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Electronically Filed
Supreme Court
SCAP-30420
13-APR-2012
11:09 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
PULUMATA#ALA ELI, Petitioner/Defendant-Appellant.
NO. SCAP-30420
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(ICA NO. 30420; FC-CR NO. 07-1-0066)
April 13, 2012
ACOBA, DUFFY, AND MCKENNA, JJ.; WITH RECKTENWALD, C.J. CONCURRING
AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS; AND WITH NAKAYAMA,
J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY ACOBA, J.
We hold in this case that after arrest the police
practice of inviting an arrestee to make a statement and to give
his or her “side of the story” or similar entreaties in a “pre-
interview” before Miranda warnings are given, violates the
defendant’s right against self-incrimination, article I, section
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10,1 and right to due process, article I, section 52 of the
Hawai#i Constitution. Further, we hold that under the
circumstances of this case the Mirandized statement offered into
evidence at trial resulted from the exploitation of the said pre-
interview practice. The Miranda warnings subsequently given did
not remove the “taint” of such practice. Accordingly, on the
grounds set forth herein, we vacate the March 4, 2010 judgment of
conviction and sentence filed by the circuit court of the first
circuit (the court)3 adjudging Petitioner/Defendant-Appellant
Pulumata#ala Eli (Defendant) guilty of attempted manslaughter, and
remand for a new trial.
I.
The following essential matters, some verbatim, are
from the record and the submissions of the parties.
1
Haw. Const. art I, § 10 provides:
No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a
grand jury or upon a finding of probable cause after a
preliminary hearing held as provided by law or upon
information in writing signed by a legal prosecuting officer
under conditions and in accordance with procedures that the
legislature may provide, except in cases arising in the
armed forces when in actual service in time of war or public
danger; nor shall any person be subject for the same offense
to be twice put in jeopardy; nor shall any person be
compelled in any criminal case to be a witness against
oneself.
2
Haw. Const. art I, § 5 provides:
No person shall be deprived of life, liberty or property
without due process of law, nor be denied the equal
protection of the laws, nor be denied the enjoyment of the
person's civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.
3
The Honorable Randal K.O. Lee presided.
2
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Defendant was arrested on October 27, 2007, for
assaulting and seriously injuring his seven-month-old daughter on
October 24, 2007, while inside a minivan at Ala Moana Beach Park.
He was transported to the police station, where he gave a
statement about the incident. He was indicted on October 31,
2007, by Respondent/Plaintiff-Appellee State of Hawai#i (the
prosecution or the State) for attempted murder in the second
degree, with the special circumstance that his daughter was eight
years of age or younger, Hawai#i Revised Statutes (HRS) §§ 705-500
(1993),4 707-701.5 (1993),5 and 706-656 (Supp. 2007).6
4
HRS § 705-500 provides in its entirety as follows.
§ 705-500. Criminal attempt. (1) A person is guilty of an
attempt to commit a crime if the person:
(a) Intentionally engages in conduct which
would constitute the crime if the
attendant circumstances were as the person
believes them to be; or
(b) Intentionally engages in conduct which,
under the circumstances as the person
believes them to be, constitutes a
substantial step in a course of conduct
intended to culminate in the person’s
commission of the crime.
(2) When causing a particular result is an element
of the crime, a person is guilty of an attempt to commit the
crime if, acting with the state of mind required to
establish liability with respect to the attendant
circumstances specified in the definition of the crime, the
person intentionally engages in conduct which is a
substantial step in a course of conduct intended or known to
cause such a result.
(3) Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative of
the defendant’s criminal intent.
5
HRS § 707-701.5 provides in its entirety as follows.
§ 707-701.5. Murder in the second degree. (1)
Except as provided in section 707-701, a person commits the
offense of murder in the second degree if the person
intentionally or knowingly causes the death of another
person.
(2) Murder in the second degree is a felony for which
the defendant shall be sentenced to imprisonment as provided
3
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On June 9, 2009, the prosecution filed a “Motion to
Determine Voluntariness of Defendant’s Statement,” so that
Defendant’s statement could be used at trial. The prosecution’s
motion stated, inter alia, that “[a] defendant’s statement may
not be received into evidence until the prosecution shows that
the defendant was warned of his Miranda rights, that the
defendant waived these rights, and that the statement was
voluntarily made.” (Citing State v. Kreps, 4 Haw. App. 72, 76-
77, 661 P.2d 711, 714-15 (1983).)7 A hearing was held on June 12,
2009, in which the interviewing Detective (Detective) of the
Honolulu Police Department (HPD) testified, as follows, about the
circumstances in which Defendant gave his statement.
Defendant had agreed to turn himself in on October 26,
2007, but, instead of doing so, left a message with Detective,
stating that he would turn himself in the next afternoon at
in section 706-656.
6
HRS § 706-656 provides in relevant part as follows.
§ 706-656. Terms of imprisonment for first and second
degree murder and attempted first and second degree murder.
. . . .
(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. The minimum length of imprisonment
shall be determined by the Hawaii paroling authority;
provided that persons who are repeat offenders under section
706-606.5 shall serve at least the applicable mandatory
minimum term of imprisonment.
7
Defendant did not file a motion to suppress the statement.
4
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Kapiolani Hospital.8 Defendant was met at the hospital the next
day by the police, arrested, and brought to the main police
station.
At the station, Detective met Defendant in an interview
room at the central receiving desk and explained to him that he
was under arrest for assaulting his daughter. Detective
testified that during this encounter he asked Defendant if he
wanted to give a statement and “may have mentioned to him that,
you know, it’s a chance to give me his side of the story.”
Detective stated that he did not imply to Defendant that by
hearing his side of the story things might change. Apparently,
Defendant agreed to make a statement at this point.
Detective then activated his tape recorder and used an
HPD-81 form to advise Defendant of his constitutional rights.
Defendant had a copy of the form in front of him as Detective
read it out loud. Detective testified that he informed Defendant
of his right to remain silent, his right to terminate the
interview at any time, his right to stop answering questions, his
right to an attorney, his right to have an attorney appointed by
the court if he could not afford one, his right to consult with
an attorney and have an attorney present during the questioning,
and that anything he said could be used against him at trial.
According to Detective’s testimony, Defendant responded to the
8
Defendant’s daughter was apparently hospitalized at Kapiolani
Hospital.
5
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questions asked and did not seem to have any problem
understanding what was occurring. Detective stated that he asked
Defendant if he wanted an attorney, to which Defendant responded,
“No, not now[.]” Defendant filled out the HPD-81 form and waived
his Miranda rights.
Detective then began questioning Defendant, and
obtained a taped statement from Defendant. In the taped
statement, Defendant told Detective that on the day of the
incident, he had been “trying to work things out” with his
girlfriend in their minivan at Ala Moana Beach Park. Defendant
said he was frustrated at the time, and that his daughter, who
was sitting in the back seat, would not stop crying. He stated
that he hit his daughter on the feet and slapped her on the head
four times. Defendant then told Detective that he took his
daughter out of her car seat and dropped her by accident. He
subsequently admitted to throwing his daughter on the car seat
“[f]ace first” two times.
After hearing Detective’s testimony, the court
determined Defendant’s statement was “voluntarily, intelligently,
and knowingly made,” rendering Defendant’s statement admissible
at trial. Following the voluntariness hearing, Defendant’s jury
trial began.
On June 19, 2009, during the proceedings, defense
counsel notified the court that there was a second HPD-81 form
completed on October 28, 2007, the day after Detective first
6
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interviewed Defendant, in which Defendant refused to waive his
Miranda rights.9 Defense counsel asked the deputy prosecuting
attorney (DPA) for a recording of the event on October 28, 2007,
but the DPA informed defense counsel that no recording existed.
The court excused the jury and held a hearing to allow defense
counsel to question Detective, in court, about the second HPD-81
form.
Detective again testified that, on October 27, 2007,
prior to obtaining the taped statement referred to supra, he had
a conversation with Defendant before giving Defendant his Miranda
warnings. During that conversation, “[Detective] asked
[Defendant] if he wanted to give [Detective] a statement[,]” and
Defendant “agreed to give [Detective] a statement[.]” When asked
by Defendant’s counsel, “But the whole purpose of giving the
Miranda warning is so that he can decide whether he wants to give
you a statement or not[,]” Detective replied that he “didn’t ask
[Defendant] any questions about the case.” Detective
acknowledged that on October 27 he had explained to Defendant
that it was “[Defendant’s] chance to give his side of the story.”
Also, Detective agreed he had obtained “a waiver”
before administering the Miranda warnings. The relevant
testimony is as follows:
[DEFENSE COUNSEL:] Did you have any conversation with
9
Defense counsel appears to have had received the HPD-81 form in
discovery, but “didn’t pick up on the fact” that it was a different one from
that which Defendant had filled out on October 27, 2007.
7
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[Defendant] prior to turning on the tape recorder on the
statement that you took between 1825 hours to 1900 hours on
the 27th or did you ask him whether he was willing to give a
statement before you turned on the tape recorder?
[DETECTIVE:] Yes. Yes.
[DEFENSE COUNSEL:] And he said yes?
[DETECTIVE:] Yes, he was willing to give a statement.
[DEFENSE COUNSEL:] Why do you not tape that part of this?
So he agreed basically prior to the time you ever warned him
of his right to remain silent.
[DETECTIVE:] He agreed to give me a statement when I asked
him if he wanted to give me a statement after I informed him
why he was here, why he was under arrest.
[DEFENSE COUNSEL:] But the whole purpose of giving the
Miranda warning is so that he can decide whether he wants to
give you a statement or not.
[DETECTIVE:] I didn’t ask him any questions about the case.
[DEFENSE COUNSEL:] Now, let’s go back to the night before.
You got him to agree to give you a statement before you ever
gave him the warnings of his right to remain silent?
[DETECTIVE:] I asked him if he wanted to give a statement.
It’s his chance to give his side of the story.
[DEFENSE COUNSEL:] Is that what you told him?
[DETECTIVE:] Yes, I think -- I believe so.
[DEFENSE COUNSEL:] And so at that time you gave him the
Miranda warnings, you had already got an answer out of him,
a waiver that he was going to give a statement?
[DETECTIVE:] Yes.
(Emphases added.)
Detective stated that subsequently, on October 28,
2007, he saw Defendant about injuries discovered on his daughter.
“Prior to any questioning” and without activating his tape
recorder, Detective advised Defendant of his Miranda rights. At
that point, Defendant “elected not to give a statement.”
Defendant then executed an HPD-81 form reflecting his refusal to
answer any questions. Although Detective also testified that it
is HPD standard procedure to tape record the Miranda warnings
given to suspects in a felony investigation, he did not tape
record the October 28 “follow-up interview” because he had “asked
[Defendant] if he was willing to give . . . a statement[,]” and
“[Defendant] elected not to give a statement.”
8
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After Detective testified, Defendant moved to exclude
the October 27 Miranda statement on the ground that Detective
“obtained the waiver of his right to remain silent prior to
giving the Miranda warning[,]” and moved for a mistrial, arguing
that this evidence had not been disclosed. According to
Defendant, Detective “obtained [Defendant’s] waiver of [his]
right to remain silent without ever providing Miranda
warnings[,]” and that mandated that the October 27 statements be
suppressed.
In Defendant’s view, “the whole purpose of giving the
Miranda warning[s is] so that [the defendant] can decide whether
he wants to give . . . a statement[.]” Thus, according to
Defendant, a waiver of silence before being apprised of the
Miranda rights cannot be a knowing and voluntary waiver of the
right to remain silent. The court denied Defendant’s motion for
exclusion of the evidence and for a mistrial, determining that
“[D]efendant knew he could make a statement or not make a
statement[,]” and the court had “already determined that the
statement was made voluntarily.”
On June 22, 2009, before Defendant’s taped statement
was played to the jury, Defendant again moved to suppress the
October 27 statement and moved for a mistrial. According to
defense counsel, the Miranda warning could not “undo the taint”
of the pre-Miranda waiver because Detective “got the mind set of
[D]efendant . . . to talk rather than not to talk.” These
9
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motions were denied in the following ruling by the court:
[Defendant] clearly understood he was arrested for a crime.
The detective identified himself, indicated why he was
talking to the defendant, namely, he was arrested, and
merely asked, would you like to tell me your side of the
story? . . . [T]his was not securing a waiver of . . . his
Miranda [rights], but merely asking the defendant whether or
not he wanted to make a statement or not.
(Emphasis added). The taped recording of Defendant’s statement
was then played to the jury.
On June 30, 2009, the court issued its “Findings of
Fact, Conclusions of Law, and Order Finding Voluntariness of
Defendant’s Statement.” The court made the following relevant
findings:
3. Based on the police investigation, Detective
arranged to have [Defendant] surrender himself to [HPD] on
October 26, 2007.
4. On October 26, 2007, [Defendant] failed to appear
as scheduled and instead, left a phone message to the
detective indicating that he would turn himself in on
October 27, 2007.
5. On October 27, 2007, [Defendant] was arrested by
[HPD] . . . and transported to the main police station.
6. [Defendant] was met by [Detective] who identified
himself, informed [Defendant] that he was arrested for the
assault on his seven-month-old daughter, . . . and may have
asked [Defendant] whether he would like to speak to him and
tell his side of the story.
7. [Detective] testified that [Defendant] stated that
he wanted to speak to him and that he brought [Defendant] to
an interview room[.]
. . . .
11. [Detective] proceeded to warn [Defendant] of his
Miranda rights using HPD 81 form.
The court made the following relevant conclusions:
2. [Defendant] claims that the statement was not
voluntarily, intelligently or knowingly made since
[Detective] failed to read [Defendant] his constitutional
rights under Miranda prior to asking [Defendant] whether he
would like to speak to him and tell him his side of the
story.
. . . .
5. . . . [A]n individual being subjected to custodial
interrogation must not be asked any questions without being given
Miranda warnings. . . .
. . . .
10
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8. The test to determine if a custodial interrogation
has taken place, for purposes of determining whether Miranda
warnings are required, is whether the investigating officer
should have known that his or her words or conduct were
reasonably likely to evoke an incriminating response. . . .
. . . .
11. Here, [Defendant] contends that his statement to
[Detective] was involuntarily made and should not be allowed
into evidence. Specifically, [Defendant] claims that,
[Detective]’s failure to advise [Defendant] of his
constitutional rights under Miranda prior to asking
[Defendant] if he wanted to speak to him and tell his side
of the story, rendered the recorded statement inadmissible.
12. In State v. Luton, 83 [Hawai#i] 443, 927 P.2d 844
(1996), the Hawai#i Supreme Court addressed a similar type
of issue presented in this case.
13. In Luton,[], the defendant waived his
constitutional rights under Miranda, and made a statement to
the police after the detective advised the defendant that it
would be in his best interest to give a statement.
14. Following the reasoning in State v. Kelekolio, 74
Haw. 479, 849 P.2d 58 (1993), and Commonwealth v. Meehan, .
. . 387 N.E.2d 527 (Mass. 1979), the Hawaii Supreme Court in
Kelekolio, [74 Haw. at 505, 849 P.2d at 70,] found that the
“‘[m]ere advice from the police that it would be better for
the accused to tell the truth when unaccompanied by either a
threat or a promise does not render a subsequent confession
involuntary.’” [(quoting State v. Amaya-Ruiz, 800 P.2d
1260, 1273 (Ariz. 1990)].
15. Finding that there were no coercive threats,
promises used to extract a confession from the defendant,
the Hawaii Supreme Court held that the statements made by
the defendant were not obtained in violation of the
defendant’s constitutional rights.
16. Applying the reasoning expressed in Luton, [] to
the evidence in this case, the [c]ourt finds and concludes
that [Detective]’s statement where he asked [Defendant] if
he wanted to speak to him and tell his side of the story did
not rise to the level of advising, threatening and/or
promising the Defendant anything in order to obtain his
statement.
. . . .
18. The [c]ourt finds and concludes that [Detective]
never asked [Defendant] anything about the alleged offense
and his conduct was not designed to elicit a spontaneous
incriminating statement from [Defendant].
19. The [c]ourt finds that [Detective]’s conduct was
preliminary in nature and was made merely to inform
[Defendant] why he was arrested, identify himself and
explain why he was meeting with [Defendant]. Obviously,
since [Defendant] and his girlfriend . . . were the only two
people in the van that could possibly have injured the
infant, [Detective] merely asked [Defendant] if he wanted to
speak to him about the events surrounding the alleged crime.
[Detective] never advised [Defendant] that he should make a
statement, never coerced, threatened or promised [Defendant]
anything for his statement and [Defendant] could have chosen
not to make a statement.
. . . .
23. [Defendant] was read his Miranda rights through
the use of a HPD 81 form, he initial [sic] each statement on
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the HPD 81 form indicating that his rights were explained to
him, he understood his rights, and that he elected to waive
his rights and make a statement. [Defendant] indicated he
understood his rights, did not want an attorney, and wanted
to tell [Detective] what happened.
24. The [c]ourt further finds and concludes that
since [Defendant] had effectively waived his constitutional
rights, his statements were made voluntarily, intelligently,
and knowingly.
(Some emphasis in original and some emphasis added.)
The jury found Defendant guilty of attempted
manslaughter. The jury also answered affirmatively two special
interrogatories inquiring whether it found Defendant inflicted
serious bodily injury on a person eight years or younger, and
whether Defendant knew or should have known that the person was
eight years or younger. An amended judgment of conviction and
sentence was entered on March 4, 2010.
II.
Notice of appeal to the ICA was filed by Defendant on
April 5, 2010. Defendant filed his opening brief on November 30,
2010. In connection with Defendant’s statement to Detective, the
following point of error was raised:
A. The. . . court committed prejudicial error by
ignoring the suppression of the Miranda
violation, by refusing to allow further
proceedings on voluntariness,[ 10] and by denying
10
Defendant maintains that the court “refus[ed]” to allow further
proceedings on voluntariness. However, neither Defendant nor the prosecution
point to where in the record Defendant asked for further proceedings on
voluntariness, or argued that the court should conduct additional proceedings.
A review of the record indicates that Defendant did not seek further
proceedings, but argued that the October 27 statement should have been
suppressed due to a Miranda violation, and moved for a mistrial. Additionally,
the opening brief focuses on the court’s error as denying suppression, and,
other than the question, does not address any refusal by the court to conduct
additional proceedings. Insofar as Defendant did not object to the failure to
conduct further proceedings, and Defendant does not argue in his opening brief
that the court’s refusal to allow further proceedings on voluntariness was
error, this assertion is not addressed further.
12
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a mistrial.[ 11]
(Capitalizations ommitted.)
On March 14, 2011, Defendant applied for mandatory and
discretionary transfer of his appeal from the ICA to this court.
Transfer was accepted on April 15, 2011.
III.
In connection with the first point of error,12
Defendant contends that his statement to Detective must be
excluded because (1) it was obtained after an unrecorded waiver
when recording was feasible, and (2) he was subjected to
interrogation during a “pre-interview” without being advised of
his Miranda rights.13 The prosecution answers that Defendant’s
statement is admissible because it was knowingly, intelligently,
and voluntarily made, as concluded by the court.
In relation to his first contention, Defendant argues
(1) that Detective was required by (a) State v. Kekona, 77
11
Although the denial of a mistrial is one of Defendant’s stated
points of error, Defendant does not directly support it in his argument.
Instead, Defendant makes the contentions set out in the analysis provided
herein.
12
Defendant raised three other questions with respect to his
extended term sentence. The disposition herein moots those questions.
13
Defendant also contends, in the argument section of the opening
brief, that Defendant was denied a full and fair hearing due to “prosecutorial
misconduct[.] He appears to refer to the prosecution’s purportedly
“questionable compliance” with Hawai#i Rules of Penal Procedure (HRPP) Rule 16
(2007), and Detective’s purported “evasive” answers to Defendant’s questions
during the June 12 hearing. To the extent that Defendant refers to the
October 28 HPD form in connection with any HRPP Rule 16 violation, Defendant’s
counsel stated that he had received the HPD form in discovery, but did not
recognize that it was different from the one Defendant filled out on October
27. Thus, it is unclear how the prosecution “questionabl[y]] compli[ed]” with
HRPP Rule 16. As to Detective’s purported “evasive” answers, inasmuch as a
finding of “evasiveness” or credibility is not for this court to make, this
argument is not addressed further.
13
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Hawai#i 403, 886 P.2d 740 (1994), and (b) HPD policy, to record
the encounter with Defendant on October 27, 2007 through which he
allegedly obtained an unrecorded waiver of Defendant’s
constitutional rights, and (2) that as a matter of public policy,
any statements obtained after an unrecorded waiver should be per
se inadmissible where recording was feasible.
Defendant relies on Kekona to argue that recording of
custodial interrogations is required by due process. Kekona held
that the due process clause of the Hawai#i Constitution does not
require the recording of custodial interrogations. Id. at 408-
09, 886 P.2d at 745-46. This court stated that “whether the
failure of the police to create a record of the defendant’s
confession undermines its accuracy and detracts from the
credibility of later testimony is an issue uniquely left to the
sound discretion of the trier of fact.” Id. at 409, 886 P.2d at
746. In the present case, the court did not find that
Detective’s failure to record his pre-Miranda conversation with
Defendant undermined the accuracy of Defendant’s statement or
detracted from the credibility of later testimony.
In light of Kekona, we must reject Defendant’s
assertion that a violation of the HPD policy on recording renders
a statement inadmissible14 and that this court should, as a
matter of public policy, exclude statements obtained after an
14
The specific HPD policy on recording is not reproduced by the
parties or reflected in the record.
14
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unrecorded waiver. As noted in Kekona, defendants have the
opportunity to cross-examine the police officers who conducted
their interrogations, and to set forth their own account of
events through testimony. Id. After utilizing these tools,
“[i]t is for the trial judge as fact-finder to assess the
credibility of witnesses and to resolve all questions of fact.”
State v. Eastman, 81 Hawai#i 131, 139, 913 P.2d 57, 65 (1996)
(citing Lono v. State, 63 Haw. 470, 473, 629 P.2d 630, 633
(1981)). Kekona also concluded that even if this court were to
adopt an exclusionary rule for statements obtained after an
unrecorded waiver, the problems with reliability and deception
asserted by Defendant would not be resolved.15
IV.
In connection with his second contention, Defendant
argues that his statement must be excluded because he was
questioned prior to being advised of his Miranda rights.
Defendant maintains that without being so advised, it cannot be
determined whether Defendant’s initial agreement to make a
statement was knowing, therefore tainting his subsequent
15
This court stated in Kekona:
[E]ven if we were to hold that the due process clause
mandates the recording of station house interrogations,
there would still be a “hush all over the [state] tonight.”
This time, however, the silence in the station houses would
come from the new police policy of conducting all
interrogations out in the field where, the minority
apparently concedes, the due process clause does not require
that interrogations be recorded.
77 Hawai#i at 409, 886 P.2d at 746 (emphasis in original).
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Mirandized statement. According to Defendant, Detective
bifurcated his interrogations, “effecting a pre-Miranda and then
a post-Miranda process of interrogation[,]” which constitutes
“evasive pre-interviews recently condemned in State v. Joseph,
109 Hawai#i 482, 128 P.3d 795 (2006).”
A.
Article I, section 10 of the Hawai#i Constitution
provides that “[n]o person shall . . . be compelled in any
criminal case to be a witness against himself.” State v. Pau#u,
72 Haw. 505, 509, 824 P.2d 833, 835 (1992) (quoting article 1,
section 10). It is established that “[w]hen a confession or
other evidence is obtained in violation of [this right], the
prosecution will not be permitted to use it to secure a
defendant’s criminal conviction.” Id. (citing State v. Russo, 67
Haw. 126, 681 P.2d 553 (1984)).
In State v. Santiago, 53 Hawai#i 254, 266, 492 P.2d
657, 664 (1971), this court held that “the protections which the
United States Supreme Court enumerated in Miranda have an
independent source in the Hawai#i Constitution’s privilege
against self incrimination.”16 Article I, section 10 of the
16
As the United States Supreme Court has said, “[u]nder [Michigan v.
Long, 463 U.S. 1032 (1983)], state courts are absolutely free to interpret
state constitutional provisions to accord greater protection to individual
rights than do similar provisions of the United States Constitution.” Arizona
v. Evans, 514 U.S. 1, 8 (1995). “If a state court chooses merely to rely on
federal precedents as it would on the precedents of all other jurisdictions,
then it need only make clear by a plain statement in its judgment or opinion
that the federal cases are being used only for the purpose of guidance, and do
not themselves compel the result that the court has reached.” Long, 436 U.S.
at 1041. Thus, “[i]f the state court decision indicates clearly and expressly
that it is alternatively based on bona fide separate, adequate, and
16
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Hawai#i Constitution requires that,
before reference is made at trial to statements made by the
accused during custodial interrogation, the prosecutor must
first demonstrate that certain safeguards were taken before
the accused was questioned. . . . [T]he prosecutor must
show that each accused was warned that he had a right to
remain silent, that anything said could be used against him,
that he had a right to the presence of an attorney, and that
if he could no[t] afford an attorney one would be appointed
for him.
Id. (emphasis added). Thus, under article I, section 10, the
Miranda rule, “a constitutionally prescribed rule of evidence[,]”
“requires the prosecution to lay a sufficient foundation” being
“that the requisite warnings were administered and validly
waived” “before it may adduce evidence of a defendant's custodial
statements that stem from interrogation during his or her
criminal trial.” State v. Ketchum, 97 Hawai#i 107, 117, 34 P.3d
1006, 1016 (2001).17 If there has been a Miranda violation,
“statements made by the accused may not be used either as direct
evidence . . . or to impeach the defendant’s credibility during
independent grounds, [the decision will not be reviewed by the Court.]” Id.
The decision in this case rests on “bona fide separate, adequate, and
independent state [constitutional] grounds.” See id. Federal law is being
used only for the purpose of guidance, and does not compel the result that
this court has reached. See id. Rather, the Hawai#i Constitution and the
case law thereunder are the bases for this decision.
17
It must be emphasized that the Miranda requirement, based on
article 1, section 10 of the Hawai#i Constitution, requires warnings to be
given prior to questioning in a custodial setting, while constitutional due
process, based on article 1, section 5 of the Hawai#i Constitution, requires a
statement to be “voluntary” in order to be admissible. See Ketchum, 97
Hawai#i at 117 n.18, 34 P.3d at 1016 n.18. “Put differently, if a defendant's
Miranda rights against self-incrimination have been violated, then any
resulting statement will be inadmissible at trial as a per se matter,
obviating the need for any [voluntary] due process inquiry into whether the
defendant’s confession has been coerced[.]” State v. Naititi, 104 Hawai#i
224, 237, 87 P.3d 893, 906 (2004). “Correlatively, having been properly
Mirandized, if a defendant who is subjected to custodial interrogation makes a
statement, then, depending on the circumstances, an inquiry into whether the
defendant’s right to due process of law has been violated via coercion, . . .
may be warranted.” Id.
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rebuttal or cross-examination.” Id. at 116, 34 P.3d at 1015.
Indeed, “[i]t is a fundamental tenet of criminal law that ‘the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.’”
State v. Wallace, 105 Hawai#i 131, 137, 94 P.3d 1275, 1281 (2004)
(quoting Naititi, 104 Hawai#i at 235, 87 P.3d at 904).
Therefore, absent Miranda warnings, any statements made in the
course of custodial interrogation without a valid waiver are
inadmissible at trial. Id.
To reiterate, Defendant argued before the court that
Defendant’s October 27 Mirandized statement must be suppressed
because Defendant’s agreement to make that statement was obtained
after Detective’s inquiry but before any Miranda warnings were
given. In evaluating Defendant’s Miranda claim, however, the
court determined that Detective’s pre-Miranda question was
“preliminary” and “was not designed to elicit a spontaneous
incriminating statement” from Defendant. It appears that the
court was wrong, as explained infra, and, thus, Miranda warnings
were required before Detective asked Defendant if he wanted to
relate his side of the story.
B.
Under Miranda, warnings must be provided when a
defendant is (1) in custody, and (2) under interrogation. State
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v. Ah Loo, 94 Hawai#i 207, 210, 10 P.3d 728, 731 (2000). At the
outset, it must be noted that the court erred in characterizing
Detective’s question and statement as “preliminary” in
determining that Defendant’s statement was admissible.18 Whether
a question is or is not “preliminary” is not determinative of
whether Miranda warnings were required. Cf. Naititi, 104 Hawai#i
at 237, 87 P.3d at 906 (noting that, “[b]y no stretch of the
imagination could . . . preliminary ‘yes-or-no’” questions of
whether the defendant wished to make a statement and be afforded
the assistance of an attorney be construed as the type that were
“reasonably likely to elicit an incriminating response”);19 See
18
To reiterate, the court determined that “[Detective]’s conduct was
preliminary in nature and was made merely to inform [] Defendant that he was
arrested, identify himself and explain why he was meeting with [] Defendant.”
The court did not support its statement with any case law, and did not explain
how, or why, a statement responding to a “preliminary” question, if that
question constituted interrogation, is admissible in the absence of Miranda
warnings.
19
In Naititi, the defendant, who was deaf and mute, was taken to an
interview room and an interpreter was provided. The interpreter testified
that, before the defendant was asked any questions, in sign language, the
defendant stated that he was “sorry”. The interpreter testified that when the
detective told the defendant that he was going to ask the defendant some
questions, and explained that the defendant had a right to a lawyer, the
defendant “continued to talk as if he just was not responding to what . . .
the detective was saying to him.” Naititi, 104 Hawai#i at 228, 87 P.3d at 897
(emphasis added). The interpreter explained that the defendant “did not
understand [the interpreter’s] gestures and signs and that [the defendant] was
definitely not responsive.” Id. at 228, 87 P.2d at 897. The detective
stopped the interview. This court determined that the defendant’s statements
were “volunteered[.]” Id. at 238, 87 P.2d at 907 (emphasis added). According
to this court, if the defendant could not understand the questions posed to
him, then he could not have intended his statements to be responsive to them.
Id. at 238, 87 P.2d at 907.
In contrast to Naititi, in the instant case, asking Defendant if
he wanted to give a statement was combined with Detective’s explanation that
in doing so it was Defendant’s chance to give his side of the story and that
in doing so the detective obtained “a waiver” for the Mirandized statement
before the Miranda warnings were given. This could not be considered anything
but interrogation, and objectively was designed to elicit an incriminating
response from Defendant after his arrest, i.e., an explanation of his side of
the story with respect to the incident. Furthermore, Defendant’s statements
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Ketchum, 97 Hawai#i at 121 n.21, 34 P.3d at 1020 n.21 (declining
to adopt, as an exception to the required warnings, that if an
officer expressly asks an arrestee for biographical data, the
arrestee’s response is not suppressable, and instead noting that
the better rule is “requiring police to preface all interrogation
of a suspect with Miranda warnings if they want his or her
responses to be admissible at trial”) (internal quotation marks
and citation omitted) (emphasis added). If a defendant was in
custody and subjected to interrogation without having been
advised of his Miranda rights, statements from that person “are
inadmissible in a subsequent criminal proceeding brought against
that person.” Joseph, 109 Hawai#i at 498, 128 P.3d at 811. Thus,
in the instant case, the issue is whether Defendant was in
custody and whether the question and statement constituted
interrogation. See State v. Amorin, 61 Haw. 356, 362, 604 P.2d
45, 49 (1979) (“[B]efore any questions are asked of an in-custody
suspect, the required warnings must be given and unless and until
such warnings are proven by the prosecution, no statements
obtained as a result of custodial interrogation may be used.”).
V.
A.
As to custody, it has been established that this
element is satisfied if the defendant has been “taken into
were not unresponsive or “volunteered[,]” id. insofar as they were given in
direct response to Detective’s questions, and Defendant clearly understood the
question posed by Detective. Thus, Naititi is inapplicable.
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custody or otherwise deprived of his freedom . . . in any
significant way.” State v. Hoey, 77 Hawai#i 17, 33, 881 P.2d 504,
520 (1994) (internal quotation marks omitted). This was plainly
the case here. Defendant was in custody when Detective asked
whether Defendant wished to make a statement. Defendant had been
placed under arrest, and therefore was deprived of his freedom in
a significant way.
B.
As to interrogation, this court has held that it
“involves any practice reasonably likely to invoke an
incriminating response without regard to objective evidence of
the intent of the police[.]” Joseph, 109 Hawai#i at 495, 128 P.3d
at 808. The interrogation element depends on “‘whether the
police officer should have known that his or her words or actions
were reasonably likely to elicit an incriminating response’ from
the person in custody.” Ketchum, 97 Hawai#i at 119, 34 P.3d at
1018 (quoting State v. Ikaika, 67 Haw. 563, 698 P.2d 281 (1985)).
As stated before, an “incriminating response” “refers to both
inculpatory and exculpatory responses.” Joseph, 109 Hawai#i at
495, 128 P.3d at 808.
In Joseph, a Miranda violation was found during a
recorded pre-interview between the defendant and police where the
defendant had not yet been informed of his Miranda rights. Id.
at 496, 128 P.3d at 809. Due to his arrest and detainment, we
concluded that the defendant was in custody at the time of the
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pre-interview. Id. It was also decided that the following pre-
interview exchange included interrogation:
MR. JOSEPH: The car was into the bluff like this, and the
door was open like this.
[DEFENSE COUNSEL]: Right, right, you shooting up the bluff
or —
MR. JOSEPH: No, I’m leaning my back into the vehicle.
[DETECTIVE]: So, he’s leaning with his back against the
bluff.
MR. JOSEPH: Yeah, yeah.
Id. (emphases in original). In Joseph, the detective’s statement
about the defendant leaning his back against the bluff “sought
confirmation of Joseph’s previous statement and was intended to
illicit [sic] a response.” Id. As a result, it was concluded
that the detective should have known that his statement was
reasonably likely to elicit an incriminating response. Id.
State v. Pebria, 85 Hawai#i 171, 174, 938 P.2d 1190,
1193 (App. 1997), is also instructive. There, the defendant was
seated in the lobby area of Queen’s Medical Center with two
security guards standing by him, and a female was speaking to a
police officer in the lobby area. Id. at 173, 938 P.2d at 1192.
The officer who was speaking to the female pointed to the
defendant, identified him as “the other person involved in the
incident,” and asked Officer Rodriguez, who had just arrived
after being dispatched to investigate an initial report of
assault, to obtain the defendant’s information. Id.
Officer Rodriguez then asked the defendant, “Do you
know why you're being detained?” to which the defendant
responded, “I went grab the girl.” Id. After being told that he
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was now a suspect in a kidnapping case, the defendant informed
the officer that he “like rape” the victim. Id. The ICA
determined that the officer’s initial question to the suspect,
“Do you know why you're being detained?” constituted a statement
“reasonably likely to elicit an incriminating response” insofar
as the question “in essence asked [the defendant], ‘Do you know
that you are being detained because the woman talking to [another
police officer] is accusing you of assaulting her?’” Id. at 174,
938 P.2d at 1193. Thus, the defendant’s answer was ruled
inadmissible at trial.
As related, Detective explained that Defendant was
under arrest for assaulting Defendant’s daughter, and then “asked
[Defendant] if he wanted to give a statement[,]” as it was “his
chance to give his side of the story.” By asking for Defendant’s
“side” of the story, Detective implied that the other “side” of
the story supported Defendant’s arrest for assault and that
Defendant was invited to respond to it.
Given that Defendant was advised he was under arrest
for assault, and his child was in the hospital allegedly due to
his acts, Detective should have known that asking Defendant for
his side of the story and indicating that it was his chance to
give that story was “reasonably likely” to elicit an
incriminating response; in other words, it was reasonably likely
that the detective’s question and statement solicited Defendant
to speak about the circumstances of the case that had resulted in
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his arrest. Similar to Joseph, the detective’s pre-interview
invitation to Defendant to give his “side of the story” was a
“practice reasonably likely to invoke an incriminating response
[even] without regard to . . . the intent of the police[.]”
Joseph, 109 Hawai#i at 495, 128 P.3d at 808. Moreover, in this
case the detective concurred that by his prior questions he had
already obtained an answer from Defendant--a “waiver” that he was
going to “give a statement,” although Defendant had yet to be
informed of his Miranda rights. Hence, under the circumstances,
“it is evident that Miranda warnings, as independently grounded
in the Hawai#i Constitution, [were] required prior to [this] pre-
interview.” Id. at 495, 128 P.3d at 808.
C.
The police’s custodial solicitation of Defendant’s side
of the story without first informing Defendant that he had the
right to remain silent is prohibited under Miranda. It must be
reemphasized that “Miranda recognizes a waiver of rights only if
those rights are known to the defendant[,]” and “[n]othing but
mischief would flow from a rule that would permit a defendant to
waive the right to be informed of the rights embodied in the
Miranda warnings.” Id. at 497, 128 P.3d at 810 (internal
quotation marks and citation omitted) (emphases added).
By asking Defendant if he wanted to give his side of
the story without first stating the Miranda warnings, Detective
violated Defendant’s right to be informed of his right to remain
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silent before making the decision and commitment to give a
statement. In inviting Defendant to speak and in obtaining his
commitment to do so before Miranda warnings were given, the
police elicited statements without informing Defendant of the
consequences of his waiving his right to remain silent and the
entire panoply of rights such a commitment involved. In effect,
in getting Defendant to agree to give a statement before being
informed of his rights, the police invoked a practice that would
permit a defendant to waive the right to be informed of his
Miranda rights when Miranda recognizes a waiver of rights only if
those rights are known to the defendant. See id. Accordingly,
in this case there could be no valid waiver of Defendant’s right
to remain silent.
In similar circumstances, this court has said, “[T]he
due process clause [Haw. Const. Art I, sec. 5] serves to ‘protect
the right of the accused in a criminal case to a fundamentally
fair trial.’ Implicit in a ‘fundamentally fair trial’ is a right
to make a meaningful choice between confessing and remaining
silent.” Id. at 494, 128 P.3d at 807 (quoting State v. Bowe, 77
Hawai#i 51, 59, 881 P.3d 538, 546 (1994)). In the absence of the
Miranda warnings, no meaningful choice could be made by Defendant
to remain silent or to agree to make a statement. Thus, in
violation of Defendant’s due process right to a fair trial, the
court also erred in determining that the question and statement
by the detective were merely “preliminary.”
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VI.
The remaining issue is whether Defendant’s Mirandized
statement is admissible at trial because Miranda warnings were
given before the statement was taken. In that regard, “the fruit
of the poisonous tree doctrine prohibits the use of [a statement]
at trial which [has] come [] to light as a result of the
exploitation of a previous illegal act of the police.” Joseph,
109 Hawai#i at 498, 128 P.3d at 811 (internal quotation marks and
citations omitted).
Luton and Joseph are instructive in this regard. In
Luton, the defendant was arrested and thought to be involved in a
stabbing. Luton, 83 Hawai#i at 446, 927 P.2d at 847. Shortly
thereafter, before the defendant was informed of his rights, an
officer heard the defendant say, “I needed the money,” and that
he “didn’t do it, it was someone else.” Id. The day after his
arrest, two detectives advised the defendant of his
constitutional rights. Id. The defendant “indicated that he
understood his rights, and agreed to waive them and to make a
videotaped statement[,]” wherein he admitted being in the
victim’s hotel room at the time of the stabbing. Id. Following
the interview, the defendant was again advised of his Miranda
rights, and, after waiving his rights, the defendant “made
several incriminating statements[.]” Id. at 447, 927 P.2d at
848.
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After he was charged with murder in the second degree
and burglary in the second degree, the defendant filed a motion
to suppress the pre-Miranda statements to the officer that the
defendant “needed the money” and that he “didn’t do it,” as well
as the post-Miranda statements, arguing that they were not
voluntary and were made in violation of his Fifth and Sixth
Amendment rights. The circuit court suppressed the statements.
Id. at 449, 927 P.2d at 850. Inasmuch as the State did not
appeal the circuit court’s determination that the pre-Miranda
statements had to be suppressed, the issue on appeal was whether
the defendant’s post-Miranda statements were admissible.
This court rejected the defendant’s argument that his
waivers were “the fruit of prior police illegality” because
statements elicited “from him during his arrest, but before
reading him his Miranda rights[,]” “tainted” his subsequent
confessions. Id. at 454-55, 927 P.2d at 855-56. According to
this court, the defendant’s “waiver was not predicated on the
[pre-Miranda] statements” inasmuch as “there [wa]s no indication
in the record that HPD detectives exploited [the defendant’s]
illegally obtained statements[,]” “[n]or [wa]s there evidence to
support a claim that officers used those statements to induce
[the defendant] into making a confession[,]” and the transcripts
and the videotaped interview of the defendant were “devoid of any
mention” of the defendant’s previous admissions. Id. at 455, 927
P.2d at 856.
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Contrastingly, it is apparent that Defendant’s
purported “waiver” of his right to remain silent, made after
Miranda warnings, was directly “predicated” on his agreement,
pre-Miranda, to make a statement. That commitment was preceded
by the inquiry and statement from Detective before Defendant was
informed of his right to remain silent. In light of Detective’s
pre-Miranda question and statement, the Miranda warnings given
thereafter became merely an interlude between the un-Mirandized
solicitation for Defendant’s side of the story and the post-
Miranda statement, that Defendant had already agreed to make.
Inasmuch as Defendant had already waived his right to remain
silent by agreeing to make a statement, as indicated by the
circumstances in the record and the testimony of Detective, the
recitation of rights that followed the pre-interview was only a
formality.
Under these circumstances, the Mirandized statement was
obtained by exploiting the illegality of the pre-interview
procedure. Similarly, there were no intervening circumstances
from which it can reasonably be said that the taint from the pre-
interview violation had dissipated preceding the Miranda
statement. As noted, Detective’s testimony confirms this,
inasmuch as he indicated that at the time he gave Defendant the
Miranda warnings, he had already obtained an alleged waiver of
Defendant’s Miranda rights, since Defendant had agreed to make a
statement.
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In Joseph, this court concluded that the post-Miranda
statements had to be suppressed. There, the defendant, before
being given Miranda warnings, told police officers that he was in
his vehicle shooting at the “Pali Golf Course” clubhouse. 109
Hawai#i at 485, 128 P.3d at 798. Subsequent to the pre-
interview, “a formal interview was conducted, (the post-Miranda
interview),” where, after being advised of his rights, the
defendant gave a statement. Id. The circuit court suppressed
the post-Miranda statement, and this court affirmed the
suppression. Id. at 491, 128 P.3d at 804. We said, “The
pre-interview statements were exploited in that [the defendant]
was subsequently questioned on the same matter in order that he
would repeat his earlier statement.” Id. at 499, 128 P.3d at
812. Additionally, the defendant’s post-Miranda statement was
not sufficiently attenuated from the pre-interview Miranda
violation because “[t]he post-interview was conducted by the same
two detectives in the same interrogation room with no lapse in
time between it and the pre-interview.” Id.
Likewise, Defendant’s pre-Miranda statement was
“exploited” in that Defendant “was subsequently questioned” on
the same matter he had agreed to talk about before being informed
of his Miranda rights. Both the pre-interview and post-Miranda
interview were conducted by the same detective, and the statement
was obtained after the pre-interview. The statement was the
product of the un-Mirandized pre-interview inquiry and statement
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by the detective. The taint of the pre-interview violation,
then, had not dissipated at the time of the statement.
In the instant case, the State has not demonstrated
that Defendant’s post-Miranda statement was obtained without
exploiting the Miranda violation, and that the statement was
sufficiently attenuated from the Miranda violation to dissipate
the taint of the violation. Inasmuch as the incriminating
statement given by Defendant on October 27 was obtained in
violation of the Miranda rule, the statement should not have been
admitted in evidence and must be excluded.
VII.
For the reasons stated, we vacate the (1) June 30, 2009
Findings of Fact, Conclusions of Law, and Order Finding
Voluntariness of Defendant’s Statement” of the court; and (2) the
March 4, 2010 judgment of conviction and sentence.20 We instruct
20
It is well established that, “[w]here there exists a reasonable
possibility that a constitutional error of the trial court contributed to the
conviction of the defendant, the error necessitates reversal.” Amorin, 61
Haw. at 362, 604 P.2d at 49-50. In other words, if the error “raised the
reasonable possibility of having contributed to the conviction below[,]” it
cannot be “harmless beyond a reasonable doubt.” Id. Defendant was charged
with attempted murder in the second degree which required proof that Defendant
“intentionally engage[d] in conduct” that would constitute murder. His
statement that he struck and threw the baby out of frustration and that he was
angry because the baby would not stop crying is evidence of his conduct and of
his state of mind.
Thus, the error in admitting the statements “raised the reasonable
possibility of having contributed to the conviction[,]” id., inasmuch as the
statement indicated his act and intent at the relevant time. See id. at 358,
362, 604 P.2d at 47, 50 (determining that the circuit court's admission of the
defendant's statement, in violation of Miranda, that he stole the car in
defendant’s trial for unauthorized control of a propelled vehicle “raised the
reasonable possibility of having contributed to the conviction below” and this
court could not “say that it was harmless beyond a reasonable doubt”). Hence,
in the instant case, it cannot be said that the court’s error in admitting
Defendant’s statement was harmless beyond a reasonable doubt.
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the court to enter an order suppressing the October 27, 2007
statement of Defendant, and remand the case to the court for a
new trial.21
David Glenn Bettencourt, /s/ Simeon R. Acoba, Jr.
for petitioner/
defendant-appellant. /s/ James E. Duffy, Jr.
Donn Fudo, Deputy /s/ Sabrina S. McKenna
Prosecuting Attorney,
for respondent/
plaintiff-appellee.
21
As noted, Defendant was charged with attempted murder in the
second degree, with the special circumstance that his daughter was eight years
of age or younger, HRS §§ 705-500 (1993), 707-701.5 (1993), and 706-656 (Supp.
2007). However, he was found guilty of attempted manslaughter under HRS §§
705-500 and 707-702(2). HRS § 707-702(2) (1993) provides in relevant part
that:
(2) In a prosecution for murder or attempted murder in the first
and second degrees it is an affirmative defense, which reduces the
offense to manslaughter or attempted manslaughter, that the
defendant was, at the time the defendant caused the death of the
other person, under the influence of extreme mental or emotional
disturbance for which there is a reasonable explanation. . . . .
Because Defendant was found guilty of attempted manslaughter, he was
impliedly acquitted of attempted murder in the second degree, and double
jeopardy bars retrial for that offense. See State v. Kalaola, 124 Hawai#i 43,
52, 237 P.3d 1109, 1118 (2010) (“Consistent with the prohibition against
reprosecution following an acquittal, double jeopardy presents an absolute bar
to retrial where, inter alia, the defendant has been acquitted, whether
expressly or impliedly, notwithstanding a subsequent reversal of the judgment
on appeal[.]”) (internal citation and quotation marks omitted).
31