The (Re)trials and Tribulations of Christopher Deedy

State v. Deedy (HSC December 14, 2017)

Background. You should know this one by now. Christopher Deedy was a federal agent assigned to Honolulu in 2011. Late one night at a McDonald’s in Waikiki, Deedy shot and killed Kollin Elderts. He was indicted with murder in the second degree. At the first trial the prosecution and Deedy requested that no manslaughter instruction be read as an included offense. The circuit court agreed. The jury was hung and a mistrial was declared. Deedy was tried a second time. This time, the court instructed the jury about reckless manslaughter, assault in the first degree, and assault in the second degree over the objections of both parties. After six and a half days of deliberation, the jury acquitted Deedy of murder, but was hung on the included offenses. A second mistrial was declared. Before the third trial, Deedy filed a motion to dismiss on the grounds that a third trial violates his constitutional rights and the Hawaii Penal Code. The motion was denied and the case was presented to the HSC.

Retrial is not a new Prosecution. The prosecution first asserted that Deedy waived the right to challenge the third trial because it was past the pretrial motions deadline from the second trial. While it is true, according to the HSC, that motions regarding “defenses and objections based on defects in the institution of the prosecution” must be raised within 21 days after arraignment, Hawaii Rules of Penal Procedure (HRPP) Rule 12(b)(1) and (c), a retrial is not the “institution of the prosecution.” A retrial is a continuation of a prosecution that has already been instituted. See State v. Mundon, 129 Hawaii 1, 14 n. 22, 292 P.3d 205, 219 n. 22 (2012). HRPP Rule 12(b)(1) does not apply to a retrial. Moreover, the rule contemplates an arraignment. But no new arraignment occurs in a retrial and compliance with the rule would be impossible. Deedy correctly filed his motion to dismiss between the end of the second trial and prior to the third.

The Double Jeopardy Bramble Bush. Deedy argued that a third trial violates his constitutional right against double jeopardy. Haw. Const. Art. I, Sec. 10 and U.S. Const. Am. V. The clauses prohibit a new trial “for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” State v. Quitog, 85 Hawaii 128, 140, 938 P.2d 559, 571 (1997). The clauses protect the accused from “(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” Id. at 141, 938 P.2d at 572. Deedy presented three different Double Jeopardy claims—all of which were rejected by the HSC.

The Prosecution did not Abandon Reckless Manslaughter. Retrial of the original offense is constitutionally barred when the prosecution abandons the original charge and instead urges the jury to find guilt on an included offense during the first trial, the jury deadlocks, a mistrial is declared, and the prosecution could have posited the theory it later advances on retrial. Id. at 129-130, 938 P.2d at 560-561. Deedy argued that when the prosecution posited that there was no need for lesser-included offenses and urged jurors to find Deedy guilty as charged and ignore the lessers. The HSC disagreed. The HSC noted that Deedy was arguing the “reverse” of the Quitog rule. Focusing on convicting Deedy as charged and minimizing the lesser-included offenses is not the same thing as abandoning the original charge and asking to convict on the lesser.

There was no “Acquittal” when the Judge went all or Nothing in the First Trial. “The constitutional guarantee against double jeopardy protects against a second prosecution for the same offense after acquittal.” State v. Lee, 91 Hawaii 206, 209, 982 P.2d 340, 343 (1999). An “acquittal” for double jeopardy purposes arises when “the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.” State v. Dow, 72 Haw. 56, 65, 806 P.2d 402, 407 (1991).

The HSC rejected Deedy’s claim that when the judge in the first trial found no rational basis for instructing on the lesser-included offenses, he was “acquitted” for double jeopardy purposes and could not be retried on lessers. The HSC relied on HRPP Rule 29—the judgment on acquittal rule:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses alleged in the charge after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

HRPP Rule 29(a). The HSC noted that the rule does not allow the trial court to acquit the defendant of the lesser while leaving the greater offense unresolved. In fact, the opposite is at work, according to the HSC, when the judge considers a judgment of acquittal on a charge, it must also consider the sufficiency of any underlying included offense. There was no authority for the trial judge to “acquit” Deedy of the underlying offenses while leaving the charged offense unresolved.

Moreover, the HSC held that refusal to give instructions on lessers is not an implicit acquittal of those charges. If that was the case, then if the trial court got it wrong there would be no remedy for the appellate court to remand the case for new trial. The HSC was unwilling to up end the countless cases in which it has done just that. State v. Adviento, 132 Hawaii 123, 140, 319 P.3d 1131, 1148 (2014); State v. Flores, 131 Hawaii 43, 58, 314 P.3d 120, 135 (2013); State v. Faamama, 139 Hawaii 94, 101, 384 P.3d 870, 877 (2016).

And There’s no Collateral Estoppel. Related to the double jeopardy protection is the doctrine of collateral estoppel. “When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” State v. Mundon, 129 Hawaii 1, 14, 292 P.3d 205, 218 (2012). Even when double jeopardy is not implicated, re-litigation of facts already resolved cannot be rehashed in a new trial. The principle first emerged in Ashe v. Swenson, 397 U.S. 436, 438-439 (1970), when the defendant was found not guilty of robbing a man at a poker game and then retried for robbing a different man at the same game. The Supreme Court of the United States explained the principle:

Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of [a different victim] in the hope that a different jury might find that evidence more convincing.

Id. at 446.

The HSC held that the doctrine of collateral estoppel had no place in Deedy’s case. The judge’s refusal to instruct the jury in the first trial about lesser-included offenses is not an acquittal. Moreover, the jury in the second trial was deadlocked on these matters. They are still unresolved. The prosecution is not collaterally estopped from trying Deedy of these offenses.

The Hawaii Penal Code. HRS Chapter 701 provide statutory limitations on retrials. Each one raised by Deedy were rejected by the HSC.

The Compulsory Joinder Statute is Inapplicable. “[A] defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.” HRS § 701-109(2). The statute limits the prosecution’s power to “seek convictions for all offenses resulting from a single course of conduct.” State v. Aiu, 59 Haw. 92, 95-96, 576 P.2d 1044, 1047 (1978). It “reflects a policy that all charges that arise under one episode be consolidated in one trial so that a defendant need not face the expense and uncertainties of multiple trials based on essentially the same episode.” State v. Servantes, 72 Haw. 35, 38, 804 P.2d 1347, 1348 (1991). The statute is supposed “to prevent the State from harassing a defendant with successive prosecutions where the State is dissatisfied with the punishment previously ordered or where the State has failed to convict the defendant.” Id. The HSC held that HRS § 701-109(2) “simply has no application in this case because all offenses with which Deedy was charged were tried together at the first and second trials.”

HRS § 701-110(1) Doesn’t Bar Retrial of Lessers. A subsequent prosecution for the same offense based on the same facts is barred by the former prosecution under the following circumstances:

The former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside on appeal by the defendant.

HRS § 701-110(1). The statute bars subsequent prosecutions for the original or greater charge after a jury found the defendant guilty of a lesser-included offense. See State v. Feliciano, 62 Haw. 637, 618 P.2d 306 (1980) superseded by statute on other grounds as stated in State v. Kalaola, 124 Hawaii 43, 52, 237 P.3d 1109, 1118 (2010). That’s not the case here. The retrial is of reckless manslaughter; not murder in the second degree. If the prosecution tried to revive the original charge—the charge in which he was acquitted—the statute would apply.

HRS § 701-111(1)(a) and (1)(c) are Inapplicable. Subsequent prosecution for a different statute and even different facts may be barred in certain circumstances:

(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 701-110(3) and the subsequent prosecution is for:

(a) Any offense of which the defendant could have been convicted on the first prosecution

. . .

(c) An offense based on the same conduct. . . . .

HRS § 701-111(1)(a), (c). This statute, according to the HSC, is inapplicable because it “obviously was intended to deal with a new prosecution, commenced after a termination of a prior prosecution, and terminated as defined in that section.” State v. Wacker, 70 Haw. 332, 333, 770 P.2d 420, 421-422 (1989), overruled on other grounds in State v. Dow, 72 Haw. 58, 806 P.2d 402 (1991). It is not meant to “deal with a situation where there were multiple counts, under different statutes, in an original prosecution, which were tried together as required by statute, resulting in an acquittal on some of the counts, and a mistrial on others.” Id. This is not a new prosecution. This is a retrial.

The Moriwake Claim. The HSC thoroughly examined the denial of Deedy’s Moriwake claim. The trial court has the discretion to dismiss a prosecution on retrial with prejudice “following the declaration of one or more mistrials because of genuinely deadlocked juries, even though the defendant’s constitutional rights are not yet implicated.” State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705, 711 (1982). The court must balance “the interest of the state against fundamental fairness to a defendant with the added ingredient of the orderly functioning of the court system.” Id. at 56, 647 P.2d at 712. Here are the factors trial courts must consider:

(1) the severity of the offense charged; (2) the number of prior mistrials and the circumstances of the jury deliberation therein, so far as is known; (3) the character of prior trials in terms of length, complexity, and similarity of evidence presented; (4) the likelihood of any substantial difference in a subsequent trial, if allowed; (5) the trial court’s own evaluation of relative case strength; and (6) the professional conduct and diligence of respective counsel, particularly that of the prosecuting attorney.

Id. at 56-57, 647 P.2d at 712-713. Not all factors need be given equal weight and some factors need be given more weight than others. State v. Hinton, 120 Hawaii 265, 280, 204 P.3d 484, 499 (2009). The HSC examined each and every factor and found no abuse of discretion in the way the trial court weighed and balanced each factor.

The Federal Constitution Cannot Shield a State Prosecution here. Deedy’s last claim was that he was immune from state prosecution because he was a federal agent in the performance of his duties. A federal officer is entitled to immunity pursuant to the Supremacy Clause of the federal constitution “only when his acts are both (1) authorized by the laws of the United States and (2) necessary and proper to the execution of his responsibilities.” Morgan v. California, 743 F.2d 728, 731 (9th Cir. 1984). The court must assess the evidence in the light most favorable to the State. Id. at 733. When there is a conflict in the evidence, the State has jurisdiction to prosecute. United States ex rel. Drury v. Lewis, 200 U.S. 1, 7-8 (1906).

At the hearing, Special Agent Matthew Golbus testified that Deedy as an agent of the Diplomatic Security Service (DSS) has authority pursuant to 22 U.S.C. § 2709 to make arrests for any offense against the United States committed in his presence or for any felony cognizable under the law of the United States. Moreover, he argues that his actions were justifiable because anyone who “assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties” is punishable under federal law. 18 U.S.C. § 111(a)(1).

The HSC rejected this claim. “Deedy does not explain how a night of socializing and drinking alcoholic beverages in Waikiki with friends was part of his ‘official duties’ as a State Department agent[.]” Deedy was not investigating any case involving passports or visas; “rather, he was drinking alcoholic beverages at multiple bars and then ate at a fast-food restaurant in Waikiki.” The HSC held he was not immune from State prosecution.

Justice Nakayama’s Dissent. Justice Nakayama dissented and would have held that  third prosecution is judicially estopped and that the circuit court erred in denying the Moriwake claim.

Judicial estoppel is an equitable doctrine that prohibits a party “to take a position inconsistent with a previous position if the result is to harm another.” Univ. of Haw. Prof’l Assembly ex. rel. Daeufer v. Univ. of Haw., 66 Haw. 214, 222, 659 P.2d 720, 751 (1983). The doctrine prohibits a party “from playing fast and loose with the court or blowing hot and cold during the course of litigation.” Roxas v. Marcos, 89 Hawaii 91, 124, 969 P.2d 1209, 1242 (1998). Justice Nakayama wrote that the prosecution during the last two trials maintained there was no need for lesser-included instructions. Now, “in defense of its opportunity to try the case a third time, the State completely flipped its position, and argued that there is a rational basis in the evidence” for the lessers. Justice Nakayama wrote that the principles of justice and fair play are offended by a third trial. She also concluded that the Moriwake analysis was incorrect.