Tuesday, September 28, 2010

Remanding for Conviction on the Lesser-Included Offense not Always so

State v. Bullard (ICA September 27, 2010)

Background. Bullard was prosecuted for excessive speeding. HRS § 291C-105(a)(1) and (a)(2). At trial, Officer Corinne Rivera testified that she paced Bullard's vehicle in her own "subsidized" police vehicle--a Toyta 4Runner. Officer Rivera testified that her Toyota gets an annual speed check at a place called "Roy's." Over Bullard's objection, the district court admitted Officer Rivera's speed check card from Roy's Kalihi Automotive Center & Towing. Officer Rivera testified that Bullard was going 91 m.p.h. The district court took judicial notice that that stretch of highway had a speed limit of 55 m.p.h. Bullard testified in his own defense. He admitted to speeding, but not excessive speeding. The district court found Bullard guilty of excessive speeding.

The Error Conceded. Bullard and the prosecution agreed that the district court erred in admitting the speed card check because the prosecution failed to lay sufficient foundation to support the admission of the speed card check and, without that, there is insufficient evidence supporting the excessive speeding conviction. The ICA also agreed. See State v. Fitzwater, 122 Hawai'i 354, 227 P.3d 520 (2010).

Retrial v. Lesser-Included Conviction. The sole issue in this case was what to do with Bullard after concluding that there was insufficient evidence to support the excessive speeding conviction. Bullard argued that the case should be remanded for retrial of the lesser-included offense of regular speeding. "[R]emanding a case for retrial on lesser included offenses following an appellate determination that insufficient evidence to support a conviction of a greater offense was presented at trial does not offend the double jeopardy clause" of the state and federal constitutions. State v. Malufau, 80 Hawai'i 126, 136, 906 P.2d 612, 622 (1995). The prosecution, however, argued that because there was sufficient evidence supporting regular speeding, the district court should enter judgment for that offense without trial.

The Appellate Court has the Authority to Direct Entry of a Lesser-Included Conviction. The ICA concluded that appellate courts have the power to direct entry of judgment of conviction for the lesser included offense. "[T]here is no need to retry a defendant for a lesser included offense when the elements of the lesser included offense were necessarily proven to the jury beyond a reasonable doubt in the course of convicting the defendant of a greater offense." State v. Haynie, 867 P.2d 416, 418 (N. M. 1994). According to the ICA, the HSC in Malufau "echoed this rationale[.]"

But when the Error is Based on Improper Evidence Admitted at Trial, Something more is Required before Direct Entry of the Conviction. This, however, depends on the trial court's error. According to the ICA, when the trial court erred in admitting evidence. It is not enough to simply determine whether there was sufficient evidence for the lesser-included offense. "Instead, we analyze whether despite the sufficiency of the properly admitted evidence, there is a reasonable possibility that the trial court's erroneous admission of evidence might have contributed to the defendant's conviction." See State v. Machado, 109 Hawai'i 445, 452-53, 127 P.3d 941, 948-49 (2006). The ICA further explained that "the potential effect of the erroneous admission of evidence on the lesser included offense must be determined before entry of judgment on the lesser included offense is appropriate. Otherwise, the appellate court may be directing entry of judgment on the lesser included offense in a case where the erroneous admission of evidence prejudiced the defendant's rights as to both the greater offense and the lesser included offense."

Here, it was Harmless Beyond a Reasonable Doubt. The ICA held that the erroneous admission of the speed card check was harmless beyond a reasonable doubt for the lesser-included offense of speeding. Officer Rivera's testimony and Bullard's admission showed sufficient evidence that Bullard was speeding. Given that evidence, the ICA held that there is no reasonable possibility that the admission of the speed check card contributed to the district court's finding that Bullard drove over the speed limit.

Regular Speeding is a Lesser-Included "Offense." Regular speeding is not a crime. It is a traffic violation. Here, the ICA operated under the assumption that the traffic infraction was a lesser-included offense. The ICA rejected Bullard's argument that a traffic infraction cannot be a lesser-included offense. The main reason why the ICA rejected the argument was because the HSC had no problem determining that the traffic infraction was a lesser included offense in State v. Fitzwater. Bullard conceded that the HSC rejected this claim and the ICA "is not at liberty to overturn a decision of the Hawai'i Supreme Court." The ICA also noted, however, that "Bullard provide[d] no persuasive explanation for why the analysis to lesser included criminal offenses should not also apply to lesser included traffic infractions."

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