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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)).     The first trial was conducted from July

to August 2013.    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.           The State

opposed Deedy’s dismissal motions.        After Deedy filed an omnibus


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



     2
            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.”            HRS § 701-

108(5) (1993 & Supp. 2006).       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.          See HRPP Rule 5(b)

(2008); HRPP Rule 10 (2008).        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.”         Quitog, 85 Hawaii at 129, 938

P.2d at 560 (emphasis added).       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.               Id.

at 149, 938 P.2d at 580.       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.          Quitog, 85 Hawaii at 145–46, 938 P.2d

at 576–77.     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.             Id. at 135, 938

P.2d at 566.      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.”         Quitog, 85 Hawaii at 146, 938 P.2d at

577.    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.          In fact, HRPP Rule

29(a) operates in reverse.       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 § 701-

109(1) to seek convictions for all offenses resulting from a

single course of conduct.”       State v. Aiu, 59 Haw. 92, 95–96, 576

P.2d 1044, 1047 (1978).       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.”             State

v. Servantes, 72 Haw. 35, 38, 804 P.2d 1347, 1348 (1991).              The

Servantes court noted that the joinder requirement of HRS § 701-

     9
            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.”           HRS § 701-

110 cmt.   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.”      State v. Hinton, 120 Hawaii 265, 280, 204

P.3d 484, 499 (2009).      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.              The

      11
            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.”          Deguair, 136

Hawaii at 88, 358 P.3d at 60.       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.             136

Hawaii at 89, 358 P.3d at 61.       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 20-
21. 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.     See id.; Hinton, 120 Hawaii at 279, 204

P.3d at 498.   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.”          Moriwake, 65 Haw. at 57,

647 P.2d at 713.     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.”            Hinton, 120

Hawaii at 279, 204 P.3d at 498.        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.            Moriwake, 65

Haw. at 56, 647 P.2d at 712.       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.”           Id.20


     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                      /s/ Mark E. Recktenwald
Davis L. Livingston
for petitioner                           /s/ Sabrina S. McKenna

Donn Fudo                                /s/ Richard W. Pollack
for respondent
                                         /s/ Michael D. Wilson




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