Assault in the First Degree is a Lesser Included Offense to Murder

State v. Kaeo (HSC February 28, 2014)

Background. Paul Kaeo was indicted with one count of murder in the second degree. Evidence at trial showed that Kaeo separated from his wife Debbie and Debbie started seeing Charles Kahumoku. During the separation, Paul and Debbie communicated with each other—especially when Debbie would argue with Charles. Paul would tell Debbie that he threatened to kill Charles if he ever found him. Debbie’s father also reported that Paul would make similar threats about Charles. The incidents escalated between Paul and Charles. One day in May, Paul was with Debbie and her father preparing for a party. Paul and the father discussed Debbie and her relationship with Charles. Charles dropped off Debbie, but did not stick around. Later that night, Charles showed up and started yelling at Paul.

The two of them got into an argument. Paul grabbed a pipe and started smashing Charles’ car. Paul then went to the driver’s side of the car and started “jabbing” Charles. Paul admitted he was trying to hurt Charles, but testified that he was under the impression that he needed to do it to protect Debbie. He testified that he did not intend on killing him. Eventually, Charles started making a gurgling sound and Debbie’s father took the pipe away from Paul. No emergency personnel showed up for about ten minutes. Paul testified that he did not know Charles had died that night. The ambulance arrived to the scene and pronounced Charles dead. The doctor who performed the autopsy concluded that Charles died of blunt force trauma to the head.

Kaeo requested that the jury be instructed on assault in the first degree as a lesser-included offense to murder in the second. The circuit court (Judge Ahn) refused to provide the instructions. The jury found Kaeo guilty of reckless manslaughter and the court sentenced him to prison for twenty years with a mandatory minimum of six years and eight months. Kaeo appealed to the ICA, which affirmed the conviction on the grounds that the court’s failure to provide the instruction was harmless error. Kaeo petitioned for cert to the HSC.

The Law of Lessers: Same Offense but for Degree of Injury is Probably a Lesser. An offense is a lesser-included one when, inter alia, “[i]t 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 a lesser degree of culpability suffices to establish its commission.” HRS § 701-109(4). “The degree of culpability, degree of injury or risk of injury and the end result are some of the factors considered in determining whether an offense is included in another” under this provision. State v. Kupau, 63 Haw. 1, 7, 620 P.2d 250, 254 (1980).

Here, the HSC noted that all three factors—the degree of culpability, degree of injury, and the end result—as well as the legislative history of the offenses all point toward making assault in the first degree a lesser-included offense of murder in the second.

Assault in the First does not Require a Greater or Different Mental State. The first factor—the degree of culpability—requires the lesser-included to have a mental state that is not “greater than or different from that which is required for the charged offense.” State v. Alston, 75 Haw. 517, 534, 865 P.2d 157, 166 (1994). Here, the HSC held that murder in the second degree and assault in the first do not require separate or different mental states. Murder requires proof that the person “intentionally or knowingly caused” the death of another. HRS § 707-701.5(a). First-degree assault requires “intentionally or knowingly” causing serious bodily injury. HRS § 707-710(1). This, according to the HSC, does not require a greater or different mental state from murder in the second.

Degree of Injury is Lesser than the “Injury” Needed to Prove Murder. The other factor is whether the degree of injury in assault in the first degree is greater than the seriousness of injury or damage in murder. According to the HSC, murder and assault in the first require the defendant to cause “physical harm” in some degree. In murder, the physical harm is death, which is obviously more serious than “serious bodily injury” as defined in HRS § 707-700. Serious bodily injury is the kind of injury that carries the substantial risk of death. Id. That would obviously be a lesser degree of harm than death itself. The HSC noted that finding that assault in the first is a lesser included of murder in the second, adheres to the principle that two offenses can require the same mental state and conduct, but require different results of that conduct.

Different “End Results” still Point to a Lesser-Included Offense. “[T]he lesser included offense should produce the same end result as the charged offense.” State v. Burdett, 70 Haw. 85, 89, 762 P.2d 164, 167 (1988). That “end result” means the results of the criminal act. For example, negligent homicide and murder have the same “end result.” The HSC noted that assault in the first degree does not have the same, permanent end result as murder. Nonetheless, this is just one of several factors for the court to determine a lesser-included offense. See State v. Woicek, 63 Haw. 548, 551, 632 P.2d 654, 656 (1981); State v. Kupau, 63 Haw. at 7, 620 P.2d at 254 (even though offenses do not have same end result, harassment a lesser-included offense to assault in the third degree).

Here, the HSC held that even though the offenses had different end results, they are both offenses against the person and require proof of physical harm to that person. That was enough for the HSC to determine that this factor pointed toward making assault in the first degree and lesser.

The “Legislative Statutory Scheme” also Implies a LIO. The HSC then examined the “legislative statutory scheme.” Both are crimes against persons and are within the same sections of the Hawaii Penal Code.

Failure to Instruct the Jury is NOT Harmless. Having held that the assault offense is a LIO to murder, the HSC went on to examine if it was harmless beyond a reasonable doubt in failing to instruct the jury about it. “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. Flores, 131 Hawaii 43, __, 314 P.3d 120, 128 (2013). The HSC held fairly easily that the evidence showed such a rational basis. Kaeo testified that he was trying to hurt Charles, not kill him. That would have been enough of a rational basis. Moreover, the circumstances surrounding the incident allowed the jury to believe that Kaeo did not intentionally or knowingly cause Charles’ death. Thus, according to the HSC, the court erred in refusing to instruct the jury about assault in the first degree.

Chief Justice Recktenwald’s Dissent. The Chief Justice was the lone dissenter. He wrote that the main issue was not whether there was a rational basis for the jury to acquit of murder in the second and convict of assault in the first. Rather, the real issue was if there was a rational basis for its actual verdict—manslaughter. The CJ believed there was no such rational basis and would have affirmed the judgment. The CJ wrote that the trial court properly instructed the jury about the lesser included offense of manslaughter based on recklessness and manslaughter based on extreme emotional or mental distress. The issue is really whether assault in the first degree is a lesser-included offense to reckless manslaughter and the CJ properly pointed out that the “majority skips that step.”

HSC to the CJ: Not our Job. The chief contention from the Chief Justice was that the HSC’s holding would conflict with the manslaughter verdict. The HSC responded that a finding that Kaeo intentionally or knowingly caused serious bodily injury does not automatically infer a conscious disregard of the risk that Kaeo’s conduct would result in the injured person’s death. Moreover, the HSC noted that the evidence would have allowed the jury to acquit of murder and manslaughter, but not of assault in the first degree. The HSC disagreed with the CJ’s contention that the evidence made it impossible for the jury to convict of assault in the first degree. “[I]t is the duty of the jury, and not an appellate court, to weigh such evidence; it would be contrary to fundamental principles of our jury system to hold, as the dissent urges, that as a matter of law the jury ‘could not have’ found assault in the first degree ‘without also finding’ that [Kaeo] consciously disregarded the risk that the jabbing would cause Charles’ death.”