§701-111  When prosecution is barred by
former prosecution for a different offense.  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; or



(b)  Any offense for which the defendant should
have been tried on the first prosecution under section 701-109 unless the court
ordered a separate trial of the offense; or



(c)  An offense based on the same conduct,
unless:



(i)  The offense for which the defendant is
subsequently prosecuted requires proof of a fact not required by the former
offense and the law defining each of the offenses is intended to prevent a
substantially different harm or evil; or



(ii)  The second offense was not consummated when
the former trial began.



(2)  The former prosecution was terminated by an
acquittal or by a final order or judgment for the defendant which has not been
set aside, reversed, or vacated and which acquittal, final order, or judgment
necessarily required a determination inconsistent with a fact which must be
established for conviction of the second offense.



(3)  The former prosecution was improperly terminated,
as improper termination is defined in section 701-110(4), and the subsequent
prosecution is for an offense of which the defendant could have been convicted
had the former prosecution not been improperly terminated. [L 1972, c 9, pt of
§1]



 



COMMENTARY ON §701-111



 



  This section parallels §701-110, but has to do with different
offenses rather than the same offense.  It would thus, for example, be the
appropriate section to use in the case of a new prosecution for an offense
already prosecuted for under the law existing prior to the effective date of
this Code.  In short, it forbids reprosecuting when the defendant has
previously been prosecuted for an offense arising out of the same factual
situation in certain specified cases.  The section must be read in conjunction
with §701-109(2) which requires joinder of trials of "multiple offenses
based on the same conduct or arising from the same episode."  Both
§701-109(2) and §701-111 effectuate the policy of preserving the defendant from
numerous and vexatious prosecutions.



  Subsection (1) applies where the former prosecution resulted
in a conviction or an acquittal and the subsequent prosecution is either (a)
for any offense of which the defendant could have been convicted in the first
prosecution (e.g., an included offense), (b) for any offense for which the
defendant should have been tried at the earlier trial under §701-110, or (c)
for an offense based on the same conduct, unless proof of a fact not required
by the former prosecution is required and the law defining each offense is
intended to prevent a substantially different harm or evil, or unless the
second offense was not consummated when the former trial began.



  Subsection (2) is an important provision, giving a sort of
collateral estoppel effect to a former prosecution resulting in acquittal or
final order or judgment for the defendant which required a determination
inconsistent with a fact which must be established for conviction of the second
offense.  As an example of how this would work, we may take the case of an
injury caused by allegedly reckless driving by D.  Suppose, for example, that D
is first charged with a traffic offense which by definition is limited to
reckless driving, and the case results in an explicit determination that, under
all the circumstances, D was not reckless.  If D is later charged with
manslaughter, which requires proof of recklessness,[1] D would be entitled to
an acquittal.  D would not, however, be able to avoid a trial for negligent
homicide, which requires proof of a lesser degree of culpability.



  Subsection (3) deals with the case of improper termination of
a prosecution.  The defendant may not later be tried for an offense of which
the defendant could have been convicted had the former prosecution not been
improperly terminated.  Once the trial has begun, only exceptional circumstances
should permit the State to discontinue it.  Otherwise the defendant may be
prejudiced by having the defendant's trial tactics exposed and the defendant's
witnesses subjected to unfair pressures.



 



Case Notes



 



  In 1970, prior to the enactment of the Penal Code, the
Supreme Court adopted the standard set forth in §111 of the Proposed Draft,
Hawaii Penal Code 1970, as "a satisfactory approach" to the problem
of when a former prosecution for a different offense (i.e., violation of a different
statutory provision) will constitute a bar to a current prosecution.  The court
quoted subsection (1)(c)(i).  The entire section was adopted by the Legislature
without change.  See State v. Ahuna, 52 Haw. 321, 326, 474 P.2d 704 (1970). 
See also State v. Pia, 55 H. 14, 514 P.2d 580 (1973), which dealt primarily
with §701-109.



  Subsection (1)(c) applies only when §701-109(2) does not
apply.  59 H. 92, 576 P.2d 1044.



  Section does not prevent a retrial of charges brought
together pursuant to section 701-109.  70 H. 332, 770 P.2d 420.



  Appellate determination that insufficient evidence was
presented at trial to support a conviction does not constitute an
"acquittal", as that term is used in paragraph (1); thus, retrial on
lesser included offenses following such determination did not violate paragraph
(1)(c).  80 H. 126, 906 P.2d 612.



  When a defendant is charged in a single indictment or
complaint and one or more counts are terminated on a basis unrelated to factual
guilt or innocence, retrial not barred by §701-109(2) and paragraph (1)(b);
thus, defendant's retrial on place to keep firearms charge under §134-6 not
barred.  88 H. 389, 967 P.2d 221.



  Where charged offenses in search warrant case and drug buy
case arose from the "same episode" inasmuch as defendant's conduct
was "so closely related in time, place and circumstances that a complete
account of one charge could not have been related without referring to the
details of the other charge", trial court erred in denying defendant's
motion to dismiss based upon the prosecution's failure to join the search
warrant offenses and the drug buy offenses in a single prosecution.  118 H. 44,
185 P.3d 229.



  Trial court did not err when it interpreted the relevant
provisions of paragraph (1)(b) and §701-109(2) as prohibiting the court from
granting defendant's pretrial motion to dismiss where the three charges against
the defendant were based upon incidents occurring on different dates and at
different places under distinct circumstances, and were patently not "based
on the same conduct or arising from the same episode".  108 H. 195 (App.),
118 P.3d 678.



 



__________



§701-111 Commentary:



 



1.  Cf. §707-702.