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State v. Ganal5/8/1996
!--REF-->649 P.2d 363, 365 (1982) (emphasis added) (affirming a conviction for possession of a prohibited firearm, receiving, retaining or disposing of stolen property (firearm), and possession of a firearm by a person convicted of certain crimes); State v. Pia, 55 Haw. 14, 19, 514 P.2d 580, 585 (1973) (holding that a prosecution for both (a) assault or battery on a police officer in the performance of his duties with the intent to obstruct the officer in the discharge of those duties and (b) willful interference with a police officer while such officer is lawfully executing his duties did not violate the prohibition against double jeopardy). Counts I and II were adjudicated within the same trial, and the record shows that Ganal committed at least two separate "acts" independently violative of more than one statute. Under these circumstances, merger pursuant to HRS §§ 701-109(1)(a) and (4)(b) is clearly unwarranted.
Merger pursuant to HRS §§ 701-109(1)(a) and (4)(b) addresses a different situation than the instant case in which a defendant is charged with both the first degree murder and the attempted first degree murder of a single set of victims, all of whom die. Under such circumstances, merger quite sensibly precludes conviction for both the completed and the attempted first degree murder of the same victims, because attempted first degree murder is the inchoate form of the first degree murder.
In the instant case, however, where Count I involves only Ganal's deceased victims and Count II involves only Ganal's surviving victims, it is anomalous for the majority to contend that the attempted murder of the surviving victims is actually the murder of the deceased victims in choate form. Thus, it is clearly wrong for the majority to merge these two different statutory offenses when, as here, Ganal was charged with causing two different types of harm to two different sets of victims, through various independent acts.
The majority insists that the merger of all multiple-victim first degree murder charges is required because the majority believes that a first degree murderer necessarily has a "single intent" with respect to all of the intended victims. For example, the majority states the following:
If the trier of fact determines that the defendant had possessed separate intents to kill four individuals, four separate convictions for second degree murder for each of the victims would be proper, and one conviction for first degree murder for the four victims as a group, or two convictions for two groups of two people, would not be proper.
Majority at 56. However, neither the language nor the legislative history of HRS § 707-701(1)(a) requires that a murderer must have a "single intent" with respect to all of the intended victims in order to support a conviction for first degree murder, and thus, the majority cannot and does not cite any statutory language or legislative history supporting its flawed interpretation.
In 1986, when the Hawai'i legislature enacted the statutory offense of first degree murder by amending HRS § 707-701, the Hawai'i legislature specifically intended "that persons convicted of serial killings be subject to life imprisonment without parole." Conf. Comm. Rep. No. 51-86 in 1986 House Journal at 937, and in 1986 Senate Journal at 747 (emphasis added). Thus, "the offense of murder in the first degree was expanded to include the killing of more than one person in separate incidents." Conf. Comm. Rep. No. 51-86 in 1986 House Journal at 937, and in 1986 Senate Journal at 747 (emphasis added).<
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Hawaii Personal Injury Attorneys
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