In re: DM

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JAN-2022
12:01 PM
Dkt. 80 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF DM
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-J NO. 0101376)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka, J., with
Nakasone, J., dissenting)
I. Introduction
Minor-Appellant/Cross-Appellee DM (Minor) appeals from
the November 15, 2019 "Order Re: Motion for Reconsideration of
Order Adjudicating Minor of Attempted Assault in the First Degree
and Restitution Filed October 29, 2019" and the July 24, 2020
"Findings of Fact and Conclusions of Law" (FOFs/COLs) entered by
the Family Court of the First Circuit (Family Court).1 After a
bench trial, the Family Court adjudicated Minor a law violator
under Hawaii Revised Statutes (HRS) § 571-11(1) (2018)2 for
1
The Honorable Brian A. Costa presided.
2
HRS § 571-11(1) provides:
§571-11 Jurisdiction; children. Except as otherwise
provided in this chapter, the court shall have exclusive
original jurisdiction in proceedings:
(1) Concerning any person who is alleged to have
committed an act prior to achieving eighteen
years of age that would constitute a violation
(continued...)
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committing Attempted Assault in the First Degree (Attempted
Assault 1) in violation of HRS §§ 705-500 (2014)3 and 707-710(1)
(2014).4
On appeal, Minor challenges several of the Family
Courts FOFs and COLs,5 and argues that the Family Court erred in
concluding that (1) he intentionally stabbed the complaining
witness (CW) with his knife; (2) his use of deadly force in self-
defense was not justifiable under the circumstances because it
exceeded the amount of force that was reasonable; (3) he could
have avoided the necessity of force by retreating to complete
safety; and (4) the State disproved that Minor acted in self-
defense beyond a reasonable doubt.
On cross-appeal, Plaintiff-Appellee/Cross-Appellant
State of Hawai#i (State) appeals from the (1) June 29, 2020
"Order Re: Contested Restitution Hearing"; (2) July 16, 2020
"Order Denying State's Motion to Reconsider June 29, 2020 Order
2
(...continued)
or attempted violation of any federal, state, or
local law or county ordinance. Regardless of
where the violation occurred, jurisdiction may
be taken by the court of the circuit where the
person resides, is living, or is found, or in
which the offense is alleged to have occurred[.]
3
HRS § 705-500 provides, in relevant part:
§705-500 Criminal attempt. (1) A person is guilty of
an attempt to commit a crime if the person:
. . .
(b) Intentionally engages in conduct which, under the
circumstances as the person believes them to be, constitutes
a substantial step in a course of conduct intended to
culminate in the person's commission of the crime.
4
HRS § 707-710 provides, in relevant part:
§707-710 Assault in the first degree. (1) A person
commits the offense of assault in the first degree if the
person intentionally or knowingly causes serious bodily
injury to another person.
5
Minor challenges FOFs 12, 13, 17, 26, 27, 31, 37, and 40-44 and COLs
3, 4, 6, 8, 9, and 11-14.
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Denying Restitution"; and (3) July 16, 2020 "Amended Order Re:
Contested Restitution", all entered by the Family Court.6 In its
cross-appeal, the State contends the Family Court erred in
concluding that the Crime Victim Compensation Commission (CVCC)
was not a "victim" under HRS § 571-48 (11) and (13) (2018)7,
placing the burden on the State to show that Minor or his parents
had the ability to pay restitution, and holding CW could not be
compensated directly.
For the reasons discussed below, we affirm.
II. Background
The pertinent background adduced from the three-day
bench trial is as follows.
Testimony of CW
CW testified that he lived in Ewa Beach and attended a
friend's birthday party at "Hau Bush" beach park (Hau Bush) in
Ewa Beach in the early morning of June 2, 2019; there, he saw
Minor, whom he had not met before. CW testified that he
approached Minor, but Minor did not want to talk so CW stepped
away until Minor yelled "Kalihi Mafia." CW responded, "F[uck]
Kalihi Mafia. Ewa Beach[,]" and called Minor to fight. Minor
asked CW if he was serious and then CW "just punched him" because
Minor yelled "Kalihi Mafia" which CW knew was a gang in Kalihi.
CW testified that he and Minor "[fought] for a couple
seconds swinging at each other, and then [CW] tackled him to . .
. the floor." Minor then "got up, went to the car, grabbed the
6
The Honorable John C. Bryant, Jr. presided.
7
HRS § 571-48 provides, in relevant part:
(11) The court may order any person adjudicated pursuant to
section 571-11(1) to make restitution of money or
services to any victim who suffers loss as a result of
the child's action, or to render community service;
. . .
(13) The court may order the parents of an adjudicated
child to make restitution of money or services to any
victim, person, or party who has incurred a loss or
damages as a result of the child's action.
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knife." CW stated that the cars were five to twenty feet from
where they fought and CW knew Minor had a knife because
"[e]verybody yelled he had a knife[.]" Minor yelled "who like
get stab?" as Minor approached CW. CW then threw punches at
Minor and Minor stabbed CW. CW did not immediately realize he
had been stabbed and continued swinging punches at Minor and
tackled Minor again. Minor became aware he had been stabbed
after he stood up "feeling weird" and noticed "it started to hurt
and then started bleeding." CW's lower left ribs was gushing
blood onto his shorts. He rushed to his friend's car and went to
the hospital, where he received surgery for his injuries.
On cross-examination, CW testified that he got into a
different altercation with another male at Nimitz Beach earlier
that night but he did not start it. CW also testified that he
drank two twelve-ounce cans of Four Loko, some Malibu rum and
smoked marijuana earlier that night. CW stated that it was not
his first night drinking alcohol and that it takes "10 beers" to
get drunk.
Testimony of Eyewitness Hunter
Nineteen-year-old Hunter Zeller-Cortes (Hunter)
testified that he is CW's friend, was at Hau Beach the night of
the incident, and met Minor a couple of days before that night.
Hunter testified that he heard what sounded like "a lot" of
people arguing, but only saw CW and Minor arguing. He did not
see the fight begin, but saw both Minor and CW using their fists
on each other. Hunter testified that during the fight, he tried
to break it up and that "a couple people [were] holding them back
and then [Hunter] was in the middle pushing them away." Hunter
testified he broke up the fight and then walked away from the
area with his friend who had been hit by someone other than CW or
Minor during the fight. Hunter was calming his friend down and
"less than [a] couple minutes" later, Hunter saw Minor leave in a
car with one other person. He then found CW in the back seat of
Hunter's car, and helped CW up, but CW punched him. Hunter
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looked at his shirt and saw blood so he helped CW into the back
of his friend's truck and they left for the hospital.
Testimony of Eyewitness KJ
Seventeen-year-old KJ testified that she was at Hau
Beach with a couple of friends, including Hunter, CW, and EO on
the night of the incident. She had not met Minor previously and
did not know how the first altercation started. CW and Minor
were yelling at each other, and she and Hunter were trying to
calm CW down. KJ saw CW run around the cars to face Minor and
saw Minor pull a knife from a car. CW then tackled Minor and was
stabbed. KJ testified that Minor's knife just went in like "when
someone hits but with a knife."
On cross-examination, KJ testified that while Minor and
CW were still separated, Minor took out his knife and said "you
like get shanked?" After Minor said "you like get shanked?" CW
ran toward Minor because "[CW] got mad at the fact that [Minor]
said that." It took CW between ten to thirty seconds to reach
Minor, CW tackled Minor and they ended up on the ground. KJ
testified that she saw the initial round of fighting and
explained, "[Minor and CW] were like both trying to fight. And I
guess when [CW] swung, he missed, and then that's when [Minor]
stuck, [sic] and then [CW] tackled [Minor]." During the first
fight, other individuals were getting "rowdy" but KJ did not see
if other people were hitting Minor.
Testimony of Eyewitness EO
Seventeen-year-old EO is CW's close friend and he did
not know Minor. EO testified that he was at Hau Beach on the
night of the incident and at one point, an argument broke out
between two "sides" of the beach park. He only saw CW and "some
other guy on the other side." CW was yelling "Ewa Beach," and
someone else yelled "Kalihi," but he was not sure how many people
were yelling. At one point there was an argument, then a "slight
fight" between CW and the other boy, with a "couple punches"
thrown. EO initially testified his friends broke up the fighting
by "telling us to stop" but then denied being personally involved
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and claimed they were only talking to CW. He saw CW fighting
with "one or two" people, but did not know who they were. After
the initial fight ended, "they went back to their places" and
then "came back arguing." After they started arguing, the other
boy pulled out a knife from his pocket, then CW broke out from
being held back and tackled Minor. They both fell, then CW got
up asking to go to the hospital. He believed the altercation
involving the knife was only between CW and the boy.
EO testified on cross-examination that he and CW are
"really close," and they were both drinking earlier that night at
Nimitz Beach. He did not see the initial arguing but saw that CW
threw the first punch and they both ended up on the ground.
Later, CW tackled the boy by "launch[ing] himself off the ground"
and "flying his . . . body towards him." They both fell, and
that is when CW got stabbed. When the boy pulled out the knife,
he said "you like get stabbed," then CW "broke out" to tackle the
boy despite multiple people trying to hold him back. Minor did
not move from the spot where he stood when he made his threat,
but when CW broke out, CW took long strides and quickly launched
himself in the air to tackle Minor. Most people there were from
Ewa Beach. It was pitch-black that night, and the only light was
from open car doors.
Testimony of Minor
Minor testified that the night of the incident, his
cousin picked him up in his car, and they went out "looking for
parties." He learned through social media about a party at Hau
Bush. Minor had a "couple beers," but his cousin did not drink
because he was the designated driver. There were about twenty
cars at Hau Beach when they arrived, and it was pitch black
outside except for the lights from open car doors. On arrival,
Minor went to talk to "some girls," and his cousin went to meet
his friends, but Minor did not know exactly where he was. CW and
a "couple . . . other guys" approached Minor and started
introducing themselves. CW was initially friendly. CW held a
twenty-two ounce can of Four Loko, smelled like alcohol, had
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glossy eyes, and kept talking to Minor. CW asked Minor to sip
his drink but Minor declined; CW's friendliness began to feel
"sketchy," so Minor asked CW to leave. Minor continued talking
to a girl, then CW "came out of nowhere" and disrespected the
girls who were standing by Minor, calling them "bitch and slut."
Minor told CW to "chill" and to get away, but CW was "all drunk"
and started getting "all nuts" after that. CW began "calling
[Minor] out" to fight, but Minor declined and tried to reason
with him, repeatedly saying he did not want any problems. CW was
not wearing a shirt and he had a cigarette in his hand. CW
continued calling him out and said "where you from?"; Minor
responded, "Kalihi," then CW said "oh, fuck Kalihi," then Minor
said "oh, fuck Ewa Beach," then CW rushed him and started to
throw punches, and Minor threw punches to defend himself. Hunter
and some boys broke up the fight by holding CW back as Minor
stood there watching, but CW was able to break away and rushed at
Minor again. "People" then tried to pull CW back and "there was
a whole lot of chaos." Minor and CW both ended up on the ground
because CW "rush[ed] at [him] so fast," and when Minor got up, he
got "whacked" from the side by someone other than CW. He could
not see in the darkness, but he knew someone other than CW hit
him because CW was still on the ground. He had no friends there
other than his cousin, and the rest of the people were from Ewa
Beach. He was punched again and saw that "choke people was
getting nuts." He looked around and saw a lot of people, so he
went to his cousin's car and grabbed his work knife. He used the
knife at work, and in emergencies it has a seat belt cutter and
can be used to break glass. The blade on the knife has to be
manually pulled out and is three or four inches long. He did not
have the keys to the car, but it was already open. He went to
the car because he was scared as there were a lot of people
there, and he was outnumbered and getting punched. When he
grabbed the knife, there were "more boys coming to rush" him, and
CW was with the group of boys coming. He then turned and said,
"what, you guys -- who like get stab?" to make his attackers
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"back away," and "make them scared," but he did not want to hurt
anybody. Minor stood in the same place the whole time while
making the threat. CW was about ten feet away at the time, and
when the "other boys" saw the knife, they backed away. CW then
said, "I no give a fuck if you have the knife," and rushed
towards Minor. CW ran and jumped at Minor, and Minor swung and
tried to "catch" him, which is when the knife "made contact"
somewhere on CW's body. CW "started throwing blows" while Minor
was on his back and CW was on top; Minor still held the knife and
was blocking the blows with both hands until CW finally rolled
over from his injury and retreated. Minor saw the blood on his
shirt, then stood up and looked for his cousin, finding him with
his friends on the "other side," about five cars away. He told
his cousin, "[L]et's get out of here," and when the cousin asked
why, he said "[F]rick, I accidentally stabbed somebody."
Minor testified on cross-examination that he travels
with his knife all the time because he uses it for work. His
purpose in getting the knife was to scare away CW and the "other
boys." When CW launched his attack, he came head first, Minor
was not thinking, and he "tried to wrap him" with the knife still
in his hand. They were on the ground for about ten seconds
before CW rolled over. CW was not armed, and nobody else
produced a weapon that night. CW is about Minor's size but is a
"much better" fighter. He did not know where his cousin was
during the fight, and though he had his phone, he did not have
time to call him.
Family Court adjudication
The Family Court made the following relevant FOFs in
which it found, inter alia, that Minor intentionally stabbed the
CW and was not justified in his use of deadly force:
11. [CW] further admitted that he started the fight with
Minor, and that he threw the first punch. He stated that
others were trying to break it up. The complaining witness
stated that he was trying to get back at the Minor, and that
at some point the altercation stopped. The Court found this
testimony credible.
12. [CW] stated that the Minor went to a vehicle, went
inside the vehicle, got a knife, and that the Minor stated
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"who like get stabbed." [CW] the[n] immediately approached
the Minor again. The Court found this testimony credible.
13. [CW] was stabbed during this second altercation with
the Minor, and he sustained a stab wound to the area of his
left abdomen by the Minor, with the knife that the Minor had
procured from the vehicle.
. . . .
16. [KJ] testified that she did not see the first
altercation. She stated that [CW] was upset, and that she
was trying to calm him down. She stated both sides were
yelling. She testified that saw the Minor with the knife,
and that the Minor said something to the effect of "who like
get stabbed" or "shanked." She stated that once the Minor
came out with the knife, she saw [CW] charge after the Minor
and tackle him. She saw the Minor strike [CW], which looked
to her like a hit, but with a knife. She stated she did not
see anyone else hit the Minor.
. . . .
18. The Court finds based upon the credible testimony that
the initial confrontation between the Minor and [CW] was
started by [CW] when he threw the first punch. [CW] was
intoxicated on the night of the incident, June 2, 2019.
. . . .
22. The first altercation was partially broken up when
Hunter Zeller-Cortez stepped in between and attempted-to
break up the fight, which then continued somewhat as a
second altercation that the Court views as a continued part
of the first altercation.
23. After the fight was broken up, it was at that point
that the Minor went over to a vehicle, the Nissan Altima
that his cousin had driven him to Hau Bush in. The Minor
retrieved a knife that he used for work. Upon retrieving the
knife, the Minor exited the vehicle, and yelled out "who
like get stabbed."
24. At that point, the Court finds that other people were
attempting to calm [CW] down, but they were unsuccessful.
25. The Court finds that [CW] charged at the Minor while
minor was holding the knife.
26. When [CW] ran up to Minor, the Minor did stab [CW] in
the left side of his abdomen.
27. The Minor testified that the stab was an accident, and
that he was trying to hug and/or catch [CW]. The Court does
not find that to be credible testimony. The Court finds that
the Minor did in fact stab, and did intend to stab the
complaining witness with the knife that was produced.
. . . .
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29. After the second altercation, when the Minor extricated
himself from the situation, the Minor went to the vehicle,
obtained a knife from the vehicle, came back out of the
vehicle with the knife, and stated "who like get stabbed."
At that point, [CW] charged at the Minor.
. . . .
31. The Court finds that the culmination of the act in the
stabbing did create a substantial risk of death to [CW]. The
Court further finds that the acts were done so
intentionally.
32. Self-defense was raised by the defense in this matter,
and once reasonably raised, the burden is on the prosecution
to prove beyond a reasonable doubt that the force used by
the Minor was not justifiable.
. . . .
34. In this case, the utilization of the weapon, the knife,
is deadly force.
35. In order for deadly force to be utilized, it must be
met and used only for specific purposes, and that force
utilized must be reasonable.
36. Minor claimed he was assaulted not only by the
complaining witness but that somebody else had struck him,
which then caused him to extricate himself from the
situation and go to the vehicle.
37. The Minor could have gone to the vehicle and instead of
getting the knife could have extricated himself from the
situation if he stayed in the vehicle or he could have left
the area but chose not to do so.
38. The Minor was entitled to utilize self-defense in the
first altercation.
39. When the second altercation occurred, the Minor was
also entitled to use self-defense, but only such force that
was reasonably necessary under the circumstances.
40. The Court finds that the Minor used deadly force when
he stabbed [CW]; and deadly force exceeded the amount of
force that was reasonable under the circumstances.
41. While the Minor may have subjectively believed that
such deadly force was necessary, the Court does not find
that the amount of force used was objectively reasonable
under the circumstances of this case, beginning and
culminating with getting the knife from the vehicle, coming
out of the vehicle instead of staying in the vehicle, making
a threatening statement and ultimately resulting in Minor
stabbing [CW].
42. The mere brandishing and/or threat to cause death or
serious bodily injury by the production of a weapon so long
as the actor's intent is limited to creating an apprehension
does not in and of itself constitute deadly force. However,
retrieving the weapon from the vehicle, coming out of the
vehicle with the weapon, making the threatening statement
and ultimately using the weapon does constitute deadly
force.
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The Family Court made the following relevant COLs:
9. "The use of force upon or towards another person is
justified when the actor believes that such force is
immediately necessary to protect himself against the use of
unlawful force by the other person on the present occasion."
HRS § 703-304(1) (2014). The reasonableness of the Minor's
belief that the use of such protective force was immediately
necessary shall be determined from the viewpoint of a
reasonable person in the Minor's position under the
circumstances of which the Minor was aware or as the Minor
reasonably believed them to be. The amount of force used by
Minor was not reasonable under the circumstances.
10. "Deadly force" means force which the actor uses with
the intent of causing or which the actor knows to create a
substantial risk of causing death or serious bodily harm."
HRS § 703-300 (2014). The act of Minor stabbing [CW] in the
abdomen constituted deadly force.
11. "The use of deadly force is justifiable ... if the
actor believes that deadly force is necessary to protect
himself against death, serious bodily injury, kidnapping,
rape, or forcible sodomy." HRS § 703-304(2). The Court does
not find the use of deadly force by Minor was justifiable,
and the use of said force was not objectively reasonable
under the circumstances in this case.
12. "The use of deadly force is not justifiable ... if the
actor, with the intent of causing death or serious bodily
injury, provoked the use of force against himself in the
same encounter; or [t]he actor knows that he can avoid the
necessity of using such force with complete safety by
retreating[.]" HRS 703-304(5). Minor left the area to obtain
a weapon, the knife, from a vehicle and returned and stated
"who like get stabbed." The confrontation was broken up, but
Minor chose to return with the weapon, ultimately stabbing
[CW]. Minor could have waited in the vehicle or left the
area with complete safety.
13. The prosecution proved beyond a reasonable doubt that
the force used by Minor was not justifiable.
III. Discussion
A. Minor's Appeal
1. The Family Court's FOFs Are Not Clearly Erroneous
For Omitting Details
Minor contends that FOFs 12, 13, 17, and 26, and COL 12
are clearly erroneous because "they fail to convey numerous
important details . . . which affected the applicability of
[Minor's] defense of self-defense[.]" Minor also contends that
all FOFs are erroneous for omitting facts and contextual details
which are "important to providing a complete picture of the
events[.]"
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"A trial court's FOF are reviewed under the 'clearly
erroneous' standard." Dan v. State, 76 Hawai#i 423, 428, 879
P.2d 528, 533 (1994). A finding of fact is clearly erroneous
when the record lacks substantial evidence to support the
finding. State v. Okumura, 78 Hawai#i 383, 392, 894 P.2d 80, 89
(1995) (citation omitted). "[A] conclusion of law that presents
mixed questions of fact and law is reviewed under the clearly
erroneous standard because the court's conclusions are dependent
upon the facts and circumstances of each individual case." State
v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325, 332 (2010)
(citation omitted).
Minor challenges the following underlined portions of
the FOFs and COLs:
[FOF] 12. [CW] stated that the Minor went to a
vehicle, went inside the vehicle, got a knife, and
that Minor stated "who like get stabbed." [CW] the[n]
immediately approached the Minor again. The Court
found this testimony credible.
[FOF] 13. [CW] was stabbed during this second
altercation with the Minor, and he sustained a stab
wound to the area of his left abdomen by the Minor,
with the knife that the Minor had procured from the
vehicle.
. . . .
[FOF] 17. [EO] saw the first altercation, during which [CW]
threw the first punch at Minor. He also saw the second
altercation in which [CW] tackled the Minor, and at that
point, [CW] was stabbed by Minor. He further stated that he
heard the Minor state previous "you like get stabbed."
. . . .
[FOF] 26. When [CW] ran up to Minor, the Minor did stab
[CW] in the left side of his abdomen.
. . . .
[COL] 12. "The use of deadly force is not justifiable . . .
if the actor, with the intent of causing death or serious
bodily injury, provoked the use of force against himself in
the same encounter; or [t]he actor knows that he can avoid
the necessity of using such force with complete safety by
retreating[.]" HRS 703-304(5). Minor left the area to
obtain a weapon, the knife, from a vehicle and returned and
stated "who like get stabbed." The confrontation was broken
up, but Minor chose to return with the weapon, ultimately
stabbing [CW]. Minor could have waited in the vehicle or
left the area with complete safety.
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Minor contends that the words "immediately approached"
in FOF 12 and the underlined language in FOFs 13, 17, and 26 "do
not convey the force, intensity, and quickness of [CW's] actions,
which led to his injury." Minor quotes portions of EO's
testimony in which he explained CW's tackle was not similar to an
American football tackle but was "like flying his - - his body
towards [Minor] . . . like jumping at [Minor]."
We have held that:
where an appellant alleges that the trial court failed to
make adequate findings of fact, the appellate court will
examine all the findings, as made, to determine whether they
are (1) supported by the evidence; and (2) sufficiently
comprehensive and pertinent to the issues in the case to
form a basis for the conclusions of law. If those findings
include sufficient subsidiary facts to disclose to the
reviewing court the steps by which the lower court reached
its ultimate conclusion on each factual issue, then the
findings are adequate.
State v. Ramos-Saunders, 135 Hawai#i 299, 304, 349 P.3d 406, 411
(App. 2015) (brackets omitted) (quoting Nani Koolau Co. v. K & M
Const., Inc., 5 Haw.App. 137, 140, 681 P.2d 580, 584 (1984)).
Moreover, "[t]he trial judge is required to only make brief,
definite, pertinent findings and conclusions upon the contested
matters; there is no necessity for over-elaboration of detail or
particularization of facts." Id. at 304-05, 349 P.3d at 411-12
(quoting Rezentes v. Rezentes, 88 Hawai#i 200, 203, 965 P.2d 133,
136 (App. 1998)).
In this case, the Family Court's findings which
described CW "charged" (FOFs 16, 25, and 29), "ran" (FOF 26), and
"tackled" (FOFs 16 and 17) Minor while Minor held the knife
sufficiently indicated the force of CW's actions which led to the
stabbing. Thus FOFs 12, 13, 17, and 26 are not clearly
erroneous.
Minor contends the underlined wording in FOFs 13 and 26
implies Minor stabbed CW while they stood facing each other.
However, the Family Court found in FOF 17 that CW was stabbed
when he tackled Minor. The omission of this detail in FOFs 13
and 26 do not make them clearly erroneous.
Minor argues it was clearly erroneous for the Family
court to omit the following facts from its FOFs:
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1. [CW] had been drinking earlier that night at
Nimitz Beach.
2. [CW] had gotten into a fight with another male at
Nimitz Beach.
3. [CW] was walking around shirtless at the Hau Bush
party.
4. After [Minor] came out of the car with the knife
and stated, "Who like get stabbed?" the other boys
approaching [Minor] with [CW] backed off.
5. After running at/jumping at/tackling [Minor] (who
was holding the knife) to the ground, [CW] continued
to punch [Minor] a couple more times before his injury
stopped him.
6. The vast majority of people at the Hau Bush party
were from #Ewa Beach, and [Minor] was the only
individual from Kalihi.
7. [Minor]'s only ally was his cousin, who was not in
the immediate area of the first and second
altercations between [CW] and [Minor], and was
apparently unaware of the fight.
(Citations to the record omitted).8
Minor does not indicate that he requested that the
Family Court make his asserted findings. See Hawai#i Family
Court Rules (HFCR) Rule 52(b). Moreover, Minor argues that these
additional findings "provided critical contextual details (i.e.,
flavor) to the events[.]" However, over-elaboration of detail or
particularization of facts is not necessary. See Ramos-Saunders,
135 Hawai#i at 304-05, 349 P.3d at 411-12. Therefore, the
omission of these additional details from the Family Court's FOFs
was not clearly erroneous.
2. The Family Court Did Not Err in Concluding Minor's
Use of Deadly Force Was Not Justified
Minor argues that the Family Court erred in concluding
he stabbed CW intentionally rather than accidentally and that
Minor's use of deadly force was justified because he could not
retreat with complete safety. We disagree.
8
Minor also argues that none of the FOFs reflect EO's testimony that
multiple people were trying to hold CW back but he broke free and ran at
Minor. However, the Family Court found in FOFs 23 and 24 that when Minor
exited the vehicle and yelled out "who like get stabbed[,]" other people were
attempting to calm CW down but were unsuccessful. Therefore, this argument is
without merit.
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Minor argues that COL 12 implies Minor intentionally or
knowingly stabbed CW which is contradicted by the testimony of
Minor and EO that Minor stayed where he was while CW tackled
Minor which supports that Minor injured CW either accidentally or
in self-defense. Minor similarly argues that portions of FOFs 27
and 31, and COLs 4, 6, and 8 which state that Minor intentionally
stabbed CW are clearly erroneous because CW was the aggressor and
the stabbing was accidental. Minor supports his argument with
his own testimony, inter alia, that he "didn't want to hurt
nobody[,]" and did not intend to stab CW.
Given the testimony of the various witnesses in this
case, there is somewhat inconsistent evidence as to the events in
question. However, the Family Court made credibility
determinations to which this court must defer. "It is
well-settled that an appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of the
evidence; this is the province of the trier of fact." In re Doe,
95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001) (brackets omitted).
In FOF 27, the Family Court found:
27. The Minor testified that the stab was an accident, and
that he was trying to hug and/or catch [CW]. The Court does
not find that to be credible testimony. The Court finds
that the Minor did in fact stab, and did intend to stab the
complaining witness with the knife that was produced.9
Minor's contention that he did not intend to stab CW is based on
Minor's own testimony which the Family Court found not credible.
Moreover, based on the record -- including the evidence that
after being hit by CW, Minor retrieved the knife from his
cousin's car, exited the vehicle, and yelled out "who like get
stabbed" -- there is substantial evidence to support the Family
Court's finding that Minor intended to stab CW when CW then
charged at Minor while Minor was holding the knife.
Minor claims self-defense. It is unchallenged that
Minor used deadly force in this case, given his use of a knife.
9
In FOF 31, Conclusions of Law (COL) 4, and COL 8, the Family Court
also made findings that Minor intentionally stabbed CW or acted intentionally
in his conduct.
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See FOF 34. Thus, Minor claims he was justified in using deadly
force. HRS § 703-304 (2014) provides, in pertinent part:
(2) The use of deadly force is justifiable under this
section if the actor believes that deadly force is necessary
to protect himself against death, serious bodily injury,
kidnapping, rape, or forcible sodomy.
. . . .
(5) The use of deadly force is not justifiable under this
section if:
. . .
(b) The actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by
surrendering possession of a thing to a person asserting a
claim of right thereto or by complying with a demand that he
abstain from any action which he has no duty to take[.]
(Emphases added).
Minor contends the Family Court erred in relying on HRS
§ 703-304(5)(b) because the State failed to prove the statutory
requirement that Minor subjectively knew he could avoid the
necessity of using deadly force with complete safety by
retreating. Although the Family Court did not expressly state
that Minor had such subjective knowledge, it is implicit in the
Family Court's FOF 37 and COL 12, which state:
[FOF] 37. The Minor could have gone to the vehicle and
instead of getting the knife could have extricated himself
from the situation if he stayed in the vehicle or he could
have left the area but chose not to do so.
. . .
[COL] 12. "The use of deadly force is not justifiable . . .
if . . .[t]he actor knows that he can avoid the necessity of
using such force with complete safety by retreating[.]" HRS
703-304(5). Minor left the area to obtain a weapon, the
knife, from a vehicle and returned and stated "who like get
stabbed." The confrontation was broken up, but Minor chose
to return with the weapon, ultimately stabbing [CW]. Minor
could have waited in the vehicle or left the area with
complete safety.
(Emphasis added). Moreover, the Family Court's other findings
and the record support the finding that Minor knew he could avoid
the necessity of using deadly force with complete safety by
retreating. In FOF 11, which is unchallenged,10 the Family Court
10
Unchallenged findings are binding on an appellate court. See Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 458, 40 P.3d 73, 81
(continued...)
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found credible the CW's testimony that he started the fight with
Minor, others were trying to break it up, and "at some point the
altercation stopped." (Emphasis added). FOF 23, also
unchallenged, states in pertinent part that:
After the fight was broken up, it was at that point that the
Minor went over to a vehicle, the Nissan Altima that his
cousin had driven him to Hau Bush in. The Minor retrieved a
knife that he used for work. Upon retrieving the knife, the
Minor exited the vehicle, and yelled out "who like get
stabbed."
(Emphasis added).
Given these findings, when Minor went to his cousin's
vehicle to retrieve the knife, the fight had been broken up.
Although Minor testified he did not have the keys to his cousin's
vehicle, the doors were open, Minor had his phone with him and
his cousin was "somewhere around" the area but Minor did not
attempt to call his cousin. There is no indication that Minor
was chased to his cousin's vehicle and nothing prevented Minor
from remaining in the vehicle and calling his cousin so they
could leave the area.11 Therefore, the record supports the
Family Court's ruling that Minor's use of deadly force was not
justified under HRS § 703-304(5)(b).
The record also supports the Family Court's
determination that Minor's use of deadly force was not reasonable
under the circumstances. See HRS § 703-304(2); COLs 9, 10, 11.
The commentary on HRS § 703-304 provides in relevant part as
follows:
Subsections (2) and (5) strictly limit the use of deadly
force. Under the circumstances specified in subsection (2),
the actor may use deadly force if he believes it is
necessary to protect himself against death, serious bodily
harm, kidnapping, rape, or forcible sodomy. This formulation
10
(...continued)
(2002) ("Findings of fact ... that are not challenged on appeal are binding
on the appellate court.").
11
Minor argues that under the circumstances, he would not have been
safe in the vehicle because he would have been a "sitting duck at the mercy of
[CW] and his friends." Thus, Minor appears to argue that when he went to his
cousin's vehicle, the fight was not over and CW and/or CW's friends would
continue the fight at the vehicle. This argument is not supported by any
testimony and Minor does not challenge the Family Court's finding that when
Minor went to his cousin's vehicle, the fight was broken up. Therefore, this
argument is without merit.
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has two implications: (a) the actor must believe that deadly
force is the only viable means of preventing the specified
harm, and (b) the actor must believe that one of the
specified harms is threatened on the present occasion.
(Emphases added).
Given the record, there is sufficient evidence to
support the Family Court's ruling on HRS § 703-304(2). The
Hawai#i Supreme Court has expressed that:
We have long held that evidence adduced in the trial court
must be considered in the strongest light for the
prosecution when the appellate court passes on the legal
sufficiency of such evidence to support a conviction; the
same standard applies whether the case was before a judge or
a jury. The test on appeal is not whether guilt is
established beyond a reasonable doubt, but whether there was
substantial evidence to support the conclusion of the trier
of fact. Indeed, even if it could be said in a bench trial
that the conviction is against the weight of the evidence,
as long as there is substantial evidence to support the
requisite findings for conviction, the trial court will be
affirmed.
State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007).
The Hawai#i Supreme Court explained that "[t]he test
for assessing a defendant's self-protection justification
pursuant to HRS § 703-304 (2014) involves two prongs because HRS
§ 703-300 (2014) defines 'believes' as 'reasonably believes'[.]"
State v. Matuu, 144 Hawai#i 510, 520, 445 P.3d 91, 101 (2019)
(footnote omitted).
The first prong is subjective; it requires a determination
of whether the defendant had the requisite belief that
deadly force was necessary to avert death, serious bodily
injury, kidnapping, rape, or forcible sodomy.
If the State does not prove beyond a reasonable doubt that
the defendant did not have the requisite belief that deadly
force was necessary, the factfinder must then proceed to the
second prong of the test. This prong is objective; it
requires a determination of whether a reasonably prudent
person in the same situation as the defendant would have
believed that deadly force was necessary for
self-protection.
Id. at 520-21, 445 P.3d at 101-02 (ellipsis omitted).
In Matuu, the supreme court explained that a person of
reasonable caution could conclude that upon "breaking free" from
a fight when a third person intervened, it was not reasonable for
the defendant to then go to the kitchen, obtain a knife, and
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return to stab the decedent, who was unarmed. Id. at 521, 445
P.3d at 102 (brackets omitted).
Here, the Family Court found:
38. The Minor was entitled to utilize self-defense in the
first altercation.
39. When the second altercation occurred, the Minor was
also entitled to use self-defense, but only such force that
was reasonably necessary under the circumstances.
40. The Court finds that the Minor used deadly force when
he stabbed [CW]; and deadly force exceeded the amount of
force that was reasonable under the circumstances.
41. While the Minor may have subjectively believed that
such deadly force was necessary, the Court does not find
that the amount of force used was objectively reasonable
under the circumstances of this case, beginning and
culminating with getting the knife from the vehicle, coming
out of the vehicle instead of staying in the vehicle, making
a threatening statement and ultimately resulting in Minor
stabbing [CW].
42. The mere brandishing and/or threat to cause death or
serious bodily injury by the production of a weapon so long
as the actor's intent is limited to creating an apprehension
does not in and of itself constitute deadly force. However,
retrieving the weapon from the vehicle, coming out of the
vehicle with the weapon, making the threatening statement
and ultimately using the weapon does constitute deadly
force.
(Emphases added).
Minor contends that he did not approach CW or anyone
else with the knife, that Minor was being tackled to the ground
by CW at the moment of the stabbing, and that Minor did not
repeatedly stab CW or otherwise intend to injure CW, such that
these factors support the conclusion that his use of deadly force
was reasonable under the circumstances to protect himself from
serious bodily injury at the hands of CW and his friends. We
disagree.
Even if Minor had the subjective belief that his use of
deadly force was necessary, there is substantial evidence in the
record to support the Family Court's determinations that a
reasonably prudent person in the same situation would not have
believed that the force exercised by Minor was immediately
necessary for self-protection.
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As stated above, in unchallenged FOF 23, the Family
Court found that Minor went to his cousin's vehicle after the
first altercation was broken up, retrieved the knife, and upon
retrieving the knife, Minor exited the vehicle and yelled out
"who like get stabbed." We agree with the Family Court's ruling
that Minor's use of deadly force in these circumstances was not
objectively reasonable. That is, a reasonably prudent person
would not conclude, after the fight was broken up, that it was
reasonable to go to the vehicle, retrieve a knife, yell out "who
like get stabbed," and then stab CW when CW charged him. There
is no evidence that CW had any weapons. Although Minor
understandably would be upset by CW having initiated a fight with
him, Minor acted in an objectively unreasonable manner by
escalating the situation, after the fight was broken up.
Therefore, based on this record, we affirm the Family Court's
ruling that Minor's use of deadly force was not justified under
HRS § 703-304(2).
B. State's Cross-Appeal
On cross-appeal, the State contends the Family Court
erred in concluding that the CVCC was not a "victim" under HRS
§ 571-48 (11) and (13), placing the burden on the State to show
that Minor or his parents had the ability to pay restitution, and
holding CW could not be compensated directly.
1. Family Court's Interpretation of "Victim" in HRS
§ 571-48(11) and (13)
HRS § 571-48(11) provides that the Family Court "may
order any [juvenile offender] to make restitution of money or
services to any victim who suffers loss as a result of the
child's action, or to render community service[.]" (Emphasis
added). In turn, HRS § 571-48(13) provides: "The court may order
the parents of an adjudicated child to make restitution of money
or services to any victim, person, or party who has incurred a
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loss or damages as a result of the child's action."12 (Emphasis
added).
Here, CW was the person who suffered loss as a result
of Minor's act of stabbing. The State contends, however, that
the term "victim" as used in HRS § 571-48(11) and (13) should be
interpreted broadly to include the CVCC because the CVCC paid
CW's medical expenses, and the adult restitution statute defines
a victim, inter alia, as "[a] governmental entity that has
reimbursed the victim for losses arising as a result of the crime
or paid for medical care provided to the victim as a result of
the crime[.]" HRS § 706-646(1)(c) (2014).
Where there is no ambiguity in the language of a statute,
and the literal application of the language would not
produce an absurd or unjust result, clearly inconsistent
with the purposes and policies of the statute, there is no
room for judicial construction and interpretation, and the
statute must be given effect according to its plain and
obvious meaning.
State v. Demello, 136 Hawai#i 193, 195, 361 P.3d 420, 422 (2015)
(brackets omitted) (quoting State v. Palama, 62 Haw. 159, 161,
612 P.2d 1168, 1170 (1980)).
The State fails to show how the term "victim," as used
in HRS § 571-48(11) and (13), is inherently ambiguous or will
produce an absurd or unjust result. The adult restitution
statute, HRS § 706-646(1), starts with the phrase "[a]s used in
this section" before setting out the expanded definition of
"victim" to include business entities, trusts, surviving
relatives, and governmental agencies. Thus, by its own terms,
the definition of "victim" in HRS § 706-646(1) is limited to that
section. Further, although HRS § 706-646(1) contains an
expansive definition of "victim," that does not create an
ambiguity in the use of the term "victim" in HRS § 571-48(11) or
(13). We do not interpret the plain meaning of "victim," as used
in HRS § 571-48(11) and (13), to include the CVCC.
12
The State does not assert under HRS § 571-48(13) that the CVCC is a
"person" or a "party" under that provision.
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2. Ability to Pay Restitution
Given our determination above on the definition of
"victim" under HRS § 571-48(11) and (13), we need not reach the
State's point of error regarding the ability to pay issue.
3. Compensating CVCC Via Payment to CW
Finally, the State argues that the Family Court's
holding that it is "inappropriate" to order Minor to pay
restitution directly to CW and for CVCC to collect the
restitution payments from CW is "flatly contradicted" by In re
CM, which held:
the Family Court did not err in concluding that
family courts, like criminal courts, need not sort out
insurance indemnities, subrogation rights, and/or other
potential civil law implications before ordering a minor law
violator to repay his or her victim under the family court
restitution statute, HRS § 571-48(11).
141 Hawai#i 348, 355-56, 409 P.3d 752, 759-60 (App. 2017)
(emphasis added). The State further argues that the CVCC is
entitled to reimbursement because, under In re CM, the CVCC acted
like an insurance company in assuming the responsibility to pay
CW's medical bills.
First, CW is not a party to this case, and the State
fails to explain how the Family Court has jurisdiction over CW to
order him to reimburse the CVCC if the court orders Minor to pay
restitution. Second, at the July 16, 2020 hearing, the State
argued that the CVCC is "not a debt collector[,] [t]hey're not an
insurer . . . and so there's no indemnity issues that apply in
this particular case." Thus, the State's argument on appeal that
the CVCC is like an insurer entitled to reimbursement has been
waived. Moreover, even assuming arguendo, the CVCC is like an
insurer, the State fails to explain how the applicable statutes
or case law create an entitlement for an insurer to collect
restitution payments from the victim.
Given the record in this case, we conclude the Family
court did not err.
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IV. Conclusion
Based on the above, we affirm the following entered by
the Family Court of the First Circuit:
(1) November 15, 2019 "Order Re: Motion for
Reconsideration of Order Adjudicating Minor of Attempted Assault
in the First Degree and Restitution Filed October 29, 2019";
(2) the July 24, 2020 "Findings of Fact and
Conclusions of Law";
(3) June 29, 2020 "Order Re: Contested Restitution
Hearing";
(4) July 16, 2020 "Order Denying State's Motion to
Reconsider June 29, 2020 Order Denying Restitution"; and
(5) July 16, 2020 "Amended Order Re: Contested
Restitution."
DATED: Honolulu, Hawai#i, January 28, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Brian R. Vincent,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
for Plaintiff-Appellee/ Associate Judge
Cross-Appellant
Phyllis J. Hironaka,
Deputy Public Defender,
for Minor-Appellant/
Cross-Appellee
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DISSENTING OPINION by Nakasone, J.
I dissent because I would hold that the Family Court
erroneously applied and rejected Minor's justification defense,
and that Minor's adjudication for Attempted Assault in the First
Degree should be reversed. The erroneous application is
summarized as follows. First, it is the act of the stab itself
that constitutes the "deadly force" in this case, and including
Minor's acts preceding the stab (of getting the knife from the
vehicle, coming out of the vehicle instead of staying in the
vehicle, making a threatening statement "who like get stabbed")
as part of "deadly force" was erroneous. Second, the use of
deadly force and the duty to retreat in a justification defense
(self-defense) must be analyzed at the point the force is used,
not before. At the point the stab occurred, Minor was subjected
to CW's head-first tackle and takedown of Minor, and the FOFs and
COLs do not reflect that these circumstances contemporaneous with
the stab were considered in the deadly force analysis, because
the pertinent FOFs and COLs erroneously focus on Minor's acts
preceding the stab. Third, evaluating the reasonableness of
Minor's belief that deadly force was necessary in self-defense
requires both a subjective and objective analysis, yet the FOFs
and COLs do not reflect that the subjective prong was
sufficiently or correctly applied -- where the factfinder must
consider the circumstances as Minor subjectively believed them to
be at the time Minor used deadly force to defend himself.
Fourth, the duty to retreat must also be analyzed subjectively,
from Minor's perspective; and under this standard, there was no
evidence to support the application of the duty to retreat in
this case. Fifth, an assault by multiple attackers is a special
circumstance that must be considered when deadly force is used;
this was not done in this case. For these reasons, which I more
fully explain below, I respectfully dissent.
The pertinent FOFs and COLs in my analysis are as
follows:
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FINDINGS OF FACT
. . . .
23. After the fight was broken up, it was at that
point that the Minor went over to a vehicle, the Nissan
Altima that his cousin had driven him to Hau Bush in. The
Minor retrieved a knife that he used for work. Upon
retrieving the knife, the Minor exited the vehicle, and
yelled out "who like get stabbed."
. . . .
29. After the second altercation, when the Minor
extricated himself from the situation, the Minor went to the
vehicle, obtained a knife from the vehicle, came back out of
the vehicle with the knife, and stated "who like get
stabbed." At that point, [CW] charged at the Minor.
. . . .
34. In this case, the utilization of the
weapon, the knife, is deadly force.
. . . .
36. Minor claimed he was assaulted not only by the
complaining witness but that somebody else had struck him,
which then caused him to extricate himself from the
situation and go to the vehicle.
37. The Minor could have gone to the vehicle and
instead of getting the knife could have extricated himself
from the situation if he stayed in the vehicle or he could
have left the area but chose not to do so.
38. The Minor was entitled to utilize self-defense in
the first altercation.
39. When the second altercation occurred, the Minor
was also entitled to use self-defense, but only such force
that was reasonably necessary under the circumstances.
40. The Court finds that the Minor used deadly force
when he stabbed [CW]; and deadly force exceeded the amount
of force that was reasonable under the circumstances.
41. While the Minor may have subjectively believed
that such deadly force was necessary, the Court does not
find that the amount of force used was objectively
reasonable under the circumstances of this case, beginning
and culminating with getting the knife from the vehicle,
coming out of the vehicle instead of staying in the vehicle,
making a threatening statement and ultimately resulting in
Minor stabbing [CW].
42. The mere brandishing and/or threat to cause death
or serious bodily injury by the production of a weapon so
long as the actor's intent is limited to creating an
apprehension does not in and of itself constitute deadly
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force. However, retrieving the weapon from the vehicle,
coming out of the vehicle with the weapon, making the
threatening statement and ultimately using the weapon does
constitute deadly force.
. . . .
CONCLUSIONS OF LAW
. . . .
10. "Deadly force" means force which the actor uses
with the intent of causing or which the actor knows to
create a substantial risk of causing death or serious bodily
harm." HRS § 703-300 (2014). The act of Minor stabbing
[CW] in the abdomen constituted deadly force.
11. "The use of deadly force is justifiable ... if
the actor believes that deadly force is necessary to protect
himself against death, serious bodily injury, kidnapping,
rape, or forcible sodomy." HRS § 703-304(2). The Court
does not find the use of deadly force by Minor was
justifiable, and the use of said force was not objectively
reasonable under the circumstances in this case.
12. "The use of deadly force is not justifiable ...
if the actor, with the intent of causing death or serious
bodily injury, provoked the use of force against himself in
the same encounter; or [t]he actor knows that he can avoid
the necessity of using such force with complete safety by
retreating[.]" HRS [§] 703-304(5). Minor left the area to
obtain a weapon, the knife, from a vehicle and returned and
stated "who like get stabbed." The confrontation was broken
up, but Minor chose to return with the weapon, ultimately
stabbing [CW]. Minor could have waited in the vehicle or
left the area with complete safety.
1. Only the act of the stab constitutes
"deadly force."
The Family Court found that the "utilization of the
weapon, the knife, is deadly force," that "minor used deadly
force when he stabbed [CW]," and that "[t]he act of Minor
stabbing [CW] in the abdomen constituted deadly force." FOFs 34,
40, COL 10. Thus, the Family Court found and concluded that the
act of the single stab to CW's abdomen constituted "deadly
force." See id.
In FOFs 41 and 42, the Family Court's inclusion of
Minor's acts preceding the stab (getting the knife from the
vehicle, exiting the vehicle with the knife), as part of the
"force" and "deadly force" Minor used, was clearly erroneous.
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See State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435
(2019) (a conclusion of law that presents mixed questions of fact
and law is reviewed under the clearly erroneous standard because
the conclusion is dependent upon the facts and circumstances of
the particular case). "Deadly force" means "force which the
actor uses with the intent of causing or which the actor knows to
create a substantial risk of causing death or serious bodily
harm." HRS § 703-300 (2014). "Force" means any "bodily impact .
. . or the threat thereof." Id. The Family Court clearly erred
in FOF 41 when it included the sequence and totality of Minor's
prior acts of "getting the knife from the vehicle" and "coming
out of the vehicle instead of staying in the vehicle" -- as part
of the "force used" by Minor. FOF 41. FOF 42 contains a similar
error, where the Family Court found that the sequence and
totality of Minor's acts of "retrieving the weapon from the
vehicle, coming out of the vehicle with the weapon . . . does
constitute deadly force." FOF 42. None of these preceding acts
in FOFs 41 and 42 constitute "deadly force" or "force," as they
are defined in HRS § 703-300, and including them within the
finding of "force" and "deadly force" was clearly erroneous.
See Rodrigues, 145 Hawai#i at 494, 454 P.3d at 435. Including
Minor's preceding acts in FOFs 41 and 42 as part of "force" and
"deadly force," also contradicts the Family Court's finding that
only the act of the stab constituted deadly force.
In both FOFs 41 and 42, the Family Court included
Minor's act of "making the threatening statement" within its
finding of "force" and "deadly force." The Family Court also
noted in FOF 42, pursuant to the "deadly force" definition in HRS
§ 703-300, that: "The mere brandishing and/or threat to cause
death or serious bodily injury by the production of a weapon so
long as the actor's intent is limited to creating an apprehension
does not in and of itself constitute deadly force." FOF 42. The
Family Court explained that because the threatening statement was
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not an isolated act, but was accompanied by Minor's additional
acts of "retrieving the weapon from the vehicle, coming out of
the vehicle with the weapon," and "ultimately using the weapon,"
the Family Court rejected finding that the threat was "limited to
creating an apprehension" under HRS § 703-300. FOF 42.
Respectfully, I disagree with this mixed finding and
conclusion regarding the threat. In my view, substantial
evidence showed that Minor grabbed the knife out of fear because
he was outnumbered and getting punched, and that he made the
threat at CW and the group of boys coming to attack him to make
them "back away" and "make them scared," but said he did not want
to hurt anybody. Minor stood in the same place the whole time
while making the threat. When the other boys saw the knife, they
backed away, except for CW, who charged at and tackled Minor.
Under HRS § 703-300, Minor's "intent [was] limited to creating an
apprehension that [Minor] will use deadly force if necessary" and
thus, the threatening statement "who like get stabbed" was not
part of the deadly force in this case. The Family Court clearly
erred in including the threat as part of the deadly force at
issue. See Rodrigues, 145 Hawai#i at 494, 454 P.3d at 435.
2. Deadly force and the duty to retreat must be
analyzed at the point the deadly force is used,
and not before.
Under HRS §§ 703-300, 703-304(1) and (2) (2014),
Minor's use of deadly force against CW is justifiable if Minor
reasonably believes that deadly force is "immediately necessary"
to "protect himself against death [or] serious bodily injury" by
CW "on the present occasion." The Minor must believe that
"immediate use of force is required," "that deadly force is the
only viable means of preventing the specified harm," and that
"one of the specified harms is threatened on the present
occasion." Commentary on § 703-304. In a real conflict,
circumstances are constantly changing, moment by moment. An
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actor's belief that deadly force is immediately necessary to
protect himself or herself from death or serious bodily injury,
may be reasonable throughout the duration of a conflict, for only
certain periods of a conflict, for only an isolated moment during
a conflict, or not at all, depending on the circumstances.
Therefore, assessing the reasonableness of Minor's belief as to
the necessity of Minor's use of deadly force, from the point he
retrieved the knife from the vehicle, exited the vehicle, and
made the threatening statement "who like get stabbed," rather
than at the moment the stab occurred, was incorrect. See FOFs
41, 42, COL 12. The "present occasion" which immediately
necessitated Minor's use of deadly force was not when Minor
retrieved the knife from the car, exited the car with the knife
and made the threatening statement –- but was rather when Minor
stabbed CW as CW tackled him. HRS § 703-304(1). The self-
defense analysis must focus at this point, when deadly force was
used -- not before.
The duty to retreat under HRS § 703-304(5) must also be
analyzed at the point the deadly force is used, not before; and
the Family Court's FOFs and COLs on the duty to retreat also
erred in this regard. See Matter of Y.K., 663 N.E.2d 313, 315
(N.Y. 1996) (holding that the duty to retreat does "not arise
until the point at which deadly physical force was used or
imminent.").13 In COL 12, the Family Court cited the duty to
13
In Matter of Y.K., New York's highest court applied N.Y. Penal Law
§ 35.15 (2004), which provides that an "actor may not use deadly physical
force if he or she knows that with complete personal safety, to oneself and
others he or she may avoid the necessity of so doing by retreating[.]" 663
N.E.2d at 315. There, a thirteen-year-old girl (Girl) was walking home from
school with two friends, when a large group of boys and girls followed her,
shouted threats and took turns hitting her on the head. Id. at 314. The
Girl's companions fled to a nearby subway station, but the Girl chose not to
join them, fearing that she might be thrown onto the tracks. Id. As she
continued walking, she picked up a knife on the sidewalk and held it inside
her jacket. Id. Shortly thereafter, the group pushed her down, held her, and
began to punch and kick her, at which point she stabbed the main attacker in
the head and back. Id. The trial court found that the Girl was not entitled
to use deadly force as she failed to exercise her Duty to Retreat by not
escaping to the subway with her friends. Id. The appellate court reversed,
holding that the Duty to Retreat does "not arise until the point at which
(continued...)
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retreat law under HRS § 703-304(5), then applied the duty as
follows: "Minor left the area to obtain a weapon, the knife,
from a vehicle and returned and stated 'who like get stabbed.'
The confrontation was broken up, but Minor chose to return with
the weapon, ultimately stabbing [CW] . . . ." This application
was incorrect because the duty to retreat does not apply from the
point the knife was retrieved from the car or brandished, but
applies at the point the knife was used. Here, the deadly force
was employed as Minor was tackled by CW, and the duty to retreat
must also be evaluated at that moment, and not before. While
what occurred before deadly force was employed is relevant, the
duty-to-retreat determination must be based on the circumstances
at the point deadly force was used. See Matter of Y.K., 663
N.E.2d at 315.
3. The subjective prong of Minor's reasonable
belief of the necessity of deadly force was
insufficiently and incorrectly applied.
While the test for assessing a defendant's self-
protection defense involves two prongs (subjective and
objective), the FOFs and COLs reflect only an application of the
objective prong, and, in my view, do not reflect a sufficient or
correct application of the subjective prong to this case.
The two-pronged subjective-objective test from State v.
Matuu, 144 Hawai#i 510, 520, 445 P.3d 91, 101 (2019) applied by
the Majority is correct,14 but the Matuu recitation of the
13
(...continued)
deadly physical force was used or imminent." Id. at 315. The New York Court
of Appeals explained: "At that point, when the kicking and punching started,
the [Girl] was being held on the ground, surrounded by the 10 to 15 other
members of the group and apparently without anyone in the area to help her.
Manifestly, she was unable to retreat safely under those circumstances and her
use of deadly physical force to defend herself was justified." Id. (emphasis
added).
14
The Majority analogizes Matuu in reaching its conclusion that the
Family Court concluded deadly force was not justified in this case. In Matuu,
the supreme court explained that because Matuu testified that he was able to
"break free" from a fight when his cousin (Cousin) intervened, it was not
reasonable for Matuu to then "go to the kitchen, obtain a knife, and return to
stab [the decedent], who was unarmed." 144 Hawai#i at 521, 445 P.3d at 102.
(continued...)
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subjective-objective test does not contain additional explanatory
language regarding the subjective prong that was present in the
original case from which this test is derived, State v. Lubong,
77 Hawai#i 429, 433, 886 P.2d 766, 770 (App. 1994). The omitted
language explains how a factfinder must apply the subjective
prong. The bolded language below, from Lubong, has not been
overruled, but has been omitted from subsequent precedent that
has quoted and relied on the Lubong subjective-objective
analysis:15
In evaluating the reasonableness of a defendant's
belief that deadly force was necessary for self-protection,
the evidence must be assessed from the standpoint of a
reasonable person in the defendant's position under the
circumstances as the defendant subjectively believed them
to be at the time he or she tried to defend himself or
herself. State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80,
85 (1990). The test for assessing a defendant's self-
protection defense thus involves two prongs.
14
(...continued)
Here, however, the evidence including Minor's testimony, did not just consist
of Minor going to the car after the fight was broken up, obtaining a knife
like Matuu, to then return to stab an unarmed CW. The stab in this case
occurred when CW charged at Minor from ten feet away and tackled Minor
headfirst, taking both of them to the ground, where CW then "started throwing
blows" at Minor when Minor was on his back.
The record in Matuu also involved factual discrepancies that are
not present here, regarding the degree of deadly force used by Matuu, and
whether Matuu was defending himself or another, or not, at the moment of the
stabbing. Matuu claimed he stabbed the decedent once, yet the evidence showed
that the decedent sustained four stab wounds and two incised wounds. Id. at
514, 445 P.3d at 95. Matuu asserted that he was defending himself and Cousin
at the time he stabbed the decedent; yet Cousin gave contrary testimony that
Cousin tried to stop Matuu from approaching the decedent with the knife, and
Matuu cut Cousin's hand in the process. Id. Here, by contrast, the degree of
deadly force and whether the deadly force was used in self-defense, were not
disputed. The deadly force consisted of a single stab. All of the witnesses,
Hunter, KJ, and EO, testified that Minor was defending himself from CW's
tackle at the moment of the stab, and the Family Court also found this fact.
See FOF 39 (finding that Minor was entitled to use self-defense in second
altercation).
15
The following Hawai#i Supreme Court cases cite the ICA's Lubong
language explaining that application of the subjective prong requires the
factfinder to place itself in the shoes of the defendant: State v. Metcalfe,
129 Hawai#i 206, 232-33, 297 P.3d 1062, 1088-89 (2013); State v. DeLeon, 131
Hawai#i 463, 496 n.8, 319 P.3d 382, 415 n.8 (2014) (Acoba, J., concurring and
dissenting, joined by Pollack, J.). However, other supreme court cases, like
Matuu, do not contain this subjective prong language from the Lubong
subjective-objective test. See State v. Williams, 147 Hawai#i 606, 615 n.10,
465 P.3d 1053, 1062 n.10 (2020); Matuu, 144 Hawai#i at 520-21, 445 P.3d at
101-02; In re Doe, 107 Hawai#i 12, 18 n.7, 108 P.3d 966, 972 n.7 (2005); State
v. Culkin, 97 Hawai#i 206, 215, 35 P.3d 233, 242 (2001).
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The first prong is subjective; it requires a
determination of whether the defendant had the requisite
belief that deadly force was necessary to avert death,
serious bodily injury, kidnapping, rape, or forcible sodomy.
The factfinder is required to place itself in the shoes of
the defendant, determine the point of view which the
defendant had at the time of the incident, and "view the
conduct of the [victim] with all its pertinent sidelights as
the [defendant] was warranted in viewing it." State v. Janes,
121 Wash.2d 220, 238, 850 P.2d 495, 504 (1993) (quoting State
v. Tribett, 74 Wash. 125, 130, 132 P. 875 (1913)). Evaluating
the evidence from a subjective point of view ensures that the
factfinder "fully understands the totality of the defendant's
actions from the defendant's own perspective." Id. at 239, 850
P.2d at 505.
If the State does not prove beyond a reasonable doubt
that the defendant did not have the requisite belief that
deadly force was necessary, the factfinder must then proceed
to the second prong of the test. People v. Goetz, 68 N.Y.2d
96, 114, 506 N.Y.S.2d 18, 29, 497 N.E.2d 41, 52 (1986).
This prong is objective; it requires a determination of
whether a reasonably prudent person in the same situation as
the defendant would have believed that deadly force was
necessary for self-protection. . . .
77 Hawai#i at 433, 886 P.2d at 770 (bold emphases added) (some
italic font in original). In State v. Augustin, 101 Hawai#i 127,
128, 63 P.3d 1097, 1098 (2002), the Hawai#i Supreme Court
provided a similar detailed explanation of how to apply the
subjective prong as follows:
. . . Moreover, a defendant may only be charged with
"knowledge" of those "circumstances" of which he or she is
actually "aware." See HRS § 702-206(2)(b) (1993) ("A person
acts knowingly with respect to attendant circumstances when
he is aware that such circumstances exist."). That is why,
[u]nder Hawai#i law, the standard for judging the
reasonableness of a defendant's belief for the
need to use deadly force is determined from the
point of view of a reasonable person in the
[d]efendant's position under the circumstances as
he believed them to be. The jury, therefore, must
consider the circumstances as the [d]efendant
subjectively believed them to be at the time he
tried to defend himself.
State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990)
(emphasis in original) (citation omitted). It is therefore
error to judge the reasonableness of a defendant's viewpoint
based on circumstances "shown in the evidence" but of which
the defendant is not "aware." Id. at 477-78, 796 P.2d at
85. The fact remains, however, that the defendant's belief
regarding the immediate necessity of the use of protective
force must be reasonable. See HRS § 703-300.
(Emphases added) (some italic font in original).
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Here, the Family Court recited the subjective prong,
but did not apply the subjective portion of the analysis. See
FOF 41. Both the Family Court and the Majority focus on the
Court's finding that the "fight was broken up" at the point Minor
retrieved the knife. FOF 23, COL 12. The Majority thus
concludes that Minor "acted in an objectively unreasonable manner
by escalating the situation, after the fight was broken up."
While the fact that the "fight was broken up" may have been
"shown in the evidence" and objectively determined as fact by the
Family Court, there was no evidence from Minor's "own
perspective" that Minor was actually aware that the "fight was
broken up" and he was no longer in danger. Augustin, 101 Hawai#i
at 128, 63 P.3d at 1098; Lubong, 77 Hawai#i at 433, 886 P.2d at
770. On the contrary, Minor testified that he had been hit twice
from the side, from an unknown source, in addition to being
struck by CW.16 Minor described how he did not have any friends
16
The transcript reflects the following testimony by Minor:
Q. Okay. What happened when you were on the
ground?
A. I don't know, was too black. I got up and then
somebody was whack –- like I got whacked from –- on my side.
Q. When you say you were whacked from the side, was
that by [CW]?
A. No, 'cause he on –- he was on the ground, that's
why. I got up and I got –- I got side-blinded (sic) from
somebody else.
Q. So other than your cousin that was there, did
you have any friends that were there?
A. No. It was just Ewa Beach, the whole Ewa Beach.
Q. Okay. Do you know who punched you from the
side?
A. No.
Q. Okay. And what happened when you were punched
from the side?
A. I got punch again. And I was looking. I was
tripping out, like, oh, shit. Choke people was getting
nuts.
(continued...)
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there and "[i]t was just Ewa Beach," that there were "a lot of
people." He ran up to the car "[t]o grab the knife" because he
"was getting whack[ed]," he was "outnumbered," and he "was
scared." After he grabbed the knife, Minor described CW and a
"group of boys coming to rush [Minor]." Minor explained that he
made the "who like get stab" threat to "make them back away, to
make them scared," and because "there was . . . so much boys" at
that time. Both the Family Court and the Majority did not
consider the "totality of [Minor's] actions from [Minor's] own
perspective" under Lubong, 77 Hawai#i at 433, 886 P.2d at 770,
and instead, rely on a wholly objective determination that the
"fight was broken up" to conclude that: "The confrontation was
broken up, but Minor chose to return with the weapon, ultimately
stabbing [CW]." COL 12. The subjective prong of the
reasonableness of Minor's belief of the necessity of deadly
force, under the circumstances as Minor believed them to be, was
insufficiently and incorrectly applied. See Augustin, 101
Hawai#i at 128, 63 P.3d at 1098; Lubong, 77 Hawai#i at 433, 886
P.2d at 770.
4. The duty to retreat must be analyzed
subjectively, and there was no evidence
to support the application of the duty
here.
Under HRS § 703-304(5)(b), the use of deadly force is
not justifiable if the actor "knows that he can avoid the
necessity of using such force with complete safety by
retreating[.]" (Emphases added). An actor may only be charged
with "'knowledge' of those 'circumstances' of which he or she is
actually 'aware.'" Augustin, 101 Hawai#i at 128, 63 P.3d at 1098
(citing HRS § 702-206(2)(b) (1993) ("A person acts knowingly with
respect to attendant circumstances when he is aware that such
circumstances exist.")). With regard to Minor's duty to retreat
16
(...continued)
(Emphases added). "Choke" means a lot; a large amount in quantity, in
"pidgin" English. e-Hawaii - Everything Hawaii, http://e-
hawaii.com/pidgin/choke/ (last visited Jan. 25, 2022).
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at the point he used deadly force, there are no findings or
conclusions that show the Family Court conducted a subjective
analysis of "the totality of the [Minor's] actions from [Minor's]
own perspective." Lubong, 77 Hawai#i at 433, 886 P.2d at 770.
In State v. Mark, the Hawai#i Supreme Court examined
whether there was evidence under HRS § 703-304(5)(b), that
"Petitioner knew he could have retreated with complete safety,"
where Petitioner Mark was charged with second-degree attempted
murder against John Piko (Piko) and Denny Paikai (Paikai) for
shooting toward Piko and shooting Paikai in his leg. 123 Hawai#i
205, 210, 225-26, 231 P.3d 478, 483, 498-99 (2010). The Court
conducted the subjective prong of the analysis for Mark's use of
deadly force by considering Mark's own testimony to conclude that
the duty to retreat did not apply, as follows:
In regard to Paikai, it does not appear that any witness
testified directly as to whether Petitioner could have
retreated, and thus avoid the necessity of using deadly
force with complete safety. Petitioner stated that after
Piko had run off, he turned to look for Paikai, and saw him
kneeling down at the front of Petitioner's car. Petitioner
stated that he "[f]elt like ... [Paikai] might have a weapon
or something[,]" and he "was real scared[.]" Petitioner
then reached over the car and shot Paikai in the leg in
order to "stop him."
Nothing in this testimony indicated that Petitioner knew
that he could avoid the necessity of using deadly force by
retreating. According to Petitioner, he saw Paikai
"kneeling down, and ... coming around [Petitioner's] car
towards [Petitioner]." Petitioner thought Paikai might have
a weapon, and stated that he shot Paikai to "stop him." The
fact that Petitioner felt that he had to "stop" Paikai
indicates that Petitioner did not believe that he could have
retreated with complete safety. Petitioner did not testify
as to any knowledge he may have had in regard to avoiding
the necessity of using force. Thus, there was no evidence
adduced at trial that, as stated in clause (b), Petitioner
knew he could have retreated with complete safety, thereby
"avoid[ing] the necessity of using such force[.]" HRS §
703-304(5)(b). . . .
Id. at 225-26, 231 P.3d at 498-99 (emphases added) (brackets in
original).
Here, there was similarly no evidence adduced at trial
that showed Minor "knew he could have retreated with complete
safety, thereby avoiding the necessity of using such force." Id.12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
at 226, 231 P.3d at 499 (brackets and quotation marks omitted).
Respectfully, the Family Court's FOF 37 and COL 12, stating that
Minor could have "extricated himself from the situation if he
stayed in the vehicle or he could have left the area but chose
not to do so" (FOF 37), and that "Minor could have waited in the
vehicle or left the area with complete safety" (COL 12) -- were
not supported by any evidence, and in my view, were contradicted
by the evidence.
Minor did not testify whether locking himself in the
car, or leaving the area was a feasible, safe option. No other
witness gave such testimony. Minor testified he did not have the
keys to his cousin's vehicle, nor did he know where his cousin
was at the time of the fight.17 There was no evidence that Minor
17
The transcript reflects the following testimony by Minor:
Q. And what did you do after [CW] rolled over and
you saw that there was blood on you?
A. I panicked. I got up and I was -- I was looking
for my cousin so like we can get out of there.
Q. Okay. How did you feel at the time?
A. I was scared.
Q. Okay. Scared of what?
A. Of his boys going come catch me.
Q. Okay. So did you -- when he rolled to the
side, did you attack him at all after that?
A. No, I just stood up, and I was running, looking
for my cousin.
Q. Did you find your cousin?
A. Yeah.
Q. Where was he?
A. Talking -- he was like in this group of friends
on the other side.
Q. When you say the other side, how far away was
that?
A. Like five cars away.
Q. Okay. And what did you tell him?
(continued...)
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had a drivers' license or knew how to drive. Minor said he
didn't know where his cousin was during the fight and he "didn't
have time to bring out [his] phone" during the fight to call his
cousin for help.18 It is error "to judge the reasonableness of a
defendant's viewpoint based on circumstances shown in the
evidence but of which the defendant is not aware." Augustin, 101
Hawai#i at 128, 63 P.3d at 1098 (quotation marks and citation
omitted). There was no evidence that reflected that Minor
subjectively "knew he could have retreated with complete safety,
thereby avoiding the necessity of using such force." Mark, 123
17
(...continued)
A. I told him, oh, shit, let's get out of here.
Then he said how come? I said, frick, I accidentally
stabbed somebody.
(Emphases added).
18
The transcript reflects the following testimony by Minor:
Q. All right. And -- and then somebody else
punched you in the head, is that what you said?
A. Yes.
Q. And then you decided to go back to the car
because you were scared?
A. Yes.
Q. Did you have a phone that night?
A. Yes.
Q. How were you communicating with your -- your
[Cousin], that you were there with, how were you
communicating with him before you guys got together? Were
you calling each other or texting each other?
A. Yeah, I called him.
Q. Called him. Okay. All right. And when all of
this like fighting was going on, was [Cousin] around still
or no?
A. He was somewhere around.
Q. He was somewhere around. All right. And did
you ever try to call [Cousin]?
A. No. I didn't have time to bring out my phone.
(Emphases added).
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Hawai#i at 226, 231 P.3d at 499 (emphasis added) (quotation marks
and brackets omitted) (quoting HRS § 703-304(5)(b)).
Accordingly, the Family Court clearly erred in concluding in FOF
37 and COL 12, that Minor was precluded from self-defense because
he used deadly force where he had a duty to retreat. See
Rodrigues, 145 Hawai#i at 494, 454 P.3d at 435.
5. An "assault by multiple attackers" is a special
circumstance that must be considered when
evaluating deadly force.
The general rule is that "self-defense using deadly
force is not a lawful action to stop a simple assault;" however,
an assault by multiple attackers is an "exception to [the]
general rule." State v. DeLeon, 143 Hawai#i 208, 218, 426 P.3d
432, 442 (2018).19 Accordingly, as the evidence reflects that
Minor subjectively believed there were multiple attackers because
19
In DeLeon, defendant Phillip DeLeon was charged, among other
things, with second-degree murder of Shawn Powell, and first-degree reckless
endangering of Jermaine Beaudoin, during a late-night confrontation outside of
a bar between DeLeon and a group of males that included Powell and Beaudoin,
which resulted in DeLeon fatally shooting Powell. 143 Hawai#i at 209, 426
P.3d at 433. The issue on appeal involved the exclusion of prior violent acts
of Powell and Beaudoin where there was a factual dispute about who was the
first aggressor, DeLeon or Powell. Id. at 218-19, 426 P.3d at 442-43. The
Hawai#i Supreme Court explained its adoption of the "multiple attacker"
exception to the "general rule" that "self-defense using deadly force is not a
lawful action to stop a simple assault," as follows:
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.
Id. at 218, 426 P.3d at 442 (emphasis added) (brackets in original).
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he was struck by others besides CW, even though CW was unarmed, a
factfinder could conclude that it would be objectively reasonable
for someone in Minor's position to conclude the use of deadly
force in self-defense was necessary. Here, Minor testified that
after he grabbed the knife from the car, there were "more boys
coming to rush" him, and CW was with this group. CW testified
that there were 30 people there who knew CW because the
gathering was an "Ewa Beach thing." The eyewitnesses who were
all CW's friends described the scene as a "chaotic," "rowdy"
party where everyone was drinking, with other people "getting
wacked [sic] at the same time" during the fight between Minor and
CW; the crowd consisted mostly of Ewa Beach people, but Minor
came only with his cousin, from Kalihi. The Family Court also
found that Minor was assaulted by someone besides CW (FOF 36),
and Minor testified that he was hit twice by an unknown source.
Minor was outnumbered, had already been attacked, and perceived
more males about to rush him, even as CW was being physically
restrained by his friends. Thus, the record reflects evidence of
Minor's subjective belief that there were multiple potential
attackers coming toward him at the time deadly force was used.
The Family Court erred in not considering the "assault by
multiple attackers" circumstance in evaluating the use of deadly
force in this case. DeLeon, 143 Hawai#i at 218, 426 P.3d at 442.
In conclusion, for all of the foregoing reasons,
viewing the evidence in the strongest light for the prosecution,
see State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322,
330-31 (2007), there was no substantial evidence to support the
conclusion of the Family Court that the justification defense did
not apply, and thus, I would reverse the adjudication in this
case.
/s/ Karen T. Nakasone
Associate Judge
16