Haw. Rev. Stat. § 706-657
The court may sentence a person who was eighteen years of age or over at the time of the offense and who has been convicted of murder in the second degree to life imprisonment without the possibility of parole under section 706-656 if the court finds that the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity or that the person was previously convicted of the offense of murder in the first degree or murder in the second degree in this State or was previously convicted in another jurisdiction of an offense that would constitute murder in the first degree or murder in the second degree in this State. As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime which is unnecessarily torturous to a victim and "previously convicted" means a sentence imposed at the same time or a sentence previously imposed which has not been set aside, reversed, or vacated.
Hearings to determine the grounds for imposing an enhanced sentence for second degree murder may be initiated by the prosecutor or by the court on its own motion. The court shall not impose an enhanced term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed. Subject to the provision of section 706-604, the defendant shall have the right to hear and controvert the evidence against the defendant and to offer evidence upon the issue.
The provisions pertaining to commutation in section 706-656(2), shall apply to persons sentenced pursuant to this section.
HRS § 706-657
COMMENTARY ON § 706-657
Act 271, Session Laws 1993, added this section to give discretion to the court to sentence an individual, in a second degree murder case evidencing exceptional depravity, to life imprisonment without possibility of parole under § 706-656. The legislature felt that this discretion should be limited to those situations in which the circumstances demonstrate that the individual who committed the crime is exceptionally depraved, and therefore should receive the enhanced sentence. House Standing Committee Report No. 1171, Senate Standing Committee Report No. 689.
Act 15, Session Laws 1996, amended this section to provide that a court may sentence a person convicted of murder in the second degree to life imprisonment without the possibility of parole, if the person had a prior conviction for murder. The Act addressed the problem encountered by the prosecution in Briones v. State,74 Haw. 442 (1993), in attempting to obtain a conviction of the defendant for murder in the first degree for killing two persons. The supreme court held in Briones v. State that the defendant must have had the prior intent or state of mind to kill two persons before the defendant killed the first person, for a conviction for murder in the first degree, which has a sentence of life imprisonment without parole. The legislature's intent was to permit a court to sentence a defendant to life imprisonment without the possibility of parole when the defendant commits two or more murders. Senate Standing Committee Report No. 2592, House Standing Committee Report No. 221-96.
The findings necessary to impose an enhanced sentence under this section must be made by the trier of fact; if the prosecution elects to seek an enhanced sentence pursuant to this section, it must be alleged in the complaint. 92 H. 19, 986 P.2d 306. Section requires State to prove, beyond a reasonable doubt, that the victim suffered unnecessary torture and that the defendant intentionally or knowingly inflicted unnecessary torture upon the victim; "unnecessary torture" means the infliction of extreme physical or mental suffering, beyond that which necessarily accompanies the underlying killing.93 Haw. 224,999 P.2d 230. Trial court erred in imposing enhanced sentence under this section where court's findings of fact regarding whether victim screamed or incurred defensive wounds were clearly erroneous and there was no substantial evidence that victim suffered unnecessary torture.93 Haw. 224,999 P.2d 230. Jury's findings whether murder was "especially heinous, atrocious, or cruel, manifesting exceptional depravity"; unanimity requirement clarified. 95 H. 1, 18 P.3d 203. Section not unconstitutionally vague as section provides adequate guidance to a fact-finder charged with determining whether a murder was "especially heinous, atrocious, or cruel, manifesting exceptional depravity" and provides adequate notice to the person of ordinary intelligence that an enhanced sentence may be imposed if he or she intentionally or knowingly inflicts unnecessary torture on the murder victim and the victim in fact suffers unnecessary torture.95 Haw. 1,18 P.3d 203. Sentence for murder not an extended term. 6 H. App. 409,723 P.2d 186.