I concur in part and dissent in part. In my view, the circumstances of this case warrant the imposition of an enhanced sentence under HRS § 706- 657.
The facts of this case indicate that Defendant stood in the area where Paul Ulbrich was sitting. As Ulbrich got up to leave, Defendant, without any provocation, took a large construction hammer out of his back pocket, followed Ulbrich, and hit Ulbrich with the hammer with tremendous force. Defendant struck Ulbrich on his back and head. After the first hit, Ulbrich fell face forward onto the concrete deck. Defendant, clutching the hammer with both hands, struck Ulbrich three more times on the head and back. Defendant continued to bludgeon Ulbrich's back and skull with both the claw end and the blunt end of the hammer. Defendant would pause after each blow and assess the injuries to Ulbrich. A student driving around the corner fronting Burger King heard the sounds of the blows over the noise from his car's engine and radio twenty to twenty-five feet away. Defendant then fled the scene and left Ulbrich for dead. The police found Ulbrich, bloodied and brain-exposed, lying where he had fallen. Ulbrich was still alive, making a gurgling sound from his mouth. Ulbrich was taken to Queen's Medical Center where he lived for two more hours before dying.
Despite these circumstances exhibiting depravity, the Majority insists that the circuit court, as finder of fact, erred in finding that the murder was "especially heinous, atrocious, or cruel" simply because "the circuit court's finding that the victim's screams could be heard at a considerable distance" was not supported by sufficient evidence. The Majority arrives at its holding by interpreting the plain language of HRS § 706-657 to require proof that the victim of a crime actually suffered "unnecessary torture" in order to apply the enhanced sentencing provisions. In so doing, the Majority has frustrated the underlying intent of the legislature in enacting HRS § 706-657, which was to give judges discretion to impose a life sentence without parole where the "circumstances [of a killing] demonstrate that the individual who committed the crime is exceptionally depraved, and hence should not be considered eligible for parole." Our foremost obligation is to ascertain and give effect to the intent of the legislature in the construction of a statute. See infra pp. 3-4. In this case, I disagree that the language of HRS § 706-657 is as plain and unambiguous as the Majority suggests. Therefore, I do not believe that we should be so eager to frustrate the clear legislative intent to give the circuit court discretion to impose a life sentence without parole under HRS § 706-657 where the circumstances undoubtedly demonstrate exceptional depravity on the part of a defendant.
I have recently expressed the view that
[a]bsent constitutional obstacles, we have long recognized that our foremost obligation in construing a statute is to ascertain and give effect to the intent . . . of the legislature to the fullest degree. See CARL Corp. v. State, Dept. of Educ., 85 Hawai`i 431, 459, 946 P.2d 1, 29 (1997); see also Kim v. Contractors License Bd., 88 Hawai`i 264, 269, 965 P.2d 806, 811 (1998) (quoting Korean Buddhist Dae Won Sa Temple of Hawaii, 87 Hawai`i 217, 229-30, 953 P.2d 1315, 1327-28 (1998) (quoting State v. Cullen, 86 Hawai`i 1, 8-9, 946 P.2d 955, 963-64 (1997))); Kawamata Farms, Inc. v. United Agri Products, 86 Hawai`i 214, 255, 948 P.2d 1055, 1096 (1997) (quoting State v. Wells, 78 Hawai`i 373, 376, 894 P.2d 70, 73, reconsideration denied, 78 Hawai`i 474, 896 P.2d 930 (1995)); Macabio v. TIG Ins. Co., 87 Hawai`i 307, 311, 955 P.2d 100, 104 (1998) (citing State v. Aluli, 78 Hawai`i 317, 320, 893 P.2d 168, 171 (1995)); Richardson v. City and 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) (citing Methven-Abreu v. Hawaiian Ins. & Guar. Co., Ltd., 73 Haw. 385, 392, 834 P.2d 279, 284, reconsideration denied, 73 Haw. 625, 838 P.2d 860 (1992) (citation omitted)). Therefore, notwithstanding the rules of statutory construction, our paramount objective in construing a statute is to ascertain and give effect to the intent of the legislature.
Although it is true that we obtain the intent of the legislature primarily from the language of the statute itself, we have rejected an approach to statutory construction which limits our inquiry to the bare words of a statute. Four Star Ins. Agency, Inc. v. Hawaiian Elec. Indus., Inc., 89 Hawai`i 427, 431, 974 P.2d 1017, 1021 (1999) (quoting Bragg v. State Farm Mut. Auto Ins. Co., 81 Hawai`i 302, 306, 916 P.2d 1203, 1207 (1996) (quoting Sato v. Tawata, 79 Hawai`i 14, 17, 897 P.2d 941, 944 (1995)). Instead, we must consider the words of a statute in the context of the entire statute and construe it in a manner consistent with its purpose. See Shipley v. Ala Moana Hotel, 83 Hawai`i 361, 364-65, 926 P.2d 1284, 1287-88 (1996) (quoting State v. Toyomura, 80 Hawai`i 8, 19, 904 P.2d 893, 904 (1995)); see also Mendes v. Hawaii Ins. Guar. Ass'n, 87 Hawai`i 14, 17, 950 P.2d 1214, 1217 (1998) (citing Mathewson v. Aloha Airlines, Inc., 82 Hawai`i 57, 71, 919 P.2d 969, 983 (1996)).
In considering the meaning of the words in a statute, "[t]he legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction[,] and illogicality." Kim, 88 Hawai`i at 270, 965 P.2d at 812 (quoting State v. Arceo, 84 Hawai`i 1, 19, 928 P.2d 843, 861 (1996) (citation and internal quotation marks omitted)); see also HRS § 1-15(3) (1993) (providing that "[e]very construction which leads to an absurdity shall be rejected"). To determine whether an interpretation of a statute will yield an absurd result, we may consider "[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning." HRS § 1-15(2) (1993). Further, "[l]aws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another." State v. Ake, 88 Hawai`i 389, 395, 967 P.2d 221, 227 (1998) (quoting HRS § 1-16 (1993)). Indeed,
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.
Four Star, 89 Hawai`i at 431, 974 P.2d at 1021 (quoting Bragg, 81 Hawai`i at 306, 916 P.2d at 1207 (quoting Sato, 79 Hawai`i at 17, 897 P.2d at 944)) (emphasis added); see also Kahana Sunset Owners Ass'n v. Maui County Council, 86 Hawai`i 132, 134, 948 P.2d 122, 124 (1997) (quoting Crompton v. Tern Corp., 83 Hawai`i, 6, 924 P.2d 169, 175 (1996) (citation omitted)).
State v. Dudoit, 90 Hawai`i 262, 276-77, 978 P.2d 700, 714-15 (1999) (Ramil, J., dissenting). In light of our foremost obligation to ascertain and give effect to the intent of the legislature, I disagree with the Majority's use of the bare words of HRS § 706-657 to contravene the clear intent of the legislature.
A. The Intent of the Legislature in HRS § 706-657
We have previously stated that the words of a statute are only a starting point in the construction of a statute. See, e.g., Shipley, 83 Hawai`i at 364-65, 926 P.2d at 1287-88. Yet, the Majority effectively concludes that the phrase "unnecessarily torturous," as used in HRS § 706-657, is so plain and unambiguous that it justifies a departure from the legislature's clear intent. With this proposition, I cannot agree.
HRS § 706-657 provides in relevant part:
The court may sentence a person who has been convicted of murder in the second degree to life imprisonment without possibility of parole under section 706-656 if the court finds that the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity or that the person was previously convicted of the offense of murder in the first degree or murder in the second degree in this State or was previously convicted in another jurisdiction of an offense that would constitute murder in the first degree or murder in the second degree in this State. As used in this section, the phrase "specially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime which is unnecessarily torturous to a victim and "previously convicted" means a sentence imposed at the same time or a sentence previously imposed which has not been set aside, reversed, or vacated.
(Emphases added.) In my view, a fair reading of this language indicates that the focus of HRS § 706-657 is the level of depravity exhibited by a defendant's actions as demonstrated by the surrounding circumstances of the crime. (1) I disagree that this language "clearly imposes" upon the prosecution the burden of proving beyond a reasonable doubt from a subjective stand point that the victim suffered unnecessary torture and that the defendant intentionally or knowingly inflicted unnecessary torture on the victim.
Unlike the Majority, I do not read the words "which is unnecessarily torturous to the victim" in a vacuum. (2) By qualifying "a conscienceless or pitiless crime" with the clause "which is unnecessarily torturous to a victim," the legislature envisioned that certain circumstances of a murder would, as a matter of course, lead to the inference that the murder resulted in torture to the victim that was, a fortiori, unnecessary. (3) The legislature did not intend to require proof beyond a reasonable doubt that the victim, from a subjective standpoint, actually suffered torture. In other words, in determining whether a crime is "especially heinous, atrocious, or cruel, manifesting exceptional depravity[,]" the sentencing court must consider whether the circumstances of the crime were so "conscienceless or pitiless" that would allow an inference that the victim suffered "unnecessary" torture. Therefore, the phrase "conscienceless or pitiless crime which is unnecessarily torturous to the victim" implies that the circumstances of the crime indicate that the defendant disregarded the likelihood that his or her actions would result in "unnecessary" torture to the victim and that the circumstances of the crime allow an objective inference that the victim suffered "unnecessary" torture. (4)
Indeed, the legislative history of HRS § 706-657 reveals that the legislature intended to give sentencing courts discretion to impose a life sentence without the possibility of parole where the circumstances of the crime demonstrate exceptional depravity on the part of the defendant. See Stand. Comm. Rep. No. 1171, in 1993 House Journal, at 1470. As the house judiciary committee observed:
Your Committee believes the better approach is to leave the current murder in the first degree statute as is, but to give the court discretion, based upon the circumstances of the crime, and without the necessity of limiting itself to a specific type of offense, to judge when the circumstances of the murder justify the imposition of a life sentence without parole.
Such discretion should, your Committee believes, be limited to those situations where the circumstances demonstrate that the individual who committed the crime is exceptionally depraved, and hence should not be considered eligible for parole.
Therefore, your Committee has amended this bill by deleting all provisions creating the categories of "aggravated murder" and "murder" and adding new language giving discretion to the judge to sentence an individual, in a second degree murder evidencing exceptional depravity, to life without parole.
Id. (emphasis added). Contrary to the Majority's holding that "the prosecution must prove beyond a reasonable doubt that the victim suffered unnecessary torture[,]" the legislature did not indicate that the prosecution must prove that a murder victim must undergo actual torture or suffering, or that the defendant intended to inflict unnecessary torture. Instead, the legislature focused solely on the depravity of the defendant and his or her actions in considering whether a sentencing court should exercise its discretion to impose a life sentence without parole. In other words, neither the actual suffering of the victim nor the defendant's intent to actually inflict unnecessary suffering is relevant except to the extent that they demonstrate depravity. Thus, the relevant factors in deciding whether to impose an enhanced sentence is the depravity of the defendant and his or her actions as demonstrated by the circumstances of the crime.
Given the language and legislative history of HRS § 706-657, it is clear that the legislature intended that sentencing courts exercise their discretion to sentence a defendant to life without parole where the circumstances of the crime demonstrate exceptional depravity on the part of the defendant. This unmistakable legislative intent is inconsistent with the Majority's requirements that the victim actually suffer unnecessary torture and that the defendant intended to inflict unnecessary torture. Accordingly, I would hold that enhanced sentencing under HRS § 706-657 is proper where circumstances of the crime indicate that the defendant was aware of and disregarded the likelihood that his or her actions would result in "unnecessary" torture to the victim and that the circumstances of the crime allow a reasonable inference that the victim suffered "unnecessary" torture.
The circumstances surrounding the murder of Ulbrich in this case present the classic situation for imposition of an enhanced sentence under HRS § 706-657. In this case, without any provocation, Defendant attacked Ulbrich using a large construction hammer. Defendant struck the victim with both the blunt end and the claw end of the hammer. Defendant struck the victim repeatedly. As Defendant pounded Ulbrich with the hammer, Defendant grunted loudly. After each successive blow with the hammer, Defendant would pause and assess the injuries to Ulbrich. At times, Defendant used both of his hands holding the hammer and striking the victim. The sounds of the blows could be heard over twenty feet away over the noise of a car's radio and engine. Defendant's hammering of Ulbrich's head caused Ulbrich's skull to fracture like a "cracked walnut." Under these circumstances, regardless of whether the prosecution could prove that Ulbrich subjectively suffered "unnecessary torture," I cannot say that the circuit court erred in finding that the crime was "especially heinous, atrocious, or cruel, manifesting exceptional depravity." Indeed, Defendant's actions constituted "a conscienceless or pitiless crime" that could only have resulted in "unnecessary" torture to Ulbrich. (5) I therefore disagree that the circuit court, as the trier of fact in this case, was clearly erroneous in finding that the murder was "especially heinous, atrocious, or cruel."
B. The Absurd Results of the Majority's Interpretation
In my view, the Majority's judicially created requirements of proof beyond a reasonable doubt that a murder victim actually suffered "unnecessary torture" and that the defendant intended to inflict "unnecessary torture" leads to absurd results. Inasmuch as a murder victim is, by definition, deceased, it is unclear what type of evidence would support an enhanced sentence under HRS § 706-657. Without exception, the victim of a murder will not be able to testify as to the degree of torture he or she suffered. The prosecution must therefore rely on circumstantial evidence to prove the victim's subjective suffering and the defendant's subjective intent to inflict unnecessary suffering. In cases where there are no eye-witnesses to hear or observe indications of suffering by the victim (e.g., screams), the prosecution may find it nearly impossible to prove that the victim suffered torture. Although the prosecution could conceivably rely on expert testimony with respect to the probability and extent to which a murder victim suffered torture, the uncontroverted testimony in this case that Ulbrich's skull was "like a cracked walnut" and that the time elapsed between the attack and the time of death exceeded two hours is, according to the Majority, insufficient to support a finding that Ulbrich suffered "unnecessary torture."
By vacating the enhanced sentence in this case, the Majority allows defendants who have committed murder in which there may be difficulty in obtaining evidence of "unnecessary torture" to escape an enhanced sentence under HRS § 706-657 no matter how heinous or depraved the circumstances of the murder may be. Unlike the Majority, I believe that HRS § 706-657 must be applied in a way that addresses the actions of a defendant in committing the murder as opposed to the degree of suffering by a victim. By judicially imposing a new requirement that the prosecution prove beyond a reasonable doubt that the victim suffered unnecessary torture, the Majority effectively frustrates the intent of the legislature and ignores our proper role of interpreting statutes to give effect to the intent of the legislature. See Kim, 88 Hawai`i at 270, 965 P.2d at 812 (noting that, because legislature is presumed not to intend an absurd result, we will construe a statute to avoid inconsistency, contradiction, and illogicality).
Therefore, I cannot agree with the Majority's construction of the words "which is unnecessarily torturous to a victim" in a vacuum. Instead, in deciding whether to impose a life term without the possibility of parole under HRS § 706-657, the circuit court must focus on the depravity of the defendant's actions and the heinous nature of the circumstances of the murder. Specifically, I believe a life sentence without the possibility of parole is proper where circumstances of the crime indicate that defendant disregards the likelihood that his or her actions would result in torture to the victim and where the circumstances of the crime allow a reasonable inference that the victim suffered torture. Because the Majority's strict construction of the bare words of HRS § 706-657 leads to an absurd result, I disagree with the Majority's conclusion that this court must adhere to the plain meaning of the language used in HRS § 706-657.
Accordingly, because the Majority's opinion construes HRS § 706-657 without regard to the clear legislative intent underlying this section in derogation of our foremost obligation to give effect to the intent of the legislature, I respectfully dissent from sections III.C.2 and III.C.3 of the Majority Opinion.
1. The Majority attempts to ignore the legislative history of HRS
§ 706-657 by characterizing the statutory language as
unambiguous. To arrive at its conclusion that the victim must
actually suffer "unnecessary torture," 3. In my view, the word "unnecessary" as used in this context
contemplates a level of torture that is beyond the level of
torture inherent in all murders that may be inferred by virtue of
the depraved actions of the defendant. Interestingly, although
the Majority holds that "the prosecution must prove beyond a
reasonable doubt that the victim suffered unnecessary torture[,]"
the Majority fails to adequately define the word "unnecessary" as
used in this context or to explain the difference between
"unnecessary torture" and torture that is necessary. After all,
any kind of "torture" is arguably "unnecessary." It is also
difficult to imagine how a depraved killing of a person would not
amount to severe suffering. In any event, the fact that the term
"unnecessary torture" is essentially circular illustrates one of
the problems of the Majority's construction of HRS § 706-657.
4. In this regard, I agree with the Majority that "there must be
a 'principled way to distinguish' those cases in which an
enhanced sentence is imposed from those in which it is not."
Majority at 25. I further agree that
HRS § 706-657 does not expressly refer to the defendant's state of mind; it states that the murder must be a "conscienceless or pitiless crime". The question of whether the defendant felt guilt or pity, however, necessitates an inquiry as to the defendant's state of mind. In the context of an enhanced sentencing statute, a "conscienceless or pitiless crime["] indicates a requisite state of mind beyond that necessary to prove the underlying offense.
Majority at 27. Therefore, as discussed above, the phrase "conscienceless or pitiless crime which is unnecessarily torturous to the victim" implies that the circumstances of the crime indicate that the defendant disregarded the likelihood that his or her actions would result in "unnecessary" torture to the victim and that the circumstances of the crime allow a reasonable inference that the victim suffered "unncessary" torture.
I do not agree, however, that the victim must actually
suffer "unnecessary torture" or that the defendant intended to
inflict unnecessary torture. The state of mind required by HRS §
706-657 is that Defendant recklessly disregarded the substantial
likelihood that his/her actions would result in torture to the
victim. Although the Majority insists that the state of mind of
the defendant with respect to the enhanced sentencing statute
must be intentional or knowing, the concept of "conscienceless"
contemplates that the person without a conscience is not aware
(i.e., does not know) of his or her depravity.
5. Given the circumstances of the crime, I cannot agree with the
Majority that the record does not support a finding that Ulbrich
suffered "unnecessary torture." The ambulance arrived at 7:10
a.m. Ulbrich was admitted to the Queen's Medical Center
Emergency Room at approximately 7:29 a.m. Ulbrich was not
pronounced dead until 9:19 a.m. Although I do not mean to
suggest that Ulbrich was undoubtedly conscious during these two
hours, the fact finder could have reasonably concluded that
Ulbrich suffered some sort of torture at some point during this
period even given Dr. Keep's testimony. In any event, I do not
agree that HRS § 706-657 requires proof beyond a reasonable doubt
that the victim suffer "unnecessary torture." Under the
circumstances of the instant case, I believe that Defendant
disregarded the likelihood that his or her actions would result
in torture to Ulbrich and that the circumstances of the crime
allow a reasonable inference that Ulbrich suffered "unnecessary"
torture.