STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. PAUL C. K. KAEO, Petitioner/ Defendant-Appellant.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorney for Petitioner/Defendant-Appellant:
Randall K. Hironaka of Miyoshi & Hironaka
Attorney(s) for Respondent/Plaintiff-Appellee:
Keith M. Kaneshiro, Prosecuting Attorney, Loren J. Thomas and Stephen K. Tsushima, Deputy Prosecuting Attorneys
NOTE: Order accepting Application for Writ of Certiorari, filed 12/24/13.
COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.
On November 12, 2013, Petitioner/Defendant-Appellant Paul C.K. Kaeo (Petitioner) timely filed an application for writ of certiorari (Application) to review the September 12, 2013 judgment of the Intermediate Court of Appeals (ICA), issued pursuant to its July 30, 2013 Summary Disposition Order.
Petitioner was charged with murder in the second degree. During his jury trial, the circuit court refused Petitioner’s requested jury instructions on assault in the first degree and assault in the second degree. The circuit court determined that Petitioner was not entitled to the requested instructions because the end results of assault and murder were different. At the conclusion of trial, the jury found Petitioner guilty of manslaughter.
On appeal to the ICA, Petitioner contended that the circuit court erred in refusing to submit Petitioner’s requested instructions to the jury because assault in the first degree and assault in the second degree are lesser included offenses of murder in the second degree under all three subsections of HRS § 701-109(4).
The ICA affirmed the circuit court’s judgment of conviction on the ground that the circuit court’s failure to instruct on assault in the first and second degree was harmless because the jury convicted Petitioner of the more serious offense of manslaughter.
In his Application, Petitioner contends that assault in the first and second degree are included offenses of murder in the second degree, the circuit court’s denial of the requested jury instructions was not harmless, and the ICA erred in affirming the judgment of conviction.