Narrowing the Prohibition Against Disjunctive Pleading
State v. Codiamat (HSC December 27, 2013)
Background. Marianne Codiamat was charged with a single count of harassment:
On or about the 6th day of January, 2011, in the City and County of Honolulu, State of Hawaii, MARIANNE L. CODIAMAT, with intent to harass, annoy, or alarm [Complainant], did strike, shove, kick, or otherwise touch [Complainant] in an offensive manner or subject [Complainant] to offensive physical contact, thereby committing the offense of harassment in violation of [HRS § 711-1106(1)(a).].
Codiamat moved to dismiss the charge based on deficient pleading. She argued that the use of the disjunctive rendered the complaint deficient and too difficult for her to prepare for a defense. Over the prosecution’s objection, the district court granted the motion and dismissed the case without prejudice. The prosecution appealed and the ICA affirmed, and Chief Judge Nakamura concurred and wrote separately to state that the precedent should be reexamined and overturned. Inexplicably, Codiamat petitioned for certiorari.
The Constitution and the Charge. The Sixth Amendment to the United States Constitution and Article I, Section 14 of the Hawaii Constitution require the charge to be “worded in a manner such that the nature and cause of the accusation could be understood by a person of common understanding.” State v. Sprattling, 99 Hawaii 312, 318, 55 P.3d 276, 282 (2002). Historically, “[t]he rule against disjunctive allegations in Hawaii has been modified and relaxed in in cases of offenses which are constituted of one or more of several acts or which may be committed by one or more of several means or with one or more of several intents or which may produce one or more of several results.” Territory v. Tamashiro, 37 Haw. 552, 553 (Terr. 1947).
The rule changed after statehood. “Where a statute specifies several ways in which its violation may occur, the charge may be laid in the conjunctive, but not in the disjunctive.” State v. Jendrusch, 58 Haw. 279, 283 n. 4, 567 P.2d 1242, 1245 n. 4 (1977). The rule was clarified to charge offenses in a “conjunctive/disjunctive” allegation; the infamous “and/or” pleading. State v. Batson, 73 Haw. 236, 250, 831 P.2d 924, 932 (1992).
A Closer Look at the Jendrusch Rule. The HSC closely examined the rule and noted that “complaints charging non-synonymous acts disjunctively may not provide adequate notice.” But even then, it may not be fatally flawed. The HSC read Jendrusch narrowly and noted that only when charging separate subsections of the harassment statute. These days, there are six different subsections and six different types of behavior that constitute harassment. Those are the “non-synonymous acts.”
But even among the subsections, there are different forms of conduct. For example, in subsection (b), a person commits harassment if that person “insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response or that would cause the other person to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another[.]” HRS § 711-1106(b). There are alternative ways to violate this subsection.
Here, the HSC noted that Codiamat was charged with violating only subsection (a): “Strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact[.]” The HSC reasoned that the differences between striking, shoving, kicking or otherwise touching a person in an offensive way and subjecting the person to offensive physical contact are “inconsequential because the actions are closely related, falling within the same category of behavior.” And since only one category is alleged, the Jendrusch rule is not violated.
Defending the Narrowly-Read Jendrusch Rule. The HSC went on to defend its reading of the old rule. As long as the charges are coming from the same statutory sections or subsections, they can be charged disjunctively. This alerts the defendant to be prepared for multiple theories presented by the prosecution. But when the charging instrument mixes the subsections in the disjunctive, it would run afoul with the Jendrusch rule and be constitutionally deficient.