When the Pleading must Descend into Particulars

State v. Jardine (HSC April 29, 2022)

Background. John Keoni Jardine got into a fight with his neighbor and hit him in the head with a baseball bat. The hit caused a “left occipital skull fracture” and “epidural hematoma, pneumocephale.” The prosecution filed a felony information. Here’s how it pleaded assault in the second degree:

 

On or about August 25, 2019, in the City and County of Honolulu, State of Hawaii, JOHN KEONI JARDINE . . . did intentionally, knowingly, or recklessly cause substantial bodily injury to Paul Costa, and/or did intentionally or knowingly cause bodily injury to Paul Costa with a dangerous instrument, thereby committing the offense of Assault in the Second Degree, in violation of Section 707-711(1)(a) and/or Section 707-711(1)(d) of the Hawai'i Revised Statutes.

 

Jardine moved to dismiss the charge on the grounds that the prosecution failed to include the statutory definition of the term “substantial bodily injury.” The circuit court—with the Hon. Judge Karen T. Nakasone presiding—granted the motion. The prosecution appealed to the ICA. The ICA affirmed. The prosecution petitioned to the HSC.

 

The Right to be Informed of the Accusation Requires Specific Pleading of Generic Terms. The accused enjoys the constitutional right “to be informed of the nature and cause of the accusation” against him or her. Haw. Const. Art. I, sec. 1. That right comes into play when examining the pleading of the charging instrument.

 

The accusation “must sufficiently allege all of the essential elements of the offense[.]” State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977). That means the charge contain all of “the elements of the offense intended to be charged, and sufficiently apprise[] the defendant of what he [or she] must be prepared to meet.” State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996).

 

The HSC never addressed if the charge needed to include the statutory definition of the term “substantial bodily injury.” The HSC observed that such inquiry “falls one step short because including the full statutory definition would not sufficiently apprise the defendant of what he must be prepared to meet.”

 

Generic terms require the “Descen[t] into Particulars.” When “the definition of an offense . . . includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species . . . [and] descend into particulars.” State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995). That was the case here. Relying on the dictionary, the HSC noted that a term is “generic” when it “relates to or is characteristic of a whole group or class.”

 

The term “substantial bodily injury” is generic because it identifies five types of injuries:

(1) A major avulsion, laceration, or penetration of the skin;

(2) A burn of at least second degree severity;

(3) A bone fracture;

(4) A serious concussion; or

(5) A tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs.

 

HRS § 707-700.

 

The HSC held that the charge failed to identify which of the five kinds of injury was in the pleading. It was required to plead “a bone fracture” and “a serious concussion.” It also noted that it would have been “prudent” to specific the injury by identifying the “left occipital skull fracture” and an “epidural hematoma, pneumocephale.”

 

And so the HSC held that because the pleading failed to be specific enough to identify which of the five types of injuries constituted the “substantial bodily injury,” it did not have to determine whether the statutory term needed to be included. See State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009).

The Prosecution’s Waived Argument about Discovery. The prosecution at oral argument argued that even the charge had been insufficient, disclosing materials in discovery provided him with adequate notice of the charges against him. This claim was made before the circuit court, but was never briefed before the ICA or in the petition before the HSC. The HSC deemed the “actual-knowledge” issue waived. Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(7). The dismissal was affirmed.

 

This is not a Wheeler Argument. Back in 2009, the HSC held in Wheeler that when a statutory term departs from the ordinary meaning of its words, the statutory term must be included in the pleading. That kicked off all kinds of litigation about various statutory terms. This issue is something different. Before we get to that, the HSC examined whether the pleading itself—regardless of whether it included the statutory term or not—offended Article I, Section 14 of the Hawai'i Constitution’s right to be informed of the nature of the charge. It didn’t and demanded a “detailed approach” to pleading when the terms are “generic.”

 

And this still begs the question. What would happen if the prosecution refiles with a charge identifying the skull fracture and concussion, but fails to include the statutory term? Are we back to Wheeler? Are both required? Stay tuned.