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State v. Lemalu4/11/1991
ict forms for each count and was given Instruction Nos. 16 and 17, we find it highly probable that it was led to believe that the DUI counts against Lemalu constituted separate crimes.
While we recognize the substantial prejudice created by the use of Instruction Nos. 16 and 17 (or any other similar instruction that may characterize a single offense as separate crimes), coupled with the use of multiple verdict forms, we emphasize that such prejudice arises here because DUI was the only offense presented to the jury. In cases where a defendant is prosecuted for other crimes in addition to DUI, instructions such as Nos. 16 and 17 may be appropriate. However, caution must be exercised in wording the instructions so as not to mislead the jury into believing that the two methods of proving DUI constitute two separate offenses.
We further emphasize that the use of multiple verdict forms addressing both DUI counts does not, in and of itself, constitute reversible error. Whether DUI is the only offense prosecuted or is in addition to other offenses, the use of multiple verdict forms is appropriate as long as the jury is properly instructed that DUI is one offense. However, trial courts must be mindful that a jury's verdict of not guilty under only one method of proof is merely a factual finding and not the basis for a judgment of acquittal. Dow , 72 Haw. at 63, 806 P.2d at 407. Only one judgment of acquittal or of conviction should be entered.
IV.
In light of our decision to remand this case for retrial and the fact that a " judgment of acquittal" has been entered on the (a)(1) count, it is necessary that we discuss the double jeopardy implications which now arise due to such remand. Based upon our recent ruling in State v. Dow , 72 Haw. 56, 806 P.2d 402 (1991), there is no question that the State may retry its case against Lemalu on the (a)(2) count. Dow, like Lemalu, was charged with DUI under HRS § 291-4(a)(1) and (a)(2), in two counts. After the State rested, the trial court granted Dow's motion for judgment of acquittal as to the (a)(1) count and submitted the (a)(2) count to the jury. The jury was unable to reach a verdict and a mistrial was declared, but the court entered a judgment of acquittal on the (a)(1) count. The State retried Dow on the (a)(2) count, resulting in a conviction. On appeal, this court found that "Dow's acquittal was in form only; therefore the second trial, which led to his conviction, was constitutionally permissible." Dow , 72 Haw. at 59, 806 P.2d at 404. However, in Dow , unlike the present case, the State had retried only the DUI count of which the defendant had not been acquitted. Thus, we were not faced with the question that we now address: whether the State, on remand, would be allowed to present evidence of DUI under both methods of proof. We find the judgment of acquittal in this case to be in form only and not in substance, based on the rationale in Dow . It is thus constitutionally permissible for the State to retry Lemalu on the DUI offense, which includes count I as well as count II of the complaint.
V.
Based on the foregoing, we vacate Lemalu's conviction and remand this case for retrial consistent with this opinion.
Disposition
Based on the foregoing, we vacate Lemalu's conviction and remand this case for retrial consistent with this opinion.
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