HSC Vacates Conviction that Might be Based on the Imaginary Offense of Attempted Manslaughter

 Stanley v. State (HSC January 5, 2021)

Background. In 1988, Edward Stanley was involved with the police in a shootout with the police and others. He was indicted with four counts of attempted murder in the first degree and one count of attempted murder in the second degree. At trial, the judge acquitted Stanley of one of the attempted murder in the first degree counts and allowed the rest to go to the jury for consideration.


In the trial court’s instructions to the jury, the court explained that if they could not find that attempted murder in the first or second degree was proven beyond a reasonable doubt, the jurors had to consider the included offense of attempted manslaughter. The court instructed that attempted manslaughter is the attempt to “recklessly cause the death of another person.” The court in the same jury instruction also explained that is a defense to murder of either degree that “reduces the offense to attempted manslaughter” when the defendant was “under the influence of an extreme mental or emotional disturbance for which there is a reasonable explanation.”


During deliberations the jury asked the court twice for clarification on the difference between attempted manslaughter and the attempt to recklessly cause death. The trial court declined to provide more explanations and referred jurors back to the instructions given. Then they asked for Black’s Law Dictionary, but that too was denied. Two days later the jurors found Stanley guilty of two counts of first degree reckless endangering, attempted murder in the first degree, attempted manslaughter as an included offense of attempted second degree murder and a firearm offense. For attempted murder in the first degree, Stanley was sentenced to life without parole and for attempted manslaughter he received ten years.


He appealed and the conviction was affirmed. He filed his first habeas corpus petition pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 40 in 1992. That was rejected. In 2017, he filed a second Rule 40 petition alleging that his conviction of attempted manslaughter was based on reckless conduct and, therefore, his sentence was unlawful. The circuit court, with the Hon. Judge Paul Wong presiding, dismissed the petition without an evidentiary hearing and the ICA affirmed. He petitioned to the HSC.


The Rule 40 Petition is the Correct Procedural Mechanism to Correct an Unlawful Sentence. A petition pursuant to HRPP Rule 40 may be brought “[a]t any time but not prior to final judgment[.]” HRPP Rule 40(a)(1). However, “[i]f a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer[.]” HRPP Rule 40(f). The court can deny the hearing when the claim is “patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner.” Id. The HSC read this to mean that a Rule 40 petition alleging an unlawful sentence can be brought at any time—even after the issuance of final judgment. See Akau v. State, 144 Hawaii 159, 439 P.3d 111 (2019) and Flubacher v. State, 142 Hawaii 109, 114 n. 7, 414 P.3d 161, 166 n. 7 (2018). And so the HSC reviewed the petition on the merits.


The Imaginary Offense of Attempted Reckless Manslaughter. A person commits the offense of murder if he or she intentionally or knowingly causes the death of another person. HRS §§ 707-701 & 701.5. Manslaughter is a separate offense that can be committed when a person recklessly causes the death of another person. HRS § 707-702(1)(a). It is also committed when a person intentionally or knowingly causes the death of another person while under the influence of an extreme mental or emotional disturbance (EMED). HRS § 707-702(2). Manslaughter by EMED is an included offense to murder. Id.


When a person is charged with attempted murder attempted manslaughter by way of reckless conduct is not an included offense. State v. Holbron, 80 Hawaii 27, 33-45, 904 P.2d 912, 918-930 (1995). In other words, there is no such thing as making a deliberate attempt to recklessly cause the death of another person. There is no such offense. Id. at 43, 904 P.2d at 928. “It is self-evident that, being non-existent, attempted reckless manslaughter cannot be included within attempted” murder. State v. Loa, 83 Hawaii 335, 358, 926 P.2d 1259, 1281 (1995).


The Record Does not Clarify the Difference Between Reckless Manslaughter and EMED. According to the HSC, when “based on the entirety of the record, there is a reasonable possibility that a defendant was convicted of a non-existent offense, the judgment of conviction must be set aside.” The trial court’s instruction about attempted manslaughter erroneously included the non-existent offense of “attempt[ing] to recklessly cause the death of another person” and the other variant of manslaughter by way of EMED. The HSC noted that the “critical inquiry, then, is whether the attempted reckless manslaughter” instruction “necessarily contributed” to the conviction. Loa, 83 Hawaii at 359, 926 P.2d at 1282. It did. The jurors repeatedly asked for clarification on attempted manslaughter. The fact that the verdict might be a safe EMED conviction or might be an unsafe attempted reckless manslaughter conviction still creates the reasonable possibility that Stanley was convicted of a non-existent offense. The HSC vacated the attempted manslaughter conviction and remanded the case to the circuit court.


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