State v. DeLeon.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
07-SEP-2018
08:22 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
PHILLIP DEJESUS DELEON,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 09-1-1237)
SEPTEMBER 7, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
Defendant Phillip DeLeon was charged with, inter alia,
Murder in the Second Degree of Shawn Powell. The charges stemmed
from a late-night confrontation between DeLeon and a group of men
that included Powell and Jermaine Beaudoin, which resulted in
DeLeon fatally shooting Powell in the chest. In support of
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DeLeon’s claim of self-defense, DeLeon sought to introduce
evidence of Powell’s and Beaudoin’s prior violent acts under
Hawaii Rules of Evidence (HRE) Rules 404 and 405, to show their
violent or aggressive character. Hawaii law permits defendants
to introduce evidence of victims’ prior violent acts for that
purpose, but only if there is a factual dispute as to whether the
defendant or the victim was the first aggressor. See State v.
Lui, 61 Haw. 328, 329, 603 P.2d 151, 154 (1979). The circuit
court denied DeLeon’s request after finding that there was no
factual dispute that DeLeon was the first aggressor, and DeLeon
was convicted of Powell’s murder. The Intermediate Court of
Appeals (ICA) affirmed, and DeLeon now seeks certiorari review.
As an initial matter, we hold that a victim’s violent
or aggressive character is an “essential element” of a self-
defense claim for purposes of determining admissibility under HRE
Rule 405. Accordingly, specific instances of conduct, such as a
victim’s prior violent acts, can be used as a method of proving
character in such circumstances under HRE Rule 405.
We further hold that the circuit court erred in finding
no factual dispute as to who was the first aggressor. We also
conclude that the error was not harmless. Accordingly, we vacate
the ICA’s December 13, 2017 Judgment on Appeal and the circuit
court’s August 5, 2015 Judgment, and remand the case for further
proceedings.
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I. Background
A. Prior Proceedings
On August 5, 2009, the State indicted DeLeon for eight
charges, including: Attempted Murder in the First Degree (Count
I), in violation of Hawaii Revised Statutes (HRS) §§ 705-500,
707-701(1)(a), and 706-656; Murder in the Second Degree (Count
II), in violation of HRS §§ 707-701.5 and 706-656; Attempted
Murder in the Second Degree (Count III), in violation of HRS
§§ 705-500, 707-701.5, and 706-656; Carrying or Use of Firearm in
the Commission of a Separate Felony (Counts IV and V), in
violation of HRS §§ 134-21, 705-500, 707-701.5, and 706-656;
Place to Keep Pistol or Revolver (Count VI), in violation of HRS
§ 134-25; Reckless Endangering in the First Degree (Count VII),
in violation of HRS § 707-713; and Ownership or Possession
Prohibited of Any Firearm or Ammunition By a Person Indicted for
Certain Crimes (Count VIII), in violation of HRS §§ 134-7(b) and
(h). The Grand Jury identified the following people as victims:
Shawn Powell in Counts I and II, Justin Gamboa in Counts I and
III, Jermaine Beaudoin in Count VII, and Lane Akiona in Count
VII.
On October 1, 2010, a jury found DeLeon not guilty of
Count I, guilty of Count III’s lesser-included offense of
Reckless Endangering in the First Degree, and guilty as charged
of all other counts. On appeal, the ICA vacated the Count V
conviction and affirmed the remaining convictions. On certiorari
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review, this court vacated the circuit court’s judgment of
conviction and sentence on Counts II and IV only,1 and remanded
the case to the circuit court for further proceedings on those
counts. State v. DeLeon, 131 Hawaii 463, 486, 489, 319 P.3d
382, 405, 408 (2014). Accordingly, Counts II and IV are the only
charges at issue in this appeal.2
B. Instant Circuit Court Proceedings
Prior to his re-trial, DeLeon filed an “Amended Notice
of Intent to Rely on Hawaii Rules of Evidence, Rule 404(b)
Evidence,” which sought to introduce evidence of Powell’s and
Beaudoin’s prior bad acts to support DeLeon’s position that
Powell and Beaudoin were the first aggressors. DeLeon
specifically sought to introduce evidence that Powell had struck
prosecution witness Joseph Chang “while Chang was attempting to
physically separate [Powell] and a Reynold Borges” in 2007, and
also that Powell was convicted of two counts of Assault in the
Third Degree on June 13, 2000. The motion also sought to
introduce Powell's January 31, 1994 Disorderly Conduct and
November 15, 1995 Criminal Property Damage convictions. DeLeon
sought to introduce evidence that Beaudoin was convicted of
Assault in the Third Degree on October 29, 1998, Assault in the
Second Degree on August 8, 2000, and was arrested for two counts
1
Thus, DeLeon was found guilty, inter alia, of Reckless Endangering
in the First Degree (Count VII) of Beaudoin and/or Akiona.
2
Count II is Murder in the Second Degree of Powell. Count IV is
the accompanying Carrying or Use of Firearm in the Commission of a Separate
Felony.
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of Assault in the Third Degree on January 12, 2003.
Trial commenced on April 7, 2015.3
1. Essential Testimony from the State’s Case-in-Chief
a. Beaudoin’s Testimony
Beaudoin testified that on July 31, 2009, after a night
of drinking at various bars, he, Powell, and Justin Gamboa
arrived at Bar Seven at around 2:00 a.m. Later in the night at
Bar Seven, Beaudoin saw Powell and DeLeon “having a
confrontation.” Beaudoin described Powell and DeLeon as “holding
each other behind the head, and with their heads stuck to each
other, arguing.” Beaudoin testified that he then walked over to
Powell and DeLeon to stop them, saying “stop it, relax, cool
down.” Beaudoin testified that DeLeon swore at him, at which
point Beaudoin slapped DeLeon. Beaudoin further testified that
the bouncers came in at that point and escorted DeLeon out of the
bar.
Beaudoin testified that he, Powell, and Gamboa stayed
at Bar Seven until around 3:30 a.m., at which point they went to
another bar called Seoul Karaoke, which is adjacent to a
restaurant called Sorabol. They entered Seoul Karaoke but were
told that it was closing, so they left. As Beaudoin, Powell, and
Gamboa were walking back to their vehicle in the parking lot,
they heard someone yelling at them. When they started
approaching that person, they recognized him, later identified as
3
The Honorable Colette Y. Garibaldi presided.
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DeLeon, as the person from Bar Seven with whom Powell and
Beaudoin had a confrontation. According to Beaudoin, he, Powell,
and Gamboa told DeLeon, “[n]o, everything is cool.” As the three
continued to approach DeLeon, DeLeon opened the trunk of his
vehicle, pulled out a gun, and immediately started shooting at
them. Beaudoin testified that one of the shots hit Powell in the
chest, causing Powell to fall to the ground beside Beaudoin.
Beaudoin then “went on the ground and tried to get away. And
that’s when [DeLeon] started shooting towards [Beaudoin and
Gamboa].” DeLeon then drove away in his vehicle.
On cross-examination, Beaudoin testified that in two
separate interviews with a detective on July 31, 2009, and at a
prior proceeding on August 5, 2009, Beaudoin did not mention that
DeLeon was yelling at him, Powell, and Gamboa before they
approached DeLeon in the Sorabol parking lot.
b. Chang’s Testimony
Joseph Chang testified that he was with a group of
friends that included Powell and Beaudoin at Bar Seven, but was
not with them at the time of the shooting at the Sorabol parking
lot. On cross-examination, Chang testified that Beaudoin came up
to him at Bar Seven and told him that he wanted to hit DeLeon.
Chang testified that shortly thereafter he heard a loud slap, and
when he turned, he saw DeLeon’s sunglasses “flying off.” Chang
also testified that on a separate occasion in 2007, he tried to
break up an altercation between Powell and another individual,
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which resulted in Powell striking Chang in the face.4
c. Akiona’s Testimony
Lane Akiona testified that he arrived with Joe Chang at
Bar Seven at around 2:00 a.m. Akiona joined Powell, Beaudoin,
and Gamboa at Seoul Karaoke after leaving Bar Seven. Akiona
testified that they were inside Seoul Karaoke for less than ten
minutes, and once they left and were in the parking lot, he heard
someone yelling. Akiona testified that he saw DeLeon pull out a
gun, and when he “felt the pop” of DeLeon’s gun discharging,
Akiona “crawled on the ground” and “tried to get out of the way.”
d. Gamboa’s Testimony
Gamboa testified that after being told that Seoul
Karaoke was closing, he, Powell, Beaudoin, and Akiona were all
walking together in the parking lot towards their vehicle to
leave. According to Gamboa, they heard somebody yelling, “‘[y]ou
guys wanna mess with me?’ or ‘[y]ou guys wanna hit me?’” DeLeon
then fired three shots into the ground, and seconds later Gamboa
saw Powell approaching DeLeon with “both hands up out to the
side, slightly above shoulder height.” Gamboa testified that
DeLeon shot Powell immediately after the first three shots were
fired when Powell had his hands up.
A surveillance video of the Sorabol parking lot at the
4
Immediately prior to Chang’s cross-examination, the attorneys
approached the bench and discussed having the defense attorney elicit this
testimony pursuant to the HRE Rule 404(b) notice it provided on March 24,
2015. The prosecuting attorney did not object to this testimony coming in.
The circuit court made no ruling at that time, however, regarding the issue of
first aggressor.
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time of the shooting was played for the jury at trial during
Gamboa’s direct examination.
On cross-examination, Gamboa testified that in an
interview with a detective on July 31, 2009, he did not mention
that DeLeon was yelling at him, Powell, and Beaudoin before they
approached DeLeon in the Sorabol parking lot.
e. Dr. Goodhue’s Testimony
Forensic pathologist Dr. William Goodhue testified that
he performed an autopsy on Powell, and that Powell sustained a
single fatal gunshot wound to his heart, causing his death. Dr.
Goodhue also testified that Powell had 0.171 grams per deciliter
of alcohol in his blood, and that what appeared to be gunshot
residue on Powell’s shirt was consistent with being shot from 6
to 8 inches away.
2. Essential Testimony from Defense’s Case-in-Chief
DeLeon testified that on the evening of July 30, 2009,
he went “club hopping” and at around 2:30 to 3:00 a.m., he was at
a bar called Bar Seven. At Bar Seven, he saw an acquaintance,
Chang, who introduced him to Powell. As DeLeon and Powell shook
hands, DeLeon heard Powell say something that included the word
“Mexican.” DeLeon testified that he leaned forward to understand
what Powell was saying, heard Powell say “fucking Mexican[,]” and
was grabbed from behind the neck by Powell and put in a
chokehold. As DeLeon was struggling to break away from Powell’s
grip, DeLeon was hit on the side of his head by Beaudoin, causing
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the sunglasses he was wearing to fall to the floor. DeLeon
testified that Chang then intervened, and told DeLeon to leave
“before something worse happens to [DeLeon] because they have all
their friends here.”
DeLeon testified that he left in his vehicle and was
heading home, but decided to go to another bar called Ocean’s to
see if his friends were there. Once at Ocean’s, he saw “[i]t was
already closing down[,]” because the parking lot was empty, and
decided to go to a restaurant called Sorabol “to get something to
eat.” DeLeon parked in the Sorabol parking lot, then exited and
locked his vehicle. As he started walking towards Sorabol, he
heard someone behind him say, “[t]here’s that fucking Mexican.”
DeLeon turned to see a group of four to five men walking towards
him, and recognized that they were the same men from the Bar
Seven incident earlier that night. DeLeon considered running to
Sorabol, but didn’t think he could make it and thus headed back
to his vehicle. When the group of men were five to ten feet away
from DeLeon, DeLeon “decided to pop [his] trunk with the fob on
[his] key chain” and “pulled the 9-millimeter out.”
DeLeon testified that he “just wanted to scare them”
and “to protect [him]self.” After giving a verbal warning to
stay back and firing a warning shot in the air, two men ran away
but the other three were still proceeding in DeLeon’s direction.
DeLeon then told them again to stay back and fired three shots
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into the ground, but the men still did not stop approaching.5
DeLeon had his gun pointed at Powell, who was closest to him and
about an “arm’s length” away. According to DeLeon, Powell then
said, with his hands up, “[w]hat, you think one gun is going to
stop us all?” DeLeon explained that he then shot Powell, and
that he only intended to hit him in the shoulder. DeLeon
testified that he shot Powell because he was scared and wanted to
protect himself, and also that he did not intend to kill Powell.
DeLeon admitted on cross-examination that Powell’s hands were
raised and he was unarmed when DeLeon shot him. DeLeon testified
that Powell was “at arm’s length” from DeLeon when he shot him,
and Powell did not try to take the gun away from DeLeon, although
Powell was close enough to do so.
3. DeLeon’s Request to Introduce Powell’s and Beaudoin’s
Prior Violent Acts
After the defense presented its case, the circuit court
conducted a hearing outside of the jury’s presence on DeLeon’s
“Amended Notice of Intent to Rely on Hawaii Rules of Evidence,
Rule 404(b) Evidence.” The defense sought to introduce evidence
of Powell’s and Beaudoin’s prior violent acts in order to support
the defense’s position that Powell and Beaudoin, and not DeLeon,
were the first aggressors.
After hearing arguments from the parties, the circuit
5
On cross-examination, DeLeon testified that everyone except Powell
ran away after the warning shots were fired.
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court denied DeLeon’s request.6 The circuit court acknowledged
that it had reviewed State v. Lui, 61 Haw. 328, 603 P.2d 151
(1979), State v. Basque, 66 Haw. 510, 666 P.2d 599 (1983), and
State v. Maddox, 116 Hawaii 445, 173 P.3d 592 (App. 2007). As
to Beaudoin, the circuit court explained that:
given the state of the evidence, with respect to the
404 evidence concerning prior bad acts to show the
violent character as to Mr. Beaudoin, his conduct,
which is in question, occurred at Bar 7. It’s remote
in time, remote in place to the incident that actually
involved Mr. Powell’s death.
As to Powell, the circuit court explained that:
[t]his is a -- on the basis of there being a first-
aggressor issue, the evidence in the parking lot and
this occurred an hour later, so it’s a different
location, there is a break in time, the evidence that
has been produced fails to support a factual dispute
as to who was the aggressor.
The evidence is that Mr. Powell was the individual
standing alone, palms-open gesture, no movement.
This, and the testimony of the defendant that Mr.
Powell made no movement other than to have his hand
open and he was walking, the record does not appear to
support that there is a factual dispute as to who was
the aggressor.
And the facts in Mr. DeLeon’s matter, as [the State]
indicated, are very similar to those that are cited in
State v. [Lui], 61 Hawaii 328.
(Emphasis added).
4. Jury Instructions
The circuit court instructed the jury on Murder in the
Second Degree and the lesser-included offenses of: Manslaughter;
6
As previously noted, the circuit court allowed evidence of
Powell’s 2007 assault on Chang during defense counsel’s cross-examination of
Chang.
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Assault in the First Degree; and Assault in the Second Degree
based on intentionally, knowingly, or recklessly causing
substantial bodily injury. The circuit court then instructed the
jury regarding the offense of Carrying or Use of a Firearm in the
Commission of a Separate Felony. The circuit court also
instructed the jury on self-defense. Part of the court’s self-
defense instruction provided that “[t]he use of deadly force is
not justifiable if the defendant, with the intent of causing
death or serious bodily injury, provoked the use of force against
himself in the same encounter.”
5. Closing Arguments
The State argued that this case was about DeLeon’s
revenge after being humiliated at Bar Seven. The State contended
that DeLeon went to Sorabol to wait for Powell and his friends,
threatened them by firing his gun, and intended to kill Powell
when he shot him in the heart at close range. The State argued
that DeLeon did not act in self-defense, asserting that
“[s]hooting someone in the heart, an unarmed man who is
approaching you with his arms up, that is not going to be
justified . . . .” The State argued that DeLeon could have
retreated to safety but chose not to, and emphasized that “[t]his
was one on one, against an unarmed man, with his hands up,
walking towards [DeLeon].”
Defense counsel focused on the credibility of Beaudoin,
Akiona, Gamboa, and Chang by noting their drunkenness that night
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and the inconsistencies between their testimonies and their
statements given to police. Defense counsel argued that the
inconsistencies reflected bias, motive, and interest. Defense
counsel then argued that the Sorabol surveillance video showed
that Powell was not alone, but was with others around him, and
that Powell was moving toward DeLeon. Counsel stated “there’s
only one guy moving forward with a purpose, accompanied by his
friends.”
Defense counsel also argued that DeLeon’s use of force
was justified in self-defense because he “reasonably believed
that the use of protective deadly force was immediately
necessary.” Counsel argued he was “in fear of getting serious
bodily injury[,]” and only shot Powell at the last moment after
repeated warning shots did not stop the group from continuing to
approach him. Counsel repeated the court’s jury instruction
that: “[t]he use of deadly force is not justifiable if the
defendant, with the intent of causing death or serious bodily
injury, provoked the use of force.” Defense counsel then argued
that DeLeon did not provoke Powell and his friends, and was
justified in using deadly force in self-defense.
6. Verdict, Judgment, and Sentence
The jury found DeLeon guilty of Manslaughter and of
Carrying or Use of a Firearm in the Commission of a Separate
Felony. The circuit court sentenced DeLeon to a twenty-year term
of imprisonment for each count, to run concurrently, with a
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mandatory minimum term of fifteen years for the latter count.
DeLeon timely filed a notice of appeal.
C. ICA Proceedings
In its November 13, 2017 Summary Disposition Order, the
ICA affirmed the judgment of the circuit court. The ICA
concluded, inter alia, that the circuit court did not abuse its
discretion in excluding evidence of Powell’s and Beaudoin’s prior
violent acts under HRE Rule 404.
III. Standard of Review
The trial court’s determination of whether there is a
factual dispute as to who was the first aggressor for purposes of
HRE Rules 404 and 405 is reviewed de novo. See Maddox, 116
Hawaii at 460, 173 P.3d at 607. Where such a factual dispute
exists, the extent to which evidence of the victim’s prior
violent acts may be admitted is reviewed under an abuse of
discretion standard. See Basque, 66 Haw. at 515, 666 P.2d at
603; Maddox, 116 Hawaii at 460, 173 P.3d at 607.
IV. Discussion
In his application for writ of certiorari, DeLeon
presents the following question:
Whether the ICA gravely erred in concluding that the
trial court did not abuse its discretion in excluding
Powell’s and Beaudoin’s criminal histories and prior
acts of violence when the record clearly established
there was a dispute as to who was the initial
aggressor and when the trial court instructed the jury
that DeLeon would be precluded from using deadly force
if he was the initial aggressor.
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A. Introducing Evidence of a Victim’s Aggressive or Violent
Character Under HRE Rules 404 and 405
In Lui, we explained that under the common law, “a
defendant who claims self-defense to a charge of homicide is
permitted to introduce evidence of the deceased’s violent or
aggressive character . . . to show that the decedent was the
aggressor.” Lui, 61 Haw. at 329, 603 P.2d at 154. However, we
held that evidence of the decedent’s character is not admissible
when there is no factual dispute as to who was the first
aggressor. See id. at 330-31, 604 P.2d at 154.
Lui was later codified into HRE Rule 404(a)(2). See
HRE Rule 404 cmt. (1994); Basque, 66 Haw. at 513, 666 P.2d at
602. HRE Rule 404 provides, in relevant part:
Character evidence not admissible to prove conduct;
exceptions; other crimes.
(a) Character evidence generally. Evidence of a
person’s character or a trait of a person’s character
is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, except:
. . . .
(2) Character of victim. Evidence of a
pertinent trait of character of the victim of
the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of a
character trait of peacefulness of the victim
offered by the prosecution in a homicide case to
rebut evidence that the victim was the first
aggressor[.]
. . . .
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, be admissible
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where such evidence is probative of another fact that
is of consequence to the determination of the action,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, modus
operandi, or absence of mistake or accident. In
criminal cases, the proponent of evidence to be
offered under this subsection shall provide reasonable
notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of
the date, location, and general nature of any such
evidence it intends to introduce at trial.
(Emphasis added).7
If character evidence is admissible under HRE Rule
404(a)(2), the second step is to determine the methods by which
the pertinent character trait of the victim may be proved,
pursuant to HRE Rule 405. See HRE Rule 405 cmt. (1994) (“Before
[Rule 405] may be invoked, the question of substantive
admissibility of character evidence must be decided according to
Rule 404.”). HRE Rule 405 provides, in relevant part:
Methods of proving character.
(a) Reputation or opinion. In all cases in which
evidence of character or a trait of character of a
person is admissible, proof may be made by testimony
as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowable
into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which
character or a trait of character of a person is an
essential element of a charge, claim, or defense,
proof may also be made of specific instances of the
person’s conduct.
7
The commentary to HRE Rule 404(a)(2) notes that this subsection is
mainly applicable to homicide and assault cases, and cites Lui as consistent
with HRE Rule 404(a)(2). See HRE Rule 404 cmt. (1994); Basque, 66 Haw. at
513, 666 P.2d at 602 (noting that the Lui rule regarding the use of a victim’s
prior violent acts to establish who was the first aggressor was later codified
as HRE Rule 404(a)(2)).
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(Emphasis added).
The Massachusetts Supreme Judicial Court summarized
federal and state courts’ interpretations of Rules 404 and 405 on
the issue:
Rules 404 and 405 of the Federal Rules of Evidence and
similar State rules permit the defendant to introduce
reputation and opinion evidence, but not specific acts
of violence, to prove the victim’s violent character.
Despite this dominant interpretation of the Federal
Rules of Evidence, some State courts have held that
the victim’s character is an “essential element” of a
defendant’s self-defense claim, allowing the use of
specific acts evidence under the State equivalent of
Fed. R. Evid. 405(b). See, e.g., State v. Dunson, 433
N.W.2d 676, 680–681 (Iowa 1988); State v. Baca, 114
N.M. 668, 671–673, 845 P.2d 762 (1992). Other States
with versions of the Federal Rules of Evidence have
crafted a compromise rule allowing evidence of the
victim’s specific acts only in the form of
convictions. Jurisdictions that have not adopted the
Federal Rules of Evidence are split on the issue.
Commonwealth v. Adjutant, 443 Mass. 649, 661 n. 15, 824 N.E.2d 1,
11 n. 15 (2005) (some citations omitted).
In Basque, we addressed the State’s contention that the
rule in Lui, later codified as HRE Rule 404(a)(2), “allows only
the use of character evidence –- to be proved by reputation or
opinion -- and not evidence of ‘other crimes, wrongs, or acts,’
which is covered by Rule 404(b).” 66 Haw. at 513-14, 666 P.2d at
602. We stated:
In Lui, however, we treated general character evidence
and specific prior acts (including those reflected in
the victim’s criminal record) the same for purposes of
corroborating a defendant’s self-defense claim as to
who was the aggressor. A growing number of other
courts are in accord. As Dean Wigmore has stated:
“[T]here is no substantial reason against evidencing
the character (of a deceased victim) by particular
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instances of violent or quarrelsome conduct. Such
instances may be very significant; their number can be
controlled by the trial court’s discretion; and the
prohibitory considerations applicable to an accused’s
character have here little or no force.” 1 Wigmore on
Evidence § 198 (3d ed. 1940) (emphasis in original).
Id. at 514, 666 P.2d at 602 (some citations omitted).
While this court did not explicitly hold that the
aggressive or violent character trait of a victim is an essential
element of a claim of self-defense, this court rejected the
argument that the only admissible evidence of a victim’s
character was through reputation and opinion evidence. See id.
(“we treated general character evidence and specific prior acts
(including those reflected in the victim’s criminal record) the
same for purposes of corroborating a defendant’s self-defense
claim as to who was the aggressor.”). Thus, we reiterated the
holding in Lui that, once a factual question was raised as to who
was the first aggressor, evidence of a victim’s character could
be presented through specific instances of conduct, such as the
victim’s prior violent acts. See id.
The methods for proving character are outlined in HRE
Rule 405, which only allows for the use of specific instances of
conduct to prove character when character is an essential element
of, inter alia, a defense to the crime. It follows then, that if
this court allows specific instances of a victim’s conduct when a
self-defense claim is raised and there is an issue as to who is
the first aggressor, the victim’s character is an essential
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element of a claim of self-defense.8
Thus, we now explicitly hold that, when there is a
factual dispute as to who was the first aggressor, a victim’s
pertinent character trait is an “essential element” to a claim of
self-defense, and therefore, evidence of specific instances of
conduct concerning that character trait, such as the victim’s
prior violent acts, may be admissible under HRE Rule 405(b).9
B. Whether There Was a Factual Dispute as to Who Was the First
Aggressor
DeLeon argues that the record shows that there was a
factual dispute as to whether DeLeon, Powell, or Beaudoin was the
first aggressor.10 Our prior case law provides guidance on what
8
Some state courts have similarly held that a pertinent character
trait of a victim is an “essential element,” under Rule 405, of a claim of
self-defense. See, eg., State v. Dunson, 433 N.W.2d 676, 680–81 (Iowa 1988);
Gottschalk v. State, 881 P.2d 1139, 1143 (Alaska Ct. App. 1994) (citing
Loesche v. State, 620 P.2d 646 (Alaska 1980); Byrd v. State, 626 P.2d 1057
(Alaska 1980); Keith v. State, 612 P.2d 977 (Alaska 1980).
9
The admission of evidence of specific instances of conduct would
still need to comply with HRE Rules 401 and 403. See State v. Behrendt, 124
Hawaii 90, 102, 237 P.3d 1156, 1168 (2010) (discussing HRE Rule 404(b) and
stating that “‘[p]rior bad act’ evidence . . . is admissible when it is 1)
relevant and 2) more probative than prejudicial.”).
10
As an initial matter, we hold that Beaudoin was a victim for
purposes of HRE Rule 404(a)(2). DeLeon sought to introduce evidence of
Beaudoin’s prior violent acts to support his position that Powell was the
first aggressor and not DeLeon. HRE Rule 404(a)(2) allows “evidence of a
pertinent trait of character of the victim” to be introduced as an exception
to the general rule against admitting character evidence.
When DeLeon was indicted, both Powell and Beaudoin were identified
as victims in the indictment. In the 2010 trial, a jury found DeLeon guilty
as charged on several charges that characterized either Powell or Beaudoin as
a victim. This court vacated the circuit court’s judgment of conviction and
sentence on Counts II and IV, and remanded the case to the circuit court for
trial on those counts. State v. DeLeon, 131 Hawaii 463, 319 P.3d 382 (2014).
Accordingly, DeLeon’s conviction for Count VII (Reckless Endangering in the
First Degree of Beaudoin and/or Akiona) was affirmed, and DeLeon’s convictions
(continued...)
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evidence raises a factual dispute as to who was the first
aggressor.
In Lui, we determined that the record did not support
finding a factual dispute as to who was the first aggressor. 61
Haw. at 330, 603 P.2d at 154. Lui was convicted of manslaughter
for shooting the decedent. Id. at 328, 603 P.2d at 153. The
evidence showed that hours before the shooting, Lui and the
decedent got into a fist fight, at the end of which the decedent
threatened to shoot Lui. Id. at 328-29, 603 P.2d at 153. Lui
then went home to get a handgun, returned to the scene of the
fight, and saw the decedent approaching him. Id. at 329, P.2d at
153. Lui walked toward the decedent and shot him from about 10
feet away because Lui thought the decedent was reaching for a
gun. Id. The decedent was unarmed. Id. The trial court did
not allow evidence of the decedent’s prior bad acts to show that
the decedent was the aggressor at the shooting. Id. On appeal,
this court held that the trial court “properly excluded the
proffered evidence to show by circumstantial proof that the
10
(...continued)
for Counts II (Murder in the Second Degree of Powell) and Count IV
(accompanying Carrying or Use of Firearm in the Commission of a Separate
Felony) were vacated and remanded. Thus, in the 2015 trial at issue in this
appeal, the only charges remaining concerned Powell.
Beaudoin was a victim in this case. DeLeon was convicted of
Reckless Endangerment in the First Degree of Beaudoin. But for the fact that
two trials were conducted because of errors in DeLeon’s first trial, charges
listing Beaudoin as a victim would have also been presented to the jury in the
2015 trial. Accordingly, Beaudoin should have been considered a victim at the
2015 trial for the purposes of HRE Rule 404(a)(2) admission of character
evidence of a victim. We need not consider whether other circumstances would
allow the introduction of such evidence with regard to individuals who were
not the “victim” of the charged offense.
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deceased was the aggressor in the fatal incident. The record
does not support a factual dispute as to who was the aggressor.”
Id. at 330, 603 P.2d at 154.
In Basque, this court distinguished Lui and determined
that there was a factual dispute as to who was the first
aggressor. 66 Haw. at 512-13, 666 P.2d at 601-02. The evidence
showed that: Basque drove to the home of his former girlfriend,
Delima, and called out to her while he was in his car with the
door open. Id. at 511, 666 P.2d at 600. Delima’s boyfriend,
Pagharion, pushed Delima aside, shook Basque’s car, and asked,
“[w]hy the hell you keep on bothering her?” Id. at 511, 666 P.2d
at 601. Basque testified that Pagharion was swearing and
threatening to kill him as he came over, and that they both
reached for the gun under Basque’s driver’s seat at the same
time, causing the gun to discharge twice during their struggle.
Id. Delima and her brother both testified that Basque reached
under the seat, shot Pagharion in the arm, and that Basque and
Pagharion then struggled for the gun, which went off a second
time, fatally wounding Pagharion in the chest. Id. The trial
court granted the State’s motion to preclude Basque from
introducing Pagharion’s criminal record11 after balancing the
11
Pagharion’s record included arrests for attempted murder and five
counts of armed robbery, and his guilty plea to two of the robbery counts.
Basque, 66 Haw. at 511-12, 666 P.2d at 601.
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interests of the parties pursuant to HRE Rule 40312 and holding
that jurors might place too much emphasis on the criminal record.
Id. at 512, 666 P.2d at 601.
This court distinguished Basque from Lui and determined
that:
[T]he evidence presented in the instant case is
unclear and conflicting as to who was the aggressor.
The testimony of appellant, witnesses to the shooting,
and even the State’s two experts, presents genuine
disputes as to who attacked whom first, and how close
and in what position the appellant and decedent were
when the two shots were fired. Moreover,
uncontroverted testimony was adduced that the deceased
had drunk about eight beers that afternoon, and in
approaching appellant, had pushed aside [his
girlfriend] and shaken [appellant’s] car. Given such
testimony, it is evident that a factual question
existed as to who was the aggressor in this case.
Id. at 513, 666 P.2d at 601-02.
This court concluded that the trial court “abused its
discretion when it flatly prohibited appellant from arguing to
the jury, or otherwise eliciting evidence of, the criminal
history of the deceased. We cannot say beyond a reasonable doubt
that such an abuse did not contribute to the jury’s verdict.”
Id. at 515, 666 P.2d at 603.
In State v. Maddox, 116 Hawaii 445, 460, 173 P.3d 592,
607 (App. 2007), the ICA held that the testimony of the defendant
12
HRE Rule 403 states:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
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can constitute evidence sufficient to support a finding that
there is a dispute as to who was the first aggressor. In that
case, the victim, Mota, was the new boyfriend of Maddox’s ex-
girlfriend, and Maddox had unexpectedly come to Mota’s home in
the late evening, which resulted in a confrontation between
Maddox and Mota. Id. at 448, 173 P.3d at 595. Mota testified
for the State that he asked Maddox to leave his home, to which
Maddox responded by making “threatening moves toward Mota” and
ultimately stabbing Mota in the chest. Id. at 460, 173 P.3d at
607. The circuit court did not allow Maddox to cross-examine
Mota about his past to show his character for violence. Id. at
449, 173 P.3d at 596.
On appeal, Maddox argued that “Mota’s testimony raised
the factual issue as to whether Mota had been the first
aggressor[.]” Id. at 460, 173 P.3d at 607. The ICA rejected
that argument, and stated that “Mota’s testimony did not raise a
factual issue regarding who was the first aggressor but instead
plainly showed that Maddox was the first aggressor.” Id. The
ICA noted that Maddox’s subsequent testimony that Mota attacked
him without provocation was “ample evidence” to support Mota
being the first aggressor, however Maddox did not seek to recall
Mota after Maddox testified. Id. The ICA therefore concluded
that the circuit court did not abuse its discretion in excluding
evidence of Mota’s prior acts of violence because the requests to
introduce that evidence “were made before evidence to support a
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finding that Mota was the first aggressor had been introduced.”
Id.
In the instant case, DeLeon testified that after he got
out of his vehicle upon arriving at the Sorabol parking lot, he
heard someone behind him say, “[t]here’s that fucking Mexican.”13
He turned to see Powell and three to four others14 approaching
him, and DeLeon recognized the men from the incident earlier in
13
To the extent that DeLeon argues that the incident at Bar Seven
establishes that Powell and Beaudoin were the first aggressors at the time of
the shooting at the Sorabol parking lot, that argument is without merit
because the events were sufficiently separated by time and distance.
In State v. Adam, the ICA considered whether the defendant’s
actions of first aggression extended to a later confrontation that gave rise
to the charges brought against him. 97 Hawaii 413, 38 P.3d 581 (App. 2001).
In that case, Wentworth was picking opihi along the Milolii coastline when a
rock struck his back. Id. at 415, 38 P.3d at 583. He looked up the cliff
that fronted the coastline and saw Adam with a rock in his hand. Id.
Wentworth climbed the cliff and approached Adam’s house. Id. After “calling
[Adam] out[,]” Wentworth proceeded to “[s]wear, yell, and fly rocks at . . .
[Adam’s] truck.” Id. When a rock hit Adam’s truck, Adam ran out of his house
with a nine millimeter pistol, pointed it in Wentworth’s direction, and fired.
Id. Adam moved to introduce evidence of Wentworth’s prior convictions in
order to show evidence that he was the first aggressor. Id. at 416, 38 P.3d
at 584. The ICA concluded that “there was no factual issue as to who,
Wentworth or Adam, was the first aggressor. Wentworth admitted he was the
aggressor and Adam responded by firing his gun.” Id. at 418, 38 P.3d at 586.
Accordingly, the ICA affirmed the trial court’s denial of Adam’s motion to
introduce evidence of Wentworth’s prior convictions. Id. at 422, 38 P.3d at
590.
The ICA rejected the argument that the first aggressor issue
extended from Adam’s initial rock-throwing from the cliff to the shooting
outside Adam’s house, concluding that Wentworth was the initial aggressor when
he threw rocks at Adam’s truck after he climbed up the cliff. Id. at 418, 38
P.3d at 586. The ICA did not, however, explain the basis on which it
concluded that there was no extension of the first aggressor issue.
Here, there was a break in time between the two events of roughly
one hour, in which DeLeon was going to go home, went to Ocean’s, and then
ultimately went to Sorabol to get something to eat. There was a more
significant break in time here than in Adam, where the chain of events that
unfolded after the initial rock-throwing were all part of one course of
circumstance. The Bar Seven incident was therefore attenuated from the
shooting at Sorabol, and the fact that Powell and Beaudoin were aggressors at
Bar Seven does not extend to the incident in the Sorabol parking lot.
14
It is unclear from DeLeon’s testimony whether Beaudoin was one of
these people. Beaudoin, Akiona, and Gamboa testified that Beaudoin was
present.
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the evening when he was assaulted by Powell. At this point,
DeLeon testified that Powell and the men with him were five to
ten feet away from DeLeon. DeLeon thought about running to
Sorabol, but he thought the group would catch him and assault
him. For that reason, DeLeon instead decided to get his gun from
the trunk of his vehicle. DeLeon told the group to stay back and
fired a warning shot in the air, at which point two members of
the group ran away. Powell and two others still continued to
proceed in DeLeon’s direction. DeLeon then gave another verbal
warning and shot three times into the ground. Powell and the two
others were still approaching him, and DeLeon pointed his gun at
Powell. Powell put his hands up and said, “[w]hat, you think one
gun is going to stop us all?” DeLeon admitted that when he shot
Powell, Powell had his hands open and raised, was unarmed, and
did not attempt to take the gun away from DeLeon. DeLeon
testified that Powell was “at arm’s length” from DeLeon when he
shot him.
Generally, self-defense using deadly force is not a
lawful action to stop a simple assault, and thus, there is no
dispute as to who was the first aggressor. See HRS § 703-304(2)
(use of deadly force justifiable if the actor believes that
deadly force is necessary to protect himself against death,
serious bodily injury, kidnapping, rape, or forcible sodomy); cf.
State v. Pearson, 288 N.C. 34, 40, 215 S.E.2d 598, 603 (N.C.
1975) (exception to general rule where “there is a great
disparity in strength between the defendant and the assailant, or
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where the defendant is attacked by more than one assailant.”)
Under the totality of the circumstances, the situation
in the instant case falls under the exception to this general
rule. The following testimony, when viewed together, was
sufficient to raise a factual dispute as to whether Powell or
Beaudoin could be the first aggressor: (1) DeLeon, by himself,
faced Powell and his group, which consisted of three to four
people, including Beaudoin;(2) someone from that group said,
“[t]here’s that fucking Mexican”; (3) Powell, and possibly two
others from the group, which may have included Beaudoin,
continued to approach after DeLeon fired warning shots into the
air and ground and told them several times to stay back; (4) as
Powell continued to approach, Powell stated, “[w]hat, you think
one gun is going to stop us all?” when he was within arm’s length
of DeLeon. While DeLeon used deadly force on an unarmed
attacker, there is a factual dispute as to whether DeLeon was
being attacked by multiple assailants, which is an exception to
the general rule that a claim of self-defense fails when deadly
force is used to stop a simple assault.
Thus, we conclude that the circuit court erred in
finding that there was no factual dispute as to who was the first
aggressor.15 Since there was a factual dispute as to who was the
15
DeLeon makes an additional argument, based on Basque, that the
circuit court’s jury instruction on provocation established that there was a
fact at issue as to who was the aggressor. In DeLeon’s trial, as part of the
circuit court’s self-defense instruction, the court stated, “[t]he use of
deadly force is not justifiable if the defendant, with the intent of causing
(continued...)
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first aggressor, and DeLeon raised the claim of self-defense, the
circuit court abused its discretion in categorically excluding
evidence of Powell’s and Beaudoin’s prior violent acts. Given
the conflicting evidence regarding the circumstances of the
shooting, and the direct relevance of the excluded evidence to
DeLeon’s self-defense claim, we conclude that the error was not
harmless, and that DeLeon’s convictions must accordingly be
vacated.16 See Basque, 66 Haw. at 515, 666 P.2d at 603.
V. Conclusion
For the foregoing reasons, we vacate the ICA’s
December 13, 2017 Judgment on Appeal and the circuit court’s
15
(...continued)
death or serious bodily injury, provoked the use of force against himself in
the same encounter.”
In Basque, the trial court gave a similar instruction. 66 Haw. at
513, 666 P.2d at 602. After reviewing the testimony presented at trial, this
court stated:
Given such testimony, it is evident that a factual
question existed as to who was the aggressor in this
case. The trial court implicitly acknowledged as much
when, as part of its “self-defense” jury instruction,
it stated: “In order for the defendant to have been
justified in the use of deadly force in self-defense,
he must not have provoked the assault on him or have
been the aggressor.”
Id. (citation omitted).
Similarly here, while not dispositive on the issue, the circuit
court’s jury instruction supports a finding that there was a fact at issue as
to who was the first aggressor.
16
As this court noted in Basque, “[o]n remand, the trial court shall
retain the discretion to determine to what extent, and in what manner,
evidence of the deceased’s criminal record may be allowed in and alluded to.”
66 Haw. at 515, 666 P.2d at 603 (citation omitted). “Some of the factors the
trial court may consider are the nature of the prior crimes, wrongs, or acts,
their proximity in time to the present incident, and the amount and type of
extrinsic evidence which will be needed to establish those acts.” Id. at 515
n.6, 666 P.2d at 603 n.6.
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August 5, 2015 Judgment, and remand the case for further
proceedings consistent with this opinion.
William H. Jameson, Jr., /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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