A petition to compel arbitration is reviewed de novo. The standard is the same as that which would be applicable to a motion for summary judgment, and the trial court’s decision is reviewed using the same standard employed by the trial court and based upon the same evidentiary materials as were before it in determination of the motion.

Douglass v. Pflueger Haw., Inc., 110 Hawai’i 520, 524-25, 135 P.3d 129, 133-34 (2006) (internal quotation marks, citations, and brackets omitted) (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 231, 921 P.2d 146, 151 (1996)). “[W]hen presented with a motion to compel arbitration, the court is limited to answering two questions: 1) whether an arbitration agreement exists between the parties; and 2) if so, whether the subject matter of the dispute is arbitrable under such agreement.” Hawaii Med. Ass’n v. Hawaii Med. Serv. Ass’n, 113 Hawai’i 77, 91, 148 P.3d 1179, 1193 (2006) (quoting Ko’olau Radiology, Inc. v. Queen’s Med. Ctr., 73 Haw. 433, 445, 834 P.2d 1294, 1300 (1992)). In this case, we are presented with the former question: whether an arbitration agreement exists which mandates arbitration.

“Arbitration is a matter of contract; so a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Sher v. Cella, 114 Hawai’i 263, 267, 160 P.3d 1250, 1254 (App. 2007) (internal quotation marks and citations omitted). “[A]n agreement should be construed as a whole and its meaning determined from the entire context and not from any particular word, phrase or clause.” Leeward Bus Co. v. City and County of Honolulu, 58 Haw. 64, 68-69, 564 P.2d 445, 448 (1977) (quoting Ching v. Hawaiian Rests. Ltd., 50 Haw. 563, 565, 445 P.2d 370, 372 (1968)). “Absent an ambiguity, contract terms should be interpreted according to their plain, ordinary, and accepted sense in common speech.” Hi Kai Inv., Ltd. v. Aloha Futons Beds & Waterbeds, Inc., 84 Hawai’i 75, 78, 929 P.2d 88, 91 (1996) (quoting Cho Mark Oriental Food v. K.K. Int’l, 73 Haw. 509, 520, 836 P.2d 1057, 1064 (1992)).

Noncompliance with the speed limit in violation of HRS § 291C-102 (2007) is punishable by only a fine pursuant to HRS § 291C-161 (2007), and, thus, it constitutes a “‘[t]raffic infraction’… for which the prescribed penalties do not include imprisonment[.]” HRS § 291D-2 (2007). “No Traffic infraction shall be classified as a criminal offense.” HRS § 291D-3(a) (2007). Under HRS Chapter 291D, contested traffic citations are adjudicated at a hearing before a district court. An adjudication in favor of the State of Hawai#i may be followed by a trial de novo before the district court conducted “pursuant to the Hawaii rules of evidence and the rules of the district court[.]” HRS § 291D-13(a) (2007). Rule 19(d) of the Hawai`i Civil Traffic Rules (HCTR) provides that “[a]ppeals from judgments entered after a trial may be taken in the manner provided for appeals from district court civil judgments.” HCTR Rule 19(d). Appeals from district court civil judgments are authorized by HRS § 641-1(a) (1993 & Supp. 2009) and, pursuant to HRAP Rule 4(a)(1), an appellant must file a notice of appeal within thirty days after entry of the judgment.

A. Double Jeopardy in “Successive Prosecution” Cases

1. U.S. and Hawai`i Constitutional prohibitions against double jeopardy

Article 1, section 10 of the Hawai`i Constitution provides the following protection: “nor shall any person be subject for the same offense to be twice put in jeopardy[.]” The fifth amendment to the United States Constitution similarly provides that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]” These constitutional safeguards are commonly referred to as providing protection against “double jeopardy.”

In State v. Lessary, 75 Haw. 446, 865 P.2d 150 (1994), this court pointed out that double jeopardy provides protection in three scenarios: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Lessary, 75 Haw. at 454, 865 P.2d at 154 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)).

2. “Successive prosecution,” “multiple prosecution,” and “multiple punishments”

“Successive prosecution” cases occur when the defendant is prosecuted for an offense, then is prosecuted a second time for the same offense after acquittal or conviction. “Multiple prosecution” (again “multiple prosecution,” not “multiple punishments”) cases occur when the defendant is prosecuted for the same offense at the same time in two different courts, e.g., district court and family court. Both “successive prosecution” and “multiple prosecution” cases require more than one prosecution. In contrast, in “multiple punishments” cases, there is a single prosecution after which the defendant is punished multiple times for the same offense.[15]

The Lessary facts presented one of the two “successive prosecution” scenarios (as distinguished from the “multiple punishments” scenario) following an alleged criminal episode (that spanned multiple hours) with his estranged wife as the victim. Lessary was charged by complaint in district court with terroristic threatening and kidnapping of his estranged wife (which was later amended to unlawful imprisonment). Id. at 449, 865 P.2d at 152-53. On the same day, Lessary was charged by complaint in family court with abuse of a family member. Id. at 449, 865 P.2d at 152. Lessary pled “no contest” to the abuse charge, and was sentenced to five days of incarceration and one year of probation. Id. at 449-50, 865 P.2d at 152. Lessary subsequently moved to dismiss the terroristic threatening and unlawful imprisonment charges on double jeopardy grounds. Id. at 450, 865 P.2d at 152. The motion to dismiss 656*656 was granted, and the prosecution appealed. Id. at 450-51, 865 P.2d at 152-53.

3. Possible tests in double jeopardy cases

In our analysis of double jeopardy in this “successive prosecution” case, this court discussed the three tests that courts have applied in determining whether offenses are the “same offense” for double jeopardy purposes:

1. The “same elements” test initially set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each requires proof of a fact which the other does not.” Lessary, 75 Haw. at 452, 865 P.2d at 153 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180)(alteration in original).

2. The “same conduct” test set forth in Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990): “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Lessary, 75 Haw. at 457-58, 865 P.2d at 155 (quoting Grady, 495 U.S. at 521, 110 S.Ct. 2084).

3. The “same episode” test set forth in Ashe v. Swenson, 397 U.S. 436, 453-54, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring): “all offenses `that grow out of a single criminal act, occurrence, episode, or transaction’” are considered to be the “same offense” for double jeopardy purposes. Lessary, 75 Haw. at 458, 865 P.2d at 155-56 (quoting Ashe, 397 U.S. at 453-54, 90 S.Ct. 1189).

4. The Lessary “same conduct” test is used in “successive prosecution” cases.

After discussing each of these tests in the context of the Lessary “successive prosecution” facts, we rejected the application of the Blockburger “same elements” test and the Ashe “same episode” test. Lessary, 75 Haw. at 457-59, 865 P.2d at 155-56. With respect to the “same episode” test, we concluded that while the double jeopardy clause should protect an individual from being twice put in jeopardy for a single act, it should not protect an individual from separate prosecutions for separate acts. Id. at 458, 865 P.2d at 156. With respect to the Blockburger “same elements” test, we concluded that its protection was inadequate in “successive prosecution” cases because its focus on the statutory definitions of offenses did not prevent the government from initiating multiple prosecutions against an individual based on a single act as long as the subsequent prosecutions were for offenses with “different” elements. Id. at 456-57, 865 P.2d at 155.

We held that the Hawai`i Constitution provides greater protection against “successive prosecutions” than does the United States Constitution, and adopted the “same conduct” test in “successive prosecution” cases:

Although the double jeopardy clause of the United States Constitution does not bar the prosecution of either the Unlawful Imprisonment or Terroristic Threatening charges, we hold that the Hawai`i Constitution provides greater protection against multiple prosecutions than does the United States Constitution. The double jeopardy clause of the Hawai`i Constitution prohibits the State from pursuing multiple prosecutions of an individual for the same conduct. Prosecutions are for the same conduct if any act of the defendant is alleged to constitute all or part of the conduct elements of the offenses charged in the respective prosecutions. Under the “same conduct” test, prosecution of the Unlawful Imprisonment charge is barred while prosecution of the Terroristic Threatening charge is allowed.
Id. at 462, 865 P.2d at 157.

We take this opportunity to reconfirm that the “same conduct” test is the proper test to be applied in “successive prosecution” cases to determine whether an offense is the “same offense” for double jeopardy purposes under our Hawai`i Constitution.

B. Double Jeopardy in “Multiple Punishments” Cases

1. Jumila, Brantley, and lesser included offenses (HRS § 701-109)

We most recently addressed the issue of double jeopardy in “multiple punishments” cases in State v. Jumila, 87 Hawai`i 1, 950 P.2d 1201 (1998), and State v. Brantley, 99 Hawai`i 463, 56 P.3d 1252 (2002).

In Jumila, we held that convictions of both second-degree murder (HRS § 707-701.5) and use of a firearm in commission of a felony (HRS § 134-6) were improper under HRS § 701-109 because the second-degree murder charge was an included offense of the firearm charge. Jumila, 87 Hawai`i at 3, 950 P.2d at 1203.

In Brantley, a plurality opinion with three justices concurring separately, we overruled Jumila; we held that a defendant can be convicted of both use of a firearm in the commission of a separate felony and the separate felony, despite the HRS § 701-109 statutory prohibition, where the legislature intended to allow convictions for both offenses. Brantley, 99 Hawai`i at 469, 56 P.3d at 1258. While the double jeopardy constitutional argument was implicated to the extent that the plurality opinion and concurring opinion of Justice Levinson acknowledged that HRS § 701-109 must be construed to provide the minimum protections afforded by the fifth amendment’s double jeopardy clause, the parties and this court focused on the statutory interpretation of HRS § 701-109. Id. at 469 n. 8, 56 P.3d at 1258 n. 8.

These cases, however, primarily involved interpretation of HRS § 701-109 (1993), entitled “Method of prosecution when conduct establishes an element of more than one offense,” which provides:

(1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. The defendant may not, however, be convicted of more than one offense if:
(a) One offense is included in the other, as defined in subsection (4) of this section; or
….
(4) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.
In contrast, in this case, Feliciano bases his claims of double jeopardy violations on the double jeopardy clause of the Hawai`i Constitution. We will thus address the issue, for the first time, of which test we should apply to determine whether an offense is the “same offense” under the double jeopardy clause of the Hawai`i Constitution in multiple punishments cases.

2. Lessary, Blockburger, and Dixon

In Lessary, we explained that we will only extend the double jeopardy protections of the Hawai`i Constitution if we find that the protections afforded by the United States Constitution are inadequate. Lessary, 75 Haw. at 454, 865 P.2d at 154. Our analysis must thus begin with the protections provided under the United States Constitution in the “multiple punishments” scenario. In Blockburger, a “multiple punishments” case, the United States Supreme Court ruled that the double jeopardy clause protects defendants from receiving multiple punishments for the same offense, even in a single prosecution, and created the “same elements” test to implement that protection. As stated earlier herein, the Blockburger test held that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each requires proof of a fact which the other does not.” Lessary, 75 Haw. at 452, 865 P.2d at 153 (quoting Blockburger, 658*658 284 U.S. at 304, 52 S.Ct. 180). Put simply, in a “multiple punishments” case, if each offense has an element that the other does not, then there is no double jeopardy clause violation.[16] In United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the Supreme Court vigorously debated the issue of whether to apply the “same elements” or “same conduct” tests to “successive prosecution” cases before overruling Grady and holding that the “same elements” test applies; it appears settled at the federal level that the “same elements” test applies in “multiple punishments” cases as well as in “successive prosecution” cases.

3. The “same elements” test protects a defendant’s double jeopardy rights and interests in a “multiple punishments” case.

Again, we have not previously adopted a test for determining whether an offense is the “same offense” under the double jeopardy clause of the Hawai`i Constitution in “multiple punishments” cases.[17] Feliciano argues that the “same conduct” test this court has adopted for “successive prosecution” cases should apply to his “multiple punishments” case because: (1) it comports with the common sense notions of double jeopardy protections; and (2) it prohibits legislative “end-runs” around his constitutional double jeopardy protections.

We do not believe, however, that it is necessary to extend the protection of the Lessary “same conduct” test to “multiple punishments” cases. First, the rights and interests protected by the double jeopardy clause, as it applies in “multiple punishments” cases, are adequately preserved by the “same elements” test:

[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint 659*659 on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense…. Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).[18] In other words, the double jeopardy clause (as applied in “multiple punishments” cases) ensures that the courts cannot punish a defendant beyond what is authorized by the legislature. As such, the “same elements” test adequately preserves the protections afforded by the double jeopardy clause because it focuses on whether the legislature intended to allow the imposition of multiple punishments for the commission of a particular act, and ensures that the courts cannot punish a defendant beyond what was intended.

Second, in “multiple punishments” cases, we do not have the same concerns that caused us to apply the Lessary “same conduct” test in “successive prosecution” cases. As we expressed in Lessary, the dangers in “successive prosecution” cases are as follows:

Successive prosecutions, however, whether following acquittals or convictions, raise concerns that extend beyond merely the possibility of an enhanced sentence[.] The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity[.] Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged. Even when a State can bring multiple charges against an individual under Blockburger, a tremendous additional burden is placed on that defendant if he must face each of the charges in a separate proceeding.
Lessary, 75 Haw. at 455-56, 865 P.2d at 154-55 (quoting Grady, 495 U.S. at 518-19, 110 S.Ct. 2084)(alterations in original). Third, a legislative “end-run” around constitutional double jeopardy protections is not possible so long as the legislature acts within its power to define criminal offenses and to set the punishment for those convicted of these offenses. See Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (“[T]he legislative power to define offenses and to prescribe the punishments to be imposed upon those found guilty of them resides wholly with the Congress.”); State v. Rivera, 106 Hawai`i 146, 158, 102 P.3d 1044, 1056 (2004) (“[T]he power to determine appropriate punishment for criminal acts lies in the legislative branch.)” (Quoting State v. Bernades, 71 Haw. 485, 490, 795 P.2d 842, 845 (1990).); Bernades, 71 Haw. at 490, 795 P.2d at 845 (stating further that the “courts cannot interfere unless the punishment prescribed appears clearly and manifestly to be cruel and unusual”). In “multiple punishments” cases, the double jeopardy clause serves as a constraint on the courts, ensuring that the court cannot impose punishment upon a defendant that is greater than what the legislature has authorized. As such, it is not possible to have a legislative end-run as long as the legislature is acting within its power.

The dissent disagrees with our analysis, contending that the “same conduct” test should be applied as Lessary is not limited to “successive prosecution” cases, and that Lessary extended double jeopardy protections against the legislature. We respectfully disagree. The facts of Lessary, discussed infra, show successive prosecution for abuse, terroristic threatening, and unlawful imprisonment, and not a multiple punishments scenario. As clearly stated by Justice Ramil in 660*660 Jumila, a multiple punishments case decided after Lessary:

“[T]here is a crucial distinction between Lessary and the present case — Lessary involved successive prosecutions while the present case involves multiple punishments. Successive prosecutions raise significant dangers that are not present in multiple punishment situations. These concerns justify a more rigorous standard for successive prosecution cases.
Jumila, 87 Hawai`i at 12, 950 P.2d at 1212 (Ramil, J., dissenting)(emphasis added). In addition, the dissent in Brantley acknowledged that Lessary did not decide the issue of whether the “same conduct” or “same elements” test applies to multiple punishments situations:

The question of whether State v. Lessary, 75 Haw. 446, 865 P.2d 150 (1994), or Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), applies to multiple punishments in a single prosecution has not been answered by this court. See Tomomitsu v. State, 93 Hawai`i 22, 31, 995 P.2d 323, 332 (App.2000)(Acoba, J. concurring) (“The supreme court has not expressly indicated which test applies under the Hawai`i Constitution in the multiple punishments situation.”)
Brantley, 99 Hawai`i at 485, 56 P.3d at 1274 (Acoba, J., dissenting)(footnote omitted).

The dissent’s contention that Lessary extended our double jeopardy protections against the legislature is belied by our subsequent decisions in Jumila and Brantley. In Jumila, discussed infra, we stated that the legislature could, if it desired, create an exception to the statutory prohibition set forth in HRS § 701-109 against convictions for both an offense and an offense included therein. Jumila, 87 Hawai`i at 4-5, 950 P.2d at 1204-05. In Brantley, we found that the legislature indeed did intend to permit convictions of both HRS § 134-6(a) and the separate felony (the included offense), and held that a defendant can be convicted of both offenses. Brantley, 99 Hawai`i at 469, 56 P.3d at 1258.

Our jurisprudence on this issue, grounded in the belief that the double jeopardy clause is primarily a restriction on the courts and the prosecution, which allows the legislature (within the boundaries of the eighth and fourteenth Amendments to the United States Constitution and article I, section 12 of the Hawai`i Constitution) to define crimes and fix punishments, is consistent with the jurisprudence of the United States Supreme Court. In addition, with the exception of Indiana cited in the dissent, we have been unable to locate any other jurisdiction, state or federal, whose majority has agreed with the dissent’s argument; the dissent’s premise (with the exception of Indiana) has been espoused solely in dissents. See, e.g., Missouri v. Hunter, 459 U.S. 359, 370, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (Marshall, J., dissenting) (stating that the legislature cannot authorize multiple punishments). We reject the dissent’s argument as it is contrary to the double jeopardy jurisprudence of the United States Supreme Court and this court.[19] We consequently hold that the double jeopardy clause does not constrain the legislature from intentionally imposing multiple punishments upon a defendant for separate offenses arising out of the same conduct.

In conclusion, we believe that the protections afforded by the United States Constitution, as set forth in the Blockburger “same elements” test, adequately protect against double jeopardy in “multiple punishments” cases.

It is a well-settled principle that a criminal defendant’s conviction will be reversed where the complaint, indictment, oral charge, or information is defective in such a way that it fails to state an offense:
It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977)[; accord State v. Israel, 78 Hawai'i 66, 69-70, 890 P.2d 303, 306-07 (1995); State v. Elliott, 77 Hawai'i 309, 311, 884 P.2d 372, 374 (1994)]. Put differently, the sufficiency of the charging instrument is measured, inter alia, by “whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he [or she] must be prepared to meet[.]” State v. Wells, 78 Hawai’i 373, 379-80, 894 P.2d 70, 76-77 (1995) (citations and internal quotation marks omitted) (brackets in original). “A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.” Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 (citations omitted).

[State v.] Merino, 81 Hawai’i [198,] 212, 915 P.2d [672,] 686 [ (1996) ] (some brackets added and some in original). In other words, an oral charge, complaint, or indictment that does not state an offense contains within it a substantive jurisdictional defect, rather than simply a defect in form, which renders any subsequent trial, judgment of conviction, or sentence a nullity. See Israel, 78 Hawai’i at 73, 890 P.2d at 310 (quoting Elliott, 77 Hawai’i at 311, 884 P.2d at 374 (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244)); Elliott, 77 Hawai’i at 312, 884 P.2d at 375 (“the omission of an essential element of the crime charged is a defect in substance rather than form”) (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244); Territory v. Koa Gora, 37 Haw. 1, 6 (1944) (failure to state an offense is a “jurisdictional point”); Territory v. Goto, 27 Haw. 65, 102 (1923) (Peters, C.J., concurring) (“[f]ailure of an indictment[,] [complaint, or oral charge] to state facts sufficient to constitute an offense against the law is jurisdictional[;] . . . an indictment[,] [complaint, or oral charge] . . . is essential to the court’s jurisdiction,” (brackets added)); HRS § 806-34 (1993) (explaining that an indictment may state an offense “with so much detail of time, place, and circumstances and such particulars as to the person (if any) against whom, and the thing (if any) in respect to which the offense was committed, as are necessary[,]” inter alia, “to show that the court has jurisdiction, and to give the accused reasonable notice of the facts”). That being the case, reversal of a conviction obtained on such a defective accusation does not require a showing of prejudice. See Elliott, 77 Hawai’i at 311, 884 P.2d at 374 (agreeing with the ICA that inasmuch as defendant could not demonstrate and did not assert prejudice where an element was omitted from an oral charge, “[t]he question, then, is whether the oral charges can be reasonably construed to charge [the defendant] with the offenses [of which the defendant was convicted]” (some brackets added and some in original) (citation and quotation signals omitted)); State v. Yonaha, 68 Haw. 586, 586-87, 723 P.2d 185, 185-86 (1986) (conviction obtained on oral charge reversed for failure to state “element” of intent; prejudice not addressed); State v. Faulkner, 61 Haw. 177, 177-78, 599 P.2d 285, 285-86 (1979) (same); State v. Borochov, 86 Hawai’i 183, 193, 948 P.2d 604, 614 (App.1997) (reversing conviction because charge could not be reasonably construed to state an offense). Cf. State v. Sprattling, 99 Hawai’i 312, 320, 55 P.3d 276, 284 (2002) (noting that if an indictment merely omits a word rather than “an essential element of the offense, the harmless error doctrine is applicable” and a defendant who challenges the omission for the first time on appeal must demonstrate substantial prejudice). This is because a defect in a complaint is not one of mere form, which is waivable, nor simply one of notice, which may be deemed harmless if a defendant was actually aware of the nature of the accusation against him or her, but, rather, is one of substantive subject matter jurisdiction, “which may not be waived or dispensed with,” see Jendrusch, 58 Haw. at 281, 567 P.2d at 1244, and that is per se prejudicial, see [State v.] Motta, 66 Haw. [89,] 91, 657 P.2d [1019,] 1020 [ (1983) ] (quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir.1965)).

Cummings, 101 Hawai’i at 142-43, 63 P.3d at 1112-13 (some brackets in original and some added) (ellipses in original) (emphasis in original).

Our case law further supports the proposition that an appellate court may nevertheless remand for entry of judgment of conviction and resentencing as to any offenses adequately set forth in the accusation (i.e., the complaint, indictment, oral charge, or information).

In the original decision, United States v. Lemus, the court had upheld the warrantless search of a defendant’s apartment into which the defendant had unsuccessfully tried to retreat when police arrived to arrest him. According to the court, “officers were there in an instant, taking hold of Lemus and handcuffing him before he could fully enter the doorway.” Officers then entered the apartment where they found stuffed between the cushions of a couch a weapon for which the defendant was charged.

I practice a lot of Fourth Amendment law. It’s one of my specialties. I regularly write suppression motions for a number of criminal defense attorneys (just a plug, there, for the local bar). And given the facts of this case, I would have assumed I had a slam dunk. I find in this case a disturbing retreat from the presumption of the home’s inviolability absent exceptional circumstances. Judge Kozinski’s indignant rant dissent is worth quoting at some length -

Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.” (Citation). The place where warrantless searches are deemed “presumptively unreasonable.” (Citation).

Government encroachment into the home, which I lamented three years ago in United States v. Black (citation) has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus’s home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.
…
How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plainview case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.

This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch?

Where an identical issue of fact was necessarily decided, in a judgment on the merits, in a former trial where the party against whom it is now offered was a party, and where he had a full and fair opportunity to litigate the issue, we think the prior judgment is entitled to some evidentiary weight. This is especially true where the prior judgment was a criminal one, because of the extensive safeguards afforded defendants in criminal trials. In addition to the right to counsel, and in many cases the right to a jury trial, the defendant has the additional advantage provided by the reasonable doubt standard.

[A]lthough not conclusive, the prior judgment should be admissible as evidence where the following factors are present: (1) It must be shown that the issue on which the judgment is offered was necessarily decided in the prior trial. (2) A judgment on the merits must have been rendered. (3) It must appear that the party against whom the judgment is offered had a full and fair opportunity at the prior hearing to litigate the claim, and especially to contest the specific issue on which the judgment is offered. In other words, it must appear that the party against whom the judgment is offered had a full and complete “day in court” on that issue, with the opportunity to call and cross-examine witnesses and to be represented by counsel. Where these requirements are met, there is good authority for the proposition that the prior judgment is entitled to evidentiary weight.
…

Under [this] rule…it will be possible to admit the convictions that seem reliable and trustworthy indicators, be they for major or minor offenses, based upon whether the proceedings leading to each conviction seem to have afforded the defendant a full and complete opportunity to have his day in court, while avoiding use of convictions that seem unreliable because they are based upon proceedings that were largely perfunctory.

Even where a conviction is admissible, it is not conclusive evidence, and the party against whom it is admitted may rebut it by other evidence.

The Supreme Court clarified that, while the conviction was admissible as evidence, it was not admissible for impeachment because “a conviction for heedless and careless driving bears no rational relation to a witness’ credibility.”

Finally, the appellate court reversed the trial court’s refusal to admit the prior transcript for impeachment where the defendant’s testimony had been at variance with his prior testimony in the criminal trial.

However, as of today, Article I, Section 14 of the Hawaii Constitution does guarantee such a right. In State v. Mundon, No. 28448, slip op. (Hawaii November 13, 2009),the Hawaii Supreme Court announced that “a criminal defendant has a constitutional right to confer with counsel at all stages of his case, including recesses taken during his testimony” Id. at 61 (emphasis in original).

[W]e adopt the …proposition that any order barring communication between a defendant and his attorney, at least when that communication would not interfere with the orderly and expeditious progress of the trial, violates a criminal defendant’s state constitutional right to counsel.

(The court emphasized that the trial court retains its discretion over whether, when, and for how long to grant recesses and that this opinion doesn’t mean that a trial court is required to call a recess whenever a defendant wishes to confer with counsel.)

Unfortunately for the defendant Mundon, this newly minted right failed to carry the day since a majority of the court decided to review such errors under the ‘harmless beyond a reasonable doubt’ standard – a sort of ‘no-harm-no-foul’ rule under which, if there was no reasonable possibility that the trial court’s error contributed to the defendant’s conviction, then the error was harmless and not grounds for overturning the conviction.The majority determined that such was the case here.

Nevertheless, luckily for the defendant he didn’t need the assistance of counsel issue and most of his convictions were vacated and remanded for a new trial on separate grounds; and the defendant hit a home run when the court reversed his remaining conviction (on a terroristic threatening charge) on grounds that the court failed to provide the jury with a ‘specific unanimity instruction.’

(This is actually an interesting issue (at least for the defense bar) and deserves its own post. But briefly: the defendant was charged with two separate counts of terroristic threatening. One involved allegedly threatening the complaining witness in a truck with a knife, and the other involved allegedly threatening the complaining witness later outside the truck with the knife.  He was convicted of one count and acquitted of the other. However, it was never made clear to the jury which incident corresponded to which count. So it was impossible to tell whether the jury was unanimous (as required for a conviction) that the defendant had committed the acts of one of the counts, or whether some of the jury thought he was guilty of one of the counts while others on the jury thought he was guilty of the other count. In other words, it is impossible to know, when the jury was voting on whether the defendant was guilty of one of the terroristic threatening charges, whether they were all thinking of the same incident or whether some were thinking of the incident inside the truck while others were thinking of the incident outside the truck. Because he had been acquitted of one of the counts, but nobody could say which one, it would potentially violate the defendant’s Fifth Amendment right against double jeopardy to try him again on either count. Thus his conviction on that count was reversed rather than vacated and remanded.)

Unfortunately, the previous article I linked to has disappeared behind a registration wall.