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State v. Carroll4/29/1981
[63 Haw Page 345] The State appeals from a circuit court order granting defendant-appellee Alfred Kapala Carroll's motion to dismiss an indictment charging him with a violation of HRS §§ 705-500 and 708-821(1)(b) (Attempted Criminal Property Damage in the Second Degree). In an earlier district court trial, defendant had been acquitted of the charge of violating Revised Ordinances of Honolulu (R.O.H.) § 13-21.3(a) (1969) (Possession of an Obnoxious Substance). The issue on appeal is whether the separate charges against
defendant arose from the same "episode." If so, HRS §§ 701-109(2) and 701-111(1)(b) bar the State from bringing defendant to trial for Attempted Criminal Property Damage in the Second Degree after prosecuting him on the possessory charge. We find that the two charges did not arise from the same episode and therefore, we reverse.
I.
Defendant was arrested on October 19, 1978 at 2:40 a.m. for starting a fire at Jefferson School. Police Officer Mossman, who was alerted to the scene by a private citizen, conducted a routine search of defendant for weapons and found a cannister. Believing it was a container of nasal spray, he returned it to defendant.
Defendant was then transported to the police station and booked for Attempted Criminal Property Damage in the Second Degree. During a custodial search by Police Officer Hee, the cannister was again recovered. This time, however, the police officer identified it as Mace. Defendant was subsequently charged at 3:20 a.m. for Possession of an Obnoxious Substance.
On December 26, 1978, defendant was brought to trial in the district court and acquitted of the misdemeanor charge of Possession
of an Obnoxious Substance. On March 2, 1979, he was brought to trial in the circuit court on the felony charge of Attempted Criminal Property Damage in the Second Degree. Defendant argued that the two offenses were part of a single "episode" within the context of HRS § 701-109(2), supra, and should have been prosecuted in the same proceeding.
Defendant moved to dismiss the indictment for Attempted Criminal Property Damage in the Second Degree on the ground that he had been prosecuted previously for Possession of an Obnoxious Substance, an offense arising from the same episode. He argued that the prosecution for Attempted Criminal Property Damage in the Second Degree was prohibited by HRS § 701-111(1)(b), supra.
The trial court concluded that the Attempted Criminal Property Damage offense was "closely related enough [to the possessory offense] so that it can be considered as part of a series and stemming from one incident or transaction that resulted in separate arrests." After finding that both charges were properly within its jurisdiction, the trial court granted defendant's motion to dismiss the indictment, based primarily on State v. Aiu, 59 Haw. 92, 576 P.2d 1044 (1978).
The question presented on appeal is whether HRS §§ 701-109(2) and 701-111(1)(b) prohibit the State from bringing defendant to trial for Attempted Criminal Property Damage in the Second Degree after defendant had been acquitted of the possessory charge.
II.
This court has previously addressed the issue of whether a subsequent prosecution must be barred by HRS § 701-109(2) in State v. Aiu, supra. However, in Aiu, it was conceded that
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