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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-JUN-2019
08:43 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
DEAN VICTOR MATUU, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 15-1-0128)
JUNE 28, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
On April 29, 2016, a jury convicted Petitioner/Defendant-
Appellant Dean Victor Matuu (“Matuu”), who had been indicted on
charges of Murder in the Second Degree in violation of Hawaiʻi
Revised Statutes (“HRS”) §§ 701.5 and 706-656 (2014), of the
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lesser included offense of Assault in the First Degree, HRS §
707-710 (2014), for stabbing his cousin Frank Kapesi (“Frank”)
on January 25, 2015 at a home Matuu and Frank shared with other
family members.
This appeal arises from Matuu’s challenge that his
conviction was not supported by substantial evidence and that
the circuit court’s jury instructions were prejudicially
erroneous or misleading. The ICA affirmed the Circuit Court of
the First Circuit’s (“circuit court[’s]”) Judgment of Conviction
and Sentence,1 concluding in relevant part that there was
substantial evidence to support the jury’s verdict and that the
jury instructions, when viewed as a whole, were not
prejudicially insufficient, erroneous, inconsistent, or
misleading. See State v. Matuu, No. CAAP-16-571 (App. Sep. 29,
2017) (SDO).
For the following reasons, the ICA correctly concluded that
Matuu’s conviction on the lesser included offense of Assault in
the First Degree was supported by substantial evidence and that
the circuit court’s jury instructions, as a whole, were not
prejudicially erroneous or misleading. However, the basis upon
which the ICA had concluded “the [circuit] court sufficiently
instructed the jury regarding unanimity” and that therefore
“[t]he additional unanimity instruction requested by Matuu was
1
The Honorable Glenn J. Kim presided.
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unnecessary,” Matuu, SDO at 10–11, is erroneous. The general
unanimity instruction as to the elements, cited to by the ICA,
did not include the requirement that the prosecution negative
justification defenses as an element of the offense.
Nevertheless, the circuit court’s justification instructions and
the general “unanimous verdict” instruction did require for a
conviction jury unanimity that the prosecution meet its burden
of proving beyond a reasonable doubt that it negatived Matuu’s
justification defenses. The justification instruction made
clear that the prosecution had the burden of disproving the
self-defense and defense-of-other defenses beyond a reasonable
doubt, and the general unanimous verdict instruction made clear
that the verdict had to be unanimous, which would include the
prosecution’s burden to negative the defenses beyond a
reasonable doubt.
Accordingly, although the ICA erred in concluding that the
elements instruction addressed the unanimity required to
disprove the justification defenses, the instructions as a whole
were not insufficient, erroneous, inconsistent, or misleading.
We therefore affirm the ICA’s Judgment on Appeal that affirms
the circuit court’s Judgment of Conviction and Sentence. The
requirement of unanimity beyond a reasonable doubt as to the
negativing defenses element would have been much clearer to the
jury if the justification defense instructions had specifically
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included the unanimity requirement. We therefore provide
guidance that circuit courts should do so in the future.
II. Background
A. Factual Background
From 2013 when Matuu was seventeen years old, he shared a
home with his cousins, Frank2 and Kapesi Kapesi, and two uncles.
Matuu and Frank shared a living space, which was separated by a
chest of drawers, television set, other furniture, and a tarp.
Frank was often “high” on drugs. Additionally, he had been
belligerent with other family members in the past. Testimony
regarding three instances between 2013 and 2014 of Frank’s
belligerent behavior were provided at trial.
First, during a family party in 2013 while Kapesi was
dancing to music, Frank punched Kapesi in the face for “no
reason,” requiring family members to take Kapesi to a hospital
for stitches. The incident caused Matuu, who was still in high
school at the time, to fear Frank as he “kn[e]w for sure that
[Frank] [could] do that to anybody and to me, too.”
Second, in November 2014, Frank directly accosted Matuu
after Matuu returned from playing basketball, telling Matuu, “I
going beat you up.” Nothing came of the incident as Matuu, who
2
Although Frank was referred to as “Uncle Frank” by Kapesi, testimony
showed that Frank was Matuu’s cousin.
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did not know why Frank was mad, told Frank he did not want to
fight and then returned to the park.
Third, in December 2014, after hearing a sudden “crashing
in front of the garage” as if “something broke,” Matuu came out
of his room and saw one of his uncles get up from the sidewalk
as Frank walked away. The incident scared Matuu.
In the afternoon of January 23, 2015, when Matuu returned
home around three or four o’clock, it was apparent to Matuu that
Frank was high on drugs. Later, without interacting with Frank,
Matuu helped an uncle’s girlfriend prepare a meal in a slow
cooker. Matuu then returned to his room.
Around six in the evening after drinking one or two shots
of Ciroc3 with Kapesi, Matuu went to a friend’s house down the
road and smoked some marijuana. Matuu returned home around four
or five in the morning on January 24, 2015.
Upon returning home, Matuu went to the kitchen to scoop
food out of the slow cooker. According to Matuu, as he was
doing so, Frank accosted him:
[T]hat’s when all of a sudden Mr. Frank Kapesi . . .
approached me over here, and I seen him with my side -- my
side vision, and he came to me, and he was like, “Oh, you
fucka. Why you gotta come and eat all the food? Why you
gotta eat the food for?” I was looking at him. “Bro, I’m
not eating all the food. There’s still food in there. I
made this food. I helped somebody make this food.” But,
no, he got angry at me. I don’t even know what I did to
him, but he got mad. After I was making the food, he was
still approaching me. “Fucka, I telling you why you gotta
eat all the food?”
3
Ciroc is a brand of vodka.
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Matuu then retreated to his room, but Frank followed him and
kept yelling at him. According to Matuu,
he was telling me, “Oh, you don’t hear me, you fucka?” I
was telling him, “Bro, I’m not even -- I’m not even trying
to argue with you.” I’m just trying to make my food. I
was feeling good, buzzing, and I wanted to have a good time
because I just came from a friend’s house. And after that,
he was still yelling at me. “Oh, you fucka. Fuck you. I
going beat you up and I’ll put you in the hospital.” And
after that, I was like, “Bro.” Then I came around. Came
around, put my plate on the stool, came around and I stand
right here. And I was telling him -- I was trying to tell
him nicely, trying to calm him down, trying to kiss ass
because I know he can hurt me, or he can beat me up. I was
telling him, “Bro, why you gotta – why you gotta yell at
me? Why you gotta -- why you gotta say this kind of stuff
to me?” But, no, he didn’t -- he wasn’t even calm down.
He was already mad at me.
Matuu was “scared” during the verbal confrontation. Matuu
surmised that Frank must have seen that Matuu was fearful and
began punching Matuu. At first, Matuu blocked Frank’s punches;
ultimately Matuu grabbed and wrestled with Frank. While they
wrestled, Matuu thought that Frank “was gonna beat me up because
he was telling me he was going to put me in the hospital.”
Matuu also “was hoping that [Frank] wouldn’t get mad,” but Frank
nevertheless “was getting mad” while they wrestled.
Kapesi, who had heard Matuu and Frank argue about the food,
came out of his room when he heard something break. When Kapesi
found them wrestling on top of each other near Frank’s bed, he
“jumped in . . . to break them apart.” According to Kapesi,
Frank grabbed Kapesi, slammed him to the ground where he lost
his breath, and was on top of, but did not punch, Kapesi.
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In the meantime, Matuu was “scared” when Frank had slammed
Kapesi to the ground. According to Matuu, Frank was punching
Kapesi. Matuu thought that Frank would come after him when
Frank was “done with” Kapesi, and therefore Matuu needed to
“protect[] himself.” Thus, when Matuu had “br[oken] free” while
Frank was on top of Kapesi, he went to the kitchen and grabbed a
steak knife.
According to Matuu, when he came back from the kitchen,
Frank was still on Kapesi, so Matuu stabbed Frank once “on the
side” to “stop him” because he knew Frank was strong and
violent. After stabbing Frank, Matuu said to Frank: “I told
you, bro. I told you to stop, but you was pushing me, and you
was bothering me, and you was telling me you was going beat me
up and put me in the hospital.”
However, according to Kapesi, after he got his wind back,
he stood between Matuu and Frank and yelled, “Stop already.
Enough.” Kapesi saw Matuu return “fast” from the kitchen area.
Kapesi then put his hand up to stop Matuu from swinging at Frank
and received a cut on his hand. Kapesi was in shock, tended to
his cut for about thirty seconds, and the “next thing [he] knew,
Frank was on the ground” gasping for air.
An autopsy of Frank’s body showed multiple blunt force
injuries, four stab wounds of the torso, and two incised wounds,
i.e., wounds that are longer on the surface of the skin than
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they are deep. A knife blade was found within a wound track
that perforated the left lung and the pulmonary artery. Another
knife blade was found at the scene near Frank’s body, although
Matuu testified that he recalled grabbing only one knife. A
toxicology report showed that methamphetamine and amphetamine
were present in Frank’s blood.
B. Procedural Background
Opening statements were made on April 26, 2016, and trial
continued on April 28 and 29, 2016. After closing arguments,
the jury was instructed in relevant part to “consider all of the
instructions as a whole and consider each instruction in light
of all of the others”; to “presume the defendant is innocent of
the charge against him” as “the prosecution has the duty of
proving every material element of the offense charged against
the defendant beyond a reasonable doubt”; and that “[i]n order
for the prosecution to prove an element, all twelve jurors must
unanimously agree that the same act has been proved beyond a
reasonable doubt.”
The jury was then instructed on the “material elements” of
Murder in the Second Degree and all of its included offenses,
“each of which the prosecution must prove beyond a reasonable
doubt.” The circuit court further instructed that “[s]elf-
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defense is a defense to the charge of Murder in the Second
Degree and all of its included offenses.”4 Specifically:
Self-defense involves consideration of two issues. First,
you must determine whether the defendant did or did not use
“deadly force.” Second, you must determine whether the
force used was justified. The burden is on the prosecution
to prove beyond a reasonable doubt that the force used by
the defendant was not justified. If the prosecution does
not meet its burden, then you must find the defendant not
guilty.
. . . .
If you determine that the defendant used “deadly
force,” then you are to proceed to the section in this
instruction entitled “Deadly Force Used.” If you determine
that the defendant did not use “deadly force,” then you are
to proceed to the section in this instruction entitled
“Deadly Force Not Used.” You must then follow the law in
the applicable section to determine the second issue, which
is whether the force used by the defendant was justified.
(Emphasis added.) The circuit court similarly instructed that
“[d]efense[-]of[-]others is a defense to the charge of Murder in
the Second Degree and all of its included offenses,” and gave
similar instructions regarding the “issues” the jury was to
consider.5 The circuit court also instructed that “[a] verdict
must represent the considered judgment of each juror, and in
4
Matuu had requested a self-defense instruction. “[A] defendant is
entitled to a requested jury instruction on a defense when he presents some
evidence going to the defense.” State v. Taylor, 130 Hawaiʻi 196, 207, 307
P.3d 1142, 1153 (2013) (citing State v. Stenger, 122 Hawaiʻi 271, 226 P.3d 441
(2010)).
5
Matuu did not propose a defense-of-others instruction. The circuit
court, however, correctly gave an instruction on this justification defense.
See Taylor, 130 Hawaiʻi at 207, 307 P.3d at 1153 (holding that if a defendant
does not request a defense instruction, a circuit court’s failure to instruct
on such a defense where there is evidence of the defense upon which a
reasonable juror could harbor a reasonable doubt as to the defendant’s guilt,
will be reviewed for plain error).
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order to reach a verdict, it is necessary that each juror agree
thereto. In other words, your verdict must be unanimous.”
Matuu’s proposed self-defense instruction, which was
rejected by the circuit court, differed in relevant part from
the circuit court’s given instruction, as it had proposed to
clearly instruct the jury that its determination as to whether
the defendant used “deadly force” be unanimous by adding the
following underlined language:
If you unanimously determine beyond a reasonable
doubt that the defendant used “deadly force,” then you are
to proceed to the section in this instruction entitled
“Deadly Force Used.” If you determine that the defendant
did not use “deadly force,” or are unable to reach
unanimous agreement on this issue, then you are to proceed
to the section in this instruction entitled “Deadly Force
Not Used.” You must then follow the law in the applicable
section to determine the second issue, which is whether the
force used by the defendant was justified.
On April 29, 2016, a jury convicted Matuu of the lesser
included offense of Assault in the First Degree, a violation of
HRS § 707-710.6 He was sentenced to five years of incarceration
as a young adult defendant and ordered to pay restitution and
fees.
C. Appeal to the ICA
Matuu timely filed a Notice of Appeal to the ICA, and
presented two points of error:
6
“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. . . .” HRS § 707-710 (2014).
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A. There was no substantial evidence to support Matuu’s
conviction where the State did not prove beyond a
reasonable doubt facts negating his justification defenses.
B. Matuu’s conviction must be vacated where the Circuit
Court’s instruction on the use of deadly force in self-
protection was prejudicially erroneous and misleading.
On the first issue, Matuu argued that the evidence at trial
established that Matuu subjectively believed that his use of
force was necessary in self-defense and that such belief was
objectively reasonable. Matuu pointed to the fact that Frank
abused drugs often and did so on the night in question,
exhibited volatile behavior, and in three prior instances, Frank
behaved belligerently or violently toward either Matuu or
another family member. Additionally, because Matuu had seen
Frank punch Kapesi in the past, “Matuu reasonably believed that
Kapesi would have been justified in using deadly force to
protect himself from Frank’s attack” when Frank had slammed
Kapesi to the ground, thereby supporting Matuu’s defense-of-
others justification.
On the second issue, Matuu asserted that the circuit
court’s self-defense instruction, which omitted Matuu’s proposed
language regarding unanimity and the prosecution’s “beyond a
reasonable doubt” burden of proof, was erroneous because “the
jury may not have unanimously determined beyond a reasonable
doubt that Matuu had used ‘deadly force’ . . . . The erroneous
instructions were not harmless as the jury could have then
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rejected self-defense because it found that Matuu could have
used ‘force’ in self-defense, but not ‘deadly force.’”
The ICA rejected the challenges. As to the first issue,
the ICA identified substantial evidence in the record showing
that even if Matuu subjectively believed that his use of force
was necessary in self-defense, that belief was not reasonable
because evidence showed that Frank was stabbed multiple times
with two knives, and such force was not necessary for self-
defense when Frank was unarmed. See Matuu, SDO at 6.
As to the second issue, the ICA noted that the instruction
for assault in the first degree necessitated a finding that
Matuu had used “deadly force.” Additionally, as jury
instructions are to be considered as a whole, see Matuu, SDO at
10 (citing Samson v. Nahulu, 136 Hawaiʻi 415, 425, 363 P.3d 263,
273 (2015)), the ICA concluded the jury instructions included
appropriate unanimity instructions. For example, the ICA
observed that the jury was explicitly instructed that “in order
to convict, the jury must unanimously agree to each element of
the crime beyond a reasonable doubt,” and that “‘[t]he burden is
on the prosecution to prove beyond a reasonable doubt that the
force used by the defendant was not justified. If the
prosecution does not meet its burden, then you must find the
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defendant not guilty.’” Matuu, SDO at 11.7 According to the
ICA, the jury was also given a general unanimity instruction.
See Matuu, SDO at 10. Accordingly, the ICA concluded that
Matuu’s instruction using additional unanimity language was not
necessary. See id.
Now on appeal to this court, Matuu reasserts the same
questions he had posed to the ICA:
1. Whether the ICA gravely erred in holding that there
was substantial evidence to support Matuu’s conviction
where the State failed to prove beyond a reasonable doubt
facts negating his justification defenses?
2. Whether the ICA gravely erred in holding that the
Circuit Court’s jury instruction on the use of deadly force
in self-protection [and defense-of-others] was
prejudicially erroneous and misleading?
For the following reasons, although the ICA erred in
concluding that the elements instruction addressed the unanimity
required to disprove the justification defenses, the
instructions as a whole were not insufficient, erroneous,
inconsistent, or misleading. We therefore affirm the ICA’s
Judgment on Appeal that affirms the circuit court’s Judgment of
Conviction and Sentence, and provide the following guidance
regarding the inclusion of the unanimity requirement for the
negativing defenses element.
7
The full text is available on page 21, infra.
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III. Standards of Review
A. Jury Instructions
The standard of review for a trial court’s issuance or
refusal of a jury instruction is whether, when read and
considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the
error was not prejudicial. In other words, error is not to
be viewed in isolation and considered purely in the
abstract.
State v. Kassebeer, 118 Hawaiʻi 493, 504, 193 P.3d 409, 420
(2008) (internal quotation marks, citations, and brackets
omitted) (quoting State v. Mainaaupo, 117 Hawaiʻi 235, 247, 178
P.3d 1, 13 (2008)).
B. Sufficiency of the Evidence
The appellate court reviews the sufficiency of evidence on
appeal as follows:
[E]vidence 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 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.
State v. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241 (1998)
(quoting State v. Quitog, 85 Hawaiʻi 128, 145, 938 P.2d 559, 576
(1997)). “‘Substantial evidence’ as to every material element
of the offense charged is credible evidence which is of
sufficient quality and probative value to enable a person of
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reasonable caution to support a conclusion.” Id. (internal
quotation marks and citation omitted).
IV. Discussion
We proceed by examining Matuu’s second question regarding
jury instructions before proceeding to discuss the first
question regarding substantial evidence.
A. The ICA Correctly Concluded That the Jury Instructions,
When Viewed as a Whole, Were Not Prejudicially Erroneous or
Misleading, Although It Erred by Concluding the Instruction
Requiring Unanimity in Finding the Elements Included the
Justification Defenses
1. Matuu’s specific concern that the jury may not have
unanimously agreed that he used “deadly force” lacks
basis.
At trial, in relevant part, the parties agreed to the
following instruction regarding Assault in the First Degree
proposed by the court:
If and only if you find the defendant, Dean Victor
Matuu, not guilty of Manslaughter, or you are unable to
reach a unanimous verdict as to this offense, then you must
consider whether the defendant is guilty or not guilty of
the included offense of Assault in the First Degree.
A person commits the offense of Assault in the First
Degree if he intentionally or knowingly causes serious
bodily injury to another person.
There are two material elements of the offense of
Assault in the First Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These two elements are:
1. That on or about January 24, 2015, in the City
and County of Honolulu, State of Hawaii, the Defendant
caused serious bodily injury to Frank Kapesi; and
2. That the Defendant did so intentionally or
knowingly.
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“Serious bodily injury” means bodily injury which
creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.
(Emphasis added.)
With respect to the justification of self-protection, the
circuit court’s proposed instruction began:
Self-defense is a defense to the charge of Murder in
the Second Degree and all of its included offenses . . . .
Self-defense involves consideration of two issues. First,
you must determine whether the defendant did or did not use
“deadly force.” Second, you must determine whether the
force used was justified. If the prosecution does not meet
its burden, then you must find the defendant not guilty.
The first issue is: Did the defendant use “deadly
force?”
“Deadly Force” means force which the defendant uses
with the intent of causing, or which he knows to create a
substantial risk of causing[] death or serious bodily
injury.
“Force” means any bodily impact, restraint, or
confinement, or the threat thereof.
“Serious bodily injury” means bodily injury which
creates a substantial risk of death or which causes serious
permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.
Matuu then proposed to add the following underlined language to
the relevant remaining portion of the court’s proposed
instruction:
If you unanimously determine beyond a reasonable doubt that
the defendant used “deadly force,” then you are to proceed
to the section in this instruction entitled “Deadly Force
Used.” If you determine that the defendant did not use
“deadly force,” or are unable to reach unanimous agreement
on this issue, then you are to proceed to the section in
this instruction entitled “Deadly Force Not Used.”
The circuit court refused Defendant’s proposed instruction.
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Matuu contends that without the underlined language, e.g.,
“unanimous[ly]” or “beyond a reasonable doubt,” when the jury
proceeded through its instructions regarding self-protection, it
may not have unanimously determined beyond a reasonable doubt
that the defendant had used deadly force. Matuu asserts that as
a consequence, the jury may have therefore inappropriately
limited the scope of justifiable acts only to those necessary to
protect against death or seriously bodily injury;8 had the jury
instead been unable to unanimously agree beyond a reasonable
doubt that deadly force had been used, then the range of
justifiable acts would include those necessary to protect
against any “unlawful force.”9
This argument lacks merit. The ICA correctly noted that
the jury was first instructed on the elements of first degree
assault, which were required to be proven by the prosecution
beyond a reasonable doubt. See Matuu, SDO at 9. Specifically,
the jury was required to find beyond a reasonable doubt that (1)
“Defendant caused serious bodily injury to Frank Kapesi,” and
(2) “[t]hat the Defendant did so intentionally or knowingly.”
8
“The use of deadly force upon or toward another person is justified if
the defendant reasonably believes that deadly force is immediately necessary
to protect himself on the present occasion against death or serious bodily
injury.”
9
“The use of force upon or toward another person is justified if the
defendant reasonably believes that force is immediately necessary to protect
himself on the present occasion against the use of unlawful force by the
other person.”
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As “deadly force” means “force which the defendant uses with the
intent of causing, or which he knows to create a substantial
risk of causing, death or serious bodily injury,” the elements
of first degree assault inherently require a finding that
“deadly force” was used by Matuu. Additionally, the jury was
further instructed that the finding as to assault in the first
degree must be unanimous. Thus, that the jury found Matuu
guilty of assault in the first degree necessarily means the jury
unanimously found beyond a reasonable doubt that Matuu had used
“deadly force.” Accordingly, Matuu’s specific concern that the
jury may not have unanimously agreed that he used “deadly force”
lacks basis.
2. The ICA erred in relying on the circuit court’s
general unanimity instruction in its analysis.
We next take a closer examination of the justification
instructions given the nature of Matuu’s issue on appeal,
whether the justification instructions’ lack of an express
unanimity requirement rendered the jury instructions, when
viewed as a whole, prejudicially insufficient, erroneous,
inconsistent, or misleading, and whether it affirmatively
appears from the record as a whole that the error was not
prejudicial. See Kassebeer, 118 Hawaiʻi at 504, 193 P.3d at 420.
As provided in HRS § 702-205(b) (2014), the negativing of
certain defenses is an element of an offense:
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Elements of an offense. The elements of an offense are
such (1) conduct, (2) attendant circumstances, and (3)
results of conduct, as:
(a) Are specified by the definition of the
offense, and
(b) Negative a defense (other than a defense
based on the statute of limitations, lack of venue,
or lack of jurisdiction).
HRS § 702-205. Thus, the State was required to prove beyond a
reasonable doubt that Matuu’s self-defense or defense-of-others
justification was “negative[d].” Id.; see HRS § 701-114 (2014)
(“[N]o person may be convicted of an offense unless the
following are proved beyond a reasonable doubt . . . [e]ach
element of the offense . . . .”).
The circuit court’s general unanimity instruction stated
that “[i]n order for the prosecution to prove an element, all
twelve jurors must unanimously agree that the same act has been
proved beyond a reasonable doubt.” In addition, the circuit
court instructed the jury that “[t]he burden is on the
prosecution to prove beyond a reasonable doubt that the force
used by the defendant was not justified.”
However, the general unanimity instruction required only
that all jurors unanimously agree that the same act be proven
beyond a reasonable doubt with respect to an “element” of an
offense. Although negativing Matuu’s justification defenses is,
as a matter of law, an element of Assault in the First Degree,
see HRS § 702-205(b), the circuit court did not include the
justifications of self-defense or defense-of-others as an
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“element” of Assault in the First Degree. The circuit court
also did not include in the justifications instructions the
requirement that jurors must unanimously conclude the
prosecution had disproven the defenses beyond a reasonable
doubt. Thus, it may not have been readily apparent to the
jurors that the general unanimity instruction regarding the
“elements” of an offense applied to the prosecution’s negativing
of Matuu’s self-defense and defense-of-others justifications.
The ICA did not observe that the unanimity instruction
given by the circuit court applied only to “elements” identified
by the circuit court, and therefore did not clearly apply to the
negativing of Matuu’s justification defenses. To the extent the
ICA’s SDO stated that the circuit court’s unanimity instruction
applied to the justification instructions, we now clarify the
ICA decision.10
10
Although this court has held that a defendant was not prejudiced when
the defenses of self and others were not included in the elements
instructions of the charged crime, see State v. Augustin, 101 Hawaiʻi 127, 63
P.3d 1097 (2002), as this court has stated, the right embodied in Hawaiʻi
Rules of Penal Procedure (“HRPP”) Rule 31(a) requiring that a verdict be
unanimous is a substantial one. See State v. Arceo, 84 Hawaiʻi 1, 33, 928
P.2d 843, 875 (1996). To the extent the ICA’s SDO suggests that a specific
unanimity instruction is not needed for justifications such as self-defense
and defense-of-others warrants further examination, as this court has
provided only limited circumstances in which a specific unanimity instruction
is not required. See, e.g., State v. Rapoza, 95 Hawaiʻi, 22 P.3d 968 (2001)
(concluding that a specific unanimity instruction was not required “if the
conduct element of an offense is proved by the prosecution to have been a
series of acts constituting a continuous course of conduct and the offense is
statutorily defined in such a manner as to not preclude it from being a
‘continuous offense’”).
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The circuit court’s instructional error, however, was not
prejudicial. In explaining why the jury instructions, when
viewed as a whole, were not prejudicially insufficient
erroneous, inconsistent, or misleading, the ICA correctly noted:
In addition, “[j]ury instructions . . . must be
considered as a whole. Moreover, a refusal to give an
instruction that correctly states the law is not in error
if another expressing a substantially similar principle is
given.” Here, the court sufficiently instructed the jury
regarding unanimity. The court first stated that in order
to convict, the jury must unanimously agree to each element
of the crime beyond a reasonable doubt.[11] Then the court
gave a general unanimity instruction.[12] In addition, in
the instruction for self-defense, the court instructed the
jury that “[t]he burden is on the prosecution to prove
beyond a reasonable doubt that the force used by the
defendant was not justified. If the prosecution does not
meet its burden, then you must find the defendant not
guilty.” The additional unanimity instruction requested by
Matuu was unnecessary.
Matuu, SDO at 10–11. As previously discussed, the circuit court
had instructed: “The burden is on the prosecution to prove
beyond a reasonable doubt that the force used by the defendant
was not justified. If the prosecution does not meet its burden,
11
It is not entirely clear to which specific instruction the ICA refers.
The “presumption of innocence/reasonable doubt” instruction does not include
unanimity language.
12
Presumably, the “general unanimity instruction” refers to the
instruction patterned on Instruction No. 8.02 of the Hawaiʻi Pattern Jury
Instructions. The circuit court’s instruction stated:
The law allows the introduction of evidence for the purpose
of showing that there is more than one act upon which proof
of an element of an offense may be based. In order for the
prosecution to prove an element, all twelve jurors must
unanimously agree that the same act has been proved beyond
a reasonable doubt.
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then you must find the defendant not guilty.”13 The circuit
court had also instructed the jury that “[a] verdict must
represent the considered judgment of each juror, and in order to
reach a verdict, it is necessary that each juror agree thereto.
In other words, your verdict must be unanimous.”
When these instructions are read together, a juror, who
does not find the State to have met its burden of proving beyond
a reasonable doubt that Matuu’s use of deadly force was not
justified, “must find the defendant not guilty.” Because
“juries are presumed to . . . follow all of the trial court’s
instructions,” State v. Knight, 80 Hawaiʻi 318, 327, 909 P.2d
1133, 1142 (1996) (quoting Sato v. Tawata, 79 Hawaiʻi 14, 21, 897
P.2d 941, 948 (1995)), each of the jurors must have unanimously
determined that the State met its burden of proving beyond a
reasonable doubt that Matuu’s use of deadly force was not
justified. As such, based on the record as a whole, the circuit
court’s instructions were not “prejudicially insufficient,
erroneous, inconsistent, or misleading.” See Kassebeer, 118
Hawaiʻi at 504, 193 P.3d at 420.
Thus, although the ICA did not refer to the “unanimous
verdict” instruction, it correctly concluded that the jury
13
This appears to explain in lay terms to the jury that the prosecution’s
burden of negativing Matuu’s self-defense justification is indeed an
“element.” However, it does not imply that the general unanimity instruction
applies to the self-defense instruction, as the ICA appears to have
suggested.
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instructions, when viewed as a whole, were not prejudicially
insufficient, erroneous, inconsistent, or misleading. See
Matuu, SDO at 11.
The unanimity requirement as to negativing the defenses
would have been much clearer to the jury, however, if it was
specifically included in the instructions regarding the State’s
burden to negative the justification defenses. We therefore
provide guidance that the circuit courts should follow this
practice.
B. Substantial Evidence Supports the Negativing of Matuu’s
Justifications of Self-defense and Defense-of-others
Matuu also argues that there was insufficient evidence to
negative the defenses of self-defense and defense-of-others.
This argument also lacks merit.
Once evidence of justification has been adduced, the
prosecution has the burden of disproving it beyond a reasonable
doubt. See State v. Culkin, 97 Hawaiʻi 206, 215, 35 P.3d 233,
242 (2001) (citing HRS §§ 702-205(b), 703–301(1) (1993); State
v. Lubong, 77 Hawaiʻi 429, 431, 886 P.2d 766, 768 (App. 1994)).
The test for assessing a defendant’s self-protection
justification pursuant to HRS § 703-304 (2014)14 involves two
14
Use of force in self-protection. (1) Subject to the
provisions of this section and of section 703-308, the use
of force upon or toward another person is justifiable when
the actor believes that such force is immediately necessary
(continued . . .)
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prongs because HRS § 703-300 (2014) defines “believes” as
“reasonably believes”:
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.
Culkin, 97 Hawaiʻi at 215, 35 P.3d at 242 (quoting Lubong, 77
Hawaiʻi at 433, 886 P.2d at 770). On appeal, Matuu argues that
substantial evidence does not exist to support the requisite
findings under either prong.
As the ICA discussed, even assuming Matuu had the requisite
belief that his use of force was necessary (prong 1), there was
substantial evidence in the record to support a finding that a
reasonably prudent person in the same situation as Matuu would
not have believed that the force exercised by Matuu was
immediately necessary for self-protection (prong 2). See Matuu,
(. . . continued)
for the purpose of protecting himself against the use of
unlawful force by the other person on the present occasion.
(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.
. . . .
HRS § 703-304.
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SDO at 6. For example, Matuu testified that he was able to
“break free” when Kapesi intervened. Accordingly, a person of
reasonable caution could conclude that upon “break[ing] free,”
it was not reasonable for Matuu to then go to the kitchen,
obtain a knife, and return to stab Frank, who was unarmed.
Additionally, although Matuu testified he recalled grabbing only
one knife and stabbing Frank once, the autopsy report showed
Frank was stabbed multiple times and two bloodied knife blades
were recovered — one lodged in a wound track in Frank’s chest
and another on the floor near Frank’s body. As noted by the
ICA, a person of reasonable caution could conclude “that it was
[not] necessary [for Matuu] to stab Frank in the torso multiple
times to protect himself against death or serious injury.”
Matuu, SDO at 7.
A similar two-prong subjective/objective approach is
necessary to analyze a defense-of-others justification pursuant
to HRS § 703-305 (2014).15 As to prong 1, or the subjective
inquiry, “[t]he commentary to HRS § 703–305 states that this
15
Use of force for the protection of other persons. (1)
Subject to the provisions of this section and of section
703-310, the use of force upon or toward the person of
another is justifiable to protect a third person when:
(a) Under the circumstances as the actor believes
them to be, the person whom the actor seeks to protect
would be justified in using such protective force; and
(b) The actor believes that the actor’s intervention
is necessary for the protection of the other person.
. . . .
HRS § 703-305.
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section ‘permits a person to use force to protect another person
when [(a)] the actor believes the other person would have been
justified in using force to protect himself and [(b)] he
believes that his intervention is necessary to protect the other
person.’” State v. Mark, 123 Hawaiʻi 205, 220, 231 P.3d 478, 493
(2010) (emphasis in original) (footnote omitted). Prong 2, or
the objective inquiry, is necessary because, as noted
previously, “believes” means “reasonably believes.” HRS § 703–
300.
The ICA’s analysis of whether sufficient evidence was
presented to negative Matuu’s defense-of-others justification
focused solely on prong 1(a). It first states that the jury may
have simply believed Kapesi’s testimony over Matuu’s. Thus,
with respect to prong 1(a), the jury could have concluded that
“although Frank slammed Kapesi to the ground, Frank did not hit
Kapesi and Kapesi had regained his wind and was on his feet
trying to keep Frank and Matuu apart when Frank was stabbed.”
Matuu, SDO at 7. Accordingly, “the jury was well within its
province to conclude that the evidence proved beyond a
reasonable doubt that Kapesi would not have been justified in
stabbing Frank under these circumstances.” Matuu, SDO at 7–8.
In other words, a person of reasonable caution could have relied
on Kapesi’s testimony (and disbelieved Matuu’s testimony) that
Frank did not punch Kapesi when Kapesi intervened in the January
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24, 2015 altercation, and therefore conclude that Matuu did not
have the requisite subjective belief that Kapesi would have been
justified in stabbing Frank.
Similarly, with respect to prong 1(b), substantial evidence
supports the conclusion that Matuu did not actually “believe
that [his] intervention [wa]s necessary for the protection” of
Kapesi. See HRS § 703-305(b). For example, as stated
previously, a person of reasonable caution could have concluded
that Frank did not punch Kapesi after Kapesi attempted to
separate Frank and Matuu, and therefore Matuu did not believe it
was necessary for him to intervene.
A person of reasonable caution could also have concluded
that even if Frank had punched Kapesi on January 24, 2015, Matuu
was nevertheless unconcerned with Kapesi’s well-being. At
trial, Matuu testified that because he was “scared” Frank would
target him after Frank was “done with” Kapesi, he needed to
“protect[] himself” by grabbing a knife from the kitchen.
However, Matuu also testified that after stabbing Frank, Matuu
said to Frank: “I told you, bro. I told you to stop, but you
was pushing me, and you was bothering me, and you was telling me
you was going beat me up and put me in the hospital.” Because
Matuu said nothing about Frank punching Kapesi, and nothing in
Matuu’s testimony showed he was otherwise concerned with
Kapesi’s well-being, a person of reasonable caution could have
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concluded that Matuu was not concerned about Kapesi, and
therefore conclude that Matuu did not believe that he needed to
use force against Frank to protect Kapesi.
Yet, even if it were assumed that both parts of prong 1
were satisfied – that Matuu had the requisite subjective belief
that (a) Kapesi would have been justified in using force to
protect himself against Frank, and (b) Matuu’s intervention was
necessary to protect Kapesi — there was sufficient evidence to
support a jury’s finding as to Prong 2, i.e., that Matuu’s
belief was not “reasonable.”
Evidence shows that Kapesi was not afraid of Frank despite
being punched by him on a previous occasion and requiring
stitches; Kapesi voluntarily came out of his room to stop Frank
and Matuu’s fight even though Frank was “high on drugs”; and the
only injury Kapesi appeared to have suffered from the incident
was a stab wound to the hand caused by Matuu. Thus, a person of
reasonable caution could have concluded that Kapesi would not
have been justified in stabbing Frank multiple times to protect
himself against Frank’s punches, or that Matuu’s intervention
was necessary to protect Kapesi, and therefore, any subjective
belief Matuu may have had was not reasonable.
V. Conclusion
For the foregoing reasons, we affirm the ICA’s November 17,
2017 Judgment on Appeal entered pursuant to its SDO. The ICA
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correctly concluded that Matuu’s conviction was supported by
substantial evidence and that the circuit court’s jury
instructions were not prejudicially erroneous or misleading.
However, we provide guidance that the requirement for unanimity
should specifically be included in justification instructions.
Jon N. Ikenaga /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
29