State v. MendoncaState v. Mendonca
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- Hayashi
OPINION OF THE COURT
Defendant-Appellant Dwayne Nelson Mendonca (hereinafter “Mendonca”) appeals from convictions for attempted first degree robbery (
I.
Thе following facts were established at trial by the testimony of Jimmy Yasay (hereinafter “Yasay”). Mendonca and Yasay decided to rob a gambling “banker” (a person who holds gambling money prоceeds). In the early morning hours of January
On May 17, 1984, the Kauai grand jury returned a two-count indictment against Mendonca:
COUNT I: On or about the 21st day of Jаnuary, 1983, in the County of Kauai, State of Hawaii, DWAYNE NELSON MEN-DONCA did intentionally attempt to commit theft of property of Gary Ramos and while armed with a dangerous instrument, to-wit: a rifle, did use force against Gary Ramos, who was present, with the intent to overcome Gary Ramos’ physical resistance or physical power of resistance, an act which constitutes a substantial step in a сourse of conduct intended to culminate in the commission of the crime of Robbery in the First Degree, thereby committing the offense of Attempted Robbery in the First Degree in violation ofSections 705-500 and 708-840(b)(i) [sic] of the Hawaii Revised Statutes.
The GRAND JURY further charges:
COUNT II: On or about the 21st day of January, 1983, in the County of Kauai, State of Hawaii, DWAYNE NELSON MEN DONCA did intentionally attempt to cause the death of Gary Ramos by shooting at him with a rifle, an act which constitutes a substantial stеp in a course of conduct intended to culminate in the commission of the crime of Murder, thereby committing the offense of Attempted Murder in violation ofSections 705-500 and 707-701 of the Hawaii Revised Statutes.
Record at 1-2.
Before trial, Mendoncа moved to dismiss the indictment on the ground that State improperly indicted him under
At trial Yasay testified. Mendonca’s defense witnesses did not contradict Yasay’s testimony nor acсount for Mendonca’s whereabouts in the early morning hours of January 21, 1983. On August 9, 1984, the trial court convicted Mendonca on both counts. Judgment was entered on September 7, 1984, and Mendonca filеd a timely notice of appeal.
We will consider the issues presented in the following order: 1) whether State improperly indicted Mendonca under
II.
A trial court’s ruling on a motion to dismiss an indictment is reviеwed for an abuse of discretion. State v. Corpuz, 67 Haw. 438, 690 P.2d 282 (1984). In State v. Pulawa, 62 Haw. 209, 215, 614 P.2d 373, 377 (1980), we quoted from United States v. Samango, 607 F.2d 877, 882 (9th Cir. 1979): “Dismissal of an indictment is required only in flagrant cases in which the grand jury has been overreached or deceived in some significant way, as where perjured testimony has knowingly been presented [footnote and citation of cases omitted].”
Mendonca claims State abused its prosecutorial discretion by indicting him under
We have long held, “it is generally no defense to an indictment under one statute that the accused might have been charged under another, and the matter is necessarily and traditionally in the discretion of the prosecuting attorney.” State v. Rabago, 67 Haw. 332, _ , 686 P.2d 824, 826 (1984). State v. Kuuku, 61 Haw. 79, 595 P.2d 291 (1979); State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977); Territory v. Awana, 28 Haw. 546 (1925). We now hold the same rule applies to give prosecutors the discretion to decide which statutory subsection to charge the accused with.
Because State had the discretion to charge Mendonca under
III.
We must now determine whether Mendonca was improperly convicted for two crimes arising out of the same facts. The relevant portion of
§ 701-109 Method of prosecution when conduct establishes an element of more than one offense. (1) When the same conduct of a defendant may establish an element of more than onе offense, the defendant may be prosecuted for each offense of which such conduct is an element. He may not, however, be convicted of more than one offense if:
(a)One offense is included in the other, as defined in subsection (4) of this section; or
(e) The offense is defined as a continuing course of conduct and the defendant’s course of conduсt was uninterrupted, unless the law provides that specific periods of conduct constitute separate offenses.
(4) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the оffense charged; or
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicatinglesser degree of culpability suffices to estаblish its commission.
(Emphasis added.)
We held in State v. Pia, 55 Haw. 14, 19, 514 P.2d 580, 584-85 (1973): Where . . . two different criminal acts are at issue, supported by different factual evidence even though separated in time by only a few seconds, one offense by dеfinition cannot be “included” in the other. The defendants can properly be punished for both, under different, or the same statutory provisions.
(Emphasis in original.) In State v. Martin, 62 Haw. 364, 368, 616 P.2d 193, 196 (1980), however, we ruled:
[T]he applicable test in determining whether there is a continuing crime “is whether the evidence discloses one general intent or discloses separate and distinct intents.” It found if “there is but one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offense.”
(Quoting People v. Howes, 99 Cal. App. 2d 808, 818-19, 222 P.2d 969, 976 (1950) ). 2
In the present case, the crimes charged have different statutory elements. Attempted robbery under
Also, different facts go to prove each crime. Though one could argue Mendonca’s shots at Ramos were part of his continuing conduct to rob Ramos under
Yasay testified he and Mendоnca tried to rob Ramos. But after Ramos attempted to escape and Yasay wanted to give up the chase, Mendonca said “No; let’s go, man. We have to get him now.” Transcript, August 8-9, 1984 at 139. After Ramos’ car had crashed (so there was no need to fire the gun to halt Ramos’ flight), Mendonca began firing wildly at the car while Ramos was still presumably inside. One could reasonably infer from the circumstantial evidence and Mendonca’s words and acts that he then intended to kill Ramos. See, State v. Silva, 67 Haw. 581, 698 P.2d 293 (1985); State v. Yabusaki, 58 Haw. 404, 570 P.2d 844 (1977). Mendonca thus committed two separate crimes closely related in time, and no double jeopardy violation occurred. Substantial evidence exists to support both convictions. State v. Lima, 64 Haw. 470, 643 P.2d 536 (1982).
The judgment is affirmed.
Notes
The relevant portion of the statute in effect in 1983 provided:
§ 708-840 Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in the course of committing theft:
(a) He attempts to kill another, or intentionally inflicts or attempts to inflict serious bodily injury upon anothеr; or
(b) He is armed with a dangerous instrument and:
(i) He uses force against the person of the owner or any person present with intent to overcome the owner’s physical resistance or physical power of resistance ....
The United States Supreme Court has held:
[T]hat where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are twо offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
Blockburger v. United States, 284 U.S. 299, 304 (1932) (citations omitted). Brown v. Ohio, 434 U.S. 161 (1977). See, State v. DeCenso, 5 Haw. App. 127, 681 P.2d 573 (1984). The federal standard is less rigorous than that imposed by Hawaii law. Pia, 55 Haw. at 18, 514 P.2d at 584.