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State v. Ganal5/8/1996
51-86, in 1986 Senate Journal, at 747 ("The offense of murder in the first degree is expanded to include the killing of more than one person in separate incidents. Your Committee intends that persons convicted of serial killings be subject to life imprisonment without parole."); see also Sen. Stand. Comm. Rep. No. 820-86, in 1986 Senate Journal, at 1168-69.
As written, the elements of first degree murder under HRS § 707-701(1) (a) therefore are that: (1) the defendant caused the death of more than one person in the same or separate incident; and (2) the defendant did so intentionally or knowingly. All that is required by the statute is that the defendant's requisite state of mind be to kill multiple people and that the defendant in fact cause the death of multiple people. The same principle applies to attempted murder in the first degree: a defendant commits attempted murder in the first degree when the defendant intentionally engages in conduct, which, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended or known to be practically certain to cause the death of more than one person in the same or separate incident. See HRS §§ 705-500(1) (b), 705-500(2), 707-701(1)(a), and 702-206(2) (c). Thus, merger of convictions for murder in the first degree and attempted murder in the first degree under HRS §§ 701-109(1)(a) and (4)(b) may be appropriate despite the fact that the substantive charge and the attempt charge are based on two distinct groups of victims. In other words, the fact that a substantive charge and an attempt charge are based on two distinct groups of victims will not, in itself, preclude the application of statutory merger under HRS §§ 701-109(1) (a) and (4)(b).
Yet this is not to say that statutory merger will apply to all convictions for first degree murder and attempted first degree murder where the two convictions concern distinct groups of victims. The dispositive issue is the character of the defendant's requisite homicidal state of mind. As we noted in State v. Castro, 69 Haw. 633, 653, 756 P.2d 1033, 1047 (1988):
The test to determine whether the defendant intended to commit more than one offense in the course of a criminal episode is whether the evidence discloses one general intent or discloses separate and distinct intents. If there is but one intention, one general impulse, and one plan, there is but one offense.
Id. (citations omitted); see also State v. Alston, 75 Haw. 517, 531, 865 P.2d 157, 165 (1994). In the present case, Ganal convincingly argues that he started one fire with a single intent to kill in Kailua; yet Joshua and Kalah Touchette formed part of the basis for the first degree murder count, and Michael and Wendy formed part of the basis for the attempted first degree murder count. Ganal essentially argues that the fact that he started one fire at Kailua establishes that he had one intent to kill that spanned both the first degree murder and the attempted first degree murder counts. We agree. Given the fact that the jury determined that Ganal intended to kill all of the occupants at the Touchette home, we believe that it is impossible for anyone logically to conclude that Ganal, having started a single fire at the Touchette home in Kailua, possessed anything other than a single intent to cause the deaths of all of the occupants therein.
However, the number and the respective locations of the victims raises the potential that each of the charges was independently support
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