” State v. Bowe, 77 Hawai‘i 51, 57, 881 P.2d 538, 544 (1994). However, inasmuch as the federal double jeopardy standard in multiple punishment cases appears to protect the rights of defendants adequately, I would not extend the protection of the Ha-wai‘i Constitution’s Double Jeopardy Clause beyond the federal standard.
It is true that in State v. Lessary, 75 Haw. 446, 865 P.2d 150 (1994), we extended the protection of the Hawai‘i Constitution beyond that of the United States Constitution. Id. at 457, 865 P.2d at 155. We adopted the “same conduct” test and rejected the current federal standard based on the “same elements” test. Id. However, there is a crucial distinction between Lessary and the present esse—Lessary involved successive prosecutions while the present ease involves multiple punishments. Successive prosecutions raise significant dangers that are not present in multiple punishment situations. These concerns justify a more rigorous standard for successive prosecution cases.
Successive prosecutions . . . whether following acquittals or convictions, raise concerns that extend beyond merely the possibility of an enhanced sentence. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged.... [A] tremendous additional burden is placed on that defendant if he must face each of the charges in a separate proceeding.
Id. at 455-56, 865 P.2d at 154-55 (quoting Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled by United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)) (original brackets omitted). Thus, Lessary is distinguishable from the present case and does not require us to extend the protections of the Hawai‘i Constitution beyond the federal standard in multiple punishment cases.
Furthermore, in multiple punishment cases, we have often avoided distinguishing between the protections afforded by the state and federal constitutions. In Tuipuapua, supra, we expressly adopted the federal standard applied in United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), regarding administrative forfeitures. Tuipuapua, 83 Hawai‘i at 151, 925 P.2d at 321. Similarly, in Toyomura, supra, and State v. Higa, 79 Hawai‘i 1, 897 P.2d 928 (1995), we “did not distinguish between the respective constitutional protections in the context of DUI.” Toyomura, 80 Hawai‘i at 11 n. 5, 904 P.2d at 896 n. 5.
Therefore, I would apply the standard described in Lanzi supra, to multiple punishment cases under both the United States and Hawai‘i Constitutions.5
Applying this standard to the statutes at issue in the present case, I would hold as follows. Double jeopardy does not prohibit punishment under both
Similarly, double jeopardy does not prohibit punishment under both
However, a problem is presented by the issue of whether double jeopardy prohibits punishment under both
Under Blockburger, double jeopardy prohibits cumulative punishments unless “each [statutory] provision requires proof of a fact which the other does not.” Lanzi 933 F.2d at 826 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182). It is important to note that, under this test, each statute must include an element that the other statute does not possess. Thus, one statute must possess an additional element, and the other statute must possess an additional element as well.
In the present case, to prove a violation of
1. carried on his person or had within his immediate control, or used or threatened to use, a firearm,
2. knowingly so carried or had within immediate control, or intentionally so used or threatened to use,
3. while engaged in intentionally or knowingly causing the death of another person.6
In order to obtain a mandatory minimum term pursuant to
1. had a firearm in his possession or threatened its use or used a firearm,
2. while engaged in intentionally or knowingly causing the death of another person.7
It is apparent that
The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
Black’s Law Dictionary 1163 (6th ed.1990) (emphases added). Thus, there is no material difference between, on the one hand, “carrying” or “having within one’s immediate control” a firearm and, on the other hand, “possessing” a firearm. Both
II. CONCLUSION
For the reasons discussed above, I would hold that the Double Jeopardy Clauses of the United States and Hawaii Constitutions prohibit imposing both an indeterminate twenty-year term of imprisonment and a fifteen-year mandatory minimum term against Jumila. Therefore, I would vacate the mandatory minimum term and remand for resentencing without the mandatory minimum. However, inasmuch as I see no reason for interfering with Jumila’s convictions, either based on included offense or double jeopardy principles, I would affirm his convictions of murder in the second degree and carrying or use of a firearm.
. For the text of
. For the text of
. For the text of
. However, the ICA vacated the defendant’s mandatory minimum sentence and remanded the case for resentencing. Brantley, 84 Hawai‘i at 124-25, 929 P.2d at 1374-75 (citing Garringer v. State, 80 Hawai‘i 327, 334, 909 P.2d 1142, 1149 (1996) (a mandatory minimum term cannot be imposed if the defendant was an accomplice who did not personally possess, threaten to use, or use a firearm while engaged in the commission of a felony)).
. In State v. Santiago, 8 Haw.App. 535, 541-42, 813 P.2d 335, 338 (1991), and State v. Caprio, 85 Hawai‘i 92, 102-03, 937 P.2d 933, 943-44 (App.1997), the ICA claimed that a different standard applies under the Hawai‘i Constitution. In my view, the ICA, in deciding Santiago and Caprio, improperly relied on dicta in prior cases that did not adequately address the distinction between multiple punishments and successive prosecutions. Therefore, I disagree with the ICA‘s analysis and would overrule Santiago and Caprio.
.
.
. In State v. Ambrosio, 72 Haw. 496, 824 P.2d 107, reconsideration denied, 72 Haw. 616, 829 P.2d 859 (1992), the defendant was convicted, inter alia, of kidnapping and violating