WITH WHOM NAKAYAMA, J., JOINS
Because I disagree with the reasoning applied and the result reached by the majority in this case, I respectfully dissent. I would vacate Jumila's mandatory minimum term under HRS § 706-660.1 (1993)(1) and remand for resentencing without the mandatory minimum; however, I would affirm his convictions of murder in the second degree, in violation of HRS § 707-701.5 (1993),(2) and carrying or use of a firearm in the commission of a separate felony, in violation of HRS § 134-6(a) (Supp. 1996).(3)
A. Whether Second Degree Murder is an Included Offense of Carrying or Use of a Firearm
Relying on HRS § 701-109(4)(a), the majority holds that "by virtue of the statutory definition of HRS § 134-6(a), the felony underlying an HRS § 134-6(a) charge will always be 'established by proof of the same or less than all the facts required to establish the commission of the' HRS § 134-6(a) offense. Consequently, the felony underlying an HRS § 134-6(a)
offense is, as a matter of law, an included offense of the HRS § 134-6(a) offense." Majority, slip op. at 6. Thus, according to the majority, murder in the second degree is an included offense of carrying or use of a firearm in the commission of a separate felony. Inasmuch as a defendant cannot be convicted of both the charged offense and an included offense, the majority reverses Jumila's conviction of the firearms offense. I disagree with the majority's analysis.
I believe that the intent of the legislature in enacting HRS § 134-6(a) was to allow defendants to be convicted of both the underlying felony and HRS § 134-6(a). In interpreting statutes, we have held that
[o]ur primary duty in interpreting and applying statutes is to ascertain and give effect to the legislature's intention to the fullest degree. Although the intention of the legislature is to be obtained primarily from the language of the statute itself, we have rejected an approach to statutory construction which limits us to the words of a statute[,] . . . for when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Thus, the plain language rule of statutory construction, does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.
Sato v. Tawata, 79 Hawai`i 14, 17-18, 897 P.2d 941, 944-45 (1995) (quoting Richardson v. City & County of Honolulu, 76 Hawai`i 46, 68-69, 868 P.2d 1193, 1215-16 (Klein, J., dissenting), reconsideration denied, 76 Hawai`i 247, 871 P.2d 795 (1994)) (alterations in original).
In the present case, the legislative history of HRS § 134-6(a) indicates that the legislature intended to permit conviction of both the underlying felony and the separate firearms offense. "[A]n offender who uses a firearm in the commission of a felony can be charged with, in addition to the underlying offense, a class A felony under section 134-6(a) and therefore be subject to an enhanced penalty." Sen. Stand. Comm. Rep. No. 1217, in 1993 Senate Journal, at 1210 (emphasis added). Because the committee report states that the defendant may be charged with a violation of HRS § 134-6(a) "in addition to the underlying offense" rather than "instead of the underlying offense," it is clear that the legislature intended to allow defendants to be prosecuted both for violating HRS § 134-6(a) and for the underlying felony. If the defendant is convicted of the firearms offense, he is then subject to an additional twenty years imprisonment insofar as HRS § 134-6(a) is a class A felony. See HRS §§ 134-6(e) and 706-659 (1993 & Supp. 1996). Thus, the overall penalty imposed on the defendant is enhanced when a firearm is carried or used in the commission of the felony.
Nothing in the text of HRS § 134-6(a) contradicts the legislative history. The statute simply states that it is a class A felony for a person to knowingly carry on his or her person or have within the person's immediate control or to intentionally use or threaten to use a firearm while engaged in the commission of a separate felony. Thus, the language in HRS § 134-6(a) does not indicate that a prosecution under that statute is any different than a prosecution for committing any other offense.
Furthermore, Hawai`i case law implicitly supports allowing a defendant to be convicted of both HRS § 134-6(a) and the underlying felony. In State v. Moore, 82 Hawai`i 202, 921 P.2d 122 (1996), the defendant was convicted of attempted second degree murder, in violation of HRS §§ 707-701.5 and 705-500, and carrying or use of a firearm in the commission of a separate felony, in violation of HRS § 134-6(a). Id. at 205, 921 P.2d at 125. We affirmed both convictions. Id. at 225, 921 P.2d at 145. Cf. State v. Chung, 75 Hawai`i 398, 862 P.2d 1063 (1993) (remanding a case for further proceedings on two counts of terroristic threatening and one count of possession or use of a firearm in the commission of a felony). In State v. Brantley, 84 Hawai`i 112, 929 P.2d 1362, appeal decided by, 84 Hawai`i 126, 929 P.2d 1376 (App. 1996), the ICA reviewed a defendant's convictions of place to keep firearm, in violation of HRS § 134-6(b); kidnapping, in violation of HRS § 707-720(1)(d); carrying or use of a firearm in the commission of a separate felony, in violation of HRS § 134-6(a); and second degree murder, in violation of HRS § 707-701.5. Id. at 115, 929 P.2d at 1365. The ICA ultimately affirmed the convictions.(4) Id. at 125, 126, 929 P.2d at 1375, 1376. Although this court and the ICA could have reversed the HRS § 134-6(a) convictions based on the same reasoning applied by the majority in the present case, neither court did so. These cases demonstrate that Hawai`i courts have never interpreted HRS § 134-6(a) as requiring a choice between conviction of the underlying felony or conviction of the firearms offense.
Therefore, in my view, the legislature intended to allow defendants to be convicted of both a violation of HRS § 134-6(a) and the underlying felony. The majority's analysis, however, precludes convicting defendants of both offenses. Thus, the majority's analysis directly conflicts with the intent of the legislature and our prior case law.
The majority relies primarily on HRS § 701-109 for its conclusion that the underlying felony is an included offense of HRS § 134-6(a). HRS § 701-109(4)(a) (1993) provides that an included offense is one that "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Applying this statute, the majority reasons that the underlying felony is an included offense of HRS § 134-6(a) and then concludes that a defendant cannot be convicted of both offenses. However, as noted supra, the legislature's intent in enacting HRS § 134-6(a) was to permit conviction of both offenses. Therefore, in my view, the present case essentially amounts to a conflict between two statutes -- HRS § 701-109(4)(a) and HRS § 134-6(a).
We have often held that
where there is a "plainly irreconcilable" conflict between a general and a specific statute concerning the same subject matter, the specific will be favored. However, where the statutes simply overlap in their application, effect will be given to both if possible, as repeal by implication is disfavored.
State v. Vallesteros, 84 Hawai`i 295, 303, 933 P.2d 632, 640, reconsideration denied, 84 Hawai`i 496, 936 P.2d 191 (1997). HRS § 701-109(4)(a) is a general rule that defines included offenses for most situations. As a general proposition, included offenses are those that are "established by proof of the same or less than all the facts required to establish the commission of the offense charged." HRS § 134-6(a), however, is a specific statute that applies to a specific situation -- the carrying or use of a firearm during the commission of a felony. Thus, in the instant case we are presented with a conflict between a general statute and a specific statute. Nevertheless, I believe that it is possible to give effect to both statutes by construing HRS § 134-6(a) as an exception to HRS § 701-109(4)(a). While HRS § 701-109(4)(a) applies to most situations requiring the determination of whether one offense is an included offense of another, in the present case, HRS § 701-109(4)(a) must give way to a specific statute, HRS § 134-6(a), that embodies the intent of the legislature regarding a specific situation.
We have also held that
a rational, sensible and practicable interpretation of a statute is preferred to one which is unreasonable or impracticable because the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality.
Keliipuleole v. Wilson, 85 Hawai`i 217, 221-22, 941 P.2d 300, 304-05 (1997) (brackets, internal quotation marks, and citations omitted). The majority's analysis in the present case leads to an absurd result. Carrying or use of a firearm under HRS § 134-6(a) is a class A felony punishable by twenty years imprisonment. See HRS §§ 134-6(e) and 706-659 (1993 & Supp. 1996). Second degree murder is a felony punishable by life imprisonment with the possibility of parole. See HRS §§ 707-701.5(2) and 706-656(2) (1993). Under the majority's analysis, second degree murder is an included offense of HRS § 134-6(a). Thus, a crime punishable by life imprisonment is an included offense of a crime punishable by twenty years imprisonment. The absurdity of the situation is even more apparent when one considers the jury instruction trial judges would deliver. In part, the instruction would read: "If and only if you find the defendant not guilty of carrying or use of a firearm in the commission of a separate felony, or you are unable to reach a unanimous verdict as to this offense, then you must determine whether the defendant is guilty or not guilty of the included offense of murder in the second degree." See 1 Hawai`i Standard Jury Instructions -- Criminal, § 5.03, at 54 (1991); State v. Pinero, 70 Haw. 509, 524-25, 778 P.2d 704, 714 (1989) Thus, the jury would be directed first to decide if the defendant is guilty of violating HRS § 134-6(a), and only if it does not find the defendant guilty of that offense is it to consider whether he/she is guilty of murder in the second degree. Assuming that the defendant did, in fact, commit murder with a firearm, a jury following the court's instruction would convict the defendant only of violating HRS § 134-6(a) and never consider whether he/she is guilty of murder in the second degree. The defendant would then be sentenced to a twenty-year term of imprisonment. In contrast, if the defendant had used a knife instead of a firearm, he/she would be subject only to conviction of second degree murder and would be sentenced to life imprisonment with the possibility of parole.
Of course, the prosecution could respond to the majority's approach by initiating some practical measures. The prosecution will probably alter its charging policies in order to take into account the fact that, under the majority's analysis, a defendant can be convicted of the underlying felony or HRS § 134-6(a) but not both. Inasmuch as HRS § 134-6(a) is a class A felony, there would be no reason for the prosecution to charge the defendant with a firearms offense if the underlying felony provides for a penalty that is equal to or greater than the firearms offense. Why should the prosecution bring an HRS § 134-6(a) charge if it would then have to prove additional elements in return for the same or a lesser penalty? It would make more sense for the prosecution simply to charge the defendant with the underlying felony alone. Thus, the practical response of the prosecution would be simply to stop bringing HRS § 134-6(a) charges when the underlying felony is any class A felony, murder in the first degree, murder in the second degree, attempted murder in the first degree, or attempted murder in the second degree. Consequently, the only time the prosecution is likely to charge a defendant with an HRS § 134-6(a) violation would be when the underlying felony is a class B or C felony. However, we have held that "an interpreting court should not fashion a construction of statutory text that effectively renders the statute a nullity." Konno v. County of Hawai`i, 85 Hawai`i 61, 71, 937 P.2d 397, 407 (1997). The majority's approach effectively nullifies the statute, at least as far as murder-related offenses and class A felonies are concerned.
I also disagree with the majority's reliance on State v. Vinge, 81 Hawai`i 309, 916 P.2d 1210 (1996). In Vinge, we held that theft and attempted theft are included offenses of robbery in the first degree. Id. at 319, 916 P.2d at 1220. However, Vinge is distinguishable from the present case based on the offenses involved. Vinge involved robbery, and robbery is essentially a combination of theft and assault. The Commentary to HRS §§ 708-840 and 708-841 (1993) provides: "Basically, robbery appears to consist of both theft and threatened or actual assault." Thus, it is reasonable to treat theft as an included offense of robbery. However, the present case involves HRS § 134-6(a), carrying or use of a firearm. As discussed supra, the legislature intended to allow conviction of both the firearms offense and the underlying felony. Therefore, I believe that Vinge is distinguishable from the present case.
For these reasons, I disagree with the majority's analysis and would not hold that second degree murder is an included offense of carrying or use of a firearm in the commission of a separate felony.
B. Whether Double Jeopardy Bars Imposition of a Mandatory Minimum Term
Instead of deciding this case based on the included offense issue, I would decide the case based on double jeopardy principles. Jumila argues that the constitutional right against double jeopardy prevents imposition of "dual punishment" under both HRS § 706-660.1 and HRS § 134-6(a).
The Fifth Amendment to the United States Constitution provides in relevant part: "No person . . . shall be subject for the same offence to be twice put in jeopardy of life or limb[.]" Article I, section 10 of the Hawai`i Constitution provides in relevant part: "No person . . . shall be subject for the same offense to be twice put in jeopardy[.]" We have often recognized that double jeopardy is implicated in three types of situations. "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." State v. Tuipuapua, 83 Hawai`i 141, 148, 925 P.2d 311, 318 (1996) (quoting State v. Toyomura, 80 Hawai`i 8, 16, 904 P.2d 893, 901 (1995)). See also North Carolina v. Pearce, 395 U.S. 711, 717 (1969). It is clear that the present case does not involve successive prosecutions. Rather than being prosecuted in two separate proceedings, Jumila was convicted of two offenses, and subjected to punishment for those convictions, in a single proceeding. Thus, the first two protections described above do not apply to this case. Rather, it is the third protection -- multiple punishments -- that is implicated here.
Because we are dealing with the multiple punishment aspect of double jeopardy, a threshold question is whether the three statutes involved in this case impose "punishment" for double jeopardy purposes. HRS § 707-701.5, second degree murder, is a felony punishable by life imprisonment with the possibility of parole. See HRS §§ 707-701.5(2) and 706-656(2) (1993). HRS § 134-6(a), carrying or use of a firearm, is a class A felony punishable by twenty years imprisonment. See HRS §§ 134-6(e) and 706-659 (1993 & Supp. 1996). No one would deny that both life imprisonment and a twenty-year term of imprisonment constitute "punishment."
A more difficult question, however, is whether mandatory minimum terms imposed pursuant to HRS § 706-660.1 constitute "punishment." On its face, HRS § 706-660.1 appears to impose a form of punishment. Generally, minimum terms of imprisonment are set by the Hawai`i paroling authority. See HRS §§ 706-656, 706-659, 706-660, 706-669 (1993). However, under HRS § 706-660.1, minimum terms of imprisonment without the possibility of parole may be imposed by the trial court in certain circumstances. Thus, HRS § 706-660.1 limits the Hawai`i paroling authority's power to grant defendants parole and ensures that certain defendants will remain imprisoned regardless of whether the paroling authority would otherwise release them. Consequently, a mandatory minimum term clearly imposes an additional punishment upon those defendants.
The legislative history of HRS § 706-660.1 also indicates that the legislature intended mandatory minimum terms to constitute punishment. When the legislature originally enacted HRS § 706-660.1, it included a "[f]indings and purpose" section that provided in relevant part:
The legislature finds that alternative methods of discouraging the use of firearms such as stronger and more certain penalties should be instituted. it is the purpose of this Act in view of the increasing use of firearms in criminal actions to provide a deterrent effect against such use for the protection of the people in this State.
1976 Haw. Sess. L. Act 204, § 1, at 493 (emphasis added). See also Hse. Conf. Comm. Rep. No. 35, in 1976 House Journal, at 1143; Sen. Conf. Comm. Rep. No. 34-76, in 1976 Senate Journal, at 883.
In addition,
[w]e have repeatedly recognized that one provision of a comprehensive statute should be read in context of other provisions of that statute and in light of the general legislative scheme. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.
Kam v. Noh, 70 Haw. 321, 326-27, 770 P.2d 414, 417-18 (1989) (citation omitted). Because HRS § 706-660.1 is located in chapter 706 of the Hawai`i Penal Code, we may look to other sections in chapter 706 for guidance in determining whether mandatory minimum terms constitute "punishment." Chapter 706 includes sections addressing probation (HRS §§ 706-620 to 706-631), fines (HRS §§ 706-640 to 706-645), terms of imprisonment for first and second degree murder and attempted first and second degree murder (HRS §§ 706-656, 706-657), indeterminate terms of imprisonment for felonies (HRS §§ 706-659, 706-660), extended terms of imprisonment for felonies (HRS §§ 706-661, 706-662), terms of imprisonment for misdemeanors and petty misdemeanors (HRS § 706-663), and specialized treatment for young adult defendants (HRS § 706-667). Thus, the statutory scheme of chapter 706 deals with sentencing and penalties. Consistent with this scheme, HRS § 706-660.1 should be interpreted as a penalty or punishment.
Therefore, the threshold question posed above has been answered -- the three statutes involved in the present case impose "punishment" for double jeopardy purposes. The next question is what standard to apply in multiple punishment cases.
The federal standard interpreting the Double Jeopardy Clause of the United States Constitution was succinctly set forth in United States v. Lanzi, 933 F.2d 824 (10th Cir. 1991), as follows:
[T]he first step in the double jeopardy analysis is to determine whether the legislature intended that each violation be a separate offense. Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). If the legislature, as expressed in the language of the statute or its legislative history, clearly intended cumulative punishment under two different statutory provisions, the imposition of multiple punishment does not violate the Double Jeopardy Clause and the court's inquiry is at an end. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). If the legislative intent is unclear, however, the rule from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), must be applied. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. Then, the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.
Lanzi, 933 F.2d at 825-26 (internal quotation marks, brackets, and ellipses omitted). See also United States v. Smith, 962 F.2d 923, 932 (9th Cir. 1992).
We have previously stated that "[w]hen the [federal] interpretation of a provision present in both the United States and Hawai`i Constitutions does not adequately preserve the rights and interests sought to be protected, we will not hesitate to recognize the appropriate protections as a matter of state constitutional law." State v. Bowe, 77 Hawai`i 51, 57, 881 P.2d 538, 544 (1994). However, inasmuch as the federal double jeopardy standard in multiple punishment cases appears to protect the rights of defendants adequately, I would not extend the protection of the Hawai`i Constitution's Double Jeopardy Clause beyond the federal standard.
It is true that in State v. Lessary, 75 Haw. 446, 865 P.2d 150 (1994), we extended the protection of the Hawai`i Constitution beyond that of the United States Constitution. Id. at 457, 865 P.2d at 155. We adopted the "same conduct" test and rejected the current federal standard based on the "same elements" test. Id. However, there is a crucial distinction between Lessary and the present case -- Lessary involved successive prosecutions while the present case involves multiple punishments. Successive prosecutions raise significant dangers that are not present in multiple punishment situations. These concerns justify a more rigorous standard for successive prosecution cases.
Successive prosecutions . . . whether following acquittals or convictions, raise concerns that extend beyond merely the possibility of an enhanced sentence. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged. . . . [A] tremendous additional burden is placed on that defendant if he must face each of the charges in a separate proceeding.
Id. at 455-56, 865 P.2d at 154-55 (quoting Grady v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993)) (original brackets omitted). Thus, Lessary is distinguishable from the present case and does not require us to extend the protections of the Hawai`i Constitution beyond the federal standard in multiple punishment cases.
Furthermore, in multiple punishment cases, we have often avoided distinguishing between the protections afforded by the state and federal constitutions. In Tuipuapua, supra, we expressly adopted the federal standard applied in United States v. Ursery, ___ U.S.___, 116 S.Ct. 2135 (1996), regarding administrative forfeitures. Tuipuapua, 83 Hawai`i at 151, 925 P.2d at 321. Similarly, in Toyomura, supra, and State v. Higa, 79 Hawai`i 1, 897 P.2d 928 (1995), we "did not distinguish between the respective constitutional protections in the context of DUI." Toyomura, 80 Hawai`i at 11 n.5, 904 P.2d at 896 n.5.
Therefore, I would apply the standard described in Lanzi, supra, to multiple punishment cases under both the United States and Hawai`i Constitutions.(5)
Applying this standard to the statutes at issue in the present case, I would hold as follows. Double jeopardy does not prohibit punishment under both HRS § 134-6(a) (carrying or use of a firearm) and the underlying felony (in this case, HRS § 707-701.5, second degree murder). The first step in the analysis is to determine whether the legislature "clearly intended [to allow] cumulative punishment under two different statutory provisions." Based on the discussion in part I.A., supra, it is clear that the legislature did intend to allow cumulative punishment for both the firearms offense and the underlying felony. Thus, the "inquiry is at an end" and double jeopardy principles do not prevent a defendant from being punished for both offenses.
Similarly, double jeopardy does not prohibit punishment under both HRS § 707-701.5 (second degree murder) and HRS § 706-660.1 (mandatory minimum terms). HRS § 706-660.1 expressly states that a mandatory minimum term may be imposed "in addition to the indeterminate term of imprisonment provided for the grade of offense." Thus, the legislature clearly intended to allow cumulative punishment. A defendant can be sentenced to both an indeterminate term of life imprisonment with the possibility of parole as well as a mandatory minimum term.
However, a problem is presented by the issue of whether double jeopardy prohibits punishment under both HRS § 134-6(a) (carrying or use of a firearm) and HRS § 706-660.1 (mandatory minimum terms) when the application of both statutes is based on the same underlying felony (in this case, HRS § 707-701.5, second degree murder). Nothing in the language of HRS § 134-6(a) or HRS § 706-660.1 indicates whether the legislature contemplated this possibility. While the statutes do not expressly prohibit cumulative punishments, neither do they clearly indicate that cumulative punishments were intended. Similarly, the legislative histories of both statutes are silent and do not provide clear indication that the legislature intended cumulative punishments. Because the legislative intent is unclear, the Blockburger test must be applied.
Under Blockburger, double jeopardy prohibits cumulative punishments unless "each [statutory] provision requires proof of a fact which the other does not." Lanzi, 933 F.2d at 826 (quoting Blockburger, 284 U.S. at 304). It is important to note that, under this test, each statute must include an element that the other statute does not possess. Thus, one statute must possess an additional element, and the other statute must possess an additional element as well.
In the present case, to prove a violation of HRS § 134-6(a), the prosecution was required to prove that Jumila:
1. carried on his person or had within his immediate control, or used or threatened to use, a firearm,
2. knowingly so carried or had within immediate control, or intentionally so used or threatened to use,
3. while engaged in intentionally or knowingly causing the death of another person.(6)
In order to obtain a mandatory minimum term pursuant to HRS § 706-660.1, the prosecution was required to prove that Jumila:
1. had a firearm in his possession or threatened its use or used a firearm,
2. while engaged in intentionally or knowingly causing the death of another person.(7)
It is apparent that HRS § 134-6(a) requires proof that Jumila acted knowingly or intentionally with respect to his conduct in carrying or using the firearm. This additional mental state is not required for HRS § 706-660.1. Thus, HRS § 134-6(a) "requires proof of a fact which the other does not." However, the same cannot be said of HRS § 706-660.1. HRS § 706-660.1 does not require proof of a fact that HRS § 134-6(a) does not. There is no additional element in HRS § 706-660.1 that HRS § 134-6(a) does not also possess. Both require proof that Jumila was engaged in intentionally or knowingly causing the death of another person. And while the first elements of both statutes utilize slightly different language, they are materially the same. HRS § 134-6(a) requires that the firearm be "carr[ied] on the person or [had] within the person's immediate control." HRS § 706-660.1 requires that the firearm be "in the person's possession." However, possession is defined as follows:
The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
Black's Law Dictionary 1163 (6th ed. 1990) (emphases added). Thus, there is no material difference between, on the one hand, "carrying" or "having within one's immediate control" a firearm and, on the other hand, "possessing" a firearm. Both HRS § 134-6(a) and HRS § 706-660.1 include "using" or "threatening to use" a firearm. Therefore, the only material difference between the two statutes is that HRS § 134-6(a) requires proof of an additional mental state with respect to the firearm. It cannot be said that "each [statutory] provision requires proof of a fact which the other does not." Consequently, the Blockburger test has not been satisfied. I would hold that double jeopardy principles prevent imposition of cumulative punishments under both HRS § 134-6(a) and HRS § 706-660.1 when the application of both statutes is based on the same underlying felony.(8)
For the reasons discussed above, I would hold that the Double Jeopardy Clauses of the United States and Hawai`i Constitutions prohibit imposing both an indeterminate twenty-year term of imprisonment and a fifteen-year mandatory minimum term against Jumila. Therefore, I would vacate the mandatory minimum term and remand for resentencing without the mandatory minimum. However, inasmuch as I see no reason for interfering with Jumila's convictions, either based on included offense or double jeopardy principles, I would affirm his convictions of murder in the second degree and carrying or use of a firearm.
1. For the text of HRS § 706-660.1 (1993), see Majority, slip op. at 2-3 n.3.
2. For the text of HRS § 707-701.5 (1993), see Majority, slip op. at 2 n.1.
3. For the text of HRS § 134-6 (Supp. 1996), see Majority, slip op. at 2 n.2.
4. However, the ICA vacated the defendant's mandatory minimum sentence and remanded the case for resentencing. Brantley, 84 Hawai`i at 124-25, 929 P.2d at 1374-75 (citing Garringer v. State, 80 Hawai`i 327, 334, 909 P.2d 1142, 1149 (1996) (a mandatory minimum term cannot be imposed if the defendant was an accomplice who did not personally possess, threaten to use, or use a firearm while engaged in the commission of a felony)).
5. In State v. Santiago, 8 Haw. App. 535, 541-42, 813 P.2d 335, 338 (1991), and State v. Caprio, 85 Hawai`i 92, 102-03, 937 P.2d 933, 943-44 (App. 1997), the ICA claimed that a different standard applies under the Hawai`i Constitution. In my view, the ICA, in deciding Santiago and Caprio, improperly relied on dicta in prior cases that did not adequately address the distinction between multiple punishments and successive prosecutions. Therefore, I disagree with the ICA's analysis and would overrule Santiago and Caprio.
6. HRS § 134-6(a) actually states: "while engaged in the commission of a separate felony." However, in the present case, the felony involved is murder in the second degree. "When an offense requires the actual commission of an underlying crime, . . . the State is required to prove all of the conduct, attendant circumstances, and results of conduct that comprise the underlying crime." State v. Israel, 78 Hawai`i 66, 74, 890 P.2d 303, 311 (1995). Thus, the elements of murder in the second degree are incorporated as an element of the firearms offense.
7. HRS § 706-660.1 actually states: "while engaged in the commission of the felony [for which the defendant was convicted]." Here, that felony was murder in the second degree. Thus, the elements of murder in the second degree are incorporated as an element of HRS § 706-660.1.
8. In State v. Ambrosio, 72 Haw. 496, 824 P.2d 107, reconsideration denied, 72 Haw. 616, 829 P.2d 859 (1992), the defendant was convicted, inter alia, of kidnapping and violating HRS § 134-6(a). The trial court imposed mandatory minimum terms under HRS § 706-660.1 for both convictions. In a terse opinion by Justice Padgett, this court vacated the mandatory minimum term for the firearms offense because the legislature did not intend to impose two mandatory minimum terms. However, in Ambrosio, this court did not address the issue of whether cumulative punishments under HRS § 134-6(a) and HRS § 706-660.1 based on the same underlying felony violate double jeopardy principles. To the extent that Ambrosio permitted imposition of a mandatory minimum term based on the kidnapping offense when the same kidnapping offense provided the basis for the firearms offense, I would overrule Ambrosio.