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Electronically Filed
Supreme Court
SCAP-15-0000440
14-DEC-2017
09:08 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
CHRISTOPHER DEEDY,
Petitioner/Defendant-Appellant.

SCAP-15-0000440
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-15-0000440; CR. NO. 11-1-1647)
DECEMBER 14, 2017
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ.,
WITH NAKAYAMA, J., DISSENTING
OPINION OF THE COURT BY POLLACK, J.
This is an interlocutory appeal from the orders of the
Circuit Court of the First Circuit (circuit court) denying
defendant Christopher Deedy’s motions to dismiss with prejudice

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the charges against him.

The motions sought to preclude a third

trial in this case based on federal and state constitutional
grounds, state statutory provisions, and the inherent power of
the trial court.

We affirm.
I. FACTS AND PROCEDURAL HISTORY

In the course of their altercation on November 5,
2011, Christopher Deedy fatally shot Kollin Elderts (the
deceased) at a fast food restaurant in Waikīkī.

Deedy was

indicted by a grand jury on November 16, 2011, charging him with
murder in the second degree (Hawaii Revised Statutes (HRS) §§
706-656 (1993 & Supp. 1996) and 707-701.5 (1993)) and carrying
or use of firearm in the commission of a separate felony (HRS §
134-21 (Supp. 2006)).
to August 2013.

The first trial was conducted from July

At the settling of the jury instructions, the

circuit court noted that both parties had asked that a
manslaughter instruction not be given and indicated that, from
what the court recalled, it “didn’t think there was any evidence
to support manslaughter anyway.”

The circuit court thereafter

instructed the jury only on the charged offenses.

The jury was

deadlocked and unable to reach a verdict, and the circuit court
found manifest necessity to declare a mistrial.

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A second trial was conducted a year later.1

At the

close of the evidence, the parties objected to submitting
instructions on the included offenses of reckless manslaughter,
assault in the first degree, and assault in the second degree on
the grounds that there was no evidentiary basis to instruct on
these offenses.

The circuit court overruled the parties’

objection and concluded that there was a rational basis in the
evidence to give jury instructions on reckless manslaughter and
the assault offenses.

After six and a half days of

deliberation, the jury acquitted Deedy of second-degree murder.
The jury was deadlocked on all of the included offenses.

The

circuit court thereafter entered a not guilty verdict on the
second-degree murder count and concluded that Deedy could be
retried on the included offenses on which the second jury was
hung.
On November 26, 2014, Deedy filed a motion to dismiss
the case under the United States Constitution, a motion to
dismiss under State v. Moriwake, 65 Haw. 47, 647 P.2d 705
(1982), a motion to dismiss under the Hawaii Constitution, and a
motion to dismiss under HRS §§ 701-109 to 701-111.
opposed Deedy’s dismissal motions.

1

The State

After Deedy filed an omnibus

The Honorable Karen S.S. Ahn presided over both trials.

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reply, the circuit court conducted a hearing on the motions.

At

the conclusion of the hearing, the circuit court orally ruled
against Deedy on his motion to dismiss brought pursuant to
Moriwake and later issued a written order denying the motion
that set forth findings of facts and conclusions of law.

The

circuit court, by minute order, also denied Deedy’s other
dismissal motions and later issued written orders denying these
motions.
The circuit court approved Deedy’s request to file an
interlocutory appeal of the court’s denial of Deedy’s dismissal
motions.

Deedy timely filed a notice of appeal, and the appeal

was transferred to this court.
II. ARGUMENTS ON APPEAL
Deedy contends that a third trial in his case is
barred based on multiple grounds: (1) principles of double
jeopardy under the state and federal constitutions; (2)
statutory provisions under the Hawaii Penal Code that preclude
further prosecution; (3) the circuit court’s abuse of its
discretion in failing to exercise its inherent authority to
dismiss the case with prejudice; and (4) his immunity from State
prosecution under the Supremacy Clause of the federal
constitution.

Deedy urges this court to vacate the circuit

court’s orders, hold one or more of his constitutional or other
claims meritorious, and remand this case for entry of dismissal
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with prejudice.

The State counters that Deedy’s arguments are

without merit and also contends that Deedy has waived his claims
by raising them in an untimely manner.
III. STANDARDS OF REVIEW
A. Double Jeopardy
Whether double jeopardy principles require the
dismissal of a criminal charge is “a question of constitutional
law that we review under the right/wrong standard of review.”
State v. Deguair, 136 Hawaii 71, 85, 358 P.3d 43, 57 (2015)
(quoting State v. Toyomura, 80 Hawaii 8, 15, 904 P.2d 893, 900
(1995)).
B. Statutory Construction
Statutory construction “presents questions of law that
are reviewed de novo under the right/wrong standard.”

State v.

King, 139 Hawaii 249, 253, 386 P.3d 886, 890 (2016) (quoting
State v. Lei, 95 Hawaii 278, 281, 21 P.3d 880, 883 (2001)).
C. Moriwake Analysis
A trial court’s application of State v. Moriwake to a
motion to dismiss an indictment is reviewed for an abuse of
discretion.

See State v. Hinton, 120 Hawaii 265, 278—80, 204

P.3d 484, 498—99 (2009).
The trial court abuses its discretion when it clearly
exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment
of a party litigant. The burden of establishing abuse of

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discretion is on appellant, and a strong showing is
required to establish it.

State v. Deguair, 136 Hawaii 71, 84–85, 358 P.3d 43, 56–57
(2015) (quoting Hinton, 120 Hawaii at 273, 204 P.3d at 492).
D. Supremacy Clause Immunity
“Supremacy Clause immunity dismissals present a mixed
question of law and fact and are reviewed de novo.”

Wyoming v.

Livingston, 443 F.3d 1211, 1226 (10th Cir. 2006).
IV. DISCUSSION
A. Waiver and Forfeiture
As a preliminary matter, the State asserts that Deedy
has waived or forfeited claims based upon his double jeopardy
and federal immunity motions because the motions were filed well
after the conclusion of the second trial.

As support for its

position, the State relies upon Hawaii Rules of Penal Procedure
(HRPP) Rule 12 (2015), which provides, inter alia, that motions
regarding “defenses and objections based on defects in the
institution of the prosecution” must be raised prior to trial
and “within 21 days after arraignment unless the court otherwise
directs.”

2

HRPP Rule 12(b)(1), (c) (emphasis added).2

Failure by

HRPP Rule 12 provides, in relevant part:
(b) Pretrial motions. Any defense, objection, or
request which is capable of determination without the trial
of the general issue may be raised before trial by motion.
(continued . . .)

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a party to file pretrial motions in compliance with subsections
(b) and (c) of HRPP Rule 12 “shall constitute waiver thereof,”
subject to the court’s authority to “grant relief from the
waiver.”

HRPP Rule 12(f).
HRPP Rule 12(b)(1), however, does not apply in this

case because the second retrial was not an “institution of [a]
prosecution.”

“A prosecution is commenced either when an

indictment is found or a complaint filed, or when an arrest
warrant or other process is issued, provided that such warrant
or process is executed without unreasonable delay.”
108(5) (1993 & Supp. 2006).

HRS § 701-

Thus, a retrial is a continuation

of a prosecution that was already instituted, State v. Mundon,
129 Hawaii 1, 14 n.22, 292 P.3d 205, 219 n.22 (2012) (citing
United States v. Bailin, 977 F.2d 270, 276 (7th Cir. 1992)), and
HRPP Rule 12(b)(1) is accordingly not applicable to a retrial.
(. . . continued)
Motions may be written or oral at the discretion of the
judge. The following must be raised prior to trial:
(1) defenses and objections based on defects in the
institution of the prosecution;
. . . .
(c) Motion date. Pretrial motions and requests must
be made within 21 days after arraignment unless the court
otherwise directs.
. . . .
(f) Effect of failure to raise defenses or
objections. Failure by a party to raise defenses or
objections or to make requests which must be made prior to
trial, within the time set by the court pursuant to section
(c), or within any extension thereof made by the court,
shall constitute waiver thereof, but the court for cause
shown may grant relief from the waiver.

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Further underscoring the rule’s inapplicability is its
requirement that “[p]retrial motions and requests must be made
within 21 days after arraignment unless the court otherwise
directs.”

HRPP Rule 12(c).

Arraignment takes place at the

commencement of a prosecution, and no new arraignment is had
after a mistrial and before a retrial.
(2008); HRPP Rule 10 (2008).

See HRPP Rule 5(b)

It would therefore not be possible

to comply with the HRPP Rule 12(b)(1) deadline for pretrial
motions if its requirements were imposed on motions concerning
issues relating to a retrial.

Accordingly, HRPP Rule 12(b)(1)

does not apply to motions filed with respect to a retrial, and
we therefore consider the merits of all the contentions that
Deedy has asserted in his appeal.
B. Double Jeopardy Principles Under the State and Federal
Constitutions
Deedy contends that a third trial is barred by the
double jeopardy clauses of article I, section 10 of the Hawaii
Constitution and the Fifth Amendment to the U.S. Constitution.3
The double jeopardy clause of the State and federal
constitutions “forbid[] a second trial for the purpose of
affording the prosecution another opportunity to supply evidence
3

Deedy’s arguments in support of his state constitutional double
jeopardy claims parallel those he makes in support of his federal double
jeopardy claims, and accordingly, they are discussed together.

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which it failed to muster in the first proceeding.”

State v.

Quitog, 85 Hawaii 128, 140, 938 P.2d 559, 571 (1997) (quoting
Burks v. United States, 437 U.S. 1, 11 (1978)).

“Double

jeopardy protects individuals against: (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

(quoting State v. Ontiveros, 82 Hawaii 446, 450, 923 P.2d 388,
392 (1996)).
Deedy raises three arguments to support his
constitutional double jeopardy claims: (1) the State abandoned
reckless manslaughter and the assault offenses by its trial
strategy; (2) the circuit court’s ruling in the first trial with
respect to the submission of jury instructions on the included
offenses constituted an acquittal of the reckless manslaughter
and the assault offenses; and (3) even assuming that double
jeopardy has not attached, the doctrine of collateral estoppel
precludes a third trial.
1. Quitog Abandonment of Reckless Manslaughter and the Assault
Offenses
Deedy contends that the State abandoned the reckless
manslaughter and assault offenses and is thus barred from
retrying him for these offenses under the principles enunciated
in State v. Quitog, 85 Hawaii 128, 938 P.2d 559 (1997).

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In Quitog, this court held that the double jeopardy
clause of the Hawaii Constitution “bar[s] a retrial of the
defendant as to the originally charged offense” if the following
prerequisites are satisfied:
during final argument in a criminal prosecution for [the
originally charged offense], (1) the prosecution abandons
its initial position that the defendant is guilty as
charged by (a) expressly conceding that he is not and (b)
exhorting the jury to convict the defendant of one of
several included offense as to which the trial court has
instructed the jury, (2) the jury deadlocks by virtue of
its inability to reach a unanimous agreement regarding the
particular offense, if any, of which the defendant has been
proved guilty, (3) the trial court declares a mistrial
based upon “manifest necessity,” and (4) the prosecution
could have presented the jury with the theory that it
subsequently wishes to advance on retrial.

Quitog, 85 Hawaii at 129–30, 938 P.2d at 560–61.

Said another

way, “the Hawaii Constitution ‘bars retrial for [a] charge when
the government’s deliberate trial strategy’--which is completely
incompatible with another approach that it could have pursued,
but expressly chose not to--accompanies the termination of ‘the
first trial . . . without the jury passing upon that charge.’”
Id. (quoting United States v. Cavanaugh, 948 F.2d 405, 417 (8th
Cir. 1991)).

This test was derived from federal courts of

appeals cases, as noted in this court’s opinion in Quitog.

Id.

at 148—49, 938 P.2d at 579—80 (citing Cavanaugh, 948 F.2d at 413
(concluding that the government at trial abandoned the theory
that there were two separate criminal acts--assault and murder-because the government presented the acts that allegedly
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constituted assault as an integral part of the actual murder);
Sizemore v. Fletcher, 921 F.2d 667, 673 (6th Cir. 1990) (ruling
that a second trial may be “barred by double jeopardy” if “the
first trial ended without a verdict for reasons of the
prosecution’s making”); Saylor v. Cornelius, 845 F.2d 1401,
1403, 1408 (6th Cir. 1988)).
Deedy maintains that all of the Quitog requirements
were met in this case: the State abandoned the initial position
it took in the indictment, which allowed for conviction of the
included offenses, by (1) conceding that the evidence it adduced
did not support finding him guilty of any included offense and
by so exhorting the second jury; (2) the second jury deadlocked
on the included offenses; (3) the circuit court tacitly found
manifest necessity and declared a mistrial; and (4) the State
could have presented the second jury with the theories
underlying the included offenses.
The circumstances of Quitog are markedly different
from this case.

At the outset, Quitog applies in situations

where the State “abandons its initial position that the
defendant is guilty as charged.”
P.2d at 560 (emphasis added).

Quitog, 85 Hawaii at 129, 938

Deedy is essentially attempting

to apply Quitog in reverse: that is, the State ostensibly
abandons the position that the defendant could also be guilty of
the included offenses by focusing on the charged offense and by
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imploring the factfinder to find the defendant guilty as
charged.

Based on the clear language of Quitog, this sort of

reverse application was never contemplated; accordingly, in
cases where the State focuses on the charged offense, the
concept of abandonment adopted by this court in Quitog does not
apply, and the State is not precluded from proceeding with a
retrial of the defendant on the included offenses of the charged
offense.

See Quitog, 85 Hawaii at 129, 938 P.2d at 560.
Further, even assuming that the Quitog framework

applies, the facts of this case do not demonstrate abandonment
of reckless manslaughter and the assault offenses.

The

defendant in Quitog was charged with attempted murder in the
second degree; however, during the State’s closing argument at
trial, the deputy prosecutor stated, in pertinent part, the
following:
[BY THE DPA]: . . .
What I am about to tell you will probably surprise many, if
not all of you.
[Quitog] is charged with Attempted Murder in the Second
Degree, among other things. He is not guilty of Attempted
Murder in the Second Degree. . . . .
Now, as I argued to you at the outset, [Quitog] is not
guilty of Attempted Murder because there was no intent to
kill. I’ll admit that. The [prosecution] does not seek a
conviction of Attempted Murder in the Second Degree. Well,
let me tell you something else. He’s also not guilty of
Attempted Manslaughter because Attempted Manslaughter
requires reckless conduct.
. . .

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He’s guilty of Assault in the First Degree. He’s guilty of
intentionally or knowingly causing serious bodily injury. .
. . [D]on’t convict him either of Assault in the Second
Degree or Assault in the Third Degree because he did much
more than that; . . . the injuries he created and what was
on his mind, his state of mind, was more than recklessly;
was more than substantial bodily injury; and was more than
bodily injury. That’s why the [prosecution] asks you to
convict him of Assault in the First Degree.

Quitog, 85 Hawaii at 132–33, 938 P.2d at 563–64 (footnote
omitted).
This court determined, based on the deputy
prosecutor’s final argument, that the State abandoned the
charged offense of attempted murder in the second degree.
at 149, 938 P.2d at 580.

Id.

We reached this conclusion because the

State could have presented this theory to the original jury but
chose not to and because the trial terminated without a
determination of guilt or innocence on the charged offense
following “a deliberate, tactical decision by the prosecution.”
Id. (quoting Cavanaugh, 948 F.2d at 416).
In contrast, the deputy prosecutor at the second trial
did not exhort the jury to acquit Deedy of reckless manslaughter
and the assault offenses.

During the second trial, the State

explicitly discussed the possibility that the jury could convict
Deedy of an included offense if the jury found it appropriate to
do so:
You have also heard from the Court that there
are other counts you may consider if you feel it is
necessary at a certain point in your deliberations. They

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are Reckless Manslaughter and Manslaughter as a Result of
Extreme Mental or Emotional Disturbance.
The state of mind for the Reckless Manslaughter
is self-explanatory. It’s reckless. And you have heard
the definition of what reckless conduct is. It’s reckless
as opposed to intentional and knowing, which is what Murder
Second requires.
The second manslaughter option relates to a
situation in which the defendant intentionally causes the
death of [the deceased], but he does so while under extreme
emotional distress. This type of manslaughter is a defense
that the defendant must prove to you. That is his burden
in this case for that defense.
. . . Other charges that the Court has given
you to consider -- at a certain point in your deliberation,
if you feel that you need to, include Assault in the First
Degree, and Assault in the Second Degree. Now, like the
difference between Murder 2 and Reckless Manslaughter, the
Assault charges incorporate the intentional and reckless
states of mind. Assault 1 would be intentional, Assault 2,
reckless. The difference between the Murder/Manslaughter
charges and the Assault 1, Assault 2 charges is what
happens, the consequence of the action.
. . .
I urge you to carefully consider all of the
instructions as given. In doing so, you will find that
there is only one charge which is supported by the credible
evidence in this case, and that is the original charge of
Murder in the Second Degree.

Additionally, the jury acquitted Deedy of the charged
offense in this case unlike in Quitog, where the jury deadlocked
on the charged offense.
at 576–77.

Quitog, 85 Hawaii at 145–46, 938 P.2d

Thus, the resolution of this case also does not meet

Quitog’s second requirement that the factfinder deadlocks with
respect to the charged offense.

Id. at 129, 938 P.2d at 560.

Relatedly, the third Quitog requirement is also not satisfied in

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this case because, unlike in Quitog, where the mistrial was
declared with respect to the charged offense, the declaration of
a mistrial in this case was made only with respect to reckless
manslaughter and the assault offenses; Deedy was acquitted of
the charged offense of second-degree murder.
P.2d at 566.

Id. at 135, 938

Finally, the fourth Quitog requirement is not met

because, unlike in Quitog, the State in this case did not
“expressly conced[e]” that Deedy was not guilty of reckless
manslaughter and the assault offenses and, in fact, “presented
the [second] jury with the theory that it subsequently wishes to
advance on retrial.”

Id. at 129–30, 938 P.2d at 560–61; cf.

Cavanaugh, 948 F.2d at 413, 417.
Based on the foregoing, it cannot be said that the
State abandoned reckless manslaughter and the assault offenses.
The State’s trial strategy of primarily arguing that the
evidence supports a conviction on second-degree murder does not
demonstrate, contrary to Deedy’s contention, that the State
abandoned reckless manslaughter and the assault offenses.
Urging the jury to convict on the original charge is not the
type of statements or acts that the Quitog court determined as
constituting abandonment: the State in this case did not go “out
on a limb” to take reckless manslaughter and the assault
offenses “off the table.”
577.

Quitog, 85 Hawaii at 146, 938 P.2d at

Thus, Quitog and its federal counterparts do not bar a
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retrial on reckless manslaughter and the included assault
offenses.
2. Acquittal
Deedy next contends that, under the double jeopardy
clause of the state and federal constitutions, he may not be
retried for reckless manslaughter and the included assault
offenses because the circuit court’s ruling at the first trial-that there was no rational basis in the evidence to support a
reckless manslaughter jury instruction--constituted an acquittal
for purposes of double jeopardy.4
Deedy reasons that the circuit court’s finding that
there was no rational basis to support a reckless manslaughter
charge necessarily implies that the State would not have been
able to overcome a judgment of acquittal, which is governed by a
higher standard than “rational basis.”

Deedy argues that this

court should find the circuit court’s refusal to issue a
reckless manslaughter jury instruction as sufficient to bar a
retrial on that charge.

According to Deedy, the circuit court’s

independent conclusion in the first trial that the evidence did

4

Deedy similarly contends that the State is precluded from
retrying the firearm offense, which is dependent on Deedy’s commission of a
separate felony. Correlatively, in each instance where Deedy argues that he
had already been acquitted of reckless manslaughter and the assault offenses-e.g., collateral estoppel, discussed infra--his respective argument is that
he may not be retried on the firearm offense as well.

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not rationally support a reckless manslaughter instruction
establishes his lack of criminal culpability for that offense
and satisfies the U.S. Supreme Court’s definition of an
“acquittal” in Evans v. Michigan, 568 U.S. 313 (2013).5
It is beyond dispute that “[t]he constitutional
guarantee against double jeopardy ‘protects against a second
prosecution for the same offense after acquittal.’”

State v.

Lee, 91 Hawaii 206, 209, 982 P.2d 340, 343 (1999) (footnote
omitted) (quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969)).

This court has adopted the Supreme Court’s test in

determining whether a defendant is deemed acquitted: “A
defendant is acquitted only when ‘the ruling of the judge,
whatever its label, actually represents a resolution [in
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) (alteration in original)
(quoting United States v. Martin Linen Supply Co., 430 U.S. 564,
571 (1991)).
5

Deedy quotes Evans’s definition of an “acquittal”: “An
‘acquittal’ includes a ruling by the court that the evidence is insufficient
to convict, a factual finding that necessarily establishes the criminal
defendant’s lack of criminal culpability, and any other ruling which relates
to the ultimate question of guilt or innocence.” (Quoting Evans, 568 U.S. at
319.) The State responds that Evans is distinguishable because the trial
court in that case expressly ruled in favor of the defendant’s motion for a
judgment of acquittal based upon the court’s conclusion that the State failed
to provide sufficient evidence to establish a particular element of the
offense.

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As an initial matter, the “acquittal” rule does not
apply to lesser included offenses where the greater charge has
not been resolved by the factfinder, as was the case in Deedy’s
first trial.

Cases decided by this court and the Supreme Court

did not involve the situation postulated by Deedy--where the
defendant is deemed to have been acquitted of included offenses
for double jeopardy purposes even though resolution of a greater
charge is pending.

See State v. Poohina, 97 Hawaii 505, 510, 40

P.3d 907, 912 (2002); Dow, 72 Haw. at 65, 806 P.2d at 407;
Evans, 568 U.S. at 315-16; Martin Linen Supply Co., 430 U.S. at
571-72.
HRPP Rule 29(a) also sheds light on the faulty nature
of Deedy’s argument.

The rule states in relevant part as

follows:
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) (1977).

This rule provides no authority for a

trial court to acquit a defendant of an included offense without
first acquitting the defendant of the greater charge then
pending before the factfinder.

That is, HRPP Rule 29(a) would

not have allowed the circuit court in this case to acquit Deedy
of the included offenses of reckless manslaughter, assault in
the first degree, and assault in the second degree without first

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acquitting him of second-degree murder.
29(a) operates in reverse.

In fact, HRPP Rule

When a court grants a motion for a

judgment of acquittal, the court must consider whether the
evidence would be sufficient to sustain a conviction of an
included offense.

2A Charles Alan Wright, Peter J. Henning, &

Sarah N. Welling, Federal Practice and Procedure § 467 (4th
ed.); United States v. Hawpetoss, 388 F. Supp. 2d 952, 957 (E.D.
Wis. 2005) (“[B]ecause a defendant may be found guilty of a
lesser offense necessarily included in the offense charged in
the indictment, a court confronted with a Rule 29 motion at the
close of the evidence must also consider whether the evidence
would be sufficient to sustain a conviction of such a lesser
offense.”).6

Consequently, contrary to Deedy’s contention, a

court lacks authority to grant a judgment of acquittal of
included offenses before granting an acquittal of the greater
offense, and indisputably, the circuit court did not grant an
acquittal of the greater offense in the first trial in this
case.

6

Federal Rules of Criminal Procedure (Fed. R. Crim. P.) Rule 29 is
substantially similar to HRPP Rule 29, and interpretation by the federal
courts of Fed. R. Crim. P. Rule 29 may be used to guide this court’s own
interpretation of HRPP Rule 29. See State v. Crisostomo, 94 Hawaii 282, 287–
88, 12 P.3d 873, 878–79 (2000) (“Because HRPP Rule 24(c) is nearly identical
to its federal counterpart, i.e., Federal Rules of Criminal Procedure (FRCrP)
Rule 24(c) (1999), this court may look to parallel federal law for guidance.”
(footnote omitted)).

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In addition, a trial court’s decision resolving the
issue of whether to give or withhold certain jury instructions
is not a “resolution . . . of some or all of the factual
elements of the offense charged” and, thus, does not constitute
an acquittal.

Dow, 72 Haw. at 65, 806 P.2d at 407 (alteration

in original) (quoting Martin Linen Supply Co., 430 U.S. at 571).
As this court has previously explained, whether a trial court
must give a particular jury instruction is “a question of law
based on an objective juror standard.”

State v. Taylor, 130

Hawaii 196, 207, 307 P.3d 1142, 1153 (2013).

In State v.

Maelega, the court explained that the determination of whether
to instruct the jury on the defense of extreme mental or
emotional disturbance (EMED) called for the court’s “legal
conclusion” that the defendant “had met his burden of production
by coming forward with evidence at trial to support his defense
of EMED manslaughter.”

80 Hawaii 172, 177 n.8, 907 P.2d 758,

763 n.8 (1995); see also id. at 179 n.10, 907 P.2d at 765 n.10
(emphasizing that whether a particular instruction should be
given to the jury is a legal “question that should be decided by
the trial court as a matter of law”).
This means that the circuit court’s conclusion in this
case that the jury should not be instructed on included offenses
was a determination of a legal question--i.e., whether there was

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a rational basis to instruct the jury on included offenses--and
not a resolution of any of the factual elements determinative of
a person’s guilt of the included offenses.

See Taylor, 130

Hawaii at 207, 307 P.3d at 1153; Maelega, 80 Hawaii at 177 n.8,
179 n.10, 907 P.2d at 763 n.8, 765 n.10.

Thus, the court’s

decision not to instruct the jury on included offenses is not an
acquittal for the purposes of double jeopardy.

Cf. Dow, 72 Haw.

at 65, 806 P.2d at 407 (stating that a ruling is an acquittal
under double jeopardy principles if it resolves some or all of
the factual elements of the charged offense).
Deedy’s argument is also unavailing when the procedure
underlying whether to give instructions on lesser included
offenses is examined.

The United States Supreme Court and

several other jurisdictions have characterized the test
governing the issuance of jury instructions on lesser included
offenses as a “procedural safeguard” that is “especially
important” in cases where the failure to instruct “on a lesser
included offense would seem inevitably to enhance the risk of an
unwarranted conviction.”

Beck v. Alabama, 447 U.S. 625, 637

(1980); accord State v. Morales, 673 N.W.2d 250, 254–55 (N.D.
2004); State v. Tweed, 491 N.W.2d 412, 416 (N.D. 1992); State v.
Powell, 154 P.3d 788, 796–97 (Utah 2007); State v. Dahlin, 695
N.W.2d 588, 597 (Minn. 2005); State v. Andrade, 954 P.2d 755,
758 (N.M. Ct. App. 1997).

The Commentary on the Model Penal
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Code (MPC) has also described the test as “procedural in
nature.”

Model Penal Code and Commentaries § 1.07, cmt. 5 at

129 & n.106 (Official Draft and Revised Comments 1985)
[hereinafter MPC Commentaries].

Accordingly, a trial court’s

ruling on whether to issue jury instructions on lesser included
offenses does not constitute an acquittal for double jeopardy
purposes.

See Evans, 568 U.S. at 319-20 (explaining that

procedural rulings that result in dismissals are not acquittals
that implicate double jeopardy concerns).
Finally, the manner in which Deedy urges this court to
apply the “acquittal” rule and the practical effects of such an
application are at odds with this court’s precedents governing
the ramifications of the trial court’s failure to give jury
instructions on lesser included offenses when certain
prerequisites have been satisfied.

It is well established that

“trial courts shall instruct juries as to any included offenses
having a rational basis in the evidence without regard to
whether the prosecution requests, or the defense objects to,
such an instruction.”

State v. Adviento, 132 Hawaii 123, 140,

319 P.3d 1131, 1148 (2014) (quoting State v. Haanio, 94 Hawaii
405, 407, 16 P.3d 246, 248 (2001), overruled in part on other
grounds by State v. Flores, 131 Hawaii 43, 314 P.3d 120 (2013)).
Failure to do so will result in the vacatur of the trial court’s

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judgment and a remand for a new trial.

Id. at 152, 319 P.3d at

1160 (remanding the case for a new trial because of the circuit
court’s failure to instruct the jury on extreme mental or
emotional disturbance).
Under Deedy’s approach, whenever a trial court
determines that jury instructions on lesser included offenses
are not required and an appellate court disagrees, the appellate
court could not remand the case for a retrial because doing so
would offend double jeopardy principles.

Yet precedents from

this court have expressly provided for this result.

Flores, 131

Hawaii at 58, 314 P.3d at 135 (remanding for a retrial because
the court failed to instruct the jury on an included offense);
Adviento, 132 Hawaii at 152, 319 P.3d at 1160; State v. Faamama,
139 Hawaii 94, 101, 384 P.3d 870, 877 (2016) (holding that the
circuit court’s failure to give instructions on the included
offense of theft in the second degree required remand for a
retrial).7

Therefore, Deedy was not acquitted of reckless

manslaughter and the assault offenses within the meaning of
“acquittal” under both the Hawaii and federal constitutions.

7
Further, if a trial court’s determination to not submit jury
instructions on lesser included offenses were deemed an acquittal of the
included offenses, then the legal consequence would also be an acquittal of
the greater offense when the lesser included offense “is established by proof
of the same or less than all the facts required to establish the commission
of the offense charged.” See HRS § 701-109(4)(a) (2014).

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3. Collateral Estoppel
Deedy argues that, even assuming that double jeopardy
has not attached, the doctrine of collateral estoppel stemming
from the double jeopardy clauses of the State and federal
constitutions precludes the State from trying him a third time.
Deedy maintains that the State is collaterally estopped from
retrying him on reckless manslaughter and the included assault
offenses because the circuit court, at the first trial, had
already acquitted him of these charges.

According to Deedy, he

was acquitted when the circuit court ruled that there was no
evidence to support a reckless manslaughter instruction because
the evidence does not factually support a finding of
recklessness.

Thus, Deedy concludes that the issue of whether

he had a reckless state of mind when he fired the lethal shot
may not be relitigated at a third trial.

The State responds

that, during the settling of jury instructions at the first
trial, the circuit court “neither considered the application of
the reckless state of mind to each element of reckless
manslaughter nor made any such findings.”
The doctrine of “collateral estoppel means that ‘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

Hawaii 1, 14, 292 P.3d 205, 218 (2012) (quoting Ashe v. Swenson,
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397 U.S. 436, 443 (1970)).

Collateral estoppel “is a principle

embodied in the right against double jeopardy, and precludes
relitigation of issues already decided, even when double
jeopardy is not necessarily implicated.”

Id. (citing Ashe, 397

U.S. at 443).
In Ashe--the case from which this court adopted the
collateral estoppel principle--the defendant, who allegedly
robbed individuals engaged in a poker game, was acquitted by a
jury of the charged offense with respect to one of the victims
and was then found guilty of the same offense with respect to
another victim.

Ashe, 397 U.S. at 438—39.

The Supreme Court

concluded that,
[o]nce 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.
In this case, there was no determination that Deedy
was not guilty of reckless manslaughter or the assault offenses
because the circuit court’s determination at the first trial
that jury instructions on the included offenses were not to be
given was not tantamount to an acquittal, see supra, and
because, at the second trial, the jury was deadlocked on these
included offenses.

Accordingly, the State is not collaterally

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estopped under the Hawaii or federal constitution from retrying
Deedy on these offenses.8
C. Statutory Provisions Affecting Further Prosecution
In addition to his state and federal double jeopardy
claims, Deedy contends that pursuant to HRS §§ 701-109(2)
(1993), 701-110(1) (1993), and 701-111(1)(a) and (1)(c) (1993),
he may not be retried for reckless manslaughter and the included
assault offenses.
1. HRS § 701-109(2)
Deedy asserts that HRS § 701-109(2) bars a third trial
on reckless manslaughter and the included assault offenses.

HRS

§ 701-109(2) provides as follows:
8

The dissent, sua sponte, relies on plain error to argue that the
State is barred from retrying Deedy by judicial estoppel rather than
collateral estoppel as Deedy maintains. Dissent at 4-8. No party has raised
this argument at any stage of the proceeding, and it is incorrect in any
event. The dissent contends that the State may not now argue that Deedy is
guilty of reckless manslaughter because this stance is inconsistent with the
State’s position at both trials. The dissent maintains that the State’s
position that a reckless manslaughter instruction was not required
necessarily implied that there was no rational basis in the evidence for
finding Deedy guilty of reckless manslaughter. Dissent at 5 (citing Flores,
131 Hawaii at 51, 314 P.3d at 128).
However, it is not the State that determines whether there is a
rational basis in the evidence for an included instruction. Adviento, 132
Hawaii at 140, 319 P.3d at 1149. The State’s position regarding the
submission of an included offense instruction to the jury is irrelevant to
whether Deedy can be retried. And, it was similarly irrelevant to the
State’s ability to discuss in closing argument the applicability of the
court’s included instructions (as the State did in the second trial).
Unequivocally, the State’s assessment of the evidence as it pertained to the
submission of included offense jury instructions at an earlier trial does not
estop the State from retrying the defendant on an included offense on which
the jury deadlocked.

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(2) Except as provided in subsection (3) of this section, 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) (emphasis added).
HRS § 701-109(2) has previously been labeled by this
court as the “compulsory joinder” law, in that it “acts as a
procedural limitation upon the State’s power under HRS § 701109(1) to seek convictions for all offenses resulting from a
single course of conduct.”
P.2d 1044, 1047 (1978).

State v. Aiu, 59 Haw. 92, 95–96, 576

The Commentary on HRS § 701-109 states

that “[s]ubsection (2) requires joinder of the trials of two or
more offenses based on the same conduct.”

HRS § 701-109 cmt.;

accord State v. Carroll, 63 Haw. 345, 351, 627 P.2d 776, 780
(1981).9

“Section 701-109(2) 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.”
v. Servantes, 72 Haw. 35, 38, 804 P.2d 1347, 1348 (1991).

State
The

Servantes court noted that the joinder requirement of HRS § 7019

HRS § 701-109(2) was patterned after MPC § 1.07(2), and the
commentary on MPC § 1.07(2) is in accord with this court’s interpretation of
the requirements of HRS § 701-109(2): “It requires the prosecution to join in
one trial all offenses based on the same conduct or arising from the same
criminal episode.” MPC Commentaries § 1.07, cmt. 3 at 116.

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109(2) “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 failed to convict the defendant.”

Id.

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.

Instead, HRS §

701-109(2) applies where there are charges arising from the same
conduct or the same episode and the State attempts to try those
charges separately.

See, e.g., Carroll, 63 Haw. at 346–53, 627

P.2d at 777 (stating that the defendant was charged in the
circuit court with attempted criminal property damage in the
second degree and was previously acquitted in an earlier
district court trial of possession of an obnoxious substance,
but holding that the separate charges were based on distinct
courses of conduct).

In this case, Deedy was not being charged

separately for the same course of conduct; there is but one
criminal action filed in the circuit court.

As discussed supra,

a retrial on reckless manslaughter and the included assault
offenses is merely a “continuation” of the same prosecution
following the declaration of a mistrial when the jury was
deadlocked as to those offenses.

See State v. Mundon, 129

Hawaii 1, 14 n.22, 292 P.3d 205, 219 n.22 (2012) (quoting United
States v. Bailin, 977 F.2d 270, 276 (7th Cir. 1992)).
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2. HRS § 701-110(1)
Deedy further argues that a third trial on reckless
manslaughter and the included assault offenses is barred by HRS
§ 701-110(1), which provides as follows:
When a prosecution is for an offense under the same
statutory provision and is based on the same facts as a
former prosecution, it is barred by the former prosecution
under any of the following circumstances:
(1) 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) (emphasis added).
In pertinent part, the Commentary on HRS § 701-110
states that this statute “bars a new prosecution for an offense
under the same statutory provision and based upon the same facts
as a former prosecution when there is an acquittal.”
110 cmt.

HRS § 701-

The statute has been previously applied by this court

in cases involving a conviction of a lesser included offense
that barred a retrial on the greater offense, since the
conviction of the lesser included offense is an acquittal of the
greater offense.

For example, in State v. Feliciano, 62 Haw.

637, 618 P.2d 306 (1980), superseded by statute on other grounds
as stated in State v. Kalaola, 124 Hawaii 43, 52, 237 P.3d 1109,

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1118 (2010), we held that a retrial on the originally charged
greater offense was barred by HRS § 701-110(1) because “[t]he
jury conviction in the first trial on the lesser included
offense automatically acquitted the appellant of the greater
charge in the indictment.”

Id. at 644, 618 P.2d at 311.

Because of that automatic acquittal, HRS § 701-110(1) precluded
a retrial on the greater charge.
In this case, the acquittal in the second trial was
only as to the original charge of second-degree murder and not
as to any of the included offenses.

If the State were

attempting to retry Deedy for the initially charged offense of
murder in the second degree under the same statutory provision,
then HRS § 701-110(1) would bar such an attempt.

But, instead,

the State seeks to retry Deedy on the included offenses of
reckless manslaughter, assault in the first degree, and assault
in the second degree--of which he was not acquitted--given that
the second jury was hung as to these offenses.

Further,

contrary to Deedy’s position, the circuit court’s non-submission
of jury instructions on these included offenses in the first
trial did not constitute an acquittal.

See supra.

Accordingly,

HRS § 701-110(1) does not bar a retrial on reckless manslaughter
and the included assault offenses.

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3. HRS § 701-111(1)(a) and (1)(c)
Deedy asserts that a third trial is also barred by HRS
§ 701-111(1)(a) and (1)(c), which states as follows:
Although a prosecution is for a violation of a different
statutory provision or is based on different facts, it is
barred by a former prosecution under any of the following
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).

At the outset, HRS § 701-111 has no

application in this case 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, 421–22 (1989),
overruled on other grounds by State v. Dow, 72 Haw. 56, 806 P.2d
402 (1991) (emphasis added).

This statute “was not intended 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.

In this case, a retrial on reckless manslaughter and
the included assault offenses will not be a “new prosecution”
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because, as discussed supra, it will merely be a “continuation”
of the original prosecution.

State v. Mundon, 129 Hawaii 1, 14

n.22, 292 P.3d 205, 219 n.22 (2012) (quoting United States v.
Bailin, 977 F.2d 270, 276 (7th Cir. 1992)); HRS § 701-108(5)
(1993 & Supp. 2006).
In addition, even assuming that HRS § 701-111 applies
in the context of a retrial, Deedy’s argument--predicated on HRS
§ 701-111(1)(a)--would be without merit because this subsection
does not apply where, as here, the factfinder acquits the
defendant of the greater offense but is deadlocked as to the
lesser included offenses of the greater offense.

MPC

Commentaries § 1.09 cmt. 2 at 157 n.5 (noting that MPC §
1.09(1)(a), which is identical to HRS § 701-111(1)(a), does not
bar a retrial on lesser included offenses “where there is an
acquittal of the greater offense and a mistrial is properly
declared with respect to the lesser offense”); People v.
Jenkins, 354 N.E.2d 139, 140 (Ill. App. Ct. 1976) (where the
jury acquitted the defendant of the greater offense but failed
to agree as to the included offenses, Illinois’s statute that
parallels HRS § 701-111(1)(a) does not bar a retrial on the
included offenses).

Accordingly, HRS § 701-111(1)(a) and (1)(c)

does not bar a retrial on reckless manslaughter and the included
assault offenses.

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D. Moriwake Claim
Deedy next argues that the circuit court erroneously
denied his motion to dismiss, brought pursuant to this court’s
decision in State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982),
because the court misapplied and misapprehended the factors
relevant to the determination of whether dismissal is
appropriate.

In Moriwake, we held that trial courts, “[w]ithin

the bounds of duly exercised discretion,” may in appropriate
circumstances “dismiss[] an indictment 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.”

Id. at 55, 647 P.2d at 711.

In making a determination as to whether to dismiss an
indictment, the role of a trial court is to 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 (quoting State

v. Braunsdorf, 297 N.W.2d 808, 817 (1980) (Day, J.,
dissenting)).

The factors that the court should consider in

undertaking this balance include the following:
(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

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respective counsel, particularly that of the prosecuting
attorney.

Id. at 56–57, 647 P.2d at 712–13.
“Nothing in Moriwake indicates that all factors must
be given equal weight or that certain factors must be given more
weight than others.”
P.3d 484, 499 (2009).

State v. Hinton, 120 Hawaii 265, 280, 204
In reviewing the propriety of a trial

court’s exercise of its discretion to dismiss an indictment,
this court “accord[s] deference to the conclusion of the trial
court.”

Moriwake, 65 Haw. at 56, 647 P.2d at 712.

We will not

vacate a trial court’s Moriwake ruling unless the party
challenging the ruling can make a strong showing that the court
abused its discretion by clearly exceeding the bounds of reason
or disregarding rules or principles of law or practice.

State

v. Deguair, 136 Hawaii 41, 84–85, 358 P.3d 43, 56–57 (2015);
Hinton, 120 Hawaii at 273, 204 P.3d at 492.
1. Severity of the Offense
The circuit court concluded that the first factor
favors retrial because manslaughter is “unquestionably a serious
charge based upon an accused allegedly recklessly causing . . .
the death of another person.”

Deedy argues that this factor

weighs against retrial for the following reasons: even though
reckless manslaughter may be viewed as a serious offense because
it involves the death of a person, third-degree negligent

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homicide (which also involves causing a death of another person)
is only a misdemeanor; he had been acquitted of second-degree
murder; and the State abandoned reckless manslaughter.

However,

reckless manslaughter is designated by the legislature as a
class A felony, see HRS § 707-702(3) (1993 & Supp. 2006), it may
subject a convicted defendant to an indeterminate term of twenty
years of imprisonment, see HRS § 706-659 (2014), its commission
results in the death of another human being, and, “when
considered in light of, or as compared with, other felony
offenses (such as murder, rape, or kidnapping),” reckless
manslaughter is an offense of serious gravity.

See Hinton, 120

Hawaii at 278, 204 P.3d at 497 (intimating that murder, rape,
and kidnapping are serious offenses and considering the felony
classification of the charged offense in evaluating the first
Moriwake factor).

Further, as discussed supra, the State did

not “abandon” reckless manslaughter in this case, contrary to
Deedy’s contention.

Accordingly, the circuit court did not

abuse its discretion in concluding that reckless manslaughter is
a serious offense and that the first Moriwake factor weighs in
favor of a retrial.10

10
Deedy does not claim that the seriousness of the felony firearm
charge favors dismissal, so this court need not reach this issue.

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2. The number of prior mistrials and the circumstances of the
jury deliberation therein, so far as is known
In analyzing this factor, the circuit court
specifically referenced the jury communications from the second
jury and noted that the jury appeared concerned about the
recklessness state of mind and the timing of its applicability.
The court also stated that “[i]t is difficult to discern from
communications precisely how jury deliberations proceeded.”
Thus, the circuit court concluded that, “considering the legal
and factual complexity of this case and the fact that a retrial
will focus solely upon a reckless state of mind, this factor is
neutral.”
Deedy disagrees with the circuit court, arguing that
the first jury voted eight to four in favor of acquittal on the
murder charge and the second jury voted seven to five in favor
of acquittal on the reckless manslaughter charge.

Deedy also

contends that the lengthy deliberation of the first and second
juries weighs in favor of dismissal.

The State responds that

the juries in the first and second trials acquitted Deedy only
of second-degree murder and that the contents of the jury
communications to the court indicated that the jurors did not
acquit Deedy of any of the lesser included offenses.
Although there have been two trials in this case, only
the second trial involved submission to the jury of the included

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reckless manslaughter and assault offenses.11

And even in cases

where there had been two trials, both of which ended in a
mistrial as to certain counts, this court has held that it was
not an abuse of discretion for the circuit court to conclude
that the second Moriwake factor weighed slightly for the
allowance of a retrial.

Deguair, 135 Hawaii at 88, 358 P.3d at

60.
Further, as the circuit court appears to have
inferred, the jury communications from the second jury evince a
degree of confusion about the recklessness state of mind and its
application.

The third communication from the jury inquired,

“Is recklessness limited to only at the time of using deadly
force or includes from beginning to end leading up to the point
of using deadly force?”

The fourth jury communication mirrored

the inquiry contained in the third jury communication.
11

The

The dissent argues that the number of times the jury was
instructed on reckless manslaughter and assault offenses should be irrelevant
to our analysis because it does not change the number of chances the State
has been afforded to obtain a guilty verdict. Dissent at 11-12. However,
the second factor provides for consideration of “the number of prior
mistrials and the circumstances of the jury deliberation therein, so far as
is known.” Moriwake, 65 Haw. at 56, 647 P.2d at 712 (emphasis added). Thus,
the number of prior mistrials is not considered in isolation. Instead, the
circuit court duly considered the circumstances of the jury deliberations,
which included not only the offenses that were deliberated upon in each trial
but also the nature of the jury communications in the earlier trials. The
circuit court was therefore not foreclosed from considering the number of
opportunities a jury has had to reach a consensus on the issue of guilt as to
the offenses that would be involved in a retrial. That a jury had evaluated
the reckless manslaughter charge only once before was thus relevant to the
circuit court’s evaluation of the second Moriwake factor, and the court did
not abuse its discretion by taking it into consideration.

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sixth jury communication asked, “If we sign the ‘no[t] guilty’
verdict form on the charge of murder in the 2nd degree, does it
mean that Deedy is not guilty [of] the lesser charges of
reckless manslaughter, 1st degree assault [and] 2nd degree
assault?”

And the eighth jury communication asked whether

“reckless manslaughter [is] included in Murder in the Second
Degree Charge or are they sepporate [sic]?”

The circuit court

may duly take into account its concern, founded upon these
communications, that the jury was confused with the import of
the recklessness state of mind in the court’s instructions.
Hinton, 120 Hawaii at 278–79, 204 P.3d at 497–98 (holding that
the circuit court did not abuse its discretion by finding the
second Moriwake factor weighed in favor of retrial because the
jury “seemed confused”).12

In light of the circuit court’s

12

In Hinton, 120 Hawaii at 270, 204 P.3d at 489, the jury submitted
communications during deliberations requesting the definition and application
of a term related to the charge. When the jury proceeded to deadlock, the
trial court declared a mistrial, and the defendant moved to dismiss the
charges under Moriwake. Id. at 271, 204 P.3d at 490. In considering the
second Moriwake factor, the trial court observed, “[A]ll in all, the
questions [the jury] asked and their trouble following the evidence makes me
feel that this factor weighs in favor of a retrial.” Id. On review, the
court in Hinton held that the circuit court did not abuse its discretion in
finding that the second Moriwake factor weighed towards retrial. Id. at 279,
204 P.3d at 499. Thus, we have approved consideration of jury communications
evincing confusion under Moriwake’s second factor.
In apparent disagreement with this court’s decision in Hinton,
the dissent contends that, under our interpretation, “whenever jury
communications indicate confusion, the State may be afforded another
opportunity to retry the case” to correct strategic missteps that led to the
jury’s confusion. Dissent at 14. However, there is no indication here that
the jury’s confusion resulted from mistakes on the part of the State. We
(continued . . .)

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conclusion regarding the legal and factual complexity of the
case and that a retrial will focus solely upon a reckless state
of mind, the court clearly did not exceed the bounds of reason
in weighing this factor as “neutral” in its Moriwake analysis.13
3. The character of prior trials in terms of length, complexity
and similarity of evidence presented
The circuit court determined that the length,
complexity, and evidence presented weigh in favor of retrial.
Deedy asserts that the lengthy prior trials—-the first trial
lasting 23 days and the second trial 16 days--and the similarity
of the evidence adduced at each trial weigh in favor of
dismissal.
“A comparison between the evidence presented,
witnesses testifying, and legal theories argued in each trial

(. . . continued)
also note that the circuit court ultimately concluded with regard to the
second Moriwake factor that “this factor is neutral,” which was decidedly not
an abuse of discretion in light of our precedent. (Emphasis added.)
13

The dissent argues that our holding may allow the State to “avoid
some of the repercussions” of its “fail[ure] to obtain a conviction due to
its unclear presentation of the facts.” Dissent at 14. However, the jury
communications in the second trial focused upon the complexities of the legal
standards the jury was required to apply. It is the ultimate responsibility
of the trial court, not the State, to ensure that the jury possesses “a clear
and correct understanding of what it is they are to decide.” State v.
Adviento, 132 Hawaii 123, 137, 319 P.3d 1131, 1145 (2014) (quoting State v.
Hoey, 77 Hawaii 17, 38–39, 881 P.2d 504, 525–26 (1994)). And it is the
court, not the State, that is responsible for providing correct instructions
on the law. Id. (citing State v. Locquiao, 100 Hawaii 195, 205, 58 P.3d
1242, 1252 (2002)).

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[is] relevant to the third Moriwake factor.”
Hawaii at 88, 358 P.3d at 60.

Deguair, 136

We note, however, that the length

of previous trials, considered in and of itself, is not a strong
indicator of whether the third Moriwake factor favors or
disfavors a retrial.

For example, in Hinton, this court agreed

with the trial court’s determination that, although the short
length of the previous trial favored a retrial, the fact that
the case was not complex ultimately weighed against a retrial.
See Hinton, 120 Hawaii at 271, 279, 204 P.3d at 490, 498.

In

Deguair, this court agreed with the trial court’s reasoning
that, even if the previous trials were somewhat long, the fact
that the case was not complex weighed against a retrial.
Hawaii at 89, 358 P.3d at 61.

136

Evident in both Hinton and

Deguair is the fact that the length of the previous trials, as
an ingredient in the evaluation of the third Moriwake factor,
must be viewed and analyzed in the context of the complexity of
the case.

See Hinton, 120 Hawaii at 271, 279, 204 P.3d at 490,

498; Deguair, 136 Hawaii at 88–89, 358 P.3d at 60–61.
The court in this case considered the length of the
previous trials and observed that the two trials had been
legally and factually complex:
The two trials were legally complicated; the
self-defense and defense of others instructions, alone,
included some complex provisions. In addition, both trials
were factually complicated, involving as they did, not one

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or two events, but a series of alleged events as witnessed
in part by a number of persons, and without the benefit of
a surveillance tape that contained any sound or that
captured greater detail . . . Thus, the jury had to weigh
credibility of numerous witnesses as to all events it
deemed relevant, had to decide what the tape portrayed, had
to determine what precisely had occurred, and then had to
apply these facts to some complicated legal principles.

(Emphases added.)

As stated by the circuit court, not only did

the second jury have to consider second-degree murder, its
included offenses, and a felony firearm offense, it also had to
evaluate, as to each of these offenses, whether self-defense or
defense of others applied.

See Hinton, 120 Hawaii at 279, 204

P.3d at 498 (agreeing with the trial court that the third
Moriwake factor weighed against retrial in part because the
first trial was not complicated).

Additionally, these complex

legal principles had to be applied to facts and circumstances
that, as the trial court noted, were subject to recounting by
numerous witnesses and captured by a soundless and
insufficiently detailed surveillance video.14
If this court were to accept Deedy’s proposition,
echoed by the dissent, Dissent at 23-24,--that longer and more
complex previous trials should tip the third Moriwake factor in
14
Although the dissent does not dispute that the trial was complex,
it argues that this consideration weighs in favor of dismissal. Dissent at
23-24. Our precedents clearly hold otherwise. See Hinton, 120 Hawaii at
279, 204 P.3d at 498; Deguair, 136 Hawaii at 89, 358 P.3d at 61. This is
because trials that involved complicated issues may have a greater likelihood
to be resolved by a second jury with a different complement of jurors than
would trials that deadlocked on non-complicated issues.

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favor of dismissal--then there will be a greater likelihood that
the third Moriwake factor will favor dismissal of cases
involving more serious charges, cases with a greater number of
charged offenses or defendants, and cases involving offenses of
more complexity in their alleged commission or in the applicable
law, in contrast to cases of less seriousness.15

Thus, Deedy’s

argument that “lengthy prior trials . . . weigh[] in favor of
dismissal under Moriwake” is inconsistent with this court’s
decisions in both Hinton and Deguair and would bring about
incongruous results.
The circuit court also examined the difference in the
presentation of evidence and the legal theories pursued between
the first and second trials, stating that
[w]hile many of the same witnesses and the same
surveillance tape were presented at both trials, the second
trial’s evidence appeared to place greater emphasis upon
[Deedy]’s alleged state of intoxication and the State’s
theory that the deceased already had sustained a gunshot

15

The dissent maintains that there is no “linear” relation such
that cases involving serious charges or multiple defendants “necessarily
result in longer and/or more complicated trials.” Dissent at 24. However,
we merely observe that there is a greater likelihood that lengthier
trials will occur in such cases. And at least one empirical study confirms
that high-stake criminal litigation tends to involve longer trials. See
Barry Mahoney & Dale Ann Sipes, Toward Better Management of Criminal
Litigation, 72 Judicature 29, 33–34 (1988) (detailing results of study that
“not surprisingly” indicated “[t]he most serious felony charge trials-homicide, rape and robbery--consistently take longer (both overall and in
specific segments) than do theft, burglary and narcotics cases”).

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wound before he and [Deedy] fell to the restaurant
floor.[16]

(Emphasis added.)
Given that the circuit court duly considered the
differences “between both trials with respect to the legal
theories, evidence presented, and witnesses who testified,”
Deguair, 136 Hawaii at 88–89, 358 P.3d 60–61, and in light of
its determination that the previous trials were both factually
and legally complex, the circuit court plainly did not abuse its
discretion in determining that the third Moriwake factor favors
retrial.17

See Hinton, 120 Hawaii at 279, 204 P.3d at 498;

16

The dissent contends that the circuit court abused its discretion
when evaluating the third Moriwake factor by mistakenly equating the
different emphases that the State placed upon the evidence in the two trials
with dissimilarities in the evidence presented in the trials. Dissent at 2021. The dissent, however, misapprehends the circuit court’s analysis. The
court’s allusion to differing emphases in the two trials referred to
differences in the legal theories that the State presented, which our
precedents require a court to account for when analyzing the third Moriwake
factor. See Deguair, 136 Hawaii at 88, 358 P.3d 60 (“A comparison between
the . . . legal theories argued in each trial [is] relevant to the third
Moriwake factor.”).
17
The dissent in its evaluation of the second and third Moriwake
factors faults the State’s trial strategy of focusing its efforts upon
obtaining a murder conviction rather than a manslaughter conviction. Dissent
at 15, 22 (contending that dismissal is called for because the State
“deliberately and strategically chose not to focus on whether Deedy could be
convicted of reckless manslaughter” “and instead fixate[d] its efforts on
pursuing a murder conviction”). Deedy was indicted by a grand jury that
charged him with murder in the second degree (along with the related firearm
offense). It is unclear if it is the dissent’s position that the State is
required to divide its advocacy in a prosecution between the charged offense
and included offenses if it wishes to avoid dismissal when a jury deadlocks
on an included offense. Even assuming this were the case, the evidence as
presented at trial indisputably supported the submission of an included
offense instruction on reckless manslaughter, the jury in fact deadlocked on
this charge, and Deedy has not challenged the circuit court’s determination

(continued . . .)

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Deguair, 136 Hawaii at 89, 358 P.3d at 61 (reasoning that the
third Moriwake factor favored dismissal because the case was not
complex and deferring to the circuit court’s findings because
that court took into account the various considerations that
bear upon this factor).
4. The likelihood of any substantial difference in a subsequent
trial, if allowed
The circuit court concluded that this factor favors
retrial, reasoning that, “[i]n a third trial, the prosecution
will focus exclusively upon a reckless state of mind, which
carries different requirements than does an intentional or
knowing state of mind.”

The court reasoned that “the greater

state of mind . . . will otherwise be irrelevant, meaning that
evidentiary emphasis and argument during that third trial will
differ from what they were when the focus was the charged
offense.”

In addition, the circuit court determined that, if

the government meets its burden at the third trial, the defenses
of self-defense and defense of others would be rendered
inapplicable.

(. . . continued)
that there was a rational basis in the evidence for the jury to be instructed
on this offense at the second trial. Thus, the State’s trial strategy did
not preclude the jury from consideration of reckless manslaughter at the
second trial.

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Deedy disagrees with the circuit court, contending
that, not only has the State consistently taken the position
that its evidence does not support a finding that Deedy harbored
a reckless state of mind, there is also “no reason to think the
witnesses will be different, the videotape will depict anything
different, or the experts will opine something new.”

The State

asserts that the presentation of the evidence at a retrial-which would focus on whether Deedy harbored a reckless state of
mind when he discharged the fatal shot--will substantially
differ from the prior trials.
The circuit court concluded that the evidence that
will be presented at a third trial will be tailored to
addressing the specific elements of the recklessness state of
mind,18 and as such, the self-defense and defense of others
justifications will have a more limited application.

See

generally HRS § 703-310 (1993); State v. Culkin, 97 Hawaii 206,
18
Deedy takes issue with the circuit court’s reasoning that a third
trial would allow the State to present evidence and argument on recklessness
when the State, from Deedy’s point of view, “had opted not to adduce or
advance” recklessness at the prior trials. However, a more serious state of
mind subsumes within it all less serious states of mind. For example,
“[w]hen the law provides that recklessness is sufficient to establish an
element of an offense, that element also is established if, with respect
thereto, a person acts intentionally or knowingly.” HRS § 702-208 (1993).
In this case, by introducing evidence to support its argument in the first
two trials that Deedy harbored an intentional state of mind, the State was in
effect also introducing evidence that Deedy acted with a knowing, reckless,
or negligent state of mind. Id. Thus, it is incorrect to contend, as Deedy
does, that the State “opted not to adduce” evidence of the recklessness state
of mind when it focused its case on the intentional state of mind.

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216, 35 P.3d 233, 243 (2001) (“HRS § 703–310 quite plainly
instructs that self-defense is not available as justification
where a defendant believes that the use of force is necessary,
but is reckless or negligent in so believing.”).

Deedy places

inordinate emphasis on his claim that the evidence at a third
trial will not be substantially different from that introduced
at the first and second trials.

While “[t]his court has

indicated that whether the evidence submitted in a subsequent
trial would be substantially different from prior trials is
relevant” in evaluating the fourth Moriwake factor, this court
has never held that it is dispositive as to whether this factor
favors retrial.

Deguair, 136 Hawaii at 89, 358 P.3d at 61.

The primary focus of this factor is the likelihood of
any substantial difference in a subsequent trial, which includes
not only the evidence presented, but also the theory of guilt,
the applicable defenses, and the likelihood of a verdict as
opposed to a hung jury.

See, e.g., id. (noting that not only

was evidence to be offered at a third trial substantially the
same as the second trial, it was also not likely that there
would be a substantial difference in the result of a third
trial).

Here, the circuit court concluded that the differing

emphasis of the prosecution’s case, as well as the manner in
which the evidence will be characterized (even assuming that the
evidence will closely parallel the evidence in the first and
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second trials), could reasonably make a substantial difference
in a subsequent trial.
P.3d at 498.

See id.; Hinton, 120 Hawaii at 279, 204

Thus, this is unlike Moriwake, in which the court

stated, “There was no indication that a third trial would
proceed in a manner any different than did the previous two.”
Moriwake, 65 Haw. at 57, 647 P.2d at 713.

Based on the circuit

court’s analysis, it cannot be said that the court abused its
discretion in weighing this factor in favor of retrial.
5. The trial court’s own evaluation of relative case strength
As to the fifth factor, the circuit court concluded
that the “[r]esolution of this case is based in large part upon
credibility and the factual application of the self-defense
defense provisions during the series of alleged events” and that
the evidence would be sufficient either to convict or acquit
Deedy “depending upon who and what a jury elected to believe.”
Thus, the circuit court rejected the argument that the
government’s case was inherently flawed or too weak to support a
conviction, and therefore, the court determined that this factor
favored retrial.

Deedy, on the other hand, argues that the

State’s evidence is not compelling or weighty and that his
defenses are not implausible; thus, Deedy believes that this
factor weighs in favor of dismissal.

The State contends that

the circuit court did not abuse its discretion with respect to
the fifth factor because the jury rejected Deedy’s argument that
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his conduct was justified and because a reasonable jury could
find that Deedy acted with a reckless state of mind.
The circuit court’s findings and conclusions in its
written order reflect that it duly considered the evidence
adduced at trial and, cognizant of Moriwake’s dictates, that it
impartially evaluated each party’s case and weighed these
considerations against fundamental fairness to Deedy.

See

Hinton, 120 Hawaii at 280, 204 P.3d at 499 (although the trial
court did not make a specific finding or conclusion on the fifth
factor, in its final analysis, the court “‘balanced’ the
relative case strength factor and determined it weighed in favor
of retrial”).

Indeed, the circuit court in this case expressly

stated in its Moriwake ruling that it was taking judicial notice
of “all pre-trial matters,” “jury selection, both trials, jury
communications, and all post-trial matters.”

The court, in

clear recognition of Moriwake, also stated that it was “mandated
to balance the interest of the State against fundamental
fairness to a defendant with the added ingredient of the orderly
functioning of the court system.”

The circuit court having

overseen both trials and having closely evaluated the evidence
concluded that the State’s evidence was of sufficient strength
for a jury to return a guilty verdict on the reckless
manslaughter charge.

This is in contrast to what the trial

court concluded in Deguair, where the quality of the State’s
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evidence was so lacking that this court agreed with the circuit
court’s conclusion that relative case strength favored
dismissal.

See Deguair, 136 Hawaii at 90, 358 P.3d at 62.

There is no indication in the record to refute the circuit
court’s determination that the evidence was sufficiently strong
to support a conviction on retrial.

Accordingly, the trial

court did not abuse its discretion in concluding that its
evaluation of relative case strength favored retrial.
6. The professional conduct and diligence of respective counsel,
particularly that of the prosecuting attorney
Because “[c]ounsel acted with diligence and did the
best job they could do,” the circuit court concluded that this
factor weighs in favor of retrial.

For the same reason, Deedy

contends that this factor weighs in favor of dismissal as there
can be no inference that the State can litigate its case any
better at a retrial.

The State argues that the circuit court

did not abuse its discretion with respect to this factor and
claims that Deedy “ignores the practical consequences of the
jury acquitting him of murder,” which “will require the deputy
prosecutor to present the case in a different manner.”
In Hinton, 120 Hawaii at 280, 204 P.3d at 499, “the
trial court determined that this factor weighed against retrial
inasmuch as the attorneys for both parties ‘did a good job.’”
Because “the ICA did not contend that this factor weighed in

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favor of retrial,” this court accepted the circuit court’s
analysis of this factor without independently evaluating it.
Id.

The same is true in Deguair: because neither party

challenged the circuit court’s determination that the
prosecutor’s diligent and professional presentation of the
State’s case weighed against retrial, this court did not
consider that determination.

Deguair, 136 Hawaii at 90, 358

P.3d at 62.
The quality of counsel’s professional conduct and the
level of their diligence could weigh either in favor or against
retrial depending on the circumstances and specific facts of the
case, including the result of the evaluation of other relevant
Moriwake factors.

For example, when it is extremely unlikely

that there would be a substantial difference in a subsequent
trial, as was the case in Hinton and Deguair, the trial court
may determine that the professional conduct and diligence of
counsel would weigh against retrial.

See Deguair, 136 Hawaii at

89, 358 P.3d at 61—62; Hinton, 120 Hawaii at 279, 204 P.3d at
498—99.

This is in part because, in such an instance, it would

appear equally unlikely that counsel’s diligence and
professionalism would make any difference in a retrial.

On the

other hand, in cases where there is a likelihood of a
substantial difference in a subsequent trial, the degree of

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counsel’s diligence and professionalism may be found to weigh in
favor of retrial.

In such cases, counsel’s diligence and

professionalism would still play a significant role and may
influence the outcome of a retrial.
In this case, the circuit court’s conclusion as to the
sixth Moriwake factor is consistent with, and supported by, the
circuit court’s other finding that it is likely that a third
trial would result in substantial difference in this case
because the presentation of the evidence at a third trial will
be tailored to addressing the recklessness state of mind and
because the self-defense and defense of others justifications
could be rendered inapplicable.

See supra.

Accordingly, the

circuit court did not abuse its discretion in holding that the
sixth Moriwake factor favors retrial.

See Deguair, 136 Hawaii

at 89, 358 P.3d at 61; Hinton, 120 Hawaii at 279, 204 P.3d at
498.19

19

Deedy further contends that two other factors bear relevance to
the balancing test under Moriwake: (1) the fact that the State has expressly
and consistently maintained that it has no evidence to support a reckless
manslaughter charge--the same charge that will be the subject of a third
trial--and (2) the expenses and resources that have been used in litigating
this case are disproportionately high as compared to other cases involving
similar charges and that a third trial will only elevate costs further for
both Deedy and the public. We note that Deedy raises these factors for the
first time on appeal, and, as such, the circuit court had no opportunity to
consider these factors in exercising its discretion pursuant to Moriwake. In
any event, the State did, in fact, raise in the second trial that the jury
could find that the evidence it presented supported conviction on the lesser
included offenses. With respect to costs, the expense of the trial would
(continued . . .)

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7. The circuit court did not abuse its discretion
While this court stated in Moriwake that “in most
cases, serious consideration be given to dismissing an
indictment with prejudice after a second hung jury mistrial[,]
this is not to say that the preclusion of even a second trial or
the allowance of a third or even more trials would not be
appropriate in certain circumstances.”
647 P.2d at 713.

Moriwake, 65 Haw. at 57,

This court later reaffirmed that “the Moriwake

court squarely placed the discretion in the hands of the trial
court to determine under which ‘certain circumstances’ dismissal
after one or more mistrials would be appropriate.”
Hawaii at 279, 204 P.3d at 498.

Hinton, 120

Axiomatic in Hinton, therefore,

is that the trial courts also are provided with the discretion
to determine under which “certain circumstances” retrial after
one or more mistrials would be appropriate.

See id.

In this

case, the circuit court, after careful consideration of all of
the relevant Moriwake factors and in the proper exercise of its
discretion, determined that under the circumstances of this
case, a retrial after two prior mistrials is the outcome that
the Moriwake framework provides.

See id.

(. . . continued)
appear to be contraindicative of whether a third trial should be allowed, as
costs may be related to the complexity of the case.

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We will not disturb this determination because it is
manifest that the circuit court duly considered the rules and
principles of law underlying Moriwake.

The circuit court was

aware of the applicable factor-balancing test, analyzed each
factor in light of the facts and circumstances of this case, and
weighed the factors in accordance with the canons of Moriwake.
See supra.

Thus, it cannot be concluded that the circuit court

“disregard[ed] rules or principles of law or practice to the
substantial detriment of a party litigant.”

Deguair, 136 Hawaii

at 84–85, 358 P.3d at 56–57 (quoting Hinton, 120 Hawaii at 273,
204 P.3d at 492).
Further, it is evident from the circuit court’s
Moriwake ruling that the findings and conclusions it made with
respect to each of the Moriwake factors are based on facts in
the record, reasonable inferences from the record, and a logical
process of reasoning.

See, e.g., id. at 88—90, 358 P.3d at 60—

62 (concluding that the circuit court did not exceed the bounds
of reason because its Moriwake ruling was based on findings and
conclusions supported by the record and obtained by duly
considering and weighing the relevant Moriwake factors).
Accordingly, it cannot be said that the circuit court in this
case “exceed[ed] the bounds of reason” in its findings and
conclusions with respect to the Moriwake factors and the manner

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in which the factors were weighed and balanced.

Id. at 84–85,

358 P.3d at 56–57 (quoting Hinton, 120 Hawaii at 273, 204 P.3d
at 492).
We reaffirm that in cases involving a trial court’s
application of the Moriwake factor-balancing test, deference is
accorded to the court’s findings and conclusions.
Haw. at 56, 647 P.2d at 712.

Moriwake, 65

As this court has underscored,

Moriwake rulings are “accord[ed] deference . . . for much the
same reason that [an appellate court] will seldom question the
propriety of a hung jury mistrial declaration.”

20

Id.20

As this court stated,
there are especially compelling reasons for allowing the
trial judge to exercise broad discretion in deciding
whether or not “manifest necessity” justifies a discharge
of the jury. On the one hand, if [the judge] discharges
the jury when further deliberations may produce a fair
verdict, the defendant is deprived of his “valued right to
have his trial completed by a particular tribunal.” But if
[the judge] fails to discharge a jury which is unable to
reach a verdict after protracted and exhausting
deliberations, there exists a significant risk that a
verdict may result from pressures inherent in the situation
rather than the considered judgment of all the jurors. . .
. The trial judge’s decision to declare a mistrial when
[the judge] considers the jury deadlocked is therefore
accorded great deference by a reviewing court.

Moriwake, 65 Haw. at 52–53, 647 P.2d at 710 (quoting Arizona v. Washington,
434 U.S. 497, 509—10 (1978)). In Arizona, upon which the Moriwake court
relied, the Supreme Court noted that the reason “for this deference in the
‘hung’ jury situation is that the trial court is in the best position to
assess all the factors which must be considered in making a necessarily
discretionary determination whether the jury will be able to reach a just
verdict if it continues to deliberate.” 434 U.S. at 510 n.28 (emphasis
added). The same is true in the Moriwake context because the trial court is
the tribunal most intimately acquainted with the facts and circumstances of
the case and has been personally involved in the procedural history of the
case, including the conduct of the prior trials, and the development of the
(continued . . .)

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In view of the foregoing principles, and according
appropriate deference to the findings and conclusions of the
circuit court in this case, the circuit court did not exceed the
bounds of reason or disregard rules or legal principles when it
concluded that all of the following factors--the severity of the
offense, character of prior trials, likelihood of any
substantial difference in a subsequent trial, relative case
strength, and the quality of counsel--did not favor dismissal.
Id.; Deguair, 136 Hawaii at 84–85, 358 P.3d at 56–57.

In a

similar vein, the circuit court did not exceed the bounds of
reason or disregard rules or legal principles when it determined
that one factor--the number of prior trials--has a neutral
effect on whether a retrial is appropriate.

Deguair, 136 Hawaii

at 84–85, 358 P.3d at 56–57 (quoting Hinton, 120 Hawaii at 273,
204 P.3d at 492).
Accordingly, the circuit court did not abuse its
discretion in denying Deedy’s motion to dismiss after “balancing
the interest of the state against fundamental fairness to a
(. . . continued)
record; has seen firsthand and independently appraised the evidence and the
credibility of the witnesses; and has closely observed the jury and the
manner in which the jury deliberated. Thus, the trial court is clearly in
the “best position” to consider and weigh the Moriwake factors relevant to
determining whether a case should be retried or dismissed with prejudice.
Cf. Arizona, 434 U.S. at 510 n.28.

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defendant with the added ingredient of the orderly functioning
of the court system.”

Moriwake, 65 Haw. at 56, 647 P.2d at 712.

E. Supremacy Clause Immunity
Lastly, Deedy contends that the Supremacy Clause of
the U.S. Constitution shields him from prosecution under the
criminal laws of Hawaii.

Deedy maintains that he is immune from

prosecution for a violation of a state’s criminal laws because
his actions arose out of his performance of his duty as a
federal agent.

Deedy argues that Supremacy Clause immunity

applies to him because he did not exceed his authority or
wantonly violate state criminal law when he fired the fatal
shot.

Deedy asserts that “state law is irrelevant” in analyzing

whether he is immune and that “violations of agency policy,”
“errors of judgment,” and his “mistakes of fact” do not suffice
to deny him of Supremacy Clause immunity.

Accordingly, Deedy

concludes that the circuit court should have granted his
dismissal motion based on federal constitutional law.
Under the U.S. Constitution, a federal officer is
entitled to Supremacy Clause immunity “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 view the evidence “in the light most favorable to the
state.”

Id. at 733.

When there is “a conflict of evidence” as
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to the elements of Supremacy Clause immunity (e.g., whether the
defendant’s conduct is authorized by federal law), “the state
court ha[s] jurisdiction,” and the defendant would not be immune
from state prosecution.

United States ex rel. Drury v. Lewis,

200 U.S. 1, 7–8 (1906).
Special Agent Matthew Golbus, the resident agent of
the Diplomatic Security Service (DSS) in the Honolulu resident
office, testified that the authority for special agents with the
DSS comes from 22 U.S.C. 2709 (2012).21

Thus, Deedy’s general

21

At the time of the incident, 22 U.S.C. 2709 stated in relevant
part as follows:
(a) General authority
Under such regulations as the Secretary of State may
prescribe, special agents of the Department of State and
the Foreign Service may-(1) conduct investigations concerning illegal passport
or visa issuance or use;
. . .
(2) obtain and execute search and arrest warrants, as
well as obtain and serve subpoenas and summonses issued
under the authority of the United States;
(3) protect and perform protective functions directly
related to maintaining the security and safety of
[designated officials and their family members and
foreign missions];
. . .
(4) if designated by the Secretary and qualified, under
regulations approved by the Attorney General, for the
use of firearms, carry firearms for the purpose of
performing the duties authorized by this section; and
(continued . . .)

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duties and the scope of his authority were defined and
delineated by 22 U.S.C. § 2709, and, as relevant to the facts of
this case, Deedy had the authority 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.”

22 U.S.C. § 2709(a)(5).

Deedy maintains that his actions were authorized by 18
U.S.C. § 111(a)(1) (2012), which provides that whoever “forcibly
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.

(Emphasis added.)

The

argument appears to be that Deedy was authorized to arrest the
deceased and to use deadly force in effectuating such arrest
because the deceased assaulted him while he was engaged in the
performance of official duties--a course of conduct prohibited
by 18 U.S.C. § 111(a)(1).
(. . . continued)
(5) make arrests without warrant for any offense
against the United States committed in their presence,
or for any felony cognizable under the laws of the
United States if they have reasonable grounds to
believe that the person to be arrested has committed or
is committing such felony.
. . . .
22 U.S.C. § 2709 (2012) (underlining added) (footnote omitted).

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However, Deedy does not explain how a night of
socializing and drinking alcoholic beverages in Waikīkī with
friends was part of his “official duties” as a State Department
agent within the meaning of that phrase in 18 U.S.C. § 111(a)(1)
such that he was authorized by 18 U.S.C. § 111 and 22 U.S.C. §
2709 to arrest the deceased and, if necessary, to inflict deadly
force upon him.

Cf. Cunningham v. Neagle, 135 U.S. 1, 52–53

(1890) (federal marshal was authorized to fatally shoot an
individual who attacked a Supreme Court justice whom the marshal
was tasked to protect); Wyoming v. Livingston, 443 F.3d 1211,
1226 (10th Cir. 2006) (agents who trespassed on private property
were authorized by the Endangered Species Act to monitor wolves
and were thus performing their official duties).

That Deedy was

not engaged in the performance of his official duties is
substantiated by Special Agent Golbus’s testimony that DSS
agents are specifically authorized, pursuant to internal State
Department policy, to carry firearms “[i]n the performance of
their duties with respect to investigating passport and visa
issuance or use in performing protective functions.”

On the

night of Deedy’s altercation with the deceased, Deedy was not
investigating passport and visa issuance or performing
protective functions or any other conduct enumerated in 22
U.S.C. § 2709(a); rather, he was drinking alcoholic beverages at
multiple bars and then ate at a fast-food restaurant in Waikīkī.
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Because Deedy does not provide any federal authority
for the proposition that his activities that evening were part
of his official duties, this court need not reach the issue of
whether Deedy’s actions were “necessary and proper to the
execution of his responsibilities.”

However, even assuming that

Deedy was performing an official duty when he shot the deceased,
Deedy does not explicate how his conduct was necessary and
proper, under the circumstances, to the execution of that duty.
Even Deedy’s expert witness testified that a federal agent “just
can’t shoot anybody just ‘cause [that person] say[s] [he is]
going to kill [the agent] and [he] starts coming at [the
agent].”

Deedy’s expert witness further testified that federal

agents “should not instigate confrontation” and that they should
not “use deadly force in a situation in which [they] ha[ve]
created the need for such force.”
Finally, even assuming that the evidence was
conflicting as to whether Deedy’s conduct was authorized by
federal law or as to whether his actions were necessary and
proper to the execution of his responsibilities, “the state
court” has jurisdiction, and Deedy would not be immune from
state prosecution.

Lewis, 200 U.S. at 7–8.

Accordingly, Deedy

is not immune from state prosecution under the Supremacy Clause.

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V. CONCLUSION
Based on the foregoing, we affirm the circuit court’s
(1) Order Denying Defendant Deedy’s Motion to Dismiss Under
State v. Moriwake; (2) Order Denying Defendant Deedy’s Motion to
Dismiss Under the United States Constitution; (3) Order Denying
Defendant Deedy’s Motion to Dismiss Under the Hawaii
Constitution; and (4) Order Denying Defendant Deedy’s Motion to
Dismiss Under Haw. Rev. Stat. §§ 701-109, 701-110, and 701-111.
This case is remanded to the circuit court for further
proceedings consistent with this opinion.
Thomas M. Otake and
Davis L. Livingston
for petitioner

/s/ Mark E. Recktenwald

Donn Fudo
for respondent

/s/ Richard W. Pollack

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

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