HSC “clarifies” forty-year-old test to determine whether offenses arise from one episode

 State v. Sardinha (HSC March 9, 2023)

Background. Bronson Sardinha’s appeal involves two cases. On November 28, 2015, Honolulu Police Department Officer Crystal Roe arrived at the intersection of Farrington Highway and Waipio Point Access Road in Waipahu. There was a traffic accident involving a damaged vehicle. The other vehicle that caused the accident fled the scene. Later, police tracked down Sardinha and cited him for multiple traffic offenses. He was charged with those traffic offenses in district court and pleaded no contest to inattention to driving. The district court convicted and sentenced him on March 16, 2016.

 

The other case involves assault. On the same night of the traffic citations, officers were called to Nancy’s Kitchen at the Waipio Shopping Center because a man and woman were arguing. When they got there, they separated the man, who turned out to be Sardinha, and the woman. Sardinha was outside and acted aggressively toward the officers. One of the officers noticed that Sardinha’s vehicle had damage to it. Officer Roe came to Nancy’s Kitchen and recognized Sardinha from past interactions. A warrant check showed that he was wanted on a contempt warrant and the police tried to detain him. Sardinha refused and headbutted one of the police officers. He was arrested and later indicted for assault of a law enforcement officer in the first degree. The indictment came down on March 8, 2016—eight days before he pleaded no contest to the traffic offense.

 

Sardinha moved to dismiss the indictment on the grounds that it should have been joined with the traffic offenses pursuant to HRS §§ 701-109 and 701-111. The circuit court, with the Hon. Judge Glenn J. Kim presiding, granted the motion. The State appealed. The ICA vacated the dismissal order and Sardinha petitioned the HSC for a writ of certiorari.

 

The Compulsory Joinder Statute and the Single-Episode Test. The subsequent prosecutions cannot arise from the same episode:

 

[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 tie of the commencement of the first trial and are within the jurisdiction of a single court.

 

HRS § 701-109(2). The statute ensures “defendants should have to face the expense and uncertainties of two trials based on essentially the same episode.” Commentary to HRS § 701-109(2). “It is designed 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 previously failed to convict the defendant.” State v. Carroll, 63 Haw. 345, 351, 627 P.2d 776, 780 (1981).

 

Determining when offenses arise from the same criminal episode is “based on whether the alleged conduct was so closely related in time, place and circumstances that a complete account of one charge cannot be related without referring to details of the other charge.” Id.

 

Justice Nakayama’s Restatement of the Single-Episode Test. Justice Nakayama, writing for the majority, broke down test into a restatement. HRS § 701-109(2) requires multiple offenses to be joined into a single trial when all three elements and sub-elements are met.

(1)         the offenses are based on the same conduct or arise from the same episode;

(2)  the offenses are all known to the appropriate prosecuting officer at the time of the commencement of the first trial; and

(3)      the offenses are within the jurisdiction of a single court.

HRS § 701-109(2). For the offenses to arise from the same episode in (1), the offenses must:

(a)        be so closely related in time that a complete account of one charge cannot be related without referring to details of the other charge;

(b)       be so closely related in place that a complete account of one charge cannot be related without referring to details of the other charge; and

(c)     be so closely related in circumstances that a complete account of one charge cannot be related without referring to details of the other charge.

State v. Carroll, 63 Haw. at 351, 627 P.2d at 780. When multiple offenses arise from a single episode, the State is barred from bringing related charges in a subsequent proceeding. HRS § 701-111(1)(b).

 

The “Circumstances” must be “legally and/or factually interrelated.” The HSC examined when the single-episode test came to Hawai'i. It was introduced in Carroll and came from State v. Boyd, 533 P.2d 795 (Or. 1975). The Oregon Supreme Court recognized that the prosecutions arise out of the same episode when they are “cross-related” to the point where “a complete account of one charge necessarily includes details of the other[.]” Id. at 799. Since then, the HSC has applied the test in Carroll, State v. Servantes, 72 Haw. 35, 804 P.2d 1347 (1991), and State v. Keliiheleua, 105 Hawai'i 174, 181, 95 P.3d 605, 612 (2004). The HSC explained that these cases show that it is not enough for the two cases to share some of the same facts.

 

“Our precedents make clear, instead, that multiple offenses arise from the same episode when the offenses are legally connected and/or share substantial factual overlap.”

 

The Restatement “Clarifies” that Probable Cause has nothing to do with it. The HSC also addressed State v. Akau, 118 Hawai'i 44, 185 P.3d 229 (2008), in which the Court held that offenses arise from the same “circumstances” when “the facts and circumstances of the first discovered offense provided sufficient probable cause to suspect that the defendant had committed or would commit the second discovered offense.” Id. at 57, 185 P.3d at 242. The HSC noted that this formulation of the test is “problematic” because multiple offenses can be closely related even when one offense does not give rise to probable cause of the other. Thus, probable cause is not dispositive in determining when multiple offenses are closely related in circumstances under the Boyd-Carroll test. Thus, Akau was wrongly decided to the extent that it required probable cause to compel joinder of multiple offenses.

 

The Traffic Offenses and the Assault were not so closely related in circumstances and the indictment did not violate HRS §§ 701-109(2) and 701-111(b). The HSC applied the newly restated test and held that there were no overlapping legal issues or shared material facts among the cases. First, it examined the elements of the traffic offense to which Sardinha pleaded. They are wholly unrelated to the elements of assault of a law enforcement officer in the first degree. “Based purely on the elements of the charges, any evidence that would establish that Sardinha was responsible for the Traffic Offenses would not establish that Sardinha assaulted a law enforcement officer, and vice versa.”

 

Second, there are shared facts meriting compulsory joinder. The HSC rejected Sardinha’s argument that on officers on cross-examination would have delved into the traffic offenses. The HSC held that the relevant inquiry is not what the defendant could show about the other offense, but whether “the prosecution can fairly put on a complete case without reference to the other offense.” The HSC affirmed the ICA’s decision to vacate the dismissal order.

 

Justice Wilson’s Dissent. Justice Wilson disagreed with the rest of the justices. The disagreement stems over the application of the single-episode test. Justice Wilson believed that the traffic offenses and the assault were closely related in time, place, and circumstance. He would have preserved the need to examine probable cause and called out the majority for “disregard[ing] forty years of precedent” by doing away with the probable cause analysis. He noted that just because the test comes from Oregon did not necessarily mean that the Court needed to adhere to it through the years. Justice Wilson also noted that this was not a deviation or even a clarification, but the adoption of a whole new rule. The whole point of this statute is to protect defendants from facing “expense and uncertainties of two trials based on essentially the same episode.” Commentary on HRS § 701-109(2). The holding for Justice Wilson thwarts that purpose. He would have vacated the ICA and upheld the dismissal order.