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State v. Carroll4/29/1981
at the offenses arose from a single episode, regardless of which test is applied.
III.
All of the preconditions required for the application of HRS § 701-109(2) are satisfied in this case. It is uncontested that the appropriate prosecuting officer was aware of the existence of the Attempted Criminal Property Damage charge at the time that the possessory charge was prosecuted. Furthermore, both charges are clearly within the jurisdiction of a single court. State v. Aiu, 59 Haw. 92, 97 n.8, 576 P.2d 1044, 1048 n.8 (1978); HRS § 603-21.5(1); cf. HRS § 701-118(1).
We begin with consideration, and rejection, of the State's interpretation of the word "episode." First, the State contends erroneously that HRS § 701-109(2) was derived from Model Penal Code § 1.08(2) (Tent. Draft No. 5, 1956) and therefore assumes that the
Model Penal Code does not use the word "episode." Thus, the State hypothesizes that the Legislature coined the word "episode" as a shorthand means of encompassing subsections (b) and (c) of Model Penal Code § 1.08(2).
We note that the provision upon which the State relies was amended and renumbered as Model Penal Code § 1.07(2) in the 1962 Proposed Official Draft and that the amended provision contained the word "episode." Model Penal Code § 1.07, status of section (Proposed Official Draft, 1962). Furthermore, the Table of Derivation accompanying the Hawaii Penal Code indicates that HRS § 701-109 was derived from Model Penal Code § 1.07 (Proposed Official Draft, 1962), rather than its predecessor. 7A HRS at 497, app. § 3. Model Penal Code § 1.07(2) provides:
(2) Limitation on Separate Trials for Multiple Offenses. 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 criminal 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.
Second, the comment accompanying Model Penal Code § 1.07(2) reveals that the drafters of the code did not intend "episode" to encompass the situations described in Model Penal Code § 1.08(2)(b) and (c) (Tent. Draft No. 5, 1956). Model Penal Code § 1.07(2), as originally drafted, was considerably broader and would have required joinder of offenses where it is now merely permissible. Although the Model Penal Code Advisory Committee favored broadening the formulation to include offenses "based on a course of conduct having a common criminal purpose or plan or involving repeated commission of the same kind of offense," the Model Penal Code Council viewed both this and the original language in Model Penal Code § 1.08(2) (Tent. Draft No. 5, 1956) as too inclusive. Model Penal Code § 1.07, status of section (Proposed Official Draft, 1962). Model Penal Code § 1.07(2), limiting the requirement to "multiple offenses based on the same conduct or arising from the same criminal episode," was designed to meet the Council's view. Id. Thus, we can infer from the commentary to Model Penal Code § 1.07(2) that the Legislature, in formulating HRS § 701-109(2), did not intend a determination of a single criminal "episode" to be based
solely upon a defendant's singular criminal objective or common purpose or plan.
Although we reject the State's interpretation of "episode," we acknowledg
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