§707-701.5  Murder in the second degree.  (1)  Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person; provided that this section shall not apply to actions taken under chapter 327L.

     (2)  Murder in the second degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-656. [L 1986, c 314, §50; am L 2018, c 2, §6]


COMMENTARY ON §707-701.5


  Act 2, Session Laws 2018, amended this section to provide that the offense of murder in the second degree does not apply to actions taken pursuant to chapter 327L, which allows an adult resident of the State with a medically confirmed terminal disease and less than six months to live to obtain a prescription for medication to end the person's life.  The amendment was included among several immunities established for persons or organizations acting in good faith compliance with chapter 327L, including physicians, their associates, and the facilities or institutions where they provide services.  Senate Standing Committee Report No. 3251.


Case Notes


  Jury's "not guilty" verdicts on attempted second degree murder counts created a double jeopardy bar to petitioner's impending retrial on attempted second degree murder charges, where jury returned a "guilty" verdict on attempted first degree murder charge and "not guilty" verdicts on attempted second degree murder counts, based on the same incidents, and Hawaii supreme court reversed jury's judgment of conviction of attempted first degree murder and held that the "not guilty" verdicts did not, in substance, constitute acquittals and therefore the State could retry petitioner for attempted second degree murder without subjecting petitioner to double jeopardy.  389 F.3d 880 (2004).

  Directs the factfinder to first consider the elements of first degree murder.  71 H. 86, 784 P.2d 860 (1989).

  Trial was reversed due to prosecutorial misconduct.  71 H. 347, 791 P.2d 392 (1990).

  Combination of acts of physical abuse and omissions to discharge parental duties and responsibilities, when coupled with requisite mental state, may rise to level of murder.  73 H. 236, 831 P.2d 924 (1992).

  Where petitioner's convictions on counts I (attempted first degree murder), II (second degree murder), and III (attempted second degree murder) violated §701-109(1)(c)'s clear prohibition against inconsistent factual findings, the failure to raise this issue, both at trial and on appeal, resulted in withdrawal of not only a potentially meritorious defense, but a defense that would have altered the outcome.  74 H. 442, 848 P.2d 966 (1993).

  Defendant charged with attempted murder, in violation of §705-500 and this section, may be convicted of attempted manslaughter, in violation of §§705-500 and 707-702(2).  80 H. 27, 904 P.2d 912 (1995).

  The offense of use of a firearm in the commission of second degree murder in violation of §134-6(a) is not an included offense of second degree murder in violation of this section.  87 H. 1, 950 P.2d 1201 (1998).

  As conviction for manslaughter due to an extreme mental or emotional disturbance under §707-702(2) is deemed an acquittal of murder, double jeopardy barred defendant's reprosecution for second degree murder under this section.  88 H. 356, 966 P.2d 1082 (1998).

  Defendant's drug-induced mental illness was not a defense to second degree murder under subsection (1) as adoption of such a rule would be contrary to the statutory scheme and legislative intent of §§702-230 and 704-400.  93 H. 224, 999 P.2d 230 (2000).

  Where evidence that child was a victim of battered child syndrome was relevant to show that child's death was not an accident, but the result of an intentional, knowing or reckless criminal act, giving rise to a duty on defendant's part to obtain medical care for child pursuant to §663-1.6, trial court did not err in admitting expert testimony that child was a victim of battered child syndrome.  101 H. 332, 68 P.3d 606 (2003).

  The trial court did not violate the double jeopardy clause of the Hawaii constitution by convicting defendant of attempted murder in the second degree under this section, and place to keep, and use of a firearm under §134-6, as each of the offenses contains elements which the others do not.  107 H. 469, 115 P.3d 648 (2005).

  Trial court reversibly erred when it gave flawed jury instruction on elements of murder in second degree, which led to improper closing argument by prosecutor, where defendants were charged with committing murder in second degree by voluntarily omitting to perform a duty imposed by law, more specifically, by omitting to perform their parental duty to provide timely medical care to son.  10 H. App. 43, 861 P.2d 24 (1993).

  Under §701-109(4)(a) and (c), reckless endangering in the first degree under §707-713 is an included offense of attempted murder in the second degree under this section.  94 H. 513 (App.), 17 P.3d 862 (2001).

  Where expert's testimony on the battered child syndrome was relevant to prove that the injuries to child were not accidental and that someone must have intended to harm child, trial court did not abuse discretion in admitting testimony.  101 H. 256 (App.), 66 P.3d 785 (2003).

  The head injuries inflicted on victim, the use of the kiawe branch, and the fact that victim was left in a dark, undeveloped area where victim would not be discovered until morning was substantial evidence of sufficient quality and probative value that defendant had the specific intent to kill victim.  103 H. 490 (App.), 83 P.3d 753 (2003).

  The recovery of a dead body is not a necessary condition for establishing murder.  122 H. 2 (App.), 222 P.3d 409 (2010).

  Taken as a whole, there were legitimate and reasonable inferences drawn from the evidence to support the jury's unanimous verdict convicting defendant of second degree murder where, inter alia, there were multiple witnesses who testified that decedent left the club with a person generally matching defendant's description in a vehicle that was of the same make and model as defendant's, and DNA evidence showed that defendant had sex with decedent within a short time frame that surrounded decedent's death.  126 H. 40 (App.), 266 P.3d 448 (2011).

  Assault in the first degree is a lesser included offense of murder in the second degree.  The circuit court erred in failing to instruct the jury on the included offense of assault in the first degree.  132 H. 451, 323 P.3d 95 (2014).

  Mentioned:  74 H. 197, 840 P.2d 374 (1992).