Also, if evidence was insufficient to support a conviction of a greater offense, but sufficient to support conviction of a lesser included offense, the court may remand for entry of judgment of conviction on the lesser included offense.
In State v. Line, No. 27850, slip op. (August 11, 2009) Police came to defendant-appellant’s house, without a warrant, in order to arrest her son. They found their way blocked by the (defendant-appellant) mother who braced herself into the doorway and told them, “Get the f— out of here. You need a search warrant.” Police eventually pushed past her into the house but failed to find the son. The mother grabbed the sleeve of one of the officers, tearing it and scratching the officer’s arm.
The mother was charged with Hindering Prosecution in the First Degree. She argued in the trial court that evidence of the officer’s pursuit of the son should be suppressed since officers had no right to arrest him without a warrant. The trial court denied the mother’s motion, holding that the police entry had been lawful.
On appeal, the ICA concluded that even if the entry had been unlawful it would not have any impact on the Hindering Prosecution charge, analogizing the case to Hawaii law that explicitly holds that an illegal arrest does not vitiate a charge of resisting arrest. (See, e.g. State v. Kachanian, 78 Hawaii 475, 896 P.2d 931 (App. 1995).
The Hawaii Supreme Court disagreed that the entry had been legal, but agreed with the ICA that an entry’s illegality does not justify physically resisting the police -
Although the entry by the police into the home was illegal, we are constrained to apply the hindering prosecution statute inasmuch as the risk of dangers associated with physically resisting such an intrusion at the time it occurs, outweighs whatever vindication of personal rights might be accomplished through physical resistance at that moment. Line at 26-7.
Nevertheless, the Supreme Court reversed the ICA on grounds that the first degree Hindering Prosecution charge was not supported by the evidence (a conviction of that charge would require that the mother knew the son had committed a felony, and there was no evidence of such knowledge). Noting that the evidence did however support a conviction for the lesser included charge of Hindering Prosecution in the Second Degree, the Supreme Court remanded the case for entry of conviction on the lesser included offense.
See Line at 36-7, citing State v. Malufau, 80 Hawai’i 126, 134, 136, 906 P.2d 612, 620, 622 (1995)(“[I]f an appellate court determines that the evidence presented at trial was insufficient to support a conviction of a greater offense, but sufficient to support conviction of a lesser included offense, the court may remand for entry of judgment of conviction on the lesser included offense”.
In this case, no jury instruction had been given on the lesser included offense, and the issue was apparently not raised on appeal. When the Supreme Court asked the parties for supplemental briefs on whether it should recognize plain error on the issue, the state in an amended supplemental brief actually admitted the lack of evidence for the conviction and requested that the conviction be reversed and remanded for dismissal with prejudice. Elation must have turned to disappointment in the petitioner’s camp when the court nevertheless ordered conviction on the lesser charge.
