FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-APR-2022
08:39 AM
Dkt. 131 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
NO. CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
BRANDON FETU LAFOGA, Defendant-Appellant,
and
RANIER INES, ALSO KNOWN AS SCHIZO, Defendant-Appellee
AND
NO. CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RANIER INES, ALSO KNOWN AS SCHIZO, Defendant-Appellant,
and
BRANDON FETU LAFOGA, Defendant-Appellee
CAAP NOS. XX-XXXXXXX and XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC161001176)
APRIL 27, 2022
GINOZA, CHIEF JUDGE, LEONARD AND NAKASONE, JJ.
OPINION OF THE COURT BY NAKASONE, J.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
This consolidated appeal1 arises out of an underlying
September 16, 2015 incident where the complainant Kele Stout
(Stout) was pistol-whipped, forced to drive at gunpoint, had his
phone and wallet taken, then repeatedly beaten, including with a
baseball bat, and shot in the face, torso, and buttock. Stout
managed to escape and drive himself to Wai#anae Comprehensive
Health Center, where he received treatment and survived.
Plaintiff-Appellee State of Hawai#i (State) charged
Defendant-Appellant Brandon Fetu Lafoga (Lafoga) via a July 20,
2016 Indictment with Attempted Murder in the Second Degree
(Attempted Murder) in Count 2; Criminal Conspiracy to Commit
Murder in the Second Degree (Conspiracy to Commit Murder) in
Count 3; Carrying or Use of Firearm in the Commission of a
Separate Felony (Use of Firearm in Separate Felony) in Count 4;
Kidnapping in Count 6; and Ownership or Possession Prohibited of
any Firearm or Ammunition by a Person Convicted of Certain Crimes
(Felon in Possession) in Count 8. The State charged Defendant-
Appellant Ranier Ines (Ines)2 with Accomplice to Attempted Murder
in Count 1; Conspiracy to Commit Murder in Count 3; Kidnapping in
Count 5; and Robbery in the First Degree in Count 7. Following a
jury trial, Lafoga was convicted of Attempted Murder in Count 2,
Use of Firearm in Separate Felony in Count 4, and Felon in
Possession in Count 8. Ines was convicted of Accomplice to
Attempted Murder in Count 1. Following an extended term
sentencing jury trial, Lafoga was sentenced to consecutive and
extended terms in all counts, including a term of life
imprisonment without the possibility of parole (life without
parole). Ines was also sentenced to an extended term of life
without parole.
Lafoga's Appeal
In CAAP No. XX-XXXXXXX, Lafoga appeals from the
February 20, 2020 Judgment of Conviction and Sentence, Notice of
1
The defendants were indicted and tried together as co-defendants
in Criminal No. 1PC161001176. We consolidated their appeals under CAAP-20-
0000175.
2
Ines's first name is incorrectly spelled in the Notice of Appeal,
as "Rainier." The correct spelling is "Ranier."
2
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Entry, filed by the Circuit Court of the First Circuit (Circuit
Court).3 On appeal, Lafoga contends that: (1) the Circuit Court
erred when it ordered that the jury would be "partially
anonymous," where jurors were referred to by number and not by
name; (2) Lafoga's trial counsel was ineffective for failing to
object to the Circuit Court's procedure referring to jurors by
number and not by name; (3) the Circuit Court erred in refusing
to instruct the jury on included offenses for Attempted Murder;
(4) the Circuit Court erred in denying Lafoga's Motion to Dismiss
for Violation of Hawai#i Rules of Penal Procedure (HRPP) Rule 48
(Rule 48 Motion); (5) the Circuit Court's extended sentencing
jury instruction for Attempted Murder that "characterized a non-
extended sentence" as a "possible life term of imprisonment" and
an extended sentence as a "definite life term of imprisonment"
was erroneous and prejudicial; and (6) the Circuit Court erred in
determining that an extended sentence under Hawaii Revised
Statutes (HRS) § 706-661(1) was applicable to the offense of
Attempted Murder.
Ines's Appeal
In CAAP No. XX-XXXXXXX, Ines appeals from the September
2, 2020 Amended Judgment of Conviction and Sentence, Notice of
Entry, filed by the Circuit Court. On appeal, Ines contends
that: (1) without prior notice, the Circuit Court, sua sponte,
empaneled an anonymous jury which violated Ines's right to a fair
trial; (2) the Circuit Court erred in refusing Ines's included
offense instructions for Accomplice to Attempted Murder and
Conspiracy to Commit Murder; (3) the language in the Circuit
Court's extended sentencing jury instruction regarding the
sentence being extended from "a possible life term of
imprisonment" to a "definite life term of imprisonment" was
prejudicially "deceptive and misleading;" and (4) the Circuit
Court imposed an illegal sentence because HRS § 706-661 does not
provide for an extended term of imprisonment for Attempted
Murder.
3
The Honorable Paul B.K. Wong presided.
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We hold that the Circuit Court's modified jury
selection procedure of referring to the jurors by number and not
by name, and of withholding the jurors' names and information
from the defendants but not from their counsels, did not
constitute plain error under the circumstances of this case. We
also conclude that the extended sentencing statute, HRS § 706-
661(1), does apply to Attempted Murder in the Second Degree. As
to all other challenges raised by both defendants, we conclude
there was no error. For the reasons explained infra, we affirm.
I. BACKGROUND
The following evidence was adduced at the jury trial
held from November 18, 2019 to December 3, 2019.
Complainant Kele Stout
Stout testified that on September 16, 2015, he and Ines
were co-workers at a custom countertop company, working on an
installation job in downtown Honolulu. Initially, Ines "got mad"
at Stout because Stout "wouldn't teach him how to seam." Later,
when preparing to leave the job site in the work van, Ines
accused Stout of going through his bag. As Stout drove them into
the street, Ines grabbed Stout's right wrist from the steering
wheel, pulled out a gun from his backpack, and pistol-whipped
Stout in his eyebrow. As blood started gushing, Ines ordered
Stout to drive out towards Wai#anae. Throughout the drive toward
Wai#anae via Nimitz freeway, Ines said multiple times that if
Stout tried to do anything, "I'll shoot you." Ines held on to
Stout's right wrist during the entire drive, while aiming the gun
at Stout's face. As Ines "made a bunch of phone calls," he
controlled Stout by holding his wrist, with the gun in his lap.
On one of the phone calls, Stout heard Ines say that "he has the
rent money." Ines searched Stout's wallet which was on the
dashboard, took Stout's debit card, and asked Stout for his "PIN
number" to which Stout complied. Ines grabbed Stout's phone from
the dashboard, and smashed it on the dashboard, breaking it.
Stout later testified that he heard Ines tell someone "we're
coming to your house, and be ready because this person needs a
beating[.]" Ines told Stout, "I'm not going to kill you, we're
just gonna beat you and let you go[.]"
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As they reached the beginning of Ma#ili, Ines ordered
directions to Stout until they ended up off Farrington Highway,
at a house in the Sea Country area. A Polynesian male, later
identified as Lafoga, brought Stout from the van into the garage,
closed the garage door, asked Stout what he did to make Ines so
mad, and then tied Stout's wrists behind his back. Stout was
seated in the middle of the garage when Ines and Lafoga began
beating Stout –- Ines with his fists, and Lafoga with a baseball
bat. Stout was struck in the back of his head, and blood gushed
everywhere. Stout believed someone grabbed a towel and put it
over his head, and they continued beating him. It appeared to
Stout that they just went until they ran out of energy, because
the hits became softer, and it "sounded like they were winded,
breathing harder."
Ines and Lafoga then went through the door in the
garage into the house, where Stout could barely hear their
conversation. Stout testified that he heard Ines, Lafoga, and a
third male voice discussing what to do next, and he heard Ines
order somebody to take care of the body. Stout also testified
that he heard Ines say, "I'm gonna go leave and pick up my
girlfriend, take care of him[,]" and Stout could only assume what
that meant. Stout acknowledged that it was possible that he told
the police, "I still didn't think I was going to get shot or
anything." When Ines came through the doorway to the garage and
saw Stout wiggling, he yelled out that Stout was trying to
escape, and Ines and Lafoga both ran in and beat Stout again.
Stout was thrown into the back of the work van, and Ines slammed
the van door shut. Lafoga got into the driver's seat and then
drove off with Stout, but without Ines.
At some point, Lafoga stopped the van somewhere, got
out and started talking to a person he met there, bragging about
what he and Ines had done to Stout, and then telling the person
to go look through the back window. Stout saw a figure come to
the back window of the van, but he didn't get a good look at
anyone.
Later, Lafoga started driving again, and told Stout
that he "[will] be the first person that he is going to kill . .
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. ." Stout told Lafoga to let him go, but Lafoga replied he
couldn't do that. Lafoga later parked the work van in a quiet
spot where no one was around, then climbed into the back of the
van, and shot Stout in the face. Stout felt like his face was
caving in; the blood felt like lava, and it was very painful. At
some point, Stout realized he "wasn't dead yet," and he was
inhaling and swallowing blood. Stout managed to break out of the
restraints and rolled onto his stomach. Lafoga had started
driving again, but when he realized Stout was still alive, he
turned back and shot Stout again, this time in the torso and
buttock. Stout believed Lafoga was going to keep shooting him
the more he made noise, so he tried to muffle the sounds of his
breathing and coughing. Stout heard Lafoga making phone calls,
trying to find somebody to give him a ride; Stout also heard
Lafoga explain to someone that he was trying to burn the van with
Stout's body still in it. When Lafoga stopped the van and
exited, Stout could hear the engine still running; Stout then
jumped into the driver's seat, locked the doors, and drove off
toward the Wai#anae Coast Comprehensive Health Center (Wai#anae
Comp). Stout told the Wai#anae Comp security guard he had been
shot, and that someone tried to kill him.
Wai#anae Comp and Queen's Medical Center witnesses
Christopher Miranda (Miranda), a registered nurse at
Wai#anae Comp, testified that on September 16, 2015, at around
7:22 p.m., he received a radio call that a person had parked at
the former emergency room (ER) and told security that he had been
shot. Miranda and another nurse proceeded to the old ER, where
he saw a white van with Stout in the driver's seat with his head
and arms hanging outside the window. There was a thick blood
clot dripping from Stout's head, and Stout had a wound to the
back of his head and on the front part of his face, where most of
the blood was coming from. When Miranda asked Stout what
happened, Stout replied he had been shot, and someone tried to
kill him. Stout was taken to the new ER. Because there were no
blood products at Wai#anae Comp, and Stout had so much blood on
him, Miranda was concerned that Stout needed to be transferred to
another facility as quickly as possible. At the time, Miranda
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believed Stout had been shot six times. Miranda asked another
nurse to cut the "shoestring" off Stout's wrists, which had
caused "ligature marks." After intubation and sedation, Stout
was transferred to the Queen's Medical Center ER at Punchbowl
(Queen's), trauma unit.
Stout was admitted to Queen's the same day, and on the
following day, September 17, 2015, was treated by Queen's trauma
surgeon, Dr. Susan Steinemann (Dr. Steinemann). Dr. Steinemann
treated Stout for injuries related to "at least four" gunshot
wounds to his scalp, jaw, torso, pelvis/rectum area, right
femur/hip bone, and left thigh. The injuries from at least two
of these gunshot wounds would have been fatal if Stout had not
been treated -- the wound that damaged Stout's pelvis/rectum
area, and the wound to his jaw with the bullet still lodged in
"the left side of his head."
Randi DeCosta
Randi DeCosta (DeCosta) testified that she was Lafoga's
girlfriend in 2015. DeCosta identified State's Exhibit 303 as a
photograph depicting Lafoga. DeCosta testified that she knew
Anthony Riley, an African-American male, whose nickname was
"Tonez" (Tonez). DeCosta testified that on September 16, 2015
around 3:00 p.m., DeCosta received a phone call where Lafoga told
her that he "had to handle stuff" and that "he had to go." The
next phone call from Lafoga was a "couple of hours" later, when
the sun "was setting." In this second phone call, Lafoga told
her that he beat up a man at his mom's garage with a baseball
bat, and there was "big blood" all over the garage. When Lafoga
was leaving the house in the van, a guy was in the back part of
the van. Tonez then showed up at the house, and Lafoga and Tonez
took the man "up the valley." Id. at 21. Lafoga said that he
shot the man, the man was begging and choking on his blood,
Lafoga told the man to shut up, and Lafoga turned around and shot
the man. Lafoga told DeCosta not to worry because he put a towel
over the man's head. Lafoga said the man was dead, and Lafoga
was going to burn the van, and then Lafoga hung up. Lafoga
called DeCosta back a very short time later, sounding "worried
and scared," and said the van was gone. It sounded like Lafoga
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was talking to Tonez, and that Lafoga told Tonez that Tonez was
supposed to stay by the van, and to watch it. Lafoga said that
all Tonez had to do was watch the van. Lafoga told DeCosta he
thought the van got towed. Lafoga said that he had gone into the
store to get stuff to burn the van, and that the gun was in the
van. Lafoga hung up. Later that night Lafoga called again to
tell her he told his mom what happened and that his mom was going
to fly him out as soon as possible. DeCosta recalled that Lafoga
subsequently left Oahu and flew to Alaska, which she thought was
the "same day." Around October 2015, DeCosta testified that she
remembered seeing a Crime Stoppers news release with a composite
sketch of a suspect and the shooter. DeCosta wasn't sure if it
was Lafoga, "because there was no tattoos on the drawing." The
State published Exhibit 383 and DeCosta was asked if the exhibit
was the composite sketch she saw at the time, to which she
answered yes. The State asked DeCosta if she had spoken to
Lafoga about the composite sketch when he was in Alaska, and she
confirmed that she did, and that Lafoga said the composite
sketch, "looked like him. He knew that was him." When DeCosta
spoke to Lafoga about the shooting via phone, she described
Lafoga's demeanor as "like happy, like proud," and Lafoga was
"confident that he got away[.]" DeCosta testified that Lafoga
said the man he shot was begging, coughing and choking on his
blood, and Lafoga kept telling the man to "shut the fuck up."
Lafoga told DeCosta that he told the man that he had never killed
anybody before, and that the man would be the first person that
he killed. Lafoga told DeCosta that Tonez also shot the man.
DeCosta identified a T-shirt depicted in Exhibit 277 (a
photograph of the contents of the white van), as belonging to
Lafoga.
Ricol Arakaki
Ricol Arakaki (Arakaki) testified that her grandfather
and Lafoga's grandmother were brother and sister, however Arakaki
denied they were blood "related," but there was a "family
relationship" as Lafoga was adopted. Lafoga told Arakaki that he
had pulled a man out of a vehicle, beat him up, and shot him in
the vehicle. Arakaki testified that Lafoga never mentioned
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anybody else firing the gun at Stout, or that anyone else was in
the vehicle with them.
Verdict and Sentencing
The jury returned a verdict on December 4, 2019,
finding Lafoga guilty as charged of Attempted Murder (Count 2),
Use of Firearm in Separate Felony (Count 4), Kidnapping (Count
6), and Felon in Possession (Count 8); and Ines was found guilty
as charged of Accomplice to Attempted Murder (Count 1)4
Kidnapping (Count 5); and Robbery (Count 7).
Following a further trial on extended term sentencing
on December 6, 2019, the jury determined that, in Counts 2, 4, 6,
and 8, Lafoga was a persistent offender and a multiple offender,
and that extended terms of imprisonment were necessary for the
protection of the public; and in Counts 1, 5, and 7, Ines was a
persistent offender and a multiple offender, and that extended
terms of imprisonment were necessary for the protection of the
public.
On February 20, 2020, the Circuit Court sentenced
Lafoga in Count 2 (Attempted Murder) to an extended term of life
without parole, with a 20-year mandatory minimum term; in Count 4
(Use of Firearm in Separate Felony) to an extended term of life
imprisonment with the possibility of parole (life with parole);
and in Count 8 (Felon in Possession) to an extended term of 20
years imprisonment.5 The Circuit Court ordered Lafoga's
sentences in Counts 2, 4, and 8, to run consecutively.
On July 30, 2020, the Circuit Court sentenced Ines in
Count 1 (Accomplice to Attempted Murder) to an extended term of
life without parole.6
Both defendants timely appealed.
4
Count 3 (Conspiracy to Commit Murder) against Ines was given to
the jury as an included offense of Accomplice to Attempted Murder.
5
The Court applied merger to Kidnapping in Count 6.
6
The Court applied merger to Kidnapping in Count 5 and Robbery in
the First Degree in Count 7.
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II. STANDARDS OF REVIEW
A. HRPP Rule 48 Dismissal
The appellate court reviews a trial court's denial of a
HRPP Rule 48 motion to dismiss under both the "clearly erroneous"
and "right/wrong" tests:
A trial court's findings of fact (FOFs) in deciding an
HRPP 48(b) motion to dismiss are subject to the clearly
erroneous standard of review. An FOF is clearly erroneous
when, despite evidence to support the finding, the appellate
court is left with the definite and firm conviction that a
mistake has been committed. However, whether those facts
fall within HRPP 48(b)'s exclusionary provisions is a
question of law, the determination of which is freely
reviewable pursuant to the "right/wrong" test.
State v. Choy Foo, 142 Hawai#i 65, 72, 414 P.3d 117, 124 (2018)
(citations omitted).
B. Plain Error
HRPP Rule 52(b) provides: "Plain errors or defects
affecting substantial rights may be noticed although they were
not brought to the attention of the court." An appellate court
"will consider issues that have not been preserved below" when
"necessary to serve the ends of justice[.]" State v. Barnes, 145
Hawai#i 213, 218, 450 P.3d 743, 748 (2019) (citing HRPP Rule
52(b)). "It is firmly established that the relevant inquiry when
evaluating whether a trial court's plain error may be noticed is
whether the error affected substantial rights. Thus, a reviewing
court has discretion to correct plain error when the error is not
harmless beyond a reasonable doubt." Id. (citations and internal
quotation marks omitted).
C. Jury Instructions
"When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading." Stanley
v. State, 148 Hawai#i 489, 500, 479 P.3d 107, 118 (2021)
(citations omitted). Erroneous jury instructions are subject to
plain error review "because it is the duty of the trial court to
properly instruct the jury." State v. DeLeon, 131 Hawai#i 463,
479, 319 P.3d 382, 398 (2014) (quoting State v. Nichols, 111
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Hawai#i 327, 337, 141 P.3d 974, 984 (2006)). "As a result, once
instructional error is demonstrated, we will vacate, without
regard to whether timely objection was made, if there is a
reasonable possibility that the error contributed to the
defendant's conviction . . . ." Id.
D. Statutory Interpretation
The interpretation of a statute is a question of law
reviewable de novo. State v. Thompson, 150 Hawai#i 262, 266, 500
P.3d 447, 451 (2021).
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
JD v. PD, 149 Hawai#i 92, 96, 482 P.3d 555, 559 (App. 2021)
(citation omitted).
E. Included Offense
"Whether an offense is an included offense of another
is a question of law" reviewed de novo under the right/wrong
standard of review. State v. Manuel, 148 Hawai#i 434, 439, 477
P.3d 874, 879 (2020) (citation omitted).
III. DISCUSSION7
A. The Circuit Court did not err in denying Lafoga's
HRPP Rule 48 Motion.
Lafoga contends that the Circuit Court erred in denying
his HRPP Rule 488 Motion. Lafoga filed his Rule 48 Motion on
7
We have reordered, consolidated, and restated both defendants'
points of error, for clarity.
8
HRPP Rule 48(b), Dismissal, provides:
(b) By court. Except in the case of traffic offenses that are
not punishable by imprisonment, the court shall, on motion of the
defendant, dismiss the charge, with or without prejudice in its
discretion, if trial is not commenced within 6 months:
(continued...)
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November 12, 2019. On January 15, 2020, the Circuit Court filed
its Findings of Fact, Conclusions of Law, and Order Denying
Defendant Ines' Motion to Dismiss Indictment for Violation of
Haw. R. Penal P. Rule 48 and Defendant Lafgoa's [sic] Motion to
Dismiss for Violation of HRPP Rule 48 (Order Denying Rule 48
Motion). Lafoga claims the Circuit Court erred in its Order
Denying Rule 48 Motion by: (1) concluding in Finding of Fact
(FOF)/Conclusion of Law (COL) 39 that the Rule 48 commencement
period began anew under Rule 48(b)(3), when Lafoga withdrew his
guilty pleas on May 20, 2019, and the Circuit Court set a new
trial date; and (2) excluding the time periods of six trial
continuances that co-defendant Ines requested but Lafoga objected
to, in FOF/COLs 18, 24, 28 and 40. Lafoga's first contention is
without merit, and we need not address his second contention
regarding the continuances.9
In FOF/COL 39, the Circuit Court found:
39. This Court finds that when Defendant Lafoga withdrew
his guilty pleas on May 20, 2019, his case was reset for
trial and that reset the starting date for the calculation
of his HRPP Rule 48 clock to May 20, 2019. The time period
8
(...continued)
(1) from the date of arrest if bail is set or from the
filing of the charge, whichever is sooner, on any offense
based on the same conduct or arising from the same criminal
episode for which the arrest or charge was made; or
(2) from the date of re-arrest or re-filing of the charge,
in cases where an initial charge was dismissed upon motion
of the defendant; or
(3) from the date of mistrial, order granting a new trial or
remand, in cases where such events require a new trial . . .
.
9
The six continuances challenged by Lafoga are as follows:
June 13, 2017 to September 18, 2017;
September 18, 2017 to November 13, 2017;
November 13, 2017 to January 1, 2018;
January 1, 2018 to May 21, 2018;
August 27, 2018 to January 21, 2019; and
January 21, 2019 to May 6, 2019.
All of these continuances were granted before Lafoga pled guilty on April 12,
2019, and subsequently withdrew his guilty pleas on May 20, 2019. Because we
conclude infra that the Circuit Court correctly determined that Rule 48 was
reset when Lafoga was given a new trial date on May 20, 2019, it is
unnecessary to address these prior continuances.
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between May 20, 2019 and the time that Defendant Lafoga
filed Lafoga's Motion on November 12, 2019, 183 days
elapsed. However, the time period between July 1, 2019 and
September 30, 2019, a total of 92 days, is excludable under
HRPP Rule 48(c)(3). For the purposes of HRPP Rule 48, 88
days passed for Defendant Lafoga.
The Circuit Court concluded that when Lafoga withdrew his guilty
pleas on May 20, 2019, and was given a new trial date, this event
reset the starting date for the calculation of his HRPP Rule 48
clock to May 20, 2019, pursuant to HRPP Rule 48(b)(3). The
Circuit Court also concluded that the time period between July 1,
2019 and September 30, 2019, a total of 92 days, was excludable
under HRPP Rule 48(c)(3) (2019), which Lafoga does not contest.
The Circuit Court determined that only eighty-eight days had
passed, for purposes of HRPP Rule 48.
HRPP Rule 48(b)(3) provides for dismissal by the court
if trial is not commenced "from the date of . . . [an] order
granting a new trial." "It is well established that the
withdrawal of a guilty plea, like the grant of a new trial,
begins a new 120 day period in which the [prosecution] must bring
a defendant to trial." Commonwealth v. Jensch, 469 A.2d 632, 636
(Pa. Super. Ct. 1983) (citations omitted); see Kennedy v. State,
763 S.W.2d 648, 649 (Ark. 1989) (holding that an order allowing
the withdrawal of a guilty plea is analogous to an order granting
a new trial). When the Circuit Court granted Lafoga's motion to
withdraw guilty plea on May 20, 2019, the Circuit Court also had
to set a new trial date for Lafoga at that time; and thus, the
Circuit Court correctly concluded that Lafoga's HRPP Rule 48
clock started anew on May 20, 2019. See Choy Foo, 142 Hawai#i at
72, 414 P.3d at 124; Jensch, 469 A.2d at 636; Kennedy, 763 S.W.2d
at 649. Accordingly, Lafoga's challenge to the denial of his
HRPP Rule 48 Motion is without merit.
B. The Circuit Court's procedure of referring to
the jurors by number and not by name, and of
withholding the jurors' names and information
from the defendants but not their counsels,
did not constitute plain error under the
circumstances of this case.
Both Lafoga and Ines challenge the Circuit Court's
modified jury selection procedure in this case, where the Circuit
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Court provided counsels with the prospective jurors' names and
information, but defense counsels were not to provide that
information to the defendants. The Circuit Court also required
that during jury selection, the jurors be referred to by their
juror numbers only, and not by their names. The relevant record
of the November 1, 2019 motions in limine hearing where the
Circuit Court informed the parties of the procedure is as
follows:
THE COURT: I do have one thing that I want to bring
up. 250 juror questionnaires got sent out. A great number
of them have already been returned, and a good number of
them have indicated that they are willing to serve for a
good four to five weeks of trial.
. . . .
What the Court will do is, because those jurors
already have numbers to them, 1 through 250, they will
retain those numbers as we go through jury selection and
trial.
Once we get the full packet of jurors that will be
summoned, Counsel, of course will get that packet,
identifying information will get redacted: Phone numbers
and street addresses, which will get their zip codes and
their towns, but I'm also going to, and Court will redact
their names as well.
So they will be referred to as juror No. 1, to and
including juror No. 125, without saying Mr. Smith or Ms.
Jones or Ms. Smith or Ms. Jones. Any objection to that, Mr.
[Prosecutor]?
[INES'S COUNSEL]: Yeah, sorry, could you -- we're
going to know the names from the list 'cause we're going to
get them.
THE COURT: No.
[INES'S COUNSEL]: We're not going to know the names
at all?
THE COURT: No, you just have the numbers.
[PROSECUTOR]: I would –-
THE COURT: When you do voir dire, it's juror No. 25
in chair No. 1.
[INES'S COUNSEL]: So even the lawyers won't get the
name?
[PROSECUTOR]: I do object to that because I think
it's incredibly –- in my respectful opinion, I think it's
dehumanizing.
THE COURT: Well –-
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[PROSECUTOR]: And I think it's very important during
voir dire to be able to get a juror's most candid and open
answers.
I think calling them by number, I don't think that's
conducive to creating an open environment.
[INES'S COUNSEL]: I do agree with Mr. [Prosecutor]'s
concern. But if –- my concern is, we need to know who they
are for our research purposes and preparing voir dire.
In other words, is there a conflict of interest or
potential conflict of interest? Do I know the juror, that's
what I'm mainly concerned about.
But if the Court prefers that we not say the juror's
name on the record, and the Court instructs the jury that
the Court has instructed the lawyers to approach it that
way, then I don't have an objection.
THE COURT: How about that compromise, Mr.
[Prosecutor]?
[PROSECUTOR]: I guess I just want to understand why.
THE COURT: I'm trying to head off a juror in this
panel saying, I'm afraid to serve.
[INES'S COUNSEL]: I understand that concern.
So on the record, and this is what I suggest. The
defense counsels –- the attorneys will look at the list and
review and prepare for jury selection, but we both will not
provide the list to our clients, but they will be present
with us when we do jury selection.
THE COURT: Of course.
[INES'S COUNSEL]: So I think that takes care of all
the concerns.
[PROSECUTOR]: I –- I really appreciate –- I
understand why the Court is taking the step. I'm just not
sure. I'm going to defer to the Court. I'm going to
retract my objection.
[INES'S COUNSEL]: It's a weird thing to say, Hey,
juror No. 1, juror No. 5, but if the Court explains to the
jury the reason why it's doing it, and that it's not meant
to be offensive.
THE COURT: I can explain that they're given numbers.
[INES'S COUNSEL]: Yes, the fact that they're just
given numbers.
THE COURT: But I don't want to give them the Court's
rationale as to why we're not referring to their names in
court.
[INES'S COUNSEL]: That's understood.
THE COURT: I have, in the past, had to inform jurors
to quell anxiety, that there's been no incidents whatsoever.
I do believe that's the situation here, but I don't want it
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to be raised in the entire panel's consciousness at all
because we want them to serve.
[INES'S COUNSEL]: Yes. So as long as the Court
explains to the jury that the Court has instructed the
lawyers to refer to them as juror No. 1 or juror No. 2, et
cetera, instead of using their names, I think both –- all of
the parties' counsel will be protected in that way, in that
the jury won't think that we're trying to, you know, take
away their identity, I guess.
THE COURT: Don't worry, because the Court is the
first one that has to voir die [sic] saying, Juror No. 1 and
juror No. 2.
[INES'S COUNSEL]: So we'll all be doing it.
THE COURT: [Lafoga's Counsel], any other concerns you
want to add to the record on this particular issue?
[LAFOGA'S COUNSEL]: So, Judge, I'm not sure I
understand the situation. So will we know the names of each
juror?
THE COURT: [Ines's Counsel] wants that to happen, and
that's fine, as long as their names are not used on the
record.
[LAFOGA'S COUNSEL]: Okay, 'cause that was my main
concern was I think we should be entitled to know their
names so that we can do proper research and look into
people's background.
I know I've had cases with the prosecution before
where they actually shoot over arrest and conviction
information about jurors that –- I'm not saying you guys are
going to do it, but I've had that happen in the past, and
actually it comes in quite handy as far as jury selection
and, you know, people's work with the Court.
So I would appreciate the chance to look a little more
into the background of each juror, rather than just rely
upon their sheet.
THE COURT: I think that's –- I think that's a fair
request.
[LAFOGA'S COUNSEL]: Thank you, Judge.
THE COURT: And I think the proposal made by [Ines's
Counsel] is a reasonable and workable one.
[LAFOGA'S COUNSEL]: Thank you.
THE COURT: So the list will come out to you, street
addresses and telephone numbers still redacted.
[LAFOGA'S COUNSEL]: Yes.
THE COURT: But they will have their names on them.
But when we address those individual jurors in the
box, just their number will be used, not their name.
[LAFOGA'S COUNSEL]: Yes. Thank you, Judge.
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THE COURT: So their name will not appear in the
record. . . .
(Emphases added).
The record reflects that initially, when the Circuit
Court informed the parties during jury selection that they would
not receive the names of the jurors, all parties raised
objections and/or concerns. The Circuit Court explained that it
wanted to preemptively avoid jurors being "afraid to serve." In
the discussion that followed, Ines's counsel proposed a
compromise where the Circuit Court would provide the names of the
prospective jurors on the list to counsels, but that defense
counsels would not provide the list to the defendants. The
Circuit Court found this acceptable; the State deferred to the
Court, and retracted its objection. Lafoga and Ines did not
voice any further concerns or objections to the Circuit Court's
modified procedure, which the Court summarized as: "So the list
will come out to you, street addresses and telephone numbers
still redacted. . . . But they will have their names on them.
But when we address those individual jurors in the box, just
their numbers will be used, not their name. . . . So their name
will not appear in the record."
During the pre-trial publicity screening of the
prospective jurors on November 18, 2019, the Circuit Court
explained to the prospective jurors that their juror numbers
would be used to identify them:
THE COURT: Ladies and gentlemen, when [the clerk] did
the initial roll call for this jury panel, each of you were
given a card with your name on it along with your number.
Please remember that number, that is your number, and for
the rest of the proceedings in this case you will be
addressed by that number. Your actual names are known to
the Court and to the attorneys, and other than a sealed list
that will be kept for court records, no one else will know
your actual names, so the public can't get your names and
they cannot get your contact information, so only court and
counsel will have your names. For the rest of the
proceedings you'll be addressed by your number.
(Emphases added). The Circuit Court told the jurors that only
the "court and counsel will have your names." The Court did not
state whether or not the defendants themselves were privy to the
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jurors' names, and specifically only mentioned "attorneys" or
"counsel."
When jury selection began on November 20, 2019, the
Circuit Court again informed the prospective jurors of the use of
numbers rather than their names, stating:
THE COURT: And, again, to make sure that we have a
fair and impartial jury, the Court and then later on
tomorrow the attorneys will have the opportunity to speak
with you. It's a question and answer session. We'll be
asking you questions about your personal background, your
employment, your family and your experiences. Do not think
that we're trying to pry into your personal affairs. We're
just trying to get to know you better and to determine
whether or not you're actually fit to serve as trial jurors
in this case.
If it seems like we have some information about you,
it's because we have copies of your juror summons cards.
Your personal identifying information has been redacted or
blacked out, so we don't have your telephone numbers, we
don't have your street addresses. And as I told you on
Monday, only the attorneys and the Court have your actual
names. For the rest of the public that do not have access
to the sealed court records, all they will know about the
jurors that serve in this case are the numbers that we call
here in court. So you'll forever now, in this case, be
known by your number. Don't be surprised though that we
still have some information about what kind of work history
you have and whether or not you served as a juror before,
because we do have that information, so don't be surprised.
(Emphases added). The Court reiterated that "only the attorneys
and the Court have your actual names." The Court again did not
state whether or not the defendants themselves were privy to the
jurors' names, and specifically only mentioned "attorneys."
Before opening statements on November 22, 2019, the
Circuit Court pointed out the presence of the media and reminded
the empaneled jury that their names were not "public," as
follows:
THE COURT: Ladies and gentlemen, also, as we continue
through this trial, you are going to be referred to by your
juror number as well as your chair number. Your names are
not made part of the public record of this case. You
already see that there is a camera here in the courtroom.
While they are permitted to cover the proceedings, the press
is not allowed to have any likeness of yours, so they can't
take any pictures of you, they cannot take any video of you,
they cannot depict the jury in this case. So in addition to
your names, your likeness will not be made part of the
public record or available to the public in any way in this
case.
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(Emphases added). The Circuit Court's emphasis at this juncture
focused on the jurors' names not being a part of the public
record in this case. The Court did not reiterate that only the
Court and the attorneys had the jurors' names.
On appeal, both defendants raise distinct "anonymous
jury" challenges to the modified jury selection procedure the
Circuit Court employed in this case. Lafoga challenges the
propriety of the Circuit Court referring to the jurors by number
and not by name. Ines frames his challenge as the jury being
fully "anonymous" to the defendants but not to their counsels.
We address each challenge separately.
1. Lafoga's challenge to the Circuit Court's
"confidential" jury procedure of referring
to the jurors by number and not by name,
did not constitute plain error under the
circumstances of this case.
Lafoga contends that the Circuit Court erred by
ordering that the jury would be "partially anonymous, with jurors
being referred to by number rather than by name," without first
determining that the jury needed "the protection of anonymity,"
and "without taking sufficient precautions to minimize any
prejudicial effects on Lafoga's presumption of innocence."
Because Lafoga's trial counsel did not object, Lafoga urges this
court to notice plain error because the "partially anonymous
jury" procedure affected his substantial, constitutional right to
a presumption of innocence.
We first clarify the nature of Lafoga's challenge to
the jury procedure. A "confidential" jury is "intended to limit
the jurors' exposure to the media," and the jurors' names are
"withheld from the public but not the parties." United States v.
Harris, 763 F.3d 881, 886 (7th Cir. 2014) (citation omitted). A
confidential jury challenge "focuses on whether access to the
courts has been properly denied." Id. Lafoga, however, does not
raise any access-to-the-courts challenge on appeal.
"[A]nonymous juries are for the jurors' protection,"
and the parties and the public do not know their names. Id. In
an "anonymous jury" situation, the jurors' "identifying
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information – such as names, occupations, addresses, exact places
of employment, and other such facts – has been withheld from the
parties in order to protect potential jurors and their families."
Id. at 884 (citing United States v. Morales, 655 F.3d 608, 620
(7th Cir. 2011)) (emphasis added). This means that none of the
parties, including their attorneys, have the jurors' names and
information. See, e.g., United States v. Ross, 33 F.3d 1507,
1521 n.27 (11th Cir. 1994) ("anonymous" jury where the jurors'
names, addresses, employment, and other personal information were
not disclosed to the parties, including "the government and the
defense attorneys.") (emphases added). Here, however, the
jurors' names and information were not withheld fully from the
parties, because the State and defense counsels had all the
information.
Lafoga relies on federal and state "anonymous jury"
cases of United States v. Ross, id., and State v. Samonte, 83
Hawai#i 507, 928 P.2d 1 (1996), to support his argument that
referring to the jurors by number and not by name was
prejudicial. In Ross, the Eleventh Circuit addressed the
empaneling of an anonymous jury and adopted the following
principles from the Second Circuit: "In general, the court
should not order the empaneling of an anonymous jury without (a)
concluding that there is strong reason to believe the jury needs
protection, and (b) taking reasonable precautions to minimize any
prejudicial effects on the defendant and to ensure that his
fundamental rights are protected." 33 F.3d at 1520 (citing
United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991)).
The Ross court concluded that the trial court did not abuse its
discretion in ordering the anonymous jury because, as to the
first prong, there was "strong reason to believe the jury
need[ed] protection" where appellant was the leader of a "large-
scale criminal organization" and was actively involved in
organized crime; the organization had the means to harm jurors;
appellant had previously attempted to interfere with the judicial
process; and appellant also faced the possibility of a life
sentence and extensive monetary penalties. Id. at 1520-21. As
to the second prong, the Ross court concluded the trial court
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"took reasonable steps to minimize any prejudicial effects" on
the appellant to ensure that his fundamental rights were
protected. Id. at 1521.
In Samonte, the Hawai#i Supreme Court addressed
circumstances where some of the jurors' personal information
(i.e., the jurors' first names, spouse's names, street addresses
and identity of the jurors' employers) were withheld from the
parties after a jury tampering incident during Samonte's second
trial;10 however, the parties still had the last names and street
name of the jurors' residences, their occupations, their marital
status and number of children, number of years of education
completed, and town and zip code of the residences, date of birth
and number of years of residence in the state. 83 Hawai#i at
520-21, 928 P.2d at 14-15. The Samonte Court considered
pertinent federal authority on the issue, and applied the same
"test" from Ross and Paccione, to determine whether the trial
court was "correct" to empanel an anonymous jury:
In general, the court should not order the empaneling of an
anonymous jury without (a) concluding that there is strong
reason to believe that the jury needs protection, and (b)
taking reasonable precautions to minimize any prejudicial
effects on the defendant and to ensure that his [or her]
fundamental rights are protected. Within these parameters,
the decision whether or not to empanel an anonymous jury is
left to the [trial] court's discretion.
Samonte, 83 Hawai#i at 520, 928 P.2d at 14 (quoting Paccione, 949
F.2d at 1192). The Court upheld the use of the "partially
anonymous" jury procedure under the circumstances of that case.
Id. at 523, 928 P.2d at 17.
Here, the Circuit Court imposed a confidential jury
procedure with limited jury anonymity, only for the defendants
but not for their counsels. Given the nature of the procedure
employed by the Circuit Court and Lafoga's arguments on appeal,
we conclude the general rule of Samonte addressing anonymous jury
procedures applies to the jury procedure employed in this case.
10
In the second trial, two jurors had been contacted by "anonymous
persons" urging them to convict defendant, resulting in a mistrial. Samonte,
83 Hawai#i at 520, 928 P.2d at 14.
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Whether the Circuit Court had a strong reason to
believe that the jury needed protection
As to the first Samonte criteria, the record does not
reflect that there was a "strong reason to believe that the jury
need[ed] protection[.]" Id. at 520, 928 P.2d at 14 (emphasis
added).
Sufficient reason for empaneling an anonymous jury has been
found to exist upon a showing of some combination of several
factors, including: (1) the defendant's involvement in
organized crime, (2) the defendant's participation in a
group with the capacity to harm jurors, (3) the defendant's
past attempts to interfere with judicial process, (4) the
potential that, if convicted, the defendant will suffer a
lengthy incarceration and substantial monetary penalties,
and (5) extensive publicity that could enhance the
possibility the jurors' names would become public and expose
them to intimidation or harassment.
Id. (quoting Ross, 33 F.3d at 1520). The record reflects that
the Circuit Court concluded that jury confidentiality was needed
for this case, as the Circuit Court anticipated jurors expressing
fear or anxiety about their jury service. The Circuit Court,
however, did not articulate any grounds for its concern that were
specific to this case or to these defendants. When the
prosecutor asked the Court why it felt the jurors' names should
be withheld, the Court explained that it was "trying to head off
a juror in this panel saying, I'm afraid to serve." In response,
Ines's counsel acknowledged: "I understand that concern," and
proposed a compromise that all parties and the Court found
acceptable. The Circuit Court then indicated that "in the past,"
the Court "had to inform jurors to quell anxiety" and stated "I
do believe that's the situation here . . . ." The State, Lafoga,
and Ines did not object to, or refute, the Court's expressed
concern and belief of juror anxiety or fear related to their
service in this particular case. We conclude that the Circuit
Court's belief that jurors may feel anxiety or fear, in the
absence of other stated reasons including "some combination" of
the factors set forth in Samonte, was insufficient to establish a
"strong reason to believe that the jury needs protection" to
justify the modified jury procedure used in this case. Id. at
520, 928 P.2d at 14 (emphases added). Although the Circuit Court
did not articulate a strong basis to meet the first Samonte
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criteria, the parties did not refute the Court's concern about
juror anxiety or fear of serving in this case, and instead
conferred with the Court on appropriate procedures to follow.
Whether the Circuit Court took reasonable
precautions to minimize any prejudicial effects
on the defendant
As to the second Samonte criteria, the record does
reflect that the Circuit Court took "reasonable precautions to
minimize any prejudicial effects on the defendant[.]" Id. The
Hawai#i Supreme Court explained what steps a trial court should
take to minimize such prejudice, as follows:
When a trial court empanels an anonymous jury, we would
normally prefer that the trial court address the burden that
a completely anonymous11 jury imposes on a criminal
defendant's presumption of innocence by the trial court's
giving jurors an instruction that further minimizes the
significance of their anonymity. The trial court should
give anonymous jurors a plausible and nonprejudicial reason
for not disclosing their identities that decreases the
probability that the jurors would infer that the defendant
is guilty or dangerous (e.g., the trial court could instruct
the jurors that the purpose for juror anonymity is to
protect the jurors from contacts by the news media, thereby
implying that juror anonymity is not the result of threats
from the criminal defendant).
Id. at 522, 928 P.2d at 16. (emphasis and footnote added).
Here, the Circuit Court administered a neutral
announcement, which was agreed to by the State, Lafoga, and Ines,
that the prospective jurors would be referred to by number and
not by name. The Circuit Court explained to the jury that if it
appeared that the parties had some information about them, it was
because they had copies of their names and juror information
cards with their telephone numbers and street addresses redacted.
The Circuit Court informed the jurors that the public would not
have access to their names and contact information, and that such
information was not made part of the public record of the case.
When the media appeared, the Circuit Court allayed the jury's
concerns by explaining that while the media was permitted to
cover the proceedings, the jurors' names were not part of the
11
This case did not involve a "completely anonymous" jury because
defense counsels had the jurors' names and information.
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public record, and the media was not allowed to take any pictures
or videos of them. While the Circuit Court mentioned that only
itself and the "attorneys" had the jurors' names, we conclude
that the omission of a similar reference to the defendants
themselves having such information was not prejudicial in this
case, where the defendants were present with their counsels
throughout the jury selection, and heard and saw the questioning
of all of the prospective jurors.
The record reflects that there was no basis upon which
the jurors could infer that the Circuit Court's procedure was
anything other than a policy that respected and sought to protect
the jurors' privacy from the general public and the media, that
had nothing to do with the guilt or potential dangerousness of
either defendant. See id. The record does not show that the
jury would necessarily draw, or was likely to draw, an adverse
inference of guilt or of dangerousness against either defendant.
The Circuit Court gave the jurors "a plausible and nonprejudicial
reason" for not disclosing their identities on the record and
adequately addressed any possible "prejudicial effects" on the
defendants. Id. at 520, 522, 928 P.2d at 14, 16. Thus, the
second Samonte criteria of minimizing any potential prejudice to
the defendants was met. The Samonte Court was concerned with
"the burden that a completely anonymous jury imposes on a
criminal defendant's presumption of innocence[.]" Id. at 522,
928 P.2d at 16 (emphasis added). This case did not involve a
"completely anonymous" jury where all information about the
jurors was withheld from defendants and their counsel. This case
involved limited juror anonymity -- anonymity only for the public
and the defendants, but not for defense counsels. "Considering
the totality of the circumstances" in this particular case, which
did not involve a completely anonymous jury, and where the
Circuit Court gave a plausible and nonprejudicial explanation for
the confidentiality of the jurors' names -- we conclude the
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Circuit Court's modified jury procedure did not constitute plain
error.12 Id. at 520, 523, 928 P.2d at 14, 17.
2. Ines's challenge to the Circuit Court's
"anonymous-to-the-defendants" jury procedure
did not constitute plain error under the
circumstances of this case.
Ines contends that the Circuit Court's procedure
violated HRS § 612-18(c)13 and Ines's right to a fair trial,
because the Court "sua sponte ordered juror anonymity for
[Ines]," and that "[Ines] personally, had no information
regarding any of the potential jurors, including name and
background information." Ines argues that the Circuit Court's
procedure was "a prophylactic measure without a basis in fact"
that deprived Ines of his substantial right to a fair trial,
which should be noticed as plain error where "the trial court,
sua sponte, raised the issue without prior notice to any of the
parties which required on the fly decisions." In response to the
State's argument that Ines's unpreserved claim of error should be
waived, Ines further argues in his Reply Brief that:
There was no incident which prompted the trial court's
action. There were no concerns stated by prospective jurors.
There was no warning of the trial court's intention to not
comply with Section 612-18(c), HRS, which necessitated
rushed and immediate decisions on the part of counsel. The
empaneling of an anonymous jury denied Ines of a fair trial
and amounted to plain error.
"Normally, an issue not preserved at trial is deemed to
be waived." State v. Fagaragan, 115 Hawai#i 364, 367-68, 167
P.3d 739, 742-43 (App. 2007) (citation omitted). The record
12
Although we do not find plain error in this case, a confidential
or anonymous procedure is an exception to general jury selection procedures
which are, by statute, not anonymous. See discussion infra. Any deviation
from the general jury selection procedures set forth in HRS Chapter 612 should
be undertaken in a careful exercise of discretion, observing the general
statutory prohibition against anonymous juries and the two-part Samonte
criteria to justify such a procedure.
In light of our resolution of Lafoga's contention, we need not
address Lafoga's claim of ineffective assistance of counsel.
13
HRS § 612-18 (1993 & Supp. 2014), entitled "Trial jury; additional
requirements," subsection (c) provides: "The names of prospective jurors to
be summoned to sit as a jury, and the contents of juror qualification forms
completed by those jurors, shall be made available to the litigants
concerned."
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reflects that objections and concerns were raised by all counsel
to the initial fully anonymous jury procedure, where the parties,
including counsels would not have the names. The discussion
regarding counsels' concerns resulted in the Circuit Court
scaling back its original proposed procedure to one where all
counsels, but not the defendants, would have the names, to which
all parties agreed. The specific objection Ines now raises on
appeal that the jury was fully anonymous to the defendants, was
not raised below, and we review for plain error. See Barnes, 145
Hawai#i at 218, 450 P.3d at 748. While we agree with Ines that
the Circuit Court's procedure did not comply with HRS § 612-
18(c), we nevertheless conclude, as explained infra, that there
was no plain error under the circumstances of this case.
HRS § 612-18(c) requires that the names and the
contents of the jurors' qualification forms "shall be made
available to the litigants concerned." (Emphasis added). The
term "litigant" is not defined by HRS Chapter 612. A court may
"resort to legal or other well accepted dictionaries as one way
to determine the ordinary meaning of certain terms not
statutorily defined." Wells Fargo Bank, N.A. v. Omiya, 142
Hawai#i 439, 449-50, 420 P.3d 370, 380-81 (quotation marks and
citations omitted). A "litigant" means, "[a] party to a lawsuit;
the plaintiff or defendant in a court action, whether an
individual, firm, corporation, or other entity." Litigant,
Black's Law Dictionary 1119 (11th ed. 2019) (emphasis added).
Thus, because the term "litigant" in the statute refers to the
defendants themselves, it was not sufficient to merely provide
the names and information to defense counsels. The Circuit
Court's procedure in this case did not comply with HRS § 612-
18(c).
HRS Chapter 612 deals with "Jurors," and includes HRS §
612-23, entitled "Challenging Compliance with Selection
Procedures." "HRS § 612-23 provides litigants with the exclusive
statutory method of challenging the selection of grand or trial
juries for non-compliance with the requirements of HRS Chapter
612." State v. Villeza, 85 Hawai#i 258, 265, 942 P.2d 522, 529
(1997). HRS § 612-23 (1993) provides:
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(a) Promptly after the moving party discovered or by
the exercise of diligence could have discovered the grounds
therefor, and in any event before the trial jury is sworn to
try the case, a party may move to stay the proceedings, and
in a criminal case to quash the indictment, or for other
appropriate relief, on the ground of substantial failure to
comply with this chapter in selecting the grand or trial
jury.
(b) Upon motion filed under subsection (a) containing
a sworn statement of facts which, if true, would constitute
a substantial failure to comply with this chapter, the
moving party is entitled to present in support of the motion
the testimony of the clerk, any relevant records and papers
not public or otherwise available used by the clerk, and any
other relevant evidence. If the court determines that in
selecting either a grand jury or a trial jury there has been
a substantial failure to comply with this chapter and that
the moving party has been prejudiced thereby, the court
shall stay the proceedings pending the selection of the jury
in conformity with this chapter, quash an indictment, or
grant other appropriate relief.
(c) The procedures prescribed by this section are the
exclusive means by which a person accused of a crime, the
State, or a party in a civil case may challenge a jury on
the ground that the jury was not selected in conformity with
this chapter.
(Emphases added). To obtain relief, the statute requires a
showing of "substantial failure to comply with this chapter" and
a showing of "prejudice." Id.
In Villeza, the defendant challenged the trial court's
redaction of potential jurors' addresses and phone numbers from
the juror qualification forms, by filing a motion to quash the
indictment. 85 Hawai#i at 261-62, 942 P.2d at 525-26. The
Villeza Court held that "[t]he partial redaction of the juror
qualification forms did not amount to a substantial failure to
comply with HRS Chapter 612." Id. at 264, 942 P.2d at 528.
"[T]o obtain relief under HRS § 612-23, the moving party must
show a substantial failure to comply with the law and that the
party has been prejudiced thereby." Id. at 265, 942 P.2d at 529
(quotation marks, brackets and citation omitted). Noting that
"[t]he prospective jurors' streets [sic] addresses and phone
numbers were unnecessary to any appropriate pretrial
investigation[,]" the Court held that "the mere redaction of
street addresses and telephone numbers did not lose, destroy, or
sacrifice Villeza's constitutional right to a presumption of
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innocence and an impartial jury." Id. at 266, 942 P.2d at 530
(citing Samonte, 83 Hawai#i at 523, 928 P.2d at 17).
Here, no motion for relief was filed, as required by
HRS § 612-23(a) and (c). Even if such a motion had been filed,
we conclude that relief would not be warranted because the non-
compliance with HRS § 612-18(c) was not substantial, where
defense counsels had the jurors' names and information, and where
both defendants were present during the entire jury selection
questioning. See HRS § 612-23(b); Villeza, 85 Hawai#i at 265,
942 P.2d at 529. Nor does the record reflect that either
defendant was prejudiced by this procedure, in light of the
neutral manner in which the procedure was implemented and
explained to both the prospective jurors and the trial jurors who
were ultimately selected. See Villeza, 85 Hawai#i at 265, 942
P.2d at 529. We conclude that, under the circumstances of this
case, Ines's right to a fair trial was not violated, and the
Circuit Court's anonymous-to-the-defendants jury procedure did
not constitute plain error. See Samonte, 83 Hawai#i at 520, 928
P.2d at 14.
C. As to Lafoga, the Circuit Court did not err in
refusing to instruct the jury on included
offenses below the Attempted Murder offense.
Lafoga contends that in Count 2, Attempted Murder, the
Circuit Court erred when it refused to instruct the jury on the
included offenses of Assault in the First Degree (Assault First),
and Assault in the Second Degree (Assault Second). Lafoga argues
that the Circuit Court had a duty to instruct the jury on any
included offenses "if there was a rational basis for the jury to
acquit Lafoga of Attempted Murder in the Second Degree" and
convict him of an included assault offense.
"Jury instructions on lesser-included offenses must be
given where there is a rational basis in the evidence for a
verdict acquitting the defendant of the offense charged and
convicting the defendant of the included offense." State v.
Kaeo, 132 Hawai#i 451, 465, 323 P.3d 95, 109 (2014) (quoting
State v. Flores, 131 Hawai#i 43, 51, 314 P.3d 120, 128 (2013)).
Thus, the Circuit Court's obligation to instruct the jury on
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Assault First and Assault Second depends on whether there was a
rational basis in the evidence presented for the jury to acquit
Lafoga of Attempted Murder and convict him of Assault First or
Assault Second.
The Circuit Court explained its refusal to instruct the
jury on the included assault offenses as follows:
THE COURT: The Court's going to refuse instructing on
the included offenses in Count No. 2 . . . . But given the
facts of this case, the Court concludes that Assaults in the
First, Second, and Third Degree are not applicable pursuant to
State v. Moore, 82 Hawaii 202, a 1996 case.
. . . .
In this case, the Court finds that the reasoning in
Kaeo is not applicable because there is no evidence for
the jury to find that Lafoga's intent was to only hurt the
complaining witness. As stated, even if there was such
testimony, the Court would nevertheless decline an
instruction on included offenses. The evidence in this
case includes the stated intent to kill, the initial shot
to the face, and three more shots to the body where
whenever the complaining witness showed any signs of life.
And these facts prohibits a rational basis to find an
alternate mens rea. Simply put, to conclude a state of
mind other than the conscious object to cause the death of
Kele Stout in this case would beggar belief.
So for those reasons, the Court would refuse
instructing on the included offenses of Assault 1, Assault
2, and Assault 3 for Count No. 2.
(Emphases added).
In State v. Moore, 82 Hawai#i 202, 211-12, 921 P.2d
122, 131-32 (1996), the Hawai#i Supreme Court held that included
offense instructions for first-degree and second-degree assault
were not supported by the evidence in a second-degree attempted
murder case, where Moore fired at least six shots at his wife
from "point-blank range," causing five gunshot wounds to the
upper body, with three in vital areas, where Moore waited thirty
minutes to get help for his wife, and made no attempt to
administer first aid. The Moore Court concluded: "[t]here is no
evidence . . . from which a reasonable juror could rationally
infer that Moore contemplated a result other than [the victim's]
death." Id. at 212, 921 P.2d at 132. Lafoga argues that, rather
than Moore, this case was factually closer to State v. Smith, 91
Hawai#i 450, 984 P.2d 1276 (App. 1999), in which this court held
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that the jury should have been instructed on the included offense
of assault for three counts of second-degree attempted murder
against three victims. In Smith, the defendant fired one shot to
the upper belly of the first victim, one shot to the back of the
second victim, and two shots at the third victim, only one of
which hit the third victim in the back. Id. at 454, 467, 984
P.2d at 1280, 1293. The Smith court noted that Smith did not
make any further attempts to injure or kill the victims, that
Smith had made statements indicating he "wanted to shoot" the
victims and teach them a lesson, but Smith did not indicate
whether Smith intended to cause the death of the victims or cause
serious or substantial injury to them. Id.
Lafoga argues that this case is "closer to Smith than
to Moore" because the jury could have found that Lafoga fired
only the first shot at Stout and not the rest, and if the jury so
found, then there was a rational basis for a juror to conclude
that Lafoga's intent was to cause serious or substantial injury
rather than death. Lafoga asserts that "a theory that Lafoga did
not fire all of the gunshots at Stout would have undercut the
trial court's assessment of the evidence and its refusal to
instruct the jury on assault." In support of this alternative
"second shooter" theory, Lafoga points to excerpts of testimony
that he claims show the possibility of a second shooter in the
passenger seat of the van, that Stout was unable to see.14
14
Lafoga argues that:
When Lafoga was driving the van with Stout in the back, he
stopped somewhere, bragged about the beating to someone, and
that third person then looked in the back window. Stout
testified that he did not believe a third person had entered
the van, but a juror might reasonably conclude that Stout
simply did not detect such a person. A DPA asked Stout:
"Could you also see the passenger side?" Stout testified:
"I was directly behind the driver – I mean the passenger
seat, so I could not." The DPA asked him: "Do you know if
– at that point in time if anybody else had gotten into the
van?" Stout replied: "If they did, they were really
silent, but I don’t believe so." Stout testified that, in a
previous statement, he had stated that the tools in the van
had impeded his view of the person who had shot him. After
Stout was shot in the face, assuming that Lafoga was one who
did that, he rolled onto his stomach. This testimony,
combined with Steinemann's testimony that Stout had gunshot
(continued...)
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Lafoga's theory and argument on appeal that "an
undetected passenger could have fired the second, third, and
fourth shots," after Lafoga fired the first shot to Stout's face,
is not supported by the evidence, or reasonable inferences from
the evidence. Before Lafoga fired the first shot to Stout's
face, the evidence reflects that Lafoga made a stop while driving
the van; at this stop Lafoga was talking and bragging to someone
about what they did to Stout; and the person Lafoga was speaking
to, came to the back window of the van to look inside. Stout
testified that the van doors were not opened at that point:
A. [(BY STOUT)] Eventually we stop somewhere and the
driver starts talking to some person he meets there, starts
bragging about what they've done to me, mentions that it
was him and [Ines], and then goes and tells the person to
go look through the back window.
Q. [(BY PROSECUTOR)] And did you see anybody come to
the back window?
A. I saw a figure, but I didn't get a good look at
anyone.
Q. So the doors weren't opened or anything like
that?
A. No.
Q. What happens next after that?
A. From there, just start driving again. I think
around this point the driver starts talking to me.
(Emphases added). Stout testified he "d[id]n't believe" that
someone else got into the van at that point:
Q. [(BY PROSECUTOR)] After you were taken into the
van, how many people got into the van?
A. [(BY STOUT)] Just the driver.
14
(...continued)
wounds in his back, his buttocks, and his leg, could lead a
reasonable juror to infer that Stout, while on the floor of
the van, was facing the rear doors and did not see the
shooter of the second, third, and fourth shots. With the
van being driven by Lafoga during those subsequent shots, a
reasonable juror could have inferred that an undetected
passenger could have fired the second, third, and fourth
shots, especially with tools in the van as obstacles. This
passenger would have exited the van when Lafoga did so.
Lafoga's Opening Brief, at 28 (emphases added) (docket citations omitted).
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Q. And as you were driving, you had indicated
that at some point you had been driven to a location
where there was another male that -- or another person,
rather, excuse me, that had come to the rear of the van
and peered into the window; is that right?
A. Yes.
Q. Do you know if -- at that point in time if
anybody else had gotten into the van?
A. If they did, they were really silent, but I
don't believe so.
(Emphases added). Stout also testified that there was not anyone
else in the van besides himself and Lafoga:
A. [(BY STOUT)] Only when he came up towards the
back to peer inside.
Q. [(BY INES'S COUNSEL)] Prior to him coming up
to peer inside, you could not tell how close or far he
was from the van?
A. Correct.
Q. 'Cause you couldn't see?
A. Correct.
Q. You can't even tell if this person got into the
van or didn't get into the van; is that correct?
A. I'd have heard the passenger door open and shut.
I'm on the passenger side.
Q. So it's your belief and testimony as you sit
here today that there was not a third person in the van?
A. Correct.
(Emphases added). The record shows that Lafoga's argument that
there was an undetected passenger in the van, who could have
fired the second, third and fourth shots at Stout, is not
supported by the evidence.
The Circuit Court cited Lafoga's stated intent to kill,
initial shot to Stout's face, and firing "three more shots" at
Stout's body whenever Stout "showed any signs of life," as
evidence refuting any rational basis for a jury acquittal of
Attempted Murder. The record supports the Circuit Court's
conclusion. Both Stout and Lafoga's ex-girlfriend DeCosta
testified that Lafoga said Stout was the first person Lafoga
would kill. Stout testified that Lafoga first shot Stout in the
face, then turned and shot Stout in the torso and buttock as
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Lafoga was driving. Lafoga told DeCosta that he shot a man in
the van, the man was begging and choking on his blood, Lafoga
told the man to shut up, and Lafoga turned around and shot the
man. Lafoga told DeCosta the man was dead, and Lafoga was going
to burn the van. Stout also heard Lafoga tell someone on the
phone that Lafoga was trying to burn the van with Stout's body
still in it.
Stout could "only recall three shots," but Dr.
Steinemann testified that Lafoga had at least four gunshot
wounds, to his scalp, jaw, torso, pelvis/rectum area, right
femur/hip bone, and left thigh. The two wounds that would have
been fatal if Stout had not received treatment, were the
pelvis/rectum wound and the jaw wound with the bullet still in
the left side of Stout's head. These life-threatening wounds
corresponded to Stout's testimony that Lafoga shot him in the
face, torso, and buttock.
Lafoga points to DeCosta's testimony that: Lafoga told
DeCosta that "he and Tonez took [Stout] up the valley;" that
Tonez was supposed to stay by the van and watch it; and that
Tonez also shot Stout. Lafoga claims on appeal that DeCosta's
testimony raises the possibility that Tonez "also shot Stout,"
and that Tonez could be the source of the fourth shot Dr.
Steinemann testified to. Even if the evidence shows a
possibility that Tonez may have fired a fourth shot at Stout, the
remaining evidence -- Lafoga's verbal intent to kill, Lafoga's
three shots to Stout's face, torso and buttock causing life-
threatening injuries, Lafoga's statements that Stout was dead and
that he would burn the van with Stout's body in it -- would
preclude a reasonable juror from rationally inferring that Lafoga
intended a result other than Stout's death. See Moore, 82
Hawai#i at 212, 921 P.2d at 132. Thus, there was no rational
basis in the evidence for the jury to acquit Lafoga of Attempted
Murder and convict him of either Assault First or Assault Second
Degree, and consequently the Circuit Court did not err in
refusing to instruct on the assault offenses. See Stanley, 148
Hawai#i at 500, 479 P.3d at 118; Kaeo, 132 Hawai#i at 465, 323
P.3d at 109; Moore, 82 Hawai#i at 212, 921 P.2d at 132.
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D. As to Ines, the Circuit Court did not err in
refusing to instruct the jury on offenses below
Accomplice to Attempted Murder and Conspiracy to
Commit Murder.
As to Ines, the Circuit Court instructed the jury on
Conspiracy to Commit Murder in Count 3, as an included offense to
Accomplice to Attempted Murder in Count 1, consistent with State
v. Reyes, 5 Haw. App. 651, 706 P.2d 1326, reconsideration denied,
5 Haw. App. 683, 753 P.2d 253 (1985) (holding that conspiracy to
commit murder is an included offense to accomplice to attempted
murder).15 Ines contends that the jury instructions were
erroneous because the Circuit Court refused to give the included
offense instruction that Ines requested, for Instruction Nos. 7,
9, and 11 for Criminal Conspiracy to Commit Assault in the First
Degree, Second Degree and Third Degree (Conspiracy to Commit
Assault 1, 2, and 3)16 and included offense instructions for
15
In Reyes, this court held that, under HRS § 701-109 (Method of
Prosecution when Conduct Establishes an Element of More than one Offense), and
§ 705-531 (Multiple Convictions), the trial court may not allow the jury to
find a defendant guilty of being an accomplice to an attempted murder and of
conspiracy to commit the same murder, and that the conspiracy count should be
treated as an included offense to accomplice to attempted murder. 5 Haw. App.
at 658, 706 P.2d at 1330. The Reyes court stated: "if both counts are
submitted to the jury, the jury must be instructed that it may decide the
conspiracy count only in the event it does not find the defendant guilty of
the accomplice to attempted murder count." Id. (citations omitted).
16
Ines's proposed Instruction No. 7 stated:
9.15 CRIMINAL CONSPIRACY ASSAULT IN THE FIRST DEGREE
If and only if you find Ranier Ines not guilty of attempted
murder in the second degree as an accomplice or a
conspirator or you are unable to reach a unanimous verdict
as to accomplice liability or the conspiracy, then you must
consider whether Ranier Ines is guilty or not guilty of
criminal conspiracy to commit assault in the first degree.
A person commits the offense of criminal conspiracy if, with
intent to promote or facilitate the commission of a crime,
he agrees with one or more persons that one or more of them
or they will engage in or solicit a substantial step in
committing assault in the first degree, and he, a person who
had joined the agreement, commits an overt act for the
purpose of carrying out the agreement.
There are three material elements of the offense of criminal
conspiracy, each of which the prosecution must prove beyond
a reasonable doubt.
(continued...)
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16
(...continued)
These three elements are:
1. On or about September 16, 2015, in the City and
County of Honolulu, Ranier Ines agreed with one
or more persons that one or more of them or they
would engage in assault in the first degree; and
2. While the agreement was in effect, Ranier Ines,
a person who had joined the agreement committed
one or more of the following overt acts for the
purpose of carrying out the agreement:
a. Ranier Ines restrained Kele Sout at
gunpoint.
b. Ranier Ines called Brandon Lafoga.
c. Ranier Ines told Brandon Lafoga to get
ready because Ranier Ines was bringing
someone who needed a beating.
d. Ranier Ines instructed Kele Stout to drive
to a residence in Waianae, and he did so
at gunpoint.
e. Ranier Ines and Brandon Lafoga beat Kele
Stout while Kele Stout's hands were bound.
and
3. Ranier Ines joined in the agreement with
intent to promote or facilitate the
commission assault in the first degree,
and the overt acts were also committed with
such intent.
A person commits the offense of Assault in the
First Degree if he intentionally or knowingly
causes serious bodily injury to another person.
There are two material elements of the offense
of Assault in the First Degree, each of which the
prosecution must prove beyond a reasonable doubt.
These two elements are:
1. On or about September 16, 2015, in the City
and County of Honolulu, the defendant caused
serious bodily injury to another person; and
2. The Defendant did so intentionally or knowingly.
In order to find the Ranier Ines guilty, you must
unanimously agree as to the particular overt act
committed.
Ines's proposed Instruction No. 9, "Criminal Conspiracy Assault in the Second
Degree" contained substantially similar wording, with references to "assault
in the first degree" changed to "assault in the second degree," and providing
the definition of assault in the second degree at the end of the instruction.
Ines's proposed Instruction No. 11, for "Criminal Conspiracy Assault in the
(continued...)
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Assault in the First, Second, and Third Degrees (Assault 1, 2,
and 3) for Accomplice to Attempted Murder in Count 1.17 Ines
argues that there was "a rational basis in the evidence to acquit
Ines" of Accomplice to Attempted Murder and Conspiracy to Commit
Murder, and to convict him of the included offenses of Conspiracy
to Commit Assault 1, 2, and 3, or Assault 1, 2, and 3.
The Circuit Court refused Ines's requested
instructions for Conspiracy to Commit Assault 1, 2 and 3,
reasoning that these offenses were not included offenses of
Conspiracy to Commit Murder, as follows:
The Court will respectfully deny the request to
include included offenses for Count No. 3, Conspiracy to
Commit Murder in the Second Degree. Criminal liability for
conspiracy is predicated on the agreement of the defendants
to commit murder and not any other offense. The kernel of
the crime is in the meeting of the minds of both defendants
to cause the death of Kele Stout, and the commission of an
overt act is just manifestation of the agreement.
Logically to this Court a meeting of the minds cannot
exist for different desired results. There can be an
agreement for one purpose, and in this case it is causing
the death of Kele Stout.
No case law is on point in Hawaii. But the California
Court of Appeals persuasively holds that conspiracy is a
crime distinct from the substantive offense that is its
object. It does not require commission of the substantive
offense. The conspiratorial agreement is itself the essence
of the crime and is what it seeks to punish. That is why
once one of the conspirators has performed the overt act in
furtherance of the agreement, the association becomes an
active force. It is the agreement, not the overt act, which
is punishable. Hence the overt act need not amount to a
criminal attempt and it need not be criminal in itself. . .
.
Further, even though the pled overt acts might
encompass an included offense to murder, the charged
language specifies a single conspiratorial agreement of the
defendants to cause the death of Kele Stout. And because
the conspiratorial agreement is the true crime, conspiracy
16
(...continued)
Third Degree" followed the same format, with similar corresponding variations.
17
It is not clear from the record, whether Ines specifically
requested Assault 1, 2, and 3 as included offenses of Count 1, Accomplice to
Attempted Murder. The record reflects that the Assault 1, 2, and 3
instructions were argued only with respect to Count 2 (Attempted Murder
against Lafoga), and there is no specific mention of these same offense
instructions being requested for Count 1 against Ines. Nevertheless, we
review Ines's contention under the plain error standard of review. See
DeLeon, 131 Hawai#i at 479, 319 P.3d at 398.
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to commit assault is not an included offense.
. . . .
And accordingly, this Court concludes that there are
no included offenses for the charge of Conspiracy to Commit
Murder in the Second Degree and respectfully denies any
request to include included offenses.
(Emphasis added).
The Circuit Court relied on authority from other
jurisdictions, People v. Cortez, 234 Cal. Rptr. 3d 609 (Cal. Ct.
App. 4 Dist. 2018) and the unpublished disposition of State v.
Vasquez, No. 110,735, 2014 WL 5614635 (Kan. Ct. App. Oct. 24,
2014). In Cortez, the defendant argued that the trial court was
required to instruct on conspiracy to commit assault with a
firearm, and conspiracy to shoot into an inhabited home, as
included offenses of conspiracy to commit murder. 234 Cal. Rptr.
3d at 615-16. The court observed that for a conspiracy offense,
"[t]he conspiratorial agreement is itself the essence of the
crime," and "it is the agreement, not the overt act, which is
punishable." Id. at 618 (citation omitted). The Cortez court
held:
[T]he trial court was not required to instruct sua sponte on
either of these offenses, because the accusatory pleadings
did not place defendant on notice of prosecution of any
conspiracy offense, other than conspiracy to commit murder.
Although the overt acts allegations describe acts that would
support charges for assault and shooting at an inhabited
dwelling, such allegations are insufficient to support
charges based on those target offenses, because there are no
allegations of the requisite element of defendant agreeing
or conspiring to commit those target offenses. Therefore,
the trial court did not err in not sua sponte instructing on
conspiracy to commit assault or shoot at an inhabited
dwelling as lesser included offenses of conspiracy to commit
murder.
Id. at 620 (emphasis added) (citations omitted).
In Vasquez, the prosecution had charged the defendant
(with respect to a complainant named Magdiel Cobieya, in a case
involving multiple complainants) with attempted first-degree
murder and conspiracy to commit first-degree murder. 2014 WL
5614635, at *1. The trial court instructed the jury on
aggravated battery as a lesser included offense of attempted
murder, and on conspiracy to commit aggravated battery as a
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lesser included offense of the conspiracy to commit murder; the
jury convicted Vasquez of these lesser offenses. Id. The
appellate court reversed, holding that aggravated battery was not
an included offense of attempted murder, and that conspiracy to
commit aggravated battery was not an included offense of
conspiracy to commit murder, as follows:
[A] conspiracy to commit first-degree murder, as charged
here, requires an agreement among the participants to carry
out an intentional killing. A conspiracy to commit an
aggravated battery is a different crime essentially
entailing an agreement to inflict bodily harm, great bodily
harm, or a similar injury short of death of the victim. So
a conspiracy to commit aggravated battery is not a lesser
offense of a conspiracy to commit murder, since those crimes
have different agreed-upon objectives and, hence, different
elements.
Id. at *2 (emphases added) (citation omitted).
On appeal, Ines does not challenge the Circuit Court's
specific ruling that the offenses that Ines requested
instructions for, were not included offenses for Conspiracy to
Commit Murder. Instead, Ines argues that the evidence showed a
rational basis to acquit Ines of Accomplice to Attempted Murder
and Conspiracy to Commit Murder and to convict him of one of the
lesser offenses he requested instruction for, because the
evidence reflected Ines's intent was only to harm, and not
necessarily to kill Stout. Ines points to evidence that Ines was
heard to say at the outset of the incident, "This person needs a
beating;" and that Ines told Stout, "I'm not going to kill you,
we're just gonna beat you and let you go." Ines argues that his
statement ordering someone to "take care of the body" or "take
care of him" was "vague and unclear," and "did not necessarily
mean to shoot or kill Stout," and posits that "Lafoga may have
chosen to shoot Stout on his own."
We do not reach Ines's contention that there was a
rational basis to instruct on Assault 1, 2, and 3 and Conspiracy
to Commit Assault 1, 2, and 3, because we conclude that these
offenses are not included offenses of Accomplice to Attempted
Murder or Conspiracy to Commit Murder under HRS § 701-
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109(4)(a).18 We also find the cases cited by the Circuit Court
persuasive.
An offense is included under HRS § 701-109(4)(a) when
it is established by proof of the same or less than all of the
facts required to prove the charged offense. "The general rule
is that an offense is included if it is impossible to commit the
greater without also committing the lesser." Manuel, 148 Hawai#i
at 440, 477 P.3d at 880 (internal quotation marks omitted)
(quoting State v. Friedman, 93 Hawai#i 63, 72, 996 P.2d 268, 277
(2000) (citation omitted)). Assault 1, 2, and 3 require proof of
bodily injury, with the severity of injury determining the grade
of assault. See HRS §§ 707-710, 707-711, 707-712. An Accomplice
to Attempted Murder offense does not require proof of bodily
injury; rather, in this case the State was required to prove the
conduct of aiding or agreeing or attempting to aid another person
in the planning or commission of the target offense of Attempted
18
HRS § 701-109(4) (2014) provides that an offense is "included in
an offense charged in the . . . indictment" if:
(a) It is established by proof of the same or less than
all the facts required to establish the commission of
the offense charged;
(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 indicating lesser degree of
culpability suffices to establish its commission.
Subsection (4)(b) does not apply because Assault 1, 2, and 3 do
not consist of an attempt to commit Accomplice to Attempted Murder, and
Conspiracy to Commit Assault 1, 2, and 3 do not consist of an attempt to
commit Conspiracy to Commit Murder.
Subsection (4)(c) also does not apply. "An offense is a lesser
included offense under HRS § 701-109(4)(c) if it either (a) creates a 'less
serious risk of injury' to the same person or (b) 'a different state of mind
indicating a lesser degree of culpability suffices to establish its
commission.'" Flores, 131 Hawai#i at 52, 314 P.3d at 129 (quoting HRS § 701-
109(4)(c)). The offenses must otherwise be similar, with these two
differences (i.e. degree of risk of injury and state of mind), as the "only"
permissible distinctions between the offenses. HRS § 701-109(4)(c). As we
explain infra, the greater offenses of Accomplice to Attempted Murder and
Conspiracy to Commit Murder are materially different from the lesser offenses
of Assault 1, 2 and 3, and Conspiracy to Commit Assault 1, 2, and 3. The
greater offenses of Accomplice to Attempted Murder and Conspiracy to Commit
Murder are also not injury-dependent offenses.
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Murder. HRS § 702-222(1)(b);19 see State v. Brantley, 84 Hawai#i
112, 121, 929 P.2d 1362, 1371 (App. 1996) (distinguishing proof
of accomplice liability for second degree murder from second
degree murder); Vasquez, 2014 WL 5614635, at *2 (holding that
aggravated battery not an included offense of attempted murder).
Because it is possible, rather than "impossible," to commit the
greater offense of Accomplice to Attempted Murder without also
committing the lesser offenses of Assault 1, 2, and 3, the
assault offenses are not included offenses for Accomplice to
Attempted Murder under HRS § 701-109(4)(a). Manuel, 148 Hawai#i
at 440, 477 P.3d at 880.
Similarly, we conclude that Conspiracy to Commit
Assault 1, 2, and 3 are not included offenses under HRS § 701-
109(4)(a) for Conspiracy to Commit Murder. "Criminal conspiracy"
requires the defendant to "agree[] with one or more persons" that
they or one of them "will engage in or solicit" either the
conduct or the result of the specific offense, and the commission
of "an overt act in pursuance of the conspiracy." HRS § 705-
520.20 Here, Ines was charged in Count 3 that he and Lafoga
19
HRS § 702-222(1) (2014), the accomplice liability statute,
provides:
A person is an accomplice of another person in the
commission of an offense if:
(1) With the intention of promoting or facilitating
the commission of the offense, the person:
(a) Solicits the other person to commit it;
(b) Aids or agrees or attempts to aid the
other person in planning or committing it;
or
(c) Having a legal duty to prevent the
commission of the offense, fails to make
reasonable effort so to do . . . .
20
HRS § 705-520 (2014), "Criminal conspiracy," provides:
A person is guilty of criminal conspiracy if, with intent to
promote or facilitate the commission of a crime:
(1) He agrees with one or more persons that they or one or
more of them will engage in or solicit the conduct or
will cause or solicit the result specified by the
definition of the offense; and
(continued...)
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"did agree with each other that they or one or more of them would
engage in . . . and/or solicit the result specified" in the
offense of "Murder in the Second Degree" and that it "was part of
said conspiracy that the Defendants would intentionally or
knowingly cause the death of Kele Stout." Thus, the Conspiracy
to Commit Murder required an agreement by Ines and Lafoga "to
carry out an intentional killing" of Stout, but a Conspiracy to
commit an assault "is a different crime essentially entailing an
agreement to inflict" some degree of bodily injury "short of
death of the victim." Vasquez, 2014 WL 5614635, at *2. Because
the offenses are different, it is possible, rather than
"impossible," to commit the greater offense of Conspiracy to
Commit Murder, without also committing the lesser offenses of
Conspiracy to Commit Assault 1, 2, and 3. Manuel, 148 Hawai#i at
440, 477 P.3d at 880. Thus, HRS § 701-109(4)(a) does not apply.
For these reasons, the Circuit Court did not err in
refusing the instructions, as Assault 1, 2, and 3, and Conspiracy
to Commit Assault 1, 2, and 3, were not lesser offenses to the
greater offenses of Accomplice to Attempted Murder and Conspiracy
to Commit Murder. See id. at 439, 477 P.3d at 879.
E. The jury instruction that referred to a non-
extended sentence for Attempted Murder as a
"possible life term of imprisonment" was not
erroneous under State v. Keohokapu.
Both Lafoga and Ines contend that during the extended
term trial, the Circuit Court erred in its extended term jury
instruction for the Attempted Murder offense, where the jury was
instructed that the non-extended sentence for Attempted Murder
for Lafoga, and Accomplice to Attempted Murder for Ines, was a
"possible life-term of imprisonment."21
20
(...continued)
(2) He or another person with whom he conspired commits an
overt act in pursuance of the conspiracy.
21
As to Lafoga, the Circuit Court instructed:
In Counts 2, 4, 6, and 8, the prosection has alleged
(continued...)
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21
(...continued)
that Defendant Brandon Fetu Lafoga is a persistent offender,
a multiple offender, and that extended terms of imprisonment
are necessary for the protection of the public. The
prosecution has the burden of proving these allegations
beyond a reasonable doubt. It is your duty to decide, in
each count, whether the prosecution has done so by answering
the following three essential questions on special
interrogatory forms that will be provided to you:
1. Has the prosecution proved beyond a reasonable
doubt that Defendant Brandon Fetu Lafoga is a persistent
offender in that he has previously been convicted of two or
more felonies committed at different times when he was
eighteen years of age or older?
2. Has the prosecution proved beyond a reasonable
doubt that Defendant Brandon Fetu Lafoga is a multiple
offender in that he is being sentenced for two or more
felonies?
3. Has the prosecution proved beyond a reasonable
doubt that it is necessary for the protection of the public
to extend the sentences for Defendant Brandon Fetu Lafoga in
Count 2 from a possible life term of imprisonment to a
definite life term of imprisonment, in Counts 4 and 6 from a
possible twenty-year term of imprisonment to a possible life
term of imprisonment, and in Count 8 from a possible ten-
year term of imprisonment to a possible twenty-year term of
imprisonment?
(Emphasis added).
As to Ines, the Circuit Court instructed:
In Counts 1, 5, and 7, the prosecution has alleged
that Defendant Ranier Ines is a persistent offender, and
that extended terms of imprisonment are necessary for the
protection of the public. The prosecution has the burden of
proving these allegations beyond a reasonable doubt. It is
your duty to decide, in each count, whether the prosecution
has done so by answering the following two essential
questions on special interrogatory forms that will be
provided to you:
1. Has the prosecution proved beyond a reasonable
doubt that Defendant Ranier Ines is a persistent offender in
that he has previously been convicted of two or more
felonies committed at different times when he was eighteen
years of age or older?
2. Has the prosecution proved beyond a reasonable
doubt that it is necessary for the protection of the public
to extend the sentences for Defendant Ranier Ines in Count 1
from a possible life term of imprisonment to a definite life
term of imprisonment, and in Counts 5 and 7 from a possible
twenty-year term of imprisonment to a possible life term of
imprisonment?
(Emphasis added).
(continued...)
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Specifically, the defendants challenge the language that asked
the jury whether it was "necessary for the protection of the
public to extend" the sentence "from a possible life term of
imprisonment to a definite life-term of imprisonment." Lafoga
argues that the Circuit Court's instruction "characterized the
non-extended sentence for attempted murder in the second degree
as a 'possible life term of imprisonment' understated the
penalty" for the offense, and was "misleading and confusing and
prejudiced Lafoga." Ines argues that the instruction was
"incorrect and misleading as it gave the jury the impression that
without the jury finding 'it was necessary for the protection of
the public,' Ines may not be sentenced to life imprisonment." As
explained infra, we reject the defendants' contentions in light
of State v. Keohokapu, 127 Hawai#i 91, 276 P.3d 660 (2012), which
is dispositive.
Lafoga objected below to the instruction as follows,
joined by Ines:
[LAFOGA'S COUNSEL]: Judge, we would be objecting to
the Court's instruction on page 30 and 31. And our specific
objection is that in paragraph 3, line 3, the Court
discusses and uses the phrase or the words possible life
term of imprisonment. And we would argue at this point in
time that a possible life term of imprisonment would lead or
could lead one or more of the jurors to think that there was
not going to be a life term of imprisonment here. In other
words, when you use the word possible, it means it's –- it
can be interpreted as being, oh, there may be a life term of
imprisonment or there may not be a life term of
imprisonment. So we object to the –- to the phrase possible
term of imprisonment.
. . . .
I think that's crystal clear that there's going to be a life
sentence and that the only question is whether or not
there's ever going to be a chance for parole. And that's
why I submitted the –- the instructions regarding what
parole is also.
So we would argue that long story short is that the
phrase possible life term of imprisonment could leave the
21
(...continued)
These instructions for both defendants followed Hawai#i Pattern
Jury Instructions - Criminal (HAWJIC) 19.3.1A (Persistent offender under HRS §
706-662(1)) and 19.3.4A (Multiple offender under HRS § 706-662(4)), which
identically provide in pertinent part: "2. Has the prosecution proved beyond
a reasonable doubt that it is necessary for the protection of the public to
extend the Defendant's sentence from a . . . [possible life term of
imprisonment] to a . . . [definite life term of imprisonment]?"
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jury to think that there's not going to be a life term of
imprisonment. If the jury is led to believe that there's
not going to be a life term of imprisonment, then it's --
it's more likely that they will say that an extended term is
necessary for the protection of the public. And for that
reason, we object, Judge.
(Emphases added). The Circuit Court overruled the objection.22
Neither the Circuit Court nor the parties mentioned Keohokapu at
this point, but in subsequent discussion on whether a defense
witness would be allowed to testify regarding parole procedure,
the Circuit Court addressed Keohokapu, and ruled that the jury
instructions "should not include the mention of parole," citing
Keohokapu.23
The extended term jury instruction for both defendants
was not erroneous under State v. Keohokapu. In Keohokapu, the
Hawai#i Supreme Court reviewed the instructions on parole
procedures that were given to the jury in that case, and
explained that the jury "is responsible only for determining
whether the prosecution has proven beyond a reasonable doubt the
facts necessary for the imposition of an extended term." 127
Hawai#i at 111, 276 P.3d at 680 (citations omitted). The jury
"must find that a longer term than the statutory maximum is
necessary for the protection of the public." Id. The Keohokapu
Court held that: "[t]o determine whether an extended term of
imprisonment is necessary for the protection of the public, . . .
the jury should not be instructed about the procedures of the
22
In overruling the objection, the Circuit Court initially stated:
THE COURT: I understand the concern and the
objection, [Lafoga's Counsel]. It sort of dovetails into
the Court's previous concern about having the jury making or
at least having on their mind that they are in fact
fashioning the sentence in this case when they are not.
. . . .
So over Defendant Lafoga's objection, the instructions
on page 30 and 31 will be given to the jury.
(Emphasis added).
23
Despite the Circuit Court's express reliance on Keohokapu as a
basis for its ruling overruling the defendants' objection to the "possible
life term of imprisonment" language in the instruction, none of the parties
addressed Keohokapu in their briefs.
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Hawai#i Paroling Authority, or that the sentence includes the
possibility of parole." Id. "Whether the defendant will ever be
paroled is pure speculation since parole is dependent on
circumstances in the future and is discretionary with the Hawai#i
Paroling Authority." Id. at 112, 276 P.3d at 681. The choice
for the jury in Keohokapu involved whether to extend a 20-year
sentence for manslaughter to life with the possibility of parole.
Id. at 110, 276 P.3d at 679. The Supreme Court held:
The jury should instead have been instructed and asked
whether it was necessary to extend Petitioner's sentence
from a possible twenty year sentence to a possible life
sentence for the protection of the public. Also, an
interrogatory phrased in this manner would have been
accurate and at the same time would not direct the jury's
attention to the potential issues of parole. This would be
the appropriate way for the jury to consider the maximum
length of the two potential terms.
Id. at 112, 276 P.3d at 681 (emphases added) (footnote omitted).
The Keohokapu Court also specifically addressed how a
jury instruction should be fashioned in a case such as ours,
involving a choice between life with or without parole, in
footnote 33:
This case does not involve a choice between life with the
possibility of parole and life without the possibility of
parole, such as in the case of a motion for extended term
for the offense of murder in the second degree pursuant to
HRS § 706-661(1). See n. 6. supra. The court may impose an
extended term of life without parole under HRS § 706-661(1)
if the jury finds pursuant to HRS § 706-662 that an extended
term is necessary for the protection of the public, as well
as one or more of the factors specified under HRS § 706-662.
A like instruction in such a case would be to instruct the
jury to consider whether the defendant's sentence should be
extended from possible life imprisonment to a definite (or
fixed) sentence of life imprisonment.
Id. at 112 n.33, 276 P.3d at 681 n.33 (emphases added).
Here, the extended term jury instructions for both
defendants had the jury consider whether the defendants'
sentences should be extended "from a possible life term of
imprisonment to a definite life term of imprisonment," consistent
with Keohokapu, and were not inaccurate, or misleading. See
Stanley, 148 Hawai#i at 500, 479 P.3d at 118. To include the
parole references of "with" or "without" the "possibility of
parole," would run afoul of the Keohokapu Court's admonition that
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"the jury should not be instructed" about parole procedures, and
their attention should not be directed to "the potential issues
of parole." 127 Hawai#i at 111-12, 276 P.3d at 680-81. We
conclude that the Circuit Court's extended term jury instructions
for both defendants were not erroneous. See id.
F. Extended sentencing under HRS § 706-661(1)
applies to attempted second degree murder.
Both Lafoga and Ines contend that the extended
sentencing statute, HRS § 706-661(1), only applies to second
degree murder and not to attempted second degree murder. The
issue here is whether the "murder in the second degree" reference
in the extended sentencing statute HRS § 706-661(1),24 includes
attempted murder in the second degree. We conclude that it does.
At Lafoga's sentencing, the Circuit Court granted the
State's request for an extended term for Lafoga on Count 2,
Attempted Murder, under HRS § 706-661(1), sentencing Lafoga to
life without parole,25 reasoning as follows:
THE COURT: In Count No. 2, the Court also adopts the
finding of the jury in the previous conclusions and does
find, despite the language of the statute, that the extended
24
HRS § 706-661 (2014) provides:
Extended terms of imprisonment. The court may sentence
a person who satisfies the criteria for any of the
categories set forth in section 706-662 to an extended
term of imprisonment, which shall have a maximum length as
follows:
(1) For murder in the second degree--life without the
possibility of parole;
(2) For a class A felony--indeterminate life term of
imprisonment;
(3) For a class B felony--indeterminate twenty-year term of
imprisonment; and
(4) For a class C felony--indeterminate ten-year term of
imprisonment.
When ordering an extended term sentence, the court shall
impose the maximum length of imprisonment. The minimum
length of imprisonment for an extended term sentence under
paragraphs (2), (3), and (4) shall be determined by the
Hawaii paroling authority in accordance with section
706-669.
25
Lafoga's counsel objected without argument to the imposition of
extended terms. The argument made on appeal was not raised below.
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term is applicable. And even though 706-661 only specifies
Murder in the Second Degree, the Court is mindful, as
pointed out by [the Prosecutor], that limitation that
excludes other A felonies such as Attempted Murder in the
Second Degree as in this case, as well as Accomplice to
Commit Murder in the Second Degree that's applicable to the
co-defendant in this case. It would be an absurdity to have
those serious offenses not be subject to extended terms, so
the Court cannot conclude that the omission was purposeful
by the legislature when the premise of extended terms are
for the protection of the public.
And the Court is mindful of interpretation rules
pursuant to State versus Tsujimura, T-S-U-J-I-M-U-R-A, 140
Haw. 229 (sic), 2017, wherein the Court is obliged to
construe statutes such that they do not lead and result in
absurdity. This conclusion is also in pari materia with the
Hawaii statutory scheme that treats murder and attempted
murder, unless it manifests exception of depravity,26 to be
the same severity for sentencing purposes. And this is HRS
Section 706-656 and pursuant to State versus Hussein, H-U-S-
S-E-I-N, 122 Haw. 495, 2010, where the supreme court has
indicated that statutes that relate to sentencing should be
construed in pari materia.
(Footnote added). At Ines's sentencing, the Circuit Court
reiterated the same reasoning based on statutory construction
principles, and sentenced Ines to an extended term of life
without parole in Count 1, Accomplice to Attempted Murder.27
In support of his argument, Lafoga points to other
sentencing statutes that distinctly refer to second degree murder
26
The Circuit Court was referring to HRS § 706-657 (2014), "Enhanced
sentence for second degree murder," for a murder that is "especially heinous,
atrocious, or cruel, manifesting exceptional depravity . . . ." This statute,
like HRS § 706-661, does not expressly enumerate "attempted" second degree
murder, and provides as follows:
The court may sentence a person who was eighteen years of
age or over at the time of the offense and who has been
convicted of murder in the second degree to life
imprisonment without the possibility of parole under section
706-656 if the court finds that the murder was especially
heinous, atrocious, or cruel, manifesting exceptional
depravity or that the person was previously convicted of the
offense of murder in the first degree or murder in the
second degree in this State or was previously convicted in
another jurisdiction of an offense that would constitute
murder in the first degree or murder in the second degree in
this State.
(Emphasis added).
27
Ines's counsel did not object to the extended sentence, and on
appeal, Ines challenges the sentence as illegally imposed. HRPP Rule 35(a)
provides that the court "may correct an illegal sentence at any time . . . ."
See also Flubacher v. State, 142 Hawai#i 109, 114 n.7, 414 P.3d 161, 166 n.7
(2018) (noting that pursuant to HRPP Rule 35, the court may correct an illegal
sentence at any time).
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and attempted second degree murder as separately enumerated
offenses, such as HRS §§ 706-606.5(2), 706-656(2), and 706-
660.1.28 According to Lafoga, these statutes all consistently
show that "'murder in the second degree' is not an umbrella term
that encompasses both murder in the second degree and attempted
murder in the second degree." Lafoga argues that based on the
plain meaning of HRS § 706-661(1), Lafoga was not subject to an
extended sentence of life without parole for Attempted Murder.
Ines similarly claims his sentence for Accomplice to Attempted
Murder "was illegal" because the "plain and unambiguous" language
of HRS § 706-661(1) "does not provide for an extended term of
imprisonment for attempted murder in the second degree."
As the defendants point out, the extended sentencing
statute, HRS § 706-661, does not specifically include the offense
of attempted second degree murder in subsection (1). We do not
agree with the defendants, however, that the absence of the word
"attempted" necessarily means that the attempted second degree
murder offense is excluded. The State urges this court to read
HRS §§ 705-502 and 706-661 together, to conclude that attempted
second degree murder "clearly does not fall under any of the
other classes of felonies," and thus, the offense should be
included in subsection (1). We find this argument persuasive.
28
HRS § 706-606.5, "Sentencing of Repeat Offenders, "repeatedly
references "murder in the second degree or attempted murder in the second
degree" throughout the statute. (Emphasis added). HRS § 706-656(2), "Terms
of Imprisonment for First and Second Degree Murder and Attempted First and
Second Degree Murder," provides: "persons convicted of second degree murder
and attempted second degree murder shall be sentenced to life imprisonment
with possibility of parole." (Emphasis added). HRS § 706-660.1, "Sentence of
Imprisonment for Use of a Firearm, Semiautomatic Firearm, or Automatic Firearm
in a Felony," repeatedly references "murder in the second degree and attempted
murder in the second degree" throughout the statute. (Emphasis added).
Additional sentencing statutes contain the same separate
enumeration. See HRS § 706-610(1) ("Class of Felonies") ("Apart from first
and second degree murder and attempted first and second degree murder,
felonies defined by this Code are classified, for the purposes of sentence,
into three classes . . . ."); HRS § 706-620(1) ("Authority to Withhold
Sentence of Imprisonment") (stating "first or second degree murder or
attempted first or second degree murder"); HRS § 706-640(1)(a) ("Authorized
Fines") (providing for a $50,000 fine "when the conviction is of a class A
felony, murder in the first or second degree, or attempted murder in the first
or second degree"); and HRS § 706-667(4) ("Young Adult Defendants") (stating
that "[T]his section shall not apply to the offenses of murder or attempted
murder."). But see HRS § 706-657 (enhanced sentence for second degree murder
of "exceptional depravity"), quoted supra.
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"Laws in pari materia, or upon the same subject
matter, shall be construed with reference to each other. What is
clear in one statute may be called in aid to explain what is
doubtful in another." HRS § 1-16 (2009); see State v. Glenn, 148
Hawai#i 112, 127, 468 P.3d 126, 141 (2020) (quoting State v.
Kamana#o, 118 Hawai#i 210, 218, 188 P.3d 724, 732 (2008) ("It is a
canon of construction that statutes that are in pari materia may
be construed together, so that inconsistencies in one statute may
be resolved by looking at another statute on the same
subject.")).
The statutes in the Hawai#i Penal Code (the Code) that
address the classification of attempt offenses, classes of
felonies, classification and grading of second degree murder, and
defining the second degree murder offense, i.e. HRS §§ 701-107,
705-502, 706-610, and 707-701.5 -- all serve as an "aid to
explain" whether the "murder in the second degree" reference in
the HRS § 706-661(1) extended sentencing statute includes
attempted murder in the second degree. See HRS § 1-16.
HRS § 701-107 (2014), "Grades and classes of offenses,"
provides that offenses defined under the Code are of three
grades: felonies, misdemeanors, and petty misdemeanors.
"Felonies include murder in the first and second degrees,
attempted murder in the first and second degrees, and the
following three classes: class A, class B, and class C." Id.
(emphasis added). Thus, HRS § 701-107 establishes that attempted
second degree murder is a felony that is separate and
distinguishable from Class A, B, and C felonies.
HRS § 705-502 (2014), "Grading of criminal attempt,"
provides: "An attempt to commit a crime is an offense of the
same class and grade as the most serious offense which is
attempted." Thus, HRS § 705-502 establishes that attempted
second degree murder and second degree murder are treated as the
same grade of offense.29
29
In his Reply Brief, Lafoga argues that pursuant to the Commentary
to HRS § 705-502, "[a]ttempted murder is treated as an ordinary class A
felony," the "extended sentence for an ordinary class A felony is an
(continued...)
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HRS § 706-610(1) (2014), "Classes of felonies,"
provides that: "Apart from first and second degree murder and
attempted first and second degree murder, felonies defined by
this Code are classified, for the purpose of sentence, into three
classes," Class A, B, and C felonies. (Emphases added). Thus,
with the exception of attempted first and second degree murder,
and first and second degree murder, HRS § 706-610(1) reaffirms
that all other felonies fall into one of three classes -- Class
A, B, or C.
HRS § 707-701.5 (2014), "Murder in the second degree,"
provides that second degree murder "is a felony for which
defendant shall be sentenced to imprisonment as provided in
section 706-656." The ordinary, un-enhanced sentence for second
degree murder and attempted second degree murder is life with
parole, under HRS § 706-656(2).30 The identical sentence for
29
(...continued)
indeterminate life term of imprisonment." The pertinent portion of the HRS §
705-502 Commentary upon which Lafoga relies, states:
[T]here is generally no difference in the sanctions which
ought to be available to the court when a crime is attempted
but not consummated. However, where the offense attempted
is murder, the unique sentence authorized for that crime is
not imposed. Instead, the attempt is treated as any other
class A felony. Because § 706-606 requires mandatory
imprisonment, possibly for life, there is room to economize
on sentencing for attempted murder. The various modes of
disposition available for a class A felony ought to suffice
for correctional needs.
(Emphasis added).
We reject Lafoga's argument for two reasons. First, HRS § 705-502
has not been amended since 1972, nor has its commentary been updated. The
Commentary refers to an old murder statute, HRS § 706-606, which was
substantially amended in 1986, removing the section entitled "Sentence for
offense of murder," and replacing it with "Factors to be considered in
imposing a sentence." See 1986 Haw. Sess. Laws Act 314, § 15 at 599-600.
Second, the Commentary is also inaccurate because it says attempted murder is
"treated as any other class A felony," when this is no longer true. HRS §
706-656 clearly provides that for both first and second degree murder, the
attempts carry the same penalty as the substantive offense. Subsection (1) of
HRS § 706-656 provides that adults "convicted of first degree murder or first
degree attempted murder shall be sentenced to life imprisonment without the
possibility of parole." Subsection (2) provides that "persons convicted of
second degree murder and attempted second degree murder shall be sentenced to
life imprisonment with possibility of parole." Therefore, Lafoga's reliance
on obsolete language in the Commentary to HRS § 705-502 is misplaced.
30
HRS § 706-656 (2014), "Terms of imprisonment for first
and second degree murder and attempted first and second degree murder,"
(continued...)
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both the substantive offense and the attempt offense is
consistent with HRS § 705-502, where attempts are treated as the
same grade of offense as the substantive offense. Considering
HRS §§ 705-502 (grading of attempt), 706-656(2) (ordinary
sentence for attempted second degree murder), and 706-661(1) in
pari materia, we conclude that the extended sentence under HRS §
706-661(1) applies for both second degree murder and attempted
second degree murder. See HRS § 1-16.
Our consideration of HRS §§ 701-107 (specifying
attempted second degree murder as a felony that is not Class A,
B, or C) and 706-610 (excluding attempted second degree murder
from Class A, B, or C felonies) in pari materia to HRS § 706-661,
reinforces our conclusion that the subsection (1) category of
"murder in the second degree -- life without the possibility of
parole" includes attempted second degree murder. Because
attempted second degree murder is a felony that is not a Class A,
B, or C felony under HRS § 701-107, the HRS § 706-661 subsections
(2), (3), and (4) categories pertaining to Class A, B, and C
felonies clearly do not apply. Therefore, the attempted second
degree murder offense is logically categorized in subsection (1)
of HRS § 706-661, with the substantive offense of second degree
murder.
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." In re
Doe, 90 Hawai#i 246, 251, 978 P.2d 684, 689 (1999) (internal
citations, brackets and quotation marks omitted). The Circuit
Court reasoned that it would be an "absurdity" to exclude the
"serious offenses" of attempted second degree murder for Lafoga
30
(...continued)
specifies the sentence for second degree murder in subsection (2): "Except as
provided in section 706-657, pertaining to enhanced sentence for second degree
murder, persons convicted of second degree murder and attempted second degree
murder shall be sentenced to life imprisonment with possibility of parole. . .
." (Emphasis added).
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and accomplice to attempted second degree murder for Ines from
extended term sentencing -- reasoning that the omission of
attempted second degree murder from HRS § 706-661(1) could not
have been purposeful "when the premise of extended terms are for
the protection of the public." We agree. It would be
inconsistent for HRS § 706-661 to exclude only the felony of
attempted second degree murder from extended sentencing, where
lower classes of A, B, and C felonies, including attempts, are
all subject to extended sentencing. See id. Similarly, it would
be illogical for attempted second degree murder to qualify as a
predicate felony to meet the HRS § 706-66231 "persistent
31
HRS § 706-661 refers to HRS § 706-662 (2014), which sets forth the
"Criteria for extended terms of imprisonment," as follows:
A defendant who has been convicted of a felony may be
subject to an extended term of imprisonment under section
706-661 if it is proven beyond a reasonable doubt that an
extended term of imprisonment is necessary for the
protection of the public and that the convicted defendant
satisfies one or more of the following criteria:
(1) The defendant is a persistent offender in that
the defendant has previously been convicted of
two or more felonies committed at different
times when the defendant was eighteen years of
age or older;
(2) The defendant is a professional criminal in
that:
[(setting forth criteria)] . . . ;
(3) The defendant is a dangerous person . . . ;
[(setting forth criteria)] . . . ;
(4) The defendant is a multiple offender in that:
(a) The defendant is being sentenced for two
or more felonies or is already under
sentence of imprisonment for any felony;
or
(b) The maximum terms of imprisonment
authorized for each of the defendant's
crimes, if made to run consecutively,
would equal or exceed in length the
maximum of the extended term imposed or
would equal or exceed forty years if the
extended term imposed is for a class A
felony;
(5) The defendant is an offender against the
elderly, handicapped, or a minor eight years of
(continued...)
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offender" or "multiple offender" criteria for extended
sentencing, yet not qualify for extended terms sentencing under
HRS § 706-661(1) as a substantive offense. See id. Finally, as
the Circuit Court observed, because the whole premise of extended
sentencing is that an extended term of imprisonment beyond the
ordinary maximum sentence "is necessary for the protection of the
public," it would be unreasonable for attempted second degree
murder, one of the most serious offenses under the Code
punishable by a life sentence, to be excluded. HRS § 706-662;
see HRS § 706-661; Doe, 90 Hawai#i at 251, 978 P.2d at 689.
Lafoga was sentenced under HRS § 706-662 (1) and (4)(a)
as both a persistent and multiple offender based on his prior
felony convictions and the instant attempted second degree murder
conviction, and the jury's finding that an extended term was
necessary for the protection of the public. Lafoga's other
convictions for Count 4 (Use of Firearm in Separate Felony), and
Count 8 (Felon in Possession) were also extended based on the
jury's findings. It would not make sense for the less serious
offenses in Counts 4 and 8 to be extended, and not Lafoga's
sentence for attempted second degree murder in Count 2. See Doe,
90 Hawai#i at 251, 978 P.2d at 689.
Likewise, Ines was sentenced under HRS § 706-662(1) as
a persistent offender based on his prior convictions and the
jury's finding that an extended term was necessary for the
protection of the public. It would not make sense to read HRS §
706-661(1) to preclude extended sentencing for Ines, for the
accomplice to attempted second degree murder offense. See id.
31
(...continued)
age or younger in that:
[(setting forth criteria)]
(6) The defendant is a hate crime offender in that:
[(setting forth criteria)]
. . . .
(Emphases added).
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We conclude that the Circuit Court did not err in
sentencing both defendants to extended terms under HRS § 706-
661(1) for their convictions for attempted second degree murder
for Lafoga, and accomplice to attempted second degree murder for
Ines.
IV. CONCLUSION
For the foregoing reasons, we affirm Lafoga's February
20, 2020 Judgment of Conviction and Sentence, Notice of Entry;
and Ines's September 2, 2020 Amended Judgment of Conviction and
Sentence, Notice of Entry; both filed by the Circuit Court of the
First Circuit.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
William K. Li
for Defendant-Appellant /s/ Katherine G. Leonard
Brandon Fetu Lafoga Associate Judge
Kai Lawrence /s/ Karen T. Nakasone
for Defendant-Appellant Associate Judge
Ranier Ines
Stephen K. Tsushima
Deputy Prosecuting Attorney
for Plaintiff-Appellee
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